Opinion
CV-97-1654-ST
February 8, 2001
OPINION AND ORDER
After obtaining a Judgment dated September 18, 1998, in this Court, plaintiff, National Warranty Insurance Company, RRG, requested an award of attorney fees in the sum of $75,317.20. Defendant, Mike Greenfield, Director, Department of Consumer and Business Affairs of the State of Oregon, did not oppose that request, and this Court awarded plaintiff attorney fees and costs in the reduced sum of $65,315.22.
After prevailing on appeal before the Ninth Circuit, plaintiff requested an award of reasonable attorney fees pursuant to Circuit Rule 39-1.6 and also requested transfer of its motion for attorney fees to this court. The Ninth Circuit granted plaintiff's motion to transfer. Defendant then filed a Petition of Certiorari to the United States Supreme Court to which plaintiff filed a Brief in Opposition. After the Supreme Court denied that Petition, plaintiff filed an Amended Motion for Additional Award of Attorney Fees (docket # 70) for successfully responding to defendant's Petition to the Supreme Court.
Why plaintiff requested a transfer is not ascertainable from the record. Although the court requested plaintiff to submit copies of its briefs filed on appeal to the Ninth Circuit, plaintiff submitted only copies of the affidavits filed in support of its request for attorney fees.
At the court's request, plaintiff has submitted a copy of its Brief in Opposition filed with the Supreme Court.
Therefore, now pending before this court is plaintiff's request for attorney fees for prevailing on appeal both to the Ninth Circuit in the sum of $63,952.88 and to the Supreme Court in the sum of $34,916.38, for a total of $98,869.26. Once again, defendant has filed no opposition to plaintiff's request for attorney fees. As explained below, this court awards plaintiff the reduced amount of $74,724.48 for both appeals.
LEGAL STANDARD
Plaintiff is entitled to recover its attorney fees and costs pursuant to 42 U.S.C. § 1988. The calculation of attorney fee awards under 42 U.S.C. § 1988 begins with the lodestar figure which is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). Plaintiff carries the burden of proving the lodestar figure. Id.
"[T]he district court [is] required to independently review plaintiffs' fee request even absent defense objection." Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir 1993); Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385, n3 (9th Cir 1984).
In determining the lodestar figure, the court may consider many of the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir 1975), cert denied, 425 U.S. 951 (1976) and D'Emanuele v. Montgomery Ward Co. Inc., 904 F.2d 1379, 1383 (9th Cir 1990). These factors include the novelty or difficulty of the case, the preclusion of other employment, time limitations, the amount at stake, the results obtained, and the undesirability of the case. The court may adjust the lodestar: (1) downward if the plaintiff has achieved only partial or limited success, Hensley v. Eckerhart, 461 U.S. 424, 435 (1983); or (2) upward in "rare" and "exceptional" cases. Delaware Valley, 478 U.S. at 565. However, there is a strong presumption that the lodestar figure represents a reasonable fee. Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 621 (9th Cir 1987).
DISCUSSION
I. Fees for Prevailing in the Ninth Circuit
The affidavits filed in support of plaintiff's request for prevailing on appeal to the Ninth Circuit reveal that two law firms charged plaintiff attorney fees and costs in the sum of $56,888.88. This amount is based on a reduced hourly rate charged to plaintiff by one of its attorneys, Ms. Leavitt. Because of the result obtained, plaintiff seeks an upward adjustment to $63,952.88 in order to reflect Ms. Leavitt's reasonable hourly rate.
For services performed as local counsel by the law firm of Miller, Nash, Wiener, Hager Carlsen LLP ("Miller Nash") in Portland, Oregon, plaintiff seeks $14,741.73, consisting of attorney fees of $14,510.50 and costs of $231.32. According to the billings attached to the Affidavit of Bruce A. Rubin, those services began in October 1998 and were performed by Bruce A. Rubin, John A. Lusky, James N. Westwood, and William H. Walters, as well as clerks and paralegals.
For services as national counsel performed by the law firm of Buchanan Ingersoll Professional Corporation ("Buchanan Ingersoll") in Harrisburg, Pennsylvania, plaintiff seeks an additional amount of $42,147.15, consisting of attorney fees of $36,355.50 and costs of $5,791.65. Those services began in October 1998 and were performed primarily by M. Hannah Leavitt and P. Kevin Brobson.
