Young v. Sarles , 197 F. Supp. 3d 38 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEX YOUNG,
Plaintiff,
Civil Action No. 14-1203 (BAH)
v.
Judge Beryl A. Howell
RICHARD SARLES, General Manager,
Washington Metropolitan Area Transit
Authority
Defendant.
MEMORANDUM OPINION
The plaintiff, Alex Young, successfully sought a permanent injunction barring the
defendant, the Washington Metropolitan Area Transit Authority (“WMATA”), from interfering
with his practice of performing music in the vicinity of WMATA station entrances and accepting
donations from passersby, a practice referred to as “busking.” Having prevailed in his effort to
vindicate his rights under the First Amendment, the plaintiff has sought reimbursement, pursuant
to 42 U.S.C. § 1988, of attorneys’ fees and litigation costs he incurred in pursuing both his
underlying claim and his present request for attorneys’ fees. While WMATA does not dispute
that the plaintiff is entitled to reimbursement of reasonably incurred fees, the parties dispute the
rate at which the plaintiff must be reimbursed, as well as the degree to which certain hours for
which the plaintiff seeks reimbursement were reasonably billed. As such, pending before the
Court is the plaintiff’s motion for attorneys’ fees and costs. Pl.’s Mot. Att’ys.’ Fees & Costs,
ECF No. 23. For the reasons set forth below, the plaintiff’s motion is granted in part and denied
in part.
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I. BACKGROUND
The present fee petition arises out of the plaintiff’s challenge to a WMATA regulation
prohibiting commercial activity on WMATA station grounds and premises. See generally
Compl., ECF No. 1. Contending that this regulation unconstitutionally infringed upon his First
Amendment right of expression, the plaintiff sought a preliminary injunction barring
enforcement of the regulation as applied to his practice of busking outside of various WMATA
stations. Id. Following a hearing to consider the merits of the plaintiff’s claim, the Court
granted the plaintiff’s request and preliminarily enjoined WMATA from enforcing the offending
regulation to prevent the plaintiff from busking on certain “free” areas on WMATA property.
See Order Granting Prelim. Inj. Relief, ECF No. 13. Thereafter, the Court granted, as conceded,
the plaintiff’s subsequent motion for summary judgment and converted the preliminary
injunction to a permanent injunction. Minute Order, dated Feb. 24, 2015.
With the merits of the plaintiff’s action against WMATA thus resolved, the plaintiff now
seeks reimbursement of the attorneys’ fees and litigation costs he incurred in litigating his
successful First Amendment claim. Specifically, the plaintiff requests reimbursement, pursuant
to 42 U.S.C. § 1988, for fees billed by three attorneys who together litigated the plaintiff’s
underlying claim. The plaintiff was represented first in this matter by a Staff Attorney for the
Rutherford Institute, a nonprofit organization that provides legal assistance on a variety of civil
liberties matters. This Staff Attorney drafted an initial demand letter to WMATA asserting the
plaintiff’s First Amendment right to perform unimpeded on certain WMATA property. Pl.’s
Mem. Supp. Mot. Att’ys’ Fees & Costs (“Pl.’s Mem.”) at 3–4, ECF No. 23; Decl. Douglas R.
McKusick (Apr. 17, 2015) (“McKusick Decl.”) ¶ 3, ECF No. 23-5. After WMATA rejected the
plaintiff’s request to refrain from enforcing its regulations against him, the Staff Attorney
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engaged two “Participating Attorneys,” each of whom is a solo practitioner licensed to practice
in the District of Columbia. Pl.’s Mem. at 4–5; Fee Aff. Jeffrey L. Light (Arp. 18, 2015) (“Light
Aff.”) ¶¶ 2–3, ECF No. 23-1; Fee Aff. Sean R. Day (Arp. 17, 2015) (“Day Aff.”) ¶¶ 2, 5, ECF
No. 23-3. These Participating Attorneys prepared the plaintiff’s submissions before this Court in
support of his First Amendment claim and subsequent request for attorneys’ fees. Id.In total, the plaintiff initially sought reimbursement of $38,344.40 in attorneys’ fees and
costs, which included $29,317.30 stemming from the 43.9 his attorneys billed litigating the
merits of his underlying claim, $3,799.00 for 5.8 hours his attorneys devoted to preparing the
instant fee request, and $5,228.10 for 7.9 hours billed in connection with the plaintiff’s reply in
support of his fee request. Pl.’s Mem. at 7–8; Pl.’s Reply Supp. Mot. Att’ys.’ Fees & Costs
(“Pl.’s Reply”) at 1, ECF No. 28. To arrive at his requested fee award, the plaintiff proposes a
reimbursement rate for each of his attorneys based on figures provided by the “[a]djusted
([u]pdated)” Laffey fee matrix, which the Court refers to below as the “LSI/Salazar Matrix.” 1
Under this matrix, based on the number of years each of his attorneys has practiced, the plaintiff
originally requested reimbursement for the 4.6 hours billed by his public interest attorney at an
hourly rate of $789.00 and, for the 53 hours billed by the two Participating Attorneys, who
prepared and filed his submissions in this Court, at an hourly rate of $655.00. Id.During the course of briefing the present petition, the plaintiff subsequently revised his
request to include the additional hours his attorneys’ billed in connection with the ongoing fee
1
Established in Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part
on other grounds, 746 F.2d 4 (D.C. Cir. 1984), the Laffey Matrix recommends a presumptive maximum hourly rate
for attorneys engaged in “complex federal litigation,” id. at 372. In the years since it was initially proposed, the
Laffey Matrix has spawned two versions: (1) a version maintained by the U.S. Attorney’s Office for the District of
Columbia, which is linked to inflation, as measured by the Consumer Price Index for all items in the Washington,
DC area (“USAO Laffey Matrix”); and (2) an “enhanced” version, first approved in Salazar v. District of Columbia,
123 F. Supp. 2d 8 (D.D.C. 2000), which is adjusted for inflation using the more rapidly rising Legal Services Index
of the nationwide Consumer Price Index (“LSI/Salazar Matrix”). See Jones v. District of Columbia, No. 15-CV-155
(BAH), 2015 WL 9907797, at *1, n.1 (D.D.C. Oct. 29, 2015).
