# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2019 Decided May 21, 2019

No. 18

- 7004

DL, ET AL ., A PPELLANTS

v.

D ISTRICT OF C OLUMBIA , A M UNICIPAL C ORPORATION , ET AL ., A PPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:05

- cv

- 01437)

Carolyn Smith Pravlik argued the cause for appellants. With her on the briefs were Todd A. Gluckman and Cyrus Mehri

. Margaret A. Kohn entered an appearance.

Michael T. Kirkpatrick and Allison M. Zieve were on the brief for amici curiae Public Citizen, Inc., et al.

, in support of appellants.

Lucy E. Pittman , Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Karl A. Racine

, Attorney General, and Loren L. AliKhan , Solicitor General. Caroline S. Van Zile , Deputy Solicitor General, entered an
appearance.2

C harles W. Scarborough , Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States of America supporting appellees. With him on the brief was Jessie K. Liu , U.S. Attorney.

Before: G ARLAND , Chief Judge

, T ATEL , Circuit Judge , and S ENTELLE , Senior Circuit Judge

. Opinion for the Court filed by C ircuit Judge T ATEL

. Dissenting o pinion filed by Senior Circuit Judge S ENTELLE

.

T ATEL , Circuit Judge : When plaintiffs prevail in a civil rights case , the law usually entitles them t o recover reasonable attorney’s fee s

. Federal district judges , whom Congress has tasked with tabulating those fees, frequently find themselves whipsawed between two seemingly discordant instructions: (1) ascertain the hourly rate for lawyers performing similar work “with a fair degree of accuracy” using “specific evidence,” National Association of Concerned Veterans v. Secretary of Defense , 675 F.2d 1319, 1325 (D.C. Cir. 1982), but (2) do so without turning fee calculat ions into “ a second major litigation

, ” Hensley v. Eckerhart , 461 U.S. 424, 437 (1983). To reconcile those directives, district courts often turn to a fee matrix

— that is, a chart averaging rates for attorneys at different experience levels . For decades, cou rts in this circuit have relied on some version of what is known as the Laffey matrix

. Created in the 1980s, that matrix is based on a relatively small sample of rates charged by sophisticated federal

- court practitioners in the District of Columbia

. L itiga nts have update d the matrix for inflation using an assortment of tools

. Recently, however, t he United States Attorney’s Office sought to replace this standby with a new default matrix based on data3

for all types of lawyers

— not just those who litigate complex federal cases

— from the entire metropolitan area

— not just the District of Columbia.

In this case, after plaintiffs prevailed in a long

- running Individuals with Disabilities Education Act class action, t he district court accepted the District of Columbia’s invitation to rely on the USAO’s new matrix in awarding fees

. But as we explain below

, the new matrix departs from the statutory

r equirement that reasonable fees be tethered to “ rates prevailing in the community” for the “kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C). W e therefore vacate the award and remand for the district court to recalculate the hourly rate b ased on evidence that focuses on fees for attorneys practicing complex federal litigation in the District of Columbia.

I.

We b egin by review ing t he elementary principles governing fee

- shifting rate calculations and the genealogy of fee matrices in this ci rcuit

, and then turn to the history of this particular case.

A. As Congress enacted a growing number of laws securing civil rights, it confronted a problem: “enforcement would prove difficult” without private lawsuits , and would

- be plaintiffs needed skilled lawyers to guide them through the obstacle

course of complex litigation

. Newman v. Piggie Park Enterprises, Inc. , 390 U.S. 400, 401 (1968). But those plain tiffs often lacked financial resources “indispensable” to attracting

“ competent counsel ” willing and able to take on defendants of greater means

. Save O ur Cumberland Mountains, Inc. v. Hodel , 857 F.2d 1516, 1521 (D.C. Cir. 1988) (en banc) (internal quotati on marks and emphasis omitted). So Congress4

turned to fee

- shifting provisions

, simultaneously “encourag[ing] plaintiffs to bring suit” and allowing those who prevail to finance the cost of legal assistance by recovering fee s from the defendant

. Mary Frances Derfner & Arthur D. Wolf, 1 Court Awarded Attorney Fees ¶ 5.03, § 7(a) (2018 ed.); accord Piggie Park , 390 U.S. at 402 (“Congress therefore enacted the provision for counsel fees

. . . to encourage individuals injured

. . . to seek judicial relief

. . . .”). “ [ O ] ver 100 separate statutes ” now provide “ for the award of attorney’s fees.” In re Donovan , 877 F.2d 982, 991 (D.C. Cir. 1989) (internal quotation marks omitted) ; see also Congressional Research Service

, Report 94

- 970

, Awards of Attorneys’ Fees by Federal Courts and Federal Agencies 57

– 117 (Oct. 22, 2009) (listing them).

