RUDOLPH CONTRERAS, District Judge.
Plaintiff B.B. Craig, an official at the United States Mint, sued United States Secretary of the Treasury Steven Mnuchin, in his official capacity, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 ("Title VII").
Mr. Craig has worked for the United States Mint, as a member of the United States Treasury's Senior Executive Service ("SES"), since 2008.
In 2012, Mr. Craig failed to meet the Mint's expectations on two critical SAM projects. Summ. J. Opp'n Ex. 11 at 4, ECF No. 41-11; Summ. J. Opp'n Ex. 24 at 5, ECF No. 41-19 (noting Mr. Crag's "lack of constructive resolution of and leadership on the Order Management System project, and the failure to produce an effective comprehensive marketing plan). These performance issues prompted the Mint's Chief Administrative Officer, Beverly Babers, to begin seeking a position in the Mint that would be a "better fit" for Mr. Craig. Id.; Craig Decl. ¶ 9. Around this time, Mr. Craig filed an informal complaint with the Equal Employment Opportunity Commission (an "EEO complaint"), alleging that certain individuals at the Mint discriminated against him based on his race and gender. Id. ¶ 10; Pls. Petition Award Reasonable Attorneys' Fees & Costs ("Fee Mot.") Att. D, ECF No. 121-9.
Ultimately, the "better fit" that Ms. Babers identified was a detail to a position called "Executive Lead" which, unlike Mr. Craig's previous position, had unclassified duties and no supervisory authority.
Mr. Craig brought this action in 2014 and filed an amended complaint in 2015, alleging that the Mint violated Title VII by (1) failing to place Mr. Craig in the A/D Manufacturing position in 2008; (2) moving Mr. Craig out of the A/D SAM position in 2012; (3) giving Mr. Craig a sub-par performance review in 2012; (4) assigning Mr. Craig to the Executive Lead position for approximately 18 months, from 2012 to 2014; (5) declining to reassign Mr. Craig to the acting or permanent A/D Manufacturing or A/D SAM positions in 2014; and (6) reassigning Mr. Craig to his current position, the A/D ESH. See generally Am. Compl. These claims were narrowed over several rounds of briefing. First, the Court granted the government's pre-discovery motion for summary judgment on Mr. Craig's claim that his non-selection to the A/D Manufacturing position in 2008 was discriminatory. Craig v. Lew (Craig I), 109 F.Supp.3d 268, 284 (D.D.C. 2015). Next, the Court granted the government's post-discovery motion for summary judgment on Mr. Craig's claims that his sub-par performance review in 2012, his removal from the A/D SAM position in 2012, and the Mint's refusal to reassign him to the A/D SAM position in 2014 were discriminatory or retaliatory; and Mr. Craig's claims that his placement in the Executive Lead position from 2012 to 2014, his assignment to the A/D ESH position in 2014, and his non-selection to the A/D Manufacturing position in 2014 were discriminatory. Craig II, 278 F. Supp. 3d at 59, 65, 69, 72, 76.
Finally, the case went to trial on Mr. Craig's claims that (1) his placement in the Executive Lead position from 2012 to 2014; (2) his assignment to the A/D ESH position in 2014; and (3) his non-selection to the A/D Manufacturing position in 2014 were retaliatory, in violation of Title VII. Of these three claims that went to the jury, the jury found for Mr. Craig only on his claim that the Mint retaliated against him by detailing him to the role of Executive Lead, and it awarded Mr. Craig $5,485 in compensatory damages. Jury Verdict, ECF No. 99. In 2018 the Mint received a new permanent Director, a position that had been unfilled since 2011. Pls. Mot. Award Partial Equitable Relief ("Partial Inj. Mot.") at 4-5, ECF No. 110.
Shortly after the trial, Mr. Craig filed a motion for partial injunctive relief. See generally Partial Inj. Mot. After the parties were unable to settle during mediation on injunctive relief and attorneys' fees, the Court ordered Mr. Craig to file motions for complete injunctive relief and complete attorneys' fees and costs. See Minute Order (Aug. 1, 2018). Mr. Craig dutifully filed those motions, which are now, along with his earlier motion for partial injunctive relief and his later motion for interim attorneys' fees, ripe for the Court's consideration. See Partial Inj. Mot.; Pls. Mot. Complete Award Equitable Relief ("Inj. Mot."), ECF No. 120; Fee Mot., ECF No. 121; Pls. Mot. Interim Award Reasonable Attorneys' Fees ("Fee Mot. II"), ECF No. 129.
"[O]ne of the central purposes of Title VII is `to make persons whole for injuries suffered on account of unlawful employment discrimination.'" Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 763 (1976) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)). Accordingly, Title VII expressly provides for a wide range of remedies:
42 U.S.C. § 2000e-5(g)(1).
In considering what remedy is appropriate, the Court "must strive to grant `the most complete relief possible.'" Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989) (quoting Franks, 424 U.S. at 764). In other words, the Court's goal is to restore the plaintiffs, as nearly as possible, to the circumstances they "would have occupied if the wrong had not been committed." Id. (internal quotation marks omitted) (quoting Albemarle Paper, 422 U.S. at 418-19). In fashioning a remedy which satisfies the objectives of Title VII, the district court is vested with "considerable discretion." Id.; see also Hayes v. Shalala, 933 F.Supp. 21, 25 (D.D.C. 1996).
Under Title VII, the Court is authorized, in its discretion, to award "the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs." 42 U.S.C. § 2000e-5(k). Generally, "[a] reasonable fee is one that is `adequate to attract competent counsel, but that does not produce windfalls to attorneys.'" West v. Potter, 717 F.3d 1030, 1033 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)). In awarding reasonable attorneys' fees, a court must conduct a two-step inquiry. Craig v. District of Columbia, 197 F.Supp.3d 268, 274-75 (D.D.C. 2016) (citing Does I, II, III v. District of Columbia., 448 F.Supp.2d 137, 140 (D.D.C. 2006)).
First, the court must determine whether the plaintiff is the prevailing party. Id. at 275. A plaintiff is considered a prevailing party, entitled to attorneys' fees, "if [he] succeed[s] on any significant issue in litigation which achieves some of the benefit the [plaintiff] sought in bringing suit." Harvey v. Mohammed, 951 F.Supp.2d 47, 53 (D.D.C. 2013) (internal quotation marks and alterations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A litigant need not succeed at every step of the litigation in order to be a prevailing party under Title VII; "a litigant who is unsuccessful at a stage of litigation that was a necessary step to [his] ultimate victory is entitled to attorney's fees even for the unsuccessful stage." Craig, 197 F. Supp. 3d at 275 (quoting Ashraf-Hassan v. Embassy of Fr. in the U.S., 189 F.Supp.3d 48, 54-55 (D.D.C. 2016)).
Second, the court must determine whether the plaintiff's fee request is reasonable. Does I, II, III, 448 F. Supp. 2d at 140. In analyzing the plaintiff's fee request, "[a] court must: (1) determine the `number of hours reasonably expended in litigation'; (2) set the `reasonable hourly rate'; and (3) use multipliers as `warranted.'" Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 61 (D.C. Cir. 2015) (quoting Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015)). In determining whether the hours expended on the successful litigation are reasonable, the court must exclude hours that are "excessive, redundant, or otherwise unnecessary." Craig, 197 F. Supp. 3d at 275 (quoting Does I, II, III, 448 F. Supp. 2d at 140). And in determining whether the proposed hourly rate is reasonable, the court must consider three sub-elements: "(1) `the attorneys' billing practices,' (2) `the attorneys' skills, experience, and reputation' and (3) `the prevailing market rates in the relevant community.'" Salazar, 809 F.3d at 62 (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995)). Generally, "there is a `strong presumption that the fee yielded by the now-ubiquitous lodestar method, which bases fees on the prevailing market rates in the relevant community, is reasonable.'" Makray v. Perez, 159 F.Supp.3d 25, 30 (D.D.C. 2016) (quoting West, 717 F.3d at 1034). However, if a plaintiff "achieved only partial or limited success," the court may conclude that "the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount," and it may accordingly reduce the award. Hensley, 461 U.S. at 436.
Ultimately, the plaintiff bears the burden of establishing both his entitlement to attorneys' fees and the reasonableness of the fees he seeks. See Eley, 793 F.3d at 100; Turner v. D.C. Bd. of Elections & Ethics, 354 F.3d 890, 895 (D.C. Cir. 2004); Covington, 57 F.3d at 1107. Once the plaintiff meets this initial burden, a presumption arises that the number of hours billed and the rates at which they are billed are reasonable. See Covington, 57 F.3d at 1110-11; Makray, 159 F. Supp. 3d at 30; Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C. 2010). At 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)).
As described above, the jury concluded that the Mint retaliated against Mr. Craig when it assigned him to the Executive Lead position. Mr. Craig's rights having been vindicated at trial, he is a prevailing party seeking injunctive relief and attorneys' fees. The Court will address each form of relief in turn, concluding that Mr. Craig is entitled to a portion of the injunctive relief sought and a portion of the attorneys' fees sought. Accordingly, it grants each of Mr. Craig's motions in part.
The Court first addresses Mr. Craig's motions for injunctive relief. Again, under 42 U.S.C. § 2000e-5(g)(1), the Court may grant "equitable relief" that "the court deems appropriate" to restore Mr. Craig, as nearly as possible, to the circumstances he would have occupied but for the Mint's retaliation. Lander, 888 F.2d at 156; see also Berger v. Iron Workers Reinforced Rodmen, 170 F.3d 1111, 1119 (D.C. Cir. 1999) ("[A] court must, as nearly as possible, recreate the conditions and relationships that would have been, had there been no unlawful discrimination." (citation and internal quotation marks omitted)). In furtherance of this objective, "[d]uring the remedial stage of the proceedings, the district court may make factual findings to determine appropriate `make whole' relief under § 2000e-5(g)(1), as long as the findings are consistent with the jury verdict." Porter v. Natsios, 414 F.3d 13, 21 (D.C. Cir. 2005) (internal citation omitted).
