Jones v. District of Columbia ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANISSA JONES,
mother of the minor child D.M.,
Plaintiff, Civil Action No. 15-cv-01505 (BAH)
v. Chief Judge Beryl A. Howell
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
The plaintiff, Anissa Jones, seeks attorney’s fees and costs, totaling $87,738.93, pursuant
to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3)(B)(i)(1),
from the defendant District of Columbia (“the District”) for her counsel’s services over thirty
months, from November 2014 through June 2018, in preparing for, substantially prevailing at,
and implementing relief granted by a due process administrative proceeding, as well as
implementing additional relief awarded in the plaintiff’s successful appeal in this Court. Pl.’s
Mot. Atty’s Fees & Costs (“Pl.’s Mot.”), ECF No. 51; Pl.’s Suppl. to Pl.’s Mot. for Atty’s Fees
& Costs (“Pl.’s Suppl. Mot.”), ECF No. 52. The parties have already reached a settlement
regarding the amount of attorney’s fees incurred litigating the plaintiff’s IDEA claims in this
Court, see Notice of Settlement, ECF No. 40; Pl.’s Resp. to July 26, 2017 Order to Show Cause
(“Pl.’s Resp. OTSC”) at 1, ECF No. 42, but the District objects to the hourly rate at which the
plaintiff seeks reimbursement for the remaining fees incurred litigating her IDEA claims
administratively and implementing the relief awarded.
Specifically, the District contends that the reimbursement rate should be, at most, 75% of
the hourly rate provided in the Attorney’s Fees Matrix for 2015-2019, prepared by the Civil
1
Division of the U.S. Attorney’s Office for the District of Columbia (“USAO Matrix”), rather
than the full hourly rate set out in that matrix, see Def.’s Opp’n Pl.’s Mot. Atty’s Fees (“Def.’s
Opp’n”) at 5-18, ECF No. 53, with additional across-the-board reductions, up to complete denial
of any fees, because the plaintiff achieved only “partial success” and allegedly protracted the
litigation by rejecting the District’s settlement offer, see Def.’s Opp’n at 18-20.
The Magistrate Judge to whom this matter was referred recommended that plaintiff’s
motion be granted in part and denied in part, after agreeing with the District’s position on the
reimbursement rate of 75% of the USAO Matrix, compounded by a further across-the-board
reduction of 10% based on the degree of success obtained, and proposing that the plaintiff be
awarded a total of $63,191.87 in fees and costs. See Magistrate Judge’s Report and
Recommendation (“Atty’s Fees R&R”) at 1, 26, ECF No. 55. At the same time, the Magistrate
Judge rejected the District’s argument that no additional fees should be paid after finding that the
District never made a valid settlement offer to the plaintiff. Id. at 29-30.
The plaintiff timely filed objections, see Pl.’s Objections to the October 23, 2018 Report
and Recommendation of Magistrate Judge Harvey (“Pl.’s Obj.”), ECF No. 58, which were fully
briefed as of January 22, 2019. For the reasons set forth below, the plaintiff’s objections to the
Magistrate Judge’s recommendation are sustained, the plaintiff’s motion is granted, in substantial
part, and the plaintiff is awarded $87,543.03 in attorney’s fees and costs.1
I. BACKGROUND
1
The plaintiff requested $87,738.93 in attorney’s fees and costs, but the amount awarded will be reduced by
$195.90 to reflect photocopying costs of $0.15 per page, rather than the $0.25 per page originally sought, see Pl.’s
Invoice at 20, in accordance with the Magistrate Judge’s recommendation, Atty’s Fees R&R at 25, to which no
objection was raised by either party, Pl.’s Mem. Supp. Obj. to Atty’s Fees R&R (“Pl.’s Obj. Mem.”) at 3, ECF No.
58-2; see generally Def.’s Opp’n; Local Civ. R. 72.3(b) (“The objections shall specifically identify the portions of
the proposed findings and recommendations to which objection is made and the basis for the objection” and
“[f]ailure to file timely objections may waive appellate review of a District Court order adopting the magistrate
judge’s report.”).
2
The plaintiff is the mother of D.M., a District of Columbia Public Schools (“DCPS”)
student, who is eligible for special education and related services under the IDEA as a child with
a disability, Emotional Disturbance (“ED”). Pl.’s Mot., Ex. 1 (Hearing Officer Determination,
issued June 22, 2015 (“2015 HOD”)) at 1, ECF No. 51-3;2 see also Mag. J. Report &
Recommendation, dated Jan. 31, 2017 (“2017 R&R”) at 2, ECF No. 30 (granting part of
additional relief plaintiff requested in appeal from 2015 HOD). The facts underlying the
administrative action and implementation efforts, for which the plaintiff now seeks attorney’s
fees and costs, have been fully set out in both the 2015 HOD and the 2017 R&R and thus are
only briefly summarized below.
A. First Administrative Action
D.M. was evaluated for various behavioral and learning disabilities as early as 2011 and
found eligible for special education under the IDEA in 2012, when D.M. was in the second
grade. 2015 HOD at 12 ¶ 33; 2017 R&R at 2. His initial Individualized Education Program
(“IEP”), developed in April 2012, required that D.M. be provided with 16 hours per week of
specialized instruction outside of general education, plus substantial additional behavioral
support services. 2015 HOD at 12 ¶ 35. Although he apparently progressed under that IEP
regime, id. at 13 ¶ 40, his IEPs were subsequently modified to reduce the hours of special
education, id. at 14-15 ¶ 49; 2017 R&R at 4-5. By the 2014-2015 school year, when D.M. was
in the fifth grade, he was placed in a general education classroom, over the plaintiff’s objection,
2015 HOD at 25 ¶ 108; 2017 R&R at 5. D.M.’s behavior began a marked decline reflected by
D.M. being aggressive, hyperactive, and disruptive with suicidal ideation. See, e.g., 2015 HOD
at 25 ¶¶ 109-118; id. at 30 ¶ 144; id. at 31 ¶ 149; id. at 43 ¶¶ 196-97.
2
Pincite citations to the 2015 HOD contain both the page number and paragraph since the paragraphs are not
numbered sequentially throughout the document.
3
D.M.’s behavioral decline prompted the plaintiff and her counsel, after counsel’s
retention in November 2014, to make repeated requests in late 2014 through April 2015 for
DCPS to reevaluate D.M. and provide him with additional services, plus a dedicated aid. See,
e.g., id. at 27 ¶¶ 119-123; id. at 33 ¶ 159; id. at 40 ¶¶ 180-81; id. at 44 ¶ 203. DCPS made no
changes to his IEP, id. at 34 ¶¶ 163-169; id. at 39 ¶ 177, until April 24, 2015, when five hours
per week of specialized instruction—far less than the original IEP that had proven successful—
and a dedicated aid were added to his IEP, id. at 46 ¶¶ 212-213. The dedicated aid was
subsequently removed, however, after approximately one month, in May 2015, over the
plaintiff’s objection, and D.M. was essentially excluded from instruction by being placed with a
Spanish teacher when this teacher had no class, the janitor, or another non-teacher adult. Id. at
50-51 ¶¶ 236-241.
On the same date of the IEP modification, April 24, 2015, the plaintiff filed a Due
Process Complaint (“DPC”) under the IDEA, claiming that DCPS denied D.M. a Free
Appropriate Public Education (“FAPE”) due to several enumerated actions and inactions by
D.M.’s school and DCPS. Id. at 2. Following a two-day due process hearing, held on June 5 and
15, 2015, id. at 4, at which the plaintiff introduced 56 exhibits and presented the testimony of
three witnesses, the hearing officer concluded that, as a matter of law, DCPS failed to provide
D.M. with a FAPE as required by the IDEA, id. at 71 ¶ 50, and ordered, inter alia, that (1)
D.M.’s IEP be amended to provide that “[a]ll of the Student’s academic instruction [] be
specialized instruction provided in the outside of general education setting,” id. at 72 ¶ 1(a); (2)
D.M.’s “instruction [] be provided in a small classroom (i.e. not to exceed 12 students), with a
low ratio of students to adults,” id. at 73 ¶ 1(b); (3) D.M. be escorted “[a]t all times during the
school day [] in all non-classroom environments,” id. at 73 ¶ 1(c); (4) the plaintiff inform DCPS
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of “which one (1) of the” requested “Independent Educational Evaluations (“IEEs”) Petitioner
wishes to obtain” and then DCPS “shall issue to [Plaintiff] an IEE letter authorizing [Plaintiff] to
obtain the requested IEE,” id. at 73-74 ¶¶ 3-4; (5) the IEP Team “develop a [behavior
intervention plan (“BIP”)] for” D.M., id. at 74 ¶ 6; and (6) DCPS convene and revise D.M.’s IEP
as appropriate, id. at 74-75 ¶¶ 6-7. The 2015 HOD did not grant all the relief requested by the
plaintiff, such as placing D.M. at a private school or other appropriate full-time special education
program; requiring DCPS to fund multiple, rather than just one, IEEs for comprehensive
evaluations comprising psychological, speech/language, occupational therapy, assistive
technology and other testing; and requiring more prompt revisions to the IEP. Id. at 6-7.
