Crumbaker v. Merit Systems Protection Bd., 85-1982

• Decision Date: 08 January 1986
• Docket Number: No. 85-1982,85-1982
• Citation: 781 F.2d 191
• Parties: William H. CRUMBAKER, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 191

781 F.2d 191

William H. CRUMBAKER, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Appeal No. 85-1982.

United States Court of Appeals, Federal Circuit.

Jan. 8, 1986.

Sheri Frumer, Gardere and Wynne, Dallas, Tex., argued, for petitioner. With her on the brief was Ronald M. Gaswirth, Dallas, Tex.

Stephanie Conley, Merit Systems Protection Bd., Washington, D.C., argued, for respondent. With her on the brief were Evangeline W. Swift, Gen. Counsel, Mary L. Jennings, Associate Gen. Counsel, for Litigation and David Kane, Reviewer, Washington, D.C., for Litigation.

Before MARKEY, Chief Judge, DAVIS, and BISSELL, Circuit Judges

BISSELL, Circuit Judge.

Petitioner Crumbaker appeals from a final decision of the Merit Systems Protection Board (Board), Docket No. SE07528090084ADD, reported at 24 M.S.P.R. 627 (1984), asserting error in the quantum of fees awarded. We reverse and remand.

BACKGROUND

On February 29, 1980, the agency removed Crumbaker from his position with the Department of Labor. He appealed that action to the Board. The presiding official found that only two of three charges were sustained and that removal was not an appropriate penalty. The full Board granted the agency's petition for review and modified to a fourteen-day suspension the agency's removal action.

Crumbaker subsequently filed with the Board a motion for attorney fees based on 5 U.S.C. Sec. 7701(g)(1). The presiding official found that the fees were incurred and that Crumbaker was the prevailing party. He also found that fees were warranted in the interest of justice because the agency acted in bad faith. He then considered what amount of fees would be reasonable by computing a lodestar figure and then adjusting that figure based on the contingent nature of the fee. In computing the lodestar figure, the presiding official reviewed the customary hourly billing rate and the number of hours devoted to the case, reduced both the rate and the hours claimed by the senior partner (Gaswirth) and the principal associate (Morris), and then multiplied the resulting rates and hours, the product being the lodestar figure. Next, the presiding official considered the claimed 100% upward adjustment on the contingency portion of the fee, and reduced that adjustment to about 25%. He did not address the adjustment claimed due to delay in receipt of payment.

Crumbaker appealed to the full Board, challenging the reduction in rates, hours, and lodestar adjustment, as well as the failure to address a supplemental fee request.

The Board modified the presiding official's fee award.

The Board found that the actual rates claimed were reasonable and in accord with prevailing community standards. Accordingly, the Board, after correcting the presiding official's misreading of some claimed rates, awarded the rates claimed, except for the rate claimed for ten hours of travel time. The Board held that it was inappropriate to compensate travel time at the same rate as legal work and so awarded a rate of $20 per hour.

The Board reviewed the hours awarded in each of the four phases of the case, and corrected the presiding official's several mistakes in addition. The Board also corrected his failure to address the request for preparing a post-trial brief and a reply brief, as well as his failure to address the request for the lead counsel's time in the last phase. The Board awarded the amounts claimed for those two requests, but otherwise made no change to the total number of hours awarded by the presiding official.

The Board next reviewed a supplementary fee request for, among others, attempts to compel agency compliance with the Board's order, a request the presiding official failed to address. The Board found the requested amount reasonable and added that amount to its fee award. This is not an issue on appeal.

Finally, the Board reviewed the requested adjustments to the lodestar figure and found that any upward adjustment was unwarranted.

On appeal to us Crumbaker alleges error in the Board's reduction of the claimed billing rate for travel time, reduction of the claimed number of billable hours, and denial of an adjustment in the lodestar figure.

OPINION

I Travel Time

Crumbaker asserts that the Board's decision to reduce the billing rate for travel time is contrary to law. We agree.