Mr. Craig seeks wide ranging injunctive relief designed to replicate the career path that he believes he would have followed, had he not been placed in the Executive Lead position. He asks the Court to (1) require the government to install Mr. Craig in a "dual hat" role; (2) enjoin the government from detailing Mr. Craig to a position with unclassified duties for more than 240 days; (3) declare that Mr. Craig's civil rights were violated by his placement in the Executive Lead position; and (4) require the government take certain actions with respect to Mr. Craig's personnel file and future employment inquiries. Inj. Mot. at 1-2. As explained below, the Court concludes that Mr. Craig is not entitled to a dual hat role or declaratory relief, but that he is entitled to certain personnel file-related relief. Accordingly, the Court grants Mr. Craig's motion in part.
Mr. Craig argues that to restore him to the position he would have occupied but for the Mint's retaliation, this Court must require the Mint to install Mr. Craig in a dual hat role in which he encumbers his current Associate Director position and another SES-level position simultaneously. As noted, "Title VII envisioned that making a victim whole would include his reinstatement to the position he would have held but for the discrimination." Jean-Baptiste v. District of Columbia, 958 F.Supp.2d 37, 42 (D.D.C. 2013) (quoting Lander, 888 F.2d at 156). However, while a court must strive to "recreate the conditions and relationships that would have been" in the absence of the defendant's discrimination or retaliation against the plaintiff, Berger, 170 F.3d at 1119 (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977)), "equitable relief is not automatic and the court must assess the appropriateness of the equitable relief sought in light of the injuries found," Hayes, 933 F. Supp. at 27. "Where the jury has not actually decided an issue or where the basis for the jury's decision cannot be determined, the court is not bound." Id. (citing Blake v. Hall, 668 F.2d 52, 54 (1st Cir. 1981), cert. denied, 456 U.S. 983 (1982)). Accordingly, a court need not recreate a plaintiff's hypothetical career path, if the jury's verdict does not dictate that the plaintiff be placed on that path.
Mr. Craig contends that "the path to career advancement for a member of the SES is through indefinite details in acting positions, usually while simultaneously assigned to his or her permanent position," Partial Inj. Mot. at 6, and that "other Associate Directors who did not engage in protected EEO activity" received these "career enhancing assignments." Id. at 14. Mr. Craig thus asks the Court to require the government to install him as acting A/D of Manufacturing, acting A/D SAM, now titled Director of Numismatics and Bullion, acting Chief Administrative Officer, or an "equivalent acting position" for eighteen months, in addition to his current position as A/D ESH. Inj. Mot. at 1. The government counters that such relief is inappropriate because (1) the jury's verdict does not dictate that Mr. Craig be detailed—in addition to his current A/D ESH position—to another Associate Director position; and (2) Mr. Craig "has presented no evidence that would support a claim that he would have been `dual-hatted' in any other role, were it not for the Mint detailing him to the Executive Lead role." Partial Inj. Opp'n at 8, ECF No. 112. The government's argument is well-taken.
Courts in this District occasionally grant retroactive promotions grounded in plaintiffs' "career path" theories, applying the principle that a "remedial decree which considers career progress improperly denied is well within this Court's discretion under Title VII." Brown v. Marsh, 713 F.Supp. 20, 22 (D.D.C. 1989) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399 (1982); Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 762 (1976)). In determining whether this type of relief is appropriate, a court must consider whether the jury's verdict is based on the plaintiff's failure to obtain a specific position or promotion to which he or she was entitled in the absence of discrimination or retaliation. See Porter, 414 F.3d at 22-23 (affirming the district court's decision to deny the plaintiff retroactive placement when the jury's verdict did not establish that the plaintiff would have received that placement in the absence of discrimination). The court must also look to "the career path of the man [or woman] promoted in [the plaintiff's] stead" and any record evidence suggesting that the plaintiff was likely to progress at a similar or faster rate. Brown, 713 F. Supp. at 22.
For instance, in Brown, another court in this District determined that a plaintiff who had been refused a GS-9 position in the United States Army for discriminatory reasons was entitled to equitable relief mirroring the career path of the individual chosen for that position, who had subsequently advanced to a GS-13 position. Id. a 21-22. The record indicated that the plaintiff was a qualified, "perhaps . . . exceptional employee" with ambitious goals—as indicated by his personnel reviews, application history, and his superiors' statements—such that merely placing the plaintiff in the position he was initially refused "seem[ed] clearly inequitable." Id. at 22-23. The court accordingly concluded that the plaintiff was entitled to back pay and retroactive promotions corresponding to the career path of the individual promoted in the plaintiff's stead. Id. at 24.
Similarly, in Allen v. Barram, another court in this District held that the plaintiffs—who had been discriminatorily denied GS-7 jobs—were entitled to retroactive promotions and trainings to mirror the career paths of the individuals selected in their stead. 215 F.Supp.2d 184, 189-91 (D.D.C. 2002). The court concluded that because "the incumbents [could not] claim some expertise that [the] plaintiffs lack[ed]", because the plaintiffs had "excellent records" and their "supervisors thought highly" of them, and because nine of the eleven incumbents achieved substantial career advancement from the positions that the plaintiffs were improperly denied, retroactive promotion was appropriate. Id. at 191-92.
On the other hand, courts have been reluctant to grant retroactive promotions where a plaintiff is unable to sufficiently demonstrate that he would have achieved the promotions sought, but for the discrimination or retaliation. In Lloyd v. Holder, for instance, another court in this District refused to grant a retroactive promotion where the record indicated only that "if [the plaintiff] had had the opportunities which were denied him, [he] might have been a more attractive candidate for promotion." No. 97-1287, 2010 WL 1999657at *3 (D.D.C. May 18, 2010). The court found it significant that the plaintiff provided no evidence that he was a competitive candidate for the promotion sought—he "was an average employee"—and the career path of the individual that the plaintiff sought to imitate "was not comparable" to the plaintiff's. Id. at *3-4; see also Jean-Baptiste, 958 F. Supp. 2d at 42-43 (denying the plaintiff's request for a retroactive promotion where the plaintiff relied on "vague," "unduly speculative" assertions in support of that request); Fogg v. Gonzales, 407 F.Supp.2d 79, 91 n.6 (D.D.C. 2005) (holding that the plaintiff was not entitled to a retroactive promotion where such a promotion was "overly speculative" and the court was "not persuaded that [the plaintiff] would have been among the relatively few [individuals] selected to advance to the . . . level" sought) aff'd in part and rev'd on other grounds, 492 F.3d 447 (D.C. Cir. 2007).
Here, Mr. Craig has not sufficiently demonstrated that the jury's verdict requires that he be placed in a dual hat role. The jury determined that Mr. Craig's "placement and treatment . . . in the role of Executive Lead was retaliatory." Jury Verdict at 1. In making this determination, as Mr. Craig notes, Reply Mem. Supp. Partial Inj. Mot. ("Partial Inj. Reply") at 2, ECF No. 114, the jury was instructed to determine whether Mr. Craig's placement "significantly affect[ed] [Mr. Craig's] supervisory authority, programmatic responsibilities, or future employment opportunities or career prospects." Jury Preamble at 18 (emphasis added), ECF No. 98. Put another way, the jury determined that Mr. Craig's retaliatory detail from an Associate Director position to the Executive Lead position harmed him by depriving him of certain authority and responsibilities that he enjoyed as an Associate Director, or by depriving him of career opportunities that he would have otherwise received as an Associate Director. The jury did not determine, as Mr. Craig would have this Court conclude, that Mr. Craig was retaliated against because he was deprived of "career-enhancing" dual hat details or assignments, but rather because he was deprived of an Associate Director role overseeing a single Mint unit.
However, just because the jury did not consider whether Mr. Craig would have received a dual hat role but for the Mint's retaliation does not mean that the Court cannot grant such relief. As Mr. Craig notes, Partial Inj. Reply at 8-9, "a district court which endeavors to fashion a remedy for discrimination cannot confine itself to narrow or technical measures which, while perhaps bearing a logical connection to the plaintiff's complaint, fail to reflect the whole of the plaintiff's injury." Brown, 713 F. Supp. at 22. In attempting to "recreate the conditions and relationships that would have been" in the absence of the Mint's retaliation against Mr. Craig, Berger, 170 F.3d at 1119 (quoting Teamsters, 431 U.S. at 372), the Court may look beyond the jury's verdict to place Mr. Craig on the career path he would have followed had he remained in an Associate Director role. That said, while the Court may "engage in some speculation" in granting equitable relief, Mr. Craig's assertion that he would have received a dual hat assignment but for the Mint's retaliation is overly speculative. Barbour v. Merrill, 48 F.3d 1270, 1280 (D.C. Cir. 1995).
Mr. Craig argues that because certain SES members—specifically David Croft, Marc Landry, and Jon Cameron—received dual hat Mint assignments while Mr. Craig was assigned to the Executive Lead position, Mr. Craig would have received a dual hat assignment if he remained in an Associate Director position. Partial Inj. Mot. at 10-13. However, Mr. Craig fails to provide evidence that those individuals were similarly situated to him, other than through their common SES membership.
Mr. Craig also more generally asserts that dual hat assignments were "afforded to other Associate Directors who did not engage in protected EEO activity," and he suggests that these assignments were given as a matter of course because the Mint had more SES positions to fill than SES members to fill them. Partial Inj. Mot. at 14-15. However, while the record shows that certain SES members received dual hat assignments, see Organizational Announcement at 1 (announcing dual hat roles for Mr. Landry and Mr. Croft), and while dual hat assignments may improve an SES member's career prospects, Mr. Craig has not provided evidence indicating that such assignments were issued as a matter of course within the Mint. The record suggests that some SES members received dual hat assignments, and some did not. See 2012-2016 Mint Organizational Charts (listing Associate Directors, including Goutam Kundu, Marty Greiner, and Annie Brown, who do not appear to have occupied dual hat assignments). Therefore, at most, Mr. Craig has demonstrated that "if he had had the opportunities which were denied him, [he] might have" received a dual hat assignment. Lloyd, 2010 WL 1999657, at *3. But Mr. Craig might instead have followed the same path as the SES members who did not receive dual hat assignments.
