Opinion
C.A. PC-2012-5791
07-21-2016
LEO BLAIS, RPH v. RHODE ISLAND DEPARTMENT OF HEALTH and MICHAEL FINE, M.D. In his capacity as the Director of Health of the Rhode Island Department of Health
For Plaintiff: Michael A. Kelly, Esq. For Defendant: Michael W. Field, Esq.; Joseph K. Alston, Esq.; Mariana E. Ormonde, Esq.; Julie Ann Sacks, Esq.; Adam Sholes, Esq.
Providence County Superior Court
For Plaintiff: Michael A. Kelly, Esq.
For Defendant: Michael W. Field, Esq.; Joseph K. Alston, Esq.; Mariana E. Ormonde, Esq.; Julie Ann Sacks, Esq.; Adam Sholes, Esq.
DECISION
PROCACCINI, J.
This matter came to be heard on June 29, 2016 before the Superior Court, Procaccini, J., on Appellant Leo Blais, R.Ph.'s (Appellant or Mr. Blais) Motion for Litigation Expenses under the Equal Access to Justice for Small Businesses and Individuals Act (EAJA), G.L. 1956 §§ 42-92-1 et seq. Appellant's motion comes before this Court following his successful appeal to the Rhode Island Superior Court from a decision of the Director of the Rhode Island Department of Health (the Department), Michael Fine, M.D. (Director Fine), (collectively, Appellees) that permanently revoked Appellant's license to practice pharmacy in the State of Rhode Island (Final Decision). For the reasons set forth in this Decision, this Court finds that Appellant is legally entitled to recover reasonable litigation expenses arising out of and related to Appellant's appeal of Director Fine's Final Decision.
I Facts and Travel
The facts underlying this case are essentially undisputed and set out in further detail in Blais v. R.I. Dep't of Health, No. PC 2012-5791, 2014 WL 7368789 (R.I. Super. Dec. 22, 2014) (Nugent, J.). On March 14, 2012, a mother of an infant child sought to file a complaint against Apothecare Compounding Solutions (Apothecare), a compounding pharmaceutical shop, with the State Board of Pharmacy (the Board). Id. at *1. The mother had filled a prescription for her infant at Apothecare for Omeprazole, a stomach medication for acid reflux. Id. After the infant became lethargic, the mother took her child to the hospital and was informed that the Omeprazole contained morphine. Id. Morphine does not belong in Omeprazole. Id. The Office of Compliance and Regulatory for the Board sent the prescribed Omeprazole to the State Toxicology Lab and confirmed that the drug contained morphine. Id.
Omeprazole is the generic brand of Prilosec.
A full investigation was conducted of Apothecare, including speaking to the pharmacist in charge, Mr. Blais, and inspecting the physical location of the pharmacy. Id. at *1-2. Mr. Blais has been a pharmacist for approximately thirty-five years and was President of the Rhode Island Pharmacist Association. Id. at *1. He additionally served as a member of the Board for twelve years. Id. Upon investigation of Apothecare, Dr. Patrick Kelly (Dr. Kelly), Chief of Compliance and Regulatory, found the compounding area to be cluttered and disorganized. Id. at *1-2. Dr. Kelly also noted that many drugs were stored on the floor, without any sign of markers separating one drug from another. Id. at *2. Finally, the investigation revealed that another child had received and ingested the adulterated Omeprazole. Id. Mr. Blais admitted that the adulterated drug was a result of the disordered state of the pharmacy. Id.
Mr. Blais was also disciplined for a different dispensing error in 1999 when he filled a prescription for Haldol, an anti-psychotic, with 5 mg tablets instead of .5 mg. Blais, 2014 WL 7368789, at *3. After this error, Mr. Blais implemented procedures to safeguard against the error's reoccurrence. Id.
