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Reed v. District of Columbia

United States District Court, D. Columbia

June 2, 2015

ASHIMA REED, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant

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          For ASHIMA REED, CRYSTAL GREEN, MARTINA SMITH, SANDRA ADDISON, THERESA JAMES, TRACY HOLMAN, Plaintiffs: Douglas Tyrka, TYRKA & ASSOCIATES, LLC, McLean, VA.

         For DISTRICT OF COLUMBIA, Defendant: Tasha Monique Hardy, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC.

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         REPORT AND RECOMMENDATION

         ALAN KAY, UNITED STATES MAGISTRATE JUDGE.

         This case was referred to the undersigned for full case management on November 10, 2014, which includes a Report and Recommendation on any dispositive motion. (11/10/2014 Order of Referral [2].) Pending before the undersigned is Plaintiffs' Motion for Summary Judgment and Memorandum in Support thereof (collectively, the " Motion" ) [5]; Defendant's Opposition to Motion and Cross-Motion for Summary Judgment (" Cross-Motion" ) [8]; Plaintiffs' Reply and Opposition to the Cross-Motion (Pls.' Reply) [10]; and Defendant's Reply (" Def.'s Reply" ) [12]. Plaintiffs Ashima Reed (" Reed" ), Crystal Green (" Green" ), Martina Smith (" Smith" ), Sandra Addison (" Addison" ), Theresa James (" James" ) and Tracy Holman (" Holman" ) (collectively, the " Plaintiffs" ) are parents/guardians of students with disabilities who move this Court for an award of " reasonable attorneys' fees and costs incurred in the underlying [six] administrative proceedings, in the amount of $226,625.31[.]" (Motion at 1.) The administrative proceedings were brought pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400, et seq. (Motion at 2.)

         Defendant District of Columbia (" Defendant" or " the District" ) disputes the prevailing party status of three of the Plaintiffs (Cross-Motion at 14-16) and the hourly rate applied to Plaintiffs' claims for attorney's fees. (Cross-Motion at 2-14.) Defendant asserts that the fees for counsel's travel and certain costs claimed by Plaintiffs are excessive. (Cross-Motion at 16-22.) Defendant also challenges Plaintiffs' claims of entitlement to fees at current rates and additional payment for " delay." (Cross-Motion at 22-23.)

         I. BACKGROUND

         Plaintiffs Reed, Green, Smith, Addison, James and Holman are respectively the parents/guardians of S.R., C.G., L.J., I.M., E.J. and A.D., students with disabilities. (Motion, Appendix.) The IDEA guarantees

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all children with disabilities a free appropriate public education (" FAPE" ), 20 U.S.C. § 1400(d)(1)(A), and in general, FAPE " is available to all children with disabilities residing in the State between the ages of 3 and 21, . . . ." 20 U.S.C. § 1412(a)(1)(A). Defendant District of Columbia is a municipal corporation that operates the District of Columbia Public Schools System (" DCPS" ). (Complaint [1] ¶ 4.)[1] The District receives federal funds pursuant to the IDEA to ensure access to a Free and Appropriate Public Education (" FAPE" ) and it is obliged to comply with applicable federal regulations and statutes including the IDEA. See 20 U.S.C. § 1411. For ease of reference, each student's background information will be addressed separately within the undersigned's analysis of prevailing party status.

         II. LEGAL STANDARD

         A. Summary Judgment on an IDEA Claim

         A party moving for summary judgment on legal fees must demonstrate prevailing party status and the reasonableness of the fees requested in terms of hours spent and hourly rate.[2] Pursuant to 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56). " A fact is material if it 'might affect the outcome of the suit under the governing law' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for a nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692, 383 U.S.App.D.C. 74 (D.C. Cir. 2008) (quoting Anderson, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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. The non-moving party cannot 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, 334 U.S.App.D.C. 92 (D.C. Cir. 1999).

         1. Prevailing Party Status

         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). The court must initially determine whether the party seeking attorney's fees is the prevailing party. Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C. 2010). See District of Columbia v. West, 699 F.Supp.2d 273, 278 (D.D.C. 2010) (In considering a claim for IDEA attorney's fees, it is the court " not the hearing officer in the administrative

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proceeding, which determines prevailing party status. . . ." ) (quoting D.C. v. Straus, 607 F.Supp.2d 180, 183 (D.D.C. 2009)).

         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 bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)). The Supreme Court has indicated that the term " prevailing party" only includes plaintiffs who " 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, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (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. Id. at 605. The Supreme Court instead determined that a prevailing party must obtain a " material alteration 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, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). The standards in Buckhannon apply to administrative hearings under the IDEA 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).

