                                         Slip Op. 07-174

                  UNITED STATES COURT OF INTERNATIONAL TRADE

_______________________________________
                                                 :
FORMER EMPLOYEES OF
    BMC SOFTWARE, INC.,                          :

                                 Plaintiffs,     :
                                                           Court No. 04-00229
                      v.                         :

UNITED STATES SECRETARY OF LABOR, :

_______________________________________:
                          Defendant.

[Calculating award to Plaintiffs for attorneys’ fees and expenses under the Equal Access to Justice
Act.]

                                                                      Dated: November 28, 2007


       Miller & Chevalier Chartered (James B. Altman and Kathleen T. Wach), for Plaintiffs.

        Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Jane C. Dempsey), for Defendant.


                                 MEMORANDUM OPINION

RIDGWAY, Judge:

       In this action, former employees of Houston, Texas-based BMC Software, Inc. (“the

Workers”) successfully challenged the determination of the U.S. Department of Labor denying their

petition for certification of eligibility for trade adjustment assistance (“TAA”) benefits. See

generally Former Employees of BMC Software, Inc. v. U.S. Sec’y of Labor, 30 CIT ____, 454 F.

Supp. 2d 1306 (2006) (“BMC I”). The Workers were subsequently awarded attorneys’ fees and

expenses under the Equal Access to Justice Act (“the EAJA”), in an amount to be finally ascertained
Court No. 04-00229                                                                         Page 2



in accordance with the principles set forth in Former Employees of BMC Software, Inc. v. U.S.

Sec’y of Labor, 31 CIT ____, 2007 WL 2994605, Slip Op. 07-150 (2007) (“BMC II”).

       Specifically, BMC II directed the Workers to file certain additional information required to

calculate the precise amount of their fee award – that is, information on the employment status of

each individual whose time was reflected in the Workers’ Application for Fees and Other Expenses

Pursuant to the Equal Access to Justice Act (the “EAJA Application”), as well as information on the

cost per hour to the law firm representing the Workers of each paralegal/legal assistant, law clerk,

summer associate, and other non-attorney whose time was reflected in the Workers’ EAJA

Application. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 38, Slip Op. 07-150 at 91-92; see

also Order (Oct. 15, 2007).

       Now pending before the Court is the Workers’ Supplement to the Application for Attorneys

Fees and Costs (“Pls.’ Supplement”), as well as the Government’s Response thereto. See

Defendant’s Response to Plaintiffs’ Supplement to the Application for Attorney Fees and Costs

(“Def.’s Response”). The Workers’ Supplement advises that they “understand and accept the

Court’s decision [in BMC II] to disallow certain fees and expenses.” See Pls.’ Supplement at 2.

       In accordance with the parties’ submissions, and in furtherance of BMC I and BMC II, the

Workers are awarded a total of $ 26,930.47 for services rendered by attorneys and non-attorneys,

as well as $ 277.65 in other expenses incurred, as outlined in greater detail below.


                                           I. Analysis

       BMC II analyzed the Workers’ EAJA Application in painstaking detail, as well as the

Government’s objections thereto, rejecting the Government’s threshold argument that its underlying
Court No. 04-00229                                                                            Page 3



position had been “substantially justified,” and that an award of attorneys’ fees and expenses was

therefore unwarranted. See generally BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 8-18, Slip

Op. 07-150 at 16-41. BMC II similarly rejected most of the Government’s objections to the time

expended by the Workers’ counsel. See generally BMC II, 31 CIT at ____, 2007 WL 2994605 at

** 18-40, Slip Op. 07-150 at 42-94.

       However, BMC II disallowed certain hours devoted to public relations and government

relations-type work, because the specific tasks at issue could not be said to have been “related to the

successful representation of [the] client.” See BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 35-

36, Slip Op. 07-150 at 85-86 (quoting Davis v. City and County of San Francisco, 976 F.2d 1536,

1545 (9th Cir. 1992), reh’g denied, vacated in part, and remanded, 984 F.2d 345 (1993)).

Specifically, BMC II disallowed the time reflected in an entry dated March 2, 2005, which was

devoted to “[d]raft[ing] [a] description of BMC representation for pro bono publication” – a total

of 0.5 hours. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 35, Slip Op. 07-150 at 85. Also

disallowed was the time reflected in a March 7, 2005 billing entry – a total of 0.75 hours spent to

“[p]repare proposed draft of revised TAA statute . . . ; research regarding same.” See BMC II, 31

CIT at ____, 2007 WL 2994605 at ** 35-36, Slip Op. 07-150 at 85-86.

