DL v. DC , 924 F.3d 585 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2019 Decided May 21, 2019
No. 18-7004
DL, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-01437)
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.
2
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.
Opinion for the Court filed by Circuit Judge TATEL.
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
(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
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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 (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
4
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 (“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
(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
5
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
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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 increases in all goods. Id. Some
plaintiffs’ attorneys argued that this index failed to capture the
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true rate of inflationary change and began advancing a version
of the 1989 Laffey data updated with a different Bureau of
Labor Statistics index called the Legal Services Index (LSI),
which estimates price increases for the legal market
nationwide. Id. at 101–02. When the two were pitted against
each other, courts frequently found the LSI Laffey matrix more
persuasive. See id. (observing that “critics” of the USAO’s
Laffey matrix had “advocated, to some degree of success, for a
competing Laffey Matrix . . . that uses the Legal Services
Index”); see also Salazar v. District of Columbia, 809 F.3d 58,
65 (D.C. Cir. 2015) (affirming district court’s choice to apply
the LSI Laffey matrix over the USAO’s).
Since 2015, however, the USAO has undertaken a major
effort to replace the Laffey datasets by using a more current rate
survey as the base for a brand new matrix. For those figures,
the USAO turned to the annual Survey of Law Firm
Economics, published by ALM Legal Intelligence (“ALM”) in
conjunction with the National Law Journal. The off-the-rack
version of that survey publishes hourly rate data for thousands
of lawyers engaged in all types of practice, all over the country.
The USAO custom ordered a subset of the 2011 survey’s data
covering the “Washington, D.C. metro area,” defined by the
Census Bureau to include portions of Virginia, Maryland, and
West Virginia. Plaintiffs’ Exhibit 84, DL v. District of
Columbia, 1:05-cv-01437-RCL, ECF No. 566-17 (D.D.C. May
21, 2017), J.A. 1573. This tailored dataset summarizes
“standard hourly billing rates” for 350 attorneys, yielding
average rates hundreds of dollars below those reflected in the
LSI Laffey matrix. Id. The USAO intends to update ALM’s
2011 data for inflation using still another index focusing on
industry-specific price increases nationwide.
B.
This case began almost fifteen years ago when plaintiffs,
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parents of several children aged three to six, filed suit “alleging
a ‘pervasive and systemic’ breakdown in the” District of
Columbia’s compliance with IDEA resulting from the
District’s failure “to identify large numbers of disabled
children and delivering inadequate and delayed [educational]
services to many others.” DL v. District of Columbia, 860 F.3d
713, 718 (D.C. Cir. 2017). Following a protracted dispute
regarding class certification resulting in two separate trips to
this court, extensive motions practice, and two separate bench
trials, “the district court issued a 130-page opinion finding the
District liable” on most counts and ordered sweeping injunctive
relief. Id. at 719–20. We affirmed “in all respects.” Id. at 717.
As plaintiffs had prevailed on the majority of their claims,
fee litigation commenced. Although the parties contested many
issues in the district court, all but the hourly rate have dropped
out on appeal. Plaintiffs sought attorney fees based on the LSI
version of the Laffey matrix. The District offered the new
USAO matrix as an alternative. Both sides produced a pile of
evidence purporting to prove that their matrix better reflects the
relevant rates, including affidavits from economists and
attorneys; various commercially-available rate surveys; and
information regarding fees requested, awarded, and settled on
in other cases.
The district court began by finding that both matrices were
“presumptively” applicable to “complex federal litigation.” DL
v. District of Columbia, 267 F. Supp. 3d 55, 69 (D.D.C. 2017).
Comparing the two, however, the court was more persuaded by
the USAO’s new matrix, especially its statistically significant
sample size and “more narrowly defined” experience
categories. Id. at 69–70. Thus, despite plaintiffs’ objection that
the data underlying the USAO’s new matrix incorporates rates
for non-litigators outside the District, the court ordered
plaintiffs to recalculate their fees using the USAO’s rates. Id.9
at 72. Largely as a result of that order (in conjunction with a
few minor adjustments unchallenged on appeal), the requested
$9.76 million fee dropped to a $6.96 million award. Plaintiffs
appeal.
