Ashraf-Hassan v. Embassy of France in the United States ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAIMA ASHRAF-HASSAN,
Plaintiff,
v. Civil Action No. 11-805 (JEB)
EMBASSY OF FRANCE IN THE
UNITED STATES,
Defendant.
MEMORANDUM OPINION
Saima Ashraf-Hassan, a French citizen of Pakistani origin, recently obtained a favorable
verdict after a bench trial in her workplace-discrimination suit against the Embassy of France,
her former employer. She now seeks attorney fees and costs totaling $271,786.15, which
accounts for many – but not all – of the hours and expenses her attorneys incurred over five years
of litigation. The Embassy opposes those fees, both because it believes the verdict to be in error
and because it views the fees as unwarranted for various reasons. Concluding that Plaintiff has
met her burden of proving that the fees and costs are reasonable, the Court will award the full
sum requested.
I. Background
Because the fees cover numerous stages of this protracted suit, the relevant background
facts largely consist of its procedural history. The Court will also identify the different attorneys
who represented Plaintiff throughout the litigation, as their hours and rates form the basis of her
fee calculation.
1
A. Procedural History
Ashraf-Hassan is a Muslim woman who was born in Pakistan, moved to France as a
child, and obtained French citizenship in the 1990s. See Ashraf-Hassan v. Embassy of France
(Ashraf-Hassan VI), No. 11-805, 2016 WL 2626833, at *2 (D.D.C. May 6, 2016) (reciting the
Court’s oral findings of fact). In the early 2000s, she obtained a job at the French Embassy in
Washington, D.C., and arrived in the United States on an A-2 visa in October of 2001 to begin
working as an intern. Id. After her probationary period ended in February 2002, she was hired
as a local employee and became an intern-program coordinator under the supervision of Chantal
Manes, the head of the Embassy’s cultural program. Id. According to Plaintiff, over the next
four years, she suffered ill treatment and harassment from her supervisors. Late in 2006, the
Embassy informed her that her contract would not be renewed, requiring her departure at the end
of January 2007. Id. at *4.
Over four years later, in April 2011, Plaintiff brought suit in this court, alleging a throng
of wrongful-termination and hostile-work-environment claims under Title VII – on the basis of
race, religion, national origin, pregnancy, or retaliation for her engaging in protected activity.
See generally Am. Compl. The Embassy subsequently filed a motion to dismiss, which the
Court granted as to four counts (pertaining to Plaintiff’s termination) but denied as to the
remaining four counts (which raised hostile-work-environment claims). See Ashraf-Hassan v.
Embassy of France (Ashraf-Hassan I), 878 F. Supp. 2d 164, 175 (D.D.C. 2012).
After several months of discovery, the Embassy moved for summary judgment in the
summer of 2013, arguing that it was entitled to prevail as a matter of law given the record
adduced by the parties. See ECF No. 32. It claimed that Plaintiff had failed to develop sufficient
proof of a hostile work environment and that its various affirmative defenses entitled it to
2
judgment. See Ashraf-Hassan v. Embassy of France (Ashraf-Hassan II), 999 F. Supp. 2d 106,
113-17 (D.D.C. 2013). The Court denied that motion in full in November 2013, id. at 117, and
scheduled a bench trial for mid-April 2014. See Minute Order of 12/17/2013. The Embassy
moved for reconsideration, see ECF No. 38, which the Court also denied on January 16, 2014.
See ECF No. 45 (Ashraf-Hassan III).
Having not achieved success on the substance of the dispute, the Embassy next took a
different tack, filing an eve-of-trial motion to dismiss in which it argued – for the first time – that
the Court lacked subject-matter jurisdiction under the Foreign Sovereign Immunities Act. See
ECF No. 51. The Court promptly denied that motion, concluding that the case fell “squarely
within multiple exceptions to the [FSIA].” Ashraf-Hassan v. Embassy of France (Ashraf-Hassan
IV), 40 F. Supp. 3d 94, 97 (D.D.C. 2014). Defendant then filed an interlocutory appeal with the
D.C. Circuit, see ECF No. 59 (Notice of Appeal), which affirmed this Court’s opinion in a
summary unpublished order on May 1, 2015, approximately one year after the Embassy filed the
appeal. See Ashraf-Hassan v. Embassy of France (Ashraf-Hassan V), 610 F. App’x 3 (D.C. Cir.
