13-001492 Dr. Alberto T. Fernandez, Henny Cristobol, And Patricia E. Ramirez vs. Miami-Dade County School Board Status: Closed Recommended Order on Tuesday, July 28, 2015.

Summary: Petitioners are entitled to attorney's fees pursuant to section 1002.33(4), Fla. Stat., totaling $233,087.50; Petitioners' counsel should be reimbursed for costs in the amount of $17,926.01. No adjustment to the lodestar is warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ALBERTO T. FERNAND E Z, HENN Y

CRISTOBOL, AND PATRICIA E.

RAMIREZ,

Petitioner s , Case No. 13 - 1492

vs.

MIAMI - DADE COUNTY SCHOOL BOARD ,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge Edward T. Bauer held a final

hearing in this cause on March 4, 2015 , by video teleconference

between sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioners: Robin Gibson, Esquire

Amy U. Tully, Esquire

Gibson Law Firm

299 East Stuart Avenue

Lake Wales, Florida 33853

For Respondent: Luis M. Garcia, Esquire

Miami - Dade County School Board

14 50 Northeast Second Avenue, Suite 430

Miami, Florida 33132

STATEMENT OF THE ISSUE

The amount of reasonable costs and a ttorney's fees to be

awarded Petitioners pursuant to section 1002.33(4)(b)4., Florida

Statutes.

PRELIMINARY STATEMENT

In or a round May 2012, Petiti oners Alberto Fernandez, Henn y

Cristobol , and Patricia Ramirez, each a lon gstanding employee of

the Miami - Dade School Board, filed complaints with the Florida

Department of Education ("DOE") pursuant to section 1002.33(4),

Florida Sta tutes. Distilled to their essence, the complaints

alleged that Respondent Miami - Dade Count y School Board ( "MDCPS")

retaliated against Petitioners because of their involvement in

the attempted conversion of Neva King Cooper Educational Center

to a public c harter school.

DOE investigated Petitioners' complaints and, on

November 16, 2012, issued a "Final Investigative Report, " the

findings of whic h were unfavorable to MDCPS . F ollowing an

unsuccessful attempt to conciliate the complaints, DOE's then -

commissi oner notified the parties by written c orrespondence

dated April 12, 2 0 1 3, that the investigation had been

terminated; that, with respect to each Petitioner, DOE had

concluded that reasonable grounds existed to believe that an

unlawful reprisal had occurred ; and that the complaints would be

referred to the Division of Administrative Hearings ("D OAH").

Thereafter, on April 23, 2013, DOE forwarded Petitioners'

complaints to DOAH for further proceedings. After a protracted

discovery period, Petitioners' comp laints proceeded to a final

hearing, which was held on January 27 through 31, 2014 , in

Miami, Florida, and on February 14, 2014, by video

teleconference between sites in Tallahassee, Lakeland, and

Miami.

In a Recommended Order filed June 30, 2014, the unde rsigned

concluded that MDCPS had violated section 1002.33(4)(a) by

tra nsferring Petitioners from Neva King Cooper Educational

Center to alternative job sites, where they were required t o

perform menial tasks wholly incompatible with their positions,

educat ion, and training. Inasmuch , however, as Respondent had

already restored Petitioners to comparable job assignments

during the pendency of the litigation, th e recommended relief

was narrow : an award of $10,590.00 to Petitioner Fernandez,

whose involuntary transfer re sulted in the loss of several

bonuses . The undersigned recommended the denial of Petitioners'

remaining requests for compensation.

By Final Order dated November 6, 2014, DOE rejected the

parti es' exceptions, adopted the Recommended O rder in its

entirety , and remanded the matter to the undersigned "solely for

the purpose of a fact finding determination, supported by

contemporaneous time records and evidence as to the appropriate

hourly r ate, to be followed by a recommendation as to the amou nt

of reasonable costs, including attorney's fees, to the

Petitioners." 1 / In accordance therewith , the undersigned

r eopened DOAH Case No. 13 - 1492 by order dated November 18, 2014.

On December 15 , 2014 , Petitioners' lead counsel, Robin M.

Gibson, filed an Affidavit as to Attorney Fees and Costs

("Affidavit") . As amended on December 18, 2014 , Mr. Gibson's

Affidavit alleges that he personally expended 891.17 hours in

his representation of Petitioners; that his as sociate attorney,

Ms. Amy Tully, expended 403 .46 hours in connection with the

litigation; and that his paralegal expended 36.8 hours.

Significantly, the affidavit further alleges that, accou nting

for the loadstar factors ÏÏ which include a consideration of the

rate customarily charged in the locality Ï Ï the "following hourly

rates for attorneys and paralegal have been established as" 2 / :

$325.00 per hour for Mr. Gibson; $165.00 per hour for Ms. Tully

in connection with work performed from March 18, 2013, through

September 30, 2013, and $200.00 per hour f or all work performed

thereafter; and $75.00 per hour for paralegal work performed

from April 24, 2012, through September 30, 2013, and $85.00 per

hour for all subsequent work. Advocating for a contingency risk

m ultiplier of 2.0, Mr. Gibson's A ffidavit re quests an award of

attorney's fees totaling $773,482.16. Finally, the affidavit

seeks an award of costs in the amount of $25,376.29.

A final hearing on the issue of attorney's fees and costs

was held on M arch 4, 2015, during which Petitioners testified on

their own behalf; presented the testimony of Mr. Gibson and

Robert Josefsberg; and introduced the Affidavit as to Attorney

Fees and Costs ("Affidavit") , attached to which are six

exhibits, labeled A through F . MDCPS presented the testimony of

one witne ss, James Crosl and, and introduced one exhibit.

The transcript of the final hearing was filed with DOAH on

May 26, 2015. At the parties' request, the undersigned extended

the deadline for the submission of proposed recommended orders

to June 15, 2015. B oth parties timely submitted proposed

recommended orders, which the undersigned has considered in the

preparation of this Recommended Order.

Unless otherwise indicated, all references to the Florida

Statutes are to the 2014 codification.

