DL v. Dist. of Columbia, Corp.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2019 Decided May 21, 2019

No. 18-7004

DL, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:05-cv-01437)

Carolyn Smith Pravlik argued the cause for appellants.

With her on the briefs were Todd A. Gluckman and Cyrus

Mehri. Margaret A. Kohn entered an appearance.

Michael T. Kirkpatrick and Allison M. Zieve were on the

brief for amici curiae Public Citizen, Inc., et al., in support of

appellants.

Lucy E. Pittman, Assistant Attorney General, Office of the

Attorney General for the District of Columbia, argued the cause

for appellees. With her on the brief were Karl A. Racine,

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

Caroline S. Van Zile, Deputy Solicitor General, entered an

appearance.

2

Charles W. Scarborough, Attorney, U.S. Department of

Justice, argued the cause for amicus curiae United States of

America supporting appellees. With him on the brief was Jessie

K. Liu, U.S. Attorney.

Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge

SENTELLE.

TATEL, Circuit Judge: When plaintiffs prevail in a civil

rights case, the law usually entitles them to recover reasonable

attorney’s fees. Federal district judges, whom Congress has

tasked with tabulating those fees, frequently find themselves

whipsawed between two seemingly discordant instructions:

(1) ascertain the hourly rate for lawyers performing similar

work “with a fair degree of accuracy” using “specific

evidence,” National Association of Concerned Veterans v.

Secretary of Defense, 675 F.2d 1319, 1325 (D.C. Cir. 1982),

but (2) do so without turning fee calculations into “a second

major litigation,” Hensley v. Eckerhart, 461 U.S. 424, 437

(1983). To reconcile those directives, district courts often turn

to a fee matrix—that is, a chart averaging rates for attorneys at

different experience levels. For decades, courts in this circuit

have relied on some version of what is known as the Laffey

matrix. Created in the 1980s, that matrix is based on a relatively

small sample of rates charged by sophisticated federal-court

practitioners in the District of Columbia. Litigants have

updated the matrix for inflation using an assortment of tools.

Recently, however, the United States Attorney’s Office sought

to replace this standby with a new default matrix based on data

3

for all types of lawyers—not just those who litigate complex

federal cases—from the entire metropolitan area—not just the

District of Columbia.

In this case, after plaintiffs prevailed in a long-running

Individuals with Disabilities Education Act class action, the

district court accepted the District of Columbia’s invitation to

rely on the USAO’s new matrix in awarding fees. But as we

explain below, the new matrix departs from the statutory

requirement that reasonable fees be tethered to “rates

prevailing in the community” for the “kind and quality of

services furnished.” 20 U.S.C. § 1415(i)(3)(C). We therefore

vacate the award and remand for the district court to recalculate

the hourly rate based on evidence that focuses on fees for

attorneys practicing complex federal litigation in the District of

Columbia.

I.

We begin by reviewing the elementary principles

governing fee-shifting rate calculations and the genealogy of

fee matrices in this circuit, and then turn to the history of this

particular case.

A.

As Congress enacted a growing number of laws securing

civil rights, it confronted a problem: “enforcement would prove

difficult” without private lawsuits, and would-be plaintiffs

needed skilled lawyers to guide them through the obstacle

course of complex litigation. Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 401 (1968). But those plaintiffs

often lacked financial resources “indispensable” to attracting

“competent counsel” willing and able to take on defendants of

greater means. Save Our Cumberland Mountains, Inc. v.

Hodel, 857 F.2d 1516, 1521 (D.C. Cir. 1988) (en banc)

(internal quotation marks and emphasis omitted). So Congress

4

turned to fee-shifting provisions, simultaneously

“encourag[ing] plaintiffs to bring suit” and allowing those who

prevail to finance the cost of legal assistance by recovering fees

from the defendant. Mary Frances Derfner & Arthur D. Wolf,

1 Court Awarded Attorney Fees ¶ 5.03, § 7(a) (2018 ed.);

accord Piggie Park, 390 U.S. at 402 (“Congress therefore

enacted the provision for counsel fees . . . to encourage

individuals injured . . . to seek judicial relief . . . .”). “[O]ver

100 separate statutes” now provide “for the award of attorney’s

fees.” In re Donovan, 877 F.2d 982, 991 (D.C. Cir. 1989)

(internal quotation marks omitted); see also Congressional

Research Service, Report 94-970, Awards of Attorneys’ Fees

by Federal Courts and Federal Agencies 57–117 (Oct. 22,

2009) (listing them).

