Hoch v. Clark County Health District, , 1998-CAA-12 (ALJ Mar. 15, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 (202) 565-4357 (202) 565-5325 (FAX)

Date Issued: March 15, 2000

Case No. 1998-CAA-12

David F. Hoch
    Complainant

    v.

Clark County Health District
    Respondent

    Complainant's attorneys have, in accordance with the Order issued in this matter on January 18, 2000, timely filed a petition for attorneys' fees totaling $28,087.50, and $954.25 in itemized expenses. Mr. Richard Segerblom, Esq. requests fees at a rate of $250 per hour for 41.4 hours of work, totaling $10,350.00. Ms. Sangeeta Singal, Esq. petitions for fees at a rate of $ 150 per hour for 118.25 hours, totaling $17, 737.50. In response to their petition, Clark County Health District (CCHD) objects to the hourly rates charged by both attorneys and the number of hours claimed by Ms. Singal. It contends that total fees awarded in this matter should not exceed $21,467.00 for services rendered and $954.25 in expenses. Specifically, CCHD considers Ms. Singal entitled, at most, to $120 per hour, and believes Mr. Segerblom is entitled to no more than $220 to $235 per hour. In addition, CCHD questions, as unsubstantiated or unproductive, 20.35 hours of Ms. Singal's time. In summary, then, CCHD would decrease by at least $621, or the difference between a rate of $250 and $235 per hour for the 41.4 hours claimed by Mr. Segerblom, and would reduce Ms. Singal's fee by at least $5,999.50, representing $3,052.50 in reduced hours and $2,947 in a reduced hourly rate.

    It is well settled that a prevailing Complainant in a Clean Air Act case may recover his expenses for reasonable attorneys' fees. Jenkins v. U.S.EPA, 92 CAA 6 (Sec., 1994). Such expenses are customarily determined by the "lodestar" methodology , a formula applied by multiplying the reasonable hours expended on Complainant's behalf by a reasonable hourly rate. It is, however, Complainant's burden to demonstrate the reasonableness of both the hourly rate applied and the number of hours claimed. Before addressing the number of hours invested in Complainant's case by Ms. Singal, I turn first to the hourly rates charged by Mr. Segerblom and Ms. Singal.

    In assessing an appropriate hourly rate, it is first necessary to define the relevant market in which the litigant's costs were incurred. In this instance, I conclude that Las Vegas, Nevada is the relevant geographic market for attorney services in this proceeding. Complainant works and resides in Las Vegas. The violations at his workplace with Respondent Employer occurred in Las Vegas or within Clark County, Nevada. Counsel for Respondent, CCHD, is located in Las Vegas, and Complainant's lead counsel, Mr. Segerblom, maintains his practices in Las Vegas. Indeed, all of the witnesses were located in Las Vegas and the hearing was held there. While Ms. Singal practices out of the Bay Area of California, her participation in this proceeding would not, alone, justify defining a relevant attorney fee labor market beyond the geographic area of Las Vegas. Thus, in National Wildlife Federation v. Hanson., 859 F.2d 313, 317 (4th Cir. 1988), the court stated that "[t]he community in which the court sits is the appropriate starting point for selecting the proper rate." See also, Schwarz v. Health & Human Services, 73 F.3d 895, 906 (9th Cir. 1995). To be sure, the Courts have signaled their intention to entertain circumstances beyond the venue of the location in which a trial or hearing convenes, yet no factor cited by Complainant here warrants an exploration of any fee structure beyond Las Vegas. See, Blackburn v. Metric Constructors, Inc., 86 ERA 4 (Sec. Decs. 1991 and 1992). Las Vegas is the relevant market.

    In requesting an hourly rate of $150 for Ms. Singal, Complainant adopts a two-prong approach. Ms. Singal proffers the affidavit of Mr. Richard M. Pearl, Esq., and expert on attorney's fees issues, who confirms that her hourly rate is reasonable for Bay Area attorneys with experience and expertise similar to Ms. Singal's, and I do not doubt the accuracy of Mr. Pearl's analysis. It must be noted, however, that the cases he researched are limited to California litigation and the hourly rates he surveyed were obtained from California law firms. These data are not relevant to an assessment of the Las Vegas geographic market.

    In an alternative approach, Mr. Segerblom certifies his belief, in his affidavit supporting Ms. Singal's petition, that a rate of $150 per hour for Ms. Singal, who graduated from Hastings Law School in 1997, is the prevailing rate for second-year associates in law firms in Las Vegas. Mr. Segerblom's affidavit does not, however, establish that his firm employs any second-year associates who bill at that rate nor does it establishes his actual knowledge of the billing practices of specific Las Vegas firms which do employ such associates.

