BONE v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOHN BONE, TIMOTHY MILES, THE )

NATIONAL FEDERATON OF THE )

BLIND, INC., AND DISABILITY )

RIGHTS NORTH CAROLINA, )

)

Plaintiffs, )

) 1:18CV994

v. )

)

UNIVERSITY OF NORTH CAROLINA )

HEALTH CARE SYSTEM, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Before the court are the parties’ post-judgment motions

requesting an award of attorneys’ fees, expenses, and costs.

Plaintiffs move for a statutory award of attorneys’ fees, expenses,

and costs as prevailing parties. (Doc. 172.) Defendant University

of North Carolina Health Care System (“UNCHCS”) moves for an award

of costs based on a prior offer of judgment that was rejected.

(Doc. 171.) For the reasons set forth below, Plaintiffs’ motion

will be granted to the extent of the award noted herein, and

UNCHCS’s motion for costs will be denied.

I. BACKGROUND

This action involved challenges to UNCHCS’s practices for

providing medical care to sight-impaired patients of its health

care system. The court has written extensively on the background

of this case. (See Docs. 44, 98, 125, 143, 167.) The principal

facts as they relate to consideration of the pending motions are

set out below.

Plaintiff Timothy Miles is a constituent of Plaintiff

Disability Rights North Carolina (“DRNC”), which advocates for the

disabled. He is also a member of Plaintiff National Federation

for the Blind, Inc. (“NFB”), a non-profit corporation organized to

“promote[] the general welfare of the blind,” which claims some

50,000 members, the majority of whom are blind. (Doc. 18 ¶ 9;

Doc. 103-12 ¶ 4.) Miles has been a patient at UNCHCS for over

twenty years. (Doc. 103-4 ¶ 11.) During that time and the

pendency of this litigation, Miles visited multiple UNCHCS clinics

at least annually, with somewhere near 100 such trips in the past

four years alone. (Doc. 167 at 4.) He is legally blind and

suffers from a condition known as oculocutaneous albinism, an

extreme sensitivity to light. (Doc. 103-4 ¶ 6; Doc. 108-12 at

3.) As a result, he cannot read standard print documents on many

occasions. (Doc. 163-4 ¶ 4.) He has a computer configured with

JAWS1 Fusion, a screen access software that reads aloud the text

on a computer screen or iPhone and allows a user to edit documents

much like the voice-dictation feature on a cell phone. (Doc. 120-

2 at 13-14.) While he can use this software to access various

1 JAWS is an acronym for “Job Access with Speech.”

websites, he maintains he was unable to use it to access UNCHCS

records.

Like Miles, Plaintiff John Bone is a constituent of DRNC and a

member of NFB. (Doc. 18 ¶ 7.) He is also “blind and uses Braille

to make and receive written communications.” (Id.) Bone received

services from Nash General Hospital, an alleged affiliate of

UNCHCS, which failed to provide him Braille materials related to

his medical services. (Doc. 18 ¶¶ 15-22.)

Similarly, Dr. Ricky Scott, a supplemental declarant in

support of the organizational Plaintiffs in this case, is legally

blind, a long-time patient of UNCHCS, and a DRNC constituent.

(Doc. 151-4 ¶¶ 3-4; Doc. 151-1 at 6; Doc. 103-14 ¶ 4.) Dr. Scott

routinely visits UNC Family Medicine West, “averaging two to three

visits each year.” (Doc. 151-4 ¶¶ 4-5.) He cannot “read printed

materials,” but he can “read documents in Braille or in accessible

electronic formats that [he] can access on [his] computer using

screen reader software, which converts written text to speech or

to Braille on a refreshable Braille display.” (Doc. 151-4 ¶ 3;

see also Doc. 163-5 ¶ 3.)

Defendant UNCHCS is an integrated not-for-profit health care

system owned by the state of North Carolina and established by

state law. See N.C. Gen. Stat. § 116-37. Its principal place of

business is Chapel Hill, North Carolina. (Doc. 18 ¶ 13.)

Currently, it “consists of UNC Hospitals and its provider network”

along with “eleven affiliate hospitals and hospital systems across

the state.” (Id.) UNCHCS also “employs and contracts with

numerous providers for the delivery of medical services in its

facilities.” (Id.) As the University of North Carolina website

explains, “UNC Health provides care to patients in all of the

state’s 100 counties through its 11 hospitals, 13 hospital

campuses, and hundreds of clinical practices” and “is one of the

nation's leading academic health care systems, a $5.4 billion

enterprise, with more than 33,000 employees from

Hendersonville to Jacksonville.” UNC Health, https://www.north

carolina.edu/institution/unc-health-care-system/ (last visited

March 7, 2024). UNCHCS, like many other hospital systems around

the nation, uses Epic System (“Epic”), a third-party platform, to

maintain its electronic medical records. (See Doc. 121-8 at 3;

Doc. 103-28 at 8; Doc. 152 at 5.)

This lawsuit arises out of problems that Bone,2 Miles, and

Dr. Scott encountered when receiving care at UNCHCS providers.

Because Miles is legally blind, he cannot read standard print

documents (font size 12-point or less), even with the help of

prescription glasses. (Doc. 163-4 ¶ 4.) Thus, years ago, Miles

2 Bone had similar experiences as Miles and Dr. Scott. (See Doc. 18

¶¶ 15-22.) However, Bone’s claims relate to his interactions with Nash

General Hospital, an alleged “affiliate” of UNCHCS that has been

dismissed from this lawsuit and is excluded from Plaintiffs’ motion for

attorneys’ fees. Bone’s claim for attorneys’ fees remains only to the

extent of his damages claim against UNCHCS as an alleged affiliate.

asked UNCHCS to provide him with large print versions of documents

commonly provided to patients during the course of a visit,

including, for example, after-visit summaries, general consent to

treatment forms, medical bills, and intake questionnaires. (Doc.

103-4 ¶ 13.) Yet for years - and despite Miles’s repeated

requests - UNCHCS providers regularly gave him standard print or

otherwise inaccessible documents. (Id.) By Miles’s calculation,

from January 2015 to September 2018, he visited a UNCHCS facility

more than 35 times, yet each time he was sent home with (or later

mailed) “at least one inaccessible standard print document.” (Id.

¶ 14; see Doc. 105-4 at 17-225 (copies of standard print documents

that Miles retained from this time period).) As reflected in the

record, the inaccessible standard print materials that Miles

received and retained from January 2015 to September 2018 total

approximately 200 pages. (See Doc. 105-4 at 21-225.) Such

documents include bills, physician reports, receipts, after-visit

summaries, discharge documents, medical records, appointment

reminders, feedback-request forms, welcome packets, and

instructions. (See id. at 18–20 (index of standard print documents

dated between January 6, 2015, and September 18, 2018).) According

to Miles, this number actually “under-represent[s]” how many

inaccessible documents he received from UNCHCS during this period,

as he was often required to review and sign standard print

documents “during the check in process for these visits, copies of

which [he] did not always receive and therefore do[es] not

possess.” (Doc. 103-4 ¶ 14.)

Like Miles, Dr. Scott activated a UNC MyChart account several

years ago with the understanding that it would allow him “to review

[his] after-visit summaries and lab results in an accessible

electronic format.” (Doc. 103-14 ¶ 9.) Although he “regularly

use[s]” a screen reader program (JAWS) “to access properly designed

electronic documents and websites[,] . . . the documents available

on [his] UNC MyChart account,” at least as of March 2021, “were

not readable by JAWS[,] and [he] could not access any of the

information in these documents.” (Id. ¶ 10.) Eventually, Dr.

Scott “asked UNC Family Medicine West to stop sending [him]

documents through UNC MyChart and [to] cancel [his] account because

it [was] inaccessible and useless to [him].” (Id. ¶ 11.) In

addition, Dr. Scott inconsistently received disability accessible

forms during his visits to UNCHCS providers, sometimes receiving

auxiliary services (Doc. 152-22 ¶¶ 5-6) and other times receiving

standard print forms that he could not read (Doc. 163-5 ¶ 4).

Though Plaintiffs reached out to UNCHCS to attempt to resolve

the repeated failures to provide Miles and Dr. Scott with

accessible documentation from medical visits, consistent lapses

led to the filing of this action in December 2018. (See Doc. 1.)

The amended complaint (Doc. 18) alleged that UNCHCS denied “blind

individuals an equal opportunity to access their health care

information” in violation of Titles II and III of the Americans

with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134,

12181-12189; Section 504 of the Rehabilitation Act, 29 U.S.C.

§ 794(a) (“Section 504”); and Section 1557 of the Patient

Protection and Affordable Care Act, 42 U.S.C. § 18116 (“Section

1557” of the “ACA”) (collectively, the “Acts”). (Doc. 1 ¶ 1;

accord Doc. 18 (amended complaint) ¶ 1). Even after the filing of

this action, Miles and Scott continued to receive, from time to

time, documents that failed to meet their disability needs.

UNCHCS (and former Defendant Nash Hospitals, Inc.) each moved

to dismiss the amended complaint pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). (Docs. 20, 28.) The magistrate

judge recommended that the motions be granted in part and denied

in part. (Doc. 44 at 1.) As to the claims against UNCHCS, the

magistrate judge recommended that the court deny the motion to

dismiss entirely, concluding that Miles, Bone, NFB, and DRNC had

plausibly stated a claim. (Id. at 14-24, 40-46, 51.)3 On March

5, 2020, this court adopted the magistrate judge’s recommendation,

thereby allowing Plaintiffs’ claims against UNCHCS to

3 As to the claims against Nash, the magistrate judge recommended

dismissal of all but Bone’s claims for damages, concluding that neither

Bone, NFB, nor DRNC had standing to pursue future-looking injunctive

relief against Nash. (Doc. 44 at 32, 37-38, 50-51.)

proceed. (Doc. 57 at 1-3.)4

UNCHCS later moved for judgment on the pleadings (Doc. 68),

relying in large part on arguments made in its motion to

dismiss. (See, e.g., Doc. 98 at 20-21 (comparing arguments).) The

magistrate judge recommended that that motion also be denied (id.

at 1), and this court adopted that recommendation (Doc. 106).5

Plaintiffs and UNCHCS subsequently filed cross-motions for

summary judgment (see Docs. 103, 107, 109, 111, 112), and the

magistrate judge issued a detailed 188-opinion recommending that

the court find that UNCHCS violated Bone’s and Miles’s rights and

that the parties’ motions therefore be granted in part and denied

in part “such that th[e] action shall proceed to trial on the

issues of deliberate indifference and damages” (Doc. 125 at

187).

Shortly thereafter, but before this court had reviewed the

magistrate judge’s recommendation, the parties settled all

remaining damages claims in the case against UNCHCS during a court-

ordered mediation. (Doc. 146; Minute Entry 02/08/2022.) Pursuant

to the settlement, Miles and Bone stipulated to a voluntary

dismissal with prejudice of their claims for damages (Doc. 147 at

1), UNCHCS stipulated that “a violation of the ADA occurred during

4 The court dismissed all ADA Title III claims against Nash.

5 Bone, NFB, and DRNC thereafter settled all claims for damages against

Nash, resulting in Nash’s dismissal from this lawsuit. (See Docs. 96,

97.)

the period between October 2016 and October 2018” (Doc. 146 ¶ 7),

and UNCHCS agreed that “Plaintiffs to the Civil Action are entitled

to reasonable attorneys’ fees and costs, as determined under the

ADA, for all claims resolved through settlement between UNCHCS and

Plaintiffs” (Docs. 139-2 at 10, 139-3 at 10). Because Bone settled

each of his remaining claims, he was voluntarily dismissed as a

party to the case. (See Docs. 145, 146, 147.)

On August 3, 2022, UNCHCS served an offer of judgment on

Plaintiffs pursuant to Federal Rule of Civil Procedure 68. (Doc.

171-1.) The offer proposed a nine-page consent decree, the

principal relief of which included the following injunctive relief

across multiple UNCHCS healthcare providers and affiliates:

• Include blind individuals in all UNCHCS and UNC Physician

Network, LLC (“UNCPN”) clinics communications, programs,

and activities, unless doing so would cause an undue

burden.

• Provide all blind individuals an equal opportunity to

participate in or benefit from aid, benefits, or services,

unless doing so would cause an undue burden or fundamental

alteration to UNCHCS’s Covered Affiliates’ programs or

services.