FINDING S OF FACT

I. Background

1 . As noted previously, t his case finds its genesis in

Petitioners' well intentioned ÏÏ but ultimately ill - fated ÏÏ attempt

to convert Neva King Cooper Educational Center ( "Neva King , " a

school operated by MDCPS ) to a public charter school . The

possibility of converting Neva King to a public charter school

first occurred to Petitioners Fernandez and Cristobol during the

waning months of 2011. At that time, and in their capacity as

Neva King's administrators, Fernandez and Cristobol contac ted

Robin Gibson, a longstanding member of the Florida Bar who had

participated in the successful conversion of s everal schools in

Polk County , the location of Mr. Gibson's law practice.

2 . Impressed with Mr. Gibson's knowledge of the statutory

provisio ns relating to school conversion, Fernandez and

Cristobol retained him to assist in the preparation of a

conversion application. Their arrangement was straightforward:

Mr. Gibson would receive an initial retainer of $1,000.00,

against which his services would be billed at the rate of $200

per hour.

3 . MDCPS quickly squelched the conversion efforts and,

beginning in late April of 2012, reassigned all three

Petitioners to undesirable work locations. At or around that

time , Petitioners elected to file comp laints against MDCPS

pursuant to section 1002.33(4)(a ), Florida Statutes, which

prohibits school districts from retaliating against empl oyees

because of their involvement with an application to establish a

charter school . Notably , d espite the striking par alle ls between

section 1002.33(4)(a) and the Florida Civil Rights Act ÏÏ which

prohibits, among other things, unlawful acts of workplace

retaliation ÏÏ Pe titioners proceeded to retain Mr. Gibson without

contacting any other prospective attorney s , let alone att orney s

with background s in employment litigation or administrative

practice .

4 . As for the terms of the representation, Petitioners and

Mr. Gibson agreed that if they succeeded , Mr. Gibson would be

entitled to reasonable attorney's fees and costs purs uant to

section 1002.33(4)(b)4. Implicit in this arrangement was the

understanding that no fee would be paid if Petitioners did not

prevail.

5 . Over the course of the next several years, Petitioners'

complaints navigated their way through the DOE invest igative

p rocess, a five and one - half day administrative hearing , and

final proceedings before DOE. Mr. Gibson, who was assisted

during the li tigation by Ms. Tully , a 2007 graduate of the

University of Florida College of Law, now seeks a sizeable award

of attorney's fees ($773,482.16, after the application of a 2.0

contingency multiplier) and costs. In gauging the propriety of

this request, the undersigned begins with a determination of

number of hours reasonably expended by Mr. Gibson and his staff,

follo wed by an assessment of the reasonable hourly rate for

those services.

II. Hours Expended

6 . As noted previously, Mr. Gibson avers in his affidavit

that, during the period of April 24, 2012, through December 3,

2014, he personally expended 891.17 h ours in connection with the

underlying litigation ; that Ms. Tully, his associate, expended

403.46 hours; and that his paralegal expended 36.8 hours.

7 . During the final hearing in this cause, Mr. Gibson

testified that, in his opinion, the foregoing to tals are

reasonable in light of the factors enumerated in Rule of

Professional Conduct 4 - 1.5(b). On cross - examination, however,

Mr. Gibson acknowledged th at the billing records contain a

number of entries that are either duplicative or otherwise

patently invalid. By way of example, consider the following

entries dated January 27 and 28, 2014 , wherein identical

activities are recorded twice :

0 1/27/14 Travel to the site of the

administrative hearing, participate in all -

day hearing, travel back to hotel, t elephone

call to Amy Tully to inform her about the

need for a legal memorandum having to do

with the standard of causation for the

ultimate question to be decided by the

Court; prepare for next day's testimony.

-- RG fees, 14 @ $325.00 = 4,500.00

0 1/28 / 14 Travel to the site of the

administrative hearing, participate in all -

day hearing, travel back to hotel, telephone

call to Amy Tully to inform her about the

need for a legal memorandum having to do

with the standard of causation for the

ultimate questi on to be decided by the

Court; prepare for next day's testimony.

-- RG fees, 14 @ $325.00 = 4,500.00

8 . Also illustrative are entries dated July 10, 2012, and

January 23, 2014, which record 30 hours and 14 hours,

respectively, in connection with work ostensi bly performed at

home " at night" ÏÏ error s that, once brought to Mr. Gibson's

attention, quickly resulted in conceded reductions 3 / totaling 39

hours :

0 7/10/12 Home at night: review abuse of

process legal research, exhibits from

previous drafts, and fact reports from

[Fernandez] and [Cristobol]; dictate

complete redraft of complete now entitled

Second Amended Complaint.

-- RG fees, 30 @ $325.00 = 9,750.00

0 1/23/14 Home at night , work with the

trial documents to arrange them in

sequential order s o that we can assemble the

notebooks for the Court and opposing counsel

tomorrow, place documents within

approximately 32 different tabs.

-- RG fees, 14 @ $325.00 = 4,550.00

9 . Because of these and other patent irregularities,

Mr. Gibson ultimately co nceded to deletions or modifications to

his billing entries totaling 64.2 hours. 4 / Mr. Gibson further

acknowledged that the total hours of Ms. Tully 5 / and the

paralegal 6 / should be adjusted downward by 1.2 and 12 hou rs,

respectively . In addition, the und ersigned's independent review

of the billing records has uncovered duplicative entries dated

November 1, 2013, both of which record 8.2 hours of work by

Mr . Gibson , 7 / as well as an erroneous entry of Ms. Tully's , for

2.6 hours , 8 / dated August 4, 2014. Ap plying each of the

foregoing reductions to the number of hours originally pleaded

yields the following adjusted totals :

Robin Gi bson: 818.77 hours (891.17 Î 72.4 )

Amy Tully: 399.56 hours (403.36 Î 3.8 )

Paralegal: 24.8 hours (36.8 Î 12.0)

10 . This does not end the matter, for MDCPS contends that

further reductions are warranted because the billing records

in clude activities that were unnecessary, unrecoverable , 9 / or

inefficiently performed. MDCPS further asserts that Mr. Gibson

and Ms . Tu lly's use of block billing ÏÏ the disfavo red practice of

including multiple tasks within a single billing entry 10 / ÏÏ makes

it difficult, if not impossible , to assess the reasonableness of

the adjusted tot als on an hour - by - hour basis. Indeed, a s to the

latter point, the billing records contain hundreds of block

entries substantially similar to the following:

9/3/13 Conference with MM and RG re:

moving forward after the depositions, who

further to depose, interrogatories and

motions to produce that need to be served.

