Craig v. Lew

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
B.B. CRAIG, :
:
Plaintiff, : Civil Action No.: 14-1340 (RC)
:
v. : Re Document Nos.: 110, 120, 121, 129
:
STEVEN MNUCHIN, :
Secretary of the Treasury :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART PLAINTIFF’S MOTIONS FOR COMPLETE EQUITABLE RELIEF AND
COMPLETE ATTORNEYS’ FEES; DENYING PLAINTIFF’S MOTIONS FOR PARTIAL EQUITABLE
RELIEF AND INTERIM ATTORNEYS’ FEES
I. INTRODUCTION
Plaintiff B.B. Craig, an official at the United States Mint, sued United States Secretary of
the Treasury Steven Mnuchin, in his official capacity, under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e–2000e-17 (“Title VII”). 1 Following a trial, the jury returned a verdict
in favor of Mr. Craig, awarding him $5,485 in compensatory damages. With the verdict now in,
Mr. Craig seeks injunctive relief and attorneys’ fees. As explained below, the Court concludes
that Mr. Craig is entitled to both forms of relief, though not to the extent he requests.
Accordingly, the Court grants in part and denies in part Mr. Craig’s motions.
1
While Secretary Mnuchin is technically the Defendant, this Court will hereafter refer to
“the government” or “the Mint” when discussing the Defendant’s arguments.
II. FACTUAL AND PROCEDURAL BACKGROUND 2
Mr. Craig has worked for the United States Mint, as a member of the United States
Treasury’s Senior Executive Service (“SES”), since 2008. 3 See Am. Compl. ¶ 12, ECF No. 22.
From 2008 to early 2013, he was the Associate Director of the Mint’s Sales and Marketing
Division (“A/D SAM”), having failed to receive his preferred position of Associate Director of
the Mint’s Manufacturing Division (“A/D Manufacturing”) in 2008. See Dep. Tr. B.B. Craig
(“Craig Dep.”) at 24:25–26:1, 27:4–30:1, 128:1–4, ECF No. 51-3; Summ. J. Opp’n Ex. 4, ECF
No. 41-6. As A/D SAM, Mr. Craig had authority to speak and act on behalf of the Mint, and he
had significant supervisory authority over approximately ninety-four full-time-equivalent
employees allotted to the SAM Division. See Decl. of B.B. Craig (“Craig Decl.”) ¶¶ 3–4, ECF
No. 40-2.
In 2012, Mr. Craig failed to meet the Mint’s expectations on two critical SAM projects.
Summ. J. Opp’n Ex. 11 at 4, ECF No. 41-11; Summ. J. Opp’n Ex. 24 at 5, ECF No. 41-19
(noting Mr. Crag’s “lack of constructive resolution of and leadership on the Order Management
System project, and the failure to produce an effective comprehensive marketing plan). These
performance issues prompted the Mint’s Chief Administrative Officer, Beverly Babers, to begin
2
This Court’s most recent opinion in this matter, Craig v. Mnuchin (Craig II), 278 F.
Supp. 3d 42 (D.D.C. 2017), provides additional background detail.
3
The SES is the federal government’s executive management core. Office of Personnel
Management, About the SES, available at http://www.opm.gov/ses/about_ses/index.asp. SES
members manage key government programs, divisions, offices, and functions within federal
agencies such as the Mint. See generally Mint Organizational Charts, Def.’s Mot. Summ. J.
(“Summ. J. Mot.”) Ex. 2 (designating SES positions as “ES” positions), ECF No. 34-2; U.S.
Office of Personnel Management, Guide to the SES, Summ. J. Mot. Ex. 3, ECF No. 34-3. SES
members are governed differently than other federal employees and can, at the government’s
discretion, be reassigned to an SES position within an agency for which they are qualified or
“detailed” to a position with unclassified duties within the agency or to another agency for up to
240 days. Pl.’s Opp’n Def.’s Mot. Summ. J. (“Summ. J. Opp’n”), Ex. 16 at 9, 11–12, ECF No
41-14.
2
seeking a position in the Mint that would be a “better fit” for Mr. Craig. Id.; Craig Decl. ¶ 9.
Around this time, Mr. Craig filed an informal complaint with the Equal Employment
Opportunity Commission (an “EEO complaint”), alleging that certain individuals at the Mint
discriminated against him based on his race and gender. Id. ¶ 10; Pls. Petition Award
Reasonable Attorneys’ Fees & Costs (“Fee Mot.”) Att. D, ECF No. 121-9.
Ultimately, the “better fit” that Ms. Babers identified was a detail to a position called
“Executive Lead” which, unlike Mr. Craig's previous position, had unclassified duties and no
supervisory authority. 4 Craig Dep. at 128:1–7, 180:8–13; Craig Decl. ¶¶ 13–14; Summ. J. Opp’n
Ex. 6, ECF No. 41-7. Mr. Craig remained in the Executive Lead position until 2014, when he
was reassigned to a permanent SES position as Associate Director of Environment, Safety, and
Health (“A/D ESH”), having again failed to receive an appointment to the A/D Manufacturing
position. Craig Dep. at 125:15–128:6; Craig Decl. ¶ 14. Mr. Craig has received performance
bonuses and excellent performance reviews since assuming the A/D ESH position, where he
remains to this day. See Def’s Opp’n Partial Equitable Relief (“Partial Inj. Opp’n”) Ex. A, ECF
No. 112-1.
Mr. Craig brought this action in 2014 and filed an amended complaint in 2015, alleging
that the Mint violated Title VII by (1) failing to place Mr. Craig in the A/D Manufacturing
position in 2008; (2) moving Mr. Craig out of the A/D SAM position in 2012; (3) giving Mr.
Craig a sub-par performance review in 2012; (4) assigning Mr. Craig to the Executive Lead
position for approximately 18 months, from 2012 to 2014; (5) declining to reassign Mr. Craig to
the acting or permanent A/D Manufacturing or A/D SAM positions in 2014; and (6) reassigning
4
Ms. Babers reported to the Mint’s Deputy Director, Richard Peterson, who allegedly
had a hand in Mr. Craig’s reassignment to the Executive Lead position. See Am. Compl. ¶ 40;
Craig Decl. ¶¶ 13–14; Dep. Richard Peterson at 149:16–150:13, ECF No. 50-2.
3
Mr. Craig to his current position, the A/D ESH. See generally Am. Compl. These claims were
narrowed over several rounds of briefing. First, the Court granted the government’s pre-
discovery motion for summary judgment on Mr. Craig’s claim that his non-selection to the A/D
Manufacturing position in 2008 was discriminatory. Craig v. Lew (Craig I), 109 F. Supp. 3d
268, 284 (D.D.C. 2015). Next, the Court granted the government’s post-discovery motion for
summary judgment on Mr. Craig’s claims that his sub-par performance review in 2012, his
removal from the A/D SAM position in 2012, and the Mint’s refusal to reassign him to the A/D
SAM position in 2014 were discriminatory or retaliatory; and Mr. Craig’s claims that his
placement in the Executive Lead position from 2012 to 2014, his assignment to the A/D ESH
position in 2014, and his non-selection to the A/D Manufacturing position in 2014 were
discriminatory. Craig II, 278 F. Supp. 3d at 59, 65, 69, 72, 76.
Finally, the case went to trial on Mr. Craig’s claims that (1) his placement in the
Executive Lead position from 2012 to 2014; (2) his assignment to the A/D ESH position in 2014;
and (3) his non-selection to the A/D Manufacturing position in 2014 were retaliatory, in violation
of Title VII. Of these three claims that went to the jury, the jury found for Mr. Craig only on his
claim that the Mint retaliated against him by detailing him to the role of Executive Lead, and it
awarded Mr. Craig $5,485 in compensatory damages. Jury Verdict, ECF No. 99. In 2018 the
Mint received a new permanent Director, a position that had been unfilled since 2011. Pls. Mot.
Award Partial Equitable Relief (“Partial Inj. Mot.”) at 4–5, ECF No. 110.
Shortly after the trial, Mr. Craig filed a motion for partial injunctive relief. See generally
Partial Inj. Mot. After the parties were unable to settle during mediation on injunctive relief and
attorneys’ fees, the Court ordered Mr. Craig to file motions for complete injunctive relief and
complete attorneys’ fees and costs. See Minute Order (Aug. 1, 2018). Mr. Craig dutifully filed
4
those motions, which are now, along with his earlier motion for partial injunctive relief and his
later motion for interim attorneys’ fees, ripe for the Court’s consideration. See Partial Inj. Mot.;
Pls. Mot. Complete Award Equitable Relief (“Inj. Mot.”), ECF No. 120; Fee Mot., ECF No. 121;
Pls. Mot. Interim Award Reasonable Attorneys’ Fees (“Fee Mot. II”), ECF No. 129. 5
III. LEGAL STANDARDS
A. Equitable Relief
“[O]ne of the central purposes of Title VII is ‘to make persons whole for injuries suffered
on account of unlawful employment discrimination.’” Franks v. Bowman Transp. Co., Inc., 424
U.S. 747, 763 (1976) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)).
Accordingly, Title VII expressly provides for a wide range of remedies:
If the court finds that the [defendant] has intentionally engaged in . . . an unlawful
employment practice charged in the complaint, the court may enjoin the [defendant]
from engaging in such unlawful employment practice, and order such affirmative
action as may be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees, with or without back pay . . . or any other
equitable relief as the court deems appropriate.
42 U.S.C. § 2000e-5(g)(1).
In considering what remedy is appropriate, the Court “must strive to grant ‘the most
complete relief possible.’” Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989) (quoting
Franks, 424 U.S. at 764). In other words, the Court's goal is to restore the plaintiffs, as nearly as
possible, to the circumstances they “would have occupied if the wrong had not been committed.”
Id. (internal quotation marks omitted) (quoting Albemarle Paper, 422 U.S. at 418–19). In
5
When referencing these motions, their accompanying memoranda of points and
authorities, and their related opposition and reply briefs, the Court cites to the page numbers
automatically generated by ECF.
5
fashioning a remedy which satisfies the objectives of Title VII, the district court is vested with
“considerable discretion.” Id.; see also Hayes v. Shalala, 933 F. Supp. 21, 25 (D.D.C. 1996).
B. Attorneys’ Fees
Under Title VII, the Court is authorized, in its discretion, to award “the prevailing party .
. . a reasonable attorney’s fee (including expert fees) as part of the costs.” 42 U.S.C. § 2000e-
5(k). Generally, “[a] reasonable fee is one that is ‘adequate to attract competent counsel, but that
does not produce windfalls to attorneys.’” West v. Potter, 717 F.3d 1030, 1033 (D.C. Cir. 2013)
(internal quotation marks omitted) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)). In
awarding reasonable attorneys’ fees, a court must conduct a two-step inquiry. Craig v. District
of Columbia, 197 F. Supp. 3d 268, 274–75 (D.D.C. 2016) (citing Does I, II, III v. District of
Columbia., 448 F. Supp. 2d 137, 140 (D.D.C. 2006)).
First, the court must determine whether the plaintiff is the prevailing party. Id. at 275. A
plaintiff is considered a prevailing party, entitled to attorneys’ fees, “if [he] succeed[s] on any
significant issue in litigation which achieves some of the benefit the [plaintiff] sought in bringing
suit.” Harvey v. Mohammed, 951 F. Supp. 2d 47, 53 (D.D.C. 2013) (internal quotation marks
and alterations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A litigant
need not succeed at every step of the litigation in order to be a prevailing party under Title VII;
“a litigant who is unsuccessful at a stage of litigation that was a necessary step to [his] ultimate
victory is entitled to attorney’s fees even for the unsuccessful stage.” Craig, 197 F. Supp. 3d at
275 (quoting Ashraf-Hassan v. Embassy of Fr. in the U.S., 189 F. Supp. 3d 48, 54–55 (D.D.C.
2016)).
Second, the court must determine whether the plaintiff’s fee request is reasonable. Does
I, II, III, 448 F. Supp. 2d at 140. In analyzing the plaintiff’s fee request, “[a] court must: (1)
6
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)). In determining whether the hours expended on the successful litigation are
reasonable, the court must exclude hours that are “excessive, redundant, or otherwise
unnecessary.” Craig, 197 F. Supp. 3d at 275 (quoting Does I, II, III, 448 F. Supp. 2d at 140).
And in determining whether the proposed hourly rate is reasonable, the court must consider three
sub-elements: “(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 v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995)).
Generally, “there is a ‘strong presumption that the fee yielded by the now-ubiquitous lodestar
method, which bases fees on the prevailing market rates in the relevant community, is
reasonable.’” Makray v. Perez, 159 F. Supp. 3d 25, 30 (D.D.C. 2016) (quoting West, 717 F.3d at
1034). However, if a plaintiff “achieved only partial or limited success,” the court may conclude
that “the product of hours reasonably expended on the litigation as a whole times a reasonable
hourly rate may be an excessive amount,” and it may accordingly reduce the award. Hensley,
461 U.S. at 436.
Ultimately, the plaintiff bears the burden of establishing both his entitlement to attorneys’
fees and the reasonableness of the fees he seeks. See Eley, 793 F.3d at 100; Turner v. D.C. Bd.
of Elections & Ethics, 354 F.3d 890, 895 (D.C. Cir. 2004); Covington, 57 F.3d at 1107. Once the
plaintiff meets this initial burden, a presumption arises that the number of hours billed and the
rates at which they are billed are reasonable. See Covington, 57 F.3d at 1110–11; Makray, 159
F. Supp. 3d at 30; Jackson v. District of Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). At
7
that point, the burden shifts to the opposing party to “provide specific contrary evidence tending
to show that a lower rate would be appropriate.” Covington, 57 F.3d at 1109–10 (quoting Nat’l
Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982)).
IV. ANALYSIS
As described above, the jury concluded that the Mint retaliated against Mr. Craig when it
assigned him to the Executive Lead position. Mr. Craig’s rights having been vindicated at trial,
he is a prevailing party seeking injunctive relief and attorneys’ fees. The Court will address each
form of relief in turn, concluding that Mr. Craig is entitled to a portion of the injunctive relief
sought and a portion of the attorneys’ fees sought. Accordingly, it grants each of Mr. Craig’s
motions in part.
A. Injunctive Relief
The Court first addresses Mr. Craig’s motions for injunctive relief. Again, under 42
U.S.C. § 2000e-5(g)(1), the Court may grant “equitable relief” that “the court deems
appropriate” to restore Mr. Craig, as nearly as possible, to the circumstances he would have
occupied but for the Mint’s retaliation. Lander, 888 F.2d at 156; see also Berger v. Iron Workers
Reinforced Rodmen, 170 F.3d 1111, 1119 (D.C. Cir. 1999) (“[A] court must, as nearly as
possible, recreate the conditions and relationships that would have been, had there been no
unlawful discrimination.” (citation and internal quotation marks omitted)). In furtherance of this
objective, “[d]uring the remedial stage of the proceedings, the district court may make factual
findings to determine appropriate ‘make whole’ relief under § 2000e-5(g)(1), as long as the
findings are consistent with the jury verdict.” Porter v. Natsios, 414 F.3d 13, 21 (D.C. Cir.
2005) (internal citation omitted).
8
Mr. Craig seeks wide ranging injunctive relief designed to replicate the career path that
he believes he would have followed, had he not been placed in the Executive Lead position. He
asks the Court to (1) require the government to install Mr. Craig in a “dual hat” role; (2) enjoin
the government from detailing Mr. Craig to a position with unclassified duties for more than 240
days; (3) declare that Mr. Craig’s civil rights were violated by his placement in the Executive
Lead position; and (4) require the government take certain actions with respect to Mr. Craig’s
personnel file and future employment inquiries. Inj. Mot. at 1–2. As explained below, the Court
concludes that Mr. Craig is not entitled to a dual hat role or declaratory relief, but that he is
entitled to certain personnel file-related relief. Accordingly, the Court grants Mr. Craig’s motion
in part.
