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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-AA-199

             TENANTS OF 710 JEFFERSON STREET, NW, PETITIONERS,

                                        v.

      DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, RESPONDENT,

                                       and

                          STEVEN LONEY, INTERVENOR.


                   On Petition for Review of a Decision of the
               District of Columbia Rental Housing Commission
                                   (SR-20,089)

(Argued June 4, 2014                                   Decided August 20, 2015)

     Paul M. Smith, with whom Melissa A. Cox, Esteban M. Morin, and Ann K.
Wagner were on the brief, for petitioners.

       Donna M. Murasky, Senior Assistant Attorney General for the District of
Columbia, with whom Irvin B. Nathan, Attorney General for the District of
Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren
L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.
      Roger D. Luchs for intervenor.


      Before FISHER and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
      Opinion for the court by Senior Judge RUIZ.
                                         2

      Opinion by Associate Judge FISHER, dissenting in part, at page 45.


      RUIZ, Senior Judge: This is the second time this case comes before the court

on a petition for review of a decision of the District of Columbia Rental Housing

Commission (“the Commission”). In the first appeal we upheld the Commission‟s

decision denying a substantial rehabilitation petition filed by Steven Loney, the

owner of a fourteen-unit residential building at 710 Jefferson Street, Northwest

(“the Landlord”), that was opposed by the tenants of the building (“the Tenants”).

Loney v. District of Columbia Rental Hous. Comm’n, 11 A.3d 753 (D.C. 2010), en

banc reh’g denied Feb. 17, 2011.       However, we reversed the Commission‟s

calculation of attorney‟s fees for work performed by The Legal Aid Society of the

District of Columbia (“Legal Aid”) in its successful representation of the Tenants

in the administrative proceedings and remanded the case for further consideration

of the attorney‟s fees award. See id. at 759-61. The Tenants subsequently filed a

motion in this court requesting fees for Legal Aid‟s work on the first appeal and on

the response to the Landlord‟s en banc petition, which we referred to the

Commission for an initial recommendation.        The petition for review we now

consider is brought by the Tenants who contest the Commission‟s reduction of the

attorney‟s fees requested for Legal Aid‟s work done in the first appeal before the

court and on remand before the Commission following that appeal.
                                          3



      The Commission discounted the proposed hourly rates, which were based on

the Laffey Matrix, by about twenty percent and also reduced Legal Aid‟s hours-

expended calculation. We conclude that the Commission erred in lowering the

Laffey-derived rates, and that it abused its discretion in shaving the hours Legal

Aid reasonably expended in representing the Tenants. Accordingly, we reverse the

Commission‟s fee award for Legal Aid‟s representation in the remand proceeding

and do not adopt the Commission‟s recommendation for fees for Legal Aid‟s

representation of the Tenants before the court. Tenants are awarded attorney‟s fees

in the amount of $30,798.80 for work performed by Legal Aid in connection with

the first appeal and subsequent remand.




                                I. BACKGROUND



      The facts and procedural background of the underlying administrative case

are set out in our opinion in the first appeal, Loney, 11 A.3d 753, so we provide

only the facts and procedural history relevant to the issues concerning attorney‟s

fees that are now before us. On August 6, 2004, the Landlord filed a substantial

rehabilitation petition for his 14-unit apartment building, which would have

allowed an increase in the rent charged to the Tenants. After a hearing examiner of
                                         4

the Housing Regulation Administration, Rental Accommodations and Conversion

Division (the “RACD”) granted the petition on July 28, 2005, the Tenants

appealed.    The Commission reversed the hearing examiner‟s decision on

September 3, 2008, denied the landlord‟s petition, and awarded attorney‟s fees to

the Tenants. Landlord petitioned for review by this court of the Commission‟s

order denying Landlord‟s substantial rehabilitation petition, and the Tenants cross-

petitioned, challenging the amount of the Commission‟s attorney‟s fee award.



      On September 23, 2010, we affirmed the Commission‟s order denying the

Landlord‟s substantial rehabilitation petition but reversed and remanded its

decision on the attorney‟s fee award.        We concluded that, contrary to the

Commission‟s order, the Commission had jurisdiction to award attorney‟s fees for

work performed before the hearing examiner. See id. at 759-60. Additionally, we

held that the Commission abused its discretion in rejecting the proposed hourly

rate of $225, based on the Laffey Matrix,1 and adopting, instead, the $125 fee

provided in the Equal Access to Justice Act (“EAJA”) applicable to certain civil


      1
           Laffey Matrix 2003-2014, U.S. Attorney‟s Office for the District of
Columbia,       available    at    http://www.justice.gov/usao/dc/divisions/Laffey_
Matrix%202014.pdf. The Laffey Matrix has its origins in the case Laffey v. Nw.
Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d in part on other grounds, 746
F.2d 4 (D.C. Cir. 1984).
                                         5

actions brought by or against the United States Government, 28 U.S.C. § 2412

(d)(2)(A). See id. at 760. Because the Landlord did not contest the Tenants‟

proposed hourly rate or submit alternative hourly rates, and because the

Commission‟s only rationale for sua sponte applying EAJA rates was that it “has

traditionally used” those rates “without any consideration of the Frazier [v.

Franklin Inv. Co., 468 A.2d 1338, 1341 n.2 (D.C. 1983)] factors,” we concluded

that “rejection of the [T]enants‟ proposed rate[s] constituted an abuse of

discretion.” Loney, 11 A.3d at 760.



      Accordingly, we “remand[ed] for further consideration of the [T]enants‟

proposed hourly rate for attorney‟s fees . . . and to provide the [T]enants with an

opportunity in which to present their claim for attorney‟s fees for work performed

before the hearing examiner.” Id. at 760-61. We noted that the Tenants “could

provide more evidence to support the Laffey Matrix as the appropriate rate—for

example, expert testimony or affidavits regarding rates charged by attorneys for

similar work in the District of Columbia.” Id. at 761 n.5.



      Following the issuance of our opinion in Loney, the Tenants filed a motion

in this court requesting attorney‟s fees for legal work performed by Legal Aid on

the first appeal (briefing and oral argument), which it supplemented with the
                                         6

additional fees associated with responding to the Landlord‟s petition for rehearing

en banc. The Landlord opposed the request. On April 20, 2011, we issued an

order referring the Tenants‟ request for fees to the Commission “for calculation of

the reasonable number of hours and hourly rate the agency recommends be

awarded.”2



      On remand before the Commission, the Tenants requested $28,350 for Legal

Aid‟s representation before the RACD and the Commission during the

administrative proceedings, and presented the request for $27,752.75 that had been

submitted to the court for work performed in connection with the first appeal to

this court.3   In a supplemental motion, the Tenants requested an additional

$6,033.75 for work done by Legal Aid before the Commission pursuant to this

court‟s remand.


      2
         We referred the Tenants‟ motion to the Commission for a recommendation
pursuant to our decision in District of Columbia Metro. Police Dep’t v. Stanley,
951 A.2d 65, 67-68 & n.13 (D.C. 2008), in which we held that “in cases where a
party seeks to recover statutorily authorized attorney‟s fees for work completed on
an appeal to this court, the request normally should be submitted to the trial court
in which the proceeding arose.” By analogy, where the case is a petition for
review of an administrative decision, the fee petition is initially referred to the
agency where the proceedings were initiated.
      3
         Of the $27,752.75 requested, $21,013.35 was for briefing the appeal and
oral argument and the remainder for opposing the Landlord‟s petition for rehearing
en banc.
                                          7



      In support of their fee requests, the Tenants submitted an affidavit from Julie

Becker, the lead attorney in the appeal, which set out the education and

professional experience of the Legal Aid attorneys involved in the case and

detailed billing entries for work done on appeal and on remand, broken down by

stage of the litigation (appeal, response to petition for rehearing, remand before

Commission), attorney, date, time expended and description of the work

performed.4     As Legal Aid represents indigent clients and does not have

established billing rates, the Tenants proposed that in calculating the attorney‟s fee

award, the hourly rate should be based on the Laffey Matrix.5           The Tenants

provided six affidavits from attorneys who practice in the District of Columbia

who attested to the reasonableness of the Laffey rates for work performed by Legal

