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finding rate of $195.00 reasonable in disability discrimination suit for an attorney who had been practicing employment law for thirteen years
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NO. 00-2379 SECTION "N" (2)
September 10, 2001
ORDER AND REASONS
Plaintiff, Janine Raspanti ("Raspanti"), filed this lawsuit against her former employer, the Secretary of the United States Army. Although Raspanti failed to allege any adequate jurisdictional basis in her complaint, see Record Doc. No. 1,¶ 2, it is apparent from the pleadings and motions in this case that her claims arose under the Rehabilitation Act, 29 U.S.C. § 791 et seq., for disability discrimination and retaliation against her for her prior complaints of discrimination. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of all parties. Record Doc. No. 14.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pending before me are three motions for attorney's fees and costs filed by the four attorneys who have represented plaintiff during her administrative proceedings before the Army and before this court. Susan F. Clade and Joseph W. Rausch, who each represented Raspanti at different times during the agency proceedings, were permitted to intervene in this action to assert their claims for attorney's fees and costs. Record Doc. Nos. 25, 31.
Plaintiff was first represented at the agency level by her brother, attorney Roy Raspanti, from April 14, 1992 until May 12, 1993. Clade then represented plaintiff before the agency from April 22, 1997 until June 2, 1998. Raspanti next hired Rausch, who represented her in the agency proceedings from June 4, 1998 through July 16, 1999. Plaintiff then re-hired Roy Raspanti, who has represented her from July 16, 1999 to the present before the agency and this court. Plaintiff associated Jeffrey A. Schwartz as co-counsel with her brother when she filed this action in August 2000. The four attorneys seek a combined total of $88,712.88, consisting of $86,795 in fees and $1,917.88 in costs. Plaintiff also seeks prejudgment interest on the fees and costs incurred by Roy Raspanti.
Raspanti was employed by the Army Corps of Engineers. Her complaint in this court states that the Army terminated her employment on June 5, 1992. She filed a formal complaint with the Army's Equal Employment Opportunity Commission ("EEOC") on October 6, 1992, alleging discrimination based on her disability and reprisal for her past EEOC complaints. On March 8, 1994, the Army issued its final decision finding no discrimination or retaliation. Record Doc. No. 1, Complaint.
Raspanti appealed to the EEOC Office of Federal Operations, which reversed the Army's decision on March 17, 1997 and found that the Army had both discriminated and retaliated against plaintiff. The Army's request for reconsideration of this decision was denied on July 17, 1998. Id.
On September 14, 1999, plaintiff filed with the Army a petition for enforcement of the final EEOC decision. Id. She subsequently received an award of back pay in excess of $150,000 and an offer to return to work. Record Doc. No. 31, Rausch's Memorandum in Support of Motion for Attorney's Fees, at p. 2. On May 16, 2000, the Army rendered a final decision on Raspanti's compensatory damages claim, awarding her $38,544 in compensatory damages plus her reasonable attorney's fees and costs, the amount to be determined by motion before the Army. Plaintiff filed this action on August 10, 2000, seeking a higher compensatory damages award and her attorney's fees and costs, none of which had yet been paid by the Army. Record Doc. No. 1, Complaint.
On June 20, 2001, the parties settled all aspects of this case, except the amount of attorney's fees and costs recoverable by plaintiff. Record Doc. No. 33, 34 and 38. A partial dismissal order was entered, and these motions were filed.
Defendant, the Secretary of the Army, filed a timely opposition memorandum to the motions for attorney's fees and costs pending before me. Record Doc. No. 42. Consistent with the parties' settlement agreement, defendant does not dispute that Raspanti is a prevailing party and is therefore entitled to recover her reasonable attorney's fees and costs incurred during the EEOC proceedings and this lawsuit, but he argues that the fees sought are excessive.
II. ANALYSIS
A. Awards of Attorney's Fees and Costs Under the Governing Statutes and Regulations
The standards established by Title VII govern the motions for attorney's fees and. costs in this action because the Rehabilitation Act incorporates the remedies and procedures of Title VII. 29 U.S.C. § 794a; Spence v. Straw, 54 F.3d 196, 200-01 (3d Cir. 1995); Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981). The relevant portion of Title VII provides that: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs, and the . . . United States shall be liable for costs the same as a private person." 42 U.S.C. § 2000e-5(k) (emphasis added).
The regulations governing remedies and relief at the agency level provide that awards of attorney's fees and costs may be made to a prevailing complainant under the Rehabilitation Act for the fees and costs incurred at that level. "In a decision or final action, the agency, administrative judge, or Commission may award the applicant or employeereasonable attorney' s fees (including expert witness fees) and other costs incurred in processing the complaint." 29 C.F.R. § 1614.501(e)(l). "A finding of discrimination raises a presumption of entitlement to attorney's fees," which, along with any award of costs, "shall be paid by the agency." Id. § 1614.501(e)(1)(i), (ii).
Attorney's fees shall be paid for services performed by an attorney after the filing of a written complaint, provided that the attorney provides reasonable notice of representation to the agency, administrative judge or Commission, except that fees are allowable for a reasonable period of time prior to the notification of representation for any services performed in reaching a determination to represent the complainant. Agencies are not required to pay attorney's fees for services performed during the pre-complaint process, except [in circumstances not relevant here].Id. § 1614.501(e)(1)(iv) (emphasis added). In the instant action, the Army does not contest its administrative finding that Raspanti is entitled to reasonable attorney's fees and costs for the work that her attorneys performed at the agency level pursuant to the regulation.
