Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON,
Plaintiff,
Case No. 1:11-cv-00374 (CRC)
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION
In 2011, Citizens for Responsibility and Ethics in Washington (“CREW”) filed a
Freedom of Information Act request with the U.S. Department of Justice for records related to
the agency’s investigation and prosecution of Paul J. Magliocchetti, a prominent lobbyist who
pled guilty to federal campaign finance law violations. After DOJ categorically withheld all
potentially responsive records based on privacy grounds, CREW filed a lawsuit in this Court. As
a result of that suit, DOJ released hundreds of pages of relevant documents. A CREW report on
Magliocchetti based on those documents was featured in the Washington Post and other media
outlets. CREW now moves for attorney fees and costs as a prevailing party in the litigation.
DOJ does not contest CREW’s entitlement to a fee award or dispute the number of hours that
CREW attorneys worked on the case. It objects, rather, to the hourly rate to be applied in
calculating the award. The Court finds that the rates proposed by CREW, after a modest
reduction, are consistent with those charged for similar services by comparable lawyers in
Washington, D.C. It will therefore grant CREW’s motion for attorney fees and costs.
I. Analysis
A prevailing party in a Freedom of Information Act (“FOIA”) matter is entitled to
“reasonable attorney fees” and other reasonable litigation costs. 5 U.S.C. § 552(a)(4)(E)(i). The
burden lies with the “‘fee applicant to produce satisfactory evidence . . . 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.’” Covington v. District of Columbia, 57 F.3d
1101, 1109 (D.C. Cir. 1995) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). As the
parties agree that CREW is entitled to some award, and DOJ does not challenge the number of
hours for which CREW seeks compensation, the only question is what hourly rates to use to
calculate the award.
Two attorneys represented CREW in the underlying litigation: CREW’s chief counsel,
Anne L. Weisman, and Washington, D.C. sole-practitioner David L. Sobel. Weisman attests that
she has over 30 years of litigation experience at CREW, DOJ, and the U.S. Department of Labor.
Pl.’s Mot. Attorneys’ Fees Ex. B. She specializes in FOIA litigation and has received numerous
national honors for her work in that area. Id. Sobel affirms that he has 27 years’ experience
litigating FOIA matters and is an editor of a leading treatise on federal open government laws.
Pl.’s Mot. Attorneys’ Fees Ex. A. He too has been recognized as a leading national FOIA
practitioner. Id.
As public interest lawyers, CREW’s attorneys do not have standard hourly rates. CREW
therefore requests that the Court calculate the award based on the prevailing market rate for
complex federal litigation services. To ascertain this rate, CREW urges the Court to rely on a
matrix of hourly fees for complex federal litigation performed by attorneys in Washington D.C.
law firms. CREW’s proposed matrix was originally developed in 1982 as part of the litigation in
Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), and was updated in 1989 in
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response to the D.C. Circuit’s decision in Save Our Cumberland Mountains v. Hodel, 857 F.2d
1516 (D.C. Cir. 1988). CREW’s expert, economist Michael Kavanaugh, has adjusted the 1989
version of the Laffey matrix for inflation by applying the legal services component of the
Consumer Price Index (“CPI”). The Court will refer to CREW’s proposed matrix as the “LSI-
adjusted Laffey matrix.” CREW argues that the LSI-adjusted Laffey matrix best approximates
the hourly billing rates of Washington, D.C. attorneys who engage in complex federal litigation.
DOJ disagrees. While acknowledging that the Laffey matrix is commonly used to
determine rates in this district, it asks the Court to apply a version of the matrix maintained by
the United States Attorney’s Office for the District of Columbia (“USAO”). The government’s
proposed matrix adjusts the original 1982 Laffey matrix to reflect increases not in the cost of
national legal services, but in the overall CPI for the Washington-Baltimore area (“CPI-WB”).
The difference is significant: For attorneys with the experience of Ms. Weisman and Mr. Sobel,
the CREW’s LSI-adjusted Laffey matrix yields hourly billing rates from $709 to $771 for the
years 2011 through 2014, while the CPI-WB matrix results in rates ranging from $475 to $510.