The basic formula for calculating an attorney fee award

seems straightforward: multiply “the number of hours reasonably exp [ e ] nded in litigation” by “a reasonable hourly rate or ‘lodestar.’” Cumberland Mountains , 857 F.2d at 1517. The Supreme Court has offered guidance about how to perform that calculation, explaining that “reasonable fee s” are those grounded in rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation

. ” Blum v. Stenson , 465 U.S. 886, 895 n.11 (1984). The statute at issue here, the Individuals with Disabilities Education Act (IDEA) , codifies that interpret ation of “ reasonable” : “Fees awarded under [IDEA] shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C).

Implementing this relatively simple de finition has proven vexing. See Reed v. District of Columbia , 843 F.3d 517, 521 (D.C. Cir. 2016) (“ [D] etermining

. . . the prevailing market rate[] is ‘inherently difficult.’” (quoting Eley v. District of5

Columbia , 793 F.3d 97, 100 (D.C. Cir. 2015))). We h ave operationalized it with a burden

- shifting framework : To begin, “a fee applicant bears the burden of establishing entitlement to an award

. . . and justifying the reasonableness of the rates

. ” Covington v. District of Columbia , 57 F.3d 1101, 1107 (D.C. Cir. 1995). At that point, the claimed fee “is presumed to be the reasonable fee contemplated by” the statute

, and the burden shifts to the defendant to present “ equally specific countervailing evidence ” if it seeks a different (presumably lower) rate. Id. at 1109 (internal quotation marks omitted).

For either party, a matrix showing the average hourly price tag of comparable lawyers may “provide a useful starting point” in calculating market rates. Id. But b ecause such “matrices are somewhat crude,” the matrix’s proponent usually cannot stop there. Id. Instead, the proponent may point to additional evidence, which can include “surveys to update the matrix; affidavits reciting the precise fees that attorn eys 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.” Id. No particular type o f evidence can be considered gospel ; “evidence of the prevailing market rate can take many forms.” Eley , 793 F.3d at 104 n.5.

The first and most influential matrix in this circuit debuted in Laffey v. Northwest Airlines, Inc.

, a 1983 Title VII and Equal Pay Act case

. 572 F. Supp. 354 (D.D.C. 1983), affirmed in part, reversed in part , 746 F.2d 4 (D.C. Cir. 1984), overruled in part

, Cumberland Mountains , 857 F.2d 1516. In those fledg l ing days

— before big data, Google, or a prolific cottage industry ded icated to studying the legal profession

— the prevailing plaintiff’s attorney created a fee schedule by “ inquir [ ing ] into the billing rates of firms in Washington, D.C., which [were] engaged in active litigation practice in the federal courts” and6
collecting “affidavits

. . . giving specific rate information, supporting and substantiating the rates described .” First Rezneck Affidavit ¶ 9

, Laffey v. Northwest Airlines, Inc.

, No. 1:70

- cv

- 02111

- AER (D.D.C. Mar. 17, 1983), Joint Appendix (“J.A.”) 5 71

– 72

. A star w as born. See Eley , 793 F.3d at 10 0 (describing the Laffey matrix as “ [ t ] he most commonly used fee matrix” in this circuit “for lawyers who practice ‘complex federal litigation’”).

We endorsed the Laffey matrix in Save Our Cumberland Mountains , Inc. v. Hodel

. Sitting en banc, w e “ commend [ ed ] it s use for the year to which it applie[d]” and suggested “the compiling of a similar schedule of prevailing community rates for other relevant years

. ” Cumberland Mountains , 857 F.2d at 1525. Joseph Yablonski , a Wash ington, D.C. litigator, answered that call by speaking “ with attorneys from” seven major law firms and comparing the rates he “found with the rates set forth in two broad

- ranging surveys of hourly rates published in the National Law Journal .” Yablonski Dec laration ¶¶ 5

