RUDOLPH CONTRERAS, United States District Judge.
Plaintiffs Jaden McNeil, Patrick Canavan, and Daniel McNeil ("Plaintiffs") successfully established through an administrative proceeding that the District of Columbia Public Schools ("the District") failed to provide Jaden McNeil with a free and appropriate public education in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. After the success of their administrative proceeding, Plaintiffs initiated an action in this Court to recover their attorney's fees and costs and were awarded $44,815.73 in legal fees and
Pending before the Court is Plaintiffs' motion requesting an award of attorney's fees and costs incurred in their previous fee action — commonly known as "fees-on-fees." Upon consideration of the memoranda and exhibits submitted in connection with this Motion, the opposition thereto, and Plaintiffs' reply, for the reasons set forth below, Plaintiffs' Motion is granted in part and denied in part. An appropriate Order accompanies this Memorandum Opinion.
Jaden McNeil, Patrick Canavan, and Daniel McNeil prevailed administratively on their IDEA claims. Plaintiffs then filed an action on November 23, 2014 seeking to recoup their legal fees and expenses from the underlying administrative IDEA proceeding, as permitted under 20 U.S.C. § 1415(i)(3)(B)(i)(I). See Am. Compl., ECF No. 3. Plaintiffs requested $52,343 in legal fees and $2,252.74 in expenses in that action, after amending their initial request to correct a billing error, and were awarded $44,815.73 in attorney's fees and the full amount of expenses. Order, Dec. 29, 2015, ECF No. 19. The Court arrived at the reduced fee award by setting the hourly rate at 75% of the United States Attorney's Office Laffey matrix rate
The instant motion was filed by Plaintiffs to recoup attorney's fees and costs that Plaintiffs incurred in their previous fee proceeding. Pls.' Mot. Att'y Fees (Pls.' Mot.) at 1-2, ECF No. 21. This is commonly known as "fees-on-fees" litigation. Plaintiffs request an award of $36,335.75 in legal fees
The IDEA creates an avenue for prevailing parties to recover attorney's fees, and also allows "[p]arties who prevail at the administrative level [to] recover fees-on-fees ... for time reasonably devoted to obtaining attorney's fees." Kaseman v. District of Columbia, 444 F.3d 637, 640 (D.C. Cir. 2006) (internal quotation marks omitted). The general paradigm for attorney's fees in this jurisdiction
Plaintiffs contend that $425 per hour, the rate charged by their counsel, is reasonable and supported by their counsel's billing practices, skill, experience, reputation, and the prevailing market rates. The District argues that the prevailing market rate in the community IDEA fee litigation is 50% of the Laffey matrix rate. Although both parties thus invite the Court to reopen its consideration of the prevailing rate, which was already established in the Court's prior memorandum opinion in this case, McNeil, 2015 WL 9484460, at *3-7, the Court declines to do so. Neither the Plaintiffs nor the District have adequately shown that the fee litigation and underlying proceeding are so distinct as to constitute different "markets" and justify different compensation. The Court thus instead continues to calculate the appropriate fee at 75% of the applicable Laffey rate.
Other courts in this jurisdiction have concluded that "a successful fee applicant seeking fees-on-fees [need not] demonstrate anew the reasonableness of her proposed rate for time expended in her successful fee application." Kelsey v. District of Columbia, No. CV 13-1956 (BAH), 219 F.Supp.3d 197, 205, 2016 WL 7017252, at *5 (D.D.C. Dec. 1, 2016) (quoting Jones v. District of Columbia, 153 F.Supp.3d 114, 123 (D.D.C. 2015)). This approach also finds support in the D.C. Circuit's recent guidance on fees-on-fees in the IDEA context. In Reed v. District of Columbia, the D.C. Circuit affirmed the district court judge's decision to award fees-on-fees at the same rate as attorney's fees on the original proceeding without "`enter[ing] the labyrinth' of determining the appropriate rate anew."
The District requests that this Court depart from its prior determination of the appropriate hourly rate in this case and instead use 50% of the Laffey matrix. See Def.'s Opp'n at 4 & n.2, ECF No. 22. (collecting cases in which fees-on-fees were calculated at 50% of the Laffey matrix rate). The Court finds the weight of authority from other courts in this jurisdiction unpersuasive, as the courts are split and do not agree on a consistent rate for either IDEA litigation or subsequent fee proceedings.
