COVINGTON v. DISTRICT OF COLUMBIA

Dissenting opinion filed by Circuit Judge HENDERSON.

HARRY T. EDWARDS, Chief Judge:

This appeal involves consolidated challenges to attorneys' fee awards granted under 42 U.S.C. § 1988 (1988 & Supp. V 1993) in favor of prevailing parties (collectively "plaintiffs") in three civil rights cases against the District of Columbia ("District"). In support of the fee claims, the plaintiffs' attorneys submitted to the District Court declarations describing their billing practices — explaining that when they do bill clients, they charge reduced rates for non-economic, public-spirited reasons — as well as information indicative of their skill, experience, and reputation. They also submitted evidence of the prevailing market rates for complex federal litigation in the District of Columbia. The District opposed plaintiffs' fee applications, claiming that plaintiffs' requested rates were substantially higher than rates charged by similarly experienced attorneys who litigate civil rights and employment discrimination cases in the District of Columbia. In support of its position, the District submitted an affidavit of the Assistant Deputy Corporation Counsel, who recounted rates charged by nine plaintiff attorneys and contended that those rates more accurately reflected prevailing market rates. The District Court disagreed.

The District Court found that plaintiffs' attorneys intentionally charged their poorer clients reduced rates for non-economic, public-spirited reasons. The record indicates plaintiff counsels' years of legal experience as well as their ability to handle complicated federal cases. The court found that the relevant market was complex federal litigation and that plaintiffs' requested rates were in line with those prevailing in the District of Columbia for similar services by lawyers of reasonably comparable skill, experience, and reputation. Thus, relying on established law, the District Court granted plaintiffs' motion for reasonable attorneys' fees. Finding no abuse of discretion, we affirm the judgments of the District Court.

In section 1988 attorneys' fee cases, attorneys who customarily charge reduced fees reflecting non-economic, public-spirited goals may seek fees based on the prevailing market rates if the prevailing party demonstrates the reasonableness of the requested hourly rates. That burden entails the following: first, if the attorney customarily charges clients lower rates than plaintiff has requested under section 1988, the attorney must demonstrate that the customarily reduced rates are charged for non-economic reasons; second, the attorney must offer information documenting his or her skill, experience, and reputation; and third, the attorney must produce evidence of the prevailing market rates in the relevant community for attorneys of comparable skill, experience, and reputation. In the instant cases, plaintiffs met this burden, and the District offered little by way of rebuttal. Accordingly, the District Court did not err in finding plaintiffs' requested rates reasonable and granting the motions for attorneys' fee awards. Nor did the District Court err in determining that complex federal litigation was the relevant market for purposes of establishing the prevailing market rates in the District of Columbia. Accordingly, we affirm the District Court's attorneys' fee awards in all three cases.

I. BACKGROUND

In these consolidated cases, plaintiffs supported their motions for attorneys' fees by submitting evidence of their attorneys' billing practices, their attorneys' legal experience, skill, and reputation, and the prevailing market rates for complex federal litigation in the District of Columbia. Plaintiffs' motions were granted in all three cases. Although each case involved a different claim — Covington v. District of Columbia, 839 F.Supp. 894 (D.D.C.1993), was a prisoners' rights case; Sexcius v. District of Columbia, 839 F.Supp. 919 (D.D.C.1993), was a First Amendment case; and Galloway v. Superior Court, Civ. Action No. 91-0644, 1994 WL 162410 (D.D.C. Apr. 21, 1994), was a handicap discrimination case — and each was brought by different attorneys, the plaintiffs in each case submitted substantially similar evidence. A detailed review of the evidence presented in Covington will suffice to provide the necessary foundation for our analysis.1

Attorneys for the plaintiffs in Covington brought a section 1983 action on behalf of ten prison inmates who were beaten while shackled and handcuffed and nine inmates who were sent to a maximum security facility without proper hearings. Covington, 839 F.Supp. at 895. The jury found for the plaintiffs, the District appealed, and then the parties settled while the appeal was pending. Id. The settlement provided that plaintiffs were entitled to an attorneys' fee award; but when the parties could not agree on the appropriate hourly rate, the plaintiffs filed a motion for attorneys' fees.