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litigation and reflect the rates provided by the current LSI/Salazar Matrix for his attorneys’
current levels of experience. See Pl.’s Mem. at 8; Pl.’s Reply at 8–10; Pl.’s Supp. Mats. Supp.
Mot. Att’ys.’ Fees & Costs (“Pl.’s Supp.”), Ex. 10 (Updated Time Sheets), ECF No. 33-12. As a
result of these revisions, the plaintiff’s final requested award totals $50,515.50, including: (1) 4.6
hours billed by his public interest attorney, at an hourly rate of $796.00; (2) 15.8 hours billed by
his senior Participating Attorney, also at an hourly rate of $796.00; (3) 51.1 hours billed by his
junior Participating Attorney, at an hourly rate of $661.00; and (4) $500 in litigation costs. Id.II. LEGAL STANDARD
Under the general federal fee-shifting provision, courts may award “a reasonable
attorneys’ fee” to prevailing private parties in any action or proceeding to enforce a wide variety
of federal civil rights statutes. 42 U.S.C. § 1988(b). In principle, “[a] reasonable fee is one that
is “adequate to attract competent counsel, but that does not produce windfalls to attorneys.’”
West v. Potter, 717 F.3d 1030, 1033 (D.C. Cir. 2013) (quoting Blum v. Stenson, 465 U.S. 886,
897 (1984)).
The D.C. Circuit has developed a three-part analysis for assessing whether a requested
fee award is reasonable in a particular case. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C.
Cir. 2015). “First, the court must determine the number of hours reasonably expended in
litigation. Second, it must set the reasonable hourly rate. Finally, it must determine whether use
of a multiplier is warranted.” Id. (internal citations and quotations omitted). 2 With regard to the
proposed hourly rate, the Court considers three sub-elements: “(1) ‘the attorney[’s] billing
practices;’ (2) ‘the attorney[’s] skills, experience, and reputation;’ and (3) ‘the prevailing market
2
Since the plaintiff’s requested fee award in this case includes no proposed multiplier, see generally Pl.’s
Mem., the discussion that follows addresses only the number of hours billed by the plaintiff’s attorneys and the rate
at which this time should be compensated.
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rates in the relevant community.’” Id. (quoting Covington v. District of Columbia, 57 F.3d 1101,
1107 (D.C. Cir. 1995)). In evaluating the factors that inform the appropriate reimbursement rate,
there is a “strong presumption that the fee yielded by the now-ubiquitous ‘lodestar’ method,
which bases fees on the prevailing market rates in the relevant community, is reasonable.” West,
717 F.3d at 1034 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)).
“The ‘fee applicant bears the burden of establishing entitlement to an award,
documenting the appropriate hours, and justifying the reasonableness of the rates.’” Eley, 793
F.3d at 100 (quoting Covington, 57 F.3d at 1107–08). Once an applicant meets this initial
burden, a presumption applies that the number of hours billed and the hourly rates requested are
reasonable. Covington, 57 F.3d at 1110–11; see also Jackson v. District of Columbia, 696 F.
Supp. 2d 97, 101 (D.D.C. 2010) (citing Blackman v. District of Columbia, 677 F. Supp. 2d 169,
172 (D.D.C. 2010)). At that point, the burden shifts to the opposing party to “provide specific
contrary evidence tending to show that a lower rate would be appropriate.” Covington, 57 F.3d
at 1109–10 (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1326
(D.C. Cir. 1982)).
III. DISCUSSION
Opposing the present fee petition, WMATA does not dispute that the plaintiff, having
obtained his requested injunctive relief, is entitled to reimbursement of reasonable attorneys’
fees. Def.’s Opp’n Pl.’s Mot. Att’ys.’ Fees & Costs (“Def.’s Opp’n”) at 1, ECF No. 26.
Nonetheless, WMATA challenges both the reasonableness of certain hours billed by the
plaintiff’s attorneys, as well as the rate at which the plaintiff will be reimbursed for his attorneys’
time. Id. The discussion that follows addresses each of these objections in turn, beginning with
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a determination of the number of hours reasonably billed by the plaintiff’s attorneys before
turning to consideration of the appropriate rate at which these hours should be reimbursed.
A. The Hours Billed by the Plaintiff’s Attorneys are Reasonable
WMATA contests two categories of hours billed by the plaintiff’s attorneys in connection
with his successful First Amendment action. As explained below, however, WMATA fails to
demonstrate that either category of hours was unreasonably billed.
First, WMATA takes issue with the plaintiff’s request for reimbursement for his public
interest attorney’s pre-litigation efforts to resolve the plaintiff’s objection to the challenged
WMATA regulation. In particular, WMATA objects to full reimbursement under the
LSI/Salazar Matrix for 4.1 hours this attorney billed to research and compose the plaintiff’s
initial demand letter to WMATA. Id. at 3. According to WMATA, reimbursement at this
attorney’s LSI/Salazar rate, which yields a total award of $3,195.45, is “on its face
unreasonable.” Id. Contending that this work “could have been performed by a law clerk or an
attorney at a much lower rate,” WMATA asks the Court to reimburse the plaintiff at an hourly
rate not to exceed $370.00. Id.
