BERYL A. HOWELL, United States District Judge.
This consolidated case was randomly referred to a Magistrate Judge for a report and recommendation on the defendant's Motion for Attorneys' Fees and Costs ("Def.'s Mot."), ECF No. 23. See Order, ECF No. 21; Referral to Magistrate Judge, ECF No. 22.
Specifically, the R & R recommended excluding certain charges with respect to the number of hours billed by defense
The R & R cautioned the parties that failing to file a timely objection within 14 days of the party's receipt of the R & R could result in their waiving the right to appeal an order of the District Court adopting the recommendations. See id. at 17. No objection to the R & R has been timely filed, and the time to file such an objection has lapsed, see Local Civil Rule 72.3(b), and, thus, any objections are deemed waived. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
The Court, upon independent consideration of the pending motion and the entire record herein, concurs with the recommendations made in the R & R. Accordingly, it is hereby
This is a final appealable order.
ALAN KAY, UNITED STATES MAGISTRATE JUDGE
This consolidated case was referred to the undersigned for full case management, which includes a Report and Recommendation on any dispositive motion. (02/06/2014 Order [4].)
On February 4, 2015, the trial court adopted the Report and Recommendation in a Memorandum and Order [19]. Now pending before the undersigned for a Report and Recommendation is a Motion for Attorneys' Fees and Costs ("Motion") [23] and Memorandum in support thereof ("Memorandum") [23-1] by Alice Kirksey-Harrington ("Kirksey-Harrington"); an opposition to the Motion ("Opposition") [24] by the District of Columbia ("the District"); and Kirksey-Harrington's reply ("Reply") [26]. Kirksey-Harrington requests from the District a total of $80,253.25 in attorneys' fees and costs incurred in connection with bringing an administrative proceeding pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. 1400, et seq. and defending against the District's civil action challenging the Hearing Officer's Determination. (Memorandum at 1, 10.) The District opposes the hourly rate applied by Kirksey-Harrington's counsel and asserts that the Court is not prohibited from reducing the attorneys' fees in this action. See generally Opposition.
Alice Kirksey-Harrington is the parent of D.K., her minor son who is a student with a disability. (Memorandum at 1.) The IDEA guarantees all children with disabilities a free appropriate public education ("FAPE"), 20 U.S.C. § 1400(d)(1)(A), and FAPE "is available to all children with disabilities residing in the State between the ages of 3 and 21,...." 20 U.S.C. § 1412(a)(l)(A). Defendant District of Columbia is a municipal corporation that operates the District of Columbia Public Schools System ("DCPS"). (Complaint [1] ¶ 3.)
The undersigned incorporates by reference the "Background" section set forth in the January 14, 2015 Report and Recommendation [18] that was adopted by the trial court. At the administrative level, the Hearing Officer permitted the student, D.K., to "remain with the Public/Private Partnership [Kennedy at Dunbar] until the conclusion of the 2013-2014 school year." (AR [8-1] at 14 [HOD].) The District challenged the Hearing Officer's decision but that decision was ultimately upheld by the trial court. (02/04/15 Memorandum and Order [19].) Kirksey-Harrington now moves for an award of attorneys' fees and costs.
Federal Rule of Civil Procedure 54(d)(2) provides in relevant part that a claim for fees and related expenses "must be made by motion" which should be filed "no later than 14 days after the entry of judgment" and "specif[ies] the statute ... entitling the movant to the award" and "state[s] the amount sought." Fed.R.Civ.P. 52(d)(2)(A) & (B)(i)-(iii).
The IDEA gives courts authority to award reasonable attorney's fees to the parents of a child with a disability who is the prevailing party. 20 U.S.C. § 1415(i)(3)(B). The court must initially determine whether the party seeking attorney's fees is the prevailing party. Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C.2010). See District of Columbia v. West, 699 F.Supp.2d 273, 278 (D.D.C.2010) (In considering a claim for IDEA attorney's fees, it is the court "not the hearing officer in the administrative proceeding, which determines prevailing party status....") (quoting District of Columbia v. Straus, 607 F.Supp.2d 180, 183 (D.D.C.2009)).
