Ashima Reed v. DC , 843 F.3d 517 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2016 Decided December 9, 2016
No. 15-7119
ASHIMA REED, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLEE
Consolidated with 16-7009
Appeals from the United States District Court
for the District of Columbia
(No. 1:14-cv-01887)
Douglas Tyrka argued the cause and filed the briefs for
appellants.
Richard S. Love, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With him on the brief were
Karl A. Racine, Attorney General, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General.
Before: TATEL, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Circuit Judge TATEL.
EDWARDS, Senior Circuit Judge: The purpose of the
Individuals with Disabilities Education Act (“IDEA”) is “to
ensure that all children with disabilities have available to
them a free appropriate public education.” 20 U.S.C. §
1400(d)(1)(A). The statute contains a fee-shifting provision
that permits parents and legal guardians to recover reasonable
attorneys’ fees and costs if they prevail in certain, statutorily
prescribed proceedings. See 20 U.S.C. § 1415(i)(3)(B). In
calculating a fee award, courts take into account both the
“number of hours reasonably expended in litigation” and the
“reasonable hourly rate” for the services provided, which is
determined in part by reference to the prevailing market rate
for attorneys’ services. Eley v. District of Columbia, 793 F.3d
97, 100 (D.C. Cir. 2015) (quoting Save Our Cumberland
Mountains, Inc. v. Hodel (SOCM), 857 F.2d 1516, 1517 (D.C.
Cir. 1988) (en banc)).
Appellants, parents and legal guardians of children with
disabilities who prevailed in IDEA proceedings, filed suit in
the District Court seeking reasonable attorneys’ fees and costs
related to these proceedings. Appellants also sought an award
of “fees-on-fees” for work done in connection with their
pursuit of fees for the IDEA proceedings. The District Court
granted both requests, but did not award Appellants the full
amounts requested.
Appellants contend that the District Court erred in
excluding certain hours spent at “settlement conferences”
from their fee award. Appellants also assert that the District
Court abused its discretion in refusing to find that the
3
“prevailing market rate” for attorneys’ fees in IDEA cases is
aligned with the Laffey Matrix, a fee matrix originally
compiled to reflect the prevailing market rate for “complex
federal litigation.” See Laffey v. Nw. Airlines, Inc. (Laffey I),
572 F. Supp. 354, 372 (D.D.C. 1983), aff’d in part, rev’d in
part on other grounds, Laffey v. Nw. Airlines, Inc. (Laffey II),
746 F.2d 4 (D.C. Cir. 1984), overruled in part on other
grounds, SOCM, 857 F.2d 1516.
We agree with Appellants that the District Court should
not have excluded certain hours billed as “settlement
conferences” from its initial fee award calculation. However,
we hold that the District Court did not abuse its discretion in
finding that Appellants had failed to demonstrate that their
IDEA matters fall within the category of “complex federal
litigation” to which the Laffey Matrix applies. Therefore, the
District Court was not obliged to follow the Laffey Matrix in
calculating attorneys’ fees due Appellants. Appellants also
forfeited two claims raised for the first time on appeal: (1)
that the affidavits they submitted in this case independently
demonstrate a prevailing IDEA market rate that aligns with
the Laffey Matrix; and (2) that the rates awarded by the
District Court are insufficient to attract competent counsel
and, thus, are too low. These claims were not clearly raised
with the District Court, so we decline to address them on
appeal. Finally, Appellants did not submit any evidence
demonstrating that they should receive a different market rate
for fees-on-fees and, therefore, the District Court did not
abuse its discretion in applying the same rate when
calculating both the initial fee award and subsequent fees-on-
fees award.
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I. BACKGROUND
A. The Individuals with Disabilities Education Act
As noted above, the purpose of IDEA is “to ensure that all
children with disabilities have available to them a free
appropriate public education that emphasizes special
education and related services designed to meet their unique
needs.” 20 U.S.C. § 1400(d)(1)(A). IDEA provides a variety
of mechanisms for students to receive the assistance they
require. This assistance includes an “impartial due process
hearing…conducted by the State educational agency or by the
local educational agency” after a party has filed a complaint,
20 U.S.C. § 1415(f)(1)(A), pertaining to “any matter relating
to the identification, evaluation, or educational placement of
[a] child, or the provision of a free appropriate public
education to such child,” § 1415(b)(6)(A). Parents or legal
guardians who prevail in such proceedings are permitted to
bring suit in district court to request the award of “reasonable
attorneys’ fees” and related costs. 20 U.S.C. §
1415(i)(3)(B)(i).