1. Assignment to a Dual Hat Role
Mr. Craig argues that to restore him to the position he would have occupied but for the
Mint’s retaliation, this Court must require the Mint to install Mr. Craig in a dual hat role in which
he encumbers his current Associate Director position and another SES-level position
simultaneously. As noted, “Title VII envisioned that making a victim whole would include his
reinstatement to the position he would have held but for the discrimination.” Jean-Baptiste v.
District of Columbia, 958 F. Supp. 2d 37, 42 (D.D.C. 2013) (quoting Lander, 888 F.2d at 156).
However, while a court must strive to “recreate the conditions and relationships that would have
been” in the absence of the defendant’s discrimination or retaliation against the plaintiff, Berger,
170 F.3d at 1119 (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977)),
“equitable relief is not automatic and the court must assess the appropriateness of the equitable
relief sought in light of the injuries found,” Hayes, 933 F. Supp. at 27. “Where the jury has not
actually decided an issue or where the basis for the jury's decision cannot be determined, the
9
court is not bound.” Id. (citing Blake v. Hall, 668 F.2d 52, 54 (1st Cir. 1981), cert. denied, 456
U.S. 983 (1982)). Accordingly, a court need not recreate a plaintiff’s hypothetical career path, if
the jury’s verdict does not dictate that the plaintiff be placed on that path.
Mr. Craig contends that “the path to career advancement for a member of the SES is
through indefinite details in acting positions, usually while simultaneously assigned to his or her
permanent position,” Partial Inj. Mot. at 6, and that “other Associate Directors who did not
engage in protected EEO activity” received these “career enhancing assignments.” Id. at 14.
Mr. Craig thus asks the Court to require the government to install him as acting A/D of
Manufacturing, acting A/D SAM, now titled Director of Numismatics and Bullion, acting Chief
Administrative Officer, or an “equivalent acting position” for eighteen months, in addition to his
current position as A/D ESH. Inj. Mot. at 1. The government counters that such relief is
inappropriate because (1) the jury’s verdict does not dictate that Mr. Craig be detailed—in
addition to his current A/D ESH position—to another Associate Director position; and (2) Mr.
Craig “has presented no evidence that would support a claim that he would have been ‘dual-
hatted’ in any other role, were it not for the Mint detailing him to the Executive Lead role.”
Partial Inj. Opp’n at 8, ECF No. 112. The government’s argument is well-taken.
Courts in this District occasionally grant retroactive promotions grounded in plaintiffs’
“career path” theories, applying the principle that a “remedial decree which considers career
progress improperly denied is well within this Court's discretion under Title VII.” Brown v.
Marsh, 713 F. Supp. 20, 22 (D.D.C. 1989) (citing Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 399 (1982); Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 762 (1976)). In
determining whether this type of relief is appropriate, a court must consider whether the jury’s
verdict is based on the plaintiff’s failure to obtain a specific position or promotion to which he or
10
she was entitled in the absence of discrimination or retaliation. See Porter, 414 F.3d at 22–23
(affirming the district court’s decision to deny the plaintiff retroactive placement when the jury’s
verdict did not establish that the plaintiff would have received that placement in the absence of
discrimination). The court must also look to “the career path of the man [or woman] promoted in
[the plaintiff’s] stead” and any record evidence suggesting that the plaintiff was likely to
progress at a similar or faster rate. Brown, 713 F. Supp. at 22.
For instance, in Brown, another court in this District determined that a plaintiff who had
been refused a GS-9 position in the United States Army for discriminatory reasons was entitled
to equitable relief mirroring the career path of the individual chosen for that position, who had
subsequently advanced to a GS-13 position. Id. a 21–22. The record indicated that the plaintiff
was a qualified, “perhaps . . . exceptional employee” with ambitious goals—as indicated by his
personnel reviews, application history, and his superiors’ statements—such that merely placing
the plaintiff in the position he was initially refused “seem[ed] clearly inequitable.” Id. at 22–23.
The court accordingly concluded that the plaintiff was entitled to back pay and retroactive
promotions corresponding to the career path of the individual promoted in the plaintiff’s stead.
Id. at 24.
Similarly, in Allen v. Barram, another court in this District held that the plaintiffs—who
had been discriminatorily denied GS-7 jobs—were entitled to retroactive promotions and
trainings to mirror the career paths of the individuals selected in their stead. 215 F. Supp. 2d
184, 189–91 (D.D.C. 2002). The court concluded that because “the incumbents [could not]
claim some expertise that [the] plaintiffs lack[ed]”, because the plaintiffs had “excellent records”
and their “supervisors thought highly” of them, and because nine of the eleven incumbents
11
achieved substantial career advancement from the positions that the plaintiffs were improperly
denied, retroactive promotion was appropriate. Id. at 191–92.
On the other hand, courts have been reluctant to grant retroactive promotions where a
plaintiff is unable to sufficiently demonstrate that he would have achieved the promotions
sought, but for the discrimination or retaliation. In Lloyd v. Holder, for instance, another court in
this District refused to grant a retroactive promotion where the record indicated only that “if [the
plaintiff] had had the opportunities which were denied him, [he] might have been a more
attractive candidate for promotion.” No. 97-1287, 2010 WL 1999657at *3 (D.D.C. May 18,
2010). The court found it significant that the plaintiff provided no evidence that he was a
competitive candidate for the promotion sought—he “was an average employee”—and the career
path of the individual that the plaintiff sought to imitate “was not comparable” to the plaintiff’s.
Id. at *3–4; see also Jean-Baptiste, 958 F. Supp. 2d at 42–43 (denying the plaintiff’s request for
a retroactive promotion where the plaintiff relied on “vague,” “unduly speculative” assertions in
support of that request); Fogg v. Gonzales, 407 F. Supp. 2d 79, 91 n.6 (D.D.C. 2005) (holding
that the plaintiff was not entitled to a retroactive promotion where such a promotion was “overly
speculative” and the court was “not persuaded that [the plaintiff] would have been among the
relatively few [individuals] selected to advance to the . . . level” sought) aff'd in part and rev'd on
other grounds, 492 F.3d 447 (D.C. Cir. 2007).
Here, Mr. Craig has not sufficiently demonstrated that the jury’s verdict requires that he
be placed in a dual hat role. The jury determined that Mr. Craig’s “placement and treatment . . .
in the role of Executive Lead was retaliatory.” Jury Verdict at 1. In making this determination,
as Mr. Craig notes, Reply Mem. Supp. Partial Inj. Mot. (“Partial Inj. Reply”) at 2, ECF No. 114,
the jury was instructed to determine whether Mr. Craig’s placement “significantly affect[ed] [Mr.
12
Craig’s] supervisory authority, programmatic responsibilities, or future employment
opportunities or career prospects.” Jury Preamble at 18 (emphasis added), ECF No. 98. Put
another way, the jury determined that Mr. Craig’s retaliatory detail from an Associate Director
position to the Executive Lead position harmed him by depriving him of certain authority and
responsibilities that he enjoyed as an Associate Director, or by depriving him of career
opportunities that he would have otherwise received as an Associate Director. The jury did not
determine, as Mr. Craig would have this Court conclude, that Mr. Craig was retaliated against
because he was deprived of “career-enhancing” dual hat details or assignments, but rather
because he was deprived of an Associate Director role overseeing a single Mint unit. 6 See
Partial Inj. Mot. at 14; Partial Inj. Reply at 4. Mr. Craig points to no evidence, and the record
does not indicate, that the jury’s verdict depended on Mr. Craig’s entitlement to a dual hat
assignment. 7
However, just because the jury did not consider whether Mr. Craig would have received a
dual hat role but for the Mint’s retaliation does not mean that the Court cannot grant such relief.
As Mr. Craig notes, Partial Inj. Reply at 8–9, “a district court which endeavors to fashion a
remedy for discrimination cannot confine itself to narrow or technical measures which, while
perhaps bearing a logical connection to the plaintiff's complaint, fail to reflect the whole of the
6
The government concedes that Mr. Craig is at least entitled to retroactive assignment to
an Associate Director role. Partial Inj. Opp’n at 10. It proposes to alter Mr. Craig’s personnel
file to reflect that he was the A/D SAM until his 2014 reassignment to the role of A/D ESH. Id.
That proposal is discussed in greater detail below.
7
Even if the jury determined that Mr. Craig’s career prospects were harmed by his
Executive Lead detail, the jury could have reached this conclusion merely because it determined
that Mr. Craig was assigned to a position with inferior responsibilities to an Associate Director
position, and therefore that Mr. Craig would be considered an inferior candidate for future Mint
promotion. Such a conclusion would not require the jury to determine that Mr. Craig would have
received additional career enhancing assignments during the retaliation period.
13
plaintiff's injury.” Brown, 713 F. Supp. at 22. In attempting to “recreate the conditions and
relationships that would have been” in the absence of the Mint’s retaliation against Mr. Craig,
Berger, 170 F.3d at 1119 (quoting Teamsters, 431 U.S. at 372), the Court may look beyond the
jury’s verdict to place Mr. Craig on the career path he would have followed had he remained in
an Associate Director role. That said, while the Court may “engage in some speculation” in
granting equitable relief, Mr. Craig’s assertion that he would have received a dual hat assignment
but for the Mint’s retaliation is overly speculative. Barbour v. Merrill, 48 F.3d 1270, 1280 (D.C.
Cir. 1995).
Mr. Craig argues that because certain SES members—specifically David Croft, Marc
Landry, and Jon Cameron—received dual hat Mint assignments while Mr. Craig was assigned to
the Executive Lead position, Mr. Craig would have received a dual hat assignment if he
remained in an Associate Director position. Partial Inj. Mot. at 10–13. However, Mr. Craig fails
to provide evidence that those individuals were similarly situated to him, other than through their
common SES membership. 8 The record indicates that those individuals occupied different Mint
roles than Mr. Craig, had different levels of experience, and had different skill sets. For instance,
both Mr. Croft and Mr. Landry spent several years managing the Mint’s Denver and Philadelphia
manufacturing facilities, respectively, before their stints as A/D Manufacturing; experience that
Mr. Craig lacked. See Organizational Announcement at 1, ECF No. 110-16; 2012–2016 Mint
Organizational Charts at 1, ECF No. 110-22. Similarly, Mr. Cameron had decades of managerial
8
Mr. Craig devotes a portion of the briefing on this issue to the assertion that, like Mr.
Craig’s rocky tenure as A/D SAM, these individuals did not perfectly execute their assignments,
and therefore were not distinguishable on performance grounds from Mr. Craig. See Partial Inj.
Mot. at 7, 11–12 (discussing Mr. Landry’s alleged “monumental performance failure” as the
Mint’s Philadelphia Plant Manager and Mr. Cameron’s alleged performance issues at the Bureau
of Engraving and Printing). This evidence, however, does not show that Mr. Craig’s career path
would have mirrored Mr. Landry’s path and Mr. Cameron’s path but for the Mint’s retaliation.
14
and financial experience in the United States Federal Reserve before moving to the Bureau of
Engraving and Printing, and then the Mint, where he occupied different roles than Mr. Craig. 9
See Dep. of Jon Cameron at 22:20–33:12, ECF No. 112-5. These individuals’ paths are therefore
“not helpful in projecting what [Mr. Craig’s] career path would have been absent unlawful
retaliation.” Lloyd, 2010 WL 1999657, at *3; see also Barbour, 48 F.3d at 1278 (declining to
award a Title VII plaintiff back pay based on the salary of the individual hired in the plaintiff’s
stead, because that individual’s background justified a higher salary than the plaintiff’s).
Mr. Craig also more generally asserts that dual hat assignments were “afforded to other
Associate Directors who did not engage in protected EEO activity,” and he suggests that these
assignments were given as a matter of course because the Mint had more SES positions to fill
than SES members to fill them. Partial Inj. Mot. at 14–15. However, while the record shows
that certain SES members received dual hat assignments, see Organizational Announcement at 1
(announcing dual hat roles for Mr. Landry and Mr. Croft), and while dual hat assignments may
improve an SES member’s career prospects, Mr. Craig has not provided evidence indicating that
such assignments were issued as a matter of course within the Mint. The record suggests that
some SES members received dual hat assignments, and some did not. See 2012–2016 Mint
Organizational Charts (listing Associate Directors, including Goutam Kundu, Marty Greiner, and
Annie Brown, who do not appear to have occupied dual hat assignments). Therefore, at most,
Mr. Craig has demonstrated that “if he had had the opportunities which were denied him,
[he] might have” received a dual hat assignment. Lloyd, 2010 WL 1999657, at *3. But Mr.
9
The record indicates that Mr. Cameron temporarily held the acting A/D SAM position
after it was vacated by Mr. Craig, but Mr. Cameron’s roles at the Mint otherwise did not overlap
with Mr. Craig’s. See Dep. of Jon Cameron at 43:14–22, ECF No. 51-2; 2012–2016 Mint
Organizational Charts.
15
Craig might instead have followed the same path as the SES members who did not receive dual
hat assignments.
The Court finds the latter scenario more likely because, as Mr. Craig concedes, the only
open Associate Director Mint position in 2012, when Mr. Craig was detailed from A/D SAM to
the Executive Lead, was the A/D Manufacturing position. See Partial Inj. Reply Att. N at 2 n.1,
ECF No. 114-2. Mr. Craig was denied assignment to that position in 2008 and denied
reassignment to that position in 2014; denials that were found to be non-discriminatory and non-
retaliatory. See Craig I, 109 F. Supp. 3d at 284; Craig II, 278 F. Supp. 3d at 76; Jury Verdict.
Mr. Craig provides no evidence to suggest that the Mint would have detailed him into the A/D
Manufacturing role in 2012 in a dual hat capacity, given that the Mint denied his application for
assignment to that role four years earlier and would deny his application for reassignment to the
role two years later. 10 Accordingly, the Court concludes that Mr. Craig’s assertion that he would
have received a dual hat assignment but for the Mint’s retaliation is unduly speculative. 11 While
10
This Court similarly concluded that the Mint’s decision to remove Mr. Craig from the
A/D SAM position in 2012 was not retaliatory or discriminatory. Craig II, 278 F. Supp. 3d at
64–65. Mr. Craig fails to show why the Mint would detail him back into that position, now titled
A/D Numismatics and Bullion, in a dual hat capacity after previously removing him.
11
Mr. Craig appears to be primarily angling for a permanent reassignment or a temporary
detail to the A/D Manufacturing position. As noted, a key qualification that made Mr. Croft and
Mr. Landry suitable for that position was their work managing the Mint’s Denver and
Philadelphia manufacturing facilities, respectively. Partial Inj. Opp’n at 13–15; Dep. Richard
Peterson at 189:9–15. And they continued to manage those facilities while dual hatted into other
Mint positions. Id. Their dual hat roles thus required them to travel between cities. See
Organizational Announcement at 1 (stating that Mr. Croft would remain the Denver Plant
Manager while assuming the Washington, D.C.-based A/D Manufacturing position, and that Mr.
Landry would “continue to split his time between Philadelphia and Washington” while detailed
to the A/D SAM position).
Mr. Craig concedes that he was considered for the Superintendent position at the Mint’s
Denver facility, an SES-level position, but appears to have declined that consideration because
he did not want to relocate from Washington, D.C. Partial Inj. Mot. at 13; EEO Investigative
Affidavit of Lisa Nicholson (“Nicholson Aff.”) at 6, ECF No. 110-18. His apparent refusal to
accept a career enhancing opportunity because he did not want to relocate in some ways makes
16
Mr. Craig may well have received such an assignment had he remained an Associate Director,
and while he may well receive one in the future on his own merit, the Court declines to “interfere
with the policymaking and personnel decisions that rightly belong to public servants” without
stronger record support. 12 Caudle v. District of Columbia, 825 F. Supp. 2d 73, 80 (D.D.C. 2011)
(quoting Jones v. Rivers, 732 F. Supp. 176, 178 (D.D.C. 1990)).
