MEMORANDUM OPINION
BERYL
A. HOWELL, CHIEF JUDGE
The
plaintiff, Anissa Jones, seeks attorney's fees and costs,
totaling $87, 738.93, pursuant to the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1415(i)(3)(B)(i)(1), from the defendant District of
Columbia (“the District”) for her counsel's
services over thirty months, from November 2014 through June
2018, in preparing for, substantially prevailing at, and
implementing relief granted by a due process administrative
proceeding, as well as implementing additional relief awarded
in the plaintiff's successful appeal in this Court.
Pl.'s Mot. Atty's Fees & Costs (“Pl.'s
Mot.”), ECF No. 51; Pl.'s Suppl. to Pl.'s Mot.
for Atty's Fees & Costs (“Pl.'s Suppl.
Mot.”), ECF No. 52. The parties have already reached a
settlement regarding the amount of attorney's fees
incurred litigating the plaintiff's IDEA claims in this
Court, see Notice of Settlement, ECF No. 40;
Pl.'s Resp. to July 26, 2017 Order to Show Cause
(“Pl.'s Resp. OTSC”) at 1, ECF No. 42, but
the District objects to the hourly rate at which the
plaintiff seeks reimbursement for the remaining fees incurred
litigating her IDEA claims administratively and implementing
the relief awarded.
Specifically,
the District contends that the reimbursement rate should be,
at most, 75% of the hourly rate provided in the
Attorney's Fees Matrix for 2015-2019, prepared by the
Civil Division of the U.S. Attorney's Office for the
District of Columbia (“USAO Matrix”), rather than
the full hourly rate set out in that matrix, see
Def.'s Opp'n Pl.'s Mot. Atty's Fees
(“Def.'s Opp'n”) at 5-18, ECF No. 53,
with additional across-the-board reductions, up to complete
denial of any fees, because the plaintiff achieved only
“partial success” and allegedly protracted the
litigation by rejecting the District's settlement offer,
see Def.'s Opp'n at 18-20.
The
Magistrate Judge to whom this matter was referred recommended
that plaintiff's motion be granted in part and denied in
part, after agreeing with the District's position on the
reimbursement rate of 75% of the USAO Matrix, compounded by a
further across-the-board reduction of 10% based on the degree
of success obtained, and proposing that the plaintiff be
awarded a total of $63, 191.87 in fees and costs.
See Magistrate Judge's Report and Recommendation
(“Atty's Fees R&R”) at 1, 26, ECF No. 55.
At the same time, the Magistrate Judge rejected the
District's argument that no additional fees should be
paid after finding that the District never made a valid
settlement offer to the plaintiff. Id. at 29-30.
The
plaintiff timely filed objections, see Pl.'s
Objections to the October 23, 2018 Report and Recommendation
of Magistrate Judge Harvey (“Pl.'s Obj.”),
ECF No. 58, which were fully briefed as of January 22, 2019.
For the reasons set forth below, the plaintiff's
objections to the Magistrate Judge's recommendation are
sustained, the plaintiff's motion is granted, in
substantial part, and the plaintiff is awarded $87, 543.03 in
attorney's fees and costs.[1]
I.
BACKGROUND
The
plaintiff is the mother of D.M., a District of Columbia
Public Schools (“DCPS”) student, who is eligible
for special education and related services under the IDEA as
a child with a disability, Emotional Disturbance
(“ED”). Pl.'s Mot., Ex. 1 (Hearing Officer
Determination, issued June 22, 2015 (“2015 HOD”))
at 1, ECF No. 51-3;[2] see also Mag. J. Report &
Recommendation, dated Jan. 31, 2017 (“2017
R&R”) at 2, ECF No. 30 (granting part of additional
relief plaintiff requested in appeal from 2015 HOD). The
facts underlying the administrative action and implementation
efforts, for which the plaintiff now seeks attorney's
fees and costs, have been fully set out in both the 2015 HOD
and the 2017 R&R and thus are only briefly summarized
below.
A.
First Administrative Action
D.M.
was evaluated for various behavioral and learning
disabilities as early as 2011 and found eligible for special
education under the IDEA in 2012, when D.M. was in the second
grade. 2015 HOD at 12 ¶ 33; 2017 R&R at 2. His
initial Individualized Education Program (“IEP”),
developed in April 2012, required that D.M. be provided with
16 hours per week of specialized instruction outside of
general education, plus substantial additional behavioral
support services. 2015 HOD at 12 ¶ 35. Although he
apparently progressed under that IEP regime, id. at
13 ¶ 40, his IEPs were subsequently modified to reduce
the hours of special education, id. at 14-15 ¶
49; 2017 R&R at 4-5. By the 2014-2015 school year, when
D.M. was in the fifth grade, he was placed in a general
education classroom, over the plaintiff's objection, 2015
HOD at 25 ¶ 108; 2017 R&R at 5. D.M.'s behavior
began a marked decline reflected by D.M. being aggressive,
hyperactive, and disruptive with suicidal ideation. See,
e.g., 2015 HOD at 25 ¶¶ 109-118; id.
at 30 ¶ 144; id. at 31 ¶ 149; id.
at 43 ¶¶ 196-97.
