Harris v. Tennessee Valley Authority, 97-ERA-26 (ALJ Oct. 13, 1998)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter
Harris v. Tennessee Valley Authority, 97-ERA-26 (ALJ Oct. 13, 1998)

U.S. Department of Labor
Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104

REFERRAL DATE: October 13, 1998
CASE NO.: 97-ERA-00026
97-ERA-00050

In the Matter of

ANN P. HARRIS
Complainant

TENNESSEE VALLEY AUTHORITY
Respondent

SUPPLEMENTAL DECISION AND ORDER GRANTING ATTORNEY FEES

This application for attorney's fees is submitted under the provisions of the Equal Access to Justice Act (EAJA), 5 U.S.C. §504 and its implementing U.S. Department of Labor (DOL) regulations at 29 C.F.R. §16.101-16-308.

On July 14,1998, Lynne Bernabei , Esquire, partner in the law firm of Bernabei and Katz attorneys for Complainant, submitted an application for approval of counsel fees and expenses in the sum of $274,549.34 relating to the above-captioned claim. On August 17, 1998, Thomas F. Fine, Esquire, the Assistant General Counsel of the Tennessee Valley Authority (TVA), the Respondent, filed objections to the fee application.

Mr. Fine's position was that the case was settled based upon a Memorandum

[Page 2]

of Understanding (MOU) signed on June 25, 1998, and that the value of the MOU was worth $190,000.00. Ms. Harris also gave up any claim she may of had to ever be employed by TVA or to work at a TVA facility. Mr. Fine contends "It is TVA position that complainant is not entitled to an award of fees and costs under the ERA. In any event , her application for attorney's fees is grossly inflated, since the benefit to her of the settlement was so minimal". I agree with Ms. Harris that she has obtained significant relief in the settlement. In point of fact, the TVA had proposed a significantly lesser sum of money for the three days prior to the actual memorandum of settlement, which was obtained only after substantial Court assisted mediation. Further, the Court has no recollection of Ms. Harris desiring employment at TVA or for any of its contractors. In addition, TVA was adamant in it's desire to conclude their relationship with Ms. Harris.

With respect to the other objections to the fee application, the grounds for the objections were:

A. There is no provision under the ERA for an award of attorneys' fees in the event of a settlement, a MOU.

However, the Supreme Court held in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) that to recover costs such as attorney fees, a plaintiff must be a prevailing party. In this context a party may be considered to have prevailed if they succeeded on any significant issue in litigation which achieves some benefit the party sought in bringing the suit. In this case the MOU was worth $190,000.00 to Ms. Harris, and therefore she was a prevailing party within the definition of Hensley, supra.

B. Respondents next allege that Ms. Harris' attorneys are not entitled to an award of excessive attorney fees and costs.

The TVA's position is correct in that Ms. Harris' counsel are entitled to reasonable attorney fees and costs. I also agree that the courts have repeatedly held that whenever more than one attorney is involved in a matter, a fee request must be carefully scrutinized to eliminate hours involving duplication of efforts. The courts have held that the burden of establishing that there has been no duplication is on the attorneys seeking fees. See Fuddruckers, Inc. v. Doc's B. R. Others, Inc., 826 F. 2d 837 (9th Cir. 1987); Furtado v. Bishop, 625 F.2d 915, 922 (1st Cir. 1980).

There is much discussion as to the hourly rate that should be paid and what city should be utilized to determine the customary cost for legal services. It is obvious that Bernabei and Katz is a Washington law firm. Ms. Harris credibly states in her affidavit that she could not obtain local counsel, and retained Bernabei & Katz. However, both the TVA and this law firm are mistaken as to the determination of the reasonable amount for a hour of legal services. The fact is that the Laffey Matrix¹ , College or Law School of Graduation, the experience obtained is meaningless relative to the fee sought. The quality

[Page 3]

of legal services rendered for the case at bar is most important. The duration of the services, and the delay in achieving payment is another factor. In deciding the rate of hourly charge I have considered the area in which the attorneys practice. I have also considered their courtroom skills, demeanor, and the result obtained. I have also considered the quality of Respondent's counsel, the resources that they had, and the burden they placed upon Ms. Harris to obtain a favorable result. The mediation in this case took more than three days. The value of the settlement package required substantial economic information. Counsels for the parties demonstrated excellent legal skills, and negotiating ability.

Barnabei and Katz, Esquire, seek approximately $12,627.00 for the preparation of the fee petition, and petitions for costs ² .

