Davis et al v. Shah
DECISION AND ORDER granting 52 Motion for Attorney Fees. Plaintiffs' application [#52] for attorneys fees and costs is granted. Plaintiffs are awarded total fees and disbursements in the amount of $397,609.08. Signed by Hon. Charles J. Siragusa on 6/22/17. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HARRY DAVIS, et al.,
DECISION AND ORDER
NIRAV SHAH, individually and in his official
capacity as Commissioner of the New York
State Department of Health,
Bryan D. Hetherington, Esq.
Geoffrey A. Hale, Esq.
Jonathan Feldman, Esq.
Empire Justice Center
One West Main Street, Suite 200
Rochester, New York 14614
Martha J. Perkins, Esq.
National Health Law Program
101 E. Weaver Street, Suite G-7
Carrboro, North Carolina 27510
Sarah J. Somers, Esq.
National Health Law Program
200 N. Greensboro Street, Suite D-13
Carrboro, North Carolina 27510
J. Richard Benitez, A.A.G.
Office of the New York State
144 Exchange Boulevard, Suite 200
Rochester, New York 14614
This was an action brought by Medicaid recipients to challenge provisions of New
York State Social Services Law, concerning coverage for prescription footwear and
compression stockings. On July 1, 2016, the Court issued a stipulated Order awarding
declaratory and permanent injunctive relief to Plaintiffs (Docket No. [#51]), and the
parties have stipulated that Plaintiffs were the prevailing parties in the underlying
action.1 Now before the Court is Plaintiff’s application [#52] for attorneys’ fees, which
Defendant is opposing in part. The application is granted.
The reader is presumed to be familiar with the underlying facts of this case, as
discussed in lengthy prior Decisions and Orders from this Court and from the Second
Circuit Court of Appeals. See, e.g., Davis v. Shah, 12-CV-6134, 2013 WL 6451176
(W.D.N.Y. Dec. 9, 2013), aff’d in part, vacated in part, and remanded, Davis v. Shah,
821 F.3d 231 (2d Cir. 2016). It is sufficient to note that this was a complicated class
action, involving challenges to the New York Medicaid statute under four different
sections of the federal Medicaid Act (Title XIX of the Social Security Act), as well as
additional challenges under Title II of the Americans With Disabilities Act (“ADA”) and
Section 504 of the Rehabilitation Act (“Section 504").
As the “prevailing parties” within the meaning of 42 U.S.C. § 1988 and 42 U.S.C.
§ 12205, Plaintiffs have applied for an award of attorneys’ fees. Plaintiffs seek a total
combined award of attorney’s fees and costs in the amount of $ 397,609.08.
Movants are seeking payment for work performed by six attorneys and one
paralegal. The six attorneys are Bryan Hetherington (“Hetherington”), Trilby DeJung
(“DeJung”), Jonathan Feldman (“Feldman”), Geoffrey Hale (“Hale”), Jane Perkins
(“Perkins”) and Sarah Somers (“Somers”). The paralegal is Amanda Gallipeau
(“Gallipeau”). At all relevant times Hetherington, DeJung, Feldman, Hale and Gallipeau
were associated with the Empire Justice Center, a public interest law firm.
Hetherington, DeJung, Feldman and Hale have been practicing law for 41 years, 30
years, 28 years, and 7 years, respectively. Gallipeau has been employed as a
paralegal for the Empire Justice Center for 7 years. At all relevant times, Perkins and
Somers were associated with the National Health Law Program, a non-profit
organization comprised of attorneys and health law policy analysts. Perkins and
Somers have been practicing law for 34 years and 24 years, respectively. All of the
aforementioned attorneys have significant expertise in the field of health care law and/or
disability law. Somers and Perkins practice exclusively in the field of health care law.
Movants maintain that the following hourly rates are reasonable under the
circumstances of this action:
Hetherington, DeJung, and Perkins:
Feldman and Somers:
Movants contend that the aforementioned hourly rates are reasonable in light of their
experience and the complexity of this action. Regarding the complexity of the action,
See, Stipulation and Order Concerning Attorneys’ Fees [#46].
Movants describe the field of medicaid litigation as “notoriously complex.” 2 Movants
have submitted supporting affidavits and curricula vitae listing their academic and
professional achievements in the field of public interest health care law, which are vast.
