Fonville v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
CHARLES L. FONVILLE, )
)
Plaintiff, )
) Case No. 1:02-CV-02353 (EGS)
v. )
)
DISTRICT OF COLUMBIA )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Plaintiff Charles Fonville brings this action against the
District of Columbia (“District”) pursuant to the Fifth
Amendment of the Constitution and 42 U.S.C. § 1983. Plaintiff
alleges that he was deprived of his constitutionally protected
property interests when he was demoted from the rank of
Commander to Captain in the Metropolitan Police Department
(“MPD”) without notice or a hearing. He also claims that
certain statements made by the MPD in connection with his
demotion damaged his professional reputation, depriving him of a
liberty interest. Pending before the Court are Defendant’s
renewed motion for summary judgment, Plaintiff’s renewed cross
motion for partial summary judgment, and Plaintiff’s petition
for attorney fees based on the Court’s previous award of
sanctions against the District for discovery violations.
This case has a long history for a number of reasons,
including discovery abuses by the District. Most recently,
however, the case was stayed to await the outcome of two cases
pending before the District of Columbia Court of Appeals. These
cases squarely addressed a central issue in this case: whether a
Commander in the MPD has a property interest in his position, or
whether he may be demoted to the rank of Captain at the pleasure
of the Chief of Police. See Hoey v. D.C. Office of Employee
Appeals and D.C. Metropolitan Police Department, No. 10-CV-963,
and Burton v. D.C. Office of Employee Appeals, No. 09-CV-1493.
Recognizing the high degree of deference this Court gives to the
District of Columbia Court of Appeals to determine matters of
local law, see, e.g., Pernell v. Southall Realty, 416 U.S. 363,
368 (1974), the Court stayed the proceedings in this case until
the appeals were finally exhausted in 2012.
The Court of Appeals found that Commanders and other MPD
officers above the rank of Captain do not have a property
interest in their positions, and may therefore be demoted to
Captain without cause, notice, or an opportunity to be heard.
For the reasons set forth below, that decision compels the same
outcome in this case. Thus Defendant’s renewed motion for
summary judgment as to Plaintiff’s property interest claim will
be GRANTED and Plaintiff’s renewed cross motion will be DENIED.
Upon consideration of defendant’s renewed motion for summary
2
judgment on Plaintiff’s liberty interest claim, Plaintiff’s
response, the relevant caselaw and the entire record in this
case, the motion for summary judgment will be GRANTED. Finally,
upon consideration of the motion for attorney fees, the Court
awards Plaintiff fees in the amount of $53,480.04 as sanctions
for the Defendant’s failure to comply with the Court’s discovery
orders.
I. BACKGROUND
Plaintiff Charles Fonville joined the MPD in February 1972.
Compl. ¶ 6. He was promoted to Captain in 1995. Id. On March
7, 1999, then Police Chief Charles Ramsey promoted Plaintiff
directly from Captain to Commander, skipping over the rank of
Inspector. Pl.’s Renewed Combined Opp’n to Def.’s Summ. J. Mot.
and Cross Mot. for Partial Summ. J. (hereinafter “Pl.’s
Opp’n/Cross Mot.”) Ex. 6, Deposition of Charles Fonville
(“Fonville Dep.”) at 60-61 (ECF No. 122). Plaintiff received a
two-grade pay increase to correspond with his two level
promotion in rank. Id.; see also Exs. 18, 21.
Approximately seven months after his promotion, on October
22, 1999, Mr. Fonville was involved in an incident with officers
of the Federal Protective Service (“FPS”) regarding his
illegally parked car. Compl. ¶¶ 8-9. Plaintiff, who was off
duty at the time, was arrested for assaulting a police officer.
Id. ¶¶ 8, 12-15. He was released without charges. Id. ¶¶ 15-
3
16. The MPD Office of Internal Affairs (“IAD”) began an
investigation of the incident on October 25, 1999. As part of
the investigation, Plaintiff gave a transcribed oral statement
regarding the incident. The IAD obtained recorded statements
from several other witnesses as well. Id. ¶ 17. The IAD filed
a report of its investigation on November 10, 1999. Pl.’s
Opp’n/Cross Mot. Ex. 8. IAD found there was insufficient
evidence to sustain charges of “assault” and “conduct unbecoming
of an MPD officer,” against Plaintiff, but found that he
violated District of Columbia Municipal Regulations for failing
to have his service weapon and badge in his possession while in
the District of Columbia. Id. The IAD recommended that
Plaintiff be “referred to his commanding officer for
administrative action.” Id.
On or about November 29, 1999, Chief Ramsey summoned Mr.
Fonville to his office. Chief Ramsey said he had reviewed the
file regarding the October 22 incident, and felt that Mr.
Fonville’s actions were inappropriate. Fonville Dep. 93. Chief
Ramsey then told Plaintiff he was being demoted to the rank of
Captain. Compl. ¶ 19. On his way out of the meeting, Mr.
Fonville was given a white envelope containing a Captain’s
badge, cap plate and rank insignia. Id. His demotion was
effective as of December 5, 1999. Pl.’s Opp’n/Cross Mot. Ex.
4
18. Plaintiff worked as a Captain in the MPD until he retired
from MPD in March, 2000. Compl. ¶¶ 19-21.
The incident regarding Plaintiff’s encounter with the FPS,
and his subsequent demotion, was reported in The Washington Post
and The Washington Times on November 30, 1999. Pl.’s
Opp’n/Cross Mot. Ex. 11. The articles attributed comments to
Chief Ramsey that Plaintiff had been demoted because he engaged
in “unacceptable behavior” in connection with the incident,
which “was not consistent with what I expect from a command
member of my staff.” Id. Chief Ramsey does not deny making
these statements to the press. Id. at Ex. 5, Dep. of Charles
Ramsey (“Ramsey Dep.”) at 168-74.
