Plaintiffs' Joint Declaration at 9, 17, 18, 21, etc. Such a criticism must be considered "nit-picking."
In addition, defendants' criticism of plaintiffs' counsel's scheduling practices is not well received in light of both the facts of this case and this court's own scheduling practices. During the evidentiary hearing, plaintiffs' counsel and other EHA attorneys' testified that it is extremely difficult to deal with DCPS on scheduling matters. I credit their testimony. Scheduling hearings and meetings with DCPS is unfortunately a time consuming matter. It is time consuming through no fault of plaintiffs' counsel. I find that much of the time spent by plaintiffs' counsel on scheduling matters is the direct result of DCPS' own practices. Moreover, I am reluctant to find fault with plaintiffs' counsel's penchant for handling their own scheduling because I require attorneys in charge of the litigation to be present at status conferences to handle scheduling matters. It has been this court's experience that dealing with proxies on scheduling matters often leads to conflicts, delays, missed appearances and generally inadequate results. Finally, aside from being "nit-picking," defendants' criticism of plaintiffs' counsel's allocation of responsibility for scheduling amounts to an attack on their staffing methods. Plaintiffs' counsel's staffing patterns have explicitly been found to be an inappropriate topic of inquiry in attorneys' fees litigation by this Circuit. See generally Laffey v. Northwest Airlines, 241 U.S. App. D.C. 11, 746 F.2d 4, 25-26 (D.C. Cir. 1984) (deference to marketplace for prevailing rate "obviates the need to set a 'true' staffing pattern to go along with the 'true value' set on the firm's services").
Plaintiffs' counsel testified before this court about the productivity of the hours they expended. They testified about their billing practices and explained the discretion they used to pare down their hours to reflect only productive and billable time. See National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1326. They also testified about the integrity of their billing system. I credit their testimony. In fact, my careful observation of plaintiffs' counsel's method of staffing the attorneys' fees aspect of this case and the briefs they submitted in this court strongly indicates the efficiency of plaintiffs' counsel. Their briefs are short and to the point. They waste little effort. Based on their overall performance, I find that plaintiffs' counsel staff their cases in a reasonable and efficient manner.
D. The Nature of this Litigation
In National Association of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319, 1324 (D.C. Cir. 1983) (Tamm, J.), a panel of this Circuit expressly warned that "contests over fees should not be permitted to evolve into exhaustive trial-type proceedings."
I fear that because of defendants' remarkable intransigence, that in fact is what has happened here. As the circuit court emphasized, the danger of permitting attorneys' fees contests to become full blown trial-type affairs is that attorneys may be deterred from undertaking EHA actions. This would undercut Congress' intent when it incorporated an attorneys' fees provision in that Act. Based on the arguments I have heard and the testimony given at the evidentiary hearing, I find that the District has adopted a "do not settle, do not pay" stance vis a vis plaintiffs' counsel. The facts in this case permit no other explanation. Attorneys' fees litigation is costly, time-consuming and when undertaken either in bad faith or with no hope of success, notably unproductive. Time is unnecessarily wasted and costs are senselessly incurred. Nothing is obtained in return.
Lani Moore, the named plaintiff in this case, obtained the private school placement she sought in the Summer of 1985. Plaintiffs' counsel represented Ms. Moore at the administrative hearings in July and August of 1985 which led to her placement. It is now late November, 1987, and plaintiffs' counsel have yet to receive a nickel from the District of Columbia in the Lani Moore case, or for that matter, in any of these cases.
There can be no doubt that the District of Columbia has adopted a deliberate policy of delay in these cases. In the attorneys' fees aspect of this litigation alone, defendants have asked this court for at least nine separate extensions of time.
Leaving aside the legality of the policy, I find it patently unfair that defendants have withheld all the attorneys' fees at issue here -- even the amount that defendants concede they owe -- during the pendency of the litigation over the disputed amount.
It is clear to me that the District has decided to stonewall plaintiffs' counsel. Plaintiffs' counsel have suggested a number of theories to explain defendants' intransigence. I am not interested in such speculation. I simply want the policy to come to a halt. The wall must come down. The scenario that occurred in this case should not be repeated. The District must strive in the future to resolve attorneys' fees disputes through prompt, good faith negotiations.
E. Summary of Findings and Conclusions
1. Each of the nine plaintiffs was a prevailing party.
2. The prevailing community rate for the work performed in this case is $ 125.00 for partners and $75.00 per hour for associates. Defendants, in fact, have previously paid these counsel those rates both in settlements and pursuant to court orders. Pursuant to a voluntary agreement with this court, plaintiffs' counsel have reduced their attorneys' fees request to $ 115.00 per hour for partner time in this case.
3. The documentation provided in this case was more than adequate. Plaintiffs' counsel presented accurate records. Their customary practices for accounting for time satisfy the legal requirements for attorneys' fees requests. The hours spent were productive and reasonable.
