Hudson v. American Federation of Government Employees ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EUGENE HUDSON, JR.,
Plaintiff,
v. Civil Action No. 17-2094 (JEB)
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
Defendant.
MEMORANDUM OPINION
“[T]he original merits of the case have long disappeared from the face of the earth. . . .
It’s about nothing but costs now,” bemoaned John Jarndyce, a long-suffering participant in Bleak
House’s tale of the interminable lawsuit that bore his name. He could just as well have been
speaking about this case. After half a decade of litigation, and with the merits resolved long ago,
all that remains of the present dispute between Plaintiff Eugene Hudson and Defendant American
Federation of Government Employees is Hudson’s Motion for Attorney Fees and Costs. Hudson
contends that his counsel, Marlene “Kemi” Morten, is entitled to over $1.4 million dollars in
fees, plus costs; AFGE counters that her litigation misconduct warrants an outright denial of fees.
The Court concludes that the proper award totals $313,855 and will accordingly grant the Motion
in part and deny it in part.
I. Background
The Court has told the tale of the parties’ underlying dispute many times over. See, e.g.,
Hudson v. AFGE, No. 17-2094, 2021 WL 5083436, at *1 (D.D.C. Nov. 2, 2021); Hudson v.
AFGE, No. 17-2094, 2020 WL 1275685, at *1 (D.D.C. Mar. 17, 2020); Hudson v. AFGE, 318 F.
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Supp. 3d 7, 9–10 (D.D.C. 2018); Hudson v. AFGE, 308 F. Supp. 3d 388, 391–92 (D.D.C. 2018);
Hudson v. AFGE, 281 F. Supp. 3d 11, 12–13 (D.D.C. 2017); Hudson v. AFGE, No. 17-1447,
2017 WL 4325681, at *1 (D.D.C. Sept. 27, 2017). It will here offer an abridged narrative of the
key facts, focusing on the procedural history most relevant to this Motion.
Hudson, who is Black, was elected AFGE’s National Secretary-Treasurer (NST) in 2012
and re-elected in 2015. Hudson, 2021 WL 5083436, at *1. He served under AFGE National
President J. David Cox. Id. Hudson’s numerous lawsuits in this district concern his tumultuous
relationship with Cox. In the present action, filed in October 2017, Plaintiff alleged that Cox
took several adverse actions against him because of his race. Id.; ECF No. 1 (Compl.), ¶¶ 44–51
(bringing four Counts under Title VII and 42 U.S.C. §§ 1981 and 1983); see also ECF No. 1-2
(Civil Cover Sheet) at 2 (seeking $5,000,000 in damages).
On AFGE’s motion, the Court in 2018 dismissed three of Hudson’s four counts in full and
substantially narrowed the last. Hudson, 308 F. Supp. 3d at 396. In 2020, the Court granted in
part AFGE’s Motion for Summary Judgment on the narrowed Complaint. Hudson, 2020 WL
1275685, at *10. Hudson thus went to trial on only his allegations that AFGE had
discriminatorily stripped him of authority over expense vouchers and of oversight of the Human
Resources and Information Services Departments. Id. at *3–10.
The Court presided over a six-day jury trial starting on June 7, 2021. Hudson, 2021 WL
5083436, at *2. At the close of trial, the jury returned a verdict for Plaintiff on one of those two
remaining claims. Id.; see also ECF No. 112 (Verdict Form) at 1. It found that AFGE had
discriminated against Hudson when it removed the two departments from his supervision, but not
when it revoked his authority to approve expense vouchers. The jury accordingly awarded
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Hudson $100,000 for emotional distress and declined to award punitive damages. Hudson, 2021
WL 5083436, at *2; see also Verdict Form at 1–2.
AFGE moved for judgment as a matter of law a month later, a motion the Court denied.
Hudson, 2021 WL 5083436, at *2, 11. AFGE appealed, and the Court of Appeals affirmed this
Court’s denial by unpublished judgment. See Hudson v. AFGE, No. 21-7133, 2022 WL
15798719, at *1 (D.C. Cir. Oct. 28, 2022). In the meantime, on July 14, 2021, Hudson filed his
first Motion for Attorney’s Fees and Costs, along with an attachment detailing them. See ECF
Nos. 120 (First Fee Motion); 120-2 (First Bill of Fees and Costs). The Court stayed that Motion
until the Court of Appeals’ mandate issued. See ECF No. 153 (Order Staying Fee Motion).
With the appellate process resolved, the Court held a status hearing on January 4, 2023.
See ECF No. 161 (Transcript of Jan. 4, 2023, Status Hearing). In that hearing, AFGE took issue
with Hudson’s thinly veiled threats that he had made in his original fee Motion that, “should
litigation . . . be required” regarding that Motion, counsel “reserves the right to” seek a higher
hourly rate and bill for additional hours that she had previously written off. See First Fee Mot. at
9; ECF No. 120-1 (Affidavit of Attorney Kemi Morten), ¶¶ 34, 68, 80 (repeatedly emphasizing
same); First Bill of Fees and Costs at 17 (same). Indeed, in the parties’ first Joint Status Report
following the Court of Appeals’ mandate, Hudson had followed through on that threat and noted
that he “intends to file a revised [b]ill” adding fees that he had excluded from his original
Motion. See ECF No. 159 (Dec. 19, 2022, Joint Status Report) at 2. The Court made clear
during the January status conference that such adding would be improper:
THE COURT: Now, the one thing that they [AFGE] raise and that I
agree with them is that if you [Morten] file a revised motion, I’m
not going to let you seek more fees prior to July 14th, 2021. In other
words, there’s some intimation that you cut some fees –
MS. MORTEN: Oh, no.
