Fonville v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________
)
CHARLES L. FONVILLE, )
)
Plaintiff, )
) Case No. 1:02-CV-02353 (EGS)
v. )
)
DISTRICT OF COLUMBIA )
)
Defendant. )
________________________________)

MEMORANDUM OPINION

Plaintiff Charles Fonville brings this action against the

District of Columbia (“District”) pursuant to the Fifth

Amendment of the Constitution and 42 U.S.C. § 1983. Plaintiff

alleges that he was deprived of his constitutionally protected

property interests when he was demoted from the rank of

Commander to Captain in the Metropolitan Police Department

(“MPD”) without notice or a hearing. He also claims that

certain statements made by the MPD in connection with his

demotion damaged his professional reputation, depriving him of a

liberty interest. Pending before the Court are Defendant’s

renewed motion for summary judgment, Plaintiff’s renewed cross

motion for partial summary judgment, and Plaintiff’s petition

for attorney fees based on the Court’s previous award of

sanctions against the District for discovery violations.
 This case has a long history for a number of reasons,

including discovery abuses by the District. Most recently,

however, the case was stayed to await the outcome of two cases

pending before the District of Columbia Court of Appeals. These

cases squarely addressed a central issue in this case: whether a

Commander in the MPD has a property interest in his position, or

whether he may be demoted to the rank of Captain at the pleasure

of the Chief of Police. See Hoey v. D.C. Office of Employee

Appeals and D.C. Metropolitan Police Department, No. 10-CV-963,

and Burton v. D.C. Office of Employee Appeals, No. 09-CV-1493.

Recognizing the high degree of deference this Court gives to the

District of Columbia Court of Appeals to determine matters of

local law, see, e.g., Pernell v. Southall Realty, 416 U.S. 363,

368 (1974), the Court stayed the proceedings in this case until

the appeals were finally exhausted in 2012.

The Court of Appeals found that Commanders and other MPD

officers above the rank of Captain do not have a property

interest in their positions, and may therefore be demoted to

Captain without cause, notice, or an opportunity to be heard.

For the reasons set forth below, that decision compels the same

outcome in this case. Thus Defendant’s renewed motion for

summary judgment as to Plaintiff’s property interest claim will

be GRANTED and Plaintiff’s renewed cross motion will be DENIED.

Upon consideration of defendant’s renewed motion for summary

2

judgment on Plaintiff’s liberty interest claim, Plaintiff’s

response, the relevant caselaw and the entire record in this

case, the motion for summary judgment will be GRANTED. Finally,

upon consideration of the motion for attorney fees, the Court

awards Plaintiff fees in the amount of $53,480.04 as sanctions

for the Defendant’s failure to comply with the Court’s discovery

orders.

I. BACKGROUND

Plaintiff Charles Fonville joined the MPD in February 1972.

Compl. ¶ 6. He was promoted to Captain in 1995. Id. On March

7, 1999, then Police Chief Charles Ramsey promoted Plaintiff

directly from Captain to Commander, skipping over the rank of

Inspector. Pl.’s Renewed Combined Opp’n to Def.’s Summ. J. Mot.

and Cross Mot. for Partial Summ. J. (hereinafter “Pl.’s

Opp’n/Cross Mot.”) Ex. 6, Deposition of Charles Fonville

(“Fonville Dep.”) at 60-61 (ECF No. 122). Plaintiff received a

two-grade pay increase to correspond with his two level

promotion in rank. Id.; see also Exs. 18, 21.

Approximately seven months after his promotion, on October

22, 1999, Mr. Fonville was involved in an incident with officers

of the Federal Protective Service (“FPS”) regarding his

illegally parked car. Compl. ¶¶ 8-9. Plaintiff, who was off

duty at the time, was arrested for assaulting a police officer.

Id. ¶¶ 8, 12-15. He was released without charges. Id. ¶¶ 15-

3

16. The MPD Office of Internal Affairs (“IAD”) began an

investigation of the incident on October 25, 1999. As part of

the investigation, Plaintiff gave a transcribed oral statement

regarding the incident. The IAD obtained recorded statements

from several other witnesses as well. Id. ¶ 17. The IAD filed

a report of its investigation on November 10, 1999. Pl.’s

Opp’n/Cross Mot. Ex. 8. IAD found there was insufficient

evidence to sustain charges of “assault” and “conduct unbecoming

of an MPD officer,” against Plaintiff, but found that he

violated District of Columbia Municipal Regulations for failing

to have his service weapon and badge in his possession while in

the District of Columbia. Id. The IAD recommended that

Plaintiff be “referred to his commanding officer for

administrative action.” Id.

On or about November 29, 1999, Chief Ramsey summoned Mr.

Fonville to his office. Chief Ramsey said he had reviewed the

file regarding the October 22 incident, and felt that Mr.

Fonville’s actions were inappropriate. Fonville Dep. 93. Chief

Ramsey then told Plaintiff he was being demoted to the rank of

Captain. Compl. ¶ 19. On his way out of the meeting, Mr.

Fonville was given a white envelope containing a Captain’s

badge, cap plate and rank insignia. Id. His demotion was

effective as of December 5, 1999. Pl.’s Opp’n/Cross Mot. Ex.

4

18. Plaintiff worked as a Captain in the MPD until he retired

from MPD in March, 2000. Compl. ¶¶ 19-21.

The incident regarding Plaintiff’s encounter with the FPS,

and his subsequent demotion, was reported in The Washington Post

and The Washington Times on November 30, 1999. Pl.’s

Opp’n/Cross Mot. Ex. 11. The articles attributed comments to

Chief Ramsey that Plaintiff had been demoted because he engaged

in “unacceptable behavior” in connection with the incident,

which “was not consistent with what I expect from a command

member of my staff.” Id. Chief Ramsey does not deny making

these statements to the press. Id. at Ex. 5, Dep. of Charles

Ramsey (“Ramsey Dep.”) at 168-74.

