UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

MICAH FIALKA-FELDMAN Case Number 08-CV-14922 

 

 Plaintiff, Hon. Patrick J. Duggan 

v. 

 

OAKLAND UNIVERSITY BOARD 

OF TRUSTEES, GARY D. RUSSI, MARY BETH 

SNYDER, and LIONEL MATEN, in their 

official capacity, 

 Defendants. 

_______________________________________________________________________/ 

Michigan Protection & Advocacy Service, Inc. BUTZEL LONG 

Chris E. Davis (P52159) By: Robert A. Boonin (P38172) 

Veena Rao (P52981) Regan K. Dahle (P53975) 

29200 Vassar Blvd., Suite 200 350 S. Main Street, Suite 300 

Livonia, MI 48152 Ann Arbor, MI 48104 

Phone: (248) 473-2990 (734) 995-3110 

Email: cdavis@mpas.org Email: boonin@butzel.com

Attorneys for Plaintiff Attorneys for Defendant 

_______________________________________________________________________/ 

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF ATTORNEYS’ FEES 
TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................................................... iii 

QUESTION PRESENTED............................................................................................................ iv 

ARGUMENT...................................................................................................................................1 

1. PLAINTIFF IS ENTITLED TO $134,235.45 IN ATTORNEYS’ FEES SINCE IT 

IS REASONABLE AND WELL DOCUMENTED............................................................1 

. 

A. PLAINTIFF’S FEES AWARD SHOULD NOT BE REDUCED SINCE 

PLAINTIFF’S CLAIMS RAISED IN THE LAWSUIT ARE RELATED.............3 

B. PLAINTIFF OBTAINED EXCELLENT RESULTS IN THIS LAWSUIT 

WARRANTING FULL RECOVERY OF HIS REQUEST FOR 

 ATTORNEYS FEES................................................................................................4 

CONCLUSION................................................................................................................................5 

ii 
TABLE OF AUTHORITIES

CASES

Blum v. Stevenson, 465 U.S. 886, 895 (1984).....................................................................1 

City of Riverside v. Rivera, 477 U.S. 561, 574, (1986).......................................................5 

Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92, 98 

 (4th Cir. 1993)...........................................................................................................4 

Gates v. Gomez, 60 F.3d 525, 535 (9th Cir. 1995)................................................................2 

Hensley v. Eckerhart, 461 U.S. 424, 435, (1983).............................................................3,4

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)..........................1 

League of Residential Neighborhood Advocates v. City of Los Angeles, 

633 F.Supp.2d 1119 (2009).....................................................................................3 

Luciano v. Olsten Corp., 925 F. Supp. 956 (E.D.N.Y. 1996)..............................................2 

Moreno v. City of Sacramento, 534 F.3d 1106, 1112, 1114 (9 Cir. 2008).. th ...................1,3 

U.S. Airways v. Barnett, 535 U.S. 391 (2002).....................................................................3 

iii 
QUESTION PRESENTED 

IS PLAINTIFF ENTITLED TO $134,235.45 IN ATTORNEYS’ FEES SINCE IT IS 

REASONABLE AND WELL DOCUMENTED?

 Plaintiff’s Answer: YES 

iv 
1. PLAINTIFF IS ENTITLED TO $134,235.45 IN ATTORNEYS’ FEES 

SINCE IT IS REASONABLE AND WELL DOCUMENTED 

Plaintiff relies upon its Brief in Support of the Attorneys’ Fees motion to address 

Defendants’ claim that the rate being requested for the fees of Attorneys Davis, Rao and 

Cody are unreasonable. In the original brief, Plaintiff thoroughly explained why the rates 

for each of the attorneys was justified using not only market rates but also through the 

review of the Johnson factors. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 

(5th Cir. 1974). Contrary to Defendants’ assertion, even attorneys for non-profit agencies 

like Plaintiff’s counsel, are entitled to attorney fees at the prevailing market rate and not 

the cost of the attorneys to the non-profit agency. Blum v. Stevenson, 465 U.S. 886, 895 

(1984). The Court should take note that Plaintiff’s attorneys do not have an interest in 

inflating the time spent in litigating this case or inflating the attorneys’ fees request.1 

Plaintiff will address each of Defendants’ remaining arguments challenging the

request for attorney fees. Plaintiff is submitting revised billing records and would like 

the Court to base its decision regarding this Motion based on these revised billing

records. Exhibit A. With respect to Defendants’ claim that the billing does not contain 

adequate descriptions of the tasks performed, the billing record has been amended.2

