The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
On July 29, 2008, following a jury trial, a verdict was rendered in favor of plaintiff and against the District of Columbia ("the District") in the amount of $180,000.00 with interest, attorney's fees and costs. See Judgment [#132]. On July 1, 2011, the court of appeals ordered this Court to require plaintiff to either accept a $90,000 remittitur or a new trial. Medina v. District of Columbia, 643 F.3d 323, 330 (D.C. Cir. 2011). Plaintiff accepted the remittitur on July 8, 2011. Praecipe [#170]. The only issue remaining before this Court is Plaintiff's Motion for Attorney's Fees [#173].
I. Plaintiff is Entitled to an Award of Attorney's Fees
Attorney's fees may be awarded to a plaintiff who prevails in an action brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5(k).*fn1 "The purpose of this provision is to encourage private litigants to act as 'private attorneys general' on behalf of enforcement of civil rights laws." Palmer v. Rice, No. 76-CIV-1439, 2005 WL 1662130, at *9 (D.D.C. July 11, 2005) (quoting Laffey v. Nw. Airlines, Inc., 746 F.2d 4, 11 (D.C. Cir. 1984)) (internal quotations omitted). Furthermore, to safeguard "'effective access to the judicial process' for persons with civil rights grievances . . . a prevailing plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" Turner v. District of Columbia Bd. of Elections and Ethics, 354 F.3d 890, 895 (D.C. Cir. 2004) (internal quotations and citations omitted).
At a hearing held on January 31, 2012, the defendant conceded that plaintiff is entitled to an award of fees based on the 2011 Laffey*fn2 rates. Thus, the only question presented is whether the defendant's claim that plaintiff is seeking compensation for unsuccessful efforts should modify the award of those fees.
II. Plaintiff is Not Entitled to Compensation for Efforts Unrelated to His Success
A. Controlling Authority as to Unsuccessful Claims The Supreme Court recently considered the issues presented by a plaintiff who ultimately prevailed yet nevertheless asserted claims that were unsuccessful:
[I]n the real world, litigation is more complex, involving multiple claims for relief that implicate a mix of legal theories and have different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not successful) have a reasonable basis. In short, litigation is messy, and courts must deal with this untidiness in awarding fees.
The Court then indicated that the prevailing party must be compensated for all the time her attorney spent in achieving the result obtained, even if that party failed to prevail on "every contention." Id. Furthermore, work on the unsuccessful claim must relate to the work on the successful claim, in order to merit such compensation. "The fee award, of course, should not reimburse the plaintiff for work performed on claims that bore no relation to the grant of relief. Such work 'cannot be deemed to have been expended in pursuit of the result achieved.'" Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). As the Supreme Court stated in Hensley:
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants--often an institution and its officers, as in this case--counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in pursuit of the ultimate result achieved." Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444, at 5049 (CD Cal. 1974). The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claims.
This Circuit has therefore concluded that, when separate legal claims are asserted but are based on the same facts, lack of success on one does not mean that the time spent on other unsuccessful claims should be disallowed. Williams v. First Gov't Mortg. & Investors Corp., 225 F.3d 738, 746 (D.C. Cir. 2000) (award of fees for work on all claims affirmed when claims were not distinctly different); Goos v. Nat'l Ass'n of Realtors, 997 F.2d 1565, 1569-70 (D.C. Cir. 1973) (claims of breach of contract and violation of Human Rights Act based on the same retaliatory discharge were not distinct); Morgan v. District of Columbia, 824 F.2d 1049, 1065-67 (D.C. Cir. 1987) (all claims were related because all were based on District's deliberate indifference to a prisoner's safety). See also Judicial Watch v. DOC, 470 F.3d 363 (D.C. Cir. 2006) (compensation for all discovery efforts, while unsuccessful, permitted when all related to Freedom of Information Act claim); Amer. Petroleum Inst. v. EPA, 72 F.3d 907, 911-12 (D.C. Cir. 1996) (although plaintiffs argued five grounds for the invalidity of the regulation, they asserted a single indivisible claim--the invalidity of the regulation). It is only when the unsuccessful claim is based on a different set of facts and a different legal theory that Hensley requires that the fees pertaining to the unsuccessful claim be disallowed. Trout v. Sec. of the Navy, 540 F.3d 442, 447 (D.C. Cir. 2008) (unsuccessful claim for pre-judgment interest distinct from successful sexual discrimination claim); George Hyman Const. Co. v. Brooks, 963 F.2d 1532, 1540 (D.C. Cir. 1992) (total and partial disability claims were based on different factual theories).
