Brackett v. Kelly

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CINDY BRACKETT,
Plaintiff,
v. Civil Action No. 17-988 (JEB)
ALEJANDRO MAYORKAS, Secretary,
Department of Homeland Security,
Defendant.
MEMORANDUM OPINION
“In law,” satirist Samuel Butler observed, “nothing is certain but the expense.” Butler,
unfortunately, was not quite right. In this employment dispute, the expenses, too, escape
agreement. After a partial grant of summary judgment and half a year of negotiations, the
Department of Homeland Security and Plaintiff Cindy Brackett have settled the latter’s claim of
disability discrimination. Because the parties cannot agree on the amount of legal expenses due,
Brackett has returned to this Court with a Motion for Attorney’s Fees. The Court will grant it,
but with substantial reductions.
I. Background
The Court assumes familiarity with the facts underlying this dispute and summarizes
them only briefly here. See Brackett v. Mayorkas, No. 17-988, 2021 WL 5711936, at *1–3
(D.D.C. Dec. 2, 2021) (describing facts). In 2015, Brackett filed two administrative complaints
with her employer, a sub-agency within the Department of Homeland Security. See id. at *1, *3.
She then filed this lawsuit against the Secretary in May 2017, alleging disability-based
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discrimination and retaliation pursuant to the Rehabilitation Act. See id. at *3. The litigation
did not kick off in earnest until two-and-a-half years later, when Brackett filed a Second
Amended Complaint. Id. That pleading “allege[d] one count, unhelpfully broken into eleven
subparts.” Id.
The Court granted Defendant’s subsequent Motion for Summary Judgment, but only in
part. It held that although Brackett’s case pertained to a typically nonreviewable security-
classification decision, she had established a material dispute about whether the revocation of her
clearance arose from deliberately false and retaliatory statements made against her. See id. at
*4–5, *10. The Court found that several of Brackett’s claims could move forward, including her
allegations that DHS had improperly discriminated or retaliated against her when it suspended
her security clearance and diminished her responsibilities. Id. at *9–10. It dismissed her
remaining claims, including her “far from clear” claims that DHS had failed to reasonably
accommodate her and had created a hostile work environment. See id. at *11–12.
After half a year of negotiations, the parties settled for $150,000 and on all but one issue:
how much Defendant owed Brackett in attorney fees and costs. See ECF No. 84 (Order of
Referral for Mediation); ECF No. 94 (Joint Status Report); ECF 100-8 (Settlement Agreement)
at 1. Plaintiff now contends that she is owed $742,758, including for her legal team’s work on
this fee Motion. See ECF No. 100-1 (Pl. Mem. in Support of Mot. for Attorney’s Fees) at 1;
ECF No. 109 (Pl. First Supplement to Mot. for Attorney’s Fees) at 4 (describing corrections to
initial request and adding request for hours spent on this fee litigation). Defendant balks and
describes why this request is unreasonable but stops short of proposing specific cuts. See ECF
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Nos. 106 (Def. Opp.), 111 (Def. Opp. to Supp. Mot.).
II. Legal Standard
The parties agree that in this lawsuit brought under the Rehabilitation Act, “the court, in
its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.” 29 U.S.C. § 794a(b); see Settlement Agreement, ¶ 6. “The
usual method of calculating reasonable attorney[ ] fees is to multiply the hours reasonably
expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of
Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). “The
party seeking fees has the . . . burden of establishing the reasonableness of the fees requested”
and must do so for “both the number of hours and the hourly rate.” Elec. Privacy Info. Ctr. v.
Dep’t of Homeland Sec., 218 F. Supp. 3d 27, 38, 47 (D.D.C. 2016). Supporting documentation,
such as time records reflecting the work of each attorney, “must be of sufficient detail and
probative value to enable the court to determine with a high degree of certainty that such hours
were actually and reasonably expended.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962,
970 (D.C. Cir. 2004) (citation omitted). Courts maintain broad discretion to modify a requested
fee award. See Conservation Force v. Jewell, 160 F. Supp. 3d 194, 203 (D.D.C. 2016) (citing
Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006)).
III. Analysis
Plaintiff seeks fees for four attorneys and six support staff from employment firm Melehy
& Associates. See ECF No. 108 (Reply) at 3; Mot. at 2. The Court will begin with the most
contentious issue: what billing rates to charge for the two most experienced attorneys Brackett
employed. It will then turn to the reasonableness of the number of hours that her legal team
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expended on this litigation, including on the merits and on this request for fees.
A. Appropriate Rates
The court is tasked with “fixing the prevailing hourly rate . . . with a fair degree of
accuracy.” Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995) (internal
quotation omitted). In determining that reasonable hourly rate, courts turn to what are known as
the Covington factors: “(1) ‘the attorneys’ billing practices’; (2) ‘the attorneys’ skills,
experience, and reputation’; and (3) ‘the prevailing market rates in the relevant community.’”
Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015) (quoting
Covington, 57 F.3d at 1107). Factor one is not so relevant here. Although Defendant cites in a
footnote to the low billing rates in Plaintiff’s retainer agreement, see Opp. at 13 n.6, courts do
not look to that rate where, as here, a private attorney worked “at reduced rates reflecting non-
economic goals.” Covington, 57 F.3d at 1107; see ECF No. 100-3 (Declaration of Omar Vincent
Melehy), ¶ 28 (describing discounted, contingency-based representation in this case). As for the
second factor, Defendant does not contest, and the Court need not detail here, the skill,
experience, and reputation of the attorneys that Brackett engaged. See Opp. at 11–22.
It is the third factor that looms large. To establish the prevailing market rate, “a fee
applicant must ‘produce satisfactory evidence — in addition to the attorney’s own affidavits —
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.’” Eley v. District of
Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11
(1984)). In determining appropriate rates, courts in this district have often employed a schedule
of hourly fees based on years of attorney experience, the first of which was developed in
Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other grounds, 746
F.2d 4 (D.C. Cir. 1984). See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of
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Justice, 142 F. Supp. 3d 1, 16 (D.D.C. 2015).
The parties agree that this litigation is sufficiently complex that the relevant market rate
can be determined by some updated version of the Laffey Matrix. See Mot. at 2; Opp. at 12–13;
J.T. v. District of Columbia, No. 19-989, 2023 WL 355940, at *13 (D.D.C. Jan. 23, 2023) (“In
its choice of alternative fee matrix, . . . defendant apparently concedes that the relevant market is
that of complex federal litigation . . . .”); Salazar, 809 F.3d at 64 (finding defendant
“acquiesce[ed] in the notion that the litigation at issue qualifies as complex federal litigation”
when it proposed alternative USAO update to the Laffey Matrix). Both also agree that the
appropriate rate for four members of the legal team is set by a spin-off of the Laffey Matrix that
they call the Fitzpatrick Matrix, a model schedule of fees for complex federal litigation in D.C.
that Professor Brian Fitzpatrick developed for the United States Attorney’s Office for the District
of Columbia. See Mot. at 2; Opp. at 12–13.
They diverge, however, when it comes to the remaining two attorneys — name partner
Omar Vincent Melehy and associate Robert Porter. For them, Plaintiff turns to a different Laffey
Matrix: the Legal Services Index (LSI) Matrix. That table sets the rate for Melehy at $997 per
hour given his three-plus decades of experience and at $829 per hour for Porter given his ten-
plus years of experience. See Mot. at 6. Defendant, on the other hand, maintains that the
Fitzpatrick Matrix should set rates across the board, including for Melehy and Porter. See Opp.
at 1, 7; ECF No. 100-9 (Fitzpatrick Matrix) at 1 (setting rates approximately $200 lower). The
parties next disagree on whether current, inflation-adjusted or historical rates should apply,
whichever matrix the Court selects. The Court will take those two rate-related disputes in turn.
Prevailing Market Rates for Melehy and Porter
As fee “matrices are somewhat crude, the matrix’s proponent usually” should point to
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additional evidence of the prevailing market rate, which can include “affidavits reciting the
precise fees that attorneys with similar qualifications have received from fee-paying clients in
comparable cases [or] evidence of recent fees awarded by the courts or through settlement to
attorneys with comparable qualifications handling similar cases.” DL v. District of Columbia,
924 F.3d 585, 589 (D.C. Cir. 2019) (internal quotation marks omitted). Although the “initial
burden to establish an hourly rate lies with the fee applicant, which can then be rebutted with
other evidence by the counterparty,” when “both parties submit competing matrices, backed up
by supporting affidavits and evidence, this framework functionally collapses into one question:
Which matrix better reflects the prevailing market rates in the relevant community?” Lewis v.
District of Columbia, No. 15-521, 2018 WL 6308722, at *6 (D.D.C. Dec. 3, 2018).
Although Brackett does not offer evidence supporting the methodology or development
of the LSI Matrix, its history is well documented. In 1989, a litigator reviewed both the National
Law Journal’s survey of rates and the rates charged by attorneys from seven major law firms to
create a table of rates, which lawyers bring up to date by adjusting with a legal-services-specific
inflation factor. See DL, 924 F.3d at 589–90; Lewis, 2018 WL 6308722, at *5. As the D.C.
Circuit recognized in DL, common concerns about the LSI Matrix include “(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.” 924 F.3d at 594. Although it found
the LSI Matrix more palatable than the alternative matrix the USAO had proposed at the time,
the Circuit acknowledged that “as time passes, the [LSI M]atrix may well — like shoulder pads,
eight-tracks, and other ‘80s fads before it — be losing its shine.” Id. Today, more than 71% of a
given LSI rate “consists entirely of inflation adjustments.” J.T., 2023 WL 355940, at *15; see
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also ECF No. 106-5 (Statement of Interest of the United States filed in J.T.) at 15.
