U.S. Supreme Court Opinion:
Recoverable Paralegal Fees
By Jodye Kasher, CP, San Antonio
(Paralegal Fees – U.S. Supreme Court
decision) – Richlin Security Service Co. v
Chertoff, 128 SCt 2007 (2008)
This case arises out of services
performed under a contract
between Richlin Security Service
Co. (“Richlin”) and the Department
of Transportation, wherein Richlin agreed
to provide guard services for detainees at
the Los Angeles International Airport.
The Department of Labor decided that
Richlin’s employees were due back wages
resulting from an error in the wage classification
scheme of the Service Contract.
Richlin then filed a claim against the government
for those back wages and associated
taxes alleging that the original contract
should have been higher to account
for those increased wages and associated
costs.
After Richlin prevailed on that issue,
Richlin then submitted an application for
reimbursement of attorney’s fees, expenses,
and costs to the Board pursuant to the
Equal Access to Justice Act (EAJA) to
include over $65,000 in attorney fees, and
approximately $52,000 in paralegal fees.
Gilbert J. Ginsburg, who began representing
Richlin in 1994, used paralegals
between 1994 and May 23, 2003 over the
course of litigation of this case. During
those nine (9) years, the paralegal billing
rates had increased from $50.00 per hour,
to $90.00 per hour, and ultimately $135.00
per hour. Richlin was awarded approximately
$50,000 in attorney fees by the
Department of Transportation Board of
Contract Appeals, but only $10,587 of the
approximately $52,000 submitted in paralegal
fees, stating that under the EAJA,
paralegal fees could only be reimbursed at
the cost to the firm, not at market rates.
The Board found $35.00 an hour as a reasonable
cost for paralegal fees, stating they
used the internet to determine paralegal
salaries in the Washington, D.C. area.
When Richlin appealed to the U.S.
Court of Appeals for the Federal Circuit,
the Court of Appeals affirmed, holding
that paralegal costs should be regarded as
“other expenses,” not attorney’s fees, and
the other expenses were recoverable only
at cost under the EAJA, as the EAJA’s limited
waiver of sovereign immunity
requires the statute be narrowly construed.
Richlin then filed a petition for certiorari,
which the Court granted on November
13, 2007. Richlin alleged that the Federal
Circuit’s decision conflicted with the
Court’s decision in Missouri v. Jenkins, 491
U.S. 274 (1989), and further that the
Court’s decision was in conflict with the
decision of four other circuits. Petitioner,
Richlin, argued, among other
things, that paralegal services are
a compensable part of “attorney
fees.”
An amicus curiae brief was filed
on behalf of National Association
of Legal Assistants (“NALA”), the
Paralyzed Veterans of America,
and National Organization of
Social Security Claims Representatives
in support of Petitioner,
Richlin. NALA advised they had
also participated in the Missouri v.
Jenkins decision and provided
information on the utilization of
paralegals throughout the United
States. NALA argued that “compensating
paralegal time at prevailing
market rates will encourage the
cost-effective delivery of legal services.”
On June 2, 2008, the Supreme Court of
the United States reversed. The opinion
by Justice Alito, joined in full by six other
justices, and in part by Justices Scalia and
Thomas, held, “…a prevailing party can
recover paralegal fees from the federal
government at prevailing market rates.”
Jodye Kasher is a Certified Paralegal
through NALA, and a Board Certified Paralegal
through the Texas Board of Legal Specialization
in Personal Injury Law. She has
19 years of experience as a litigation paralegal,
and has worked in a variety of areas. Ms. Kasher has been a past paralegal seminar
speaker for the Division, as well as the
Institute of Paralegal Education. She currently
works in the Litigation Department of
the international firm of Fulbright &
Jaworski L.L.P.’s San Antonio office. She is a
member of AAPA, STOP, the Bexar County
Women’s Bar Association, and the Paralegal
Division, currently serving as the Professional
Development Chair for the Division.
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