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Tarsha Wood v. District of Columbia


May 22, 2012


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


This matter is pending before this Court on Plaintiffs' Motion for [summary judgment on the issue of] Fees and Costs ("Fee Motion") and Memorandum in support thereof ("Memorandum") [10]; Defendant's opposition to the Motion ("Opposition") [11]; and Plaintiff's reply to the Opposition ("Reply") [12].*fn1 Plaintiff Tarsha Wood ("Plaintiff') has requested $2,084.10 in legal fees. Defendant District of Columbia ("Defendant" or "the District") contests Plaintiff's prevailing party status and asserts that Plaintiff is not entitled to recovery of any legal fees or costs. (Opposition, Exh. 1 [Defendant's chart of proposed allowable fees and reasons for fee reductions].)


Plaintiff is the parent of a minor child who was the subject of an administrative action brought pursuant to the Individuals with Disabilities Education Act and the Individuals with Disabilities in Education Improvement Act ( collectively "IDEA"), 20 U.S.C. § 1400 et seq. Pursuant to 20 U.S.C. §1415(i)(3)(B), a court may award attorney's fees to a parent who prevails in an IDEA proceeding. Prior to filing this civil action, the Plaintiff participated in a February 19, 2008 due process hearing wherein the Hearing Officer identified the following issue to be considered: [w]hether DCPS denied the student FAPE and failed to convene a compensatory education meeting following the Petitioner's request." (March 5, 2008 Hearing Officer Determination ("HOD") at 2, attached to Notice of Removal [1].) The Hearing Officer concluded that:

1) Pursuant to the Blackman-Jones Consent Decree, members of the class may file a due process complaint when they are dissatisfied with the resolution of a request for compensatory education at an IEP meeting or by Central Administration Personnel. 2) Petitioner met the burden to establish that DCPS failed to satisfy the Petitioner's request for an IEP meeting but Petitioner failed to meet the burden of proof to establish that the alleged procedural violations impeded the child's right to a FAPE; significantly impeded the parent's opportunity to rights afforded by the IDEA 2004, or caused a deprivation of educational benefit. (March 5, 2008 HOD at 2-3.) The Hearing Officer inter alia ordered DCPS to "provide written notice to [counsel for Plaintiff], proposing at least three separate dates and times to convene an IEP/compensatory education meeting within ten days . . . ." (March 5, 2008 HOD at 3.) The Hearing Officer further ordered that "if DCPS fails to convene an IEP/compensatory education meeting pursuant to this HOD, then DCPS shall fund the Petitioner's compensatory education plan." (Id.)

Plaintiff originally filed her complaint for legal fees and costs with the Small Claims and Conciliation Branch of the Superior Court of the District of Columbia. Defendant removed this and other simultaneously filed cases to this Court and the parties subsequently consented to the referral of all such cases to the undersigned Magistrate Judge for all purposes. The parties were directed to brief the issues in these cases in the form of motions for legal fees and responses thereto.


A. Prevailing Party

The IDEA gives courts authority to award reasonable attorney's fees to the parents of a child with a disability who is the prevailing party. 20 U.S.C. §1415(i)(3)(B). An action or proceeding under IDEA includes both civil litigation in federal court and administrative litigation before hearing officers. Smith v. Roher, 954 F. Supp. 359, 362 (D.D.C. 1997); Moore v. District of Columbia, 907 F.2d 165, 176 (D.C. Cir. 1990), cert. denied, 498 U.S. 998 (1990). A party is generally considered to be the prevailing party if he succeeds "on any significant issue in litigation which achieves some of the benefit sought in bring suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

The Supreme Court has indicated that the term "prevailing party" does not include a plaintiff who "fail[s] to secure a judgment on the merits or a court-ordered consent decree." Buckhannon Bd & Care Home, Inc. v. West Virginia Dep't Health & Human Resources, 532 U.S. 598, 606 (2001). The Supreme Court therefore rejected the "catalyst theory" whereby a plaintiff would be a prevailing party if the lawsuit brought about the desired result through a voluntary change in the defendant 's conduct. 532 U.S. at 605. The Supreme Court instead determined that a prevailing party must obtain a "material alternation of the legal relationship of the parties." Id. at 604 (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)). See also District of Columbia v. Straus, Civil Action No. 09-7051, 2010 WL 45932, at *2 (D.C. Cir. Jan. 8, 2010) ("the term 'prevailing party' [is] a legal term of art" that requires more than achieving the desired outcome; the party seeking fees must also have "been awarded some relief by the court.") (quoting Buckhannon, 532 U.S. at 603.)