Much ink has been spilled recently discussing the relative merits of these two matrices in
fee-shifting cases in this district. E.g., Salmeron v. District of Columbia, No. CV 13-1615 , 2015
WL 129079, at *5 (D.D.C. Jan. 9, 2015) (rejecting the LSI-adjusted Laffey matrix for
administrative-level litigation under the Individuals with Disabilities Education Act (“IDEA”));
Salazar v. District of Columbia, 991 F. Supp. 2d 39, 47 (D.D.C. 2014) (applying the LSI-
adjusted Laffey matrix rather than the USAO matrix in a 42 U.S.C. § 1983 case); Citizens for
Responsibility and Ethics in Washington v. Dep’t of Justice, No. 11-1021, Mem. Op. (October
24, 2014) (applying the LSI-adjusted Laffey matrix in a FOIA case); Citizens for Responsibility
and Ethics in Washington v. Dep’t of Justice, No. 11-0754, Mem. Op. (August 4, 2014) (same);
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McAllister v. District of Columbia, No. CV 11-2173, 2014 WL 2921020, at *3 (D.D.C. June 27,
2014) (declining to apply the LSI-adjusted Laffey matrix in a “simple” IDEA case); Eley v.
District of Columbia, 999 F. Supp. 2d 137 (D.D.C. 2013) (applying the LSI-adjusted Laffey
matrix in an extensively-litigated IDEA case); Heller v. District of Columbia, 832 F. Supp. 2d
32, 46 (D.D.C. 2011) (adopting the USAO matrix due to the small size of the prevailing
attorney’s firm). Having reviewed the declarations of both sides’ experts and the relevant cases,
the Court is persuaded that the LSI-adjusted Laffey matrix, while imperfect, offers a better
methodology for estimating prevailing market rates for complex federal litigation in Washington,
D.C. In reaching this conclusion, the Court is persuaded by Judge Howell’s analysis of the issue
in Eley. As Judge Howell observed, the CPI-WB measures inflation of “such diverse items as
personal computer prices, funeral expenses and movie tickets” and therefore “heavily masks the
changes in rates for legal services.” 999 F. Supp. 2d at 153. Moreover, the legal services
component of the CPI itself “shows that the cost of legal services nationally has far outstripped
the increase in overall prices.” Id. Considering that Washington, D.C. is the third most
expensive legal market in the country, the Court agrees with Judge Howell that the LSI-adjusted
Laffey matrix—even if it does not capture the precise types of litigation services involved in this
case—likely offers a better approximation of D.C. rates for the relevant services than a matrix
adjusted using a general inflation index.
Selecting the most appropriate matrix is not the end of the story, however. Because all
“fee matrices are somewhat crude,” they merely provide “a useful starting point” for determining
prevailing market rates. Covington, 57 F.3d at 1109; see also Heller, 832 F. Supp. 2d at 45. The
Court still must assess whether the rates reflected in the LSI-adjusted Laffey matrix are
reasonable for the attorneys involved and the services rendered in this case. As evidence of
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prevailing market rates, both sides point to law firm billing rate surveys that they claim are
consistent with the rates reflected in their respective matrices. While awarding fees to sole
practitioners and public interest lawyers based on law firm billing rates might appear
counterintuitive given the differing cost structures involved, both the Supreme Court and the
D.C. Circuit have endorsed the practice. Blum, 465 U.S. at 895 (“The statute and legislative
history establish that ‘reasonable fees’ under [42 U.S.C.] § 1988 are to be calculated according to
the prevailing market rates in the relevant community, regardless of whether plaintiff is
represented by private or nonprofit counsel”); Save Our Cumberland Mountains, 857 F.2d at
1524 (“[T]he prevailing market rate method heretofore used in awarding fees to traditional for-
profit firms and public interest legal services organizations shall apply as well to those attorneys
who practice privately and for profit but at reduced rates reflecting non-economic goals.”). The
Court therefore will look to law firm billing rates as a benchmark for the reasonableness of the
rates proposed here.
