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Boehner v. McDermott

March 31, 2008

JOHN A. BOEHNER, PLAINTIFF,
v.
JAMES A. MCDERMOTT, DEFENDANT.



The opinion of the court was delivered by: Thomas F. Hogan Chief Judge

MEMORANDUM OPINION

Pending before the Court are Congressman John A. Boehner's Revised Motion for Attorneys' Fees, Costs, and Interest (# 95) and Congressman Boehner's Supplemental Motion for Attorneys' Fees, Costs, and Interest (# 103). While the parties agree Congressman Boehner is entitled to attorneys' fees, costs, and interest pursuant to 18 U.S.C. §§ 2511(1)(c), 2520(a) & (b)(3), and this Court's previous opinions and orders, they disagree as to the amount to which Congressman Boehner is entitled.

In total, Congressman Boehner requests an award of $1,115,895.53, before interest ("Total Amount"), which includes: (1) $850,887.53 for litigation of the federal claim*fn1 through June 30, 2007 ("Revised Amount"); (2) $14,153 for work as amicus curiae in Bartnicki v. Vopper, 532 U.S. 514 (2001) ("Amicus Amount"); and (3) $250,855 for work from July 1, 2007, through November 30, 2007, which included briefing an opposition to Congressman McDermott's certiorari petition and litigating the fee issues before this Court ("Supplemental Amount"). Additionally, Congressman Boehner asserts he is entitled to postjudgment interest on the fee amount from October 22, 2004, the date on which this Court held that he was entitled to fees and costs.

For the reasons that follow, the Court will award Congressman Boehner the entire Revised Amount and Amicus Amount, postjudgment interest from the Court's October 22, 2004, order, and 75% of the Supplemental Amount.

BACKGROUND

On August 20, 2004, this Court granted Congressman Boehner summary judgment on his claim that Congressman McDermott's disclosure to reporters of a recorded conversation involving Congressman Boehner and various other Republican Party leaders violated the federal wiretapping statute, 18 U.S.C. § 2511(1)(c). See Boehner v. McDermott, 332 F. Supp. 2d 149, 169 (D.D.C. 2004). Approximately one month later, on October 22, 2004, this Court found Congressman McDermott liable for $10,000 in statutory damages and $50,000 in punitive damages and ordered that Congressman Boehner shall also recover reasonable attorneys' fees and costs.*fn2 Pursuant to the parties' joint motion, the Court ordered the fees issue held in abeyance pending the outcome of the appeal. On May 1, 2007, the D.C. Circuit, sitting en banc, affirmed, albeit on different grounds, this Court's holding that Congressman McDermott violated 18 U.S.C. § 2511(1)(c). See Boehner v. McDermott, 484 F.3d 573 (D.C. Cir. 2007). The Supreme Court subsequently denied Congressman McDermott's petition for certiorari. McDermott v. Boehner, 128 S.Ct. 712 (2007).

DISCUSSION

Insofar as this opinion is concerned, the parties disagree on following issues: (1) whether Congressman Boehner is entitled to the entirety of the Revised Amount in light of Congressman Boehner's lack of success on his argument that the First Amendment does not protect the disclosure of truthful information of public concern by a person who knew or had reason to know that the information was unlawfully obtained by another; (2) whether Congressman Boehner is entitled to attorneys' fees attributable to his participation as amicus curiae in Bartnicki v. Vopper, 532 U.S. 514 (2001); (3) whether the Supplemental Amount is reasonable in light of the tasks performed, i.e., preparing an opposition to a certiorari petition and litigating the fee issues; and (4) whether postjudgment interest should begin to accrue from the Court's October 22, 2004, order concluding that Congressman Boehner is entitled to attorneys' fees or from the date this Court quantifies a fee award.

I. REVISED AMOUNT

While not challenging the reasonableness of the amount of hours expended or the rate requested, Congressman McDermott contends that, because Congressman Boehner failed to prevail on his "core" argument that the First Amendment did not shield Congressman McDermott from liability because he knew or had reason to know that the recording was unlawfully intercepted, Congressman Boehner's success was partial or limited at best and, thus, the Revised Amount is unreasonable. Def. Opp'n 8; Def. Reply 7 ("Simply put, the scope of this litigation would have been narrower, and the amount of fees and costs would have been lower, but for Rep. Boehner's refusal to concede that the First Amendment-and Bartnicki v. Vopper-protect the disclosure of truthful information of public concern by a person who played no role in intercepting the underlying information, even if he knew or had reason to know that it was unlawfully obtained by another."). Countering, Congressman Boehner contends that the fees he incurred on the federal claim were "concededly reasonable" and, because he fully prevailed on that claim, no reduction is even potentially warranted.

In support of his argument, Congressman McDermott chiefly relies on the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983), in which the Court held that, "where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained." Hensley, 461 U.S. at 440. The Court in Hensley, however, did not directly address the situation presented here. Indeed, there the Court was required to determine the "proper standard for setting a fee award where the plaintiff has achieved only limited success," i.e., "where the plaintiff did not succeed on all claims asserted." Hensley, 461 U.S. at 431-32. See also id. at 426 ("The issue in this case is whether a partially prevailing plaintiff may recover an attorney's fee for legal services on unsuccessful claims."); George Hyman Const. Co. v. Brooks, 963 F.2d 1532, 1536 (D.C. Cir. 1992) ("In Hensley v. Eckerhart, the Supreme Court defined the conditions under which a plaintiff who prevails on only some of his claims may recover attorney fees . . . .").

