Winston & Strawn LLP v. Federal Deposit Insurance Corporation

• Court: District Court, District of Columbia
• Decided: March 31, 2009
• Docket: Civil Action No. 2006-1120
• Status: Published

Opinion

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.

1 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

2 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

3 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.

4 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