2. Anti-Retaliation Injunction
Mr. Craig also requests that the Mint be enjoined from detailing him to a position with
unclassified duties for more than 240 days. Inj. Mot. at 1. Mr. Craig contends that this anti-
retaliation injunction is necessary to ensure “that he will not be placed at a competitive
disadvantage because of the Mint’s illegal actions.” Id. at 9. The government, on the other hand,
argues that “[n]o basis in fact exists to suggest that such relief is necessary where [the
government] has demonstrated a commitment to a fair assessment of Plaintiff’s contributions and
has awarded Plaintiff for his performance.” Def.’s Opp’n Inj. Mot. (“Inj. Opp’n”) at 8, ECF No.
125. The government again has the better of this argument.
him even more dissimilar from Mr. Croft and Mr. Landry. Mr. Craig does not simply want any
dual hat role, he wants a dual hat role that keeps him in the same city; a role that Mr. Croft and
Mr. Landry do not appear to have been offered, at least during the retaliation period at issue here.
12
The parties allude in their briefing to Mr. Craig’s separate, pending EEO complaint
regarding the Mint’s alleged retaliatory or discriminatory behavior in recently denying Mr. Craig
certain “career enhancing” assignments, including assignments to the Mint’s Chief Financial
Officer and A/D Manufacturing positions. See Oct. 6, 2017 EEO Complaint, ECF No. 112-2;
Inj. Reply at 6. To the extent Mr. Craig is attempting to litigate that complaint before this Court
through his post-trial motions, Partial Inj. Mot. at 7–8; Inj. Reply at 6–7, the Court declines to
address it. Mr. Craig’s complaint in this action did not raise Frank Goulart’s appointment to the
A/D Manufacturing position, nor did it directly raise Mr. Craig’s inability to secure assignment
to the Chief Financial Officer position, and the Court will not consider now whether Mr. Craig is
entitled to those positions outside of the relief necessary to address the jury’s verdict here.
Moreover, Mr. Craig has failed to indicate that he has the type of qualifications necessary for
placement in either the Chief Financial Officer position or the Chief Administrative Officer
position.
17
Absent more specific evidence that Mr. Craig is likely to again face retaliation, restricting
the Mint’s employment decisions going forward is not necessary to address Mr. Craig’s harm.
The Mint officials primarily responsible for the retaliatory decision to detail Mr. Craig to the
Executive Lead position—Ms. Babers and Mr. Peterson—are no longer employed by the Mint.
See 2018 Mint Organizational Charts, Inj. Mot. Att. A, ECF No. 110-2; 2012–2016 Mint
Organizational Charts. 13 The Mint has a new permanent Director, who Mr. Craig acknowledges
is likely to institute more transparent, competitive procedures for filling open SES positions. Inj.
Mot. at 9. And Mr. Craig has received sterling performance reviews and SES performance
bonuses since being reassigned to the A/D ESH position, a reassignment that occurred before
Mr. Craig filed his lawsuit in this Court. See Inj. Opp’n at 8; Partial Inj. Opp’n Ex. A; Summ. J.
Mot. Ex. 41, ECF No. 34-35 (announcing Mr. Craig’s reassignment to the A/D ESH position on
July 31, 2014); Compl. (filed Aug. 6, 2014), ECF No. 1. Mr. Craig has presented no record
evidence to suggest that he will be retaliated against in the future.
Rather than supplying record evidence, Mr. Craig relies extensively on the D.C. Circuit’s
opinion in Bundy v. Jackson and the District Court’s opinion in Jean-Baptiste, but those cases
are factually inapposite. The female plaintiff in Bundy was subjected to a pattern of sexual
harassment by her supervisors as part of a “discriminatory environment”; a pattern of which the
agency’s director was aware. Bundy v. Jackson, 641 F.2d 934, 943–46 (D.C. Cir. 1981). In
remanding the case for the District Court to impose injunctive relief, the Circuit noted that
despite the fact that the plaintiff had not complained of harassment in six years, there was little
certainty that the harassment would not resume “because [the plaintiff’s] agency ha[d] taken no
13
Moreover, Mr. Craig states that the Mint’s acting Deputy Director, Mr. Croft, has been
“supportive and an honest broker for Mr. Craig’s continued advancement in the organization.”
Reply Mem. Supp. Inj. Mot. (“Inj. Reply”) at 7, ECF No. 128; see also Nicholson Aff. at 4.
18
affirmative steps to prevent recurrence of the harassment, and because all the harassing
employees still work[ed] for the agency.” Id. at 946 n.13. Similarly, the plaintiff in Jean-
Baptiste was subjected to a pattern of harassment, and the District of Columbia took no proactive
steps to address the plaintiff’s injury until after the jury rendered a verdict, giving the court
“significant concerns” that the plaintiff could face retaliation after being reinstated to her
previous position. Jean-Baptiste, 958 F. Supp. 2d at 51.
Here, on the other hand, Mr. Craig did not demonstrate that he was subjected to a
systemic discriminatory or retaliatory environment, and he was assigned to a more favorable
position before he filed the action in this Court. 14 As another court in this District stated while
denying a similar request for an anti-retaliation injunction, “[t]he Court will not presume that the
[Mint] will not follow the law and plaintiff has not demonstrated that future violations are
likely.” Hayes, 933 F. Supp. at 27 (citing E.E.O.C. v. General Lines, Inc., 865 F.2d 1555, 1565
(10th Cir. 1989)). Because the Court cannot conclude that there is a “reasonable expectation”
that retaliation will reoccur, the Court declines to enjoin the Mint from detailing Mr. Craig to a
position with unclassified duties for more than 240 days. Bundy, 641 F.2d at 946 n.13; see also
Spencer v. General Elec. Co., 894 F.2d 651, 660 (4th Cir. 1990) (declining to award injunctive
relief to Title VII plaintiff where the action involved “an isolated incident of one supervisor run
14
This conclusion should in no way be read to mean that the Court condones the
extraordinary action taken by the Mint in retaliation for Mr. Craig’s EEO activity. The Mint has
been rightly held to account for that action. However, the extreme nature of the Mint’s action—
creating an Executive Lead role with little to no responsibility and banishing Mr. Craig to that
role—makes that action less likely to occur again, absent record evidence to the contrary. This is
particularly true here, because the individuals responsible for that action are no longer employed
by the Mint. And Mr. Craig’s suggestion that Ms. Babers will have significant influence over
Mint personnel decisions from a Treasury position finds no support in the record. Inj. Reply at
10.
19
amok,” and the supervisor was no longer employed by the defendant) abrogated on other
grounds by Farrar v. Hobby, 506 U.S. 13 (1992). 15
3. Declaratory Relief
Mr. Craig also requests a declaration that the Mint retaliated against him, in violation of
Title VII, by placing him in the Executive Lead position. Inj. Mot. at 1–2, 10. He claims that
such relief is necessary to “ensure that defendant and its officials, management, and agents are
given specific notice of the Mint’s violation of Title VII.” Inj. Reply at 11. However, the jury’s
publicly available verdict already gives clear, specific notice of the Mint’s violation. Jury
Verdict (“[T]he Plaintiff has proved by a preponderance of the evidence that the Defendant’s
placement and treatment of Mr. Craig in the role of Executive Lead was retaliatory.”). 16 “The
jury verdict is sufficient in and of itself to protect plaintiff against future acts of discrimination
and retaliation,” particularly where Mr. Craig has provided no evidence to suggest that
declaratory relief is necessary to clarify the Court’s ruling. Hayes, 933 F. Supp. at 27; see also
Pitrolo v. Cty. of Buncombe, 589 F. App’x 619, 629–30 (4th Cir. 2014) (per curiam) (unreported)
(holding that declaratory relief was inappropriate for a successful Title VII plaintiff where the
declaration would not clarify an issue of law raised by the decision, would not clarify the parties’
post-trial rights, and “would simply reiterate the jury’s verdict”). Accordingly, the Court denies
Mr. Craig’s motion for declaratory relief.
15
This relief is particularly unnecessary where the government’s own pre-existing
policies prevent such a detail. See U.S. Office of Personnel Management, Guide to the SES at
11, Summ. J. Mot. Ex. 3.
16
Mr. Craig’s requested declaration—“that defendant retaliated against plaintiff in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-3, by virtue of its
placement and treatment of plaintiff in the position of Executive Lead starting on December 11,
2012, and continuing through his reassignment to the position of Associate Director of
Environment Safety & Health on August 1, 2014”—does not meaningfully differ from the jury’s
verdict form. Inj. Mot. Proposed Order at 1, ECF No. 120-1.
20
4. Record-Related Injunctive Relief
Finally, Mr. Craig argues for personnel record-related relief. “The federal courts are
empowered to order the expungement of Government records where necessary to vindicate rights
secured by the Constitution or by statute.” Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir.
1975). Such “[e]xpungement of personnel records constitutes equitable relief under Title VII.”
Fogg, 407 F. Supp. 2d at 87 (citing Smith v. Sec’y of the Navy, 659 F.2d 1113, 1114 (D.C. Cir.
1981)). Mr. Craig requests that (1) the Mint be required to expunge any reference to Mr. Craig’s
Executive Lead tenure from its official agency records, such that the records indicate that Mr.
Craig was an Associate Director throughout the retaliation period; (2) for purposes of Mint
personnel decisions, including future reassignments, training, and promotions, the Mint be
required to treat Mr. Craig’s Executive Lead position as an Associate Director-level position
with Associate Director-level responsibilities and authority; and (3) for purposes of external,
employment-related inquiries, the Mint be required to characterize Mr. Craig’s Executive Lead
position as an Associate Director-level position with Associate Director-level responsibilities and
authority. Inj. Mot. at 1–2, 10.
The government asserts that much of Mr. Craig’s requested relief has already been
implemented, but the government’s assertions do not fully address Mr. Craig’s harm and the
government fails to provide record support for those assertions. For instance, the government
claims that it “has never considered [Mr. Craig] as having left the SES, or as having performed
non-SES duties at all relevant times; nor has [it] ever suggested that the Executive Lead role was
not at the SES level.” Inj. Opp’n at 10. However, while the government may not consider the
Executive Lead role to have been a non-SES role, when contemplating future personnel
decisions the government could still consider the Executive Lead role to have been inferior to an
21
Associate Director role, such as A/D SAM. 17 Similarly, while under Treasury policy Mr. Craig
may have been “considered for pay and strength count purposes to [have been] permanently
occupying” the A/D SAM position while detailed to the Executive Lead position, Inj. Opp’n Ex.
E at 4, ECF No. 125-5, the government does not identify a policy requiring the Mint to consider
Mr. Craig to have been the A/D SAM when contemplating future personnel decisions. 18
Furthermore, despite the government’s characterization of Mr. Craig’s request as
“overbroad” and “unduly burdensome,” the parties seem to agree that Mr. Craig’s official
personnel file should be altered to reflect that he occupied an Associate Director-level role
during the retaliation period. See Inj. Mot. at 11; Inj. Opp’n at 11. The government proposes to
expunge the document in Mr. Craig’s electronic Official Personnel File that memorializes Mr.
Craig’s detail to the Executive Lead position—the “Standard Form 52 Initiation of / Request for
Personnel Actions” (“SF-52”)—leaving only documentation suggesting that Mr. Craig occupied
the A/D SAM position through 2014, when he was reassigned to the A/D ESH position. Id. Mr.
Craig argues that his SF-52’s, performance appraisals, and Performance Review Board materials
in his Official Personnel File identifying him as Executive Lead should be expunged and
replaced with documents identifying him as an Associate Director. Inj. Reply at 13. Mr. Craig’s
proposal is better crafted to address his harm because it includes the documents that Mint
officials may consider when making promotion decisions in the future.
17
It is clear from the record and the jury’s verdict that Mr. Craig’s Executive Lead role
was in fact inferior to an Associate Director role in terms of responsibility and authority, despite
both roles’ technical designations as SES-level roles.
18
Moreover, the government’s records from the retaliation period designate Mr. Craig as
the Executive Lead rather than the A/D SAM. See 2013 Mint Ratings, Bonuses and Pay
Adjustments, ECF No. 110-14 at 4 (listing Mr. Craig as “Executive Lead, Long Term
Planning”).
22
Therefore, to “recreate the conditions and relationships that would have been” in the
absence of the Mint’s retaliation against Mr. Craig, Berger, 170 F.3d at 1119 (quoting
Teamsters, 431 U.S. at 372), the Court exercises its equitable powers under Title VII to order the
following personnel record-related relief. First, the Mint must treat Mr. Craig’s Executive Lead
position as an Associate Director-level position, with Associate Director-level responsibilities
and authority, for purposes of both internal personnel decisions and external, employment-
related inquiries. 19 Second, the Mint must alter the SF-52’s, performance appraisals, and
Performance Review Board materials in Mr. Craig’s Official Personnel File so that they identify
Mr. Craig as an Associate Director rather than as an Executive Lead. 20 Such relief is necessary,
because allowing Mr. Craig’s retaliatory detail to influence his future employment prospects
“would be to diverge from the aim of Title VII equitable relief.” Fogg, 407 F. Supp. 2d at 88
(ordering the Title VII defendant to expunge the plaintiff’s discriminatory dismissal from its
employment records); see also Hayes, 933 F. Supp. at 27 (ordering “that [the plaintiff’s]
personnel folder and other relevant Department records be corrected to reflect the jury’s verdict
and the equitable relief provided by the Court”). To ensure that the relief has been properly
19
The government argues that such relief dictates that the Court must “inject itself into
the scripting of employment references.” Inj. Opp’n at 10. Not so. The Court’s decision merely
precludes the Mint from considering Mr. Craig to have occupied the inferior Executive Lead
position, both in its internal deliberations and in its discussions with outside employers. The
Mint has full creative liberty in crafting those discussions in good faith.
20
The parties disagree on whether the records should be altered to state that Mr. Craig
was A/D SAM through 2014, when he was reassigned to the A/D ESH position, see Inj. Opp’n at
11, or whether the records should be backdated to state that Mr. Craig has occupied the A/D ESH
position since 2012, when he was reassigned from the A/D SAM position, see Inj. Reply at 13.
Having considered this disagreement, the Court concludes that Mr. Craig’s records should reflect
that he was the A/D SAM until his reassignment to the A/D ESH position in 2014. This relief is
most logical because A/D SAM was the position from which Mr. Craig was detailed to the
Executive Lead position, and because the A/D ESH position did not exist during Mr. Craig’s
Executive Lead detail.
23
implemented, the Mint shall submit to Mr. Craig an updated version of Mr. Craig’s Official
Personnel File within thirty days from this Memorandum Opinion’s issuance.
B. Attorneys’ Fees
The Court next addresses Mr. Craig’s motion for attorneys’ fees and costs under 42
U.S.C. § 2000e-5(k). As noted, to receive attorneys’ fees, Mr. Craig must establish that he is the
prevailing party, and if he succeeds in establishing this element he must further establish (1) a
reasonable hourly rate for his attorneys’ services; (2) the number of hours reasonably expended
by those attorneys on the litigation; and (3) whether a fee adjustment is warranted. 21 Salazar,
809 F.3d at 61. The parties agree that Mr. Craig is a prevailing party. See Fee Mot. at 39; Def.’s
Opp’n Fee Mot. (“Fee Opp’n”) at 21, ECF No. 130. The parties do not agree, however, on the
hourly rates that should govern the Court’s fee determination or the overall reasonableness of the
fees that Mr. Craig seeks.