The Court finds the latter scenario more likely because, as Mr. Craig concedes, the only open Associate Director Mint position in 2012, when Mr. Craig was detailed from A/D SAM to the Executive Lead, was the A/D Manufacturing position. See Partial Inj. Reply Att. N at 2 n.1, ECF No. 114-2. Mr. Craig was denied assignment to that position in 2008 and denied reassignment to that position in 2014; denials that were found to be non-discriminatory and non-retaliatory. See Craig I, 109 F. Supp. 3d at 284; Craig II, 278 F. Supp. 3d at 76; Jury Verdict. Mr. Craig provides no evidence to suggest that the Mint would have detailed him into the A/D Manufacturing role in 2012 in a dual hat capacity, given that the Mint denied his application for assignment to that role four years earlier and would deny his application for reassignment to the role two years later.
Mr. Craig also requests that the Mint be enjoined from detailing him to a position with unclassified duties for more than 240 days. Inj. Mot. at 1. Mr. Craig contends that this anti-retaliation injunction is necessary to ensure "that he will not be placed at a competitive disadvantage because of the Mint's illegal actions." Id. at 9. The government, on the other hand, argues that "[n]o basis in fact exists to suggest that such relief is necessary where [the government] has demonstrated a commitment to a fair assessment of Plaintiff's contributions and has awarded Plaintiff for his performance." Def.'s Opp'n Inj. Mot. ("Inj. Opp'n") at 8, ECF No. 125. The government again has the better of this argument.
Absent more specific evidence that Mr. Craig is likely to again face retaliation, restricting the Mint's employment decisions going forward is not necessary to address Mr. Craig's harm. The Mint officials primarily responsible for the retaliatory decision to detail Mr. Craig to the Executive Lead position—Ms. Babers and Mr. Peterson—are no longer employed by the Mint. See 2018 Mint Organizational Charts, Inj. Mot. Att. A, ECF No. 110-2; 2012-2016 Mint Organizational Charts.
Rather than supplying record evidence, Mr. Craig relies extensively on the D.C. Circuit's opinion in Bundy v. Jackson and the District Court's opinion in Jean-Baptiste, but those cases are factually inapposite. The female plaintiff in Bundy was subjected to a pattern of sexual harassment by her supervisors as part of a "discriminatory environment"; a pattern of which the agency's director was aware. Bundy v. Jackson, 641 F.2d 934, 943-46 (D.C. Cir. 1981). In remanding the case for the District Court to impose injunctive relief, the Circuit noted that despite the fact that the plaintiff had not complained of harassment in six years, there was little certainty that the harassment would not resume "because [the plaintiff's] agency ha[d] taken no affirmative steps to prevent recurrence of the harassment, and because all the harassing employees still work[ed] for the agency." Id. at 946 n.13. Similarly, the plaintiff in Jean-Baptiste was subjected to a pattern of harassment, and the District of Columbia took no proactive steps to address the plaintiff's injury until after the jury rendered a verdict, giving the court "significant concerns" that the plaintiff could face retaliation after being reinstated to her previous position. Jean-Baptiste, 958 F. Supp. 2d at 51.
Here, on the other hand, Mr. Craig did not demonstrate that he was subjected to a systemic discriminatory or retaliatory environment, and he was assigned to a more favorable position before he filed the action in this Court.
Mr. Craig also requests a declaration that the Mint retaliated against him, in violation of Title VII, by placing him in the Executive Lead position. Inj. Mot. at 1-2, 10. He claims that such relief is necessary to "ensure that defendant and its officials, management, and agents are given specific notice of the Mint's violation of Title VII." Inj. Reply at 11. However, the jury's publicly available verdict already gives clear, specific notice of the Mint's violation. Jury Verdict ("[T]he Plaintiff has proved by a preponderance of the evidence that the Defendant's placement and treatment of Mr. Craig in the role of Executive Lead was retaliatory.").
Finally, Mr. Craig argues for personnel record-related relief. "The federal courts are empowered to order the expungement of Government records where necessary to vindicate rights secured by the Constitution or by statute." Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C. Cir. 1975). Such "[e]xpungement of personnel records constitutes equitable relief under Title VII." Fogg, 407 F. Supp. 2d at 87 (citing Smith v. Sec'y of the Navy, 659 F.2d 1113, 1114 (D.C. Cir. 1981)). Mr. Craig requests that (1) the Mint be required to expunge any reference to Mr. Craig's Executive Lead tenure from its official agency records, such that the records indicate that Mr. Craig was an Associate Director throughout the retaliation period; (2) for purposes of Mint personnel decisions, including future reassignments, training, and promotions, the Mint be required to treat Mr. Craig's Executive Lead position as an Associate Director-level position with Associate Director-level responsibilities and authority; and (3) for purposes of external, employment-related inquiries, the Mint be required to characterize Mr. Craig's Executive Lead position as an Associate Director-level position with Associate Director-level responsibilities and authority. Inj. Mot. at 1-2, 10.
The government asserts that much of Mr. Craig's requested relief has already been implemented, but the government's assertions do not fully address Mr. Craig's harm and the government fails to provide record support for those assertions. For instance, the government claims that it "has never considered [Mr. Craig] as having left the SES, or as having performed non-SES duties at all relevant times; nor has [it] ever suggested that the Executive Lead role was not at the SES level." Inj. Opp'n at 10. However, while the government may not consider the Executive Lead role to have been a non-SES role, when contemplating future personnel decisions the government could still consider the Executive Lead role to have been inferior to an Associate Director role, such as A/D SAM.
Furthermore, despite the government's characterization of Mr. Craig's request as "overbroad" and "unduly burdensome," the parties seem to agree that Mr. Craig's official personnel file should be altered to reflect that he occupied an Associate Director-level role during the retaliation period. See Inj. Mot. at 11; Inj. Opp'n at 11. The government proposes to expunge the document in Mr. Craig's electronic Official Personnel File that memorializes Mr. Craig's detail to the Executive Lead position—the "Standard Form 52 Initiation of/Request for Personnel Actions" ("SF-52")—leaving only documentation suggesting that Mr. Craig occupied the A/D SAM position through 2014, when he was reassigned to the A/D ESH position. Id. Mr. Craig argues that his SF-52's, performance appraisals, and Performance Review Board materials in his Official Personnel File identifying him as Executive Lead should be expunged and replaced with documents identifying him as an Associate Director. Inj. Reply at 13. Mr. Craig's proposal is better crafted to address his harm because it includes the documents that Mint officials may consider when making promotion decisions in the future.
Therefore, to "recreate the conditions and relationships that would have been" in the absence of the Mint's retaliation against Mr. Craig, Berger, 170 F.3d at 1119 (quoting Teamsters, 431 U.S. at 372), the Court exercises its equitable powers under Title VII to order the following personnel record-related relief. First, the Mint must treat Mr. Craig's Executive Lead position as an Associate Director-level position, with Associate Director-level responsibilities and authority, for purposes of both internal personnel decisions and external, employment-related inquiries.
The Court next addresses Mr. Craig's motion for attorneys' fees and costs under 42 U.S.C. § 2000e-5(k). As noted, to receive attorneys' fees, Mr. Craig must establish that he is the prevailing party, and if he succeeds in establishing this element he must further establish (1) a reasonable hourly rate for his attorneys' services; (2) the number of hours reasonably expended by those attorneys on the litigation; and (3) whether a fee adjustment is warranted.
Mr. Craig has divided his attorneys' work into multiple stages, and he has applied different methodologies to those stages to reach the attorneys' fees he claims. First, for the litigation's administrative stage (the "EEO complaint stage")—before the complaint was filed in this Court—Mr. Craig seeks fees for approximately 100 hours of work by his current counsel, Fee Mot. at 24, billed at the rates dictated by the fee matrix maintained and updated by the United States Attorney's Office ("USAO") for the District of Columbia (the "USAO Matrix"), Fee Mot. at 1 n.2, reduced by 26.25 percent to account for Mr. Craig's lack of success, Fee Mot. at 27.
Second, for the litigation's stage covering the filing of Mr. Craig's complaint in this Court through trial, Mr. Craig seeks fees for approximately 1,607 hours of attorney work, Fee Mot. at 8, billed at the rates dictated by the Legal Services Index ("LSI") Fee Matrix (the "Salazar/LSI Matrix"),
Third, for the litigation's post-trial stage, Mr. Craig seeks fees as follows. Mr. Craig first seeks fees for approximately 130 hours spent on equitable relief briefing, Fee Mot. at 24; See Second Decl. of Robert C. Seldon ("Seldon Decl. II") ¶ 57, ECF No. 134-1, billed at the USAO Matrix's rates, Fee Mot. at 1 n.2, with no additional reduction, Fee Mot. at 2. Mr. Craig next seeks fees for approximately 150 hours spent on attorneys' fees briefing, Fee Mot. at 24; Seldon Decl. II ¶ 57, billed at the USAO Matrix's rates, Fee Mot. at 1 n.2, with no additional reduction, Fee Mot. at 2.
