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Crump v. United States Dept of Navy

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

March 27, 2017

SUMMER CRUMP, Plaintiff,
UNITED STATES DEPT OF NAVY, by and through RAY MABUS, SECRETARY OF DEPT OF NAVY, Defendant. NAME HOURS Litigation Fee petition Supplemental Fee Petition Name HOURS Litigation Fee Petition Supplemental Fee Petition Total Hours Name Hours Requested Hours Awarded Rate Total $ 1, 097, 159.38



         This matter is before the Court on motions filed by-Plaintiff, Summer Crump, seeking attorney's fees, ECF No. 340, and seeking supplemental attorney's fees, ECF No. 372. Such motions are filed pursuant to 29 U.S.C. § 794a(b), and are predicated on Plaintiff's success in obtaining a jury verdict in her favor and the Court's subsequent grant of back pay. Defendant, United States Department of Navy ("the Navy"), filed a responsive brief acknowledging that Plaintiff may be eligible as a prevailing party to seek attorney's fees, but arguing that the Court should nevertheless not award her any attorney's fees due to her minimal recovery in the instant case. ECF No. 361. For the reasons discussed below, Plaintiff's motion seeking attorney's fees 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 suffers from bilateral profound sensorineural hearing loss, and has utilized cochlear implants for approximately fifteen years. Nov. 30, 2016 Mem. Order 2, ECF No. 368 ("Nov. 2016 Order");[1] see also Sept. 8, 2016 Op. and Order 2, ECF No. 337 ("Sept. 2016 Op.") (internal citations omitted). After obtaining such cochlear implants, Plaintiff became a licensed physician assistant. Nov. 2016 Order at 2. With the assistance of her cochlear implants, Plaintiff was generally able to hear and speak without further assistance. Plaintiff was hired by TCoombs & Associates, LLC and TCMP Health Services, LLC (collectively TCA") to begin providing physician extender services on or about June 3, 2010 at the Navy's Sewells Point Clinic, pursuant to a contract between TCA and the Navy. Id. In providing these services, TCA and the Navy jointly employed the Plaintiff, as this Court previously found, for purposes of determining liability under the Rehabilitation Act of 1973. Id. (citing Sept. 22, 2015 Op. and Order, ECF No. 183 ("Sept. 2015 Op.")).

         Plaintiff left her position at Sewells Point Clinic, on unpaid leave under the Family and Medical Leave Act ("FMLA"), 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. Id. Plaintiff therefore requested an accommodation to be successful in returning to work at Sewells Point Clinic, including reduced noise levels and use of a video relay service (rather than a teletype service) for communication on the telephone. Id. at 3. At the most basic level of description, with a teletype service, also referred to as a TTY, a hearing impaired person calls a communications assistant ("CA") who then calls the recipient, and communications are typed by the hearing impaired person and spoken by the CA. With a video relay service ("VRS")/ the communications between the hearing impaired person and interpreter are signed, using American Sign Language ("ASL"), by way of a video monitor, and the hearing impaired person can use her own voice and utilize any residual hearing capacity to hear the voice of the hearing person. Plaintiff sought a VRS, not a TTY. She began seeking such accommodation and return to work in June 2011. Id.

