Moffitt v. Tunkhannock Area School District et al
MEMORANDUM (Order to follow as separate docket entry) re 82 First MOTION for Attorney Fees filed by Joseph P Moffitt. Signed by Honorable Malachy E Mannion on 1/20/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH P. MOFFITT,
TUNKHANNOCK AREA SCHOOL
CIVIL ACTION NO. 3:13-1519
Presently before the court is the plaintiff’s, Joseph P. Moffitt’s, motion for
attorneys’ fees and costs, (Doc. 82), with four (4) letters supplementing the
motion and adding additional fees, (Docs. 105, 106, 107, 108). In addition,
before the court are the parties’ submissions regarding the calculation of
damages for back pay. (Docs. 80, 81, 104). The plaintiff’s motion and the
parties’ submissions follow a jury verdict entered in favor of the plaintiff on April
19, 2016. The jury in the plaintiff’s case found that the defendant,
Tunkhannock Area School District (“School District”), violated the plaintiff’s
constitutional rights under the Fourteenth Amendment of the United States
Constitution, therein violating Title 42, Section 1983 of the United States
Code.1 For the reasons discussed below, the plaintiff’s motion for attorneys’
fees and costs is GRANTED IN PART in the amount of $79,467.03. In
addition, the plaintiff is awarded back pay in the amount of $20,221.48 and
prejudgment interest on the back pay award in the amount of $3,443.61.
On April 19, 2016, after a two-day trial, a jury found that the defendant
violated the plaintiff’s due process rights under the Fourteenth Amendment
when the defendant suspended the plaintiff from his elementary school
principal position, without pay, on June 7, 2012. The court instructed the jury
that, in awarding the plaintiff any damages, they should consider emotional
and mental harm, harm to the plaintiff’s reputation, and/or the penalty for the
plaintiff’s early withdrawal of his 403(b) retirement plan during his suspension
and any associated tax. The court further instructed the jury that any damages
for back pay, contractual retirement contributions, attorneys’ fees, and costs
of litigating the case would be determined by the court.
Both parties also refer to the Tunkhannock Area School District Board
of School Directors (“School Board”) as a defendant. On April 19, 2016, the
court terminated the School Board as a party. The School District is the sole
defendant left in this action.
The jury awarded the plaintiff $40,000.00 and at the conclusion of trial
the court ordered the parties to submit letter briefs on the computation of
damages for back pay. On April 29, 2016, the plaintiff submitted a letter brief
arguing that he is entitled to 116 days of back pay in the amount of
$44,014.12, inclusive of prejudgment interest. (Doc. 80). In his letter, the
plaintiff also contended that he would be subject to a ten percent increased tax
burden resulting from a lump sum back pay award and argued that he is
entitled to an additional $4,401.41 to “offset” this negative tax consequence,
bringing the total award for back pay to $48,415.53. On April 29, 2016, the
defendant submitted a letter brief arguing that the plaintiff is only entitled to 114
days of back pay in the total amount of $19,587.26, which included
prejudgment interest but also accounted for several deductions, including
federal, state, and local taxes, retirement contributions, and insurance
premiums. (Docs. 81, 81-1). The defendant opposed any offset to the plaintiff
for alleged, negative tax consequences.
On May 3, 2016, the plaintiff also filed a motion for attorneys’ fees, with
a supporting brief filed on May 17, 2016. (Docs. 82, 83). The defendant filed
a brief in opposition on May 31, 2016. (Doc. 85). On June 14, 2016, the plaintiff
filed a reply brief in support of his motion for attorneys’ fees. (Doc. 87). The
plaintiff’s motion requested a total of $1,122.31 in costs and $96,897.81 in
attorneys’ fees on behalf of the plaintiff’s counsel, Andrew J. Katsock, III, and
on behalf of the plaintiff’s sister, Theresa Moffitt, who is a licensed attorney.
Attorney Moffitt aided Attorney Katsock with the litigation.
On October 23, 2016, November 20, 2016, December 7, 2016, and
December 29, 2016, the plaintiff submitted letters to the court supplementing
the motion for attorneys’ fees by indicating additional fees incurred by Attorney
Katsock due to his post-trial work. (Docs. 105, 106, 107, 108). These additional
fees totaled $11,427.62. According to the plaintiff’s last letter to the court, (Doc.
108), the plaintiff’s motion now seeks a total of $109,447.74 in attorneys’ fees
and costs when adding post-trial work.
On August 22, 2016, the court conducted a hearing regarding the issues
of the plaintiff’s award for back pay damages and his request for attorneys’
fees. At this hearing, the parties agreed on two matters: (1) using 116 days as
the appropriate amount of days used to calculate back pay at a rate of $301.95
per day; and (2) the defendant was entitled to deduct ten percent of the
premium for the plaintiff’s health insurance because the defendant paid that
amount on behalf of the plaintiff during the suspension, an amount that would
normally be deducted from the plaintiff’s salary.
At the conclusion of the hearing, the parties still did not agree on a final
amount for the plaintiff’s back pay. The plaintiff’s calculations were based on
his own knowledge, having prepared his own tax returns for many years.
Meanwhile, the defendant’s calculations were based upon documents provided
by the defendant’s business manager. (See Doc. 81). Originally, the plaintiff’s
calculation did not include any deductions, while the defendant’s did. (See
Doc. 80). The plaintiff’s most recent calculations do exclude federal, state, and
local income taxes, taxes paid by employees under the Federal Insurance
Contributions Act, 26 U.S.C. §3101 et seq (“FICA”), and exclude the plaintiff’s
ten percent insurance premium. (See Doc. 104, at 3).
The parties also did not agree on the method of calculating prejudgment
interest, nor did they agree on the negative tax implications that might be
suffered by the plaintiff due to a lump sum award. In addition, they disagreed
substantially regarding the attorneys’ fees submitted by the plaintiff for Attorney
Katsock’s and Attorney Moffitt’s work on the case. Both Attorney Katsock and
Attorney Moffitt testified in support of their fees during the hearing.
At the end of the hearing, the parties requested more time to figure out
the discrepancies in the underlying back pay calculations. The court instructed
the parties to respond to the court in a week with final back pay numbers,
indicating whether the parties agreed or disagreed on a final amount. The court
also advised the plaintiff that he would need to submit proof in support of any
negative tax implication. The court indicated it would need more than the
plaintiff’s own, personal calculation regarding a negative tax implication. The
court also urged the parties to come to an agreement on the amount for back
pay and/or attorneys’ fees.
On September 2, 2016, the plaintiff submitted a letter from Joseph
Lubash, MBA, EA, a managing partner of a tax firm in Montrose, Pennsylvania.
(Doc. 104). Revised back pay calculations were included with the letter. In his
letter, Mr. Lubash indicated that he reviewed the plaintiff’s income and tax
calculations and he confirmed that those calculations were correct. Mr.
Lobash’s letter also stated that any changes to the “base data” provided to him
would alter the actual tax paid for the year. Mr. Lobash did not indicate in his
letter what base tax data was provided to him in reaching his opinion—the
court assumes it included the calculations attached to the letter provided to the
court. The defendant has not submitted any documents to the court since the
hearing, nor has the defendant objected to the revised back pay calculation
provided by the plaintiff. The defendant also has not responded to the plaintiff’s
letters to the court supplementing the motion for attorneys’ fees and costs.
Neither parties have indicated that an agreement has been reached with
regard to the amount of back pay or attorneys’ fees and costs.
THE PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES
The plaintiff originally requested $96,897.81 in attorneys’ fees and
$1,122.31 in costs. His request currently totals $109,447.74. The defendant
made several, initial objections to the plaintiff's request. These objections
included the following: 1) the hours billed and $250.00 rate allotted for Attorney
Katsock’s work are unreasonable; 2) fees for Attorney Moffitt’s work should not
be awarded, or, in the alternative, the hours billed and $150.00 rate for her
work in the case are unreasonable; 3) Attorney Katsock’s and Attorney Moffitt’s
billing is inflated with respect to any clerical or administrative tasks they
performed; 4) the motion seeks fees for tasks not related to this litigation,
namely fees for administrative proceedings; and 5) the results obtained should
reduce the lodestar. The court agrees with some of the defendant’s objections
and will adjust the award accordingly. Thus, the plaintiff’s motion for attorneys’
fees is granted in part. After correcting mathematical errors and making
adjustments, the court finds that the plaintiff is entitled to an award for
attorneys’ fees and costs in the amount of $79,467.03.
The authority for awarding attorney's fees in this case is Title 42, Section
1988 of the United States Code. This provision grants district courts discretion
to award “a reasonable attorney's fee” to the prevailing party “[i]n any action
or proceeding to enforce [civil rights statutes, including Section 1983 actions].”
42 U.S.C. §1988(b). A party may be considered a prevailing party entitled to
attorneys’ fees if “they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing suit.” Farrar v.
Hobby, 506 U.S. 103, 109 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 754,
758 (1980) (per curiam)). Here, there is no dispute that the plaintiff is the
prevailing party in this action and that the plaintiff is entitled to a reasonable
award of attorneys’ fees and costs. The defendant, however, challenges the
reasonableness of the attorneys’ fees and costs requested by the plaintiff.
“The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate. This calculation provides an objective
basis on which to make an initial estimate of the value of a lawyer’s services.”
Hensley, 461 U.S. at 433. This calculation is referred to as the “lodestar.”
Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir. 2008).
Initially, the party seeking attorneys’ fees bears the initial burden of
demonstrating the reasonableness of the fees. See Interfaith Cmty. Org. v.
Honeywell Int'l, Inc., 426 F.3d 694, 703 (3d Cir. 2005) (citing Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). To meet this burden, the
fee petitioner “must submit evidence supporting the hours worked and the
rates claimed.” Rode, 892 F.2d at 1183 (quoting Hensley, 461 U.S. at 433).
Once the fee petitioner has met this initial burden, the party challenging the
request bears the burden of showing that the request is unreasonable.
McKenna v. City of Phila., 582 F.3d 447, 459 (3d Cir. 2009).
Where there are objections, the court is given discretion to reduce fees,
but this discretion is not unlimited. The court may not decrease an award
based on factors not raised by the party opposing the request. Id. Further, if
“the opposing party has not produced contradictory evidence, the district court
may not exercise its discretion to adjust the requested rate downward.”