At the outset, while styled as a challenge to reasonableness of these hours, WMATA’s
objection more directly targets the rate at which the plaintiff will be reimbursed for his public
interest attorney’s efforts. In any event, as the plaintiff explains, this attorney drew upon his
expertise in First Amendment jurisprudence to research and compose the plaintiff’s initial
demand letter. Pl.’s Reply at 5–6. While these tasks certainly could have been completed by a
more junior attorney, it strains credibility to suggest that an attorney lacking similar expertise
and experience would compose a letter of similar quality in four hours. Further, WMATA offers
no support for its suggestion that the preparation of the plaintiff’s demand letter must be
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reimbursed differently than this attorney’s subsequent efforts before this Court. See generally
Def.’s Opp’n. Finally, WMATA provides no basis for capping the plaintiff’s reimbursement for
these hours at a rate of $370.00, which corresponds to the rate WMATA proposes for one of the
Participating Attorneys, who later assisted in preparing the plaintiff’s submissions before this
Court. Id. at 3.
Absent any authority suggesting that the plaintiff’s public interest attorney must be
compensated at a reduced rate, and no more generously than his less experienced co-counsel, for
his initial efforts on the plaintiff’s behalf, the Court declines WMATA’s invitation to impose
such a cap. Moreover, to the extent that WMATA contests the number of hours devoted to the
preparation of the plaintiff’s initial demand letter, the Court agrees with the plaintiff that the 4.1
hours billed by the plaintiff’s public interest attorney to prepare the four-page letter, see Pl.’s
Mot. Prelim. Inj., Ex. 2 (Ltr. from Douglas R. McKusick to Ronald Pavlik, dated Dec. 16, 2013),
ECF No. 2-2, were reasonable.
WMATA’s second challenge more directly addresses the reasonableness of the hours
billed by the plaintiff’s attorneys. In particular, WMATA challenges the plaintiff’s request for
reimbursement for 7.4 hours billed by one of the Participating Attorneys in connection with his
submission in support of his Motion for Summary Judgment, ECF No. 17. Def.’s Opp’n at 4.
According to WMATA, the “substance” of the plaintiff’s complaint and motion for a preliminary
injunction was “in large part incorporated wholesale” into the plaintiff’s later submission
requesting summary judgment on his First Amendment claim. Id. In support, WMATA
highlights four pages of the plaintiff’s memorandum in support of his summary judgment
motion, which are largely identical to language included in the plaintiff’s prior motion for a
preliminary injunction. Id. (citing Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Summ. J. Mem.”) at
7
13–17, ECF No. 17). Apparently contending that all hours billed in connection with this filing
were unreasonable, WMATA opposes reimbursement of any fees incurred in the “drafting the
memorandum in support of [the plaintiff’s] motion for summary judgment.” Id.
As an initial matter, while WMATA is correct that certain arguments advanced by the
plaintiff in support of his motion for summary judgment track closely those set out in his earlier
request for a preliminary injunction, these similarities are largely understandable. Indeed, the
plaintiff’s motion for summary judgment was filed less than two months after the Court granted
his initial request for a preliminary injunction, with the plaintiff forgoing formal discovery before
seeking a permanent injunction. See Minute Order, dated Aug. 14, 2014; Pl’s Summ. J. Mem.
(filed Oct. 7, 2014). 3 The resulting submission spanned twenty-two pages and included the
aforementioned brief, as well as a draft order and statement of undisputed material facts, as
required under the Court’s local rules. See LCvR 7(c), (h)(1). WMATA apparently does not
object to reimbursement for hours devoted to preparation of these accompanying materials,
which presumably account for some portion of the 7.4 hours billed in connection with the
plaintiff’s summary judgment motion.
In any event, the WMATA’s conclusory assertions alone are insufficient to demonstrate
that the hours billed in connection with his summary judgment brief are unreasonable. In
addition to the duplicative language mentioned above, the plaintiff’s brief included a summary of
the factual allegations underlying his claim and the WMATA regulations subject to challenge, as
well as a discussion of the plaintiff’s standing to pursue his claim in federal court and a thorough
3
WMATA’s outright objection to hours billed in connection with the plaintiff’s request for summary
judgment is somewhat ironic. In fact, WMATA initially objected to the plaintiff’s decision to forgo discovery,
which WMATA asserted would “unreasonably truncate the proceedings.” Am. Meet & Confer Statement at 4, ECF
No. 15. Only after the plaintiff moved for summary judgment, prompting a four-month stay of proceedings to allow
WMATA to review its regulations, see Minute Orders, dated Oct. 21, 2014 and Dec. 22, 2014, did WMATA
ultimately decline to oppose the plaintiff’s request for a permanent injunction, see Status Report, ECF No. 21.
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analysis of the degree to which busking is protected under the First Amendment. Pl.’s Summ. J.
Mem. at 1–13. As the plaintiff explains, preparation of this newly added material involved
significant additional research into unsettled areas of First Amendment law, as well as additional
timefor which the plaintiff does not seek reimbursementinto the history of busking. See
Pl.’s Reply at 6–8. As such, in light of the numerous issues addressed for the first time in
support of the plaintiff’s dispositive motion, the Count finds no basis for concluding that 7.4
hours billed by the plaintiff’s counsel in connection with this submission were unreasonable.
Having thus determined that the hours for which the plaintiff seeks reimbursement were
reasonable, the Court next considers the hourly rate at which this time will be compensated.
