Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



December 13, 1993

SHERIEL SEXCIUS, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: LAMBERTH


 This case comes before this court on plaintiffs' motion for an award of attorney's fees and costs under 42 U.S.C. § 1988, the Civil Rights Attorney's Fee Award Act of 1976. Having considered the extensive memoranda and evidence of both parties, this court shall grant plaintiffs' motion, awarding plaintiffs $ 247,809.87 in attorney's fees and costs. A separate order shall issue this date.


 The case underlying this attorney's fee litigation is an action alleging the violation of First and Fourteenth Amendment rights of two District of Columbia schoolteachers, Sheriel Sexcius and William Edmead, who had spoken out regarding certain educational practices. Attorneys Francine K. Weiss and Edith Barnett represented the teachers, working together in this case as they had long done on other cases. *fn1" Ms. Weiss was lead counsel and the point of contact between plaintiffs and counsel and witnesses. (She and Ms. Barnett were aided by three law students, who helped organize documents and research.)

 Ms. Weiss and Ms. Barnett won for their clients a permanent injunction forbidding Woodson High School Principal Lucile Christian, Director of the Public School Certification and Accreditation Branch Mary B. Hendrick, the superintendent of schools, the District of Columbia, and the mayor from infringing on plaintiffs' constitutional rights and from retaliating against plaintiffs in the workplace again for speaking out on their educational views. In an order accompanying the resolution of the merits of plaintiffs' claim, this court determined that plaintiffs are entitled to reasonable attorney's fees and costs. See Sexcius v. District of Columbia, No. 88-2104, slip op. at 52 (D.D.C. Oct. 15, 1992). The issue now before this court is what constitutes reasonable attorney's fees and costs in this case.


 "The initial estimate of a reasonable attorney's fee" -- the so-called lodestar fee -- "is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) (citations omitted). *fn2" To determine the lodestar, this court will determine, in turn, the reasonable hourly rate and the reasonable number of hours billed by counsel.

 A. Counsel

 1. Reasonable Hourly Rate

 Plaintiffs claim compensation at a billing rate of $ 260 per hour, which is (they claim) the prevailing market rate for lawyers with their legal experience. Defendants argue that the appropriate rate is no more than $ 100 per hour, the rate that plaintiffs paid their counsel throughout this litigation under a retainer agreement. Because plaintiffs' counsel charged plaintiffs this low $ 100 rate out of public interest motives, plaintiffs are entitled to collect the prevailing market rate, not merely the rate they actually charged plaintiffs.

 a. Counsel Charged Reduced Rates in the Public Interest

 Plaintiffs' counsel have a tradition of charging their less wealthy clients below-market rates when their cases are important to the public interest. In the present case, for example, because plaintiffs were public school teachers -- in the words of their counsel, "not wealthy people" -- their counsel agreed to charge them only $ 100 per hour, a "rate[] they could afford." (Defendants have conceded that this $ 100 rate is below the market rate.) *fn3" Counsel charged them this reduced rate in order to take plaintiffs' case, which posed important constitutional questions and affected the educational interests of the city's public school students. (Barnett Decl. (Reply) at P 6; Weiss Decl. (Reply) at P 7.)

 This is not an atypical case for plaintiffs' counsel. They have a tradition of representing the constitutional and statutory rights of individual employees and employee groups, including labor unions. Because counsel earn their living from their practice, they cannot afford to represent their clients for free. (Weiss Decl. (Reply) at P 8; Barnett Decl. (Reply) at P 5.) Instead, they represent their worthy but not wealthy clients at below-market rates. Lawyers who make this kind of noble compromise may recover prevailing market rates for their work. See Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1520 (D.C. Cir. 1988) (en banc)(SOCM). Because plaintiffs have shown that their counsel charge below-market rates out of public-spirited motives, plaintiffs are entitled to recover the prevailing market rate for their counsels' services.

 b. Prevailing Market Rate

 Although plaintiffs are clearly entitled to a fee award calculated at the rates prevailing in the relevant legal market, *fn4" the parties disagree as to which market of legal services is the "relevant market" in this case.

 Plaintiffs argue that the matrices and other evidence they have produced, charting the rates charged by lawyers across the District of Columbia for complicated federal litigation, establish the prevailing market rate. This matrix-based evidence would award counsel $ 260 per hour.

 Defendants challenge plaintiffs' matrix-based evidence as too broad to be useful. Plaintiffs' matrices and other evidence survey rates that District of Columbia lawyers earn from commercial clients for performing "general legal services," rates far higher than those the market awards for plaintiffs' civil rights work. (Defs.' Opp'n, at 11.) Ms. Weiss might earn $ 260 per hour from a commercial client for her general legal services; for her civil rights work for plaintiffs, by contrast, the market would provide her no more than $ 125-$ 150 per hour, *fn5" defendants argue.

