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.