Kelsey v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMBER KELSEY,
Plaintiff,
Civil Action No. 13-1956 (BAH)
v.
Chief Judge Beryl A. Howell
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
The plaintiff, Amber Kelsey, brings this action under the Individuals with Disabilities
Education Act, as amended, 20 U.S.C. §§ 1400 et seq. (“IDEA”), against the District of
Columbia. See Compl. at 1, ECF No. 1. Pending before the Court is the plaintiff’s Motion for
Attorney’s Fees (“Pl.’s Mot.”), ECF No. 48. The Magistrate Judge to whom this motion was
randomly referred submitted a report recommending that the motion be granted in part and
denied in part, see Report and Recommendation, Oct. 7, 2016, 2015 (“R&R”), ECF No. 53, and
the plaintiff has timely filed a number of objections to that recommendation, see Pl.’s Objections
to the Report and Recommendation of the Magistrate Judge (“Pl.’s Objs.”), ECF No. 54. For the
reasons explained below, the plaintiff’s objections are sustained in part and overruled in part.
Accordingly, the plaintiff’s Motion for Attorney’s Fees is granted in part and denied in part.
I. BACKGROUND
The background of the present dispute has been described in the R&R and by this Court
in its two prior decisions involving this plaintiff. See Kelsey v. District of Columbia, 85 F. Supp.
3d 327, 330–32 (D.D.C. 2015); Clay v. District of Columbia, Mem. & Order, No. 09-1612
(D.D.C. April 24, 2013), ECF No. 59. In Clay, this Court ruled that the plaintiff “was denied a
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[Free Appropriate Public Education (“FAPE”)] by the defendant during the period between
March 19, 2007 and June 2008 because of the denial of speech therapy.” Clay, Mem. & Order at
32. Following that ruling, the case was remanded to a Hearing Officer to conduct “fact-finding
to establish the amount of speech and language therapy or other specialized instruction [the
plaintiff] was deprived in the period between March 19, 2007 and June 2008, and determine the
level of compensatory education services [she] requires to place her in the same position she
would have been but for DCPS’ IDEA violations during the period at issue.” Id. at 33. At the
conclusion of that hearing, the plaintiff was awarded ninety-six hours of speech language
services—approximately eight times the number of hours urged by the defendant. Kelsey, 85 F.
Supp. 3d at 331; see also AR at 20, ECF No. 16-1.
In December 2013, the plaintiff initiated the present action to challenge that award and to
recover the attorney’s fees incurred in the administrative proceeding. See Compl. ¶¶ 24–29. In
her substantive challenge to the Hearing Officer’s award, the plaintiff alleged that “the evidence
showed that she required 480 hours of Speech therapy.” Id. at 2. The plaintiff and the defendant
filed cross-motions for partial summary judgment on the plaintiff’s appeal of the award, see Pl.’s
Mot. Summ. J., ECF No. 24; Def.’s Opp’n Pl.’s Mot. Summ. J. & Cross-Mot. Summ. J., ECF
No. 27, and the Magistrate Judge recommended that the plaintiff’s motion be denied and the
defendant’s motion be granted, see Report and Recommendation, Jan. 13, 2015 (“Jan. 13, 2015
R&R”), ECF No. 32. This Court adopted that report over the plaintiff’s objections, thus denying
the plaintiff’s motion and granting the defendant’s motion. See Kelsey, 85 F. Supp. 3d at 337.
Following that decision, the plaintiff filed a motion for summary judgment on her request
for attorney’s fees in the amount of $46,597.50 as the prevailing party in the IDEA
administrative proceeding. See Pl.’s Mot. Summ. J. at 1, ECF No. 40. In opposing the plaintiff’s
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request, the defendant argued that the proposed billing rate of $450.00 per hour was
unreasonable and, in addition, that the overall award should be reduced by at least sixty percent
to reflect the plaintiff’s limited success. See Def.’s Mem. P. & A. at 1, 9, ECF No. 43. The
Magistrate Judge recommended that both motions be granted in part and denied in part. Report
and Recommendation, Mar. 18, 2016 (“Mar. 18, 2016 R&R”), at 1, ECF No. 46. Specifically,
while finding reasonable the requested billing rate of $450.00 per hour, the Magistrate Judge
recommended reducing the amount requested by the plaintiff by fifteen percent, to $39,607.45,
to account for “the disparity between the relief Plaintiff requested and the actual relief she was
awarded” in the underlying administrative proceeding. Id. at 12. The parties filed no objections
to the Magistrate Judge’s report, and this Court adopted it in its entirety, thus granting in part and
denying in part both motions. See Mem. & Order, Apr. 5, 2016, ECF No. 47.
