Court Gives Guidance on Reasonable Attorney Rates in Northern Virginia

Litigators in the Alexandria Division of the Eastern District of Virginia have often faced a dilemma when seeking attorney’s fees after successful litigation:  What is a reasonable hourly rate to charge for this area?  The $800 per hour and higher rates charged by large law firms in downtown Washington, DC, are generally thought to be inappropriate for Northern Virginia practice, while the hourly rates of Richmond, Virginia, are generally too low to compensate a client who has prevailed in the Alexandria Division.

In a recent decision, Judge Gerald Bruce Lee provided important and useful guidance to practitioners in the Alexandria Division.  In Taylor v. Republic Services, Inc., No. 1:12-cv-00523, Judge Lee issued a comprehensive opinion and order (available here) which granted a successful plaintiff over $500,000 in attorney’s fees.  While the facts of the case focused on employment discrimination, Judge Lee’s guidance is useful for any attorney who appears frequently in the Alexandria Division of the Eastern District.

Judge Lee began his analysis by determining “lodestar” figures and examined the twelve factors set forth in Johns v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).  He then examined the hourly rates charged by the multiple attorneys who worked on the plaintiff’s case.  Each attorney’s hourly rate varied by the number of years the attorney had been in practice.

Attorney Fees Requested

Importantly, Judge Lee found these hourly rates to be reasonable and acceptable for practice in Northern Virginia.  Thus, it appears that he focused on the number of years of experience of each attorney to justify a particular billing rate.  This provides important guidance to practitioners in the area.

Judge Lee briefly discussed the affidavits submitted in support of the reasonableness of the rates but did not linger there.  Instead, he moved on to discuss a table of rates developed by a prominent local attorney that had been adopted by the Court in two previous cases, Vienna Metro v. Pulte Home Corp., Case No. 1:10-cv-00502, and Tech Systems, Inc. v. Pyles, Case No. 1:12-cv-0034.  Referred to as the Vienna Metro Matrix, the table consisted of the following rates:

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Judge Lee referenced the Laffey Matrix of Washington-Baltimore area attorney rates that is periodically published by the U.S. Attorney’s Office for the District of Columbia, and then essentially rejected the Laffey Matrix in favor of the Vienna Metro Matrix.  The Laffey Matrix was “neither sufficient to show the reasonableness of an hourly rate nor [is it] controlling in this Court.”

Judge Lee’s analysis did not stop there, and while he found the hourly rates charged by the plaintiff’s attorneys to be reasonable, he ultimately applied a 50% across-the-board reduction to the plaintiff’s attorney fee recovery due to the plaintiff prevailing on only one of seven counts in the Complaint.  Despite the reduction, Judge Lee made clear that the reduction was due to limited success in the litigation and not due to the hourly rates charged by counsel.

Judge Lee’s opinion in Taylor is the third time that the so-called Vienna Metro Matrix has been adopted by the Alexandria Division of the Eastern District.  It is important reading for federal practitioners who face a dispute over attorney’s fees in litigation.

Latest EDVA Guidance on Reasonable Attorney Fees

Judge T.S. Ellis, III, of the Alexandria Division of the U.S. District Court for the Eastern District of Virginia has issued the latest guidance regarding reasonable attorney-fee rates in Northern Virginia.  In Am. Bird Conservancy v. U.S. Fish & Wildlife Serv., No. 1:13-cv-723, 2015 WL 3622459 (E.D. Va. June 9, 2015), Judge Ellis partially granted a plaintiff’s request for attorney fees in a FOIA action against the U.S. Fish and Wildlife Service.  While this statutory provision allowing the recovery of attorney’s fees is unique to FOIA, the process that Judge Ellis used to determine a fee award applies to a wide range of litigation involving other fee-shifting provisions, including civil and bankruptcy cases.

In this case, the plaintiff sued the U.S. Fish & Wildlife Service after waiting two years for an answer to the plaintiff’s appeal of a FOIA officer’s withholding of certain documents.  The plaintiff initially asserted claims to numerous withheld documents.  During discovery, the plaintiff’s claims were winnowed down as certain exemptions were either dropped by the Service or upheld by the Court.  At summary judgment, Judge Ellis ordered the Service to produce ten documents.

In his attorney-fee analysis, Judge Ellis first addressed a question common to civil attorney-fee cases:  Should the fee award be limited solely to those claims that were successful?  Or alternatively, should the fee award be based on the overall relief plaintiff obtained without regard to a parsing of successful claims versus unsuccessful claims?  Relying on Abshire v. Walls, 830 F.2d 127 (4th Cir. 1987), Judge Ellis adopted the latter approach and examined the overall relief recovered by the plaintiff, stating that it was clear “that plaintiff’s attorney’s fee petition must be considered in view of the overall relief plaintiff obtained in connection with the hours plaintiff reasonably expended” in the present litigation.