– 6, Broderick v. Ruder , No. 1:86

- cv

- 01834

- JHP (D.D.C. 1989), J.A. 624

– 25. Yablonski’s labors updated Laffey ’s rates through 1989. Somewhat confusingly, litigants routinely refer to both the original 1983 matrix and Yablonski’s 1989 update as t he “ Laffey matrix

. ”

In the following decades , hourly rate disputes in this circu it often revolved around whether a case was sufficiently complex to warrant Laffey rates
, see, e.g. , Reed , 843 F.3d at 525

– 26 (addressing that question in an IDEA case ), and

, if so, how best to update the Laffey matrix for inflation

, see Eley , 793 F.3d at 101 (describing that debate). The USAO maintained one version of the matrix, relying on the original 1983 base data updat ed through a Bureau of Labor Statistics inflation index that tracks regional price increases in all goods

. Id. Some
p laintiffs’ attorneys argued that this index failed to capture the7

true rate of inflationary change and began advancing a ve rsion of the 1989 Laffey data updated with a different Bureau of Labor Statistics index called the Legal Services Index (LSI)

, which estimates price increases for the legal market nationwide

. Id. at 101

– 02. When the two were pitted against each other, courts frequently found the LSI Laffey matrix more persuasive

. See id. ( observing that “critics” of the USAO’s Laffey matrix had “advocated, to some degree of success, for a competing Laffey Matrix .

. . that us es the Legal Services Index” ) ; see also Salazar v. District of Columbia , 809 F.3d 58, 65 (D.C. Cir. 2015) (affirming district court’s choice to apply the LSI Laffey matrix over the USAO’s).

Since 2015

, however, t he USAO has undertaken a major effort to replace the Laffey dataset s by using a more current rate survey as the base for a brand new matrix

. For those figures, the USAO turned to the annual Survey of Law Firm Economics, published by ALM Legal Intelligence (“ALM”) in conjunction with the National Law Journal

. The off

- the

- rack version of that survey publishes hourly rate data for thousands of lawyers engaged in all types of practice, all over the country. The USAO custom ordered a subset of the 2011 survey ’s data

co vering the “Washington, D.C. metro area

, ” defined by the Census Bureau to include portions of Virginia, Maryland, and West Virginia. Plaintiffs ’ Exhibit 84, DL v. District of Columbia , 1:05

- cv

- 01437

- RCL , ECF No. 566

- 17 ( D.D.C. May 21, 201 7 ), J.A. 1573. Thi s tailored dataset summarizes “standard hourly billing rates” for 350 attorneys

, yielding
average rates hundreds of dollars below those reflected in the LSI Laffey matrix

. Id. The USAO intends to update ALM’s 2011 data for inflation using still another ind ex focusing on industry

- specific price increases nationwide

.

B. This case began almost fifteen years ago when plaintiffs,8
parents of several children aged three to six

, filed suit “alleging a ‘pervasive and systemic’ breakdown in the” District of Columbia’s compliance with IDEA resulting from the District’s failure “to identify large numbers of disabled children and delivering inadequate and delayed [educational] services to many o thers.” DL v. District of Columbia , 860 F.3d 713, 718 (D.C. Cir. 2017). Following a protracted dispute regarding class certification resulting in two separate trips to this court

, extensive motion s practice

, and two separate bench trial s , “the district cou rt issued a 130

- page opinion finding the District liable ” on most counts and ordered sweeping injunctive relief. Id. at 719

– 20. We affirmed “in all respects.” Id. at 717.

As plaintiffs had prevailed on the majority of their claims

, f ee litigation comm enced. Although the parties contested many issues in the district court , all but the hourly rate have dropped out on appeal. P laintiffs sought attorney fees based on the LSI version of the Laffey matrix. The District offered the new USAO matrix as an alternative. Both sides produced a pile of evidence purporting to prove that their matrix better reflects the relevant rates, including affidavits from economists and attorneys ; various commercially

- available rate surveys ; and information regarding fees requested, awarded, and settled on in other cases.

The district court began by finding that both matrices were “presumptively” applicable to “complex federal litigation.” DL v. District of Columbia , 267 F. Supp. 3d 55, 69 (D.D.C. 2017). Comparing the two, however, t he court was more persuaded by the USAO’s new matrix

, especially its statistically significant sample size and “more narrowly defined” experience categories. Id. at 69

– 70

. Thus, despite plaintiffs’ objection tha t the data underlying the USAO’s new matrix incorporates rates for non

- litigators outside the District, the court ordered plaintiffs to recalculate their fees using the USAO’s rates

. Id.9

at 72. Largely as a result of that order (in conjunction with a few m inor adjustments unchallenged on appeal), the requested $9.76 million fee dropped to a $6.96 million award. Plaintiffs appeal.