B. The Plaintiff’s Proposed Reimbursement Rates are Reasonable
In response to the plaintiff’s fee request, WMATA apparently concedes that the
plaintiff’s successful First Amendment claim, as well as his subsequent fee petition, qualify as
“complex federal litigation” giving rise to reimbursement at rates set out under a Laffey-derived
fee matrix. See Def.’s Opp’n at 3–5 (urging the Court to award fees based on the USAO Laffey
Matrix).
Nonetheless, the parties contest which Laffey matrix should be used to identify a
reasonable reimbursement rate for the plaintiff’s attorneys’ time. In particular, while the
plaintiff’s proposed fee award incorporates rates provided by the LSI/Salazar Matrix, WMATA
contends these rates are overly generous and asks the Court to look instead to the USAO Laffey
Matrix. Relying on its preferred matrix, WMATA proposes a reimbursement rate of $520.00 per
hour for the plaintiff’s public interest attorney, and $460.00 and $370.00 per hour, respectively,
for the two Participating Attorneys who prepared the plaintiff’s submissions to the Court. Id. at
9
1–3, 5. As a result, WMATA proposes a total fee award of $23,424.00, which represents a
nearly forty percent reduction from the plaintiff’s initial requested award.
Consistent with the burden-shifting regime set out by the D.C. Circuit, the discussion that
follows considers first whether the plaintiff has met his burden of demonstrating that his
requested rates are reasonable before then addressing WMATA’s arguments in support of its
preferred reimbursement rates.
1. The Plaintiff Meets His Burden of Demonstrating that His Requested
Rates are Reasonable
As the D.C. Circuit recently emphasized, the party seeking reimbursement of attorneys’
fees under federal fee-shifting statutes bears the initial burden of justifying any requested
reimbursement rate. Eley, 793 F.3d at 100. To do so, the fee applicant must present evidence,
beyond his attorneys’ own affidavits, demonstrating that “the requested rates are in line with
those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience and reputation.” Id. (quoting Blum v. Stenson, 465 U.S. at 895). Here,
reviewing the evidence submitted in support of the pending fee application, as supplemented by
the plaintiff’s submissions in response to recent developments clarifying the scope of the
plaintiff’s evidentiary burden, the plaintiff has met this initial burden.
Along with his initial fee petition, the plaintiff submitted affidavits from each of his
attorneys describing their experience and expertise, as well as their typical billing practices in
litigating civil rights cases. These submissions demonstrate that each of the plaintiffs’ attorneys
maintains significant experience in litigating civil rights actions in this jurisdiction and other
federal courts throughout the country. See Light Aff. ¶ 4; Day Aff. ¶ 6; McKusick Decl. ¶ 3.
Likewise, declarations from the Participating Attorneys suggest that these attorneys either
customarily charges rates comparable to those set out in the LSI/Salazar Matrix, Light Aff. ¶ 5
10
(explaining that the attorney charges paying clients at such rates), or explicitly agreed with the
plaintiff in this case to seek compensation at such rates, Day Aff. ¶ 10 (indicating that, with no
expectation of a damages award, the attorney and the plaintiff “agree[d] and expect[ed]” that the
attorney would receive fees at the rate set out in the LSI/Salazar Matrix).
Moreover, following the D.C. Circuit’s decision in Eley v. District of Columbia, which
clarified the evidentiary burden the plaintiff bears in connection with the instant fee application,
see 93 F.3d at 100, the plaintiff requested, and the Court granted, an opportunity to submit
additional materials in support of his proposed reimbursement rates, see Minute Order, dated
July 27, 2015. The plaintiff subsequently submitted supplemental material designed to
demonstrate that the plaintiff’s requested reimbursement rates are in line with the prevailing
market rates for comparable legal services in the Washington, D.C. area. See Pl.’s Supp., ECF
No. 33. Specifically, the plaintiff submitted:
(1) An affidavit from one of the plaintiff’s Participating Attorneys providing additional
information regarding that attorney’s practice of charging paying clients at rates
based on the LSI/Salazar Matrix and explaining that this attorney has received
reimbursement at such rates in a prior civil rights action before the District of
Columbia Court of Appeals, see Fourth Fee Aff. Jeffrey R. Light (Aug. 10, 2015),
ECF No. 33-15;
(2) A declaration from the economist who developed the LSI/Salazar Matrix explaining
the distinction between that matrix and the USAO Laffey Matrix and averring that the
LSI/Salazar Matrix more closely approximates actual prevailing rates for legal
services in the Washington, D.C. area, see Decl. Michael Kavanaugh (June 1, 2010),
ECF No. 33-1;
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(3) Declarations from three civil rights attorneys practicing in the Washington D.C. area,
who attest to the appropriateness of LSI/Salazar-level reimbursement rates in
complex federal civil rights litigation, see Decl. Paul D. Clement (Mar. 10, 2014),
ECF No. 33-5; Aff. Rachel Meeropol (Aug. 10, 2015), ECF No. 33-13; Aff. Robert
Corn-Revere (Aug. 11, 2015), ECF No. 33-14;
(4) Two articles from the National Law Journal indicating that private attorneys in the
Washington, D.C. area charged rates roughly equivalent to the rates provided under
the LSI/Salazar Matrix in matters involving complex federal litigation, see Pl.’s
Supp., Ex. 2, ECF No. 33-3; id., Ex. 3, ECF No. 33-4.
