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Young v. Sarles

United States District Court, District of Columbia

July 11, 2016

ALEX YOUNG, Plaintiff,
v.
RICHARD SARLES, General Manager, Washington Metropolitan Area Transit Authority Defendant.

          MEMORANDUM OPINION

          Beryl A. Howell, Judge

         The plaintiff, Alex Young, successfully sought a permanent injunction barring the defendant, the Washington Metropolitan Area Transit Authority ("WMATA"), from interfering with his practice of performing music in the vicinity of WMATA station entrances and accepting donations from passersby, a practice referred to as "busking." Having prevailed in his effort to vindicate his rights under the First Amendment, the plaintiff has sought reimbursement, pursuant to 42 U.S.C. § 1988, of attorneys' fees and litigation costs he incurred in pursuing both his underlying claim and his present request for attorneys' fees. While WMATA does not dispute that the plaintiff is entitled to reimbursement of reasonably incurred fees, the parties dispute the rate at which the plaintiff must be reimbursed, as well as the degree to which certain hours for which the plaintiff seeks reimbursement were reasonably billed. As such, pending before the Court is the plaintiffs motion for attorneys' fees and costs. Pl.'s Mot. Att'ys.' Fees & Costs, ECF No. 23. For the reasons set forth below, the plaintiffs motion is granted in part and denied in part.

         I. BACKGROUND

         The present fee petition arises out of the plaintiffs challenge to a WMATA regulation prohibiting commercial activity on WMATA station grounds and premises. See generally Compl., ECF No. 1. Contending that this regulation unconstitutionally infringed upon his First Amendment right of expression, the plaintiff sought a preliminary injunction barring enforcement of the regulation as applied to his practice of busking outside of various WMATA stations. Id. Following a hearing to consider the merits of the plaintiffs claim, the Court granted the plaintiffs request and preliminarily enjoined WMATA from enforcing the offending regulation to prevent the plaintiff from busking on certain "free" areas on WMATA property. See Order Granting Prelim. Inj. Relief, ECF No. 13. Thereafter, the Court granted, as conceded, the plaintiffs subsequent motion for summary judgment and converted the preliminary injunction to a permanent injunction. Minute Order, dated Feb. 24, 2015.

         With the merits of the plaintiffs action against WMATA thus resolved, the plaintiff now seeks reimbursement of the attorneys' fees and litigation costs he incurred in litigating his successful First Amendment claim. Specifically, the plaintiff requests reimbursement, pursuant to 42 U.S.C. § 1988, for fees billed by three attorneys who together litigated the plaintiffs underlying claim. The plaintiff was represented first in this matter by a Staff Attorney for the Rutherford Institute, a nonprofit organization that provides legal assistance on a variety of civil liberties matters. This Staff Attorney drafted an initial demand letter to WMATA asserting the plaintiffs First Amendment right to perform unimpeded on certain WMATA property. Pl.'s Mem. Supp. Mot. Att'ys' Fees & Costs ("Pl.'s Mem.") at 3-4, ECF No. 23; Decl. Douglas R. McKusick (Apr. 17, 2015) ("McKusick Decl.") ¶ 3, ECF No. 23-5. After WMATA rejected the plaintiffs request to refrain from enforcing its regulations against him, the Staff Attorney engaged two "Participating Attorneys, " each of whom is a solo practitioner licensed to practice in the District of Columbia. Pl.'s Mem. at 4-5; Fee Aff. Jeffrey L. Light (Arp. 18, 2015) ("Light Aff.") ¶¶ 2-3, ECF No. 23-1; Fee Aff. Sean R. Day (Arp. 17, 2015) ("Day Aff.") ¶¶ 2, 5, ECF No. 23-3. These Participating Attorneys prepared the plaintiff's submissions before this Court in support of his First Amendment claim and subsequent request for attorneys' fees. Id.