II. Simply stated , the question before us is whether the district court abused its discretion in determining that the hourly rates in the USAO’s matrix are “reasonable

. ” Recall that IDEA makes express a requirement that inheres in any statutory provision for “reasonable attorney’s fees”: such fees must be calcu lated using “rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C); accord Blum

, 465 U.S. at 895 n.11 (explaining that this is part of what it means to be “reaso nable”). Recall also that once “a fee applicant” has met the preliminary burden of “justifying the reasonableness of the rates,” those rates are “presumed to be

. . . reasonable” unless and until the defendant offers “equally specific countervailing eviden ce” supporting another
rate. Covington , 57 F.3d at 1107 , 1109 (internal quotation marks omitted)

. We will reverse a district court’s determination that certain hourly rates are reasonable when there has been a “clear misapplication of legal principles, arb itrary fact finding, or unprincipled disregard for the record evidence.” Kattan ex rel. Thomas v. District of Columbia , 995 F.2d 274, 278 (D.C. Cir. 1993), as amended (June 30, 1993); see also Koon v. United States , 518 U.S. 81, 100 (1996) (“A district cou rt by definition abuses its discretion when it makes an error of law.”).

A. We begin with the District’s argument that plaintiffs failed
to me e t their initial burden to support with specific evidence10

their claim that the LSI Laffey rates satisfy the statute’s command

. O ur recent opinion in Salazar v. District of Columbia , however, all but compels the conclusion that plaintiffs clear ed that bar

. The Salazar plaintiffs relied on the same types of evidence in essentially the same level of detail to
suppo rt the same rate matrix (for a slightly earlier year). 809 F.3d at 64

– 65. That evidence, we concluded , was more than enough to pass the burden onto the District

. Id. at 65 (“With these numbers and submissions in the record, the district court’s point that the LSI

- adjusted matrix is probably a conservative estimate of the actual cost of legal services in this area, does not appear illogical.” (internal quotation marks omitted)). The District has given us no reason to reach a different conclusion on such a si milar record.

B

. The meatier question, then, is whether the District satisfied its rebuttal burden . The USAO’s new matrix formed the cornerstone of the rebuttal case , and the district court treated that matrix as “presumptively” applicable. DL , 267 F. Sup p. 3d
at 69. We are at a loss to understand the basis of that presumption, given that this court had yet to review the new matrix

. T he proper inquiry , under the applicable legal principles, was whether the District supported its matrix with “equally specific countervailing evidence

. ” Covington , 57 F.3d at 1109 (internal quotation marks omitted)

.
The District contends that the USAO’s more recent raw data and statistically significant sample size ma k e it s matrix
supe rior to plaintiffs’ favored LSI Laffey matrix

. Crucially, however, those traits matter only if the data surveys the relevant population. As plaintiffs’ expert, Dr. Michael Kavanaugh

, put it, “comparable prices are found by observing comparable goods.” Seco nd Kavanaugh Decl aration ¶ 8, DL v. District of Columbia , 1:05

- cv

- 01437

- RCL , ECF No. 566

- 1111
( Apr. 26 , 201 7 ), J.A. 1380. For example, for someone house hunting in Memphis , a survey of real estate prices in Seattle

— even one with a perfect response rate updat ed daily

— would be of no use. The same is true here . T he USAO’s matrix is helpful only if it canvasses the relevant type of lawyer

, which i t does
not.
To begin with

, the USAO’s matrix incorporates rates for the wrong type s of practitioner

. The parties and the district court agree that this case qualifies as “complex federal litigation

. ” DL , 267 F. Supp. 3d at 69

. Yet r ather than confine its data to rates charged by attorneys practicing that genre of litigation

— or even just litigators in gen eral

— the survey that the USAO drew from incorporates rates from all types of lawyers. R espondents include real estate lawyers, family lawyers, and insurance lawyers

— lawyers manifestly not offering “the kind and quality of services furnished” by these plaintiffs’ attorneys , as the statute requires of comparators. 20 U.S.C. § 1415(i)( 3 )( C ) ; accord Eley

, 793 F.3d at 105 (fee analysis should focus on “la wyers

. . . doing the same type of litigation” (emphasis omitted)). It is obvious that the rates charged for, say, simple wills are lower than those for complex federal litigation. Worse still, nothing in the record reveals what percentage of respondents i n the USAO’s custom cross

section of the ALM data were litigators . For all we know, the number could be anywhere from zero to all 350

. Compounding this first error, the USAO’s custom

- ordered dataset surveys lawyers far beyond the “community in which th[is] action .

