Overbey et al v. Mayor and City Council Baltimore et al

Filing 74

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/19/2021. (sat, Chambers)

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ASHLEY AMARIS OVERBEY, et al.
:
v.

:

Civil Action No. DKC 17-1793

:
THE MAYOR AND CITY COUNCIL OF
BALTIMORE, et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this First
Amendment case is a motion for attorneys’ fees filed by Plaintiffs,
Ashley Amaris Overbey (“Ms. Overbey”) and the Baltimore Brew (“the
Brew”) (collectively “Plaintiffs”).

(ECF No. 67).

rules, no hearing deemed necessary.

The court now

Local Rule 105.6.

For the

following reasons, the Plaintiffs’ motion for attorneys’ fees will
be granted in part and denied in part.
I.

Background
This case’s lengthy history arises out of a dispute over the

“non-disparagement” clause contained in a settlement agreement
between Ms. Overbey and the Mayor and City Counsel of Baltimore
(the

“City”).

In

August

2014,

Ms.

Overbey

entered

into

a

settlement agreement with the City to resolve various allegations
of police misconduct following an encounter with the Baltimore
City Police Department (“BPD”).

(ECF Nos. 11-2 & 11-3).

Pursuant

to the settlement agreement, the City agreed to pay Ms. Overbey

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 2 of 30

$63,000 to resolve her claims.

The settlement agreement also

included a non-disparagement clause which prohibited Ms. Overbey
from publicly discussing either the underlying allegations or the
settlement process.

Under the agreement, a violation of the non-

disparagement clause rendered Ms. Overbey liable for damages equal
to half of the settlement amount.

(ECF No. 11-4, at 5).

On

October 8, 2014, Ms. Overbey received a letter from the City
accusing her of violating the settlement agreement by discussing
her case on the Baltimore Sun’s website.

The letter contained a

check payable for $31,500 and indicated that Ms. Overbey would not
receive the full $63,000 settlement amount due to her comments
concerning the case.
The Brew is a local newspaper that reports on lawsuits and
settlement of police brutality cases involving the City. Reporters
from the Brew contacted the City in an attempt to learn about Ms.
Overbey’s settlement agreement but were informed that all police
settlements entered into by the City prohibited the plaintiff from
discussing any aspect of the case on pain of the City “clawing
back” a portion of the settlement.

Further, the City prohibited

its police officers, and even its public relations office, from
discussing settlements, effectively leaving the Brew without any
feasible way for reporting on these cases.
During the summer of 2015, Ms. Overbey and the Brew both
independently contacted the Maryland American Civil Liberties
2

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 3 of 30

Union (“ACLU”) to discuss bringing a legal challenge against the
City for its use of the non-disparagement clause.
7).

(ECF No. 69, at

Given the complex nature of the case, the ACLU sought to

engage a private law firm to assist in the litigation.

Cognizant

of the fact that local firms might have conflicts and be less
willing to bring suit against the City, the ACLU opened its search
to firms in both the Maryland and Washington, D.C. markets.

After

several months, no Maryland firm volunteered to take on the case.
In the winter of 2016, the ACLU hired the Washington, D.C. office
of Crowell & Moring, LLP to serve as co-counsel on a pro bono fee
arrangement.

(ECF No. 69-1, at 7).

On June 30, 2017, Plaintiffs, represented by the ACLU and
Crowell & Moring, filed a five-count complaint against the City
and the BPD in this court.

(ECF No. 5).

Ms. Overbey alleged that:

(1) the City deprived her of her First Amendment right to free
speech; (2) the settlement agreement violated the public policy of
the state of Maryland; (3) unlawful liquidation of damages; and
(4) breach of contract.

The Brew alleged that the restrictive

terms of the settlement agreement violated its right to report
fully on facts of public concern as guaranteed by the First
Amendment and Maryland public policy.

Plaintiffs sought monetary

damages, declaratory relief, and injunctive relief.

The BPD moved

to dismiss all claims against it, (ECF No. 10), and the City also
moved to dismiss, or alternatively, for summary judgment.
3

(ECF

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 4 of 30

No. 11).

Judge Marvin J. Garbis, to whom this case was assigned

at the time, dismissed all claims against the BPD and granted
summary judgment in favor of the City on all counts, finding that
Ms. Overbey had voluntarily waived her First Amendment rights by
entering into the settlement agreement and that the Brew lacked
standing to sue.

Overbey v. Mayor & City Council of Baltimore,

No. CV MJG-17-1793, 2017 WL 5885657, at *1 (D.Md. Nov. 29, 2017),
rev’d and remanded sub nom. Overbey v. Mayor of Baltimore, 930
F.3d 215 (4th Cir. 2019).

Plaintiffs appealed the judgment to the

United States Court of Appeals for the Fourth Circuit.

(ECF No.

34).
On July 11, 2019, the Fourth Circuit reversed the judgment
and remanded the case finding that the non-disparagement clause in
the settlement agreement “amounts to a waiver of [Ms. Overbey’s]
First Amendment rights and that strong public interests rooted in
the First Amendment make it unenforceable and void.”
Mayor of Baltimore, 930 F.3d 215, 222 (4th Cir. 2019).

Overbey v.
Further,

the Fourth Circuit held that the Brew had standing to bring suit.
(Id. at 228-29) (“[T]he Brew has sufficiently alleged that the
[c]ity’s pervasive use of non-disparagement clauses in settlement
agreements with police brutality claimants has interfered with its
right to receive newsworthy information from willing speakers.”).
Although Plaintiffs’ notice of appeal also included the dismissal
of the claims against the BPD, they did not press that appeal, and
4

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the Fourth Circuit did not review the dismissal.