The regulations also provide a method for calculating reasonable attorney's fees.
The starting point shall be the number of hours reasonably expended multiplied by a reasonable hourly rate. There is a strong presumption that this amount represents the reasonable fee. In limited circumstances, this amount may be reduced or increased in consideration of the degree of success, quality of representation, and long delay caused by the agency.Id. § 1614.501(e)(2)(ii)(B) (emphasis added).
In addition, "[t]he costs that may be awarded [as a result of the EEOC proceeding] are those authorized by 28 U.S.C. [§] 1920 to include: Fees of the reporter for all or any of the stenographic transcript necessarily obtained for use in the case; fees and disbursements for printing and witnesses; and fees for exemplification and copies necessarily obtained for use in the case." Id. § 1614.501(e)(2)(ii)(C).
B. The Lodestar
The calculation of reasonable attorney's fees described above mirrors the "lodestar" method used in Title VII/Rehabiitation Act litigation. Determination of reasonable attorney's fees for work performed during the pendency of this case before this court is a two-step process that begins with determination of the "lodestar" amount.
A lodestar is calculated by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work. After making this calculation, the district court may decrease or enhance the lodestar based on the relative weights of the twelve factors set forth in Johnson v. Georgia Highway Express. Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar award already took that factor into account. Such reconsideration is impermissible double-counting.Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992); Shipes v. Trinity Indus., 987 F.2d 311, 319-20 (5th Cir. 1993)).
The Johnson factors are:
(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) the award in similar cases.Johnson, 488 F.2d at 717-19.
"[O]f the Johnson factors, the court should give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience, reputation and ability of counsel."Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (citation omitted). Three of the Johnson factors, complexity of the issues, results obtained and preclusion of other employment, are fully reflected and subsumed in the lodestar amount. Heidtman, 171 F.3d at 1043 (quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Shipes, 987 F.2d at 319-22 n. 9). More recently than the Johnson case, the "Supreme Court has barred any use of the sixth [contingent fee] factor." Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (citingCity of Burlington, 505 U.S. at 567; Shipes, 987 d at 323).
"The lodestar . . . is presumptively reasonable and should be modified only in exceptional cases." Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (citing City of Burlington, 505 U.S. at 562); accord Heidtman, 171 F.3d at 1043. Although the party seeking attorney's fees bears the initial burden of submitting adequate documentation of the hours reasonably expended and of the attorney's qualifications and skill, the party seeking reduction of the lodestar bears the burden of showing that a reduction is warranted. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997); Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995) (hereinafter "LPL").
C. The Hourly Rates Charged by Plaintiffs' Counsel
First, I must determine whether the hourly rates charged by plaintiff's various counsel were reasonable.
Intervenor Clade seeks $150 per hour for a total fee award of $25,537.50. Clade Exh. B. She has submitted to the court her own affidavit, attesting that $150 per hour is her usual and customary rate and that her work for Raspanti, combined with her other work load, prevented her from handling ten other matters that were referred to her. Clade Exh. D. Clade has also submitted the affidavit of attorney Michael Tusa, who states that he has practiced employment litigation in New Orleans since 1983. He avers that $150 per hour is reasonable and customary for the type of work Clade performed for Raspanti. He also states that Clade has been practicing employment discrimination law since 1983, has a very good reputation in the New Orleans legal community and has received the highest rating in the Martindale Hubbell Law Directory. Clade Exh. C.
Intervenor Rausch also requests $150 per hour for a total fee award of $12,291.00. Rausch Exh. B-1. He submitted his own affidavit, attesting that he has been a member of the Louisiana bar since 1975; his invoices reflect the actual work performed; the requested rate of $150 per hour is his usual and customary rate for this type of legal work; the time demands of Raspanti' s case frequently conflicted with other employment; he had briefly represented Raspanti in another matter some years before; and the facts of the case involved complex issues of payroll and accounting. Rausch Exh. B-2. Rausch also submitted the affidavit of William W. Hall, who avers that he has practiced law, including employment discrimination law, for 26 years in the New Orleans area. Hall asserts that $150 per hour is the prevailing rate for attorneys like Rausch, who have more than 20 years of experience in civil rights and employment discrimination litigation within the New Orleans legal community, and that Rausch has received the highest rating in the Martindale Hubbell Law Directory. Rausch Exh. B-3.
It is not clear what hourly rates plaintiff seeks for the work of Roy Raspanti. In the invoices attached to her motion as Exhibit 7, plaintiff requests $175 per hour for all of his work, for a total fee request of $43,846.25. In her memorandum in support of the motion, Raspanti confusingly offers the court the option of calculating prejudgment interest based on hourly rates of $125, $150 or $175 for Roy Raspanti's work performed in 1992 and 1993. Plaintiff's Memorandum in Support of Motion, Record Doc. No. 40, at p. 9. In her reply memorandum, plaintiff states that she seeks $150 to $175 per hour for her brother's legal work. Plaintiff's Reply Memorandum, Record Doc. No. 44, at p. 1. This request is based on the statement in her memorandum (but not in any affidavit) that Roy Raspanti has been practicing law since 1975 and on affidavits by attorney Bruce Danner attached to the reply memorandum, in which Danner avers that $135 to $150 was the prevailing rate for attorneys in New Orleans in 1992 and 1993 and that $165 to $250 is the current rate. Plaintiff's Exhs. 1 and 2 to Reply Memorandum, Record Doc. No. 44.