D.M.'s
behavioral decline prompted the plaintiff and her counsel,
after counsel's retention in November 2014, to make
repeated requests in late 2014 through April 2015 for DCPS to
reevaluate D.M. and provide him with additional services,
plus a dedicated aid. See, e.g., id. at 27
¶¶ 119-123; id. at 33 ¶ 159;
id. at 40 ¶¶ 180-81; id. at 44
¶ 203. DCPS made no changes to his IEP, id. at
34 ¶¶ 163-169; id. at 39 ¶ 177, until
April 24, 2015, when five hours per week of specialized
instruction-far less than the original IEP that had proven
successful- and a dedicated aid were added to his IEP,
id. at 46 ¶¶ 212-213. The dedicated aid
was subsequently removed, however, after approximately one
month, in May 2015, over the plaintiff's objection, and
D.M. was essentially excluded from instruction by being
placed with a Spanish teacher when this teacher had no class,
the janitor, or another non-teacher adult. Id. at
50-51 ¶¶ 236-241.
On the
same date of the IEP modification, April 24, 2015, the
plaintiff filed a Due Process Complaint (“DPC”)
under the IDEA, claiming that DCPS denied D.M. a Free
Appropriate Public Education (“FAPE”) due to
several enumerated actions and inactions by D.M.'s school
and DCPS. Id. at 2. Following a two-day due process
hearing, held on June 5 and 15, 2015, id. at 4, at
which the plaintiff introduced 56 exhibits and presented the
testimony of three witnesses, the hearing officer concluded
that, as a matter of law, DCPS failed to provide D.M. with a
FAPE as required by the IDEA, id. at 71 ¶ 50,
and ordered, inter alia, that (1) D.M.'s IEP be
amended to provide that “[a]ll of the Student's
academic instruction [] be specialized instruction provided
in the outside of general education setting, ”
id. at 72 ¶ 1(a); (2) D.M.'s
“instruction [] be provided in a small classroom (i.e.
not to exceed 12 students), with a low ratio of students to
adults, ” id. at 73 ¶ 1(b); (3) D.M. be
escorted “[a]t all times during the school day [] in
all non-classroom environments, ” id. at 73
¶ 1(c); (4) the plaintiff inform DCPS of “which
one (1) of the” requested “Independent
Educational Evaluations (“IEEs”) Petitioner
wishes to obtain” and then DCPS “shall issue to
[Plaintiff] an IEE letter authorizing [Plaintiff] to obtain
the requested IEE, ” id. at 73-74 ¶¶
3-4; (5) the IEP Team “develop a [behavior intervention
plan (“BIP”)] for” D.M., id. at 74
¶ 6; and (6) DCPS convene and revise D.M.'s IEP as
appropriate, id. at 74-75 ¶¶ 6-7. The 2015
HOD did not grant all the relief requested by the plaintiff,
such as placing D.M. at a private school or other appropriate
full-time special education program; requiring DCPS to fund
multiple, rather than just one, IEEs for comprehensive
evaluations comprising psychological, speech/language,
occupational therapy, assistive technology and other testing;
and requiring more prompt revisions to the IEP. Id.
at 6-7.
Despite
the 2015 HOD's direction that all of D.M.'s academic
instruction be specialized instruction outside of a general
education setting, see Id. at 72 ¶ 1(a),
according to the plaintiff, the District “did not do
this, ” and instead, in July 2015, revised D.M.'s
IEP to provide only 20, not “all, ” hours of
specialized instruction “in a mainstream middle school,
” Pl.'s Reply in Supp. Mot. Atty's Fees
(“Pl.'s Reply”) at 6, ECF No. 54; see
also Pl.'s Mot., Ex. 2 (Hearing Officer
Determination, issued April 29, 2017 (“2017
HOD”)) at 13, ECF No. 51-4 (noting “DCPS'
failure to provide in his IEP for all academic instruction to
be provided outside the general education setting contravened
the requirements of the June 22, 2015 HOD”). According
to the plaintiff, D.M. “deteriorated so quickly from
July 2015 through November 2015” that “in
November 2015 DCPS finally agreed to place [him] at …
a full time special education school, ” Pl.'s Reply
at 6, as the plaintiff had requested six months earlier at
the 2015 due process hearing, when that request had been
denied. Unfortunately, D.M. was expelled from that special
education school in the spring of 2016, before the end of the
school year, id. at 7.