Despite the 2015 HOD’s direction that all of D.M.’s academic instruction be specialized
instruction outside of a general education setting, see id. at 72 ¶ 1(a), according to the plaintiff,
the District “did not do this,” and instead, in July 2015, revised D.M.’s IEP to provide only 20,
not “all,” hours of specialized instruction “in a mainstream middle school,” Pl.’s Reply in Supp.
Mot. Atty’s Fees (“Pl.’s Reply”) at 6, ECF No. 54; see also Pl.’s Mot., Ex. 2 (Hearing Officer
Determination, issued April 29, 2017 (“2017 HOD”)) at 13, ECF No. 51-4 (noting “DCPS’
failure to provide in his IEP for all academic instruction to be provided outside the general
education setting contravened the requirements of the June 22, 2015 HOD”). According to the
plaintiff, D.M. “deteriorated so quickly from July 2015 through November 2015” that “in
November 2015 DCPS finally agreed to place [him] at … a full time special education school,”
Pl.’s Reply at 6, as the plaintiff had requested six months earlier at the 2015 due process hearing,
when that request had been denied. Unfortunately, D.M. was expelled from that special
education school in the spring of 2016, before the end of the school year, id. at 7.
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B. Federal Suit Seeking Review of 2015 Hearing Officer Determination
On September 16, 2015, before DCPS acceded to the plaintiff’s request to place D.M. in
a full-time special education school, the plaintiff initiated this case seeking review of the 2015
HOD. See generally Compl., ECF No. 1. The Magistrate Judge to whom the case was referred
issued a report, dated January 31, 2017, recommending that, in addition to the relief granted in
the 2015 HOD, DCPS be further ordered to “(1) fund an IEE of D.M. comprised of as many
assessments as necessary to evaluate D.M.’s suspected areas of disability and to determine an
appropriate educational program for him, as determined by the independent professional
conducting the IEE and consistent with the standards for evaluations prescribed by the IDEA and
its regulations; (2) conduct a new FBA [Functional Behavioral Assessment] of D.M.,” and (3)
“hold an IEP Team meeting to consider the results of the IEE and FBA within 30 days of their
completion.” 2017 R&R at 38. Less than one month later, this Court adopted, in full, the
recommendations made in the Magistrate Judge’s 2017 Report, to which neither party had
lodged any objection. See Order, dated Feb. 22, 2017 (“2017 Order”) at 2, ECF No. 31.
C. Implementation of 2017 Order and Second Administrative Action
During the pendency of the plaintiff’s civil suit, from September 16, 2015 to February 22,
2017, D.M.’s behavioral problems persisted with “significant disruptive behavior and non-
compliance,” 2017 HOD at 7 ¶ 6, leading to incidents that resulted in his arrest and a hospital
admission, id. at 8 ¶ 7. The plaintiff requested a therapeutic residential placement for D.M. in
May 2016, id. at 9 ¶ 10, but DCPS instead placed D.M. in a therapeutic day school, id. at 9 ¶ 11,
where D.M. was chronically truant, id. at 10 ¶ 14.
On February 17, 2017, shortly before issuance of the 2017 Order, plaintiff filed a second
due process complaint seeking “to secure DCPS funding for a residential educational placement”
for D.M. Id. at 14. After a due process hearing on the second due process complaint, held on
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April 13, 2017, id. at 2, the hearing officer denied, without prejudice, the plaintiff’s request for
DCPS to fund a residential placement for D.M. and ordered an independent psychological
assessment “specifically [to] assess Student’s need for a residential placement,” id. at 27. Due to
D.M.’s deterioration “socially, emotionally, academically, and behaviorally,” Pl.’s Resp. OTSC
at 2, however, the psychological assessment required under the 2017 HOD and the additional
IEEs and FBA’s required under the 2017 Order could not be conducted, id. at 3.
In the fall of 2017, a psychologist was able to gather sufficient information to “issue[] a
report recommending placement in a residential school,” Pl.’s Pts and Auth. Supp. Pl.’s Mot. for
Atty’s Fees and Costs (“Pl.’s Mem.”) at 2, ECF No. 51-2, a placement the plaintiff had requested
in May 2016, if not earlier, and reiterated in January 2017, see Pl.’s Reply at 7.3 In November
2017, DCPS agreed to a residential placement for D.M. See Jt. Status Rpt. (Jan. 9, 2018) at 1,
ECF No. 45. When D.M. became agitated and non-compliant at the proposed placement,
however, the plaintiff decided to homeschool him. Id. In April 2018, the parties scheduled an
IEP meeting, Jt. Status Rpt. (Apr. 10, 2018), ECF No. 48, and in June 2018, the parties advised
that D.M. had begun attending a private school in the Baltimore area, Jt. Status Rpt. (June 6,
2018), ECF No. 50.
Shortly thereafter, the plaintiff filed the pending motion for attorney’s fees and costs,
resolution of which would “obviate the need to continue to maintain this action.” Jt. Status Rpt.
(June 6, 2018). This is the plaintiff’s second motion for attorney’s fees and costs, after the
plaintiff’s first motion seeking reimbursement for fees and costs incurred in appealing the 2015
3
In 2015 the plaintiff requested a “Private School or another appropriate full time special education
program,” though the record is unclear whether the plaintiff contemplated that this request included possible
placement in a “therapeutic residential school,” as plaintiff later specifically requested, in 2016. See 2015 HOD at
6-7; 2017 HOD at 9 ¶ 10 (noting that plaintiff requested, in May 2016, “in light of Student’s daily struggles, refusal
to cooperate with the school program and oppositional conduct, that Student be placed in a therapeutic residential
school”).
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HOD in this Court, see Pl.’s Mot. For Attorney’s Fees and Costs (“Pl.’s First Fee Mot.”) at 1 n.1,
ECF No. 37, was settled by the parties, see Not. of Settlement, ECF No. 40. As noted, the
pending motion seeks fees and costs incurred for 30 months of work on the administrative action
underlying the 2015 HOD and subsequent implementation of the 2015 HOD and 2017 Order.
Pl.’s Mot., Ex. 3 (invoice for professional services charged from Nov. 13, 2014 to June 11, 2018
(“Pl.’s Invoice”)), ECF No. 51-5; Pl.’s First Fee Mot. at 1 n.1.
II. LEGAL STANDARD
When a party objects to a Magistrate Judge’s Report and Recommendation, the Court
conducts a de novo review. See FED. R. CIV. P. 54(d)(2)(D); Baylor v. Mitchell Rubenstein &
Assocs., P.C., 857 F.3d 939, 947 (D.C. Cir. 2017) (“[W]e join a number of our sister circuits in
requiring that motions for attorney’s fees be reviewed de novo if referred to a Magistrate Judge
and properly objected to.”). The IDEA provides that “the court, in its discretion may award
reasonable attorneys’ fees … to a prevailing party who is the parent of a child with a disability.”
20 U.S.C. § 1415(i)(3)(B)(i). Attorney’s fees under the IDEA are not limited to time spent in,
and preparing for, adversarial proceedings alone. “Rather, an attorney can recover for work
when there is ‘a clear showing that the time was expended in pursuit of a successful resolution of
the case in which fees are being claimed.’” Baylor v. Mitchell Rubenstein & Assocs., P.C., 735
F. App’x 733, 736 (D.C. Cir. 2018) (per curiam) (quoting Nat’l Ass’n of Concerned Veterans v.
Sec’y of Def., 675 F.2d 1319, 1335 (D.C. Cir. 1982)).
Although the “IDEA provides relatively little guidance to either the courts or litigants
regarding how, precisely, these ‘reasonable attorneys’ fees’ are to be calculated,” Reed v. District
of Columbia, 843 F.3d 517, 520 (D.C. Cir. 2016), the statute requires that such fees must be
“based on rates prevailing in the community in which the action or proceeding arose for the kind
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and quality of services furnished,” 20 U.S.C. § 1415(i)(3)(C), and disallows any “bonus or
multiplier,” id. In addition, the statute authorizes “courts to reduce awards of attorneys’ fees if
they ‘unreasonably exceed[] the hourly rate prevailing in the community for similar services by
attorneys of reasonably comparable skill, reputation, and experience.’” Reed, 843 F.3d at 520
(quoting 20 U.S.C. § 1415(i)(3)(F)(ii)).
In applying a statutory fee-shifting provision allowing recovery of “a reasonable
attorney’s fee as part of the costs,” the “guiding light” is “the lodestar method [which] produces
an award that roughly approximates the fee that the prevailing attorney would have received if he
or she had been representing a paying client who was billed by the hour in a comparable case.”
Perdue v. Kenny A., 559 U.S. 542, 550-51 (2010) (emphasis in original). The lodestar approach
applies in IDEA cases using a “two-part framework that takes into account: (1) the ‘number of
hours reasonably expended in litigation’; and (2) the ‘reasonable hourly rate’ for the services
provided.” Reed, 843 F.3d at 520 (quoting Eley v. District of Columbia, 793 F.3d 97, 100 (D.C.