Aid in this case.6


      4
        Legal Aid Executive Director Eric Angel, and Legal Aid attorneys Julie
Becker, Bonnie Robin-Vergeer and John Keeney.
      5
        The proposed hourly rates, following the Laffey Matrix, ranged from $335
to $420 for work done during the 2010 appeal, $420 to $475 for work performed in
opposing the rehearing en banc petition in 2010, and $435 to $495 for legal work
on remand following the appeal in 2011-12.
      6
        Legal Aid submitted affidavits from David J. Cynamon, Charles G. Cole,
George H. Mernick, Stephen J. Harburg, Philip W. Horton and Paul J. Kiernan.
Cynamon‟s affidavit stated that he was a partner at Pillsbury Winthrop Shaw
Pittman LLP and has been practicing “complex civil litigation of all types,
                                                          (continued . . .)
                                         8


      On June 6, 2012, the Commission issued an order in which it approved an

award of $22,162.50 for work done in the administrative proceedings prior to the

2010 petition for judicial review that led to the first appeal.7 With respect to the

work done in connection with the appeal to this court and the subsequent remand,

the Commission reduced the hours claimed by twenty percent. As to the hourly

(. . . continued)
including real estate litigation,” in the District of Columbia since 1973.
Harburg‟s affidavit stated that he was a partner at Skadden, Arps, Slate, Meagher
and Flom LLP and that he specialized in “complex litigation at both the trial court
and appellate court levels.” According to Cole‟s affidavit, Cole was a partner at
Steptoe & Johnson LLP and leader of its Appellate Practice Group. Mernick‟s
affidavit stated that he was a partner at Hogan Lovells US LLP, and that he has
been practicing for thirty-one years in the District of Columbia “litigating matters
before federal and state courts, administrative bodies and arbitrators.” According
to Horton‟s affidavit, Horton was a partner at Arnold & Porter LLP and a senior
member of the firm‟s Litigation and Telecommunications Practice Groups, and he
has been a member of the District of Columbia bar since 1984. Kiernan‟s affidavit
stated that he was a partner in the Litigation Section of Holland & Knight LLP
with over twenty years of practice in the District of Columbia, and that his
“practice has focused on real-estate disputes and commercial litigation.” They
each attested to the reasonableness of the Laffey rates in this litigation and opined
that they were lower than would have been charged in their respective firms.
      7
         The Commission reduced by twenty-two percent the hours claimed by
Legal Aid attorneys for time spent on the RACD proceedings, but did not make
any reductions for time spent on proceedings before the Commission because those
hours were uncontested. Landlord also did not contest the Tenants‟ proposed
hourly rates, based on the Laffey Matrix, for work performed in the administrative
proceedings before the petition for judicial review. The Commission awarded fees
based on the Laffey-derived rates. The award of these fees is not challenged by
Tenants.
                                         9

rates in the Tenants‟ request, the Commission noted that the Landlord did not

dispute the proposed hourly rate for Becker‟s work on the appeal, which was $335

based on the Laffey Matrix. However, the Landlord did dispute the hourly rates

for the work performed by Becker and the other Legal Aid attorneys in responding

to the Landlord‟s petition for rehearing en banc and in litigating the case on

remand before the Commission, even though they were similarly based on the

Laffey Matrix.8



      The Commission was not persuaded by the affidavits submitted supporting

the reasonableness of the Laffey rates. According to the Commission, “each of the

attorneys who submitted an affidavit practices at a large multi-regional, or multi-

national, law firm that typically do not represent clients under the [Rental Housing]

Act before the Commission,” and “[s]uch large law firms customarily have billing

rates which are among the higher or highest levels in this jurisdiction.” The

Commission further noted that “[Legal Aid] provide[d] no evidence to refute

[Landlord‟s] counsel‟s claim that their lengthy experience in litigating claims

under the Act and their lower fees than a number of [Legal Aid‟s] proposed rates

      8
        The Landlord argued that the Tenants‟ proposed Laffey-derived rates were
excessive because they were higher than Landlord‟s counsel‟s own rate of $375
per hour, and on par with the $450 hourly rate charged by two senior attorneys at
Landlord‟s counsel‟s firm, Greenstein, Delorme & Luchs, P.C., who had more
years of experience than some of Legal Aid‟s attorneys such as Becker.
                                         10

clearly support the existence of a distinct specialized practice in, and market for,

rent control and rental housing under the Act.” As a result, the Commission

ordered both parties to submit affidavits on prevailing hourly rates from attorneys

of comparable experience “who are ordinarily and customarily engaged in the

practice of litigating actions in the „specialized‟ field of rent control and rental

housing under the Act similar to the instant case.”



      Pursuant to the Commission‟s order, the Tenants submitted an affidavit from

Erik Von Salzen, a real estate attorney with more than forty years of experience,

who stated that his hourly rate as of counsel at McLeod, Watkinson & Miller LLP

for “rent control and similar work” was $400. Von Salzen also stated that when he

was of counsel at Hogan & Hartson LLP (now Hogan Lovells), he charged an

hourly rate of $550. The Landlord submitted affidavits from Carol Blumenthal and

Bernard Gray. Blumenthal‟s affidavit stated that she has practiced law for more

than thirty years representing both landlords and tenants in administrative

proceedings, and that she charged $295 per hour. Gray‟s affidavit stated that he

has been practicing for thirty-four years and regularly represented landlords and

tenants, and that he charged $250 per hour.



      The Commission issued a second order on attorney‟s fees on January 29,

2013. The Commission first noted that in calculating the award of attorney‟s fees
                                        11

for the work done before the RACD, it had been “persuaded by [Legal Aid‟s] legal

arguments and evidence that the Laffey Matrix provides an appropriate standard

for setting hourly rates for a [Legal Aid] attorney‟s representation before RACD,

the Commission and the DCCA.” When it came to fees for work by Legal Aid

attorneys before the court on appeal and on remand to the Commission, however,

the Commission ruled that it “must further determine the „reasonableness‟ of a

proposed hourly rate from the Laffey Matrix by assessing the prevailing hourly

billing rates for attorneys of comparable experience practicing in the „specialized

field‟ of rent control and rental housing under the Act.”          Ultimately the

Commission found that the Tenants had not borne their burden of supporting that

the Laffey rates were “presumptively or automatically reasonable, without the

further possibility of adjustments to be made by the Commission in accordance

with its well-settled fee standard.” The Commission concluded that substantial

evidence did not support that Laffey rates were reasonable rates for attorneys of

comparable experience in the specialized field of rent control and rental housing

under the Act. The Commission commented that Von Salzen, Blumenthal and

Gray were among the most experienced attorneys “in the specialized field of rent

control in this jurisdiction.” Specifically, the Commission found that Von Salzen‟s

$550 hourly rate when he was practicing at Hogan & Hartson reflected the higher

end of rates for real estate attorneys, given that Hogan & Hartson (now Hogan
                                          12

Lovells) is a prominent law firm in the District of Columbia. The Commission

further noted that the lowest Laffey rate proposed by the Tenants for the least

experienced Legal Aid attorneys ($420) was still higher than Von Salzen‟s current

billing rate ($400) at the smaller firm of McLeod, Watkinson & Miller, and of

attorneys Blumenthal and Gray, who practiced at “considerably smaller” firms.

Therefore, the Commission reduced each of the proposed Laffey-based hourly

rates by approximately twenty percent, resulting in rates ranging from $335 to

$395.



        In the first order, the Commission had awarded $14,023 based on the

undisputed Laffey hourly rate for Becker‟s work on the first appeal. In the second

order, the Commission awarded $9,213 for work performed by Legal Aid attorneys

Angel and Robin-Vergeer in the first appeal before the court and for Legal Aid‟s

representation of the Tenants in opposing the Landlord‟s petition for rehearing en

banc and on remand to the Commission.9            In both orders, the Commission

calculated the lodestar based on the reduced number of hours it approved. The


        9
            The second fees award consisted of:

                First Appeal (Angel and Robin-Vergeer)         2,010
                Response to Petition for Rehearing En Banc     3,279.35
                Proceedings before Commission on remand        3,923.85
                                                              $9,213.20
                                         13

combined total of $23,236 was twenty-seven percent less ($8,660.30) than had

been requested.    The Tenants filed a timely petition for review in this court

challenging the Commission‟s fee award. They ask the court to award fees in the

lodestar amount of $31,896.50 for the 85.55 hours claimed at the hourly rates

established in the Laffey Matrix.



