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McNeil v. District of Columbia

United States District Court, District of Columbia

February 2, 2017

JADEN MCNEIL, et al., Plaintiffs,
DISTRICT OF COLUMBIA, Defendant. Re Document No. 21


          RUDOLPH CONTRERAS United States District Judge.


         Plaintiffs Jaden McNeil, Patrick Canavan, and Daniel McNeil (“Plaintiffs”) successfully established through an administrative proceeding that the District of Columbia Public Schools (“the District”) failed to provide Jaden McNeil with a free and appropriate public education in violation of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. After the success of their administrative proceeding, Plaintiffs initiated an action in this Court to recover their attorney's fees and costs and were awarded $44, 815.73 in legal fees and $2, 252.74 in costs on December 29, 2015. See McNeil v. District of Columbia, No. 14-1981 (RC), 2015 WL 9484460, at *21-24 (D.D.C. Dec. 29, 2015), ECF No. 20.

         Pending before the Court is Plaintiffs' motion requesting an award of attorney's fees and costs incurred in their previous fee action-commonly known as “fees-on-fees.” Upon consideration of the memoranda and exhibits submitted in connection with this Motion, the opposition thereto, and Plaintiffs' reply, for the reasons set forth below, Plaintiffs' Motion is granted in part and denied in part. An appropriate Order accompanies this Memorandum Opinion.


         Jaden McNeil, Patrick Canavan, and Daniel McNeil prevailed administratively on their IDEA claims. Plaintiffs then filed an action on November 23, 2014 seeking to recoup their legal fees and expenses from the underlying administrative IDEA proceeding, as permitted under 20 U.S.C. § 1415(i)(3)(B)(i)(I). See Am. Compl., ECF No. 3. Plaintiffs requested $52, 343 in legal fees and $2, 252.74 in expenses in that action, after amending their initial request to correct a billing error, and were awarded $44, 815.73 in attorney's fees and the full amount of expenses. Order, Dec. 29, 2015, ECF No. 19. The Court arrived at the reduced fee award by setting the hourly rate at 75% of the United States Attorney's Office Laffey matrix rate[1] because the Court concluded that amount accurately reflected the prevailing market rate, see McNeil, 2015 WL 9484460, at *3-7, and then reducing the resulting fees by 10% because Plaintiffs had limited success in the underlying administrative complaint. Id. at *7-10.

         The instant motion was filed by Plaintiffs to recoup attorney's fees and costs that Plaintiffs incurred in their previous fee proceeding. Pls.' Mot. Att'y Fees (Pls.' Mot.) at 1-2, ECF No. 21. This is commonly known as “fees-on-fees” litigation. Plaintiffs request an award of $36, 335.75 in legal fees[2] and $414.59 in costs, [3] or non-fee expenses. Pls.' Mot. at 1, 17-18. Plaintiffs have been represented throughout this action by Ms. Diana Savit. During the period of the representation at issue here, her general billing rate was $425 an hour, Pls.' Mot. at 3-4, although Plaintiffs were historic clients and were thus actually billed at $390 an hour, Savit Decl. ¶¶ 4, 5, ECF No. 21-1, Ex. 1. The District argues that Plaintiffs should only receive fees through December 29, 2015, when summary judgment was entered in the initial fee action, and that the amount Plaintiffs seek for that period should be reduced from $21, 546.50 to $13, 234.73 to accord with 50% of the Laffey matrix rate. Def.'s Opp'n Pls.' Mot. Att'y Fees (Def.'s Opp'n) at 1, 9, ECF No. 22. The District argues Plaintiffs should not receive any attorney's fees for work performed after this Court's resolution of the initial fee action because that work constitutes fees-on-fees-on-fees litigation, which is too far removed in scope from the underlying IDEA litigation to be compensable. Def.'s Opp'n at 1, 7. The District does not directly address Plaintiffs' request for $1, 245 in legal assistant fees, and accepts Plaintiffs' request for $414.59 in costs. Def.'s Opp'n at 9.

