Johnson v. Roadway Express, Inc., 1999-STA-5 (ALJ Sept. 3, 1999)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

DATE ISSUED: September 3, 1999

CASE NO. 1999-STA-5

In the Matter of:

DANNY JOHNSON,
    Complainant

    v.

ROADWAY EXPRESS, INC.,
    Respondent

   A Recommended Decision and Order was issued in this case on July 21, 1999. On August 5, 1999, counsel for the complainant, Paul O. Taylor, Esquire, submitted a Petition for Costs and Attorney Fees in the amount of $29,713.41. This amount represents 122 hours of work by Attorney Taylor at $225.00 per hour and $2,263.41.00 in expenses. On August 19, 1999, counsel for the respondent, Sally J. Scott, Esquire, submitted objections to the fee petition.

   The respondent's first objection concerns the reasonableness of Attorney Taylor's hourly rate of $225. In order to determine whether the fees requested are reasonable under the STAA, 49 U.S.C. § 31105, "it is usual to use the lodestar method which requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate." Michaud v. BSP Transport, Inc., 95-STA-29 (ALJ June 12, 1997). See also Hensley v. Eckerhart, 461 U.S. 424 (1984). Thus, the lodestar method requires an analysis of whether the attorney's requested hourly rate is reasonable. In Clay v. Castle Coal Oil Company, Inc., the Secretary discussed the burden of proof as follows:

In seeking some basis for a standard, courts have properly required prevailing attorneys to justify the reasonableness of the requested rate. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence in addition to the attorney's own affidavits that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience and reputation. A rate determined in this way is normally deemed to be reasonable and is referred to for convenience as the prevailing market rate.

Clay v. Castle Coal Oil Company, Inc., 90-STA-37 (Sec'y June 3, 1994).

   The complainant's counsel, Paul Taylor, requests an hourly rate of $225.00 per hour for services rendered. He provides support for this rate through a personal affidavit attesting to his professional experience. Attorney Taylor outlines an extensive background in the transportation industry with over 15 years experience in the field. Attorney Taylor's law practice is national in scope and limited almost exclusively to transportation related matters. Attorney Taylor documents a former partner with comparable experience engaging in similar type practice who is compensated at $250.00 per hour. Furthermore, Attorney Taylor's billing rate of $225.00 per hour has been allowed by other Administrative Law Judges of the U.S. Department of Labor. See Bettner v. Daymark Foods, Inc., 97-STA-23 (ALJ June 25, 1998). Therefore, I find that Attorney Taylor's fee request for $225.00 per hour is reasonable.

   The respondent also lists several objections to the number of hours expended in the case as excessive. "Complainant's counsel is entitled to recover for those hours reasonably expended." Michaud v. BSP Transport, Inc. 95-STA-29 (ALJ June 12, 1997). The complainant's counsel requests reimbursement for a total of 122 hours spent on this matter. In support thereof, counsel submitted an itemized statement for the services rendered with the corresponding time spent. See Complainant Taylor's Petition for Costs and Attorney's Fees. The period of representation extended from October 19, 1998 through July 22, 1999.

   The respondent proposes a reduction in fees for expenses relating to the time Attorney Taylor utilized in preparing discovery requests, reviewing and preparing objections, and in researching issues in the case. The time billed for these tasks appears reasonably expended. Respondent also objected to the hours expended on travel time to the hearings and the actual time spent at the hearings. Attorney Sachs has adequately explained the hours billed. See Complainant's Response to Respondent's Objections to Complainant's Petition for Fees and Costs, ¶¶ 11-14. Therefore, Respondent's Objections to the number of hours expended as excessive or unreasonable are denied.

   Time spent performing clerical duties by an attorney is not recoverable in a petition for fees and costs. Charvat v. Eastern Ohio Regional Wastewater Authority, 96-ERA37 (ALJ Mar. 3, 1999); See also Doyle v. Hydro Nuclear Services, 89-ERA-22 (ALJ July 16, 1996). Traditional clerical expenses, such as local telephone calls, photocopying, and postage should not be billed separately. These expenses should be considered part of the office overhead expenses when an attorney set the hourly rate and cannot be included in an award of a representative's fee. Cf. Marcum v. Director, OWCP, 2 B.L.R. 1-894 (1980); Pritt v. Director, OWCP, 9 B.L.R. 1-159 (1986).

   Respondent objects to time Attorney Taylor spent on performing clerical duties. I agree that 4.25 hours of time should be excluded from Attorney Taylor's calculations as clerical functions. Attorney Taylor may not recover for the following charges:

   11/18/98      .25  hours billed for a telephone call to OALJ to        
                         obtain case number
   11/19/99     .25   hours reduction of the 2.5 hours billed for the     
                         obtaining Roadway's address
   12/09/98     2.0   hours attempting to locate Dr. Durany
   12/16/98     .25   locating Dr. Durany
   12/29/98     .25   call to Darlene Rothert to obtain name of           
                         Roadway's attorney
   2/11/99     1.0    skip trace Florence Cody; Letter to Ms. Cody's      
                         old address
   4/18/98     .25   Fax to Dan with Affidavit
      

   After consideration of the nature of the issues involved, the amount of time and work involved, and other relevant factors as discussed supra, it is concluded that the amount of 122 hours billed at 225.00 per hour will be reduced by 4.25 hours of clerical work. The fee petition is approved in the amount of $26,493.75 for attorney's fees and $2,263.41 for expenses totaling $28,757.16.

   The Respondent is ordered to pay the sum of $28,757.16 directly to Attorney Paul O. Taylor for costs incurred and services rendered to the claimant in this case.

       RICHARD A. MORGAN
       Administrative Law Judge

RAM:EAS:dmr