         In total, the plaintiff initially sought reimbursement of $38, 344.40 in attorneys' fees and costs, which included $29, 317.30 stemming from the 43.9 his attorneys billed litigating the merits of his underlying claim, $3, 799.00 for 5.8 hours his attorneys devoted to preparing the instant fee request, and $5, 228.10 for 7.9 hours billed in connection with the plaintiff's reply in support of his fee request. Pl.'s Mem. at 7-8; Pl.'s Reply Supp. Mot. Att'ys.' Fees & Costs ("Pl.'s Reply") at 1, ECF No. 28. To arrive at his requested fee award, the plaintiff proposes a reimbursement rate for each of his attorneys based on figures provided by the "[a]djusted ([u]pdated)" Laffey fee matrix, which the Court refers to below as the "LSI/Salazar Matrix."[1]Under this matrix, based on the number of years each of his attorneys has practiced, the plaintiff originally requested reimbursement for the 4.6 hours billed by his public interest attorney at an hourly rate of $789.00 and, for the 53 hours billed by the two Participating Attorneys, who prepared and filed his submissions in this Court, at an hourly rate of $655.00. Id.

         During the course of briefing the present petition, the plaintiff subsequently revised his request to include the additional hours his attorneys' billed in connection with the ongoing fee litigation and reflect the rates provided by the current LSI/Salazar Matrix for his attorneys' current levels of experience. See Pl.'s Mem. at 8; Pl.'s Reply at 8-10; Pl.'s Supp. Mats. Supp. Mot. Att'ys.' Fees & Costs ("Pl.'s Supp."), Ex. 10 (Updated Time Sheets), ECF No. 33-12. As a result of these revisions, the plaintiff's final requested award totals $50, 515.50, including: (1) 4.6 hours billed by his public interest attorney, at an hourly rate of $796.00; (2) 15.8 hours billed by his senior Participating Attorney, also at an hourly rate of $796.00; (3) 51.1 hours billed by his junior Participating Attorney, at an hourly rate of $661.00; and (4) $500 in litigation costs. Id.

         II. LEGAL STANDARD

         Under the general federal fee-shifting provision, courts may award "a reasonable attorneys' fee" to prevailing private parties in any action or proceeding to enforce a wide variety of federal civil rights statutes. 42 U.S.C. § 1988(b). In principle, "[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)).

         The D.C. Circuit has developed a three-part analysis for assessing whether a requested fee award is reasonable in a particular case. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015). "First, the court must determine the number of hours reasonably expended in litigation. Second, it must set the reasonable hourly rate. Finally, it must determine whether use of a multiplier is warranted." Id. (internal citations and quotations omitted).[2] With regard to the proposed hourly rate, the Court considers three sub-elements: "(1) ‘the attorney['s] billing practices;' (2) ‘the attorney['s] skills, experience, and reputation;' and (3) ‘the prevailing market rates in the relevant community.'" Id. (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107 (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 requested 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)).

         III. DISCUSSION

         Opposing the present fee petition, WMATA does not dispute that the plaintiff, having obtained his requested injunctive relief, is entitled to reimbursement of reasonable attorneys' fees. Def.'s Opp'n Pl.'s Mot. Att'ys.' Fees & Costs ("Def.'s Opp'n") at 1, ECF No. 26. Nonetheless, WMATA challenges both the reasonableness of certain hours billed by the plaintiff's attorneys, as well as the rate at which the plaintiff will be reimbursed for his attorneys' time. Id. The discussion that follows addresses each of these objections in turn, beginning with a determination of the number of hours reasonably billed by the plaintiff's attorneys before turning to consideration of the appropriate rate at which these hours should be reimbursed.

         A. The Hours Billed by the Plaintiff's Attorneys are Reasonable

         WMATA contests two categories of hours billed by the plaintiff's attorneys in connection with his successful First Amendment action. As explained below, however, WMATA fails to demonstrate that either category of hours was unreasonably billed.

