Eley v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2015 Decided July 10, 2015

No. 13-7196

WILMA ELEY,

APPELLEE

v.

DISTRICT OF COLUMBIA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00309)

Richard S. Love, Senior Assistant Attorney General,

Office of the Attorney General of the District of Columbia,

argued the cause for the appellant. Irvin B. Nathan, Attorney

General at the time the brief was filed, Todd S. Kim, Solicitor

General, and Loren L. AliKhan, Deputy Solicitor General,

were with him on brief.

Douglas W. Tyrka argued the cause and filed the brief for

the appellee.

Bruce J. Terris, Carolyn Smith Pravlik, and Kathleen L.

Millian were on brief for amici curiae The Class Members In

Salazar v. District of Columbia in support of the appellee.

2

Before: HENDERSON and KAVANAUGH, Circuit Judges,

and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge KAVANAUGH.

KAREN LECRAFT HENDERSON, Circuit Judge: After

Wilma Eley prevailed in her lawsuit against the District of

Columbia (District) alleging a violation of the Individuals

with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et

seq., the district court awarded her $62,225 in attorneys’ fees

and costs for approximately one hundred hours of work.

Although the District lodged a variety of challenges to the

award in the district court, its sole objection on appeal is to

the prevailing market rate that court used in its calculation.

Specifically, the District argues that the district court abused

its discretion when it adopted Eley’s proposed fee matrix,

setting the prevailing market rate for her lawyer’s services

well beyond the next highest hourly rate used by district

courts in IDEA litigation. For the reasons set forth below, we

vacate the district court’s fee award and remand.

I. BACKGROUND

The IDEA requires the District to provide disabled

children with a “free appropriate public education.” 20

U.S.C. § 1400(d)(1)(A); see also id. § 1412(a)(1) (free

appropriate public education “available to all children with

disabilities . . . between the ages of 3 and 21, inclusive”). If

the District fails to do so, the child’s parents can file an

administrative complaint with the District Office of the State

Superintendent of Education (Superintendent’s Office). Id.

3

§ 1415(b)(6). 1 And if the administrative-complaint route

fails, the parents can sue the District in district court. See id.

§ 1415(i)(2)–(3).

If the parents’ lawsuit succeeds, the court, “in its

discretion, may award reasonable attorneys’ fees.” Id.

§ 1415(i)(3)(B)(i)(I). An IDEA fee award “shall be based on

rates prevailing in the community in which the action or

proceeding arose for the kind and quality of services

furnished.” Id. § 1415(i)(3)(C) (emphases added). Thus, if

the court finds that “the amount of the attorneys’ fees

otherwise authorized to be awarded unreasonably exceeds the

hourly rate prevailing in the community for similar services

by attorneys of reasonably comparable skill, reputation, and

experience,” it “shall reduce . . . the amount of the attorneys’

fees awarded.” Id. § 1415(i)(3)(F)(ii) (emphasis added).

The IDEA provides no further guidance for determining

an appropriate fee award. In Blum v. Stenson, 465 U.S. 886,

895 n.11 (1984), however, the United States Supreme Court

laid the foundation for the three-part analysis that this Court

has since developed. First, the court must determine the

“number of hours reasonably expended in litigation.” Save

Our Cumberland Mountains, Inc. v. Hodel (SOCM), 857 F.2d

1516, 1517 (D.C. Cir. 1988) (en banc). 2 Second, it must set

1

See also D.C. Code § 38-2601.01 (Superintendent’s Office

“perform[s] the functions of a state education agency for the

District of Columbia under applicable federal law”).

2

We apply the respective analyses from Blum and SOCM

notwithstanding both cases involved different attorneys’ fees

statutes. See Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S.

754, 759 n.2 (1989) (“[F]ee-shifting statutes’ similar language is a

strong indication that they are to be interpreted alike.” (quotation

marks omitted)).

