Hamilton v. The Recorder

7 OCAHO 978 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER November 17, 1997 RUSSELL M. HAMILTON, Complainant, v. THE RECORDER, Respondent. 8 U.S.C. §1324b Proceeding ) OCAHO Case No. 97B00150 ORDER GRANTING RESPONDENT’S REQUEST FOR ATTORNEY’S FEES MARVIN H. MORSE, Administrative Law Judge Appearances: John B. Kotmair, Jr., on behalf of Complainant. Gail A. Goolkasian, Hill & Barlow, P.C., on behalf of Respondent. I. Procedural History Pursuant to the October 6, 1997 Final Decision and Order Granting Respondent’s Motion To Dismiss, 7 OCAHO 968 (1997), The Recorder (Respondent), by its attorney, timely filed its Affidavit in Support of Attorney’s Fees (Application) on October 29, 1997, clar- ified by its addendum letter of November 4, 1997.

The Recorder seeks $2,655 in reimbursement for attorney fees submitted by Gail A. Goolkasian of Hill & Barlow, P.C., $44.85 for Goolkasian’s copy- ing, $16.95 for Goolkasian’s faxing, and $291 for computer-assisted legal research, although Respondent also expended $2,539.50 for the services of three other Hill & Barlow tax attorneys. Hamilton (Complainant) neither contests nor otherwise responds to Respondent’s Application. 925 Respondent requests a total of $3,007.80 in attorney’s fees and costs and provides a detailed explanation and summary in support of its request. Complainant, invited by the October 6, 1997 Final Decision and Order to respond to The Recorder’s request for and cal- culation of attorney’s fees by November 7, 1997, does not question the reasonableness of either the time set forth or the hourly rates claimed in Respondent’s Application.

II. Discussion Just as the disposition of this case on the merits was one of first impression in §1324b tax protestor jurisprudence in the First Circuit, this order addresses fee shifting in such cases for the first time in the First Circuit. A. Test for Awards of Attorney’s Fees Under 8 U.S.C. §1324b Attorney’s fees are awarded in an unfair immigration-related em- ployment practice action based on a two-part test: (1) determination of prevailing party status; and (2) qualification of the action as frivo- lous or unreasonable. 8 U.S.C. §1324b(h) provides in part that an administrative law judge, in the judge’s discretion, may allow a prevailing party, other than the United States, a reasonable attorney’s fee, if the losing party’s argument is without reasonable foundation in law and fact.

1. The Recorder Is the Prevailing Party That The Recorder is the prevailing party is made clear by rele- vant OCAHO and federal case law. “Title VII served as a point of de- parture in drafting what became [8 U.S.C. §1324b]. . . . It is reason- able to conclude, therefore, that Title VII [of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.,] case law with respect to award of at- torneys’ fees is an important springboard for discussion of attorneys’ fees under [§1324b].” Williamson v. Autorama, 1 OCAHO 174, at 1173 (1990), 1990 WL 515872, at *5 (O.C.A.H.O.).1 See also Lee v. 1Citations to OCAHO precedents printed in bound Volumes 1–3, ADMINISTRATIVE DECISIONS UNDER EMPLOYER SANCTIONS AND UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES LAWS OF THE UNITED STATES, reflect consecutive pagination within that bound volume; pinpoint citations to Volumes 1–3 are to specific pages, se- riatim, of the entire volume.

Pinpoint citations to other OCAHO precedents subse- quent to Volumes 1–3, however, are to pages within the original issuances. 926 Airtouch Communications, 7 OCAHO 926, at 2 (1997), 1997 WL 602712, at *12 (O.C.A.H.O.); Banuelos v. Transportation Leasing Co., 1 OCAHO 255, at 1651–52 (1990), 1990 WL 512091, at *10–11 (O.C.A.H.O.). Jasso v. Danbury Hilton & Towers, 3 OCAHO 566 (1993), 1993 WL 544051 (O.C.A.H.O.),2 referencing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), held that an award of attorney’s fees depends on a finding of : (1) respondent’s prevailing party sta- tus, and (2) complainant’s unreasonableness in filing the underlying action. Jasso also relied upon the similarities between the attorney’s fees provisions of IRCA and the Civil Rights Act: Title VII of the Civil Rights Act also illuminates the reasonableness test for fee shifting.