Mr. Craig has divided his attorneys’ work into multiple stages, and he has applied
different methodologies to those stages to reach the attorneys’ fees he claims. First, for the
litigation’s administrative stage (the “EEO complaint stage”)—before the complaint was filed in
this Court—Mr. Craig seeks fees for approximately 100 hours of work by his current counsel,
Fee Mot. at 24, billed at the rates dictated by the fee matrix maintained and updated by the
United States Attorney’s Office (“USAO”) for the District of Columbia (the “USAO Matrix”),
Fee Mot. at 1 n.2, reduced by 26.25 percent to account for Mr. Craig’s lack of success, Fee Mot.
at 27.
21
Mr. Craig is represented by the law firm of Seldon Bofinger & Associates, P.C.
(“Seldon Bofinger”). Fee Mot. at 2. The individuals from that firm who have contributed to Mr.
Craig’s action are lead counsel Robert C. Seldon, partner Charlene Bofinger, of counsel Molly
Buie, former associate Lauren Marsh Drabic, and paralegal Kirby York. Fee Mot. at 11–17.
24
Second, for the litigation’s stage covering the filing of Mr. Craig’s complaint in this
Court through trial, Mr. Craig seeks fees for approximately 1,607 hours of attorney work, Fee
Mot. at 8, billed at the rates dictated by the Legal Services Index (“LSI”) Fee Matrix (the
“Salazar/LSI Matrix”), 22 Fee Mot. at 1, then (1) reduced by fifteen percent to account for the
difference between the billing rates reported by law firms and those firms’ actual billing
realization, Fee Mot. at 38 (citing Citizens for Responsibility & Ethics in Wash. (“CREW”) v.
DOJ, 80 F. Supp. 3d 1, 5 (D.D.C. 2015)); (2) reduced to $750,000 to bring the award in line with
other awards recently received by Mr. Craig’s counsel in successful Title VII actions, Fee Mot.
at 9; and (3) reduced by 26.25 percent to account for Mr. Craig’s lack of success, Fee Mot. at 10.
Third, for the litigation’s post-trial stage, Mr. Craig seeks fees as follows. Mr. Craig first
seeks fees for approximately 130 hours spent on equitable relief briefing, Fee Mot. at 24; See
Second Decl. of Robert C. Seldon (“Seldon Decl. II”) ¶ 57, ECF No. 134-1, billed at the USAO
Matrix’s rates, Fee Mot. at 1 n.2, with no additional reduction, Fee Mot. at 2. Mr. Craig next
seeks fees for approximately 150 hours spent on attorneys’ fees briefing, Fee Mot. at 24; Seldon
Decl. II ¶ 57, billed at the USAO Matrix’s rates, Fee Mot. at 1 n.2, with no additional reduction,
Fee Mot. at 2. 23
22
The differences between these two fee matrices will be discussed in detail below.
23
In a Minute Order issued on August 27, 2018, the Court stated that it was “amenable to
granting an interim award of undisputed attorney’s fees.” Minute Order (Aug. 27, 2018)
(emphasis added). In response, the government offered Mr. Craig up to $15,000 as an
undisputed interim fee award. See Fee Reply Att. F, ECF No. 134-3; Fee Reply Att. G, ECF No.
134-4. Mr. Craig’s counsel, apparently unsatisfied with this offer, proceeded to file a disputed
motion for interim attorneys’ fees re-asserting the merits arguments asserted in Mr. Craig’s
motion for attorneys’ fees. See generally Fee Mot.; Fee Mot. II. And Mr. Craig now seeks fees
for time expended by his counsel on this motion. See Fee Reply at 27 (seeking $5,620 for “the
opening portion of the interim fee award litigation”). In light of the Court’s Minute Order and
the government’s lack of stipulation to a specific amount of undisputed fees, the Court holds that
the hours expended on this disputed motion for interim fees were “excessive, redundant, or
otherwise unnecessary,” and it therefore declines to award Mr. Craig fees for those hours.
25
Applying these methodologies, Mr. Craig seeks $43,871.74 in attorneys’ fees for work
done at the EEO complaint stage by his current counsel, $13,141.39 in fees for work done at the
EEO complaint stage by his former counsel, $553,125.00 in fees for work done from the filing of
Mr. Craig’s complaint through trial, $74,660.30 in fees for work done at the equitable relief
stage, and $87,393.30 in fees for work done at the attorneys’ fees stage. Fee Mot. at 2; Reply
Mem. Supp. Fee Mot. (“Fee Reply”) at 27, ECF No. 134; Seldon Decl. II ¶ 57; Proposed Order,
ECF No. 134-5. In total, Mr. Craig seeks $759,050.34 in attorneys’ fees for his current
counsel, 24 $13,141.39 in attorneys’ fees for his former counsel, $11,660.04 in costs, and
$8,853.20 for expert services. Fee Mot. at 2; Fee Reply at 27. The government contends that the
fee award sought by Mr. Craig “is manifestly unreasonable” because (1) the award is based on
“enhanced hourly rates not recognized by this Court as being superior to the [USAO] Matrix
rates currently in effect”; (2) the award incorporates “an excessive number of hours billed”; and
(3) the award does not account for Mr. Craig’s “limited success and the minimal damages award
obtained.” Fee Opp’n at 1. Applying the analytical framework laid out above, the Court agrees
that Mr. Craig’s proposed fees are unreasonably high, and it reduces those fees accordingly.
1. Reasonable Hourly Rate
First, the Court must determine the “reasonable hourly rate” applicable to Mr. Craig’s
attorneys’ services. As noted, in determining whether Mr. Craig’s proposed hourly rate is
reasonable, the Court must consider: (1) his attorneys’ billing practices; (2) his attorneys’ skills,
Hensley, 461 U.S. at 434. Moreover, because the Court is rendering a decision on Mr. Craig’s
motion for complete attorneys’ fees and costs, it will deny Mr. Craig’s motion for interim fees as
moot. However, should the government file post-judgment motions and/or notice an appeal, the
Court will reconsider the appropriateness of awarding interim fees.
24
As noted above, this total does not include Mr. Craig’s fee request for the preparation
of his interim fee motion.
26
experience, and reputation; and (3) the prevailing market rate in Washington, D.C. See Salazar,
809 F.3d at 62. Mr. Craig has submitted a declaration from Mr. Seldon describing in great detail
(1) Mr. Seldon’s extensive experience litigating complex federal cases at his current firm, at the
United States Attorney’s Office, and at other organizations; (2) the skills and experience of the
other Seldon Bofinger attorneys who participated in this action; and (3) Mr. Seldon’s billing
practices. See generally Decl. of Robert C. Seldon (“Seldon Decl. I”), ECF No. 121-2. Based on
these representations, which the government does not dispute, see generally Fee Opp’n, the
Court concludes that Mr. Craig has satisfied his burden of demonstrating his attorneys’ skills,
experience, reputation, and billing practices. See Salazar, 809 F.3d at 62. The Court will
therefore focus on the parties’ evidence regarding the applicable prevailing market rate.
While “[a]scertaining the prevailing market rate is inherently difficult[,]” the “court must
determine the prevailing hourly rate in each particular case with a fair degree of accuracy.”
Taylor v. District of Columbia, 205 F. Supp. 3d 75, 83–84 (D.D.C. 2016) (citations and internal
quotation marks omitted). To demonstrate prevailing market rates, “a fee 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.” Gatore v. DHS, 286 F. Supp. 3d 25, 33
(D.D.C. 2017) (internal quotation marks omitted) (quoting Eley, 793 F.3d at 100). Parties and
courts generally use a fee matrix—which lists Washington, D.C.-based billing rates, categorized
by attorney experience—to simplify the prevailing rate analysis because, as the D.C. Circuit has
noted, “the matrices . . . provide a useful starting point.” 25 Covington, 57 F.3d at 1109.
25
The hourly rates in these matrices are presumptively reasonable only for “complex
federal litigation.” See, e.g., Salazar, 809 F.3d at 64; Flood v. District of Columbia, 172 F. Supp.
3d 197, 210 (D.D.C. 2016). Here, as noted below, the government “acquiesc[es] in the notion
27
Decades of fee litigation in this Circuit have produced competing fee matrices based on
slightly different underlying data and approaches to inflation. Two of these matrices are relevant
here: (1) the USAO Matrix; and (2) the Salazar/LSI Matrix. 26 The USAO Matrix
begins with 2011 average hourly attorney rates derived from ALM Legal
Intelligence’s 2011 Survey of Law Firm Economics. The data provided by this
survey represents actual average billing rates of attorneys from all size firms in the
Washington, DC metropolitan area. . . . [T]he matrix [is] adjusted for inflation using
a Producer Price Index (“PPI”) published by the Bureau of Labor Statistics
(“BLS”). A PPI measures the average change over time in the selling price received
by producers for their products or services. The specific PPI that will be used to
update the USAO Matrix is one that tracks pricing changes in the output of Offices
of Lawyers[.]
Declaration of Dr. Laura A. Malowane (“Malowane Decl.”) ¶¶ 6–7, Fee Opp’n Ex. 7, ECF No.
130-7; 27 see also USAO Attorney’s Fees Matrix: 2015–2019. 28 The Salazar/LSI Matrix
that the litigation at issue qualifies as complex federal litigation (as to which the . . . [m]atrices
apply) . . . [because it] argues that one . . . [m]atrix should apply instead of the other.” Salazar,
809 F.3d at 64.
26
The matrices are sometimes referred to as “Laffey matrices.” This title derives from
the first fee matrix to gain widespread use in this Circuit, which was set out in Laffey v.
Northwest Airlines, Inc., a Title VII class action brought by a class of female flight attendants.
572 F. Supp. 354, 371 (D.D.C. 1983), aff'd in part, rev'd in part on other grounds, 746 F.2d 4
(D.C. Cir. 1984), overruled in part on other grounds, Save Our Cumberland Mountains, Inc.
(“SOCM”) v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) (en banc).
27
This declaration was also submitted on behalf of the defendants in opposition to the
plaintiff’s fee request in DL v. District of Columbia, 267 F. Supp. 3d 55, 70 (D.D.C. 2017). In
that case, another court in this District considered whether the Salazar/LSI Matrix or the USAO
Matrix should govern attorney’s fees in a successful IDEA action. Id. at 69. The court held that
IDEA litigation is complex federal litigation to which one of the fee matrices presumptively
applies, and that “the USAO Matrix is more reliable and unbiased.” Id. Because Dr.
Malowane’s DL declaration addressed the same dispute raised by the parties here, the Court will
consider it a piece of the government’s evidence rebutting Mr. Craig’s evidence in support of the
Salazar/LSI Matrix. See Gatore, 286 F. Supp. 3d at 37–38 (considering evidence submitted on
behalf of the DL plaintiffs in support of the Salazar/LSI Matrix).
28
Available at https://www.justice.gov/usao-dc/file/796471/download. The Court may
take judicial notice of the hourly rates provided in the USAO Matrix because the rates “can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b)(2); see also Bricklayers & Trowel Trades Int’l Pension Fund
28
begins with rates provided in an attorney’s 1989 declaration in [SOCM, 857 F.2d
at 1516] and then proposes to use a national consumer index, the U.S. City Average
of the Consumer Price Index for Legal Services (“CPI-LS”), to update these hourly
billing rates . . . The CPI-LS averages out pricing changes for personal legal
services in several urban centers in the United States. The specific services tracked
by the CPI-LS are noncommercial legal services provided to individual household
consumers: such as wills, uncontested divorces, powers of attorney, and traffic
violations. For each of these pre-defined services, the BLS seeks to measure
changes in the price for the entire procedure (otherwise known as a “flat-fee”).
Malowane Decl. ¶¶ 8–9; see also Salazar/LSI Matrix.29 In other words, the USAO Matrix is
based on 2011 data adjusted for inflation based on a national index of law office pricing, while
the Salazar/LSI Matrix is based on 1989 data adjusted for inflation based on a national index of
noncommercial legal services pricing.
The parties agree that the Court should utilize a fee matrix when determining the
appropriate hourly rate for Mr. Craig’s attorneys. See Fee Mot. at 19–20; Fee Opp’n at 11–12.
They also agree that the Court should apply the USAO Matrix to work done at the litigation’s
administrative and post-trial stages. See Fee Mot. at 21; Fee Opp’n at 11–12. However, they do
not agree on the matrix that should apply to work done from “the inception of the case,” the
complaint, “through trial.” Fee Mot. at 20. Mr. Craig argues that the Court should apply the
v. Conn. Stone Indus., LLC, 318 F. Supp. 3d 328, 335 n.4 (D.D.C. 2018) (taking judicial notice
of the USAO Matrix).
29
Available at http://www.laffeymatrix.com/see.html. Mr. Craig has not supplied a
current version of the Salazar/LSI Matrix as an attachment to any of his briefs or declarations,
nor does he cite to the online version of that matrix. However, as discussed further below, Mr.
Craig has submitted a declaration from a fee expert, Steven Davidson, which includes a table of
the Salazar/LSI Matrix rates that Mr. Craig claims for his counsel. Declaration of Steven K.
Davidson (“Davidson Decl.”) ¶16, ECF No. 121-10. Those rates mirror the rates listed in the
Salazar/LSI Matrix available online, cited above, except that the rates listed for Mr. Seldon, Ms.
Bofinger, and Ms. Buie are one dollar higher in Mr. Davidson’s declaration than in the matrix
available online. The Court will assume that Mr. Davidson intended to list the exact Salazar/LSI
Matrix rates.
29
Salazar/LSI Matrix rates. Id. 30 The government argues that the USAO Matrix is superior to the
Salazar/LSI Matrix, and that it should therefore govern the rates for all work done by Mr.
Craig’s attorneys. Fee Opp’n at 12–13. 31
Recent D.C. Circuit decisions make clear that a plaintiff cannot demonstrate a prevailing
market rate simply by submitting a declaration from the plaintiff’s attorney and referencing a fee
matrix. See Eley, 793 F.3d at 100. Rather, the plaintiff must present additional evidence, such
as “surveys to update [the applicable fee matrix]; affidavits reciting the precise fees that
attorneys with similar qualifications have received from fee-paying clients in comparable cases;
and evidence of recent fees awarded by courts or through settlement to attorneys with
comparable qualifications handling similar cases.” Makray, 159 F. Supp. 3d at 33 (internal
quotation marks omitted) (quoting Eley, 793 F.3d at 101); see also Salazar, 809 F.3d at 64–65
(holding that the plaintiffs sufficiently justified application of the Salazar/LSI Matrix where they
presented 1) an economist’s affidavit explaining the advantages of the Salazar/LSI Matrix; (2)
tables comparing national law firm rates, which demonstrated that the rates provided by
the Salazar/LSI Matrix more closely mirrored national averages; and (3) recent National Law
Journal (“NLJ”) rate surveys showing that, in one of the years for which fees were requested,
high-end rates for law firm partners in Washington, D.C. “far exceeded” the Salazar/LSI Matrix
rates). Should the plaintiff meet his burden, “a defendant may rebut [the] plaintiff's showing
with specific countervailing evidence.” Gatore, 286 F. Supp. 3d at 36 (citing Covington, 57 F.3d
30
Mr. Craig claims the following hourly rates for his counsel under this matrix: Robert
Seldon, $895; Charlene Bofinger, $743; Molly Buie, $743; Lauren Marsh Drabic, $455; and
Kirby York, $202. Davidson Decl. ¶ 16; see also Salazar/LSI Matrix.
31
Under this matrix, Mr. Craig’s counsel would be entitled to the following hourly rates:
Robert Seldon, $602; Charlene Bofinger, $602; Molly Buie, $483; Lauren Marsh Drabic, $352;
and Kirby York, $164. USAO Attorney’s Fees Matrix: 2015–2019.
30
at 1110). Thus, the “issue is whether [Mr. Craig has] submitted sufficient evidence for the . . .
[C]ourt to conclude that the [Salazar/LSI] Matrix applies,” and if so, whether the government
has rebutted that evidence. Salazar, 809 F.3d at 64; see also Gatore, 286 F. Supp. 3d at 36;
Makray, 159 F. Supp. 3d at 39.
