[00:00:03] Speaker 00:
Case number 13-7196, Wilma Eli versus District of Columbia appellant.

[00:00:09] Speaker 00:
Mr. Love for the appellant, Ms.

[00:00:11] Speaker 00:
Satyarika for the appellate.

[00:00:40] Speaker 01:
Let's wait until the courtroom clears.

[00:00:56] Speaker 01:
All right.

[00:00:59] Speaker 01:
Mr. Love, good morning.

[00:01:00] Speaker 05:
Good morning.

[00:01:01] Speaker 05:
May it please the Court, Richard Love for the District of Columbia.

[00:01:04] Speaker 05:
I would ask for three minutes for rebuttal.

[00:01:07] Speaker 05:
In light of the significantly lower rates that are awarded in the large number of IDEA cases identified in this record, the enhanced Laffey rate of $625 an hour is not required to attract competent counsel, and the enhanced Laffey matrix is not a reasonable measure of market rates in IDEA cases.

[00:01:30] Speaker 05:
If you look under either the applicable case authority, if you look under IDEA,

[00:01:37] Speaker 05:
And if you look under the facts of the case, either individually and certainly in totality, it's clear that Ms.

[00:01:47] Speaker 05:
Ely was required but failed to produce evidence that the rate she requested was in line with the prevailing district rate for idea cases and necessary to attract competent counsel.

[00:02:00] Speaker 05:
This court, for example, under applicable case authority, this court and National Association of Concerned Veterans versus the Secretary of Defense required fee applicants, and I quote, to provide specific evidence of the prevailing community rate for the type of work for which a fee award is sought.

[00:02:22] Speaker 05:
There's no dispute the type of work here is ideal litigation services.

[00:02:27] Speaker 05:
If you look under IDEA, it's a very specialized statute.

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It requires a number of procedural requirements.

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And it authorizes district courts in its discretion to award fees to

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a parent that prevails in an IDEA action, and then only at the prevailing local right for the kind of services that are furnished.

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The only kind of services that are going to be furnished in an IDEA case are going to be IDEA litigation services.

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So we think that the statute also provides authority.

[00:03:09] Speaker 04:
The kind and quality language is exactly the same as the kind and quality language in the Equal Justice Act.

[00:03:16] Speaker 05:
It is.

[00:03:17] Speaker 04:
It's not unusual.

[00:03:19] Speaker 05:
It is not.

[00:03:20] Speaker 04:
And hasn't the Supreme Court at least indicated that all these fee-shifting statutes, regardless of little nuances in the language, ought to be interpreted the same?

[00:03:31] Speaker 05:
And we're not suggesting

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that's applicable.

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We believe the line of cases that have been cited interpreting fee-shifting statutes are equally applicable here.

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What we're saying is that it's appropriate to define the market here as ideal litigation services

[00:03:52] Speaker 05:
for a number of reasons, one of which is the idea statute itself, but beyond the idea statute, beyond case authority, I think if you look at the facts of this case, that supports that notion as well.

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For example, in this

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court save our Cumberland Mountains opinion, it found that the rate should be commensurate with the prevailing community rate, and again I quote, for attorneys of like expertise doing the same sort of work in the same area.

[00:04:27] Speaker 05:
And it's undisputed if you look at the attorney's verified statement.

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In this case, the expertise and the sort of work that was done here is undisputably special education law, ideal litigation services.

[00:04:44] Speaker 02:
And if you look beyond the... So you're not asking for Lafay?

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You're saying Lafay, enhanced Lafay, neither of those is good?

[00:04:52] Speaker 05:
No, no, we're saying that enhanced Laffey exceeds the market rate as identified in the numerous, it's probably between both parties cited.

[00:05:09] Speaker 02:
Right, so enhanced Laffey, what about Laffey?

[00:05:13] Speaker 05:
The United States Attorney's Office, Laffey made

[00:05:16] Speaker 05:
Well, we think that sets the market.

[00:05:19] Speaker 05:
And there's a variety of opinions that move up and down the US attorney's office Laffey scale.

[00:05:29] Speaker 05:
But even at the height of the Laffey scale, that's $445 an hour.

[00:05:34] Speaker 05:
That's $180 less than the

[00:05:37] Speaker 02:
Why do you think that's okay as a reflection of IDEA cases and not enhanced Lafay as a reflection of IDEA cases?

[00:05:48] Speaker 05:
Well, because the only evidence of a market rate that's tied to IDEA cases in this record

[00:05:58] Speaker 05:
are the probably close to 50 or so district court cases, not a single one of which awarded the enhanced laughing rate.

[00:06:10] Speaker 02:
Isn't that pretty circular?

[00:06:12] Speaker 02:
Because if you go back to the first of those district court cases, it then determines laughing, not enhanced laughing.

[00:06:21] Speaker 02:
But was that correct?

[00:06:22] Speaker 02:
I mean, are we bound at some point?

[00:06:24] Speaker 02:
Does that set the market that a few district courts have done it in a particular way?

[00:06:28] Speaker 05:
I think on this record it does.

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There's no other evidence in this record of a market rate for these kinds of services that exceeds the maximum of the United States attorney's laughing matrix rate, which is $445, at least $180

[00:06:55] Speaker 04:
Is there any indication that they generally handle them on a quasi contingent basis?

[00:07:00] Speaker 04:
You pay my fees only if I prevail, and if I do prevail, I'll collect from the District of Columbia government?

[00:07:09] Speaker 05:
There's no evidence in the record.

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I don't know.