In the present motion, the plaintiff seeks a so-called fees-on-fees award, requesting
reimbursement for attorney time expended that was “reasonably necessary” to prevail on her
request for attorney’s fees in connection with the administrative proceedings, as well as for fees
incurred in the present motion. Pl.’s Mem. P. & A. Supp. Pl.’s Mot. Attorney’s Fees (“Pl.’s
Mem.”) at 2–3, ECF No. 48. Specifically, the plaintiff sought reimbursement for (1)
“$70,200.00 in fees for attorney time expended through the date of the Court’s [March 31, 2015,]
Memorandum & Order,” comprising 157.2 of the 363.3 total hours expended in the course of this
action at a billing rate of $450.00 per hour, and (2) $4,230.00, comprising 9.4 hours of attorney
time at the same rate, for the preparation of the instant motion for fees-on-fees. Id. at 3.
The defendant opposed the plaintiff’s motion on the grounds that the plaintiff “seeks
compensation for hours spent on the unsuccessful appeal, and any award should be reduced to
account for Plaintiff’s degree of success on the merits of the first fees petition.” Def.’s Opp’n
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Pl.’s Mot. Attorney’s Fees & Costs (“Def.’s Opp’n”) at 1, ECF No. 50. The defendant
acknowledged that the plaintiff prevailed in the fees dispute, but pointed out that she did not
prevail on her substantive appeal of the Hearing Officer’s determination. Id. at 3. According to
the defendant, only 98.5 of the hours claimed by the plaintiff were expended for the fees dispute.
Id. at 8. Moreover, the defendant contended that “Plaintiff’s requested number of hours more
than triples the hours reasonably devoted to substantially the same tasks in other, very similar
litigation” and thus “the Court should reduce the number of hours to no more than 45 hours.” Id.
at 9. In reply, the plaintiff conceded 6.2 of the requested hours, which were expended during the
period from July 23, 2013, to February 3, 2014, and contested by the defendant. See Pl.’s Reply
Def.’s Opp’n Pl.’s Mot. Fees at 5–6, ECF No. 51.
The R&R recommends three adjustments to the plaintiff’s request for attorney’s fees,
resulting in a total award of $29,947.50. 1 R&R at 10. First, since the plaintiff “has not proffered
any evidence that the fee litigation in the matter was particularly complex or novel,” the R&R
recommends that “Plaintiff is not entitled to full Laffey” rates but instead the “compensable rate
. . . reduced by 50%, to $225.00 per hour.” R&R at 8. Second, the R&R recommends, in
addition to the plaintiff’s concession of 6.2 hours, that the number of hours expended during that
same period, from July 23, 2013, to February 3, 2014, be further reduced by fifty percent
because “Plaintiff’s efforts were expended in equal part, if not in large part, to further an
unsuccessful appeal of the [administrative proceeding].” Id. at 9. Finally, the R&R
“recommends that Plaintiff’s overall award be reduced by 15% for limited success at the remand
1
Minor discrepancies exist between the parties’ assertions regarding the amount of time expended. See
Def.’s Opp’n Pl.’s Objs. R&R at 4–5, ECF No. 56. Given that neither party objected to the hours used in the R&R,
those hours will be used to calculate the award here. See R&R at 9–10 & n.8. The R&R does not focus on the
plaintiff’s counsel’s travel time, which amounts to 2.4 hours expended on October 14, 2013, and February 11, 2014,
for which the plaintiff requested to be compensated at $225.00, see Pl.’s Mem. at 7–8, and the plaintiff’s suggested
values also will be used here.