The standards in Buckhannon apply to administrative hearings under the IDEIA even though the relief granted is administrative as opposed to judicial. Abarca v. District of Columbia, Civil Action No. 06-1254, 2007 WL 1794101 *2 n.1 (D.D.C. June 19, 2007).

B. Fee Requests

The plaintiff has the burden of establishing the reasonableness of any fee requests. See In re North, 59 F.3d 184, 189 (D.C. Cir. 1995); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995) ("[A] fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates.") "An award of attorneys' fees is calculated by multiplying a reasonable hourly rate by the number of hours reasonably expended on the case." Smith, 954 F. Supp. at 364 (citing Hensley v. Eckerhard, 461 U.S. 424, 433 (1983)); Blum v. Stenson, 465 U.S. 886, 888 (1984). The result of this calculation is the "lodestar" amount. Smith, 954 F. Supp. at 364.

20 U.S.C. §1415(i)(3)(C) states that "[f]ees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished." 20 U.S.C. §1415(i)(3)(C). To demonstrate a reasonable hourly rate, the fee applicant must show: an attorney's usual billing practices; counsel's skill, experience and reputation; as well as the prevailing market rates in the community. Covington, 57 F.3d at 1107. The determination of a "market rate for the services of a lawyer is inherently difficult" and is decided by the court in its discretion. Blum, 465 U.S. at 896 n.11. "To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence . . . that the requested [hourly] rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Id. An attorney's usual billing rate may be considered the "reasonable rate" if it accords with the rates prevailing in the community for similar services by lawyers possessing similar skill, experience and reputation. Kattan by Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993).

A party moving for summary judgment on legal fees accordingly must demonstrate prevailing party status and the reasonableness of the fees requested in terms of hours spent and hourly rate. Under Fed. R. Civ. P. 56 (a), summary judgment shall be granted if the movant shows that there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment should be granted against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The court is required to draw all justifiable inferences in the nonmoving party's favor and to accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. The nonmoving party must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. Nor may the non-moving party rely on allegations or conclusory statements; instead, the non-moving party is obliged to present specific facts that would enable a reasonable jury to find it its favor. Greene v Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).


A. Prevailing Party

Defendant argues that the Plaintiff in the instant case is not a prevailing party because the Hearing Officer did not find a denial of FAPE and allegedly awarded only de minimus relief. (Opposition at 7-9.) Plaintiff's underlying administrative complaint asserted that "DCPS had failed to meet to determine compensatory education as required by law." (Reply at 2; see HOD at 2.) While the Hearing Officer indicated that Plaintiff did not meet the burden of proof "to establish that the alleged procedural violations impeded the child's right to a FAPE[,]" he did order DCPS to convene an IEP/compensatory education meeting "to discuss and determine the amount, form and delivery of compensatory education due to the student." (HOD at 2-3.) The Hearing Officer further noted that, if DCPS failed to convene the IEP/compensatory education meeting, it would have to fund a plan developed unilaterally by the Plaintiff. (HOD at 3.)

Plaintiff argues that "the IDEA explicitly allows for relief for a parent in the absence of a finding of denial of FAPE." (Reply at 3); see 20 U.S.C. §1415(f)(3)(E)(iii) (hearing officer may order procedural compliance with law regardless of whether FAPE has been denied). This court has previously held that statements by a hearing officer are not determinative of prevailing party status. See Artis ex rel. S.A. v District of Columbia, 543 F.Supp.2d 15, 22 (D.D.C. 2008) ("Although a hearing officer may make a prevailing party determination, it is the province of the district court to make the ultimate decision as to who prevailed in an IDEA action.") (citation omitted). See also T.S. ex rel. Skrine v. District of Columbia, Civil Action 08-861, 2007 WL 915227 (D.D.C. Mar. 27, 2007) (noting that "[t]he fact that a hearing officer has made a finding on the issue, or has failed to make such a finding, is not controlling")

"[N]either a hearing officer's conclusion that DCPS was a prevailing party, nor his determination that DCPS did not deny the student a FAPE, requires this court to consider DCPS the prevailing party." Bush ex rel. A.H. v. District of Columbia, 579 F. Supp.2d 22, 30 (D.D.C. 2008) (internal citations omitted). In A.H. v. D.C., the plaintiff requested that the Hearing Officer conclude that DCPS denied her child a FAPE and order DCPS to convene an IEP meeting to discuss compensatory education and determine an interim placement. 579 F.Supp.2d at 31. The Hearing Officer concluded that DCPS had not denied the child FAPE but did order DCPS to convene an IEP meeting to complete the IEP and determine placement. Id. at 31. The court found that the Hearing Officer "granted the substance of the plaintiff's [ ] request" and the court further held that the plaintiff succeeded on the merits and was the prevailing party at the due process hearing. Id. at 31-32.