         " [T]he 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." District of Columbia v. Straus, 590 F.3d 898, 901, 389 U.S.App.D.C. 58 (D.C. Cir. 2010) (internal quotations and citations omitted). In Straus, the Court of Appeals considered the following three factors to determine prevailing party status: 1) alteration of the legal relationship between the parties; 2) a favorable judgment for the party requesting fees; and 3) a judicial pronouncement accompanied by judicial relief. Id. at 901.

         2. Establishing a Reasonable Fee

         The plaintiff has the burden of establishing the reasonableness of any fee requests. See In re North, 59 F.3d 184, 189, 313 U.S.App.D.C. 188 (D.C. Cir. 1995). See also 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 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 v. Roher, 954 F.Supp. 359, 364 (D.D.C. 1997) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)); see also Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

         The IDEA 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: (1) an attorney's usual billing practices; (2) counsel's skill, experience and reputation; (3) the prevailing market rates in the community. Covington, 57 F.3d at 1107 (citations omitted.) 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

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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. Additionally, 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, 301 U.S.App.D.C. 374 (D.C. Cir. 1993).

         III. ANALYSIS

         A. Plaintiff's Prevailing Party Status

         1. S.R.

         On May 24, 2013, Plaintiff Reed, parent of minor student S.R., filed a Due Process Complaint alleging that Defendant denied S.R. a free appropriate public education (" FAPE" ). (S.R Hearing Officer Determination (" HOD" ) [5-1] at 1.)[3] The issues considered by the Hearing Officer were whether Defendant failed to identify, locate and evaluate the student for the periods May 24, 2011- June 2011, January 2012- June 2012 or during the 2012-2013 school year, and whether Defendant failed to timely evaluate the student upon the parent's written request on January 7, 2013? (S.R. HOD [5-1] at 4.) Plaintiff requested that the District fund independent comprehensive psychological, occupational therapy, and functional behavioral assessments and any other recommended evaluations for S.R. (S.R. HOD [5-1] at 1.) Plaintiff further requested that Defendant convene an individualized education program (" IEP" ) Team meeting within fifteen days of receiving the independent evaluations, to review such evaluations and determine the student's eligibility for special education services and develop an IEP and behavior intervention plan (" BIP" ). ( Id. )

         A due process hearing was held on July 24, 2013. (S.R. HOD [5-1] at 3.) On August 2, 2013, the Hearing Officer ordered Defendant to fund independent psychological and functional behavioral assessments and after such assessments were completed, to convene a multidisciplinary team (" MDT" ) meeting to review the results and determine if S.R. is eligible for special education and if so, to develop an IEP. (S.R. HOD [5-1] at 11.) Defendant does not contest Plaintiff Reed's prevailing party status.

         2. C.G.

         C.G. is an adult student who has been determined to be eligible for special education and related services. (C.G. HOD [5-1] at 17.) Plaintiff Green, parent of C.G., filed a due process complaint in February 2013, and a due process hearing was held on May 13, 2013. (C.G. HOD [5-1] at 17-18.) The issues raised by Plaintiff were the District's alleged: 1. failure to re-evaluate; 2. failure to develop an appropriate IEP (11/15/2012); 3. failure to implement IEPs (12/14/2011 & 11/15/2012); and 4. failure to provide an appropriate placement since December, 2011. (C.G. HOD [5-1] at 20.) The Hearing Officer noted that issue number one above was fully resolved prior to the hearing and withdrawn at the hearing and further, that Plaintiff met her burden of proof on issues nos. 2, 3 and 4. (C.G. HOD [5-1] at 29.) Defendant does not contest Plaintiff Green's status as a prevailing party.

         3. L.J.

         Plaintiff Smith is the legal guardian of L.J., a minor student who is eligible for

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services as a student with a specific learning disability. (L.J. HOD [5-1] at 39.) L.J.'s due process complaint was filed on or about June 25, 2013 and a hearing was held on September 3, 2013. (L.J. HOD [5-1] at 39, 41.) The complaint alleged that Defendant failed to evaluate L.J., at Plaintiff's request, while the student was attending School B during the 2011-2012 School Year (" SY" ). (L.J. HOD [5-1] at 41.) The issues posed by the Hearing Officer were " [d]id the [Plaintiff] request that [Defendant] evaluate the Student numerous times between summer and winter, 2011-2012 [and] [i]f so, did [Defendant] fail to conduct an evaluation of the Student [and] if so, did [Defendant] deny the Student a FAPE?" (L.J. HOD [5-1] at 42.) The Hearing Officer found that L.J. was denied a FAPE through Defendant's failure to evaluate him from August 2011 through January 2012 despite the guardian's requests. (L.J. HOD [5-1] at 62.) The Hearing Officer awarded L.J. 4 hours of tutoring each week for a six month period during SY 2013-2014. ( Id. ) Defendant does not contest that Plaintiff Smith is a prevailing party.