Plaintiff filed suit in this Court in November 2002. Count
One of his Complaint alleges that the District deprived him of
his property interest in the Commander position, in violation of
the Fifth Amendment of the Constitution and 42 U.S.C. § 1983, by
demoting him without due process of law. Count Two alleges that
the District deprived him of his liberty interest in pursuing
his chosen profession by defaming him in the course of demoting
him from Commander to Captain, also in violation of the Fifth
Amendment and section 1983. The parties engaged in discovery
until December 2005, when the District moved for summary
judgment. Def.’s First Mot. for Summ. J. (ECF No. 41). On
August 22, 2006, the Court denied the motion for summary
5
judgment. The Court further found that Plaintiff had a property
interest in his Commander position and, thus, could not be
demoted without due process. Fonville v. Dist. of Columbia, 448
F. Supp. 2d 21, 23 (D.D.C. 2006). A jury trial was scheduled
for February 2008; however, in January 2008, over two years
after the close of discovery, the District produced supplemental
discovery and argued that it should be permitted to file a new
motion for summary judgment based in part on the newly-disclosed
evidence. Def.’s Proposal for Proceeding (ECF No. 77). During
the same time period, the District brought to the Court’s
attention authority from other district judges and argued for
the first time that Plaintiff failed to exhaust his
administrative remedies. See, e.g., Def.’s Notices of Suppl.
Auth. (ECF Nos. 89, 90) (citing Washington v. District of
Columbia, 538 F. Supp. 2d 269 (D.D.C. 2008); Hoey v. District of
Columbia, 540 F. Supp. 2d 218 (D.D.C. 2008)). Plaintiff, for his
part, moved for sanctions based on discovery abuses by the
District. Pl.’s Mot. for Sanctions (ECF. No. 82).
In April 2008, the Court denied Defendant’s motion to file
a new summary judgment motion based on the newly-discovered
evidence, granted in part Plaintiff’s motion for discovery
sanctions, and ordered the parties to brief two issues: the
appropriate amount of attorneys’ fees to be awarded Plaintiff in
view of his successful motion for sanctions, and the exhaustion
6
issue.1 Minute Order, Apr. 7, 2008. The supplemental briefing
on the exhaustion issue was informed in part by submissions of
supplemental authority regarding other cases, similar to this
one, in which MPD Commanders challenged their demotions to
Captains without due process of law in the District’s
administrative agencies and state courts. See, e.g., Def.’s
Notices of Suppl. Auth. (ECF Nos. 112, 114). In May 2009, the
Court denied defendant’s motion for summary judgment on
exhaustion grounds without prejudice and, based on the parties’
representations that they wished to file yet more dispositive
motions, set a briefing schedule for renewed cross motions for
summary judgment. Minute Order May 14, 2009. Meanwhile, the
parties continued to file notices of supplemental authority as
other cases filed by other demoted Commanders proceeded through
the District’s judicial system. See, e.g., Parties’ Notices of
Suppl. Auth. (ECF Nos. 136, 137, 138, 139).
In 2010, the District moved for a stay of proceedings until
two of these other cases, Hoey and Burton, were finally resolved
by the District of Columbia Court of Appeals. The District
acknowledged that the governing statute had changed between Mr.
1
The parties fully briefed Plaintiff’s motion for
attorney’s fees, and the Court granted the motion, but deferred
a determination on the amount of fees. The fees issue is
addressed at Section III.C, infra.
7
Fonville’s demotion in 1999 and Mr. Hoey and Mr. Burton’s
demotions in 2007 and 2008. However, the District argued that
the changes were irrelevant to the question before the Court: in
all relevant respects, the District argued, the statutory
provisions were identical. Def.’s Reply in Support of Mot. to
Stay at 2-5 (ECF No. 144). Therefore, the District argued the
District of Columbia Court of Appeals decisions would be
“critical to the proper disposition of this case.” Id. at 7.
This Court agreed that the case should be stayed, finding
“striking similarities between the governing law in this case
and in Hoey and Burton,” and in view of the high degree of
deference the District of Columbia Court of Appeals is entitled
to from the federal courts in determining matters of local law.
Mem. Order Staying Case, Feb. 28, 2011 (ECF No. 147).
The District of Columbia Court of Appeals issued a single
decision resolving the Hoey and Burton cases on November 3,
2011. After analyzing the relevant provisions of the D.C. Code,
the legislative history, and the regulations, the Court of
Appeals found that Mr. Hoey and Mr. Burton had no property
interest in their Commander positions, and even though they were
Career Service employees, could be demoted to Captain without
cause and without notice or a hearing. Burton v. Office of
Employee Appeals, et al., and Hoey v. Office of Employee
Appeals, et al., 30 A.3d 789 (D.C. 2011) (hereinafter “Burton”).
8
The appeals became final in February 2012, and in late 2012, the
Court granted the parties leave to file supplemental memoranda
in support of their motions for summary judgment. The motions
are now ripe for decision by the Court.
II. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment is appropriate when the moving party
demonstrates that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Moore v. Hartman, 571
F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of
material fact, the nonmoving party must demonstrate—through
affidavits or other competent evidence, Fed. R. Civ. P.
56(c)(1),—that the quantum of evidence “is such that a
reasonable jury could return a verdict for the nonmoving party.”
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson, 477 U.S. at 248). In ruling on a motion for summary
judgment, the Court views all facts in the light most favorable
to the nonmoving party. Keyes v. District of Columbia, 372 F.3d
434, 436 (D.C. Cir. 2004). A nonmoving party, however, must
nevertheless provide more than “a scintilla of evidence” in
support of its position, and conclusory, speculative, or “not
9
significantly probative” evidence is insufficient to survive
summary judgment. See Anderson, 477 U.S. at 249.
B. Motion for Reconsideration
“[T]here is no Federal Rule of Civil Procedure that
expressly addresses motions for reconsideration.” Clark v.
Feder, Semo & Bard, P.C., 736 F. Supp. 2d 222, 224 (D.D.C.
2007). Because the Court’s Order of August 22, 2006 denying the
District’s motion for summary judgment is interlocutory,
however, the District’s renewed motion for summary judgment can
properly be characterized as a motion for reconsideration under
Rule 54. See Musick v. Salazar, 839 F. Supp. 2d 86, 93 (D.D.C.
2012); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other
decision . . . that adjudicates fewer than all the claims . . .
may be revised at any time before the entry of a judgment
adjudicating all the claims[.]”). “The Court has broad
discretion to hear a motion for reconsideration brought under
Rule 54(b), . . . and reconsideration is appropriate as justice
requires[.]" Clark, 736 F. Supp. 2d at 225 (quotations and
citations omitted).
