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Lewis v. District of Columbia Government

United States District Court, District of Columbia

December 3, 2018




         Plaintiff Patricia Diane Lewis had worked in human resources for the District of Columbia's Office of the Chief Medical Examiner for decades before her employer first imposed suspicionless drug testing. Presented with a choice between acquiescing to this new requirement - to which she objected on privacy grounds - and being fired, Lewis chose door number two. When Defendant District of Columbia followed through on its threat to let her go, Plaintiff brought this suit. She alleged a bevy of constitutional and statutory violations against a host of defendants, under both D.C. and federal law, all of which relied on the same factual underpinning: the termination of her employment for refusing to submit to drug testing. Over the course of this litigation, Lewis's causes of action and the defendants against whom they were asserted were whittled down until a jury awarded Plaintiff over $800, 000 on her Fourth Amendment claim against the District of Columbia Government. Lewis now seeks close to $1 million in attorney fees and expenses. The Court agrees that she is entitled to a sizeable fee award but takes issue with some of her calculations and requests. It will thus grant in part and deny in part Plaintiffs Motion and will award her a total $592, 719.92 in fees and $53, 846.72 in costs and expenses.

         I. Background

         Given the nature of this Motion, the case's procedural history plays the starring role in the following rehearsal of the facts, relegating the conduct that led to this lawsuit to second fiddle. The Court thus directs any readers interested in the background of this case to the Court's now-extensive repertoire of prior Opinions on the subject. See Lewis v. Gov't of the Dist. of Columbia, 315 F.Supp.3d 571 (D.D.C. 2018); Lewis v. Gov't of the Dist. of Columbia, 282 F.Supp.3d 169 (D.D.C. 2017); Lewis v. Gov't of the Dist. of Columbia, No. 15-521, 2015 WL 8577626 (D.D.C. Dec. 9, 2015); Lewis v. Gov't of the Dist. of Columbia, 161 F.Supp.3d 15 (D.D.C. 2015).

         A long-time government employee, Lewis served as a human-resources management liaison for OCME. See ECF No. 101 (Pl. Mot.) at 2. In 2012, the City moved the Office from its Massachusetts Avenue home to a new forensics building as part of an effort to consolidate a number of departments under one roof. See Lewis, 315 F.Supp.3d at 574. This relocation spurred the D.C. Government - acting on an order from then-Mayor Vincent Gray - to institute mandatory criminal-background checks along with drug and alcohol testing as a condition of the employees' transfer to the new facility. Id. Lewis objected. She first raised her privacy concerns verbally at the meeting in which OCME informed its employees of the new policy. Id. at 574-75. Despite repeated requests from management, Plaintiff continued to refuse to sign a form acknowledging the new policy. Id. at 575. Some nine months later, citing among other things Lewis's refusal to sign, the District fired her. Id. This termination prompted Plaintiff to seek the services of an attorney. She met with Charles Bonner, a California attorney at the firm of Bonner & Bonner, who first attempted to negotiate her return to work. See Pl. Mot. at 1-3. When these efforts bore no fruit, Lewis filed suit.

         Her operative Complaint asserted eleven separate causes of action against five named Defendants and fifty “Does, ” all stemming from her termination and the events preceding it. See ECF No. 7 (Am. Compl.). In addition to suing the District of Columbia itself, Lewis also named Vincent Gray, then the mayor; Charles T. Tucker, an attorney for the D.C. Government who first informed Lewis of the mandatory drug testing and purportedly threatened to fire anyone who did not comply; Beverly Fields, OCME's Chief of Staff; Paul Quander, D.C.'s Director of Public Safety; and fifty unnamed parties whom Lewis promised to later identify. Id. at 5. Against these Defendants, the Complaint alleged a barrage of claims. Lewis asserted violations of the U.S. Constitution (the First, Fourth, and Fifth Amendments), federal statutes (Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act), a D.C. statute (the D.C. Human Rights Act), and D.C. common law (defamation, intentional infliction of emotional distress, and wrongful termination). Id. at 13-28. Although styled as a cause of action, Plaintiff also tucked a request for declaratory and injunctive relief amongst the counts of her Complaint. Id. at 28. This vast array of both causes of action and Defendants previously led this Court to remark that Lewis's Complaint appeared as if counsel had “toss[ed] any conceivable claim into the cauldron and give[n] it a mighty stir.” Lewis, 161 F.Supp.3d at 23.

