Partial Fees For Partial Success

MacLeod v. P&G Disability Benefits Plan, 2007 U.S. Dist. LEXIS 3543 (D. Conn. Jan. 18, 2007)
   
After granting in part and denying in part plaintiff's motion for summary judgment, the Connecticut district court awarded plaintiff attorney's fees for obtaining a ruling that the categorical military exclusion that defendants relied upon in denying plaintiff disability benefits was inconsistent with the terms of its disability plan. No determination was made about plaintiff's eligibility for benefits. Defendant moved to reconsider the fee award, arguing that it was premature because there was no guarantee that plaintiff would prevail and obtain benefits. The court upheld the award, noting that it was not based on obtaining benefits but rather for work done obtaining a favorable ruling on the military exclusion. However, the court declined to grant plaintiff the full amount of attorney's fees incurred to date given that he had not yet achieved full success, awarding $25,000 of the $64,000 requested. 

Reasonable Justification Defeats EAJA Fees

Creech v. Barnhart, 2007 U.S. App. LEXIS 1097 (4th Cir. Jan 18, 2007 )

Petitioner applied for supplemental social security income, alleging various mental and physical disabilities. An Administrative Law Judge denied her claim.  Plaintiff appealed to a federal district court, which reversed.  Plaintiff then requested attorney’s fees under the Equal Access to Justice Act (EAJA). The district court refused, holding that the government’s litigation position was substantially justified. The Fourth Circuit affirmed, noting that the government’s position need only be justified to a degree that would satisfy a reasonable person and that it was reviewing the district court only for abuse of discretion.

No Attorney's Fees Based On Defendant's Voluntary Change Of Behavior

Karsaev v. Chertoff, 2006 U.S. Dist. LEXIS 91482 (D. Co. Dec. 19, 2006)

Petitioner filed a petition for Writ of Habeus Corpus to prevent his deportation after the Board of Immigration Appeals (BIA) determined that he was not entitled to asylum. Shortly thereafter the BIA agreed to reopen his case, and the parties filed a joint motion to dismiss. However, when DHS then asked the BIA to reconsider its decision to reopen the case, petitioner moved to vacate the order of dismissal and re-institute his Habeus proceeding. The court granted that motion, and petitioner requested roughly $28,000 in attorney’s fees under the Equal Access to Justice Act (EAJA).  Although there had been no ruling on the merits of his claim, petitioner argued that he was a prevailing party because he achieved his objective of the BIA reopening his case. District Court Judge Babcock rejected this argument and denied the fee request, citing Buckhannon Bd. & Home Care, Inc. v. West Va. Dept. of Health & Human Resources, 532 U.S. 598 (2001). In Buckhannon, the Supreme Court held that "prevailing party" does not include parties who achieved a desired result of a lawsuit based solely on a voluntary change in the defendant's conduct.

Beware Relationship Of Fees To Recovery

Romanowski v. Nestle Waters North America, Inc. 2006 U.S. Dist LEXIS 93530 (M. D. Fla. Dec. 28, 2006)

The parties jointly requested approval of the settlement of $84,000 in attorney’s fees as recoverable under the Fair Labor Standards Act (FLSA) in this class action. The court approved fees in that amount, but expressed reservations germane to future fee requests. The Court noted that each plaintiff recovered only $2,291, and the high ratio of fees to recovery  “raises the concern that the litigation was driven primarily by an intent to recover attorney’s fees.”  The court cautioned plaintiff’s attorneys in the future to pay attention to the amount in controversy when litigating cases under the FLSA. 

Government Lawyers Entitled To Fees At Market Rates

National Labor Relations Board v. Local 3, IBEW, 2006 U.S. Dist. LEXIS 31413 (2d Cir. Dec. 20, 2006)

National Labor Relations Board (“NLRB”) petitioned for civil contempt against a labor union, seeking to enforce a judgment and consent order. The Special Master ruled in favor of NLRB and granted it attorney’s fees at prevailing market rates. The union objected, arguing that the NLRB should be reimbursed at government salary rates rather than private market rates. The Second Circuit disagreed, citing Blum v. Stevensen, 465 U.S. 886 (1984), where the Supreme Court held that a nonprofit legal aid foundation was entitled to prevailing market rates under 42 U.S.C. § 1988, as well as a number of circuit court cases extending Blum beyond the civil rights context.  The Court also noted that government salaries do not properly reflect the NLRB’s expenses because government attorneys receive a fixed salary and do not bill a client for their services, and because pursuing a contempt action imposes additional costs on the government in the form of foregone opportunities to pursue other cases.  Accordingly, the Court held that the NRLB was entitled to prevailing market rates.

No Attorney’s Fees For Paralegal Services Under EAJA

Richlin Sec. Serv. Co. v. Chertoff, 2006 U.S. App. LEXIS 31749 (Fed. Cir. Dec. 26, 2006)

After litigation over a contract dispute, the Department of Transportation Board of Contract Appeals (Board) ordered the government to pay wages, payroll taxes, and insurance premiums to Richlin Security Company.  Richlin requested attorney’s fees and assorted costs and expenses under the Equal Access to Justice Act.  Maintaining that the EAJA does not provide for paralegal fees under the fees portion of the statute, the Board reimbursed Richlin for paralegal services at $35 per hour under the expenses part of the statute.  Richlin objected, but the Federal Circuit affirmed.  It noted that the EAJA provides only for the fees of attorneys, agents, and experts, with no mention of paralegals.  Moreover, the legislative history indicates no intent to include paralegals under the fees portion of the statute.  Accordingly, paralegal services are not recoverable as fees, but only as expenses to the attorney.

Law Firm Representing Itself Eligible for Fees

Baker & Hostetler LLC v. United States DOC, 2006 U.S. App. LEXIS 31454 (D.C. Cir. Dec. 22, 2006)

Law firm Baker and Hostetler, representing lumber companies, filed a lawsuit under the Freedom of Information Act (FOIA) to obtain documents from the Department of Commerce (DOC) related to its investigation of Canadian lumber imports. Throughout this litigation, the DOC provided the law firm with numerous related documents.  Baker and Hostetler argued that due to its success in obtaining those documents, it was a “complainant” that “substantially prevailed” in the FOIA litigation, hence eligible for attorney's fees.  The District Court denied the fee request because the law firm represented itself. The D.C. Circuit reversed, in part because the FOIA attorney's fees provision on its face contains no exception for organizations representing themselves.  Moreover, the court noted that while in Kay v. Ehrler, 499 U.S. 432 (1991) the Supreme Court carved out an exception from fee-shifting statutes for individual complainants representing themselves, it specifically held that the exception did not extend to organizations. The D.C. Circuit joined the Fourth and Fifth Circuits in finding law firms eligible for fees under fee-shifting statutes when they represent themselves.