Applying these methodologies, Mr. Craig seeks $43,871.74 in attorneys' fees for work done at the EEO complaint stage by his current counsel, $13,141.39 in fees for work done at the EEO complaint stage by his former counsel, $553,125.00 in fees for work done from the filing of Mr. Craig's complaint through trial, $74,660.30 in fees for work done at the equitable relief stage, and $87,393.30 in fees for work done at the attorneys' fees stage. Fee Mot. at 2; Reply Mem. Supp. Fee Mot. ("Fee Reply") at 27, ECF No. 134; Seldon Decl. II ¶ 57; Proposed Order, ECF No. 134-5. In total, Mr. Craig seeks $759,050.34 in attorneys' fees for his current counsel,
First, the Court must determine the "reasonable hourly rate" applicable to Mr. Craig's attorneys' services. As noted, in determining whether Mr. Craig's proposed hourly rate is reasonable, the Court must consider: (1) his attorneys' billing practices; (2) his attorneys' skills, experience, and reputation; and (3) the prevailing market rate in Washington, D.C. See Salazar, 809 F.3d at 62. Mr. Craig has submitted a declaration from Mr. Seldon describing in great detail (1) Mr. Seldon's extensive experience litigating complex federal cases at his current firm, at the United States Attorney's Office, and at other organizations; (2) the skills and experience of the other Seldon Bofinger attorneys who participated in this action; and (3) Mr. Seldon's billing practices. See generally Decl. of Robert C. Seldon ("Seldon Decl. I"), ECF No. 121-2. Based on these representations, which the government does not dispute, see generally Fee Opp'n, the Court concludes that Mr. Craig has satisfied his burden of demonstrating his attorneys' skills, experience, reputation, and billing practices. See Salazar, 809 F.3d at 62. The Court will therefore focus on the parties' evidence regarding the applicable prevailing market rate.
While "[a]scertaining the prevailing market rate is inherently difficult[,]" the "court must determine the prevailing hourly rate in each particular case with a fair degree of accuracy." Taylor v. District of Columbia, 205 F.Supp.3d 75, 83-84 (D.D.C. 2016) (citations and internal quotation marks omitted). To demonstrate prevailing market rates, "a fee applicant must produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Gatore v. DHS, 286 F.Supp.3d 25, 33 (D.D.C. 2017) (internal quotation marks omitted) (quoting Eley, 793 F.3d at 100). Parties and courts generally use a fee matrix—which lists Washington, D.C.-based billing rates, categorized by attorney experience—to simplify the prevailing rate analysis because, as the D.C. Circuit has noted, "the matrices . . . provide a useful starting point."
Decades of fee litigation in this Circuit have produced competing fee matrices based on slightly different underlying data and approaches to inflation. Two of these matrices are relevant here: (1) the USAO Matrix; and (2) the Salazar/LSI Matrix.
Declaration of Dr. Laura A. Malowane ("Malowane Decl.") ¶¶ 6-7, Fee Opp'n Ex. 7, ECF No. 130-7;
Malowane Decl. ¶¶ 8-9; see also Salazar/LSI Matrix.
The parties agree that the Court should utilize a fee matrix when determining the appropriate hourly rate for Mr. Craig's attorneys. See Fee Mot. at 19-20; Fee Opp'n at 11-12. They also agree that the Court should apply the USAO Matrix to work done at the litigation's administrative and post-trial stages. See Fee Mot. at 21; Fee Opp'n at 11-12. However, they do not agree on the matrix that should apply to work done from "the inception of the case," the complaint, "through trial." Fee Mot. at 20. Mr. Craig argues that the Court should apply the Salazar/LSI Matrix rates. Id.
Recent D.C. Circuit decisions make clear that a plaintiff cannot demonstrate a prevailing market rate simply by submitting a declaration from the plaintiff's attorney and referencing a fee matrix. See Eley, 793 F.3d at 100. Rather, the plaintiff must present additional evidence, such as "surveys to update [the applicable fee matrix]; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by courts or through settlement to attorneys with comparable qualifications handling similar cases." Makray, 159 F. Supp. 3d at 33 (internal quotation marks omitted) (quoting Eley, 793 F.3d at 101); see also Salazar, 809 F.3d at 64-65 (holding that the plaintiffs sufficiently justified application of the Salazar/LSI Matrix where they presented 1) an economist's affidavit explaining the advantages of the Salazar/LSI Matrix; (2) tables comparing national law firm rates, which demonstrated that the rates provided by the Salazar/LSI Matrix more closely mirrored national averages; and (3) recent National Law Journal ("NLJ") rate surveys showing that, in one of the years for which fees were requested, high-end rates for law firm partners in Washington, D.C. "far exceeded" the Salazar/LSI Matrix rates). Should the plaintiff meet his burden, "a defendant may rebut [the] plaintiff's showing with specific countervailing evidence." Gatore, 286 F. Supp. 3d at 36 (citing Covington, 57 F.3d at 1110). Thus, the "issue is whether [Mr. Craig has] submitted sufficient evidence for the . . . [C]ourt to conclude that the [Salazar/LSI] Matrix applies," and if so, whether the government has rebutted that evidence. Salazar, 809 F.3d at 64; see also Gatore, 286 F. Supp. 3d at 36; Makray, 159 F. Supp. 3d at 39.
In support of Mr. Craig's position that the Salazar/LSI Matrix best captures the prevailing rate for Title VII litigation, Mr. Craig presents several pieces of evidence. First, Mr. Craig submits a declaration from his lead counsel, Mr. Seldon, describing Mr. Seldon's extensive complex federal litigation experience, his previous successful Title VII actions, and his billing practices; comparing his hourly rates to those charged by other private firms engaged in complex federal litigation; and advocating for the rates dictated by the Salazar/LSI Matrix. See generally Seldon Decl. I. Second, Mr. Craig submits the declaration of Mr. Davidson, a partner in the law firm of Steptoe & Johnson LLP, who "is eminently qualified to speak to the reasonable hourly rates charged in the fully for-profit legal market in Washington, D.C." Fee Mot. at 20; see generally Davidson Decl. Third, Mr. Craig references market data, specifically the NLJ's 2016 and 2017 annual surveys of law firm billing rates, which Mr. Davidson contends "indicates the reasonableness" of the fees sought. Davidson Decl. ¶¶ 20-21; see also Davidson Decl. Ex. B, ECF No. 121-10. Fourth, and finally, Mr. Craig directs this Court to the fee awards in Mr. Seldon's most recent successful Title VII actions, in which Mr. Seldon was awarded fees or settled a fee petition based on the Salazar/LSI Matrix. See Makray, 159 F. Supp. 3d at 56; Roman v. Castro, No. 12-1321 (D.D.C).
To rebut Mr. Craig's evidence, the government presents its own declarations and data. First, the government submits Dr. Malowane's declaration asserting the USAO Matrix's superiority. See generally Malowane Decl. Second, the government directs this Court to the government's amicus brief recently submitted to the D.C. Circuit regarding the advantages of the USAO Matrix over the Salazar/LSI Matrix. See generally Br. for the United States as Amicus Curiae Supporting Appellees, DL v. District of Columbia, No. 18-7004 (D.C. Cir. July 20, 2018). Third, and finally, the government directs this Court to recent decisions in this District holding that the USAO Matrix, rather than the Salazar/LSI Matrix, most accurately captures the prevailing market rates for complex federal litigation. Fee Opp'n at 6 n.3.
While Mr. Craig has submitted a "great deal of evidence regarding [the] prevailing market rates for complex federal litigation" to demonstrate that his requested rates are entitled to a presumption of reasonableness, Salazar, 809 F.3d at 64 (quoting Covington, 57 F.3d at 1110), the Court concludes that the government has "rebutted that presumption and shown that the current USAO Matrix is the more accurate matrix for estimating the prevailing rates for complex federal litigation in this District." Gatore, 286 F. Supp. 3d at 37. First, the Court will address the fundamental differences between the two relevant matrices; second, it will address Mr. Craig's showings regarding Mr. Seldon's entitlement to the Salazar/LSI Matrix rates; and third, it will address the relevant case law cited by the parties.
Both parties submit declarations asserting the superiority of their preferred matrices. However, Mr. Craig's declarations—from Mr. Seldon and Mr. Davidson—fail to address why the Salazar/LSI Matrix is a more accurate measure of the prevailing market rate than the USAO Matrix—what Mr. Seldon refers to as the USAO "Laffey Matrix." Instead, Mr. Seldon references his previous Salazar/LSI fee awards, Seldon Decl. I ¶ 58-59, he expounds upon the sophistication required to successfully litigate federal employment cases, id. ¶ 60-61, and he makes the conclusory assertion that the USAO Matrix "does not account for the expertise, experience, success of [his] firm, and credibility in federal courts." Id. ¶ 57. Mr. Seldon fails to show how the Salazar/LSI Matrix's methodology better accounts for those factors, aside from simply listing higher billing rates. Mr. Seldon also criticizes the USAO Matrix for "lumping all attorneys into categories that are based exclusively on years of practice," id. ¶ 65, but he fails to explain why the Salazar/LSI Matrix does not suffer from the same shortcoming.
Mr. Davidson takes a stab at distinguishing the Salazar/LSI Matrix from the USAO Matrix based on their methodologies, but he focuses on a previous version of the USAO Matrix rather than the version implemented in 2015.
On the other hand, the government's declarant—Dr. Malowane—largely echoed by the government's DL amicus brief, makes nuanced arguments for why the USAO Matrix is superior to the Salazar/LSI Matrix. First, the USAO Matrix rates are calculated based on 2011 survey data, while the Salazar/LSI rates are calculated based on 1989 data. Malowane Decl. ¶ 12. As Dr. Malowane notes, "[t]he more years [a] matrix continues without updating its original data source, the more previous years' forecasting errors may be compounded." Id. ¶ 12; see also Gatore, 286 F. Supp. 3d at 38-39 (applying the USAO Matrix because it is based "on far more current rate data"); DL, 267 F. Supp. 3d at 69 (concluding that the USAO Matrix is "more reliable and unbiased" than the Salazar/LSI Matrix in part because it is based on more recent data); Clemente v. FBI, No. 08-1252, 2017 WL 3669617, at *5 (D.D.C. Mar. 24, 2017) (applying the USAO Matrix rates because that matrix "specifically measures rates in the legal services industry, and is based on much more current data than the [Salazar/LSI Matrix]").
