United States District Court, D. Columbia.
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For WILMA ELEY, Plaintiff: Douglas Tyrka, LEAD ATTORNEY, TYRKA & ASSOCIATES, LLC, McLean, VA.
For DISTRICT OF COLUMBIA, Defendant: Laura George, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL, Washington, DC.
BERYL A. HOWELL, United States District Judge.
Pending before the Court is the plaintiff Wilma Eley's Motion for Attorney Fees and Costs, ECF No. 26, under the attorneys' fees provision of the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1415(i)(3)(B)(i)(I). This motion was referred to a Magistrate Judge who issued a Report and Recommendation (" R& R" ), ECF No. 34, to which both the plaintiff and the defendant District of Columbia objected. See Pl.'s Objs. Rep. & Rec. of Mag. Judge Re. Attys. Fees (" Pl.'s Objs." ), ECF No. 35; Def.'s Objs. Mag.'s Aug. 29, 2013 Rep. & Rec. (" Def.'s Objs." ), ECF No. 36. While the R& R recommended an award of $39,055.03 in attorney's fees, the plaintiff claims that she is entitled to an award of $62,225.00, Pl.'s Mot. for Fees & Costs (" Pl.'s Mot." ) at 1, ECF No. 26, and the defendant argues that the award should be " reduced by 90%" to $2,900.62. Def.'s Objs. at 21. For the reasons set forth below, the plaintiff's objections are sustained, the defendant's objections are overruled, and the plaintiff's motion is granted.
The factual history of this case is set forth in greater detail in the Report and Recommendation regarding the underlying merits determination that was adopted by this Court. See Eley v. District of Columbia, No. 11-309, 2012 WL 3656471, at *1-3 (D.D.C. Aug. 24, 2012). Only the relevant facts and procedural history are summarized here.
A. The Underlying Merits Action
Prior to the 2010-2011 school year, the defendant " had not identified a location at which the student's IEP would be implemented." Admin. Record (" AR" ) at 7 ¶ 5, ECF No. 9-1. In the absence of such a placement at the beginning of the 2010-4011 school year, the plaintiff enrolled the child as a " non-attending" student at his local public school and subsequently enrolled him at a private school in the District of Columbia. Eley, 2012 WL 3656471, at *2. After school had begun in the Fall of 2010, the plaintiff filed an administrative due process complaint against the defendant, on September 13, 2010, " alleging that [the defendant] was twenty-three days late in preparing [the child's] new [Individualized Education Plan (" IEP" )]." Id. The defendant eventually produced a placement for the child in another private school and issued a " prior written notice" on October 7, 2010.
[WL] at *3; AR at 12 ¶ 16.
The Hearing Officer assigned to the case found that " the Plaintiff failed to establish that DCPS substantively violated the IDEA and, even if she had proved it, her unilateral removal of [her child] was unreasonable." Eley, 2012 WL 3656471, at *3. The plaintiff timely filed this federal suit " requesting that the Court: 1) find that [District of Columbia Public Schools (" DCPS" )] violated the IDEA and denied [the plaintiff's child] a free, appropriate public education (" FAPE" ); 2) grant her reimbursement for [the child's] tuition at [the private school]; [and] 3) order prospective placement for [the child] at [the private school]." R& R at 2.
This Court found that the defendant violated the IDEA by denying the plaintiff's child a FAPE, and that the plaintiff's actions in unilaterally placing her child in a private school were " not unreasonable." Eley, 2012 WL 3656471, at *8-10. The case was remanded to a Hearing Officer " for the purpose of determining whether the $2,850 sought by the plaintiff as reimbursement [for private school tuition] is appropriate and reasonable."
[WL] at *10. The only relief the plaintiff sought that was not granted by this Court was her request for " prospective placement" of the child at the private school for 2012-2013 school year since such placement " should not be addressed for the 2012-13 school year by this Court but by the [multi-disciplinary team]/IEP team." [WL] at *11. In view of the tardy actions by DCPS, which prompted the litigation in the first place, the Court cautioned that such a determination should " be done as soon as possible." Id. Consequently, the Court granted summary judgment to the plaintiff in part and denied it in part while denying summary judgment completely to the defendant.
