United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
case comes before the Court on plaintiffs' motion for
attorneys' fees, ECF No. 537. Plaintiffs brought claims
under the Individuals with Disabilities Education Act
("IDEA"), the Rehabilitation Act, and District of
Columbia law. After many years of litigation which included
class certification issues, summary judgment, trial, and
appeals, this case is finally at its end. Plaintiffs now seek
$9, 760, 487.55 in attorneys' fees and costs. For the
reasons stated below, this Court finds that plaintiffs are
entitled to fees and costs, although not in this amount. It
will grant in part and deny in part plaintiffs' motion,
but will seek a revised calculation from plaintiffs before
ordering the District of Columbia to pay.
case, originally filed in 2005, was brought by the parents of
preschool age children with various disabilities who tried to
obtain special education services from the District of
Columbia Public Schools ("DCPS"), alleging
violations of the Individuals with Disabilities Education Act
("IDEA"), the Rehabilitation Act, and District of
Columbia law, which require that the District offer a
"free and appropriate public education"
("FAPE") to disabled children. These laws require
"states to develop a 'practical method' to track
which children are receiving special education services and
to ensure that all children 'who are in need of special
education and related services ... are identified, located,
and evaluated' within a timeframe set by the state-120
days in this case." DL v. D.C., 860 F.3d 713,
717 (D.C. Cir. 2017) (citing 20 U.S.C. § 1412(a)(3)(A);
20 U.S.C. § 1414(a)(1)(C)(i)(I); D.C. Code §
38-2561.02(a)(1)). States are additionally obligated "to
provide a seamless transition when three-year-olds move from
'early intervention' programs (governed by IDEA Part
C) to preschool (governed by IDEA Part B)." Id.
(citing 20 U.S.C. §§ 1412(a)(9), 1435(a)(8)(A),
1437(a)(9); 34 C.F.R. § 303.209). These provisions are
known as the "Child Find" duty.
alleged numerous knowing, pervasive, and systemic failures to
comply with the "Child Find" requirement. The
procedural history of this case is set out in the many
opinions from both this Court and the Court of Appeals. It
was most recently summarized in DL v. D.C, 860 F.3d
713 (D.C. Cir. 2017), and need not be repeated in full here.
It is sufficient to note that plaintiffs ultimately brought
claims related to four subclasses:
(1) disabled three-to-five-year-olds whom the District failed
to identify for the purpose of offering special education
services; (2) disabled three-to-five-year-olds whom the
District failed to give an initial evaluation within 120 days
of being referred for special education services; (3)
disabled three-to-five-year-olds whom the District failed to
give an "eligibility determination"-i.e.,
a decision as to whether they qualify for IDEA
services-within 120 days of being referred; and (4) all
children who transitioned from early intervention to
preschool programs, and whom the District denied a
"smooth transition" by age three.
2014, the Court found that "the District was liable for
violating the IDEA and District law for the period up to
April 6, 2011" for all four subclasses. DL v.
D.C, 194 F.Supp.3d 30, 37 (D.D.C. 2016). It ruled for
defendants, however, "on (1) plaintiffs' IDEA and
District law claims related to the failure timely to evaluate
children for special education and related services for the
period from April 6, 2011 to the present [Subclass 2], and
(2) all of plaintiffs' Rehabilitation Act claims for the
period from March 22, 2010 to the present." Id.
Then, at trial, plaintiffs alleged that the District violated
the IDEA with respect to Subclasses 1, 3, and 4 from April 6,
2011 through the present, and that the District violated the
Rehabilitation Act with respect to all four subclasses for
the period up to March 22, 2010. Id. at 37-38. After
trial, the Court found that the District had violated the
IDEA with respect to Subclasses 1, 3, and 4 from April 6,
2011 through the first day of trial (November 12, 2015), and
that it violated the Rehabilitation Act with respect to all
four subclasses through March 22, 2010. Id. at
88-96. The breakdown of each party's success is as
IDEA Claims through April 6, 2011
IDEA Claims from April 6, 2011 to
Rehabilitation Act Claims through March 22,
Rehabilitation Act Claims from March 22,
2010 to present
18, 2016, this Court found that "[p]laintiffs have
prevailed on both IDEA and Rehabilitation Act claims.
Pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I) (IDEA) and
20 U.S.C. § 794a(b) (Rehabilitation Act), the District
shall pay plaintiffs' reasonable attorneys' fees and
related nontaxable expenses associated with litigating this
suit." May 18, 2016 Order ¶ 30, ECF No. 521.
Plaintiffs now request fees for two periods of time: 1)
through November 16, 2011 (Period 1); from November 17, 2011
to June 22, 2016 (Period 2). Plaintiffs originally requested
fees and costs totaling $10, 010, 956, using the current
rates set out in the LSI Matrix. After briefing, they now
request $9, 760, 487.55 using LSI Matrix rates. The law firm
of Terris, Pravlik & Millian, LLP ("TPM"), lead
counsel in this case, requests fees totaling $8, 962, 597.98
and costs totaling $259, 409.83. Professor Jeffrey S. Gutman,
who oversaw a clinic at The George Washington University Law
School in which students worked on this case, requests fees
totaling $135, 476.32. Co-counsel Margaret A. Kohn, who
served as class counsel and the primary contact with the
named plaintiffs, requests fees totaling $380, 009.56 and
costs totaling $1, 727.61. Co-counsel Cyrus Mehri, who
performed work related to class certification and settlement,
requests fees totaling $21, 266.25.