Conference call with Nicholas Sirmon re:

status of the ethics case with DOE. Began

drafting Petitioners second request to

produce / email to client for Gordillo's

contact information / westlaw research on

statute vs. policy / began drafting

inte rrogatori es. Phone call with HC re:

potential witnesses. Reviewed email from

HC . Conference call with AF, HC, and RG re:

strategy of further depos / and witnesses.

-- AT Fees, 5.2 @ $165.00 = 858.00

12/11/13 Telephone call from Henny

Cristobol conce rning yesterday's testimony,

my request for all copies of memoranda from

Judith Marte, chief financial officer for

Miami - Dade District, concerning her

itemizations which turn out to be in

conflict with Stacy McCrady's budget, Henny

promised to review his d ocuments with Albert

and send me the documents I requested,

conference with Amy Tully with a request for

her to draft a proposed affidavit for Albert

Fernandez's signature concerning the

circumstances surrounding the invitation for

the visitor on the Neva King Cooper school

grounds, receive Amy's draft of the motion

for summary judgment, review and edit,

dictate changes to Mary; receive Amy's

proposed draft of the Fernandez affidavit,

spend most of the rest of the afternoon

revising and editing the motion f or summary

judgment along with the Fernandez affidavit,

and editing and placing into form the

exhibits that will be attached to the motion

for summary judgment, place the documents in

final form so Mary can give them to Amy

tomorrow for review.

-- RG fee s, 5.7 @ $325.00 = 1,852.50

11 . Even viewing the billing records through the most

charitable lens, block entries account for at least 5 21 . 5 of

Mr. Gibson 's adjusted t otal hours of 818.7 7 (63.7 percent), and

at least 246 of Ms. Tully's ad justed tot al hours of 399.56 (61 .5

percent). 11 / Due to the pervasiveness of the block entries, some

of which include activities that are plainly unrecoverable, the

undersigned is foreclosed from performing a reasonableness

assessment on an hour - by - hour basis . As an alternative

approach , the undersigned shall apply an across - the - board

percentage cut of 25 percent to the adjusted total hours of

Mr. Gibson, Ms. Tully, and the paralegal . S uch a redu ction

yields the following totals, which reflect the amount of labor

r easonably expended on the litigation:

Robin Gibs on: 614.08 hours

Amy Tully: 299.67 hours

Pa ralegal: 18.6 0 hours

II I . Reasonable Hourly Rate s

12 . As noted previously, Mr. Gibson alleges in his

Affidavit that, after accounting for the factors enu merated in

rule 4 - 1.5(b), his hourly rate " ha[s] been established" as $325

per hour. Mr. Gibson further avers that Ms. Tully's appropriate

hourly rate is $165.00 for work performed through September 3 0,

2013, and $200.00 per hour thereafter. As for the p aralegal,

Mr. Gibson alleges an hourly rate of $75 for services performed

on or before September 30, 2013, and $85 for work completed

subsequent to that date.

13 . During the final hearing , Petitioners presented the

testimony of Robert Josefsberg, a pers onal friend of Mr. Gibson

who has practiced law in Miami - Dade County for the past 53

years . A lthough his practice has been devoted primarily to

commercial litigation, Mr. Josefsberg spent a portion of his

early career as an assistant Miami - Dade School Boa rd attorney .

Since that time , the School Board has retained Mr. Josefsberg in

connection with one litigation matter and three investigations.

14 . As to the question of the reasonable hourly rate s,

Mr. Josefsberg opined that Mr. Gibson 's services shoul d be

valued at the rate of $700 to $1000 per hour , a range that

vastly exceeds the hourly rate pleaded in Mr. Gibson's affidavit

and articulated in the parties' Joint Prehearing Stipulation .

Mr. Josefsberg further testified, again in sharp contrast to the

figures pleaded in the Affidavit and included in the Joint

Stipulation , that Ms. Tully's labor should be compensated at a

rate between $3 50 and $450 per hour. Finally, Mr. Josefsberg

opined that the paralegal's services should be valued at the

rate of $1 00 to $175 per hour.

15 . For its part, MDCPS presented the testimony of James

Crosland, a shareholder with the Miami office of Bryant Miller

Olive , who exclusively represents public sector clients in

connection with labor and employment disputes. A me mber of the

Florida Bar since 1974, Mr. Crosland is certified as an expert

in the field of labor and employment law.

16 . Characterizing Mr. Josefsberg's prodigious f ee ranges

as "unrealistic , " Mr. Crosland credibly and persuasively opined

that Mr. Gibs on's and Ms. Tully's servic es should be valued at

$200 to $250 per hour. Mr. Crosland further testified, again

credibly, that regardless of whether an attorney has "been

practicing 50 years or five , " the going rate in Miami - Dade

County in the field of emp loyer relations and labor law conforms

to the $200 to $250 rang e. 12 /

17 . In its Proposed Recommended Order, MDCPS suggests,

quite reasonably, that the services of Mr. Gibson, Ms. Tully,

and the paralegal be compensated at the rate of $250 per hour. 13 /

Fin ding this suggestion well taken, the hourly rate of $250

yields a lodestar amount of $233,087 .50:

Robin Gibson: 614.08 hours

Amy Tully: 299.67 hours

Paralegal: _ 18.6 0 hours

Lodestar: 932.35 hours * $250 = $233,087.50

18 . MDCPS further contends, though , that the lodestar

amount must be adjusted downward in recognition of the fact that

t wo of the Petitioners, Cristobol and Ramirez, obtained no

financial recovery through the litigation . Petitioners assert,

on the other hand, that the contingent na ture of the l itigation

justifies the application of a risk multiplier ranging from 1.75

to 2.0. However, for the reasons discussed shortly, the

undersigned concludes that neither adjustment is warranted and

that the loadstar amount of $233,087.50 should r emain

undisturbed.

