Project Vote/Voting for America, Inc. v. Long et al

Filing 99

OPINION AND ORDER - The court GRANTS Project Vote's Motion for Attorneys' Fees, and awards Project Vote $184,223.25 in attorneys' fees and $657.00 in costs. Signed by District Judge Rebecca Beach Smith and filed on 8/22/12. (jcow, )

FILED
UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

AUG 2 2 2012

Norfolk Division

CLERK, U.S. DISTRICT COURT
NORcOLK. VA

PROJECT VOTE/VOTING FOR AMERICA, INC.,
Plaintiff,
CIVIL No.

v.

2:10cv75

ELISA LONG, in her Official Capacity
as General Registrar of Norfolk, Virginia,
and

DONALD PALMER, in his Official Capacity
as Secretary, State Board of Elections,
Defendants.

OPINION AND ORDER

The court lifted its stay of this case on July 20, 2012, which
stay had been issued by Order of August 1, 2011.

The court then

directed the parties to file responses concerning the Consent Order

entered by the court on August 10, 2011, staying consideration of

Project

Vote/Voting

for

America,

Inc.'s

("Project

Vote")

August 3, 2011, Motion To Recover Attorneys' Fees and Costs ("Motion
for Attorneys' Fees").

Project Vote filed its response ("Project

Vote's Response") on July 23, 2012, requesting that the court lift
the stay of its Motion for Attorneys'

Fees and award a total of

$349,317.05 in fees and $657.00 in costs.

Motion for Extension of Time,

Defendants filed a Joint

also on July 23, 2012,

requesting

additional time to respond to Project Vote's motion.

The court

lifted its stay of the Motion for Attorney's Fees on July 26, 2012,
and set new deadlines for Defendants' response and any reply by

Project Vote.

Defendants filed their Response in Opposition on

August 3, 2012, and Project Vote filed its Reply on August 10, 2012.
The matter is now ripe for review.

I.

Factual and Procedural History

The relevant factual history is set forth in detail in the

court's October 29, 2010, Opinion, and need not be repeated in full

herein.

See Project Vote/Voting for Am., Inc. v. Long, 752 F. Supp.

2d 697, 698-701 (E.D. Va. 2010) .

In brief review, Project Vote and

Advancement Project, a national civil and voting rights organization

with which Project Vote works, sought to inspect and obtain copies
of

the completed voter registration applications of any
individual who timely submitted an application at any time
from January 1, 2008, through October 31, 2008, who was
not registered to vote in time for the November 4, 2008
general election, and also other documents, such as
documents identifying the reasons the applications were
rejected.

Compl. U 15 (internal quotation marks omitted).

This request was

made pursuant to the National Voter Registration Act's

Public

Disclosure

Provision,

42

U.S.C.

("NVRA")

§ 1973gg-6(i)(1)

(hereinafter referred to as the "Public Disclosure Provision") .

The

Defendants did not permit Project Vote to inspect or copy these
records

(collectively referred to as

the

"Requested Records"),

purportedly

because

Virginia

Code

§ 24.2-444

prohibited

their

disclosure, Compl. H 17, and the Public Disclosure Provision did not
require that they be made available for inspection and photocopying.
Id. H 22.
In the Complaint, Project Vote alleged that the NVRA's Public
Disclosure

Provision

required

that

the

Requested

Records

be

available to the public for inspection because they are records

"'concerning the implementation of programs or activities conducted

for the purpose of ensuring the accuracy and currency of official

lists

of

eligible

§ 1973gg-6(i)(1)).

voters.'"

Id^

H

29

(quoting

42

U.S.C.

Additionally, to the extent that the Virginia

statute limited the availability of the Requested Records to the

public for inspection and photocopying, Project Vote argued it was

superseded by the NVRA, pursuant to the Supremacy Clause of the United
States Constitution.

Therefore, Project Vote asked the court to:

1) declare that Defendants were in violation of the NVRA; 2) declare

that the NVRA preempted Virginia Code § 24.2-444, and any other

Virginia law or regulation stating the same; 3) " [p] ermanently enjoin
Defendants from refusing to permit access to any requesting party

for copy and/or inspection of voter registration applications and
related records, as sought by Project Vote in this matter"; and 4)

award Project Vote the costs incurred in pursuing this action, as
authorized by 42 U.S.C. § 1973gg-9(c).

Id^ at 11.

The court issued its Opinion granting in part Project Vote's

Motion

for

Summary

Judgment

on

July

20,

2011.

See

Project

Vote/Voting for Am., Inc. v. Long, 813 F. Supp. 2d 738 (E.D. Va. 2011) .
The court found "that the NVRA's Public Disclosure Provision,

42

U.S.C. § 1973gg-6(i)(1), grants the plaintiff access to completed

voter registration applications with the voters' SSNs redacted for
inspection and photocopying."

permanent

injunction

Id. at 743.

requiring

registration applications,

disclosure

The court issued a

of

completed

voter

but denied Project Vote's Motion for

Summary Judgment insofar as Project Vote requested retrospective
relief.