[00:07:12] Speaker 04:
The reason I'm asking that, I'm wondering about whether these 40 or 50 cases that you cite, that's the market right there.

[00:07:21] Speaker 04:
Because these attorneys that are handling these cases are not generally collecting fees when they lose from the client.

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They're collecting fees only when they win, and when they do win, they collect the fees from the District of Columbia government.

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And so all we have to do is just look at the average rate that was awarded by the district courts.

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I think on this record, that's absolutely correct.

[00:07:48] Speaker 02:
I mean, I can only surmise... How was... Oh, keep going.

[00:07:51] Speaker 02:
Sorry, I interrupted.

[00:07:52] Speaker 05:
I can only surmise.

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There's nothing in this record in terms of whether or not an individual like the lawyers collect anything if they lose.

[00:08:01] Speaker 02:
Okay.

[00:08:01] Speaker 02:
How was the first district court supposed to have made the decision?

[00:08:08] Speaker 05:
Well, I think the first district court

[00:08:13] Speaker 05:
Well, it depends on the record.

[00:08:15] Speaker 05:
I mean, if in the record there are submitted affidavits from other attorneys who, in idea cases, received rates either equal to or above the maximum of the United States Lafay, that could be considered.

[00:08:31] Speaker 05:
But in this record, that doesn't exist.

[00:08:32] Speaker 02:
But going to Judge Randolph's question, it's possible, I suppose, in these kinds of cases that they're not collecting fees if they're not prevailing.

[00:08:41] Speaker 02:
And so there'd be no way to really determine a market.

[00:08:47] Speaker 02:
Or is that not right?

[00:08:49] Speaker 05:
Well, I think on – I'm not sure I answered the question.

[00:08:53] Speaker 02:
But, I mean, on this record, I think the market is determined – Going back to the hypothetical of the first district courts facing this issue, what fees are reasonable?

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And so you don't have a body of prior district court cases to look at.

[00:09:07] Speaker 02:
And you look at the market, but it turns out in IDA cases, and I don't know if this is true or not, but if the cases don't prevail, they're not collecting fees.

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that you don't really have much to look at.

[00:09:21] Speaker 05:
It's the fee applicant's burden to produce evidence to justify the rape.

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And that can be done in a number of different ways.

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So even on the first case, if there's no district court precedent, it would depend on, but it would be incumbent upon the fee applicant

[00:09:39] Speaker 05:
to justify the fee, either through affidavits from other attorneys or however they seek appropriate with the applicable case authority to justify.

[00:09:52] Speaker 02:
If the choice is just between Laffey and enhanced Laffey, why follow

[00:09:57] Speaker 02:
Maybe I'm loading the dice by calling one enhanced, but anyway, that's the term.

[00:10:02] Speaker 02:
You know what I'm referring to.

[00:10:04] Speaker 02:
I don't mean to load the dice, but I'm referring to it that way.

[00:10:06] Speaker 02:
But why would we use an all-items CPI rather than a more targeted index that's targeted to legal services?

[00:10:13] Speaker 05:
Well, because I think essentially that's irrelevant.

[00:10:18] Speaker 05:
It avoids the central question in this case.

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And it's not what is the more appropriate method of measuring inflation.

[00:10:27] Speaker 05:
What we're saying is that that sort of obscures the central question.

[00:10:31] Speaker 05:
The central question, is it $445 or is it $625?

[00:10:36] Speaker 05:
That's the market rate in an idea case.

[00:10:40] Speaker 02:
But yeah, okay.

[00:10:44] Speaker 05:
And we think on this record in particular.

[00:10:47] Speaker 02:
But can you answer my question, which is just if we have the choice between those two and it goes back to the original Laffey matrix, why would you use an inflation index that's not targeted to legal services, but that includes housing, food, et cetera, which really have nothing to do with the market and legal services?

[00:11:07] Speaker 05:
I don't know how to answer it any differently than it's really, regardless of how you measure inflation, it still comes down to, is the market X dollars or X dollars?

[00:11:19] Speaker 05:
And I think on this record, the X dollars, the maximum of the X dollars, is the US attorney's laughing matrix of $445.

[00:11:28] Speaker 04:
Do you accept this laughing matrix?

[00:11:35] Speaker 04:
Well, I think

[00:11:43] Speaker 04:
The premise of the Latte matrix is, I think, open to doubt.

[00:11:48] Speaker 04:
There are.

[00:11:48] Speaker 04:
The premise is that the longer you practice law, the more valuable an attorney you are.

[00:11:56] Speaker 04:
And I'm not sure that that's true.

[00:12:02] Speaker 05:
Well, this court has called it a crude kind of device.

[00:12:05] Speaker 05:
It lumps attorneys into these large categories.

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And there are, in the array of district court cases that have been identified in this record, some courts have found it inapplicable.

[00:12:16] Speaker 05:
And they've identified a different rate.

[00:12:20] Speaker 05:
Some have applied a DCPS guideline rate, which... What's the rate that appointed

[00:12:27] Speaker 04:
counsel get in criminal cases?

[00:12:30] Speaker 05:
It's in our brief, in a footnote.

[00:12:31] Speaker 05:
I think it's 125, something like that, in this court.

[00:12:37] Speaker 05:
So, I mean, there is some context, and this rate is totally out of context, but I think that, you know, we also have to look at... What's our standard of review?

[00:12:52] Speaker 05:
Well, we think it's kind of a mixed question.

[00:12:55] Speaker 05:
I mean, I think the district court missed a step here in determining what is the market, what's necessary to attract competent counsel.

