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November 21, 1991


Petition for Review of a Decision of the District of Columbia Rental Housing Commission.

Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge:

This case involves the determination of the amount of attorney's fees to be awarded to the prevailing tenants' association in a dispute under the Rental Housing Act, D.C. Code § 45-2501 et seq. (1990). The Rental Housing Commission cut back the $20,968.75 sought by the tenants' counsel to $5,125.00, by reducing both the claimed hourly rate and the number of claimed compensable hours. We affirm.

I -- The Facts

This litigation originated in a landlord-initiated petition for an increase in rents due to capital improvements, and is before us for the second time. The underlying facts and procedural history are fully set forth in the first appeal. Hampton Courts v. Rental Housing Comm'n, 573 A.2d 10 (D.C. 1990) (" Hampton I") . In brief, the landlord, William C. Smith & Co., Inc., sought an increase in the rent ceiling for the 117 rental units at Hampton Courts. The landlord failed to appear at the hearing before the Rent Administrator, but the Administrator nonetheless granted an increase of $9 per unit per month. In the course of the proceedings, tenants, acting through the Hampton Courts Tenants Association (the "Association"), retained counsel and took an appeal of the adverse decision to the Rental Housing Commission (the "RHC"). The RHC reversed, ruling that the landlord had the burden of production and persuasion which it failed to meet by nonappearance. The RHC also ruled that it would award the Association attorney's fees.

The landlord did not further contest the substantive ruling on the requested rent increase but did challenge the award of fees through a motion for reconsideration. The RHC granted the motion, *fn1 ruling that in landlord-initiated actions, tenants could recover fees only if they established that the landlord "had maintained an unreasonable position." In Hampton I, the prior appeal to this court, we reversed the RHC on the ground that the Ungar presumption *fn2 of an award of attorney's fees to the prevailing party in rental housing litigation applies to prevailing tenants in landlord-initiated as well as in tenant-initiated proceedings. We therefore remanded for further proceedings on the question of attorney's fees.

On remand, the RHC directed the counsel representing the Association before the RHC *fn3 to "submit documentation in support of his fee application" and the landlord to "submit any opposition." *fn4 Several weeks later, the Association's counsel filed such documentation in support of the attorney's fee application. *fn5 A flurry of motions followed, including an opposition by the landlord wherein it contested the reasonableness of the fee amount, a response and motion to strike the opposition by the Association, and a motion to supplement the documentation of attorney's fees. *fn6 Taking all of these motions and responses into account, the RHC concluded that the hours billed by the Association's counsel were markedly excessive and that there was insufficient information with respect to hourly rates to support the rate requested. In a lengthy and detailed order issued July 20, 1990, the RHC decreased the total number of compensable hours from 167.75 hours to 51.25 hours and the permissible hourly fee from $125 to $100, thereby reducing the over $20,000.00 sought by the Association's counsel to $5,125.00.

II -- The Fee Reduction

The foundational Supreme Court case, Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40 , 103 S. Ct. 1933 (1983), counseled in an oft-cited admonition that " request for attorney's fees should not result in a second major litigation." Therefore, the determination of the reasonableness of attorney's fee amounts is clearly "a matter within the trial Judge's discretion." District of Columbia v. Jerry M., 580 A.2d 1270, 1280 (D.C. 1990). The same discretionary standard applies to attorney's fees determinations by an administrative agency. Alexander v. District of Columbia Rental Housing Comm'n, 542 A.2d 359, 361 (D.C. 1988). "This is appropriate in view of the [trial court's or agency's] superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley, supra, 461 U.S. at 437.

The general procedures for determining the presumptively reasonable "lodestar" amount *fn7 and then, in exceptional cases, making "upward or downward adjustments thereto," Henderson v. District of Columbia, 493 A.2d 982, 999 (D.C. 1985), have been expounded a number of times, even as to RHC cases in particular, and need not be set forth again in detail. See, e.g., Jerry M., supra, 580 A.2d at 1281 & n.10; Alexander, supra, 542 A.2d at 361-62; Ungar, supra note 2,535 A.2d at 892 (discussing application of factors set forth in Frazier v. Center Motors, Inc., 418 A.2d 1018 (D.C. 1980), as "rearticulated and refined" in District of Columbia v. Hunt, 525 A.2d 1015 (D.C. 1987) (per curiam)). *fn8 "The fee applicant bears the burden of . . . documenting the appropriate hours expended and hourly rates." Hensley, supra 461 U.S. At 437; Jerry M., supra, 580 A.2d at 1281 ("initial burden of showing that fees claimed are reasonable falls upon the fee claimant"). *fn9 Moreover, as with other agency determinations, the agency decision with respect to the award of attorney's fees is presumed to be correct, and thus the Association bears the burden of demonstrating that the RHC abused its discretion in reducing either compensable hours or hourly rates. See Cohen v. District of Columbia Rental Housing Comm'n, 496 A.2d 603, 605 (D.C. 1985).

Here, the RHC operated within the proper procedural framework and considered the relevant information before it in reaching its 16 page decision. The question we face is whether the RHC abused its discretion in finding that the Association failed to carry its burden of persuasion in justifying its request, *fn10 and in setting its ultimate award of attorney's fees in an amount markedly less than that sought by the Association.

A -- Number of Hours

The RHC may exercise its discretion to decrease the number of compensable hours in the lodestar calculation "where the documentation of hours is inadequate" and to "exclude from initial fee calculation hours that were not 'reasonably expended'" or "that are excessive, redundant, or otherwise unnecessary. . . ." Hensley, supra, 461 U.S. at 433-34. Moreover, the RHC itself, in an opinion intended to designate precisely what it would require in making future attorney fee determinations, stated that "a reasonable number of hours is not necessarily the raw, gross figure" that the firm's documentation depicts, but rather the number of hours an attorney skilled in the specialized field of rental housing would claim in the exercise of "billing judgment." Reid v. Sinclair, supra note 8, at 16-17. According to these principles, the RHC did not err here in adjusting the number of compensable hours downward to 51.25 since, within its discretion, it made multiple findings both that counsel provided inadequate ...

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