The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This case is before the Court on the motion of plaintiffs
Kenneth Ewell, Kieran Ewell, Shontay Alexander, Delonte Taylor,
Shirita Taylor, De'Angelo McNeil, Jay Brown, Aaron Sanders,
Marcus Taylor (DOB: 5/31/91), Antwon Lee, Mark Moore, Marcus
Taylor (DOB: 3/30/93). Derrick Boney, Debra Moore, Teon Lindsay,
Vincent Martin and Mirian Batista for attorneys' fees and costs
incurred on a motion for immediate relief filed on their behalf
on December 23, 1998.*fn1 Plaintiffs filed their motion for
attorneys' fees and costs on May 6, 1999. On June 4, 1999, over
four weeks after the motion for attorneys' fees was filed,
defendants filed a nunc pro tunc motion for enlargement of time
until June 16, 1999, to respond to plaintiffs' motion. On June
16, 1999, defendants filed another motion for extension of time,
requesting until July 30, 1999, to respond to plaintiffs' motion.
These motions for extensions of time are unacceptable,
especially since the first was filed a full two weeks after
defendants' opposition was due. See Rule 6(b), Fed.R.Civ.P. (a
motion for enlargement filed after the due date may be granted
where the failure to act timely was the result of excusable
neglect); Barton-Smith v. District of Columbia, Civil Action
No. 98-3026, Order of June 1, 1999 at 2 (D.D.C.) ("The Office of
the Corporation Counsel has made a habit of failing to respond to
motions, appearing late for Court (when it appears at all),
misplacing Court orders and notices of hearings, and failing to
respond timely, if at all, to discovery requests in many cases on
the calendar of the undersigned as well as in cases before other
judges of this Court. It ill-behooves the District to request
relief . . . when it has such a dismal record of compliance with
Court rules and Court orders").
Moreover, there have been a number of other motions for
attorneys fees filed by class members in these two consolidated
cases, and when defendants actually have filed oppositions, those
oppositions generally have been short, unhelpful memoranda
assessing the District's continued position that Section 130 of
the District of Columbia Appropriations Act of 1999 limits the
fees that may be awarded. The Court already has ruled that
Section 130 applies only to actions brought under the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400, et seq., and
not to actions brought pursuant to 42 U.S.C. § 1983. See Petties
v. District of Columbia, Civil Action No. 95-0148, Order of May
14, 1999 (D.D.C.). Since the instant actions clearly were brought
pursuant to Section 1983, see Opinion of June 3, 1998 at 8-15,
the oppositions previously filed by the District
would, if considered here, be singularly unhelpful. The Court
therefore will deny the motions for extensions of time.
Defendants are deemed to have waived any arguments except as
expressly provided in this Opinion and Order. See Local Rule
108(b) ("Court may treat the motion as conceded" if opposition is
not timely filed).
In an action brought pursuant to 42 U.S.C. § 1983, the Court,
in its discretion, "may allow the prevailing party, other than
the United States, a reasonable attorney's fee as part of the
costs." See 42 U.S.C. § 1988. The first issue is whether
plaintiffs are prevailing parties. The history of plaintiffs'
motion for immediate injunctive relief is somewhat complicated.
Plaintiffs, seventeen members of the class certified in these two
consolidated cases, filed a motion for immediate relief on
December 23, 1998. At the time the motion was filed, the Court
already had found the District liable to the class of plaintiffs
and had set the case for trial on the issue of remedy. These
seventeen class members alleged that they could not wait until
the issue of class-wide remedy was resolved because they faced a
threat of irreparable injury if they were not granted immediate
On January 22, 1999, the Court held a hearing on plaintiffs'
motion, and defendants represented that they were attempting to
provide relief to these plaintiffs. The Court directed the
parties to file a joint status report on their efforts to resolve
the motion. On January 29, 1999, the parties filed a joint status
report indicating that they had agreed on a schedule to resolve
the outstanding issues with respect to all of the plaintiffs.
With one exception, DCPS agreed to issue a Notice of Proposed
Placement for each plaintiff by a date certain, the latest of
which was February 26, 1999.*fn2 The motion for immediate
injunctive relief therefore was held in abeyance until February
26, 1999, at which time plaintiffs would withdraw the motion if
defendants had timely issued Notices of Proposed Placements for
each of the plaintiffs.
On March 2, 1999, plaintiffs filed a request for ruling on the
motion for immediate relief with respect to nine of the
plaintiffs. Plaintiffs first indicated that defendants had
provided substantial relief according to the terms of the
agreement of January 29, 1999, for seven of the plaintiffs —
Kenneth Ewell, Kieran Ewell. Shontay Alexander, Delonte Taylor,
Shirita Taylor, De'Angelo McNeil and Jay Brown. Plaintiffs also
indicated that one plaintiff, Vincent Martin, had "moved from the
jurisdiction without receiving any relief." See Pls' Request
for Ruling at 1. With respect to the claims of the other nine,
plaintiffs requested a ruling on their pending motion for
immediate injunctive relief because defendants had failed to
issue the promised notices of proposed placements. See id.