(5) An article from Corporate Counsel listing $649.24 as the average hourly billing rate
for partners in Washington, D.C.-area law firms in 2012, which generally corresponds
to the rates applicable to attorneys with more than ten years of experience provided by
the LSI/Salazar Matrix for that year, see id., Ex. 9, ECF No. 33-11;
(6) National Law Journal billing surveys from 2012 and 2013 reflecting high, low, and
median billing rates for partners and associates at numerous Washington, D.C.-area
law firms, with many median rates exceeding the maximum rate provided by the
LSI/Salazar Matrix in those years, see id., Ex. 4, ECF No. 33-6;
(7) A “Partner Compensation Survey” prepared by a legal services consulting firm in
2014 showing that the average hourly rate for partners in the Washington, D.C. area
was $662.00 in 2012 and $705.00 in 2014, see id., Ex. 8 at 9, ECF No. 33-10.
(8) Three Orders, issued by Judges on this Court or the District of Columbia Superior
Court, awarding attorneys’ fees based on rates provided by the LSI/Salazar Matrix
under fee-shifting statutes; see id., Ex. 7 (Omnibus Order, Ortberg v. Goldman Sachs,
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No. 2010 CA 9043 B (D.C. Apr. 11, 2014), ECF No. 33-7); id., Ex. 6 (Order, Ricks v.
Barnes, No. 05-1756 (HHK) (D.D.C. May 12, 2008)), ECF No. 33-8; id., Ex. 7
(Order, Smith v. District of Columbia, No. 00-894 (GK) (D.D.C. Dec. 18, 2006)),
ECF No. 33-9.
This Court recently considered similar evidence in Makray v. Perez, No. 12-CV-520
(BAH), 2016 WL 471271 (D.D.C. Feb. 8, 2016). There, as here, the plaintiff submitted, in
addition to her counsel’s own affidavits describing his extensive experience litigating federal
civil rights actions; a declaration from the economist who designed the LSI/Salazar Matrix
describing the advantages of that matrix vis-à-vis the USAO Laffey Matrix; declarations from
experienced civil rights litigators, who averred that their customary billing rates were
comparable to those set out in the LSI/Salazar Matrix; and billing surveys indicated that the
LSI/Salazar Matrix closely approximates the actual prevailing market rate for legal services in
the District of Columbia. See id. at *16. As in Makray, the instant fee application is supported
by “evidence falling into each of the relevant categories identified by the D.C. Circuit” as
relevant to determining whether a requested reimbursement rate is reasonable. Id. (citing Eley,
793 F.3d at 101). Taken together, and consistent with this Court’s reasoning in Makray, this
evidence persuasively demonstrates that the plaintiff has met his initial burden of demonstrating
that rates provided by the LSI/Salazar Matrix, as opposed to the USAO Laffey Matrix, are in line
with those charged by comparably experienced and skilled attorneys in the private market.
The plaintiff having met this initial burden, the Court must presume that reimbursement
at rates supplied by the LSI/Salazar Matrix is reasonable and consider next whether WMATA
puts forward sufficient evidence to overcome this presumption of reasonableness.
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2. WMATA Fails to Rebut the Presumption that the Plaintiff’s Requested
Reimbursement Rates are Reasonable
Contending that the plaintiff’s requested reimbursement rates are unreasonably high,
WMATA does not attempt to rebut the plaintiff’s evidence of his attorneys’ experience,
expertise, or customary billing practices. See generally Def.’s Opp’n. Instead, arguing that the
USAO Laffey Matrix provides reasonable rates for the plaintiff’s attorneys, WMATA suggests
that its preferred matrix is both more accurate and more widely accepted in this jurisdiction than
the more generous LSI/Salazar Matrix.
First, WMATA explains that the USAO Laffey Matrix is generated using more localized
inflationary measures to calculate reasonable rates for Washington-area attorneys, while the
LSI/Salazar Matrix is based instead on statistics reflecting changes in the cost of legal services
nationwide. Id. at 2–3. As a result, WMATA contends, the USAO Laffey Matrix better
approximates the actual cost of legal services in the District of Columbia and, therefore, serves
as a more appropriate basis for calculating the appropriate reimbursement rate under § 1988. Id.
Likewise, while acknowledging that the LSI/Salazar Matrix “has been approved for use,”
WMATA relies on non-binding authority to argue that the USAO Laffey Matrix “is far more
widely accepted” as a measure of prevailing market rates for legal services in this jurisdiction.
Id. at 2 (citing authorities). 4
In large measure, WMATA’s arguments on this score echo those thoroughly considered,
and rejected, in this Court’s recent decision in Makray. As here, the defendant federal agency in
4
In the alterative, WMATA asks the Court to reimburse the plaintiff at an hourly rate no greater than the
average rate charged by all private attorneys retained by the agency to “handle complex litigation matters requiring
specific expertise.” Def.’s Opp’n at 3. By definition, however, this “blended” average groups attorneys regardless
of their individual skills, experience, and reputation. Most notably, WMATA’s proposed “blended” rate of $486.00
is well below the hourly rate provided by the USAO Laffey Matrix for attorneys, like the plaintiff’s public interest
counsel, with more than twenty years of experience.
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that case did not contest that the plaintiff’s employment discrimination action qualified as
“complex federal litigation” for which reimbursement under a Laffey-derived matrix was
appropriate. Makray, 2016 WL 471271, at *3. Instead, the agency argued that the USAO Laffey
Matrix, and not the LSI/Salazar Matrix, supplied the reasonable reimbursement rate for the
plaintiff’s attorney’s time. To determine which rate to apply, the Court looked principally to the
D.C. Circuit’s recent holding in Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58(D.C. Cir. 2015). In Salazar, the D.C. Circuit upheld an award, based on the LSI/Salazar
Matrix, reimbursing a prevailing plaintiff for attorneys’ fees incurred in litigating a claim, like
the claim at issue here, brought under 42 U.S.C. § 1983. Construing the Salazar Court’s holding,
this Court concluded that “at least in cases qualifying as ‘complex federal litigation,’ the
Salazar/LSI Matrix likely provides a conservative estimate of the prevailing market rate for
attorneys practicing in the District of Columbia.” Makray, 2016 WL 471271, at *5–9. In so
doing, the Court expressly rejected the argument, advanced here by WMATA, that the
inflationary measure underlying the USAO Laffey Matrix more accurately reflects changes in the
cost of legal services in the District of Columbia. See id. at *7 (noting that the Salazar Court
broadly confirmed the superior accuracy of the LSI/Salazar rates).