         As the reader may have anticipated, not all these claims made it to trial. First, on December 7, 2015, the Court granted in part a Motion to Dismiss filed by a subset of the Defendants. See Lewis, 161 F.Supp.3d at 37. This Opinion removed some Defendants altogether and limited the causes of action that could proceed against others. More specifically, the Court disposed of all causes of action against Gray and Fields, finding that any claim against them in their official capacity was redundant given Plaintiffs naming of the District. Id at 36. The Court found that any individual-capacity claim, conversely, failed to allege sufficient personal involvement. Id at 36-37.

         The Court similarly held that a subset of the counts against the District failed to clear the Rule 12(b)(6) hurdle. All three common-law causes of action could not proceed because Plaintiff had forgone first seeking administrative redress pursuant to the District's Comprehensive Merit Personnel Act. Id at 34-36. The same fate befell Plaintiffs procedural-due-process claim, but for a different reason: Lewis did not identify procedures she was owed but denied sufficient to raise her claim “above the speculative level.” Id at 31. Many of her statutory claims met the same end. The Court dismissed her Title VII discrimination count (which Lewis abandoned in her Opposition), Genetic Information Nondiscrimination Act count, and D.C. Human Rights Act count. Id at 31, 33-34. It also narrowed Lewis's ADA claim, only permitting it to go forward to the extent she alleged that the District had made an improper inquiry into her medical history. Id at 31-33.

         The two additional Defendants - Tucker and Quander - filed a separate Motion to Dismiss. Two days after ruling on the first Motion, the Court granted the second Motion as to Quander, thus removing him from the case, but denied it as to Tucker. See Lewis, 2015 WL 8577626, at *1. The three counts asserted against him thus proceeded.

         For those keeping score, three counts against each of two Defendants survived these proceedings: violations of the First Amendment, Fourth Amendment, and ADA against the District, and claims under the Fourth Amendment as well as the torts of IIED and defamation against Tucker.

         Summary judgment took another bite out of Plaintiff s case. Lewis there voluntarily dismissed her defamation claim against Tucker and all causes of action against the still-unidentified Doe Defendants. See Lewis, 282 F.Supp.3d at 177. The Court further narrowed the remaining scope of her Complaint. It held that summary judgment should be entered in favor of the District on the First Amendment claim and in favor of Tucker on IIED. Id. at 184, 190. Factual issues, however, prevented any ruling on the Fourth Amendment against both Defendants, which the Court characterized as “the heart of this suit.” Id. at 184. It similarly found that factual questions most appropriate for a jury remained as to Plaintiff s ADA count asserted against the District. Id. at 188-89.

         The enduring counts went to trial. Not all, however, made it to the jury. With one more turn in this saga, the Court granted Tucker's Rule 50 Motion following the close of Plaintiff s evidence, ending his role in this case. See 03/14/2018 Minute Entry. Lewis's remaining claims - now narrowed to two causes of action against one Defendant - were submitted to the jury, which found for her on the Fourth Amendment, but not on the ADA count. See Lewis, 315 F.Supp.3d at 576. It awarded her a total of $802, 800 in damages, composed of $499, 800 in economic damages and $303, 000 in non-economic damages. See Pl. Mot. at 1. And that is how, loyal readers, Lewis's case wound its way from an eleven-count Complaint against a host of Defendants to a victory on one claim against one Defendant.

