Sexcius v. District of Columbia, Civ. A. No. 88-2104 (RCL).

• Decision Date: 13 December 1993
• Docket Number: Civ. A. No. 88-2104 (RCL).
• Citation: 839 F. Supp. 919
• Parties: Sheriel SEXCIUS, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

839 F. Supp. 919

Sheriel SEXCIUS, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.

Civ. A. No. 88-2104 (RCL).

United States District Court, District of Columbia.

December 13, 1993.

Francine K. Weiss, Kalijarvi & Chuzi, P.C., Washington, DC, for plaintiffs.

Eugene Adams, Asst. Corp. Counsel, Washington, DC, for defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before this court on plaintiffs' motion for an award of attorney's fees and costs under 42 U.S.C. § 1988, the Civil Rights Attorney's Fee Awards Act of 1976. Having considered the extensive memoranda and evidence of both parties, this court shall grant plaintiffs' motion, awarding plaintiffs $247,809.87 in attorney's fees and costs. A separate order shall issue this date.

I. BACKGROUND

The case underlying this attorney's fee litigation is an action alleging the violation of First and Fourteenth Amendment rights of two District of Columbia schoolteachers, Sheriel Sexcius and William Edmead, who had spoken out regarding certain educational practices. Attorneys Francine K. Weiss and Edith Barnett represented the teachers, working together in this case as they had long done on other cases.¹ Ms. Weiss was lead counsel and the point of contact between plaintiffs and counsel and witnesses. (She and Ms. Barnett were aided by three law students, who helped organize documents and research.)

Ms. Weiss and Ms. Barnett won for their clients a permanent injunction forbidding Woodson High School Principal Lucile Christian, Director of the Public School Certification and Accreditation Branch Mary B. Hendrick, the superintendent of schools, the District of Columbia, and the mayor from infringing on plaintiffs' constitutional rights and from retaliating against plaintiffs in the workplace again for speaking out on their educational views. In an order accompanying the resolution of the merits of plaintiffs' claim, this court determined that plaintiffs are entitled to reasonable attorney's fees and costs. See Sexcius v. District of Columbia, No. 88-2104, slip op. at 52 (D.D.C. Oct. 15, 1992). The issue now before this court is what constitutes reasonable attorney's fees and costs in this case.

II. ATTORNEY'S FEES

"The initial estimate of a reasonable attorney's fee" — the so-called lodestar fee — "is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891 (1984) (citations omitted).² To determine the lodestar, this court will determine, in turn, the reasonable hourly rate and the reasonable number of hours billed by counsel.

A. Counsel

1. Reasonable Hourly Rate

Plaintiffs claim compensation at a billing rate of $260 per hour, which is (they claim) the prevailing market rate for lawyers with their legal experience. Defendants argue that the appropriate rate is no more than $100 per hour, the rate that plaintiffs paid their counsel throughout this litigation under a retainer agreement. Because plaintiffs' counsel charged plaintiffs this low $100 rate out of public interest motives, plaintiffs are entitled to collect the prevailing market rate, not merely the rate they actually charged plaintiffs.

a. Counsel Charged Reduced Rates in the Public Interest

Plaintiffs' counsel have a tradition of charging their less wealthy clients belowmarket rates when their cases are important to the public interest. In the present case, for example, because plaintiffs were public school teachers — in the words of their counsel, "not wealthy people" — their counsel agreed to charge them only $100 per hour, a "rate they could afford." (Defendants have conceded that this $100 rate is below the market rate.³) Counsel charged them this reduced rate in order to take plaintiffs' case, which posed important constitutional questions and affected the educational interests of the city's public school students. (Barnett Decl. (Reply) at ¶ 6; Weiss Decl. (Reply) at ¶ 7.)

This is not an atypical case for plaintiffs' counsel. They have a tradition of representing the constitutional and statutory rights of individual employees and employee groups, including labor unions. Because counsel earn their living from their practice, they cannot afford to represent their clients for free. (Weiss Decl. (Reply) at ¶ 8; Barnett Decl. (Reply) at ¶ 5.) Instead, they represent their worthy but not wealthy clients at below-market rates. Lawyers who make this kind of noble compromise may recover prevailing market rates for their work. See Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1520 (D.C.Cir.1988) (en banc) (SOCM). Because plaintiffs have shown that their counsel charge below-market rates out of public-spirited motives, plaintiffs are entitled to recover the prevailing market rate for their counsels' services.

b. Prevailing Market Rate

Although plaintiffs are clearly entitled to a fee award calculated at the rates prevailing in the relevant legal market,⁴ the parties disagree as to which market of legal services is the "relevant market" in this case.

