Grissom v. the Mills Corp.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH R. GRISSOM, II, 

Plaintiff-Appellee,

v.  No. 07-1777

THE MILLS CORPORATION,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(1:06-cv-00961-GBL)

Argued: September 25, 2008

Decided: December 3, 2008

Before TRAXLER, Circuit Judge,

HAMILTON, Senior Circuit Judge, and

James C. DEVER III, United States District Judge

for the Eastern District of North Carolina,

sitting by designation.

Vacated and remanded by published opinion. Senior Judge

Hamilton wrote the opinion, in which Judge Traxler and

Judge Dever joined.

COUNSEL

ARGUED: Stephen Barret Stern, ROSS, DIXON & BELL,

L.L.P., Washington, D.C., for Appellant. Elaine C. Bredehoft,

2 GRISSOM v. THE MILLS CORP.

CHARLSON, BREDEHOFT & COHEN, P.C., Reston, Vir-

ginia, for Appellee. ON BRIEF: Prashant K. Khetan, Jona-

than Cohen, ROSS, DIXON & BELL, L.L.P., Washington,

D.C., for Appellant. Carla D. Brown, Brittany J. Sakata,

CHARLSON, BREDEHOFT & COHEN, P.C., Reston, Vir-

ginia, for Appellee.

OPINION

HAMILTON, Senior Circuit Judge:

In this appeal, the Mills Corporation (Defendant or Mills)

challenges, on several grounds, the district court’s entry of a

judgment awarding its former employee Kenneth Grissom

(Plaintiff) $325,484.08 in attorneys’ fees and costs (the Fee

Award). The Fee Award followed Plaintiff’s acceptance of

Defendant’s $130,000.00 offer of judgment made pursuant to

Federal Rule of Civil Procedure 68 (Rule 68). For reasons that

follow, we vacate the Fee Award and remand for further pro-

ceedings consistent with this opinion.

I.

Defendant, a publicly traded corporation in the business of

developing large commercial real estate projects such as shop-

ping malls, employed Plaintiff as a vice president and project

manager from January 2000 until it discharged him on August

16, 2005, on the asserted ground of poor job performance. At

the time of his discharge, Plaintiff was the project manager

for a redevelopment/expansion project of a retail mall called

the Shops at Riverside Square, in Hackensack, New Jersey

(the Riverside Project). Plaintiff not only disputed Defen-

dant’s assertion of poor job performance, but he also claimed

that Defendant illegally discharged him in retaliation for

engaging in whistleblower activity protected by the Sarbanes-

Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A.

GRISSOM v. THE MILLS CORP. 3

In relevant part, § 1514A provides "whistleblower protec-

tion" for employees of publicly traded companies who are

"discharge[d], . . . harass[ed], or in any other manner discrimi-

nate[d] against . . . in the terms and conditions of employment

because of any lawful act done by the employee":

(1) to provide information . . . which the employee

reasonably believes constitutes a violation of . . . any

rule or regulation of the Securities and Exchange

Commission, or any provision of Federal law relat-

ing to fraud against shareholders, when the informa-

tion or assistance is provided to . . .

***

(C) a person with supervisory authority

over the employee (or such other person

working for the employer who has the

authority to investigate, discover, or termi-

nate misconduct); . . . .

Id. § 1514A(a)(1)(C).

On August 18, 2006, Plaintiff filed the present civil action

against Defendant, alleging four claims. After voluntarily dis-

missing one such claim, Plaintiff filed an amended complaint

alleging the following three claims: (1) common law breach

of contract; (2) common law defamation per se; and (3) viola-

tion of SOX’s whistleblower provision.1 In his breach of con-

tract claim, Plaintiff alleged that Defendant failed to pay him

certain promised bonuses. In his defamation per se claim,

1

Plaintiff had previously filed an administrative complaint against

Defendant with the United States Department of Labor (DOL), alleging

his same SOX whistleblower claim. However, once Plaintiff notified DOL

of his intention to file the present civil action in federal court, DOL dis-

continued its investigation of the allegations in Plaintiff’s administrative

complaint.