Finally, plaintiff seeks $195 per hour for the work of Schwartz for a total fee award of $5,216.25. She states in her reply memorandum (but not in any affidavit) that Schwartz specializes in employment law and has been practicing since 1988. Danner's second affidavit concerning prevailing rates is the only support offered for Schwartz's requested rate. Plaintiff's Exh. 2 to Reply Memorandum, Record Doc. No. 44.
n An attorney's requested hourly rate is prima facie reasonable when he requests that the lodestar be computed at his or her customary billing rate, the rate is within the range of prevailing market rates and the rate is not contested. LPL, 50 F.3d at 328. I find that the requested hourly rates of $150 for Clade and Rausch and $195 for Schwartz are reasonable, based on the attorneys' qualifications and experience and the prevailing market rates in this legal community at the time they performed their work.
However, I find that the $175 hourly rate sought for Roy Raspanti's work is not reasonable. The Danner affidavits are not specific enough to support that rate, and indeed his first affidavit concerning the 1992-1993 time period specifically negates such a high rate for that period. On the contrary, my own experience in this court in reviewing and evaluating requests for awards of attorney's fees convinces me that the requested rate is not reasonable. I am personally familiar with the experience, reputation and skill of the various attorneys who represented plaintiff in this case and I am personally familiar with the range of attorney's customary billing rates in this legal community. Despite Roy Raspanti's qualifications, I find that an hourly rate of $175 for his work is excessive and not customary in this community. Rather, I find that an hourly rate of $150 is within the range of prevailing market rates for lawyers with comparable experience and expertise in litigation of this type, and that this rate is reasonable in this case for all of his work.
My research indicates that the following attorney's fee awards have recently been made in both similar and more complicated cases in this court.
1. In a civil rights case earlier this year, Judge Vance awarded $150 per hour to an attorney who had been admitted to the bar in 1977. Oyefodun v. City of New Orleans, No. 98-3283, 2001 WL 775574, at 9 (E.D. La. July 9, 2001).
2. Judge Livaudais awarded $185 per hour this year to a civil rights attorney with 25 years of experience. Lalla v. City of New Orleans, No. 96-2640, 2001 WL 333112, at 9 (E.D. La. Apr. 4, 2001).
3. In a qui tam case in 1999, Judge Duval awarded hourly rates of $250, $175 and $150 for partner-level attorneys. He awarded rates at the high end of each attorney's usual range because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting. United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F. Supp.2d 546, 569 (E.D. La. 1999), vacated on other grounds, 244 F.3d 486 (5th Cir. 2001).
4. In Yousuf v. UHS of De La Ronde, Inc., 110 F. Supp.2d 482, 490-91 (E.D. La. 1999), Judge Livaudais awarded $195 per hour to an attorney who had practiced civil rights litigation for 24 years.
5. In 1998, in an action challenging the constitutionality of a public school board's resolution, Judge Livaudais held that while "$175 is arguably within the realm of reasonable awards, an hourly rate of $150 is appropriate." Freiler v. Tangipahoa Parish Bd. of Educ., No. 94-3577, 1998 WL 2852, at 3 (E.D. La. Jan. 5, 1998), aff'd, 185 F.3d 337, 349 (5th Cir. 1999).
6. Judge Berrigan held in 1997 that $150 per hour was reasonable in an employment discrimination action, after finding that counsel had practiced employment discrimination law since 1988 and had become an authority in the field. Smith v. Berry Co., No. 96-1899, 1997WL 736697, at 4 (E.D. La. Nov. 21, 1997).
7. In a Title VII action in 1996, Judge Berrigan awarded $175 per hour to counsel who had been practicing employment discrimination law since 1988. Douglas v. DynMcDermott Petroleum Operations Co., No. 95-1967, Record Doc. No. 203 (unreported decision; cited in Smith, 1997 WL 736697, at 4).
8. In Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D. La. 1997), Chief Judge Sear held that $150 per hour was reasonable in a Section 1983 action, based upon plaintiffs' counsel's 22 years of experience as a civil rights attorney and the Chief Judge's own knowledge of attorneys' fees in this district.
9. In Blanchard v. Forrest, No. 93-3780, 1996 WL 125955, at 2-3 (E.D. La. March 19, 1996), an "exceedingly complex" class action brought under Section 1983 against the State of Louisiana, which required "specialized knowledge of the controlling [Medicaid] regulations" and resulted in a consent decree, Judge Porteous found that hourly rates of $175 for a senior attorney with 25 years of varied litigation experience, $125 for a public interest litigator with slightly less experience, $80 for a second-year associate and $35 for student law clerks were customary and reasonable in this district.
10. Finally, in an age discrimination case tried in 1995, Magistrate Judge Africk awarded hourly rates of $175 for an attorney who had practiced law for 23 years, $150 for an attorney who had practiced for 15 years and $125 for an attorney who had practiced for 9 years with 6 years of specialization in disability rights. Grantham v. Moffett, No. 93-4007, 1996 WL 3750, at 4 (E.D. La. Jan. 3, 1996) (Africk, M.J.), aff'd, 101 F.3d 699 (5th Cir. 1996).
These cases support reasonable hourly rates of $150 for Roy Raspanti, Clade and Rausch, and of $195 for Schwartz.
D. The Hours Charged by Plaintiffs' Counsel
Next, I must determine the reasonable number of hours that plaintiffs' counsel expended on the litigation.