To make up for these defects and to meet her burden to show that the LSI Matrix reflects
the relevant market rate for Melehy and Porter, Plaintiff cites to (1) declarations from two
employment lawyers, and (2) other comparable cases in which courts awarded fees based on that
Matrix. See Reply at 3–4. These get her just over the line.
Begin with the declarations. Plaintiff asks that this Court treat the first declarant, Robert
Seldon, as an “expert for the purposes of this motion,” Mot. at 10, even though Seldon himself
acknowledges that “no witness can be qualified as an ‘expert’ on United States law.” ECF No.
100-5 (Declaration of Robert C. Seldon), ¶ 22. Seldon concludes that the rate Plaintiff seeks for
Melehy is below the prevailing market rate for employment attorneys of his caliber. See id.,
¶ 67. He relies on his own close familiarity with Melehy’s work, a handful of fee disputes with
which he is familiar, a consultation of the National Law Journal’s 2014 survey of billing rates,
which lists the self-reported rates charged by twelve Washington, D.C., law firms, and on the
NLJ’s 2017 survey, which lists the rates for a mere three. Id., ¶¶ 6, 37. Even if the Court treats
Seldon as an expert with respect to his subjective assessment of market rates, it is not inclined to
assign his declaration much weight. The 2014 NLJ survey from which he extrapolates rates
“does not . . . distinguish billing rates for partners and associates in terms of years of experience”
or even “the type of work performed.” Prunty v. Vivendi, 195 F. Supp. 3d 107, 114 (D.D.C.
2016). “[I]t is not a scientific study and” relies on “self-reported rates, which firms may reduce
in practice.” Blackman v. District of Columbia, 677 F. Supp. 2d 169, 176 (D.D.C. 2010), aff’d,
633 F.3d 1088 (D.C. Cir. 2011). He further distorts those numbers by considering only the
“high-end partner billing rate” in that data while casting the “low end billing rate” — which
appears more in line with Fitzpatrick rates — entirely aside. See Seldon Decl., ¶¶ 66–67 (“[T]he
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average low end billing rate for a partner is $721.25[.]”). Finally, there is obvious bias in
employment lawyers’ bolstering each other’s rates. If Melehy is successful in obtaining a high
rate, Seldon can then claim in his own next case that this is the prevailing rate to which he
himself is entitled. His declaration, though it certainly constitutes relevant evidence, cannot
shoulder the disproportionate weight Plaintiff places on it.
Brackett’s second declarant is another employment lawyer familiar with fees charged in
this type of litigation. See ECF No. 100-6 (Declaration of Nicholas Woodfield), ¶ 4. He adds
little of value. Id., ¶ 12 (asserting with no objective support that Plaintiff’s requested rates are
“consistent with the prevailing market rates”).
In addition to the declarations, however, Plaintiff also identifies the equivalent or higher
rates sought by other employment lawyers in related fee litigation. See Mot. at 9 & n.5, 15–16.
Some involve outlier rates or distinguishable legal services. See, e.g., Thomas v. Moreland, No.
18-800, 2022 WL 2168109, at *5 (D.D.C. June 16, 2022) (awarding LSI rates as sanctions in
defamation case); Ray v. CLH New York Ave. LLC, No. 19-2841, 2022 WL 2340708, at *5
(D.D.C. June 29, 2022) (granting $1,010 hourly rate for former head of global law firm’s D.C.
office). Still, the data includes three sets of relevant comparators. The first is a handful of
inflation-adjusted rates charged by four lawyers at two different D.C.-based civil-rights and
employment-focused law firms. See ECF No. 100-11 (Declaration of Emily Wilson), ¶¶ 9–10
(providing inflation-adjusted rates for a Relman Colfax associate comparable to Porter at
$844.80 and for Littler Mendelson partner comparable to Melehy at $1,015); Seldon Decl.,
¶¶ 81–83 (listing higher-than-LSI rates charged by two other Relman Colfax attorneys). The
second is a set of cases involving litigation pursuant to the Individuals with Disabilities
Education Act in which courts granted LSI rates. See B.J. v. District of Columbia, No. 19-2163,
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2020 U.S. Dist. LEXIS 249956, at *1, *8 (D.D.C. 2020), adopted, 2021 WL 5992052 (D.D.C.,
Feb. 10, 2021); U.F. v. District of Columbia, No. 19-2164, 2020 WL 4673418, at *1 (D.D.C.
Aug. 12, 2020). Third, Brackett cites to a set of cases decided six or more years ago —
including two Title VII cases — in which courts awarded LSI rates. See Mot. at 9 n.5 (listing
cases). Although DHS protests that these are “a handful of carefully selected, but
unrepresentative, data points,” Opp. at 15, they sufficiently buttress the LSI Matrix to pass the
burden onto Defendant. See DL, 924 F.3d at 591.
