U.S. v. Bill Harbert Intern. Const.

• Decision Date: 26 February 2009
• Docket Number: Civil Action No. 95-1231 (RCL).
• Parties: UNITED STATES of America, ex rel. Richard F. MILLER, Plaintiffs, v. BILL HARBERT INTERNATIONAL CONSTRUCTION, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

601 F.Supp.2d 45

UNITED STATES of America, ex rel. Richard F. MILLER, Plaintiffs, v. BILL HARBERT INTERNATIONAL CONSTRUCTION, INC., et al., Defendants.

Civil Action No. 95-1231 (RCL).

United States District Court, District of Columbia.

February 26, 2009.

COPYRIGHT MATERIAL OMITTED

Keith V. Morgan, U.S. Attorney's Office, Robert B. Bell, Gregory B. Reece, Howard M. Shapiro, Jennifer M. O'Connor, Jonathan Goldman Cedarbaum, Monya Monique Bunch, Rebecca J.K. Gelfond, Wilmer Cutler Pickering Hale and Dorr, LLP, Carolyn Gail Mark, Michael F. Hertz, Michael J. Friedman, U.S. Department of Justice, Washington, DC, Robert D. Cultice, Wilmer Cutler Pickering Hale & Dorr LLP, Boston, MA, for Plaintiffs.

Charles Anthony Zdebski, Barry Coburn, Troutman Sanders LLP, Charles Samuel Leeper, Jeffrey J. Lopez, Elizabeth Ewert, Michael J. McManus, Michael Reilly Miner, Drinker Biddle & Reath LLP, Andrew Lawrence Hurst, Stephen Printiss Murphy, Reed Smith LLP, Washington, DC, June Ann Sauntry, Brian P. Watt, Bryan B. Lavine, Troutman & Sanders, Charles C. Murphy, Jr., Ellen G. Schlossberg, Vaughan & Murphy, Atlanta, GA, for Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Now before the Court comes relator Richard F. Miller's supplemental motion [980] for attorneys' fees. Upon consideration of the motion [980], the oppositions, the replies, the entire record herein, and applicable law, the Court will GRANT relator's motion in part for the reasons set forth below.

I. BACKGROUND

On May 14, 2007, the jury found defendants¹ liable for damages totaling approximately $34.4 million, which after trebling is $103.2 million. After subtracting for prior settlements and adding civil penalties, this Court entered final judgment for plaintiffs on August 10, 2007, in the amount of $90,438,087.66. (See 501 F.Supp.2d 51 (D.D.C.2007).) The Court also entered judgment in favor of relator against defendants for reasonable attorneys' fees, costs, and expenses under 31 U.S.C. § 3730(d). (See id.)

On September 18, 2007, relator filed his fee petition and bill of costs. (Docket [929], [930].) The relator's fee petition sought reasonable fees, costs, and expenses incurred from June 1995 through July 31, 2007. After considering the relator's fee petitions, the oppositions, and the replies, the Court awarded relator $7,245,169.07 in reasonable attorneys' fees and $287,025.52 in reasonable expenses. In determining the fee award, the Court denied the relator's vigorous request for an enhancement (Docket [971] at 7) ("Fee Opinion I"). The Court also made limited reductions based on specific categories of time that were non-compensable (See Fee Opinion I at 51) as well as a 10% across-the-board reductions for vague descriptions of time entries, a 10% reduction for use of block billing, and a 5% reduction for excessive and redundant work. (Rel.'s Mot. 9.) The Court's ultimate Fee Order awarded the relator approximately 73% of the requested base fees and approximately 56% of the requested base costs.² (Rel.'s Mot. 7.)

The defendants then filed eight different post-trial motions challenging the verdict. (See Rel.'s Mot. [980] at 2.) Relator took the lead on opposing four of the eight post-trial motions, and the government took the lead on opposing the other four post-trial motions. (Id. at 2-3.) On June 23, 2008, this Court entered an order denying all eight of defendants' post-trial motions.³ (563 F.Supp.2d 54 (D.D.C.2008).) As a result, relator was the prevailing party against defendants Bill Harbert International Construction, Inc. ("BHIC"), Harbert Corporation ("HC"), Harbert International, Inc.("HII"), Bilhar International Establishment ("Bilhar"), and Harbert U.K.