Here, Congressman Boehner succeeded on the only claim for which he seeks fees-his claim that Congressman McDermott violated the federal wiretapping statute by disclosing to reporters the tape recording of an illegally intercepted conversation in which Congressman Boehner participated-and, thus, the Court finds that a reduction under the partial success analysis of Hensley is unwarranted. See American Petroleum Inst. v. EPA, 72 F.3d 907, 911-12 (D.C. Cir. 1996) (holding that because plaintiffs pursued only one claim for relief, i.e., the invalidity of a regulation, "there are not 'separate claims' but only separate arguments in support of the same claim, [and, thus,] Hensley v. Eckerhart has no applicability").*fn3

That Congressman Boehner pursued only one claim for relief raises the somewhat more fundamental issue of whether Congressman Boehner's argument that Congressman McDermott did not lawfully obtain the recording can be seen as a claim or issue raised by Congressman Boehner such that his failure to prevail on the argument is a proper basis to reduce the fees in this matter. Indeed, the "unlawfully obtained" argument arose as a response to Congressman McDermott's affirmative defense that the First Amendment protected his disclosure from liability. And Congressman McDermott cites no case in which a court found reduction of a fee award proper based solely on a prevailing party failing to succeed on a response to an affirmative defense. Rather, in all of the cases Congressman McDermott cites in his opening brief for his argument that Congressman Boehner's fee award should be reduced by some unspecified amount, the plaintiffs were only partially successful, in that they prevailed on only some of their actual legal claims. See Fine v. Ryan Int'l Airlines, 305 F.3d 746, 757 (7th Cir. 2002) (holding reduction proper where plaintiff prevailed on retaliation claim but failed on discrimination and reinstatement claims); Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 771-72 (8th Cir. 2000) (holding reduction proper where plaintiff prevailed on only one of six claims); Jason D.W. by Mr. & Mrs. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 (5th Cir. 1998) (holding reduction proper where plaintiff failed to achieve the "primary objective" of IDEA case "to secure placement at another school"); Raton Gas Transmission Co. v. FERC, 891 F.2d 323, 330-31 (D.C. Cir. 1989) (holding that reduction proper under Hensley because, although petitioner prevailed on challenge to specific fee,plaintiff failed to prevail on blanket challenge to any filing fee)*fn4 ; Rendon v. AT&T Techs., 883 F.2d 388, 399 (5th Cir. 1989) (holding reduction proper where, although plaintiffs prevailed on some claims, plaintiffs "fail[ed] to prove discrimination in hiring and termination practices"); Thomas ex rel. A.T. v. Dist. of Columbia, No. 03-1791, 2007 WL 891367, at *5 (D.D.C. Mar. 22, 2007) ("Plaintiff ultimately succeeded on only two of ten claims [raised] in her Complaint."); Martini v. Fed. Nat'l Mortgage Ass'n, 977 F. Supp. 482, 484, 489-91 (D.D.C. 1997) (reducing fees where plaintiff prevailed on Title VII claims but lost on common law tort claims); Atlanta Journal & Constitution v. City of Atlanta Dep't of Aviation, 347 F. Supp. 2d 1310, 1326 (N.D. Ga. 2004) ("Plaintiffs have prevailed on some, but not all of their claims."); Carroll v. Blinken, 899 F. Supp. 1214, 1216 (S.D.N.Y. 1995) (reducing fees where plaintiffs were prevailing parties "only on [a] separate and obviously minor issue" and "not on the major and important issue which sparked this litigation"); Ryan v. Raytheon Data Sys. Co., 601 F. Supp. 243, 252, 255-56 (D. Mass. 1984) (reducing fees where plaintiff prevailed on discriminatory termination but lost on benefits discrimination claim).

Even the case Congressman McDermott cites in his response brief for the proposition that the Court must engage in an issue-by-issue assessment of Congressman Boehner's success and discount the fee request based on his failure to succeed on his unlawfully obtained argument supports a distinction based on issues or claims raised by the prevailing party. See Def. Reply 5-6 (citing Kennecott Corp. v. EPA, 804 F.2d 763 (D.C. Cir. 1986)). In Kennecott, various operators of nonferrous smelters petitioned for review of EPA regulations on the ground that the regulations violated a certain statute. In their petition, the operators advanced three basic arguments: (1) the EPA's procedural actions in promulgating the regulations at issue were improper; (2) the EPA's regulations concerning a financial test were inconsistent with the statute; and (3) the EPA did not have statutory authority to require a particular treatment for certain sulfur dioxide streams. Because in an earlier appeal the D.C. Circuit held in petitioners' favor on the first two arguments but rejected the third, the court concluded that the petitioners' fee award must be reduced for their failure to succeed on the sulfur dioxide streams issue. Kennecott, 804 F.2d at 765. Thus, in Kennecott, as in all of the cases Congressman McDermott cites, the fee award was reduced because the requesting party failed to succeed on an issue-a claim-on which it sought relief.

Here, as stated, Congressman Boehner, unlike the plaintiffs in the cited cases and the petitioners in Kennecott, succeeded on his only claim for relief for which he requests a fee award. In his complaint, Congressman Boehner alleged that Congressman McDermott violated the federal wiretapping statute, 18 U.S.C. ยง 2511(1)(c), and sought relief in the form of statutory and punitive damages and attorneys' fees. After holding that Congressman McDermott violated the statute and that the First Amendment did not shield him from liability, this Court awarded Congressman Boehner $10,000 in statutory damages, $50,000 in punitive damages, and reasonable attorneys' fees. Because the en banc court did not ...


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