4

the “reasonable hourly rate.” Id. Finally, it must determine

whether use of a multiplier is warranted. Id. The “fee

applicant bears the burden of establishing entitlement to an

award, documenting the appropriate hours, and justifying the

reasonableness of the rates” and the opposing party remains

“free to rebut a fee claim.” Covington v. Dist. of Columbia,

57 F.3d 1101, 1107–08 (D.C. Cir. 1995).

Here, the District no longer challenges the hours Eley’s

lawyer spent litigating her IDEA case, and the IDEA prohibits

application of any “bonus or multiplier,” 20 U.S.C.

§ 1415(i)(3)(C). Accordingly, we move to the second prong

of the SOCM analysis—the reasonable hourly rate. Whether

an hourly rate is reasonable turns on three sub-elements:

(1) “the attorney[’s] billing practices,” (2) “the attorney[’s]

skill, experience, and reputation” and (3) “the prevailing

market rates in the relevant community.” Covington, 57 F.3d

at 1107. Of these three sub-elements, the District contests

only the prevailing market rate in the relevant community.

Determining the prevailing market rate is “inherently

difficult.” Blum, 465 U.S. at 895 n.11. Even so, “[t]he

complexity of the market for legal services does not . . .

reduce the importance of fixing the prevailing hourly rate in

each particular case with a fair degree of accuracy.” Nat’l

Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319,

1325 (D.C. Cir. 1982). Thus, 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.”

Blum, 465 U.S. at 895 n.11 (emphasis added); see also Nat’l

Ass’n of Concerned Veterans, 675 F.2d at 1325 (“An

applicant is required to provide specific evidence of the

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prevailing community rate for the type of work for which he

seeks an award.” (emphasis added)).

We allow a fee applicant to submit attorneys’ fee

matrices as one type of evidence that “provide[s] a useful

starting point” in calculating the prevailing market rate.

Covington, 57 F.3d at 1109. The most commonly used fee

matrix is the “Laffey Matrix”—the schedule of prevailing

rates compiled in Laffey v. Northwest Airlines, Inc. (Laffey I),

572 F. Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in

part on other grounds, Laffey v. Nw. Airlines, Inc. (Laffey II),

746 F.2d 4 (D.C. Cir. 1984), overruled in part on other

grounds, SOCM, 857 F.2d 1516. See Covington, 57 F.3d at

1109. Laffey I established (and Laffey II affirmed) the

following schedule for lawyers who practice “complex federal

litigation”:

—$175 an hour for very experienced federal

court litigators, i.e., lawyers in their 20th year

or more after graduation from law school;

—$150 an hour for experienced federal court

litigators in their 11th through 19th years after

law school graduation;

—$125 an hour for experienced federal court

litigators in their 8th through 10th years after

graduation from law school;

—$100 an hour for senior associates, i.e., 4 to

7 years after graduation from law school; and

—$75 an hour for junior associates, i.e., 1 to 3

years after law school graduation.

Laffey I, 572 F. Supp. at 371–72; Laffey II, 746 F.2d at 8 n.14.

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Fee matrices in general are “somewhat crude” and the

Laffey Matrix in particular “lumps attorneys with four to

seven years of experience in the same category” as well as

“attorneys with eleven to nineteen [years].” Covington, 57

F.3d at 1109. For this reason, a fee applicant supplements fee

matrices with other evidence such as “surveys to update

the[m]; affidavits reciting the precise fees that attorneys with

similar qualifications have received from fee-paying clients in

comparable cases; and evidence of recent fees awarded by the

courts or through settlement to attorneys with comparable

qualifications handling similar cases.” Id. Additionally,

because the original Laffey Matrix is now more than thirty

years old, it must be updated to account for inflation. See

SOCM, 857 F.2d at 1525. Competing updated Laffey

Matrices have developed, two of which are at issue here.

Both have their benefits and limitations.

The first Laffey Matrix is maintained and updated by the

District United States Attorney’s Office (USAO Laffey

Matrix). See USAO Laffey Matrix – 2014-2015, available at

http://www.justice.gov/sites/default/files/usao-dc/legacy/2014

/07/14/Laffey%20Matrix_2014-2015.pdf. The USAO Laffey

Matrix starts with “[t]he hourly rates approved in Laffey . . .

for work done principally in 1981–82” as its baseline. Id. ¶ 3.

