United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
Mark S. Davis UNITED STATES DISTRICT
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.
Factual and Procedural Background
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"); 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
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.
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.
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.
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).
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.
Standard for Attorney's Fee Award
Entitlement to Fee Award
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); 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.
Calculation of "Reasonable" Fee Award
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."
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013),
as amended (Jan. 23, 2014) (footnote omitted).
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
(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.
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.
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."
Entitlement to Fee Award
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
Crenshaw, Ware & Martin
Sullivan Law Group - Supplemental Motion
David Pearline - Supplemental Motion
$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.
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).
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
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).
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.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").
Calculation of "Reasonable" Fee Award
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 ...