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JOHNSON v. UNITED STATES

January 11, 1984

GAYFRYD McNABB JOHNSON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: POLLACK

MILTON POLLACK, District Judge

MEMORANDUM

 Plaintiff has moved for an order awarding her counsel fees, costs, and expenses incurred in the litigation of this action for review of a jeopardy tax assessment, in accordance with the terms of this Court's Opinion and Order entered on October 28, 1983. Plaintiff requests that such award be granted in the amount of $154,506.56.

 In making this motion, plaintiff relies on the following statement contained in the concluding section of the October 28, 1983 Opinion and Order:

 Costs and expenses of plaintiff, as well as counsel fees to date, are awarded to plaintiff as the proper measure of the relief to which she is entitled on the vacation of the jeopardy assessment and for the government's conduct in derogation of the Court's order of September 27, 1983. 26 U.S.C. § 7430. Those will be fixed on application to the Court on notice to the defendant.

 Id. at 13-14.

 The defendant United States raises three objections to the requested award. First, defendant asserts that the motion be denied in its entirety because plaintiff has failed to adequately document the costs and expenses allegedly incurred. Second, defendant contends that the award must not exceed $25,000, the maximum recovery of litigation costs authorized under 26 U.S.C. § 7430, the statute governing awards of costs in civil actions challenging the reasonableness of jeopardy tax assessments. Third, defendant asserts that in any event plaintiff's application must be substantially reduced to account for "non-compensable tasks and overstaffing".

 Adequacy of Documentation

 In New York State Association for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983), the Second Circuit made clear that "any attorney . . . who applies for court-ordered compensation in this Circuit for work done after the date of this opinion must document the application with contemporaneous time records." Id. at 1148. Such records "should specify, for each attorney, the date, the hours expended, and the nature of the work done." Id. at 1148.

 The documentation supplied by plaintiff to support the amount of the request fails to meet the letter of this contemporaneous time record requirement.

 Plaintiff's documentation consists of the following: (1) an affidavit by Philippe M. Salomon of the law firm of Willkie, Farr & Gallagher which sets forth twelve categories of work performed by nine attorneys and five paralegals employed by WF&G, the total amount of time spent by each of these persons on the case and the firm's customary billing rate for such time, and a schedule of the firms related costs and expenses incurred in the action; (2) a daily summary of services rendered by WF&G which does not state how much time was spent on any particular activity and does not always state which attorney or employee did the work; and (3) an affidavit by William H. Cook, Jr., of the New Orleans law firm of Sessions, Fishman, Rosenson, Boisfontaine & Nathon ("SFRB&N") which sets forth examples of the sorts of work performed for plaintiff in connection with this action by four attorneys and two legal assistants of that firm, along with the total amount of time spent and the corresponding billing totals for each attorney and employee.

 This documentation is not fully adequate because it fails to state who did many of the tasks and how much time was spent on any particular task. Without a more specific and detailed record of how plaintiffs' thirteen attorneys spent their time, "it is hard to weigh claims of overstaffing and duplication." New York State Association for Retarded Children, supra, 711 F.2d at 1147.

 Statutory Cap on Damages

 Defendant asserts that any award for attorney's fees be limited by the $25,000 ...


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