Under Title VII the Supreme Court has held that a District Court may, in its discretion, award attorney’s fees to a prevailing Defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, groundless and without foundation, even though not brought in subjective bad faith. Jasso, , at 6, 1993 WL 544051, at *10–11. The Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983),3 and Texas State Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 793 (1989),4 defined the prevailing party as the one who succeeds or prevails “on a significant issue in the litigation” and achieves “some of the relief they sought. . . . ” In Texas State Teachers, the Court found that “[t]he touchstone of the prevailing party inquiry must be the material alteration of the legal relation- ship of the parties in a manner which Congress sought to promote in the fee statute.” 489 U.S. at 792–93. Parties “who prevailed on a sig- nificant issue in the litigation and . . . obtained some of the relief sought . . . are thus ‘prevailing parties’ within the meaning of [the statute].” Id. at 793. 2Jasso v. Danbury Hilton & Towers, , 1993 WL 544051 (finding re- spondent prevailing party, but denying award of attorney’s fees because complainant was justified in bringing the action). 3Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (discussing fee awards under Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. §1988).

4Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989) (discussing fee awards under 42 U.S.C. §§1983, 1988). 927 Respondent “succeeded” on the second affirmative defense (failure to state a claim upon which relief can be granted) set forth in its Answer when I held that: Hamilton’s action lacks “an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Hamilton’s Complaint, having no arguable basis in fact or law, is frivolous. . . . Where a claim is based upon a party’s dis- charge of statutory duties, it derives from an indisputable meritless legal the- ory. . . . As an employer who complies with statutory obligations, The Recorder is immune from liability under the very statutes conferring duties upon it. . . . Accordingly, I dismiss Hamilton’s Complaint without leave to amend because his tax challenge cannot by any conceivable amendment be transformed into a bona fide immigration-related unfair employment practice in violation of 8 U.S.C. §1324b and because this forum lacks subject matter jurisdiction over employment conditions and tax challenges.

Final Decision and Order Granting Respondent’s Motion To Dismiss, pp. 10–11. The dismissal “afforded [The Recorder] . . . some of the re- lief sought.” The Recorder’s legal relationship with Hamilton was “materially altered” when I dismissed Hamilton’s Complaint for fail- ure to state a cause of action cognizable by §1324b(g)(3) and for lack of subject matter jurisdiction. I find, therefore, that The Recorder meets the prevailing party test of Texas State Teachers, i.e., (1) it prevailed on a significant issue in the litigation by demonstrating that the Complainant failed to state a cause of action, and (2) it ob- tained the relief it sought in its Answer when Hamilton’s Complaint was dismissed.

I conclude that the Respondent is clearly the prevail- ing party. In the context of summary dispositions of complaints, ALJs have not always been of one mind in resolving whether a respondent is a prevailing party. Banuelos, 1 OCAHO 255, at 1650 n.7, 1990 WL 512091, at *10, disagreed with Williamson, 1 OCAHO 174, 1990 WL 515872, with respect to the “view that a respondent is not a ‘prevail- ing party’ simply because [an] ALJ has rendered a decision which dismisses, on jurisdictional grounds, a Complaint as charged by a pro se complainant. . . . [The Banuelos ALJ also] reject[ed] an inter- pretation . . . which would apply attorney fees analyses to ‘all cases,’ including, as [another ALJ] apparently sees it, to threshold dis- missals for lack of jurisdiction against a pro se.”5 5“The defendant has been held to be the prevailing party in cases involving a dis- missal for want of jurisdiction.” 1 ROBERT L. ROSSI, ATTORNEY’S FEES 363 (2d ed. 1995).

