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Damarcus S. v. District of Columbia

United States District Court, District of Columbia

August 30, 2016

DAMARCUS S., by and through his Parent, K.S., Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE United States District Judge.

         Plaintiffs Damarcus S. and his mother, K.S., have moved for attorney's fees and costs pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., which grants the Court discretion to award reasonable fees to a prevailing party. See Id. § 1415(i)(3)(B). (Pl.'s Mot. for Attorneys' Fees and Costs [ECF No. 25] (“Pls.' Mot.”).) The District of Columbia (the “District”) does not dispute that plaintiffs are entitled to fees, but it argues that plaintiffs' request of $212, 081.51 in fees and $4, 097.60 in costs is unreasonable and should be denied in part. (See Def.'s Opp'n Br. [ECF No. 27] at 3.) The Court agrees that plaintiffs are not entitled to the full amount requested, though they are entitled to more than the District proposes to pay. Therefore, plaintiffs' motion will be granted in part and denied in part.

         BACKGROUND

         The background of this case has been laid out in great detail in the Court's previous Memorandum Opinion. See Damarcus S. v. Dist. of Columbia, 2016 WL 2993158, at *1-*2 (D.D.C. May 23, 2016). As is relevant here, plaintiffs filed an administrative complaint with the District in December 2014, alleging that numerous deficiencies in the District's educational plans for Damarcus denied him a Free Appropriate Public Education (“FAPE”), to which he is entitled under IDEA.[1] Id. at *2. After an administrative Due Process Hearing in March 2015, the Hearing Officer determined that plaintiffs were time-barred from pursuing any claims involving conduct prior to December 16, 2012, and rejected all but one of plaintiffs' remaining claims on the merits. Id. As a result of the District's failure to conduct a behavioral assessment and put in place an intervention plan for Damarcus in 2013 and 2014, plaintiffs were awarded (1) reimbursement for an independent behavioral evaluation of Damarcus, and (2) fifty hours of behavioral support services. Id. But without explanation, the Hearing Officer ruled that those behavioral-support hours would be forfeited if plaintiffs did not use them before June 30, 2016. Id.

         Plaintiffs filed suit in this Court to challenge the Hearing Officer's adverse determinations, and the parties then cross-moved for summary judgment. The Court found for plaintiffs on many claims: (1) that the Hearing Officer erred in her blanket dismissal of all claims arising out of pre-December 2012 conduct, rather than conducting an individualized analysis of when plaintiffs knew or should have known about each claim, id. at *6; (2) that the District denied Damarcus a FAPE in 2013 and 2014 by dramatically cutting his speech-language services and failing to adjust his Individualized Education Program (“IEP”) in response to his demonstrated lack of progress, id. at *12; (3) that the Hearing Officer's compensatory award was improperly limited as to both subject (behavioral support services) and time (the June 2016 forfeiture provision), id. at *14; (4) that the compensatory award of fifty hours was insufficient by failing to reflect the pervasive effect of Damarcus's behavior on all aspects of his education, id. at *14-*15; and (5) that plaintiffs were entitled to reimbursement for an independent neuropsychological evaluation of Damarcus, id. at *15. In light of deficiencies in the record, the Court remanded to the Hearing Officer to allow the parties to more fully brief the issue of an appropriate award of compensatory education. Id. at *12, *15.

         On the other hand, the Court rejected plaintiffs' remaining claims: (1) that Damarcus's 2013 and 2014 IEPs were necessarily deficient because they relied on deficient neuropsychological and speech-language evaluations, id. at *8; (2) that Damarcus was denied a FAPE because his IEPs failed to set out measureable baselines, failed to specify that he would receive research-based, peer-reviewed instruction, and set inappropriately low benchmarks, id. at *9-*10; (3) that the District failed to place Damarcus in the least restrictive environment, id. at *12; (4) that the District inappropriately implemented Damarcus's IEPs, id. at *13; (5) that the District's treatment of Damarcus violated Section 504 of the Rehabilitation Act, id. at *16; and (6) that the District should be required to immediately develop an appropriate IEP, id. at *17.

         ANALYSIS

         The District does not dispute plaintiffs' entitlement to attorney's fees, given the many claims on which plaintiffs have prevailed. However, the District argues that the award requested by plaintiffs is unreasonable on several grounds, which the Court will now turn to.

