12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Bd.

12 PERCENT LOGISTICS, INC., et al., Plaintiffs, v. UNIFIED CARRIER REGISTRATION PLAN BOARD, et al., Defendants.

Case No. 17-cv-02000 (APM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

December 9, 2020

MEMORANDUM OPINION

I.

On March 23, 2020, the court granted in part and denied in part Plaintiffs' Application and Motion for Attorneys' Fees, Costs, and Expenses Under the Sunshine Act. See 12 Percent Logistics, Inc. v. Unified Carrier Registration Plan Bd. (12 Percent I), Case No. 17-cv-2000, 2020 WL 1429904 (D.D.C. Mar. 23, 2020). The court held that Plaintiffs were entitled to an award of attorneys' fees and costs for their successful Sunshine Act claims, but found that Plaintiffs had not supplied sufficient evidence to support their specific fee request. See id. at *7-8. In particular, the court held that Plaintiffs had failed to justify the applicability of the hourly rates set forth in the Legal Services Index-adjusted Laffey Matrix ("LSI Laffey Matrix") and had not sufficiently identified the hours expended on tasks related to Plaintiffs' successful claims. See id. The court thus deferred fixing a final fee award and ordered Plaintiffs to submit additional support for their request. Id.

Now before the court is Plaintiffs' Response to that Order. See Pls.' Resp. to Ct.'s Order, ECF No. 132 [hereinafter Pls.' Resp.]. Plaintiffs seek an award of attorneys' fees, costs, and expenses of at least $415,236.29, depending on whether the court adopts the rates set forth in the LSI Laffey Matrix or the lower rates set forth in the USAO Matrix, which Plaintiffs offer as an alternative. See id. at 1. For the reasons explained below, the court applies the rates set forth in the USAO Matrix and orders Defendant to pay Plaintiffs $116,538.19 in attorneys' fees, costs, and expenses.

II.¹

The usual method for ascertaining a reasonable fee award under a fee-shifting statute like the Sunshine Act, see 5 U.S.C. § 552b(i), is to calculate the "lodestar," which is determined by multiplying "the hours reasonably expended in the litigation by a reasonable hourly fee," Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). Courts have broad discretion in determining an appropriate fee award and may modify the request based on the reasonableness of the requested amount and the facts of the case. Conservation Force v. Jewell, 160 F. Supp. 3d 194, 203 (D.D.C. 2016) (citing Judicial Watch, Inc. v. U.S. Dep't of Com., 470 F.3d 363, 369 (D.C. Cir. 2006)); see also Fenster v. Brown, 617 F.2d 740, 742 (D.C. Cir. 1979) (recognizing a court's considerable discretion in awarding attorneys' fees and costs). The moving party bears the burden of showing the reasonableness of its request. Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969-70 (D.C. Cir. 2004). That includes demonstrating the reasonableness of the hourly rate and the reasonableness of the number of hours expended. See Covington v. District of Columbia, 57 F.3d 1101, 1107-08 (D.C. Cir. 1995). Once the plaintiff has met this burden, the burden shifts to the defendant to rebut the presumption of reasonablenesswith "equally specific countervailing evidence." Id. at 1109 (quoting Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982)).

III.

The court first addresses the reasonableness of Plaintiffs' proposed hourly rates before turning to the reasonableness of the hours expended. The court concludes with an analysis of Plaintiffs' request for "fees on fees."

A. The Reasonableness of the Hourly Rate

To show the reasonableness of a requested hourly rate, a plaintiff must submit evidence related to: (1) "the attorneys' billing practices"; (2) "the attorneys' skill, experience, and reputation"; and (3) "the prevailing market rates in the relevant community." Covington, 57 F.3d at 1107. In the Memorandum Opinion and Order partially denying Plaintiffs' initial fees request (the "Fees Opinion"), the court found that Plaintiffs "founder[ed] on the first and third [of these] prongs." See 12 Percent I, 2020 WL 1429904, at *6. As for the first, the court noted that Plaintiffs "ha[d] produced no proof whatsoever," including in the declaration of Plaintiffs' lead attorney, James Bopp, Jr., "as to . . . counsel's billing practices." Id. And "Plaintiffs [] f[e]ll well short of carrying their burden with respect to the third criterion," the court found, because they had not either (1) shown "that the litigation in question f[ell] within the bounds of complex federal litigation, and therefore, the [LSI] Laffey Matrix rates presumptively appl[ied]," or (2) provided "evidence of the fees charged, and received, by litigators in cases brought under the fee-shifting statute in question." Id. (cleaned up). The court thus concluded that "Plaintiffs ha[d] not satisfied their burden to demonstrate the reasonableness of the requested billing rates," but afforded Plaintiffs the opportunity to submit additional evidence. Id. at *7.

