Blackman v. Dc , 56 F. Supp. 3d 19 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
MIKEISHA BLACKMAN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 97-1629 (PLF)
) Claim of LaShawn Smith,
DISTRICT OF COLUMBIA, et al., ) parent and next friend of A.J.
)
Defendants. )
_________________________________________ )
OPINION AND ORDER
This action was filed under 42 U.S.C. § 1983 to enforce the rights of the plaintiff
class members under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.
Now before the Court are motions of class member LaShawn Smith for attorneys’ fees and costs
totaling $504,492.61. Defendant, the District of Columbia, opposes the motions. Upon
consideration of the parties’ papers, the relevant legal authorities, and pertinent portions of the
record in this case, the Court will grant plaintiff’s motion in part and deny it in part, and will
award attorneys’ fees in the amount of $321,355.14. 1
1
The papers considered in connection with the pending motions include: plaintiff’s
motion for attorneys’ fees and costs (“Fee Mot.”) [Dkt. No. 2407]; plaintiff’s supplemental
motion for attorneys’ fees and costs (“Supp. Fee Mot.”) [Dkt. No. 2433]; defendant’s opposition
to plaintiff’s motions (“Fee Opp.”) [Dkt. No. 2445]; plaintiff’s reply in support of her fee motion
(“Fee Reply”) [Dkt. No. 2460]; plaintiff’s motion for preliminary injunction (“PI Mot.”)
[Dkt. No. 2342]; defendant’s opposition to plaintiff’s motion for preliminary injunction (“PI
Opp.”) [Dkt. No. 2344]; plaintiff’s reply in support of her motion for preliminary injunction (“PI
Reply”) [Dkt. No. 2345]; plaintiff’s motion for temporary restraining order (“TRO Mot.”)
[Dkt. No. 2348]; defendant’s opposition to plaintiff’s motion for temporary restraining order
(“District’s TRO Opp.”) [Dkt. No. 2353]; Cesar Chavez Public Charter School’s opposition to
I. BACKGROUND
Plaintiff LaShawn Smith is the parent and next friend of A.J., an eleven-year-old
student eligible to receive special education and related services from the District of Columbia
Public Schools (“DCPS”). At the beginning of the 2012-2013 school year, A.J. was enrolled at
Cesar Chavez Public Charter School (“Chavez”), a public charter school that had designated
DCPS as its local educational agency under the IDEA. R&R at 2. After Chavez expelled A.J. on
April 17, 2013, plaintiff filed a due process complaint on April 18, 2013, and A.J. resumed
attending Chavez under 20 U.S.C. § 1415(j)’s “stay-put” provision. Id. at 2-3. After A.J. was
expelled again on April 30, 2013, plaintiff sought an interim placement at another school
pending resolution of plaintiff’s due process claim. Id. at 3. On May 31, 2013, an administrative
hearing officer issued a hearing officer determination (“HOD”) directing DCPS/Chavez to return
A.J. to Chavez within five school days and to implement the services necessary to address A.J.’s
disabilities within fifteen school days. Id. A second hearing was held on June 19, 2013, to
address issues remaining from the April 18 complaint. Id. at 4. On July 3, 2013, the hearing
officer issued another HOD ordering DCPS/Chavez to provide and fund – as compensatory
education for the denial of a free appropriate public education to A.J. – 36 hours of independent
tutoring and 36 hours of independent counseling. Id. at 5.
plaintiff’s motion for temporary restraining order (“Chavez’s TRO Opp.”) [Dkt. No. 2355];
plaintiff’s reply in support of her motion for temporary restraining order (“TRO Reply”)
[Dkt. No. 2357]; the August 23, 2013 Order granting in part and denying in part plaintiff’s
motion for temporary restraining order, which the Court converted to a motion for preliminary
injunction (“Aug. 23, 2013 Order”) [Dkt. No. 2361]; the Report and Recommendations of the
Special Master on plaintiff’s motion for preliminary injunction (“R&R”) [Dkt. No. 2415]; the
January 31, 2014 Order adopting the Report and Recommendations of the Special Master
(“Jan. 31, 2014 Order”) [Dkt. No. 2427]; the ADR Agreement between the District of Columbia
and the plaintiff class dated May 9, 2013; and the transcript of the motions hearing held on
August 22, 2013 (“Aug. 22, 2013 Tr.”) [Dkt. No. 2439].