The relator now files his supplemental motion for attorneys' fees. The relator seeks compensation for the hours spent opposing defendants' post-trial motions, as well as the time spent preparing and submitting the first fee petition to the Court. The relator seeks a total of $478,198.50 in attorneys' fees and $30,194.06 in costs and expenses for the post-trial merits work and $636,537.92 in attorneys' fees and $119,105.84 in costs and expenses for work done in conjunction with obtaining fees in the case. Thus, relator's supplemental fee petition requests a total award of $1,264,036.32.⁴

For the reasons set forth below, the Court has decided to award the relator $303,526.16 in reasonable fees for merits-related work and $18,116.44 in reasonable merits-related costs and expenses. The Court has also decided to award the relator $319,972.04 in reasonable fees for fees-related work and $91,064.10 in reasonable costs and expenses for fees-related work. Therefore, the Court will award the relator a total of $732,678.74 in this supplemental fee petition. (See infra Appendices 1-4.)

II. ANALYSIS

As this Court has previously held, relator is entitled to attorneys' fees under the False Claims Act. 31 U.S.C. § 3730(d)(1).

The initial estimate for attorneys' fees is calculated by "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate."⁵ Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). A strong presumption exists that the product of these two variables—the "lodestar figure"—represents a reasonable fee. Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

A. Reasonable Rate

First, the Court must determine the rate that should apply to WilmerHale's⁶ hours. This Court has already determined that WilmerHale's 2007 rates are reasonable. (Mem. Op. [971] at 15-23.) In this supplemental fee petition, however, relator argues that 2008 rates should apply—both to the work that was done in 2007 and to the work that was done in 2008. Relator argues that he is entitled to be compensated at WilmerHale's 2008 rates for all of their work as a means of approximating the value of historic rates had they been paid when the services were actually rendered.

The Court rejects the relator's request to use 2008 rates for the work performed in 2007. First, "it is clear that the Supreme Court contemplated a substantial delay when it referred to compensation received `several years' after the services were rendered as not being equivalent to the same dollar amount as if received `reasonably promptly' after the legal services were performed." Salazar v. District of Columbia, 123 F.Supp.2d 8, 15 (D.D.C. 2000) (citing Missouri v. Jenkins, 491 U.S. 274, 283-84, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)). In addition, using the 2008 rates for 2007 work would result in a windfall in this case, which even if the Court accepted relator's "time value of money argument," would be impermissible. See Murray v. Weinberger, 741 F.2d 1423, 1433 (D.C.Cir.1984). From 2007 to 2008, those WilmerHale attorneys who performed merits-based work on this case saw their rates increase by an average of 19%. (BHIC Opp'n [991] at 11.) This is a far sharper increase than inflation or the "time value of money." As a result, the Court will apply WilmerHale's 2007 rates to the work done in 2007.

As for the work done in 2008, the Court will apply WilmerHale's 2008 rates. A law firm's market rate is presumptively reasonable. Laffey v. Northwest Airlines, Inc. 746 F.2d 4, 22 (D.C.Cir.1984) (overruled on other grounds). Moreover, WilmerHale's 2008 rates are within those prevailing in D.C. for lawyers conducting complex, federal-court civil litigation and its rates align with those of its competitors. (See Ex. 1, Bell 2d Supp. Decl. ¶ 23; Ex. 2, Davidson 2d Supp. Decl. ¶ 13; Ex. 3, Braga 2d Supp. Decl. ¶ 4.) The attorneys who worked on the case also appear to have the level of skill, experience, and reputation that would command those rates on the open market. (See Rel.'s Mot. at 15-16.) Relator has supported his argument for the new rates with declarations of experts. (Rel.'s Mot. 15.) The defendants' speculation that WilmerHale's rates "may be rejected by clients" (Opp'n of Harbert International Inc. [992], et al. at 10)⁷ is not enough to overcome WilmerHale's evidence and the presumption of reasonableness.

B. Reasonable Hours

The Court has already stated the principles that govern the determination of whether hours were reasonably expended in litigation. (See Fee Opinion I at 30-32.) In brief, a fee petitioner must submit documentation supporting its fee request, and the documentation must be sufficiently detailed to permit the Court to make a determination of whether the claimed hours are justified. Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C.Cir.1982). The district court can exercise discretion in reducing the fee award by specific amounts in response to specific objections. Donnell v. United States, 682 F.2d 240, 250 (D.C.Cir.1982). However, the Court can also reduce fees "by a reasonable amount without providing an item-by-item accounting." Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C.Cir.2004).

In this case, the second approach is appropriate. Although the Court undertook an item-by-item accounting in the original fee petition, and then took a further percentage reduction, that analysis resulted in a 169 page opinion. Although that may have been appropriate with respect to the original petition, in which the relator sought approximately $20,000,000 in legal fees, the Court is now at the "fees-for-fees" stage, where undertaking an item-by-item accounting would result in marginal utility; indeed, "once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluation of each phase or category of counsel's work." Cobell v. Norton, 407 F.Supp.2d 140, 166 (D.D.C.2005) (citing Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976)). The percentage reduction approach has been endorsed by the D.C. Circuit when the Court recognizes that a...