Boehner v. McDermottBoehner v. McDermott
MEMORANDUM OPINION
Pending before the Court are Congressman John A. Boehner’s Revised Motion for Attorneys’ Fees, Costs, and Interest (# 95) and Congressman Boehner’s Supplemental Motion for Attorneys’ Fees, Costs, and Interest (# 103). While the parties agree Congressman Boehner is entitled to attorneys’ fees, costs, and interest pursuant to
In total, Congressman Boehner requests an award of $1,115,895.53, before interest (“Total Amount”), which, includes: (1) $850,887.53 for litigation of the federal claim
1
through June 30, 2007 (“Revised Amount”); (2) $14,153 for work as amicus curiae in
Bartnicki v. Vopper,
For the reasons that follow, the Court will award Congressman Boehner the entire Revised Amount and Amicus Amount, postjudgment interest from the Court’s October 22, 2004, order, and 75% of the Supplemental Amount.
BACKGROUND
On August 20, 2004, this Court granted Congressman Boehner summary judgment on his claim that Congressman McDer-mott’s disclosure to reporters of a recorded conversation involving Congressman Boehner and various other Republican Party leaders violated the federal wiretapping statute, 18 U.S.C. § 2511(l)(e).
See Boehner v. McDermott,
DISCUSSION
Insofar as this opinion is concerned, the parties disagree on following issues: (1) whether Congressman Boehner is entitled to the entirety of the Revised Amount in light of Congressman Boehner’s lack of success on his argument that the First Amendment does not protect the disclosure of truthful information of public concern by a person who knew or had reason to know that the information was unlawfully obtained by another; (2) whether Congressman Boehner is entitled to attorneys’ fees attributable to his participation as amicus curiae in
Bartnicki v. Vopper,
I. REVISED AMOUNT
While not challenging the reasonableness of the amount of hours expended or the rate requested, Congressman McDermott contends that, because Congressman Boehner failed to prevail on his “core” argument that the First Amendment did not shield Congressman McDermott from liability because he knew or had reason to know that the recording was unlawfully intercepted, Congressman Boehner’s success was partial or limited at best and, thus, the Revised Amount is unreasonable. Def. Opp’n 8; Def. Reply 7 (“Simply put, the scope of this litigation would have been narrower, and the amount of fees and costs would have been lower, but for Rep. Boehner’s refusal to concede that the First Amendment — and Bartnicki v. Vopper—protect the disclosure of truthful information of public concern by a person who played no role in intercepting the underlying information, even if he knew or had reason to know that it was unlawfully obtained by another.”). Countering, Congressman Boehner contends that the fees he incurred on the federal claim were “concededly reasonable” and, because he fully prevailed on that claim, no reduction is even potentially warranted.
In support of his argument, Congressman McDermott chiefly relies on the Supreme Court’s decision in
Hensley v. Eck-erhart,
Here, Congressman Boehner succeeded on the only claim for which he seeks fees — his claim that Congressman McDermott violated the federal wiretapping statute by disclosing to reporters the tape recording of an illegally intercepted conversation in which Congressman Boehner participated — and, thus, the Court finds that a reduction under the partial success analysis of
Hensley
is unwarranted.
See American Petroleum Inst. v. EPA,
That Congressman Boehner pursued only one claim for relief raises the some
Even the case Congressman McDermott cites in his response brief for the proposition that the Court must engage in an issue-by-issue assessment of Congressman Boehner’s success and discount the fee request based on his failure to succeed on his unlawfully obtained argument supports a distinction based on issues or claims raised by the prevailing party.
See
Def. Reply 5-6 (citing
Kennecott Corp. v. EPA,
Here, as stated, Congressman Boehner, unlike the plaintiffs in the cited cases and the petitioners in Kennecott, succeeded on his only claim for relief for which he requests a fee award. In his complaint, Congressman Boehner alleged that Congressman McDermott violated the federal wiretapping statute, 18 U.S.C. § 2511(l)(c), and sought relief in the form of statutory and punitive damages and attorneys’ fees. After holding that Congressman McDermott violated the statute and that the First Amendment did not shield him from liability, this Court awarded Congressman Boehner $10,000 in statutory damages, $50,000 in punitive damages, and reasonable attorneys’ fees. Because the en banc court did not ultimately adopt Congressman Boehner’s primary response to Congressman McDermott’s affirmative defense does not render Congressman Boehner a “partially successful plaintiff.” 5
To rebut this alternative argument contention, Congressman McDermott relies on
Gratz v. Bollinger,
Here, unlike the plaintiffs in
Gratz,
Congressman Boehner succeeded on his
In sum, even if Congressman Boehner’s unlawfully obtained argument was a claim or issue subject to the
Hensley
partial success analysis, the Court holds that no reduction in fees is appropriate because Congressman Boehner was a fully prevailing party, in that he won substantial relief in context of the litigation as a whole. That Congressman Boehner defeated Congressman McDermott’s affirmative defense on one of the two grounds Congressman Boehner offered does not affect the degree of Congressman Boehner’s success.