DHS, for its part, maintains that the LSI Matrix involves more archeology than
economics: it excavates survey data more than three decades old, then dusts off the cobwebs with
a blunt inflation factor. Defendant thus proposes looking to the Fitzpatrick Matrix, which uses
the same inflation-adjustment factor as the LSI Matrix but relies on a more recent and a broader
underlying dataset. It considers the fees sought in 86 cases from 2013 to 2020 and then lays out
a more finely tuned rate schedule that lists a different market rate for each additional year of
experience a lawyer brings instead of bundling experience levels into bands. See Opp. at 13;
Fitzpatrick Matrix at 1, 3. “Given this fee matrix’s novelty, no court has yet had occasion to
consider the reasonableness of the Fitzpatrick Matrix’s rates in an [employment-discrimination]
case,” J.T., 2023 WL 355940, at *10, and so none of the cases listed above on which Plaintiff
relies considered this alternative. As a testament to its success, some plaintiffs have begun to
rely on the Fitzpatrick Matrix in their fee requests, as Brackett does here for the remaining
members of her legal team. See, e.g., Naumes v. Dep’t of the Army, No. 21-1670, 2023 U.S.
Dist. LEXIS 114634, at *17 (D.D.C. July 5, 2023). In both published opinions in this district in
which the LSI and Fitzpatrick matrices have faced off, the latter has won out. See J.T., 2023 WL
355940, at *14–15; Louise Trauma Ctr. LLC v. Dep’t of Homeland Sec., No. 20-1128, 2023 WL
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3478479, at *4 (D.D.C. May 16, 2023) (explaining that “Fitzpatrick Matrix rates presumptively
apply” in complex federal litigation and citing J.T.).
The Government homes in on J.T., 2023 WL 355940, in which Judge Beryl A. Howell
concluded that the Fitzpatrick Matrix’s methodology met a defendant’s rebuttal burden and
established a more reasonable market rate than the LSI Matrix. See id. at *14–18. Reviewing
the same Fitzpatrick Declaration that DHS has filed here against a competing declaration of a
plaintiff’s economist, Judge Howell found that the Fitzpatrick Matrix (1) relies on more recent
data, thereby minimizing the distorting effects of forecasting current rates from decades-old
survey data, (2) draws from a larger and more transparent dataset, and (3) breaks rates out into
more precise gradations (providing rates for 36 experience levels where the LSI Matrix employs
only five). See id. at *15–16. Unlike previous USAO matrices rejected by the D.C. Circuit, the
Fitzpatrick Matrix also “limits itself to the relevant market for complex federal litigation in the
District of Columbia.” Id. at *16. The Court agrees. Although Brackett attempts to distinguish
J.T. as having concerned a less complex IDEA dispute, Judge Howell’s analysis of the relevant
market and the LSI Matrix’s methodological flaws did not turn on the complexity of that
litigation; indeed, complexity was not even at issue. See id. at *13 (“[D]efendant apparently
concedes that the relevant market is that of complex federal litigation. . . .”); Mot. at 6–7.
Plaintiff’s attempts to question the Fitzpatrick Matrix’s methodology are unavailing. She
first argues that its dataset is under-representative because her declarant, Seldon, looked through
the Fitzpatrick dataset and found that it excluded two fee disputes that he is familiar with and in
which plaintiffs were awarded LSI-based fees. See Mot. at 17; Seldon Decl., ¶¶ 72–74. That is
likely because the Fitzpatrick dataset excludes “rates that did not appear to be free market
transactions, including cases explicitly or implicitly based on an existing fee matrix.” ECF No.
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106-4 (Declaration of Brian T. Fitzpatrick), ¶ 9. Plaintiff offers no compelling explanation of the
problem with this strategy; nor is the Court convinced that Fitzpatrick’s decision to exclude two
cases that awarded LSI rates improperly skewed his 86-case dataset. By contrast, “[t]he exact
data points from which [the creator of the LSI Matrix] derived his rates seem lost to history, if
they were ever made available at all.” J.T., 2023 WL 355940, at *16.
Brackett also attempts to levy a hodgepodge of other methodological complaints. She
opens with a procedural one: that DHS never provided all of the “assumptions that [Fitzpatrick]
made or summaries he may have reviewed” when he developed his Matrix. See Mot. at 18.
Having reviewed Fitzpatrick’s declaration and the dataset he relied on — both of which are
available online — the Court does not see what more support could be necessary. See
Fitzpatrick Decl., ¶ 1; Civil Division: Attorney’s Fees, United States Attorney’s Office for D.C.,
https://perma.cc/D7ZU-TFZD (last visited July 26, 2023). Brackett next posits without support
that “Dr. Fitzpatrick’s formula is not a reliable measure of the legal market,” supposedly because
“the text he relied upon” to develop that formula “is not a study devoted to the legal market.”
Mot. at 17–18; see Seldon Decl., ¶ 77 (“I cannot lay claim to being a mathematician, . . . but
there is no way for a court to know if the formula Dr. Fitzpatrick . . . devised is a reliable
measure.”). That Fitzpatrick employed lessons from an economics rather than a legal textbook to
blend data from the cases he reviewed into a linear model reflects “common economic practice.”
