Former Employees of BMC Software, Inc. v. United States Secretary of Labor

Slip Op. 07-174
UNITED STATES COURT OF INTERNATIONAL TRADE
_______________________________________
:
FORMER EMPLOYEES OF
BMC SOFTWARE, INC., :
Plaintiffs, :
Court No. 04-00229
v. :
UNITED STATES SECRETARY OF LABOR, :
_______________________________________:
Defendant.
[Calculating award to Plaintiffs for attorneys’ fees and expenses under the Equal Access to Justice
Act.]
Dated: November 28, 2007
Miller & Chevalier Chartered (James B. Altman and Kathleen T. Wach), for Plaintiffs.
Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Jane C. Dempsey), for Defendant.
MEMORANDUM OPINION
RIDGWAY, Judge:
In this action, former employees of Houston, Texas-based BMC Software, Inc. (“the
Workers”) successfully challenged the determination of the U.S. Department of Labor denying their
petition for certification of eligibility for trade adjustment assistance (“TAA”) benefits. See
generally Former Employees of BMC Software, Inc. v. U.S. Sec’y of Labor, 30 CIT ____, 454 F.
Supp. 2d 1306 (2006) (“BMC I”). The Workers were subsequently awarded attorneys’ fees and
expenses under the Equal Access to Justice Act (“the EAJA”), in an amount to be finally ascertained
Court No. 04-00229 Page 2
in accordance with the principles set forth in Former Employees of BMC Software, Inc. v. U.S.
Sec’y of Labor, 31 CIT ____, 2007 WL 2994605, Slip Op. 07-150 (2007) (“BMC II”).
Specifically, BMC II directed the Workers to file certain additional information required to
calculate the precise amount of their fee award – that is, information on the employment status of
each individual whose time was reflected in the Workers’ Application for Fees and Other Expenses
Pursuant to the Equal Access to Justice Act (the “EAJA Application”), as well as information on the
cost per hour to the law firm representing the Workers of each paralegal/legal assistant, law clerk,
summer associate, and other non-attorney whose time was reflected in the Workers’ EAJA
Application. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 38, Slip Op. 07-150 at 91-92; see
also Order (Oct. 15, 2007).
Now pending before the Court is the Workers’ Supplement to the Application for Attorneys
Fees and Costs (“Pls.’ Supplement”), as well as the Government’s Response thereto. See
Defendant’s Response to Plaintiffs’ Supplement to the Application for Attorney Fees and Costs
(“Def.’s Response”). The Workers’ Supplement advises that they “understand and accept the
Court’s decision [in BMC II] to disallow certain fees and expenses.” See Pls.’ Supplement at 2.
In accordance with the parties’ submissions, and in furtherance of BMC I and BMC II, the
Workers are awarded a total of $ 26,930.47 for services rendered by attorneys and non-attorneys,
as well as $ 277.65 in other expenses incurred, as outlined in greater detail below.
I. Analysis
BMC II analyzed the Workers’ EAJA Application in painstaking detail, as well as the
Government’s objections thereto, rejecting the Government’s threshold argument that its underlying
Court No. 04-00229 Page 3
position had been “substantially justified,” and that an award of attorneys’ fees and expenses was
therefore unwarranted. See generally BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 8-18, Slip
Op. 07-150 at 16-41. BMC II similarly rejected most of the Government’s objections to the time
expended by the Workers’ counsel. See generally BMC II, 31 CIT at ____, 2007 WL 2994605 at
** 18-40, Slip Op. 07-150 at 42-94.
However, BMC II disallowed certain hours devoted to public relations and government
relations-type work, because the specific tasks at issue could not be said to have been “related to the
successful representation of [the] client.” See BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 35-
36, Slip Op. 07-150 at 85-86 (quoting Davis v. City and County of San Francisco, 976 F.2d 1536,
1545 (9th Cir. 1992), reh’g denied, vacated in part, and remanded, 984 F.2d 345 (1993)).
Specifically, BMC II disallowed the time reflected in an entry dated March 2, 2005, which was
devoted to “[d]raft[ing] [a] description of BMC representation for pro bono publication” – a total
of 0.5 hours. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 35, Slip Op. 07-150 at 85. Also
disallowed was the time reflected in a March 7, 2005 billing entry – a total of 0.75 hours spent to
“[p]repare proposed draft of revised TAA statute . . . ; research regarding same.” See BMC II, 31
CIT at ____, 2007 WL 2994605 at ** 35-36, Slip Op. 07-150 at 85-86.
