Dl v. District of Columbia , 267 F. Supp. 3d 55 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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DL, et al., )
)
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Plaintiffs, )
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v. ) Case No: 05-cv-1437-RCL
)
DISTRICT OF COLUMBIA, et al., )
)
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Defendants. )
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MEMORANDUM OPINION
I. INTRODUCTION
This case comes before the Court on plaintiffs’ motion for attorneys’ fees, ECF No. 537.
Plaintiffs brought claims under the Individuals with Disabilities Education Act (“IDEA”), the
Rehabilitation Act, and District of Columbia law. After many years of litigation which included
class certification issues, summary judgment, trial, and appeals, this case is finally at its end.
Plaintiffs now seek $9,760,487.55 in attorneys’ fees and costs. For the reasons stated below, this
Court finds that plaintiffs are entitled to fees and costs, although not in this amount. It will grant
in part and deny in part plaintiffs’ motion, but will seek a revised calculation from plaintiffs before
ordering the District of Columbia to pay.
II. BACKGROUND
This case, originally filed in 2005, was brought by the parents of preschool age children
with various disabilities who tried to obtain special education services from the District of
Columbia Public Schools (“DCPS”), alleging violations of the Individuals with Disabilities
Education Act (“IDEA”), the Rehabilitation Act, and District of Columbia law, which require that
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the District offer a “free and appropriate public education” (“FAPE”) to disabled children. These
laws require “states to develop a ‘practical method’ to track which children are receiving special
education services and to ensure that all children ‘who are in need of special education and related
services . . . are identified, located, and evaluated’ within a timeframe set by the state—120 days
in this case.” DL v. D.C., 860 F.3d 713, 717 (D.C. Cir. 2017) (citing 20 U.S.C. § 1412(a)(3)(A);
20 U.S.C. § 1414(a)(1)(C)(i)(I); D.C. Code § 38-2561.02(a)(1)). States are additionally obligated
“to provide a seamless transition when three-year-olds move from ‘early intervention’ programs
(governed by IDEA Part C) to preschool (governed by IDEA Part B).” Id. (citing 20 U.S.C. §§
1412(a)(9), 1435(a)(8)(A), 1437(a)(9); 34 C.F.R. § 303.209). These provisions are known as the
“Child Find” duty.
Plaintiffs alleged numerous knowing, pervasive, and systemic failures to comply with the
“Child Find” requirement. The procedural history of this case is set out in the many opinions from
both this Court and the Court of Appeals. It was most recently summarized in DL v. D.C., 860
F.3d 713 (D.C. Cir. 2017), and need not be repeated in full here. It is sufficient to note that
plaintiffs ultimately brought claims related to four subclasses:
(1) disabled three-to-five-year-olds whom the District failed to identify for the purpose of
offering special education services; (2) disabled three-to-five-year-olds whom the District
failed to give an initial evaluation within 120 days of being referred for special education
services; (3) disabled three-to-five-year-olds whom the District failed to give an “eligibility
determination”—i.e., a decision as to whether they qualify for IDEA services—within 120
days of being referred; and (4) all children who transitioned from early intervention to
preschool programs, and whom the District denied a “smooth transition” by age three.
DL, 860 F.3d at 719.
In 2014, the Court found that “the District was liable for violating the IDEA and District
law for the period up to April 6, 2011” for all four subclasses. DL v. D.C., 194 F. Supp. 3d 30, 37
(D.D.C. 2016). It ruled for defendants, however, “on (1) plaintiffs’ IDEA and District law claims
related to the failure timely to evaluate children for special education and related services for the
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period from April 6, 2011 to the present [Subclass 2], and (2) all of plaintiffs’ Rehabilitation Act
claims for the period from March 22, 2010 to the present.” Id. Then, at trial, plaintiffs alleged
that the District violated the IDEA with respect to Subclasses 1, 3, and 4 from April 6, 2011
through the present, and that the District violated the Rehabilitation Act with respect to all four
subclasses for the period up to March 22, 2010. Id. at 37–38. After trial, the Court found that the
District had violated the IDEA with respect to Subclasses 1, 3, and 4 from April 6, 2011 through
the first day of trial (November 12, 2015), and that it violated the Rehabilitation Act with respect
to all four subclasses through March 22, 2010. Id. at 88–96. The breakdown of each party’s
success is as follows:
IDEA Claims IDEA Claims Rehabilitation Rehabilitation
through April from April 6, Act Claims Act Claims
6, 2011 2011 to present through March from March 22,
22, 2010 2010 to present
Subclass 1 Plaintiffs Plaintiffs Plaintiffs Defendants
Subclass 2 Plaintiffs Defendants Plaintiffs Defendants
Subclass 3 Plaintiffs Plaintiffs Plaintiffs Defendants
Subclass 4 Plaintiffs Plaintiffs Plaintiffs Defendants
On May 18, 2016, this Court found that “[p]laintiffs have prevailed on both IDEA and
Rehabilitation Act claims. Pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I) (IDEA) and 20 U.S.C. §
794a(b) (Rehabilitation Act), the District shall pay plaintiffs’ reasonable attorneys’ fees and related
nontaxable expenses associated with litigating this suit.” May 18, 2016 Order ¶ 30, ECF No. 521.
Plaintiffs now request fees for two periods of time: 1) through November 16, 2011 (Period 1);
from November 17, 2011 to June 22, 2016 (Period 2). Plaintiffs originally requested fees and costs
totaling $10,010,956, using the current rates set out in the LSI Matrix. After briefing, they now
request $9,760,487.55 using LSI Matrix rates. The law firm of Terris, Pravlik & Millian, LLP
(“TPM”), lead counsel in this case, requests fees totaling $8,962,597.98 and costs totaling
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$259,409.83. Professor Jeffrey S. Gutman, who oversaw a clinic at The George Washington
University Law School in which students worked on this case, requests fees totaling $135,476.32.
Co-counsel Margaret A. Kohn, who served as class counsel and the primary contact with the
named plaintiffs, requests fees totaling $380,009.56 and costs totaling $1,727.61. Co-counsel
Cyrus Mehri, who performed work related to class certification and settlement, requests fees
totaling $21,266.25.
The District argues that the Court should award fees using the USAO Matrix, and should
use historic (2012) rates with interest for Period 1, and current rates for Period 2. The District also
argues that the requested fees should be reduced because plaintiffs billed an unreasonable number
of hours for many tasks, because they improperly billed for matters in which they failed to prevail,
and because they failed to exercise reasonable billing judgment. It also argues that fees for co-
counsel should be reduced substantially or denied. Furthermore, it argues that plaintiffs’ costs are
excessive and should be reduced significantly, and that expert fees are not reimbursable. Finally,
the District argues that the IDEA’s statutory fee cap requires that the Court deny plaintiffs’ request
unless and until plaintiffs demonstrate actual class membership. The United States has submitted
a statement of interest pursuant to 28 U.S.C. § 517, and argues that the USAO Matrix is the
appropriate fee matrix to use in this and other cases.
III. LEGAL STANDARDS
A. Legal Framework for Determining Fee Awards
This Court has recently had occasion to discuss the legal framework surrounding attorneys’
fees in IDEA cases, which often come before this District Court. The Court thus refers to its own
opinion in Joaquin v. D.C., 210 F. Supp. 3d 64 (D.D.C. 2016), in which it summarized the analysis
as follows:
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The IDEA provides that courts may award reasonable attorney’s fees to prevailing parties.
20 U.S.C. § 1415(i)(3)(B)(i). The fees must be “based on rates prevailing in the community
in which the action or proceeding arose for the kind and quality of services furnished.” Id.§ 1415(i)(3)(C). A three part analysis guides the assessment of whether a requested fee
award is reasonable: “First, the court must determine the ‘number of hours reasonably
expended in litigation.’ Second, it must set the ‘reasonable hourly rate.’ Finally, it must
determine whether use of a multiplier is warranted.” Eley v. District of Columbia, 793 F.3d
97, 100 (D.C. Cir. 2015) (internal citations omitted). To determine a reasonable hourly
rate, the court considers “(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. (internal quotation marks omitted). Attorney’s fee litigation employs a burden-shifting
scheme:
The fee applicant bears the burden of establishing entitlement to an award,
documenting the appropriate hours, and justifying the reasonableness of the rates.
Once an applicant meets this initial burden, a presumption applies that the number
of hours billed and the hourly rates are reasonable. At that point, the burden shifts
to the opposing party to provide specific contrary evidence tending to show that a
lower rate would be appropriate.