In support of Mr. Craig’s position that the Salazar/LSI Matrix best captures the
prevailing rate for Title VII litigation, Mr. Craig presents several pieces of evidence. First, Mr.
Craig submits a declaration from his lead counsel, Mr. Seldon, describing Mr. Seldon’s extensive
complex federal litigation experience, his previous successful Title VII actions, and his billing
practices; comparing his hourly rates to those charged by other private firms engaged in complex
federal litigation; and advocating for the rates dictated by the Salazar/LSI Matrix. See generally
Seldon Decl. I. Second, Mr. Craig submits the declaration of Mr. Davidson, a partner in the law
firm of Steptoe & Johnson LLP, who “is eminently qualified to speak to the reasonable hourly
rates charged in the fully for-profit legal market in Washington, D.C.” Fee Mot. at 20; see
generally Davidson Decl. Third, Mr. Craig references market data, specifically the NLJ’s 2016
and 2017 annual surveys of law firm billing rates, which Mr. Davidson contends “indicates the
reasonableness” of the fees sought. Davidson Decl. ¶¶ 20–21; see also Davidson Decl. Ex. B,
ECF No. 121-10. Fourth, and finally, Mr. Craig directs this Court to the fee awards in Mr.
Seldon’s most recent successful Title VII actions, in which Mr. Seldon was awarded fees or
settled a fee petition based on the Salazar/LSI Matrix. See Makray, 159 F. Supp. 3d at 56;
Roman v. Castro, No. 12-1321 (D.D.C). 32
32
In Roman, the parties reached an attorneys’ fees settlement after trial. See Order
Granting Motion for Entry of Final Judgment, Roman, ECF No. 109 (Jan. 6, 2017). That Order
does not make clear that the parties agreed to apply the Salazar/LSI Matrix to calculate Mr.
Seldon’s fees, nor does it indicate whether the applicable matrix was a point of contention. That
said, Mr. Seldon asserts that the Roman settlement was based on Salazar/LSI Matrix rates and,
31
To rebut Mr. Craig’s evidence, the government presents its own declarations and data.
First, the government submits Dr. Malowane’s declaration asserting the USAO Matrix’s
superiority. See generally Malowane Decl. Second, the government directs this Court to the
government’s amicus brief recently submitted to the D.C. Circuit regarding the advantages of the
USAO Matrix over the Salazar/LSI Matrix. See generally Br. for the United States as Amicus
Curiae Supporting Appellees, DL v. District of Columbia, No. 18-7004 (D.C. Cir. July 20, 2018).
Third, and finally, the government directs this Court to recent decisions in this District holding
that the USAO Matrix, rather than the Salazar/LSI Matrix, most accurately captures the
prevailing market rates for complex federal litigation. Fee Opp’n at 6 n.3.
While Mr. Craig has submitted a “great deal of evidence regarding [the] prevailing
market rates for complex federal litigation” to demonstrate that his requested rates are entitled to
a presumption of reasonableness, Salazar, 809 F.3d at 64 (quoting Covington, 57 F.3d at 1110),
the Court concludes that the government has “rebutted that presumption and shown that the
current USAO Matrix is the more accurate matrix for estimating the prevailing rates for complex
federal litigation in this District.” Gatore, 286 F. Supp. 3d at 37. First, the Court will address
the fundamental differences between the two relevant matrices; second, it will address Mr.
Craig’s showings regarding Mr. Seldon’s entitlement to the Salazar/LSI Matrix rates; and third,
it will address the relevant case law cited by the parties.
a. The USAO Matrix is Superior to the Salazar/LSI Matrix
Both parties submit declarations asserting the superiority of their preferred matrices.
However, Mr. Craig’s declarations—from Mr. Seldon and Mr. Davidson—fail to address why
given that the government has not provided any contrary information, the Court has no reason to
doubt Mr. Seldon’s truthfulness on this point. Seldon Decl. I ¶ 59.
32
the Salazar/LSI Matrix is a more accurate measure of the prevailing market rate than the USAO
Matrix—what Mr. Seldon refers to as the USAO “Laffey Matrix.” Instead, Mr. Seldon
references his previous Salazar/LSI fee awards, Seldon Decl. I ¶ 58–59, he expounds upon the
sophistication required to successfully litigate federal employment cases, id. ¶ 60–61, and he
makes the conclusory assertion that the USAO Matrix “does not account for the expertise,
experience, success of [his] firm, and credibility in federal courts.” Id. ¶ 57. Mr. Seldon fails to
show how the Salazar/LSI Matrix’s methodology better accounts for those factors, aside from
simply listing higher billing rates. Mr. Seldon also criticizes the USAO Matrix for “lumping all
attorneys into categories that are based exclusively on years of practice,” id. ¶ 65, but he fails to
explain why the Salazar/LSI Matrix does not suffer from the same shortcoming.
Mr. Davidson takes a stab at distinguishing the Salazar/LSI Matrix from the USAO
Matrix based on their methodologies, but he focuses on a previous version of the USAO Matrix
rather than the version implemented in 2015. 33 For instance, Mr. Davidson states that the
Salazar/LSI Matrix is “more accurate” than the USAO Laffey Matrix “established in 1982,”
Davidson Decl. ¶ 17, but the USAO Matrix at issue here uses base rates from 2011 and was
established in 2015. When Mr. Davidson does address the USAO Matrix at issue here, he states
only that it “has never been reviewed or accepted by the D.C. Circuit.” Id. ¶ 17 n.2. Like Mr.
Seldon, Mr. Davidson does not attempt to explain why the Salazar/LSI Matrix is a more accurate
measure of the prevailing market rate.
33
The previous USAO Laffey Matrix was based on fees from legal “work done
principally in 1981–82,” and was “adjusted for inflation using the Consumer Price Index for All
Urban Consumers for all items in the Washington, D.C. area.” Nat. Sec. Counselors v. CIA, No.
11-0445, 2017 WL 5633091, at *5 (D.D.C. Nov. 21, 2017) (citation and internal quotation marks
omitted).
33
On the other hand, the government’s declarant—Dr. Malowane—largely echoed by the
government’s DL amicus brief, makes nuanced arguments for why the USAO Matrix is superior
to the Salazar/LSI Matrix. First, the USAO Matrix rates are calculated based on 2011 survey
data, while the Salazar/LSI rates are calculated based on 1989 data. Malowane Decl. ¶ 12. As
Dr. Malowane notes, “[t]he more years [a] matrix continues without updating its original data
source, the more previous years’ forecasting errors may be compounded.” Id. ¶ 12; see also
Gatore, 286 F. Supp. 3d at 38–39 (applying the USAO Matrix because it is based “on far more
current rate data”); DL, 267 F. Supp. 3d at 69 (concluding that the USAO Matrix is “more
reliable and unbiased” than the Salazar/LSI Matrix in part because it is based on more recent
data); Clemente v. FBI, No. 08-1252, 2017 WL 3669617, at *5 (D.D.C. Mar. 24, 2017) (applying
the USAO Matrix rates because that matrix “specifically measures rates in the legal services
industry, and is based on much more current data than the [Salazar/LSI Matrix]”).
Second, the USAO Matrix’s underlying survey data is more reliable because it was
“based on a statistical survey of hundreds of attorneys in the Washington, DC area,” while the
Salazar/LSI Matrix’s data was derived from a single attorney’s informal survey of fee awards,
law firm rates, and NLJ surveys. Malowane Decl. ¶¶ 14–15. Without more information about
how the data underlying the Salazar/LSI Matrix was collected, “there is no way to determine the
reliability of” this data. Id. ¶15. 34 While “the rate survey underlying the USAO Matrix is not
34
That said, the government has not provided the USAO Matrix’s underlying ALM
survey data for the Court to evaluate its reliability. See Malowane Decl. ¶ 6 n.1 (stating that the
“survey is under copyright and available for purchase through the firm ALM Legal
Intelligence”). However. Dr. Malowane asserts that the data used by the USAO Matrix is “based
on a statistical survey of hundreds of attorneys in the Washington, DC area,” and that “for each
billing rate of each experience level there must be a sufficient number of firms and individual
attorneys providing data to determine that rate.” Id. ¶ 14; see also id. ¶ 14 n.7 (further explaining
the ALM’s survey methodology). Mr. Craig provides no such declaration asserting the statistical
rigor underlying the Salazar/LSI Matrix.
34
perfect,” Gatore, 286 F. Supp. 3d at 39, Mr. Craig fails to put forth an argument for why the
Salazar/LSI Matrix is more accurate, given the limitations of its underlying data. See id. at 38
(holding that “the methodology of the 2011 ALM survey underlying the USAO Matrix is more
reliable than the methodology of the rates survey underlying the [Salazar/Laffey Matrix]”); see
also Nat. Sec. Counselors, 2017 WL 5633091, at *18 n.14 (applying the USAO Matrix, but
noting that “the 2011 ALM Survey data includes rates charged by attorneys across all practice
areas, which undermines the degree to which the data fairly reflects rates charged by attorneys
engaged principally in complex federal litigation” (citation and internal quotation marks
omitted)).
Third, the USAO Matrix is more precise because it lists rates for nine categories of
attorney experience, while the Salazar/LSI Matrix lists rates for only five categories. Malowane
Decl. ¶¶ 21–22. Having “more narrowly defined categories of years of experience enables the
USAO Matrix to more accurately capture an individual attorney’s fees.” Id. ¶ 22. Again, Mr.
Craig fails to address this difference between the matrices. The Court thus concludes that the
government has shown that, in the abstract, the USAO Matrix is likely to be a more accurate
indicator of prevailing market rates than the Salazar/LSI Matrix.
b. Mr. Craig’s Additional Evidence is Insufficient to
Justify Application of the Salazar/LSI Matrix
Mr. Craig attempts to bolster his reliance on the Salazar/LSI Matrix by supplying
additional evidence of the current market rates for complex federal litigation, but he fails to show
that “attorneys with similar qualifications have received [Salazar/LSI Matrix rates] from fee-
paying clients in comparable cases.” Makray, 159 F. Supp. 3d at 33. Mr. Seldon asserts that he
has “kept abreast of hourly rates and staffing practices by other firms engaged in complex
litigation,” that he is intimately aware of the billing rates of local large firms because of his
35
previous experience as a partner in one of these firms, and that his billing rates are “far less than
the rates charged by private firms in other fields of private litigation that are no more or less
complex.” Seldon Decl. I ¶¶ 56–68. Similarly, Mr. Davidson states that the rates sought by Mr.
Craig are “well within the reasonable range of rates for a firm undertaking matters of the
complexity of those involved here.” Davidson Decl. ¶ 12.
These declarations lay the foundation for Mr. Craig’s submission of the NLJ’s 2016 and
2017 annual surveys of law firm billing rates, which capture the billing rates of large, national,
corporate law firms in Washington, D.C. See Davidson Decl. Ex. B. As Mr. Davidson notes,
Mr. Seldon’s Salazar/LSI Matrix rate of $895 is within $100 of the average partner rates in the
NLJ’s surveys—$794 in 2016 and $892 in 2017—and it is lower than the high-end partner rates
in those surveys—$945 in 2016 and $1160 in 2017. Davidson Decl. Ex. B. However, the court
is not persuaded that these surveys reflect the prevailing market rate in Washington, D.C. for the
type of complex federal litigation undertaken in this case.
The Court’s skepticism arises primarily from the fact that the data in the NLJ’s surveys is
drawn only from the nation’s largest commercial law firms. 35 See Davidson Decl. Ex. B (listing
rates charged by attorneys at “big law” firms such as Hogan Lovells, Jones Day, and Wilmer
Cutler Pickering Hale & Dorr). First, large commercial firms charge high fees in part because
they have significant overhead, staffing, and rent expenses; the types of costs not faced to the
35
The Court is also skeptical that the rates listed in the surveys reflect the rates actually
collected by the surveyed firms. See CREW, 80 F. Supp. 3d at 5 (noting that “[s]urveys of
‘standard’ billing rates also overlook the fact that clients rarely pay those rates” because “[f]irms
frequently discount their standard rates and, even after discounting, lower the effective rate
further by writing off a portion of their billed hours to reflect attorney inefficiency and other
considerations,” not to mention that “firms do not always collect 100 percent of the fees they
ultimately bill”). The Court has no confidence that the surveyed firms have any incentive to
provide accurate information to be publicized by the NLJ.
36
same extent by smaller for-profit firms in the region. See Gatore, 286 F. Supp. 3d at 41–42
(crediting Dr. Malowane’s assertion that rates are likely to be higher at large law firms because
“small firms generally are able to offer services at lower fees due to lower overhead, and larger
multinational firms may be able to command higher fees due to, among other reasons, an
offering of more services, having a better national or international reputation, having the capacity
to take on bigger or more complicated matters, or being located in a higher rent and higher
profile area of the region” (internal quotation marks omitted)).
Second, despite Mr. Davidson’s assertion that that large corporate firms, such as his firm,
represent defendants in employment cases, and that the hourly rates charged for this work “are
similar to those rates charged by comparably experienced attorneys in other types” of federal
litigation, Davidson Decl. ¶ 14, Mr. Craig has not demonstrated that the large firms included in
the NLJ’s surveys charge their rates in “comparable cases” to Mr. Craig’s action here. Makray,
159 F. Supp. 3d at 33. Other than on a pro bono basis, a firm like Jones Day or Hogan Lovells
has never represented either a plaintiff or an employer in a single-plaintiff employment case
before the undersigned, and Mr. Craig has presented no evidence contradicting this experience.
Those firms’ rate structures do not appear to make sense in most single-plaintiff cases. In
assessing market rates and awarding a fee that is “adequate to attract competent counsel, but that
does not produce windfalls to attorneys,” the Court cannot ignore what the market seems to
reveal in the real world. Makray, 159 F. Supp. 3d at 30 (internal quotation marks omitted)
(quoting West, 717 F.3d at 1033). For this reason, courts in this District have been reluctant to
grant Salazar/LSI rates based solely on data pulled from large commercial firms. See Gatore,
286 F. Supp. 3d at 41–42 (stating that NLJ survey data is “unreliable because [it] heavily rel[ies]
on rates from attorneys at some of the nation's largest law firms,” and listing cases exhibiting
37
similar skepticism); DL, 267 F. Supp. 3d at 70 (stating that “reliance on [NLJ] surveys has been
called into question by other courts,” and listing additional decisions from within this District). 36
Moreover, Dr. Malowane’s declaration includes law firm data that seems to suggest that
the Salazar/LSI Matrix rates are higher than the prevailing market rates in this region. For
instance, Table 2 of Dr. Malowane’s declaration compares the USAO Matrix rates and
Salazar/LSI Matrix rates to the rates compiled by ALM’s 2014 Survey of Law Firm Economics,
and it indicates that the Salazar/LSI Matrix rates are far above the highest ten percent of billing
rates in the ALM survey. See Malowane Decl. ¶ 17 (indicating that in 2014, the average hourly
rate for the highest-billing ten percent of attorneys across the nation with at least thirty-one years
of experience was $570, while the Salazar/LSI Matrix rate for that category was $796 and the
USAO Matrix rate was $568). While it may be true that the data compiled by the ALM surveys,
including the data underlying the USAO Matrix, “includ[es] . . . rates charged by attorneys
across all practice areas,” which “significantly undermines the degree to which [they] fairly
reflect[] rates charged by attorneys engaged principally in complex federal litigation[,]” Makray,
159 F. Supp. 3d at 51; see also EPIC v. DHS, 218 F. Supp. 3d 27, 49 (D.D.C. 2016); Malowane
Decl. ¶ 17 n.11 (noting that the ALM survey includes rates for litigation specialties including
36
While another court in this District stated in Makray that “differentiation [between the
prevailing rates for larger and smaller firms] has been explicitly rejected by the Supreme Court
and the D.C. Circuit,” Makray, 159 F. Supp. 3d at 52 (alteration in original) (citation omitted),
this Court follows Gatore in concluding that the relevant Supreme Court and D.C. Circuit
decisions merely stand for the principle that a Title VII plaintiff’s counsel should be
compensated at the “prevailing market rate” charged by private for-profit firms, regardless of
whether that counsel is a nonprofit counsel who does not typically bill clients, or a private
counsel who typically charges “reduced rates reflecting non-economic goals.” SOCM, 857 F.2d
at 1524; see also Gatore, 286 F. Supp 3d at 42 n.14. While this Court does not believe that
public interest attorneys should be penalized for their lack of a profit motive, it also does not
believe that they should receive the windfall of the rates charged only by the nation’s largest,
full-service commercial law firms, rather than rates more in line with those typically charged by
both large and small private, for-profit firms for complex federal litigation in this market.