III. DISCUSSION
A. The Burton Decision Is Controlling As to Count One of
the Complaint; Accordingly, Mr. Fonville Has No
Property Interest in His Commander Position
The District argues that the Burton decision changed the
controlling law since the Court denied its motion for summary
10
judgment on Count One of the Complaint in 2006, and therefore
justice requires that the Court reconsider that decision.
Def.’s Suppl. Mem. in Support of Summ. J. (ECF No. 155). The
Court agrees, and therefore grants the District’s motion for
reconsideration.
In Burton, the Court of Appeals traced the history of the
statutory provisions providing the District’s Commissioner
(later called Mayor) or the Chief of Police,2 with the authority
to unilaterally return certain high-ranking police officers to
the rank of Captain. Burton, 30 A.3d at 792-94. In the 1970s,
D.C. Code § 4-103 provided, in relevant part:
[T]hat the assistant superintendents and inspectors shall
be selected from among the captains of the force and shall
be returned to the rank of captain when the Commissioner so
determines.
D.C. Code § 4-103 (1973).
Likewise, D.C. Code § 4-104, which was in effect when Plaintiff
was demoted, provided in pertinent part:
[T]hat the Assistant and Deputy Chiefs of Police and
Inspectors shall be selected from among the captains of the
force and shall be returned to the rank of captain when the
Mayor so determines.3
2
In an order issued on May 9, 1997, the Mayor delegated his
personnel authority under these provisions to the Chief of
Police. Burton, 30 A.3d at 792 n.5 (citing Mayor’s Order 97-88,
44 D.C. Reg. 2959-60 (May 16, 1997)).
3
This section was recodified in 2001 as § 5-105. Burton, 30 A.3d
at 793, n.8. Likewise, § 1-633.3(1)(B), discussed infra, was
recodified in 2001 as § 1-632.03(a)(1)(B). For the purposes of
11
D.C. Code § 4-104 (1981).
As the Burton court observed, these provisions must be read
in tandem with the Comprehensive Merit Personnel Act (“CMPA”),
which was enacted in 1978 and provides many Career Service
employees with job related protections, including protection
from demotion without due process. Burton, 30 A.3d at 791-92;
see also D.C. Code § 1-616.52(b). When the CMPA was enacted, it
curtailed the authority of the Mayor and the Chief of Police to
return high ranking officials to Captain at will “with respect
to officers hired after the CMPA went into effect.” Burton, 30
A.3d at 793 (emphasis added) (citing D.C. Code § 1-633.3(1)(B)
(1981), enacted as part of the CMPA, which provided that § 4-103
and § 4-104 “shall not apply to police officers . . . appointed
after the date that this chapter becomes effective”). The Court
of Appeals emphasized this distinction between police officers
hired prior to the enactment of the CMPA and those hired
subsequent to its enactment by repeating the point as follows:
“For the next twenty years [after the CMPA was enacted], no
statute authorized the Mayor or the Chief of Police to return
police officials above Captain (and hired after the CMPA went
into effect) to the rank of Captain without cause.” Burton, 30
A.3d at 793 (emphasis added). “D.C. Code § 4-104 (1981), []
this decision, the relevant Code sections are the section
numbers in effect when Plaintiff was demoted in 1999.
12
pursuant to § 1-633.3(1)(B), did not apply to officers hired
after the CMPA’s effective date.” Id. (emphasis added). Of
critical importance in this case, Mr. Fonville was hired on
February 14, 1972, several years before the CMPA was enacted.
Section 4-103, later § 4-104, was therefore not repealed by the
CMPA as to him.
The Burton court also held, as a matter of law, that the
language of § 4-1044 applies to the position of Commander, 30
A.3d at 797, notwithstanding the fact that “Commander” does not
appear in the statute’s list of positions (Assistant Chiefs,
Deputy Chiefs, and Inspectors) whose occupants may be summarily
returned to the rank of Captain. See D.C. Code § 4-104 (1981).
The Court of Appeals explained:
The titles listed have changed over the years as positions
were renamed and new ranks were added, but the provision
appears to have consistently covered those positions above
the rank of Captain. . . . It is uncontested that
Assistant Chiefs outrank Commanders, who, in turn, outrank
Inspectors. It would have been illogical for the [D.C.]
Council to provide the Mayor or his delegee with the
authority to return Assistant Chiefs and Inspectors, the
ranks immediately above and below Commanders, to the rank
of Captain, but not to grant that same authority with
respect to Commanders. The better interpretation is that
[the successor, and identical, provision to § 4-104]
applies alike to Inspectors, Commanders, and Assistant
Chiefs of Police.
4
The Court of Appeals interpreted the successor provisions to §
4-104, which the Court noted were “identical” to that provision
in all relevant respects, and further noted that the substance
of the provision had “historical roots going back to 1919.” 30
A.3d at 797.
13
Burton, 30 A.3d at 797-98 (internal citations omitted).
Mr. Fonville argues that Burton does not apply to his case
for three principal reasons: first, because it interpreted the
successor provisions to § 4-104, not § 4-104; second, because
the decision is “fatally flawed;” and third, because Mr.
Fonville’s Commander position was different than Mr. Burton and
Mr. Hoey’s Commander positions, and the factual differences
compel a different outcome in this case. See Pl.’s Suppl. Brief
(ECF. No. 156). Unfortunately for Mr. Fonville, he cannot avoid
the dispositive impact of Burton.
Plaintiff first argues that Burton does not apply to him
because Mr. Burton and Mr. Hoey were demoted pursuant to D.C.
Code § 1-608.01(d-1), a successor statute to § 4-104. This
argument is without merit. As discussed supra at note 4, the
statutes are identical in all relevant respects. Moreover, the
Burton court specifically addressed the relationship between §
4-104 and the CMPA, and found the CMPA’s protections do not
apply to officers hired before its effective date with respect
to § 4-104. Applying Burton to the facts of this case compels
the conclusion that when Mr. Fonville was demoted in 1999, he
was not protected under the CMPA because he had been hired as a
police officer before it was enacted. See Burton, 30 A.3d at
793-94.
14
Mr. Fonville’s claim that Burton was wrongly decided, and
therefore should not be followed by this Court, Pl.’s Suppl.
Brief at 5-8, is also not persuasive. Federal courts owe
particular deference to interpretations of state law announced
by the highest court of a state. “A State’s highest court is
unquestionably the ultimate exposito[r] of state law.” Riley v.
