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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 substantiation of his hours and that the hours charged were "far in excess of what reasonably skilled counsel expend for similar work in rental housing litigation" according to its extensive "past experience with attorney services in the rental housing area." *fn11

1 -- Documentation Requirement

As the United States Court of Appeals for the District of Columbia Circuit has noted, "it is insufficient to provide the District Court with very broad summaries of work done and hours logged." Concerned Vets., supra note 8, 219 U.S. App. D.C. at 102, 675 F.2d at 1327. Rather, "the application must be sufficiently detailed to permit the District Court [or agency] to make an independent determination whether or not the hours claimed are justified," and "contemporaneous, complete and standardized time records" may be called for to support a disputed fee request. Id.; accord Hensley, supra, 461 U.S. at 438 n.13 (approving the reduction of one attorney's hours "by 30 percent to account for his inexperience and failure to keep contemporaneous time records"); Grendel's Den v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984). Here the RHC determined that the documentation offered by the Association was in several respects "simply not adequate to explain the work performed when counsel intends to persuade us that we should impose the cost of his fees on another party. Clearly this serious deficiency throws doubt upon the validity of the entire presentation." The RHC noted that the Association "submitted no contemporaneous timekeeping records to show that these hours were in fact expended," and expressed concern that the record of counsel's hours not be "an after-the-fact estimate of what may have been done." As an example, in regard to a single entry submitted to cover 40 hours over four days of work, *fn12 the RHC found the dearth of detail disturbing.

While it is true, as the Association argues, that the itemization of hours claimed generally specified the dates the work was performed, the general nature of the services, and the total time spent, more could be required of the Association in this contested award request. Even if the itemization was, for certain purposes, "of the type traditionally used in the legal profession," as the Association asserts, it did not provide as much information as the trial court and this court ordinarily expect for CJA litigation on the itemization form entitled "Explanation of Claim for Services and Expenses." Such forms require in addition daily dating of services, as opposed to aggregate entries, as well as logging of the times of day work is begun and ended and categorization by type of work performed. The RHC could require as much here. *fn13

2 -- Hours Reasonably Expended

The RHC rested its reduction of allowable hours on the ground that much of the itemized work was redundant or irrelevant and therefore inappropriately charged in the sense that counsel could not have responsibly charged a client as much. Since the question whether hours are unreasonably charged obviously depends on the individual facts of the case, the task of attending to each claimed category of hours is uniquely the agency's and the results of such review singularly within the ken and the discretion of the agency. Moreover, the agency "closely monitors the litigation on a day-to-day basis . . ., intimately familiar with the . . . pleadings, memoranda, and documents filed, and . . . observes the proficiency of counsel in court. Our inspection of the cold record cannot substitute for first-hand scrutiny. Under these circumstances, we are most hesitant to upset the product of judgment." Copeland, supra note 8, 205 U.S. App. D.C. at 411, 641 F.2d at 901.

The RHC determined, as to the claimed hours for work on the notice of appeal to the RHC and the memorandum in support of a summary reversal of the Rent Administrator's decision, that the number of hours charged was "so inordinately large" that counsel either was inexperienced in rental housing cases, *fn14 had made an "after-the-fact guess" as to hours expended, or else "was inflating his hours beyond all reason." It concluded also that the Association's counsel made arguments and filed motions with little relevance to the case and which were redundant and excessive, and exercised an "absence of billing judgment." See Hensley, supra, 461 U.S. at 437. It thus reduced this category of hours by more than half, to 40 hours. *fn15 It reduced additional hours sought for the motions themselves by over two-thirds, to 8 hours. The RHC also determined that counsel included a category of hours for which compensation was unallowable because not "attorney work." *fn16

The RHC was uniquely situated to gauge the reasonableness of the work claimed. Our function can only be to Judge whether these determinations came within the wide bounds permitted to the agency. In making its determinations, the RHC was not unmindful of the benefits to the tenants of the work done by counsel. Nonetheless, it believed the fee sought was far in excess of what was justified, and provided a reasoned and extensive explanation for its Conclusion.

B -- Reasonable Hourly Rate

In fixing the "reasonable hourly rate for the services rendered, as measured by prevailing market rates in the relevant community for attorneys of similar experience and skill," Jerry M., supra, 580 A.2d at 1281; Copeland, supra note 8, 205 U.S. App. D.C. at 106, 641 F.2d at 892, the RHC reduced the claimed rate for counsel's work from $125 to $100. It reasoned that the Association provided insufficient information to document its hourly rate request. *fn17 Thus, the RHC resorted to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1988), which we have noted is closely related to our RHC fee-authorization statute, D.C. Code § 45-2592, see Hampton I, supra, 573 A.2d at 12, and which provides for a rate of $75 an hour, subject to a cost of living adjustment to be determined by the court. The RHC made such an adjustment and determined the proper rate here to be $100 per hour. *fn18

The RHC had before it only the Association counsel's affidavit, "which simply states that he performed the legal services," plus a resume containing "no references to clients or fees, two letters of recommendation from former associates and one letter from a former client . . . which states that the client paid a fee of $125.00 per hour." We perceive no abuse of the broad discretion afforded to the agency to require documentation in addition to the single letter from a prior client and the affidavits from colleagues. See Concerned Vets., supra note 8, 219 App. D.C. 94 at 100-101, 675 F.2d at 1325-26.

Accordingly, the award by the RHC of $5,125 for services rendered by the Association's counsel at the agency level in this litigation *fn19 must be


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