    In contrast, CCHD submits the affidavit of Ms. Mary Kennington, Administrator of the largest law firm in Nevada. Ms. Kennington confirms that in October of 1999, the firm's second-year associates in Las Vegas billed at a rate of $120 per hour. This is the only direct evidence of prevailing fees in Las Vegas for attorneys with experience comparable to Ms. Singal's. To be sure, the associates enjoy the benefits of their employer's investment in office space, support staff, and other items of overhead, while Ms. Singal, as a sole practitioner must, as an independent entrepreneur, provide the accouterments of her profession for herself. Nevertheless, the comparison of compensation for a sole practioner with two years of experience and billing rates for second-year law firm associates is a valid, if not a perfect, benchmark. The rate at which the firm bills these associates presumably covers the cost of employing them and providing necessary resources. I, therefore, conclude that an attorney with two years of experience who exhibits the considerable skills and abilities Ms. Singal demonstrated in this proceeding would reasonably be entitled to bill in Las Vegas at an hourly rate of $120.00, and Ms. Singal's services will be approved at that level.

    Mr. Segerblom is Complainant's co- counsel. He is a sole practitioner in Las Vegas with over twenty years of experience. Federal employment and civil rights law constitute the focus of his practice. By affidavit, he confirms a fairly recent award of $235 per hour in an employment discrimination case in District Court, and asserts his belief that defense attorneys practicing employment law in Las Vegas customarily command $200 to $300 per hour. He petitions for $250 per hour in this proceeding, and CCHD objects.

    In CCHD's view, Mr. Segerblom's documentation fails to support the rate he seeks. CCHD notes that the highest rate documented in the petition is $235 per hour approved by the Court in the discrimination case counsel handled. Beyond that, CCHD observes that the affidavit confirms Mr. Segerblom's general familiarity with fees customarily charged in the community, but it provide no specific fee evidence. With respect to the fees billed by defense attorneys in employment cases, CCHD's responds specifically that $200 to $235 "coincides" with the rate billed by its lead counsel in this proceeding. No other specific defense attorney fee data was adduced.

    CCHD protests, and a careful review of the evidence confirms its concern, that no evidence in this record establishes a fee greater than $235 per hour was actually charged in a case analogous to this matter on any occasion by any attorney in the Las Vegas area. Indeed, no survey data of the geographic market was offered in support of the petition, and no affidavit or other documentation of specific fee levels was adduced. Indeed, there is no evidence in this record that, in 1999, Mr. Segerblom himself ever billed any other client at a rate of $250 per hour. Accordingly, I conclude on this record that an attorney in

Las Vegas, Nevada, with Mr. Segerblom's experience who exhibits the high level of expertise and impressive talents he demonstrated in this proceeding would reasonably be entitled to bill at an hourly rate of $235.00.

    Although CCHD does not challenge any of the 41.4 hours claimed by Mr. Segerblom, I have reviewed the chronological list of itemized tasks and hours he devoted to Complainant's cause. I find the number of hours he expended and the matters upon which he invested his time reasonable in all respects. Accordingly, his hours will, therefore, be approved.

    CCHD also challenges 20.35 hours claimed by Ms. Singal as unproductive or unsubstantiated. Jenkins v. U.S. EPA , 92 CAA 6 (Sec., 1994). Each of CCHD's objections will be considered below, seratim.

    Ms. Singal claims a total of 11.7 hours, including 2.5 hours on October 10, 1999, 5.5 hours on October 28, 1999, and 3.7 hours on October 29, 1999, for legal research and review of case law and review and analysis of the case law. CCHD objects to these hours on the ground that the itemized description of the work performed fails to "state the substance" of the research, and, therefore, fails to provide a basis to determine the relevancy of her work.

    The test of compensability, however, is not the ultimate relevancy of all research an attorney may pursue. Thorough research entails the exploration of potentially relevant lines of legal inquiry which eventually lead nowhere, as well as the isolation of issues worth developing for adjudication. It is the essential process which weeds out the unproductive background noise of a lawsuit, and allows the parties to join issue efficiently. The question then is not the relevancy of the research, since it always involves some unproductive tangents, but whether the time devoted to research is excessive.

    Ordinarily, an inverse correlation exists between an attorney's expertise and the time needed to prepare a case. The greater the expertise an attorney claims in a particular area of practice, the less time he or she should require for research. Conversely, the correlation between expertise and fee rates is usually direct. The greater the expertise the higher the hourly rate customarily charged for the expert's services. The expert's knowledge, of course, should yield time saving efficiencies in research, but the reduced hours are customarily billed at higher rate. In this instance, Ms. Singal will be compensated at the hourly rate of a second-year associate.

    Considering the complexity and scope of the issues developed by the parties and litigated at the hearing, and Ms. Singal's expertise as reflected in her hourly rate, I do not find the hours she devoted to research in any way excessive. Her actual research totaled 8 hours as reflected in her work on October 4 and 28, 1999. On October 29, she invested 3.7 hours reviewing and analyzing the case law. These hours are not unreasonable in the context of this adjudication.

    CCHD next questions 3.75 Ms. Singal claims on October 30, 1999, for preparing a summary of relevant testimony in the hearing transcripts. She previously claimed 3.5 hours reviewing and analyzing volume one of the transcript and 3.2 hours reviewing and analyzing volume two of the transcript.

