TIMOTHY L. BROOKS, District Judge.
Now before the Court is Plaintiff's Motion For Attorney's Fees and Costs (Doc. 185). Defendant Bentonville School District ("District") has filed a Response (Doc. 187), and Plaintiff has filed a Reply (Doc. 191). The Motion being ripe, and for the reasons stated below, the Court finds that Plaintiff's Motion should be
Plaintiff Brittany O ("Parent") brought this action on behalf of L ("Student"), her son. Student is a child with a disability as defined in 20 U.S.C. § 1401(3). During the 2012-13 school year, Student was enrolled as a kindergartner in the District. At the time of his enrollment, Student had been diagnosed with attention deficit hyperactivity disorder ("ADHD"). Student's first six weeks in the regular classroom were marked by numerous outbursts and behavior unfit for a traditional learning environment. On September 28, 2012, the District went through the formality of an accommodation conference — the pre-ordained outcome of which was a Section 504 plan (the "504 Plan"), which consisted of progressive interventions to address Student's behavior. But the 504 Plan was never implemented in the actual classroom. Instead, the District, Parent, and Student's therapist all agreed that Student should immediately transfer out of his traditional kindergarten classroom to Vista Health's Therapeutic Day Treatment program ("TDT") — which the District had contracted with to provide Student's education.
There was no discussion at the time of transfer regarding the need — much less a formal evaluation — for special education services under the IDEA.
Testing performed in March, 2013 by an occupational therapist revealed that Student suffered from multiple sensory processing disorders. A May 2013 neuropsychological evaluation ruled out cognitive dysfunction and autistic disorder, but identified additional diagnoses including oppositional defiant disorder and mood disorder. Despite this new information, and despite acknowledging that mere therapeutic interventions had failed to improve Student's behavior, the TDT's recommendation for the 2013-14 school year involved "a higher level of care" — in the form of Vista Health's residential treatment program. Doc. 187-2, p. 11-15.
On June 14, 2013, Parent presented the District with an IDEA special education referral form, supported by occupational therapy and neuropsychological evaluations. The District conducted a referral conference with Parent two weeks later. Despite Parent's request that Student be placed in a regular classroom for his first grade year, the District made the decision "to wait until the Student completed his treatment with TDT before attempting a transition back into school." Id. at 18-19. No decision was made with regard to conducting additional evaluations to determine the need for special education or related services." Id. at 16. Parent found this outcome unacceptable.
On August 19, 2013 — the first day of the school year — Parent provided new documentation to the District showing that Student had been formally diagnosed with a Serious Emotional Disturbance ("SED"). That same day, after conferring with its psychological examiner, the District prepared and signed a "referral form" and scheduled a special education referral conference, which was conducted two days later. Id. at 20. The District's position was that Student should begin first grade with the same 504 Plan as was in place during his kindergarten year. The District said it needed more information, and that further evaluations were necessary, to determine the appropriateness of adding special education services. In the meantime, however, the District proposed to implement a temporary Individualized Education Plan ("IEP"), whereby Student would receive special education services in several subject areas, in the general education setting, until such time as the District could conduct a functional behavioral assessment. Id. at 20-21. Parent objected to the District's plan, seeking instead to enforce her right to a due process hearing.
The due process complaint, filed on August 19, 2013, named the District, the Arkansas Department of Education ("ADE"), and the TDT as respondents. The complaint sought seven items of relief, namely:
(Doc. 185-4, p. 7). The Hearing Officer would later view Parent's filing of the complaint as a "stumbling block" to a settlement that should have been reached during the first week of school — all because the District's offer contemplated the use of its own personnel to perform the evaluation, whereas Parent demanded the right to select the examiner herself. (Doc. 187-2, p. 21).
