Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Salazar v. District of Columbia

United States District Court, D. Columbia.

March 21, 2014

OSCAR SALAZAR, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants

Page 48

[Copyrighted Material Omitted]

Page 49

[Copyrighted Material Omitted]

Page 50

For OSCAR SALAZAR, bye his parents and next friends, ADELA AND OSCAR SALAZAR, SYLVIA CRUZ-DIAZ ALVAREZ, JESSICA CRUZ, by her parent and next friend, SYLVIA CRUZ-DIAZ ALVAREZ, NELSON ALVAREZ, by his parent and next friend, SYLVIA CRUZ-DIAZ ALVAREZ, ABIGAIL FLORES, ANA IRIS FLORES, by her parent and next friend, ABIGAIL FLORES, CARLINA FLORES, by her parent and next friend, ABIGAIL FLORES, LUIS ALFREDO FLORES, by his parent and next friend, ABIGAIL FLORES, YANET ABIGAIL FLORES, by her parent and next friend, ABIGAIL FLORES, IRMA ISABEL FLORES, by her parent and next friend, ABIGAIL FLORES, MIRNA PAZ, TERESA ARGUETA, by her parents and next friends, ORFOLIO ARGUETA AND MIRNA PAZ, PAUSI ARGUETA, by her parents and next friends, ORFOLIO AGUETA AND MIRNA PAZ, Plaintiffs: April Isabel Land, LEAD ATTORNEY, UNIVERSITY OF NEW MEXICO, Albuquerque, NM; Bruce J. Terris, Kathleen Lillian Millian, LEAD ATTORNEYS, TERRIS, PRAVLIK & MILLIAN, LLP, Washington, DC; Lynn E. Cunningham, LEAD ATTORNEY, DuBois, WY; Paula D. Scott, LEAD ATTORNEY, PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Robert I. Berlow, Crownsville, MD.

For CRISTIAN JAVIER BAEZ, by his parent and next friend, LUCILA QUINTO, Plaintiff: April Isabel Land, LEAD ATTORNEY, UNIVERSITY OF NEW MEXICO, Albuquerque, NM; Bruce J. Terris, LEAD ATTORNEY, TERRIS, PRAVLIK & MILLIAN, LLP, Washington, DC; Lynn E. Cunningham, LEAD ATTORNEY, DuBois, WY; Paula D. Scott, LEAD ATTORNEY, PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Robert I. Berlow, Crownsville, MD.

For JUAN ANTONIO FLORES, Plaintiff: Bruce J. Terris, LEAD ATTORNEY, TERRIS, PRAVLIK & MILLIAN, LLP, Washington, DC; Robert I. Berlow, Crownsville, MD.

For ALL PLAINTIFFS, Plaintiff: Bruce J. Terris, Kathleen Lillian Millian, LEAD ATTORNEYS, Zenia Sanchez Fuentes, TERRIS, PRAVLIK & MILLIAN, LLP, Washington, DC; Elisabeth J. Lyons, DRINKER BIDDLE & REATH, LLP, Washington, DC.

For DISTRICT OF COLUMBIA, Defendant: Alan S. Block, LEAD ATTORNEY, BONNER KIERNAN TREBACH & CROCIATA, LLP, Washington, DC; Bradford Collins Patrick, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC; Charles Luverne Reischel, Nancy S. Schultz, LEAD ATTORNEYS, Arabella W Teal, Marceline D. Alexander, OFFICE OF CORPORATION COUNSEL, D.C., Washington, DC; Elizabeth Sarah Gere, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA, Civil Litigation Division, Washington, DC; Ellen A. Efros, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Civil Litigation Division, Washington, DC; Peggy Massey, LEAD ATTORNEY, DEPARTMENT OF HUMAN SERVICES, Office of General Counsel-St. Elizabeths, Washington, DC; Robert C. Utiger, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Washington, DC; Wanda Tucker, LEAD ATTORNEY, DEPARTMENT OF HEALTH, Medical Assistance Administration, Washington, DC; Grace Graham, OFFICE OF THE ATTORNEY GENERAL, Washington, DC.