Cir. 2015)). To meet the first part of this framework, “fee applicants must document the hours
spent litigating in IDEA proceedings in which they prevailed.” Id.
For the second part of the framework, the D.C. Circuit instructs that the appropriate
“reasonable hourly rate” may be determined upon consideration of three sub-elements: “(1) ‘the
attorney[’s] billing practices,’ (2) ‘the attorney[’s] skills, experience, and reputation’ and (3) ‘the
prevailing market rates in the relevant community.’” Id. (alterations in original) ((quoting Eley,
793 F.3d at 100) (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir.
1995))). The third sub-element regarding the prevailing market rate may be addressed by fee
applicants in IDEA cases by relying “on two separate, but inter-related, approaches,” id. at 521:
(1) “attempting to demonstrate that IDEA cases fall within the bounds of th[e] type of litigation”
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that use the so-called “Laffey Matrix,” which the D.C. Circuit has characterized as “apply[ing]
only to ‘complex federal litigation,’” id.; and (2) “providing evidence of the fees charged, and
received, by IDEA litigators,” id.
When seeking reasonable attorney’s fees, “the ‘fee applicant bears the burden of
establishing entitlement to an award, documenting the appropriate hours, and justifying the
reasonableness of the rates.’” Eley, 793 F.3d at 100 (quoting Covington, 57 F.3d at 1107). Once
an applicant meets this initial burden, a presumption applies that the number of hours billed and
the hourly rates are reasonable. Covington, 57 F.3d at 1109 (citing Blum v. Stenson, 465 U.S.
894, 897 (1984)). At that point, the burden shifts to the opposing party to “provide specific
contrary evidence tending to show that a lower rate would be appropriate.” Covington, 57 F.3d
at 1109-10 (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d at 1326).
III. DISCUSSION
The District does not dispute that the plaintiff is “a prevailing party who is the parent of a
child with a disability,” 20 U.S.C. § 1415(i)(3)(B)(i), and, as such, is generally entitled to
reimbursement of reasonable attorney’s fees and costs under the IDEA, see generally Def.’s
Opp’n. Nor does the District dispute any of the charges submitted by the plaintiff’s counsel, or
her billing practices. See Pl.’s Reply at 5 (“Defendant does not challenge any specific line items
on Plaintiff’s invoice for attorney fees and costs such as entries that required an unreasonable
amount of time, entries for unreasonable/unrelated activities, or for any other reason.”). Instead,
the District contests the use of the current USAO Matrix as the measure of the prevailing market
rate for IDEA cases, contending that a reasonable rate is “75% of the USAO Attorney’s fees
matrix rate.” Def.’s Opp’n at 1. Further, the District argues that any fee award to plaintiff
should be reduced by some additional, unspecified amount due to the plaintiff achieving only
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“partial success” in the 2015 HOD, or even up to denial of any additional fees for allegedly
protracting the litigation after the District made a settlement offer. Def.’s Opp’n at 18-20. Each
of these arguments is addressed below.
A. The Current USAO Matrix Provides the Reasonable Hourly Rate
As noted, supra in Part II, when considering the reasonableness of an attorney’s proposed
hourly rate for reimbursement for work invoiced in an IDEA case, the D.C. Circuit has instructed
examination of “(1) ‘the attorney[’s] billing practices,’ (2) ‘the attorney[’s] skill, experience, and
reputation’ and (3) ‘the prevailing market rates in the relevant community.’” Eley, 793 F.3d at
100 (alterations in original) (quoting Covington, 57 F.3d at 1107); Reed, 843 F.3d at 521 (citing
three sub-elements). Application of this three-part test has proven challenging and contributed to
extensive litigation in IDEA cases over reimbursement since parents or other guardians, who are
seeking to vindicate the civil rights under this law of their children with learning difficulties, are
often unable to afford to pay private counsel’s billing rates, no matter what that billing rate is or
the attorney’s level of skills and experience or reputation. This important context has made the
task in IDEA cases of “determining an appropriate market rate for the services of a lawyer,”
Blum, 465 U.S. at 895 n.11, which is already “inherently difficult,” id., even more so.
1. First and Second Sub-elements: Attorney’s Billing Practices and Experience
The first sub-element for establishing a reasonable hourly rate requires the applicant to
show the rates her attorney “customarily charges clients.” Covington, 57 F.3d at 1103. See also
Lee v. District of Columbia, 298 F. Supp. 3d 4, 11 (D.D.C. 2018) (noting this “factor requires the
applicant to show her attorney’s ‘custom’ with respect to billing in IDEA cases”). Plaintiff’s
counsel states in her affidavit that it is her “normal practice to bill clients who are not indigent at
rates equivalent to the current Laffey Matrix rates.” Pl.’s Mot., Ex. 4 (Decl. of Elizabeth T.
Jester, dated June 11, 2018 (“Pl.’s Counsel’s Decl.”)) ¶ 20, ECF No. 51-6. The D.C. Circuit has
11
opined that “an attorney’s usual billing rate is presumptively the reasonable rate, provided that
this rate is ‘in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.’” Kattan by Thomas v. District of
Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum, 465 U.S. at 895 n.11); see also
Baylor, 735 F. App'x at 735 (noting that “the District Court appropriately relied on this Court’s
holding that an attorney’s usual billing rate is presumptively the reasonable rate”) (internal
quotations and citations omitted). As discussed in more detail, infra in Part III.A.2, the
plaintiff’s attorney has bolstered her own affidavit about her personal billing practices and rates
as being consistent with the rates set out in the current USAO Matrix, with affidavits from other
attorneys and additional evidence showing that her billing rates are in line with prevailing rates.
Thus, this first sub-element favors using the USAO Matrix as the prevailing market rate.
To meet the second sub-element, the plaintiff’s affidavit describes her significant skill
and experience both in litigating to protect children’s rights generally and their rights under the
IDEA, in particular. When she first entered private practice over thirty years ago, plaintiff’s
counsel represented children and their families in litigation over lead paint poisoning and the
concomitant disabilities caused by such poisoning. Pl.’s Counsel’s Decl. ¶ 4. She has been the
“featured speaker at several national lead poisoning conferences” and has spoken on the issue at
the D.C. Bar Annual Convention. Id. As for her credentials in special education law, plaintiff’s
counsel has served, since its inception, on the D.C. Superior Court Family Division panel of
attorneys approved to accept Special Education Attorney appointments, has been an instructor
for Continuing Legal Education (CLE) courses sponsored by D.C. Superior Court and the Public
Defender Service, as well as for other training programs sponsored by the Bar Association of the
District of Columbia’s Annual Neglect and Delinquency Practice Institute and the D.C. Public
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Defender Service. Id. ¶ 5. She has “represented hundreds of District of Columbia families in
ascertaining the educational needs of their children with disabilities and procuring appropriate
placements,” id. ¶ 6, and has “participated in hundreds of administrative due process hearings
pursuant to IDEA and procured countless settlement agreements in IDEA cases in the District of
Columbia,” id. Finally, “[n]umerous judges of the D.C. Superior Court” have appointed her “in
neglect and juvenile cases to represent parents/foster parents/surrogate parents/guardians
concerning the educational needs of the children in their care who are wards of the District of
Columbia.” Id. In sum, the plaintiff has demonstrated her skills and experience over the course
of a long career dedicated to serving the needs of children.
Therefore, as to the first two sub-elements, the plaintiff has shown her entitlement to fees
reimbursed at the requested rate provided in the current USAO Matrix. Notably, the District
raises no challenge as to plaintiff’s counsel’s representations regarding, or satisfaction of, either
of the first two sub-elements in establishing a reasonable hourly rate. See generally Def.’s
Opp’n.
