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Open Communities Alliance v. Carson

United States District Court, District of Columbia

June 15, 2018

BEN S. CARSON, SR., Secretary of Housing and Urban Development, in his official capacity, et al., Defendants.


          Beryl A. Howell, Chief Judge.

         The plaintiffs, Open Communities Alliance and two individuals, prevailed in their suit to enjoin the defendants, the U.S. Department of Housing and Urban Development (“HUD”) and HUD Secretary Ben Carson, see Open Cmtys. All. v. Carson, 286 F.Supp.3d 148 (D.D.C. 2017), from delaying for two years, “without notice and comment or particularized evidentiary findings, ” id. at 152, the implementation of a final rule regarding the calculation of voucher subsidies. Now, following the entry of judgment in the plaintiffs' favor, Stipulated Judgment and Order at 2, ECF No. 34, the plaintiffs seek a total award of $154, 272.11 in attorneys' fees and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), see Pls.' Mot. Atty's' Fees & Costs (“Pls.' Mot.”), at 1, ECF No. 35, for their 700.3 hours of attorney time and 103 hours of paralegal time, plus costs, litigating this matter, id. at 8. The defendants do “not dispute that Plaintiffs are entitled to a fair and sizable award of attorneys' fees, ” and do not “contest their request for costs or [] the billing rate they employ.” Defs.' Opp'n Pls.' Mot. (“Defs.' Opp'n”) at 3, ECF No. 36. The defendants dispute solely “whether the amount of fees that Plaintiffs request is reasonable and warranted, ” id. at 3, and argue that the plaintiffs are entitled only to two-thirds of their request amounting to $102, 794.66, Defs.' Suppl. Defs.' Opp'n (“Defs.' Suppl.”) at 2, ECF No. 39. For the reasons set out below, the plaintiffs' motion is granted in full.

         I. BACKGROUND

         As noted, the plaintiffs seek fees for 700.3 hours of attorney time, billed at $198 per hour, and 103 hours of paralegal time, billed at $140 per hour. Pls.' Mot. at 8-10.[1] The plaintiffs derive their attorney time calculation from timesheets submitted by each of five co-counsel organizations, which add up to 778.1 attorney hours and 114.4 paralegal hours-a total that the plaintiffs then voluntarily cut by 10 percent, or 77.8 attorney hours and 11.4 paralegal hours, in order “to account for any concerns that may arise regarding ‘block billing' practices and to ensure that their bottom line figure is reasonable.” Id. at 11-13.

         In addition to the timesheets from each co-counsel organization, see Pls.' Mot., Exs. E-I, ECF Nos. 35-7-35-11, which include more than 430 individual entries, the plaintiffs submitted a detailed declaration that explains how the plaintiffs chose which hours to bill by “carefully review[ing] each time entry” and “exercis[ing] billing judgment to forego recovery of certain work so as to ensure that the fees requested are reasonable, ” Pls.' Mot., Attach. 2, Decl. of Sasha Samberg-Champion, Counsel, Relman, Dane & Colfax, PLLC (Mar. 15, 2018) (“Pls.' Decl.”) ¶ 23, ECF No. 35-2. Specifically, the plaintiffs excluded from their request “all time expended by all attorneys except the primary ones assigned to this case for each organization; [] attorney or paralegal time spent on calls, at hearing preparation sessions, or at hearings for which that attorney or paralegal's presence was not required;” time spent “on witnesses that ultimately were not used;” time spent “responding to press inquiries;” and “substantial” amounts of time spent on “co-counsel and client agreements.” Id. ¶ 24. In addition to then cutting their overall hours by ten percent “to account for any concerns regarding block billing or inefficiencies, ” id. ¶ 27, the plaintiffs have not billed for any time worked after January 5, 2018, including time spent on the instant motion, id. ¶¶ 25-26.