J.T., 2023 WL 355940, at *17; Fitzpatrick Decl., ¶ 14. Brackett tries to play one last card: she
points out that since one of Fitzpatrick’s 86 cases involved rates higher than those she seeks here,
her proposed rate for Melehy “is supported by [Fitzpatrick’s] data.” Mot. at 18; see also Seldon
Decl., ¶¶ 83–84. It would have been better to fold, as this last argument only highlights the
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benefits of an 86-case dataset: it avoids exactly this kind of cherry picking.
The LSI Matrix is indeed like “other ‘80s fads before it . . . losing its shine.” DL, 924
F.3d at 594; see also Citizens for Resp. & Ethics in Wash., 142 F. Supp. 3d at 21–22 (describing
LSI Matrix’s “serious shortcomings”). This is not to say that it has gone entirely the way of the
boombox. But some cassette tapes do fade, and given the evidence presented here, the LSI
Matrix is an inferior measure of the prevailing market rate for Melehy and Porter. The Court
finds it appropriate to instead apply Fitzpatrick Matrix rates across the board.
Historical versus Current Rates
A second rate-related question remains: which of the annual updates to the Fitzpatrick
Matrix applies to past billed hours? Plaintiff asks the Court not to award her fees at the matrix
rates applicable at the time that the legal work was performed, but to instead apply the higher,
inflation-adjusted rates that apply today to work performed years ago. Her request invokes an
axiom that any economist would recite in her sleep: a dollar today is worth more than one
tomorrow. “[P]ayment today for services rendered long in the past” therefore “deprives the
eventual recipient of the value of the use of the money in the meantime.” West v. Potter, 717
F.3d 1030, 1034 (D.C. Cir. 2013) (quotation marks and citation omitted). The standard approach
is to award “[p]ayment at a matrix’s current rates,” which “approximates the appropriate
adjustment for inflation and thereby simulates what the attorney would have earned had she been
promptly paid at the time she performed the work.” J.T., 2023 WL 2716687, at *1; see Lewis,
2018 WL 6308722, at *10 (“Given the difficulty in calculating the true present value of past
rates, courts in this district — including this one — have often opted for [this] approach.”).
Although Defendant contends that current rates are awarded only when the delay in
payment is a defendant’s fault, see Opp. at 20–21, and Plaintiff argues that “[t]he fault of the
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Defendant should not factor into the calculus” at all, see Reply at 9, neither is quite right. In
assessing whether to award current or historical rates, courts may consider, among other factors,
whether the delay in payment was “unusually long []or attributable to the defendant’s dilatory or
stalling conduct.” West, 717 F.3d at 1034; see also Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 556 (2010) (“[A]n enhancement may be appropriate where an attorney assumes these costs
in the face of unanticipated delay, particularly where the delay is unjustifiably caused by the
defense.”). They may conversely consider whether any “long periods of delay” were
“attributable to choices made by Plaintiffs, not impropriety or foot-dragging by the defense.”
Hartman v. Pompeo, No. 77-2019, 2020 WL 6445873, at *16 (D.D.C. Nov. 3, 2020). The
determination is discretionary. Compare Hernandez v. Chipotle Mexican Grill, Inc., 257 F.
Supp. 3d 100, 103, 113 (D.D.C. 2017) (awarding current rates in employment-discrimination
litigation spanning three years); Young v. Sarles, 197 F. Supp. 3d 38, 51 (D.D.C. 2016) (same in
First-Amendment litigation spanning less than two years), with Tridico v. District of Columbia,
235 F. Supp. 3d 100, 107 (D.D.C. 2017) (applying historical rates to employment-discrimination
litigation spanning two years).
Plaintiff maintains that “historical rates would grossly undercompensate” her because
“her counsel took the case on a contingency basis” and because this dispute “had been ongoing
for more than eight years” (i.e., two years at the agency level and more than five years of
litigation and settlement discussions). See Reply at 2. She sets the blame for this timeline
squarely on DHS’s shoulders, pointing to (1) its nearly year-long delay in acting on her
complaint to the agency, (2) the cumulative year of delay created by the extensions Defendant
sought and received from this Court, and (3) DHS’s “dragg[ing] its feet throughout the discovery
process,” to which she ascribes three more years of delay. Id. at 9–11. Instead of addressing
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these allegations, DHS points its finger back at Plaintiff for taking two-and-a-half years to file
her Second Amended Complaint and for prolonging discovery with unnecessary depositions and
requests to “use the Court as a substitute for” good-faith negotiation. See Opp. at 2, 5–6.