Accordingly,

those claims remained dismissed upon remand.
By November 2017, the City had changed the standard language
in

proposed

settlement

disparagement clause.

agreements

and

(ECF No. 56, at 2).

ceased

using

the

non-

In September 2019, the

Baltimore City Mayor issued an executive order confirming that the
City had ceased use of the non-disparagement clause used in Ms.
Overbey’s settlement.

(ECF No. 56-2).

In December 2019, the

Baltimore City Council enacted Bill 19-0409 prohibiting the use of
similar provisions in future settlement agreements entered into by
the City.
On remand, the case was reassigned to this member of the
bench, and, after the filing of a summary judgment motion by Ms.
Overbey, an opposition by the City, and a reply, the court entered
judgment in favor of Ms. Overbey in the amount of $31,500 plus
prejudgment interest at the rate of %6 per annum dating from
October 8, 2014.
the

contested

Because the City had voluntarily ceased used of

non-disparagement

clause

prior

to

the

circuit

court’s decision and because the Brew sought declaratory and
injunctive relief only, the court dismissed all claims brought by
the Brew as moot.

Overbey v. Mayor & City Council of Baltimore,

No. 17-CV-1793-DKC, 2020 WL 5628987 (D.Md. Sept. 21, 2020).
On October 5, 2020, Plaintiffs filed the currently pending
motion for award of attorneys’ fees pursuant to 42 U.S.C. § 1988
5

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and Local Rule 109.2. (ECF No. 67). The City responded on December
7, 2020, (ECF No. 72), and Plaintiffs replied on December 21, 2020.
(ECF No. 73).

Plaintiffs seek attorneys’ fees and costs in the

total amount of $722,483.03.
II.

Standard of Review
In 1976, Congress passed the Civil Rights Attorney’s Fees

Awards Act, 42 U.S.C. § 1988, which provides that a court, within
its

discretion,

may

award

reasonable

attorneys’

fees

prevailing party in any action enforcing 42 U.S.C. § 1983.

to

a

“The

purpose of [Section] 1988 is to ensure effective access to the
judicial

process”

for

persons

with

civil

rights

grievances.

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation marks
and citation omitted).
In resolving a motion for attorneys’ fees, “[t]he first
determination to be made by the district court is whether the
plaintiff is a prevailing party. The second determination is
whether an award of attorney’s fees should be granted to the
prevailing party and what amount would be reasonable under the
specific circumstances of the case.”

Feldman v. Pro Football,

Inc., 806 F.Supp.2d 845, 847 (D.Md. 2011).
“The proper calculation of an attorney’s fee award involves
a three-step process.

First, the court must ‘determine the

lodestar figure by multiplying the number of reasonable hours
expended times a reasonable rate.’”
6

McAfee v. Boczar, 738 F.3d

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 7 of 30

81, 88 (4th Cir. 2013) (quoting Robinson v. Equifax Info. Servs.,
LLC,

560

F.3d

235,

243

(4th

Cir.

2009)).

In

assessing

reasonableness, the United States Court of Appeals for the Fourth
Circuit has instructed district courts to consider what are known
as the Johnson factors, which are: (1) the time and labor expended;
(2) the novelty and difficulty of the questions raised; (3) the
skill required to properly perform the legal services rendered;
(4) the attorney’s opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the attorney’s
expectations

at

the

outset

of

the

litigation;

(7)

the

time

limitations imposed by the client or circumstances; (8) the amount
in controversy and the results obtained; (9) the experience,
reputation and ability of the attorney; (10) the undesirability of
the case within the legal community in which the suit arose; (11)
the nature and length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards in similar
cases.

Id. at 88 n.5 (citing Barber v. Kimbrell’s Inc., 577 F.2d

216, 226 n.28 (4th Cir. 1978)).

“Next, the court must ‘subtract

fees for hours spent on unsuccessful claims unrelated to successful
ones.’

Finally, the court should award ‘some percentage of the

remaining amount, depending on the degree of success enjoyed by
the plaintiff.’”

Id. (quoting Robinson, 560 F.3d at 244).

The

Fourth Circuit has noted that a district court’s determination of
attorneys’ fees should stand unless the district court abused its
7

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discretion by reaching a decision that is “clearly wrong” or
committing an “error of law.” Id. at 88 (quoting Brodziak v.
Runyon, 145 F.3d 194, 196 (4th Cir. 1998)).
III. Analysis
Plaintiffs assert that they were prevailing parties in an
action involving 42 U.S.C. § 1983 and accordingly, are entitled to
reasonable attorneys’ fees and costs.
seek

to

recover

$722,483.03

in

fees

Plaintiffs, collectively,
and

costs.

The

City

acknowledges that Ms. Overbey is a prevailing party, (see ECF No.
72, at 12), but argues that the Brew is not a prevailing party and
as such, is not entitled to recover any fees.
A.

The Brew is not entitled to Attorneys’ Fees or Costs

The Brew alleged two counts against the City: a deprivation
of its First Amendment rights (Count II), and a violation of the
public policy of the state of Maryland (Count III).

Both counts

were initially dismissed by the district court on the ground that
the Brew lacked standing to sue.

The only claim of the Brew’s

that the Fourth Circuit allowed to proceed was its First Amendment
challenge.

This claim, however, was ultimately dismissed again on

remand on the ground that the Brew’s First Amendment claim was
moot because it sought only declaratory and injunctive relief which
the court could not provide because the City had voluntarily
stopped using the non-disparagement clause prior to the circuit

8

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court decision and had enacted a bill prohibiting the use of
similar provisions in future settlement agreements.

