       In the United States Court of Federal Claims
                                       No. 17-350C

                                  (Filed: April 6, 2018)

*************************************
                                    *
MICHAEL PARKER,                     *
                                    *
                    Plaintiff,      *
                                                 Fair Labor Standards Act, Attorneys’
                                    *
                                                 Fees; 29 U.S.C. § 216(b); Offer of
v.                                  *
                                                 Judgment; Burden of Proof; Billing
                                    *
                                                 Records.
THE UNITED STATES,                  *
                                    *
                    Defendant.      *
                                    *
*************************************

Annette Farnaes, Rosenberg, Shpall & Zeigen, APLC, San Diego, California, for Plaintiff.

Erin K. Murdock-Park, with whom were Chad A. Readler, Acting Assistant Attorney
General, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington,
D.C., as well as Major Corey Pullig, Of Counsel, Labor and Employment Counsel,
Western Area Counsel Office, Camp Pendleton, California, for Defendant.

                                 OPINION AND ORDER

WHEELER, Judge.

         On December 13, 2017, Plaintiff Michael Parker filed a motion for attorneys’ fees
after alleging overtime pay violations according to the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 201 et seq. The prevailing party in a FLSA action is entitled to reasonable
attorneys’ fees. 29 U.S.C. § 216(b). In this case, Mr. Parker accepted the Government’s
offer of judgment pursuant to Rule 68(a) of the Court, but the parties were unable to agree
on the award of attorneys’ fees.

       Mr. Parker requests attorneys’ fees in the amount of $16,687.50. These attorneys’
fees are based on a total of 44.5 attorney hours billed at an hourly rate of $375. While the
Government agrees with Mr. Parker’s entitlement to attorneys’ fees, it objects to the
$16,697.50 figure, arguing that the requested amount is unreasonable. Further, the
Government filed a motion to strike information related to settlement discussions included
in Mr. Parker’s motion.

        For the reasons set forth below, Mr. Parker’s motion for attorneys’ fees is
GRANTED IN PART. Mr. Parker is entitled to receive $4,087.50 for attorneys’ fees
resulting from this litigation. The Government’s motion to strike is moot, as the settlement
discussions were not considered in this decision.

                                        Background

        Between 2007 and 2016, Mr. Parker worked as a paramedic for the United States
Department of Defense at the Camp Pendleton Fire Department (hereinafter
“Government”); in 2016, his employment changed to a temporary, unfunded position.
Compl. at 1. On September 6, 2016, Mr. Parker filed a complaint in the United States
District Court for the Southern District of California, alleging that the Government violated
the FLSA by (1) failing to compensate him for overtime work, allegedly totaling $419,234,
and (2) retaliating against him by reducing his hours and assigning him to a work schedule
that rendered overtime impossible. See Parker v. Dep’t of Navy, No. 3:16-CV-2242-CAB,
2017 WL 733426, at *1 (S.D. Cal. Feb. 24, 2017); see also Compl., Ex. 1. Additionally,
Mr. Parker argued that the Government did not keep adequate records of his hours and
wages, leading to inaccurate calculations. Parker, 2017 WL 733426, at *1. After
considering the filings from both parties, the California district court dismissed the
overtime compensation claim for lack of jurisdiction and ordered the claim to be re-filed
in the United States Court of Federal Claims. Id. at *3. The retaliation claim, which
sounded in tort, continued in the California district court.

        On March 15, 2017, Mr. Parker filed his complaint with this Court, again alleging
unlawful deprivation of overtime compensation pursuant to the FLSA. Compl. at 4, 8. Mr.
Parker also claimed that the Government did not correctly calculate the “regular rate of
pay” used to determine FLSA overtime compensation. Id. at 7 (citing 29 U.S.C. § 207(a)).
In his complaint, Mr. Parker sought monetary damages based on a complete and accurate
accounting as well as reasonable attorneys’ fees. Compl. at 9.

