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James v. District of Columbia

United States District Court, District of Columbia

March 23, 2018





         Plaintiff Theresa James, acting on behalf of her minor granddaughter, V.J., seeks an award of attorneys' fees and costs under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., for her counsel's successful representation of V.J. in the instant litigation and in administrative proceedings. Plaintiff contends that she is entitled to $93, 676.78 in fees and costs. Defendant District of Columbia does not contest Plaintiff's status as a prevailing party under the IDEA or the number of hours spent by her counsel to represent V.J., but does assert that the proposed hourly rates for Plaintiff's counsel are not supported by adequate evidence and, therefore, are unreasonable. Defendant also challenges the reasonableness of the copying costs sought by Plaintiff in her fees petition. Defendant asks the court to award Plaintiff no more than $62, 821.63 in fees and costs.

         After considering the parties' submissions and the relevant law, the court grants in part and denies in part Plaintiff's Motion for Attorney Fees. The court awards attorneys' fees and costs to Plaintiff, calculated at an hourly rate of 75% of the United States Attorney's Office Matrix, in the amount of $75, 286.78.


         The court described the factual and procedural background of this case in its previous opinion, which resolved the parties' cross-motions for summary judgment and remanded for further administrative proceedings, and it need not repeat those details here. See generally James v. District of Columbia, 194 F.Supp.3d 131 (D.D.C. 2016). On remand, the Hearing Officer made several new findings and ordered relief in favor of Plaintiff's granddaughter, V.J., in a variety of forms, including a comprehensive psychological evaluation and speech-language evaluation, a revised Individualized Education Program, compensatory education services, and declaratory relief. Pl.'s Mot. for Fees & Costs, ECF No. 27 [hereinafter Pl.'s Mot.], at 3; see Def.'s Mem. in Opp'n to Pl.'s Mot. for Fees & Costs, ECF No. 29 [hereinafter Def.'s Opp'n], at 3; see also Pl.'s Mot., Ex. 1, ECF No. 27-2, at 10-11. Thus, Plaintiff succeeded in securing the relief that she sought for V.J. See generally Compl., ECF No. 1, at 3-4.

         Thereafter, on May 18, 2017, Plaintiff filed a motion requesting $93, 676.78 in attorneys' fees and costs. See generally Pl.'s Mot. Defendant District of Columbia opposed Plaintiff's motion on June 26, 2017, claiming that Plaintiff is not entitled to the full award that she seeks. See Def.'s Opp'n. Plaintiff's motion is now ripe for consideration.


         The IDEA provides “a fee-shifting provision entitling a prevailing party . . . to reasonable attorneys' fees.” Price v. District of Columbia, 792 F.3d 112, 113 (D.C. Cir. 2015) (internal quotation marks omitted). A “court, in its discretion, may award reasonable attorneys' fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i). An IDEA fee award “shall 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). If the court finds, however, “that ‘the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience, ' it ‘shall reduce . . . the amount of the attorneys' fees awarded.'” Eley v. District of Columbia, 793 F.3d 97, 99 (D.C. Cir. 2015) (alteration in original and emphasis omitted) (quoting 20 U.S.C. § 1415(i)(3)(F)(ii)).

         Because the IDEA “provides no further guidance for determining an appropriate fee award, ” id. at 100, the D.C. Circuit applies a “two-part framework” to determine whether an award of attorneys' fees is “reasonable” under the statute's fee-shifting provision, see Reed v. District of Columbia, 843 F.3d 517, 520 (D.C. Cir. 2016). This framework takes into account “(1) the ‘number of hours reasonably expended in litigation'; and (2) the ‘reasonable hourly rate' for the services provided.” Reed, 843 F.3d at 520 (quoting Eley, 793 F.3d at 100).

         The burden of establishing entitlement to a fee award under the IDEA rests with the fee applicant. See Id. The applicant must establish that she qualifies as a prevailing party, document the appropriate hours spent by counsel, and justify the reasonableness of the rate requested. See Id. at 520-21; cf. Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995) (explaining burden-shifting in the context of a fees petition under 42 U.S.C. § 1988). Once the applicant has shown that the claimed rate and hours are reasonable, the resulting sum is presumed to be a reasonable fee. See Covington, 57 F.3d at 1109. At that point, the defendant can challenge the request for attorneys' fees, but it must do so with “specific contrary evidence tending to show that a lower rate would be appropriate.” Flood v. District of Columbia, 172 F.Supp.3d 197, 203 (D.D.C. 2016) (quoting Covington, 57 F.3d at 1109-10).


