Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al

Filing 381

OPINION AND ORDER: granting 340 Motion for Attorney Fees; granting 372 Motion for Attorney Fees. Having performed the required "lodestar analysis," having considered all of the Johnson factors. Barber, 577 F.2d at 226n.28, and having adjusted the lodestar figure to reflect the "degree of success achieved" by Plaintiff, the Court GRANTS Plaintiff's motion for attorney's fees and litigation expenses and Plaintiff's motion for supplemental attorney's fe es. ECF No. 340; ECF No. 372. After making a downward adjustment to the total hours requested by Plaintiff and adjusting for Plaintiff's overall success, the Court hereby AWARDS attorney's fees toPlaintiff in the amount of $493,721.72. Such total figure represents a fee of $461,873.02 to Sullivan Legal Group, Plaintiff's counsel, and a fee of $31,848.70 to Mr. Pearline, Plaintiff's co-counsel. Copy of Opinion and Order provided to all counsel of record. Signed by District Judge Mark S. Davis on 3/27/2017. (bgra)

FILED
tJNITED

STATES

DISTRICT

COtJRT

MAR 272017

EASTERN DISTRICT OF VIRGINIA

Norfolk Division
CLERK, U.S. DISTRICT COUKI
NORFni K. VA

SUMMER CRUMP,

Plaintiff,
Civil Action No.

V.

2:13cv707

UNITED STATES DEPT OF NAVY,

by and through RAY MABUS,
SECRETARY OF DEPT OP NAVY,
Defendant.

OPINION AND

This

matter

Plaintiff,

and

Summer

seeking

motions

is

are

before

Crump,

supplemental
filed

the

ORDER

Court

on

motions

seeking attorney's

attorney's

pursuant

to

29

fees,

fees,

ECF

U.S.C.

§

filed

by

ECF No.

340,

372.

Such

No.

794a(b},

and

are

predicated on Plaintiff's success in obtaining a jury verdict in
her

favor

Defendant,
a

and

the

Court's

subsequent

grant

United States Department of Navy

of

back

("the Navy"),

pay.

filed

responsive brief acknowledging that Plaintiff may be eligible

as a prevailing party to seek attorney's fees,
the Court

but arguing that

should nevertheless not award her any attorney's

due to her minimal recovery in the instant case.
For

the

reasons

attorney's

fees

discussed

below.

Plaintiff's

ECF No.
motion

fees

361.

seeking

and motion seeking supplemental attorney's

fees

are GRANTED,

but the amount of such award is less than Plaintiff

seeks.

I. Factual and Procedural Background

Plaintiff
hearing

suffers

loss,

and

from
has

bilateral
utilized

approximately fifteen years.
No.

368

Order

("Nov.

2,

ECF

omitted).

No.

After

became a

With

2016

30,

see

also

{"Sept.

obtaining

cochlear

Nov.

Order")

337

profound

2016

assistance

generally

able

to

of

hear

her
and

Sept.

LLC

Id.

In

providing

employed

the

purposes

of

of 1973.

these

Plaintiff,

determining

and

Op.

citations

implants.

Plaintiff

Nov.

cochlear
speak

2016

implants.

without

Order at

Plaintiff

further

2.

was

assistance.

LLC and TCMP Health

to begin providing physician
2010 at the Navy's Sewells

contract between TCA and the Navy.

services,
as

2016

8,

ECF

cochlear

such

(collectively "TCA")

pursuant to a

Order 2,

(internal

extender services on or about June 3,

Point Clinic,

for

Op.")

Plaintiff was hired by TCoombs & Associates,
Services,

implants

2016 Mem.

licensed physician assistant.

the

sensorineural

this

TCA
Court

liability under

I ^ (citing Sept. 22,

and

the

Navy

previously

the

jointly

found,

for

Rehabilitation Act

2015 Op. and Order,

ECF No. 183

("Sept. 2015 Op.")).

^ These

facts

are

essentially a

re-statement

Court's Memorandum Order of November 30,

2016.

of

those

ECF No.

368.

summarized

in

the

Plaintiff

left

her

position

at

Sewells

Point

Clinic,

on

unpaid leave under the Family and Medical Leave Act {"FMIjA")i to
have

cochlear implant

revision

surgery on or about April

26,

2011, after she began experiencing significant hearing deficits.
Id.

{citing Sept.

2016 Op.

at 4).

As of July 2011,

Plaintiff's

full hearing capabilities had not yet returned.

W.

therefore

successful

returning
noise

requested

to

levels

work

an

at

Sewells

and use

teletype service)

accommodation

of

a

Point

video

to

be

Clinic,

Plaintiff

including

relay service

reduced

(rather

for communication on the telephone.

in

than a

W. at 3.

At the most basic level of description, with a teletype service,
also

referred to

communications

as

a

TTY,

assistant

a

hearing

("CA")

who

impaired person calls

then

calls

the

a

recipient,

and communications are typed by the hearing impaired person and
spoken

by

the

communications

CA.

With

between

a

video

the

relay

hearing

service

interpreter are signed, using American Sign Language
way of a video monitor,

the

person

impaired

("VRS")/

and

("ASL"), by

and the hearing impaired person can use

her own voice and utilize any residual hearing capacity to hear
the voice of the hearing person.
TTY,
June

Plaintiff sought a VRS,

not a

She began seeking such accommodation and return to work in
2011.

M.

Plaintiff

believed

been approved by the

that

Navy

her

request

in August

2011,

for

a

but

videophone

had

also understood

she

could

not

installed.

return

Id.

Agreed Ex.

involving

300,

55,

As

Navy.

for

Id.

contended

relayed

in

at

and

4

was

videophone

in

the

had

been

ECF No.

22-23,

334;

Trial Tr.

of

7,

numerous

and

not

2011,

(citing
it

of

because

October

October

through

one

332;

compatibility

accommodation

that

Plaintiff,

such

lack

Court's

challenges

of

accomplished

ECF No.

effective
by

October

September

8,

2016

after Plaintiff communicated with TCA and the

August

accommodation,
requests

But,

explained

Opinion and Order,
between

until

ECF No.

installation

Id.

Navy

308,

30).

technology

communication,
2011.

work

(citing Excerpts Trial Tr.

Excerpts Trial Tr.

358;

to

on

TCA,

these

a

form

that

offers,

Navy's Opening Br.

6-7,

Op.

at

her

to

her

6-7).

December

involving

ECF No.

for

submitted

again

request

the

the

Navy

offers

16,

to

2011,

Virginia

to Plaintiff.

348).

by

The

accommodation

on

Service that works with TTY phones,

her

provided

2016

several

and

about

Plaintiff

Sept.

relayed

2011

Id.

TCA

Relay
(citing

The Navy contended that

this was an offer of TTY at the Military Acute Care Department
("MACD")

clinic,

Plaintiff
email

and

responded

from

TCA

was

that

by
not

it

was

asserting
a

formal

a

reasonable

that

the

accommodation.

December

accommodation

offer

16,

2011

because

it

did not comply with Navy procedures and i t did not come from an

authorized decision-maker.
ECF

No.

359).

Moreover,

Id.

(citing Pl.'s Resp.

Plaintiff

contended

that

Br.
she

15-16,
still

believed in December 2011

that

2011 to provide her with a VRS,
such arrangements,

that

the Navy had agreed in August
that the Navy was trying to make

the December

16,

2011

email

was

not

a

withdrawal of that August 2011 offer, and that the Navy just had
not finalized the provision of the offered VRS.

contended that a

reasonable juror could conclude that the Navy

did not offer TTY until June 15,

May 24,

2012

offering a

official

TTY,

accommodation
requested.
if

the

offer,

Plaintiff

2012,

when Plaintiff received a

letter from an authorized decision-maker

and also offering as an additional/alternative

a

specific

M.

at

December

5.

16,

i t was not a

model

of

Moreover,
2011

videophone

she

had

earlier

Plaintiff contended that even

email

was

an

actual

reasonable accommodation.

accommodation

Id.

After further communication from December 2011 through July

2012,
was

and with no notification
installed

July 27,
August

2012,
9,

began to

functional.

an agreed-upon videophone

Plaintiff

resigned

from

TCA

on

and communicated her resignation to the Navy on

2012,

accommodation.
was unable

and

that

Id.

formally

rejecting

{citing Sept.

the

2016 Op.

to return to work at Sewells

seek work elsewhere.

Sept.

Navy's

at 10) .

Point

2016 Op.

time that she communicated her resignation to TCA,

of

While she

Clinic,

at

offer

11.

Plaintiff

At

the

Plaintiff had

already begun working at other medical facilities and continued
doing so after her resignation from TCA.

Id. at 11-15.

On
and

December

the

Navy

accommodate

Plaintiff
lost

sought

compel

to

provide

morning

that

and

the

for

loss

requested

issues

to

pain

of

damages,

trial

injunctive

future

of

life.

relief

to

began,

Nov.

and

Id.

February

16,

2016 Order at 5

to

[and]

reasonable

fees

interest.

1.

suffering,

enjoyment

defendant/ joint employer TCA settled with Plaintiff,
Navy as the sole defendant.

No.

wages,
and

attorney's

TCA

reasonably

ECF

lost

related

post-judgement

jury

failure

against

"more responsive processes,

on

punitive

pre-judgment

and

suit

Compl.,

emotional

also

institute

training

alleged

damages

anguish,

Plaintiff

the Navy to

brought

disability.

benefits,

mental

accommodations,"
and

their

compensatory

and

15.

Plaintiff

upon

Plaintiff's

earnings

at

2013,

based

inconvenience,
Id.

19,

costs,
On

the

2016,

co-

leaving the

(citing Trial

Min., ECF No. 304; Stipulation of Dismissal, ECF No. 18).
Following
verdict

a

two-week

in Plaintiff's

provide

Plaintiff

a

jury

favor,

trial,

finding

reasonable

the

conclusion

of

that

jury

the

Verdict Form,

trial,

returned

the Navy failed

accommodation,

Plaintiff no compensatory damages.

Following

the

the

but

to

awarded

ECF No.

Court

a

314.

heard

additional evidence on Plaintiff's request for equitable relief.

On September 8,
fully briefed,

2016,
the

after the

Court

issue of equitable relief was

issued an Opinion and Order awarding

back pay damages to Plaintiff in the amount of $4 0,842.42 plus

pre-judgment and post-judgment interest.
(internal citations omitted).
Court

338.
ECF

entered the

jury's verdict,

same day,

J.

Plaintiff thereafter filed a
No.

340,

and,

following

the

in a

a

motion

for

at 80

supplemental

id.

Civ.

at

81,

Case,

and

ECF No.

motion for attorney's fees,

Court's

motion for judgment as a matter of law,
filed

2016 Op.

The Court requested the Clerk of

to enter judgment on the

judgment was

Sept.

ruling
ECF No.

attorney's

on

the

3 68,

fees,

Navy's

Plaintiff

ECF No.

372.

Having been fully briefed, this issue is ripe for review.
II. Standard for Attorney's Fee Award
A.

Traditionally,
lawsuit

bears

Entitlement to Fee Award

under the

its

own

"American Rule,"

attorney's

explicitly authorizes otherwise.
424,
the

429

(1983).

Hensley v.

The instant civil

Rehabilitation

Act

of

fees

1973,

seeking to remedy an alleged failure

Plaintiff's
authorized

medical
courts

to

disability.
award

unless

a

statute

Eckerhart,

461 U.S.

case was

29

U.S.C.

filed pursuant to
§

791,

reasonable

H

1.

in this case,

(holding that a
least

some

Farrar v.