Plaintiffs' fee application included information pertaining to counsels' billing practices; their experience, skill, and reputation; and the prevailing market rates for complex federal litigation in the District of Columbia. Specifically, the lead attorneys in the case, Michael Gaffney and Daniel Schember, submitted declarations, explaining that they compose a two-attorney firm which handles federal court litigation concerning civil rights and civil liberties, military and veterans law, employment and labor law, and administrative proceedings. According to their declarations, Gaffney and Schember choose clients and cases based on "commitments to the clients and to the constitutional and statutory rights at issue," Declaration of Michael J. Gaffney at 5, Joint Appendix (J.A.) at I-163, and they offer needy clients reduced or below-market rates for these non-economic reasons.2 The ten inmate plaintiffs in Covington were indigent. As Schember's declaration explains, the lead attorneys took the case "to seek to enforce the constitutional prohibition against punitive beating of prisoners." Declaration of Daniel M. Schember at 6, J.A. at I-155. Gaffney's and Schember's declarations each recount their significant experience since 1975, at the Lawyers Committee for Civil Rights Under Law, and since 1977, at their own firm, practicing federal court litigation on a variety of issues.3 Their declarations also provide indications of their reputations, listing teaching positions4 and fellowships,5 awards received,6 participation in congressionally mandated studies,7 and chairing the D.C. Bar's Committee on Military and Veterans Rights.8

Two other attorneys in the Covington case, Linda Delaney and Mark Hager, also submitted declarations regarding their billing practices and experience. Delaney's declaration revealed that when she bills clients, she charges below-market prices for non-economic reasons.9 Declaration of Linda A. Delaney at 5-6, J.A. at I-189-90. Delaney, who has practiced law since 1984, submitted descriptions of eight federal civil rights or employment cases in which she was involved as well as actions brought in District of Columbia courts. Declaration of Delaney at 2-3, J.A. at I-186-87. Hager, who holds a J.D. and a Ph.D. from Harvard and currently teaches law at American University, stated that he does not have a standard hourly rate for litigation. Declaration of Mark M. Hager at 1, 3, J.A. at I-191, I-193. He practiced law full time for one year at a Boston law firm, doing commercial and criminal defense litigation, and since 1987, when he began teaching full time, he has represented clients in political asylum cases, employment cases, prisoners' rights cases, and has acted as a commercial arbitrator. Declaration of Hager at 1-3, J.A. at I-191-93. In addition, plaintiffs used the services of two law graduates and two law students. Covington, 839 F.Supp. at 900-01.

The Covington plaintiffs submitted a good deal of evidence establishing the prevailing market rates for comparably experienced attorneys handling complex federal litigation. They submitted the original Laffey matrix, a schedule of charges based on years of experience 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), cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985).10 Plaintiffs also submitted affidavits attesting to increases in the market rates since the original Laffey matrix was established; the U.S. Attorney's Office version of the updated Laffey matrix; the memorandum opinions in Robles v. United States, Civ. Action No. 84-3635, (D.D.C. Jan. 10, 1992), J.A. at I-119, and Fischbach v. District of Columbia, Civ. Action No. 87-0646 (D.D.C. Jan. 3, 1993), J.A. at I-254, in which district courts awarded fees based, in part, on the Laffey matrix; and an EEOC decision, Hatfield v. Garrett, Appeal No. 01892909 (E.E.O.C. Sept. 26, 1990), J.A. at I-90, in which the EEOC awarded attorneys' fees using the updated Laffey matrix.11

Based on this evidence, plaintiffs requested fees for Schember and Gaffney at a rate of $260 per hour, which represented the 1993 prevailing market rate12 for experienced federal court litigators with eleven to nineteen years of experience in an updated version of the Laffey matrix13 and the U.S. Attorney's Office matrix.14 Plaintiffs requested attorneys' fee awards at an hourly rate of $160 for Delaney and Hager, which represents a rate just under that suggested by the U.S. Attorney's Office matrix for attorneys with four to seven years experience. Finally, plaintiffs requested that the two law graduates be awarded $85 per hour (less than the prevailing market rate of $125 under the U.S. Attorney's Office matrix), and that the two law students be awarded $70 per hour (the prevailing market rate for paralegals and law clerks under the U.S. Attorney's Office matrix). See Covington, 839 F.Supp. at 900-03.