A. Reasonableness of Hourly Rate
In determining a reasonable attorney fee award under 42 U.S.C. § 1988, this court must look at the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895, n11 (1984). The relevant community "is one in which the district court sits." Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir), cert denied, 502 U.S. 899 (1991). These rates are set "by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity." Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir 1993). In order to meet this burden of proof, the fee applicant must "produce satisfactory evidence — in addition to the attorney's own affidavits" that the requested rates are prevailing market rates under this standard. Id.
The regular hourly billing rate for Mr. Rubin, who has been a member of the Oregon State Bar since 1976, was $210.00 in 1997, $235.00 in 1998, $255.00 in 1999, and $275.00 in 2000. His 2000 hourly rate is $65.00 more than his 1997 hourly rate, representing a 31% increase in four years. The regular hourly billing rate for Mr. Lusky, who has been a member of the Oregon State Bar since 1977, was $205.00 in 1997, $225.00 in 1998, $245.00 in 1999, and $265.00 in 2000. His 2000 hourly rate is $60.00 more than his 1997 hourly rate, representing a 29% increase in four years. The regular hourly billing rate for Mr. Westwood, who has been a member of the Oregon State Bar since 1974, was $230.00 in 1998 and $245.00 thereafter. The regular hourly rate for Mr. Walters, who has been a member of the Oregon State Bar since 1982, was $235.00 during the period he worked on the appeal to the Ninth Circuit.
Although Ms. Leavitt billed plaintiff a discounted hourly rate of $170.00-$240.00 because of the importance of this case and her long-standing relationship with plaintiff, she seeks to recover fees based upon her higher regular hourly rates of $220.00 in 1997, $250.00 in 1998, and $260.00 in 1999 and 2000. Her 1999 and 2000 hourly rate is $40.00 more than her 1997 hourly rate, representing an 18% increase. Mr. Brobson assisted Ms. Leavitt with 120.0 hours incurred for the appeal and charged $105.00 per hour in 1997, $120.00 in 1998, $165.00 in 1999, and $185.00 in 2000. His 2000 hourly rate is $80.00 more than his 1997 hourly rate, representing a 76% increase in four years.
Although defendants do not challenge the hourly rates requested by plaintiff, this court has an obligation to ensure that the hourly rates are reasonable. To support the reasonableness of its hourly rates, plaintiff has submitted the Affidavit of Paul T. Fortino, which is nearly identical to his affidavit submitted in support of plaintiff's prior request for attorney fees. Based on his interview of Mr. Rubin and review of the Miller Nash file, as well as on his more general investigation as a witness/consultant on attorney fee issues in the Portland area, he opines that the hourly rates are reasonable with one exception, namely that Ms. Leavitt's hourly rate is too low. However, he does not state what market rates prevail in the Portland area for attorneys of comparable ability and reputation.
Based on this court's familiarity with attorney fee petitions and the Oregon State Bar Economic Survey of 1998, the hourly rates charged by Messrs. Rubin and Lusky are at the very upper end of the range for prevailing market rates for comparable litigators in the Portland area. Although this court previously concluded that the rates requested by them for 1996-1998 were reasonable, it has serious misgivings about reaching the same conclusion for their 1999 and 2000 rates. Miller Nash appears to have developed a routine practice of raising its hourly rates by $15.00 to $20.00 per year. The reason for this annual incremental increase in hourly rates is not disclosed by the record and is rather suspect, given that the annual increase is more than the published annual cost of living increase and appears to have no relation to any other relevant market index concerning the cost of doing business. However, defendant has not seen fit to contest Miller Nash's hourly rates and has failed to provide this court with any basis to reduce those rates. Thus, this court reluctantly must conclude that the hourly rates charged by Miller Nash are reasonable.
Based on this same standard, the hourly rates of $250.00-260.00 for Ms. Leavitt also are reasonable. However, Ms. Leavitt seeks to recover an hourly rate higher than she charged plaintiff and even higher than Mr. Rubin charged plaintiff in 1998-99. When a party has contracted to pay a particular hourly rate, that rate should logically constitute an upper limit as to a reasonable hourly rate. Otherwise, the client would receive more in attorney fees more than he or she paid. However, Blum requires the lodestar amount to be calculated using prevailing market rates. A contract rate does not always reflect the customary market rate for similar services. Where the contract rate is lower than the market rate, and where that lower contract rate appears to reflect special billing considerations, there is no reason to hold plaintiff to the lower contract rate in computing the lodestar amount. Here Ms. Leavitt has explained why she charged plaintiff a discounted rate.