Though fee applicants “bear[] the burden of establishing
entitlement to an award,” IDEA provides relatively little
guidance to either the courts or litigants regarding how,
precisely, these “reasonable attorneys’ fees” are to be
calculated. Eley, 793 F.3d at 100 (quoting Covington v.
District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995)).
The statute notes only that fee awards “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), and permits 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,
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reputation, and experience.” 20 U.S.C. § 1415(i)(3)(F)(ii).
Nonetheless, in interpreting the dictates of IDEA’s fee-
shifting provision, this court has typically relied on 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. See Eley, 793 F.3d at
100 (quoting SOCM, 857 F.2d at 1517). Both parts of this test
are at issue in this case.
To establish an entitlement to a particular fee award, fee
applicants must document the hours spent litigating in IDEA
proceedings in which they prevailed. See id. (quoting
Covington, 57 F.3d at 1107). IDEA, however, imposes a
number of limitations on the hours for which prevailing
parties can seek recompense. See 20 U.S.C. § 1415(i)(3)(D)(i)
–(iii). Of particular salience in this case, fee applicants are
traditionally barred from recovering fees associated with
hours spent in “resolution sessions.” 20 U.S.C. §
1415(f)(1)(B); § 1415(i)(3)(D)(ii)–(iii); see D.D. ex rel. Davis
v. District of Columbia, 470 F. Supp. 2d 1, 2 (D.D.C. 2007).
In addition to providing an accounting of the hours spent
on a particular IDEA claim, fee applicants must establish the
reasonable hourly rate at which these hours should be
reimbursed in order to prevail on a request for a fee award.
Eley, 793 F.3d at 100. “Whether an hourly rate is reasonable
turns on three sub-elements: (1) ‘the attorney[’s] billing
practices,’ (2) ‘the attorney[’s] skill, experience, and
reputation’ and (3) ‘the prevailing market rates in the relevant
community.” Id. (quoting Covington, 57 F.3d at 1107). We
have noted that determining the third of these sub-elements,
the prevailing market rate, is “inherently difficult.” Id.
(quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).
Fee applicants in IDEA cases have relied on two separate, but
6
inter-related, approaches to providing evidence of prevailing
market rate. We explain below.
First, litigants have claimed that IDEA litigation should
be accorded the same rates laid out in the aforecited “Laffey
Matrix.” Two variants of the Laffey Matrix, intended to
update the original matrix to reflect current market rates, are
potentially implicated by such requests: (1) the USAO Laffey
Matrix, which is maintained by the United States Attorney’s
Office for the District of Columbia and adjusts the rates set
forth in the original Laffey Matrix to “account for inflation by
using the Consumer Price Index for All Urban Consumers of
the United States Bureau of Labor Statistics”; and (2) the
Legal Services Index (LSI) Laffey Matrix, which “uses the
Legal Services Index of the Bureau of Labor Statistics to
adjust for inflation.” See Eley, 793 F.3d at 101. Because the
Laffey Matrix and subsequent revisions to this matrix apply
only to “complex federal litigation,” fee applicants have
focused their efforts on attempting to demonstrate that IDEA
cases fall within the bounds of this type of litigation. See id. at
105; Laffey, 572 F. Supp. at 371–72.
Second, fee applicants have tried to establish the
prevailing market rate by providing evidence of the fees
charged, and received, by IDEA litigators. While practitioners
appear to frequently state that their rates are identical to some
version of the Laffey Matrix, this means of establishing the
“prevailing market rate” is not conceptually linked to the
Laffey Matrix. See Price v. District of Columbia, 792 F.3d
112, 117 (D.C. Cir. 2015) (Brown, J., concurring) (noting that
absent a finding that representation in “IDEA administrative
due process hearings” commands the same rates as complex
federal litigation, “Laffey Matrix rates are irrelevant to the
prevailing-rate determination”).
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B. The Proceeding Below
Appellants in this case are the parents and legal guardians
of six students who prevailed in separate due process
hearings. On November 10, 2014, they filed suit in the
District Court requesting the award of “reasonable fees and
costs” associated with their IDEA claims. The District Court
referred the case to a Magistrate Judge for full case
management. Appellants then submitted a Motion for
Summary Judgment, attaching a summary of the hours
expended litigating these cases and materials intended to
demonstrate that the prevailing market rate for IDEA cases
was consistent with the rates set forth in the LSI Laffey
Matrix. In response, the District of Columbia filed a Cross-
Motion for Summary Judgment.
