Berke v. Federal Bureau of Prisons ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY BERKE,
Plaintiff,
v. Civil Action No. 12-1347 (ESH)
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Larry Berke, a deaf individual, filed suit against the Federal Bureau of Prisons
(“BOP”) and Charles Samuels, Jr., in his official capacity as the Director of the BOP
(“Defendants”), alleging that defendants discriminated against him in violation of the
Rehabilitation Act, 29 U.S.C. § 790 et seq., by failing to adequately accommodate his deafness.
On September 25, 2012, this Court granted in part plaintiff’s motion for a preliminary injunction,
ordering defendants to determine whether the videophone system requested by plaintiff could be
installed without resulting in “undue financial and administrative burdens,” as required by 28
C.F.R. § 39.160(d). Plaintiff now seeks to recover attorney’s fees and costs pursuant to 29
U.S.C. § 794a(b) and Federal Rule of Civil Procedure 54(d). (Plaintiff’s Motion for Award of
Attorney’s Fees and Costs, Oct. 9, 2012 [ECF No. 20] (“Mot.”).) Upon consideration of
plaintiff’s motion, defendants’ opposition thereto (Defendants’ Opposition to Plaintiff’s Motion
for Attorney Fees and Costs, Jan. 31, 2013 [ECF No. 31] (“Opp’n”)), and plaintiff’s reply (Reply
in Further Support of Plaintiff’s Motion for Award of Attorney’s Fees and Costs, Feb. 7, 2013
[ECF No. 32] (“Reply”)), and for the reasons explained below, the Court will grant in part and
deny in part plaintiff’s motion.
1
BACKGROUND
In December 2011, plaintiff pled guilty to conspiracy to commit mail fraud under 18
U.S.C. § 1349. (See Complaint Ex. 1, Aug. 14, 2012 [ECF No. 1-1] at 2.) The indictment
asserted that Mr. Berke, along with his wife, son, and other individuals, 1 submitted fraudulent
claims to the United States government for reimbursement for providing telephone services for
hearing-impaired individuals. He was sentenced to 24 months in prison, followed by three years
of supervised release. (See id. at 3-4.)
On August 14, 2012, plaintiff filed a complaint alleging that defendants violated the
Rehabilitation Act by planning to incarcerate him at U.S. Penitentiary Florence ADMAX
Satellite Camp, a facility that he alleged did not have adequate accommodations for deaf
inmates. (Mot. at 1-2.) Plaintiff initially moved for a temporary restraining order, which was
later converted into a motion for a preliminary injunction.
After plaintiff filed his complaint, but before this Court ruled on the preliminary
injunction, defendants reassigned plaintiff to the ADMAX Satellite Camp in Tucson, Arizona
(“SPC Tucson”). (Mot. at 2 n.1; Opp’n at 3 & n.1.) They also agreed to provide Mr. Berke with
various accommodations at that facility, including closed-captioning on prison telephones, the
assignment of an inmate disability helper, access to a TTY phone, access to a live interpreter for
certain events, visual alarms, access to inmate email, dry erase boards and pens, and appropriate
medical attention. (See Mot. at 4.) Those accommodations were reduced to writing in a
declaration by Scott Pennington, a Unit Manager at SPC Tucson. (See Declaration of Scott R.
Pennington, Sept. 24, 2012 [ECF No. 14-2].) Plaintiff nevertheless chose to proceed with this
litigation to determine whether defendants were in violation of Section 504 of the Rehabilitation
1
Mr. Berke’s wife, his son, and other co-conspirators are also hearing-impaired.
2
Act by failing to provide him with access to videophone technology, as opposed to a TTY phone.
(See Preliminary Injunction Hearing Transcript [ECF No. 25] (“Tr.”) at 5 (“[W]e’re here on one
issue and one issue only still . . . which has to do with whether they’re required to provide an
accommodation to the plaintiff regarding the videophone system.”).) 2
On September 25, 2012, this Court held a hearing on the preliminary injunction motion.