(ECF No. 64).

The City correctly argues that because the “Brew was dismissed
from the action without any judicial rulings in their favor . . .
[it] is not a prevailing party” and “[a]ny request for fees on
behalf of this Plaintiff must be dismissed out of hand.”

(ECF No.

72, at 12) (citing S-1 and S-2 v. Bd. of Ed. of N.C., 21 F.3d 49,
51 (4th Cir. 1994)).

Plaintiffs contend that the Fourth Circuit

left open the possibility that attorneys’ fees may be awarded in
instances of “tactical mooting” where a defendant voluntarily acts
in a way that moots the plaintiff’s claim in order to avoid
liability for attorneys’ fees.
The

Fourth

Circuit’s

recent

opinion

in

Reyazuddin

v.

Montgomery Cty., Maryland, 988 F.3d. 794 (4th Cir. 2021), is
instructive.

There, a blind plaintiff brought suit against her

employer alleging it refused to accommodate her disability and
seeking damages and injunctive relief in the form of a department
transfer.
violated

After jury verdict finding that plaintiff’s employer
the

Rehabilitation

Act,

the

court

awarded

$0

in

compensatory damages and denied her request for injunctive relief
because after trial her employer had voluntarily transferred her
to her desired department.

Ms. Reyazuddin then filed a motion for

attorneys’ fees as a prevailing party under § 1988 which the
district court denied.

Ms. Reyazuddin appealed.
9

In its analysis,

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 10 of 30

the circuit court compared four cases that each contemplated
whether a party who has not obtained a typical monetary judgment,
may be considered a prevailing party for purposes of obtaining
attorneys’ fees under § 1988.
In Farrar, the Supreme Court considered
“whether a civil rights plaintiff who receives
a nominal damages award is a ‘prevailing
party’ eligible to receive attorney’s fees”
and answered in the affirmative. [Farrar v.
Hobby, 506 U.S. 103, 105 (1992)]. The Hewitt
Court
considered
“whether
a
party
who
litigates to judgment and loses on all of his
claims can nonetheless be a ‘prevailing party’
for purposes of an award of attorney’s fees”
and answered in the negative.
[Hewitt v.
Helms, 482 U.S. 755, 757 (1987)].
And the
Buckhannon Court considered “whether th[e]
term [‘prevailing party’] includes a party
that has failed to secure a judgment on the
merits or a court-ordered consent decree, but
has nonetheless achieved the desired result
because the lawsuit brought about a voluntary
change
in
the
defendant’s
conduct.”
[Buckhannon Bd. & Care Home v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 600
(2001)].
The Court again answered in the
negative. Id.
. . . .
[In Parham v. Southwestern Bell Telephone Co.,
433 F.2d 421 (8th Cir. 1970)] the plaintiff
didn’t prove his claim at trial; rather, in
reversing the district court’s dismissal in
part, the Eighth Circuit “h[e]ld as a matter
of law” that the defendant company had
discriminated against black Americans in
violation of Title VII. Parham, 433 F.2d at
427. But the court also affirmed the district
court’s denial of injunctive relief due to
changes the company made to its hiring
practices after the plaintiff sued.
Id. at
429. Nonetheless, our sister circuit reasoned
that the plaintiff’s “lawsuit acted as a
catalyst which prompted” the company to change
10

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its behavior and determined that the plaintiff
had “prevailed in his contentions of racial
discrimination against blacks generally” such
that he was entitled to reasonable attorney’s
fees. Id. at 429–30.
Reyazuddin, 988 F.3d at 797–98.

The circuit court went on to

conclude that Ms. Reyazuddin was a prevailing party but

not

“because she catalyzed the County to change its behavior by filing
a lawsuit; rather, she’s a prevailing party because she proved her
claim to a jury before the County capitulated by transferring
her[.]”

Id.

The current case is more analogous to Buckhannon

than Farrar, Parham, or Reyazuddin.

In other words, with regard

to the Baltimore Brew, it is at best a classic catalyst theory
case.

The Brew received no monetary judgment, no jury verdict in

its favor, and no injunctive relief.

As will be discussed more

below, the opinion of the Fourth Circuit focused on Ms. Overbey’s
First Amendment rights in the substantive portion of the decision.
For the Brew, it found that the allegations in the complaint
(without regard to any evidence outside the pleadings) sufficient
to allege an ongoing or future injury necessary for standing.
There was no ruling on the merits of its First Amendment claim.
The Brew may have been “successful” in that “it obtained from the
City everything it sought through litigation,” (ECF No. 73, at
17), because the City ceased use of the contested non-disparagement
clause, however, this does not change the fact that there was no
change at all in the legal relationship between these parties.
11

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(See Buckhannon, 532 U.S. at 598–99) (“A ‘prevailing party’ is one
who has been awarded some relief by a court.

See, e.g., Hanrahan

v. Hampton, 446 U.S. 754, 758 [1980]. Both judgments on the merits
and court-ordered consent decrees create a material alteration of
the parties’ legal relationship and thus permit an award . . . [a]
defendant’s

voluntary

change

in

conduct,

although

perhaps

accomplishing what the plaintiff sought to achieve by the lawsuit,
lacks the necessary judicial imprimatur on the change.”).   Here,
while the Fourth Circuit did rule on the merits, it did so in the
context of Ms. Overbey’s claim, and the voluntary cessation of the
practice had preceded that decision.

Thus, the Brew is not a

“prevailing party” and is not entitled to compensation for any
work done solely on its behalf.