         Plaintiff believed that her request for a videophone had been approved by the Navy in August 2011, but also understood she could not return to work until such videophone had been installed. Id. (citing Excerpts Trial Tr. 22-23, ECF No. 334; Excerpts Trial Tr. 300, 308, ECF No. 332; Trial Tr. 7, ECF No. 358; Agreed Ex. 55, 30). But, because of numerous challenges involving technology compatibility and lack of effective communication, installation was not accomplished by October 2011. Id. As explained in the Court's September 8, 2016 Opinion and Order, after Plaintiff communicated with TCA and the Navy between August and October 2011 about her request for accommodation, in October 2011, Plaintiff again submitted her requests for accommodation on a form provided to her by the Navy. Id. at 4 (citing Sept. 2016 Op. at 6-7). The Navy contended that it relayed several accommodation offers to Plaintiff, through TCA, and that on December 16, 2011, TCA relayed one of these offers, involving the Virginia Relay Service that works with TTY phones, to Plaintiff. Id. (citing Navy's Opening Br. 6-7, ECF No. 348). The Navy contended that this was an offer of TTY at the Military Acute Care Department ("MACD") clinic, and that it was a reasonable accommodation. Plaintiff responded by asserting that the December 16, 2011 email from TCA was not a formal accommodation offer because it did not comply with Navy procedures and it did not come from an authorized decision-maker. Id. (citing Pl.'s Resp. Br. 15-16, ECF No. 359). Moreover, Plaintiff contended that she still believed in December 2011 that the Navy had agreed in August 2011 to provide her with a VRS, that the Navy was trying to make such arrangements, that 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. Id. Plaintiff contended that a reasonable juror could conclude that the Navy did not offer TTY until June 15, 2012, when Plaintiff received a May 24, 2012 official letter from an authorized decision-maker offering a TTY, and also offering as an additional/alternative accommodation a specific model of videophone she had earlier requested. Id. at 5. Moreover, Plaintiff contended that even if the December 16, 2011 email was an actual accommodation offer, it was not a reasonable accommodation. Id.

         After further communication from December 2011 through July 2012, and with no notification that an agreed-upon videophone was installed and functional, Plaintiff resigned from TCA on July 27, 2012, and communicated her resignation to the Navy on August 9, 2012, formally rejecting the Navy's offer of accommodation. Id. (citing Sept. 2016 Op. at 10) . While she was unable to return to work at Sewells Point Clinic, Plaintiff began to seek work elsewhere. Sept. 2016 Op. at 11. At the time that she communicated her resignation to TCA, Plaintiff had already begun working at other medical facilities and continued doing so after her resignation from TCA. Id. at 11-15.

         On December 19, 2013, Plaintiff brought suit against TCA and the Navy based upon their alleged failure to reasonably accommodate Plaintiff's disability. Compl., ECF No. 1. Plaintiff sought compensatory damages for lost wages, future lost earnings and benefits, emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. Id. at 15. Plaintiff also requested injunctive relief to compel the Navy to institute "more responsive processes, [and] to provide training on issues related to reasonable accommodations, " punitive damages, attorney's fees and costs, and pre-judgment and post-judgement interest. Id. On the morning that the jury trial began, February 16, 2016, co-defendant /joint employer TCA settled with Plaintiff, leaving the Navy as the sole defendant. Nov. 2016 Order at 5 (citing Trial Min., ECF No. 304; Stipulation of Dismissal, ECF No. 18).

         Following a two-week jury trial, the jury returned a verdict in Plaintiff's favor, finding that the Navy failed to provide Plaintiff a reasonable accommodation, but awarded Plaintiff no compensatory damages. Verdict Form, ECF No. 314. Following the conclusion of the trial, the Court heard additional evidence on Plaintiff's request for equitable relief. On September 8, 2016, after the issue of equitable relief was fully briefed, the Court 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. Sept. 2016 Op. at 80 (internal citations omitted). The Court requested the Clerk of Court to enter judgment on the jury's verdict, id. at 81, and judgment was entered the same day, J. in a Civ. Case, ECF No. 338. Plaintiff thereafter filed a motion for attorney's fees, ECF No. 340, and, following the Court's ruling on the Navy's motion for judgment as a matter of law, ECF No. 3 68, Plaintiff filed a motion for supplemental attorney's fees, ECF No. 372. Having been fully briefed, this issue is ripe for review.

         II. Standard for Attorney's Fee Award

         A. Entitlement to Fee Award

         Traditionally, under the "American Rule, " each party in a lawsuit bears its own attorney's fees unless a statute explicitly authorizes otherwise. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The instant civil case was filed pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 791, efc seg., seeking to remedy an alleged failure to reasonably accommodate Plaintiff's medical disability. Compl. ¶ 1. Congress authorized courts to award reasonable attorney's fees to the "prevailing party" under this statute, see 29 U.S.C. § 794a(b), and it is undisputed that Plaintiff qualifies as a "prevailing party" in this case, Farrar v. Hobby, 506 U.S. 103, 111 (1992) (holding that a "prevailing party" is one who has obtained "at least some relief on the merits of his claim" such that the legal relationship between the parties has changed);[2] 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 "reasonable attorney's fee" is in this case. 29 U.S.C. § 794a.

