Salazar v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

OSCAR SALAZAR, et al . ,

Plaintiffs,

v. Civil Action No. 93-452 (GK)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs' counsel have filed a Motion for an Award of

Litigation Costs, Including Attorneys' Fees and Expenses, for

2012 and for Work in the District Court That Had Been Held in

Abeyance Related to Defendants' Motion to Terminate the Consent

Decree [Dkt. No. 1850]. The Court has already awarded

Plaintiffs' counsel $482,663.13 for fees undisputed by

Defendants [Dkt. No. 1891]. Therefore, the amount remaining to

be dealt with in this Motion is $851,853.46, and Plaintiffs'

counsel seek a total award of $1,334,516.59. 1 Upon consideration

of the Motion, the Opposition [Dkt. No. 1882], the Reply [Dkt.

No. 1903], Defendants' Surreply [Dkt. No. 1909], an Errata [Dkt.

No. 1912] , Plaintiffs' Supplemental Brief [ Dkt. No. 194 3] , and

1

Plaintiffs' counsel originally sought $1,352,052.28 in fees and

expenses. Mot. at 2. However, in their Reply, Plaintiffs'

counsel reduced their request by $17,535.69. See Pls. Ex. 26

[Dkt. No. 1903-5].

the extensive record in this case, the Court concludes that the

Motion should be granted in part and denied in part.

Defendants raise many arguments that were addressed at

length in the Court's recent Memorandum Opinion [Dkt. No. 1922]

granting in part and denying in part Plaintiffs' Motion for an

Award of Litigation Costs, Including Attorneys' Fees and

Expenses, For 2011 and Certain Categories and Work from 2010

Through 2012 That Had Previously Been Held in Abeyance or Not

Decided. Salazar v. Dist. of Columbia, No. 93-452, F. Supp.

2d 2014 WL 342084 (D.D.C. Jan. 30, 2014) ("Salazar III").

The Court will incorporate the analysis in Salazar III and focus

this opinion on the resolution of arguments that were not

previously raised.

I. APPROPRIATE BILLING RATES FOR COUNSEL

In Salazar III, 2014 WL 342084, at *1-*3, this Court upheld

the use of the Legal Services Index ("LSI") of the Nationwide

Consumer Price Index ("CPI") to update the Laffey rates at which

Plaintiffs' counsel are compensated. For all of the reasons laid

out in Salazar III, the Court again concludes that the LSI is a

more reasonable and accurate index for the costs of legal fees

than the All-Items CPI for the Washington, D.C. area. See id.;

see also Eley v. Dist. of Columbia, No. 11-309, F. Supp. 2d

2013 WL 6092502, at *9-*10 (D.D.C. Nov. 20, 2013) (a

-2-

thorough and comprehensive decision by Judge Beryl Howell that

reached the same conclusion) . Thus, Defendants' request to apply

the All-Items•CPI for the Washington, D.C. area shall be denied.

II. APPROPRIATE BILLING RATES FOR SERVICES OF PARALEGALS TO

INDIVIDUAL CLASS MEMBERS, PURSUANT TO PARAGRAPH 64 OF THE

SETTLEMENT ORDER

Defendants argue that Paragraph 64 of the Settlement Order

prohibits Plaintiffs' counsel for charging for the work non-

lawyers provide to individual class members. See Order Modifying

the Amended Remedial Order of May 6, 1997 and Vacating the Order

of March 27, 1997, at 40 (emphasis added) [Dkt. No. 663]

("Settlement Order"). In Salazar III, this Court ruled that

paralegals may be compensated for such work under the Settlement

Order. 2014 WL 342084, at *3-*4. Defendants raise no new

arguments, and, thus, their request to deny fees for work done

by paralegals is again denied.

III. LEGAL WORK ON BEHALF OF INDIVIDUAL CLASS MEMBERS

A. Adequacy of Time Records

Defendants challenge Plaintiffs' counsel's "pervasive use

of vague billing descriptions and block billing." Defs.' Opp' n

at 13-18. They seek a 10% across-the-board reduction for

vagueness and a 5% across-the-board reduction for block billing. 2

2

Defendants also request a 5% reduction for "duplicative work by

multiple attorneys." Defs.' Opp'n at 18-19. The substance of

Defendants' claim overlaps with their request for a general

-3-

Defendants cite several cases establishing that time

records which include unrelated tasks that do not specify how

much time was spent on each task are insufficient. Defs.' Opp'n

at 17. However, that is not the situation here.

The Court finds that Plaintiffs' counsel's time records,

including those cited by Defendants, contain a high level of

detail. Plaintiffs' counsel have summarized how much time was

spent on each type of case (i.e. reimbursement, reimbursement

fair hearings, recertification, recertification fair hearings,

referrals for non-class members, EPSDT). They use categories and

subcategories to further identify the type of work described in

the time entries. The time spent on each individual task for

each class member is specified down to the minute.

Thus, the time records for individual claims are presented

in a fashion that allows this Court to review Plaintiffs'

counsel's records for reasonableness. Because the time records

are adequate and for the same reasons the Court rejected this

argument in Salazar III, 2014 WL 342084, at *4, Defendants'

request for across-the-board reductions for vagueness and block-

billing shall be denied. 3

across-the-board reduction for overstaffing, Defs.' Opp'n at 9-

10, and will be addressed below in Section XIV.

3

The Court also encourages the parties to confer about providing

Plaintiffs' counsel's time records in an electronic format that

-4-

B. Unsuccessful Individual Claims

Defendants object to $22,132.11 in fees that Plaintiffs'

counsel have requested for work on four individual claims where

Plaintiffs did not prevail. Defs.' Opp'n at 19-22.

The Court has recently emphasized that "Plaintiffs are

entitled to attorneys' fees for the work they do to monitor

Defendants' compliance with the extensive and detailed

Settlement Order, negotiated and consented to by all parties in

this case, as long as the efforts of Plaintiffs' counsel are

'reasonably related to the claims upon which Plaintiffs were

definitely successful.'" 2014 WL 342084, at *4 (quoting Turner

v. Orr, 785 F.2d 1498, 1504 (11th Cir. 1986)); see also Blackman

v. Dist. of Columbia, 390 F. Supp. 2d 16, 20 (D.D.C. 2005)

(noting that "test is whether the later issues litigated were

inextricably intertwined with those on which the plaintiff

prevailed in the underlying suit") (quotation and citation

omitted).

This does not mean, as Defendants suggest, that this Court

has granted de facto prevailing party status to Plaintiffs for

every claim they make. However, Plaintiffs' counsel are clearly

entitled to compensation for the work they do representing

individual class members on claims related to denials or

might permit Defendants to sort and search them in a more

efficient fashion.