         III. ANALYSIS

         A. Legal Standard for Awarding Fees

         The IDEA creates an avenue for prevailing parties to recover attorney's fees, and also allows “[p]arties who prevail at the administrative level [to] recover fees-on-fees . . . for time reasonably devoted to obtaining attorney's fees.” Kaseman v. District of Columbia, 444 F.3d 637, 640 (D.C. Cir. 2006) (internal quotation marks omitted). The general paradigm for attorney's fees in this jurisdiction[4] is determined by “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C. 2010) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The District does not dispute that Plaintiffs are prevailing parties and that some award to them is appropriate. This Court must thus determine (1) the appropriate hourly rate for Plaintiffs' counsel and (2) the reasonableness of the hours billed by Plaintiffs' counsel. Because the “results obtained” in the underlying action are also a factor, Hensley, 461 U.S. at 434, the Court must also consider whether Plaintiffs' fees should be reduced due to their limited degree of success in the previous fee action. Where a prevailing party has achieved only partial success, this Court has discretion to exercise its equitable judgment to “identify specific hours that should be eliminated, or . . . simply reduce the award to account for the limited success.” Id. at 436. The plaintiff bears the burden of establishing the reasonableness of a fee request. In re North, 59 F.3d 184, 189 (D.C. Cir. 1995). After laying out the applicable law for each issue in greater detail, the Court will consider each issue in turn.

         B. Hourly Rate

         Plaintiffs contend that $425 per hour, the rate charged by their counsel, is reasonable and supported by their counsel's billing practices, skill, experience, reputation, and the prevailing market rates. The District argues that the prevailing market rate in the community IDEA fee litigation is 50% of the Laffey matrix rate. Although both parties thus invite the Court to reopen its consideration of the prevailing rate, which was already established in the Court's prior memorandum opinion in this case, McNeil, 2015 WL 9484460, at *3-7, the Court declines to do so. Neither the Plaintiffs nor the District have adequately shown that the fee litigation and underlying proceeding are so distinct as to constitute different “markets” and justify different compensation. The Court thus instead continues to calculate the appropriate fee at 75% of the applicable Laffey rate.

         Other courts in this jurisdiction have concluded that “a successful fee applicant seeking fees-on-fees [need not] demonstrate anew the reasonableness of her proposed rate for time expended in her successful fee application.” Kelsey v. District of Columbia, No. CV 13-1956 (BAH), 2016 WL 7017252, at *5 (D.D.C. Dec. 1, 2016) (quoting Jones v. District of Columbia, 153 F.Supp.3d 114, 123 (D.D.C. 2015)). This approach also finds support in the D.C. Circuit's recent guidance on fees-on-fees in the IDEA context. In Reed v. District of Columbia, the D.C. Circuit affirmed the district court judge's decision to award fees-on-fees at the same rate as attorney's fees on the original proceeding without “‘enter[ing] the labyrinth' of determining the appropriate rate anew.”[5] 843 F.3d 517, 523 (D.C. Cir. 2016) (quoting the district court opinion); see also Jones, 153 F.Supp.3d at 123 (awarding the same hourly rate for fees-on-fees and fees in the underlying proceeding because of “the principle that the fees petition and the administrative action in an IDEA case are part of the same action. Likewise, though in a different context, the D.C. Circuit has observed that a follow-on IDEA fee application should be treated as ‘part of the same “action” as the underlying educational dispute, . . . such that ‘the parent's entitlement to fees arises out of the same controversy and depends entirely on the administrative hearing for its existence.' (quoting Kaseman, 444 F.3d at 641-42) (other internal quotation marks and citations omitted)).

         The District requests that this Court depart from its prior determination of the appropriate hourly rate in this case and instead use 50% of the Laffey matrix. See Def.'s Opp'n at 4 & n.2, ECF No. 22. (collecting cases in which fees-on-fees were calculated at 50% of the Laffey matrix rate). The Court finds the weight of authority from other courts in this jurisdiction unpersuasive, as the courts are split and do not agree on a consistent rate for either IDEA litigation or subsequent fee proceedings.[6] See Kelsey, 2016 WL 7017252, at *5 (“[T]here exists a lack of unanimity among judges on this Court regarding the reasonable rate for attorneys' fees stemming from IDEA litigation . . .” (internal quotation marks and citations omitted)). Other courts in this district have concluded that fees-on-fees are appropriately awarded at above 50% of the Laffey matrix rate. See, e.g., Kelsey, 2016 WL 7017252, at *6 (awarding both fees-on-fees and initial attorney's fees at an amount near 75% of the Laffey matrix rate); Eley v. District of Columbia, No. CV 11-309 (BAH), 2016 WL 4435187, at *11 (D.D.C. Aug. 22, 2016) (awarding both fees-on-fees and initial attorney's fees at the full Laffey matrix rate); Memorandum and Opinion, Reed v. District of Columbia, No. 14-cv-1887, ECF No. 30, at 2 (awarding both fees-on-fees and initial attorney's fees at 75% of the Laffey matrix), aff'd in part 843 F.3d 517 (D.C. Cir. Dec. 9, 2016); see also Blackman v. District of Columbia, 56 F.Supp.3d 19, 27 (D.D.C. 2014) (awarding fees-on-fees at 75% of the Laffey matrix rate as applied to the junior lawyers on the case); Coleman v. District of Columbia, No. 03-00126 HHK, 2007 WL 1307834, at *4 (D.D.C. May 3, 2007) (awarding fees-on-fees at the requested rates, given that their rates were not “substantially higher than the appropriate rate indicated by the Laffey Matrix”). Finally, it appears that IDEA practitioners in the market generally bill at the same rate for work on the underlying proceeding and fee collection work.[7]