In the meantime, the Court had appointed a Special Master to
facilitate a resolution of or to provide a report and
recommendation on claims for immediate injunctive relief filed by
members of the class certified in Blackman and Jones. See
Order of February 12, 1999. The Court therefore referred the
motion for immediate injunctive relief filed on behalf of the
nine children to the Special Master. Prior to issuance of a
report and recommendation by the Special Master, plaintiffs
withdrew their request for immediate injunctive relief on behalf
of Mirian Batista. It is not clear whether Mirian received any
relief prior to withdrawing her motion. See Report and
Recommendations of Special Master, Att. 1 (Letter from Charles
With respect to the claims of the remaining eight, the Court
granted preliminary injunctive relief to seven — Aaron Sanders,
Marcus Taylor (DOB: 5/31/91), Antwon Lee, Mark Moore, Marcus
Taylor (DOB: 3/30/93), Derrick Boney and Debra Moore — and held
in abeyance the motion with respect to Teon Lindsay. See Order
of April 22, 1999. The status of relief provided to Teon Lindsay
is not clear from the record. The motion for immediate injunctive
relief was held in abeyance at the request of plaintiffs'
counsel, presumably because a settlement of Teon's claims was
being negotiated with defendants, but it is not clear whether he
has since received any relief.
A plaintiff is a "prevailing party" for purposes of Section
1988 if she obtains "at least some relief on the merits of [her]
claim" in the form of an enforceable judgment "or comparable
relief through a consent decree or settlement." Farrar v.
Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).
Thus, if a court rules in a plaintiffs favor and grants her the
relief she sought, she clearly is a prevailing party. If a
plaintiff obtains relief through a settlement before a court has
ruled on the merits, she still may be considered a prevailing
party for purposes of Section 1988. See Maher v. Gagne,
448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) ("The fact
that [plaintiff] prevailed through a settlement rather than
through litigation does not weaken her claim to fees" pursuant to
Section 1988); cf. National Black Police Ass'n v. District of
Columbia, 168 F.3d 525, 528 (D.C.Cir. 1999) (plaintiffs were
prevailing parties because injunction "alter[ed] the legal
relationship between the parties by modifying the defendant's
behavior in a way that directly benefits the plaintiff"). In such
a case, however, the Court must determine that "there were
colorable civil rights claims involved in the case and [that]
they served as catalysts in securing the result" before plaintiff
can be considered a prevailing party. Grano v. Barry,
783 F.2d 1104, 1110 (D.C.Cir. 1986) (emphasis added).
Applying that analysis to this case, the Court concludes that
fourteen of the plaintiffs are prevailing parties for purposes of
Section 1988. The seven whose requests for preliminary
injunctions were granted — Aaron Sanders, Marcus Taylor (DOB:
5/31/91), Antwon Lee, Mark Moore, Marcus Taylor (DOB: 3/30/93),
Derrick Boney and Debra Moore — clearly have prevailed for
purposes of Section 1988 and are entitled to attorneys' fees.
These seven plaintiffs received a ruling from the Court that
defendants were liable to them and that they faced immediate and
irreparable injury in the absence of immediate injunctive relief.
By the Court's Order, plaintiffs received the substantial
injunctive relief they sought by filing their motion, and they
therefore are prevailing parties entitled to reasonable
attorneys' fees and costs. See National Black Police Ass'n v.
District of Columbia, 168 F.3d at 528 n. 2 ("`[O]nce a court
has already ruled that the claims are actionable — not just
colorable — civil rights claims, the question of whether the
party meets the statutory requirement of having prevailed on the
basis of "civil rights" claims has been unequivocally answered'")
(quoting Grano v. Barry, 783 F.2d at 1111).
The seven plaintiffs who received relief from the District
after the filing of their motion for immediate injunctive relief
but before March 2, 1999 — Kenneth Ewell, Kieran Ewell, Shontay
Alexander, Delonte Taylor, Shirita Taylor, De'Angelo McNeil and
Jay Brown — also are prevailing parties. See Farrar v. Hobby,
506 U.S. at 111-12, 113 S.Ct. 566 (plaintiff is prevailing party
if she receives substantial relief through consent decree or
settlement). All seven of them received the substantial relief
from the District that they had sought in their motion. Moreover,
it is clear that there were "colorable" civil rights claims
involved in the case. See
Grano v. Barry, 783 F.2d at 1110. In fact, the underlying civil
rights claims at issue in this case not only are ...