Judge Ellis noted that to do otherwise would ignore the realities of litigation:  “[A] FOIA plaintiff cannot know at the outset which documents are subject to exemptions and which are not and thus, the normal FOIA litigation process requires the plaintiff to request a broad swath of material, which will then be winnowed until the agency has released all nonexempt records.”

After the partially favorable ruling on summary judgment, the plaintiff filed a petition seeking $122,240 in attorney’s fees.  The plaintiff’s lead counsel, Eric Glitzenstein, a partner in a Washington, DC-based firm, sought an hourly rate of $510.  Virginia-based attorney Tammy Belinsky served as local counsel for the plaintiff at an hourly rate of $360.  Additionally, an associate attorney and a paralegal were billed at hourly rates of $250 and $145, respectively.

Judge Ellis took issue with the $510 hourly rate for plaintiff’s lead counsel.  The lead counsel defended the rate using the “Laffey Matrix” (a schedule of market rates in the Washington, DC area prepared by the Civil Division of the U.S. Attorney’s Office for the District of Columbia).  Judge Ellis rejected the use of the Laffey Matrix, stating that it “has little, if any, applicability in determining the prevailing market rates of attorneys in Northern Virginia.”  Judge Ellis also rejected an affidavit from Stephen L. Braga, a current law professor at the University of Virginia and an attorney with an office in Northern Virginia, who testified that the $510 hourly rate was reasonable in the Alexandria, Virginia market.  Calling this affidavit conclusory, Judge Ellis said the affidavit did not “override this Court’s long and extensive experience in this district that many capable and experienced attorneys litigate FOIA cases at rates far less than” $510 per hour.  Instead, Judge Ellis stated that “courts in this district have generally recognized rates of up to $420 per hour for partners and $250 to $300 per hour for associates” in FOIA cases.  Judge Ellis then cut the requested hourly rate from $510 to $400 for plaintiff’s lead counsel but approved the requested hourly rates of $360 for the local counsel, $250 for the associate, and $145 for the paralegal.

Once reasonable hourly rates were determine, the next step in Judge Ellis’s lodestar analysis was to determine the appropriate number of billed hours.  At the outset, Judge Ellis noted approvingly that plaintiff’s counsel had exercised some billing discretion and had proactively removed 55.3 hours of time from the requested fee amount.  This action seems to have garnered appreciation and some sympathy from the judge, who noted that “[o]n balance, the plaintiff’s submitted time entries are reasonable, although there are a number of time entries that contain vague task descriptions.”  Judge Ellis cut 10.5 hours from the fee award that, in his opinion, were not sufficiently described in the contemporaneous billing records:

  • 3.58 hours spent to “[d]raft letter to opposing counsel re Vaughn index” and “review borderline documents”
  • 1.17 hours spent to “review E.D. Va. case law”
  • 5.75 hours spent on “[a]dditional research on FOIA cases (govt failure to meet burden) and compile list of relevant quotations”

Judge Ellis stated that these were examples of “vague task descriptions that prevent a reliable determination of whether the hours expended on these tasks were reasonable,” and denied recovery for these hours.  The judge also cited the plaintiff for “lumping” several tasks together under a “single entry without adequately documenting the time spent on each task.”  As an example of impermissible “lumping,” Judge Ellis pointed to this entry:  “Revise motion for production of release of records and Vaughn index and send to clients; email local counsel re filing.”  To correct for this lumping, Judge Ellis performed an across-the-board reduction of plaintiff’s claimed hours by 5%.

Significantly, Judge Ellis awarded fees for time spent by plaintiff’s counsel to prepare the fee petition.  Quoting Am. Canoe Ass’n, Inc. v. U.S. E.P.A., 138 F.Supp.2d 722, 746 (E.D. Va. 2001), Judge Ellis stated that it is “well-settled that reasonable time and expenses preparing a fee petition are compensable” in an attorney’s fee award.

After these adjustments, Judge Ellis awarded the plaintiff $103,491.60 in attorney’s fees, a reduction of less than $20,000 off the amount initially claimed by the plaintiff.  Because attorney’s fee awards are routinely subjected to across-the-board reductions from the initial amount claimed, often by more than 5%, the plaintiff here did reasonably well – especially considering that time spent preparing the fee petition was also recoverable.

While this case focused on the FOIA statute, the analytical process that Judge Ellis used to determine an appropriate attorney fee award is applicable to other cases, including civil and bankruptcy cases.  This case offers the latest thinking by Judge Ellis on claims for attorney fees, along with a useful and detailed road map to successfully claiming such fees.