On March 23, 2012, Director Fine summarily suspended Mr. Blais' license in accordance with § 42-35-14(c). Id. at *3. Mr. Blais and the Board attempted to enter into a Consent Order, agreeing to a two-year suspension, with the commencement of the first year dating back to the issuance of the summary suspension. Id. However, Director Fine rejected this Consent Order. Id. The Board ultimately delegated its authority to hear Mr. Blais' appeal to a hearing officer, Catherine Warren (Hearing Officer Warren). Id. After a multi-day hearing, Hearing Officer Warren issued a twenty-nine page decision, finding: (1) the drug labeled as Omeprazole inappropriately contained morphine; (2) the pharmacy was kept in an unsanitary and disorderly condition; and (3) drugs without expiration dates were not properly labeled or segregated. Hearing Officer Warren's Decision 15-18; see also Blais, 2014 WL 7368789, at *3-4. Based upon her factual findings, Hearing Officer Warren recommended a thirty-month license suspension (fifteen months active, with the remainder stayed), two-year probationary period, and continuing education classes. Hearing Officer Warren's Decision 26-27.
Director Fine accepted Hearing Officer Warren's findings of fact but found that Hearing Officer Warren failed to adequately weigh "the potential danger morphine poses to a baby or infant child." Final Decision 4; see also Blais, 2014 WL 7368789, at *4. Director Fine also found Mr. Blais' newly installed safety measures unpersuasive, as Mr. Blais had numerous chances to improve the organization of his pharmacy but failed to do so. Final Decision 4. As a result, Director Fine permanently revoked Mr. Blais' license to practice pharmacy. Id. This was the first and only time a pharmacist's license was permanently revoked by the Department for a dispensing error. Blais, 2014 WL 7368789, at *4.
Mr. Blais timely appealed Director Fine's Final Decision to revoke his license on July 16, 2013. Id. Mr. Blais argued that Director Fine's Final Decision failed to give adequate deference to Hearing Officer Warren's findings and imposed sanctions in excess of Director Fine's statutory authority. Id. The matter was heard on November 25, 2014 before Judge Stephen Nugent. Id. In a carefully crafted decision, the Court held that "Director Fine acted in excess of his statutory authority and abused his discretion in revoking Mr. Blais' license to practice pharmacy." Id. at *7. The Court reasoned that Director Fine failed to give proper deference to Hearing Officer Warren's findings of fact and that the record did not support a deviation from such findings. Id. at *5-7. The Court noted that Hearing Officer Warren did in fact consider the dangers of a dispensing error, as well as assess the credibility of the witnesses and Mr. Blais' competency to safely practice. Id. at *6-7. The Court also recognized that pharmacists cannot be held to a standard of perfection, and, at least since 1980, the Board has never suspended a pharmacist for a dispensing error. Id. at *7. Finally, the Court acknowledged Mr. Blais' long-standing credentials and his willingness to adopt remedial measures and admit his errors. Id. As a result, the Court found that "Director Fine's 'mere philosophical differences' as to the proper discipline in the wake of such an incident served as the fulcrum upon which he uprooted Hearing Officer Warren's well-grounded sanction" in direct contradiction of administrative law. Id. at *6. See generally Envtl. Scientific Corp. v. Durfee, 621 A.2d 200 (R.I. 1993). The Court ultimately modified the agency decision to impose Hearing Officer Warren's recommended suspension and probation. Blais, 2014 WL 7368789, at *8.
Shortly after Judge Nugent's decision was rendered, Appellant moved for litigation expenses under the EAJA. However, the present motion was set aside for quite some time as Appellee's Petition for a Writ of Certiorari (Writ) to the Supreme Court was pending. On June 18, 2015, the Supreme Court denied Appellee's Amended Petition for a Writ. See Appellant's Mem., Ex. 8. The parties have recently completed additional discovery. On May 3, 2016, Appellant again moved for litigation expenses under the EAJA. Appellant seeks a total of $63,323.48 in litigation expenses, $55,056.25 in attorneys' fees and $8,267.23 in expert and stenographer fees. See Appellant's Mem., Ex. 3. These litigation expenses were incurred in connection with Appellant's administrative proceeding, administrative appeal, and defense against Appellee's Petition for a Writ. See Appellant's Mem. 14.
