                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
JILL MARCIN,                        )
                                     )
                  Plaintiff,        )
                                     )
      v.                            )   Civil Action No. 13-1308 (ABJ)
                                     )
RELIANCE STANDARD LIFE               )
INSURANCE COMPANY, et al.,           )
                                     )
                  Defendants.        )
____________________________________)

                                 MEMORANDUM OPINION

       Since 2010, plaintiff Jill Marcin has been engaged in litigation under the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., with defendants Reliance

Standard Life Insurance Company (“Reliance”) and Mitre Corporation Long Term Disability

Insurance Program (“Mitre”). Reliance denied plaintiff’s claim for disability benefits under the

Mitre plan on three previous occasions, but after each denial, the Court found that the denial was

not adequately justified, and it remanded the matter to the insurer for further consideration. See

Marcin v. Reliance Standard Life Ins. Co. (Marcin I), 895 F. Supp. 2d 105 (D.D.C. 2012); Mem.

Op. & Order (Apr. 14, 2015) [Dkt. # 43] (“Marcin II”); Marcin v. Reliance Standard Life Ins. Co.

(Marcin III), 138 F. Supp. 3d 14 (D.D.C. 2015). 1

       In Marcin III, the Court found that because the insurer’s decision to deny benefits to

plaintiff could not stand, judgment would be entered in favor of plaintiff. 138 F. Supp. 3d at 30.


1       Given the limited purpose of this phase of the proceedings – to determine damages – the
Court will incorporate its previous explanations of the facts and procedural history of this case,
and will not repeat them here. See Marcin I, 105 F. Supp. 2d at 107–12; Marcin II at 1–7; Marcin
III, 138 F. Supp. 3d at 17–21. And in line with the Court’s practice in its previous opinions,
citations to “AR1” refer to the administrative record filed in the first iteration of this case. See
Admin R., Marcin v. Reliance Life Ins. Co., No. 10-cv-1816 (ABJ) [Dkt. # 26].
In its Order, the Court directed the parties to address the sole remaining issue of damages in

supplemental filings due on October 26, 2015. Order (Oct. 14, 2015) [Dkt. # 47]. Plaintiff

responded to the Court’s Order with a motion. Pl.’s Mot. to Determine Damages & Att’y Fees

[Dkt. # 49] (“Pl.’s Mot.”); Mem. of P. & A. in Supp. of Pl.’s Mot. [Dkt. # 49-1] (“Pl.’s Mem.”).

Defendants responded with a memorandum of law in support of their position, Defs.’ Position as

to Damages [Dkt. # 50] (“Defs.’ Mem.”), and they also separately opposed plaintiff’s motion.

Defs.’ Mem. of Law in Resp. & Opp. to Pl.’s Mot. [Dkt. # 52] (“Defs.’ Opp.”). Plaintiff replied

in support of her motion, Pl.’s Reply to Defs.’ Opp. [Dkt. # 53] (“Pl.’s Reply”), and also responded

to defendants’ memorandum of law. Pl.’s Resp. to Defs.’ Mem. [Dkt. # 51] (“Pl.’s Resp.”).

       In light of the parties’ disagreement on the amount of damages that should be awarded, the

Court referred the matter to a Magistrate Judge for a Report and Recommendation. Order (Nov.

10, 2015) [Dkt. # 54]. The Magistrate Judge issued a Report and Recommendation on March 18,

2016. R. & R. [Dkt. # 56]. The Magistrate Judge found that plaintiff’s “Covered Monthly

Earnings,” should be based, as plaintiff argued, on an annual salary of $90,000 per year. R. & R.

at 7–8. But the Magistrate Judge agreed with defendants that plaintiff was entitled to only 24

months of benefits under the policy at this time. Id. at 9–10. And the Magistrate Judge found that

plaintiff was entitled to some attorneys’ fees, but not the full amount that her counsel requested.

Id. at 10–22. In total, the Magistrate Judge recommended that plaintiff should receive $57,840 in

damages, and $108,360 in attorneys’ fees, for a total award of $166,200. R. & R. at 22.