It adjusts these rates to account for inflation by using the

Consumer Price Index for All Urban Consumers (CPI-U) of

the United States Bureau of Labor Statistics. Id. The CPI-U

measures inflation across “100,000 commodities including

food, fuel, and housing” for a given geographic area—here,

the Washington, D.C area. Amicus Br. 4. Yet, “[l]ess than

0.325 percent of the data” in the CPI-U “involves legal

services.” Id. And according to the district court, the CPI-U

“shows that the cost of legal services nationally has far

outstripped the increase in overall prices.” Eley v. Dist. of

Columbia (Eley II), 999 F. Supp. 2d 137, 153 (D.D.C. 2013);

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see also id. (“The nationwide cost of legal services has

jumped ninety-one percent, nearly twice as much as the

general CPI”). During Eley’s IDEA litigation, the USAO

Laffey Matrix suggests that a litigator specializing in complex

federal litigation with 11 to 19 years’ experience should

receive between $420 and $445 per hour.

Because the USAO Laffey Matrix relies on inflation in

general rather than legal-services inflation specifically, its

critics have advocated, to some degree of success, 3 for a

competing Laffey Matrix (LSI Laffey Matrix) that uses the

Legal Services Index of the Bureau of Labor Statistics to

adjust for inflation. Developed by Michael Kavanaugh, an

economist from Hawaii, the LSI Laffey Matrix adjusts for the

increases in costs for legal services only. It suffers, however,

from its own imprecisions. Rather than tracking inflation

levels specific to Washington, D.C., the LSI Laffey Matrix

tracks the national rate of change in the cost of legal services.

During Eley’s IDEA litigation, the LSI Laffey Matrix suggests

that a litigator specializing in complex federal litigation with

11 to 19 years’ experience should receive $625 per hour. 4

3

See, e.g., Salazar v. Dist. of Columbia, 123 F. Supp. 2d. 8,

15 (D.D.C. 2000) (LSI Laffey Matrix “more accurately reflects the

prevailing rates for legal services in the D.C. community”).

4

There are other differences between the USAO Laffey

Matrix and the LSI Laffey Matrix. See generally Amicus Br. 8–14

(comparing two matrices in greater depth). For example, the LSI

Laffey Matrix uses as its starting point the rates established in 1989

after our en banc decision in SOCM rather than the “hourly rates

approved in Laffey” that “were for work done principally in 1981–

82.” See Laffey Matrix – 2014–2015, supra, ¶ 3; see also SOCM,

857 F.2d at 1525 (discussing Laffey Matrix and suggesting parties

develop “a similar schedule of prevailing community rates for other

relevant years”).

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On September 13, 2010, Eley filed an administrative

complaint with the Superintendent’s Office, alleging that the

District violated the IDEA by failing to place her special-

needs child in an appropriate public school. A hearing officer

denied her claim but Eley successfully challenged the denial

in district court. See Eley v. Dist. of Columbia (Eley I),

No. 1:11-cv-309, 2012 WL 3656471, at *1 (D.D.C. Aug. 24,

2012). After concluding that Eley was entitled to

reimbursement for the money she spent on her child’s

education, the district court remanded her case to the

Superintendent’s Office, which awarded her $2,850.

Eley then filed a motion for attorneys’ fees and costs,

seeking $62,225 for 97.5 hours of work (approximately one-

third of which occurred at the administrative stage) and 3

hours of travel, as well as $350 for filing fees. To arrive at

this figure, Eley used the prevailing market rate set forth in

the LSI Laffey Matrix, which reflected that her lawyer should

receive $625 per hour. To support her use of the LSI Laffey

Matrix, Eley submitted a verified statement from her lawyer,

averring that:

• his firm has “always” charged the hourly rates

in the LSI Laffey Matrix;

• “[t]he current hourly rate for [his] time is

$625.00 per hour”;

• his firm had settled cases in which the District

“paid the firm 99.9% of what was billed” after

applying a statutory fee cap;

• “[t]he expenses in [his] itemization are the

charges customarily paid in this field in this

jurisdiction”;

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• “at least 95% of [his] practice has been in the

field of special education law”; and in his

“conservative and educat[ed] estimate,” he

has “litigated over 1000 IDEA administrative

cases and over 20 IDEA federal cases.”

