SHARON LOVELACE BLACKBURN, Senior District Judge.
This case is before the court on Motion for Attorneys' Fees and Costs,
Respondents, Ridgewood Health Care Center, Inc. and Ridgewood Health Services, Inc. [the Ridgewoods], ask the court to award them attorneys' fees pursuant to the 28 U.S.C. § 2412(d)(1) of the Equal Access to Justice Act [EAJA], which provides:
28 U.S.C. § 2412(d)(1). To satisfy the terms of this section, the Ridgewoods must show or allege: (1) they are the prevailing party in this action brought by the United States, (2) their Motion for Attorneys' Fees was timely filed, (3) the position of the United States was not substantially justified, and (4) there are no special circumstances that make an award of attorney's fees unjust. Canady v. Sullivan, 893 F.2d 1241, 1243 (11th Cir. 1990). "The absence of any one of the above factors shall preclude an award of fees." Id. However, if the Ridgewoods demonstrate their entitlement to an EAJA award, "there remains the question whether the
The Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), set forth the following principals that "are generally applicable in all cases in which Congress has authorized an award of fees to a `prevailing party:'"
Hensley, 461 U.S. at 433-34.
The Director contends that his position in seeking injunctive relief pursuant to Section 10(j) of the National Labor Relations Act ["NLRA"] was substantially justified because an injunction was necessary to preserve the Board's remedial authority by preventing irreparable harm to employees' statutory rights:
(Doc. 36 at 3.)
The Ridgewoods argue, "[B]ecause the Director lacked specific evidence that the unfair labor practices alleged were `egregious' or that `without such relief, any final order of the Board will be meaningless or so devoid of force that the remedial purposes of the NLRA will be frustrated,' the Director was not `substantially justified' in seeking § 10(j) relief in this Circuit, and the Court should grant Respondents' Motion." (Doc. 37 at 2.)
"The government bears the burden of showing that its position was substantially justified." United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997)(quoting City of Brunswick v. United States, 849 F.2d 501, 504 (11th Cir. 1988)) And, "The government's position is substantially justified under the EAJA when it is `justified to a degree that would satisfy a reasonable person' — i.e. when it has a reasonable basis in both law and fact." Id. (quoting United States v. Douglas, 55 F.3d 584, at 588 (11th Cir. 1995)(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988))). "`[T]he legal merits of the government's position' does not address simply whether the Government won or lost, because `the Government . . . could take a position that is substantially justified yet lose.' The issue is not whether the Government's position was correct but whether it was `reasonable,' which depends largely on the `clarity of the governing law.'" Nat'l Fed'n of Republican Assemblies v. United States, 263 F.Supp.2d 1372, 1378 (S.D. Ala. 2003)(quoting Pierce, 487 U.S. at 569). The government's position may be "unreasonable under the law of this Circuit," if it reli[es] on a legal theory that has been clearly and repeatedly rejected by [the Eleventh Circuit]." Enerhaul, Inc. v. N.L.R.B., 710 F.2d 748, 751 (11th Cir. 1983).
As set forth in detail in the court's Memorandum Opinion, the law of this Circuit requires the Director to show that an interim injunction, pending the final decision of the NLRB, is "just and proper." N.L.R.B. v. Hartman & Tyner, Inc., 714 F.3d 1244, 1250 (11th Cir. 2013)(citing Arlook v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188-89 (5th Cir. 1975)). The former Fifth Circuit, in a decision binding on this court, held:
Pilot Freight, 515 F.2d at 1192 (5th Cir. 1975)(emphasis added);
In this case, the Director did not present evidence of egregious or extraordinary unfair labor practices. Moreover, he relied on a generalized argument that a § 10(j) injunction was "just and proper" because (1) this case was a successorship case and (2) other courts had granted temporary injunctions in successorship cases. The evidence he did cite from the transcript was largely insufficient to support his argument or actually contradicted his argument.
Therefore, the Ridgewoods' Motion for Attorneys' Fees is due to granted.
The Director contends:
(Doc. 36 at 15-16 [footnote omitted; emphasis in original].) In response to the Director's opposition, the Ridgewoods reduced their claim for attorney's fees for the challenged billable hours by 2.8 hours to account for time spent negotiating a settlement of this matter; they argue the remaining time was reasonably spent in defense of this case. (Doc. 37 at 9 and n.5.) The court agrees. Therefore, no further adjustment is warranted.
