Stephen D. LITTLE and Kathryn L. Dietz, Petitioners and Appellees, v. J. Patrick TRAYNOR, Executive Director of the North Dakota Workers Compensation Bureau, and the North Dakota Workers Compensation Bureau, Respondents and Appellants.
Civil No. 960283.
Supreme Court of North Dakota.
June 27, 1997.
1997 ND 128 | 565 N.W.2d 766
[¶ 14] Towne asserts the trial court erred in ordering him to pay Dinius $150 in costs and attorney fees as a sanction for discovery violations.
[¶ 15] The order directing that Towne pay Dinius $150 is affirmed. The judgment dismissing Towne‘s complaint is reversed, and we remand for further proceedings.
[¶ 16] VANDE WALLE, C.J., and NEUMANN, SANDSTROM and MESCHKE, JJ., concur.
Dean J. Haas, of Dietz, Little & Haas, Bismarck, for petitioners and appellees.
Brent J. Edison (argued), Special Assistant Attorney General, and Tracy Vigness Kolb (appearance), Special Assistant Attorney General, Bismarck, for respondents and appellants.
SANDSTROM, Justice.
I
[¶ 2] During the latter part of 1995, the Bureau conducted rulemaking proceedings under
[¶ 3] The new rules were promulgated and, on October 30, 1995, were found by the Attorney General to be in compliance with
“Attorney fees. Following an attempt to resolve a dispute through the worker adviser program, fees for legal services provided by employees’ attorneys and legal assistants working under the direction of employees’ attorneys will be paid when an order reducing or denying benefits is submitted to administrative hearing, district court, or supreme court and the employee prevails; when an order reducing or denying benefits is submitted to binding arbitration and the employee prevails; or when an informal decision reducing or denying benefits is submitted to binding dis-
pute resolution and the employee prevails subject to the following: “1. Attorneys must be paid at the rate of eighty-five dollars per hour for all actual and reasonable time other than traveltime when the matter is submitted to formal administrative hearing, to binding arbitration, or to binding dispute resolution and the employee prevails. Traveltime must be paid at the rate of forty dollars per hour.
* * * * * *
“3. Total fees paid by the bureau for all legal services in connection with a claim may not exceed the following:
* * * * * *
“b. At a rate of eighty-five dollars per hour the sum of seven hundred dollars, plus reasonable costs incurred, for legal services in connection with an offer by the bureau to make a lump sum settlement pursuant to subsection 1 of North Dakota Century Code section 65-05-25.
“c. The total sum of one thousand eight hundred dollars, plus reasonable costs incurred, following issuance of an administrative order under North Dakota Century Code chapter 28-32 reducing or denying benefits, for services provided if the formal hearing request is resolved by settlement before the evidentiary hearing is held.
“d. The total sum of three thousand six hundred dollars, plus reasonable costs incurred, if the employee prevails after an evidentiary hearing is held.
“e. The total sum of four thousand dollars, plus reasonable costs incurred, if the employee‘s district court appeal is settled prior to submission of briefs. The total sum of five thousand five hundred dollars, plus reasonable costs incurred, if the employee prevails after hearing by the district court.
“f. The total sum of six thousand five hundred dollars, plus reasonable costs incurred, if the employee‘s North Dakota supreme court appeal is settled prior to hearing. The total sum of seven thousand two hundred dollars, plus reasonable costs incurred, if the employee prevails after hearing by the supreme court.
“g. If the bureau has awarded benefits and the employer requests a rehearing, the bureau may, in its discretion, pay the employee‘s attorney fees and costs in connection with the rehearing. Total fees paid pursuant to this section may not exceed the sum of one thousand five hundred dollars.
“h. The total sum of six hundred dollars, plus reasonable costs incurred, for services in connection with binding arbitration, if the employee prevails, provided further that the fees may not exceed twenty percent of the amount awarded.
“i. The total sum of one thousand dollars, plus reasonable costs incurred, if the employee requests binding dispute resolution and prevails. The total sum of five hundred dollars plus reasonable costs incurred, if the employer requests binding dispute resolution and the employee prevails.
* * * * * *
“9. The following costs will be reimbursed:
* * * * * *
“e. Other reasonable and necessary costs, not to exceed one hundred dollars. Other costs in excess of one hundred dollars may be reimbursed only upon agreement, in advance, by the bureau. Costs for typing and clerical or office services will not be reimbursed.”