       Defendants objected to the recommended calculation of the benefits due based on the

“Covered Monthly Earnings” of $7,500 per month, or $90,000 per year, the award of attorneys’

fees and costs, and the award of post-judgment interest at the rate of 6 percent. Defs.’ Partial Objs.

to R. & R. [Dkt. # 57] (“Defs.’ Objs.”) at 1. Defendants did not object to the part of the Report



                                                  2
and Recommendation that found plaintiff entitled to only 24 months of benefits. Id. Plaintiff did

not file any objections to the Magistrate Judge’s decision, but she did respond to defendants’

objections. Pl.’s Resp. to Defs.’ Objs. [Dkt. # 58]. Defendants also supplemented their exhibits

with a more legible version of one of plaintiff’s pay stubs. Suppl. to Defs.’ Objs. [Dkt. # 61]

(“Defs. Suppl.”).

                                    STANDARD OF REVIEW

       Where, as here, a matter is referred to a magistrate judge for a report and recommendation,

the court must review de novo those portions of the findings and recommendations to which an

objection has been filed. LCvR 72.3(c); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.”). The court “may make a determination based solely on the record developed before the

magistrate judge, or may conduct a new hearing, receive further evidence, and recall witnesses.”

Id. The court “may accept, reject, or modify, in whole or in part, the findings and recommendations

of the magistrate judge, or may recommit the matter to the magistrate judge with instructions.”

Id.; see also Fed. R. Civ. P. 72(b)(3).

                                           ANALYSIS

       The Court reviews the Covered Monthly Earnings question de novo, in light of defendants’

objection. Based on its review of the record, it concludes that plaintiff’s salary was approximately

$90,000 per year, or about $43 per hour, and that the first 24 months of benefits should be

calculated on that basis. And given plaintiff’s lack of objection to this recommended procedure,

the Court will remand the matter to Reliance yet again to determine whether plaintiff is entitled to

benefits beyond 24 months. As to attorneys’ fees, the Court will apply a larger discount to




                                                 3
plaintiff’s counsel’s hours in light of counsel’s insufficient billing practices. The Court also

concludes that the post-judgment interest rate should be 0.27 percent.

I.     The Court finds that plaintiff’s salary was equivalent to $90,000 per year.

       Pursuant to the terms of the Reliance life insurance policy in question, the benefit amount

payable is calculated by multiplying the insured’s “Covered Monthly Earnings” by a percentage

that is set forth in the policy. Ex. C to Aff. of Karen McGill [Dkt. # 50-1] (“Policy”) at 2.0.

Plaintiff contends that her benefits should be based on an annual salary of $90,000 per year. Pl.’s

Mem. at 2–3. Defendants, relying on the affidavit of Karen McGill, an employee of Reliance, take

the position that plaintiff’s annual salary at the time that she became disabled was $72,000 per

year, or $6,000 per month, because she was working a reduced schedule at that time. Defs.’ Mem.

at 3; see Aff. of Karen McGill [Dkt. # 50-1] (“McGill Aff.”) ¶¶ 4, 6. Although there appears to be

no dispute that plaintiff’s annual salary was $90,000, defendants point out that the annual figure

was based on a 40-hour work week. Defs.’ Mem. at 3. According to defendants, since plaintiff

did not work 40 hours per week for “quite a while before she claimed disability,” and she had

reduced her hours to 32 hours per week, “there was a corresponding drop in her salary to $72,000.”

Id.; McGill Aff. ¶ 15.

       The definitions section of the Policy provides that:

               “Covered Monthly Earnings” means the Insured’s monthly salary received
               from [the employer] on the day just before the date of Total Disability, prior
               to any deductions to a 401(k) or Section 125 plan. Covered Monthly
               Earnings does not include commissions, overtime pay, bonuses or any other
               special compensation not received as Covered Monthly Earnings.

               If hourly paid employees are insured, the number of hours worked during a
               regular work week, not to exceed forty (40) hours per week, times 4.333,
               will be used to determine Covered Monthly Earnings. If an employee is
               paid on an annual basis, then the Covered Monthly Earnings will be
               determined by dividing the basic annual salary by 12.



                                                 4
Policy at 2.0. And the “Monthly Benefit” is calculated as “60% of Covered Monthly Earnings.”

Id. at 1.0.