The government’s expert, Laura A. Malowane, relies on the 2011 ALM Legal
Intelligence Survey of Law Firm Economics, which she contends “provides data of actual
average billing rates of attorneys in the Washington, DC area, from law offices of all sizes and
types.” Def.’s Opp’n Mot. Attorneys’ Fees Ex. 2, ¶ 32 (“Malowane Decl.”).1 That survey,
according to Dr. Malowane, places the average billing rate for Washington, D.C. attorneys with
over 20 years’ experience at $459 per hour, which is in line with the USAO matrix. Id. tbl.2.
CREW relies, at least indirectly, on several surveys that Dr. Malowane used in another fee-
shifting case to conclude that an hourly billing rate of approximately $700 for a partner at a large
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Unhelpfully, the Government’s expert does not explain the methodology underlying the data or
provide the Court with the survey itself, saying only that it is “available for purchase.”
Malowane Decl. at 9 n.21.
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Washington, D.C. firm was “well within” prevailing rates at similar-sized firms in comparable
locations. Pl.’s Reply Ex. A, ¶ 19. Judge Howell referenced yet another survey in Eley that
pegged the average hourly rate in 2013 for a law firm partner in Washington, D.C. at $649, or
$25 higher than the comparable top-end rate predicted by the LSI-adjusted Laffey matrix. 999 F.
Supp. 2d at 153 (citing a Corporate Counsel Magazine nationwide billing rate survey).
While law firm billing rate surveys are a natural source of comparative data in assessing
overall rates and trends, their utility in determining a prevailing rate for a specific lawyer
providing a particular legal service is limited by several factors. First, as the surveys referenced
above demonstrate, average billing rates vary from survey to survey based on the composition of
the participating firms and other factors. Second, because the surveys lump together a range of
services in different practice areas at firms with different economics, the surveys’ “average”
lawyer rates are derived from a vast range of individual rates. E.g., Katelyn Polantz, Billing
Rates Rise, Discounts Abound, Nat’l L.J., Jan. 5, 2015, at 1, 6 (indicating that partner hourly
rates at 169 reporting law firms vary from $220 to $1,250). Surveys of “standard” billing rates
also overlook the fact that clients rarely pay those rates. Firms frequently discount their standard
rates and, even after discounting, lower the effective rate further by writing off a portion of their
billed hours to reflect attorney inefficiency and other considerations. Id. at 6 (noting discounts,
fee caps, and write-offs of first-year associate work). Finally, firms do not always collect 100
percent of the fees they ultimately bill. For these reasons, reported rates surely overstate the
actual fees that law firms are paid—and expect to be paid—for their services.
At the end of the day, the Court must assess whether the fees requested by CREW are
consistent with those that would be paid to “lawyers of reasonably comparable skill, experience,
and reputation” in the Washington, D.C. legal market. Covington, 57 F.3d at 1103. It is
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uncontested that CREW’s lawyers in this matter are experienced, national experts in FOIA
litigation. The case also involves a matter of national public interest: The disclosure of
information about what prosecutors called “one of the largest federal campaign finance frauds in
history.” Press Release, Dep’t of Justice, Lobbyist Sentenced to 27 Months in Prison for Role in
Illegal Campaign Contribution Scheme (Jan. 7, 2011). And the litigation required to overcome
DOJ’s categorical withholding of potentially responsive records is aptly described as “complex.”
For the reasons discussed above, the Court will use as a starting point the LSI-adjusted Laffey
matrix, which yields rates for Ms. Weisman and Mr. Sobel ranging from $709 per hour to $771
per hour in the relevant years. The Court will reduce those rates by 15 percent, however, to
account for the differences between reported rates and actual law firm billing realization.
Consistent with that approach, the Court will award CREW attorney fees in the amount of
$27,919 ($32,846 * 0.85) for its litigation of the underlying case. The Court will also award
CREW $6,749 ($7,940 * 0.85) for its litigation of this fee petition. With an additional $350 in
costs, the total award amounts to $35,018.
II. Conclusion
For the reasons discussed above, the Court will grant the Plaintiff’s motion for attorney
fees. The Court will issue an order consistent with this opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: February 11, 2015
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