This seemingly minor impasse eventually led to five days worth of testimony and exhibits, spread out over the course of two months. Afterwards, the Hearing Officer determined that the District had violated the IDEA's goals and purposes, and thus the denial of Student's right to a free and public education ("FAPE"). But he also found that the District had not done so intentionally, and that it had offered a significant proposal to correct its failures. In fact, the effect of the relief ultimately awarded by Hearing Officer was to require the District to immediately implement the proposal it had offered to Parent in August. Beyond that, the Order required that the District's designated examiner be someone that Parent found acceptable, too. And the District was also ordered to provide certain compensatory educational opportunities during the pendency of the evaluation process. (Doc. 185-5, pp. 30-31).
The Hearing Officer's Order was dated November 25, 2013. The District did not appeal the Hearing Officer's findings that it had violated the IDEA and/or that it had failed to provide Student with FAPE. On March 5, 2014, Parent brought suit in the Eastern District of Arkansas, alleging a plethora of federal and state causes of action against the District, the TDT, the ADE, and seven other persons who were sued in their official and individual capacities. One of those claims sought recovery from the District for Parent's attorney fees and costs incurred during the due process proceedings. All of Parent's federal claims were eventually dismissed — some pursuant to Rule 12, and others pursuant to Rule 56. But with specific regard to the attorney fee claim, it was dismissed by the district court because suit on that claim was not commenced within the IDEA's 90 day window to appeal (or seek fees related to) state administrative rulings in federal court.
Parent then appealed the district court's rulings. The Eighth Circuit found Parent's attorney fee claim to have been timely filed, and it therefore reversed and remanded that claim for further consideration by this Court. The district court's other dismissals were all affirmed. Below, the Court will first discuss the legal standards generally applicable to an award of attorney fees pursuant to the IDEA, and then it will explain how those standards should be applied to Parent's contentions here.
As the Eighth Circuit observed on appeal in this case, a prevailing parent in a state administrative IDEA proceeding may be awarded reasonable attorney fees. See Doc. 170-1, p. 2 (citing 20 U.S.C. § 1415(i)(3)(B)(i)(l)). On remand, this Court has been tasked with determining whether attorney fees and costs should be awarded. In excercising its discretion, the Court must determine two things. First, was Parent the prevailing party in the administrative proceeding below? "[A] plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, (1992). And second, if Parent achieved prevailing-party status, is the amount of attorney fees sought reasonable? "The amount of the fee, of course, must be determined on the facts of each case." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).
In calculating a reasonable fee, a number of factors should be considered:
Id. at 430 n.3.
"The most useful starting point [is to determine] the number of hours reasonably expended multiplied by a reasonable hourly rate." Id. at 433. "The party seeking an award of fees must submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Id. Hours that were not "reasonably expended" should also be excluded. Id. at 434. "Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary[.]" Id. In determining what constitutes a "reasonable hourly rate," the court must consider the "ordinary fee for similar work in the community." Gopher Oil Co., Inc. v. Union Oil Co. of Cal., 757 F.Supp. 998, 1008 (D. Minn. 1991), remanded in part, 955 F.2d 519 (8th Cir. 1992).
"The most important factor in determining what is a reasonable fee is the magnitude of the plaintiff's success in the case as a whole." Jenkins v. Mo., 127 F.3d 709, 716 (8th Cir. 1997) (citing Hensley, 461 U.S. at 436, and Farrar, 506 U.S. at 114). Sometimes a plaintiff may obtain mixed results, prevailing on some, but not all, of her claims. Where the issues on which the plaintiff lost are unrelated to those on which she won, the unrelated issues must be treated as if they were separate cases, and no fees can be awarded. If, however, the claims on which the plaintiff lost are related to those on which she won, the court may award a reasonable fee. Hensley, 461 U.S. at 435-36. If the plaintiff has won excellent results, she is entitled to a fully compensatory fee award, which will normally include time spent on related matters on which she did not win. If the plaintiff's success is limited, she is entitled only to an amount of fees that is reasonable in relation to the results obtained. Id. "A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Id. at 440.