2
When DCPS did not secure a place for A.J. at Chavez for the 2013-2014 school
year by August 7, 2013, plaintiff moved for a preliminary injunction. R&R at 6. In her motion,
plaintiff sought “(1) an order that A.J. be allowed to attend Chavez for the 2013-2014 school
year, (2) an order that DCPS and Chavez fund the [Functional Behavioral Analysis] FBA and
compensatory education hours ordered by the July 3 HOD, and (3) an order that Chavez hold an
IEP meeting prior to the first day of school, to discuss, inter alia, how the 20 hours of interim
services authorized by DCPS will be used, in compliance with the Jones ADR agreement.” Id.
In reply, the District argued, inter alia, that DCPS “had no authority to force Chavez to accept
A.J. as a returning student” because Chavez is a charter school. Id.
The Court referred the preliminary injunction motion to Special Master Elise
Baach. See Minute Order dated August 7, 2013. The parties presented their arguments to the
Special Master on August 12, 2013. R&R at 6. The Special Master concluded that the motion
required further briefing from the parties, which could not be prepared, submitted and reviewed
in time for a decision from the Court before the start of the 2013-2014 school year. Id. at 6-7. In
the interim, A.J. and DCPS, through its General Counsel’s Office, agreed that A.J. was to return
to Chavez beginning on August 26, 2013, the first day of school; but Chavez refused to accept
A.J. as a returning student. Id. at 7. Plaintiff then filed a motion before this Court for a
temporary restraining order (“TRO”), which sought an order that DCPS and Chavez implement
the May 31 and July 3 HODs. Id. DCPS and Chavez filed separate oppositions and plaintiff
filed a reply; a hearing was convened before the Court on August 22, 2013. Id. At the hearing,
the Court converted the TRO motion into a motion for preliminary injunction with respect to
A.J.’s placement at Chavez, found that the District’s position was meritless, and ordered
DCPS/Chavez to re-enroll A.J. at Chavez by August 26, 2013, the first day of school.
3
See Aug. 23, 2013 Order at 2. The Court also noted the importance of the case, observing that
the matter “ha[d] implications for all the charter schools in the District of Columbia[.]” Aug. 22,
2013 Tr. at 4. 2
On August 26, 2013, the parties presented their arguments to the Special Master
who ultimately recommended that the request for injunctive relief be granted. See R&R at 8, 14.
The Court subsequently approved the Special Master’s Report and Recommendations and
granted the motion for preliminary injunction. See Jan. 31, 2014 Order. 3
Plaintiff now moves for an award of $501,812.00 in attorneys’ fees and $2,680.61
in costs for the time and effort involved in obtaining injunctive relief and implementation of the
HODs.
II. LEGAL STANDARD
Under the IDEA, plaintiffs are entitled to reimbursement of “reasonable
attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child with a
disability.” See 20 U.S.C. § 1415(i)(3)(B); see also Blackman v. District of Columbia, 633 F.3d
1088, 1089 (D.C. Cir. 2011). When determining the award of attorneys’ fees and costs in special
education cases like this one, the Court must decide whether the fees sought are reasonable by
calculating “the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate” – the so-called “lodestar” fee. Hensley v. Eckerhart, 461 U.S. 424, 433
2
The Court made clear that its ruling “[did] not resolve the plaintiff’s originally
filed motion for preliminary injunction, still pending before [the Special Master],” and that “a
decision on that motion [would] resolve plaintiff’s claim on the merits.” Aug. 23, 2013 Order at
2 n.1.
3
Specifically, the Court ordered that the defendants continue to maintain A.J.’s
placement at the Cesar Chavez Public Charter School until such a time as a change in placement
is made that is in accordance with the procedural protections provided for by the IDEA, and that
the defendants continue to provide services to A.J. as ordered in Hearing Officer determinations
dated May 31 and July 3, 2013. See Jan. 31, 2014 Order.