[¶ 4] In January 1996, Little and Dietz appealed the Bureau‘s rulemaking action to district court. The Bureau moved for leave to pursue discovery and seek information about Little and Dietz‘s recovery of attorney fees from their clients’ permanent partial impairment awards and their recovery of fees from their clients in instances where fees were not paid by the Bureau. Little and Dietz opposed the motion and requested an award of attorney fees under either
[¶ 5] The district court ruled the Bureau had arbitrarily and capriciously applied the authority granted to it by
[¶ 6] The district court also held
[¶ 7] The district court had jurisdiction under
II
[¶ 8] In an appeal from an administrative agency‘s rulemaking action, our standard of review is the same standard applied by the district court. See
A
[¶ 9] The Legislature specifically directed the Bureau to “establish, by administrative rule, a reasonable maximum hourly rate and a maximum fee to compensate an injured employee‘s attorney for legal services following issuance of an administrative order under chapter 28-32 reducing or denying benefits.”
[¶ 10] The Bureau asserts its promulgation of the maximum hourly rate and fee caps in
[¶ 11] The Administrative Agencies Practice Act, in
“The agency shall adopt a procedure whereby all interested persons are afforded reasonable opportunity to submit data, views, or arguments, orally or in writing, concerning the proposed rule, including data respecting the impact of the proposed rule. In case of substantive rules, the agency shall conduct an oral hearing. The agency shall consider fully all written and oral submissions respecting a proposed rule prior to the adoption, amendment, or repeal of any rule not of an emergency nature. The agency shall make a written record of its consideration of all written and oral submissions contained in the rulemaking record respecting a proposed rule.”
B
[¶ 12] When an administrative agency adopts rules under the Act, it is acting in a quasi-legislative, not a quasi-judicial, capacity. See Colo. Ground Water v. Eagle Peak Farms, 919 P.2d 212, 216 (Colo. 1996). The importance of this distinction is stressed in I K. Davis & R. Pierce, Administrative Law Treatise § 7.5, at p. 322 (3d ed. 1994) (Davis & Pierce):
“To appreciate the significance of the controversy concerning the extent to which courts should require agencies to support the factual predicates of rules requires recognition of the nature of the factual disputes that dominate rulemaking proceedings. In promulgating a rule, an agency rarely is required to resolve a dispute concerning an adjudicative fact. Adjudicative facts are the kind of specific historic facts that are resolved by a jury in a judicial trial—who, what, where, when, and why. Disputes concerning the factual predicates of rules almost invariably concern legislative facts. Legislative facts are the general facts on which all legal institutions—legislatures, courts, and agencies—predicate rules of law.... Legislatures and courts are not required to provide any evidentiary support for the facts on which they predicate rules of law. Courts often require agencies to provide some evidentiary support for the legislative facts that provide the predicate for agency rules, but courts should recognize that legislative facts are not susceptible to the kind of evidentiary proof routinely required to support findings of adjudicative facts.”
(Emphasis in original).
[¶ 13] Many courts have adhered to the philosophy that, because rulemaking is more often policy oriented rather than adjudicatory in nature, the record upon which it is based need not be as complete as in the adjudicatory situation where traditional factfinding is required. See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 547-548, 98 S.Ct. 1197, 1213-1214, 55 L.Ed.2d 460 (1978); Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457, 479 (D.Kan. 1978) aff‘d, 602 F.2d 929 (10th Cir. 1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980); City of Aurora v. Public Utilities Com‘n, 785 P.2d 1280, 1287 (Colo. 1990). Some courts have ruled, however, there must be evidentiary support for a factual premise upon which a rule is based, or for a factual ingredient of the regulation. See Citizens for Free Enterprise v. Dept. of Rev., 649 P.2d 1054, 1061 (Colo. 1982); Anheuser-Busch, Inc. v. Dept. of Business, 393 So.2d 1177, 1182 (Fla.Ct.App. 1981). As the court said in Mammenga v. Dept. of Human Services, 442 N.W.2d 786, 791 (Minn. 1989), “[t]he rulemaking record varies with the nature of the rule; in some cases a substantial evidentiary record may be needed, ... while in other cases, ‘common knowledge’ or ‘common sense’ will suffice.”