         But our train is not quite at the station. The District submitted extensive post-trial briefing, requesting that the Court reverse the jury's verdict and instead grant judgment in its favor. See ECF No. 84. The Court denied this Motion. See ECF No. 90. Then, a few months later, came this request for fees. Lewis's Motion seeks $876, 670 in fees for the toil of her three attorneys and reimbursement of $85, 244.41 for the expenses they incurred in this litigation. See Pl. Mot. at 23. (As recounted below, Lewis slightly revised these figures in her Reply.)

         II. Analysis

         As is often the case with such quarrels, the parties raise no shortage of disputes. The main field of battle deals with fees themselves - which requires an analysis of the applicable rate, the number of hours, any adjustment for partial success, and entitlement to fees on fees - after which the Court will also address the issue of costs and expenses.

         A. Attorney Fees

         Under the “American Rule, ” each party ordinarily bears its own attorney fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 245 (1975). This default rule, however, can be altered by express statutory authorization. Id. Section 1988 is one such statute. See 42 U.S.C. § 1988(b). It provides for an award of a “reasonable attorney's fee” to the “prevailing party” of a suit brought to enforce certain civil-rights laws, including proceedings under 42 U.S.C. § 1983. The purpose behind this law is intuitive. It serves to “ensure ‘effective access to the judicial process for persons' with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at 1 (1976)). The awarded fee, accordingly, should be “sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). It should not, however, “produce windfalls to attorneys.” Blum v. Stenson, 465 U.S. 886, 897 (1984).

         Defendant here does not dispute that Lewis is a “prevailing party” - at least in part - and thus entitled to some award of fees. See generally ECF No. 106 (Def. Opp.) at ii-iii (Table of Contents). The dispute here, rather, turns on the proper sum that the Court should bestow. The basic framework governing this calculation is well settled. The Court's analysis rests on a three-part test: “A court must: (1) determine the ‘number of hours reasonably expended in litigation'; (2) set the ‘reasonable hourly rate'; and (3) use multipliers as ‘warranted.'” Salazar ex rel Salazar v. District of Columbia, 809 F.3d 58, 61 (D.C. Cir. 2015) (quoting Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015)). The number arising from the multiplication of the first two prongs of this test is dubbed the “lodestar” amount, which is awarded a presumption of reasonableness. See Bd. of Trustees of Hotel & Restaurant Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). An upward multiplier is warranted only in “rare” and “exceptional” circumstances, in which compelling factors, not taken into account by the lodestar calculation, require an adjustment to render the fee reasonable. See Perdue, 559 U.S. at 552-53.

         The fee applicant - here, Lewis - bears the burden at each step of this tripartite calculation. See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). As Plaintiff does not ask the Court to apply any upward multiplier to the lodestar calculation, the Court's task is clear, but by no means straightforward. Because much of the parties' fire is concentrated on the applicable hourly rate, that is where the Court begins. It then turns to the number of hours reasonably expended and the adjustment for less-than-complete success. Rounding out this section is an analysis of whether Lewis is entitled to reimbursement for the time spent preparing this fees petition, known colloquially as “fees on fees.”

         1. Rate

         The Court begins with some legal stage-setting. The determination of a “reasonable hourly rate” itself turns on a three-part test, called the “Covington” factors. These elements are: “(1) ‘the attorneys' billing practices'; (2) ‘the attorneys' skills, experience, and reputation'; and (3) ‘the prevailing market rates in the relevant community.'” Salazar, 809 F.3d at 62 (quoting Covington, 57 F.3d at 1107). The rate does not differ based on whether an attorney is engaged in private or public practice. See Blum, 465 U.S. at 894 (“It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization.”). In rendering its calculation, the Court is tasked with “fixing the prevailing hourly rate . . . with a fair degree of accuracy.” Covington, 57 F.3d at 1109.