4
(1983). See e.g., In re Olson, 884 F.2d 1415, 1423 n.13 (D.C. Cir. 1989); Sierra Club v. Jackson,
926 F. Supp. 2d 341, 346 (D.D.C. 2013).
A plaintiff must submit supporting documentation with the motion for attorneys’
fees, providing sufficient detail so that the Court can determine “with a high degree of certainty”
that the hours billed were actually and reasonably expended, that the hourly rate charged was
reasonable in view of the attorney’s reputation and level of skill and experience with respect to
this type of case, and that the matter was appropriately staffed to do the work required efficiently
and without duplicative billing. In re Olson, 884 F.2d at 1423, 1428-29 (emphasis in original)
(internal quotation omitted); see Hensley v. Eckerhart, 461 U.S. at 433; Covington v. District of
Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995); Blackman v. District of Columbia, 397 F. Supp.
2d 12, 14 (D.D.C. 2005). At a minimum, a fee applicant must provide some information about
the attorney’s billing practices, hourly rates, and skill and experience, as well as the nature of the
attorney’s practice as it relates to this kind of litigation and the prevailing market rates in the
community. Rooths v. District of Columbia, 802 F. Supp. 2d 56, 60 (D.D.C. 2011); Blackman v.
District of Columbia, 397 F. Supp. 2d at 14-15.
Once a plaintiff has provided such information, there is a presumption that the
number of hours billed and the hourly rate are reasonable, and the burden shifts to the defendant
to rebut the plaintiff’s showing of reasonable hours and reasonable hourly rates for attorneys of
the relevant level of skill and expertise. See Watkins v. Vance, 328 F. Supp. 2d 23, 26
(D.D.C. 2004). “[I]n the normal case the Government must either accede to the applicant’s
requested rate or provide specific contrary evidence tending to show that a lower rate would be
appropriate.” Covington v. District of Columbia, 57 F.3d at 1109-10 (quoting Nat’l Ass’n of
5
Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1326 (D.C. Cir. 1982)); see also Rooths v.
District of Columbia, 802 F. Supp. 2d at 60.
III. DISCUSSION
Plaintiff seeks fees, costs, and expenses for work done by twelve attorneys and
one paralegal at the Judge David L. Bazelon Center for Mental Health Law (“Bazelon Center”),
University Legal Services (“ULS”), Crowell & Moring, and Steptoe & Johnson. In support of
her motion for fees, plaintiff has submitted declarations attesting to the experiences and billing
practices of the attorneys and the paralegal who worked on this case. See First Declaration of
Emily B. Read (“First Read Decl.”), Fee Mot. Ex. 3; Declaration of Shawn R. Ullman
(“Ullman Decl.”), Fee Mot. Ex. 2; Declaration of Laurel Pyke Malson (“Malson Decl.”), Fee
Mot. Ex. 4; Declaration of Jane I. Ryan (“Ryan Decl.”), Fee Mot. Ex. 5; Supplemental
Declaration of Emily B. Read (“Supp. Read Decl.”), Supp. Fee Mot. Ex. 2; Second Supplemental
Declaration of Emily B. Read (Second Supp. Read Decl.”), Fee Reply Ex. 1. Most of the
declarations include or have as attachments invoices documenting the hours billed and the bill of
costs. See Read Decl.; Ullman Decl.; Malson Decl.; Ryan Decl.; Supp. Read Decl.
The District opposes the fee motions on the grounds that both the hourly rates and
the number of hours billed by plaintiff’s counsel are unreasonably high. See Fee Opp. 4 These
arguments are addressed in turn.
4
The District does not contest that plaintiff is a prevailing party. The Court
therefore need not engage in the preliminary inquiry regarding whether the fee applicant is the
prevailing party.
6
A. The Hourly Rates Are Reduced In Part
1. Bazelon Center and University Legal Services
Plaintiff seeks fees for the services of five attorneys from the Bazelon Center,
which focuses primarily on the field of mental disability law, to be paid at the following rates:
$510 per hour for Ira Burnim, an attorney with 36 years of legal experience, 25 years in the field
of special education; $450 per hour for Lewis Bossing, an attorney with 14 years of legal
experience, six years in the field of special education; $360 per hour for Emily Read, an attorney
with nine years of legal experience, three years in the field of special education; $360 per hour
for Julia Graff, an attorney with eight years of legal experience, three years in the field of special
education; and $250 per hour for Todd Rubin, an attorney with one year of legal experience,
primarily in the field of special education. Billing Entries at 3, Fee Mot. Ex. 1; see Read Decl.