The basic formula for calculating an attorney fee award

seems straightforward: multiply “the number of hours

reasonably exp[e]nded in litigation” by “a reasonable hourly

rate or ‘lodestar.’” Cumberland Mountains, 857 F.2d at 1517.

The Supreme Court has offered guidance about how to perform

that calculation, explaining that “reasonable fees” are those

grounded in rates “prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience

and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11

(1984). The statute at issue here, the Individuals with

Disabilities Education Act (IDEA), codifies that interpretation

of “reasonable”: “Fees awarded under [IDEA] shall be based

on rates prevailing in the community in which the action or

proceeding arose for the kind and quality of services

furnished.” 20 U.S.C. § 1415(i)(3)(C).

Implementing this relatively simple definition has proven

vexing. See Reed v. District of Columbia, 843 F.3d 517, 521

(D.C. Cir. 2016) (“[D]etermining . . . the prevailing market

rate[] is ‘inherently difficult.’” (quoting Eley v. District of

5

Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015))). We have

operationalized it with a burden-shifting framework: To begin,

“a fee applicant bears the burden of establishing entitlement to

an award . . . and justifying the reasonableness of the rates.”

Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.

Cir. 1995). At that point, the claimed fee “is presumed to be the

reasonable fee contemplated by” the statute, and the burden

shifts to the defendant to present “equally specific

countervailing evidence” if it seeks a different (presumably

lower) rate. Id. at 1109 (internal quotation marks omitted).

For either party, a matrix showing the average hourly price

tag of comparable lawyers may “provide a useful starting

point” in calculating market rates. Id. But because such

“matrices are somewhat crude,” the matrix’s proponent usually

cannot stop there. Id. Instead, the proponent may point to

additional evidence, which can include “surveys to update the

matrix; 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. No particular type of

evidence can be considered gospel; “evidence of the prevailing

market rate can take many forms.” Eley, 793 F.3d at 104 n.5.

The first and most influential matrix in this circuit debuted

in Laffey v. Northwest Airlines, Inc., a 1983 Title VII and Equal

Pay Act case. 572 F. Supp. 354 (D.D.C. 1983), affirmed in part,

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

Cumberland Mountains, 857 F.2d 1516. In those fledgling

days—before big data, Google, or a prolific cottage industry

dedicated to studying the legal profession—the prevailing

plaintiff’s attorney created a fee schedule by “inquir[ing] into

the billing rates of firms in Washington, D.C., which [were]

engaged in active litigation practice in the federal courts” and

6

collecting “affidavits . . . giving specific rate information,

supporting and substantiating the rates described.” First

Rezneck Affidavit ¶ 9, Laffey v. Northwest Airlines, Inc., No.

1:70-cv-02111-AER (D.D.C. Mar. 17, 1983), Joint Appendix

(“J.A.”) 571–72. A star was born. See Eley, 793 F.3d at 100

(describing the Laffey matrix as “[t]he most commonly used fee

matrix” in this circuit “for lawyers who practice ‘complex

federal litigation’”).

We endorsed the Laffey matrix in Save Our Cumberland

Mountains, Inc. v. Hodel. Sitting en banc, we “commend[ed]

its use for the year to which it applie[d]” and suggested “the

compiling of a similar schedule of prevailing community rates

for other relevant years.” Cumberland Mountains, 857 F.2d at

1525. Joseph Yablonski, a Washington, D.C. litigator,

answered that call by speaking “with attorneys from” seven

major law firms and comparing the rates he “found with the

rates set forth in two broad-ranging surveys of hourly rates

published in the National Law Journal.” Yablonski

Declaration ¶¶ 5–6, Broderick v. Ruder, No. 1:86-cv-01834-

JHP (D.D.C. 1989), J.A. 624–25. Yablonski’s labors updated

Laffey’s rates through 1989. Somewhat confusingly, litigants

routinely refer to both the original 1983 matrix and Yablonski’s

1989 update as the “Laffey matrix.”

