Brackett v. Mayorkas

MEMORANDUM OPINION

JAMES E. BOASBERG, Chief Judge.

“In law,” satirist Samuel Butler observed, “nothing is certain but the expense.” Butler, unfortunately, was not quite right. In this employment dispute, the expenses, too, escape agreement. After a partial grant of summary judgment and half a year of negotiations, the Department of Homeland Security and Plaintiff Cindy Brackett have settled the latter's claim of disability discrimination. Because the parties cannot agree on the amount of legal expenses due, Brackett has returned to this Court with a Motion for Attorney's Fees. The Court will grant it, but with substantial reductions.

I. Background

The Court assumes familiarity with the facts underlying this dispute and summarizes them only briefly here. See Brackett v. Mayorkas, No. 17-988, 2021 WL 5711936, at *1-3 (D.D.C. Dec. 2, 2021) (describing facts). In 2015, Brackett filed two administrative complaints with her employer, a sub-agency within the Department of Homeland Security. See id. at *1, *3. She then filed this lawsuit against the Secretary in May 2017, alleging disability-based

discrimination and retaliation pursuant to the Rehabilitation Act. See id. at *3. The litigation did not kick off in earnest until two-and-a-half years later, when Brackett filed a Second Amended Complaint. Id. That pleading “allege[d] one count, unhelpfully broken into eleven subparts.” Id.

The Court granted Defendant's subsequent Motion for Summary Judgment, but only in part. It held that although Brackett's case pertained to a typically nonreviewable securityclassification decision, she had established a material dispute about whether the revocation of her clearance arose from deliberately false and retaliatory statements made against her. See id. at *4-5, *10. The Court found that several of Brackett's claims could move forward, including her allegations that DHS had improperly discriminated or retaliated against her when it suspended her security clearance and diminished her responsibilities. Id. at *9-10. It dismissed her remaining claims, including her “far from clear” claims that DHS had failed to reasonably accommodate her and had created a hostile work environment. See id. at *11-12.

After half a year of negotiations, the parties settled for $150,000 and on all but one issue: how much Defendant owed Brackett in attorney fees and costs. See ECF No. 84 (Order of Referral for Mediation); ECF No. 94 (Joint Status Report); ECF 100-8 (Settlement Agreement) at 1. Plaintiff now contends that she is owed $742,758, including for her legal team's work on this fee Motion. See ECF No. 100-1 (Pl. Mem. in Support of Mot. for Attorney's Fees) at 1; ECF No. 109 (Pl. First Supplement to Mot. for Attorney's Fees) at 4 (describing corrections to initial request and adding request for hours spent on this fee litigation). Defendant balks and describes why this request is unreasonable but stops short of proposing specific cuts. See ECF

Nos. 106 (Def. Opp.), 111 (Def. Opp. to Supp. Mot.).

II. Legal Standard

The parties agree that in this lawsuit brought under the Rehabilitation Act, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 29 U.S.C. § 794a(b); see Settlement Agreement, ¶ 6. “The usual method of calculating reasonable attorney[ ] fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar' amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). “The party seeking fees has the . . . burden of establishing the reasonableness of the fees requested” and must do so for “both the number of hours and the hourly rate.” Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec., 218 F.Supp.3d 27, 38, 47 (D.D.C. 2016). Supporting documentation, such as time records reflecting the work of each attorney, “must be of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004) (citation omitted). Courts maintain broad discretion to modify a requested fee award. See Conservation Force v. Jewell, 160 F.Supp.3d 194, 203 (D.D.C. 2016) (citing Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006)).

III. Analysis

Plaintiff seeks fees for four attorneys and six support staff from employment firm Melehy & Associates. See ECF No. 108 (Reply) at 3; Mot. at 2. The Court will begin with the most contentious issue: what billing rates to charge for the two most experienced attorneys Brackett employed. It will then turn to the reasonableness of the number of hours that her legal team

qexpended on this litigation, including on the merits and on this request for fees.

A. Appropriate Rates

The court is tasked with “fixing the prevailing hourly rate . . . with a fair degree of accuracy.” Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995) (internal quotation omitted). In determining that reasonable hourly rate, courts turn to what are known as the Covington factors: “(1) ‘the attorneys' billing practices'; (2) ‘the attorneys' skills, experience, and reputation'; and (3) ‘the prevailing market rates in the relevant community.'” Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015) (quoting Covington, 57 F.3d at 1107). Factor one is not so relevant here. Although Defendant cites in a footnote to the low billing rates in Plaintiff's retainer agreement, see Opp. at 13 n.6, courts do not look to that rate where, as here, a private attorney worked “at reduced rates reflecting noneconomic goals.” Covington, 57 F.3d at 1107; see ECF No. 100-3 (Declaration of Omar Vincent Melehy), ¶ 28 (describing discounted, contingency-based representation in this case). As for the second factor, Defendant does not contest, and the Court need not detail here, the skill, experience, and reputation of the attorneys that Brackett engaged. See Opp. at 11-22.

It is the third factor that looms large. To establish the prevailing market rate, “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.'” Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). In determining appropriate rates, courts in this district have often employed a schedule of hourly fees based on years of attorney experience, the first of which was developed in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), rev'd on other grounds, 746 F.2d 4 (D.C. Cir. 1984).

See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 142 F.Supp.3d 1, 16 (D.D.C. 2015).

The parties agree that this litigation is sufficiently complex that the relevant market rate can be determined by some updated version of the Laffey Matrix. See Mot. at 2; Opp. at 12-13; J.T. v. District of Columbia, No. 19-989, 2023 WL 355940, at *13 (D.D.C. Jan. 23, 2023) (“In its choice of alternative fee matrix, . . . defendant apparently concedes that the relevant market is that of complex federal litigation . . . .”); Salazar, 809 F.3d at 64 (finding defendant “acquiesce[ed] in the notion that the litigation at issue qualifies as complex federal litigation” when it proposed alternative USAO update to the Laffey Matrix). Both also agree that the appropriate rate for four members of the legal team is set by a spin-off of the Laffey Matrix that they call the Fitzpatrick Matrix, a model schedule of fees for complex federal litigation in D.C. that Professor Brian Fitzpatrick developed for the United States Attorney's Office for the District of Columbia. See Mot. at 2; Opp. at 12-13.

They diverge, however, when it comes to the remaining two attorneys - name partner Omar Vincent Melehy and associate Robert Porter. For them, Plaintiff turns to a different Laffey Matrix: the Legal Services Index (LSI) Matrix. That table sets the rate for Melehy at $997 per hour given his three-plus decades of experience and at $829 per hour for Porter given his ten-plus years of experience. See Mot. at 6. Defendant, on the other hand, maintains that the Fitzpatrick Matrix should set rates across the board, including for Melehy and Porter. See Opp. at 1, 7; ECF No. 100-9 (Fitzpatrick Matrix) at 1 (setting rates approximately $200 lower). The parties next disagree on whether current, inflation-adjusted or historical rates should apply, whichever matrix the Court selects. The Court will take those two rate-related disputes in turn.

1. Prevailing Market Rates for Melehy and Porter

As fee “matrices are somewhat crude, the matrix's proponent usually” should point to

additional evidence of the prevailing market rate, which can include “affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases [or] evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.” DL v. District of Columbia, 924 F.3d 585, 589 (D.C. Cir. 2019) (internal quotation marks omitted). Although the “initial burden to establish an hourly rate lies with the fee applicant, which can then be rebutted with other evidence by the counterparty,” when “both parties submit competing matrices, backed up by supporting affidavits and evidence, this framework functionally...