The Court thus decides against reopening the question of the appropriate hourly rate. Relitigating the issue would be illogical given that the initial fee proceeding and this proceeding are parts of the same action. To do so would also increase the burden on the courts and unnecessarily protract the litigation without advancing the goals of IDEA. See Kelsey, 219 F.Supp.3d at 202-03, 2016 WL 7017252, at *3 (noting that the availability of fee awards is essential to the goals of
Plaintiffs' recovery will thus be capped at 75% of the applicable Laffey rate, as it was in the previous fee proceeding. See McNeil, 2015 WL 9484460, at *6 ("Consequently, and in line with the authority of a substantial number of cases in this district, the Court agrees ... that the prevailing market rate for IDEA litigation is 75% of the Laffey matrix rates."). However, setting the ceiling at 75% of the Laffey rate does not dispose of the appropriate rate because Plaintiffs should not be overcompensated with an award of more than they were billed. A careful examination of the declarations in this case reveals that Ms. Savit actually billed Plaintiffs at $390 an hour
Although various circumstances can justify awarding attorney's fees at a rate above that actually billed to the client, none of the circumstances were demonstrated by Plaintiffs here. "The D.C. Circuit has recognized that, under a fee-shifting statute such as the IDEA, a plaintiff's attorney charging discounted hourly rate out of `public-spiritedness' may be entitled to fees at the higher market-prevailing rate." Dickens v. Friendship-Edison P.C.S., 724 F.Supp.2d 113, 120-21 (D.D.C. 2010). However, this requires a showing by the attorney that public-spiritedness was indeed the motivation behind the lower rate. Counsel here fails to provide "argument for or evidence of any public-spirited discount." Id. at 121. Thus, as in Dickens, "[t]hat [the attorneys] have billed below the market rate articulated in the Laffey Matrix does not — absent proof of the motivation behind this rate — entitle them to a higher award. Id. Thus, for [the attorneys], this Court will permit recovery at the rate actually charged to Plaintiffs." Id.; see also Makray v. Perez, 159 F.Supp.3d 25, 42 (D.D.C. 2016) ("[T]he D.C. Circuit has [] clarified that fee applicants seeking reimbursement at rates that are greater than those normally charged by their attorneys `must offer some evidence that [the applicant's attorneys] charge reduced rates for public-spirited or non-economic reasons'.... the D.C. Circuit left this determination `within the sound discretion of the district court.'" (quoting Covington v.
Here, Plaintiffs' counsel explained that she billed preexisting clients at the original, lower rate, but did not provide her reasons for doing so, much less assert that the reason was public-minded. Plaintiffs will thus be limited to recovering $390 per hour when that amount is less than 75% of the Laffey matrix rate. The Laffey matrix is updated each year, and new rates take effect on June 1 of any given year.
In large part, this result grants Plaintiffs the outcome they request because 75% of the Laffey matrix rate is near $390 for several of the years at issue and three of the paralegals billed below 75% of the Laffey matrix rate. To the extent that Plaintiffs are denied their requested award on the grounds that they requested more than the prevailing market rate, the Court finds their arguments for an increased award over the rate granted in the previous proceeding unpersuasive.
The Court next considers whether the total hours for which Plaintiffs seek compensation are reasonable. See Pls.' Mot. at 3-4, ECF No. 21; see generally 1st Invoices, ECF No. 21-3, Ex. 1B. The District only challenges those hours billed after this Court entered summary judgment in the initial fee action on December 29, 2015, arguing subsequent bills do not reflect time spent recovering the initial fees (fees-on-fees), but instead time spent pursuing the fee-on-fee action (fees-on-fees-on-fees). The Court does not apply such a mechanical
Although the District does not challenge fees generated prior to December 29, 2015, this Court must make an independent determination regarding whether the hours set forth in the invoice are justified. See McAllister v. District of Columbia (McAllister III), 160 F.Supp.3d 273, 279 (D.D.C. 2016) (citing Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)), appeal docketed, No. 16-7035 (D.C. Cir. Mar. 24, 2016). After reviewing the invoices, the Court concludes that the hours billed prior to December 29, 2015
Next, the Court turns to Plaintiffs' request for hours billed after December 29, 2015. The District argues that these hours are too "attenuated" from the underlying IDEA proceeding to be compensable. Def.'s Opp'n at 7, ECF No. 22. The Court, however, agrees with Plaintiffs that drawing artificial boundaries between phases of the fee litigation is unnecessary and contrary to the IDEA's intent. Pls.' Reply at 14-15, ECF No. 25.
The IDEA states 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) (2004). The statute enumerates several possible limitations on fees, including situations where the parents decline a better settlement offer, "unreasonably protract[] the final resolution of the controversy," or spend excessive resources "considering the nature of the action or proceeding." Id. § 1415(i)(3)(D)-(F). The IDEA does not restrict the award of fees based on whether the fees were generated during the underlying IDEA proceeding, or subsequent fee enforcement proceedings.