Watcher v. Pottsville Area Emergency Med. Serv., Inc., 559 F. Supp.2d 516,
521 (M.D. Pa. 2008) (quoting Ridley v. Costco Wholesale Corp., 217 F. App’x
130, 139 (3d Cir. 2007)). In light of any objections, the court must provide its
reasoning when awarding fees and should provide a clear and concise
explanation for the award. Planned Parenthood of Cent. N.J. v. Att’y Gen. of
State of N.J., 297 F.3d 253, 266 (3d Cir. 2002). “[T]he type of reduction made
by a district court need not be exactly the same as that requested by the
adverse party, ‘as long as the fee applicant is given sufficient notice to present
his or her contentions with respect to the reduction that the district court
ultimately makes.’” McKenna, 582 F.3d at 459 (quoting Bell v. United Princeton
Prop., Inc., 884 F.2d 713, 722 (3d Cir. 1989)).
Reasonable Hourly Rates
The defendant disputes Attorney Katsock’s and Attorney Moffitt’s hourly
fee. The plaintiff has submitted the billing for Attorney Katsock and Attorney
Moffitt, in addition to affidavits supporting Attorney Katsock’s fee. No evidence
was submitted to contradict Attorney Katsock’s rate. In light of this, the court
is without discretion to adjust Attorney Katsock’s hourly fee. No evidence was
offered to support or contradict the $150.00 per hour rate for Attorney Moffitt,
other than Attorney Moffitt and Attorney Katsock’s own testimony that her rate
is reasonable. The court finds that her hourly fee is reasonable. These rates
are reasonable, however, only when used to bill for services that are not
clerical or paraprofessional in nature.
The general rule is that a reasonable hourly rate for legal services is
calculated according to the prevailing market rates in the community. Blum v.
Stenson, 465 U.S. 886, 895-96 n.11 (1984); Student Pub. Interest Research
Grp. of N.J., Inc. v. AT&T Bell Labs., 842 F.2d 1436, 1448 (3d Cir. 1988)
(adopting the community market rule). This determination is a finding of fact.
Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). An
attorney's customary billing rate is usually an appropriate place to start in
determining the prevailing market rate, but this is not dispositive. Id. at 180;
D'Orazio v. Washington Twp., No. 07-cv-5097-JEI-KMW, 2011 WL 6715635,
at *2 (D.N.J. Oct. 18, 2011) (citation omitted). “The Court should consider the
experience and skill of the prevailing party’s attorney, and compare the rates
to those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Watcher, 559 F.
Supp.2d at 521 (citing Maldonado, 256 F.3d at 184). Affidavits of other
attorneys practicing in the same market may also be offered as evidence to
establish the prevailing market rate. See Ellis v. Ethicon, Inc., No. 05-726,
2010 WL 715403, at *2 (D.N.J. March 1, 2010).
Attorney Katsock’s Hourly Rate
In the instant matter, the plaintiff seeks hourly fees in the amount of
$250.00 for Attorney Katsock. In support of this request, Attorney Katsock
submitted an affidavit outlining his professional background and his experience
in employment and constitutional litigation and he testified during the August
22, 2016 hearing in support of his fees. In his affidavit, Attorney Katsock
asserts that the different hourly rates requested for Attorney Moffitt and himself
are reasonable and that they are significantly lower than those charged by
attorneys of comparable experience and expertise in the community. The
defendant opposes Attorney Katsock’s rate on the grounds that he is not
experienced in civil rights litigation, although the defendant submits that the
rate is appropriate with respect to civil defense, personal injury, corporate, and
employment litigation. The court disagrees with the defendant’s position.
Attorney Katsock maintains a private law practice and has been
practicing law for 16 years. In his reply brief, the plaintiff listed eleven
employment, civil rights, and constitutional cases that Attorney Katsock has
litigated in this district alone. (Doc. 87, at 4–6). During the August 22, 2016
hearing, the plaintiff also submitted a declaration from Cynthia Pollick, who is
an attorney practicing in this district, primarily in civil rights litigation. (Doc.
102). Ms. Pollick’s declaration states that the requested hourly rate of $250.00
is reasonable because it is well under the market rate charged by attorneys in
the local area. She alleges that her current hourly rate is $400.00 per hour. Ms.
Pollick also attached an exhibit to her declaration containing an affidavit from
defense counsel, Robin Snyder, that was provided in a different case within
this district,2 in which Attorney Snyder affirms “that a plaintiff’s civil rights
attorney in the Scranton legal market with approximately twenty-five years of
experience, based upon [her own] experience and knowledge, typically
charges $250–$300 per hour.” (Doc. 102, Ex. A ¶7). Attorney Katsock was also
cross-examined by defense counsel at the August 22, 2016 hearing and
affirmed his position that his fees are reasonable. Defense counsel did not
present evidence of a market rate lower than the $250.00 requested on behalf
of Attorney Katsock.
The court finds that the plaintiff has sustained his burden as to Attorney
Katsock’s requested rate of $250.00 per hour for legal services. The plaintiff
presented Attorney Katsock’s affidavit and testimony attesting that the rate is
significantly lower than that charged by attorneys of comparable expertise in
the community. The plaintiff also represented in his reply brief that Attorney
Young v. Smith, No. 3:07-cv-00854-MWB (M.D. Pa.).
Katsock litigated several matters involving civil rights and/or constitutional
actions in federal court, particularly in this district. The defendant did not
produce any evidence contradicting the plaintiff’s requested rate. Further,
defense counsel has previously attested in another case that a reasonable rate
for an experienced civil rights attorney in the Scranton legal market is $250.00
to $300.00 per hour. Thus, having met his initial burden for the reasonableness
of Attorney Katsock’s rate, and without credible contradictory evidence from
the defendant, the district court is without discretion, nor does it believe it
necessary to adjust the plaintiff’s requested rate for Attorney Katsock
downward. Watcher, 559 F. Supp.2d at 521. As such, the court will use the
reasonable rate of $250.00 per hour in calculating Attorney Katsock’s fees for
Attorney Moffitt’s Hourly Rate
The plaintiff requested hourly fees in the amount of $150.00 for his sister,
Attorney Moffitt. The defendant objects to any compensation for Attorney
Moffitt in this case and also argues that her rate is unreasonable. With respect
to her rate, the defendant argues that the plaintiff failed to satisfy his burden
in demonstrating the reasonableness of Attorney Moffitt’s $150.00 hourly fee
because her resume is not attached to the attorney fee petition, and that in any
case, she is not experienced in civil rights litigation. The defendant further
argues that Attorney Moffitt should not be billed as an attorney because
Attorney Katsock stated in his affidavit that Attorney Moffitt “acted as [his] legal
assistant in this matter.” (Doc. 82, ¶17). The court finds that Attorney Moffitt’s
hourly rate is reasonable.
The plaintiff did not submit an affidavit from Attorney Moffitt testifying to
her experience. However, during the August 22, 2016 hearing, both Attorney
Katsock and Attorney Moffitt testified that they had an initial conversation on
June 8, 2012, the day after the plaintiff was originally suspended, in which they
agreed that Attorney Moffitt would assist in the case as an attorney and would
be compensated at a rate of $150.00 per hour in the event that the plaintiff
prevailed. Their agreement was never reduced to writing. Attorney Katsock
also testified that Attorney Moffitt served in the capacity of an attorney and not
as an administrative assistant, despite his previous description of her as a
Attorney Moffitt then testified that she has been licensed to practice law
in Pennsylvania for approximately 23 years. She testified that she currently
works as a contract negotiator for Frontier Communications, although she did
previously work for a private practitioner for a few years. Attorney Moffitt
admitted that she had no experience in civil rights litigation. She also testified
that she aided the litigation by doing research and helping with briefs. Attorney
Moffitt’s billing indicates that the majority of her work did, in fact, entail legal
research and writing. (Doc. 82-5). The defendants cross-examined Attorney
Moffitt, but, again, they did not submit any evidence to suggest another rate
would be applicable, seemingly adhering to the theory that she should not be
compensated at all.
Attorney Moffitt is entitled to attorney’s fees at her requested rate of
$150.00 per hour. The court is satisfied that Attorney Moffitt served in her
capacity as an attorney and not as a legal assistant in this matter. Attorney
Moffitt has substantial legal experience and has contributed work product to
this litigation as indicated by the billing submitted to the court. Although she
has not been practicing in the field of civil rights litigation, the lower rate of
$150.00 per hour reflects her level of expertise in the area, as compared to
Attorney Katsock’s rate of $250.00 per hour. Researching case law and
preparing briefs are normal functions performed by an attorney assisting a lead
attorney on a case and these tasks formed the bulk of Attorney Moffitt’s
contribution to the litigation. Accordingly, the court will use the reasonably
proposed $150.00 rate in calculating her lodestar.
Attorney Katsock and Attorney Moffitt use one hourly rate in their billing,
even though some of this time was spent on tasks that did not require the
exercise of legal judgment or skill. The defendant argues that certain tasks
billed were clerical in nature and are, therefore, non-billable. At the hearing,
Attorney Katsock justified his billing at a single rate based on the fact that he
is a solo practitioner without any assistance, either secretarial or paralegal
assistance. The court agrees that using an attorney’s full hourly rate for every
task despite the level of skill required is improper, but does not agree that all
of the time the defendant disputes is non-billable.
The Third Circuit Court of Appeals has “cautioned on a number of
occasions that when a lawyer spends time on tasks that are easily delegable
to non-professional assistance, legal service rates are not applicable.” Planned
Parenthood of Cent. N.J., 297 F.3d at 266 (quoting Halderman v. Pennhurst
State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995)). “The fact that private
lawyers may perform tasks other than legal services for their clients, with their
consent and approval, does not justify foisting off such expenses on an
adversary under the guise of reimbursable legal fees.” Halderman, 49 F.3d at
942. Thus, reducing the rate for tasks requiring less skill is proper. See, e.g.,
McKenna, 582 F.3d at 456–57; Loughner, 260 F.3d at 180.