II.
Simply stated, the question before us is whether the district
court abused its discretion in determining that the hourly rates
in the USAO’s matrix are “reasonable.” Recall that IDEA
makes express a requirement that inheres in any statutory
provision for “reasonable attorney’s fees”: such fees must be
calculated using “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); accord Blum,
465 U.S. at 895 n.11 (explaining that this is part of what it
means to be “reasonable”). Recall also that once “a fee
applicant” has met the preliminary burden of “justifying the
reasonableness of the rates,” those rates are “presumed to
be . . . reasonable” unless and until the defendant offers
“equally specific countervailing evidence” supporting another
rate. Covington, 57 F.3d at 1107, 1109 (internal quotation
marks omitted). We will reverse a district court’s determination
that certain hourly rates are reasonable when there has been a
“clear misapplication of legal principles, arbitrary fact finding,
or unprincipled disregard for the record evidence.” Kattan ex
rel. Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C.
Cir. 1993), as amended (June 30, 1993); see also Koon v.
United States, 518 U.S. 81, 100 (1996) (“A district court by
definition abuses its discretion when it makes an error of
law.”).
A.
We begin with the District’s argument that plaintiffs failed
to meet their initial burden to support with specific evidence
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their claim that the LSI Laffey rates satisfy the statute’s
command. Our recent opinion in Salazar v. District of
Columbia, however, all but compels the conclusion that
plaintiffs cleared that bar. The Salazar plaintiffs relied on the
same types of evidence in essentially the same level of detail to
support the same rate matrix (for a slightly earlier year). 809
F.3d at 64–65. That evidence, we concluded, was more than
enough to pass the burden onto the District. Id. at 65 (“With
these numbers and submissions in the record, the district
court’s point that the LSI-adjusted matrix is probably a
conservative estimate of the actual cost of legal services in this
area, does not appear illogical.” (internal quotation marks
omitted)). The District has given us no reason to reach a
different conclusion on such a similar record.
B.
The meatier question, then, is whether the District satisfied
its rebuttal burden. The USAO’s new matrix formed the
cornerstone of the rebuttal case, and the district court treated
that matrix as “presumptively” applicable. DL, 267 F. Supp. 3d
at 69. We are at a loss to understand the basis of that
presumption, given that this court had yet to review the new
matrix. The proper inquiry, under the applicable legal
principles, was whether the District supported its matrix with
“equally specific countervailing evidence.” Covington, 57 F.3d
at 1109 (internal quotation marks omitted).
The District contends that the USAO’s more recent raw
data and statistically significant sample size make its matrix
superior to plaintiffs’ favored LSI Laffey matrix. Crucially,
however, those traits matter only if the data surveys the
relevant population. As plaintiffs’ expert, Dr. Michael
Kavanaugh, put it, “comparable prices are found by observing
comparable goods.” Second Kavanaugh Declaration ¶ 8, DL v.
District of Columbia, 1:05-cv-01437-RCL, ECF No. 566-11
11
(Apr. 26, 2017), J.A. 1380. For example, for someone house
hunting in Memphis, a survey of real estate prices in Seattle—
even one with a perfect response rate updated daily—would be
of no use. The same is true here. The USAO’s matrix is helpful
only if it canvasses the relevant type of lawyer, which it does
not.
To begin with, the USAO’s matrix incorporates rates for
the wrong types of practitioner. The parties and the district
court agree that this case qualifies as “complex federal
litigation.” DL, 267 F. Supp. 3d at 69. Yet rather than confine
its data to rates charged by attorneys practicing that genre of
litigation—or even just litigators in general—the survey that
the USAO drew from incorporates rates from all types of
lawyers. Respondents include real estate lawyers, family
lawyers, and insurance lawyers—lawyers manifestly not
offering “the kind and quality of services furnished” by these
plaintiffs’ attorneys, as the statute requires of comparators. 20
U.S.C. § 1415(i)(3)(C); accord Eley, 793 F.3d at 105 (fee
analysis should focus on “lawyers . . . doing the same type of
litigation” (emphasis omitted)). It is obvious that the rates
charged for, say, simple wills are lower than those for complex
federal litigation. Worse still, nothing in the record reveals
what percentage of respondents in the USAO’s custom cross-
section of the ALM data were litigators. For all we know, the
number could be anywhere from zero to all 350.