In the following decades, hourly rate disputes in this

circuit often revolved around whether a case was sufficiently

complex to warrant Laffey rates, see, e.g., Reed, 843 F.3d at

525–26 (addressing that question in an IDEA case), and, if so,

how best to update the Laffey matrix for inflation, see Eley, 793

F.3d at 101 (describing that debate). The USAO maintained

one version of the matrix, relying on the original 1983 base data

updated through a Bureau of Labor Statistics inflation index

that tracks regional price increases in all goods. Id. Some

plaintiffs’ attorneys argued that this index failed to capture the

7

true rate of inflationary change and began advancing a version

of the 1989 Laffey data updated with a different Bureau of

Labor Statistics index called the Legal Services Index (LSI),

which estimates price increases for the legal market

nationwide. Id. at 101–02. When the two were pitted against

each other, courts frequently found the LSI Laffey matrix more

persuasive. See id. (observing that “critics” of the USAO’s

Laffey matrix had “advocated, to some degree of success, for a

competing Laffey Matrix . . . that uses the Legal Services

Index”); see also Salazar v. District of Columbia, 809 F.3d 58,

65 (D.C. Cir. 2015) (affirming district court’s choice to apply

the LSI Laffey matrix over the USAO’s).

Since 2015, however, the USAO has undertaken a major

effort to replace the Laffey datasets by using a more current rate

survey as the base for a brand new matrix. For those figures,

the USAO turned to the annual Survey of Law Firm

Economics, published by ALM Legal Intelligence (“ALM”) in

conjunction with the National Law Journal. The off-the-rack

version of that survey publishes hourly rate data for thousands

of lawyers engaged in all types of practice, all over the country.

The USAO custom ordered a subset of the 2011 survey’s data

covering the “Washington, D.C. metro area,” defined by the

Census Bureau to include portions of Virginia, Maryland, and

West Virginia. Plaintiffs’ Exhibit 84, DL v. District of

Columbia, 1:05-cv-01437-RCL, ECF No. 566-17 (D.D.C. May

21, 2017), J.A. 1573. This tailored dataset summarizes

“standard hourly billing rates” for 350 attorneys, yielding

average rates hundreds of dollars below those reflected in the

LSI Laffey matrix. Id. The USAO intends to update ALM’s

2011 data for inflation using still another index focusing on

industry-specific price increases nationwide.

B.

This case began almost fifteen years ago when plaintiffs,

8

parents of several children aged three to six, filed suit “alleging

a ‘pervasive and systemic’ breakdown in the” District of

Columbia’s compliance with IDEA resulting from the

District’s failure “to identify large numbers of disabled

children and delivering inadequate and delayed [educational]

services to many others.” DL v. District of Columbia, 860 F.3d

713, 718 (D.C. Cir. 2017). Following a protracted dispute

regarding class certification resulting in two separate trips to

this court, extensive motions practice, and two separate bench

trials, “the district court issued a 130-page opinion finding the

District liable” on most counts and ordered sweeping injunctive

relief. Id. at 719–20. We affirmed “in all respects.” Id. at 717.

As plaintiffs had prevailed on the majority of their claims,

fee litigation commenced. Although the parties contested many

issues in the district court, all but the hourly rate have dropped

out on appeal. Plaintiffs sought attorney fees based on the LSI

version of the Laffey matrix. The District offered the new

USAO matrix as an alternative. Both sides produced a pile of

evidence purporting to prove that their matrix better reflects the

relevant rates, including affidavits from economists and

attorneys; various commercially-available rate surveys; and

information regarding fees requested, awarded, and settled on

in other cases.

The district court began by finding that both matrices were

“presumptively” applicable to “complex federal litigation.” DL

v. District of Columbia, 267 F. Supp. 3d 55, 69 (D.D.C. 2017).