4 GRISSOM v. THE MILLS CORP.

Plaintiff alleged that Defendant, "through its representative,

Nicholas Sharr, made false and defamatory statements con-

cerning [Plaintiff] and portrayed him in a light to suggest he

was unfit, inept, lacked integrity, and/or was unable [to] per-

form his duties of employment, which constituted defamation

per se." (J.A. 34). In his SOX whistleblower claim, Plaintiff

alleged that Defendant discharged and defamed him (by

falsely accusing him of misappropriating confidential com-

pany documents) in retaliation for his expressing concern to

his direct supervisor, Nicholas Sharr, and other specifically

named high-level company executives that, in two consecu-

tive Form 8-K Reports that Defendant had filed with the

Securities and Exchange Commission, see 17 C.F.R.

§ 240.13a-11, Defendant had knowingly underreported the

actual projected cost of the Riverside Project by approxi-

mately eighteen percent and twelve percent respectively.

Approximately one month prior to the close of discovery,

on May 11, 2007, Defendant made a Rule 68 offer of judg-

ment in the amount of $130,000.00 (Defendant’s Rule 68

Offer of Judgment). At all times relevant to the present case,

Rule 68 provided, in relevant part:

At any time more than 10 days before the trial

begins, a party defending against a claim may serve

upon the adverse party an offer to allow judgment to

be taken against the defending party for the money

or property or to the effect specified in the offer,

with costs then accrued. If within 10 days after the

service of the offer the adverse party serves written

notice that the offer is accepted, either party may

then file the offer and notice of acceptance together

with proof of service thereof and thereupon the clerk

shall enter judgment. An offer not accepted shall be

deemed withdrawn and evidence thereof is not

admissible except in a proceeding to determine costs.

If the judgment finally obtained by the offeree is not

GRISSOM v. THE MILLS CORP. 5

more favorable than the offer, the offeree must pay

the costs incurred after the making of the offer.

Fed. R. Civ. P. 68 (emphasis added).2 In Marek v. Chesny,

473 U.S. 1 (1985), "the Supreme Court held that costs which

are shifted under Rule 68 include all costs properly awardable

under relevant substantive statutes, including statutes which

define costs to include attorney’s fees." Marryshow v. Flynn,

986 F.2d 689, 691 (4th Cir. 1993).

Significantly, Defendant’s Rule 68 Offer of Judgment spec-

ified:

This Offer of Judgment does not cover any attor-

neys’ fees and costs [Plaintiff] has incurred. Rather,

the issue of attorneys’ fees and costs shall be

resolved in a separate proceeding through a petition

to the Court, where the Court shall determine the

extent to which [Plaintiff] and/or his attorney are

entitled to fees and costs, if any.

(J.A. 72).

On May 22, 2007, Plaintiff accepted Defendant’s Rule 68

Offer of Judgment, and the Clerk of Court entered judgment

in favor of Plaintiff in the amount of $130,000.00. On the

same day, Plaintiff also filed a petition for an award of attor-

neys’ fees and costs (the Petition or Plaintiff’s Petition) with

respect to his SOX whistleblower claim. The Petition, along

with a supplemental petition for an award of attorneys’ fees

and costs filed by Plaintiff (Plaintiff’s Supplemental Petition),

sought "attorneys’ fees related to Plaintiff’s counsel work

2

We note that, effective December 1, 2007, "the language of Rule 68

[was] amended as part of the general restyling of the Civil Rules to make

them more easily understood and to make style and terminology consistent

throughout the rules." Advisory Committee’s Notes on Rule 68. Such

changes were "intended to be stylistic only." Id.

6 GRISSOM v. THE MILLS CORP.

done since the initial complaint filed with [DOL]." (J.A.

1007). As summarized by the district court:

In Plaintiff’s Petition, he seeks $370,305.00 in attor-

neys’ fees, $38,790.15 in non-taxable costs, and

$6,934.01 in taxable costs. In Plaintiff’s Supplemen-

tal Petition, he seeks an additional $27,280.00 in

attorneys’ fees and $3,922.95 in non-taxable costs.

The grand total of attorneys’ fees and non-taxable

costs Plaintiff seeks is $447,232.11.

(J.A. 1007-08). Notably, Plaintiff’s Supplemental Petition,

filed June 8, 2007, sought an award for attorneys’ fees and

costs for "time and expenses expended from May 22, 2007

through June 7, 2007." (J.A. 925).