    Volume one of the transcript consists of 216 pages, including the testimony of two witnesses. Volume two consists of 253 pages and includes the testimony of six witnesses. Having personally reviewed the transcript of these proceedings, and having analyzed the testimony of the witnesses called by parties, I find and conclude that the 10.45 hours, including the 3.75 hours preparing a summary, Ms. Singal spent digesting the fruits of the hearing testimony, represent a fairly modest investment of time devoted to this task. I find no excess in the amount of time she claimed for this aspect of her work.

    In contrast with the hearing testimony, the documentary evidence adduced by the parties at the hearing represented a rather limited, fairly manageable record, and CCHD challenges the 4.5 hours claimed on October 29, 1999, for analyzing and extracting relevant portions of these exhibits. CCHD notes that counsel reviewed and analyzed these documents for 4 hours on October 3, 1999, selected and prepared them for 2 hours on October 4, 1999, and addressed various aspects of the documents from time to time during the two-day hearing. Considering the totality of the documentary record adduced at the hearing, CCHD's concern in this regard is not without merit. While counsel is surely entitled to analyze and extract portions of documents for use or citation in her Post Hearing Brief, 4.5 hours devoted to this task on October 29 is excessive in light of the document review and analysis previously claimed and the review and analysis of documents which is necessarily included in the 25.7 hours devoted to the preparation of the Post Hearing Brief.

    CCHD further challenges as duplicative the entry of 6 hours on both November 17 and 18 to "continue and complete Reply to Respondent's Brief." CCHD notes overall a total of 31.75 hours are claimed for Complainant's Reply Brief, and the duplicative entry should be subtracted from that total. It emphasizes the "and complete" language in both entries as an indication of their duplication. Presumably, if the Reply was "complete" on November 17, the entry on November 18 is an error. While these entries may or may not constitute the erroneous double entry of a single item, considered in context, I do find them ambiguous, and reasonably subject to the interpretation Respondent advances. As such, considering the burden which Petitioner must satisfy in seeking fee approval, only one of the entries can be approved.

    CCHD also objects to duplication among Complainant's attorneys in reviewing the Decision and Order entered in this case. Combined, they billed 3.2 hours to read the decision, and CCHD wants this cut in half. The Decision and Order in this matter is 47 pages long, and the amounts requested by both attorneys to review it are reasonable.

    Now, CCHD does not contend that co-counsel were not each entitled to read the decision. Rather, it suggests that the combined time totaling 3.2 hours is excessive. In this context, I note the itemized hours submitted by Mr. Segerblom shows that he spent one hour reviewing the decision; Ms. Singal spent 2.2. As previously observed, the correlation between the expertise exhibited by counsel and the time needed to accomplish a task is inverse; the greater the expertise, the less the time needed to accomplish a task. Here reality tends to confirm theory. Mr. Segerblom needed slightly less than half the time his co-counsel required to review the decision, and his hour is approved. Expertise indeed offers its own efficiencies.

    Yet, Ms. Singal, as co-counsel, was also entitled to review the decision, and the question is whether the 2.2 hours she invested is excessive under the circumstances. Considering the comparative expertise of Mr. Segerblom

and Ms. Singal, as reflect in their respective hourly rates, and recognizing that the comparison is not capable of exact formulation nor a measure of precise efficiencies, she might be expected to take roughly twice as long as Mr. Segerblom to review the 47 page decision. While the comparative expertise of counsel provides some guidance as a factor in assessing the reasonableness of line item time expenditures such as this, having considered the detailed fact circumstances discussed in the decision and the complexities of the fact and legal applications it entailed, I conclude that the 2.2 hours Ms. Singal took to review it is not excessive.

    The time she devoted to this task is reasonable and approved.

    Finally, CCHD questions the two hours Ms. Singal spent in consultation with an attorneys' fee expert in preparation for submission of her fee application. CCHD correctly contends, as I have previously discussed in detail, that the relevant geographic market for the evaluation of fees in this matter is the Las Vegas, Nevada area. Ms. Singal and the expert she consulted addressed fees in California, generally, and the Bay Area in particular. The market they discussed and surveyed is not a relevant geographic market in this proceeding. Accordingly, CCHD's objection to the two hours claimed for this consultation is warranted and sustained.

    In summary, the following items claimed in Ms. Singal's petition are denied:

(1) 4.5 hours for document analysis on October 29, 1999;

(2) 6 hours to continue and complete Reply on November 18, 1999;

(3) 2 hours consultation with expert on February 6, 2000.

    For all of the foregoing reasons, Mr. Segerblom is awarded a fee for services rendered totaling $9729.00, representing 41.4 hours billable hours at a rate of $235 per hour. Ms. Singal is awarded a fee for services rendered totaling $12, 690.00, representing 105.75 billable hours at a rate of $120.00 per hour. Complainant also seeks recovery of expenses for transcript and mailing costs totaling $925.40. CCHD does not challenge these latter expenses, and I find them reasonable. Therefore:

    IT IS ORDERED that Respondent pay Complainant's attorneys the sum of $23, 344.40 for services rendered to and costs incurred by Complainant.

       Stuart A. Levin
       Administrative Law Judge