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hearing stage in accordance with this Court’s findings in the original Report and
Recommendation and Memorandum and Order regarding attorneys’ fees.” Id. at 8.
II. LEGAL STANDARD
Motions for attorneys’ fees may be referred to a Magistrate Judge for a report and
recommendation, and any objections thereto are subject to de novo review by the district court.
FED. R. CIV. P. 54(d)(2)(D) (stating that a court “may refer a motion for attorney’s fees to a
magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter”); see also David v.
District of Columbia, 252 F.R.D. 56, 58 (D.D.C. 2008) (noting “the limited jurisdiction granted
by Congress to a magistrate judge in Federal Rules 54(d)(2)(D) and 72(b) to issue a
recommendation on a motion for attorneys’ fees”). Federal Rule of Civil Procedure 72(b)
provides that “[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to,” and “may accept, reject, or modify the
recommended disposition.” FED. R. CIV. P. 72(b)(3); see also LCvR 72.3(c) (“A district judge
shall make a de novo determination of those portions of a magistrate judge's findings and
recommendations to which objection is made . . . .”).
The IDEA provides that “the court, in its discretion, may award reasonable attorneys’
fees . . . to a prevailing party who is the parent of a child with a disability.” 20 U.S.C.
§ 1415(i)(3)(B)(i). Such fees must be “be based on rates prevailing in the community in which
the action or proceeding arose for the kind and quality of services furnished,” with no “bonus or
multiplier . . . used in calculating” a final IDEA fee award. Id. § 1415(i)(3)(C). This statutory
language makes plain that a prevailing party in an IDEA action may seek the award of attorneys’
fees that are “reasonable.” Id. § 1415(i)(3)(B)(i). The D.C. Circuit has developed a “three-part”
analysis for assessing whether a requested fee award is reasonable under federal statutes
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authorizing fee-shifting. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015). “First,
the court must determine the number of hours reasonably expended in litigation. Second, it must
set the reasonable hourly rate. Finally, it must determine whether use of a multiplier is
warranted.” Id. (internal citations and quotation marks omitted). 2 With regard to the proposed
hourly rate, the Court considers three sub-elements: “(1) ‘the attorney[’s] billing practices,’ (2)
‘the attorney[’s] skills, experience, and reputation’ and (3) ‘the prevailing market rates in the
relevant community.’” Id. (alterations in original) (quoting Covington v. District of Columbia,
57 F.3d 1101, 1107 (D.C. Cir. 1995)).
The availability of reasonable attorneys’ fees applies to fees incurred in IDEA litigation
both before administrative agencies and in federal court, as well as to fees incurred to vindicate a
plaintiff’s right to fees. Thus, the D.C. Circuit held in Kaseman v. District of Columbia that
“[p]arties who prevail at the administrative level can also recover fees-on-fees, as [the D.C.
Circuit’s] general rule is that the court may award additional fees for ‘time reasonably devoted to
obtaining attorney’s fees.’” 444 F.3d 637, 640 (D.C. Cir. 2006) (quoting Envtl. Def. Fund v.
EPA, 672 F.2d 42, 62 (D.C. Cir. 1982)). In allowing successful plaintiffs to obtain fees-on-fees,
the D.C. Circuit has emphasized that the availability of such awards “is essential to carrying out
Congress’ goal in including [fee-shifting] provision[s] in the first place.” Am. Fed’n of Gov’t
Emps., AFL–CIO, Local 3882 v. Fed. Labor Relations Auth., 994 F.2d 20, 22 (D.C. Cir. 1993).
Without them, a litigant would not be made “whole when she is wronged under a statute,” even
if she succeeds on the merits of her claim, and potential litigants might be discouraged from
bringing their claims because of the “costs of pursuing such suits.” Id. Consequently, “such fees
2
Since the IDEA prohibits application of any bonus or multiplier, see 20 U.S.C. § 1415(i)(3)(C), only the
first and second elements of this analysis are relevant in IDEA cases.
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are often necessary to fulfill the purposes of the statutory scheme on which the action is based.”