        To calculate her monthly earnings, plaintiff points to an undated memorandum, addressed

 “To Whom It May Concern” from Mitre payroll supervisor Debra A. Deeb, which explains that

 “[t]he MITRE annual salary for Jill M. Marcin effective August 2007 was $90,000.00 and at that

 time she was scheduled to work 32 hours per week.” Ex. 1 to Pl.’s Mot. [Dkt. # 49-2]. Plaintiff

 also points to the Personnel Action Notification – which has more evidentiary value than the

 undated memorandum, as it appears to be a business record – which reflects the raise plaintiff

 received effective March 19, 2007 from $85,000 per year to $90,000 per year. Ex. 2 to Pl.’s Mot.

 [Dkt. # 49-3]. The document identifies plaintiff as a “Full-Time” employee, explains that the

 “official pay rate for all employees is the bi-weekly salary,” and it explains how that number is

 calculated. Id.

        Defendants point to a different business record, “a payroll record printout from near the

 time Ms. Marcin stopped working.” McGill Aff. ¶ 5; 2 Ex. B to McGill Aff. [Dkt. # 50-1]. The

 payroll record is a screenshot of plaintiff’s pay stub dated September 21, 2007, for the two-week

 pay period from September 3, 2007 to September 16, 2007, for which plaintiff was paid




2       The administrative record in this case, including Reliance’s own records, indicates that
there is no real dispute concerning when plaintiff was last at work: plaintiff’s disability claim
identifies August 19, 2007 as the “last day [she] worked before the disability,” but notes that she
was “most recently unable to work on a full time basis” beginning in March 2007. AR1 657. The
December 2007 letter from Mitre notifying Reliance of the potential claim says “Ms. Marcin has
not able to work since August 20, 2007.” AR1 1482. Indeed, Reliance never claimed that plaintiff
was not disabled in August 2007 – it denied her claim on the grounds that she got better, and that
she was not impaired after November 6, 2007 when she returned to work after her August surgery.
See AR1 743.

                                                5
$2,769.23. McGill Aff. ¶ 6; Ex. B. to McGill Aff. 3 McGill also offers the following information

in her affidavit:

               Plaintiff claims that her monthly benefit should be based on a yearly salary
               of $96,000 instead of $72,000. I spoke with The Mitre Group and was told
               that when Plaintiff was working 40 hours per week, her salary was $96,000;
               however, prior to and including August 20, 2007, Plaintiff reduced her
               hours to 32 per week and continued to work 32 hours or less until she
               stopped working on February 17, 2008. As a result, The Mitre Group
               reduced her salary to $72,000.
McGill Aff. ¶ 15.

       Defendants do not dispute that plaintiff’s annual salary for full-time work was supposed to

 be $90,000 (indeed, McGill states it was $96,000), and that figure seems to be amply supported

 by the Personnel Action Notification. Defendants argue that plaintiff’s “salary was reduced”

 when she reduced her hours, but what the record shows is that her regular hourly rate was simply

 applied to a reduced number of hours. Defendants’ exhibit, the Mitre payroll stub, states that

 plaintiff’s “hourly rate” was $43.27. Defs.’ Suppl. at 1. Since she worked 64 hours during the

 two-week pay period reflected in the document (which is the only pay period for which the Court

 has been provided information, although it is not the pay period immediately before the date of

 disability), the employer multiplied the hourly rate by 64, and plaintiff made $2,769.23. So while

 she may have made less for that two week period than she would have made if she worked the

 full 40 hours per week, the document reflects that plaintiff was paid the hourly rate that would

 have yielded $90,000 per year if she did work 40 hours per week. This raises the question: if the

 reduced number of hours reduced plaintiff’s total earnings, did it reduce her “salary”?

