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PETTIES v. DISTRICT OF COLUMBIA

May 14, 1999

NIKITA PETTIES, ET AL., PLAINTIFFS,
v.
THE DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

ORDER

This case came before the Court on the motion of defendants to vacate the Consent Order of October 23, 1998 and on the Fifteenth and Sixteenth Motions for Fees and Costs filed by plaintiffs. For the reasons stated in open Court at the hearing on May 12, 1999, the Court concludes that Section 130 of the District of Columbia Appropriations Act of 1999, which is part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub.L. No. 105-277, does not apply to plaintiffs because this action was brought pursuant to 42 U.S.C. § 1983, rather than under the IDEA. Plaintiffs therefore are entitled to recover attorneys' fees pursuant to 42 U.S.C. § 1988, without regard to the limitations imposed by Section 130.

Because plaintiffs are recovering fees pursuant to Section 1988, however, they are not entitled to reimbursement for the costs of experts. See West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 88, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). After the hearing, plaintiffs filed a response regarding reimbursement for the costs of Tony Records and Associates, Inc., in which they argue, inter alia, that those costs should be reimbursed pursuant to 28 U.S.C. § 1915. The District of Columbia has not yet had an opportunity to respond to plaintiffs' argument, and the Court therefore will not rule on that issue at this time. Accordingly, it is hereby

ORDERED that defendants' motion to vacate the Consent Order of October 23, 1998 is DENIED insofar as it seeks pursuant to Section 130 to limit the attorneys' fees paid to plaintiffs and GRANTED insofar as it seeks to vacate that portion of the Consent Order that relates to reimbursement for the cost of experts; it is

FURTHER ORDERED that plaintiffs are entitled to recover reasonable attorneys' fees on their fifteenth and sixteenth motions for attorneys' fees without regard to the limitations imposed by Section 130; it is

FURTHER ORDERED that this Order is STAYED pending appeal. See Rule 62(f), Fed.R.Civ.P.; Hoban v. Washington Metropolitan Area Transit Authority, 841 F.2d 1157, 1158-59 (D.C.Cir. 1988); it is

FURTHER ORDERED that by May 21, 1999, defendants shall file a response to plaintiffs' argument that they are entitled to reimbursement for costs associated with the services of Tony Records & Associates, Inc., for the period covered by the fourteenth, fifteenth and sixteenth motions for attorneys' fees and costs; and it is

FURTHER ORDERED that in accordance with the procedure set forth in the Court's Order of June 29, 1995, for the resolution of quarterly motions for attorneys' fees, the District may file a response to plaintiffs' fifteenth and sixteenth motions for attorneys' fees within fourteen days after resolution of the appeal.

SO ORDERED.

OPINION

This case is before the Court on plaintiffs' motion to partially lift the stay entered on May 14, 1999 with respect to payment of attorneys' fees owed to them by the District of Columbia. Class counsel has diligently litigated this case for over five years, and plaintiffs have largely prevailed. Defendants therefore clearly are liable to plaintiffs for attorneys' fees and costs. Yet defendants have refused to provide class counsel with any reimbursement for any time spent on this case from May 1998 until the present. A review of the papers submitted by the parties and the recent history of this case make clear that the relationship between opposing counsel has deteriorated and that the Office of the Corporation Counsel now is acting in a punitive way towards class counsel.

I

Pursuant to the Court's Order of June 29, 1995, plaintiffs have filed on a quarterly basis motions for attorneys' fees and costs. On September 23, 1998, plaintiffs filed a Fourteenth Motion for Attorneys' Fees and Costs to recover costs and fees incurred for the quarterly period from May 1, 1998 through July 31, 1998. On October 22, 1998, the parties, as had been their practice, submitted a Consent Order settling plaintiffs' motion. The Court signed the Order awarding fees and costs on October 23, 1998. Two months later, on December 23, 1998, the District still had not paid the outstanding amount, and it filed a motion to vacate the Consent Order on the ground that Section 130 of the District of Columbia Appropriations Act of 1999, which is part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub.L. No. 105-277, limits the fees that plaintiffs may recover in this case to $50 per hour.

On December 23, 1998, the same day that defendants filed their motion to vacate, plaintiffs filed a Fifteenth Motion for Attorneys' Fees and Costs to recover costs and fees incurred for the period from August 1, 1998 through October 31, 1998. The District opposed that motion on the ground that Section 130 precludes it from paying above $50 per hour. On April 22, 1999, plaintiffs filed a Sixteenth Motion for Attorneys' Fees and Costs seeking ...


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