[00:13:07] Speaker 05:
And that's a point I think I've neglected a little bit.

[00:13:10] Speaker 05:
I think it's also in this court, excuse me, the Supreme Court in Delaware Valley said that a fee should only be as large as necessary to attract competent counsel.

[00:13:21] Speaker 05:
And just as we think on this record, you can't say that the market is $625 an hour when not a single case has been identified in which that rate has been employed in an IDEA case.

[00:13:35] Speaker 05:
And the rates at its most is at least $180 less.

[00:13:40] Speaker 05:
I think similarly, it can't be reasonably close.

[00:13:45] Speaker 02:
But how do we know if the answer to the question is $150 an hour?

[00:13:50] Speaker 05:
Well, you don't.

[00:13:51] Speaker 05:
And I'm not saying there's a range.

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And we're talking about where does the court abuse its discretion if that's the appropriate standard.

[00:13:59] Speaker 05:
And we would think it's above the maximum rate in the US attorney's laughing matrix, because that's the top rate of any of these cases that have been identified in this record that have been awarded in an idea case.

[00:14:15] Speaker 02:
And the premise of laughing was that it was complex litigation.

[00:14:19] Speaker 05:
That's right, and that's why courts have moved up and down that scale, but no higher.

[00:14:29] Speaker 02:
Do you think this is not complex litigation?

[00:14:33] Speaker 05:
This case?

[00:14:35] Speaker 02:
No, this kind of case, idea cases.

[00:14:38] Speaker 05:
I think it's clearly distinguishable from the type of litigation on which the Laffey matrix was formulated.

[00:14:45] Speaker 05:
If you look at Laffey, I mean, Laffey was a complex employment discrimination case.

[00:14:51] Speaker 05:
Typically, you know, that was tried.

[00:14:53] Speaker 05:
There was numerous plaintiffs.

[00:14:55] Speaker 05:
There were, you know, discovery, motions.

[00:14:59] Speaker 05:
Well, this case here, there was an administrative hearing one day, I think there were four witnesses, seven exhibits, and the case went to district court basically on a record review.

[00:15:11] Speaker 05:
There was no additional, there was no discovery, there was no additional evidence submitted to the district court, and it was decided.

[00:15:18] Speaker 02:
So therefore there are not that many hours in question.

[00:15:21] Speaker 02:
I mean, doesn't the number of hours take into account that?

[00:15:24] Speaker 05:
It could be, but I don't think that's necessarily always true.

[00:15:29] Speaker 05:
A council could be inefficient.

[00:15:32] Speaker 05:
It could raise lots of issues and waste a lot of time on things that aren't particularly relevant.

[00:15:39] Speaker 05:
It could be true, but I think it also could not be true.

[00:15:42] Speaker 05:
Go ahead.

[00:15:45] Speaker 04:
What's the number you're drawing out of this LAPI matrix?

[00:15:51] Speaker 05:
Well, our point simply is that $445 an hour for an attorney with this many years of experience is the most that has ever been awarded in any of the district court ideas that are cited in this record.

[00:16:06] Speaker 04:
Am I looking at the wrong matrix?

[00:16:08] Speaker 04:
I'm at JA96.

[00:16:12] Speaker 05:
Yeah, I think you probably are because in the deferred appendix is only the enhanced Laffey matrix.

[00:16:20] Speaker 05:
We cited to the Laffey, the U.S.

[00:16:22] Speaker 05:
Attorney's Laffey matrix and identified the electronic.

[00:16:26] Speaker 04:
The one on JA96 is the enhanced one?

[00:16:29] Speaker 04:
Yes.

[00:16:31] Speaker 05:
And there is some confusion, of course, with the term Laffey in, the US Attorney's Laffey matrix and the updated Laffey matrix, which is not the enhanced Laffey matrix, and then the enhanced Laffey matrix.

[00:16:44] Speaker 05:
But the exhibit on JA96 is the enhanced Laffey matrix.

[00:16:50] Speaker 05:
And the amount there under 11 to 19 years in the top $625 is what was awarded here.

[00:17:00] Speaker 05:
So we believe that rate, 625.

[00:17:02] Speaker 04:
That wouldn't be.

[00:17:05] Speaker 04:
Don't you measure the rate from the time that the proceeding occurred?

[00:17:11] Speaker 05:
That's right.

[00:17:11] Speaker 04:
That's another error.

[00:17:13] Speaker 05:
The proceeding occurred when?

[00:17:15] Speaker 05:
I think between 11 and 12, or 10 to 12.

[00:17:19] Speaker 05:
But earlier than 2013, the court, and we did not raise this in our brief, but the court did, I think, inappropriately award current rates when it should have awarded historical rates.

[00:17:30] Speaker 05:
I think the court is correct.

[00:17:33] Speaker 05:
But in any case, the $625 an hour cannot reasonably represent the prevailing district rate in idea cases or be necessary to attract competent counsel when no other district court awarded more than $425 an hour

[00:17:49] Speaker 05:
Many have awarded three-quarters of that amount, and Ms.

[00:17:52] Speaker 05:
Ely has presented no evidence that district lawyers in idea cases commonly, indeed ever, received the rate that was awarded here.

[00:18:01] Speaker 05:
For that reason, we believe that district lawyers... I'm going to ask a variation of something.

[00:18:05] Speaker 02:
As before, but suppose the first case had been awarded as you think it should be 445 or whatever, 445, and had been appealed and you had come up here and said, well, no district court's ever awarded 445 before, and that...