Comparing the two, however, the court was more persuaded by

the USAO’s new matrix, especially its statistically significant

sample size and “more narrowly defined” experience

categories. Id. at 69–70. Thus, despite plaintiffs’ objection that

the data underlying the USAO’s new matrix incorporates rates

for non-litigators outside the District, the court ordered

plaintiffs to recalculate their fees using the USAO’s rates. Id.

9

at 72. Largely as a result of that order (in conjunction with a

few minor adjustments unchallenged on appeal), the requested

$9.76 million fee dropped to a $6.96 million award. Plaintiffs

appeal.

II.

Simply stated, the question before us is whether the district

court abused its discretion in determining that the hourly rates

in the USAO’s matrix are “reasonable.” Recall that IDEA

makes express a requirement that inheres in any statutory

provision for “reasonable attorney’s fees”: such fees must be

calculated using “rates prevailing in the community in which

the action or proceeding arose for the kind and quality of

services furnished.” 20 U.S.C. § 1415(i)(3)(C); accord Blum,

465 U.S. at 895 n.11 (explaining that this is part of what it

means to be “reasonable”). Recall also that once “a fee

applicant” has met the preliminary burden of “justifying the

reasonableness of the rates,” those rates are “presumed to

be . . . reasonable” unless and until the defendant offers

“equally specific countervailing evidence” supporting another

rate. Covington, 57 F.3d at 1107, 1109 (internal quotation

marks omitted). We will reverse a district court’s determination

that certain hourly rates are reasonable when there has been a

“clear misapplication of legal principles, arbitrary fact finding,

or unprincipled disregard for the record evidence.” Kattan ex

rel. Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C.

Cir. 1993), as amended (June 30, 1993); see also Koon v.

United States, 518 U.S. 81, 100 (1996) (“A district court by

definition abuses its discretion when it makes an error of

law.”).

A.

We begin with the District’s argument that plaintiffs failed

to meet their initial burden to support with specific evidence

10

their claim that the LSI Laffey rates satisfy the statute’s

command. Our recent opinion in Salazar v. District of

Columbia, however, all but compels the conclusion that

plaintiffs cleared that bar. The Salazar plaintiffs relied on the

same types of evidence in essentially the same level of detail to

support the same rate matrix (for a slightly earlier year). 809

F.3d at 64–65. That evidence, we concluded, was more than

enough to pass the burden onto the District. Id. at 65 (“With

these numbers and submissions in the record, the district

court’s point that the LSI-adjusted matrix is probably a

conservative estimate of the actual cost of legal services in this

area, does not appear illogical.” (internal quotation marks

omitted)). The District has given us no reason to reach a

different conclusion on such a similar record.

B.

The meatier question, then, is whether the District satisfied

its rebuttal burden. The USAO’s new matrix formed the

cornerstone of the rebuttal case, and the district court treated

that matrix as “presumptively” applicable. DL, 267 F. Supp. 3d

at 69. We are at a loss to understand the basis of that

presumption, given that this court had yet to review the new

matrix. The proper inquiry, under the applicable legal

principles, was whether the District supported its matrix with

“equally specific countervailing evidence.” Covington, 57 F.3d

at 1109 (internal quotation marks omitted).

The District contends that the USAO’s more recent raw

data and statistically significant sample size make its matrix

superior to plaintiffs’ favored LSI Laffey matrix. Crucially,

however, those traits matter only if the data surveys the

relevant population. As plaintiffs’ expert, Dr. Michael

Kavanaugh, put it, “comparable prices are found by observing

comparable goods.” Second Kavanaugh Declaration ¶ 8, DL v.

District of Columbia, 1:05-cv-01437-RCL, ECF No. 566-11

11

(Apr. 26, 2017), J.A. 1380. For example, for someone house

hunting in Memphis, a survey of real estate prices in Seattle—

even one with a perfect response rate updated daily—would be

of no use. The same is true here. The USAO’s matrix is helpful

only if it canvasses the relevant type of lawyer, which it does

not.