         Plaintiff in this case seeks an award of fees for the services of two attorneys: Nicholas Ostrem and Douglas Tyrka. See Pl.'s Mot., Ex. 2, ECF No. 27-3 [hereinafter Billing Itemization]; Pl.'s Mot., Ex. 3, ECF No. 27-4 [hereinafter Ostrem Decl.]; Pl.'s Mot., Ex. 4, ECF No. 27-5 [hereinafter Tyrka Decl.]. Both Ostrem and Tyrka practice in Washington, D.C. Ostrem Decl. ¶ 10; Tyrka Decl. ¶¶ 11-12. Ostrem is a solo practitioner and represented Plaintiff in the administrative proceedings underlying this case. Ostrem Decl. ¶¶ 2, 15. Tyrka is the sole owner of the law firm Tyrka & Associates, LLC, and functions primarily as a solo practitioner. Tyrka Decl. ¶¶ 2, 42. From his billing records, it appears that Tyrka represented Plaintiff only in the federal court litigation. See Billing Itemization at 36-37. Plaintiff seeks an hourly rate of $395 for Ostrem and $516 for Tyrka. See Billing Itemization. These rates align with the rates for lawyers of comparable years of experience as reflected in the United States Attorney's Office (“USAO”) Attorney's Fees Matrix [hereinafter “the USAO Matrix”]. Pl.'s Mot. at 9; see Pl.'s Mot., Ex. 11, ECF No. 27-12 [hereinafter USAO Matrix]. The USAO Matrix is a matrix of hourly billing rates for attorneys and paralegals/law clerks maintained by the Civil Division of the U.S. Attorney's Office for the District of Columbia. See USAO Matrix at 1 n.1. The rates in the matrix “were calculated from average hourly rates reported in 2011 survey data for the D.C. metropolitan area, which rates were adjusted for inflation with the Producer Price Index-Office of Lawyers (PPI-OL) index.” Id. at 1 n.2.

         Defendant challenges only the reasonableness of the attorneys' fees and costs sought by Plaintiff. See Id. at 6, 18-19. Starting with the attorneys' fees, Defendant makes two basic objections. First, Defendant argues that Plaintiff has provided “insufficient evidence that the hourly rate in the USAO Matrix is the ‘prevailing market rate' for attorneys practicing IDEA law in the District, ” and that Plaintiff's counsel's invoice inappropriately relies on current rather than historical market rates. Id. at 1, 15-17. Defendant proposes that Plaintiff's attorneys' hourly rates should not exceed 75% of the USAO Laffey or USAO Matrix rates, respectively, depending on the time period in which the services were performed.[1] See Id. at 19-22. Second, Defendant asserts that the attorneys' hours were not “reasonably expended” because Plaintiff's counsel's invoice bills at an inappropriate rate for travel and for the preparation of her fees petition. Id. at 17. But that contention actually is no more than a plea that the court apply a reduced hourly rate to counsel's travel time and fees litigation work. See Id. at 13, 20. Thus, Defendant's two objections largely merge into one challenge to the reasonableness of the hourly rate. So, the court considers the two objections in tandem. Finally, Defendant also asserts that Plaintiff “cannot demonstrate the reasonableness of certain expenses.” See Id. at 17. The only expense Defendant challenges, however, is Plaintiff's rate for copying costs. Id.; see also Id. at 18-19 (arguing that $0.25 is excessive and $0.15 is a more appropriate rate).

         The court addresses each of these issues below, starting with the reasonableness of the hourly rate (and thus the overall attorneys' fee award), and then turning to the reimbursement rate for Plaintiff's copying costs.

         A. Reasonable Hourly Rate for Attorneys' Fees

         To be reasonable, an IDEA fee award must be “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C); see Id. § 1415(i)(3)(B)(i). “Whether an hourly rate is reasonable turns on three sub-elements: (1) ‘the attorney['s] billing practices, ' (2) ‘the attorney['s] skill, experience, and reputation' and (3) ‘the prevailing market rates in the relevant community.'” Eley, 793 F.3d at 100 (alterations in original) (quoting Covington, 57 F.3d at 1107). All that is in dispute here is the last, and perhaps most important, element: the prevailing market rates in the relevant community. See Def.'s Opp'n at 6-15.[2] As noted above, the parties not only disagree as to the prevailing market rate for the work performed in the underlying litigation and administrative proceedings, but they also disagree as to whether that rate differs for work performed in preparing the fees petition (so-called “fees-on-fees”), see Id. at 17-18, and whether the fee award should be calculated using current, as opposed to historical, rates, see Id. at 15-17.