Id.
“The ‘fee applicant bears the burden of establishing entitlement to an award,
documenting the appropriate hours, and justifying the reasonableness of the rates.’” Eley, 793
F.3d at 100 (quoting Covington, 57 F.3d at 1107). Once an applicant meets this initial burden, a
presumption applies that the number of hours billed and the hourly rates are reasonable.
Covington, 57 F.3d at 1109 (citing Blum v. Stenson, 465 U.S. 886, 897 (1984)); see also Jackson
v. District of Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010) (citing Blackman v. District of
Columbia, 677 F. Supp. 2d 169, 172 (D.D.C. 2010)). At 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)).
While the IDEA authorizes the court to award reasonable attorneys’ fees “in its
discretion,” 20 U.S.C. § 1415(i)(3)(B)(i), the D.C. Circuit has observed, “notwithstanding the
apparently permissive language of the statute, the Supreme Court has interpreted similar
language in other fee-shifting contexts to mean that the prevailing plaintiff ‘should ordinarily
recover an attorney’s fee unless special circumstances would render such an award unjust.’”
Price v. District of Columbia, 792 F.3d 112, 114–15 (D.C. Cir. 2015) (quoting Newman v. Piggie
Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam)). A district court’s award of attorneys’
fees is reviewed for an abuse of discretion, Eley, 793 F.3d at 103 (citing King v. Palmer, 950
F.2d 771, 785 (D.C. Cir. 1991) (en banc)), and the D.C. Circuit will not upset such an award
“absent clear misapplication of legal principles, arbitrary fact finding, or unprincipled disregard
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for the record evidence,” id. at 103–04 (quoting Kattan ex rel. Thomas v. District of Columbia,
995 F.2d 274, 278 (D.C. Cir. 1993)).
III. DISCUSSION
The plaintiff raises objections to the following five recommendations in the R&R: (1) the
recommendation that the plaintiff’s attorney’s Laffey rate is $450.00 per hour, Pl.’s Objs. at 4;
(2) the recommended reduction of the plaintiff’s proposed billing rate from $450.00 to $225.00,
id.; (3) the characterization of 22.4 hours expended as spent “drafting the Complaint,” id. at 7;
(4) the recommended application of a fifty percent reduction in the number of hours expended
during the period July 23, 2013, to February 3, 2014, id. at 8–9; and (5) the recommended
application of a global reduction of fifteen percent to the fees-on-fees award, id. at 10. While
raising no objections if its own, the defendant opposes any substantive alteration to the R&R.
See Def.’s Opp’n Pl.’s Objs. R&R (“Def.’s Opp’n Pl.’s Objs.”), ECF No. 56. Each of the
plaintiff’s objections is considered seriatim below.
A. Reasonableness of the Plaintiff’s Proposed Hourly Rate
The plaintiff’s first two objections both relate to the hourly rate used to calculate her fees-
on-fees award. See Pl.’s Objs. at 4–5. First, the plaintiff notes the hourly rate of $450.00 she has
requested throughout this litigation, and which was previously found reasonable in this case, see
Mem. & Order, Apr. 5, 2016, is in fact lower than the rate dictated by the Laffey Matrix.
Specifically, she asserts that her attorney began practicing law in 1985 and, consequently, that
her rate of compensation under the Laffey Matrix is $568.00 per hour, not $450.00 as the R&R
indicates. Id. at 4. In addition, the plaintiff contends that the R&R errs in recommending a
reduction by half in the requested $450.00 rate in view of both the R&R’s earlier finding that the
plaintiff “had met her burden of proof, under Covington [v. District of Columbia, 57 F.3d 1101
8
(D.C. Cir. 1995)], with respect to counsel’s hourly rate” and the defendant’s accession to the
$450.00 per hour rate. Id. at 4. For its part, the defendant acknowledges its accession to the
plaintiff’s proposed hourly rate, but nevertheless contends, “That the District did not first raise
these issues does not negate the Court’s discretion to make determinations relevant to [the IDEA
fees provision].” Def.’s Opp’n Pl.’s Objs. at 4. With respect to the recommendation to reduce
the rate by half, the defendant notes that “[t]he Magistrate Judge appropriately . . . rel[ied] on
similar district court fees on fees decisions as evidence of the reasonable rate to be applied here.”