II Analysis
A Litigation Expenses Under the EAJA
The EAJA "'was propounded to mitigate the burden placed upon individuals and small businesses by the arbitrary and capricious decisions of administrative agencies made during adjudicatory proceedings.'" Tarbox v. Zoning Bd. of Review of Jamestown, Nos. 2014-188-Appeal, 2014-189-Appeal, 2016 WL 984044, at *6 (R.I. Mar. 15, 2016) (quoting Krikorian, 606 A.2d at 673). The act encourages individuals and small business to challenge agency actions that are not substantially justified. See id. Section 42-92-3(a) outlines a party's application for litigation expenses under the EAJA:
The EAJA was modeled on the federal Equal Access to Justice Act, 28 U.S.C. § 2412. See Krikorian v. R.I. Dep't of Human Servs., 606 A.2d 671, 673 (R.I. 1992). As a result, our Supreme Court has held that courts should look to federal case law when interpreting the EAJA. See id. at 674.
"Whenever the agency conducts an adjudicatory proceeding subject to this chapter, the adjudicative officer shall award to a prevailing party reasonable litigation expenses incurred by the party in connection with that proceeding. The adjudicative officer will not award fees or expenses if he or she finds that the agency was substantially justified in actions leading to the proceedings and in the proceeding itself."
Therefore, a prevailing party in an agency action may be awarded reasonable litigation expenses if the agency was without substantial justification.
Appellee does not contest whether Appellant was a prevailing party in an adjudicatory proceeding conducted by an agency under the EAJA. Appellee also does not argue that Appellant's litigation expenses are unreasonable. Rather, Appellee solely focuses on the fact that the agency-that being the Department, the Board, and Director Fine-was substantially justified in its position and proceedings. As a result, the Court directs its attention solely to this issue.
"Substantial justification" is defined in § 42-92-2(7): "the initial position of the agency, as well as the agency's position in the proceedings, has a reasonable basis in law and fact." The agency "must show 'not merely that its position was marginally reasonable; its position must be clearly reasonable, well founded in law and fact, solid though not necessarily correct.'" Krikorian, 606 A.2d at 675 (quoting Taft v. Pare, 536 A.2d 888, 893 (R.I. 1988)). However, "[s]ince fees are awarded only to a prevailing party, it follows that the fact that the government lost does not create a presumption that its position was not substantially justified." U.S. v. Yoffe, 775 F.2d 447, 450 (1st Cir. 1985).
Not surprisingly, Appellant focuses his argument predominately on three actions taken by Director Fine: (1) the issuance of the summary suspension; (2) the rejection of the proposed Consent Order; and (3) the permanent revocation of Mr. Blais' license. Appellee, on the other hand, places emphasis on the administrative proceeding as a whole. More specifically, Appellee explains to this Court that it had a statutory obligation to investigate the complaint made against Mr. Blais, and did just that. Despite Appellant's selective focal points, Appellant moves for litigation expenses incurred throughout the entire administrative proceeding and agency appeal.
Our Supreme Court has yet to consider whether an unjustified stage of a multi-part administrative proceeding can render the entire proceeding substantially unjustified. Section 42-93-3(a) states that expenses incurred in connection with the adjudicatory proceeding may be awarded to the prevailing party. Section 42-9-2(2) defines "adjudicatory proceeding" as "any proceeding conducted by or on behalf of the state administratively or quasi-judicially which may result in . . . the denial, suspension, or revocation of a license or permit . . ." Nevertheless, this definition does not lend much assistance in determining whether the adjudicatory proceeding can be divided for purposes of awarding litigation expenses.
Federal Circuit Courts have indicated that the agency must be substantially justified at each stage of the proceeding but that the court should still "treat[] a case as an inclusive whole, rather than as atomized line items." Al-Harbi v. INS, 284 F.3d 1080, 1084-95 (9th Cir. 2002) (internal quotation marks omitted). That being said, other circuit courts have refused to award fees for the entire administrative proceedings when some portions of such were substantially justified. See Goldhaber v. Foley, 698 F.2d 193, 197-98 (3d Cir. 1983); see also Int'l Air Response, Inc. v. U.S., 80 Fed.Cl. 460, 466 (2008). In Goldhaber, 698 F.2d at 197-98, the Third Circuit found that "any decision requiring that all litigation expenses be borne by the prevailing party, even if the United States has prevailed in one aspect of the action, would undermine a central purpose of the Act." The Court went on to eloquently state:
"Conversely, it would be anomalous to charge the entire expense of litigation to the government in such a circumstance. Were we to do so, the government would bear the expense of defending even its reasonable positions. Because the Equal Access to Justice Act contemplates deterring only unreasonable government positions, this too would contravene the purposes of the Act. The only solution consonant with the legislative intent as we discern it, is to charge the United States with that portion of the expenses attributable to its unjustifiable positions." Id.