B.
Federal Suit Seeking Review of 2015 Hearing Officer
Determination
On
September 16, 2015, before DCPS acceded to the
plaintiff's request to place D.M. in a full-time special
education school, the plaintiff initiated this case seeking
review of the 2015 HOD. See generally Compl., ECF
No. 1. The Magistrate Judge to whom the case was referred
issued a report, dated January 31, 2017, recommending that,
in addition to the relief granted in the 2015 HOD, DCPS be
further ordered to “(1) fund an IEE of D.M. comprised
of as many assessments as necessary to evaluate D.M.'s
suspected areas of disability and to determine an appropriate
educational program for him, as determined by the independent
professional conducting the IEE and consistent with the
standards for evaluations prescribed by the IDEA and its
regulations; (2) conduct a new FBA [Functional Behavioral
Assessment] of D.M., ” and (3) “hold an IEP Team
meeting to consider the results of the IEE and FBA within 30
days of their completion.” 2017 R&R at 38. Less
than one month later, this Court adopted, in full, the
recommendations made in the Magistrate Judge's 2017
Report, to which neither party had lodged any objection.
See Order, dated Feb. 22, 2017 (“2017
Order”) at 2, ECF No. 31.
C.
Implementation of 2017 Order and Second Administrative
Action
During
the pendency of the plaintiff's civil suit, from
September 16, 2015 to February 22, 2017, D.M.'s
behavioral problems persisted with “significant
disruptive behavior and non-compliance, ” 2017 HOD at 7
¶ 6, leading to incidents that resulted in his arrest
and a hospital admission, id. at 8 ¶ 7. The
plaintiff requested a therapeutic residential placement for
D.M. in May 2016, id. at 9 ¶ 10, but DCPS
instead placed D.M. in a therapeutic day school, id.
at 9 ¶ 11, where D.M. was chronically truant,
id. at 10 ¶ 14.
On
February 17, 2017, shortly before issuance of the 2017 Order,
plaintiff filed a second due process complaint seeking
“to secure DCPS funding for a residential educational
placement” for D.M. Id. at 14. After a due
process hearing on the second due process complaint, held on
April 13, 2017, id. at 2, the hearing officer
denied, without prejudice, the plaintiff's request for
DCPS to fund a residential placement for D.M. and ordered an
independent psychological assessment “specifically [to]
assess Student's need for a residential placement,
” id. at 27. Due to D.M.'s deterioration
“socially, emotionally, academically, and behaviorally,
” Pl.'s Resp. OTSC at 2, however, the psychological
assessment required under the 2017 HOD and the additional
IEEs and FBA's required under the 2017 Order could not be
conducted, Id. at 3.
In the
fall of 2017, a psychologist was able to gather sufficient
information to “issue[] a report recommending placement
in a residential school, ” Pl.'s Pts and Auth.
Supp. Pl.'s Mot. for Atty's Fees and Costs
(“Pl.'s Mem.”) at 2, ECF No. 51-2, a
placement the plaintiff had requested in May 2016, if not
earlier, and reiterated in January 2017, see
Pl.'s Reply at 7.[3] In November 2017, DCPS agreed to a
residential placement for D.M. See Jt. Status Rpt.
(Jan. 9, 2018) at 1, ECF No. 45. When D.M. became agitated
and non-compliant at the proposed placement, however, the
plaintiff decided to homeschool him. Id. In April
2018, the parties scheduled an IEP meeting, Jt. Status Rpt.
(Apr. 10, 2018), ECF No. 48, and in June 2018, the parties
advised that D.M. had begun attending a private school in the
Baltimore area, Jt. Status Rpt. (June 6, 2018), ECF No. 50.
Shortly
thereafter, the plaintiff filed the pending motion for
attorney's fees and costs, resolution of which would
“obviate the need to continue to maintain this
action.” Jt. Status Rpt. (June 6, 2018). This is the
plaintiff's second motion for attorney's fees and
costs, after the plaintiff's first motion seeking
reimbursement for fees and costs incurred in appealing the
2015 HOD in this Court, see Pl.'s Mot. For
Attorney's Fees and Costs (“Pl.'s First Fee
Mot.”) at 1 n.1, ECF No. 37, was settled by the
parties, see Not. of Settlement, ECF No. 40. As
noted, the pending motion seeks fees and costs incurred for
30 months of work on the administrative action underlying the
2015 HOD and subsequent implementation of the 2015 HOD and
2017 Order. Pl.'s Mot., Ex. 3 (invoice for professional
services charged from Nov. 13, 2014 to June 11, 2018
(“Pl.'s Invoice”)), ECF No. 51-5; Pl.'s
First Fee Mot. at 1 n.1.