Id. at 3.
The plaintiff has the better of both arguments. As the plaintiff notes, the R&R states that
“Plaintiff’s pre-determined Laffey rate is $450.00 per hour,” citing the R&R submitted on the
original fee award. See R&R at 7 (citing Mar. 18, 2016 R&R at 11). In fact, however, as
acknowledged in the earlier R&R, the plaintiff’s proposed $450.00 rate is significantly below the
plaintiff’s attorney’s rate under any of the Laffey Matrices. See Mar. 18, 2016 R&R at 3 n.4.
Under the applicable 2015–2016 USAO Laffey Matrix,3 the plaintiff’s attorney’s Laffey rate is
$568.00 per hour for time expended in 2016 and $530.00 per hour for all other time currently
claimed by the plaintiff. See USAO Attorney’s Fees Matrix – 2015–2016 (“2015–2016 USAO
Laffey Matrix”) at 1, https://www.justice.gov/usao-dc/file/796471/download. Thus, the $450.00
per hour rate itself reflects a more than fifteen percent discount on the applicable Laffey rate.
Consequently, the R&R’s finding that “Plaintiff’s pre-determined Laffey rate is $450.00 per
hour” is rejected. R&R at 7.
3
This Court has found appropriate the application to pending requests for attorney’s fees of the current
Laffey Matrix rates for the level of an attorney’s experience at the time of billing. See Eley v. District of Columbia,
No. 11-309 (BAH), 2016 WL 4435187, at *11 (D.D.C. Aug. 22, 2016); Young v. Sarles, No. 14-1203 (BAH), 2016
WL 3747528, at *9–10 (D.D.C. July 11, 2016).
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Turning to the plaintiff’s objection to the R&R’s application of a fifty percent reduction
to the applicable Laffey rate, the report’s suggestion that an award for fees expended in fee
litigation must reduce by half an attorney’s full Laffey rate to be “reasonable” is also rejected.
The R&R’s conclusion that “Plaintiff is not entitled to full Laffey” rates and recommendation
that “Plaintiff’s compensable rate be reduced by 50%, to $225.00 per hour,” R&R at 8, finds
support in some decisions in this District. See, e.g., Means v. District of Columbia, 999 F. Supp.
2d 128, 136 (D.D.C. 2013) (adopting half the applicable Laffey rate after noting the defendant
did not dispute the reasonableness of the proposed rate); Garvin v. Gov’t of D.C., 910 F. Supp.
2d 135, 140 (D.D.C. 2012) (adopting half the applicable Laffey rate because “the litigation for
which the plaintiffs seek an award of attorneys’ fees does not concern complex issues regarding
the application of the IDEA, but is rather fairly straightforward litigation over an award of
attorneys’ fees under the IDEA’s fee-shifting provision”); Wright v. District of Columbia, 883 F.
Supp. 2d 132, 135 (D.D.C. 2012) (adopting half the applicable Laffey rate and noting “the
undersigned has previously held that ‘fee litigation is not complex federal litigation and does not
necessarily entail specialized expertise and experience’” (quoting Smith v. District of Columbia,
No. Civ.A.02-0373(AK), 2005 WL 914773, at *3 (D.D.C. Apr. 18, 2005))). Yet, as this Court
has noted previously, there exists “a lack of unanimity among judges on this Court regarding the
reasonable rate for attorneys’ fees stemming from IDEA litigation,” with some decisions
applying three-quarters of the Laffey rate, some adopting reductions proposed by the plaintiff,
and some applying full Laffey rates. Jones v. District of Columbia, No. 15-cv-155 (BAH), 153 F.
Supp. 3d 114, 128 & nn.8–11 (D.D.C. 2015). In recent cases, the predominant view has been to
apply full Laffey rates in IDEA fee litigation. See id. at 128 n.11 (citing cases); see also Flood v.