2015).
After the mandate issued, this Court held a three-day bench trial in January 2016, which
proceeded apace notwithstanding an ongoing snowstorm. See Minute Order of 1/25/16. On
February 11, 2016, the Court reconvened the parties to deliver its oral verdict. See Minute Order
of 2/11/16. It provided its findings of fact and conclusions of law, ultimately holding that
Plaintiff had succeeded on her hostile-work-environment claim. See Verdict Trans. at 15:8-17.
It next considered her damages claim, awarding her $30,000. See id. at 18:19-20. The Court
then addressed Plaintiff’s counsel on the issue of attorney fees, pointedly requesting that they file
a “careful and thoughtful” petition. Id. at 19:1.
3
Shortly after the verdict was announced, the Embassy filed two post-trial motions, one
seeking to amend the judgment and add new findings under Federal Rule of Civil Procedure
52(b), see ECF No. 86, and a separate “Motion for Estoppel and, in the Alternative, Motion for a
New Trial.” ECF No. 87. A central focus of both was Defendant’s position that Plaintiff had
misled the Court by providing inconsistent testimony on the date of one event that the Court
concluded was a contributing factor in her hostile work environment. See Ashraf-Hassan VI,
2016 WL 2626833, at *3. The Court ultimately denied the motions, concluding that the
Embassy had identified no “clear errors in [its] factual findings,” and that “no ‘manifest
injustice’ or prejudice was worked on the Embassy as a result of Plaintiff’s testimonial
inconsistency,” which had already been taken into account by the Court in its factual findings.
See id. at *1, *7. All matters of substance having been decided, the Court is free to move on to
fees.
B. Ashraf-Hassan’s Representation
Plaintiff has been represented by counsel since the filing of her Complaint. On March 5,
2011, she contacted the Law Firm of Gary M. Gilbert and Associates, P.C. (GMGA) and signed
a deferred-fee retainer agreement. See Mot. for Fees, Exh. E at Bates Nos. 1-4 (Initial Retainer
Agreement). From 2011 to 2015, Plaintiff was represented primarily by two attorneys: Zachary
Wright, a newly barred GMGA associate, and Ari Wilkenfeld, a more seasoned practitioner. See
Mot., Exh. H (Affidavit of Zachary L. Wright); id., Exh. F (Affidavit of Ari Wilkenfeld).
Another then-GMGA attorney, Rosalind Herendeen, also contributed to Plaintiff’s
representation. See Mot. at 4.
In 2013, Wilkenfeld and Herendeen left GMGA to start the Wilkenfeld Law Group,
which subsequently became Wilkenfeld Herendeen Law. See Wilkenfeld Aff., ¶ 4; Mot., Exh. J
4
(Affidavit of Rosalind Herendeen), ¶ 4. The new firm joined GMGA as co-counsel for Ashraf-
Hassan in February 2014. See Mot., Exh. E at Bates Nos. 14-20 (Co-Counsel Agreement) at 20.
After the Embassy brought its interlocutory appeal, Gary M. Gilbert, GMGA’s principal,
assigned one of his then-junior associates, Katherine Atkinson (formerly Katherine Atkinson
Dave), to argue the case before the D.C. Circuit, with assistance from GMGA senior counsel
Valencia Rainey. See Mot., Exh. G (Affidavit of Katherine R. Atkinson), ¶ 16; Mot., Exh. I
(Affidavit of Gary M. Gilbert), ¶ 10. Prior to oral argument, Wright left GMGA, and Atkinson
took over as co-lead counsel with Wilkenfeld. See Atkinson Aff., ¶¶ 16-18. Atkinson then took
the helm in preparing for trial in 2016, with Wilkenfeld and, to a lesser extent, Gilbert providing
supervisory assistance. See id., ¶¶ 16-17; Gilbert Aff., ¶ 9; Wilkenfeld Aff., ¶ 10. These three
attorneys were present throughout the trial. See Mot. at 19. Atkinson also took the lead in all
post-trial work, which included Court-directed briefing on a question of law, responding to
Defendant’s two post-trial motions, and drafting the fee petition. Id. at 19-20.
