United States District Court, District of Columbia
A. Howell Chief Judge
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
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.
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.
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.
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.
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.
R&R recommends three adjustments to the plaintiff's
request for attorney's fees, resulting in a total award
of $29, 947.50.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.
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 .. ..").
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). 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)).
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.
'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