Second, the USAO Matrix's underlying survey data is more reliable because it was "based on a statistical survey of hundreds of attorneys in the Washington, DC area," while the Salazar/LSI Matrix's data was derived from a single attorney's informal survey of fee awards, law firm rates, and NLJ surveys. Malowane Decl. ¶¶ 14-15. Without more information about how the data underlying the Salazar/LSI Matrix was collected, "there is no way to determine the reliability of" this data. Id. ¶15.
Third, the USAO Matrix is more precise because it lists rates for nine categories of attorney experience, while the Salazar/LSI Matrix lists rates for only five categories. Malowane Decl. ¶¶ 21-22. Having "more narrowly defined categories of years of experience enables the USAO Matrix to more accurately capture an individual attorney's fees." Id. ¶ 22. Again, Mr. Craig fails to address this difference between the matrices. The Court thus concludes that the government has shown that, in the abstract, the USAO Matrix is likely to be a more accurate indicator of prevailing market rates than the Salazar/LSI Matrix.
Mr. Craig attempts to bolster his reliance on the Salazar/LSI Matrix by supplying additional evidence of the current market rates for complex federal litigation, but he fails to show that "attorneys with similar qualifications have received [Salazar/LSI Matrix rates] from fee-paying clients in comparable cases." Makray, 159 F. Supp. 3d at 33. Mr. Seldon asserts that he has "kept abreast of hourly rates and staffing practices by other firms engaged in complex litigation," that he is intimately aware of the billing rates of local large firms because of his previous experience as a partner in one of these firms, and that his billing rates are "far less than the rates charged by private firms in other fields of private litigation that are no more or less complex." Seldon Decl. I ¶¶ 56-68. Similarly, Mr. Davidson states that the rates sought by Mr. Craig are "well within the reasonable range of rates for a firm undertaking matters of the complexity of those involved here." Davidson Decl. ¶ 12.
These declarations lay the foundation for Mr. Craig's submission of the NLJ's 2016 and 2017 annual surveys of law firm billing rates, which capture the billing rates of large, national, corporate law firms in Washington, D.C. See Davidson Decl. Ex. B. As Mr. Davidson notes, Mr. Seldon's Salazar/LSI Matrix rate of $895 is within $100 of the average partner rates in the NLJ's surveys—$794 in 2016 and $892 in 2017—and it is lower than the high-end partner rates in those surveys—$945 in 2016 and $1160 in 2017. Davidson Decl. Ex. B. However, the court is not persuaded that these surveys reflect the prevailing market rate in Washington, D.C. for the type of complex federal litigation undertaken in this case.
The Court's skepticism arises primarily from the fact that the data in the NLJ's surveys is drawn only from the nation's largest commercial law firms.
Second, despite Mr. Davidson's assertion that that large corporate firms, such as his firm, represent defendants in employment cases, and that the hourly rates charged for this work "are similar to those rates charged by comparably experienced attorneys in other types" of federal litigation, Davidson Decl. ¶ 14, Mr. Craig has not demonstrated that the large firms included in the NLJ's surveys charge their rates in "comparable cases" to Mr. Craig's action here. Makray, 159 F. Supp. 3d at 33. Other than on a pro bono basis, a firm like Jones Day or Hogan Lovells has never represented either a plaintiff or an employer in a single-plaintiff employment case before the undersigned, and Mr. Craig has presented no evidence contradicting this experience. Those firms' rate structures do not appear to make sense in most single-plaintiff cases. In assessing market rates and awarding a fee that is "adequate to attract competent counsel, but that does not produce windfalls to attorneys," the Court cannot ignore what the market seems to reveal in the real world. Makray, 159 F. Supp. 3d at 30 (internal quotation marks omitted) (quoting West, 717 F.3d at 1033). For this reason, courts in this District have been reluctant to grant Salazar/LSI rates based solely on data pulled from large commercial firms. See Gatore, 286 F. Supp. 3d at 41-42 (stating that NLJ survey data is "unreliable because [it] heavily rel[ies] on rates from attorneys at some of the nation's largest law firms," and listing cases exhibiting similar skepticism); DL, 267 F. Supp. 3d at 70 (stating that "reliance on [NLJ] surveys has been called into question by other courts," and listing additional decisions from within this District).
Moreover, Dr. Malowane's declaration includes law firm data that seems to suggest that the Salazar/LSI Matrix rates are higher than the prevailing market rates in this region. For instance, Table 2 of Dr. Malowane's declaration compares the USAO Matrix rates and Salazar/LSI Matrix rates to the rates compiled by ALM's 2014 Survey of Law Firm Economics, and it indicates that the Salazar/LSI Matrix rates are far above the highest ten percent of billing rates in the ALM survey. See Malowane Decl. ¶ 17 (indicating that in 2014, the average hourly rate for the highest-billing ten percent of attorneys across the nation with at least thirty-one years of experience was $570, while the Salazar/LSI Matrix rate for that category was $796 and the USAO Matrix rate was $568). While it may be true that the data compiled by the ALM surveys, including the data underlying the USAO Matrix, "includ[es] . . . rates charged by attorneys across all practice areas," which "significantly undermines the degree to which [they] fairly reflect[] rates charged by attorneys engaged principally in complex federal litigation[,]" Makray, 159 F. Supp. 3d at 51; see also EPIC v. DHS, 218 F.Supp.3d 27, 49 (D.D.C. 2016); Malowane Decl. ¶ 17 n.11 (noting that the ALM survey includes rates for litigation specialties including family law, insured defense, and employee benefits), those surveys at least include a mix of large and small law firms, and thus are more likely to capture the overall mix of rates in this region. The Court concludes that the government's filings have sufficiently rebutted Mr. Craig's additional evidence in support of the Salazar/LSI Matrix rates.
Finally, Mr. Craig attempts to provide "evidence of recent fees awarded by courts or through settlement to attorneys with comparable qualifications handling similar cases." Makray, 159 F. Supp. 3d at 33 (quoting Eley, 793 F.3d at 101). Mr. Craig ascribes considerable weight to the fact that Mr. Seldon himself has received Salazar/LSI Matrix rates for successful Title VII verdicts. See Fee Mot. at 22, 38 (referencing Makray and Roman). While these previous fee awards certainly indicate that the Salazar/LSI Matrix rates may be reasonable, they do not represent the slam dunk argument that Mr. Craig apparently believes them to be. See Fee Mot. at 44 (stating that it "would be an impossible task" for the government to rebut Mr. Craig's evidence in support of the Salazar/LSI Matrix, in light of Makray and Roman). In the Roman filings, there is no indication that the government put forth the more recent USAO Matrix as an alternative to the Salazar/LSI Matrix, and the Makray court did not consider the USAO Matrix. See Makray, 159 F. Supp. 3d at 49-50 (distinguishing the Salazar/LSI Matrix from the previous USAO Laffey Matrix). These prior awards thus do not reflect a judgment that the Salazar/LSI Matrix more accurately reflects the prevailing market rate for Mr. Seldon's services. Similarly, while the D.C. Circuit recently observed that the Salazar/LSI Matrix provides a "conservative" estimate of the prevailing market rate for Title VII litigation, Salazar, 809 F.3d at 65, it too has not yet considered whether the USAO Matrix provides a more accurate estimate of the prevailing market rate, considering that Matrix's advantages laid out above.
Furthermore, courts in this District that have considered the two matrices at issue here have determined that the USAO Matrix is a more appropriate measure of the prevailing market rate. See Wadelton v. U.S. Dept of State, No. 13-0412, 2018 WL 4705793, at *12 (D.D.C. Sept. 30, 2018) (applying the USAO Matrix where "[t]he changes to the matrix, as well as the more recent survey data used to develop its rates, indicate that the 2015 version provides a more a useful starting point" compared to the Salazar/LSI Matrix (citation and internal quotation marks omitted)); Gatore, 286 F. Supp. 3d at 37 (holding that the defendant in a FOIA action showed "that the current USAO Matrix is the more accurate matrix for estimating the prevailing rates for complex federal litigation in this District"); DL, 267 F. Supp. 3d at 70 (holding that the defendant "submitted evidence showing that the USAO Matrix had more indicia of reliability and more accurately represents prevailing market rates" than the Salazar/LSI Matrix); Clemente, 2017 WL 3669617, at *5 (applying the USAO Matrix because it "specifically measures rates in the legal services industry, and is based on much more current data than the Salazar Matrix"); Nat. Sec. Counselors, 2017 WL 5633091, at *18 (applying the USAO Matrix where the plaintiff primarily addressed only the previous USAO Laffey Matrix, and therefore "did not meet his burden for demonstrating that the [Salazar/LSI Matrix] is superior" to the USAO Matrix); but see Hernandez v. Chipotle Mexican Grill, Inc., 257 F.Supp.3d 100, 115 (D.D.C. 2017) (applying the Salazar/LSI Matrix where the defendant failed "to provide any actual evidence that the [Salazar/LSI Matrix] rate is unreasonable in the context of any complex federal litigation . . . providing no affidavits or declarations of its own, no surveys of any rates charged in the Washington, D.C. legal market, no economic analyses of the prevailing market rate, or even examples of the rates charged by its own counsel for similar cases"). Mr. Craig has cited to no case in which a court in this District considered the evidence for and against the Salazar/LSI Matrix and the USAO Matrix and concluded that the Salazar/LSI Matrix more accurately captures the prevailing market rate.
For the reasons stated above, the Court concludes that while Mr. Craig has submitted evidence to support his argument that the Salazar/LSI Matrix should dictate a portion of his attorneys' fees, the government has rebutted that evidence with its own evidence that the USAO Matrix more accurately reflects the prevailing market rate for complex federal litigation of the type undertaken in this action. See Salazar, 809 F.3d at 64. Accordingly, the Court holds that the USAO Matrix dictates the reasonable hourly rates for work done by Seldon Bofinger's attorneys.