See Kennecott,
II. AMICUS AMOUNT
Congressman McDermott claims Congressman Boehner is not entitled to recover the $14,153 in fees 7 he incurred while participating as amicus curiae in Bartnicki v. Vopper because, in light of the Supreme Court’s rejection of Congressman Boehner’s amicus position, Congressman Boehner’s amicus work did not lead to his ultimate success in this litigation. Def. Opp’n 12. 8 Countering, Congressman Boehner contends he is entitled to attorneys’ fees incurred in connection with his amicus work because he incurred those fees in pursuit of his victory in this matter. PI. Mem. 13.
The D.C. Circuit has only once addressed whether a party may recover attorneys’ fees for time expended in preparing an amicus brief in a related case.
See Nat’lAss’n of Concerned Veterans v. Sec’y of Def.,
Here, Congressman Boehner contends he is entitled to fees incurred relating to his amicus work in
Bartnicki
because the fees were reasonably incurred in pursuit of his victory in this case. Congressman McDermott does not dispute that Congressman Boehner incurred the fees
in pursuit
of his victory here or that the fees are otherwise reasonable; rather, Congressman McDermott argues Congressman Boehner cannot recover fees for his amicus work because he cannot show that his amicus brief
contributed
to his ultimate victory. Def. Reply 8 (“[I]t is not enough for Rep. Boehner to say that submitting a brief in the
Bartnicki
lawsuit
could have
contributed to his success in this case. Instead, Rep. Boehner must demonstrate that his amicus brief actually contributed to his ultimate success.... ”). Congressman McDermott relies on
Chrapliwy v. Uniroyal, Inc.,
Countering, Congressman Boehner argues that the inquiry is not whether the amicus work directly led to his success but, rather, whether a reasonable and prudent lawyer would have filed the brief to advance his client’s interest. PI. Mem. 14. In support of his argument, and in addition to his reliance on the D.C. Circuit’s “in pursuit of’ language in
Concerned Veterans,
Boehner features
Arizona v. Marico-pa County Med. Soc’y,
The basic question is: Would the preparation of the amici curiae brief ... “have been undertaken by a reasonable and prudent lawyer to advance or protect his client’s interest” in this case? Stated more simply, is it reasonable to conclude that a client would have authorized [the requested sum] in fees in a true attorney-client relationship?
Here, there is no question that the time spent on the
Bartnicki
amicus brief was “expended in pursuit of a successful resolution of the case in which fees are being claimed,”
Concerned Veterans,
Additionally, although Congressman Boehner’s amicus brief did not lead directly to his ultimate success before the D.C. Circuit, it served the purpose, as many such briefs do, of urging the Court to issue a narrow decision, one which would not disturb its holding in
Aguilar.
In his ami-cus brief, Congressman Boehner argued that, even if the First Amendment protected the
Bartnicki
defendants, the statute could still constitutionally apply to Congressman McDermott because, unlike the private parties in
Bartnicki
Congressman McDermott, “just like the federal judge in
Aguilar,
is a ‘government official’ in ‘[a] sensitive confidential position’ [who] took an ‘oath’ to preserve the ‘confidentiality’ of any information so obtained.” Br. of Ami-cus Curiae Representative John A. Boeh-ner in Support of Petitioners at 28,
Bart-nicki v. Vopper,
In sum, because Congressman Boehner expended time on the amicus brief in pursuit of a successful resolution in this matter and a reasonably prudent attorney would have done the same, and because no binding precedent, much less any case this Court could uncover, requires that a prevailing party show amicus work led directly to his ultimate victory in the subject case, the Court will award Congressman Boehner the $14,153 in fees he incurred while participating as amicus curiae in
Bartnicki v. Vopper. Cf. Hasbrouck v. Texaco, Inc.,
III.’ POST-JUDGMENT INTEREST
Congressman Boehner contends the Court should award him postjudgment interest commencing on October 22, 2004, the date this Court ordered that he was entitled to attorneys’ fees.
