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Merrick v. District of Columbia

United States District Court, D. Columbia

September 29, 2015


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[Copyrighted Material Omitted]

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          For TAMECKA MERRICK, Plaintiff: Charles Anthony Moran, LEAD ATTORNEY, MORAN & ASSOCIATES, Washington, DC.


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         AMY BERMAN JACKSON, United States District Judge.

         Plaintiff Tamecka Merrick brought this action pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq., seeking attorneys' fees and costs totaling $136,044.18 for work completed in support of a successful IDEA administrative action against the District of Columbia Public Schools (" DCPS" ) on behalf of her minor child. Compl. [Dkt. # 1]. Plaintiff moved for summary judgment. Pl.'s Mot. for Summ. J. [Dkt. # 10] (" Pl.'s Mot." ); Mem. of P. & A. in Supp. of Pl.'s Mot. [Dkt. # 10] (" Pl.'s Mem." ). The Court referred the matter to a Magistrate Judge, who issued a Report and Recommendation suggesting that the Court award plaintiff $64,127.43 in attorneys' fees and costs. R. & R. [Dkt. # 14] at 20-21. Plaintiff filed timely written objections to the Report. Pl.'s Objs. to R. & R. [Dkt. # 15] (" Pl.'s Objs." ). Defendant responded to plaintiff's objections, but did not object to any portion of the report, Def.'s Opp. to Pl.'s Objs. [Dkt. # 16] (" Def.'s Resp." ), and plaintiff replied. Pl.'s Reply to Def.'s Resp. [Dkt. # 17] (" Pl.'s Reply" ). The parties also filed supplemental memoranda in the wake of the D.C. Circuit's recent opinion in Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015). See Pl.'s Mot. for Leave to Suppl. R. [Dkt. # 18] (" Pl.'s Supp. Mot." ); Def.'s Resp. to Pl.'s Supp. Mot. [Dkt. # 19] (" Def.'s Supp. Resp." ).

         After a review of the Report, the parties' filings, the Eley decision, and the record in this case, the Court will adopt the Magistrate Judge's recommendations in all but three respects. First, the Court finds that plaintiff's unsuccessful claims at the administrative level do not form the

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basis for a 10% fee reduction. Second, the Court will not deduct 3.9 hours of work performed by counsel in connection with a meeting held in February 2014. Finally, the Court will not compensate plaintiff's attorney at a rate of $382.50 per hour, a number that the Magistrate Judge reached by reducing the applicable U.S. Attorney's Office (" USAO" ) Laffey Matrix[1] rate of $510.00 per hour by 25%. Instead, the Court finds that plaintiff has carried her burden to show that $510.00 per hour more accurately reflects the reasonable hourly rate for her counsel's time. The Court will therefore grant in part and deny in part plaintiff's motion for summary judgment, and it will enter judgment in the amount of $107,555.43 in favor of plaintiff.


         Plaintiff's seventeen-year-old son (" R.W." ) is deaf and has been diagnosed with numerous conditions, including bipolar disorder and oppositional-defiant disorder. Hearing Officer Determination [Dkt. # 10-1] (" HOD" ) ¶ ¶ 5, 9; Pl.'s Mem. at 1. During the 2011-2012 school year, R.W. attended DCPS Wilson High School (" Wilson" ), which had a small program for deaf and hard-of-hearing students. HOD ¶ 16; Pl.'s Mem. at 2. Although Wilson provided R.W. with an interpreter for his mainstream classes, R.W. struggled academically. HOD ¶ 16. R.W. became frustrated by a constant need to look back and forth between the interpreter, the teacher, and the board. Id. This challenge, coupled with R.W.'s inability to communicate with other students, caused his anger to surface. Id. At the end of January 2012, R.W.'s behavior escalated to the point that he required emergency psychiatric hospitalization, and in February, R.W.'s insurance carrier moved him to an out-of-state treatment center, where he remained until November 2012. Id. ¶ 17.

         Upon release from the treatment center, R.W. entered DCPS Anacostia High School (" Anacostia" ). HOD ¶ 18; Pl.'s Mem. at 2. R.W. was the first deaf student to attend Anacostia, and the school was unable to appropriately accommodate him. HOD ¶ 18. Upon DCPS's recommendation, R.W. returned to Wilson, but R.W. continued to struggle. Id. ¶ ¶ 20-21. In June 2013, R.W. was detained on juvenile charges. Id. ¶ 22.

         Plaintiff filed an administrative complaint with the assistance of counsel on August 2, 2013. See HOD at 1. She was represented by Pierre Bergeron, a solo practitioner, who was occasionally assisted by Pamela Roth, another solo practitioner. See Services & Expenses, Ex. 5 to Pl.'s Mot. [Dkt. # 10-5] (" Services & Expenses" ). Plaintiff alleged that DCPS had denied R.W.'s right to a free appropriate public education (" FAPE" ), see HOD at 1, and she advanced four specific arguments:

1. DCPS failed to " timely and accurately provide evaluations/ reevaluations in all areas of suspected disabilities." Id.
2. DCPS failed to " timely identify the seriousness of the emotional and deaf disabilities and other health impairment . . . with the result that [R.W.] deteriorated and continued to be repeatedly sent home early." Id.

