A recent NLJ story, “Two D.C. Judges’ Rulings on Fees Could Mean Boon for Plaintiffs Lawyers,” reports that a pair of federal judges in Washington awarded legal fees last week that went more than $100,000 beyond what the federal government said was justified, issuing opinions that could prove a boon for plaintiffs lawyers.
The U.S. Justice Department has consistently argued that the goal of fee-shifting statutes is to ensure the availability of an adequate supply of competent counsel, not to guarantee that lawyers receive the same fees as the highest-compensated attorneys in the relevant market.
But on Feb. 8, U.S. District Judge Beryl Howell found that attorney Robert Seldon was entitled to a higher rate for the 344 hours he spent preparing for trial and successfully presenting a complex gender discrimination case against the U.S. Labor Department.
The government and Seldon’s team had already agreed to an interim award of nearly $635,000 based on the Laffey matrix, the federal government’s favored tool for determining the attorney fees owed to a legal adversary.
But after reviewing Seldon’s credentials and the market rate for attorneys with his experience, Howell ruled that he should receive an additional $92,500 for his trial preparation and presentation based on the higher hourly rates outlined in the so-called LSI matrix. Seldon, a former assistant U.S. attorney in the civil division, noted in court filings that he has nearly 40 years of experience and had won four previous verdicts in employment cases against the U.S. attorney’s office.
Three days after Howell’s decision, another judge in the U.S. District Court for the District of Columbia awarded the Citizens for Responsibility and Ethics in Washington (CREW) nearly $40,400—an amount that was also calculated, in part, by applying the LSI matrix.
Seldon said that for exceptionally qualified attorneys, the court’s decisions could spell “the end of the Laffey matrix.”
“This is sort of like a demolition crew. There’s still more that’s taking it apart,” Seldon, the founder of Seldon Bofinger & Associates, said of the Laffey matrix. “But you’re looking at a decision that’s the death knell for the Laffey matrix, definitely.”
When he first decided attorney fees last year, U.S. District Judge Christopher Cooper awarded $35,000 to the Citizens for Responsibility and Ethics in Washington. Saying that CREW’s request “represents top dollar in the Washington legal market,” the Justice Department had suggested an an award of about $24,300 using the Laffey matrix.
The Justice Department appealed Cooper’s fee award to the U.S. Court of Appeals for the D.C. Circuit, arguing that CREW had failed to meet its burden of proving that the elevated rates reflected the prevailing costs for Freedom of Information Act litigation in the Washington area. While the appeal was pending, the D.C. Circuit ruled in Eley v. District of Columbia that the district court had improperly relieved the plaintiff of her burden to show that the higher rates were reasonable.
In light of that decision, the Justice and CREW agreed to remand the case back to the district court. While their case was still pending, the D.C. Circuit approved the use of the higher rates in Salazar v. District of Columbia, a Medicaid class action, later in 2015.
The D.C. Circuit panel handling the Salazar case explained that, in the Eley case, the government showed that submarket exists for claims under the Individuals with Disabilities Education Act “in which attorneys’ hourly fees are generally lower than the rates in either of the Laffey matrices.” But in the Salazar case, the D.C. Circuit found that the government had neither identified a similar submarket nor contested the complexity of the litigation.
Cooper wrote in his fee award opinion that the same was true of CREW’s case.
“Judge Cooper’s decision really gets to the essence of it: If you can show it, you can get it,” said Steven Davidson, a partner at Steptoe & Johnson LLP, who gave an expert declaration on billing rates in Washington.
Together, Cooper and Howell’s rulings signal a shift, Seldon said. “What you’re getting here is a change, and the people who have being doing this are finally going to get compensated at a rate that’s fair. What it’s going to do is keep highly qualified attorneys in this field.”