The Magistrate Judge issued a Report and
Recommendation which found, in relevant part, that certain
hours spent by Appellants’ counsel traveling to and
participating in “settlement conference[s]” should be excluded
from Appellants’ fee award because such meetings are not
recompensable under the IDEA. Judicial Appendix (“JA”)
369, 370, 371, 373, 374. The Magistrate Judge also rejected
Appellants’ requests for the application of a prevailing market
rate equal to “enhanced Laffey Matrix or Laffey Matrix rates,”
JA 379, and proposed that all but one Appellant be awarded
“three-quarters of the [USAO] Laffey rates,” JA 384; see JA
376–84.
Appellants objected to the Magistrate’s Report on two
grounds. First, Appellants argued that IDEA cases
constitute “complex litigation.” Therefore, according to
Appellants, the Magistrate Judge erred in declining to apply
the rates laid out in the Laffey Matrix in calculating the fees
due in this case. In support of this claim, Appellants
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submitted six affidavits from lawyers averring that IDEA
litigation in which they had been involved was no less
complex than other cases in which the courts have applied
the Laffey Matrix in calculating attorneys’ fees. Second,
Appellants argued that, in calculating the fees due, the
Magistrate Judge erred in removing hours spent by counsel
in “settlement conferences.”
On September 28, 2015, the District Court granted in part
and denied in part both Appellants’ and Appellee’s Motions
for Summary Judgment, awarding Appellants $89,158.60 in
attorneys’ fees and costs. The District Court held that it would
“adopt the Magistrate Judge's recommendation to exclude
hours billed for ‘settlement conferences’” from the fee award.
Reed v. District of Columbia, 134 F. Supp. 3d 122, 134
(D.D.C. 2015). The court noted that Appellants bore the
burden of establishing that these conferences were not
statutorily non-reimbursable “resolution sessions” and
claimed that, because Appellants had failed to point to
anything specific in the record to demonstrate that these
meetings were not in fact resolution sessions, they had fallen
short of this requirement. Id.
The District Court also rejected Appellants’ request that
the “enhanced Laffey matrix” be used to determine the
reasonable hourly rate for their counsel’s efforts during the
underlying administrative proceedings. The court stated that
while fee matrices have been recognized as a “‘useful starting
point in calculating the prevailing market rate’ for attorneys’
services,” Appellants had not provided sufficient evidence to
demonstrate that they should be awarded rates in line with this
matrix. Id. at 127 (quoting Eley, 793 F.3d at 100); see also id.
at 129–30. Specifically, the District Court held that
Appellants had failed to demonstrate that IDEA matters
constituted “complex federal litigation,” the category of cases
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to which the Laffey Matrix presumptively applies. After
disposing of Appellants’ evidence in support of the use of full
Laffey rates in this case, the District Court cited the “vast
number of district court cases” in this circuit that had found
that “75% of Laffey rates approximates the prevailing market
rate for IDEA administrative proceedings” and applied this
hourly rate to calculate Appellants’ fee award. Id. at 131; see
131–32.
Shortly after the District Court issued its original fee
award, Appellants filed a request for fees-on-fees, fees
associated with attempting to secure the attorneys’ fees and
costs incurred in the underlying IDEA due process hearings.
See JA 494. Appellants argued that the LSI Laffey Matrix
reflected the prevailing market rate for this type of work. JA
499. In support of this claim, they provided affidavits stating
that “only two law firms,” including Appellants’ lawyer’s
firm, accepted cases in the “specialized field of IDEA fees
litigation” and claiming that Appellants’ “attorneys
customarily charge” and receive payment from clients in line
with this rate. Id. The District Court, however, held that it
would abide by its earlier determination that the appropriate
prevailing market rate in this case was 75% of the USAO
Laffey rate, declining to “enter the labyrinth” of determining
the appropriate rate anew. Memorandum Opinion and Order
at 2, JA 534. It then granted Appellants’ motion in part,
awarding them $19,048.30 of the requested $62,862.65. Id. at
1, JA 533.