IV . Reasonable Costs

19 . With respect to the issue of costs, Mr. Gibson

requests an award totaling $25,376.29. MDCPS correctly po ints

out, however , that this request includes a number of costs that

are considered overhead and, thus, are not properly taxable :

expenses relating to legal research, travel , long distance

calls, photocopies , and postage and expedited courier services.

The remaining costs, which the undersigned finds are properly

taxed against MDCPS, are as follows:

11/19 /13 $1,310.70 Phipps Reporting

12/20/13 $844.90 Fornell and Goldman

12/31/13 $1,195 .75 Fernandez and Cristobol

01/08/14 $1,380.00 U.S. Legal Support

01/08/ 14 $9.23 Kitchen Check Reimbursement

0 1/31/14 $159.73 Action Signs

0 1/31/14 $2,392.30 M cCrady Depositions

01/ 31/14 $592.5 0 Marte/Ramirez Depositions

02/01/14 $592.5 0 Marte/Ramirez Depositions

02/28/14 $325.00 Service

03/07/14 $309.00 U.S. Legal Support

03/07/14 $1,725.00 Expert Witness Fee

04/03/14 $5,169.40 Transcript

06/2 6/14 $195.00 Rodriguez, Ramirez, Massa

12/10/14 $1,725.00 Balance of Expert Fee

Total: $ 17,926.01

CONCLUSIONS OF LAW

I. Jurisdiction

20 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceedin g. §§ 120.569, 120.57(1), and 1002.33(4)(b)4., Fla.

Stat.

II. Burden and Standard of Proof

21 . As the parties asserting the affirmative of the issue,

Petitioners have the burden of proof in this proceeding. Dep't

of Transp. v. J.W.C., Inc. , 396 So. 2 d 778, 788 (Fla. 1st DCA

1981). The reaso nableness of the fees and costs sought must be

established by a preponderance of the evidence. § 120.57(1)(j),

Fla. Stat.

III. Reasonable Attorney's Fees

22 . As noted previously, Petitioners are entitled to an

award of reasonable attorney's fees and costs pursuant to

section 1002.33(4)(b), which provides, in relevant part:

(b) In any action brought under this

section for which it is determined

reasonable grounds exist to believe that an

unlawful reprisal has o ccurred . . . the

relief shall include the following:

* * *

4. Payment of reasonable costs, including

attorney's fees, to a substantially

prevailing employee, or to the prevailing

employer if the employee filed a frivolous

action in bad faith.

23 . I n assessing the reasonable ness of a fee request,

Florida courts apply the "lodestar" method to obtain an

objective estimate of the value of the services rendered. Bell

v. U.S.B. Acquisition Co. , 734 So. 2d 403, 406 - 07 (Fla. 1999).

Pursuant t o that framew ork, the undersigned must "determine the

number of hours reasonably expended by the attorney and a

reasonable hourly rate of those services, then multiply the two

to arrive at the 'lodestar' amount." Id. at 406. In making

this calculation, it is necessar y to uti lize the criteria

enumerated in rule 4 - 1.5(b), which include, inter alia, the

novelty, complexity, and difficulty of the questions involved,

as well as the experience, reputation, diligence, and ability of

the lawyers performing the service. Id. a t 406 - 07. Finally,

Bell instructs that o nce the lodestar is calculated, it may be

appropriate to "add or subtract from the fee based upon a

'contingency risk' factor and the 'results obtained .'" Id. at

407 ( quoting Florida Patient's Compensation Fund v. Rowe , 472

So. 2d 1145 , 1151 (Fla. 1985)).

A. Hours Reasonably Expended

24 . Against this backdrop, the undersigned begin s with the

most contentious issue between the parties, namely, the number

of hours reasonably expended on the litigation. In most cases,

such a dispute is resolved by utilizing the relevant criteria

set forth in r ule 4 - 1.5(b) to evaluate the reasonableness of the

amount of time devoted to each discrete task. However, as

discussed previously, Mr. Gibson and Ms. Tully's pervasive use

of block billing renders such an approach impossible. See Moore

v. Kelso - Moore , 152 So. 3d 681, 682 (Fla. 4th DCA 2014)(noting

that the use of block billing made it impossible to determine

the reasonableness of the hours expended as to certain matters ).

25 . Although Florida courts have yet to address the

qu estion, Federal decisional authority generally holds that

where the use of block billing precludes an hour - by - hour

analysis, it is appropriate instead to apply an across the board

percentage c ut to the total number of hours claimed. Dial HD,

In c. v. Clearone Com mc'ns , Inc. , 536 Fed. Appx. 927, 931 (11th

Cir. 2013)(holding lower court "reasonably applied a 25% across -

the - board reduction to the fees charged . . . based on its

conclusion that the f irm used block billing, making it difficult

to ascertain how muc h time was spent on each task") ; Role Models

Am., Inc. v. Brownlee , 353 F.3d 962, 971 - 73 (D.C. Cir. 2004)

( applying a fifty percent reduction where the time records

suffered from multiple de ficienc ies, including block billing).

26 . Before proceeding further, the undersigned notes that

while the billing records in question contain some non - block

entries, such fact does not invite both a percentage cut to the

hours included within block entr ies and an hour - by - hour analysis

of the non - block entries . As the Eleventh Circuit has

persuasively explained:

[I]n arriving at the lodestar, the court

conducted both an hour - by - hour analysis and

applied an across - the - board reduction of the

requested comp ensable hours. Our circuit's

precedent states that the district court is

to apply either method, not both. The

reason for this is easy to understand: by

requiring the district court to conduct

either analysis instead of both, we ensure

that the district court does not doubly -

discount the requested hours, as was the

case here.

