Opinion
Nos. 03-5372 MMC, 04-1306 MMC Consolidated Cases.
December 14, 2004
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS; VACATING HEARING (Docket No. 38)
Before the Court is plaintiff Ronald G. Mahtesian's ("Mahtesian") motion for an award of attorneys' fees and reimbursable costs and expenses. Defendants John W. Snow and the United States Department of Treasury (collectively, "Treasury") have filed opposition, to which Mahtesian has replied. Having reviewed the papers submitted in support of and in opposition to the motion, the Court deems the matter suitable for decision thereon, VACATES the hearing scheduled for December 10, 2004, and rules as follows.
BACKGROUND
Mahtesian, a "Causasian male of Middle Eastern national origin" over the age of 40, is employed as an Auditor with the Department of Justice's Office of the Inspector General. (See First Amended Complaint, Case No. 04-1306 ("04-1306 FAC"), ¶¶ 5, 9.) In the above-titled consolidated action, Mahtesian alleges that, on two occasions, Treasury improperly denied his application for a Supervisory Auditor position with Treasury's Office of the Inspector General.Mahtesian alleges he first applied for the Supervisory Auditor position in January 2001. (See id. ¶ 9.) According to Mahtesian, Treasury initially offered him the position, but, in March 2002, withdrew the offer after completing an "unauthorized" background investigation, which resulted in a "negative suitability" determination. (See id. ¶¶ 9, 13.) Treasury then immediately readvertised the position, and Mahtesian, in response, submitted a new application. (See id. ¶ 11.) Mahtesian alleges Treasury then selected for the position a "39-year-old Asian male of Chinese national origin, who [was] significantly less qualified than Mahtesian." (See id.)
To challenge the withdrawal of the offer, Mahtesian, on March 23, 2002, filed an appeal with the Merit Systems Protection Board ("MSPB"), challenging the negative suitability determination, alleging discrimination on the basis of race, color, national origin and age, and also alleging "numerous prohibited personnel practices, harmful procedural errors, and violations of the merit system principles, the Privacy Act, and the U.S. Constitution." (See id. ¶ 7.) The appeal was resolved at the administrative level when the MSPB, on February 2, 2004, issued a decision, finding in favor of Mahtesian with respect to the negative suitability determination and ordering Treasury to "cancel" that determination and place Mahtesian on a list of "eligibles" for the Supervisory Auditor position. (See id. ¶¶ 7, 13.) The MSPB, however, found that Mahtesian had failed to prove his claim of discrimination, and did not decide his other claims. (See id. ¶ 13.) Thereafter, on May 5, 2004, Mahtesian filed with the MSBP a motion for an award of attorneys' fees and costs incurred in connection with the MSBP proceedings. (See Langwiser Decl., filed November 5, 2004, ¶ 8.)
That motion is pending, (see id. ¶ 10), and appears to be fully briefed, (see Rizzo Decl., filed October 1, 2004, Ex. C at 24-25.)
To challenge the failure to hire him in favor of another applicant, Mahtesian, on April 3, 2002, filed an Equal Employment Opportunity ("EEO") administrative complaint with Treasury, alleging therein discrimination based on age, race, color and national origin, and retaliation. (See Complaint, Case No. 03-5372, ¶¶ 8, 11, 14.) According to Mahtesian, Treasury did not take final action on his EEO administrative complaint within the time provided by law. (See id. ¶ 11.)
In addition to the above-referenced administrative proceedings, Mahtesian filed with the MSPB an administrative complaint, alleging violations of the Veterans Employment Opportunity Act ("VEOA"), 5 U.S.C. § 3330a et seq. (See id. ¶ 17.) According to Mahtesian, the MSPB did not issue a final decision within the time provided by law, and he "elected to terminate the administrative proceeding before the MSPB." (See id.)
After exhausting his various administrative remedies, Mahtesian instituted the instant consolidated action, in which he alleges Treasury's withdrawal of the offer and failure to hire constituted violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 633a, and the VEOA. Mahtesian also alleges that the manner in which Treasury conducted the background investigation violated the Privacy Act, 5 U.S.C. § 522a et seq., the United States Constitution, and civil service regulations. Additionally, Mahtesian alleges Treasury, in violation of the Privacy Act and the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522 et seq., withheld from him certain records he had requested.
