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Jones v. District of Columbia

United States District Court, District of Columbia

February 15, 2019

ANISSA JONES, mother of the minor child D.M., Plaintiff,



         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.


         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).


         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 ...

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