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BRIDGEFORTH v. DISTRICT OF COLUMBIA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


July 10, 1996

TANISHA BRIDGEFORTH, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION AND ORDER

 Presently pending is plaintiffs' Motion for Attorneys' Fees and Costs. For the reasons stated below, plaintiffs are awarded $ 13,648.57 in attorneys' fees and expenses.

 I. BACKGROUND

 The present case stems from the resolution of an earlier action, Cooper v. District of Columbia, C.A. No. 95-0538. In Cooper, the District of Columbia Department of Human Services' Mental Retardation and Developmental Disabilities Administration notified parents that it intended to discontinue funding for the United Cerebral Palsy Therapeutic Nursery Program ("UCP-TNP") after March 31, 1995. Plaintiffs in Cooper, represented by the same counsel as in the present case, were ten program participants and their parents. On March 24, 1995, following a settlement by the parties which, inter alia, continued funding for the UCP-TNP through June 9, 1995, the Court issued a Consent Order. Among other issues, the Order addressed the matter of Extended School Year ("ESY") placements, which would continue an eligible child's educational services beyond the standard school year. The Consent Order directed the defendants to provide parents with notice of ESY placements no later than May 9, 1995 for students whose Individualized Education Program ("IEP") indicated a need for such services. In addition, the Cooper Consent Order required the District to determine each student's program needs and issue, prior to the end of the school term on June 9, 1995, appropriate notices concerning future educational plans, including ESY placement if appropriate.

 After the District of Columbia allegedly failed to provide timely notices of ESY placements, in violation of the Consent Order, plaintiffs Tanisha Bridgeforth ("Bridgeforth") and seventeen other minor students requested individual due process hearings to obtain ESY services. *fn1" Hearings for sixteen of the students were scheduled for the same day, June 6, 1995. Plaintiffs objected to holding sixteen hearings on the same day, contending that this schedule made meaningful individual determinations impossible. Plaintiff Bridgeforth, however, did receive an individual due process hearing on June 6, 1995, and the hearing officer determined that she should receive ESY services. The other children did not obtain due process hearings prior to the commencement of the Bridgeforth litigation.

 On June 22, 1995, Bridgeforth and seventeen other students filed a complaint and a request for a Temporary Restraining Order ("TRO"), alleging violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiffs sought an injunction requiring the District to provide ESY services for the plaintiffs at UCP-TNP. On June 23, 1995, Judge Friedman, in his capacity as motions judge, issued a TRO only with respect to Bridgeforth, because the other plaintiffs had not yet completed the administrative process. Judge Friedman determined that the motion for a TRO as to the remaining children should await resolution by this Court after a hearing on June 27, 1995. *fn2"

 Following intensive and concentrated discussions between counsel and the Court on the morning the hearing was to take place, the parties resolved their dispute. The District of Columbia agreed to provide and fund summer services for all plaintiffs from July 5, 1995 through August 25, 1995. In light of the parties' resolution of their claims, no determinations were made by the Court concerning the eligibility of the plaintiffs other than Bridgeforth for ESY services or concerning the matter of the District's alleged violations of the Cooper Consent Order

 Thereafter, the plaintiffs filed the instant Motion for Attorneys' Fees and Costs. Plaintiffs seek a total of $ 18,621.07 in attorneys fees and expenses. Defendants object to plaintiffs' fee request and contend that plaintiffs are only entitled to fees and costs in the amount of $ 8,408.12. In general, defendants argue that plaintiffs are not entitled to fees and expenses for those plaintiffs who did not exhaust their administrative remedies, and they contend that other fees and expenses are not sufficiently documented to justify an award.

 II. DISCUSSION

 The IDEA authorizes the Court to award reasonable attorneys' fees to a prevailing party. 20 U.S.C. § 1415 (e)(4)(B). A fee award must reflect the rates prevailing in the community for the kind and quality of services furnished, id. at § 1415(e)(4)(C), and must be in line with rates of attorneys with comparable skill, experience, and reputation. § 1415(e)(4)(F). The Court must reduce a fee award if the time spent is excessive considering the nature of the proceeding. § 1415(e)(4)(F)(iii).