The District opposed plaintiffs' request for attorneys' fees, arguing that a submarket of plaintiff attorneys who handle civil rights and employment discrimination cases existed, and that the prevailing market rate for this submarket of attorneys with between ten and twenty years of experience was well below that requested by plaintiffs in this case. In support, the District submitted the declaration of Michael Zielinski, Assistant Deputy Corporation Counsel in the Civil Division of the Office of Corporation Counsel, who recounted plaintiffs' requests for attorneys' fees in nine cases brought by solo practitioners or small firms against the District of Columbia. Zielinski Declaration at 2-7, J.A. at I-218-23. Zielinski suggested that there were "a large number of attorneys in the District's legal marketplace who ... litigate complex cases like employment discrimination and civil rights actions and who have established hourly billing rates at or near $150." Zielinski Declaration at 8, J.A. at I-224. A majority of the nine plaintiff attorneys identified by Zielinski had requested attorneys' fees at their usual billing rates; and two of the attorneys had sought market rates akin to those in the Laffey matrix.

The District Court found for plaintiffs and awarded them the requested attorneys' fees. The trial judge noted that, because the Covington "plaintiffs' assertions that their counsel have taken public interest cases for below-market rates are reasonably well-documented" and that these assertions were "virtually unchallenged," the court would "take plaintiffs at their word." Covington, 839 F.Supp. at 897. The District Court Judge also noted that "[p]laintiffs' counsel handled very well this complicated federal case, which involved the constitutional claims of ten plaintiffs against sixteen defendants, lengthy discovery, many motions and a jury trial." Id. at 895. The District Court found that plaintiffs presented "sufficiently persuasive evidence charting the prevailing market rates of litigators of complex federal matters." Id. at 898. In reviewing the evidence plaintiffs submitted on the prevailing market rates, the District Court noted that the Laffey matrix had been "relied upon, at least in part, by six District of Columbia district judges and that [it had] received a degree of approval" from this court in Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1525 (D.C.Cir.1988) (en banc). Id. (citations omitted). The court also reviewed the fee matrix "developed by the U.S. Attorney's Office for the District of Columbia that the U.S. Attorney relies upon in settlements." Id. In short, the trial court found that plaintiffs met their evidentiary burden, and that defendants' factual rebuttal of plaintiffs' evidence was ineffectual. Id. at 899-900.

The District Court found the District's evidence unpersuasive: "Defendants' sole affidavit ... cites only seven instances in which lawyers with 10-20 years of experience charged about $150 per hour in representing plaintiffs in civil rights, employment, or discrimination matters. Standing alone, these seven instances are insufficient to demonstrate that $150 per hour is the prevailing rate across the District of Columbia in this sub-market." Id. at 898. Finally, the District Court rejected the District's submarket theory, noting that the District had failed to convince the court "that lawyers handling civil rights, employment, or discrimination cases for plaintiffs constitute a sub-market of their own," and that "the prevailing rate in the sub-market ... is — as defendants claim — lower than the rate prevailing in the broader legal market" of complex federal litigation. Id. at 898 & n. 8.

The District Court awarded plaintiffs attorneys' fees for Gaffney and Schember at an hourly rate of $260; for Delaney and Hager at an hourly rate of $160; for the law graduates at an hourly rate of $85; and for the law students at an hourly rate of $70. Id. at 900-02. Defendants conceded to the reasonableness of the hours claimed in plaintiffs' original motion. Id. at 903.

II. ANALYSIS

The fee shifting provision embraced by 42 U.S.C. § 1988(b), covering federal civil rights actions, provides that

In Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984), the Supreme Court determined that Congress intended

Four years later, this court, sitting en banc, held that

Save Our Cumberland Mountains, 857 F.2d at 1524 ("SOCM").

This case involves a relatively straightforward application of these principles. The attorneys in the instant cases, who either practice privately and for-profit but at reduced rates reflecting non-economic goals or who have no established billing practice, request the prevailing market rates.15 Under the Supreme Court's decision in Blum and this court's decision in SOCM, we think it is quite clear that plaintiffs' attorneys are entitled to an award based on the prevailing market rates, and we can find nothing in the records of these cases to indicate that the trial judges abused their discretion under the statute in awarding fees.