The following chart lists the claims made in plaintiff's second amended complaint, which was filed on October 29, 2002, and their ultimate outcomes.
Count I Denial of due Failing to enforce the September Dismissed on June process 1995 Summary Determination and 6, 2007
Order by the District of Columbia
Office of Human Rights (OHR), which concluded that MPD had discriminated against plaintiff on the basis of his national origin Count II Denial of due Failing to hold a hearing on Dismissed on June process plaintiff's second OHR complaint 6, 2007 before making a finding of no probable cause Count III Violation of Title Transferring plaintiff from the Jury verdict for the VII and 42 U.S.C. § Office of Internal Affairs (OIA) to District 1981 street duty after his 1994 promotion Count IV Violation of Title Denial of plaintiff's request to be Jury verdict for the VII and 42 U.S.C. § transferred back to OIA District 1981 Count V Retaliation in Failure to transfer plaintiff back to Jury verdict for violation of 42 OIA plaintiff in the U.S.C. § 1981 and amount of $180,000 D.C. Human Rights Act Plaintiff accepted court-ordered remittitur of $90,000
Count VI Denial of due Failing to enforce November 1, Dismissed on June process 1995 OHR Letter of 6, 2007
Determination, which found probable cause that plaintiff was subjected to unlawful discriminatory and retaliatory employment practices Count VII Retaliation in Repeated denials of plaintiff's Dismissed on June violation of 42 request to be transferred back to 6, 2007 U.S.C. § 1981 OIA Count VIII Denial of due Failing to reinstate plaintiff within Dismissed on June process 30 days of his acquittal on 6, 2007 criminal charges Count IX Retaliation in Refusal to return plaintiff to full Jury verdict for the violation of 42 duty and pay within 30 days of his District U.S.C. § 1981 acquittal on criminal charges Count X Discrimination and Denials of plaintiff's requests to Partially dismissed retaliation in participate in the Take Home on June 6, 2007 violation of 42 Cruiser Program and a break in to (solely that portion U.S.C. § 1981 plaintiff's office alleging a retaliatory office break in) Discrimination and retaliation claims respecting Take Home Cruiser Program and office break in withdrawn by Joint Motion to Amend the Pretrial Statement [#119] at
Defendant District of Columbia's Opposition to Plaintiff's Motion for Attorneys' Fees [#174] at 3-4.
I conclude that the District is correct insofar as it asserts that time spent on Counts I, II, VI, and VIII were premised on an independent violation of due process and were based on the District's failure to 1) enforce an OHR finding; 2) hold a hearing before dismissing plaintiff's second OHR complaint; 3) enforce an OHR letter of determination; and 4) reinstate plaintiff within 30 days of his acquittal. These claims, and the facts upon which they were based, are entirely different from the retaliation and discrimination claims that were submitted to the jury. On the other hand, counsel's work on Counts III, IV, IX and X (before it was withdrawn) was premised on what plaintiff claimed were a pattern of discriminatory and retaliatory acts against him based on his national origin, and his complaints of discrimination.
Specifically, plaintiff's first motion for partial summary judgment sought a determination that plaintiff's due process rights were violated by OHR when it determined, without holding a hearing, that he was not retaliated against for filing a discrimination claim. Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment [#8-1] at 1. That motion was denied without prejudice to filing a renewed motion, so that precise references to deposition testimony could be provided. See Order [#23] at 1.
Plaintiff's second motion for partial summary judgment proffered the same argument as the first, that plaintiff was denied a property right when the OHR made a decision without first holding a hearing. See Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment [#24-1] at 1. This motion was denied, not on the merits of plaintiff's due process claim, but rather, on the grounds that plaintiff's claim was based on disputed facts. Memorandum Opinion and Order [#30] at 11.
In plaintiff's third motion for partial summary judgment, plaintiff argued that his due process rights were violated when the District failed to comply with the OHR's September 19, 1995 decision awarding plaintiff back pay and overtime compensation and mandating that the District promise not to retaliate against him. Plaintiff's [Third] Motion for Partial Summary Judgment [#91] at ...