However, this court has been presented with no information that would justify Ms. Leavitt charging a higher rate than either Mr. Rubin or Mr. Lusky. As noted above, the rates of Messrs. Rubin and Lusky are at the higher end of prevailing market rates in the Portland area. Although this case was appealed to the Ninth Circuit in San Francisco and the Supreme Court in Washington, D.C., it arose here and local counsel was involved in both appeals. This court has been presented with no basis on which to impose Harrisburg, Pennsylvania, hourly rates on defendant instead of Portland, Oregon, hourly rates. Because Ms. Leavitt most closely parallels the education, experience, and ability of Mr. Lusky, this court will set Ms. Leavitt's hourly rate at the same or lower than Mr. Lusky's rate, namely $225.00 per hour in 1998, $245.00 in 1999, and $260.00 in 2000.
Mr. Brobson, a 1995 law school graduate, has substantially less experience than any other lawyer working on this case except Mr. Browndorf, a 1998 law school graduate. Yet, without explanation, his hourly rate jumped dramatically in 1999 from $120.00 to $165.00 and then again to $185.00 in 2000. Although an increase of $20.00 per year would have been in line with the other increases in hourly rates, an increase of $40.00-45.00 per year is not. Therefore, consistent with the increases in hourly rates for the other lawyers working on this case, this court will reduce Mr. Brobson's hourly rate to $140.00 for 1999 and $160.00 for 2000.
B. Reasonableness of Hours Expended
Despite the lack of any opposition by defendant, this court must determine if the hours expended are reasonable and may "exclude . . . hours that were not `reasonably expended.'" Hensley, 461 U.S. at 434. As explained below, not all of the hours expended by plaintiff's attorneys were reasonable.
1. Duplication of Effort
Because both national counsel and local counsel represented plaintiff, some duplication of work inevitably resulted. That duplication must be excluded from any fee award:
Counsel for the prevailing party shall make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. In the private sector, "billing judgment" is an important component in fee setting. It is no less important here. "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."
Hensley, 461 U.S. at 434 (citation omitted).
Plaintiff's attorneys appear not to have excluded all redundant hours. In fact, the billings attached to the affidavits reveal substantial duplication of work between the Miller Nash firm and the Buchanan Ingersoll firm. For example, two attorneys from the Miller Nash firm (Mr. Rubin and Mr. Westwood) and two attorneys from the Buchanan Ingersoll firm (Ms. Leavitt and Mr. Brobson) all prepared for and attended oral argument before the Ninth Circuit on September 16, 1999. From reviewing the billing entries, it appears that Ms. Leavitt gave the oral argument with Mr. Westwood as the primary local counsel. It was not necessary for more than one representative each of local counsel and national counsel to attend oral argument. Therefore, the time spent by Mr. Brobson and Mr. Rubin preparing for and attending the oral argument was duplicative and is not recoverable. That time is 1.7 hours for Mr. Rubin and 28.7 hours for Mr. Brobson.
1.7 = .2 (7/23/99) + .2 (9/8.99) + .3 (9/13/99) + 1.0 (9/16/99)
28.7 = .3 (8/9/99) + .7 (8/10/99) + .2 (9/7/99) + 1.2 (9/8/99) + .3 (9/9/99) + 8.0 (9/14/99) + 8.0 (9/15/99) + 4.0 (9/16/99) + 6.0 (9/17/99)
In addition, this court is able to clearly identify .5 hours billed by Mr. Brobson and 3.8 hours billed by Ms. Leavitt for telephone conferences with the Miller Nash firm for which the Miller Nash firm also billed. Mr. Fortino states that this amount of duplication was not excessive, but is typical of a national counsel/local counsel relationship. While no doubt true, it is unreasonable to require the losing party to pay for any unnecessary duplication of effort between two law firms representing the prevailing party. A party is certainly free to hire and pay as many lawyers as it wishes, but cannot expect to shift the cost of any redundancies to its opponent. Instead it can only shift the reasonable attorney fee expended. A fee that is "not excessive" may still be unreasonable. When attorneys hold a telephone or personal conference, good "billing judgment" mandates that only one attorney should bill that conference to the client, not both attorneys. The same good "billing judgment" requires attorneys not to bill for more than two attorneys to review pleadings or to attend oral argument.
