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Makray v. Perez

United States District Court, District of Columbia

February 8, 2016

LAURA J. MAKRAY, Plaintiff,
THOMAS PEREZ, Secretary, U.S. Department of Labor Defendant.



The plaintiff, Laura Makray, prevailed at trial on her claim that her employer, the Office of Inspector General (“OIG”) of the U.S. Department of Labor (“DOL” or “defendant”), discriminated against her on the basis of her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the jury awarded her damages of $200, 000.00 stemming from her non-selection for promotion to Director of DOL’s Office of Audit Quality Assurance in January 2011. See Compl. ¶ 9, ECF No. 1; Judgment on the Verdict, ECF No. 71. With this judgment now final, the plaintiff seeks reimbursement of attorneys’ fees and litigation costs she incurred in pursuing her successful claim throughout the past several years. The parties have largely resolved any remaining differences as to these fees and costs, leaving in dispute only the reimbursement rate for roughly 350 hours billed by the plaintiff’s lead counsel to prepare for trial and present the case to the jury. Pending before the Court is the plaintiff’s Petition for a Partial Award at the Salazar/LSI Rate (“Pl.’s Pet.”), ECF No. 85, to cover these trial preparation and presentation hours. For the reasons set out below, the plaintiff’s request for reimbursement for these hours at the applicable rate established in Salazar v. District of Columbia, 123 F.Supp.2d 8 (D.D.C. 2000), is granted.


Compared to typical employment discrimination claims, the plaintiff’s Title VII gender discrimination claim against DOL presented several unique challenges. First, the DOL component accused of gender discrimination is the supposed watchdog for the very federal agency tasked with enforcing federal labor and employment laws. Thus, the DOL OIG is far from a conventional defendant. Since DOL OIG functions ostensibly as an arm of federal law enforcement, the plaintiff’s success at trial rested in large measure on her ability to convince the jury that senior DOL OIG officials, who themselves are experienced investigators responsible for rooting out misconduct within DOL, intentionally discriminated against the plaintiff because she is a woman. Pl.’s Pet. at 20 (citing Decl. Robert C. Seldon (Apr. 21, 2015) (“Seldon Decl.”) ¶ 75, ECF No. 85-1). Indeed, during the course of the two-week trial, the jury in this case heard testimony from sixteen witnesses who were current or former DOL officials, including senior officials directly involved in the selection process that led to the plaintiff’s challenged non-selection for promotion. Minute Entries, dated Feb. 9–13, 18–20, 2015; Seldon Decl. ¶ 73. A number of these officials were called to testify as adverse witnesses during the plaintiff’s case-in-chief, requiring plaintiff’s counsel to undermine, methodically and persuasively, the credibility of these experienced officials regarding their purported basis for failing to promote the plaintiff. Id. ¶ 75.

Second, even where a witness was inclined to be supportive of the plaintiff’s position, eliciting such testimony before the jury was a difficult task. Though the Court denied the plaintiff’s blanket request to treat witnesses who remained employed at DOL OIG as hostile, see Trial Tr. (Feb. 11, 2015 AM) at 8:13–13:18, these witnesses had to testify in front of their boss, Assistant Inspector General (“AIG”) for Audit Elliot Lewis, who was accused of condoning the discriminatory conduct engaged in by his management team and sat at defense table as the agency representative during trial, see, e.g., id. at 4:14-17. Despite this potential chill of having to provide critical testimony about a current supervisor’s management, some current DOL OIG employees nonetheless testified in support of the plaintiff’s claim. One such current DOL OIG employee, who served as the plaintiff’s immediate supervisor and Director of the Office of National Talent Pool and Training, gave troubling testimony about experiencing setbacks at work after he provided testimony favorable to the plaintiff at an earlier deposition. Id. at 59:16– 61:13 (Testimony of Richard Woodford). Specifically, this witness testified at trial that, after he discussed his prior deposition in this matter with AIG Lewis, he lost his staff of three subordinate direct reports, making it “more challenging . . . to get [work] done.” Id. AIG Lewis and his deputy are responsible for the assignment of staff to this witness’s department. Id.[1]