[WL] at *1. On remand, the Hearing Officer ordered the defendant to " pay the
Plaintiff the full $2,850 she sought." R& R at 3.
B. The Attorney Fees Report and Recommendation
The plaintiff timely filed her Motion for Attorney Fees and Costs, which was referred to a Magistrate Judge for a Report and Recommendation. See Order Referring Motion for Attorney Fees and Costs to a Magistrate Judge at 1, ECF No. 32. The R& R, filed on August 29, 2013, made the following findings: (1) the plaintiff was a " prevailing party" within the meaning of the IDEA and that a reduction in the plaintiff's attorney's fees " on the basis of limited success" was unwarranted; and (2) " the majority of Plaintiffs' [sic] fees were reasonably incurred." R& R at 6.
The parties timely objected to the R& R. See LCvR 72.3(b). The plaintiff objects to the recommendations that (1) the plaintiff's counsel's rates be reduced to seventy-five percent of the standard rates provided under what is commonly called the " Laffey matrix; " (2) the plaintiff's counsel's time spent on the attorney's fees litigation be reduced by fifteen percent; and (3) the plaintiff's counsel's time of one-half hour spent in a " Resolution Session" be disallowed. See Pl.'s Objs. generally . The defendant objects to the R& R's findings that (1) the plaintiff prevailed in whole; and (2) the plaintiff is entitled to fees related to the Motion for Attorney Fees, described in the R& R as " Fees for Fees." See Def.'s Objs. generally . The objections have been fully briefed and are now ripe for consideration.
II. LEGAL STANDARD
Motions for attorneys' fees may be referred to a Magistrate Judge for a report and recommendation and any objections thereto are subject to de novo review by the district court. Fed.R.Civ.P. 54(d)(2)(D) (stating that a court " may refer a motion for attorney's fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter" ); see also David v. District of Columbia, 252 F.R.D. 56, 58 (D.D.C. 2008) (noting " the limited jurisdiction granted by Congress to a magistrate judge in Federal Rules 54(d)(2)(D) and 72(b) to issue a recommendation on a motion for attorneys' fees" ). Federal Rule of Civil Procedure 72(b) provides that " [t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to," and " may accept, reject, or modify the recommended disposition." Fed.R.Civ.P. 72(b)(3); see also LCvR 72.3(c) (" A district judge shall make a de novo determination of those portions of a magistrate judge's findings and recommendations to which objection is made" ).
The IDEA provides that " the court, in its discretion, may award reasonable attorneys' fees . . . (I) to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B)(i). Courts follow a two-pronged inquiry to determine attorneys' fees under the IDEA by, first, determining if the party seeking fees is a " prevailing party" and, then, determining what fees are " reasonable." See id.; see also B.R. ex rel. Rempson v. District of Columbia, 802 F.Supp.2d 153, 162-63 (D.D.C. 2011).
With respect to the first prong, the Supreme Court has " long held that the term 'prevailing party' in fee statutes is a 'term of art' that refers to the prevailing litigant," reflecting " the fact that statutes that award attorney's fees to a prevailing party are exceptions to the 'American Rule' that each litigant bear [his] own attorney's fees." Astrue v. Ratliff, 560 U.S. 586, 130 S.Ct. 2521, 2525, 177 L.Ed.2d 91 (2010) (internal quotations and citations omitted; brackets in original). The Court
has made clear that just because a party has " achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct," does not trigger " prevailing party" status. Buckhannon Bd. and Care Home, Inc. v. West Va. Dep't of Health and Human Resources, 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (" Buckhannon " ). Rather, the " touchstone of the prevailing party inquiry" is " 'the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.'" Sole v. Wyner, 551 U.S. 74, 82-83, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007) (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-793, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). In determining whether a party is the " prevailing party," the D.C. Circuit has interpreted Buckhannon as requiring a three part test: " (1) there must be a court-ordered change in the legal relationship of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief." Green Aviation Mgmt. Co., LLC v. FAA, 676 F.3d 200, 203, 400 U.S.App. D.C. 151 (D.C. Cir. 2012) (quoting Turner v. Nat'l Transp. Safety Bd., 608 F.3d 12, 15, 391 U.S.App. D.C. 90 (D.C. Cir. 2010) and District of Columbia v. Straus, 590 F.3d 898, 901, 389 U.S.App. D.C. 58 (D.C. Cir. 2010) (citing Thomas v. Nat'l Science Found., 330 F.3d 486, 492-93, 356 U.S.App. D.C. 222 (D.C. Cir. 2003))); see also District of Columbia v. Ijeabuonwu, 642 F.3d 1191, 1193-1194, 395 U.S.App. D.C. 370 (D.C. Cir. 2011). This " prevailing party" test applies generally to federal attorneys' fee-shifting statutes, including the IDEA. See Straus, 590 F.3d at 901 (applying three-part test to IDEA case).
