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United States ex rel Miller v. Bill Harbert International Construction

February 26, 2009



Now before the Court comes relator Richard F. Miller's supplemental motion [980] for attorneys' fees. Upon consideration of the motion [980], the oppositions, the replies, the entire record herein, and applicable law, the Court will GRANT relator's motion in part for the reasons set forth below.


On May 14, 2007, the jury found defendants*fn1 liable for damages totaling approximately $34.4 million, which after trebling is $103.2 million. After subtracting for prior settlements and adding civil penalties, this Court entered final judgment for plaintiffs on August 10, 2007, in the amount of $90,438,087.66. (See docket entry [883].) The Court also entered judgment in favor of relator against defendants for reasonable attorneys' fees, costs, and expenses under 31 U.S.C. § 3730(d). (See id.)

On September 18, 2007, relator filed his fee petition and bill of costs. (Docket [929], [930].) The relator's fee petition sought reasonable fees, costs, and expenses incurred from June 1995 through July 31, 2007. After considering the relator's fee petitions, the oppositions, and the replies, the Court awarded relator $7,245,169.07 in reasonable attorneys' fees and $287,025.52 in reasonable expenses. In determining the fee award, the Court denied the relator's vigorous request for an enhancement (Docket [971] at 7) ("Fee Opinion I"). The Court also made limited reductions based on specific categories of time that were non-compensable (See Fee Opinion I at 51) as well as a 10% across-the-board reductions for vague descriptions of time entries, a 10% reduction for use of block billing, and a 5% reduction for excessive and redundant work. (Rel.'s Mot. 9.) The Court's ultimate Fee Order awarded the relator approximately 73% of the requested base fees and approximately 56% of the requested base costs.*fn2 (Rel.'s Mot. 7.)

The defendants then filed eight different post-trial motions challenging the verdict. (See Rel.'s Mot. [980] at 2.) Relator took the lead on opposing four of the eight post-trial motions, and the government took the lead on opposing the other four post-trial motions. (Id. at 2--3.) On June 23, 2008, this Court entered an order denying all eight of defendants' post-trial motions.*fn3

(Dkt [965].) As a result, relator was the prevailing party against defendants Bill Harbert International Construction, Inc. ("BHIC"), Harbert Corporation ("HC"), Harbert International, Inc.("HII"), Bilhar International Establishment ("Bilhar"), and Harbert U.K.

The relator now files his supplemental motion for attorneys' fees. The relator seeks compensation for the hours spent opposing defendants' post-trial motions, as well as the time spent preparing and submitting the first fee petition to the Court. The relator seeks a total of $478,198.50 in attorneys' fees and $30,194.06 in costs and expenses for the post-trial merits work and $636,537.92 in attorneys' fees and $119,105.84 in costs and expenses for work done in conjunction with obtaining fees in the case. Thus, relator's supplemental fee petition requests a total award of $1,264,036.32.*fn4

For the reasons set forth below, the Court has decided to award the relator $303,526.16 in reasonable fees for merits-related work and$18,116.44in reasonable merits-related costs and expenses. The Court has also decided to award the relator $319,972.04 in reasonable fees for fees-related work and $91,064.10 in reasonable costs and expenses for fees-related work. Therefore, the Court will award the relator a total of $732,678.74 in this supplemental fee petition. (See infra Appendices 1--4.)


As this Court has previously held, relator is entitled to attorneys' fees under the False Claims Act. 31 U.S.C. § 3730(d)(1).

The initial estimate for attorneys' fees is calculated by "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate."*fn5 Blum v. Stenson, 465 U.S. 886, 888 (1984). A strong presumption exists that the product of these two variables-the "lodestar figure"-represents a reasonable fee. Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986).

A. Reasonable Rate

First, the Court must determine the rate that should apply to WilmerHale's*fn6 hours. This Court has already determined that WilmerHale's 2007 rates are reasonable. (Mem. Op. [971] at 15--23.) In this supplemental fee petition, however, relator argues that 2008 rates should apply-both to the work that was done in 2007 and to the work that was done in 2008. Relator argues that he is entitled to be compensated at WilmerHale's 2008 rates for all of their work as a means of approximating the value of historic rates had they been paid when the services were actually rendered.