.5 = .2 (3/29/99) + .3 (6/21/00)
3.8 = .5 (11/2/98) + .2 (3/23/99) + .8 (4/9/99) + .8 (4.21.99) + 1.0 (4/26/99) + .3 (6/4/99) +.2 (7/27/99)
Therefore, this court finds that the number of hours should be reduced commensurate with the unnecessary duplication of effort by plaintiff's attorneys as revealed by their billings. Since local counsel is charged by Local Rule 83.3 with meaningful participation in the preparation and trial of a case and is the designated contact person for the Clerk's office, this court elects to reduce the duplicative hours incurred by national counsel, rather than by local counsel. If anything, this approach results in a higher fee award to plaintiff since the hourly rates are lower for national counsel than for local counsel.
2. Excessive Hours
According to the summary of hours submitted, the Miller Nash firm spent 19.9 hours researching and preparing the appellate brief to the Ninth Circuit, while the Buchanan Ingersoll firm spent another 96.9 hours. Of these hours, Mr. Brobson spent about 62.0 hours and Ms. Leavitt spent another 14.0 hours just drafting and revising the appellate brief. In other words, the writing of the brief took the Buchanan Ingersoll firm about 76.0 hours, or eight hours a day for nearly nine days. This court is at a distinct disadvantage since it has not seen the brief filed by plaintiff on appeal to the Ninth Circuit. However, this matter was a legal issue resolved by summary judgment. Therefore, the appellate brief did not necessitate reviewing and summarizing testimony in a trial transcript and should have involved very little additional legal research beyond what was done for the benefit of this court on summary judgment. This court is at a loss to understand how so much time was necessary to research and write one appellate brief.
Although this court suspects that a further reduction is justified, erring in favor of plaintiff, this court reduces the total time incurred by Ms. Leavitt and Mr. Brobson in 1999 by 25%, thereby reducing Ms. Leavitt's hours by 3.5 (25% x 14.0 hours) and Mr. Brobson's hours by 15.5 (25% x 62.0 hours).
3. Unrelated Matters
In October and November 1998, the Buchanan Ingersoll firm billed for Mr. Brobson to become familiar with and be admitted to the Ninth Circuit. Since Ms. Leavitt signed the brief and gave the oral argument, Mr. Brobson's admission to the Ninth Circuit was not necessary. Furthermore, good billing judgment dictates that no law firm should charge its client to become admitted to the bar of any court, but should absorb that cost as part of its overhead. Therefore, the bill is reduced by .8 hour by Mr. Barnhart on October 19, 1998, and 1.1 hours by Mr. Brobson on November 2, 1998.
In addition, in May 2000, the Buchanan Ingersoll firm billed 2.2 hours by Mr. Brobson for matters related to Florida, not to Oregon. These matters appear to have nothing to do with this case and are not recoverable.
4. Preparation of Attorney Fee Petition
Reasonable time spent by counsel on preparing a fee petition is compensable. See D'Emanuele, 904 F.2d at 1387; McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir 1995). Therefore, plaintiff is entitled to recover for the time expended by its attorneys to draft and file the attorney fee petition. The hours expended on that task appear reasonable.
5. Travel Time
Civil rights statutes which expressly authorize attorney fees have been interpreted to allow compensation for reasonable costs of litigation over and above those enumerated in 28 U.S.C. § 1920, such as attorney's travel expenses. See, e.g., Davis, 976 F.2d at 1543. "The touchstone in determining whether hours have been properly claimed [for travel time] is reasonableness. The assessment of reasonableness is made by reference to standards established in dealings between paying clients and the private bar." Id.
Although plaintiff's attorneys have not stated in their affidavits whether it is customary for them and other local attorneys to bill clients for travel time, their billings reveal that they did charge plaintiff for this cost. In addition, this court is aware from other fee petitions that billing clients for travel time is customary in the Portland area. Therefore, it is appropriate to bill for travel time, except for the duplicative travel time of Mr. Brobson to attend oral argument deducted above.
C. Summary
Accordingly, for prevailing on appeal to the Ninth Circuit, the attorney fees requested by the Miller Nash firm are reduced by 1.7 hours for Mr. Rubin to prepare for and attend the oral argument (1.7 hours x $255.00 = $433.50), for a total of $14,077.00 ($14,510.50 — $433.50). In addition, the attorney fees requested by the Buchanan Ingersoll firm are reduced both with respect to the hourly rates of Ms. Leavitt and Mr. Brobson and the number of hours billed. The reduction in hours is summarized as follows:
1. 28.7 hours in 1999 by Mr. Brobson preparing for, traveling to/from, and attending the oral argument;
2. .2 hour in 1999 and .3 hour in 2000 by Mr. Brobson for telephone conferences with Miller Nash;
3. .5 hour in 1998 and 3.3 hours in 1999 by Ms. Leavittt for telephone conferences with Miller Nash; and
4. 15.5 hours in 1999 by Mr. Brobson and 3.5 hours in 1999 by Ms. Leavitt for researching and drafting the brief on appeal.