                                    II. ANALYSIS



      A.     Standard of Review



       The parties have slightly different contentions about the standard of review

we should apply.     Petitioners contend that whether the Commission erred in

holding that Laffey rates are not presumptively reasonable, and in setting the

hourly rate according to rates charged by attorneys in the “specialized field of rent

control and rental housing under the Act,” is a question of law we should review

de novo. They argue that the interpretation of what is a “reasonable” award of fees

under D.C. Code § 42-3509.02 is a legal question of statutory interpretation and

that the usual deference to an agency‟s interpretation of a statute entrusted to its

administration should not obtain here, where the court, and not only the agency,

has direct authority to implement its provisions. See Loney, 11 A.3d at 759. They
                                         14

also argue that the court is in a better position to assess reasonableness in a case,

such as this, where the contested fees relate for the most part to legal services

rendered in connection with representation on judicial review by the court.

Respondent‟s brief contends that the Commission‟s determination of what is a

reasonable hourly rate should be reviewed under the customary deferential

standard: whether the decision was arbitrary or capricious and its conclusions

supported by substantial evidence.      At oral argument, however, counsel for

respondent stated that the court could decide to make its own independent decision

in this case where the fees are not for legal work in the administrative proceedings

before the agency.



      We usually review the Commission‟s attorney‟s fees awards for an abuse of

discretion. Hampton Courts Tenants Ass’n v. District of Columbia Rental Hous.

Comm’n, 599 A.2d 1113, 1115 (D.C. 1991). As the Supreme Court has noted,

“[t]his is appropriate in view of the [agency‟s] superior understanding of the

litigation and the desirability of avoiding frequent appellate review of what

essentially are factual matters.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

Nonetheless, “[a]n exercise of discretion must be founded upon correct legal

standards.” Teachey v. Carver, 736 A.2d 998, 1004 (D.C. 1999). To warrant

judicial deference, the exercise of discretion also must be internally consistent and
                                         15

logical such that the agency‟s conclusions flow rationally from its findings. See

Jones v. District of Columbia Dep’t of Emp’t Servs., 41 A.3d 1219, 1225 (D.C.

2012) (“Discretion there may be, but methodized by analogy, disciplined by

system . . . . Discretion without a criteria for its exercise is authorization of

arbitrariness.” (citations and internal quotation marks omitted)).



      With respect to the Commission‟s calculation of the reasonable hours

expended, the Tenants contest only the reduction of hours for work performed

before this court in the first appeal.10 While we normally review factual findings

such as “what work counsel performed” and “whether that work was necessary and

appropriate” for an abuse of discretion, District of Columbia Metro. Police Dep’t v.

Stanley, 951 A.2d 65, 67 (D.C. 2008), in reviewing the Commission‟s

recommendation11 with respect to attorney‟s fees for work performed in this court,

our usual deference is tempered because the Commission was not “intimately

familiar with the . . . documents filed” in that appellate litigation and was not able



      10
         Tenants do not take issue with the Commission‟s reduction of hours
expended by Legal Aid in litigating before the Commission pursuant to this court‟s
remand order.
      11
        In ordering the award of fees for legal work performed before this court
the Commission went beyond the scope of this court‟s referral, which asked for a
recommendation to the court.
                                         16

to “observe[] the proficiency of counsel in court.” Hampton Courts, 599 A.2d at

1117 (quoting Copeland v. Marshall, 641 F.2d 880, 901 (D.C. Cir. 1980)).



      For the reasons that follow, we decide that whether our review is de novo or

for abuse of discretion, the Commission‟s order rejecting the Laffey rates as

presumptively reasonable and reducing the number of hours to be compensated

must be reversed.



      B.     Fee Awards Under the Rental Housing Act



      The Rental Housing Act of 1985 (“the Act”) provides that the “Rent

Administrator, Rental Housing Commission, or a court of competent jurisdiction

may award reasonable attorney‟s fees to the prevailing party in any action under

this chapter . . . .” D.C. Code § 42-3509.02 (2012 Repl.). “[T]he purposes of the

attorney‟s fee provision are to encourage tenants to enforce their own rights, in

effect acting as private attorneys general, and to encourage attorneys to accept

cases brought under the Rental Housing Act of 1980.”          Ungar v. District of

Columbia Rental Hous. Comm’n, 535 A.2d 887, 892 (D.C. 1987). There is no

dispute the Tenants have prevailed in this litigation and that they are presumptively

entitled to attorney‟s fees under the Act. See id. The only issue is how the fees
                                          17

should be calculated where the legal work is performed by an organization such as

Legal Aid, which has no established hourly billing rates that can be used as a

measure of what is a “reasonable” rate.



      Regulations implementing the Act require that the fee award be determined

first by calculating the “lodestar,” which is the “number of hours reasonably

expended on a task multiplied by a reasonable hourly rate.” 14 DCMR § 3825.8

(a) (“The starting point shall be the lodestar . . . .”). The Commission or other fee-

calculating body then “may” adjust the lodestar up or down after considering the

following list of factors:



             (1) the time and labor required; (2) the novelty,
             complexity, and difficulty of the legal issues or
             questions; (3) the skill requisite to perform the legal
             service properly; (4) the preclusion of other employment
             by the attorney, due to acceptance of the case; (5) the
             customary fee or prevailing rate in the community for
             attorneys with similar experience; (6) whether the fee is
             fixed or contingent; (7) time limitations imposed by the
             client or the circumstances; (8) the amount involved and
             the results obtained; (9) the experience, reputation, and
             ability of the attorney; (10) the undesirability of the case;
             (11) the nature and length of the professional relationship
             with the client; (12) the award in similar cases; and (13)
             the results obtained, when the moving party did not
             prevail on all the issues.
                                         18

14 DCMR § 3825.8 (b) (2015).12




      C.     Reasonable Hourly Rates



      The lodestar method, as adopted by regulations promulgating the Act, is the

method used to calculate attorney‟s fees under other statutory fee-shifting

provisions, including those contained in federal and District of Columbia civil

      12
          These factors are nearly identical to the twelve factors that we adopted in
Frazier v. Ctr. Motors, Inc., 418 A.2d 1018, 1025 (D.C. 1980), as part of the
analysis when setting a “reasonable” fee award. The Frazier factors are: (1) time
and labor required; (2) the novelty and difficulty of the question; (3) the skill
requisite to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and the results obtained; (9)
the experience, reputation, and ability of the attorneys; (10) the “undesirability” of
the case; (11) the nature and length of the professional relationship with the client;
and (12) awards in similar cases. See id.

      At the time of the Frazier decision, we had not yet adopted the lodestar
method. After adopting the lodestar method in District of Columbia v. Hunt, 525
A.2d 1015, 1016 (D.C. 1987) (per curiam), we noted that the Frazier factors are
often subsumed within the initial calculation of the reasonable rate and hours
expended, instead of being used as a basis for adjusting the lodestar amount.
Hampton Courts, 599 A.2d at 1115 n.8 (citing Hensley, 461 U.S. at 434 n.9).

      In this case the Commission did not make any upward or              downward
adjustments to the “lodestar” amount, which was calculated as the         reasonable
hourly rate (as determined by the Commission) multiplied by the           reasonable
number of hours (as reduced by the Commission) expended. See              14 DCMR
§ 3825.8 (a)-(b).
                                       19

rights statutes such as 42 U.S.C. § 1988 and D.C. Code § 2-1402.01 (2012 Repl.).

Case law on fee awards under those statutes provides useful guidance for

determining the appropriate standard for determining a reasonable hourly rate in

this case.