In its decision, the Board relied on one of its own cases, Mitchell v. Department of Health and Human Services, 19 M.S.P.R. 206 (1984). In that case the Board stated that:

lawyers should not be compensated at their usual rate for work which is normally done by nonlegal personnel such as clerical or paralegal workers. ... Similarly, we believe it is inappropriate for counsel's travel time to be compensated as legal work, and we adopt the presiding official's proposed $20 an hour for travel time as the presumptive appropriate rate, absent convincing evidence that the lawyer's own rate or some other rate is the general billing practice in the community.

Id., at 214-215.

Crumbaker argues that the Board's decision in his case is inconsistent with its own analysis in Mitchell which focused on the general billing practice in the community, that is, the fair market value of the attorney's services. We, however, do not rest our decision on such an argument.

The government defends the Board decision by citing a number of district court cases arguably consistent with it. See, e.g., Sun Publishing Co. v. Mecklenburg News, Inc., 594 F.Supp. 1512 (E.D.Va.1984); Davis v. Reed, 72 F.R.D. 644 (N.D.Miss.1976). Of course, there are also cases to the contrary, both in the district courts, see, e.g., Rakovich v. Wade, 602 F.Supp. 1444, 1451 (E.D.Wis.1985); International Wood Processors v. Power Dry, Inc., 598 F.Supp. 299, 303 (D.S.C.1984), and in the circuit courts, see, e.g., Henry v. Webermeier, 738 F.2d 188 (7th Cir.1984). We are persuaded that the analysis in Henry v. Webermeier is the better reasoned approach:

Probably [the appropriate billing rate] is the same billing rate as would be appropriate for the other time the lawyers put in on the case. When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time, except when they are able to bill another client for part of the travel time (a lawyer might do work for client A while flying on an airplane to a meeting with client B). And if they charge their paying clients for travel time they are entitled to charge the defendants for that time in a case such as this where the plaintiffs have shown a statutory right to reasonable attorneys' fees. Of course, if the travel is unnecessary the time spent in travel should be subtracted out, cf. Hensley v. Eckerhart, , 103 S.Ct. [1933] at 1939-40 ; but that, as we have said, is not an issue here. If, though reasonable in terms of the amount of time consumed, the travel is unnecessarily luxurious, the court should not reimburse the plaintiffs for the entire out-of-pocket expenses of travel; but that is a completely separate issue from the hourly billing rate and an issue that the defendants will be entitled to explore on remand. The presumption, which the defendants have not attempted to rebut, should be that a reasonable attorney's fee includes reasonable travel time billed at the same hourly rate as the lawyer's normal working time.

Id. at 194; accord Craik v. Minnesota State University Board, 738 F.2d 348, 350 (8th Cir.1984). This approach is consistent with the purpose of 5 U.S.C. Sec. 7701(g)(1), which has "a general goal of removing impediments to the litigation of a meritorious claim." Sterner v. Department of the Army, 711 F.2d 1563, 1570 (Fed.Cir.1983); cf. Keely v. Merit Systems Protection Board, 760 F.2d 246, 249 (Fed.Cir.1985) (purpose of Equal Access to Justice Act, eliminating legal expense as barrier to challenges of unreasonable governmental action, similar to purpose of Sec. 7701(g)(1) ).

In addressing the presiding official's reduction of the claimed rate, the Board noted that the billing rates charged to Crumbaker "were charged to all clients for whom they worked," and the Board found that "the actual rates claimed by counsel are reasonable and in accord with prevailing community standards." Crumbaker v. Department of Labor, 24 M.S.P.R. at 631 (emphasis in original). Thus, the Board's reduction in the rate for travel time was not because that rate was other than the prevailing rate. Rather, it was because the Board regarded compensation for counsel's travel time at the same rate as other legal work "inappropriate." Id., at 632. That decision is not in accordance with law and we reverse it. 5 U.S.C. Sec. 7703(c)(1) (1982).

II Billable Hours

Crumbaker also asserts that the Board's decision to reduce the number of documented hours is arbitrary, capricious, and contrary to law. We agree.

The Supreme Court addressed the issue of billable hours in the context of a district court's determination of a reasonable fee:

The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.

The district court also should exclude from this initial fee calculation hours that were not "reasonably expended." S.Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, 'billing judgment' is an important component in fee setting. It is no less important here. Hours that are not...