Murray v. Air Ride, Inc., 1999-STA-34 (ALJ May 31, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Dated: May 31, 2000
Case No. 1999-STA-0034

IN THE MATTER OF

DAVID L. MURRAY
    Complainant

    v.

AIR RIDE, INC.
    Respondent

   On February 29, 2000, I issued a Recommended Decision and Order in this case finding in favor of the complainant. Respondent was ordered to reinstate the complainant, and it was recommended that he be paid substantial back wages and compensation for emotional distress.

   Subsequently, complainant's counsel filed a fee petition requesting a fee of $51,561 for 151.65 hours of services to the complainant billed at $340 an hour, and reimbursement of expenses totaling $2,425.75. Respondent has objected both to the hourly billing rate and to some of the items listed on the fee petition.

Hourly Billing Rate

   By way of introduction, it must be noted that complainant's counsel did an outstanding job representing the complainant in this matter. He is a highly competent attorney who demonstrated his expertise in the litigation of employment discrimination cases throughout the course of this proceeding. It is doubtful that complainant would have been successful in this case if he had not been represented by such an able attorney.

   The parties agree that the attorney's fee for complainant's counsel should be calculated using the "lodestar method" where the basis for the fee is the number of hours of services reasonably expended multiplied by a reasonable hourly rate. See, e.g., Hensley v. Eckerhart, 461 U.S. 424 (1983). Where the parties differ is in determining an hourly rate that is reasonable.

   Complainant's counsel asks to be paid at a rate of $340 an hour for his services to the complainant in connection with this case. That billing rate is based on the so- called "Laffey Matrix" applied in cases before the U.S. District Court in the District of Columbia. See, e.g., Laffey v. Northwest Airlines, 572 F. Supp 354, 371 (DDC 1989); attachment C to complainant's fee petition. The Laffey Matrix purportedly sets out the hourly rates prevailing in the community for similar work based on the number of years an attorney has been practicing law. See Laffey, supra, at 371. Under what appears to be the latest Laffey Matrix, for attorneys with more than 20 years of experience the hourly rate prevailing in the community is $340 an hour during the period 1999-2000, and $335 an hour for the period 1998-99.

   Respondent contends that the Laffey Matrix is not applicable to DOL proceedings, and cites Blum v. Stenson, 465 U.S. 886, 895 and n.l1 (1984), which held that a reasonable attorney's fee is based on the rates prevailing in the community for similar services from attorneys of similar skill, experience and reputation. Respondent asserts that the most reasonable rate to apply here is the rate complainant's counsel charges to his "clients who can afford something in the neighborhood of commercial rates ...," which was $235 an hour in 1999 and is $250 an hour in 2000 (fee petition at Appendix B).

   However, Blum v. Stenson goes further than the respondent acknowledges. The court stated that:

Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization ....

The statute and legislative history establish that "reasonable fees" under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.

Id. at 895. Accordingly, under Blum, it is the market rate in the community rather than the rate usually charged by complainant's counsel which determines the rate at which his services will be compensated. Since the Secretary has followed Blum in awarding attorney's fees in other whistleblower cases, see, e.g., Jenkins v. US. Environmental Protection Agency, 92-CAA-6 (Dec. 7, 1994); Clay v. Castle Coal and Oil Co., 90- STA-37 (June 3, 1994), rev'd on other grounds, 55 F.3d 41 (2d Cir. 1995), the principles of that case must apply here. Accordingly, complainant's counsel's usual billing rate is not determinative of the rate at which he can be compensated for the services performed in connection with this case.

   However, it is the burden of complainant's counsel to establish the prevailing market rate for attorneys of similar skill and experience. As the Secretary stated in Clay:

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, supra, slip op. at 4, quoting Blum v. Stenson, supra. To establish the reasonableness of the requested hourly rate, complainant's counsel submitted affidavits from three attorneys in practices similar to his, all of whom stated that the Laffey Matrix is an accurate reflection of the usual rates charged by attorneys in Washington, DC in cases similar to this case. One of the attorneys stated that he personally charges higher rates. Respondent provided no contrary evidence. I find that complainant's counsel has provided satisfactory evidence that the Laffey Matrix establishes prevailing rates in the community for similar services, and therefore I will set the hourly rate for complainant's counsel based on it.

   Complainant's counsel provided services to the complainant in this case from January 26, 1999 through March 30, 2000. Under the Laffey matrix, the hourly rate for attorneys with 20 or more years of experience was $335 from June 1, 1998 through May 31, 1999, and $340 thereafter. I will apply those rates here.