Bivins v. Wrap It Up, Inc. , 548 F.3d 1348, 1351 - 52 (11th Cir.

2008)(emphasis in original).

27 . Pur suant to the authority cited above , an across - the -

board percentage reductio n to the adjusted total hours is

warranted due to the pervasive use of block billing, as well as

the presence of unrecoverable tasks (e.g., hours relating to

travel and speaking with the media) within some of the block

entries. Although MDCPS requests a c ut of at least 30 per cent,

it is concluded that a reduction of 25 percent to the adjusted

hours yields totals ÏÏ 614.08 ( Mr. Gibson), 2 99.67 ( Ms. Tully),

and 18 .6 0 (paralegal) ÏÏ that are reasonable in light of the

protracted nature of the litigation, the volu me of discovery,

the length of the final he aring, and the obvious fact that the

service s advanced the interests of three Petitioners. The

undersigned turns next to the question of the reasonable hourly

rates.

B. Reasonable Hourly Rate s

28 . As dis cussed previously, Mr. Gibson alleged in his fee

Affidavit that, accounting for the relevant lodestar factors,

his hourly rate should be established at $325 .00 ; that the rate

of Ms. Tully should be set at $165.00 for work performed through

September 30, 20 13, and $200.00 for all work performed

thereafter; and that the rate of the paralegal should be

established at $75.00 for tasks performed through September 30,

2013, and $85.00 per hour for all subsequent work.

29 . At the conclusion of the final hearing , however,

Mr. Gibson announced that he was no longer seeking the foregoing

rates but, rather, was requesting hourly fees within the ranges

articulated by his expert , i.e., $700 to $100 0 for himself, $350

to $450 for Ms. Tully, and $100 to $175 for the pa ralegal.

Needless to say, t his change in course came as a surprise to

both the undersigned and counsel for MDCPS , particularly since

the parties' Joint Stipulation , which was filed just days before

the final hearing and signed by both counsel of record,

d escribed the "issues of fact" as follows:

G. Issues of Fact Which Remain to Be

Litigated:

Whether, based on the facts to be adduced at

the hearing, Petitioner's counsel's

requested hourly rate of $325.00 for

himself, $200 per hour for Ms. Amy Tully and

$ 85 per hour for their paralegal are

reasonable hourly rates .

Whether, based on the facts to be adduced at

the hearing, Petitioner's counsel' s request

for recovery of over 1,000 hours in

attorney's fees is reasonable in light of

the facts of this case.

(emphasis added).

30 . Owing perhaps to the undersigned's open skepticism of

Mr. Gibson's eleventh hour announcement , Petitioners' Proposed

Recommended Order suggests "compromise" hourly rates of $577.50

for Mr. Gibson and $288.75 for Ms. Tully. This i nvitation is

decline d for several reasons, the first being that the

compromise rates exceed the values included in the Joint

Stipulation . See Schrimsher v. Sch. Bd. of Palm Beach C nty. ,

694 So. 2d 856, 863 (Fla. 4th DCA 1997)("The hearing officer is

bound by the parties' stipulations") . Further, and in any

event, the compromise rates are derived in part from the hourly

ranges articulated by Petitioners' expert , which the undersigned

rejects in favor of the $200 to $250 range testified to by

MDCPS' expert, Mr. Crosland .

31 . With the aim of putting this issue to rest , MDCPS

commendably proposes the use of a "blanket rate" of $250 per

hour for the services rendered by Mr. Gibson, Ms. Tully, and the

paralegal. The application of a $250 blanket rate, which t he

undersigned concludes is both reasonable and appropriate under

the circums tances, results in a lodestar of $233,087.50 .

C. Potential Adjustments

32 . Finally, it is necessary to examine the parties'

respective arguments concerning potential adjustmen ts to the

lodestar. Specifically, MDCPS asserts that a downward

adjustment is necessary because only one of the Petitioners

obtained any financial recovery through the litigation.

Petitioners contend , meanwhile, that the contingent nature of

Mr. Gibso n's fee arrangement warrants the application of a

multiplier ranging from 1.75 to 2.0. The undersigned concludes,

however, that no adjustments are warranted.

33 . Beginning wit h MDCPS' request , it is true that a

reduction to the lodestar is required in cases where the

prevailing party achieves only limited success. Eckhardt v. 424

Hintze Mgmt., LLC , 969 So. 2d 1219, 1222 (Fla. 1st DCA 2007) .

MDCPS fails to acknowledge, however, that the underlying

litigation advanced an imp ortant public interest: exp osing the

unlawful acts of reprisal stemming from Petitioners' efforts to

convert Neva K ing to a public charter school , a form of

educational institution that, pursuant to legislative mandate,

"shall be part of the state's program of public education."

§ 1002.33(1), Fla. Stat. This is significant, for it is well

settled that where important publi c interests are vindicated,

recovery "cannot be valued solely in monetary terms." Riverside

v. Rivera , 477 U.S. 561, 574 (1986). Rather, the relative

importanc e of a money damage award:

[M]ust be determined on a case - by - case

basis. For example, monetary damages will

be wholly immaterial when a plaintiff seeks

purely equitable relief. On the other hand,

where compensatory damages constitute the

primary relief s ought and become the only

relief obtained, a court is not beyond its

discretion in considering the damages

awarded as a relevant factor. In any event,

a court remains obligated to account for all

distinct measures of success when

determining whether succe ss was limited.

Villano v. City of Boynton Beach , 254 F.3d 1302, 1307 - 08 (11th

Cir. 2001)(internal citations omitted).

34 . Applying these standards to the facts at hand , the

undersigned concludes that the failure of Petitioners Ramirez

and Cristobol to obtain monetary damages is not dispositive .