• Ensure the furnishing of “accessible formats” (defined to

include Braille, large print, audio, or digitally navigable

formats) where necessary to afford blind individuals an

equal opportunity to participate in and enjoy the benefits

of UNCHCS and UNCPN services, unless doing so would cause

an undue burden.

• Not discriminate against blind individuals because they

oppose any unlawful practice or coerce or interfere with

their right to enjoyment of any protected practice.

• Provide policies and training to UNCHCS, UNCPN, and all

entities managed or wholly-owned by UNCHCS.

• Designate an employee Accessibility Coordinator, who shall

report directly to the Chief Audit and Compliance Officer

of UNCHCS, to oversee and monitor compliance with the

consent decree.

• Confirm that applicable practices and policies for

providing print communications in “accessible formats”

address the following provisions:

o Upon oral or written request of a blind person, all

clinics in the UNC Faculty Practice, UNC Hospitals,

and UNCPN shall use a uniform process to “flag” in

the electronic health record system and any other

relevant databases/software systems the requested

accessible format as that person’s default format.

o Provide the default accessible format to all blind

individuals for all communications (including

notices, forms, questionnaires, visit summaries,

follow-up instructions, prescriptions instructions,

invoices, billing, and other correspondence.

o Confirm that MyChart is fully compatible with commonly

used screen reader software (such as JAWS) and that

the font size for text and documents within UNC

MyChart can be enlarged by blind individuals using

generally available computer functionalities.

o Upon initial request of a blind person, mail any

outstanding large print (otherwise offered in regular

print) or Braille (where applicable) invoices or bills

within one week after the invoices/bills were

prepared, and those blind patients shall have the same

time (from date of mailing) as non-blind patients

before the account is sent to collections.

o Provide large print general patient materials to blind

patients within one week of the date they would have

been provided in regular print.

o Provide Braille materials to blind patients within

two to five weeks of when such materials would have

been provided in regular print.

o Provide the above policies and training to facilities

wholly-owned or managed by UNCHCS and encourage their

use of the same.

• Conduct manual accessibility audits of the UNCHCS websites,

www.unchealthcare.org, www.uncmedicalcenter.org, and

www.uncpn.com; www.findadoc.unchealthcare.org;

www.rexhealth.com; www.uncchildrens.org; and

www.chathamhospital.org.

• Implement training and monitoring for the consent decree.

• Provide guidance and assistance to facilities managed or

wholly-owned by UNCHCS on how to comply with obligations

to blind patients.

• Maintain information on websites notifying the public that

accessible formats are provided free of charge in a timely

manner.

• Provide a mechanism for requiring UNCHCS to address any

alleged violation of the consent decree within 30 days,

then court enforcement can be sought.

• Provide for the court’s continuing jurisdiction over

enforcement of the consent decree.

(See Doc. 171-1.) Plaintiffs did not accept the offer of judgment

within the deadline of the rule.

Instead, on August 12, 2022, the remaining Plaintiffs, Miles,

NFB, and DRNC, filed a motion for a permanent injunction. (Doc.

151.) Plaintiffs argued that UNCHCS was unwilling to adopt

policies and procedures to provide effective communication to

blind patients and urged the court to do the following across the

UNCHCS network: (1) establish a process for collecting information

from patients at registration on their needs; (2) provide

accessible formats to patients in a timely manner; (3) ensure that

alternate document formats comply with certain guidelines,

documents on MyChart contain proper metadata tagging and conform

to Web Content Accessibility Guidelines (“WCAG”), and Braille

transcribers are certified; and (4) engage in monitoring and

training. (Doc. 151-1.) UNCHCS responded in opposition (Doc.

152), and Plaintiffs replied (Doc. 153). On November 18, 2023,

UNCHCS moved to exclude Plaintiffs’ proposed experts, whose

reports were relied upon in Plaintiffs’ motion for permanent

injunction, even though the time for such challenges had passed.

(Doc. 158.) Plaintiffs responded in opposition. (Doc. 160.)

On December 13, 2022, the day before the scheduled hearing on

the motion for permanent injunction and to support its contention

that no injunctive relief should be granted, UNCHCS disclosed

additional steps it had recently taken and planned to implement to

better provide equally effective access to sight-impaired

patients. (Doc. 162.)

On December 14, 2022, the court heard oral argument on

Plaintiffs’ motion. (Minute Entry 12/14/2022.) In light of the

changes to certain policies and practices that UNCHCS reported it

made in its filing the day before the hearing, the court instructed

the parties to meet and confer and file a joint status report

outlining their respective positions as to whether they contended

that a permanent injunction was still warranted, and if so, then

on what grounds. (Id.)

On January 30, 2023, the parties reported they were unable to

come to any agreement and set out their respective positions in

light of the then-current record. (Doc. 163.) After reviewing

the parties’ submissions, the court scheduled another hearing for

May 1, 2023, and raised several concerns it directed the parties

to be prepared to address in order for the court to better

understand the parties’ respective positions on injunctive relief.

(Doc. 165.) The court held a hearing on May 1, 2023, but because

the parties could not agree on the propriety of the court hearing

evidence or testimony from their proposed experts, the court only

heard argument, and the parties submitted the case on the written

record, which all parties agreed was sufficient for the court to

enter a final judgment. (Minute Entry 05/01/2023.)

On June 22, 2023, the court issued its memorandum opinion and

order, granting Plaintiffs’ motion for permanent injunction in

part, and denying it in part. (Doc. 167.) The court entered a

final judgment imposing a three-year permanent injunction against

UNCHCS as follows:

Defendant UNCHCS, its officers, agents, servants, and

employees, and other persons acting on behalf of or in

concert with it who receive actual notice of this

Permanent Injunction by personal service or otherwise,

shall:

Provide Plaintiff Timothy Miles, upon his request, with

equally effective access to all material information

UNCHCS provides its patients, which shall include, upon

his request, large print documents in an accessible

format; provided, however, that where such documents are

not available at the time of the clinical encounter and

upon Miles’s request, UNCHCS shall provide an

alternative method of communication, such as by reading

the communication to Miles in a private location that

best maintains Miles’s privacy and independence until

UNCHCS can provide, as soon as practicable, large print

copies.

Provide DRNC constituent Dr. Ricky Scott, upon his

request, equally effective access to all material

information that UNCHCS provides its patients, which

shall include, upon his request, accessible electronic

documents configured for use by screen reading devices

such as JAWS to the extent UNCHCS has control over such

documents for manipulation for use by screen readers,

or, upon Dr. Scott’s request, in Braille; provided,

however, that where such documents are not available at

the time of the clinical encounter and upon Dr. Scott’s

request, UNCHCS shall provide an alternative method of

communication, such as by reading the communication to

Dr. Scott in a private location that best maintains Dr.

Scott’s privacy and independence until UNCHCS can

provide, as soon as practicable, electronic or Braille

copies.

(Doc. 168 at 2.) The court otherwise denied Plaintiffs’ requests

for injunctive relief either because it was overbroad or had

already been implemented by UNCHCS.

Plaintiffs now seek a total award of $2,144,284.11 as a

prevailing party under the ADA, Section 504, and the ACA. (See

Doc. 178-1 at 8.) This is composed of an award of $1,211,841.50

for 2,318.9 hours by attorneys and paralegals of the law firm of

Brown, Goldstein & Levy, LLP, (“BGL”), $818,368 for 2,766.7 hours

for DRNC attorneys and paralegals, and $114,074.61 in total

expenses. (Id.) UNCHCS seeks an award of $2,396.22 in costs

pursuant to Plaintiffs’ rejection of its offer of judgment pursuant

to Rule 68 of the Federal Rules of Civil Procedure. (Doc. 171.)

Each motion will be addressed in turn.

II. ANALYSIS

A. Plaintiffs’ Motion for Attorneys’ Fees and Costs

All three relevant federal laws in this action under which some

form of relief was awarded - the ADA, Section 504, and Section

1557 - allow a “prevailing party” to recover reasonable attorneys’

fees and expenses. 42 U.S.C. 12205 (ADA) (allowing reasonable

attorney’s fee, including litigation expenses, and costs); 29

U.S.C. 794a(b) (Section 504) (allowing reasonable attorney’s fee

as part of costs); 42 U.S.C. 18116(a) (Section 1557) (making relief

coextensive with 29 U.S.C. § 794). “[A] plaintiff ‘prevails’ when

actual relief on the merits of his claim materially alters the

legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the

plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). Put

another way, litigants are “a prevailing party for purposes of an

attorneys’ fees award if they succeed on any significant issue in

litigation which achieves some of the benefit the parties sought

in bringing suit.” Cone v. Randolph Cnty. Sch. Bd. of Educ., 657

F. Supp. 2d 667, 682 (M.D.N.C. 2009) (internal citation and

quotations omitted). That standard is satisfied by a “judgment

for damages in any amount, whether compensatory or

nominal.” Farrar, 506 U.S. at 113. It is also satisfied by an

injunction in favor of the party seeking fees. Cf. Mercer v. Duke

Univ., 401 F.3d 199, 203 (4th Cir. 2005) (discussing the role of

injunctive relief in the scope inquiry of a fees award and assuming

its applicability in the prevailing party inquiry). The fee-

shifting provisions of civil rights statutes encourage competent

counsel to take on cases that will vindicate civil rights and

discourage future violations. See Hensley v. Eckerhart, 461 U.S.

424, 429 (1983); City of Riverside v. Rivera, 477 U.S. 561, 574-

75 (1986).

In considering an award to a prevailing party, the court

engages in a three-step process. See Mercer, 401 F.3d at 203.

First, it calculates the “lodestar” rate, which is simply the

number of hours reasonably worked multiplied by a reasonable rate.

Hensley, 461 U.S. at 433. The lodestar provides “an objective

basis on which to make an initial estimate of the value of a

lawyer’s services.” Id. To determine what is reasonable in terms

of hours expended and rate charged, the court applies the twelve

factors set forth in Johnson v. Georgia Highway Express Inc., 488

F.2d 714, 717-19 (5th Cir. 1974). McAfee v. Boczar, 738 F.3d 81,

88 (4th Cir. 2013). The Fourth Circuit has articulated these

factors as follows:

(1) the time and labor required in the case, (2) the

novelty and difficulty of the questions presented, (3)

the skill required to perform the necessary legal

services, (4) the preclusion of other employment by the

lawyer due to acceptance of the case, (5) the customary

fee for similar work, (6) the contingency of a fee, (7)

the time pressures imposed in the case, (8) the award

involved and the results obtained, (9) the experience,

reputation, and ability of the lawyer, (10) the

undesirability of the case, (11) the nature and length

of the professional relationship between the lawyer and

the client, and (12) the fee awards made in similar

cases.

In re Abrams & Abrams, P.A., 605 F.3d 238, 244 (4th Cir. 2010).

Second, the court subtracts any fees incurred on unsuccessful

claims that are unrelated to successful ones. Robinson v. Equifax

Info. Servs., LLC, 560 F.3d 235, 244 (4th Cir. 2009). Third, it

considers adjusting the lodestar rate upward or downward based on

the measure of success achieved by the Plaintiffs. Hensley, 461

U.S. at 434. While the court has discretion in calculating an

award, “a prevailing plaintiff should ordinarily recover an

attorney’s fee unless special circumstances would render such an

award unjust.” Id. at 429 (internal citation and quotations

omitted). In that sense, therefore, the court’s discretion is

“narrow.” N.Y. Gaslight Club v. Carey, 447 U.S. 54, 68 (1980).

This narrowing serves the important public policy of “facilitating

access to judicial process for the redress of civil rights

grievances.” Brandon v. Guilford Cnty. Bd. of Elections, 921 F.3d

194, 198 (4th Cir. 2019).

With this framework in mind, the court turns to each step in

the analysis.

1. Prevailing Party

UNCHCS concedes that Plaintiffs are prevailing parties.

(Doc. 177 at 2.) It argues, however, that Plaintiffs are only

“technical[ly]” so, are only “‘eligible for, rather than entitled

to,’ attorneys’ fees, expenses and costs,” and therefore should

not be “entitl[ed] to an unreasonable award. (Id. at 2, 5.)

UNCHCS also argues that the case involves “little or no damages,”

requiring the court to determine whether Plaintiffs’ victory is

sufficiently material to warrant an award and, if so, what is

reasonable under the circumstances. (Id. at 5-6.)

Plaintiffs Miles, NFB, and DRNC are indeed prevailing

parties. Each benefitted from the equitable relief obtained as a

result of the court’s entry of a permanent injunction against

UNCHCS. Plaintiff Miles and Plaintiff DRNC, on behalf of Dr.