Id.

at

744-45.

The

court

stayed

its

judgment

on

August 1, 2011, pending the outcome of Defendant's appeal of its
decision.

the

On June 15, 2012, the United States Court of Appeals for

Fourth Circuit affirmed this court's opinion.

See Project

Vote/Voting for Am., Inc. v. Long, 682 F.3d 331 (4th Cir. 2012) .

The

Fourth Circuit's mandate issued on July 9, 2012.
II.

Legal Standards

Pursuant to 42 U.S.C. § 1973gg-9(c), " [i] n a civil action under
this section the court may allow the prevailing party (other than
the United States) reasonable attorney fees, including litigation

expenses, and costs."

Courts apply the same standards applicable

to other federal civil rights fee shifting statutes when considering
an award under this section.

See, e.g., Project Vote v. Blackwell,

No. I:06cvl628, 2009 U.S. Dist. LEXIS 34571, at *15 & n.7 (N.D. Ohio
Mar.

31,

Bush,

2009); Nat'l Coalition for Students with Disabilities v.

173

F. Supp.

2d 1272,

1276

(N.D.

Fl.

2001).

As

such,

a

prevailing plaintiff "should ordinarily recover an attorney's fee
unless special circumstances would render such an award unjust."
Hensley v. Eckerhart,

461 U.S. 424, 429

No. 94-1011, at 4 (1976)).

(1983)

(quoting S.

Rep.

The party requesting a fee bears the

burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.

Id. at 437.

The decision to award attorneys' fees, and the extent of those
fees,

"rests, of course,

within the sound discretion of the trial

judge."

Guidry v. Clare, 442 F. Supp. 2d 282, 294 (E.D. Va. 2006)

(Ellis,

J.)

(internal

quotation

omitted).

In

determining

a

reasonable attorneys' fee, the proper first step is to calculate the
lodestar amount, which results from multiplying "the number of hours
reasonably expended on the litigation times a reasonable hourly
rate."

Pennsylvania v. Del. Valley Citizens' Council for Clean Air,

478 U.S. 546, 564 (1986)

(1984)) .

(quoting Blum v. Stenson, 465 U.S. 886, 888

When making this calculation, the court must exclude any

hours that are "excessive, redundant, or otherwise unnecessary," as
such hours are not reasonably expended on the litigation.
461 U.S. at 434.

Hensley,

This process requires the use of the same "billing

judgment" that guides a lawyer in private practice in billing his
client.

A

Id.

properly calculated lodestar figure

reasonable fee.
478 U.S.

See Del. Valley Citizens'

at 565.

However,

is

presumed to

be a

Council for Clean Air,

the court's discretion to award fees

necessarily "encompasses the ability to depart from the lodestar in
appropriate circumstances."
626,

629

(4th Cir.

1995).

Carroll v. Wolpoff & Abramson, 53 F.3d
The court may adjust a fee upward or

downward from the lodestar based on the

in Johnson v. Georgia Highway

twelve

factors

Express, Inc., 488 F.2d 714, 717-19

(5th Cir. 1974),1 as well as other considerations.
at

identified

Hensley, 461 U.S.

434.

III. Analysis

Project Vote seeks an award of attorneys' fees in the amount

of $349,317.05 and costs and expenses in the amount of $657.00.
Project Vote' s Resp. 4 .

See

Defendants object to many aspects of Project

Vote's request, but their arguments can be summarized into three main

1
The twelve factors identified in Johnson are as follows: (1)
the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case;
is fixed or contingent;

(5) the customary fee; (6) whether the fee
(7) time limitations imposed by the client

or

(8)

the

circumstances;

the

amount

involved

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 cases.

Johnson,

488 F.2d at 717-19.

contentions:

(1)

reasonable in

the hourly rates cited by Project Vote are not

the

relevant legal

community;

(2)

Project Vote's

request contains unreasonable or duplicative fee requests; and (3)
Project

Vote's

documentation

is

insufficient

for

the

court

to

ascertain the number of hours reasonable expended on the litigation.
See Resp. Opp'n 2-15.
in this case,

Defendants do not object to an award of fees

nor do they contest whether Project Vote was the

prevailing party in the litigation.

As such, an award of attorneys'

fees and expenses is appropriate in this case.

The court will

determine the amount of the award after examining each of Defendants'

objections to Project Vote's proposed lodestar calculation in turn.
A.

Reasonable Hourly Rate

In Project Vote's Response,
Memorandum of

Law in

as well as its August 3,

Support of

Plaintiff's

Motion

to

2011,

Recover

Attorneys' Fees ("Memorandum in Support"), Project Vote argues that
the

Laffey

Matrix,

which

reports

prevailing

market

rates

for

attorneys in Washington, D.C., provides a guideline for reasonable
attorneys' fees in this case.
9-11.

In contrast,

See Project Vote's Resp. 4; Mem. Supp.

Defendants argue that Project Vote has not

produced sufficient evidence in support of its fee request, and that
a reasonable hourly rate should be calculated by looking at the local
legal market, rather than the Laffey Matrix.