On August 10, 2004, Treasury served Mahtesian with an offer of judgment, pursuant to Rule 68 of the Federal Rules of Civil Procedure. The offer provided that judgment be entered against Treasury in the amount of $45,001, together with "the costs and compensable attorneys' fees [Mahtesian] has incurred in the above-captioned action, which includes two consolidated cases (Case Nos. 03-5372 MMC and 04-1306 MMC), prior to the date of this offer in an amount to be determined by the Court." (See Defendants' Offer of Judgment, filed August 24, 2004.) On August 23, 2004, Mahtesian accepted the Rule 68 offer, and, on August 24, 2004, the parties filed notice of the offer and acceptance. On August 25, 2004, the Court, in accordance with the offer and acceptance, entered judgment in favor of Mahtesian and against Treasury "in the amount of $45,001, together with costs and compensable attorneys' fees incurred in the above-titled actions and accrued through August 9, 2004, according to proof." (See Judgment, filed August 25, 2004.)
Mahtesian thereafter filed the instant motion seeking an award of fees and costs.
DISCUSSION
As an initial matter, the Court finds, and Treasury does not argue to the contrary, that, as a result of the entry of judgment in Mahtesian's favor, Mahtesian is the prevailing party in this consolidated action.
The parties dispute, however, whether (1) Mahtesian is entitled to attorney's fees incurred in the administrative proceedings undertaken prior to the filing of this consolidated action, (2) Mahtesian should be denied any fee award because his counsel is also his spouse and/or had an alleged conflict of interest, (3) the hourly rate Mahtesian seeks is appropriate, and (4) the number of hours for which Mahtesian seeks compensation should be reduced.
A. Fees Incurred in Administrative Proceedings
Mahtesian argues that the "compensable attorneys' fees" contemplated by Treasury's Rule 68 offer, and provided for in the Judgment, include fees incurred in the administrative proceedings he instituted prior to filing the complaints encompassed in the above-titled consolidation action.
In support of this argument, Mahtesian relies on 42 U.S.C. § 2000e-5(k), which provides that "[i]n any action or proceeding under [Title VII], the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee." See 42 U.S.C. § 2000e-5(k). The Supreme Court, in interpreting § 2000e-5(k), has held that "use of the broadly inclusive disjunctive phrase `action or proceeding' indicates an intent to subject the losing party to an award of attorney's fees and costs that includes expenses incurred for administrative proceedings." See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 61 (1980). The Supreme Court explained that the phrase "or proceeding" is not "mere surplusage," and provides district courts with the discretion to award attorney's fees incurred in exhausting a Title VII claim in a "federal administrative proceeding" or a "state administrative or judicial proceeding." See id. at 61-62.
Treasury argues that the express language of the Rule 68 offer, incorporated in the Judgment, limits the scope of compensable fees that can be awarded to those incurred in the "action" before this Court, and does not extend to the precursor administrative "proceedings." As Treasury notes, the Ninth Circuit has recognized that "the word `action,' in its usual legal sense means `a suit brought in a court; a formal complaint within the jurisdiction of a court of law' and `includes all the formal proceedings in a court of justice attendant upon the demand of a right . . . in such court." See Cann v. Carpenters' Pension Trust Fund, 989 F. 2d 313, 316 (9th Cir. 1993) (quoting Black's Law Dictionary 26 (5th ed. 1983) (ellipsis in original).
A party may waive his statutory eligibility for attorney's fees as part of a settlement agreement. See Evans v. Jeff D., 475 U.S. 717, 731-32 (1986) ("[W]hile it is undoubtedly true that Congress expected fee shifting to attract competent counsel to represent citizens deprived of their civil rights, it neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable; instead, it added them to the arsenal of remedies available to combat violations of civil rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney's fees.") A waiver or limitation on attorney fees contained in a Rule 68 offer of judgment "must be clear and unambiguous." See Nusom v. Comh Woodburn, Inc., 122 F. 3d 830, 833 (9th Cir. 1997) (holding Rule 68 offer providing for judgment in specified sum together with "costs" ambiguous as to whether "costs" included fees where offer "silent as to attorney fees").