This court has calculated that Mr. Brobson billed 5.5 hours in 1998, 105.2 hours in 1999 and 9.3 hours in 2000 (for a total of 120.0 hours) and that Ms. Leavitt billed 1.9 hours in 1998, 71.8 hours in 1999, and 5.0 hours in 2000 (for a total of 78.7 hours). Applying the above reductions leaves the following recoverable hours at the following hourly rates:
NAME 1998 1998 1999 1999 2000 2000 TOTAL HOURS RATE HOURS RATE HOURS RATE Paralegal 0.0 $ 85.00 2.3 $ 85.00 $ 195.50 Brobson 5.5 $120.00 60.8 $140.00 9.0 $160.00 $10,612.00 Leavitt 1.4 $225.00 65.1 $245.00 5.0 $260.00 $17,564.50 Browndorf 7.0 $110.00 $ 770.00 Librarian .3 $ 70.00 $ 21.00 Thus, the attorney fee recoverable for the Buchanan Ingersoll firm is $29,163.00. Adding the attorney fee for the Miller Nash firm of $14,077.00 brings the total to $43,240.00.II. Fees for Prevailing in the Supreme Court
The affidavits filed in support of its Amended Motion reveal that plaintiff incurred attorney fees and costs in the sum of $29,893.68 for work performed by two law firms for prevailing on the appeal to the Supreme Court. However, this amount is based on a reduced hourly rate charged to plaintiff by one of its attorneys, Ms. Leavitt. Because of the result obtained, plaintiff seeks an upward adjustment to the sum of $34,916.38 in order to reflect Ms. Leavitt's reasonable hourly rate.
A. Reasonableness of Hourly Rate
For services performed as local counsel by Miller Nash, plaintiff seeks $2,695.00 in attorney fees and no costs. According to the billings attached to the Affidavit of Alison E. Brody, those services consisted of 12.0 hours expended from October 2000 through January 2001 by Bruce A. Rubin, John A. Lusky, William H. Walters, and Alison E. Brody. The regular hourly billing rate for Mr. Rubin was $275.00 in 2000 and $295.00 in 2001 (an increase of 7.3%). The regular hourly billing rate for Mr. Lusky, was $265.00 in 2000 and $285.00 in 2001 (an increase of 7.5%). The regular hourly rate for Mr. Walters was $235.00 in 2000 and $265.00 in 2001 (an increase of 12.8%). The regular hourly rate for Ms. Brody, who became a member of the Oregon State Bar in 1999, was $135.00 in 2001.
For services as national counsel performed by Buchanan Ingersoll, plaintiff seeks an additional amount of $27,197.78, consisting of attorney fees of $24,142.00 and costs of $3,055.78. From October through December 2000 Ms. Leavitt billed 55.2 hours for work performed on the Brief opposing the Petition for Writ of Certiorari. Although she billed plaintiff a discounted hourly rate of $170.00-$240.00 because of the importance of this case and her long-standing relationship with plaintiff, she seeks to recover fees based upon her higher regular hourly rate of $260.00. Mr. Brobson assisted Ms. Leavitt with 69.2 hours at $185.00 per hour. In addition, Pamela C. Walker, who was admitted to the Pennsylvania State Bar in 2000, charged $120.00 per hour for 16.3 hours.
For the reasons set forth above, the hourly rates for Miller Nash and for Ms. Leavitt and Ms. Walker are reasonable, but the hourly rate for Mr. Brobson is reduced to $160.00.
B. Reasonableness of Hours Expended
For the same reasons set forth above, not all of the hours expended by plaintiff's attorneys on the Brief opposing the Petition for Writ of Certiorari were reasonable due to duplication of work by national and local counsel and excessive time.