[¶ 15] In these jurisdictions, adjudicatory concepts of evidentiary proof have been interjected into the realm of non-judicial rulemaking by the administrative procedure statutes governing rulemaking. For example, the Federal Administrative Procedure Act expressly places upon the proponent of a rule the “burden of proof” and requires the rule be “supported by and in accordance with the reliable, probative, and substantial evidence.”
[¶ 16] The Administrative Agencies Practice Act contains no provisions incorporating adjudicatory agency functions into agency rulemaking actions. Rather, the district court incorporated adjudicatory concepts into this rulemaking action by finding “no evidence at all” to support the maximum hourly rate and fee caps and remanding for a redetermination “based upon an adequate record.” Absent legislative authorization, we will not apply concepts of evidentiary proof suitable in an adjudicatory setting to an agency‘s rulemaking action. Compare Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131, 137 (N.D. 1984) (record of city council proceedings did not require transcribed and sworn testimony).
[¶ 18] We review the adequacy of the rulemaking record in this case with the foregoing concepts in mind.
C
[¶ 19] The rulemaking record includes a partial transcript of the public hearing relating to Little and Dietz‘s objections to the rules, as well as the written comments of those who objected. Little wrote the rate for “contingent legal work is unreasonable” and argued “[c]laimant‘s attorneys, whose fee is contingent on prevailing and who generally are more experienced than the Bureau‘s retained counsel, are entitled to an increased hourly rate.” Attorney Dean J. Haas, who works with Little and Dietz, wrote and argued the “insufficiency of fees paid to an employee‘s attorney is evidenced by the fact that defense counsel are paid the same hourly rate, but on a non-contingent basis, with no fee caps.” (Emphasis in original). Haas argued a “fee contingent upon recovery is reasonable, so long as the overall level of compensation is sufficient to compensate attorneys who represent injured workers over the long haul.” Haas proposed, because fees are paid only when an injured worker prevails, “the statutory cap on fees at 20% of the recovery should be the fee, unless the recovery thereby resulting is clearly excessive.” In the alternative, Haas proposed “to raise the hourly rate to $120.00, and raise the maximum fee caps by $1000 per level of proceeding.” Haas argued the increase was “necessary to ensure that employees can continue to receive adequate representation.”
[¶ 20] The record contains a table of worker compensation attorney fees provisions for each state, and a summary of that compilation. The summary notes 30 states pay attorney fees only if the claimant prevails on a dispute and 27 states pay attorney fees directly from a percentage out of the claimant‘s award. The summary points out 31 states have implemented a cap on attorney fees ranging from 15 percent to 30 percent of the actual award, with the majority of those states setting the cap at 20 percent. The summary also notes one state has a monetary cap in addition to a percentage cap on attorney fees and two states have monetary caps alone. The record also contains two letters of intent from North Dakota law firms to represent the Bureau in litigation at the rate of $85 per hour.
[¶ 21] The record includes the notice of public hearing, copies of the proposed rule, the regulatory analysis required by
“The Bureau, in further review of the rule, has determined that the hourly rate paid to attorneys should be the same regardless of the type of proceeding.
* * * * * *
“The [B]ureau believes the $85 an hour fee is reasonable compensation for work in these cases. The [B]ureau has greater control over the amount spent for the contracted attorneys and greater control over the number of cases they handle. Allowing payment of fees only in cases in which
the injured worker prevails, is intended to result in pre-screening of cases to determine whether the case has merit. * * * * * *
“Tiering of the fee schedule acknowledges that attorney time needed for different phases of litigation varies. Tiering of the fee schedule does not serve to reduce the caps. In fact, the rule proposes to add two more tiers to the district court and supreme court levels to acknowledge that appeals that are not heard before the court due to settlement, may require the attorney to spend additional time negotiating a settlement and, as a result, additional fee payment is appropriate.”
During the hearing, a Bureau representative, in explaining its rationale for the various caps, said “we‘re just trying to make the caps correspond a little more to the expected amount of work that should be necessary in that case.”