2. Third Sub-Element: Prevailing Market Rates in The Relevant Community
The thrust of the District’s challenge to the plaintiff’s requested fee award is to the third
sub-element in establishing a reasonable hourly rate, namely: consideration of the prevailing
market rate in the District of Columbia metropolitan area. As support for her position that the
current USAO Matrix sets the prevailing market rate applicable here, the plaintiff provides her
own counsel’s affidavit that these are the rates she charges non-indigent clients, Pl.’s Counsel’s
Decl. ¶¶ 11, 20, plus affidavits from five attorneys practicing special education law in the
District of Columbia, see Pl.’s Mem. Exs. 8-12 (Declarations of Carolyn Houck, Douglas Tyrka,
Nicholas Ostrem, Stevie Nabors, and Alana Hecht, respectively), ECF Nos. 51-10, 51-11, 51-12,
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51-13, 51-14. Those five attorneys attest that they charge hourly rates to paying clients
commensurate with, or in excess of, the rates provided in the current USAO Matrix. See, e.g.,
Houck Decl. ¶ 3, 9 (“The hourly rates I charge my clients [are in line] with the rates set forth in
United States Attorneys Office (USAO) attorney’s fees matrix” and “[t]he community of
attorneys with paying special education clients in the District of Columbia predominately charge
their clients at or near the current attorney’s fees matrix rates published by the USAO.”); Tyrka
Decl. ¶ 3-4 (“From its inception in 2005 Tyrka & Associates has always exclusively charged at
hourly rates matching those in what is commonly known as “the LSI Laffey Matrix,” … [t]hough
Tyrka & Associates historically primarily represented clients who could not afford
representation, the firm has had several clients pay the firm at the LSI Laffey Matrix rates
directly, regardless of whether reimbursement is ever obtained.”);4 Ostrem Decl. ¶ 3 (“The
Ostrem Firm has always matched its hourly rates to those in what is commonly known as the
‘Laffey matrix’….”); Nabors Decl. ¶ 5-8 (“After the United States Attorney’s Office issued its
‘USAO Attorneys’ Fees Matrix’ in late 2015, we orally surveyed our colleagues and peers who
practiced IDEA litigation and determined that the USAO Attorneys’ Fees Matrix represented the
prevailing rate in the community,” and is the rate at which “the firm has been paid.”); Hecht
Decl. ¶ 12 (“D.C. Disability Law Group, P.C. currently matches its hourly rates to those in what
is known as the USAO adjusted Laffey matrix and has had several paying clients that have paid
these rates.”).
Plaintiff also submitted independent surveys of rates charged by attorneys in the District
of Columbia. See Pl.’s Mem., Exs. 6-7 (survey data compiled by the National Law Journal in
4
The LSI Laffey Matrix provides hourly rates that exceed those set out in the current USAO Matrix, and is
derived by adjusting for inflation the original Laffey Matrix using the Legal Services Index of the nationwide
Consumer Price Index. See Flood v. District of Columbia, 172 F. Supp. 3d 197, 202 n.1 (D.D.C. 2016); Salazar v.
District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015).
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2013 and 2015, respectively, and published by ALM Intelligence), ECF Nos. 51-8, 51-9. This
survey data, even more recent that the 2011 survey data relied upon in the USAO Matrix, shows
that in 2015 the national median rate for a partner at a law firm with 25 or fewer lawyers was
$350/hour, compared to the much higher median rate in the District of Columbia (for all law
firms) at $1,035/hour.5 In other words, as the plaintiff observes, “[t]he rates reflected in these
surveys for attorneys in the D.C. area are above the USAO Matrix rates requested by Plaintiff’s
attorney.” Pl.’s Mem. at 7.
Finally, the plaintiff requests that judicial notice be taken of nine affidavits from
attorneys litigating IDEA cases that were relied upon in Wimbish v. District of Columbia, 251 F.
Supp. 3d 187, 192 (D.D.C. 2017), four of which affidavits are from the same attorneys
submitting affidavits in this case (i.e., plaintiff’s counsel Elizabeth Jester, Douglas Tyrka,
Nicholas Ostrem, and Alana Hecht). Pl.’s Mem. at 8. Such evidence from other attorneys
regarding the fee rates used in the same specialty area in the same locale has been expressly
endorsed as relevant in determining the prevailing market rate. See Eley, 793 F.3d at 101 (citing
Covington, 57 F.3d at 1109). Several of the additional attorney affidavits submitted in Wimbish
attested to the fact that IDEA litigators in this area generally charge rates in conformity with the
current USAO Matrix and that this matrix reflects the prevailing rate. See, e.g., Decl. of
Domiento C.R. Hill (“Hill Decl.”) ¶ 14, Wimbish, 15-cv-1429 (ESM), ECF No. 17-15 (declaring
that 75% of the USAO rate is “unreasonably low and below market rates”); Decl. of Diana Savit
(“Savit Decl.”) ¶ 14, id., ECF No. 17-12 (stating that she would not “take [a non-paying IDEA]
case unless it was extremely strong on the merits and [she] could reasonably expect to be
5
Ideally, a comparison could be made between the median rate for partners at law firms with 25 or fewer
lawyers nationally with the median rate for partners at similarly sized law firms in the District of Columbia, but the
National Law Journal survey data submitted by the plaintiff only provides the median rate in the District of
Columbia for all firms.
15
awarded an hourly rate of at least $500, far above the ‘75% of USAO Laffey’ rate many judges
would award me”); Decl. of Emily B. Read, id., ECF No. 17-9 (stating that all of plaintiff’s
attorneys, including Ms. Read, received “the United States Attorney’s Office (USAO) Laffey
Matrix” rate in Blackman v. District of Columbia, 56 F. Supp. 3d 19 (D.D.C. 2014), for
successfully obtaining injunctive relief and implementing hearing officer determinations).
Confronted with the evidence provided by the IDEA attorneys, the Wimbish Court
determined that the affidavits on which the instant plaintiff also seeks to rely “support a finding
that full USAO Laffey rates are the prevailing rates in the community for IDEA litigation,”
Wimbish, 251 F. Supp. 3d at 192, and ultimately awarded attorney’s fees at the USAO Matrix
rate, see id. As in Wimbish, these affidavits support a finding that the USAO rate is the
prevailing rate.
In addition to this evidence of what attorneys in this metropolitan region are charging
clients for IDEA-related work, the USAO Matrix has been described as “‘a useful starting point’
in calculating the prevailing market rate.” Eley, 793 F.3d at 100 (quoting Covington, 57 F.3d at
1109). Thus, having begun this analysis of the prevailing market rate with evidence of what
attorneys charge paying clients, the discussion continues by reviewing the particular relevance of
the current USAO Matrix, followed by review of other considerations, including the rate
necessary to attract competent counsel to assist plaintiffs with meritorious IDEA claims.
a. Current USAO Matrix Is Not Limited to “Complex Federal Litigation”
The Civil Division of the USAO prepares and regularly updates its Attorney’s Fees
Matrix “for use in cases in which a fee-shifting statute permits the prevailing party to recover.”
USAO Matrix, Explanatory Note 1 (citing as examples of such statutes, Title VII of the 1964
Civil Rights Act, 42 U.S.C. § 2000e-5(k); Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E);
and Equal Access to Justice Act, 28 U.S.C. § 2412(b)), available at
16
https://www.justice.gov/usao-dc/file/796471/download.6 This USAO Matrix is often referred to
as the “Laffey Matrix,” but this is now a misnomer. In fact, both parties recognize the difference
between the Laffey Matrix and the current USAO Matrix. See Pl.’s Mem. at 14 (referring to the
Laffey Matrix as the “predecessor to the USAO Matrix”); id. at 7 n.2 (“Prior to 2015, the U.S.
Attorney’s Office formulated what was referred to [as] The USAO Laffey Matrix.”). The District
expressly acknowledges that “[t]he USAO Matrix, which was developed for use after June 1,
2015, is based on different data and utilizes a different inflation index than that used in the Laffey
Matrix.” Def.’s Opp’n at 11.
The Laffey Matrix was “originally compiled to reflect the prevailing market rate for
‘complex federal litigation,’” Reed, 843 F.3d at 519 (citing Laffey v. Nw. Airlines, Inc. (Laffey I),
572 F. Supp. 354, 372 (D.D.C. 1983), aff'd in part, rev'd in part on other grounds, Laffey v. Nw.
Airlines, Inc. (Laffey II), 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, Save
Our Cumberland Mountains, Inc. v. Hodel (SOCM), 857 F.2d 1516, 1517 (D.C. Cir. 1988) (en
banc)), and was based on twenty-five affidavits submitted to show the hourly rates charged in
1981-82 by attorneys in complex federal employment litigation, see Laffey I, 572 F. Supp. at
371. By contrast, the USAO does not suggest that use of its current fee matrix is limited to
“complex federal litigation”—however that may be defined—and, indeed, the methodology used
to prepare the matrix is entirely divorced from the original Laffey case rates. See USAO Matrix,
Explanatory Note 4 (highlighting that current methodology “replaces that used prior to 2015,
which started with the matrix of hourly rates developed in Laffey”).
6
The USAO further explains that the “matrix has not been adopted by the Department of Justice generally
for use outside the District of Columbia, or by other Department of Justice components, or in other kinds of cases,”
meaning cases without an applicable fee-shifting statute, or where “the hourly rate is limited by statute.” USAO
Matrix, Explanatory Note 1.
17
Instead of relying on hourly rates developed over thirty-five years ago in the Laffey case,
the USAO now uses an entirely different methodology and derives the hourly rates for attorneys
in this area based on “average hourly rates reported in 2011 survey data for the D.C.
Metropolitan area, which rates were adjusted for inflation with the Producer Price Index-Office
of Lawyers (PPI-OL) index.” Id. at Explanatory Note 2. The “survey data comes from ALM
Legal Intelligence’s 2010 & 2011 Survey of Law Firm Economics.” Id. This ALM Legal Survey
data, in turn, is not limited to fees charged by lawyers litigating in federal courts but
encompasses a far broader scope of fees charged by lawyers practicing in different sizes of
offices, across different types of specialties, in both litigation and non-litigation types of matters.
