While we are also unwilling to accept Piette's estimate of those future expenses, we do recognize that some of those out-of-pocket expenses may have accrued since issuance of the R. D. & O. Accordingly, Jackson may request modification of this Final Decision and Order to establish actual indirect health care plan losses that he experienced between June 25, 2003 and the issuance of this Final Decision and Order.
E. Emotional distress.
An employer who violates the STAA may be held liable to the employee for compensatory damages for mental or emotional distress. 49 U.S.C.A § 31105(b)(3)(A)(iii). See also Moyer v. Yellow Freight Sys., Inc. , 89-STA-7, slip op. at 23-24 n. 16 (Sec'y Aug. 21, 1995), rev'd on other grounds sub nom. Yellow Freight Sys., Inc. v. Reich , 103 F.3d 132 (6th Cir. 1996) (table). The ALJ found that Jackson was entitled to $4,000.00 for emotional distress, based upon his testimony and that of his wife. R. D. & O. at 10-11. We note that, although the testimony was unsupported by professional counseling or medical evidence, it was also unrefuted. We accept the ALJ's award under the substantial evidence test.
F. Interest
Jackson is entitled to pre-judgment interest on the award of damages, calculated in accordance with the IRS penalty rate at 26 U.S.C.A. § 6621 (West 2002). See, e.g., Drew v. Alpine, Inc., ARB No. 02-044, 02-079, ALJ No. 2001-STA-47, slip op. at 4 (ARB June 30, 2003); Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5, slip op. at 17-18 (ARB Mar. 29, 2000).
IV. Attorney's Fees and Costs
Where, as here, a STAA complainant has prevailed on the merits, he or she may be reimbursed for litigation costs, including attorney's fees. 49 U.S.C.A. § 31105(b)(3)(B) provides in part that "the Secretary [of Labor] may assess against the person against whom the order is issued the costs (including attorney's fees) reasonably incurred by the complainant in bringing the complaint."
Jackson requested $40,794.01 in attorney's fees and costs. See Complainant Jackson's Petition for Attorneys' Fees and Litigation Costs at 1. The ALJ reviewed Jackson's petition and concluded that the fee requested for Jackson's senior attorney, Richard Johnson, was unreasonable: "I concur with Respondent that 178.5 hours and involvement of two attorneys on a case of this nature is excessive." S. D. & O. at 1. Accordingly, he disallowed Johnson's fee in its entirety. Id. at 2. For the reasons that follow, we hold this was error.
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A. Legal standards
In reviewing attorney's fee awards, the ARB follows the fee-shifting precedents of the Supreme Court and other federal courts. See, e.g., Scott v. Roadway Express, ARB No. 01-065, ALJ No. 98-STA-8, slip op. at 5 (ARB May 29, 2003); Gutierrez v. Regents of the Univ. of Cal. , ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 12 (ARB Nov. 13, 2002).
Once it is established that the plaintiff has prevailed, Hensley v. Eckerhart , 461 U.S. 424 (1983) provides the framework for deciding the merits of fee petitions. The Hensley Court said, "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. This lodestar "calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Id. The district court may reduce the award for inadequately documented hours, or for hours that were not "reasonably expended" due to overstaffing or inexperience. As in private practice, "[h]ours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority." 461 U.S. at 434 (emphasis in original).
The petitioner bears the burden of proof that claimed hours of compensation are adequately demonstrated and reasonably expended. Cf. Webb v. Dyer County Bd. of Educ. , 471 U.S. 234, 242 (1985); LaPrade v. Kidder Peabody & Co., Inc. , 146 F.3d 899 (D.C. Cir. 1998) (under vexatious litigation statute, 28 U.S.C.A. § 1927 (West 1994); Hotel & Restaurant Employees Local 25 v. JPR, Inc ., 136 F.3d 794 (D.C. Cir. 1998) (ERISA, 29 U.S.C.A. § 1132(g)(2) (West 1999). Under DiFilippo v. Morizio , 759 F.2d 231, 235-36 (2d Cir. 1985), the "reasonableness of the time expended must . . . be judged by standards of the private bar" so that "hours claimed are to be examined in detail with a view to the . . . value of the work product to the client in light of the standards of the private bar." Faced with an unreasonable number of hours, the court can reduce the lodestar fee by a reasonable amount or percentage, without performing an item-by-item accounting. Freiler v. Tangipahoa Parish Bd. of Educ. , 185 F.3d 337, 348 (5th Cir. 1999) (First Amendment); Case v. Unified Sch. Dist. No. 233, Johnson County, Kan. , 157 F.3d 1243, 1250-51 (10th Cir. 1998) (decision to remove book from school).
