Conclusion
Except as stated above, I find that portion of the application dealing with Mr. Kohn to
be reasonable, and award 451.42 hours (628.95 hours claimed - 177.53 hours deducted), at a market rate of
$300 per hour, or a total attorney fee award of $135,426.00 .
Ms. Kronstadt
Math Errors
Respondent first argues that Ms. Kronstadt's time records contain a total of .40 in
mathematical errors. (See Respondent's Opposition, pp. 34-35; Complainant's Application, Exhibit
3, Attachment B). After reviewing the records I agree and will deduct 0.40 hours from Ms.
Kronstadt's total.
[Page 10] Excessive Conferencing
According to Respondent's calculations, 5.95 hours (or 30.7%) of Ms. Kronstadt's total
billable hours were spent in consultation with Mr. Kohn. (See Respondent's Opposition, pp. 35-36).
As Mr. Kohn apparently felt the need to supervise her closely, I feel it would be inappropriate to compensate
Ms. Kronstadt for this time at her full rate. Therefore, the court will reduce this amount by approximately
one-third, or 2 hours.
Work to be Billed at Lower Rates
Respondent argues that another 10 hours of Ms. Kronstadt's activities could have been
accomplished by a junior and less expensive attorney. (See Respondent's Opposition, pp. 37-38).
My review reveals several hours worth of time billed for research, "reading cases," review, or
phone conversations, all of which could have been accomplished by an attorney with a lesser hourly rate.
Therefore, the court will reduce these hours by one-quarter, or 2.5 hours .
Respondent also argues that the rest of Ms. Kronstadt's time was spent in factual
investigation or scheduling of simple matters, which could have been handled by paralegals at a reduced rate.
(See Respondent's Opposition, pp. 38-40). I agree that much of the factual investigation could have
been performed by paralegals or clerks, and will therefore reduce these hours billed by approximately one-
third, or 2.8 hours.
Conclusion
Except as stated above, I find that portion of the application dealing with Ms. Kronstadt
to be reasonable, and award 17.05 hours (24.75 hours claimed - 7.7 hours deducted), at a market rate of $195
per hour, or a total attorney fee award of $3,324.75 .
Clerks
Complainant also submits records of the hours worked by three different law clerks:
Carousel Bayrd, Russell Burchill, and Terrell Stevens. (See Complainant's Application, Exhibit 3,
Attachments C, D, and E). I first note that Mr. Kohn's affidavit and the Application for Attorney's Fees and
Costs request a total of 185 hours for law clerk work. (See Complainant's Application, p. 41; Kohn
Affidavit, p. 13). However, my review of the hours shown on the various law clerk timesheets reveals a total
of only 145 hours, prior to any deductions I might make. Therefore, all deductions are be made from that
total.
File Familiarization and Duplicative Efforts
Respondent objects to time spent on "file familiarization" activities by
Bayrd. (See Respondent's Opposition, p. 40). On June 8, 1998 Bayrd billed a total of 5.25 hours
for reading and organizing the file. I agree with Respondent that hours spent on organization may be billable,
but hours spent on file familiarization are duplicative and not reimbursable. (See, e.g., Blum v.
Witco Chem. Corp., 829 F.2d 367 (3rd Cir. 1987). However, as Bayrd did not segregate the time spent
on each activity, all 5.25 hours are excluded. (See Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)).
[Page 11] Respondent also objects to 10 hours
billed by Burchill as duplicative: 6 hours spent attending the Doyles' depositions on October 3, 1998, and 4
hours spent "research[ing] depositions" on November 2, 1998. (See Respondent's
Opposition, p. 42). Respondent objects to the hours billed for attendance at the deposition on the grounds that
Complainant failed to demonstrate the need for the attendance of a second attorney or paralegal at the
deposition. (See Respondent's Opposition, p. 42). I disagree that the hours spent attending the
deposition should be excluded as duplicative, especially since the time billed was that of a clerk or paralegal,
not that of an attorney at a higher rate. However, I do agree that the time spent researching depositions was
probably simple file familiarization and should not be allowed; thus 4 hours of Burchill's time is
disallowed.
Respondent also objects that 9.25 hours of Stevens' time is for file familiarization and
should be excluded. (See Respondent's Opposition, pp. 42-43). However, after reviewing the
timesheets, I am persuaded that only 2 hours on January 27, 1998 spent "review[ing]
decisions and orders" should be excluded on this basis. Respondent also objects that another 2.5 hours
billed by Stevens on January 27, February 2, and February 11, 1998 is duplicative work and should be
excluded. (See Respondent's Opposition, p. 43). However, after reviewing the timesheets, I am
not persuaded that these hours were duplicative; therefore the billings will be allowed.