Hobby,

"prevailing party"

relief

on

the

merits
7

sag.,

attorney's

Congress
fees

see 29 U.S.C.

and it is undisputed that Plaintiff qualifies as a
party"

efc

to reasonably accommodate

Compl.

"prevailing party" under this statute,

each party in a

506 U.S.

103,

to

the

§ 794a(b),
"prevailing
111

(1992)

is one who has obtained "at
of

his

claim"

such

that

the

legal

relationship

between

the

parties

has

changed);^

Def.'s

Resp. Br. 6, ECF No. 361 ("The Navy does not dispute Plaintiff's
formal

status

as

a

prevailing

party.").

Because

Plaintiff

qualifies for reasonable attorney's fees as a prevailing party,
the Court must determine what a
in this case.
B.

29 U.S.C.

§

"reasonable attorney's fee"

is

794a.

Calculation of

"Reasonable"

The Fourth Circuit has outlined a

Pee Award

three step framework for

calculating a reasonable attorney's fee:

First, the court must "determine the lodestar figure
by multiplying the number of reasonable hours expended
times a reasonable rate,"
Servs., LLC, 560 F.3d 235,
ascertain

what

is

Robinson v. Equifax Info.
243 (4th Cir. 2009).
To

reasonable

in

terms

of

hours

expended and the rate charged, the court is bound to
apply the factors set forth in Johnson v. Georgia
Highway Express Inc., 488 F.2d 714, 717-19 {5th Cir.
1974).
Id. at 243-44.
Next, the court must "subtract

fees for hours spent on unsuccessful claims unrelated
to successful ones."
Id. at 244.
Finally, the court
should award "some percentage of the remaining amount,
depending on the degree of success enjoyed by the
plaintiff."
Id.
McAfee

(Jan.

v.

23,

Boczar,

2014)

738

F.3d

81,

88

(4th

Cir.

2013),

as

amended

(footnote omitted).

' The Court notes that many of the cases cited throughout this Opinion and
Order analyze statutes authorizing attorney's fees in contexts different from
the instant case.
However, the United States Supreme Court has noted that
the same legal standards for attorney's fee awards are "generally applicable
in all cases in which Congress has authorized an award of fees to a
'prevailing party.'"
Hensley, 461 U.S. at 455 n.7; Brinn v. Tidewater
Transp.

Dist.

Comm'n,

242

F.3d

227,

234

(4th

Cir.

2001)

{"Because

of

the

scarcity of case law interpreting . . . § 794a(b), courts faced with the task
have relied on the body of law interpreting federal civil rights attorney's
fees provisions.").
8

The calculation of a

lodestar figure is

"[t]he most useful

starting point for determining the amount of a

because

it

"provides

an

objective

basis

on

reasonable fee,"

which

to

make

an

initial estimate of the value of a lawyer's services."

Hensley,

461 U.S.

at 433;

559 U.S.

542,

(2010)

551

guiding light of

see Perdue v.

proving

the

.

.

.

fee-shifting

attorney's

Winn,

own

jurisprudence")

(quotation

The fee applicant bears the burden

reasonableness

requested hourly rates,
the

ex rel.

(characterizing the lodestar calculation as "the

marks and citation omitted).

of

Kenny A.

of

the

hours

expended

which generally requires

affidavit

and

timesheets

and

the

submission of
as

well

as

"'satisfactory specific evidence of the prevailing market rates
in the relevant community for the type of work for which

attorney]

seeks an award.'"

F.3d 313,

321

273,

(4th Cir.

1990)).

determine

both

277

order

to

(4th Cir. 2008)

number of hours expended,
following twelve factors
(1)

a

Grissom v.

The Mills

(quoting Plyler v.
In evaluating
reasonable

rate

Corp.,

Evatt,

the
and

549

902 F.2d

submissions
a

[the

in

reasonable

the lodestar analysis is guided by the
(the "Johnson factors"):

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.

Barber

v.

Kimbrell's

1978)

(adopting

the

Inc.,

577

twelve

F.2d

216,

factors

226

n.28

identified

by

Circuit in Johnson v. Georgia Highway Express Inc.,
(1974));

cf.

objective

Perdue,

lodestar

approach outlined

559

U.S.

approach

at

is

in Johnson,

550-52

to

failing

Cir.

the

Fifth

488 F.2d 714

(explaining

superior

but

(4th

the

to hold

why

the

subjective
that

it

is

improper to be informed by the Johnson factors when performing a
lodestar

analysis).

Court of Appeals
be

guided

by

figure,

"to

already

been

factor(s)

precedent

of

the

United

States

for the Fourth Circuit requires this Court to

the
the

Because

Johnson
extent

factors

that

incorporated

should not

later

into
be

determining

of

any

in

the

the

Johnson

lodestar

considered a

the

lodestar

factors

analysis,"

second

time

has

such

to make

an upward or downward adjustment to the lodestar figure because
doing so would "inappropriately weigh" such factor.
F.3d a t

738

91.

The second step in the
the

McAfee,

Court

to

exclude

unsuccessful

claims

Robinson v.

Equifax

fee

fees

calculation procedure requires
for

counsel's

that are unrelated to

Info.

Servs.,

10

LLC,

the

560

time

spent

successful

F.3d

235,

on

claims.

244

(4th

Cir,

2009) ;

see

Hensley,

461

U.S.

at

435

("The

congressional

intent to limit awards to prevailing parties requires that .
[unrelated claims based on different

facts

and legal

.

.

theories]

be treated as if they had been raised in separate lawsuits,

and

therefore no fee may be awarded for services on the unsuccessful

claim[s].").

The

Supreme

Court

has

recognized

that

" [i]t may

well be that cases involving such unrelated claims are unlikely

to

arise

with

great

frequency,"

because

"[m]any

civil

rights

cases will present only a single claim," and in other cases,
claims

related

"will

involve

legal

a

common

theories."

latter circumstance,

core

of

Hensley,

"[m]uch of

facts

461

U.S.

counsel's

generally to the litigation as a

whole,

or

will

at

time

be

435.
will

based on

In
be

the

such

devoted

making it difficult to

divide the hours expended on a claim-by-claim basis," with the
nature

of

the

lawsuit

precluding

series of discrete claims."

it

from

being

"viewed as

a

Id.

The third and final step,

after a

lodestar calculation has

been made and any unsuccessful efforts on unrelated claims have
been excluded,

requires the Court to award "'some percentage of

the remaining amount, depending on the degree of success enjoyed
by the plaintiff.'"
V.

City of

Aiken,

Grissom,
278

549 F.3d at 321

F.3d 333,

337

(4th Cir.

(quoting Johnson
2002)).

It

is

appropriate for the Court to reduce an award at this third step
of the analysis if "'the relief, however significant,
11

is limited

in

comparison

McAfee.

738

"What

the

level

of

the

F.3d at

scope

92

success

that

basis

461 U.S.

of

the

litigation

(quoting Hens ley,

court must ask

satisfactory
Hens ley,

to

is

whether

makes

for

the

making

at 434) .

a

expended

reasonable

hourly

cases

"where

nonfrivolous,

436.
it

on

rate

the

may

hours

fee

an

plaintiff's

at

439-40).

achieved a

reasonably

award.'"

litigation
be

whole,'"

'the plaintiff

Accordingly,

the

a

461 U.S.

expended

Id.

a

(quoting

when "a plaintiff has

achieved only partial or limited success,
reasonably

as

the product of hours
as

a

excessive

claims

whole

Hens ley,

a

even

amount,"

were

and raised in good faith."

times

in

interrelated,
461 U.S.

at

An attorney's fee award is therefore not driven by whether

was

reasonable

to

file

suit

or whether plaintiff's

litigated the case "with devotion and skill";

rather,

critical factor is the degree of success obtained."

counsel

"the most

Id.

I I I . Discussion
A. Entitlement to Fee Award

It

is

Def.'s Resp.

undisputed
Br.

6.

that
As a

Plaintiff

is

a

prevailing party.

over $1.2 million in attorney's fees:

12

"prevailing party."
Plaintiff requests

Sullivan Law Group - Litigation

$1,002,481.00

Sullivan Law Group - Fee Petition

$40,446.50

Crenshaw,

$16,227.00

Ware & Martin

David Pearline^

$64,968.75

Sullivan Law Group - Supplemental Motion

$76,895.50

David Pearline - Supplemental Motion

$15,875.00
$1,216,893.75

TOTAL

Pl.'s Opening Br.

2-3,

ECF No.

373.

"eligible for,
fees."

16-17,

ECF No.

341;

Pl.'s Suppl.

Status as a prevailing party makes Plaintiff

rather than entitled to,

Mercer v.

Opening Br.

Duke Univ.,

an award of attorney's

401 F.3d 199,

203

(4th Cir.

2005).

The Navy contends that Plaintiff only obtained "nominal damages"
because

she

failed

that she sought,

to

obtain

the

significant

monetary damages

and therefore she "is not entitled to an award

of attorney's fees."

Def.'s Resp. Br. 6.

A plaintiff obtains

nominal damages

when a

"trifling sum"

is awarded because "a legal injury is suffered but there is no
substantial loss or injury to be compensated."
Law

Dictionary

(10th

ed.

2014);

see

Farrar,

Damages, Black's
506

U.S.

at

112

(recognizing that nominal damages are awarded to vindicate legal
rights

while

substantial

actual

injury");

McAfee,

damages
738

F.3d

are
at

awarded
88

n.6

"to
("An

compensate
award

of

' There was an error in the calculation of David Pearline's fee request as
stated in Plaintiff's opening brief.

Pl.'s Reply Br. 3 n.l.
13

nominal damages signifies
not proved actual

App'x

291,

298

definition,
that
V.

[violation of a

loss.");

(4th

Cir.

W.

legal]
LP v.

Insulation,

2009)

("Nominal

right but has
Moore,

damages

316

do

F.

not,

by-

compensate the aggrieved party-they merely recognize

the aggrieved party's rights have been violated.");

City of

Charlotte,

N.C.,

93

F.3d 1241,

1246

Price

(4th Cir.

1996)

("A plaintiff's failure to prove compensatory damages results in

nominal

damages,

prevails

failure

but

to

typically

"recovers

prove

monetary relief,
all,"

because

an

the

the

one

only

dollar.").

nominal

essential

of

damages

element

only reasonable

recovery

When

only

fee

of

506

omitted);

U.S.

see

discretion,

.

at

also
.

.

attorney's fee.")
However,

merely
Justice
"[not]

de

29

U.S.C.

§

nominal

added)

794a

[a]

claim

for

damages

fee

at

indicates

or "de minimis."

(internal

{"[T]he

court,

citation
in

its

a reasonable

(emphasis added).
every award

minimis

or

purely

explained

in

of

nominal

"technical"
her

Farrar

damages

legal

represents

victory.

concurring

a

As

opinion,

all nominal damages awards are de minimis. Nominal relief

does not necessarily a

at 121

(emphasis

of

is usually no

may allow the prevailing party,

not

O'Connor

115

plaintiff

because

[the]

that the legal victory was purely "technical"
Farrar,

a

(J. O'Connor,

nominal victory make."

concurring).

Farrar,

506 U.S.

To identify when a party who

has obtained only a nominal damages award has nevertheless still
14

obtained
Justice

more

than

O'Connor

a

de

offered

minimis
three

or

technical

factors

for

legal

courts

victory.

to

consider:

(1)

the extent of relief sought compared to the relief obtained;

(2)

the significance of the legal issue on which the plaintiff

prevailed;
Id.

at

and

(3)

122.

the pxiblic purpose served by the litigation.

