Summary
finding that a 3.25-hour entry that listed three tasks does not create a block-billing problem because the three tasks relate to a single motion
Summary of this case from EFF v. OFFICE OF DIRECTOR OF NATIONAL INTELLIGENCEOpinion
No. CV-98-1588-HU
September 14, 2001
Paul E. Merrell, 25972 Alsea-Deadwood Highway, Alsea, Oregon 97324, Attorney for Plaintiffs.
Thomas C. Lee, Assistant United States Attorney, 1000 S.W. Third Ave., Suite 600, Portland, Oregon 97204-2902, Jeffrey K. Handy, Special Assistant United States Attorney, Office of General Counsel, United States Department of Agriculture, 1734 Federal Building, 1220 S.W. Third Ave., Portland, Oregon 97204, Attorneys for Defendants.
ORDER
Plaintiffs Richard Oberdorfer and Western Radio Services, Inc., brought this declaratory judgment action under the Administrative Procedures Act, 5 U.S.C. § 701-706, challenging two actions by defendant the United States Forest Service. Plaintiffs challenged the dismissal of an appeal brought by Oberdorfer under 36 C.F.R. § 215, and the denial of Western Radio's request for stay of project implementation under 36 C.F.R. § 251. In a September 29, 1999 Opinion, I granted plaintiffs' motion for summary judgment and denied defendants' motion for summary judgment regarding the denial of Oberdorfer's appeal. I also denied plaintiffs' motion for summary judgment and granted defendants' motion for summary judgment on Western Radio's challenge to the denial of the request for stay of project implementation.
Following entry of judgment on October 1, 1999, plaintiffs moved for an award of attorney's fees on October 29, 1999, and then filed an amended motion for attorney's fees on November 5, 1999. Defendants moved to postpone consideration of the attorney's fees motion until the conclusion of the appeal which defendants filed on December 2, 1999. I granted defendants' postponement motion without prejudice to plaintiffs refiling their attorney's fees motion within thirty days of the conclusion of any appeals.
The Ninth Circuit dismissed defendants' appeal and issued its mandate on December 18, 2000. Plaintiffs renewed their motion for attorney's fees on January 2, 2001. For the reasons explained below, I grant plaintiffs' attorney's fees motion in part and deny it in part. I award plaintiffs $25,387.54 in fees and $1,502.45 in costs.
STANDARDS
Plaintiffs seek fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA). Under the EAJA, the court must award attorney's fees to prevailing parties in civil actions against the United States unless the position of the United States was substantially justified. 28 U.S.C. § 2412(d)(1)(A).
Claimants are considered "prevailing parties for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." United States v. Real Property Known As 22249 Dolorosa St., 190 F.3d 977, 981 (9th Cir. 1999) (internal quotation omitted). The burden is on the government to show that its position was substantially justified. Id. at 983-84.
DISCUSSION
I. Prevailing Party and Substantial Justification
A. Prevailing Party
Although plaintiffs did not prevail on all of their claims, they are prevailing parties for the purposes of an EAJA fee award because they succeeded on several significant issues in the litigation which achieved many of the benefits they sought in bringing suit. Most notably, plaintiffs succeeded in their pursuit of an order requiring the Forest Service to consider the merits of Oberdorfer's appeal. Incorporated within that ruling was a determination that the Forest Service's interpretation of 16 U.S.C. § 1612(d)(4), which the Forest Service contended allowed it complete discretion whether to consider project decision appeals brought under 36 C.F.R. § 215, was contrary to the purpose of the Appeals Reform Act. Also incorporated within that ruling was a determination that 36 C.F.R. § 215.15(a)(3), the Forest Service's regulation allowing dismissal of a duplicative appeal, was beyond the rulemaking authority granted by 16 U.S.C. § 1612. Both of these determinations were significant victories for plaintiffs.
In opposing this fee petition, defendants argue that plaintiff is entitled to no fees for any time spent on the case while it was pending in the United States District Court for the District of the District of Columbia. This case was originally filed in that court on or about September 16, 1998. Shortly thereafter, plaintiffs filed a motion for preliminary injunction. Approximately one week later, defendants moved to transfer the case to the District of Oregon, or alternatively, for summary judgment. The District of Columbia court considered only the motion to transfer and granted the motion. That court expressly declined to rule on the preliminary injunction or summary judgment motions.