A party is generally considered to be the prevailing party if he succeeds "on any significant issue in litigation which achieves some of the benefit [] sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978)). The Supreme Court has indicated that the term "prevailing party" only includes plaintiffs who "secure a judgment on the merits or a court-ordered consent decree." Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't Health & .Human Resources, 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The Supreme Court therefore rejected the "catalyst theory" whereby a plaintiff would be a prevailing party if the lawsuit brought about the desired result through a voluntary change in the defendant's conduct. Id. at 605, 121 S.Ct. 1835. The Supreme Court instead determined that a prevailing party must obtain a "material alteration of the legal relationship of the parties." Id. at 604, 121 S.Ct. 1835 (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). The standards in Buckhannon apply to administrative hearings under the IDEA even though the relief granted is administrative as opposed to judicial. Abarca v. District of Columbia, Civil Action No. 06-1254, 2007 WL 1794101 *2 n. 1 (D.D.C. June 19, 2007).
"[T]he term prevailing party [is] a legal term of art that requires more than achieving the desired outcome; the party seeking fees must also have been awarded some relief by the court." District of Columbia v. Straus, 590 F.3d 898, 901 (D.C.Cir.2010) (internal quotations and citations omitted). In Straus, the Court of Appeals considered the following three factors to determine prevailing party status: 1) alteration of the legal relationship between the parties; 2) a favorable judgment for the party requesting fees; and 3) a judicial pronouncement accompanied by judicial relief. Id. at 901.
The plaintiff has the burden of establishing the reasonableness of any fee
The IDEA states that "[flees awarded under this paragraph shall 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). To demonstrate a reasonable hourly rate, the fee applicant must show: (1) an attorney's usual billing practices; (2) counsel's skill, experience and reputation; (3) the prevailing market rates in the community. Covington, 57 F.3d at 1107 (citations omitted.) The determination of a "`market rate' for the services of a lawyer is inherently difficult" and is decided by the court in its discretion. Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541. The burden is on the fee applicant to "produce satisfactory evidence — in addition to the attorney's own affidavits that the requested [hourly] rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Id.; see also Nat'l Ass'n of Concerned Veterans, 675 F.2d 1319, 1325 (D.C.Cir.1982) ("An applicant is required to provide specific evidence of the prevailing community rate for the type of work for which he seeks an award.") An attorney's usual billing rate may be considered the "reasonable rate" if it accords with the rates prevailing in the community for similar services by lawyers possessing similar skill, experience and reputation. Kattan by Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C.Cir.1993) (emphasis added).
Kirksey-Harrington prevailed at the administrative level by obtaining the educational placement she sought for D.K. and she further prevailed when the trial court upheld the Hearing Officer's decision. (Memorandum and Order [19].) In its Report and Recommendation [18], the undersigned recommended that Kirksey-Harrington be considered a prevailing party "for purposes of recovering attorney's fees in connection with the Due Process Hearing[.]" (Report and Recommendation [18] at 24.) The trial court concurred with the recommendation that Kirksey-Harrington is "considered the prevailing party for purposes of recovering attorneys' fees incurred in connection with the Due Process Hearing." (Memorandum and Order [19] at 3.) Accordingly, there is no dispute that Kirksey-Harrington is a prevailing party who is entitled to reasonable attorney's fees and costs.
The undersigned has reviewed the billing records submitted by Kirksey-Harrington's counsel and with respect to the number of hours billed, the undersigned recommends exclusion of certain charges. On May 22, 2013, Ms. Houck billed .5 hours for work performed on behalf of Kirksey-Harrington. (Motion, Exh. 3 [Houck Billing Records] [23-3] at 1.) The undersigned recommends exclusion of this charge on grounds that it is too far removed
Pursuant to 20 U.S.C. § 1415(i)(3)(F), a court may reduce the amount of attorneys' fees under certain circumstances such as where the parent or parent's counsel "unreasonably protract[s] the final resolution of the controversy" or the amount of fees "unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience" or the "time spent and legal services furnished were excessive considering the nature of the action or proceeding...." 20 U.S.C. § 1415(i)(3)(F)(i-iii). There is an exception to the aforementioned reduction "if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section." 20 U.S.C. § 1415(i)(3)(G). According to Kirksey-Harrington, "[t]his section refers to § 1415, which includes § 1415(f)(1)(B)'s requirement that DCPS convene a proper resolution session [and] DCPS failed to convene a proper resolution session when it did not include relevant IEP Team members and [thus] failed to make any meaningful effort to resolve [her] case." (Memorandum at 10.)