The Brew contends that it would

be “impractical” to back out the hours that counsel spent solely
on its claims. The court disagrees and has successfully identified
81.2 hours in Plaintiffs’ submissions which bill for work done for
“media plaintiff” or “the Brew” or work relating to “standing” and
“News Agencies’ First Amendment Rights.”
5).

Accordingly,

calculate

a

it

lodestar

is

entirely

figure

(See ECF Nos. 69-2 & 69-

possible

which

does

for
not

the

court

include

to
any

compensations for hours devoted solely to the Brew’s claims and
the court will do exactly that.

12

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B.

Ms. Overbey is Entitled to Attorneys’ Fees

Ms. Overbey, unlike the Brew, is unquestionably a “prevailing
party” as this court entered an order on September 21, 2020,
granting summary judgment in her favor and awarding her $31,500 in
damages plus pre-judgment interest.

(ECF No. 65).

As the City

concedes, such order constitutes an enforceable judgment that
materially altered the legal relationship between Ms. Overbey and
the City.

(See ECF No. 72, at 12) (“Plaintiff Overbey is a

prevailing party[.]”).

Thus, Ms. Overbey is entitled to recover

attorneys’ fees and costs as a prevailing party under § 1988.
A.

Lodestar Calculation

Having concluded that Ms. Overbey is entitled to attorneys’
fees, the court must next calculate the proper amount to award.
1.

Hourly Rate

“To determine a reasonable hourly rate, the lodestar method
looks to the prevailing market rates in the community where the
court sits.”

Nat’l Wildlife Federation v. Hanson, 859 F.2d 313,

317 (4th Cir. 1988).

In the District of Maryland, attorneys’ fees

are presumed in line with those prevailing in the community if
they abide by the Guidelines Regarding Hourly Rates contained in
Appendix B of the Local Rules.1

“[T]he burden rests with the fee

1

The Local Rules provide non-binding guidelines regarding
reasonable hourly rates that vary depending on how long an attorney
has been admitted to the bar. The Local Rules put forth the
following guidelines: $150-225 for lawyers admitted to the bar
13

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applicant to establish the reasonableness of a requested rate.”
Robinson, 560 F.3d at 244 (quoting Plyler v. Evatt, 902 F.2d 273,
277 (4th Cir. 1990)).
As discussed above, Ms. Overbey was represented in this case
by counsel from both the Maryland ACLU and the Washington D.C.
office of Crowell & Moring.

While the case was litigated in

Baltimore, Maryland, Crowell & Moring asks that the court award
its attorneys Laffey billing rates.

Counsel asserts that such

rates “are broadly in line with the prevailing rates for legal
services in complex federal litigation in the Washington, D.C.
area.”

(ECF No. 69, at 14) (citing Young v. Sarles, 197 F.Supp.

3d 38, 49 (D.D.C. 2016).

The requested Laffey rates for attorneys

who worked on this case are as follows:
Name
Daniel W. Wolff
Benjamin Wastler
Alexandra Nkechi Kanu
Tyler O’Connor
Brian C. Lewis

Years in Practice
19
10
6
6
5

Requested Laffey Rate
$759
$440
$465
$465
$465

The City contends the court should reduce the requested hourly
rates because, in some instances, such rates double or triple the

less than five years; $165-300 for lawyers admitted for five to
eight years; $225-350 for lawyers admitted for nine to fourteen
years; $275-425 for lawyers admitted for fifteen to nineteen years;
and $300-475 for lawyers admitted for twenty years or more. The
rate for paralegals and law clerks is $95-150.
14

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rates authorized by the guidelines.2 Crowell & Moring acknowledges
that such rates exceed the local rates in the Baltimore market and
this court’s guideline rates but contends that awarding such rates
is reasonable nonetheless because the politically sensitive nature
of the case required the retention of independent counsel from
outside the Baltimore market.

Moreover, counsel contends the

higher rates are justified because the case was novel and complex;
because the Laffey rates are significantly lower than the rates
regularly charged by the firm to paying clients; and because the
court’s guideline rates are not binding and reflect rates that are
several years old.

The court recognizes that the guideline rates

were last updated some time ago, in 2014.

It also recognizes that

the ACLU encountered some challenges in retaining a Baltimorebased law firm to assist in litigating a lawsuit against the City.
Nonetheless, the ACLU was not required to retain co-counsel from
Washington, D.C. and could have found counsel from elsewhere in
Maryland, or even, another state.

Likewise, while the case raised

novel and complex constitutional issues of significant importance,
the case was highly desirable for these same reasons.

Finally,

Crowell & Moring voluntarily entered the case on a pro bono fee

2

The City also argues that even if the court did accept
Washington, D.C. rates, Plaintiff has not met her burden of
providing sufficient evidence that such rates are the prevailing
market rates in the Washington, D.C. area.
The court need not
reach this argument because it will not award the Laffey rates.
15

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arrangement.

Thus,

even

taking

the

Johnson

factors

into

consideration, the court is not persuaded that the Laffey rates
are reasonable rates and will adjust the Crowell & Moring hourly
rates as follows:
Name
Daniel W. Wolff
Benjamin Wastler
Alexandra Nkechi Kanu
Tyler O’Connor
Brian C. Lewis

Years in Practice
19
10
6
6
5

Rate to be Awarded3
$500
$350
$300
$300
$300

The City does not contest the hourly rates sought by the ACLU
attorneys and such rates fall within the court’s guideline range
and below local Baltimore rates.

(ECF No. 69-8, at 4-6).