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THE COURT: -- that you wanted to bring back. Okay, so that’s just
– I’m going to make that clear.
Tr. of Jan. 4, 2023, Hearing at 10:18–25. The Court also emphasized to Morten that any revised
fee motion would be her final chance to offer evidence in support of her fees:
THE COURT: But it’s not going to be a question of my saying, well,
you didn’t really support this, I’ll give you another chance to file
something else. If you don’t support it fully, I’ll cut fees.
Id. at 19:16–19.
The next month, on February 13, 2023, Hudson filed his revised Motion for Attorney’s
Fees and Costs — the Motion at issue here. See ECF No. 164 (Second Fee Motion). He
contemporaneously emailed an Excel spreadsheet titled “REVISED Bill of Trial Fees and Costs”
to chambers and to counsel for AFGE. See Email of Feb. 2, 2023; see also ECF No. 170 (AFGE
Opp.) at 1 (“Plaintiff’s submission includes . . . (iii) an Excel spreadsheet emailed to Chambers
. . . .”). That Motion, which seeks over $1.4 million in trial and appellate fees and costs, is now
ripe. See AFGE Opp. at 1 (describing Motion as combined “Motions for attorney’s fees and
costs in this Court and attorney’s fees and costs in the Court of Appeals”).
II. Analysis
Not surprisingly, the parties here are far apart and their disputes are many. The Court will
spend the bulk of its time with the request for attorney fees — which requires analyzing the
applicable rate, the number of hours, any adjustments, and hours expended on this litigation —
before finishing with costs.
A. Attorney Fees
Under the “American Rule,” each party ordinarily bears its own attorney fees. See
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 245 (1975). This default rule,
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however, can be altered by express statutory authorization. Id. Section 1988 is one such statute.
See 42 U.S.C. § 1988(b). It provides for an award of a “reasonable attorney’s fee” to the
“prevailing party” of a suit brought to enforce certain civil-rights laws, including those at issue
here. The goal of this provision is to “ensure ‘effective access to the judicial process’ for persons
with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep.
No. 94-1558, at 1 (1976)). The awarded fee, accordingly, should be “sufficient to induce a
capable attorney to undertake the representation of a meritorious civil rights case.” Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). It should not, however, “produce windfalls to
attorneys.” Blum v. Stenson, 465 U.S. 886, 897 (1984) (citation omitted).
The basic framework governing a fees calculation is well settled. “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)). The number arising from the multiplication of the first two prongs of this test is dubbed
the “lodestar” amount, which is awarded a presumption of reasonableness. See Bd. of Trustees
of Hotel & Restaurant Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). A court
may then employ a multiplier, either upward or downward, where compelling factors not
accounted for in the lodestar calculation require adjustment to render the fee reasonable. See
Perdue, 559 U.S. at 552–53; see also Baylor v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d
939, 957–60 (Henderson, J., concurring) (emphasizing district courts’ discretion to reduce fees as
sanction for excessive fee request or other litigation misconduct). The fee applicant — here,
Hudson — bears the burden at each step of this tripartite calculation. See Covington v. District
of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).
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The Court begins with the applicable hourly rate and then turns to the number of hours
reasonably expended. It next considers whether any general reductions are warranted, and it
concludes this Part by analyzing whether and to what extent Hudson is entitled to reimbursement
for the time spent preparing this fees petition, known colloquially as “fees on fees.”
Rate
The determination of a reasonable hourly rate itself turns on three factors, called the
“Covington” factors. They are: “(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, 57 F.3d at 1107). This rate does not differ based on
whether an attorney is engaged in private or public practice. See Blum, 465 U.S. at 894 (“It is
also clear from the legislative history that Congress did not intend the calculation of fee awards
to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal
services organization.”). In rendering its calculation, the court is tasked with “fixing the
prevailing hourly rate . . . with a fair degree of accuracy.” Covington, 57 F.3d at 1109 (internal
quotation omitted).
At the outset, the Court notes a fundamental problem: Plaintiff’s counsel has provided
almost no evidence to support key inputs to the rate calculation. Despite her lengthy briefing,
her two declarations, see ECF Nos. 165 (First Declaration of Marlene “Kemi” Morten), 185-1
Exh. 4 (Second Declaration of Marlene “Kemi” Morten), and her revised spreadsheet, the Court
is left guessing at many key facts relevant to counsel’s fee request. That is not for lack of
opportunity or notice. Indeed, the Court specifically warned counsel that she must offer support
on each element of her fee request. See Tr. of Jan. 4, 2023, Hearing at 19:16–19 (Court: “But
it’s not going to be a question of my saying, well, you didn’t really support this, I’ll give you
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another chance to file something else. If you don’t support it fully, I’ll cut fees.”). Determined
to do its best with what it has, the Court will nonetheless march through the factors in turn.
a. Attorney’s Billing Practices
Counsel submits no evidence regarding her typical business practices. She has offered
nothing to demonstrate what her standard rate is, in what range it falls, or whether she has no
such established rate because cases typically come to her using alternative arrangements. When
Defendant pointed this out, Plaintiff filed a second declaration containing no further information
about her standard rate. See generally Second Morten Decl. Counsel offers only a bald assertion
that her “typical” hourly billing rate is $950 an hour, see First Fee Mot. at 8–9, but nothing to
substantiate such a claim — not a single case she has worked on in which she commanded such
rates, not even a single other case she has tried. Cf. Covington, 57 F.3d at 1108 (“[T]he law was
not written to subsidize attorneys who charge below-market rates because they cannot command
anything more.”).