Consistent with their written motions, defendants argued that the installation of a videophone
“would result in undue financial and administrative burdens,” especially given the difficulty in
monitoring videophone communications, and thus they were not required to offer that
accommodation in light of 28 C.F.R. § 39.160(d). (See Tr. at 165-66.) However, as the Court
pointed out, an agency’s determination that the requested accommodation would result in such
burdens must be “accompanied by a written statement of the reasons for reaching that
conclusion.” 28 C.F.R. § 39.160(d). Because defendants had not done any analysis to determine
whether it could reasonably comply with plaintiff’s request, the Court ruled that defendants had
not met their burden of proving that the installation of a videophone system would result in
undue financial and administrative burdens. (See Tr. at 167-69.) The Court therefore granted
plaintiff’s motion for a preliminary injunction in part and ordered the defendants to “undertake
an investigation or examination to determine whether or not [the videophone system] could be
installed consistent with their security requirements.” (Id. at 167.) However, the Court denied
plaintiff’s motion insofar as it sought an order requiring the installation of the videophone
system. (Id. at 167-68.) The Court also signed off on the stipulation agreed to by the parties
2
Using the TTY phone system, a deaf individual types a sentence into the system in English, and
the system then transmits a signal through a phone land line to another TTY machine, which
transcribes it into a typed English message on the other end. (See Tr. at 26-27.) The videophone
system, on the other hand, allows deaf individuals to see each other on a screen so that they can
use their native language—American Sign Language—to communicate. (See id. at 14.)
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reflecting their agreement that the BOP would provide Mr. Berke with the above-mentioned
accommodations. (Stipulation and Order, Sept. 27, 2012 [ECF No. 18] (“Stip.”).)
ANALYSIS
The Rehabilitation Act provides that “[i]n any action or proceeding to enforce or charge a
violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing
party . . . a reasonable attorney’s fee as part of the costs.” 29 U.S.C. § 794a(b). The Court must
first determine whether, in light of the partial relief granted by this Court, plaintiff is properly
considered a “prevailing party” under the Act. Then, assuming plaintiff is in fact entitled to
recover costs, the Court must determine whether plaintiff’s requested costs and attendant
attorney’s fees are reasonable under the law.
I. PREVAILING PARTY
A prevailing party is “one who has been awarded some relief by a court.” Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001). The
Supreme Court has long held that the “touchstone” of the prevailing party inquiry is “the
material alteration of the legal relationship of the parties.” Tex. State Teachers Ass’n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). Thus, in Buckhannon, the Supreme Court
rejected the application of the “catalyst theory,” which allows an award of attorney’s fees if the
plaintiff’s lawsuit brings about a voluntary change in the defendant’s conduct. 3 532 U.S. at 605.
Instead, “for a litigant to be a ‘prevailing party,’ there must have been a ‘judicially sanctioned
change in the legal relationship of the parties.’” Edmonds v. F.B.I., 417 F.3d 1319, 1322 (D.C.
3
Although Buckhannon involved the Americans with Disabilities Act and the Fair Housing
Amendments Act, the Supreme Court confirmed in that case that they “have interpreted these
fee-shifting provisions consistently.” 532 U.S. at 603 n.4; see also Hensley v. Eckerhart, 461
U.S. 424, 433 n.7 (1983) (noting that the standards for interpreting the meaning of “prevailing
party” are consistent across “all cases in which Congress has authorized an award of fees to a
‘prevailing party’”).
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Cir. 2005) (quoting Buckhannon, 532 U.S. at 605). Such changes are brought about by
“enforceable judgments on the merits and court-ordered consent decrees.” Buckhannon, 532
U.S. at 604. Following Buckhannon, this Circuit articulated a three-part test for determining
prevailing-party status: “(1) there must be a ‘court-ordered change in the legal relationship’ of
the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial
pronouncement must be accompanied by judicial relief.” Dist. of Columbia v. Straus, 590 F.3d
898, 901 (D.C. Cir. 2010) (quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C. Cir.
2003)).
Plaintiff argues that he is a “prevailing party” based on two factors: (1) that “Defendants
agreed [by way of a stipulation] to provide him numerous necessary accommodations,” and (2)
that “the Court granted his preliminary injunction in part.” (Mot. at 5.)