The Court rejects the relator's request to use 2008 rates for the work performed in 2007.

First, "it is clear that the Supreme Court contemplated a substantial delay when it referred to compensation received 'several years' after the services were rendered as not being equivalent to the same dollar amount as if received 'reasonably promptly' after the legal services were performed." Salazar v. District of Columbia, 123 F. Supp. 2d 8, 15 (D.D.C. 2000) (citing Missouri v. Jenkins, 491 U.S. 274, 283--84 (1989)). In addition, using the 2008 rates for 2007 work would result in a windfall in this case, which even if the Court accepted relator's "time value of money argument," would be impermissible. See Murray v. Weinberger, 741 F.2d 1423, 1433 (D.C. Cir. 1984). From 2007 to 2008, those WilmerHale attorneys who performed merits-based work on this case saw their rates increase by an average of 19%. (BHIC Opp'n [991] at 11.) This is a far sharper increase than inflation or the "time value of money." As a result, the Court will apply WilmerHale's 2007 rates to the work done in 2007.

As for the work done in 2008, the Court will apply WilmerHale's 2008 rates. A law firm's market rate is presumptively reasonable. Laffey v. Northwest Airlines, Inc. 746 F.2d 4, 22 (D.C. Cir. 1984) (overruled on other grounds). Moreover, WilmerHale's 2008 rates are within those prevailing in D.C. for lawyers conducting complex, federal-court civil litigation and its rates align with those of its competitors. (See Ex. 1, Bell 2d Supp. Decl. ¶ 23; Ex. 2, Davidson 2d Supp. Decl. ¶ 13; Ex. 3, Braga 2d Supp. Decl. ¶ 4.) The attorneys who worked on the case also appear to have the level of skill, experience, and reputation that would command those rates on the open market. (See Rel.'s Mot. at 15--16.) Relator has supported his argument for the new rates with declarations of experts. (Rel.'s Mot. 15.) The defendants' speculation that WilmerHale's rates "may be rejected by clients" (Opp'n of Harbert International Inc. [992], et al at 10)*fn7 is not enough to overcome WilmerHale's evidence and the presumption of reasonableness.

B. Reasonable Hours

The Court has already stated the principles that govern the determination of whether hours were reasonably expended in litigation. (See Fee Opinion I at 30--32.) In brief, a fee petitioner must submit documentation supporting its fee request, and the documentation must be sufficiently detailed to permit the Court to make a determination of whether the claimed hours are justified. Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). The district court can exercise discretion in reducing the fee award by specific amounts in response to specific objections. Donnell v. United States, 682 F.2d 240, 250 (D.C. Cir. 1982). However, the Court can also reduce fees "by a reasonable amount without providing an item-by-item accounting." Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004).

In this case, the second approach is appropriate. Although the Court undertook an item-by-item accounting in the original fee petition, and then took a further percentage reduction, that analysis resulted in a 169 page opinion. Although that may have been appropriate with respect to the original petition, in which the relator sought approximately $20,000,000 in legal fees, the Court is now at the "fees-for-fees" stage, where undertaking an item-by-item accounting would result in marginal utility; indeed, "once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluation of each phase or category of counsel's work." Cobell v. Norton, 407 F. Supp. 2d 140, 1466 (D.D.C. 2005) (citing Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976)). The percentage reduction approach has been endorsed by the D.C. Circuit when the Court recognizes that a large number of entries suffer from one or more deficiencies. Role Models America, Inc., v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (reducing hours by fixed percentage and multiplying by a reasonable rate); Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (affirming district court for "simply decreas[ing] the lodestar by a substantial fixed amount"). Indeed, the Supreme Court has cautioned that "a request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Culling through the minutiae of the time records each time a fee petition is submitted in this case would be impossible "lest [the Court] abdicate the remainder of its judicial responsibilities for an indefinite period."*fn8 Cobell v. Norton, F. Supp. 2d 140, 166 (D.D.C. 2005). "It is neither practical nor desirable to expect the trial court judge to have reviewed each paper in this massive case file to decide, for example, whether a particular motion could have been done in 9.6 hours instead of 14.3 hours." Id. (citing Copeland, 641 F.2d at 903). The Court believes that, with regard to the supplemental fee petition, using percentage reductions is "a fair and expeditious solution to determining the sum total of reasonable fees and expenses that plaintiff incurred." Cobell, 407 F. Supp. 2d at 166 (citing Jones v. Clinton, 57 F. Supp. 2d 719, 728 n.16 (E.D. Ark. 1999)).

