Doe No. 1 v. United States ( 2020 )

No. 19-255C
(Filed: June 9, 2020)
(Re-filed: June 17, 2020) 1
NOT FOR PUBLICATION
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DOE NO. 1, et al.,
29 U.S.C. § 216(b) (2018);
Plaintiffs, motion for attorney’s fee and
costs; reasonable hours;
v. contingency fee.
THE UNITED STATES,
Defendant.
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Linda Lipsett, Washington, DC, for plaintiffs. Daniel M. Rosenthal,
Alice C. Hwang, and Michael P. Ellement, of counsel.
Ashley Akers, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, DC, with whom were Joseph
H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and
Tara K. Hogan, Assistant Director, for defendant.
ORDER ON MOTION FOR ATTORNEY’S FEES AND COSTS
Plaintiffs, ten Bureau of Alcohol, Tobacco, Firearms and Explosives
Firearms Enforcement Officers, filed a complaint alleging violation of the
Fair Labor Standards Act (“FLSA”) on February 14, 2019. 2 Following initial
discovery and negotiations, plaintiffs accepted an offer of judgment from
1
Due to the protective order in this matter, this order was filed under seal to
afford the parties an opportunity to propose redactions. The parties filed a
notice on June 11, 2020, stating that they propose no redactions. This order
is therefore re-filed without redactions.
2
Plaintiffs amended the complaint four times, adding more plaintiffs each
time for a total of ten officers.
defendant on January 10, 2020, and the Clerk entered judgment in the amount
of $147,575.92 on January 28, 2020. Pending is plaintiffs’ motion for
attorney’s fees and its bill of costs totaling $41,956.77 through February 25,
2020, under Rule 54(d) of the Rules of the United States Court of Federal
Claims (“RCFC”). 3
Defendant argues that plaintiffs seek compensation for an
unreasonable number of hours and costs that will create a windfall to
plaintiffs’ counsel if awarded. Defendant asks that plaintiffs receive, at most,
$18,000 in attorney’s fees and approximately $450 in costs. In their reply in
support of their fee petition, plaintiffs reduced their motion for attorney’s
fees and costs from $48,079.72 to $41,956.77.
The FLSA mandates that a court “shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be
paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b) (2018).
Such an attorney’s fee and costs are mandatory when plaintiffs prevail in a
FLSA case. Slugocki v. United States, 816 F.2d 1572, 1579 (Fed. Cir. 1987).
Plaintiffs accepted an offer of judgment in the amount of $147,575.92, and
defendant does not dispute that plaintiffs are prevailing party.
To determine the award of attorney’s fees, we calculate “the number
of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). To determine
a reasonable hourly rate, the court looks to “market rates for the services
rendered” in the jurisdiction where the case was litigated. Missouri v.
Jenkins, 491 U.S. 274, 283 (1989). A reasonable rate is “in line with those
prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886,
895 n.11 (1984). Plaintiffs’ counsel, who are practitioners in the District of
Columbia, submit that the USAO-Laffey Matrix, which is published by the
United States Attorney’s Office for the District of Columbia and sets forth
market rates for attorneys based on experience, sets the rates for attorneys in
their community. Defendant does not contest the use of the USAO-Laffey
Matrix to set the hourly rate.
3
Plaintiffs filed a bill of costs separately but also attached the bill of costs
and supporting documentation to their motion for attorney’s fees, requesting
that the court enter judgment for the bill of costs amount to the extent that
the Clerk does not act. We grant both the motion for attorney’s fees and bill
of costs, as discussed in this order.
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amount of time on briefing a motion for an extension of time; unreasonably
billed ministerial activities like email review in quarter-hour increments; and
unreasonably allowed partner-level attorneys to bill too many hours.
Defendant also points out that plaintiffs’ “[c]ounsel bills 32.50 hours or
$12,886 for preparing a motion for fees in a case involving less than 100
hours spent on litigation.” Def.’s Resp. 7. Finally, despite acknowledging
that plaintiffs are entitled to statutory fees and that this court does not review
FLSA settlements between plaintiffs and the United States, defendant argues
that plaintiffs’ counsel should not receive statutory fees because plaintiffs
agreed to pay a contingency fee. Regarding costs, defendant argues that costs
for a transcript, docket entries, and certain commercial research were
unreasonable.