After the case was transferred to the District of Oregon, briefing in response to defendants' pending motion for summary judgment commenced. Plaintiffs also filed a cross motion for summary judgment. Oral argument on both motions was held, at which time plaintiffs withdrew the pending motion for preliminary injunction, with the reservation that any briefing done on that motion be incorporated into the summary judgment motions.
Defendants' contention that plaintiffs are entitled to no fees for time spent while the case was pending in the District of the District of Columbia, is based on defendants' assertion that plaintiffs were not prevailing parties in that district given that the only motion decided by that court, the motion to transfer, was decided adverse to plaintiffs. I reject this argument.
A "prevailing party" under the EAJA is one who has succeeded on a claim for relief. Hudson v. Sullivan, 779 F. Supp. 37, 40 (W.D.Pa. 1991). A party who wins some relief on the merits of its claims is considered a "prevailing party." National Audubon Soc. v. United States Forest Serv., 46 F.3d 1437, 1448 n. 10 (9th Cir. 1994).
Defendants' argument would preclude an award of time for hours spent drafting the Complaint and the preliminary injunction motion, both of which were relevant to the merits of the case. Furthermore, it was defendants who moved to transfer the case, forcing plaintiffs to expend time responding to that motion. While the District of Columbia court ultimately determined that the District of Oregon was the more appropriate venue, it did not hold that venue in the District of the District of Columbia was improper.
Because plaintiffs prevailed on at least some of the merits of this case, plaintiffs' loss of the transfer motion does not alter their status as prevailing parties and does not preclude an award of time for hours expended while the case was pending in the District of the District of Columbia.
B. Substantial Justification
Next, defendants contend that plaintiffs are not entitled to EAJA fees because the government's position in this case was substantially justified. As used in the EAJA, "substantially justified" means that the government's position had a reasonable basis in both law and fact. 22249 Dolorosa St., 190 F.3d at 984.
The position must be "justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation omitted); see also Blaylock Elec. v. NLRB, 121 F.3d 1230, 1232 (9th Cir. 1997) ("substantially justified" means "justified to a degree that could satisfy a reasonable person."). The government's failure to prevail does not raise a presumption that its position was not substantially justified. Bay Area Peace Navy v. United States, 914 F.2d 1224, 1231 n. 4 (9th Cir. 1990).
The government's action at issue was its dismissal of Oberdorfer's section 215 appeal as duplicative of the section 251 appeal filed by Western Radio. The government argues that its position was substantially justified because previously, Oberdorfer, either in his name or that of Western Radio, but always on Western Radio letterhead, had challenged various Forest Service decisions and filed only one administrative appeal per dispute. Defendants note that in those disputes, plaintiffs referred to themselves as Western Radio and Oberdorfer interchangeably in their correspondence. Thus, defendants state, when the two administrative appeals were filed in this case, the Forest Service reasonably saw the appellants as representing the same interests and dismissed one appeal. However, as explained in the September 29, 1999 summary judgment Opinion, defendants' position lacked merit. It also was not substantially justified. While Oberdorfer was the sole shareholder, executive officer, and director of Western Radio, there was no factual or legal basis for the Forest Service to conclude that he lacked independent personal interests. As explained in the summary judgment Opinion, the "alter-ego" and "veil-piercing" theory relied upon by defendants was inapplicable without allegations of fraud or misconduct, of which there were none.
Additionally, defendants' refusal to accept Oberdorfer's professed aesthetic concerns was not substantially justified. The Ninth Circuit had previously rejected a claim by Oberdorfer because he had failed to allege personal injury to his recreational and aesthetic interests apart from the economic injuries to Western Radio. Western Radio Servs Co., v. Glickman, 123 F.3d 1189, 1196 (9th Cir. 1997). Thus, in asserting his individual claims separately from, but simultaneously with, Western Radio's claims, Oberdorfer was following the Ninth Circuit's directive. Defendants' position that he had no such individual claims is contrary to how the Ninth Circuit indicated Oberdorfer should proceed.