See Makray v. Perez, 159 F. Supp. 3d 25, 51 (D.D.C. 2016) (describing 2011 ALM Legal
Intelligence survey in declaration of expert economist, Dr. Laura A. Malowene, provided by U.S.
Department of Labor, as “provid[ing] data of actual billing rates of attorneys in the Washington,
DC area, from law offices of all sizes and types”). The USAO has adopted this methodology
because use of this survey data is “[c]onsistent with” the Supreme Court’s definition of a
“reasonable fee” awarded pursuant to a fee-shifting statute as “a fee that is sufficient to attract an
adequate supply of capable counsel for meritorious cases.” USAO Matrix, Explanatory Note 2.
In short, the USAO Matrix from June 1, 2015 and onward no longer bears any
methodological connection to Laffey the case or Laffey the fee matrix, or to the illusive concept
of “complex federal litigation.”7 The current version of the USAO Matrix is in fact designed to
7
A minor portion of the plaintiff’s requested fees were incurred before June 1, 2015, and were therefore
charged pursuant to the USAO Laffey Matrix for 2014-2015, which was $520 per hour. See Pl.’s Invoice at 1-5;
Pl.’s Counsel’s Decl. at 5. The USAO Laffey Matrix had only five strata for attorney experience, with the highest
stratum being 20+ years of experience. By contrast, the USAO Attorney’s Fees Matrix has nine strata, with the
highest stratum being 31+ years of experience. Plaintiff’s counsel had 31+ years of legal experience by 2014, see
Pl.’s Counsel’s Decl. at 1, such that her hourly rate of $520 for that period, billed under the USAO Laffey Matrix for
attorneys with 20+ years of experience, falls below the rate of $568 per hour for attorneys with 31+ years of
experience in 2015-2016 under the current USAO Matrix. In short, as compared to the current USAO Matrix, the
18
be representative of the prevailing hourly rates for a broad range of legal work in this area, not
just for “complex federal litigation.” To the extent that the attorney hourly rates provided in the
Laffey Matrix have been deemed inapplicable to IDEA cases, because IDEA cases fall short of
qualifying as “complex federal litigation,” see, e.g., Reed, 843 F.3d at 525 (observing that being
“able to demonstrate that IDEA cases are ‘complex federal litigation’ to which the Laffey Matrix
presumptively applies []will not be easy”); Price v. District of Columbia, 792 F.3d 112, 117
(D.C. Cir. 2015) (Brown, J., concurring) (finding that “Laffey Matrix rates are irrelevant to the
prevailing-rate determination” for “IDEA administrative due process hearings” since such cases
do not command the same rates as complex federal litigation), the new methodology employed
by the USAO Matrix now renders that analysis inapposite.8 The District simply fails to address
the fact that unlike the original Laffey Matrix, the USAO Matrix is untethered to complex federal
litigation and based on data “from law offices of all sizes and types,” other than solo
practitioners, involved in all types of legal work—not just federal litigators in complex litigation.
Despite the USAO’s updated data and methodology, the District argues that,
“[n]evertheless, both the Laffey Matrix and the USAO Matrix were intended to be applied in
complex federal litigation in the District,” Def.’s Opp’n at 11 (emphasis in original), by which
the District seems to mean that both matrices were intended to apply only to complex federal
litigation. The District supports this claim by citing the United States’ Statement of Interest
USAO Laffey Matrix set a lower hourly rate for attorneys with many years of experience, meaning plaintiff’s request
for that lesser amount is also reasonable.
8
The plaintiff argues, as an alternative justification for her proposed hourly rate, that either IDEA cases in
general, or this IDEA case, in particular, is equivalent to “complex federal litigation” and therefore “presumptively”
deserving of Laffey or USAO Matrix rates. Pl.’s Mem. at 10-13; Pl.’s Reply at 3-4. Plaintiff’s argument arises, of
course, from the case law suggesting “two separate” ways of establishing an attorney’s rate with evidence of either
(1) the prevailing market rate for the attorney’s services, or (2) the attorney’s work being akin to “complex federal
litigation,” Eley, 793 F.3d at 100. Further consideration of this argument is unnecessary because the plaintiff has
satisfied the “prevailing market rate” rubric and the current USAO Matrix is no longer tethered to the original Laffey
matrix or “complex federal litigation.”
19
submitted in D.L. v. District of Columbia, 05-cv-1437 (RCL), see Def.’s Opp’n at 11, but that
Statement of Interest does not support the District’s claim, see Def.’s Opp’n, Ex. 3, Statement of
Interest of the United States (“US-SOI”), ECF No. 53-3. Instead, the United States’ Statement of
Interest addressed the more limited question “whether a district court charged with awarding
‘reasonable’ attorneys’ fees under a federal fee-shifting statute abused its discretion when it
based its award on the hourly rates set forth in a particular ‘matrix’ maintained by the” USAO.
Id. at 1. Although the parties in D.L. agreed that the case qualified as complex federal litigation,
that characterization of the case was beside the point for the United States, which took “no
position” on that issue. See Brief for the United States as Amicus Curiae Supporting Appellees
at 6, D.L. v. District of Columbia, No. 18-7004 (D.C. Cir. filed Jul. 20, 2018). Instead, the
United States merely defended the merits of the USAO Matrix as “superior to the LSI Laffey
Matrix,” id. at 2, which the D.L. plaintiffs’ sought to use for reimbursement.
In other words, the issue addressed by the United States’ Statement of Interest in D.L.
was not whether, or to what extent, the current USAO Matrix appropriately applies to cases that
qualify, or not, as “complex federal litigation,” but rather, which of two matrices should be used
in a case involving a statutory fee-shifting statute requiring determination of a “reasonable
hourly rate” for the Washington, D.C. Metropolitan region. In this regard, the United States
emphasized “[a] request for attorney’s fees should not result in a second major litigation,” id. at 6
(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)), and “a reliable and agreed-upon rate
matrix is critical to achieving that goal,” id. at 7; see also id. (“affirming the district court’s
adoption of the USAO Matrix would go a long way toward eliminating the need for parties to
engage in extensive litigation over rate issues in the future, thereby rendering fee litigation more
efficient for courts, parties, and lawyers”) (quotations omitted). Notably, in D.L., on appeal, the
20
USAO Matrix was criticized as “not sufficiently tailored to complex federal litigation conducted
in D.C.,” id. at 13, because the underlying data “reflect[ed] hourly rates for all legal services
offered by law firms in a four-state area, not rates for complex federal litigation in D.C. alone,”
id. (quotations omitted). The government explained that, “even if rates for complex federal
litigation are in the top 10% of litigation rates,” id. at 15, “the rates in the USAO Matrix are
sufficiently high” to serve as a “reasonable proxy,” id. In sum, without limiting application of
the USAO Matrix to only “complex federal litigation,” the government stressed that the “USAO
Matrix is far superior to the LSI Matrix because it is based on substantially more recent, reliable,
and precise data concerning the ‘prevailing’ market rates in the relevant community, [and] are
therefore ‘reasonable’ and ‘adequate to attract competent counsel, [without] produc[ing] [a]
windfall[] to attorneys.’” Id. at 24 (alterations, other than first alteration, in original; citations
omitted).
That the current USAO Matrix is not tethered to use in complex federal litigation is good
news since, as the D.C. Circuit has astutely noted, “Laffey is not very helpful in explicating
‘complex federal litigation,’” Reed, 843 F.3d at 525, and “[u]nfortunately, the case law provides
little guidance to litigants attempting to demonstrate that IDEA cases constitute ‘complex federal
litigation,’” id. at 526. Engaging in the costly, time-consuming and ultimately unhelpful practice
of drawing ill-fitting, subjective comparisons between IDEA litigation work and federal
litigation work in another specialized area to qualify for Laffey Matrix rates can now be
jettisoned with use of the current USAO Matrix, which, again, is derived using recent 2011
survey data reflecting a mix of legal services collectively offered by “law offices of all sizes and
types” in this metropolitan area.
