UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
WINSTON & STRAWN LLP, et al., )
)
Plaintiffs, )
) Civil Action No. 06-1120(EGS)
v. )
)
FEDERAL DEPOSIT INSURANCE )
CORPORATION, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Before this Court is Plaintiff Don S. Willner & Associates’
motion for summary judgment on its claim for reasonable
attorneys’ fees and expenses under 12 U.S.C. § 1821(d)(6).
Plaintiff’s underlying action seeks de novo judicial review of
the Federal Deposit Insurance Corporations’ (“FDIC”)
administrative determination of plaintiff’s attorneys’ fees. At
issue is (1) whether Don S. Willner (“Willner”) should be paid at
the $250 per hour rate imputed by the FDIC or at the fair market
value rate in either Portland, Oregon or Washington, D.C. (“the
District”); (2) whether a 2.0 multiplier should be applied to
Willner’s fee award; and (3) whether this Court should reject
defendant’s reduction of 186.35 hours from Willner’s billed
hours. After careful consideration of the motion, the response
and reply thereto, this Court DENIES summary judgment without
prejudice.
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I. BACKGROUND
Plaintiff’s request for attorneys fees results from Willner’s
work as lead counsel in reducing a $1.2 billion Internal Revenue
Service tax claim to $50 million. Plaintiff represented 6,500
shareholders of Benjamin Franklin Federal and Loan Association of
Portland, Oregon after it was seized by the government on
February 21, 1990. When a Claims Court judge found that Benjamin
Franklin would have survived adverse economic conditions but for
a governmental break of contract, the shareholders filed suit
against the government in the United States Court of Federal
Claims. Willner argued and won a number of motions on behalf of
the shareholders. The reduction in the tax claim resulted from
a 2002 case in the United Stated District Court for the District
of Oregon.
Plaintiff filed a motion for summary judgment on attorneys
fees on February 2, 2007, which this Court denied without
prejudice on July 13, 2007. After unsuccessful attempts at
mediation and settlement, plaintiff filed the pending motion for
summary judgment.
II. DISCUSSION
A. Standard of Review
A court should grant summary judgment when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
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genuine issue as to any material fact” suitable for trial. Fed.
R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). The substantive law on which the claim or defense
rests dictates whether a factual issue is “material.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Such an issue
is “genuine” if its resolution could establish an essential
element of the nonmoving party's challenged claim or defense.
Celotex, 477 U.S. at 325.
B. Willner’s Hourly Rate
Plaintiff seeks $525 per hour for Willner’s work on this
case, which it considers the District’s fair market rate for
Willner’s work. As a backup, plaintiff argues that $450 is the
fair market rate for Portland and supports that number with
several affidavits. Defendant imputed a rate of $250 per hour
for Willner based on the highest fees charged by its outside
counsel in the areas around Portland and Seattle. Defendant’s
rate is supported in several other ways.
In Davis County Solid Waste Management v. Environmental
Protection Agency, 169 F.3d 755 (D.C. Cir. 1999), the D.C.
Circuit held that “Washington rates will apply so long as the
judicial forum is here, unless [1] the work done here is minimal
and [2] the difference in rates substantial.” Id. at 759.
Defendant makes a strong showing that the first prong of the
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Davis County exception is satisfied. There is a material fact in
dispute, however, with regard to the second prong. To calculate
the difference in Willner’s possible rates, there must be a
comparison between the fair market rates in the District and the
ones in Portland. Defendant argues that the rate is $250 per
hour; plaintiff argues that it is $450 per hour. This disputed
fact is material because although the difference between $525 and
$450 is small, the difference between $525 and $250 is
substantial. See id. (finding that a 70% rate difference is
substantial); Palmer v. Rice, 2005 WL 1662130, at *20 (D.D.C.
July 11, 2005) (finding that the difference between $140 and $370
is substantial).
Accordingly, plaintiff's request for summary judgment is
DENIED without prejudice. In view of the denial of summary
judgment, the court will request a Report and Recommendation from
U.S. Magistrate Judge John Facciola, pursuant to Local Rule 72.3
on the issue of plaintiff's reasonable hourly attorney fee rate.
Because the remaining attorney fee issues, the double multiplier,
and the disallowed time are related to the hourly rate issue, it
is premature to address those issues at this time. The Court
requests that Magistrate Judge Facciola shall likewise address
those related issues in his Report and Recommendation. Thus,
summary judgment on those related issues is likewise DENIED
without prejudice.
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III. CONCLUSION
Plaintiff’s motion for summary judgment is DENIED without
prejudice. The Court requests that U.S. Magistrate Judge
Facciola address the hourly rate, the double multiplier, and
disallowed time in his Report and Recommendation. An appropriate
Order accompanies this memorandum opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 31, 2009
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