 Unquestionably, plaintiffs and their counsel are entitled to fees for their efforts in this case. However, the amount of attorneys' fees and costs available to plaintiffs depends in large part on whether the attorneys' fees provision of IDEA authorizes a fee award for plaintiffs who prevail at the settlement level but who did not first exhaust administrative remedies before filing suit.

 The IDEA establishes a clear and mandatory system of procedural protections, including impartial due process hearings and judicial review, to facilitate cooperation by parents and local education agencies in securing appropriate educational plans for disabled children. Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982); Powers v. Indiana Dept. of Educ., 61 F.3d 552, 553 (7th Cir. 1995). Congress clearly intended for the procedural safeguards to ensure that decisions were made by the most appropriate parties, i.e., parents and school officials. Hendrick Hudson, 458 U.S. at 205-06. Thus, conformance with the protective procedures set forth in the statute is of paramount importance. Id. Parents may, however, bypass the administrative process if they can show that exhaustion would be futile or inadequate. Honig v. Doe, 484 U.S. 305, 327, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988). The burden of proving an exception to the exhaustion requirement rests upon the party asserting the exception. Id; see also Koster v. Frederick County Bd. of Educ., 921 F. Supp. 1453, 1455 (D. Md. 1996).

 In this case, it is clear that 17 of the 18 plaintiffs did not exhaust administrative remedies prior to filing suit in court. In their complaint, the plaintiffs briefly mention that "exhaustion of administrative remedies is futile." Complaint at 16. Aside from this scant reference to futility, there is no supportive reasoning or proof whatsoever within the complaint or the record as a whole that would justify excusing these plaintiffs from the exhaustion requirement. This is particularly true for those plaintiffs whose current IEP did not include extended school year services.

  It appears to the Court that plaintiffs acted too hastily in bringing suit in this case. As previously noted, plaintiffs moved for contempt in Cooper, alleging that the District's failure to provide notice of ESY placements violated the Consent Order. The Court issued an order for the District to show cause why it should not be held in contempt, and scheduled a hearing on plaintiffs' motion. Rather than seeing their motion for contempt to fruition and seeking relief through that route, however, counsel commenced the administrative fair hearing process for children who were plaintiffs in the Cooper case as well as children who were not part of Cooper. Then, without exhausting administrative remedies or explaining why exhaustion was futile, plaintiffs filed Bridgeforth.

 Still, plaintiffs argue that they are nonetheless "prevailing parties," and therefore entitled to attorneys' fees, because they materially altered the legal relationship between the parties to their benefit. "The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties," and this "touchstone" is a precondition to prevailing party status. Texas State Teachers Ass'n v. Garland Independent Sch. Dist., 489 U.S. 782, 792-93, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989); Beard v. Teska, 31 F.3d 942, 950 (10th Cir. 1994). Moreover, "the fact that [plaintiffs] prevailed through a settlement rather than through litigation does not weaken [their] claim to fees." Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980); Beard, 31 F.3d at 950.

 There is no doubt that plaintiffs achieved considerable success in this litigation, and materially altered the legal relationship of the parties to plaintiffs' benefit. Indeed, the settlement procuring ESY services for all plaintiffs achieved the very benefit that plaintiffs sought in bringing suit. Moreover, at the time the settlement was reached, no determination had been made concerning whether the non-exhausting plaintiffs were appropriately before the Court. Thus, at the time of the settlement, the initial plaintiffs remained plaintiffs and acquired "prevailing party" status.

 The Court has some sympathy for defendants' position that plaintiffs should not be permitted to garner the benefit of an attorneys fees award through short-circuiting the administrative process, filing suit in court, and obtaining a favorable settlement. Still, the District should have done more to protect its interests, e.g., it could have insisted that reduced attorneys fees be part of the settlement package, or moved to dismiss the non-exhausting plaintiffs prior to entering into a settlement agreement. The District did not do so, however, and, as a consequence, all plaintiffs were afforded the benefits of the settlement agreement and obtained "prevailing party" status as a result. *fn3" Accordingly, due to the unusual scenario of this case, attorneys fees are recoverable for efforts spent on behalf of all plaintiffs, and not just the plaintiff who first exhausted her administrative remedies.