District argues that the Court should award fees using the
USAO Matrix, and should use historic (2012) rates with
interest for Period 1, and current rates for Period 2. The
District also argues that the requested fees should be
reduced because plaintiffs billed an unreasonable number of
hours for many tasks, because they improperly billed for
matters in which they failed to prevail, and because they
failed to exercise reasonable billing judgment. It also
argues that fees for co-counsel should be reduced
substantially or denied. Furthermore, it argues that
plaintiffs' costs are excessive and should be reduced
significantly, and that expert fees are not reimbursable.
Finally, the District argues that the IDEA's statutory
fee cap requires that the Court deny plaintiffs' request
unless and until plaintiffs demonstrate actual class
membership. The United States has submitted a statement of
interest pursuant to 28 U.S.C. § 517, and argues that
the USAO Matrix is the appropriate fee matrix to use in this
and other cases.
Legal Framework for Determining Fee Awards
Court has recently had occasion to discuss the legal
framework surrounding attorneys' fees in IDEA cases,
which often come before this District Court. The Court thus
refers to its own opinion in Joaquin v. D.C., 210
F.Supp.3d 64 (D.D.C. 2016), in which it summarized the
analysis as follows:
The IDEA provides that courts may award reasonable
attorney's fees to prevailing parties. 20 U.S.C. §
1415(i)(3)(B)(i). The fees must be "based on rates
prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished."
Id. § 1415(i)(3)(C). A three part analysis
guides the assessment of whether a requested fee award is
reasonable: "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." Eley v. District of Columbia, 793
F.3d 97, 100 (D.C. Cir. 2015) (internal citations omitted).
To determine a reasonable hourly rate, the court considers
"(1) the attorney['s] billing practices, (2) the
attorney['s] skill, experience, and reputation and (3)
the prevailing market rates in the relevant community."
Id. (internal quotation marks omitted).
Attorney's fee litigation employs a burden-shifting
The fee applicant bears the burden of establishing
entitlement to an award, documenting the appropriate hours,
and justifying the reasonableness of the rates. Once an
applicant meets this initial burden, a presumption applies
that the number of hours billed and the hourly rates are
reasonable. At that point, the burden shifts to the opposing
party to provide specific contrary evidence tending to show
that a lower rate would be appropriate.
Flood v. District of Columbia, No. CV 15-497 (BAH),
172 F.Supp.3d 197, 203, 2016 WL 1180159, at *3 (D.D.C. Mar.
25, 2016) (internal citations and quotation marks omitted).
210 F.Supp.3d at 68. The Court will specifically address the
standards for determining reasonable hourly rates and the
reasonableness of hours billed in Parts IV.B.l and IV.C.l,
certain circumstances, there is no need to conduct the
aforementioned fee award analysis. In 1999, Congress capped
the fees payable by the District in IDEA cases. See
Omnibus Consolidated and Emergency Supplemental Appropriation
Act of 1999, Pub. L. No. 105-277, § 130, 112 Stat. 2681
(1998). In 2003, Congress set a flat cap of $4, 000 on
attorneys' fees for IDEA actions. See
Consolidated Appropriations Act of 2003, Pub. L. No. 108-7,
§ 144, 117 Stat. 11 (2003). In 2009, Congress passed the
final rider relating to IDEA attorneys' fees, stating:
Notwithstanding section 615(i)(3)(B) of the Individuals with
Disabilities Education Act (20 U.S.C. § 1415(i)(3)(B)),
none of the funds contained in this Act or in any other Act
making appropriations for the government of the District of
Columbia for fiscal year 2009 or any succeeding fiscal year
may be made available-
(1) to pay the fees of an attorney who represents a party in
or defends an IDEA proceeding which was initiated prior to
the date of the enactment of this Act in an amount in excess
of $4, 000 for that proceeding.
Appropriations Act, Pub. L. No. 111-8, § 814, 123 Stat.
524 (2009). The 2009 rider did not provide a fee cap for
the D.C. Circuit found that "the 'evident
intent' of the  statute is to address individual
IDEA proceedings, not class actions." Blackman v.
D.C, 633 F.3d 1088, 1092 (D.C. Cir. 2011). Thus,
the cap does not preclude the Court from ordering defendants
to pay and-more importantly-does not preclude the defendants
from paying reasonable attorneys' fees to the plaintiff
classes, so long as the total amount paid by the defendants
does not surpass the statutory fee cap multiplied by the
total number of members of the plaintiff class.