The administrative due process complaint named the District, the TDT, and the Arkansas Department of Education ("ADE") as Respondents, against whom Parent alleged all manner of wrongdoing, and from whom she sought multiple forms of relief. After the Hearing Officer summarily dismissed all of the claims against the TDT and ADE and all of the non-IDEA claims against the District, the matter proceeded to an administrative hearing, which occurred over five separate days in September and October of 2013. In his November 25, 2013 ruling, the Hearing Officer summarized and made findings with respect to two issues:
In the course of his ruling, the Hearing Officer addressed the competing merits presented by each side. As to the 2012-13 kindergarten year, on the one hand, the Hearing Officer explained the District's facially apparent reasonableness in placing Student at the TDT. After all, the disruptive behavior was severe, threatening, and repetitive to the point of adversely affecting the learning environment for other students in the classroom. Not to mention the fact that both Parent and her son's therapist were in agreement with this plan. But on the other hand, the Hearing Officer explained why the hastily prepared 504 Plan was not a substitute for the assessment of Student's "unique needs for special education intervention in the regular classroom prior to removal to a more restricted setting." (Doc. 187-2, p. 24). The Hearing Officer further expressed considerable concern about the District's subsequent lack of involvement and assessment of Student's educational progress and evolving needs.
As to the 2013-14 first grade year, the Hearing Officer made detailed findings of additional information and diagnoses that began to surface in the Spring of 2013. The District was found to be (inexcusably) ignorant of Student's sensory and neurological disorders, because it had failed to properly supervise Student's educational process. Consequently, the District failed to identify the need to evaluate how these disorders impacted Student's need for special education services. To make matters worse, the TDT — to whom the District had effectively outsourced its educational responsibilities — had likewise failed to recognize the need for further evaluations. In June 2013, the parties met in a request-for-referral conference wherein Parent provided extensive information to support her position that Student be evaluated for a return to the traditional school environment. But the District was not persuaded to take further action, instead siding with the TDT's recommendation that Student remain under the same 504 Plan.
Ultimately, the Hearing Officer resolved the substance of both fact questions in Parent's favor and ordered the District to implement the same plan that it had proposed to Parent on August 21, 2013 — i.e., two days after receiving Parent's demand for a due process hearing. In ordering this relief, however, the Hearing Officer chided Parent and her counsel for unreasonably protracting the administrative proceedings. The Hearing Officer also opined that Parent had "thwarted [the District's] efforts by not agreeing with the District's suggested IEP or their choice of an evaluator." Id. at 30.
In light of the above facts, the Court finds Parent to be the prevailing party at the administrative level for the following reasons: (1) the Hearing Officer determined that the District violated the IDEA and failed to provide Student with FAPE, and (2) the administrative Order legally mandated the District to take specific action on Student's behalf. While it is true that the extent of Parent's success is relatively modest when measured against the District's initial proposal, the Court is persuaded — largely because the District failed to offer a formal evaluation after its meeting with Parent in June of 2013 — that the District would not have taken further action in the absence of Parent's filing of a formal complaint. The Court will therefore view the unnecessarily protracted nature of the proceedings and Parent's marginal amount of success as two of several factors it must consider when determining the reasonableness of the fee award.
On March 5, 2014, more than 90 days after the issuance of the Hearing Officer's Final Order, Parent filed suit in the United States Court for the Eastern District of Arkansas, where the ADE is headquartered. The federal lawsuit, as subsequently amended (Doc. 10), pleaded seven causes of action, including:
All seven of Parent's claims were dismissed at the district court level. In specific regard to the attorney fee claim, it was dismissed as being untimely filed. On further appeal, however, the Eighth Circuit found that Parent's claim for attorney fees and costs was not time barred. On remand, this Court has now deemed Parent the prevailing party at the administrative level. Thus, Parent has ultimately prevailed at the district court level, too — but only to the extent that she vindicated her right to petition for an award of attorney fees and costs. As to each and every other claim litigated in district court, Parent did not prevail. Moreover, based on its review and intimate knowledge of all of the pleadings in this case, the Court finds that the prosecution and defense of the six dismissed claims accounts for almost the entirety of the time and resources expended in the district court portion of the litigation, overall.