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3. DCPS failed to " provide and implement an appropriate individualized education plan." Id.
4. DCPS failed to " provide an appropriate placement and location of services" for R.W. Id.

         Plaintiff sought two forms of relief: " (i) Placement in a full-time residential treatment center," and " (ii) compensatory education." Id. at 2.

         On September 6, 2013, before the administrative hearing had occurred, DCPS convened a meeting and determined that R.W.'s individualized education plan (" IEP" ) should be updated to provide for residential placement. HOD ¶ 7. But by the date of the administrative hearing, October 1, 2013, DCPS still had not found a residential facility for R.W., see id. at 1, ¶ 8, and the child remained in juvenile detention. Id. at 1-2.

         On October 16, 2013, the Hearing Officer granted plaintiff all the relief she requested. See HOD at 11-12. The Hearing Officer ordered DCPS to convene an IEP meeting within ten days to select a residential placement for R.W., and further ordered DCPS to place R.W. at that facility for the remainder of the 2013-2014 school year. Id. ¶ ¶ 29-30. The Hearing Officer also granted plaintiff's request for compensatory education. Id. at 11-12. Pursuant to the Hearing Officer's order, R.W. was placed in a residential facility in December 2013. R. & R. at 11.

         Although plaintiff received the relief she sought, the Hearing Officer did not accept all four of her arguments. HOD at 7-12. As to plaintiff's first claim, the Hearing Officer found that plaintiff did not meet her burden to prove that DCPS failed to timely " evaluate/reevaluate" her son. Id. at 7-8. The Hearing Officer further found that plaintiff's second argument -- that DCPS failed to identify the seriousness of R.W.'s disabilities -- was not a separate claim, but rather should be considered in the context of plaintiff's third and fourth claims. Id. at 8. As to the third claim, the Hearing Officer found that plaintiff had proven that DCPS denied R.W. a FAPE by " failing to provide him with an appropriate IEP on April 10, 2013," but that she did not " meet [her] burden of proof on the implementation aspect of this claim." Id. at 9-10. And as to the fourth claim, the Hearing Officer concluded that plaintiff prevailed on the issue of denial of a FAPE regarding placement and location of services only insofar as Wilson and Anacostia were not appropriate schools for R.W.[2] Id. at 10-11.

         Plaintiff brought an action in this Court seeking an award of $136,044.18 for 269.2 hours of work plus costs.[3] See R. & R. at 1, 20; Pl.'s Mem. at 12; Services & Expenses at 1. Plaintiff filed a motion for summary judgment, and the Court referred the matter to a Magistrate Judge, who issued a Report and Recommendation on March 23, 2015. R. & R. The Magistrate Judge recommended reducing plaintiff's award to $64,037.25 in fees and $90.18 in costs on several grounds. Id. at 20-21.

         First, the Magistrate Judge recommended that plaintiff not be reimbursed

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for 3.9 hours billed by counsel related to an IEP meeting in February of 2014. Id. at 11-12. The Magistrate Judge then divided the remaining 265.3 hours into three categories -- legal work, clerical work, and travel time -- and recommended compensating each at a different rate. Id. at 20-21. For the legal work, the Magistrate Judge recommended a rate of $382.50 per hour, or 75% of the applicable Laffey Matrix rate of $510.00, to account for what he viewed as the reduced complexity of the case. Id. at 18. In addition, the Magistrate Judge found that plaintiff's counsel had billed for six hours of travel, and recommended awarding fees for that time at half of 75% of the Laffey rate, or $191.25 per hour. Id. at 19. Finally, the Magistrate Judge found that counsel billed 54.6 hours for clerical and administrative tasks, for which he recommended reimbursement at 75% of the Laffey rate for a paralegal, or $108.75 per hour. Id. at 20.

         The Magistrate Judge further recommended a 10% reduction to account for plaintiff's failure to succeed on every claim she advanced at the administrative hearing. R. & R. at 10. In addition, the Magistrate Judge recommended a reduction of 15% for " unnecessary" work, including the preparation of an amended complaint; five motions to amend a single filing; the filing of a motion to expedite the hearing, followed by a motion to continue, followed by a second motion to expedite; and " several other amendments to existing documents." Id. at 13-14. All of these reductions brought the total fee award to $64,037.25. Id. at 21.

         With respect to costs, the Magistrate Judge recommended reducing the reimbursement rate for certain copies from $0.25 to $0.15, resulting in a cost award of $90.18. R. & R. at 20.

         On April 6, 2015, plaintiff filed objections to all of the Magistrate Judge's recommendations except the 50% reduction of the attorneys' fee rate for travel time and the $90.18 award for costs. Pl.'s Objs. Defendant did not file objections of its own, and it asks the Court to adopt the Magistrate Judge's Report in its entirety. Def.'s Resp.

         On July 10, 2015, the D.C. Circuit issued an opinion in Eley v. District of Columbia that addressed the evidentiary showing a plaintiff must make in order to establish the amount of attorney's fees to which she is entitled. See 793 F.3d at 104-05; see also 20 U.S.C. ยง 1415(i)(3)(C) (entitling a prevailing parent to attorneys' fees " based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished" ). In that decision, the Court of Appeals underscored the principle that a fee applicant bears the burden of producing satisfactory evidence that the ...

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