In ruling on both petitions, the district court concluded that

Plaintiff was a prevailing party under SOX’s fee-shifting pro-

vision. Next, having found that Plaintiff had demonstrated

"that the time and labor, and costs sought [were] seventy-five

percent (75%) reasonable," the district court reduced the total

amount of attorneys’ fees and costs (taxable and non-taxable)

sought by Plaintiff by twenty-five percent to compensate for

what the district court "perceive[d] as duplicated or misutil-

ized time expended." (J.A. 1015). In addition, the district

court subtracted $9,940.00 for non-related work done on Con-

nolly.3 With these subtractions, on July 23, 2007, the district

court awarded Plaintiff a total of $325,484.08 in attorneys’

fees and costs.4

3

The reference to Connolly concerns a civil action between one of

Plaintiff’s former coworkers and Defendant based upon allegations of age

discrimination. Adversarial counsel in the present case were also adver-

sarial counsel in Connolly. Following a jury trial in Connolly in September

2006, the jury found in favor of Defendant.

4

Defendant points out that on July 9, 2007, the district court awarded

Plaintiff $4,082.74 in taxable costs, which appears to be for the same

items of taxable costs included in the Fee Award. Because we vacate the

Fee Award and remand for further proceedings, we instruct the district

court to clarify and/or rectify this double-counting discrepancy on remand.

GRISSOM v. THE MILLS CORP. 7

This timely appeal by Defendant followed. On appeal,

Defendant first argues that Plaintiff is entitled to absolutely no

attorneys’ fees and costs, because he is not a prevailing party

under SOX’s fee-shifting provision, 18 U.S.C. § 1514A(c)(1).

Alternatively, assuming arguendo that we conclude that

Plaintiff is entitled to some amount of attorneys’ fees and

costs as a prevailing party, Defendant seeks vacature of the

Fee Award and a remand with instructions to implement vari-

ous reductions.

II.

Defendant first challenges as erroneous the district court’s

threshold conclusion that Plaintiff is eligible for an award of

attorneys’ fees and costs under SOX. See 18 U.S.C.

§ 1514A(c). In this regard, Defendant argues that Plaintiff did

not prevail on the merits of his SOX whistleblower claim in

any manner, and therefore, cannot recover an award of attor-

neys’ fees and costs as a prevailing party under SOX.

Defendant’s argument raises a legal question, which we

review de novo. Smyth ex rel. Smyth v. Rivero, 282 F.3d 268,

274 (4th Cir. 2002) ("The designation of a party as a prevail-

ing party . . . is a legal determination which we review de

novo."). SOX provides that "[a]n employee prevailing" on his

SOX whistleblower claim, "shall be entitled to all relief nec-

essary to make the employee whole," 18 U.S.C.

§ 1514A(c)(1), including "compensation for any special dam-

ages sustained as a result of the discrimination, including liti-

gation costs, expert witness fees, and reasonable attorney

fees." 18 U.S.C. § 1514A(c)(2)(C). As an initial matter, we

note that although § 1514A(c) does not use the term of art

"prevailing party," as commonly used in other federal fee-

shifting statutes, see, e.g., 42 U.S.C. § 1988(b), the parties

agree, and we think reasonably so, that the jurisprudence

developed with respect to such term of art applies with equal

force in an action in determining whether Plaintiff is "[a]n

employee prevailing" on his SOX whistleblower claim, id.

8 GRISSOM v. THE MILLS CORP.

§ 1514A(c)(1). Cf. Smyth ex rel. Smyth, 282 F.3d at 274 ("The

term ‘prevailing party,’ as used in § 1988(b) and other fee-

shifting provisions, is a ‘legal term of art,’ and is interpreted

consistently—that is, without distinctions based on the partic-

ular statutory context in which it appears.") (some internal

quotation marks omitted) (citations omitted).

To evaluate whether Plaintiff is a prevailing party with

respect to his SOX whistleblower claim, we are guided by the

Supreme Court’s decision in Buckhannon Bd. & Care Home,

Inc. v. West Virginia Dept. of Health & Human Resources,

532 U.S. 598 (2001). See also Doe v. Boston Pub. Sch., 358

F.3d 20, 25 (1st Cir. 2004) (Supreme Court’s reasoning in

Buckhannon is presumed to apply generally to all fee-shifting

statutes using the prevailing party terminology); (T.D. v.