 In 

addition, Plaintiff has removed a majority of case conference items from its billing 

 

1 In Moreno v. City of Sacramento, the Court noted 

It must also be kept in mind that lawyers are not likely to spend unnecessary time on 

contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as 

to both the result and the amount of the fee. It would therefore be the highly atypical 

civil rights case where plaintiff's lawyer engages in churning. By and large, the court 

should defer to the winning lawyer's professional judgment as to how much time he was 

required to spend on the case; after all, he won, and might not have, had he been more of 

a slacker. 534 F.3d 1106, 1112 (9 Cir. 2008). th

2

 The “Documentation-Service Request” field references entry of case notes in the case file. The activity 

description was derived from that documentation and entered into the billing record. 

1 
records. The case conference items left intact are attributed only to Mr. Davis and were a 

necessary activity to review discovery strategy, motions and briefs to be filed by 

attorneys involved. Although Plaintiff disagrees with Defendants’ claim that he is not 

entitled to fees for anyone other than “lead” counsel at depositions, the billing has been

reduced for the second attorney at the deposition by 50%. The travel line items are billed

at the rate of $125 per hour. It is 50% of the attorney’s billing rate for Attorneys Davis 

and Rao and approximately 40% of Attorney Cody’s billing rate. Luciano v. Olsten 

Corp., 925 F. Supp. 956 (E.D.N.Y. 1996), judgment aff'd, 109 F.3d 111 (2d Cir. 1997). 

In the revised billing records, Attorney Davis’ billing has been clarified to include

descriptions of the activities he engaged in during the course of this litigation. The

billing, prior to drafting of the complaint, has been restricted to research and drafting of 

the requests for reasonable accommodation in this case. Contrary to Defendants’ claim,

Plaintiff is entitled to fees for Attorney Davis’ attendance at O.U.’s Board of Trustees 

meetings. The meetings served Plaintiff’s discovery purposes as well as served as

opportunities to try to get the Board to find a resolution of the issues raised in the lawsuit. 

Plaintiff’s request to live in on-campus housing was the subject of several Board 

meetings at O.U. Staff and faculty addressed the Board on this topic as did Defendant 

Snyder and members of the Board.3

 

Billing records of Attorney Cody have been adjusted to redact billing for case

reviews.4

 All billing for Attorneys Kay and Frampton have been deleted from the revised 

 

3

 The case cited by Defendants’, Gates v. Gomez, is distinguishable since the attorneys in that case were 

attempting to bill for attending a conference to educate themselves. 60 F.3d 525, 535 (9th Cir. 1995). 4

 Not unlike a big law firm where senior attorneys or partners provide supervision in cases, Attorney Cody, 

as the Litigation Director of Michigan Protection & Advocacy Services, Inc., acted in his supervisory 

capacity in overseeing and lending support during various stages of litigation. Nevertheless, Attorney 

Cody’s time expended for providing feedback and supervision has been removed in the revised billing. 

2 
billing records. Even though this case has garnered local and national attention, all line 

items for publicity have been deleted from the billing records. 

Defendants contend that Plaintiff is not entitled to attorneys’ fees for the Motion for a 

Preliminary Injunction. In granting the Permanent Injunction, this Court noted that had it 

considered U.S. Airways v. Barnett, 535 U.S. 391 (2002), the analysis of its prior 

decisions would have changed. The Preliminary and Permanent Injunctions were based 

on the same legal theory and facts. The fact that Plaintiff had to re-argue it should be the 

basis for rejecting all fees associated with the prior effort. Moreno, 534 F3d at 1114. 

A. PLAINTIFF’S FEES AWARD SHOULD NOT BE REDUCED SINCE

PLAINTIFF’S CLAIMS RAISED IN THE LAWSUIT ARE RELATED 

Defendants’ claim that Plaintiff is not entitled to fees for any claims other the 

reasonable accommodation claim under §504 of the Rehabilitation Act. Contrary to

Defendants’ assertion, the claims in this case are inter-related since the case involved a 

“common nucleus of operative fact” and the legal theories not are distinguishable. In 

Hensley v. Eckerhart, the Court noted that 

Many civil rights cases will present only a single claim. In other cases the 

plaintiff's claims for relief will involve a common core of facts or will be based on 

related legal theories. Much of counsel's time will be devoted generally to the 

litigation as a whole, making it difficult to divide the hours expended on a claimby-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. 