Garvin v. District of Columbia, 910 F.Supp.2d 135, 138-39 (D.D.C. 2012). Although those comments were directed toward the availability of fees-on-fees, the same arguments support the award of fees-on-fees-on-fees.
The Court agrees that these considerations militate against any flat prohibition on reimbursing the types of work performed by Plaintiffs' counsel here. The work Plaintiffs' counsel has performed to date is all aimed at the same goal — obtaining a fee award to cover the work performed since the Court's previous fee award. All of this work fits within the D.C. Circuit's stricture that "the court may award additional fees for time reasonably devoted to obtaining attorney's fees." Kaseman v. District of Columbia, 444 F.3d 637, 640 (D.C. Cir. 2006) (internal quotation marks omitted). Awarding the full amount is in accord with the fee-shifting provision's purpose of enabling plaintiffs to pursue meritorious IDEA cases that they could not otherwise afford to litigate.
The District does not identify any controlling precedent from the D.C. Circuit in support of its argument that fees-on-fees-on-fees are "too attenuated from the underlying fee petition to be compensable" and "not reasonably devoted to obtaining attorney's fees for the underling [sic] action." Def.'s Opp'n at 7-8. It does cite a variety of cases from outside the IDEA milieu
Although the Court does not find it appropriate to impose a categorical bar on recovering attorney's fees after collection efforts on the initial award are complete, it does agree about the need to "draw a line to avoid plaintiffs extending their claims for fees ad infinitum." F.S., 307 F.R.D. at 30 (quoting Magistrate Judge Kay's Report and Recommendation). In this case, granting Plaintiffs' requested relief will not extend the litigation or necessitate additional proceedings because Plaintiffs included updated invoices with their briefing and do not seek recovery beyond those invoices. Pls.' Reply at 18-19 (noting that Plaintiffs have "includ[ed] the fees and expenses incurred through the date they filed their motion on June 10, 2016 in the request they submitted that date" so that "[t]his case can end here without additional fee litigation"); see also 2d Invoices, ECF No. 25-2, Ex. 14A. This procedure will thus end all fee litigation on this matter here, and the Court need not address the propriety of seeking such an award in a separate proceeding.
In light of this Court's conclusion that Plaintiffs are not categorically barred from recovering attorney's fees during any particular portion of this proceeding, the Court returns to its "obligation to scrutinize the hours spent preparing the fee petitions to insure that the total is reasonable and that it does not represent a windfall for the attorneys." Elec. Privacy Info. Ctr. v. FBI, 80 F.Supp.3d 149, 162-63 (D.D.C. 2015) (citations omitted). The District does not object to any particular portions of the Plaintiffs' invoices. After considering the invoices itself, the Court finds that the hours spent by Plaintiffs' counsel were reasonable. See generally, 1st Invoices, ECF No. 21-3; 2d Invoices. The Court thus finds that Plaintiffs may recover for the additional 46.7 hours of attorney time and 3.75 hours of paralegal time
Finally, the District argues that the Plaintiffs' awarded fees should be further reduced by 25% because of the Plaintiffs' limited success in their initial fee petition. The District reaches the 25% figure by comparing the Plaintiffs' requested and achieved award in the first fee petition. See Def.'s Opp'n at 8-9 ("Plaintiffs sought $62,895.74 in attorney's fees and costs. The Court awarded $47,068.47 in attorney's fees and costs." (citation omitted)). Plaintiffs agree that some reduction is appropriate, but disagree with the District's calculation. Instead, Plaintiffs propose a 14% reduction of the hours billed in litigating the case through summary judgment and full payment of the legal assistant fees. Pls.' Mot. at 17. The Court, however, finds that it must calculate two separate reductions — the first based on Plaintiffs' degree of success in the initial fee action, to apply to fees-on-fees; and the second based on Plaintiffs' degree of success in the fee-on-fee action, and to apply to fees-on-fees-on-fees.
