Tenants of 710 Jefferson St. v. D.C. Rental Hous. Comm'n, 13–AA–199.

• Decision Date: 20 August 2015
• Docket Number: No. 13–AA–199.,13–AA–199.
• Citation: 123 A.3d 170
• Parties: TENANTS OF 710 JEFFERSON STREET, NW, Petitioners, v. DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent, and Steven Loney, Intervenor.
• Court: D.C. Court of Appeals

123 A.3d 170

TENANTS OF 710 JEFFERSON STREET, NW, Petitioners

v.DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, RespondentandSteven Loney, Intervenor.

No. 13–AA–199.

District of Columbia Court of Appeals.

Argued June 4, 2014.

Filed Aug. 20, 2015.

Paul M. Smith, with whom Melissa A. Cox, Esteban M. Morin, Washington, DC, and Ann K. Wagner were on the brief, for petitioners.

Donna M. Murasky, Senior Assistant Attorney General for the District of Columbia, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.

Roger D. Luchs, Washington, DC, for intervenor.

Before FISHER and EASTERLY, Associate Judges, and RUIZ, Senior Judge.

Opinion

RUIZ, Senior Judge:

This is the second time this case comes before the court on a petition for review of a decision of the District of Columbia Rental Housing Commission (“the Commission”). In the first appeal we upheld the Commission's decision denying a substantial rehabilitation petition filed by Steven Loney, the owner of a fourteen-unit residential building at 710 Jefferson Street, Northwest (“the Landlord”), that was opposed by the tenants of the building (“the Tenants”). Loney v. District of Columbia Rental Hous. Comm'n, 11 A.3d 753 (D.C.2010), en banc reh'g denied Feb. 17, 2011. However, we reversed the Commission's calculation of attorney's fees for work performed by The Legal Aid Society of the District of Columbia (“Legal Aid”) in its successful representation of the Tenants in the administrative proceedings and remanded the case for further consideration of the attorney's fees award. See id. at 759–61. The Tenants subsequently filed a motion in this court requesting fees for Legal Aid's work on the first appeal and on the response to the Landlord's en banc petition, which we referred to the Commission for an initial recommendation. The petition for review we now consider is brought by the Tenants who contest the Commission's reduction of the attorney's fees requested for Legal Aid's work done in the first appeal before the court and on remand before the Commission following that appeal.

The Commission discounted the proposed hourly rates, which were based on the Laffey Matrix, by about twenty percent and also reduced Legal Aid's hours-expended calculation. We conclude that the Commission erred in lowering the Laffey-derived rates, and that it abused its discretion in shaving the hours Legal Aid reasonably expended in representing the Tenants. Accordingly, we reverse the Commission's fee award for Legal Aid's representation in the remand proceeding and do not adopt the Commission's recommendation for fees for Legal Aid's representation of the Tenants before the court. Tenants are awarded attorney's fees in the amount of $30,798.80 for work performed by Legal Aid in connection with the first appeal and subsequent remand.

I. BACKGROUND

The facts and procedural background of the underlying administrative case are set out in our opinion in the first appeal, Loney, 11 A.3d 753, so we provide only the facts and procedural history relevant to the issues concerning attorney's fees that are now before us. On August 6, 2004, the Landlord filed a substantial rehabilitation petition for his 14–unit apartment building, which would have allowed an increase in the rent charged to the Tenants. After a hearing examiner of the Housing Regulation Administration, Rental Accommodations and Conversion Division (the “RACD”) granted the petition on July 28, 2005, the Tenants appealed. The Commission reversed the hearing examiner's decision on September 3, 2008, denied the landlord's petition, and awarded attorney's fees to the Tenants. Landlord petitioned for review by this court of the Commission's order denying Landlord's substantial rehabilitation petition, and the Tenants cross-petitioned, challenging the amount of the Commission's attorney's fee award.

On September 23, 2010, we affirmed the Commission's order denying the Landlord's substantial rehabilitation petition but reversed and remanded its decision on the attorney's fee award. We concluded that, contrary to the Commission's order, the Commission had jurisdiction to award attorney's fees for work performed before the hearing examiner. See id. at 759–60. Additionally, we held that the Commission abused its discretion in rejecting the proposed hourly rate of $225, based on the Laffey Matrix,¹ and adopting, instead, the $125 fee provided in the Equal Access to Justice Act (“EAJA”) applicable to certain civil actions brought by or against the United States Government, 28 U.S.C. § 2412(d)(2)(A). See id. at 760. Because the Landlord did not contest the Tenants' proposed hourly rate or submit alternative hourly rates, and because the Commission's only rationale for sua sponte applying EAJA rates was that it “has traditionally used” those rates “without any consideration of the Frazier [v. Franklin Inv. Co., 468 A.2d 1338, 1341 n. 2 (D.C.1983) ] factors,” we concluded that “rejection of the [T]enants' proposed rate[s] constituted an abuse of discretion.” Loney, 11 A.3d at 760.