         The Court thus decides against reopening the question of the appropriate hourly rate. Relitigating the issue would be illogical given that the initial fee proceeding and this proceeding are parts of the same action. To do so would also increase the burden on the courts and unnecessarily protract the litigation without advancing the goals of IDEA. See Kelsey, 2016 WL 7017252, at *3 (noting that the availability of fee awards is essential to the goals of the IDEA). As the Supreme Court noted in the Equal Access to Justice Act context, “treating a case as an inclusive whole, rather than as atomized line-items” for the purpose of resolving subsequent fee motions is helpful in avoiding a “Kafkaesque judicial nightmare” of indefinitely extended fee litigation. Comm'r, INS v. Jean, 496 U.S. 154, 162-63 (1990). Furthermore, requiring prevailing plaintiffs to overcome redundant hurdles before recovering fees creates the same “financial deterrent that [fee-shifting statutes] aim [] to eliminate.” Id. at 164.

         Plaintiffs' recovery will thus be capped at 75% of the applicable Laffey rate, as it was in the previous fee proceeding. See McNeil, 2015 WL 9484460, at *6 (“Consequently, and in line with the authority of a substantial number of cases in this district, the Court agrees . . . that the prevailing market rate for IDEA litigation is 75% of the Laffey matrix rates.”). However, setting the ceiling at 75% of the Laffey rate does not dispose of the appropriate rate because Plaintiffs should not be overcompensated with an award of more than they were billed. A careful examination of the declarations in this case reveals that Ms. Savit actually billed Plaintiffs at $390 an hour[8] throughout the representation.[9] Savit Decl. ¶¶ 4, 5, ECF No. 21-1, Ex. 1 (“[W]hen [Plaintiffs] first retained my firm, my hourly rate was $390, ” and because “[i]t is my practice to maintain the rate at which a client first retained me throughout the representation, ” Plaintiffs continued at the $390 rate).

         Although various circumstances can justify awarding attorney's fees at a rate above that actually billed to the client, none of the circumstances were demonstrated by Plaintiffs here. “The D.C. Circuit has recognized that, under a fee-shifting statute such as the IDEA, a plaintiff's attorney charging discounted hourly rate out of ‘public-spiritedness' may be entitled to fees at the higher market-prevailing rate.” Dickens v. Friendship-Edison P.C.S., 724 F.Supp.2d 113, 120-21 (D.D.C. 2010). However, this requires a showing by the attorney that public-spiritedness was indeed the motivation behind the lower rate. Counsel here fails to provide “argument for or evidence of any public-spirited discount.” Id. at 121. Thus, as in Dickens, “[t]hat [the attorneys] have billed below the market rate articulated in the Laffey Matrix does not-absent proof of the motivation behind this rate-entitle them to a higher award. Id. Thus, for [the attorneys], this Court will permit recovery at the rate actually charged to Plaintiffs.” Id.; see also Makray v. Perez, 159 F.Supp.3d 25, 42 (D.D.C. 2016) (“[T]he D.C. Circuit has [] clarified that fee applicants seeking reimbursement at rates that are greater than those normally charged by their attorneys ‘must offer some evidence that [the applicant's attorneys] charge reduced rates for public-spirited or non-economic reasons'. . . . the D.C. Circuit left this determination ‘within the sound discretion of the district court.'” (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107-08) (D.C. Cir. 1995)).

         Here, Plaintiffs' counsel explained that she billed preexisting clients at the original, lower rate, but did not provide her reasons for doing so, much less assert that the reason was public-minded. Plaintiffs will thus be limited to recovering $390 per hour when that amount is less than 75% of the Laffey matrix rate. The Laffey matrix is updated each year, and new rates take effect on June 1 of any given year.[10] The following rates will thus apply:[11] $390 per hour[12] for Ms. Savit's attorney-level work performed between May 31, 2014 and June 1, 2015; $390 per hour[13] for Ms. Savit's attorney-level work performed between May 31, 2015 and June 1, 2016; and $390 per hour[14] for Ms. Savit's attorney-level work performed after June 1, 2016. Likewise, the Plaintiffs' fee request for work by paralegals[15] will also be awarded at 75% of the applicable Laffey rate, as they were in the previous proceeding, McNeil v. District of Columbia, No. 14-1981 (RC), 2015 WL 9484460, at *3-7 (D.D.C. Dec. 29, 2015), unless that would overcompensate Plaintiffs. Therefore, the Court holds that $112.50 an hour is the appropriate upper limit for paralegal services rendered between June 1, 2014 and May 31, 2015;[16] $115.50 is the appropriate upper limit for paralegal services rendered between June 1, 2015 and May 31, 2016;[17] and $117.75 is the upper limit for paralegal services rendered after June 1, 2016.[18] In this case, Mathieu Antezana and Isaac Nelson billed their time at $75 an hour, Savit Decl. ¶ 13, ECF No. 21-1, Ex. 1, and the Court will thus limit the recovery for those fees to $75 an hour. Similarly, Elaine Avner billed her time at $95 an hour, Savit Decl. ¶ 13, and the Court will thus award her time at that rate. The Laffey-matrix-based rate will thus apply only to Ms. Savit's paralegal time.