Defendant, by contrast, offers evidence. In a sworn declaration, AFGE’s counsel avers
that Hudson’s attorney has in another case declared that she was charging that client $450 an
hour. See ECF No. 170-1 (Declaration of Devki K. Virk), ¶ 4; id., Exh. 2 (Morten claiming
entitlement “to payment of my legal fees at the hourly rate of $450” in Doe #1 v. AFGE, No. 20-
1558 (D.D.C.)). As AFGE recognizes, this fact alone hardly constitutes conclusive proof that
Morten charges that as her standard market rate. See AFGE Opp. at 8. Morten also emphasizes
that in that case she sought fees at a higher rate and would accept $450 an hour only if the court
did not award her such fees. See ECF No. 185 (Reply) at 2. Nonetheless, that rate is just about
the only concrete information that the Court has to go on here, as Hudson has offered nothing in
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his Reply to suggest that she typically commands a higher rate. The Court thus takes that $450
number as a starting point.
b. Attorney’s Skill, Experience, and Reputation
Hudson has similarly left the Court adrift with respect to evidence on Morten’s skill,
experience, and reputation. In the typical case, counsel’s declarations discuss her years of
litigation practice, approximate total number of civil matters, number of jury trials or appellate
arguments, and the like. See, e.g., Lewis v. D.C., No. 15-521, 2018 WL 6308722, at *4 (D.D.C.
Dec. 3, 2018). Here, by contrast, counsel offers none of that. Her first declaration attests that
she “has worked for the past 40 years for the Unfoldment Law Office” — and that is it. See First
Morten Decl., ¶ 1. That declaration does not describe her legal practice; offer any detail on the
number, type, or complexity of matters she has worked on; or even state that during that time she
ever tried a case.
AFGE counters with evidence that during most of that time Unfoldment was not a law
office but a provider of drug rehabilitation and social services. See AFGE Opp. at 9; see also,
e.g., United States v. Harrington, 808 F. Supp. 883, 886 (D.D.C. 1992) (referring to “Kemi
Morten, the Executive Director” of “the Unfoldment Program, a 48-week residential drug
treatment program at Lorton Penitentiary”). Indeed, it appears that Unfoldment had been a law
office only for seven years prior to the 2021 trial. See AFGE Opp. at 9–10. In response, Morten
submitted a second declaration, which seems to agree with AFGE’s characterization of
Unfoldment. See Second Morten Decl., ¶ 9 (“I developed and ran Unfoldment’s prison-based
drug treatment program at Lorton Correctional Complex . . . .”). She justifies her 40-year figure,
however, with the threadbare assertion that she “maintained a private practice of law since 1979,
including a part-time law practice while working at the D.C. Council and for Unfoldment, Inc.”
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and that she “regularly provided prisoners in my program and their family members with no to
low cost [sic] as part of my private practice.” Id., ¶¶ 4, 11. Morten offers nothing to substantiate
those claims that she has been continuously practicing law for the past 40 years. As the burden
is hers, the Court thus cannot award her fees based on 40 years’ experience; seven years appears
to be a more appropriate number of years on this record, but neither figure seems sufficiently
supported to justify moving upward from the $450 rate.
Regarding reputation, Morten offers no further specific details. AFGE, by contrast,
provides a thorough accounting of numerous occasions on which Plaintiff’s counsel has been
sanctioned by other judges in this district. See AFGE Opp. at 11 (listing multiple examples in
past three years). In one of those cases, a judge here held Morten in civil contempt for
repeatedly defying court orders with “utterly baseless” explanations and in “total disregard for
the Court’s authority.” Hillman v. AFGE, No. 18-999, 2020 WL 5763580, at *4 (D.D.C. Sept.
28, 2020). Indeed, during the pendency of this very Motion, AFGE submitted as supplemental
authority an April 20, 2023, decision in which another judge, Judge John Bates, dismissed with
prejudice a challenge Morten had brought against AFGE because counsel “has time and again
demonstrated what can only be described as disrespect and disregard for the Court’s orders,”
with counsel’s “flagrant transgressions” and the “breadth and import of the misconduct” grave
enough to warrant outright dismissal. See ECF No. 172 (Supplemental Authority) at 12; Doe #1
v. AFGE, No. 20-1558, 2023 WL 3019876, at *6 (D.D.C. Apr. 20, 2023). This Court itself has
chastised Morten for making “factual misrepresentations” in a related case on behalf of the same
client that “fall far short of the veracity and candor the Court expects of those appearing before
it.” Hudson v. AFGE, No. 17-1867, 2019 WL 3533602, at *1, 8 (D.D.C. Aug. 2, 2019); see also
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Hudson v. AFGE, No. 17-1867, 2021 WL 4551794, at *1–2 (D.D.C. Oct. 5, 2021) (reiterating
same).