38
family law, insured defense, and employee benefits), those surveys at least include a mix of large
and small law firms, and thus are more likely to capture the overall mix of rates in this region.
The Court concludes that the government’s filings have sufficiently rebutted Mr. Craig’s
additional evidence in support of the Salazar/LSI Matrix rates.
c. Recent Case Law Supports Application of the USAO Matrix
Finally, Mr. Craig attempts to provide “evidence of recent fees awarded by courts or
through settlement to attorneys with comparable qualifications handling similar cases.” Makray,
159 F. Supp. 3d at 33 (quoting Eley, 793 F.3d at 101). Mr. Craig ascribes considerable weight to
the fact that Mr. Seldon himself has received Salazar/LSI Matrix rates for successful Title VII
verdicts. See Fee Mot. at 22, 38 (referencing Makray and Roman). While these previous fee
awards certainly indicate that the Salazar/LSI Matrix rates may be reasonable, they do not
represent the slam dunk argument that Mr. Craig apparently believes them to be. See Fee Mot. at
44 (stating that it “would be an impossible task” for the government to rebut Mr. Craig’s
evidence in support of the Salazar/LSI Matrix, in light of Makray and Roman). In the Roman
filings, there is no indication that the government put forth the more recent USAO Matrix as an
alternative to the Salazar/LSI Matrix, and the Makray court did not consider the USAO Matrix.
See Makray, 159 F. Supp. 3d at 49–50 (distinguishing the Salazar/LSI Matrix from the previous
USAO Laffey Matrix). These prior awards thus do not reflect a judgment that the Salazar/LSI
Matrix more accurately reflects the prevailing market rate for Mr. Seldon’s services. Similarly,
while the D.C. Circuit recently observed that the Salazar/LSI Matrix provides a “conservative”
estimate of the prevailing market rate for Title VII litigation, Salazar, 809 F.3d at 65, it too has
39
not yet considered whether the USAO Matrix provides a more accurate estimate of the prevailing
market rate, considering that Matrix’s advantages laid out above. 37
Furthermore, courts in this District that have considered the two matrices at issue here
have determined that the USAO Matrix is a more appropriate measure of the prevailing market
rate. See Wadelton v. U.S. Dept of State, No. 13-0412, 2018 WL 4705793, at *12 (D.D.C. Sept.
30, 2018) (applying the USAO Matrix where “[t]he changes to the matrix, as well as the more
recent survey data used to develop its rates, indicate that the 2015 version provides a more a
useful starting point” compared to the Salazar/LSI Matrix (citation and internal quotation marks
omitted)); Gatore, 286 F. Supp. 3d at 37 (holding that the defendant in a FOIA action showed
“that the current USAO Matrix is the more accurate matrix for estimating the prevailing rates for
complex federal litigation in this District”); DL, 267 F. Supp. 3d at 70 (holding that the
defendant “submitted evidence showing that the USAO Matrix had more indicia of reliability
and more accurately represents prevailing market rates” than the Salazar/LSI Matrix); Clemente,
2017 WL 3669617, at *5 (applying the USAO Matrix because it “specifically measures rates in
the legal services industry, and is based on much more current data than the Salazar Matrix”);
Nat. Sec. Counselors, 2017 WL 5633091, at *18 (applying the USAO Matrix where the plaintiff
primarily addressed only the previous USAO Laffey Matrix, and therefore “did not meet his
burden for demonstrating that the [Salazar/LSI Matrix] is superior” to the USAO Matrix); but
see Hernandez v. Chipotle Mexican Grill, Inc., 257 F. Supp. 3d 100, 115 (D.D.C. 2017)
(applying the Salazar/LSI Matrix where the defendant failed “to provide any actual evidence that
the [Salazar/LSI Matrix] rate is unreasonable in the context of any complex federal litigation . . .
37
This issue is currently pending before the Circuit. See Notice of Appeal, DL, No. 18-
7004 (D.C. Cir. Jan. 10, 2018).
40
providing no affidavits or declarations of its own, no surveys of any rates charged in the
Washington, D.C. legal market, no economic analyses of the prevailing market rate, or even
examples of the rates charged by its own counsel for similar cases”). Mr. Craig has cited to no
case in which a court in this District considered the evidence for and against the Salazar/LSI
Matrix and the USAO Matrix and concluded that the Salazar/LSI Matrix more accurately
captures the prevailing market rate.
* * *
For the reasons stated above, the Court concludes that while Mr. Craig has submitted
evidence to support his argument that the Salazar/LSI Matrix should dictate a portion of his
attorneys’ fees, the government has rebutted that evidence with its own evidence that the USAO
Matrix more accurately reflects the prevailing market rate for complex federal litigation of the
type undertaken in this action. See Salazar, 809 F.3d at 64. Accordingly, the Court holds that
the USAO Matrix dictates the reasonable hourly rates for work done by Seldon Bofinger’s
attorneys.
Typically, courts award fees at hourly rates based on the year in which the work was
completed; historical rates rather than current rates. See, e.g., Reed v. District of Columbia, 134
F. Supp. 3d 122, 136–37 (D.D.C. 2015), rev’d in part on other grounds, 843 F.3d 517 (D.C. Cir.
2016). However, to account for delays in payment of attorneys’ fees, courts occasionally award
(1) pre-judgment interest on fee awards, or (2) fees from past years at current hourly rates. See,
e.g., Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (“An adjustment for delay in payment [i.e.
applying current rates] is . . . an appropriate factor in the determination of what constitutes a
reasonable attorney’s fee”); West, 717 F.3d at 1034 (“If compensation for delay is necessary to
provide a reasonable fee, it may be made ‘either by basing the award on current rates or by
41
adjusting the fee based on historical rates to reflect its present value.’” (quoting Perdue v. Kenny
A. ex rel. Winn, 559 U.S. 542, 556 (2010)); Craig, 197 F. Supp. 3d at 277 n.6 (applying the
current hourly rate to past attorney work to compensate for a delay in payment in a Title VII
case).
Here, Mr. Craig appears to request fees at current billing rates, even for past work, Fee
Mot. at 23, a request the government seems to believe is unreasonable, Fee Opp’n at 10–11.
While Mr. Craig does not support his request with any case law or explanation, this Court
concludes that Mr. Craig’s counsel is entitled to “some compensation for delay” in the resolution
of this action. Fee Opp’n at 7. Mr. Craig initiated this lawsuit on August 6, 2014, and the matter
did not go to trial until April 9, 2018, nearly 44 months later. See Tridico v. District of
Columbia, 235 F. Supp. 3d 100, 107 n.7 (D.D.C. 2017) (declining to apply current billing rates to
the plaintiffs’ counsel’s past legal work where “[a]t approximately 19 months, the resolution of
[the plaintiffs’] lawsuit was expeditious, as compared to other civil lawsuits that were resolved at
trial in this district”). The Court accordingly concludes that “compensation for delay is
necessary to provide a reasonable fee,” and the Court will award fees at the 2017–2018 USAO
Matrix rates for all past work undertaken by Seldon Bofinger’s attorneys, based on those
attorneys’ years of experience during the trial, subject to additional reductions imposed below.
West, 717 F.3d at 1034.
2. Hours Reasonably Expended
Having determined that the USAO Matrix should govern the hourly rates for Mr. Craig’s
current counsel, Seldon Bofinger, the Court turns to the reasonableness of the hours expended by
that counsel. As noted, Mr. Craig asserts that Seldon Bofinger billed 100 hours on the EEO
complaint stage ($43,871.74 in fees); 1,607 hours from the complaint through trial ($553,125.00
42
in fees); 38 130 hours on equitable relief briefing ($74,660.30 in fees); and 150 hours on
attorneys’ fees briefing ($87,393.30 in fees); and that his former counsel billed 80 hours on the
EEO complaint stage ($13,141.39 in fees). The government argues that the Court should reduce
Mr. Craig’s requested fees because (1) the number of hours billed is excessive for the work done,
Fee Opp’n at 13–18; and (2) the fees requested are unreasonable considering Mr. Craig’s limited
success, id. at 18. Addressing each argument in turn, the Court concludes that certain downward
adjustments are warranted.
a. Reduction in Fees for Excessive Billing
First, the Court addresses the government’s argument that Mr. Craig’s fee award should
be reduced because Seldon Bofinger worked an unreasonable number of hours on his case. 39 In
making fee determinations, “courts should exclude ‘hours that were not reasonably expended,’
i.e., ‘excessive, redundant, or otherwise unnecessary’ hours.” DL, 267 F. Supp. 3d at 74
(quoting Hensley, 461 U.S. at 434). Fee reductions may be appropriate to compensate “for
inadequate billing judgment, for hours billed unrelated or unnecessary to the litigation, for
statutorily non-reimbursable time, or for double-billing.” Shaw v. District of Columbia, 210 F.
Supp. 3d 46, 51 (D.D.C. 2016) (internal citations omitted). “In addition, tasks that are clerical in
nature, such as filing documents, setting up meetings, and faxing documents, are non-
compensable.” DL, 267 F. Supp. 3d at 74 (citing Beckwith v. District of Columbia, 254 F. Supp.
3d 1, 4–6 (D.D.C. 2017)). Moreover, where “[a] pleading-by-pleading examination of the
copious files in [a] case would be unnecessarily burdensome[,]” the Court has discretion to
38
As noted, the Court is applying lower hourly rates to these hours than the rates sought
in Mr. Craig’s fee motion.
39
Although, as noted, multiple attorneys from Mr. Seldon’s firm billed time to this
action, for simplicity’s sake in this section the Court will consider all hours to have been billed
by Mr. Seldon.
43
“simply reduc[e] the proposed lodestar fee by a reasonable amount without performing an item-
by-item accounting.” Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (en
banc) (internal quotation marks omitted).
The government challenges Mr. Seldon’s recorded hours for several stages of the action.
See Fee Opp’n at 15–18. It argues that the hours expended by Mr. Seldon on the EEO complaint
stage, the complaint, certain pretrial briefs, the motions for partial and full equitable relief, and
the fee petition are excessive and unreasonable. Id. The Court has reviewed Mr. Seldon’s time
entries with “special caution,” given “’the incentive’ that a government’s ‘deep pocket offers to
attorneys to inflate their billing charges and to claim far more as reimbursement then would be
sought or could reasonably be recovered from private parties.’” Heller v. District of Columbia,
832 F. Supp. 2d 32, 47 n.13 (D.D.C. 2011) (quoting Eureka Inv. Corp., N.V. v. Chicago Title Ins.
Co., 743 F.2d 932, 941–42 (D.C. Cir. 1984)). Although the Court will not dissect each entry
here, it “will discuss the [government’s] challenges to the entries for” Mr. Craig’s motions in
limine, his motions for equitable relief, and his motion for fees “as illustrative of [the
government’s] concerns.” Craig, 197 F. Supp. 3d at 281 (citing Copeland, 641 F.2d at
903 (noting that a court may avoid “[a] pleading-by-pleading examination”)). It agrees that Mr.
Seldon billed an excessive number of hours.
Mr. Craig requests fees for nearly 150 hours spent drafting and responding to motions in
limine. See Fee Mot. Att. A-2, ECF No. 121-4 at 23–34. This time includes four hours spent
drafting a memo listing anticipated motions in limine, id. at 23, and six hours assembling and
reviewing prior motions in limine, id. at 24. As these entries suggest, Mr. Seldon has previously
filed similar motions in limine in similar Title VII actions. For instance, in this action, Mr. Craig
filed a motion in limine to exclude “the protected EEO activity of Mr. Craig,” to prevent the
44
government from improperly “paint[ing] Mr. Craig as a ‘claims minded’ plaintiff.” Pl.’s First
Mot. Limine at 4–5, ECF No. 66. 40 In Makray, Mr. Seldon also filed a motion in limine to
exclude the plaintiff’s EEO complaint and other administrative activity, to similarly prevent “the
prejudicial effect of painting [the] plaintiff as litigious or ‘claims-minded.’” Pl.’s Mot. In Limine
at 4, Makray, No. 12-0520, ECF No. 38. 41 The motion in this action raised substantially similar
arguments, and cited the same case law, as the motion filed in Makray, yet Mr. Seldon spent
approximately twenty hours drafting the motion in this action. See Fee Mot. Att. A-2 at 24–25.
Considering Mr. Seldon’s extensive experience with pretrial practice in Title VII cases, the Court
concludes that Mr. Seldon’s time spent drafting Mr. Craig’s motions in limine and opposing the
government’s motions in limine was excessive.
Mr. Craig also requests fees for over sixty hours drafting his equitable relief briefing. See
generally Fee Mot. Att. A-3, ECF No. 121-5; Fee Reply Att. A-5, ECF No. 134-1. Much of this
briefing consists of stating the court’s standards for awarding equitable relief, summarizing the
relevant facts developed during the litigation, and requesting relief based on those facts. See
Partial Inj. Mot. at 1–5 (identifying the “long-standing principles that guide a court in making an
award of equitable relief”); Inj. Mot. at 1–5 (same). The briefs include little legal analysis that
would require extensive research and drafting. Moreover, two pages of Mr. Craig’s eleven-page
motion for full equitable relief were devoted to the same relief requested in Mr. Craig’s motion
for partial equitable relief. See Inj. Mot. at 6–8 (requesting that Mr. Craig be assigned a dual-hat
40
As noted, when referencing Mr. Craig’s briefs the Court cites to the page numbers
automatically generated by ECF.
41
This Court may take judicial notice of public filings in other cases in this District. Al–
Aulaqi v. Panetta, 35 F. Supp. 3d 56, 67 (D.D.C. 2014) (“A court may take judicial notice of
facts contained in public records of other proceedings[.]” (citing Covad Comms. Co. v. Bell
Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005)).
45
role). Again, considering the relief sought here and Mr. Seldon’s extensive experience with Title
VII cases, Mr. Seldon’s time spent on the equitable relief stage was excessive.
Finally, Mr. Craig requests fees for nearly 150 hours spent during the fee motion stage.
See generally Fee Mot. Att. A-4, ECF No. 121-6; Fee Reply Att. A-6, ECF No. 134-1. This time
includes over fifty hours spent preparing Mr. Seldon’s declaration. See Fee Mot. Att. A-4.
However, Mr. Seldon’s declaration in this case is similar in many ways to his declaration
submitted in Makray. See generally Decl. of Robert C. Seldon, Makray, ECF No. 85-1. And
Mr. Craig’s fee motion is similar in many ways to the fee motion filed in Makray. See generally
Fee Mot.; Pl.’s Petition Partial Award Salazar/LSI Rate, Makray, ECF No. 85. While the “time
reasonably devoted to obtaining attorneys’ fees in the context of litigation where the court must
be petitioned for such an award is itself subject to an award of fees,” Cobell v. Norton, 231 F.
Supp. 2d 295, 306–07 (D.D.C. 2002) (quoting Envtl. Def. Fund v. EPA, 672 F.2d 42, 62 (D.C.
Cir. 1982)), one hundred hours’ worth of fees for the preparation of Mr. Craig’s fee motion
would again be excessive, considering Mr. Seldon’s experience in this area. See Robinson v.