b. USAO Matrix Applies to IDEA Administrative Proceedings
21
Having already reached a settlement regarding her fees for the federal litigation portion
of this IDEA case, the plaintiff now seeks reimbursement for her success in the administrative
proceeding and the time expended in implementing the administrative order and the order of this
Court. The District contends that the administrative nature of the proceeding for which the
plaintiff seeks reimbursement warrants a discount from the USAO Matrix rate. See Def.’s Opp’n
Pl.’s Obj. Mem. at 4-5, ECF No. 60 (“‘[A] rate equivalent to 75 percent of Laffey rates
approximates the prevailing market rate for IDEA administrative proceedings….’” (quoting Reed
v. District of Columbia, 134 F. Supp. 3d 122, 131 (D.D.C. 2015))). This Court disagrees with
the District’s reasoning that a lower hourly rate automatically should apply to IDEA
administrative proceedings, particularly one, as here, that involved a pre-hearing conference, a
two-day hearing, over eighty exhibits by both parties, thirteen “disclosed” witnesses who were
listed to testify, and four of whom actually testified, including the plaintiff. Pl.’s Mem at 10-11;
2015 HOD at 3.
Retiring comparisons to “complex federal litigation,” with its myopic discounting of the
administrative portion of IDEA cases, will bring IDEA attorney’s fees cases back in line with the
statutory text of the IDEA. Ultimately, no statutory basis supports a distinction, when
calculating IDEA attorney’s fees, between prevailing in an administrative proceeding or in a
federal court. Over thirty years ago, the District argued that plaintiffs, who were successful on
the administrative level, were not entitled to recover any attorneys’ fees under the virtually
identical language of IDEA’s predecessor statute. See Moore v. District of Columbia, 907 F.2d
165, 167 (D.C. Cir. 1990) (en banc). The D.C. Circuit flatly rejected that argument. Id. The
relevant statutory text, then, as now, reads: “[i]n any action or proceeding brought under this
section, the court, in its discretion, may award reasonable attorneys’ fees ….” 20 U.S.C. §
22
1415(i)(3)(B)(i) (emphasis added). The D.C. Circuit held that Congress intended this broad
language to encompass administrative proceedings and civil actions alike, since the Court was
“at a loss to give meaning to the distinction between ‘action’ and ‘proceeding’ short of inferring
that Congress meant to authorize fees for parents who prevail either in a civil action or in an
administrative proceeding under [the IDEA.]” Moore, 907 F.2d at 167 (emphasis in original).
In authorizing fee awards for parties who prevail in administrative actions alone, see id.,
the IDEA makes no distinction between a reasonable rate for fees in administrative proceedings
and court proceedings, see 20 U.S.C. § 1415(i)(3)(B)(i). Indeed, the district court in Moore, in
granting the plaintiffs’ counsels’ hourly rates, made no distinction between the hourly rate to be
awarded for the attorneys’ work in the administrative proceeding and the hourly rate to be
awarded for all other aspects of the case, such as the award for fees-on-fees litigation. See
generally Moore v. District of Columbia, 674 F. Supp. 901 (D.D.C. 1987); see also Robinson v.
District of Columbia, 61 F. Supp. 3d 54, 64 (D.D.C. 2014) (rejecting the District’s argument that
legal work in administrative proceedings should be compensated at a lower rate than in federal
court and observing that “such a position would be enormously short-sighted and provide a
perverse incentive for attorneys to fail—and fail quickly—before administrative tribunals in
order to initiate federal court proceedings for which the attorney would be entitled attorneys' fees
at a full, regular and reasonable rate”).
Congress has demonstrated that it knows exactly how to make a distinction between
attorney’s fees awards in different types of proceedings, when such a distinction is intended. For
example, in the Social Security context, Congress limits the amount of attorneys’ fees available
when a litigant is successful in an administrative proceeding before the Social Security
Commissioner, see 42 U.S.C. § 406(a)(2)(A) (setting cap for recovering fee in administrative
23
proceeding at no more than $4,000), as compared to when the litigation continues in District
Court, see id. § 406(b) (setting cap for recovering fees at “25 percent of the total of the past-due
benefits to which the claimant is entitled by reason of such judgment”). As this Court previously
noted in Robinson, 61 F. Supp. 3d at 64, no such distinction is drawn in the IDEA.
The fact that Congress explicitly intended the attorneys’ fees provision in the IDEA to
cover both administrative and civil actions, and that Congress declined to mandate a lower fee
for administrative actions, as it has done in other contexts, is a strong statutory refutation of the
idea that an attorney’s work in an IDEA administrative proceeding is deserving of lower
compensation than an attorney’s work in an IDEA court proceeding.
c. Hourly Rates at Which IDEA Attorneys Are Actually Paid Is Irrelevant Given
Nature of IDEA “Submarket”
Notwithstanding that the USAO Matrix provides the prevailing hourly rates for a broad
swath of lawyers in this metropolitan area, and that plaintiff’s counsel and other lawyers, whose
affidavits have been submitted and referenced, actually charge fees at or above those rates to
paying clients, the District discounts this evidence as insufficient in “showing that the attorneys
actually received the rates charged, except, of course on the comparatively rare occasion when
the District Court awards these unreasonable rates.” Def.’s Opp’n at 8 (emphasis in original).
The District’s focus on what attorneys are paid for their IDEA work, rather than what they
charge to paying clients, simply highlights the sad lack of a marketplace for lawyers engaging in
IDEA litigation. See Merrick v. D.C., 134 F. Supp. 3d 328, 340 n.7 (D.D.C. 2015) (“[G]iven the
existence of the fee-shifting statute in [IDEA cases] and the relative rarity of paying special
education clients, one can hardly say that a ‘market’ exists for services similar to the services
offered in this [IDEA] case.”).
24
Indeed, plaintiff’s counsel fully acknowledges that “[w]ith very limited exceptions, my
clients are indigent or unable to afford payment of attorney fees and costs.” Pl.’s Counsel’s
Decl. ¶ 20; see also Pl.’s Obj. Mem. at 5 (“As indicated in the attached affidavits, of the small
subset of attorneys who do seek attorney’s fees in successful IDEA litigation, most of the cases
they handle are those of indigent clients who are not in a position to pay even token fees up
front.”). Rather than an effective attack on use of the USAO Matrix in IDEA cases, as the
District intended, this challenge simply highlights whether awarding attorney’s fees at rates
lower than the USAO Matrix, as the District urges, achieves the goal of the fee-shifting provision
to attract an adequate supply of capable counsel for meritorious cases. See, e.g., Covington, 57
F.3d at 1112 (“‘Congress after all did not simply express its intent that the fees would attract
counsel, but rather that they would be adequate to attract competent counsel.’” (quoting SOCM,
857 F.2d at 1521); accord Perdue, 559 U.S. at 552 (describing attraction of competent counsel as
purpose of fee-shifting in 42 U.S.C. § 1988). In keeping with the purpose of fee-shifting statutes
to enable meritorious cases to be brought, the plaintiff points out that IDEA “cases are
undertaken with the knowledge that if the client does not prevail … there will be no fees.” Pl.’s
Obj. Mem. at 5-6. Thus, IDEA practitioners must scrutinize the merits of the cases they bring
since they work on a contingency-fee basis only to receive, if successful, the rates that their peers
performing work for paying clients receive regardless of success.9
The District’s criticism of the plaintiff’s reliance on the USAO Matrix when IDEA
plaintiffs generally cannot pay those rates is misplaced. Simply because IDEA clients may be
9
Moreover, the IDEA excludes from attorney’s fees awards time spent in many IEP Team meetings, see 20
§ 1415(i)(3)(D)(ii) (“Attorneys’ fees may not be awarded relating to any meeting of the IEP Team unless such
meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State,
for a mediation described in subsection (e).”), and the D.C. Circuit excludes expert witness fees from IDEA cost
awards, see Goldring v. District of Columbia, 416 F.3d 70, 71 (D.C. Cir. 2005).
25
indigent and unable to afford payment, does not mean that their attorney’s rate, awarded pursuant
to a fee-shifting statute, should be reduced. To the contrary, clients’ systematic inability to pay
is expected in the context of many fee-shifting statutes, including civil rights statutes, such as the
IDEA. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 725
(1987) (plurality opinion) (“We agree that a fundamental aim of such statutes is to make it
possible for those who cannot pay a lawyer for his time and effort to obtain competent counsel,
this by providing lawyers with reasonable fees to be paid by the losing defendants.”); see also
City of Burlington v. Dague, 505 U.S. 557, 574 (1992) (Blackmun, J., dissenting) (“[A case] in
which potential plaintiffs can neither afford to hire attorneys on a straight hourly basis nor offer a
percentage of a substantial damages recovery-is exactly the kind of case for which the fee-
shifting statutes were designed.”); Frances Kahn Zemans, Fee Shifting and the Implementation of
Public Policy, 47 Law & Contemp. Probs. 187, 205-06 (1984) (“Many of the fee award statutes
are clearly intended to tip the litigation balance to compensate somewhat for the inordinately
unequal economic status of disputants.”).
As result, the Court plays a significant de facto role in establishing the customary,
“prevailing” rate for IDEA cases. In this regard, use of the USAO Matrix has garnered support
in this Circuit as a reasonable approximation of prevailing hourly rate for IDEA litigation. See
Reed, 843 F.3d at 528-29 (Tatel, J., concurring) (“Based on my own experiences and hearing
dozens of these cases and authoring opinions in many, I think it quite obvious that IDEA
litigation is as complex as Title VII litigation” and is “sufficiently complex to warrant Laffey
rates.”); Eley, 793 F.3d at 105 (Kavanaugh, J., concurring) (“[I]n my view, the United States
Attorney’s Office Laffey matrix is appropriate for IDEA cases.”).10
10
Other Judges on this Court have also awarded full USAO Matrix rates in IDEA cases. See, e.g., Gaston v.