Furthermore, defendants' position that Oberdorfer had no remedy under the Appeals Reform Act was also not substantially justified. As explained in the summary judgment Opinion, defendants' position that the Forest Service had complete discretion as to whether to even consider Oberdorfer's appeal, was contrary to the purpose of the Act as expressed in its legislative history, and to regulations promulgated under the Act by the Forest Service itself. A position contrary to congressional intent is not substantially justified. See Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995) (Forest Service's position not substantially justified when its interpretation of statute defied plain meaning of words used and congressional intent).
Finally, defendants' reliance on 36 C.F.R. § 215.15(a)(3) for dismissal of Oberdorfer's appeal was not substantially justified given that the regulation went beyond the rulemaking authority granted by the enabling statute at 16 U.S.C. § 1612. Thus, for the reasons initially expressed in the September 29, 1999 summary judgment Opinion and amplified here, I conclude that defendants' position in this litigation was not substantially justified. Plaintiffs are entitled to a fee award under the EAJA.
II. Amount of Fees
A. Number of Hours
Plaintiffs seek compensation for attorney, law clerk, legal intern, and legal assistant time. In addition to addressing specific objections raised by defendants, the court has an independent duty to scrutinize a fee request to determine its reasonableness. Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1993); see also Poole v. Textron, Inc., 192 F.R.D. 494, 508 (D.Md. 2000) (because the award must be reasonable, it is incumbent on the district court to subject the request to an independent review to "insure that the time expended . . . was not excessive to the task and [to consider] the hourly rate charged in light of fees charged in the legal community for services of like kind and quality.").
1. Washington, D.C. Counsel
Plaintiffs' Washington, D.C. counsel were attorneys and staff at Haley Bader Potts, P.L.C., who expended 183.25 hours on the case. Benjamin J. Lambiotte was plaintiffs' primary counsel there. As noted above, the Complaint was filed on September 16, 1998. At least 20 hours were spent drafting the verified Complaint. See Exh. 2 to Pltf's Memo. at pp. 16-17 (entries for Lambiotte for September 5, 6, 7, 15, and 16, 1998). This time is clearly compensable as it is not an unreasonable amount of time to have spent on a verified Complaint with four counts, eighty-nine paragraphs, and thirty-six pages.
Other entries also contain some time working on the Complaint but awarding time for them is problematic because of a "block billing" problem. The entries at issue are: (1) a September 4, 1998 entry by Lambiotte for 3 hours in which he both worked on the Complaint and reviewed emails from Oregon counsel; (2) a September 8, 1998 entry by Lambiotte for 5 hours which shows work on the Complaint, research on the preliminary injunction motion, and preparing a status report to clients; (3) a September 10, 1998 entry by Lambiotte for 3 hours in which he worked on the Complaint, had a telephone conference with Oberdorfer, and drafted a letter to the client regarding an action plan; and (4) a September 14, 1998 entry by Lambiotte for 5 hours in which he reviewed documents forwarded by Oberdorfer, revised preliminary injunction papers, prepared a status letter, and made further revisions to the Complaint.
I refer to this billing practice as "block billing." See Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1554 n. 15 (10th Cir. 1996) (term "block billing" refers to "the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks."). The problem it creates is that the court cannot assess the reasonable number of hours spent on a given task when the time spent on the task is not segregated from time spent on other tasks.
I conclude that any block billing of three or more hours and containing four or more tasks, prevents me from assessing the reasonable number of hours spent on a given task. Similarly, any block billing of three or more hours and which contains two or more tasks, if one of them could have taken anywhere from a small to a substantial amount of time, also prevents me from determining the reasonableness of the time spent. Thus, because I cannot discern the number of hours spent working on the Complaint, or the other tasks performed, on September 4, 8, 10, and 14, 1998, by Lambiotte and referred to above, I disallow any time for those entries. See Reyes v. Nations Title Agency of Ill., Inc., No. 00-C-7763, 2001 WL 687451, at *1 (N.D.Ill. June 19, 2001) (refusing to award fees for all entries billed as "block time").
Although the September 16, 1998 entry by Lambiotte contains three tasks, any one of which could have taken from a small amount of time to a substantial amount of time, and is for three hours, I do not disallow this entry because each task, though discrete, was related to the Complaint and is chargeable to that one task.