Both parties caused avoidable delays throughout this litigation. See, e.g., ECF No. 69
(Transcript of May 27, 2021 Hearing) at 3, 7 (Court: “I think we have to extend deadlines for
you both to do it right. . . . [Y]ou guys are just talking past each other.”). If Defendant proceeded
through discovery at a tortoise’s pace, Plaintiff has at times been Aesop’s hare — she veered off
course several times throughout this litigation, unnecessarily prolonging the pleading and
discovery stages. See, e.g., Brackett, 2021 WL 5711936, at *3 (describing Brackett’s pleading
as “unhelpfully broken into eleven subparts”). Given that both parties were partially responsible
for the extent of the delays, however, and wary of declaring a winner in this race to the bottom
and of discouraging contingency-based representation in cases that drag on longer than expected,
the Court will stick to the standard approach and award current rates. It will do so, however,
only within reason. Hence, although DHS unhelpfully declines to clarify its position on which
Fitzpatrick Matrix rates constitute the “current” ones, the Court rejects Plaintiff’s request to use
the recently published 2023 Fitzpatrick Matrix instead of the 2022 Matrix that she relied on
when she first filed her Motion. See Mot. at 6 (seeking 2022 rates); Supp. Mot. at 1 (seeking
update to since-released 2023 rates); Opp. to Supp. Mot. at 1–3 (taking no position). The 2022
rates will apply even to the subset of hours worked on this fee litigation in 2023. Otherwise, the
Court would be rewarding Plaintiff’s efforts to drag out this fee litigation.
With the finish line in sight, the Court makes one final clarification before assessing the
hours for which Plaintiff seeks fees. Defendant understands Brackett not only to be seeking
current, inflation-adjusted matrix rates for past work, but also to improperly apply the rate
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corresponding to attorneys’ current experience level to work those attorneys performed while
less experienced. See Opp. at 21–22. Plaintiff seeks no such experience-based retroactivity.
See Reply at 2; see, e.g., ECF No. 109-1 (Revised Time Entries) at 13, 54 (charging experience-
based rates for attorney Andrew Balashov). Fees will be awarded at the 2022 Fitzpatrick rate
corresponding to an attorney’s level of experience at the time the work was performed. Now on
to hours.
B. Appropriate Hours
The parties next dispute the number of hours for which Brackett may recover fees.
Plaintiff bears the burden here, too. See Covington, 57 F.3d at 1107. A party requesting fees
must exercise its “billing judgment” and exclude from its request hours that “are excessive,
redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The
Supreme Court has instructed courts to take up this mantle when a party fails to do so and
“exclude from [the] fee calculation hours that were not ‘reasonably expended.’” Id. (quoting S.
Rep. No. 94-1011, at 6 (1976)). District courts have “wide discretion to reduce individual fee
entries.” Nat’l Venture Cap. Ass’n v. Nielson, 318 F. Supp. 3d 145, 152 (D.D.C. 2018) (citation
omitted). Still, courts must not become “green-eyeshade accountants,” sequentially weighing the
propriety of each entry listed in the movant’s request. Fox v. Vice, 563 U.S. 826, 838 (2011).
The goal here is “rough justice.” Id.DHS argues that Plaintiff overstaffed this case and billed excessive time on
straightforward tasks. See Opp. at 22–23. The Court generally agrees: Brackett employed a
small army of four attorneys, four paralegals, and two law clerks in this single-plaintiff
employment dispute, several of whom often billed simultaneously. See Reply at 12–14. By
contrast, DHS devoted “one Assistant U.S. Attorney at a time” to the case. See Opp. at 23.
Although Brackett’s case involved some legal and factual complexities, they amounted to a
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fraction of those present in the one similarly staffed single-plaintiff discrimination case to which
she cites as justification for her staffing. See Reply at 12–13; Hernandez, 257 F. Supp. 3d at 107
(citing among other justifications for staffing a “plaintiff’s limited familiarity with her former
employer’s policies and practices, the location of . . . relevant witnesses in Colorado, the need for
translators for the plaintiff and a number of witnesses who spoke only Spanish”). Recognizing,
however, that Defendant “must present detailed and specific reasons why the applicant’s request
should be reduced or denied,” Beck v. Test Masters Educ. Servs., Inc., 73 F. Supp. 3d 12, 17
(D.D.C. 2014); see also Reply at 11, the Court will apply cuts for overstaffing and overbilling
only to those billing categories in which DHS identifies specific examples, before cutting
Plaintiff’s request for fees incurred in filing this Motion (i.e., fees on fees) proportionally. The
Court will refer throughout this discussion to the figures in Plaintiff’s First Supplement to her
Motion, which corrects various calculation errors, removes charges for some items, and adds in
hours for fees on fees expended since filing her Motion. See Supp. Mot. at 1.
Fees on the Merits
DHS specifically disputes the reasonableness of the hours that Brackett’s legal team spent
on agency proceedings regarding her proposed suspension, and on the pleadings, discovery, and
dispositive briefing in this Court. The Court will take each in turn.
a. Proposed Suspension
Before this litigation began, Brackett’s counsel assisted her in responding to a Notice of
Proposed Suspension that her employer issued against her. The Court agrees with DHS that the
nearly 40 hours billed on this pre-litigation action, totaling over $30,000 in requested fees, are
excessive. See Opp. at 23. Defendant points as an example to the more than $10,000 that
Brackett requests for Porter’s work on drafting a response to her proposed suspension. Id.;
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Revised Entries at 3–4. Several additional entries for reviewing and revising various emails and
letters to the individuals involved also appear excessive and redundant. See Revised Entries at 4.