Improperly Documented Work
Respondent also objects that 8 hours of Stevens' time is improperly documented, as it
contains no date and no description of work performed. (See Respondent's Opposition, p. 44).
After a review of the records, I agree with Respondent and disallow all 8 hours.
Work to be Billed at Lower Rate
Respondent objects to 5.5 hours billed by Bayrd on June 9, 1998 for work described
as "calculate, check medical records, organize medical records, met with Steve, met with Shannon,
photocopied documents, create figure chart;" and 6.5 hours on June 10, 1998 for "Arbitration
(take notes, help calculate figures, feed meter). (See Respondent's Opposition, p. 40). While some
of these activities are clearly compensable (organizing records, etc.), others are clearly not (photocopying,
"feeding" the meter). As the records fail to properly segregate the time spent, the court will
disallow all 12 hours.
Respondent objects to another 21 hours of Burchill's time as primarily clerical in nature
and unsegregated, and argues the total hours should therefore be excluded. (See Respondent's
Opposition, p. 41-42). I first note that the 7 hours billed on September 14, 1998 for "Scheduling Experts
and clients" is clearly excessive, and although I will allow the task, the number of hours will be reduced
by half, or 3.5 hours. Burchill also billed 6 hours between October 28-30, 1998 for "Doyle
Out of Pocket Expense Report Research and Data Entry;" while the preparation of this report would
be compensable, simple data entry would more properly be considered clerical work. However, as the types
of work have not been segregated, I will again exclude the entire 6 hours. Finally, as the 8 hours
billed on November 16, 1998 encompass a large number of tasks without specifying the amount of time spent
on each, I will exclude those 8 hours as improperly documented.
[Page 12] Respondent also objects to 21 hours
of Stevens' work as clerical. (See Respondent's Opposition, p. 43). I will allow some
of the 9 hours billed on February 2, 1998 for review of expenses, preparation of spreadsheet, and preparation
of affidavit, as these tasks are similar to the work of paralegals; however, as the total number of hours spent
seems excessive, I will reduce this by one-third, or 3 hours. However, I disallow all 10
hours billed on February 3 and 4, 1998 for trips to the Department of Labor to photocopy cases
concerning the Davis-Bacon Act, as this task is clearly clerical in nature. Respondent also objects to 2 hours
on February 11, 1998 billed for drafting of a letter and faxing of the same; as the report fails to segregate this
time into billable (drafting) and non-billable (faxing) time, I will disallow all 2 hours.
Conclusion
Except as stated above, I find that portion of the application dealing with the law clerks
to be reasonable, and award 81.25 hours (185 hours claimed - 40 hours not documented - 63.75 hours in other
deductions) at a market rate of $85 per hour, or a total attorney fee award of $6,906.25 .
COSTS
Expert Witness Fees
Complainant seeks expert witness fees in the following amounts: $5,800.00 for Dr.
Steven Jackson; $9,650.00 for Mr. Marvin Hobby; $700.00 for Mr. Randy Robarge. (See
Complainant's Application, pp. 43-45). Respondent does not object to the fee for Mr. Robarge, and therefore
that $700.00 is granted. (See Respondent's Opposition, p. 45).
Respondent argues that the amount requested for Mr. Hobby is excessive because he
is not an expert and the court rejected him as such. (See Respondent's Opposition, p. 45).
Respondent makes the same arguments regarding Dr. Jackson's fee, and points out that he did little of the
work himself, primarily supervising and reviewing Mr. Hobby' work. (See Respondent's
Opposition, p. 45). In the alternative, Respondent argues that as both men examined the same calculations
and data, the work of one is arguably duplicative. (See Respondent's Opposition, p. 45). Finally,
Respondent argues that their own experts cost only $5,518.00, and Complainant's fees should be limited to
a similar amount. (See Respondent's Opposition, p. 45).
First, I disagree that Respondent's costs for expert should be controlling. I agree that
the charges for Mr. Hobby are clearly excessive as he is not an expert and was rejected as such by the court.
Therefore, I will reduce Mr. Hobby's hourly rate from $200 to $85 per hour, which brings his rate in line with
the rates of paralegals and law clerks; however, I allow the full 48.25 hours claimed for Mr. Hobby's work,
for a total fee of $4,101.25 . I also believe the charges for Dr. Jackson to be excessive, as he
primarily supervised and reviewed Mr. Hobby's work, relying heavily on Mr. Hobby's work in the formulation
of his own reports. Although I will allow Dr. Jackson's rate of $200 per hour, I will reduce his time by 14
hours; this results in 15 hours at $200 per hour; or a final award of $3,000.00.