[00:18:21] Speaker 05:
I think the way the court structured this in Covington is it recognized that evidence of recent fee awards can be used to support or challenge

[00:18:39] Speaker 05:
the reasonable hourly rate.

[00:18:42] Speaker 02:
And, you know, sure, the first case would be... The idea of a reasonable hourly rate, though, seems to me to be market, looking to a market, and yet we're not looking to a market, we're looking to court awards.

[00:18:58] Speaker 05:
But I think this court said in Covington, clearly, that the awards can be looked at to determine the market.

[00:19:05] Speaker 02:
Yeah, I agree.

[00:19:05] Speaker 02:
I'm just, the logic of all this is...

[00:19:09] Speaker 04:
Well, I understand.

[00:19:12] Speaker 04:
Mr. Love, before you sit down, will you address the argument that your opponent raises that you never made this argument in the district court?

[00:19:23] Speaker 05:
Yeah.

[00:19:24] Speaker 05:
I think if you look at the record at JA 131 to 132, in the district's opposition to the plaintiff's motion for fees, you know, Ms.

[00:19:34] Speaker 05:
Healy's argued that enhanced Lafay's rates

[00:19:39] Speaker 05:
I mean, the district said that Ms.

[00:19:42] Speaker 05:
Ely's position that the enhanced Laffey rates comport with prevailing community rates, and I quote, takes no notice of the decisions in this jurisdiction ordering three quarters of the Laffey rate or less than the Laffey rate for work completed in idea cases.

[00:20:00] Speaker 05:
And then after identifying those cases and other contrary evidence,

[00:20:04] Speaker 05:
The district argued then, again, a quote, that it had set forth multiple sources that demonstrate that the rate does not accord with prevailing rates in the community for similar services by lawyers possessing similar skill, experience, and reputation.

[00:20:22] Speaker 05:
I think we squarely raise this argument in the district's opposition papers.

[00:20:30] Speaker 05:
I think it was not waived.

[00:20:40] Speaker 04:
Can't afford an attorney, the court appoints an attorney in these cases?

[00:20:45] Speaker 05:
Not in this court.

[00:20:48] Speaker 05:
Sometimes in the superior court, they do have a panel of special education attorneys that are appointed sometimes in delinquency, child neglect cases.

[00:20:59] Speaker 04:
What do they get an hour?

[00:21:00] Speaker 05:
$90 an hour, but it is win or lose.

[00:21:04] Speaker 05:
But not in this court.

[00:21:07] Speaker 05:
At any rate, we believe that the court erred by not entering an award far above market rate, not reducing it as in fact idea requires when it exceeds a prevailing community rate.

[00:21:20] Speaker 05:
We would ask the court to reverse and remand for the district court to enter an award that comports with that market rate in idea cases.

[00:21:30] Speaker 01:
All right.

[00:21:30] Speaker 01:
Thank you.

[00:21:31] Speaker 01:
Thank you.

[00:21:32] Speaker 01:
Mr. Turka.

[00:21:41] Speaker 03:
I'd like to start with a few small points.

[00:21:50] Speaker 03:
First, regarding the panel when attorneys are court-appointed in neglect cases.

[00:21:55] Speaker 03:
I don't do any of that work.

[00:21:56] Speaker 03:
My understanding is that, yes, that rate is paid win or lose.

[00:22:00] Speaker 03:
And perhaps more importantly, it's used as kind of a backup rate.

[00:22:04] Speaker 03:
I think those orders are usually crafted such that the court instructs the appointed attorney to seek fees from the district if the attorney prevails, and otherwise they charge $90 an hour to the Superior Court.

[00:22:17] Speaker 03:
Regarding the small question of the use of the current rates,

[00:22:21] Speaker 03:
raised by your honor.

[00:22:22] Speaker 03:
As counsel acknowledged, that was not appealed here.

[00:22:26] Speaker 03:
Not only was it not appealed here, it was not contested in the court below.

[00:22:30] Speaker 03:
That's a discretionary matter for the court to accommodate the land payment after the work.

[00:22:37] Speaker 03:
So current rates were used on the request of Mizzilli.

[00:22:40] Speaker 03:
The district did not object at that time or before this court.

[00:22:43] Speaker 03:
I would like to address what can seem like a small point, and with respect to your honor, the question of loading the dice by calling this enhanced.

[00:22:53] Speaker 03:
And I know this seems like maybe a minor, semantical point, but has it been part of a long-term strategy by the district to slant the judge of the district court, I think?

[00:23:03] Speaker 02:
Right.

[00:23:03] Speaker 02:
In using the terminology, I take to your point.

[00:23:06] Speaker 02:
So I was just using that terminology.

[00:23:08] Speaker 02:
They're both neutral to me.

[00:23:10] Speaker 03:
I'll refer to Amiki.

[00:23:12] Speaker 03:
Amiki was especially concerned about the issue of the inflation adjustment.

[00:23:15] Speaker 03:
That was also a part of our case before the district court.

[00:23:18] Speaker 03:
And this court has specifically recommended that lacking matrices be adjusted for inflation.

[00:23:23] Speaker 03:
So the only question is how they are adjusted for inflation.

[00:23:26] Speaker 02:
The thing that 625 an hour

[00:23:30] Speaker 02:
If you do 2,000 hours a year, it's 1.3 million, and that seems high.

[00:23:40] Speaker 03:
That's a fair question, Your Honor, and I can understand why that number might stick in one's crow.

[00:23:45] Speaker 03:
However, I think that's leaving out a lot of factors, and I mean, I'm not here to testify, but I can tell you I don't know anybody getting rich off this.