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II. ANALYSIS
A. Standard of Review
This court reviews fee awards for abuse of discretion and
will not upset a district court’s hourly rate determinations
“absent clear misapplication of legal principles, arbitrary fact
finding, or unprincipled disregard for the record evidence.”
Eley, 793 F.3d at 103 (quoting Kattan ex rel. Thomas v.
District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993)).
“This limited standard of review is appropriate in view of the
district court’s superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what
essentially are factual matters.” Id. at 104 (quoting Covington,
57 F.3d at 1110). Nonetheless, this court will examine de
novo the question of whether the “district court applied the
correct legal standard.” Id. (quoting Conservation Force v.
Salazar, 699 F.3d 538, 542 (D.C. Cir. 2012)).
B. Resolution Sessions
Appellants are correct that the District Court abused its
discretion in excluding certain hours classified as “settlement
conferences” in their billing records from their fee award.
IDEA makes clear that hours spent in “resolution sessions”
are nonreimbursable and, thus, should not be included in a
prevailing party’s fee award. See 20 U.S.C. § 1415(f)(1)(B); §
1415(i)(3)(D)(ii)–(iii); D.D. ex rel. Davis, 470 F. Supp. 2d at
2. However, the statute delineates a number of requirements
for a meeting to constitute a “resolution session”: it must be
attended by the parents who have submitted a complaint, “the
relevant member or members of the [Individualized Education
Program (“IEP”)] Team who have specific knowledge of the
facts identified in the complaint,” and a “representative of the
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[local educational] agency who has decisionmaking authority
on behalf of such agency.” 20 U.S.C. § 1415(f)(1)(B)(i).
Appellants claim that the “settlement conferences” at
issue here were, as the District Court reported, “sham
resolution sessions,” which fell short of the standards
prescribed by IDEA. Reed, 134 F. Supp. 3d at 134; Br. for
Appellants at 20–22. This is uncontested. Therefore,
Appellants contend that the hours spent in these settlement
conferences are reimbursable pursuant to IDEA’s fee-shifting
provision and should not have been excluded from their fee
award. Br. for Appellants at 20–22. The District Court
dismissed this argument, noting that Appellants bore the
burden of proving “their entitlement to compensation” and
stating that Appellants’ evidence, which the court
characterized as providing only general statements that the
District of Columbia often “invites parties to meetings it calls
resolution sessions ‘but fails to staff and conduct such
meetings in accordance with the IDEA,’” was insufficient.
Reed, 134 F. Supp. 3d at 134 (quoting Verified Statement of
Nicholas Ostrem, Counsel for Plaintiffs, JA 410).
Yet, in rendering this decision, the District Court appears
to have overlooked, or failed to appropriately weigh, evidence
submitted by Appellants that stated not only that the District
of Columbia had, in the past, failed to satisfy all of IDEA’s
requirements when inviting parties to “resolution sessions,”
but that the specific settlement conferences excluded by the
District Court in this case were themselves deficient. See
Verified Statement of Nicholas Ostrem, Counsel for
Plaintiffs, JA 411. Counsel for Appellants in the underlying
administrative hearings provided an affidavit noting that
students’ IEP teams were not present at these meetings and
representatives of the local educational agency did not
indicate they possessed “decisionmaking authority” with
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respect to the students’ complaints and appeared to lack
“specific knowledge of the facts” put forth in these
complaints. Id.
The District Court thus abused its discretion in dismissing
out of hand Appellants’ claims that the disputed hours were
not resolution sessions. Cf. Radtke v. Caschetta, 822 F.3d
571, 575 (D.C. Cir. 2016) (holding that a district court abused
its discretion in reducing a fee award due to appellants’
alleged inability to provide a meaningful demand for actual
damages suffered when appellants had in fact provided
damages estimates to the court). Indeed, the kind of specific,
undisputed record evidence that a meeting fell short of the
statutory requirements for a “resolution session” presented by
Appellants in this case has, in the past, been deemed sufficient
to establish that a plaintiff should not have these hours
removed from their fee award. See Eley v. District of
Columbia, 999 F. Supp. 2d 137, 165–66 (D.D.C. 2013),
vacated and remanded on other grounds, 793 F.3d 97 (D.C.
Cir. 2015). We therefore reverse the decision of the District
Court and remand the case so that the court can calculate the
amount due in fees for the settlement conferences.