See Resp. Opp'n 4-9.

The hourly rate
reasonable.

requested by the prevailing party must be

See Rum Creek Coal Sales,

169, 175 (4th Cir. 1994)

Inc., v. Caperton,

31 F.3d

(citing Hensley, 461 U.S. at 433) .

Courts

ordinarily look to the "prevailing market rates" charged by lawyers
of similar capabilities and experience "in the relevant community."
Blum,

465 U.S.

at 895-96.

Prevailing parties bear the burden of

demonstrating that their requests fall within the prevailing market

rates,

which

can

be

accomplished

through

affidavits

from

disinterested counsel, evidence of awards in similar cases, or other

specific evidence that allows the court to determine "actual rates
which counsel can command in the market."

F.2d 1380,

1402

(4th Cir.

1987).

party alone are not sufficient.
277 (4th Cir. 1990).

Spell v. McDaniel,

824

Affidavits from the prevailing

See Plyler v. Evatt, 902 F.2d 273,

The relevant community for determining the

market rate is ordinarily the district where the case was tried.
Creek, 31 F.3d at 175.

However,

Rum

rates in other localities can be

considered "[i]n circumstances where it is reasonable to retain

attorneys from other communities."

Id.

Such circumstances are

present "when the complexity and specialized nature of a case may

mean

that

no

available locally,

attorney,
and

the

with

the

party

choosing

elsewhere acted reasonably in

making

the

required

skills,

is

the

attorney

from

choice."

Id.

179

at

(quoting National Wildlife Federation v. Hanson, 859 F.2d 313
Cir.

(4th

1988)).

Here, Project Vote submitted affidavits from its own attorneys,
as well as the Laffey Matrix, in support of its requested rates, which
are as

follows:

Table 1: Project Vote's Requested Hourly Rates
Hourly

Hourly

Rate

Rate

Rate

6/1/09 5/31/10

6/1/10 5/31/11

6/1/11 5/31/12

Partner

$569.00

$589.00

$609.00

Counsel

$686.00

$709.00

$734.00

Associate

$505.00

$522.00

$540.00

Associate

$285.00

$294.00

$374.00

Associate

$285.00

$294.00

$374.00

Paralegal

$155.00

$161.00

$166.00

Paralegal

$155.00

$161.00

$166.00

Attorney

$349.00

$361.00

$374.00

Attorney

Timekeeper

Hourly

$686.00

$709.00

$734.00

Position

Hallward-Driemeier, Doug
Ropes Sc Gray
Stewart, David
Ropes Sc Gray
Malone, Ryan
Ropes Sc Gray

Ripa, Augustine
Ropes & Gray
Idilbi, Jason
Ropes & Gray

Beauregard, Sheryl
Ropes Sc Gray

Antzoulatos, Sophia
Ropes Sc Gray
Sheffield, Yolanda

Project Vote
Mellor,

Brian

Project Vote

Project Vote Resp.

Ex.

Laffey v. Nw. Airlines,
is

E.

The Laffey Matrix was established in

Inc.,

572 F. Supp. 354 (D.D.C. 1983),

and

frequently used by the United States District Court for the

District of Columbia, and other courts, as a "useful starting point"

for

determining

the

prevailing

hourly

rates

for

attorneys

in

Washington, D.C.

Cir.

2008) .

See Grissom v. Mills Corp., 549 F.3d 313, 322 (4th

Notably,

Project

Vote

did

any

other

concerning hourly rates

Virginia.

Project Vote argued it "acted reasonably by retaining

in Washington,

D.C,

the

submit

affidavits

counsel

in

not

Eastern District

whose office was

of

located in close

proximity to theirs, who had specific civil rights and constitutional
law expertise,
impression."

and who were willing to take on a case of first
Mem. Supp. 10.

additional argument,

not

In its Reply, Project Vote made the

found in its

first

two filings or the

supporting declaration from its senior counsel, Brian Mellor, that
Project Vote's relationship with counsel,

Ropes & Gray,

cases factored into its choice to use the firm.

in other

See Reply 3.

In turn, Defendants argue that the Laffey Matrix is irrelevant

in assessing reasonable fees in this case, as the relevant legal
market is the Eastern District of Virginia, not Washington, D.C.
Resp. Opp'n 6-9.