20 U.S.C. § 1415(f)(1)(B) discusses the statutory requirements for a resolution session; namely, that the LEA will "convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint" which includes a "representative of the agency who has decisionmaking authority on behalf of the agency" where the LEA is provided an opportunity to resolve the complaint, unless the parents and LEA agree in writing to waive the meeting. 20 U.S.C.§ 1415(f)(1)(B)(i)(i-iv). In the instant case, Ms. Twilah Anthony, D.K.'s educational advocate, testified that she attended the resolution meeting with Kirksey-Harrington and a District representative, and further, that the LEA representative was available by telephone but was not able to answer her questions about the student's placement at Dunbar. (AR 8-6] at 37-38 [Anthony testimony].) Kirksey-Harrington thus argues that the Court may not reduce her counsel's legal fees because the District "fail[ed] to properly convene a resolution session meeting that allowed [Kirksey-Harrington] to resolve her complaint and avoid a due process hearing." See Reply at 3.
Kirksey-Harrington's argument relies upon language from the Consent Decree in
The undersigned recommends that Kirksey-Harrington's argument that counsel's fees may not be reduced because of an alleged violation of her procedural rights under Section 1415 be denied. First, Kirksey-Harrington has not demonstrated that any violation of the resolution session requirements set out in the 2013 ADR agreement should be interpreted to bar the trial court from reducing attorneys' fees. Second, the administrative record indicates that the District complied with the statutory requirements of the IDEA in terms of making the LEA representative available at a resolution meeting. Third, it is arguable that Kirksey-Harrington waived the resolution session meeting. See Administrative Due Process Complaint Notice [8-1] at 20
Pursuant to the IDEA, federal courts may award "reasonable" attorney's fees, 20 U.S.C. § 1415(i)(3)(B)(i), which are based on rates "prevailing in the community ... for the kind and quality of services furnished." 20 U.S.C. § 1415(i)(3)(C). Kirksey-Harrington proffered evidence to establish her attorneys' experience, skill, and reputation in IDEA matters. (Memorandum at 5; Motion, Exh. 5 [Moran Declaration], Exh. 6 [Houck Declaration] and Exh. 7 [Nabors Declaration].) Kirksey-Harrington contends that her attorneys, Ms. Houck, Mr. Moran and Mr. Nabors, should be compensated at the respective rates of $460.00, $771.00, and $320.00/328.00 per hour for work performed during administrative and judicial proceedings. (Motion, Exhs. 3 & 4 [Billing Records].) Ms. Houck, who handled the administrative proceeding, applies the hourly rate that is set forth in the Laffey Matrix for the period of June 1, 2014 through May 31, 2015, for attorneys with 11-19 years of experience. (Motion Exh. 3 [Houck billing records]; Opposition Exh. 1 [Laffey Matrix 2014-2015].)
Mr. Moran and Mr. Nabors (who practice at the same law firm) explain that their firm "previously set its rates according to the Laffey matrix maintained by the United States Attorney's Office for the District of Columbia" until January 1, 2014, when [their hourly] rates were adjusted to the "LSI-based Laffey matrix." (Moran Decl. ¶ 9.) Practically speaking, this means that Mr. Moran's billing rate increased by $261.00 per hour as of January 1, 2014.
Counsel does not assert that the January 1, 2014 fees, mirroring LSI Laffey rates, were based upon any prevailing market rate analysis but instead, the fee increase was admittedly designed to "counter" certain practices by the District; namely, conditioning settlement offers on acceptance of nominal fees;
In her Motion, Kirksey-Harrington provides no evidence of the prevailing market rate for IDEA litigation in the District of Columbia other than attaching a copy of the LSI Laffey Matrix and submitting declarations by two of her counsel stating that the rates they are requesting are the rates they normally charge.