District of Columbia, No. 15-497 (BAH), 172 F. Supp. 3d 197, 219 (D.D.C. 2016).
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This lack of uniformity notwithstanding, relevant authorities support the conclusion that
the $450.00 per hour rate proposed by the plaintiff, acceded to by the defendant, and adopted by
this Court in its original award of attorney’s fees is reasonable. In Jones, this Court explained
that “a successful fee applicant seeking fees-on-fees [need not] demonstrate anew the
reasonableness of her proposed rate for time expended in her successful fee application.” 153 F.
Supp. 3d at 123. In view of the “‘essential’ role of fees-on-fees in ‘carrying out Congress’ goal
in including fee-shifting provisions,’” it makes little sense to impose “redundant barriers to
recovery of fees-on-fees” by requiring plaintiffs to litigate the reasonableness of their attorneys’
billing rates at each stage of IDEA litigation. Id. at 123–24 (quoting Am. Fed’n of Gov’t Emps.,
994 F.2d at 22). For this reason, to the extent the R&R recommends an adjustment to the
previously determined reasonable rate such that the plaintiff must now relitigate that issue, the
recommendation stands on shaky ground.
Moreover, the R&R’s finding that “traditional ‘fees-on-fees’ litigation is not the type of
‘complex federal litigation’ to which the Laffey rate applies” does not warrant adjusting the pre-
determined reasonable rate. R&R at 8. As this Court also explained in Jones, “the Supreme
Court recently reiterated that the purported complexity of a particular case generally may not
serve as a basis for adjusting an otherwise reasonable fee award.” 153 F. Supp. 3d at 124 (citing
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010)). According to the Perdue Court, the
relative complexity or simplicity of a case is “fully reflected in the number of billable hours
recorded by counsel.” 559 U.S. at 553. Consequently, “any consideration of the relative
complexity of the present fees litigation as compared to the plaintiff’s underlying administrative
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action is already incorporated into the reasonableness of the number of hours spent in litigating
her request for fees before this Court.” Jones, 153 F. Supp. 3d at 125. 4
Thus, the Court finds reasonable the $450.00 per hour rate, which rate reflects a
significant discount of the plaintiff’s counsel’s Laffey rate, and has been acceded to by the
defendant and deemed reasonable by this Court earlier in these proceedings. Accordingly, the
plaintiff’s objections to the Report and Recommendation’s rejection of the billing rate proposed
by the plaintiff and acceded to by the defendant are sustained, and that portion of the R&R is
rejected.
B. Time Spent “Drafting the Complaint”
The plaintiff next objects to the R&R’s characterization of 22.4 hours of counsel’s time
as spent “drafting the Complaint,” when, the plaintiff argues, only 6.9 hours were spent on that
task, with the remaining hours from that “time period . . . all spent on tasks essential to initiating,
pursuing and prevailing on Plaintiff’s successful fees claim.” Pl.’s Objs. at 7. The defendant
suggests that the R&R is best understood to characterize that time period as the “‘drafting and
filing the complaint’ phase.” Def.’s Opp’n Pl.’s Objs. at 4–5.
At first blush, this objection appears to be directed toward semantics and, consequently,
to lack legal significance. The gravamen of the plaintiff’s concern, however, appears to be that
by characterizing those hours as time spent only “drafting the Complaint,” the R&R understated
the proportion of those hours essential to the fee litigation upon which the plaintiff prevailed.
The question of the appropriate percentage reduction to be applied to counsel’s time spent during
this period will be addressed in the following section.
4
The separate question of the reasonableness of the number of hours requested by the plaintiff is addressed
in considering the plaintiff’s objections discussed below in Part III.C.
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C. Compensable Hours Expended from July 23, 2013, to February 3, 2014
The plaintiff objects to the R&R’s application of a fifty percent reduction to 55.4 hours of
time expended between July 23, 2013 and February 3, 2014. See Pl.’s Objs. at 8–10; R&R at 9.