       One problem that arises in this case is that there is a disconnect between the definition of

 “Covered Monthly Earnings” in the Policy, which speaks in terms of “monthly salary received,”


3      At the Court’s request, defendants supplemented the evidence with another, clearer
version of this pay stub. Defs. Suppl.
                                                6
 and Mitre’s payroll records, which reflect a bi-weekly payroll system. So must the Court

 calculate the monthly earnings as of August 19 based on full-time work, or based on just the 32

 hours per week? Defendants offer hearsay presented through McGill that someone at Mitre stated

 that prior to August 21, plaintiff was working only 32 hours a week. McGill Aff. ¶ 15. But

 McGill’s affidavit is consistent with plaintiff’s own exhibit, the Deeb memorandum, which raises

 its own hearsay issues but states, “at that time [August 2007] she was scheduled to work 32 hours

 per week,” Ex. 1 to Pl.’s Mot., and the payroll record that reflects that “[f]rom 4/2/07 – 11/4/07

 J. Marcin worked 32 hours per week.” Ex. 4 to Pl.’s Mot. [Dkt. # 49-5] at Marcin2 002115. 4

       Given those difficulties, the Court will turn to the language in the Policy that applies to

 hourly employees. Plaintiff and defendants both seem to be treating plaintiff as someone who

 was paid on an annual, and not an hourly basis, but the record produced by defendants suggests

 that the Court can appropriately utilize the approach set out in the Policy for an hourly employee:

 after all, it says “Pay Rate: $43.27000 Hourly.” Defs.’ Suppl. If the Court were to treat plaintiff

 as an hourly employee, all it would have to do is multiply the hourly rate by the hours worked

 during a “regular work week” and no one, not even Reliance, is claiming that 32 hours was

 plaintiff’s “regular” work week – defendants describe it as her “reduced” work week. See McGill




4       That same payroll record suggests that when plaintiff came back to work, from November
3, 2007 to July 28, 2008, she worked “40 hours per week,” Ex. 4 to Pl.’s Mot. at Marcin2 002115,
which provides further support for the notion that plaintiff’s salary was not reduced to account for
her reduced schedule, but rather that she was simply paid based on the number of hours that she
worked. But the fact that plaintiff worked 40 hours per week during that time period is not wholly
supported by other parts of the record, which make clear that she worked a limited number of hours
between November 12, 2007 and February 8, 2008, and that she stopped working completely on
November 18, 2008. See Marcin I, 895 F. Supp. 2d at 109. Plaintiff points out, however, that
even if she was noted as scheduled to work forty hours per week in that time frame, she was using
sick leave for most of that time. See Ex. 4 to Pl.’s Mot. at Marcin2 002115.

                                                 7
 Aff. ¶ 15. Further, the Personnel Action Notification from before plaintiff was disabled describes

 her as a “Full-Time” employee. Ex. 2 to Pl.’s Mot.

        Therefore, the Court concludes that plaintiff’s rate was $43.27 per hour. Applying the

 calculation set forth in the Policy, one can determine that if plaintiff had worked 40 hours per

 week times 4.333 weeks per month, her salary would equal approximately $7,500 per month or

 $90,000 per year, see Policy at 2.0, and that is the amount to be utilized in the benefits

 calculation. 5

        Once the Covered Monthly Earnings have been ascertained, the Policy sets forth a formula

 to be used to determine the Monthly Benefit:

        BENEFIT AMOUNT: To figure the benefit amount payable:

                  (1) multiply an Insured’s Covered Monthly Earnings by the benefit percentage(s),
                      as shown on the Schedule of Benefits page;
                  (2) take the lesser of the amount:
                         (a) of step (1) above; or
                         (b) the Maximum Monthly Benefit, as shown on the Schedule of Benefits
                             page; and
                  (3) subtract Other Income Benefits, as shown below, from step (2) above.
Policy at 9.0. The relevant benefit percentage is “60% of Covered Monthly Earnings,” and the

maximum monthly benefit is $18,400 for employees hired before January 1, 2002, and $15,000

for employees hired after that date. Id. at 1.0.



5       The Court is mindful that it cannot overturn a benefits decision so long as it is reasonable.
Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1452 (D.C. Cir. 1992); see also Marcin I, 895 F. Supp.
2d at 113. But the Court is not reviewing a benefits “decision.” Reliance has previously rendered
a decision that plaintiff was not entitled to benefits at all, and the Court found that its decision
could not be sustained. Marcin III, 138 F. Supp. 3d at 30. Because Reliance did not make a
further “decision” about the amount of benefits due to plaintiff after the Court’s October 2015
opinion in Marcin III, and the Court is considering only the calculation of the benefits due to
plaintiff, the deferential standard of review does not apply.
                                                     8
        So, turning to the arithmetic: plaintiff’s hourly rate – $43.27 – multiplied by the number

of hours worked in a “regular” work week – 40 – is $1,730.80 per week. That number, multiplied

by 4.333, yields a Covered Monthly Earnings figure of $7,499.56. Taking steps (1) and (2)

together: Covered Monthly Earnings, $7,499.56, multiplied by 60%, equals $4,499.74, which is

less than the Maximum Monthly Benefit.