Compounding this first error, the USAO’s custom-ordered
dataset surveys lawyers far beyond the “community in which
th[is] action . . . arose.” 20 U.S.C. § 1415(i)(C)(3). Plaintiffs
brought this case on behalf of District of Columbia residents
regarding District of Columbia schools against the District of
Columbia. Yet the USAO matrix draws from lawyers who
practice in the entire “metro area” as defined by the United
States Census Bureau. The phrase “metro area” suggests
12
proximity, but—according to the Census Bureau’s definition—
that area stretches well beyond the District to cover thousands
of square miles over three states, from rural Madison County,
Virginia, to the eastern shore of Maryland, back to the foothills
of Jefferson County, West Virginia. Needless to say, this case
has no connection to most of those areas. Our court has held
that ordinarily “the relevant community is the one in which the
district court sits.” Donnell v. United States, 682 F.2d 240, 251
(D.C. Cir. 1982). Accordingly, our decisions refer to the
relevant community as the District of Columbia. See, e.g.,
Salazar, 809 F.3d at 64 (discussing “prices for legal services in
Washington, D.C.”); Covington, 57 F.3d at 1104 (discussing
evidence of rates “in the District of Columbia”). That general
rule fits comfortably with the facts of this case. Yet here, more
than half the data in the USAO’s customized dataset comes
from outside the District of Columbia, see Appellant’s Br. 20,
and District counsel acknowledges that it includes data from
throughout the three neighboring states, see Oral Arg. Rec.
28:04–28:22. Again, it is obvious, as District counsel
recognizes, that fees are lower in rural areas than in the District.
See Oral Arg. Rec. 31:04–31:30. Indeed, the District’s own
evidence shows that rates for legal services in the District of
Columbia are among the highest anywhere. National Law
Journal & ALM Legal Intelligence, The Survey of Law Firm
Economics, 139–41 (2011 ed.), J.A. 1485–87.
Confronted with these two flaws, the district court said
nothing about them, resting exclusively on its statement that
the USAO’s matrix was “presumptively applicable.” DL, 267
F. Supp. 3d at 69. In doing so, the court abused its discretion
twice over. First, by failing to determine whether the USAO’s
matrix satisfies Congress’s statutory baseline, the court
committed a “clear misapplication of legal principles.” Kattan,
995 F.2d at 278; see also Koon, 518 U.S. at 100. And second,
13
it “disregard[ed] . . . record evidence” that its chosen matrix
failed to achieve that baseline. Kattan, 995 F.2d at 278.