In addition to this conduct, the Court emphasizes that counsel has not offered evidence to
substantiate an argument that her skill, experience, and reputation warrant anything close to the
hourly rate she seeks — an omission particularly glaring as she submitted a second supplemental
declaration after AFGE’s Opposition that added nothing on these points. This analysis further
suggests the appropriateness of the $450 sum mentioned above, or even a downward deviation
from it.
c. Prevailing Market Rates
Finally, the Court turns to the question of the prevailing market rate. Here, the 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.” Eley, 793 F.3d at 100 (quoting
Blum, 465 U.S. at 895 n.11). In performing such a task, courts in our district often rely on
matrices that lay out litigation billing rates in the District of Columbia. These matrices serve as
“one type of evidence” to which a fee applicant can point to satisfy its burden under this third
prong and are commonly a “useful starting point” for the Court’s ultimate determination. Id.(quoting Covington, 57 F.3d at 1109). But, as our Circuit recently instructed, “[B]ecause such
matrices are somewhat crude, the matrix’s proponent usually” should point to additional
evidence of the prevailing market rate, which can include “affidavits reciting the precise fees that
attorneys with similar qualifications have received from fee-paying clients in comparable cases
[or] evidence of recent fees awarded by the courts or through settlement to attorneys with
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comparable qualifications handling similar cases.” DL v. Dist. of Columbia, 924 F.3d 585, 589
(D.C. Cir. 2019) (internal quotation marks omitted).
Plaintiff contends that the Court should employ what is known as the “LSI Laffey
matrix,” a table the Circuit recently approved for complex litigation. Id. at 591. Even using that
matrix, however, Morten’s roughly seven years of recent practice (a generous figure in light of
her failure to show any litigation during that time period) would put her at the matrix’s rate of
$440 per hour when the case was filed and $508 per hour today. Regardless of what precise
number of years the Court uses, the only hard evidence that it has in this matter regarding
counsel’s rates is the $450 figure mentioned above. Given the lack of evidence to support
anything higher, this is the rate the Court will use. See also id. at 594 (citing “sparse affidavit” in
refusing to provide sought fees).
Hours Reasonably Expended
Now that it has the rate, the Court needs the other component of the lodestar figure — the
number of hours. Plaintiff bears the burden here, too. See Covington, 57 F.3d at 1107. As the
first step in satisfying it, a party requesting fees must produce “supporting documentation . . . of
sufficient detail and probative value to enable the court to determine with a high degree of
certainty that [the number of] hours were actually and reasonably expended.” Role Models Am.,
Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004) (internal quotation marks and citation
omitted); see also Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327
(D.C. Cir. 1982) (requiring “contemporaneous, complete and standardized time records which
accurately reflect the work done by each attorney”). In so doing, it must exercise its “billing
judgment” and exclude from its request hours that “are excessive, redundant, or otherwise
unnecessary.” Hensley, 461 U.S. at 434. The Supreme Court has instructed courts to take up
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this mantle when a party fails to do so and “exclude from [the] fee calculation hours that were
not ‘reasonably expended.’” Id. (quoting S. Rep. No. 94-1011, at 6 (1976)). District courts have
“wide discretion to reduce individual fee entries.” Nat’l Venture Capital Ass’n v. Nielson, 318
F. Supp. 3d 145, 152 (D.D.C. 2018) (citation omitted). The court’s task in this analysis is not to
become a “green-eyeshade accountant[],” sequentially weighing the propriety of each entry listed
in the movant’s request. Fox v. Vice, 563 U.S. 826, 838 (2011). The goal here is “rough
justice,” rather than engaging in hand-to-hand combat that is itself a “‘second major litigation.’”
Id. (quoting Hensley, 461 U.S. at 437).
The Court’s analysis proceeds as follows. In this Section, it subtracts from Morten’s
proposed hourly total — 1,458 hours — three specific types of hours for which she may not bill
or must bill with substantial reductions. In the next Section, the Court levies two across-the-
board cuts: one for Plaintiff’s lack of success, the other as a sanction for her timesheet and
litigation misconduct. Although it makes no mathematical difference, the Court follows
precedent in cutting hours as the first reduction and then trimming the resultant lodestar amount
as a penalty. The Court finally adds in Plaintiff’s request for fees incurred in filing this Motion
— fees on fees — awarded in the same percentage as she received here on her merits fees.
a. Hours Improperly Added From Prior to July 14, 2021
First, in line with its instruction to Plaintiff’s counsel, the Court will strike all hours that
Plaintiff has newly added from prior to July 14, 2021. See Tr. of Jan. 4, 2023, Hearing, 10:18–
25 (Court instructing counsel that it was “not going to let you seek more fees prior to July 14th,
2021”) The purpose of that instruction was to prevent counsel from treating her fee motions as
negotiating tools, adding additional sums if Defendant did not accede to her requests. See
Baylor, 857 F.3d at 959 (Henderson, J., concurring) (sanctionable for attorney to treat initial fee
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request “as an opening bid” in a negotiation). Plaintiff’s latest fee request, however, does exactly
that: in flagrant disregard of this Court’s directive, it adds fees prior to July 14, 2021. AFGE
provides numerous examples of such additions across pages 31–33 of its brief, including
instances where counsel added back time she had previously written off and added many new
entries where none had existed before. See, e.g., AFGE Opp. at 31–32 (citing as examples lines
21–23, 46–47, 53–54, 146, 238–39, 339–40, 342, 347, 726, 780, 787, 789, 791, 796, 801, and
807).