Typically, courts award fees at hourly rates based on the year in which the work was completed; historical rates rather than current rates. See, e.g., Reed v. District of Columbia, 134 F.Supp.3d 122, 136-37 (D.D.C. 2015), rev'd in part on other grounds, 843 F.3d 517 (D.C. Cir. 2016). However, to account for delays in payment of attorneys' fees, courts occasionally award (1) pre-judgment interest on fee awards, or (2) fees from past years at current hourly rates. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 284 (1989) ("An adjustment for delay in payment [i.e. applying current rates] is . . . an appropriate factor in the determination of what constitutes a reasonable attorney's fee"); West, 717 F.3d at 1034 ("If compensation for delay is necessary to provide a reasonable fee, it may be made `either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value.'" (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 556 (2010)); Craig, 197 F. Supp. 3d at 277 n.6 (applying the current hourly rate to past attorney work to compensate for a delay in payment in a Title VII case).
Here, Mr. Craig appears to request fees at current billing rates, even for past work, Fee Mot. at 23, a request the government seems to believe is unreasonable, Fee Opp'n at 10-11. While Mr. Craig does not support his request with any case law or explanation, this Court concludes that Mr. Craig's counsel is entitled to "some compensation for delay" in the resolution of this action. Fee Opp'n at 7. Mr. Craig initiated this lawsuit on August 6, 2014, and the matter did not go to trial until April 9, 2018, nearly 44 months later. See Tridico v. District of Columbia, 235 F.Supp.3d 100, 107 n.7 (D.D.C. 2017) (declining to apply current billing rates to the plaintiffs' counsel's past legal work where "[a]t approximately 19 months, the resolution of [the plaintiffs'] lawsuit was expeditious, as compared to other civil lawsuits that were resolved at trial in this district"). The Court accordingly concludes that "compensation for delay is necessary to provide a reasonable fee," and the Court will award fees at the 2017-2018 USAO Matrix rates for all past work undertaken by Seldon Bofinger's attorneys, based on those attorneys' years of experience during the trial, subject to additional reductions imposed below. West, 717 F.3d at 1034.
Having determined that the USAO Matrix should govern the hourly rates for Mr. Craig's current counsel, Seldon Bofinger, the Court turns to the reasonableness of the hours expended by that counsel. As noted, Mr. Craig asserts that Seldon Bofinger billed 100 hours on the EEO complaint stage ($43,871.74 in fees); 1,607 hours from the complaint through trial ($553,125.00 in fees);
First, the Court addresses the government's argument that Mr. Craig's fee award should be reduced because Seldon Bofinger worked an unreasonable number of hours on his case.
The government challenges Mr. Seldon's recorded hours for several stages of the action. See Fee Opp'n at 15-18. It argues that the hours expended by Mr. Seldon on the EEO complaint stage, the complaint, certain pretrial briefs, the motions for partial and full equitable relief, and the fee petition are excessive and unreasonable. Id. The Court has reviewed Mr. Seldon's time entries with "special caution," given "`the incentive' that a government's `deep pocket offers to attorneys to inflate their billing charges and to claim far more as reimbursement then would be sought or could reasonably be recovered from private parties.'" Heller v. District of Columbia, 832 F.Supp.2d 32, 47 n.13 (D.D.C. 2011) (quoting Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co., 743 F.2d 932, 941-42 (D.C. Cir. 1984)). Although the Court will not dissect each entry here, it "will discuss the [government's] challenges to the entries for" Mr. Craig's motions in limine, his motions for equitable relief, and his motion for fees "as illustrative of [the government's] concerns." Craig, 197 F. Supp. 3d at 281 (citing Copeland, 641 F.2d at 903 (noting that a court may avoid "[a] pleading-by-pleading examination")). It agrees that Mr. Seldon billed an excessive number of hours.
Mr. Craig requests fees for nearly 150 hours spent drafting and responding to motions in limine. See Fee Mot. Att. A-2, ECF No. 121-4 at 23-34. This time includes four hours spent drafting a memo listing anticipated motions in limine, id. at 23, and six hours assembling and reviewing prior motions in limine, id. at 24. As these entries suggest, Mr. Seldon has previously filed similar motions in limine in similar Title VII actions. For instance, in this action, Mr. Craig filed a motion in limine to exclude "the protected EEO activity of Mr. Craig," to prevent the government from improperly "paint[ing] Mr. Craig as a `claims minded' plaintiff." Pl.'s First Mot. Limine at 4-5, ECF No. 66.
Mr. Craig also requests fees for over sixty hours drafting his equitable relief briefing. See generally Fee Mot. Att. A-3, ECF No. 121-5; Fee Reply Att. A-5, ECF No. 134-1. Much of this briefing consists of stating the court's standards for awarding equitable relief, summarizing the relevant facts developed during the litigation, and requesting relief based on those facts. See Partial Inj. Mot. at 1-5 (identifying the "long-standing principles that guide a court in making an award of equitable relief"); Inj. Mot. at 1-5 (same). The briefs include little legal analysis that would require extensive research and drafting. Moreover, two pages of Mr. Craig's eleven-page motion for full equitable relief were devoted to the same relief requested in Mr. Craig's motion for partial equitable relief. See Inj. Mot. at 6-8 (requesting that Mr. Craig be assigned a dual-hat role). Again, considering the relief sought here and Mr. Seldon's extensive experience with Title VII cases, Mr. Seldon's time spent on the equitable relief stage was excessive.
Finally, Mr. Craig requests fees for nearly 150 hours spent during the fee motion stage. See generally Fee Mot. Att. A-4, ECF No. 121-6; Fee Reply Att. A-6, ECF No. 134-1. This time includes over fifty hours spent preparing Mr. Seldon's declaration. See Fee Mot. Att. A-4. However, Mr. Seldon's declaration in this case is similar in many ways to his declaration submitted in Makray. See generally Decl. of Robert C. Seldon, Makray, ECF No. 85-1. And Mr. Craig's fee motion is similar in many ways to the fee motion filed in Makray. See generally Fee Mot.; Pl.'s Petition Partial Award Salazar/LSI Rate, Makray, ECF No. 85. While the "time reasonably devoted to obtaining attorneys' fees in the context of litigation where the court must be petitioned for such an award is itself subject to an award of fees," Cobell v. Norton, 231 F.Supp.2d 295, 306-07 (D.D.C. 2002) (quoting Envtl. Def. Fund v. EPA, 672 F.2d 42, 62 (D.C. Cir. 1982)), one hundred hours' worth of fees for the preparation of Mr. Craig's fee motion would again be excessive, considering Mr. Seldon's experience in this area. See Robinson v. District of Columbia, No. 15-444, 2018 WL 5266879, at *17 (D.D.C. Oct. 23, 2018) (granting the plaintiff's fees on fees request for forty hours); McNeil v. District of Columbia, 233 F.Supp.3d 150, 162-63 (D.D.C. 2017) (granting the plaintiffs' fees on fees request for fifty hours).
In addition to debating the reasonableness of specific time expenditures by Mr. Seldon, both parties spend significant briefing space comparing the time spent in this action to the time spent by prevailing plaintiffs' attorneys in other Title VII actions. For instance, to rebut the government's challenge to the reasonableness of the hours expended, Mr. Craig argues that because the number of hours expended during this litigation were approximately the same as the number of hours expended during Makray and Roman, the number of hours is "inherently reasonable." Fee Mot. at 9. However, in both Makray and Roman, the plaintiff and the government agreed on the number of hours reasonably expended, and the courts in those cases did not evaluate the hours' reasonableness. See Makray, 159 F. Supp. 3d at 31 ("[T]he parties have stipulated to the total number of hours reasonably billed by the plaintiff's attorneys[.]"); Order Granting Motion for Entry of Final Judgment, Roman.
To rebut the government's challenge to the reasonableness of the hours expended, Mr. Craig submitted a supplemental declaration by Mr. Seldon. See Seldon Decl. II. In addition to distinguishing the cases relied upon by the government discussed in the previous paragraph, this declaration primarily asserts that the hours expended in this action were reasonable in light of the government's vigorous litigation tactics and refusal to negotiate. See id. ¶¶ 24, 28-30. This argument is well taken; as Mr. Craig notes, "[t]he government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response." Fee Reply at 25 (citing Copeland, 641 F.2d at 904).
Second, the Court must determine the degree to which Mr. Craig's attorneys' fee award should be reduced to account for Mr. Craig's limited success. The Court may make such a reduction, if warranted. See Hensley, 461 U.S. at 434-36 (explaining that when plaintiffs prevail on only some of their claims, "a fee award based on the [total] claimed hours" would be "excessive"); Merrick v. Dist. of Columbia, 316 F.Supp.3d 498, 506 (D.D.C. 2018) ("Courts . . . have the discretion to reduce attorneys' fees awards to account for partial or limited success on the merits by either eliminating specific hours or reducing the award as a whole." (citing Hensley, 461 U.S. at 436-37)); Craig, 197 F. Supp. 3d at 283 (same). And both parties agree that a reduction is appropriate here. See Fee Mot. at 26 (stating that the final step in Mr. Craig's "calculation of a lodestar award was to take account of plaintiff's success in this case and make an overall reduction"); Fee Opp'n at 1. The parties do not agree, however, on the appropriate degree of reduction.
When determining how to reduce a fee award for a partially successful plaintiff, a court must analyze the relationships between the successful and unsuccessful claims. See Hensley, 461 U.S. at 434-35. If the plaintiff presented "distinctly different claims for relief that are based on different facts and legal theories," then "counsel's work on one claim will be unrelated to his work on another claim." Id. In cases with such "distinctly different claims," "no fee may be awarded for services on [any] unsuccessful claim[s]." Id. But if the plaintiff's claims "involve a common core of facts[,]" or are based on "related legal theories[,]" "[m]uch of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis." Id. at 435. In cases with interrelated claims, the court should "focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id.