-5-

reduction of services to EPSDT-eligible children and for

failures to reimburse beneficiaries for out-of-pocket expenses,

issues that were long ago decided in Plaintiffs' favor by this

Court. See Salazar v. Dist. of Columbia, 954 F. Supp. 278, 328-

34 (D.D.C. 1996). By the same reasoning, Plaintiffs' counsel are

not entitled to fees for work done on "a claim that is distinct

in all respects from [Plaintiffs' ] successful claims." Hensley

v. Eckerhart, 461 U.S. 424, 440 (1983).

Three of the individual claims challenged by Defendants

involved representing individuals in administrative hearings on

issues "inextricably intertwined" with those on which Plaintiffs

prevailed in this suit. First, Plaintiffs' counsel requested a

fair hearing for "R. E." to challenge a decision to suspend or

terminate the child's chiropractic therapy services without

adequate advance notice. Second Affidavit of Bruce J. Terris, at

c:IT 20 (Dec. 5, 2013) ("Second Terris Affidavit") [Dkt. No. 1903-

3] . Eventually, a third party paid for the services, so a fair

hearing was no longer necessary. Id.

Second, Plaintiffs' counsel requested a fair hearing for

"D. H." to request reimbursement for significant out-of-pocket

expenses owed to her for medical services rendered to her

children. Id. at c:IT 21. Near the date of the hearing, D.H.

-6-

withdrew her request for reasons beyond the control of counsel.

Id.

Third, Plaintiffs' counsel requested a fair hearing for

"R.H." to challenge a decision by the DC Healthy Smiles Program

denying payment for deep gum and root cleaning and surgical bone

reshaping services. Id. at <J[ 22 (incorporating Second Affidavit

of Bruce J. Terris, at <J[ 29 (Aug. 26, 2013) [Dkt. No. 1859-1]). 4

R. H. eventually was unable to keep dental appointments for a

period of time, and Plaintiffs' counsel eventually lost contact

with him and his mother. Id.

All three claims involved representing individuals in

administrative hearings on issues "inextricably intertwined"

with those on which Plaintiffs prevailed in this suit. The Court

has already found that Plaintiffs' counsel are entitled to

compensation for representing class members within the scope of

the Settlement Order, even if the client chooses to withdraw her

case or if the firm loses contact with the client. Salazar III,

2014 WL 342084, at *5. Thus, Defendants' request to deny fees

for these three claims because Plaintiffs' counsel were

unsuccessful shall be denied.

4

This Court already found that "Defendants identify no evidence

that indicates the representation of [R.H.] was outside the

scope of the Settlement Order, nor that the dismissal [] [was] on

the merits." Salazar III, 2014 WL 342084, at *5.

-7-

However, Defendants are correct that they should not be

billed $6,002.13 for the 44.792 hours of work Plaintiffs'

counsel did on behalf of "A.S." Defs.' Opp'n at 21-22. The issue

in that case was whether the Social Security Administration

erroneously withheld a portion of A. S. 's Supplemental Security

Income. Plaintiffs concede that the District of Columbia did not

act in error and the relief Plaintiffs' counsel pursued and

obtained was from the federal government, not the District of

Columbia. Id. at <JI 23. Thus, the claim is "distinct in all

respects" from Plaintiffs' claims against the District of

Columbia, Hensley, 461 U.S. at 440, and the $6,002.13 billed for

representing "A.S." shall be denied.

C. ~leged Excessive Billing

Defendants argue that Plaintiffs' counsel have billed an

excessive amount of time for work on individual claims, and seek

a 40% across-the-board reduction to all fees claimed for

individual work. Defs.' Opp'n at 22-24.

First, Defendants note that Plaintiffs' counsel are seeking

more compensation for work done in calendar year 2012 than they

sought for work done in calendar year 2011. Defs.' Opp'n at 22.

Plaintiffs' counsel explained that there was a significant

increase in the number of individuals requesting assistance,

particularly because of Defendants' continuing failure to

-8-

provide timely reimbursement notices and an increase in

recertification processing problems. Pls.' Mot. at 19-22.

Plaintiffs' counsel are obligated under the Settlement

Order to assist the members of the class, and Defendants have

not provided any reason to doubt Plaintiffs' counsel's

assertions that the number of indi victuals requiring assistance

increased. Thus, the fact that Plaintiffs' counsel billed a

higher amount this year than last year does not, in and of

itself, signify that their requested amount is excessive.

Second, Defendants argue that comparing the time spent on

individual claims by Plaintiffs' counsel to the time spent by

counsel for their adversaries reveals that Plaintiffs' counsel

are overli tigating. Defs.' Opp' n at 22. The Court has already

found such comparisons inapt. Salazar III, 2014 WL 342084, at *6

n. 7 (noting that "[s] o many different factors enter into the

reasons for the differences between [hours spent by Plaintiffs'

counsel and hours spent by counsel for a Managed Care

Organization ("MCO")] that the Court finds the comparison of no

help whatsoever"); id. at *6 n.5 (stating that comparison

between Plaintiffs' counsel and Defendants' counsel "would, for

many reasons, be of little use to the Court").

The Court notes that although the amounts and services

sought in these claims may be relatively small to the Defendants

-9-

and their MCOs, the amounts are both large and incredibly

significant to Medicaid beneficiaries. Thus, in the absence of

any compelling justification, the across-the-board reduction for

all work on individual claims sought by Defendants shall be

denied.

The Court will address the specific examples raised by

Defendants in turn. First, Plaintiffs' counsel billed Defendants

$12,837.33 for 95.801 hours of work related to the case of

"R. P." Defendants argue that this amount of work for a single

status hearing is "grossly excessive" and particularly object to

being billed 1. 68 hours for basic research and 1. 32 hours for

reviewing Office of Administrative Hearing rules. Defs.' Opp' n

at 23. Plaintiffs' counsel argue that they "spent substantial

time developing RP' s case," including sending cease and desist

letters, making document requests, drafting a discovery motion,

negotiating settlement, and monitoring compliance with the

settlement agreement. Pls.' Reply at 18. Based on the record,

the Court concludes that the claim for $12,837.33 shall be

reduced by 10%.

Second, Plaintiffs' counsel billed Defendants for 30.748

hours of work related to the case of "D. K." Defendants argue

that the amount is excessive because the case was resolved prior

to an evidentiary hearing. Defs.' Opp' n at 23. Plaintiffs note

-10-

that only 27.56 hours were charged for work on the "O.K." case.