¶¶ 2, 10, 11, 16, 19, 22, 26. Plaintiff also seeks fees at the rate of $450 per hour for the services
of Shawn Ullman, an attorney with ULS with twelve years of experience primarily in the field of
special education. Billing Entries at 3; see Ullman Decl. ¶¶ 2-8.
The hourly rates invoiced for the Bazelon Center and ULS attorneys are the
equivalent of those established by the so-called Laffey Matrix. See Laffey Matrix – 2003-2014,
available at http://www.justice.gov/usao/dc/divisions/Laffey_Matrix%202014.pdf. That
schedule of attorneys’ fees, first developed based on information about the prevailing rates
charged by federal litigators in the District of Columbia, is maintained by the United States
Attorney’s Office for the District of Columbia. See id. nn.1-3. In this Circuit, the rates
contained in the Laffey Matrix are typically treated as the highest rates that will be presumed to
be reasonable when a court reviews a petition for statutory attorneys’ fees. See Rooths v.
7
District of Columbia, 802 F. Supp. 2d at 61; Blackman v. District of Columbia, 59 F. Supp. 2d
37, 43 (D.D.C. 1999).
The District argues that the hourly rates for all attorneys in the case should be
reduced to three-quarters of the relevant Laffey rates. Fee Opp. at 13. Many judges of this
Court, including the undersigned, generally cap attorneys’ fees at three-quarters of the Laffey
rate for routine IDEA cases – where the claims involve “simple facts, little evidence, and no
novel or complicated questions of law.” Rooths v. District of Columbia, 802 F. Supp. 2d at 63;
see also McAllister v. District of Columbia, — F. Supp. 2d —, 2014 WL 2921020, at *4
(D.D.C. 2014); Sykes v. District of Columbia, 870 F. Supp. 2d 86, 96 (D.D.C. 2012). 5 In
complex cases such as this one, however, skilled litigators may be compensated at full Laffey
rates. See Thomas v. District of Columbia, 908 F. Supp. 2d 233, 246-48 (D.D.C. 2012); Sykes v.
District of Columbia, 870 F. Supp. 2d at 95; Blackman v. District of Columbia, 677 F. Supp. 2d
169, 177, 178-79 (D.D.C. 2010) (applying Laffey rates in full to complex work performed by
Bazelon Center attorneys in this case), aff’d, 633 F.3d 1088 (D.C. Cir. 2011). Plaintiff has
sufficiently demonstrated the attorneys’ skill levels and experience with special education law, as
well as the complexity of this case. The Court therefore awards full Laffey rates for the Bazelon
Center and ULS attorneys. 6
5
Plaintiff urges this Court to revisit its conclusion that full Laffey rates are
inappropriate for routine IDEA cases. Fee Reply at 17-18; see Eley v. Dist. of Columbia, — F.
Supp. 2d —, 2013 WL 6092502, at *15-16 (D.D.C. Nov. 20, 2013) (Howell, J.) (concluding that
“the complexity of the case is accounted for by the number of hours expended and should not be
accounted for by a blunt reduction of rates before applying the rates to the number of hours
expended”) (citing Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542 (2010)). Because the Court
finds that this IDEA case involves complex legal issues, it need not address this argument.
6
It was the litigating posture of the District of Columbia that made the case more
complicated than it needed to be. DCPS asserted throughout: (1) that it had no authority to
enforce an HOD or court directive ordering A.J.’s return to Chavez and that DCPS counsel did
8
2. Crowell & Moring and Steptoe & Johnson
Plaintiff also seeks fees for the services of four attorneys and one paralegal from
Crowell & Moring, to be paid at the following rates: $510 per hour for Laurel Malson, an
attorney with 34 years of legal experience; $450 per hour for Jennifer Knight, an attorney with
12 years of legal experience; $295 per hour for Luke van Houwelingen, an attorney with six
years of legal experience; $250 per hour for Adam Teitelbaum, an attorney with one year of legal
experience; and $145 per hour for paralegal Arvind Miriyala. Billing Entries at 3; see Malson
Decl. ¶¶ 3-4, 7-9, 11-12, 13-14. In addition, plaintiff seeks fees for the services of three
attorneys from Steptoe & Johnson, to be paid at the following rates: $510 per hour for Jane
Ryan, an attorney with 31 years of legal experience; $510 per hour for Lindsey Lang, an attorney
with 31 years of legal experience; and $250 per hour for Latoya Brisbane, an attorney with three
years of legal experience. Billing Entries at 3; Supplemental Billing Entries at 4-5, Supp. Fee
Mot., Ex. 1; see Ryan Decl. at 1, ¶¶ 1-2; id. at 2-3, ¶¶ 1-4; id. at 4, ¶¶ 1-2.