For HEALTH SERVICES FOR CHILDREN WITH SPEICAL NEEDS, Interested Party: Allen Vern Farber, LEAD ATTORNEY, James Aston Barker, DRINKER BIDDLE & REATH, Washington, DC; Andrew Butz, LEAD ATTORNEY, BONNER, KIERNAN, TREBACH & CROCIATA, LLP, Washington, DC.

For MCKESSON HEALTH SOLUTIONS, LLC, Interested Party: Andrew Butz, LEAD ATTORNEY, BONNER, KIERNAN, TREBACH & CROCIATA, LLP, Washington, DC.

For HEALTH SERVICES FOR CHILDREN WITH SPECIAL NEEDS, INC., Interested Party: Andrew Butz, LEAD ATTORNEY, BONNER, KIERNAN, TREBACH & CROCIATA, LLP, Washington, DC; James Aston Barker, LEAD ATTORNEY, DRINKER BIDDLE & REATH, Washington, DC; Alan S. Block, BONNER KIERNAN TREBACH & CROCIATA, LLP, Washington, DC.

For CHARTERED HEALTH PLAN, Intervenor Defendant: James L. Feldesman, LEAD ATTORNEY, FELDESMAN TUCKER LEIFER FIDELL LLP, Washington, DC.

For D.C. CHARTERED HEALTH PLAN, INC., Intervenor Defendant: Andrea R. Calem, LEAD ATTORNEY, EPSTEIN BECKER & GREEN, P.C., Washington, DC.

For CAPITAL COMMUNITY HEALTH PLAN, INC., Movant: James L. Feldesman, LEAD ATTORNEY, FELDESMAN TUCKER LEIFER FIDELL LLP, Washington, DC.

For CHILDREN'S LAW CENTER, Movant: Allan Baron Moore, LEAD ATTORNEY, COVINGTON & BURLING, Washington, DC; Katharine R. Goodloe, PRO HAC VICE, COVINGTON & BURLING LLP, Washington, DC.

For KATY LISETTE ALVAREZ, Plaintiff: Jane Perkins, LEAD ATTORNEY, NATIONAL HEALTH LAW PROGRAM, Chapel Hill, NC; Kathleen Lillian Millian, LEAD ATTORNEY, TERRIS, PRAVLIK & MILLIAN, LLP, Washington, DC.

For MARION BARRY, in his official capacity as Mayor of the District of Columbia, Defendant: Charles Luverne Reischel, Nancy S. Schultz, LEAD ATTORNEYS, Arabella W Teal, OFFICE OF CORPORATION COUNSEL, D.C., Washington, DC; Robert C. Utiger, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Washington, DC; Wayne Chester Witkowski, OFFICE OF THE ATTORNEY GENERAL, DC, Legal Counsel Division, Washington, DC.

For VERNON HAWKINS, in his official capacity as Interim Director of the Department of Human Services, Defendant: Charles Luverne Reischel, Nancy S. Schultz, LEAD ATTORNEYS, Arabella W Teal, OFFICE OF CORPORATION COUNSEL, D.C., Washington, DC; Peggy Massey, LEAD ATTORNEY, DEPARTMENT OF HUMAN SERVICES, Office of General Counsel-St. Elizabeths, Washington, DC; Robert C. Utiger, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Washington, DC; Wayne Chester Witkowski, OFFICE OF THE ATTORNEY GENERAL, DC, Legal Counsel Division, Washington, DC.

For ADVANTAGE HEALTHPLAN INC., Movant: Laurence Schor, LEAD ATTORNEY, Asmar, Schor & McKenna, PLLC, Washington, DC.

Page 51

MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

Plaintiffs' counsel have filed a Motion for an Award of Litigation Costs, Including Attorneys' Fees and Expenses, for 2012 and for Work in the District Court That Had Been Held in Abeyance Related to Defendants' Motion to Terminate the Consent Decree [Dkt. No. 1850]. The Court has already awarded Plaintiffs' counsel $482,663.13 for fees undisputed by Defendants [Dkt. No. 1891]. Therefore, the amount remaining to be dealt with in this Motion is $851,853.46, and Plaintiffs' counsel seek a total award of $1,334,516.59.[1] Upon consideration of the Motion, the Opposition [Dkt. No. 1882], the Reply [Dkt. No. 1903], Defendants' Surreply [Dkt. No. 1909], an Errata [Dkt. No. 1912], Plaintiffs' Supplemental Brief [Dkt. No. 1943], and the extensive record in this case, the Court concludes that the Motion should be granted in part and denied in part.