Plaintiff filed suit in this Court in November 2002. Count

One of his Complaint alleges that the District deprived him of

his property interest in the Commander position, in violation of

the Fifth Amendment of the Constitution and 42 U.S.C. § 1983, by

demoting him without due process of law. Count Two alleges that

the District deprived him of his liberty interest in pursuing

his chosen profession by defaming him in the course of demoting

him from Commander to Captain, also in violation of the Fifth

Amendment and section 1983. The parties engaged in discovery

until December 2005, when the District moved for summary

judgment. Def.’s First Mot. for Summ. J. (ECF No. 41). On

August 22, 2006, the Court denied the motion for summary

5

judgment. The Court further found that Plaintiff had a property

interest in his Commander position and, thus, could not be

demoted without due process. Fonville v. Dist. of Columbia, 448

F. Supp. 2d 21, 23 (D.D.C. 2006). A jury trial was scheduled

for February 2008; however, in January 2008, over two years

after the close of discovery, the District produced supplemental

discovery and argued that it should be permitted to file a new

motion for summary judgment based in part on the newly-disclosed

evidence. Def.’s Proposal for Proceeding (ECF No. 77). During

the same time period, the District brought to the Court’s

attention authority from other district judges and argued for

the first time that Plaintiff failed to exhaust his

administrative remedies. See, e.g., Def.’s Notices of Suppl.

Auth. (ECF Nos. 89, 90) (citing Washington v. District of

Columbia, 538 F. Supp. 2d 269 (D.D.C. 2008); Hoey v. District of

Columbia, 540 F. Supp. 2d 218 (D.D.C. 2008)). Plaintiff, for his

part, moved for sanctions based on discovery abuses by the

District. Pl.’s Mot. for Sanctions (ECF. No. 82).

In April 2008, the Court denied Defendant’s motion to file

a new summary judgment motion based on the newly-discovered

evidence, granted in part Plaintiff’s motion for discovery

sanctions, and ordered the parties to brief two issues: the

appropriate amount of attorneys’ fees to be awarded Plaintiff in

view of his successful motion for sanctions, and the exhaustion

6

issue.1 Minute Order, Apr. 7, 2008. The supplemental briefing

on the exhaustion issue was informed in part by submissions of

supplemental authority regarding other cases, similar to this

one, in which MPD Commanders challenged their demotions to

Captains without due process of law in the District’s

administrative agencies and state courts. See, e.g., Def.’s

Notices of Suppl. Auth. (ECF Nos. 112, 114). In May 2009, the

Court denied defendant’s motion for summary judgment on

exhaustion grounds without prejudice and, based on the parties’

representations that they wished to file yet more dispositive

motions, set a briefing schedule for renewed cross motions for

summary judgment. Minute Order May 14, 2009. Meanwhile, the

parties continued to file notices of supplemental authority as

other cases filed by other demoted Commanders proceeded through

the District’s judicial system. See, e.g., Parties’ Notices of

Suppl. Auth. (ECF Nos. 136, 137, 138, 139).

In 2010, the District moved for a stay of proceedings until

two of these other cases, Hoey and Burton, were finally resolved

by the District of Columbia Court of Appeals. The District

acknowledged that the governing statute had changed between Mr.

1
The parties fully briefed Plaintiff’s motion for
attorney’s fees, and the Court granted the motion, but deferred
a determination on the amount of fees. The fees issue is
addressed at Section III.C, infra.

7

Fonville’s demotion in 1999 and Mr. Hoey and Mr. Burton’s

demotions in 2007 and 2008. However, the District argued that

the changes were irrelevant to the question before the Court: in

all relevant respects, the District argued, the statutory

provisions were identical. Def.’s Reply in Support of Mot. to

Stay at 2-5 (ECF No. 144). Therefore, the District argued the

District of Columbia Court of Appeals decisions would be

“critical to the proper disposition of this case.” Id. at 7.

This Court agreed that the case should be stayed, finding

“striking similarities between the governing law in this case

and in Hoey and Burton,” and in view of the high degree of

deference the District of Columbia Court of Appeals is entitled

to from the federal courts in determining matters of local law.

Mem. Order Staying Case, Feb. 28, 2011 (ECF No. 147).

The District of Columbia Court of Appeals issued a single

decision resolving the Hoey and Burton cases on November 3,

2011. After analyzing the relevant provisions of the D.C. Code,

the legislative history, and the regulations, the Court of

Appeals found that Mr. Hoey and Mr. Burton had no property

interest in their Commander positions, and even though they were

Career Service employees, could be demoted to Captain without

cause and without notice or a hearing. Burton v. Office of

Employee Appeals, et al., and Hoey v. Office of Employee

Appeals, et al., 30 A.3d 789 (D.C. 2011) (hereinafter “Burton”).

8

The appeals became final in February 2012, and in late 2012, the

Court granted the parties leave to file supplemental memoranda

in support of their motions for summary judgment. The motions

are now ripe for decision by the Court.

II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is appropriate when the moving party

demonstrates that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986); Moore v. Hartman, 571

F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of

material fact, the nonmoving party must demonstrate—through

affidavits or other competent evidence, Fed. R. Civ. P.

56(c)(1),—that the quantum of evidence “is such that a

reasonable jury could return a verdict for the nonmoving party.”

Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting

Anderson, 477 U.S. at 248). In ruling on a motion for summary

judgment, the Court views all facts in the light most favorable

to the nonmoving party. Keyes v. District of Columbia, 372 F.3d

434, 436 (D.C. Cir. 2004). A nonmoving party, however, must

nevertheless provide more than “a scintilla of evidence” in

support of its position, and conclusory, speculative, or “not

9

significantly probative” evidence is insufficient to survive

summary judgment. See Anderson, 477 U.S. at 249.

B. Motion for Reconsideration

“[T]here is no Federal Rule of Civil Procedure that

expressly addresses motions for reconsideration.” Clark v.

Feder, Semo & Bard, P.C., 736 F. Supp. 2d 222, 224 (D.D.C.

2007). Because the Court’s Order of August 22, 2006 denying the

District’s motion for summary judgment is interlocutory,

however, the District’s renewed motion for summary judgment can

properly be characterized as a motion for reconsideration under

Rule 54. See Musick v. Salazar, 839 F. Supp. 2d 86, 93 (D.D.C.

2012); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other

decision . . . that adjudicates fewer than all the claims . . .

may be revised at any time before the entry of a judgment

adjudicating all the claims[.]”). “The Court has broad

discretion to hear a motion for reconsideration brought under

Rule 54(b), . . . and reconsideration is appropriate as justice

requires[.]" Clark, 736 F. Supp. 2d at 225 (quotations and

citations omitted).