The

Fourth

Circuit

adopted

Justice

O'Connor's

three-factor test to distinguish "the usual nominal-damage case,
which

warrants

no

fee

award,

from

the

warrant an award of attorney's fees."

see

also Doe v.

cert,

denied,

(applying

which

Kidd,

No.

Justice

the

13,

2017)

to

evaluate

No.

F.

16-530,

WL

643,
69234

but

case

{4th Cir.

(U.S.

2017 WL 128503,

Jan.

test

received

that

does

401 F.3d at 204;

656

three-factor

prevailed

16-1140,

Mercer,

App'x

2017

O'Connor's

plaintiff

Kane v. Lewis,

656

unusual

to

no

9,

a

damage

at *5

2016),
2017)

case

in

award);

(4th Cir. Jan.

("The district court abused its discretion by failing
the

three

determining whether a

factors

this

court

has

adopted

for

nominal-damages award warrants attorney's

fees.").

Here,
awarded

the

attorney's

O'Connor's

"nominal
Def.'s

Navy

three

damages"

Resp.

recovery

was

Br.

contends
fees

factors

and
6-7.

"nominal"

that

Plaintiff

because
shows

achieved

and

application

that

Plaintiff

only

According

to

represented
15

should

a

de
the
a

of

Navy,

be

Justice

received

minimis

de

not

only

victory.

Plaintiff's

minimis

victory

because the "monetary recovery was between 3% and 4% of what she

sought

{$40,842.42 awarded versus almost $1.2 million initially

sought),"

Plaintiff

did

not

prevail

on

a

significant

issue, and the litigation achieved no public purpose.

6-14.

While

Plaintiff's
Court

it

is

that

the

jury returned a

Id. at 3,

verdict

favor but awarded her no compensatory damages,

awarded

pre-judgment

Plaintiff
and

back

pay

post-judgment

between February 26,

80.

true

legal

damages

interest,

2012 and July 27,

of
for

2012.

$40,842.42,
her
Sept.

lost

in
the

plus
wages

2016 Op.

at

Notwithstanding what Defendant characterizes as Plaintiff's

"relatively meager recovery," Def.'s Resp. Br. at 2, because the

Court's award of back pay was designed to compensate Plaintiff
for her lost wages as a result of the Navy's actions, Sept. 2016
Op.

at

award,

76,

Plaintiff obtained more

see Farrar,

506 U.S.

at 121

than a

mere nominal

damage

(plaintiff who requested $17

million and received $1 only received nominal damages); Mercer,
401

F.3d

McAfee,

a

at

202

($1

dollar

738 F.3d at 88 n.6

damages

amount,"

award

was

was

a

nominal

damage

award);

cf.

(rejecting defendant's argument that

nominal

when,

"though

small

in

dollar

the award nevertheless represented the entirety of the

plaintiff's out-of-pocket expenses).

As Plaintiff is a
an

award

of

nominal

prevailing party who obtained more than
damages,

the

16

Court

is

not

required

to

consider whether her legal victory was more than de minimis.*
Therefore,

the

Court

moves

on

to

the

issue

of

Plaintiff's

entitlement to reasonable attorney's fees.

See Farrar,

at

(noting

114

(internal quotation marks omitted)

plaintiff

is

entitled

to

attorney's

fees,

506 U.S.

that once a

"the degree

of

the

plaintiff's overall success goes to the reasonableness of a

fee

award").

* The Court notes that even if Plaintiff's damages award could be considered
"nominal," after application of Justice O'Connor's three-factor test, it is
apparent that Plaintiff achieved more than a de minimis legal victory in the
litigation and thus it would be appropriate to award Plaintiff attorney's
fees.
First, while Plaintiff received a substantially smaller monetary
recovery than she initially requested, her award of $40,842.42 in back pay
damages is not insignificant.
See McAfee, 738 P.3d at 84 (holding that,
under Mercer and Farrer,
an award of $100,000 in attorney's fees was
reasonable when the plaintiff recovered only $2,943.60 in damages).
Next,
Plaintiff prevailed on significant legal issues throughout the litigation,
such as the Court's summary judgment ruling that, based upon the facts before
it, there was a genuine issue of material fact regarding the reasonableness
of TTY as an accommodation in the factual circumstances of this case.
Sept.
2015 Op. Sc Order 113-14 ("Consequently, while a TTY or other non-video TRS
system might qualify as a
reasonable accommodation for hearing-impaired
individuals in most jobs . . . on the specific facts of this case, the Court
cannot find, as a matter of law, that a TTY or other non-video TRS system was
a reasonable accommodation to Plaintiff." {internal citations omitted)),- see
Heyer v. United States Bureau of Prisons, No. 15-6826, 2017 WL 715823, at *3

(4th Cir. Feb. 23, 2017) {"TTY does not permit real-time conversations, and
each conversation over a TTY device takes significantly longer than signed or
spoken conversations. .
.
. TTY is old technology that is fast becoming
obsolete.").
Moreover, the jury found that, based upon the evidence before
it, the Navy failed to provide Plaintiff a reasonable accommodation, Nov.
2016 Mem. Order 8, ECF No. 368, and the Court held that "a reasonable jury
could have concluded that,
on these facts,
an offer
reasonable accommodation for Plaintiff," id. at 16.

of

TTY

was

not

a

Finally, Plaintiff's victory served a public purpose in defining the
responsibilities of joint employers to offer reasonable accommodation, which
may be more than TTY,
to medical professionals in similar health care
facilities.
Thus, Justice O'Connor's three factors, as adopted by the Fourth
Circuit in Mercer, weigh in favor of finding that, even if Plaintiff's
recovery could be considered "nominal," it was not a de minimis or purely
technical legal victory.
Therefore, Plaintiff is entitled to a reasonable
attorney's fee—with her relative degree of success considered as part of any
adjustment to the lodestar figure.
17

B. Calculation of

"Reasonable"

Fee Award

1. Lodestar Analysis

The

first

determine

the

step

in

calculating

"lodestar"

figure

a

reasonable

"by multiplying

fee

reasonable hours expended times a reasonable rate."

F.3d at 88

to

number

the

is

of

McAfee,

738

(quoting Robinson, 560 F.3d at 243).
a. Reasonable Rate

As

fees

indicated

as

a

above.

Plaintiff

prevailing party who was

damages.

A party entitled to

the

of

burden

establishing

rates requested."
Cir.

to

1987).

the

is

Spell v.

market

the

reasonableness

McDaniel,

rates

in

(E.D.

2016)

v.

(1984)).

This

is

generally

from disinterested counsel,

or other specific
'actual

rates

market.'"

Supp.
14 02) .

evidence

which

Va.

the

hourly

1402

(4th

189 F.

Stenson,

accomplished

community.'"

Supp.

465

3d 588,

U.S.

"through

886,

596

895

affidavits

evidence of awards in similar cases,

that

counsel

710 (E.D.

"bears

of

relevant

allows

can

the

command

Project Vote/Voting for America,

2d 704,

fees

824 F.2d 1380,

the

Inc.,

Blum

than nominal

'to be calculated according

Dollar Tree Stores,

(quoting

attorney's

recover attorney's

LaFleur v.

Va.

to

awarded more

"The reasonable rate is

prevailing

entitled

2012)

court
in

to determine

the

[relevant]

Inc. v. Long,

(quoting Spell,

824

887 F.

F.2d at

"The relevant market for determining the prevailing rate

is ordinarily the community in which the court where the action
18

is prosecuted sits."
F.3d

169,

175

Rum Creek Coal Sales,

(4th

Cir.

submitted affidavits
hourly

rates

Opening Br.

they
Ex.

purport

3,

4,

Ex.

1,

Buckius Decl.,

has

submitted

Shoemaker Decl.,

both

be

ECF No.

ECF No.

ECF No.

affidavits

reasonable.

for

indicating

Pi.'s

Additionally,

attorney

31

have

the

PI.' s

Opening

341-4; with Def.'s Resp.

361-1.
each

parties

Compare

341-3;

their relevant work experience.

ECF No.

Br.

Plaintiff

and paralegal

that

See generally PI.' s

341.

Plaintiff
attorneys

to

Butler Decl.,

Ex.

Ex.,

Here,

from disinterested counsel

Br.

describes

1994).

Inc. v. Caperton,

who

requests
worked

on

the

following

the

case:

hourly

$400

for

rates

for

the

Ann Sullivan,

law

firm founding partner with thirty-nine years of experience; $315
for

Melissa

experience;

Picco,

$235

senior

associate

for Deborah Collins,

with

nineteen

years

of

mid-level associate with

six years of experience; and $375 for David Pearline, co-counsel

with thirty-seven years of experience.
requests

the

worked on the

following
case:

$100

hourly
for

rates

Plaintiff additionally
for

the

paralegals

Skylar Gallagher,

who

paralegal with

five years of experience; $125 for Angela Mastin, paralegal with
fifteen

years

of

experience;

and

19

$150

for

B.

Thomas

Reed,

attorney with over thirty-five years of experience but acting as

a paralegal for this case.®
Requested Rates

Name

Rate iboipsTED

Ann Sullivan

$ 400

Melissa Picco

$ 315

Deborah Collins

$ 235

David Pearline

$ 375

Angela Mastin (para)

$ 125

Skylar Gallagher (para)

$ 100

B. Thomas Reed (para)

$ 150

Plaintiff
Butler,

Jr.,

III,

in

offers

and a

support

a

declaration

Plaintiff

attorney

Harris

declaration by attorney James H.

of

the

reasonableness

Pl.'s Opening Br. Ex. 3-4.

rates

by

of

these

D.

Shoemaker,

fee

amounts.

Both attorneys agree that all of the

requests

are

reasonable

for

the

type

of

work

performed in light of each attorney's and paralegal's respective
amount

of

experience.

declaration
provided
Norfolk,

® Mr.

of

the

Id.

employment
following

Virginia:

as

In

law

response,

attorney

employment

the

Dean
law

$350/hour for partners,

Navy offers

the

T.

who

Buckius

market

rates

in

$250/hour for senior

Reed is a licensed attorney in the state of Virginia, but during the

period of time he worked on behalf of the Plaintiff he was not working as an

attorney,

but was instead performing work as a paralegal for the Plaintiff.

Shoemaker Decl.,

EOF No.

341-4,

at 4 n.l.
20

associates

{7-8

years

experience) ,

associates

(4-6

years

associates

(1-3

years

paralegals.

$225/hour

Buckius Decl. 1.

experience) ,
experience),

$200/hour
and

In determining the reasonable rates,

n.28.

First,

the

Court

evaluates

junior
for

Barber,

Johnson

577 F.2d at

factor

two,

the

and Johnson factor

the skill required to perform the legal services of the

various

attorneys

significant

while

and

expenditure

legal issues in a
and

for

the Court is required

novelty and difficulty of questions raised,

three,

mid-level

$110-125/hour

to consider the relevant Johnson factors.®
226

for

the

paralegals.
of

time

This

and

labor

case

required

involving

a

complex

niche area of employment discrimination law,

Court

will

make

appropriate

adjustments

to

the

time and labor expended,

the Court finds that the hourly rates

requested

are

by

Plaintiff

appropriate

for

the

novel

difficult questions raised in this specialized area of law.

the

Court

observed

above.

Plaintiff

vigorously

litigated

and
As

and

prevailed on significant legal issues throughout the litigation
that

addressed

significant

novel

skill.

and

These

difficult

issues

questions

included,

for

requiring

example,

the

Court's summary judgment ruling that the Navy and TCA were joint
employers, and that,

based upon the facts before it,

there was a

® While the Court considers the Johnson factors out of numeric order, the
Court does so for analytic clarity by evaluating factors together that
analyze closely related topics.
21

genuine

issue of

material

fact

regarding the

TTY as an accommodation in the
to the Court.
Indus.