Calling in reinforcements, the District points to a growing
consensus among the district judges in this circuit that the
USAO matrix is superior to Laffey. See, e.g., Lewis v. District
of Columbia, No. 1:15-cv-521-JEB, 2018 WL 6308722, at *8
(D.D.C. Dec. 3, 2018) (collecting cases). Many of those cases
repeat the district court’s fundamental error here: none finds,
based on record evidence, that the new matrix is based on rates
for complex federal litigators in the District. See id. at *9 (no
response to the plaintiff’s objection that the new USAO matrix
“reflects all types of legal services”); Gatore v. United States
Department of Homeland Security, 286 F. Supp. 3d 25, 42–43
(D.D.C. 2017) (no response to observation that the USAO’s
survey may be “over-inclusive”); Electronic Privacy
Information Center v. United States Drug Enforcement
Administration, 266 F. Supp. 3d 162, 170–71 (D.D.C. 2017)
(no discussion of survey composition); Clemente v. Federal
Bureau of Investigation, No. 1:08-cv-1252-BJR, 2017 WL
3669617, at *5 (D.D.C. Mar. 24, 2017) (merely describing the
new USAO matrix as “measur[ing] rates in the legal services
industry”). Others apparently lacked the benefit of any briefing
on the new matrix’s flaws. See, e.g., Wadelton v. Department
of State, No. 1:13-cv-412-TSC, 2018 WL 4705793, at *12
(D.D.C. Sept. 30, 2018) (adopting new USAO matrix sua
sponte “[a]lthough the parties ha[d] not briefed” it); National
Security Counselors v. Central Intelligence Agency, No. 1:11-
cv-444-BAH, 2017 WL 5633091, at *17 (D.D.C. Nov. 21,
2017) (employing the new USAO matrix after plaintiffs offered
“no analysis of the USAO’s newest methodology”). So, even
sympathizing with the district court’s appetite for more recent
data, we are unpersuaded by its decision to embrace newer but
irrelevant figures.
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Despite the evidentiary defects in the record, the District
offers an alternative basis for affirming: its supplemental proof
demonstrates that the USAO’s matrix accurately reflects
complex litigation rates in the District of Columbia. But the
district court made no findings about the evidence the District
uses to back up that claim, and some of that data appears to be
of dubious value. For example, the District’s primary redoubt
comprises two sets of nationwide data from the 2014 ALM
survey. But it is not at all obvious that these nationwide datasets
are useful comparators for rates in the District. See National
Law Journal & ALM Legal Intelligence, The Survey of Law
Firm Economics 139–41 (2011 ed.), J.A. 1485–87 (showing
that rates in the District substantially exceed those in most other
jurisdictions). Nonetheless, mindful of the district court’s
primary factfinding role, we leave it for that court to assess on
remand the impact, if any, of the District’s remaining market
evidence and to take further evidence if necessary to arrive at a
“reasonable rate.”
C.
The District argues that “even if” we reject the USAO’s
new matrix—as we now have—“that does not mean that
[plaintiffs] were entitled to rates under the LSI [Laffey]
Matrix.” Appellee’s Br. 25. But it offers one and only one
argument for rates in between the two: that this court has held
that attorneys in IDEA cases should not be compensated at
Laffey rates. Id. That argument mischaracterizes our precedent.
True, we have held that IDEA cases sometimes fall within a
submarket characterized by below-Laffey rates. Reed, 843 F.3d
at 525. But such cases involved individual IDEA plaintiffs
litigating non-complex cases primarily before an
administrative body. See id. (noting individual “IDEA litigants
may not have discovery and pre-trial exchanges of the sort
found in other federal litigation”); Eley, 793 F.3d at 105 n.6
(discussing “representation in IDEA administrative due
15
process hearings” (internal quotation marks omitted)); accord
Second Kohn Affidavit ¶¶ 9–17, No. 1:05-cv-01437-RCL,
ECF No. 566-5 (D.D.C. Apr. 27, 2017), J.A. 1359–61
(describing typical IDEA case and noting that, “in an even
unusually complex individual IDEA case appealed to the
district court,” the “full record . . . would typically fit into two
banker’s boxes”). Indeed, we have always left open “the
possibility that . . . fee applicants may be able to demonstrate
that IDEA cases are ‘complex federal litigation’ to which the
Laffey Matrix presumptively applies.” Reed, 843 F.3d at 525.
And here the district court found that this case qualifies as
“complex federal litigation,” DL, 267 F. Supp. 3d at 69, a
finding the District has not challenged, see Appellee’s Br. 22
n.8. It therefore may not claim that fees from individualized
IDEA actions are appropriate comparators.
To be sure, the district court identified other concerns
regarding the LSI Laffey matrix, including (1) the age of the
raw data; (2) whether it captures a truly representative sample
of complex federal litigators; and (3) the grouping of attorneys
into just five experience bands. DL, 267 F. Supp. 3d at 69–70.