See

Defendants argue that Project Vote has not made

any showing that competent counsel could not be retained for this
case from within the jurisdiction, or that choosing counsel from
Ropes Sc Gray in Washington, D.C., constituted a reasonable decision.
Further,

in addition to the affidavits of Defendants'

attorneys

generally concerning their roles/participation in the case,

see

Resp. Opp'n Exs. 2 & 3, Defendants provide specific evidence, through

an affidavit from trial attorney Robert L. Samuel, a partner based

10

in a local office of a large Virginia law firm with multiple offices
throughout the Eastern District of Virginia, and who himself has over
thirty

(30)

years

of

continuous

practice

in

the

courts

of

southeastern Virginia, including practice in this District and the

Fourth Circuit Court of Appeals.
Samuel

represents

that

the

See Resp. Opp'n Ex. 1 UH 2-4.2

prevailing market

rates

within

Mr.
the

District are as follows:

Table 2: Defendants'

Evidence of Reasonable Hourly Rates

Timekeeper
Hallward-Driemeier, Doug
Ropes & Gray
Stewart, David
Ropes & Gray
Malone, Ryan
Ropes & Gray

Ripa, Augustine
Ropes Sc Gray
Idilbi, Jason
Ropes & Gray
Sheffield, Yolanda

Position

Experience

Hourly Rate

Partner

18 years
(Partner for 2)

$275-300

Counsel

34 years
(Partner for 23)

$350-400

Associate

10 years

$275-300

Associate

4 years

$180-$225

Associate

4 years

$180-$225

Attorney

7 years

$180-$225

Attorney

29 years

$350-400

Project Vote
Mellor, Brian
Project Vote

See Resp. Opp'n Ex. 1 f 11.

2

Mr. Samuel's credentials are set forth in full in his affidavit.

See Resp. Opp'n Ex. 1 UK 2-6; infra note 3.
3
Mr. Samuel stated that his own hourly billing rate ranges
between $285.00 and $395.00 an hour. Resp. Opp'n Ex. 1 H 8. Neither
Mr.

Samuel's billing rates or his credentials are challenged by

Project Vote, nor is his opinion of the reasonable prevailing hourly
market rates within the Eastern District of Virginia, as set forth
in the table above.
See id. Ex. 1 f 11. Instead, Project Vote's
evidence and arguments are based on the grounds discussed supra at
11

In reviewing the evidence from the parties,

the court agrees

with Defendants that Project Vote's requested hourly rates do not
represent the prevailing market rate in the relevant community of
the Eastern District of Virginia.

Project Vote has failed to set

forth specific evidence that the hourly rates it seeks coincide with
local prevailing market rates; indeed,

Project Vote has submitted

no evidence at all on market rates within this District.

Project

Vote's

evidence

in

the

form

of

the

Further,

Laffey Matrix

is

insufficient as a reliable indicator of reasonable rates for a case

proceeding outside of Washington, D.C.
("Moreover,

the

Laffey

Matrix

is

Cf. Grissom, 54 9 F.3d at 323
also

insufficient

to

carry

Plaintiff's burden of proof [for a case in Reston, Virginia.]").4
The court' s determination thus turns on whether Project Vote' s choice
to retain counsel from outside the District was "reasonable," and

counsel should be awarded Washington, D.C, hourly rates.

Brian Mellor of Project Vote cited Ropes & Gray's proximity to
its

office,

constitutional

and

civil

rights

expertise,

and

willingness to take a case of first impression as the three reasons

9-10. No countervailing affidavits from any attorneys, outside of
those involved in this case, were submitted by Project Vote to support
the reasonable prevailing hourly market rates in this District. See
Project Vote Resp.

4

Ex.

E; supra at 9-10.

Reston, Virginia, is located in northern Virginia within the

Alexandria Division of this court,
contiguous with Washington, D.C
12

which

geographic

area

is

justifying the decision to retain counsel in Washington, D.C.
Supp.

10.

However,

Mem.

Project Vote has made no showing that it was

unable to find local counsel -- charging prevailing market rates -competent and willing to handle this case.

See Rum Creek, 31 F.3d

at 179; National Wildlife, 859 F.2d at 317.

Project Vote argues in

its Reply that such proof is not required by Rum Creek and National

Wildlife.
Vote,

in

See Reply 3.
applying

reasonableness

of

Such an argument misses the point; Project

for a

fee,

has

[its]

hourly

"the

rate

burden

with

to

make

specific

out

the

evidence."

Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219,
230 n.12 (4th Cir. 2009) .

The Fourth Circuit has confirmed that the

first step in assessing the reasonableness of retaining non-local
counsel is asking "if extrajurisdictional counsel rendered services
that were truly available in the visited market."

See id. at 229.

Project Vote's idle speculation that the case "was likely to be

politically distasteful for local counsel"

burden.

5

The

Reply 4.5

court

does not satisfy its

Regardless of the form of the proof, Project Vote

notes

that

the

Eastern

District

of

Virginia

encompasses a far broader range of localities other than the City
of Norfolk and the surrounding localities within the Norfolk Division
of the court.
Further, Project Vote's comparison of this case to
Rum Creek is misplaced.
Counsel in Rum Creek, based in Richmond,
Virginia, requested a "substantial portion of the fees" for appellate
work occurring before the Fourth Circuit in Richmond.
Rum Creek 31
F.3d at 179.
Moreover, the political considerations and the many
complex legal and constitutional issues in Rum Creek far exceeded
what was at issue in this case.
See id. at 172-74, 179 (discussing
13

has not produced any specific evidence from which the court can
conclude that local counsel with the requisite skills did not exist

within the Eastern District of Virginia, or if such counsel existed
that they could not, or would not, have taken the case.

