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Kelsey v. District of Columbia

United States District Court, District of Columbia

December 1, 2016

AMBER KELSEY, Plaintiff,


          Beryl A. Howell Chief Judge

         The plaintiff, Amber Kelsey, brings this action under the Individuals with Disabilities Education Act, as amended, 20 U.S.C. §§ 1400 et seq. ("IDEA"), against the District of Columbia. See Compl. at 1, ECF No. 1. Pending before the Court is the plaintiff's Motion for Attorney's Fees ("Pl.'s Mot."), ECF No. 48. The Magistrate Judge to whom this motion was randomly referred submitted a report recommending that the motion be granted in part and denied in part, see Report and Recommendation, Oct. 7, 2016, 2015 ("R&R"), ECF No. 53, and the plaintiff has timely filed a number of objections to that recommendation, see Pl.'s Objections to the Report and Recommendation of the Magistrate Judge ("Pl.'s Objs."), ECF No. 54. For the reasons explained below, the plaintiff's objections are sustained in part and overruled in part. Accordingly, the plaintiff's Motion for Attorney's Fees is granted in part and denied in part.

         I. BACKGROUND

         The background of the present dispute has been described in the R&R and by this Court in its two prior decisions involving this plaintiff. See Kelsey v. District of Columbia, 85 F.Supp.3d 327, 330-32 (D.D.C. 2015); Clay v. District of Columbia, Mem. & Order, No. 09-1612 (D.D.C. April 24, 2013), ECF No. 59. In Clay, Ms Court ruled that the plaintiff "was denied a [Free Appropriate Public Education ("FAPE")] by the defendant during the period between March 19, 2007 and June 2008 because of the denial of speech therapy." Clay, Mem. & Order at 32. Following that ruling, the case was remanded to a Hearing Officer to conduct "fact-finding to establish the amount of speech and language therapy or other specialized instruction [the plaintiff] was deprived in the period between March 19, 2007 and June 2008, and determine the level of compensatory education services [she] requires to place her in the same position she would have been but for DCPS' IDEA violations during the period at issue." Id. at 33. At the conclusion of that hearing, the plaintiff was awarded ninety-six hours of speech language services-approximately eight times the number of hours urged by the defendant. Kelsey, 85 F.Supp.3d at 331; see also AR at 20, ECF No. 16-1.

         In December 2013, the plaintiff initiated the present action to challenge that award and to recover the attorney's fees incurred in the administrative proceeding. SeeCompl. ¶¶24-29. In her substantive challenge to the Hearing Officer's award, the plaintiff alleged that "the evidence showed that she required 480 hours of Speech therapy." Id. at 2. The plaintiff and the defendant filed cross-motions for partial summary judgment on the plaintiffs appeal of the award, see Pl.'s Mot. Summ. J., ECF No. 24; Def.'s Opp'n Pl.'s Mot. Summ. J. & Cross-Mot. Summ. J., ECF No. 27, and the Magistrate Judge recommended that the plaintiff's motion be denied and the defendant's motion be granted, see Report and Recommendation, Jan. 13, 2015 ("Jan. 13, 2015 R&R"), ECF No. 32. This Court adopted that report over the plaintiff's objections, thus denying the plaintiffs motion and granting the defendant's motion. See Kelsey, 85 F.Supp.3d at 337.

         Following that decision, the plaintiff filed a motion for summary judgment on her request for attorney's fees in the amount of $46, 597.50 as the prevailing party in the IDEA administrative proceeding. See Pl.'s Mot. Summ. J. at 1, ECF No. 40. In opposing the plaintiff's request, the defendant argued that the proposed billing rate of $450.00 per hour was unreasonable and, in addition, that the overall award should be reduced by at least sixty percent to reflect the plaintiffs limited success. See Def.'s Mem. P. & A. at 1, 9, ECF No. 43. The Magistrate Judge recommended that both motions be granted in part and denied in part. Report and Recommendation, Mar. 18, 2016 ("Mar. 18, 2016 R&R"), at 1, ECF No. 46. Specifically, while finding reasonable the requested billing rate of $450.00 per hour, the Magistrate Judge recommended reducing the amount requested by the plaintiff by fifteen percent, to $39, 607.45, to account for "the disparity between the relief Plaintiff requested and the actual relief she was awarded" in the underlying administrative proceeding. Id. at 12. The parties filed no objections to the Magistrate Judge's report, and this Court adopted it in its entirety, thus granting in part and denying in part both motions. See Mem. & Order, Apr. 5, 2016, ECF No. 47.

         In the present motion, the plaintiff seeks a so-called fees-on-fees award, requesting reimbursement for attorney time expended that was "reasonably necessary" to prevail on her request for attorney's fees in connection with the administrative proceedings, as well as for fees incurred in the present motion. Pl.'s Mem. P. & A. Supp. Pl.'s Mot. Attorney's Fees ("Pl.'s Mem.") at 2-3, ECF No. 48. Specifically, the plaintiff sought reimbursement for (1) "$70, 200.00 in fees for attorney time expended through the date of the Court's [March 31, 2015, ] Memorandum & Order, " comprising 157.2 of the 363.3 total hours expended in the course of this action at a billing rate of $450.00 per hour, and (2) $4, 230.00, comprising 9.4 hours of attorney time at the same rate, for the preparation of the instant motion for fees-on-fees. Id. at 3.