Determining the reasonable attorneys' fees to which a prevailing party is entitled entails a three-part analysis: " (1) determination of the number of hours reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or " lodestar" ; and (3) the use of multipliers as merited." Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517, 273 U.S.App. D.C. 78 (D.C. Cir. 1988) (" SOCM " ) (citation omitted). The fee applicant bears the burden of justifying the attorneys' fees requested. See Covington v. District of Columbia, 57 F.3d 1101, 1107, 313 U.S.App. D.C. 16 (D.C. Cir. 1995) (" a fee applicant bears the burden of establishing an entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates" ) (citing Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Thus, in IDEA attorneys' fees cases, the party seeking fees must meet the Thomas test to show she is a prevailing party entitled to an award, and the SOCM test to show the reasonableness of the number of hours expended and the hourly billing rate. See Thomas, 330 F.3d at 492; In re North (Bush Fee Application), 59 F.3d 184, 189, 313 U.S.App. D.C. 188 (D.C Cir. 1995) (" [T]he fee petitioner bears the burden of establishing all elements of his entitlement." ).
To meet the latter burden, the plaintiff must submit evidence regarding " the attorneys' billing practices; the attorneys' skill, experience, and reputation; and the prevailing market rates in the relevant community." Covington, 57 F.3d at 1107. Upon submission of such information, a presumption applies that the number of hours billed and the hourly rates are reasonable. Jackson v. District of Columbia, 696 F.Supp.2d 97, 100-101 (D.D.C. 2010) (citing Blackman v. District of Columbia, 677 F.Supp.2d 169, 172 (D.D.C. 2010)). The burden then shifts to the defendant " to provide specific contrary evidence tending to show that a lower rate would be appropriate." Covington, 57 F.3d at 1109-10 (quoting Nat'l Ass'n of Concerned Veterans
v. Sec'y of Def., 675 F.2d 1319, 1326, 219 U.S.App. D.C. 94 (D.C. Cir. 1982) (" Concerned Veterans " )); see also Rooths v. District of Columbia, 802 F.Supp.2d 56, 59-60 (D.D.C. 2011); Jackson, 696 F.Supp.2d at 100-101.
Two portions of the fee award recommended in the R& R are not objected to by either party: first, that three hours of attorney travel time are properly reimbursable at half the reasonable rate and, second, that the plaintiff's attorney may rightfully invoice clerical and non-legal work performed by the attorney. See Pl.'s Objs. generally ; Def.'s Objs. generally . Therefore, the R& R's findings as to these aspects of the attorney's fee award are adopted. See R& R Parts II.C., II.E.
The parties object to four findings in the R& R: (1) whether the plaintiff's attorney's fee award should be reduced for " partial success; " (2) what hourly rate is appropriate for measuring the attorney's fees; (3) whether the awarding of " fees for fees" in IDEA litigation is appropriate and, if so, the reasonableness of the number of hours requested for this part of the award; and (4) whether the half hour the plaintiff's attorney spent in a purported Resolution Session on September 27, 2010 is properly included in an award for the attorney's fees. See Pl.'s Objs. generally ; Def.'s Objs. generally . Each disputed issue is discussed separately below.
