A district court decision in Fresquez v. BNSF Ry. Co. awarding $540,000 in FRSA attorneys’ fees illustrates the factors involved.

Even when it is reasonable for a railroad worker to retain an out-of-state attorney who specializes in railroad law, the hourly rate awarded still must reflect the prevailing rates in the locus of the trial: such an out-of-state attorney

“must provide evidence of the prevailing market rate for similar service by lawyers of reasonably comparable skill, experience, and reputation in the relevant community.”

Normally this is done by providing Affidavits from comparable attorneys who practice employment law in the relevant geographical location.

However, in the absence of such evidence, the district court

“may, in its discretion, use other relevant factors, including its own knowledge, to establish the rate.”

Such factors may include

“the national rates for experienced FRSA and FELA lawyers, plaintiff’s counsel’s experience, and the level of competence required to successfully litigate the FRSA claim.”

Ideally, FRSA practitioners can produce the Affidavits of comparable local attorneys while also arguing for the application of a higher rate based on the national rates charged by experienced FRSA lawyers.

The hours must be reasonable and well-documented. Time spent in travel is compensable at half the hourly rate. Time spent drafting the attorney fee petition is compensable at the full hourly rate.

Here is the full attorney fee decision in Fresquez v. BNSF Railway. For more on the rights of railroad workers, go to the free Rail Whistleblower Library.