In the instant case, Ms. Bernabei and Michael C. Subit, Esquire, performed the trial services in this action, with Ms. Bernabei being the lead counsel. Mr. Subit has alleged substantially more billing hours. Ms. Bernabei is seeking 315.80 hours of legal services. A careful review of the hours alleged leads me to conclude that Ms. Bernabei has accounted for the hours spent on the case in a reasonable manner. Further, I credit her statement that, "I have reduced the amount of time for which an award of fees is sought by about 10 hours". I find that the billing time of 315.80 hour of legal services was reasonable and necessary for the successful litigation of this matter. I find that Bernabei and Katz, Esquire, are entitled to receive an appropriate fee for a Washington, District of Columbia, law firm. Ms. Harris had difficulty obtaining local counsel and was well served by this firm. Review of Ms. Bernabei's services and her credentials leads me to find that she provided 315.80 hours of reasonable and necessary legal services at a reasonable billing rate of $300.00 for a sum of $94,740.00 for her representation of Ms. Harris.

Mr. Subit also submitted an application for 464.20 hours of legal services. On first view of this application, it would appear that Mr. Subit performed a major proportion of the pre-trial services in this matter. Further, Ms. Bernabei and Mr. Subit have many hours of consultation. However, considering the quality of attorneys that represented TVA and the manner in which they litigated this case, it is easy to see the resulting legal services necessary for the Complainant to obtain a successful result. Accordingly, I find the 464.20 hours of legal services sought by Mr. Subit to be reasonable and necessary to prepare for the trial in this matter, and to achieve a successful result. I find Mr. Subit's billing rate of $225.00 to be reasonable and award the firm $104,445.00 for his legal services.

Debra S. Katz, Esquire, a partner in the firm of Bernabei and Katz, Esquire, is seeking compensation for 49.81 hours of legal services. A review of the services alleged reveals that they are found to be reasonable considering the successful result achieved. Accordingly, I allow Ms. Katz the 49.81 hours of legal services at a reasonable rate of $275.00, a total of $13,697.75. Ms. Katz also seeks compensation for the 5.6 hours of legal services performed by Dana Sullivan, Esquire, which are billed at $185.00. I will allow the 5.6 hours at a rate of $150.00 per hour, based

[Page 4]

upon the fact that the alleged legal services included approximately 1.30 hours of substantial legal service. Accordingly, I allow the firm $840.00 for this service.

Next, Ms. Bernabei seeks 19.95 hours for services rendered by David Marshall, Esquire, relative to the successful conclusion of this matter. Mr. Marshall did not appear before me. I must consider Prandini v. National Tea Co., 557 F.2d 1015 (1997). In that case the Circuit Court discussed law firm economics. The law firm is required to use services that are economically justifiable. In this case two litigation members of this firm billed 780.00 hours. There was little economic justification to have another attorney, Mr. Marshall, literally learn the case spending 19.95 hours. There were two high quality attorneys familiar with the case who had spent a substantial amount of time on the claim. The 19.95 hours appear to be inflated for a task that could have been performed in substantially less time by either of the trial attorneys who were familiar with the case. However, Mr. Marshall appears to have performed some substantial legal service. I will allow 10 hours of legal services at a billable rate of $200.00, for a total of $2,000.00.

Ms Bernabei next seeks to charge for legal services performed by Stephen C. Valerio, Esquire, an attorney associated with the firm. Mr. Valerio did not appear before me. She is seeking 21.70 hours for his services at $150.00 per hour. A review of this claim reveals that the hours appear to be inflated for a task that could have been performed in substantially less time by either of the trial attorneys, who were familiar with the litigation. After review of the alleged services, I will allow $100.00 per hour for these services for a total of $2,170.00.

Ms. Bernabei next seeks to charge for legal services performed by Ms. Kate Greenwood, a third year law student at Georgetown Law School. Ms. Greenwood did not appear before me. Ms. Bernabei is seeking 96 hours for her services, which include fee petition services. A review of this claim reveals that the hours appear to be inflated since "Ms. Bernabei supervised her work on this case". Obviously, Ms. Bernabei billed for this service and I find it is duplicative. Further, I can find no economic justification for closely monitored services rendered by a third year law student that could have been performed by using the attorney time computer program. This time was billed at $85.00 a hour, a teaching tool for Ms. Greenwood which TVA should not be required to pay for. I decline to award a fee for this service.