Kennedy, 553 U.S. 406, 425 (2008) (citation and internal
quotation marks omitted); see also Minn. v. Clover Leaf Creamery
Co., 449 U.S. 456, 485 n.9 (1981) (Stevens, J. dissenting)
(“This Court will defer to the interpretation of state law
announced by the highest court of a State even where a more
reasonable interpretation is apparent, a contrary conclusion
might save a state statute from constitutional invalidity, or it
appears that the state court has attributed an unusually
inflexible command to its legislature.”) (citations omitted).
Nothing in Plaintiff’s submissions provides a basis for the
Court to depart from this bedrock principle of federalism.
Plaintiff’s third argument – that his Commander position
was different than Burton’s and Hoey’s Commander positions, and
the factual differences permit this Court’s 2006 decision to
survive Burton - is also unpersuasive. This Court’s 2006
decision was a very narrow one: the old Deputy Chief position
listed in the text of § 4-104 was not “equivalent” to Mr.
Fonville’s specific Commander position, and therefore § 4-104
15
could not be read to encompass him. Fonville, 448 F. Supp. 2d
at 27-28. The Burton decision is much broader. The Court of
Appeals examined the legislative history and policy
determinations underlying § 4-104, its predecessors and its
successors. See Burton, 30 A.3d at 791-94, 797-98. The Burton
court acknowledged that neither § 4-104, nor its predecessors or
successors included Commanders in the list of positions from
which officers could be demoted at will. The court did not find
that fact dispositive, however. “The literal words of a
statute, however, are not the sole index to legislative intent,
but rather, are to be read in the light of the statute taken as
a whole, and are to be given a sensible construction and one
that would not work an obvious injustice. . . . The statutory
meaning of a term must be derived from a consideration of the
entire enactment against the backdrop of its policies and
objectives.” Id. at 792 (internal quotation marks and citations
omitted). After careful review, the Court of Appeals determined
that application of the statute did not hinge on whether
specific duties associated with particular titles or ranks
remained constant over time. Rather, the Court of Appeals
concluded that although “the titles [] changed over the years .
. . and new ranks were added,” § 4-104, its predecessors and its
successors “consistently covered those positions above the rank
of Captain.” Id. at 797. The Burton court’s decision therefore
16
clearly extends to Mr. Fonville’s former position as Commander,
and controls the outcome in this case.
Burton conclusively establishes that, as a matter of law,
§ 4-104 applies to all Commander positions. It is undisputed
that Mr. Fonville was promoted from Captain to Commander, which
was above the Captain and the Inspector positions both in rank
and in pay. See Fonville Dep. at 60-61; see also Pl.’s
Opp’n/Cross Mot. at Ex. 18. Section 4-104, with its provision
authorizing the Chief to return high-ranking members of the
force, including Commanders, to the rank of Captain without
notice or cause, therefore applied to Plaintiff throughout his
tenure with MPD. Accordingly, the District’s motion for summary
judgment on Count One of the Complaint is GRANTED, and
Plaintiff’s motion for summary judgment on Count One is DENIED.
B. Plaintiff’s Reputation-Plus Claim
The District also asks the Court to reconsider its 2006
decision denying the District’s motion for summary judgment on
the Plaintiff’s liberty interest claim. See Def.’s Renewed
Summ. J. Mot. 24-29 (ECF No. 119); Def.’s Reply at 1-2, 23-33
(ECF No. 126). In its previous order, the Court found that
there were genuine issues of material fact in dispute. See
Fonville, 448 F. Supp. 2d at 28-29. Upon further consideration,
and having reviewed again the entire record in the case, the
Court concludes that there are in fact no genuine issues of
17
material fact in dispute. The Court will therefore grant the
District’s motion for reconsideration and consider again its
motion for summary judgment.5
A claim for deprivation of a liberty interest without due
process based on allegedly defamatory statements of government
officials in connection with a demotion may proceed on one of
two theories: a “reputation-plus” claim or a “stigma or
disability” claim. See O’Donnell v. Barry, 148 F.3d 1126, 1140
(D.C. Cir. 1998). Plaintiff only proceeds on the reputation-
plus theory. Pl.’s Opp’n/Cross Mot. at 27. A reputation-plus
claim requires “the conjunction of official defamation and
adverse employment action . . . [including] a demotion in rank
and pay.” O’Donnell, 148 F.3d at 140.
Plaintiff claims that Chief Ramsey’s statements to the
Washington Post and Washington Times regarding his demotion were
“defamatory,” they “deprived Plaintiff the liberty to pursue his
chosen profession,” and they resulted in “loss of income and
other employment benefits and damage to his professional
reputation.” Compl. ¶¶ 30-31. The District makes two principal
5
Plaintiff argues that the Court should be bound by the law of
the case doctrine, and therefore should not revisit its 2006
determination regarding his liberty interest claim. Pl.’s
Opp’n/Cross Mot. at 25-27 (ECF Nos. 122-23). Based on the
precedent of this Circuit, however, “[i]nterlocutory orders are
not subject to the law of the case doctrine and may always be
reconsidered prior to final judgment.” Langevine v. Dist. of
Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997).
18
arguments in its renewed summary judgment motion. First, it
argues that Chief Ramsey’s statements were not false and
therefore do not constitute defamation as a matter of law.
Second, the District argues that even if the statements were
sufficient to support a common law defamation claim, they did
not carry “the sort of opprobrium sufficient to constitute a
deprivation of liberty.” Harrison v. Bowen, 815 F.2d 1505, 1518
(D.C. Cir. 1987); see also Def.’s Renewed Summ. J. Mot. at 26,
28, Def.’s Reply at 24-29. The Court considered only the second
of these arguments in its 2006 memorandum opinion denying
summary judgment; it considers both now.
1. Plaintiff Does Not Show Chief Judge Ramsey’s
Statements Are False
To prevail on his defamation claim under District of
Columbia law, Mr. Fonville must show, first, that Chief Ramsey
made a false statement. Oparaugo v. Watts, 884 A.2d 63, 76
(D.C. 2005). “The burden of proving falsity rests squarely on
the plaintiff. He or she must demonstrate either that the
statement is factual and untrue, or an opinion based implicitly
on facts that are untrue.” Lane v. Random House, 985 F. Supp.
141, 151 (D.D.C. 1995); see also Rosen v. Am. Israel Pub.
Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012) (“statements
of opinion can be actionable if they imply a provably false
fact, or rely on stated facts that are provably false.”)