In his Reply, Hudson essentially concedes that he has ignored the Court’s instruction. He
recognizes that the Court “told Plaintiff not to include any additional hours” from before July 14,
but argues that counsel was “entitled to bill” for those hours and so did. See Pl. Reply at 4–5.
That is not how this works. The Court, justifiably concerned that Plaintiff was threatening to
come up with additional fees if AFGE opposed his Motion, ordered that counsel could not add
new fees from before July 14. The Court will now do what it said it would: cut those 209 added
hours. See AFGE Opp. at 31 (identifying 209.3 new hours added from that period, a number
Plaintiff does not dispute). It will also consider this behavior in determining a general reduction.
b. Hours Spent on Separate Matters
Next up are hours that counsel billed here but in fact spent working on other matters. She
represents Hudson in other suits against AFGE, including one before this Court, Case No. 17-
1867, and the Court has rejected her efforts to consolidate those cases. See Hudson, 308 F.
Supp. 3d at 395; see also Hudson, 2019 WL 3533602, at *7–8. Yet numerous entries in this case
are labeled with number 17-1867. Some such entries plainly concern only that other case. See,
e.g., Line 11 (conferring with opposing counsel about “add[ing] racial discrimination counts to
17-1867”). In others, counsel suggests that work performed on that case is billable here because
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it concerned the same underlying conduct; such work was still performed on another case and so
is not also billable here. See, e.g., Line 463 (“Proposed Supplemental Mot for Ext of Discover in
17-1867 re: Cox discrim in 2094”); 502 (“Court Order Granting Plaintiff's Motion for Extension
of Discovery in Case 17-1867 with implications for 2094”). The Court will strike all time that
Morten performed on that case, totaling 15.7 hours.
Counsel also billed entries regarding preparation of discovery in November 2019. She
marks those entries in her spreadsheet as concerning this case, but discovery in this case closed
in March 2019 — in Case No. 17-1867, however, Plaintiff served interrogatory and document
responses on November 12 and 14, 2019. Those entries clearly pertain to that other case and will
be struck as well, totaling 17.15 hours.
Finally, a series of counsel’s entries concern neither case at all. As AFGE documents,
Morten evidently billed for 2.4 hours expended on “negotiations with AFGE to permit EH to
attend upcoming NEC meeting” and reading AFGE’s notification that “EH will be permitted to
attend upcoming NEC meeting.” Lines 471–73. That work was not expended on this litigation.
The Court will strike it and related matters, totaling 4.6 hours.
Plaintiff concedes that counsel seeks fees for work on other matters, rejoining only with
the assertions that she should be able to bill for depositions “in related case 17-1867” and for
matters “discussed following a status conference in this case.” Reply at 21–22. That curious
response, which would seem to allow counsel to doubly recover for any work in any case that
shared a factual basis with this one, does not render those hours compensable here.
All told, the Court will strike a total of 37.5 hours as not appropriately billed to this case.
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c. Hours Spent on Global Mediation
Finally, AFGE challenges counsel’s roughly 50 hours spent on global settlement efforts
with respect to all of Hudson’s litigation. Placing no weight on AFGE’s intimation that counsel
wasted time during such settlement, see AFGE Opp. at 24, the Court agrees that attributing 50
hours to this case alone is far too many given the multiple matters involved in the global
settlement efforts and the mediation’s lack of success. Other courts in this district have held that
hours spent on unsuccessful mediation are categorically non-compensable. See Cobell v.
Norton, 407 F. Supp. 2d 140, 156 (D.D.C. 2005). Settlement, however, is a laudable goal and
striking such hours would “have perverse effects on the incentives of parties to engage in good-
faith settlement negotiations.” Lewis, 2018 WL 6308722, at *17. The Court instead believes the
more prudent course here is to cut half the hours, which balances the number of cases involved
against the Court’s interest in promoting settlement. It will accordingly award 25 hours in this
bucket and cut 25.
* * *
Let’s review the bidding. The Court has begun with counsel’s sum total of proposed
hours, set aside fees on fees (which will be treated later), and then subtracted hours based on the
individual objections AFGE raised. Such subtraction yields a total of 1059.5 hours.
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Hours
Total proposed 1,458.0
hours
Set aside: Fees on - 126.7
Fees
Subtract: Hours - 209.3
Prior to July 14,
2021
Subtract: Hours - 37.5
Spent on Separate
Matters
Subtract: Hours - 25.0
Spent on Global
Mediation
Remaining Total: 1059.5
The Court’s remaining tasks are to levy any global percentage-based cuts to those hours
and then to add in proportionally scaled-down fees on fees.
General Reductions
The Court begins with two across-the-board reductions: first to the total number of hours
for Hudson’s limited success, and second to the resulting lodestar amount as a sanction for
counsel’s deficient recordkeeping and inappropriate litigation conduct. For narrative flow and as
mentioned above, the Court analyzes both multipliers in this section.
a. Reduction for Limited Success
It is well established that a party may be entitled to a reduced award if its victory is
incomplete. “A plaintiff’s overall success on the merits also must be considered in determining
the reasonableness of a fee award.” Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d
363, 369 (D.C. Cir. 2006); see also Hensley, 461 U.S. at 436 (stating that “most critical factor” in
determination of reasonable fee is “the degree of success obtained”). Here, too, a court is
afforded discretion to “identify specific hours that should be eliminated” or, alternatively, to
“simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 436–37.