Flood v. District of Columbia, No. CV 15–497 (BAH), 172 F.Supp.3d 197, 203, 2016 WL
1180159, at *3 (D.D.C. Mar. 25, 2016) (internal citations and quotation marks omitted).
210 F. Supp. 3d at 68. The Court will specifically address the standards for determining reasonable
hourly rates and the reasonableness of hours billed in Parts IV.B.1 and IV.C.1, infra.
B. Fee Caps
In certain circumstances, there is no need to conduct the aforementioned fee award
analysis. In 1999, Congress capped the fees payable by the District in IDEA cases. See Omnibus
Consolidated and Emergency Supplemental Appropriation Act of 1999, Pub. L. No. 105–277, §
130, 112 Stat. 2681 (1998). In 2003, Congress set a flat cap of $4,000 on attorneys’ fees for IDEA
actions. See Consolidated Appropriations Act of 2003, Pub. L. No. 108–7, § 144, 117 Stat. 11(2003). In 2009, Congress passed the final rider relating to IDEA attorneys’ fees, stating:
Notwithstanding section 615(i)(3)(B) of the Individuals with Disabilities Education Act
(20 U.S.C. § 1415(i)(3)(B)), none of the funds contained in this Act or in any other Act
making appropriations for the government of the District of Columbia for fiscal year 2009
or any succeeding fiscal year may be made available—
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(1) to pay the fees of an attorney who represents a party in or defends an IDEA
proceeding which was initiated prior to the date of the enactment of this Act in an
amount in excess of $4,000 for that proceeding.
Omnibus Appropriations Act, Pub. L. No. 111–8, § 814, 123 Stat. 524 (2009). The 2009 rider did
not provide a fee cap for future cases.
However, the D.C. Circuit found that “the ‘evident intent’ of the [2009] statute is to address
individual IDEA proceedings, not class actions.” Blackman v. D.C., 633 F.3d 1088, 1092 (D.C.
Cir. 2011). Thus,
the cap does not preclude the Court from ordering defendants to pay and—more
importantly—does not preclude the defendants from paying reasonable attorneys’ fees to
the plaintiff classes, so long as the total amount paid by the defendants does not surpass
the statutory fee cap multiplied by the total number of members of the plaintiff class.
Id. (quoting and agreeing with the reasoning of the District Court) (“As it is undisputed that the
classes number in the hundreds, if not thousands, the plain and unambiguous language of the
statute would seem to make the district court's conclusion unassailable and compel us to affirm the
fee award order.”). Thus, the fee cap prohibits fee awards in class actions that are greater than
$4,000 multiplied by the number of class members.
IV. ANALYSIS
A. Fee Caps
Because the applicability of fee caps would have an impact on the fee award in this case
and would eliminate the necessity of conducting a lodestar analysis, the Court will address this
issue first. The Court will discuss whether this entire case should be treated as an IDEA case or
whether it should be treated as a Rehabilitation Act case, which has no fee cap requirements, and
then will determine whether the caps apply in this case.
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1. IDEA vs. Rehabilitation Act
The Court first determines that this case should be treated as an IDEA case for the purpose
of determining whether the fee caps are even relevant. Plaintiffs brought claims under both the
IDEA and the Rehabilitation Act, which have separate fee-shifting provisions. Compare 20 U.S.C.
§ 1415(i)(3)(B)(i) with 29 U.S.C. § 794a(b). The Rehabilitation Act, which prohibits
discrimination on the basis of disability in programs receiving federal funding, states in its
implementing regulations that “a recipient that operates a public elementary or secondary
education program or activity shall provide a free appropriate public education to each qualified
handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the
person’s handicap.” 34 C.F.R. § 104.33. In 2006, this Court set out the standard for Rehabilitation
Act claims in the IDEA context:
In order to state a claim under Section 504 of the Rehabilitation Act in IDEA cases,
plaintiffs must show that “something more than a mere failure to provide the ‘free and
appropriate education’ required by the [IDEA]’” has occurred. Walker v. District of
Columbia, 157 F. Supp. 2d 11, 35 (D.D.C. 2001) (Friedman, J.)[.] Generally, plaintiffs
who show either “bad faith or gross misjudgment” can prevail under Section 504 for IDEA
violations. Id. Liability will not be imposed so long as the “state officials involved have
exercised professional judgment, in such a way as not to depart grossly from accepted
standards among educational professionals.” Monahan v. Nebraska, 687 F.2d 1164, 1171
(8th Cir. 1982).
DL v. DC, No. 05-1437, slip op. at 3–4 (D.D.C. Aug. 2, 2006) (ECF No. 55).
In 2010, this Court granted summary judgment in favor of plaintiffs with respect to their
Rehabilitation Act claims through 2007 after finding that the District failed to comply with the
IDEA and concluding that “defendants knew that their actions were legally insufficient, yet failed
to bring themselves into compliance with their legal obligations, in violation of § 504 of the
Rehabilitation Act,” which showed “bad faith or gross misjudgment.” DL v. D.C., 730 F. Supp.
2d 84, 100 (D.D.C. 2010). In 2011, this Court “extend[ed] the holding of its August 10, 2010
Memorandum Opinion, and declare[d] that defendants violated Section 504 of the Rehabilitation
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Act for the period January 1, 2008 to April 6, 2011 (the first day of the first trial) because, in
violating the IDEA, defendants failed to exercise professional judgment in such a way as not to
depart grossly from accepted standards among educational professionals and thus demonstrated
bad faith or gross misjudgment.” DL v. D.C., 845 F. Supp. 2d 1, 24 (D.D.C. 2011) (internal citation
omitted). After disputes regarding class certification, the plaintiffs were broken into the four
aforementioned subclasses. This Court then concluded in 2016 that the District violated the
Rehabilitation Act through March 22, 2010 with respect to Subclass 1 “because it demonstrated
bad faith and gross misjudgment with regard to its FAPE and Child Find obligations;” that it
violated the Rehabilitation Act with respect to Subclass 2 through March 22, 2010 “because it
demonstrated bad faith and gross misjudgment with regard to its obligation to provide timely initial
evaluations for special education and related services;” that it violated the Rehabilitation Act with
respect to Subclass 3 through March 22, 2010 “because it demonstrated bad faith and gross
misjudgment with regard to its obligation to provide timely eligibility determinations for special
education and related services;” and that it violated the Rehabilitation Act with respect to Subclass
4 through March 22, 2010 “because it demonstrated bad faith and gross misjudgment with regard
to its obligation to provide smooth and effective transitions from Part C to Part B services.” DL,
194 F. Supp. 3d at 96. All of the obligations mentioned are IDEA obligations.
Thus, based on the above, the Court concludes that this case is at its heart an IDEA case.
It is about whether the District of Columbia violated the IDEA by failing to identify, locate,
evaluate, or offer special education services, and/or failed to ensure a smooth and effective
transition for disabled preschool children. The Rehabilitation Act claims and the Court’s various
findings regarding them rest on top of the IDEA claims. The Court found that the District violated
the Rehabilitation Act because it violated the IDEA in several ways and because the District
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showed bad faith or gross misjudgment. The Rehabilitation Act claims do not exist completely
independently of the IDEA claims. Because the Court concludes that this case should be treated
as an IDEA case for the purposes of this fee dispute, it now turns to whether the IDEA fee caps
are applicable.
2. IDEA Fee Caps
The fee caps are inapplicable based on the subclass sizes. Plaintiffs seek $9,760,487.55 in
fees and expenses, but “since plaintiffs cannot recoup expert expenses under the IDEA, those
expenses ($121,207.82) should not be subject to the fee cap.” Pls.’ Mot. 36, ECF. No. 537 (internal
citations omitted). Subtracting $121,207.82 from $9,760,487.55 equals $9,639,279.73.
$9,639,279.73 divided by $4,000 (the fee cap) equals 2,409.82. Therefore, there must be less than
2,410 children in the class for the fee caps to be applicable.
The Court previously found that, with respect to Subclass 1, “The District Failed to Provide
Special Education and Related Services to Thousands of Children Prior to March 22, 2010.” DL,
194 F. Supp. 3d at 78. Regarding Subclass 2, it found that “The District Failed to Provide Timely
Initial Evaluations to over a Thousand Children prior to March 22, 2010.” Id. at 80. For Subclass
3, it found that “The District Failed to Provide Timely Eligibility Determinations to over a
Thousand Children prior to March 22, 2010.” Id. at 81. Finally, with respect to Subclass 4, the
Court found that “The District Failed to Provide Smooth and Effective Transitions to Many
Hundreds of Children Prior to March 22, 2010.” Id.