LaGrange Sch. Dist. No. 102, 349 F.3d 469, 474-75 (7th Cir.

2003) (Buckhannon definition of "prevailing party" extends

consistently to federal fee-shifting provisions). In Buckhan-

non, the Supreme Court considered the question of whether

the term of art "prevailing party," as employed by Congress

in numerous fee-shifting statutes, "includes a party that has

failed to secure a judgment on the merits or a court-ordered

consent decree, but has nonetheless achieved the desired

result because the lawsuit brought about a voluntary change

in the defendant’s conduct." 532 U.S. at 600. In answering

this question in the negative, the Court held that for a party

to be considered a "prevailing party," there must be a "mate-

rial alteration of the legal relationship of the parties," 532 U.S.

at 604 (internal quotation marks omitted), and there must be

"judicial imprimatur on the change," id. at 605 (emphasis in

original). Notably, quoting Black’s Law Dictionary, the Court

also made clear that "‘[a] party in whose favor a judgment is

rendered, regardless of the amount of damages awarded . . .,"

is a "prevailing party" for purposes of the various federal fee-

shifting statutes. Id. at 603 (quoting Black’s Law Dictionary

1145 (7th ed. 1999)) (alteration in original).

GRISSOM v. THE MILLS CORP. 9

Here, Plaintiff is a prevailing party under the Buckhannon

test. First, on May 22, 2007, judgment in favor of Plaintiff

and against Defendant was entered for $130,000.00. Such

judgment created a material alteration of the legal relationship

between Plaintiff and Defendant by imposing upon Defendant

a legally enforceable obligation to pay Plaintiff $130,000.00.

Utility Automation 2000, Inc. v. Choctawhatchee Electric

Cooperative, Inc., 298 F.3d 1238, 1248 (11th Cir. 2002)

("Rule 68 judgment represents a judicially sanctioned change

in the relationship between the parties.") (internal quotation

marks omitted). Second, there is judicial imprimatur on the

change in that the district court has the inherent power to

compel Defendant to satisfy such judgment. Id. (accepted

offer of judgment made pursuant to Rule 68 has necessary

judicial imprimatur per Buckhannon "in the crucial sense that

it is an enforceable judgment against the defendant"). Cf.

Spallone v. U.S., 493 U.S. 265, 276 (1990) (in selecting

means to enforce consent judgment, district court is entitled

to rely on axiom that courts have inherent power to enforce

compliance with lawful orders through civil contempt). In

sum, we hold that Plaintiff is a "prevailing party" with respect

to his SOX whistleblower claim, and thus is statutorily eligi-

ble for an award of attorneys’ fees and costs under SOX.5

5

Perhaps anticipating this holding, Defendant alternatively argues that

the $130,000.00 judgment entered in Plaintiff’s favor was de minimis in

light of Plaintiff’s far higher pretrial settlement demands, resulting in

Plaintiff "at best, achiev[ing] a ‘technical victory’ that does not merit an

award of attorneys’ fees" and costs. (Defendant’s Opening Br. at 24).

Defendant also alternatively argues that the district court abused its discre-

tion in awarding Plaintiff any amount of attorneys’ fees and costs,

because, according to Defendant, Plaintiff misappropriated company doc-

uments in anticipation of litigation. After considering the entire record on

appeal, we reject both arguments, finding no abuse of discretion in the dis-

trict court’s threshold decision to award Plaintiff some amount of attor-

neys’ fees and costs as a prevailing party on his SOX whistleblower claim.

10 GRISSOM v. THE MILLS CORP.

III.

Defendant next argues that the district court erred in award-

ing Plaintiff attorneys’ fees and costs accrued after May 11,

2007, the date of its Rule 68 Offer of Judgment. In support,

Defendant directs our attention to the express language of

Rule 68: "More than 10 days before the trial begins, a party

defending against a claim may serve on an opposing party an

offer to allow judgment on specified terms, with the costs then

accrued." Fed. R. Civ. P. 68 (emphasis added).6

Plaintiff responds that he is entitled to attorneys’ fees and

costs beyond May 11, 2007, despite the just underlined lan-

guage of Rule 68, because the language in Defendant’s Rule

68 Offer of Judgment "contemplates the payment of fees and

costs after the date of the Offer." (Plaintiff’s Br. at 45). In

support, Plaintiff points to the following language in Defen-

dant’s Rule 68 Offer of Judgment:

This Offer of Judgment does not cover any attor-

neys’ fees and costs Grissom has incurred. Rather,

the issue of attorneys’ fees and costs shall be

resolved in a separate proceeding through a petition

to the Court, where the Court shall determine the

extent to which Grissom and/or his attorney are enti-

tled to fees and costs, if any.