Contrary to the defendant’s suggestion, however, the work performed on
these task may be recoverable dependant on the relevant market. See
McKenna, 582 F.3d at 457 (affirming the district court’s decision to reduce, but
not eliminate, the rate for clerical tasks). For example, paralegal work is clearly
recoverable based on the market rates for such services or at cost, which is
wholly dependant on the relevant market. Missouri v. Jenkins ex rel Agyei, 491
U.S. 274, 285 (1989). In addition, “[i]t is appropriate to distinguish between
legal work, in the strictest sense, and investigation, clerical work, compilation
of facts and statistics and other work which can often be accomplished by nonlawyers . . . . Such non-legal work may command a lesser rate.” Id. at 288 n.
10 (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th
Cir. 1974)). However, again, “[i]ts dollar value is not enhanced just because a
lawyer [performs these tasks].” Id.
The relevant legal market in this case is the Scranton/Wilkes-Barre
Market. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07cv85,
2014 WL 1321116, at *5–6 (M.D. Pa. March 31, 2014) (explaining the “forum
rate rule”); see also Interfaith Cmty. Org., 426 F.3d at 703–04. Purely clerical
work, such as copying and filing, is non-billable and is usually absorbed in the
attorney’s fee as overhead, which is true in this area and throughout
Pennsylvania. See Poff v. Prime Care Med., Inc., No. 1:13-CV-03066, 2016
WL 3254108, at *12 (M.D. Pa. June 14, 2016) (Scranton forum); Borrell v.
Bloomsburg Univ., — F. Supp.3d —, 2016 WL 4988061, at *43 (M.D. Pa. Sept.
19, 2016) (Scranton forum); Evankavitch v. Green Tree Servicing, LLC, No.
3:12cv2564, 2014 WL 4437645, at *3 (M.D. Pa. Sept. 9, 2010) (Scranton
forum); Walker v. Gruver, Civ. Action Nos. 1:11-CV-1223, 1:11-CV-1224, 2013
WL 5947623, at *14 (M.D. Pa. Nov. 5, 2013) (Harrisburg forum); Sheffer v.
Experian Info. Solutions, Inc., 290 F. Supp.2d 538, 549 (E.D. Pa. 2003)
(Philadelphia forum); Doe v. Ward, 282 F. Supp.2d 323, 334 (W.D. Pa. 2003)
(Pittsburgh forum). In comparison, paralegal work is billable. See, e.g., United
States ex rel. Sharon McKinney v. DHS Techs., LLC, No. 3:11-CV-146, 2015
WL 11675668, at *10 (M.D. Pa. Oct. 27, 2015). Recent awards for paralegal
fees in this district have ranged from $95.00 to $170.00 per hour. See Arlington
Indus., Inc. v. Bridgeport Fittings, Inc., No. 3:02-CV-0134, 2016 WL 3522964,
at *3 (M.D. Pa. June 28, 2016) (awarding $170/hr); id. (awarding $110/hr);
Evankavitch, 2014 WL 4437645, at *4 (awarding $95/hr).
The court has reviewed the disputed entries in Attorney Katsock’s billing
paralegal/paraprofessional work and should be treated accordingly:
Filing of documents with Clerk of Court: 6/6/13, 9/2/13, 9/13/13,
9/16/13, 12/10/13, 1/16/14, 3/23/14, 9/14/14, 10/29/14, 11/21/14,
3/4/16, 3/13/16, 4/1/16, 4/13/16, 4/14/16, 5/17/16, 6/14/16, two (2)
entries on 7/15/16, 8/9/16, 9/1/16, 10/23/16, 11/20/16, 12/7/16
Preparing waivers and certificates of service: 6/18/13, 9/2/13,
9/5/13, 9/12/13, 11/9/13, 12/10/13, 1/15/14, 3/22/14, 4/29/14,
6/9/14, 6/19/14, 7/21/14, 9/13/14, 10/27/14, 10/29/14, 11/19/14,
11/21/14, 3/1/16, 3/12/16, 4/1/16, 5/17/16, 7/15/16, 8/9/16
Filing documents, whether in person or electronically, requires no legal skill
and is a purely clerical or administrative task. See McKenna, 582 F.3d at 457
(describing clerical work to include faxing, emailing, filing, scanning,
assembling, and conforming). As such, it is non-billable and is absorbed in the
attorney’s fee. See Evankavitch, 2014 WL 4437645, at *3. Therefore, these
tasks must be eliminated from the final lodestar altogether.
Document preparation, however, does not clearly fall within the realm of
clerical work—even for a simple document such as a certificate of service. See
Jenkins, 491 U.S. at 288 n. 10 (listing “document production” as a
compensable task performed by a paralegal). At the hearing, Attorney Katsock
argued that this task has a legal component because service is required by law
and the rules. Instead, the court finds that this task falls within the realm
between legal and non-legal work that may be performed by an attorney or a
paralegal. Certainly, if an attorney prepared the entire document, including the
certificate of service, and simply billed for the preparation of the document
without breaking down the components of the document there would be no
dispute that the billing (at the attorney’s rate) would be appropriate. Thus, there
is an artificial line drawn between legal and clerical work just because the
attorney decided to provide exacting detail regarding his time spent preparing
a document, especially where, as here, the attorney is a solo practitioner
without legal assistance.
Although the defendant argues that such work is entirely clerical, the
court is not convinced that this is the case and instead finds that this work falls
somewhere in between the legal and clerical divide. While the court does not
seek to punish the Attorney for providing a detailed account of his time, the
court does find that billing at Attorney Katsock’s sole rate for this task is
inappropriate. The dollar value for these services should not be enhanced just
because a lawyer performed the task. Jenkins, 491 U.S. at 288 n. 10. Instead
the preparation of these simple documents are more appropriately billed at the
rate of a paralegal, a paraprofessional whose traditional role crosses between
clerical and legal frequently. In this market, paralegal pay varies substantially
and neither parties provided evidence of what rate might apply to tasks
assigned to paraprofessionals. The court finds the lower rate of $95.00 per
hour appropriate in light of cases cited in this forum and in light of the hourly
rates for Attorney Katsock ($250/hr) and his less experienced counterpart in
this matter, Attorney Moffitt ($150/hr).3
In addition to the above compensation for Attorney Katsock, the
defendant objects to any compensation for Attorney Moffitt for her hand
delivery of exhibits to court prior to trial. Like the filing of documents, this task
is purely clerical and administrative, requiring no legal skill. Thus, this task
should also be eliminated entirely from the billing as a cost absorbed in the
This rate is also not far from the rate previously attested to by defense
counsel, Robin Snyder, in a different case. (See Doc. 102, Ex. A ¶9 (attesting
that paralegal rates in the Scranton area range from $70.00 to $90.00 per
Hours Reasonably Expended
Based upon the defendant’s objections, the court must next “determine
whether the number of hours spent on the litigation was reasonable.” Watcher,
559 F. Supp.2d at 522. The court should review the time charged, decide
whether the hours entered for certain tasks are reasonable, and exclude those
that are “excessive, redundant, or otherwise unnecessary.” Id. at 522–23
(quoting Hensley, 461 U.S. at 434). “Hours that are not properly billed to one’s
client are not properly billed to one’s adversary pursuant to statutory authority.”
Hensley, 461 U.S. at 434 (citation omitted). On numerous occasions, the
defendant argues that certain entries are excessive. The court agrees with the
defendant in part. In addition, the court notes that the hours provided by the
plaintiff in his motion are mathematically incorrect.
Mathematical Corrections for Duplicative Billings
The plaintiff originally requested $96,897.81 in attorneys’ fees and
$1,122.31 in costs, stating that he seeks compensation for 285.69 hours of
work performed by Attorney Katsock and 136.5 hours of work performed by
Attorney Moffitt. His request currently totals $109,447.74 when taking into
account post-trial work. A review of the billing provided exposes, however, that
his current request is mathematical incorrect due to duplicate entries located
in the request for attorneys’ fees and the request for costs.
Within Attorney Katsock’s line item billing, there are numerous entries
entitled “expenses.” These “expenses” total $885.31. In addition to being part
of Attorney Katsock’s line-item billing, this amount was also submitted for
compensation separately in a document titled “Costs and Expenses.” (See
Doc. 82-4 (costs totaling $885.31 for court filing fees, copies of deposition
transcripts, and postage)). Thus, it appears the plaintiff’s motion includes a
request for $885.31 submitted twice. The plaintiff cannot seek expenses
included in Attorney Katsock’s billing when those expenses were requested
In addition, the $96,897.81 original amount for attorneys’ fees also
included a $5,000.00 flat-fee that Attorney Katsock was willing to accept for
any additional legal services. At the time of the original motion, Attorney
Katsock estimated a total of 20–30 additional hours of post-trial work would still
be needed in the case. However, on October 23, 2016, November 20, 2016,
December 7, 2016, and December 29, 2016, the plaintiff submitted letters to
the court supplementing the motion for attorneys’ fees by indicating the actual,
additional fees incurred by Attorney Katsock due to his post-trial work. (Docs.
105, 106, 107, 108). These additional fees total $11,427.62, which includes
$2.62 in expenses. The plaintiff cannot simultaneously request a proposed flatfee in addition to actual fees incurred. Like the duplicate costs, the plaintiff’s
original request for post-trial fees must be adjusted to remove the flat-fee now
that actual fees have been submitted.
A thorough review of Attorney Katsock’s bills reveals that the total hours
billed for legal services performed up until the date of the motion—from June
2012 through April 2016—is actually 282.15 hours, not 285.69 hours. The
plaintiff’s letters to the court since the filing of the motion indicate an additional
45.5 hours of legal work have been performed, bringing Attorney Katsock’s
total to 327.65 hours. Attorney Moffitt’s hours total 136.5 hours as initially
indicated in the plaintiff’s motion. Properly calculating these amounts to
remove duplicative costs, the plaintiff’s proposed lodestar totals $102,387.50.4
Initial Lodestar Calculation
Attorney Katsock (327.65 hrs at $250.00/hr)
Attorney Moffitt (136.5 hrs at $150.00/hr)
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $102,387.50
Having determined that purely clerical tasks were non-billable, the
plaintiff’s proposed hours are further reduced. As explained above, Attorney
Katsock’s filing of documents cannot be billed. There were 24 entries in the
billing for this task, 23 billed at .25 hour and one billed at .5 hour. Removing
these tasks reduces Attorney Katsock’s total billing time by 6.25 hours, from
327.65 hours to 321.4 hours. Similarly, the clerical task performed by Attorney
Moffitt must be removed—her hand delivery of exhibits. This entry was for 1.5
hours. Deducting this amount brings Attorney Moffitt’s billing of 136.5 hours
down to 135 hours.