Defendants raise many arguments that were addressed at length in the Court's recent Memorandum Opinion [Dkt. No. 1922] granting in part and denying in part Plaintiffs' Motion for an Award of Litigation Costs, Including Attorneys' Fees and Expenses, For 2011 and Certain Categories and Work from 2010 Through 2012 That Had Previously Been Held in Abeyance or Not Decided. Salazar v. Dist. of Columbia, No. 93-452, 991 F.Supp.2d 39, 2014 WL 342084 (D.D.C. Jan. 30, 2014) (" Salazar III" ). The Court will incorporate the analysis in Salazar III and focus this opinion on the resolution of arguments that were not previously raised.

I. APPROPRIATE BILLING RATES FOR COUNSEL

In Salazar III, 2014 WL 342084, at *1-*3, this Court upheld the use of the Legal Services Index (" LSI" ) of the Nationwide Consumer Price Index (" CPI" ) to update the Laffey rates at which Plaintiffs' counsel are compensated. For all of the reasons laid out in Salazar III, the Court again concludes that the LSI is a more reasonable and accurate index for the costs of legal fees than the All-Items CPI for the Washington, D.C. area. See id.; see also Eley v. Dist. of Columbia, No. 11-309, 999 F.Supp.2d 137, 2013 WL 6092502, at *9-*10 (D.D.C. Nov. 20, 2013) (a thorough and comprehensive decision by

Page 52

Judge Beryl Howell that reached the same conclusion). Thus, Defendants' request to apply the All-Items CPI for the Washington, D.C. area shall be denied.

II. APPROPRIATE BILLING RATES FOR SERVICES OF PARALEGALS TO INDIVIDUAL CLASS MEMBERS, PURSUANT TO PARAGRAPH 64 OF THE SETTLEMENT ORDER

Defendants argue that Paragraph 64 of the Settlement Order prohibits Plaintiffs' counsel for charging for the work non-lawyers provide to individual class members. See Order Modifying the Amended Remedial Order of May 6, 1997 and Vacating the Order of March 27, 1997, at 40 (emphasis added) [Dkt. No. 663] (" Settlement Order" ). In Salazar III, this Court ruled that paralegals may be compensated for such work under the Settlement Order. 2014 WL 342084, at *3-*4. Defendants raise no new arguments, and, thus, their request to deny fees for work done by paralegals is again denied.

III. LEGAL WORK ON BEHALF OF INDIVIDUAL CLASS MEMBERS

A. Adequacy of Time Records

Defendants challenge Plaintiffs' counsel's " pervasive use of vague billing descriptions and block billing." Defs.' Opp'n at 13-18. They seek a 10% across-the-board reduction for vagueness and a 5% across-the-board reduction for block billing.[2]

Defendants cite several cases establishing that time records which include unrelated tasks that do not specify how much time was spent on each task are insufficient. Defs.' Opp'n at 17. However, that is not the situation here.

The Court finds that Plaintiffs' counsel's time records, including those cited by Defendants, contain a high level of detail. Plaintiffs' counsel have summarized how much time was spent on each type of case (i.e. reimbursement, reimbursement fair hearings, recertification, recertification fair hearings, referrals for non-class members, EPSDT). They use categories and subcategories to further identify the type of work described in the time entries. The time spent on each individual task for each class member is specified down to the minute.

Thus, the time records for individual claims are presented in a fashion that allows this Court to review Plaintiffs' counsel's records for reasonableness. Because the time records are adequate and for the same reasons the Court rejected this argument in Salazar III, 2014 WL 342084, at *4, Defendants' request for across-the-board reductions for vagueness and block-billing shall be denied.[3]

B. Unsuccessful Individual Claims

Defendants object to $22,132.11 in fees that Plaintiffs' counsel have requested for work on four individual claims where Plaintiffs did not prevail. Defs.' Opp'n at 19-22.