         I. UNREASONABLE BILLING RATES

         The District first argues that the hourly rates sought by plaintiffs' attorneys and paralegals are unreasonable. (Def.'s Opp'n Br. at 4-11.) In determining a reasonable fee award, the Court must ensure that it is “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). Plaintiffs bear the burden on this issue, as with all other aspects of their fee request. See Covington v. Dist. 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[.]”).

         In addition to offering their own attorneys' affidavits, fee applicants may also “submit attorneys' fee matrices as one type of evidence that ‘provide[s] a useful starting point' in calculating the prevailing market rate.” Eley v. Dist. of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (quoting Covington, 57 F.3d at 1109). These matrices set out the hourly fees charged by attorneys at various levels of experience in a particular community for the same type of work, which offer a “somewhat crude” approximation of prevailing market rates. Snead v. Dist. of Columbia, 139 F.Supp.3d 375, 378 (D.D.C. 2015) (quoting Eley, 793 F.3d at 101). The most commonly used fee matrix was the “Laffey Matrix, ” which was compiled by the District United States Attorney's Office (“USAO”) and updated annually to adjust for inflation. Eley, 793 F.3d at 100-01. However, beginning on June 1, 2015, the USAO discontinued the Laffey Matrix in favor of a matrix that uses a new methodology, which the Court will refer to as the “USAO Matrix.” See USAO Attorney's Fees Matrix - 2015 - 2016, https://www.justice.gov/usao-dc/file/796471/download.[2]

         Here, plaintiffs' counsel submit an affidavit from Dennis C. McAndrews, the Managing Partner at their firm, which attests that these “hourly rates for attorneys of comparable experience and skill in this area are at least equal to, and frequently exceed, the hourly rates” they have requested. (Ex. B to Pls.' Mot. [ECF No. 25-3] ¶ 17.) They also submit affidavits from local attorneys who did not work on this case, stating that the rates charged by plaintiffs' attorneys are consistent with those charged by their firms and other area firms, including in IDEA cases. (Ex. 1 to Pls.' Reply Br. [ECF No. 29-1] ¶¶ 13, 22; Ex. 2 to Pls.' Reply Br. [ECF No. 29-2] ¶ 10.) Finally, they submit the 2015-16 USAO Matrix, which reflects rates charged in District of Columbia courts in civil cases where a fee-shifting statute permits the prevailing party to recover “reasonable” attorney's fees.[3] (Ex. C. to Pls.' Mot. at 1 & n.1.) The attorney rates listed in the 2015-16 USAO Matrix are uniformly higher than those sought by plaintiffs. (Compare Ex. A to Pls.' Mot. with Ex. C to Pl.'s Mot. at 1.)

         The District argues that the rates in the Laffey or USAO Matrices should not be applied here, because those matrices establish presumptive rates for more complex federal litigation than typical IDEA administrative proceedings. (Def.'s Opp'n Br. at 6.) Instead, it argues that plaintiffs should receive 75% of Laffey or USAO rates because “the overwhelming majority of cases apply[] [such] rates to similar [IDEA] litigation, especially in cases since Eley.” (Id. at 7 & n.4, 9.) Plaintiffs respond by citing a slew of post-Eley cases in which full Laffey or USAO rates were awarded in IDEA cases. (See Pls.' Reply Br. at 6 n.1.)

         At the outset, it is worth repeating that plaintiffs do not seek full USAO rates, or even a uniform percentage of them. Instead, they seek the rates customarily charged by their firm (see Ex. B to Pls.' Mot. ¶ 4), which vary by attorney and are uniformly lower than the USAO Matrix rates. For instance, Dennis McAndrews' rate of $450 is only 79% of what an attorney of his experience level (38 years) would receive under the current USAO Matrix. In fact, two junior attorneys who worked on the case are billed at rates less than 75% of the current USAO rate. (See Id. ¶ 11; Ex. A to Pls.' Mot. (billing out fourth-year attorneys at $230/hour and $240/hour, which is 71% and 74% of the USAO rates, respectively). The highest attorney rates sought by plaintiffs in relation to the current USAO Matrix are only 85% of those rates. (See Ex. A to Pls.' Mot. (billing out Attorney CEM (4 years) at $275/hour, where full USAO rate is $325/hour). Thus, the District's argument about the applicability of full Laffey or USAO rates in IDEA litigation is off the mark-the relevant question is whether plaintiffs have shouldered their burden to show that the rates they actually seek are reasonable.