To begin with, the USAO’s matrix incorporates rates for

the wrong types of practitioner. The parties and the district

court agree that this case qualifies as “complex federal

litigation.” DL, 267 F. Supp. 3d at 69. Yet rather than confine

its data to rates charged by attorneys practicing that genre of

litigation—or even just litigators in general—the survey that

the USAO drew from incorporates rates from all types of

lawyers. Respondents include real estate lawyers, family

lawyers, and insurance lawyers—lawyers manifestly not

offering “the kind and quality of services furnished” by these

plaintiffs’ attorneys, as the statute requires of comparators. 20

U.S.C. § 1415(i)(3)(C); accord Eley, 793 F.3d at 105 (fee

analysis should focus on “lawyers . . . doing the same type of

litigation” (emphasis omitted)). It is obvious that the rates

charged for, say, simple wills are lower than those for complex

federal litigation. Worse still, nothing in the record reveals

what percentage of respondents in the USAO’s custom cross-

section of the ALM data were litigators. For all we know, the

number could be anywhere from zero to all 350.

Compounding this first error, the USAO’s custom-ordered

dataset surveys lawyers far beyond the “community in which

th[is] action . . . arose.” 20 U.S.C. § 1415(i)(C)(3). Plaintiffs

brought this case on behalf of District of Columbia residents

regarding District of Columbia schools against the District of

Columbia. Yet the USAO matrix draws from lawyers who

practice in the entire “metro area” as defined by the United

States Census Bureau. The phrase “metro area” suggests

12

proximity, but—according to the Census Bureau’s definition—

that area stretches well beyond the District to cover thousands

of square miles over three states, from rural Madison County,

Virginia, to the eastern shore of Maryland, back to the foothills

of Jefferson County, West Virginia. Needless to say, this case

has no connection to most of those areas. Our court has held

that ordinarily “the relevant community is the one in which the

district court sits.” Donnell v. United States, 682 F.2d 240, 251

(D.C. Cir. 1982). Accordingly, our decisions refer to the

relevant community as the District of Columbia. See, e.g.,

Salazar, 809 F.3d at 64 (discussing “prices for legal services in

Washington, D.C.”); Covington, 57 F.3d at 1104 (discussing

evidence of rates “in the District of Columbia”). That general

rule fits comfortably with the facts of this case. Yet here, more

than half the data in the USAO’s customized dataset comes

from outside the District of Columbia, see Appellant’s Br. 20,

and District counsel acknowledges that it includes data from

throughout the three neighboring states, see Oral Arg. Rec.

28:04–28:22. Again, it is obvious, as District counsel

recognizes, that fees are lower in rural areas than in the District.

See Oral Arg. Rec. 31:04–31:30. Indeed, the District’s own

evidence shows that rates for legal services in the District of

Columbia are among the highest anywhere. National Law

Journal & ALM Legal Intelligence, The Survey of Law Firm

Economics, 139–41 (2011 ed.), J.A. 1485–87.

Confronted with these two flaws, the district court said

nothing about them, resting exclusively on its statement that

the USAO’s matrix was “presumptively applicable.” DL, 267

F. Supp. 3d at 69. In doing so, the court abused its discretion

twice over. First, by failing to determine whether the USAO’s

matrix satisfies Congress’s statutory baseline, the court

committed a “clear misapplication of legal principles.” Kattan,

995 F.2d at 278; see also Koon, 518 U.S. at 100. And second,

13

it “disregard[ed] . . . record evidence” that its chosen matrix

failed to achieve that baseline. Kattan, 995 F.2d at 278.