Here, the Rule 68 offer was not silent either as to whether attorney's fees could be awarded or as to the scope of such fees. Rather, the parties clearly agreed to entry of a judgment under which Mahtesian was entitled to seek "compensable attorney's fees" and that he was limited to fees "incurred in the above-captioned action, which includes two consolidated cases (Case Nos. 03-5372 MMC and 04-1306 MMC)." (See Judgment (emphasis added).) Although Mahtesian argues, in summary fashion, that the offer was ambiguous, he fails to point to any ambiguity. Under the circumstances, the Court finds that the Rule 68 offer, and thus the Judgment based solely thereon, provides for an award of fees incurred in the district court "action," and not the precursor administrative "proceedings."
Moreover, the context in which the Rule 68 offer was made lends further support to Treasury's position on this point. Given that Mahtesian's motion for fees was pending before the MSPB at the time Treasury served the Rule 68 offer, it is not surprising the offer referred only to fees incurred in this "action," as the parties knew that the issue of the amount of fees properly awarded to Mahtesian for his attorney's work in the MSPB administrative "proceedings" was already pending before the MSPB.
Accordingly, Mahtesian's motion, to the extent he seeks an award of fees and costs incurred in the administrative proceedings, will be denied without prejudice to his pursuing the motion for fees and costs pending before the MSPB.
B. Special Circumstances
A prevailing plaintiff in a civil rights action "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal citation and quotation omitted). Treasury argues two such special circumstances are present in the instant case.
1. Marital Relationship
Treasury first argues that it would be unjust for Mahtesian to recover attorney's fees because his attorney, Barbara M. Rizzo ("Rizzo"), is also his spouse.
In support of this argument, Treasury relies on cases in which courts have found that an attorney representing his minor child in litigation is precluded from receiving a fee award. See, e.g., Woodside v. School District, 248 F. 3d 129, 131 (3rd Cir. 2001); Doe v. Board of Education, 165 F. 3d 260, 263 (4th Cir. 1998). This line of cases, observing that the Supreme Court, in Kay v. Ehrler, 409 U.S. 432 (1991), has held that an attorney representing himself pro se is not entitled to an award of attorney's fees, has extended the reasoning of Kay to cases in which a parent represents his minor child. See Doe, 165 F. 3d at 262-63. As the court noted in Doe, "the central thrust of Kay is that fee-shifting statutes are meant to encourage the effective prosecution of meritorious claims, and that they seek to achieve this purpose by encouraging parties to obtain independent representation." See id. at 263. The court went on to conclude that "the danger that a child's meritorious claim will be ineffectively prosecuted by an irrationally emotional attorney-parent is at least equal to the danger that the meritorious claim of a pro se civil rights plaintiff, who is also a lawyer, will be bungled without the assistance of an independent attorney." See id.
Treasury, however, cites no authority, and the Court has located none, in which the reasoning in Kay has been extended to cases in which the client and the attorney are spouses or, for that matter, adults in any type of familial relationship. Unlike the situation presented in the attorney-parent cases, an adult client can be presumed to be have made an informed choice as to whether his spouse can fairly represent his interests. Moreover, in the present case, Rizzo has experience litigating employment claims against the federal government, (see Rizzo Decl. ¶ 5), unlike the situation in the cited attorney-parent cases, in which the attorney did not have any experience with the pertinent procedure, see, e.g., Doe, 165 F. 3d at 263 (observing "[a]n attorney more familiar with the relevant procedures might well have obtained relief for [the child] more quickly and at far less cost" and "[m]ore experienced counsel" would "likely" not have failed to raise claims for interest and costs).