Accordingly, we “remand[ed] for further consideration of the [T]enants' proposed hourly rate for attorney's fees ... and to provide the [T]enants with an opportunity in which to present their claim for attorney's fees for work performed before the hearing examiner.” Id. at 760–61. We noted that the Tenants “could provide more evidence to support the Laffey Matrix as the appropriate rate—for example, expert testimony or affidavits regarding rates charged by attorneys for similar work in the District of Columbia.” Id. at 761 n. 5.

Following the issuance of our opinion in Loney, the Tenants filed a motion in this court requesting attorney's fees for legal work performed by Legal Aid on the first appeal (briefing and oral argument), which it supplemented with the additional fees associated with responding to the Landlord's petition for rehearing en banc. The Landlord opposed the request. On April 20, 2011, we issued an order referring the Tenants' request for fees to the Commission “for calculation of the reasonable number of hours and hourly rate the agency recommends be awarded.”²

On remand before the Commission, the Tenants requested $28,350 for Legal Aid's representation before the RACD and the Commission during the administrative proceedings, and presented the request for $27,752.75 that had been submitted to the court for work performed in connection with the first appeal to this court.³ In a supplemental motion, the Tenants requested an additional $6,033.75 for work done by Legal Aid before the Commission pursuant to this court's remand.

In support of their fee requests, the Tenants submitted an affidavit from Julie Becker, the lead attorney in the appeal, which set out the education and professional experience of the Legal Aid attorneys involved in the case and detailed billing entries for work done on appeal and on remand, broken down by stage of the litigation (appeal, response to petition for rehearing, remand before Commission), attorney, date, time expended and description of the work performed.⁴ As Legal Aid represents indigent clients and does not have established billing rates, the Tenants proposed that in calculating the attorney's fee award, the hourly rate should be based on the Laffey Matrix.⁵ The Tenants provided six affidavits from attorneys who practice in the District of Columbia who attested to the reasonableness of the Laffey rates for work performed by Legal Aid in this case.⁶

On June 6, 2012, the Commission issued an order in which it approved an award of $22,162.50 for work done in the administrative proceedings prior to the 2010 petition for judicial review that led to the first appeal.⁷ With respect to the work done in connection with the appeal to this court and the subsequent remand, the Commission reduced the hours claimed by twenty percent. As to the hourly rates in the Tenants' request, the Commission noted that the Landlord did not dispute the proposed hourly rate for Becker's work on the appeal, which was $335 based on the Laffey Matrix. However, the Landlord did dispute the hourly rates for the work performed by Becker and the other Legal Aid attorneys in responding to the Landlord's petition for rehearing en banc and in litigating the case on remand before the Commission, even though they were similarly based on the Laffey Matrix.⁸

The Commission was not persuaded by the affidavits submitted supporting the reasonableness of the Laffey rates. According to the Commission, “each of the attorneys who submitted an affidavit practices at a large multi-regional, or multinational, law firm that typically do not represent clients under the [Rental Housing] Act before the Commission,” and “[s]uch large law firms customarily have billing rates which are among the higher or highest levels in this jurisdiction.” The Commission further noted that “[Legal Aid] provide[d] no evidence to refute [Landlord's] counsel's claim that their lengthy experience in litigating claims under the Act and their lower fees than a number of [Legal Aid's] proposed rates clearly support the existence of a distinct specialized practice in, and market for, rent control and rental housing under the Act.” As a result, the Commission ordered both parties to submit affidavits on prevailing hourly rates from attorneys of comparable experience “who are ordinarily and customarily engaged in the practice of litigating actions in the ‘specialized’ field of rent control and rental housing under the Act similar to the instant case.”

Pursuant to the Commission's order, the Tenants submitted an affidavit from Erik Von Salzen, a real estate attorney with more than forty years of experience, who stated that his hourly rate as of counsel at McLeod, Watkinson & Miller LLP for “rent control and similar work” was $400. Von Salzen also stated...