"To the extent that [the pre-Petition] hours can be attributed to the civil action, they are permissible under the EAJA." Pollgreen v. Morris, 911 F.2d 527, 536 (11th Cir. 1990). The court finds that counsel's time spent in preparation for the hearing on the Director's Petition before the Petition was actually filed is time that can be attributed to the civil action. As the court gleans from the record, the filing of the § 10(j) Petition was a near certitude weeks before the Director actually filed it. Given complicated and crowded calendars, counsel could not guarantee that, once the court set the hearing, she would have adequate time to prepare. Certainly, the amount of time claimed to be in preparation for the hearing is not excessive. Therefore, the court finds no deduction to the claimed hours is warranted for time spent preparing for the hearing on the Director's Petition.
The Director objects to 3.4 hours of attorney Carlton Hilson; he argues:
(Doc. 36 at 16.)
The law is well settled that "fees for fees" — attorneys' fees for time spent seeking EAJA fees — are allowable under the EAJA. Jean v. Nelson, 863 F.2d 759, 779-80 (11th Cir. 1988). "Since [the EAJA] primarily assures prevailing [parties] their reasonable attorney's fees, it would be ironic if claiming those very fees — which would have been unnecessary if not for the government action — was the one act for which a claimant could not receive compensation." Id. at 779 (quoting Trichilo v. Secretary of Health and Human Services, 823 F.2d 702, 707 (2d Cir. 1987)). Therefore, the Eleventh Circuit has held, "It would contravene Congress's purpose in passing the EAJA to require under all circumstances that successful EAJA fee applicants bear the costs of obtaining EAJA fees." Id. at 780. The court finds the Director's objection to these fees as "not exclusively related to defending against the petitioned-for injunction" is due to be overruled.
The court finds no "dubious activity" regarding the revision to Brown's affidavit. Certainly as a document is drafted and edited changes will be made either to correct errors found in proofreading or because some facts are removed or added as needed. The court finds no evidence to suggest that Hilson fabricated Brown's testimony or any other indication that Brown's testimony was not true. The court finds no deduction for the time spent revising Brown's affidavit is warranted.
Therefore, the court finds that the Ridgewoods are entitled to attorneys' fees of $45,824.35, which is 246.5 hours at $185.90 per hour.
The Director objects to the hours and rate claimed by the Ridgewoods "for work performed by paralegal Sara E. McAlister." (Doc. 36 at 17.) He argues:
(Id. at 17-18.) In reply, the Ridgewoods contend, "The recent decisions of this court reflect that $127.50 per hour is a reasonable hourly rate for paralegals. See, e.g., Evans v. Books-A-Million, 907 F.Supp.2d 1284, 1307-08 (N.D. Ala. 2012)(awarding paralegal a rate of $145 per hour); see also Ruderinan ex rel. Schwartz v. Washington Nat. Ins. Corp., 465 Fed. Appx. 880, 882 (11 th Cir. 2012)(awarding paralegal rate of $125)." (Doc. 37 at 10.) Neither of the decisions cited by the Ridgewoods involved a claim for fees under the EAJA.
The Eleventh Circuit has held: "In the context of a Title VII case, we have held that paralegal time is recoverable as `part of a prevailing party's award for attorney's fees and expenses, [but] only to the extent that the paralegal performs work traditionally done by an attorney.' The same analysis applies [in an EAJA case]." Jean, 863 F.2d 759, 778 (quoting Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. Unit B 1982))(emphasis in Jean).
Williams v. R.W. Cannon, Inc., 657 F.Supp.2d 1302, 1310-11 (S.D. Fla. 2009).
The Director challenges two entries: (1) "Compilation of materials re: Plaintiff's Motion for Reconsideration and Errata of same," on January 30, 2015, and (2) "Revising Response to Motion to Supplement Record and electronic filing of same" on April 8, 2015. The court finds that these entries appear to be for clerical work, not work traditionally performed by an attorney. Therefore, the Director's objections to these hours claimed are sustained and the Ridgewoods' Motion for Attorneys' Fees will be denied as to these hours.
The court notes that the Ridgewoods have not established the "prevailing market rate" for McAlister. However, Ronald Flowers, counsel for the Ridgewoods, testified that McAlister had been a paralegal with the firm since 2012 and the $127.50 per hour billed to the Ridgewoods was a discount of her normal hourly rate. (Doc. 34 at 36, 38.) The Director contends that $85 per hour is a reasonable rate for McAlister. (Doc. 36 at 18.) Considering all the circumstances, including rates this court has award other paralegals,
Therefore, the court finds a reasonable fee for the services rendered by Sara McAlister is $191.25, which is 1.5 hours at $127.50 per hour.
For the foregoing reasons, the court is of the opinion that the Ridgewoods are entitled to attorneys' fees in the amount of $46,015.60. An Order granting in part and denying in part the Motion for Attorneys' Fees and Costs, (doc, 34), and awarding the Ridgewoods $46,015.60, representing their attorneys' fees in this action, will be entered contemporaneously with this Memorandum Opinion.
