Burns v. Nielsen

• Decision Date: 12 February 2021
• Docket Number: EP-17-CV-00264-DCG
• Parties: JOSEPH L. BURNS, Plaintiff, v. KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, Defendant.
• Court: U.S. District Court — Western District of Texas

JOSEPH L. BURNS, Plaintiff,
v.
KIRSTJEN NIELSEN,
Secretary, U.S. Department of Homeland Security, Defendant.

EP-17-CV-00264-DCG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION

February 12, 2021

MEMORANDUM OPINION AND ORDER REGARDING ATTORNEY FEES AND COSTS

Presently before the Court is Plaintiff Joseph L. Burns's (Plaintiff or Burns) "Motion for Attorney Fees and Costs" (ECF No. 116). For the reasons that follow, the Court GRANTS the motion in part.

I. BACKGROUND

In August 2017, Burns, an employee of the U.S. Customs and Border Protection (Agency), brought this lawsuit against Defendant Alejandro Mayorkas¹ (Defendant or Secretary) for the Agency's violations of § 501 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 791, and in turn, for violations of Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12111 et seq. At the summary judgment stage, Burns pursued five claims: two disability (actual and regarded-as) discrimination claims, a disability-based hostile work environment claim, a retaliation claim, and an improper medical inquiry claim. In August 2019, United States Magistrate Judge Anne Berton recommended that the Secretary's motion for

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summary judgment be granted in part and Burns's retaliation claim be dismissed for failure to exhaust administrative remedies, R&R at 23, ECF No. 40; Burns did not object to her recommendations. On January 28, 2020, the Court adopted in part the magistrate's recommendations, dismissing the retaliation claim and further dismissed the hostile work environment claim; the Court allowed Burns's disability discrimination and improper medical inquiry claims to proceed to trial. Burns v. Nielsen, 456 F. Supp. 3d 807, 831 (W.D. Tex. 2020) (hereinafter, Burns MSJ Op.).

Following jury selection on February 3, 2020, the liability phase of the trial began on February 4 and concluded on February 7; the jury found for Burns on each of his three claims. On February 10, 2020, the damages phase of the trial was held; the jury awarded Burns $125,000 as past emotional damages. In accordance with the parties' stipulation on back pay in the amount of $3,068.56 and the jury verdict, the Court entered final judgment on February 25, 2020, awarding Burns $128,068.56.

On March 10, 2020, Burns filed the instant motion for fees and costs (ECF No. 116). The parties' briefing on the motion was completed by June 25, 2020. See Def. Resp., ECF No. 124; Pl.'s Reply, ECF No. 129. In the meantime, the Secretary filed a renewed motion for judgment as a matter of law, or in the alternative, motion for a new trial or remittitur (ECF No. 119).² The Court granted in part the Secretary's motions and remitted the jury's award for emotional damages to $90,000. Burns v. Nielsen, No. EP-17-CV-00264-DCG, 2020 WL 7223922, at *1 (W.D. Tex. Dec. 8, 2020) (hereinafter, Burns JMOL Op.). In December 2020, the Court entered an amended judgment, awarding Burns $93,068.56.

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II. DISCUSSION

By his motion, Burns argues that as a prevailing party under § 501 of the RA, 29 U.S.C. § 791, he is entitled to reasonable attorney's fees as part of the costs. Pl.'s Mot. for Att'y Fees & Costs at 1-2, ECF No. 116. He moves for a fee award in the range of $425,000 to $500,000 and seeks to recover $5,036.05 in costs. Id. at 1, 9-10. In response, the Secretary does not address whether Burns is a prevailing party, but he does challenge the reasonableness of the requested fee amount and asks the Court to deny in part Burns's motion as to the amount by applying appropriate reductions. Def.'s Resp. at 1, 18, ECF No. 124. The Secretary likewise does not address Burns's request for costs.

The RA authorizes the court, in its discretion, to "allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 29 U.S.C. § 794a(b).³ Under a traditional prevailing-party fees provision,⁴ "[t]o qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relationship between the parties; and (3) modifies the defendant's behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement." Walker v. City of Mesquite, TX, 313 F.3d 246, 249 (5th Cir. 2002) (citing Farrar v. Hobby, 506 U.S. 103, 111-123 (1992)). Under this standard, Burns qualifies as a prevailing party in this case because the Court

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has entered a judgement for $93,068.56 against the Secretary and in Burns's favor. See Genesis Marine, L.L.C. of Delaware v. Hornbeck Offshore Servs., L.L.C., 951 F.3d 629, 632 (5th Cir. 2020) ("Under this definition, [plaintiff] has prevailed. It has obtained a judgment for $722,346.35 that materially alters the relationship between the parties and places [defendant] in [plaintiff ]'s debt.").⁵ Further, the Court finds that no "special circumstances" exist here to justify denial of fees to Burns.⁶