. . arose

. ” 20 U.S.C. § 1415(i)(C)(3). P laintiffs brought t his case on behalf of District of Columbia residents regarding District of Columbia schools against the District of Columbia. Yet the USAO matrix draws from lawyers who practice in the entire “metro area” as defined by the United States Census Bureau. The phrase “metro area” suggests12
proximity , but

— according to the Census Bureau’s definition

— that area stretches well beyond the District to cover tho usands of square miles over three states, from rural Madison County, Virginia

, to the eastern shore of Maryland

, back to the foothills of Jefferson County, West Virginia. Needless to say, this case has no connection to most of those areas. Our court has he ld that ordinarily “the relevant community is the one in which the district court sits.” Donnell v. United States , 682 F.2d 240, 251 (D.C. Cir. 1982). Accordingly, o ur decisions refer to the relevant community as the District of Columbia

. See, e.g.

, Salazar , 809 F.3d at 64 (discussing “prices for legal services in Washington, D.C.”); Covington , 57 F.3d at 1104 (discussing evidence of rates “in the District of Columbia”). That general rule fits comfortably with the facts of this case. Yet here, more th an half the data in the USAO’s customized dataset comes from outside the District of Columbia, see Appellant’s Br. 20, and District counsel acknowledges that it includes data from throughout the three neighboring states

, see Oral Arg. Rec

. 28:04

– 28: 22 . Aga in, it is obvious, as District counsel recognizes, that fees are lower in rural areas than in the District. See Oral Arg. Rec . 3 1 : 04

– 3 1 : 30 . Indeed, the District’s own evidence shows that rates for legal services in the District of Columbia are among the hi ghest anywhere. National Law Journal & ALM Legal Intelligence, The Survey of Law Firm Economics , 139

– 41 (2011 ed.), J.A. 1485

– 87.

Confronted with these two flaws , the district court said nothing about them , resting exclusively on its statement that the U SAO’s matrix was “presumptively applicable.” DL , 267 F. Supp. 3d at 69. In doing so, the court abused its discretion twice over. First, by failing to determine whether the USAO’s matrix satisfies Congress’s statutory baseline, the court committed a “clear misapplication of legal principles

. ” Kattan
, 995 F.2d at 278 ; see also Koon , 518 U.S. at 100. And s econd,13

it “disregard[ed] .

. . record evidence” that its chosen matr ix failed to achieve that baseline. Kattan , 995 F.2d at 278.

Calling in reinforcements , t he District points to a growing consensus among the district judges in this circuit that the USAO matrix is superior to Laffey

. See, e.g.

, Lewis v. District of Columbia

, No. 1:15

- cv

- 521

- JEB, 2018 WL 6308722, at *8 (D.D.C. Dec. 3, 2018) (collecting cases). Many of those cases repeat the district court’s fundamental error here: none find s , based on record evidence, that the new matrix is based on rates for complex federal l itigators in the District. See id. at *9 (no response to the plaintiff’s objection that the new USAO matrix “reflects all types of legal services”); Gatore v. United States Department of Homeland Security , 286 F. Supp. 3d 25, 42

– 43 (D.D.C. 2017) (no respon se to observation that the USAO’s survey may be “over

- inclusive”); Electronic Privacy Information Center v. United States Drug Enforcement Administration , 266 F. Supp. 3d 162, 170

– 71 (D.D.C. 2017) (no discussion of survey composition); Clemente v. Federal Bureau of Investigation , No. 1:08

- cv

- 1252

- BJR, 2017 WL 3669617, at *5 (D.D.C. Mar. 24, 2017) (merely describing the new USAO matrix as “measur[ing] rates in the legal services industry”). Others apparently lacked the benefit of any briefing on the new matr ix’s flaws. See, e.g.