Accordingly, instead of scrutinizing each and every time record to determine the amount of hours reasonably expended in the case, the Court will multiply the reasonable rate by the number of hours that the relators attorneys have claimed. It will then reduce that final "lodestar" amount by the percentage that it feels warranted based on the arguments contained in the parties' briefs, a review of the relevant time records*fn9 , precedent in this Circuit, and the reductions that were made for similar deficiencies in Fee Opinion I.

C. Defects in Relator's Time That Warrant Percentage Reductions

1. Inadequate Records

As noted above, a fee petitioner must provide sufficient support for his claims to "permit the District Court to make an independent determination whether or not the hours claimed are justified." Nat'l Ass'n of Concerned Veterans, 675 F.2d at 1327. Relator's supplemental fee petition suffers from the same defects that were present in the original fee petition: 1) counsel's time records contain vague and ambiguous entries; and 2) counsel have followed the practice of block billing. The Court will therefore reduce the total lodestar amount by 10% for each of these two deficiencies.

a. Vague Descriptions

In Fee Opinion I, the Court reduced the total lodestar award by ten percent because of vague descriptions. (Fee Opinion I at 52--56.) The time entries in the supplemental petition are "virtually identical to the sorts of descriptions this Court and others have repeatedly deemed inadequate." (Fee Opinion I at 53.) For example, with regard to the merits work, there are entries from numerous attorneys such as "Research re: posttrial issues." (See, e.g., Bell Supp. Decl., Ex. A-2, at 3, Bell, Robert, 8/7/07.) Other examples include "Review posttrial motion research memos"; "Work on responses to post-trial motions"; and "Edit sections of post-trial motion."*fn10 Of course, with such generic descriptions, the Court cannot determine which trial brief was being worked on, let alone whether the research was excessive or duplicative. Other entries are even more vague. For example, Robert Bell has entries that state "Telcon Rick Miller re: status" at least six times. (Bell Supp. Decl. Ex. A-2, 8/7/07, 8/28/07, 9/20/07, 10/8/07, 1/30/08, 8/16/08).

With regard to the fee petition billing entries, vague descriptions are even more troubling because relator's attorneys did not prevail with respect to many of the fee petition issues. As a result, they are not entitled to recover attorneys' fees with respect to those issues. However, when the time entries contain vague descriptions such as "Telecons Steve Braga and Steve Davidson re: case status"; "Discuss fee petition issues with Gelfond"; and "Research to compile statistics for fee petition. . ."*fn11 , the Court cannot determine whether those hours were spent on issues upon which the relator prevailed.

Accordingly, the Court agrees with the defendants that the vague entries require an across-the-board reduction. Consistent with Fee Opinion I, the Court will reduce the lodestar by 10% for the vague descriptions. (Fee Opinion I at 52--56); See also In re Olson, 884 F.2d 1415, 1428--1429 (D.C. Cir. 1989).

b. Block Billing

This Court reduced the relator's fees by 10% in the original fee petition because of the practice of block billing. (Fee Opinion I at 58.) Block billing "make[s] it impossible for the court to determine, with any degree of exactitude, the amount of time billed for a discrete activity," leaving the court "to estimate the reduction to be made because of such insufficient documentation." In re Olson, 884 F.2d 1415, 1428--29 (D.C. Cir. 1989). This Court has previously refused to "undertake the futile task of separating the plaintiff's block entries into their constituent tasks and apportioning a random amount of time to each." Cobell, 407 F. Supp. 2d at 160. Relator concedes that the supplemental petition suffers from the same block billing defects as the original petition*fn12 ; as a result, there is no reason to belabor the issue: the Court will again reduce the total lodestar figure by 10% to account for the practice of block-billing. (Fee Order I at 56--58.)