A. Transfer to SPC Tucson and Other Accommodations
Plaintiff claims that he is a prevailing party because he “secured the BOP’s agreement to
provide numerous accommodations requested by Mr. Berke.” (Reply at 3.) He notes that “[i]t
was not until after the lawsuit was filed that Defendants agreed to provide any accommodations.”
(Id. (emphasis omitted).) However, that type of “voluntary change in conduct” is precisely what
is contemplated by the now-rejected “catalyst theory,” see Buckhannon, 532 U.S. at 605, and
thus, those accommodations are insufficient to render plaintiff a prevailing party.
Plaintiff does not—and cannot—claim that either his transfer to SPC Tucson or the
accommodations the BOP agreed to provide him at that facility were the result of an
“enforceable judgment[] on the merits” or a “court-ordered consent decree[].” Buckhannon, 532
U.S. at 604. The parties provided the Court with a stipulation listing the accommodations that
the BOP had already agreed to provide Mr. Berke, and the Court signed off on that agreement to
5
acknowledge the resolution of all issues besides the one that remained for the preliminary
injunction hearing—namely, the request for a videophone. (See Stip.) However, that order did
not “entail the judicial approval and oversight involved in [a] consent decree[],” Buckhannon,
532 U.S. at 604 n.7, through which the Court would retain jurisdiction to ensure compliance with
the terms of the stipulation. Cf. Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of
Energy, 288 F.3d 452, 457 (D.C. Cir. 2002), superseded by statute on other grounds, 5 U.S.C.
§ 552(a)(4)(E) (holding that the Court’s entering of a “Stipulation and Order” approving the
parties’ terms of dismissal did not amount to a “court-ordered consent decree” that would render
the plaintiff the prevailing party). Thus, the Court does not find that plaintiff was a “prevailing
party” because of the accommodations the BOP agreed to provide him at SPC Tucson.
However, plaintiff is nevertheless entitled to recover attorney’s fees based on his partial success
at the preliminary injunction hearing.
B. Partial Grant of Preliminary Injunction Motion
While the Court declined to order the BOP to install videophones for plaintiff’s use, (Tr.
at 168), it did order, at the preliminary injunction hearing, the BOP “to comply with the
regulations” by investigating by a date certain whether videophones could be installed without
resulting in undue financial or administrative burdens. (Id. at 167.) Although plaintiff did not
obtain the exact relief that he sought, this order was nevertheless sufficient to render him a
“prevailing party” for purposes of recovering attorney’s fees.
Defendants insist that because the Court did not order the installation of the videophone
system, “Plaintiff did not get the relief he originally sought.” (Opp’n at 11.) While it is true that
he did not obtain the installation of a videophone system (as opposed to use of the TTY system),
it is well established that a plaintiff need not obtain complete relief to be considered a prevailing
6
party; “a civil rights plaintiff must obtain at least some relief on the merits of his claim” that
“materially alters the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12
(1992) (emphasis added). Prior to the Court’s ruling, defendants had not determined whether
videophones could reasonably be installed for plaintiff’s use, but as a result of the ruling, they
will be forced to make that determination. That is undeniably a change in the legal relationship
between the parties that directly benefits the plaintiff, since defendants are now legally obligated
to undertake steps that at a minimum will reassure plaintiff that the BOP has adequately
considered his request for accommodation, and could possibly result in the implementation of
such a videophone system. The fact that plaintiff may not have obtained all the relief he sought
is relevant to determining the amount of attorney’s fees that plaintiff can reasonably recover, but
does not alter his status as a “prevailing party.” See infra Section II.C.
II. REASONABLE FEES
Having determined that plaintiff is a prevailing party and is therefore entitled to recover a
“reasonable attorney’s fee” under 29 U.S.C. § 794a(b), the Court must now decide whether
plaintiff’s requested attorney’s fees are, in fact, reasonable. “The initial estimate of a reasonable
attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on
the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984) (citing
Hensley v. Eckerhart, 461 U.S. 424 (1983)). There is a strong presumption that this amount—
known as the “lodestar”—represents a reasonable fee. See Bd. of Tr. of Hotel & Rest. Emp.
Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998) (citing Pennsylvania. v. Del. Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986)).
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A. Reasonable Hourly Rate
The determination of a “reasonable hourly rate” requires an analysis of at least three
elements: “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and
the prevailing market rates in the relevant community.” Covington v. Dist. of Columbia, 57 F.3d
1101, 1107 (D.C. Cir. 1995). The prevailing market rates can be established either by the rates at
which prior fee awards have been made or based on published surveys of prevailing rates in the
community, such as the U.S. Attorney’s Office’s Laffey matrix. Id. at 1109.
Plaintiff in this case was represented by attorneys from the Washington Lawyers’
Committee for Civil Rights and Urban Affairs (the “WLCCR”) working together with attorneys
from the law firm of Ballard Spahr LLP. 4
1. WLCCR
The WLCCR does not charge its clients a regular fee for its services, so it suggests that
the Court should derive the reasonable hourly rate from what is known as the “updated Laffey
matrix.” 5 (Mot. at 8-9.) Defendants respond that the “USAO Laffey matrix” 6 is the appropriate
starting point for determining the prevailing market rates in this jurisdiction. (Opp’n at 14-15.)
The Court agrees with defendants.
Although plaintiff is correct that courts in this jurisdiction have, at times, approved the
use of the updated Laffey matrix, the USAO Laffey matrix is far more widely accepted. See, e.g.,
Heller v. Dist. of Columbia, 832 F. Supp. 2d 32, 48 (D.D.C. 2011) (“The Court finds the
frequency with which the USAO Laffey Matrix rates are applied to be strong evidence of both
4
According to the billing records, nine attorneys worked on this case, including four from the
WLCCR. This hardly seems like an efficient use of resources.
5
The updated Laffey matrix is available at http://laffeymatrix.com/see.html.
6
A copy of the USAO Laffey matrix is attached to defendants’ Opposition as Attachment A.
8
their prevalence and their reasonableness.”); Miller v. Holzmann, 575 F. Supp. 2d 18 n.29
(D.D.C. 2008) (noting the “widespread acceptance” of the USAO Laffey matrix); Am. Lands
Alliance v. Norton, 525 F. Supp. 2d 135, 150 (D.D.C. 2007) (referring to the USAO Laffey
matrix as the “standard matrix” in this jurisdiction). One reason for this preference is that the
updated Laffey matrix “reflects national inflation trends,” while the USAO matrix “relies on data
specific to the Washington, D.C. metropolitan area.” Miller, 575 F. Supp. 2d at 17. Thus, courts
in this jurisdiction have frequently referred to the USAO Laffey matrix as “the benchmark for
reasonable fees in this Court.” See, e.g., id. at 18 n.29 (quoting Pleasants v. Ridge, 424 F. Supp.
2d 67, 71 n.2 (D.D.C. 2006)). This Court agrees that the USAO matrix more accurately reflects
the prevailing market rates in the Washington, D.C. legal market. This is particularly true here,
where the hourly rates sought by the WLCCR attorneys under the updated Laffey matrix far
exceed even the rates sought by the private attorneys at Ballard Spahr. 7
The Court therefore finds that a “reasonable hourly rate” for the work performed by the
WLCCR attorneys is the rate set out in the USAO Laffey matrix, as shown here:
Attorney USAO Laffey Matrix Hourly Rate
Gardner $505
Fornaci $505
Golden $445
Finkenstadt $355
7
For example, WLCCR attorneys Elaine Gardner and Philip Fornaci would each receive an
hourly rate of $753 under the updated Laffey matrix based on their roughly 30 and 20 years of
litigation experience, respectively. (See Declaration of Elizabeth Elaine Gardner, Oct. 9, 2012
[ECF No. 20-3] (“Gardner Decl.”) ¶¶ 4, 6, 13.) The lead attorney on the case from Ballard
Spahr, Constantinos Panagopoulos, with over 20 years of litigation experience, seeks only
$550/hour. (See Declaration of Constantinos Panagopoulos, Oct. 9, 2012 [ECF No. 20-4]
(“Paganopoulos Decl.”) at 7.)
