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Williams v. Johnson

United States District Court, District of Columbia

March 30, 2016

CHRISTINA CONYERS WILLIAMS, Plaintiff
v.
ROBERT JOHNSON, et al., Defendants

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY United States District Judge.

Plaintiff Christina Conyers Williams brought the claims in this action against the District of Columbia and other associated defendants under the District of Columbia Whistleblower Act and prevailed before this Court and on appeal.[1] After trial, a jury awarded Williams $300, 000 in compensatory damages, which were sustained by this Court and the United States Court of Appeals for the District of Columbia Circuit. In addition, in light of the judgment entered by this Court on the award of compensatory damages, the District of Columbia agreed to pay Williams $19, 609 in back and front pay, conditional on affirmance in the Court of Appeals. The pending motions for attorney’s fees and costs under the Whistleblower Act’s fee-shifting provisions constitute the final step in litigation that is now in its tenth year.

Before the Court are Plaintiff’s [225] Motion for the Award of Reasonable Attorney’s Fees and Costs and Plaintiff’s [239] Supplemental Motion for the Award of Reasonable Attorney’s Fees and Costs on Appeal and in Litigating Plaintiff’s Claim for the Award of Attorney’s Fees and Costs. Defendant does not contest Plaintiff’s eligibility for costs and fees. Nor does Defendant contest the litigation costs sought by Plaintiff. However, Defendant does contest the reasonableness of the amount of total fees that Plaintiff seeks, specifically contesting the hourly rates and the number of hours that are the bases for Plaintiff’s request. Defendant argues that Plaintiff should be awarded no more than $392, 164.17 in fees.

Upon consideration of the pleadings, [2] the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s [225] Motion and GRANTS IN PART and DENIES IN PART Plaintiff’s [239] Supplemental Motion. The Court concludes that it is appropriate to apply the currently applicable Laffey rates as updated by the United States Attorney’s Office to all of the fees at issue in this case (using counsel’s level of experience at the time of the work completed). The Court also concludes that certain discrete items for which Plaintiff seeks fees are not properly compensable in full and reduces or eliminates those requests. The Court also applies a percentage reduction to certain categories of tasks presented in the Supplemental Request. Accordingly, the Court GRANTS Plaintiff’s request as to $753, 876.34 in fees and $7, 467.72 in costs and awards those amounts; the Court otherwise DENIES Plaintiff’s request. This case is dismissed in its entirety.

I. BACKGROUND

The Court set out the background of this case at length in previous opinions. See, e.g., Williams v. Johnson, 870 F.Supp.2d 158, 16062 (D.D.C. 2012) (resolving rule 50(b) motion); Williams v. Johnson, 701 F.Supp.2d 1, 3-13 (D.D.C. 2010) (resolving motion for summary judgment); Wi l liams v. Johnson, 537 F.Supp.2d 141, 143-48 (D.D.C. 2008) (resolving motion to dismiss). So, too, did the United States Court of Appeals for the District of Columbia Circuit in the appeal of this Court’s judgment. See Williams v. Johnson, 776 F.3d 865, 867-70 (D.C. Cir. 2015). Accordingly, there is no need to present the factual background of this case prior to addressing the issues raised in the pending motions. Instead, the Court reserves presentation of the relevant background for the issues discussed b elow.