Even after multiplying the reasonable hours worked by a reasonable rate, a further adjustment to fees may be appropriate. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Hensley provides that this Court may also consider the "results obtained" in the underlying action because when "a plaintiff has achieved only partial or limited success, the product of hours reasonably expanded on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Id. at 434, 436, 103 S.Ct. 1933; see also Jean, 496 U.S. at 163 n.10, 110 S.Ct. 2316 ("Because [Hensley] requires the district court to consider the relationship between the amount of the fee awarded and the results obtained, fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation."). Where a prevailing party has achieved only partial success, this Court has discretion to exercise its equitable judgment to "identify specific hours that should be eliminated, or ... simply reduce the award to account for the limited success." Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933; see also McAllister III,
As to the Plaintiffs' initial fee request, the Court disagrees with the District's contention that Plaintiffs recovered only 75% of their requested relief. The District uses $62,895.74 as the Plaintiffs' request, but this number was the result of a billing error by Plaintiffs, which Plaintiffs quickly corrected. Pls.' Reply at 8, ECF No. 25. This Court noted in its prior Opinion that "the Court has no reason to doubt that the overbilling was anything other than an oversight and addresses the issue no further." McNeil v. District of Columbia, No. 14-1981 (RC), 2015 WL 9484460, at *10 (D.D.C. Dec. 29, 2015). Instead, Plaintiffs sought the corrected amount of $52,343 and were awarded $44,815.73, which represents approximately a 14% reduction. See id. Thus, Plaintiffs did achieve only partial success in the initial fee litigation, and this limited success is not consistent with the "excellent results" that would justify this Court awarding Plaintiffs a "fully compensatory fee." Hensley, 461 U.S. at 435, 103 S.Ct. 1933. The Court thus finds that the Plaintiffs' award here for time billed up until this Court granted summary judgment on December 25, 2015 should be reduced by 14% to reflect Plaintiffs' incomplete success in the initial fee action.
As to Plaintiffs' award for hours billed after December 25, 2015, a different reduction is necessary because those hours were advancing the fee-on-fee litigation. Plaintiffs' initial briefing here requested $21,564.50 as a fee-on-fee award for time billed up through December 25, 2015. Pls.' Mot. at 17. Under the above-mentioned calculation and as shown below, Plaintiffs will actually recover $19,858.78 for that time, which represents a reduction of approximately 8%. Plaintiffs' award for fees-on-fees-on-fees will thus be reduced by 8% to reflect Plaintiffs' limited success in their fee-on-fee petition.
The Court does not accept Plaintiffs' arguments that paralegal fees should not be subject to any reduction. Plaintiffs offer no authority for this proposition beyond stating that "the need for legal assistant work, and the types of legal assistant services rendered, did not depend upon the degree of success achieved in the main case." Pls.' Mot. at 17. Plaintiffs do not explain how this argument would not apply equally to the work of attorneys on an unsuccessful case. Plaintiffs identify no precedent supporting this position, nor could the Court locate any, and "simply reduc[ing] the award to account for the limited success" is clearly within the Court's discretion. Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933.
Giving effect to all of the above considerations, Plaintiffs will recover $36,940.20 in fees, as summarized in the following table, and $414.59 in costs:
Hours Rate Fee — Before June 1, 2015 —Ms. Savit's Attorney Work 7.05 $390 $2749.50Mathieu Antezana's Paralegal work 2.5 $75 $187.5 — From June 1, 2015 to December 29, 2015 —Ms. Savit's Attorney Work 49.7 $390 $19,383Ms. Savit's Paralegal Work 3.2 $115.50 $369.60Mathieu Antezana's Paralegal Work 2 $75 $150Isaac Nelson's Paralegal Work 3 $75 $225Subtotal Until December 29, 2015 $23,064.60Subtotal After 14% Reduction $19,835.56 — From December 30, 2015 to May 31, 2016 —Ms. Savit's Attorney Work 10 $390 $3900Elaine Avner's Paralegal Work 2.25 $95 $213.75 — After May 31, 2016 —Ms. Savit's Attorney Work 36.7 $390 $14,313Ms. Savit's Paralegal Work 1 $117.75 $117.75Elaine Avner's Paralegal Work .5 $95 $47.50Subtotal After December 29, 2015 $18,592Subtotal After 8% Reduction $17,104.64 Total Fees $36,940.20
For the foregoing reasons, Plaintiffs' Motion for an Award of Attorney's Fees and Costs shall be
A separate matrix, known as the LSI Laffey Matrix, or Enhanced Laffey Matrix, is adjusted for "increases in costs for legal services." Eley, 793 F.3d at 101-02. Neither party proposes using the LSI Laffey Matrix in this case, and the Court thus uses the phrase "Laffey matrix" exclusively to refer to the USAO matrix.
If Plaintiffs' counsel represented a client in an IDEA case in Virginia, the court would perform an analysis similar to the one at issue here to determine the prevailing rate in the community. See, e.g., JP ex rel. Peterson v. Cty. Sch. Bd. of Hanover Cty., 641 F.Supp.2d 499, 513-14 (E.D. Va. 2009) (finding that a rate of $350 an hour would be appropriate for an experienced lawyer in an IDEA case).