Costs Incurred by Law Firm
As Respondent has not objected to any of the other costs incurred by Mr. Kohn's law
firm and billed to Complainant ($3,496.55 ), I grant these costs.
[Page 13]
Costs Incurred by Complainant
Complainant also seeks reimbursement for a number of costs directly incurred by the
Complainant himself, including: $2018.18 in telephone bills; ,088.00 for travel to Washington, D.C. (two
round-trips); $215.29 for hotel and meal costs for one trip to Washington, D.C.; $110.00 for meals and lodging
on another trip to Washington, D.C.; $179.20 for travel in Alabama; ,152.00 for faxes sent or received from
Complainant's home computer; $128.00 in case related photocopy costs; and $39.44 in postage or delivery
costs. (See Complainant's Application, p. 48).
Respondent objects to several of these costs, including: the $759.29 ($544.00 in mileage,
and $215.29 in lodging and food) related to the Maybray deposition (another motion related to these costs is
currently pending before the court); the $544.00 in mileage and $110.00 in undocumented lodging and meals
related to a June 1998 mediation; the 560 miles of travel ($179.20) by Complainant while performing
investigations related to his complaint in Alabama; the $128.00 in photocopies and ,152.00 in faxes (argued
to be undocumented); and the $20.00 of the $39.44 claimed in postage which is not properly documented.
(See Respondent's Opposition, pp. 46-47).
As Respondent has not objected to the $2018.18 in telephone charges, that
amount is awarded.
Respondent is correct that the costs of the Maybray deposition are the subject of
separate motions before the court. However, in the interest of judicial economy, I address the subject here.
My Partial Order on Summary Judgment Motions of December 17, 1998, ordered Respondent to pay
"all reasonable costs related to the deposition of Ms. Maybray;" still at issue are the costs incurred
by Complainant for his trip to Washington, D.C. to attend the deposition. Complainant argues that
Respondent's failure to properly respond to discovery requests (which led to the court's order that
Respondent pay the costs of Ms. Maybray's deposition) makes the decision to have Complainant attend the
deposition "reasonable." However, I disagree; I find Mr. Kohn's few arguments weak, and can
discern no reasonable need for Complainant's attendance. Therefore, the $759.29 in costs sought for
Complainant's attendance at the Maybray deposition are denied.
Respondent also objects to the mileage, food, and lodging expenses claimed from the
June 1998 mediation in Washington, D.C. (See Respondent's Opposition, p. 46). As there is no
actual documentation of the food and lodging expenses,10 and no other way I can confirm that any expense was even incurred (as could be done in
Johnson v. Bechtel, 1995 ERA-11 (Sec'y Feb. 26, 1996) (allowing certain costs, such as telegrams
received by the court, for which no actual receipt could be produced)), I must disallow the $110.00.
However, I will award the $544.00 claimed for mileage, as mileage has been found recoverable
(see Johnson v. Bechtel ), and the court can confirm both Complainant's attendance at
the mediation and the mileage from his home to the Washington, D.C. area. 11
[Page 14]
Respondent objects that there is no documentation of the miles claimed for travel in
Alabama, and again no proof of any out of pocket expense. (See Respondent's Opposition, p. 46).
I deny the amount claimed for this mileage, as there is no proof of the actual amount of miles claimed, nor
even a list of Complainant's destinations when he allegedly incurred this mileage. This contrasts with the
mileage awarded for the June 1998 mediation, where it was possible to calculate the distance from Claimant's
home to Washington D.C., and it is known that he did attend the mediation. Therefore the $179.20 requested
for travel in Alabama is denied.
Respondent also objects to $128.00 in photocopies and ,152.00 in faxes from
Complainant's home computer. (See Respondent's Opposition, pp. 46-47). Complainant requests
$2.00 per page for the 288 fax pages (or $576.00) allegedly shown by his computer records (see
Complainant's Application, Exhibit 4, Attachment 7), plus an additional $576.00 as an estimated cost for those
faxes he cannot prove due to damage to his home and records from a hurricane. (See
Complainant's Application, Exhibit 4, pp. 7-8). While I sympathize with Complainant's loss from a natural
disaster, I can not award costs for which there is a lack of documentation or any other proof. Therefore, the
$576.00 in estimated fax costs is denied. My own review of the fax logs provided reveals a total of 69
transmissions (although no page totals are provided, I assume one page per transmission, as Complainant
apparently has). Complainant seeks reimbursement for 219 pages received, but the documentation reveals
many instances of errors (noted as Phase B or D error in the results column on the log), and only 128 pages
of apparently successful transmission. As my review reveals only 197 pages successfully received or
transmitted, Claimant is awarded only $394.00 for fax costs. As Complainant has provided no
documentation or breakdown of his photocopy costs, the $128.00 sought is denied.