II. LEGAL STANDARD

“An employee aggrieved by a violation of § 1-615.53 [the D.C. Whistleblower Act] may bring a civil action against the District.” D.C. Code. § 1-615.54(a)(1) (2016); see also Id. § 2-223.03(a).[3] Through such an action, a plaintiff may seek various remedies, including compensatory damages, back pay, and “[r]easonable costs and attorney fees.” Id. § 1-615.54(a)(1)(A)-(G). “Reasonable costs and attorney fees” are available only to a party who prevails on a Whistleblower Protection Act claim. D.C. v. Poindexter, 104 A.3d 848, 851 n.1 (D.C. 2014); see also Crawford v. D.C., 891 A.2d 216, 222 (D.C. 2006) (quoting trial judge opinion) (“The plainest reading of the statute, consistent with common sense, is that all the relief is available where Plaintiff prevails, and none is available when he does not.”)). As the District of Columbia Court of Appeals has stated with respect to fee-shifting statutes, “it is important that attorneys who are willing to take on civil rights and other public interest work are adequately compensated, or it will be difficult to find competent counsel to handle this important job.” Lively v. Flexible Packaging Ass’n, 930 A.3d 984, 988 (D.C. 2007). “The goal is to attract competent counsel for these cases, but not to provide them with windfalls.” Id. (citing cases). When awarding attorney’s fees and costs under a District of Columbia statute, as here, this Court must apply these principles.

III. DISCUSSION

In order to determine reasonable attorney’s fees to award, the Court must address (1) the applicable hourly rates for the attorneys involved in the case, (2) the total numbers of hours for which compensation is reasonable, and (3) whether there is any basis for further reductions in the fees awarded in light of this case. Notably, the District of Columbia does not contest that fees are warranted in the first instance. However, the District contests the applicable hourly rates and the total number of hours on which Plaintiff’s request is based and argues that the total fee award should be further reduced. The Court addresses each factor, in turn. Finally, the Court concludes by addressing the litigation costs that Plaintiff requests, which are uncontested.

A. Hourly Rates

In Plaintiff’s original [225] Motion for fees, Plaintiff requested fees covering the period from the beginning of this controversy through August 31, 2012. That motion covers fees for all proceedings through the trial on the merits, as well as post-trial motions in this Court and the earliest phase of appellate proceedings.[4] Through that motion, Plaintiff requested fees calculated according to the hourly rates listed in the annual update of the Laffey matrix produced by the United States Attorney’s Office for the District of Columbia, which is adjusted annually for inflation. Specifically, Plaintiff requested fees according to the Laffey matrix for June 2012 through May 2013, which was current as of the filing of that motion (September 4, 2012). Through Plaintiff’s [239] Supplemental Motion, Plaintiff requested fees for the period from September 1, 2012, through the filing of that motion. The supplemental motion covers fees for the proceedings on appeal, as well as the litigation of these requests for fees. For this latter period, Plaintiff requests fees pursuant to the Laffey matrix as updated to account for inflation pursuant to the Legal Services Index of the Bureau of Labor Statistics (“LSI”).[5] Plaintiff does not, now, request fees for the earlier period pursuant to this LSI version of the Laffey matrix.

In short, Plaintiff now requests fees for the first period (through August 31, 2012) pursuant to the current USAO Laffey matrix, which is now the 2015-2016 matrix. For the second period, Plaintiff requests fees pursuant to the current version of the LSI Laffey matrix. For each of those periods, Plaintiff requests fees for attorneys according to their experience at the time of the work itself. In response, Defendant argues that the USAO Laffey matrix should be used for the entire time at issue, not merely for the earlier period. Defendant also argues that the Court should award fees based on the Laffey rates in effect at the various times when work was done rather than based on the current Laffey matrix, i.e., using the 2006-2007 Laffey matrix for time expended during that time period.

The Court first addresses the parties’ dispute regarding whether current or historical rates should be used for work done during prior time periods, bracketing for the moment the question of whether the Court should use the LSI Laffey matrix for a portion of the fees requested. The D.C. Court of Appeals has stated regarded another fee shifting statute that current hourly rates, not historical rates, should be used. See Lively, 930 A.2d at 989-91 (“Indeed, the adjustment for inflation by the use of current hourly rates, rather than the historic rates of the relevant legal community, has been recognized as a means of ‘approximat[ing] the value today of the historic rates charged at the time when the legal services actually were rendered.’ ” (quoting Murray v. Weinberger, 741 F.2d 1423, 1433 (D.C. Cir. 1984))); id. at 990-91 (trial court did not “abuse[] its discretion in using ‘the current rates applicable to each level of experience the individual lawyers had attained when the work for which compensation is sought was performed.’ ” (quoting Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984))). As Plaintiff seeks fees solely under D.C. law, these instructions from the D.C. Court of Appeals govern this Court’s task in assessing fees. Moreover, as explained by the D.C. Court of Appeals, this conclusion is sensible because an attorney is deprived of the fees during the pendency of the litigation. Given that period of deprivation, using current Laffey rates properly accounts for the impact of inflation on the fees earned.