Id. at 18 n.15. They also insist that the amount of time charged

is reasonable because there were seven status conferences. They

eventually engaged in direct negotiations with the provider's

attorney and obtained a favorable resolution of the case without

an evidentiary hearing. Pls.' Reply at 18.

Plaintiffs' counsel should not be penalized for obtaining a

settlement rather than trying their case. Thus, the Court

concludes that fees for the 27.56 hours requested for this work

are reasonable and shall be granted.

Third, Plaintiffs' counsel billed Defendants for 21.367

hours of work related to the case of "E. C. " 5 Defendants again

argue that is excessive given that there was only one status

conference held in this case. Defs.' Opp' n at 23. Plaintiffs'

counsel argue that E. C.'s services were improperly terminated

due to a mistake by Defendants, and that it took a substantial

amount of time to identify how and where the error had occurred

and obtain a reinstatement of E. C' s eligibility and services.

Pls.' Reply at 19-20. Based on the record, the Court concludes

that the amount billed for the 21.367 hours spent on the "E.C."

matter shall be reduced by 5%.

5

One of Defendants' specific objections was that Plaintiffs'

counsel billed almost an hour to file a Notice of Appearance.

Defs.' Opp' n at 23. In their Reply, Plaintiffs removed their

request for that time. Pls.' Reply at 19; Pls. Ex. 26.

-11-

Fourth, Plaintiffs' counsel billed Defendants for 217.29

hours of work related to the case of "T.M.," including over 60

hours of work for reviewing medical records. Defs.' Opp'n at 23-

24. Plaintiffs' counsel explain that T.M. is a severely disabled

child and that the claim challenged a decision to reduce his

nursing hours by more than half. Pls.' Reply at 19. They insist

that T. M. 's complex medical problems, which changed over the

course of the representation, required detailed review ·of

thousands of pages of medical records. Id. Even though it is a

large amount of hours, the Court concludes that the fees for

217.29 hours of work for this matter are reasonable and shall be

granted.

Fifth, Plaintiffs' counsel billed Defendants for 86.967

hours of work related to the case of "J.C." Defendants' only

argument is that the MCO spent less than half of that time

defending the claim. Defs.' Opp' n at 24. Plaintiffs' counsel

explain that they met several times with the child's parent,

therapists, and physicians, and eventually obtained a settlement

agreement re-establishing that speech and language therapy

services were medically necessary. Pls.' Reply at 20. Based on

the record, the Court concludes that Plaintiffs' counsel's

request for 86.967 hours for work on the "J.C." case is

reasonable and shall be granted.

-12-

IV. SETTLEMENT DISCUSSIONS

During 2012, the parties engaged in settlement discussions

for which Plaintiffs' counsel bill the District of Columbia

$245,548.83 6 for over 585 hours of work. 7 Defendants argue this

is excessive and ask the Court to reduce that amount by 50%.

The Court addressed the same arguments in 2011. Salazar

III, 2014 WL 342084, at *8. The Court found that comparing the

number of individuals each party brought to settlement

discussions was "a comparison between apples and oranges." Id.

Moreover, the Court noted that Plaintiffs' counsel are billing

for settlement discussions at the monitoring rate set forth in

Paragraph 65 of the Settlement Order, rather than the higher

rates charged for non-monitoring work under Paragraph 66. Id.

Thus, for the same reasons set out in Salazar III, Defendants'

request for a reduction of fees billed for settlement

discussions shall be denied.

V. MOTION TO TERMINATE CONSENT DECREE

On March 18, 2009, Defendants filed a Motion to Terminate

Consent Decree and Subsequent Remedial Orders and To Dismiss the

6

Defendants originally identified $130,936.44 as the amount of

fees requested for work related to settlement, but filed an

Errata clarifying the amount. Errata Concerning Defs.' Opp'n to

Pls.' 2012 Fee Application [Dkt. No. 1912].

7

This does not include the significant amount of hours charged

for work done by co-counsel related to settlement, an issue

addressed below. See infra Sec. XIII.

-13-

Case ("Motion to Terminate") [Dkt. No. 1456, refiled at Dkt.

Nos. 1481, 1482]. The Court issued an Order concluding that the

most efficient way to resolve the Motion to Terminate was to

first consider the discrete legal question of whether or not

Plaintiffs have a private right of action to enforce the Early

and Periodic Screening, Diagnostic, and Treatment ( "EPSDT")

services provision of the Medicaid Act under 42 U.S. C. § 1983.

Order of May 26, 2009 [Dkt. No. 1489].

On August 5, 2010, the Court concluded that the Supreme

Court's decision in Gonzaga University v. Doe, 536 U.S 273

(2002), did not preclude Plaintiffs' assertion of a private

right of action. Salazar v. Dist. of Columbia, 729 F. Supp. 2d

257, 268-271 (D.D.C. 2010).

The Court has not yet addressed the District's other

grounds for moving to terminate the consent decree -- namely,

that Defendants are now in compliance with federal law and are

unlikely to violate those laws in the future. See Motion to

Terminate, at 20-50. In part, this is because the District

appealed the Court's ruling on the private right of action issue

without first seeking a ruling on its alternative argument. On

March 13, 2012, that appeal was dismissed by the Court of

Appeals for lack of jurisdiction. Salazar ex rel. Salazar v.

Dist. of Columbia, 671 F.3d 1258 (D.C. Cir. 2012).

-14-

In the two years since the Court of Appeals ruled,

Plaintiffs have not renewed their request for discovery 8 and the

District has not sought a ruling on its alternate argument. The

Court understands that this issue is being addressed in the

comprehensive settlement negotiations that the parties have been

engaged in over the last few years. The Court fully supports

these efforts.

Plaintiffs' counsel now seek $170,838.89 in fees for 282.75

hours spent on work related to Defendants' motion. They argue

that Defendants have "effectively abandoned" the remaining

issue. Mot. at 23. Defendants raise two arguments. First, they

argue that it is premature for Plaintiffs' counsel to bill for

this work because a significant part of the Motion remains

pending. Defs.' Opp'n at 31. They cite the Court of Appeals

determination dismissing their appeal as evidence that no "final

order" has been issued. Id. (citing 671 F.3d at 1259). Second,

they argue that the Court should reduce the amount requested by

Plaintiffs' counsel by at least $29,996.03 because the billing

is excessive and unreasonable. Defs.' Opp'n at 22-23.

8

Plaintiffs originally filed a motion for discovery stating that

Plaintiffs "need to conduct substantial discovery" in order to

respond to the portion of Defendants' motion that claims they

are now in compliance with the Medicaid Act. Pls.' Mot. to Take

Discovery [ Dkt. No. 14 7 2] . That motion was denied in light of

the Court's determination to first resolve the legal issue.