        Shortly after Mr. Parker filed his overtime compensation claim in this Court, the
district court handling his retaliation claim ordered the relevant parties to engage in early
neutral evaluation (“ENE”) with a magistrate judge. See Def.’s Resp., Ex. 1 (Notice and
Order for Early Neutral Evaluation Conference, dated March 23, 2017) (“ENE Order”).
ENE consists of a conference aimed at resolving a case at an early stage of litigation. See
ENE Order at 2. As required by the district court, Assistant U.S. Attorney Valerie Torres
(“AUSA Torres”), the attorney of record for the retaliation case, attended the ENE;
Government counsel in the overtime compensation case also attended the ENE at AUSA


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Torres’ request. See Def.’s Resp., Attach. A (Declaration of Assistant U.S. Attorney
Valerie Torres (“Torres Decl.”) at ¶ 5.

        By June 2, 2017, Mr. Parker reached a settlement agreement regarding the
retaliation claim, and the district court dismissed the claim on September 1, 2017. See
Def.’s Resp. at 2. As a result of the settlement, Mr. Parker received a lump sum, of which
attorneys’ fees were included but not separately negotiated. Pl.’s Mot. at 3-4.

        On November 2, 2017, a few months after the retaliation claim was resolved in the
district court, the parties in this case filed a joint notice of acceptance of a Rule 68 offer of
judgment. See Dkt. No. 9. According to the offer of judgment, Mr. Parker was entitled to
receive $6,000 in damages as well as “reasonable attorney fees and costs, attributed solely
to this case and incurred from March 15, 2017 to [August 17, 2017].” Id. at 4. The parties,
unable to agree on attorneys’ fees, sought resolution on that issue from the Court.

        On December 13, 2017, Mr. Parker filed a motion for attorneys’ fees. Dkt. No. 11.
In this motion, Mr. Parker asserts that attorneys’ fees incurred for this matter amount to
$20,434.50. Pl.’s Mot. at 2. This amount is based on billing records of approximately 54.5
hours at an hourly rate of $375, the law firm’s billing rate between March and August 2017.
Pl.’s Mot. at 2; see also Id., Ex. 2 (“Client History Bill”). Mr. Parker alleges that the $375
billing rate is not only reasonable, but it is also below the average attorney rate in San
Diego, the location of counsel’s office. Pl.’s Mot. at 2. In addition to explicit requests for
costs resulting from the overtime compensation case before this Court, Mr. Parker includes
costs pertaining to the California district court’s mandatory ENE, arguing that the ENE
pertained to both the retaliation claim and the overtime compensation claim. Pl.’s Mot. at
3; see also Client History Bill. Mr. Parker states that the Government attended the ENE
conference and attempted to settle its case through this process. Pl.’s Mot. at 3. Mr. Parker
further explains that he received a percentage of the lump sum resulting from the retaliation
settlement, rather than a specific calculation based on hours worked. Id. at 3-4. After
outlining this argument, Mr. Parker adjusted the initial fee request and reduced the ENE
hours by half since the conference supposedly addressed both the retaliation and overtime
compensation matters. Id. at 4. Mr. Parker now requests $16,687.50 of attorneys’ fees for
44.5 hours of professional work performed. Id.

        The Government filed its response on December 22, 2017, arguing that while Mr.
Parker is entitled to attorneys’ fees as a result of the offer of judgment, the amount
requested is unreasonable. Def.’s Resp. at 3. The Government claims that at least $16,350
of the fees initially claimed by Mr. Parker should be omitted, thereby concluding that Mr.
Parker is entitled to approximately $4,087.50 in attorneys’ fees.




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                                          Discussion

  I.   Recovery Under the FLSA

        Our legal system largely adheres to the “American Rule,” whereby each party to a
lawsuit bears its own attorneys’ fees regardless of the outcome. See Hensley v. Eckerhart,
461 U.S. 424, 429 (1983). Despite this general rule, Congress may authorize courts to
award attorneys’ fees to prevailing parties in specific instances. For example, under 29
U.S.C. § 216(b) of FLSA, which establishes overtime pay and other standards affecting
government employees, a court may award reasonable attorneys’ fees and costs to the
prevailing party. See, e.g., Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 745
(1981). An offer of judgment pursuant to Federal Rule of Civil Procedure 68 stipulates
that the plaintiff shall be treated as the prevailing party. See Delta Air Lines, Inc. v. August,
450 U.S. 346, 363 (1981) (Powell, J., concurring).

