Jones v. District of Columbia ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
TAMIKA JONES, )
Plaintiff, )
v. ) Civil Action No. 11-170 (AK)
DISTRICT OF COLUMBIA, )
Defendant. )
____________________________________)
MEMORANDUM OPINION
This matter is pending before this Court on Plaintiffs’ Motion for [summary judgment on
the issue of] Fees and Costs (“Fee Motion”) and Memorandum in support thereof
(“Memorandum”) [10]; Defendant’s opposition to the Motion (“Opposition”) [11]; and
Plaintiff’s reply to the Opposition (“Reply”) [12].1 Plaintiff Tamika Jones (“Plaintiff’) has
requested $1,762.10 in legal fees and costs, a portion of which is contested by Defendant District
of Columbia (“Defendant” or “the District”) on grounds that the hourly rate charged by
Plaintiff’s counsel is excessive and some of counsel’s billing entries are “remote” in time.
(Opposition, Exh. 1 [Defendant’s chart of proposed allowable fees and reasons for fee
reductions].) The District does not contest Plaintiff’s prevailing party status in this case.
I. BACKGROUND
Plaintiff is the parent of a minor child who prevailed in an administrative action brought
pursuant to the Individuals with Disabilities Education Act and the Individuals with Disabilities
in Education Improvement Act ( collectively “IDEA”), 20 U.S.C. § 1400 et seq. Pursuant to 20
U.S.C. §1415(i)(3)(B), a court may award attorney’s fees to a parent who prevails in an IDEA
proceeding. Prior to filing this civil action, the Plaintiff participated in a due process hearing on
1
This same Fee Motion is filed in multiple cases involving claims for attorneys’ fees and
costs; the Plaintiff in this action is Tamika Jones.
December 19, 2007, wherein the Hearing Officer determined whether DCPS’s “rejection of
[counsel’s] election on behalf of his client was arbitrary and capricious [and that counsel’s]
correspondence . . . put DCPS on notice that he represented Petitioner.”] (December 24, 2007
Hearing Officer’s Interim Order (“HOD”) at 5.)
The Hearing Officer concluded that the “decision to ignore [counsel’s] unambiguous
election of an MDT meeting instead of a product from the Catalog violated the specific terms
and intent of the Decree.” (HOD at 6.) The Hearing Officer further ordered DCPS to “convene
an MDT meeting.” (Id.)
Plaintiff originally filed her complaint for legal fees and costs with the Small Claims and
Conciliation Branch of the Superior Court of the District of Columbia. Defendant removed this
and other simultaneously filed cases to this Court and the parties subsequently consented to the
referral of all such cases to the undersigned Magistrate Judge for all purposes. The parties were
directed to brief the issues in these cases in the form of motions for legal fees and responses
thereto.
II. LEGAL STANDARD
The IDEA gives courts authority to award reasonable attorney’s fees to the parents of a
child with a disability who is the prevailing party. 20 U.S.C. §1415(i)(3)(B). An action or
proceeding under IDEA includes both civil litigation in federal court and administrative
litigation before hearing officers. Smith v. Roher, 954 F. Supp. 359, 362 (D.D.C. 1997); Moore
v. District of Columbia, 907 F.2d 165, 176 (D.C. Cir. 1990), cert. denied, 498 U.S. 998 (1990).
The plaintiff has the burden of establishing the reasonableness of any fee requests. See
In re North, 59 F.3d 184, 189 (D.C. Cir. 1995); Covington v. District of Columbia, 57 F.3d 1101,
2
1107 (D.C. Cir. 1995) (“[A] fee applicant bears the burden of establishing entitlement to an
award, documenting the appropriate hours, and justifying the reasonableness of the rates.”) “An
award of attorneys’ fees is calculated by multiplying a reasonable hourly rate by the number of
hours reasonably expended on the case.” Smith, 954 F. Supp. at 364 (citing Hensley v.
Eckerhard, 461 U.S. 424, 433 (1983)); Blum v. Stenson, 465 U.S. 886, 888 (1984). The result of
this calculation is the “lodestar” amount. Smith, 954 F. Supp. at 364.