Treasury also notes that if Rizzo were to receive an award of attorney's fees, Mahtesian, as a result of California's community property laws, would have an interest in the proceeds. According to Treasury, this result would run afoul of the ethical prohibition against an attorney's sharing a fee with a non-attorney. See California Rule of Professional Conduct 1-320 (stating general rule that attorney may not "directly or indirectly share legal fees with a person who is not a lawyer"). Treasury cites no authority in support of their argument. If Treasury's argument were accepted, any married attorney who resides in a community property state presumably would be barred from receiving an award of attorney's fees because that attorney's spouse, whether or not the client, would have a community property interest in the proceeds of the award.
Accordingly, Treasury has failed to show that the existence of a marital relationship between Mahtesian and his attorney warrants a finding that an award of attorney's fees would be unjust.
2. Conflict of Interest
Treasury next argues that it would be unjust to award fees because plaintiff's attorney has a conflict of interest in representing Mahtesian against Treasury.
Rizzo, from July 28, 2002 through October 25, 2002, was employed as an Equal Employment Opportunity Specialist for Treasury, (see Bush Decl., filed November 5, 2004, ¶ 2), during which time Rizzo represented Mahtesian in his administrative proceedings against Treasury. Treasury argues that a conflict exists because, during the three months she was employed by Treasury, Rizzo "had the ability to obtain access to confidential information such as the personnel records and job applications of Treasury employees, and EEO complaints filed by Treasury employees and the investigations into those complaints." (See id. ¶ 3.)
The Rules of Professional Conduct of the State Bar of California provide that "[a] member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." See Cal. R. Prof. Conduct, Rule 3-130(E). Nonlegal services provided by an attorney to a recipient may be subject to conflict of interest rules where the attorney "has acquired confidential information in the course of such a relationship which will be, or may appear to [the recipient of the services] to be, useful in the attorney's representation in an action on behalf of a client." See William H. Raley Co. v. Superior Court, 149 Cal. App. 3d 1042, 1046-47 (1983) (internal quotation and citation omitted).
Members of the bar of this district must "[b]e familiar and comply with the standards of professional conduct required of members of the State Bar of California." See Civil L.R. 11-4(a)(1).
Mahtesian, in addition to arguing that no conflict exists, argues that Treasury has waived the issue of conflict by not raising it earlier. "It is well settled that a former client who is entitled to object to an attorney representing an opposing party on the ground of conflict of interest but who knowingly refrains from asserting it promptly is deemed to have waived that right." See Trust Corp. of Montana v. Piper Aircraft Corp., 701 F. 2d 85, 87 (9th Cir. 1983) (holding defendant waived right to seek disqualification of plaintiff's attorney based on alleged conflict, where defendant knew facts when case was filed but waited to seek disqualification until shortly before trial).
Treasury fails to set forth any reason to excuse its delay in raising the issue of conflict. Given that Treasury was Rizzo's employer prior to the filing of the instant consolidated action, Treasury cannot show, nor has it suggested, it was unaware of the facts giving rise to an alleged conflict prior to the filing of the instant motion. Rather, Treasury argues, irrespective of its failure to raise the issue earlier, the issue can be raised for the first time in opposing a motion for an award of fees. The cases on which Treasury relies for this proposition, however, are inapposite.
First, Treasury relies on Image Technical Service, Inc. v. Eastman Kodak Co., 136 F.3d 1354 (9th Cir. 1998). In Image Technical, the plaintiff sought to recover fees incurred by his prior counsel who had, as a result of a earlier motion by the defendant, been disqualified for a conflict of interest. See id. Unlike the present case, however, the defendant in Image Technical did not wait to raise the asserted conflict until after the conclusion of the case, and thus waiver was not at issue.