Order of May 26, 2009 [Dkt. No. 1489].

-15-

The Court will not address the second of Defendants'

arguments because it agrees with the first. Only four months

before this Motion was filed, Plaintiffs acknowledged that the

Motion to Terminate "remains pending in this Court." Pls.' Mem.

of Law in Support of Their Mot. for an Award of Litigation

Costs, Including Attys.' Fees & Expenses, For 2011 & Certain

Categories of Work From 2010 Through 2012 That Had Previously

Been Held in Abeyance or Not Decided, at 3 n.2 [Dkt. No. 1803-

1]; see also id. at 5 (noting that they were holding in abeyance

their request for fees relating to this matter as a matter

"which ha [ s] not yet been resolved") . Nothing has changed in

these four months. Thus, the Court will again defer ruling on

this issue until the Motion to Terminate has been resolved, and

Plaintiffs' request for $17 0, 8 38. 8 9 in fees at this time shall

be denied.

However, in order to clarify the record, the parties shall

confer and file a Notice by April 15, 2014, informing the Court

whether the Motion should be held in abeyance pending the

ongoing settlement discussions, whether the Motion should be

denied without prejudice, or whether the parties wish the Court

to set a briefing schedule and a date for an evidentiary hearing

on the remaining issues.

-16-

VI . FEES ON FEES

Plaintiffs' counsel have billed Defendants $91,367.19 for

four attorneys and three paralegals for approximately 175 hours

spent preparing several fee requests and attempting to settle

f~e disputes. Defendants argue that the Court should reduce

those fees by at least $20,063.34. The Court will address each

request in turn.

A. Settlement of Fee Request for the Second Half of 2010

and Preparation of Motion

Plaintiffs' counsel seek $19,077.90 9 for the 31.899 hours

they spent settling their fee request for the second half of

2010 and preparing the undisputed Motion for fees. Defendants

challenge two billing records and ask the Court to deny the

$2,972.73 requested in those records,. Defs.' Opp'n at 27-28.

First, Defendants object to paying $2,165.30 for 2.95 hours

used by Mr. Terris to "edit various orders," "edit praecipe,"

and "edit papers." Id. at 27. Plaintiffs' counsel argue that

amount was reasonable because the work Mr. Terris reviewed was

drafted by an Of Counsel lawyer, not a fellow partner. Pls.'

Reply at 25. Based on the record, the Court concludes that the

$2,165.30 shall be reduced by 10%.

9

Plaintiffs originally sought $19,383.98, but agreed to not

charge for time spent distributing fees awarded to co-counsel,

and reduced their request by .419 hours, or $306.08. Pls.' Reply

at 25 n.20; see Pls. Ex. 26.

-17-

Second, Defendants object to paying $660.64 for the 1.183

hours it took to prepare and file Plaintiffs' undisputed Motion

for fees. Defs.' Opp'n at 27-28. Plaintiffs' counsel argue that

was a reasonable amount of time to file a motion with fourteen

exhibits and the required public notices. Pls.' Reply at 25.

Based on the record, the Court concludes that this amount is

reasonable and Defendants' request for reduction shall be

denied.

B. Attempted Settlement of Fee Requests for 2011 and

Preparation of Motion

Plaintiffs' counsel seek $68,399.66 for 137.084 hours spent

attempting to settle the amount of fees due for work in 2011 and

time spent preparing the disputed Motion for fees. Defendants

challenge four billing records and ask the Court to deny the

$16,345.53 requested in those records. Defs.' Opp'n at 28-29.

First, Defendants object to paying $5,438.37 for an

associate to "work on co-counsel fees." Plaintiffs' counsel

argue that the amount of time was reasonable, and note that

Defendants' overstated the billed amount by approximately $200.

Pls.' Reply at 25-26, 25 n.21. Based on the record, the Court

concludes that this amount is reasonable and Defendants' request

for reduction shall be denied.

-18-

Second, Defendants object to paying $1,986.61 for

Plaintiffs' counsel to "communicate with paralegal re settlement

letter," "instructions to staff re settlement letter," "instruct

paralegal on creating charts," and "review templates for

charts." Plaintiffs' counsel argue that this amount of time

spent "providing supervision and guidance" to paralegals was

reasonable. Pls.' Reply at 2 6. Based on the record, the Court

concludes that the $1,986.61 shall be reduced by 5%.

Third, Defendants object to paying $3,334.55 for an

associate to "export time slips to database," "review

timeslips," and "work on database for expenses." Plaintiffs'

counsel argue that this work was part of "reviewing,

supervising, and editing a paralegal's preparation of time

records and other exhibits." Pls.' Reply at 2 6. Based on the

record, the Court concludes that the $3,334.55 shall be reduced

by 5%.

Fourth, Defendants object to paying $5,585 for Ms. Millian

to respond to an email from the District of Columbia.

Plaintiffs' counsel argue that there were in fact two emails

from the District of Columbia requesting detailed information

and asking several detailed questions. Pls.' Reply at 2 6. They

insist that their ten page single-spaced response email, at a

minimum, established the types of information Plaintiffs will

-19-

produce in future requests and explained Plaintiffs' counsel's

billing requests to Defendants' counsel. Id. Based on the

record, the Court concludes that this amount is reasonable and

Defendants' request for reduction shall be denied.

C. Attempted Settlement of Fee Requests for 2012 and

Preparation of Motion

Plaintiffs' counsel seek $3,889.62 for the 5.467 hours of

time spent attempting to settle the amount of fees due for work

in 2012. Defendants challenge as vague one billing record, in

which Mr. Terris billed $439 for speaking with other attorneys

in the firm about settlement. Defs.' Opp'n at 29. Based on the

record, the Court concludes that this amount is reasonable and

Defendants' request for reduction shall be denied.

VII. AGENDA LETTERS AND STATUS CONFERENCES

Plaintiffs' counsel request $70,843.12 for preparing for

seven and attending six status conferences during 2012. In

Salazar III, the Court held for the fifth time that Plaintiffs'

counsel were overcharging for this type of work. 2014 WL 342084,

at *8-*9. The Court reduced Plaintiffs' counsel's request of

$52,730.52 for six status conferences by 35%. Defendants now

seek to cap the amount awarded to Plaintiffs' counsel for each

status conference at $4, 8 95.83. 10 Defs.' Opp' n at 34. For the

10

In its Opposition to Plaintiffs' 2011 Motion for Attorneys'

Fees, Defendants requested that Plaintiffs receive a maximum of

-20-

seven conferences this year, that would permit Plaintiffs'

counsel $34,271.51 in fees.