Compare Robinson v. District of Columbia, Civil Action No. 06-1253, 2007 WL 2257326 at *4 (D.D.C. Aug. 2, 2007) (If the [hearing officer] does not find a denial of a [FAPE], this does not necessarily mean that the plaintiffs cannot seek attorney's fees, but recovery is limited."); A.S. v. District of Columbia, Civil Action No. 10-1670, 2012 WL 291349 *5 (D.D.C. Feb. 1, 2012) (finding that with a plaintiff who achieves partial success, the court may identify specific hours to be eliminated or reduce the award to reflect that limited success because it is the "the degree of the plaintiff's success that is the critical factor to the determination of the size of a reasonable fee.") (citing Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 786 (1989)).

"The essential test for prevailing party status is whether a party successfully obtains a 'material alteration of the legal relationship of the parties' with the imprimatur of an adjudication." Skrine, 2007 WL 915227, at *4 (quoting Buckhannon, 532 U.S. at 604). Defendant in this case argues that the showing is not met where the Hearing Officer does not find a denial of FAPE and the Plaintiff only obtains minimal relief. See Abarca v. District of Columbia, 2007 WL 1794101, at *3 (D.D.C. June 19, 2007) (denying prevailing party status under these circumstances). Plaintiff contends that the court in Abarca specifically noted that prevailing party status "depends more on whether [plaintiff] has obtained his primary objective in seeking an administrative hearing" than the Hearing Officer's decision on denial of FAPE. 2007 WL 1794101 at *3. Plaintiff asserts that, in this case, she "requested an exchange of information regarding particular compensatory education, and . . . she obtained not only a meeting for that information exchange [but also] the power to unilaterally determine a final award if the meeting were not held." (Reply at 5.)

This Court finds that Plaintiff did accomplish her primary objective at the administrative hearing, demonstrated by Hearing Officer's order that DCPS convene an IEP/compensatory education meeting "to determine the amount, form and delivery of compensatory education to the student." (HOD at 3.)*fn2 Accordingly, the Court finds that Plaintiff is a prevailing party and further, that she is entitled to recover fees and costs. While the Hearing Officer did not find a denial of FAPE, the Court notes that such determination would be premature in the instance where a petitioner is moving for an IEP/compensatory education meeting, which necessarily precedes the determination of compensatory education due to a student.

B. Reasonableness of Hourly Rates*fn3

Plaintiff seeks fees for the services of one lawyer and three paralegals, to be paid at the following rates: $268.00 per hour for Zachary Nahass, an attorney with approximately 1-2 years experience during the relevant time period, and $146.00/$150.00 per hour for Patrick Meehan, Camille McKenzie and Yanet Scott, who were paralegals with the firm Tyrka & Associates during that same period of time.*fn4 (Plaintiff's Itemization of Fees/Expenses, attached to Notice of Removal [1]; Fee Motion, Exh. 2 [Verified Statement of Douglas Tyrka ("Tyrka")] ¶¶ 8 -11, 15.) According to Tykra's Verified Statement ("Verified Statement"), "[t]he hourly rates in the itemization are the rates Tyrka & Associates has customarily charged." (Exh. 2 ¶4.)

Tyrka further asserts that "clients have retained Tyrka & Associates with the understanding and agreement that the client would retain full responsibility for all fees regardless of what was reimbursed by third parties, at rates consistent with 'the Laffey [M]atrix' as adjusted per the finding in Salazar v. District of Columbia, 123 F. Supp. 2d 8, 14-15 (D.D.C. 2000), and other cases." (Exh. 2 ¶4.)*fn5 Plaintiff relies upon the rates set forth in the "enhanced" Laffey Matrix in her request for attorney's fees but Tyrka's Verified Statement does not indicate how frequently Plaintiff's counsel is paid at these "enhanced" Laffey rates.*fn6 Nor has counsel presented affidavits attesting to the actual billing rates of lawyers who do similar IDEA work. Furthermore, the Plaintiff has not provided specific information about the nature or complexity of the IDEA administrative work performed in this case.