Defendant’s citation of the D.C. Court of Appeals decision in Lively for the contrary position, that historical rates should be used, is simply without basis. As cited by Defendant, the Lively court definitively stated that historical levels of experience should be used, together with current hourly rates.[6] See 930 A.2d 989-90. Indeed, that is precisely what Plaintiffs here request. Unlike the plaintiffs in Lively, Plaintiff here seeks fees pursuant to historical levels of experience as mandated by the D.C. Court of Appeals. The Court notes that these conclusions are independent of the question of whether the USAO Laffey matrix or the LSI Laffey matrix should be used; either way the Court would use current hourly rates as applied to historical levels of experience.

Before turning to the parties’ dispute about whether a portion of the fees should be awarded pursuant to the LSI Laffey matrix, the Court addresses the actual rates that will be used in awarding fees. A minor complication arises because the levels of experience used by the USAO Laffey matrix through the 2014-2015 matrix differ from those used in the current matrix, for 2015-2016. Specifically, like previous annual matrix updates, the 2014-2015 USAO Laffey matrix divided attorney experience into categories that include, as relevant here, 11-19 years and 20 years. With respect to these categories, there is no dispute that Attorney Karl’s experience during the entirety of this litigation fell into the 20 category, as did attorney Shaw’s experience. Similarly, there is no dispute that attorney Hughes fell into the 11-19 years category for all of the years of this litigation in which she worked. With respect to these categories, each attorney remained in the same Laffey category throughout the period in which each conducted work in this case. That result substantially simplifies the calculations necessary to determine the overall fee award because it means that the same hourly rate would be applied to all of the work an individual attorney conducted throughout this litigation.

However, a further calculation is needed because 2015-2016 USAO Laffey matrix adopts a more refined set of categories, with fewer years in each one. In addition to adopting a new measure of inflation as the basis for the yearly updates, which the Court discusses below, the U.S. Attorney’s Office now divides the levels of experience in additional levels of experience See USAO Attorney’s Fees Matrix – 2015–2016, n.5, available at https://www.justice.gov/usao-dc/civil-division (last visited March 24, 2016). Specifically, the new USAO Laffey matrix includes the following categories: 11-15 years; 16-20 years; 21-30 years; and 30 years. While Plaintiff filed a Notice attaching the 2015-2016 USAO Laffey matrix, see ECF Nos. 257-58, Plaintiff never enumerated the levels of experience, according to the new categories, that would apply to the earlier requested fees. The Court concludes that the fairest and most efficient way to calculate current hourly rates without additional information on the years of experience is to inflate the 2014-2015 Laffey rates for the experience levels used by that matrix by the Producer Price Index-Office of Lawyers (“PPI-OL”) index now used by the U.S. Attorney’s office. Pursuant to the PPI-OL, the rate of inflation between May 2014 (used for the 2014-2015 matrix) and May 2015 (used for the 2015-2016 matrix) was 1.0283, or an annual price increase of 2.83%.[7] Insofar as the Court uses the USAO Laffey matrix, The Court will apply this level of inflation to the rates listed in the 2014-2015 matrix. Specifically, the rate for 11-19 years in the 2014-2015 matrix was $460/hour. For that bracket, which includes all of the hours billed by Hughes, the Court will impute a rate of $473 (that is, $460 * 1.0283).[8] Similarly, the rate for 20 years in the 2014-2015 matrix was $520/hour. The Court will impute a rate of $535/hour for the time Karl and Shaw have billed (that is, $520 * 1.0283).