II. Analysis
Title VII grants federal courts discretion to award “the prevailing party . . . a reasonable
attorney’s fee . . . as part of the costs . . . .” 42 U.S.C. § 2000e-5(k). In determining whether to
award fees and what amount is appropriate under the statute, the Court must make two inquiries.
First is to determine whether the party seeking fees is “the prevailing party” and is thus eligible
to receive fees. If so, the next question is whether the fee sought is reasonable. A “reasonable”
fee is one that is “sufficient to induce a capable attorney to undertake the representation of a
meritorious civil rights case,” Perdue v. Kenny A., 559 U.S. 542, 552 (2010), “but that does not
produce windfalls to attorneys.” Blum v. Stenson, 465 U.S. 886, 897 (1984). Defendant argues
both that Ashraf-Hassan is not – or rather, should not be – the prevailing party, and that at least
5
some of the fees sought are not reasonable. The Court will address each objection in turn and
will then turn to the issue of costs.
A. Fee Eligibility
The prevailing-party inquiry is, at least in this case, a straightforward one. “[A]
‘prevailing party’ is one who has been awarded some relief by the court . . . .” Buckhannon Bd.
& Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001).
Defendant does not dispute this standard, nor that Ashraf-Hassan emerged as the victor in the
Court’s February 2016 verdict, obtaining a judgment that the Embassy violated her Title VII
rights and receiving $30,000 in damages. See Ashraf-Hassan VI, 2016 WL 2626833, at *5. In
other words, it does not contest that, assuming the Court’s verdict remains undisturbed, Plaintiff
is a prevailing party.
Instead, the Embassy reverts to its oft-repeated tactic of attacking the substance of the
Court’s judgment, arguing that Plaintiff misled the Court about certain dates, and that the Court
must necessarily disavow its initial factual findings, enter new findings comporting with the
Embassy’s version of events, and vacate the verdict. See Opp. at 1-2. Once that happens,
Defendant reasons, “the Court should find the Embassy, not Ashraf, to be the prevailing party
and permit the Embassy to file a fee petition.” Id. at 2.
Like Tantalus stooping to drink from an ever-receding pool, Defendant remains
perennially optimistic that this argument will eventually succeed, despite the Court’s reiterated
recognition of its futility. The Court has already addressed and rejected the assertion that
Ashraf-Hassan misled it and has accordingly denied Defendant’s post-trial motions, see Ashraf-
Hassan VI, 2016 WL 2626833, at *8, *11, as well as its motion for sanctions. See ECF No. 103
(Order Denying Mot. for Sanctions). The Court declines to wade back into those waters once
6
more. With the original verdict for the Plaintiff still intact, there is no question that Ashraf-
Hassan is a “prevailing party” here. See Select Milk Producers, Inc. v. Johanns, 400 F.3d 939,
954 (D.C. Cir. 2005) (“[P]revailing party means a party in whose favor a judgment is rendered,
regardless of the amount of damages awarded.”) (citations, internal quotation marks, and
alterations omitted). She is thus eligible for fees under Title VII.
B. Reasonableness of Fee
The next question is whether the fee amount sought – here, $207,789.10 to GMGA (not
$207,807.10 as mistranscribed by Plaintiff) and $52,281.00 to Wilkenfeld Herendeen – is
reasonable. “The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The product of those two numbers yields what
is known as the “lodestar” amount. See Bd. of Trustees of Hotel & Rest. Employees Local 25 v.
JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998).
The D.C. Circuit has set forth a uniform “three-part analysis” for evaluating the
reasonableness of fee requests. See Eley v. Dist. of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015)
(evaluating fees under the Individuals with Disabilities Education Act); Salazar v. Dist. of
Columbia, 809 F.3d 58, 61 (D.C. Cir. 2015) (applying framework to § 1983 fee request). “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, 809 F.3d at 61
(quoting Eley, 793 F.3d at 100). The burden lies with the fee-seeking party to “‘document[] the
appropriate hours[] and justify[] the reasonableness of the rates,’ with the opposing party
remaining ‘free to rebut [the] fee claim.’” Id. (quoting Covington v. Dist. of Columbia, 57 F.3d
1101, 1107-08 (D.C. Cir. 1995)).
7
The Court will first discuss the question of rates generally and will then determine
whether the rates should reflect the price of services when incurred, or whether, as requested by
Plaintiff here, Defendant should compensate her counsel for any delays by applying current
prevailing rates. It will then address the number of hours billed and conclude with an
examination of the Embassy’s various challenges to the fee request.
1. Rates
“Whether an hourly rate is reasonable turns on three sub-elements: (1) ‘the attorney[’s]
billing practices,’ (2) ‘the attorney[’s] skill, experience, and reputation’ and (3) ‘the prevailing
market rates in the relevant community.’” Eley, 793 F.3d at 100 (quoting Covington, 57 F.3d at
1107). Surprisingly, Defendant does not attack any of these foundational elements, but because
the burden lies with Plaintiff to justify the rate, the Court must nonetheless determine for itself
whether she has done so. It will begin with the third element and then address the first two
together.
The rates sought here mirror those listed in the 2015-2016 District of Columbia U.S.
Attorney’s Fee Matrix, which provides prevailing hourly rates for D.C. attorneys based on years
of experience. This fee matrix was originally compiled by the government in the early 1980s in
a Title VII and Equal Pay Act case, Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371
(D.D.C. 1983), which is why it is now known as the Laffey Matrix. As the D.C. Circuit
explained in Eley, the original Laffey Matrix spawned a variety of competing matrices that
purport to establish prevailing rates. See 793 F.3d at 101. It is sufficient for the Court’s
purposes here to note that of the two potentially relevant Laffey matrices – the USAO Laffey
Matrix and the Legal Services Index Laffey Matrix – Plaintiff relies on the former, which is the
8
lower of the two. See id. at 101-02 & n.4 (explaining methodological differences between
USAO and LSI rates).
As Plaintiff’s counsel attest in the affidavits attached to the fee Motion, “[T]he hourly
rates sought here are the same hourly rates charged to clients” – i.e., rates consistent with, and in
some cases lower than, the USAO Laffey rates. See Mot. at 8; see generally Exhs. F-J. Several
of the affidavits – including two from attorneys unaffiliated with Plaintiffs’ counsel – also
explain that the USAO Laffey rates represent a reasonable, if conservative, estimate of prevailing
rates in the D.C. area for similar services. See, e.g., Gilbert Aff., ¶ 13; Mot., Exh. K (Declaration
of Debra S. Katz), ¶¶ 9, 12-16; id., Exh. L (Affidavit of Kristen Alden), ¶ 17 (“[T]he rate
structure identified in the [current USAO] ‘Laffey Matrix’ reflects the Market Rate and is very
reasonable for attorneys who handle employment discrimination cases in the Washington, D.C.
area.”). The Court concludes that the attached affidavits and explanations provide adequate
justification for using the USAO Laffey Matrix to set Plaintiff’s attorneys’ rates. See, e.g.,
Hansson v. Norton, 411 F.3d 231, 236 (D.C. Cir. 2005) (agreeing that “the ‘reasonable hourly
rate’ [in a Title VII case] is guided by the Laffey matrix prepared by the U.S. Attorney’s
Office”).
