DL v. Dist. of Columbia, Corp., 18-7004

• Decision Date: 21 May 2019
• Docket Number: No. 18-7004,18-7004
• Citation: 924 F.3d 585
• Parties: DL, et al., Appellants v. DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

924 F.3d 585

DL, et al., Appellants

v.DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellees

No. 18-7004

United States Court of Appeals, District of Columbia Circuit.

Argued March 19, 2019

Decided May 21, 2019

Carolyn Smith Pravlik argued the cause for appellants. With her on the briefs were Todd A. Gluckman and Cyrus Mehri. Margaret A. Kohn entered an appearance.

Michael T. Kirkpatrick and Allison M. Zieve were on the brief for amici curiae Public Citizen, Inc., et al., in support of appellants.

Lucy E. Pittman, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Karl A. Racine, Attorney General, and Loren L. AliKhan, Solicitor General. Caroline S. Van Zile, Deputy Solicitor General, entered an appearance.

Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States of America supporting appellees. With him on the brief was Jessie K. Liu, U.S. Attorney.

Before: Garland, Chief Judge, Tatel, Circuit Judge, and Sentelle, Senior Circuit Judge.

Dissenting opinion filed by Senior Circuit Judge Sentelle.

Tatel, Circuit Judge:

When plaintiffs prevail in a civil rights case, the law usually entitles them to recover reasonable attorney’s fees. Federal district judges, whom Congress has tasked with tabulating those fees, frequently find themselves whipsawed between two seemingly discordant instructions: (1) ascertain the hourly rate for lawyers performing similar work "with a fair degree of accuracy" using "specific evidence," National Association of Concerned Veterans v. Secretary of Defense , 675 F.2d 1319, 1325 (D.C. Cir. 1982), but (2) do so without turning fee calculations into "a second major litigation," Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). To reconcile those directives, district courts often turn to a fee matrix—that is, a chart averaging rates for attorneys at different experience levels. For decades, courts in this circuit have relied on some version of what is known as the Laffey matrix. Created in the 1980s, that matrix is based on a relatively small sample of rates charged by sophisticated federal-court practitioners in the District of Columbia. Litigants have updated the matrix for inflation using an assortment of tools. Recently, however, the United States Attorney’s Office sought to replace this standby with a new default matrix based on data for all types of lawyers—not just those who litigate complex federal cases—from the entire metropolitan area—not just the District of Columbia.

In this case, after plaintiffs prevailed in a long-running Individuals with Disabilities Education Act class action, the district court accepted the District of Columbia’s invitation to rely on the USAO’s new matrix in awarding fees. But as we explain below, the new matrix departs from the statutory requirement that reasonable fees be tethered to "rates prevailing in the community" for the "kind and quality of services furnished." 20 U.S.C. § 1415(i)(3)(C). We therefore vacate the award and remand for the district court to recalculate the hourly rate based on evidence that focuses on fees for attorneys practicing complex federal litigation in the District of Columbia.

I.

We begin by reviewing the elementary principles governing fee-shifting rate calculations and the genealogy of fee matrices in this circuit, and then turn to the history of this particular case.

A.

As Congress enacted a growing number of laws securing civil rights, it confronted a problem: "enforcement would prove difficult" without private lawsuits, and would-be plaintiffs needed skilled lawyers to guide them through the obstacle course of complex litigation. Newman v. Piggie Park Enterprises, Inc. , 390 U.S. 400, 401, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). But those plaintiffs often lacked financial resources "indispensable" to attracting "competent counsel" willing and able to take on defendants of greater means. Save Our Cumberland Mountains, Inc. v. Hodel , 857 F.2d 1516, 1521 (D.C. Cir. 1988) (en banc) (internal quotation marks and emphasis omitted). So Congress turned to fee-shifting provisions, simultaneously "encourag[ing] plaintiffs to bring suit" and allowing those who prevail to finance the cost of legal assistance by recovering fees from the defendant. Mary Frances Derfner & Arthur D. Wolf, 1 Court Awarded Attorney Fees ¶ 5.03, § 7(a) (2018 ed.); accord Piggie Park , 390 U.S. at 402, 88 S.Ct. 964 ("Congress therefore enacted the provision for counsel fees ... to encourage individuals injured ... to seek judicial relief ...."). "[O]ver 100 separate statutes" now provide "for the award of attorney’s fees." In re Donovan , 877 F.2d 982, 991 (D.C. Cir. 1989) (internal quotation marks omitted); see also Congressional Research Service, Report 94-970, Awards of Attorneys’ Fees by Federal Courts and Federal Agencies 57–117 (Oct. 22, 2009) (listing them).