         4. I.M.

         Plaintiff Addison is the legal guardian of I.M., a minor student who is eligible for services as a student with a specific learning disability. (I.M. HOD [5-1] at 67.) Plaintiff Addison filed a due process complaint on February 25, 2013 alleging that Defendant failed to include the Plaintiff in the November 14, 2012 IEP meeting and further that Defendant failed to conduct a formal assessment of I.M.'s social/emotional functioning and her occupational therapy needs when I.M. was first determined to be eligible. (I.M. HOD [5-1] at 67.) Plaintiff also alleged that I.M.'s IEP and placement (in a combination general and special education setting) were inappropriate insofar as I.M. should have been in a " full-time" special education placement. ( Id. ) Plaintiff sought placement in a private special education school, compensatory education and funding for various evaluations. ( Id. )

         The due process hearing was held on April 29 and April 30, 2013 (I.M. HOD [5-1] at 66.) The Hearing Officer found that Plaintiff sustained her burden of proof on the issue of denial of FAPE based on Defendant's failure to include the Plaintiff in the November 14, 2012 IEP meeting and failure to provide an appropriate IEP with regard to the November 14, 2012 IEP. (I.M. HOD [5-1] at 75.) Plaintiff did not sustain her burden of proof regarding allegations that Defendant denied I.M. a FAPE by: 1) failing to re-evaluate the student following two verbal requests by Plaintiff; 2) failing to fully evaluate the student; 3) failing to provide an appropriate IEP on March 31, 2011, September 27, 2011, and December 15, 2011; or 4) failing to implement the IEP during the time the student attended School A. (I.M. HOD [5-1] at 75-76, 78-79.) The Hearing Officer did not award the Plaintiff's proposed compensatory education but did award some compensatory education resulting from the student's inappropriate IEP and educational placement from November 14, 2012. (I.M. HOD [5-1] at 81-82.) The Hearing Officer also amended the student's IEP to provide for 25 hours of specialized education per week to be provided outside general education and ordered Defendant to conduct certain evaluations of the student since Plaintiff made a request for re-evaluation within the context of the due process complaint. (I.M. HOD [5-1] at 76, 82.)

         Upon review of the Hearing Officer's Decision, it is evident that because Plaintiff accomplished some of the relief she sought at the administrative level; i.e., funding of evaluations, amendment of the IEP and an award of compensatory education,

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Plaintiff Addison should thus be considered a prevailing party entitled to reasonable attorney's fees. See Wood v. District of Columbia, 864 F.Supp.2d 82, 89 (D.D.C. 2012) (finding that plaintiff was a prevailing party because she accomplished " her primary objective at the administrative hearing" ). Plaintiff did not however prevail on all the claims that she pursued. See generally I.M.'s HOD. A court can " adjust" the fee award based on the " results obtained" and consideration of such results is " particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief." Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see also Tex. State Teachers Ass'n. v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). " A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at 439. Because there were issues in this case on which Plaintiff Addison clearly did not prevail, the undersigned recommends that Plaintiff Addison's fees be reduced overall by fifty percent (50%) to reflect her status as a partially prevailing party.[4]

         5. E.J.

         On June 18, 2013, Plaintiff James, parent of minor student E.J., filed a due process complaint, which resulted in a due process hearing held on August 20 and 23, 2013. (E.J. HOD [5-1] at 87, 89.) The issues presented were whether Defendant denied E.J. a FAPE by :1) failing to provide an appropriate placement from December 13, 2011 through May 10, 2012 and providing no placement from March 31, 2012 through May 10, 2012; 2) failing to provide an appropriate placement from December 6, 2012 through February 22, 2013; 3) failing to identify an appropriate placement for the student at the June 13, 2013 MDT meeting ; and 4) impeding the parent's participation in the decision-making process with the result that the student was placed at the Devereux Florida school. (E.J. HOD [5-1] at 89.) Plaintiff requested maintenance of the student's placement at New Hope Treatment Center; an IEP meeting to review and ...


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