, Wadelton v. Department of State , No. 1:13

- cv

- 412

- TSC, 2018 WL 4705793, at *12 (D.D.C. Sept. 30, 2018) (adopting new USAO matrix sua sponte “[a]lthough the parties ha[d] not briefed” it); National Security Counselors v. Central Intell igence Agency , No. 1:11

-
cv

- 444

- BAH, 2017 WL 5633091, at *17 (D.D.C. Nov. 21, 2017) (employing the new USAO matrix after plaintiffs offered “no analysis of the USAO’s newest methodology”). So , even sympathizing with the district court’s appetite for more re cent data, we are unpersuaded by its decision to embrace newer but irrelevant figures.14
Despite the evidentiary defects in the record , t he District offers an alternative basis for affirming: its supplemental proof demonstrates that the USAO’s matrix accurately reflects complex litigation rates in the District of Columbia

. But the district court made no findings about the evidence the District uses to back up that claim

, and s ome of that data appears to be of dubious value. For example, the District’s primary redoubt comprises two sets of nationwide data from the 2014 ALM
survey. But i t is not at all obvious that these nationwide data sets are useful comparators for rates in the District. See National Law Journal & ALM Legal Intelligence, The Survey of Law Firm Economics 139

– 41 (2011 ed.), J.A. 1485

– 87 (showing that rates in the District substantially exceed those in most other jurisdictions). Nonetheless, mindful of the district court’s primary factfinding role, we lea ve it for that court to assess on remand the impact, if any, of the District’s remaining market evidence and to take further evidence if necessary to arrive at a “reasonable rate.”

C

. The District argues that “even if” we reject the USAO’s new matrix

— as we now have

— “that does not mean that [plaintiffs] were entitled to rates under the LSI [ Laffey ] Matrix.” Appellee’s Br. 25. But it offers one and only one argument for rates in between the two : that this court has held that attorneys in IDEA cases should not be compensated at Laffey rates. Id. That argument mischaracterizes our precedent. True, we have held that IDEA cases sometimes fall within a submarket characterized by below

- Laffey rates. Reed , 843 F.3d at 525. But such cases involved individual IDEA p laintiffs litigating non

- complex cases primarily before an administrative body. See id. (noting individual “IDEA litigants may not have discovery and pre

- trial exchanges of the sort found in other federal litigation”); Eley , 793 F.3d at 105 n.6 (discussing “representation in IDEA administrative due15 process hearings” (internal quotation marks omitted)); accord Second Kohn Affidavit ¶¶ 9

– 17, No. 1:05

- cv

- 01437

- RCL, ECF No. 566

- 5 (D.D.C. Apr. 27, 2017), J.A. 1359

– 61 (describing typical IDEA case and noting that , “in an even unusually complex individual IDEA case appealed to the district court,” the “full record .

. . would typically fit into two banker’s boxes”). Indeed, w e have always left open “the possibility that .

. . fee applicants may be able to demonstra te that IDEA cases are ‘complex federal litigation’ to which the Laffey Matrix presumptively applies.” Reed , 843 F.3d at 525

. And h ere the district court found that this case qualifies as “complex federal litigation,” DL , 267 F. Supp. 3d at 69, a finding t he District has not challenged, s ee Appellee’s Br. 22 n.8

. I t therefore may not claim that fees from individualized IDEA actions are appropriate comparators.

To be sure, the district court identified other concerns regarding the LSI Laffey matrix , including (1) the age of the raw data ; (2) whether it captures a truly representative sample of complex federal litigators; and (3) the grouping of attorneys into jus t five experience bands. DL , 267 F. Supp. 3d at 69

– 70

. Th ese observations suggest that as time passes, the Laffey matrix may well

— like shoulder pads, eight

- tracks, and other

’ 80s fads before it

—

be los ing its shine . In this particular case, however, the Dis trict raised no argument that these issues justify rate s somewhere between the two matrices. See Appellee’s Br. 25. Therefore, it has forfeited any such contention. Al

- Tamimi v. Adelson , 916 F.3d 1, 6 (D.C. Cir. 2019) (“A party forfeits an argument by fail ing to raise it in his opening brief.”).

