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May 7, 1998

ALEXIS M. HERMAN, Secretary of Labor, Defendant.

The opinion of the court was delivered by: OBERDORFER


 A Memorandum and Order of December 17, 1997 resolved the majority of issues in plaintiff's long-pending fee application, and invited the parties to provide further information pertaining to the single outstanding issue--compensation for services provided by paralegal James Moore. Defendant filed a Response on January 14, 1998, and plaintiff filed a supplemental Submission on February 4, 1998. On February 16, 1998, plaintiff filed a "Motion for Reconsideration of Certain Limited Aspects of the Court's Orders of December 17, 1997 and January 30, 1998." Defendant opposed this motion on February 27, 1998. For reasons stated herein, plaintiff is entitled to $ 25,441.50 for services rendered by James Moore. Plaintiff's motion for reconsideration is denied, except that plaintiff will be compensated for an additional 35 hours of work performed in 1992.



 Plaintiff moves for reconsideration of four previously decided issues. First, plaintiff argues that, contrary to the Order of January 30, 1998, he should now be permitted to supplement his fee request with claims for hours worked in the years 1995 and 1996, i.e. two to three years ago. Plaintiff faults the Court for not previously specifying a deadline for filing any supplemental petitions. However, the Court had no reason to establish such a deadline, where plaintiff gave no indication--in over eighteen filings, two motions hearings, and seven days of evidentiary hearings that have occurred since he last supplemented his fee request on December 13, 1995--that he intended to file any further supplements. While plaintiff argues that there is no firm "rule" that specifies when a supplement to a fee request is to be submitted, the fee petition process is certainly governed by a rule of reasonableness. For reasons stated in the January 30, 1998 Memorandum and in Defendant's Opposition to the motion for reconsideration, plaintiff's request will be denied.

 Second, plaintiff requests that he be allowed to petition for fees based on the time expended in conjunction with the evidentiary hearings before Magistrate Judge Kay in 1997. For reasons stated in the January 30, 1998 Memorandum, that request will also be denied.

 Third, plaintiff states that the December 17, 1997 Memorandum incorrectly denied plaintiff's request for attorney hours expended on the defendant's motion for summary affirmance. Defendant concurs that, in fact, plaintiff prevailed on the motion for summary affirmance. See Defendant's Oppos. at 4. Accordingly, the hours granted in the December 17, 1997 Memorandum are amended as follows:


9/21/92 - 9/22/92. Granted: 5 hours. To the extent that this task included both reading defendant's motion for summary affirmance, and researching ("understanding") the standards for granting such a motion, five hours could reasonably have been expanded on this activity.


9/22/92 - 9/27/92, 9/29/92 - 10/5/92. Granted: 30 hours. In light of the fact that plaintiff had lost on summary judgment in the District Court, and that the summary affirmance motion could be dispositive of his claim in the Court of Appeals, thirty hours is a reasonable period of time for plaintiff to have expended on drafting his opposition.

 In sum, plaintiff will be compensated for an additional 35 hours of work performed in 1992.

 Finally, plaintiff requests consideration of the fees granted for work performed by attorney Christopher Teras. Plaintiff's counsel states that he "can find no evidence that he [Teras] recorded more than 24 attorney hours for a day as suggested" in the December 17 Memorandum. Plaintiff's attention is directed to pages 71 through 72 of the transcript of the January 24, 1997 hearing, and to the underlying documents discussed therein. More importantly, plaintiff's attention is again directed to pages 65 through 79 of the same transcript, which suggest that the hours claimed by Teras were based on speculative, retrospective estimates. Plaintiff also suggests that it is inconsistent to reduce the hours billed by Teras in 1995, the year in which he began to keep contemporaneous time records, but grant 100% of the hours billed by attorney Sean Purcell in the same year. Purcell did not become involved in plaintiff's case until June of 1995. See Feb. 19, 1997 Tr. at 36. The work he performed was straightforward legal work pertaining to plaintiff's attorneys' fee petition. Id. at 40. By contrast, a certain percentage of the work performed by Teras on plaintiff's fee petition in 1995 must be attributed to the need to calculate, recalculate, and explain his own hours as claimed in the fee petition, a task which would have been unnecessary but for his failure to keep accurate records of his time prior to 1995. In this sense, Teras is similarly situated not to Purcell, but to plaintiff Kooritzky. See December 17, 1997 Memorandum at 15. Moreover, as stated in the December 17 Memorandum, the reduction in hours claimed by Teras also reflects a concern about duplicative billing (i.e. for work identical to that performed by Kooritzky) that does not apply to Purcell, who seems to have been assigned discrete tasks. See December 17, 1997 Memorandum at 20; Feb. 19, 1997 Tr. at 41 (in which Purcell testifies that he only spoke with Kooritzky "a couple of times" while doing his work). Plaintiff's request for reconsideration of hours attributed to Teras will be denied.

 In sum, plaintiff's motion for reconsideration will be denied, except with respect to the calculation of attorney hours worked by plaintiff. After the 35-hour adjustment explained above, plaintiff is entitled to the following fees for his own work: 1991: 136 hrs x $ 113.48 = $ 15,433.28 1992: 122.5 hrs x $ 116.33 = $ 14,250.43 1993: 142.5 hrs x $ 120.00 = $ 17,100.00 1994: 44.1 hrs x $ 121.73 = $ 5,368.29 1995: 30.75 hrs x $ 124.88 = $ 3,840.66 Total = $ 55,992.06


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