[00:23:52] Speaker 03:
In fact, I don't know anybody supporting a family on this.

[00:23:54] Speaker 02:
I'm not doing that.

[00:23:57] Speaker 02:
Right, because you're not filling out, then, there are cases that don't come up winners, but I don't think we can factor that in.

[00:24:04] Speaker 03:
Well, I think the court can factor that in if the court takes the approach the district is asking the court to take.

[00:24:10] Speaker 03:
There's no contingency multiplier, and we're not asking for one.

[00:24:12] Speaker 03:
We're asking for market rates set through a certain system.

[00:24:15] Speaker 03:
The district is trying to shortcut that process of how to determine the market rate and to focus only on the one question from Purdue, which is,

[00:24:24] Speaker 03:
is this sufficient to attract competent counsel?

[00:24:27] Speaker 03:
Purdue mentioned that, but that is the point of the Fee Award.

[00:24:30] Speaker 03:
I think almost every case making a Fee Award has made that observation.

[00:24:35] Speaker 03:
But Purdue did not throw out all the case law that makes that process possible and consistent for the courts.

[00:24:41] Speaker 03:
If the district and if this court choose to focus on that question, then I think we do have to ask, okay, will this rate in fact attract competent counsel?

[00:24:50] Speaker 02:
I don't think we have any clue.

[00:24:52] Speaker 02:
We don't have a clue.

[00:24:53] Speaker 02:
No one has a clue.

[00:24:54] Speaker 02:
I mean, we certainly don't.

[00:24:56] Speaker 02:
I don't.

[00:24:56] Speaker 01:
Well, it attracted you.

[00:24:57] Speaker 01:
Your affidavit says 95% of your practice has been in the field of special education law.

[00:25:02] Speaker 01:
Now, I heard you say you don't make a living off of these hearings, but you also said you've litigated over 1,000 IDEA administrative cases and 20 IDEA federal cases.

[00:25:14] Speaker 01:
Over what period of time?

[00:25:16] Speaker 03:
Since 2003, I've been specialized in IDA work.

[00:25:20] Speaker 03:
And I think that's an important point with looking over some of these recent district court decisions.

[00:25:25] Speaker 03:
First off, I would ask the court if there is a review of the district court decisions that the court look to

[00:25:33] Speaker 03:
151 to 54, which gives a much better overview of what's going on in these cases, including the fact that 18 of them are, in fact, identical cases from the same judge.

[00:25:43] Speaker 01:
I just want to ask you, if 95% of your practice is IDEA, or is it not?

[00:25:51] Speaker 01:
Are you doing other special education work?

[00:25:54] Speaker 03:
Because that sounds to me as if, yes, you do make your living from these cases.

[00:25:58] Speaker 03:
And I appreciate the question, Your Honor, and if I may address it directly.

[00:26:01] Speaker 03:
What has occurred in the special education world in this jurisdiction, there's been a gigantic upheaval in the last few years.

[00:26:08] Speaker 03:
Prior to 2008, the relationship about billing with the District of Columbia was fairly amicable.

[00:26:16] Speaker 03:
Well, there were two main changes.

[00:26:18] Speaker 03:
First off, up to that point, the win rate for parent attorneys, at least as far as I knew and what I saw in my firm, was 90 to 95 percent.

[00:26:25] Speaker 03:
That was primarily because the district did not bother to contest cases where it knew it was wrong.

[00:26:33] Speaker 03:
So cases could be done quickly, they were done under the fee cap, and they had that kind of success rate.

[00:26:37] Speaker 03:
Billing, as far as I know by everybody, was accomplished in the same way.

[00:26:40] Speaker 03:
We sent our bills to the district, the district would send back some proposed payment, or the district would send a proposed lump settlement agreement, and we have one of those in this record.

[00:26:50] Speaker 03:
At that time, the district was paying, at least my bills, paying them at 100 percent or at some number rounded down to just a round number, as it did in the settlement in this case, where it rounded, I think it was 90,000 and chained down to 90,000.

[00:27:03] Speaker 03:
And so that was the consistent system.

[00:27:05] Speaker 03:
On October 1st, 2008, and this is kind of a deposition, the district decided that it would not do any more settlements of attorney's fees.

[00:27:14] Speaker 03:
It also stopped paying attorney's fees.

[00:27:16] Speaker 03:
And that is why, since that time, we've had an explosion of fee litigation at the district court.

[00:27:22] Speaker 03:
So now what has to happen is that for every, if you want payment, we have to be in the situation exactly where we're in here, which is I'm right now arguing for money for work that I did five years ago.

[00:27:33] Speaker 03:
And I'm arguing for the money only for the work in which I've prevailed.

[00:27:39] Speaker 03:
And of course we get paid only for those prevailing theories.

[00:27:42] Speaker 03:
So it's not just prevailing in the case, but prevailing only in theory.

[00:27:46] Speaker 03:
So at this point we're looking at a situation where, first, if you're getting paid for 50% of your billable work,

[00:27:53] Speaker 03:
I consider that a good result.

[00:27:55] Speaker 03:
And then, of course, if you're a small practitioner, you are not spending all of your time on billable work.

[00:28:00] Speaker 03:
It's a much smaller fraction of this.

[00:28:02] Speaker 03:
I can say that I use for my estimates, I use one quarter of what the hourly rate to get to my actual rate.

[00:28:09] Speaker 03:
Now, if we take one quarter of 625, we're still at what seems like a big number.