Plaintiffs' counsel argue that the Court should instead

award the much higher "average" amount it has permitted for

status conferences over the years, namely, $8,759. Pls.' Reply

at 27; Pls. Ex. 58. They agreed to reduce their total fee

request to $61,313, which reflects an amount of $8,759 for each

of the seven conferences held in 2012. 11

The Court notes that the chart made by Plaintiffs' counsel

to calculate the average amount awarded per status conference

contains an error. 12 Moreover, the chart does not reflect the

Court's decision in Salazar III that Plaintiffs' counsel should

receive only $5,172 for the six status conferences held in 2011,

a rate significantly below the $8,7 59 rate they now suggest.

2014 WL 342084, at *9.

As the Court noted in Salazar III, "[t]he Court is still of

the view that the letters are informative and are very helpful

$4,800 per status conference, based on the Court's decision in

Salazar v. Dist. of Columbia, 750 F. Supp. 2d 70, 75 (D.D.C.

2011). Their suggestion adjusts the $4,800 rate for inflation.

11

Plaintiffs' counsel deducted an erroneous charge for $1,967,

Pls.' Reply at 28, but that amount was reduced from the total

amount they seek in fees, not the amount they seek per status

conference. Pls. Ex. 26.

12

The Opinion addressing Plaintiffs' Motion for Fees for January

through June 2007 awarded fees for agenda letters and status

conferences based on five scheduled status conferences, not

three, as Plaintiffs' counsel presented. Mem. Op. of Oct. 28,

2009, at 10 [Dkt. No. 1520].

-21-

in highlighting important issues, the Court firmly

believes useful letters can be produced in less time." Id. at *9

n.12. Moreover, given that Defendants often bring two attorneys

from the Attorney General's office and two experienced and

knowledgeable agency administrators to each conference, it is

not unreasonable for Plaintiffs to bring the two attorneys· who

are most well-versed in this case.

Even after taking into account those considerations,

Plaintiffs' counsel still fail to offer any convincing

justification for the high fees charged for preparing and

participating in these conferences. Thus, based on the $5,172

awarded per status conference in 2011, the Court will award

Plaintiffs' counsel $5,277.87 ($5,172 adjusted for inflation)

for each of the seven status conferences held in 2012. See Pls.

Exs. 6, 58 (setting forth method for calculating inflation of

rates from year to year) .

VIII. INTRA-OFFICE CONFERENCES

Defendants claim that approximately $166,582.59 has been

billed to the District "that involve some intra-office

conference and much of this is duplicate billing." Defs.' Opp'n

at 34. They ask the Court to reduce the amount billed by at

least 25%.

-22-

In Salazar III, the Court found that a 20% reduction in

fees sought for intra-office conferences was appropriate, noting

that there were "[c]ertainly instances in the billing entries in

which 3, 4, or 5 lawyers attended, and presumably participated

in" intra-office conferences. 2014 WL 342084, at *6. However,

the amount sought in that fees petition was only $25,000. Id.

Here, however, Defendants have identified an amount more than

six times as high. This appears to be because Defendants'

estimate includes the total time on all billing records that

mention a conference, but does not exclude time listed in those

records spent on other tasks. Pls.' Reply at 28-29.

As already noted and as discussed further below, infra Sec.

XIV, the overstaffing of this case is a serious issue. Our Court

of Appeals has noted that it is problematic when the "hourly

rates charged are of such magnitude as to indicate that the

attorneys should have been able to decide on the proper strategy

without the great number of strategy conferences attended by

numerous firm lawyers." In re Olson, 884 F.2d 1415, 1429 (D.C.

Cir. 1989) (noting that four principal lawyers worked on the

case, but that the "number of conferences among the twenty-one

attorneys who did some work on the matter were excessive") .

Thus, the Court continues to be very concerned about Plaintiffs'

-23-

counsel's practices regarding intra -office conferences and how

time is billed for these conferences.

Moreover, given the state of Plaintiffs' counsel's time

records, it is difficult to ascertain exactly how many intra-

office conferences occurred, how many attorneys attended each

one, how much time each of the attorneys actually spent at each

conference, and for how many of those attorneys Plaintiffs'

counsel requested fees. Thus, in all future Motions for Fees,

Plaintiffs' counsel shall identify the total amount they are

requesting for time spent in intra-office conferences, the

number of participants, the participants for whom they are

billing Defendants, and the amount being billed for each

participant.

Because the Court does not have a reasonable estimate of

how much time Plaintiffs' counsel is billing for the 2012 intra-

office conferences, and the burden is on Plaintiffs' counsel to

provide sufficient information so that the Court can make a

determination as to the reasonableness of the fees sought, the

$166,582.59 sought in all time records that reference an intra-

office conference shall be reduced by 25%.

-24-

IX. ATTENDANCE AT MEETINGS OF THE D.C. MEDICAL CARE ADVISORY

COMMITTEE ("MCAC")

Defendants challenge Plaintiffs' counsel's request for

$8,250.71 for three lawyers and two paralegals to attend the

monthly conferences of the MCAC. Defs.' Opp'n at 35-36. In

Salazar I I I, the Court awarded fees for attending these

meetings, noting that it was important to "keep up to date on

plans and announcements of the District of Columbia Department

of Health Care Finance about the Medicaid program," and

recognized that Plaintiffs' counsel often send paralegals

instead of lawyers to keep costs down. 2014 WL 342084, at *8.

The Court notes that Plaintiffs' counsel are requesting

almost double the amount they billed in 2011. Plaintiffs'

counsel argue that this is reasonable because, in 2012, the

District sought a new set of MCOs, implemented major health

reform and information technology initiatives, and issued

s~veral new policies and rules affecting class members. Pls.'

Reply at 30. Given the need for Plaintiffs' counsel to be up to

date on developments that affect class members, especially

developments of this magnitude, the amount billed is reasonable

and Defendants' request shall be denied.

-25-

X. EXPERT REPORTS

Defendants challenge Plaintiffs' counsel's request for

$7,570.24 for reading reports and attending conferences

sponsored by the National Health Law Program ("NHeLP"). Defs.'

Opp'n at 35; Defs. Ex. 19. 13 Plaintiffs' counsel agreed to deduct

the amount of time counsel spent attending the National Health

Law Program, which amounts to 13. 7 hours, or $5, 610. 10. 14 Thus,

the amount remaining in dispute is $1,960.14.