Using conservative estimates, this means that the District failed to provide special
education and related services to at least 2,000 children (“thousands of children), failed to provide
timely initial evaluations to at least 1,000 children (“over a thousand children”), failed to provide
timely eligibility determinations to at least 1,000 children (“over a thousand children”, and failed
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to provide smooth and effective transitions to at least 200 children (“many hundreds of children”).
The sum of these figures is 4,200, which is greater than the less than 2,410 needed for the fee caps
to apply.
Furthermore, when this Court certified the four subclasses, it addressed numerosity and
stated the following:
In just one year, 2008, the plaintiffs’ expert estimates that the District failed to identify at
least 1,152 disabled children. The second subclass, children who did not and will not
receive initial evaluations within 120 days of referral, numbered at least 514 in 2010.
Subclass three, children who did not and will not receive eligibility determinations within
120 days of referral, included at least 1,057 children in 2008 through 2010. The final
subclass, children who did not and will not receive a smooth and effective transition from
Part C to Part B services, included 163 children in 2008.
DL v. D.C., 302 F.R.D. 1, 11 (D.D.C. 2013) (internal citations omitted), aff’d, 860 F.3d 713 (D.C.
Cir. 2017). Thus, in these limited timeframes (2008 for Subclass 1, 2010 for Subclass 2, 2008 –
2010 for Subclass 3, and 2008 for Subclass 4), the class size numbered 2,886. And, although the
Court notes and plaintiffs acknowledge that some overlap may have occurred amongst the
subclasses, see Gluckman Aff. ¶ 89, Pls. Ex. 69, ECF No. 566-2, the Court agrees that given that
class members have claims spanning thirteen years, the likelihood that duplication is so numerous
that it renders the class size small enough for the fee caps to apply is extremely low if not virtually
impossible. Even if all 1,152 members of Subclass 1 in 2008 were the same children as those
falling into all of the other subclasses, for the fee caps to apply the Court would have to find that
in the other 12 years (all years excluding 2008), only 1,258 children fell into the class. Given the
pervasiveness of the District’s failures to comply with the IDEA, the Court considers this to be
extremely unlikely.
Finally, the Court also accepts plaintiffs’ calculations—found in paragraphs 90 through 92
of Mr. Gluckman’s affidavit—regarding the size of Subclass 1 based on population size and
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percentages of children receiving special education and related services between 2003 and 2014.
Plaintiffs’ counsel, after aggregating the necessary data, explains the following:
on average, 4.51% of 3-5-year-olds received special education and related services in the
District between 2003 and 2014. The table also shows that, on average, there were 18,434
3-5-year-olds in the District over that period. 4.51% of 18,434 is an average of 832 children
served per year. The Court found that the District should be serving at least 8.5% of the 3-
5-year-old population per year. 8.5% of 18,434 is 1,567. The difference between 1,567
and 832 children, which is 735 children, is the average subclass 1 class size for a single
year.
The product of 735 (the average number of children in subclass 1) and 12 (the number of
years between 2003 and 2014) is 8,820. That includes children ages 3, 4, and 5, and would
over-count children because the same child may remain unserved over multiple years. A
rough method of eliminating this over-counting is to divide the total by 3, which yields
2,940. That eliminates the potential over-counting problem and conservatively estimates
the number of class members because many children will not be in the class over multiple
years. This number is a reasonable estimate of the population of subclass 1 between 2003
and 2014. It is conservative because it does not include the members of subclasses 2, 3,
and 4, and ends at 2014. 2,940 is larger than 2,410 and 2,441, the numbers needed to make
the fee cap irrelevant.
Gluckman Aff. ¶¶ 91–92. The Court accepts these calculations. They, along with all of the
aforementioned findings, show that the fee caps are not applicable in this case because the class
size is larger than 2,410.
B. Reasonable Hourly Rates
Having concluded that fee caps do not apply, the Court now turns to the traditional lodestar
analysis regarding fee awards, first considering the appropriate reasonable hourly rate.
1. Legal Standards
With respect to reasonable hourly rates, parties and courts generally use one of several fee
matrices because, as the D.C. Circuit has noted, “the matrices do provide a useful starting point.”
Covington v. D.C., 57 F.3d 1101, 1109 (D.C. Cir. 1995). First, the most commonly used is the
Laffey Matrix, derived from Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 374 (D.D.C. 1983)
aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), which compiled a
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schedule of prevailing market rates in Washington, D.C. based on years of experience. Because
Laffey was decided in the early 1980s, the rates are updated each year using the Consumer Price
Index for All Urban Consumers (CPI-U) for Washington-Baltimore to account for changes in the
cost of living. The United States Attorney’s Office for the District of Columbia (“USAO”) updates
and maintains the Laffey Matrix. See https://www.justice.gov/usao-dc/civil-division. Beginning
in May 2015, the USAO stopped issuing Laffey matrices using this methodology, instead issuing
what it refers to as the USAO Matrix. See Statement of Interest of the United States 3, ECF No,
564. The USAO Matrix’s “base hourly rates were calculated using statistically significant samples
of average hourly rates for 2011 in survey data for the D.C. metropolitan area, as reported in ALM
Legal Intelligence’s 2010 & 2011 Survey of Law Firm Economics (‘SLFE’). . . . The USAO
Matrix employs the Producer Price Index-Office of Lawyers (PPI-OL) index to adjust for inflation
rates for years after 2011.” Id. at 3–4.1 In the context of IDEA fee litigation, specifically, several
courts within this District have used the USAO/Laffey rates as a starting point, but have awarded
fees at 75% of those rates. See Joaquin, 210 F. Supp. 3d at 67 (internal citations omitted).
Critics of the Laffey/USAO matrices have advocated for the use of a competing matrix
known as the LSI (“Legal Services Index”) Matrix. Eley v. D.C., 793 F.3d 97, 101 (D.C. Cir.
2015). It “uses the Legal Services Index of the Bureau of Labor Statistics to adjust for inflation.
Developed by Michael Kavanaugh, an economist from Hawaii, the LSI Laffey Matrix adjusts for
the increases in costs for legal services only.” Id. at 101–02. “Rather than tracking inflation levels
specific to Washington, D.C., the LSI Laffey Matrix tracks the national rate of change in the cost
of legal services.” Id. at 102. LSI Laffey rates tend to be higher than Laffey/USAO rates.
1
“The United States does not oppose application of the USAO Matrix methodology to earlier periods. Similarly, it
does not oppose application of the Laffey Matrix methodology to periods after May 2015. The USAO-DC, however,
has not issued a USAO Matrix for periods prior to June 1, 2015, nor is it issuing Laffey Matrices for periods after May
2015.” Statement of Interest at 3 n.1.
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The D.C. Circuit has declined to decide whether any of the matrices apply to IDEA cases,
and if so, which version. See id. at 105. Nonetheless, the Eley case, “appears to have reframed
the inquiry surrounding a plaintiff’s burden to show that the proposed rates are reasonable.”
Joaquin, 210 F. Supp. 3d at 68. In Joaquin, this Court adopted Chief Judge Howell’s application
of Eley, in which she concluded the following:
IDEA fee applicants may meet their burden of demonstrating that the requested
reimbursement rate is reasonable in two alternate ways: “First, the applicant may
demonstrate that IDEA proceedings qualify as ‘complex federal litigation,’ to which Laffey
rates presumptively apply. Second, alternatively, a fee applicant may demonstrate that
rates customarily charged by IDEA practitioners in the District are comparable to those
provided under the USAO Laffey Matrix.” Flood, 172 F. Supp. 3d at 210, 2016 WL
1180159, at *9.
***
[T]he D.C. Circuit in both Eley and Salazar v. District of Columbia, 809 F.3d 58, 64 (D.C.
Cir. 2015) “suggest[ed] a categorical approach to identifying reasonable reimbursement
rates for prevailing IDEA plaintiffs.” Id. at 206, 2016 WL 1180159, at *6. In the past,
members of this Court have “drawn a distinction between ‘complex’ IDEA cases, for which
full Laffey rates may be available, and ‘non-complex’ cases that generally entitle a
prevailing claimant to reimbursement at a reduced rate.” Id. at 208, 2016 WL 1180159, at
*7. Under the post-Eley approach outlined by Chief Judge Howell, however, reasonable
rates are to be determined without regard to the complexity of the particular IDEA litigation
at hand. See id. at 206–09, 2016 WL 1180159, at *6–8.
Additionally, under this framework, even if IDEA litigation ultimately categorically does
not qualify as complex federal litigation, a plaintiff may also “justify reimbursement at
Laffey rates based simply on direct evidence of fees typically collected by her attorney and
other attorneys engaged in IDEA litigation in the District of Columbia.” Flood, 172 F.