The

court agrees that the rates sought by ACLU attorneys, Deborah A.
Jeon and Nicholas Taichi Steiner, and paralegals, Amy Cruice and
Gina Elleby, are reasonable.

Thus, the court will not make any

adjustments to the hourly rates sought by the ACLU team and the
rates awarded will be the same as the rates sought, as follows:
Name
Deborah A. Jeon
Nicholas T. Steiner
Amy Cruice
Gina Elleby

Years in Practice
34
5
Paralegal
Paralegal

3

Rate to be Awarded
$475
$240
$150
$150

These rates reflect the top of the court’s guideline range,
with the exception of Mr. Wolff, whose hourly rate is slightly
higher than the top of the guidelines.
16

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2.

Reasonable Hours Worked

The ACLU and Crowell & Moring provide itemized records that
list the date of the work, who did the work, the time spent, and
a brief description of the work.

(ECF Nos. 69-1 - 69-5).4

As

instructed by the Local Rules, they divide the litigation into
phases.

Specifically, counsel assert they worked a total of 1507

hours: 323 hours on case development and background; 229.3 hours
on pleadings; 270.1 hours on motions practice round I; 414.6 hours
on appellate practice; 30.15 hours on settlement; 55.65 hours on
motions practice round II; 58.65 hours on fee petition preparation
done prior to November 1, 2020; and 125.55 hours on fee petition
preparation

done

between

November

1

and

December

including replying to the City’s opposition brief.5
4 - 73-7).

20,

2020,

(ECF Nos. 73-

The City argues that significant reductions to this

figure are warranted because none of the 414.6 hours billed for
appellate-related work is recoverable and because 103 hours’ worth

4

Crowell & Moring has exercised billing judgment in deciding
to forego recovery for all work done on this case by an additional
three partners, three associates, and various support staff
resulting in a reduction of 506 hours. (See ECF No. 69, at 17
n.14). Additionally, the ACLU has exercised billing judgment in
its decision to forego recovery for all work done on the case by
attorney, David Rocah, and law clerk, Abby Nyantaki.
(Id., at
n.15).
5

Motions practice round I encompassed defending against the
City and BPD’s motions to dismiss or for summary judgment. Motions
practice II encompassed preparing Ms. Overbey’s motion for summary
judgment on liability and damages on remand following unsuccessful
settlement efforts.
17

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of time entries are objectionable for various reasons.
Nos. 72, at 11-12 & 72-2, at 1-3).

(See ECF

The court will address these

arguments in turn.
The City argues that the court may not award any fees related
to work done on Ms. Overbey’s appeal because any application for
appeal-related attorneys’ fees must first be made to the appellate
court.

The City asserts that “[t]he Fourth Circuit has yet to

rule on whether appeal-related attorneys’ fees can be awarded by
the trial court”

and that this court should follow the lead of

the Ninth and Tenth Circuits in holding that a district court does
not have the power to award fees for work performed in the Courts
of Appeals.

(ECF No. 72, at 14) (citing Flitton v. Primary

Residential Mortg., Inc. 614 F.3d 1173, 1180 (10th Cir. 2010);
Crumpacker v. State of Kansas, 474 F.3d 747, 755-56 (10th Cir.
2007); Cummings v. Connell, 180 L.R.R.M (BNA) 2122 (9th Cir. 2006)).
Plaintiff, on the other hand, insists courts in the District of
Maryland routinely award fees for appellate work.

While not

entirely free from doubt, the court finds that a trial court may,
in fact, award attorneys’ fees for work performed on appeal.

See

McManama v. Lukhard, 616 F.2d 727, 730 (4th Cir. 1980) (per curiam)
(remanding to the district court “for an assessment of additional
attorneys’ fees against the appealing defendant to compensate the
plaintiffs

for

the

expense

of

their

successful

defense

of

[defendant’s] appeal”); Everhart v. Bd. of Educ. of Prince George’s
18

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 19 of 30

Cnty., 2016 WL 7131469 at *4 (D.Md. Dec. 5, 2016) (awarding
“attorneys’ fees and costs for all work performed related to the
Fourth Circuit appeal[.]”).
Next, the court turns to the City’s contention that further
reductions in hours are warranted for: (1) 11 hours billed for
research on Monell liability; (2) 19.55 hours billed for multiple
attendees to participate in a moot court held on October 25, 2018;
(2) 45.45 hours billed for three attorneys to prepare for and
attend oral arguments at the Fourth Circuit on January 29-30, 2019;
(3)

8.4

hours

billed

for

ACLU

associate

Nicholas

Steiner’s

participation on three amicus calls; and (4) 17.45 hours billed
for conference calls in which multiple attorneys participated.
On November 28 and 29, 2018, Crowell & Moring associate Tyler
O’Connor billed eleven hours for researching and drafting a memo
on Monell liability.

(ECF No. 69-5, at 65).

The City contends

that it should not be responsible for the cost of this research
because the Monell doctrine was not asserted in the litigation and
accordingly, a paying client would object to such charge.

The

record shows that the Monell doctrine was asserted during the
course of the litigation.

Specifically, the BPD raised Monell as

a defense to liability on Plaintiffs’ § 1983 claims in its original
motion to dismiss.

(ECF No. 22, at 2) (“A municipality may only

be liable under § 1983 ‘when execution of a government’s policy or
custom . . . inflicts the injury.’
19

Monell v. Dep’t of Soc. Servs.

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 20 of 30

of City of New York, 436 U.S. 658, 694 (1978).
acknowledged

that

the

BPD

is

not

a

party

to

the

Yet, having
settlement

agreement containing the ‘gag order’ at issue, Plaintiffs have
identified no coherent substitute theory for BPD’s liability.”).
Thus, while it was not inappropriate for Mr. O’Connor to research
the doctrine and prepare a memo on his findings, the fees here are
sought against the City, not the BPD, which was dismissed from the
suit.