Plaintiffs' counsel seeks fees for four types of work:

1) participating in NHeLP conference calls (Billing Records

5030, 4416, 4404); 2) reviewing NHeLP draft comments on

regulations (Billing Record 4539); 3) reading NHeLP letters

(Billing Records 3841 and 3855); and 4) "confer[ring] with NHeLP

colleague re strategy for mediation" (Billing Record 4638).

Defs. Ex. 19.

The first three of these categories reflect work that is

unrelated to this case. Thus, the $1, 8 02. 63 in fees requested

for those billing records shall be denied. However, the fourth

category of work relates to mediation in this case, and thus, i

I

13

Defendants erroneously added $2,677.50 to the total $7,570.24

challenged, which already included the $2,677.50. See Defs. Ex.

19; Pls.' Reply at 29 n.24.

14

Plaintiffs' counsel erroneously state in their reply that the

reduced amount is only $5,110.10. Pls.' Reply at 29. However,

the actual reduction is $5,610.00. Pls. Ex. 26.

-26-

Plaintiffs' counsel's request for $157.51 for such work shall be

granted.

XI. CLERICAL ACTIVITIES

Defendants again challenge $17,572.12 billed for

"Document/Database Management" as clerical work that is not a

billable expense. Defs.' Opp'n at 36. Plaintiffs' counsel assert

that this work is not clerical, but rather an essential part of

monitoring motions in the federal courts and tracking individual

claims in an Access database. Pls.' Reply at 31 (incorporating

Second Affidavit of Bruce J. Terris, <JI<JI 131-33 (Aug. 26, 2013)

[Dkt. No. 1859-1]). They also note that it would cost Defendants

far more if lawyers had to enter, manage, and track the relevant

information. Id.

The Court addressed this issue in Salazar III and found

that "billing $14,401.09 for document and database management

over a period of more than a year is not unreasonable or

excessive." 2014 WL 342084, at *8. Based on the record, the

Court concludes that the amount requested, $17,572.12, shall be

reduced by 5%.

XII. BILLING MORE THAN EIGHT HOURS A DAY

Defendants again challenge the handful of occasions where

Plaintiffs' counsel billed for more than eight hours in one day,

for which Plaintiffs' counsel request $27,524.50. In Salazar

-27-

III, the Court observed that, "[w]hile this Court does not

endorse forcing lawyers to work exhausting hours, it has

absolutely no business telling them how many hours a day they

should work if they are capable of doing so." 2014 WL 342084, at

*9. For the same reasons, Defendants' request shall be denied.

XIII. FEES REQUESTED BY CO-COUNSEL

Plaintiffs' counsel billed the District of Columbia

$84,609.00 for 136.6 hours of legal services provided by co-

counsel Jane Perkins, Legal Director of NHeLP, and $21, 431.25

for 35 hours worked by co-counsel Rev. Lynn E. Cunningham. In

Salazar III, the Court recognized that "[b]oth of these

individuals have extensive experience in public interest

litigation attempting to secure the rights of poor people for

adequate health care." 2014 WL 342084, at *9. However, in light

of the over-lawyering in this case and the failure by

Plaintiffs' counsel to establish that the work done by co-

counsel could not "easily have been done by Plaintiffs' lawyers

or paralegals in their District of Columbia office, or brief

telephone consul tat ions about written pleadings being prepared

for filing," the Court limited the fee request for co-counsel to

50% of what was being sought. Id. at *9-*10. 15

15

The Court also denied payment for fees requested for co-

counsel to review National Academy for State Health Policy

reports, 2014 WL 342084, at *11, and denied fees requested for

-28-

The Court first notes that Plaintiffs' counsel seek

$52, 935. 90 in fees for work done by Perkins and $4, 932.15 for

work done by Cunningham on the Motion to Terminate. Pls.' Mot.

at 24. As discussed above, supra section V, that Motion has not

yet been fully resolved and thus any award of fees for work on

that Motion is premature. Thus, the Court will not award fees

for work on that Motion at this time. Therefore, Plaintiffs'

counsel's request for that amount for the work done by

Cunningham and Perkins on that Motion shall be denied at this

time. 16

As to the remaining $48,172.20 sought for the work of co-

counsel, Defendants make four arguments. The Court will address

each in turn.

First, Defendants argue that neither Perkins nor Cunningham

provided contemporaneous billing records and that the records

they did provide are vague, unspecific, and "mere summaries of

activity." Defs.' Opp'n at 41-43. The Court finds that the time

records submitted by Perkins and Cunningham contain

"sufficiently detailed information about the hours logged and

the work done" to permit the Court to evaluate the

Cunningham's work associated with agenda letters and status

conferences, id. at *9.

16

Thus, the Court does not need to address Defendants' other

arguments related to the request for fees for Perkins' work on

this Motion. See Defs.' Opp'n at 40-41.

-29-

reasonableness of their request for fees. See Nat' 1 Ass' n of

Concerned Veterans v. Sec'y of Defense, 675 F.2d 1319, 1327

(D.C. Cir. 1982) (per curiam); see also Affidavit of Jane

Perkins, at 4-8 [Dkt. No. 1850-17]; Affirmation of Lynn E.

Cunningham, at 2-8 [Dkt. No. 1850-18]. Thus, co-counsel will not

be denied fees on this basis.

Second, Defendants argue that Perkins and Cunningham should

receive the customary rates for their current local

jurisdictions (North Carolina and Wyoming, respectively) rather

than being compensated at the rates for the District of

Columbia.

The parties agree that the general rule is that counsel is

compensated based on the rates paid in the community where the

district court is located. See Donnell v. United States, 682

F.2d 240, 251 (D.C. Cir. 1982); see also Davis Cnty. Solid Waste

Mgmt. & Energy Recovery Special Serv. Dist. v. E.P.A., 169 F.3d

755, 757-58 (D.C. Cir. 1999). Thus, the presumption is that both

Perkins and Cunningham would be entitled to District of Columbia

rates.

Our Court of Appeals has identified two exceptions to this

rule. First, the attorney's local rate should apply "when an

out-of-town attorney is used because of special expertise or the

unwillingness of local counsel to take the case." Davis, 169

-30-

F. 3d at 7 58 (discussing Donnell, 682 F. 2d at 251-52) . Second,

the attorney's local rate should apply "where out-of-

jurisdiction lawyers would receive substantially higher rates

than they ordinarily command for work done almost exclusively in

their home territory." Davis, 169 F.3d at 758.

Defendants argue that Perkins and Cunningham fall under the

second exception, because they work outside the District of

Columbia in jurisdictions where attorneys presumably charge

lower rates. 17 In support of their argument, Defendants cite a

Report and Recommendation by Magistrate Judge Facciola

recommending that a Massachusetts attorney, Monica Wagner, be

compensated for her work on a D.C. case at Massachusetts rates.