         Moreover, plaintiffs are correct that many of the cases cited by the District involved routine IDEA matters, and thus, a 75% Laffey rate was deemed appropriate in that context. See, e.g., Snead, 139 F.Supp.3d at 381 (involving an “unremarkable IDEA administrative representation”); Joaquin v. Friendship Pub. Charter Sch., 2016 WL 3034151, at *14 (D.D.C. May 27, 2016) (case was not “unusually complex”); Platt v. Dist. of Columbia, 2016 WL 912171, at *11 (D.D.C. Mar. 7, 2016) (quoting Blackman v. Dist. Of Columbia, 56 F.Supp.3d 19, 29 (D.D.C. 2014)) (case involved “no ‘novel questions of law, ' burdensome discovery issues, or other unusual complexities”); McAllister v. Dist. of Columbia, 21 F.Supp.3d 94, 109 (D.D.C. 2014) (finding lack of complexity in cases where, inter alia, school district either defaulted or failed to contest issues, no administrative hearing was conducted due to settlement, or hearing had limited number of witnesses).

         Here, in contrast, the parties engaged in a two-day hearing with ten witnesses and sixty-eight exhibits, resulting in the creation of a 1, 300 page administrative record. (See Pls.' Reply Br. at 11; Administrative Record [ECF Nos. 12-13].) The case involved a challenging question of statutory interpretation that was a matter of first impression in this district, which arose from an apparent drafting error in the 2004 amendment of the IDEA. See Damarcus S., 2016 WL 2993158, at *4; see also Blackman, 56 F.Supp.3d at 25 (“novel or complicated questions of law” indicate complexity). The District discounts that complexity when it chides plaintiffs for “[m]erely summarizing the reasoning of” G.L. v. Ligonier Valley School District Authority, 802 F.3d 601 (3d Cir. 2015), which this Court ultimately adopted. (See Def.'s Opp'n Br. at 8.) But the statutory issue was apparently complex enough that both parties here actually reversed the positions they took below. (See Def.'s Cross-Mot. for Summ. J. [ECF No. 16] at 13 n.6.) Furthermore, the issue of how to properly evaluate Damarcus's disability-whether to use a Full-Scale IQ or General Ability Index-was complicated, something the Court's Memorandum Opinion expressly noted. See Damarcus S., 2016 WL 2993158, at *8 (“When considering an issue of such complexity . . . .”). Put simply, this was not a run-of-the-mill IDEA proceeding, and therefore, the Court finds that rates falling between 75% and 100% of Laffey / USAO Matrix rates are reasonable.

         This raises the question of which rates should serve as the appropriate point of comparison: the current USAO rates, or the rates that applied in the years that the work was actually performed. As noted, plaintiffs' requested rates range from 71% to 85% of the current USAO rates; however, when using the lower 2013-14 Laffey rates[4] as a point of comparison, those relative percentages rise to 84% to 110%. (See Ex. A to Pls.' Mot.; Ex. B to Pls.' Mot. (billing out Attorney MEG (25 years) at $430/hour, where full Laffey rate was $510/ hour; billing out Attorney CEM (2 years) at $275/hour, where full Laffey rate was $250/hour). In other words, plaintiffs seek rates for previous years' work that occasionally exceed the Laffey rates that applied in those years, even though they all fall below the USAO Matrix rates.

         The District argues that historical Laffey rates should apply (Def.'s Opp'n Br. at 10-11), and plaintiffs respond that the D.C. Circuit has sanctioned the application of current rates, as a means of accounting for the delay in receiving payment, (Pls.' Reply Br. at 14 (citing West v. Potter, 717 F.3d 1030, 1034 (D.C. Cir. 2013).) West was a Title VII case, a fact that was expressly relevant to the result in that case. See 717 F.3d at 1034. West also notes that there is a “strong presumption” in favor of the application of historical rates. Id.; see also Jackson-Johnson v. Dist. of Columbia, 2016 WL 1267153, at *3 (D.D.C. Mar. 31, 2016) (applying historical rates); Reed v. Dist. of Columbia, 134 F.Supp.3d 122, 137 (D.D.C. 2015) (same). There was no unusual delay in this three-year IDEA case, no dilatory conduct on the part of the District, and as noted, the rates requested by plaintiffs are more reasonable in comparison to recent years' Matrix rates than to those prior years' rates. See West, 717 F.3d at 240 (appropriate to apply historical rates if delay in payment was brief, or if rates sought by plaintiffs incorporate compensation for delayed payment). The Court thus deems it appropriate to compare plaintiffs' requested rates to those in effect at the time the work was performed. As discussed, plaintiffs are entitled to attorneys' rates that fall between 75%-100% of Laffey / USAO Matrix ...


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