       BMC II similarly disallowed time expended on internal law firm administrative matters

related to client billing. See BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 36-37, Slip Op. 07-

150 at 86-87. Disallowed in their entirety were the 0.75 hours spent on “[d]iscussion . . . regarding

issue of recovery of legal fees language for retainer letter; revis[ing] letter to reflect same,”

documented in an August 4, 2004 entry; the 0.5 hours spent to “[i]nvestigate whether retainer letters
Court No. 04-00229                                                                            Page 4



have been received from all clients; e-mail . . . regarding missing letter,” recorded in an October 27,

2004 entry; and the 0.25 hours spent to “[e]-mail client regarding mailing of follow-up retainer,”

reported in an entry dated October 28, 2004. In addition, an entry dated July 21, 2004 (which

recorded time devoted to numerous tasks, including “complet[ing] new matter form”) and an entry

dated August 1, 2004 (which documented time devoted to various tasks, including “[d]raft[ing]

retainer letter”) were docked 0.25 hours and 0.75 hours, respectively. See id.

         BMC II further disallowed the 0.25 hours recorded in an entry dated July 20, 2005 – time

spent “[l]ocat[ing] case-related materials” after all briefing in the underlying litigation had been

completed, where there was no indication that the need to locate the file at that time was for the

benefit of the Workers. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 37, Slip Op. 07-150

at 87.

         In addition, BMC II noted that various litigation support tasks documented in the billing

records submitted with the Workers’ EAJA Application were “best characterized as paralegal work,”

and thus were not compensable at attorneys’ rates or subject to a cost of living adjustment. See

BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 37-38, Slip Op. 07-150 at 88-92. However, as

BMC II further explained, where such tasks implicate some level of specialized training or

experience (even though they do not necessarily require a law degree), the work is compensable

under the EAJA at a lower rate. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 37, Slip Op.

07-150 at 89 (citation and footnote omitted).

         BMC II specifically identified as paralegal-type work the 3.0 hours devoted to “[f]iling for

CIT password; researching case docket, court rules and forms,” recorded in a July 16, 2004 entry;
Court No. 04-00229                                                                               Page 5



the 2.5 hours spent “[p]rinting out case documents from docket database; preparation of draft PO

subscriptions,” documented in a July 20, 2004 entry; the 3.5 hours devoted to “[p]reparation and

filing of Motion, Order, PO Subscriptions, and Stipulation at Court of International Trade; service

of government and clients; copying and organizing documents for case file,” reported in a July 22,

2004 entry; the 2.5 hours spent on “[r]outing and distribution of service copies of letter and proposed

order to government and clients; researching and printing court rules re: time computation and

service procedures,” recorded in a July 27, 2004 entry; the 0.5 hours spent “[o]rganiz[ing] materials

and coordinat[ing] creation of case file in Records Department,” reported in an entry dated August

5, 2004; the 1.0 hour spent “[r]eview[ing] CIT website for instructions on filing documents

electronically . . . ; conference . . . regarding attention to CIT filing issues,” documented in a January

18, 2005 entry; the 1.0 hour devoted to “[p]repar[ation] [of] service copies and a Certificate of

Service for a BMC filing . . . .,” reported in a February 11, 2005 entry; and the 0.75 hours spent on

the same tasks, documented in a February 15, 2005 entry. See BMC II, 31 CIT at ____ & nn.82, 85,

2007 WL 2994605 at * 37 & nn.82, 85, Slip Op. 07-150 at 88-90 & nn.82, 85.

        The entries listed immediately above – with the exception of the entry dated August 5, 2004

– reflect time that was, in fact, billed by non-attorneys. Compare EAJA Application with Pls.’

Supplement at 1 (specifying employment status of timekeepers). Compensable work that is actually

done by paralegals/legal assistants, law clerks, summer associates, and other non-attorneys is

compensable only at the cost to the law firm. See BMC II, 31 CIT at ____, 2007 WL 2994605 at

* 38, Slip Op. 07-150 at 90-91 (discussing Richlin Sec. Serv. Co. v. Chertoff, 472 F.3d 1370 (Fed.

