Taucher v. Rainer
| Decision Date | 24 November 2003 |
| Docket Number | Civil Action No. 97-1711 (RMU/JMF). |
| Citation | 292 F.Supp.2d 111 |
| Parties | Frank TAUCHER, et al., Plaintiffs, v. William J. RAINER, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Clint Bolick, Scott G. Bullock, William H. Mellor, Institute for Justice, Washington, DC, for Plaintiffs.
William S. Liebman, Michael J. Garawski, Martin B. White, U.S. Commodity Futures Trading Commission, Washington, DC, for Defendants.
Plaintiffs are commodity advisory publishers and their subscribers. Defendants are the Commodity Futures Trading Commission ("CFTC") and its commissioners.
Plaintiffs prevailed in their constitutional challenge to a CFTC regulation that required the publishers to register with the agency before publishing information on commodity trading. Taucher v. Born, 53 F.Supp.2d 464 (D.D.C.1999)(Urbina, J). The defendants' appeal was voluntarily dismissed and plaintiffs seek attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)1 ("EAJA").
In my first opinion in this case, I concluded that the non-profit, tax-exempt public interest law firm that represented the plaintiffs, the Institute for Justice, was not a prevailing party entitled to make an application for fees under EAJA. Therefore, only clients of the Institute for Justice could be prevailing parties, and, in order to qualify, they had to file certificates establishing their eligibility under EAJA by showing that they each had a net worth less than $2,000,000. 28 U.S.C. § 2412(2)(B). See Taucher v. Rainer, 150 F.Supp.2d 24, 26 (D.D.C.2001).
In a second opinion, I concluded that the defendants' position was not substantially justified and that there were no special circumstances that made an award of fees under EAJA unjust. Defendants also claimed, for reasons I will explain later, that none of the subscribers were prevailing parties. Since there were only three surviving publishers of the ten original plaintiffs, defendants insisted that plaintiffs should not receive more than 30% of the fees sought. I rejected this demand and indicated that I would make my decision based on the reasonableness of the fee request rather than reducing the fees by any strict percentage. Taucher v. Rainer, 237 F.Supp.2d 7, 16 (D.D.C.2002).
Plaintiffs have filed a now-amended fee petition in which the attorneys who worked on the case have each filed affidavits, attesting that attached to their affidavits is "an itemized, contemporaneously recorded statement of the hours and description of the services rendered" by each attorney. Affidavit of Dana Berliner, Plaintiffs' Reply to Defendants' Memorandum in Opposition to Plaintiffs' Amended Application for Fees under the Equal Access to Justice Act, Exhibit A.2
The statement of hours is a spreadsheet in the following format:
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Date Hours Worked Description of Activity3
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Plaintiffs then take the total hours worked by all the attorneys, 1,451 hours, and multiply them by $125 to arrive, after certain adjustments, to the hourly fee they seek, $190,581.80. That includes $9,377.50 due an expert witness for his fees and disbursements. Reply at 3 and attached Expert Witness Documentation.
Defendants advance the following objections to the petition:
1. Since the subscribers are not prevailing parties, all services done for the subscribers are not compensable.
2. Fees incurred opposing defendants' appeal are not compensable because plaintiffs did not prevail on appeal.
3. Fees pertaining to amici curiae (hereafter "amici") are not compensable because Judge Urbina's opinion made no mention of any argument made by amici.
4. The amount sought for 110 hours of trial time for the 6 lawyers who participated in the bench trial is excessive. Only the trial time of lead counsel, Scott Bullock, should be compensated.
5. The time spent briefing the issues resolved by my decision of December 18, 2002, Taucher, 237 F.Supp.2d at 7, was excessive and should be reduced.
6. Plaintiffs' counsel should not be compensated at the EAJA rate of $125 per hour until they first identify their usual billing rates.
7. The time spent by plaintiff's expert witness other than for the day before and the day of his attendance at trial should not be compensated due to the lack of documentation identifying the services he provided.