         B. Calculation of "Reasonable" Fee Award

         The Fourth Circuit has outlined a 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." Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). To ascertain what is 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 v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014) (footnote omitted).

         The calculation of a lodestar figure is " [t]he most useful starting point for determining the amount of a reasonable fee, " because it "provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Hensley, 461 U.S. at 433; see Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (characterizing the lodestar calculation as "the guiding light of . fee-shifting jurisprudence") (quotation marks and citation omitted). The fee applicant bears the burden of proving the reasonableness of the hours expended and the requested hourly rates, which generally requires submission of the attorney's own affidavit and timesheets as well as "'satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which [the attorney] seeks an award.'" Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008) (quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). In evaluating the submissions in order to determine both a reasonable rate and a reasonable number of hours expended, the lodestar analysis is guided by the following twelve factors (the "Johnson factors"):

(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.

Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978) (adopting the twelve factors identified by the Fifth Circuit in Johnson v. Georgia Highway Express Inc., 488 F.2d 714 (1974)); cf. Perdue, 559 U.S. at 550-52 (explaining why the objective lodestar approach is superior to the subjective approach outlined in Johnson, but failing to hold that it is improper to be informed by the Johnson factors when performing a lodestar analysis). Because precedent of the United States Court of Appeals for the Fourth Circuit requires this Court to be guided by the Johnson factors in determining the lodestar figure, "to the extent that any of the Johnson factors has already been incorporated into the lodestar analysis, " such factor(s) should not later be considered a second time to make an upward or downward adjustment to the lodestar figure because doing so would "inappropriately weigh" such factor. McAfee, 738 F.3d at 91.

         The second step in the fee calculation procedure requires the Court to exclude fees for counsel's time spent on unsuccessful claims that are unrelated to the successful claims. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 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, the claimsuwill involve a common core of facts or will be based on related legal theories." Hensley, 461 U.S. at 435. In such latter circumstance, "[m]uch of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis, " with the nature of the lawsuit precluding it from being "viewed as a series of discrete claims." 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.'" Grissom, 549 F.3d at 321 (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)). It is appropriate for the Court to reduce an award at this third step of the analysis if "'the relief, however significant, is limited in comparison to the scope of the litigation as a whole.'" McAfee, 738 F.3d at 92 (quoting Hens ley, 461 U.S. at 439-40). "What the court must ask is whether 'the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.'" Id. (quoting Hens ley, 461 U.S. at 434) . Accordingly, when "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount, " even in cases "where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith." Hens ley, 461 U.S. at 436. An attorney's fee award is therefore not driven by whether it was reasonable to file suit or whether plaintiff's counsel litigated the case "with devotion and skill"; rather, "the most critical factor is the degree of success obtained." Id.

         III. Discussion

         A. Entitlement to Fee Award

         It is undisputed that Plaintiff is a "prevailing party." Def.'s Resp. Br. 6. As a prevailing party, Plaintiff requests over $1.2 million in attorney's fees:

Sullivan Law Group - Litigation

$1, 002, 481.00

Sullivan Law Group - Fee Petition

$40, 446.50

Crenshaw, Ware & Martin

$16, 227.00

David Pearline[3]