(E.D.
of

Sept.

Carriers,

Va.

each

2014)

2015 Op.

Inc.,

No.

factual

reasonableness

of

circumstances presented

& Order 113-14; see Flame S.A.

2:13-CV-658,

2014

WL 7185199,

at

v.
*6

{authorizing the requested hourly rate because

attorney's

"skillful

and

proficient

handling"

of

the

legal issue).
Next,

the

opportunity
six,

costs

the

and

the case.

pressing

Johnson

the

litigation,

expectations

Johnson

factor

at

seven,

the

law

it

firm

is

a

without

small

significant

firm,

outset

time

firm's

rate

than

also

available

expected

time,

if

there
the

were
case

no

factor
of

the
of

to

this

thus

lost

progress

Navy's vigorous

litigation regarding

factual

presented

issues
than

expected

other

paying

by

and

the
cost

clients.
22

resources.

client

on

a

large case requiring much

taking on

such

a

case

necessarily

justifying a

opportunities.

more

quickly,

other cases in the Eastern District of Virginia,

represent

the

limitations

financial

representing

involved loss of other opportunities,

longer

four,

Johnson

the

the

contingent fee basis in what became a
of

factor

Plaintiff represents that the Sullivan Legal Group is

small

Because

in

considers

attorney's

litigation,

a

Court

the

case,
counsel

to

but due to the

took
the

Counsel

similar

significant
it

higher

legal

substantially

opportunity

Nevertheless,

and

despite

to
the

ultimate

length of

time between filing the

judgment,

the

imposed a

tight timeline for discovery and pretrial motions

this

case.

such

time

nature

Court

For a

notes

small

limitations,

of

the

case,

that

firm,
in

the

complaint and final

Court's

such as

light

of

likely meant

the
the

that

pretrial

order
in

Sullivan Law Group,
vigorously

this

case

litigated

almost

fully

occupied the resources of the firm at times.
Next,

the

Court evaluates

undesirability
Johnson

of

factor

the

case

eleven,

Johnson

within
the

factor

this

ten,

legal

nature

of

community,

the

and

professional

relationship between Plaintiff and her attorneys.
factor ten,

the asserted

Under Johnson

the Court considers Plaintiff's representation that

the case was undesirable because "it involved going against the

Navy in a

'Navy town'

[where]

of its larger employer,"
the

"perception

provide
inherent

rate

medical
in

undisputed

than

deaf

on

employees

Pl.'s

may

might

counsel

otherwise

be

relationship
had

a

not

Opening

such undesirable

professional
that

and because the case could perpetuate

services."

taking

higher

Plaintiff's

that

the community is very supportive

be

Br.

competent

21.

litigation

the

with

The

her

longstanding

risk

justifies

case.

to

a

Regarding

counsel,

relationship

it

is

with

Plaintiff beginning during the course of her efforts to seek a
reasonable

accommodation

before

suit

was

filed,

and

the

Court

perceived from Plaintiff's testimony that she felt strongly that
23

she

was

seeking

employment
principle

to

vindicate

disability
by a

an

important

discrimination

client

often

results

law.

principle

Such

in

devotion

in greater challenges

to
for

counsel in contingent fee cases.
The

Court

further

considers

Johnson

"customary hourly rate of compensation"
similar work,
{internal

Daly v.

Hill,

citations

and

five,

1077

{4th Cir.

Johnson

factor

attorney's hourly fee awards in similar cases, Grissom,
at 323

{evaluating the approved hourly rates

factor

five,

the

Court

for

1986)

twelve,

549 F.3d

in cited cases as

examples of "similar fee awards in like cases").
Johnson

the

charged to clients

790 F.2d 1071,

omitted),

factor

considered

In evaluating
the

affidavits

submitted by both parties regarding reasonable hourly rates for

the specific legal work in this
rates

typically

Plaintiff's
See

Rum

customary

market
skill
for

charged

attorneys

Creek
rate

to

and

Coal,

31

clients

their
F.3d

is

the

rate

based upon

the

rates

Navy has

noted that

at

175

similar

to

in

could

attorneys

and counsel's

at

least

that

one

attorney

is

work

similar

(determining

counsel

paid

customary hourly

that

command

of

by

cases.

in

the
the

"comparable

own typical

in similar circumstances").

based on an hourly rate
rate to clients,

for

paralegals

that

in similar circumstances"

"similar services

case and the

fees

Although the

seeking an award

is higher than his normal hourly

the Court again notes that a
24

reasonable hourly

rate

for

a

fee

Creek Coal,

F.3d

.

.

68,

.

petition

is

the

"relevant

31 F.3d at 175; Trimper v.

76

(4 th

holds

Cir.

that

1995)

("[T]he

market"

rate.

City of Norfolk,

great

the proper measure of

weight

fees

is

Rum

Va.,

of

the

58

law

the prevailing

market rate in the relevant market,

and not the rate charged by

the actual attorney in question.").

Recovery at the market rate

does

not

constitute

that

counsel

could

a

windfall,

command

if

but

merely

counsel

reflects

charged

for their services.

See JP ex rel.

Peterson v.

Hanover

F.

499,

Cty.,

641

Supp.

(authorizing an hourly rate

the

attorney's

relevant

2d

of

$300

experience

rate

market

the

the

rate

Sch.

(E.D.

516

Cty.

Bd.

Va.

2009)

based upon the market

instead

of

the

of

and

discounted

rate of $165 per hour that the attorney would have charged the

client);
a

Pearline Suppl. Decl.

normal

hourly

rate

that

is

1,

ECF No.

below

370-1

the

("I have chosen

market

middle class individuals can afford my services,
access

to

statute

justice

in

for

play.").

customary hourly

clients

when

there

Therefore,
charged

fees

the

clients

to

is

Court

so

that

which provides

no

has

for

rate

fee

shifting

considered

the

similar work and

compared i t to those hourly fees charged in this case.
In
market,

determining
under

the

Johnson

reasonable

factor

twelve

hourly rate awarded in similar cases.
V.

Dir.,

Office

of

Workers'

Comp.
25

rate
the

within
Court

the

relevant

considers

the

E. Associated Coal Corp.

Programs,

724

F.3d

561,

572

{4th

Cir.

2013)

{"[P]rior

prevailing market
contexts.").

rate

Because

fee

awards

that may be
the

constitute

considered

parties

have

evidence

in

of

a

fee-shifting

cited

to

so

few

employment law attorney fee cases from the Norfolk Division, the
Court

broadly

surveyed

the

attorney's

fee

awards

in

recent

employment law cases in the entire Eastern District of Virginia
and attorney's

fee

awards

in other

types

of

cases

within

the

Norfolk Division of the Eastern District of Virginia in order to

assist it in determining what an hourly attorney fee award would
be

for

a

similar

case

in

the

Norfolk

Division."'

Id.

at

572

'
Taylor v. Republic Servs., Inc., No. 1:12-CV-00523-GBL, 2014 WL 325169,
at *5 (E.D. Va. 2014) (authorizing in the Alexandria division of the Court
the following hourly rates for attorneys specializing in employment law:
$600 for attorney with twenty-nine years of experience; $475 for attorney
with fourteen years of experience, $400 for attorney with seventeen years of
experience, and $325 for attorney with three years of experience); Stewart v.
VCU Health Sys.

Auth. ,

No.

3:09CV738-HEH,

2012

WL 1120755,

at

*1

(E.D.

Va.

2012) , aff'd, 479 F. App'x 459 (4th Cir. 2012) (authorizing in the Richmond
division of the Court the following hourly rates for attorneys specializing
in employment law:
$470 for lead counsel with more than thirty years of
experience, $360 for attorney with more than ten years of experience, $295
for a
"highly efficient"
fifth-year associate,
$265 for a
third-year
associate, and $180 for a paralegal with more than ten years of experience in
federal litigation); Porter v. Elk Remodelincr, Inc., No. l:09-CV-446, 2010 WL
3395660, at *7 (E.D. Va. 2010) (authorizing in the Alexandria division of the
Court an hourly rate of $380 for an employment law attorney with sixteen
years of experience);

see also Carr v.

Rest Inn,

Inc.,

No.

2:14-CV-609,

2015

WL 5177600, at *4 (E.D. Va. 2015) (finding in the Norfolk division of the
Court that an hourly rate of $275 and $310 would be reasonable for a lawyer
who successfully resolved a Fair Labor Standards Act case); Two Men & A
Truck/Int'l,

Inc. v. A Mover Inc., 128 F. Supp. 3d 919, 927 (E.D. Va. 2015)
(approving in the Norfolk division of the Court in an intellectual property
case hourly rates of $600 for a partner, $400 for an associate, and $250 for
a paralegal); Lismont v. Alexander Binzel Corp., 47 F. Supp. 3d 443, 459
(E.D. Va. 2014) (authorizing in the Norfolk division of the Court in a patent
case hourly rates of $550 for an attorney who had practiced for thirty-eight
years but only $170 for a first year associate) ; Alexander v. Se. Wholesale
Corp., No. 2:13CV213, 2014 WL 1165844, at *11 (E.D. Va. 2014) (finding in the
Norfolk division of the Court an hourly rate of $390 to be reasonable for an
experienced litigator in consumer fraud cases);
JTH Tax, Inc. v. Grabert, 8
26

(" [W] e

have

held

that

' [e] vidence

of

fee

awards

in

comparable

cases is generally sufficient to establish the prevailing market

rates

in

the

Shipbuilding
Cir.

relevant

& Dry Dock

community.'"
Co.

v.

(quoting

Brown,

376

Newport

F.3d

245,

News

251

(4th

2004))) .

Finally,
evaluates

with

the

Plaintiff

respect

experience

relies

on

two

to

Johnson

and

recent

factor

reputation
cases

from

nine,

of
the

the

each

Court

attorney.

Norfolk

division

of the Court in support of her argument that the requested rates
are reasonable in light of each attorneys'

Prison Legal News v.
2015),

aff'd,

2017),

and

Justice,

Pl.'s

2:14CV577,

Opening

of

15-2197,

Virginia-Pilot

No.

Legal News,

years

No.

Stolle,

Br.

129 F.
2017

Supp.

WL

Media

Similar

with

{4th

Companies,

to

both Ms. Sullivan and Mr.

experience,

3d 390,

888234

2016 WL 4265742,

22-23.

years of experience,

at

the

LLC
*5

403
Cir.

of

$400

129 F.

Supp.

(E.D.

attorneys

6,

Dep't

of

Va.

2016).

in

Prison

Pearline have nearly forty

extensive

3d at 403

Mar.

v.

experience

in

legal subject area of employment discrimination law.
Legal News,

(E.D. Va.

the

niche

See Prison

(authorizing an hourly rate

for attorneys with forty-six and thirty-eight years of

experience

Division of

in

the

a

constitutional

law

case

from

Eastern District of Virginia).

F. Supp. 3d 731, 738 (E.D. Va.
Court an hourly rate of $225
acting as lead counsel).

the

Ms.

Norfolk

Picco has

2014) (finding in the Norfolk division of the
to be reasonable for a fifth-year associate

27

nineteen
than

years

the

years

of

Navy's

of

proffered

experience,

partner.

See

attorney

with

usually

experience,

id.

is

substantially

associate"

charging

a

years

hourly

of

rate

of

of

lower

of

Ms.

$255-265

7-8

than

a

for

an

$325

experience).

rate

higher

category

(authorizing an hourly rate

an

requesting $235,

amount

"senior

but

eighteen

charges

an

Collins

but

is

only

a market rate consistent with her experience as

established by Mr. Butler's and Mr. Shoemaker's declarations and

within

$10

of

the

Virginia-Pilot,

market

2016

of

at

$235

per hour

for

years

experience).