      The Supreme Court in a case concerning a § 1988 fee award rejected the

argument that an alternate method (specifically, a cost-based method) should be

applied when calculating fee awards to nonprofit legal services organizations such

as Legal Aid. See Blum v. Stenson, 465 U.S. 886, 895 (1984). Relying on Blum,

we also have held that “[t]he identity of the party against whom the fees will be

charged, i.e., individual vs. governmental defendants, or whether representation

was provided by private or nonprofit counsel is irrelevant.” Henderson v. District

of Columbia, 493 A.2d 982, 1000 (D.C. 1985). Accordingly, in calculating the

lodestar amount in this case, the “reasonable hourly rate” should be measured by

the same standard used for calculating fee awards to counsel in private practice:

the “prevailing market rates in the relevant community for attorneys of similar

experience and skill.” Hampton Courts, 599 A.2d at 1118 (quoting District of

Columbia v. Jerry M., 580 A.2d 1270, 1281 (D.C. 1990)).
                                         20



      The reason for this standard, we have said, is that “it is important that

attorneys who are willing to take on civil rights and other public interest work are

adequately compensated, or it will be difficult to find competent counsel to handle

this important job.” Lively v. Flexible Packaging Ass’n, 930 A.2d 984, 988 (D.C.

2007). “The goal, [therefore], is to attract competent counsel for these cases, but

not to provide them with windfalls.” Id. (citations omitted).



      “[A] fee applicant‟s burden in establishing a reasonable hourly rate entails a

showing of at least three elements: [1] the attorneys‟ billing practices; [2] the

attorneys‟ skill, experience, and reputation; and [3] the prevailing market rates in

the relevant community.”13 Covington v. District of Columbia, 57 F.3d 1101, 1107

(D.C. Cir. 1995) (citing Blum, 465 U.S. at 896 n.11). Once the fee applicant has

met its initial burden, “the burden then would fall on the landlord „to go forward

with evidence that the rate is erroneous.‟” Hampton Courts, 599 A.2d at 1118 n.17

(quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1326

(D.C. Cir. 1982)). “And when the [respondent landlord] attempts to rebut the case

      13
        The first two elements are amply supported by the Tenants‟ fee request.
The Legal Aid attorneys‟ credentials and professional competence are undisputed.
The Commission noted that “each of the [Legal Aid] attorneys provided the
Tenants with a high quality of legal services.” The court concurs with that
assessment.
                                         21

for a requested rate, it must do so by equally specific countervailing evidence.”

Concerned Veterans, 675 F.2d at 1326.



      Here, Tenants provided affidavits setting out the educational background

and professional experience of the Legal Aid attorneys who worked on the case

and, because Legal Aid does not charge its clients, who are indigent, it proffered

the Laffey rates “as the prevailing market rates.” The Commission, however,

rejected the Laffey Matrix as a standard because it does not reflect rates charged by

attorneys in the submarket of rental housing litigation. The Tenants argue that

rates derived from the Laffey Matrix are presumptively reasonable in the District

of Columbia, and that the Commission erred when it defined the “relevant

community” not as lawyers practicing in the District of Columbia but, more

narrowly, as comprised of attorneys who practice rental housing litigation in non-

major law firms and, more narrowly still, as those practicing in small firms. We

agree with the Tenants that, where the attorney work to be compensated is not

regularly billed, Laffey rates are a presumptively reasonable measure of billing

rates in the District of Columbia.



      The Laffey Matrix is a fee schedule of hourly rates for attorneys practicing

in the District of Columbia, broken down by years of experience. It is compiled
                                           22

and published by the Civil Division of the United States Attorney‟s Office for the

District of Columbia and is updated annually to reflect changes in the cost of

living.14 The Laffey Matrix is “regularly used in the federal courts of this

jurisdiction to determine attorneys‟ fees where, as here, there is a statutory

entitlement.” Lively, 930 A.2d at 988-89. The federal government‟s announced

policy is that it will not contest the award of fees based on the Laffey Matrix in

cases where certain fee-shifting statutes provide for attorney‟s fees to the

prevailing party. See Novak v. Capital Mgmt. & Dev. Corp., 496 F. Supp. 2d 156,

159 (D.D.C. 2007). This concession that the fees are reasonable when they will be

paid out of the public fisc is a significant indicator that the fees are not excessive or

out of tune with the market.15        Laffey-derived rates have also been used to

calculate the lodestar for attorney‟s fees in private litigation in the courts of the

District of Columbia. See, e.g., Campbell-Crane & Assocs., v. Stamenkovic, 44

A.3d 924, 947-48 (D.C. 2012) (noting that trial court resorted to Laffey Matrix in

determining reasonable rates based on lawyers‟ experience); Lively, 930 A.2d at

      14
          Laffey-Matrix - 2003-2014, U.S. Attorney‟s Office for the District of
Columbia,      available    at    http://www.justice.gov/sites/default/files/usao-
dc/legacy/2013/09/09/Laffey_Matrix%202014.pdf.
      15
         Courts have suggested that Laffey rates may be lower than the rates large
firms in the District of Columbia command, as supported by the affidavits
submitted by the Tenants. See Heller v. District of Columbia, 832 F. Supp. 2d 32,
48 n.14 (D.D.C. 2011). The Commission, however, seemed to think that the
Laffey Matrix reflected rates at the higher echelons.
                                         23

990 (accepting the Laffey Matrix “as one legitimate means of calculating

attorney‟s fees in those cases, such as this, where a prevailing party is statutorily

entitled to attorneys fees”).   And, as the Commission acknowledged, Laffey-

derived rates have been used by the Commission to award attorney‟s fees under the

Act. Indeed Laffey rates were used in this case without objection in calculating the

award of fees for Legal Aid‟s work in the administrative proceedings and for

Becker‟s work on the first appeal. Against this background, the Commission‟s

conclusion that Laffey rates are not a presumptively reasonable measure of hourly

rates in the District of Columbia fights principles established in caselaw and its

own previous actions in this case applying Laffey rates.



      The Commission also erred in veering from basing the lodestar on prevailing

rates in the District of Columbia to what it considered the prevailing rate in the

“specialized submarket” of rent control litigation under the Act. The bulk of the

attorney‟s fees award that is challenged in this appeal was for legal representation

in the first appeal and on remand before the Commission following that appeal. In

the first appeal, a knowledge of the substance of rent control law and, in particular,

substantial rehabilitation petitions, was necessary, but it was equally necessary to

have knowledge of proper standards of review in judicial review of administrative

proceedings and to possess appellate skills—researching, briefing and preparing
                                           24

for and presenting oral argument.16 Moreover, the proceedings on remand had

nothing to do with rent control law at all, but with the proper calculation of the

award of attorney‟s fees.        Therefore, the apparent factual premise for the

Commission‟s focus on a “specialized submarket” that the fees were for lawyers

engaged in rent control litigation is not applicable to the fees at issue.