EDVA Allows Recovery of Attorney’s Fees under a Contract Despite No Request in Pleadings

Judge T.S. Ellis, III, recently issued a useful primer on how to collect attorney’s fees per a contractual provision after successful litigation. Judge Ellis addressed a number of issues that often frustrate successful litigants attempting to mitigate the high cost of prevailing in court, and this guidance is a useful road map to federal practitioners.

In Route Triple Seven Ltd. Partnership v. Total Hockey, Inc., No. 1:14-cv-30, 2015 WL 5123302 (E.D. Va. Aug. 28, 2015), the landlord of a strip mall in Loudoun County brought suit for breach of a lease against a tenant corporation that sold hockey equipment in a retail store. The tenant counterclaimed for failure by the landlord to provide certain tenant improvement allowances. Judge Ellis granted summary judgment for the defendant on the landlord’s breach of lease claims, which constituted the most substantial claims in the litigation, and at the same time, granted summary judgment to the plaintiff on the tenant’s single counterclaim.

The lease between the parties had a provision that granted attorney’s fees to the “substantially prevailing party” in any suit brought to enforce the lease, and after the summary judgment rulings, the tenant filed a petition for attorney’s fees.

Judge Ellis first grappled with the question of whether the tenant could even claim attorney’s fees in the litigation because it had never expressly demanded attorney’s fees in its pleadings. The landlord argued that, under Fed. R. Civ. P. 9(g), any item of special damages must be specifically pled. The landlord then turned to Atlantic Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 716 n. 4 (4th Cir. 1983), which held that a claim for attorney’s fees is a claim for special damages and triggers Rule 9(g). Thus, since the tenant never demanded attorney’s fees in its pleadings, the landlord argued, the tenant was out of luck.

Judge Ellis rejected this argument, holding that the tenant was still entitled to attorney’s fees even though it never claimed the fees in any pleading. Judge Ellis ruled that because the attorney’s fees claim was based upon a contract provision (as opposed to a statutory provision), the fees were not “special damages” that trigger Rule 9(g). Judge Ellis distinguished Atlantic Purchasers, Inc. by noting that in that case, the Fourth Circuit examined attorney’s fees that were awarded pursuant to a statute and not a contract. This was enough of a difference. As Judge Ellis said, “Put differently, attorney’s fees are special damages to which Rule 9(g) applies only when the substantive law requires that the prevailing party prove attorney’s fees as an element of damages; Rule 9(g) does not apply where, as here, attorney’s fees are sought as a recoverable cost pursuant to a contract.” (emphasis in original).

Judge Ellis allowed the attorney’s fees to be claimed as a recoverable cost under Fed. R. Civ. P. 54(d)(2)(A), which allows a successful litigant to make a motion for attorney’s fees. Judge Ellis was not moved by the landlord’s protestation that it was never on notice of the tenant’s claim, saying that the landlord was already on notice: “[W]hen attorney’s fees are sought as recoverable costs at the conclusion of a dispute pursuant to a contractual provision between the parties, notice by way of pleading is unnecessary because, as here, the contract itself provides notice.”

Judge Ellis also included a lengthy paragraph that focused on Fed. R. Civ. P. 54(c), which states that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” The judge said that allowing attorney’s fees in this case “comports” with the purpose of Rule 54(c), and the rule appears to be an alternate justification for the result in Judge Ellis’s opinion.

Judge Ellis next turned to the issue of whether the tenant qualified as the “substantially prevailing party.” Here, this seemed an easy decision for the judge, who first examined precedent from the Supreme Court of Virginia and then noted “that a substantially prevailing party need not succeed on every claim raised, but rather need only achieve significant success on a majority of issues in dispute.” Judge Ellis then went on to discuss the scorecard for the litigation:

Here, defendant is a substantially prevailing party because it won summary judgment on all three of plaintiffs breach-of-contract claims . . . These rulings . . . were the bulk of the matters in dispute. Although plaintiff won summary judgment on defendant’s counterclaim, this counterclaim was limited to one relatively small issue. Thus, there can be little doubt that defendant was awarded summary judgment on the vast majority of the significant issues in dispute.

Apparently having some fun with his opinion, Judge Ellis concluded, “[t]his result comports with the common sense intuition that a substantially prevailing party need not be a completely prevailing party. Indeed, to say the defendant did not substantially prevail in this dispute is to deny that the San Francisco Giants won the 2014 World Series because they won only four of the seven games.”

The useful guidance for federal practitioners does not end there in Judge Ellis’s opinion. In a subsequent blog post, we will examine the hourly rates approved by the judge, the judge’s criticism of the attorneys’ time entries, and what practitioners can learn from this opinion.