The Court also compared this interpretation to other fee-shifting statues. Id. at 197-98. This Court agrees with the Third Circuit's analysis and additionally finds support for splitting the adjudicatory proceeding in § 42-92-3(a) itself. Section 42-92-3(a) states in relevant part: "The adjudicative officer may, at his or her discretion, deny fees or expenses if special circumstances make an award unjust." Consequently, this Court finds that the Court retains discretion in awarding litigation expenses under the EAJA.
This Court finds that it would be unjust to award Appellant litigation expenses for the administrative proceedings that occurred prior to Appellant's agency appeal. First, Appellant's agency appeal focused solely on Director Fine's ultimate sanction. Second, Judge Nugent's decision reinstated Hearing Officer Warren's recommended sanction. While it was necessary to discuss findings of fact made by Hearing Officer Warren throughout the agency appeal, neither Appellant's argument nor the actual decision affected those findings.
Third, and most importantly, it is almost without argument that the Department was substantially justified in their position and proceedings up until Director Fine's Final Decision were released. The Department received a complaint from the mother of an infant that her child was hospitalized after ingesting an adulterated prescription. The Board is charged with regulating the practice of pharmacy and confirming that pharmacists are competent to practice. See § 5-19.1-5. Initial investigation revealed that the pharmacy was disheveled and that drugs were prepared without expiration dates. The investigation also revealed not only that Mr. Blais erroneously dispensed morphine into the infant's prescription, but also that it was given to a second child as well. Under § 42-35-14, the agency was permitted to summarily suspend Mr. Blais' license if the agency found that "public health, safety, or welfare imperatively requires emergency action . . ." Given the above findings, the Court finds that it was clearly reasonable to summarily suspend Mr. Blais' license in order to ensure that future errors did not occur pending a full administrative hearing. An administrative hearing was held on the merits of Mr. Blais' case, as required after a summary suspension. See § 42-35-14(c) (". . . summary suspension of license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined."). Hearing Officer Warren found that Mr. Blais violated multiple statutes by dispensing morphine to two infants and keeping his pharmacy in such a disorderly state. These findings have not been disturbed. While it is acknowledged that this type of summary suspension is a first in Rhode Island for a dispensing error, the risk that the particular error posed to the public, health, safety, and welfare was obvious. It is clear and irrefutable that the Department was substantially justified in investigating and holding an evidentiary hearing under these circumstances.
Appellee argues that the administrative proceedings were per se substantially justified because such were conducted after receiving a complaint. Section 42-92-2(2) provides that "[a]ny agency charged by statute with investigating complaints shall be deemed to have substantial justification for the investigation and for the proceedings subsequent to the investigation." Nevertheless, Appellee only cites statutory language that gives the Department authority to regulate the practice of pharmacy. See G.L. 1956 § 5-19.1-5(1). Appellee fails to cite statutory authority that specifically compels the agency to investigate following a complaint. Regardless, this Court need not spend much time on this issue as it is abundantly clear that the agency was substantially justified in its proceedings up until Director Fine's Final Decision.
Appellant makes the argument that Director Fine did not have the statutory authority to summarily suspend Mr. Blais' license under § 42-35-14 because the position of "Director of Health" does not fall under the definition of "agency" provided in § 42-35-1(1). To the Court's knowledge, this is the first time this excess of authority argument has been raised. Section 42-35-1(1) states that an agency includes "each state board, commission, department, or officer, other than the legislature or the courts, authorized by law to make rules or to determine contested cases . . ." A director is an officer of an agency. Furthermore, the Director of Health promulgates rules as § 5-19.1-7(3) makes clear that the Director of Health issues licenses pursuant to rules that are promulgated by the Board but approved by the Director. See also § 5-19.1-5(6). As a result, the Director of Health has final veto power when it comes to rulemaking by the Board. The Court finds Appellant's argument unpersuasive.
The Court is also not swayed by Appellant's argument that Director Fine did not have the authority to reject the proposed Consent Order or even consider Hearing Officer Warren's findings of fact and conclusions of law. Section 5-19.1-5 states that the Board's powers and duties are "subject to the approval of the director." Appellant points to subsection (4), positing that the Board need only seek approval from the Director of Health to conduct a hearing in general. Thus, the Board or Hearing Officer's ultimate decision, Appellant argues, is not subject to the approval of the Director of Health.