Plaintiff asserts that in order to demonstrate prevailing market rates, she may "point to such evidence as an updated [enhanced] version of the Laffey Matrix or the U.S. Attorney's Office ["USAO"] Matrix, or [her] own survey of prevailing market rates in the community." (Memorandum in support of Fee Motion ("Memorandum") at 8 (citing Covington, 57 F.3d at 1109 (additional citation omitted))). In the Covington case, which involved allegations of civil rights violations, the Court of Appeals for the D. C. Circuit did look to Laffey rates for prevailing market rates but the relevant market therein was "complex federal litigation," 57 F.3d at 1110. In contrast, this case involves IDEA litigation, which is not complex federal litigation because most if not all of the attorney's fees in question are the result of counsel's preparation for attendance at routine administrative hearings. Accordingly, the Laffey Matrix rates are inapplicable as prevailing market rates.

Plaintiff additionally relies upon Rooths v District of Columbia, Civil Action No. 09-0492, Report and Recommendation of March 31, 2011, and Friendship Edison Pub. Charter Sch. v. Suggs, Civil Action No. 06-1284, Motion for Attorneys' Fees of July 10, 2008 and Memorandum Opinion of March 30, 2009 at 5-8. (Fee Motion, Exhs. 5-7).*fn7 According to Plaintiff, in these two IDEA cases litigated in this United States District Court, the firm's clients received an award of fees "based on rates exactly in line with those presented here, . . . " (Memorandum at 8.)

As a preliminary matter, this Court notes that the mere showing that a high hourly rate was approved in another case does not in and of itself establish a new market rate or prove that the new rate is reasonable. Furthermore, Plaintiff's reliance on Rooths v District of Columbia, Civil Action No. 09-0492, Report and Recommendation of March 31, 2011 at 10-11 (Fee Motion, Exh. 5), is misplaced because the trial court ultimately rejected the application of enhanced Laffey rates, applied Laffey Matrix rates as a starting point, and then reduced those rates by 25%. Rooths v District of Columbia, 802 F.Supp.2d 56, 63 (D.D.C. 2011).

In Rooths, the Honorable Paul L. Friedman noted that "[i]n this circuit, the rates contained in the Laffey Matrix are typically treated as the highest rates that will be presumed to be reasonable when a court reviews a petition for statutory attorneys' fees." 802 F Supp. 2d 61. The trial court declined "to approve as reasonable the inflated rates contained in a proposed alternative fee matrix." Id.; see Blackman v. District of Columbia, 677 F. Supp. 2d 169, 176 (D.D.C. 2010) (in determining prevailing market rates, the court declined to apply enhanced Laffey rates). The Rooths court further refused to apply enhanced Laffey rates, in part because it found that the "[enhanced Laffey] matrix was generated using national statistics rather than measurements particular to the District of Columbia area." 802 F. Supp.2d at 62 (emphasis in original); see also DL v. District of Columbia, 256 F.R.D. 239, 243 (D.D.C. 2009) (because the USAO [Laffey]Matrix accounts for price inflation within the local community, it more aptly focuses on the relevant community than the [enhanced] Laffey Matrix based on the legal services index). The Rooths court commented that "[w]hile it is doubtless true that some sectors of the legal services industry have experienced rapid fee inflation in recent years, [it was] unconvinced that fees associated with IDEA litigation in the District of Columbia have increased at the same rate." 802 F. Supp. 2d at 62.

Recognizing the difficulty courts encounter in determining what are reasonable legal fees, this Court agrees with the rationale set forth in Rooths, and finds that the Plaintiff's reliance on an enhanced Laffey Matrix is unsupported because such Matrix does not provide an accurate representation of District of Columbia legal fees applicable to IDEA cases. Nor has Plaintiff demonstrated that IDEA litigation involving administrative hearings is the type of "complex federal litigation" encompassed by the Laffey rates. See McClam v. District of Columbia, Civil Action No. 11-381 (RMC), September 6, 2011 Memorandum Opinion at 8 (declining to apply Laffey rates in part on grounds that "IDEA cases are generally not complex [and in that case,] Plaintiffs . . . pointed to no novel issue or other complexity that turned this, particular IDEA case into a complicated piece of litigation.")*fn8