(J.A. 72).

We agree with Defendant that the district court erred in

awarding Plaintiff attorneys’ fees and costs accrued after May

6

Notably, Defendant did not dispute below and does not dispute in its

opening appellate brief that Rule 68’s use of the term "costs," in the con-

text of the present case, includes attorneys’ fees. Accordingly, we assume

arguendo, for purposes of addressing Defendant’s argument on this issue,

that Rule 68’s use of the term "costs," in the context of this case, includes

attorneys’ fees.

GRISSOM v. THE MILLS CORP. 11

11, 2007, the date of its Rule 68 Offer of Judgment. First,

Rule 68, by its plain and unambiguous terms, provides for

entry of judgment in favor of the plaintiff on terms specified

in an offer of judgment, plus pre-offer costs (here, including

attorneys’ fees). The contract language to which Plaintiff

points in no way makes attorneys’ fees and costs accrued after

Defendant’s Rule 68 Offer of Judgment part of the offer of

such offer of judgment. The language upon which Plaintiff

relies says nothing about altering the normal operation of

Rule 68 to allow Plaintiff to recover costs beyond May 11,

2007. Indeed, when the language upon which Plaintiff relies

is read, as it should be, in conjunction with Rule 68, it is clear

that the reference to "the issue of attorneys’ fees and costs"

pertains only to attorneys’ fees and costs accrued as of the

date of the Defendant’s Rule 68 Offer of Judgment. Cf.

Marek, 473 U.S. at 7 (if amount of costs is not specified in

Rule 68 offer of judgment, district court is obliged to calcu-

late costs then accrued under the statute or contract at issue

and add that to the final judgment). In sum, we hold the dis-

trict court erred in awarding Plaintiff post-offer attorneys’

fees and costs. Accordingly, we vacate the district court’s

final judgment and remand for further proceedings to correct

this error.

IV.

Defendant next contends that, assuming arguendo Plaintiff

is entitled to recover some amount of attorneys’ fees and costs

as a prevailing party on his SOX whistleblower claim, the dis-

trict court abused its discretion in arriving at the amounts

awarded. In this regard, Defendant attacks the district court’s

analysis on numerous grounds. The following three are wor-

thy of us specifically addressing: (1) Plaintiff failed to carry

his burden of proof that the hourly rate sought for each of his

attorneys was reasonable; (2) the district court abused its dis-

cretion when determining the number of hours reasonably

expended by Plaintiff’s attorneys; and (3) the district court’s

finding that the deadlines it imposed required Plaintiff to

12 GRISSOM v. THE MILLS CORP.

work at a faster pace is clearly erroneous, and thus, the district

court erred by factoring such finding into its Fee Award.7

We review a district court’s award of attorney’s fees for

abuse of discretion. Johnson v. City of Aiken, 278 F.3d 333,

336 (4th Cir. 2002). Indeed, "[o]ur review of the district

court’s award is sharply circumscribed; we have recognized

that because a district court has close and intimate knowledge

of the efforts expended and the value of the services rendered,

the fee award must not be overturned unless it is clearly

wrong." Plyler v. Evatt, 902 F.2d 273, 277-78 (4th Cir. 1990)

(internal quotation marks, citations, and alteration marks

omitted).

Here, the parties agree that in calculating an appropriate

attorneys’ fee award, a district court must first determine the

lodestar amount (reasonable hourly rate multiplied by hours

reasonably expended), applying the Johnson/Barber factors

when making its lodestar determination. Barber v. Kimbrell’s

Inc., 577 F.2d 216, 226 (4th Cir. 1978) (adopting twelve fac-

tor test set forth in Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other

grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989)). See

also Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983)

(approving twelve factors set forth in Johnson); Trimper v.