Accordingly, Parent is entitled to an award of fees and costs reasonably incurred at the district court level to enforce her entitlement to fees and costs incurred at the administrative level — during the due process hearing. To be clear, Parent has stated that she does not seek fees or costs attributable to her failed pursuit of the six other causes of action that she raised, but ultimately lost, in district court.
In the course of ruling on early-stage dispositive motions, the Honorable J. Leon Holmes, United States District Judge for the Eastern District of Arkansas, dismissed both the substantive and attorney fee components of Parent's IDEA claims as untimely. After dismissing some of Parent's other claims as legally improper, Judge Holmes transferred venue of the remaining claims to the undersigned in the Western District of Arkansas — where the school district is located. Thereafter, this Court dismissed the remainder of Parent's claims and causes of action on Summary Judgment. See Docs. 164, 165. Parent then appealed the dismissal of all dismissed claims. The Eighth Circuit found that the IDEA claim for attorney fees was not time-barred, and consequently reversed the dismissal of that claim. The Court affirmed the dismissals of Parent's remaining claims on appeal. Parent is therefore entitled to fees and costs reasonably incurred at the Circuit level — but only with respect to the single issue on which she prevailed.
For the reasons explained above, Parent prevailed at the administrative level and is entitled to an award of fees. Parent's counsel has submitted an affidavit and itemized billing statement in support of her Motion seeking $59,130.00 in attorney fees.
Having considered Parent's Motion and supporting documents, the Court finds her request for nearly $60,000.00 in fees to be excessive and unreasonable — primarily because of the excessive hours and unnecessarily protracted manner in which Parent's counsel elected to litigate the due process claims, and because of Parent's relatively marginal success. Parent's fee request must therefore be reduced. See 20 U.S.C. § 1415(i)(3)(F); Hensley, 461 U.S. at 440. In arriving at this conclusion, the Court has identified and weighed the relevant factors and offers the following points of explanation.
"The most useful starting point [is to determine] the number of hours reasonably expended multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. Plaintiff seeks an award based on 237.12 hours of attorney time at the rate of $250.00 per hour, for a total of $59,280.00. In its close review of the billing itemization and excerpts of the administrative record included with the briefing, the Court is skeptical that counsel actually spent what amounts to six 40-hour work weeks on this single case during the three-month period of time that it was litigated. Regardless, for the reasons explained below, 237 hours is unreasonable here. As to the hourly rate, the Court would first observe that it has customarily approved hourly rates in the range of $200.00 to $300.00 for comparable civil rights litigation over which it presides, based on varying degrees of counsel's experience, responsibility, and proficiency. The Court finds counsel's requested rate of $250.00 per hour to be generally reasonable, although it does so with reservations.
"In calculating a reasonable fee amount, courts should exclude hours that were not `reasonably expended,' such as excessive or redundant hours . . ." Id. at 434. "A party in a civil rights action is not entitled needlessly to accumulate exorbitant legal fees with the expectation that the losing party will be called upon to pick up the entire tab." Planned Parenthood of Minn. v. Citizens for Cmty. Action, 558 F.2d 861, 871 (8th Cir. 1977).
Aside from the issue of whether counsel's stated hours are accurate for lodestar purposes, the Court finds that it was not reasonably necessary to spend 237 hours litigating the disputed issues in this case. In fact, given how quickly the District offered a resolution proposal, there is good reason to question whether Parent is entitled to any fee award. While it is true that the District had rejected a special needs evaluation in June 2013, the District changed its position on August 19, 2013, when Parent met with the 504 Coordinator to discuss Student's SED diagnosis. (Doc. 185-5, p. 19). Upon reviewing the new information, the District's psychological examiner "determined that a special education referral was in order." Id. By the end of the day on August 19th, a notice of referral conference form had been signed by the school's principal, and a meeting with Parent was scheduled for the very next day. Id. At the referral conference (which was actually conducted on August 21st), the District sought to maintain the status quo of Student's placement — but only while it acquired additional supporting information and conducted a multi-faceted comprehensive evaluation. The District explained that these materials were necessary to prepare a final IEP, including the scope of any special education services to be provided. In the interim though, the District proposed a temporary IEP, including special education services in numerous subject areas, which Student would receive until such time as a functional behavior assessment could be completed. Id. at pp. 20-21. Inexplicably, Parent refused to sign the consent forms necessary for the District to obtain Student's TDT records, and she further "objected to the District's plan, announcing that she had [already] filed for a due process hearing."