      We are also unpersuaded by the Commission‟s reliance on what it describes

as the “well established” interpretation that hourly rates are to be set in accordance

with rates in the specialized submarket for rent control or rental housing litigation,

citing its administrative decisions.17 This court has not heretofore passed on the

Commission‟s interpretation.18 In doing so now, we note that the Commission‟s


      16
          As noted, there is no dispute between the parties that the Laffey-derived
rate the Commission used for Becker‟s work in the first appeal was reasonable. It
is only the hourly rates for Legal Aid attorneys Angel and Robin-Vergeer that are
in contention, as well as the rates for legal representation opposing the petition for
rehearing en banc and on remand before the Commission.
      17
         Hampton Courts Tenants’ Ass’n v. William C. Smith Co., CI 20,176
(RHC July 20, 1990); Reid v. Sinclair, TP 11,334 (RHC Sept. 1, 1988).
      18
         In its order and brief to this court the Commission incorrectly states that
the court has approved the Commission‟s use of a submarket approach, citing
Hampton Courts, 599 A.2d 1113. But the court‟s opinion in that case does not
even mention, let alone approve, a specialty submarket approach to the
determination of what is a reasonable hourly rate. Rather, the court‟s opinion deals
primarily with the Commission‟s determination that the number of hours claimed
as having been expended in the representation were “far in excess of what
                                                                (continued . . .)
                                        25

administrative interpretation implements a statute that authorizes the court—not

only the agency—to award attorney‟s fees for any stage of the proceeding. See

Loney, 11 A.3d at 759. Thus, although the factual question of what constitute

reasonable attorney‟s fees in a particular case may be entrusted to agency

discretion, the threshhold issue whether Laffey rates are presumptively reasonable

in the District of Columbia is not a matter that has been entrusted exclusively to

agency discretion nor is it one as to which the Commission has greater expertise

than the court. See District of Columbia Office of Human Rights v. District of

Columbia Dep’t of Corr., 40 A.3d 917, 923 (D.C. 2012) (quoting United States

Parole Comm’n v. Noble, 693 A.2d 1084, 1098 (D.C. 1997), adopted on reh’g, 780

A.2d 85 (D.C. 1998) (en banc) (noting that where the issue “is purely one of law

not involving an agency‟s attention to gaps or ambiguities in the statute it

administers or to technical applications, we do not defer to an agency




(. . . continued)
reasonably skilled counsel expended for similar work in rental housing
litigation. . . .”—the concern expressed by the Commission having been that
inexperienced counsel had charged hours spent learning about housing law in the
course of representation. Id. at 1116-18. With respect to hourly rates, the court‟s
opinion quoted a previous opinion for the well-accepted and unremarkable
proposition that reasonable hourly rates should be measured by reference to
“prevailing market rates in the relevant community for attorneys of similar
experience and skill.” Id. at 1118 (quoting District of Columbia v. Jerry M., 580
A.2d 1270, 1281 (D.C. 1990)).
                                         26

interpretation”).19 On the merits, we note that the Commission‟s interpretation is

not grounded on the language of the statute, which refers generally to “reasonable

attorney‟s fees,” D.C. Code § 42-3509.02, as do a number of other fee-shifting

statutes.    Nor does the Commission‟s implementing regulation, 14 DCMR

§ 3825.8 (b), support use of a submarket reference in the lodestar calculation;

rather it appears to disfavor such an approach.20 Thus, even if the Commission‟s

internal interpretation has been around for some time, we reject that it is “well

established” by reference to the governing statute, the agency‟s implementing

regulations or the cases interpreting similar language in fee-shifting statutes. Cf.


            19
               In this regard, it is telling that the Commission‟s submarket approach,
adopted more than twenty-five years ago, fails to take account of subsequent
decisions and guidance from the District of Columbia Circuit that look to the
Laffey Matrix rates as indicative of the rates prevailing in this legal community
and that, as we discuss infra, seriously question the value of and impose strict
requirements on any attempt to set hourly rates by reference to a submarket for
legal specialties.
       20
          The regulation provides that one of the twelve “adjustment factors” to be
applied after the lodestar amount has been calculated is “the customary fee or
prevailing rate in the community for attorneys with similar experience.” 4 DCMR
§ 3825.8 (b)(5). The regulation‟s sequencing of the two steps (lodestar calculation
followed by adjustments to the lodestar) logically implies that the hourly rate used
to calculate the lodestar amount is not based on the community of attorneys “with
similar experience.” The Commission has said that deviations from the lodestar
based on adjustment factors “will be highly unusual,” Reid, TP 11,334 at 19 & n.7,
and it did not purport to adjust the lodestar amount in this case. See supra note 12.
The Commission‟s order of January 29, 2013, acknowledges, however, that it
essentially incorporated this adjustment factor into the initial lodestar calculation,
in contravention of this principle.
                                          27

District of Columbia Office of Human Rights, 40 A.3d at 926 (rejecting agency

interpretation because it “misapplied accepted interpretive criteria in considering

the relevant language in the regulations, its reasoning is logically flawed, and it did

not consider the purpose of an interest award”).



      We should not be understood as saying that the Laffey Matrix must be

applied in every case where the requester has no established rates and that a court

or agency will always err if it selects a different measure that is clearly more

appropriate under the circumstances. But the Laffey Matrix is a very good place to

start, and, we would add, in most cases will be the best place to end lest litigation

over attorney‟s fees overshadow the underlying case. Deviations from the Laffey

Matrix‟s presumptively reasonable measure should not be lightly undertaken and

need to be substantially supported. We adopt the D.C. Circuit‟s caution against

engaging in a submarket analysis when setting fee awards, unless the party

opposing the fee request presents very specific and reliable evidence establishing

the existence of a submarket and the prevailing rates for attorneys practicing within

the submarket. See Covington, 57 F.3d at 1111-12. In Covington, the party

opposing the fee request argued that the relevant market should be defined

narrowly as including only plaintiff‟s attorneys in civil rights, employment, or

discrimination actions.    Id.   The D.C. Circuit declined to define the market
                                        28

narrowly because the opponent had “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. Further, the court noted that

“the trial court found no evidence that submarket rates are lower than the

prevailing rates in the broader legal market.” Id. The opponent in that case had

submitted an affidavit from the then-assistant deputy Corporation Counsel, which

cited seven instances in which lawyers with ten-twenty years of experience

charged an hourly rate of about $150 when representing plaintiffs in civil rights,

employment, or discrimination cases. See Covington v. District of Columbia, 839

F. Supp. 894, 898-99 (D.D.C. 1993). The D.C. Circuit affirmed the district court‟s

finding that this evidence was insufficient.21 See Covington, 57 F.3d at 1111-12.



      21
            The district court provided additional guidelines on what a
“statistically reliable, well-documented, and extensive survey” should contain:

            Such a survey would collect the rates of a statistically
            significant number of lawyers or firms within a legal sub-
            market, convincing the court that the survey‟s scope is
            broad enough to reflect the market faithfully. Such a
            survey would be sufficiently documented with supporting
            affidavits, assuring the court of the accuracy of the
            survey‟s data. Lastly, such a survey would encompass
            both the high rates that large, prestigious law firms in the
            area command for their work in the sub-market and the
            lower rates commanded by others for their work in the
            sub-market.

                                                                (continued . . .)
                                         29



      Thus, even if we were to assume that a submarket analysis could be

appropriate in some cases, this would not be such a case. First, as we have

discussed, the relevant market was not “rent control” litigation but appellate

advocacy and issues of attorney‟s fees. The Tenants submitted six affidavits that

supported the reasonableness of Laffey Matrix rates for the work Legal Aid

performed in the representation of the Tenants in this case. Second, even if rent

control litigation were the appropriate submarket, the evidence the Landlord

submitted to establish the prevailing rates in that submarket was insufficient,

consisting of only two affidavits by attorneys who attested to their individual rates

and of rates in the firm of the Landlord‟s own lawyer in the case (billing rates

within range of the Laffey rates).      Far from a comprehensive survey, these

affidavits alone do not allow a determination that the rates attested to in the

affidavits accurately reflect prevailing rates in the submarket of rental housing

litigation, let alone establish that such a market exists. Moreover, the Van Salzen



(. . . continued)
Covington, 839 F. Supp. at 899. Although the district court found the evidence
submitted by the party opposing the fee request to be insufficient, it did not reject
the submarket approach altogether. The court stated that because “courts must aim
to award attorney‟s fees that mirror what counsel would earn in the market,” “[i]f
the market would provide different sub-markets of lawyers different rates, courts
properly aiming to mirror the market would award lawyers in each sub-market the
fees that their particular services command in the marketplace.” Id. at 898.
                                        30

affidavit presented by the Tenants refuted that evidence. The Landlord‟s evidence

was simply not enough to overcome the presumptive reasonableness of the Laffey

Matrix. See id. at 1110.



      In reaching the conclusion that Laffey Matrix rates are presumptively

reasonable and that departure from these rates should not be lightly undertaken, we

are guided by the Supreme Court‟s warning that “[a] request for attorney‟s fees

should not result in a second major litigation.” Hensley, 461 U.S. at 437. We

agree with the D.C. Circuit that the burden should fall squarely on the party

opposing a fee request based on the Laffey Matrix to proffer specific

countervailing evidence which demonstrates the existence of a defined submarket

and the prevailing rates within that market. See Covington, 57 F.3d at 1111.