These rates are also consistent with the attorneys’ historical billing practices and take into
consideration counsel’s varying skill, experience, and reputation. The attached affidavits all
affirm a consistent practice of using and recovering USAO Laffey rates (or, in the case of
attorneys Wilkenfeld and Herendeen, a slightly lower rate). See Wilkenfeld Aff., ¶¶ 7-9;
Atkinson Aff., ¶ 14; Wright Aff., ¶¶ 7-8; Gilbert Aff., ¶ 14; Herendeen Aff., ¶ 6. The affidavits
also detail each attorney’s work history, experience, and customary billing rates, which helps to
both situate them in the various “experience” categories provided in the matrix – e.g., “2-3
9
years,” “4-5 years,” “6-7 years” – and to confirm that these rates represent what they customarily
charge their clients. See Mot., Exh. D (2015-2016 USAO Laffey Matrix) at 1; see also
Wilkenfeld Aff., ¶¶ 2, 4, 7; Atkinson Aff., ¶¶ 1-8, 15; Wright Aff., ¶¶ 2-8; Gilbert Aff., ¶¶ 2-6;
Herendeen Aff., ¶¶ 2-6. Finally, all of the attorneys involved work at law firms with an
established reputation in the field of employment law. The affidavits provide additional details
concerning each individual’s particular skills and expertise in the field, confirming that the
USAO Laffey rates need not be adjusted downward to account for any deficit in skill or
experience.
Having established that Plaintiff may obtain USAO Laffey rates, a related question is
what to do about any delays in payment. “[I]n Title VII cases like this one, attorneys are often
not paid until long after services are rendered, and ‘payment today for services rendered long in
the past deprives the eventual recipient of the value of the use of the money in the meantime,
which use . . . is valuable.’” West v. Potter, 717 F.3d 1030, 1034 (D.C. Cir. 2013) (quoting
Copeland v. Marshall, 641 F.2d 880, 893 (D.C. Cir. 1980)). Where compensating attorneys for
such a delay “is necessary to provide a reasonable fee, it may be made ‘either by basing the
award on current rates or by adjusting the fee based on historical rates to reflect its present
value.’” Id. (quoting Perdue, 559 U.S. at 556 (internal quotation marks omitted)); see also
Missouri v. Jenkins, 491 U.S. 274, 283 (1989) (“Clearly, compensation received several years
after the services were rendered—as it frequently is in complex civil rights litigation—is not
equivalent to the same dollar amount received reasonably promptly as the legal services are
performed . . . .”).
Following this logic, although counsel’s work spanned five years, Plaintiff asks the Court
to apply only those rates reflected in the current 2015-2016 USAO Laffey Matrix. See Mot. at
10
12 (“Plaintiff seeks calculation of the fees incurred at the prevailing market rate in place at the
time this Petition is being filed, rather than the historic hourly rates initially charged.”). Paying
attorneys at current rates is certainly one permissible method of compensating for delay, as is
“adding interest to the historic rate so that the amount paid today reflects the approximate value
of the historical rates charged at the time services were rendered.” West, 717 F.3d at 1034
(citing 42 U.S.C. § 2000e–16(d), which makes interest available in Title VII litigation). Indeed,
Defendant seems to agree. See Opp. at 7 n.6 (“The Court has the discretion to apply either the
historical or the current hourly rates under the Laffey Matrix.”).
The Court concurs with Plaintiff that compensation for delay is warranted here,
particularly given the Embassy’s unsuccessful and, in this Court’s opinion, frivolous appeal on
the issue of sovereign immunity. See Verdict Trans. 19:14-18 (“I advised [counsel for
Defendant] that” his immunity argument “seemed a frivolous position of his.”); accord Ashraf-
Hassan IV, 40 F. Supp. 3d at 97 (“Defendant may delay these proceedings, but it may not evade
trial by means of this transparent ploy.”). That detour alone resulted in a fourteen-month delay,
with another seven months tacked on at the end to account for rescheduling a trial date
acceptable to the parties and the Court. See Minute Order of 8/17/15 (setting bench trial for
January 2016). In short, litigation delays starting from Spring 2014 onward are almost entirely
attributable to Defendant, meaning that delay-related compensation is warranted here. The Court
will also grant Plaintiff’s request to use current USAO Laffey rates “[i]n lieu of seeking interest”
as the method of accounting for these delays. See Mot. at 12.