Finally, the plaintiff’s presentation of her case was further complicated by DOL’s shifting defenses and legal positions both before and during trial. Pl.’s Pet at 19–20; see also Seldon Decl. ¶¶ 68–70. As just a sampling of the moving target presented to the plaintiff’s attorneys, DOL argued initially in its motion for summary judgment that the plaintiff’s non-selection for promotion stemmed in part from her relative lack of expertise in audit quality assurance. Def.’s Mem. Supp. Mot. Summ. J. at 24, ECF No. 19 (arguing that selectee “had considerably more directly related experience [than] Ms. Makray, having served as an auditor for 20 years at the time of his promotion, whereas Ms. Makray did not have auditing as a part of her position description at the time of her interview, but as of the time of her interview was assigned audits on an ad hoc basis”); Pl.’s Pet. at 19.[2] In subsequent briefing, however, the defendant abandoned this position, arguing that “in-depth technical expertise . . . [had] no basis in the reality of this hiring decision, ” Def’s Reply Mem. Supp. Mot. Summ. J. at 11, ECF No. 27 (internal quotations omitted), only to later revive its contention, during its opening statement at trial, that the plaintiff was not promoted due partially to her relative lack of expertise, Trial Testimony (Feb. 9, 2015 PM) at 59. DOL also posited in its opening statement that the plaintiffs non-selection was due to her inferior interview performance, her purported lack of leadership skills and, for the first time, her lack of interpersonal skills. Id. at 59:24-60:3, 62:14-63:24; Pl.’s Pet. at 19.[3] In support, the defendant elicited extensive testimony at trial from DOL OIG officials who previously testified in depositions that they did not participate in-or did not recall their participation in-the challenged selection process. Id. at 19-20 (citing Seldon Decl. ¶70).

Notwithstanding the obvious pressures on witnesses, as well as the shifting defense theories to justify the agency’s treatment of the plaintiff (as well as other women who had worked in the same agency component and testified about their perceptions of unfair treatment under the same supervisor and his management team), the plaintiff prevailed at trial, with the jury awarding substantial economic damages. See Judgment on the Verdict. This Court also awarded nearly all of the plaintiff’s requested equitable relief. Minute Order, dated Aug. 24, 2015.[4]

With the merits of the plaintiff’s claim now resolved, the parties have agreed upon a “partial, interim” fee award under which time billed by the plaintiff’s attorneys would be reimbursed, at a minimum, at rates provided by the USAO Laffey Matrix. Pl.’s Pet. at 1 & n.1. In total, this interim award entitles the plaintiff to at least $634, 564.20 in attorneys’ fees in connection with the 1667.60 hours her attorneys billed in connection with her underlying Title VII claim. Id. To arrive at this stipulated total, the plaintiff’s counsel voluntarily excluded more than 100 hours of attorney time, including sixty-three hours of time deemed to be “duplicative or excessive, ” and an across-the-board 10% reduction (totaling 54.21 hours) in the hours billed by a partner who assisted in representing the plaintiff. Seldon Decl. ¶ 52. These voluntary adjustments reduced the total overall award by at least $29, 000.00. See Id. ¶¶ 93–94. As a result, the stipulated interim total includes: (1) 577.2 hours billed by the plaintiff’s lead trial counsel, to be reimbursed at a rate of $520.00 per hour; (2) 233.35 hours billed by a partner, to be reimbursed at a rate of $495.00 per hour; (3) and 857.1 hours billed by an associate, 542.10 of which to be reimbursed at a rate of $255.00 per hour and the remainder of which to be reimbursed at a rate of $300.00 per hour.[5]

Beyond the interim award of $634, 564.20 in attorneys’ fees, the plaintiff’s present petition requests an “additional incremental” award of $92, 536.00 reflecting an increased reimbursement rate for the 344 hours her lead counsel billed in connection with preparation for and presentation at trial. Pl.’s Pet. at 1 & nn.1–2.


Under Title VII, the court “in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee (including expert fees) as part of the costs.” 42 U.S.C. § 2000e-5(k). While Title VII bars the United States from recovering attorneys’ fees, the statute explicitly provides that “the United States shall be liable for costs the same as a private [employer].” Id. In general, “[a] reasonable fee is one that is ‘adequate to attract competent counsel, but that does not produce windfalls to attorneys.’” West v. Potter, 717 F.3d 1030, 1033 (D.C. Cir. 2013) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)).

With this standard in mind, the D.C. Circuit has developed a “three-part” analysis for assessing whether a requested fee award is reasonable under federal statutes authorizing fee-shifting. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015). Under this three-step analysis, “[a] court must: (1) determine the number of hours reasonably expended in litigation; (2) set the reasonable hourly rate; and (3) use multipliers as warranted.” Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 61 (D.C. Cir. 2015) (internal citations and quotations omitted). With regard to the proposed hourly rate, the Court considers three sub-elements: “(1) ‘the attorneys’ billing practices, ’ (2) ‘the attorneys’ skills, experience, and reputation’ and (3) ‘the prevailing market rates in the relevant community.’” Id. at 62 (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107–08 (D.C. Cir. 1995)). In evaluating the factors that inform the appropriate reimbursement rate, there is a “strong presumption that the fee yielded by the now- ubiquitous ‘lodestar’ method, which bases fees on the prevailing market rates in the relevant community, is reasonable.” West, 717 F.3d at 1034 (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)).