14
In doing so, he urges this Court to adopt the view that interest begins to run from the date a court rules that a party is entitled to attorneys’ fees rather than from the date the court, quantifies the amount of the award. Congressman McDermott, in response, urges this Court to adopt the view that, based oh the plain language of 28 U.S.C. § 1961(a), accrual of postjudgment interest does not begin until the entry of a judgment quantifying the amount of fees to which a party is entitled. For the reasons
Postjudgment interest for an attorneys’ fees award is governed by 28 U.S.C. § 1961(a).
See Eaves v. County of Cape May,
Although the D.C. Circuit has yet to weigh in on the issue, the Third and Tenth Circuits hold that interest does not begin to accrue under § 1961(a) until the district court enters an order quantifying the amount of fees (“minority view”),
15
see, e.g., Eaves v. County of Cape May,
In support of his position that the Court should adopt the minority view, Congressman McDermott attempts to rely on the plain language of the statute. He first asserts, and Congressman Boehner does not dispute, that the term “judgment” in the accrual portion of § 1961(a) refers to the term “money judgment” in the first sentence of the statute. Def. Opp’n. 15. From there, McDermott contends that a money judgment “traditionally has been understood to constitute a ‘judgment ... requiring] a party to pay a fixed sum’— and there is no basis for applying a different meaning here.” Def. Reply 10 (citing
Eaves,
Along with arguing that the plain language requires that a fixed sum is necessary to trigger accrual under § 1961, Congressman McDermott contends that the “Supreme Court itself has applied the exact same rule to the accrual of post-judgment interest on an award of damages.” Def. Opp’n 16 (citing
Kaiser Aluminum & Chem. Corp. v. Bonjomo,
On certiorari, the Supreme Court considered two issues relevant to the present discussion: (1) whether interest on damages should be calculated from the date of verdict, December 2, 1981, or the date of the judgment, December 4, 1981; and (2) whether interest on damages should be calculated from the date of the December 1981 judgment or the August 1979 judgment that was subsequently vacated. As to the first issue, the Court looked to § 1961(a)’s plain language — “interest shall be calculated from the date of the entry of the
judgment”
— and the absence of any contrary legislative history and, accordingly, held that interest did not begin to accrue until the date of judgment, as a verdict is nowhere mentioned in the statute and is nowise a “judgment.”
Id.
at 885,
Here, unlike in
Bonjomo,
the October 22, 2004, order is a valid, final judgment that unconditionally awards Congressman Boehner reasonable attorneys’ fees and is fully supported by the evidence. Therefore, the award, albeit unquantified, was ascertained on that date for purposes of triggering accrual.
Cf. Bonjorno,
In sum, because this Court’s October 22, 2004, order constitutes a valid judgment that unconditionally entitled Congressman Boehner to an award of attorneys’ fees, § 1961(a) mandates the running of interest from the date of judgment, and neither the plain language of § 1961 nor binding precedent requires a different result, the Court will follow the majority view and, accordingly, holds that interest began to accrue on the fee award on October 22, 2004.
IV. SUPPLEMENTAL AMOUNT
Congressman Boehner requests approximately $250,000 in supplemental attorneys’ fees and costs for work performed from July 1, 2007, through November 30, 2007. The Supplemental Amount breaks down approximately as follows: (1) $75,000 for preparing, documenting, and communicating about the fee petition; (2) $80,000 for researching, briefing, and hearing preparation relating to the fee issues; and (3) $95,000 for opposing Congressman McDer-mott’s certiorari petition. Congressman McDermott contends the Court must reduce the Supplemental Amount because approximately $250,000 is excessive in light of the scope of the work involved.
A. Fee Petition & Litigation
While not challenging the hourly rates charged, Congressman McDermott argues that Congressman Boehner’s $155,000 fee request for preparing the fee petition and litigating the fee issues — so called “fees on fees” — is unreasonable, in that the amount is excessive relative to the limited scope of the tasks performed. In support of his position, Congressman McDermott cites to numerous cases in which courts found unreasonable requests for fees on fees that were far less than Congressman Boehner’s,
20
and points out that the fee petition
“It is ‘settled in this circuit’ that ‘[h]ours reasonably devoted to a request for fees are compensable.’ ”
Heard v. District of Columbia,
Congressman Boehner has not met his burden. Indeed, Congressman Boehner submitted no documentation with his request for fees on fees. Rather, after Congressman McDermott opposed his request — and almost one month after filing his request — Congressman Boehner submitted only summaries of the amount of fees claimed.
See
Documentation in Support of Revised Mot. for Attorneys’ Fees and Costs. While helpful to the Court in providing an overall picture of Congressman Boehner’s claims for fees and costs, the summaries do not, with the requisite amount of detail — or much less any detail — provide the Court with a way to discern on what tasks the hours were expended.