        While reasonable attorneys’ fees are permitted under the FLSA, Congress does not
actually define reasonableness in the statute. The Federal Circuit, however, often considers
the factors outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974), to determine the reasonableness of attorneys’ fees. See Electro-Mechanical Indus.
v. Universal Support Sys., 359 F.App’x 160, 166 (Fed. Cir. 2009); see also Cook v. United
States, 855 F.2d 848, 851-52 (Fed. Cir. 1988) (applying Johnson factors in order to decide
appropriate FLSA attorney fees). The factors include, but are not limited to, the time and
labor required; the novelty and difficulty of the questions; the skill requisite to adequately
perform the legal service; the customary fee; and the amount involved in the results
obtained. Johnson, 488 F.2d at 717-20.

       The party seeking attorneys’ fees bears the burden of showing that the requested
amount is reasonable; counsel is also expected to exercise “billing judgment” when
maintaining records. Hensley, 461 U.S. at 437. An attorney’s billing records should be
kept in a manner that will allow a reviewing court to understand and identify distinct claims
within reason. Id. Courts do not require excessive detail in record keeping, but counsel
should adequately identify the subject matter of each billing entry, which provides a basis
for recovery. See id. at n.12.

       Whether Mr. Parker is entitled to attorneys’ fees in this case is not in dispute. See
Def.’s Resp. at 3. Mr. Parker accepted a Rule 68 offer of judgment regarding his overtime
compensation claim brought under FLSA. See Dkt. No. 9 at 7. As such, he is a prevailing
party authorized to receive attorneys’ fees. The reasonableness of the requested fees,
however, is at issue.



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 II.   Attorneys’ Fees

          a. Reasonable Billing Rate

      Counsel of record for Mr. Parker seeks recovery based on an hourly billing rate of
$375, which is allegedly below the San Diego average. Pl.’s Mot. at 2. The Government
does not challenge the reasonableness of this rate. Def.’s Resp. at 4. The Court therefore
makes no adjustments to the hourly billing rate of $375.

          b. Fees Attributed to This Case

        Recovery under the Government’s offer of judgment in this case is expressly limited
to “$6,000, plus reasonable attorney fees and costs, attributed solely to this case and
incurred from March 15, 2017 to [August 17, 2017].” Dkt. No. 9 at 7 (emphasis added).
Mr. Parker accepted the Rule 68 offer on these terms. Id. The Government argues that at
least 43.6 hours of the total hours outlined in Mr. Parker’s motion for attorneys’ fees are
not attributable to this case and therefore should not be awarded. Def.’s Resp. at 8.

                  i. Costs Pertaining to Unrelated Matters

        The Government contends that 15.8 hours of time in Mr. Parker’s motion do not
relate to his overtime compensation claim. Def.’s Resp. at 5. These hours are identified
as eighteen entries from Mr. Parker’s client history bill. See Client History Bill. The
entries include a telephone call with “US Attorney” for .30 hours on March 16, 2017;
reviewing court orders and calendar dates for .50 hours on April 11, 2017; and participating
in a telephone call regarding the retirement age for fire inspectors for .30 hours on April
26, 2017. See id.; see also Def.’s Resp. at 6.