Second, Treasury relies on a line of cases in which the issue of conflict was first raised "as a defense in the attorney's action [against the client] to recover fees." See, e.g., Asbestos Claims Facility v. Berry Berry, 219 Cal. App. 3d 9, 26-27 (1990) (observing that where attorney brings action against client to recover contractual fees, client may raise issue of attorney's conflict of interest as defense to action), disapproved on other grounds, Kowis v. Howard, 3 Cal. 4th 888, 896-99 (1992). In such cases, courts have reasoned that the attorney's conflict of interest "rendered his services valueless" to the client, and thus the client need not pay the attorney for the services.See, e.g., Day v. Rosenthal, 170 Cal. App. 3d 1125, 1162 (1985) (holding where client established attorney breached fiduciary duty to client when providing advice as to investments, attorney's services were "valueless" to client). The cases on which Treasury relies typically involve transactional work rather than litigation, and thus presented no opportunity for the issue of conflict to be raised in an underlying proceeding. See, e.g., id. This case, of course, does not involve a claim for fees by an attorney against a client, and, in any event, Treasury had the opportunity to raise the issue of conflict earlier in the litigation.
Accordingly, Treasury has waived the right to object to Rizzo's representation of Mahtesian on the ground of an alleged conflict.
C. Calculation of Fee Award
In his motion, as supplemented by his reply, Mahtesian requests an award of fees in the amount of $472,306.25, consisting of 1453.25 hours of attorney time multiplied by an hourly rate of $325. Treasury challenges the reasonableness of the hourly rate sought, argues that certain categories of hours are not allowable, and further argues that the number of hours for allowed work should be reduced.
1. Appropriate Rate
Mahtesian seeks an hourly rate of $325 for his attorney Rizzo. To establish the reasonableness of that rate, Mahtesian has the burden "to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." See Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984).
Here, Mahtesian offers evidence that Rizzo has practiced law for approximately ten years, the first four to five of which were as an attorney for the Social Security Administration ("SSA"), and the last five of which were as a sole practitioner, primarily representing federal employees and unions in disputes with the federal government in both administrative proceedings and in federal court. (See Rizzo Decl. ¶¶ 3-5.) In support of the argument that an hourly rate of $325 is reasonable, Mahtesian relies on the declarations of three attorneys, all of whom practice in the same field as Rizzo and in the same geographic area, and who offer the opinion that the claimed rate is in line with prevailing rates in this community. (See Buchanan Decl. ¶¶ 3-4, 6; Lee Decl. ¶¶ 1, 12; Yamauchi Decl. ¶¶ 2, 6, 10.) One of the declarants, Shelley S. Buchanan, has practiced for the same amount of time as Rizzo and states her current hourly rate is $325. (See Buchanan Decl. ¶¶ 2, 5.) Another of the declarants, Jack W. Lee, states that attorneys with his firm who were admitted to the bar in 1993, one year prior to plaintiff's year of admission, currently charge an hourly rate of $375. (See Lee Decl. ¶ 11; Rizzo Decl. ¶ 3.)
Treasury argues that a reasonable rate is $250, and relies on the declaration of James P. Schratz ("Schratz"), an attorney who owns a litigation management and consulting firm and who was retained by defendants to "audit" plaintiff's fee request. (See Schratz Decl. ¶¶ 1, 5, 12.) According to Schratz, because Rizzo allegedly did not disclose "the nature or venue" of the work she performed for the SSA, and because she has not identified the names of the cases on which she has worked since becoming a sole practitioner, she should be paid a rate commensurate with a "four-year attorney." (See id. ¶ 17.A.) Schratz's argument, however, is not persuasive. Rizzo did disclose the nature of the work she performed for the SSA, and further disclosed that she performed the work both in federal district courts and before the Ninth Circuit Court of Appeals. (See Rizzo Decl. ¶ 4.) Also, Treasury submits no authority suggesting the mere fact Rizzo did not specifically identify the cases in which she has been retained provides a sufficient basis to reduce her claimed fee. In any event, although Schratz does not explain why the prevailing rate for a "four-year attorney" in this community is $250, if Schratz is correct, it would follow that an attorney with several additional years of experience, such as Rizzo, would be entitled to a fee in excess of $250.
In addition to the contents of Rizzo's declaration summarizing the nature of the work she performed for the SSA, the Court observes that Rizzo is identified in at least one published Ninth Circuit opinion as being the attorney of record for the SSA. See Verduzco v. Apfel, 188 F. 3d 1087 (9th Cir. 1999) (affirming district court's judgment in favor of SSA).