Excessive Amount of Time on Tasks
The defendant argues that the time allegedly expended on certain legal
tasks was unreasonable. As examples of this improper billing, the defendant
cites Attorney Katsock’s billing of .25 hour to prepare certificates of service,
0.25 hour to review certificates of concurrence, and his billing of 0.25 hour to
review a court order where the final order was identical to the proposed order
filed by Attorney Katsock and was simply signed and dated by the court. The
court agrees with the defendant that the plaintiff seeks compensation for
Attorney Katsock’s excessive time spent preparing or reviewing straightforward
In addition to arguing that the preparation of service documents was nonbillable, the defendant also argued that the time spent on this task was
unreasonable. The plaintiff billed 0.25 hour for each of the 23 entries made for
preparing a certificate of service, totaling 5.75 hours. The court has already
determined that this task is billable at a lesser rate and should be billed at the
market rate for such a task, in this case $95.00 per hour instead of Attorney
Katsock’s full, $250.00 hourly rate. However, the court also agrees with the
defendant that the amount of total time billed for this task is unreasonable.
It is unreasonable to request compensation for fifteen minutes of time to
prepare waivers or certificates of service, which simply requires changing a
few lines once a template for a certificate of service in the case is prepared.
This is especially true here where there was a sole individual overseeing and
preparing all certificates in the case, Attorney Katsock. The court finds it
implausible that it took exactly fifteen minutes for Attorney Katsock, a licensed
attorney, to prepare this simple document. Accordingly, the court will reduce
the amount of time allotted to these time entries to 0.15 hour (nine minutes).
This reduces the billing from 5.75 hours to 3.45, which will billed at a lesser
paralegal rate—in this instance $95.00 per hour.
Next, the defendant objected to the billing of 0.25 hour to prepare and/or
review standard certificates of concurrence/non-concurrence.5 There are three
entries for these tasks dated 1/8/14 (review), 11/21/14 (prepare), and 11/25/15
(review). The court agrees that this document is similar to the boilerplate
document used in a certificate of service. It is not plausible it took fifteen
minutes to prepare or review these standard documents. Thus, the court will
reduce these entries from 0.25 to 0.15 hour as it did for the service documents.
This further reduces the hours in the lodestar calculation by .45 hour.
The defendant’s next objection relates to a November 25, 2014 billing
entry titled “Review Court Order granting Plaintiff’s Motion for Leave of Court.”
As its title suggests, this entry relates to an order issued by the court on
November 25, 2014. (See Doc. 49). This entry totals .25 hour. The defendant
argues that review of this document could not have taken that long given its
simplicity and given the fact that it was identical to the proposed order
submitted by the plaintiff in his motion for leave of court. The court agrees. The
plaintiff’s proposed order and the court’s order are identical and the proposed
The defendant has not argued that this is a clerical task, unlike the
argument made for Attorney Katsock’s preparation of service documents.
document was simply signed and dated, therein converting it to a final order.
In addition, the order was comprised of two lines of text and it is implausible
that it took fifteen minutes for a skilled attorney to read and understand its
contents. Accordingly, this entry will be reduced from .25 to .1 hour.
Next, the defendant objects to Attorney Katsock’s billing for a discussion
with the plaintiff about costs, particularly a 5/30/14 entry for a telephone call
regarding the cost of a deposition transcript billed at 0.2 hour. Rule 1.5(b) of
the Pennsylvania Rules of Professional Conduct provides that “the basis or
rate of the [attorney’s] fee shall be communicated to the client, in writing,
before or within a reasonable time after commencing the representation.” In
this instance, representation of the plaintiff began in June of 2012. Assuming
Attorney Katsock advised the plaintiff of costs that might be associated with his
case when he undertook the representation, the court can see no reason why
Attorney Katsock would need to have another conversation regarding costs
nearly two (2) years later. As such, this entry will be disregarded.
iv. Dual and Duplicative Tasks
Next, the defendant argues that certain entries submitted by Attorney
Moffitt are duplicative. A reduction for duplication of work is only appropriate
“if the attorneys are unreasonably doing the same work.” Rode, 892 F.2d at
1187 (emphasis in original) (quotations omitted). Courts have recognized the
need to retain multiple counsel in certain complex cases. See, e.g., Jean v.
Nelson, 863 F.2d 759, 772 (11th Cir. 1988). Here, the issues presented were
fairly straightforward and did not require duplicate counsel at the school board
proceedings and at trial.
Based on a comparison of Attorney Katsock’s and Attorney Moffitt’s
entries, both attorneys attended the school board hearings and the trial. The
court finds Attorney Moffitt’s relevant entries to be unreasonably duplicative as
she played no role in any of these proceedings. Her time entries simply state
“school board hearing 1,” “school board hearing 2,” and “school board hearing
3" on 9/19/12, 10/24/12, and 11/11/12. Attorney Katsock was the lead attorney
in these proceedings, and only he spoke on behalf of the plaintiff. Attorney
Moffitt testified at the August 22, 2016 hearing that she did not present or
cross-examine any witnesses during the school board proceedings. Thus, her
role was clearly that of an observer. Attorney Moffitt billed a total of 9 hours for
these proceedings. The court will eliminate this time as it is duplicative.6
As discussed further below, the time spent at the school board
proceedings did not further this particular litigation and should be eliminated
for this reason as well.
The court also finds that Attorney Moffitt’s presence at trial was
duplicative. This was a relatively straightforward case involving one issue:
whether the plaintiff received a proper hearing before his suspension on June
7, 2012 under the Supreme Court precedent of Cleveland Board of Education
v. Loudermill, 470 U.S. 532 (1985). The trial lasted only two days. Moreover,
like her entries for the school board proceedings, Attorney Moffitt’s time entries
for the trial do not indicate her role as one other than that of an observer. The
time entries simply state “trial day 1" and “trial day 2" on April 18, 2016 and
April 19, 2016, respectively. Attorney Moffitt also testified at the August 22,
2016 hearing that her role at trial was similar to her role at the school board
proceedings. The plaintiff has not established what that role was and the court
concludes that it was simply the role of observer and unreasonably duplicative.
The total time billed for the trial is 12 hours. Deducting for Attorney Moffitt’s
duplicative work in the school board proceedings and at trial, her time will be
reduced by 20.5 hours in the amount of $3,075.00.
Vague Time Entries
In addition to objecting to the reasonableness of the hours billed, the
defendant argues that the time entries submitted on behalf of Attorney Katsock
and Attorney Moffitt are vague. The court agrees, in part, which will result in a
further reduction of 24.5 hours of time in her billing.
The party requesting fees must submit “fairly definite information as to
hours devoted to various general activities, e.g., partial discovery, settlement
negotiations, and the hours spent by various classes of attorneys.” United Auto
Workers Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 291 (3d
Cir. 2007) (quoting Evans v. Port Auth., 273 F.3d 346, 361 (3d Cir. 2001)). It
is not required that the attorney submit “the precise activity to which each hour
was devoted” nor is it required that “records be kept by task—e.g., for each
motion, issue or part of the case.” Washington v. Phila. Cnty. Ct. of C.P., 89
F.3d 1031, 1037–38 (3d Cir. 1996) (citation omitted). However, the petition
“must be specific enough for the district court ‘to determine if the hours claimed
are unreasonable for the work performed.’” Souryavong v. Lackawanna Cnty.,
159 F. Supp.3d 514, 534 (M.D. Pa. 2016) (quoting Washington, 89 F.3d at
1037). Where possible, the entry should indicate the nature of the activity, the
subject matter of the activity, the date the activity took place, and the amount
of time spent on the activity. Rode, 892 F.2d at 1191. “Where the
documentation of hours is inadequate, the district court may reduce the award
accordingly.” Hensley, 461 U.S. at 433.
With regard to Attorney Katsock’s time, the defendant specifically objects
to two separate entries for legal research submitted in Attorney Katsock’s
billing: an April 13, 2013 entry for 3.5 hours for “[r]esearch and review various
causes of action for Joe Moffitt to seek back-pay and damages”; and, a May
28, 2013 entry for 4.0 hours for “Legal Research for federal court Complaint.”
The defendant objects to the purported vagueness of these time entries, the
amount of time spent, and the duplicative nature of the entries. The court finds
that the plaintiff has satisfied his burden in requesting compensation relating
to the above time entries. The entries describe the performance of legal
research for a specific purpose on a specific date, and hence provide sufficient
detail. The court also concludes that the time spent on the research was not
excessive, and performance of several hours of research in anticipation of
filing a complaint more than a month apart was not duplicative.
The defendant additionally argues that many of Attorney Moffitt’s time
entries are vague. The court agrees that many of Attorney Moffitt’s time entries
regarding legal research lack sufficient detail to warrant payment. There are
several vague descriptions for legal research which simply indicate legal
research was performed but do not indicate what was being researched.
These time entries include the following entries: Legal Research - 9/20/12 (1.5
hours); 11/11/12 (3.0 hours); 11/12/12 (4.0 hours); 11/28/12 (2 hours); 1/7/14
(2 hours); 8/27/14 (1.5 hours); 10/2/15 (.5 hour); 12/28/15 (2 hours); 2/17/16
(3 hours); 4/11/16 (1.0 hour); 4/18/16 (two entries of 2.0 hours each). (Doc. 825). In comparison, some entries do provide a general description of not only
the activity being performed but also the general subject matter being
researched. (See, e.g., id. (entry dated 10/11/12 titled “legal research
[L]oudermill and similar”)).
Because the above time entries provide no description of the subject
matter of the legal research the court is unable to assess their reasonableness.
These entries do not indicate what Attorney Moffitt was researching even in
cursory detail, unlike other entries which give some description to guide the
court. Thus, they are unreasonably vague. These entries total 24.5 hours of
time. Accordingly, 24.5 hours will be deducted from Attorney Moffitt’s fees.
Next, the defendant opposes any compensation for time spent
representing the plaintiff during administrative proceedings. Specifically, the
defendant rejects that the plaintiff’s counsel should be compensated for
services related to the plaintiff’s unemployment compensation petition and to
representation at the proceedings before the School Board. (Doc. 85, at 1–4).