 Defendants' position may be plausible. As discussed in Covington v. District of Columbia, 839 F. Supp. 894, 1993 U.S. Dist. LEXIS 17884, No. 87-2658 (D.D.C. Dec. 13, 1993), no District of Columbia federal court appears to have spoken squarely on the issue of sub-markets, but the legislative history of § 1988 *fn6" and subsequent Supreme Court *fn7" and District of Columbia circuit *fn8" caselaw construing attorney's fee statutes make clear that in resolving any particular attorney's fee question under § 1988 (including this sub-market question), courts must aim to award attorney's fees that mirror what counsel would earn in the market. If the market would provide different sub-markets *fn9" of lawyers different hourly rates, courts properly aiming to mirror the market would award fees accordingly, granting lawyers in each sub-market the fees that their particular services command in the marketplace.

 Unfortunately, the resolution of the parties' debate in this case is no more satisfying than the resolution of the District of Columbia's identical debate with the plaintiffs in the Covington case. Defendants have produced exactly the same evidence in both cases. In that case, as in this one, defendants' evidence is not sufficient to persuade this court that the prevailing rate in the sub-market of plaintiffs' lawyers handling civil rights, employment, and discrimination cases is -- as defendants claim -- lower than the rate prevailing in the broader market of complicated federal litigation. *fn10" Because defendants have not carried their evidentiary burden, this court cannot rule for defendants. Because this court cannot rule for defendants, for today plaintiffs' theory that the relevant market should be very broadly defined still stands. *fn11" Because plaintiffs have met their evidentiary burden under that theory -- and because defendants' factual rebuttal of plaintiffs' evidence has been ineffectual -- plaintiffs shall be awarded the prevailing market rates for their services in the broadly defined market of complicated federal litigation. This court now turns to the determination of those rates.

 In performing the difficult task of calculating the prevailing market rates for attorney's fees, this court by necessity relies upon the parties' evidence of the prevailing market rates. See Nat. Ass'n of Concerned Vets. v. Sec. of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1323-24 (D.C. Cir. 1982) (per curiam) (noting that attorney's fee cases impose a "difficult burden" on a district court and "correspondingly heavy" evidentiary burdens on fee applicants). Defendants' blunderbuss criticisms of plaintiffs' matrices -- as representing only a small percentage of the District of Columbia's Bar, as omitting the "lower end of the market" of legal services, and as failing to reflect the recent slowdown in the growth of rates -- may have merit, but standing alone these criticisms are insufficient to undermine plaintiffs' evidence. See Concerned Veterans, 675 F.2d at 1337-38 (Tamm, J., concurring). Because defendants have produced little helpful countervailing evidence and because plaintiffs' evidence -- though not entirely satisfying -- is more persuasive, this court is forced to rely solely upon plaintiffs' evidence.

 Plaintiffs' chief evidence is a pair of court-approved matrices. The first of these matrices -- the Laffey matrix -- is an updated fee matrix that has been relied upon, at least in part, by six District of Columbia district judges *fn12" and that has received a degree of approval from the Court of Appeals for the District of Columbia Circuit. *fn13" The second matrix -- developed by the U.S. Attorney's Office for the District of Columbia for use in negotiating settlements *fn14" -- extrapolates from the 1981-82 rates set by the Laffey court in 1982 *fn15" by adding the Consumer Price Index increase for the Washington, D.C., metropolitan area to the prior year's rate, and rounding upwards if the sum is within $ 3 of the next $ 5 multiple. (See Covington, Appendix B, Methodology Note.) The rate for 1991-92, the last fee year charted by the U.S. Attorney's Office's matrix, is $ 250 per hour. (See Covington, Appendix B.) Plaintiffs follow the U.S. Attorney's Office's extrapolation method to calculate a 1992-93 hourly rate of $ 260. *fn16" Relying upon plaintiffs' inadequately rebutted (but not unrebuttable) evidence, this court finds that the prevailing market rate for 1993 is $ 260 per hour.

 c. Retainer Provision

 Defendants' final argument against plaintiffs' requested $ 260 hourly rate stems from defendants' interpretation of a provision of the retainer agreement between plaintiffs and their counsel. Under the retainer agreement, plaintiffs paid their counsel only $ 100 per hour for their time on this case, and plaintiffs and their counsel agreed that any portion of a fee award that exceeds "the amount of fees actually incurred by the clients" shall be remitted to the clients. Believing this provision to award plaintiffs any portion of the award that exceeds the $ 100 hourly rate that plaintiffs paid their counsel under the agreement, defendants argue that awarding any rate higher than that $ 100 rate would grant plaintiffs an impermissible windfall and violate the bar of Kay v. Ehrler, 499 U.S. 432, 111 S. Ct. 1435, 113 L. Ed. 2d 486 (1991), against awarding fees to pro se plaintiffs.