[¶ 22] We believe the record is adequate to support the Bureau‘s adoption of the $85-per-hour maximum hourly rate and the fee caps. The Legislature, by enacting the 20 percent fee cap and directing the Bureau to set a maximum hourly rate and other fee caps, has made its legislative intention crystal clear. The Legislature was seeking to control costs within the workers compensation system and reduce unwarranted litigation. The Bureau, exercising a policy judgment consistent with the legislative mandate, decided to pay prevailing claimants’ attorneys the same hourly rate it pays its retained attorneys. The Bureau arrived at the other fee caps by estimating, through its experience and expertise, the amount of work involved at the various levels of the proceedings. An administrative agency‘s experience and expertise can be given deference when it is performing its rulemaking function just as it can when it is performing its adjudicatory function. See, e.g., Dioguardi v. Superior Court, 184 Ariz. 414, 909 P.2d 481, 484 (Ct. App. 1995); Citizens for Free Enterprise, 649 P.2d at 1063; Viking Pump v. State Emp. Appeal Bd., 522 N.W.2d 310, 312 (Iowa.Ct. App. 1994); Tennessee Cable TV Ass‘n v. Public Serv. Com‘n, 844 S.W.2d 151, 168 (Tenn.Ct.App. 1992). Cf. Americana Healthcare Center v. Dep‘t of Human Services, 540 N.W.2d 151, 153 (N.D. 1995) (agency has reasonable range of informed discretion in the interpretation and application of its rules, and its expertise is entitled to deference when the subject matter is complex or technical).
[¶ 23] The Bureau considered Little and Dietz‘s arguments about the unfairness of compensating claimants’ attorneys at the same rate as the Bureau‘s attorneys when the Bureau‘s attorneys are paid whether they win or lose. But the Bureau answered this argument by pointing out it could exercise control over the hours billed by its attorneys and stating its belief the rate and caps would result in better screening of the merits of a case by claimants’ attorneys. This too, fully comports with the Legislature‘s intentions. See Miller v. IBM, 163 Vt. 396, 659 A.2d 1126, 1128 (1995) (attorney fee cap was “reasonably related to the purpose of avoiding ‘unnecessary expense in the enforcement or defense’ of claims“).
[¶ 24] The arguments Little and Dietz make on appeal are perhaps valid criticisms of the attorney fee payment scheme, but they are virtually the same arguments made to and rejected by the Bureau in the rulemaking proceeding. It is not the function of this Court to decide whether the $85 hourly rate and the fee caps are reasonable; rather, we decide only whether the rule itself is an arbitrary and capricious application of statutory authority. See
[¶ 25] The fact an agency exercises its discretion in a manner contrary to that advocated by the objectors does not mean the agency action was not based on the record. See City of Aurora. We do not determine whether the agency‘s regulation reflects the best or most preferable policy choice, but only whether there are reasonable facts and analysis which support the choice the agency
[¶ 26] As Little and Dietz argue, the fee restrictions may discourage some attorneys from representing workers compensation claimants. If that is the case, they have identified a problem properly the concern of the Legislature. See Crosby v. State, Workers’ Compensation Bd., 57 N.Y.2d 305, 456 N.Y.S.2d 680, 442 N.E.2d 1191, 1195 (1982). We offer no opinion on the wisdom of the legislative mandate to the Bureau, but conclude only the record of this rulemaking proceeding is adequate under the Act, and the Bureau‘s promulgation of the maximum hourly rate and the fee caps was not an arbitrary or capricious application of its statutory authority.
III
[¶ 27] The Bureau asserts the district court erred in holding promulgation of
[¶ 28] The Bureau is statutorily directed to “pay an injured employee‘s costs from the bureau general fund.”
[¶ 29] Our review of the 1991 legislative history does not reveal any intention on the part of the Legislature to remove the authority of the Bureau to adopt rules regarding costs. The most plausible explanation for deleting the language relied on by the district court is the language was found to be surplusage because the first sentence of
[¶ 30] An administrative regulation may not exceed statutory authority or supersede a statute, and a regulation which goes beyond what the Legislature has authorized is void. Moore v. North Dakota Workmen‘s Comp. Bureau, 374 N.W.2d 71, 74 (N.D. 1985). Contrary to the argument of Little and Dietz, the rule enacted by the Bureau does not give it any authority to deny reimbursement of any reasonable costs, but merely requires advance, rather than after-the-fact, approval of costs in excess of $100. The regulation merely governs the procedure for collecting costs and makes no substantive change in the statutory requirement of reimbursement for a claimant‘s reasonable costs. See, e.g., Wehmeier v. Public School Retirement System, 631 S.W.2d 893, 901 (Mo.Ct. App. 1982).