The Court now turns to the major remaining dispute regarding the hourly rates to be applied: whether application of the LSI Laffey matrix is warranted for the fees requested through Plaintiff’s Supplemental Motion, which covers the period from September 1, 2012 through the present. In Plaintiff’s Supplemental Motion, Plaintiff’s primary argument in favor of the application of the higher LSI Laffey rate is that it is a better reflection of the “market for attorneys engaged in complex litigation.” Pl.’s Supp. Mot. at 20. In Plaintiff’s reply, she further contends that the LSI Laffey rates are warranted for an additional reason for post-September 2012 fees: those fees primarily encompass appellate work and such work is “inherently more complex than legal work performed at the trial court level.” Pl.’s Reply at 2. The Court first notes that Plaintiff never raised this argument prior to her reply-not even implicitly in her Supplemental Motion-and the Court could simply consider it waived. In addition, in making this argument, Plaintiff fails to acknowledge that she is also requesting the LSI Laffey rates for more than 50 hours of work on the fees motions themselves. Plaintiff never argues, let alone convincingly shows, that such fees work is more complex than other work conducted at the trial level. If anything, it would appear to be that the contrary is true. Nor does Plaintiff convincingly show that the appellate work in this case was more complex than the trial work in this case. Plaintiff does not attempt to do so, and the Court emphasizes that it appears, based on the parties’ representations, that the issues raised on appeal in this case were primarily, if not entirely, those raised by the parties before this Court in the first instance. Plaintiff has provided no support for the claim that the mere fact of arguing to this Court’s colleagues on the Court of Appeals requires a level of experience and sophistication unnecessary to proceedings in this Court. It is irrelevant whether some appellate work is more complex than some trial work; that is undoubtedly true. But Plaintiff provides no support for her bald statement that appellate work is more complex than trial work, and the Court sees no reason to accept that proposition as a general matter. The Court therefore rejects Plaintiff’s argument that the higher LSI Laffey rates are more appropriate for the fees accrued after September 2012 in light of the nature of the work conducted in that period of time. With that said, the Court turns to Plaintiff’s primary argument that the LSI Laffey rates are simply a better reflection of the complex work involved in this litigation.

As a prefatory matter, the Court notes that Plaintiff represented in her original motion that the USAO Laffey rates were appropriate for this litigation. Defendant argues, in part, that Plaintiff is essentially estopped from seeking the LSI Laffey rates given her prior argument in favor of the appropriateness of the USAO Laffey rates. Indeed, as Defendant points out, this Court previously came to such a conclusion in other fees litigation. See Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 66 F.Supp.3d 134, 155 (D.D.C. 2014) (“Given CREW's failure to request the CPI Laffey Matrix's application to the instant matter at any time prior to the filing of its response in March 2014 and CREW’s prior, uncontested assertion that the USAO Laffey Matrix is applicable in this case, the Court shall apply the USAO Laffey Matrix to CREW’s request for additional attorney fees.”). The Court considers Plaintiff’s previous position significant. However, the Court will not end the inquiry with Plaintiff’s prior representation and will consider her arguments in favor of the LSI Laffey matrix. Nonetheless, as explained below, the Court concludes that Plaintiff has not borne her burden of demonstrating the appropriateness of the LSI Laffey rates in this case.

With respect to Federal fee shifting statutes, “[t]he ‘fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates’ and the opposing party remains ‘free to rebut a fee claim.’ ” Eley v. Dist. of Columbia, 793 F.3d 97, 98 (D.C. Cir. 2015) (quoting Covington v. Dist. of Columbia, 57 F.3d 1101, 1107-08 (D.C. Cir. 1995)). The D.C. Court of Appeals has adopted similar reasoning. See Lively, 930 A.3d at 993 (It is “ ‘counsel’s burden to prove and establish the reasonableness of each dollar, each hour, above zero.’ ” (quoting Bratcher v. Bray-Doyle Independent School Dist., 8 F.3d 722, 725 (10th Cir. 1993))). The Court concludes that Plaintiff has not shown that the LSI Laffey rates are reasonable in these circumstances.