III. DISCUSSION

A. The Burton Decision Is Controlling As to Count One of
the Complaint; Accordingly, Mr. Fonville Has No
Property Interest in His Commander Position
The District argues that the Burton decision changed the

controlling law since the Court denied its motion for summary

10

judgment on Count One of the Complaint in 2006, and therefore

justice requires that the Court reconsider that decision.

Def.’s Suppl. Mem. in Support of Summ. J. (ECF No. 155). The

Court agrees, and therefore grants the District’s motion for

reconsideration.

In Burton, the Court of Appeals traced the history of the

statutory provisions providing the District’s Commissioner

(later called Mayor) or the Chief of Police,2 with the authority

to unilaterally return certain high-ranking police officers to

the rank of Captain. Burton, 30 A.3d at 792-94. In the 1970s,

D.C. Code § 4-103 provided, in relevant part:

[T]hat the assistant superintendents and inspectors shall
be selected from among the captains of the force and shall
be returned to the rank of captain when the Commissioner so
determines.
D.C. Code § 4-103 (1973).
Likewise, D.C. Code § 4-104, which was in effect when Plaintiff

was demoted, provided in pertinent part:

[T]hat the Assistant and Deputy Chiefs of Police and
Inspectors shall be selected from among the captains of the
force and shall be returned to the rank of captain when the
Mayor so determines.3

2
In an order issued on May 9, 1997, the Mayor delegated his
personnel authority under these provisions to the Chief of
Police. Burton, 30 A.3d at 792 n.5 (citing Mayor’s Order 97-88,
44 D.C. Reg. 2959-60 (May 16, 1997)).
3
This section was recodified in 2001 as § 5-105. Burton, 30 A.3d
at 793, n.8. Likewise, § 1-633.3(1)(B), discussed infra, was
recodified in 2001 as § 1-632.03(a)(1)(B). For the purposes of
11

D.C. Code § 4-104 (1981).
As the Burton court observed, these provisions must be read

in tandem with the Comprehensive Merit Personnel Act (“CMPA”),

which was enacted in 1978 and provides many Career Service

employees with job related protections, including protection

from demotion without due process. Burton, 30 A.3d at 791-92;

see also D.C. Code § 1-616.52(b). When the CMPA was enacted, it

curtailed the authority of the Mayor and the Chief of Police to

return high ranking officials to Captain at will “with respect

to officers hired after the CMPA went into effect.” Burton, 30

A.3d at 793 (emphasis added) (citing D.C. Code § 1-633.3(1)(B)

(1981), enacted as part of the CMPA, which provided that § 4-103

and § 4-104 “shall not apply to police officers . . . appointed

after the date that this chapter becomes effective”). The Court

of Appeals emphasized this distinction between police officers

hired prior to the enactment of the CMPA and those hired

subsequent to its enactment by repeating the point as follows:

“For the next twenty years [after the CMPA was enacted], no

statute authorized the Mayor or the Chief of Police to return

police officials above Captain (and hired after the CMPA went

into effect) to the rank of Captain without cause.” Burton, 30

A.3d at 793 (emphasis added). “D.C. Code § 4-104 (1981), []

this decision, the relevant Code sections are the section
numbers in effect when Plaintiff was demoted in 1999.
12

pursuant to § 1-633.3(1)(B), did not apply to officers hired

after the CMPA’s effective date.” Id. (emphasis added). Of

critical importance in this case, Mr. Fonville was hired on

February 14, 1972, several years before the CMPA was enacted.

Section 4-103, later § 4-104, was therefore not repealed by the

CMPA as to him.

The Burton court also held, as a matter of law, that the

language of § 4-1044 applies to the position of Commander, 30

A.3d at 797, notwithstanding the fact that “Commander” does not

appear in the statute’s list of positions (Assistant Chiefs,

Deputy Chiefs, and Inspectors) whose occupants may be summarily

returned to the rank of Captain. See D.C. Code § 4-104 (1981).

The Court of Appeals explained:

The titles listed have changed over the years as positions
were renamed and new ranks were added, but the provision
appears to have consistently covered those positions above
the rank of Captain. . . . It is uncontested that
Assistant Chiefs outrank Commanders, who, in turn, outrank
Inspectors. It would have been illogical for the [D.C.]
Council to provide the Mayor or his delegee with the
authority to return Assistant Chiefs and Inspectors, the
ranks immediately above and below Commanders, to the rank
of Captain, but not to grant that same authority with
respect to Commanders. The better interpretation is that
[the successor, and identical, provision to § 4-104]
applies alike to Inspectors, Commanders, and Assistant
Chiefs of Police.

4
The Court of Appeals interpreted the successor provisions to §
4-104, which the Court noted were “identical” to that provision
in all relevant respects, and further noted that the substance
of the provision had “historical roots going back to 1919.” 30
A.3d at 797.
13

Burton, 30 A.3d at 797-98 (internal citations omitted).

Mr. Fonville argues that Burton does not apply to his case

for three principal reasons: first, because it interpreted the

successor provisions to § 4-104, not § 4-104; second, because

the decision is “fatally flawed;” and third, because Mr.

Fonville’s Commander position was different than Mr. Burton and

Mr. Hoey’s Commander positions, and the factual differences

compel a different outcome in this case. See Pl.’s Suppl. Brief

(ECF. No. 156). Unfortunately for Mr. Fonville, he cannot avoid

the dispositive impact of Burton.

Plaintiff first argues that Burton does not apply to him

because Mr. Burton and Mr. Hoey were demoted pursuant to D.C.

Code § 1-608.01(d-1), a successor statute to § 4-104. This

argument is without merit. As discussed supra at note 4, the

statutes are identical in all relevant respects. Moreover, the

Burton court specifically addressed the relationship between §

4-104 and the CMPA, and found the CMPA’s protections do not

apply to officers hired before its effective date with respect

to § 4-104. Applying Burton to the facts of this case compels

the conclusion that when Mr. Fonville was demoted in 1999, he

was not protected under the CMPA because he had been hired as a

police officer before it was enacted. See Burton, 30 A.3d at

793-94.

14

 Mr. Fonville’s claim that Burton was wrongly decided, and

therefore should not be followed by this Court, Pl.’s Suppl.

Brief at 5-8, is also not persuasive. Federal courts owe

particular deference to interpretations of state law announced

by the highest court of a state. “A State’s highest court is

unquestionably the ultimate exposito[r] of state law.” Riley v.

