Salazar v. Dist. of Columbia

• Decision Date: 30 January 2014
• Docket Number: Civil Action No. 93–452 (GK)
• Citation: 991 F.Supp.2d 39
• Parties: Oscar Salazar, et al., Plaintiffs, v. District of Columbia, et al., Defendants.
• Court: U.S. District Court — District of Columbia

991 F.Supp.2d 39

Oscar Salazar, et al., Plaintiffs,

v.District of Columbia, et al., Defendants.

Civil Action No. 93–452 (GK)

United States District Court, District of Columbia.

January 30, 2014

April Isabel Land, University of New Mexico, Albuquerque, NM, Bruce J. Terris, Kathleen Lillian Millian, Terris, Pravlik & Millian, LLP, Paula D. Scott, Public Defender Service for the District of Columbia, Washington, DC, Lynn E. Cunningham, Dubois, WY, Robert I. Berlow, Crownsville, MD, for Plaintiff.

Alan S. Block, Bonner Kiernan Trebach & Crociata, LLP, Bradford Collins Patrick, Charles Luverne Reischel, Elizabeth Sarah Gere, Ellen A. Efros, Office of the Attorney General Civil Litigation Division, Nancy S. Schultz, Arabella W. Teal, Marceline D. Alexander, Office of Corporation Counsel, D.C., Peggy Massey, Department of Human Services, Robert C. Utiger, Grace Graham, DC Office of the Attorney General, Wanda Tucker, Department of Health Medical Assistance Administration, Washington, DC, for Defendant.

MEMORANDUM OPINION

Gladys Kessler, United States District Judge

Plaintiffs have filed a Motion for an Award of Litigation Costs, Including Attorneys' Fees and Expenses, For 2011 and Certain Categories and Work From 2010 Through 2012 That Had Previously Been Held in Abeyance or Not Decided [Dkt. No. 1803]. The Court has already awarded Plaintiffs $476,667.78 [Dkt. No. 1841] that was undisputed by Defendants. Therefore, the amount remaining to be dealt with in this Motion is $806,933.08, and Plaintiffs seek a total award of $1,283,600.86.¹ Upon consideration of the Motion, the Opposition [Dkt. No. 1840], the Reply [Dkt. No. 1859], Defendants' Surreply [Dkt. No. 1899], and the extensive recordin this case, the Court concludes that the Motion should be granted in part and denied in part.

Defendants raise many, many objections to the lengthy papers and supporting data filed by Plaintiffs. Some have merit, many do not, and some are simply trivial. The Court will address in turn those which merit analysis.

I. APPROPRIATE BILLING RATES FOR COUNSEL

In Salazar v. District of Columbia, 123 F.Supp.2d 8 (D.D.C.2000), and in all subsequent fee rulings, the Court ruled that the methodology under which the Laffey rates should be updated is properly measured by the Legal Services Index (“LSI”) of the Nationwide Consumer Price Index (“CPI”), rather than by the All–Items CPI for the Washington, D.C. area. The Court remains convinced that this methodology is appropriate.

First, despite the fact that Defendants did not appeal the adoption of this method in the 2000 decision, they have recently begun to challenge the use of the LSI. Three years ago, the Court wrote a lengthy explanation of why it rejected use of the All–Items CPI, finding that the LSI is a more reliable index for measuring legal hourly billing in the Washington, D.C. area. Salazar v. Dist. of Columbia, 750 F.Supp.2d 70, 72–74 (D.D.C.2011) ( “Salazar II ”). As the Court originally explained in Salazar I, 123 F.Supp.2d at 14–15, “the [LSI-adjusted][ Laffey index has the distinct advantage of capturing the more relevant data because it is based on the legal services component of the Consumer Price Index rather than the general CPI on which the U.S. Attorney's Office matrix is based.”

In an extremely thorough and well-researched opinion issued recently, Judge Beryl A. Howell of this Court cited data further supporting this conclusion:

[T]he USAO Matrix is based on a logical assumption, namely, that the rate for legal services in the Washington, D.C. area increases in lock step with the overall rise in the costs of all goods and services, including pizza delivery and cleaning services for this area .... There is simply no evidence, however, that this is, in fact, a correct presumption.

On the contrary, the [Bureau of Labor Statistics] CPI shows that the cost of legal services nationally has far outstripped the increase in overall prices. The nationwide cost of legal services has jumped ninety-one percent, nearly twice as much as the general CPI, since 1997.... Considering that the Washington, D.C. market is ranked third nationally for the highest cost of legal services, behind only New York and San Francisco, a nationwide average for the cost of legal services logically would be expected to underestimate the rates charged in this area .... [T]he LSI-adjusted rates are corroborated by recent survey data.... This survey, reported in Corporate Counsel magazine, revealed that the average hourly rate in 2013 for a law firm partner in the Washington, D.C. market is $649.24 per hour ... which is $25 per hour higher than the highest rate the LSI-adjusted matrix predicts for an attorney with between eleven and nineteen years of experience, see LSI-adjusted matrix, and more than two hundred dollars more per hour than the corresponding rate in the USAO Matrix.