A fair amount of time was also spent on the preliminary injunction motion, which although later withdrawn, was incorporated into the summary judgment briefing. The following entries show time exclusively devoted to the preparation of the preliminary injunction motion: 2.5 hours by law clerk Julie Kearney on September 9, 1998; 1.0 hours by Kearney on September 10, 1998; 2 hours by Lambiotte on September 11, 1998; 3.5 hours by Lambiotte on September 13, 1998; 3.25 hours by Lambiotte on September 17, 1998; 6 hours by partner Henry Solomon on September 21, 1998; 5.75 hours by Kearney on September 22, 1998; 2.5 hours by Kearney on September 23, 1998; 6 hours by Kearney on September 24, 1998; 2.25 hours by Kearney on September 25, 1998; 3 hours by Lambiotte on September 25, 1998; 1.75 hours by Kearney on October 16, 1998.
Although this 3.25 hour entry has three different tasks listed, it does not run afoul of the "block billing" problem because it is clear that, while discrete, all three tasks related to the preliminary injunction and should be chargeable to that one task.
I find this time reasonable with the exception of the 14.25 total hours spent by Kearney on September 22, 23, and 24, 1998, checking citations, proofreading, and revising the memorandum in support of the preliminary injunction. Of this 14.25 hours, 8.25 was spent checking citations and proofreading on September 22 and 23, 1998. This is an unreasonable amount of time for such a task. I conclude that 4 hours of time for cite checking and proofreading is sufficient and thus, I award 4 of the 5.75 hours entered by Kearney on September 22, 1998, disallow 1.75 hours entered by Kearney on that date, and disallow the 2.5 hours entered by Kearney for September 23, 1998. In addition, I conclude that Kearney's 6 hours spent preparing revisions to the memorandum in support of the preliminary injunction motion on September 24, 1998, are also excessive and that a reasonable time for that task is 3 hours. Thus, I deduct 3 hours from that entry. All other hours mentioned in the previous paragraph are allowed.
Several entries showing some portion of time spent on the preliminary injunction motion are disallowed because of the block billing problem discussed above. They are: (1) a September 8, 1998 entry for 5 hours by Lambiotte in which worked on the Complaint, the preliminary injunction, and prepared a status report to the client (this entry was previously disallowed in the section above discussing time spent on the Complaint); (2) a September 14, 1998 entry for 5 hours by Lambiotte in which he reviewed documents from the client, revised papers related to the preliminary injunction and the Complaint, and prepared a status letter (this entry was previously disallowed in the section above discussing time spent on the Complaint); (3) a September 21, 1998 entry for 3 hours in which Lambiotte revised a brief related to the preliminary injunction motion and prepared its table of contents, prepared a proposed order, and drafted a letter to "M. Gippert"; (4) a September 24, 1998 entry in which Lambiotte spent 6 hours both revising preliminary injunction papers and reviewing and responding to Oregon counsel's emails; and (5) an October 14, 1998 entry for 7 hours in which Lambiotte researched and drafted an opposition to the motion to transfer and a reply to the opposition to the preliminary injunction motion, and reviewed a draft motion for summary judgment.
Finally, other entries that seek compensation for several tasks, but do not run afoul of the block billing problem because the total amount of time sought is less than three hours, also show work on the injunction. On September 9, 1998, Lambiotte seeks 2 hours for time spent on the injunction, reviewing a letter, and writing a letter. Because there were three tasks performed, I consider one-third, or .6 hours, of that time to have been spent on the injunction. On September 22, 1998, Lambiotte spent 2.5 hours compiling exhibits for the preliminary injunction, making calls, responding to emails from Oregon counsel, and preparing "telmem." Because he performed four tasks, I consider one-fourth, or .62 hours, to have been spent on the preliminary injunction. On September 23, 1998, Lambiotte spent 1.5 hours revising the preliminary injunction materials and reviewing Oregon counsel's Freedom of Information Act (FOIA) requests. Because he performed two tasks, I consider one-half, or .75 hours, to have been spent on the preliminary injunction motion. Given these allocations, I consider the total allowed hours spent on the preliminary injunction to be reasonable.