First , the record makes pellucid that the overriding objective

of the earlier proceeding was not to recover economic damages

but, rather, to obtain a final order that vindicated

Petitioners' contention that t hey were the vi ctims of unl awful

reprisal ; Petitioners' success in that endeavor will no doubt

deter MDCPS from repeating such behavior in the future . In

addition , the absence of a monetary re covery is plainly of less

import where , as here, the agen cy wit h final order authority

lacked jurisdiction to award a full array of damages. See

Broward Cnty. v. La Rosa , 505 So. 2d 422, 423 - 24 (Fla. 1987)

( explaining general principle that administrative agencies have

no authority to award common law money damages f or noneconomic

injuries ). Finally, adopting MDCPS' approach would require a

downward adjustment in any case where a school board commits an

act of reprisal that , regardless of its severity , does not

directly result in quantifiable financial consequences t o the

educator. For these reasons, MDCPS' request for a reduction to

the lodestar is rejected.

3 5 . As for Petitioners' request for a n upward adjustment ,

the Florida S upreme Court has held that the factors to be

applied in determining if a multiplier i s appropriate turn upon

the category of case at issue: public policy enforcement cases

(category I); tort and contract claims (category II); or family

law, eminent domain, and estate and trust matters (category

III) . Standard Guaranty Ins. Co. v. Quanstr om , 555 So. 2d 828 ,

832 - 35 (Fla. 1990). Specifically, the court in Quanstrom held

that application of a multiplier in category I cases is

"severely restricted," and that "no enhancement for risk is

appropriate unless the applicant can establish that witho ut an

adjustment for risk the prevailing party would have faced

substantial difficulties in finding counsel in the local or

other relevant market." Id. at 832 (internal citations

omitted); Lane v. Head , 566 So. 2d 508, 513 (Fla. 1990)(Overton,

J., concurr ing). Although the standards in category II cases

are not as restrictive, the party seekin g a multiplier must

nevertheless demonstrate, inter alia, that securing counsel in

the relevant market would have been difficult in the absence of

risk enhancement. Sun Bank of Ocala v. Ford , 564 So. 2d 1078,

1079 (Fla. 1990)(upholding denial of multiplier in category II

contract case where evidence failed to establish that appellant

would have had dif ficulty finding representation); USAA Cas.

Ins. Co. v. Prime Care Chiropractic Ctrs., P.A. , 93 So. 3d 345 ,

347 (Fla. 2d DCA 2012)( "If there is no evidence that the

relevant market required a contingency fee multiplier to obtain

competent counsel, then a multiplier should not be awarded . ").

36 . It is of no moment w hether t he instant matter falls

within category I or II, for the record is devoid of evidence

that, without risk enhancement, Petitioners would have faced any

difficulties, much less substantial difficulties, finding

counsel in Miami - Dade County. 14 / Althou gh Petitioners offered

testimony that they could not afford Mr. Gibson's hourly rate,

such evidence does not prove that they would have faced

difficulties in attracting counsel to their case absent the

prospect of an enhanced fee . This is particularly tru e in light

of the compelling nature of Petitioners' cases ÏÏ i. e.,

longstanding employees with impeccable disciplinary and

performance records who, upon participating in the attempted

conversion of Neva King, were promptly transferred to demeaning

work assig nments ÏÏ which would have been readily apparent to any

competent practitioner. As such, Petitioners' request for a

multiplier is rejected.

37 . Allocating the lodestar of $233,087.50 among the three

Petitioners in accordance with parties' stipulated prop ortions ,

the final attorney's fees are as follows:

Fernandez: $233,087.50 * 42% = $97,896.75

Cristobol: $233,087.50 * 38% = $88,573.25

Ramirez: $233,087.50 * 20% = $46,617.50

IV. Reasonable Costs

38 . Turning final ly to the question of costs, MDCPS

correctly argues that Mr. Gibson's request of $25,376.29

includes a number of charges that are not properly taxable. See

Landmark Winter Pa r k, LLC v. Colman , 24 S o. 3d 787 , 789 (Fla.

5th DCA 2009) (holding trial court improperly taxed various

overhead cost s, which included "postage, online research,

facsimile charges, courier services, photocopies, scanning

documents and trial supplies"); Mitchell v. Osceola Farms Co. ,

574 So. 2d 1162 , 1163 (Fla. 4th DCA 1991)(" As listed, the

p hotocopy, postage, long distan ce calls, travel expenses and

courier service appear to be office expenses and should not have

been taxed as costs . "). With such nontaxable expenses removed,

Mr. Gibson is entitled to reimbursement for costs totaling

$17,926.01. 15 /

CONCLUSION

For the r easons elucidated above, it is RECOMMENDED that

the Florida Department of Education enter a final order

awarding: attorney's fees totaling $97,896.75, $88.573.25, and

$46,617.50 to Petitioners Alberto Fernandez, Henny Cristobol,

and Patricia Ramirez, resp ectively; and costs in the amount of

$17,926.01 to Petitioners' counsel.

DONE AND ENTERED this 28 th day of July, 2015, in

Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Ad ministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta te. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28 th day of July , 20 1 5 .

ENDNOTE S

1 / Neither party took an appeal of the final order.

2 / Gibson Affidavit, pp. 4 - 5.

3 / Hr'g Tr., pp. 12 9 - 32; 146 - 48.

4 / Hr'g Tr., pp. 131 - 32; 140 - 41; 143 - 50.

5 / Hr'g Tr., pp. 132 - 34.

6 / Hr'g Tr., pp. 124; 140 - 41.

7 / Gibson Affidavit, p. D - 60.

8 / Ms. Tully's August 4, 2014, entry of 2.6 hours, which reads

"Began drafting exceptions t o the recommended order ," is plainly

erroneous. Specifically, the record reflects that the

undersigned's recommended order was filed on June 30, 2014, and

that the parties' exceptions to that Order were filed on or

before July 15, 2014, some 19 days prior to the August 4 entry.

9 / Such unrecoverable activities include travel and spe aking

with members of the media . Dish Network Serv. L.L.C. v. Myers ,

87 So. 3d 72, 78 (Fla. 2d DCA 2012) ("In Florida, the

longstanding rule is that an award of attorney s' fees should not

include travel time without proof that a competent local

attorney could not be obtained . ") (internal quotation marks

omitted) ; Yule v. Jones , 766 F. Supp . 2d 1333, 1348 (N.D. Ga.