As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded from any award of attorney's fees. Watkins, 7 F.3d at 457. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours" when seeking fee awards. Walker, 99 F.3d at 769; accord Hensley, 461 U.S. at 433-34. The fee seeker's attorneys are "charged with the burden of showing the reasonableness of the hours they bill and, accordingly, are charged with proving that they exercised billing judgment." Walker, 99 F.3d at 770. When billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended.Hensley, 461 U.S. at 434.
Defendant asks the court to reduce the requested hours and to award a reasonable amount. In light of these objections and in accordance with the standards set forth in Hensley and Walker, I have undertaken a review of the time records in conjunction with the written submissions at issue in an effort to exclude any excessive, redundant or otherwise unnecessary hours.
Defendant challenges specifically the following entries.
1. Roy Raspanti's Work Before October 1992
Defendant argues that plaintiff should not recover attorney's fees for Roy Raspanti' s work performed from April to October 1992, before the filing of plaintiff's formal administrative complaint. As noted above, the regulations provide that attorney's fees shall be paid for services performed by an attorney after the filing of a formal EEOC complaint, except that fees are allowable for a reasonable period of time "for any services performed in reaching a determination to represent the complainant." 29 C.F.R. § 1614.501(e)(1)(iv). My review of Roy Raspanti's time entries for April 14 through June 11, 1992 (all other entries are dated after the complaint was filed) indicate that he was reviewing documents through May 21, 1992, but was preparing for a conference with the Army by May 26, 1992. He clearly had reached a determination to represent plaintiff no later than May 26, 1992. Because the regulatory exception no longer applied after that determination, I will deduct his time entries for May 26 through June 11, 1992, for a total deduction of 8.55 hours.
2. Familiarization Time of New Attorneys
Defendant objects to paying for the time spent by each new attorney that plaintiff hired to familiarize himself or herself with the history and posture of the case. This objection is well founded. While it was plaintiff's option to hire and fire a series of attorneys to handle this matter, defendant is not required to pay for this imprudent duplication of effort. Accordingly, I will deduct the following hours from each attorney's time entries, which reflect either attorney familiarization time or overlapping time spent by plaintiff's existing and new attorneys.
Clade Entries for 4/22/97, 4/23/97, 4/27/97, 4/28/97, 3.0 hours on 5/7/97, 1.0 hour on 6/2/97, .25 hour on 6/26/97, 7/8/97, 7/14/97, .50 hour on 7/22/97, 7/24/97, 7/25/97, 6/1/98 and 6/2/98; total 12.0 hours
Rausch Entries for 6/1/98, 6/2/98, 6/3/98, 1.0 hours on 6/4/98, 1.90 hours on 6/5/98, 6/11/98 and .30 hour on 6/16/98; total 14.30 hours
R. Raspanti Entries for 7/16/99, 7/21/99, 7/23/99, 7/24/99, 7/25/99, 1.75 hours on 7/26/99, 7/28/99, 7/29/99, 4.0 hours on 7/30/99, and .25 hour on 8/16/99; total 26.60 hours
Schwartz Entries for 8/11/00, 8/14/00 and 9/26/00; total 7.50 hours
3. Unsuccessful Matters
Defendant objects to reimbursing plaintiff for attorney's fees incurred concerning "matters that were prompted by Plaintiff which were unsupported by the facts or the law." Defendant's Response to Counsel's Request for Attorneys' Fees and Costs, Record Doc. No. 42, at p. 2.
Specifically, the Secretary cites Roy Raspanti's time entries on June 5 through June 9, 2001 in connection with plaintiffs motion to reset the hearing on plaintiff's motion for partial summary judgment immediately and her threat to file a Rule 11 motion against the assistant United States Attorney assigned to the case, which defendant describes as "baseless." The court denied plaintiff's motion for expedited hearing as unnecessary. Record Doc. No. 28. I find that these motions were unnecessary. Thus, I will deduct 6.75 hours from Roy Raspanti' s time entries on June 5, 2001 through June 9, 2001.
Defendant also cites Roy Raspanti's time entries on June 28 through July 9, 2001 and Schwartz's time entries from June 27 through July 10, 2001 insofar as they relate to language in the settlement agreement and the court's orders regarding the appealability of any award of attorney's fees and costs. The Secretary contends that plaintiff originally insisted" that any attorney's fees and costs award be deemed final and non-appealable, but later changed her mind. See Record Doc. Nos. 33, 38 (minute entries by Shushan, M.J., regarding appealability of any award). In her reply memorandum, plaintiff denies that she ever suggested that the award be non-appealable and asserts that the change in language in the two orders reflected an original misunderstanding by Magistrate Judge Shushan, which Magistrate Judge Shushan later corrected.
The court cannot decide on this record which version of the events leading up to Magistrate Judge Shushan's orders is accurate. However, it is clear from their time sheets that plaintiff's counsel engaged in conferences regarding the appeal rights issue and that the issue was ultimately resolved in favor of including no such language. Thus, I find that the following time entries were unnecessary and should be deducted: .50 hour on 6/28/01, 7/2/01, 7/5/01, 7/6/01, and .50 hour on 7/9/01 for a total of 1.75 hours from Roy Raspanti's billed hours; and .75 hour on 7/9/01 from Schwartz's hours.
Although defendant does not challenge any additional time entries, the court has conducted its own review of the time sheets provided by each attorney and finds that the following additional hours should not be allowed.