Scott, its constituent, secured the entry of a three-year permanent

injunction as to both individuals regarding UNCHCS’s provision of

compliant disability services. This plainly constitutes a

judicially sanctioned judgment in Plaintiffs’ favor. Mercer, 401

F.3d at 203.

The parties have also represented their agreement that the

settlements Plaintiffs Bone and Miles obtained with UNCHCS entitle

them to prevailing party status. They have not briefed this point,

however, and because this relief resulted from a settlement, the

court must examine the authority for this position on these facts

before awarding statutory attorneys’ fees and expenses, as the

parties cannot confer statutory authority for a fee award by mere

agreement.

Bone and Miles reached their settlements during a court-

ordered mediation conducted by the magistrate judge as part of the

court’s pretrial procedures. (Minute Entry 2/8/22.) UNCHCS agreed

to pay both Bone and Miles damages to settle their individual

claims, and the parties agreed that each would be “entitled to

reasonable attorneys’ fees and costs, as determined under the ADA.”

(Doc. 139-1 at 3.) The parties agreed at that time that the court

retained jurisdiction for the purpose of enforcing the terms of

the settlement agreement for Bone through December 31, 2022. (Id.

at 5.) Thereafter, however, the parties disagreed on certain terms

of the final documentation, and the magistrate judge entered an

order setting a deadline for any motion to enforce settlement.

(Minute Entry 3/15/22.) Plaintiffs Bone and Miles moved to enforce

the court-mediated settlement and filed a supporting brief (Docs.

139, 140), UNCHCS filed a response in opposition (Doc. 141), and

Plaintiffs filed a reply (Doc. 142). The magistrate judge entered

a Recommendation that the court enforce the mediated agreement as

urged by Plaintiffs. (Doc. 143.) This court adopted the

Recommendation with an order that concluded that “UNCHCS shall

perform its obligations under the February Settlement Agreement.”

(Doc. 145.)

The filed settlement agreements reveal that UNCHCS agreed to

pay Miles $95,000.00 and Bone $30,000.00 to settle their damages

claims. (Docs. 174-11 at 2, 174-12 at 2.) In the settlement

agreements, UNCHCS acknowledged Plaintiffs’ prevailing party

status with the following provision: “UNCHCS agrees that

Plaintiffs to the Civil Action are entitled to reasonable

attorneys’ fees and costs, as determined under the ADA, for all

claims resolved through settlement between UNCHCS and Plaintiffs.”

(Docs. 174—11 at 5 (emphasis added), 174-12 at 5 (emphasis added).)

The settlement agreements also provided that in the event of any

action to enforce the agreements, the parties agreed to submit to

the jurisdiction of the Orange County, North Carolina Superior

Court for Miles and the Edgecombe County, North Carolina Superior

Court for Bone, reserving the parties’ right to remove an action

to this federal district court. (Doc. 174-11 at 7-8; Doc. 174-12

at 6.) Thereafter, the parties filed a stipulation of dismissal

of all claims for damages by Bone and Miles, specifically

acknowledging the following:

The Parties have agreed in their Settlement Agreement

and Release that all Plaintiffs in the above-captioned

action are entitled to reasonable attorneys’ fees and

costs, as determined under the ADA, for all claims

resolved through settlement between the Parties, and

that University of North Carolina Health Care System

retains the right to make any challenges to Plaintiffs’

recovery of reasonable attorneys’ fees and costs aside

from a challenge to Plaintiffs’ entitlement as defined

under the ADA.

(Doc. 147 at 1.)

Finally, in its briefing on these motions, UNCHCS presently

acknowledges that Bone and Miles are prevailing parties based on

their monetary payments. (Doc. 177 at 2 n.1.)

The Supreme Court’s last pronouncement on the standard for

determining prevailing party status where a settlement is

mentioned was Buckhannon Board & Care Home, Inc. v. West Virginia

Department of Health & Human Resources, 532 U.S. 598 (2001).

There, the Court rejected the “catalyst” theory whereby a plaintiff

could recover fees so long as he had succeeded on a significant

issue in the litigation that achieved some of the benefit sought

in the action, even though it was not as a result of any formal

court order.6 The Court concluded that a “defendant’s voluntary

change in conduct, although perhaps accomplishing what the

plaintiff sought to achieve by the lawsuit, lacks the necessary

judicial imprimatur on the change.” Id. at 605 (emphasis in

original). To allow an award of fees in that circumstance would

impermissibly “allow[] an award where there is no judicially

sanctioned change in the legal relationship of the parties.” Id.

at 605. Rather, the Court stated, a plaintiff could be a

“prevailing party” only if he was “awarded some relief” by the

6 The Fourth Circuit had previously rejected the catalyst theory. See

S-1 By and Through P-1 and P-2 v. State Bd of Educ. of N.C., 21 F.3d 49,

51 (4th Cir. 1994) (en banc).

court and achieved an “alteration in the legal relationship of the

parties.” Id. at 603-05. The Court observed that “some relief”

included nominal damages and could be contained in a judgment on

the merits or a signed settlement agreement “enforced through a

consent decree.” Id. at 603-04 (citing Maher v. Gagne, 448 U.S.

122 (1980)). Moreover, the Court in a footnote gave the following

admonition:

We have subsequently characterized the Maher opinion as

also allowing for an award of attorney’s fees for private

settlements. See Farrar v. Hobby, supra, at 111, 113 S.

Ct 566; Hewitt v. Helms, supra, at 760, 107 S. Ct. 2672.

But this dictum ignores that Maher only “held that fees

may be assessed . . . after a case has been settled by

the entry of a consent decree.” Evans v. Jeff D., 475

U.S. 717, 720, 106 S. Ct. 1531, 89 L.Ed.2d 747 (1986).

Private settlements do not entail the judicial approval

and oversight involved in consent decrees. And federal

jurisdiction to enforce a private contractual settlement

will often be lacking unless the terms of the agreement

are incorporated into the order of dismissal.

532 U.S. at 604 n.7.

Some courts have concluded that Buckhannon did not intend to

restrict the analysis to a consent decree. In American Disability

Association, Inc. v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir.

2002), for example, the Eleventh Circuit focused on the Court’s

requirement that there be some “judicially sanctioned change in

the legal relationship of the parties,” Buckhannon, 532 U.S. at

605, and concluded that “even absent the entry of a formal consent

decree, if the district court either incorporates the terms of a

settlement into its final order of dismissal or expressly retains

jurisdiction to enforce a settlement, it may thereafter enforce

the terms of the parties’ agreement.” Am. Disability Ass’n, Inc.,

289 F.3d at 1320. Because the parties’ settlement agreement

provided substantive injunctive relief sought in the lawsuit and

the court expressly retained jurisdiction to enforce the

injunctive terms, the Eleventh Circuit held that the plaintiff was

a prevailing party. Id. at 1321.

In National Coalition for Students with Disabilities v. Bush,

173 F. Supp. 2d 1272, 1278 (N.D. Fla. 2001), the parties entered

into a settlement after the defendants filed motions for summary

judgment and sought court approval. Eventually, the court entered

a judgment that dismissed all claims, directed the parties to abide

by their settlement agreement, reserved jurisdiction to enforce

the order, and required the parties “to abide by their settlement

agreement.” Id. at 1275. The court held that “the judgment

requiring the parties to abide by and retaining jurisdiction to

enforce the Settlement Agreement” was, “as a practical matter,”

legally indistinguishable from a consent decree. Id. at 1276-78.

The order, the court concluded, was sufficient to constitute a

“change in the [parties’] legal relationship” within the meaning

of Buckhannon. Id. at 1279.

A similar result was reached in Barrios v. California

Interscholastic Federation, 277 F.3d 1128, 1134 & n.5 (9th Cir.

2002). In that ADA case, the court noted the Ninth Circuit’s rule

that “a plaintiff ‘prevails’ when he or she enters into a legally

enforceable settlement agreement against the defendant.” Id. at

1134 (citing Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th

Cir. 2000), which in turn quoted Farrar, 506 U.S. at 111-12).

Because the parties had settled their claims, the court concluded

that the plaintiff was a prevailing party.

Other courts are more demanding, however. In New York State

Federation of Taxi Drivers, Inc. v. Westchester County Taxi &

Limousine Commission, 272 F.3d 154, 158-59 (2d Cir. 2002), for

example, the court determined that the plaintiff was not prevailing

because it resolved its claim with the defendant without any court

involvement. The court noted that Buckhannon rejected the catalyst

theory and interpreted the rule to require a “judicially sanctioned

change in the legal relationship of the parties.” Id. at 159.

See also Hutchinson v. Patrick, 636 F.3d 1, 9–11 (1st Cir.

2011) (holding district court’s order approving settlement

agreement pursuant to Federal Rule of Civil Procedure 23(e)

functionally equivalent to a consent decree because it altered the

parties’ legal relationship, reflected a “sufficient appraisal of

the merits of the purposes of the imprimatur requirement,” and

indicated that the district court “expressly retained jurisdiction

over the case”); id. at 11 n. 3 (“[T]he mere fact that a settlement

is subject to court approval does not in itself supply the

necessary ingredients for prevailing party status. It is the

presence of continuing judicial oversight that pushes the ball

across the goal line and thus suffices to give a settlement the

required judicial imprimatur.”); Bell v. Bd. of Cnty. Comm’rs, 451

F.3d 1097, 1103 (10th Cir. 2006) (“[I]f a court does not

incorporate a private settlement into an order, does not sign or

otherwise provide written approval of the settlement’s terms, and

does not retain jurisdiction to enforce performance of the

obligations assumed by the settling parties, the settlement ‘does

not bear any of the marks of a consent decree’ and does not confer

prevailing party status on the party whose claims have been

compromised.” (quoting T.D. v. LaGrange Sch. Dist. No. 102, 349

F.3d 469, 479 (7th Cir. 2003))); T.D., 349 F.3d at 478–79 (agreeing

that “some settlement agreements, even though not explicitly

labeled as a ‘consent decree[,]’ may confer ‘prevailing party’

status[ ] if they are sufficiently analogous to a consent decree,”

but holding that the settlement agreement at issue was not

sufficiently analogous because it was not “embodied in a court

order or judgment,” it did not bear “the district court judge's

signature,” and the district court did not retain jurisdiction to

enforce it); Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 165

(3d Cir. 2002) (holding that court order that (1) “contains

mandatory language,” (2) “is entitled ‘Order,’ ” (3) “bears the

signature of the District Court judge,” and (4) gives the plaintiff

“the right to request judicial enforcement of the settlement

against” the defendant rendered the plaintiff a prevailing

party); Smyth v. Rivero, 282 F.3d 268, 285 (4th Cir. 2002) (“[T]he

judicial approval and oversight identified by the Supreme Court as

involved in consent decrees are lacking where, as here, a

settlement agreement . . . is neither incorporated explicitly in

the terms of the district court’s dismissal order nor the subject

of a provision retaining jurisdiction.”); Christina A. v.

Bloomberg, 315 F.3d 990, 993–94 (8th Cir. 2003) (interpreting

Buckhannon as requiring “either an enforceable judgment on the

merits or a consent decree”; holding that the approval of a class

action settlement agreement pursuant to Rule 23(e) “fails to

impose the necessary ‘imprimatur’ on the agreement,” that “the

district court's approval of the settlement agreement [did] not,

by itself, create a consent decree,” and that the district court's

express retention of jurisdiction to enforce the settlement

agreement “alone is not enough to establish a judicial ‘imprimatur’

on the settlement contract”).

Finally, some courts do not require a consent decree to confer

prevailing party status if there has been some equivalent judicial

action. In Sabo v. United States, 127 Fed. Cl. 606 (2016), the

court defined a consent decree as an agreement of the parties that

is contractual in nature but one that “the parties desire and

expect will be reflected in, and be enforceable as, a judicial

decree that is subject to the rules generally applicable to other

judgments and decrees.” Id. at 623. It noted that such an

equivalent exists where the lawsuit “results in a court order in

which the court expressly approves the parties’ settlement

agreement and retains jurisdiction to ensure the settlement’s

implementation.” Id. at 625. See also Hutchinson, 636 F.3d at 9–

11 (finding a judicial imprimatur exists where the court retains

jurisdiction to enforce a settlement and exercised continuing

judicial oversight); Davy v. CIA, 456 F.3d 162, 166 (D.C. Cir.