The plaintiff argues that the work performed in these administrative
proceedings “contributed directly to the successful outcome in federal court
and obviated the need for comparable work in the federal action.” (Doc. 87, at
16). The court finds that work related to the plaintiff’s request for
unemployment compensation should be eliminated from the lodestar. Work
related to the school board proceedings should be reduced dramatically, but
should not be eliminated altogether.
In Webb v. County Board of Education, 471 U.S. 234 (1985), the
Supreme Court held that a prevailing plaintiff in a Section 1983 action is
generally not entitled to claim attorney's fees for services rendered during
administrative proceedings because such proceedings do not consist of time
“reasonably expended on the litigation.” Webb, 471 U.S. at 242 (quoting
Hensley, 461 U.S. at 433). The Supreme Court, however, carved out an
exception where the plaintiff establishes that a “discrete portion of the work
product from the administrative proceeding was work that was both useful and
of a type ordinarily necessary to advance the civil rights litigation to the stage
it reached before the settlement.” Id. at 243; see also Keenan v. City of Phila.,
983 F.2d 459, 474 (3d Cir. 1992). “Application of this standard is left to the
discretion of the district court.” Pennsylvania v. Del. Valley Citizens’ Council for
Clean Air, 478 U.S. 546, 561 (3d Cir. 1986). In order to merit fees for the
administrative proceedings, the plaintiff must identify a “discrete portion of the
work product” from the unemployment benefits petition and the school board
proceedings, respectively, and demonstrate that the work product was “both
useful and of a type ordinarily necessary to advance the civil rights litigation.”
Webb, 471 U.S. at 243.
The court finds that the plaintiff is not entitled to attorneys’ fees relating
to his application for unemployment benefits. The plaintiff did not identify a
discrete portion of work product relating to his unemployment benefits petition
that advanced the instant case, a Section 1983 action grounded in a
procedural due process deprivation. Eligibility under Pennsylvania’s
unemployment compensation statute requires a termination of the employee
for no-fault causes. See 42 PA. STAT. ANN. §752. The plaintiff’s Section 1983
action was based on an improper suspension lacking proper procedural due
process measures. The court sees no connection between these two actions,
much less any work from one that might further the other.
Based on a review of the plaintiff’s billing records, the court’s calculation
shows that Attorney Katsock billed 2.05 hours, or $512.50, for the plaintiff’s
unemployment compensation application.7 The submitted time entries do not
reflect that Attorney Moffitt performed any work towards the plaintiff’s
unemployment compensation petition. Thus, the court will reduce Attorney
Katsock’s billing by 2.05 hours, or $512.50.
In contrast, the court recognizes that a portion of Attorney Katsock’s and
Attorney Moffitt’s work on the school board proceedings was “associated with
the development of the theory of the case” and formed the basis for the
plaintiff’s constitutional claims. Webb, 471 U.S. at 250. However, there is no
clear delineation in the billing separating Attorney Moffitt’s and Attorney
Katsock’s work on the school board proceedings from the work on the federal
suit and the unemployment compensation petition. All entries after the third
hearing in November of 2012 clearly relate to the federal suit, with the first
entry by Attorney Katsock titled “[r]eview email from Theresa Moffitt regarding
constitutional suit.” (Doc. 82-2, at 10). The entries before December are
questionable and the court reviews them carefully based on the defendant’s
See Doc. 82-2 (2012 time entries on 8/16, 9/14, 9/25, 10/5, 10/11,
10/12, 2 entries on 10/16, and 10/27).
The total time submitted for reimbursement up to and including the
third hearing is 99.55 hours. Attorney Moffitt’s time totals 45 hours, which is
reduced to 31.5 hours when eliminating the vague and duplicative time entries
In order to isolate the work that aided the litigation in this case, it is
important to clarify what issues were litigated and were ultimately successful.
In this instance, the plaintiff was successful on his Fourteenth Amendment
claim based on the defendant’s failure to provide him proper procedural due
process measures, as set forth in Loudermill, prior to suspending him without
pay on June 7, 2012. The administrative hearings after the suspension, while
providing one possible avenue for obtaining monetary relief, were not required
in order to bring the constitutional claim under Section 1983. The hearings
were required under Pennsylvania’s statutory law, not federal constitutional
law. The hearings restored the plaintiff to his position as principal. The federal
claim declared the initial suspension to be unconstitutional.
Some of Attorney Moffitt’s and Attorney Katsock’s work in defending the
plaintiff at the school board proceedings clearly aided the main, underlying
issue in this case—whether the defendant violated the due process
requirements set forth in Loudermill. As such, the court finds that those entries
indicating research or work relating to Loudermill may be compensated as the
type of work that would normally advance the civil rights litigation because
eliminated previously. Attorney Katsock’s time totals 54.55 hours, which is
reduced to 52.5 hours when eliminating the time spent on the unemployment
research on Loudermill would be needed in the Section 1983 action with or
without the school board proceedings. Research on Loudermill is directly
reflected in some of counsels’ time entries. (See, e.g., Doc. 82-2, at 8)
(10/31/12 entry of Attorney Katsock for 2.0 hours on “Research on Loudermill,
Notice, and Due Process”); (Doc. 82-5, at 2) (11/01/12 entry of Attorney Moffitt
for 0.5 hour on “1st draft loudermill brief to andy with decription
[sic]/explanation”). These entries are reimbursable.
In addition, entries reviewing documents submitted by the School Board
and correspondence between the plaintiff and the school board members
would be necessary to the litigation, with our without the school board
proceedings. A review of the underlying records from and between the parties
is undoubtably required for competent representation. Similarly, the initial
phone call between the plaintiff, Attorney Katsock, and Attorney Moffitt would
be necessary to communicate the underlying facts leading to the
representation. As such, these entries are proper. Totaling these and the
above entries provides a total of 19 hours for Attorney Moffitt9 and 6.25 hours
for Attorney Katsock.10
Not all of the services performed in relation to the school board hearings
were “useful and of a type ordinarily necessary to advance the civil rights
litigation.” Webb, 471 U.S. at 243. Other than those noted above, the rest of
the entries prior to and including the third school board proceeding appear to
relate specifically to the issues raised during those proceedings. For example,
Attorney Katsock’s time entries reflect correspondence on scheduling and
coordinating subpoenas, as well as discussions with the plaintiff on witnesses
for the hearings. (See, e.g., Doc. 82-2, at 3, 5). In addition, there are entries
for the preparation and attendance of the three proceedings following the
plaintiff’s suspension. These entries did not advance this particular litigation
and will not be compensated.
The court deems the following entries proper: 1) conference call dated
6/8/12 (1 hour); 2) Loudermill research and related brief drafting dated
10/11/12 (2 hours), 10/29/12 (9 hours), 10/30/12 (.5 hour), 11/1/12 (.5 hour),
two entries on 11/4/12 (4.5 hours); and 3) meeting with plaintiff regarding
research dated 10/19/12 (1.5 hours). (Doc. 82-5, at 2).
The court deems the following entries proper: 1) conference call dated
6/8/12 (1 hour); 2) review emails from school members and communication
with the plaintiff regarding said emails dated 9/5/12 (.5 hour) and 9/10/12 (.25
hour); 3) review documents provided by the School Board dated 10/15/12 (1
hour); and 4) Loudermill brief drafting dated 10/31/12 (2 hours) and 11/9/12
(1.5 hours). (Doc. 82-2, at 2, 5, 7–9).
Similarly, attendance at the proceedings will not be compensated. At the
August 22, 2016 hearing, Attorney Katsock testified that the interests
presented at the school board proceedings and those necessary to succeed
on the federal claim were inter-woven and that evidence came out of those
proceedings that was useful to the due process question in this case. Attorney
Katsock likened the school board proceedings to a fact investigation that might
occur prior to the filing of a complaint. However, upon cross-examination,
Attorney Katsock admitted that he later took the deposition of several school
members who he cross-examined at the school board proceedings. Based on
this, the court is not convinced that the evidence obtained at the school board
proceedings directly related to the underlying case or, it finds in the alternative,
that they are duplicative due to the later depositions that Attorney Katsock
There were many issues raised in the underlying school board
proceedings that were unrelated to the Loudermill issues in this case. Thus,
other than those that clearly indicate Attorney Katsock and Attorney Moffitt
were researching Loudermill and those that the court finds obviously
necessary to litigating this case, the plaintiff has not identified the “discrete
portion of work product” that aided him in his Fourteenth Amendment claim.
Webb, 471 U.S. at 243. Accordingly, Attorney Moffitt’s fees will be reduced by
12.5 hours to eliminate some of the work relating to the post-suspension
school board proceedings. Attorney Katsock’s fees will be reduced by 2.05
hours to eliminate all work on the unemployment compensation petition and by
46.25 hours to eliminate some work on the school board proceedings.
After reducing the billing to account for miscalculations, clerical tasks,
unreasonable amounts of time spent on various tasks, duplicative work, vague
entries, and the time spent on administrative proceedings not furthering this
litigation, the court finds that the reasonable hours spent on this case total
347.5 hours. Attorney Moffitt’s reasonable hours total 77.5 hours. Attorney
Katsock’s reasonable hours total 270 hours.
Reasonable Hours Calculation
Initial Hours Requested
Reduction (Clerical tasks)
Reduction (Duplicative work)
Reduction (Vague entries)
Reduction (Re: Post-suspension Hearings)
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77.5
Initial Hours Requested
Reduction (Clerical tasks)
Reduction (Service Docs.)
Reduction (Concurrence Certs.)
Reduction (Review 11/25/14 Order)
Reduction (Telephone call Re: Costs)
Reduction (Unemployment Comp. Petition)
Reduction (Re: Post-suspension Hearings)
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270.0
TOTAL HOURS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347.50
Having determined the reasonable rates to be used and the reasonable
number of hours, the plaintiff’s final lodestar amounts to $78,590.25.
Final Lodestar Calculation
266.55 . . . . . . . $66,637.50
3.45 . . . . . . . . . $ 327.75
77.5 . . . . . . . . . $11,625.00
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$78,590.25
Adjustment to the Lodestar
Next, the defendant argues that the lodestar amount should be reduced
to reflect the plaintiff's limited success in the case, since the plaintiff only
succeeded in one of the six causes of action he pled in his amended
complaint. The plaintiff’s amended complaint alleged the following six counts:
Counts I & II for violation of plaintiff’s due process rights and rights to equal
access to justice; Count III for First Amendment retaliation; Count IV for
violation of associational rights; Count V for breach of contract; and Count VI
for wrongful suspension in violation of public policy. (Doc. 25). On February 3,
2016, the court partially granted the defendant’s motion for summary judgment
and dismissed all claims except the Count I due process claim that eventually
went to trial. The court does not agree that a reduction is warranted based on
the plaintiff’s failure to succeed on every single claim.
