UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

TIMOTHY PIGFORD e_t al_.,
Plaintiffs,

v. Civil Action No. 97-1978 (PLF)

TOM VILSACK, Secretary,
United States Department of Agriculture,

Defendant.

 

 

CECIL BREWINGTON e_t 1L,
Plaintiffs,

V. Civil Action No. 98-1693 (PLF)

TOM VILSACK, Secretary,
United States Department of Agriculture,

Defendant.

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MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion for attorneys’ fees, costs, and
expenses ﬁled by the law ﬁrm of Cross & Kearney PLLC. The ﬁrm seeks $349,822.09 for work
performed and expenses incurred in connection with Warren Miller’s Track B claim. In
addition, Cross & Kearney requests $25,750.00 for fees incurred by its counsel, David Fierst of
Stein, Mitchell, Muse, Cipollone & Beato, LLP, in the preparation of the fee motion and related
ﬁlings. The United States Department of Agriculture (“USDA”) does not dispute that Mr. Miller

is a prevailing party or that Cross & Keamey’s is entitled to attorneys’ fees. Rather, it argues

that Cross & Kearney’s petition for a fee award should be dismissed as time-barred or, in the
alternative, that the award should (1) be reduced across-the-board by 50% for billing for work on
unsuccessful claims; (2) exclude non~compensable time entries in whole or in part; and (3) not
include as many fees for Cross & Kearney’s counsel in preparing the fee motion and reply.
Upon consideration of counsel’s time records, the parties’ arguments and documentary
submissions, and the relevant legal authorities, the Court will grant Cross & Kearney’s motion in
part and deny it in part. It will award fees and expenses to Cross & Kearney in the amount of
$120,000, and to Stein, Mitchell, Muse, Cipollone & Beato in the amount of $10,000.1

USDA raises very substantial arguments that Cross & Kearney’s motion is time-
barred by statutes, rule, a prior order of this Court, or the equitable doctrine of laches. ﬁee Opp.
at 8-11; Surreply at 3—8. On the merits, it maintains that if fees are awarded, any fee award
should be signiﬁcantly reduced because: (1) Cross & Kearney’s time sheets are unreliable;
(2) Mr. Miller prevailed on less than half of his claims and those which he lost were unrelated to
those which he won; much of the work for which Cross & Kearney seeks fees therefore was
irrelevant; (3) much of the ﬁrm’s work was unproductive or unnecessary; (4) the hours spent
reviewing ﬁnancial and farm records were excessive; (5) the time spent meeting and
communicating with Mr. Miller was excessive; (6) the eighty-two hours spent by a paralegal

reconstructing and reviewing time sheets was excessive; (7) the time spent preparing for the

1 Relevant papers reviewed by the Court with respect to this matter include the

following, for which docket entries refer to Civil Action No. 97-1978: Motion of Cross &
Kearney PLLC for Attorneys’ Fees and Expenses (“Mot”) [Dkt No. 1961]; Defendant’s Motion
to Dismiss Petition of Cross & Kearney PLLC for Attorneys’ Fees and Expenses (“Opp”) [Dkt
No. 1975]; Reply of Cross & Kearney PLLC to Opposition to Motion for Attorneys’ Fees and
Expenses (“Reply”) [Dkt No. 1978]; Defendant’s Combined Reply in Support of His Motion to
Dismiss the Petition for Attorneys’ Fees and Expenses For the Track B Claim of Warren Miller
and Surreply in Opposition to Petition (“Surreply”) [Dkt No. 1989]; Office of the Monitor
Decision Re: Petition of Warren Miller (July 10, 2008); and, Arbitrator’s Decision on
Reexamination Re: Petition of Warren Miller (Nov. 29, 2010).

2

Monitor’s decision and the Arbitrator’s reexamination is non-compensable; (8) a number of
speciﬁc time entries are inﬂated; (9) the time spent by Cross & Kearney for clerical work
performed by attorneys and paralegals is non-compensable; and (10) the $550 hourly rate for
preparation of the fee petition and the reply should be reduced to the ILffey rate of a junior
attorney—$255 per hour—to better reﬂect the lack of complexity involved in fee litigation. See
Opp. at 8—23; Surreply at 8-18.

USDA’s bottom line is that, if the Court does not reject the fee petition on
timeliness grounds, the fee awarded to Cross & Kearney should not exceed $93,161.98, and the
fee awarded to its counsel should be substantially less than the $25,750 requested. ﬁe Opp. at
22-23; Surreply at 18.

For now, the Court will skip over the timeliness issues USDA has raised. Instead,
having reviewed the time records submitted, and having carefully considered the submissions of
counsel and the relevant case law, the Court concludes that a fair result under all the
circumstances would be to award Cross & Kearney $120,000 in attorneys’ fees, costs, and
expenses and to award its counsel, Stein, Mitchell, Muse, Cipollone & Beato, $10,000 in
attorneys’ fees. The Court therefore will grant Cross & Kearney’s motion in part and give the
parties thirty (30) days to ﬁle a stipulation agreeing to this determination as a ﬁnal decision with
no right of appeal by any party. Alternately, absent such an agreement, either side may ﬁle a
motion to reopen or for reconsideration —— which the Court will grant, after which it will ﬁrst
consider USDA’s timeliness arguments and then, if appropriate, decide whether on the merits

movant has justiﬁed an award larger than $120,000.

Accordingly, it is hereby

ORDERED that the Motion of Cross & Kearney PLLC for Attorneys’ Fees and
Expenses [Dkt No. 1961] is GRANTED in part and DENIED in part; it is

FURTHER ORDERED that the parties shall have thirty (30) days up to and
including October 30, 2015 to submit a stipulation agreeing to this determination as a ﬁnal
decision with no right of appeal by any party, or, alternatively, a motion to reopen or reconsider;
and it is

FURTHER ORDERED that, within thirty (30) days of the approval of the
stipulation, the United States Department of Agriculture shall pay Cross & Kearney PLLC
$120,000 in attorneys’ fees, costs, and expenses, and Stein, Mitchell, Muse, Cipollone & Beato,

LLP $10,000 in attorneys’ fees.

 

SO ORDERED
PAUL L. FRIEDMAN
DATE: 7 i 3 o i ' I United States District Court