20 U.S.C. §1415(i)(3)(C) states that “[f]ees awarded under this paragraph shall be based
on rates prevailing in the community in which the action or proceeding arose for the kind and
quality of services furnished.” 20 U.S.C. §1415(i)(3)(C). To demonstrate a reasonable hourly
rate, the fee applicant must show: an attorney’s usual billing practices; counsel’s skill,
experience and reputation; as well as the prevailing market rates in the community. Covington,
57 F.3d at 1107. The determination of a “market rate for the services of a lawyer is inherently
difficult” and is decided by the court in its discretion. Blum, 465 U.S. at 896 n.11. “To inform
and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce
satisfactory evidence . . . that the requested [hourly] rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. An attorney’s usual billing rate may be considered the “reasonable rate” if it
accords with the rates prevailing in the community for similar services by lawyers possessing
similar skill, experience and reputation. Kattan by Thomas v. District of Columbia, 995 F.2d
274, 278 (D.C. Cir. 1993) (emphasis added).
A party moving for summary judgment on legal fees accordingly must demonstrate
prevailing party status and the reasonableness of the fees requested in terms of hours spent and
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hourly rate. Under Fed. R. Civ. P. 56 (a), summary judgment shall be granted if the movant
shows that there is “no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.” Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Summary judgment should be granted against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The court is required to draw all justifiable inferences in the nonmoving party’s favor and
to accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. The nonmoving
party must establish more than “the mere existence of a scintilla of evidence” in support of its
position. Id. at 252. Nor may the non-moving party rely on allegations or conclusory
statements; instead, the non-moving party is obliged to present specific facts that would enable a
reasonable jury to find it its favor. Greene v Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
III. ANALYSIS
A. Reasonableness of Hourly Rates
Plaintiff seeks fees for the services of two lawyers and three paralegals, to be paid at the
following rates: $475.00 per hour for Douglas Tyrka, an attorney with approximately 10 years
experience during the relevant time period, $268.00 per hour for Zachary Nahass, an attorney
with approximately 1-2 years experience during the relevant time period, and
$139.00/$146.00/$150.00 per hour for Patrick Meehan, Yanet Scott and Michael Tchorni, who
were paralegals with the firm Tyrka & Associates during that same period of time.2 (Plaintiff’s
2
The law firm’s hourly rate for paralegal charges occurring after May 31, 2008 increased
from $146/hour to $150/hour, even though the “enhanced” Laffey Matrix rates increased from
$146/hour to $152/hour during that same time.
4
Itemization of Fees/Expenses, attached to Notice of Removal [1]; Fee Motion [10], Exh. 2
[Verified Statement of Douglas Tyrka (“Tyrka”)] ¶¶ 8 -11, 15.) According to Tykra’s Verified
Statement (“Verified Statement”), “[t]he hourly rates in the itemization are the rates Tyrka &
Associates has customarily charged.” (Exh. 2 ¶4.)
Tyrka further asserts that “clients have retained Tyrka & Associates with the
understanding and agreement that the client would retain full responsibility for all fees regardless
of what was reimbursed by third parties, at rates consistent with ‘the Laffey [M]atrix’ as adjusted
per the finding in Salazar v. District of Columbia, 123 F. Supp. 2d 8, 14-15 (D.D.C. 2000), and
other cases.” (Exh. 2 ¶4.)3 Plaintiff relies upon the rates set forth in the “enhanced” Laffey
Matrix in her request for attorney’s fees but Tyrka’s Verified Statement does not indicate how
frequently Plaintiff’s counsel is paid at these “enhanced” Laffey rates.4 Nor has counsel
presented affidavits attesting to the actual billing rates of lawyers who do similar IDEA work.
Furthermore, the Plaintiff has not provided specific information about the nature or complexity
3
The Laffey Matrix is “a schedule of charges based on years of experience” developed in
Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other grounds, 746
F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985), as modified by Save Our
Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988). The Laffey Matrix
was first developed based upon information about the prevailing rates charged for complex
federal litigation in the District of Columbia, and it is maintained by the United States Attorney’s
Office for the District of Columbia and is updated annually to reflect increases in the local
Consumer Price Index. See Laffey Matrix - 2003-2012, n.3, available at:
htttp://www.justice.gov/usao/dc/divisions/civil_Laffey_Matrix_2003-2012.pdf.