928 However, the concerns raised in Banuelos regarding the award of attorney’s fees to the prevailing party in actions dismissed on juris- dictional grounds need not be addressed in the context of the case at hand. This is so because Hamilton did not appear pro se, but was represented by John B. Kotmair (Kotmair) and the National Worker’s Rights Committee (Committee). To the extent that OCAHO rules permit representation by a non-bar member, Hamilton is rep- resented by Kotmair and the Committee. By no means is Hamilton pro se.

Accordingly, I need not address the Banuelos reservation, which would deny prevailing party status to successful respondents whose adversary is truly pro se. Moreover, Hamilton was dismissed with prejudice not only for lack of subject matter jurisdiction, but also for failure to state: (1) a citizenship status discrimination cause of action cognizable under §1324b(a)(1); and (2) an over documentation cause of action cognizable under §1324b(a)(6) and §1324a(b). 2. Hamilton’s Complaint, Without Reasonable Foundation in Law and Fact, Is Frivolous Fee shifting turns on a determination that “the losing party’s ar- gument is without reasonable foundation in law and fact.” 8 U.S.C. §1324b(h).

“Under 8 U.S.C. §1324b(h), the prevailing party obtains the benefit of fee shifting only upon a finding that the arguments of the opposing party were without reasonable foundation in law and fact.” Jasso, , at 1636, 1993 WL 544051, at *2 (citing Jones v. Dewitt Nursing Home, 1 OCAHO 1235, 1268 (1990 . In addition to 8 U.S.C. §1324b(h), Title VII precedent establishes a case to be frivolous if without reasonable foundation in law or fact. “[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis in ei- ther law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Although the text of §1324b(h) differs from that of Title VII, the re- sult is the same.

Christiansburg Garment Co. v. EEOC, supra, addressed fee-shift- ing. In Christiansburg, the Supreme Court applied the prevailing party standard to civil rights defendants, holding that a court “may in its discretion award attorney’s fees to a prevailing defendant in a 929 Title VII case upon a finding that the plaintiff ’s action was frivolous, unreasonable, or without foundation, even though not brought in bad faith.” 434 U.S. at 421. Subsequently, in Hensley v. Eckerhart, supra, the Court explained that “[a] prevailing defendant [in a 42 U.S.C. §1988 civil rights action] may recover an attorney’s fee only where the suit was vexatious, frivolous, or brought to harass or em- barrass the defendant. See H.R. Rep.

No. 94–1558, p. 7 (1976).” 461 U.S. at 429 n.2. Hamilton’s Complaint was summarily dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. “[T]he Christiansburg standard is . . . likely to have been met where the plaintiff’s case is dismissed for failure to state a claim on which relief could be granted. . . . ”6 Hamilton maintains that his employer discriminated against him by refusing to accept self-styled, gratuitously tendered documents, which pur- ported to exempt Hamilton from the universal demands of the Internal Revenue Code and the Social Security Act, the legality of which are undisputed and long-settled.7 The Recorder, however, is statutorily mandated to withhold income taxes8 and social security contributions9 and is immunized from legal liability for withholding by 26 U.S.C. §3102(b),10 26 U.S.C. §3403,11 and the Anti-Injunction Act, 26 U.S.C. §7421(a),12 which has been interpreted to prohibit 61 Court Awarded Attorney Fees (MB) ¶10.04, at 10–77—10–78 (May 1997) (footnote omitted) (emphasis added). See, e.g., Patton v. County of Kings, 857 F.2d 1379 (9th Cir.