Plaintiffs also make a passing reference to "an award of pre- and post-judgment interest" without providing any analysis or authority. Pls.' Reply at 13. However, "it is not the obligation of this Court to research and construct the legal arguments available to the parties. To the contrary, perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are deemed waived." Johnson v. Panetta, 953 F.Supp.2d 244, 250 (D.D.C. 2013) (internal quotation marks and citations omitted). As this Court has previously noted, the application of prejudgment interest to IDEA cases is not straightforward. McAllister v. District of Columbia (McAllister II), 53 F.Supp.3d 55, 58 (D.D.C. 2014), aff'd, 794 F.3d 15 (D.C. Cir. 2015).
In addition, many of the affidavits by practitioners speak only to the rates that the attorneys charge, rather than what they were actually able to collect. See Eley, 793 F.3d at 101 (requiring evidence of "affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases." (emphasis added)); see Eig Decl. ¶ 5, ECF No. 21-4, Ex. 2 ("My current hourly rate for my special education services is $450 per hour."); Tyrka Decl. ¶¶ 5-6, ECF No. 21-5, Ex. 3 ("I charge hourly rates exactly matching those published in what is commonly known as `the Laffey matrix,'... I understand that most senior lawyers... charge comparable hourly rates."); Nabors Decl. ¶ 6, ECF No. 21-9, Ex. 7 ("We now set our firm rates according to the ... Laffey Matrix ..."); Hecht Decl. ¶¶ 6-7, ECF No. 21-13, Ex. 9 ("When I had paying clients, I charged the USAO Laffey Rate ... When I represent non-paying clients ... I charge the USAO Laffey Rate ... and request this rate through the Courts."); Houck Decl. ¶ 4, ECF No. 21-14, Ex. 10 ("I match my hourly rates to those in what is known as the USAO adjusted Laffey matrix."); Bergeron Decl. ¶ 8, ECF No. 21-15, Ex. 11 ("For administrative due process hearings I seek rates congruent with the rates prevailing in the community based on the USAO Laffey Matrix."); Moran Decl. ¶¶ 4, ECF No. 21-16, Ex. 12 ("[T]he firm's managing partner surveyed our peers and colleagues and determined that the vast majority charged at rates in line with the USAO Laffey Matrix. [Our firm] then adjusted our fees to assign with the USAO Laffey Matrix...").
On the rare declarations that do speak to amounts collected from paying clients, there is insufficient information on how many of the firms' clients are paying clients, the sophistication of the clients paying those rates, or the precise type and complexity of matters involved. Cf. McAllister v. District of Columbia (McAllister I), 21 F.Supp.3d 94, 107-08 (D.D.C.2014), aff'd, 794 F.3d 15 (D.C. Cir. 2015).
Finally, the Court notes that many IDEA cases involve the application of case-specific facts to a well-established legal framework, a task which is analogous to the work performed by court-appointed criminal defense lawyers for $129 an hour in non-capital cases. CJA Guidelines, Vol. 7, Part A, Ch. 2, § 230.16(A) (last updated Oct. 3, 2016), http://www.uscourts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-2-ss-230-compensation-and-expenses#a230_16. That defendants are able to secure competent counsel is the primary determinant of a market rate. Cf. Lewis v. Coughlin, 801 F.2d 570, 573, 576 (2d Cir. 1986) ("[A]n attorney's fee award should be only as large as necessary to attract competent counsel."). Of course, unlike in IDEA cases, court-appointed defense counsel receive payment regardless of the success of the representation.
This total also includes the following hours billed between June 1, 2015 and December 29, 2015 and reimbursed by reference to the 2015-2016 Laffey matrix:
See 1st Invoices at 1-20. The hourly rates used here were discussed supra Part III.B.
The invoices and filings in this case contain irregularities. See, e.g., 1st Invoices at 13 (showing that Ms. Savit billed 0.7 hours at the paralegal rate, but apparently multiplying that by Ms. Savit's attorney rate); 1st Invoices at 25 (indicating "NO CHARGE" for 1.5 hours spent in document preparation by Ms. Savit, but apparently including a charge). The Court suspects that these irregularities caused the parties and the Court to reach different totals for the hours worked in each category. See, e.g., Def.'s Opp'n at 6 (substantially agreeing with the Court's calculation here, but reaching a total of 53.7 instead of 49.7 hours worked by Ms. Savit between June 1, 2015 and December 29, 2015). The Court proceeds based on its independent examination of the invoices, and excluding hours marked as "NO CHARGE."
This total also includes the following hours billed after June 1, 2016 and reimbursed by reference to the 2016-2017 Laffey matrix:
See 1st Invoices at 1-20; 2d Invoices. The hourly rates were discussed supra Part III.B.