        The parties agree that Marcin received $2,090 per month in Other Income Benefits. See

Pl.’s Mem. at 3; Defs.’ Mem. at 3. So plaintiff’s monthly benefit amount is $4,499.74 minus

$2,090, or $2,409.74 per month. Multiplied by 24 months, plaintiff will be awarded $57,833.76

in this case.

II.     The Court must remand the matter to Reliance to determine whether plaintiff is
        entitled to more than 24 months of benefits.
        The parties also dispute whether the benefits due to plaintiff terminate after 24 months, or

whether plaintiff is entitled to benefits for a lengthier period of time. Under the terms of the Policy,

an insured is “Totally Disabled” if after a Monthly Benefit has been paid for 24 months, the insured

“cannot perform the material duties of any occupation.” Policy at 2.1. The Policy explains that

“[a]ny occupation is one that the Insured’s education, training or experience will reasonably

allow,” and that the insurance company would consider an insured “Totally Disabled if due to an

Injury or Sickness he or she is capable of performing the material duties on a part-time basis or

part of the material duties on a Full-time basis.” Id.

        In the Report and Recommendation, the Magistrate Judge determined that “the Court must

remand the case to Reliance to determine whether Marcin was Totally Disabled to perform the

material duties of ‘any occupation’” before plaintiff can receive benefits in excess of 24 months.

R. & R. at 9. And though plaintiff opposed another remand in the motion to determine damages,

Pl.’s Mot. at 4, and she argued in a stricken supplemental pleading that she continues to be quite


                                                   9
sick, she did not object to this portion of the Report and Recommendation. Given the absence of

evidence on the record on this issue, the Court agrees with the Magistrate Judge that a limited

remand is appropriate to determine whether plaintiff was totally disabled from any occupation.

       The Policy indicates that the operative date to consider in deciding whether plaintiff was

“Totally Disabled” is 24 months after the Elimination Period ended and the initial payment would

have been due. Policy at 2.1. The Elimination Period is “a period of consecutive days of Total

Disability, as shown on the Schedule of Benefits page, for which no benefit is payable. It begins

on the first day of Total Disability.” Id. at 2.0. The Schedule of Benefits identifies the Elimination

Period as “180 consecutive days of Total Disability or the end of The MITRE Corporation’s

continuation program.” Id. at 1.0. So benefits were due to begin either 180 days after plaintiff

first stopped working on August 20, 2007, or when plaintiff stopped receiving a salary. See Defs.’

Mem. at 3. Plaintiff first went out on disability on August 20, 2007, and she stopped working

completely on February 15, 2008. See Marcin I, 895 F. Supp. 2d at 108, citing AR1 742. So, the

Elimination Period would end on February 16, 2008, which is 180 days after the date when plaintiff

first claimed total disability. See McGill Aff. ¶ 12. 6 The benefits would end 24 months later, on

February 16, 2010.

       “[A]fter a Monthly Benefit has been paid for 24 months,” an insured will be considered

totally disabled if he or she “cannot perform the material duties of any occupation.” Policy at 2.1.

Reliance has never determined whether plaintiff could perform the material duties of any

occupation at that time, see McGill Aff. ¶ 17, and the Court agrees with the Magistrate Judge that



6        Plaintiff seems to argue that her benefits should begin on June 11, 2008, but she offers no
support for that calculation. See Pl.’s Mem. at 3. In light of the undisputed evidence that plaintiff
first claimed disability on August 20, 2007, and that her last day of work was February 15, 2008,
Marcin I, 895 F. Supp. 2d at 108, citing AR1 742, the Court will use those dates to determine when
her benefits should begin and end.
                                                 10
defendants have not waived the issue. R. & R. at 9. Though the Court has presided over this

matter for many years, and would like to see it come to a prompt resolution, the Court cannot

circumvent the necessary procedure and simply declare that plaintiff is due benefits in excess of

24 months at this time.