 Defendants have misconstrued the retainer agreement. It does not remit to plaintiffs any fraction of this fee award that exceeds the amount plaintiffs have already paid their counsel, as defendants claim. Rather, it simply prevents counsel from receiving double payment for their services. The agreement guarantees that counsel will not collect both the court's award of fees for their work and plaintiffs' payment of fees to them for that same work. Under the agreement, once counsel have in hand both the court's fee award and the fees paid to them by plaintiffs, counsel must subtract from that combined amount the "fees actually incurred by the clients" -- i.e., the hours counsel worked for plaintiffs multiplied by the reasonable hourly rate -- and remit the difference to plaintiffs. In short, the retainer agreement ensures that counsel receive only what they have earned (or more precisely, what they would have earned if they had charged market rates).

 This is the understanding of this provision shared by plaintiffs *fn17" and their counsel. *fn18" Nothing in the provision prevents this court from awarding plaintiffs a rate higher than $ 100 per hour.

 2. Reasonable Number of Hours Expended

 Plaintiffs request compensation for the hours they expended on this case, including time expended litigating this fee petition. (A reasonable fee for time reasonably expended on fee applications is recoverable. See, e.g., Sierra Club v. E.P.A., 248 U.S. App. D.C. 107, 769 F.2d 796, 811 (D.C. Cir. 1985); Environmental Defense Fund v. E.P.A., 217 U.S. App. D.C. 189, 672 F.2d 42, 62 (D.C. Cir. 1982).) Defendants argue that these claimed hours should be cut by five percent, mainly because plaintiffs did not support with specific examples their assertions that they used sound billing judgment.

 Yet plaintiffs' counsel did use good billing judgment, well-documented for this court's review. (Weiss Decl. (Application) at P 12; Barnett Decl. (Application) at P 1.) For example, Ms. Weiss reduced her bills by about twenty hours in October 1988 when she felt that her daughter's hospitalization distracted her and made her less efficient. Ms. Weiss also carefully billed the 17.05 hours she spent doing paralegal work -- drafting and updating a chronology of events, summarizing documents, organizing documents and preparing exhibits -- at paralegal rates, not at her own higher rates. (Weiss Decl. (Application) at P 12.) *fn19" Defendants charge that time plaintiffs' counsel billed for meetings between Ms. Weiss and Ms. Barnett is duplicative, yet at these meetings counsel tried to coordinate plaintiffs' litigation strategies for efficiency. In any event, Ms. Weiss has not billed for at least twenty hours of the time she spent conferring with Barnett. Lastly, in plaintiffs' application counsel deleted all non-billed and non-billable matters. For example, counsel also did not charge for the two hours spent conferring with another attorney who was also litigating against the District of Columbia. Nor did Ms. Weiss charge for about twelve hours she spent calling plaintiffs, witnesses, or Ms. Barnett from home.

 In short, plaintiffs' counsel used sound billing judgment and documented their billing decisions well enough for this court to confirm that. Plaintiffs may recover fees for all of their time.

 B. Law Clerks

 For the services of their counsels' law clerks and for the time that Ms. Weiss spent doing law-clerk-type chores, plaintiffs claim $ 5,228.00, for 65.35 hours at $ 80 per hour. (Reply Ex. 1.)

 The work of paralegals and law clerks is compensable, as part of a "reasonable attorney's fee," according to the practice prevailing the legal community. See Jenkins, 491 U.S. at 285-87. The prevailing practice in the District of Columbia is for lawyers to bill clients for the work of their law clerks at the prevailing market rate. *fn20" Plaintiffs have submitted reasonably persuasive, effectively unrebutted, evidence that the current prevailing market rate for law clerks in the District of Columbia is $ 80 per hour. (The hourly rate plaintiffs claim -- $ 80 per hour -- is the rate that the U.S. Attorney's matrix would award for the year 1992-93 if the matrix were extended to this year according to the matrix's own extrapolation method.) *fn21" Plaintiffs have documented the time of their law students and of Ms. Weiss in sufficient detail, listing services performed by date and time. (Reply Ex. 6). Thus, plaintiffs may recover their requested fees for their law clerks.