District of Columbia, 2015 WL 5332111, at *1 (D.D.C. Sept. 10, 2015) (Chutkan, J.); Copeland v. District of
26
d. The USAO Rate Would Attract a Sufficient Number of Competent Counsel
A reasonable fee is “one that is adequate to attract competent counsel, but that does not
produce windfalls to attorneys.” Blum, 465 U.S. at 897. The D.C. Circuit has not addressed
whether 75% of the USAO Matrix rate is sufficient to accomplish this goal in IDEA cases,
though Judge Tatel has separately written that “[d]eeming IDEA litigation eligible for Laffey
rates would comport with the Supreme Court’s instruction that a reasonable fee is one ‘adequate
to attract competent counsel,’” Reed, 843 F.3d at 529 (Tatel, J., concurring) (quoting Blum, 465
U.S. at 893). In Reed, the plaintiff-appellants raised the argument on appeal that the rates
awarded by the District Court in that case (75% of the USAO Matrix) were “insufficient to
attract competent counsel to take on these kinds of cases and, as such, are impermissibly low,”
Reed, 843 F.3d at 524, but the Circuit decided that this issue “should be left for another day
when the claims can be appropriately fleshed out,” id. The plaintiff brings this issue to the fore
in the instant case, claiming that “USAO Matrix rates are needed to attract competent counsel.”
Pl.’s Mem. at 9.
The plaintiff supports her argument with declarations from both her own counsel and
other IDEA practitioners explaining the insufficiency of fee amounts in the District of Columbia,
forcing IDEA practitioners to take fewer clients. See, e.g., Pl.’s Counsel’s Decl. ¶ 21 (explaining
that due to DCPS’ refusal to reimburse reasonable attorney fees and costs, she can no longer
afford to employ her Spanish-speaking paralegal, resulting in “a significant decrease in the
Columbia, 208 F. Supp. 3d 255, 257 (D.D.C. 2016) (Cooper, J.); Taylor v. District of Columbia, 2018 WL 4616053,
at *3 (D.D.C. Sept. 26, 2018) (Friedrich, J.); Merrick v. District of Columbia, 316 F. Supp. 3d 498, 515 (D.D.C.
2018) (A.B. Jackson, J.); Merrick v. District of Columbia, 134 F. Sup. 3d 328, 331 (D.D.C. 2015) (A.B. Jackson, J.);
Joaquin v. District of Columbia, 210 F. Supp. 3d 64, 69 (D.D.C. 2016) (Lamberth, J.); Shaw v. District of Columbia,
210 F. Supp. 3d 46, 51 (D.D.C. 2016) (Lamberth, J.); D.L. v. District of Columbia, 267 F. Supp. 3d 55, 69 (D.D.C.
2017) (Lamberth, J.); Green v. District of Columbia, 102 F. Supp. 3d 15, 23 (D.D.C. 2015) (Mehta, J.); Wimbish,
251 F. Supp. 3d at 195 (Sullivan, J.); Yoo v. District of Columbia, 2019 WL 117606, at *2 (D.D.C. Jan. 7, 2019)
(K.B. Jackson, J.).
27
number of clients” that she is able to represent, and that she can no longer represent non-English
speaking clients); Tyrka Decl. ¶ 42 (“I do not know any lawyer in this jurisdiction supporting a
family on IDEA work for non-paying clients.”); Ostrem Decl. ¶ 9 (“The reasons I have found it
impossible to sustain a practice for indigent parents and students by relying on the ‘fee-shifting’
provision of the IDEA include … some judges regularly awarding hourly rates at 75% of the
rates in the USAO fees matrix … and the general inconsistency and insecurity of income earned
through fee litigation.”); Hecht Decl. ¶ 33 (“The failure of DCPS to timely pay attorneys’ fees
affected [Brown & Associates, the largest special education law firm in the District of Columbia]
significantly, such that the law firm had to lay off two thirds of its staff.”); Hecht Decl., Wimbish,
15-cv-1429 (ESM), ECF No. 17-7 ¶ 1711 (“If all judges, instead of only some, were to award the
hourly rate for my work proposed by the District, 75% of the United States Attorney’s Office
version of the ‘Laffey matrix,’ I would likely be forced to leave my current practice and either
work only for paying clients or find entirely different work.”); Hill Decl. ¶ 12 (“I have turned
away many potential clients who have sought my help during the last two years, solely because
the firm cannot afford to maintain a fulltime staff to assist me.”); Decl. of Maria G. Mendoza
(“Mendoza Decl.”) ¶ 10, Wimbish, 15-cv-1429 (ESM), ECF No. 17-14 (declaring that she has
“almost completely discontinued [non-paying IDEA] work because it was financially
impossible,” and as result, has “turned away many potential clients who have sought my help”).
In choosing to award 75% of Laffey, another judge on this Court has reasoned that the
“sheer number of [IDEA] cases” receiving awards at 75% of Laffey indicates that such awards
will not “dissuade all competent counsel in the region from taking such cases.” Reed, 134 F.
11
Two declarations from Alana M. Hecht are presented in this case, one dated December 13, 2016, docketed
at ECF No. 51-14, and another dated August 12, 2015, docketed in Wimbish, 15-cv-1429 (ESM), ECF No. 17-16,
and incorporated by reference, as requested by plaintiff, see Pl.’s Mem. at 8.
28
Supp. 3d at 131. This observation begs the question of how many IDEA litigators have left this
practice area due to reimbursement at less that the USAO Matrix rate. Evidence presented in this
case suggests that at least some litigators no longer accept non-paying IDEA clients. See, e.g.,
Pl.’s Counsel’s Decl. ¶ 21; Ostrem Decl. ¶ 9; Hill Decl. ¶ 12; Mendoza Decl. ¶ 10. Thus, even if
this observation were narrowly true, a more probative question would be: how many meritorious
IDEA cases have been unable to attract competent counsel? The declarations submitted in this
case suggest real hardship among IDEA practitioners, and a curtailing of their practices, not
because of an insufficient number of would-be plaintiffs seeking vindication of their children’s
IDEA rights, but because IDEA attorneys cannot afford to accept as clients those potential IDEA
plaintiffs unable to afford to pay fees or to bring their cases.
* * *
In sum, the plaintiff has established the reasonableness of using the USAO Matrix as her
attorney’s rate by offering substantial evidence as to “(1) ‘the attorney[’s] billing practices,’ (2)
‘the attorney[’s] skill, experience, and reputation’ and (3) ‘the prevailing market rates in the
relevant community.’” Eley, 793 F.3d at 100 (alterations in original) (quoting Covington, 57
F.3d at 1107). Of these three factors, the District contested only whether the prevailing market
rate for plaintiff’s counsel’s time is the rate provided in the current USAO Matrix. The Court
concludes that the current USAO Matrix, which is predicated on legal services survey data from
“law offices of all sizes and types” in this metropolitan area, Makray, 159 F. Supp. 3d at 51,
provides a reasonable approximation of the prevailing market rates for IDEA attorneys and
therefore the fees “adequate to attract competent counsel,” Blum, 465 U.S. at 897. This
conclusion is bolstered by declarations from the plaintiff’s attorney and other IDEA practitioners
in this metropolitan area averring to the USAO Matrix rates they customarily charge paying
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clients, as well as the compelling evidence documenting IDEA practitioners cutting staff even as
they turn away potential clients, due to significant reductions in the hourly rates for fee awards,
compounded by delays in payment by the District, see, e.g., Pl.’s Counsel’s Decl. ¶ 21; Ostrem
Decl. ¶ 9; Hecht Decl. ¶ 33; Hill Decl. ¶ 12; Mendoza Decl. ¶ 10; Tyrka Decl. ¶¶ 36-38, which
evidence shows that cut-rates fall short of attracting competent counsel to this practice area.
Moreover, the current USAO Matrix’s methodological independence from the original Laffey
case and the Laffey Matrix avoids any need to “go down the rabbit hole of trying to determine”
whether an IDEA case is comparable to “complex federal litigation,” Wimbish, 251 F. Supp. 3d
at 192 n.3, when deciding whether to award fees at the current USAO Matrix rates. Finally, the
District’s demand for an automatic discount of hours spent litigating in administrative
proceedings, as compared to in federal court, is rejected as without any statutory basis.
The District’s remaining arguments are addressed next.
B. No Fee Reduction is Warranted by Plaintiff’s Degree of Success in 2015 HOD
Despite the plaintiff’s undisputed status as a “prevailing party” in the 2015 HOD, the
District argues for a reduction in any award of attorney’s fees because the plaintiff “achieved a
less than stellar result.” Def.’s Opp’n at 19. While the Supreme Court has indicated that the
district court has broad discretion to reduce fee awards based on success, “the fee award should
not be reduced simply because the plaintiff failed to prevail on every contention raised in the
lawsuit.” Hensley, 461 U.S. at 435.
No reduction in the fee award is warranted in the instant case because the plaintiff
achieved substantial success. The hearing officer concluded that DCPS had denied D.M. a
FAPE and ordered that DCPS “revise the Student’s IEP to reflect that all of his academic
instruction should be specialized instruction in a small classroom setting.” Pl.’s Reply at 11.