Kennedy, 553 U.S. 406, 425 (2008) (citation and internal

quotation marks omitted); see also Minn. v. Clover Leaf Creamery

Co., 449 U.S. 456, 485 n.9 (1981) (Stevens, J. dissenting)

(“This Court will defer to the interpretation of state law

announced by the highest court of a State even where a more

reasonable interpretation is apparent, a contrary conclusion

might save a state statute from constitutional invalidity, or it

appears that the state court has attributed an unusually

inflexible command to its legislature.”) (citations omitted).

Nothing in Plaintiff’s submissions provides a basis for the

Court to depart from this bedrock principle of federalism.

Plaintiff’s third argument – that his Commander position

was different than Burton’s and Hoey’s Commander positions, and

the factual differences permit this Court’s 2006 decision to

survive Burton - is also unpersuasive. This Court’s 2006

decision was a very narrow one: the old Deputy Chief position

listed in the text of § 4-104 was not “equivalent” to Mr.

Fonville’s specific Commander position, and therefore § 4-104

15

could not be read to encompass him. Fonville, 448 F. Supp. 2d

at 27-28. The Burton decision is much broader. The Court of

Appeals examined the legislative history and policy

determinations underlying § 4-104, its predecessors and its

successors. See Burton, 30 A.3d at 791-94, 797-98. The Burton

court acknowledged that neither § 4-104, nor its predecessors or

successors included Commanders in the list of positions from

which officers could be demoted at will. The court did not find

that fact dispositive, however. “The literal words of a

statute, however, are not the sole index to legislative intent,

but rather, are to be read in the light of the statute taken as

a whole, and are to be given a sensible construction and one

that would not work an obvious injustice. . . . The statutory

meaning of a term must be derived from a consideration of the

entire enactment against the backdrop of its policies and

objectives.” Id. at 792 (internal quotation marks and citations

omitted). After careful review, the Court of Appeals determined

that application of the statute did not hinge on whether

specific duties associated with particular titles or ranks

remained constant over time. Rather, the Court of Appeals

concluded that although “the titles [] changed over the years .

. . and new ranks were added,” § 4-104, its predecessors and its

successors “consistently covered those positions above the rank

of Captain.” Id. at 797. The Burton court’s decision therefore

16

clearly extends to Mr. Fonville’s former position as Commander,

and controls the outcome in this case.

Burton conclusively establishes that, as a matter of law,

§ 4-104 applies to all Commander positions. It is undisputed

that Mr. Fonville was promoted from Captain to Commander, which

was above the Captain and the Inspector positions both in rank

and in pay. See Fonville Dep. at 60-61; see also Pl.’s

Opp’n/Cross Mot. at Ex. 18. Section 4-104, with its provision

authorizing the Chief to return high-ranking members of the

force, including Commanders, to the rank of Captain without

notice or cause, therefore applied to Plaintiff throughout his

tenure with MPD. Accordingly, the District’s motion for summary

judgment on Count One of the Complaint is GRANTED, and

Plaintiff’s motion for summary judgment on Count One is DENIED.

B. Plaintiff’s Reputation-Plus Claim

The District also asks the Court to reconsider its 2006

decision denying the District’s motion for summary judgment on

the Plaintiff’s liberty interest claim. See Def.’s Renewed

Summ. J. Mot. 24-29 (ECF No. 119); Def.’s Reply at 1-2, 23-33

(ECF No. 126). In its previous order, the Court found that

there were genuine issues of material fact in dispute. See

Fonville, 448 F. Supp. 2d at 28-29. Upon further consideration,

and having reviewed again the entire record in the case, the

Court concludes that there are in fact no genuine issues of

17

material fact in dispute. The Court will therefore grant the

District’s motion for reconsideration and consider again its

motion for summary judgment.5

A claim for deprivation of a liberty interest without due

process based on allegedly defamatory statements of government

officials in connection with a demotion may proceed on one of

two theories: a “reputation-plus” claim or a “stigma or

disability” claim. See O’Donnell v. Barry, 148 F.3d 1126, 1140

(D.C. Cir. 1998). Plaintiff only proceeds on the reputation-

plus theory. Pl.’s Opp’n/Cross Mot. at 27. A reputation-plus

claim requires “the conjunction of official defamation and

adverse employment action . . . [including] a demotion in rank

and pay.” O’Donnell, 148 F.3d at 140.

Plaintiff claims that Chief Ramsey’s statements to the

Washington Post and Washington Times regarding his demotion were

“defamatory,” they “deprived Plaintiff the liberty to pursue his

chosen profession,” and they resulted in “loss of income and

other employment benefits and damage to his professional

reputation.” Compl. ¶¶ 30-31. The District makes two principal

5
Plaintiff argues that the Court should be bound by the law of
the case doctrine, and therefore should not revisit its 2006
determination regarding his liberty interest claim. Pl.’s
Opp’n/Cross Mot. at 25-27 (ECF Nos. 122-23). Based on the
precedent of this Circuit, however, “[i]nterlocutory orders are
not subject to the law of the case doctrine and may always be
reconsidered prior to final judgment.” Langevine v. Dist. of
Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997).
18

arguments in its renewed summary judgment motion. First, it

argues that Chief Ramsey’s statements were not false and

therefore do not constitute defamation as a matter of law.

Second, the District argues that even if the statements were

sufficient to support a common law defamation claim, they did

not carry “the sort of opprobrium sufficient to constitute a

deprivation of liberty.” Harrison v. Bowen, 815 F.2d 1505, 1518

(D.C. Cir. 1987); see also Def.’s Renewed Summ. J. Mot. at 26,

28, Def.’s Reply at 24-29. The Court considered only the second

of these arguments in its 2006 memorandum opinion denying

summary judgment; it considers both now.

1. Plaintiff Does Not Show Chief Judge Ramsey’s
Statements Are False
To prevail on his defamation claim under District of

Columbia law, Mr. Fonville must show, first, that Chief Ramsey

made a false statement. Oparaugo v. Watts, 884 A.2d 63, 76

(D.C. 2005). “The burden of proving falsity rests squarely on

the plaintiff. He or she must demonstrate either that the

statement is factual and untrue, or an opinion based implicitly

on facts that are untrue.” Lane v. Random House, 985 F. Supp.

141, 151 (D.D.C. 1995); see also Rosen v. Am. Israel Pub.

Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012) (“statements

of opinion can be actionable if they imply a provably false

fact, or rely on stated facts that are provably false.”)

19

(citations omitted). “Truth is an absolute defense to [a]

defamation claim[], and a defendant may attack the falsity prong

of a plaintiff’s claim by demonstrating the substantial truth of

the allegedly defamatory statement.” Edmond v. Am. Educ.

Servs., 823 F. Supp. 2d 28, 35 (D.D.C. 2011) (citations

omitted). “‘Substantially true’ means that the ‘gist’ of the

statement is true or that the statement is substantially true,

as it would be understood by its intended audience.” Benic v.

Reuters Am., Inc., 357 F. Supp. 2d 216, 221 (D.D.C. 2004)

(citations omitted). “In other words, literal truth is not

required, and a showing of the truth of the ‘gist’ or ‘sting’ of

the allegedly defamatory imputation is sufficient.” Jolevare v.

Alpha Kappa Alpha Sorority, Inc., 521 F. Supp. 2d 1, 13-14

(D.D.C. 2007) (quotation marks and citations omitted).

Chief Ramsey’s statements at issue are that Plaintiff

engaged in “unacceptable behavior,” which “was not consistent

with what [he] expected from a command member of [his] staff.”

Pl.’s Opp’n/Cross Mot. Ex. 11. Plaintiff claims that these

statements “were based on an incomplete picture of the facts or

an erroneous assessment of the facts.” Pl.’s Opp’n/Cross Mot.

at 30 (citing Ex. 11). The crux of Plaintiff’s argument is that

IAD did not find that his actions and conduct were “unbecoming

of an MPD officer,” and therefore Chief Ramey’s statement that

he engaged in unacceptable behavior implies a false assertion of

20

fact. Id. Plaintiff misstates Chief Ramsey. The Chief did not

say that Plaintiff’s conduct was unbecoming of a police officer;

he said his conduct during the incident was “unacceptable” and

“not consistent with what I expect from a command member of my

staff.” Pl.’s Opp’n/Cross Mot. Ex. 11 (emphasis added).

Accordingly, Plaintiff must demonstrate that this statement of

opinion implies a provably false assertion of fact. He has not

done so.

Mr. Fonville does not dispute that Chief Ramsey learned of

his conduct as a result of the IAD investigation, and relied on

it in making his determination to demote Plaintiff. Def.’s SMF,

¶¶ 6, 8 (ECF. No. 119); Pl.’s SMF ¶ 12 (Doc. 123); Def.’s Suppl.

SMF ¶¶ 8, 10 (ECF. No. 126). He does not dispute that the IAD

conducted a thorough investigation of the facts and

circumstances; indeed, Plaintiff relies on that report in

arguing that he should not have been demoted. Pl.’s Opp’n/Cross

Mot. at 30-31.

The IAD report concludes that Plaintiff precipitated

contact with the FPS officer by parking illegally. Pl.’s

Opp’n/Cross Mot. Ex. 8 (hereinafter “IAD Report”). The report

also concludes that Plaintiff failed to carry his service weapon

and badge in his possession while in the District, in violation

of the Municipal Regulations. Id. With respect to the incident

itself, the IAD report contains four statements from

21

eyewitnesses to the incident. It is highly significant that

none of the witnesses were participants in the incident, nor

were they officers of the MPD or the FPS, nor did they know

either Mr. Fonville or the FPS officer involved. While the

witnesses did not describe Plaintiff’s behavior as criminal,

each and every one made at least one negative comment regarding

Plaintiff’s conduct.

ATF Special Agent Chris Pelletiere stated that Plaintiff

“would not comply with any of those instructions” issued by the

FPS officer, and described Plaintiff’s actions as

“argumentative,” and “belligerent.” Id. at 4; see also IAD

Report Attachments, Pl.’s Opp’n/Cross Mot. Ex. 14 (ECF. No. 122-

14). ATF Special Agent Lewis Raden described Plaintiff’s

conduct as “resisting” and “not cooperating” with the FPS

officer’s commands. IAD Report at 4; see also IAD Report

Attachments, Pl.’s Opp’n/Cross Mot. Ex. 15 (ECF No. 122-15).

Retired ATF Special Agent Willie Ellison stated that Plaintiff’s

actions were “not what he would have deemed appropriate for a

commander in the police department.” Id. Finally, Special

Police Officer John Robinson stated that after the initial

interaction between Plaintiff and the FPS officer, he saw

Plaintiff “attempt to pull away, and the FPS officer stop[ped]

him by use of siren and lights . . . Commander Fonville exit[ed]

his car very irate . . .” IAD Report at 5-6; see also IAD

22

Report Attachments, Pl.’s Opp’n/Cross Mot. at Ex. 15 (ECF No.

122-15).

In his deposition, Chief Ramsey testified that that these

statements were the basis for his opinion concerning the

Plaintiff’s conduct:

Q: So the allegations of assault [that Plaintiff assaulted
the FPS officer] were not a critical component in your decision
to demote Mr. Fonville?
A: The allegation was just one part of the entire scenario
that was being painted by the officer and the witnesses that
were present that day.
Q: And my question to you is how did that figure into your
decision to demote him? Did you consider that to be one of the
critical parts or not?
[OBJECTIONS]
A: No.
Q: What was the most critical component in your mind of the
incident that led you to demote him?
[OBJECTIONS]
A: The overall conduct and the way he dealt with the
situation with the officer in a confrontational manner, which I
thought was uncalled for.
Q: So, to you it wouldn’t matter if [Plaintiff] was
wrongfully stopped [by the FPS officer]?
[OBJECTIONS]
A: I believe the issue again of whether or not the stop was
proper or whether or not the officer had the legal authority to
issue a citation is secondary to the conduct displayed by Mr.
Fonville at the time. I think he exercised poor judgment and
poor self-control in the way in which he conducted himself in a
situation like that . . . .
Q: Did you consider the fact that [IAD] did not find that
he had engaged in conduct unbecoming?

23

 A: [IAD] was conducting an investigation into
allegations, specific allegations, of misconduct. I certainly
read that report. I was looking at not only that, but with the
overall conduct and behavior of a member of my Command staff and
found that I didn’t want him serving any longer in that
capacity.
Ramsey Dep. 155-158 (ECF No. 127-4).