         1.Prevailing Market Rate

         Determining the prevailing market rate is “inherently difficult.” Eley, 793 F.3d at 100 (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). To establish the prevailing market rate, a fee applicant must “produce satisfactory evidence-in addition to [her] attorney's own affidavits-that [her] requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id. at 104 (emphasis added) (quoting Covington, 57 F.3d at 1109).

         Such evidence can take one of two forms. See Lee v. District of Columbia, No. 15-cv-1802, 2018 WL 400754, at *6 (D.D.C. Jan. 12, 2018) (“[T]he Circuit [has] explained that litigants have relied on ‘two separate, but inter-related, approaches to providing evidence of prevailing market rate.'” (quoting Reed, 843 F.3d at 521)); see also Wimbish v. District of Columbia, 251 F.Supp.3d 187, 191 (D.D.C. 2017). “First, a litigant can show that IDEA litigation ‘fall[s] within the bounds' of ‘complex federal litigation' and therefore the USAO Laffey Matrix[, ] now the USAO Matrix, . . . presumptively sets forth the prevailing market rate for IDEA representation.” Lee, 2018 WL 400754, at *6 (quoting Reed, 843 F.3d at 521, 524-25). “Alternatively, a fee applicant can ‘establish the prevailing market rate by providing evidence of the fees charged, and received, by IDEA litigators.'” Id. (quoting Reed, 843 F.3d at 521). Importantly, this second method of establishing the prevailing market rate “is not conceptually linked to the Laffey Matrix.” Id. (quoting Reed, 843 F.3d at 521).

         Plaintiff invokes the second method of establishing the prevailing market rate, asserting that her requested rates for Ostrem and Tyrka are “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.”[3] See Pl.'s Mot. at 6 (internal quotation mark omitted); see also Id. at 6-14. To successfully make this showing, she must rely on more than her own attorneys' affidavits and/or the Laffey matrices. See Eley, 793 F.3d at 104; Reed, 843 F.3d at 521. Instead, she must supplement any such evidence with additional evidence, such as “surveys [that] update [the fee matrices]; affidavits reciting precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases; and evidence of recent fees awarded by the courts or through settlement to attorneys with comparable qualifications handling similar cases.” See Eley, 793 F.3d at 101.

         In this case, Plaintiff attaches to her Motion the following proof to justify the hourly rates she proposes: (1) her counsel's declarations; (2) an itemization of the tasks performed, hours expended, and rates charged by her counsel in this case; (3) declarations from five attorneys who practice special education law; (4) various attorney fees matrices; (5) a Statement of Interest filed by the United States in a different IDEA case, Eley v. District of Columbia, 201 F.Supp.3d 150 (D.D.C. 2016), which discusses the Laffey matrices; (6) a survey of attorneys who practice IDEA litigation; and (7) two exhibits submitted in support of a fees petition in another IDEA case in this district, Thomas v. District of Columbia, 908 F.Supp.2d 233 (D.D.C. 2012), which relate to Defendant's practices regarding the payment of attorneys' fees in IDEA cases. Plaintiff also asks the court to consider, by reference: (1) five IDEA cases in which courts awarded full USAO Laffey rates, two of which were decided after the Circuit's decision in Reed, see Pl.'s Mot. At 11; (2) statistics regarding the declining number of administrative complaints filed with District of Columbia Public Schools (“DCPS”), see Id. at 14; and (3) a report filed by the class-action monitor in Blackman v. District of Columbia, No. 97-cv-1629 (D.D.C.).

         None of this evidence, however, even when taken together, successfully establishes that the prevailing market rates for IDEA litigators in the District of Columbia are those reflected in the USAO Matrix.

         The court begins with the Plaintiff's declarations from other IDEA practitioners in the District, Charles Moran and Stevie Nabors, in which each lawyer says that he now charges the USAO Matrix rate. See Pl.'s Mot., Ex. 5, Decl. of Charles A. Moran, Esq., ECF No. 27-6 [hereinafter Moran Decl.]; Pl.'s Mot., Ex. 6, Decl. of Stevie Nabors, Esq., ECF No. 27-7 [hereinafter Nabors Decl.]; see also Pl.'s Reply Regarding Fees & Costs, ECF No. 32 [hereinafter Pl.'s Reply], at 4 n.2 (noting that the only declarations offered in support of rates earned on the market were from her counsel Tyrka and attorneys Moran and Nabors). This court recently confronted virtually identical declarations in Lee and concluded that Moran and Nabors had failed to demonstrate whether they charged-and received-the USAO Matrix rates from hourly-paying clients. 2018 WL 400754, at *5; see also Flood, 172 F.Supp.3d at 213 (“[E]vidence of rates typically ‘charged' by IDEA attorneys provides relatively little insight into the rate these attorneys could command in a more traditional market ...

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