         First, WMATA takes issue with the plaintiff's request for reimbursement for his public interest attorney's pre-litigation efforts to resolve the plaintiff's objection to the challenged WMATA regulation. In particular, WMATA objects to full reimbursement under the LSI/Salazar Matrix for 4.1 hours this attorney billed to research and compose the plaintiff's initial demand letter to WMATA. Id. at 3. According to WMATA, reimbursement at this attorney's LSI/Salazar rate, which yields a total award of $3, 195.45, is "on its face unreasonable." Id. Contending that this work "could have been performed by a law clerk or an attorney at a much lower rate, " WMATA asks the Court to reimburse the plaintiff at an hourly rate not to exceed $370.00. Id.

         At the outset, while styled as a challenge to reasonableness of these hours, WMATA's objection more directly targets the rate at which the plaintiff will be reimbursed for his public interest attorney's efforts. In any event, as the plaintiff explains, this attorney drew upon his expertise in First Amendment jurisprudence to research and compose the plaintiff's initial demand letter. Pl.'s Reply at 5-6. While these tasks certainly could have been completed by a more junior attorney, it strains credibility to suggest that an attorney lacking similar expertise and experience would compose a letter of similar quality in four hours. Further, WMATA offers no support for its suggestion that the preparation of the plaintiff's demand letter must be reimbursed differently than this attorney's subsequent efforts before this Court. See generally Def.'s Opp'n. Finally, WMATA provides no basis for capping the plaintiff's reimbursement for these hours at a rate of $370.00, which corresponds to the rate WMATA proposes for one of the Participating Attorneys, who later assisted in preparing the plaintiff's submissions before this Court. Id. at 3.

         Absent any authority suggesting that the plaintiff's public interest attorney must be compensated at a reduced rate, and no more generously than his less experienced co-counsel, for his initial efforts on the plaintiff's behalf, the Court declines WMATA's invitation to impose such a cap. Moreover, to the extent that WMATA contests the number of hours devoted to the preparation of the plaintiff's initial demand letter, the Court agrees with the plaintiff that the 4.1 hours billed by the plaintiff's public interest attorney to prepare the four-page letter, see Pl.'s Mot. Prelim. Inj., Ex. 2 (Ltr. from Douglas R. McKusick to Ronald Pavlik, dated Dec. 16, 2013), ECF No. 2-2, were reasonable.

         WMATA's second challenge more directly addresses the reasonableness of the hours billed by the plaintiff's attorneys. In particular, WMATA challenges the plaintiff's request for reimbursement for 7.4 hours billed by one of the Participating Attorneys in connection with his submission in support of his Motion for Summary Judgment, ECF No. 17. Def.'s Opp'n at 4. According to WMATA, the "substance" of the plaintiff's complaint and motion for a preliminary injunction was "in large part incorporated wholesale" into the plaintiff's later submission requesting summary judgment on his First Amendment claim. Id. In support, WMATA highlights four pages of the plaintiff's memorandum in support of his summary judgment motion, which are largely identical to language included in the plaintiff's prior motion for a preliminary injunction. Id. (citing Pl.'s Mem. Supp. Mot. Summ. J. ("Pl.'s Summ. J. Mem.") at 13-17, ECF No. 17). Apparently contending that all hours billed in connection with this filing were unreasonable, WMATA opposes reimbursement of any fees incurred in the "drafting the memorandum in support of [the plaintiff's] motion for summary judgment." Id.

         As an initial matter, while WMATA is correct that certain arguments advanced by the plaintiff in support of his motion for summary judgment track closely those set out in his earlier request for a preliminary injunction, these similarities are largely understandable. Indeed, the plaintiff's motion for summary judgment was filed less than two months after the Court granted his initial request for a preliminary injunction, with the plaintiff forgoing formal discovery before seeking a permanent injunction. See Minute Order, dated Aug. 14, 2014; Pl's Summ. J. Mem. (filed Oct. 7, 2014).[3] The resulting submission spanned twenty-two pages and included the aforementioned brief, as well as a draft order and statement of undisputed material facts, as required under the Court's local rules. See LCvR 7(c), (h)(1). WMATA apparently does ...


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