Project Vote

has thus failed to make a satisfactory showing that the choice to
retain counsel

from outside

the District was

reasonable.

As such, the court finds that reasonable hourly rates for this
case are those charged by comparable counsel within the Eastern

District of Virginia.6

Because Project Vote has not put forward its

own evidence of rates within the District, or challenged Defendants'

evidence, the court adopts the following hourly rates, based on the

high-end7 of the ranges attested to by Mr. Samuel:

[CONTINUED ON PAGE 15]

the high profile nature of the suit, brought against a governor and
the police "in the middle of a wellpublicized [sic] coal miners'
strike") . The profile and proceedings of the case at bar simply do
not rise

to the level of Rum Creek.

6

See infra note

7.

7

The court finds, based on the evidence presented and its own

over thirty (30) years of practice and judicial experience within
the Eastern District of Virginia and the Fourth Circuit,

that the

ranges reflect market rates within the District, and additionally
that selection of the high-end comports with the Johnson factors.
See discussion infra Part

IV.

14

Table 3: Court's Finding of Reasonable Hourly Rates
Timekeeper
Hallward-Driemeier,
Ropes Sc Gray
Stewart, David
Ropes Sc Gray
Malone, Ryan
Ropes Sc Gray
Ripa, Augustine
Ropes Sc Gray
Idilbi, Jason
Ropes & Gray
Beauregard, Sheryl
Ropes Sc Gray

Position
Partner

$300

Counsel

$400

Associate

$300

Associate

$225

Associate

$225

Paralegal

$1008

Paralegal

$1009

Attorney

$225

Attorney

$400

Doug

Antzoulatos, Sophia
Ropes Sc Gray
Sheffield, Yolanda
Project Vote
Mellor, Brian

Project Vote

B.

Reasonable Hourly Rate

Unreasonable and Duplicative Fee Requests

Defendants next argue that Project Vote's fee request includes
numerous

entries

that

are

"excessive,

redundant,

or

otherwise

unnecessary," and represent overstaffing and duplicative billing.
See Resp. Opp'n 10 (quoting Hensley, 461 U.S. at 434) .

Defendants

argue that Project Vote's attorneys, who took the case pro bono,
"seem[] to have used this case as a training exercise, without proper

Mr. Samuel did not provide an estimate of prevailing market
rates for paralegals within the District, but the court finds that
$100 an hour, which represents a comparable reduction from Project
Vote's initial request and comports with the court's experience

concerning local hourly rates,

is appropriate.

See supra note 8
15

billing discretion as to the amount of hours expended."

Id. at 12.

Defendants note that only one attorney represented Defendants at

almost all proceedings.

Id. at 11 n.2; id. Ex. 2 1 5; id. Ex. 4 U 5.

Defendants also submit as evidence Mr. Samuel's affidavit, in which

he states "[t]here is a great deal of duplication and overstaffing"

in Project Vote's fee request.

Resp. Opp'n Ex. 1. H 12.

"The court must necessarily exclude any hours that are . . .
not reasonably expended on the litigation.
Suffolk,

322 F. Supp.

Circuit has]

2d 667,

670

(4th Cir.

Lilienthal v. City of
2004).

"[The Fourth

been sensitive to the need to avoid use of multiple

counsel for task where such use is not justified by the contributions
of each attorney."

Rum Creek, 31 F.3d at 180.

As such, the court

will "award fees for the time of one attorney when an issue does not
require the attention of multiple lawyers."

Life

Ins.

(Brinkema,

Co.,

179

F.

Supp.

2d

630,

Cox v. Reliance Std.

636

(E.D.

Va.

2001)

J.).

1.

Hearing on Motion to Dismiss

Chronologically, Defendant's first specific objection on this
ground is to Project Vote's billing related to the July 30, 2010,

hearing on Defendant's

Motion to

Dismiss,

found in Phase

Exhibit E to Project Vote's Motion for Attorney Fees.
Opp'n 11 n.2.

3 of

See Resp.

Project Vote had three attorneys attend the motion

16

hearing in Norfolk, Virginia.10

The court agrees with Defendants'

contention that billing for attendance by three attorneys, including
two similarly experienced associates, and the accompanying travel

required from counsel's Washington, D.C office, is duplicative and
does

not

practice.

represent

the

type

of

"billing

See Hensley, 461 U.S. at 434.

judgment"

of

private

The court expects that the

presence of two attorneys would have been more than sufficient to

handle oral argument;11 as such, the court reduces Augustine Ripa's
time by 14.50 hours in Phase 3.
2.