The government makes two arguments for why Mr. Craig's fee award should be significantly reduced for lack of success. First, the government argues that Mr. Craig was unsuccessful on several claims unrelated to his successful claim, and therefore that Mr. Craig should not be awarded fees for work on those unsuccessful claims. Fee Opp'n at 18-19. Second, the government argues that the overall relief obtained by Mr. Craig—$5,485 and minimal equitable relief—does not justify a fee award of approximately $700,000. Id. at 3-4. By contrast, Mr. Craig contends that all of his claims arose from the same core set of facts and his degree of success cannot be measured only by his relief at trial, considering the core equitable relief he seeks. See Fee Reply at 7, 12. The Court concludes that Mr. Craig's claims were sufficiently interrelated that a claim-by-claim reduction is only feasible for the EEO complaint stage. However, the Court also concludes that a downward fee adjustment is appropriate considering Mr. Craig's limited overall success.
The government claims that Mr. Craig's fee award should be reduced on a claim-by-claim basis because Mr. Craig was only successful on one of his original claims, and while Mr. Craig "argues that virtually all of his claims were interrelated, this is not the case." Fee Opp'n at 18-19. As noted, fees may be reduced for time spent on ultimately unsuccessful claims, but those claims generally must be both unsuccessful and unrelated to the successful claims. See Hensley, 461 U.S. at 434-35. Claims are completely unrelated when they are "distinctly different in all respects, both legal and factual, from [the] plaintiff's successful claims." Radtke v. Caschetta, 254 F.Supp.3d 163, 175 (D.D.C. 2017) (internal quotation marks omitted) (quoting Morgan v. D.C., 824 F.2d 1049, 1066 (D.C. Cir. 1987)). In such circumstances, a court should not award fees for the time spent on the unsuccessful claims. Craig, 197 F. Supp. 3d at 283. However, when claims "involve a common core of facts" or are "based on related legal theories," "[m]uch of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis." Id. (quoting Hensley, 461 U.S. at 435). Under those circumstances, "the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435.
Having reviewed the record and overseen this case from its inception through trial and beyond, the Court concludes that only Mr. Craig's EEO complaints may be addressed on a claim-by-claim basis. Mr. Craig filed at least four administrative EEO complaints before bringing this action. See Fee Opp'n Ex. E, ECF No. 130-5 (collecting Mr. Craig's EEO complaint declarations). Of these complaints, only one of them, 13-0024, focused on Mr. Craig's placement and treatment in the Executive Lead position; the claim for which Mr. Craig was ultimately successful at trial. See id. at 1. The other EEO complaints asserted claims that were ultimately unsuccessful, arising from Mr. Craig's non-selection to the A/D Manufacturing position in 2008 and 2014, see id. at 20, 53 (13-0661 & 14-0762), Mr. Craig's year-end reviews and bonus awards, see id. at 35, 76 (14-0311 & 15-1466), and other position changes not directly related to his assignment to the Executive Lead, see id. at 72 (claiming that the Mint's decision to alter Mr. Craig's reporting structure was discriminatory and retaliatory).
Mr. Craig argues that the EEO complaints arose from a common core of facts, all of which were necessary to his trial victory, and therefore that the Court cannot analyze them on a claim-by-claim basis. Fee Mot. at 28. For instance, Mr. Craig argues that the EEO complaints related to his non-selection to the A/D Manufacturing position involved facts that "would have been offered at trial" in pursuing his successful claim because they showed that the Executive Lead position harmed Mr. Craig's career prospects. Id. Similarly, Mr. Craig argues that the facts underlying his unsuccessful EEO complaint challenging his 2014 year-end performance bonus were "essential" because they showed that Mr. Craig did not have classified duties as the Executive Lead. Id. at 29. Mr. Craig also notes that he pursued very little discovery with respect to his claims arising from unsuccessful EEO complaints. Id. at 28-29.
However, even if Mr. Craig's unsuccessful EEO complaints arose from facts that were ultimately used to support his successful claim before this Court, Mr. Craig has not demonstrated why time spent on those EEO complaints at the administrative stage should not be discounted. Presumably, had Mr. Craig only pursued his Executive Lead-related claim, the facts necessary for him to succeed on that claim would have emerged through discovery, regardless of whether Mr. Craig filed other EEO complaints related to those facts. In other words, Mr. Craig would be allowed discovery on those issues if relevant to his successful claim without the need to have independently administratively exhausted specific EEO complaints based on those issues.
Accordingly, because only one of Mr. Craig's administrative EEO complaints was successful, the Court concludes that Mr. Craig is only entitled to attorneys' fees for that complaint. It appears that Mr. Craig's prior counsel primarily worked on Mr. Craig's successful EEO complaint, so the Court will not reduce that counsel's fees on a claim-by-claim basis. See Fee Mot. Att. C, ECF No. 121-8; Seldon Decl. ¶ 75 n.18. On the other hand, Mr. Craig's current counsel worked on each of Mr. Craig's EEO complaints, and Mr. Craig has helpfully categorized his time entries for this stage of the litigation by EEO complaint. See Fee Mot. Att. A-1, ECF No. 121-3. The Court holds that Mr. Craig is only entitled to attorneys' fees for time spent on the successful EEO complaint, which Mr. Seldon contends was 31.5 hours. Seldon Decl. ¶ 76.
While Mr. Craig's EEO complaints may be addressed on a claim-by-claim basis, Mr. Craig's claims litigated before this Court arose from a "common core of facts," and thus were too closely intertwined for the Court to reduce Mr. Craig's fee award on a claim-by-claim basis. Hensley, 461 U.S. at 435. The claims dismissed at the motion to dismiss and motion for summary judgment stages involved the same core set of facts underlying the claims that reached the trial stage; facts related to the timing of Mr. Craig's EEO complaints compared to the timing of certain personnel decisions, and the Mint's proffered reasons for those personnel decisions (whether allegedly based on race or retaliation). For instance, the government successfully moved for summary judgment on Mr. Craig's discrimination claims arising from his assignment to the Executive Lead position, his non-selection for the A/D Manufacturing position in 2014, and his assignment to the A/D ESH position, but his retaliation claims arising from those actions, which turned on the same set of facts and whether the Mint's stated reasons for its actions were pretextual, survived to trial. Craig II, 278 F. Supp. 3d at 66-68, 75. Similarly, while Mr. Craig's claims arising from his non-selection to the A/D Manufacturing position in 2008 and 2014 and his reassignment out of the A/D SAM position in 2012 were ultimately unsuccessful, the facts underlying those claims were necessary to show that Mr. Craig's assignment to the Executive Lead position was harmful to his career prospects because it resulted in a significant reduction in his responsibilities and authority. See Fee Mot. at 35-36; Fee Reply at 7-9.
Considering the "overlapping factual issues and related legal theories" that form the foundation of Mr. Craig's action, the time that Mr. Craig's counsel spent on the unsuccessful claims "undoubtedly contributed to the litigation of [his]" successful retaliation claim. Craig, 197 F. Supp. 3d at 197 (citing Hensley, 461 U.S. at 435 n.11 (disapproving of "a mathematical approach comparing the total number of issues in the case with those actually prevailed upon" (internal quotation marks omitted))). Because much of Mr. Craig's counsels' time was devoted to litigating the case as a whole, the Court will not attempt to parse Mr. Craig's time records to reduce the fee award based on time spent on unsuccessful claims. Rather, it will evaluate Mr. Craig's overall degree of success.
Having determined that a claim-by-claim reduction is mostly impractical, the Court must determine the extent to which Mr. Craig's fee award should be reduced for his overall lack of success. As noted, "[t]here is no precise rule or formula for making [fee] determinations. . . . The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-37. Accordingly, the Court will consider the relief obtained by Mr. Craig in comparison to the relief sought—both monetary and equitable—without applying a rigid mathematical approach. See Radtke, 254 F. Supp. 3d at 171 ("[F]ees awarded need not necessarily be proportionate to the amount recovered by the prevailing party, and should not be reduced solely to achieve proportionality." (citations omitted)).
The government ascribes significant weight to the fact that the attorneys' fee award sought by Mr. Craig is 143 times larger than Mr. Craig's damages award. Fee Opp'n at 20. However, as even the government admits, Fee Opp'n at 22, simply because an attorneys' fee award is greater than the damages and injunctive relief awarded does not automatically make that fee award excessive. See Thomas v. Nat'l Football League Players Ass'n, 273 F.3d 1124, 1129 (D.C. Cir. 2001) ("That the fees awarded are . . . nearly five times the amount of plaintiff's recovery does not make them excessive." (internal quotation marks omitted)). "There is, of course, no mathematical rule requiring proportionality between compensatory damages and attorneys' fees awards, and courts have awarded attorneys' fees where plaintiffs recovered only nominal or minimal damages." Thompson v. Int'l Ass'n of Machinists & Aerospace Workers, 664 F.Supp. 578, 581 (D.D.C. 1987) (citation omitted). As acknowledged by another court in this District, "the use of the lodestar approach will, at times, necessitate fee awards that exceed the aggregate recovery to their clients." Driscoll v. George Washington Univ., 55 F.Supp.3d 106, 113-14 (D.D.C. 2014). But "[t]his is no reason to reduce fee awards given the policy objectives of fee-shifting statutes." Radtke, 254 F. Supp. 3d at 172.