B. Appropriate Rate
Over the course of this litigation, Appellants have
requested a prevailing market rate for the attorneys’ fees
associated with their success in the underlying IDEA
administrative hearings that is pegged to the LSI Laffey
Matrix. In connection with this broad contention, Appellants
have raised two arguments on appeal that were not clearly
presented to or fully considered by the District Court: (1) The
prevailing market rate for IDEA litigation aligns with rates
contained in the LSI Laffey Matrix as evidenced by affidavits
stating that IDEA attorneys charge their clients rates matching
13
this matrix. Br. for Appellants at 10. (2) The rates awarded by
the District Court are insufficient to attract competent counsel
to take on these kinds of cases and, as such, are impermissibly
low. Br. for Appellants at 17–20. There are two problems
with these claims. First, they were not fully explored with the
District Court. Second, even after a generous read of the
record, we can find no substantial or compelling evidence to
support the points now pressed by Appellants. In these
circumstances, it would imprudent for us to opine on these
matters in the face of such a spare record. We do not mean to
say that the positions lack merit. Rather, we simply mean to
say that the issues should be left for another day when the
claims can be appropriately fleshed out. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (noting “the general rule . . .
that a federal appellate court does not consider an issue not
passed upon below”).
Appellants’ principal argument on appeal, which was
raised with the District Court, is that IDEA cases constitute
“complex federal litigation” for purposes of the Laffey Matrix,
and, as such, this fee matrix, or an updated version thereof,
provides the relevant “prevailing market rate” that a court
should look to when calculating Appellants’ fee award. Br.
for Appellants at 11–16. The District Court rejected this
claim, and we affirm. We conclude that the District Court did
not abuse its discretion in finding that Appellants failed to
meet their burden of demonstrating that IDEA cases are akin
to the type of cases traditionally understood to fall within the
category of “complex federal litigation” to which the Laffey
Matrix presumptively applies.
In Eley v. District of Columbia, this court bracketed the
question of “whether IDEA litigation is in fact sufficiently
‘complex’ to use either version of the Laffey Matrix.” 793
F.3d at 105. But cf. Eley, 793 F.3d at 105 (Kavanaugh, J.,
14
concurring) (“[I]n in my view, the United States Attorney’s
Office Laffey matrix is appropriate for IDEA cases.”).
Following our decision in Eley, Appellants in this case
proffered six affidavits from attorneys who are familiar with,
or have litigated, IDEA cases. The affidavits claim that IDEA
matters are akin to “complex federal litigation.” JA 413–45.
These affidavits include statements noting that practitioners
have found “legal work under the IDEA to be far more
complex than Title VII work and civil rights work [previously
recognized examples of ‘complex federal litigation’].” JA
413. They also explain that IDEA cases are complex because
they involve the application of “specialized non-legal
knowledge regarding special education,” JA 413, 424, 430,
434, 438, 442, and “limited discovery and pretrial exchange,”
which makes preparing for and litigating “IDEA cases more
complicated, especially because hearing officers typically
allow respondents to spontaneously adjust defenses,” JA 414,
424, 431, 434, 438, 442.
In our view, the District Court did not abuse its discretion
in holding that, while Appellants may have demonstrated that
IDEA proceedings are complicated “in some sense,” they fell
short of establishing that “such matters are complex federal
litigation,” Reed, 134 F. Supp. 3d at 129 (emphasis omitted),
as this court has held they must. See Eley, 105 F.3d at 105
(finding that a district court abused its discretion in relying on
the LSI Laffey Matrix to determine the prevailing market rate
in IDEA litigation “absent…any record evidence, other than
the fee applicant’s declaration, demonstrating that IDEA
litigation is as complex as the type of litigation that supports
the ‘enhanced’ hourly rates in the LSI Laffey Matrix”). Mere
conclusory statements that IDEA litigation is “as complex” as
other types of cases deemed by this court to be “complex
15
federal litigation,” absent an explanation of why this is so,
cannot suffice to meet Appellants’ burden.
We appreciate that attorneys who litigate IDEA cases may
have “specialized non-legal knowledge.” But this is true in a
number of specialized fields. We also understand that IDEA
litigants may not have discovery and pre-trial exchanges of
the sort found in other federal litigation. But the absence of
discovery may suggest that IDEA cases are not as complex as
cases in which discovery is extensive. In other words, what
Appellants have offered is insufficient to demonstrate that
IDEA cases involve complex federal litigation.
