United States of America v. City of New York

Filing 1269

MEMORANDUM AND ORDER: The court GRANTS IN PART Plaintiff-Intervenors' Application for Expert Fees and Costs. Scott+ Scott is awarded a total of $198,715.11; Levy Ratner is awarded a total of$5,856.00, and CCR is awarded a total of $33,642.00. So Ordered by Judge Nicholas G. Garaufis on 1/24/2014. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,
Plaintiff,

MEMORANDUM & ORDER

-and-

07-CV-2067 (NGG) (RLM)

THE VULCAN SOCIETY, INC.,for itselfand on
behalfof its members, JAMEL NICHOLSON, and
RUSEBELL WILSON, individually and on behalf
ofa subclass ofall other victims similarly situated
seeking c/asswide injunctive relief;
ROGER GREGG, MARCUS HAYWOOD, .and
KEVIN WALKER, individually and on behalf of a
subclass of all other non-hire victims similarly
situated; and
CANDIDO NuNEZ and KEVIN SIMPKINS,
individually and on behalf of a subclass ofall other
delayed-hire victims similarly situated,
Plaintiff-Intervenors,
-againstTHE CITY OF NEW YORK,
Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.

On August 30, 2013, the court issued a memorandum and order granting in part and
denying in part Plaintiffs' motion for attorney's fees and expenses. (Fees Order (Dkt. 1194).) At
that time, the court declined to decide whether Plaintiff-Intervenors were entitled to be
reimbursed for all or part of the fees they claimed for expert assistance because it lacked
sufficient information regarding the experts' activities. (Id. at 25-26.) Plaintiff-Intervenors then
filed affidavits providing detailed billing statements to the court, and Defendant filed a letter

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opposing the request. (Sept. 20, 2013, Ltr. (Dkt. 1203), Lossia Deel. (Dkt. 1203-1), Scolnick
Deel. (Dkt. 1203-2), Schwarz Deel. (Dkt. 120-3); Oct. 4, 2013, Def. Opp'n to Pl. Appl. for
Expert Costs (Dkt. 1212).) The court must now decide whether to award additional
compensation to Plaintiff-Intervenors based on their more detailed statements regarding expert
fees. The court assumes familiarity with its August 30, 2013 Memorandum and Order and with
the facts of this case.
An award of fees under Title VII explicitly includes award of expert fees. 24 U.S.C. §
2000e-5(k); Am. Fed'n of State, Cnty. & Mun. Emps., AFL-CIO (AFSCME) v. Cnty. of Nassau,
96 F.3d 644, 650 (2d Cir. 1996). However, these fees are typically awarded only when the
expert aided the plaintiff in claims on which he or she was successful. See Port Auth. Police
Asian Jade Soc. ofN.Y. & N.J. Inc. v. Port Auth. ofN.Y. & N.J., 706 F. Supp. 2d 537, 543
(S.D.N.Y. 2010) (declining to award expert costs in a Title VII case because the expert's
testimony was excluded at trial); Trout v. Winter, 464 F. Supp. 2d 25, 32-33 (D.D.C. 2006)
(declining to award fees because expert only aided in pursuit of an unsuccessful claim), aff'd sub
nom., Trout v. Sec'y of the Navy, 540 F.3d 442 (D.C. Cir. 2008). A court may also "refuse to
grant fee requests that are excessive or redundant." BD v. DeBuono, 177 F. Supp. 2d 201, 208
(S.D.N.Y. 2001).
The submissions from Plaintiff-lntervenors, including the affidavits of Dana Lossia,
Judith Scolnick, and Ghita Schwarz, detail expert assistance Plaintiff-Intervenors received in
relation to two broad categories: the adverse impact of previous written firefighter examinations
and design of new examinations, and the eligibility of the class for backpay relief.
With regard to adverse impact, Plaintiff-Intervenors retained the services of Dr. Joel
Wiesen, an industrial psychologist who works for Applied Personnel Research. Dr. Wiesen's

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billing rate was $270 per hour. (Lossia Deel.~ 4.) The court considers Dr. Wiesen's hourly rate
to be a reasonable one for a professional. Scott+ Scott consulted Dr. Wiesen regarding the
adverse impact of firefighter examinations, incurring expenses of $264,953 .48 over the course of
several years. (Scolnick Deel.~ 3.) Scott+ Scott has provided the court with a detailed
breakdown of Dr. Wiesen's work.