1988) (upholding attorney’s fees awarded to prevailing defendant where action dismissed for plaintiff’s failure to state a cause of action and where plaintiff’s action found frivolous); Harbulak v. County of Suffolk, 654 F.2d 194, 197 (2d Cir. 1981) (reversing and remanding for award of attorney’s fees to defendant after finding “no basis whatsoever for a suit against” the defendant and plaintiff’s claim “unreasonable and groundless, if not frivo- lous”); Riviera Carbana v. Cruz, 588 F. Supp. 80 (D.P.R. 1980) (holding that plaintiff failed to allege or state a cause of action and stating that even if plaintiff had stated a cause of ac- tion, “‘federal courts are without power to entertain claims if they are so attenuated and unsubstantial as to be absolutely devoid of merit’ or if they are obviously, as in the instant case, frivolous”) (citation omitted), aff’d, 767 F.2d 905 (1st Cir. 1985) (unpublished decision).

7All employees residing in the United States are subject to withholding taxes and social security (FICA) contributions, which employers must collect “at the source”— i.e., in the workplace, through payroll deductions. 26 U.S.C. §§3101, 3102, 3402(a)(1), 3403. See Helvering v. Davis, 301 U.S. 619, 644 (1937); Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937).

826 U.S.C. §3402(a). 926 U.S.C. §3102(a). 1026 U.S.C. §3102(b) (“Every employer . . . shall be indemnified against the claims and demands of any person. . . . ”). 1126 U.S.C. §3403 (“The employer . . . shall not be liable to any person. . . . ”) 1226 U.S.C. §7421(a) (“[N]o suit for the purpose of restraining the assessment or col- lection of any tax shall be maintained in any court by any person. . . . ”).

930 suits against employers who withhold taxes. See United States v. American Friends Serv. Comm., 419 U.S. 7, 10 (1974). “[T]o take a po- sition which indicates a desire to impede the administration of tax laws is a legally frivolous action.” McKee v. United States, 781 F.2d 1043, 1047 (4th Cir.), cert. denied, 477 U.S. 905 (1986).

Where an employer is statutorily immunized from liability, an ac- tion brought against the employer for the performance of that duty is frivolous per se. “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory. . . . ” Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). “A claim is based upon an indisputably meritless legal theory if the defendants are immune from suit.” Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.

1993) (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989 ; Austin v. Jitney-Jungle Stores of America, Inc., 6 OCAHO 923, at 22 (1997), 1997 WL 235918, at *17 (O.C.A.H.O.) (citing Neitzke, 490 U.S. at 325, cited in Graves, 1 F.3d at 317). Because Respondent, “an employer who in compliance with statutory obligations . . . deducts withholding tax and social security contributions, . . . is statutorily immunized from suit[,]” Hamilton’s action is frivolous and meritless. Austin, 6 OCAHO 923, at 22, 1997 WL 235918, at *17. “In any complaint respecting an unfair immigration-related em- ployment practice, an [ALJ], in the judge’s discretion, may allow a prevailing party. . . a reasonable attorney’s fee, if the losing party’s argument is without reasonable foundation in law and fact.” 8 U.S.C. §1324b(h).

I find that there is “no legal or factual basis for any of [Hamilton’s] allegations,” and award Respondent $3,007.80 in attor- ney’s fees and related expenses. Lee v. Airtouch Communications, 7 OCAHO 926, at 6. Respondent’s prevailing party status and Hamilton’s action against an employer legally immunized from lia- bility satisfy the threshold requirements of the 8 U.S.C. §1324b(h) two-part test for award of attorney’s fees. This result accords, for ex- ample, with Kosatchkow v. Allen-Stevens Corp., 7 OCAHO 966 (1997), Lareau v. U.S. Airways, 7 OCAHO 963 (1997), and Horne v. Town of Hampstead, 7 OCAHO 959 (1997).

