ANG EL MEDINA,

P laintif f,
v. DISTRICT OF COLUMBIA, Defendan t. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 97-594 (JM F )

MEMORAN DUM OP INION On J uly 29, 2008, followinga jury trial, a ve rdict wa s rende red in fa vor of plaintiff a

nd ag ainst the District of Columbia (“the D istrict”) in the amount of $180,000.00 with interest, attorney ’s fe es and c osts. See J udg ment [#132] . On J uly 1, 2011, the cour

t of appe als order ed this Court t o require plaintiff to either a cce pt a $90,000 re mitti tur or a ne w trial. Medina v. District of Columbia, 643 F.3d 323, 330 (D .C. Cir. 2011). Plainti ff a ccepted the re mitti tur on J uly 8, 2011. Praec ipe [#170] . The only issue rema ining be fore this Court i s Plainti ff’ s Motion for Attorne y ’s Fe es [#173]
. DISCUSSIO N I
. Plaintiff is Entit led to an Awa rd of Attorne y ’s Fe es Attorney ’s fe es may

be aw arde d to a plaintiff who pr evails in an a ction broug ht under Title VI Iof the Civil Ri g hts Act of 1964. 42 U.S.C. § 2000e-5( k). “The purpose of this 1 provision is to encourag e private litigants to ac t as ‘private attorne y s g ener al’ on be half of

All refe renc es to the United States Code or the Code of F eder al Regulations are to the 1 elec tronic ver sions that appear in Westl aw or

L exis
.enfor ceme nt of civil rig hts laws.” Palmer v. Rice , No. 76-CIV-1439, 2005 WL1662130, at *9

(D.D.C. Jul y

11, 2005) (quotingL aff

ey v. Nw. Airlines, Inc., 746 F .2d 4, 11 (D.C. Cir. 1984)) (interna l quotations omi tted). F urthermor e, to safe guard “ ‘ef fec tive acc ess to the judicial proce ss’ for pe rsons with civil rights grieva nces . . . a preva iling plaintiff ‘ should ordinarily
rec over a n attorney ’s fe e unless spec ial circ umstances would r ender such an a war d unjust.’” Turner v. District of Columbia Bd. of E lections and Ethics, 354 F .3d 890, 895 (D.C. Cir. 2004) (interna l quotations and citations omitt ed). At a hea ringheld on J anuar

y 31, 2012, the def

endant c oncede d that plaintiff is entitled to
an aw ard of

fee s based on the 2011 L aff ey rate s. Thus, the only

question prese nted is whether 2 the def endant’ s claim that plaintiff is seekingcompensa tion for unsucc essful ef

forts should modify the awa rd of those f

ees. I I
. Plaintiff is Not Entit led to Compensation for Eff orts Unre lated to His Succe ss A. Controlling Authority as to Unsucc essful Claims The Supreme Court rec ently considere d the issues prese nted by a plaintiff who ultimately preva iled y et neve rtheless a sserted c laims that were unsucce ssful:

[I ]n t he re al world, litigation is m ore c omplex , involving multiple claims for r elief that impli cate a mix of leg al theorie s and have differ ent merits. Some claims succe ed; others f ail. Some char g es are frivolous; others (e ven if not succ essful) have a r easona ble basis. In short, litigation is messy , and cour ts must deal with this untidiness in awardingfee s. Fox v. Vice, 131 S.Ct. 2205, 2214 (2011).

The L aff ey matrix provides a f

ee sc hedule f

or attorne y s based on their y ear s of 2 experience , adjusted upwa rd by chang es in the Consumer Price Index. The L aff ey rate s have been a war ded in Title VI Icase s. E.g ., Hansson v. Nor ton, 411 F.3d 231, 236 (D .C. Cir. 2005). 2The Court then indicated that the pre vailing pa rty must be compensate d for a ll the time her attorney

spent in achie ving the result obtained, e ven if that pa rty failed to pre vail on “eve ry contention.” I d. Fur

thermore , work on the unsuc cessf ul claim must relate to the wor k on the
succe ssful claim, in order to merit such compensation. “The fe e aw ard, of course , should not reimburse the plaintiff for work pe rfor

med on claims that bore no relation to the gr ant of re lief. Such work ‘c annot be de emed to have been e x pended in pur suit of the result ac hieved.’ ” I d. (quotingHensley