The court will deduct the hours spent related to this task.
Next, the City contends that the court should strike 19.55

hours billed for four attorneys to participate in a moot court
held on October 25, 2018, in preparation for argument at the Fourth
Circuit.

(ECF No. 72-2, at 2).

The participants included two

attorneys from the ACLU, Deborah A. Jeon and Nicholas Steiner, and
two attorneys from Crowell & Moring, Daniel Wolff and Alexandra
Nkechi.

The City argues that such hours constitute duplicate

billings that run afoul of Local Rules, Guideline 2(d) which
provides that:
Generally, only one lawyer is to be
compensated for client, third party, and
intra-office conferences, although if only
one lawyer is being compensated the time
may be charged at the rate of the more
senior lawyer.
Compensation may be paid
for the attendance of more than one lawyer
where justified for specific purposes such
as periodic conferences of defined duration
held for the purpose of work organization,
strategy, and delegation of tasks in cases
where such conferences are reasonably

20

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 21 of 30

necessary for the proper management of the
litigation.
Local Rules, Appendix B, Guideline 2(d).

Ms. Overbey argues, and

the court agrees, that a moot court held in preparation of a
pending oral argument, does not fall within Guideline 2(d)’s ambit
which refers only to “common occurrences” such as “intra-office
conferences.”

While the court would not find it reasonable to

award fees for an unlimited number of attorneys to participate in
an

unlimited

number

of

moot

courts,

having

four

attorneys

participate in a single moot court was reasonable, even if there
were multiple attorneys from each firm involved.

Thus, the court

will not strike any of the 19.55 hours collectively expended on
the moot court.
The City next contests the 45.45 hours billed between January
29-30, 2019, for Crowell & Moring partner, Daniel Wolff, and ACLU
attorneys, Deborah A. Jeon and Nicholas Steiner, to prepare for,
travel to, attend, and debrief oral argument at the Fourth Circuit.
The City argues that, because only one attorney (Daniel Wolff)
actively participated on the record at the hearing, Guideline 2(c)
instructs against awarding fees for any time expended by Ms. Jeon
or Mr. Steiner.

Guideline 2(c) provides that “Only one lawyer for

each party shall be compensated for attending hearings.”

Mr.

Steiner billed 10.2 hours: 3 hours for travel to Richmond; 1 hour
to attend oral argument; 2 hours to debrief after oral argument;

21

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 22 of 30

2 hours observing other en banc cases; and 2.20 hours to travel
home.

Ms. Overbey responds that the court should not write off

Mr. Steiner’s time because “the importance of oral argument at the
Fourth Circuit . . . necessitates the presence of junior attorneys
to assist both with preparations and to provide arguing counsel
with case and record citations where helpful and appropriate to
assist arguing counsel with the presentation of argument and in
responding to the [c]ourt’s questions.”

(ECF No. 73, at 13).

The

court disagrees and will not award Mr. Steiner any time spent
relating to oral argument, resulting in a deduction of 10.2 hours.
Ms. Jeon and Mr. Wolff’s time entries related to oral argument are
not as clearly resolved as a single entry of time often accounts
for time spent on multiple activities.

For example, Mr. Wolff

logged 7.75 hours on January 30, 2019 for “final prep for argument,
attend and present argument, post argument conferral with ACLUMD,

and

return

to

DC

from

argument

in

conference with Mr. Elgarten about this.”

Richmond,

VA;

office

(ECF No. 72-2, at 3).

The same is true for Ms. Jeon who logged 10 hours for attending
oral

argument,

meeting

with

co-counsel,

traveling

preparing a summary of the events for Plaintiffs.

home,

and

(Id., at 2).

Still, the numbers of hours requested by Ms. Jeon and Mr. Wolff
are low and appear to be a reasonable amount of time for completing
all the specified activities listed.

Mindful of the fact that

Crowell & Moring has already shaved off 506 hours from the number
22

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 23 of 30

of hours it requests compensation for, the court will not deduct
additional hours for time spent by Mr. Wolff or Ms. Jeon.
The City also protests 8.4 hours billed by Mr. Steiner for
participation in three amicus calls on January 12, 2018; February
2, 2018; and April 6, 2018 on the ground that such billings are
redundant because Ms. Jeon was also on the calls.

The court first

notes that if the City contests only Mr. Steiner’s participation
on the calls, as it states,6 it should seek a reduction of only
1.5 hours as this is the total amount of time billed by Mr. Steiner
for all three calls.

(ECF No. 72-2, at 2).

For the sake of

narrowing the issues in dispute, Ms. Overbey does not contest a
reduction of 1.5 hours.

Thus, the court will deduct 1.5 hours of

Mr. Steiner’s time.
The City also disputes 12.25 hours billed on June 29, 2017,
by Crowell & Moring attorneys, Daniel Wolff and Benjamin Wastler,
and ACLU paralegal, Gina Elleby on the ground that such billings
are duplicative because they bill for the same work.
2, at 2).

(ECF No. 72-

Plaintiff responds that such billings are related but

not duplicative.

The court finds, on the basis of the billing

6

The City states that, as a general matter, it does not
contest instances in which one attorney from Crowell & Moring and
one attorney from the ACLU billed for the same activity, only
instances in which more than one attorney from the same firm billed
for the same activity. (See ECF No. 72, at 11 n.5).
23

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 24 of 30

descriptions, that such entries are similar in nature but not
duplicative.

