The second Federal Rail Safety Act jury trial in the nation has precipitated a primer on the award of FRSA attorney fees. In Brig and Buchala v. PATH, the jury found the Railroad violated the FRSA when it retaliated against two workers who complained when an unscheduled train nearly struck them. Here are excerpts from Senior District Judge Patterson’s application of the controlling factors:
Presumptively Reasonable Fee
A "presumptively reasonable fee" is "the product of a reasonable hourly rate and the reasonable number of hours required by the case." The fee applicant bears the burden of documenting the appropriate hourly rate and hours expended.
Reasonableness of Time Billed
"Three conditions must be met to establish reasonableness of the time expended: "First, the hours submitted must be documented with contemporaneous records. Second, the records must not be overly vague. Finally, the billed time must have been reasonably spent."
As for detail, "the records need only specify the date, the hours expended, and the nature of the work done." "Counsel is not required to record in great detail how each minute of his time was expended, but he should identify the general subject matter of his time expenditures." Best practice is to log the task as soon as it is completed.
Time Billed During OSHA Proceedings Is Recoverable
Filing a complaint with OSHA "is a step that is required by the FRSA before an employee plaintiff is allowed to bring an FRSA action in district court. Accordingly, any hours billed pursuant to OSHA proceedings are recoverable."
Time Billed For Requesting Attorney Fees is Recoverable
"It is proper to award attorney fees for time sought in connection with the arguments and submissions made regarding a fee award request."
Establishing Prevailing Market Rates
"In order to determine a reasonable rate, the lodestar looks to the prevailing market rates in the relevant community." The "relevant community to which the court should look is the district in which the case was brought."
"To determine the currently prevailing reasonable rate, courts look first to the lawyer’s level of experience."
"A review of the prevailing rate for an attorney of counsel’s experience in the relevant community is then required." Courts usually establish a spectrum of rates by looking to awards in other cases, with "rates on the highest end of the spectrum reserved for extraordinary attorneys held in unusually high regard in the legal community."
Under the FRSA, a prevailing employee is entitled to an award of "litigation costs," including "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Substantiation of those expenses is accomplished by providing a summary list with invoices attached.
For the complete text of Judge Patterson’s Decision, click here. For free access to the Rail Whistleblower Library, click here.