“The ‘fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates.’” Eley, 793 F.3d at 100 (quoting Covington, 57 F.3d at 1107–08). Once an applicant meets this initial burden, a presumption applies that the number of hours billed and the hourly rates are reasonable. Covington, 57 F.3d at 1110–11; see also Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C. 2010) (citing Blackman v. District of Columbia, 677 F.Supp.2d 169, 172 (D.D.C. 2010)). At that point, the burden shifts to the opposing party to “provide specific contrary evidence tending to show that a lower rate would be appropriate.” Covington, 57 F.3d at 1109–10 (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982)).


After nearly four years of litigation, and close to a year after the plaintiff prevailed at trial on her claim that she was discriminated against on the basis of her gender while serving in DOL’s OIG, the remaining issue in dispute is relatively straightforward. In opposing the present fee application, DOL does not dispute that the plaintiff, having prevailed on her underlying Title VII action, is entitled to reimbursement for reasonable attorneys’ fees incurred in pursuing her successful claim. Def.’s Opp’n Mot. Salazar Rates & Alter. Cross-Mot. Discovery (“Def.’s Opp’n”) at 1, ECF No. 88. Likewise, to calculate these reimbursable fees, the parties have stipulated to the total number of hours reasonably billed by the plaintiff’s attorneys, as well as the rate at which the majority of these hours will be reimbursed. Pl.’s Pet at 1 & n.1. Notably, with respect to the applicable hourly rate for reimbursement, DOL does not dispute that this gender discrimination lawsuit qualifies as complex federal litigation. See generally Def.’s Opp’n. With these larger issues resolved, the present dispute centers on 344 hours billed by the plaintiff’s lead trial counsel, Robert C. Seldon, Esq., in connection with his preparation for trial and his successful presentation before the jury. While DOL does not contest the number of hours at issue, the agency contests the rate at which the plaintiff should be reimbursed for these trial preparation and presentation hours in this complex federal litigation. Id. at 5.

Specifically, the parties dispute which of two variations of the familiar Laffey fee matrix should be used to calculate the reasonable reimbursement rate for this subset of the total hours expended by one of the plaintiff’s attorneys. Initially set out in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), which was a Title VII class action employment discrimination lawsuit brought by a class of female flight attendants, the Laffey matrix recommends a presumptive maximum hourly rate for Washington, D.C.-area attorneys engaged in “complex federal litigation, ” id. at 372. In the years since its introduction, the original Laffey matrix has spawned two primary variations: (1) a version updated annually by the U.S. Attorney’s Office for the District of Columbia, which is linked to inflation, as measured by the Consumer Price Index (“CPI”) for all items in the Washington, D.C. area (“USAO Laffey Matrix”); and (2) an “enhanced” version, first approved in Salazar v. District of Columbia, 123 F.Supp.2d at 13, which is adjusted for inflation using the Legal Services Index (“LSI”) of the nationwide CPI (“Salazar/LSI Matrix”). See Eley, 793 F.3d at 101–02.

As noted, the plaintiff’s present petition requests an “additional incremental” award of $92, 536.00 reflecting an increased reimbursement rate for the 344 hours her lead counsel billed in connection with preparation for and presentation at trial. Pl.’s Pet. at 1 & n.2. Arguing that the rate supplied by the USAO Laffey Matrix, equating to $520 per hour, “does not accurately represent [her lead trial counsel’s] true market rate, ” the plaintiff contends that these hours should be reimbursed instead at the rate supplied by the Salazar/LSI Matrix, under which an attorney of her counsel’s experience is entitled to an hourly rate of $789. Id. at 1–2. Even though the plaintiff contends that this enhanced rate more closely reflects the actual value of her attorneys’ services throughout this case, id. at 22–23, she seeks enhanced reimbursement only for her lead counsel’s time in connection with trial due to her trial counsel’s specific experience and expertise in trying employment discrimination cases before a jury, as well as the particular demands associated with trial preparation and presentation in this case, as described supra in Part I. Seldon Decl. ¶ 48.[6]

Following a brief summary of this Court’s prior consideration of the relative merits of the competing Laffey-derived fee matrices, as well as recent D.C. Circuit precedent addressing the use of these matrices to calculate reasonable attorneys’ fees, the parties’ arguments addressing the plaintiff’s requested incremental fee award are considered in turn below.