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2. Ballard Spahr
With respect to the attorneys from Ballard Spahr, the Court finds that their regular billing
rates are reasonable. In this Circuit, “an attorney’s usual bill rate is presumptively the reasonable
rate, provided that this rate is ‘in line with those prevailing in the community for similar services
by lawyers of reasonably comparable skill, experience, and reputation.’” Kattan by Thomas v.
Dist. of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum, 465 U.S. at 895-96 n.11).
As explained above, the USAO Laffey matrix is relevant evidence of the “prevailing” rates in the
Washington, D.C. area. The rates charged by the five Ballard Spahr attorneys who worked on
this case, though not identical to the Laffey rates, are very much “in line” with them. (Compare
Paganopoulos Decl. Ex. A at 7 (showing hourly rates for each attorney) with Opp’n at 17
(showing USAO Laffey matrix rates for each attorney).) For example, although attorney
Panagopolous charges an hourly rate of $550 compared to the USAO Laffey rate of $505,
Jonathan Lippert charged only $350, far lower than the $445 allowed for in the USAO Laffey
matrix. Altogether, two of the five Ballard Spahr attorneys charged higher rates than provided
for by the USAO Laffey matrix, two charged lower rates, and one charged exactly the same rate.
The Court therefore concludes that Ballard Spahr’s standard billing rates are reasonable.
B. Reasonable Hours Expended on the Litigation
To determine the lodestar, the Court must multiply the reasonable hourly rates by “the
number of hours reasonably expended on the litigation.” Blum, 465 U.S. at 888. Both WLCCR
and Ballard Spahr appear to have made a good-faith effort to eliminate hours billed for arguably
duplicative or unnecessary work. Ballard Spahr claims to have excluded 101.1 billable hours
from their total, resulting in 188.1 hours billed. (See Mot. at 10; Paganopoulos Decl. Ex. A at 7.)
WLCCR has excluded 22.7 billable hours, for a total of 74.9. (See Mot. at 10; Gardner Decl. at
10
10.) Thus, the two entities eliminated roughly 35% and 23% of their hours worked, respectively.
The Court therefore finds that the hours submitted by both entities are adequately documented
and are “not excessive, redundant or otherwise unnecessary.” Okla. Aerotronics, Inc. v. United
States, 943 F.2d 1344, 1347 (D.C. Cir. 1991).
C. Reduction Based on Limited Extent of Plaintiff’s Success
However, the inquiry does not end with the determination of the lodestar. To the
contrary, that is simply the “starting point.” Pleasants, 424 F. Supp. 2d at 73. The district court
must still consider whether to adjust the award of attorney’s fees in light of “the overall relief
obtained by the plaintiff.” Hensley, 461 U.S. at 435. “If the prevailing party achieved less than
complete success, [the court] must reduce that base to reflect the degree of success achieved.”
F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 599 (D.C. Cir. 1996). The degree of success is
determined by considering two questions: “(1) whether the party failed to prevail on claims that
were unrelated to the claims on which he succeeded, and (2) whether the party achieved a level
of success that makes the hours expended a satisfactory basis for making the fee award.”
Pleasants, 424 F. Supp. 2d at 73.
The first of those inquiries is not at issue here, because all of plaintiff’s claims were
“based on the same factual scenario” and “the same legal theory.” Goos v. Nat’l Ass’n of
Realtors, 68 F.3d 1380, 1384 (D.C. Cir. 1995); see also Bolden v. J & R Inc., 135 F. Supp. 2d
177, 181 (D.D.C. 2001) (“The fact that Plaintiffs did not prevail on a number of other counts is
of no significance because the underlying factual context . . . was the same for all claims.”).
Thus, the mere fact that plaintiff was not a “prevailing party” under the law with respect to the
accommodations that defendants have agreed to provide him at SPC Tucson does not justify
reducing the award of attorney’s fees.