2. Hours
Moving from rates to the other component of the lodestar figure – hours – Plaintiff must
also “document[] the appropriate hours” claimed by counsel. Covington, 57 F.3d at 1107.
11
Satisfactory documentation in this circuit consists of “contemporaneous time records of hours
worked . . . 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) (per curiam).
Plaintiff’s billing records are demonstrably adequate. She includes with her fee
application a detailed log of hours billed, which includes the date, billing attorney’s name,
duration (in 10-minute intervals), and a reasonably detailed description of services performed.
See Mot., Exh. A (Invoice for District Court Fees); id., Exh. B (Invoice for Appellate Fees).
Defendant argues that the record is “reconstructed,” protesting that “Ashraf was billed on a
monthly basis,” but that “the bills . . . attached to the Petition apparently were not the bills she
received.” Opp. at 10. The Court sees no flaw in Plaintiff’s presentation of the records. In any
event, to the extent Defendant is concerned that the records are not “contemporaneous,” the
invoices reflect daily and hourly logging of time. See also Wilkenfeld Aff., ¶ 8 (“All
attorneys . . . record time on a daily basis, describing the services performed and indicating the
time spent on each task.”).
The quantity of hours is also reasonable. Notably, in an effort to reduce the fee amount,
Plaintiff’s counsel “regularly ‘no charged’ duplicative or unnecessary time, . . . review[ing] the
over five years of billing entries to delete or ‘no charge’ additional entries with the benefit of
hind-sight and in response to the Court’s instructions during the verdict” to submit a careful and
thoughtful fee request. See Mot. at 1-2. Indeed, the invoices reflect large numbers of entries that
counsel have not sought as part of their fee award – an amount that, according to Plaintiff’s
calculation, totals $237,802.30, which does not include other entries that have been omitted from
the invoices. See id. at 2. Exemplary of Plaintiff’s caution in seeking fees is its decision to bill
12
for only 1.2 hours of Gilbert’s time, even though he sat through the entire trial and spent upwards
of 50 hours on this matter. See District Court Invoice at 1; Appeal Invoice at 1.
With one limited exception discussed infra, the Embassy does not argue that the hours
spent litigating the case are unreasonable. In so doing, they have effectively “conceded . . . the
reasonableness of the hours claimed,” Covington, 57 F.3d at 1106, although the Court is
independently satisfied that the hours sought reasonably and fairly reflect the work that
Plaintiff’s counsel performed in securing a favorable outcome for their client.
3. Defendant’s Objections
As the Court has presaged, Defendant’s Opposition to the fee Motion raises few direct
objections pertaining to how Plaintiff calculated and substantiated her fee request. It does not,
for instance, argue that reliance on the USAO Laffey Matrix for rates is improper, that Plaintiff’s
counsel improperly billed for any given task, or that the Court cannot augment the rates to
account for delayed compensation. Instead, it uses its Opposition brief to once again impugn
Plaintiff’s honesty and make yet another futile attack on the validity of the verdict. The Court
will take each of these objections in turn, concluding that none warrants a reduction in the
amount of fees to be awarded.
The Embassy’s first convoluted argument is as follows. Plaintiff’s counsel did not
request Ashraf-Hassan’s administrative EEOC file until discovery was underway. See Opp. at 3.
In Defendant’s view, “Had they requested [that file] prior to filing the complaint, they would
have discovered that one of their client’s most damaging allegations” – namely, that she was
lectured by a superior on the need to use contraception – “might have been unfounded.” Id.(emphasis added). Apparently, this failure “significantly reduc[ed] the probability of
settlement,” id. at 2, although Defendant does not explain why that is so, nor does it suggest how
13
such alleged failure should influence the fee award. Unwilling to fashion coherence where none
exists, the Court concludes this objection is meritless.