 C. Current Rates

 Plaintiffs request a fee award calculated at current, not historical, rates. Because awarding current rates may mitigate the hardship of the seven years' delay between the first billing in this case and final payment, *fn22" plaintiffs shall be compensated at current market rates.


 Plaintiffs seek an assortment of out-of-pocket costs incurred in the course of this litigation, and the question before this court is which of these costs Congress has authorized this court to shift to defendants. In § 1988, Congress has authorized the shifting of only those out-of-pocket costs that are customary elements of an "attorney's fee"; in 28 U.S.C. § 1920, Congress has authorized the shifting of other out-of-pocket costs. This court may shift only those costs that fit into one of these two categories. *fn23"

 The former category -- encompassing all customary elements of an "attorney's fee" -- includes all those out-of-pocket expenses that have "traditionally been included in calculations of the lawyers' hourly rates," including those out-of-pocket costs that many lawyers have recently removed from their hourly rates and now bill separately to the client. *fn24"

 Other statutes, notably 28 U.S.C. § 1920, determine which items of expense are included in the latter category. *fn25" These include "those costs incurred by a party to be paid to a third party, not the attorney for the case, . . . including, among others, docket fees, investigation expenses, deposition expenses, witness expenses, and the costs of charts and maps." Northcross, 611 F.2d at 639.

 A. Costs Incurred by Plaintiffs' Counsel

 Plaintiffs claim reimbursement for two sets of expenses incurred in this litigation: costs their counsel incurred, and costs plaintiffs themselves incurred. Under the first heading, plaintiffs claim compensation for costs of deposition transcripts, subpoenas, photocopying, postage, complaint filing fee, long distance telephone calls, messenger service, and local transportation and parking that their counsel incurred litigating Sexcius.

 1. Costs Traditionally Included in an "Attorney's Fee "

 Reasonable photocopying, postage, long distance telephone, messenger, and transportation and parking costs are customarily considered part of a reasonable "attorney's fee." *fn26" If plaintiffs' request for these costs are sufficiently well-documented and reasonable, plaintiffs may recover these out-of-pocket expenses pursuant to the statutory authority of § 1988 to shift "attorney's fees."

 Defendants have conceded that the amounts plaintiffs have claimed in photocopying, postage, and long distance telephone calls costs are "reasonable expenses." (Defs.' Opp'n, at 25.) However, defendants do challenge plaintiff's counsels' travel expenses and messenger service expenses as insufficiently documented. (Defs.' Opp'n, at 26.) Defendants are correct that plaintiffs' original request for messenger service costs was too high. However, in their reply memorandum, plaintiffs eliminated all hourly messenger charges and requested compensation for only the remaining standard fees. (Reply Ex. 10.) These standard fee charges are well-documented and reasonable, and plaintiffs may recover them.

 Similarly, in their application, plaintiffs claimed $ 123.60 for their counsels' local transportation and parking costs. After defendants challenged this amount as unsupported, plaintiffs cut from their request all but the well-documented costs, requesting only $ 108.50 in charges listed by date and amount. Plaintiffs may recover this reduced amount.

 2. Costs Shifted by § 1920

 The costs associated with deposition transcripts are clearly compensable under § 1920(4), if the costs are reasonable, the expenditures well-documented, and the depositions "necessarily obtained for use in the case." 28 U.S.C. § 1920(4). See Robertson v. McCloskey, 121 F.R.D. 131, 134 (D.D.C. 1988) ("costs associated with taking depositions" are taxed under § 1920(4) as transcripts "necessarily obtained").

 Because defendants have conceded that plaintiffs' deposition transcript costs are "reasonable," *fn27" and because the costs of the deposition transcripts are well-documented, plaintiffs may recover their claimed deposition costs. Plaintiffs may also recover their claimed filing fees.

 3. Costs that Cannot be Shifted

 Plaintiffs' subpoena costs may not be shifted to defendants. The cost of subpoenas is not a customary element of an attorney's fee, and it is clearly not taxed under § 1920. *fn28"

 B. Costs Incurred by Plaintiffs Themselves

 Plaintiffs also seek compensation for a second category of costs: the costs incurred not by counsel, but by plaintiffs themselves. Plaintiffs themselves paid out-of-pocket for some of the photocopying and postage costs of their case, incurred some travel expenses going to and from litigation-related events, and lost a portion of their wages while litigating this case.