See, e.g.,
Revised Mot. Doc. at Tab 6 (noting for each month from July 2007 to November 2007 the total amount billed, any reductions, and the amount claimed, without explaining the tasks performed). Such summaries are insufficient to establish the reasonableness of Congressman Boehner’s request for fees on fees.
See In re Sealed Case,
From the papers submitted during this fee litigation, the Court’s only way to. attempt to determine the amount of hours expended on tasks related to the request for fees on fees is an exhibit to Congressman Boehner’s response to Congressman McDermott’s opposition to the supplemental request. That exhibit comprises redacted copies of the monthly bills for July 2007 through November 2007, as they were transmitted to Congressman McDer-mott.
See
Pl. Mem. Support Suppl. Mot., Ex. A. Even if the Court considers these copies of bills sent to Congressman McDermott as the necessary documentation supporting Congressman Boehner’s supplemental fee request, they are insufficient for the Court to determine the reasonableness of the hours expended. For example, many, if not most, of the entries combine multiple tasks.
See, e.g., id.
at 6 (entry indicating that, on July 11, 2007, a Jones Day associate spent 3.5 hours on the following tasks: “Conference with L. Fisher regarding attorney fee issues; review pleadings; conduct research regarding attorney fee issues”);
id.
at 8 (entry indicating that, on August 3, 2007, a Jones Day associate spent 8.1 hours on the following tasks: “Legal Research regarding attorneys’ fee issues for motion and proceedings on attorneys’ fees; review/analyze time records and draft of letter to opposing counsel regarding same on fee petition; communications with L. Fisher, T. Lipscomb regarding attorneys’ fee petition and letter to opposing counsel regarding same; drafting of memorandum on availability of ‘fees on fees’ for proceedings on attorneys’ fees”). Such “lump[ing] together [of] multiple tasks[ ] mak[es] it impossible to evaluate their reasonableness.”
Role Models America, Inc. v. Brownlee,
In sum, 'the Court is left with insufficient information from which it can determine with the necessary “high degree of certainty” that the fees on fees request is reasonable. Due to Congressman Boehner’s inadequate documentation and failure to justify the amount of fees on fees sought — even in the face of Congressman McDermott’s specific challenge to the reasonableness of the hours expended in this portion of the litigation — the Court will exercise its discretion and reduce the requested amount by 25%.
See Hensley,
Congressman Boehner’s request for fees in connection with his opposition to Congressman McDermott’s petition for certio-rari is subject to the same deficiencies as his request for fees related to the fee litigation. That is, other than copies of the bills he submitted to Congressman McDer-mott and the summaries of amounts claimed, Congressman Boehner has failed to submit any documentation that “pro-vid[es] sufficient detail so that the Court can determine
‘with a high degree of certainty’
that the hours billed were actually reasonably expended ... and that the matter was appropriately staffed to do the work required efficiently and without du-plicative billing.”
Watkins,
CONCLUSION
Based on the foregoing, the Court will grant Congressman Boehner’s Revised Motion for Attorneys’ Fees, Costs, and Interest and grant in part and deny in part his Supplemental Motion for Attorneys’ Fees, Costs, and Interest.
Notes
. Along with claiming a violation of the federal wiretapping statute, Congressman Boehner alleged a violation of the Florida wiretapping statute. Congressman Boehner, however, lost on that count and, thus, seeks fees attributable to the federal count only. Congressman McDermott agrees the $850,887.53 does not include work on the state claim.
. Under the wiretapping act, a person whose communication is unlawfully intercepted may recover “a reasonable attorney's fee and other litigation costs reasonably incurred.” 18 U.S.C. § 2520(b)(3).
. In his reply, Congressman McDermott contends that
American Petroleum Institute
is in-apposite because the case does not address
. During argument on the fee issue, Congressman McDermott pointed to
Raton Gas
as a case in which the D.C. Circuit reduced a fee award based on the prevailing party's failure to prevail on a response to an affirmative defense. While the court in
Raton Gas
reduced the petitioner’s attorneys' fees for its failure to succeed on two of its four responses to the respondent’s timeliness objections to the petitioner’s two claims, the result of the court rejecting the two responses was that one of the petitioner’s claims — that FERC could not impose any filing fee when a pipeline lowers its price — failed.
. Congressman McDermott attempts to cast Congressman Boehner as a partially prevailing plaintiff because the Court awarded Congressman Boehner only half the amount of punitive damages he sought.
See
Def. Reply 4 (citing
Farrar
v.