To be clear, we do not mean to rule out the possibility that
future fee applicants may be able to demonstrate that IDEA
cases are “complex federal litigation” to which the Laffey
Matrix presumptively applies. It will not be easy, however, as
Laffey is not very helpful in explicating “complex federal
litigation.”
In Laffey, plaintiffs sought fees associated with litigating a
case involving violations of Title VII and the Equal Pay Act.
In order to assemble the information regarding attorneys’
rates that now comprises the Laffey Matrix, the Laffey
litigants assembled a “barrage of data, including twenty-five
attorney affidavits secured specifically for [the] litigation,
information gleaned from affidavits filed in other cases, and
fee data reflected in previous judicial decisions.” Laffey v.
Nw. Airlines, Inc. (Laffey I), 572 F. Supp. 354, 371–72
(D.D.C. 1983), aff'd in part, rev'd in part on other grounds,
Laffey v. Nw. Airlines, Inc. (Laffey II), 746 F.2d 4 (D.C. Cir.
1984), overruled in part on other grounds, SOCM, 857 F.2d
1516. The Laffey plaintiffs offered this information
specifically to demonstrate the prevailing market rates for
what was called “complex federal litigation.” Id. at 372. Very
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little additional explanation is provided by the District Court
in Laffey regarding the attributes of this type of litigation. The
court simply noted that “the relevant legal market in this
action is complex employment discrimination litigation and . .
. this market is subject to the same hourly rates that prevail in
other complex federal litigation.” Id. at 374.
We have applied the Laffey Matrix to requests for
attorneys’ fees brought pursuant to 42 U.S.C. § 1988. See,
e.g., Covington, 57 F.3d at 1109. However, the decision in
Covington is buttressed by the fact that the Senate Report
accompanying the enactment of this statute describes section
1988 cases as involving “complex Federal litigation”:
It is intended that the amount of fees awarded under
[§ 1988] be governed by the same standards which
prevail in other types of equally complex Federal
litigation, such as antitrust cases[,] and not be reduced
because the rights involved may be nonpecuniary in
nature. The appropriate standards, see Johnson v.
Georgia Highway Express, 488 F.2d 714 (5th Cir.
1974), are correctly applied in such cases as Stanford
Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974);
Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444
(C.D. Cal. 1974); and Swann v. Charlotte-
Mecklenburg Board of Education, 66 F.R.D. 483
(W.D.N.C. 1975).
Blum, 465 U.S. at 893–94 (quoting S. REP. NO. 94–1011, at 6
(1976)).
Unfortunately, the case law provides little guidance to
litigants attempting to demonstrate that IDEA cases constitute
“complex federal litigation.” The main point here is that,
regardless of whether future fee applicants can divine a
17
unifying thread that will bring IDEA cases under the umbrella
of “complex federal litigation,” it is clear that Appellants
failed to do so in this case.
C. Fees-on-Fees
IDEA litigants are entitled to receive compensation for the
hours expended pursuing an initial fee award in District
Court. See Kaseman v. District of Columbia, 444 F.3d 637,
642–43 (D.C. Cir. 2006). Appellants were awarded fees for
this work. They complain that the rate used to calculate the
fees was too low and that the District Court abused its
discretion by “arbitrarily setting the rate without any
examination of the record.” Br. for Appellants at 23.
Appellants, however, failed to provide any evidence
suggesting that the “prevailing market rate” for fees-on-fees is
distinct from the rate used to calculate attorneys’ fees for the
administrative proceedings.
This court has yet to determine whether all aspects of an
IDEA litigation should be treated as a unified whole, subject
to the same prevailing market rate. But cf. Jester v. Gov't of
District of Columbia, 474 F.3d 820, 821–22 (D.C. Cir. 2007)
(noting that an IDEA request for fee awards and fees-on-fees
litigation should be considered part of the same action for the
purposes of the IDEA’s fee cap); Kaseman, 444 F.3d at 640–
43 (same). We need not do so today, as the District Court did
not abuse its discretion in applying the same rate for fees for
the administrative proceedings and fees-on-fees in light of
Appellants’ failure to submit evidence of any meaningful
difference between these two types of litigation.
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III. CONCLUSION
For the reasons set forth above, we affirm the judgment of
the District Court with respect to its determination of the
prevailing market rate for both Appellants’ initial request for
fees and their fees-on-fees motion. We reverse and remand
the District Court’s judgment excluding certain hours spent in
“settlement conferences” from Appellants’ fee award.