19
(citations omitted). “Truth is an absolute defense to [a]
defamation claim[], and a defendant may attack the falsity prong
of a plaintiff’s claim by demonstrating the substantial truth of
the allegedly defamatory statement.” Edmond v. Am. Educ.
Servs., 823 F. Supp. 2d 28, 35 (D.D.C. 2011) (citations
omitted). “‘Substantially true’ means that the ‘gist’ of the
statement is true or that the statement is substantially true,
as it would be understood by its intended audience.” Benic v.
Reuters Am., Inc., 357 F. Supp. 2d 216, 221 (D.D.C. 2004)
(citations omitted). “In other words, literal truth is not
required, and a showing of the truth of the ‘gist’ or ‘sting’ of
the allegedly defamatory imputation is sufficient.” Jolevare v.
Alpha Kappa Alpha Sorority, Inc., 521 F. Supp. 2d 1, 13-14
(D.D.C. 2007) (quotation marks and citations omitted).
Chief Ramsey’s statements at issue are that Plaintiff
engaged in “unacceptable behavior,” which “was not consistent
with what [he] expected from a command member of [his] staff.”
Pl.’s Opp’n/Cross Mot. Ex. 11. Plaintiff claims that these
statements “were based on an incomplete picture of the facts or
an erroneous assessment of the facts.” Pl.’s Opp’n/Cross Mot.
at 30 (citing Ex. 11). The crux of Plaintiff’s argument is that
IAD did not find that his actions and conduct were “unbecoming
of an MPD officer,” and therefore Chief Ramey’s statement that
he engaged in unacceptable behavior implies a false assertion of
20
fact. Id. Plaintiff misstates Chief Ramsey. The Chief did not
say that Plaintiff’s conduct was unbecoming of a police officer;
he said his conduct during the incident was “unacceptable” and
“not consistent with what I expect from a command member of my
staff.” Pl.’s Opp’n/Cross Mot. Ex. 11 (emphasis added).
Accordingly, Plaintiff must demonstrate that this statement of
opinion implies a provably false assertion of fact. He has not
done so.
Mr. Fonville does not dispute that Chief Ramsey learned of
his conduct as a result of the IAD investigation, and relied on
it in making his determination to demote Plaintiff. Def.’s SMF,
¶¶ 6, 8 (ECF. No. 119); Pl.’s SMF ¶ 12 (Doc. 123); Def.’s Suppl.
SMF ¶¶ 8, 10 (ECF. No. 126). He does not dispute that the IAD
conducted a thorough investigation of the facts and
circumstances; indeed, Plaintiff relies on that report in
arguing that he should not have been demoted. Pl.’s Opp’n/Cross
Mot. at 30-31.
The IAD report concludes that Plaintiff precipitated
contact with the FPS officer by parking illegally. Pl.’s
Opp’n/Cross Mot. Ex. 8 (hereinafter “IAD Report”). The report
also concludes that Plaintiff failed to carry his service weapon
and badge in his possession while in the District, in violation
of the Municipal Regulations. Id. With respect to the incident
itself, the IAD report contains four statements from
21
eyewitnesses to the incident. It is highly significant that
none of the witnesses were participants in the incident, nor
were they officers of the MPD or the FPS, nor did they know
either Mr. Fonville or the FPS officer involved. While the
witnesses did not describe Plaintiff’s behavior as criminal,
each and every one made at least one negative comment regarding
Plaintiff’s conduct.
ATF Special Agent Chris Pelletiere stated that Plaintiff
“would not comply with any of those instructions” issued by the
FPS officer, and described Plaintiff’s actions as
“argumentative,” and “belligerent.” Id. at 4; see also IAD
Report Attachments, Pl.’s Opp’n/Cross Mot. Ex. 14 (ECF. No. 122-
14). ATF Special Agent Lewis Raden described Plaintiff’s
conduct as “resisting” and “not cooperating” with the FPS
officer’s commands. IAD Report at 4; see also IAD Report
Attachments, Pl.’s Opp’n/Cross Mot. Ex. 15 (ECF No. 122-15).
Retired ATF Special Agent Willie Ellison stated that Plaintiff’s
actions were “not what he would have deemed appropriate for a
commander in the police department.” Id. Finally, Special
Police Officer John Robinson stated that after the initial
interaction between Plaintiff and the FPS officer, he saw
Plaintiff “attempt to pull away, and the FPS officer stop[ped]
him by use of siren and lights . . . Commander Fonville exit[ed]
his car very irate . . .” IAD Report at 5-6; see also IAD
22
Report Attachments, Pl.’s Opp’n/Cross Mot. at Ex. 15 (ECF No.
122-15).
In his deposition, Chief Ramsey testified that that these
statements were the basis for his opinion concerning the
Plaintiff’s conduct:
Q: So the allegations of assault [that Plaintiff assaulted
the FPS officer] were not a critical component in your decision
to demote Mr. Fonville?
A: The allegation was just one part of the entire scenario
that was being painted by the officer and the witnesses that
were present that day.
Q: And my question to you is how did that figure into your
decision to demote him? Did you consider that to be one of the
critical parts or not?
[OBJECTIONS]
A: No.
Q: What was the most critical component in your mind of the
incident that led you to demote him?
[OBJECTIONS]
A: The overall conduct and the way he dealt with the
situation with the officer in a confrontational manner, which I
thought was uncalled for.
Q: So, to you it wouldn’t matter if [Plaintiff] was
wrongfully stopped [by the FPS officer]?
[OBJECTIONS]
A: I believe the issue again of whether or not the stop was
proper or whether or not the officer had the legal authority to
issue a citation is secondary to the conduct displayed by Mr.
Fonville at the time. I think he exercised poor judgment and
poor self-control in the way in which he conducted himself in a
situation like that . . . .
Q: Did you consider the fact that [IAD] did not find that
he had engaged in conduct unbecoming?
23
A: [IAD] was conducting an investigation into
allegations, specific allegations, of misconduct. I certainly
read that report. I was looking at not only that, but with the
overall conduct and behavior of a member of my Command staff and
found that I didn’t want him serving any longer in that
capacity.
Ramsey Dep. 155-158 (ECF No. 127-4).
