The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiffs have filed a Motion for an Award of Litigation Costs, Including Attorneys' Fees and Expenses, for July Through December 2007 and for 2008. They seek a total of $1,010,438.12 for this work. Upon consideration of the Motion, the Opposition, the Reply, and the extensive record in this case, the Court concludes that the Motion should be granted in part and denied in part.*fn1
Paragraph 64 of the Settlement Order entered January 25, 1999, provides that Plaintiffs' counsel shall be paid $75 an hour for handling the claims of individual class members, regardless of the experience level of the lawyer who performs the work. "This hourly rate shall be adjusted annually, beginning on January 1, 1999, based on the U.S. Department of Commerce Consumer Price Index for Legal Services" ("National Legal Services CPI").
Paragraph 65 of the Settlement Order provides that Plaintiffs' counsel shall be paid at the rates of $315 an hour for the time of Bruce J. Terris and Lynn Cunningham, and $265 an hour for the time of Kathleen L. Millian and Jane Perkins, for monitoring Defendants' Compliance with the Settlement Order. Reasonable paralegal time shall be compensated at the rate of $75 an hour. "These hourly rates shall be adjusted annually, beginning on January 1, 1999, based on the U.S. Department of Commerce Consumer Price Index for legal services."
Paragraph 66 of the Settlement Order states that "the parties do not intend these rates [in Paragraphs 64 and 65] to apply for any purpose other than those set forth in [those paragraphs]."
As to work not specifically covered by Paragraphs 64 and 65, this Court ruled on October 30, 2000, that the Laffey matrix rates, which had been upheld by our Circuit,*fn2 should be updated by application of the National Legal Services CPI rather than the D.C. All-Items CPI. Salazar v. D.C., 123 F. Supp.2d 8, 11-15 (D.D.C. 2000) ("Legal Fees Opinion").
1. Defendants' primary argument is that the Index used to update the agreed hourly rates specifically set forth in ¶¶ 64 and 65 of the Settlement Order and in determining the appropriate rates for other work described in ¶ 66 of the Order, should be changed. It is a little late for Defendants to be making this argument. This Court decided, way back on October 30, 2000, how attorneys' fees were to be calculated and what Indexes were to be used for updating those calculations as time wore on in implementing the Settlement Order. Salazar, id.. In other words, to state the obvious, that decision was issued more than 10 years ago. At least seven Orders and explanatory Opinions awarding attorneys' fees to Petitioners have since been issued. Defendants took no appeal from the 2000 ruling, nor did they ever file a motion for reconsideration and/or modification of the Settlement Order under Rule 60(b) of the Federal Rules of Civil Procedure.
Even if Defendants had filed such a Motion, in a somewhat more timely fashion, they would not have met the requirements of Rule 60(b)(5). First, that Rule requires, that any motion made under Rule 60(b) be made within a reasonable time and "no more than a year after the entry of the judgment or order or the date of the proceeding." Obviously, Defendants have not meet that requirement.
Second, our Court of Appeals has stated clearly that when a settlement agreement is involved, as in this case, Rule 60(b) relief is "an extraordinary remedy, as would be any device which allows a party . . . to escape commitments voluntarily made and solemnized by a court decree." NLRB v. Harris-Teeter Supermarkets, 215 F.3d 32, 35 (D.C. Cir. 2000).
Third, our Circuit has also emphasized that "[t]he case law makes clear that Rule 60(b)(6) is not an opportunity for unsuccessful litigants to take a mulligan." Kramer v. Gates, 481 F.3d 788, 792 (D.C. Cir. 2007). More specifically, the Circuit has said "[r]ule 60(b) . . . cannot be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." So. Pacific Communications Co. v. Am. Tel. & Tel. Co., 740 F.2d 1011, 1017 (D.C. Cir. 1984).
Fourth, Defendants also rely upon Rufo v. Inmates of Suffolk Cty. Jail, 501 U.S. 367 (1992). In Rufo, the Supreme Court "carefully delineated the three conditions under which modification of a consent decree under Rule 60(b)(5) may be appropriate, (1) when changed factual conditions [or law] make compliance with the decree substantially more onerous, (2) when a decree proves to be unworkable because of unforeseen obstacles, or (3) when enforcement of the decree without modification would be detrimental to the public interest." See this Court's extensive discussion of Rufo and Horne v. Flores, __ U.S. __, 129 S.Ct. 2579, 2596-97, 174 L.Ed.2d 748 (2009) in Salazar v. D.C., 685 F. Supp.2d 72, 77 (D.D.C. 2010). None of these three conditions have been satisfied by Defendants.
In sum, Rule 60(b) cannot form the procedural vehicle for Defendants to now raise this issue, more than 10 years after the Court first ruled on it. Consequently, the law-of-the-case doctrine applies and the original Legal Fees Opinion stands. Kimberlin v. Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999); LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc).
2. Turning to the merits, Defendants argue that use of the National Legal Services CPI to update the agreed-upon hourly rates set forth in ¶¶ 64-65 of the Settlement Order and to determine the appropriate rates for other work described in ¶ 66 of the Order, should not be applied because "it is no longer equitable to apply this index and doing so results in paying counsel in this case far more than is necessary to attract competent counsel in fee-shifting complex litigation in the District of Columbia." Defs.' Opp. at 2. In its Legal Fees Opinion deciding this issue, the Court explained at some length why use of the National Legal Services CPI, rather than the updated Laffey matrix, which relies on the D.C. All-Items CPI, should be used. Those reasons still persuade the Court of the correctness of that decision.
Most significantly, the Court still believes that use of the National Legal Services CPI "has the distinct advantage of capturing the more relevant data because it is based on the legal services component of the Consumer Price Index rather than the general CPI on which the U.S. Attorney's Office matrix is based." Salazar, 123 F. Supp.2d at 14-15. As the Court explained in the Legal Fees Opinion, relying upon the explanation of Plaintiffs' expert Dr. Michael Kavanaugh, the D.C. All-Items CPI "does not contain a separate component for legal services -- and that such services are included in a much larger, more generalized category of 'other goods and services.'" Id. at 15. Dr. Kavanaugh's explanation makes good sense: "[e]conomists use as specific an index as possible to determine changes in prices in a part of an industry" and therefore "components of the Consumer Price Index are the better ...