“[A]n attorney’s work on unsuccessful claims not related to the claims on
which the attorney succeeded is not compensable, because such work ‘cannot
be deemed to have been expended in pursuit of the ultimate result achieved.’”
McKenna, 582 F.3d at 455 (quoting Hensley, 461 U.S. at 434–35). “[D]istinctly
different claims for relief that are based on different facts and legal theories”
must be treated as unrelated claims and the court must apportion the work of
the attorney accordingly. Hensley, 461 U.S. at 434–35; see also McKenna, 582
F.3d at 457. There is no precise rule for making an adjustment to account for
the overall level of success achieved, but the court “may attempt to identify
specific hours that should be eliminated, or it may simply reduce the award to
account for the limited success.” Id. at 436–37. However, if the claims all stem
from a “common core of facts or . . . [are] based on related legal theories,” the
district court may not be able to divide and apportion individual claims and
should, instead, “focus on the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the litigation.” Id. at
Here, in light of the results obtained by the plaintiff in this case, the court
finds that a downward adjustment of the lodestar amount is inappropriate.
While the plaintiff was unsuccessful on some of his claims, most of the
unsuccessful claims were related to the one he ultimately prevailed on, the
constitutional due process claim. The due process/equal access to justice
claim (Counts I & II), First Amendment retaliation claim (Count III), breach of
contract claim (Count V), and violation of public policy claim (Count VI) all stem
from the plaintiff’s suspension on June 7, 2012 and relate to the lawfulness of
that suspension under different theories of law—i.e, that it was procedurally
improper, improper in itself, or was based on improper motives. The violation
of associational rights claims (Count IV) does not relate to the suspension and,
instead, relates to the lawfulness of the school board proceedings. However,
the plaintiff did not defend that claim on summary judgment, as noted in the
court’s February 3, 2016 Memorandum. (Doc. 50, at 30). Thus, the court
cannot conclude what, if any, time was spent litigating this small, unrelated
claim in the larger litigation.
Further, looking at the relief requested and the results obtained, the court
finds that apportionment is inappropriate. All of the relief requested in the
amended complaint pertained to all counts in the complaint as a whole. The
monetary relief requested included reimbursement for back pay, compensatory
damages for harm to the plaintiff’s reputation, compensation for loss of income,
compensation for the ten percent penalty the plaintiff paid for early withdrawal
from his 403(b) plan, and attorneys’ fees and costs. The plaintiff requested an
amount in excess of $75,000.00 for all compensatory damages. The jury
awarded the plaintiff $40,000.00 and this court will award him $20,221.48 in
back pay after taxes and $3443.61 in pre-tax, prejudgment interest, as
discussed below. In total, the final amount will be near the amount originally
requested by the plaintiff, though not exact. Thus, it appears clear that the
plaintiff achieved overall success in this action, even though he succeeded
using only one of the several theories originally pled in the amended complaint.
Because of this, the court rejects the defendant’s request for a downward
adjustment in the lodestar calculation.
Finally, the defendant disputes the plaintiff’s request for costs due to his
alleged failure to demonstrate the costs’ “connection to the successful aspects
of this case.” (Doc. 85, at 5). The plaintiff requests costs in the amount of
$1,122.31, (Doc. 82-4), plus an additional $2.62 based on post-trial
submissions, totaling $1,124.93. This amount includes expenses for filing with
the court, deposition transcripts, postage, and photocopying. The court agrees
that the total sum should not be awarded. The court will award the plaintiff’s
costs, but will reduce any entries relating to the unemployment compensation
application or school board proceedings and entries that are not welldocumented.
“[P]revailing parties in civil rights cases are generally entitled to recover
any reasonable costs associated with litigating their claims, provided that the
costs are necessary and properly documented.” Petrunich v. Sun Bldg. Sys.,
Inc., 625 F. Supp.2d 199, 211 (M.D. Pa. 2008). “[I]f a district court, within its
discretion, denies or reduces a prevailing party’s award of costs, it must
articulate its reasons for doing so.” Reger v. The Nemours Foundation, Inc.,
599 F.3d 285, 288 (3d Cir. 2010). “The denial of costs to the prevailing party
is typically a penalty for ‘needlessly bringing or prolonging litigation.’” Carroll
v. Clifford Twp., 625 F. App’x 43, 47 (3d Cir. 2015) (nonprecedential). “A
party’s limited success, taken alone, does not justify denial of costs.” Id.
More specifically, “[p]arties prevailing in federal court may recover
taxable costs referenced in [Federal Rule of Civil Procedure] 54(d)(1) and
enumerated in 28 U.S.C. §1920 [,(“Section 1920")].” Petrunich, 625 F. Supp.2d
at 211; see also Reger, 599 F.3d at 288. Rule 54(d) creates a “strong
presumption” that costs should be awarded to the prevailing party. Reger, 599
F.3d at 288. In addition to those items that are reimbursable under Rule
54(d)(1), Rule 54(d)(2) also allows for reimbursement of “related nontaxable
expenses.” These expenses may include “costs for postage, telephone, expert
fees, travel, deposition transcripts, shipping, parking, lodging[,] and food.”
Bowers v. Foto-Wear, Inc., No. 3:CV-03-1137, 2007 WL 4086339, at *5 (M.D.
Pa. Nov. 15, 2007).
As discussed above, the plaintiff is the prevailing party in this case and
he is entitled to all costs that are properly documented. Some of the plaintiff’s
requested costs are standard costs under 28 U.S.C. §1920, including the court
filing fees and the costs of copying. The remaining items are “related
nontaxable expenses.” FED. R. CIV. P. 54(d)(2). Thus, all of the plaintiff’s
requested costs are proper and generally recoverable. Further, any reduction
based on purportedly limited success is not merited, nor is it appropriate as
Inherent in the defendant’s objection is an objection to the form of the
request for costs, which is simply a list totaling the amount of costs on a piece
of paper. (See Doc. 82-4). The court finds that the requests for filing fees, fees
for obtaining copies of depositions, and postage fees are well documented in
Attorney Katsock’s billing. For example, the court filing fee listed in the
document submitted for reimbursement is also listed in an entry dated 6/6/13
in Attorney Katsock’s billing. (Compare Doc. 82-4, with Doc. 82-2, at 2). The
cost submitted for copying, however, is not well documented. Other than a
blanket fee for “Copying” the plaintiff did not provide any other supporting
information to verify the amount requested. Without this supporting information,
the court will not reimburse the requested amount. See Borrell, 2016 WL
4988061, at *47 (awarding only those costs that are well-documented and
supported by bills and/or invoices). Thus, the $237.00 amount listed as a
copying expense will be eliminated from the award.
The court also finds that the plaintiff should not be reimbursed for costs
related to his unemployment compensation application or costs relating to the
school board proceedings. Reviewing Attorney Katsock’s billing up through the
third school board proceedings, Attorney Katsock’s costs totaled $11.15 in
postage. The court is not convinced that these costs related to this litigation.
It is more likely that these costs were incurred due to the administrative
proceedings prior to the litigation. Thus, $11.15 will be eliminated from the
award. In sum, the plaintiff will be awarded a total of $876.78 in welldocumented costs, in addition to $78,590.25 in attorneys’ fees. This brings the
amount of the final award for attorneys’ fees and costs to $79,467.03.
THE PLAINTIFF’S POST-TRIAL DAMAGES AWARD
In addition to attorneys’ fees, the plaintiff seeks a total of $20,245.87 in
back pay, after income tax and medical premium deductions, in addition to
prejudgment interest at a six percent rate compounded quarterly, totaling
$9,210.48.48. (See Doc. 104, at 3). He also seeks $9,640.77 as compensation
for the increased tax burden due to receiving a lump-sum damages award. (Id.
at 4). At the August 22, 2016 hearing, the parties agreed that the total days
used to calculate the back pay should be 116 days at $301.95 per day and that
the ten percent health insurance premium that the plaintiff would have normally
paid had he not been suspended must be deducted. The plaintiff’s most recent
calculations do exclude the following: (1) federal, state, and local income
taxes; (2) FICA taxes; and (3) the ten percent insurance premium. (See id.).
The calculations do not deduct retirement. These deductions were reviewed
and confirmed by an accountant, Mr. Lobash, as indicated by the September
1, 2016 letter submitted to the court. (Id. at 1). To date, the defendant has not
disputed these amounts or submitted contrary numbers for the court’s review.
Thus, it is unclear if the defendant disputes the plaintiff’s revised calculations,
but the court will continue to assume that the defendant does not agree with
the revised amount based on the defendant’s original objection.
The parties, therefore, continue to disagree on the final back pay
amount, the plaintiff’s request for compensation due to a purported increased
tax burden, and the method of calculating prejudgment interest. With regards
to interest, at the August 22, 2016 hearing, the parties agreed on using a six
percent rate, but disagreed as to whether the rate should be simple or
compound. With respect to the negative tax implication, the defendant did not
agree that any amount should be awarded. After careful review, the court finds
that the plaintiff is entitled to back pay in the amount of $20,221.48 after taxes
and deductions, pre-tax, prejudgment interest on the back pay in the amount
of $3,443.61, and that he has not sustained his burden with respect to the
purported tax penalty.
A. The Plaintiff’s Back Pay Award
The purpose of Section 1983 actions “is to deter state actors from using
the badge of their authority to deprive individuals of their federally guaranteed
rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole,
504 U.S. 158, 161 (1992). In light of this purpose, Section 1983 authorizes
both legal and equitable remedies comparable to those warranted in actions
arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.