District of Columbia, No. 15-444, 2018 WL 5266879, at *17 (D.D.C. Oct. 23, 2018) (granting
the plaintiff’s fees on fees request for forty hours); McNeil v. District of Columbia, 233 F. Supp.
3d 150, 162–63 (D.D.C. 2017) (granting the plaintiffs’ fees on fees request for fifty hours).
In addition to debating the reasonableness of specific time expenditures by Mr. Seldon,
both parties spend significant briefing space comparing the time spent in this action to the time
spent by prevailing plaintiffs’ attorneys in other Title VII actions. For instance, to rebut the
government’s challenge to the reasonableness of the hours expended, Mr. Craig argues that
because the number of hours expended during this litigation were approximately the same as the
number of hours expended during Makray and Roman, the number of hours is “inherently
46
reasonable.” Fee Mot. at 9. However, in both Makray and Roman, the plaintiff and the
government agreed on the number of hours reasonably expended, and the courts in those cases
did not evaluate the hours’ reasonableness. See Makray, 159 F. Supp. 3d at 31 (“[T]he parties
have stipulated to the total number of hours reasonably billed by the plaintiff’s attorneys[.]”);
Order Granting Motion for Entry of Final Judgment, Roman. 42 Similarly, the government argues
that the “hours billed in this matter” are “excessive in comparison to some of the very cases that
Plaintiff’s counsel cites to in his fee request.” Fee Opp’n at 14–15 (listing the number of hours
expended by plaintiffs in various successful Title VII actions). While a comparison of hours
expended across successful Title VII cases may provide some rough measure of reasonableness,
as Mr. Craig’s counsel acknowledges, “the amount of billable time needed in litigation to litigate
varies from case to case.” Seldon Decl. I ¶69 n.16. The Court declines to evaluate the
reasonableness of the hours spent here based on hours spent in unrelated Title VII actions with
their own idiosyncrasies.
To rebut the government’s challenge to the reasonableness of the hours expended, Mr.
Craig submitted a supplemental declaration by Mr. Seldon. See Seldon Decl. II. In addition to
distinguishing the cases relied upon by the government discussed in the previous paragraph, this
declaration primarily asserts that the hours expended in this action were reasonable in light of the
government’s vigorous litigation tactics and refusal to negotiate. See id. ¶¶ 24, 28–30. This
42
The fact that the government previously stipulated to the number of hours reasonably
expended, to avoid further litigation, does not preclude the government from challenging the
hours expended in a later, unrelated case. See, e.g., Makray, 159 F. Supp. 3d at 43 (“[S]imply
because the plaintiff's counsel in the past agreed to less generous compensation to avoid further
litigation (and the accrual of additional attorneys' fees), does not preclude that counsel from
seeking reimbursement for the actual value of his services.”). The Court will not penalize the
government for its previous settlement efforts; as noted below, such efforts would have been
welcomed here.
47
argument is well taken; as Mr. Craig notes, “[t]he government cannot litigate tenaciously and
then be heard to complain about the time necessarily spent by the plaintiff in response.” Fee
Reply at 25 (citing Copeland, 641 F.2d at 904). 43 That said, as discussed above, the Court finds
that Mr. Seldon did spend an unreasonable amount of time on certain phases of this action.
Because a “pleading-by-pleading examination of the copious files in this case would be
unnecessarily burdensome[,]” the Court will reduce the overall “lodestar” fee by fifteen percent.
Id. at 903. 44
b. Reduction in Fees for Lack of Success
Second, the Court must determine the degree to which Mr. Craig’s attorneys’ fee award
should be reduced to account for Mr. Craig’s limited success. The Court may make such a
reduction, if warranted. See Hensley, 461 U.S. at 434–36 (explaining that when plaintiffs prevail
on only some of their claims, “a fee award based on the [total] claimed hours” would be
43
The Court is particularly vexed by the government’s litigating position with respect to
Mr. Craig’s attorneys’ fees. The government’s refusal to stipulate to any aspect of the fee award,
and its assertion that Mr. Craig is entitled to no more than $15,000 in fees, are patently
unreasonable considering the vigor with which the government has litigated this case since its
inception. See Fee Opp’n at 2; Def.’s Opp’n Pl.’s Mot. Award of Interim Att’y’s Fees & Costs at
1–2, ECF No. 133. Had the government demonstrated a shade more rationality, the parties and
this Court may have saved a significant amount of time and resources. Moreover, given that the
government offered to stipulate to $15,000 in fees, its assertion that this Court should award that
amount appears to be a negotiating position, rather than a proposed reasonable fee award. Fee
Reply Att. G. “When a party submits a fee petition, it is not the ‘opening bid in the quest for an
award[,]’” Clemens v. N.Y. Central Mutual Fire Ins. Co., 903 F.3d 396, 403 (3d Cir. 2018)
(quoting Fair Hous. Council of Greater Wash. v. Landow, 999 F.2d 92, 97 (4th Cir. 1993)), and
the same principle applies to a defendant responding to a fee petition. Just as this Court “may
deny in its entirety a request for an ‘outrageously unreasonable’ amount [of attorneys’ fees], lest
claimants feel free to make ‘unreasonable demands, knowing that the only unfavorable
consequence of such misconduct would be reduction of their fee to what they should have asked
for in the first place[,]’” Environ. Def. Fund v. Reilly, 1 F.3d 1254, 1258 (D.C. Cir. 1993)
(quoting Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980)), in the future this Court may be
less inclined to reduce a fee award, should the government fail to suggest reasonable reductions.
44
This reduction does not apply to time billed by Mr. Craig’s former counsel on Mr.
Craig’s EEO complaints. That counsel’s fee award is discussed below.
48
“excessive”); Merrick v. Dist. of Columbia, 316 F. Supp. 3d 498, 506 (D.D.C. 2018) (“Courts . . .
have the discretion to reduce attorneys’ fees awards to account for partial or limited success on
the merits by either eliminating specific hours or reducing the award as a whole.” (citing
Hensley, 461 U.S. at 436–37)); Craig, 197 F. Supp. 3d at 283 (same). And both parties agree
that a reduction is appropriate here. See Fee Mot. at 26 (stating that the final step in Mr. Craig’s
“calculation of a lodestar award was to take account of plaintiff’s success in this case and make
an overall reduction”); Fee Opp’n at 1. The parties do not agree, however, on the appropriate
degree of reduction.
When determining how to reduce a fee award for a partially successful plaintiff, a court
must analyze the relationships between the successful and unsuccessful claims. See Hensley,
461 U.S. at 434–35. If the plaintiff presented “distinctly different claims for relief that are based
on different facts and legal theories,” then “counsel’s work on one claim will be unrelated to his
work on another claim.” Id. In cases with such “distinctly different claims,” “no fee may be
awarded for services on [any] unsuccessful claim[s].” Id. But if the plaintiff’s claims “involve a
common core of facts[,]” or are based on “related legal theories[,]” “[m]uch of counsel’s time
will be devoted generally to the litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis.” Id. at 435. In cases with interrelated claims, the court
should “focus on the significance of the overall relief obtained by the plaintiff in relation to the
hours reasonably expended on the litigation.” Id.
The government makes two arguments for why Mr. Craig’s fee award should be
significantly reduced for lack of success. First, the government argues that Mr. Craig was
unsuccessful on several claims unrelated to his successful claim, and therefore that Mr. Craig
should not be awarded fees for work on those unsuccessful claims. Fee Opp’n at 18–19.
49
Second, the government argues that the overall relief obtained by Mr. Craig—$5,485 and
minimal equitable relief—does not justify a fee award of approximately $700,000. Id. at 3–4.
By contrast, Mr. Craig contends that all of his claims arose from the same core set of facts and
his degree of success cannot be measured only by his relief at trial, considering the core
equitable relief he seeks. See Fee Reply at 7, 12. The Court concludes that Mr. Craig’s claims
were sufficiently interrelated that a claim-by-claim reduction is only feasible for the EEO
complaint stage. However, the Court also concludes that a downward fee adjustment is
appropriate considering Mr. Craig’s limited overall success.
i. Claim-by-Claim Reduction
The government claims that Mr. Craig’s fee award should be reduced on a claim-by-
claim basis because Mr. Craig was only successful on one of his original claims, and while Mr.
Craig “argues that virtually all of his claims were interrelated, this is not the case.” Fee Opp’n at
18–19. As noted, fees may be reduced for time spent on ultimately unsuccessful claims, but
those claims generally must be both unsuccessful and unrelated to the successful claims. See
Hensley, 461 U.S. at 434-35. Claims are completely unrelated when they are “distinctly different
in all respects, both legal and factual, from [the] plaintiff’s successful claims.” Radtke v.
Caschetta, 254 F. Supp. 3d 163, 175 (D.D.C. 2017) (internal quotation marks omitted)
(quoting Morgan v. D.C., 824 F.2d 1049, 1066 (D.C. Cir. 1987)). In such circumstances, a court
should not award fees for the time spent on the unsuccessful claims. Craig, 197 F. Supp. 3d at
283. However, when claims “involve a common core of facts” or are “based on related legal
theories,” “[m]uch of counsel’s time will be devoted generally to the litigation as a whole,
making it difficult to divide the hours expended on a claim-by-claim basis.” Id. (quoting
Hensley, 461 U.S. at 435). Under those circumstances, “the district court should focus on the
50
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.
Having reviewed the record and overseen this case from its inception through trial and
beyond, the Court concludes that only Mr. Craig’s EEO complaints may be addressed on a
claim-by-claim basis. Mr. Craig filed at least four administrative EEO complaints before
bringing this action. See Fee Opp’n Ex. E, ECF No. 130-5 (collecting Mr. Craig’s EEO
complaint declarations). Of these complaints, only one of them, 13-0024, focused on Mr.
Craig’s placement and treatment in the Executive Lead position; the claim for which Mr. Craig
was ultimately successful at trial. See id. at 1. The other EEO complaints asserted claims that
were ultimately unsuccessful, arising from Mr. Craig’s non-selection to the A/D Manufacturing
position in 2008 and 2014, see id. at 20, 53 (13-0661 & 14-0762), Mr. Craig’s year-end reviews
and bonus awards, see id. at 35, 76 (14-0311 & 15-1466), and other position changes not directly
related to his assignment to the Executive Lead, see id. at 72 (claiming that the Mint’s decision
to alter Mr. Craig’s reporting structure was discriminatory and retaliatory).
Mr. Craig argues that the EEO complaints arose from a common core of facts, all of
which were necessary to his trial victory, and therefore that the Court cannot analyze them on a
claim-by-claim basis. Fee Mot. at 28. For instance, Mr. Craig argues that the EEO complaints
related to his non-selection to the A/D Manufacturing position involved facts that “would have
been offered at trial” in pursuing his successful claim because they showed that the Executive
Lead position harmed Mr. Craig’s career prospects. Id. Similarly, Mr. Craig argues that the
facts underlying his unsuccessful EEO complaint challenging his 2014 year-end performance
bonus were “essential” because they showed that Mr. Craig did not have classified duties as the
51
Executive Lead. Id. at 29. Mr. Craig also notes that he pursued very little discovery with respect
to his claims arising from unsuccessful EEO complaints. Id. at 28–29.
However, even if Mr. Craig’s unsuccessful EEO complaints arose from facts that were
ultimately used to support his successful claim before this Court, Mr. Craig has not demonstrated
why time spent on those EEO complaints at the administrative stage should not be discounted.
Presumably, had Mr. Craig only pursued his Executive Lead-related claim, the facts necessary
for him to succeed on that claim would have emerged through discovery, regardless of whether
Mr. Craig filed other EEO complaints related to those facts. In other words, Mr. Craig would be
allowed discovery on those issues if relevant to his successful claim without the need to have
independently administratively exhausted specific EEO complaints based on those issues.
Accordingly, because only one of Mr. Craig’s administrative EEO complaints was
successful, the Court concludes that Mr. Craig is only entitled to attorneys’ fees for that
complaint. It appears that Mr. Craig’s prior counsel primarily worked on Mr. Craig’s successful
EEO complaint, so the Court will not reduce that counsel’s fees on a claim-by-claim basis. See
Fee Mot. Att. C, ECF No. 121-8; Seldon Decl. ¶ 75 n.18. On the other hand, Mr. Craig’s current
counsel worked on each of Mr. Craig’s EEO complaints, and Mr. Craig has helpfully categorized
his time entries for this stage of the litigation by EEO complaint. See Fee Mot. Att. A-1, ECF
No. 121-3. The Court holds that Mr. Craig is only entitled to attorneys’ fees for time spent on
the successful EEO complaint, which Mr. Seldon contends was 31.5 hours. Seldon Decl. ¶ 76.
While Mr. Craig’s EEO complaints may be addressed on a claim-by-claim basis, Mr.
Craig’s claims litigated before this Court arose from a “common core of facts,” and thus were
too closely intertwined for the Court to reduce Mr. Craig’s fee award on a claim-by-claim basis.
Hensley, 461 U.S. at 435. The claims dismissed at the motion to dismiss and motion for
52
summary judgment stages involved the same core set of facts underlying the claims that reached
the trial stage; facts related to the timing of Mr. Craig’s EEO complaints compared to the timing
of certain personnel decisions, and the Mint’s proffered reasons for those personnel decisions
(whether allegedly based on race or retaliation). For instance, the government successfully
moved for summary judgment on Mr. Craig’s discrimination claims arising from his assignment
to the Executive Lead position, his non-selection for the A/D Manufacturing position in 2014,
and his assignment to the A/D ESH position, but his retaliation claims arising from those actions,
which turned on the same set of facts and whether the Mint’s stated reasons for its actions were
pretextual, survived to trial. Craig II, 278 F. Supp. 3d at 66–68, 75. Similarly, while Mr.
Craig’s claims arising from his non-selection to the A/D Manufacturing position in 2008 and
2014 and his reassignment out of the A/D SAM position in 2012 were ultimately unsuccessful,
the facts underlying those claims were necessary to show that Mr. Craig’s assignment to the
Executive Lead position was harmful to his career prospects because it resulted in a significant
reduction in his responsibilities and authority. See Fee Mot. at 35–36; Fee Reply at 7–9.
Considering the “overlapping factual issues and related legal theories” that form the
foundation of Mr. Craig’s action, the time that Mr. Craig’s counsel spent on the unsuccessful
claims “undoubtedly contributed to the litigation of [his]” successful retaliation claim. Craig,
197 F. Supp. 3d at 197 (citing Hensley, 461 U.S. at 435 n.11 (disapproving of “a mathematical
approach comparing the total number of issues in the case with those actually prevailed upon”
(internal quotation marks omitted))). Because much of Mr. Craig’s counsels’ time was devoted
to litigating the case as a whole, the Court will not attempt to parse Mr. Craig’s time records to
reduce the fee award based on time spent on unsuccessful claims. Rather, it will evaluate Mr.
Craig’s overall degree of success.
53
ii. Overall Reduction
Having determined that a claim-by-claim reduction is mostly impractical, the Court must
determine the extent to which Mr. Craig’s fee award should be reduced for his overall lack of
success. As noted, “[t]here is no precise rule or formula for making [fee] determinations . . . .
The court necessarily has discretion in making this equitable judgment.” Hensley, 461 U.S. at
436–37. Accordingly, the Court will consider the relief obtained by Mr. Craig in comparison to
the relief sought—both monetary and equitable—without applying a rigid mathematical
approach. See Radtke, 254 F. Supp. 3d at 171 (“[F]ees awarded need not necessarily be
proportionate to the amount recovered by the prevailing party, and should not be reduced solely
to achieve proportionality.” (citations omitted)).
The government ascribes significant weight to the fact that the attorneys’ fee award
sought by Mr. Craig is 143 times larger than Mr. Craig’s damages award. Fee Opp’n at 20.