Similarly, although WMATA suggests that the USAO Laffey Matrix enjoys broader
support among the Judges on this Court, heavy reliance on prior fee awards to establish a reliable
prevailing market rate for comparable legal services presents a number of challenges. Most
notably, prevailing civil rights attorneys, especially those who work primarily or exclusively on a
contingency basis, often “have a powerful incentive to minimize further litigation . . . and obtain
prompt payment for their services.” Flood v. District of Columbia, No. CV 15-497 (BAH), 2016
WL 1180159, at *12 (D.D.C. Mar. 25, 2016). As a result, where attorneys, like the plaintiff’s
15
counsel in this case, rely to some extent on fee-shifting to sustain their practice, prior fee awards
may understate the actual prevailing market rates for attorneys providing comparable services.
Id. Indeed, in Salazar, the D.C. Circuit dismissed as “not compelling” proffered evidence of
prior fee awards, emphasizing that earlier district court decisions are “not binding precedent” for
either the Circuit or other Judges on this Court. Salazar, 809 F.3d at 65 n.1.
Even taken on its own terms, however, WMATA’s suggestion that the weight of
authority points to reimbursement using the USAO Laffey Matrix disregards recent precedent
supporting the use of the LSI/Laffey Matrix to identify reasonable reimbursement rates in federal
civil rights cases. Most obviously, WMATA’s view that rates provided by the LSI/Salazar
Matrix are overly generous was flatly rejected, under substantially similar circumstances, by the
D.C. Circuit in Salazar. Id. at 64. Given the substantial similarity between the evidence
submitted by the parties here and the corresponding evidence considered by the D.C. Circuit in
Salazar, WMATA’s objection to the plaintiff’s proposed reimbursement at LSI/Salazar rates
faces a high hurdle indeed. Nonetheless, while the plaintiff noted the Salazar decision in a
recent notice to the Court, see Notice Supp. Auth., ECF No. 36, WMATA has declined to submit
a response to this notice or otherwise put forward a basis on which to distinguish the instant case
from the Salazar decision.
Moreover, following Salazar, Judges on this Court have approved fee awards based on
the LSI/Salazar Matrix, at least where fee applications in matters involving “complex federal
litigation” are supported by competent evidence of prevailing market rates. See Makray, 2016
WL 471271; Citizens for Responsibility & Ethics in Washington v. United States Dep’t of
Justice, No. 1:11-CV-00374 (CRC), 2016 WL 554772 (D.D.C. Feb. 11, 2016); cf. Williams v.
Johnson, No. CV 06-2076 (CKK), 2016 WL 1257831, at *5–6 (D.D.C. Mar. 30, 2016) (rejecting
16
LSI/Salazar rates upon concluding that the plaintiff’s state law claim did not qualify as “complex
federal litigation”); Wesby v. District of Columbia, No. CV 09-0501 (RC), 2016 WL 2992012, at
*3 (D.D.C. May 23, 2016) (same, upon concluding that the plaintiffs submitted no evidence
“showing that the [LSI/Salazar] Matrix more accurately reflects the market rate for their
counsel’s work”). 5 By comparison, each of the cases cited by WMATA pre-date the D.C.
Circuit’s holding in Salazar that the LSI-based Laffey Matrix generally provides a conservative
estimate of the prevailing market rate for legal services in connection with complex federal
litigation in the District of Columbia. See Def.’s Opp’n at 2.
Here, the plaintiff has presented evidence showing that the LSI/Salazar Matrix provides
reimbursement rates that are broadly in line with prevailing rates for legal services in complex
federal litigation in the Washington, D.C. area. 6 By contrast, the rehashed arguments and non-
binding, superseded precedent offered by WMATA in support of its proposed alternative matrix
fail to rebut the presumption that reimbursement at rates provided by the LSI/Salazar Matrix is
reasonable.
3. The Plaintiff Will Be Reimbursed Based on Current Rates for His
Attorneys’ Level of Experience at the Time of Billing
Finally, though the Court concludes that the plaintiff is entitled to reimbursement at rates
provided by the LSI/Salazar Matrix, the parties further disagree as to which rates provided by
5
In at least two instances, Judges on this Court have awarded fees at below-LSI/Salazar rates where the
prevailing party requested reimbursement at a reduced rate. See Ashraf-Hassan v. Embassy of France in the United
States, No. CV 11-805 (JEB), 2016 WL 3014615, at *4 (D.D.C. May 24, 2016) (awarding fees based on USAO
Laffey Matrix, as requested by the prevailing plaintiff); Martinez v. Asian 328, LLC, No. 15-CV-1071 (GMH), 2016
WL 1698261, at *7 (D.D.C. Apr. 27, 2016) (same, with fees awarded at the plaintiff’s attorney’s customary rate).