Again, the District argues that the hourly rates in the case should be reduced to
three-quarters of the relevant Laffey rates. Fee Opp. at 13. As with the Bazelon Center and ULS
attorneys, the plaintiff has established both the considerable skill and experience of these
not represent Chavez at least at the second due process hearing, despite the fact that Chavez is a
DCPS charter school and is Chavez’s local educational agency; (2) that the Office of the State
Superintendent, the state educational agency, through its Student Hearing Office, did not have
the authority to order Chavez to readmit A.J. after his expulsion; (3) that Ms. Smith had
withdrawn A.J. from Chavez and then had failed to properly reenroll A.J. at Chavez, placing him
at the end of a long waiting list and jeopardizing his return to Chavez; (4) that Ms. Smith had
waived the relief provided by the first HOD because she kept him at his interim alternative
educational placement for the last two weeks of the 2012-2013 school year; and (5) that no
change in “educational placement” had been effected for A.J. See, e.g., Aug. 22, 2013 Tr. at
50-51; First Read Decl. ¶¶ 35, 39, 41-42; Second Supp. Read Decl. ¶¶ 8, 9, 14, 16, 21-24;
Malson Decl. ¶¶ 20, 24-26. Much of the extensive litigation in this case could have been
avoided had DCPS simply honored its obligations under the IDEA and the Consent Decree in
this case and implemented the HODs according to their terms.
9
attorneys as well as the complexity of the present matter. Accordingly, the Court declines to
reduce the hourly rate of the Crowell & Moring and Steptoe & Johnson attorneys. See Blackman
v. District of Columbia, 677 F. Supp. 2d at 173-75 (applying Laffey rates to complex work
performed by Steptoe & Johnson litigators in this case).
The District further challenges the addition of the Crowell & Moring attorneys,
claiming that plaintiff is improperly seeking expert costs by billing for these attorneys’ hours.
Fee Opp. at 19-21. While plaintiff acknowledges that the cost of retaining experts is not
reimbursable in IDEA litigation, she maintains that the Crowell & Moring lawyers were retained
as counsel, not as experts. See Fee Mot. at 2 n.2; Fee Reply at 8. Crowell & Moring also points
out that while it did in fact retain an expert in this case, Dr. Neal Horen, it has not sought
reimbursement for those expenses and absorbed the cost of his services. Fee Reply at 9. The
Court has reviewed the relevant billing entries and finds nothing to indicate that the Crowell &
Moring attorneys were acting as anything other than lawyers, and it therefore will reject the
District’s argument as meritless.
3. Fees on Fees Rates
The District also contends that the $126,651 in fees sought for preparation of the
fee petitions are unreasonable and should be denied or at least awarded at no more than half the
Laffey rates. Fee Opp. at 25. Unlike the litigation on the merits of this case, the Court agrees
that fee litigation usually is not complex and it does not appear to have been particularly complex
in this case. See Wright v. District of Columbia, 883 F. Supp. 2d 132, 135 (D.D.C. 2012) (“fee
litigation is not complex and does not necessarily entail specialized expertise and experience”).
Indeed, it typically involves simply calculating the number of hours spent by each lawyer
involved in the matter, writing off time where appropriate because of inefficiencies, overstaffing,
10
or other matters involving the exercise of billing judgment, and then multiplying by the hourly
rate of the relevant lawyer.