In sum, it is undisputed that Plaintiff was demoted after
Chief Ramsey determined his conduct during the incident was not
consistent with his expectations of a command member of his
staff. As set forth in Section III.A above, Chief Ramsey had
complete discretion to demote Plaintiff in accordance with the
D.C. Code. Plaintiff has failed to demonstrate that any of the
statements Chief Ramsey relied upon were verifiably false, or
that they did not support his conclusion that Mr. Fonville
exhibited behavior that was not consistent with his expectations
of his command staff. Plaintiff’s own uncorroborated testimony
about the incident, in which he denies behaving in a
confrontational manner or exhibiting poor judgment, is not
enough to create a genuine issue of fact, particularly in light
of the contrary testimony of all four eyewitnesses interviewed
by the IAD. See Bowyer v. Dist. of Columbia, 910 F. Supp. 2d
173, 190 (D.D.C. 2012) (where non-moving parties rely almost
entirely upon their own uncorroborated statements at the summary
judgment stage, it may be “insufficient to establish a triable
issue of fact-at least where the nature of the purported factual
24
dispute reasonably suggests that corroborating evidence should
be available.”) (internal quotations omitted). Accordingly,
Plaintiff has not raised a genuine issue of material fact as to
the falsity element of his defamation claim and summary judgment
is therefore appropriate. See Jolevare, 521 F. Supp. 2d at 14(granting summary judgment for defendant on defamation claim
where plaintiffs did not “raise[] a genuine issue of material
fact as to the falsity of the organization’s publication of
their suspensions for engaging in what the sorority properly
concluded amounted to hazing.”).
2. Even if The Statements Were Defamatory, They Do Not
Violate Plaintiff’s Liberty Interests
Even assuming Chief Ramsey’s statements were false and
defamatory, Mr. Fonville’s liberty interest claim cannot succeed
because the statements do not carry “the sort of opprobrium
sufficient to constitute a deprivation of liberty.” Harrison,
815 F.2d at 1518. Summary judgment is therefore warranted for
this additional reason.
In this Circuit, a reputation-plus claim cannot be based on
defamation related to a plaintiff’s job performance. Rather, to
implicate constitutional interests under the reputation-plus
theory, the government’s defamation must “call into serious
question those personal characteristics that are central or
enduring in nature,” such as “accusations of dishonesty, the
25
commission of a serious felony, manifest racism, serious mental
illness, or a lack of intellectual ability.” Alexis v. Dist. of
Columbia, 44 F. Supp. 2d 331, 339 (D.D.C. 1999); see also
Mazaleski v. Truesdell, 562 F.2d 701, 714 (D.C. Cir. 1977). In
the 2006 opinion, the Court concluded that Chief Ramsey’s
statements suggest Plaintiff was “‘inherently incapable’ of
performing his duties” and “were certainly capable of
stigmatizing plaintiff,” and denied the District’s summary
judgment motion on that basis. Fonville, 448 F. Supp. 2d at 29.
Upon careful review of the caselaw, the Court concludes that
reconsideration is warranted, and that the statements do not
violate Plaintiff’s constitutional rights.
Both this Circuit and the District of Columbia Court of
Appeals have made plain that “not every governmental allegation
of professional incompetence implicates a liberty interest . . .
allegations [infringe constitutional interests] only when they
denigrate the employee’s competence as a professional and impugn
the employee’s professional reputation in such a fashion as to
effectively put a significant roadblock in that employee’s
continued ability to practice his or her profession.” Leonard
v. Dist. of Columbia, 794 A.2d 618, 627-28 (D.C. 2002) (citation
omitted); see also Mazaleski, 562 F.2d at 714 (explaining that
although many allegations in connection with an adverse
employment action “might well interfere with . . . opportunities
26
for subsequent employment,” this does not mean they are “of such
a serious and derogatory nature as to require due process
protection.”).
In Mazaleski, the Circuit court examined the difference
between statements sufficient to infringe a plaintiff’s liberty
interest and statements that, although disparaging or insulting,
do not. 562 F.2d at 714. The Circuit court concluded that
statements indicating that an employee was terminated or demoted
for dishonesty, for criminal conduct, for mental illness, and
for lack of intellectual ability, as distinct from performance,
did affect a plaintiff’s liberty interest. Id.; see also
Leonard, 794 A.2d at 628 (finding that a statement that
employees lack the skills to perform the functions of their jobs
implies an “inherent incapability” “carries more potential for
future disqualification from employment than a statement that
the individual performed a job poorly” and is therefore
actionable). On the other hand, statements that an employee was
demoted or fired for “disruptive conduct,” “improper and
substandard job performance,” failure to meet minimum standards
in professional relationships, “highly unethical” professional
conduct, “unsatisfactory performance,” and “deficiencies in . .
. professional conduct,” do not violate an employee’s
constitutional rights. Mazaleski, 562 F.2d at 714 (collecting
cases).
27
More recently, in Holman v. Williams, the plaintiff was
fired from his position in the D.C. government. An
administration official made a statement to the Washington Post
that Mr. Holman was terminated because of his “inability to get
along with staff . . . The office was up in arms. It was total
chaos.” Holman, 436 F. Supp. 2d 68, 72 (D.D.C. 2006). The
Court granted the defendants’ motion to dismiss plaintiff’s
reputation-plus claim, finding that the statements “speak only
to plaintiff’s job performance, rather than to any enduring
defect in [his] personality, character or intellect.” Id. at
79.
In the present case, Chief Ramsey’s statements relate to
plaintiff’s “unacceptable” behavior, during a single incident in
which he lost his temper and exercised poor judgment, which did
not meet Ramsey’s expectations for his command staff. These
statements are much like those found constitutionally
permissible in Mazaleski; they describe a lapse in professional
conduct, not an inherent personal trait. The fact that
Plaintiff was off-duty during the incident is not dispositive in
this case. As the District notes, there are laws that regulate
its police officers’ conduct both on and off duty. Def.’s
Renewed Summ. J. Mot. at 28, see also, e.g., D.C. Mun. Regs.
tit. 6-A, § 206.1 (requiring MPD officers to have their service
weapons and badge in their possession while in the District of
28
Columbia); D.C. Mun. Regs. tit. 6-A, § 202.1 (“a member of the
force shall at all times . . . maintain decorum and command of
temper; be patient and discreet . . .”); Dist. of Columbia v.