Finally,

paralegals

Mastin

reasonable

rates

proffered

declaration

stated

that

for

to $125.
Ms.

and

a

by

a

are

rate

1.

See

(authorizing

as

an attorney with five
rates

requested
or

Navy.

than

below

Mr.

paralegal

Plaintiff

lower

Buckius.

within

the

reasonable

Mr.

*5

the

Gallager

Buckius Decl.

Gallagher,

by

4265742,

a

$110

listed

WL

reasonable
of

rate

rate

by
the

Buckius's

hourly rate

is

is requesting $100

that

proffered

by

Mr.

Buckius, and $125 for Ms. Mastin, a paralegal with fifteen years
of

experience.

proffered

by

As

the

reasonable.

With

these

rates

Navy,

the

regard

to

are

Court

Mr.

within or below

finds

Reed,

Virginia attorney but not then practicing,

he

acted as

preparation

a

paralegal

based

upon

in this
his

who

rates

was

a

range

to

be

licensed

the Court notes that

case and assisted with trial

over
28

these

the

three

decades

of

trial

experience.

The Court finds it reasonable to use an experienced

lawyer acting as a paralegal and requesting only $150 per hour
to

accomplish

trial

preparation

tasks

attorney with a higher hourly rate.

instead

of

using

an

See Virginia-Pilot, 2016 WL

4265742, at *5 {finding as reasonable an hourly rate of $155 for
a paralegal with over 20 years of experience with the law firm).
Thus,

having considered all of the relevant Johnson factors,

the

Court

finds

are

that

the

hourly

rates

requested by

Plaintiff

reasonable.
b. Reasonable Hours

As

fees

as

indicated

a

above.

Plaintiff

prevailing party who was

damages.

Therefore,

the

Court

must

court

also

should

entitled

awarded more
next

attorney's

than nominal
the

hours

("The

exclude

calculation hours that were not

to

Hensley, 461 U.S. at 434

that were "reasonably expended."
district

is

determine

from

this

initial

'reasonably expended.'"

fee

(quoting

S. Rep. No. 94-1011, p. 6 (1976))).

Before
party

seeking

should

request

hours

unnecessary."
has

complied

make

a

that

an

"[c]ounsel

good

faith

are

excessive,

Hensley,
with

award,

this

461 U.S.

effort

29

the

exclude

redundant,

at 434.

obligation.

to

for

or

prevailing
from

a

fee

otherwise

Representing that it

Plaintiff

has

submitted

billing records® and seeks compensation for the following hours
expended in litigating this case:
Requested Hours
Hours
Name

Supplemental

Litigation

Fee Petition

Ann Sullivan

1,173 .2®

40.3

69.5

Melissa Picco

621.8"

12.2

49.1

Deborah Collins

631.3

46,1

115.8"

David Pearline

110.0

63.25

42.333

Angela Hastin (para)

598.7

77.2

73 .7

Skylar Gallagher (para)

747.3

B. Thomas Reed (para)

367.2

*

The

Navy

challenges

Plaintiff's

billing

invoices

as

Fee Petition

not

being

a

"contemporaneous" record because the date "9/22/2016" is listed in the upper
right hand corner of each billing invoice, which, according to the Navy,
indicates that the records have been "reconstructed."
Def.'s Resp. Br. 16;
Jones V. Southpeak Interactive Corp.,
(E.D. Va. 2014), a f f d, 777 F.3d 658

No. 3:12CV443, 2014 WL 2993443, at *12
{4th Cir. 2015) (" [R] econstructed time

entries are not acceptable because it is nigh onto impossible to reconstruct
old billing entries accurately.")
(internal quotations omitted).
Ms.
Sullivan's supplemental declaration explains that Sullivan Law Group "has a
written policy wherein employees are required to submit time records to me on
a daily basis. The records are reviewed prior to the authorization of payroll
on a weekly basis. . . . The dates on the invoices reflect the date the
statement was generated and does not reflect the date the time record was

created in the software."

Sullivan Supp.

Decl.

H 1,

EOF No.

370-2,

at 1.

Based upon Ms. Sullivan's declaration giving an explanation for the September
22, 2016 date on each invoice, the Court accepts the billing invoices as
contemporaneous records.

' Ms. Sullivan's hours are based upon 1,149.8 hours of litigation work billed
while employed by Sullivan Legal Group and 23.4 hours of work billed while
employed by the law firm of Crenshaw, Ware & Martin, PLC.

Ms. Picco's hours are based upon 600 hours of litigation work billed while
employed by the Sullivan Legal Group and 21.8 hours of work billed while
employed by the law firm of Crenshaw, Ware & Martin, PLC.

" Ms. Collins's hours are based upon 109.30 hours of work on the supplemental
motion for attorney's fees and 6.5 hours
supplemental motion for attorney's fees.
30

of

work

on

the

reply

to

the

Pl.'s Opening Br.

for Att'y Fees 16-17;

Suppl.

2;

Att'y Fees

ECF No.

376.

Pl.'s Reply Br.

Pl.'s Opening Br,

for Suppl.

for

Att'y Fees

7,

The Navy's primary criticism regarding Plaintiff's

calculation of the lodestar figure is its assertion that many of
the

hours

for

inadequately

which

Plaintiff

documented

and

seeks

are

compensation

duplicative

or

are

excessive.

Def.'s Resp. Br. 15-23.

In

analyzing

challenges

to

factor one,

226 n.28.

the

the

Plaintiff's

hours

fee

expended,

time and

request

the

and

labor expended.

Navy's

considers

Court

the

Johnson

Barber,

In order to properly determine

the

577

F.2d at

reasonable

time

and labor expended in light of the case's time restrictions,

the

Court

and

reduces

reduces

hours

hours

unnecessary."

that

where

are

documentation

"excessive,

redundant,

submitted

over

five

hundred

documenting the hours billed in this case.
Fees,

ECF No.

Opening Br.

Supp.

Suppl.

for

Mot

Plaintiff

"inadequate"

or

otherwise

See Hensley, 461 U.S. at 434.

Plaintiff

for

is

has

341;

Suppl.
Fees,

submitted

Reply Br.

Mot.
ECF

Mot.

for Fees,

No.

376.

sufficient

pages

of

exhibits

See Opening Br. Mot.

for

Fees,

ECF No,
The

evidence

ECF No.

373;

Court
to

370;

Reply Br.
finds

demonstrate

that
that

a fee award is appropriate as to all counsel who worked on this

31

case, as well as the three paralegals."

However,

a review of

the billing records submitted by Plaintiff reveals that,
the fact

that

Plaintiff

has

the records are generally thorough and detailed,
failed

to

demonstrate

hours are "reasonable."
various

tasks

attorneys

performed

Court

finds

certain

hours

despite

and

by

all

paralegals,

and

the

the

claimed

individuals,

as

explanation

documentation

that

was

duplication of efforts.

there

some

of

the

below,

the

provided

for

explained

inadequate

and

of

In considering the hours billed by the

such

that

that

was

degree

of

unnecessary

Hensley, 461 U.S. at 434.

i. Johnson Factor One: Vagueness and Billing Errors

In

analyzing

the

Johnson factor one,

time

billed

directly

for

related

time

and

expended

the vast majority of

attorney's
to

labor

the

fees

litigation,

according

Plaintiff's

appears

and reasonable.

However,

sufficient detail

Court

and

determine

reasonable

because

that
the

the

time

billing

entries

labor
were

requested

well-documented,

some billing entries do not provide
to

to

for

expended

vague,

the
were

contained

block entries, or contained mathematical errors.

" Work completed by paralegals is compensable as part of an attorney's fee
award.

Missouri v.

it

a

was

Jenkins by Agyei,

"self-evident

proposition

491 U.S.

that

the

274,

285

(1989)

'reasonable

(finding that

attorney's

provided for by statute should compensate the work of paralegals,
that of attorneys").
32

fee'

as well as

A number of Plaintiff's billing entries are vague and lack

sufficient facts to identify the nature of the work performed."
While such entries might be

sufficient on a

client bill where

the client is familiar with the progress of the work,

sufficient

for

an

attorney's

example, on April 3,

fee

request

such as

it is not

this.

2014, Ms. Sullivan billed for a

"conference

regarding response to statute of limitations defense."
341-1,

at

10.

However,

the

entry does

person involved in this conference.
Sullivan billed

0.9

hours

for

a

not

ECF No.

specify any other

On February 4,

"review

For

[of]

2015,

Navy's

Ms.

document

production," but the entry fails to indicate what documents were
reviewed.

Id.

at 14.

On February 3,

2016,

Ms.

Collins begins

her entry with "Prepare for hearing" for 0.6 hours, but fails to
delineate what the topic of the hearing was or what she did to
prepare.

ECF No.

341-10,

at 25.

Entries

for May 28-29,

2015

" The Navy also argues that Plaintiff billed a total of sixty-eight hours for
two attorneys and three paralegals to prepare a "chronology," but failed to
specify any details regarding what the chronology included, how it was used,
why it was necessary, or why it took sixty-eight hours to complete.
See
Buckius Decl. 6 (detailing the hours spent on the "chronology" as follows:
Ms.

Mastin

-

4.5

hours,

Ms.

Collins

-

26.3

hours,

Mr.

Reed

-

1

hour,

Ms.

Gallagher - 33.3 hours, Ms. Sullivan 3.2 hours).
Declarations by Plaintiff
clarify that this "chronology" was a master document for use in trial
preparation and trial strategy which included citations to deposition
testimony, deposition exhibits, and trial exhibits.
Plaintiff asserts that
this master organizational document "was essential to the management of the

thousands of documents produced by [the] Navy."

Gallagher Suppl. Decl. 1 8,

ECF No. 370-7, at 3.
The Court observes that the factual complexity of this
case is reflected in the Court's September 22, 2015 Opinion and Order in

which

the

"factual

and

procedural

history"

of

the

case

spans

thirty-two

pages.
Sept. 2015 Op. at 2-34.
Therefore, the Court finds that spending a
substantial amount of time to organize the discovery is reasonable in a
complex case such as this.
33

state that Ms. Gallagher (paralegal)

spent 12 hours revising the

opposition to the Navy's motion for summary judgment,
not

provide

any

contribution

billing

motion

as

entailed.

records

revising

detail

and

for

ECF

reflect

what

No.

that

finalizing

summary

to

at

Gallagher

brief

judgment,

Gallagher's

341-13,

Ms.

the

Ms.

in

but

19.

to

editing

Similarly,

spent

support

fails

but does

16.5

of

hours

Plaintiff's

specify

what

Ms.

Gallagher did beyond what the experienced attorneys writing the
brief

already

entry

for

had

October

Settlement

done.
1,

Id.

2015,

Conference

and

at

20.

states

Ms.
that

[took]

two

Gallaher's

she

she

"prepare[d]

"prepare [d]

trips

regarding same," and the entry for October 2,

billing
for

to

courthouse

2015,

states that

for Final Pretrial Conference and

[took]

trips

to courthouse regarding same," but does not explain what she did
to prepare for the final pretrial conference or separate out the
time for preparation and time for travel.
is unable
detail,
when

to adequately review the

and

the

Court

litigation

cannot

activity

is

fee

Id. at 25.

The Court

requested without more

parse

the

mixed

with

proper

billing amount

travel

in

a

single

billing entry.
Some

of

Plaintiff's

billing

entries

are

"block

billing"

entries which list multiple activities without delineating the
time

spent

disfavored

on
in

each

fee

activity.

award

cases.
34

Block
See

billing

Faircloth

v.

entries

are

Colvin,

No.

2;13CV156,

it was

2014 WL 5488809,

improper

compensable

to use

2015,

"Identify

issues

and

{E.D.

Ms.

with

2014)

(holding that

because

work).

it

For

commingles
example,

on

Sullivan billed 3.2 hours under the entry;

and

questions

hearing and prepare

confer

Va.

"block billing"

work with non-compensable

August 24,

judgment

at *8

judge

might

for argument

associate."

ECF

No.

pose

at

summary

on summary judgment

341-1,

at

38.

It

is

unclear from the entry whether the entire 3.2 hours constituted
a

conference

some

with

the

associate

shorter period.

hours

under

the

associate."

On April

entry:

ECF

No.

or

6,

whether

2016,

"Finalize

341-5,

at

Ms.

brief

38.

the

conference

Picco

and

was

billed 3.5

confer

Unfortunately,

with
it

is

impossible for the Court to determine how much of the 3.5 hours

was devoted to brief writing and how much to conferring with an

associate.
of

the

about.
the

brief

or

what

On January 14,

entry:

granted
same,

Additionally,

the entry fails to specify the topic

the

conference

2016,

Ms.

"draft correspondence

testimony,

revise

same."

itself is cryptic,

attend

to

ECF No.

with

the

associate

was

Collins billed 0.9 hours with
...

strategy
341-10,

to expand the

with
at

23.

partner
While

scope of

regarding
the

entry

i t is also unclear how much of this time was

spent conferring with the partner and how much time was
drafting correspondence.

35

spent

Additionally,

there

appear

contained in some entries.
Ms.

Sullivan

billed

specific tasks
February 4,

2016,

January

8,

Ms.
a

total

of

5.8

9,

Ms.

Ms.

total

of

Ms.

Ms.

hours.

Gallagher

totaling

3.6

hours,

billed 5.2 hours,

at 24.

2016,

but

only

341-1,

listed

at 45.

On

3.6

hours.

Collins

Collins

ECF No.

billed

8.5

341-5,

hours

at

but

only

ECF No. 341-10, at 22.

billed

14.3

Id.

hours

at 26.

34.

but

On
only

On April 16,

Gallagher billed 3.6 hours but only documented tasks

totaling 2.6

2015,

on January 13,

hours

documented tasks totaling 13.3 hours.
2015,

errors

Picco billed 3.9 hours but only provided

2016,

2016,

mathematical

ECF No.

documented tasks totaling 7.9 hours,
February

be

For example,

totaling 4.8 hours.

documentation for

On

a

to

ECF No.

341-13,

billed

4.6

and

September

on

at 15.

hours,

but
22,

On September 15,

only
2015,

listed
Ms.

tasks

Gallagher

but only listed tasks totaling 2.6 hours.

On January 28,

2016, Mr.

listed tasks totaling 8 hours.

Id.

Reed billed 8.5 hours but only

ECF No. 341-15, at 8."

ii. Johnson Factor One: Duplicative and Excessive Work
The

case

Court

such

that

next

work

considers

was

whether

excessive

at

Plaintiff

times,

overstaffed

and

whether

the

some

" The Court notes that errors in billing also occurred to the disadvantage of
Plaintiff, such as on February 8, 2016 when Ms. Collins documented tasks
totaling 6.8 hours of work but only billed 6.5 hours, ECF No. 341-10, at 26,
or May 8, 2015 when Ms. Gallagher documented tasks totaling 8 hours of work
but only billed 7.4 hours, or on May 12, 2015, when Ms. Gallagher documented
tasks totaling 11.6 hours of work but only billed 3.5 hours,
at

18.

36

EOF No.

341-13,

billed hours were duplicative of other work performed.
656 F.

App'x at 656

See Doe,

(affirming the district court's twenty-five

percent reduction in attorney billable hours for excessiveness);
Faircloth,

2014

WL

5488809,

at

*9

(refusing

to

compensate

attorney for editing and reviewing another attorney's work).

an
In

evaluating whether some of Plaintiff's work was duplicative and

excessive,

the Court considers the Johnson factors analyzing the

difficulty of the questions raised in the litigation,

the skill

required

the

to

perform

the

services

rendered,

and

time

limitations imposed by the circumstances of the case.
(1) Litigation Hours

The Navy argues that Plaintiff overstaffed the case during
litigation

in

the

number

of

attorneys

and

prepared for and attended court proceedings.
18.

paralegals

that

Def.'s Resp.

Br.

The Navy specifically points to the July 17, 2015 discovery

hearing

and

the

summary

overstaffing hearings.

judgment

hearing

According to the Navy,

as

examples

of

it was excessive

for Plaintiff to bill over sixteen attorney hours and twenty-one

paralegal hours in preparation for the July 17,

2015 hearing on

seven motions that had already been fully briefed.
Resp.

Br.

hearing,

20

Ms.

(noting that

hours,

in preparation for the July 17,

Sullivan billed at least seven hours,

billed over nine hours,

See Def.'s

Mr.

2015

Pearline

paralegal Gallagher billed over fourteen

and paralegal Mastin billed over seven hours).
37

The July

17,

2015

discovery hearing lasted two hours

different

motions

on

different

topics,

and covered seven

including

Plaintiff's

motions for sanctions due to discovery disputes and to exclude
testimony of two of the Navy's expert witnesses and the Navy's
motions

to

compel

answers

to

Plaintiff's expert witness.

hearing,

Plaintiff's
two

paralegals—an

amount

reduction

in

ECF No.

average

approximately

hours

interrogatories

attorneys

time
hours,

Plaintiff's

that,
the

to

exclude

To prepare for this

preparation

by

of

147.

and

time
and

per

was

hours

by

three

subject
Court

motion

to

the

finds

overall

reasonable

in

relation to the complexity of the legal issues.
The

Navy

reasonable"

summary

hearing,

also

argues

it

was

not

"necessary

or

for three attorneys and two paralegals to attend the

judgment

hearing

on

Plaintiff's

behalf.

the Court heard from counsel on a

judgment

filed

summary

judgment

by

the

Navy

against

specifically addressing the
defense

that

of

and
the

filed

exhaustion,

claim."

calculated by Mr. Buckius,

cross-motion

Navy

Sept.

2015

At

motion for

for

by

joint employer doctrine,

administrative

constructive discharge

a

Id.

and

Op.

the

summary

partial

Plaintiff,
the Navy's
Plaintiff's

at

128.

As

Plaintiff billed 15.9 paralegal hours

Then-CO-defendant TCA also filed a motion for summary judgment on the issue
of reasonable accommodation, which the Court heard argument on at the summary
judgment hearing.
ECF No. 85.
The Navy argued first that the Navy was not a
joint employer of Plaintiff, but also argued alongside TCA that TTY was a
reasonable accommodation.

38

and 13.7

attorney hours

judgment hearing.

was

also

to prepare

Buckius Decl.

represented

attorney representing

by

three

for

3.

and attend

At

the hearing,

attorneys,

co-defendant TCA.

the

in

summary
the Navy

addition

ECF No.

to

176.

Due

the
to

the complexity and potentially dispositive nature of the issues,

and the Navy deeming that three attorneys were necessary for its
own representation,
hours

were

the Court concludes that most of Plaintiff's

reasonably

expended

to

prepare

for

and

attend

the

hearing.
The

Navy

excessive:

eight

twenty-four

hours

statement;

for

200

and

trial

most

challenges

hours

paralegals

over

depositions

exhibits,

additionally

of

for

to

hours

Rule

revise

for

exhibits;

which were

the

following

26(a)(3)

Ms.

paralegal

hours

disclosures;

Sullivan's
Reed

opening

to

over-identification

not

as

review
trial

and a

ultimately used;

of

final

pretrial conference that lasted three days with time billed by
two

attorneys

and

two

paralegals.

Def.'s

Resp.

Br.

While the Navy argues that these hours are excessive,
does not propose to the Court a

for each documented task.
the Court
issues,

itself

first observes

the

case

worked collaboratively.

the Navy

specific hour-by-hour reduction

In considering the Navy's arguments,
that

this

case

involved complex legal

was vigorously litigated by both parties,

staffed

18-21.

with
See,

three
e.g.,
39

attorneys

and the Navy

who

Excerpt Trial Tr.

themselves
(Rule

50

Motion)

you

48-49,

all

ECF No.

on

the

SYLVERTOOTH:

331

("THE COURT:

summary

'It

was

a

judgment

'Who wrote the brief for

on

this

collaborative

issue?'

MR.

effort.'").

Having

reviewed the records sxibmitted by Plaintiff and the declarations
from each outside attorney,

time
that

was

reasonably

the

Navy

Plaintiff

spent

the Court finds that some amount of

by

Plaintiff

challenged.

appeared

somewhat

on

However,

the

at

disorganized,

specific

various
such

tasks

hearings

as

having

inordinate trouble locating documents or not having scrutinized
exhibits ahead of discovery dispute proceedings.

of

Plaintiff's hours

September

30,

designations,

appear duplicative.

2015

Plaintiff

proceeding
failed

to

Moreover,

For example,

to

address

provide

the

at

some

the

deposition

Magistrate Judge

an advance copy of Plaintiff's deposition designations, and when
the

Court

to

that

apparent

began

the

objections.

review

the

parties

designations,

had

not

it

quickly became

conferred

about

the

The Magistrate Judge directed the parties to work

to resolve the objections before the final pretrial conference.
However,

with

the

the

final

pretrial conference

extraordinary

length

being

lasted over three days,

significantly

due

Plaintiff not having scrutinized exhibits ahead of time.
result.

to

As a

Plaintiff ultimately withdrew dozens of exhibits at the

conference.

40

In addition

Plaintiff,

the

Mr.

Reed

examination of

Plaintiff's
2015

to

disorganization evidenced at

times

by

some hours billed appear to be for repetitive work.

For example,

cross

to

lead

billed numerous

Jennifer

attorney,

prepare

the

hours

Taylor.

billed

preparing

However,

4.2

examination

for

hours

of

Ms.

on

the

Sullivan,

September

"Jennifer

13,

Taylor

and

Plaintiff" and billed 0.4 hours on September 14, 2015 to "review
depositions of Jennifer Taylor and summarize."
at

39.

The

duplicative

Court
work

considers

in

Plaintiff's

considering

the

ECF No.

preparation

Johnson

341-1,

level

factors

and

analyzing

counsel's skill in performing the services rendered and the time

limitations imposed by the case.
the

Court

concludes

that

some

duplicative or excessive,

For all of the above reasons,
of

counsel's

billed

hours

were

and will reduce Plaintiff's litigation

hours as an overall percentage accordingly.
(2)

The Navy argues

Fee Petition Hours

that

Plaintiff's

"fees-on-fees"

duplicative because attorneys and paralegals
one another's work.

Def.'s Resp.

Br.

23.

hours

are

repeatedly rewrote
It is

"well settled

that the time spent defending entitlement to attorney's fees is
properly compensable" under a fee-shifting statute.

Trimper,

F.3d

if

at

attorneys

77

(internal

bill

for

citation

completing

omitted).

the

same

However,

work

product

58

multiple

and

the

contribution of each attorney is not justified, the billed hours
41

should

be

reduced

F.3d at 180

use

of

billing

excessiveness.

See

Rum

Creek

Coal,

31

("[W]e have also been sensitive to the need to avoid

multiple

justified

for

by

counsel

the

for

tasks

contributions

by multiple

attorneys

unacceptable duplication."

of

where

each

on a

such

use

attorney.

large

case

is

not

Generalized

often produces

(citing Spell, 852 F.2d at 762)).

In evaluating the time and labor reasonably expended under
Johnson factor one,

to

the

Navy's

the Court concludes that there is some merit

concerns

efforts

in

preparing

records

reflect

regarding

the

petition.

without

example,

Mr.

declaration

declaration
(April
13,

13,

2016).

and

ECF No.

affidavit

in

"telephone
ECF No.

(March

2016),

2016),

each reviewer uniquely contributed.

Pearline

{April

billed

31,

6,

2016),

2016),

drafting
341-2.

Ms.

of

32

drafting

Mastin's
Ms.

Ms.

fees"

2016) .

Collins's

declaration

declaration

Collins

(April

(April

billed to

and

For

Sullivan's

declaration

Pearline
9,

Ms.

Picco's

Gallagher's

attorney's

(Sept.

drafting

drafting Ms.

However,

conference with Mr.
at

for

drafting Ms.

support

341-10,

reviewing

billing

affidavits in support of the motion for attorney's fees,
what

spent

Plaintiff's

of

editing

for

hours

duplication

and

explanation

numerous

fee

Plaintiff's

then

"draft

have

Overall,

in addition to the 105.58 hours that Mr.
42

a

regarding affidavits."
Ms.

Collins

billed 52.6 hours of work related to Plaintiff's attorney's

petition,

13,

fee

Pearline is

requesting for the same.
by the drafting of Ms.

drafted

Ms.

attorney,

Picco's

billed

declaration
petition,

spent

declaration,
hours

preparing

for

Picco,

work

information

Mastin

billed

of

pleadings,

0.2

and

40.

for

editing

hours

docket

to

Picco

Ms.

(Sept.

and

After

"revising"
attorney's

the

Ms.

"review"

files

15,

for

Mr.

her
fee

had

writing

at

done

experienced

Ms.

Affidavit

341-5,

an

Pearline

and

hours

No.

Ms.

After Mr.

both attorneys with multiple decades of experience,

Picco,

ECF

Picco's declaration.

12.5

and

The redundancy of work is illustrated

Pearline

Picco's
and

2.7

2016),

edits

and

declaration,
hours

4

hours

to

to

citations"

Ms.

"revise"

"review
for

Ms.

Picco's affidavit

(Sept. 16, 2016), 1 hour to "edit" Ms. Picco's

affidavit

19,

cites"

0.5

(Sept.

to Ms.

hours

to

2016),

Picco's

make

0.3

affidavit

"final

hours
(Sept.

completing
20,

2016),

revisions"

to

(Sept.

2016) .

and

and another

attorney

affidavits

including that of Ms.

Picco

at 28-30.

the Court concludes that Plaintiff billed

hours

that

petition,
overall

Therefore,

appear

excessive

and will reduce
percentage

in

21,

"edits

the

Plaintiff's

accordingly.

See

preparation

a

project

when

a

different

responsible" for the project).

43

of

341-14,

the

fee

fee petition hours as an
Daly,

(reducing as duplicative an attorney's hours

on

ECF No.

790

P. 2d

at

1080

for work performed

attorney

was

"primarily

iii. Johnson Factor One: Billing Judgment

In

determining

the

reasonableness

of

the

time

and

labor

expended under Johnson factor one, counsel's "'billing judgment'
is

an

important

Copeland

v.

component."

Marshall,

641

Hens ley,
F.2d

461

880,

891

U.S.

at

434

(1980)}.

{quoting
The

Court

notes that Plaintiff utilized and paid for the services of Karen
Paige

Thomas,

licensed
hours)

a

law

attorney,

who

and Leslie

provided

and

H 18,

graduate

provided

Crocker,

redacting

Sullivan Decl.

school

an

document

experienced

other

ECF No.

at

trial

341-1,

the

time,

review

services

legal

support

at 5.

and

assistant

work

(71

now

(149
who

hours).

Plaintiff does not

request any reimbursement for the work performed by either Ms.
Thomas or Ms.

Crocker.

Id.

In addition.

Plaintiff represents

that $111,354.00 was written off prior to submission of the fee

petition for entries that "might have been construed as clerical
time for the paralegals which totaled in excess of 300 hours for

each paralegal."

Sullivan Suppl. Decl. H 21, ECF No. 370-2.

Plaintiff also represents that she segregated out the work

that was solely related to TCA,

at a value of $238, 010.00,

did not include it within the fee petition.

Id.

H 18.

and

Such

omitted work included time spent preparing witness outlines for
TCA

witnesses,

attending

depositions

settlement negotiations with TCA,

for

TCA

witnesses,

responding to TCA's motion for

summary judgment, and preparation of the portion of responses to
44

the

joint

arguments

pleadings

raised

by

with

the

Navy

TCA.

Id.

t

that

17.

addressed

Plaintiff

only

the

specifically

omitted any time editing responses to TCA's motions and omitted

time spent responding to case law cited only by TCA.

Id. H 19.

iv. Reasonable Hours Summary
As

of

the

Court

Plaintiff's

vigorously

concludes

hours,

the

litigated

discovery disputes

its

evaluation of

Court observes

case.

In

that

resolving

that arose during this

the

reasonableness

this

one

has

of

case,

been a

the

many

the Magistrate

Judge wrote that Plaintiff's "counsel's actions were deliberate.

More troubling,

of

zealous

the tactic reflects a history pushing the limits

advocacy

which

has

unnecessarily

process of preparing this case for trial."
However,

the

case

According to Ms.
did not make a

than

were

also

vigorously

months

than

after

Plaintiff's

excluding attorney's

fees,

Plaintiff's perspective.
district

litigated

Plaintiff's

court

'has

the

299,

at 5.

the

Navy.

by

Sullivan's Supplemental Declaration,

Sullivan Supp. Decl. H 21.
less

ECF No.

settlement offer until September 30,

twenty-one

filed.

was

complicated

the Navy
2015,

complaint

was

more

first

The Navy's settlement offers

out-of-pocket

litigation

costs,

making it impossible to settle from

Id.;

see McAfee,

discretion

to

738 F.3d at 90
consider

("[A]

settlement

negotiations in determining the reasonableness of fees but it is
not

required

to

do

so.'"

(quoting
45

Thomas

v.

Nat'l

Football

League

Players

2001))).

The

Plaintiff

to

Ass'n,

Navy's
expend

273

F.3d

actions

1124,

during

unnecessary

1130

n.9

litigation

additional

(D.C.

also

time,

Cir.

required

such

as

by

requiring motions to compel discovery and requiring the issuance
and

service

of

subpoenas

through

Washington D.C.,

when counsel

the

Sullivan Supp.

witnesses.

command

Decl.

in

accepted service

could have

headquarters

for

H 23.

Thus,

the

Court

notes that the vigorous litigation of the case by both parties
drove up the hours expended on the case.
Having

reviewed

Plaintiff's

considered Johnson factor one,

submitted

documents

and

the time and labor expended,

the

Court makes the following adjustments to the hours requested in
order

to

eliminate

hours

that

Plaintiff

has

demonstrate were reasonably billed to this case.
adjustments,

entries

it

the

Court

objects

to,

notes

but

that

did

not

the

Navy

tally

the

failed

to

In making such
has

identified

total

hours

it

believes to be improper in order to suggest a specific reduction
to

the Court.

of

the

2006)

See McDonald ex rel

NYSA-IIA

Pension

Trust

Fund,

Prendergast v.
450

F.3d

91,

Pension Plan
96

{2d

Cir.

{"A district court may exercise its discretion and use a

percentage deduction as a practical means of trimming fat from a
fee application.")(internal citations omitted).

however,

find

that

the

Navy's

objections,

The Court does,

coupled

with

the

Court's obligation to allow an attorney's fee award only to the
46

extent it is "reasonable," warrants some degree of adjustment to
the hours
373

claimed.

(4th Cir.

1996)

In re A.H.

Robins Co.,

Inc.,

86

F.3d 364,

("A court abuses its discretion i f i t allows

a fee without carefully considering the factors relevant to fair
compensation."

(citing Barber, 577 F.2d at 226)).

To account for work that was not adequately documented such
that a paying client would likely have reasonably disputed same

upon

receiving

reduced by

also

to

adversary
and

bill,

the

ten percent.

Hens ley,

billed

a

461

one's

U.S.

client

pursuant

citation

to

requested

See

at

supra Requested Hours

434

also

("Hours

are

statutory

omitted).

"litigation"

not

that

are

hours
at

not

properly billed

authority.")

Additionally,

the

30;

are
see

properly

to

one's

(quotation

marks

hours

attributed

to

the "fee petition" are reduced by twenty-five percent to reflect

the duplication of efforts among attorneys and paralegals.

supra Requested Hours at 30; McAfee, 738 F.3d at 90
the

district

court

reduced

the

hours

ten

percent

each

because

of

how

Cope land,

641 F.2d at 903

of

two

they

(noting that

lead attorneys

billed

See

their

by

time);

(holding that i t was reasonable for a

district court to reduce a

fee award without performing an item-

by-item accounting of the attorney's hours).
Finally,

supplemental

the

fee

Court

notes

petition

renewed motion for

that

resulted

judgment as

a
47

the

hours

primarily

matter of

expended

from

the

on

the

Navy's

law made after the

Court previously had carefully considered and denied

motion.

In doing

so,

significant additional

the

Navy

required

Plaintiff

the

to

time responding to such motion,

increasing Plaintiff's attorney's fees.

same

expend
thereby

The Court easily finds

the hours Plaintiff billed to respond to the Navy's motion to be
reasonable.
to

Additionally,

Plaintiff's

considerable
responsive

detailed,

fee

time

due to the Navy's specific objections

petition.

siibmitting

declarations.

thorough,

Plaintiff

forty

These

was

eight

required

additional

declarations

by

to

spend

pages

Plaintiff

of
are

and helpful to the Court in evaluating each

contention raised by the Navy.

As

such,

time spent to assemble these responses

the Court

finds

to be reasonable.

the

Thus,

the Court makes no reduction to the hours requested by Plaintiff

in the supplemental fee petition for the time spent responding
to

the

Navy's

objections

to

post-trial
the

fee

motion

petition.

and

answering

Accordingly,

the
the

Navy's
Court

recognizes the following hours as reasonably spent by Plaintiff
in this litigation:

48

,
Name

HOtTRS

Fee

Supplemental

Total

Petition

Fee Petition

Hoors

Litigation

Ann Sullivan

1,055.9

30.2

69.5

1,155.6

Melissa Picco

559. 6

9.2

49.1

617.9

Deborah Collins

568.2

34 .6

115.8

718.6

David Pearline

99.0

47.4

42.333

188.733

Angela Mastin (para)

538 .8

57.9

73 .7

670.4

Skylar Gallagher (para)

672.6

672.6

B. Thomas Reed (para)

330.5

330.5

c. Lodestar Summary

Based

analysis

upon

the

outlined

reasonable

above,

the

Court's lodestar calculation,
attorney's

fee

award prior

hours

following

and

reasonable

table

rate

reflects

the

which is the starting point for an
to

any

adjustments

in

step

two

or

three of the required analysis.
Hotos

Hours

Requested

Awarded

1,259.6

1,155.6

$ 400

$

462,240.00

Melissa Picco

661.3

617. 9

$ 315

$

194,638.50

Deborah Collins

793.2

718.6

$ 235

$

168,871.00

215.58

188.733

$ 375

$

70,774.88

Angela Mastin (para)

749.6

670.4

$ 125

$

83,800.00

Skylar Gallagher (para)

747.3

672.6

$ 100

$

67,260.00

B. Thomas Reed (para)

367.2

330.5

$ 150

$

49,575.00

Name

Ann Sullivan

David Pearline

TOTAL Lodestar Figure

Rate

Total

$ 1,097,159.38

49

2. Adjustment for Unsuccessful Unrelated Claims

After

a

lodestar

determine whether the

figure

fee

is

calculated,

the

Court

must

award should be reduced to reflect

the

time counsel spent on unsuccessful claims that are unrelated to
the

successful

plaintiff's

theories,
claims,

claims.

claims

Robinson,

are

based

560

on

F.3d at

and

the

legal

and the plaintiff has prevailed on only some of those
.