No reductions in hours will be made.

Finally, the City argues that Crowell & Moring overstaffed
four conference calls resulting in 17.45 hours of duplicative
billing entries in violation of Guideline 2(d).

The calls were

held on April 18, 2016; December 12, 2016; February 3, 2017; and
May 26, 2017.

Each lasted roughly one hour, and the billing

entries describe the calls as discussing “strategy for [the] case
going forward.”

(ECF No. 72-2, at 1).

The April 2016 call was

staffed by two ACLU attorneys and three Crowell attorneys; while
the other three calls were staffed by one ACLU attorney and two or
three Crowell attorneys.

(Id.).

The court finds that such calls,

occurring roughly once a quarter, are of the type of “periodic”
planning

calls

participation

by

that
more

Guideline

2(d)

than

attorney.

one

exempts

as

See

warranting

Local

Rules,

Guideline 2(d) (“Compensation may be paid for the attendance of
more than one lawyer where justified for specific purposes such as
periodic conferences of defined duration held for the purpose of
work organization, strategy, and delegation of tasks in cases where
such

conferences

are

reasonably

management of the litigation.”).

necessary

for

the

proper

Accordingly, the court will not

deduct any hours for time spent on such calls.
The court is satisfied that, after taking into consideration
the above deductions, as well as the deduction already made by
24

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 25 of 30

counsel in the exercise of their billing judgment, the number of
hours remaining represents a reasonable number of hours.

For

clarity, the court finds that the below reflects the number of
hours appropriately expended by each attorney for purposes of
calculating a fee award.

Accordingly, at the reasonable billing

rates put forth in the preceding section, the initial lodestar
figure is $523,416.50.

Name
Deborah Jeon
Nick Steiner
Amy Cruice
(paralegal)
Gina Elleby
(paralegal)

Case Dev.
60.3
1.8
0.6

Pleadings
28.3
4
N/A

Motions I
7.8
27.3
N/A

ACLU Hours
Appellate Practice
68.3
23.2
N/A

Settlement
16.4
N/A
N/A

Motions II
9.4
0.5
N/A

Fee Prep.
10.8
N/A
1.1

Post-Motion
29.3
N/A
2

Reductions
-3.7
-11.7
0

Total Hours
226.9
45.1
3.7

17.3

N/A

N/A

0.6

N/A

N/A

N/A

N/A

0

17.9

Name
Daniel Wolff

Case Dev.
55.5

Pleadings
30.75

Motions I
42.75

Crowell & Moring Hours
Appellate Practice
Settlement
136.25
13.75

Motions II
5.25

Fee Prep.
5.5

Post-Motion
9

Reductions
-9.25

Total Hours
289.5

Alexandra Kanu
Tyler O’Connor
Brian C. Lewis
Ben Wastler
Leland Frost
Elizabeth Dawson
*With the exception
claims.

46.25
44
26.75
59.75
14.5
49.5
2.5
N/A
N/A
79
107.75
116
N/A
N/A
N/A
N/A
N/A
N/A
of Nick Steiner and Tyler O’Connor’s

3.

80.75
105.5
N/A
N/A
N/A
N/A
reductions, all other

N/A
N/A
N/A
8
-30
175.75
N/A
25.5
5.25
31.25
-11
280.21
N/A
15
36
30
0
83.5
N/A
N/A
N/A
N/A
-38.25
264.5
N/A
N/A
N/A
4.75
0
4.75
N/A
N/A
N/A
11.25
0
11.25
reductions in hours come from the backing out of hours spent on the Brew’s

Adjustments to the Lodestar

“The product of reasonable hours times a reasonable rate does
not end the inquiry.

There remain other considerations that may

lead the district court to adjust the fee upward or downward,
including

the

important

factor

Eckerhart, 461 U.S. at 434.

of

the

‘results

obtained.’”

One such consideration is the extent

of the plaintiff’s success, i.e., whether she has succeeded on all
or only some of her claims.
In this situation two questions must be
addressed. First, did the plaintiff fail to
25

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 26 of 30

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?
In some cases a plaintiff may present in one
lawsuit distinctly different claims for relief
that are based on different facts and legal
theories. In such a suit, even where
the claims are brought against the same
defendants—often an institution and its
officers, [] counsel’s work on one claim will
be unrelated to his work on another claim.
Accordingly, work on an unsuccessful claim
cannot be deemed to have been “expended in
pursuit
of
the
ultimate
result
achieved.” Davis v. County of Los Angeles, 8
E.P.D. ¶ 9444, at 5049 (CD Cal. 1974). The
congressional intent to limit awards to
prevailing
parties
requires
that
these
unrelated claims be treated as if they had
been
raised
in
separate
lawsuits,
and
therefore no fee may be awarded for services
on the unsuccessful claim.
It may well be that cases involving such
unrelated claims are unlikely to arise with
great frequency. Many civil rights cases will
present only a single claim. In other cases
the plaintiff’s claims for relief will involve
a common core of facts or will be based on
related legal theories.
Much of counsel’s
time will be devoted generally to the
litigation as a whole, making it difficult to
divide the hours expended on a claim-by-claim
basis. Such a lawsuit cannot be viewed as a
series of discrete claims. Instead the
district
court
should
focus
on
the
significance of the overall relief obtained by
the plaintiff in relation to the hours
reasonably expended on the litigation.
Id., at 434-35.
prevailing

The City argues that, while Ms. Overbey was a

party,

she

sought

declaratory

26

relief,

injunctive

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 27 of 30

relief, and monetary damages but ultimately obtained only monetary
damages and only on her constitutional claim.