(Id.~

6.) Defendant considers this work to duplicate that of

Plaintiff U.S. Government's experts. (Def. Opp'n at 6-9.) Even with the availability of these
experts, however, it is reasonable for a client to seek independent advice on such a key part of his
case. The court also credited Dr. Wiesen's report at several points in its opinion granting
summary judgment on the issue of the adverse impact of the written examinations. (July 22,
2009, Disp. Impact Op. (Dkt. 294) at 16-20, 72, 75-77.) Although the Second Circuit overturned
the court's grant of summary judgment on the Plaintiffs disparate treatment claim, that appeal
did not challenge the disparate impact judgment or the court's determination that a newer
examination, Exam 6019, was invalid. See United States v. City of New York, 717 F.3d 72, 77
(2d Cir. 2013). Thus, Scott+ Scott is entitled to some degree of reimbursement for Dr. Wiesen's
assistance. However, the court declines to award Scott + Scott the full amount claimed. Given
the very large amount of time devoted to certain tasks (assuming that all entries reflect billing at
a $270 hourly rate) and the overlap between Dr. Wiesen's work and that of Government experts,
which should tend to reduce the time needed for these tasks, the court considers that there may
have been some inefficiencies in Dr. Wiesen's work. Thus, a twenty-five percent reduction in
Dr. Wiesen' s bill is appropriate to both recognize his work and to bring his final bill more in line
with what a reasonable client would be willing to pay for that work. As a result, Scott + Scott is
awarded $198,715.11 to reimburse the cost of Dr. Wiesen's work.

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Levy Ratner paid $5,856.00 for Dr. Wiesen's services in connection with analysis of
Exam 6019 and Exam 2000 and provided the court with a detailed invoice of Dr. Wiesen's work.
(Id. at iii! 3, 5.) The time entries listed by Levy Ratner appear to be reasonable for the tasks
described. Defendant nonetheless challenges these entries because the court did not specifically
mention Dr. Wiesen's work on Exam 6019, and because the parties did not discuss Dr. Wiesen's
work in a letter submitted to Special Master Mary Jo White regarding Exam 2000. (Def. Opp'n
at 9-10.) The court considers that it was reasonable for the parties to consult with their own
expert with regards to both these examinations because of their importance to the provision of
relief in this case. The failure to mention Dr. Wiesen's work in their letter to Special Master
White is not fatal to the claim. Accordingly, Levy Ratner is entitled to be reimbursed $5,856.00
for the services of Dr. Wiesen.
The Center for Constitutional Rights (CCR) paid $33,642.00 for Dr. Wiesen's services
with respect to analysis of Exam 6019. (Schwarz Deel. iii! 3-6.) Dr. Wiesen would already have
been familiar with Exam 6019 from his work for Levy Ratner. (See Lossia Deel. if 5 (2009 time
entries).) However, his work for CCR involved additional aspects of the examination and
critique of other experts' work. Plaintiff-Intervenors were justified in hiring their own expert
even though a Government expert did similar work. (See July 16, 2010, Pl.-Intervenors Pre-Hrg
Br. (Dkt. 490).) Determining the validity of Exam 6019 involved extensive discovery and the
production of a very large volume of material by the City. (See May 26, 2010, Mem. & Order
Appointing Special Master (Dkt. 441) (describing discovery problems related to Exam 6019).)
This production took place during the months in 2010 for which CCR claims that it sought Dr.
Wiesen's assistance. (Schwarz Deel. iii! 3-6.) CCR is awarded $33,642.00 to reimburse these
expenses.

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With regard to backpay issues, Plaintiff-Intervenors retained the services of Dr. Louis
Lanier, managing director of Econ One, and his associates, Adrienne Ingrum and Mark Sussman.
Dr. Lanier's hourly rate was $225 and that of his associates was $125. (Schwarz Deel.~ 7.)
These are reasonable hourly rates for professionals in the field of economics. Levy Ratner paid a
total of $4,980.82 to Econ One in connection with backpay analysis and CCR paid an additional
$24,087.50 for the same. However, as Defendant points out, the court rejected Dr. Lanier's
method of calculating backpay and denied Plaintiffs' motion for summary judgment on backpay.
(See Def. Opp'n at 5-6; Mar. 8, 2012, Backpay Order (Dkt. 825) at 37-40.) As a result, PlaintiffIntervenors are not entitled to an award of fees for Dr. Lanier because they did not prevail on the
issue for which they sought his testimony. See Trout, 464 F. Supp. 2d at 32-33.
In light of these factors, the court GRANTS IN PART Plaintiff-Intervcmors' Application
for Expert Fees and Costs. Scott+ Scott is awarded a total of$198,715.11; Levy Ratner is
awarded a total of$5,856.00, and CCR is awarded a total of $33,642.00.
SO ORDERED.

s/Nicholas G. Garaufis

a.

NICHOLAS
GARAUf1s
United States District Judge

Dated: Brooklyn, New York
January _K/., 2014

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