doing law-clerk-type chores, plaintiffs claim $ 5,228.00, for 65.35 hours at $ 80 per hour. (Reply Ex. 1.)
The work of paralegals and law clerks is compensable, as part of a "reasonable attorney's fee," according to the practice prevailing the legal community. See Jenkins, 491 U.S. at 285-87. The prevailing practice in the District of Columbia is for lawyers to bill clients for the work of their law clerks at the prevailing market rate.
Plaintiffs have submitted reasonably persuasive, effectively unrebutted, evidence that the current prevailing market rate for law clerks in the District of Columbia is $ 80 per hour. (The hourly rate plaintiffs claim -- $ 80 per hour -- is the rate that the U.S. Attorney's matrix would award for the year 1992-93 if the matrix were extended to this year according to the matrix's own extrapolation method.)
Plaintiffs have documented the time of their law students and of Ms. Weiss in sufficient detail, listing services performed by date and time. (Reply Ex. 6). Thus, plaintiffs may recover their requested fees for their law clerks.
C. Current Rates
Plaintiffs request a fee award calculated at current, not historical, rates. Because awarding current rates may mitigate the hardship of the seven years' delay between the first billing in this case and final payment,
plaintiffs shall be compensated at current market rates.
Plaintiffs seek an assortment of out-of-pocket costs incurred in the course of this litigation, and the question before this court is which of these costs Congress has authorized this court to shift to defendants. In § 1988, Congress has authorized the shifting of only those out-of-pocket costs that are customary elements of an "attorney's fee"; in 28 U.S.C. § 1920, Congress has authorized the shifting of other out-of-pocket costs. This court may shift only those costs that fit into one of these two categories.
The former category -- encompassing all customary elements of an "attorney's fee" -- includes all those out-of-pocket expenses that have "traditionally been included in calculations of the lawyers' hourly rates," including those out-of-pocket costs that many lawyers have recently removed from their hourly rates and now bill separately to the client.
Other statutes, notably 28 U.S.C. § 1920, determine which items of expense are included in the latter category.
These include "those costs incurred by a party to be paid to a third party, not the attorney for the case, . . . including, among others, docket fees, investigation expenses, deposition expenses, witness expenses, and the costs of charts and maps." Northcross, 611 F.2d at 639.
A. Costs Incurred by Plaintiffs' Counsel
Plaintiffs claim reimbursement for two sets of expenses incurred in this litigation: costs their counsel incurred, and costs plaintiffs themselves incurred. Under the first heading, plaintiffs claim compensation for costs of deposition transcripts, subpoenas, photocopying, postage, complaint filing fee, long distance telephone calls, messenger service, and local transportation and parking that their counsel incurred litigating Sexcius.
1. Costs Traditionally Included in an "Attorney's Fee "
Reasonable photocopying, postage, long distance telephone, messenger, and transportation and parking costs are customarily considered part of a reasonable "attorney's fee."
If plaintiffs' request for these costs are sufficiently well-documented and reasonable, plaintiffs may recover these out-of-pocket expenses pursuant to the statutory authority of § 1988 to shift "attorney's fees."
Defendants have conceded that the amounts plaintiffs have claimed in photocopying, postage, and long distance telephone calls costs are "reasonable expenses." (Defs.' Opp'n, at 25.) However, defendants do challenge plaintiff's counsels' travel expenses and messenger service expenses as insufficiently documented. (Defs.' Opp'n, at 26.) Defendants are correct that plaintiffs' original request for messenger service costs was too high. However, in their reply memorandum, plaintiffs eliminated all hourly messenger charges and requested compensation for only the remaining standard fees. (Reply Ex. 10.) These standard fee charges are well-documented and reasonable, and plaintiffs may recover them.
Similarly, in their application, plaintiffs claimed $ 123.60 for their counsels' local transportation and parking costs. After defendants challenged this amount as unsupported, plaintiffs cut from their request all but the well-documented costs, requesting only $ 108.50 in charges listed by date and amount. Plaintiffs may recover this reduced amount.
2. Costs Shifted by § 1920
The costs associated with deposition transcripts are clearly compensable under § 1920(4), if the costs are reasonable, the expenditures well-documented, and the depositions "necessarily obtained for use in the case." 28 U.S.C. § 1920(4). See Robertson v. McCloskey, 121 F.R.D. 131, 134 (D.D.C. 1988) ("costs associated with taking depositions" are taxed under § 1920(4) as transcripts "necessarily obtained").
Because defendants have conceded that plaintiffs' deposition transcript costs are "reasonable,"
and because the costs of the deposition transcripts are well-documented, plaintiffs may recover their claimed deposition costs. Plaintiffs may also recover their claimed filing fees.
3. Costs that Cannot be Shifted
Plaintiffs' subpoena costs may not be shifted to defendants. The cost of subpoenas is not a customary element of an attorney's fee, and it is clearly not taxed under § 1920.