[¶ 31] We conclude the Bureau did not act beyond its statutory authority in adopting a $100 limit for reimbursement of a claimant‘s
IV
[¶ 32] After Little and Dietz appealed to the district court, the Bureau moved for leave to pursue discovery of Little and Dietz‘s recovery of fees from permanent partial impairment awards and from clients in cases where fees were not paid by the Bureau. Little and Dietz responded to the motion, arguing discovery is not allowed in an administrative appeal and, in any event, “the request to obtain information about permanent partial impairment contingency fees is irrelevant and misleading.” Little and Dietz accompanied their response with a request for attorney fees as a sanction under
[¶ 33] The district court ruled even if discovery is authorized under the Act, the information sought by the Bureau was not relevant to the case. The court concluded it could grant attorney fees under either
[¶ 34] Although the district court found it could award attorney fees under either the rule or the statute, both parties treat the district court‘s order as awarding attorney fees solely under
[¶ 35] Attorney fees and costs in administrative agency actions are provided for in
“1. In any civil judicial proceeding involving as adverse parties an administrative agency and a party not an administrative agency or an agent of an administrative agency, the court must award the party not an administrative agency reasonable attorneys’ fees and costs if the court finds in favor of that party and, in the case of a final agency order, determines that the administrative agency acted without substantial justification.
“2. This section applies to an administrative or civil judicial proceeding brought by a party not an administrative agency against an administrative agency for judicial review of a final agency order, or for judicial review pursuant to this chapter of the legality of agency rulemaking action or a rule adopted by an agency as a result of the rulemaking action being appealed.”
[¶ 36] The Bureau asserts the court erred in awarding attorney fees because the statute does not apply to its motion for leave to pursue discovery, which resulted in the court‘s order granting the request for attorney fees, but authorizes an award of attorney fees only if the party not an administrative agency prevails on the merits of the appeal.
[¶ 37] When interpreting a statute, to determine the Legislature‘s intent, we look first to the language of the statute and give it its plain, ordinary, and commonly understood meaning. Goodleft v. Gullickson, 556 N.W.2d 303, 306 (N.D. 1996). If a statute is clear and unambiguous, we do not disregard the letter of the statute under the pretext of pursuing its spirit. Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 840 (N.D. 1996). Statutes must be construed as a whole to give each provision meaning and effect. Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D. 1994).
[¶ 38] The language of
[¶ 39] Subsection 2 of the statute makes the attorney fee provision applicable to an “administrative or civil judicial proceeding” brought by a nonadministrative party for judicial review of a “final agency order,” “the legality of agency rulemaking action,” or “a
[¶ 40] The Legislature clearly evidenced its intention attorney fees and costs could be awarded to a nonadministrative party in some instances where the court simply “finds in favor of that party.” The Bureau‘s motion for leave to pursue discovery and the resulting request for attorney fees were clearly an intertwined part of this rulemaking appeal. The language of the statute does not limit payment of attorney fees and costs to instances where the nonadministrative party prevails on the underlying appeal, to the exclusion of other related motions and orders which are made and rendered in conjunction with the appeal.
[¶ 41] We apply the abuse-of-discretion standard of review to a challenge of an award of attorney fees under
V
[¶ 42] We reverse the judgment invalidating
[¶ 43] VANDE WALLE, C.J., MARING, J., and WILLIAM W. McLEES, District Judge, concur.
[¶ 44] WILLIAM W. McLEES, District Judge, sitting in place of NEUMANN, J., disqualified.
MESCHKE, Justice, concurring and dissenting.
[¶ 45] I concur with the majority opinion in part III (affirming the new rule requiring advance approval for reimbursement of a claimant‘s costs over $100), and in part IV (affirming attorney fees to Little and Dietz for resisting the Bureau‘s spurious motion for discovery). In part II, I concur that the maximum hourly rate is not arbitrary enough to invalidate the rule, but I disagree with much of the analysis in parts IIB and IIC. I dissent from the majority‘s conclusion that the “record of this rulemaking proceeding is adequate” for the tiered maximum attorney fees, and I dissent from the majority‘s implicit conclusion the tiered caps are reasonable.