Courts will permit a partner/associate, or first/second chair staffing, especially at trial. Delph v. Dr. Pepper Bottling Co ., 130 F.3d 349, 358-59 (8th Cir. 1997) (Title VII). However, they will exclude time that is duplicative, e.g., where two or more attorneys unnecessarily attend hearings and depositions, and perform the same tasks. Cf. Lockard v. Pizza Hut, Inc. , 162 F.3d 1062, 1077 (10th Cir. 1998) (Title VII; stating rule, but allowing fees in this instance); Hudson v. Reno , 130 F.3d 1193, 1209 (6th Cir. 1997) (even though defense had four lawyers, court found that plaintiff's lawyer's time with one assistant was excessive); Shrader v. OMC Aluminum Boat Group., Inc ., 128 F.3d 1218, 1221-22 (8th Cir. 1997) (Title VII; disallowing half hours of second chair); Luciano v. Olsten Corp ., 109 F.3d 111 (2d Cir. 1997) (ADA; excluding additional trial attorney). Also excluded is time attributed to office conferences, supervision and training, and review and revision, since such time is not normally billable to private clients.
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The other element of the lodestar calculation (besides time reasonably expended) is the reasonableness of plaintiff's attorney's hourly rates. In Blum v. Stenson , 465 U.S. 886 (1984), the Court held that fees under 42 U.S.C.A. § 1988 (West 2003) were to be "calculated according to the prevailing market rates in the relevant community." 465 U.S. at 895. It is the petitioners' burden "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 reasonably comparable skill, experience, and reputation." Id. at 895 n.11. See also Eddleman v. Switchcraft, Inc ., 965 F.2d 422, 424 (7th Cir. 1992) (market rate is rate that lawyers of similar ability and experience in community normally charge their paying clients for type of work in question). In deciding the "prevailing market rates in the relevant community," the court may consider, among other things, rates plaintiff's attorney charges paying clients, Connolly v. National Sch. Bus. Serv., Inc ., 177 F.3d 593, 596 (7th Cir. 1999) (Title VII); Spegon v. Catholic Bishop of Chicago , 175 F.3d 544, 555 (7th Cir. 1999) (FLSA); Cooper v. Casey , 97 F.3d 914, 920-21 (7th Cir. 1996) (§ 1983 inmate), and rates other lawyers in the community charge for similar work. Spegon , 175 F.3d at 555; People Who Care v. Rockford Bd. of Educ. , 90 F.3d 1307, 1312 (7th Cir. 1996) (school desegregation; billing rates of other attorneys in same firm not irrelevant).
Finally, the party seeking a fee award must submit evidence documenting the hours worked and the rates claimed. As we have said, "[A] complainant's attorney fee petition must include adequate evidence concerning a reasonable hourly fee for the type of work the attorney performed and consistent [with] practice in the local geographic area, as well as records identifying the date, time, and duration necessary to accomplish each specific activity, and all claimed costs." Gutierrez , slip op. at 13 (internal quotations and citations omitted).
