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Salazar v. District of Columbia

United States District Court, District of Columbia

January 30, 2014

OSCAR SALAZAR, Plaintiffs,


WILLIAM D. STIEHL, District Judge.

Plaintiffs have filed a Motion for an Award of Litigation Costs, Including Attorneys' Fees and Expenses, For 2011 and Certain Categories and Work From 2010 Through 2012 That Had Previously Been Held in Abeyance or Not Decided [Dkt. No. 1803]. The Court has already awarded Plaintiffs $476, 667.78 [Dkt. No. 1841] that was undisputed by Defendants. Therefore, the amount remaining to be dealt with in this Motion is $806, 933.08, and Plaintiffs seek a total award of $1, 283, 600.86.[1] Upon consideration of the Motion, the Opposition [Dkt. No. 1840], the Reply [Dkt. No. 1859], Defendants' Surreply [Dkt. No. 1899], and the extensive record in this case, the Court concludes that the Motion should be granted in part and denied in part.

Defendants raise many, many objections to the lengthy papers and supporting data filed by Plaintiffs. Some have merit, many do not, and some are simply trivial. The Court will address in turn those which merit analysis.


In Salazar I, 123 F.Supp.2d 8 (D.D.C. 2000), and in all subsequent fee rulings, the Court ruled that the methodology under which the Laffey rates should be updated is properly measured by the Legal Services Index ("LSI") of the Nationwide Consumer Price Index ("CPI"), rather than by the All-Items CPI for the Washington, D.C. area. The Court remains convinced that this methodology is appropriate.

First, despite the fact that Defendants did not appeal the adoption of this method in the 2000 decision, they have recently begun to challenge the use of the LSI. Three years ago, the Court wrote a lengthy explanation of why it rejected use of the All-Items CPI, finding that the LSI is a more reliable index for measuring legal hourly billing in the Washington, D.C. area. Salazar v. Dist. of Columbia , 750 F.Supp.2d 70, 72-74 (D.D.C. 2011) ("Salazar II"). As the Court originally explained in Salazar I, 123 F.Supp.2d at 14-15, "the [LSI-adjusted][ Laffey index 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."

In an extremely thorough and well-researched opinion issued recently, Judge Beryl A. Howell of this Court cited data further supporting this conclusion:

[T]he USAO Matrix is based on a logical assumption, namely, that the rate for legal services in the Washington, D.C. area increases in lock step with the overall rise in the costs of all goods and services, including pizza delivery and cleaning services for this area.... There is simply no evidence, however, that this is, in fact, a correct presumption. On the contrary, the [Bureau of Labor Statistics] CPI shows that the cost of legal services nationally has far outstripped the increase in overall prices. The nationwide cost of legal services has jumped ninety-one percent, nearly twice as much as the general CPI, since 1997.... Considering that the Washington, D.C. market is ranked third nationally for the highest cost of legal services, behind only New York and San Francisco, a nationwide average for the cost of legal services logically would be expected to underestimate the rates charged in this area.... [T]he LSI-adjusted rates are corroborated by recent survey data.... This survey, reported in Corporate Counsel magazine, revealed that the average hourly rate in - for a law firm partner in the Washington, D. C. market is $649.24 per hour... which is $25 per hour higher than the highest rate the LSI-adjusted matrix predicts for an attorney with between eleven and nineteen years of experience, see LSI-adjusted matrix, and more than two hundred dollars more per hour than the corresponding rate in the USAO Matrix.

Eley v. Dist. of Columbia, No. 11-309, ___ F.Supp.2d ___, 2013 WL 6092502, at *9-*10 (D.D.C. Nov. 20, 2013); see also Karen Sloan, NLJ Billing Survey: $1, 000 Per Hour Isn't Rare Anymore, National Law Journal (Jan. 13, 2014).