c. Clerical Work

Much like in the original fee petition, relators' supplemental fee petition includes some hours that were spent on clerical tasks. A prevailing party entitled to reasonable attorneys' fees may not recoup fees for time professionals spend on purely clerical tasks because such tasks "ought to be considered part of normal administrative overhead." Michigan v. United States EPA, 254 F.3d 1087, 1095--96 (D.C. Cir. 2001). Accordingly, tasks such as the copying and storage of pleadings, updating the qualifications of various attorneys for submission in the fee petition, and making copies and tabs are not compensable.*fn13 The defendants pointed out some instances of clerical work that were included in relator's billing records but did not attempt to point out all instances of clerical work and neither will the Court. The Court is again convinced that clerical work occupied only a very small portion of the hours billed by attorneys and a slightly larger portion of those billed by paralegals. Accordingly, consistent with the prior fee opinion, the lodestar will be reduced by five-percent for all paralegals and one-half percent for all attorneys for clerical work. (Fee Opinion I at 45--47.)

2. Inefficiencies and Improperly Claimed Work

a. Merits-Related Work

Relator claims to be entitled to $478,198.50 in attorneys' fees for merits-based work for the period from August 1, 2007 to July 31, 2008. (Rel.'s Mot [980] at 18.) Indeed, the defendants filed eight post-trial motions, and they ultimately did not prevail. The relator's attorneys took the lead responding to four of those motions.Therefore, the relator is entitled to a substantial amount of attorneys fees for the post-trial merits work.The defendants "cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response." City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986).

Nevertheless, WilmerHale's work on post-trial merits issues did result in some excesses. In response to defendants' post-trial motions, WilmerHale produced four briefs totaling approximately 115 pages. (BHIC Opp'n [991] at 4.) For the production of those briefs, relator's attorneys billed 989.2 hours, which works out to approximately $4,052.96 in attorneys' fees for each page of the brief that was produced.*fn14 Moreover, most of these fees were racked up in one month. As noted by the defendants, the fact that relators attorneys billed nearly $500,000 in legal bills for approximately one month's work, although not dispositive, weighs toward the conclusion that its merits-based work was excessive. (See BHIC Opp'n [991] at 5--6.)

Indeed, after examining WilmerHale's staffing practices, it becomes apparent how the attorneys racked up such a large figure in a relatively short amount of time. First, relator's counsel assigned one partner and one associate to each of the four opposition briefs and had six additional associates conduct specific research and drafting tasks as needed. Relator's counsel also had each of the four oppositions reviewed by each of the four partners assigned to overseea specific response brief. (Bell Supp. Decl. [Doc. 980] at ¶ 9.) This staffing practice appears to be excessive and inefficient. As the Court stated in Fee Opinion I, the division of labor does not necessarily require that each participant have complete knowledge of each stage in the overall process. (Fee Opinion I at 61, n. 65.) Relator's counsel, however, had four partners review each response brief, ensuring quadruplication of the fees generated with regard to the most expensive attorneys-the partners. Even if this practice resulted in briefs in which "the best arguments were being made," as relator contends (Rel.'s Reply [1021] at 20), that does not mean that the hours expended were reasonable. Were this argument to prevail, there would be no limit to the number of lawyers that law firms could use to review briefs in order to ensure that the best possible work product was produced. Instead of endorsing this approach, the Court must cap the attorneys' fees at an amount that it deems reasonable. See Goos v. National Ass'n of Realtors, 997 F.2d 1565, 1572 (D.C. Cir. 1993) ("There is a point at which thorough and diligent litigation efforts become overkill.")

Nor are the WilmerHale's staffing practices justified by the fact that they had only two weeks to respond to the post-trial motions. First, having each opposition brief reviewed by four partners instead of one would increase the amount of time necessary to prepare the post-trial briefs, not shorten it. Second, as pointed out by defendants, if relators were really pressed for time it is unclear why ...

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