Id. (quoting and agreeing with the reasoning of the
District Court) ("As it is undisputed that the classes
number in the hundreds, if not thousands, the plain and
unambiguous language of the statute would seem to make the
district court's conclusion unassailable and compel us to
affirm the fee award order."). Thus, the fee cap
prohibits fee awards in class actions that are greater than
$4, 000 multiplied by the number of class members.
the applicability of fee caps would have an impact on the fee
award in this case and would eliminate the necessity of
conducting a lodestar analysis, the Court will address this
issue first. The Court will discuss whether this entire case
should be treated as an IDEA case or whether it should be
treated as a Rehabilitation Act case, which has no fee cap
requirements, and then will determine whether the caps apply
in this case.
vs. Rehabilitation Act
Court first determines that this case should be treated as an
IDEA case for the purpose of determining whether the fee caps
are even relevant. Plaintiffs brought claims under both the
IDEA and the Rehabilitation Act, which have separate
fee-shifting provisions. Compare 20 U.S.C.§
1415(i)(3)(B)(i) with 29 U.S.C. § 794a(b). The
Rehabilitation Act, which prohibits discrimination on the
basis of disability in programs receiving federal funding,
states in its implementing regulations that "a recipient
that operates a public elementary or secondary education
program or activity shall provide a free appropriate public
education to each qualified handicapped person who is in the
recipient's jurisdiction, regardless of the nature or
severity of the person's handicap." 34C.F.R. §
104.33. In 2006, this Court set out the standard for
Rehabilitation Act claims in the IDEA context:
In order to state a claim under Section 504 of the
Rehabilitation Act in IDEA cases, plaintiffs must show that
"something more than a mere failure to provide the
'free and appropriate education' required by the
[IDEA]'" has occurred. Walker v. District of
Columbia, 157 F.Supp.2d 11, 35 (D.D.C. 2001) (Friedman,
J.)[.] Generally, plaintiffs who show either "bad faith
or gross misjudgment" can prevail under Section 504 for
IDEA violations. Id. Liability will not be imposed
so long as the "state officials involved have exercised
professional judgment, in such a way as not to depart grossly
from accepted standards among educational
professionals." Monahan v. Nebraska, 687 F.2d
1164, 1171 (8th Cir. 1982).
DL v. DC, No. 05-1437, slip op. at 3-4 (D.D.C. Aug.
2, 2006) (ECF No. 55).
2010, this Court granted summary judgment in favor of
plaintiffs with respect to their Rehabilitation Act claims
through 2007 after finding that the District failed to comply
with the IDEA and concluding that "defendants knew that
their actions were legally insufficient, yet failed to bring
themselves into compliance with their legal obligations, in
violation of § 504 of the Rehabilitation Act, "
which showed "bad faith or gross misjudgment."
DL v. D.C., 730 F.Supp.2d 84, 100 (D.D.C. 2010). In
2011, this Court "extend[ed] the holding of its August
10, 2010 Memorandum Opinion, and declare[d] that defendants
violated Section 504 of the Rehabilitation Act for the period
January 1, 2008 to April 6, 2011 (the first day of the first
trial) because, in violating the IDEA, defendants failed to
exercise professional judgment in such a way as not to depart
grossly from accepted standards among educational
professionals and thus demonstrated bad faith or gross
misjudgment." DL v. D.C., 845 F.Supp.2d 1, 24
(D.D.C. 2011) (internal citation omitted). After disputes
regarding class certification, the plaintiffs were broken
into the four aforementioned subclasses. This Court then
concluded in 2016 that the District violated the
Rehabilitation Act through March 22, 2010 with respect to
Subclass 1 "because it demonstrated bad faith and gross
misjudgment with regard to its FAPE and Child Find
obligations;" that it violated the Rehabilitation Act
with respect to Subclass 2 through March 22, 2010
"because it demonstrated bad faith and gross misjudgment
with regard to its obligation to provide timely initial
evaluations for special education and related services;"
that it violated the Rehabilitation Act with respect to
Subclass 3 through March 22, 2010 "because it
demonstrated bad faith and gross misjudgment with regard to
its obligation to provide timely eligibility determinations
for special education and related services;" and that it
violated the Rehabilitation Act with respect to Subclass 4
through March 22, 2010 "because it demonstrated bad
faith and gross misjudgment with regard to its obligation to
provide smooth and effective transitions from Part C to Part
B services." DL, 194 F.Supp.3d at 96. All of
the obligations mentioned are IDEA obligations.
based on the above, the Court concludes that this case is at
its heart an IDEA case. It is about whether the District of
Columbia violated the IDEA by failing to identify, locate,
evaluate, or offer special education services, and/or failed
to ensure a smooth and effective transition for disabled
preschool children. The Rehabilitation Act claims and the
Court's various findings regarding them rest on top of
the IDEA claims. The Court found that the District violated
the Rehabilitation Act because it violated the IDEA
in several ways and because the District showed bad
faith or gross misjudgment. The Rehabilitation Act claims do
not exist completely independently of the IDEA claims.
Because the Court concludes that this case should be treated
as an IDEA case for the purposes of this fee dispute, it now
turns to whether the IDEA fee caps are applicable.