In this case, most of the time spent in the preparation of the fee petition and
supplemental fee petition – 162 hours – was the time of a very senior lawyer at Steptoe &
Johnson, a lawyer who billed at the highest Laffey rate, $510 per hour. If Steptoe was to take the
laboring oar for all entities, she understandably needed to consult with at least one lawyer each
from the Bazelon Center and Crowell & Moring, as well as with Mr. Ullman, the only ULS
lawyer involved. There is no reason, however, why most of the work done in the preparation of
the fee petitions could not have been performed by a more junior (and less expensive) attorney at
Steptoe and, indeed, at each of the four entities involved. Accordingly, the Court will apply the
Laffey rate for more junior lawyers involved in this case from the Bazelon Center, Crowell &
Moring, and Steptoe, as well as Mr. Ullman’s Laffey rate: for Bazelon Center lawyers, Emily
Read’s rate ($360 per hour); for Crowell lawyers, Luke van Houwelingen’s rate ($295 per hour);
for Steptoe lawyers, Latoya Brisbane’s rate ($250 per hour), and for ULS, Shawn Ullman’s rate
($450 per hour). Then, consistent with this Court’s normal practice in non-complex cases, it will
award fees at three-quarters of each of those hourly rates. See, e.g., Rooths v. District of
Columbia, 802 F. Supp. 2d at 63.
B. The Hours Billed Are Reduced in Part
The District makes a blanket argument that plaintiff’s fees should be reduced
because they are excessive considering the nature of this action. To support this argument, the
District provides a comparison of the fees requested here and a range of fees awarded in other
IDEA administrative actions. See Fee Opp. at 13-17. The District’s comparison, however, is not
probative, as each case must be judged on its own merits. See Hensley v. Eckerhart, 461 U.S. at
11
429 (concluding that the fee amount “must be determined on the facts of each case”). While this
fee request undoubtedly is much larger than the typical fee request in a routine IDEA case, the
Court already has pointed out that this is not a typical IDEA case. The issues involved here were
complex and time-consuming and have broad implications for all charter schools in the District
of Columbia. Furthermore, as note supra at note 6, the complexity was a direct result of the
District of Columbia’s having failed to provide services to A.J. in part by claiming, on multiple
occasions, to have no authority over Chavez, a DCPS charter school. See R&R at 6-7. 7
In addition, most of the District’s objections with respect to the number of hours
are broadly based and lack specificity. See Miller v. Holzmann, 575 F. Supp. 2d 2, 22 n.33
(D.D.C. 2008) (“the party challenging an application for fees should frame its objections with
specificity”) (quoting Donnell v. United States, 682 F.2d 240, 250 (D.C. Cir. 1982)), vacated in
part on other grounds, 786 F. Supp. 2d 110 (D.D.C. 2011). The Court will not reduce the overall
award simply based on the District’s general objection that the hours billed are excessive. The
7
The Court finds it remarkable that after nearly seventeen years of litigation and a
Consent Decree that was agreed to and approved on August 24, 2006, the District of Columbia
would now take the position that DCPS has no authority over Chavez, a DCPS charter school,
and maintain that the District of Columbia cannot require a DCPS charter school – or any charter
school, for that matter – to accept or re-enroll a special needs student. Paragraph 23 of the
Consent Decree provides that the word “schools” as used throughout the Consent Decree refers
to “all schools serving District of Columbia special education students, including . . . charter
schools. . . .” Consent Decree ¶ 23, Blackman v. District of Columbia, 2006 WL 2456413, at *8
(D.D.C. Aug. 24, 2006). Furthermore, in a document filed on December 14, 2007 and entitled
“Statement of Defendant District of Columbia Accepting Legal Responsibility for Ensuring
Timely Hearings and Timely Implementation of HOD’s and SA’s for Charter School Students”
[Dkt. No. 2036], the District of Columbia represented to the Court that the District of Columbia
“is responsible for ensuring that charter schools timely implement HODs and SAs.” Id. at 2.
Nevertheless, in this case, the District of Columbia maintained that if this Court were to order
that A.J. be returned to Chavez, a DCPS charter school, “DCPS doesn’t have any mechanism or
specific authority that would allow it to make that happen.” Aug. 22, 2013 Tr. at 23; see id. at
25-26, 51. The District of Columbia took the same position before the Special Master and the
Hearing Officer. See R&R at 6 (defendant argued that “no matter how the HOD was read,
DCPS would have no authority to force Chavez to accept A.J. as a returning student.”); First
Read Decl. ¶¶ 34, 39, 41; Second Supp. Read Decl. ¶¶ 9, 14, 15, 16, 21.