The “enhanced” Laffey Matrix is a schedule of fees based on the original Laffey Matrix, with
adjustments to reflect increases in the national Legal Services Index, prepared by the United
States Bureau of Labor Statistics. (Fee Motion, Exh.3.)
4
See generally MacClarence v. Johnson, 539 F.Supp.2d 155, 160 (D.D.C.
2008)(expressing concern that “standardized hourly rates overcompensate lawyers whose
practices are contingent fee based and therefore compensated at an hourly rate they never charge
and none of their clients could pay”).
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of the IDEA administrative work performed in this case.
Plaintiff asserts that in order to demonstrate prevailing market rates, she may “point to
such evidence as an updated [enhanced] version of the Laffey Matrix or the U.S. Attorney’s
Office [“USAO”] Matrix, or [her] own survey of prevailing market rates in the community.”
(Memorandum in support of Fee Motion (“Memorandum”) at 8 (citing Covington, 57 F.3d at
1109 (additional citation omitted))). In the Covington case, which involved allegations of civil
rights violations, the Court of Appeals for the D. C. Circuit did look to Laffey rates for prevailing
market rates but the relevant market therein was “complex federal litigation,” 57 F.3d at 1110.
In contrast, this case involves IDEA litigation, which is not complex federal litigation because
most if not all of the attorney’s fees in question are the result of counsel’s preparation for
attendance at routine administrative hearings. Accordingly, the Laffey Matrix rates are
inapplicable as prevailing market rates.
Plaintiff additionally relies upon Rooths v District of Columbia, Civil Action No. 09-
0492, Report and Recommendation of March 31, 2011, and Friendship Edison Pub. Charter
Sch. v. Suggs, Civil Action No. 06-1284, Motion for Attorneys’ Fees of July 10, 2008 and
Memorandum Opinion of March 30, 2009 at 5-8. (Fee Motion, Exhs. 5-7).5 According to
Plaintiff, in these two IDEA cases litigated in this United States District Court, the firm’s clients
received an award of fees “based on rates exactly in line with those presented here, . . . ”
(Memorandum at 8.)
5
Plaintiff relies on Friendship Edison Pub. Charter Sch. v. Suggs, Civil Action No. 06-
1284, Motion for Attorneys’ Fees of July 10, 2008 and Memorandum Opinion of March 30,
2009 at 5-8, but this case is inapposite because there was no challenge to the reasonableness of
the hours expended by counsel or the hourly rates in that case.
6
As a preliminary matter, this Court notes that the mere showing that a high hourly rate
was approved in another case does not in and of itself establish a new market rate or prove that
the new rate is reasonable. Furthermore, Plaintiff’s reliance on Rooths v District of Columbia,
Civil Action No. 09-0492, Report and Recommendation of March 31, 2011 at 10-11 (Fee
Motion, Exh. 5), is misplaced because the trial court ultimately rejected the application of
enhanced Laffey rates, applied Laffey Matrix rates as a starting point, and then reduced those
rates by 25%. Rooths v District of Columbia, 802 F.Supp.2d 56, 63 (D.D.C. 2011).
In Rooths, the Honorable Paul L. Friedman noted that “[i]n this circuit, the rates
contained in the Laffey Matrix are typically treated as the highest rates that will be presumed to
be reasonable when a court reviews a petition for statutory attorneys’ fees.” 802 F Supp. 2d 61.
The trial court declined “to approve as reasonable the inflated rates contained in a proposed
alternative fee matrix.” Id.; see Blackman v. District of Columbia, 677 F. Supp. 2d 169, 176
(D.D.C. 2010) (in determining prevailing market rates, the court declined to apply enhanced
Laffey rates). The Rooths court further refused to apply enhanced Laffey rates, in part because it
found that the “[enhanced Laffey] matrix was generated using national statistics rather than
measurements particular to the District of Columbia area.” 802 F. Supp.2d at 62 (emphasis in
original); see also DL v. District of Columbia, 256 F.R.D. 239, 243 (D.D.C. 2009) (because the
USAO [Laffey] Matrix accounts for price inflation within the local community, it more aptly
focuses on the relevant community than the [enhanced] Laffey Matrix based on the legal services
index). The Rooths court commented that “[w]hile it is doubtless true that some sectors of the
legal services industry have experienced rapid fee inflation in recent years, [it was] unconvinced
that fees associated with IDEA litigation in the District of Columbia have increased at the same
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rate.” 802 F. Supp. 2d at 62.
