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GLICK v. UNITED STATES CIVIL SERVICE COM'N

July 28, 1983

JUDITH GLICK, PLAINTIFF,
v.
UNITED STATES CIVIL SERVICE COMMISSION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

Pursuant to the tender, plaintiff received a back pay award of $90,887.20 which constitutes backpay covering the period at issue in both suits, adjusted to give plaintiff the regular step increases in her compensation at the earliest dates she could have received them had she not been terminated. This sum, less an amount attributable to federal and state income taxes, has been tendered to the clerk of this court. Defendants also have tendered lump sum payments representing compensation for plaintiff's accumulated annual and sick leave. Plaintiff was also permitted to retire immediately from the civil service and begin to receive a pension. The total present value of the tender is approximately $240,000.

Plaintiff's attorney, Martha A. Mills, who has represented plaintiff at our request since January 9, 1979,*fn1 has presented a petition for an award of attorney's fees against defendants under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504, 28 U.S.C. § 2412(d) (Supp. V 1981). Ms. Mills seeks compensation for 205 3/4 hours which she expended on the cases, 2 1/4 hours spent by her partner Richard F. Watt, 1/2 hour spent by her partner John M. Bowlus, 22 hours spent by her associate Sue Anne Herrmann, 262 3/4 hours by her associate Stephen D. Froikin, 5 1/4 hours by a law clerk, and 8 hours by a paralegal.*fn2

Under the EAJA, plaintiff may obtain attorney's fees unless the position taken by defendants was substantially justified. 28 U.S.C. § 2412(d) (Supp. V 1981).*fn3 Defendants do not contend that their decision to defend this litigation or their position on the merits was substantially justified; they concede that their decision to defend conduct that we ultimately held to be arbitrary and capricious makes an award under the EAJA appropriate.*fn4 Defendants do contend, however, that the "position" of the government through much of this case was that the case should be settled, that they were willing to concede liability here and hence their position was substantially justified.

    The Court draws instruction from parallel language in
  Fed.R.Civ.P. 37(a)(4). Under that Rule a court may require
  the losing party to a motion to compel discovery to pay
  attorneys' fees if that party was not "substantially
  justified" in opposing or making the motion. The Advisory
  Committee stated that this remedy was created to "deter the
  abuse implicit in carrying or forcing a discovery dispute to
  court when no genuine dispute exists." Likewise, the Act is
  intended to proscribe frivolous government action that forces
  a party to resort to the courts to redress its rights.

Photo Data, Inc. v. Sawyer, 533 F. Supp. 348, 352 n. 7 (D.D.C. 1982) (citation omitted). In fact, if defendants concluded in 1980 that the agency's action was indefensible, yet went ahead and defended the action on the merits, forcing plaintiff to litigate and the court to decide plaintiff's motion for summary judgment, we might well conclude that an award of attorneys' fees was independently justified under 28 U.S.C. § 2412(b) (Supp. V 1981) which permits a court to award attorneys' fees against the United States when it litigates in bad faith. See United States v. Burke, 548 F. Supp. 724, 730-31 (D.S.D. 1982).

As to the period after the court of appeals' remand we reach a different result. From that time on, defendants made no attempt to defend the agency's conduct but instead devoted their full efforts to settling the case. They promptly made a tender of full relief to plaintiff which we approved. Defendants' ultimate conduct in ending this litigation was commendable; this was not the sort of defense which should be penalized by an award of fees under the EAJA. Thus, we exclude from the EAJA award plaintiff's attorney's time after the remand except time spent preparing the fee petition, which is compensable in any event. We do not understand defendants to argue that time spent preparing the fee petition is not compensable.

Defendants also argue that the court should exercise its discretion under the EAJA to reduce the amount of fees to a prevailing party who "engages in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy." 28 U.S.C. § 2412(d)(1)(C) (Supp. V 1981). The only conduct to which defendants refer is plaintiff's failure to accept their tender after the remand. This conduct did not unreasonably protract the litigation; a hearing was promptly held, plaintiff's objections were overruled and final judgment was entered. Moreover, we have already denied compensation under the EAJA for work performed after the remand so this argument has no practical significance.

Defendants argue that the number of hours for which plaintiffs seek compensation is excessive.*fn5 Excluding time after the remand, Ms. Mills and her partners and associates seek compensation for 458 hours of legal work.

At the outset, we agree with Ms. Mills that plaintiff easily could have consumed 500 hours of attorneys' time. Plaintiff has been a very difficult litigant and must have been a very difficult client. Plaintiff is a confused, demanding, often irrational person who clearly has been emotionally involved in all the events surrounding this litigation. She has called our chambers on numerous occasions and refused to terminate her conversations with our staff, forcing them to hang up. She has come to our chambers numerous times and refused to leave until escorted out. She has appeared in court numerous times, with or without her attorney, and insisted on addressing the court until escorted out of the courtroom. We are confident that plaintiff was extremely demanding of her attorneys' time. Plaintiff went through three attorneys before we requested that Ms. Mills represent her; we agree with Ms. Mills that few attorneys would have stuck with that case as did Ms. Mills. For that we are grateful. Even difficult clients such as plaintiff have legal rights which should be vindicated. Ms. Mills enabled plaintiff to vindicate hers where most attorneys would have simply shrugged their shoulders and walked away.

All that said, we still agree with defendants that the hours claimed in the fee petition are excessive. The EAJA was designed to vindicate the public interest in challenging abusive governmental conduct. See Grand Boulevard Improvement Association v. City of Chicago, 553 F. Supp. 1154, 1162 63 (N.D.Ill. 1982). Time spent coping with plaintiff's behavior hardly vindicates that public interest; the taxpayers should not be expected to assume costs related to plaintiff's "eccentricities" rather than her attempt to force the government to obey the law. We agree with defendants that time spent by plaintiff's attorneys occasioned by plaintiff's behavior that was not productive in terms of advancing her position in this lawsuit may not be compensated under the EAJA. Accord, Photo Data, Inc. v. Sawyer, 533 F. Supp. 348, 353 (D.D.C. 1982).

This case was not legally complicated; the legal issues were straightforward. The case was factually complicated, however. The administrative record was voluminous and full of conflicting and confusing evidence. A lawyer would easily need several weeks to become sufficiently acquainted with the facts of the case to write a legal memorandum concerning it. Plaintiff's attorneys are entitled to be compensated for a substantial amount of time spent reviewing the record and briefing the case. Defendants do not argue otherwise. However, counsel are not entitled to be compensated under the EAJA for extensive, unnecessary conferences with their client. This was a paper case — review of an administrative record. In many ways, this case involved representation similar to that necessary in an appellate proceeding. Perhaps several days of conference with the client, supplemented by occasional conversations to tell plaintiff the status of the case, is all that would be reasonably necessary here. Thus, 24 hours of time spent by Ms. Mills and 10 hours spent by Mr. Froikin updating plaintiff on the status of her case after the initial conference conducted by Ms. Mills is all the time that should be compensated under the EAJA for client conferences. We have reviewed the ...


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