12
Court separately addresses the District’s more specific objections to plaintiff’s motion for fees in
the following paragraphs.
The District argues that plaintiff improperly invoiced for Mr. van Houwelingen’s
attendance at a resolution session as part of a bundled entry for May 9, 2013 for 11.30 hours,
asserting that Congress has expressly prohibited fees for participation in resolution sessions. Fee
Opp. at 21. See 20 U.S.C. 1415(i)(3)(D)(iii). Plaintiff explains that when drafting the motion,
she excluded .90 hours from the original 12.20 hours entry for the resolution session, yet
inadvertently left “[p]articipate in resolution session” in the bundled description. Fee Reply at
9-10. Although the District is only able to point to one error on the invoice, the burden is on
plaintiff to show accurate record keeping. Accordingly, the Court reduces the May 9 billing
entry by two hours.
The District next argues that plaintiff’s request for $34,982 in fees for research
should be subsumed in counsel’s hourly rates, asserting that compensation would result in double
recovery for counsel’s both purportedly having expertise in the field of special education and
developing that expertise during the litigation of this case. Fee Opp. at 21-22. Plaintiff
disagrees, relying in part on Harvey v. Mohammed, 951 F. Supp. 2d 47, 58-59 (D.D.C. 2013)
(holding that plaintiff could be compensated for attorney hours spent acquiring expertise in
complex case). See Fee Reply at 20. While the Court agrees that even an expert in the field
must keep up with the law in his or her area of practice, it might well be concerned if non-experts
were being compensated from public funds for “learning on the job,” particularly when the Court
is already awarding fees at full Laffey rates. In this case, however, the District’s own untenable
legal positions before the hearing officer, the Special Master, and this Court forced plaintiff’s
13
counsel to research many novel questions of law under tight time constraints. See Second Supp.
Read Decl. ¶¶ 9, 14, 16, 21-24. In these circumstances, the District’s argument is rejected.
The District also challenges $35,032 in fees for implementation of the hearing
officer decision (“HOD”), arguing that the Court has no legal authority to award implementation
fees. Fee Opp. at 23. The District’s argument – as it well knows – is inconsistent with the
binding ADR agreement that it entered into with plaintiffs on May 9, 2013. That agreement
expressly states that implementation fees in this case are compensable and further notes that
plaintiff “may seek an award for the total amount of implementation fees from the United States
District Court.” ADR Agreement dated May 9, 2013 at 5-7. The Court finds the implementation
fees to be reasonable and thus compensable.
Finally, the District contends that plaintiff overstaffed the case by using too many
attorneys. Fee Opp. at 17. It emphasizes that plaintiff seeks $83,576.70 for lawyers participating
in “excessive conferences with each other.” Id. at 22-23. The District also cites several
occasions where five attorneys billed for appearing at hearings and conferences on behalf of the
plaintiff when it was unnecessary for all five to attend. Id. at 19. The District further argues that
Mr. Burnim, Ms. Malson, Ms. Knight, Mr. Bossing, and Mr. Rubin had minimal involvement in
the matter, their services consisting mainly of reviewing documents and conferring with other
attorneys; thus, the billing entries for these attorneys are alleged to be excessive and
unwarranted. Fee Opp. at 18. The District’s point with respect to all but Mr. Rubin is well
taken. 8 While some general oversight, collaboration and communication among attorneys – and
supervision of more junior lawyers by those more experienced – is necessary in any complex
8
Mr. Rubin played a critical role in this case with substantive and time-consuming
responsibilities commensurate with what would be expected of a first or second-year associate.
See Read Decl. ¶¶ 19-21.
14
case, the Court agrees with the District that the billing records here often show multiple attorneys
attending hearings and conferences, multiple attorneys working on the same legal issue, and a
good deal of consultation and document review by lawyers not essential to litigating the case.