Supp. 3d at 210, 2016 WL 1180159, at *9. To prove this “prevailing market rate,” fee
applicants have the burden of “produc[ing] satisfactory evidence—in addition to the
attorney’s own affidavits—that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891(1984). Applicants may submit fee matrices, which serve as a starting point for calculating
the prevailing market rate. Eley, 793 F.3d at 100. These may be supplemented by other
evidence including “surveys to update [the matrices]; affidavits reciting the precise fees
that attorneys with similar qualifications have received from fee-paying clients in
comparable cases; and evidence of recent fees awarded by the courts or through settlement
to attorneys with comparable qualifications handling similar cases.” Id. at 100 (internal
quotation marks omitted).
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Joaquin, 210 F. Supp. 3d at 68–69.
The Supreme Court has recognized that in some cases, where the work was performed
years prior to receiving any fees, it may be appropriate to award fees using current rates despite
the fact that the rates in place at the time the services were rendered were different (that is, lower)
than those currently in place:
compensation received several years after the services were rendered—as it frequently is
in complex civil rights litigation—is not equivalent to the same dollar amount received
reasonably promptly as the legal services are performed, as would normally be the case
with private billings. We agree, therefore, that an appropriate adjustment for delay in
payment—whether by the application of current rather than historic hourly rates or
otherwise—is within the contemplation of the statute
Missouri v. Jenkins by Agyei, 491 U.S. 274, 283–84 (1989). “Courts may therefore use either
current or historic rates in calculating the fee award and, ‘to roughly compensate for delay in
payment, a district court has the authority to award current market rates instead of historic market
rates.’” Radtke v. Caschetta, No. 06-CV-2031-RCL, 2017 WL 2483720, at *12 (D.D.C. June 7,
2017).
Although there is no test to determine whether current or historic rates should be used,
courts have considered the following: 1) whether current rates would create a windfall for
plaintiffs’ counsel; 2) the party at fault for the delay; and 3) the length of the delay between the
time the services were rendered and the time of payment. Id. (collecting cases).
The Court will first examine whether plaintiffs have demonstrated that IDEA proceedings
qualify as complex federal litigation to which one of the matrices presumptively applies, and which
matrix is appropriate, then will consider whether plaintiffs have shown that rates customarily
charged by IDEA practitioners in the District are comparable to those provided under the LSI
Matrix. Finally, the Court will determine whether current or historic rates should apply.
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2. Analysis
a) IDEA Litigation is Complex Federal Litigation
It appears that plaintiffs here are largely advocating for the first approach to determining
the reasonable hourly rates, arguing that they are entitled to fees based on market rates for complex
federal litigation. They argue that prevailing market rates are those listed in the LSI Matrix. The
District does not argue that IDEA litigation is not complex—it identifies IDEA litigation as “a
submarket of federal complex litigation” on several occasions—but instead argues that USAO
rates more accurately reflect the prevailing market rates for complex federal litigation.
Thus concluding that IDEA litigation qualifies as complex federal litigation to which one
of the fee matrices presumptively applies, the Court must determine whether the USAO Matrix or
the LSI Matrix is appropriate. This issue ultimately comes down to dueling expert witness
affidavits. While recognizing that each expert has sufficient qualifications and both present fairly
comprehensive arguments, the Court agrees with the District’s expert that the USAO Matrix is the
more appropriate tool for determining attorneys’ fees in cases such as this one. Fee matrices
contain two components: “a set of market rates for a base period, and an index by which those
rates are adjusted annually for changes in the cost of living.” U.S. Statement of Interest 5, ECF
No. 564. The base rates supporting the LSI matrix are provided by a 1989 declaration submitted
by attorney Joseph Yablonski for use in Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516(D.C. Cir. 1988) (en banc) (“SOCM”), which ultimately resulted in a settlement. Then, in Salazar
v. District of Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000), a § 1983 Medicaid class action, an expert
witness for the plaintiffs adjusted Mr. Yablonski’s base rates using the Legal Services Index
(“LSI”) component of the Consumer Price Index. This new matrix was accepted for use by the
Salazar court. Id. at 14–15. The Matrix is adjusted annually for inflation using the Consumer
15
Price Index for Legal Services. The base hourly rates for the USAO Matrix “were calculated using
statistically significant samples of average hourly rates for 2011 in survey data for the D.C.
metropolitan area, as reported in ALM Legal Intelligence’s 2010 & 2011 Survey of Law Firm
Economics (‘SLFE’).” United States Statement of Interest at 3. The Matrix is adjusted annually
for inflation using the Producer Price Index-Office of Lawyers (PPI-OL).
The Court finds that, based on the evidence submitted by both parties, the USAO Matrix
is more reliable and unbiased. As the United States points out in its statement of interest, the base
rates underlying the LSI Matrix date back to 1989, while the rates underlying the USAO Matrix
are based on 2011 data. More importantly, the LSI Matrix rates are based on the declaration of
one attorney—Mr. Yablonski, who believed that the Laffey Matrix was too conservative—for his
own use in SOCM, which eventually ended in a settlement without a decision from the court
regarding appropriate fee rates. See Yablonski Decl., Pls.’ Ex. 33, ECF No. 537-33. Mr.
Yablonski explained that in the course of preparing his Matrix, he spoke with attorneys from
several firms (he lists seven specifically) and “compared the rates [he] had found with the rates set
forth in two broad-ranging surveys of hourly rates published in the National Law Journal in
November 1987 and November 1988.” Id. ¶¶ 5–6. As the District’s expert, Dr. Laura Malowane,
notes, however, “Mr. Yablonski never explained how he identified the attorneys and firms to
sample, the number of attorneys he spoke with, how many data points were collected to derive
each individual billing rate in the matrix, or how many data points were collected in total.”
Malowane Decl. ¶ 15, Def.’s Ex. 11, ECF No. 554-11. Plaintiffs’ expert, Dr. Michael Kavanaugh,
states that Mr. Yablonski’s survey “was an expert survey that targeted attorneys who were
performing complex federal litigation and asked for billing rates for defined levels of experience,”
16
Second Kavanaugh Decl. ¶ 33, Pls.’ Ex. 78, ECF No. 566-11, but does not specifically address the
shortcomings identified by Dr. Malowane.
Furthermore, reliance on National Law Journal surveys has been called into question by
other courts. Judge Friedman in Blackman v. D.C. cited to the defendants’ argument that the
National Law Journal “is not a scientific study and that it relied on self-reported rates, which firms
may reduce in practice, and that those rates came from the largest and most prestigious law firms,
not from a representative sampling of firms” in determining that the USAO Laffey Matrix should
apply. 677 F. Supp. 2d 169, 176 (D.D.C. 2010), aff’d, 633 F.3d 1088 (D.C. Cir. 2011). The
National Law Journal was also criticized by Judge Sullivan, who found that it was inapposite in a
case where the plaintiff’s attorneys did not practice in large law firms because it “only examines
the rates of the nation’s 250 largest law firms, which range in size from 392 to 1092 attorneys.”
Heller v. D.C., 832 F. Supp. 2d 32, 45–46 (D.D.C. 2011). More recently, Judge Mehta has noted
that the National Law Journal “is of limited evidentiary value for purposes of establishing the
prevailing market rates in Washington, D.C., for civil rights and copyright litigation,” because it
“does not . . . distinguish billing rates for partners and associates in terms of years of experience,
the type of work performed, or the law firm’s location.” Prunty v. Vivendi, 195 F. Supp. 3d 107,
114 (D.D.C. 2016). This Court has, in fact, rejected reliance on the National Law Journal, agreeing
with Chief Judge Howell that “the National Law Journal Billing Survey ‘is of limited value absent
a showing that these rates also prevail in the particular context of IDEA matters.’” Joaquin, 210
F. Supp. 3d at 74 (D.D.C. 2016) (quoting Eley v. D.C., 201 F. Supp. 3d 150, 161 (D.D.C. 2016)).
On the other hand, the Court finds that the District has submitted evidence showing that
the USAO Matrix had more indicia of reliability and more accurately represents prevailing market
rates. The USAO Matrix “begins with 2011 average hourly attorney rates derived from ALM
17
Legal Intelligence’s 2011 Survey of Law Firm Economics,” which “represents actual average
billing rates of attorneys from all size firms in the Washington, DC metropolitan area.” Malowane
Decl. ¶ 6. Further, as Dr. Malowane explains,
The data used by the USAO Matrix are based on a statistical survey of hundreds of
attorneys in the Washington, DC area. Questionnaires are mailed out and responses are
tallied. Sampling frame and design are clearly stated in the survey and a particular billing
rate is provided in the survey results only if there is sufficient statistical data to assure its
accuracy. In practical terms this means that for each billing rate of each experience level
there must be a sufficient number of firms and individual attorneys providing data to
determine that rate. If there is not a sufficient number of survey respondents for a particular
rate, the billing rate is not provided in the survey results as it is deemed to not be sufficiently
reliable. These survey parameters ensure that the data published in the SLFE are reliable.