A. The Attorneys' Fee Case

As the Supreme Court has stated, "[a] request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). "Parties to civil rights litigation in particular should make a conscientious effort, where a fee award is to be made, to resolve any differences." Blum, 465 U.S. at 902 n. 19, 104 S.Ct. at 1550 n. 19. Where settlement is not possible, case law establishes a clear structure for the determination of reasonable fees.

Under the statute, the district court is expressly empowered to exercise its discretion in determining the amount of a fee award, see 42 U.S.C. § 1988(b); however, a fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates, see Blum, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11 ("[C]ourts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates."); Hensley, 461 U.S. at 437, 103 S.Ct. at 1941 ("[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.").

As a general matter, this court has characterized the Blum formulation as constituting a three-part analysis: "(1) determination of the number of hours reasonably expended in litigation; (2) determination of a reasonable hourly rate or `lodestar'; and (3) the use of multipliers as merited." SOCM, 857 F.2d at 1517; see also In re Donovan, 877 F.2d 982, 992 (D.C.Cir.19f89); In re Olson, 884 F.2d 1415, 1423 (D.C.Cir.1989). In this case, however, only the second prong — the determination of a reasonable hourly rate — is at issue. As noted above, a fee applicant's burden in establishing a reasonable hourly rate entails a showing of at least three elements: the attorneys' billing practices; the attorneys' skill, experience, and reputation; and the prevailing market rates in the relevant community. See Blum, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11; SOCM, 857 F.2d at 1524.

First, in cases in which prevailing attorneys request rates which are greater than those they normally charge, the attorneys must offer some evidence that they charge reduced rates r public-spirited or non-economic reasons. In SOCM, the court addressed the claims of attorneys engaged in private, for-profit practice, who "adjusted fee schedules downward from pro bono or quasi public interest motives to reflect the reduced ability of the client to pay or what the attorney saw as the importance and justice of the client's cause." 857 F.2d at 1519. Building on the Supreme Court's decision in Blum — which allowed market-rate fees for attorneys in non-profit legal services organizations — the SOCM court concluded:

857 F.2d at 1524.

As was true in SOCM, the burden is on the fee applicant to show that the attorney's billing practices are of the sort covered by the SOCM test. That is, the attorney must show that his or her custom of charging reduced rates is in fact attributable to "public spiritedness." Implicit in this line of inquiry is the assumption that the law was not written to subsidize attorneys who charge below-market rates because they cannot command anything more. And a defendant is free to rebut a fee claim on these terms in cases in which the issue is posed. We recognize that, in some cases, this may be a difficult line of inquiry, for an attorney who cannot command market rates invariably will have a "custom" of charging rates below the market. This problem is diminished with respect to attorneys who charge variable rates (both at and below the market, with the latter attributable to public-spirited goals). In any event, it is within the sound discretion of the district court to weigh the evidence to determine whether an attorney customarily charges reduced rates for non-onomic reasons.

Second, prevailing parties must offer evidence to demonstrate their attorneys' experience, skill, reputation, and the complexity of the case they handled. In articulating the plaintiffs' burden in these cases, the Supreme Court required that fee applicants "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." Blum, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11.16 To some extent, this second element of the reasonable-rate analysis informs the first element of the inquiry, for as the SOCM court noted: "We do not propose ... that all attorneys be remunerated at the same rate, regardless of their competence, experience, and marketability. We only aim to provide that their experience, competence, and marketability will be reflected in the rate at which they are in fact remunerated."17 857 F.2d at 1521 n. 4.

Third, plaintiffs must produce data concerning the prevailing market rates in the relevant community for attorneys of reasonably comparable skill, experience, and reputation. This is undoubtedly a difficult assessment, and the Supreme Court has so acknowledged:

The Supreme Court's decision in Blum establishes the framework for analysis:

Blum, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11. The Court also noted that "rates charged in private representations may afford relevant comparisons." Id.; see also Missouri v. Jenkins, 491 U.S. 274, 286, 109 S.Ct. 2463, 2470, 105 L.Ed.2d 229 (1989) ("A reasonable attorney's fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market ... and one that grants the successful civil rights plaintiff a `fully compensatory fee,' ... comparable to what `is traditional with attorneys compensated by a fee-paying client.'") (citations omitted).

