Fonville v. District of Columbia , 38 F. Supp. 3d 1 ( 2014 )


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

Document Info

Docket Number: Civil Action No. 2002-2353

Citation Numbers: 38 F. Supp. 3d 1

Judges: Judge Emmet G. Sullivan

Filed Date: 4/14/2014

Precedential Status: Precedential

Modified Date: 8/31/2023

Authorities (29)

Keyes v. District of Columbia , 372 F.3d 434 ( 2004 )

General William C. Westmoreland, Ambassador Richard Helms v.... , 770 F.2d 1168 ( 1985 )

Steele v. Schafer , 535 F.3d 689 ( 2008 )

Marcia R. Harrison v. Otis R. Bowen, Secretary, H.H.S , 815 F.2d 1505 ( 1987 )

O'Donnell, Philip v. Barry, Marion S. , 148 F.3d 1126 ( 1998 )

Role Models Amer Inc v. White, Thomas , 353 F.3d 962 ( 2004 )

Burton v. Office of Employee Appeals , 30 A.3d 789 ( 2011 )

Oparaugo v. Watts , 884 A.2d 63 ( 2005 )

Leonard v. District of Columbia , 794 A.2d 618 ( 2002 )

darryl-covington-tracy-dew-bey-david-edwards-lee-roy-ferguson-raymond-gant , 57 F.3d 1101 ( 1995 )

stanley-c-mazaleski-v-dale-h-treusdell-individually-and-in-his-capacity , 562 F.2d 701 ( 1977 )

national-association-of-concerned-veterans-appelleescross-appellants-v , 675 F.2d 1319 ( 1982 )

Moore v. Hartman , 571 F.3d 62 ( 2009 )

Shirley P. Langevine v. District of Columbia , 106 F.3d 1018 ( 1997 )

Rosen v. American Israel Public Affairs Committee, Inc. , 41 A.3d 1250 ( 2012 )

District of Columbia v. Coleman , 667 A.2d 811 ( 1995 )

Jolevare v. Alpha Kappa Alpha Sorority, Inc. , 521 F. Supp. 2d 1 ( 2007 )

Alexis v. District of Columbia , 44 F. Supp. 2d 331 ( 1999 )

Holman v. Williams , 436 F. Supp. 2d 68 ( 2006 )

Lane v. Random House, Inc. , 985 F. Supp. 141 ( 1995 )

View All Authorities »