Objections to Billed Time

   Respondent has filed objections to many of the hours billed by complainant's counsel. First, respondent objects to the 8.6 hours billed by complainant's counsel prior to the filing of the complaint with OSHA on March 29, 1999, and a total of 13.1 hours (including the 8.6 hours before the complaint was filed) before he was actually retained by complainant at the end of June, 1999. Respondent fails to explain why services performed for the complainant prior to the filing of the complaint are not "reasonably incurred ... in bringing the complaint." 49 U.S.C. §31105(b)(3)(B). I wish all potential whistleblower complainants consulted an attorney prior to filing their complaints and attempted to resolve their conflicts with their employers prior to filing a complaint, as was done here. Similarly, respondent fails to cite any authority for the proposition that services provided prior to counsel's being formally retained are not compensable. The issue is whether the services were reasonably incurred in the development of complainant's case. Complainant's counsel should not be penalized for his willingness to spend time on this matter prior to formally agreeing to represent the complainant.

   Second, respondent's objection to 10 hours spent by complainant's counsel on August 9, 1999 preparing for and conducting the deposition of Glen Beecher, respondent's

representative in connection with this case, is rejected. If memory serves me correctly (always a dubious proposition at my age), Mr. Beecher was respondent's only witness at the hearing. Spending less than eight hours preparing for a deposition of respondent's primary witness, a deposition which took over two hours, is not excessive. Moreover, that respondent's counsel spent less time preparing for this deposition is of no relevance. Clearly, taking a discovery deposition of a hostile witness requires much more preparation than attending the deposition of the representative of your own client.

   Third, respondent objects to a total of eight hours billed by complainant's counsel on October 13 and 22, 1999 to review the transcript of the hearing. The transcript of the hearing was over 300 pages in length. It does not strike me as excessive to spend eight hours reviewing such a lengthy transcript in preparation for writing a brief.

   Fourth, respondent objects to the 37 hours billed from October 25- 29, 1999 to write complainant's post-hearing brief, and requests that complainant's counsel be required to file more detailed billing records to substantiate these hours. Interestingly, respondent's counsel do not note how many hours they spent drafting their brief, but simply allege that 37 hours is excessive. I fail to see how it is excessive to spend one work week writing a well-written and persuasive brief in a case with a relatively large record .

   Fifth, respondent objects to the 4.5 hour spent by complainant's counsel on November 1 and 3, 1999 to review the brief and prepare an errata sheet. I agree with respondent that time spent by complainant's counsel correcting his own mistakes in his brief, requiring the filing of an errata sheet and a revised brief, is not time which is reasonably incurred in furtherance of the case. Accordingly, this objection is sustained, and 4.5 hours will be deducted from the hours expended by complainant's counsel.

   Sixth, respondent objects to the 7.5 hours spent on March 27, March 29 and March 30, 2000 preparing the fee petition. Although the listing of the hours spent by date and subject matter is usually held to be a clerical job not subject to an attorney's fee, the fee petition in this case was much more extensive. It includes what is essentially an I 1 page brief on the attorney fee issue; a five-page declaration by complainant's counsel; three declarations from other attorneys; a copy of the Laffey Matrix; and three exhibits in support of expenses separately claimed on the fee petition. Spending 7.5 hours obtaining all of this evidence and drafting the text of the fee petition clearly is not excessive.

   Therefore, of the 151.65 hours billed by complainant's counsel, I have sustained respondent's objection s to 4.5 hours billed in November, 1999. Of the remaining 147.15 hours, 11.6 were for services prior to June 1, 1999 which, at $335 an hour, equals $3886. That leaves 135.55 hours for services after June ,1, 1999. At $340 an hour, the fee for these services is $46,087. Combined, complainant's counsel is awarded an attorney's fee of $49,973.

Reimbursement of Expenses

   Complainant's counsel seeks reimbursement of expenses generated by this case in the amount of $2,425.75. Respondent objects to $9.50 on February 3, 1999 and $18.52 on March 19, 1999 solely on the ground that the complaint had not been filed at the time those expenses were incurred. As I stated above, I see no barrier to awarding attorney's fees (and related expenses) arising prior to the filing of the complaint, as long as they are related to the complaint which ultimately was filed. Therefore, this objection is denied, and I award the entire amount of expenses billed.

       JEFFREY TURECK
       Administrative Law Judge