Rule 26(f) Telephonic Conference

Defendants next point to the time entries entered by three of

Project Vote's attorneys, found in Phase 4 of Exhibit E to Project
Vote's Motion for Attorney Fees, concerning participation in the

Federal Rule of Civil Procedure 26(f) Telephonic Conference.12

10

See

The entries related to travel to and from, and attendance at,

the motion hearing on July 30, 2010, are summed as follows: Augustine
Ripa billed 14 .5 hours; Jason Idilbi billed 14 hours; and Ryan Malone
billed 24 hours.
See Mot. Attorneys' Fees Ex. E at 11-12.
By
contrast, Defendants each had only one attorney attending all
hearings before this court. See Resp. Opp'n. Ex. 2 U 5; id. Ex. 3
14.
—

11

To be clear, with respect to this Part III.B.l, as well as with

respect to infra Part III.B.3, the court did not reduce any time spent
preparing in advance for the relevant hearings, but only time
expended on the days traveling and attending the hearings.
12
The
entries
related
to
attendance
of
the
call
on
November 22, 2010, are summed as follows: Augustine Ripa billed 1.75
hours; Jason Idilbi billed .75 hours; and Ryan Malone billed 3 hours,
17

Resp. Opp'n 11.

The court agrees with Defendants' contention that

the participation of three attorneys for such a routine pre-trial

matter is duplicative.

As such, the court reduces Augustine Ripa's

time by 1.75 hours and Jason Idilbi's time by 0.75 hours in Phase 4.
3.

Rule 16(b)

Scheduling Conference

Defendant's next object to Project Vote's billing related to

the Federal Rule of Civil Procedure 16(b)

See Resp. Opp'n 11.

Scheduling Conference.

Project Vote had three attorneys attend the

Rule 16(b) Conference in Norfolk, Virginia.13

Once again, the court

agrees with Defendants' contention that the participation of three
attorneys for such a routine,

administrative pre-trial matter is

duplicative, especially in light of the travel time required from
counsel's Washington,

D.C,

office.

As

such,

the court further

reduces Augustine Ripa's time by 21.50 hours and Jason Idilbi's time
by 20 hours in Phase 4.

including the call and other tasks.
E at 14-15.

See Mot. Attorneys' Fees Ex.

By contrast, Defendants each had only one attorney

participating in the Rule 26(f) Telephonic Conference.

See Resp.

Opp'n. Ex. 2 U 5; id. Ex. 3 1 4.

13

The entries related to travel to and from, and attendance at,

the Scheduling Conference on November 30, 2010, are summed as
follows: Augustine Ripa billed 21.50 hours; Jason Idilbi billed 20
hours; and Ryan Malone billed 21 hours. See Mot. Attorneys' Fees
Ex. E at 14-16. By contrast, Defendants each had only one attorney

participating in the Rule 16(b) Scheduling Conference.
Opp'n. Ex. 2 H 5; id. Ex. 3 U 4.

18

See Resp.

4.

Fourth Circuit Oral Argument

Defendant's final specific objection14 on the grounds of
duplicative

for

the

May 17, 2012, hearing and argument before the Fourth Circuit.

See

Resp.

billing

Opp'n 11

concerns

Sc n.2.

Project

Vote's

billing

Project Vote had two attorneys conduct

extensive preparation for oral arguments on appeal,

separate and

apart from counsel's work on the appellate briefing.15

Defendants'

again cite Mr. Samuel' s affidavit as evidence of the unreasonableness

of this preparation.

See Resp. Opp'n Ex. 1 f 12; see also id. H 3

(setting forth Mr. Samuel's appellate experience).16

Project Vote

in turn says such preparation by a junior associate is preferred,

and that the time sought is already discounted as it "is not seeking
fees for hours billed by first and second year associates who worked

14

Defendants do briefly mention the court's hearing on the Motion

for Summary Judgment and Status Conference, held on June 10, 2011;
however, the court does not find the attendance of two attorneys to
be excessive.
But see discussion infra Part III.B.5 (discussing
travel billing).

15

Augustine Ripa billed entries between April 17, 2012, and

May 17, 2012, related to preparation for, and attendance at, oral
argument before the Fourth Circuit, totaling 91.7 hours.
See

Project Vote's Resp. Ex. C at 3 .

Moreover, Ms. Ripa's April 17, 2012,

entry of 5 .0 hours related to preparation of the appeal also describes

administrative, and not legal, preparatory work.

Ryan Malone billed

entries between May 5, 2012, and May 17, 2012, totaling 76.8 hours.
See id.

16

at 4.

See supra note 2.

19

on the appeal."17

Reply 8.

Unlike Defendants' other specific

objections, the court does not think extensive preparation by two

attorneys for oral argument on appeal is categorically duplicative,
nor does the court find that Mr. Malone's preparation was excessive
in and of itself.

However,

the court agrees that the extent of

preparation of Ms. Ripa, "who did not conduct oral argument," exceeds
reasonableness and ordinary billing discretion.

reduces Augustine Ripa's time by 20 percent,

As such, the court

or 18.3 hours,

in

Phase 6.18
5.

Travel Billing

Defendants' final objection concerning the unreasonableness of

Project Vote's fee request relates to attorney travel.

Defendants

argue that the decision to charge "full rate for hours spent traveling
to and from Washington, D.C. . . . further demonstrates Plaintiff's
counsel's 'apparent absence of billing judgment.'"

Resp. Opp'n 12

(citing Burston v. Virginia, 595 F. Supp. 644, 651 (E.D. Va. 1984)

(Merhige, J.)).