Coleman, 667 A.2d 811, 818 n.11 (D.C. 1995) (“members of the
police force are ‘held to be always on duty’ [in the District]
and are required to take police action when crimes are committed
in their presence.”) (citations omitted). In sum, Chief
Ramsey’s statements suggest a “situational rather than an
intrinsic difficulty,” and not “an inherent or at least a
persistent personal condition, which both the general public and
a potential future employer are likely to want to avoid.”
Harrison, 815 F.2d at 1518. They are therefore insufficient to
constitute a deprivation of Plaintiff’s liberty as a matter of
law. Mazaleski, 562 F.2d at 714; Leonard, 794 A.2d at 627-28.
Accordingly, for this additional reason, summary judgment on
Count Two of the Complaint will be GRANTED for the defendant.
C. Motion for Attorneys’ Fees
“Under Rule 37, the district court has broad discretion to
impose sanctions for discovery violations, and to determine what
sanctions to impose.” Tequila Centinela S.A. de C.V. v. Bacardi
& Co. Ltd., 248 F.R.D. 64, 68 (D.D.C. 2008). To determine the
proper amount of an attorneys’ fees award, the Court uses the
lodestar method, multiplying a reasonable hourly rate by a
reasonable number of hours expended. Cobell v. Norton, 231 F.
29Supp. 2d 295, 300 (D.D.C. 2002). The burden is on the moving
party to prove that the request is reasonable, and the Court has
discretion to adjust the fee award in view of the opposing
party’s objections. Tequila Centinela, 248 F.R.D. at 68.
In this case, the District failed to produce documents,
which the Court had ordered produced on July 25 2005, until
January 30, 2008, less than a month before trial was scheduled
to begin. Pl.’s Mot. in Limine (ECF No. 75). After a flurry of
additional proceedings relating in significant part to this
discovery violation, on April 7, 2008, the Court issued an order
awarding sanctions “in the form of costs, expenses and
attorneys’ fees that reasonably flow from the defendant’s
noncompliance” with the Court’s July 25, 2005 Order. Consistent
with the April 2008 Order, Plaintiff submitted documentation
supporting his fee request. Plaintiff requests $65,924.95 in
fees and expenses related to seven categories of work: 1) review
and analysis of the late-produced documents; 2) consultations
between Plaintiff’s two attorneys regarding the District’s non-
compliance; 3) drafting an initial motion for sanctions; 4)
preparation for and attendance at four status hearings in the
winter and spring of 2008; 5) drafting Court-requested
recommendations and responding to the District’s recommendations
for further proceedings regarding scheduling issues in winter
2008; 6) briefing Plaintiff’s renewed motion for sanctions; and
30
7) preparing the fee petition. For the following reasons, the
Court finds some of the fees requested to be excessive and
beyond the scope of the Court’s April 7, 2008 Order, and will
reduce them accordingly. The Court finds the remaining portions
of fee request reasonable and well supported and will therefore
award attorney’s fees.
1. Reasonable Rates
Plaintiff’s counsel request rates under the U.S. Attorney’s
Laffey rate for 2008 consistent with their years of experience:
$390/hour for Ms. Deak’s work and $440/hour for Mr. Williams’
work. The District does not challenge the reasonableness of
these rates, and the Court finds they are reasonable under the
law of this Circuit. See Covington v. Dist. of Columbia, 57
F.3d 1101, 1114 n.5 (D.C. Cir. 1995) (opining that “use of the
broad Laffey matrix may be by default the most accurate evidence
of a reasonable hourly rate.”).
2. Reasonable Hours
In support of the number of hours for which he seeks
compensation, Plaintiff’s two attorneys provide sworn
declarations with attached time logs reflecting the number of
hours expended on the seven tasks described above. See Pl.’s
Petition for Attorney Fees (“Fee Petition”), Ex. 1, Decl. of
Leslie Deak (“Deak Decl.”); Ex. A to Deak Decl; Ex. 2, Decl. of
Ted Williams (“Williams Decl.”), Ex. A to Williams Decl. (ECF
31
No. 93). The time logs are based on contemporaneously recorded
time entries for each attorney, edited to reflect only the
activities counsel deemed pertinent to the 2008 Sanctions Order.6
Deak Decl. ¶ 17; Pl.’s Reply in Support of Petition, Second Deak
Decl. ¶¶ 1-8 (ECF No. 101).
The District objects to many of the time entries for a
variety of reasons. First, it objects to the hours requested
for work related to the status hearings and the drafting of
recommendations to the court because neither the hearings nor
the recommendations solely related to the sanctions. Def.’s
Opp’n to Fee Petition at 13-14. Defendant also argues that the
hours billed for legislative history research are not
compensable, because Ms. Deak would have to complete this
research regardless of the sanctions issue. Id. at 11.
Plaintiff concedes that the status hearings and written
recommendations to the court did not focus only on sanctions
issues, but argues, without citation, that the Court should
award fees for “those tasks that lie outside the direct line
flowing from Defendant’s failure to comply [with the discovery
6
The District questions whether Ms. Deak kept contemporaneous
records. See Def.’s Opp’n to Fee Petition at 10 (ECF No. 98).
In light of Ms. Deak’s sworn declarations that she kept such
records and detailing how she did so, and the standardized time
records she produced, the Court finds the records sufficient “to
permit the . . . Court to make an independent determination
whether the hours claimed are justified.” Nat’l Assn. of
Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C.
Cir. 1982).
32
order] but still stay within a reasonable margin outside the
direct line.” Pl.’s Reply in Support of Fee Pet. at 8.
The Court agrees with Defendant. “As other courts in this
district have noted, a near ‘but for’ relationship must exist
between the Rule 37 violation and the activity for which fees
and expenses are awarded.” Beck v. Test Masters Educational
Services, 289 F.R.D. 374, 385 (D.D.C. 2013) (internal quotations
omitted); see also Westmoreland v. CBS, Inc., 770 F.2d 1168,
1179 (D.C. Cir. 1985) (requiring fees and expenses awarded to be
“incurred because of” the sanctioned violation); Cobell v.
Babbitt, 188 F.R.D. 122, 127 (D.D.C. 1999) (requiring a near
‘but for’ relationship where court ordered fees “caused by
defendants’ failure to obey” discovery orders). The language of
the Court’s April 7, 2008 order does not deviate from this
standard. It permits Plaintiff to seek fees “that reasonably
flow from the defendant’s noncompliance,” with the 2005
discovery order and states that Plaintiff should receive “fees
incurred as a result of defendant’s failure to comply” with that
order. Pl.’s Reply in Support of Fee Pet. at 8; see also April
7, 2008 Order. Accordingly, Plaintiff must establish that the
activity for which he seeks fees and expenses arose out of the
Rule 37 violation that the Court sanctioned.