v. Ecke rhar

t, 461 U.S. 424, 435 (1983). As the Supreme Court stated in Hensley : In some ca ses a plaintiff ma y prese nt in one lawsuit distinctly differ ent claims for

relief that are based on diff

ere nt fac ts and leg al theories. In such a suit, eve n wher e the c laims are br oug ht ag ainst the same de fenda

nts–often an institution and its officers, a s in this case –counsel’s w ork on one c laim will be unrelate d to his work on another claim. Acc ording ly , work on a n unsucce ssful claim ca

nnot be dee med to have be en “e x pended in pur suit of the ultimate result achie ved.” D avis v. County of L os Ang eles, 8 E.P.D. ¶ 9444, at 5049 (CD Cal. 1974). The cong ressional intent to limitawa rds to preva iling par

ties require s that these unre lated cla ims be treate d as if they had bee n raised in se parate lawsuits, and ther efor e no fe e may be aw arde d for se rvice s on the unsucce ssful claims. I d. at 434-35. This Circuit has theref

ore c oncluded that, whe n separ ate leg al claims ar e asse rted but ar e based on the same fa cts, lack of succe ss on one does not mea n that the time spent on other
unsucce ssful claims should be disallowed. Willi ams v. First Gov’ t Mortg. & Investors Corp., 225 F.3d 738, 746 ( D.C. Cir. 2000) (aw ard of fee s for wor

k on all claims aff

irmed whe n claims wer e not disti nctly

differ ent); Goos v. Nat’l Ass’n of Rea ltors, 997 F.2d 1565, 1569-70 ( D.C. Cir. 1973) (c laims of brea ch of c ontrac t and violation of Human Rig hts Act based on the same

3reta liatory discharg e we re not distinct); Morg an v. District of Columbia, 824 F.2d 1049, 1065- 67 (D.C. Cir. 1987) (a ll claims were related bec ause a ll were based on D istrict’s deliberate indiffer ence to a prisoner ’s safe ty). See a lso J udicial Watch v. DOC, 470 F .3d 363 (D.C. Cir. 2006) (c ompensation for a ll discovery eff orts, while unsucc essful, per mitted when all re lated to Fr eedom of

Information Ac t claim); Amer. Petr oleum Inst. v. EPA, 72 F.3d 907, 911-12 (D .C. Cir. 1996) (althoug h plaintiffs argued five grounds for the invalidity of the re gulation, they
asser ted a sing le indivisibl e cla im–the invalidity of the re gulation). I t is only when the
unsucce ssful claim is based on a differ ent set of f

acts a nd a diffe rent leg al theory that Hensley require s that the fee s pertainingto the unsucce ssful claim be disallowed. T rout v. Sec. of the Navy , 540 F.3d 442, 447 ( D.C. Cir. 2008) (unsucc essful cla im for pre -judg ment interest distinct from succ essful sexual discrimination claim); Georg e Hy man Const. Co. v. Brooks, 963 F.2d 1532, 1540 (D.C. Cir. 1992) (total and pa rtial disability

claims wer e base d on differ ent fa ctual theories)
. The followingchar

t list s the claims made in plaintiff’ s second amended c omplaint, which was filed on O ctober

29, 2002, and their ultimate outcome s. Count I Denial of

due proce ss Fa iling to enf orce the September 1995 Summary

Deter mination and Orde r by the District of Columbia Offic e of H uman Rights (O HR), which conc luded that MPD had discriminated ag ainst plaintiff on the basis of his national orig in Dismissed on J une 6, 2007

Count I I Denial of

due proce ss Fa iling to hold a hea ringon plaintiff’s sec ond OHR complaint befor e makinga findingof no probable cause Dismissed on J une 6, 2007

4Count I I I Violation of Title VI I and 42 U.S.C. § 1981 Transf err ing pla intiff from the Offic e of I

nterna l Affa irs (OIA) to street duty

afte r his 1994 promotion J ury verdic t for the District

Count I V Violation of Title

VI I and 42 U.S.C. § 1981 Denial of plaintiff’s re quest to be transfe rre d back to OIA J ury verdic t for the District Count V Retaliation in

violation of 42 U.S.C. § 1981 and D.C. Human Rights Act Fa ilure to transfe r plaintiff ba ck to