2006) (finding court order “functionally a settlement agreement

enforced through a consent decree” because it contained mandatory

language, was entitled “ORDER,” and bore “the district judge's

signature, not those of the parties’ counsel”).

In the Fourth Circuit, there appears to be no decision

directly on point. In S-1 By and Through P-1 and P-2 v. State

Board of Education of N.C., the full court, in rejecting the

catalyst theory, held that a person may not become a prevailing

party under 42 U.S.C. § 1988 “except by virtue of having obtained

an enforceable judgment, consent decree, or settlement giving some

of the legal relief sought.” 21 F.3d at 51 (emphasis added). The

court adopted Judge Wilkinson’s dissent to the previous panel

opinion in which he stated that a “plaintiff securing such a

settlement can certainly be deemed to have prevailed in the absence

of a formal judgment” because “Farrar merely clarified Hewitt by

stressing that a voluntary change in conduct must be formalized in

a legally enforceable settlement agreement to transform a

plaintiff into a prevailing party.” S-1 By and Through P-1 and P-

2 v. State Bd. of Educ. of N.C., 6 F.3d 160, 171 (4th Cir. 1993)

(Wilkinson, J., dissenting). The court has since extended

prevailing party status to one who has obtained a preliminary

injunction, even though the relief could be ephemeral, if the case

is mooted by compliance as a result. Stinnie v. Holcomb, 77 F.4th

200, 215-16 (4th Cir. 2023) (en banc). In such a case, the

plaintiff has been provided “concrete and irreversible relief on

the merits” which was “as the result of a judicially ordered change

in the parties’ relationship.” Id. at 214.

Here, the question is a close one. Under the unique

circumstances of this case, the court accepts that Plaintiffs Bone

and Miles are prevailing parties as to their damages settlements.7

First, their settlement was reached during the parties’

participation in a court-ordered mediation conducted by the

magistrate judge. Second, their settlement agreement reflects an

irreversible alteration in the parties’ relationship, as both

Plaintiffs obtained relief on the merits - the right, by contract,

to damages that they sought in the lawsuit. Third, because the

parties disagreed on whether they had reached a complete agreement,

7 Parties seeking to preserve a plaintiff’s prevailing party status are

nevertheless best advised to seek the court’s entry of a consent judgment

that retains jurisdiction over enforcement.

they submitted their disagreement to the court which, exercising

its inherent supervisory authority and implementing that portion

of the parties’ agreement that the court retain jurisdiction for

the purpose of enforcing the terms of their settlement agreement

as to Bone (Doc. 139-1 at 5), entered an order requiring that they

abide by the terms of their agreement. (Doc. 143.) The Fourth

Circuit has described this exercise of a district court’s power to

enforce a settlement agreement as one that “has the ‘practical

effect’ of entering a judgment by consent.” Hensley, 277 F.3d at

540 (quoting Millner v. Norfolk & W.R. Co., 643 F.2d 1005, 1009

(4th Cir. 1981)). The order thus bears a significant imprimatur

of the court. Fourth, the parties’ settlement agreement came on

the heels of the magistrate judge’s Recommendation on Plaintiffs’

motion for summary judgment finding that UNCHCS had violated these

two Plaintiffs’ statutory rights. (Doc. 125.) And fifth, this is

not a case where a defendant may be caught unaware it is subject

to liability for attorneys’ fees and expenses, as UNCHCS stipulated

to these Plaintiffs’ entitlement in the settlement agreements and

represented the same to the court in the stipulation dismissing

these Plaintiffs’ damages claims.

Though all Plaintiffs therefore qualify as prevailing

parties, the full nature of the relief, which matters for the scope

of the fees and expenses to which Plaintiffs are entitled as

prevailing parties, is more complicated. The court’s final

injunction was limited in scope, applying only to Miles and Dr.

Scott, a non-party. The court refrained from ordering certain

requested equitable relief, but for separate reasons. Some of the

relief, especially as to so-called “best practices” for sight-

impaired individuals, exceeded the requirements of the applicable

laws under which the claims were brought, and Plaintiffs’ requests

in that regard were clearly overbroad. Other relief, such as

upgrades to UNCHCS’s intake system for sight-impaired patients,

was not included as part of the injunction only because UNCHCS had

implemented it during the course of the litigation – though UNCHCS

offered, and Plaintiffs rejected, it as part of the proposed Rule

68 offer of judgment, resulting in additional litigation costs.

But while none of the relief was novel or ground-breaking, it

ultimately inured to the benefit of all sight-impaired patients of

the UNCHCS system, which serves an important public purpose.

Mercer, 401 F.3d at 207. Thus, all Plaintiffs clearly obtained

some important measure of equitable relief, not only for the

individual Plaintiffs, but also for all sight-impaired patients of

the UNCHCS system, the scope of which will be addressed further

below.

2. Calculating the Lodestar Fee Award

Plaintiffs have submitted the time entries for the lawyers in

Plaintiff DRNC, a non-profit advocacy group, and the BGL law firm

located in Baltimore, Maryland. UNCHCS challenges the fees on

multiple grounds, including the claimed unreasonableness of the

hourly rates and what it argues are excessive, redundant, and

unnecessary hours resulting from overstaffing, block billing, and

excessive/duplicative/unnecessary work. (Doc. 177 at 17-20.)

Plaintiffs support their application with detailed time entries

and affidavits of counsel. Plaintiffs contend they have excluded

from their fee request all hours that are excessive, redundant, or

otherwise unnecessary. (Doc. 174 at 7.) They also excluded all

fees related to claims against Defendant Nash Hospitals, Inc.,

with whom Plaintiffs settled their claims, and as related to

Plaintiffs’ unsuccessful objection to the magistrate judge’s

ruling on Defendants’ motion to dismiss. (Id.) Plaintiffs report

they have further discounted their time by excluding fees for any

timekeeper who worked 10 hours or less. (Id.) In total, this

reportedly results in a reduction of 326 hours at a value of

$170,189.00 at BGL’s current rates. (Id.) DRNC also reports it

reduced its fees by 716.7 hours, for a value of $218,935.00 at its

current rates. (Id. at 7-8.) Thus, the total reduction is claimed

to be $389,124.00.

a. Time and labor required in the case

Plaintiffs are claiming a total of 5,085.6 hours in time and

labor in this case, with 2,318.9 hours expended by attorneys and

paralegals of the BGL law firm and 2,766.7 hours expended by DRNC

attorneys and paralegals for both the merits case and the

preparation of the present motion for fees and expenses. As to

the merits case, the following hours are claimed:8

BGL Law Firm

TIMEKEEPER HOURS

Eve Hill 29.3

Jessica Weber 620.9

Chelsea Crawford 58.2

James Strawbridge 1,173.7

Angela Lima 177.6

Samantha Duckworth 68.5

Shana Fischer 15.6

DRNC

TIMEKEEPER HOURS

Holy Stiles 953.5

Christopher Hodgson 1,474.1

Lisa Grafstein 28.4

Nicholas Lett 255.8

(Doc. 174-2 at 11; Doc. 174-8 at 11). As to the preparation of

the present motion for fees and expenses, the following hours are

claimed:

BGL Law Firm

TIMEKEEPER HOURS

Jessica Weber 54.7

James Strawbridge 112.8

Angela Lima 21.7

(Doc. 178-1 at 5.)

Plaintiffs argue that a substantial portion of their

counsels’ time related to responding to the multiple legal

challenges UNCHCS mounted, which Plaintiffs argue were “overly

8 All hours are rounded to the nearest tenth of the hour (every six

minutes).

aggressive litigation tactics” that drove up the fees. (Doc. 178

at 8.) Plaintiffs also note that UNCHCS rejected their offer to

enter into a tolling agreement to allow time to try to negotiate

a resolution of their claims, which would have avoided litigation

altogether. (Doc. 174-2 at 14.) UNCHCS, by contrast,

characterizes Plaintiffs’ lawsuit as an attempt to effect “top-

down,” system-wide relief well beyond what the law required or

what could feasibly be accomplished, and contend that Plaintiffs

rejected its repeated attempts to compromise and “find cooperative

solutions.” (Doc. 177 at 3-5.) There is some truth in each

contention.

Plaintiffs are correct that they had to respond to UNCHCS’s

motion to dismiss, UNCHCS’s motion for judgment on the pleadings

(which the magistrate judge characterized as “largely

repackage[d]” versions of UNCHCS’s arguments he rejected on motion

to dismiss (Doc. 98 at 20)), UNCHCS’s unsuccessful motion to stay

discovery (Doc. 70), and four summary judgment motions and

accompanying briefs filed against each Plaintiff separately.

(Docs. 107, 108, 109, 110, 111, 112, 113, 114.) Plaintiffs

required an expanded word limit to respond. (Doc. 118.) Plaintiff

also moved for partial summary judgment on liability. (Doc. 105.)

After the magistrate judge concluded that UNCHCS had violated the

ADA, Section 504, and Section 1556 with respect to Miles and Bone,

UNCHCS filed objections to the Recommendation (Docs. 129, 130), to

which Plaintiffs had to respond (Doc. 136).

Thereafter, the parties prepared for a March 7, 2022 trial,

filing the requisite pretrial disclosures, motions in limine, and

proposed jury instructions and trial brief. (Docs. 134, 135.)

Fourteen depositions were taken, and Plaintiffs retained two

expert witnesses, Megan Morris and Dennis Quon. (Doc. 174 at 6,

22-23.)

At the February 8, 2022 settlement conference, UNCHCS

stipulated that it had violated the ADA as to Miles and Dr. Scott,

agreed to pay Plaintiffs damages, and agreed that Plaintiffs were

prevailing parties. (Doc. 139-1.) Though the parties signed a

term sheet, UNCHCS attempted to add other terms to the deal, and

Plaintiffs were forced to move to enforce the settlement agreement

at the direction of the magistrate judge. (Doc. 139, 140.) The

court granted the motion, and the parties executed their settlement

agreement. (Docs. 174-11, 174-12.) The settlement agreement left

open the issue of equitable relief.

On August 3, 2022, UNCHCS served its offer of judgment (Doc.

177-3), which Plaintiffs rejected.

Following that, the parties briefed Plaintiffs’ request for

a permanent injunction (Docs. 151, 152, 153), and the court

scheduled a hearing (Doc. 154). Plaintiffs prepared their

witnesses for possible testimony at the hearing in response to

this court’s order that the parties be prepared to demonstrate

“how and why Plaintiffs contend [UNCHCS’s new] remedies are

inadequate.” (Doc. 156 at 1.) One month before the hearing,

however, UNCHCS moved to preclude Plaintiffs’ experts (whose

declarations were long part of the summary judgment record) under

Federal Rule of Evidence 702. (Docs. 157-59.) The court denied

the motion, finding that the time for such a motion “ha[d] long

passed.” (Doc. 161 at 2.)

On December 13, 2022, UNCHCS filed evidence of new measures

it claimed to have implemented and others which it planned to

implement in a further effort to meet and thus moot the challenges

Plaintiffs brought in their motion for permanent injunction. (Doc.

162.) After the hearing the next day, the court directed the

parties to meet and confer to determine whether in fact UNCHCS’s

recently disclosed efforts negated or mitigated Plaintiffs’

concerns and to report to the court by January 30, 2023. (Minute

Entry 12/14/22.) Plaintiffs contend they tried to meet but that

UNCHCS rebuffed their attempt to include Plaintiffs’ retained

experts in any discussion, so any effort to resolve their

differences fell apart. (Doc. 163.) Each side set out its version

of where things stood at that point. (Id.)

In light of the parties’ conflicting claims as to compliance

with the relevant civil rights laws, the court scheduled another

hearing for May 1, 2023, to attempt to resolve them. (Doc. 164.)

The court posed specific questions to the parties so they could be

prepared to address them at the hearing. (Doc. 165.) The court

also directed them to have their “technical people” available to

answer any technical questions the court may have as to operation

of the relevant Epic electronic medical records system. (Id. at

1.) Plaintiffs brought their experts to the hearing; UNCHCS had

no retained expert but also did not bring its technical personnel.