Respondent also objects to the $39.44 claimed by Complainant in postage costs,
particularly the $20.00 in undocumented costs. (See Respondent's Opposition, p. 47). I agree that
Complainant can not recover for undocumented or estimated costs, especially when there is no other
circumstantial evidence the costs were incurred. Therefore $20.00 will be struck, and Complainant is
awarded only $19.44 in postage costs.
Conclusion
Therefore, Complainant is awarded $700.00 in expert witness fees for Mr. Robarge;
$4,101.25 in expert witness fees for Mr. Hobby; $3,000.00 in expert witness fees for Dr. Jackson; $3,496.55
in miscellaneous law firm costs; $2018.18 in telephone charges; $544.00 for mileage to the June 1998
mediation; $394.00 in fax costs; and $19.44 in postage costs. The total amount of costs awarded equals
$14,273.42 .
[Page 15]
ORDER
It is hereby ordered that Hydro Nuclear Services pay to Complainant's attorney
the sum of $145,657.00 as a fee for representation of the Complainant, and to Complainant's attorney and
Complainant the sum of $14,273.42 in expenses.
RICHARD D. MILLS
District Chief Judge
Metairie, LA
RDM/bc
NOTICE: This Recommended Decision and Order will automatically become the final
order of the Secretary unless, pursuant to 29 C. F. R. Section 24.8, a petition for review is
timely filed with the Administrative Review Board, United States Department of Labor,
Room S-4309, Frances Perkins Building, 200 Constitution Ave., N. W., Washington, DC
20210. Such a petition for review must be received by the Administrative Review Board
within ten business days of the date of this Recommended Decision and Order, and shall be
served on all parties and on the Chief Administrative Law Judge. See 29 C. F. R. Sections
24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).
[ENDNOTES]
1 This is Complainant's second fee petition.
Complainant filed an initial fee application in December 1995, and on July 16, 1996 this court awarded fees
and costs for work performed through December 11, 1995. (See Doyle v. Hydro Nuclear
Servs., 89-ERA-22 (ALJ July 16, 1996). This Recommended Decision and Order was affirmed by the
Administrative Review Board in a Final Decision and Order dated September 6, 1996. (See
Doyle, (ARB, Sept. 6, 1996)). Thus the present application covers work done since December 11,
1995.
2 Complainant has requested costs as well,
including: $16,150.00 in expert witness fees, $3,496.55 in costs of Complainant's law firm billed to
Complainant, and $4,930.11 in costs incurred directly by Complainant himself. Respondent argues
Complainant in entitled to no more than a total of $11,052.17 in costs. These issues will be addressed
separately, below.
3 However, I agree that the rate of inflation
is a factor to be considered in determining a proper hourly rate.
4 Some of the Johnson factors that
I feel merit an the increase in Mr. Kohn's rate include: (1) the time and labor involved; (4) the preclusion of
other employment; (6) Mr. Kohn's acceptance of the case on a contingent basis; (8) the amounts involved
and the results obtained; (9) the experience, reputation, and ability of the attorney; and (12) awards in similar
cases.
5 Usually these entries are identical amounts
of time billed on the same day for identical work descriptions.
6 Respondent has noted several instances of
severe over-billing, including: 18 hours for a single phone call on November 6, 1996 (revealed on phone
records to have lasted only 18 minutes); 1.67 hours for a phone call on November 12, 1996 (revealed on
phone records to have lasted only 10 minutes); and 5 hours for a March 31, 1998 conference call with the
court (revealed on phone records to have lasted approximately 5 minutes).
7 From the evidence presented, it appears the
appeal in question was originally brought to the Sixth Circuit, but after Complainant's efforts the appeal was
transferred to the Third Circuit.
8 I note that Complainant claims approximately
18.5 hours for preparation of the Motion for Summary Judgment (and accompanying evidence) but
approximately 32 hours for the Reply to Respondent's opposition.
9 I subtract 4.5 hours from the preparation
of the original motion, and 16 hours from the preparation time of responses.
10 Complainant alleges that these and other
records were destroyed by a hurricane in 1998. (See Complainant's Application, Exhibit 4, p. 5).
11 In addition, unlike Complainant's
attendance at the Maybray deposition, I can clearly understand the need to have Complainant present at a
mediation session which was attempting to stipulate on major disputed issues.