 Reasonableness of Fees Sought

 In addition to determining whether fees are recoverable for the non-exhausting plaintiffs, the Court must determine whether the remainder of plaintiffs' fee request is reasonable. The Court has considerable discretion in evaluating the reasonableness of plaintiffs' fee request and in determining the appropriate award. Kattan v. District of Columbia, 301 U.S. App. D.C. 374, 995 F.2d 274, 278 (D.C. Cir. 1993), cert. denied, 128 L. Ed. 2d 71, 114 S. Ct. 1398 (1994). And, as previously stated, the Court must reduce a fee award if the Court finds the request excessive.

 Upon review of plaintiffs' fee request, the Court has determined that certain charges are excessive in relation to the nature of the activity charged. In several instances, plaintiffs charge an identical amount for each plaintiff for time spent by an attorney preparing virtually identical documents on behalf of each plaintiff. For example:

  1. Plaintiffs seek 18 minutes in attorney time, at $ 25.50, for each of 28 "Letter[s] to Cecilia Wirtz, Esq. re: document request," for a total charge of $ 714;

 2. Plaintiffs seek 18 minutes in attorney time, at $ 25.50, for each of 18 "Hearing request[s] to Dr. Burch," for a total charge of $ 459. Interestingly, the charge for one of the letters is dated July 5, 1995, well after final resolution of this case. The letters are identical, save for the name of the child and his or her parent(s). See Exhibits 1-18, attached to plaintiffs' Motion for Temporary Restraining Order (June 22, 1995) *fn4"

 3. Plaintiffs seek 18 minutes in attorney time, at $ 25.50, for each of 15 "Letter[s] to Dr. Burch re: scheduling bearing," for a total charge of $ 382.50;

 4. Plaintiffs seek 1 1/2 hours in attorney time, at $ 127.50, for "preparing discovery for due process hearing[s]" on behalf of each of 16 plaintiffs, for a total charge of $ 2040.00. Incredibly, all this time (24 hours) is billed by the same attorney for the same day, June 1, 1995. This same attorney billed another six hours for June 1, 1995 for her research activities, for a total of 30 billed hours for one attorney for one 24 hour day.

 5. Plaintiffs seek 18 minutes, at $ 25.50, for each of 17 "letter[s] to Donovan Anderson, Esq. re: additional document for due process hearing," for a total charge of $ 433.50;

 6. Plaintiffs seek 18 minutes, at $ 25.50, for each of 16 "letter[s] to Lynn Milgram re: confirmation to attend hearing" and "follow-up conversation," for a total charge of $ 408. According to plaintiffs' submission, 16 separate "follow-up conversation[s]" took place between the attorney and Ms. Milgram on the same day, June 5, 1995;

 7. Plaintiffs seek 18 minutes, at $ 25.50, for each of 16 "letter[s] to Donovan Anderson, Esq. re: additional witness for due process hearing," for a total charge of $ 408; and

 8. Plaintiffs seek 18 minutes, at $ 25.50, for each of 17 "letter[s] to client re: status of ESY services," for a total charge of $ 433.50.

 As is plainly evident from the above-listed examples, in some instances plaintiffs seek fees far in excess of what is reasonable for the work performed. In this age of computer technology, the Court simply cannot countenance these substantial separate attorney charges for preparation of virtually identical documents on behalf of similarly-situated plaintiffs, when the task simply involves printing another document.

 Moreover, the Court has reviewed copies of the letters, submitted by defendants, and compared them with plaintiffs' fee request. In several instances, separate time charges are sought for numerous plaintiffs for simple letters which themselves are written on behalf of multiple plaintiffs. See Def. Exh. 1-7, copies of which are attached to this Memorandum Opinion and Order. For example, Def. Exh. 3 is a May 22, 1995 letter from plaintiffs' counsel to Dr. Robert Burch, requesting that immediate hearings be scheduled for 16 students, whose names are listed in the letter. Plaintiffs' fee submission seeks separate 18 minute charges for 15 plaintiffs for preparation of the same letter. Plaintiffs' fee request in connection with these boilerplate documents is unquestionably excessive. Accordingly, plaintiffs shall be awarded only a single charge for each of the above-listed activities, for a total award of $ 306.00. This corresponds to compensation for nearly four hours of attorney time for preparation of several simple and routine documents, in contrast to the 62 hours sought by plaintiffs. *fn5" This adjustment reduces plaintiffs' fee award from the $ 18,621.07 sought by plaintiffs to a more reasonable sum of $ 13,648.57.