City of Norfolk, 58 F.3d 68, 73-74 (4th Cir. 1995) (applying

Johnson/Barber factors in reviewing fee award under § 1988).

This court has summarized the Johnson factors to

include: (1) the time and labor expended; (2) the

novelty and difficulty of the questions raised; (3) the

skill required to properly perform the legal services

rendered; (4) the attorney’s opportunity costs in

pressing the instant litigation; (5) the customary fee

for like work; (6) the attorney’s expectations at the

7

We reject the remainder of Defendant’s other grounds of attack as

being without merit.

GRISSOM v. THE MILLS CORP. 13

outset of the litigation; (7) the time limitations

imposed by the client or circumstances; (8) the

amount in controversy and the results obtained; (9)

the experience, reputation and ability of the attorney;

(10) the undesirability of the case within the legal

community in which the suit arose; (11) the nature

and length of the professional relationship between

attorney and client; and (12) attorneys’ fees awards

in similar cases.

Spell v. McDaniel, 824 F.2d 1380, 1402 n.18 (4th Cir. 1987).

The parties also agree that after calculating the lodestar fig-

ure, the "court then should subtract fees for hours spent on

unsuccessful claims unrelated to successful ones." Johnson v.

City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002). "Once the

court has subtracted the fees incurred for unsuccessful, unre-

lated claims, it then awards some percentage of the remaining

amount, depending on the degree of success enjoyed by the

plaintiff." Id.

Of the three arguments by Defendant in challenge to the

amount of the Fee Award that we specifically address, the

first takes aim at the district court’s determinations as to the

reasonable hourly rates of Plaintiff’s various counsel to be

used in making the lodestar calculation. Essentially, Defen-

dant challenges the sufficiency of the evidence in support of

the district court’s hourly rate determinations.

[D]etermination of the hourly rate will generally be

the critical inquiry in setting the reasonable fee, and

the burden rests with the fee applicant to establish

the reasonableness of a requested rate. In addition to

the attorney’s own affidavits, the fee applicant must

produce satisfactory specific evidence of the prevail-

ing market rates in the relevant community for the

type of work for which he seeks an award. Although

the determination of a market rate in the legal pro-

14 GRISSOM v. THE MILLS CORP.

fession is inherently problematic, as wide variations

in skill and reputation render the usual laws of sup-

ply and demand largely inapplicable, the Court has

nonetheless emphasized that market rate should

guide the fee inquiry.

Plyler, 902 F.2d at 277 (internal quotation marks and citations

omitted). See also Blum v. Stenson, 465 U.S. 886, 895 n.11

(1984) (fee applicant must "produce satisfactory evidence—in

addition to the attorney’s own affidavits—that the requested

rates" align with prevailing rates). "[T]he community in

which the court sits is the first place to look to in evaluating

the prevailing market rate." Rum Creek Coal Sales, Inc. v.

Caperton, 31 F.3d 169, 179 (4th Cir. 1994).

In support of his burden to establish the prevailing market

rate of attorneys’ fees in the relevant community where the

district court sits (i.e., the Eastern District of Virginia), Plain-

tiff: (1) filed attorney billing records and affidavits of his lead

counsel and junior members of the firm representing him; (2)

pointed to several fee awards by courts in other discrimination

cases; and (3) filed a copy of a schedule of prevailing hourly

rates for litigation counsel in the Washington, D.C. area,

known as the Laffey Matrix, maintained by the United States

Attorney’s Office for the District of Columbia, pertaining to

the time period June 1, 2003 through May 1, 2004.

Plaintiff’s lead counsel (a partner with Charlson, Bredehoft,

and Cohen, P.C., in Reston, Virginia), Elaine Bredehoft (Lead

Counsel Elaine Bredehoft), was the only attorney who

attested to her own normal billing rate. She was also the only

attorney who attested to the respective normal billing rates of

the other attorneys in her firm. Lead Counsel Elaine Brede-

hoft attested that her normal billing rate from August 15, 2005

until April 30, 2006 was $400.00 per hour, while her normal

billing rate from May 1, 2006 forward was $450.00 per hour.