Squires v. Bonser, 54 F.3d 168, 172 (3d Cir. 1995). Like Title VII, Section 1983
damages should seek to make the plaintiff whole. See id. Back pay is one form
of equitable relief to make a plaintiff whole. Spencer v. Wal-Mart Stores, Inc.,
469 F.3d 311, 315 (3d Cir. 2006). Here, the parties agree that the plaintiff is
entitled to 116 days of back pay at a rate of $301.95 per date. This brings the
gross pay amount to $35,026.20. The parties also agree that $867.80 should
be deducted for the ten percent medical premium that the defendant paid
during the plaintiff’s suspension. This brings the pre-tax back pay amount to
The defendant argues that the plaintiff’s back pay award must be
reduced to account for several deductions, including federal and state taxes,
FICA taxes, and retirement contributions. The defendant asserts that doing so
would restore the plaintiff to the same position he would have been had he not
been suspended from June 7, 2012 through November 16, 2016. The court
agrees in part.
The plaintiff’s recent calculations do not deduct any amount for
retirement, while the defendant’s calculations did originally deduct for
retirement. At the August 22, 2016 hearing, defense counsel stated that the
defendant did not pay retirement contributions, nor did the plaintiff contribute
to his retirement during his suspension. In addition, the plaintiff conceded that
he was credited years of service towards his retirement during the suspension.
Thus, no additional sum was required to be added or to be deducted to make
the plaintiff whole with respect to his retirement. As such, the final back pay
should not take into account retirement and the plaintiff’s revised back pay
calculations are correct in that respect.
State and Local Taxes
An award of back pay for purely economic loss is taxable. See I.R.C.
§61(a) (“[G]ross income means all income from whatever source derived.”);
§104(a)(2) (“[G]ross income does not include . . . (2) the amount of any
damages . . . received . . . on account of personal physical injuries or physical
sickness”) (emphasis added). Further, back pay awards under discrimination
statutes are clearly taxable. See Eshelman v. Agere Systems, Inc., 554 F.3d
426, 441 (3d Cir. 2009). The award is taxable in the year paid. Id. The court
sees no reason why the same logic would not apply to back pay in a Section
Here, the plaintiff appears to concede that income taxes should be
deducted when viewing his most recent calculation of back pay submitted to
the court. (See Doc. 104, at 3). The calculation of taxes provided by the
plaintiff, however, differs from that originally provided by the defendant.
(Compare id., with Doc. 81-1). The defendant has not objected to the most
recent calculation provided by the plaintiff, nor has the defendant submitted
alternative calculations. The court will look to the defendant’s original prehearing calculation as compared to the plaintiff’s most recent back pay
The court finds the plaintiff’s calculations to be the most accurate with
respect to income tax deductions. The plaintiff submitted a letter from Mr.
Lobash, managing partner at a tax firm, verifying the applicable deduction
percentages. When comparing the percentages provided in the plaintiff’s
calculation with those in the defendant’s original calculations, they are nearly
identical. Thus, in addition to the verification from Mr. Lobash, the defendant’s
own calculations appear to confirm the accuracy of the plaintiff’s income tax
calculations. Accordingly, the gross back pay should be reduced to account for
federal, state, and local income taxes to be withheld by the defendant
according to the percentages provided in the plaintiff’s recent back pay
calculation. (See Doc. 104, at 3).
The only deductions not included in the plaintiff’s recent calculation, as
compared to the defendant’s original calculations, include the employee
contribution of Pennsylvania’s unemployment compensation tax (“U/C Tax”)
and Pennsylvania’s local services tax (“LST Tax”) and occupational privilege
tax (“OPT tax”). The U/C tax is .07 percent and should be deducted.7 The court
will disregard the LST/OPT tax as it requires the calculation of information not
provided to this court and amounts to mere dollars. Deduction of the U/C tax
results in a further reduction of the gross back pay award in the amount of
$24.52. Accordingly, the final award for back pay amounts to $20,221.48.
Back Pay Calculation
Gross Back Pay ($301.95 * 116 days) . . . . . . . . . . . . . . . . . . . . . . . $35,026.20
Reduction (Federal income tax - 28%)
Reduction (FICA - 7.65%)
Soc. Sec. Emp. Contribution - 6.2%
Medicare Emp. Contribution - 1.45%
Reduction (State income tax - 3.07%)
Reduction (Local income tax - 1%)
Reduction (U/C tax - .07%)
Reduction (Med. Ins. Premium)
Total Deductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ($14,804.72)
TOTAL BACK PAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $20,221.48
Next, the plaintiff seeks prejudgment interest on his back pay award.
Ultimately, an award of prejudgment interest is discretionary. Booker v. Taylor
Milk Co., Inc., 64 F.3d 860, 867 (3d Cir. 1995); Ellis v. Ethicon, Inc., No. 05-
See Calculating Contributions, Penalties and Interest, Pa. Dep’t of
Labor, http://www.uc.pa.gov (follow “Employer/UC Services/UC Tax”
tab/hyperlink; then follow “Employee Withholding” hyperlink; then follow
“Calculating Contributions, Penalties & Interest” hyperlink).
726 (FLW), 2009 WL 10641983, *20 (D.N.J. Nov. 13, 2009). “The award of
prejudgment interest is compensatory in nature; it serves to compensate a
plaintiff for the loss of the use of money that the plaintiff otherwise would have
earned had he not been unjustly discharged.” Booker, 64 F.3d 860, 868 (3d
Cir. 1995) (discussing prejudgment interest in a Title VII action). Prejudgment
interest is also equitable in nature and will not be denied unless the award
would result in “unusual inequities.” Id.
Prejudgment interest is only appropriate when applied to an award of
past economic harm, which would include back pay. Poleto v. Consol. Rail
Corp., 826 F.2d 1270, 1277–78 (3d Cir. 1987), abrogated on other grounds by
Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990); Lohman
v. Borough, No. 3:05-CV-1423, 2008 WL 2697309, at *2 (M.D. Pa. July 1,
2008). Generally, there is a strong presumption in favor of awarding
prejudgment interest. Booker, 64 F.3d at 868. “A district court may exercise its
discretion to depart from this presumption only when it provides a justification
that reasonably supports the departure.” Id. Here, there is no reason to depart
from the presumption that back pay should be awarded.
At the core of the parties dispute is what method should be used to
calculate the prejudgment interest. The parties agreed on the rate of six per
cent, which is the Pennsylvania legal rate of interest. See 41 PA. CONST. STAT.
ANN. §202. They disagreed as to whether this interest rate should calculated
on a simple or compound basis. The parties’ reliance on the six percent rate
is based on the assumption that Pennsylvania law governs. This assumption
is incorrect. “[T]he availability of interest in an action arising under a federal
statute is governed by federal law, not the law of the forum state.” Savarese
v. Agriss, 883 F.2d 1194, 1207 (3d Cir. 1989) (quoting Poleto, 826 F.2d at
1274); see also Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965). This is also in
conformity with Section 1988 which provides that the court should exercise and
enforce Section 1983 actions “in conformity with the laws of the United States,”
and only if there are no applicable laws should the court turn to state law. 42
U.S.C. §1988(a); see also Tearpock-Martini v. Borough of Shickshinny, 756
F.3d 232, 238 (3d Cir. 2014). There is no federal statute explicitly governing
an award of prejudgment interest, but there are federal statutes and case law
that provide this court with alternative guidance.
Different courts have used different methods under federal law to
determine the applicable prejudgment rate and method. See Lohman, 2008
WL 2697309, at *3 (concluding that the Internal Revenue Service’s (“IRS”)
overpayment rates located in 26 U.S.C. §6621(a)(1) should be used to
determine prejudgment interest rate in a Section 1983 case); O’Neill v. Sears,
Roebuck & Co., 108 F. Supp.2d 443, 445 (E.D. Pa. 2000) (collecting cases
and concluding that the postjudgment statute, 28 U.S.C. §1961(a), should be
used to determine prejudgment interest in an employment discrimination case);
Taylor v. Cent. Pa. Drug & Alcohol Servs. Corp., 890 F. Supp. 360, (M.D. Pa.
1995) (collecting cases and concluding that 26 U.S.C. §6621(a)(1) should be
used to calculate prejudgment interest in an employment discrimination case).
The Third Circuit Court of Appeals has previously approved both the use of the
IRS market rate and the use of the postjudgment statute. See Taxman v. Bd.
of Educ. of Twp. of Piscataway, 91 F.3d 1547, 1566 (3d Cir. 1996) (affirming
usage of the postjudgment interest statute to calculate prejudgment interest);
Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 63 (3d Cir. 1986)
(affirming usage of the market rate in 28 U.S.C. §6621 to calculate
prejudgment interest). In conformity with courts within this particular district, the
court finds that prejudgment interest should be determined according to the
IRS overpayment rates set forth in Title 26, Section 6621 of the United States
Code. The overpayment rate of Section 6621 remained steady at a three
percent rate from January 1, 2012 through March 31, 2016, but rose to four
percent for the April 1, 2016 to June 30, 2016 quarter. See Rev. Rul. 16-06,
2016-14 I.R.B. 519. The court will use these interest rates in its calculation of
As is true with the interest rate, there is no clear uniformity on the issue
of compound versus simple interest when calculating the prejudgment interest
amount. Some courts using Section 6621 as the basis for prejudgment interest
have calculated simple interest. See, e.g., Supinski, 2012 WL 2905458, at *4.
Others have calculated annual compound interest. See, e.g., Frazier v.
Southeastern Trans. Auth., 814 F. Supp. 11, 14 (E.D. Pa. 1993). Others have
calculated quarterly compound interest. See, e.g., E.E.O.C. v. Reads, Inc., 759
F. Supp. 1150, 1162 n. 20 (E.D. Pa. 1991). The IRS uses a daily compounded
rate for calculating Section 6621 overpayments and underpayments.See I.R.C.
The plaintiff seeks prejudgment interest compounded quarterly. The
court agrees that compounding interest is better able to make the plaintiff
whole with respect to his back pay as it takes into account the lost time value
of money. See Mars, Inc. v. Coin Acceptors, Inc., 513 F. Supp.2d 128, 137
(D.N.J. 2007) (explaining the justification for compounding interest under
Section 1961 in patent infringement cases as a need to include within the
damages the lost use of money over time—its time value). However, the court
finds the better method to be interest compounded annually, not quarterly. This
strikes some balance between taking no account of the time value of money
and penalizing the defendant for the length of a case, which will often take
several years to resolve.