Moreover, as discussed above, the plaintiff’s appeal of the administrative decision resulted in
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substantial additional relief: the District was ordered to provide “a comprehensive IEE with
assessments in all areas and a mandatory IEP meeting to review the reports from the
assessments.” Id. In assessing the plaintiff’s success in the administrative action for which the
plaintiff now seeks attorney’s fees, consideration of the plaintiff’s ultimate success on appeal is
essential since that result reflects what the hearing officer should have concluded in the first
instance. See Jester v. District of Columbia, 474 F.3d 820, 821 (D.C. Cir. 2007) (“If the parent
wins in district court after losing in the administrative hearing, the parent is eligible to recover
attorney’s fees and costs expended in litigating the controversy from beginning to end.”). The
District’s effort to reduce the fee award with a blinkered focus on the outcome of the 2015 HOD
is simply not persuasive.
The District relies on three IDEA cases in which attorney’s fees were reduced based on
outcomes as support for its position—but those cases are inapposite. Def.’s Opp’n at 18 (citing
A.S. v. District of Columbia, 842 F. Supp. 2d 40 (D.D.C. 2012) (Rothstein, J.), B.R. v. District of
Columbia, 802 F. Supp. 2d 153 (D.D.C. 2011) (Urbina, J.), and Dickens v. Friendship-Edison
P.C.S., 724 F. Supp. 2d 113, 121-123 (D.D.C. 2010) (Kay, Mag. J.)). In A.S. v. District of
Columbia, the Court concluded “that plaintiffs attained only half of the relief they sought” in an
administrative proceeding, which apparently was not appealed, and “[t]herefore, …impose[d] a
reduction of 50 percent on the final award of attorneys’ fees.” 842 F. Supp. 2d at 47, 49.
Likewise, in B.R. v. District of Columbia, the fee award was reduced by half because, though
prevailing on one appealed claim from an HOD, the plaintiffs lost their other “unnecessary”
claim for reimbursement of private school tuition, which had in fact already been paid by DCPS,
was therefore moot, and in the words of the court, “should never have [been] brought.” 802 F.
Supp. 2d at 164-65. Finally, in Dickens v. Friendship-Edison P.C.S, the fee award was reduced
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for a plaintiff who prevailed on only one of three claims at an HOD because the losing claims
were asserted against a charter school defendant that “was no longer responsible for [the
student’s] FAPE, as he had transferred to a different school before the hearing,” “resulting in
unnecessary expenditures of time and effort.” 724 F. Supp. 2d at 122. Thus, in all three of these
cases, the fee awards were reduced for unsuccessful administrative claims that were either not
appealed or firmly rejected on appeal to the district court. By contrast, here, the plaintiff
achieved substantial relief in the 2015 HOD and then obtained additional relief on appeal,
demonstrating the errors made in the 2015 HOD. The District’s apparent position that plaintiffs
should be penalized with reductions in fee awards for errors made in administrative proceedings
that require correction on appeal is counter-productive and rejected.
Notably, the District ignores without comment that in all three of these IDEA cases upon
which it relies, the then extant USAO Laffey Matrix is used to determine the prevailing market
rate and in computing the hourly rate for attorney’s fees. See A.S., 842 F. Supp. 2d at 49
(finding, over the District’s objection, “that using the Laffey Matrix is appropriate” because
“[t]his was not a ‘straightforward’ due process hearing, but clearly involved complex issues
concerning A.S.’s disability and placement”); B.R., 802 F. Supp. 2d at 164 (noting that “Courts
in this district routinely refer to the Laffey Matrix to determine the reasonableness of requested
attorney’s fees in IDEA actions,” and that “the Laffey Matrix represents the prevailing rates for
attorneys in the District of Columbia,” and “appropriately uses it as a guide to determine a
reasonable attorney’s fee award” (collecting IDEA cases applying Laffey Matrix)); Dickens, 724
F. Supp. 2d at 119-120 (recognizing USAO Matrix “as a measure for the reasonableness of
hourly rates in IDEA cases,” and applying those hourly rates without objection from the
defendant, except as to those lawyers whose “actual billing practices” are less and did not show a
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“public-spirited” motive for the lower rates (citing Jackson v. District of Columbia, 603 F. Supp.
2d 92, 96-97 (D.D.C. 2009) (“Courts in this district have routinely held that attorneys’ fees in
IDEA actions are reasonable if they conform to the Laffey Matrix.”)).
In sum, no reduction in the plaintiff’s fee award is warranted based on certain
unsuccessful claims asserted in the administrative proceeding, the majority of which
unsuccessful claims were subsequently corrected on appeal with the award of additional relief.
Further, the cases relied upon by the District in seeking a fee reduction bolster the conclusion
that the current USAO Matrix provides the appropriate hourly rate to apply here.
C. District Concedes Magistrate Judge’s Finding That DCPS Did Not Make A
Settlement Offer
The District originally contended that the plaintiff’s motion for attorney’s fees should be
denied “in its entirety” because “the relief ultimately obtained[] was no better than the relief
Plaintiff requested in settlement, and the District offered that relief.” Def.’s Mem. at 19. As
support for this contention, the District presented an email string between counsel to the parties
showing that, on February 12 and 19, 2016, the District outlined in broad terms the steps that the
District “could agree” to take to resolve the litigation. See generally E-mails from Aaron
Finkhousen, Assistant Attorney General, Office of the Attorney General for the District of
Columbia, to Elizabeth Jester, plaintiff’s counsel, ECF No. 53-1. The Magistrate Judge
described these emails as “an open-ended discussion of settlement between the parties without
any clear offer with definite terms being provided by Defendant,” Atty’s Fees R&R at 30, and
therefore declined to reduce or preclude attorney’s fees based on the District’s purported offer.
The District did not object to that finding in the Magistrate Judge’s Report and Recommendation
and, therefore, the District’s settlement offer argument is conceded. See LCvR 72.2(b); Def.’s
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Notice (Dec. 12, 2018), ECF No. 57 (providing notice that the District “makes no objection to
Magistrate Judge Harvey’s Report and Recommendation”).
Despite this concession, the District nonetheless attempts to resuscitate its settlement
offer argument in its opposition to plaintiff’s objection, asking that the Court award no more than
the amount recommended by the Magistrate Judge because the “Plaintiff unreasonably prolonged
this litigation by declining the District’s offer of settlement.” Def.’s Opp’n Pl.’s Obj. Mem. at 7-
8.
The IDEA provides that “whenever the court finds that [] the parent, or the parent’s
attorney, during the course of the action or proceeding, unreasonably protracted the final
resolution of the controversy … the court shall reduce, accordingly, the amount of the attorney’s
fees awarded.” 20 U.S.C. § 1415(i)(3)(F). Even if it were assumed (contrary to the record and
to the District’s conceding this argument) that the District’s February 19, 2016 email to
plaintiff’s counsel amounted to a formal settlement offer, the claim that the plaintiff
“unreasonably protracted” litigation by not accepting this purported offer is also not supported
by the record. The purported settlement offer was made in February 2016, approximately eight
months after the June 22, 2015 HOD was issued, and approximately five months after the
plaintiff had initiated the lawsuit seeking review of that HOD. Certainly, the plaintiff cannot be
said to have “unreasonably protracted” the final resolution of litigation by declining to accept an
offer of settlement made long after the administrative action was completed, and the appeal of
that decision was filed.
At best, the thrust of the District’s argument is that fees incurred after the February 2016
purported settlement offer should be reduced, but this argument is not well articulated and, in
any event, is also not persuasive. The District speculates that “if Plaintiff would have accepted
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this offer at the time, perhaps D.M. would not have faced the problems that led to the difficulties
in implementing the Court’s award of additional assessments.” Def.’s Opp’n at 19. The
District’s effort to find fault with the plaintiff’s efforts to address D.M.’s issues borders on the
farcical, given that D.M. languished in an inappropriate placement by DCPS, with insufficient
IEPs developed by DCPS, over the plaintiff’s objections, for at least the two school years of
2014-2015 and 2015-2016, resulting in DCPS being found to have denied D.M. a FAPE. In the
end, it took plaintiff’s filing of two administrative complaints and the instant lawsuit to achieve
D.M.’s placement in a full-time special education program in November 2015 and, finally, to a
residential program in December 2017. In these circumstances, no reduction in the fee award is
warranted by the District’s purported settlement offer.
IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion is granted. Having prevailed in her
effort to obtain relief under the IDEA, the plaintiff is entitled to reimbursement of attorney’s fees
and litigation costs she incurred in pursing her successful administrative due process claim.
Further, because she has met her burden of justifying her requested reimbursement rate for the
hours her attorney and paralegal reasonably expended in connection with this effort, the plaintiff
is entitled to attorney’s fees at the full USAO Matrix rate. As a result, the District shall pay the
defendant $87,543.03 in attorney’s fees.
An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: February 15, 2019
__________________________
BERYL A. HOWELL
Chief Judge
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