Id. ¶ 14. Furthermore, the USAO Matrix more accurately captures an individual’s fees because it
has more narrowly defined categories of years of experience. Id. ¶ 22. Whereas the LSI Matrix
begins with the category of “1–3 years,” ends with “20+ years,” and contains a total of five
experience categories, the USAO Matrix begins with the category of “less than 2 years,” ends with
“31+ years,” and contains a total of nine experience categories. Id. ¶ 21.
The Court is also not swayed by plaintiffs’ own market data, which is summarized in
Exhibit 48, and purports to show that actual market rates are more closely aligned with the LSI
Matrix. As the District notes, however, several methodological issues are present in this data.
First, plaintiffs rely in part on billing rates in bankruptcy matters, which are generally not
conducted for fee paying clients and which tend to be higher than rates charged for other types of
cases. Plaintiffs have also not included the rates for practitioners without the labels of “partner”
or “associate,” such as those who are titled “counsel” or “of counsel.” Furthermore, as explained
in Part IV.B.2.b, infra, much of plaintiffs data is unhelpful in determining whether the “rates
customarily charged by IDEA practitioners in the District are comparable to those provided under”
the LSI Matrix because 1) the affiants are not IDEA practitioners, and 2) it is unclear whether they
actually received these rates.
18
It is clear that this is an issue on which minds differ within this Circuit. The Court
acknowledges that the LSI matrix has been adopted and used by other courts, including the D.C.
Circuit which found in Salazar that the district court “appropriately required the Plaintiffs to
demonstrate the propriety of the rates they sought (i.e., under the LSI Laffey Matrix).” Salazar ex
rel. Salazar v. D.C., 809 F.3d 58, 64 (D.C. Cir. 2015). The Salazar court also found, however,
that the District failed to rebut the plaintiffs’ arguments regarding the propriety of the LSI matrix,
and therefore found that LSI Matrix rates were appropriate. See id. at 65. Here, the District (as
well as the United States in its statement of interest) has rebutted plaintiffs’ arguments to the
satisfaction of this Court. Without guidance from the D.C. Circuit regarding whether IDEA
litigation should be treated as complex federal litigation, and if so, which fee matrix applies—
beyond a brief concurrence of Judge Kavanaugh stating that “United States Attorney’s Office
Laffey matrix is appropriate for IDEA cases,” Eley, 793 F.3d at 105 (Kavanaugh, J., concurring)—
this Court is persuaded that the USAO Matrix is the appropriate fee matrix to apply.
b) Rates Customarily Charged by IDEA Practitioners
Fee applicants may also demonstrate that the “rates customarily charged by IDEA
practitioners in the District are comparable to those provided under” one of the matrices. Joaquin,
210 F. Supp. 3d at 68. Plaintiffs here, however, have failed to show that IDEA practitioners
customarily charge and receive rates equivalent to those found in the LSI Matrix. First, and most
importantly, although plaintiffs submitted numerous affidavits and declarations stating that the
affiant charged rates in line with the LSI Matrix, none of those rates were charged by IDEA
practitioners. See Pls.’ Exs. 50–68, ECF Nos. 537-50–537-68. These cannot be used to support
the argument that IDEA practitioners customarily charge rate comparable to those in the LSI
Matrix.
19
Furthermore, this lack of evidence is compounded by the fact that many of the affidavits
and declarations discuss rates billed or charged, not rates actually received. See Bravin Decl. ¶ 6,
Pls.’ Ex. 50, ECF No. 537-50 (describing rates “charged” and “applied in billing its clients”);
Goldsmith Decl. ¶¶ 7–8, Pls.’ Ex. 51, ECF No. 537-51 (discussing “billing rate[s]” and “hourly
rates charged”); Clement Decl. ¶ 24, Pls.’ Ex. 52, ECF No. 537-52 (discussing rates “billed”);
Hearne Decl. ¶¶ 5, 7, 11, 25, Pls.’ Ex. 53, ECF No. 537-53 (discussing amounts billed and rates
charged); Davidson Decl. ¶¶ 5, 8, 13, 14, Pls.’ Ex. 54, ECF No. 537-54 (testifying to familiarity
with billing rates, “hourly rates typically charged by firms,” “rates charged or sought by firms,”
and “rates that are charged for defense work in the employment field”); Supplemental Davidson
Decl. ¶¶ 16-17, Pls.’ Ex. 55, ECF No. 537-55 (stating that lawyers “have accepted Laffey rates,”
but that LSI rates sought are reasonable); Cacace Decl. ¶¶ 14-15, Pls.’ Ex. 57, ECF No. 537-57
(describing the amounts her law firm “customarily charges to its paying clients” and her own
“billing rate”); Pls.’ Ex. 59, Email from Meghan Largent, ECF No. 537-59 (discussing the amount
“requested”); Light Decl. ¶¶ 6-7, Pls.’ Ex. 62, ECF No. 537-62 (testifying that while his retainer
agreement reflects rates at Enhanced Laffey rates, some clients also receive discounts in the form
of hourly caps, pro bono representation, or contingency fee arrangements); Amunson Decl. ¶¶ 11,
14-16, Pls.’ Ex. 64, ECF No. 537-64 (discussing rates sought); Corn-Revere Aff. ¶ 10, Pls.’ Ex.
65, ECF No. 537-65 (identifying a billing rate); Lewin Aff. ¶¶ 12–13, Pls.’ Ex. 67, ECF No. 537-
67 (discussing an hourly rate charged); Coburn Aff. ¶¶ 5, 15, Pls’ Ex. 68, ECF No. 537-68
(discussing his hourly rate and the rate sought). It is unclear whether such rates were
charged/billed and received. This Court has previously rejected such evidence as sufficient to
show that LSI Matrix is appropriate, see Joaquin, 210 F. Supp. 3d at 74, and another district court
20
has noted the difference between charging fees at certain rates and collecting fees at those rates,
see Eley v. D.C., 201 F. Supp. 3d 150, 161 (D.D.C. 2016).
Finally, plaintiffs do not submit “evidence of recent fees awarded by the courts or through
settlement to attorneys with comparable qualifications handling similar cases.” Eley, 793 F.3d at
101. Plaintiffs identify three cases in which counsel was awarded fees in accordance with the LSI
Matrix: Salazar v. District of Columbia, 809 F.3d 58 (D.C. Cir. 2015); Electronic Privacy
Information Center v. Department of Homeland Security, No. 13-260, 2016 WL 3919810 (D.D.C.
2016); Makray v. Perez, 159 F. Supp. 3d 25 (D.D.C. 2016). None of these cases were IDEA cases.
Salazar was a 42 U.S.C. § 1983 Medicaid class action, Electronic Privacy Information Center was
a FOIA case, and Makray was a Title VII discrimination case. This Court is not aware of any
opinions awarding fees at LSI Matrix rates in IDEA cases. Courts, including this one, have found
instead that use of the LSI Matrix is not warranted in specific IDEA cases. See Joaquin, 210 F.
Supp. 3d at 74; Flores v. D.C., 857 F. Supp. 2d 15, 20 (D.D.C. 2012); Rooths v. D.C., 802 F. Supp.
2d 56, 61–62 (D.D.C. 2011). In fact, as has been discussed in countless other cases, the dispute in
IDEA cases often centers around whether plaintiffs’ counsel are entitled to full Laffey/USAO rates
or 75% of those rates.
In sum, considering the evidence presented by plaintiffs in support of the use of the LSI
Matrix in complex cases, the evidence presented in rebuttal by the District that the USAO Matrix
is more appropriate, and the lack of evidence that IDEA practitioners customarily charge rates in
line with the LSI Matrix, the Court concludes that the reasonable hourly rates to be used in this
case are those set forth in the USAO Matrix. The Court now turns to whether current or historic
rates should apply.
21
c) Current vs. Historic Rates
Beyond arguing that the USAO Matrix should determine the reasonable hourly rates in this
case, the District argues that plaintiffs’ counsel should be compensated for work performed during
Period 1 with 2012 USAO rates plus interest, and should receive current rates for Period 2.