In sum, it is undisputed that Plaintiff was demoted after

Chief Ramsey determined his conduct during the incident was not

consistent with his expectations of a command member of his

staff. As set forth in Section III.A above, Chief Ramsey had

complete discretion to demote Plaintiff in accordance with the

D.C. Code. Plaintiff has failed to demonstrate that any of the

statements Chief Ramsey relied upon were verifiably false, or

that they did not support his conclusion that Mr. Fonville

exhibited behavior that was not consistent with his expectations

of his command staff. Plaintiff’s own uncorroborated testimony

about the incident, in which he denies behaving in a

confrontational manner or exhibiting poor judgment, is not

enough to create a genuine issue of fact, particularly in light

of the contrary testimony of all four eyewitnesses interviewed

by the IAD. See Bowyer v. Dist. of Columbia, 910 F. Supp. 2d

173, 190 (D.D.C. 2012) (where non-moving parties rely almost

entirely upon their own uncorroborated statements at the summary

judgment stage, it may be “insufficient to establish a triable

issue of fact-at least where the nature of the purported factual

24

dispute reasonably suggests that corroborating evidence should

be available.”) (internal quotations omitted). Accordingly,

Plaintiff has not raised a genuine issue of material fact as to

the falsity element of his defamation claim and summary judgment

is therefore appropriate. See Jolevare, 521 F. Supp. 2d at 14

(granting summary judgment for defendant on defamation claim

where plaintiffs did not “raise[] a genuine issue of material

fact as to the falsity of the organization’s publication of

their suspensions for engaging in what the sorority properly

concluded amounted to hazing.”).

2. Even if The Statements Were Defamatory, They Do Not
Violate Plaintiff’s Liberty Interests
Even assuming Chief Ramsey’s statements were false and

defamatory, Mr. Fonville’s liberty interest claim cannot succeed

because the statements do not carry “the sort of opprobrium

sufficient to constitute a deprivation of liberty.” Harrison,

815 F.2d at 1518. Summary judgment is therefore warranted for

this additional reason.

In this Circuit, a reputation-plus claim cannot be based on

defamation related to a plaintiff’s job performance. Rather, to

implicate constitutional interests under the reputation-plus

theory, the government’s defamation must “call into serious

question those personal characteristics that are central or

enduring in nature,” such as “accusations of dishonesty, the

25

commission of a serious felony, manifest racism, serious mental

illness, or a lack of intellectual ability.” Alexis v. Dist. of

Columbia, 44 F. Supp. 2d 331, 339 (D.D.C. 1999); see also

Mazaleski v. Truesdell, 562 F.2d 701, 714 (D.C. Cir. 1977). In

the 2006 opinion, the Court concluded that Chief Ramsey’s

statements suggest Plaintiff was “‘inherently incapable’ of

performing his duties” and “were certainly capable of

stigmatizing plaintiff,” and denied the District’s summary

judgment motion on that basis. Fonville, 448 F. Supp. 2d at 29.

Upon careful review of the caselaw, the Court concludes that

reconsideration is warranted, and that the statements do not

violate Plaintiff’s constitutional rights.

Both this Circuit and the District of Columbia Court of

Appeals have made plain that “not every governmental allegation

of professional incompetence implicates a liberty interest . . .

allegations [infringe constitutional interests] only when they

denigrate the employee’s competence as a professional and impugn

the employee’s professional reputation in such a fashion as to

effectively put a significant roadblock in that employee’s

continued ability to practice his or her profession.” Leonard

v. Dist. of Columbia, 794 A.2d 618, 627-28 (D.C. 2002) (citation

omitted); see also Mazaleski, 562 F.2d at 714 (explaining that

although many allegations in connection with an adverse

employment action “might well interfere with . . . opportunities

26

for subsequent employment,” this does not mean they are “of such

a serious and derogatory nature as to require due process

protection.”).

In Mazaleski, the Circuit court examined the difference

between statements sufficient to infringe a plaintiff’s liberty

interest and statements that, although disparaging or insulting,

do not. 562 F.2d at 714. The Circuit court concluded that

statements indicating that an employee was terminated or demoted

for dishonesty, for criminal conduct, for mental illness, and

for lack of intellectual ability, as distinct from performance,

did affect a plaintiff’s liberty interest. Id.; see also

Leonard, 794 A.2d at 628 (finding that a statement that

employees lack the skills to perform the functions of their jobs

implies an “inherent incapability” “carries more potential for

future disqualification from employment than a statement that

the individual performed a job poorly” and is therefore

actionable). On the other hand, statements that an employee was

demoted or fired for “disruptive conduct,” “improper and

substandard job performance,” failure to meet minimum standards

in professional relationships, “highly unethical” professional

conduct, “unsatisfactory performance,” and “deficiencies in . .

. professional conduct,” do not violate an employee’s

constitutional rights. Mazaleski, 562 F.2d at 714 (collecting

cases).

27

 More recently, in Holman v. Williams, the plaintiff was

fired from his position in the D.C. government. An

administration official made a statement to the Washington Post

that Mr. Holman was terminated because of his “inability to get

along with staff . . . The office was up in arms. It was total

chaos.” Holman, 436 F. Supp. 2d 68, 72 (D.D.C. 2006). The

Court granted the defendants’ motion to dismiss plaintiff’s

reputation-plus claim, finding that the statements “speak only

to plaintiff’s job performance, rather than to any enduring

defect in [his] personality, character or intellect.” Id. at

79.

In the present case, Chief Ramsey’s statements relate to

plaintiff’s “unacceptable” behavior, during a single incident in

which he lost his temper and exercised poor judgment, which did

not meet Ramsey’s expectations for his command staff. These

statements are much like those found constitutionally

permissible in Mazaleski; they describe a lapse in professional

conduct, not an inherent personal trait. The fact that

Plaintiff was off-duty during the incident is not dispositive in

this case. As the District notes, there are laws that regulate

its police officers’ conduct both on and off duty. Def.’s

Renewed Summ. J. Mot. at 28, see also, e.g., D.C. Mun. Regs.

tit. 6-A, § 206.1 (requiring MPD officers to have their service

weapons and badge in their possession while in the District of

28

Columbia); D.C. Mun. Regs. tit. 6-A, § 202.1 (“a member of the

force shall at all times . . . maintain decorum and command of

temper; be patient and discreet . . .”); Dist. of Columbia v.