In order to demonstrate this third element, plaintiffs may point to such evidence as an updated version of the Laffey matrix or the U.S. Attorney's Office matrix, or their own survey of prevailing market rates in the community. In SOCM, we approved of the district court's reliance, at least in part, on the schedule of prevailing rates compiled in Laffey. Although the SOCM court remanded the case to the district court for the limited purpose of making new findings as to reasonable hourly rates at the time the services were performed, it stated:

SOCM, 857 F.2d at 1525. Although fee matrices are somewhat crude — the Laffey matrix, for example, lumps attorneys with four to seven years of experience in the same category; attorneys with eleven to nineteen also share the same hourly rate18 — the matrices do provide a useful starting point. To supplement any matrix that has been offered, plaintiffs may also provide surveys to update the matrix; affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.

"When ... the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee contemplated by § 1988." Blum, 465 U.S. at 897, 104 S.Ct. at 1548. At this point, the defendant may challenge the plaintiffs' application for attorneys' fees, but the Government's burden in rebuttal is not without demands:

Concerned Veterans, 675 F.2d at 1326.

Defendants may challenge any part of the prevailing parties' case for attorneys' fees. For example, defendants may challenge the plaintiff attorneys' claims that they charge reduced rates for non-economic reasons, and this might include a claim that under no circumstances would that particular plaintiff's attorney ever command the rates he or she requests. Defendants also may challenge the plaintiff attorneys' claims as to their competence, experience, reputation, or performance in the instant case. Finally, defendants may challenge plaintiff attorneys' market data, in an effort to show that the submitted market rates are inaccurate.

B. The Claims in this Case

Our review function in this case is limited, for district courts act with a real measure of discretion in granting a fee award under section 1988. See Blum, 465 U.S. at 902 n. 19, 104 S.Ct. at 1550 n. 19 ("A district court is expressly empowered to exercise discretion in determining whether an award is to be made and if so its reasonableness."); Kattan by Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C.Cir.1993) ("A district court's discretion as to the proper hourly rate to award counsel should not be upset absent clear misapplication of legal principles, arbitrary fact finding, or unprincipled disregard for the record evidence."); Copeland v. Marshall, 641 F.2d 880, 901 (D.C.Cir. 1980) (en banc) ("It is common learning that an attorney's fee award by the District Court will be upset on appeal only if it represents an abuse of discretion."). This limited standard of review is "appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.

In this case, plaintiffs clearly met their burden and their requested rates were properly accorded a presumption of reasonableness. Plaintiffs submitted their counsels' declarations attesting that they charged below-market rates for non-economic, public-spirited reasons.19 Plaintiffs submitted data demonstrating their attorneys' experience in the legal profession and in litigating complex federal court cases, as well as information probative of their attorneys' skill and reputation. Finally, plaintiffs submitted a great deal of evidence regarding prevailing market rates for complex federal litigation. This included the Laffey matrix, the U.S. Attorney's Office matrix, affidavits attesting to increases in the market rates since the original Laffey matrix, and memorandum opinions in district court cases which relied on these matrices.

The District, on the other hand, submitted little in rebuttal. First, the District attempted to challenge plaintiffs' requested hourly rates by suggesting that these rates were higher than the established billing rates of attorneys who litigate complex federal cases. In support, the District submitted a single declaration from an Assistant Deputy in its office recounting cases which, for the most part, were inapposite to the case at bar: attorneys in a majority of those cases never requested fees at prevailing market rates; nor did they suggest that they charged below-market rates for non-economic reasons; rather they simply sought the rates at which they typically billed clients. See Zielinski Declaration at 3-8, J.A. at I-219-24. One of the attorneys mentioned in Zielinski's declaration requested and received prevailing market rates in line with the Laffey matrix. See id. at 8, J.A. at I-224; Fischbach v. District of Columbia, Civ. Action No. 87-0646 (D.D.C. Jan. 3, 1993), J.A. at I-254. Simply put, although the District does not bear the ultimate burden in this case, its evidence did not come close to rebutting the presumption of reasonableness plaintiffs established. The District Court therefore correctly "rel[ied] solely upon plaintiffs' unrebutted evidence." Covington, 839 F.Supp. at 900.