Instead the district court should focus on the significance of the overall relief 

obtained by the plaintiff in relation to the hours reasonably expended on the 

litigation. 461 U.S. 424, 435, (1983) 

In League of Residential Neighborhood Advocates v. City of Los Angeles, 633 

F.Supp.2d 1119 (2009), the Court held that all of plaintiff’s state and federal claims in the

suit arose out a common nucleus of operative fact and hence were inseparable for

purposes of a reasonable fees determination. Here the relief which Plaintiff sought was a 

3 
ruling that Defendants violated one or several provisions of the Fair Housing Act, 

Americans with Disabilities Act, or the Rehabilitation Act of 1973 and issuance of an 

order allowing him to live in on-campus housing.5

 Here, all the claims relied upon the 

same set of common facts: the Options Program, the status of Plaintiff as a student, the 

nature of the housing program, Plaintiff’s performance in the academic program, the

request for reasonable accommodation, and intent and actions of all of the named 

Defendants. Even the legal theories are not distinguishable. In its Opinion, this Court

noted that the ADA and the Rehabilitation Act are quite similar in its purpose and scope. 

Furthermore, the relief being sought under all legal theories was access to on-campus 

housing, the ultimate relief which was granted by this Court. 

B. PLAINTIFF OBTAINED EXCELLENT RESULTS IN THIS LAWSUIT 

WARRANTING FULL RECOVERY OF HIS REQUEST FOR 

ATTORNEYS FEES 

Where a plaintiff has obtained excellent results, his attorney should recover a

fully compensatory fee. Hensley, 461 U.S. at 435. The Hensley Court noted 

the fee award should not be reduced simply because the plaintiff failed to prevail 

on every contention raised in the lawsuit. Litigants in good faith may raise 

alternative legal grounds for a desired outcome, and the court's rejection of or

failure to reach certain grounds is not a sufficient reason for reducing a fee. The

result is what matters. Id.

As the Supreme Court explained, “a civil rights plaintiff seeks to vindicate important civil 

and constitutional rights that cannot be valued solely in monetary terms.... [T]he public as 

a whole has an interest in the vindication of the rights conferred by the statutes 

enumerated in § 1988, over and above the value of a civil rights remedy to a particular 

 

5

 This case is distinguishable from the case cited by Defendants’, Fair Housing Council of Greater

Washington v. Landow, 999 F.2d 92, 98 (4th Cir. 1993), since the claims in that case were a breach of 

contract claim and discrimination. There the Court found that the successful claims were legally and 

factually distinct from the unsuccessful claims. 

4 
plaintiff.” City of Riverside v. Rivera, 477 U.S. 561, 574, (1986); Graves v. Arpaio, 633 

F.Supp.2d 834, 843 (D.Ariz., 2009). 

Plaintiff, a student with an intellectual disability, set out to obtain injunctive relief

which would allow him access to on-campus housing, a case of first impression in 

Michigan, as well as in the country. Colleges and universities around the country have 

set up academic programs for students with intellectual disabilities, but this is the first 

legal challenge to a denial of equal access to a university’s housing program. Plaintiff, as 

the prevailing party, obtained access to on-campus housing, the only reason for pursuing 

this litigation. The revised billing is well documented, thorough and reasonable since 

great care has been taken to eliminate all non-compensable time from the billing, reduce 

the amount of attorneys fees to be recovered for a number of tasks by taking an across the 

board reduction, and limited billing for a reasonable amount of hours expended in

obtaining relief in this case. Plaintiff obtained an excellent result in this case which

warrants the attorneys’ fees now being requested. 

Wherefore, Plaintiff asks the Court to enter an Order granting $134,235.45 in 

attorneys’ fees in this case. 

Respectfully submitted, 

Dated: February 10, 2010 s/Veena Rao

 MICHIGAN PROTECTION & 

 ADVOCACY SERVICE, INC. 

 Attorney for Plaintiff 

 29200 Vassar Blvd., Suite 200 

 Livonia, MI 48152 

 (248) 473-2990 

 vrao@mpas.org

 P52981

5 
CERTIFICATE OF SERVICE

I hereby certify that on February 10, 2010, I electronically filed the foregoing Plaintiff’s 

Reply Brief in Support of Attorneys’ Fees with the Clerk of the Court using the ECF 

system which will send notification of such filing to the following: Robert A. Boonin. 

s/Veena Rao

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

Attorney for Plaintiff 

29200 Vassar Blvd., Suite 200 

Livonia, MI 48152 

(248) 473-2990 

vrao@mpas.org

P52981