The Court therefore will reduce the total compensable number of hours for the merits litigation
(but not the fee litigation) in this case by an additional 30%. See Copeland v. Marshall, 641 F.2d
880, 891 (D.C. Cir. 1978) (en banc) (“[W]here three people are present at a hearing when one
would suffice, compensation should be denied for the excess time.”); Smith v. District of
Columbia, Civ. Action No. 02-0373 (AK), 2005 WL 914773, at *5 (reducing time entries by
50% after finding it unnecessary for three attorneys to attend a hearing).
C. Costs Are Not Awarded
The District argues that all costs and expenses should be denied because plaintiff
fails to present sufficient detail regarding any costs and expenses. Fee Opp. at 26. The District
also notes that certain of these costs are not authorized by statute: “meal” for $18.11, “parking”
for $66, long distance telephone charges for $81.55, and “delivery services” totaling $260.85.
Id. See 28 U.S.C. § 1920 (permitting certain costs, such as fees for printing and copying);
Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 301 (2006) (noting that the
term “costs” in IDEA cases are defined and limited by the list in 28 U.S.C. § 1920). As the
plaintiff has billed for unauthorized costs and expenses and has provided little detail on
potentially authorized costs, the Court cannot determine the reasonableness and necessity of the
billed costs and expenses. The Court declines to award plaintiff anything for costs and expenses.
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For the foregoing reasons, it is hereby
ORDERED that plaintiff’s motion for attorneys’ fees [Dkt. No. 2407] and her
supplemental motion for attorneys’ fees [Dkt. No. 2433] are GRANTED in part and DENIED in
part; and it is
FURTHER ORDERED that the District of Columbia shall pay plaintiff
$321,355.14 in attorneys’ fees on or before September 26, 2014. If this amount is not paid on or
before September 26, 2014, it will bear interest at the rate established by 28 U.S.C. § 1961 from
September 26, 2014. A calculation of the fees awarded by this Order is reproduced in the
Appendix.
SO ORDERED.
/s/__________________________
PAUL L. FRIEDMAN
DATE: August 29, 2014 United States District Court
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APPENDIX A: ATTORNEYS’ FEES AWARDED
Hours
Accepted Hourly Rate
Hours by the Hourly Rate Applied by the Fees per
Attorney/Paralegal Billed Court Billed Court Attorney/Paralegal
General Litigation: -30% Full Laffey
Burnim 4.6 3.2 $510.00 $510.00 $1,632.00
Bossing 12.4 8.7 $450.00 $450.00 $3,915.00
Read 229.4 160.6 $360.00 $360.00 $57,816.00
Graff 76.2 53.35 $360.00 $360.00 $19,206.00
Rubin 174 121.8 $250.00 $250.00 $30,450.00
Ullman 156.8 109.75 $450.00 $450.00 $49,387.50
Malson 29.2 20.45 $510.00 $510.00 $10,429.50
Knight 60.3 42.2 $450.00 $450.00 $18,990.00
van Houwelingen 191.4 134 $295.00 $295.00 $39,530.00
Teitelbaum 153.2 107.25 $250.00 $250.00 $26,812.50
Miriyala 27.3 19.1 $145.00 $145.00 $2,769.50
SUBTOTAL: 1114.8 780.4 $260,938.00
Fees on Fees Litigation: 3/4 Laffey
Bossing 19.9 19.9 $450.00 $270.00 $5,373.00
Read 12.7 12.7 $360.00 $270.00 $3,429.00
Graff 0.5 0.5 $360.00 $270.00 $135.00
Rubin 2.75 2.75 $250.00 $187.50 $515.63
Ullman 9.7 9.7 $450.00 $337.50 $3,273.75
Malson 11.3 11.3 $510.00 $221.25 $2,500.13
van Houwelingen 49.9 49.9 $295.00 $221.25 $11,040.38
Miriyala 4.7 4.7 $145.00 $145.00 $681.50
Lang 162.5 162.5 $510.00 $187.50 $30,468.75
Brisbane 7.3 7.3 $250.00 $187.50 $1,368.75
Ryan 8.7 8.7 $510.00 $187.50 $1,631.25
SUBTOTAL: 289.95 289.95 $60,417.14
TOTAL: 1,404.75 1,070.35 $321,355.14
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