On June 23, 2023, the court issued a 109-page memorandum

opinion and order, granting Plaintiffs’ motion for permanent

injunction in part and denying it in part. (Doc. 167.) The court

found that Miles and Dr. Scott would suffer irreparable harm absent

an injunction. (Id. at 63.) The court also found that Plaintiffs

sought “‘top-down’ system-wide relief meant to ‘apply across the

UNCHCS Network.’” (Id. at 66.) Consequently, the injunction

Plaintiffs sought was “in myriad ways, plainly overbroad,” and

Plaintiffs sought to impose in some instances the types of “best

practices” that the law does not require. (Id.) The court,

therefore, decided to craft a more limited injunction properly

suited to the circumstances of the case, explaining:

Accordingly, the court will enter an injunction to order

UNCHCS to do what it has failed consistently to do so

far: provide Miles and Dr. Scott with equally effective

access to all material information that UNCHCS provides

its patients. For Miles, of course, that means providing

him with accessible large-print documents. For Dr.

Scott, that means providing electronic documents

configured for use by screen reading devices (such as

JAWS) to the extent UNCHCS has control over such

documents in Epic or, upon Dr. Scott's request, Braille

documents. However, as to both individuals, where such

documents are not immediately available at the time of

the clinical encounter, UNCHCS shall provide an

alternative method of communication that provides each

with equally effective access to his healthcare

information, such as by reading the documents. This

injunction – fully set forth in the separate Judgment

and Permanent Injunction - is narrowly tailored to

remedy the harm established in this case. It also best

comports with the proper scope of a federal district

court's remedial power.

(Id. at 67-68.) The court found the injuries alleged in the case

and demonstrated by the discovery were - and thus the remedies to

be imposed needed to be - individualized to Miles and Dr. Scott.

Indeed, although the association Plaintiffs sought relief for

its members, apart from Miles and Dr. Scott, Plaintiffs were unable

to provide any record support for the contention that any other

members and the potentially scores of blind patients of UNCHCS

suffered any similar harms – a fact established by the association

Plaintiffs’ Rule 30(b)(6) depositions as early as February 16-17,

2021. (Doc. 108-16; Doc. 114-18; Doc. 171-2 at 3-4.) Although

Plaintiffs speculated that UNCHCS served more than 7,000 blind

patients, throughout the litigation UNCHCS had identified only 175

patients as sight-impaired and recorded only three requests for

large print documents and none for Braille documents. (Doc. 151-

1 at 19.) Thus, the court declined major areas of Plaintiffs’

requested relief, such as the following: a generalized mandate

ordering UNCHCS to comply with federal disability laws; “necessary

and timely steps to ensure that [UNCHCS] furnishes appropriate

auxiliary aids and services where necessary”; within six months,

broad accessible format relief to “[e]nsure that [UNCHCS] records

and complies with all requests by blind individual for print

communications,” “[e]nsure that the accessible formats [UNCHCS]

provides conform to established, recognized guidelines for

accessible document design,” and “[i]ssue or revise existing

policies to the extent necessary to implement prompt production of

standard print communications in the alternative format

requested”; within 12 months, substantial revisions to UNCHCS’s

electronic health record system (such as displaying the requested

accessible format for each patient) and mandated training of all

UNCHCS employees; and a requirement that all such changes be made

network-wide for each provider within the UNCHCS system (whether

or not owned or managed by UNCHCS), as well as all contractors

providing documents on their behalf. (Id. at 86-88, 91-97.) The

court rejected any “best practices” remedies as long as UNCHCS

provided accessibility (id. at 84, 93) and declined to become

entangled in any ongoing judicial oversight of a massive health

care system as to which courts are ill-equipped to deal.

While the court declined this extensive relief, it did note

that UNCHCS, as a result of the litigation, had already implemented

substantial changes, including the following: agreeing to extend

payment deadlines for sight-impaired individuals; agreeing to post

conspicuous notices on the UNCHCS webpage for accessible formats;

establishing a process for the fielding of complaints;

establishing an ADA Workgroup consisting of a multidisciplinary

team to evaluate policies on an ongoing basis and ensure effective

communication; and, importantly, establishing a uniform and

automatic process within the UNCHCS computer system for the intake

of patient information at reception to ensure that the patient’s

file would be flagged for the particular needs of the sight-

impaired patient by all providers who had access to the health

record. (Id. at 98-102.) This is addressed in more detail below

in the section on evaluating the degree of success.

The number of hours expended in this case, then, is a function

of three major, but related, factors. The first was Plaintiffs’

use of outside counsel, which had the effect of duplicating effort

by DRNC counsel. Plaintiffs argue that was reasonable because the

case was “unusually complex – factually and legally” because they

challenged practices of a statewide network. (Doc. 174 at 16.)

Plaintiffs cite the lack of precedent regarding healthcare

providers’ obligations to ensure effective communications for the

blind and point to their outside counsels’ “long history of

representing NFB and blind individuals in discrimination cases.”

(Id. at 17.) The second major factor is the alleged complexity of

the case in general, which affects the legal staffing by Plaintiff

DRNC and by their outside counsel. And the third factor was

Plaintiffs’ decision to pursue their full claims for relief even

though UNCHCS offered to implement extensive injunctive relief.9

Applicants bear the burden of documenting the appropriate

hours expended. Hensley, 461 U.S. at 437. Courts are placed in

a difficult position when asked to determine whether attorney hours

were necessary to the relief obtained, and while a close and

careful review of the reasonableness is appropriate, “ex post facto

determination[s]” are improper. Stuart v. Walker-McGill, No.

1:11cv804, 2016 WL 320154, at *7 (M.D.N.C. Jan. 25, 2016).

As for Plaintiffs’ decision to associate the BGL firm, the

court finds it was reasonable under the circumstances. The

association Plaintiffs lacked the resources, expertise, and

bandwidth to effectively litigate this case to the extent it sought

relief involving the whole UNCHCS healthcare network. (Doc. 174-

8 at ¶ 10.) The BGL firm has the expertise, depth, and history

with Plaintiff NFB to be an appropriate selection as co-counsel.

UNCHCS’s objections to this extent are therefore rejected

although, as noted below, the court considers how the overreach of

Plaintiffs’ claims and duplicate staffing impacts the actual need

for some of these services.

Although there was not a robust development of case law on

the issue of a defendant’s legal burden to provide effective

9 For the reasons noted below, the court does not reduce any attorneys’

fees or expenses based on Plaintiffs’ failure to accept UNCHCS’s August

2022 offer of judgment.

communications in this context of sight-impaired patients of a

healthcare system, the general law applicable, as it turns out,

was not that complex. (See Doc. 167 at 46-51.) What complicated

the case was Plaintiffs’ attempt to impose “best practices” onto

the UNCHCS system (and all of its contractors), which interfaces

with the Epic medical records system operated by a third party, as

well as the MyChart records system. In as much as Epic is used

nationally by many healthcare providers, this case had all the

hallmarks of a test case to set a national standard to impose such

“best practices” on that system. Indeed, Plaintiffs contended

that this “was a case of regional, if not national, importance.”

(Doc. 174 at 15.) However, as the court found, this failed on two

fronts. First, the law sets a minimum bar and does not require

“best practices.” Second, Plaintiffs were unable to establish the

need for robust injunctive relief on behalf of members of the

association Plaintiffs. This was known to Plaintiffs at least by

the February 16 and 17, 2021 depositions of Virginia Knowlton

Marcus, chief executive officer of Plaintiff DRNC, and Mark

Riccobono, president of Plaintiff NFB, taken pursuant to Federal

Rule of Civil Procedure 30(b)(6). (See Doc. 108-16; Doc. 114-18;

Doc. 171-2 at 3-4.) At no point did Plaintiffs identify a single

association member, other than Miles, Bone, and Dr. Scott, who

suffered similar alleged deprivations to justify a more robust

injunction. (Doc. 167 at 80-81.) From the court’s perspective,

this overreach stymied any real prospect of compromise.

Plaintiffs argue that even though the injunction was narrower

than what they requested, they would have had to expend the same

number of hours to prove entitlement to permanent relief. (Doc.

172-3 at 17-18.) The court is not convinced. The narrow nature

of the relief strongly suggests that it was Plaintiffs’ insistence

on “top-down” and extensive systemwide relief - especially the

imposition of “best practices” standards for blind patients that

included reconfiguring the medical records system (operated by a

third party) - which the court found exceeded the requirements of

the disability laws, that prevented the case from being resolved

earlier. As a result, the court cannot escape the conclusion that

a not insignificant portion of Plaintiffs’ work on the injunctive

relief phase of the case was motivated by a desire to obtain relief

that was not legally available and thus could have been avoided

had such overreach not been sought. The court will take this

factor into account, however, in assessing the degree of success

Plaintiffs achieved in Section 4 below.

UNCHCS does challenge specific portions of Plaintiffs’ fee

request as demonstrating overstaffing, block billing, and

excessive, duplicative, and unnecessary work such that the court

should make a reduction to the hours claimed. (Doc. 177 at 17-

18.) First, UNCHCS contends that Plaintiffs had four lawyers

involved in a deposition (Jeri Williams). (Doc. 174-3 at 44; Doc.

174-9 at 23.) However, to address this duplication, Plaintiffs

have already reduced all billing where more than two attorneys

attended a deposition, resulting in a reduction of 34.6 hours,

totaling $13,340.50 that Plaintiffs did not include in their fee

request.10 The court thus finds no need to reduce the time entries

further on this basis. (Doc. 178-4 at 2.)

That being said, Plaintiffs effectively had two law firms

pursuing the claims on their behalf: BGL and DRNC, who staffed a

combined total of eleven legal personnel for whom they seek

reimbursement. Ordinarily, such a case would be handled by one

law firm. While DRNC decided to use its own inside counsel for

portions of this matter and is entitled to be reimbursed for doing

so, the court in determining reasonableness nevertheless must

consider the extent to which having two teams of lawyers on the

case resulted in duplicative billing. Every time a new lawyer is

added to any team, there is a corresponding marginal increase in

duplicate time and effort. The record contains evidence that BGL

and DRNC engaged in some distribution of work (e.g., brief writing)

and some discounting of billable hours in an attempt to avoid

duplication. Nevertheless, overlap is apparent. Based on the

timesheets provided, a reasonable (but conservative) estimate of

the effect of having two law firms involved is a minimum 15 percent

10 Of this, $6,838.50 was discounted from BGL’s fees and $6,502.00 was

discounted from DRNC’s fees. (Doc. 178-4 at 2.)

increase in the billings. (See, e.g., Doc. 174-3 (billing for,

among other things, “Exchange emails with co-counsel,” “Review

email from [co-counsel],” “Save, label, log and e-mail documents

to co-counsel,” “Conference call with [co-counsel],” “Call with

co-counsel,” “Zoom conference with [co-counsel],” “Review draft

discovery plan from co-counsel,” “Edit discovery plan for 26(f)

conference written by co-counsel,” “Review motion to compel

drafted by co-counsel,” etc.); Doc. 174-9 (billing for, among other

things, “review [co-counsel] email re: . . .,” “respond to co-

counsel email,” “co-counsel meeting to discuss discovery next

steps,” “emails with co-counsel re: . . .,” “review [co-counsel]

edits and respond,” “debrief deposition with [co-counsel],”

etc.).) That Plaintiffs chose to staff the case with eleven

timekeepers should not require UNCHCS to pay for such duplication.

Thus, the court determines that a 15 percent reduction to the time

spent on the merits case11 is appropriate to better represent the

time reasonably expended on this case. Hensley, 461 U.S. at 436–

37 (holding the court is required only to make a reasonable

estimate based on the record). The court will thus reduce the

hours claimed on the merits case to the following:

11 The court discerns no unreasonableness as to the time expended on the

present motion for fees and expenses and therefore declines to reduce

those totals.

BGL Law Firm

TIMEKEEPER HOURS

Eve Hill 24.9

Jessica Weber 527.8

Chelsea Crawford 49.5

James Strawbridge 997.6

Angela Lima 151.0

Samantha Duckworth 58.2

Shana Fischer 13.3

DRNC

TIMEKEEPER HOURS

Holy Stiles 810.5

Christopher Hodgson 1,253.0

Lisa Grafstein 24.1

Nicholas Lett 217.4

Second, as to so-called “block billing,” the court does not

discern any abuse that warrants a reduction. The entries describe

largely legal research and brief writing, and counsel in its

records provided more descriptive breakdowns within individual

entries where appropriate.

Third, as to excessive or unnecessary work, UNCHCS cites

multiple entries related to outlining and drafting briefing

related to motion to dismiss arguments. Given the extensive

briefing required by this case, the court cannot determine any

abuse on this record and therefore declines to make any deductions

on this basis. (Doc. 177 at 18.)