Movants have also submitted an affidavit from Rene H. Reixach, Jr., (“Reixach”),
a partner at Woods Oviatt Gilman LLP, in the firm’s Elder Law and Health Care Practice
Group. Reixach has been practicing law since 1972 and is familiar with billing rates
charged by law firms for litigation services in Western New York. Reixach opines that
the Empire Justice Center “is the premier firm in Rochester for bringing complex civil
litigation on behalf of low-income [persons],” and that the National Health Law Program
“is the preeminent public sector law firm in the nation on issues involving the Medicaid
program.”3 Reixach further indicates that the hourly rates being requested by Movants
are “very reasonable for attorneys of their skills, knowledge, experience and reputation,”
and that they are in fact “comparable to and even lower than rates charged by other law
firms” in Rochester and Buffalo.4 Finally, regarding the complexity of the subject action
and its relation to the requested rates, Reixach states:
The Medicaid statute, and its implementing regulations and policy
directives, is as complex as the tax code, or more so. It has been
described by federal courts as ‘among the most intricate [statutes] ever
drafted by Congress,’ ‘unintelligible to the uninitiated,’ ‘a virtually
impenetrable thicket of legalese and gobbledygook, an ‘aggravated
assault on the English language, resistant to attempts to understand it,
and a ‘Serbonian bog.’ Counsel who have mastered the intricacies of the
Medicaid statute have a highly specialized expertise that justifies the
requested hourly rates reflective of the rates for attorneys handling other
Hale Declaration at ¶ 71.
Reixach Affidavit at ¶ ¶ 4-5.
Reixach Affidavit at ¶ 20.
complex and sophisticated litigation.
Reixach Aff. ¶ 12.
Movants have also submitted detailed, contemporaneous time records for each
attorney/paralegal. Applying the proposed rates set forth earlier to the number of hours
billed by each attorney/paralegal, Movants calculate the requested fees as follows:
Hetherington: 188.1 hours x $375 = $70,537.50
DeJung: 32.5 hours x $375 = $12,187.50
Perkins: 192.1 hours x $375 = $72,037.50
Feldman: 140 hours x $350 = $49,000.00
Somers: 26.7 hours x $325 = $8,677.50
Hale: 668.2 hours x $260 = $173,732.00
Gallipeau: 82.9 hours x $115 = $9,533.50
The total request for fees is $395,705.50. The total request for disbursements is
$1,903.58. The combined request for attorney’s fees and disbursements is
Defendant maintains that the demand should be reduced. More specifically,
Defendant objects to two aspects of the fee request: Hourly rates and number of hours
billed. With regard to number of hours billed, Defendant points out that the final
stipulated Order [#51] granting permanent declaratory and injunctive relief to Plaintiffs
came only after an aspect of this Court’s ruling on summary judgment [#39] was
appealed to the Second Circuit Court of Appeals. Defendant maintains that the hours
which Plaintiffs’ counsel billed in connection with that appeal “arguably reflect
duplicative research and argument,” meaning that Plaintiffs’ counsel may be attempting
to charge for work on the appeal that is duplicative of work they performed before this
Court. However, Defendant does not assert that Plaintiffs’ counsel actually billed twice
for the same work, nor has he flagged any particular time entry as being excessive.
Rather, Defendant merely asserts that, “[t]o the extent that the plaintiff’s legal research
and arguments were duplicative[,] . . . an across the board 10% reduction [in the
number of hours] is warranted.” Def. Response [#54] at p. 3 (emphasis added).
Defendant also opposes the proposed hourly rates. However, Defendant’s
submission [#54] specifically objects only to the rates proposed by Hetherington,
DeJung, Feldman and Hale, whose rates he contends should be reduced to $350/hr,
$350/hr, $305/hr and $185/hr, respectively. 5 Defendant contends that these rates are
appropriate here, since they are the same rates that were recently approved for these
same attorneys in the case of Myers v. Bd. of Educ. of the Batavia City Sch. Dist., 13CV-342S, 2016 WL 4642920 (W.D.N.Y. Sep. 7, 2016) (“Myers”). Defendant also cites
other cases suggesting that in general, courts in the Western District have approved
hourly rates that are lower than those being requested.