The Court declines to read the qualifying language in § 5-19.1-5 so narrowly. First, § 5-19.1-5(8) gives the Board authority to assess an administrative penalty on any person failing to comply with State pharmacy regulations. This administrative penalty, which Hearing Officer Warren fashioned based on her own findings, was also subject to the approval of the Director of Health according to § 5-19.1-5. Sec. 5-19.1-5(8) ("The board, subject to the approval of the director, shall: . . . Assess an administrative penalty on any person who fails to comply with any provision of this chapter or any rule, regulation, order, license or approval issued by the board relating to pharmacy . . ."); see also State v. Hazard, 68 A.3d 479, 485 (R.I. 2013) ("'[W]hen the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings.'" (quoting Alessi v. Bowen Ct. Condo., 44 A.3d 736, 740 (R.I. 2012))). Second, Appellant argued before Judge Nugent that Director Fine failed to afford proper deference to Hearing Officer Warren's findings of fact under the two-tiered system of review as described in Envtl. Scientific. Blais, 2014 WL 7368789, at *5. In comparing the system of review to a "funnel, " Judge Nugent agreed that this level of review was proper under the circumstances. Id. at *5-6. Notably absent from the decision is any indication that Director Fine did not have any authority to review Hearing Officer Warren's Decision. This Court will not permit Appellant to argue that Envtl. Scientific, the very standard that it urged this Court to apply two years ago, does not apply at this juncture. Finally, Hearing Officer Warren's sanctions were phrased as a "recommendation." Hearing Officer Warren's Decision 29. Section VIII of Hearing Officer Warren's Decision, titled "Recommendation, " would be superfluous if Appellant's interpretation of § 5-19.1-5 was correct. Consequently, this Court finds that Director Fine was substantially justified in rejecting the Consent Order and reviewing Hearing Officer Warren's Decision in general.
The Court is also not convinced by Appellant's notion at oral argument that Director Fine, given his position and support of legal counsel, was aware of the exact confines of his authority. The standard for substantial justification is objective and that of a reasonable person. The Court explicitly finds that a reasonable person could interpret the above-referenced sections to mean that the Board and Hearing Officer Warren's actions were subject to the approval of the Director of Health, especially when the agency has historically operated in such a manner.
The real argument in this case is whether Director Fine's Final Decision to permanently revoke Mr. Blais' license to practice pharmacy was substantially justified. The Court does recognize that a reversal for abuse of discretion or lack of substantial evidence on the record does not automatically mean that the agency's position was not substantially justified. See, e.g., Hadden v. Bowen, 851 F.2d 1266 (10th Cir. 1988); Houston Agric. Credit Corp. v. U.S., 736 F.2d 233 (5th Cir. 1984). Still, the situation before the Court is a bit far removed from a "run of the mill" abuse of discretion case. Here, Judge Nugent has already noted, as does this Court, that Director Fine blatantly "uprooted" Hearing Officer Warren's factual findings to substitute his own opinion as to the proper sanction, all while citing the same standard of review used to assess the proper degree of sanctions. Blais, 2014 WL 7368789, at *10-11. See also Richardson v. Smith, 691 A.2d 543, 546 (R.I. 1997) ("Ordinarily, after one judge has decided an interlocutory matter in a pending suit, a second judge on that same court, when confronted at a later stage of the suit with the same question in the identical manner, should refrain from disturbing the first ruling."). Additionally, this Court acknowledges that a pharmacist has never received a permanent license suspension for a dispensing error in Rhode Island history. Blais, 2014 WL 7368789, at *7. This fact cuts much deeper when the license is permanently revoked as opposed to summarily suspended in order to determine the best course of action. Finally, it is clear to the Court that Mr. Blais admitted his errors and took substantial steps to prevent their reoccurrence. Id.