[00:28:13] Speaker 03:
But we're looking at, if you had a 40-hour work week at that number, sorry, I've done the math before I came in here, but it comes out to about $350,000 per year.

[00:28:22] Speaker 03:
Now, that's a nice salary.

[00:28:23] Speaker 03:
That would attract a lot of people.

[00:28:25] Speaker 03:
We're talking about, though, at the top of the class, as counsel observed, people who are down in the 1-3 bracket or making something half that.

[00:28:32] Speaker 03:
We're talking about no benefits.

[00:28:33] Speaker 03:
We're talking about the overhead of running a small firm.

[00:28:36] Speaker 03:
Even if you're at minimal expenses, you have to carry those expenses.

[00:28:40] Speaker 03:
And again, we're talking about living in a world of great uncertainty and with a major delay in payment.

[00:28:47] Speaker 03:
If an IDA practitioner starts an administrative case today, at a minimum, they are not getting paid for a year and a half to two years.

[00:28:59] Speaker 03:
That's the process.

[00:29:00] Speaker 03:
So, um... Did I hear you correctly?

[00:29:02] Speaker 04:
You only get paid if you win?

[00:29:05] Speaker 03:
If you are representing poor clients, yes.

[00:29:08] Speaker 03:
So it's contingent?

[00:29:13] Speaker 03:
Essentially, it's contingent, yeah.

[00:29:16] Speaker 03:
So in that world, and because these decisions in the district court are recent, we haven't seen all of the fallout from this new system yet.

[00:29:23] Speaker 03:
But there is evidence in the record about what has occurred.

[00:29:27] Speaker 03:
And we cited in our brief and in our filings below the Thomas BDC decision that talks about what the court called the disgraceful state of affairs.

[00:29:40] Speaker 03:
that was based on uncontested evidence from the plaintiff, who I represented in that case, of the devastation that occurred in the parents' attorney bar starting at that time in 2008, 2009.

[00:29:52] Speaker 03:
Prior to 2009, my firm or myself, we were litigating literally more than 200 cases per year for the period 2004 through 2008, inclusive.

[00:30:03] Speaker 03:
Last year, I filed, I think, fewer than five cases, definitely fewer than 10 on behalf of parents who could not afford representation.

[00:30:11] Speaker 03:
There's been a similar change in other firms.

[00:30:15] Speaker 03:
The largest firm by far who was doing 40%

[00:30:18] Speaker 03:
of IDEA administrative litigation, almost all of it for parents who could not afford representation.

[00:30:25] Speaker 03:
They cut their practice down by 80%, I believe.

[00:30:27] Speaker 03:
Again, all of that evidence was presented in Thomas VDC, which we cited.

[00:30:32] Speaker 02:
And the district has never tested it.

[00:30:33] Speaker 02:
I think you said that the cause of that was?

[00:30:35] Speaker 03:
The fact that DCPS both cut the rate it would willingly pay and stopped settling and stopped paying.

[00:30:42] Speaker 03:
So what happened was the rate was cut, but then also all of a sudden it had a huge delay.

[00:30:46] Speaker 03:
And again, you have to look to, and I can attest to exactly the effect of it because in, you know, early 2009, a few months after they instituted this policy on October 1st, 2008, I shut my firm's doors.

[00:30:58] Speaker 03:
I fired, you know, an associate and four other employees, and I've been essentially on my own with part-time help since then.

[00:31:05] Speaker 03:
I'm not asking for the court's pity.

[00:31:06] Speaker 03:
I'm reporting what the reality is of whether this is attracting counsel.

[00:31:10] Speaker 02:
Now on the standard of review to go there, I think you say it should be abuse of discretion.

[00:31:16] Speaker 03:
I think this court has been very clear that it's abuse of discretion.

[00:31:19] Speaker 02:
So if the district court here had awarded the other Laffey, I'll call it, would that have been an abuse of discretion?

[00:31:29] Speaker 03:
Well, I have had to ask myself that question.

[00:31:33] Speaker 03:
I was counsel in some of the cases that we're talking about here.

[00:31:37] Speaker 03:
and sometimes it's been a tougher call than others about whether I would bring that case up and of course sometimes it's the client's call more than mine.

[00:31:45] Speaker 03:
I think that it would in this case have been an abuse of discretion because in this case there was no evidence presented to the court.

[00:31:52] Speaker 03:
on which to make a determination of how to adjust the Latvian matrix for inflation, other than the evidence presented by the plaintiff, which was expert testimony.

[00:32:02] Speaker 03:
And then the court, of course, cited all these other sources.

[00:32:04] Speaker 03:
It continues to be the case that the district has not cited any additional evidence for a different method of inflation adjustment.

[00:32:12] Speaker 03:
And Miki addressed this at length, and the district court did as well, in a very carefully considered opinion.

[00:32:17] Speaker 02:
Just to follow up, one possibility, if you prevail here, is that the court would say, well, it's not an abuse of discretion.

[00:32:27] Speaker 02:
It's up to the district court to go with Laffey A or Laffey B, which is an odd state of affairs.

[00:32:33] Speaker 02:
in some respects, to say that district courts have this huge range for very similar cases.

[00:32:41] Speaker 02:
Maybe that's okay though.

[00:32:43] Speaker 03:
It would remain the messy situation that it now is, and I don't pretend that it's a

[00:32:49] Speaker 03:
a very stable situation.

[00:32:51] Speaker 03:
It is true that when a parent files a fee case before the district court, they have no idea what the rate is going to be until the judge is assigned, and perhaps not even then.