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Hensley v. Eckerhart is the foundational case in this area. There, the Supreme Court
instructed that “where the plaintiff achieved only limited success, the district court should award
only that amount of fees that is reasonable in relation to the results obtained.” 461 U.S. at 440.
The D.C. Circuit has interpreted Hensley to establish a two-step inquiry: “First, did the plaintiff
fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did
the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory
basis for making a fee award?” George Hyman Const. Co. v. Brooks, 963 F.2d 1532, 1535 (D.C.
Cir. 1992). “In assessing the fees for related claims,” however, “‘a court is to skip the first
Hensley inquiry and move to its second.’” Goos v. Nat’l Ass’n of Realtors, 997 F.2d 1565, 1569
(D.C. Cir. 1993) (quoting Brooks, 963 F.2d at 1537). That second inquiry requires “the
factfinder [to] then consider whether the success obtained on the remaining claims is
proportional to the efforts expended by counsel.” Brooks, 963 F.2d at 1535.
As an initial matter, the parties dispute whether Hudson’s claims were related and thus
whether the Court may skip step one. At that first step, AFGE contends that Hudson’s claims are
unrelated and that, because he did not prevail at trial on all of them, counsel’s hours should be
cut on that basis. See Verdict Form at 1–2. Plaintiff counters that the claims share “a common
core of facts based on related legal theories.” Pl. Mot. at 14. On this score, the Court sides with
Hudson. Even if the factual bases for the allegations of discrimination differ in some ways, they
are not “‘distinctly different’ in all respects, both legal and factual.” Williams v. First Gov’t
Mortg. & Invs. Corp., 225 F.3d 738, 746 (D.C. Cir. 2000) (quoting Morgan v. District of
Columbia, 824 F.2d 1049, 1066 (D.C. Cir. 1987)). Each claim involved Cox’s treatment of
Hudson during a common timeframe. For this reason — and aided by the fact that most
unsuccessful claims were dismissed early on in this saga — it would be nearly impossible for the
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Court to “divide the hours expended on a claim-by-claim basis.” Craig v. District of Columbia,
197 F. Supp. 3d 268, 283 (D.D.C. 2016) (citation omitted). AFGE contradicts itself on this point
when it contends that all of Hudson’s original claims should be treated as related under the
second Hensley prong. See AFGE Opp. at 18–19 (emphasizing under second prong that
“Plaintiff’s myriad of claims clearly qualify as related to the extent that they all rest on the
central factual allegation that Plaintiff’s race was the decisive factor in the mistreatment he
allegedly suffered”).
The Court accordingly focuses its attention on the second Hensley inquiry, which
considers whether Plaintiff’s level of success warrants a full fee award. See Goos, 997 F.2d at
1569. Here, AFGE’s arguments land with more force. This Court, like others in this district,
will consider Hudson’s success in the full context of this entire litigation. See, e.g., Radtke v.
Caschetta, 254 F. Supp. 3d 163, 171 (D.D.C. 2017); Craig, 197 F. Supp. 3d at 284 & n.7. And
Plaintiff’s success compared to his original litigating position is quite modest. His Complaint
made a series of sweeping allegations of race discrimination and retaliation, and on that basis
sought millions of dollars in damages. See Compl., ¶¶ 44–51; Civil Cover Sheet at 2. The Court
dismissed three of the four claims, including two significant ones: that Hudson was removed on
the basis of race and that he was subject to a hostile work environment. Hudson, 308 F. Supp. 3d
at 396. Notwithstanding that dismissal, Plaintiff repeatedly throughout the course of this
litigation tried to revive those claims, and the Court repeatedly rejected those efforts. See, e.g.,
Hudson v. AFGE, No. 17-1867, 2019 WL 3533602, at *1, 8 (D.D.C. Aug. 2, 2019) (chastising
Plaintiff for trying to revive these claims by “filing a brief that relies on factual
misrepresentations” and “trying to pull the wool over the Court’s eyes”); see also Hudson v.
AFGE, No. 17-1867, 2021 WL 4551794, at *1–2 (D.D.C. Oct. 5, 2021) (reiterating same). The
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same proved true in discovery and even up through trial, as Plaintiff repeatedly tried to broaden
the scope of this litigation without success. The upshot is that his success at trial was far more
limited than what he initially sought (and what counsel billed hours for) over the sweep of the
litigation. The Court thus finds a 20% discount to counsel’s hours properly accounts for this
limited success, which the Court believes is a decidedly modest cut.
Plaintiff’s counterarguments are unavailing. He offers generalized statements about the
verdict, see Reply at 8 (“Mr. Hudson’s jury verdict against AFGE is a shining example of justice
delayed but not denied.”), contends that AFGE adopted new policies in response to the litigation,
id. at 9–10, and emphasizes in particular that Defendant amended its national constitution
following the jury verdict. Id. at 10. None of that explains how Plaintiff’s limited $100,000
litigation victory justifies the full fees of a sprawling, multi-million-dollar original Complaint —
which Plaintiff litigated at every turn, right up to trial, as though he were pursuing that full
original set of claims.