 1. Costs of Photocopying, Postage, and Travel

 In order to save money, plaintiffs' counsel recruited plaintiffs themselves to review and forward new documents to Ms. Weiss and to interview potential witnesses. In doing these tasks, plaintiffs incurred some photocopying and postage costs that their counsel could have incurred had counsel done the tasks in the first place. (Weiss Decl. (Application) at P 14.)

 Because reasonable photocopying and postage are customarily considered part of a reasonable "attorney's fee," plaintiffs' out-of-pocket expenses would clearly be compensable if their counsel had incurred them first and then billed these costs to plaintiffs. See Northcross, 611 F.2d at 639. Denying plaintiffs compensation for these costs would force clients in the future to insist on the senseless formality of having their counsel incur out-of-pocket costs first (perhaps at higher expense) and bill them afterwards. Plaintiffs' requests for reimbursement of photocopying and postage costs are well-documented, and defendants concede the amounts claimed are "reasonable." (Defs.' Opp'n, at 25.) Plaintiffs may recover their out-of-pocket photocopying and postage costs.

 However, plaintiffs may not recover their travel expenses. In her declaration, Ms. Weiss states that plaintiffs also incurred "travel" costs in the course of reviewing and forwarding new documents to counsel and interviewing potential witnesses. (Weiss Decl. (Application) at P 14). If this were true -- if, for example, plaintiffs had incurred travel costs running about town doing the sort of work that their lawyers would have done if plaintiffs themselves had not -- plaintiffs would have a plausible claim. They might have persuasively argued that they were simply incurring travel costs that their counsel would have billed to them anyway, had counsel performed the travel themselves.

 However, the travel costs claimed by plaintiffs appear to be costs for which their counsel could never have billed them. Plaintiffs claim compensation for transportation and parking associated with court hearings and depositions, events that their counsel undoubtedly attended as well. (Pls.' Ex. 9 (Reply) at P B.) In this instance, plaintiffs were clearly not incurring costs in their counsels' stead. Rather than seeking compensation for the type of costs routinely incurred by lawyers and billed to clients, plaintiffs are attempting to claim compensation for their personal costs. Thus plaintiffs may not recover their transportation and parking costs that they themselves incurred.

 2. Lost Wages

 Plaintiffs also claim compensation for the wages they lost taking leave to assist in the development and trial of this case. Ms. Sexcius missed several days of work on unpaid leave in order to prepare for court appearances, appear in court, confer with counsel and potential witnesses, and review and prepare court documents. (Sexcius Decl. (Application) at P 1.) (Mr. Edmead appears to have taken time off work to make similar efforts to develop the case, but he has not submitted an affidavit stating that his work leave was unpaid.)

 However, Congress has not authorized the courts to shift the expense of wages lost during the course of litigation. Lost wages are clearly not one of the elements of an "attorney's fee" shifted by § 1988. Elements of an attorney's fee must be, at a minimum, those costs that are incurred by the attorneys (or that easily could have been incurred by the attorneys, see supra (III)(B)(1)) and then billed to the clients. Plaintiffs' loss of wages, by contrast, is an out-of-pocket loss that has nothing to do with attorneys' billing practices. Nor are lost wages one of the costs Congress has shifted under § 1920 or some other statute. Section 1920 makes no mention of lost wages in its list of taxable costs, and this court knows of no other statute that expressly shifts lost wages to the losing party. *fn29"

 Because Congress has not empowered this court to shift the burden of lost wages under § 1988, § 1920, or other statute, this court cannot award plaintiffs the wages they lost during litigation. This conclusion conflicts with this Circuit's 1984 ruling that § 1988 shifts lost wages, *fn30" but it is faithful to the Supreme Court's 1991 ruling that unless an out-of-pocket expense is either a traditional element of a § 1988 "attorney's fee" award, or is expressly shifted by § 1920 or some other statute, federal courts lack power to shift the cost. In the present case, § 1988 and § 1920 "define the full extent of a federal court's power to shift litigation costs absent express statutory authority to go further." *fn31"

 IV. CONCLUSION For litigating the merits of Sexcius and for litigating this fee petition, plaintiffs are awarded fees in accordance with the chart below: Prevailing Attorney Hours Market Rate Amount Ms. Weiss -Original request 629.85 $ 260 per hour $ 163,761.00 -Supplemental request 22.85 $ 260 per hour $ 5,941.00 Ms. Barnett -Original request 249.35 $ 260 per hour $ 64,831.00 -Supplemental request 9.85 $ 260 per hour $ 2,561.00 Law Students 65.35 $ 80 per hour $ 5,228.00 Total Fees for Merits and Fee Litigation $ 242,322.00


© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.