Calling in reinforcements, the District points to a growing

consensus among the district judges in this circuit that the

USAO matrix is superior to Laffey. See, e.g., Lewis v. District

of Columbia, No. 1:15-cv-521-JEB, 2018 WL 6308722, at *8

(D.D.C. Dec. 3, 2018) (collecting cases). Many of those cases

repeat the district court’s fundamental error here: none finds,

based on record evidence, that the new matrix is based on rates

for complex federal litigators in the District. See id. at *9 (no

response to the plaintiff’s objection that the new USAO matrix

“reflects all types of legal services”); Gatore v. United States

Department of Homeland Security, 286 F. Supp. 3d 25, 42–43

(D.D.C. 2017) (no response to observation that the USAO’s

survey may be “over-inclusive”); Electronic Privacy

Information Center v. United States Drug Enforcement

Administration, 266 F. Supp. 3d 162, 170–71 (D.D.C. 2017)

(no discussion of survey composition); Clemente v. Federal

Bureau of Investigation, No. 1:08-cv-1252-BJR, 2017 WL

3669617, at *5 (D.D.C. Mar. 24, 2017) (merely describing the

new USAO matrix as “measur[ing] rates in the legal services

industry”). Others apparently lacked the benefit of any briefing

on the new matrix’s flaws. See, e.g., Wadelton v. Department

of State, No. 1:13-cv-412-TSC, 2018 WL 4705793, at *12

(D.D.C. Sept. 30, 2018) (adopting new USAO matrix sua

sponte “[a]lthough the parties ha[d] not briefed” it); National

Security Counselors v. Central Intelligence Agency, No. 1:11-

cv-444-BAH, 2017 WL 5633091, at *17 (D.D.C. Nov. 21,

2017) (employing the new USAO matrix after plaintiffs offered

“no analysis of the USAO’s newest methodology”). So, even

sympathizing with the district court’s appetite for more recent

data, we are unpersuaded by its decision to embrace newer but

irrelevant figures.

14

Despite the evidentiary defects in the record, the District

offers an alternative basis for affirming: its supplemental proof

demonstrates that the USAO’s matrix accurately reflects

complex litigation rates in the District of Columbia. But the

district court made no findings about the evidence the District

uses to back up that claim, and some of that data appears to be

of dubious value. For example, the District’s primary redoubt

comprises two sets of nationwide data from the 2014 ALM

survey. But it is not at all obvious that these nationwide datasets

are useful comparators for rates in the District. See National

Law Journal & ALM Legal Intelligence, The Survey of Law

Firm Economics 139–41 (2011 ed.), J.A. 1485–87 (showing

that rates in the District substantially exceed those in most other

jurisdictions). Nonetheless, mindful of the district court’s

primary factfinding role, we leave it for that court to assess on

remand the impact, if any, of the District’s remaining market

evidence and to take further evidence if necessary to arrive at a

“reasonable rate.”

C.

The District argues that “even if” we reject the USAO’s

new matrix—as we now have—“that does not mean that

[plaintiffs] were entitled to rates under the LSI [Laffey]

Matrix.” Appellee’s Br. 25. But it offers one and only one

argument for rates in between the two: that this court has held

that attorneys in IDEA cases should not be compensated at

Laffey rates. Id. That argument mischaracterizes our precedent.

True, we have held that IDEA cases sometimes fall within a

submarket characterized by below-Laffey rates. Reed, 843 F.3d

at 525. But such cases involved individual IDEA plaintiffs

litigating non-complex cases primarily before an

administrative body. See id. (noting individual “IDEA litigants

may not have discovery and pre-trial exchanges of the sort

found in other federal litigation”); Eley, 793 F.3d at 105 n.6

(discussing “representation in IDEA administrative due

15

process hearings” (internal quotation marks omitted)); accord

Second Kohn Affidavit ¶¶ 9–17, No. 1:05-cv-01437-RCL,

ECF No. 566-5 (D.D.C. Apr. 27, 2017), J.A. 1359–61

(describing typical IDEA case and noting that, “in an even

unusually complex individual IDEA case appealed to the

district court,” the “full record . . . would typically fit into two

banker’s boxes”). Indeed, we have always left open “the

possibility that . . . fee applicants may be able to demonstrate

that IDEA cases are ‘complex federal litigation’ to which the

Laffey Matrix presumptively applies.” Reed, 843 F.3d at 525.

And here the district court found that this case qualifies as

“complex federal litigation,” DL, 267 F. Supp. 3d at 69, a

finding the District has not challenged, see Appellee’s Br. 22

n.8. It therefore may not claim that fees from individualized

IDEA actions are appropriate comparators.