Plaintiff's motion to test the sufficiency of defendant's answers to plaintiff's requests for admissions was unfounded and unnecessary. See Record Doc. No. 22 (denying motion and finding that all of defendant's responses complied with Fed.R.Civ.P. 36). Accordingly, I will deduct from Roy Raspanti's time 3.00 hours on 3/29/01, .75 hours on 3/30/01 and .25 hour on 4/26/10, for a total of 4.00 hours; and will deduct .50 hour from Schwartz's time on 4/5/01 and .25 hour on 4/25/01 for a total of .75 hour for work in connection with that motion.
4. Travel Time
Courts in this circuit typically compensate travel time at 50% of the attorney's rate in the absence of documentation that any legal work was accomplished during travel time. Watkins, 7 F.3d at 459; Hopwood v. State, 999 F. Supp. 872, 914 (W.D. Tex. 1998), aff'd in relevant part rev'd in part on other grounds, 236 F.3d 256, 281 n. 107 (5th Cir. 2000), cert. denied, 121 S.Ct. 2550 (2001); Jackson v. Capital Bank Trust Co., No. 90-4734, 1994 WL 118322, at 26 (E.D. La. Mar. 30, 1994) (Heebe, J.); Smith v. Walthall Co., 157 F.R.D. 388, 393 (S.D. Miss. 1994) (Wingate, J.). Clade has provided no such documentation. Accordingly, I will deduct from Clade's time entries for travel 1.0 hour on 10/30/97, 1.0 hour on 11/18/97, 1.0 hour on 11/26/97, 1.0 hour on 12/3/97, 1.0 hour on 12/4/97 and 1.0 hour on 2/20/98 for a total of 6 hours.
5. Clerical and Administrative Tasks
Defendant should not be required to pay for time spent on administrative matters. Barrilleaux v. Thayer Lodging Group. Inc., No. 97-3252, 1999 WL 397958, at 2 (E.D. La. June 11, 1999) (Livaudais, J.). Accordingly, the court will deduct from Schwartz's statement .50 hour on 9/25/00 for conferring with Roy Raspanti about fee-sharing and representation issues.
6. Unrelated Matters
Clade billed some time on 9/30/97 for reviewing materials sent to her by plaintiff concerning an "ethics claim against Roy Raspanti, " which was unrelated to Clade's representation of plaintiff in her claim against the Army. I will deduct 1.0 hour from Clade's time entry on 9/30/97 for this unrelated review.
7. Excessive, Redundant, Duplicative and Unnecessary Time
My review of Clade's time sheets indicates that plaintiff communicated excessively with her attorney with, at times, virtually daily telephone calls, letters, facsimiles and meetings. Clade states in her affidavit that this matter required "frequent contact" between her and her client, "especially because she did not represent Ms. Raspanti through the EEOC phase of the matter and had to familiarize herself with the complicated and lengthy fact situation." Clade Exh. D, ¶ 12. Clade states that she did not charge for every piece of correspondence she exchanged with plaintiff and did not charge for many of plaintiff's phone calls. Id. ¶ 13. While Clade appears to have exercised billing judgment in this regard, the Army cannot be charged for fees caused by plaintiff's excessive decisions to change attorneys. In addition, I find that plaintiff's contacts with her counsel were compulsively excessive in relation to the needs of the case. Accordingly, I will deduct 10% from Clade' s requested hours, after the specific hourly deductions made above, to account for these unnecessary contacts. Hensley, 461 U.S. at 433-35; Watkins, 7 F.3d at 457.
The same type of excessive communications between client and attorney appear on Rausch' s and Roy Raspanti' s statements. Accordingly, I will also deduct 10% from Rausch's requested hours and from Roy Raspanti's hours, after the specific hourly deductions made above, to account for these unnecessary contacts.
Raspanti decided that she needed two experienced attorneys to represent her in this lawsuit. While she is certainly free to make that decision, defendant is not required to pay for duplicative work among her attorneys. Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996);Jackson, 1994 WL 118322, at 13. Therefore, I will deduct 10% from Schwartz's requested hours, after the specific hourly deductions made above, and an additional 5 % from Roy Raspanti' s requested hours to account for this duplication of efforts.
8. Vagueness
The fee statements of each attorney are generally well documented, but those of Clade, Rausch and Roy Raspanti contain many vague entries. For example, entries on Clade's time sheets such as "phone call with client," "letter to R. Florent," "reviewed fax from client," "reviewed documents for affidavit," "reviewed hearing transcript and other materials," and "reviewed Corps materials," are vague. Rausch's statements similarly fail to detail the subject matter of many of his entries, such as "Telephone/Client, " "Correspondence/Other Parties/Attorneys," "Telephone/EEOC" and "Correspondence/File Memo." Roy Raspanti's statements suffer from the same defect. Examples of his vague entries include "review of file," "conversation with client," "call to EEOC attorney, " "phone conference with Randy Florent," "client conference," and "phone call to Bartlett." See Walker, 99 F.3d at 773 (rejecting fee request that contained "terse listings" such as "'library research,' 'analyzing documents,' 'reading background documents,' 'phone interviews,' with no further explanation. . . . [N]o responsible client would accept these records as capable of supporting a bill."); LPL, 50 F.3d at 326 n. 11 (vague entries such as "revise memorandum," "review pleadings," "review documents" and "correspondence" inadequate to support fee request); Von Clark, 916 F.2d at 259 n. 6 (criticizing as "scanty and lacking in explanatory detail" entries such as "'telephone call,' or 'trial preparation,' or 'travel to Beaumont to attend deposition' without any identification whatsoever of the subject matter").