Next, the Court determines the appropriate amount of "reasonable attorney's fee." 29 U.S.C. § 794a(b). In the Fifth Circuit, courts must apply a two-step method for determining a reasonable fee award. Portillo v. Cunningham, 872 F.3d 728, 741 (5th Cir. 2017). "First, they calculate the lodestar, which is equal to the numbers of hours reasonably expended multiplied by

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the prevailing hourly rate in the community for similar work." Id. (internal quotes omitted).⁷ The fee applicant bears the burden of demonstrating that the hours expended and the rates charged by counsel are reasonable. See Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996). "Second, the court should consider whether to decrease or enhance the lodestar based on the Johnson factors." Portillo, 872 F.3d at 741 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)).⁸ The fee applicant also "bears the burden of showing that . . . an [upward] adjustment is necessary." Walker v. U.S. Dep't of Hous. & Urban Dev., 99 F.3d 761, 771 (5th Cir. 1996) (italics in original; internal quotes and citation omitted).

A. This Was Not a Complex Case

Before embarking on the lodestar analysis, the Court considers the nature of the case. Alvarez v. McCarthy, No. 6-16-CV-00172-ADA, 2020 WL 1677715, at *2 (W.D. Tex. Apr. 6, 2020) (considering "the simplicity of the case and the issues involved in conducting [the] lodestar analysis"); see also id. ("This Johnson factor ('novelty and difficulty of issues' in the case) has a bearing on the market rate and on whether the hours were reasonably spent and may be a basis for adjusting the lodestar."). Here, this was not a complex case, and it presented no novel issue; nor was it an unusually contentious case.

Although at the summary judgment stage, Burns pursued a total of five discrete claims, the case was ultimately tried on three claims: actual and regarded-as disability discrimination

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claims, 42 U.S.C. § 12112(a), and improper medical inquiry claim, 42 U.S.C. § 12112(d)(4). In effect, however, this was a single-claim trial insofar as it was based on the same facts but three different theories. To elaborate, the two discrimination claims were run-of-the-mill claims, and the Secretary did not pursue any affirmative defense. These claims differed primarily by the disability element (actual versus regarded-as). The evidence in support of a critical element, which is common to both claims—i.e., whether the Agency discriminated against Burns because of his disability—was identical for both. See Burns JMOL Op., 2020 WL 7223922, at *15-*19; see also Pl.'s Resp. to Def.'s Mot. for Summ. J. at 34-41 (discussing together "pretext" for all claims), ECF No. 25. A significant portion of the evidence to prove discrimination was documentary such as emails and letters; among them, were two letters the Agency issued to Burns seeking medical information and restricting his tower climbing duties; and an e-mail from Burns's supervisor (Markus Yrrobali) to the Agency's human resource specialist (Maria Benn) that led to the issuance of those letters. At trial, Burns had to persuade the jury whether discriminatory intent could be inferred from Yrrobali's email. Burns JMOL Op., 2020 WL 7223922, at 19.⁹ As for the medical inquiry claim, to meet his burden of proof, Burns needed only the Agency's letters seeking medical information from Burns, and the Secretary's affirmative defense of "business necessity" turned on "[m]uch of the evidence" that supported the jury's finding of discrimination. Id. at 21.

The entire trial, which was bifurcated, lasted approximately 27 hours spanning over six days. Following jury selection, which lasted for half a day on February 3, 2020, the liability phase of the trial was held on February 4-7. Of nine trial witnesses, seven gave live testimony.

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The remaining two witnesses, including a critical one (Barbara Molinar), were not called to give live testimony; instead, their deposition testimony was presented by readers. The damages phase of the trial (which was held on February 10, 2020) lasted approximately 45 minutes, including closing arguments, and Burns was the only witness who testified on damages.

Finally, this case involved no significant discovery dispute (as reflected by the fact that no discovery motion was filed). Other than the Secretary's summary judgment motion, motion in limine, and posttrial motions for judgment as a matter of law or a new trial—no substantive motion was filed. No expert witness was used for any proceedings.

B. Hourly Rates

Burns requests an hourly rate of $300-$400 for Mr. Baeza and a rate of $450-$550 for Mr. Martinez. Pl.'s Mot. for Att'y Fees & Costs at 2. The Secretary contests the reasonableness of the requested rates and suggests hourly rates of $175 and $200, respectively, for Mr. Baeza and Mr. Martinez. Def.'s Resp. at 16.

"The reasonableness of an attorney's hourly rate 'depends on the experience...