United States District Court, District of Columbia
A. Howell, Judge
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.
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.
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'
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."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.
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.
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)).
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). 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)).
‘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)).
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.
The Hours Billed by the Plaintiff's Attorneys are
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
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.
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.
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.
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."
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). 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 ...