I find that the vagueness and lack of detail of many of their entries warrant an additional 10 % reduction in Clade' s, Rausch' s and Roy Raspanti' s requested hours.
E. Calculation of the Lodestar
In summary, I find that the requested hours should be reduced as explained above. These reductions yield the following reasonable hours for each attorney.
Attorney Requested Less Specific Less Percentage Reasonable Name Hours Deductions Reductions Hours Clade 166.25 166.25 — 19.00 147.25 147.25 x 20% = 29.45 147.25 — 29.45 117.80 117.80 Rausch 81.30 81.30 — 14.30 67.00 67.00 x20% = 13.40 67.00 -13.40 53.60 53.60 Raspanti 250.55 250.55 — 47.65 202.90 202.90x25% = 50.725 202.900 -50.725 152.175 152.175 Schwartz 26.75 26.75 — 9.50 17.25 17.25 x 10% = 1.725 17.25 — 1.725 15.525 15.525 After making these reductions in hours, I find that the lodestar amount of reasonable hours multiplied by the reasonable rates set forth above is reasonable in this case and that no further reduction or enhancement is required. In making this recommendation, I have considered and applied the factors articulated in Johnson, as required by the Fifth Circuit.Riley, 99 F.3d at 760; LPL, 50 F.3d at 331. Those factors have been evaluated as follows.(1) The time and labor required have already been considered in reaching the lodestar. (2) The complexity of the questions involved in this case is subsumed in the lodestar amount. Heidtman, 171 F.3d at 1043. (3) The skill required to perform the legal service properly is connected to the second factor and has already been taken into account in the attorney's hourly rate. (4) Although Clade and Rausch attest that they were precluded from taking other employment, the Fifth Circuit has held that this factor is already fully reflected and subsumed in the lodestar amount. Id. (5) After the reductions discussed above, the fees charged were customary; this factor has already been taken into account. (6) Contingent fee contracts cannot as a matter of law be used to affect the lodestar. Walker, 99 F.3d at 772. (7) There were no significant time limitations imposed by the circumstances. (8) The amount involved was not extraordinary and the result obtained was successful, which are reflected in the lodestar amount. Heidtman, 171 F.3d at 1043. (9) The experience, reputation and ability of counsel have already been considered in determining the lodestar. (10) The case was not undesirable. (11) One of plaintiff's four counsel is her brother. Plaintiffs' relationship with other counsel is not significant. (12) Awards in similar cases have already been discussed.
Based on the foregoing factors, I find that no adjustment need be made to the lodestar, as reduced as described above. The reasonable hours multiplied by each attorney's reasonable hourly rate yield the following lodestar amounts.
Attorney Reasonable Reasonable Lodestar Name Hours Hourly Rate Amount Clade 117.80 $150 $17,670.00 Rausch 53.60 $150 8, 040.00 R. Raspanti 152.175 $150 22, 826.25 Schwartz 15.525 $195 3,027.38 Total 339.10 $51,563.63 F. Prejudgment InterestPlaintiff seeks prejudgment interest on the attorney's fees incurred by Roy Raspanti on her behalf. The Secretary opposes this request.
Contrary to defendant's argument, sovereign immunity does not prevent the recovery of prejudgment interest on attorney's fees in this case. Sovereign immunity precludes a party from recovering prejudgment interest against the United States unless Congress expressly waives the immunity.Arneson v. Callahan, 128 F.3d 1243, 1245 (8th Cir. 1997); Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996). Although the Rehabilitation Act does not provide for prejudgment interest, Arneson, 128 F.3d at 1245, Title VII (the remedies of which are incorporated into the Rehabilitation Act) expressly waives sovereign immunity from interest. 42 U.S.C. § 2000e-16(d) ("the same interest to compensate for delay in payment shall be available as in cases involving nonpublic parties");Jackson, 99 F.3d at 716. At least one appellate court has specifically held that this waiver applies to prejudgment interest on awards of attorney's fees. Brown v. Secretary of the Army, 78 F.3d 645, 654 (D.C. Cir. 1996); accord Hartman v. Duffey, 973 F. Supp. 199, 201 (D.D.C. 1997).
"Interest is compensation for the use of funds; it is not awarded as a penalty against a defendant." Pegues v. Mississippi State Employment Serv., 899 F.2d 1449, 1453 (5th Cir. 1990). An award of prejudgment interest is one appropriate way to compensate attorneys for delays in receiving their fees in Title VII and other civil rights cases. Alternatively, the district court may — but is not required to — compensate for delayed payment by adjusting the attorney's hourly rate upward from the rate charged at the time of billing to current market rates. Hopwood v. State, 236 F.3d 256, 281 n. 107 (5th Cir. 2000),cert. denied, 121 S.Ct. 2550 (2001); see Walker, 99 F.3d at 773 (approving 6% enhancement to lodestar to compensate for two-year delay, which equated to approximately 2.96% interest, compounded annually).