       So the Court will remand the matter to Reliance for the consideration of whether plaintiff

could perform the material duties of any occupation as of February 16, 2010.

III.   The Court will award attorneys’ fees in the amount of $72,240.
       Plaintiff has also moved for attorneys’ fees. Pl.’s Mem. at 4–8. Under the American Rule,

“the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the

loser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). This default

rule, however, can be overcome by a statute allocating attorneys’ fees. Fleischmann Distilling

Corp. v. Maier Brewing Co., 386 U.S. 714, 717 (1967). Section 502(g)(1) of ERISA provides that

the court has discretion to award “a reasonable attorney’s fee . . . to either party.” 29 U.S.C. §

1132(g)(1). To recover fees, a party must establish “some degree of success on the merits.” Hardt

v. Reliance Standard Life Ins. Co., 560 U.S. 242, 254 (2010), quoting Ruckelshaus v. Sierra Club,

463 U.S. 680, 694 (1983). But the party does not have to be a “prevailing party” to recover

attorney’s fees under Section 502(g)(1) of ERISA. Id. at 252.

       The Court finds that plaintiff is entitled to some award of attorneys’ fees in this case, but it

is concerned by the disparity between the amount to be awarded to plaintiff and the amount of the

fee, and by inadequacy of counsel’s time entries, especially given the amount of unnecessary

surplusage that was contained in a number of plaintiff’s pleadings. So the Court will discount

plaintiff’s counsel’s hours by 40 percent, for a total fee award of $72,240.




                                                 11
       A.       Application of the statutory factors counsel in favor of an award.

       The award of attorneys’ fees is discretionary, and in setting a reasonable award, the Court

“may” consider the factors discussed by the D.C. Circuit in Eddy v. Colonial Life Ins. Co., 59 F.3d

201 (D.C. Cir. 1995). The five factors are:

               (1) the losing party’s culpability or bad faith; (2) the losing party’s ability
               to satisfy a fee award; (3) the deterrent effect of such an award; (4) the value
               of the victory to plan participants and beneficiaries, and the significance of
               the legal issue involved; and (5) the relative merits of the parties’ positions.
Id., quoting Grand Union Co. v. Food Emp’rs Labor Relations Ass’n, 808 F.2d 66, 72 (D.C. Cir.

1987). “The factors are neither exclusive nor quantitative, thereby affording leeway to the district

courts to evaluate and augment them on a case-by-case basis.” Id. at 206.

       In the Report and Recommendation, the Magistrate Judge found that the first factor favored

the defense, because even though the Court found for plaintiff, the Court had previously concluded

that defendant had not acted in bad faith. R. & R. at 10–11, quoting Marcin III, 138 F. Supp. 3d

at 20. The defendants did not dispute the second factor. Id. at 11. The Magistrate Judge found

that the third factor – deterrence – favored plaintiff because an award of attorneys’ fees “will deter

other claim administrators from denying due benefits to their participants and dragging them into

a prolonged litigation.” Id. at 11–12. And, as to the “value of the victory,” the Magistrate Judge

concluded that plaintiff’s cause conferred a benefit “on future plaintiffs by providing guidance for

interpreting Section 502(c) of ERISA,” and so that factor favored plaintiff, as well. Id. at 12–13.

Finally, the Magistrate Judge assessed the relative merits of the parties’ positions, and found that

plaintiff prevailed on the merits, and that her position was “substantially warranted.” Id. at 13.

       Defendants first object to the Magistrate Judge’s analysis of the deterrence factor, arguing

that “[w]hen the Court reviews the relative conduct of the parties . . . it is clear that it is not

Defendants’ conduct that should be deterred.” Defs.’ Objs. at 4. The Court recognizes that


                                                 12
plaintiff’s approach to this litigation has been off the mark at times. But the Court found that the

initial denial of benefits was unsupported because it was accompanied by an unclear and poorly

articulated decision, Marcin I, 895 F. Supp. 2d at 122–23, that defendants’ failure to consider the

Social Security decision was unreasonable, even if the insurer wasn’t ultimately bound by that

decision, Marcin II at 10–14, and that the ultimate decision that plaintiff was capable of full-time

work was not only not supported by the record, but also based on a mischaracterization of the

record. Marcin III, 138 F. Supp. 3d at 30. Each of those decisions required plaintiff to engage in

lengthy litigation to get any recovery at all. So the Court finds that it is important to deter not only

this insurer but other insurers as well, and the record fully supports an award of fees on that basis.