Ms. Bernabei next seeks to charge for legal services performed by Ms. Valerie Villaraza, a third year law student at UCLA. Ms. Villaraza did not appear before me. Ms. Bernabei is seeking 26 hours for her services. A review of this claim reveals that the hours appear to be inflated since "Ms. Bernabei supervised her work on this case". Obviously, Ms. Bernabei also billed for this service at her substantial rate. I find it is duplicative and further I can find no economic justification for closely monitored services rendered by a third year law student that could have been performed in substantially less time by either of the trial attorneys, who were familiar with the litigation. This time was billed at $85.00 a hour, a teaching tool for Ms. Villaraza which TVA should not be required to pay for. I decline to award a fee for this service.

[Page 5]

Next, Ms. Barnabei seeks to obtain legal fees for services rendered by David MacMichael, a paralegal with five years of service for this firm. She is seeking 42 hours of legal services billed at $85.00 per hour. However, a non-attorney preparing deposition digests of four individuals does not appear to be a sufficient legal justification for this charge. Accordingly, I decline to award a fee for this service.

Based upon the above findings, I find that of the hours of legal services claimed, I allow the following:

       Name                   Hours   Rate     Total

       Lynne Bernabei, Esq.   315.80  $300.00  $ 94,700.00
       Debra Katz, Esq.        49.81  $275.00  $ 13,697.00
       Michael C. Subit, Esq. 464.20  $225.00  $104,445.00
       David Marshall, Esq.    10.00  $200.00  $  2,000.00
       Stephen Valerio         21.70  $100.00  $  2,170.00
       Dana Sullivan, Esq.      5.60  $150.00  $    840.00

       Total Allowable Billing           $217,852.00

Additionally, Claimant's counsel sought expenses in the sum of $26,787.38. A review of the costs alleged indicates that Ms. Harris' attorneys spent time at Ms. Harris' home while in Knoxville, and Ms. Harris stayed at the homes of friends while in Washington. Ms. Harris also prepared meals to contain costs. I find that the costs sought by Bernabei and Katz, Esquires in the sum of $26,787.38 to be reasonable and necessary and award this firm the sum of $26,787.38 for expenses.

Ms. Harris also sought expenses in the sum of $12,229.16. After review of her expense request for the years 1996, at $371.27; 1997 at $4,419.40, and 1998 at $7,438.49, I find the expenses sought to be reasonable and award Ms. Harris the sum of $12,229.16.

Considering all of the factors set out in 20 C.F.R. §702.132, I find that a reasonable fee for the hours of legal service is $217,852.00 considering the complexity of the legal issues involved, the quality of the representation and the results obtained.

I also find that the expenses sought in the sum of $39,006.43 were reasonable and necessary for the successful prosecution of the claim, pursuant to 20 C.F.R. §702.135.

[Page 6]

ORDER

IT IS HEREBY ORDERED that the Tennessee Valley Authority shall pay to Claimant's attorneys Bernabei and Katz, the sum of $217,852.00 for attorney's fees.

IT IS FURTHER ORDERED that Claimant's attorneys, Bernabei and Katz, be reimbursed by the Tennessee Valley Authority for expenses incurred in the successful prosecution of this claim in the amount of $26,787.38 for a sum total of fees and expenses of $244,639.38.

IT IS FURTHER ORDERED that the Tennessee Valley Authority shall reimburse Ms. Harris for expenses incurred in the successful prosecution of this claim in the amount of $12,229.16.

PAUL H. TEITLER
Administrative Law Judge

Dated: October 13,1998
PHT

[ENDNOTES]

¹ It would appear that the so called Laffey Matrix, used in the District of Columbia, is another example of an attempt to regulate legal fees, set minimum fees. The Supreme Court of the United States was not impressed in the past by the attempt of Bar Associations to set Minimum Fee Schedules.

² This allegation leads this judge to wonder whether this firm thinks judges were created in a vacuum, with no experience in computer generated time programs or with little or no experience in preparing fee applications. It would be preferable to pay a substantial rate to attorneys and receive a fee petition with appropriate hours. The Administrative Review Board in Smith v. Esicorp et al., 93 ERA 16 (Dec. August 27, 1998) held that a 15% reduction of billable hour by an Administrative Law Judge was reasonable. If attorneys would resist the temptation to have billing conferences and just use the actual time slips the public and Bar would be better served, and $12,627.00 billing charges could be avoided.