Plaintiffs argue that the matrices and other evidence they have produced, charting the rates charged by lawyers across the District of Columbia for complicated federal litigation, establish the prevailing market rate. This matrix-based evidence would award counsel $260 per hour.

Defendants challenge plaintiffs' matrix-based evidence as too broad to be useful. Plaintiffs' matrices and other evidence survey rates that District of Columbia lawyers earn from commercial clients for performing "general legal services," rates far higher than those the market awards for plaintiffs' civil rights work. (Defs.' Opp'n, at 11.) Ms. Weiss might earn $260 per hour from a commercial client for her general legal services; for her civil rights work for plaintiffs, by contrast, the market would provide her no more than $125-$150 per hour,⁵ defendants argue.

Defendants' position may be plausible. As discussed in Covington v. District of Columbia, No. 87-2658, ___ F.Supp. ___, (D.D.C. Dec. 13, 1993), no District of Columbia federal court appears to have spoken squarely on the issue of sub-markets, but the legislative history of § 1988⁶ and subsequent Supreme Court⁷ and District of Columbia circuit⁸ caselaw construing attorney's fee statutes make clear that in resolving any particular attorney's fee question under § 1988 (including this sub-market question), courts must aim to award attorney's fees that mirror what counsel would earn in the market. If the market would provide different sub-markets⁹ of lawyers different hourly rates, courts properly aiming to mirror the market would award fees accordingly, granting lawyers in each sub-market the fees that their particular services command in the marketplace.

Unfortunately, the resolution of the parties' debate in this case is no more satisfying than the resolution of the District of Columbia's identical debate with the plaintiffs in the Covington case. Defendants have produced exactly the same evidence in both cases. In that case, as in this one, defendants' evidence is not sufficient to persuade this court that the prevailing rate in the submarket of plaintiffs' lawyers handling civil rights, employment, and discrimination cases is — as defendants claim — lower than the rate prevailing in the broader market of complicated federal litigation.¹⁰ Because defendants have not carried their evidentiary burden, this court cannot rule for defendants. Because this court cannot rule for defendants, for today plaintiffs' theory that the relevant market should be very broadly defined still stands.¹¹ Because plaintiffs have met their evidentiary burden under that theory — and because defendants' factual rebuttal of plaintiffs' evidence has been ineffectual — plaintiffs shall be awarded the prevailing market rates for their services in the broadly defined market of complicated federal litigation. This court now turns to the determination of those rates.

In performing the difficult task of calculating the prevailing market rates for attorney's fees, this court by necessity relies upon the parties' evidence of the prevailing market rates. See Nat. Ass'n of Concerned Vets. v. Sec. of Defense, 675 F.2d 1319, 1323-24 (D.C.Cir.1982) (per curiam) (noting that attorney's fee cases impose a "difficult burden" on a district court and "correspondingly heavy" evidentiary burdens on fee applicants). Defendants' blunderbuss criticisms of plaintiffs' matrices — as representing only a small percentage of the District of Columbia's Bar, as omitting the "lower end of the market" of legal services, and as failing to reflect the recent slowdown in the growth of rates — may have merit, but standing alone these criticisms are insufficient to undermine plaintiffs' evidence. See Concerned Veterans, 675 F.2d at 1337-38 (Tamm, J., concurring). Because defendants have produced little helpful countervailing evidence and because plaintiffs' evidence — though not entirely satisfying — is more persuasive, this court is forced to rely solely upon plaintiffs' evidence.

Plaintiffs' chief evidence is a pair of court-approved matrices. The first of these matrices — the Laffey matrix — is an updated fee matrix that has been relied upon, at least in part, by six District of Columbia district judges¹² and that has received a degree of approval from the Court of Appeals for the District of Columbia Circuit.¹³ The second matrix — developed by the U.S. Attorney's Office for the District of Columbia for use in negotiating settlements¹⁴ — extrapolates from the 1981-82 rates set by the Laffey court in 1982¹⁵ by adding the Consumer Price Index increase for the Washington, D.C., metropolitan area to the prior year's rate, and rounding upwards if the sum is within $3 of the next $5 multiple. (See Covington, Appendix B, Methodology Note.) The rate for 1991-92, the last fee year charted by...