BENSON EVERETT LEGG, District Judge.
Now pending is Plaintiff's Motion for Attorneys' Fees. Docket Nos. 210 and 233. This Court has thoroughly reviewed the record and has held two hearings. For the reasons stated below, this Court will award attorneys' fees of $494,423 plus costs of $17,716.
Because the facts are laid out in this Court's Memorandum Opinion of July 1, 2008, Docket No. 59, a brief summary will suffice. This case tested whether the Baltimore County (the "County") Police Department could, in 2006, lawfully order Detective William Blake ("Blake") to undergo a fitness-for-duty physical examination, including an electroencephalogram (EEG). Blake, who had experienced a seizure episode in 1996, but who had performed his duties without incident since then, objected and contended that the order violated the Americans with Disabilities Act ("ADA").
Litigation began when Blake, in December 2006, filed a charge with the Equal Employment Opportunity Commission ("EEOC"). After exhausting his administrative remedies, which included involvement by the EEOC and the Department of Justice ("DOJ"), Blake filed suit on January 8, 2007. Save for the fee petition, litigation ended on July 15, 2011, when the United States Court of Appeals for the Fourth Circuit affirmed a jury verdict in Blake's favor and the jury's award of $225,000 in compensatory damages.
Under the ADA, successful plaintiffs are entitled to an award of reasonable attorneys' fees and costs. See 42 U.S.C. § 12205.
Kathleen Cahill ("Cahill"), who represented Blake from the outset of the case, seeks an award of $450,075, representing 1059 hours of work at $425 per hour.
When reviewing a fee petition, a court uses the "lodestar method." The court multiplies the number of hours reasonably expended by the attorneys times their reasonable hourly rates. See Hensley, 461 U.S. at 433, 103 S.Ct. 1933. The court then decides whether the lodestar fee should be enhanced or reduced in light of the litigation result obtained.
This Court must, therefore, determine a reasonable hourly rate for both Cahill and Smith. For each, the Court must also decide whether the hours billed by each attorney are reasonable. In making these determinations, the Court must take into consideration the twelve Johnson factors:
See Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 & n. 28 (4th Cir.1978) (adopting the twelve factors enumerated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) and holding that "any award must be accompanied by detailed findings of fact with regard to the factors considered").
The Supreme Court has mandated that counsel seeking fees must exercise careful billing judgment and exclude any hours that are "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434, 103 S.Ct. 1933. When attorneys' fees are being paid out of public funds, courts "have a special responsibility to ensure that taxpayers are required to reimburse prevailing parties for only those fees and expenses actually needed to achieve the favorable result." See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 975 (D.C.Cir.2004).
Applying the Johnson factors, the Court concludes that reasonable hourly rates for Cahill and Smith in this case are $385 and $365 respectively.
The market rate for a particular attorney may be proven by the "rate which clients normally and willingly pay the petitioning attorneys," and an attorney's actual billing rate can provide a starting point for purposes of establishing a prevailing market rate. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (citing Gusman v. Unisys Corp., 986 F.2d 1146 (7th Cir.1993)). The relevant market for determining the prevailing rate is ordinarily the community in which the court where the action is prosecuted sits. Id. Evidence of the prevailing market rate often takes the form of affidavits from other counsel attesting to their rates or the prevailing market rate. CoStar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 788 (D.Md.2000).
The inquiry begins with guidelines adopted by this Court in 2008 to provide guidance with respect to fee petitions and awards. Rules and Guidelines for Determining Attorneys' Fees in Certain Cases, App. B, Local Rules (D.Md. 2011) [hereinafter "the Guidelines"]. The Guidelines establish reasonable hourly rates for lawyers with different levels of experience. For attorneys who have been admitted to the bar for 15 years or more, the Guideline range is $275-$400 per hour. This range applies to both Cahill and Smith, who have 28 and 17 of years of experience, respectively.
The Local Rule is a guideline rather than a mandatory range, and there are instances in which judges of this Court have approved hourly rates that exceed the top end of the range. Because the Guidelines were adopted four years ago, the rates are somewhat out of date. It is difficult to determine how much they are out of line, however. On the one hand, inflation since 2008 would suggest that the Guideline range is too low. On the other, the financial crisis of 2008, the persistent recession, and the erosion of the demand for legal services might suggest that the Guideline range should not be increased. In any event, the Guidelines remain in effect, and the Court will take them into consideration.
In addition to the Guidelines, the parties have submitted a plethora of information bearing on an appropriate hourly rate.