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However, the Court concludes that the limited nature of the relief obtained by plaintiff at
the preliminary injunction hearing does support a reduction in attorney’s fees. The Supreme
Court has noted that, where a plaintiff’s legal claims are all based upon the same factual scenario
or legal theory, the court should determine fees by considering “the significance of the overall
relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”
Hensley, 461 U.S. at 435. The “most critical factor is the degree of success obtained.” Id. at
436. Thus, “if the district court determines and explains why the total hours expended were not
reasonable in relation to the results obtained—regardless of the number of claims raised—the
court has discretion to reduce fees.” Goos, 68 F.3d at 1387.
Here, the majority of the work undertaken by plaintiff’s counsel related to the briefing
and hearing on the preliminary injunction. At the hearing, the only issue was whether defendants
were in violation of the Rehabilitation Act by failing to provide plaintiff access to a videophone
system. (Tr. at 5.) Although the Court found that defendants had not complied with the Act’s
requirement that they provide a written explanation for their assertion that such an
accommodation would result in undue financial or administrative burden, the Court did not order
defendants to install the videophone system. To the contrary, the Court concluded that, in light
of the well-established rule that “it is not the Court’s obligation to tell the Bureau of Prisons what
or what not to do,” the Court “cannot . . . order them to install [the videophone] upon his arrival.”
(Id. at 166-67.) Instead, the Court simply ordered defendants to investigate whether such a
system could reasonably be installed. (Id. at 167.) The outcome of that investigation remains to
be seen and was in no way predetermined by this Court’s ruling. Even within that limited relief,
the Court declined to force the government to move at plaintiff’s desired pace; the Court noted
that although plaintiff requested immediate action, because plaintiff himself had “sat on his
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rights” for eight months, the BOP would have eight months in which to conduct the videophone
study. (Id. at 167-68.) Thus, no videophone had been installed as of plaintiff’s surrender date of
September 27, 2012, and he has now served roughly seven months of his 24-month sentence
without either the videophone system or a response from the BOP about its position as to
installing such a system.
In recognition that this result can in no way be considered “full” relief, it is appropriate to
significantly reduce the amount of attorney’s fees that plaintiff may recover. “There is no
precise rule or formula for making these determinations. The district court may attempt to
identify specific hours that should be eliminated, or it may simply reduce the award to account
for the limited success.” Hensley, 461 U.S. at 436. Here, the Court cannot parse the attorneys’
billing records to identify particular hours to exclude, since all hours were spent in pursuit of the
videophone and other accommodations. However, in light of the uncertainty as to whether
plaintiff will ever gain access to his requested accommodation, and the at least eight-month
window with no possibility of such an accommodation, the Court concludes that a 40% reduction
in attorney’s fees is appropriate. Such an award is well within this Court’s discretion. See
Hensley, 461 U.S. at 439 n. 14 (finding that district court in Brown v. Bathke, 588 F.2d 634 (8th
Cir. 1978), was well within its discretion to award payment for only 57.75 of the attorneys’ 174
hours spent on the case where plaintiff had sought reinstatement, lost wages, damages, and
expungement of derogatory material from her employment record, but had been awarded only
lost wages and expungement); Fisher v. Friendship Public Charter Sch., 880 F. Supp. 2d 149,
153-54 (D.D.C. 2012) (reducing fees by 50% because plaintiff did not succeed on three of his
four claims); Roseboro v. Billington, 618 F. Supp. 2d 85, 88-89 (D.D.C. 2009) (finding that a
one-third reduction in fees is appropriate in light of the fact that plaintiff sought extensive
13
damages, reinstatement, and other relief, but was awarded only expungement of certain charges
from his personnel record).
Using the USAO Laffey matrix rates for the WLCCR’s attorneys, and Ballard Spahr’s
standard billing rates, but reducing the hours by 40%, the Court concludes that plaintiff is
entitled to recover $20,975.70 in attorney’s fees for the WLCCR’s work, and $48,315.90 in
attorney’s fees for Ballard Spahr’s work.
III. REASONABLE COSTS
As a prevailing party, plaintiff is also entitled to recover reasonable costs. See Fed. R.