Judge Howell goes on to point out that, "considering that Washington, D.C. is among the most expensive legal services markets in the country, ... it would appear that the use of a nationwide legal service index is, if anything, likely to underestimate the costs of local legal services because such a rate is an average of all costs nationwide. In short, the LSI-adjusted matrix is probably a conservative estimate of the actual cost of legal services in this area, but at the very least it appears to be a more accurate reflection of the cost of legal services both in this community and nationwide." Eley, 2013 WL 6092502, at* 10 (emphasis in original).

Second, Defendants now claim that use of the LSI contravenes the Supreme Court's ruling in Purdue v. Kenny A. , 559 U.S. 542 (2010). Defendants' reading of Purdue is simply inaccurate. In that case, Justice Alito set forth the basic applicable law relating to the calculation of attorneys' fees and expenses in our legal system. Id. at 550-52. In the course of that discussion, he addressed various methodologies used to determine "a reasonable attorney's fees as part of the costs" under 42 U.S.C. § 1988. Id . Recognizing that Congress' purpose in enacting Section 1988 was to "ensure that federal rights are adequately enforced, " id. at 550, Justice Alito pointed out that, at this point in time, the overwhelmingly accepted methodology for assessing attorneys' fees under federal fee-shifting statutes is the well known "lodestar method, " which "roughly approximates the fee that the prevailing attorney would have received if he or she had been represented by a paying client who was billed for the hours in a comparable case." Id. at 551 (emphasis in original). This method is often referred to as "the number of hours reasonably expended multiplied by a reasonably hourly rate." Copeland v. Marshall , 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc).

After setting forth the "six important rules" that governed the case, Justice Alito focused on the particular facts involved, the ruling of the District Court Judge granting a 75 percent increase of the lodestar amount, and the ruling of the Court of Appeals affirming the District Court. 559 U.S. at 552-59. The Supreme Court concluded that "the District Court did not provide proper justification for the large enhancement that it awarded." Id. at 557.

This case does not involve an enhancement. Rather, it involves a totally different issue - the method for updating the lodestar amount over time to reflect the direction in which hourly legal fees are moving throughout the country. That is a far cry from the issues in Purdue where the trial judge increased the lodestar by 75 percent without giving any justification for his actions.

Thus, in this case, the issue is whether an index which measures the movement of national legal service costs to calculate increased legal fees is more reasonable and accurate than an index which measures the costs of numerous non-legal consumer items, calculated for the Washington D.C. area. Defendants have made no attempt and offered no evidence to show that the methodology focusing on all consumer goods in the Washington, D. C. area provides more accurate rates than the methodology that focuses on the costs of legal fees throughout the country.

Defendants argue that Purdue was an intervening change in the law that "provides district courts with clarity as to how to calculate reasonable attorneys' fees under§ 1988." Defendants' Opp'n at 53. Since Purdue was decided more than nine months before Salazar II was issued, it cannot exactly be considered an "intervening" change in the law. Regardless, as noted above, the analysis in Purdue dealt solely with an enhancement of the lodestar, an issue irrelevant to this case. Using a particular method (i.e., applying the LSI to the Laffey rates) to calculate attorneys' fees does not constitute an enhancement. Consequently, the Supreme Court's ruling does not provide guidance on this issue.

The Court is not insensitive to the fact that this case, filed in 1993, has generated very substantial attorneys' fees for Plaintiffs - fees which are ultimately paid by D.C. taxpayers. However, as our Court of Appeals noted more than thirty years ago, although "the government has a deep pocket... we think... that fees should be neither lower, nor calculated differently, when the losing defendant is the government." Copeland , 641 F.2d at 896 (internal quotation marks omitted).

Moreover, the bottom line is that Defendants entered into a Settlement Order in this case which requires Plaintiffs' counsel to provide extensive monitoring of the provision of EPSDT services to class members. The day that the Parties are able to come to a final settlement in this case, [2] it will no longer be necessary to calculate reasonable attorneys' fees in order to ensure that children in the District of Columbia obtain all the EPSDT benefits to which they are entitled. Both Supreme Court and D.C. Circuit precedent is clear that party identity is not a legally cognizable reason for reducing an attorneys' fee award in civil rights litigation. Id .; Save Our Cumberland Mountains, Inc. v. Hodel , 857 F.2d 1516, 1524 (D.C. Cir. 1988).