TATEL, Circuit Judge, concurring: Attorneys seeking
compensation under the Individuals with Disabilities
Education Act are entitled to reasonable fees, 20 U.S.C.
§ 1415(i)(3)(B)(i), and bear the burden of demonstrating that
the rates they seek are consistent with those “prevailing in the
community in which the action or proceeding arose for the
kind and quality of services furnished,” id. § 1415(i)(3)(C). A
reasonable fee is “one that is adequate to attract competent
counsel, but that does not produce windfalls to attorneys.”
Blum v. Stenson, 465 U.S. 886, 897 (1984) (citation,
alterations, and internal quotation marks omitted).
In complex cases—such as antitrust, school
desegregation, Title VII, and Fourth Amendment suits, see id.
at 893–94—we and our district court colleagues have long
accepted Laffey matrices as evidence of prevailing market
rates. See Covington v. District of Columbia, 57 F.3d 1101,
1109 (D.C. Cir. 1995) (“In order to demonstrate [the
prevailing market rate], plaintiffs may point to such evidence
as an updated version of the Laffey matrix or the U.S.
Attorney’s Office [Laffey] matrix . . . .”). Since the Laffey
matrix was first used in a Title VII case in 1983, see Laffey v.
Northwest Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C.
1983), courts in this circuit have awarded Laffey rates in a
wide variety of complex litigation, including suits arising
under the First Amendment, see Covington, 57 F.3d at 1103,
the Americans with Disabilities Act, see id., the
Rehabilitation Act, see Berke v. Federal Bureau of Prisons,
942 F. Supp. 2d 71, 77 (D.D.C. 2013), the Freedom of
Information Act, see ACLU v. Department of Homeland
Security, 810 F. Supp. 2d 267, 277 (D.D.C. 2011), and the
Second Amendment, see Heller v. District of Columbia, 832
F. Supp. 2d 32, 48 (D.D.C. 2011).
Last year, in Eley v. District of Columbia, 793 F.3d 97
(D.C. Cir. 2015), this court decided to treat IDEA cases
differently. Instead of determining itself whether IDEA
2
litigation warrants Laffey rates, the court held not only that fee
applicants must present evidence “demonstrating that IDEA
litigation is as complex as the type[s] of litigation” that have
garnered Laffey rates, Eley, 793 F.3d at 105, but also that it
would review a district court’s resolution of that issue for
abuse of discretion, id. at 103–04.
It is true that fee applicants bear the burden of
establishing the reasonableness of their rates and that district
court fee awards are reviewed for abuse of discretion.
Copeland v. Marshall, 641 F.2d 880, 901 (D.C. Cir. 1980)
(“[A]n attorney’s fee award by the District Court will be upset
on appeal only if it represents an abuse of discretion.”). But
whether a particular rate in a particular case is reasonable is a
fundamentally different question from whether IDEA
litigation, as a type of legal work, is complex enough to merit
Laffey rates. The former involves a fact-intensive, case-
specific analysis of the prevailing lawyer’s qualifications and
experience. By contrast, the latter hinges not on the
circumstances of any particular case, but rather on an
assessment of the nature of IDEA litigation generally, as
compared to, say, Title VII, Rehabilitation Act, or ADA
litigation, each of which has commanded Laffey rates.
Although this comparison requires consideration of how
plaintiffs prove their cases, it is in the end a legal question
that cannot depend—as Eley requires—on whether one
lawyer has met her burden of proof or, for that matter, on the
inevitably varying views of district courts based on the
records before them. Compare Reed v. District of Columbia,
134 F. Supp. 3d 122, 129–30 (D.D.C. 2015) (holding that
plaintiffs had not met their burden under Eley), with Merrick
v. District of Columbia, 134 F. Supp. 3d 328, 338–40 (D.D.C.
2015) (holding that plaintiffs had met their burden). Either
IDEA litigation is as complex as Title VII, Rehabilitation Act,
3
and ADA litigation, or it is not—a question this court is best
equipped to resolve.
Take, for example, Title VII litigation. During the past
ten years, we have considered more than 200 Title VII cases
and almost 30 IDEA claims. In the process, we have wrestled
with the two statutes and their regulations, reviewed an
enormous variety of evidentiary records, read hundreds of
briefs, and observed the performance of many lawyers—some
more skilled than others. Based on my own experience
hearing dozens of these cases and authoring opinions in many,
I think it quite obvious that IDEA litigation is as complex as
Title VII litigation.
