ANOTHER SINKHOLE OPENS UNDER LAFFEY’S USEFULNESS

The D.C Circuit just overturned a District Court decision that held that the Laffey Matrix was not appropriate for reimbursing attorneys in a D.C. discrimination class action case.  The lower court ordered the parties use the U.S. Attorney Office (USAO) matrix, which reimburses at a substantially lower rate. While this may sound like a big victory for those looking to ride the Laffey matrix, it is not because the Circuit Court characterized the Laffey Matrix as appropriate for complex litigation rather than simple litigation. It is our guess that most arbitrations, as well as MSPB and EEOC disputes, are not complex litigation. See DL, ET AL.v. DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL., No. 18-7004 (D.C Cir. 2019)

The Circuit Court considered the discrimination case for which fees were being requested to be complex litigation because it involved “…two separate trips to this court, extensive motions practice, and two separate bench trials.” Neither MSPB, EEOC or arbitration work is nearly as complex, with rare exceptions. Complexity is critical in the eyes of the court because fees must be based on a calculation tailored to the “kind and quality of services furnished.”

The Circuit Court also criticized the Laffey Matrix as “…based on a relatively small sample of rates charged by sophisticated federal-court practitioners in the District of Columbia” and “somewhat crude”

Ironically, the Court seems to have endorsed the use of the USAO matrix for less complex litigation.  It noted that the USAO Matrix tracks the full range of legal work from simple to complex, it reflects rates throughout the D.C. Metro area, not just D.C., and unlike the Laffey Matrix that has its origin in a sample of only 7 law firms the USAO obtained statistically significant data from 350 attorneys.

Unions can expect agencies to piggyback on this decision’s characterization of the Laffey Matrix relevance given how must lower the benchmark fee would be–not to mention the financial windfall it is for a union.  For example, the Laffey fee for an attorney with more than 20 years of practice is $894 an hour while the USAO rate would be $572. Be let’s all remember that is still about six times more than the hourly rate of a federally employed attorney who sits across the table from the private sector lawyer. So, our advice is that unions should be very, very open to taking fees deals based on the USAO rather than Laffey.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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