Parent's due process complaint raised unnecessary claims against unnecessary parties, all of which were summarily dismissed.
The hearing itself was unnecessarily protracted — consuming five days spread over two months — largely because of Parent's unnecessary and cumulative development of facts.
"The most important factor in determining what is a reasonable fee is the magnitude of the plaintiff's success in the case as a whole." Jenkins v. Mo., 127 F.3d 709, 716 (8th Cir. 1997) (citing Hensley, 461 U.S. at 436). "If the plaintiff's success is limited, [s]he is entitled only to an amount of fees that is reasonable in relation to the results obtained. Id. (citing Hensley, 461 U.S. at 440). The award of fees to a prevailing party is intended to "encourage prompt resolution of meritorious claims and to discourage unnecessary litigation. This policy rationale . . . is served by declining to award fees when litigation yields only relief that in all probability was attainable without the time and expense of adversarial proceedings." Peter v. Jax, 187 F.3d 829, 837-38 (8th Cir. 1999) (citing State of N.H. v. Adams, 159 F.3d 680, 687 (1st Cir. 1998)).
Parent did not prevail on several dismissed claims. And while her IDEA claims were central to the due process hearing, there is simply not much daylight between what the District had proposed on August 21st and what the Hearing Officer ordered on November 25th. Plaintiff's limited "success" can only be measured by: (1) the subjective value of having veto power over the District's choice of evaluator, and (2) the cost of not less than eight hours of compensatory education per week, during the two-month period that was necessary to conduct Student's evaluation. (Doc. 185-5, at p. 30-31). These measures are certainly important and meaningful, but the remedy awarded (beyond what the District had already agreed to provide) is relatively minor and considerably disproportionate to the time and expense incurred by all parties. The Court agrees with the Hearing Officer's finding that Parent "thwarted" the District's remediation efforts "by not agreeing with the District's suggested temporary IEP or their choice of an evaluator." (Doc. 185-5, p. 30). In other words, Parent's dogged pursuit of litigation "yielded only relief that in all probability was attainable without the time and expense of adversarial proceedings." Peter, 187 F.3d at 837-38.
Now having considered the relevant factors, the Court must determine an appropriate method of reduction. "There is no precise rule or formula for making these [fee] determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified." Hensley, 461 U.S. at 436-37; see also 20 U.S.C. § 1415(i)(3)(F).
Parent seeks $59,130.00 in fees, based on 236.52 hours of time,
As explained above, Parent was not the prevailing party on any substantive cause of action at the district court level. However, she did ultimately establish that her request for attorney fees at the administrative level was timely filed in the district court. "Where the issues on which [Parent] lost are unrelated to those on which [s]he won, the unrelated issues must be treated as if they were separate cases and no fees can be awarded." Hensley, 461 U.S. at 434-35.
Parent's Motion lumps together counsel's time at the district court level with her time at the Circuit level. In total, she seeks an award of $41,342.50 in billable hours. This consists of 42.1 hours of attorney time billed prior to 2016 at the rate of $250.00 per hour, and 88.05 hours at her "new" rate of $350.00 per hour.
Looking at counsel's billing during the pre-remand proceedings in district court, the Court makes the following observations and allowances:
The allowances for pre-remand tasks total 18.65 hours. At $250.00 per hour, Parent is entitled to attorney fees totaling $4,662.50 for work during this phase of the proceedings.