        Defendants also object to the Magistrate Judge’s finding as to the significance of the legal

issues, arguing that the Magistrate Judge’s finding “makes no sense,” and that plaintiff “should

not be rewarded for making legally erroneous arguments that are rejected.” Defs.’ Objs. at 4. It

is true that plaintiff did not prevail on a number of legal theories, but she did raise important issues

about whether the insurer was bound to consider the Social Security determination, and she

prevailed on that issue. See Marcin II at 10–14.

        Finally, defendants object that because the Court never concluded that plaintiff “was totally

disabled as she claimed,” and because she “failed on many issues,” she has not “prevailed on the

merits.” Defs. Objs. at 5. Again, while there were certain issues on which the Court ruled in favor

of defendants, on the most significant issue – concerning whether the denial of benefits was

supported by the record – plaintiff was clearly the victor. See Marcin III, 138 F. Supp. 3d at 30.

        For all of those reasons, defendants’ objections are not persuasive, and the Court finds,

after considering the entire record de novo, that the statutory factors favor an award of at least

some attorneys’ fees in this case.



                                                  13
       B.      Because of the lack of specificity in plaintiff’s counsel’s billing records, the
               Court will reduce the award of attorneys’ fees to $72,240.
       Having found that plaintiff is entitled to an award of attorneys’ fees, the Magistrate Judge

then considered what amount would be appropriate. The Magistrate Judge reviewed all of

plaintiff’s counsel’s billing records, and defendants’ objections to the reasonableness of the hours

expended, and found that much of the claimed fee was unreasonable, either because plaintiff did

not prevail on issues on which she sought fees, see R. & R. at 15–18, or because the entries were

incorrect. Id. at 18–19. In those instances, the Magistrate Judge removed the hours from the

calculation. Id. at 15–20. The Magistrate Judge also found that plaintiff’s counsel’s “invoice is

replete with . . . vague, inadequate entries,” and applied an across-the-board reduction of 10

percent of the hours expended to account for those inadequacies. Id. at 21.

       Defendants do not object to the Magistrate Judge’s exclusions of certain of plaintiff’s

claimed hours. Defs.’ Objs. at 5 (“While Defendants can quibble about the amount of time spent

on numerous entries, the Recommendation largely, if not sufficiently, accounted for the over-

billing.”). 7 But they contend that a 10 percent reduction is an insufficient sanction, and they argue

that “no fees should have been awarded for the numerous insufficient entries,” or that “a reduction

significantly higher than ten percent should be applied.” Id. at 5–6.

       The Supreme Court explained in Hensley v. Eckerhart, 461 U.S. 424 (1983), that:

               The most useful starting point for determining the amount of a reasonable
               fee is the number of hours reasonably expended on the litigation multiplied
               by a reasonable hourly rate. This calculation provides an objective basis on
               which to make an initial estimate of the value of a lawyer’s services. The
               party seeking an award of fees should submit evidence supporting the hours

7       Plaintiff’s counsel originally indicated that he reasonably expended 297.9 hours on this
matter. Ex. 1 to Pl.’s Reply [Dkt. # 53-1] at 11. The Magistrate Judge deducted 57.1 hours for
matters on which plaintiff’s counsel’s time was unreasonably spent, see R. & R. at 21 n.21, and
plaintiff did not object to this aspect of the Magistrate Judge’s recommendation. So 240.8 hours
remain.