Thus, the City

asserts that Ms. Overbey was only “marginally” successful and
should be awarded a reduced lodestar figure to account for her
unsuccessful claims.

(ECF No. 72-2, at 12).

While the court did

not ultimately grant declaratory or injunctive relief, it is myopic
to state that she “only” received monetary relief.

The decision

of the Fourth Circuit was a type of declaratory relief, concluding
that the non-disparagement clause was unenforceable.

And, while

the City had stopped using the clause by November 2017, it had
continued to defend its prior use vigorously.
Moreover, the billing entries do not allow for a simple
procedure for segregating counsels’ work on each of Ms. Overbey’s
claims nor can the court conceive of a non-arbitrary procedure for
segregating the time spent by counsel on each claim.

All of Ms.

Overbey’s claims arose out of the same common core of facts
involving the City’s use of a highly restrictive non-disparagement
clause in settling police brutality cases and involved related
legal theories.

(See ECF No. 5).

Moreover, the bulk of counsels’

time was likely spent on Ms. Overbey’s successful First Amendment
claim given that it was the most complex and novel claim raised,
as both parties concede. (ECF No. 62, at 2-4) (the City describing
Ms. Overbey’s victory as “in the nature of a virtual lightning
strike” that “no reasonable person ever expected . . . would bear
27

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 28 of 30

fruit”).

Thus, the court is satisfied that the amount of fees

awarded under its initial lodestar calculation is reasonable in
relation to the degree of Ms. Overbey’s success.

The court will

not make any further adjustments on this ground.
Finally, the City argues that its “precarious” financial
position warrants a downward adjustment, particularly because its
“available resources” for “provid[ing] fundamental and urgently
needed services to its residents” are “waning.”

(ECF No. 72, at

16-17) (citing Arnold v. Burger King Corp., 719 F.2d 63, 67 (4th
Cir. 1983).

As the Court of Appeals for the D.C. Circuit noted in

its opinion in Copeland v. Marshall, 641 F.2d 880, 894–95 (D.C.
Cir. 1980), neither the statutory text of § 1988 nor the dual
policies underlying the statute’s enactment (vindicating civil
rights and deterrence) warrant awarding a lower fee award when the
defendant is the government.

To the contrary, the court stated

that “[i]f anything, it is even more important to provide adequate
fees to [civil rights] litigants who prevail against the government
. . . [because] litigants against the government face greater
obstacles than litigants against private defendants.”

Id.

The

amount of a reasonable award in this case is unchanged by the fact
that such award is to be paid from the City’s tax revenues.
The

City

also

contends

that

the

lodestar

fee

award

is

disproportionate to the damages award and that the court should
make

a

downward

adjustment

on
28

this

basis

to

avoid

awarding

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 29 of 30

Plaintiff a “windfall.”

The proportionality of the fee award to

the damage award here is inconsequential.
Congress did not intend for fees in civil
rights cases, unlike most private law cases,
to depend on obtaining substantial monetary
relief. Rather, Congress made clear that it
“intended that the amount of fees awarded
under [§ 1988] be governed by the same
standards which prevail in other types of
equally complex Federal litigation, such as
antitrust cases and not be reduced because the
rights involved may be nonpecuniary in nature.
City of Riverside v. Rivera, 477 U.S. 561, 575–76 (1986) (citing
Senate Report, at 6, U.S. Code Cong. & Admin. News 1976, p. 5913).
“Congress recognized that reasonable attorney’s fees under § 1988
are not conditioned upon and need not be proportionate to an award
of money damages.”

Id.

Hence, the City is not entitled to a

downward adjustment on this ground either.
B.

Litigation Costs

Ms. Overbey also requests reimbursement of $20,378.427 in
litigation costs, including federal court filing fees, express
delivery, transcript services, inhouse duplicating, copying and
binding, process server fees, local transportation, train fare,
and legal research.

A prevailing party is entitled to reasonable

litigation expenses under Section 1988.
1071, 1084 (4th Cir. 1986).

Daly v. Hill, 790 F.2d

Costs that may be charged include

7

The ACLU requests only $593.94 in costs while Crowell &
Moring requests $19,784.48 in costs. (See ECF Nos. 69-3, at 2 and
69-6, at 4).
29

Case 1:17-cv-01793-DKC Document 74 Filed 07/19/21 Page 30 of 30

“those reasonable out-of-pocket expenses incurred by the attorney
which are normally charged to a fee-paying client, in the course
of providing legal services.”

Spell v. McDaniel, 852 F.2d 762,

771 (4th Cir. 1988). While the costs of computerized legal research
are recoverable, N. Carolina Right to Life Pol. Action Comm. v.
Leake, 939 F. Supp. 2d 526, 530–31 (E.D.N.C. 2013), Plaintiffs
fail to identify which research costs are attributable to research
for Ms. Overbey’s claims and which are attributable to research
for the Brew’s claims.

The total amount of costs attributable to

legal research is $9,995.02.

Because it is all but certain that

some portion of this amount is attributable to research done on
behalf of the Brew related to standing, the court will subtract
10% ($999.50) from the total amount of costs recovered for legal
research.

The other remaining costs are reasonable and will be

awarded in full.

Accordingly, the total amount of costs awarded

will be $19,378.92.
IV.

Conclusion
Accordingly, Plaintiffs’ motion for attorneys’ fees will be

granted in part and denied in part.

Ms. Overbey will be awarded

$523,416.50 in attorneys’ fees and $19,378.92 in costs, for a grand
total of $542,795.42.

The Brew will be awarded nothing.

separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
30

A