OIA Jury verdictfor plain tiff in the am ount of

$180,000 P laintif f accepted court- ordere d rem ittitur of $90,000 Count VI Denial of

due proce ss Fa iling to enf orce November

1, 1995 OHR L etter of Deter mination, which found probable cause that plaintiff was subjected to unlaw ful discriminatory

and re taliatory employ ment prac tices Dismissed on J une 6, 2007

Count VI I Retaliation in

violation of 42 U.S.C. § 1981 Repeated denials of pla intiff’s

reque st to be transfe rre d back to OIA Dismissed on J une 6, 2007 Count VI I I Denial of

due proce ss Fa iling to re instate plaintiff within

30 day s of his acquittal on criminal cha

rg es Dismissed on J une 6, 2007 Count I X Retaliation in

violation of 42 U.S.C. § 1981 Refusal to re turn plaintiff to full

duty and pay within 30 day s of his acquittal on cr iminal charg es J ury verdic t for the District

5Count X Discrimination and reta liation in violation of 42 U.S.C. § 1981 Denials of pla intiff’s re quests to

participate in the Take Home Cruiser Prog ram a

nd a bre ak in to plaintiff’s off

ice Partially dismiss ed on J une 6, 2007 (solely that portion alleg ing a reta liatory office brea

k in) Discrimination and reta liation claims respe ctingTake Home Cruiser Prog ram a

nd office brea k in withdrawn by J oint Moti on to Amend the Pre trial Statement [#119] at 1. Def endant District of

Columbi a’s Opposition to Plainti ff’ s Motion for Attorney s’ Fe es [#174] at 3-4. Iconclude that the District is corr ect insofa r as it asser

ts that tim e spent on Counts I , I I , VI , and VI I Iwer e pre mised on an indepe ndent violation of due proc ess and we re ba sed on the District’s fa ilure to 1) enf orce an OHR finding ; 2) hold a hea ringbefor e dismissing plaintiff’s second O HR complaint; 3) enfor ce a n OHR letter of

deter mination; and 4) reinstate plaintiff within 30 day s of his acquittal. These claims, and the f acts upon whic h they

wer e base d, are entirely differ ent from the r etaliation and discr imination claims that were submitted to the jury
. On the other

hand, counse l’s work on Counts I I I , I V, IX and X (befor e it was withdra wn) wa s premised on what plaintiff claimed we re a pattern of

discriminatory

and re taliatory

acts a g ainst him based on his national orig in, and his complaints of discrimination. Specifica lly , plaintiff’s first motion for pa rtial summary

judgme nt sought a

deter mination that plaintiff’s due pr ocess r ights we re violate d by OHR when it dete rmined, without holding a hear ing, that he was not re taliated ag ainst for filinga discrimination claim. Memora ndum in 6Support of Plaintiff’s Motion for Partial Summary J udg ment [#8-1] at 1. That motion was denied without pre

judice to filinga re newe d motion, so that pre cise re fer ence s to deposition testimony could be pr ovided. See Or der [#23] at 1. Plaintiff’s second motion for pa rtial summary

judgme nt proffe red the same a rgument as the first, that plaintiff wa s denied a proper ty rig ht when the OH R made a de cision without first holding a hear ing. See Memorandum in Support of Plaintiff’s Motion for Partial Summary J udg ment [#24-1] at 1. This motion was denied, not on the merits of plaintiff’s due pr ocess claim, but rathe r, on the grounds that plaintiff’s c laim was base d on disputed fac ts. Memorandum Opinion and Orde r [#30] at 11. In plaintiff’s third motion for par tial summary

judgme nt, plaintiff argued that his due proce ss rig hts were violated when the District failed to c omply with the OHR’s September 19, 1995 decision aw ardingplaintiff bac k pay and over time compensation and ma ndatingthat the District promise not to retaliate ag ainst him. P laintiff’s [Third] M otion for Partial Summary J udg ment [#91] at 17-18. As with plaintiff’ s earlier motions for par tial summary

judgme nt, this motion was also denied. Wit h respe ct to Count I , the Court conclude d that plaintiff’s cla im was not a substantive due proc ess claim but rather a claim that a D.C. a g ency failed to follow D.C. lawand, as suc h, should have be en brought before the local D.C. c ourts. Opinion [ #101] at 17. Finally , plaintiff’s motion for a pr eliminary injunction was filed for