B. Reasonableness of Attorney’s Fees Request “Any application for attorney’s fees shall be accompanied by an itemized statement from the attorney or representative, stating the actual time expended and the rate at which fees and other expenses 931 were computed.” 28 C.F.R. §68.52(c)(2)(v). In Hamilton, counsel sup- plies the following figures to support its request: Date Services 9/9/97 9/10/97 Hours Amount 1.3 292.50 Review materials re Complaint; conference with tax attorney Zielinski Tel. conferences w. attorney Miller, client 1.8 OCAHO clerk; review of procedures 405.00 9/22/97 Review cases/papers 1.8 405.00 9/24/97 Telephone conference w. client .1 22.50 9/25/97 9/26/97 Review case and draft Answer, Motion To Dismiss 4.0 900.00 Telephone conferences w. client, OCAHO; 2.8 Letter to OCAHO; review and revise Answer, Motion To Dismiss 630.00 Total Attorney Fees at $225.00 an hour for 11.8 hours: $2,655.00 Disbursement Purpose Copying Fax Computer-assisted legal research Total disbursements: Amount 44.85 16.95 291.00 $352.80 The reasonableness of these amounts must be assessed.13 “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 13The United States Court of Appeals for the First Circuit requires “the lower court to explain its actions [in awarding attorney’s fees]. . . . The explanation need not be painstaking . . . but at a bare minimum, the order awarding fees, read against the backdrop of the record as a whole, must expose the court’s thought process and show the method and manner underlying its decisional calculus.” Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir.

1997). 932 the value of a lawyer’s services.” Hensley, 461 U.S. at 433; Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir. 1997) (“the lodestar method is the strongly preferred method”). This calcu- lation, set forth in Hensley, and adopted by the First Circuit in Coutin, is the “lodestar” amount.

“The courts may then adjust this lodestar calculation by other factors. . . . [I]n Hensley and in subse- quent cases, [the Supreme Court has] adopted the lodestar approach as the centerpiece of attorney’s fee awards.” Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). “The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’” Hensley, 461 U.S. at 434. “The district court also may consider other factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–719 ([5th Cir.] 1974), though it should note that many of these factors usually are subsumed within the initial calculation of hours reason- ably expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434 n.9.

“The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours ex- pended on the litigation.” Blanchard, 489 U.S. at 94. “The amount of the fee, of course, must be determined on the facts of each case. On this issue the House Report simply refers to twelve factors set forth in Johnson. . . . The Senate Report cites to Johnson as well . . . .” Hensley, 461 U.S. at 430.

“A number of circuits, following the lead of the Fifth Circuit in Johnson v. Georgia Highway Express, . . . have announced that their district courts are to consider and make detailed findings with re- gard to twelve factors relevant to the determination of reasonable attorneys’ fees. . . . ” Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir.), cert. denied, 439 U.S. 934 (1978). The First Circuit has adopted the Johnson factors. Coutin, 124 F.3d at 337 n.3. The twelve Johnson factors are: (1) The time and labor required. . . .

(2) The novelty and difficulty of the ques- tions. Cases of first impression generally require more time and effort on the attorney’s part. . . . (3) The skill requisite to perform the legal service prop- erly. . . . (4) The preclusion of other employment by the attorney due to accep- tance of the case. . . .

(5) The customary fee. . . . (6) Whether the fee is fixed or contingent. [But see Blanchard v. Bergeron, 489 U.S. 87 (1989)]. . . . (7) Time limitations imposed by the client or the circumstances. . . . (8) The amount in- volved and the results obtained. . . .

(9) The experience, reputation, and ability 933 of the attorneys. . . . (10) The ‘undesirability’ of the case. . . . (11) The nature and length of the professional relationship with the client. . . . (12) Awards in simi- lar cases.

Johnson, 488 F.2d at 717–19. To award attorney’s fees, a “court must first apply the Johnson factors in initially calculating the reasonable hourly rate and the reasonable number of hours expended by the at- torney; the resulting ‘lodestar’ fee, which is based on the reasonable rate and hours calculation, is presumed to be fully compensatory without producing a windfall.” Trimper v. City of Norfolk, Va., 58 F.3d 68, 73 (4th Cir. 1995) (referencing Daly v. Hill, 790 F.2d 1071, 1078 (4th Cir. 1986 , cert. denied, 116 S. Ct.