D

. One last issue remains: the rates for plaintiffs’ only lawyer who regularly bills fee

- paying clients , Cyrus Mehri

. We see no reason why the rates that apply to the rest of plaintiffs’ lawyers16

would yield inadequate compensation for Mehri’s services

. P laintiffs contend that Mehri is instead entitled to his usual billing rate, but his sparse affidavit tells little about whether his relative ly minimal contributions to the case differ sufficiently from his colleagues ’ to warrant a different methodology

. Mehri Affidavit , No. 1:05

- cv

- 01437

- RCL, ECF No. 537

- 17 (Sept. 26, 2016), J.A. 428

– 29 (asserting he “did work related to class certification” and tried to “broker a resolution to this case”). As Eley instructs , the focus is properly on the market rate “charged by for

- profit lawyers” for “ the same type of litigation

. ” 793 F.3d at 105. And although stating in his affidavit that he charges the same rate no matter what type of work he performs, Mehri nowhe re represents that a client on the market would hire him at that rate for the types of services he performed in this case. Accordingly, the district court did not abuse its discretion by compensat ing Mehri using the same method as his co

- counsel

.
III. Not so long ago, the prevailing belief was that parties would often be able to agree on reasonable attorney ’s fee s

. See Hensley , 461 U.S. at 437 (“Ideally, of course, litigants will settle the amount of a fee.”). We regret that t his prophecy has gone unfu lfilled and fervently hope that practitioners in this circuit

— on both the plaintiff and defense sides of the bar

— will work together and think creatively about how to produce a reliable assessment of fees charged for complex federal litigation in the Distri ct

. In the meantime, however, we must discharge our duty to ensure that the adversarial alternative produces results that respect Congress’s mandates. Because the fee award in this case falls short of that goal, we vacate it and remand for further proceedi ngs consistent with this opinion.

So ordered.S E N TE L L E , Senior Ci r cu it Judge
, dissenting: Ambrose Bie rce define d a lawy er as “[o] ne skilled in circ umvention of the law.” Ambrose Bie rce , The Unabr idge d Devil’s Dictionary 147 (Univ. of Geor g ia Press 2000). Thoug h I do not sug g est that this is a n acc urate descr iption, I nonetheless would obse rve that the jurisprudenc e o f I DEA litigation attorney -fe e awa rds well establishes that lawy ers and jurists are profe ssionals skilled in complicating the law. The jurisprudential ody ssey on this sea beg an with a rather s t raightfor war d mandate from Congr ess in 20 U.S.C. § 1 4 1 5 (i )(3)
, a subsection heade d “Jurisdi ction of district courts; attorne y

fee s.” (Empha sis added.)

More specific ally
, Congr ess provided that, “[i] n any action

or proce eding broug ht [ under the I DEA provision providing judicial relief

], the court, in its discretion, may awa rd rea sonable attorney s’ fee s as part of th e co s ts.” 20 U.S.C. § 1415(i)(3) (B )(i). Whil e the followi n g subsections provide

some li m i tations and direc tions for the computation of the

awa rd, the basic task cre ated by Congr ess and place d within the jurisdiction of the district court is a fac tual deter mination of the

rea sonablene ss of attorney s’ fee s to be awa rd ed as p art of the
costs in I DEA actions. The cong ressional lang uag e would seem to rathe r straig htforwa

rdly call for findin gs o f fac t, conce rning the rea sonablene ss of attorney s’ fee s to be awa rded. The district
court in the prese nt controve rsy made such finding s which we

are now ca lled upon to review

. “[T] he standard g overnin g appellate revie w of a district court’s finding of [facts] is that set forth in Fe dera l Rule of Civil Procedur e 52 (a ). ” Anderson v. Bessem er City
, 470 U.S. 564, 573 (1985). Rule 52(a) provides that “[f]i ndings of fac t, whether b as ed on oral or other evidenc e, must not be set aside unless clea

rly err oneous

. . . .” Not only would it seem appar ent that this is the s tandar d of review we should be apply ing to the issues befor e us, it seems espec ially appropr iate wher e t he question is expressly descr ibed as wi thin the “jurisdiction of2

distr i ct co urts” in the enac tment cre ating the rig ht to such a finding . 20 U.S.C. § 1415(i)(3).