The Court sees no reason to unnecessarily complicate matters in this case by awarding
historic rates plus interest for Period 1. The District appears to concede that there has been a
sufficient delay in payment that warrants some compensation by suggesting that interest be
included. It has presented no convincing reason, however, why this Court should undertake the
process of calculating interest when the process for compensating such a delay has been set out by
the Supreme Court in Jenkins. The District’s real reasoning appears to be that “historical rates
with interest result in a smaller award of attorney’s fees to plaintiffs’ counsel for period 1.” Defs.’
Opp’n at 28, ECF No. 554. The District’s desire to pay a lesser fee award is no reason for this
Court to depart from the Supreme Court’s instructions. Current rates shall be used for both Periods
1 and 2.
C. Reasonableness of Hours Billed
After determining the appropriate billing rate, the next step in determining a fee award is
determine whether the number of hours billed are reasonable.
1. Legal Standards
Courts must “make an independent determination whether or not the hours claimed are
justified.” Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir.
1982). When determining fee awards, “the most critical factor is the degree of success obtained.”
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). “If . . . a plaintiff has achieved only partial or
limited success, the product of hours reasonably expended on the litigation as a whole times a
22
reasonable hourly rate may be an excessive amount.” Id. at 436. However, “the fee award should
not be reduced simply because the plaintiff failed to prevail on every contention raised in the
lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the
court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.
The result is what matters.” Id. at 435. Fees thus may be reduced for time spent on ultimately
unsuccessful claims, but those claims generally must be both unsuccessful and unrelated to the
successful claims. See id. at 434–35 (“[P]laintiff[s] may present in one lawsuit distinctly different
claims for relief that are based on different facts and legal theories,” but “[t]he congressional intent
to limit awards to prevailing parties requires that these unrelated claims be treated as if they had
been raised in separate lawsuits, and therefore no fee may be awarded for services on the
unsuccessful claim”); George Hyman Const. Co. v. Brooks, 963 F.2d 1532, 1535 (D.C. Cir. 1992)
(“Hensley’s first prong requires a trial court or ALJ to conduct an examination of the hours counsel
expended on each claim in the case, weeding out work done on unrelated unsuccessful claims from
any award.”); see also Ibrahim v. U.S. Dep’t of Homeland Sec., 835 F.3d 1048, 1061 (9th Cir.
2016) (“Time spent on unsuccessful claims the court deems related are to be included in the
lodestar, while ‘[h]ours expended on unrelated, unsuccessful claims should not be included’ to the
extent those hours can be ‘isolated.’”).
Although “there is no certain method of determining when claims are ‘related’ or
‘unrelated,’” Hensley, 461 U.S. at 436 n. 12, claims are generally completely unrelated when they
are “‘distinctly different’ in all respects, both legal and factual, from plaintiff’s successful claims.”
Morgan v. D.C., 824 F.2d 1049, 1066 (D.C. Cir. 1987). In such circumstances, no fees should
awarded for the time spent on the unsuccessful claims. Craig v. D.C., 197 F. Supp. 3d 268, 283
(D.D.C. 2016). However, different claims brought in one lawsuit may be interrelated, i.e., they
23
“involve a common core of facts” or are “based on related legal theories” and “cannot be viewed
as a series of discrete claims.” Hensley, 461 U.S. at 435. In such cases, “[m]uch of counsel’s time
will be devoted generally to the litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis,” so “the district court should focus on the significance of the
overall relief obtained by the plaintiff in relation to the hours reasonably expended on the
litigation.” Id. Therefore, “if successful and unsuccessful claims share a common core of facts[,]
. . . a court should simply compute the appropriate fee as a function of degree of success.” Goos
v. Nat’l Ass’n of Realtors, 997 F.2d 1565, 1569 (D.C. Cir. 1993) (internal quotation marks
omitted).
In addition, courts should exclude from fee calculations “hours that were not ‘reasonably
expended,’” i.e., “excessive, redundant, or otherwise unnecessary” hours. Hensley, 461 U.S. at
434. For example, courts may reduce fee awards “for inadequate billing judgment, for hours billed
unrelated or unnecessary to the litigation, for statutorily non-reimbursable time, or for double-
billing.” Shaw v. D.C., 210 F. Supp. 3d 46, 51 (D.D.C. 2016) (internal citations omitted). In
addition, tasks that are clerical in nature, such as filing documents, setting up meetings, and faxing
documents, are non-compensable. Beckwith v. D.C., No. 15-CV-1284-RCL, 2017 WL 1653148,
at *3 (D.D.C. May 1, 2017). Courts may take a “holistic approach” to reducing hours, or may
“identify specific hours that should be eliminated.” McAllister v. District of Columbia, 160 F.
Supp. 3d 273, 279–80 (D.D.C. 2016).
The District argues that the requested fees should be reduced because plaintiffs improperly
billed for matters in which they failed to prevail, because they billed an unreasonable number of
hours for many tasks, and because they failed to exercise reasonable billing judgment. It also
24
argues that fees for several individual attorneys should be reduced substantially or denied. The
Court will take each in turn.
2. Analysis
a) Reductions for Lack of Success
The District argues that plaintiffs’ fees should be reduced based on lack of success due to
the following unsuccessful claims: 1) the claims of Subclass 2; 2) Rehabilitation Act claims from
March 22, 2010 to the present; and 3) plaintiffs’ claim for individual relief. Plaintiffs have
withdrawn and hold in abeyance their request for compensation for work related to individual relief
($155,053.31 by TPM and $18,361.98 by co-counsel), thus the Court need not address this issue.
The Court first determines that the “unsuccessful” claims are so interrelated that they
cannot be viewed as discrete claims for which compensation is barred. Subclass 2 encompassed
disabled three-to-five-year-olds whom the District failed to give an initial evaluation within 120
days of being referred for special education services. Plaintiffs prevailed on the claims of Subclass
2 through April 6, 2011, but not after that. See Nov. 3, 2015 Order, ECF No. 491. The Subclass
2 claims are interrelated to the Subclass 3 claims, which encompassed disabled three-to-five-year-
olds whom the District failed to give an “eligibility determination” within 120 days of being
referred, and upon which plaintiffs prevailed. As this Court explained, “the percentages of timely
evaluations should be nearly identical to the eligibility determination statistics. . . . In fact, the
data may be exactly the same, since, at least for the period from 2011 to the present, the District
has reported data regarding the percentage of timely eligibility determinations, but referred to that
data as the percentage of timely evaluations.” DL, 194 F. Supp. 3d at 80–81. Furthermore, the
Rehabilitation Act claims—on which plaintiffs did not prevail from March 22, 2010 to the
present—are interrelated with the IDEA claims. As this Court previously discussed, this case is
25
at its heart an IDEA case. The Rehabilitation Act provides a remedy when the defendant’s IDEA
violations were committed in bad faith or through gross misjudgment. The Rehabilitation Act
claims in this case rest on top of the IDEA claims.
Given the interrelatedness of the unsuccessful claims to the successful claims, the Court
will consider plaintiffs’ degree of success in determining whether to reduce the fee award.
Plaintiffs largely prevailed on their claims. After the issues of class certification were settled, the
Court found in 2014 that “the District was liable for violating the IDEA and District law for the
period up to April 6, 2011” for all four subclasses. DL, 194 F. Supp. 3d at 37. It ruled for
defendants, however, “on (1) plaintiffs’ IDEA and District law claims related to the failure timely
to evaluate children for special education and related services for the period from April 6, 2011 to
the present [Subclass 2], and (2) all of plaintiffs’ Rehabilitation Act claims for the period from
March 22, 2010 to the present.” Id. Then, at trial, plaintiffs alleged that the District violated the
IDEA with respect to Subclasses 1, 3, and 4 from April 6, 2011 through the present, and that the
District violated the Rehabilitation Act with respect to all four subclasses for the period up to
March 22, 2010. Id. at 37–38. After trial, the Court found that the District had violated the IDEA
with respect to Subclasses 1, 3, and 4 from April 6, 2011 through the first day of trial (November
12, 2015), and that it violated the Rehabilitation Act with respect to all four subclasses through
March 22, 2010. Id. at 88–96. The breakdown of each party’s success is as follows:
IDEA Claims IDEA Claims Rehabilitation Rehabilitation
through April from April 6, Act Claims Act Claims
6, 2011 2011 to present through March from March 22,
22, 2010 2010 to present
Subclass 1 Plaintiffs Plaintiffs Plaintiffs Defendants
Subclass 2 Plaintiffs Defendants Plaintiffs Defendants
Subclass 3 Plaintiffs Plaintiffs Plaintiffs Defendants
Subclass 4 Plaintiffs Plaintiffs Plaintiffs Defendants
26
Clearly, plaintiffs prevailed on the large majority of issues presented in this case.