Hobby,
. Although Congressman McDermott suggests that Congressman Boehner’s "sensitive position” argument was last minute and subsidiary to his lawfully obtained argument, see Def. Opp'n 3 & Def. Reply 7, Congressman Boehner placed the argument first in his brief to the D.C. Circuit following the Supreme Court’s remand, devoting nine pages out of twenty eight to the argument, see Supp. Br. Eor Appellant at 6-15, Boehner v. McDermott, No. 98-7156 (D.C. Cir Aug. 30, 2001) (arguing that Supreme Court precedent establishes that "public officials in sensitive positions, such as Representative McDermott, may be prohibited from disclosing information without raising serious First Amendment concerns”).
. The parties agree this amount reflects the amount of fees related to Boehner’s amicus work in Bartnicki. Def. Opp’n 12 n. 2.
.
In his initial brief, Congressman McDermott also suggested Congressman Boehner cannot recover fees for his amicus work because the text of 18 U.S.C. § 2520(b) does not expressly permit recovering fees for work in a separate lawsuit. Def. Opp’n 12. Congressman McDermott did not press this argument in his reply. Nor did he raise it during oral argument. And, in any event, the D.C. Circuit has recognized that, even absent specific statutory language, fees may be awarded for time spent preparing an amicus brief in a separate case upon a “clear showing that the time was expended in pursuit of a successful resolution of the case in which fees are being claimed.”
Nat'l Ass'n of Concerned Veterans v. Sec’y of Def.,
.The court did so based on its holding that the record was insufficiently developed as to
. In
Chrapliwy,
the Seventh Circuit reversed the district court’s disallowance of fees for services related to Title VII plaintiffs' efforts to have the federal government debar the defendant from its federal contracts.
Id.
at 765. In reversing the district court, the circuit noted that the plaintiffs' efforts, although not put forth in the actual Title VII litigation, were designed to bring an efficient end to the Title VII litigation and proved successful: "The perseverance of the plaintiffs in their efforts to persuade the government to debar the defendant from its federal contracts led directly to the settlement of the Title VII action.”
Id.
at 766. Similarly, in
Coleman v. Block,
Congressman McDermott also cites
Knop v. Johnson,
. In the end, the court did not award Arizona the entire amount of requested fees because it "fail[ed] to find a 'clear showing’ ... sufficient to justify the total time claimed for filing the
amici curiae
brief.”
Maricopa County,
. Notably, Congressman McDermott also filed an amicus brief in the matter.
See
Br. of Amicus Curiae Representative James A. McDermott in Support of Respondents,
Bart-nicki v. Vopper,
. The defendants in Bartnicki, like Congressman McDermott, knew or had reason to know that the conversations they disclosed were unlawfully intercepted.
. Congressman Boehner seeks interest on the fees and costs incurred prior to October 22, 2004, only. Pl. Mem. 16 n. 5.
. In his memorandum, Congressman Boeh-ner asserts that the Seventh Circuit also follows the minority view. PI. Mem. 16. This, however, is not wholly accurate. Although, as Congressman McDermott quotes in his memorandum, in
Fleming v. County of Kane,
. While no judge of this court appears to have squarely addressed the issue, Judge Sporldn, without discussion, awarded post-judgment interest on attorneys’ fees computed from the date of the merits judgment, which was seven months before the date of the order quantifying the fees.
Jefferson v. Milvets Sys. Tech., Inc.,
. In addition to relying on
Penn Tetra
for its interpretation of "money judgment,” the Third Circuit also looked to a number of other cases, a majority of which arose in the bankruptcy context and none of which applied the term “money judgment” in the fee context or to a situation analogous to that presented here, i.e., where there was a judgment unconditionally entitling a party to damages and a second judgment that quantified the damages.
See Eaves,
. Congressman Boehner also urges the Court to distinguish
Bonjomo
based on a distinction between damages and attorneys’ fees. PL Mem. 19-20. No basis exists, however, for such a distinction. Section 1961 itself draws no distinction. And the policy distinction that Congressman Boehner offers is without merit. As this case makes clear, the same uncertainties exist between the two types of awards: A prevailing party's fee estimate provides the losing party no certainty, especially where, as here, fee issues are in dispute.
. Here, the Court ordered the fee issue held in abeyance pending the outcome of any appeal, see Docket # 83 (Order of October 22, 2004) and, subsequently, the parties jointly requested the Court do so, see Docket # 86.
. Examples of such cases include
American Petroleum Inst. v. EPA,
. The Court also finds that this amount reflects a reasonable award in comparison to the cases cited supra, at note 20.