When allocating a portion of a particular entry's time to a certain task, the remaining portion of that entry is allowed unless it is disallowed for another reason. Thus, here, in determining that .6 hours of Lambiotte's 2.0 hours on September 9, 1998, are to be considered as having been spent on the preliminary injunction, the remaining 1.4 hours are allowable unless they are separately and expressly disallowed for a different reason. Without a separate disallowance, the allocation of the .6 hours is done in order to determine the total number of hours spent on a particular task, and thus the reasonableness of those hours, not as an indication that the .6 hours is the only part of the time entry to be awarded.
Of the remaining time sought by Washington, D.C. counsel, there are some additional entries I decline to allow because of block billing: (1) 5.5 hours on August 28, 1998, by Lambiotte in which he conducted research regarding Forest Service appeals, reviewed documents, drafted an outline of appealable issues, and conferred by telephone with Oregon counsel; (2) 5 hours on August 31, 1998, by Lambiotte in which he continued work on the "Forest Service matter" and prepared a status and strategy memorandum for his client and Oregon counsel; and (3) 3 hours on September 1, 1998, in which Lambiotte conducted further research, reviewed documents, conferred with his client and Oregon counsel, and drafted a letter.
I closely examined three other entries, but will allow them because although they recite discrete tasks and thus, could run afoul of the block billing problem as I have outlined it, it is clear that each task relates to a single larger task and thus, the time should be compensable. For example, on September 3, 1998, Lambiotte billed 4 hours for research on service requirements on a government agency, for locating service addresses for defendants, and for further research. Although these are separate tasks, they all relate to researching the larger issue of service of a Complaint on a government agency and thus, there is no block billing problem. Similar entries are the 5 hours sought by Lambiotte on October 15, 1998, and the 5.5 hours sought by Lambiotte on October 16, 1998.
Lastly, the 26.5 hours spent by Washington, D.C. counsel on the fee application itself are more than what would ordinarily be expected. A more reasonable figure would be in the range of 15-18 hours. Thus, I allow the 1 hour sought by Lambiotte on October 8, 1999, the 5 hours sought by Lambiotte on October 12, 1999, the 6 hours sought by Lambiotte on October 13, 1999, the 5.5 hours sought by Lambiotte on October 14, 1999, and .5 of the 3 hours sought by Lambiotte on October 15, 1999. I disallow 2.5 of the 3 hours sought by Lambiotte on October 15, 1999, the .5 hours sought by Lambiotte on October 20, 1999, the .5 hours sought by Lambiotte on October 22, 1999, and the 5 hours sought by Lambiotte on October 25, 1999.
2. Oregon Counsel
Sole practitioner Paul Merrell was plaintiffs' lead attorney in Oregon. He seeks compensation for 109.6 hours of attorney time and 4.5 hours of time for a legal assistant. First, one entry runs afoul of the block billing problem discussed above: 4.3 hours on September 2, 1998, in which Merrell researched "FSM sections," reviewed recent amendments to the FOIA, and reviewed documents sent to him by Oberdorfer. In accordance with the previous discussion regarding block billing, this time is disallowed.
Second, Merrell seeks compensation for 12 hours spent on the fee petition. See Merrell Stmt. at pp. 15-16 (entries dated October 8, 1999 through November 5, 1999). I have already allowed 18 hours by Washington, D.C. counsel for this task. I consider an additional 12 hours by Merrell to be excessive. Because I conclude that a total of 25 hours is a reasonable number of hours in which to prepare the fee petition, I award Merrell 7 of the 12 hours he claims for this task. Thus, I allow the two entries for .3 hours on October 8, 1999, the 1.2 hours on October 14, 1999, the 2.8 hours on October 15, 1999, and 2.4 of the 3.1 hours on October 26, 1999. I disallow .7 of the 3.1 hours claimed on October 26, 1999, the .3 hours claimed for November 3, 1999, the 1.3 hours claimed for November 4, 1999, and the total of 2.7 hours claimed for three different entries on November 5, 1999.
Next, defendants raise specific objections to certain time claimed by Merrell. First, defendants object to 12.7 hours for work on plaintiffs' administrative appeals which defendants argue is not compensable. Defendants argue that the EAJA allows fees for administrative proceedings only if they are "adversary adjudications." Defendants contend that the administrative appeals under sections 215 and 251 are not such proceedings.