Verified Statement of Douglas Tyrka ¶¶ 7–9, 15. Eley also

submitted her lawyer’s verified time sheets and a declaration

of Michael Kavanaugh (prepared for a different case),

explaining the methodology Kavanaugh used to generate the

LSI Laffey Matrix. The District contested Eley’s attorneys’

fees request, arguing that the district court should award

$749.25 only. In so doing, it cited over forty cases in which

district courts had awarded attorneys’ fees awards in IDEA

cases based on prevailing market rates set at (or below) the

USAO Laffey Matrix, not one of which exceeded $425 per

hour. In contrast, Eley cited only four cases in which district

courts had used the LSI Laffey Matrix, none of which

involved IDEA litigation.

The district court referred Eley’s motion to a magistrate

judge, who declined to use the $625 figure from the LSI

Laffey Matrix. He reasoned that Eley failed to submit

evidence demonstrating entitlement to an “elevated hourly

rate.” R & R 8–9. Starting instead with the rates in the

USAO Laffey Matrix (between $420 and $445 per hour), the

magistrate reduced those rates by twenty-five per cent

(between $315 to $333.75) in accordance with other IDEA

cases. See R & R 9–10 (discussing Rooths v. Dist. of

Columbia, 802 F. Supp. 2d 56, 62–63 (D.D.C. 2011);

McClam v. Dist. of Columbia, 808 F. Supp. 2d 184, 190

(D.D.C. 2011)). Because the Laffey Matrix was created for

“complex federal litigation in the District of Columbia” and it

contains presumptive maximum rates, id. at 9 (emphasis

added), the magistrate found the maximum Laffey rates “not

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appropriate” for Eley’s IDEA litigation, id. at 10. Multiplying

the number of hours by his chosen hourly rate, the magistrate

recommended that Eley receive $40,620.32 in fees and costs.

Both sides objected to the magistrate’s report and

recommendation. Eley challenged the magistrate’s choice of

prevailing market rate, and the District attacked on multiple

fronts, urging the district court to reduce the award from

$40,620.32 to no more than $2,900.62. The district court

largely ruled in favor of Eley. The court first compared the

USAO and LSI Laffey Matrices, ultimately deciding to use

the LSI Laffey Matrix. Despite the “major criticism” that the

LSI Laffey Matrix is “only indicative of ‘the prevailing

market rates for attorneys engaged in complex federal

litigation in the “big firm” context,’ ” Eley II, 999 F. Supp. 2d

at 154 (quoting Heller v. Dist. of Columbia, 832 F. Supp. 2d

32, 45 (D.D.C. 2011) (alterations omitted)), the court

observed that Blum and SOCM held, respectively, that

nonprofit lawyers and lawyers who charge reduced rates for

certain types of litigation are entitled to receive the same

prevailing market rate as private counsel who prevail in

“equally complex Federal litigation.” Id. at 155 (citing Blum,

465 U.S. at 895; SOCM, 857 F.2d at 1524). At bottom, the

court concluded that Eley’s lawyer’s verified statement, “as

well as [Kavanaugh’s] declaration explaining the

methodology and rationale for the updated rates,”

demonstrated that the LSI Laffey Matrix was “an appropriate

measure of the prevailing community rates for attorneys in the

Washington, D.C. area.” Id. at 156.