Otherwise, requiring courts to engage in an analysis of market definition for each

fee application would come at a sacrifice to judicial efficiency and could easily

result in a “second major litigation.” Cf. Thompson v. Kennickell, 710 F. Supp. 1,

5-6 (D.D.C. 1989) (rejecting argument that, in the context of contingency

enhancements, the “relevant market” should be defined according to concepts of

market definition and product interchangeability as developed under antitrust law,

because “to do so would be patently inconsistent with Justice Powell‟s admonition
                                         31

in Hensley . . . that „[a] request for attorney‟s fees should not result in a second

major litigation‟”).



       Finally, there are significant considerations grounded in the purpose of fee-

shifting provisions for the application of Laffey Matrix rates in cases brought

under statutes that allow awards of attorney‟s fees. The fact that a statute provides

for attorney‟s fees to the prevailing party—as an exception to the customary

American rule that each party bears its own attorney‟s fees—implies a legislative

determination that the subject of successful litigation is infused with a public

interest and that usual market forces are insufficient to supply the necessary

incentives to counsel.    Public interest litigation oftentimes has ripple effects,

beyond the immediate litigation and parties, that further the statutory purpose. It is

therefore critical that courts and agencies that decide those cases have a full and

cogent presentation. In view of this public interest, attorney‟s fee awards that

compensate counsel for taking on cases under fee-shifting statutes should suffice to

attract not simply any counsel, but “competent counsel.” Lively, 930 A.2d at 988

(emphasis added). As in this case, such litigation may be brought on behalf of

persons who rarely are able to afford a lawyer and usually are forced to struggle

with legal problems on their own—assuming they are aware of their statutorily

protected rights in the first place. The public interest is furthered by providing
                                          32

incentives to counsel to undertake cases that the legal marketplace ordinarily does

not and by supporting organizations such as Legal Aid that devote themselves to

high quality representation of indigent clients.



      Accordingly, we hold that the Commission erred in rejecting the Tenant‟s

proposed Laffey-derived rates as not presumptively reasonable, and in reducing

those rates by twenty percent under a submarket theory that was not properly

substantiated.   The lodestar for Legal Aid‟s services should be calculated

according to rates derived from the Laffey Matrix. See       District   of   Columbia

Office of Human Rights, 40 A.3d at 926 (refusing to defer to agency‟s

interpretation because it “misapplied accepted interpretive criteria in considering

the relevant language in the regulations, its reasoning is logically flawed, and it did

not consider the purpose of an . . . award”).



      D.     Determination of Hours Reasonably Expended



      “The [Commission] may exercise its discretion to decrease the number of

compensable hours in the lodestar calculation „[w]here the documentation of hours

is inadequate‟ and to „exclude from [the] initial fee calculation hours that were not

„reasonably expended‟ or „that are excessive, redundant, or otherwise

unnecessary. . . .‟” Hampton Courts, 599 A.2d at 1116 (quoting Hensley, 461 U.S.
                                          33

at 433-34). “„Hours are not reasonably expended . . . if an attorney takes extra

time due to inexperience, or if an attorney performs tasks that are normally

performed by paralegals, clerical personnel or other nonattorneys.‟” Id. at 1118

n.14 (quoting Action on Smoking & Health v. Civil Aeronautics Bd., 724 F.2d 211,

220-21 (D.C. Cir. 1984)). “„[I]t is insufficient to provide [the fact-finder] with

very broad summaries of work done and hours logged.‟” Id. at 1117 (quoting

Concerned Veterans, 675 F.2d at 1327).            “Rather, „the application must be

sufficiently detailed to permit the [court or agency] to make an independent

determination    whether    or   not   the     hours   claimed   are   justified,‟   and

„contemporaneous, complete and standardized time records‟ may be called for to

support a disputed fee request.” Id. “It is not necessary to know the exact number

of minutes spent nor the precise activity to which each hour was devoted nor the

specific attainments of each attorney.” Copeland v. Marshall, 641 F.2d 880, 891

(D.C. Cir. 1980) (quoting Lindy Bros. Builders, Inc. v. Am. Radiator & Standard

Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973)). “But without some fairly

definite information as to the hours devoted to various general activities, e.g.,

pretrial discovery, settlement negotiations, and the hours spent by various classes

of attorneys, e.g., senior partners, junior partners, associates, the court cannot know

the nature of the services for which compensation is sought.” Id.
                                         34



      As noted above, the Tenants contest only the hours reduction for work

performed by its attorneys—Eric Angel, Bonnie Robin-Vergeer and Julie Becker

—in the first appeal before this court. The Commission summarized Becker‟s time

records, which accounted for most of the fees requested, as falling into five

different stages, as follows:



             1. “Pre-Brief Preparation,” including reading RACD and
                Commission decisions and brief [of Loney], creating
                and completing outline of claims and parties‟
                arguments on appeal, and reviewing record on appeal
                at DCCA offices (4.5 total claimed hours for 2/23/09;
                2/24/09; 2/27/09);

             2. “Preparation of Appellate Brief for DCCA,” including
                working on brief (statement of facts), working on first
                draft of brief, completing first draft of brief, revising
                first draft of brief . . . , preparing a second draft of
                brief, revising second draft, begin filling in citations
                to record and explaining to paralegal how to fill in
                citations to record on appeal, and inputting, final
                proofreading, bluebooking and stylistic edits (22.2
                total claimed hours for 3/1/09; 3/4/09; 3/5/09; 3/6/09;
                3/10/09; 3/12/09; 3/13/09; 3/18/09; 3/20/09);

             3. “Preparation of Oral Argument before DCCA,”
                including beginning to prepare for oral argument, re-
                reading all briefs, begin reviewing principal case law,
                composing likely questions and potential answers for
                oral argument, creating an outline for oral argument,
                oral argument practice, distillation of hearing
                testimony by tenants, moot court, follow-up research
                from moot court, review of written materials,
                                        35

               beginning re-preparation for oral argument and re-
               reading briefs, re-reading RACD and RHC decisions,
               further oral argument practice, further moot court,
               going over written materials for oral argument and
               creating a paper file for the oral argument (25.25 total
               claimed hours for 1/23/10; 1/25/10; 1/28/10; 1/29/10;
               1/31/10; 2/1/10; 2/2/10; 2/3/10; 2/8/10; 2/9/10;
               4/30/10; 5/1/10; 5/3/10; 5/6/10; 5/8/10; 5/10/10);

            4. “Oral Argument before DCCA,” including oral
               argument (2.0 total claimed hours for 5/1/10);

            5. “Preparation of Response to en banc Petition,”
               including receiving and reviewing en banc petition,
               reviewing Loney‟s motion to supplement en banc
               petition, making an outline for the en banc response,
               working on en banc response, completing first draft of
               en banc response and proofreading en banc response
               and preparing it for filing (14.35 total claimed hours
               for 10/7/10; 10/19/10; 10/23/10; 10/25/10; 10/26/10;
               10/28/10; 11/1/10; 11/2/10).


      We note that the fee request stated that Legal Aid had exercised “billing

judgment” and that the request “reflects substantial reductions” by excluding

certain items that could well have been included: time spent by paralegals and law

students at Legal Aid,22 and time spent communicating with the client, with

counsel for the Landlord and with the Commission. The fee request excluded in

its entirety the legal work done on the Tenants‟ cross-appeal challenging the

      22
          14 DCMR § 3825.5 provides that fees may be awarded for services by
“law clerks, paralegals, or law students, who worked on the petition under the
supervision of an attorney.”
                                         36

Commission‟s attorney‟s fee award, including time spent in consultation with

attorneys at Jenner & Block, the Tenants‟ counsel in this appeal. The Commission

either overlooked that the fee request had already been discounted or gave it no

weight even though we have commented on the importance that counsel exercise

such billing judgment before a fee request is presented. District of Columbia v.