Recognizing the difficulty courts encounter in determining what are reasonable legal
fees, this Court agrees with the rationale set forth in Rooths, and finds that the Plaintiff’s reliance
on an enhanced Laffey Matrix is unsupported because such Matrix does not provide an accurate
representation of District of Columbia legal fees applicable to IDEA cases. Nor has Plaintiff
demonstrated that IDEA litigation involving administrative hearings is the type of “complex
federal litigation” encompassed by the Laffey rates. See McClam v. District of Columbia, Civil
Action No. 11-381 (RMC), September 6, 2011 Memorandum Opinion at 8 (declining to apply
Laffey rates in part on grounds that “IDEA cases are generally not complex [and in that case,]
Plaintiffs . . . pointed to no novel issue or other complexity that turned this, particular IDEA
case into a complicated piece of litigation.”)6
Defendant’s argument against imposition of Laffey rates primarily focuses on the Rooths
and McClam decisions, supra. but the Defendant also asserts that “Plaintiffs have made no
serious attempt to show that rates under the Laffey Matrix are appropriate in this case or, more
specifically, that Laffey rates were necessary to attract competent counsel in the underlying,
special education matters.” (Opposition at 13.)7 Defendant further argues that there is no
“inherent right to Laffey rates.” (Opposition at 13 (citation omitted)); see Lively v Flexible
6
The McClam court acknowledged that “[f]ederal district courts in this circuit disagree
whether Laffey rates should be applied in IDEA cases.” McClam Memorandum Opinion at 6
(citations omitted).
7
See Kenny A. v. Perdue, 130 S. Ct. 1662, 1672 (2010) “a ‘reasonable’ fee is a fee that is
sufficient to induce a capable attorney to undertake the representation of a meritorious civil
rights case”); see also Lively v. Flexible Packaging Association, 930 A.2d 984, 990 (D.C. 2007)
(cautioning that the goal of fee-shifting provisions is not to provide counsel with a windfall but
to attract competent counsel).
8
Packaging Assoc., 930 A.2d 984, 990 (D.C. 2007) (accepting the Laffey Matrix as one legitimate
means of calculating attorney’s fees and using it as a starting point instead of an automatic
application). Federal courts do not automatically have to award Laffey rates but instead they can
look at the complexity of the case and use their discretion to determine whether such rates are
warranted. See Muldrow v. Re-Direct, Inc., 397 F. Supp. 2d 1, 4-5 (D.D.C. 2005) ( awarding
fees at a rate 25% less than Laffey in a “relatively straightforward negligence suit”).
This Court follows the reasoning of the Rooths case and other cases declining to apply
enhanced Laffey rates. Considering that this is a straightforward case seeking IDEA legal fees,
this Court concludes that the Plaintiff has failed to demonstrate that the hourly rates set by her
counsel, which are based on enhanced Laffey rates, are reasonable.8 Such enhanced rates do not
reflect what the local legal market will bear in terms of legal fees for IDEA litigation. Using the
[USAO] Laffey Matrix as a starting point for determination of a reasonable hourly rate, this
Court determines that the hourly rate for Douglas Tyrka [attorney with 10 years experience]
would be $315.00/hour, instead of $475.00/hour, and the hourly rate for Zachary Nahass
[attorney with 2 years experience] would be $215.00, instead of $268.00, while the rate for a
paralegal [Patrick Meehan, Yanet Scott and Michael Tchorni] would be $120.00/$125.00/
$130.00 instead of $139.00/$146.00/$150.00.
These rates should be further reduced however because the Laffey Matrix rates are the
presumed maximum rates appropriate for “complex federal litigation,” Covington v. District of
Columbia, 57 F.3d at 1103, and IDEA litigation generally does not fall within that category. The
8
By statute the Court determines the reasonableness of the hourly rate for the legal fees.
The negotiated legal fee hourly rate between the attorney and his client may be more or less than
the hourly rate set by the Court.
9
case at issue is no exception to that general rule insofar as it involves a routine administrative
proceeding summarized in the Hearing Officer’s Interim Order dated December 24, 2007 (HOD
[1]) and the time spent [billed] in preparation for the hearing was nominal. (Itemization of
Fees/Expenses.) In such a case, an hourly rate below the Laffey Matrix rates is appropriate. See
Wilson v. District of Columbia, Civil Action No. 09-2258, 2011 WL 1428090, at *3 (D.D.C.