the purpose of enjoining the District from “taking a ny further adver se ac tion ag ainst the plaintiff while the instant case [was] pending .” Plaintiff’s Motion for Preliminary Injunction [ #71] at 1. Specifica lly , plaintiff soug ht to prevent the D istrict from proc eedingwith a termination hea ring
7based on two c riminal indictments while the curr ent suit, which alleg es discrimination and

reta liation, was pending . Memorandum Opinion and O rder [#83] at 1-5. The Court denied the motion on the gr ound that plaintiff fa iled to establish that he would suffe r irre para ble har m if an injunction were not gr anted. The Court noted that beca use “the [OHR had] y et to make a nd may
never make, a final dec ision to t erminate him, and [because] the har ms alleg ed ar e almost exclusively

financ ial,” ther e wa s insufficient support for a pre liminary

injunction at this st ag e of the proc eeding s. I d. at 13. As is clear

from the a

bove re view, the wor

k perf ormed on the motions just specified a nd explained, did not advance in any way his success be fore the jury . In findingfor plaintiff a s to Count V, the jury

found that plaintiff e stablished by a prepondera

nce of the evidenc e that 1) “ the denial of his application to return to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white offic er de nied him equal prote ction of the law s by reta liating a g ainst him for havingfiled complaints complainingof discrimination on the basis of his national orig in”; 2) “the denial of his application to return to the O ffice of Interna l Affa irs in 1998 and the sele ction of a white office r wa s based on a

custom or pra ctice of

reta liation ag ainst persons who c omplain of discrimination based on national orig in”; 3) “a rea sonable e mploy ee w ould have f ound the MPD’s denial of his application to return to the Off ice of Interna l Affa irs in 1998 and the selec tion of a white off

icer a mater ially

adver se ac tion”; and 4) “ the MPD’s denial of his application to re turn to the Off ice of Interna l Affa irs in 1998 and the sele ction of a white office r was done in retaliation for his making c omplaints of discrimination.” Ver dict For m [ #131] at 3-4. Count V of plaintiff’s sec ond amende d complaint was foc used on the District’s r esponse to plaintiff’s application to transfer ba ck to OIA followingplaintiff’s cla im that he was
8discriminated ag ainst on the basis of his national orig in (Puerto Rico). The focus of plaintiff’s motions for partial summary judgme nt, on the other ha nd, was on the D istrict’s alleg ed fa ilure to comply with an OHR dete rmination. Thus, even though the OHR dete rmination was itself base d on a findingthat plaintiff had be en discriminated a g ainst beca use of his ra ce ( Hispanic), plaintiff’s summary

judgme nt motions wer e base d on an entire ly differ ent leg al theory

–that plaintiff had a

proper ty interest in the right to have the OH R’s order followed by

the District and that the District denied his substantive due proce ss rig hts by failingto comply

with that order. See [#91] at 14-15. Finally , althoug h the motion for a pr eliminary injunction focused, a s it had to, on the standard g overningthe impositi on of a pr eliminary injunction, which includes an a naly sis of whether the plaintiff is likely

to preva il on the merits, plaintiff states only that “the be st evidence of this likelihood [ of succ ess] is t he irre futable f act that on two oc casions Medina has alre ady preva iled, provingthat he wa s the victim of discrimination at the hands of the Def endant.” [#71] at 10. B ut that he was ultimately succe ssful befor e the jury does not somehow make the work on the pre liminary

injunction, based on diffe rent fa cts and leg al theorie s, compensable
. Ithere fore conclude that all of the time spent on the f ollowing motions, which totals 106 hours, must be disallowed: 3 J une 16, 1997 - J une 20, 1997 “Dr aft a nd revie w of Plaintiff’s Motion for Par tial Summary J udg ment.” 25 hours
J une 23, 1997 Plaintiff filed Plaintiff’s Motion for Partial

Summary J udg ment [#8]
. n/a

The de scriptions of the wor k perf ormed by plaintiff’s counse l are taken f rom his time 3 sheets. See [#173-5]. 9October