The Court will apply a 20% haircut to the hours billed in this category.
b. Pleadings
Defendant is correct to point out that Brackett amended her Complaint twice, filing what
became the operative Complaint two-and-a-half years after she filed her first. See Brackett, 2021
WL 5711936, at *3; Opp. at 25. Even that pleading was “unhelpfully broken into eleven
subparts,” leaving the Court to wade through two claims in it that were “not made out with
particular lucidity.” Brackett, 2021 WL 5711936, at *3. Plaintiff attempts to make lemonade,
explaining that her years-long effort to pare down her Complaint ultimately made this litigation
more manageable for all involved. See Reply at 14–15. It did exactly the opposite, delaying
expeditious litigation on a fact-heavy dispute that turned in part on the memory of various
deponents. The juice cannot have been worth the squeeze. The Court appreciates Brackett’s
effort to no-charge some particularly excessive hours in this category, see id. at 15–16, but finds
that those minor cuts are not enough, as her fee table still includes multiple charged entries for
revisions to a Complaint that should not have required such heavy refashioning. See Revised
Entries at 15. Another 20% cut applies here.
c. Discovery and Discovery Motions
Brackett’s entries for discovery and discovery motions comprise nearly half of the fees
she requests, totaling over 480 hours and nearly $280,000 in fees. See Revised Entries at 1.
These are excessive. One choice example is Brackett’s decision to depose a witness with no
knowledge of the relevant dispute. See ECF No. 106-1 (Transcript of Deposition of Jeffrey
Krauss) (Melehy: “Is it fair to say that you have absolutely no knowledge of this Cindy Brackett
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investigation matter?” Krauss: “No, I didn’t.” Melehy: “I don’t have any further questions of
this witness.”). To modify the popular millennial phrase, that deposition could have been an
email. Yet Brackett’s time entries are bloated with hours billed in preparation for the
anticlimactic exchange. See, e.g., Revised Entries at 31.
The Court is also not inclined to reward Brackett’s filing of unnecessary discovery
motions. See Opp. at 5; ECF Nos. 27, 43 (demonstrating Brackett’s resort to this Court for
minor disputes that parties ultimately resolved among themselves). Acknowledging her
excessive reliance on this Court during the discovery period, Brackett has applied a 10% trim to
the hours in this category. See Reply at 16, 18. She still, however, maintains that resorting to
the gavel was necessary to secure DHS’s cooperation. See id. at 18. The Court finds that
account generally unpersuasive and will replace Plaintiff’s 10% reduction in the discovery-
motions category with a larger 30% reduction to the hours billed in both the discovery and
discovery-motions categories.
d. Dispositive Motions
The final merits category, and the second-most-expensive category overall, contains over
140 hours, totaling nearly $130,000, billed for briefing on summary judgment. See Revised
Entries at 1. Defendant correctly points out that the Court ordered Brackett to refile her
Opposition to comply with the Local Rules, see Brackett, 2021 WL 5711936, at *3, and Brackett
should not be rewarded for hours attributable to her counsel’s failure to comply with the
straightforward requirement that she delineate responses to Defendants’ statement of facts and
include a background summary of the facts. See Opp. at 6; Hearing Tr. at 8 (observing that
although both parties needed to refile, “it will take less time for the [G]overnment” to fix errors
in its filings than for Brackett to fix hers). Although the Court appreciates Brackett’s effort to
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no-charge hours spent on the non-compliant factual summary and her application of a 10%
reduction to the hours in this category, see Reply at 20–21, the time billed for reviewing and
revising the briefing remain unreasonable even after those adjustments. The Court will therefore
replace Brackett’s 10% reduction with a higher, 15% reduction.
***
As Defendant has not specifically challenged them, the Court will not apply cuts to
Plaintiff’s requested costs or to the hours spent on her remaining merits categories, which appear
in the schedule that follows. See Reply at 2. The Court’s reductions amount to an award of
approximately 70% of the merits fees that Plaintiff sought.