These observations suggest that as time passes, the Laffey
matrix may well—like shoulder pads, eight-tracks, and other
’80s fads before it—be losing its shine. In this particular case,
however, the District raised no argument that these issues
justify rates somewhere between the two matrices. See
Appellee’s Br. 25. Therefore, it has forfeited any such
contention. Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir.
2019) (“A party forfeits an argument by failing to raise it in his
opening brief.”).
D.
One last issue remains: the rates for plaintiffs’ only lawyer
who regularly bills fee-paying clients, Cyrus Mehri. We see no
reason why the rates that apply to the rest of plaintiffs’ lawyers
16
would yield inadequate compensation for Mehri’s services.
Plaintiffs contend that Mehri is instead entitled to his usual
billing rate, but his sparse affidavit tells little about whether his
relatively minimal contributions to the case differ sufficiently
from his colleagues’ to warrant a different methodology. Mehri
Affidavit, No. 1:05-cv-01437-RCL, ECF No. 537-17 (Sept. 26,
2016), J.A. 428–29 (asserting he “did work related to class
certification” and tried to “broker a resolution to this case”). As
Eley instructs, the focus is properly on the market rate “charged
by for-profit lawyers” for “the same type of litigation.” 793
F.3d at 105. And although stating in his affidavit that he
charges the same rate no matter what type of work he performs,
Mehri nowhere represents that a client on the market would
hire him at that rate for the types of services he performed in
this case. Accordingly, the district court did not abuse its
discretion by compensating Mehri using the same method as
his co-counsel.
III.
Not so long ago, the prevailing belief was that parties
would often be able to agree on reasonable attorney’s fees. See
Hensley, 461 U.S. at 437 (“Ideally, of course, litigants will
settle the amount of a fee.”). We regret that this prophecy has
gone unfulfilled and fervently hope that practitioners in this
circuit—on both the plaintiff and defense sides of the bar—will
work together and think creatively about how to produce a
reliable assessment of fees charged for complex federal
litigation in the District. In the meantime, however, we must
discharge our duty to ensure that the adversarial alternative
produces results that respect Congress’s mandates. Because the
fee award in this case falls short of that goal, we vacate it and
remand for further proceedings consistent with this opinion.
So ordered.
SENTELLE, Senior Circuit Judge, dissenting: Ambrose
Bierce defined a lawyer as “[o]ne skilled in circumvention of the
law.” Ambrose Bierce, The Unabridged Devil’s Dictionary 147
(Univ. of Georgia Press 2000). Though I do not suggest that this
is an accurate description, I nonetheless would observe that the
jurisprudence of IDEA litigation attorney-fee awards well
establishes that lawyers and jurists are professionals skilled in
complicating the law. The jurisprudential odyssey on this sea
began with a rather straightforward mandate from Congress in
20 U.S.C. § 1415(i)(3), a subsection headed “Jurisdiction of
district courts; attorney fees.” (Emphasis added.)
More specifically, Congress provided that, “[i]n any action
or proceeding brought [under the IDEA provision providing
judicial relief], the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs.” 20 U.S.C.
§ 1415(i)(3)(B)(i). While the following subsections provide
some limitations and directions for the computation of the
award, the basic task created by Congress and placed within the
jurisdiction of the district court is a factual determination of the
reasonableness of attorneys’ fees to be awarded as part of the
costs in IDEA actions. The congressional language would seem
to rather straightforwardly call for findings of fact, concerning
the reasonableness of attorneys’ fees to be awarded. The district
court in the present controversy made such findings which we
are now called upon to review.
“[T]he standard governing appellate review of a district
court’s finding of [facts] is that set forth in Federal Rule of Civil
Procedure 52(a).” Anderson v. Bessemer City, 470 U.S. 564,
573 (1985). Rule 52(a) provides that “[f]indings of fact,
whether based on oral or other evidence, must not be set aside
unless clearly erroneous . . . .” Not only would it seem apparent
that this is the standard of review we should be applying to the
issues before us, it seems especially appropriate where the
question is expressly described as within the “jurisdiction of
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district courts” in the enactment creating the right to such a
finding. 20 U.S.C. § 1415(i)(3).