Because it stipulates a discounted rate, Cahill and Smith's retainer agreement does not establish a reasonable market rate. Nevertheless, the fact that Cahill and Smith did not bear the full risk inherent in a contingency fee is significant. The risk that an attorney takes when representing a client on a full contingency fee basis, which is often the case in employment discrimination cases, justifies a risk premium. Cahill and Smith did not assume that full risk in this case.
Ms. Cahill is the sole member of the Law Offices of Kathleen Cahill LLC, located in Towson, Maryland. She specializes in employment and civil rights cases. Because most of her work is undertaken on a contingency fee basis, Cahill does not have an established hourly rate for representing litigation clients. When Cahill does charge by the hour, she bases her rates on the means of her clients. For a one-hour consultation, Cahill charges $375. See Docket No. 233-1. Because Cahill has not received a fee award in any other case, that benchmark is unavailable as a comparison.
Mr. Smith is the sole member of Smith Appellate Law Firm PLLC, which is based in Washington, D.C. A significant part of his practice is in Michigan, where he began his career. Smith bills by the hour for most of his work. He charges different rates depending on whether he is working in D.C. or in Michigan. His D.C. hourly rate was $375 in 2010 and $400 in 2011. See Docket No. 233-2. His standard Michigan hourly rate in 2010 and 2011 was $300, although he charged clients between $230 and $375. Id.
Among the Johnson factors is the attorney's opportunity cost in taking the case. Neither Cahill nor Smith have identified any work, especially work at a higher hourly rate, that they turned down in order to represent Blake.
Turning to the quality of the representation, both Cahill and Smith merit high marks. Both are experienced, effective attorneys who represented Blake zealously and well. A sole practitioner, Cahill bore the burden, alone and unaided, of litigating through trial a contentious, protracted case against a formidable adversary. Smith's brief in the Fourth Circuit was thorough and well written. They achieved an excellent result for Blake.
The litigation involved a complicated, technical statute. Administrative exhaustion required coordination with both the EEOC and the DOJ. The central legal issue, whether an asymptomatic employee with a seizure in his past can be required to undergo a medical exam, was unresolved, requiring a trial to provide an answer. The trial took six days and featured expert medical testimony. Baltimore County appealed, requiring Cahill and Smith to defend both liability and damages in the Fourth Circuit. Beyond peradventure,
Cahill and Smith have presented evidence to justify their requested hourly rates of $425 and $375, respectively. Without in any way disparaging the quality of their work, the Court concludes that a somewhat lower rate best fits within the Johnson framework. Rates of $385 for Cahill and $365 for Smith are tethered to the Guidelines, the published market data, and the hourly rates they have charged clients in other cases.
The Court now turns to the number of hours billed. As the fee applicant, Plaintiff has the burden of demonstrating with sufficient detail that the hours expended on the litigation for which fees are sought are reasonable. Hyatt v. Barnhart, 315 F.3d 239, 253 (4th Cir.2002) (citing Hensley, 461 U.S. at 433, 103 S.Ct. 1933). To meet this burden, Blake must produce "an itemized listing of hours and expenses and a short description for each entry explaining how the time was spent." Thompson v. U.S. Dept. of Housing and Urban Dev., No. MGJ-95-309, 2002 WL 31777631, at *9 (D.Md. Nov. 21, 2002).
The case law provides a number of other guiding principles. An award of attorneys' fees may not include hours that are excessive, redundant, or unnecessary. See Hensley, 461 U.S. at 434, 103 S.Ct. 1933. "Those who elect a militant defense are responsible for the time and effort they extract from their opponent. A party cannot litigate tenaciously and then complain about the time spent by the opposing party in response." Imgarten v. Bellboy Corp., 383 F.Supp.2d 825, 840 (D.Md.2005) (citing Copeland v. Marshall, 641 F.2d 880, 904 n. 53 (D.C.Cir.1980)).
Plaintiffs counsel have met their initial burden by submitting their billing records, which contain detailed, contemporaneous records of the hours expended. Counsel posit that the total number of hours reasonably expended in the prosecution of Blake's case is 1443.
Helpfully, the County has limited its challenge to the time spent by Cahill and Smith on four phases of the case: (1) Case Development and Consultations with Blake, the EEOC, and the DOJ; (2) Motions Practice; (3) Appeal, and (4) Fee Petition. The Court has carefully considered the parties' arguments with respect to each category. With respect to the first two, the Court concludes that the hours claimed are reasonable.