Raspanti argues that the Fifth Circuit held in Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.), vacated in part on other grounds, 903 F.2d 352 (5th Cir. 1990), that the prime rate must be used for prejudgment interest on attorney's fees awards in civil rights cases. Plaintiff overstates Alberti's holding. The Fifth Circuit held that the district court had erred by using the municipal bond rate, and it accepted the plaintiffs' contention that the prime rate was an appropriate interest rate in that case. Id. at 938; see also Hopwood, 999 F. Supp. at 921,aff'd in relevant part rev'd in part on other grounds, 236 F.3d at 256 (using prime rate to calculate prejudgment interest on costs under 42 U.S.C. § 1988). Alberti was a class action concerning conditions at the Harris County Jail. The complaint had been filed 16 years earlier and the court was still monitoring defendants' compliance with a consent judgment. Plaintiff's attorneys were awarded an interim attorney's fee award in excess of $2,000,000 for their first 15 years of work, during which time they had achieved "exceptional results" in a complex case and had suffered long delay in payment because of defendants' threat to cease cooperating in the implementation of substantive relief if plaintiffs sought attorney's fees. Alberti, 896 F.2d at 929, 936, 937.
Although "[n]either the Fifth Circuit nor the Supreme Court has approved a specific method of calculating delay since Missouri [v. Jenkins, 491 U.S. 274, 283-84 (1989),] and
Alberti," NAACP v. Housing Auth., No. 3:88-CV-0154-R, 1998 WL320315, at 3 (N.D. Tex. June 8, 1998) (Buchmeyer, C.J.), the prime rate used by the Fifth Circuit in Alberti is not the only rate that has won Fifth Circuit affirmation. The district court has the discretion to award prejudgment interest and to set an appropriate rate to make a Title VII plaintiff whole. Williams v. Trader Publ. Co., 218 F.3d 481, 488 (5th Cir. 2000). The rate of post-judgment interest set by 28 U.S.C. § 1961 is also an appropriate rate for prejudgment interest, and the court may vary it depending on the circumstances of the case. Id. (citation omitted);accord Parson v. Kaiser Alum. Chem. Corp., 727 F.2d 473, 478 (5th Cir. 1994); Dibler v. Metwest. Inc., No. 95-CV-1046-BC, 1997 WL 222910, at 4 (N.D. Tex. Apr. 29, 1997) (Boyle, M.J.); Brown v. Marsh, 868 F. Supp. 5, 18-19 (D.D.C. 1994) (Richey, J.), rev'd on other grounds, 78 F.3d at 645; Odom v. Frank, 782 F. Supp. 50, 52 (N.D. Tex. 1991) (Belew, J.).
Accordingly, plaintiff's request for prejudgment interest on the reasonable attorney's fees incurred by Roy Raspanti is granted. The court will also award prejudgment interest on the reasonable attorney's fees incurred by Schwartz and the intervenors. However, the rate will be that set by 28 U.S.C. § 1961(a), compounded annually as provided in Section 1961(b), which I find to be a reasonable rate in this case.
G. Costs
"[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d); accord Corpus Christi Oil Gas Co. v. Zapata Gulf Marine Corp., 71 F.3d 198, 205 n. 5 (5th Cir. 1995). Taxation of costs under Rule 54(d) is within the district court's discretion. Breaux v. City of Garland, 205 F.3d 150, 164 (5th Cir. 2000).
"The express provisions of 28 U.S.C. § 1920, however, limit the court's discretion in taxing costs against an unsuccessful claimant. The court may decline to award certain costs, but may not tax expenses that are not listed in § 1920." Embotelladora Agral Regiomontana. S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 417 (N.D. Tex. 1997) (Boyle, M.J.) (emphasis added) (citing 28 U.S.C. § 1920; Crawford Fitting Co. v. J.T. Gibbons. Inc., 482 U.S. 437, 442 (1987)). A court may tax as costs only the following: (1) fees of the clerk of court and marshal; (2) court reporter fees for all or any part of stenographic transcripts "necessarily obtained for use" in the case; (3) fees for printing and witnesses; (4) fees for exemplification and copies of papers "necessarily obtained for use" in the case; (5) docket fees; and (6) compensation of court appointed experts. 28 U.S.C. § 1920. Allowable costs are limited to these categories, and expenses that are not authorized by statute must be borne by the party incurring them. Crawford Fitting Co., 482 U.S. at 441-42. The regulation that allows for reimbursement of costs incurred during the agency proceedings in this case specifically incorporates Section 1920. 29 C.F.R. § 1614.501(e)(2)(ii)(C).
When cost-seekers neglect to supply any verification that the costs claimed were "necessarily incurred in the case" and instead state only that the costs were expended "in the preparation and litigation of this case," the district court does not abuse its discretion by denying all costs except filing fees. Phetosomone v. Allison Reed Group. Inc., 984 F.2d 4, 9 (1st Cir. 1993); accord Home Builders Ass'n v. City of Madison, 191 F.R.D. 515, 517. 518, 519 (N.D. Miss. 1999) (Wingate, J.) (citing Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991);Studiengesellschaft Kohle v. Eastman Kodak, 713 F.2d 128, 133 (5th Cir. 1983)).
Postage is not recoverable as a cost because it is not listed in Section 1920. Johnson v. State, No. 98-266T, 2000 WL 303305, at 14 (D.R.I. Mar. 22, 2000); Yasui v. Maui Elec. Co., 78 F. Supp.2d 1124, 1126 (D. Haw. 1999); Embotelladora, 952 F. Supp. at 417 (citations omitted). "Telecopy expenses, express delivery charges, and telephone expenses, like postal expenses, are not listed in the statute and represent 'overhead' costs, not litigation costs." Id. (citations omitted); see also Yasui, 78 F. Supp.2d 1129, 1130 (facsimile and long distance charges not taxable as costs); cf. Mizis, 135 F.3d at 1048 (court did not abuse its discretion in denying costs of couriers, postage and copying).