To be sure, the district court identified other concerns

regarding the LSI Laffey matrix, including (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. DL, 267 F. Supp. 3d at 69–70.

These observations suggest that as time passes, the Laffey

matrix may well—like shoulder pads, eight-tracks, and other

’80s fads before it—be losing its shine. In this particular case,

however, the District raised no argument that these issues

justify rates somewhere between the two matrices. See

Appellee’s Br. 25. Therefore, it has forfeited any such

contention. Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir.

2019) (“A party forfeits an argument by failing to raise it in his

opening brief.”).

D.

One last issue remains: the rates for plaintiffs’ only lawyer

who regularly bills fee-paying clients, Cyrus Mehri. We see no

reason why the rates that apply to the rest of plaintiffs’ lawyers

16

would yield inadequate compensation for Mehri’s services.

Plaintiffs contend that Mehri is instead entitled to his usual

billing rate, but his sparse affidavit tells little about whether his

relatively minimal contributions to the case differ sufficiently

from his colleagues’ to warrant a different methodology. Mehri

Affidavit, No. 1:05-cv-01437-RCL, ECF No. 537-17 (Sept. 26,

2016), J.A. 428–29 (asserting he “did work related to class

certification” and tried to “broker a resolution to this case”). As

Eley instructs, the focus is properly on the market rate “charged

by for-profit lawyers” for “the same type of litigation.” 793

F.3d at 105. And although stating in his affidavit that he

charges the same rate no matter what type of work he performs,

Mehri nowhere represents that a client on the market would

hire him at that rate for the types of services he performed in

this case. Accordingly, the district court did not abuse its

discretion by compensating Mehri using the same method as

his co-counsel.

III.

Not so long ago, the prevailing belief was that parties

would often be able to agree on reasonable attorney’s fees. See

Hensley, 461 U.S. at 437 (“Ideally, of course, litigants will

settle the amount of a fee.”). We regret that this prophecy has

gone unfulfilled and fervently hope that practitioners in this

circuit—on both the plaintiff and defense sides of the bar—will

work together and think creatively about how to produce a

reliable assessment of fees charged for complex federal

litigation in the District. In the meantime, however, we must

discharge our duty to ensure that the adversarial alternative

produces results that respect Congress’s mandates. Because the

fee award in this case falls short of that goal, we vacate it and

remand for further proceedings consistent with this opinion.

So ordered.

SENTELLE, Senior Circuit Judge, dissenting: Ambrose

Bierce defined a lawyer as “[o]ne skilled in circumvention of the

law.” Ambrose Bierce, The Unabridged Devil’s Dictionary 147

(Univ. of Georgia Press 2000). Though I do not suggest that this

is an accurate description, I nonetheless would observe that the

jurisprudence of IDEA litigation attorney-fee awards well

establishes that lawyers and jurists are professionals skilled in

complicating the law. The jurisprudential odyssey on this sea

began with a rather straightforward mandate from Congress in

20 U.S.C. § 1415(i)(3), a subsection headed “Jurisdiction of

district courts; attorney fees.” (Emphasis added.)

More specifically, Congress provided that, “[i]n any action

or proceeding brought [under the IDEA provision providing

judicial relief], the court, in its discretion, may award reasonable

attorneys’ fees as part of the costs.” 20 U.S.C.

§ 1415(i)(3)(B)(i). While the following subsections provide

some limitations and directions for the computation of the

award, the basic task created by Congress and placed within the

jurisdiction of the district court is a factual determination of the

reasonableness of attorneys’ fees to be awarded as part of the

costs in IDEA actions. The congressional language would seem

to rather straightforwardly call for findings of fact, concerning

the reasonableness of attorneys’ fees to be awarded. The district

court in the present controversy made such findings which we

are now called upon to review.