[00:33:02] Speaker 03:
And yes, that makes for a messy situation, and one I'm sure this court would prefer not exist, and I'm sure the district court would prefer not exist.

[00:33:08] Speaker 03:
However, this court may make the determination that that's an issue for the legislature and not for this court.

[00:33:14] Speaker 03:
If this court is going to address that issue on this record, I don't think that the district has presented anything but a reason to accept a laughing matrix.

[00:33:23] Speaker 03:
as a measure of community rates and to accept this method of adjusting the Lafay matrix for inflation as this court has instructed be done.

[00:33:31] Speaker 03:
The district's main argument is that we need our own separate matrix for IDEA litigation.

[00:33:38] Speaker 03:
This court has explicitly rejected that argument in Covington in which the court said

[00:33:44] Speaker 03:
rejected an argument that it had to be broken down by statutory scheme.

[00:33:49] Speaker 03:
And additionally, since Laffey itself, the court has used Laffey in a whole range of cases that I mentioned in the brief, the Equal Access to Justice Act, as Judge Randolph mentioned, 1988, Laffey itself with Title VII, and even the Surface Mining Control and Reclamation Act in Cumberland Mountains.

[00:34:06] Speaker 02:
I guess the response to that would be the statutory language here seems a little more tightly drawn to this kind of case.

[00:34:13] Speaker 03:
Well, in fact, the Surface Mining Act and, as Judge Randolph observed, the Equal Access to Justice Act now match the same language.

[00:34:21] Speaker 03:
I think the only reason that it is is because the IDEA has been amended, for other reasons, since Bloom, and so is seeking to mirror the language that has been adopted by the courts with approval for that language.

[00:34:33] Speaker 03:
I don't think there's any evidence that there was an attempt to overturn the entire scheme.

[00:34:37] Speaker 04:
The evidence before the magistrate and the district court, was there any evidence other than your practice?

[00:34:49] Speaker 03:
You were billing practice?

[00:34:51] Speaker 03:
Market rates?

[00:34:54] Speaker 03:
Right.

[00:34:54] Speaker 03:
There was my affidavit regarding billing practice.

[00:34:57] Speaker 03:
There was my evidence regarding past settlements with the district, again, of my bills.

[00:35:05] Speaker 03:
And there was the reference to the Lafay matrix with the expert report and approval of it.

[00:35:10] Speaker 03:
There's nothing at all in the district.

[00:35:12] Speaker 03:
So that specific contrary evidence that this court has demanded of the defendant in fee litigation was simply not produced.

[00:35:18] Speaker 01:
But the answer is no.

[00:35:19] Speaker 01:
You didn't have affidavits from other... No other affidavits.

[00:35:22] Speaker 03:
That was my question.

[00:35:23] Speaker 02:
That was the question.

[00:35:24] Speaker 03:
I'm sorry if I misunderstood.

[00:35:26] Speaker 01:
Can I go back to, and I'm not, I don't mean to be

[00:35:33] Speaker 01:
picking on you, but you said you were paid 100% of whatever you requested before 08, is that right?

[00:35:40] Speaker 03:
Yes.

[00:35:40] Speaker 01:
What was that rate?

[00:35:42] Speaker 03:
That rate were rates, it wasn't exactly this number because it was an earlier year and I was lower on the matrix.

[00:35:47] Speaker 03:
What was the rate?

[00:35:48] Speaker 03:
It was exactly, I don't remember the number, Your Honor, it was exactly comporting though with this version of the Latvia matrix.

[00:35:53] Speaker 01:
I mean, was it $300?

[00:35:54] Speaker 03:
Was it $300?

[00:35:57] Speaker 03:
In 2008, I hate to... I can look up the matrix, but I believe the number was something like $450.

[00:36:04] Speaker 01:
All right.

[00:36:04] Speaker 03:
So... And please, I want to emphasize that I'm going by memory.

[00:36:09] Speaker 01:
All right.

[00:36:09] Speaker 01:
But let's just take that then as a hypothetical.

[00:36:13] Speaker 01:
And the district is paying 100% of a $450 an hour rate.

[00:36:23] Speaker 01:
says we're not going to, in effect, we're not going to pay that anymore.

[00:36:26] Speaker 01:
We're not going to settle.

[00:36:27] Speaker 01:
We're going to contest it.

[00:36:29] Speaker 01:
Is that the state of affairs in 08?

[00:36:34] Speaker 01:
Absolutely.

[00:36:34] Speaker 01:
Based on your experience?

[00:36:36] Speaker 03:
That is absolutely the state of affairs.

[00:36:37] Speaker 03:
And that is my conversation with many different parent attorneys.

[00:36:40] Speaker 03:
And there's just no question about that whatsoever.

[00:36:42] Speaker 03:
And again, the exposure of litigation in the district court, I think, would clearly exhibit it.

[00:36:46] Speaker 01:
All right.

[00:36:46] Speaker 01:
Now, the 1,000 administrative cases that you handled, was that before 08?

[00:36:52] Speaker 03:
The overall majority of those were before 2008.

[00:36:54] Speaker 01:
And how many have you handled since 08?

[00:36:59] Speaker 03:
For clients who could not afford representation or overall.

[00:37:04] Speaker 01:
Well, for the fees that you're collecting from the district.

[00:37:09] Speaker 03:
For collecting from the district, it's been fewer than 100 for sure.

[00:37:16] Speaker 03:
All right.

[00:37:16] Speaker 03:
My time is up.

[00:37:17] Speaker 03:
Would your Honor like me to find the numbers from the matrix?