         The EAJA provides, in pertinent part, that “a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, ” 28 U.S.C. § 2412(d)(1)(A), with certain exceptions not relevant here, such as cases where the government's position was “substantially justified” or “special circumstances make an award unjust.” As the Supreme Court has “often recognized, ‘the specific purpose of the EAJA is to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions.'” Astrue v. Ratliff, 560 U.S. 586, 599 (2010) (Sotomayor, J., concurring) (quoting Commissioner v. Jean, 496 U.S. 154, 163 (1990)); see also Scarborough v. Principi, 541 U.S. 401, 406 (2004) (authorizing attorney's fee awards against the Federal Government was intended “to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government” (internal quotations and citation omitted)); Sullivan v. Hudson, 490 U.S. 877, 883 (1989) (the EAJA was designed to address the problem that “[f]or many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process” (internal quotations and citation omitted)).

         The role of the district court is “to determine what fee is ‘reasonable.'” Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec., 857 F.3d 907, 910 (D.C. Cir. 2017) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); see also Id. at 911 (fee awards under EAJA are reviewed for abuse of discretion). In making this determination, the district court reviews “[t]he number of hours reasonably expended on behalf of the prevailing party . . . by evaluating the total number of hours expended and disallowing unproductive time or time spent on unsuccessful claims” and excluding from the calculation “hours that are ‘excessive, redundant, or otherwise unnecessary.'” Murray v. Weinberger, 741 F.2d 1423, 1427 (D.C. Cir. 1984) (quoting Hensley, 461 U.S. at 434); Wash. All. of Tech. Workers, 857 F.3d at 910. Fee applications must “include contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work with supporting documents, if any.” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989).


         The defendants contend that the plaintiffs' requested fee award should be reduced by one-third because: (1) the plaintiffs' use of block billing, including the improper billing of time for administrative or clerical work, is per se unreasonable, Defs.' Opp'n at 10-15; and (2) the plaintiffs' timesheet entries are vague and/or duplicative, id. at 4-10. Neither contention is persuasive.

         A. The Plaintiffs' Did Not Submit Improper Bills

         The defendants argue that the plaintiffs' request “should be reduced as a result of the significant amount of block billing entries, ” Defs.' Opp'n at 10, citing 148 such entries, Defs.' Suppl., Exs. A-B, D, ECF Nos. 39-1, 39-2, 39-4, which the defendants posit prevent the Court from determining the reasonableness of the time spent on various tasks.[2] Although block billing, where “time records lump together multiple tasks, ” can “mak[e] it impossible to evaluate their reasonableness, ” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004), contrary to the defendants' view, such billing is not per se impermissible. Instead, a fee petition “need not present the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney.” Shaw v. Dist. of Columbia, 210 F.Supp.3d 46, 52 (D.D.C. 2016) (quoting Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)).

         Block billing is even less concerning where the plaintiffs have prevailed on all of their claims, see DL v. Dist. of Columbia, 256 F.R.D. 239, 245 (D.D.C. 2009), rev'd on other grounds, 713 F.3d 120, 129 (D.C. Cir. 2013), or where the block billing does not “interfere[] with the [c]ourt's ability to evaluate the reasonableness of billed hours spent on specific motions or filings, ” Hernandez v. Chipotle Mexican Grill, Inc., 257 F.Supp.3d 100, 112 (D.D.C. 2017) (citing Role Models, 353 F.3d at 970). Ultimately, the test of the plaintiffs' timesheets is whether they are “of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended.” Role Models, 353 F.3d at 970 (quoting In re Olson, 884 F.2d 1415, 1428 (D.C. Cir. 1989)).

         The plaintiffs' timesheets meet that standard. The defendants cite in their briefing three examples of block billing, Defs.' Opp'n at 11-12, none of which poses any difficulty in evaluating reasonableness. Indeed, many of the 148 entries identified by the defendants as block billed simply provide significant detail about related tasks and the defendants “appear[] to conflate entries in which plaintiff[s'] counsel has provided greater detail with impermissible block ...

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