20, 1997 “Rec eived a nd revie wed De fenda

nt’s Opposition to Plainti ff’ s MSJ .” 2 hours October 21, 1997 - October 28, 1997 “Resea

rch r eg ardingreply .” 10 hours October 30, 1997 “Dr afte d reply .” 3.5 hours Fe bruar y 19, 1998 - Fe bruar y 20, 1998 “Dr afte d, prepa red f iled plaintitf’s [s ic] mot ion to supplement the re cord.” 4 hours
Marc h 19, 1998 J udg e Sullivan denied [#8] at Orde r [#23]
. n/a Marc h 23, 1998 “Review ed cour t’s order /denied plaintiff’ s MSJ and g et new dates.” 0.5 hours April 20, 1998 - April 24, 1998 “Resea rch, pr epar ed re newe d Motions [ sic] for Summary J udg ment.” 25 hours April 30, 1998 Plaintiff filed Plaintiff’s [S econd] Motion for

Partial Summary

J udg ment [#24]
. n/a May 22, 1998 “Rec eived a nd revie wed De fenda

nt’s Opposition.” 3 hours Marc h 31, 1999 J udg e Sullivan denied [#24] at Memora ndum Opinion and Orde r [#30]
. n/a April 2, 1999 “Rec eived a nd revie wed c ourt’s orde r/memo denying pla intiff’s motion for summary judge ment [si c], communicated with client.” 2.5 hours

Fe bruar y 29, 2003 - Marc h 3, 2003 “Resea rch, dr aft plaintiff’ s motion for preliminary injunction.” 12.5 hours
Marc h 3, 2003 Plaintiff filed Plaintiff’s Motion for Preliminary

Injunction [ #71]. n/a
Marc h 20, 2003 “[R] eview of DC opposition t o Plaintiffs [ sic] motion for preliminary

injunction.” 3 hours
J une 2, 2003 - June 6, 2003 “Resea rch, dr aft of r eply

to DC’s opposition t o Plaintiff’s motion for preliminary injunction.” 15 hours
J uly 29, 2003 J udg e Sullivan denied [#71] at Memora ndum Opinion and Orde r [#83]
. n/a
J anuar y 18, 2005 Plaintiff filed Plaintiff’s [Third] Motion for Partial

Summary J udg ment [#91]
. n/a

10J une 6, 2007 J udg e Sullivan denied [#91] at Opinion [#101]
. n/a

C. Document Revie w The District c ontends that plaintiff’s re quest for r eimbursement of $46,158.75 for 93.25 hours of “ Document- revie w-Summation” is excessive, and should be re duced by 60%. [#174] at 16. Thus, the District contends that plaintiff should be awa rded $18,463.50 r ather

than $46,158.75. I d. In support of its argument, the District claims that plaintiff’s billingrec ords ar e too vague in that they

identify a par ticular task a s “Doc ument revie w-Summation,” “Review Document- Summation,” or “Review Summation documents,” w ithout providing any further detail. I d. at 16-17. Plaintiff’s c ounsel argues that he use d “Summation” and “T rial Dire ctor,” the latest trial softwa

re, in re viewingthe documenta ry evidenc e, ther eby

“savinghundred of hours of attorney

and par aleg al time” for

this task. [ #175] at 7. In its discretion, the Court will not arbitrarily reduc e the number

of hours spent on document re view but will reduc e the r ate at which that work w ill be reimbursed. Rathe r than reimbursingthat work at the hourly rate for a n attorney , the Court will use the L aff ey rate set for para leg als and law

cler ks for 2011-2012. T hus, for 93.25 hours of document re view, plaintiff will be reimburse d at a r ate of $140 per hour , for a

total of $13,055.00. D. Reduction in Awar d of Attorney ’s Fe es In its mot ion, plaintiff seeks a total of $493,746.00 in attorney ’s fe es. [#173-1] at 4. The District counter s that plaintiff is only entitled to an awa

rd of $206,790.00 in attorne y ’s fe es. [#174] at 1. Pursuant to the above analy sis and the Court’s independe nt calculation of attorney ’s fee s, provided in Attachme nt A, the Court has initially arr ived at a f

igur e of $406,991.00.