The basic formula for calculating an attorney fee award seems straightforward: multiply "the number of hours reasonably exp[e]nded in litigation" by "a reasonable hourly rate or ‘lodestar.’ " Cumberland Mountains , 857 F.2d at 1517. The Supreme Court has offered guidance about how to perform that calculation, explaining that "reasonable fees" are those grounded in rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson , 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The statute at issue here, the Individuals with Disabilities Education Act (IDEA), codifies that interpretation of "reasonable": "Fees awarded under [IDEA] shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished." 20 U.S.C. § 1415(i)(3)(C).

Implementing this relatively simple definition has proven vexing. See Reed v. District of Columbia , 843 F.3d 517, 521 (D.C. Cir. 2016) ("[D]etermining ... the prevailing market rate[ ] is ‘inherently difficult.’ " (quoting Eley v. District of Columbia , 793 F.3d 97, 100 (D.C. Cir. 2015) )). We have operationalized it with a burden-shifting framework: To begin, "a fee applicant bears the burden of establishing entitlement to an award ... and justifying the reasonableness of the rates." Covington v. District of Columbia , 57 F.3d 1101, 1107 (D.C. Cir. 1995). At that point, the claimed fee "is presumed to be the reasonable fee contemplated by" the statute, and the burden shifts to the defendant to present "equally specific countervailing evidence" if it seeks a different (presumably lower) rate. Id. at 1109 (internal quotation marks omitted).

For either party, a matrix showing the average hourly price tag of comparable lawyers may "provide a useful starting point" in calculating market rates. Id. But because such "matrices are somewhat crude," the matrix’s proponent usually cannot stop there. Id. Instead, the proponent may point to additional evidence, which can include "surveys to update the matrix; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases." Id. No particular type of evidence can be considered gospel; "evidence of the prevailing market rate can take many forms." Eley , 793 F.3d at 104 n.5.

The first and most influential matrix in this circuit debuted in Laffey v. Northwest Airlines, Inc. , a 1983 Title VII and Equal Pay Act case. 572 F. Supp. 354 (D.D.C. 1983), affirmed in part, reversed in part , 746 F.2d 4 (D.C. Cir. 1984), overruled in part , Cumberland Mountains , 857 F.2d 1516. In those fledgling days—before big data, Google, or a prolific cottage industry dedicated to studying the legal profession—the prevailing plaintiff’s attorney created a fee schedule by "inquir[ing] into the billing rates of firms in Washington, D.C., which [were] engaged in active litigation practice in the federal courts" and collecting "affidavits ... giving specific rate information, supporting and substantiating the rates described." First Rezneck Affidavit ¶ 9, Laffey v. Northwest Airlines, Inc. , No. 1:70-cv-02111-AER (D.D.C. Mar. 17, 1983), Joint Appendix ("J.A.") 571–72. A star was born. See Eley , 793 F.3d at 100 (describing the Laffey matrix as "[t]he most commonly used fee matrix" in this circuit "for lawyers who practice ‘complex federal litigation’ ").

We endorsed the Laffey matrix in Save Our Cumberland Mountains, Inc. v. Hodel . Sitting en banc, we "commend[ed] its use for the year to which it applie[d]" and suggested "the compiling of a similar schedule of prevailing community rates for other relevant years." Cumberland Mountains , 857 F.2d at 1525. Joseph Yablonski, a Washington, D.C. litigator, answered that call by speaking "with attorneys from" seven major law firms and comparing the rates he "found with the rates set forth in two broad-ranging surveys of hourly rates published in the National Law Journal ." Yablonski Declaration ¶¶ 5–6, Broderick v. Ruder , No. 1:86-cv-01834-JHP (D.D.C. 1989), J.A. 624–25. Yablonski’s labors updated Laffey ’s rates through 1989. Somewhat confusingly, litigants routinely refer to both the original 1983 matrix and Yablonski’s 1989 update as the " Laffey matrix."

In the following decades, hourly rate disputes in this circuit often revolved around whether a case was sufficiently complex to warrant Laffey rates, see, e.g. , Reed , 843 F.3d at 525–26 (addressing that question in an IDEA case), and, if so, how best to update the Laffey matrix for inflation, see Eley , 793 F.3d at 101 (describing that debate). The USAO maintained one version of the matrix, relying on the original 1983 base data updated through a Bureau of Labor Statistics inflation index that tracks regional price...