Defendants fail to identify the specific entries at issue here. Because the administrative appeals preceded the filing of the Complaint, I was able to easily locate what I presume are the challenged entries (1.6 hours on July 22, 1998, 8.4 hours on July 30, 1998, 2.3 hours on August 2, 1998, 0.1 hours on August 3, 1998, 0.1 hours on August 26, 1998, and 0.2 hours on August 26, 1998). In the future, defendants are requested to cite to the particular time entries they challenge.
Fees are allowed for work performed at the federal agency level when an agency conducts an adversary adjudication and the position of the agency was not substantially justified. 5 U.S.C. § 504(a)(1); see also 28 U.S.C. § 2412(d)(3) (referencing section 504). "Adversary adjudication" is further defined as "an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise. . . ." 5 U.S.C. § 504(b)(1)(C). Section 554 applies "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," 5 U.S.C. § 554, unless the proceeding falls under one of six exceptions that are not relevant to this case.
In this case, the agency was never represented by counsel during Oberdorfer's section 215 appeal. Thus, while my research produced no cases resolving, one way or the other, whether fees for work performed on a section 215 appeal are compensable under the EAJA or the Administrative Procedures Act, the plain language of the fee statutes involved precludes fees for the 12.7 hours spent by Merrell at the administrative level in this case.
Second, defendants object to certain discrete entries for items defendants contend are not related to plaintiffs' action. The first of these objections is to the 4.3 hours for September 2, 1998, in which Merrell spent time, in part, researching "FSM sections potentially applicable to national telecommunications requirements." Merrell's Stmt. at p. 9. Because I previously disallowed this time as a result of the block billing problem, I need not discuss it further.
Again, defendants fail to specify which particular time entry is the target of their objection. Because of the particular description of the work performed on that date, however, I was able to discern which entry is at issue.
Next, defendants challenge the 1.0 hour on September 3, 1998, in which Merrell discussed certain issues with Lambiotte including the online sections regarding the national requirements for telecommunications, and certain stay and FOIA requests. Defendants argue that the issues in this case were plaintiffs' entitlement to an administrative appeal and whether the denial of a stay was proper, neither of which implicated a national plan. I reject this argument. While plaintiffs' appeal may have been limited to the administrative record, plaintiffs were certainly entitled to make legal arguments during that appeal based on national telecommunications requirements. Thus, I find the 1.0 hour on September 3, 1998, to be properly compensable.
Finally, defendants challenge the following hours: "4.4 hours for preparing FOIA requests[;]" "3.9 hours for discussion of national issues with Mr. Lambiotte;" "0.3 hours for plaintiffs' Dead Indian, Aldrich Mountain, and South Paulina Peak administrative appeals;" and "0.5 hours of research into NEPA[.]" Defts' Opp. at p. 13.
I decline to disallow any of the challenged time because of defendants' failure to identify the particular time entry at issue. While all of defendants' challenges have suffered from this problem, I have, with fairly minimal effort, been able to identify the previous challenged time entries. As noted above, the 12.7 hours spent on the administrative appeal were easily identifiable because they comprised the first several time entries logged by Merrell. The 4.3 hours on September 2, 1998, and the 1.0 hour on September 3, 1998, were easily identified without a tremendous effort because of the specific detail in those particular billing entries. However, the remaining challenges appear to be aggregates of several entries scattered throughout the several pages of billings and cannot be easily discerned. Thus, I do not consider them.
In sum, of the 109.6 hours claimed by Merrell, 4.3 hours are subtracted for the September 2, 1998 block billing entry, 5 hours (as detailed above) are subtracted as excessive time spent on the fee petition, and 12.7 hours (as detailed above) are deducted from the July 8, 1998, through the August 26, 1998 entries, for time spent on the administrative appeal. This leaves 87.6 hours for attorney time and 4.5 hours for time spent by the legal assistant.
B. Hourly Rate
EAJA sets a ceiling of $125 per hour "unless the court determines that an increase in the cost of living . . . justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). To adjust for the cost of living, the Ninth Circuit applies the consumer price index for all urban consumers (CPI-U). Jones v. Espy, 10 F.3d 690, 692-93 (9th Cir. 1993) (CPI-U for all items, not just legal services, applies).