As to travel charges, which all occurred during the merits

phase of the case, Plaintiffs contend that BGL’s practice is to

charge for travel time but that attorneys attempt to work “to the

extent possible” while doing so. Travel presents an opportunity

cost in not being able to work at one’s office. It is also

reasonable, however, to consider that such travel time is not the

same as legal work and that, as a practical matter, lawyers cannot

work at all times while en route. Though a client may agree to

pay full rates for travel, it is not reasonable to impose such a

generous fee structure on an opponent, even for a prevailing party,

where counsel is incurring travel cost because Plaintiffs sought

an out-of-state firm to represent them. Therefore, the court will

reduce all time billed by BGL timekeepers purely for travel12 by

50 percent. A review of the submitted time entries indicates the

following reductions: attorney Jessica Weber’s hours billed for

travel will be reduced from 20.9 hours to 10.6 hours, attorney

James Strawbridge’s hours billed for travel will be reduced from

24.3 hours to 12.2 hours, and paralegal Angel Lima’s hours billed

for travel will be reduced from 1 hour to 0.5 hours. With those

additional subtractions, the totals per timekeeper are:

BGL Law Firm

TIMEKEEPER HOURS

Eve Hill 24.9

Jessica Weber 517.5

Chelsea Crawford 49.5

James Strawbridge 985.6

Angela Lima 150.5

Samantha Duckworth 58.2

Shana Fischer 13.3

12 The court did not reduce travel where the time entries reflect

substantive work occurred. (See, e.g., Doc. 174-3 at 85; Doc. 174-9 at

70.)

DRNC’s hours are unaffected:

DRNC

TIMEKEEPER HOURS

Holy Stiles 810.5

Christopher Hodgson 1,253.0

Lisa Grafstein 24.1

Nicholas Lett 217.4

Finally, UNCHCS argues, albeit in a footnote, that “[a]ll of

the work Plaintiffs’ legal team performed . . . after UNCHCS

extended its August 3, 2022 Rule 68 Offer of Judgment” was

unnecessary because the relief UNCHCS proposed in the offer of

judgment exceeded the relief ordered by the court. (Doc. 177 at

18 n.7.) Plaintiffs concede that the offer of judgment would have

applied to patients other than Miles and Dr. Scott (who were the

only individuals to receive injunctive relief from the court), but

they argue that the offer was “extremely narrow” because it applied

only to “Covered Affiliates,” which excludes UNCHCS-owned or

UNCHCS-managed hospitals, whereas the court’s injunction applied

to all UNCHCS “officers, agents, servants, and employees, and other

persons acting on behalf of or in concert with it.” (Doc. 178 at

11-12.)

Federal Rule of Civil Procedure 68(d) provides that “[i]f the

judgment the offeree finally obtains is not more favorable than

the unaccepted offer, the offeree must pay the costs incurred after

the offer was made.” As recognized by the Supreme Court, Rule 68

acknowledges the longstanding historical designation of “costs”

such that “the term ‘costs’ in [that Rule] was intended to refer

to all costs properly awardable under the relevant substantive

statute or other authority.” Marek v. Chesny, 473 U.S. 1, 9

(1985). As such, “absent congressional expressions to the

contrary, where the underlying statute defines ‘costs’ to include

attorney’s fees,” courts have interpreted attorney’s fees to be

included as costs for purposes of Rule 68 and thus subject to that

Rule’s limitations, including the limitation pertaining to prior

offers of judgment. Id.

However, not every statute incorporates an award of

attorney’s fees into the scope of costs. See id. at 8. Where a

statute does not specifically invoke a right to attorney’s fees

“as part of costs,” any entitlement to attorney’s fees is not

limited in the same way as Rule 68 costs may be. See id. at 8-9;

Wyatt v. Ralphs Grocery Co., 65 F. App’x 589, 591 (9th Cir. 2003).

Compare, e.g., 42 U.S.C. § 1988(b) (authorizing “a reasonable

attorney’s fee as part of the costs”) with 42 U.S.C. § 12205

(authorizing “a reasonable attorney’s fee, including litigation

expenses, and costs”).

While Section 504 and Section 1557 of the ACA both define

costs to include an award of attorney’s fees, see 29 U.S.C.

§794a(b) (authorizing attorney’s fees “as part of costs”); 42

U.S.C. § 18116 (making relief coextensive with 29 U.S.C. § 794),

the ADA does not. Instead, it provides that “a reasonable

attorney’s fee, including litigation expenses, and costs” be

provided to a prevailing party. 42 U.S.C. § 12205. Neither party

has addressed this linguistic distinction, but federal courts have

been clear that the ADA right to attorney’s fees for a prevailing

party is not recoverable as a part of “costs” within the confines

of Rule 68. See, e.g., Wyatt, 65 F. App’x at 591 (holding that

“Rule 68’s cost-shifting device does not apply to fees under the

ADA,” as the statute “does not define costs to include fees”);

Webb v. James, 147 F.3d 617, 623 (7th Cir. 1998) (distinguishing

the language of the ADA from other statutes where “costs were

defined to include attorney's fees” as in Marek); Smith v. RW’s

Bierstube, Inc., No. 17-CV-1866 (PJS/HB), 2019 WL 6464142, at *3

(D. Minn. Dec. 2, 2019) (refusing to award fees under Rule 68 as

they were not “part of costs”). Because Plaintiffs’ application

for fees is cognizable under the ADA, it is not limited by the

prior Rule 68 offer of judgment. A deduction on this basis is

therefore not warranted.

b. Novelty and difficulty of the questions

presented

The more complex case will generally support a greater number

of hours. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169,

175 (4th Cir. 1994). For the reasons noted above, the novelty, if

any, of Plaintiffs’ claims was a function of their breadth, which

was not supported by the law and would have likely imposed immense

burdens on the UNCHCS healthcare system. It is true that the case

involved some complexity in understanding the Epic and MyChart

medical records and billing systems, but the extent of that

complexity related in material measure to Plaintiffs’ overbroad

proposed remedies. To the extent Plaintiffs also claim complexity

in understanding “the contractual relationships between UNCHCS

affiliates,” this again relates to Plaintiffs’ effort to impose

expansive system-wide remedies beyond the requirements of the law.

This factor does not favor Plaintiffs.

c. Skill required to perform the necessary

legal services

Plaintiffs’ claims involved several civil rights and health

laws. Plaintiffs characterize the legal issues as “cutting-edge”

with “little precedent” regarding a healthcare provider’s

obligation to ensure effective communication with the blind. (Doc.

174 at 16.) As noted, they portrayed the lawsuit as “a case of

regional, if not national, importance.” (Id. at 15.) UNCHCS

responds that the case established no novel or important precedent

and did not “break new ground in the body of law interpreting the

ADA, the Rehab Act or the Affordable Care Act.” (Doc. 177 at 8.)

As this court noted in its memorandum opinion and order

imposing a narrow permanent injunction, the rights of the sight-

impaired are indeed important, but Plaintiffs’ attempt to impose

extensive “best practices” under the current statutory structure

exceeded what the law reasonably required. As the court found,

the claims could easily be resolved within the confines of the

applicable law, which did not require such measures. This factor

does not favor Plaintiffs.

d. Preclusion of other employment by the

lawyer due to acceptance of the case

Plaintiffs do not argue that this factor is relevant in the

analysis, nor does the court so find.

e. Customary fee for similar work

Plaintiffs contend that the hourly rates of their lawyers are

reasonable. UNCHCS challenges the rates of the BGL firm as well

as those of the lawyers at DRNC as excessive and beyond what the

local market will bear. However, while Plaintiffs have filed

several declarations to support their attorney fee award, UNCHCS

has not filed any factual support in response.

The BGL firm handles disability rights cases nationally and

has obtained successful results. (Docs. 174-13, 174-15, 174-17.)

The firm is based in Baltimore, Maryland, and its rates for this

case, as well as the hours sought, are as follows: $485 an hour

for associate James Strawbridge, who Plaintiffs claim accounted

for 1,286.5 hours;13 $675 an hour for partner Jessica Weber, who

13 The hours for James Strawbridge, Jessica Weber, and Angel Lima include

additional time spent in preparation of Plaintiffs’ motion for attorneys’

Plaintiffs claim accounted for 675.6 hours; $625 an hour for

partner Chelsea Crawford, for whom Plaintiffs report 58.2 hours;

and $725 an hour for partner Eve Hill, for whom they report for

29.3 hours. (Doc. 174-2 at 11.) The firm charges $295 an hour

for paralegal Angela Lima, who billed 199.3 hours, and $265 an

hour for paralegals Samantha Duckworth and Shana Fischer, who

billed a total of 84.1 hours. (Id.) Plaintiffs offer support for

the conclusion that these rates are reasonable within the Baltimore

market and nationally. (Doc. 174 at 19-21.)

Plaintiff DRNC does not charge its clients for its services,

but as a public interest association, it is entitled to seek an

award for its attorneys and paralegals at the prevailing rates

within the North Carolina community. Blum v. Stenson, 465 U.S.

886, 894-95 (1984). DRNC seeks the following hourly rates and

accountable hours: $300 an hour for attorney Christopher Hodgson,

who graduated law school and joined DRNC in 2015 and reports

1,474.1 hours; $325 an hour for attorney Holly Stiles, a 2007 law

school graduate and former Equal Employment Opportunity Commission

trial attorney, who reports 953.5 hours; and $375 an hour for

attorney Lisa Grafstein, a 1995 law school graduate who reports

28.4 hours. (Doc. 174-19 at 8.) DRNC also charges $150 an hour

for its paralegal, who graduated from paralegal training in 2015

fees and expenses. (See Doc. 174-2 at 10 (initial hours spent); Doc.

178-2 at 5 (additional hours spent on the fees motion).)

and reports 255.8 hours. (Id.)

A reasonable rate is that which is “in line with those

prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience, and reputation.” Blum,

465 U.S. at 895 n.11. The community in which the court sits is

“the appropriate starting point for selecting the proper rate.”

Nat’l Wildlife Fed’n v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988).

However, where services of like quality are not available in the

local community, and where a party acts reasonably in choosing

counsel elsewhere, such external rates can be considered. Id. A

reasonable rate can be demonstrated by evidence of what clients

are normally willing to pay or by a showing of what comparable

lawyers of skill can command under similar circumstances. Rum

Creek, 31 F.3d at 175. Here, Plaintiffs have offered declarations

of multiple lawyers to support the reasonableness of the hourly

rates they seek.

The court, having reviewed the hourly rates proposed by DRNC,

easily finds that they are well within the prevailing rates in

this legal community. As DRNC points out, its rates are “at or

below the rates that comparable firms charge for attorneys of

comparable experience and for paralegals.” (Doc. 174-8 at 8.)

However, to the extent the rates charged by BGL are justified

by reference to the rates charged by firms in the Baltimore (see

Docs. 174-24, 174-26, 174-27) and other national markets

(including the Bay Area of California (see Docs. 174-13, 174-15)

and Chicago, Illinois (see Doc. 174-17)), they are not as well

supported, as is implicit in DRNC’s statement of its rates. UNCHCS

points to the current guidelines for the District of Maryland Local

Rules, which provide for the following hourly rates based on years

of practice: $150-225 (< 5 years); $165-300 (5-8 years); $225-350

(9-14 years); $275-425 (15-19 years); and $300-475 (20+ years).

Local Rules, https://www.mdd.uscourts.gov/local-rules (last

accessed Jan. 31, 2023.) These rates are not ceilings in the

Maryland federal courts, however, and BGL can obtain an hourly

rate in excess of that in the Baltimore market if it can justify

it. See Reyazuddin v. Montgomery Cnty., Md., 2022 WL 4608331, at

*12 (D. Md. Sept. 30, 2022); Whitaker v. Navy Fed. Credit Union,

2010 WL 3928616, at *6 (D. Md. Oct. 4, 2010) (finding departure

from the District of Maryland guidelines justified). Moreover,

the court considers the prevailing market to be the Middle District

of North Carolina and will consider the Maryland local rule rates

as only one of several factors in determining reasonableness. BGL

also relies on reference to fee awards it received in other cases,

but those markets were California, and Chicago, Illinois, where

fees are traditionally higher, and which are not comparable legal

markets to the one here. (See Doc. 174 at 20.)