Unlike the appeal to the Ninth Circuit, this court received and reviewed plaintiff's well-written 25 page Brief in Opposition to the Petition for Writ of Certiorari. However, given that all of the legal issues presented in that Brief had been thoroughly researched and previously presented to the Ninth Circuit, drafting that Brief should have been fairly straight-forward. The major additions appear to be the counterstatement of the case, references to the Ninth Circuit opinion, and an analysis of the impact of the case on other states. Despite these additions, this court is at a loss to understand how the cost to file one response brief can reach the extraordinary sum of nearly $30,000.00. Although plaintiff's two law firms spent about 96 hours preparing the brief on appeal to the Ninth Circuit, which this court has found to be excessive, they appear to have spent about 120.2 hours (4.9 by Miller Nash and 115.3 by Buchanan Ingersoll), or nearly 25% more time, researching and preparing the Brief in Opposition to the Petition for Writ of Certiorari. If anything, the hours spent on the appeal to the Supreme Court should have been less than on the appeal to the Ninth Circuit. Therefore, this court reduces the total time incurred by the Buchanan Ingersoll firm by 25% from 115.3 hours to 86.5 hours, for a total reduction of 28.8 hours. Of these hours, Mr. Brobson accounts for about 60%, or 17.3 hours, and Ms. Leavitt accounts for the remaining 40%, or 11.5 hours.
In addition, this court notes that Mr. Lusky charged for reviewing and responding to an audit inquiry letter (.2 hours on December 28, 2000, and part of .4 hours on January 9, 2001). This appears to be an unrelated matter for which defendant should not have to pay. Therefore, this court deducts .4 hours for Mr. Lusky or $110.00 (.2 x $265.00 = $53.00 + .2 x $285.00 = $57.00).
C. Summary
Accordingly, for prevailing on appeal to the Supreme Court, the attorney fees requested by the Miller Nash firm, after deducting .4 hours for Mr. Lusky, are reduced to $2,585.60 ($2,695.00 — $110.00).
In addition, the attorney fees requested by the Buchanan Ingersoll firm are reduced both with respect to the hourly rate of Mr. Brobson and the number of hours billed. Applying the above reductions in hours leaves the following recoverable hours at the following hourly rates:
NAME 2000 HOURS 2000 RATE TOTAL
Brobson 51.9 $160.00 $ 8,304.00
Leavitt 43.7 $260.00 $11,362.00
Walker 16.3 $120.00 $ 1,956.00
Thus, the attorney fee recoverable for the Buchanan Ingersoll firm is $21,622.00. Adding the attorney fee for the Miller Nash firm of $2,585.60 brings the total attorney fees for the appeal to the Supreme Court to $24,207.60.
III. Out-of-Pocket Expenses
Under § 1988, a court may award a "reasonable attorney's fee as part of the costs." Reasonable "out-of-pocket expenses include those costs `that would normally be charged to a fee paying client.'" Robins v. Scholastic Book Fairs, 928 F. Supp. 1027, 1036 (D Or 1996), quoting Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir 1994). Those recoverable costs include photocopying, paralegal expenses, and travel and telephone costs. Id at 1036, n14, quoting Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240, 1244 (9th Cir 1982).
The out-of-pocket costs requested by plaintiff not only fall into these categories but also include telecopier charges, delivery charges, UPS and air express charges, computer research, lunch meeting costs, imaging services, and the filing fee for admission pro hac vice. Again plaintiff's affidavits do not recite that these costs are normally charged to a fee paying client. Nevertheless, the fact that the costs appear on the billings to plaintiff leads this court to conclude that they are recoverable costs under § 1988.
As discussed above, however, Mr. Brobson's attendance at oral argument in Portland is duplicative and not recoverable. Thus, the $1,801.78 cost for him to travel to Oregon (airfare plus food and lodging) also is not recoverable and must be deducted from the out-of-pocket expenses.
Accordingly, plaintiff is entitled to recover $4,221.10 for out-of-pocket costs for the appeal to the Ninth Circuit ($6,022.88 — $1,801.78) and $3,055.78 for out-of-pocket costs for the appeal to the Supreme Court.
ORDER
For the reasons set forth above, plaintiff's Motion for Attorney Fees (part of docket # 65) and Amended Motion for Additional Award of Attorney Fees on appeal to the Supreme Court (docket #70) are GRANTED IN PART and DENIED IN PART. Plaintiffs shall recover from defendant the sums of $43,240.00 for attorney fees and $4,221.10 for costs for prevailing on appeal to the Ninth Circuit and the additional sums of $24,207.60 for attorney fees and $3,055.78 for costs for prevailing on appeal to the United States Supreme Court, for a total of $74,724.48.