Fees Sought
Fees Sought After Applying
Brackettʼs Fitzpatrick Rates Courtʼs After Courtʼs
Categorical and Before % Categorical % Categorical
Category Reductions Reductions Reductions Reductions
PROPOSED SUSPENSION $ 32,249.70 $ 24,036.90 20% $ 19,229.52
ADMINISTRATIVE PROCEEDINGS $ 38,369.10 $ 28,670.60 0% $ 28,670.60
FACTUAL INVESTIGATION $ 25,340.10 $ 20,734.40 0% $ 20,734.40
PLEADINGS $ 20,967.60 $ 15,840.60 20% $ 12,672.48
CASE MANAGEMENT $ 16,315.80 $ 13,107.60 0% $ 13,107.60
DISCOVERY $ 212,750.03 $ 178,838.51 30% $ 125,186.96
DISCOVERY MOTIONS $ 67,060.44 $ 62,152.90 30% $ 43,507.03
DISPOSITIVE MOTIONS $ 128,325.16 $ 112,474.47 15% $ 95,603.30
RESEARCH $ 9,477.40 $ 7,699.00 0% $ 7,699.00
SETTLEMENT $ 52,131.90 $ 40,707.90 0% $ 40,707.90
TRAVEL $ 1,971.35 $ 1,541.25 0% $ 1,541.25
AGREEMENT ENFORCEMENT $ 1,663.60 $ 1,352.00 0% $ 1,352.00
COSTS $ 40,313.22 $ 40,313.22 0% $ 40,313.22
Merits Subtotal $ 646,935.40 $ 450,325.26
Effective Merits Award Rate 70%
Fees on Fees
The Court concludes by considering whether to add in fees for time spent on this fee
litigation. Courts in this district have concluded that awards of “fees on fees” should be reduced
to exclude the amount of time spent unsuccessfully defending fee requests denied by the court.
See, e.g., Nat’l Veterans Legal Servs. Program v. U.S. Dep’t of Veterans Affs., No. 96-1740,
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1999 WL 33740260, at *5–6 (D.D.C. Apr. 13, 1999); see also INS v. Jean, 496 U.S. 154, 163
n.10 (1990) (“[F]ees for fee litigation should be excluded to the extent that the applicant
ultimately fails to prevail in such litigation.”).
Plaintiff is correct to point out that Defendant’s Opposition is silent on the hours she
charged for her fee petition, likely because she has preemptively applied a 10% categorical
reduction to them. See Reply at 11; Opp. at 22–25. As a result of this concession, the Court will
not further cut Plaintiff’s requested fees on her opening fee brief. In her Supplement to the
Motion, however, Plaintiff has added in additional hours for time spent on the Reply in support,
and Defendant now argues that this addition is “patently unreasonable.” See Opp. to Supp. Mot.
at 1. The Court agrees — Plaintiff seeks to bill nearly 50 hours, and charge over $40,000, for her
Reply brief alone. See Revised Entries at 1. The Court, accordingly, will follow the lead of
other courts in this district and award Plaintiff “the same percentage of fees for fee litigation as it
does for fees on the merits.” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 982 F. Supp.
2d 56, 61 (D.D.C. 2013). It does so by applying the effective award rate derived from its cuts to
the fees on everything else (70%) to Brackett’s requested fees for her Reply brief after they are
modified to reflect Fitzpatrick rates, resulting in an effective categorical reduction to Brackett’s
requested fees on her Reply brief of 32%. The final award comes out to $526,101.70 and is
summarized below.
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Fees Sought
Fees Sought After Applying
Brackettʼs Fitzpatrick Rates Courtʼs After Courtʼs
Categorical and Before % Categorical % Categorical
Category Reductions Reductions Reductions Reductions
PROPOSED SUSPENSION $ 32,249.70 $ 24,036.90 20% $ 19,229.52
ADMINISTRATIVE PROCEEDINGS $ 38,369.10 $ 28,670.60 0% $ 28,670.60
FACTUAL INVESTIGATION $ 25,340.10 $ 20,734.40 0% $ 20,734.40
PLEADINGS $ 20,967.60 $ 15,840.60 20% $ 12,672.48
CASE MANAGEMENT $ 16,315.80 $ 13,107.60 0% $ 13,107.60
DISCOVERY $ 212,750.03 $ 178,838.51 30% $ 125,186.96
DISCOVERY MOTIONS $ 67,060.44 $ 62,152.90 30% $ 43,507.03
DISPOSITIVE MOTIONS $ 128,325.16 $ 112,474.47 15% $ 95,603.30
RESEARCH $ 9,477.40 $ 7,699.00 0% $ 7,699.00
SETTLEMENT $ 52,131.90 $ 40,707.90 0% $ 40,707.90
TRAVEL $ 1,971.35 $ 1,541.25 0% $ 1,541.25
AGREEMENT ENFORCEMENT $ 1,663.60 $ 1,352.00 0% $ 1,352.00
COSTS $ 40,313.22 $ 40,313.22 0% $ 40,313.22
Merits Subtotal $ 646,935.40 $ 450,325.26
Effective Merits Award Rate 70%
FEE PETITION $ 55,478.34 $ 53,571.80 10% $ 48,214.62
FEE PETITION - REPLY $ 40,344.00 $ 39,595.20 32% $ 27,561.82
Total Fees Requested $ 742,757.74 Total Fees Awarded $ 526,101.70
IV. Conclusion
For these reasons, the Court will grant in part and deny in part Plaintiff’s Motion for
Attorney’s Fees. A separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
Chief Judge
Date: August 9, 2023
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