Hunt, 525 A.2d 1015, 1016 (D.C. 1987) [cited by Commission in Hampton Court

Tenants’ Ass’n, CI 20,176 at 6.]. This is a fundamental flaw in the manner in

which the Commission evaluated the Tenants‟ fee request.23



      Of the hours that were submitted, the Commission reduced Becker‟s total of

53.95 hours claimed for work done on the first appeal to this court to 41.86 hours,

and reduced her total of 14.3524 claimed hours for work on the opposition to the

Landlord‟s rehearing en banc petition to 8.11 hours. The Commission gave several

reasons, none of which we find justified, for reducing Becker‟s claimed hours for

appellate work. For example, because Becker did not participate in the original

      23
         The Commission took note of the fact that the fee request did not bill for
time spent by paralegals but took Becker to task for spending 15 minutes
“explain[ing] to paralegal how to fill in citations to the record from record on file”
and for herself spending time on tasks that the Commission thought should have
been performed by paralegals.
      24
          The Commission first corrected the petition‟s faulty addition so that the
number of hours was adjusted to 9.85 claimed for opposing the en banc petition.
So the actual reduction was 1.7 hours.
                                           37

administrative proceedings she had to spend time familiarizing herself with the

case for appeal; 4.5 hours were claimed for this preparation. 25 We believe that the

Commission abused its discretion in reducing the claimed hours. First, it is not

unusual that a different attorney will represent a client on appeal. Indeed, it is a

recognition of the different skills and experience required for effective appellate

practice before a court. A competent and conscientious attorney must become

familiar with the record of the proceedings for which appeal is being taken—the

court expects it. Although the Commission did not question Becker‟s need to

prepare, it assumed, without substantiation, that she had ready access to all the

materials necessary for appeal and that a visit to the court to review the record

should not have been necessary because Legal Aid already had all of the necessary

documents. Puzzlingly, it then reduced by ten percent (15 minutes) the time

claimed for the review of records at the court in what can only be described as an



      25
           Becker‟s affidavit read, with respect to these entries:

              2/23/09 Read decisions below and brief of Housing
              Provider. Began to create outline of claims on appeal and
              parties‟ respective position on each claim. 2 hours.

              2/24/09 Completed outline of claims and arguments. 1
              hour.

              2/27/09 Visited clerk‟s office at Court of Appeals to
              review record on appeal. 1.5 hours.
                                         38

arbitrary cut without a basis in the rationale questioning the time expenditure‟s

validity.



       Second, the attorney‟s time entries were sufficiently descriptive and precise

“to make an independent determination whether or not the hours claimed are

justified.” This is not a case where the fee applicant has provided billing entries

which cover 30 or 40 hours in a single entry and that contain only basic

descriptions of the tasks performed. Cf. Hampton Courts, 599 A.2d at 1117 n.12.

(single entry claimed 40 hours of compensation for “Research for Appellant‟s

Brief of Motion for Summary Reversal” and was simply dated “February 21-17

[sic]”; entry for period from March 30 to April 8 covered 30 hours for drafting

brief and three motions, without any further detail as to tasks performed). Here,

the attorney broke down her time entries into short segments, with descriptions that

provide enough information to justify that time.      For instance, Becker‟s time

entries on two different days of “[w]orked on first draft of brief” cover only 4.5

hours and 2 hours; her entries on two other days for “[r]evised first draft. Wrote

new Part IV” and “revised and sent new draft to [outside pro bono attorney for

review]” cover 4 hours and 2.25 hours; her entry of “[c]reated outline for oral

argument” was for 1 hour. The descriptions adequately explained how the lawyer

spent discrete amounts of time on identified dates. We are at a complete loss to
                                           39

understand the Commission‟s remarks that time entries were “vaguely or generally

described.” The court has no difficulty grasping the nature and necessity of the

legal work involved.




      The Commission found, however, that descriptions for tasks such as

“[b]egan to create outline” and “completed outline” were “vaguely or generically

described” because the “terms „began‟ and „completed‟ do not by themselves

suggest the activities engaged in for the claimed time.”             We can understand

perfectly that “began” signifies the initiation of a task, and that “completed”

signifies that it has been accomplished. But those were not the only words in the

fee request entries, rather in its order the Commission does not quote the full

descriptions in Becker‟s affidavit which identified the nature of the work that was

begun or completed. We are similarly puzzled by the Commission‟s objection to

the entries for brief writing as “so vaguely or generically described that the

Commission was unable to determine whether the hours claimed were in fact

reasonably expended, or were excessive or unnecessary.”26              The Commission


      26
           Becker‟s affidavit read, with respect to these entries:

                     3/1/09 Worked on brief (statement of facts). 2.2
                     hours.

                                                                     (continued . . .)
                                         40

singled out “worked on brief (statement of facts)” and “worked on first draft of

brief” as too vague to support the “reasonableness” of the time claimed, apparently

because the Commission thought that in light of the work Legal Aid had already

done before the Commission and the Commission‟s own order supporting the

Tenants, writing the brief should have been a straightforward affair. But even if a

party is defending the order appealed, an appellate brief has to conform to court


(. . . continued)
                    3/4/09 Worked on first draft of brief. 4.5 hours.

                    3/5/09 Worked on first draft of brief. 2 hours.

                    3/6/09 Completed first draft and sent to D. Reiser
                    for review. 1.5 hours.

                    3/10/09 Revised first draft. Wrote new part IV. 4
                    hours.

                    3/12/09 Revised first draft and sent new draft to D.
                    Reiser. 2.25 hours.

                    3/13/09 Discussed next draft with D. Reiser. .75
                    hours.

                    3/18/09 Revised second draft. Began filling in
                    citations. 1.75 hours.

                    Explained to paralegal how to fill in citations to
                    the record from record on file with the Court of
                    Appeals. .25 hours.

                    3/20/09 Inputted final proofreading, bluebooking,
                    and stylistic edits on brief. 3 hours.
                                         41

requirements and is targeted to an appellate panel; it is not simply a repetition of

what has been submitted in the previous forum.27



      With respect to the other two attorneys who worked on the appeal, Angel

claimed 2.5 hours for “moot court,” which the Commission reduced, by 15

minutes, to 2.25 hours.     The Commission also reduced Robin-Vergeer‟s 4.5

claimed hours for work on the appeal, which included 2.5 hours of moot court

participation and 2 hours for attending oral argument, by 1 hour and 15 minutes, to

3.25 hours.28 In making these reductions, the Commission found that Angel and

Robin-Vergeer had performed tasks that were “unreasonably duplicative” of

Becker‟s work, such as mooting Becker in preparation for oral argument and

Robin-Vergeer being present at oral argument as second chair.29


      27
         Total time claimed for brief writing was 22.2 hours over a 20-day period,
with a detailed accounting of the time spent and how it was spent on each day.
This does not appear to us to be excessive in light of the four separate issues raised
by the Landlord‟s petition for review to which the Tenants had to respond. The
court eventually disposed of the case deciding only one of the issues, but Legal Aid
would have run afoul of its professional responsibilities had it not made a full
response on the Tenants‟ behalf.
      28
         The Commission did not decrease the 1.5 hours Robin-Vergeer claimed
for working on the opposition to the petition for rehearing en banc.
      29
         The Commission allowed only 15 minutes of oral argument time to
Becker and Robin-Vergeer, relying on this court‟s Internal Operating Procedures
which provide that “[u]nless the court orders otherwise, each side will be allowed
                                                              (continued . . .)
                                        42



      The hours claimed were neither unnecessary, excessive, or duplicative.