11As the Supreme Court r ece ntly emphasized, deter

mining the pr oper f

ee in a case wher e a pa

rty makes re lated unsucc essful and suc cessf ul claims is not a lapidary judgme nt. Instead, it requir es the ca ref ul exercise of discr etion by the judg e who ha s lived with the case on a daily basis. Fox, 131 S.Ct . at 2216 ( “ The e ssential g oal in shifting f ee . . . is to do rough justice, not to achieving auditing pe rfe ction. So trial courts may take into ac count their ove rall sense of a suit, and may use estimates in ca lculatingand allocating a n attorney ’s time.”). The result ac hieved is a c rucia l consideration. Hensley , 461 U.S. at 434 (Results obtained is particular ly cruc ial when plaintiff preva ils only

on some of her

claims for r elief.)
. On the one ha

nd, this was an extraordinar y case . There are (thankfully ) fe w ca ses in which one’ s client is indicted in the middle of the ca se. While every thing wor ked out ultimately to plaintiff’s bene fit, his counsel is cer tainly to be commende d and fa irly compensated for his loy alty to his client and to his persistence on plaintiff’s beha lf under e x tremely unfavor able circ umstances. Additionally , this case wa s well tried by both counsel. In my

view, the e vidence supporting pla intiff’s ca se wa s not strong a nd it took that kind of ex cellent a dvocac y to achieve the ver dict plaintiff re ceive d. Plaintiff’s “proble m” (a nice pr oblem to have) was that he has risen ra pidly and succ essfully

to the very

upper e chelons of the Police Depa rtment. The District argued compe llingly

that it was inconce ivable that plaintiff c ould have a dvance d as fa st and as far as he did if he was the vic tim of discrimination. The jury seems to have acc epted that contention, findingfor plaintiff only on his retaliation claim, and a war ding what has to be considere d a re latively

minor amount of damag es. Ac hievingthat in the fac e of pla intiff’s ra pid rise in the Police De partment a nd the g ener al wea

kness of his ca se wa s a substantial
12achie vement.

On the other

hand, the r esult achie ved wa s not very g reat. Whi le I

viewed the violations of Title VI Iand the D.C. Huma n Rights Act a s two distinct claims, the court of a ppeals re verse d me and f ound only one. Thus, plaintiff pr evailed on a single count of re taliation, which is only one of the ten counts he pr essed. He was not entitled to bac k pay and, as I have just noted, the jury awa rd wa s small. Weighing , on the one ha

nd, the excellence of plaintiff’s c ounsel’s advoc acy , his loy alty to his client over more than a de cade of litigation, and his success in sec uringa fa vorable verdic t ag ainst his failure with re spect to nine of the ten counts pre sented a s well as the limited relief plaintiff sec ured, I

believe tha

t an unadjusted a

war d of $406,991.00 is simply too gr eat. It is more than f

our times the jury

awa rd, and I cannot se e any

justification for such a

disproportion betwee n result and f

ee. I there fore will, in my

discretion, aw ard $300,00.00, a n amount that, in my view, is g ener ous to plaintiff’s counsel a nd will continue to attrac t equally competent c ounsel to future Title VI I

case s. Finally , Inote that I

am motivated to reduc e plaintiff' s counsel' s fee beca use of the likelihood that prior to J une 6, 2007, the date when Judge Sulli van dismissed plaintiff' s due proce ss claims, plaintiff' s counsel spent time workingon those unsucce ssful claims, even though that time is not reflec ted in his bill ing e ntries. While Ihave a lrea dy deducte d compensation for entries that spe cifica lly

relate to work on these due proc ess claims, I cer tainly cannot c onclude that ever y other minute prior to June 6, 2007 was spent solely on plaintiff' s discrimination and reta liation claims. Ultim ately , howeve r, plaintiff’s c ounsel bea rs the burde n of proving

his entitlement to fee s by

submitt ing de tailed entrie s that would permit the cour t to identify

the total
13amount of time spent on ea ch cla im. See Nat' l Ass'n of Concerne d Veter ans v. Sec' y of De f., 675 F.2d 1319, 1326- 27 (D.C. Cir. 1982). He re, the entries do not per mit such a distinction. There fore , Iwill reduce plaintiff’s counse l's f ee to a n amount that Iconsider f air, g iven the time spent by counsel on the c ase a

nd the re sults he achieve d. E. Costs Finally , the District ar gues that plaintiff should not be re imbursed for c erta in costs associate d with the service of subpoena s, witness fee s, and deposition transcr ipts. [#174] at 20. 4 Specifica lly , the District claims that plaintiff is not entitled to reimburseme nt for $2,188.00 in costs associate d with the following individuals, because none of the m were called to testify at trial. I d. at 20-21: Wit ness Date Subpoena F ee Wit ness Fe e Total 1. Patricia Ale x ander 7/18/08 114.00 40.00 154.00 2. Luperic o Rivera 6/23/08 40.00 40.00 80.00 3. Guy