Defendant next argues that because Plaintiff “ma[de] . . . public” certain “grave . . .
allegation[s]” – by filing a Complaint – it was justified in refusing to settle. Id. at 3-4. Once
again, its logic is hard to follow. The Embassy seems to suggest that some of her allegations
were tolerable, see Opp. at 3-4 (noting that it “conceded from the start” that her supervisor’s
calling her a “Pashtun” “might have created the perception of discrimination”), but that others,
such as the contraception lecture, or that she was referred to as a dog, see Compl., ¶ 2, were
simply beyond the pale. See Opp. at 4. As a result, “settlement became very remote” because
the Embassy had to make “clear to everyone that these grave allegations never occurred.” Id.
Regardless of what motivated the Embassy to eschew settlement, it has no bearing here.
Ashraf-Hassan alleged violations of Title VII, and she succeeded on her hostile-work-
environment claim. Indeed, this Court found that some of the allegations the Embassy views as
“grave” did, in fact, occur. See Verdict Trans. at 7:1-8, 10:1-10, 11:2-4, 16:14-24 (describing
events when Plaintiff was referred to as a “terrorist,” learned her supervisor hated Indians and
Pakistanis, and was otherwise insulted on the basis of race, religion, or national origin). That she
“likely exaggerated some events or construed them to be more offensive than they were” does
not undermine her ultimate success or her entitlement to fees. See Verdict Trans. at 5:18-20. In
other words, even if the Embassy were willing to settle – which it insists it would not – Plaintiff
was justified in continuing to litigate.
Defendant next argues that Plaintiff’s counsel failed to tease out various testimonial
inconsistencies that apparently undermined Ashraf-Hassan’s credibility. See Opp. at 5
(“Ashraf’s attorneys did not engage in any meaningful efforts to prevent [her] exaggerations.”);
14
id. at 6 (attorneys did not spend any time trying “to sort out [Plaintiff’s alleged]
inconsistencies”). This is the same argument Defendant made in motions to amend the judgment
and for a new trial, see ECF Nos. 86, 87, and the same argument it made in seeking sanctions
against Plaintiff’s counsel. See ECF No. 97. The Court found that position unconvincing then,
see Ashraf-Hassan VI, 2016 WL 2626833, at *6-7; ECF No. 103 (Order Denying Mot. for
Sanctions), just as it does now. For similar reasons, the Court will not entertain Defendant’s
fanciful speculation that because Plaintiff’s counsel omitted certain time entries from the
attached invoices, those omissions “might . . . reveal time Ashraf’s attorneys spent investigating
her inconsisten[cies].” Opp. at 9. This is pure guesswork, untethered to reality and wholly
unrelated to whether the fee claimed here is reasonable.
Taking an even more aggressive (and undiplomatic) approach, the Embassy next argues
that Plaintiff’s counsel violated various D.C. ethics rules – including that they ostensibly failed to
show their client a purported “settlement offer” made by Defendant. See Opp. at 4 n.3. The
offer it refers to is an email from Embassy counsel to Wilkenfeld and Wright that (1) rejects
Plaintiff’s proposed settlement “because [the Embassy] wants to make sure that Ms. Ashraf does
not receive any benefit from a law suit she should have known, and maybe knew, to be without
merits,” and (2) states that “the French government would not object to pay a modest amount for
your [i.e., counsel’s] time investigating this case because i[t] feels that you were also a victim of
Ms. Ashraf’s actions.” Opp., Exh. 2 (Dec. 11, 2012, Email). To put a finer point on it, the email
explains that Defendant would “settle this case for a modest sum of money on the condition that
all of it be paid to you [the attorneys] and no part could be distributed to her or used to pay any
expenses that she is legally responsible for.” Id. (emphasis added).