There is no support for the Commission‟s finding that the hours claimed for

preparation for oral argument were excessive in this case,30 or that having a panel

of two attorneys during a moot court session is unreasonably duplicative in light of

the fact that argument before this court is presented to an appellate panel of three

judges. We expect that attorneys who appear before the court will spend time

reviewing the record, researching the law in depth, and crafting arguments that are

clear and concise. Mooting and other forms of oral argument preparation are



(. . . continued)
15 minutes for argument in cases on the regular calendar. . . .” District of
Columbia Court of Appeals, Internal Operating Procedures pt. VI. A, at 5 (2014).
Anyone familiar with appellate practice before this court knows that this is a
guideline, not a guillotine. In any event, even if counsel for a party is allocated
fifteen minutes at the outset, the court often has questions that prolong the
argument, counsel remains in the courtroom while the other side makes its
presentation and there may be some time before and after oral argument that are a
natural part of the process of gathering in the courtroom and leaving the court.
Therefore, the fifteen minute limit was arbitrary. The court‟s records show that, in
fact, oral argument on the first appeal lasted 1 hour, 18 minutes and 47 seconds.
Entries of two hours for each of two attorneys to attend oral argument (one
presenting the argument, the other as second chair) are hardly excessive and should
not have been reduced.
      30
          Oral argument was initially scheduled for ten months after the Tenants‟
brief had been filed. As the fee petition explained, because oral argument was
postponed for three months due to weather, there was a second round of
preparation for oral argument. We note that the second round of preparation took
significantly less time than the first.
                                         43

widely recommended and the court endorses them, as effective oral argument is

not only a part of zealous representation but also a benefit to the court. We also

expect that attorneys will proofread and verify the citations in the written work that

they submit to this court.31 In sum, we conclude that the Commission erred in its

determination that the proffered explanations were vague or that the time spent on

the identified tasks was unnecessary, excessive or duplicative. Legal Aid attorneys

expended a reasonable number of hours preparing and arguing the case in the first

appeal and the time records were not duplicative. The fact that some of the

Commission‟s reductions were quite small—trivial really—only points out the

inordinate amount of lawyer and judge time spent on this fee request for very little

yield. A review for “reasonableness” is not carte blanche for micromanaging the

practice of lawyers the court or agency has no reason to believe are padding their

hours.




         31
             The Commission thought that Becker unreasonably spent time
performing work that paralegals, law students, or clerks typically performed, such
as “[f]illing in citations,” “[p]roofreading” and “[b]luebooking” and that oral
argument preparation for a total of 13 hours was excessive for Becker‟s level of
experience. Appellate judges are acutely aware of the time required, even with the
assistance of competent law clerks, in ensuring that the court‟s work product is
accurate and free from technical errors. It is reasonable that lawyers‟ time would
reflect a similarly punctilious approach to their appellate briefs.
                                         44



                               III. CONCLUSION


      For the foregoing reasons, the Commission‟s fee award is reversed. We

hold that the lodestar amount is to be calculated as follows: the hourly rates should

accord with the Laffey Matrix, which results in a rate of: (1) $420 for Angel‟s

work on the first appeal; (2) $420 for Robin-Vergeer‟s work on the first appeal,

and $475 for her work opposing the Landlord‟s petition for rehearing en banc

petition; (3) $335 for Becker‟s work on the first appeal, $420 for her work

opposing the en banc rehearing petition, and $435 for her work on the remand

proceedings before the Commission;32 and (4) $495 for Keeney‟s work on the

remand proceedings. The hours the Tenants presented for work performed in

connection with the first appeal, which are reasonable, are (a) 2.5 hours for Angel;

(b) 4.5 hours for Robin-Vergeer‟s work on the appeal, and 1.5 hours for her work

opposing the en banc rehearing petition, and (c) 53.95 hours for Becker‟s work on

the appeal, and 9.85 hours for her work opposing the en banc rehearing petition.

With respect to Becker and Keeney‟s work on remand before the Commission, a




      32
         The Laffey-derived hourly rate of $335 for Becker‟s services rendered
during the first appeal is not in dispute.
                                          45

total of 10.83 hours (7.08 for Becker and 3.75 for Keeney)33 shall be awarded at

the Laffey-derived rates we have indicated. Accordingly, we hereby award a total

of $30,798.80 in attorney‟s fees to Legal Aid, which is the sum of fees for work

performed in connection with the first appeal ($25,862.75) and on remand before

the Commission ($4,936.05). See Loney, 11 A.3d at 759 (“[D.C. Code § 42-

3509.02] does not specify that each entity can only award attorney‟s fees for work

done before it; instead[,] it indicates that the listed entities [Rent Administrator,

Rental Housing Commission, or a court of competent jurisdiction] can grant

attorney‟s fees „for any action under this chapter.‟”).



                                               So ordered. 34




      FISHER, Associate Judge, dissenting in part: In cases like this, “the agency

decision with respect to the award of attorney‟s fees is presumed to be correct, and

thus the [Tenants] Association bears the burden of demonstrating that the [Rental

Housing Commission] abused its discretion in reducing either compensable hours
      33
          The Commission‟s hours calculation for work on remand following the
first appeal is not challenged by the Tenants and we adopt it here.
      34
          Tenants have indicated that they intend to ask for attorney‟s fees for legal
work rendered in connection with this second appeal. Once the appeal is finalized,
they will be entitled to do so if, as is the case now, they are the prevailing party.
                                            46

or hourly rates.” Hampton Courts Tenants Ass’n v. District of Columbia Rental

Hous. Comm’n, 599 A.2d 1113, 1116 (D.C. 1991).              I cannot agree that the

Commission abused its discretion by determining that hourly rates of $335 to $395

would provide reasonable compensation to the tenants‟ attorneys.1



       The Commission engaged in careful analysis, heeding our previous

statement that the Laffey Matrix is “one legitimate means of calculating attorneys‟

fees in those cases, such as this, where a prevailing party is statutorily entitled to

attorney‟s fees.” Lively v. Flexible Packaging Ass’n, 930 A.2d 984, 990 (D.C.

2007). But we have made it clear that the matrix “is merely a starting point.” Id.

See also Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995)

(“a useful starting point”). I would not go further, as the majority does, and treat

the Laffey rates as both “presumptively reasonable,” Majority Opinion at 21, and

nearly irrebuttable. See Majority Opinion at 27 (“[I]n most cases [the Laffey

Matrix] will be the best place to end . . . .”).



       Although the majority relies heavily upon Covington and other decisions

from the District of Columbia Circuit, that court does not seem so rigid. In a


       1
        I concur in part II. D of Judge Ruiz‟s opinion with regard to the number of
hours reasonably expended. Good appellate advocacy takes time.
                                         47

recent case involving an award of attorneys‟ fees as indemnification, the appellants

faulted the District Court “for opting not to apply the Laffey matrix.” The court

acknowledged that “[w]e certainly have approved of the Laffey matrix as a useful

tool in assessing reasonableness in some circumstances,” Armenian Assembly of

Am. v. Cafesjian, 758 F.3d 265, 281 (D.C. Cir. 2014) (emphasis added), but

concluded that appellants‟ “contention misses the mark. . . . [The trial court] was

not required to adhere to any particular method in” determining that the award of

fees was reasonable. Id. at 281, 282.



      In my view, the Commission properly looked to rates charged by attorneys

doing similar work in the specialized field of rent control and rental housing. Of

course, most of the work for which fees were claimed was performed in this court.

But there is no basis in the record for concluding that attorneys who litigate before

us, in that field or any other, customarily make more than $335 to $395 per hour.

Indeed, a large number of our most talented and experienced advocates are

appointed under the CJA and CCAN programs and are paid $90 per hour.

D.C. Code § 11-2604 (a) (2012 Repl.) (representation of indigents in criminal

cases); D.C. Code § 16-2326.01 (2012 Repl.) (compensation of attorneys in neglect

and termination of parental rights proceedings). I am not suggesting that $90 per
                                        48

hour would be reasonable compensation here, but this comparison does add useful

perspective to our inquiry.



       The majority appeals to judicial efficiency and points to the Supreme

Court‟s admonition that “[a] request for attorney‟s fees should not result in a

second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). There

is, however, a better means of reaching those goals—by affording the deference we

customarily give to a trial court or an agency in such matters. In Lively we

emphasized our limited scope of review with respect to an award of attorneys‟

fees, noting that “it requires a very strong showing of abuse of discretion to set

aside the decision of the trial court.” 930 A.2d at 988. In this procedural setting,

we owe at least equal deference to the Commission. The majority instead has

conducted what amounts to de novo review.