Next, the district court rejected the District’s argument

that “IDEA cases do not represent sufficiently complex

federal litigation to warrant the presumptive use of the USAO

matrix as the prevailing market rate, let alone the LSI-

adjusted rates requested by [Eley].” Id. at 157. It did so after

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concluding that “some version of the Laffey matrix is

presumptively reasonable in civil rights litigation,” that “a

complexity determination is not the dispositive question as to

whether such rates apply” and that, in any event, nothing in

D.C. Circuit precedent “indicates that IDEA cases, as a subset

of civil rights litigation, fail to qualify as ‘complex’ federal

litigation.” Id. at 159. In ordering the District to pay the full

$62,225 requested by Eley, the court noted that the

“complexity of [a] case is accounted for by the number of

hours expended” and “should not be accounted for by a blunt

reduction of rates before applying the rates to the number of

hours expended.” Id. at 160. The District timely appealed.

II. ANALYSIS

We review the district court’s fee award for abuse of

discretion, King v. Palmer, 950 F.2d 771, 785 (D.C. Cir.

1991) (en banc), and will not upset its hourly rate

determination “absent clear misapplication of legal principles,

arbitrary fact finding, or unprincipled disregard for the record

evidence.” Kattan ex rel. Thomas v. Dist. of Columbia, 995

F.2d 274, 278 (D.C. Cir. 1993), as amended (June 30, 1993).

“This limited standard of review is appropriate in view of the

district court’s superior understanding of the litigation and the

desirability of avoiding frequent appellate review of what

essentially are factual matters.” Covington, 57 F.3d at 1110

(quotation marks omitted). At the same time, we “examine de

novo whether the district court applied the correct legal

standard.” Conservation Force v. Salazar, 699 F.3d 538, 542

(D.C. Cir. 2012).

As noted, Eley had the burden “to produce satisfactory

evidence—in addition to [her] attorney’s own affidavits—that

[her] requested rates are in line with those prevailing in the

community for similar services by lawyers of reasonably

12

comparable skill, experience, and reputation.” Covington, 57

F.3d at 1109 (quoting Blum, 465 U.S. at 895 n. 11). In

Covington, this Court held that the “plaintiffs clearly met their

burden and their requested rates were properly accorded a

presumption of reasonableness.” Id. at 1110. We so held

because the plaintiffs submitted not only “data demonstrating

their attorneys’ experience in the legal profession and in

litigating complex federal court cases, as well as information

probative of their attorneys’ skill and reputation,” they also

submitted “a great deal of evidence regarding prevailing

market rates for complex federal litigation,” including “the

Laffey matrix, the U.S. Attorney’s Office matrix, affidavits

attesting to increases in the market rates since the original

Laffey matrix” and, importantly, “memorandum opinions in

district court cases which relied on these matrices.” Id. In

rebuttal, the District failed to cite any relevant cases

supporting its requested rates. Id. at 1111. For this reason,

this Court rejected the District’s argument that “a civil rights

and employment discrimination market actually exists

independent of attorneys who handle other types of complex

federal litigation” and that this market charges rates “lower

than the prevailing rates in the broader legal market.” Id.

Here, however, the reverse is true. Eley’s evidentiary

submission consisted of the LSI Laffey Matrix, Kavanaugh’s

declaration explaining the LSI Laffey Matrix and her lawyer’s

verified statement averring that he charged his paying clients

the rates in the LSI Laffey Matrix. Absent from her

submission, however, is evidence that her “requested rates are

in line with those prevailing in the community for similar

services,” i.e., IDEA litigation. Id. at 1109 (emphasis added);

see also 20 U.S.C. § 1415(i)(3)(C) (IDEA fee awards “shall

be based on rates prevailing in the community . . . for the kind

and quality of services furnished”). Indeed, Eley directed the

district court to only four cases that had employed the LSI

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Laffey Matrix—none of which was an IDEA case. The

District, on the other hand, cited more than forty IDEA cases

in which IDEA plaintiffs had received attorneys’ fees awards

based on prevailing hourly rates at least $180 lower than the

$625 rate applied by the district court here. 5 On this record,

Eley has not met her burden of “justifying the reasonableness

of the rates.” Covington, 57 F.3d at 1107.