15
The Embassy believes that Ashraf-Hassan was never shown the email because there was
no log of such a discussion in the billing records attached to her fee Motion. See Opp. at 4 n.3.
This failure, it believes, violates D.C. Rule of Professional Conduct 1.4(c). Defendant, however,
never articulates whether such violation should vitiate all fees, merit a reduction in amount, or
yield some other outcome. In any event, the basis for this argument is unsound. The Court
assumes that the Embassy believes that had counsel shown Ashraf-Hassan the email, she likely
would have settled. This strains credulity on its face, as an offer that included a zero recovery
for Plaintiff had no chance of acceptance. But the Embassy’s position is all the more galling
given that it also insists that the very same “offer created” a “conflict of interest” between
Plaintiff and her counsel. Id. In other words, Defendant asserts that its take-the-money-and-run
proposal was both a good-faith settlement offer to Plaintiff and an irresistible enticement to her
counsel that created a conflict between the two. It fails to recognize, however, that these two
arguments cancel each other out. If the Embassy did, in fact, make the offer in the hopes that it
would conflict her attorneys off of the case, it cannot plausibly claim to have made Plaintiff an
offer in good faith. Defendant will not obtain a reduction in fees on this basis.
At long last, Defendant makes a not-wholly specious argument that attorney time spent
on certain unsuccessful motions should be excluded. First is the “time spent on the briefing,
research, and legal argument of the unlawful termination claims.” Opp. at 10. Second is billing
for several pre-trial motions made by Plaintiff that the Court ultimately denied. Id. at 11. To
begin, “[f]ees for time spent on claims that ultimately were unsuccessful should be excluded only
when the claims are ‘distinctly different’ in all respects, both legal and factual, from plaintiff’s
successful claims.” Williams v. First Gov’t Mortgage & Inv’rs Corp., 225 F.3d 738, 746 (D.C.
Cir. 2000) (internal citation and quotation marks omitted). Plaintiff’s unlawful-termination
16
claims, which this Court dismissed early on, grew out of the same set of facts as her hostile-
work-environment claim, which suggests they are not so “distinctly different” as to render
unavailable any fees pertaining to the former. In any event, the vast majority of fees claimed
here have nothing to do with the termination claims, which, as noted, vanished from the litigation
in its incipient stages. Rather, the bulk of fees begin in discovery and relate exclusively to the
claim on which Plaintiff succeeded.
The Court will similarly decline to reduce the fee award on account of Plaintiff’s lack of
success in certain pre-trial motions. “[A] litigant ‘who is unsuccessful at a stage of litigation that
was a necessary step to her ultimate victory is entitled to attorney’s fees even for the
unsuccessful stage.’” Air Transp. Ass’n of Canada v. FAA, 156 F.3d 1329, 1335 (D.C. Cir.
1998) (quoting Cabrales v. Cty. of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991)). After all,
it is a rare litigant indeed “who doesn’t lose some skirmishes on the way to winning the war.
Lawsuits usually involve many reasonably disputed issues and a lawyer who takes on only those
battles he is certain of winning is probably not serving his client vigorously enough; losing is
part of winning.” Cabrales, 935 F.2d at 1053. The Court concludes that the hours spent on these
motions were not “excessive, redundant or otherwise unnecessary,” Hensley, 461 U.S. at 434,
and thus may form a part of Plaintiff’s reasonable fee award.
C. Costs
The final issue is that of costs, which Plaintiff seeks to the tune of $11,716.05. See
District Court Invoice at Bates Nos. 3 (summary) & 89-95 (line items); Appeal Invoice at Bates
Nos. 2 (summary) & 16-17 (line items). The Court has reviewed the costs billed and concludes
17
that they are reasonable and appropriate. With no objection from Defendant about any of them,
they will be awarded in full.
III. Conclusion
For these reasons, the Court will grant Plaintiff’s Motion for Fees. A separate Order so
stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: May 24, 2016
18