According to the plaintiff, during that six-month period, “all tasks on which counsel worked
were essential to initiating[, maintaining, and prevailing upon] Plaintiff’s claim for attorney’s
fees.” Pl.’s Objs. at 9. Acknowledging that Hensley v. Eckerhart, 461 U.S. 424 (1983), provides
for reduction of fees “for work on . . . claims on which plaintiff did not prevail,” the plaintiff
nevertheless contends Hensley “nowhere authorizes elimination or reduction of fees for work
that was necessary to pursue and prevail on a successful claim solely because that work also
benefited an unsuccessful claim.” Pl.’s Objs. at 10 (citing Hensley, 461 U.S. at 434–35). The
defendant responds that “much of the time [expended in this period] by necessity relates only to
the unsuccessful substantive appeal, which Plaintiff brought concomitant to the fee petition.”
Def.’s Opp’n Pl.’s Objs. at 5. According to the defendant, “[i]n these circumstances, Hensley
recommends a reduction.” Id.
The law is well-settled that where a plaintiff has not prevailed on every claim asserted,
“[a] plaintiff’s overall success on the merits . . . must be considered in determining the
reasonableness of a fee award.” Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363,
369 (D.C. Cir. 2006) (citing Farrar v. Hobby, 506 U.S. 103, 114 (1992)). If a plaintiff “presents
‘distinctly different claims for relief that are based on different facts and legal theories,’ the limit
on awards to ‘prevailing parties requires that these unrelated claims be treated as if they had been
raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful
claim.’” Id. (quoting Hensley, 461 U.S. at 434–35). At the same time, the Supreme Court has
rejected a rigid, “mathematical approach comparing the total number of issues in the case with
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those actually prevailed upon” and cautioned that “[w]here a plaintiff has obtained excellent
results, his attorney should recover a fully compensatory fee[;] . . . the fee award should not be
reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.”
Hensley, 461 U.S. at 435 & n.11.
In the present action, the plaintiff initially sought relief related to the administrative
proceedings, as well as to the analytically distinct matter of attorney’s fees. See Compl. at 9–10.
Having not prevailed on her appeal of the administrative proceedings, the plaintiff seeks fees for
less than half of the 363.3 hours expended in this action, excluding time billed for “two motions
that Plaintiff lost.” Pl.’s Objs. at 5–6. The 55.4 hours for which the R&R recommends a fifty
percent reduction consist of (1) 22.4 hours preparing, drafting, and filing the Complaint and (2)
39.2 hours preparing an opposition to the defendant’s motion to dismiss, reduced by 6.2 hours
for time spent drafting the Complaint and meeting with the plaintiff and her grandmother, which
the plaintiff conceded was not related to her success on the fee petition. See R&R at 9.
Inspection of those entries leads to the conclusion that the R&R’s recommendation on
this question should be accepted and the plaintiff’s objections overruled. As the plaintiff
contends, some of the expended time, such as time spent filing the Complaint, was essential to
her claim for attorney’s fees, though incidentally supporting her substantive appeal of the
administrative decision. Yet, much of the legal argumentation appearing in the Complaint and
the opposition to the defendant’s motion to dismiss pertains solely to issues raised by the
plaintiff’s substantive appeal. On balance, a fifty percent reduction to time spent initiating the
lawsuit and responding to the defendant’s motion to dismiss appropriately accounts for the
necessity of some portion of that time to the plaintiff’s fees-on-fees request while also heeding
14
the Supreme Court’s admonition in Hensley that “no fee may be awarded for services on [an]
unsuccessful claim.” 461 U.S. at 435.
Accordingly, the plaintiff’s objection to the R&R’s application of a fifty percent
reduction to 55.4 hours spent during the time period from July 23, 2013, to February 3, 2014, is
overruled, and the recommendation on this issue is accepted.
D. Global Reduction of Fifteen Percent to Reflect Success in the
Fee Litigation
Finally, the plaintiff objects to the R&R’s proposal that “an overall reduction of 15% be
applied to all fees.” Pl.’s Objs. at 11. Specifically, the plaintiff contends that while Hensley
contemplates such a reduction where “hours spent during the merits fees proceeding . . . were
excessive, redundant, unproductive or unnecessary,” the report identifies no such hours here. Id.