Thus, Roy Raspanti's request on his August 11, 1999 statement for $3.20 for a postal return receipt is denied. Rausch's requests for the following amounts are also denied: $9.55 in postage, $3.00 for a facsimile and $.55 for unspecified costs, on his September 1, 1998 statement; $9.25 in postage on his December 1, 1998 statement; and $9.75 in postage on his June 2, 1999 statement. Clade's requests for $38.90 in postage and overnight delivery charges, $28 in facsimile charges and $18.32 in long distance telephone charges are also denied.
Furthermore, "the travel expenses of attorneys are not recoverable under § 1920." Embotelladora, 952 F. Supp. at 418 (citing Coats v. Penrod Drilling Corp., 5F.3d 877, 891 (5th Cir. 1993); Roche v. City of Normandy, 566 F. Supp. 37, (E.D. Motion. 1983)); accord Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir. 1977); Odom, 782 F. Supp. at 52. Therefore, Clade will not be permitted to recover $12 in mileage expense.
Under Section 1920, a prevailing party may recover expert witness fees only for court-appointed experts. Crawford Fitting Co., 482 U.S. at 442. There were no such experts in this case. Roy Raspanti' s August 11, 1999 statement includes payments to Dr. Edmund C. Landry ($65 on 6/3/92) and to Elizabeth D. Bauer, M.Ed., LRC, CRC ($891.90 and $613 on 4/6/93), but does not explain the purpose of these payments. To the extent these costs may represent expert witness fees, they are disallowed because plaintiff has provided no evidence that these experts were appointed by the court or the EEOC.
Rausch requests reimbursement for various copying charges and Clade seeks $190.76 for copies of plaintiff's medical records. It is unclear whether the payments to Dr. Landry and to Bauer, described above, on Roy Raspanti's August 11, 1999 statement are for copying costs, but to the extent they may be, they are considered here.
The cost of copies of papers may be taxed under § 1920(4) if "necessarily obtained for use in the case." Copies may be deemed necessary even if not used in the trial of the matter. Consequently, in order for copies to be taxable in a case, the party seeking to tax the cost must show some evidence of necessity. Photocopying costs for the convenience, preparation, research, or records of counsel may not be recovered.Johnson, 2000 WL 303305, at 14-15 (emphasis added) (citing Piester v. IBM Corp., No. 97-2330, 1998 WL 1267929, at 2 (1st Cir. May 14, 1998);Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994); Grady v. Bunzl Pkg. Supply Co., 161 F.R.D. 477, 479 (N.D. Ga. 1995)); accord Fogleman, 920 F.2d at 286. When the movant provides no itemized breakdown of copying costs, it is impossible to tell which copies
were necessarily obtained for use in the case rather than obtained simply for the convenience of counsel. While we certainly do not expect a prevailing party to identify every [X]erox copy made for use in the course of legal proceedings, we do require some demonstration that reproduction costs necessarily result from that litigation.Id.
In the instant case, Rausch is the only attorney who provided an itemized breakdown of some, but not all, of his copying costs, some of which appear to have been "necessarily obtained for use in the case." The other attorneys have not demonstrated that the copies for which they seek reimbursement were necessarily obtained for use in the case. Accordingly, all copying costs requested by Clade and Raspanti will be disallowed. Those copying costs that are not itemized and not demonstrated to be necessary on Rausch's statements will be disallowed as follows: $22.80 on his September 1, 1998 statement; $29.40 on his December 1, 1998 statement and $32.40 on his June 2, 1999 statement. Thus, Rausch may recover $60.10 in copying costs, as itemized on his September 1, 1998 statement.
CONCLUSION
For all of the foregoing reasons, IT IS ORDERED that plaintiff's motion for attorney's fees and costs is GRANTED IN PART AND DENIED IN PART and that plaintiff is awarded $25,853.63 in reasonable attorney's fees for the work of Roy Raspanti and Jeffrey Schwartz, plus prejudgment interest on that amount at the statutory rate set forth in 28 U.S.C. § 1961 from the date that Raspanti first submitted her application for reimbursement for the work of Roy Raspanti to the Department of the Army until the date of judgment, plus post-judgment legal interest on that amount from the date of judgment until paid at the statutory rate set forth in 28 U.S.C. § 1961.
IT IS FURTHER ORDERED that the motion for attorney's fees and costs of intervenor, Joseph Rausch, is GRANTED IN PART AND DENIED IN PART and that he is awarded $8,040.00 in reasonable attorney's fees and $60.10 in costs, plus prejudgment interest on those amounts at the statutory rate set forth in 28 U.S.C. § 1961 from the date that Rausch first submitted his application for reimbursement to the Department of the Army until the date of judgment, plus post-judgment legal interest on those amounts from the date of judgment until paid at the statutory rate set forth in 28 U.S.C. § 1961.
IT IS FURTHER ORDERED that the motion for attorney's fees and costs of intervenor, Susan Clade, is GRANTED IN PART AND DENIED IN PART and that she is awarded $17,670.00 in reasonable attorney's fees, plus prejudgment interest on that amount at the statutory rate set forth in 28 U.S.C. § 1961 from the date that Clade first submitted her application for reimbursement to the Department of the Army until the date of judgment, plus post-judgment legal interest on that amount from the date of judgment until paid at the statutory rate set forth in 28 U.S.C. § 1961.