The Court of Appeals from this Circuit has recently opined that a plaintiff's evidentiary submission consisting of "the LSI Laffey Matrix, [a] declaration explaining the LSI Laffey Matrix and her lawyer's verified statement averring that he charged his paying clients the rates in the LSI Laffey Matrix" was insufficient evidence to demonstrate that her requested rates were the rates prevailing in the community for similar services. Eley v. District of Columbia, 793 F.3d 97, 104-05, 2015 WL 4153874 *6 (D.C.Cir.2015).
The District acknowledges that "the USAO Laffey Matrix has come to represent the prevailing market rates for representations in complex federal litigation" but argues that this litigation was a "simple, routine, straightforward administrative hearing, which raised uncomplicated questions of law." (Opposition at 11-12 (emphasis removed)). The District accordingly argues for an hourly rate equal to 75% of the USAO Laffey rates. (Opposition at 5, 13.) See generally Price v. District of Columbia, 792 F.3d 112, 117 (D.C.Cir.2015) (Brown, J., concurring) ("In deciding what constitutes reasonable attorneys' fees, courts have a tendency to err on the side of awarding too much rather than too little. However inflated fee awards are far from harmless; they produce windfalls to attorneys at the expense of public education.")
In an analysis of what constitutes a "reasonable" attorney's fee, courts may consider factors such as the complexity of the issues addressed during the IDEA administrative process, the work that was performed by counsel, and the manner in which the disputed issues were resolved. See, e.g., McAllister v. District of Columbia, 53 F.Supp.3d 55 (D.D.C.2014) (discussing reasons for awarding less than full Laffey rates and distinguishing circumstances where rates equaling or exceeding Laffey have been applied); Parks v. District of Columbia, 895 F.Supp.2d 124 (D.D.C.2012) (examining the record in the case with regard to the complexity of the proceedings, to determine whether fees equal to or near the Laffey rate apply).
In this case, the undersigned recommends the application of USAO Laffey Matrix rates with regard to counsel's work on this case, with the exception of counsel's February 25-March 2, 2015 charges relating to preparation of the motion for attorneys' fees.
Furthermore, the dispute underlying both the administrative proceeding and litigation in this Court involved determination of the student's educational placement, which is a rather complicated legal issue. In his conclusions of law, the Hearing Officer analyzed the meaning of an "educational placement" in the IDEA context. (AR [8-1] at 11-12[HOD].) The Hearing Officer noted that "the matter is more complicated because of the vagaries of what is a `placement'" and cited from some of the regulations and case law examining this issue. (Id.)
In accordance with the above recommendation regarding hourly rates, the undersigned recommends one minor adjustment to Ms. Houck's time billed for travel, which was billed at 50% of counsel's regular hourly rate. Counsel applies a travel rate of $230.00 per hour which should be adjusted to $225.00 per hour, thus totaling $450.00 for 2 hours. Similarly, Mr. Nabors' December 2, 2014 charges for travel to and from the hearing should be adjusted from $164.90 to $127.50 (which is half of the applicable Laffey rate of $255.00).
The District did not address the costs requested by Kirksey-Harrington. The undersigned recommends that Kirksey-Harrington be reimbursed for the costs of $696.10 billed by Ms. Houck,
The undersigned recommends that for the reasons stated above, Kirksey-Harrington's Motion for Attorneys' Fees and Costs [23] be granted in part and denied in part. In this case, Ms. Houck documented 98.6 hours at $460.00/hour and 2.0 hours of travel time at $230.00/hour, totaling
Mr. Nabors documented 1.4 hours billed at $320.00/hour and 90.4 hours billed at $328.00/hour and 1.0 hour billed at 50% of $328.00/hour for travel; Mr. Moran documented 5.0 hours billed at $771.00/hour and someone identified as "LE" billed 2.8 hours at $179.00/hour. The hours total 100.6 and the services subtotal is $33,707.40. The undersigned recommends a reduction in hours and hourly rates as follows:
The undersigned thus recommends that Kirksey-Harrington is entitled to attorney's fees totaling $68,903.00 and costs in the amount of $ 739.15.
The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
Date: July 30, 2015