Here, Plaintiffs seek reimbursement at current rates for all

their lawyers’ time for the past five years. The law allows this;

but it also allows the court to account for the inflationary

reduction in a delay in payment. Daly v. Hill, 790 F.2d 1071,

1081 (4th Cir. 1986). The court should also consider each lawyer’s

experience and training throughout the five-year pendency of this

case. Reyazuddin, 2022 WL 4608331, at *12 (considering lawyers’

experience when they actually worked on the case).

Here, Mr. Strawbridge, who was admitted to practice law in

2016, had 4 to 7 years of experience during the pendency of this

case. Even under the high end of the Maryland fee guidelines, his

rate would be $225 to $300 an hour within that community. His

requested rate of $485 exceeds this by half or more. While he

graduated law school in 2016, he clerked for a federal district

judge and then clerked for a federal circuit judge. (Doc. 174-2

at 7.) So, he was a relatively new associate when he joined BGL

in 2020. (Id.) Plaintiffs also offer declarations that his rate

is reasonable for firms within the Middle District of North

Carolina that practice “sophisticated and complex litigation.”

(Doc. 174-19 at 8-9; see also Doc. 174-21 at 4 (stating rates

“appear reasonable and consistent with the rates charged by

attorneys of like experience”); Doc. 174-22 at 4 (same); Doc. 174-

23 at 5 (same).) However, the court finds that an hourly rate of

$485 for a young associate exceeds the comparable rate here for

this type of work, and his rate will be reduced to $375. This is

in line with the hourly rate of one of Plaintiffs’ North Carolina

declarant attorneys who has been licensed since 2015 and charged

between $350 and $400 an hour. (Doc. 174-23 ¶ 13.)

Ms. Weber, who was admitted to the bar in 2009, had 9 to 15

years of experience during the pendency of this case. (Doc. 174-

2 at 4-6.) The guidelines suggest a rate of $350 to $425 at the

high end. Her rate of $675 exceeds this amount. Ms. Weber is a

graduate of Yale Law School and Princeton University and also

served as a law clerk to a federal district judge. (Id.) She has

extensive experience in disability cases and is recognized by

Lawdragon 500 as a leading plaintiff civil rights lawyer. (Id. at

5-7.) As with Mr. Strawbridge, Plaintiffs offer the opinion of

North Carolina lawyers that this rate is comparable to a local

market rate. (Docs. 174-19 at 8-9, 174-21 at 4, 174-22 at 4, 174-

23 at 5). The court finds that her experience justifies a rate in

excess of the Maryland guidelines, but in the present market should

be reduced to $575.

Ms. Crawford graduated law school in 2013 and clerked for a

federal district judge, then for a federal circuit judge. (Doc.

174-2 at 8.) She worked on the motion to dismiss phase of the

case (from approximately 2019 to 2020) and in 2022 was listed in

Lawdragon 500 as a leading civil rights lawyer. (Id.) She would

have had 5 to 10 years of experience at the time of this case.

Her hourly rate of $625 exceeds the Baltimore local rules rate,

which, at the high end, is $300 to $350. While Plaintiffs offer

North Carolina-based declarations as to the reasonableness of this

rate as for the other timekeepers, the court finds that comparable

attorneys in North Carolina would charge approximately $425 an

hour for the nature of the work performed in this case. (See Doc.

174-23 ¶ 13 (noting 2015 graduate charging $350-$400 an hour);

Doc. 174-21 ¶ 4 (noting 2008 graduate charging $400 an hour).)

The court finds her rate should be reduced accordingly.

Ms. Hill, who was admitted to the bar in 1989, has over 30

years of experience as a disability rights attorney, having served

as Deputy Assistant Attorney General of the United States

Department of Justice, Civil Rights Division. (Doc. 174-2 at 7.)

She served as supervising partner for six months while Ms. Weber

was on parental leave. (Id.) Her rate of $725 an hour exceeds

the $425 high end of the Baltimore rate. However, she is clearly

a highly credentialed attorney, and her many years of experience

justify a higher rate. The court cannot say that $725 an hour is

unreasonable for her experience and skill level, given the nature

of the work performed here, so it will leave that rate undisturbed.

Paralegals rates under the Maryland local rules range from

$95 an hour to $150 an hour. The court finds no basis to compensate

BGL paralegals higher than the $150 an hour charged by DRNC and at

the high end of the Maryland local rules rate. Therefore, BGL’s

paralegals’ time will be compensated at $150 an hour.

At these new rates, the following are the totals for the hours

spent on the merits case that the court has found to be

compensable:

BGL Law Firm

TIMEKEEPER HOURS RATE TOTAL FEE

Eve Hill 24.9 $725 $18,052.50

Jessica Weber 517.5 $575 $297,562.50

Chelsea Crawford 49.5 $425 $21,037.50

James Strawbridge 985.6 $375 $369,600.00

Angela Lima 150.5 $150 $22,575.00

Samantha Duckworth 58.2 $150 $8,730.00

Shana Fischer 13.3 $150 $1,995.00

TOTAL FEE: $739,552.50

DRNC

TIMEKEEPER HOURS RATE TOTAL FEE

Holy Stiles 810.5 $325 $263,412.50

Christopher 1,253.0 $300 $375,900.00

Hodgson

Lisa Grafstein 24.1 $375 $9,037.50

Nicholas Lett 217.4 $150 $32,610.00

TOTAL FEE: $680,960.00

Also at these new rates, the following are the totals for the hours

spent on the present motion for fees and expenses, which includes

briefing on legal issues:

BGL Law Firm

TIMEKEEPER HOURS RATE TOTAL FEE

Jessica Weber 54.7 $575 $31,452.50

James Strawbridge 112.8 $375 $42,300.00

Angela Lima 21.7 $150 $3,255.00

TOTAL FEE: $77,007.50

f. Contingency of a fee

There is no contingency fee in this case, so this factor is

inapplicable to the lodestar calculation.

g. Time pressures imposed in the case

Plaintiffs do not argue the application of this factor, nor

can the court discern any urgency to the proceedings which in fact

carried on for almost five years. This factor is neutral.

h. Award involved and the results obtained

As noted above, Plaintiffs achieved significant success for

Plaintiffs Bone and Miles through their settlements and for the

court-ordered injunction issued for the benefit of both Miles and

Dr. Scott. In addition, Plaintiffs managed to effect meaningful

changes in the manner UNCHCS conducted its patient intake process

to ensure that UNCHCS’s medical records for sight-impaired

patients are tagged to avoid the types of deficiencies in providing

adequate medical information that plagued Miles’s and Dr. Scott’s

experiences. This litigation has also caused UNCHCS to create a

working group to continue to monitor and improve its services to

sight-impaired patients. In significant ways, therefore, as the

court noted in its permanent injunction opinion, “UNCHCS has

already implemented much of what Plaintiffs ask[ed] for in their

proposed injunction” (Doc. 167 at 99), which warrants some credit

to the Plaintiffs. See Project Vote/Voting for Am., Inc. v.

Dickerson, 444 F. App’x 660, 662-664 (4th Cir. 2011) (considering

voluntary actions taken during the course of litigation when

considering the overall results obtained by the prevailing

party).14

Where Plaintiffs fell short was their attempt to impose on

UNCHCS’s healthcare system burdensome requirements based on “best

practices” that were not required by the law and to do so across

the UNCHCS network that included all contractors, and to persist

in this request even after UNCHCS offered to implement substantial

relief. Plaintiffs’ ultimate legal relief was undoubtedly far

narrower than the award they sought from the court, which likewise

requires consideration in the fee award. To avoid duplication in

its reductions, the court merely notes this factor here and

addresses it further in Section 4 below.

i. Experience, reputation, and ability of

the lawyers

For the reasons noted above, Plaintiffs’ counsel are highly

credentialed and, as noted by their accomplishments and the

opinions of other outside counsel, enjoy a reputation for

excellence.

j. Undesirability of the case

Plaintiffs do not argue this factor. However, DRNC states in

its declaration of Holly Stiles that “most North Carolina attorneys

with relevant experience in the plaintiff’s bar would have been

reluctant or unable to take this case on a pro bono or contingency

14 Unpublished opinions of the Fourth Circuit are not precedential but

can be cited for their persuasive, but not controlling, authority. See

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

basis given the complexity and time-consuming nature of the

litigation” and that “most larger firms that offer pro bono

assistance within the state have conflicts due to current or past

work on behalf of state government and/or UNC Health Care System.”

(Doc. 174-8 at 7.) UNCHCS does not address this factor, but these

are logical, practical barriers to finding suitable counsel that

the court considers which weigh in Plaintiffs’ favor.

k. Nature and length of the professional

relationship between the lawyer and the

client

Plaintiff NFB notes that it has had a decades-long association

with the BGL firm. (Doc. 174 at 17; Doc. 174-20 ¶¶ 8-10.) While

Plaintiff DRNC did not have such a relationship, it sought out the

BGL firm because of that firm’s decades-long history of

successfully representing the disabled and the DRNC’s inability to

prosecute its claims alone. (Doc. 174-8 at 7-8.) This factor

thus weighs in favor of Plaintiffs.

l. Fee awards made in similar cases.

Plaintiffs do not offer any comparable fee awards from other

similar cases. Rather, they rely on their arguments that their

request is reasonable by pointing to the fact that a substantial

fee award has been made where the plaintiff’s recovery was nominal.

(Doc. 178 at 3-4 & n.1 (citing Mercer, 401 F.3d at 202, 204, 208-

09 (noting $350,000 in fees awarded despite “nominal” damages

award).)

* * *

Based on all of the above, the court calculates the following

lodestar award: $816,560.00 in fees allocated for work performed

by the BGL firm,15 and $680,960.00 in fees allocated for the work

performed by DRNC, for a total lodestar amount of $1,497,520.00.

3. Adjustment for unsuccessful claims

Once the lodestar award is determined, the court is next to

subtract any fees incurred on unsuccessful claims unrelated to

successful ones. Robinson, 560 F.3d at 244. Here, Plaintiffs

have already excluded any fees related to their unsuccessful

challenge to the magistrate judge’s recommendation on UNCHCS’s

motion to dismiss. (Docs. 172-3 ¶ 22, 172-9 ¶ 14.) The only claim

under which no relief was had was the ADA Claim against Nash

brought in Claim II, which sought injunctive relief against Nash

and was dismissed at an earlier stage for lack of standing. (Doc.

44 at 24, 32-38; Doc. 57 (adopting the recommendation of the

magistrate).)

UNCHCS contends that the extent of the injunctive relief

obtained was largely limited to two individuals for three years.

(Doc. 177 at 2.) This argument is more properly considered in the

15 As the prior charts indicate, $739,552.50 of this amount is

attributable to the merits portion of the case and $77,007.50 is

attributable to the present motion for fees and expenses. The court

separates them because any adjustment for success on the merits is not

made to amounts related to the preparation of the present motion for

fees and expenses.

section below on the ultimate measure of success achieved.

4. Adjustment for measure of success achieved

Finally, the court considers any adjustments in the lodestar

upward or downward based on the measure of success achieved by the

Plaintiffs. Hensley, 461 U.S. at 434. Plaintiffs characterize

the results achieved as “excellent.” (Doc. 174 at 24.) UNCHCS

characterizes the victory as a “merely technical” one which “only

vindicated the rights of two people.” (Doc. 177 at 2.)

The court’s measuring point is a comparison of the relief

sought to the relief obtained. Mercer, 401 F.3d at 205. While in

a case seeking injunctive relief this is ordinarily a comparison

to the relief granted, id. at 205, a plaintiff can be deemed

successful even where the relief was agreed to as a result of the

litigation and thus not required to be ordered. See Project Vote,

444 F. App’x at 662-664 (limiting the scope of Buckhannon to the

prevailing party inquiry and noting that voluntary action

undertaken in connection with the litigation, even without a

judicial order, may be considered as part of the prevailing party’s

overall success).

As the court notes above, in addition to the monetary relief

granted Miles and Bone, the prosecution of this litigation prompted

UNCHCS to implement changes which, because UNCHCS had already

undertaken them, the court declined to include in a mandatory

order. They were addressed in detail in this court’s final

memorandum opinion and order but included the following principal

results: agreeing to extend payment deadlines for sight-impaired

individuals; agreeing to post conspicuous notices on the UNCHCS

webpage for accessible formats; establishing a process for the

fielding of complaints; improving written communications and

external webpage for sight-impaired individuals with formats that

comply with American Council of the Blind standards; establishing

an ADA Workgroup consisting of a multidisciplinary team to evaluate

policies on an ongoing basis and ensure effective communication;

and perhaps most importantly, establishing a uniform and automatic

process within the UNCHCS computer system for the intake of patient

information at reception to ensure that the patient’s file would

be flagged for the particular needs of the sight-impaired patient

by all providers who had access to the health record. (Doc. 167

at 24-30, 98-102.)