The court now reexamines these factors in light of Plaintiffs' supplemental filing.

1. Attorneys' Billing Practices

The first criterion in establishing a reasonable hourly rate requires the fee applicant to show the rates that her attorney "customarily charges clients." Covington, 57 F.3d at 1103. The D.C. Circuit has opined that "an attorney's usual billing rate is presumptively the reasonable rate, provided that this rate is 'in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Kattan ex rel. Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum v. Stenson, 465 U.S. 894, 895-96 n.11 (1984)). The Circuit also has held that when "prevailing attorneys request rates which are greater than those they normally charge, the attorneys must offer some evidence that they charge reduced rates for public-spirited or non-economic reasons" to ensure that the fee-shifting provision is not being used to "subsidize attorneys who charge below-market rates because they cannot command anything more." Covington, 57 F.3d at 1107-08. Examination of Plaintiffs' counsels' billing practices is therefore necessary before this court can "determine whether the requested LSI Laffey Matrix rates are in line with counsel's usual rates, and if they are not, whether awarding those rates would represent a windfall." 12 Percent I, 2020 WL 1429904, at *6.

In support of their response to the Fees Opinion, Plaintiffs submit a second supplemental declaration from lead attorney James Bopp, Jr. See Pls.' Resp., Second Suppl. Decl. of James Bopp, Jr., ECF No. 132-3 [hereinafter Suppl. Bopp Decl.]. Mr. Bopp explains that the Bopp Law Firm ("BLF") "structures its rates in a variety of ways, including hourly rates, flat fees, contingency fees, and fee shifting work." Id. ¶ 5. According to Mr. Bopp, the fees in this case were structured "with BLF's national hourly billing rates, which are the rates that BLF regularly charges and receives for litigation supporting [its] core principles in the D.C. area." Id. He further explains that the national hourly billing rates for the seven attorneys involved in this litigation,reproduced in the chart below, "are comparable to the USAO Matrix rates," which Plaintiffs offer as an alternative to the LSI Laffey Matrix. Id.

Attorney Name

BLF National Hourly Rate

James Bopp, Jr.

$790.00

Jeffrey P. Gallant

$500.00

Anita Y. Milanovich

$485.00

Courtney E. Milbank

$340.00

Corrine L. Youngs

$340.00

Amanda L. Narog

$340.00

Melena Siebert

$300.00

Although BLF's national hourly rates are lower than the LSI Laffey Matrix rates that Plaintiffs request in the first instance, Plaintiffs explain the delta is attributable to the firm's "public spirited" mindset. See Pls.' Resp. at 8; see also Suppl. Bopp. Decl. ¶ 4 ("The rates that BLF charges for cases that support its core princip[les] are generally less than the rates that would be charged for similarly complex commercial work."). According to Mr. Bopp, the national hourly billing rates that BLF applied to this case "are the rates BLF regularly charges and receives for litigation supporting [its] core principles in the D.C. area." Suppl. Bopp. Decl. ¶ 5; see Pls.' Resp. at 10. Because the D.C. Circuit has warned against punishing attorneys who lower their rates for public-spirited reasons when applying a fee-shifting statute, see Covington, 57 F.3d at 1108, and because "BLF t[ook] the public benefit of [this] case into account when determining the rates it charge[d]," Pls.' Resp. at 8, 10, Plaintiffs argue that compensating their attorneys with the LSI Laffey Matrix rates would not "produce [a] windfall[]." Blum, 465 U.S. at 897 (internal quotation marks omitted).

Such a determination, however, relies primarily on consideration of the third reasonableness factor—the "prevailing market rates in the relevant community." Id. at 1107. That is, Plaintiffs must first show that this case is sufficiently complex to warrant application of the LSI Laffey Matrix before the court can consider Plaintiffs' plea not to discount their fees demand due to their "public-spirited" rates. See Reed v. District of Columbia, 843 F.3d 517, 521 (D.C. Cir. 2016) ("[T]he Laffey Matrix and subsequent revisions to this matrix apply only to 'complex federal litigation.'"); see also DL v. District of Columbia, 924 F.3d 585, 594 (D.C. Cir. 2019) (finding LSI Laffey Matrix presumptively applicable to "complex federal litigation"); Urb. Air Initiative, Inc. v. EPA, 442 F. Supp. 3d 301, 323 (D.D.C. 2020) (applying the USAO Matrix rates where plaintiffs had "not met their burden to show that it would be reasonable to apply the higher LSI adjusted Laffey Matrix rates"). The court now considers whether Plaintiffs have done so.

2. Prevailing Market Rates

To establish the prevailing market rate, "a fee applicant must produce satisfactory evidence—in addition to the attorney's own...