$64, 968.75

Sullivan Law Group - Supplemental Motion

$76, 895.50

David Pearline - Supplemental Motion

$15, 875.00


$1, 216, 893.75

Pl.'s Opening Br. 16-17, ECF No. 341; Pl.'s Suppl. Opening Br. 2-3, ECF No. 373. Status as a prevailing party makes Plaintiff "eligible for, rather than entitled to, an award of attorney's fees." Mercer v. Duke Univ., 401 F.3d 199, 203 (4th Cir. 2005). The Navy contends that Plaintiff only obtained "nominal damages" because she failed to obtain the significant monetary damages that she sought, 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." Damages, Black's Law Dictionary (10th ed. 2014); see Farrar, 506 U.S. at 112 (recognizing that nominal damages are awarded to vindicate legal rights while substantial damages are awarded "to compensate actual injury"); McAfee, 738 F.3d at 88 n.6 ("An award of nominal damages signifies [violation of a legal] right but has not proved actual loss."); W. Insulation, LP v. Moore, 316 F.App'x 291, 298 (4th Cir. 2009) ("Nominal damages do not, by-definition, compensate the aggrieved party-they merely recognize that the aggrieved party's rights have been violated."); Price v. City of Charlotte, N.C. , 93 F.3d 1241, 1246 (4th Cir. 1996) ("A plaintiff's failure to prove compensatory damages results in nominal damages, typically one dollar."). When a plaintiff prevails but "recovers only nominal damages because of [a] failure to prove an essential element of [the] claim for monetary relief, the only reasonable fee is usually no fee at all, " because the recovery of only nominal damages indicates that the legal victory was purely "technical" or "de minimis." Farrar, 506 U.S. at 115 (emphasis added) (internal citation omitted); see also 29 U.S.C. § 794a ("[T]he court, in its discretion, . . . may allow the prevailing party, a reasonable attorney's fee.") (emphasis added).

         However, not every award of nominal damages represents a merely de minimis or purely "technical" legal victory. As Justice O'Connor explained in her Farrar concurring opinion, "[not] all nominal damages awards are de minimis. Nominal relief does not necessarily a nominal victory make." Farrar, 506 U.S. at 121 (J. O'Connor, concurring). To identify when a party who has obtained only a nominal damages award has nevertheless still obtained more than a de minimis or technical legal victory, Justice O'Connor offered three factors for courts 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; and (3) the public purpose served by the litigation. Id. at 122. 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 unusual case that does warrant an award of attorney's fees." Mercer, 401 F.3d at 204; see also Doe v. Kidd, 656 F.App'x 643, 656 (4th Cir. 2016), cert, denied, No. 16-530, 2017 WL 69234 (U.S. Jan. 9, 2017) (applying Justice O'Connor's three-factor test to a case in which the plaintiff prevailed but received no damage award); Kane v. Lewis, No. 16-1140, 2017 WL 128503, at *5 (4th Cir. Jan. 13, 2017) ("The district court abused its discretion by failing to evaluate the three factors this court has adopted for determining whether a nominal-damages award warrants attorney's fees.").

         Here, the Navy contends that Plaintiff should not be awarded attorney's fees because application of Justice O'Connor's three factors shows that Plaintiff received only "nominal damages" and achieved only a de minimis victory. Def.'s Resp. Br. 6-7. According to the Navy, Plaintiff's recovery was "nominal" and represented a de 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 legal issue, and the litigation achieved no public purpose. Id. at 3, 6-14. While it is true that the jury returned a verdict in Plaintiff's favor but awarded her no compensatory damages, the Court awarded Plaintiff back pay damages of $40, 842.42, plus pre-judgment and post-judgment interest, for her lost wages between February 26, 2012 and July 27, 2012. Sept. 2016 Op. at 80. 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 76, Plaintiff obtained more than a mere nominal damage award, see Farrar, 506 U.S. at 121 (plaintiff who requested $17 million and received $1 only received nominal damages); Mercer, 401 F.3d at 202 ($1 dollar was a nominal damage award); cf. McAfee, 738 F.3d at 88 n.6 (rejecting defendant's argument that a damages award was nominal when, "though small in dollar amount, " the award nevertheless represented the entirety of the plaintiff's out-of-pocket expenses).

         As Plaintiff is a prevailing party who obtained more than an award of nominal damages, the Court is not required to consider whether her legal victory was more than de minimis.[4]Therefore, the Court moves on to the issue of Plaintiff's entitlement to reasonable attorney's fees. See Farrar, 506 U.S. at 114 (internal quotation marks omitted) (noting that once a plaintiff is entitled to attorney's fees, "the degree of the plaintiff's overall success goes to the reasonableness of a fee award").

         B. Calculation of "Reasonable" Fee Award

         1. Lodestar Analysis

         The first step in calculating a reasonable fee is to determine the "lodestar" figure "by multiplying the number of reasonable hours expended times a reasonable rate." McAfee, 738 F.3d at ...

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