The Court has recently emphasized that " Plaintiffs are entitled to attorneys' fees

Page 53

for the work they do to monitor Defendants' compliance with the extensive and detailed Settlement Order, negotiated and consented to by all parties in this case, as long as the efforts of Plaintiffs' counsel are 'reasonably related to the claims upon which Plaintiffs were definitely successful.'" 2014 WL 342084, at *4 (quoting Turner v. Orr, 785 F.2d 1498, 1504 (11th Cir. 1986)); see also Blackman v. Dist. of Columbia, 390 F.Supp.2d 16, 20 (D.D.C. 2005) (noting that " test is whether the later issues litigated were inextricably intertwined with those on which the plaintiff prevailed in the underlying suit" ) (quotation and citation omitted).

This does not mean, as Defendants suggest, that this Court has granted de facto prevailing party status to Plaintiffs for every claim they make. However, Plaintiffs' counsel are clearly entitled to compensation for the work they do representing individual class members on claims related to denials or reduction of services to EPSDT-eligible children and for failures to reimburse beneficiaries for out-of-pocket expenses, issues that were long ago decided in Plaintiffs' favor by this Court. See Salazar v. Dist. of Columbia, 954 F.Supp. 278, 328-34 (D.D.C. 1996). By the same reasoning, Plaintiffs' counsel are not entitled to fees for work done on " a claim that is distinct in all respects from [Plaintiffs'] successful claims." Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

Three of the individual claims challenged by Defendants involved representing individuals in administrative hearings on issues " inextricably intertwined" with those on which Plaintiffs prevailed in this suit. First, Plaintiffs' counsel requested a fair hearing for " R.E." to challenge a decision to suspend or terminate the child's chiropractic therapy services without adequate advance notice. Second Affidavit of Bruce J. Terris, at ¶ 20 (Dec. 5, 2013) (" Second Terris Affidavit" ) [Dkt. No. 1903-3]. Eventually, a third party paid for the services, so a fair hearing was no longer necessary. Id.

Second, Plaintiffs' counsel requested a fair hearing for " D.H." to request reimbursement for significant out-of-pocket expenses owed to her for medical services rendered to her children. Id. at ¶ 21. Near the date of the hearing, D.H. withdrew her request for reasons beyond the control of counsel. Id.

Third, Plaintiffs' counsel requested a fair hearing for " R.H." to challenge a decision by the DC Healthy Smiles Program denying payment for deep gum and root cleaning and surgical bone reshaping services. Id. at ¶ 22 (incorporating Second Affidavit of Bruce J. Terris, at ¶ 29 (Aug. 26, 2013) [Dkt. No. 1859-1]).[4] R.H. eventually was unable to keep dental appointments for a period of time, and Plaintiffs' counsel eventually lost contact with him and his mother. Id.

All three claims involved representing individuals in administrative hearings on issues " inextricably intertwined" with those on which Plaintiffs prevailed in this suit. The Court has already found that Plaintiffs' counsel are entitled to compensation for representing class members within the scope of the Settlement Order, even if the client chooses to withdraw her case or if the firm loses contact with the client. Salazar III, 2014 WL 342084, at *5. Thus, Defendants' request to deny fees for these three claims because Plaintiffs'

Page 54

counsel were unsuccessful shall be denied.

However, Defendants are correct that they should not be billed $6,002.13 for the 44.792 hours of work Plaintiffs' counsel did on behalf of " A.S." Defs.' Opp'n at 21-22. The issue in that case was whether the Social Security Administration erroneously withheld a portion of A.S.'s Supplemental Security Income. Plaintiffs concede that the District of Columbia did not act in error and the relief Plaintiffs' counsel pursued and obtained was from the federal government, not the District of Columbia. Id. at ¶ 23. Thus, the claim is " distinct in all respects" from Plaintiffs' claims against the District of Columbia, Hensley, 461 U.S. at 440, and the $6,002.13 billed for representing " A.S." shall be denied.

C. Alleged Excessive Billing

Defendants argue that Plaintiffs' counsel have billed an excessive amount of time for work on individual claims, and seek a 40% across-the-board reduction to all fees ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.