2010) (denying compensation for hours relating to media

inte rviews and responses to information requests, where such

activities were not for "legal services required to prosecute

the claims asserted in the action"); Gray v. Romeo , 709 F. Supp.

325, 327 (D.R.I. 1989)(holding hours relating to media

interviews were n ot properly chargeable to opposing party;

"Defendants should not be expected to compensate the Plaintiff

for the cost of generating publicity").

10 / See Kearn e y v. Auto - Owners Ins. Co. , 713 F. Supp. 2d 1369,

1377 - 78 (M.D. Fla. 2010)(defining block bi lling as the practice

of including "multiple tasks in a single time entry"); Wise v.

Kelly , 620 F. Supp. 2d 435, 450 (S.D.N.Y. 2008)("Block billing

is the practice of aggregating multiple tasks into one billing

entry . ")(internal quotation marks omitted); B obrow Palumbo

Sales, Inc. v. Broan - Nutone, LLC , 549 F. Supp. 2d 274, 283

(E.D.N.Y. 2008)( "A reduction is also warranted where counsel

engages in 'block billing,' such that multiple tasks are

aggregated into one billing entry . "); Jones v. Eagle - North Hills

Shopping Ctr. , L.P., 478 F. Supp. 2d 1321, 1328 (E.D. Okla.

2007)("Many of the time entries . . . contain multiple tasks

under each time entry, which is often re ferred to as 'block

billing.'") .

11 / Petitioners' counsel utilized a "b lock billing " format w ith

respect to the following entries (each entry is designated by

the attorney's initials, followed by the number of hours billed

and the page number in Exhibit D in which the entry appears):

RG 3.8 ( D - 1 ) ; RG 3.2 ( D - 1 ) ; RG 1.2 ( D - 1 ) ; RG 1.6 ( D - 1 ) ; RG 2.8

( D - 2 ) ; RG 3.2 ( D - 3 ) ; RG 2.3 ( D - 3 ) ; RG 1.5 (D - 3); RG 2.8 (D - 3);

RG 2.7 (D - 3); RG 1.4 (D - 4); R G .8 (D - 4 ; entry that begins,

"Telephone call to Henny and Albert") ; RG 3.0 (D - 4); RG 1.6 (D -

5); RG 1.8 (D - 5); RG 1.7 (D - 5); RG 2.8 (D - 6); RG 1.3 (D - 6); RG

2.8 (D - 7 ); RG 1.3 (D - 8); RG 4.3 (D - 9); RG 4.7 (D - 9); RG 5 .0 (D -

9); RG 1.4 (D - 10); RG 1.7 (D - 10); RG 3.0 (D - 10; entry was

adjusted from 30.0 to 3.0 by stipulation of the parties ); RG 2.0

(D - 11); RG 5.2 (D - 11); RG 1.4 (D - 12); RG 1.3 (D - 12); RG 1.9 (D -

12); RG 1.0 (D - 13); RG 1.8 (D - 13); RG .7 (D - 13 ; entry that

begins, "Email to Ms. Graziadei" ); RG 3.3 (D - 14); RG 1.4 (D - 14);

RG .5 (D - 14); RG 2.4 (D - 15); RG 1.0 (D - 15); RG 2.2 (D - 16); RG

1.4 (D - 19); RG 2.0 (D - 19); RG .6 (D - 19); RG 1.2 (D - 20); RG 1.8

(D - 21); RG 1.4 (D - 21); RG 1.9 (D - 22); RG 1.2 (D - 22); RG .9 (D -

24); RG 1.6 (D - 24); RG 5.3 (D - 25); RG 4.8 (D - 25); RG 1.0 (D - 26);

RG 1.7 (D - 26); RG .4 (D - 27); RG 1.3 (D - 27); RG 3.5 (D - 29); RG .7

& .7 (D - 29); RG 1.2 (D - 29) ; RG 2.3 (D - 31); RG 1.0 (D - 32); RG 1.2

(D - 34 ; entry that beg ins, "Richard Shine returned my telephone

call" ); RG 1.0 (D - 34); RG 1.1 (D - 35); RG 5.8 (D - 35); AT 2.0 (D -

35); RG 2.6 (D - 36); AT 1.5 & 1.5 (D - 37); AT 2.5 (D - 37); AT 5.7

(D - 37); AT 3.3 (D - 37); AT 4.5 (D - 38); RG 3.2 (D - 38); AT 1.5 (D -

39); AT 4.4 (D - 39); AT 4. 5 (D - 39 ); AT 2.5 (D - 39 ; entry that

begins, "Reviewed draft petition with edits" ) ; AT 2.7 (D - 40) ; AT

1.2 (D - 40) ; AT 3.0 (D - 40); RG .4 (D - 41); AT .7 (D - 41); AT 1.9

(D - 41); AT 1.0 (D - 41); AT 1.3 (D - 42); RG 1.7 (D - 42); RG 1.4 (D -

43); AT 1.5 (D - 43); AT 3.1 (D - 4 3); RG .6 (D - 43); AT 1.2 (D - 44);

AT 4.5 & 4.5 (D - 44); AT 4.7 (D - 45); AT 2.8 (D - 45); AT 4.0 & 4.0

(D - 45); AT 3.0 (D - 45; entry that includes phrase, "TC with

client"); RG .9 (D - 45); RG 1.2 (D - 46); AT 1.0 (D - 46); AT 1.0 (D -

4 7); RG 1.2 (D - 47); AT 2.0 (D - 48 ; en try that begins, "Call to

clients" ); AT 1.5 (D - 48; entry that begins, "Finished drafting

request to produce"); AT 1.6 (D - 48); AT 4.0 (D - 49); RG 3.3 (D -

49); AT 3.5 (D - 49); RG 2.0 (D - 4 9 ); RG 6.7 (D - 50); AT 3.8 (D - 51);