Treasury also relies on the fact that Mahtesian, in March 2002, testified that he agreed to pay Rizzo an hourly rate of $300 for her services in the instant case. (See Arbuckle Decl. Ex. B at 236-37.) To the extent Treasury suggests that, in light of such testimony, plaintiff should be awarded a rate of $300, the Court disagrees. As the Ninth Circuit has explained, "[d]etermination of a reasonable hourly rate is not made by reference to rates actually charged the prevailing party," but, rather, "by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation."See Chalmers v. City of Los Angeles, 796 F. 2d 1205, 1210-11 (9th Cir. 1986), as amended, 808 F. 2d 1373 (9th Cir. 1987). As noted, Mahtesian has offered evidence that the rate prevailing in the community for the work performed is $325 per hour.
According to Rizzo, she and Mahtesian later agreed, on a date undisclosed by Rizzo, to enter into an agreement under which Rizzo would be paid on a contingency basis. (See Rizzo Decl. ¶ 6.)
Accordingly, the Court will allow the requested hourly rate of $325.
2. Disallowed Hours
The vast majority of hours claimed were expended in connection with administrative "proceedings," and not this consolidated "action," and are disallowed for the reasons stated above. Specifically, Mahtesian is not entitled to the 46.75 hours expended in connection with his EEO complaint, (see Rizzo Decl. Ex. B at 1-2), or the 1172.50 hours expended in connection with the MSPB proceedings, (see id. Ex. C).
Additionally, the hours expended to prepare the pending motion, all of which were expended after August 9, 2004, are disallowed for the reason that the Rule 68 offer accepted by Mahtesian clearly and unambiguously provides that plaintiff is limited to fees and costs "accrued through August 9, 2004." See Judgment, filed August 25, 2004; Guerrero v. Cummings, 70 F. 3d 1111, 1113 (9th Cir. 1995) (holding plaintiff not entitled to "fees on fees" work performed after acceptance of Rule 68 offer, where offer limited plaintiff to hours expended "prior to the date of" offer). Specifically, Mahtesian is not entitled to the 86.5 hours expended in preparing the pending motion. (See Rizzo Decl. Ex. B at 5-6; Rizzo Reply Decl., filed November 12, 2004, ¶ 6).
The Court also notes that Mahtesian fails to explain why preparation of the instant motion reasonably required the expenditure of over 86 hours.
The remaining hours, i.e., the hours expended in the consolidated "action" prior to the date of the Rule 68 offer, are 147.50. The Court next considers whether an award of fees based on the remaining 147.50 hours, at a rate of $325, which would total $47,937.50, is subject to further reduction.
3. Reduction of Award
Treasury argues that the fee award should be reduced because of the limited recovery Mahtesian received.
The Ninth Circuit has held that "[i]t is an abuse of discretion . . . to award attorney's fees without considering the relationship between the extent of success and the amount of the fee award." See McGinnis v. Kentucky Fried Chicken, 51 F. 3d 805, 810 (9th Cir. 1995) (holding, where plaintiff received judgment for $34,000 in discrimination case and award of $127,242 in attorney's fees, district court abused discretion by failing to consider whether award was reasonable in relation to extent of success achieved by plaintiff).
Here, Mahtesian sought $500,000 in "non-economic damages," $500,000 in "future retirement benefits," (see Arbuckle Decl. Ex. F at 2), and, in addition, an unspecified amount of damages corresponding to "lost wages, backpay, all appropriate benefits, front pay, damages to reputation, and prejudgment interest," (see 04-1306 FAC, Prayer for Relief, ¶ 15.) Mahtesian also alleged numerous claims for injunctive and declaratory relief, including, but not limited to, claims that Treasury be required to provide "training for all employees and managers on prohibited discrimination," (see id. ¶ 5(c)), to "cease and desist from disclosing information contained in the background investigation that [Treasury] performed on Mahtesian," (see id. ¶ 10), to "release to Mahtesian all of the information [he] requested under the [FOIA] and the Privacy Act," (see id. ¶ 12), and to "retroactively instate and promote Mahtesian to the GS-14 Supervisory Auditor position," (see id. ¶ 14). Mahtesian, however, failed to receive any non-monetary relief, and only recovered the sum of $45,001 in satisfaction of a claim worth, according to Mahtesian, well over $1,000,000. Nor has Mahtesian identified any public benefit to his filing, litigating, or resolving the instant consolidated action. Cf. Morales v. City of San Rafael, 96 F. 3d 359, 364-65 (9th Cir. 1996), as amended, 108 F. 3d 981 (9th Cir. 1997) (holding where plaintiff received monetary judgment of $17,500, district court, when considering extent of plaintiff's success in context of motion for fees, should consider the "significant nonmonetary results [plaintiff] achieved for himself and other members of society"). Under the circumstances, it is appropriate to reduce, and the Court will reduce, the attorney's fee award "so that it is commensurate with the extent of the plaintiff's success."See McGinnis, 51 F. 3d at 810.