Second, the District attempted to argue that plaintiffs are only entitled to the rates they regularly charge, i.e., that these rates are in fact the prevailing market rates. This argument was considered and rejected by this court in SOCM, and, therefore, merits little attention here. As the SOCM court stated, "[t]he result sought by plaintiffs, that is a fee award based on prevailing market rates rather than the actual rates of [plaintiffs' attorneys], is not only not inconsistent with the express intent of Congress, but rather accomplishes Congress' express goals."20 857 F.2d at 1521. Thus, the en banc court concluded: "Henceforth, the prevailing market rate method heretofore used in awarding fees to traditional for-profit firms and public interest legal services organizations shall apply as well to those attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals." Id. at 1524. The District Court properly dismissed the District's argument that plaintiffs are only entitled to an award based on the fees their attorneys routinely charge clients.

Finally, the District argues that the court should define the relevant market, for purposes of determining the prevailing market rates, narrowly, as including only plaintiff attorneys in civil rights, employment, or discrimination actions. Covington, 839 F.Supp. at 897. The District Court rejected this narrow definition, noting that the District failed to show that a civil rights and employment discrimination market actually exists independent of attorneys who handle other types of complex federal litigation. Id. at 898 n. 8. And even assuming, arguendo, the existence of such a submarket, the trial court found no evidence that submarket rates are lower than the prevailing rates in the broader legal market. Id. at 898. The District only weakly challenges this determination on appeal,21 so we are hard-pressed to find even a compelling argument to address.

The Senate Report accompanying the enactment of section 1988 suggests that Congress envisioned rates to be set according to standards in other types of complex federal litigation: "It is intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights may be nonpecuniary in nature." Blum, 465 U.S. at 893, 104 S.Ct. at 1546 (quoting S.REP. No. 1011, 94th Cong., 2d Sess. 6 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5913).22 The point is that "Congress after all did not simply express its intent that the fees would attract counsel, but rather that they would be `adequate to attract competent counsel.'" SOCM, 857 F.2d at 1521 (quoting S.REP. No. 1011 at 6, U.S.Code Cong. & Admin.News 1976, at 5913).

In short, we can find no basis to overturn the District Court's determination that the relevant market is that of complex federal litigation.

III. CONCLUSION

For the foregoing reasons, we hold that the District Court did not abuse its discretion in awarding plaintiffs reasonable attorneys' fees in these consolidated cases.

So ordered.

KAREN LeCRAFT HENDERSON, Circuit Judge, dissenting:

The Supreme Court has made clear that federal fee shifting statutes "were not designed as a form of economic relief to improve the financial lot of lawyers." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986). The majority nonetheless affirms fee awards totalling nearly $664,000 in public funds calculated on the basis of premium hourly rates. I respectfully dissent because none of the plaintiffs has demonstrated as required by our previous opinions that the rates awarded prevail for the type of work performed or that the rates their lawyers have historically been able to secure from paying clients are not determinative of a "reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984).

The majority recognizes that a fee applicant bears the burden of justifying the reasonableness of his requested hourly rate by showing "at least three elements: the attorneys' billing practices; the attorneys' skill, experience, and reputation; and the prevailing market rates in the relevant community." Maj.Op. at 1107. In my view, however, it does not follow our precedent prescribing the evidence necessary to meet that burden with respect to at least two of the elements.1 First, "[a]n applicant is required to provide specific evidence of the prevailing community rate for the type of work for which he seeks an award." National Ass'n of Concerned Veterans v. Secretary of Defense (NACV), 675 F.2d 1319, 1325 (D.C.Cir.1982) (emphasis added); see also Blum, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11; Copeland v. Marshall, 641 F.2d 880, 892 (D.C.Cir.1980) (en banc) ("The reasonable hourly rate is that prevailing in the community for similar work."). The applicants have not met this burden because they rest their applications entirely on evidence of rates in the broad market of "complex federal litigation" that provides no basis for the district court2 to determine the rate prevailing for the specific type of work performed by them.