On the other hand, the difference between the relief obtained by a plaintiff and the relief sought by that plaintiff is a key factor in determining the proper success-based fee reduction. See Radtke, 254 F. Supp. 3d at 173 ("District courts should consider the disparity between the amount of damages sought versus the amount of damages ultimately awarded." (citing Combs v. City of Huntington, Texas, 829 F.3d 388, 395-96 (5th Cir. 2016)). This evaluation should account for both monetary and equitable relief sought and obtained. See Hensley, 461 U.S. at 455 n.11 ("[A] plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time."). "Thus, `[a]lthough a substantial disproportionality between a fee award and a verdict, standing alone, may not justify a reduction in attorney's fees, a lack of litigation success will.'" Radtke, 254 F. Supp. 3d at 173 (quoting McAfee v. Boczar, 738 F.3d 81, 94 (4th Cir. 2013)).
And Mr. Craig's counsel ultimately secured a very limited portion of the monetary and equitable relief sought. First, as the government notes, Fee Opp'n at 22, Mr. Craig's complaint sought compensatory damages, which are statutorily capped at $300,000, 42 U.S.C. § 1981a(b)(3), yet Mr. Craig only obtained $5,485 in compensatory damages at trial, Fee Opp'n at 3; see also Am. Compl. at 29; Fee Opp'n Ex. F, ECF No. 130-6 (collecting Mr. Craig's requests for relief attached to his EEO complaints). Second, Mr. Craig's complaint sought backpay "in the amount of the difference of a performance based bonus . . . for [fiscal year] 2012 and a Fully Successful bonus," Am. Compl. at 29, and the Court's summary judgment decision in favor of the government prevented Mr. Craig from receiving that relief, Craig II, 278 F. Supp. 3d at 57-59. Third, and perhaps most importantly, while the Court does not believe that the core relief sought by Mr. Craig was, as the government asserts, a promotion to the A/D Manufacturing position, Fee Opp'n at 21, Mr. Craig himself states that the core relief sought was "equitable relief to protect his career and allow him to move forward without the anchor of having been sidelined in a meaningless position for a year and a half around his neck." Fee Reply at 14. The Court is sympathetic to Mr. Craig's harm but, as discussed above, it is not granting the key equitable relief sought in multiple motions; installation in a dual hat, "career enhancing" role. See generally Partial Inj. Mot.; Inj. Mot; see also Mazloum v. District of Columbia, 654 F.Supp.2d 1, 4 (D.D.C. 2009) (reducing the plaintiff's requested fees because the plaintiff "was wholly unsuccessful on his primary discrimination claim"). And while holding the Mint accountable for conduct that a jury found illegal is an important contribution to the public interest, Fee Reply at 14-15, that contribution does not outweigh the fact that Mr. Craig's counsel was unable to obtain for him a large portion of the relief sought.
In urging the Court to reduce the fee award by only approximately 26 percent, Mr. Craig relies heavily on this Court's prior holding in Craig. While that case illustrates the analytical framework governing a success-based fee reduction, it is factually inapposite here. In Craig, this Court recognized that while the plaintiff only succeeded on "one claim of the numerous claims initially pressed," she prevailed on her "central claim," and the dismissal of other claims and defendants "did not materially reduce the damages or remedies that [she] was able to seek, and that she ultimately obtained, at trial." Craig, 197 F. Supp. 3d at 283-84. Moreover, the plaintiff obtained a successful verdict on every claim that reached trial. Id. at 284. Here, on the other hand, Mr. Craig did not obtain the core relief sought—a retroactive promotion to a "career enhancing" position—and Mr. Craig's failure to obtain successful verdicts related to his non-selection to the A/D Manufacturing position and his reassignment from the A/D SAM position reduced his ability to receive a "promotion" to one of those positions as part of his equitable relief. Additionally, Mr. Craig was successful on only one of three claims at trial. See Jury Verdict.
Mr. Craig also argues that the Court should not reduce his counsels' fees incurred during the equitable relief and attorneys' fees stages because the "equitable relief Mr. Craig is seeking is tailored to his success at trial." Fee Mot. at 37. However, Mr. Craig cites no case law in support of this argument. And it is well established that attorneys' fee awards for both fee motions, see Gatore, 286 F. Supp. 3d at 50; EPIC v. DHS, 982 F.Supp.2d 56, 64 (D.D.C. 2013), and equitable relief motions, see Robinson, 2018 WL 5266879, at *15, may also be reduced for lack of success. Such reductions are appropriate here, where Mr. Craig's counsel failed to obtain the primary equitable relief sought and failed to obtain the full measure of attorneys' fees sought.
In summary, Mr. Craig obtained less than ten percent of the compensatory damages the jury could have awarded, and he obtained roughly half of the equitable relief sought, albeit not the core relief of a "career enhancing" dual hat role. However, the jury's verdict did vindicate Mr. Craig's rights, and that verdict may deter the agency from similarly retaliating against other Mint employees. Accordingly, because Mr. Craig obtained less than half of the total relief sought, the Court concludes that a sixty-five percent reduction of Mr. Craig's fee award is necessary to reflect "the significance of the overall relief obtained by [Mr. Craig] in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435; see also Radtke, 254 F. Supp. 3d at 175 ("Given plaintiffs lack of success on two major issues that would otherwise have greatly increased their damages, the Court finds that a downward departure is warranted.").
Mr. Craig also requests reimbursement for $11,660.04 in costs, to which the government does not object, and $8,853.20 in expert fees for Mr. Davidson's services. See Fee Mot. at 10; Fee Reply at 27; Fee Mot. Att. B; Seldon Decl. II ¶ 59. "An award of costs for copying, faxing and postage . . . [is] customarily included in fees awards." Kaseman v. District of Columbia, 329 F.Supp.2d 20, 28 n.7 (D.D.C. 2004); see also Sexcius v. District of Columbia, 839 F.Supp. 919, 927 (D.D.C. 1993) (noting that "[r]easonable photocopying, postage, long distance telephone, messenger, and transportation and parking costs are customarily considered part of a reasonable `attorney's fee'"). Such costs are only shifted to the defendant if they are reasonable, see Bailey v. District of Columbia, 839 F.Supp. 888, 892 (D.D.C. 1993), and if they are "related nontaxable expenses." Fed. R. Civ. P. 54(d)(2)(A) (emphasis added). Moreover, Title VII explicitly allows for an award of "reasonable . . . expert fees." 42 U.S.C. § 2000e-5(k).
While Mr. Craig requests reimbursements for nontaxable expenses—such as transportation costs, meals, and printing—he also appears to request reimbursement for taxable expenses. Fee Mot. at 49-50 ("Several [costs] may be taxable and therefore need not be part of a fee petition"); Fee Mot. Att. B. Under 28 U.S.C, § 1920 and Local Rule 54.1(d), "Clerk's fees," deposition transcripts, witness fees, costs of subpoena service, and certain other reimbursable items are taxable by the Clerk upon receipt of a bill of costs submitted on a court-approved form. LCvR 54.1(a) & 54.1(d). Mr. Craig seeks reimbursement for, among other taxable expenses, a filing fee, a deposition transcript, and witness fees. Fee Mot. Att. B. Although these line items appear to be taxable expenses that must normally be submitted through a bill of costs, because the government does not contest Mr. Craig's costs the Court will award them without requiring this extra step. See Fee Opp'n at 2 n.1 (stating that the government "does not seek a reduction" of Mr. Craig's request for costs).
While the government concedes Mr. Craig's request for costs, it has not had the opportunity to challenge Mr. Craig's request for Mr. Davidson's expert fees. Mr. Davidson was retained to support Mr. Craig's argument for the application of Salazar/LSI billing rates, an argument that was ultimately unsuccessful. Fee Mot. at 23. Accordingly, the Court will exercise its discretion to consider Mr. Craig's success when awarding attorneys' fees and costs, and it will deny Mr. Craig's request for expert fees associated with his unsuccessful argument regarding the prevailing market rate for Mr. Seldon's services. See Hensley, 461 U.S. at 436-37; see also Westfahl v. District of Columbia, 183 F.Supp.3d 91, 102 (D.D.C. 2016) (denying the prevailing plaintiff's request for costs associated with the plaintiff's unsuccessful claims, and reducing the total cost award to reflect the plaintiff's overall success).
For the reasons stated above, the Court holds that Mr. Craig is entitled to $307,000.28 in attorneys' fees for Seldon Bofinger's work, $4,599.49 in attorneys' fees for Mr. Craig's former counsel's work, and $11,660.04 in costs. This award is calculated as follows.
The Court applied the 2017-2018 USAO Matrix rates to Seldon Bofinger's billable hours from the action's inception through trial. The Court applied the rates corresponding to the relevant attorneys' years of experience as of the April 2018 trial. The following chart summarizes the Court's calculation.
The Court also applied the 2017-2018 USAO Matrix rates to Seldon Bofinger's billable hours expended on the ultimately successful EEO complaint, Mint No. 13-0024. See Seldon Decl. ¶ 76; Fee Mot. Att. A-1. The following chart summarizes the Court's calculation.
With these adjustments, Mr. Craig's fee award for Seldon Bofinger's work, without additional reductions, would have been $1,031,933.70. This award incorporates the following fees:
Finally, the Court reduced Mr. Craig's award by fifteen percent to account for excessive billing, and then reduced the award by another sixty-five percent to account for Mr. Craig's lack of success. Thus, the total award for Seldon Bofinger's work is
For the foregoing reasons, it is hereby
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Mr. Craig concedes that he was considered for the Superintendent position at the Mint's Denver facility, an SES-level position, but appears to have declined that consideration because he did not want to relocate from Washington, D.C. Partial Inj. Mot. at 13; EEO Investigative Affidavit of Lisa Nicholson ("Nicholson Aff.") at 6, ECF No. 110-18. His apparent refusal to accept a career enhancing opportunity because he did not want to relocate in some ways makes him even more dissimilar from Mr. Croft and Mr. Landry. Mr. Craig does not simply want any dual hat role, he wants a dual hat role that keeps him in the same city; a role that Mr. Croft and Mr. Landry do not appear to have been offered, at least during the retaliation period at issue here.