Indeed, we have expressly held in previous IDEA class
litigation that “[w]e review the district court’s fee award for
abuse of discretion, and will not upset its hourly rate
determination absent clear misapplication of legal principles,
arbitrary factfinding, or unprincipled disregard for the record
evidence.” Eley v. District of Columbia, 793 F.3d 97, 103 (D.C.
Cir. 2015) (emphasis added) (internal quotation marks and
citations deleted). In spite of this standard, in the present case,
the majority reviews the district court’s determination of the
factual questions before us, not for compliance with Rule 52(a),
nor for abuse of discretion, but as if it were a question of law.
The majority asks not whether the district court committed
a clear misapplication of legal principles, or arbitrary
factfinding, or unprincipled disregard for record evidence, but
rather whether the district court’s findings of fact fit within a
detailed grid, the Laffey Matrix, which might be construed as a
proffer by the prevailing party for findings of fact, but more
closely resembles a detailed regulation adopted by some
government agency after an appropriate period of notice and
comment.
The district court found another matrix to be more factually
appropriate. The making of that factual determination, under the
law in general and under the governing statute in particular, is
the district court’s province. I grant that we as an appellate
reviewing court have participated in the establishment of this
legislation-like matrix. I further realize that we have the
authority to establish precedent binding upon district courts and
upon panels of this court such as this one. LaShawn A. v. Barry,
87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Nonetheless, I
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have always understood our authority to make binding
precedents to govern matters of law, not findings of fact. The
present controversy concerns a matter of fact. This, under the
binding precedent of both this circuit and the Supreme Court and
the Rules of Civil Procedure is within the discretion of the
district court, subject only to the limited review described above.
While not necessary to my dissent, I further note that
appellants proffered nothing to convince me that the LSI Matrix
preferred by them is inherently more appropriate for the findings
required by the district court in this case than the USAO Matrix
relied upon in the district court’s findings. Appellants’
argument rests on the proposition that the award should have
been based on fees determined by survey of a specific
subcategory of attorneys out of the several set forth in their
preferred matrix: specifically, practitioners in complex federal
litigation in Washington, D.C. The matrix employed by the
district court instead considered the rates of a broader sampling
of attorneys from a broader geographic area, including not only
the District of Columbia, but also adjacent portions of three
states. It is not apparent how this was an abuse of discretion of
the sort that would make the court’s determination reversible
under the standard set forth in the rules and blessed in Anderson
v. Bessemer City, and a multitude of other cases.
Appellants seem to argue that the district court’s
determination was inconsistent with Congress’s instructions in
section 1415(i)(3)(C). That section mandates that an IDEA fee
award “shall be based on rates prevailing in the community in
which the action or proceeding arose for the kind and quality of
services furnished.” It does not mandate that the community
should be limited to a “community” defined as only the largest
municipality in a region, or to the highest priced professional
practicing in that limited community.
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As the purpose of Congress in setting forth the general
limitations of subsection (C) appears to encourage the
determination of a market for assessing the reasonableness of
fees, it would seem that an analysis of the fitness of either
matrix to that determination could, without violating the
standard under which we review factfinding, include reflecting
on the reasonableness of persons obtaining legal representation
in such a hypothetical market. It might be that those persons
would choose the most expensive professionals for the most
expensive part of the market. While such conduct might not be
unreasonable, neither is it inherently unreasonable that they
might choose a less imposing or less expensive attorney who is
nonetheless trusted and competent to do the work in the case. It
may shock counsel before us to learn, but it is not necessary in
every case to have the most specialized or the most expensive
counsel in order to receive competent legal services. In any
event, it is not arbitrary fact finding for the judge to conduct an
analysis of the evidence that is consistent with such supposition.
In short, I find no abuse of discretion or other reversible error.
My colleagues disagree. I respectfully dissent.