I
[¶ 46] For a long time, North Dakota‘s Workers’ Compensation Act has commanded the Bureau to compensate a worker‘s attorney for legal services to prove a claim when it is disputed. See 1943 N.D. Laws, ch. 274, § 10: “All fees on claims for legal services rendered under this Act to any claimant shall be in accordance with schedules of fees adopted or to be adopted by the Commissioners of the Workmen‘s Compensation Bureau and subject to the approval of said Commission.” A like command remains in
[¶ 47] In 1989 and 1991, the Legislature began reducing reimbursements to an in-
[¶ 48] Historically, North Dakota thus has been one of a “substantial majority” of states that shift the legal expenses on a claim from the injured worker to the contesting carrier or employer when the worker prevailed. 8 Arthur & Lex K. Larson, Larson‘s Workers’ Compensation Law, § 83.12(b)(1), at 15-1306–1314 (1995). Reimbursing an injured worker for legal expenses is important because the benefits are already so “closely calculated” and minimal that “a serious question arises whether the social objectives of the [workers compensation] legislation may to some extent be thwarted” by associated legal costs for the worker. Id. § 83.11. “The benefit scales are so tailored as to cover only the minimum support of the claimant during disability.” Id.
[¶ 49] Since 1989, the North Dakota Legislature has continued to pare reimbursement of a worker‘s legal expenses. See 1989 N.D. Laws, ch. 767, §§ 1-3; 1993 N.D. Laws, ch. 619, §§ 1-2; 1995 N.D. Laws, ch. 612, §§ 1-3, and ch. 614, §§ 1-7. The changes first shackled a worker‘s ability to obtain legal services: “This section does not prevent an injured employee or an employer from hiring or paying an attorney; however, the employee‘s attorney may not seek or obtain costs or attorney‘s fees from both the bureau and the employee relative to the same services.”
[¶ 50] Parallel 1995 changes to
The bureau shall pay an injured employee‘s attorney‘s fee only when the employee prevails. The bureau shall adopt rules to establish a maximum fee for an injured employee‘s attorney. An attorney‘s fee may not exceed twenty percent of the amount awarded.
Amendments to
The bureau shall, pursuant to section 65-02-08, establish a maximum fee to be paid in an appeal, provided that the maximum fee may be exceeded upon application of the claimant and approval of the court, upon a finding that the claim had clear and substantial merit, and that the legal or factual issues involved in the appeal were unusually complex.
[¶ 51] Following the comprehensive directions in
[¶ 52] An agency‘s rulemaking must be judicially reviewed “based only on the record filed with the court.”
In requiring an official agency rule-making record, [the statute] should facilitate a more structured and rational agency and public consideration of proposed rules, and the process of judicial review of the validity of rules.
Model State Administrative Procedure Act (1981) § 3-112, 15 U.L.A. 49, 50 (1990). Another Comment to the parallel Model Act section requiring a rulemaking record emphasizes, “to the extent another provision of law expressly requires a particular class of rules to be made by the agency and, therefore, judicially reviewed, wholly on the basis of the official agency rule-making record, that other provision of law will control.” Id. at 51. Yet the majority opinion views the North Dakota directive for judicial review of a new rule “only on the record” as “vague,” assumes that “no provisions incorporating adjudicatory agency functions into agency rulemaking actions” exist, and declares “we will not apply concepts of evidentiary proof suitable in an adjudicatory setting to an agency‘s rulemaking action.”
[¶ 53] In my opinion, the majority‘s declaration is wrong. The majority shut their eyes to “only” in the directive for judicial review “on the record” in
[¶ 54] “Giving the word ‘only’ its ordinary meaning, and applying it in its restrictive sense, as qualifying the word[s] to which it naturally belongs, the conclusion cannot be escaped that it restricts the meaning to be given to [those words].” Dowagiac Mfg. Co. v. Mahon, 13 N.D. 516, 101 N.W. 903, 903 (1904). “[T]he Legislature must be presumed to have approved and passed the bill with the intention that the word ‘only’ should be given its usual ordinary meaning. According to Webster ‘only’ means exclusively, solely, merely, for no other purpose, at no other time, in no other wise.” Ex parte Salhus, 63 N.D. 238, 247 N.W. 401, 402 (1933). Although the majority assigns it no meaning, “only” means exclusively.
