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DL v. District of Columbia

United States District Court, District of Columbia

August 25, 2017

DL, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         This 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.

         Plaintiffs 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.

DL, 860F.3dat719.

         In 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 follows:

IDEA Claims through April 6, 2011

IDEA Claims from April 6, 2011 to present

Rehabilitation Act Claims through March 22, 2010

Rehabilitation Act Claims from March 22, 2010 to present

Subclass 1

Plaintiffs

Plaintiffs

Plaintiffs

Defendants

Subclass 2

Plaintiffs

Defendants

Plaintiffs

Defendants

Subclass 3

Plaintiffs

Plaintiffs

Plaintiffs

Defendants

Subclass 4

Plaintiffs

Plaintiffs

Plaintiffs

Defendants

         On May 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.

         The 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.

         III. LEGAL STANDARDS

         A. Legal Framework for Determining Fee Awards

         This 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 scheme:
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, infra.

         B. Fee Caps

         In 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.

         Omnibus Appropriations Act, Pub. L. No. 111-8, § 814, 123 Stat. 524 (2009). The 2009 rider did not provide a fee cap for future cases.

         However, the D.C. Circuit found that "the 'evident intent' of the [2009] 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.

         IV. ANALYSIS

         A. Fee Caps

         Because 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.

         1.IDEA vs. Rehabilitation Act

         The 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).

         In 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.

         Thus, 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.

         2. ...


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