B. Application
We begin with the reasonableness of the Complainant's counsel's hourly rates, because that has bearing on how we view the number of hours expended. Attorney Richard Johnson petitioned for approval of an hourly rate of $325 for his work. He submitted declarations from himself and two other lawyers, stating that he "should" receive $325 per hour based upon his relevant experience. Exhibits to Complainant Jackson's Petition for Attorneys' Fees and Litigation Expenses (Fee Petition), Exhibits L, P, Q. These declarations fall somewhat short of evidencing a market rate for labor and employment law or comparable work in North Florida. While Attorney Johnson's work on this case was excellent and he is highly experienced in his field, the best evidence before us of the reasonable value of his services is the decision of the District Court for the Northern District of Florida, furnished as Fee Petition Exhibit D, Creel et al. v. Washington County Bd. Of Cty. Comm'rs, Case No. 5:99cv296-SPM (Nov. 6, 2002), awarding him fees at the rate of $300 an hour. Consequently, that is the rate we award.
With regard to the appropriate hourly rate for Attorney Lisa Lambert, we have considered the Fee Petition, Exhibits L, M, P, Q, R, which note that $175 per hour is at the high end of the market for someone of her two years' experience, the court's discussion and award in Creel, and the perception of the ALJ in this case that Attorney Lambert was experienced enough to have handled this matter, including the hearing on the merits, without assistance; indeed, that is the basis upon which the ALJ denied Attorney Johnson's fees. S. D. & O. at 2. Accordingly, we determine that $175 is a reasonable hourly rate, given her ability and experience. However, as we observe below, because we have accepted a senior associate's hourly rate, downward adjustments must be made for time that shows review and revision of her work, supervision and training, duplication of effort, and legal research on topics in her area of presumed expertise.
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We turn to the other element of the lodestar calculus, the number of hours reasonably expended. Based on the precedents we have cited, there is no bar to several lawyers being compensated in the same case. Properly managed, a team approach can result in economic efficiencies; a client has the benefit of a senior lawyer overseeing the case, taking important depositions and trying the case, while an associate at a more economical hourly rate handles paper discovery, motions and brief writing. In this case, Attorney Lambert participated both as an associate and as trial co-counsel. Attorney Johnson did the opening statement and the examination of the Complainant's damages expert, Piette. Attorney Lambert handled the direct examination of the Complainant and his wife, and the cross-examination of Lecial Hollis and Sherry Guffey. The time for both lawyers was reasonably expended.
However, some of Attorney Johnson's time was spent providing in-house supervision and training of Attorney Lambert that is not properly awardable against Butler. For example, Attorney Johnson's time entries show meetings with Attorney Lambert and reviews of her work on: 5/21/02; 5/22/02; 6/20/02; 9/19/02; 4/22/03; 4/25/03; 5/2/03; 5/3/03; 5/14/03; and 7/11/03. See Fee Petition, Exhibit B. Those entries represent 5.6 hours of a total of 39.10 hours, or about 15 per cent of Attorney Johnson's time. Because the entries occasionally reflect more than one function (e.g., preparation and a meeting on 5/2/03), rather than trying to perform surgical excisions, we make a 15 per cent reduction in his total time, to 33.2 hours at a rate of $300, for a total award for Attorney Johnson's fees of $9,960.00.
Attorney Lambert's time sheets show a telephone call with Jackson about an unrelated automobile accident (11/4/02); legal research of about 20.8 hours on STAA, but also procedural matters and fee awards (6/13/02; 2/25/03; 2/27/03; 3/18/03; 4/17/03; 4/25/03; 5/27/03; 5/28/03; 6/10/03; 7/7/03; 7/12/03); routine administrative tasks (3/20/03; 5/3/03); and numerous entries that include meetings with Attorney Johnson or submission of her work for his review that we regard as not chargeable to the losing party (e.g., 5/28/02; 6/9/02; 6/24/02; 3/9/03; 4/25/03/; 4/30/03; 5/2/03; 5/4/03; 5/5/03; 5/7/03; 6/12/03; 7/7/03; 7/10/03; 7/11/03). See Fee Petition, Exhibit C. Because most of these entries are batched with other, properly chargeable work, we cannot simply delete them. Instead we make a downward adjustment of Attorney Lambert's time of 15 per cent, from 139.40 hours to 118.5 hours at $175 per hour, for a total award for Attorney Lambert's fees of $20,737.50.