First, Defendants argue that Paragraph 64 of the Settlement Order prohibits "non-lawyers, " i.e., paralegals and law clerks, from being compensated for their work on behalf of individual class members. Defs.' Opp'n at 10-12. As already noted, Paragraph 64 provides in relevant part that:

Plaintiffs' counsel may respond to all calls which come to their office and make reasonable inquiry to determine whether the caller is a member of the plaintiff class. If the caller is a member of the plaintiff class, Plaintiffs' counsel may provide the caller with legal assistance. The reasonable time and expenses of Plaintiffs' counsel in making such inquiry and providing such legal assistance shall be deemed compensable monitoring of this Order under 42 U.S.C. § 1988 and applicable law interpreting that statutory provision. The hourly rate for handling the claims of individual class members shall be $75/hour, regardless of the experience level of the lawyer who performs the work.

Order Modifying the Amended Remedial Order of May 6, 1997 and Vacating the Order of March 27, 1997, at 40 (emphasis added) [Dkt. No. 663] ("Settlement Order").

It is undisputed that section 1988 and the "applicable law interpreting that statutory provision" governs the computation of "reasonable time and expenses" for responding to all calls that come into Plaintiffs' office and, if the caller is a member of the plaintiff class, for providing that caller with legal assistance. Moreover, Paragraph 64 sets an hourly rate far below what would have been charged in the legal community in 1999 when the parties agreed to the Settlement Order. See Salazar I, 123 F.Supp.2d at 10 (noting that Paragraph 64 sets out an hourly rate of $75.00 per hour, regardless of experience, while Paragraph 65 sets a scale of billing rates for attorney work between $200 and $315 per hour).

In Missouri v. Jenkins , 491 U.S. 274 (1989), the Supreme Court explained that Section 1988's "reasonable attorney's fees cannot have been meant to compensate only work performed personally by members of the bar." Id. at 285 (internal quotations omitted). The Court then noted "the self-evident proposition" that attorney's fees would encompass "the work of paralegals." Recently, in Richlin Sec. Serv. Co. v. Chertoff , 553 U.S. 571 (2008), the Supreme Court reaffirmed Jenkins, and said that they "were so confident that Congress had given the term attorney's fees' this traditional gloss that we declared it self-evident' that the term embraced the work of paralegals as well. as attorneys." Id. at 580 (quoting Jenkins , 491 U.S. at 285).

In sum, the Supreme Court has made it crystal clear that paralegals may be compensated for providing certain types of legal services to clients.

Second, Defendants' claim that both Plaintiffs and Defendants never "contemplated... that these legal services would be performed by paralegals" lacks any factual foundation. Defs.' Opp'n at 11.

Finally, it should be noted that Plaintiffs have filed 23 prior fee applications since entry of the Settlement Order.[3] On each of those occasions, Defendants paid compensation for paralegals and law clerks to assist individual class members as provided in Paragraph 64 of the Settlement Order. It is a little late for Defendants now - after the passage of many years - to challenge the interpretation of one of the key provisions of that Order. They had 23 prior chances to do that and failed to raise the arguments they are now making.[4]


Defendants make an across-the-board argument that Plaintiffs' time records are vague and inadequate because Plaintiffs have not recorded separately the work that their paralegals performed for each of the 1, 276 individuals for whom Plaintiffs provided assistance in 2011. Defs.' Opp'n at 13-14. In its Memorandum Opinion of October 28, 2009 [Dkt. No. 1520, p. 7 n.10], the Court rejected the same argument, and also noted that the parties had reached an agreement in 2003 to use the individual-caller chart which Plaintiffs created to present adequate information regarding the work done on the behalf of individuals.