“[T]he standard governing appellate review of a district

court’s finding of [facts] is that set forth in Federal Rule of Civil

Procedure 52(a).” Anderson v. Bessemer City, 470 U.S. 564,

573 (1985). Rule 52(a) provides that “[f]indings of fact,

whether based on oral or other evidence, must not be set aside

unless clearly erroneous . . . .” Not only would it seem apparent

that this is the standard of review we should be applying to the

issues before us, it seems especially appropriate where the

question is expressly described as within the “jurisdiction of

2

district courts” in the enactment creating the right to such a

finding. 20 U.S.C. § 1415(i)(3).

Indeed, we have expressly held in previous IDEA class

litigation that “[w]e review the district court’s fee award for

abuse of discretion, and will not upset its hourly rate

determination absent clear misapplication of legal principles,

arbitrary factfinding, or unprincipled disregard for the record

evidence.” Eley v. District of Columbia, 793 F.3d 97, 103 (D.C.

Cir. 2015) (emphasis added) (internal quotation marks and

citations deleted). In spite of this standard, in the present case,

the majority reviews the district court’s determination of the

factual questions before us, not for compliance with Rule 52(a),

nor for abuse of discretion, but as if it were a question of law.

The majority asks not whether the district court committed

a clear misapplication of legal principles, or arbitrary

factfinding, or unprincipled disregard for record evidence, but

rather whether the district court’s findings of fact fit within a

detailed grid, the Laffey Matrix, which might be construed as a

proffer by the prevailing party for findings of fact, but more

closely resembles a detailed regulation adopted by some

government agency after an appropriate period of notice and

comment.

The district court found another matrix to be more factually

appropriate. The making of that factual determination, under the

law in general and under the governing statute in particular, is

the district court’s province. I grant that we as an appellate

reviewing court have participated in the establishment of this

legislation-like matrix. I further realize that we have the

authority to establish precedent binding upon district courts and

upon panels of this court such as this one. LaShawn A. v. Barry,

87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). Nonetheless, I

3

have always understood our authority to make binding

precedents to govern matters of law, not findings of fact. The

present controversy concerns a matter of fact. This, under the

binding precedent of both this circuit and the Supreme Court and

the Rules of Civil Procedure is within the discretion of the

district court, subject only to the limited review described above.

While not necessary to my dissent, I further note that

appellants proffered nothing to convince me that the LSI Matrix

preferred by them is inherently more appropriate for the findings

required by the district court in this case than the USAO Matrix

relied upon in the district court’s findings. Appellants’

argument rests on the proposition that the award should have

been based on fees determined by survey of a specific

subcategory of attorneys out of the several set forth in their

preferred matrix: specifically, practitioners in complex federal

litigation in Washington, D.C. The matrix employed by the

district court instead considered the rates of a broader sampling

of attorneys from a broader geographic area, including not only

the District of Columbia, but also adjacent portions of three

states. It is not apparent how this was an abuse of discretion of

the sort that would make the court’s determination reversible

under the standard set forth in the rules and blessed in Anderson

v. Bessemer City, and a multitude of other cases.

Appellants seem to argue that the district court’s

determination was inconsistent with Congress’s instructions in

section 1415(i)(3)(C). That section mandates that 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.” It does not mandate that the community

should be limited to a “community” defined as only the largest

municipality in a region, or to the highest priced professional

practicing in that limited community.

4

As the purpose of Congress in setting forth the general

limitations of subsection (C) appears to encourage the

determination of a market for assessing the reasonableness of

fees, it would seem that an analysis of the fitness of either

matrix to that determination could, without violating the

standard under which we review factfinding, include reflecting

on the reasonableness of persons obtaining legal representation

in such a hypothetical market. It might be that those persons

would choose the most expensive professionals for the most

expensive part of the market. While such conduct might not be

unreasonable, neither is it inherently unreasonable that they

might choose a less imposing or less expensive attorney who is

nonetheless trusted and competent to do the work in the case. It

may shock counsel before us to learn, but it is not necessary in

every case to have the most specialized or the most expensive

counsel in order to receive competent legal services. In any

event, it is not arbitrary fact finding for the judge to conduct an

analysis of the evidence that is consistent with such supposition.

In short, I find no abuse of discretion or other reversible error.

My colleagues disagree. I respectfully dissent.