In their reply brief, plaintiffs reduced their request by approximately
20 hours ($5,976.25 in fees). That reduction decreased the fees sought from
$47,381 to $41,404.75 through February 25, 2020. Plaintiffs removed fees
for hours spent after accepting the government’s offer of judgment that were
unrelated to their fee petition; hours dedicated to filing a motion for
clarification; hours spent on filing a motion for leave to file supplemental
evidence; and hours billed for opposing defendant’s motion for enlargement
of time. Plaintiffs also decreased the hours claimed for time spent on its fees
petition from 32.5 hours to 31 hours.
Beyond the deduction in hours, plaintiffs do not seek fees for the time
spent on their reply brief with respect to fees, concluding their fee petition at
February 25, 2020. Additionally, from their $698.72 costs request, plaintiffs
eliminated the $146.70 transcript cost. Regarding the rest of the hours billed
and costs claimed, plaintiffs maintain that their counsel used appropriate
billing judgment and standard billing practices.
When reviewing plaintiffs’ billing records and associated briefing, the
court is guided by the principle that legal counsel must use billing judgment
and properly document the hours spent, by whom, and on what tasks.
Hensley, 461 U.S. at 433-34; see also Jenkins, 491 U.S. at 288. We find that
plaintiffs’ counsel expended a reasonable number of hours and reasonably
assigned attorneys at varying experience levels to this case.
This case was resolved after negotiations and an offer of judgment,
without dispositive motion practice, but there were three disputed procedural
motions and protracted settlement discussions. Plaintiffs also point out that
counsel completed limited discovery prior to settlement. Through this
process, plaintiffs’ counsel secured a $147,575.92 recovery for their clients.
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Also, the parties engaged in substantive briefing on the fee request.
Ultimately, plaintiffs’ petition for attorney’s fees and costs represents less
than a third of the total recovery.
With this context in mind, we conclude that plaintiffs’ counsels’ hours
and staffing were reasonable. First, plaintiffs included approximately six
hours billed in quarter-hour increments for tasks such as reviewing
documents, sending emails between counsel, and phone conversations
between counsel. There is nothing inherently unreasonable about using a
quarter-hour increment for a small set of hours spent on basic tasks, and in
this case plaintiffs’ counsel did not egregiously accumulate quarter-hour
entries. Furthermore, in a case spanning approximately a year and including
lawyers and support staff coordinating in two firms, we find it reasonable
that plaintiffs’ counsel spent 31 hours preparing the fee petition.
Additionally, we discount the government’s questioning of plaintiffs’
lead counsel bringing in attorneys from another law firm for a total of four
attorneys and two paralegals. We understand that Ms. Lipsett is essentially a
solo practitioner. Given that we are not concerned about the reasonableness
of the hours claimed, the number of law firms that accumulated those hours
is immaterial. Plaintiffs are entitled to engage the number of attorneys needed
to resolve their suit. Relatedly, defendant quibbles with which lawyer, at
varying experience levels, was assigned to various tasks but does not
question the accuracy of the billing records supporting those hours. The court
finds that plaintiffs’ counsel reasonably divided tasks without expending an
unreasonable amount of time. The court will not second guess the hours
beyond that inquiry, because, as defendant concedes, the court does not play
a role in approving the FLSA settlement between plaintiffs and the
government nor does it have a role in reviewing the agreement between
plaintiffs and their counsel. Plaintiffs have appropriately reduced their costs
request and the amounts charged for filing, copying, and research are
reasonable.
For the foregoing reasons, the court grants plaintiffs’ motion for
attorney’s fees and its bill of costs in the amount of $41,404.75 in attorney’s
fees and $552.02 in costs, totaling $41,956.77. The Clerk is directed to enter
judgment accordingly.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge
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