Whether intentionally or not, Defendant’s submission does not mention the rates
requested by Somers, Perkins or Gallipeau, and accordingly those proposed rates are
unopposed.6 Defendant also has not challenged the amount that Movants are seeking
for costs and disbursements.
Defendant’s Response Memo of Law [#54] at p. 2.
Plaintiffs contend that Defendant’s failure to mention the rates proposed by Perkins and Somers
logically undercuts his opposition to the rates requested by Hetherington, DeJung and Feldman, stating:
“Because Ms. Perkins’ level of experience falls within the same tier as Bryan Hetherington and Trilby
DeJung, and because Ms. Somers’ level of experience falls within the same tier as Jonathan Feldman,
the Defendant’s concession regarding Perkins’ and Somers’ rates logically means that Hetherington, De
Jung and Feldman’s rates are reasonable, as well.” Pl. Reply Memo [#55] at p. 2.
Movants are seeking an award of attorney’s fees and costs pursuant to 42
U.S.C. § 1988 and 42 U.S.C. § 12205. “In calculating attorney's fees, the district court
must first determine the lodestar—the product of a reasonable hourly rate and the
reasonable number of hours required by the case— which creates a presumptively
reasonable fee.” Stanczyk v. City of N.Y., 752 F.3d 273, 284 (2d Cir. 2014) (quoting
Millea v. Metro–N. R.R. Co., 658 F.3d 154, 166 (2d Cir.2011) (internal quotation marks
omitted). “The district court then has discretion to reduce the lodestar to reflect the
degree of success achieved at trial.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 43435, 103 S.Ct. 1933 (1983)). “In setting the reasonable hourly rate, courts should bear in
mind case-specific variables that [the Second Circuit] and other courts have identified
as relevant to the reasonableness of attorney's fees. These include, among others the
Johnson7 factors.” Gortat v. Capala Bros., Inc., 621 F. App'x 19, 22 (2d Cir. 2015)
(citations and internal quotation marks omitted). The twelve Johnson factors are as
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney's customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed by
the client or the circumstances; (8) the amount involved in the case and
the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length
of the professional relationship with the client; and (12) awards in similar
Referring to Johnson v. Georgia Highway Express, 488 F.2d 714, 717-719 (5th Cir. 1974).
K.L. v. Warwick Valley Cent. Sch. Dist., 584 F. App'x 17, 18, n. 2 (2d Cir. 2014) (quoting
Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany and Albany
County Bd. of Elections, 522 F.3d 182, 186 n. 3 (2d Cir. 2008)).
Applying these principles, the Court finds that Movants are entitled to the full
amount of $397,609.08, for attorney’s fees and disbursements, that they have
requested. See, Hetherington Decl. [#52-4] at ¶ ¶ 41-43 (describing calculation of
lodestar) & Exhibit C (spreadsheet) and Hale Reply Declaration, Ex. B [#55-1] at p. 12
(setting forth additional time expended since February 2017). In arriving at this lodestar
figure the Court has used the hourly rates proposed by Movants, which are reasonable
under the particular facts of this case: Hetherington, DeJung and Perkins: $375/hr;
Feldman $350/hr; Somers $325/hr; Hale $260/hr; and Gallipeau $115/hr.
In determining that these rates are reasonable, the Court has considered the
Johnson factors, including the novelty and difficulty of the questions presented in this
action, the level of skill required to perform the legal service properly, and the
experience, reputation, and ability of the attorneys. This case presented complex
issues of Medicaid law and disability law,8 and Plaintiffs’ counsel are experienced and
well-respected practitioners in those areas. The Court also credits the Reixach affidavit,
which indicates that these rates are reasonable, and, in fact, slightly below market rate,
for upstate New York.
Although Defendant has argued that slightly lower hourly rates should be applied
to Hetherington, DeJung, Feldman and Hale, the case authorities upon which he relies
The Second Circuit’s decision in this case, which was issued fifteen months after oral argument,
is 29 pages in length when printed from Westlaw and 34 pages in length as printed in the Federal
are distinguishable on their facts. In particular, the Myers decision is distinguishable.