Civ. P. 54(d). 28 U.S.C. § 1920 specifically enumerates several categories of costs that plaintiffs
are entitled to receive, including: (1) fees of the clerk and marshal; (2) fees for printed or
electronically recorded transcripts; (3) fees and disbursements for printing and witnesses; (4) fees
for exemplification and the costs of making copies of any materials; (5) docket fees under
§ 1923; and (6) compensation of court appointed experts and compensation of interpreters.
Plaintiff seeks to recover $11,974.49 in costs, broken down as follows: (1) $122.70 for
delivery service; (2) $1,028.53 for deposition transcripts; (3) $18.40 for duplicating; (4)
$6,367.24 for expert witnesses; (5) $350.00 for filing fees; (6) $336.61 for Lexis research; (7)
$11.60 for postage; (8) $3,267.50 for professional services, of which $1267.50 covers
interpreters’ fees and $2,000 is for costs incurred to produce a demonstrative video for the
hearing; (9) $415.00 for service of subpoenas; (10) $28.41 for teleconferencing services; (11)
$21.00 for travel expenses; and (12) $7.50 for Westlaw research. (Paganopoulos Decl. Ex. A at
8.) 8
8
These numbers do not line up exactly with Mr. Paganopoulos’ breakdown on page 8 of his
declaration. The Court has shifted the totals for each category based on a close examination of
the receipts plaintiff submitted with his Reply Brief. For example, one of the bills included
14
Certain of plaintiff’s costs are undisputedly recoverable. First, filing fees are plainly
recoverable under 28 U.S.C. § 1920(1) and (5). Second, the costs of deposition transcripts and
“duplicating,” which apparently refers to photocopying, are recoverable under § 1920(2) and (4).
Third, the costs of the American Sign Language interpreters used with plaintiff’s expert are
recoverable under § 1920(6).
The rest of plaintiff’s requested costs, however, do not fall within any of the specifically
enumerated categories of § 1920. Although it is true that Rule 54(d) allows judges some limited
discretion to award costs not expressly authorized by § 1920, the statutory list “is not to be
routinely expanded.” Zdunek v. Wash. Metro. Area Transit Auth., 100 F.R.D. 689, 692 (D.D.C.
1983). Indeed, the Supreme Court itself has declared that “the discretion given district judges to
tax costs should be sparingly exercised with reference to expenses not specifically allowed by
statute.” Farmer v. Arabian Oil Co., 379 U.S. 227, 235 (1964). Moreover, Rule 54(d) itself
makes clear that “costs against the United States, its officers, and its agencies may be imposed
only to the extent allowed by law.”
Thus, this Court has declined to award costs for many of the categories of expenses for
which plaintiff now seeks reimbursement, such as: (1) the use of professional process servers,
Zdunek, 100 F.R.D. at 692 (noting that § 1920(1) only “authorizes taxation of the service fees
charged by the United States Marshals Service”); (2) postage, id.; El-Fadl v. Cent. Bank of
Jordan, 163 F.R.D. 389, 390 (D.D.C. 1995); (3) telephone services, Zdunek, 100 F.R.D. at 692;
El-Fadl, 163 F.R.D. at 390; (4) delivery fees, Johnson v. Holway, 522 F. Supp. 2d 12, 19
(D.D.C. 2007) (“Administrative fees, like delivery costs, are . . . considered ordinary business
under the subheading “professional services” was from Dennis Cokley, whom plaintiff identifies
as one of his expert witnesses. (See Reply Ex. A at 34.) The Court therefore shifted the
$1,550.00 of that bill from the “professional services” category to the “expert witnesses”
category.
15
expenses that cannot be recovered as costs.”) (internal quotation marks omitted); El-Fadl, 163
F.R.D. at 390; (5) travel expenses, Mass. Fair Share v. Law Enforcement Assistance Admin., 776
F.2d 1066, 1069-70 (D.C. Cir. 1985); Conservation Force v. Salazar, 2013 WL 66210, at *13
(D.D.C. Jan. 7, 2013); and (6) electronic legal research fees, El-Fadl, 163 F.R.D. at 391
(declining to tax as costs fees paid to online legal research services because it is more properly
considered part of an attorney’s fee). The Court concludes that the same result is appropriate
with respect to the professional services plaintiff used to prepare a demonstrative video for trial,
as that expense is not specifically covered by § 1920.