Cir. 2006), cert. granted, 76 U.S.L.W. 3253 (U.S. Nov. 13, 2007) (No. 06-1717)). Thus, both
Court No. 04-00229                                                                           Page 6



because the work at issue was performed by non-attorneys and (independently) because of the nature

of the work, the time documented in the entries listed above – with the exception of the time

reflected in the August 5, 2004 entry – is compensable only at the cost to the law firm (a figure that

is discussed further below). Moreover, due to the nature of the work documented in the August 5,

2004 entry, the time recorded there is also compensable only at a non-attorney rate, even though the

work was actually performed by an attorney. See generally BMC II, 31 CIT at ____ n.84, 2007 WL

2994605 at * 37 n.84, Slip Op. 07-150 at 89 n.84.

       Further, an entry dated July 23, 2004 records time spent on “[r]esearch regarding federal

government policy on alternative dispute resolution . . . .” BMC II rejected the Government’s

argument that that time should be disallowed because the research bore “no direct relation to the

litigation of [the Workers’] claims.” See BMC II, 31 CIT at ____, 2007 WL 2994605 at ** 34-35,

Slip Op. 07-150 at 81-84 (citation omitted). However, the Workers’ Supplement now makes it clear

that the research was performed by a non-attorney. See Pls.’ Supplement at 1. Accordingly, the 0.5

hours spent on the research is similarly compensable only at a non-attorney rate (that is, at the cost

to the law firm).

       Finally, BMC II deducted 2.0 hours from the 20.75 hours devoted to the preparation of the

Workers’ fee application, because the Workers did not prevail on their claim to a “special factors”

enhancement of their fee award. See BMC II, 31 CIT at ____, 2007 WL 2994605 at **38-40, 52,

Slip Op. 07-150 at 92-94, 124.

       Taking into account the various deductions and disallowances summarized above, the

Workers are entitled to an award of fees for a total of 102.5 hours of attorney time expended in 2004,
Court No. 04-00229                                                                             Page 7



52.0 hours of attorney time expended in 2005, and 20.75 hours of attorney time expended in 2006,

as well as an award for a total of 15.25 hours of non-attorney time expended from 2004 through

2006.

        All time in this action was billed at rates greater than the statutory fee cap of $125 per hour.

BMC II therefore held that the Workers’ counsel were entitled to an appropriate cost of living

adjustment. As set forth in BMC II, the applicable EAJA caps (adjusted to reflect cost of living

increases) are $147.63 per hour for attorney hours expended in 2004, $153.38 per hour for attorney

hours expended in 2005, and $158.50 per hour for attorney hours expended in 2006. See BMC II,

31 CIT at ____, 2007 WL 2994605 at ** 54-55, Slip Op. 07-150 at 129-30. Further, the Workers

have requested an award of $35.00 per hour for non-attorney hours, a figure which the Government

has advised is acceptable. See Pls.’ Supplement at 2; Def.’s Response at 2.1




        1
         The Workers’ Supplement explains the derivation of the figure of $35.00 per hour:

        In accordance with [BMC II] and with the decision in Richlin Security Service Co.
        v. Chertoff, 472 F.3d 1370 (Fed. Cir. 2006), counsel for the Workers understands
        that the paralegal work involved in this matter should be reimbursed to the firm as
        an expense, not as fees. However, Richlin did not provide an analysis of the
        methodology used to calculate this expense. Instead, the Department of
        Transportation’s Board of Contract Appeals “took ‘judicial notice of paralegal
        salaries in the Washington DC area . . . [and] awarded paralegal expenses at a rate
        of $35 per hour,” which the Court accepted. Id. at 1374. Rather than attempt to
        separately determine the actual cost to the firm for the non-attorneys . . . who worked
        on this matter, counsel for [the] Workers request that this same amount ($35/hour)
        be applied to determine these expenses here.

Pls.’ Supplement at 1-2.
Court No. 04-00229                                                                         Page 8



                                         II. Conclusion

       So calculated, the Workers are entitled to an award of $ 26,930.47 for services rendered by

attorneys and non-attorneys in this matter, in addition to $ 277.65 for other expenses incurred, for

a total of $ 27,208.12. See BMC II, 31 CIT at ____, 2007 WL 2994605 at * 55, Slip Op. 07-150 at

131-32 (discussing award of expenses).

       Accordingly, pursuant to the EAJA, Defendant shall pay to Plaintiffs a total of $ 27,208.12

for reasonable attorneys’ fees and expenses incurred in this action.

       So ordered.


                                                             /s/ Delissa A. Ridgway
                                                     ___________________________________
                                                                Delissa A. Ridgway
                                                                         Judge


Dated: November 28, 2007
       New York, New York