RG 1.2 (D - 51); RG 1.4 (D - 51); RG .8 (D - 5 1); AT 5.0 (D - 5 1); RG

5.0 (D - 52); RG 5.0 (D - 52); RG 4.4 (D - 52) ; RG 4.9 (D - 52); AT 5.2

(D - 53); RG 1.5 (D - 53); AT 3.4 (D - 53); AT 1.3 (D - 54); AT 2.5 (D -

54); RG 1.0 (D - 54); AT 1.2 (D - 54); AT 4.2 (D - 54); AT 1.5 (D - 54);

RG 1.2 (D - 55); RG .9 (D - 57); RG 2.8 (D - 57) ; RG 2.8 (D - 58 ); RG

2.2 (D - 58); RG 5.0 (D - 59); RG 3.4 (D - 59); RG 5.5 (D - 60); RG 1.2

(D - 60); RG 1.1 (D - 60); RG 3.5 (D - 61); RG 2.3 (D - 61); RG 1.1 (D -

62); RG .5 (D - 62); RG 7.1 (D - 63); RG 6.5 (D - 63); RG 13.0 (D - 63);

AT 2.5 (D - 64); AT 3.3 (D - 65); RG 1.0 (D - 65); AT 2.5 (D - 65); AT

2.0 (D - 65); RG 5.5 (D - 66); RG 5.2 (D - 66); AT 4.0 (D - 66); RG 3.5

(D - 67); RG 8.2 (D - 67); AT 1.7 (D - 68); RG 5.7 (D - 68); AT 3.0 (D -

68); RG 3.4 (D - 68); RG 1.2 (D - 69); RG 5.2 (D - 69); AT 4.3 (D - 69);

RG 5.6 (D - 70); AT 3.5 (D - 70); RG 6.0 (D - 70); RG 3.2 (D - 71); AT

2.3 (D - 71); RG 8.1 (D - 71); AT 2.0 (D - 72); RG .8 (D - 72); AT 2.0

(D - 73); RG 1.0 (D - 73); AT 1.5 (D - 74); RG 2.2 (D - 74); AT 4.5 (D -

74); RG 2.7 & 2.7 (D - 75); AT 2.7 (D - 75); AT 1.6 (D - 76); RG 1.2

(D - 76); AT 1.9 (D - 76); RG 6.0 (D - 76); RG 1.5 (D - 7 7); RG 6.4 (D -

77); RG 1.1 (D - 77); AT 4.0 (D - 78); RG 3.6 (D - 78); AT 5.0 (D - 78);

AT 3.5 (D - 79); RG 6.0 (D - 79); RG 6.7 (D - 79); RG 14.0 (D - 79); RG

12.0 (D - 79); AT 2.7 (D - 79); RG 14.0 (D - 80); RG 12.5 (D - 80); RG

12.0 (D - 80); AT 3.7 (D - 82); AT 2.9 (D - 82); RG 2.8 (D - 82); AT 2.3

(D - 83); RG 7.8 (D - 83); RG 4.7 (D - 83); RG 3.7 (D - 84); RG 2.5 (D -

84); RG 6.5 (D - 84); AT 2.5 (D - 84); AT 3.8 (D - 86); AT 2.0 (D - 86);

RG 1.0 (D - 86); RG 1.7 (D - 87); RG 1.8 (D - 87); AT 3.0 (D - 87); RG

2.0 (D - 88); AT 1.0 (D - 88); RG 6.7 (D - 89); AT 3.3 ( D - 89); AT 2.5

& 2.5 (D - 89); RG 4.7 (D - 91); AT 4.5 (D - 92); AT 3.0 (D - 92 ; entry

that reads, "Read transcripts and edited proposed recommended

order" ); AT 2.9 (D - 92); RG 3.0 (D - 93); RG 3.0 (D - 9 4); RG 1.8 (D -

94); RG 1.5 (D - 94); AT 3.1 (D - 95); RG 2.0 (D - 95); RG 1.2 (D - 96);

RG 2.8 (D - 96); RG 3.7 (D - 97); RG 1.4 (D - 97); AT 2.3 (D - 97); AT

2.7 (D - 98); RG 1.3 (D - 98); RG 1.1 (D - 98); RG 5.3 (D - 99); AT 3.0

(D - 99); RG 4.5 (D - 100); RG 4.8 (D - 100); RG 4.5 (D - 101; entry

that begins, "Several drafts of exceptions "); RG 1.8 (D - 101); AT

4.0 (D - 102); RG 2.7 (D - 102); AT 2.0 (D - 102); RG 2.3 (D - 102); AT

3.0 (D - 102; entry that begins, "Discussion with RG re: potential

civil action"); AT 4.5 (D - 103); AT 2.0 (D - 103); RG 1.7 (D - 103);

RG 1.2 (D - 104); RG 1.7 (D - 105); RG 1.5 (D - 107); RG 1. 9 (D - 107);

AT 1.0 (D - 107); RG 1.2 (D - 108); RG 1.3 (D - 108); RG .9 (D - 108).

12 / Hr'g Tr., p. 184.

13 / See Resp't PRO, p. 13.

14 / This conclusion makes it unnecessary to address MDCPS'

contention that a multiplier is never available in proceedings

initiated under section 1002.33(4).

15 / Petitioners' Motion for Witness Fee for Expert Witness,

filed March 10, 2015, is hereby denied. See Orlando Reg'l Med.

Ctr., Inc. v. Chmielewski , 573 So. 2d 876 , 883 (Fla. 5th DCA

1990)("Expert witness fees may be awarded in the trial court's

discretion, in complex cases when the preparation for testifying

is lengthy and burdensome . However, here the attorney witness

said he spent only three hours looking at the file and he made

it a 'cursory r e view.'") .

COPIES FURNISHED:

Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Robin Gibson, Esquire

Amy U. Tully, Esquire

Gibson Law Firm

299 East Stuart Avenue

Lake Wales, Florida 33853

(eServed)

Judy Bone, Esquire

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew H. Mears , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Str eet

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dad e County School Board

1450 Northeast Second Avenue

Miami, Florida 33132 - 1308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.