All told, the Court in its discretion finds reasonable a 20% haircut based on lack of
success, to account for the gap between Plaintiff’s sought relief (and counsel’s efforts towards
that relief) and his final limited victory.
b. Reduction as Sanction
One more cut is in order, this one as a sanction for Plaintiff’s deficient recordkeeping and
litigation misconduct. Begin with recordkeeping, a point on which the D.C. Circuit has been
very clear: “Casual after-the-fact estimates of time expended on a case are insufficient to support
an award of attorneys’ fees.” Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1327. This Circuit
“require[s] that fee applications include contemporaneous time records of hours worked and rates
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claimed, plus a detailed description of the subject matter of the work with supporting documents,
if any.” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989) (emphasis added).
That court nonetheless has also appreciated that the “[t]otal denial of requested fees as a
purely prophylactic measure . . . is a stringent sanction, to be reserved for only the most severe of
situations, and appropriately invoked only in very limited circumstances.” Jordan v. U.S. Dep’t
of Just., 691 F.2d 514, 518 (D.C. Cir. 1982). “Outright denial may be justified when the party
seeking fees declines to proffer any substantiation in the form of affidavits, timesheets or the
like, or when the application is grossly and intolerably exaggerated, or manifestly filed in bad
faith.” Id. Where counsel “merely failed to keep contemporaneous records,” by contrast, courts
have concluded “it would be unjust to preclude them from recovering any fees at all.” Norden v.
Clough, 674 F. Supp. 2d 126, 130 (D.D.C. 2009); see also New York v. Microsoft Corp., 297 F.
Supp. 2d 15, 38–44 (D.D.C. 2003) (giving only 15% reduction where Plaintiff State of
Massachusetts performed meticulous reconstruction of time records).
Here, counsel’s statements to opposing counsel, as well as her submitted timesheet,
evince after-the-fact reconstruction. Begin with her comment to opposing counsel in February
2023 that she “tied [her] fees to the greatest extent possible to emails exchanged between
[counsel], to Plaintiff’s documents filed on the Court docket, to AFGE’s documents filed on the
Court docket, to consultations with my Client, and to Judge Boasberg’s Orders regarding status
hearings and rulings on motions.” Virk Decl., Exh. 7. Such efforts to “tie[]” fees to concrete
documents would be necessary only if those fees were reconstructed after the fact. Indeed, the
spreadsheet repeatedly states that various entries are “approximate” and “will be updated” in the
future — a future that should have materialized before Plaintiff submitted his fee spreadsheet, as
the Court warned in its January 2023 status hearing, and that further reveals after-the-fact
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reconstruction. AFGE furthermore identifies a blizzard of inconsistencies between counsel’s
latest spreadsheet and her previously submitted one that makes sense only if the times were just
guesswork. See AFGE Mot. at 26–27. The metadata on Plaintiff’s fee spreadsheet also reveals
that it was created in June 2021, just before Plaintiff filed his original fee motion; despite
repeated requests from AFGE, counsel has failed to produce any underlying records on which
that spreadsheet was based. Id. at 28; Virk Decl., ¶ 11. Finally, the fact that Hudson billed over
100 hours to preparation of the fee motion suggests that such preparation required extensive
reconstruction. Those facts all collectively make clear that counsel failed to keep
contemporaneous time records.
Plaintiff offers a wholly inadequate response. Counsel generally maintains that
“[t]hroughout her legal career, undersigned counsel has used Excel spreadsheets to
contemporaneously record her billed legal hours as she did here . . . .” Reply at 3. But AFGE’s
charge is not that there is anything wrong with Excel; it is that many features of counsel’s Excel
spreadsheet and her communication more generally suggest that she did not in fact
“contemporaneously record her billed legal hours.” Seeming to concede that fact, counsel
switches gears in her conclusion: there, she says that her billing “confirms” her “clear statement
in the revised bill that she was unable to access the original bill of costs while overseas.” Reply
at 24 n.3. She accordingly asks the Court for “an extension of time to provide additional
supporting documentation.” Id. at 24. The Court is stymied. Recall that it told counsel before
she filed her second revised bill of costs, in no uncertain terms, that this would be her final
chance to support her fee request. See Tr. of Jan. 4, 2023, Hearing at 19:16–19 (Court: “But it’s
not going to be a question of my saying, well, you didn’t really support this, I’ll give you another
chance to file something else. If you don’t support it fully, I’ll cut fees.”). As counsel has still
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not done so, the Court must conclude that she has not based her fees on contemporaneous time
records.
That failure to adequately track time would alone warrant a serious reduction as sanction.
A second feature of the litigation, however, reinforces the need for a reduction here: the
vexatious manner in which Plaintiff has conducted this litigation. The Court has already
referenced several respects in which counsel’s conduct has fallen short of professional standards.
Most seriously here, she “impermissibly treated” her initial fee request “as an opening bid” and
then defied this Court’s Order instructing her not to go back and add additional fees from that
period. See Baylor, 857 F.3d at 959 (Henderson, J., concurring) (emphasizing such conduct
merits sanction). She also repeatedly skirted the Court’s rulings, including by misleading the
Court regarding her attempts to consolidate this case with No. 18-1867 and by attempting to
smuggle in evidence regarding those claims through in limine motions. See Hudson, 2019 WL
3533602, at *7–8; ECF No. 82 (Order on Motions in limine) at 1 (noting that, notwithstanding
Court’s prior Order, Hudson “wishes to broaden the trial far beyond these race-discrimination
claims”). No mere aggressive litigating, this behavior transgressed the Court’s prior Orders and
further recommends a sanction.