Director Fine does have the authority to revoke a pharmacist's license pursuant to § 5-19.1-7(4), and a hearing officer's authority is subject to the approval of the Director of Health pursuant to § 5-19.1-5. Nevertheless, in light of the above analysis, it is clear that Director Fine was not substantially justified in exercising his authority in this case. His sanction was not reasonable or well founded in fact and law. See Krikorian, 606 A.2d at 675. Accordingly, this Court finds that Director Fine was not substantially justified in striking Hearing Officer Warren's recommended sanction and permanently revoking Mr. Blais' license. As a result, the Court hereby awards Appellant reasonable litigation expenses incurred after Director Fine's Final Decision was released.
B Reasonableness of Litigation Expenses
"A trial justice determines the reasonableness of the fee by considering the factors enumerated in Rule 1.5 [of the Rules of Professional Conduct]." Keystone Elevator Co. v. Johnson & Wales Univ., 850 A.2d 912, 921 (R.I. 2004) (citing Colonial Plumbing & Heating Supply Co. v. Contemporary Constr. Co., 464 A.2d 741, 743 (R.I. 1983)). These factors include:
"(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
"(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
"(3) the fee customarily charged in the locality for similar legal services;
"(4) the amount involved and the results obtained;
"(5) the time limitations imposed by the client or by the circumstances;
"(6) the nature and length of the professional relationship with the client;
"(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
"(8) whether the fee is fixed or contingent." Rules of Prof'l Conduct 1.5.
These factors should be considered on a case-by-case basis as no one factor is controlling. See Palumbo v. U.S. Rubber Co., 102 R.I. 220, 224, 229 A.2d 620, 623 (1967).
A review of the bill submitted by Appellant indicates that Appellant's attorney, Michael A. Kelly (Attorney Kelly), began preparing Appellant's appeal of Director Fine's decision on June 18, 2013. Appellant's Mem., Ex. 3. The entry for that date is captioned: "Document review and research regarding director discretion issue. (CW)." Id. The appeal was drafted approximately one week later. Id. From this point forward, Attorney Kelly has billed Appellant for 324.70 hours, plus additional expenses of $2,552.95. Id. Section 42-92-2(6)(i) states that the award may not exceed $125.00 an hour, unless special factors justify a higher degree. Attorney Kelly has stated in his affidavit that the specified hours were billed at the rate of $125.00 an hour. Appellant's Mem., Ex. 3 ¶ 7. Despite both attorneys and paralegals being billed at the same hourly rate, the Court finds this rate reasonable. Appellee does not contest the reasonableness of the rate and the statutorily capped rate is likely lower than the rate normally billed for attorneys in this area. At this rate, Attorney Kelly has billed Appellant for $40,587.50 in attorneys' fees since Attorney Kelly began preparing Appellant's administrative appeal.
This amount does not include any fees incurred in pursuing Appellant's civil rights claim under 42 U.S.C. § 1983. The Court also explicitly acknowledges that Appellant does not waive his right to seek additional fees on other counts of his Complaint related to his civil rights claim by seeking fees under the EAJA.
Furthermore, this Court finds the hours reasonable. Appellee appears to agree with this finding since it does not contest the reasonableness of the hours stated. Moreover, the Court is "not required to engage in a line-by-line review of time records or to 'drown in a rising tide of fee-generated minutiae.'" Sherwood Brands of R.I., Inc. v. Smith Enters., Inc., No. Civ. A. 00-287T, 2002 WL 32157515, at *2 (D.R.I. Sept. 5, 2002) (quoting U.S. v. Metro. Dist. Comm'n, 847 F.2d 12, 15 (1st Cir. 1988)). As a result, Appellant is awarded a total of $43,140.45 in fees and expenses-$40,587.50 in fees and $2,552.95 in expenses.
III Conclusion
The Court finds that Director Fine was not substantially justified in uprooting Hearing Officer Warren's recommended sanction and permanently revoking Mr. Blais' license to practice pharmacy in Rhode Island. It is within the discretion of the Court to bifurcate the adjudicatory proceedings into the administrative investigation and hearing and agency appeal. The Court finds that doing so is consistent with the policy behind the EAJA and necessary to avoid an unjust result. Appellant is hereby awarded $43,140.45 in attorneys' fees and litigation expenses that were incurred after June 18, 2013, the point that Appellant began pursuing his appeal of Director Fine's Final Decision. The Court explicitly finds this award fair and reasonable in light of the circumstances. Counsel shall submit an appropriate order and judgment for entry consistent with this Decision.