The sole issue on remand from the Eighth Circuit was whether Parent was entitled to an award of fees and costs under the IDEA. Looking at counsel's billing during the post-remand proceedings to district court, the Court makes the following observations and allowances:
The allowances for post-remand tasks total 28 hours. At $250.00 per hour, Parent is entitled to an award of attorney fees totaling $7,000.00 for her work in district court.
On appeal to the Eighth Circuit, Parent had sought to reverse the district court's dismissal of her: (i) IDEA claims, (ii) § 1983 claims against the ADE, and (iii) § 1983 claims against the District for its alleged constitutional and statutory civil rights violations. The appeal related to her IDEA claims had two components; one based on substantive violations, the other predicated on Parent's argument that her attorney fee claim was timely filed in the district court. Parent's success on appeal was limited to the court's ruling that her attorney fee claim was indeed timely. Accordingly, Parent is entitled to receive compensation for her counsel's time spent preparing her argument as to the timeliness of her attorney fee claim in district court. However, she is not entitled to any fees based on her total time spent on the appeal. Hensley, 461 U.S. at 434-35.
Parent seeks an award of $22,995.00 in attorney fees incurred on appeal. In support, she attaches time records as Exhibit A-2. (Doc. 185-3). There she lists two entries in April 2016 totaling 4.8 hours related to researching and preparing the Notice of Appeal, and 2.3 hours on May 6, 2016 for preparing the notice of appendix. Then, in one single entry dated August 1, 2016, counsel claims a total of 58.6 hours for "Research[ing] and fil[ing] 8
"The party seeking an award of fees must submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433. Counsel's testimony that her hours are supported by "contemporaneous time records of time spent . . . in this litigation," (Doc. 185-1 at ¶ 20), is nakedly belied by her bulk entry of 58.6 hours for a generically described task attributed to a single day. Counsel's documentation of her hours is wholly inadequate. Morever, the Court simply does not believe that the time claimed was spent on the limitations issue exclusively. Counsel's fee request must therefore be substantially reduced. The Court estimates that approximately one-fourth of Parent's appeal as a whole was concerned with the limitations issue.
Parent seeks an award of costs incurred at the administrative level in the sum of $3,396.58, and costs incurred at the district and Circuit levels in the combined sum of $3,083.37. In making these claims, Parent's counsel affirms that she "reviewed the costs and removed entries for costs not recoverable or otherwise not reasonably expended." (Doc. 185-1, ¶¶ 9, 11). Unfortunately, counsel failed to identify and brief exactly which categories of costs are properly recoverable to a prevailing party in an IDEA action.
In total, Parent seeks to recover $6,479.95 in costs. The District says that many of these expenses were either unnecessary or should be reduced based on Parent's limited overall success. With regard to taxable costs under § 1920, will Court will allow $1,140.00 for fees paid to the clerk of court and for witness and service fees. The Court will also allow $1,324.37 for exemplification expenses — the full amount requested for imaging and copying of Parent's due process hearing disclosures and exhibits — because the Court cannot discern whether these materials were necessary to the Hearing Officer's rulings or not. And for similar reasons the Court will allow $1,902.30 for copies of the appendix and Parent's appeal brief.
With regard to costs not taxable under § 1920, Parent seeks to recover, among other things, $1,276.41 in mileage (including four separate trips for administrative hearings, one trip to attend an IEP conference, and one trip to attend the Magistrate Judge's settlement conference). The Court will reduce this expense by one-third, and only allow $850.94, because it finds that at least two trips for extra hearing days were the result of unnecessarily protracted litigation. Parent is also seeking $494.88 for lodging expenses related to her attendance at the due process hearings. The Court will reduce that amount by one-half, and only allow $247.44, because it believes the hearing was unnecessarily protracted. The remaining line item expenses are found to be unrelated or unnecessary. Therefore, in total, the Court will allow $5,465.05 to be recovered as costs.
For the reasons explained above, the Court hereby awards Parent attorney fees in and costs as follows:
