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Doe v. Rector and Visitors of George Mason University

United States District Court, E.D. Virginia, Alexandria Division

June 21, 2016

JOHN DOE, Plaintiff,


          T. S. Ellis, III United States District Judge.

         At issue post-judgment in this Fourteenth Amendment due process and free speech case are plaintiffs first motion and supplemental motion for attorney's fees and costs pursuant to 42 U.S.C. § 1988, which allows "the prevailing party" in an "action or proceeding to enforce a provision of...[42 U.S.C. §] 1983" to collect "a reasonable attorney's fee as part of the costs." Because the question of fees and costs has been fully briefed, [1] oral argument is dispensed with as the facts and arguments are adequately set forth in the record, and oral argument would not aid the decisional process. Moreover, plaintiff waived oral argument on the motions, and defendants did not object to that waiver.


         As the pertinent facts giving rise to this action have been previously recited at length, only a brief summary is necessary here.[2] Plaintiff, a now-reinstated student at George Mason University ("GMU"), was expelled from GMU in December 2014 on findings of sexual misconduct and violation of GMU's student speech code. Plaintiffs expulsion grew out of an unusual set of facts. First, plaintiff contends that the acts allegedly constituting the sexual misconduct for which he was expelled were in fact part of a fully consensual BDSM arrangement with his accuser.[3] Second, following an approximately ten-hour long hearing at which plaintiff and his accuser were given a full and fair opportunity to present their cases, a majority of a GMU sexual misconduct panel consisting of three specially trained faculty and staff members found plaintiffs contention credible and therefore acquitted plaintiff of the misconduct charges levied against him. Third, notwithstanding plaintiffs acquittal before the initial hearing panel, defendant Brent Ericson, GMU's Director of the Office of Student Conduct who had played a significant role in investigating the allegations against plaintiff, (i) permitted plaintiffs accuser to appeal plaintiffs acquittal in violation of GMU policy, (ii) assigned the appeal to himself, (iii) met ex parte and off the record with the accuser, and (iv) decided to reverse plaintiffs acquittal and to expel plaintiff before plaintiff was given any meaningful opportunity to present a defense. Defendant Juliet Blank-Godlove, GMU's Dean of Students, affirmed Ericson's decision.[4]

         Plaintiff commenced this action in February 2015, inter alia, to enforce his Fourteenth Amendment due process and free speech rights under § 1983.[5] After voluminous briefing at the motion to dismiss stage, plaintiff was left with two viable claims, namely (i) deprivation of liberty without due process of law and (ii) infringement of plaintiffs right to free speech. See Doe, 132 F.Supp. 3d at 735. On cross-motions for summary judgment, plaintiff prevailed on both counts. See Doe, - F.Supp. 3d -, 2016 WL 775776, at *21. Thereafter, an Order issued (i) directing GMU to reinstate plaintiff as a student, (ii) directing GMU to expunge all records of plaintiffs expulsion, and (iii) enjoining GMU from pursuing certain related disciplinary charges unless those charges were pursued to completion within sixty days of the entry of final judgment. See Doe v. Rector & Visitors of George Mason Univ., __ F.Supp. 3d __, 2016 WL 1574045, at *2-6(E.D.Va. Apr. 14, 2016).

         Plaintiff now seeks attorney's fees and costs pursuant to § 1988. Although § 1988 on its face makes an award of attorney's fees discretionary, it is well-settled that "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 (1983) (internal quotations omitted). GMU correctly does not dispute that plaintiff is a prevailing party, D. Opp. at 1, insofar as he "succeeded] on [a] significant issue in litigation which achieve[d] some of the benefit [he] sought in bringing suit." Id. at 433 (internal quotations omitted). Nor does GMU argue that any special circumstances are present in this case that would render an award of attorney's fees unjust. See D. Opp. at 1 n.l. Accordingly, the only issue to decide on plaintiffs motion for attorney's fees and costs is what amount is "reasonable" under § 1988.


         As the Fourth Circuit has explained, "[t]he proper calculation of an attorney's fee award involves a three-step process." McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013). First, a court must calculate the "lodestar" figure by multiplying the number of reasonable hours expended times a reasonable hourly rate. Id. The determination of a reasonable number of hours and a reasonable rate is governed by a twelve-factor analysis. Specifically, a court must consider:

(1) The time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.

Id. at 88 n.5. Once the lodestar figure is ascertained, a court must then subtract fees for hours spent on "unsuccessful claims unrelated to successful ones." Id. at 88 (internal quotations omitted). And finally, a court "should award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff." Id. (internal quotations omitted).

         Plaintiffs fee request is reflected in the following chart:

Attorney/Paralegal Name


Hours Requested

Hourly Rate Charged

Fee Requested

Adam R. Zurbriggen




$167, 102.25

Justin Dillon




$81, 196.50

Allison Lansell




$33, 883.50

Matthew G. Kaiser




$16, 910.00

Christopher G. Muha




$6, 402.50

Rebecca S. LeGrand





Jacob Clark






1, 099.85

$307, 284.25

         See Dillon Dec. (Doc. 103), ¶15; Dillon Supp. Dec. (Doc. 110), ¶ 8. Plaintiff also requests costs of $667.00, which is the sum of the $400.00 filing fee and $267.00 for messenger services. See Dillon Dec, ¶ 18; Dillon Supp. Dec, ¶ 9. Thus, plaintiffs total requested award is $307, 951.25.

         To calculate the lodestar figure, analysis properly begins by identifying a reasonable number of hours expended and a reasonable hourly rate. Importantly, there is no dispute between the parties that the rates claimed by plaintiffs attorneys are reasonable.[6]See D. Opp. at 1-2. The record supports the absence of such a dispute, in that the requested hourly rates are in line with the prevailing market rates in the region for the type of legal work involved in this lawsuit and commensurate with each attorney's skill, experience, reputation, and work in the case. See Reilly Dec. (Doc. 104), ¶¶ 20-37. Across the board, plaintiffs attorneys charged hourly rates lower than the hourly rates that have been found "reasonable" for attorneys of comparable experience in civil rights actions in Northern Virginia.[7] Moreover, the hourly rate charged by the associates who performed most of the work on plaintiffs case is also lower than the hourly rate charged by an associate of comparable experience with the local civil rights law firm Victor M. Glasberg & Associates. See Reilly Dec, ¶¶ 30, 35. In short, the record reflects that plaintiffs requested hourly rates are (i) customary for the work performed (Factor 5), (ii) appropriate in light of the attorneys' levels of experience (Factor 9), and (iii) consistent with attorney's fee awards in comparable cases (Factor 12). See McAfee, 738 F.3d at 88 n.5. Plaintiffs requested rates are all the more reasonable in light of the fact that plaintiffs case presented novel legal questions (Factor 2), namely whether students at public higher education ...

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