[00:37:20] Speaker 01:
That's OK.

[00:37:22] Speaker 03:
There are no further questions.

[00:37:23] Speaker 03:
We will ask that the court affirm.

[00:37:24] Speaker 01:
All right.

[00:37:25] Speaker 01:
Does Mr. Love have any time left?

[00:37:28] Speaker 01:
All right.

[00:37:28] Speaker 01:
Why don't you take two minutes if you need them.

[00:37:31] Speaker 05:
Very briefly, Your Honor.

[00:37:32] Speaker 05:
I want to just point out that the fee shifting statute isn't to enhance attorney's business.

[00:37:42] Speaker 05:
It's to ensure that a client can get competent counsel to prosecute these cases.

[00:37:48] Speaker 05:
We've cited, you know,

[00:37:51] Speaker 05:
2013, so there's a continuing history of clients being at least able to get counsel to represent them in these types of cases.

[00:38:06] Speaker 05:
The second, I would point out, there's been some reference to the Equal Access to Justice Act, and using the same language, of course, the Equal Access to Justice Act has a soft cap of $125 an hour.

[00:38:19] Speaker 05:
And again, I want to emphasize that Ms.

[00:38:23] Speaker 05:
Ely, as the fee applicant, has the burden to introduce the evidence to support the rate that she's requesting.

[00:38:30] Speaker 05:
And the best, indeed the only evidence in this record, are the district court decisions.

[00:38:36] Speaker 05:
That is a recognized form of evidence by this court.

[00:38:40] Speaker 05:
And, you know, in future cases the district may introduce evidence to justify a lower rate, plaintiffs may introduce evidence to support a higher rate.

[00:38:52] Speaker 05:
On this record, the only evidence that's tied to IDEA and defines the market here is the district court

[00:39:05] Speaker 05:
were identified in opposition to the plaintiff's motion for fees and were not taken into consideration by the district court in terms of establishing the market.

[00:39:18] Speaker 02:
Do you agree with the standards of use of discretion?

[00:39:22] Speaker 05:
I think using an abuse of discretion standard would reach the same result.

[00:39:27] Speaker 05:
And the district court abused its discretion by discounting the only record evidence... Well, my question was, do you agree that the proper standard of review in these kinds of cases is abuse of discretion?

[00:39:38] Speaker 05:
Yes, unless it's a legal issue, it would be an abuse of discretion.

[00:39:43] Speaker 04:
You agree that the counsel for the plaintiffs and the idea action is entitled to attorney's fees?

[00:39:53] Speaker 05:
Yes, as a prevailing party, the statute provides that.

[00:39:56] Speaker 04:
What is the rate that you would have

[00:40:02] Speaker 05:
Well, we think here the record only justifies a fee that would be at maximum $445 an hour.

[00:40:10] Speaker 05:
Beyond that, I think the court abuses discretion in awarding... Have you made that offer to your opponent?

[00:40:18] Speaker 05:
I don't know.

[00:40:19] Speaker 05:
We haven't had any negotiations on the appellate level.

[00:40:22] Speaker 05:
I don't know what was done prior to the case being moving forward and on appeal.

[00:40:30] Speaker 04:
Would he be entitled to attorney's fees for this appeal?

[00:40:34] Speaker 05:
If he prevails.

[00:40:38] Speaker 02:
On the 445, I'd just go back to this.

[00:40:41] Speaker 02:
You're saying that's okay because that's Laffey.

[00:40:44] Speaker 02:
And you're saying 625 is not OK, because that's, as you call it, enhanced Laffey.

[00:40:50] Speaker 02:
But the only difference between those two is the inflation index.

[00:40:54] Speaker 02:
And why is it an abuse of discretion?

[00:40:56] Speaker 02:
Let me finish the question.

[00:40:57] Speaker 02:
Why is it an abuse of discretion to choose the one inflation index over the other, when it seems like you can make decent arguments for both?

[00:41:05] Speaker 05:
Sure.

[00:41:05] Speaker 05:
And I said, because.

[00:41:07] Speaker 05:
only, you know, the market is defined by the record in this case only runs up to $445 an hour.

[00:41:16] Speaker 05:
There's no evidence, in fact there's not a single idea case of 50 cases or so cited that approved an award of

[00:41:26] Speaker 05:
$625 an hour.

[00:41:29] Speaker 05:
So it simply can on this record be supported that that is a prevailing community rate for idea practitioners in the District of Columbia.

[00:41:41] Speaker 05:
And that's why we say on this record

[00:41:44] Speaker 05:
The market, as defined by this record, has a ceiling of $445 an hour, regardless of how you measure inflation.

[00:41:54] Speaker 05:
The bottom line is, what does it take to attract competent counsel,

[00:42:08] Speaker 05:
established the market rates, and here it's, you know, the market rate is established by the only evidence, as I said, which is at most, it's at least $180 an hour less than the rate that was awarded here, and that's why we believe it was an abuse of discretion to enter the award that was entered by the district court here.

[00:42:34] Speaker 01:
Let me ask you one last question, and that is, magistrate Judge Kaye used a rate for non-complex litigation and then cut it 25%.

[00:42:43] Speaker 01:
I just don't remember.

[00:42:47] Speaker 01:
Did you propose that in the district court?

[00:42:50] Speaker 01:
Did anybody argue for that?

[00:42:53] Speaker 05:
I think we argued for an even lower rate, but when the district, when Magistrate Judge Kaye's report and recommendation came out at three quarters of Lafay, we did not object to that.