Middleton 7/2/08 104.00 40.00 144.00 4. Tony

Giles 60.00 40.00 100.00 5. J ohn Simm ons 60.00 40.00 100.00 6. Fr ank Santiag o 60.00 40.00 100.00 7. J oshua Eder

helmer 6/26/08 100.00 40.00 140.00 8. Martha L . Herzing 6/26/08 63.00 40.00 103.00 9. J ulie Ander son 60.00 40.00 100.00

Although the District initially claims that it is seekinga re duction in costs associated 4 with deposition transcripts, it makes no furthe r mention of deposition transc ripts in its opposition and does not identify

any deposition transcript fe es in its chart, identified a s “Attac hment 4.” See [#174-1] at 5. 1410. Danny Clark Gre g g 6/26/08 100.00 40.00 140.00 11. Ray

mond Corey 7/9/08 75.00 40.00 115.00 12. Hiram Rosario 7/11/08 239.00 40.00 279.00 13. Kim Greg ory 7/1/08 140.00 40.00 180.00 14. Christopher Cummings 7/14/08 104.00 40.00 144.00 15. Wil liam Ba iley 7/16/08 210.00 40.00 250.00 16. Ralph Harmon 19.00 40.00 59.00 1,548.00 640.00 2,188.00 Pursuant to Rule 54 of the L ocal Rules of Civil Procedure and Section 1920 of Title 28 of the United States Code, included in the list of taxable costs ar e the c ost of servinga subpoena on an individual who testifies at a deposition, hearing , or trial, as w ell as witness costs. See L CvR 54.1(d(( 11); 28 U.S.C. § 1920 (3). Acc ordingto plaintiff’s fe e petition, eac h of the sixt een individuals li sted above wer e ser ved with a “ Subpoena for Trial.” [#173-8] at 1. Althoug h

5 neither the L ocal Rules nor the United States Code mandate s that the subpoenae d witnesses specific ally

testify at trial

in order to justify

reimburse ment, when the subpoe na is issued specific ally for trial and the witness doe s not testify , the Court is within i ts authority to deny 6 such re cover

y . See L ongv. Howar d Univ., 561 F. Supp. 2d 85, 98 (D.D .C. 2008) (deny ing
rec overy for se rvice of a subpoe na duces te cum on an individual who did not testify at a deposition, hearing , or trial).

Plaintiff identifies the dates of service of the subpoena s as ra ng ing be tween June 23, 5 2008 and Jul y

16, 2008. [#173-8] at 1. Trial in this case beg an on Jul y 21, 2008 and conc luded on J uly 28, 2008. The a pportionment of costs is within the “sound discretion” of the cour t. Moore v. Nat’l 6 Ass’n of Sec . Dea lers, Inc., 762 F .2d 1093, 1107 (D.C. Cir. 1985). 15L ike subpoena s, witness fee s are also expressly authorized. See L CvR 54.1(d)(10); 28 U.S.C. § 1920 (3); Youseff v. FB I , 762 F. Supp. 2d 76, 88-89 (D .D.C. 2011). Witness fees ar e usually limit ed, howe ver, to the da y s the witness “ne cessa

rily and re asonably

attended” the trial
as a w itness. Be lfiore v. U.S. Mer it Sy s. Prot. Bd., No. 84-CIV-3877, 1987 WL10234, at *2 (D.D.C. 1987). See Kake h v. United Planning O rg ., 657 F. Supp. 2d 15, 18 (D.D .C. 2009). Be cause plaintiff did not, in either his motion for attorney ’s fe es or his re ply , indicate whe ther and under what cir cumstance s the individuals lis ted above attended the trial, the Court will disallow both the claimed subpoena and witness fe es. CONCLUSION Plaintiff is entitl ed to an a war d of $300,000.00 in attorney ’s fe es and $3,243.00 in c osts. An Orde r ac companies this Memora ndum Opinion and the Clerk is direc ted to enter judgme nt in
acc ordanc e with this Memorandum Opinion.

______________________________ J OHN M. F ACCI OLA UNI TED STATES MAGI STRATE J UDGE

16