.

.

these

unrelated

claims

[must]

they had been raised in separate lawsuits,
may be awarded for

789

(1989).

but

not

However,

others

and

be

treated

as

Garland Indep.

when a

the

if

and therefore no fee

services on the unsuccessful claim."

State Teachers Ass'n v.

facts,

"Where

facts

different

244.

Sch. Dist.,

Texas

489 U.S.

782,

plaintiff prevails on some issues

claims

arise

"out

of

a

common

core

of

and involve related legal theories," a district court may

exercise

its

discretion

to

arrive

at

a

reasonable

fee

award,

"either by attempting to identify specific hours that should be
eliminated or by simply reducing the
limited success of

the plaintiff."

Navy

Plaintiff

argues

that

"fruitless

challenges"

objections

that

denied.
objections
observes

were

Def.'s
as
that

"fruitless"
there

upon

ultimately

Br.

is

Id.

should

based

Resp.

award to account

22

50

not

a

either

to

by

the

Here,

the

compensated

for

of

and

789-90.
be

number

{listing

efforts
merit

at

for

motions

fully

or

thirteen

Plaintiff).

the

Navy's

partially

motions
The

argument

and

Court
that

Plaintiff spent time on issues that ultimately were of little or
no significance at trial.
hearing

the

before

"eight

material

the

second

fact.

For example,

district

delay"

At

court,

of

trial,

TTY

the

at the summary judgment

Plaintiff

was

Court

a

represented

significant

commented

that

that

issue
it

of

relied

upon Plaintiff's representation of the importance of the eight
second delay to,
that

moment

ECF No.

it

332,

troubling"

in part,
had

at

deny summary judgment, but that as of

heard

36.

"not

As

a

word

noted on the

about

it

record,

in

the

trial."

that was

"really

to the Court due to Plaintiff's prior representation

of its significance.^®
However,

while

Id.

Plaintiff

did not

claims or each motion made throughout
acknowledges

that

Plaintiff's

claims

prevail
the

arose

upon

all

litigation,
from

of

her

the Navy

"a common core

of facts."

Def.'s Resp. Br. 24.

In light of the common core of

facts,

Navy

would

the

agrees

that

it

be

more

appropriate

to

consider Plaintiff's lack of success on specific claims within
the
"

overall

While

this

adjustment
issue

is

due

significant

to
to

Plaintiff's
note

in

the

lack
context

of
of

success
awarding

plaintiff attorney's fees,
as the Court previously ruled,
it was not
dispositive on the issue of whether a material fact remained for the jury.
As the Court explained in ruling on the Navy's renewed Rule 50(b) motion:
"[T]he Court stated that 'it may be' that the evidence, including the general
evidence of delays, presented by Plaintiff in her case-in-chief 'creates a
jury issue on whether or not a TTY would be sufficient to allow Ms. Crump to
perform the essential functions of her job,' but i t was unfortunate that
Plaintiff's summary judgment argument against co-defendant TCA specifically
asserted an eight second delay and no witness had specifically referenced
such eight second delay during the case-in-chief."
Nov. 30, 3016 Mem. Op.,
ECF No.

368,

at 7.

51

overall

instead of

a

specific

Navy does

not

for hours

spent on unsuccessful

ones]

be

can

(noting
civil

that

contend

readily

the

rights

Senate

cases

cited

on

"certain

litigation).
of

Thus,

analysis

and

[by

Id.

("The

subtracting

fees

claims unrelated to successful

Report

fees

in hours.

an adjustment

calculated.");

authorized attorney's
losses

that

reduction

Hensley,

461

U.S.

authorizing attorney's

numerous

430

fees

in

approvingly

that

to prevailing parties despite

their

minor

cases

at

contentions"

throughout

the

the Court makes no adjustment at this stage

moves

on

to

considering

Plaintiff's

overall

success on the merits.

3. Adjustment for Degree of Success

The

final

step

in detennining

a

reasonable

calculating a percentage of the lodestar figure

account

the

Grissom,

549 F.3d at 321

described
only

"'degree

in

greater

"partial

or

of

success

enjoyed

by

(quoting Johnson,

detail

limited

above,

success,"

award

a
as

the

plaintiff.'"

plaintiff
in

this

faith."

Hensley,

adjustment
the

to

the

Court notes

"amount

"interrelated,

in

461

U.S.

nonfrivolous,
at

lodestar figure

436.

In

case,

controversy

and

the
52

results

the

that

and raised in good
concluding

is appropriate

that Johnson factor eight,

As

achieves

lodestar figure may be excessive notwithstanding the fact
all claims were

is

that takes into

278 F.3d at 337).

when
such

fee

that

in this

an

case,

which evaluates

the

obtained,"

not

was

subsumed

figure,

within

but

figure.

is

the

considered

McAfee,

Farrar,

506

738

U.S.

114

30,

discovery

litigated

Plaintiff

and

litigation.
summary

the

the

lodestar

(emphasis added);

see also

adjustment

overall

judgment

success

case,
Navy

it

of

.

.

.

goes

to

the

is

"one

206,

readily

succeeded

of

the

most

ever seen in this court."

ECF No.

on

Plaintiff's

in

at 25.

apparent

certain

constructive

In this

that

aspects

of

both
this

demonstrated

claim,

that

i t did so with the

Sept. 2015 Op. at 128.

Plaintiff

was

not

substantial amount of damages that she sought.

of

discharge

"no reasonable finder of fact could conclude that,

intent to force Plaintiff to quit."

recovery

omitted)

the Magistrate Judges

if the Navy failed to accommodate Plaintiff,

also

marks

The Navy succeeded when the Court granted the Navy

holding that

Navy

to

quotation

disputes,

2015 Proceeding,

intensely

lodestar

according to one

resolving

of Sept.

the

(internal

thoroughly litigated ADA cases
Tr.

the

determining

fee award.").

case was,

in

in

the plaintiff's

reasonableness of a

involved

analysis

F.3d at 89-90

at

("[T]he degree of

This

prior

substantial

punitive,

to

the

Plaintiff sought

compensatory,

damages for a variety of purported harms,
substantial childcare expenses,

entitled

The

and

equitable

including recovery for

recovery for losses relating to

two rental properties in the amount of $87,870.75,

recovery for

the

sell

loss

of

appreciation

for

stocks
53

she

had

to

in

the

amount of $129,281.15,
relating

recovery for the loss of a

to her 401k in the

amount

of

"tax benefit"

$2,594.00,

and recovery

for interest paid on a loan to pay her attorney in the amount of

$3,166.67.
79-3,

Pl.'s

at 16-18,

2d Supp.

professional

advancement

for

emotional

reputation,

due

to

the

anguish,

of

standing,

character

life,

Finally,

Navy.

returned

emotional distress,

inconvenience,

self-esteem,

stress,

injury

to

reputation,

injury

to

Following
for

a

two-week

Plaintiff

loss

of

professional

on

the

jury

trial,

failure

to

the

jury

accommodate

her requested damages.

Verdict

314.

these

matters

the

judgment

regarding

holding

that

where

the

Navy

enjoyed

it is clear from the record that Plaintiff

"prevailing party."

page opinion,

of

Id.

significant success,

the

loss

and

Notwithstanding

is

period

for

credit

verdict

ECF No.

opportunities

unemployment,

claim but awarded her none of
Form,

of

damage

Plaintiff also sought punitive damages against

Id.

a

Plaintiff sought

of

anxiety,
and

ECF No.

consequential damages and other injury."

financial anxiety,

the

loss

embarrassment,

enjoyment

at 19.

Disclosures,

pain and suffering,

prolonged

emotional pain and suffering,
mental

26{1)(1)

In addition to these damages.

"compensatory damages

to

Rule

In a

one

hundred

and

twenty-nine

Court granted Plaintiff's motion for
the

"[f]or

Navy's

the

status

purposes
54

as

of

Plaintiff's

summary

employer,

Rehabilitation

Act

liability,

the

Navy was

employer doctrine,"

Plaintiff's

employer

under

the

joint

and simultaneously denied the Navy's motion

for summary judgment on the defense of administrative exhaustion

because the Court determined that there was a genuine dispute of
material fact.

Sept.

2015 Op. at 128.

Having established that

the Navy was a

joint employer,

Plaintiff achieved a significant

legal

when

found

victory

the

provide Plaintiff a

jury

that

the

Navy

failed

to

reasonable accommodation as required by the

Rehabilitation Act.

Verdict Form,

ECF No.

314.

Moreover,

upon

hearing additional evidence on Plaintiff's request for equitable
relief,

the

Court

awarded

Plaintiff

back

pay

damages

$40,842.42, plus pre-judgment and post-judgment interest.

of

Sept.

2016 Op. at 337.

Considering all

of

the above,

55% reduction in attorney's fees

the

Court

concludes

that

a

is appropriate in this case to

reflect Plaintiff's tangible victory by prevailing on the merits
before the jury and receiving a substantial award of back-pay by
the

Court,

success

while

also

taking

into account

in defending against Plaintiff's

discharge

and

in persuading the

jury to

the

Navy's

claim of constructive
award no

compensatory

damages on Plaintiff's reasonable accommodation claim.

461 U.S.

at 436-37

formula"

for reducing a

court

"may

simply

(noting that

the

award");
55

Hensley,

"[t]here is no precise rule or

fee award for a

reduce

complete

lack of success but the

Deming

v.

Kanawha

City

Co.,
a

852 F.2d 565,

565

(4th Cir.

1988)

(upholding under Hens ley

district court's seventy-five percent reduction of attorney's

fees due to appellants'

limited success).

fee

award

is

to

$493,721.72.

in

this

case

Such

therefore

total

fee of $31,848.70 to Mr. Pearline,
IV.

Having performed the

reduced

figure

$461,873.02 to Sullivan Legal Group,

required

a

fee

"lodestar analysis,"

adjusted

success

represents

of

and a

Conclusion

n.28,

of

$1,097,159.38

Plaintiff's co-counsel.

the Johnson factors.

"degree

from

Plaintiff's counsel,

considered all of

and having

The total attorney's

the

Barber,

lodestar

achieved"

by

Plaintiff's motion for

attorney's

and

Plaintiff's

motion

for

No.

340; ECF No.

372.

fees

577

F.2d at

226

to

reflect

the

figure

Plaintiff,

and

supplemental

having

the

Court

GRANTS

litigation expenses

attorney's

fees.

ECF

After making a downward adjustment to the

total hours requested by Plaintiff and adjusting for Plaintiff's
overall

success,

Plaintiff

in

the

the

amount

represents

a

Plaintiff's

counsel,

Plaintiff's

Court

fee

of

hereby

of

$493,721.72.

$461,873.02

and

a

AWARDS

fee

of

co-counsel.

56

to

attorney's
Such

Sullivan

$31,848.70

fees

to

total

figure

Legal

Group,

to Mr.

Pearline,

The Clerk is REQUESTED to send a copy of this Opinion and
Order to all counsel of record.
IT IS SO ORDERED.

/S/
Mark S.

Davis

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
March

,

2017

57