 III. CONCLUSION

 For the reasons expressed above, it is hereby

 ORDERED that plaintiffs are awarded $ 13,648.57 in attorneys' fees and costs. A separate judgment will be issued this date.

 IT IS SO ORDERED.

 July 10, 1996

 JOYCE HENS GREEN

 United States District Judge

 DEFT./RESP.

  EXHIBIT 1

 CASE # CA95-1195 JHG

 BOGIN AND EIG, P. C.

 ATTORNEYS AT LAW

 SUITE 300

 1776 MASSACHUSETTS AVENUE, N.W.

 WASHINGTON, D.C. 20036

 (202) 667-7373

 FACSIMILE: (202) 667-9146

 March 23, 1995

 Cecilia Wirtz, Esq.

 Attorney-Advisor

 D.C. Public Schools

 Room 1114

 415 12th Street, NW

 Washington, DC 20004

 RE: United Cerebral Palsy Therapeutic Nursery Program

 BY FACSIMILE

 Dear Ms. Wirtz:

 I am writing to request all documents regarding the following students, all of whom attend the Therapeutic Nursery Program at Carver Educational Center. I am enclosing copies of the authorization forms for each student for this purpose. The students are as follows:

 

Jerrell Cole

 

Willow Cooper

 

Edwina Edmundson

 

Jerome Mayo

 

Steven Shane Morgan

 

Aaron Payne

 

Jonathan Rood, Jr.

 

Marquette Roy

 

Nicholas A. Taylor

 Thank you for your prompt attention to this matter.

 Sincerely,

 Francisco Lopez

 Enc.

 FL/hmi

 DEFT./RESP.

  EXHIBIT 2

 CASE # CA95-1195 JHG

 BOGIN AND EIG, P. C.

 ATTORNEYS AT LAW

 SUITE 300

 1776 MASSACHUSETTS AVENUE, N.W.

 WASHINGTON, D.C. 20036

 (202) 667-7373

 FACSIMILE: (202) 667-9146

 May 11, 1995

 Cecilia Wirtz, Esq.

 Attorney-Advisor

 D.C. Public Schools

 Room 1114

 415 12th Street, NW

 Washington, DC 20004

 RE: United Cerebral Palsy Therapeutic Nursery Program

 BY FACSIMILE

  Dear Ms. Wirtz:

  According to my records, in my letter of March 23, 1995, I requested documents for each of the following students, however have yet to receive any documents. I would ask that you forward these to our offices as soon as possible. The students are as follows:

  

Jerrell Cole

  

Willow Cooper

  

Edwina Edmundson

  

Jerome Mayo

  

Steven Shane Morgan

  

Aaron Payne

  

Jonathan Rood, Jr.

  

Marquette Roy

  

Nicholas A. Taylor

  Thank you for your prompt attention to this matter.

  Sincerely,

  Francisco Lopez

  FL/hmi

  DEFT./RESP.

   EXHIBIT 3

  CASE # CA95-1195 JHG

  BOGIN AND EIG, P. C.

  ATTORNEYS AT LAW

  SUITE 300

  1776 MASSACHUSETTS AVENUE, N.W.

  WASHINGTON, D.C. 20036

  (202) 667-7373

  FACSIMILE: (202) 667-9146

  May 22, 1995

  By Facsimile

  Dr. Robert Burch

  Director, Student Hearing Office

  D.C. Public Schools

  415 Twelfth Street, NW

  Washington, D.C. 20004

  Dear Dr. Burch: I am writing to request that immediate hearings be scheduled for the following students: Tanisha Bridgeforth Steven Shane Morgan Jerrell Cole Aaron Payne Willow Cooper Tarkus Albedo Pollard Brian Crockett Jonathan Rood, Jr. Tristan Dew Marquette Roy Edwina Edmundson Erica Seymore Monet Gaskins Raasheem Jamal Sharpe Jerome Mayo Nicholas A. Taylor

19960710

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