Recently, the Ninth Circuit overruled an earlier case which allowed for the application of the most recent CPI-U to all hours claimed, regardless of when the work was performed. In Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001), the court explained that the previously approved formula to determine the proper cost-of-living adjustment was to "multiply the basic EAJA rate by the current consumer price index for urban consumers (CPI-U), and then dividing the product by the CPI-U in the month that the case was imposed . . . March 1996 for post-amendment cases[.]" Id. at 1148 (citing Ramon-Sepulveda v. INS, 863 F.2d 1458, 1463 (9th Cir. 1988)).
In Sorenson, however, the court accepted the federal defendants' argument that in using the CPI-U that was current at the time the district court issued its order, regardless of when those hours were expended, the district court erred and violated the rule established in Library of Congress v. Shaw, 478 U.S. 310, 320-21 (1986) which held that prejudgment interest may not be charged against the government in the absence of an express authorization by Congress. Id. Rather, the court explained, the district court should multiply the base rate by the CPI-U for the year in which the fees were earned. Id. at 1149.
Thus, for attorney hours worked in 1998, the EAJA adjusted hourly rate is $128.85 (CPI-U for 1998 (160.5) divided by CPI-U for the month Congress adopted the $125 ceiling (155.7 for March 1996), then multiplied by the EAJA ceiling rate of $125/hour). For 1999, it is $130.86 (CPI-U for 1999 (163) divided by CPI-U for the month Congress adopted the $125 ceiling (155.7 for March 1996), then multiplied by the EAJA ceiling rate of $125/hour).
Additionally, plaintiffs seek $35 for legal assistant hours, $65 per hour for legal intern hours, and $110 per hour for "law clerk associate (bar admission pending)" hours. The $35 per hour for legal assistant time is reasonable.
The time for the "legal intern" and the "law clerk associate" is sought by Washington, D.C. counsel. Based on the nature of the work performed as seen in the billing statements, it is clear that the work of the legal intern is akin to legal research and writing performed by law students or law graduates not actually practicing as attorneys, often referred to as law clerks. I conclude that $65 per hour is reasonable for such time. I also conclude, however, that the $110 per hour sought for the "law clerk associate (bar admission pending)" is unreasonable as measured by the prevailing rates in Oregon. See Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997) (in fee award under 42 U.S.C. § 1988, reasonable hourly rate properly determined by prevailing market rate in the forum in which the district court sits). In 1998, when some of this work was performed, $110 per hour surpassed the average hourly rate charged by attorneys admitted to the bar with zero to three years of practice who practiced in Portland. Oregon State Bar 1998 Economic Survey at p. 32. Clearly, a law clerk who has not yet been admitted to the bar cannot reasonably command more per hour than an attorney with three years of practice. A more reasonable figure is $75 per hour which compensates the employee for having more experience than the legal intern, but does not overcompensate the employee for experience not yet obtained.
III. Calculation of Award and Expenses
Based on the above discussion, I award plaintiffs $1,781.25 for law clerk hours (23.75 hours x $75/hour); $682.50 for legal intern hours (10.5 hours x $65/hour), and $157.50 for legal assistant hours (4.5 hours x $35/hour). For attorney's hours, I award $8,987.28 for hours expended by Washington, D.C. counsel in 1998 (69.75 hours x $128.85/hour); $2,355.48 for hours expended by Washington, D.C. counsel in 1999 (18 hours x $130.86/hour); $2,551.23 for hours expended by Merrell in 1998 (19.8 hours x $128.85/hour); and $8,872.30 for hours expended by Merrell in 1999 (67.8 hours x $130.86/hour). The total attorney's fees awarded is $22,766.29.
Additionally, in expenses, plaintiffs seek $26.98 for litigation binders, and $1,475.47 for copy costs, fax charges, travel costs, postage, courier costs, and costs associated with computer assisted legal research. I conclude that these expenses are not unreasonable. The total costs and expenses awarded is $1,502.45.
CONCLUSION
Plaintiffs' motion for attorney's fees (#57), and amended motion for attorney's fees (#60), are granted in part and denied in part. Plaintiffs are awarded $25,387.54 in fees and $1,502.45 in costs.
IT IS SO ORDERED.