The County's chief objection to Cahill's consulting time concerns the number of hours that she spent communicating with the DOJ. During administrative exhaustion, the DOJ was necessarily involved with Blake's case, interviewing him twice. After Blake filed suit, the DOJ continued investigating similar claims made by other County employees. The DOJ and the County eventually settled those claims by simultaneously filing a complaint and a
Turning to the second category, Cahill claims 140 hours for time spent on motions practice in the District Court. Her time chiefly included work on two rounds of cross-motions for summary judgment. In total, Cahill filed seven summary judgment briefs totaling 128 pages. Having reviewed the briefs, the Court concludes Cahill's time was reasonable.
The Court will, however, disallow some of the hours claimed by Cahill and Smith on the appeal and fee petition. When the County noted its appeal, Cahill enlisted Smith, an appellate specialist. Smith devoted 243 hours to the appeal and Cahill devoted 63, for a total of 306 hours. Smith and Cahill have agreed to reduce their hours for the time spent on an unsuccessful motion for sanctions against the County. This reduction brings their totals to 228 (Smith) and 57 (Cahill).
Contending that 285 hours is excessive, the County advocates a one-third reduction to 190 hours. While the total hours devoted is high for an appeal, especially one in which the Fourth Circuit waived argument, the Court will cut each attorney's time by only 15 hours each. In reaching this decision, the Court relies on a number of factors, including the following.
An unusual dispute over the Joint Appendix drove up the hours. When it filed the Joint Appendix, the County omitted many documents that Blake had designated. Blake moved to strike the Joint Appendix. The Court of Appeals ordered the County to file a supplemental Joint Appendix, including the omitted documents. Smith spent 56 hours on this issue. Because Blake prevailed on this issue, the Court will not reduce Smith's hours. As this Court has previously noted, a party cannot litigate tenaciously and then complain about the time spent by the opposing party in response.
Smith spent 95 hours on the brief, which is a high number. Nevertheless, the brief was thoroughly researched and well written. Smith also identified a procedural issue that the appeals court ultimately adopted as its rationale for affirming on liability.
That said, although much of Cahill's time assisted Smith by reducing his learning curve, this Court concludes that 57 hours for Cahill to support and review Smith's work is excessive. The Court will, therefore, reduce her time by 15 hours. The Court will also reduce by 15 hours the time (33 hours) that Smith spent on "general case management and other miscellaneous matters." Docket No. 242-7.
The final category that the County contests concerns time that Cahill and Smith spent on the fee petition. By the Court's count, Cahill has billed a total of 138 hours for her work on the fee petition,
Multiplying counsel's hourly rates by the allowable hours, the Court reaches the lodestar fees in this case. Cahill's reasonable fee is $391,930 ($385 x 1018 hours). Smith's reasonable fee is $121,910 ($365 x 334 hours). Having done this, the Court next considers whether the lodestar fees require adjustment.
The County requests a 10% reduction in the total fees because Cahill and Smith failed to comply with this Court's Local Rule requiring counsel in fee-shifting cases to file quarterly reports showing the amount of time spent on the case and the total value claimed for that time.
Among its purposes, the Local Rule avoids surprises and encourages settlement. While Cahill contends that the County never seriously considered settlement, the County was deprived of accurate information about the risks and rewards of continued litigation. Therefore, the Court concludes that a reduction in the lodestar fee is appropriate. The Court will reduce Cahill's fee by 5%, but will not reduce Smith's fee, because Smith was not associated with the case until the appeal was filed. Applying this reduction to Cahill only, the Court awards fees of $372,333 to Cahill and $121,910 to Smith.
Detective Blake requests a cost award of $17,716 in this case, which the County does not dispute. It is well established that plaintiffs who are entitled to recover attorneys' fees are also entitled to recover reasonable litigation-related expenses as part of their overall award. The Fourth Circuit has explained that such costs may include "those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services." Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988) (internal quotations omitted). As these costs are uncontested and appear to the Court to be reasonable, they shall be awarded.
In many fee-shifting cases, the number of hours expended by plaintiff's counsel can be measured against the billing records
Nothing in this opinion is in any way intended to reflect adversely on the attorneys who handled this case. Both sides were capably and professionally represented. The case was hard fought on both sides, but not unreasonably so. The significant fee award reflects the serious nature of the case as well as the diligence of counsel. While the total cost to the County is high, there is a silver lining, however. This case may ultimately avoid future litigation by providing guidance with respect to fitness-for-duty examinations.
For the reasons stated above, Plaintiffs Motion for Attorneys' Fees, Docket Nos. 210 and 233, is GRANTED in the amounts of $494,423 for attorneys' fees and $17,716 for costs.
D.Md. Loc. Adm. R.App. B(1)(c) & fn. 3. The portion of the rule requiring opposing counsel to request the quarterly statements before seeking a reduction of fees became effective on January 1, 2008.