[¶ 55] The majority opinion declares “[i]t is not the function of this Court to decide whether the ... hourly rate and the fee caps are reasonable.” But the authorizing section,
[¶ 56] The amount of attorney fees to be reimbursed for an individual worker‘s claim is directly affected by the maximum fees set by these rules. The United States Supreme Court has commented on the nature of judicial review in this kind of rate-making context:
In prior opinions we have intimated that even in a rulemaking proceeding when an agency is making a “quasi-judicial” determination by which a very small number of persons are “‘exceptionally affected, in each case upon individual grounds,‘” in some circumstances additional procedures may be required in order to afford the aggrieved individuals due process.
Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519, 542, 98 S.Ct. 1197, 1211, 55 L.Ed.2d 460 (1978). As Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), explained, “‘post hoc’ rationalizations ... have traditionally been found to be an inadequate basis for review.” When a
III
[¶ 57] I join with the majority in concluding that
IV
[¶ 58] I concur that the $85 hourly rate is minimally supported by this record as a reasonable amount. “The rate and hours expended by opposing counsel are often probative of the reasonableness of attorney fees for prevailing counsel.” Duchscherer, 534 N.W.2d at 19. Determining attorney fees reasonably depends, however, on more than just the hourly rate.
[¶ 59] Thus, there is some force in the appellants’ argument that the $85 hourly contingent rate to a prevailing worker‘s attorney “cannot be considered reasonable compensa-
tion” when the Bureau pays that same non-contingent rate to the contesting attorney, win or lose. Obviously, the total effect is to discourage claims.
[¶ 60] A worker has the greater legal burden to prove the claim, but must do so without equivalent financial resources. This kind of increasingly unbalanced bureaucratic administration will, I fear, eventually lead to destruction of the social and legal foundations of the workers compensation compact. If so, I would anticipate policy and politics will then combine to bring about a return to the courts of enforcement of injured workers’ claims through tort law. But that potential is well-beyond the range of judicial review for this case.
[¶ 61] In this record, there is some evidence that $85 hourly is a reasonable rate. Therefore, I concur that the hourly rate in the rule is within the agency‘s authority.
V
[¶ 62] I agree with the district court that there is no evidence in this record to justify or support the reasonableness of the tiers of maximum fees set by this rule. Setting maximum fees in tiers commensurate with the expected amount of work necessary through each stage of a claim is, of course, reasonable. But this record has no facts, figures, or other information about the amount or range of legal work needed for each stage that might support the tiers set in the rule. I therefore dissent.
[¶ 63] The majority excuses the lack of record information to gauge the reasonableness of the “fee cap” amounts by assuming the Bureau “arrived” at the tiers “by estimating, through its experience and expertise, the amount of work involved at the various levels of the proceedings.” If the Bureau did that, we do not know how they did it because there is no information about it in this record. Instead, the Bureau seems to be saying, “trust us, we know what is best,” without tendering a single clue about “the amount of work involved at the various levels of the proceedings” on claims ordinarily.
[¶ 64] The majority reasons “[i]t is not the function of this Court to decide whether
[¶ 65] Since setting attorney fees is essentially an adjudicative function, fees cannot be set for a case without evidence of the hours worked. Id. Likewise, tiered caps on attorney fees cannot be fore-ordained without evidence about the usual amount of work for each stage. Undoubtedly, having paid reasonable fees in past cases based on the amount of work in each one, the Bureau has relevant information available to it. How it used that information for this rulemaking was not disclosed in this record. In my opinion, without that information, there is no way to judicially review the tiered fee caps “based only on the record.”
[¶ 66] Of course, from its available information, the Bureau is competent to do fact-finding about the range of legal services needed to prove a worker‘s claim for each stage. The Bureau offered us no explanation why it failed to make a record of that information in making this rule. Within the range of its information, if it was part of the record, I would agree the Bureau would have the considerable discretion the majority posits. But the Bureau should not be permitted to exercise its discretion secretly, without a record, and expect judicial review blindly to rubber-stamp its actions.
VI
[¶ 67] I would affirm the district court‘s holding that the portions of the rule on the maximum fee caps is invalid. Therefore, to that extent, I dissent. I would remand for the Bureau to develop an adequate record to show those tiered classifications reasonably correspond to the “expected amount of work that should be necessary.”
[¶ 68] Herbert L. Meschke.
MESCHKE, Justice