4. The amounts requested for attorneys' fees by plaintiffs' counsel in their Proposed Findings of Fact and Conclusions of Law are reasonable. However, in this case, pursuant to the agreement to set the rate for partner time at $115.00 per hour, rather than the $125.00 per hour requested, the overall fee award has been reduced from the $51,106.92 requested by $2,632.40 to $48,474.52. This reduction reflects the $10.00 reduction in the rate for partner hours.
The overall award reflects $29,357.45 for the litigation on the merits at the administrative hearings and $19,117.07 for the attorneys' fees litigation before this court. A complete breakdown and summary of the hours, rates and costs for each of the nine cases and the attorneys' fees litigation is attached to this Memorandum Opinion and Order as an Appendix.
5. The $50.00 per hour requested for the services of an educational diagnostician in the Lani Moore case is a reasonable rate for such services. The request for reimbursement for the 28 hours productively spent is reasonable. This amount is incorporated in the overall award.
6. The $75.00 per hour requested for the services of a clinical psychologist in the Jennifer Daely-Hynes case is a reasonable rate for such services. The request for reimbursement for the 11.5 hours productively spent is reasonable. This amount is also incorporated in the overall award.
7. The defendants have unreasonably delayed the progress of this litigation. They have made burdensome and overbroad requests and have caused plaintiffs' counsel to spend an inordinate amount of time litigating for attorneys' fees.
Plaintiffs' counsel's request for attorneys' fees for litigating the attorneys' fees issues is granted.
The excessive time devoted to litigating the attorneys' fees issue is because of defendants' intransigence.
8. The defendants' scorched earth policy in this attorneys' fees case led directly to the expenditure of a great deal of extra time and effort on the part of all counsel. I would hope that in the future the defendants will be more selective and prudential in the manner and method in which they litigate attorneys' fees cases.
Based on the foregoing Memorandum Opinion, it is hereby
ORDERED that judgment is entered for plaintiffs; and it is further
ORDERED that defendants shall promptly pay plaintiffs' counsel the $ 48,337.42 it owes plaintiffs in attorneys' fees and costs. Said payment shall be made no later than fifteen days from the issuance of this Order; and it is further
ORDERED that plaintiffs' counsel shall reimburse plaintiffs for any payments they have made to counsel and that they shall make appropriate payments to their experts;
Total Attorneys' Fees for Litigation of the Merits
Rate Hours Total
Lani Moore Michael Eig $ 100.00 43.7 $ 4370.00
Matthew Bogin 100.00 1.0 100.00
Laura Solomon 50.00 28.0 1400.00
Costs - - - 0 -
TOTAL AWARD - - $ 5870.00
Rate Hours Total
Fishman Michael Eig $ 115.00 65.8 $ 7567.00
Matthew Bogin 115.00 .75 86.25
Beth Goodman 115.00 3.30 379.50
Costs - - 119.31
TOTAL AWARD - - $ 8152.06
Daley-Hynes Matthew Bogin $ 115.00 29.85 $ 3432.75
Vicki Swanson 75.00 1.90 127.50
Marilyn Fuchs 75.00 11.50 862.50
Costs - - 68.71
TOTAL AWARD $ 4491.46
Peter Cook Matthew Bogin $ 115.00 7.0 $ 805.00
Costs - - 9.21
TOTAL AWARD $ 814.21
Anika Cox Matthew Bogin $ 115.00 17.5 $ 2012.50
Beth Goodman 75.00 1.5 112.50
Costs - - 27.25
TOTAL AWARD $ 2152.25
Robert White Matthew Bogin $ 100.00 16.25 $ 1625.00
Costs - - 12.55
TOTAL AWARD $ 1637.55
Rastatter Matthew Bogin $ 115.00 23 $ 2645.00
Costs - - 15.75
TOTAL AWARD $ 2660.75
Holmes Matthew Bogin $ 115.00 23.95 $ 2754.25
Costs - - 41.65
TOTAL AWARD $ 2795.90
Hampton-Day Michael Eig $ 125.00 1.2 $ 150.00
Beth Goodman 75.00 8.3 622.50
Costs - - 10.77
TOTAL AWARD $ 783.27
Overall Total Award for the Nine Cases = $ 29,357.45
Total Attorneys' Fees Award
For The Attorneys' Fees Litigation
NAME RATE HOURS TOTAL
Matthew Bogin $ 115.00 31.50 $ 3622.50
Michael Eig $ 115.00 76.40 8786.00
Beth Goodman $ 75.00 31.90 2392.50
Bradford Johnson $ 75.00 35.05 2628.75
Vicki Swanson $ 75.00 11.00 825.00
Gayle Rosen $ 25.00 1.50 37.50
Total Attorneys' Fees $ 18,292.25
TOTAL AWARD $ 19,117.07
Mertis Litigation $ $ 29,357.45
Attorneys' Fees Litigation 20,196. 19,117.07
TOTAL $ $ 48,474.52
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