For a number of years, Judges on this Court have struggled to identify a consistent approach to calculating reasonable attorneys’ fees for prevailing civil rights plaintiffs.[7] In particular, “[m]uch ink has been spilled . . . discussing the relative merits” of the two Laffey- derived fee matrices at issue here. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 80 F.Supp.3d 1, 3 (D.D.C. 2015) (collecting cases). While recent decisions by the D.C.

Circuit provide some guidance in resolving the instant dispute, these decisions also leave some uncertainty as to which Laffey-derived fee matrix should apply, if at all, to which types of civil rights cases. With this in mind, the discussion that follows summarizes this recent precedent before noting areas of remaining uncertainty in this Circuit’s jurisprudence governing the appropriate rate to apply in federal litigation to enforce federal civil rights statutes providing for payment of attorneys’ fees to prevailing plaintiffs.

1.Reasonable Reimbursement Rates Should be Consistent with Prevailing Market Rates for “Similar” Services

This Court discussed at length the relative merits of the USAO Laffey Matrix and the Salazar/LSI Matrix, in Eley v. District of Columbia, 999 F.Supp.2d 137 (D.D.C. 2013) vacated on other grounds, 793 F.3d 97 (D.C. Cir. 2015). There, the Court awarded attorneys’ fees based on the Salazar/LSI Matrix to a prevailing plaintiff under the fee-shifting provision of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. Id. at 168.

Comparing the USAO Laffey and Salazar/LSI matrices, the Court concluded: “The variation in the hourly legal billing rates reflected in the [two matrices] is due to two methodological differences: first, the USAO matrix and the LSI-adjusted matrix use as starting points billing rate surveys conducted at different times; and, second, in order to provide an approximation of current billing rates, an inflation adjustment derived from different parts of the CPI compiled by the Bureau of Labor Statistics is applied to the rate survey information.” Id. at 150 (citing Heller v. District of Columbia, 832 F.Supp.2d 32, 41 (D.D.C. 2011)).

To determine which matrix more accurately reflects the best estimate of the actual cost of legal services in the District of Columbia, the “question, therefore, is which assumption carries more logical force: (a) the assumption underlying the USAO matrix that the rate of increase in the cost of legal services in the Washington, D.C. area is generally the same as the costs for all other costs of goods and services in the area; or (b) the assumption underlying the LSI-adjusted matrix that the increase in the cost of legal services in the Washington, D.C. market generally matches the increases in those costs nationally.” Id. at 154. In light of evidence that the cost of legal services in the District tends to rise more quickly than the national average, this Court concluded that “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, ” and awarded fees based on the Salazar/LSI Matrix. Id.

Although this final fee award was later vacated by the D.C. Circuit, Eley, 793 F.3d at 105, the Circuit’s reasoning did not disturb this Court’s underlying analysis of the comparative strengths of the competing Laffey matrices. Instead, on appeal, the D.C. Circuit reiterated that Laffey-derived matrices, like other fee matrices, serve as a “‘useful starting point’ in calculating the prevailing market rate” for legal services in the District. Id. at 100 (quoting Covington, 57 F.3d at 1109). To demonstrate that a rate provided by such a matrix is reasonable in an individual case, however, the Court emphasized that a fee applicant must “produce satisfactory evidence-in addition to the attorney’s own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. (emphasis in original) (internal quotations and citation omitted). Such evidence may include, inter alia, “‘surveys to update [the applicable fee matrix]; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by courts or through settlement to attorneys with comparable qualifications handling similar cases.’” Id. at 101 (quoting Covington, 57 F.3d at 1109).

Under this evidentiary standard, the Eley Court found that the fee applicant failed to present sufficient additional evidence to demonstrate that the Salazar/LSI rate was reasonable in that case. In support of her requested rate, the Eley applicant presented evidence consisting of (1) a declaration from her attorney describing his extensive experience in litigating IDEA cases, for which he routinely charged paying clients at rates comparable to those supplied by the Salazar/LSI Matrix; and (2) a declaration from the economist who developed the Salazar/LSI Matrix and explained its various advantages as compared to the USAO Laffey Matrix and identified four decisions between 1995 and 2011 where this Court and another federal court used the Salazar/LSI Matrix to calculate reasonable fee awards. Id. at 102. According to the D.C. Circuit, however, “[a]bsent from her submission . . . [was] evidence that her ‘requested rates [were] in line with those prevailing in the community for similar services, ’ i.e., IDEA litigation.” Id. at 104 (emphasis in original) (quoting Covington, 57 F.3d at 1109). By contrast to the four cases identified by the plaintiff’s expert where the Salazar/LSI Matrix was used to calculate reasonable fee awards, the Circuit cited information supplied by the defendant District of Columbia identifying more than forty IDEA cases in which prevailing plaintiffs were reimbursed at hourly rates below those supplied by the USAO Laffey Matrix. Id. at 104.[8] Given this asserted disparity, the D.C. Circuit concluded that the plaintiff had not “met her burden of ‘justifying the reasonableness of the rates [she requested].’” Id. (quoting Covington, 57 F.3d at 1107). While the Eley Court rejected the application of the Salazar/LSI Matrix based on the evidence presented in that case, the Court expressly reserved judgment as to the applicability of either version of the Laffey Matrix to IDEA litigation and declined to opine on the relative merits of the competing Laffey-derived fee matrices more generally. Id. at 105.[9]