BMC II similarly disallowed time expended on internal law firm administrative matters
related to client billing. See BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 36-37, Slip Op. 07-
150 at 86-87. Disallowed in their entirety were the 0.75 hours spent on “[d]iscussion . . . regarding
issue of recovery of legal fees language for retainer letter; revis[ing] letter to reflect same,”
documented in an August 4, 2004 entry; the 0.5 hours spent to “[i]nvestigate whether retainer letters
Court No. 04-00229 Page 4
have been received from all clients; e-mail . . . regarding missing letter,” recorded in an October 27,
2004 entry; and the 0.25 hours spent to “[e]-mail client regarding mailing of follow-up retainer,”
reported in an entry dated October 28, 2004. In addition, an entry dated July 21, 2004 (which
recorded time devoted to numerous tasks, including “complet[ing] new matter form”) and an entry
dated August 1, 2004 (which documented time devoted to various tasks, including “[d]raft[ing]
retainer letter”) were docked 0.25 hours and 0.75 hours, respectively. See id.
BMC II further disallowed the 0.25 hours recorded in an entry dated July 20, 2005 – time
spent “[l]ocat[ing] case-related materials” after all briefing in the underlying litigation had been
completed, where there was no indication that the need to locate the file at that time was for the
benefit of the Workers. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 37, Slip Op. 07-150
at 87.
In addition, BMC II noted that various litigation support tasks documented in the billing
records submitted with the Workers’ EAJA Application were “best characterized as paralegal work,”
and thus were not compensable at attorneys’ rates or subject to a cost of living adjustment. See
BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 37-38, Slip Op. 07-150 at 88-92. However, as
BMC II further explained, where such tasks implicate some level of specialized training or
experience (even though they do not necessarily require a law degree), the work is compensable
under the EAJA at a lower rate. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 37, Slip Op.
07-150 at 89 (citation and footnote omitted).
BMC II specifically identified as paralegal-type work the 3.0 hours devoted to “[f]iling for
CIT password; researching case docket, court rules and forms,” recorded in a July 16, 2004 entry;
Court No. 04-00229 Page 5
the 2.5 hours spent “[p]rinting out case documents from docket database; preparation of draft PO
subscriptions,” documented in a July 20, 2004 entry; the 3.5 hours devoted to “[p]reparation and
filing of Motion, Order, PO Subscriptions, and Stipulation at Court of International Trade; service
of government and clients; copying and organizing documents for case file,” reported in a July 22,
2004 entry; the 2.5 hours spent on “[r]outing and distribution of service copies of letter and proposed
order to government and clients; researching and printing court rules re: time computation and
service procedures,” recorded in a July 27, 2004 entry; the 0.5 hours spent “[o]rganiz[ing] materials
and coordinat[ing] creation of case file in Records Department,” reported in an entry dated August
5, 2004; the 1.0 hour spent “[r]eview[ing] CIT website for instructions on filing documents
electronically . . . ; conference . . . regarding attention to CIT filing issues,” documented in a January
18, 2005 entry; the 1.0 hour devoted to “[p]repar[ation] [of] service copies and a Certificate of
Service for a BMC filing . . . .,” reported in a February 11, 2005 entry; and the 0.75 hours spent on
the same tasks, documented in a February 15, 2005 entry. See BMC II, 31 CIT at ____ & nn.82, 85,
2007 WL 2994605 at * 37 & nn.82, 85, Slip Op. 07-150 at 88-90 & nn.82, 85.
The entries listed immediately above – with the exception of the entry dated August 5, 2004
– reflect time that was, in fact, billed by non-attorneys. Compare EAJA Application with Pls.’
Supplement at 1 (specifying employment status of timekeepers). Compensable work that is actually
done by paralegals/legal assistants, law clerks, summer associates, and other non-attorneys is
compensable only at the cost to the law firm. See BMC II, 31 CIT at ____, 2007 WL 2994605 at
* 38, Slip Op. 07-150 at 90-91 (discussing Richlin Sec. Serv. Co. v. Chertoff, 472 F.3d 1370 (Fed.