Moreover, the Court finds that success on the IDEA claims carries more weight than success on
the Rehabilitation Act claim. As has been mentioned numerous times, this was essentially an
IDEA case. To prevail at all, plaintiffs needed to have prevailed on their IDEA claims. Except
for the claims of Subclass 2 from April 6, 2011 to the present, they did so. Therefore, although
some reduction is warranted for lack of success, it must be limited. The Court finds that a 5%
reduction is appropriate. Although 5% may seem small, on a total reward of upwards of $10
million, 5% equals almost $500,000, which is a substantial sum.
The District also argues that plaintiffs’ fee award should be reduced due to the following
unsuccessful litigation strategies: 1) defense of defendants’ appeal in 2012–2013 and 2) efforts
towards settlement. The District filed an appeal after this Court denied its motion to decertify the
class. It was ultimately successful on that appeal. Plaintiffs, of course, defended against the appeal
as was required of them. After appeal and certification of the four subclasses, plaintiffs largely
prevailed, as shown above. The Court does not find that plaintiffs should be penalized for
defending an appeal they were forced to defend as a result of this Court’s decision not to decertify
the class, which was ultimately overturned.
The Court also finds that, absent any indication that the District had completely declined
to engage in settlement efforts and plaintiffs knowingly billed for settlement time anyway,
plaintiffs should be compensated for time spent on settlement efforts. The District’s reliance on
the Cobell decision is misplaced given subsequent proceedings in that case. In 2005, this Court,
considering an interim award of attorney’s fees, found that plaintiffs could not be compensated for
unsuccessful settlement efforts up to that point. Cobell v. Norton, 407 F. Supp. 2d 140, 156
(D.D.C. 2005). The case did not end there, however. Many years of litigation later, the parties
27
reached a settlement agreement, in which they agreed not to appeal a fee award of anywhere
between $50 and $99.9 million. Joint Motion for Preliminary Approval of Settlement at 16, Cobell
v. Salazar (D.D.C. Dec. 10, 2010) (No. 96-cv-1285), ECF No. 3660. Judge Hogan, to whom the
case was later assigned, held a fairness hearing and approved the parties’ settlement, awarding fees
totaling $99 million. Order Granting Final Approval to Settlement ¶ 15, Cobell v. Salazar, 2011
WL 10676927, at *5 (D.D.C. July 27, 2011), ECF No. 3850. The Court of Appeals affirmed Judge
Hogan’s approval of the settlement in 2012. Cobell v. Salazar, 679 F.3d 909 (D.C. Cir. 2012).
Given the subsequent settlement in Cobell, which included a fee settlement, this Court considers
the portion of its earlier fee decision regarding fees for time expended on settlement efforts to have
been essentially abrogated. It does not consider itself bound by that decision and finds that
plaintiffs here should be compensated for their time spent on settlement efforts.
b) Reductions for Inadequate Billing Judgment and Unreasonable
Number of Hours Billed
The District argues that plaintiffs’ fees should be reduced because counsel failed to exercise
billing judgment and because counsel billed an unreasonable number of hours for many tasks.
Specifically, the District argues that plaintiffs’ invoices are excessive for the work performed,
plaintiffs should not be reimbursed for block-billed tasks, plaintiffs’ billing entries are
impermissibly vague, plaintiffs over-lawyered tasks, and plaintiffs improperly billed for clerical
tasks. The Court will address each argument, but takes into consideration the Supreme Court’s
instruction that “[t]he essential goal in shifting fees is to do rough justice, not to achieve auditing
perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).
The Court first considers the closely related issues of billing judgment and the
reasonableness of the number of hours expended. Plaintiffs’ counsel has already eliminated
approximately 10% of their fees, totaling approximately $1.1 million, in the exercise of billing
28
judgment. Some of this time was excluded from plaintiffs’ initial fee petition, some was excluded
as a result of the District’s opposition to plaintiffs’ 2012 petition, and some was excluded as a
result of the District’s opposition to the instant motion. TPM eliminated $67,989.072 for time
marked as “No Charge” from Period 1; $63,710.24 in response to the District’s opposition to
plaintiffs’ 2012 fee application; $1,599.74 in additional reductions made prior to the filing of
plaintiffs’ instant motion; $40,001.04 related to fees which TPM requested in 2012 in relation to
Plaintiffs’ Motion to Compel Discovery; $128,037.68 in fees marked as “No Charge” during
Period 2; and $361,391.49 in additional reductions made with regard to Period 2 prior to the filing
of plaintiffs’ instant motion. See Terris Aff. ¶¶ 31–33, 68–70, Pls.’ Ex. 1, ECF No. 537-1.
Professor Gutman has excluded half of the time spent by his students on this case (228.875 out of
457.75 hours expended; 6.625 hours out of 13 hours and 15 minutes expended; 59.75 hours out of
119.5 hours expended; and 1.5 hours out of 3 hours expended), as well as 4.5 hours (from 72.5)
on work he conducted in 2005 and 2006. Gutman Aff. ¶¶ 10, 16, 17, 21, 23, Pls.’ Ex. 14, ECF No.
537-15. Ms. Kohn has deducted 21.33 hours (from a total of 364.77) from her Period 1 time and
18.7 hours (from a total of 151.80) from her Period 2 time. Kohn Aff. ¶¶ 24, 36, Pls.’ Ex. 16, ECF
No. 537-16. Mr. Mehri also excluded several hours of his time and his paralegal’s time. Mehri
Aff. ¶ 13, Pls.’ Ex. 17, ECF No. 537-17.
In their reply brief, plaintiffs’ counsel excludes additional time from their fee petition.
TPM has deducted an additional $346.32 in costs for Period 1 and $231,760.13 in fees from Period
2. Revised Summary of Fees and Expenses, Pls.’ Ex. 4, ECF No. 566-1; Plaintiffs’ Summary of
Additional Reductions of Time and Expenses with Reply Brief, Pls.’ Ex. 102, ECF No. 566-35.
Professor Gutman has deducted an additional $4,749.50 in fees for Period 2. Id. Ms. Kohn has
2
This figure was calculated using plaintiffs’ proffered rates under the LSI Matrix.
29
deducted an additional $13,612.48 in fees from Period 2. Id. In sum, plaintiffs originally sought
$10,010,956 after excluding $828,702.81 of their fees and expenses in the exercise of billing
judgment. They now seek $9,760,487.55 after further exclusions made in response to the District’s
opposition, totaling $250,468.45. Given plaintiffs’ already performed diligence in excluding
approximately 10% of the fees and expenses incurred in this case in the exercise of billing
judgment and in an effort to exclude time unreasonably billed, the Court finds that no further
reduction is warranted.
The Court next finds that plaintiffs billing entries are not vague or block billed. While
plaintiffs’ billing entries do list separate tasks within one entry, plaintiffs’ time records are divided
into categories and subcategories that relate to the work performed. For example, the categories
include descriptions such as “complaint,” “plaintiffs’ motion for certification,” “plaintiffs’ initial
disclosures,” and “defendant’s motion to dismiss.” The subcategories include descriptors such as
“drafting complaint,” “plaintiffs’ initial brief,” and “plaintiffs’ opposition brief.” When these
categories and subcategories are taken into consideration, plaintiffs’ entries are not vague. Nor do
they run afoul of the rule against block billing—which exists because block billing makes it
impossible to determine how much time within a block is non-compensable if the block contains
certain non-compensable tasks, see Bennett v. Castro, 74 F. Supp. 3d 382, 405 (D.D.C. 2014)—
because the division into categories and subcategories sufficiently shows whether the entire entry
is compensable.
The District’s argument that plaintiffs’ award should be reduced due to over-lawyering—
double billing for tasks—also fails. It appears to the Court that the District is simply speculating
that unnecessary double billing occurred for the exact same task. It is not unusual, particularly in
a large class action such as this, for lawyers to work on teams where multiple members collaborate
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on tasks and attend the same meetings. The District has not identified circumstances in which
multiple members of the plaintiffs’ counsel’s team billed for the exact same task. Cf. Role Models
Am., Inc. v. Brownlee, 353 F.3d 962, 972 (D.C. Cir. 2004) (describing improper double billing
when two individuals billed time for filing the same brief on three occasions).