Palmer v. Rice, No. 76-1439, 2005 WL 1662130, at *20 (D.D.C.

July 11, 2005) (holding that Massachusetts rate was appropriate

because the "great majority of Wagner's time was spent working

on this case in Massachusetts, and because the difference in the

rate she charges her clients ($140 per hour) and the rate the

Terris firm seeks for her work ($370 per hour) is substantial").

Defendants fail to note and should have noted that

Judge Henry Kennedy rejected Magistrate Judge Facciola's

recommendation related to Wagner's rates. Mem. Op & Order of Jun

27, 2007, at 6-8 [Case No. 76-1439, Dkt. No. 664]. Judge Kennedy

17

Neither Perkins nor Cunningham specified the rates at which

attorneys are compensated in their local jurisdictions.

-31-

concluded that the Donnell exception did not apply because

Wagner's expertise stemmed from her familiarity with the

underlying litigation, not to any expertise related to

Massachusetts, where the work was performed. Id. at 7.

He then concluded that the Davis exception did not apply

because "[a] t all times that Wagner worked on this litigation,

plaintiffs understood that they had engaged the Terris firm,

which is based in the District of Columbia, and plaintiffs had

no reason to know of Wagner's relocation nor to imagine that she

would be paid at Massachusetts rates." Id. at 8. Thus, he

concluded that "the circumstances here are simply not the

'extreme situation' warranting an exception to the general rule

that attorneys are compensated at the prevailing rate in the

forum of the litigation." Id.

The situation in Palmer is similar to the situation in this

case. Both Perkins and Cunningham have worked on this case since

its filing in 1993. [Dkt. Nos. 1, 32]. Neither Perkins nor

Cunningham has a local litigation practice, but work as co-

counsel in a variety of jurisdictions on cases involving

Medicaid, child health, and poverty. See Affidavit of Jane

Perkins [ Dkt. No. 18 50-17] (describing expertise in Medicaid and

child health issues); Affirmation of Lynn E. Cunningham [Dkt.

No. 1850-18] (describing expertise in federal challenges to

-32-

actions taken by District of Columbia). Much like Palmer,

Defendants have failed to show that the work done by co-counsel

falls under either exception identified by our Court of Appeals

to the general rule that forum rates should be paid. Thus, to

the extent that Perkins and Cunningham should be compensated for

their work, it will be at District of Columbia rates.

Third, Defendants argue that Cunningham's work is

duplicative of work done by other members of Plaintiffs'

counsel's firm. They argue that a large portion of his billing

entries are for reviewing documents and participating in

conference calls, and Plaintiffs have failed to show why this

work must be done by one of the two highest billing counsel

involved in this litigation. Defs.' Opp' n at 43-44. Plaintiffs'

counsel insist that Cunningham provides "significant legal

advice" to Plaintiffs "on matters such as settlement offers made

to defendants, compliance by MCO's, legal arguments in response

to defendants' motions, and numerous issues raised at status

conferences." Pls.' Reply at 37-38.

A review of Cunningham's time records supports Defendants'

arguments. Very few of Cunningham's time records reflect

substantive work on the issues in this case. His request for

$16,488.10 is primarily for reviewing documents, assisting

Plaintiffs' counsel in preparing his fee requests for

-33-

submission, and participating in conference calls with the other

three highest-billing attorneys working for Plaintiffs. For

example, Cunningham billed $5,676.20 for work on agenda letters

and status conferences. Defs.' Opp' n at 33 n .10. As the Court

noted in Salazar III, 2014 WL 342084, at *9 n.13, it "cannot

imagine what Rev. Cunningham had to contribute to the

preparation of these conferences," and no additional information

has been provided to the Court on that issue.

In sum, Cunningham's submissions and the affidavits of

Plaintiffs' counsel do not support a finding that the work he is

doing is necessary and reasonable for adequate representation of

the class in this litigation. Thus, the $16,499.10 requested for

Cunningham's work in 2012 shall be reduced by 50%.

Fourth, Defendants argue that Perkins is functioning as a

non-testifying expert consultant, not a practicing lawyer.

Defs.' Opp'n at 38-39. They insist that fees for experts are not

appropriately billable under section 198 8. Defs.' Sur reply, at

12 (citing Harvey v. Mohammed, 951 F. Supp. 2d 47, 73-74 (D.D.C.

2013) (holding that, with one small exception, expert fees are

not compensable under 42 U.S.C. § 1988).

The Court need not decide whether expert costs are

compensable because Perkins' time records show that she was

acting as an attorney. She performed legal research, helped

-34-

draft legal motions for filing in court, and participated in

settlement meetings and mediation sessions. See Affidavit of

Jane Perkins [Dkt. No. 1850-17]. This is work generally

performed by counsel, not experts. Thus, Defendants are

incorrect that she should be treated as a non-testifying expert

consultant and be denied fees on that basis.

Moreover, Perkins' affidavits adequately demonstrate that

she provides a crucial national perspective on issues related to

the ongoing mediation to provide dental care for the members of

the class. Given her well-documented experience on these issues,

the Court finds that she is entitled to fees for her work

related to the dental mediation. See Third Affidavit of Bruce J.

Terris, at <JI<JI 4-5, 7-8 (Feb. 3, 2014); Third Affidavit of Jane

Perkins, at <JI 4-5 (Feb. 3, 2014) . 18

However, because the fees requested on behalf of Perkins

include amounts billed for participating in conference calls on

other issues, including status conferences, for which

Plaintiffs' counsel have not demonstrated a need for her

18

The Court notes that Plaintiffs' counsel request fees for

Cunningham's participation in conference calls related to the

dental settlements, even though they have documented no reason

for his participation on that issue. See, e.g., Pls. Exs. 9, 17,

and 18 [Dkt. Nos. 1850-9, -17, -18]. This is particularly

unacceptable because Plaintiffs' counsel is already billing for

its three highest billers, Terris, Millian, and Perkins, to

participate in these conferences. A~ a rate of $562 an hour, and

in the absence of any demonstrated need for Cunningham's

participation, such fee requests are unreasonable.

-35-

participation, the fees requested for Perkins' work that are

unrelated to the dental mediation shall be reduced by 10%.

XIV. ACROSS-THE-BOARD REDUCTION FOR OVERSTAFFING

Defendants request a 15% reduction of all fees for

overstaffing. The Court has noted several incidents of

overstaffing and unnecessary billing for duplicative efforts in

this case. See supra Sec. III, VI, VII, VIII, and XIII.