Taken together, counsel’s post hoc fee reconstruction and her other litigation misconduct
warrant a 25% fee reduction. The Court is mindful that it could go much lower: Judge
Henderson’s concurrence admonishes district courts that their discretion to vary upward and
downward includes dropping fees all the way down to zero or to the award that the plaintiff
received. See Baylor, 857 F.3d at 957–60 (Henderson, J., concurring) (suggesting these
approaches and emphasizing that “[s]teep overbilling ought to come at a steep price”); see also
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AFGE Opp. at 39–40. The Court nonetheless believes that calculating a lodestar and then
imposing a 25% sanction most fairly tethers the outcome to the facts of this case.
* * *
The billing now stands as follows. The Court left off in Part II.A.2 with a figure of
1059.5 total billable hours. To account for lack of success, the Court reduces that total by 20%;
that yields a new base number of 847.6 hours. Multiplying that number by the $450 hourly rate
results in a lodestar of $381,420, which the Court cuts by 25% as a sanction. The Court’s total
award thus now stands at $286,065. The only remaining task is to add in fees on fees, a task it
takes up now.
Fees on Fees
Rounding out the billing is Plaintiff’s request to recover for time expended on seeking
attorney fees. Courts in this district have concluded that awards of such “fees on fees” should be
reduced to exclude the amount of time spent unsuccessfully defending fee requests denied by the
court. See, e.g., Nat’l Veterans Legal Servs. Program v. U.S. Dep’t of Veterans Affairs, No. 96-
1740, 1999 WL 33740260, at *5–6 (D.D.C. 1999); see also Commissioner, INS v. Jean, 496 U.S.
154, 163 n.10 (1990) (“[F]ees for fee litigation should be excluded to the extent that the applicant
ultimately fails to prevail in such litigation.”). In other words, courts reduce fees on fees “by the
same proportion” as they have reduced the total award. Lewis, 2018 WL 6308722, at *17.
Plaintiff seeks to bill 126.7 hours in trial and appellate fees on fees at a $997 hourly rate,
for a total sought fees-on-fees award of $126,320. The Court must trim that total in proportion to
counsel’s overall success in this Motion. Morten originally sought to bill 1331.3 hours of non-
fees-on-fees time, which at her proposed hourly rate would have yielded a merits award of
$1,327,306. The Court, by contrast, has arrived at a merits award of $286,065. That represents a
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78% reduction. The Court will accordingly reduce counsel’s sought $126,320 fees-on-fees
award by 78% for lack of success, resulting in $27,790 in fees on fees.
* * *
The Court’s merits award of $286,065, plus its fees-on-fees award of $27,790, combine
for a total award of $313,855.
B. Costs
Last up is the issue of costs. Plaintiff seeks roughly $49,582.10 in trial costs and
$10,526.30 in appellate costs. The Court will straight-out deny this request. First, the lion’s
share of these costs are for support services variously labeled as “Admin Asst,” “Investigators,”
and “Paralegal Assistants.” See Lines 1029–37. Such clerical support is not reimbursable as
costs under the caselaw. See Cobell, 407 F. Supp. 2d at 156–57 (citing Missouri v. Jenkins, 491
U.S. 274, 288 n.10 (1989)). Plaintiff additionally offers no support at all for those time entries,
instead providing only the roughest conceivable time estimations. See, e.g., Lines 1030, 1031,
1033 (billing “Admin Asst” time as “1 year @ $20 per hour for 20 hours a week”). This
rounding offers nowhere near the level of detail required to secure reimbursement. See Role
Models Am., Inc., 353 F.3d at 971.
Plaintiff’s assorted other cost entries meet the same fate. Some are barred because, as the
Court has previously informed him, they must be submitted to the Clerk under Local Rule 54.1,
and Plaintiff has missed the necessary timeframe for so submitting. See AFGE Mot. at 42
(quoting ECF No. 125-2 (Transcript of June 24, 2021, Hearing) at 11:19–20). In any event,
Hudson has offered no support at all for these fee requests. Courts routinely deny such requests
where counsel has failed to “provide any explanation, receipts, or documentation to justify the
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reasonableness of the requested costs.” See, e.g., Craig, 197 F. Supp. 3d at 284–85. Because
that is the case here, the Court will deny them in full.
Perhaps recognizing these deficiencies, Hudson requests leave to “assemble, scan, and
file certain trial cost receipts.” Reply at 25. But enough is enough. After years of litigation,
months of delay, and two unsupported fee requests, the Court does not see any reason to grant
additional time now. The Court, moreover, already explained this all to counsel before she filed
her present Motion — she knew it was her last shot when she filed it. See (yet again) Tr. of Jan.
4, 2023, Hearing at 19:16–19 (Court: “If you don’t support it fully, I’ll cut fees.”). The Court
believes this matter has run its course and will thus deny the request for costs in full.
* * *
Fee disputes are “one of the least socially productive types of litigation imaginable.”
Hensley, 461 U.S. at 442 (Brennan, J., concurring in part and dissenting in part). This dispute
has proven that many times over. With the dust settled, the Court concludes that a fee award of
$313,855 is the proper result here. That award will compensate counsel for her time without
yielding the type of unjust windfall that Section 1988 seeks to guard against.
III. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part Plaintiff’s Second
Motion for Attorney Fees and Costs. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: June 16, 2023
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