8. The time spent by plaintiffs' counsel advancing an argument that was rejected should not be compensated.
Finally, defendants make one additional objection that requires more explanation. When the case began, Bruce Babcock, a publisher, was ill. He subsequently died, and his case was dismissed on January 14, 1999. His estate never filed the required net worth statement. Neither did publisher, Frank Taucher, nor subscriber, Romer McPhee. Thus, two of the four prevailing publishers, Babcock and Taucher, and one of the five prevailing subscribers, McPhee, are not personally eligible for fees under EAJA because they never established a net worth of less than $2,000,000. See 28 U.S.C. § 2412(d)(2)(B).
The eligibility of the plaintiffs is explained by the following chart that appeared in my opinion of December 19, 2002:
Net
Receipt of Worth Less
Plaintiff Declaration than $2M
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1. Frank Taucher No n/a
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2. Stephen Briese Yes Yes
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3. Frederick J. Kastead4 n/a n/a
(replacing B.A. Thunman) (Yes) (Yes)
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4. Bruce Babcock
(Deceased) No n/a
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5. Robert Miner Yes Yes
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6. Galen Cawley Yes Yes
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7. Arthur Hayner Yes Yes
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8. Edward Hearne, III Yes Yes
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9. Roemer McPhee No n/a
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10. Roger Rines Yes Yes
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As is evident from the chart, those plaintiffs who submitted net worth statements meet EAJA's financial eligibility requirement. Plaintiffs Taucher, Briese, and Miner are publishers; Cawley, Hayner, Hearne, McPhee and Rines are subscribers. Hence, Taucher and Babcock, who are publishers, and McPhee, a subscriber, are ineligible for EAJA fees.
Defendants first argue that all of plaintiffs' time entries are so undetailed that disallowance of all the fees they seek is required. Opp. at 12-13. Failing that drastic remedy, defendants suggest that all time identified as having been spent on work for ineligible plaintiffs must be disallowed. Defendants would extend this to any entry where any of the ineligible plaintiffs is named, even if the entry seems to indicate work done on other matters during the same block of time. According to the defendants, the failure of plaintiffs' counsel to keep entries that separated work done for eligible plaintiffs from work done for ineligible ones means that they should forfeit compensation for any entry where they did work for both because it is now impossible for the court to differentiate compensable from non-compensable fees. Hence, defendants insist that, if plaintiffs are to recover at all, the court first deduct fees for work done that is, in and of itself, non-compensable, irrespective of the plaintiff on whose behalf it was done. Defendants argue that the resulting fees must then be reduced proportionately by the number of ineligible plaintiffs. Thus, of the $190,581.80 ultimately claimed by plaintiffs, defendants claim that, if plaintiffs recover any fees whatsoever, they should not be more than $70,119.30. Compare Opp. at 23 with Reply at 17.
For the reasons stated in this Opinion, I conclude that the subscribers are prevailing parties and that the time spent opposing the defendants and on matters pertaining to amici are compensable. I will also allow the expert's compensation in full. I agree with the defendants, however, that the time spent for the six lawyers at trial and on the briefing of the issues resolved by my December 12, 2002 decision was excessive, and I have arrived at more reasonable figures.
I do agree, however, that any work done on behalf of ineligible plaintiffs is not compensable, whether the entry shows that work was specifically done on behalf of that plaintiff or the entry does not permit me to differentiate between the work done for an ineligible plaintiff and that done for an eligible one. I will not, however, require any further reduction because three of the plaintiffs were ineligible under EAJA.
Finally, I will allow plaintiffs the EAJA rate of $125 per hour, and I will reject defendants' contention that they are seeking compensation for advancing an argument I rejected.
The plaintiffs in this case were either publishers or subscribers. Obviously, the publishers claimed a right to publish, free of any obligation to register, and the subscribers claimed a right to read what the publishers published. The defendants attacked the standing of both by moving to dismiss the case, but Judge Urbina denied the motion. In the pleadings filed...
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Taucher v. Brown-Hruska
...for fees under EAJA, the magistrate judge awarded plaintiffs' counsel $182,425.55 in fees in a subsequent decision. Taucher v. Rainer, 292 F.Supp.2d 111, 125 (D.D.C.2003). The CFTC appeals the magistrate judge's holding that its position was not substantially justified under EAJA and challe......