A. The Plaintiff's Degree Of Success Warrants No Reduction In Fees
The IDEA allows the award of " reasonable attorneys' fees" to a " prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B)(i)(I). Here, it is undisputed that the plaintiff is " the parent of a child with a disability," but the defendant argues that the plaintiff barely qualifies as a prevailing party, stating that she " prevailed on zero claims at the administrative level, and only a fraction of her claims on appeal." Def.'s Objs. at 5. The defendant contends that the plaintiff's attorney's fee award must be reduced commensurate with her limited degree of success. Id. at 7. For the reasons discussed below, the Court disagrees with the defendant's fundamental premise regarding the plaintiff's success in this litigation.
At the outset, the law is well-settled that where a plaintiff has not prevailed on every claim asserted, " the degree of the plaintiff's success in relation to the other goals of the lawsuit is a factor critical to the determination of the size of the reasonable fee." Tex. State Teachers Ass'n, 489 U.S. at 790 (emphasis in original). Thus, " [a] plaintiff's overall success on the merits . . . must be considered in determining the reasonableness of a fee award." Judicial Watch, Inc. v. U.S. Dep't of Commerce, 470 F.3d 363, 369, 373 U.S.App. D.C. 424 (D.C. Cir. 2006) (citing Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). If a plaintiff " presents 'distinctly different claims for relief that are based on different facts and legal theories,' the limit on awards to 'prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). In evaluating the " degree" of success, " the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435. At the same time, the Supreme Court has cautioned that " [w]here a plaintiff has obtained excellent results, his attorney should recover
a fully compensatory fee; . . . the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Id.
In this action, the plaintiff sought relief in four substantive areas: a declaratory judgment that the defendant violated the FAPE; an order requiring the defendant to reimburse the plaintiff for " costs incurred providing for [the child's] education through [the private school[; ]" " an Order to fund [the child's] education at [the private school; ]" and attorneys' fees and costs. Compl. at 5, ECF No. 1. The plaintiff obtained the full relief she requested in three out of the four areas: namely, a declaration that the defendant violated the IDEA and denied her child a FAPE; an order for the defendant to reimburse the plaintiff for the private school costs; and the defendant concedes that at least some attorneys' fees are warranted. See Eley, 2012 WL 3656471, at *8-9 (holding defendant denied the plaintiff's child a FAPE); id. at 10 (ordering remand to hearing officer to determine if $2,850 in private school tuition payments made by the plaintiff were reasonable); Def.'s Objs. at 7 (arguing plaintiff's attorney's fees should be reduced, but not arguing such attorney's fees should be eliminated). The only claim on which the plaintiff did not prevail in full was her request for " an Order to fund [the child's] education at [the private school]." Compl. at 5.
Notwithstanding the plaintiff's success, the defendant contends that the plaintiff is not a prevailing party in whole because she failed to obtain " prospective permanent placement" at the private school where she was forced to enroll her child when the defendant violated the IDEA and failed to provide the child with an opportunity to obtain a FAPE. Def.'s Objs. at 6. The defendant posits that, because the plaintiff was reimbursed for private school tuition for one tenth of the school year, she was only ten percent successful and, consequently, her fee award should be reduced by ninety percent. Id. at 7. This conclusion is unsupported by the record.
Parts of the plaintiff's requested prospective relief, encompassing the 2010-2011 and 2011-2012 school years were moot because those years had already occurred by the time this action was resolved. See Eley, 2012 WL 3656471, at *11; R& R at 5 (" The Court only denied one of the Plaintiff's requests, and that was because it was rendered moot, not because it lacked merit." ). As for the child's placement for the 2012-2013 school year, the Court found that the " issue of prospective placement generally arises . . . only after the IEP has been properly completed and the parent wishes to remove the student from the IEP's recommended location." Eley, 2012 WL 3656471, at *11. Since " there [was] no indication in the record of the preparation of an IEP for the 2012-13 school year . . . [p]rospective placement" should be addressed by the school's team " as soon as possible." Id. The defendant's implication that the Court " denied Plaintiff's request for prospective and permanent placement," Def.'s Objs. at ...