After the D.C. Circuit issued its decision in Eley, the parties were provided the opportunity to submit supplemental briefing addressing the relevance, if any, of the opinion to the issues raised in the instant petition. Minute Order, dated July 10, 2015. Both parties agreed that Eley bears significantly on the present dispute, but expressed opposite views of that decision’s impact. Seeking to distinguish Eley, the plaintiff argues that she has presented ample evidence that the USAO Laffey Matrix significantly underestimates the market rate for an attorney with the experience and expertise of her lead trial counsel. Pl.’s Supp. Mem. Supp. Pl.’s Pet. at 2, ECF No. 103. In light of this evidence, and because there is no dispute that the plaintiff’s Title VII action qualifies as “complex federal litigation, ” the plaintiff contends that Eley supports her request for an enhanced rate for a portion of her attorneys’ time. Id. at 2–15.

DOL, on the other hand, argues that, under Eley, the plaintiff failed to meet her burden of demonstrating that the enhanced reimbursement rate she requests is reasonable. Def.’s Supp. Briefing in Light of Eley Decision by the D.C. Circuit at 2, ECF No. 104. While stopping short of arguing that employment discrimination cases represent a lower-priced submarket of “complex federal litigation” in this locality, DOL contends that Eley “suggests that this Court should look to [prior] reported awards of attorney’s fees in employment discrimination cases” to guide its review of the plaintiff’s present motion. Id. at 2. In this regard, DOL points out that prevailing plaintiffs in two recent Title VII actions were reimbursed for attorneys’ fees at or below rates provided by the USOA Laffey Matrix. Id. at 2–3. In addition, DOL relies on its expert’s conclusion that the USAO Laffey Matrix tends to exceed the prevailing rates identified in a recent survey of all Washington-area attorneys. Id. at 3–6. Finally, DOL urges flat-out rejection of the plaintiff’s requested fees because Eley “effectively ends the use of the Salazar Matrix as persuasive evidence of market rates.” Id. at 8–10.

More recently, however, the D.C. Circuit confirmed that a fee award based on the more generous Salazar/LSI Matrix is reasonable, at least where the parties do not contest that the case involved “complex federal litigation.”

2. The Salazar/LSI Matrix More Closely Approximates the Prevailing Market Rate for Complex Federal Litigation in the District of Columbia

The Salazar/LSI Matrix arose originally from a successful class action, brought under 42 U.S.C. § 1983, challenging certain aspects of the District of Columbia Medicaid program. See Salazar, 123 F.Supp.2d at 9. As a result of this litigation, since 1999, the District has operated its Medicaid program pursuant to a settlement order under which the plaintiffs’ counsel is entitled to regular reimbursement for monitoring the District’s compliance. Id. at 10. This order was silent as to the applicable reimbursement rate, and the plaintiffs initially sought reimbursement at rates calculated by updating the original Laffey Matrix using the nationwide LSI. Id. at 13–14. The District countered in favor of reimbursement awards based on the USAO Laffey Matrix. Id. In a thorough and well-reasoned decision, Judge Gladys Kessler noted that the plaintiffs’ proposed LSI-adjusted rates were “generally consistent” with three surveys of Washington, D.C.-area attorneys and cited unrebutted expert evidence to conclude that the LSI is better suited to estimating prices in the legal industry than a more generalized measure of inflation used in the USAO Laffey Matrix. Id. at 14–15.

After declining to appeal two earlier fee awards based on these “enhanced” rates, the District recently challenged for the first time the reasonableness of these rates. Salazar, 809 F.3d at 63–64. Like the defendant agency here, the District did not dispute that the underlying litigation was sufficiently complex to merit reimbursement based on a Laffey Matrix. Id. at 64. Instead, the District renewed its earlier argument that the USAO Laffey Matrix, as opposed to the enhanced Salazar/LSI Matrix, supplied reasonable reimbursement rates for attorney efforts to monitor the District’s compliance with the longstanding settlement ...

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