However, Plaintiffs failed to persuade the court to adopt the

extensive changes to the Epic and MyChart medical records

systems – and to adopt them across the large UNCHCS healthcare

system – that were the feature of their lawsuit. In many ways, it

is hard to parse some of this larger effort from Plaintiffs’

claims, as UNCHCS’s failures to provide Plaintiff Miles with

effective communications was related in part to the problems he

had accessing UNCHCS’s medical records online using his JAWS Fusion

and ZoomText screen reader programs. (Doc. 167 at 6-7.) Those

problems, in turn, related (at least in part) to the way Epic and

MyChart documents were uploaded and stored. Thus, Plaintiffs’

efforts to improve those systems identified potential problems.

But Miles and Dr. Scott were the only patients presented to the

court to have experienced such problems, and Miles declined

UNCHCS’s efforts to work with him to try to figure out why his

computer was unable to interface with the UNCHCS system.

What is clear to the court is that Plaintiffs’ efforts to

seek overbroad injunctive relief served as an impediment to

resolution of these claims. Complicating the case was the fact

that much of the important relief UNCHCS eventually implemented

was reported to the court very late in the day, even the day before

the court’s scheduled hearing on the motion on December 14, 2022.16

Because Plaintiffs’ efforts to impose overbroad changes to

the medical records system, the court concludes that a reduction

is appropriate as it relates to that relief. The court is directed

to make a reasoned calculation of the measure of success based on

the complete record. “There is no precise rule or formula for

making these determinations. [A] district court may attempt to

identify specific hours that should be eliminated, or it may simply

reduce the award to account for the limited success.” Hensley,

16 To the extent there was the need for further legal work and a hearing

after that date, UNCHCS is partly to blame as it chose to wait so late

to update the record with new information about its continuing efforts

to respond to Plaintiffs’ challenges.

461 U.S. at 436–37. Here, the court finds that a 25 percent

reduction in the fee award for the original merits portion of the

case is appropriate based on the relative success of Plaintiffs’

claims. An overall award valued at 75 percent of the adjusted

totals sought for the original merits portion fairly captures the

meaningful change that Plaintiffs were able to achieve through

their pursuit of this litigation, tempered by the overbroad scope

of the relief sought and the ultimately narrow scope of the relief

actually awarded. Based on that reduction, Plaintiffs are entitled

to a fee award for the original merits portion of $554,664.38 for

the fees sought by BGL and $510,720.00 for the fees sought by DRNC.

However, the court finds it would be unfair to similarly

reduce the fee award for the portion of fees accumulated during

the present motion for fees and expenses period. Thus, it declines

to make any reductions to those fees and preserves them at their

adjusted lodestar amount of $77,007.50 attributable to the BGL

firm. Thus, the final award for fees totals $1,142,391.88, with

$631,671.88 in fees for the BGL firm and $510,720.00 for DRNC.

5. Compensable Expenses and Costs

Plaintiffs seek $114,074.61 in litigation expenses and

costs.17 UNCHCS contends that this amount should be reduced

“because of Plaintiffs’ limited success and because parties are

17 Of these expenses and costs, BGL is seeking $97,563.58, including

$59,843.25 in expert witness fees, and DRNC is seeking $16,511.03.

not entitled to reimbursement for ‘questionable litigation

expenses.’” (Doc. 177 at 21.) UNCHCS points to what it contends

are vague expert time entries, charges in full or half-hour

increments, and full charges for travel time. (Id.) Plaintiffs

respond that UNCHCS “nitpicks” the expenses, never contests that

experts were essential to Plaintiffs’ success, and “ignores the

modest hours both experts billed.” (Doc. 178 at 12.)

“[A] prevailing plaintiff is entitled to compensation for

reasonable litigation expenses” along with the attorney’s fees

under the relevant statutes in this action. Daly, 790 F.2d at

1084. “Reasonable litigation expenses include such expenses as

‘secretarial costs, copying, telephone costs and necessary

travel.’” Certain v. Potter, 330 F. Supp. 2d 576, 591 (M.D.N.C.

2004) (quoting Trimper v. City of Norfolk, Va., 58 F.3d 68, 75

(4th Cir. 1995)). Most relevant here, reasonable litigation

expenses may include recovery for expert witness fees where

appropriate. See, e.g., Lovell v. Chandler, 303 F.3d 1039, 1058

(9th Cir. 2002); Hall v. Claussen, 6 F. App’x 655, 681–82 (10th

Cir. 2001).

While Plaintiffs point out that Dr. Morris, one of their

experts, tracked her time in 30-minute increments, that is slight

justification for the generic entries and suggests some overvalued

timekeeping. The court will therefore reduce reimbursement of Dr.

Morris’s time, which is valued at $17,134, by 20 percent, leading

to a reduced gross value of $13,707.20. Dr. Quon’s billing in

quarter-hour increments, while not ideal, will not be disturbed.

His work is valued at $42,709.25. However, for the same reasons

noted as to the award of attorneys’ fees, the court will reduce

the overall expert expense award for both experts by 25 percent to

reflect the level of success on the merits Plaintiffs achieved in

this litigation. Thus, the total expert award is $42,312.34.

Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 2017

WL 4400754, at *8-*10 (E.D.N.C. Sept. 29, 2017) (reducing expert

reimbursement based on partial success on the merits); Favors v.

Cuomo, 39 F. Supp. 3d 276, 309 (E.D.N.Y 2014) (same).

Plaintiffs seek reimbursement for all other expenses incurred

for, among other things, electronic research, travel costs,

deposition transcripts, delivery and postage, electronic discovery

platform fees, a share of the mediation fee, the medical records

fee, and teleconference fees in a total amount of $54,231.36, with

BGL claiming an entitlement to $37,720.33 and DRNC claiming an

entitlement to $16,511.03. BGL’s expenses can be further broken

down, as $36,325.95 was spent on the merits portion of the case

and $1,394.38 was spent on the present motion for fees and

expenses. UNCHCS does not address these in specific. The court

will therefore award them, subject to a 25 percent reduction in

the expenses for the merits portion to account for the ultimate

degree of success obtained. Therefore, those expenses total

$28,638.84 for BGL and $12,383.27 for DRNC for a total award of

non-expert expenses of $41,022.11.

Costs are awardable pursuant to 28 U.S.C. § 1920, and they

are potentially subject to the offset provided by Plaintiffs’

failure to have accepted UNCHCS’s offer of judgment. However,

Plaintiffs have not identified any awardable costs in their

application. The court need not consider this factor further.

Thus, the overall compensable expenses are $83,334.45, with

BGL recovering $70,951.18 and DRNC recovering $12,383.27.

B. UNCHCS’s Motion for Costs

UNCHCS moves for an award of costs following its August 1,

2022 offer of judgment pursuant to Federal Rule of Civil Procedure

68, which Plaintiffs did not accept. (Doc. 171-1.) UNCHCS argues

that it offered to accept a consent decree awarding Plaintiffs

more expansive relief than they obtained on their motion for

injunctive relief. (Doc. 171 at 2.) UNCHCS seeks an award of

$2,396.22 for costs of transcripts “necessarily obtained for use

in the case after communicating its August 3 [sic], 2022 Rule 68

Offer.” (Id.) Plaintiffs oppose the request, arguing that the

deposition transcript costs are not recoverable because the

depositions took place before the offer of judgment was made and,

in any event, the offer of judgment was not more favorable than

the court’s final judgment. (Doc. 175 at 1.) In reply, UNCHCS

contends that it necessarily incurred the costs of these

transcripts because it had to purchase them in order to respond to

Plaintiffs’ continued argument that system-wide relief was

necessary, and its proposed consent decree was clearly more

favorable. (Doc. 176.)

Rule 68 provides: “At least 14 days before the date set for

trial, 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(a). If the opposing party does

not accept the offer within 14 days and “the judgment that the

offeree finally obtains is not more favorable than the unaccepted

offer, the offeree must pay the costs incurred after the offer was

made.” Fed. R. Civ. P. 68(d). For deposition costs to be

recoverable, they must have been “incurred after the offer was

made.” Id.

Here, Plaintiffs contend that because the depositions of

Virginia Knowlton Marcus, Chief Executive Officer of Plaintiff

DRNC, and Mark Riccobono, President of Plaintiff NFB, were

originally taken pursuant to Federal Rule of Civil Procedure

30(b)(6) on February 16 and 17, 2021, some 18 months before the

offer of judgment, they are ineligible as having been incurred

before the offer. (Doc. 175 at 1-3; Doc. 171-2 at 3-4.) Plaintiffs

note that UNCHCS received transcripts from the depositions within

the month of their taking and even attached transcript excerpts to

its brief in support of its motion for summary judgment. (Docs.

108-16, 110-11, 113-17, 114-18; Doc. 122-14.) UNCHCS notes,

however, that while the depositions were taken before the offer of

judgment, the invoices were not received by its counsel until

November 5, 2022, and paid after that time. (Doc. 171-2.)

Plaintiffs are correct that these invoices were not “incurred

after the offer [of judgment] was made,” as required by Rule 68(d).

Rather, the depositions were taken by UNCHCS, and thus the

liability incurred, on February 16 and 17, 2021, nearly a year and

a half before the offer of judgment. While the cause for delay in

getting the invoices to UNCHCS is not entirely clear and is

irrelevant in this instance, it appears that the invoices were

initially sent to UNCHCS’s insurer and then refused as falling

within a self-insured retention. (See Doc. 171-2 at 3-4 (“Chubb

has advised Veritext [the court reporter] that there is an open

SIR on this claim. As the Insured has not paid the invoice your

office will need to resolve it.”).) For this reason, these costs

are not recoverable, and the court need not resolve whether the

offer of judgment was more favorable than the court’s judgment.

III. CONCLUSION

This case was brought to vindicate the rights of UNCHCS

patients who suffer from a sight-related disability. An obvious

purpose of the fee-shifting statutes is to encourage meritorious

cases. City of Riverside, 477 U.S. at 574 (noting that

“[r]egardless of the form of relief he actually obtains, a

successful civil rights plaintiff often secures important social

benefits that are not reflected in nominal or relatively small

damages awards,” which justifies fee-shifting). However, there is

something seriously amiss where after more than four and one-half

years of litigation, the prevailing parties’ request for

attorneys’ fees and expenses exceeds $2.1 million, which is nearly

seventeen times the amount of the compensation paid to two

Plaintiffs, and the three-year injunctive relief benefitted only

two individuals, one of whom is not even a Plaintiff. As set out

extensively above, this is largely because of three reasons. Here,

Plaintiffs sought to pursue a test case to remake the electronic

medical records system for a massive state healthcare provider by

imposing a national standard containing “best practices” for

sight-impaired patients that the law did not require. The

healthcare provider, UNCHCS, while logically resisting that

effort, nevertheless demonstrated repeatedly that it could not

ensure that a mere three individuals, Plaintiffs Bone and Miles,

as well as Dr. Scott, were provided access to their medical records

that was equally effective as that of other patients. Along the

way, however, UNCHCS did manage, voluntarily, to significantly

improve its practices for sight-impaired patients – changes that

will benefit Plaintiffs as well as other sight-impaired patients.

It did so, however, after Plaintiffs rejected UNCHCS’s offer to

consent to an extensive proposed judgment granting Plaintiffs much

of the relief they sought. Yet, the court cannot, and did not,

consider Plaintiffs’ rejection of that offer because one of the

three laws they sued under did not allow it.

For the reasons noted, therefore,

IT IS ORDERED that Plaintiffs’ Motion for Attorneys’ Fees,

Expenses, and Costs (Doc. 172), is GRANTED IN PART AND DENIED IN

PART as follows:

1. As to work performed by the BGL law firm, UNCHCS shall

pay Plaintiffs $631,671.88 for attorneys’ fees and

$70,951.18 for litigation expenses, for a combined

amount of $702,623.06; and

2. As to work performed by DRNC, UNCHCS shall pay Plaintiffs

$510,720.00 for attorneys’ fees and $12,383.27 in

litigation expenses, for a combined amount of

$523,103.27.

IT IS FURTHER ORDERED that UNCHCS’s motion for costs (Doc.

171) is DENIED.

/s/ Thomas D. Schroeder

United States District Judge

March 8, 2024.