Treasury also notes that a fee award is subject to reduction to account for "unnecessary and duplicative work." See In re Washington Public Power Supply System Sec. Litig., 19 F. 3d 1291, 1298 (9th Cir. 1994). In this respect, Treasury challenges, inter alia, Rizzo's practice of billing by the quarter hour. Courts have recognized that the practice of billing "by the quarter-hour, not by the tenth" is a "deficient" practice "because it does not reasonably reflect the number of hours actually worked." See, e.g., Zucker v. Occidental Petroleum Corp., 968 F. Supp. 1396, 1403 (C.D. Cal. 1997) (providing example that attorney with $300 hourly rate who works 6 minutes on matter would charge $30 if he bills by the tenth and $75 if he bills by the quarter). As a result, courts have found it appropriate to reduce the fee award by a percentage, to account for the unearned increment resulting from the practice of quarter-hour billing.See Preseault v. United States, 52 Fed. Cl. 667, 680-81 (Fed.Cl. 2002) (citing cases). Consequently, it is appropriate to reduce, and the Court will reduce, the attorney's fee award for this reason as well.
The Court has read and considered Treasury's other arguments in support of a reduction, and finds them to be adequately addressed by the disallowances or the reductions discussed above.
In sum, in light of the limited recovery obtained and Rizzo's practice of billing by the quarter hour, the Court will reduce the sum of $47,937.50 by 20%, representing a 10% reduction for each such factor, and, accordingly, will award Mahtesian an attorney's fee in the amount of $38,350.
The Court further observes that, given the limited amount of litigation activity that actually occurred in this consolidated action, the resultant award more accurately reflects a reasonable fee.
D. Costs
Mahtesian seeks an award of costs in the amount of $2582.16, pursuant to the various fee-shifting statutes implicated by plaintiff's claims.
The costs Mahtesian seeks in the pending motion are in addition to the costs claimed in his bill of costs, pursuant to 28 U.S.C. § 1920, filed on October 1, 2004. The bill of costs, and Treasury's objections thereto, are pending before the Clerk of the Court.
At the outset, the Court disallows, for the reasons stated above, the request for costs incurred in the administrative proceedings and incurred after the date of the Rule 68 offer. Specifically, Mahtesian is not entitled to $51.69 in costs expended in connection with the EEO complaint, (see Rizzo Decl. Ex. E at 1), $1803.10 in costs expended in connection with the MSPB proceedings, (see id. Ex. F), or $76.10 in costs expended in connection with preparing the instant motion, (see Rizzo Reply Decl. ¶ 6).
This denial is without prejudice to Mahtesian's seeking an award of costs from the MSPB, which request, it would appear, is currently pending before that body. (See Langwiser Decl. ¶ 8.)
With respect to the remaining sum of $651.27, the Court, having read and considered Treasury's arguments, finds them unpersuasive, and, accordingly, will award such costs to Mahtesian.
CONCLUSION
For the reasons stated above, Mahtesian's motion for an award of attorney's fees and costs is hereby GRANTED in part and DENIED in part, and Mahtesian is awarded the sum of $38,350 in attorney's fees, together with the sum of $651.27 in costs, for a total of $39,001.27.
This order terminates Docket No. 38.
IT IS SO ORDERED.