As Defendant correctly points out, in Myers, Hetherington and Feldman represented
that their hourly rates were $350 and $305, respectively, and that the hourly rate for
their associate with seven years of experience (comparable to Hale) was $185.9 This
past September, the Hon. William M. Skretny approved those rates as “reasonable.”
Myers, 2016 WL 4642920 at *4. Nevertheless, Movants have explained that the fee
award in Myers should not dictate what the reasonable hourly rates ought to be in this
action, for several reasons. Preliminarily, Movants point out that regardless of what
they asked for in Myers, they have submitted proof (Reixach’s affidavit) that the rates
they are currently requesting are “reasonable, [and even] a bit below market rates.” 10
Further, Movants contend that they intentionally requested below-market rates in Myers,
because they were relatively inexperienced in litigating Title IX discrimination cases;
because the case was relatively simple; and because the defendant was a relatively
small school district with a modest annual budget. Movants argue that they “should not
be penalized in this case for seeking below-market rates in the Myers case.”11 The
Court agrees, and therefore denies Defendant’s objection.
The Court is aware that the rates that it is approving here are somewhat higher
than have been approved by other Western District judges in certain cases. For
example, in Costa v. Sears Home Improvement Prods., Inc., 6:12-CV-6235 EAW, 212
F.Supp.3d 412 (W.D.N.Y. Sep. 22, 2016), Judge Wolford recently approved lower
Myers, 13-CV-342S, Docket No. [#29] at p. 11, ¶ 35.
Pl. Reply Memo [#55] at p. 1.
Pl. Reply Memo [#55] at p. 3. Movants further contends that the other cases cited by
hourly rates, stating:
The hourly rates generally allowed in this District for a case such as this
are in the range of $225-$250 for partner time or senior associate time,
$150-$ 175 for junior associate time, and $75 for paralegal time. Indeed,
while Defendants do not contest an award of $300 for senior partner time
in this case, that rate is at the high end of what has typically been awarded
in this District for similar types of cases.
Id., 212 F. Supp. 3d at 420 (emphasis added; collecting cases). However, the Court
does not believe that its ruling here is inconsistent with Costa, as there is little similarity
between the two cases. To begin with, Costa involved a single claim of Title VII
retaliation action that was “not particularly complex,” Id. at 419 & 420, and Judge
Wolford indicated that in setting a reasonable hourly rate, she looked primarily at other
Title VII cases for guidance. Id. at 420, n. 5 (“[T]he most relevant authority are those
cases dealing with reasonable hourly rates for plaintiff’s attorneys in Title VII cases, or
other similar employment discrimination or civil rights cases.”). Further, the plaintiff’s
attorneys had no particular expertise in Title VII law, or, at least, did not typically handle
such cases on behalf of plaintiffs. Id. at 420. Moreover, the plaintiff in Costa did not
support her fee application with “any affidavits from attorneys within the community
attesting to the reasonableness of the [requested] hourly rates.” Id. at 418.
For all of the foregoing reasons, the Court approves the hourly rates requested
by Movants. The Court also approves the total number of hours claimed by Movants.
(Hale 668.2 hours; Hetherington 188.1 hours; Feldman 140 hours; DeJung 32.5 hours;
Gallipeau 82.9 hours; Perkins 192.1 hours; and Somers 26.7 hours). As already
discussed, Movants have submitted detailed time records, and Defendant has not
Defendant are either distinguishable or fail to support the point for which Defendant has cited them.
identified a single improper entry, nor does the Court find any. To the contrary, the
Court notes, with approval, that Movants had Hale perform the bulk of the work on this
action, since he was the attorney with the lowest billing rate, and only utilized the moreexpensive attorneys when their particular expertise was required. Similarly, Movants
have convincingly argued that they attempted to limit the number of hours spent on this
action in various ways, such as by offering to settle the action on numerous occasions.
Defendant’s objection to the number of hours billed, as discussed earlier, is
speculative and insufficient to overcome the detailed affidavits submitted by Plaintiffs’
counsel. Accordingly, the aspect of Defendant’s response, which requests a 10%
reduction in the number of hours billed, is denied.
Plaintiffs’ application [#52] for attorney’s fees and costs is granted. Plaintiffs are
awarded total fees and disbursements in the amount of $397,609.08.
Rochester, New York
June 22, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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