Next, the court must determine the length of time, or the start and end
date, of calculating the interest. The plaintiff wishes to start the interest
calculation on the full amount of back pay from the date of the suspension,
June 7, 2012. The court will begin calculating prejudgment interest on January
23, 2013, the end date of the suspension and the date on which the full
amount of back pay accrued. Compare with Frazier, 814 F. Supp. at 14. Some
convenience must be made for the court’s calculation, given that the parties
have failed to provide accurate calculations of their own. See Gelof v.
Papineau, 829 F.2d 452, 456 (3d Cir. 1987). Interest will end on April 16, 2016,
the date of the judgment.
The court cannot begin calculating prejudgment interest on the
suspension as the plaintiff requests because doing this would add interest to
daily amounts of back pay that had not accrued. This amount is then
compounded prematurely, resulting in additional sums awarded to the plaintiff
that would not be justified. Said another way, if the defendant did not owe the
plaintiff the full amount of back pay on June 7, 2012, it would be error to
assume that amount should be charged interest starting on that day. Further
complicating the matter, there is a gap in the days between June 7, 2012 and
January 23, 2013 (the end of the suspension) where the plaintiff was not owed
any daily sum. Thus, the calculation is not as simple as adding the daily rate
and charging interest from June 7, 2012 to January 23, 2013 and continuing
the calculation from there. For the sake of simplicity, the court will begin
calculating interest on January 23, 2013, the end date of the suspension and
the date on which the full amount of back pay accrued.
Lastly, the court will calculate the prejudgment interest on the gross
amount of back pay minus the medical premium due to the defendant.
Calculating the prejudgment interest on the gross amount minus the premium
due will do a better job of making the plaintiff whole, since the taxes on the
back pay are not actually due until receipt of the money, not accrual of the
money. As explained previously, the prejudgment interest will be taxable as
income. I.R.C. §61(a)(4); Francisco v. United States, 267 F.3d 303, 315–16
(3d Cir. 2001). Unlike the back pay, however, the plaintiff will be responsible
for reporting this sum, not the defendant.8 The gross amount of the back pay
Interest on back pay awards is not deemed to be wages. Rev. Rul. 80364, 1980-2 C.B. 294.
minus the medical premium amounts to $34,158.40. Calculating interest from
January 23, 2013 to April 16, 2016 using the overpayment rates provided by
Section 6621(a)(1), compounded annually, amounts to $3,443.61 in pre-tax
Prejudgment Interest Calculation
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,443.61
Totaling 69 days including end date.
Interest Calculation: .57% (.0057 rounded) = 3% (.03) divided by 366
days ( 2016 leap year) multiplied by 69 days. See Treas. Reg. §301.6622-1(a)
(1983) (providing the method of computing daily interest).
Totaling 16 days including end date.
Interest Calculation: .17% (.0017 rounded) = 4% (.04) divided by 366
days ( 2016 leap year) multiplied by 16 days. See §301.6622-1(a).
B. Negative Tax Implication
As a final matter, the plaintiff argues that he will be subject to a ten
percent increased tax burden resulting from a lump sum back pay award.
Relying on Eshelman v. Agere Systems, Inc., 554 F.3d 426, 441 (3d Cir.
2009), the plaintiff argues that he is entitled to an additional monetary award
to "offset" this negative tax consequence. Currently, he requests a total of
$9,640.77 as compensation for the increased tax burden. The defendant
opposes any offset to the plaintiff for alleged negative tax consequences,
arguing that the plaintiff has not cited any authority allowing the plaintiff to
receive his award as a lump sum award.10 The court finds that the plaintiff
would normally be entitled to reimbursement for any negative tax implications
but that he has not sustained his burden with respect to the amount requested.
In Eshelman, the Third Circuit held that a district court may grant a
prevailing employee an additional sum of money to compensate for the
This argument is without merit. Once a plaintiff obtains a monetary
judgment, the full amount is owed to him or her and the defendant has failed
to show that the opposite is true in this circuit. The plaintiff need not cite case
law for the proposition that a defendant owes the full amount on a judgment
once one is obtained. A defendant may agree with the plaintiff on the
methods, means, or timing of satisfying the judgment, but the defendant has
failed to show that the plaintiff is somehow required to seek satisfaction of the
judgment using a piecemeal approach because of the plaintiff’s status as an
employee or former employee.
increased tax burden resulting from a lump sum back pay award. 554 F.3d at
441. The Third Circuit likened an award offsetting negative tax consequences
to an award of prejudgment interest on back pay, stating that both represent
“a recognition that the harm to a prevailing employee's pecuniary interest may
be broader in scope than just a loss of back pay.” Id. at 442. Thus, “either or
both types of equitable relief may be necessary to achieve complete
restoration of the prevailing employee's economic status quo.” Id.; see also
Marcus, 458 F. App'x at 214. “Accordingly, district courts, ‘should grant
[additional tax] relief in light of the circumstances peculiar to the case.’” Ellis,
2009 WL 10641983, at *20 (quoting Eshelman, 554 F.3d at 443).
Although the plaintiff may be entitled to an additional amount of money
to offset the negative consequences of a lump sum back pay award, the
plaintiff must demonstrate the amount of money he is entitled to. There is no
presumption in favor of an adjustment for negative tax consequences.
Eshelman, 554 F.3d at 443. The prevailing employee bears the burden of
demonstrating their entitlement to such an award. Ellis, 2009 WL 10641983,
at *20. Accordingly, the court may deny an award compensating for an
increased tax burden where the plaintiff has not submitted sufficient evidence
of the negative tax implication and the amount is speculative. E.g., Supinski,
2012 WL 2905458, at *6.
Here, the plaintiff’s original request for an award due to an increased tax
burden, (Doc. 80, at 2), was calculated by the plaintiff himself, as he explained
at the August 22, 2016 hearing. After the hearing, the court advised the plaintiff
that he needed to submit more than his own personal calculations to obtain an
award. On September 2, 2016, the plaintiff submitted a letter from Mr. Lubash
who is a managing partner of a tax firm. (Doc. 104, at 2). Mr. Lubash’s letter
indicated that he reviewed the plaintiff’s calculations and confirmed that those
calculations were correct. However, Mr. Lobash also indicated that any
changes to the “base data” provided to him would alter the tax paid for the
year. Mr. Lobash did not indicate in his letter what base tax was provided to
him in reaching his opinion and the court can only assume that the base data
included the calculations submitted with the letter itself. (See id. at 3–4).
Like the plaintiff’s original request, the data provided to Mr. Lobash
appears to be a simple calculation computed by the plaintiff himself and/or his
counsel. This is not sufficient and Mr. Lobash’s subsequent approval of the
calculation is not sufficient to verify the final amount of the tax implication. As
an initial matter, some of the data is incorrect. The prejudgment and
postjudgment interest included for purposes of the projected tax amount is
calculated using a six percent rate, compounded quarterly. As explained
above, the prejudgment interest is calculated according to the overpayment
rates set forth in Section 6621. The postjudgment rates are set forth in Title
28, Section 1961 of the United States Code—the postjudgment interest
statute. See also Schlier, 2009 WL 5182164, at *3. Thus, the plaintiff’s
calculations are wrong with respect to prejudgment and postjudgment interest.
In addition, the taxes due are calculated using the 2016 projected tax rate. It
is now 2017. Thus, the tax brackets provided in the 2016 table are now
inapplicable due to inflation.
In addition to incorrect data, the plaintiff did not provide verification of the
“[p]rior to award” income used in his calculation. (See Doc. 104, at 4). The
plaintiff’s calculation lists the amount at $85,600 without any supporting W-2's
or other income verification forms, nor was there any indication in Mr. Lobash’s
letter that he reviewed the plaintiff’s income documentation. There is also no
indication of what, if any, tax deductions the plaintiff might take when filing his
returns. In light of this, the court finds that the plaintiff’s pre-award projected tax
rate is speculative.
Adding to this, the plaintiff’s calculation does not appear to deduct for any
tax benefits received in the years of his suspension. These benefits must be
taken into account. Presumably, if the plaintiff’s suspension resulted in lower
income during the time of the suspension, he would pay less tax during those
years. The plaintiff’s calculations do not account for any such benefit. If the
court awards the requested amount without considering the presumed benefits
obtained during the years of the suspension the award will go beyond bringing
the plaintiff to the status quo and do more than make him whole. This result
would be inappropriate.
Mr. Lobash’s letter is also not a sufficient rubber stamp on the plaintiff’s
calculations as it lacks any detail and appears speculative in stating that “any
changes before the end of the tax year, [sic] to the base data can alter the
actual tax paid for the year.” (Id. at 2). Mr. Lobash’s letter is far from the
affidavit of the economic expert provided by the plaintiff in Eshelman, an expert
who calculated the amount of tax-effect damages based upon the back pay
award, the applicable tax rates, and reviewed the plaintiff’s income tax returns
for the relevant time period. 554 F.3d at 442. Mr. Lobash’s letter does not
indicate that Mr. Lobash personally calculated the tax effect of the award and,
instead, simply relies on numbers provided in a calculation submitted to him.
As such, Mr. Lobash’s letter does not save the plaintiff from the defects in his
calculation. The plaintiff was warned at the hearing that he needed to provide
sufficient support to sustain a negative tax implication award. Having failed to
do so, his request for an additional sum to compensate him for an increased
tax burden is denied.
For the foregoing reasons, the plaintiff’s motion for attorneys’ fees and
costs, (Doc. 82), as supplemented by the plaintiff’s letter requests, (Docs. 105,
106, 107, 108), is GRANTED IN PART. The plaintiff will be awarded attorneys’
fees in the amount of $78,590.25, with $11,625.00 awarded to compensate
Attorney Katsock’s work in the Section 1983 litigation and $66,965.25 awarded
to compensate Attorney Katsock’s work in the Section 1983 litigation. The
plaintiff will be awarded costs in the amount $876.78 for all well-supported
expenses submitted to the court that related to the litigation.
Further, after review of the parties submissions regarding damages,
(Docs. 80, 81, 104), the plaintiff will be awarded back pay in the after-tax
amount of $20,221.48. The plaintiff will also be awarded $3,443.61 for pre-tax,
prejudgment interest on the back pay award. Any subsequent, postjudgment
interest will be calculated according to Title 28, Section 1961 of the United
States Code. The plaintiff has not sustained his burden with respect to a
negative tax implication award and no such sum will be awarded. A separate
order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: January 20, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2013 MEMORANDA\13-1519-05.wpd
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