Getting Laffey Out of Court: Rethinking the Calculation of Reasonable Attorney Fees in FOIA Cases

• Pages: 18-28
• Date: 01 January 2022
• Author: Margaret N. Strouse
• Subject Matter: Administrative & Public Law

Published in Communications Lawyer: Volume 37, Number 1, ©2022 by the American Bar Association. Reproduced with

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Getting Laffey Out of Court: Rethinking the

Calculation of Reasonable Attorney Fees in FOIA Cases

By Margaret N. Strouse

Margaret N. Strouse is an associate with the Media and Entertainment Law Group at the Washington,

D.C., office of Ballard Spahr LLP.

When it works as intended, the Freedom of Information Act’s (FOIA) fee-shifting provision both deters

federal agencies from unlawfully withholding records and helps financially challenged requestors contest

withholdings in court.1 But in federal courts in the District of Columbia, where any FOIA lawsuit may

be brought and where a large portion of such suits are litigated, courts frequently undermine that goal

by awarding fees, not based on the hourly rates plaintiffs’ attorneys charged their clients, but by relying

instead on outdated and insufficient benchmarks published by the U.S. Attorney’s Office—the very office

charged with defending federal agencies in these cases. This table of purportedly reasonable hourly rates,

called the “USAO Matrix” or “Laffey Matrix,” and its slightly more reasonable but still problematic

cousin the “LSI Laffey Matrix,” should be retired in favor of fee awards based on rates that willing

plaintiffs agree to pay their lawyers. Until the D.C. Circuit does so, however, there are a number of

strategies FOIA plaintiffs’ counsel can pursue to obtain more equitable fee awards.

I� Hourly Fee Matrices Fail FOIA’s Fee-Shifting Policy

“What defendant neglects to acknowledge, however, is that plaintiffs’ fees reached this sum because

of defendant’s unyielding opposition at each and every stage of this case—including plaintiffs’

request for fees. Recognizing that it may be forced to pick up the check at the end of the day, defen-

dant may want to rethink its ght-to-the-death litigation strategy in the future—for the public

benet.”2

All too often, the government fails to suffer any consequences from its combative litigation style in FOIA

cases by evading the true costs of litigation under FOIA’s fee-shifting provision. After plaintiffs prevail on

the merits, litigation frequently becomes even more protracted over how much the government should be

required to pay.

If the FOIA case is litigated in D.C., courts frequently hold that attorneys are not entitled to their ordinary

hourly billable rate. Instead, the courts adhere to hourly rates determined by a matrix produced by the

U.S. Attorney’s Office for the District of Columbia (USAO) that are presumptively “reasonable.” FOIA

plaintiffs’ attorneys have recently advocated for use of another benchmark, the Legal Services Index (LSI)

Matrix, because it offers higher billable rates under a formula approved by some courts. Even still, the LSI

fails to accurately reflect market value of a FOIA attorney’s billable rate in complex federal litigation, or

sensibly calculate the going rate for such fees (the LSI rates are still below market rates).

These competing matrices complicate fee determinations by requiring plaintiffs to litigate which to use

instead of having the court determine an actual reasonable hourly rate. Indeed, the USAO Matrix and

LSI Matrix both woefully undervalue attorneys’ time. More than five years ago, the court in Salazar