6
Though noted by neither party, the D.C. Council has embraced the Salazar/LSI Matrix as a measure of
reasonable attorneys’ fees for a prevailing plaintiffs alleging violations of local worker protection laws by expressly
authorizing reimbursement of attorneys’ fees “computed pursuant to the matrix approved in Salazar v. District of
Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000), and updated to account for the current market hourly rates for
attorney’s services.” D.C. Code §§ 32–1308(b)(1), 32–1308.1(m)(1). This formal adoption of the LSI/Salazar
Matrix by the local governing body in wage theft litigation provides additional support for the plaintiff’s contention
that this matrix generally reflects prevailing market rates for civil rights actions in the District.
17
this matrix should be applied in this case. Like most fee matrices, the LSI/Salazar Matrix
provides differing rates based on an attorney’s level of experience. Specifically, the LSI/Salazar
Matrix groups attorneys into five categories based on the number of years since their law school
graduation. Pl.’s Supp., Ex. 1 (the categories include “1-3,” “4-7,” “8-10,” “11-19,” and “20+,”
with an attorney’s experience calculated as of June 1 of each year); see also Laffey Matrix,
http://www.laffeymatrix.com/see.html (last visited July 7, 2016). Here, in addition to disputing
which Laffey-derive fee matrix should be used in this case, the parties appear to disagree as to:
(1) the level of experience that should be attributed to each of the plaintiff’s Participating
Attorneys in identifying the appropriate reimbursement rate for each attorney; and (2) whether
the plaintiff should be reimbursed at rates provided by the current matrix or, instead, at the rates
in effect at the time the plaintiff’s attorneys billed time on the plaintiff’s behalf.
Unfortunately, the parties’ briefing leaves their respective positions on each of these two
remaining issues somewhat difficult to discern. Generally speaking, however, the plaintiff
advocates for reimbursement for each of the Participating Attorneys at rates provided by the
current LSI/Salazar Matrix based on their current level of experience. See Pl.’s Mem. at 8; Pl.’s
Reply at 8–10. By contrast, WMATA contends that the Court should award fees based on the
level of experience these attorneys possessed, and at rates provided by the LSI/Salazar in place,
at the time they billed the hours for which the plaintiff seeks reimbursement. Def.’s Opp’n at 4–
5. The discussion that follows addresses these related issues in tandem.
Arguing for reimbursement at current rates based on his attorneys’ current levels of
experience, the plaintiff relies principally on the discussion of a similar issue in Miller v.
Holzmann, 575 F. Supp. 2d 2 (D.D.C. 2008), vacated in part on other grounds sub nom. U.S. ex
rel. Miller v. Bill Harbert Int’l Const., Inc., 786 F. Supp. 2d 110 (D.D.C. 2011). Pl.’s Reply at
18
8–10. In that case, the plaintiff sought $20 million in attorneys’ fees after prevailing on his claim
under the False Claims Act, 31 U.S.C. §§ 3729–3733. 575 F. Supp. 2d at 3–4. In what the court
described as a “suit of epic duration,” more than a decade separated the onset of litigation on the
merits and resolution of the subsequent fee-shifting dispute, with the time entries for which the
prevailing plaintiff sought reimbursement spanning a thirteen-year period. Id. at 18. As here,
the plaintiff sought reimbursement for these hours based on his attorneys’ then-current billing
rates, while the defendants favored reimbursement “using historical rates corresponding to the
years when the work was performed.” Id. Relying on the Supreme Court’s admonition that
reasonable attorneys’ fees awarded pursuant to federal fee-shifting statutes “should account for
delay in payment,” id. (citing Missouri v. Jenkins, 491 U.S. 274, 282 (1989)), the Miller court
reasoned that an award based on the plaintiff’s attorneys’ then-current rates would reasonably
compensate the plaintiff for the long delay in payment. Id.Though Miller stands for the proposition that prevailing plaintiffs may obtain
reimbursement at their attorneys’ current billing rates in some circumstances, the present case is
readily distinguishable. Indeed, unlike the marathon litigation giving rise to the fee dispute in
Miller, the gravamen of the plaintiff’s First Amendment challenge in this case was largely
resolved within a month of the plaintiff having filed his Complaint and corresponding request for
a preliminary injunction. See Compl. (filed July 17, 2014); Order Granting Prelim. Inj. Relief
(dated Aug. 14, 2014). Following a brief stay to allow WMATA to review the challenged
regulation, the Court awarded summary judgment, and a permanent injunction, to the plaintiff
roughly seven months after he filed his claim against WMATA. See Minute Order, dated Feb.
24, 2015. Thereafter, the case was again delayed, this time to provide the parties an opportunity
to brief the impact of the D.C. Circuit’s Eley decision on the present fee dispute and, importantly,
19
to provide the plaintiff an opportunity to supplement his prior submissions in order to justify his
request for reimbursement at LSI/Salazar rates. See Minute Order, dated July 27, 2015. In
short, the plaintiff’s reliance on Miller in support of his request for reimbursement reflecting the
brief delay in adjudicating the present fee dispute is misplaced. For this reason, the non-binding
authority relied upon by the plaintiff provides little basis for an award based on his attorneys’
current level of experience.