The applicants chiefly rely on adjusted versions of the fee matrix developed more than ten years ago 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); cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985). We have not considered whether the broad Laffey matrix constitutes "specific evidence" of rates charged for "similar"3 work performed irrespective of the nature of the litigation. In my view the Laffey matrix cannot do so where, as here, the litigation is of a discrete type that appears to generate its own range of rates. For example, as demonstrated by the evidence submitted by the District of Columbia (District), "the hourly rates ... in the Laffey matrix are substantially higher than the hourly rates charged by similarly experienced attorneys who litigate employment discrimination, civil rights and other types of damages actions in the courts of the District of Columbia." Joint Appendix (JA) I-218.4

In my view, the district court in Covington correctly outlined the type of specific evidence required to fulfill the burden prescribed by NACV:

Covington v. District of Columbia, 839 F.Supp. 894, 899 (D.D.C.1993) (emphasis in original).

Where the district court committed error, however, was in placing the burden of proof on the District, not the applicants.5 Because the applicants have failed to submit evidence that carries their burden under NACV, the fee awards are in my view based on a "clear misapplication of legal principles" requiring reversal. Kattan by Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C.Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1398, 128 L.Ed.2d 71 (1994). Although the majority affirms the district court's reasoning that the applicants are nonetheless entitled to the matrix-based rates they claim simply because "[t]he District ... submitted little in rebuttal," Maj.Op. at 1110,6 the sufficiency of the District's rebuttal is relevant only if the applicants first meet their burden.

Second, in Sexcius and Galloway, the district court did not give full effect to our precedent requiring it to consider the rates customarily charged by counsel to their paying clients for whom they have not reduced their rates in the public interest. The court in NACV explained

675 F.2d at 1326 (emphasis added, footnotes omitted). In Sexcius, counsel attested to a maximum quoted rate of $187.50 per hour. JA II-71. In Galloway, counsel indicated that the maximum rate she had been able to command was $200 per hour. JA III-51. Neither indicated that those rates had been reduced for non-economic reasons. Although the court in SOCM held that a lawyer in private practice who reduces his customary rate is not normally limited to that reduced hourly rate in fee awards, the SOCM court did not alter the significance under NACV of the full, non-reduced, rate charged by counsel to other clients.7

Together, NACV and SOCM instruct that a lawyer's usual hourly rate remains the most probative evidence of a reasonable rate to award him under a fee-shifting statute unless that rate does not fairly reflect the value of his services because it is a "reduced rate[] reflecting non-economic goals." SOCM, 857 F.2d at 1524; see also NACV, 675 F.2d at 1326; Goos v. National Ass'n of Realtors, 997 F.2d 1565, 1569 (D.C.Cir.1993); Kattan, 995 F.2d at 278 (noting "an attorney's usual billing rate is presumptively the reasonable rate"). Resort to a matrix to determine a reasonable rate is thus appropriate only if a lawyer's ordinary rate is so reduced; and, if so used, the matrix must be based on "specific evidence" of "the type of work" for which the lawyer seeks an award. NACV, 675 F.2d at 1325.

I would reverse the district court's conclusion that leap-frogged over the applicants' burden and declared instead that the District had failed to meet its burden, thereby leaving it, in its view, no alternative but to grant the applicants' requests. See, e.g., Covington, 839 F.Supp. at 898. Fee applicants are required to do more than simply ask for an award authorized by statute; they must meet a factually demanding burden. The record contains no evidence that the maximum rates previously charged by the Sexcius counsel and by Golden in Galloway had been so reduced, making their customary rates the presumptive bases for fee awards to them. Goos, 997 F.2d at 1568-69; Kattan, 995 F.2d at 278. There is, however, insufficient evidence to evaluate the claims of the other lawyers and law students who participated in the consolidated cases.8 Accordingly, I would remand to the district court to determine whether each counsel has established a customary, non-reduced rate; if so, that rate should provide the basis of a fee award. I would further instruct the district court to determine a reasonable hourly rate for those lawyers who have not established such a rate. Its determination should be made on the basis of detailed evidence of the type it has already described so well. Covington, 839 F.Supp. at 899.