Defendant's argument against imposition of Laffey rates primarily focuses on the Rooths and McClam decisions, supra. but the Defendant also asserts that "Plaintiffs have made no serious attempt to show that rates under the Laffey Matrix are appropriate in this case or, more specifically, that Laffey rates were necessary to attract competent counsel in the underlying, special education matters." (Opposition at 13.)*fn9 Defendant further argues that there is no "inherent right to Laffey rates." (Opposition at 13 (citation omitted)); see Lively v Flexible Packaging Assoc., 930 A.2d 984, 990 (D.C. 2007) (accepting the Laffey Matrix as one legitimate means of calculating attorney's fees and using it as a starting point instead of an automatic application). Federal courts do not automatically have to award Laffey rates but instead they can look at the complexity of the case and use their discretion to determine whether such rates are warranted. See Muldrow v. Re-Direct, Inc., 397 F. Supp. 2d 1, 4-5 (D.D.C. 2005) ( awarding fees at a rate 25% less than Laffey in a "relatively straightforward negligence suit").

This Court follows the reasoning of the Rooths case and other cases declining to apply enhanced Laffey rates. Considering that this is a straightforward case seeking IDEA legal fees, this Court concludes that the Plaintiff has failed to demonstrate that the hourly rates set by her counsel, which are based on enhanced Laffey rates, are reasonable.*fn10 Such enhanced rates do not reflect what the local legal market will bear in terms of legal fees for IDEA litigation. Using the [USAO] Laffey Matrix as a starting point for determination of a reasonable hourly rate, this Court determines that the hourly rate for Zachary Nahass [attorney with 2 years experience] would be $215.00 instead of $268.00, while the rate for paralegals Patrick Meehan, Camille McKenzie and Yanet Scott would be $125.00/$130.00 instead of $146.00/$150.00.

These rates should be further reduced however because the Laffey Matrix rates are the presumed maximum rates appropriate for "complex federal litigation," Covington v. District of Columbia, 57 F.3d at 1103, and IDEA litigation generally does not fall within that category. The case at issue is no exception to that general rule insofar as it involves a routine administrative proceeding summarized in the Hearing Officer Determination dated March 5, 2008 (HOD [1]) and the time spent [billed] in preparation for the hearing was nominal. (Itemization of Fees/Expenses.) In such a case, an hourly rate below the Laffey Matrix rates is appropriate. See Wilson v. District of Columbia, Civil Action No. 09-2258, 2011 WL 1428090, at *3 (D.D.C. Apr. 14, 2011) (Laffey Matrix is "not generally applicable to IDEA cases because they are not usually complex"); A.C. ex rel. Clark v. District of Columbia, 674 F.Supp.2d 149, 155 (D.D.C. 2009) (finding the USAO Laffey inapplicable in an IDEA case where "almost all of the attorney's fees in question are the result of counsel's preparation for attendance at routine administrative hearing"); Agapito v. District of Columbia, 525 F.Supp.2d 150, 155 (D.D.C. 2007) (adjusting attorney fee award and declining to rely on the Laffey Matrix for these "relatively simple and straightforward IDEIA cases"). The Court will therefore award fees at an hourly rate equal to three-quarters of the USAO Laffey Matrix rate, which is $161.00 for Nahass and $94.00/98.00 for Meehan, McKenzie and Scott.*fn11

C. Costs

Plaintiff seeks costs in the amount of $67.10 for expenses arising from copying ($.10 per page) and faxing ($1.00 per page). Costs for copying, faxing and postage are customarily included in fee awards in IDEA litigation. Kaseman v. District of Columbia, 329 F. Supp. 2d 20, 28 n.7 (D.D.C. 2004). These total costs are not contested by the Defendant and will be awarded to the Plaintiff. Plaintiff also seeks an award of costs for fees charged by Sharon Millis, a special education advocate with over 20 years experience, whose time is billed at $200.00 per hour for 4.25 hours.*fn12 These costs in the amount of $850.00, relating to the services of a non-attorney educational consultant, will be denied on grounds that they are not authorized under the IDEA. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548U.S. 291, 300 (2006) ("[T]he terms of the IDEA overwhelmingly support the conclusion that prevailing parents may not recover the costs of experts or consultants.")

D. Fees and Costs Awarded

The amount of fees and costs requested by Plaintiff is $2,084.10. The legal fees claimed were based on 3.5 hours billed at $268.00/hour, 1.0 hour billed at $146.00/hour and 1.0 hour billed at $150.00/hour. This Court has determined that hourly rates based on 75% of the Laffey Matrix rate are applicable, which means that 3.5 hours are billed at $161.00/hour, 1.0 hour is billed at $94.00/hour and 1.0 hour is billed at $98.00/hour. Total fees thus equal $755.50 and total costs equal $67.10, resulting in an award of $822.60.

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