However, as even the government admits, Fee Opp’n at 22, simply because an attorneys’ fee
award is greater than the damages and injunctive relief awarded does not automatically make that
fee award excessive. See Thomas v. Nat'l Football League Players Ass'n, 273 F.3d 1124, 1129
(D.C. Cir. 2001) (“That the fees awarded are . . . nearly five times the amount of plaintiff’s
recovery does not make them excessive.” (internal quotation marks omitted)). “There is, of
course, no mathematical rule requiring proportionality between compensatory damages and
attorneys’ fees awards, and courts have awarded attorneys’ fees where plaintiffs recovered only
nominal or minimal damages.” Thompson v. Int'l Ass'n of Machinists & Aerospace
Workers, 664 F. Supp. 578, 581 (D.D.C. 1987) (citation omitted). As acknowledged by another
court in this District, “the use of the lodestar approach will, at times, necessitate fee awards that
exceed the aggregate recovery to their clients.” Driscoll v. George Washington Univ., 55 F.
54
Supp. 3d 106, 113–14 (D.D.C. 2014). But “[t]his is no reason to reduce fee awards given the
policy objectives of fee-shifting statutes.” Radtke, 254 F. Supp. 3d at 172.
On the other hand, the difference between the relief obtained by a plaintiff and the relief
sought by that plaintiff is a key factor in determining the proper success-based fee
reduction. See Radtke, 254 F. Supp. 3d at 173 (“District courts should consider the disparity
between the amount of damages sought versus the amount of damages ultimately awarded.”
(citing Combs v. City of Huntington, Texas, 829 F.3d 388, 395–96 (5th Cir. 2016)). This
evaluation should account for both monetary and equitable relief sought and obtained.
See Hensley, 461 U.S. at 455 n.11 (“[A] plaintiff who failed to recover damages but obtained
injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended
if the relief obtained justified that expenditure of attorney time.”). “Thus, ‘[a]lthough a
substantial disproportionality between a fee award and a verdict, standing alone, may not justify
a reduction in attorney’s fees, a lack of litigation success will.’” Radtke, 254 F. Supp. 3d at 173
(quoting McAfee v. Boczar, 738 F.3d 81, 94 (4th Cir. 2013)).
And Mr. Craig’s counsel ultimately secured a very limited portion of the monetary and
equitable relief sought. First, as the government notes, Fee Opp’n at 22, Mr. Craig’s complaint
sought compensatory damages, which are statutorily capped at $300,000, 42 U.S.C. §
1981a(b)(3), yet Mr. Craig only obtained $5,485 in compensatory damages at trial, Fee Opp’n at
3; see also Am. Compl. at 29; Fee Opp’n Ex. F, ECF No. 130-6 (collecting Mr. Craig’s requests
for relief attached to his EEO complaints). Second, Mr. Craig’s complaint sought backpay “in
the amount of the difference of a performance based bonus . . . for [fiscal year] 2012 and a Fully
Successful bonus,” Am. Compl. at 29, and the Court’s summary judgment decision in favor of
the government prevented Mr. Craig from receiving that relief, Craig II, 278 F. Supp. 3d at 57–
55
59. Third, and perhaps most importantly, while the Court does not believe that the core relief
sought by Mr. Craig was, as the government asserts, a promotion to the A/D Manufacturing
position, Fee Opp’n at 21, Mr. Craig himself states that the core relief sought was “equitable
relief to protect his career and allow him to move forward without the anchor of having been
sidelined in a meaningless position for a year and a half around his neck.” Fee Reply at 14. The
Court is sympathetic to Mr. Craig’s harm but, as discussed above, it is not granting the key
equitable relief sought in multiple motions; installation in a dual hat, “career enhancing” role.
See generally Partial Inj. Mot.; Inj. Mot; see also Mazloum v. District of Columbia, 654 F. Supp.
2d 1, 4 (D.D.C. 2009) (reducing the plaintiff’s requested fees because the plaintiff “was wholly
unsuccessful on his primary discrimination claim”). And while holding the Mint accountable for
conduct that a jury found illegal is an important contribution to the public interest, Fee Reply at
14–15, that contribution does not outweigh the fact that Mr. Craig’s counsel was unable to obtain
for him a large portion of the relief sought. 45
In urging the Court to reduce the fee award by only approximately 26 percent, Mr. Craig
relies heavily on this Court’s prior holding in Craig. While that case illustrates the analytical
45
The government cites several cases in which a court in this District reduced a
plaintiff’s fee award because (1) the plaintiff prevailed on only a small fraction of the claims
brought, or (2) the relief obtained was significantly less than the relief sought. Fee Opp’n at 14–
15, 22–26 (citing Thomas, 273 F.3d at 1129; Tridico, 235 F. Supp. 3d at 108–11; Medina v.
District of Columbia, 864 F. Supp. 2d 13, 22 (D.D.C. 2012); Mazloum, 654 F. Supp. 2d at 2–5;
David v. District of Columbia, 489 F. Supp. 2d 45, 49–52 (D.D.C. 2007); Smith v. District of
Columbia, 466 F. Supp. 2d 151, 156–61 (D.D.C. 2006); Mintzmyer v. Babbitt, No. 93-773, 1996
WL 294252, at *4 (D.D.C. May 29, 1996)). While these cases may be factually distinguishable
in certain respects from Mr. Craig’s action, see Fee Reply at 17–22, they stand for the basic
proposition that a court may reduce a fee award to account for time spent on unsuccessful claims
unrelated to the successful claims, or to account for the plaintiff’s overall lack of success. See
Hensley, 461 U.S. at 434–36. They also show that courts have broad discretion to impose
reductions on a case-by-case basis depending on the posture, facts, and procedural history of a
given case.
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framework governing a success-based fee reduction, it is factually inapposite here. In Craig, this
Court recognized that while the plaintiff only succeeded on “one claim of the numerous claims
initially pressed,” she prevailed on her “central claim,” and the dismissal of other claims and
defendants “did not materially reduce the damages or remedies that [she] was able to seek, and
that she ultimately obtained, at trial.” Craig, 197 F. Supp. 3d at 283–84. Moreover, the plaintiff
obtained a successful verdict on every claim that reached trial. Id. at 284. Here, on the other
hand, Mr. Craig did not obtain the core relief sought—a retroactive promotion to a “career
enhancing” position—and Mr. Craig’s failure to obtain successful verdicts related to his non-
selection to the A/D Manufacturing position and his reassignment from the A/D SAM position
reduced his ability to receive a “promotion” to one of those positions as part of his equitable
relief. Additionally, Mr. Craig was successful on only one of three claims at trial. See Jury
Verdict.
Mr. Craig also argues that the Court should not reduce his counsels’ fees incurred during
the equitable relief and attorneys’ fees stages because the “equitable relief Mr. Craig is seeking is
tailored to his success at trial.” Fee Mot. at 37. However, Mr. Craig cites no case law in support
of this argument. And it is well established that attorneys’ fee awards for both fee motions, see
Gatore, 286 F. Supp. 3d at 50; EPIC v. DHS, 982 F. Supp. 2d 56, 64 (D.D.C. 2013), and
equitable relief motions, see Robinson, 2018 WL 5266879, at *15, may also be reduced for lack
of success. Such reductions are appropriate here, where Mr. Craig’s counsel failed to obtain the
primary equitable relief sought and failed to obtain the full measure of attorneys’ fees sought.
In summary, Mr. Craig obtained less than ten percent of the compensatory damages the
jury could have awarded, and he obtained roughly half of the equitable relief sought, albeit not
the core relief of a “career enhancing” dual hat role. However, the jury’s verdict did vindicate
57
Mr. Craig’s rights, and that verdict may deter the agency from similarly retaliating against other
Mint employees. Accordingly, because Mr. Craig obtained less than half of the total relief
sought, the Court concludes that a sixty-five percent reduction of Mr. Craig’s fee award is
necessary to reflect “the significance of the overall relief obtained by [Mr. Craig] in relation to
the hours reasonably expended on the litigation.” Hensley, 461 U.S. at 435; see also Radtke, 254
F. Supp. 3d at 175 (“Given plaintiffs lack of success on two major issues that would otherwise
have greatly increased their damages, the Court finds that a downward departure is
warranted.”). 46
3. Costs
Mr. Craig also requests reimbursement for $11,660.04 in costs, to which the government
does not object, and $8,853.20 in expert fees for Mr. Davidson’s services. See Fee Mot. at 10;
Fee Reply at 27; Fee Mot. Att. B; Seldon Decl. II ¶ 59. “An award of costs for copying, faxing
and postage . . . [is] customarily included in fees awards.” Kaseman v. District of Columbia, 329
F. Supp. 2d 20, 28 n.7 (D.D.C. 2004); see also Sexcius v. District of Columbia, 839 F. Supp. 919,
927 (D.D.C. 1993) (noting that “[r]easonable photocopying, postage, long distance telephone,
messenger, and transportation and parking costs are customarily considered part of a reasonable
‘attorney’s fee’”). Such costs are only shifted to the defendant if they are reasonable, see Bailey
v. District of Columbia, 839 F. Supp. 888, 892 (D.D.C. 1993), and if they are “related nontaxable
expenses.” Fed. R. Civ. P. 54(d)(2)(A) (emphasis added). Moreover, Title VII explicitly allows
for an award of “reasonable . . . expert fees.” 42 U.S.C. § 2000e-5(k).
46
This reduction applies to work done by Mr. Craig’s current and former counsel on the
successful EEO complaint, in addition to work done during the litigation and post-trial stages.
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While Mr. Craig requests reimbursements for nontaxable expenses—such as
transportation costs, meals, and printing—he also appears to request reimbursement for taxable
expenses. Fee Mot. at 49–50 (“Several [costs] may be taxable and therefore need not be part of a
fee petition”); Fee Mot. Att. B. Under 28 U.S.C, § 1920 and Local Rule 54.1(d), “Clerk’s fees,”
deposition transcripts, witness fees, costs of subpoena service, and certain other reimbursable
items are taxable by the Clerk upon receipt of a bill of costs submitted on a court-approved form.
LCvR 54.1(a) & 54.1(d). Mr. Craig seeks reimbursement for, among other taxable expenses, a
filing fee, a deposition transcript, and witness fees. Fee Mot. Att. B. Although these line items
appear to be taxable expenses that must normally be submitted through a bill of costs, because
the government does not contest Mr. Craig’s costs the Court will award them without requiring
this extra step. See Fee Opp’n at 2 n.1 (stating that the government “does not seek a reduction”
of Mr. Craig’s request for costs).
While the government concedes Mr. Craig’s request for costs, it has not had the
opportunity to challenge Mr. Craig’s request for Mr. Davidson’s expert fees. Mr. Davidson was
retained to support Mr. Craig’s argument for the application of Salazar/LSI billing rates, an
argument that was ultimately unsuccessful. Fee Mot. at 23. Accordingly, the Court will exercise
its discretion to consider Mr. Craig’s success when awarding attorneys’ fees and costs, and it will
deny Mr. Craig’s request for expert fees associated with his unsuccessful argument regarding the
prevailing market rate for Mr. Seldon’s services. See Hensley, 461 U.S. at 436–37; see also
Westfahl v. District of Columbia, 183 F. Supp. 3d 91, 102 (D.D.C. 2016) (denying the prevailing
plaintiff’s request for costs associated with the plaintiff’s unsuccessful claims, and reducing the
total cost award to reflect the plaintiff’s overall success).
* * *
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For the reasons stated above, the Court holds that Mr. Craig is entitled to $307,000.28 in
attorneys’ fees for Seldon Bofinger’s work, $4,599.49 in attorneys’ fees for Mr. Craig’s former
counsel’s work, and $11,660.04 in costs. This award is calculated as follows.
The Court applied the 2017-2018 USAO Matrix rates to Seldon Bofinger’s billable hours
from the action’s inception through trial. The Court applied the rates corresponding to the
relevant attorneys’ years of experience as of the April 2018 trial. The following chart
summarizes the Court’s calculation. 47
Years of Experience USAO Matrix
Attorney Hours Fee
(April 2018) Rate
Robert Seldon 31+ $602.00 753.5 $453,607.00
Charlene
31+ $602.00 129.3 $77,838.60
Bofinger
Molly Buie 15 $483.00 617.7 $298,349.10
Lauren Drabic 6 $352.00 19.1 $6,723.20
Kirby York Paralegal $164.00 87.8 $14,399.20
Totals 1607.40 $850,917.10
47
Mr. Craig helpfully summed the hours expended by each Seldon Bofinger attorney on
this stage of the litigation. Fee Mot. at 24 n.15. In lieu of conducting a line-by-line analysis of
Mr. Craig’s time entries, the Court assumes the accuracy of this information, which the
government has not contested. Mr. Craig’s motion, however, does not list the hours expended by
Kirby York on this stage. The Court calculated Ms. York’s hours by subtracting the hours listed
in Mr. Craig’s motion for the other Seldon Bofinger attorneys from Mr. Craig’s asserted total of
1,607.4 hours. See id. at 24.
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The Court also applied the 2017-2018 USAO Matrix rates to Seldon Bofinger’s billable
hours expended on the ultimately successful EEO complaint, Mint No. 13-0024. See Seldon
Decl. ¶ 76; Fee Mot. Att. A-1. The following chart summarizes the Court’s calculation.
Years of Experience USAO Matrix
Attorney Hours Fee
(April 2018) Rate
Robert Seldon 31+ $602.00 4.7 $2,829.40
Charlene
31+ $602.00 26.8 $16,133.60
Bofinger
Totals 31.50 $18,963.00
With these adjustments, Mr. Craig’s fee award for Seldon Bofinger’s work, without
additional reductions, would have been $1,031,933.70. This award incorporates the following
fees:
• Administrative stage: $18,963.00
• Litigation stage: $850,917.10
• Equitable relief stage: $74,660.30
• Attorneys’ fees stage: $87,393.30
Finally, the Court reduced Mr. Craig’s award by fifteen percent to account for excessive
billing, and then reduced the award by another sixty-five percent to account for Mr. Craig’s lack
of success. Thus, the total award for Seldon Bofinger’s work is $307,000.28. The Court also
applied the sixty-five percent success reduction to work done by Mr. Craig’s former counsel at
the administrative stage, generating fees for that counsel of $4,599.49. Finally, as noted, the
Court is granting Mr. Craig’s unopposed request for $11,660.04 in costs, but not his request for
expert fees associated with his unsuccessful argument in favor of Salazar/LSI billing rates. The
government shall promptly pay these awards.
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V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
1. Mr. Craig’s Motion for Partial Equitable Relief (ECF No. 110) is DENIED.
2. Mr. Craig’s Motion for Complete Equitable Relief (ECF No. 120) is GRANTED
IN PART as follows:
a. The Mint shall treat Mr. Craig’s Executive Lead position as an Associate
Director-level position, with Associate Director-level responsibilities and
authority, for purposes of both internal personnel decisions and external,
employment-related inquiries.
b. The Mint shall alter the SF-52’s, performance appraisals, and Performance
Review Board materials in Mr. Craig’s Official Personnel File so that they
identify Mr. Craig as the A/D SAM, rather than as an Executive Lead,
until Mr. Craig became the A/D ESH in 2014.
c. The Mint shall submit to Mr. Craig an updated version of Mr. Craig’s
Official Personnel File within thirty days from this Memorandum
Opinion’s issuance.
3. Mr. Craig’s Motion for an Award of Attorneys’ Fees and Costs (ECF No. 121) is
GRANTED IN PART as follows:
a. Mr. Craig is awarded fees for his current counsel totaling $307,000.28.
b. Mr. Craig is awarded fees for his former counsel totaling $4,599.49.
c. Mr. Craig is awarded costs totaling $11,660.04.
4. Mr. Craig’s Motion for an Interim Award of Attorneys’ Fees (ECF No. 129) is
DENIED.
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An order consistent with this Memorandum Opinion is separately and contemporaneously
issued.
Dated: November 21, 2018 RUDOLPH CONTRERAS
United States District Judge
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