         In large part, this result grants Plaintiffs the outcome they request because 75% of the Laffey matrix rate is near $390 for several of the years at issue and three of the paralegals billed below 75% of the Laffey matrix rate. To the extent that Plaintiffs are denied their requested award on the grounds that they requested more than the prevailing market rate, the Court finds their arguments for an increased award over the rate granted in the previous proceeding unpersuasive.[19] The Court further notes that Plaintiffs' primary barrier to recovering more than $390 an hour is not the Court's determination of the prevailing market rate, but Ms. Savit's actual billing practices. Plaintiffs' briefing does not address this issue, and Plaintiffs' substantial discussion of the amounts billed by other attorneys are inapposite.

         C. Hours Billed

         The Court next considers whether the total hours for which Plaintiffs seek compensation are reasonable. See Pls.' Mot. at 3-4, ECF No. 21; see generally 1st Invoices, ECF No. 21-3, Ex. 1B. The District only challenges those hours billed after this Court entered summary judgment in the initial fee action on December 29, 2015, arguing subsequent bills do not reflect time spent recovering the initial fees (fees-on-fees), but instead time spent pursuing the fee-on-fee action (fees-on-fees-on-fees). The Court does not apply such a mechanical test and concludes that subsequent fees are not unduly attenuated from the underlying action.

         Although the District does not challenge fees generated prior to December 29, 2015, this Court must make an independent determination regarding whether the hours set forth in the invoice are justified. See McAllister v. Di 2016) (citing Nat'l Ass'n of Concerned Veterans v. Sec'y of Def, 675 F.2d 1319, 1327 (D.C. Cir. 1982)), appeal docketed, No. 16-7035 (D.C. Cir. Mar. 24, 2016). After reviewing the invoices, the Court concludes that the hours billed prior to December 29, 2015[20] are reasonable and that no reduction is warranted on this basis. Therefore, Plaintiffs may recover 56.75 hours at the appropriate attorney's rate as well as 10.7 hours of paralegal time billed at the appropriate paralegal rate.[21]

         Next, the Court turns to Plaintiffs' request for hours billed after December 29, 2015. The District argues that these hours are too “attenuated” from the underlying IDEA proceeding to be compensable. Def.'s Opp'n at 7, ECF No. 22. The Court, however, agrees with Plaintiffs that drawing artificial boundaries between phases of the fee litigation is unnecessary and contrary to the IDEA's intent. Pls.' Reply at 14-15, ECF No. 25.

         The IDEA states 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) (2004). The statute enumerates several possible limitations on fees, including situations where the parents decline a better settlement offer, “unreasonably protract[] the final resolution of the controversy, ” or spend excessive resources “considering the nature of the action or proceeding.” Id. § 1415(i)(3)(D)-(F). The IDEA does not restrict the award of fees based on whether the fees were generated during the underlying IDEA proceeding, or subsequent fee enforcement proceedings.

         Plaintiffs argue that, in the absence of any such restriction, the Court has the discretion to award fees for work performed to bring the fee-on-fee action, and that such an award would, like the initial fee proceeding, protect the goals of the IDEA. Pls.' Reply at 14-15. As the court in Garvin noted,

[T]he unavailability of “fees on fees” awards in IDEA cases would essentially render the attorneys' fees provision of the IDEA unenforceable, causing a party to forfeit any outstanding balance due to the prohibitive cost of the litigation to recover it. The inability to enforce the attorneys' fees provision would, in turn, undermine Congress' goal in enacting the fee-shifting provision by making it more difficult for families to secure legal representation to enforce a child's rights under the IDEA.

Garvin v. District of Columbia, 910 F.Supp.2d 135, 138-39 (D.D.C. 2012). Although those comments were directed toward the availability of fees-on-fees, the same arguments ...

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