On the other hand, the D.C. Circuit has consistently recognized that delayed payment of
attorneys’ fees “deprives the eventual recipient of the value of the use of the money in the
meantime, which use, particularly in an inflationary era, is valuable.” West, 717 F.3d at 1034
(quoting Copeland v. Marshall, 641 F.2d 880, 893 (D.C. Cir. 1980)). Where an adjustment to
reflect such a delay is warranted, “it may be made ‘either by basing the award on current rates or
by adjusting the fee based on historical rates to reflect its present value.’” Id. (quoting Perdue,
130 S.Ct. at 1675). Thus, “instead of using current rates, courts may also compensate for delay
by adding interest to the historic rate so that the amount paid today reflects the approximate
value of the historical rates charged at the time services were rendered.” Id.With this in mind, the Court is satisfied that compensation based on rates provided in the
current LSI/Salazar Matrix is warranted. Indeed, while neither party has proposed adding
interest to the plaintiff’s attorneys’ historical rates, the D.C. Circuit has repeatedly upheld the
prime rate as a measure of prejudgment interest. See, e.g., Cont’l Transfert Technique Ltd. v
Fed. Gov’t of Nigeria, 603 F. App’x 1, 5 (D.C. Cir. 2015). As of July 7, 2016, the prime rate
stood at 3.5%, see Board of Governors of the Federal Reserve System, Selected Interest Rates
(Daily), https://www.federalreserve.gov/releases/h15/update/ (last visited July 7, 2016), which
rate roughly corresponds to recent annual increases in rates provided by the LSI/Salazar Matrix,
20
see Pl.’s Supp., Ex. 1. By contrast, reimbursement based on the plaintiff’s attorneys’ current
level of experience would increase the Participating Attorneys’ reimbursement rates by over
20%. Put simply, the plaintiff offers no compelling justification for such a dramatically more
generous award based on the roughly seventeen months that have elapsed between the resolution
of the plaintiff’s First Amendment claim and the present fee award. Instead, the plaintiff will be
reimbursed at the rates provided by the current LSI/Salazar Matrix based on his attorneys’
respective levels of experience at the time that they provided legal services to the plaintiff.
Accord Williams, 2016 WL 1257831, at *3.
Reviewing their affidavits, the plaintiff’s junior Participating Attorney graduated from
law school in 2004, Light Aff. ¶ 1, placing him in the “8-10” category for work prior to June 1,
2014, and in the “11-19” category for work after June 1, 2014. The plaintiff’s senior
Participating Attorney graduated from law school in 1995, Day Aff. ¶ 4, placing him in the “11-
19” category for work prior to June 1, 2014 and the “20+” category for work after June 1, 2014.
The plaintiff’s public interest attorney graduated from law school in 1984, McKusick Decl. ¶ 2,
and thus was in the “20+” category for the duration of this action. Based on the invoices
submitted by the plaintiff, see Pl.’s Suppl.,ECF No. 33-12, the plaintiff is entitled to a total award
of $50,145.00, which includes: (1) $3,661.60 (4.6 hours at an hourly rate of $796.00) for hours
billed by his public interest attorney; (2) $33,447.10 (4.4 hours at an hourly rate of $586.00 and
46.7 hours at an hourly rate of $661.00) for hours billed by the plaintiff’s junior Participating
Attorney; (3) $12,536.30 (0.3 hours at an hourly rate of $661.00 and 15.5 hours at an hourly rate
of $796.00) for hours billed by the plaintiff’s senior Participating Attorney; and (4) $500.00 in
litigation costs. Pl.’s Supp., Ex. 10.7
7
In addition to reimbursement of attorneys’ fees, the plaintiff seeks reimbursement of $500.00 in litigation
costs, Pl.’s Reply at 1, which includes the $400.00 filing fee and $100.00 in process server fees, see Bill of Costs,
21
IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion for attorneys’ fees is granted in part and
denied in part. Having met his burden of demonstrating that rates provided by the LSI/Salazar
Matrix are in line with the prevailing market rates for the services he received in connection with
his successful First Amendment claim, the plaintiff is entitled to reimbursement based on that
matrix. Further, due to the slight delay in payment, the plaintiff is entitled to reimbursement at
rates provided by the current version of that matrix, based upon his attorneys’ level of experience
during the litigation, rather than, as the plaintiff requests, at rates commensurate with his
attorneys’ current levels of experience. Finally, the plaintiff may be reimbursed for his litigation
costs, including process server fees, as provided by this Court’s Local Civil Rule 54.1(d)(2).
Accordingly, the defendant shall pay to the plaintiff a total of $50,145.00 in attorneys’ fees and
costs incurred by the plaintiff in pursuing his claim.
An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A.
Howell, Chief Judge
DN: cn=Hon. Beryl A. Howell, Chief
Date: July 11, 2016 Judge, o, ou=U.S. District Court for the
District of Columbia,
email=Howell_Chambers@dcd.uscourt
s.gov, c=US
Date: 2016.07.11 16:45:58 -04'00'
__________________________
BERYL A. HOWELL
Chief Judge
ECF No. 23-7. Of this total, WMATA contests only the $100.00 process server fees. Def.’s Opp’n at 5 (citing
Zdunek v. Wash. Metro. Area Transit Auth., 100 F.R.D. 689, 692 (D.C. 1983); Harvey v. Mohammed, 951 F. Supp.
2d 47, 73 (D.D.C. 2013)). As the plaintiff rightly notes, see Pl.’s Reply at 10–12, however, the non-binding
authority relied upon by WMATA in contesting reimbursement of these costs did not consider this Court’s local
rules, which explicitly provide that “[c]osts of service of summons and complaint” are taxable. LCvR 54.1(d)(2).
Consistent with this Court’s local rules, reimbursement of these costs to the plaintiff will be ordered. Accord Law
Office G.A. Lambert and Assoc. v. Davidoff, 72 F. Supp. 3d 110, 120 (D.D.C. 2014) (holding costs of translating
summons and complaint into German “necessary to file this complaint and . . . therefore taxable.”); Youssef v. FBI,
762 F. Supp. 2d 76, 85 (D.D.C. 2011), aff’d in part, 687 F.3d 397 (D.C. Cir. 2012) (allowing for recovery of special
process server fees based on LCvR 54.1(d)(11), which provides for taxation of “costs of service of a subpoena on a
witness who testified at a deposition, hearing or trial.”)
22