Coleman, 667 A.2d 811, 818 n.11 (D.C. 1995) (“members of the

police force are ‘held to be always on duty’ [in the District]

and are required to take police action when crimes are committed

in their presence.”) (citations omitted). In sum, Chief

Ramsey’s statements suggest a “situational rather than an

intrinsic difficulty,” and not “an inherent or at least a

persistent personal condition, which both the general public and

a potential future employer are likely to want to avoid.”

Harrison, 815 F.2d at 1518. They are therefore insufficient to

constitute a deprivation of Plaintiff’s liberty as a matter of

law. Mazaleski, 562 F.2d at 714; Leonard, 794 A.2d at 627-28.

Accordingly, for this additional reason, summary judgment on

Count Two of the Complaint will be GRANTED for the defendant.

C. Motion for Attorneys’ Fees

“Under Rule 37, the district court has broad discretion to

impose sanctions for discovery violations, and to determine what

sanctions to impose.” Tequila Centinela S.A. de C.V. v. Bacardi

& Co. Ltd., 248 F.R.D. 64, 68 (D.D.C. 2008). To determine the

proper amount of an attorneys’ fees award, the Court uses the

lodestar method, multiplying a reasonable hourly rate by a

reasonable number of hours expended. Cobell v. Norton, 231 F.

29

Supp. 2d 295, 300 (D.D.C. 2002). The burden is on the moving

party to prove that the request is reasonable, and the Court has

discretion to adjust the fee award in view of the opposing

party’s objections. Tequila Centinela, 248 F.R.D. at 68.

In this case, the District failed to produce documents,

which the Court had ordered produced on July 25 2005, until

January 30, 2008, less than a month before trial was scheduled

to begin. Pl.’s Mot. in Limine (ECF No. 75). After a flurry of

additional proceedings relating in significant part to this

discovery violation, on April 7, 2008, the Court issued an order

awarding sanctions “in the form of costs, expenses and

attorneys’ fees that reasonably flow from the defendant’s

noncompliance” with the Court’s July 25, 2005 Order. Consistent

with the April 2008 Order, Plaintiff submitted documentation

supporting his fee request. Plaintiff requests $65,924.95 in

fees and expenses related to seven categories of work: 1) review

and analysis of the late-produced documents; 2) consultations

between Plaintiff’s two attorneys regarding the District’s non-

compliance; 3) drafting an initial motion for sanctions; 4)

preparation for and attendance at four status hearings in the

winter and spring of 2008; 5) drafting Court-requested

recommendations and responding to the District’s recommendations

for further proceedings regarding scheduling issues in winter

2008; 6) briefing Plaintiff’s renewed motion for sanctions; and

30

7) preparing the fee petition. For the following reasons, the

Court finds some of the fees requested to be excessive and

beyond the scope of the Court’s April 7, 2008 Order, and will

reduce them accordingly. The Court finds the remaining portions

of fee request reasonable and well supported and will therefore

award attorney’s fees.

1. Reasonable Rates

Plaintiff’s counsel request rates under the U.S. Attorney’s

Laffey rate for 2008 consistent with their years of experience:

$390/hour for Ms. Deak’s work and $440/hour for Mr. Williams’

work. The District does not challenge the reasonableness of

these rates, and the Court finds they are reasonable under the

law of this Circuit. See Covington v. Dist. of Columbia, 57

F.3d 1101, 1114 n.5 (D.C. Cir. 1995) (opining that “use of the

broad Laffey matrix may be by default the most accurate evidence

of a reasonable hourly rate.”).

2. Reasonable Hours

In support of the number of hours for which he seeks

compensation, Plaintiff’s two attorneys provide sworn

declarations with attached time logs reflecting the number of

hours expended on the seven tasks described above. See Pl.’s

Petition for Attorney Fees (“Fee Petition”), Ex. 1, Decl. of

Leslie Deak (“Deak Decl.”); Ex. A to Deak Decl; Ex. 2, Decl. of

Ted Williams (“Williams Decl.”), Ex. A to Williams Decl. (ECF

31

No. 93). The time logs are based on contemporaneously recorded

time entries for each attorney, edited to reflect only the

activities counsel deemed pertinent to the 2008 Sanctions Order.6

Deak Decl. ¶ 17; Pl.’s Reply in Support of Petition, Second Deak

Decl. ¶¶ 1-8 (ECF No. 101).

The District objects to many of the time entries for a

variety of reasons. First, it objects to the hours requested

for work related to the status hearings and the drafting of

recommendations to the court because neither the hearings nor

the recommendations solely related to the sanctions. Def.’s

Opp’n to Fee Petition at 13-14. Defendant also argues that the

hours billed for legislative history research are not

compensable, because Ms. Deak would have to complete this

research regardless of the sanctions issue. Id. at 11.

Plaintiff concedes that the status hearings and written

recommendations to the court did not focus only on sanctions

issues, but argues, without citation, that the Court should

award fees for “those tasks that lie outside the direct line

flowing from Defendant’s failure to comply [with the discovery

6
The District questions whether Ms. Deak kept contemporaneous
records. See Def.’s Opp’n to Fee Petition at 10 (ECF No. 98).
In light of Ms. Deak’s sworn declarations that she kept such
records and detailing how she did so, and the standardized time
records she produced, the Court finds the records sufficient “to
permit the . . . Court to make an independent determination
whether the hours claimed are justified.” Nat’l Assn. of
Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C.
Cir. 1982).
32

order] but still stay within a reasonable margin outside the

direct line.” Pl.’s Reply in Support of Fee Pet. at 8.

The Court agrees with Defendant. “As other courts in this

district have noted, a near ‘but for’ relationship must exist

between the Rule 37 violation and the activity for which fees

and expenses are awarded.” Beck v. Test Masters Educational

Services, 289 F.R.D. 374, 385 (D.D.C. 2013) (internal quotations

omitted); see also Westmoreland v. CBS, Inc., 770 F.2d 1168,

1179 (D.C. Cir. 1985) (requiring fees and expenses awarded to be

“incurred because of” the sanctioned violation); Cobell v.

Babbitt, 188 F.R.D. 122, 127 (D.D.C. 1999) (requiring a near

‘but for’ relationship where court ordered fees “caused by

defendants’ failure to obey” discovery orders). The language of

the Court’s April 7, 2008 order does not deviate from this

standard. It permits Plaintiff to seek fees “that reasonably

flow from the defendant’s noncompliance,” with the 2005

discovery order and states that Plaintiff should receive “fees

incurred as a result of defendant’s failure to comply” with that

order. Pl.’s Reply in Support of Fee Pet. at 8; see also April

7, 2008 Order. Accordingly, Plaintiff must establish that the

activity for which he seeks fees and expenses arose out of the

Rule 37 violation that the Court sanctioned.