We conclude that, in relieving Eley of her burden, the

district court abused its discretion. It relied on Blum and

SOCM but neither case establishes that the rates charged by

lawyers in the largest law firms automatically set the

prevailing market rate for IDEA litigation. Instead, Blum and

SOCM held only that legal aid lawyers (Blum), lawyers in

nonprofit law firms (Blum) and lawyers who charge either

reduced rates or on a pro bono basis (SOCM) should receive

fees based on the prevailing market rate charged by for-profit

lawyers if they are doing the same type of litigation. Implicit

in both cases is the assumption that the legal aid and non-

profit lawyers are engaged in litigation that is “equally

complex” to that of their for-profit counterparts. Blum, 465

U.S. at 893; see also SOCM, 857 F.2d at 1524. But absent is

any record evidence, other than the fee applicant’s

declaration, demonstrating that IDEA litigation is as complex

5

We do not mean to suggest that a fee applicant must always

cite fee orders issued in other cases; rather, evidence of the

prevailing market rate can take many forms. See, e.g., Covington,

57 F.3d at 1113 (Henderson, J., dissenting) (“A statistically reliable,

well-documented, and extensive survey of the rates clients pay for a

certain sub-market of legal services would be powerfully

persuasive.” (emphasis omitted)). Here, the prevailing market

evidence proffered by both sides (save for the competing Laffey

Matrices and Eley’s lawyer’s billing information) consists solely of

awards made by other district courts.

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as the type of litigation that supports the “enhanced” hourly

rates in the LSI Laffey Matrix.

Nor is it an answer to rely on the fact that our precedent

does not “indicate[] that IDEA cases, as a subset of civil

rights litigation, fail to qualify as ‘complex’ federal

litigation.” Eley II, 999 F. Supp. 2d at 159. Indeed, this

reasoning flips the burden of persuasion on its head. By

concluding that “some version of the Laffey matrix is

presumptively reasonable,” settling on the LSI Laffey Matrix

and applying it because no evidence was produced disproving

that IDEA litigation is sufficiently “complex,” id., the district

court erred in not requiring Eley to demonstrate that her

suggested rate was “in line with those prevailing in the

community for similar services.” Covington, 57 F.3d at 1109

(quoting Blum, 465 U.S. at 895 n.11). We do not decide

today whether IDEA litigation is in fact sufficiently

“complex” to use either version of the Laffey Matrix (and if

so, which version of the Laffey Matrix is more appropriate). 6

But the obligation was Eley’s to demonstrate that her

6

See Price v. Dist. of Columbia, No. 14-7133, 2015 WL

3916444, at *4 (D.C. Cir. June 26, 2015) (Brown, J., concurring)

(“[T]he Laffey Matrix rate . . . is . . . an irrelevant benchmark for

administrative proceedings before a D.C. Public Schools . . .

hearing officer.”); see also id. (fee applicants “are entitled to the

Laffey rate only if they can establish that the relevant legal market

in this action, namely representation in IDEA administrative due

process hearings, is subject to the same hourly rates that prevail in

complex federal litigation. Absent such a finding, Laffey Matrix

rates are irrelevant to the prevailing-rate determination.” (citations,

quotation marks and alteration omitted)). See generally id. at *5

(“[W]hen courts are too generous in awarding fees, they create an

incentive for needless conflict and enrich IDEA lawyers at the

expense of public schools, and ultimately the very children the

IDEA seeks to protect.”).

15

suggested rates were appropriate. Because she was not

required to do so, the district court, we conclude, “clear[ly]

misappli[ed] . . . legal principles” and thus abused its

discretion. Kattan, 995 F.2d at 278.

For the foregoing reasons, we vacate the district court’s

fee award and remand for proceedings consistent with this

opinion.

So ordered.

KAVANAUGH, Circuit Judge, concurring: I join the

Court’s opinion. I would simply add that, in my view, the

United States Attorney’s Office Laffey matrix is appropriate

for IDEA cases.