         The defendant opposed the plaintiffs motion on the grounds that the plaintiff "seeks compensation for hours spent on the unsuccessful appeal, and any award should be reduced to account for Plaintiff's degree of success on the merits of the first fees petition." Def.'s Opp'n Pl.'s Mot. Attorney's Fees & Costs ("Def.'s Opp'n") at 1, ECF No. 50. The defendant acknowledged that the plaintiff prevailed in the fees dispute, but pointed out that she did not prevail on her substantive appeal of the Hearing Officer's determination. Id. at 3. According to the defendant, only 98.5 of the hours claimed by the plaintiff were expended for the fees dispute. Id. at 8. Moreover, the defendant contended that "Plaintiffs requested number of hours more than triples the hours reasonably devoted to substantially the same tasks in other, very similar litigation" and thus "the Court should reduce the number of hours to no more than 45 hours." Id. at 9. In reply, the plaintiff conceded 6.2 of the requested hours, which were expended during the period from July 23, 2013, to February 3, 2014, and contested by the defendant. See Pl.'s Reply Def.'s Opp'n Pl.'s Mot. Fees at 5-6, ECF No. 51.

         The R&R recommends three adjustments to the plaintiff's request for attorney's fees, resulting in a total award of $29, 947.50.[1]R&R at 10. First, since the plaintiff "has not proffered any evidence that the fee litigation in the matter was particularly complex or noveL" the R&R recommends that "Plaintiff is not entitled to full Lajfey" rates but instead the "compensable rate . .. reduced by 50%, to $225.00 per hour." R&R at 8. Second, the R&R recommends, in addition to the plaintiff's concession of 6.2 hours, that the number of hours expended during that same period, from July 23, 2013, to February 3, 2014, be further reduced by fifty percent because "Plaintiffs efforts were expended in equal part, if not in large part, to further an unsuccessful appeal of the [administrative proceeding]." Id. at 9. Finally, the R&R "recommends that Plaintiff's overall award be reduced by 15% for limited success at the remand hearing stage in accordance with this Court's findings in the original Report and Recommendation and Memorandum and Order regarding attorneys' fees." Id. at 8.


         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 amotion 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 denovo 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 denovo 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 ... to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B)(i). Such fees must be "be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished, " with no "bonus or multiplier .. . used in calculating" a final IDEA fee award. Id. § 1415(f)(3)(C). This statutory language makes plain that a prevailing party in an IDEA action may seek the award of attorneys' fees that are "reasonable." Id. § 1415(i)(3)(B)(i). The D.C. Circuit has developed a "three-part" analysis for assessing whether a requested fee award is reasonable under federal statutes authorizing fee-shifting. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015). "First, the court must determine the number of hours reasonably expended in litigation. Second, it must set the reasonable hourly rate. Finally, it must determine whether use of a multiplier is warranted." Id. (internal citations and quotation marks omitted).[2] With regard to the proposed hourly rate, the Court considers three sub-elements: "(1) 'the attorney['s] billing practices, ' (2) 'the attorney['s] skills, experience, and reputation' and (3) 'the prevailing market rates in the relevant community.'" Id. (alterations in original) (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995)).

         The availability of reasonable attorneys' fees applies to fees incurred in IDEA litigation both before administrative agencies and in federal court, as well as to fees incurred to vindicate a plaintiff's right to fees. Thus, the D.C. Circuit held in Kaseman v. District of Columbia that "[p]arties who prevail at the administrative level can also recover fees-on-fees, as [the D.C. Circuit's] general rule is that the court may award additional fees for 'time reasonably devoted to obtaining attorney's fees.'" 444 F.3d 637, 640 (D.C. Cir. 2006) (quoting Envtl. Def Fund v. EPA, 672 F.2d 42, 62 (D.C. Cir. 1982)). In allowing successful plaintiffs to obtain fees-on-fees, the D.C. Circuit has emphasized that the availability of such awards "is essential to carrying out Congress' goal in including [fee-shifting] provision[s] in the first place." Am. Fed'n of Gov't Emps., AFL-CIO, Local 3882 v. Fed. Labor Relations Auth., 994F. 2d 20, 22 (D.C. Cir. 1993). Without them, a litigant would not be made "whole when she is wronged under a statute, " even if she succeeds on the merits of her claim, and potential litigants might be discouraged from bringing their claims because of the "costs of pursuing such suits." Id. Consequently, "such fees are often necessary to fulfill the purposes of the statutory scheme on which the action is based." Id.

         "The 'fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates.'" Eley, 793 F.3d at 100 (quoting Covington, 57 F.3d at 1107). Once an applicant meets this initial burden, a presumption applies that the number of hours billed and the hourly rates are reasonable. Covington, 57 F.3d at 1109 (citing Blum v. Stenson,465 U.S. 886, 897 (1984)); see also Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C. 2010) (citing Blackman v. District of Columbia,677 F.Supp.2d 169, 172 (D.D.C. 2010)). At that point, the burden shifts to the opposing party to "provide specific contrary evidence tending to show ...

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