Eley v. Dist. of Columbia, No. 11–309, ––– F.Supp.2d ––––, 2013 WL 6092502, at *9–10 (D.D.C. Nov. 20, 2013); see also Karen Sloan, NLJ Billing Survey: $1,000 Per Hour Isn't Rare Anymore, National Law Journal (Jan. 13, 2014).

Judge Howell goes on to point out that, “considering that Washington, D.C. is among the most expensive legal services markets in the country, ... it would appear that the use of a nationwide legal service index is, if anything, likely to underestimate the costs of local legal services because such a rate is an average of all costs nationwide. In short, the LSI-adjusted matrix is probably a conservative estimate of the actual cost of legal services in this area, but at the very least it appears to be a more accurate reflection of the cost of legal services both in this community and nationwide.” Eley, 2013 WL 6092502, at 10 (emphasis in original).

Second, Defendants now claim that use of the LSI contravenes the Supreme Court's ruling in Perdue v. Kenny A., 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). Defendants' reading of Perdue is simply inaccurate. In that case, Justice Alito set forth the basic applicable law relating to the calculation of attorneys' fees and expenses in our legal system. Id. at 550–52, 130 S.Ct. 1662. In the course of that discussion, he addressed various methodologies used to determine “a reasonable attorney's fees as part of the costs” under 42 U.S.C. § 1988. Id. Recognizing that Congress' purpose in enacting Section 1988 was to “ensure that federal rights are adequately enforced,” id. at 550, 130 S.Ct. 1662, Justice Alito pointed out that, at this point in time, the overwhelmingly accepted methodology for assessing attorneys' fees under federal fee-shifting statutes is the well known “lodestar method,” which “ roughly approximates the fee that the prevailing attorney would have received if he or she had been represented by a paying client who was billed for the hours in a comparable case.” Id. at 551, 130 S.Ct. 1662 (emphasis in original). This method is often referred to as “the number of hours reasonably expended multiplied by a reasonably hourly rate.” Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) ( en banc ).

After setting forth the “six important rules” that governed the case, Justice Alito focused on the particular facts involved, the ruling of the District Court Judge granting a 75 percent increase of the lodestar amount, and the ruling of the Court of Appeals affirming the District Court. 559 U.S. at 552–59, 130 S.Ct. 1662. The Supreme Court concluded that “the District Court did not provide proper justification for the large enhancement that it awarded.” Id. at 557, 130 S.Ct. 1662.

This case does not involve an enhancement. Rather, it involves a totally different issue—the method for updating the lodestar amount over time to reflect the direction in which hourly legal fees are moving throughout the country. That is a far cry from the issues in Perdue where the trial judge increased the lodestar by 75 percent without giving any justification for his actions.

Thus, in this case, the issue is whether an index which measures the movement of national legal service costs to calculate increased legal fees is more reasonable and accurate than an index which measures the costs of numerous non-legal consumer items, calculated for the Washington D.C. area. Defendants have made no attempt and offered no evidence to show that the methodology focusing on all consumer goods in the Washington, D.C. area provides more accurate rates than the methodology that focuses on the costs of legal fees throughout the country.

Defendants argue that Perdue was an intervening change in the law that “provides district courts with clarity as to how to calculate reasonable attorneys' fees under § 1988.” Defendants' Opp'n at 53. Since Pe rdue was decided more than nine months before Salazar II was issued, it cannot exactly be considered an “intervening” change in the law. Regardless, as noted above, the analysis in Perdue dealt solely with an enhancement of the lodestar, an issue irrelevant to this case. Using a particular method (i.e., applying the LSI to the Laffey rates) to calculate attorneys' fees does not constitute an enhancement. Consequently, the Supreme Court's ruling does not provide guidance on this issue.

The Court is not insensitive to the fact that this case, filed in 1993, has generated very substantial attorneys' fees for Plaintiffs—fees which are ultimately paid by D.C. taxpayers. However, as our Court of Appeals noted more than thirty years ago, although “the government has a deep pocket ... we think ... that fees should be neither lower, nor calculated differently, when the losing defendant is the government.” Copeland, 641 F.2d at 896 (internal quotation marks omitted).

Moreover, the bottom line is that Defendants entered into a Settlement Order in this case which requires Plaintiffs' counsel to provide extensive monitoring of the provision of EPSDT services to class members. The day that the Parties are able to come to a final settlement in this case,²...