Cir. 2006), cert. granted, 76 U.S.L.W. 3253 (U.S. Nov. 13, 2007) (No. 06-1717)). Thus, both
Court No. 04-00229 Page 6
because the work at issue was performed by non-attorneys and (independently) because of the nature
of the work, the time documented in the entries listed above – with the exception of the time
reflected in the August 5, 2004 entry – is compensable only at the cost to the law firm (a figure that
is discussed further below). Moreover, due to the nature of the work documented in the August 5,
2004 entry, the time recorded there is also compensable only at a non-attorney rate, even though the
work was actually performed by an attorney. See generally BMC II, 31 CIT at ____ n.84, 2007 WL
2994605 at * 37 n.84, Slip Op. 07-150 at 89 n.84.
Further, an entry dated July 23, 2004 records time spent on “[r]esearch regarding federal
government policy on alternative dispute resolution . . . .” BMC II rejected the Government’s
argument that that time should be disallowed because the research bore “no direct relation to the
litigation of [the Workers’] claims.” See BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 34-35,
Slip Op. 07-150 at 81-84 (citation omitted). However, the Workers’ Supplement now makes it clear
that the research was performed by a non-attorney. See Pls.’ Supplement at 1. Accordingly, the 0.5
hours spent on the research is similarly compensable only at a non-attorney rate (that is, at the cost
to the law firm).
Finally, BMC II deducted 2.0 hours from the 20.75 hours devoted to the preparation of the
Workers’ fee application, because the Workers did not prevail on their claim to a “special factors”
enhancement of their fee award. See BMC II, 31 CIT at ____, 2007 WL 2994605 at **38-40, 52,
Slip Op. 07-150 at 92-94, 124.
Taking into account the various deductions and disallowances summarized above, the
Workers are entitled to an award of fees for a total of 102.5 hours of attorney time expended in 2004,
Court No. 04-00229 Page 7
52.0 hours of attorney time expended in 2005, and 20.75 hours of attorney time expended in 2006,
as well as an award for a total of 15.25 hours of non-attorney time expended from 2004 through
2006.
All time in this action was billed at rates greater than the statutory fee cap of $125 per hour.
BMC II therefore held that the Workers’ counsel were entitled to an appropriate cost of living
adjustment. As set forth in BMC II, the applicable EAJA caps (adjusted to reflect cost of living
increases) are $147.63 per hour for attorney hours expended in 2004, $153.38 per hour for attorney
hours expended in 2005, and $158.50 per hour for attorney hours expended in 2006. See BMC II,
31 CIT at ____, 2007 WL 2994605 at ** 54-55, Slip Op. 07-150 at 129-30. Further, the Workers
have requested an award of $35.00 per hour for non-attorney hours, a figure which the Government
has advised is acceptable. See Pls.’ Supplement at 2; Def.’s Response at 2.1
1
The Workers’ Supplement explains the derivation of the figure of $35.00 per hour:
In accordance with [BMC II] and with the decision in Richlin Security Service Co.
v. Chertoff, 472 F.3d 1370 (Fed. Cir. 2006), counsel for the Workers understands
that the paralegal work involved in this matter should be reimbursed to the firm as
an expense, not as fees. However, Richlin did not provide an analysis of the
methodology used to calculate this expense. Instead, the Department of
Transportation’s Board of Contract Appeals “took ‘judicial notice of paralegal
salaries in the Washington DC area . . . [and] awarded paralegal expenses at a rate
of $35 per hour,” which the Court accepted. Id. at 1374. Rather than attempt to
separately determine the actual cost to the firm for the non-attorneys . . . who worked
on this matter, counsel for [the] Workers request that this same amount ($35/hour)
be applied to determine these expenses here.
Pls.’ Supplement at 1-2.
Court No. 04-00229 Page 8
II. Conclusion
So calculated, the Workers are entitled to an award of $ 26,930.47 for services rendered by
attorneys and non-attorneys in this matter, in addition to $ 277.65 for other expenses incurred, for
a total of $ 27,208.12. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 55, Slip Op. 07-150 at
131-32 (discussing award of expenses).
Accordingly, pursuant to the EAJA, Defendant shall pay to Plaintiffs a total of $ 27,208.12
for reasonable attorneys’ fees and expenses incurred in this action.
So ordered.
/s/ Delissa A. Ridgway
___________________________________
Delissa A. Ridgway
Judge
Dated: November 28, 2007
New York, New York