B. Costs Incurred by Plaintiffs Themselves
Plaintiffs also seek compensation for a second category of costs: the costs incurred not by counsel, but by plaintiffs themselves. Plaintiffs themselves paid out-of-pocket for some of the photocopying and postage costs of their case, incurred some travel expenses going to and from litigation-related events, and lost a portion of their wages while litigating this case.
1. Costs of Photocopying, Postage, and Travel
In order to save money, plaintiffs' counsel recruited plaintiffs themselves to review and forward new documents to Ms. Weiss and to interview potential witnesses. In doing these tasks, plaintiffs incurred some photocopying and postage costs that their counsel could have incurred had counsel done the tasks in the first place. (Weiss Decl. (Application) at P 14.)
Because reasonable photocopying and postage are customarily considered part of a reasonable "attorney's fee," plaintiffs' out-of-pocket expenses would clearly be compensable if their counsel had incurred them first and then billed these costs to plaintiffs. See Northcross, 611 F.2d at 639. Denying plaintiffs compensation for these costs would force clients in the future to insist on the senseless formality of having their counsel incur out-of-pocket costs first (perhaps at higher expense) and bill them afterwards. Plaintiffs' requests for reimbursement of photocopying and postage costs are well-documented, and defendants concede the amounts claimed are "reasonable." (Defs.' Opp'n, at 25.) Plaintiffs may recover their out-of-pocket photocopying and postage costs.
However, plaintiffs may not recover their travel expenses. In her declaration, Ms. Weiss states that plaintiffs also incurred "travel" costs in the course of reviewing and forwarding new documents to counsel and interviewing potential witnesses. (Weiss Decl. (Application) at P 14). If this were true -- if, for example, plaintiffs had incurred travel costs running about town doing the sort of work that their lawyers would have done if plaintiffs themselves had not -- plaintiffs would have a plausible claim. They might have persuasively argued that they were simply incurring travel costs that their counsel would have billed to them anyway, had counsel performed the travel themselves.
However, the travel costs claimed by plaintiffs appear to be costs for which their counsel could never have billed them. Plaintiffs claim compensation for transportation and parking associated with court hearings and depositions, events that their counsel undoubtedly attended as well. (Pls.' Ex. 9 (Reply) at P B.) In this instance, plaintiffs were clearly not incurring costs in their counsels' stead. Rather than seeking compensation for the type of costs routinely incurred by lawyers and billed to clients, plaintiffs are attempting to claim compensation for their personal costs. Thus plaintiffs may not recover their transportation and parking costs that they themselves incurred.
2. Lost Wages
Plaintiffs also claim compensation for the wages they lost taking leave to assist in the development and trial of this case. Ms. Sexcius missed several days of work on unpaid leave in order to prepare for court appearances, appear in court, confer with counsel and potential witnesses, and review and prepare court documents. (Sexcius Decl. (Application) at P 1.) (Mr. Edmead appears to have taken time off work to make similar efforts to develop the case, but he has not submitted an affidavit stating that his work leave was unpaid.)
However, Congress has not authorized the courts to shift the expense of wages lost during the course of litigation. Lost wages are clearly not one of the elements of an "attorney's fee" shifted by § 1988. Elements of an attorney's fee must be, at a minimum, those costs that are incurred by the attorneys (or that easily could have been incurred by the attorneys, see supra (III)(B)(1)) and then billed to the clients. Plaintiffs' loss of wages, by contrast, is an out-of-pocket loss that has nothing to do with attorneys' billing practices. Nor are lost wages one of the costs Congress has shifted under § 1920 or some other statute. Section 1920 makes no mention of lost wages in its list of taxable costs, and this court knows of no other statute that expressly shifts lost wages to the losing party.
Because Congress has not empowered this court to shift the burden of lost wages under § 1988, § 1920, or other statute, this court cannot award plaintiffs the wages they lost during litigation. This conclusion conflicts with this Circuit's 1984 ruling that § 1988 shifts lost wages,
but it is faithful to the Supreme Court's 1991 ruling that unless an out-of-pocket expense is either a traditional element of a § 1988 "attorney's fee" award, or is expressly shifted by § 1920 or some other statute, federal courts lack power to shift the cost. In the present case, § 1988 and § 1920 "define the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further."
For litigating the merits of Sexcius and for litigating this fee petition, plaintiffs are awarded fees in accordance with the chart below:
Attorney Hours Market Rate Amount
-Original request 629.85 $ 260 per hour $ 163,761.00
-Supplemental request 22.85 $ 260 per hour $ 5,941.00
-Original request 249.35 $ 260 per hour $ 64,831.00
-Supplemental request 9.85 $ 260 per hour $ 2,561.00
Law Students 65.35 $ 80 per hour $ 5,228.00
Total Fees for Merits and Fee Litigation $ 242,322.00
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