She also attested as follows to the normal billing rates and the

GRISSOM v. THE MILLS CORP. 15

years of experience of the following other attorneys in her

firm, during the relevant time period:

TABLE 1

Years’

Name Experience Hourly Rate

Partner Peter Cohen 18-19 $400.00

Associate S. Christian Wickwire 6-7 $350.00

Associate Carla Brown 5-6 $350.00

Associate Anjuma Goswami 2-3 $325.00

Associate Brittany Sakata 1 $300.00

Associate Jennifer Harper 1 $250.00-275.00

Notably, Plaintiff did not file any affidavits of attorneys

outside the firm of Charlson, Bredehoft, and Cohen, P.C.,

regarding the prevailing market rates of attorneys in the East-

ern District of Virginia for similar work.

The two fee awards in the other cases cited by Plaintiff

most helpful to Plaintiff’s position are: Scott v. Hoynanian

Enterprises, Inc., No. 03-1435-A (E.D.Va. Aug. 2004) (preg-

nancy discrimination, retaliation, FMLA and constructive

fraud—$350.00 per hour approved for Lead Counsel Elaine

Bredehoft) and Stiles v. Town of Leesburg, No. 00-628

(E.D.Va. Jan. 2001) (§ 1983 whistleblower retalia-

tion—$290.00 per hour approved for Lead Counsel Elaine

Bredehoft).

The Laffey Matrix submitted by Plaintiff, which the Dis-

trict of Columbia Circuit has accepted in general as "a useful

starting point" for determining the prevailing hourly rate for

litigation counsel in Washington, D.C., Covington v. District

of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995), lists the

following hourly rates for the time period June 1, 2003

through May 31, 2004:

16 GRISSOM v. THE MILLS CORP.

TABLE 2

Years’ Experience Hourly Rate

20+ $380.00

11-19 $335.00

8-10 $270.00

4-7 $220.00

1-3 $180.00

In making its loadstar calculations, the district court

applied, without reduction, the hourly rates requested by

Plaintiff. According to Defendant in its Opening Appellate

Brief, Lead Counsel Elaine Bredehoft and Partner Cohen

should charge no more than $300.00 per hour; Associates

Brown and Wickwire no more than $250.00 per hour; Asso-

ciates Goswami and Harper no more than $200.00 per hour;

and Associate Sakata no more than $180.00 per hour.

Keeping in mind our extremely deferential standard of

review in this area, we hold the district court abused its dis-

cretion in basing the Fee Award on the hourly rates requested

by Plaintiff, without reduction. Plaintiff’s prevailing-hourly-

rate evidence is inadequate to support the award. Critically,

beyond the affidavit of Lead Counsel Elaine Bredehoft, Plain-

tiff offered no specific evidence that the hourly rates sought

for his attorneys coincided with the then prevailing market

rates of attorneys in the Eastern District of Virginia of similar

skill and for similar work, which our case law required him

to do. Plyler, 902 F.2d at 277 ("In addition to the attorney’s

own affidavits, the fee applicant must produce satisfactory

specific evidence of the prevailing market rates in the relevant

community for the type of work for which he seeks an

award.") (internal quotation marks omitted).

The cases to which Plaintiff points as examples of similar

fee awards in like cases are insufficient to carry Plaintiff’s

GRISSOM v. THE MILLS CORP. 17

burden of proof. For example, Plaintiff’s best case shows that

Lead Counsel Elaine Bredehoft was awarded $350.00 per

hour in August 2004. In her affidavit, Lead Counsel Elaine

Bredehoft attested that she started billing time on Plaintiff’s

case in August 2005 at $400.00 per hour (a fourteen percent

increase over the $350.00 per hour she charged Plaintiff just

a year earlier) and by May 2006, she billed time on Plaintiff’s

case at $450.00 per hour (a twenty-nine percent increase over

the $350.00 per hour she charged Plaintiff less than two years

earlier). Notably, these percentage increases cannot simply be

attributed to economic inflation for the same time periods.

The annual rate of inflation in the United States for 2005 was

3.39 percent and 3.24 percent for 2006. See Inflation-

Data.com.

Moreover, the Laffey Matrix is also insufficient to carry

Plaintiff’s burden of proof. First, Plaintiff has provided no

evidence that the Laffey Matrix, which pertains to hourly

rates of litigation attorneys in Washington, D.C., is a reliable

indicator of the hourly rates of litigation attorneys in Reston,

Virginia, a suburb of Washington, D.C. Second, even when

adjusted for inflation, every hourly rate requested by Plaintiff

exceeds, in some cases by a significant amount, the hourly

rates listed in the Laffey Matrix.