Plaintiff concedes that “the fee petitions were not the

sole topic of discussion at status conferences.” Fee Petition

33

at 7. The status conferences concerned, inter alia, the

District’s request to file a new dispositive motion, which

“arose for two stated reasons, one of which was to provide it a

chance to raise arguments about the late-produced documents.”

Id. (emphasis added). Likewise, Plaintiff concedes that the

time spent preparing his recommendations to the Court regarding

scheduling issues and his response to defendant’s

recommendations arose “to give the parties an opportunity to

make arguments and proposals to the Court for the handling of

Defendant’s request to file a new dispositive motion.” Id. at

7-8. Again, that request was based partially, but not entirely,

on the late-produced documents. Id. Accordingly, because

Plaintiff has not established that these activities were solely,

or even primarily, focused on the sanctionable conduct, the

Court will deduct 25% of the time requested relating to the

status hearings and the recommendations. This reduction amounts

to a deduction of 9.34 hours for Ms. Deak and 5.875 hours for

Mr. Williams. Finally, Plaintiff does not respond to

defendant’s argument that the Court should deduct time Ms. Deak

spent researching legislative history because this research was

necessary “regardless of any sanctions related issue.” Opp’n to

Fee Petition at 11. The Court finds Plaintiff has not

demonstrated a fee award for legislative history research is

reasonable, and will therefore deduct 5.5 hours Ms. Deak

34

expended on that task. For the same reasons, the Court will

deduct 1.75 hours of Mr. Williams’ time conducting research for

Plaintiff’s yet-to-be-filed dispositive motion on April 27,

2008.

Next, the District objects to Plaintiff’s request for fees

for the time spent requesting a fee award against the District’s

counsel under 28 U.S.C. § 1927, because Plaintiff did not

prevail on this request. Plaintiff argues – without citation -

that “prevailing on an issue is not the standard. The section

of Plaintiff’s brief in the Motion for Sanctions still

reasonably flowed from Defendant’s failure to comply with the

2005 discovery order and, hence, is compensable.” Pl.’s Reply

at 11. Plaintiff’s position is not persuasive. “Attorney’s

fees are not recoverable for time [spent] on issues on which the

party seeking the fees did not ultimately prevail.” Tequila

Centinela, 248 F.R.D. at 71 (citations omitted). In this

matter, the single issue that was decided adversely to the

District was its non-compliance with the July 2005 discovery

Order. The Court rejected Plaintiff’s claims that the

District’s counsel should be separately sanctioned for

vexatiously multiplying the proceedings. Plaintiff spent

approximately one-fifth of his second sanctions brief and reply

on this unsuccessful argument. Accordingly, the Court will

35

deduct that amount from Plaintiff’s fee request. This reduction

amounts to a deduction of 8.464 hours for Ms. Deak.

Defendant’s remaining arguments consist mainly of

generalized claims that the billing entries are vague, the

attorneys engaged in impermissible block billing, and the hours

spent are duplicative and excessive. See generally Def.’s Opp’n

to Petition. For example, Defendant claims that all of the

requested fees should be reduced by 50% due to impermissible

block billing, see id. at 8, and claims, without support, that

Ms. Deak should have drafted Plaintiff’s reply in support of

sanctions in “no more than 5 billable hours.” Id. at 20.

Defendant also claims that the Plaintiff should not recover fees

for drafting the second sanctions motion because it was

“duplicative of the time spent to draft the first motion.” Id.

at 11. None of these arguments are persuasive.

Block billing refers to a single time entry that lists

multiple tasks, thus making it impossible to evaluate each

task’s reasonableness. See Role Models Am., Inc. v. Brownlee,

353 F.3d 962, 971 (D.C. Cir. 2004). The Court is satisfied with

the level of detail provided in the entries, and finds that,

with the exception of the specific reductions explained herein,

the Plaintiff’s attorneys expended a reasonable amount of time

in this matter. Accordingly, no reductions will be made based

on alleged “block billing.”

36

 Defendant’s argument that Plaintiff should not recover fees

for drafting the second motion for sanctions is also without

merit. A cursory comparison of the two motions reveals that,

although there is some minor overlap between the two, the

Plaintiff’s second motion is much more thorough and more

detailed than the first, and also asserts, for the first time,

several additional bases for sanctions. See Reply in Support of

Fee Pet. at 24; compare Doc. No. 75 (nine page motion in limine

to exclude newly produced documents from trial) with Doc. No. 82

(thirty two page motion for sanctions pursuant to Fed. R. Civ P.

37, 16, and 28 U.S.C. § 1927). Likewise, the bare, unsupported

argument that Plaintiff should have taken five hours to draft

reply is without merit. Plaintiff’s reply was thorough and

substantive; and although his attorneys may have spent more time

on the reply than others would choose, “[t]he question for the

Court, however, is not whether the expense was necessary but

whether it was reasonable.” Beck, 289 F.R.D. at 385. Given the

District’s failure to provide the discovery to which Plaintiff

was entitled, and its failure to provide discovery specifically

ordered by the Court in its July 25, 2005 Order until less than

four weeks before trial, Plaintiff reasonably expended a number

of hours obtaining relief to which he was entitled.

Making the above noted reductions, the Court will award

Plaintiff $ 41,580.24 in fees for Ms. Deak’s work and

37

$ 11,899.80 in fees for Mr. Williams’ work which reasonably

flowed from the District’s non-compliance with this Court’s

Order of July 25, 2005. The District shall pay Plaintiff’s

attorneys fees of $53,480.04.

IV. CONCLUSION

For the foregoing reasons, it is hereby ordered that the

defendant’s renewed motion for summary judgment is GRANTED, and

it is further ordered that Plaintiff’s renewed cross motion for

partial summary judgment is DENIED. It is further ordered that,

in accordance with the Court’s Minute Order of March 23, 2009,

the Plaintiff is hereby awarded attorneys’ fees of $53,480.04.

An appropriate order accompanies this memorandum opinion.

SIGNED: Emmet G. Sullivan
United States District Judge
April 14, 2014

38