         In the interest of completeness, the Court will march through each of the three steps in order. As the reader will quickly see, however, the principal site of conflict is the third factor.

         a. Attorneys' Billing Practices

         Lewis's attorneys attest that they have no established billing rate. Their cases, they say, come to them on contingency or flat fee. See Pl. Mot. at 16. No. matter. Precedent is clear that, in such a circumstance, this factor effectively drops out and the Court looks only to the next two. See Covington, 57 F.3d at 1107 (holding that attorneys with “no established billing practice” are entitled to “award based on the prevailing market rates”). Defendant does not argue otherwise.

         b. Attorneys' Skill, Experience, and Reputation

         Moving expeditiously to the next element, the Court has received affidavits documenting the experience of Plaintiff s counsel. Although it briefly runs through each attorney's background, they ultimately play little role here, for Defendant does not challenge these qualifications.

         When this case first came in the door, it landed on the desk of Charles Bonner, the senior attorney at the Law Offices of Bonner & Bonner. He handled the initial communication with the District and served as the primary drafter for Lewis's briefs and motions. See Pl. Mot. at 1, 3, 9. Charles Bonner is a seasoned litigator, having been in practice since 1979. See ECF No. 101, Attach. 1 (Charles Bonner Declaration), ¶ 6. In his 39 years of experience, he has been the lead attorney in over 75 trials and has litigated and settled over 100 cases in the last five years alone. Id.; Pl. Mot. at 14.

         A. Cabral Bonner - the second Bonner in the Law Offices of Bonner & Bonner - assisted Charles Bonner. His role leading up to trial consisted largely of reviewing and revising the motions drafted by the elder Bonner. Although newer to the field, Cabral Bonner too has racked up significant litigation experience. He is a 2006 graduate of Stanford Law School. See Charles Bonner Decl., ¶ 9; Pl. Mot. at 15. During his twelve years of practice, he has been involved in fifteen jury trials and argued three times before the Ninth Circuit. See Charles Bonner Decl., ¶ 9; Pl. Mot. at 15.

         As neither Bonner is a member of the D.C. bar, they took on Joseph Scrofano as local counsel when they first filed Lewis's case. See Pl. Mot. at 3. A 2008 law graduate of American University, Scrofano founded his own firm in 2011. See ECF No. 101, Attach. 5 (Joseph Scrofano Declaration), ¶¶ 2-3. He, too, has trial experience, if less extensive. Of the approximately 400 civil and criminal cases he has taken on during his ten or so years of practice, Scrofano has tried approximately 20 cases to verdict by a judge or jury. Id., ¶ 10.

         The Court observed the Bonners at length over the course of this litigation. The multiple days of trial offered a particularly helpful opportunity to evaluate their performance and the fruits of their experience. The Court believes they operated with a high degree of skill and professionalism. Although the Court did not have the same opportunity to observe Scrofano, he, too, appears to have performed his lesser duties appropriately.

         c. Prevailing Market Rates

         It is this third factor - the prevailing market rate - that garners most of the parties' attention, and that of this Court as well. This is no simple inquiry. See Eley, 793 F.3d at 100 (characterizing the task as “inherently difficult”). To satisfy this prong, the applicant must “produce satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. (quoting Blum, 465 U.S. at 895 n.11)

         Luckily, the Court - and, similarly, the fee applicant - need not cast about in the dark for a prevailing rate. There exists a set of matrices that lays out billing rates for the District of Columbia. These matrices serve as “one type of evidence” to which a fee applicant can point to satisfy its burden under this third prong and are commonly a “useful starting point” for the Court's ultimate determination. Id. (quoting Covington, 57 F.3d at 1109). Courts often, however, treat these matrices as both the starting point and the last word, simply awarding the rate set forth in the appropriate matrix. See, e.g., Smith v. District of Columbia,249 F.Supp.3d 106, 113 (D.D.C. 2017); Young v. Sarles,197 F.Supp.3d 38, 49-50 (D.D.C. 2016); Heller v. District of ...

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