Defendants cite several cases for the proposition

that "plaintiffs should not recover the same fee for travel time as
they recover for active legal work."
17
the

Rosenberger v. Rector and

The court has not, however, been provided any records showing
tasks or amount of

time Project Vote excluded from its fee

request.

18

Such a reduction credits Ms. Ripa with a comparable number of

preparatory hours as Mr. Malone, who actually conducted oral argument
before the Fourth Circuit.
20

Visitors of Univ. of Va. , No. 91-0036-C, 1996 U.S. Dist. LEXIS 13799,

at

*20

(W.D. Va.

Sept.

17,

1996) .

Defendants

argue

that

the

appropriate hourly rate for attorney travel time is one fifth of an
attorney' s regular billing rate, citing Sun Publ'g Co. v. Mecklenburg
News, Inc. , 594 F. Supp. 1512, 1520 (E.D. Va. 1984) .

Resp. Opp'n 13.

The court agrees with Defendants that counsel should not recover

their full market rate for travel from their offices in Washington,
D.C, to Norfolk and Richmond, and that failure to reduce this time

indicates a lack of billing judgment.
I:llcv0761,

2012

U.S.

Dist.

LEXIS

Cf. Sandbeck v. Reyes,

54068,

at

*8

n.2

(E.D.

No.
Va.

Apr. 17, 2012) (Anderson, J.) ("The reduction of the hourly rate for
travel time from $350.00 to $100.00 is indicative of plaintiff's good
faith efforts to apply for a reasonable amount of fees and costs.") .
The

court

does

not

necessarily

agree

with

Defendants

that

an

80 percent reduction from typical billing rates is always required;
however,

such an argument is academic in this case,

as the court

cannot determine with any accuracy the amount of time that Project
Vote's counsel actually spent traveling.
Project Vote,

legal tasks.

In the logs submitted by

almost all travel entries are combined with other,

See, e.g., Mot. Attorneys' Fees Ex. E at 11 (describing

a 6.0 hour July 29,

2010,

entry for Jason Idilbi as

"[f]inalize

preparation for departure to hearing, traveled to Norfolk; attended

team strategy discussions to prepare for hearing") ; id. Ex. E at 12

21

(describing a 14.50 hour entry on the same day for Ryan Malone as
"[t]ravel from Washington to Norfolk,

prepare for the hearing").

These generalized entries combining tasks are simply not sufficient,

proper documentation of travel time.

As a result, the court will

consider the billed travel time when assessing the reduction the
court applies due to insufficient documentation.
infra Part

See discussion

III.C

C.

Insufficient Documentation of Fees

Defendants' remaining objections to Project Vote's fee request
focus

on the

documentation provided

to

the

court.

Defendants

characterize Project Vote's evidence as providing the court with "no

way ... to accurately determine the reasonableness of the time
expended."

Resp. Opp'n 15.

Specifically,

Defendants,

and Mr.

Samuel in his affidavit, point to counsel's practice of "lumping"
multiple tasks into the same time entry.

U 12.

See id. at 14; id. Ex. 1

Project Vote, in turn, argues that "block billing" is not

prohibited by binding authority, and that the provided entries are
sufficiently specific for the court.

Reply 8.

While perhaps "block billing" is not prohibited, it simply does
not provide the court with a sufficient breakdown to meet Project
Vote's burden to support its fee request in specific instances.
"Inadequate documentation includes the practice of grouping,

'lumping,'

several tasks together under a single entry,
22

or

without

specifying the amount of

time spent on each particular task."

Guidry, 442 F. Supp. 2d at 294.

Courts may reduce a fee award when

"lumping" prevents an accurate assessment of the reasonableness of
the fee request by either identifying hours that are not sufficiently

documented or "by reducing the overall fee award by a fixed percentage
or amount based on the trial court's familiarity with the case, its

complexity, and the counsel involved."
not whether the

See id.

Thus, the issue is

court classifies Project Vote's

demonstrating either

"lumping"

or

timekeeping as

"block billing,"

but

whether

Project Vote has satisfied its burden of providing the court with
evidence from which the court can assess the reasonableness of the

time requests.

In reviewing the time logs, the court did not find a single
instance in which a timekeeper recorded multiple entries for a single

day; instead, only the total amount of time for each day is reported,
with no breakdown of how that time was spent among often as many as
four or five distinct tasks.

See, e.g., Mot. Attorneys' Fees Ex. E

at 15 (November 22, 2010, entry for Ryan Malone:

"Attend 26(f)

conference; begin plan for summary judgment motion; research local

rules and privacy issues; meet with team regarding strategy.") .

The

court's concern is heightened by the repeated practice of multiple

23

attorneys reporting time for the same task.19

The court's role is

not to labor to dissect every individual entry to hypothesize if the
different tasks in the same entry could reasonably result in the
requested time.
the

resulting

Instead, in light of the inexact documentation and
inability

of

the

court

to

properly

assess

the

reasonableness of the time requested, as well the concerns about the
reasonableness of travel billing set forth supra in Part III.B.5,

the court will apply a fixed percentage reduction of 10 percent to
the

fee

award

in

this

case.