After considering the parties’ arguments and the entire

record in this case, we hold the district court abused its discre-

tion in applying hourly rates above the following hourly rates:

18 GRISSOM v. THE MILLS CORP.

TABLE 3

Name Hourly Rate

Partner Elaine Bredehoft $380.00

Partner Peter Cohen $335.00

Associate S. Christian Wickwire $250.00

Associate Carla Brown $250.00

Associate Anjuma Goswami $200.00

Associate Jennifer Harper $200.00

Associate Brittany Sakata $180.00

See Depaoli v. Vacation Sales Assocs., 489 F.3d 615 (4th Cir.

2007) (reducing attorney’s hourly rate from $305.00 and

$325.00 per hour sought by plaintiff to $225.00 per hour

because plaintiff produced no evidence of prevailing market

rate of $305.00 and $325.00 per hour; the only relevant evi-

dence in the case showed that plaintiff’s attorney regularly

charged plaintiff $225.00 per hour). Accordingly, we instruct

the district court on remand to recalculate the Fee Award

using the hourly rates we just set forth in Table 3, supra.

We now turn to Defendant’s argument pertaining to the

number of hours expended by Plaintiff’s attorneys. Defendant

contends that this was a relatively simple case that was over-

staffed and overworked by Plaintiff’s attorneys, who sought

compensation for more than 1,000 hours of attorney time and

more than 250 hours of paralegal time. By way of example of

the unreasonableness of the hours billed, Defendant points to

the more than 100 hours billed for drafting various discovery

motions. As Defendant notes, however, the billing records

indicate that counsel for Plaintiff began billing for the prepa-

ration of a motion to compel three months before discovery

had even begun, and the records further show that counsel

began billing for another motion the day after the relevant dis-

covery request was served. Defendant argues, inter alia, that

GRISSOM v. THE MILLS CORP. 19

the timing of Plaintiff’s counsel’s preparation of these two

discovery motions shows that Plaintiff billed time in attempts

to contrive discovery disputes. Because the appellate record is

inadequate for us to intelligently address this argument, we

instruct the district court on remand to reconsider the reason-

ableness of the hours claimed by Plaintiff’s counsel, and the

district court should specifically and expressly address Defen-

dant’s arguments regarding Plaintiff’s discovery motions. Per-

haps the district court will explain that it had taken

Defendant’s argument into account in reducing the total

amount of time, labor, and costs by twenty-five percent.

Nonetheless, Defendant has raised enough questions in this

regard to warrant further explanation by the district court.

Finally, we hold the district court clearly erred in finding

that "[t]he deadlines imposed by the court required Plaintiff’s

counsel to work at a faster pace . . . ." (J.A. 1018). Plaintiff

does not dispute Defendant’s assertion in its opening appellate

brief that the deadlines imposed by the district court in this

case were "the standard deadlines for litigating any case in the

Eastern District" of Virginia. (Defendant’s Opening Br. at

55). Accordingly, in recalculating the Fee Award on remand,

the district court should not take into account any notion that

the deadlines imposed by the district court required Plaintiff’s

counsel to work at a faster pace.

V.

In conclusion, we vacate the Fee Award and remand to the

district court for further proceedings consistent with this opin-

ion. On remand, we instruct the district court to recalculate

the Fee Award. In so doing, we instruct the district court to:

(1) clear up the double-counting discrepancy surrounding its

July 9, 2007 award of $4,082.74 in taxable costs in favor of

Plaintiff while seemingly awarding the same amount in the

Fee Award; (2) not award Plaintiff any attorneys’ fees or costs

accrued after May 11, 2007; (3) recalculate the Fee Award

using the hourly rates we set forth in Table 3, supra; (4)

20 GRISSOM v. THE MILLS CORP.

reconsider the reasonableness of the hours sought and specifi-

cally and expressly address Defendant’s argument regarding

Plaintiff’s discovery motions; and (5) not take into account

any notion that the deadlines posed by the district court

required Plaintiff’s counsel to work at a faster pace than oth-

erwise required in the Eastern District of Virginia.

VACATED AND REMANDED