Additionally, it is well-established that expert witness fees are not included in “costs.”
The Supreme Court recently explained that § 1920 “does not authorize an award of any
additional expert fees” beyond the standard travel reimbursement and per diem authorized for all
witnesses under 28 U.S.C. § 1821. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S.
291, 297-98 (2006); see also Zdunek, 100 F.R.D. at 693 (same). The Court therefore finds that
plaintiff is entitled to recover the $40 per diem for expert Richard Ray’s appearance at the
preliminary injunction hearing and the $40 per diem for expert Dennis Cokley’s appearance at
his deposition, but not any additional costs for their time. 9
Plaintiff insists that he may recover costs beyond those specifically enumerated in § 1920
because the Rehabilitation Act incorporates the remedies available under the Civil Rights Act of
1964, which permits recovery of expert fees and other reasonable litigation expenses. (Mot. at
5.) Although plaintiff is correct that the Rehabilitation Act incorporates those remedies in some
instances, it does not do so in this case. Specifically, 29 U.S.C. § 794a incorporates Title VI
9
Although a prevailing party can ordinarily recover travel expenses for his witnesses, those costs
are only available upon production of “[a] receipt or other evidence of actual costs,” see, e.g., 28
U.S.C. §§ 1821(c)(1), (3), which plaintiff has not provided.
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remedies for all employment discrimination cases brought under § 791 of the Rehabilitation Act,
see § 794a(a)(1), but only for certain claims brought under § 794. Section 794 prohibits
discrimination under (1) “any program or activity receiving Federal financial assistance” or (2)
“any program or activity conducted by any Executive agency or by the United States Postal
Service.” However, § 794a(a)(2) only incorporates Title VI remedies for the first category of
claims—those that are brought against a “recipient of Federal assistance or Federal provider of
such assistance.” It does not incorporate those remedies for claims brought against federal
agencies conducting programs or activities. Indeed, the Supreme Court itself noted this
distinction in a different context, where it observed that although § 794a(a)(1) plainly waives
sovereign immunity for any complaint brought under § 791, § 794a(a)(2) is not so “far-
reaching,” and only covers “‘Federal provider[s]’ of financial assistance.” See Lane v. Pena, 518
U.S. 187, 192-93 (1996). Thus, plaintiff cannot rely on the Civil Rights Act’s remedies to
recover expert fees or any other costs that are not expressly provided for in 28 U.S.C. § 1920. 10
Accordingly, the Court awards plaintiff costs for expenses related to filing fees,
photocopying, deposition transcripts, interpreter services, and the per diem rates for his expert
witnesses. Plaintiff’s receipts for those expenses total $2,744.43. However, the Court will
reduce those costs by 40%, in line with the reduction made to attorney’s fees. See A.S. v. Dist. of
Columbia, 842 F. Supp. 2d 40, 49 (D.D.C. 2012) (reducing both attorney’s fees and costs by
50% “based on plaintiffs’ level of success”); Dickens v. Friendship-Edison P.C.S., 724 F. Supp.
2d 113, 122 (D.D.C. 2010) (same). Thus, the Court awards plaintiff $1,646.66 in costs.
10
Plaintiff also seeks to recover expert witness fees under 42 U.S.C. § 1988. (Mot. at 15.)
However, that provision authorizes an award of expert fees “in any action or proceeding to
enforce a provision of section 1981 or 1981a.” § 1988(c). Because plaintiff’s Rehabilitation Act
claims “do not fall under either section,” the Court may not rely on that section to award plaintiff
expert fees. See Mason v. Me. Dep’t of Corr., 387 F. Supp. 2d 57, 64-65 (D. Me. 2005).
17
CONCLUSION
For the foregoing reasons, plaintiff’s Motion for Award of Attorney’s Fees and Costs is
granted in part and denied in part. A separate Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: April 29, 2013
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