Supinger v. Virginia

ROBERT E. LEE SUPINGER, JR., Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

Civil Action No.: 6:15-cv-17

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA LYNCHBURG DIVISION

March 4, 2019

By: Hon. Robert S. Ballou United States Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Robert E. Lee Supinger, Jr., ("Supinger") filed this action related to grievances alleged during and after his employment with the Virginia Department of Motor Vehicles ("DMV"). Supinger initially alleged fourteen claims against multiple Defendants associated with the DMV. Supinger sought injunctive relief and reinstatement; $5,000,000 in compensatory damages; $5,000,000 in liquidated/punitive damages; $250,000 in back pay; $1,000,000 in front pay; and pre-judgment interest, costs, and attorneys' fees. Dkt. 23. The district court denied qualified immunity and granted Supinger summary judgment as to the due process claims, but dismissed all other asserted claims. The Fourth Circuit affirmed the district court in an interlocutory appeal and remanded the case for damages. Thereafter, the parties reached a confidential settlement agreement following mediation to resolve all claims. There can be no doubt that this contentious case was hard-fought at every step of the litigation. Ultimately, Supinger secured a substantial settlement and is the prevailing party, thus entitling him to attorneys' fees under 42 U.S.C. § 1988.

The district court has referred to me Supinger's motions for attorneys' fees and costs. Dkts. 211, 213. Supinger now seeks $806,882.50 in attorney's fees and $3,415.51 in costs, plus interest at the judgment rate. Dkt. 212. Supinger seeks additional attorney's fees in the amount of $37,740.00 incurred from additional work since filing his original motion, for a total claim of attorneys' fees of $844,622.50.¹ Dkt. 223. Specifically, the petition includes fees from both Supinger's original counsel and the attorneys who prosecuted the case when the original counsel developed a conflict and had to withdraw.

 Attorney Hours Billed Additional Hours Billed for Fee Petition Rate Total Fees Sought  Terry N. Grimes  1596.7  78.1  $400.00  $669,920.00  Brittany M. Haddox  377.8  11.3  $250.00  $97,275.00  Paralegal Services  73.9  0  $125.00  $9,237.50             Melvin E. Williams  83.4  10.5  $350.00  $32,865.00  Micah D. Wright  59.5  0  $225.00  $13,387.50  Paralegal Services  9.4  0  $125.00  $1,175.00             Andrew D. Meyer  83.05  0  $250.00  $20,762.50    TOTAL: $844,622.50 

Defendants DMV, Richard Holcomb, Joseph Hill, and Jeannie Thorpe (collectively, "Defendants") partially oppose the motion for attorneys' fees and expenses and request that the Court substantially reduce any award. Dkt. 221. Having considered the record, legal arguments submitted, and applicable law, I recommend that the District Court GRANT Supinger's Motion for Attorneys' Fees (Dkt. 211), and Motion for Bill of Costs (Dkt. 213), and award $488,962.60 in attorneys' fees and $2,704.90 in costs, for a total award of $491,667.50.

I. Factual and Procedural Background²

Plaintiff Robert E. Lee Supinger, Jr., was a former Assistant Special Agent in Charge at the Virginia Department of Motor Vehicles ("DMV") Lynchburg office. Supinger was unhappywith several aspects of his workplace at the DMV, which he raised with his direct supervisors and the DMV administration. He was suspended on February 28, 2012, and terminated on April 9, 2013. Supinger filed this action on July 8, 2015, asserting fourteen claims against various defendants related to his employment with the DMV and subsequent termination, most of which the District Court dismissed for failure to state a claim or granted summary judgment for Defendants.³ Relevant here is Supinger's claim under 42 U.S.C. § 1983 that Defendants denied him procedural due process related to his efforts to grieve the termination of his employment in violation of the Fifth and Fourteenth Amendments against four named Defendants.⁴ The District Court granted summary judgment in favor of Supinger on July 20, 2016, on his procedural due process claim, finding that Supinger's due process rights were violated in connection with his termination and the subsequent grievance process. Dkt. 141. Defendants filed an interlocutory appeal, arguing that they were entitled to qualified immunity. Dkt. 150. The Fourth Circuit affirmed the judgment and remanded this action to the District Court on the question of damages. Dkt. 198. The parties thereafter resolved the damages question in mediation. Dkt. 212, 1-2. Supinger's motions for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 and Federal Ruleof Civil Procedure 54(d) followed. Dkts. 211, 213. Supinger retained two sets of counsel in this case, and the fee petition accounts for all attorneys that were involved.⁵

II. Analysis

"In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title," section 1988 permits "the court, in its discretion, [to] allow the prevailing party . . . reasonable attorneys' fee[s] as part of the costs." 42 U.S.C. § 1988(b). The plaintiff bears the burden of demonstrating that the amount of fees sought is reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The parties agree here that Supinger is the prevailing party for purposes of an award of attorneys' fees and costs. See Dkt. 224.