Thus, the plaintiff suggests, because the hours expended on the original fee motion were
reasonable, no basis is presented to reduce those hours further to reflect that the plaintiff failed to
recover all of the fees for which she originally argued.
The plaintiff is incorrect. Although as the plaintiff suggests, Hensley requires courts to
consider whether hours were “reasonably expended,” i.e., whether they are “excessive,
redundant, or otherwise unnecessary,” the primary holding of Hensley was that “[t]he product of
reasonable hours times a reasonable rate does not end the inquiry”; rather, after determining the
number of hours reasonably expended on the successful claim or claims, courts must then
consider whether, inter alia, “the plaintiff achieve[d] a level of success that makes the hours
reasonably expended a satisfactory basis for making a fee award.” Hensley, 461 U.S. at 434. Put
another way, even assuming the plaintiff expended a “reasonable” amount of time on her fee
litigation, her fees-on-fees award may nevertheless be “adjust[ed] . . . upward or downward”
based on the “important factor of the ‘results obtained.’” Id. Thus, “the degree of the plaintiff’s
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success in relation to the other goals of the lawsuit is a factor critical to the determination of the
size of a reasonable fee.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782,
790 (1989) (emphasis in original). In evaluating the degree of success, “the district court should
focus on the significance of the overall relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.” Hensley, 461 U.S. at 435.
In accordance with Supreme Court precedent, this Court has explained that to determine
“what portion of the fees-on-fees [a plaintiff] reasonably incurred are recoverable . . . , the Court
first determines what portion of the fees and costs the plaintiff requested in connection with her
underlying administrative action is recoverable and, second, applies this recovery rate to the total
fees and costs reasonably incurred in connection with the follow-on fee litigation.” Eley, 2016
WL 4435187, at *11. In this case, the R&R appropriately takes into account the extent to which
the plaintiff prevailed in her original fees motion and recommends applying that percentage to
the fees reasonably expended in pursuit of the original fee award, as well as the present motion
for fees-on-fees. 5
Accordingly, the plaintiff’s objection to the R&R’s application of a fifteen percent
reduction to the overall fees-on-fees award is overruled, and the recommendation on this issue is
accepted.
5
In reply, the plaintiff emphasizes that a reduction of a fees-on-fees award may only be approved “where the
applicant had, during the course of the fees litigation expended time in litigating a claim, cost or expense that the
court ultimately [found] unsuccessful,” and thus, that the fifteen percent global reduction at issue here constitutes an
impermissible “double deduction” on her award. Pl.’s Reply Def.’s Opp’n Pl.’s Objs. at 15 (emphasis in original),
ECF No. 57. To the extent the plaintiff argues she was entirely successful in her original fee litigation, she is
incorrect. In that litigation, the Court adopted the Mar. 18, 2016 R&R’s finding that the plaintiff’s request for fees
was too high in view of her degree of success in the administrative proceedings and recommended reduction of
fifteen percent. See Mar. 18, 2016 R&R at 11–12. Consequently, having argued for more fees than she was
ultimately awarded, the plaintiff was only eighty-five percent successful in the original fee litigation and is entitled
to only eighty-five percent of the fees and costs incurred in that litigation.
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IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion for fees is granted in part and denied in
part. The plaintiff is entitled to reimbursement for 121.3 hours ((half of 55.4 hours) + 14.9 hours
+ 81.1 hours – 2.4 hours of travel) of attorney time expended in the original fee litigation, plus
9.4 hours of attorney time expended on the present motion, at a rate of $450.00 per hour; plus 2.4
hours of travel time at a rate of $225.00 per hour; reduced by fifteen percent. The plaintiff is
thus entitled to reimbursement of a total of $50,451.75 in additional attorney’s fees.
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell,
o=U.S. District Court for the
District of Columbia, ou=Chief
Date: December 1, 2016 Judge,
email=Howell_Chambers@dcd.usc
ourts.gov, c=US
Date: 2016.12.01 10:41:29 -05'00'
__________________________
BERYL A. HOWELL
Chief Judge
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