Finally, we consider costs. We agree with the ALJ that in-house reproduction, postage and express package costs are generally considered part of attorney overhead and are built into the hourly rates. See S. D. & O. at 2. See also Eash v. Roadway Express, ARB No. 02-008, ALJ No. 2000-STA-47, slip op. at 8-9 (ARB June 27, 2003). We affirm the award of $2,510.00 for expert fees and $591.61 for court reporter fees. We also grant the request for hearing exhibit enlargements in the amount of $37.63 and outside copying charges of $165.64.
The total award for attorney's fees and costs is $34,002.38.
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CONCLUSION AND ORDER
1. Butler shall immediately reinstate Jackson to his previous position as a truck driver under the same terms, conditions and privileges of employment, with no loss of seniority or benefits.
2. Butler shall expunge from Jackson's personnel records any references to his termination of employment on November 16, 2001.
3. Butler shall pay Jackson $24,318.00 in back pay.
4. Butler shall pay Jackson $644.00 for losses under his 401k plan.
5. Butler shall pay Jackson $10,864.00 for the actual and direct expenses resulting from his loss of Butler's health plan. This amount will continue to accrue at the rate of $45 per week until Jackson is reinstated. Butler shall also pay Jackson $3,277.00 for his out-of-pocket indirect losses. In addition, Johnson may request modification of this Final Decision and Order to establish actual indirect health care plan losses that accrued between June 25, 2003, and the issuance of this Final Decision and Order.
6. Butler shall pay Jackson $4,000.00 in compensatory damages for emotional distress.
7. The above sums are subject to pre-judgment interest in accordance with 26 U.S.C.A. § 6621.
8. Butler shall pay Jackson's attorneys $34,002.38 in fees and costs. Jackson's attorneys shall have fifteen days from receipt of this Order in which to file a fully supported attorney's fee petition, with simultaneous service on opposing counsel. Thereafter, Butler shall have ten days from receipt of the fee petition to file a response.
SO ORDERED .
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 C.F.R. § 395.3 (2001) (version then in effect). Prior to January 4, 2004, the hours of service rules allowed drivers to drive for ten hours followed by an eight-hour break. The current rules allow drivers to drive up to eleven hours followed by a ten-hour break. Notice of final rule, 49 C.F.R. Parts 385, 390, 395, 68 Fed. Reg. 22456, 22,503 (Apr. 28, 2003). But see Public Citizen v. Federal Motor Carrier Safety Admin. , 374 F.3d 1209 (D.C. Cir. 2004) (vacating 49 C.F.R. § 395.3 (2003) and related hours of service rules as invalid and remanding to agency for further action).
2 This is a wireless unit that drivers kept onboard to facilitate communication with the terminal. Tr. 55.
3 The Complainant's unrefuted evidence was that he would have to finish his mandatory eight-hour break, drive for no more than ten hours, and take another mandatory eight-hour break before completing the trip, arriving no earlier than 4:00 p.m. the following day. See Brief of Complaint, at 11-12, and citations to the record therein.
4 On the previous day Butler's counsel had sent, by facsimile, an informal request for a continuance.
5 This regulation provides, "The [Administrative Law Judge's recommended] decision shall be forwarded immediately together with the record to the Secretary for review by the Secretary or his or her designee."
6 Jackson also presented testimony from his wife, Carol Jackson, who testified to his mental state, and economist Dr. Michael J. Piette, who provided an analysis of his economic losses. Tr. 115-130, 131-144, CX 50.
7 The R. D. & O. lists the full amount as $645.00. This is a typographical error.
8 In his discussion of the out-of-pocket expenses the ALJ stated that he was unwilling to predict Jackson's "future direct expenses," R. D. & O. at 10, which suggests that he was referring back to his discussion regarding the actual and direct expenses from loss of the health plan. This appears to be a typographical error, for in the previous paragraph he referred to these out-of-pocket expenses as "indirect health plan losses." Id.