535 (1995). Applying the twelve Johnson factors to The Recorder’s request, I find that Respondent’s Application is reasonable: fully successful14 in its defense against this frivolous action, counsel billed Respondent 11.8 hours at $225 an hour for researching, drafting, and finalizing Respondent’s Answer and Motion To Dismiss and for conducting re- lated reviews and telephone calls. Affidavit in Support of Motion for Attorney’s Fees, Exhibit B. Counsel’s rate of $225 an hour is reason- able for an attorney with eight (8) years’ experience in the Boston, MA, market. Gail Goolkasian, the experienced counsel, holds a J.D., cum laude, from Harvard University Law School.

In addition to her Associate’s position at Hill & Barlow, P.C., Goolkasian has served as a Special District Attorney for the Middlesex County District Attorney’s Office in Malden, MA. Goolkasian’s hourly rate is also reasonable in light of recent OCAHO case law in which ALJs awarded attorney’s fees ranging from $75 per hour to $284.75 per hour: Austin v. Jitney Jungle Stores of Am., Inc., 7 OCAHO 969 (1997) (awarding $4,971 in attorney’s fees and related expenses, rates including $175 an hour for a partner with thirty-six (36) years’ experience in the Jackson, MS, market); Kosatchkow v. Allen-Stevens Corp., 7 OCAHO 966 (1997) (awarding $4,474 in attorney’s fees and related expenses at rates ranging from $180 per hour for a partner to $95 an hour for a new associate in the Detroit, MI market); Lareau v. US Airways, Inc., 7 OCAHO 963 (1997) (awarding $5,296.47 in attorney’s fees and related expenses at rates ranging from $284.75 per hour for the work of a Senior Partner with twenty- 14As the First Circuit noted, “the Supreme Court has identified results obtained as a preeminent consideration. . . . If a prevailing party is successful on all . . . of her claims, and receives complete relief, it goes without saying that reasonable fees should be paid for time productively spent, without any discount”). Coutin, 124 F.3d at 338.

934 six (26) years’ experience at a major Washington area law firm to $207 an hour for the services of “Of Counsel”); Horne v. Hampstead, 7 OCAHO 959 (1997) (awarding $630 in attorney’s fees at $150 an hour for work by a partner and an associate in Towson, MD, a sub- urb of Baltimore); Werline v. Public Service Electric & Gas Co., 7 OCAHO 955 (1997) (awarding $512.50 in attorney’s fees at $125 per hour for work by an associate attorney general for respondent in Cedarville, NJ); Jarvis v. AK Steel, 7 OCAHO 952 (1997) (awarding “legal fees” in the amount of $1,833.75 with compensation for attor- neys in Pittsburgh, PA, at rates of $275 per hour and $240 per hour); Lee v. Airtouch, 7 OCAHO 926 (1997) (awarding $7,531.26 for attor- ney’s fees including $15.70 in costs billed for the San Diego, CA, market at rates of $155 per hour for in-house counsel and $216.75 per hour for outside counsel); and Wije v. Barton Springs/Edwards Aquifer Conservation Dist., 5 OCAHO 785 (1995), 1995 WL 626204 (O.C.A.H.O.) (awarding “legal fees” of $51,530.34 in the Austin, TX, market at the rate of $185 per hour for a partner and the rates of $120 per hour and $75 per hour for associate attorneys).15 I find attorney’s fees and expenses of $3,007.80, representing $225 an hour for a seasoned attorney with eight (8) years’ experience, and small related expenses, reasonable in the Boston, MA, market.

III.

Conclusion Complainant is directed to pay to Respondent the amount of $3,007.80 for attorney’s fees and expenses related to defense against Complainant’s frivolous action.

SO ORDERED.

Dated and entered this 17th day of November, 1997.

MARVIN H. MORSE

Administrative Law Judge 15As this is not a fee award under the Equal Access to Justice Act (EAJA), 5 U.S.C. §504, I am not bound by the generally applicable EAJA statutory limit of $125 per hour. 5 U.S.C. §504(b)(1)(A)(ii) (“attorney or agent fees shall not be awarded in excess of $125 per hour. . . . ”). 935