Apr. 14, 2011) (Laffey Matrix is “not generally applicable to IDEA cases because they are not
usually complex”); A.C. ex rel. Clark v. District of Columbia, 674 F.Supp.2d 149, 155 (D.D.C.
2009) (finding the USAO Laffey inapplicable in an IDEA case where “almost all of the
attorney’s fees in question are the result of counsel’s preparation for attendance at routine
administrative hearing”); Agapito v. District of Columbia, 525 F.Supp.2d 150, 155 (D.D.C.
2007) (adjusting attorney fee award and declining to rely on the Laffey Matrix for these
“relatively simple and straightforward IDEIA cases”). The Court will therefore award fees at an
hourly rate equal to three-quarters of the USAO Laffey Matrix rate, which is $236.00/hour for
Tyrka, $161.00 for Nahass and $90.00/$94.00/98.00 for Meehan, Scott, McKenzie and Tchorni.9
B. Challenges to Time Charges
Defendant claims that some of the hours billed by Plaintiff’s counsel should not be
compensated because they are too remote in time as to “preclude a meaningful relationship with
the hearing.” (Opposition at 16, citing Czarniewy v. District of Columbia, 2005 U.S. Dist.
9
Defendant notes that a 25% reduction in Laffey Matrix rates brings these fees in line
with its DCPS Fee Guidelines (Opposition at 15); however, it is not the intent of this Court to
mirror the DCPS Fee Guidelines but instead to apply a percentage reduction that represents the
fact that most IDEA litigation [involving administrative proceedings] is not complex federal
litigation warranting the application of Laffey Matrix rates.
10
LEXIS 5161, at *11 (D.D.C. March 25, 2005)). See also Role Models America, Inc. v.
Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (where administrative fee charges have no
temporal proximity to the proceeding on which the right to fees is based but instead appear to be
administrative matters between counsel and his client, these charges are not appropriate for
reimbursement). Defendant asserts that “[t]he statute does not contemplate an undefined form of
ongoing representation of students [but instead] [i]t quantifies the activities for which school
districts are obliged to reimburse legal representation to the administrative process described in
20 U.S.C. §1415. . . .” (Opposition at 16.)
A review of the time sheets submitted by Plaintiff shows that the time charges noted by
counsel have sufficient temporal proximity to the date of the HOD. Some of the time entries
pre-date and include the due process hearing, reflecting preparation for and attendance at the
hearing; several time entries note the hearing and counsel’s actions taken in response to the
HOD; and finally, some time entries following the HOD reflect follow-up by counsel, including
time spent ensuring HOD compliance. This Court will not further reduce time charges based on
Defendant’s claim that some charges are remote.
C. Costs
Plaintiff seeks costs in the amount of $6.60 for expenses arising from copying ($.10 per
page) and faxing ($1.00 per page). Costs for copying, faxing and postage are customarily
included in fee awards in IDEA litigation. Kaseman v. District of Columbia, 329 F. Supp. 2d 20,
28 n.7 (D.D.C. 2004). These total costs are not contested by the Defendant and will be awarded
to the Plaintiff.
D. Fees and Costs Awarded
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The amount of fees and costs requested by Plaintiff is $1,762.10, which can be broken
down into $1,755.50 for legal fees, and $6.60 for costs. The legal fees claimed were based on
1.25 hours billed at $475.00/hour, 3.25 hours billed at $268.00/hour, .75 hour billed at
$139.00/hour, .25 hour billed at $146.00/hour and 1.0 hour billed at $150.00/hour. This Court
has determined that hourly rates based on 75% of the Laffey Matrix rate are applicable, which
means that 1.25 hours are billed at $236.00/hour, 3.25 hours are billed at $161.00/hour, .75 hour
is billed at $90.00/hour, .25 hour is billed at $94.00/hour, and 1.0 hour is billed at $98.00/hour.
Total fees thus equal $1,007.25, and total costs equal $6.60, which together total $1,013.85.
DATED: May 14, 2012 _________________/s/________________
ALAN KAY
UNITED STATES MAGISTRATE JUDGE
12