Plaintiff concedes that “the fee petitions were not the
sole topic of discussion at status conferences.” Fee Petition
33
at 7. The status conferences concerned, inter alia, the
District’s request to file a new dispositive motion, which
“arose for two stated reasons, one of which was to provide it a
chance to raise arguments about the late-produced documents.”
Id. (emphasis added). Likewise, Plaintiff concedes that the
time spent preparing his recommendations to the Court regarding
scheduling issues and his response to defendant’s
recommendations arose “to give the parties an opportunity to
make arguments and proposals to the Court for the handling of
Defendant’s request to file a new dispositive motion.” Id. at
7-8. Again, that request was based partially, but not entirely,
on the late-produced documents. Id. Accordingly, because
Plaintiff has not established that these activities were solely,
or even primarily, focused on the sanctionable conduct, the
Court will deduct 25% of the time requested relating to the
status hearings and the recommendations. This reduction amounts
to a deduction of 9.34 hours for Ms. Deak and 5.875 hours for
Mr. Williams. Finally, Plaintiff does not respond to
defendant’s argument that the Court should deduct time Ms. Deak
spent researching legislative history because this research was
necessary “regardless of any sanctions related issue.” Opp’n to
Fee Petition at 11. The Court finds Plaintiff has not
demonstrated a fee award for legislative history research is
reasonable, and will therefore deduct 5.5 hours Ms. Deak
34
expended on that task. For the same reasons, the Court will
deduct 1.75 hours of Mr. Williams’ time conducting research for
Plaintiff’s yet-to-be-filed dispositive motion on April 27,
2008.
Next, the District objects to Plaintiff’s request for fees
for the time spent requesting a fee award against the District’s
counsel under 28 U.S.C. § 1927, because Plaintiff did not
prevail on this request. Plaintiff argues – without citation -
that “prevailing on an issue is not the standard. The section
of Plaintiff’s brief in the Motion for Sanctions still
reasonably flowed from Defendant’s failure to comply with the
2005 discovery order and, hence, is compensable.” Pl.’s Reply
at 11. Plaintiff’s position is not persuasive. “Attorney’s
fees are not recoverable for time [spent] on issues on which the
party seeking the fees did not ultimately prevail.” Tequila
Centinela, 248 F.R.D. at 71 (citations omitted). In this
matter, the single issue that was decided adversely to the
District was its non-compliance with the July 2005 discovery
Order. The Court rejected Plaintiff’s claims that the
District’s counsel should be separately sanctioned for
vexatiously multiplying the proceedings. Plaintiff spent
approximately one-fifth of his second sanctions brief and reply
on this unsuccessful argument. Accordingly, the Court will
35
deduct that amount from Plaintiff’s fee request. This reduction
amounts to a deduction of 8.464 hours for Ms. Deak.
Defendant’s remaining arguments consist mainly of
generalized claims that the billing entries are vague, the
attorneys engaged in impermissible block billing, and the hours
spent are duplicative and excessive. See generally Def.’s Opp’n
to Petition. For example, Defendant claims that all of the
requested fees should be reduced by 50% due to impermissible
block billing, see id. at 8, and claims, without support, that
Ms. Deak should have drafted Plaintiff’s reply in support of
sanctions in “no more than 5 billable hours.” Id. at 20.
Defendant also claims that the Plaintiff should not recover fees
for drafting the second sanctions motion because it was
“duplicative of the time spent to draft the first motion.” Id.
at 11. None of these arguments are persuasive.
Block billing refers to a single time entry that lists
multiple tasks, thus making it impossible to evaluate each
task’s reasonableness. See Role Models Am., Inc. v. Brownlee,
353 F.3d 962, 971 (D.C. Cir. 2004). The Court is satisfied with
the level of detail provided in the entries, and finds that,
with the exception of the specific reductions explained herein,
the Plaintiff’s attorneys expended a reasonable amount of time
in this matter. Accordingly, no reductions will be made based
on alleged “block billing.”
36
Defendant’s argument that Plaintiff should not recover fees
for drafting the second motion for sanctions is also without
merit. A cursory comparison of the two motions reveals that,
although there is some minor overlap between the two, the
Plaintiff’s second motion is much more thorough and more
detailed than the first, and also asserts, for the first time,
several additional bases for sanctions. See Reply in Support of
Fee Pet. at 24; compare Doc. No. 75 (nine page motion in limine
to exclude newly produced documents from trial) with Doc. No. 82
(thirty two page motion for sanctions pursuant to Fed. R. Civ P.
37, 16, and 28 U.S.C. § 1927). Likewise, the bare, unsupported
argument that Plaintiff should have taken five hours to draft
reply is without merit. Plaintiff’s reply was thorough and
substantive; and although his attorneys may have spent more time
on the reply than others would choose, “[t]he question for the
Court, however, is not whether the expense was necessary but
whether it was reasonable.” Beck, 289 F.R.D. at 385. Given the
District’s failure to provide the discovery to which Plaintiff
was entitled, and its failure to provide discovery specifically
ordered by the Court in its July 25, 2005 Order until less than
four weeks before trial, Plaintiff reasonably expended a number
of hours obtaining relief to which he was entitled.
Making the above noted reductions, the Court will award
Plaintiff $ 41,580.24 in fees for Ms. Deak’s work and
37
$ 11,899.80 in fees for Mr. Williams’ work which reasonably
flowed from the District’s non-compliance with this Court’s
Order of July 25, 2005. The District shall pay Plaintiff’s
attorneys fees of $53,480.04.
IV. CONCLUSION
For the foregoing reasons, it is hereby ordered that the
defendant’s renewed motion for summary judgment is GRANTED, and
it is further ordered that Plaintiff’s renewed cross motion for
partial summary judgment is DENIED. It is further ordered that,
in accordance with the Court’s Minute Order of March 23, 2009,
the Plaintiff is hereby awarded attorneys’ fees of $53,480.04.
An appropriate order accompanies this memorandum opinion.
SIGNED: Emmet G. Sullivan
United States District Judge
April 14, 2014
38