        Regarding the March 16, 2017 entry, there are no named U.S. Attorneys associated
with this case. The only U.S. Attorney mentioned in any of the parties’ briefs is AUSA
Torres, counsel of record in the district court’s retaliation case. Considering this fact and
Mr. Parker’s failure to otherwise explain this time, this charge cannot be assumed to be
attributable to the overtime case. Similarly, addressing Mr. Parker’s April 11, 2017 “court
order” entry, as the Government notes, no court order was issued in this case on or before
this date. See generally docket. Therefore, it is highly unlikely that this entry pertains to
the case at hand. Mr. Parker’s claim concerning the retirement age for fire inspectors does
not seem applicable to this case either, as Mr. Parker makes no allegations regarding
retirement in his complaint and does not present evidence to show otherwise in the briefing
on attorneys’ fees. See Compl.; see also Pl.’s Reply. As these matters do not relate to the
overtime case, they cannot be awarded.


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        In addition to wholly unrelated matters, Mr. Parker lists entries that the Government
attributes to the retaliation case. Def.’s Resp. at 6. The grouped claims are as follows: (1)
5.1 hours of correspondence with the client, participating in an “interoffice conference
regarding status,” and “review[ing] documents and all emails” on April 11-12, 2017; (2) 4
hours of “finaliz[ing] statement and find[ing] appropriate exhibits” and hosting an in-office
conference on April 13, 2017; (3) reviewing “defendant’s ENE statement” for .50 hours on
April 19, 2017; (4) emailing about the ENE conference for .20 hours on April 25, 2017;
(5) corresponding with the client for .30 hours on May 22, 2017; (6) dealing with settlement
discussions, emails, calls and calculations for 2.6 hours on May 24, 2017 and May 25,
2017; and (7) .30 hours of emails and phone calls “regarding status” on June 1, 2017 as
well as .40 hours of “emails with client and defendants” on June 6, 2017. See Client
History Bill.

        Mr. Parker does not offer any connection between these entries and this overtime
compensation case other than asserting that including ENE preparation time is reasonable,
because the conference involved both the retaliation and overtime compensation claims.
Pl.’s Reply at 3. While Mr. Parker does not provide any information showing that the
contested 5.1 hours of correspondence between April 11 and 12, 2017 relate to this case,
the Government presents evidence that Mr. Parker and AUSA Torres exchanged emails
concerning the ENE and Mr. Parker’s certifications on these dates. Torres Decl. at ¶¶ 6(a),
6(b). Although it is possible that Mr. Parker performed work on the overtime compensation
case on these dates, Mr. Parker has not met his burden in demonstrating such. Therefore,
this time may not be considered toward attorneys’ fees. To the April 13, 2017 entry of
finalizing the statement and appropriate exhibits as well as the in-office conference, no
documents or statements were filed in this case near that date; on the other hand, the ENE
statements were due to the district court on April 17, 2017. Torres Decl. at ¶ 4. Again,
Mr. Parker has failed to show that these charges may be credited to the overtime
compensation claim.

        The April 19 and 25, 2017 entries explicitly mention the ENE conference. See
Client History Bill. The offer of judgment specifies that recovery is limited to charges
solely attributed to this case. The ENE conference was mandated by the district court
concerning the retaliation matter and directly involved AUSA Torres. Although the
Government attended this conference as well, Mr. Parker has not demonstrated that this
time relates or may be solely attributed to the overtime compensation case. Therefore,
these claims cannot stand. Similarly, the May 24 and 25, 2017 claims mention settlement
negotiations which occurred shortly before the retaliation case settled in district court. The
record refers to settlement emails between AUSA Torres and Mr. Parker on these dates but
shows no evidence that these negotiations involved the overtime case. See Torres Decl. at
¶ 6(e).

      The June 1 and 6, 2017 entries are noteworthy in that they are particularly vague.
Mr. Parker’s counsel was simultaneously handling two claims for the client yet generally

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billed time for “emails and phone calls regarding status” and “various emails with client
and defendants.” See Client History Bill. While the latter entry suggests both cases are
involved, calculating or guessing the amount of time devoted to one case compared to
another is not within the Court’s purview or responsibility. Mr. Parker has again failed to
demonstrate that these charges should be credited to the case before this Court.