A. Lodestar Calculation

The Fourth Circuit follows a three-step process to determine a reasonable attorneys' fee award. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). First, the court determines the lodestar figure, which is calculated by multiplying the reasonable number of hours expended by the reasonable hourly rate. Id. Courts evaluate the reasonableness of the hours expended and rates sought on fee petitions under the lodestar method using the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), as adopted by Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978). See Robinson v. Equifax Info. Servs., 560 F.3d 235, 243-44 (4th Cir. 2009).⁶ A strong presumption exists that a properlycalculated lodestar figure is reasonable. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). That presumption may be overcome only in rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee. Id. Second, the court subtracts fees for hours spent on unsuccessful claims related to successful claims. McAfee, 738 F.3d at 88. Finally, the court awards a percentage of the remaining amount to the plaintiff, depending on the degree of success of the prevailing party's claims. Id.

i. Hourly Rates

Supinger seeks rates of $400.00 per hour for attorney Terry Grimes and $250.00 per hour for attorney Brittany Haddox.⁷ Dkt. 212, at 18. The hourly rate included in an attorneys' fees request must be reasonable, which is generally determined by the prevailing market rates in the relevant legal community for the type of work for which an award is sought. McAfee, 738 F.3d at 91. The relevant community is usually that in which the district court sits. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 179 (4th Cir. 1994). Determining the prevailing rate in the relevant community "may be established through affidavits reciting the fees of counsel with similar qualifications, information concerning fee awards in similar cases, and/or specific evidence of counsel's billing practice." Freeman v. Potter, No. 7:04cv00276, 2006 WL 2631722, at *4 (W.D. Va. Sept. 13, 2006) (citing Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987)).

This case was filed in the Lynchburg Division of the Western District of Virginia. Supinger states that "[f]ew employment discrimination cases are successfully prosecuted in the [W]estern [D]istrict of Virginia." Dkt. 212, at 5. Because Supinger agrees that he prosecuted thiscase in the Western District of Virginia, I find the relevant market is Central and Southwest Virginia.

Supinger supports his attorneys' rates by focusing on three Johnson factors: the skill required by his attorneys, the difficulty of the questions raised in this litigation, and (to some extent) the results obtained. In addition to claiming that few employment discrimination cases are successful in this District, Supinger further claims that an award of summary judgment, affirmed by the Fourth Circuit, is "extremely rare," and that the law in the area of employment law is so fluid that it changes daily and requires attorneys to constantly research appellate decisions. Dkt. 212, at 5. Supinger, however, fails to include any evidence for those contentions. I do not find that this area of the law is so complicated as to require a premium on the prevailing market rate simply because it is rapidly changing. Skilled attorneys must routinely keep themselves apprised of changes in their areas of practice as part of their ongoing duties to their clients and the courts.

Supinger includes a number of affidavits from other employment law attorneys who are familiar with Mr. Grimes and Ms. Haddox. Those attorneys confirm the rates for Mr. Grimes and Ms. Haddox in this case. See Dkt. 212, Ex. 2. Recent fee awards in similar cases are helpful in shedding additional light on the rates. Mr. Grimes and Ms. Haddox were counsel for a plaintiff in a recent Title VII civil rights case, in which Judge Conrad found that rates of $350.00 and $225.00 for Mr. Grimes and Ms. Haddox, respectively, to be reasonable after considering their backgrounds and similar affidavits. Brown v. Mountain View Cutters, LLC, 222 F. Supp. 3d 504, 513 (W.D. Va. 2016). Additionally, in a companion case to Supinger's arising from (at least partially) the same set of facts, Mr. Grimes submitting an affidavit in which he endorsed a fee of $350.00 for lead counsel and $225.00 for counsel's associate as...