Like Title VII litigation, IDEA litigation arises under a
complicated statutory framework, supplemented by detailed
regulations. See, e.g., K.A. ex rel. F.A. v. Fulton County
School District, 741 F.3d 1195, 1201 (11th Cir. 2013)
(describing the IDEA as “a detailed, complex statute” with a
“complex procedural apparatus” for ensuring a free and
appropriate education). One need look no further than the
decisions of the Supreme Court to appreciate the thorny
questions of statutory interpretation that lie at the heart of
IDEA litigation. See, e.g., Winkelman ex rel. Winkelman v.
Parma City School District, 550 U.S. 516, 519, 522 (2007)
(interpreting the IDEA’s “interlocking statutory provisions” to
determine whether the statute “accords to parents rights of
their own that can be vindicated in court proceedings”);
Honig v. Doe, 484 U.S. 305, 308, 323 (1988) (holding that the
“stay-put” provision in the IDEA’s predecessor, the Education
of the Handicapped Act, prevented schools from excluding
students with disabilities from school for “disruptive conduct
growing out of their disabilities”). We too have addressed
many such issues. See, e.g., Leggett v. District of Columbia,
793 F.3d 59, 62 (D.C. Cir. 2015) (examining when a parent
4
who “send[s] her child to a private school” may be
reimbursed under the IDEA); Reid ex rel. Reid v. District of
Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005) (interpreting
the IDEA’s remedial provision).
IDEA and Title VII litigation share many other
complexities. Both involve sophisticated non-legal subjects:
in Title VII litigation, statistics, employment testing, and
workplace compensation; in IDEA litigation, child
psychology, speech and language pathology, occupational
therapy, physical therapy, and special education curricula.
Both types of litigation rely heavily on experts in a variety of
fields: in Title VII, statisticians and psychologists; in IDEA,
childhood development specialists, psychiatrists, pathologists,
and experts in educational options for children with
disabilities. Finally, both types of litigation often involve
complex organizations: large companies in Title VII cases;
large public school systems (here DCPS) in IDEA cases.
To be sure, many IDEA cases, like the ones at issue here,
are relatively small. But that is also true of Title VII cases.
See, e.g., Robbins v. District of Columbia, 650 F. App’x 37
(D.C. Cir. 2016); Kelly v. Mills, No. 10-5049, 2010 WL
5110238 (D.C. Cir. Dec. 14, 2010). More important, even
small IDEA claims require lawyers with non-legal knowledge
and specialized legal skills, as the declarations in these cases
demonstrate. See, e.g., Reed v. District of Columbia, No. 14-
1887, ECF No. 18-2 at 1 (D.D.C. Aug. 13, 2015) (“Every
[IDEA] case requires knowledge of education policies,
procedures, techniques, best practices, records, and
administration . . . . A competent IDEA litigator must know
enough [about specialized] disciplines to understand and
critique evaluations, cross-examine experts, and work with
one’s own experts.”). IDEA cases, moreover, can be as large,
complex, and long-lasting as the most complicated Title VII
5
cases. Compare Blackman v. District of Columbia, 633 F.3d
1088, 1089 (D.C. Cir. 2011) (describing the “latest . . .
chapter in the saga stretching back at least forty years of
families with disabled children seeking free appropriate
public education from the District of Columbia with frequent
repair to administrative and judicial remedy”), with Shea v.
Kerry, 796 F.3d 42, 50–56 (D.C. Cir. 2015) (tracing the “long
history” of a fourteen-year-old Title VII claim against the
State Department).
For these reasons, were this panel not bound by Eley, I
would hold, as a matter of law, that IDEA litigation is
sufficiently complex to warrant Laffey rates. See Eley, 793
F.3d at 105 (Kavanaugh, J., concurring) (“[I]n my view, the
United States Attorney’s Office Laffey matrix is appropriate
for IDEA cases.”). Deeming IDEA litigation eligible for
Laffey rates would comport with the Supreme Court’s
instruction that a reasonable fee is one “adequate to attract
competent counsel,” Blum, 465 U.S. at 893 (citation omitted),
thereby advancing Congress’s goal that “all children with
disabilities” receive a free appropriate public education
“designed to meet their unique needs.” Forest Grove School
District v. T.A., 557 U.S. 230, 239 (2009) (citation omitted).