This Court has repeatedly praised Plaintiffs' counsel for

its excellent representation of the members of the Plaintiff

class. Salazar III, 2014 WL 342084, at *10; Salazar v. Dist. of

Columbia, 750 F. Supp. 2d 70, 75 (D.D.C. 2011); Salazar v. Dist.

of Columbia, 123 F. Supp. 2d 8, 12 (D.D.C. 2000). However, the

Court has also repeatedly found that Plaintiffs' counsel request

unreasonably high amounts in fees because they overstaff this

case. Salazar III, 2014 WL 342084, at *6 (citing multiple prior

opinions noting Plaintiffs' counsel propensity for

overstaffing) .

The Court strongly reminds Plaintiffs' counsel that its

obligation is to use the least amount of attorney time necessary

to effectively represent the members of the class. As discussed

above, the Court will carefully scrutinize Plaintiffs' requested

fees for intra-office conferences in the future, in the hope

that this will minimize part of the over-staffing issue. This

-36-

includes conferences with Plaintiffs' counsel's high-billing co-

counsel, Cunningham and Perkins, for whom Plaintiffs' counsel

must justify in detail the necessity for their particular

participation. 19

At this time, however, because the Court has made specific

reductions to categories of fees where Defendants have

identified instances of overstaffing, Defendant's request for an

additional across-the-board reduction shall be denied. See

Salazar III, 2014 WL 342084, at *16.

XV. EXPENSES

Defendants raise several challenges to various expenses

sought by Plaintiffs' counsel. Defs.' Opp'n at 46-50. Many of

these challenges were resolved in Salazar III.

In that opinion, the Court concluded that Plaintiffs'

counsel were entitled to two types of expenses under 42 U.S.C.

§ 1988 -- "costs as defined by 28 U.S.C. § 1920," and expenses

"considered part of the traditional attorney's fee." 2014 WL

342084, at *13 (citing Harvey v. Mohammed, 951 F .. Supp. 2d 47,

67-69 (D. D.C. 2013)). The Court also concluded that Defendants

19

The Court is well aware that lawyers in private practice have

the luxury of overstaffing cases for which they will be paid by

their clients. Public interest lawyers suing government entities

do not have this luxury, primarily because the ultimate payer of

fees is the taxpayer. See Eureka Inv. Corp., N. V. v. Chicago

Title Ins. Co., 743 F.2d 932, 941 (D.C. Cir. 1984).

-37-

had not waived the right to challenge Plaintiffs' counsel's

litigation expenses. Salazar III, 2014 WL 342084, at *13.

The Court then addressed Defendants' challenges to specific

types of expenses. The Court upheld Plaintiffs' counsel's

ability to charge for ground transportation costs, telephone

charges, postage, and messenger and deli very services. Id. at

*13-14. The Court also concluded that Plaintiffs' counsel were

entitled to recover money spent on fax transmissions,

photocopying, and printing expenses. Id. at *14. However, the

Court found that the appropriate rates for reimbursing faxing,

black and white printing, copying, and scanning should be

.15/page, and the rate for color copying should.be .25/page. Id.

at *14-*15 (discussing Johnson v. Dist. of Columbia, 850 F.

Supp. 2d 74, 81-82 (D.D.C. 2012) and Squires ex rel. Squires v.

Breckenridge Outdoor Educ. Ctr., No. 10-309, 2013 WL 1231557, at

*7 (D. Colo. Mar. 27, 2013)).

Defendants raise no new arguments as to those categories of

expenses. Therefore, the Court will again permit Plaintiffs'

counsel to recover for ground transportation costs, telephone

charges, postage, messenger and delivery services, faxing,

copying, printing, and scanning. However, the rates for faxing,

printing, scanning, and black and white copying shall be reduced

-38-

to .15/page, and the rate for color copying shall be reduced to

. 25/page. 20

Defendants raise two new challenges. First, they argue that

they should not have to pay for fees for private process

servers. Defendants are correct that such expenses are neither

"a customary element of an attorney's fee" nor are they taxable

under section 1920. Sexcius v. Dist. of Columbia, 839 F. Supp.

919, 927-28 (D. D.C. 1993); see Harvey, 951 F. Supp. 2d at 72

(denying reimbursement for private process servers in case

evaluating expenses under section 1988). Thus, Plaintiffs'

counsel's request for $1, 930 spent on private process servers

shall be denied.

Second, Defendants challenge the $1,528.95 charged by

Plaintiffs' counsel for purchasing transcripts of the regular

status conferences and transcripts of proceedings before the

District of Columbia Office of Administrative Hearings. See

Affidavit of Bruce J. Terris at C[[ 27 (m) (July 22, 2013) [Dkt.

No. 1850-2]. 28 U.S.C. § 1920 defines costs to include fees for

"printed or electronically recorded transcripts necessarily

obtained for use in the case." 28 U.S. C. § 1920 (2). Whether a

20

Although Plaintiffs filed an affidavit regarding the rates

charged by an outside vendor in the District of Columbia,

Plaintiffs have still failed to explain the higher-than-average

costs charged by their firm. See Affidavit of Emily R. Gregg

(Dec. 4, 2013) [Dkt. No. 1903-44].

-39-

transcript was necessarily obtained "is a question of fact to be

determined by the district court." Sykes v. Napolitano, 7 55 F.

Supp. 2d 118, 120 (D.D.C. 2010).

The Court finds that the costs of the transcripts were

reasonable and necessarily obtained in order to efficiently and

effectively represent the plaintiff class. For example, at the

status conferences, one party often agreed to take certain

actions requested by the other party or the Court; D.C.

employees, such as Ms. Colleen Sonosky, the very able Associate

Director of the Department of Health Care Finance, provided

information and detailed explanations for the benefit of all

counsel; and various deadlines for submission/completion of

court filings as well as substantive reports were set. Thus, the

cost of obtaining these transcripts is reasonable and

reimbursable.

In sum, the Court finds that Plaintiffs' counsel are

entitled to reimbursement under section 1988 for the majority of

their litigation expenses. However, they are not entitled to

fees for private process servers, and they will again be

reimbursed at lower rates for their faxing, printing, and

copying expenses.

-40-

XIV. CONCLUSION

For the above reasons, Plaintiffs' Motion for an Award of

Litigation Costs, Including Attorneys' Fees and Expenses, for

2012 and For Work in the District Court That Had Been Held In

Abeyance Related to Defendants' Motion to Terminate the Consent

Decree [Dkt. No. 1850] is granted in part and denied in part.

An Order shall accompany this Memorandum Opinion.

March 21, 2014 Gf!!:A::£~

United States District Judge

Copies to: attorneys on record via ECF

-41-