                                                 14
                worked and rates claimed. Where the documentation of hours is
                insufficient, the district court may reduce the amount accordingly.
Id. at 433. The Magistrate Judge found that $500 per hour was a reasonable rate for plaintiff’s

counsel, R. & R. at 15, and neither party objected to that finding, so the Court will adopt it. Plaintiff

did not object to the Magistrate Judge’s conclusion that her counsel’s billing records were

inadequate, and the Court now finds, in an exercise of its discretion, that a reduction of 40 percent

is warranted based on its own review of those records and the pleadings over the course of the

case. Therefore, plaintiff’s counsel will be awarded $72,240 in attorney’s fees. 8

IV.     The applicable post-judgment interest rate is 0.27%.
        Plaintiff contends that the Court should award post-judgment interest from the date that

Marcin III was issued – October 14, 2015 – to present, at the rate of 6 percent. Pl.’s Mem. at 3,

citing D.C. Code. § 28-3302(a). That provision of the D.C. Code indicates that “[t]he rate of

interest in the District upon the loan or forbearance of money, goods, or things in action in the

absence of expressed contract, is 6% per annum.” D.C. Code § 28-3302(a). The Report and

Recommendation adopted plaintiff’s argument without explanation. R. & R. at 22.

        Defendants have since pointed to a federal statute which requires that post-judgment

interest be awarded at a rate set by the Treasury Department. See Defs.’ Objs. at 6, citing 28 U.S.C.

§ 1961(a) (“Interest shall be allowed on any money judgment in a civil case recovered in a district

court. . . . Such interest shall be calculated from the date of the entry of the judgment, at a rate

equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of




8       The Court multiplied the 240.8 hours reasonably expended in this case by 0.60, which
resulted in a total number of hours reasonably expended of 144.48 hours. 144.48 hours multiplied
by $500 per hour yields $72,240.


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Governors of the Federal Reserve System, for the calendar week preceding [] the date of the

judgment.”).

       Plaintiff argues that defendants “are not permitted” to bring this statute to light, since they

already had the opportunity to brief the interest rate before the Magistrate Judge, 9 and because

they have “failed to offer any case support for why this statute should be applicable in the ERISA

setting.” Pl.’s Resp. to Defs.’ Objs. at 5. But plaintiff has also not explained why the D.C. Code

should control in this litigation, which is based on a federal statute – ERISA – and when a federal

statute sets the post-judgment interest rates. 10 So the Court will not adopt the Magistrate Judge’s

recommendation as to the interest rate, and will instead use the federal statute to determine the

post-judgment interest rate.

       The Court’s opinion in Marcin III was issued on October 14, 2015. The rate of interest

“for the calendar week preceding the date of the judgment” was 0.27% for the week ending on

October 9, 2015.      See Selected Interest Rates, Federal Reserve, www.federalreserve.gov/

releases/h15/20151013. So defendant will pay post-judgment interest at the rate of 0.27% per

annum from October 14, 2015 to present.



9       There is authority in this jurisdiction for the proposition that “[i]ssues raised for the first
time in objections to the magistrate judge’s recommendation are deemed waived.” See Klayman
v. Judicial Watch, 628 F. Supp. 2d 84, 95 (D.D.C. 2009), quoting Marshall v. Chater, 75 F.3d
1421, 1426–27 (10th Cir. 1996). But it is not wholly clear that plaintiff raised this “issue” in her
motion. Though she cited the D.C. Code provision and included it as part of her calculation of the
benefits owed to her, Pl.’s Mem. at 3, there was no legal argument presented about why that interest
rate was appropriate. So, though defendants would have been wise to challenge the interest rate
sooner, the Court will not find that they have waived the objection. Moreover, it is incumbent
upon the Court to apply the law when it reviews the Magistrate Judge’s recommendation.

10     Plaintiff might be harkening back to a different time, when the previous version of the
federal statute permitted post-judgment interest “at the rate allowed by state law.” See
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 248 (D.C. Cir. 1987),
quoting 28 U.S.C. § 1961 (1982). But that is not what the statute provides today.


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                                          CONCLUSION

        For the foregoing reasons, the Court finds that plaintiff is entitled to benefits of $2,409.74

per month for the 24 month period between February 16, 2008 and February 16, 2010, or

$57,833.76, plus post-judgment interest at the rate of 0.27 percent per annum from October 14,

2015 to present. But, to determine whether plaintiff is eligible for benefits beyond 24 months, the

Court must remand the matter to Reliance.

        Further, the Court will award plaintiff’s counsel $72,240 in attorneys’ fees for his

successful litigation of this matter.

        A separate order will issue.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: August 4, 2016




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