Moreover, Plaintiffs have, in this fee application, filed Exhibit 22 (under seal). It contains a brief summary as to each individual and, complying with the parties' 2003 agreement, provided Defendants with information as to each of the 1, 276 individual claimants assisted. Finally, Plaintiffs have presented summaries of how much time was spent on various work for individual cases, i.e., recertification, reimbursement, referral for non-class members, etc. Pls.' Ex. 8, at 1-9.

Defendants have asked the Court to reduce fees in this category by 40 percent or to require Plaintiffs to resubmit their time records with additional data. The Court sees no justification for the request and it is denied.


A. Unsuccessful Individual Claims

Defendants object to fees that Plaintiffs have requested for work on particular individual claims on which they did not prevail. Defs.' Opp'n at 15. However, Defendants ignore the Supreme Court's statement that in a case involving post-judgment monitoring of a consent decree, "measures necessary to enforce the remedy ordered by the District Court cannot be divorced from matters upon which [Plaintiffs] prevailed in securing the consent decree." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air , 478 U.S. 546, 558-59 (1986). Plaintiffs are entitled to attorneys' fees for the work they do to monitor Defendants' compliance with the extensive and detailed Settlement Order, negotiated and consented to by all parties in this case, as long as the efforts of Plaintiffs' counsel are "reasonably related to the claims upon which Plaintiffs were definitely successful." Turner v. Orr , 785 F.2d 1498, 1504 (11th Cir. 1986)).

The Court agrees that each individual claim has to be examined separately to establish that a reasonable amount of hours was expended, but Plaintiffs' failure to prevail on a particular claim does not mean automatic non-payment of all requested fees. Defendants have failed to demonstrate that the four individual claims they challenge involved claims "distinct in all respect from [Plaintiffs] successful claims." Nw. Coal. for Alternatives to Pesticides v. Browner , 965 F.Supp. 56, 65 (D.D.C. 1997)). The Court finds that those four claims presented issues that "were inextricably intertwined" with the issues underlying the original suit and the Settlement Order in this case. See Blackman v. Dist. of Columbia , 390 F.Supp.2d 16, 20 (D.D.C. 2005) (noting that "test is whether the later issues litigated were inextricably intertwined with those on which the plaintiff prevailed in the underlying suit.") (quotation and citation omitted).

Representing Plaintiffs in administrative hearings to enforce claims upon which Plaintiffs prevailed at an earlier stage of this litigation is a form of monitoring that this Court has long recognized as compensable. See, e.g., Mem. Op. of Aug. 7, 2003, at 2-4 [Dkt. No. 966]; Mem. Op. & Order of Mar. 14, 2011 [Dkt. No. 1723]; Mem. Order of March 14, 2011 [Dkt. No. 1724]. To hold otherwise would be inequitable and discourage Plaintiffs' counsel from aggressively representing clients who needed their help. Finally, it should not be forgotten that, pursuant to Paragraph 64 of the Settlement Order, attorneys working on such "monitoring" cases are paid far below the updated Laffey rates.

In sum, there is no justification for the reduction of all fees for the four claims challenged by Defendants in which Plaintiffs were not successful.

1. The "D.C." Claim

Plaintiffs brought a case before the Office of Administrative Hearings ("OAH") regarding the denial of dental services to "D.C." The case was dismissed with prejudice, and Plaintiffs billed $17, 318.20 for 132.2 hours of legal services. There is no question that the denial of EPSDT services was "inextricably intertwined" with the claims on which the Plaintiffs prevailed in this law suit. Defendants are simply wrong that this claim is "distinct in all respects from [the] successful claims." Northwest Coal., 965 F.Supp. at 65.

2. The "A.M." Claim

Plaintiffs billed the District of Columbia $18, 399.87 for 140.46 hours for the representation of A.M. During the pendency of the case, A.M. was removed by the District Child and Family Services Agency to a foster home due to allegations of neglect. After A.M.'s removal, Plaintiffs voluntarily dismissed the law suit. Defendants argue that the requested fees are excessive and that no work related to the neglect allegations should be ...

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