II.
LEGAL STANDARD
When a
party objects to a Magistrate Judge's Report and
Recommendation, the Court conducts a de novo review.
See Fed. R. Civ. P. 54(d)(2)(D); Baylor v.
Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939,
947 (D.C. Cir. 2017) (“[W]e join a number of our sister
circuits in requiring that motions for attorney's fees be
reviewed de novo if referred to a Magistrate Judge
and properly objected to.”). The 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). Attorney's fees under the IDEA are not
limited to time spent in, and preparing for, adversarial
proceedings alone. “Rather, an attorney can recover for
work when there is ‘a clear showing that the time was
expended in pursuit of a successful resolution of the case in
which fees are being claimed.'” Baylor v.
Mitchell Rubenstein & Assocs., P.C., 735 Fed.Appx.
733, 736 (D.C. Cir. 2018) (per curiam) (quoting Nat'l
Ass'n of Concerned Veterans v. Sec'y of Def.,
675 F.2d 1319, 1335 (D.C. Cir. 1982)).
Although
the “IDEA provides relatively little guidance to either
the courts or litigants regarding how, precisely, these
‘reasonable attorneys' fees' are to be
calculated, ” Reed v. District of Columbia,
843 F.3d 517, 520 (D.C. Cir. 2016), the statute requires that
such 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, ” 20 U.S.C.
§ 1415(i)(3)(C), and disallows any “bonus or
multiplier, ” id. In addition, the statute
authorizes “courts to reduce awards of attorneys'
fees if they ‘unreasonably exceed[] the hourly rate
prevailing in the community for similar services by attorneys
of reasonably comparable skill, reputation, and
experience.'” Reed, 843 F.3d at 520
(quoting 20 U.S.C. § 1415(i)(3)(F)(ii)).
In
applying a statutory fee-shifting provision allowing recovery
of “a reasonable attorney's fee as part of the
costs, ” the “guiding light” is “the
lodestar method [which] produces an award that
roughly approximates the fee that the prevailing
attorney would have received if he or she had been
representing a paying client who was billed by the hour in a
comparable case.” Perdue v. Kenny A., 559 U.S.
542, 550-51 (2010) (emphasis in original). The lodestar
approach applies in IDEA cases using a “two-part
framework that 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 v. District of Columbia, 793 F.3d 97, 100 (D.C.
Cir. 2015)). To meet the first part of this framework,
“fee applicants must document the hours spent
litigating in IDEA proceedings in which they
prevailed.” Id.
For the
second part of the framework, the D.C. Circuit instructs that
the appropriate “reasonable hourly rate” may be
determined upon consideration of 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
Eley, 793 F.3d at 100) (quoting Covington v.
District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir.
1995))). The third sub-element regarding the prevailing
market rate may be addressed by fee applicants in IDEA cases
by relying “on two separate, but inter-related,
approaches, ” id. at 521: (1)
“attempting to demonstrate that IDEA cases fall within
the bounds of th[e] type of litigation” that use the
so-called “Laffey Matrix, ” which the
D.C. Circuit has characterized as “apply[ing] only to
‘complex federal litigation, '” id.;
and (2) “providing evidence of the fees charged, and
received, by IDEA litigators, ” id.
When
seeking reasonable attorney's fees, “the ‘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. 894, 897 (1984)). 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.”
Covington, 57 F.3d at 1109-10 (quoting Nat'l
Ass'n of Concerned Veterans v. Sec'y of Def.,
675 F.2d at 1326).
III.
DISCUSSION
The
District does not dispute that the plaintiff is “a
prevailing party who is the parent of a child with a
disability, ” 20 U.S.C. § 1415(i)(3)(B)(i), and,
as such, is generally entitled to reimbursement of reasonable
attorney's fees and costs under the IDEA, see
generally Def.'s Opp'n. Nor does the District
dispute any of the charges submitted by the plaintiff's
counsel, or her billing practices. See Pl.'s
Reply at 5 (“Defendant does not challenge any specific
line items on Plaintiff's invoice for attorney fees and
costs such as entries that required an unreasonable amount of
time, entries for unreasonable/unrelated activities, or for
any other reason.”). Instead, the District contests the
use of the current USAO Matrix as the measure of the
prevailing market rate for IDEA cases, contending that a
reasonable rate is “75% of the USAO Attorney's fees
matrix rate.” Def.'s Opp'n at 1. Further, the
District argues that any fee award to plaintiff should be
reduced by some additional, unspecified amount due ...