Finally, the District argues that plaintiffs improperly billed for clerical tasks, such as
assembling invoices, downloading document productions, and maintaining and storing
electronically filed documents. The District has identified much of, but not all of, the work it feels
is clerical. From Period 1, it identifies 169.434 hours of time billed under the category of
Document/Database Management, 13.07 hours of making copies, and .20 hours related to
scanning. From Period 2, the District identifies 20.57 specific hours related to assembling
invoices, downloaded document productions, and document/database management. It also argues
that “[p]laintiffs include ‘case management’ as a billable category, when the work consists of
nothing more than maintaining and sorting electronically filed documents.” Defs.’ Opp’n at 36.
Plaintiffs do include a category called “Case Administration,” which costs of the subcategory
“ECF Management” in which the description of work is “process ECF filings,” and the
subcategory “Document/Database Management” in which the description of work includes
“process ECF filings” as well as various other tasks. Plaintiffs argue that all of this work was
compensable paralegal work.
The Court finds that these entries constitute a mixed bag of compensable and non-
compensable work. On the one hand, work such as document and database management has been
considered compensable paralegal work. See Salazar v. D.C., 991 F. Supp. 2d 39, 55 (D.D.C.
2014). On the other, tasks such as copying and scanning are traditionally considered non-
compensable clerical work. See Jackson v. D.C., 603 F. Supp. 2d 92, 98 (D.D.C. 2009), amended
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in part, 696 F. Supp. 2d 97 (D.D.C. 2010). Therefore, of the 203.27 hours of work performed by
paralegals specifically identified by the District, the Court finds that 50%—or 101.64 hours—are
not compensable.
c) Reductions for Specific Counsel
The District argues that the fee requests of TPM’s co-counsel—Margaret Kohn, Jeffrey
Gutman, and Cyrus Mehri—should be substantially reduced or denied. With respect to Ms. Kohn,
it argues that she billed for matters unrelated to this case—specifically for work related to the
Blackman-Jones lawsuit—and her additional time was cumulative and unreasonable. The Court
first finds that the Blackman-Jones argument fails because, as Ms. Kohn testified in her affidavit,
she gathered information related to the Blackman-Jones case to assist plaintiffs in this case; she
was not billing for work performed on that case. See Kohn Aff. ¶¶ 19, 34. In addition, there is no
evidence that Ms. Kohn’s contributions were cumulative or unnecessary. According to her
affidavit, Ms. Kohn has expertise and extensive experience in special education law, including in
the context of class actions. See Kohn Aff. 1–8. Bruce Terris, lead counsel for plaintiffs, also
testified that “[h]er extensive knowledge of special education law and the Child Find operations,
policies, and practices of the District enabled her to provide essential contributions as class
counsel.” Terris Aff. ¶ 11(b). Finally, the reductions made by Ms. Kohn to her own time are
sufficient to remedy any unreasonable hours billed. Ms. Kohn seeks $283,681.44 for Period 1,
after a $17,618.58 reduction. See Revised Summary of Fees and Expenses. For Period 2, she
seeks $96,328.12, after a reduction of $29,058.68. Id. Beyond any aforementioned across the
board reductions, Ms. Kohn’s fees shall not be further reduced.
The District argues that all of the fees billed by Professor Gutman should be denied because
“[n]o justification exists for awarding work done by law students more than a decade ago—for
which they received school credit, not to mention practical legal experience,” the time entries are
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deficiently vague, and Professor Gutman and his students billed in 15 minute increments thereby
inflating the bills. Defs.’ Opp’n at 43–44. First, there is simply no reason to reduce these fees
because the work was performed many years ago. The purpose of fee-shifting statutes is to
compensate for the work performed, regardless of when it occurred. In addition, it is established
that law students may be awarded fees at paralegal rates. See Covington, 57 F.3d at 1105–07;
Blackman, 677 F. Supp. 2d at 175. Finally, the reductions already made by Professor Gutman are
sufficient to remedy any vagueness or issues with 15 minute billing. As explained above, Professor
Gutman cut in half all of the hours expended by his students in his fee petition. He further reduced
the originally sought $5,988.50 for Period 2 by $4,749.50. See Revised Summary of Fees and
Expenses. The 50% reduction and further exclusion of $4,749.50 are sufficient and Professor
Gutman’s fees shall not be further reduced.
Finally, the District argues that Mr. Mehri’s fees should be denied because his participation
in this case consisted of advising on class certification and settlement, but plaintiffs lost on class
certification and failed to settle. As the Court has already found that plaintiffs are entitled to fees
despite losing the class certification question on appeal and failing to reach a settlement agreement,
the District’s argument with respect to Mr. Mehri is without merit and he is entitled to the fees
sought.
D. Reasonableness of Costs
The District argues that plaintiffs’ costs are excessive and should be reduced significantly.
Specifically, the District argues that ground transportation (via taxi), overnight delivery, overtime
services, telephone charges, and Westlaw and Lexis fees are not reimbursable. The Court rejects
these arguments in part. “Reasonable photocopying, postage, long distance telephone, messenger,
and transportation and parking costs are customarily considered part of a reasonable ‘attorney’s
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fee.’” Sexcius v. D.C., 839 F. Supp. 919, 927 (D.D.C. 1993) (emphasis added). The costs of legal
research are also reimbursable under fee shifting statutes. See Role Models Am., 353 F.3d at 975(“The government urges us to deny any recovery for computer-research charges, but we decline to
do so because such services presumably save money by making legal research more efficient”);
Salazar, 991 F. Supp. 2d at 64 (“Reimbursement under section 1988 for Westlaw and Lexis fees
incurred for ‘computer-assisted legal research’ is standard in this Circuit.”). Therefore, the District
shall reimburse plaintiffs for their travel expenses, telephone charges, and Westlaw and Lexis
charges. Because plaintiffs make no argument with respect to expenses incurred for overnight
delivery ($10,274.44) or overtime services ($284.24), the Court will not award them
reimbursement for these costs.
The District also argues that the expenses sought for printing—  $36,000—are excessive.
Given that much of the material in this case was kept in electronic format, the Court finds that it
is not appropriate to shift the entire cost of printing when the reason for printing is at least partially
simple preference for hard copy. See Gluckman Aff. ¶ 80. The printing expenses shall be reduced
by 50%.
E. Expert Fees
The final disagreement in this case centers around reimbursement for expert fees. Plaintiffs
agree that they cannot recover expert fees under the IDEA. Instead, they seek $121,207.82 for
expenses incurred by their two experts during Period I under the Rehabilitation Act. As both
parties acknowledge, there is a split of authority in district courts regarding whether plaintiffs may
recover expert fees under the Rehabilitation Act. Compare M.M. v. School District of
Philadelphia, 142 F. Supp. 3d 396, 413 (E.D. Pa. 2015) (holding that expert fees are recoverable
in Rehabilitation Act cases), and K.N. v. Passaic City Board of Education, No. 11-399, 2011 WL
345157280, at *15 (D.N.J. 2011) (same), with M.P. ex rel. Independent School District, No. 01-771,
2007 WL 844688, at *4 (D. Minn. 2007) (finding that expert fees are not recoverable under the
Rehabilitation Act), and Mason v. Maine Dept. of Corrections, 387 F. Supp. 2d 57, 64 (D. Me.
2005) (same). Absent clear statutory command or direction from the D.C. Circuit—or any Circuit
Court—the Court agrees with those courts that have held that expert fees are recoverable under the
Rehabilitation Act.
Although this Court has mentioned several times that the importance of the IDEA claims
in this case and the fact that the Rehabilitation Act claims do not exist independently, it is not true
that the Rehabilitation Act added nothing of substance to this case. Plaintiffs had to meet a greater
burden to prove their Rehabilitation Act claims—bad faith or gross misjudgment. If the
Rehabilitation Act claims added nothing to this case, there would have been no reason for them to
proceed all the way through trial. The Court concludes that plaintiffs are entitled to $121,207.82
for expert fees.
V. CONCLUSION
Plaintiffs’ motion for attorneys’ fees and costs shall be granted in part and denied in part.
The IDEA fee caps do not apply in this case. Fees shall be calculated according to the lodestar
method of multiplying the number of hours reasonably expended by reasonable hourly rates.
Hourly rates shall be determined by current USAO Matrix rates. Plaintiffs shall multiple these
rates by the number of hours billed for each timekeeper—after all of the aforementioned voluntary
reductions—less the 101.64 hours the Court has identified as non-compensable clerical work billed
by paralegals. After this calculation, plaintiffs’ fee award shall be reduced by 5% for lack of
success. It shall not be further reduced for issues such as lack of billing judgment, unreasonable
number of hours, block billing, or vagueness. The fee awards for Margaret Kohn, Jeffrey Gutman,
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