I ndee d
, we have expressly held in previous I DEA class litigation that “[w]e revie w the district co u rt ’s fee awa rd for abuse of d i s cr eti on, and will not upset its hourly rate deter mination ab sent clea

r misapplication of legal principles, arbitra ry fa ctfindi ng , or unprincipled disreg ard for the rec ord evidenc e.” Eley v. District of Columbia
, 793 F.3d 97, 103 (D.C. Cir. 2 0 1 5 ) (empha sis added) (interna l quotation marks and citations deleted)

. I n spite of this standard, in the pre sent case , the majority revie ws the distr i ct co urt’s deter mination of the fac tual questions befor e us, not for compliance with Rule 52(a)
, nor fo r ab u s e of di scre tion, but as i f i t wer e a question of l aw.

The majority asks not whether the district court committed

a clea r misapplication of leg al princi p l es, or arbitra ry fac tfinding, or unprincipl ed disreg ard for rec ord evidenc e, but rathe r whether the district court’s finding s of fac t fit within a detailed g rid, the Laffey Matrix, which might be construed as a proff er by t h e preva iling party for finding s of fac t, but more closely rese mbles a detailed reg ulation adopted by some g overnme nt agency afte r an appropr iate period of notice and
comment.

The district court found another matrix to be more fac tually
appropr iate. The making of that fac tual deter mination, under the law in g ener al an d under the g overning statute in particula r, is the district court’s province

. I g rant that we as an appellate revie wing court have participa ted in the establishment o f this legislation-like matrix

. I further rea liz e that we have the authority to establish prec edent binding upon district courts and
upon panels of this court such as this one. LaShawn A. v. Barry
, 87 F.3d 1389, 1395 ( D.C. Cir. 1996) (en banc) . Nonethele ss, I3

have alway s understood our authorit y to make binding
prec edents to g overn ma tters of law , not findings of fac t. The
prese nt controve rsy conce rns a matter of fac t. This, under the binding prec edent of both this circ uit and the Supreme Court and the Rules of C i v i l Procedur e is within the discretion of the district court, subject only to the limit ed revie w descr ibed above.

Whil e not nece ssary to my dissent, I further note that appellants proff

ere d nothing to convince me that the L SI Matrix pref err ed by them is inhere ntly more appropr iate for the finding s require d by the district court in this case than the USAO Matrix relied upon in the district court’s finding s. Appellan t s ’
arg ument rests on the proposition t h at the awa rd should have been based on fee s deter mined by survey o f a specific sub ca teg ory of attorney s out of the sever al set forth in their pref err ed matrix : specific ally
, prac titioners in complex fede ral litigation in Washington, D.C. The matrix employ ed by the district court instead considere d the rate s of a broade r sampling of attorney s from a broade r g eog raphic are a, including not only the District of Columbi a, but also adjacent portions of three
states. I t is not a

ppare nt how this wa s an abuse of discretion of the sort that would make the court’s deter mination reve rsible under the standard set forth in the rules and blessed in Anderson v. Be ssemer City , and a multitude of other case s.
Appellant s s eem to arg ue that the district court’s deter mination was inconsist ent with Congr ess’s ins tructions in section 1415(i)(3) (C). That section mandates that an I DEA fee

awa rd “shall be based on rate s prevai l i n g i n the community in which the action or proce eding arose for the kind and quality of

serv ices furnished.” I t does not mandate that the community should be li mited to a “c ommunity ” def ined as only the l arg est municipality in a reg ion, or to the highe st price d p ro fe s sional
prac ticing in that limited community

.4

As the purpose of Congr ess in setting fo rt h the g ener al limit ations of subsection (C) appea rs to en coura g e the deter mination of a marke t for assess i ng the rea sonablene ss of fee s, it would seem that an analy sis of the fitness of either

m at ri x to that deter

mination could, without violating the standard unde r which w e re view fa ctfinding , include re flec ting

on the rea sonablene ss of persons obtaining leg al repr esenta tion in s u ch a hy

pothetical marke t. I t might be that those persons would choose the most expensive profe ssionals for the most expensive part of the marke t. Whil e such conduct might not be

unrea sonable, neither is it inhere ntly u n rea sonable that they might choose a less imposing or less expensive attorney who is nonetheless trusted and competent to do the work in the case

. I t may s h ock counsel befor e us to lear n, but it is not nece ssary in

ever y case t o have the most specia liz ed or the most expensive

counse l in order to rec eive competent leg al service s. I n any event, it is not a

rbitrar y fac t f inding for the judg e to conduc t an analy sis of the evidenc e that is consistent with such supposition. I n short, I find no abuse of

discretion or othe r re versible e rror

.
My colleag ues disag ree . I respe ctfully dissent.