Such

reduction will

be

taken after

accounting for the specific hourly reductions the court discussed
supra in Parts III.B.l through III.B.4.
IV.

Johnson Factors

After arriving at the lodestar figure, the district court still
must

assess

"whether

that

figure

must

be

adjusted,

upward

or

downward, on the basis of the circumstances in the case, including
the Johnson factors."

Guidry, 442 F. Supp. 2d at 294-95.

The court

19
Compare Mot. Attorneys' Fees Ex. E at 3 (Jason Idilbi records
"[d]rafted first draft of complaint" on December 9, 2009), with id.
at 1 (Augustine Ripa records "draft and revise complaint" each day
from December 7-10, 2009).
Tasks within projects can obviously be
divided, but due to the lack of specificity in billing, the court
is unable to assess whether these and similar entries are a result

of efficient division,
or instead duplicative or otherwise
unreasonable.
The court notes this is just one example, and similar
overlapping entries are found for drafting of the Response to
Defendants' Motion to Dismiss, preparing for the hearing on the
Motion to Dismiss,

and other tasks.

24

See id.

Ex.

E.

will not belabor these factors20 in light of the lengthy analysis
above, which addressed, among others, the time and labor required

to litigate the suit and the customary fee for such services.
However, the remaining Johnson factors applicable in this case weigh
in favor of a fully compensatory award to Project Vote.

Courts

repeatedly emphasize that the result of the litigation is one of the

most important factors, see, e.g., Nigh v. Koons Buick Pontiac GMC,
Inc., 478 F.3d 183,

190 (4th Cir. 2007 ) (considering "the extent

of the relief obtained . . . particularly important when calculating
reasonable fees"),

and it is incontrovertible that Project Vote

prevailed and obtained a permanent injunction in the underlying suit.

Additionally, interpretation of the NRVA's requirement to disclose
voter registration forms was an issue of first impression,

weighs in favor of full compensation.

which

See Johnson, 488 F.2d at 718.

The court has taken into account these considerations and all of the

Johnson factors, and finds that the full fee requested by Project

Vote, after applying the adjustments to the reasonable hourly billing
rates and billing times the court detailed supra in Part III when

calculating the lodestar figure, is appropriate in this case.
The full details of the court's calculations adjusting Project
Vote' s requested attorneys' fee award are set out in Appendix A, which
is attached hereto and made a part of this Opinion and Order.

20

See supra note 1 (listing factors)
25

After

reducing the hourly rate, as detailed supra in Part III.A, and making
the adjustments to the billable time, as detailed supra in Parts III.B
and III.C,

the court FINDS

that a total attorneys'

fee award of

$184,223.25 is reasonable in this case.

V.

Project
expenses

Vote

are

also

requests

recoverable

§ 1973gg-9(c),

Costs

$657.00

under

the

in

costs.

statute,

see

Litigation
42

U.S.C.

and Defendants have noted no objection to Project

Vote's request.

The court agrees with Project Vote that its request

is "very limited," and finds that $657.00 in costs is reasonable in
this case.
VI.

For the

Conclusion

foregoing reasons,

the court GRANTS Project Vote's

Motion for Attorneys' Fees, and awards Project Vote $184,223.25 in
attorneys' fees and $657.00 in costs.

The Clerk SHALL forward a copy

of this Opinion and Order to counsel for the parties.
IT

IS

/S/
Rebecca Beach Smith
Chief

SO ORDERED.

United States District Judge

-ft£r

REBECCA BEACH SMITH
CHIEF UNITED

Norfolk, Virginia

August J}9, 2012

26

STATES

DISTRICT JUDGE

Appendix A: Court's Calculation of Attorneys' Fees

Total

Duplicative

Adjusted

Total

Reported

Timekeeper

Hours

Hours

After 10%

Ripa,

Project Vote
Mellor, Brian
Project Vote
Total:

Award

Fee

0

17.25

15.525

$300

$4,657.50

0.50

0

0.50

0.45

$400

$180.00

253.00

0

253.00

227.7

$300

$68,310.00

413.25

(56.05)

357.20

321.48

$225

$72,333.00

149.25

(20.75)

128.50

115.65

$225

$26,021.25

52.50

0

52.50

47.25

$100

$4,725.00

21.75

0

21.75

19.575

$100

$1,957.50

18.80

0

18.80

16.92

$225

$3,807.00

6.20

0

6.20

5.58

$400

$2,232.00

932.50

(76.80)

855.7

770.13

Antzoulatos, Sophia
Ropes Sc Gray
Sheffield, Yolanda

Total

Rate

17.25

Augustine

Ropes & Gray
Idilbi, Jason
Ropes & Gray
B eauregard, Shery1
Ropes Sc Gray

Hourly

Reduction

Hours

Hallward-Driemeier,
Doug Ropes & Gray
Stewart, David
Ropes & Gray
Malone, Ryan
Ropes & Gray

Hours

A-l

$184,223.25