For this case under a District of Columbia fee-shifting statute, it is important, albeit not dispositive, that there is no case in which the D.C. Court of Appeals has approved of the use of the LSI Laffey matrix.[9] Similarly, Plaintiff has not identified any case in which the LSI Laffey matrix was applied to a District of Columbia fee-shifting statute. That absence is notable, if still not dispositive. Moreover, the D.C. Court of Appeals has recently discussed the benefits of using the USAO Laffey matrix as the basis for fee awards based on D.C. law. See Tenants of 710 Jefferson St., N.W. v. D.C. Rental Hous. Comm’n, 123 A.3d 170, 184 (D.C. 2015) (“[T]he Laffey Matrix is a very good place to start, and, we would add, in most cases will be the best place to end lest litigation over attorney’s fees overshadow the underlying case. Deviations from the Laffey Matrix’s presumptively reasonable measure should not be lightly undertaken and need to be substantially supported.”). Lest there be any lack of clarity: the D.C. Court of Appeals was discussing the USAO update to the Laffey matrix, not the LSI Laffey matrix. The Court will hew to that court’s guidance that the USAO Laffey matrix is presumptively reasonable, as it must in this case under a D.C. fee-shifting statute. The Court concludes that Plaintiff has simply not provided evidence that would support the reasonableness of the LSI Laffey rates in this case.

Notably, Plaintiff does not indicate anything regarding litigation under the Whistleblower Protection Act that establishes it as a particularly complex category of litigation. This is not a case with national significance. Nor is it a case under Federal law or involving significant numbers of plaintiffs. Cf. Salazar ex rel. Salazar v. D.C., 809 F.3d 58, 60 (D.C. Cir. 2015) (holding that district court did not abuse its discretion in awarding fees based on LSI Laffey matrices in Medicaid class action under 28 U.S.C. § 1983). The Court emphasizes that neither the length of a case itself nor the number of opinions issued by the Court is itself a measure of the complexity of the case. Those facts may reveal how vigorously the parties contested various issues presented. Moreover, the length of the case and number of opinions will likely be reflected in the amount of work conducted by the attorneys. In other words, in a case with a long duration, with numerous motions, it is not surprising if numerous attorney hours are required. Accordingly, insofar as such factors indicate more attorney services that warrant compensation, the appropriateness of such compensation will be reflected in the number of hours that are the basis for a fees request. Indeed, in this case Plaintiff’s request for fees is based on approximately 1, 892 hours of attorney time. For all of these reasons, it is important that the Court’s assessment of appropriate legal fees begins rather than ends with a determination of the properly hourly rates. As the next step in the inquiry, the Court is required to assess the hours requested, and it does so below. But with respect to the hourly rate itself, the Court concludes that the mere fact of a fiercely disputed case that unfolds over a significant period of time-as this one has-does not itself justify the higher LSI Laffey rates.

The Court need not address this issue further. For the purposes of this motion, the Court need only decide that Plaintiff have not borne their burden of showing that the LSI Laffey rates are reasonable for the type of litigation involved in this case. The Court concludes that they have not done so and will therefore not award fees in this case based on the LSI Laffey matrix. Instead, the Court will use the currently applicable USAO Laffey rates, as calculated above.

In light of that conclusion and pursuant to the above analysis of the 2014-2015 and 2015-2016 USAO Laffey matrices, the Court will apply the following hourly rates to the work by Plaintiff’s attorneys for all of the work in which they engaged over the course of this litigation:

• John F. Karl: $535/hour.
• Peggy Shaw: $535/hour.
• Kristen Grim Hughes: $473/hour.

With that established, the Court turns to the number of hours that are the basis for Plaintiff’s ...


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