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Misconduct case may cost JMU fees of $850K

jmu-copy_mainLawyers for a student who successfully challenged a sexual misconduct hearing at James Madison University should be paid nearly $850,000 by the school, a federal magistrate judge said. The school had argued the award should be less than half that amount.

Reviewing a sharply disputed fee petition, the judge said the former student’s lawyers obtained an excellent result despite strong opposition in a novel and complex area of the law.

The underlying case symbolized national debate over Title IX protections for victims of sexual misconduct. Heightened scrutiny of student discipline was enacted to prevent whitewash of assault claims, but some male students complained schools had unfairly tied the hands of the accused to test the credibility of the accuser.

Former JMU student “John Doe” contended he was denied a fair chance to respond to evidence that he engaged in nonconsensual sexual activity with a fellow freshman.  Although a federal district judge said the school denied Doe a meaningful hearing, the judge later ruled he could face a new student discipline proceeding if he re-enrolled.

While lawyers’ time sheets were under a microscope, both sides in the dispute agreed that a schedule of hourly fees topping out at $400 were reasonable in the Harrisonburg Division of the Western District of Virginia.

The report and recommendation on fees from Magistrate Judge Joel C. Hoppe is Doe v. Alger (VLW 018-3-026).

Plaintiff won right to new hearing

Doe was represented in the litigation by attorneys from the firm of Gentry Locke in Roanoke with assistance from the nonprofit Center for Individual Rights. The firms sought a total award of $999,377.05 including fees, expenses and costs. The fee figure alone was $964,623.50 for 3,427.1 hours of work.

JMU officials contended the fee award should be in the range of $336,000 to $364,000.

In the underlying case, Doe had claimed he was railroaded on a hearing appeal, according to Hoppe’s summary of the litigation.

Doe had enrolled in 2014 as a freshman. He had a relationship with “Jane Roe” who accused him of sexual misconduct. Doe prevailed at an initial hearing, but an appeal board reversed that decision and imposed a five-year suspension. Doe would have to reapply if he wanted to re-enroll.

Doe prevailed on summary judgment with a Fourth Amendment property interest claim. U.S. District Judge Elizabeth Dillon ruled Doe was entitled to a new hearing under new appeal procedures adopted by JMU.

Rates deemed resasonable

Doe sought compensation for the work of 10 lawyers and a paralegal. The top-earning lawyers on his case were former Virginia Chief Justice Cynthia D. Kinser at $400 an hour, W. David Paxton at $375 and Greg J. Haley at $350.  Michael E. Rosman of CIR also charged $350 an hour. The rates were supported by statements from attorneys John E. Davidson of Charlottesville, King F. Tower of Roanoke and Mark D. Obenshain of Harrisonburg.

“I agree with the parties that the requested rates are reasonable for the Western District of Virginia, specifically the Harrisonburg Division,” Hoppe wrote.

Defense expert unpersuasive

JMU, represented by lawyers from the state attorney general’s office, largely relied on a review of the fees performed by attorney Wayne G. Travell of Tysons Corner. He said many of the requested fees were unreasonable because they represented clerical tasks, block billing, conferences between firms, duplication of effort, inadequate description, non-legal advice or discussions, public relations or media discussions, travel and correspondence with vendors.

Hoppe discredited many of the criticisms.

“Travell’s conclusions and analysis are largely unpersuasive,” the judge wrote.

The “closely contested” case presented “novel legal issues with no established precedent in this District,” Hoppe said. It required significant discovery instigated by both parties and novel and complex civil rights litigation, he added.

“While the essence of the Defendants’ argument is that they believe GL and CIR overstaffed the case, were inefficient and duplicated each other’s work, they do not offer any specific support for this position,” Hoppe wrote.

Travell had contended at least 63 time entries should not be compensable, without acknowledging that the firm’s invoices requested no payment for those entries, Hoppe said. Travell’s criticism of billing for some “non-legal” tasks ignored the fact that those tasks had been necessitated by JMU’s discovery requests, the judge continued.

The judge took issue with Travell’s suggested award range. Travell did not explain his conclusion that 1,200 to 1,300 hours would have been a reasonable amount of billable time or clarify why he chose a blended hourly rate as opposed to using the individual rates he acknowledged as reasonable, Hoppe said.

Hoppe also took issue with a comparison to a similar civil rights lawsuit involving George Mason University. Hoppe said JMU officials overstated the parallels between the cases and the additional hours undertaken in the JMU case were reasonable.

Block billing

Travell’s criticism of block billing was legitimate, the judge concluded. One attorney at CIR often recorded only one entry per day, comprised of all the tasks for that day. She would frequently bill in quantities of five hours or more, with vague descriptions of the work, Hoppe said.

Although the nonprofit had already written off significant parts of its attorneys’ time, Hoppe recommended a 20 percent additional reduction of that one lawyer’s time.

The fact that two firms were involved did not – by itself – point to unreasonable duplication, Hoppe said. “The crux of the lodestar calculation is the reasonableness of the hours expended, not whether those hours were incurred by one or two firms,” he wrote. The judge noted a “clear division of work” between the firms.

The defendants also failed to give credit to the plaintiff’s firms for writing off nearly a third of GL’s time and more than 19 percent of CIR’s time, Hoppe said.

“This voluntary reduction demonstrates good billing judgment and weighs in favor of the reasonableness of the hours requested,” Hoppe wrote. Some inefficiencies and duplication justified a further 10 percent reduction, he concluded.

Hoppe recommended payment of $795,691.50 in fees for 2,873.6 hours. Approved expenses and costs brought the recommended overall award to $849,231.25.

The defendant JMU officials had 14 days to file objections.

VLW 018-3-026

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