       The remaining claims of the disputed 15.8 hours are based on a May 23, 2017 entry
for .90 hours and a July 13, 2017 entry for .40 hours. See Client History Bill. The May
23, 2017 entry was redacted by Mr. Parker and should not be included in the fee
calculations. The July 13, 2017 entry seems to be a mistaken duplicate for a conference
call held with the Court on that date. Mr. Parker may only recover for this entry once, so
the second entry will not be considered.

       Of the disputed 15.8 hours, Mr. Parker is not entitled to receive any of these fees, as
he has not demonstrated that these matters pertain to the case at hand.

                 ii. Additional ENE-Related Claims

        The Government contests all entries between May 3 and 8, 2017, as they directly
pertain to the mandatory ENE, which the Government argues is not related to this case.
Def.’s Resp. at 6. Mr. Parker counters that Government counsel’s presence at and
involvement with the ENE prove that these claims should be considered in this action. Pl.’s
Mot. at 3. Again, the offer of judgment explicitly states that attorneys’ fees must be
attributed solely to this case. Mr. Parker admits that these entries do not distinguish
between the retaliation and overtime pay claims, which is one of the reasons why he seeks
recovery of only one-half of these hours. Id. at 4.

       While the Court acknowledges the Government’s attendance at the ENE discussion
and recognizes that there may be connections between the retaliation and overtime
compensation claims, a supposed link is not enough. Mr. Parker has not shown that these
ENE entries are indeed attributable to the overtime compensation claim and has not
explained what percentage of the time spent applies to each case. Therefore, he has not
demonstrated that the Government is responsible for these entries, which amount to 20.4
hours.

                 iii. Costs Following the Offer of Judgment

       Mr. Parker attempts recovery of 7.4 hours of work between September 13 and 20,
2017. See Client History Bill. Fed. R. Civ. P. 68(a) explains that an offer of judgment
involves costs “then accrued,” meaning costs accumulated until the date of the offer. The
offer of judgment in this case permits fees “incurred from March 15, 2017 to date.” Dkt.
No. 9 at 4. The Government presented the offer on August 17, 2017; based on the


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agreement, any costs subsequent to this date cannot be awarded. The Court accordingly
disregards the 7.4 hours claimed after August 17, 2017.

          c. Double Recovery

       The Government also protests a number of Mr. Parker’s claims on the grounds of
double recovery, asserting that Mr. Parker’s counsel seeks compensation for matters
already addressed as a result of the retaliation settlement. Def.’s Resp. at 8. Double
recovery, or “a second payment for the same billable time” is impermissible. Bravo v. City
of Santa Maria, 810 F.3d 659, 668 (9th Cir. 2016). Mr. Parker explains that he does not
seek double recovery, because the retaliation claim resulted in a lump sum settlement that
did not detail attorneys’ fees. Pl.’s Reply at 3. Mr. Parker further states, “it is therefore
impossible to state whether our attorney fees received in the retaliation case included
payment for each and every time entry.” Pl.’s Mot. at 4. As such, Mr. Parker proposes
reducing the award based on ENE entries by one-half. Id.

          The Court acknowledges that double recovery is impermissible but does not believe
it is at issue here. The Court cannot grant ENE fees because Mr. Parker failed to accurately
document time and identify which portion of the ENE hours pertain to the retaliation case
and which involve the overtime pay case.

                                        Conclusion

       The Court recognizes that counsel for both parties worked diligently to achieve a
resolution in this case. However, the importance of accurate record keeping must be
emphasized. As Mr. Parker’s counsel did not keep billing records that properly
distinguished between the client’s retaliation case in the California district court and the
overtime compensation matter before this Court, the Court unfortunately cannot grant the
majority of the claim. The Court GRANTS IN PART Mr. Parker’s motion for attorneys’
fees. The Court finds that counsel’s hourly rate of $375 is reasonable and awards Mr.
Parker $4,087.50 in attorneys’ fees for the undisputed hours worked and adequately
recorded. The Clerk is directed to enter final judgment in this amount. No costs.

       IT IS SO ORDERED.

                                                  s/Thomas C. Wheeler
                                                  THOMAS C. WHEELER
                                                  Judge




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