Gray v. D.C. Public Schools ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
PAULA GRAY, :
:
Plaintiff, :
:
v. : Civil Action No. 09-1806 (GK)
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
______________________________:
MEMORANDUM OPINION
Plaintiff Paula Gray seeks to collect attorneys’ fees and
other costs incurred in bringing a successful administrative action
under the Individuals With Disabilities Education Act (“IDEA”), 20
U.S.C. § 1400, et seq. Defendants are the Government of the
District of Columbia and the District of Columbia Public Schools
(“DCPS”). This matter is before the Court on Plaintiff’s Motion for
Summary Judgment. Upon consideration of the Motion, Opposition,
Reply, and the entire record herein, and for the reasons stated
below, Plaintiff’s Motion for Summary Judgment is denied.
I. BACKGROUND1
Plaintiff is the parent of a student enrolled at a DCPS
school. Am. Compl. ¶ 2 [Dkt. No. 17]; Answer ¶ 2 [Dkt. No. 19]. On
November 12, 2008, Plaintiff filed a Due Process Complaint alleging
1
Unless otherwise noted, the facts set forth herein are drawn
from the Parties’ Statements of Material Facts Not in Dispute
submitted pursuant to Local Rule 7(h).
that DCPS had denied her child a Free and Appropriate Public
Education (“FAPE”). Am. Compl. ¶¶ 4, 9; Answer ¶ 9; Defs.’ Opp’n
19. On February 16, 2009, the Hearing Officer assigned to
Plaintiff’s case issued a decision in favor of the Plaintiff.2 Am.
Compl. ¶ 9; Answer ¶ 9.
After the Hearing Officer issued the decision, Plaintiff
submitted a petition for attorneys’ fees and costs to Defendants,
seeking $8,240.60. Defendants reimbursed Plaintiff in the amount of
$2,357.80, resulting in a difference of $5,882.80 between what
Plaintiff believes she is owed for the total of attorneys’ fees and
costs relating to her petition and what Defendants have paid.3
On August 20, 2009, Plaintiff filed a complaint in the
Superior Court for the District of Columbia seeking the outstanding
balance on her fee petition. Compl. [Dkt. No. 1-2]. On September
18, 2009, Defendants removed the matter to this Court. Notice of
Removal [Dkt. No. 1]. On September 25, 2009, Defendants filed a
Motion to Dismiss and/or for More Definite Statement [Dkt. No. 2].
Instead of responding to the Motion to Dismiss, Plaintiff first
2
Plaintiff did not file the Hearing Officer’s Decision with
this Court, nor did she submit any information about the substance
of her Due Process Hearing in any other filed document, including
the Complaint, Material Facts Not in Dispute, and Declaration of
Samuel G. Adewusi.
3
Plaintiff repeatedly refers to the amount outstanding as
$5,186.00. Pl.’s Statement of Facts ¶ 10; Pl.’s Mot. for Summ J.
15. Presumably, her figure is simply a calculation error. See
Defs.’ Opp’n Ex. A., at 1.
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sought to oppose removal, filing a Motion to Remand on October 1,
2009 [Dkt. No. 3]. After the parties fully briefed the remand
issue, Plaintiff filed a Motion for Leave to Amend the Complaint on
January 19, 2010 [Dkt. No. 12]. On February 25, 2010, the Court
denied Plaintiff’s Motion for Remand and Defendants’ Motion to
Dismiss, and granted Plaintiff’s Motion for Leave to Amend. On
February 25, 2010, Plaintiff filed her Amended Complaint. On March
1, 2010, Defendants filed their Answer.
On April 28, 2010, Plaintiff filed the Motion for Summary
Judgment now before the Court [Dkt. No. 22]. On June 1, 2010,
Defendants filed their Opposition [Dkt. No. 23]. On June 29, 2010,
Plaintiff filed her Reply [Dkt. No. 24].
II. GOVERNING STANDARDS
Summary judgment may be granted “only if” the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United
States, 473 F.3d 329, 333 (D.C. Cir. 2006). In other words, the
moving party must satisfy two requirements: first, demonstrate that
there is no “genuine” factual dispute and, second, that if there
is, that it is “material” to the case. “A dispute over a material
fact is ‘genuine’ if ‘the evidence is such that a reasonable jury
could return a verdict for the non-moving party.’” Arrington, 473
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F.3d at 333, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if it might affect the outcome of
the case under the substantive governing law. Liberty Lobby, 477
U.S. at 248.
Section 1415(i)(3)(B) of the IDEA gives federal district
courts the authority to “award reasonable attorneys’ fees as part
of the costs to the parents of a child with a disability who is the
prevailing party” in an administrative proceeding. 20 U.S.C. §
1415(i)(3)(B).4 Where the party seeking the attorneys’ fees was the
prevailing party, the court must assess whether the fees sought are
reasonable. See Jackson v. District of Columbia, 696 F. Supp. 2d
97, 101 (D.D.C. 2010). Generally, a “reasonable” attorneys’ fee is
based on the reasonable number of hours expended multiplied by a
reasonable hourly rate. See Nat’l Ass’n of Concerned Veterans v.
Sec’y of Def., 675 F.2d 1319, 1324 (D.C. Cir. 1982); Cobell v.
Norton, 231 F. Supp. 2d 295, 300 (D.D.C. 2002); Blackman v.
District of Columbia, 59 F. Supp. 2d 37, 42 (D.D.C. 1999) (citing
to Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
The plaintiff bears the burden of demonstrating that both the
hourly rate and the number of hours spent on particular tasks are
reasonable. In re North, 59 F.3d 184, 189 (D.C. Cir. 1995);
4
Defendants concede that Plaintiff is the “prevailing party”
for the purposes of § 1415(i)(3)(B) and as such is entitled to an
award of “reasonable attorneys’ fees” under the statute. See Defs.’
Opp’n 1.
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Jackson, 696 F. Supp. 2d at 101; Holbrook v. District of Columbia,
305 F. Supp. 2d 41, 45 (D.D.C. 2004). In order to show the
reasonableness of the hourly rates, “the plaintiff must submit
evidence on at least three fronts: ‘the attorneys’ billing
practices; the attorneys’ skill, experience, and reputation; and
the prevailing market rates in the relevant community.’” Jackson,
696 F. Supp. 2d at 101 (quoting Covington v. District of Columbia,
57 F.3d 1101, 1107 (D.C. Cir. 1995)). The plaintiff may satisfy the
burden of demonstrating the reasonableness of hours spent “by
submitting an invoice that is sufficiently detailed to ‘permit the
District Court to make an independent determination whether or not
the hours claimed are justified.’” Holbrook, 305 F. Supp. 2d at 45(quoting Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1327).
III. ANALYSIS
The total amount in dispute between the parties is $5,882.80.
Plaintiff’s papers seeking these funds are woefully deficient. Most
significantly, Plaintiff’s fee petition lacks sufficient detail,
failing to even identify which attorney, or non-attorney, performed
each activity for which fees are claimed.5 Plaintiff’s opening
5
Plaintiff argues that DCPS’s own “Guidelines for the Payment
of Attorney Fees in IDEA Matters” (“DCPS Guidelines” or
“Guidelines”) only require that names be listed at the very end of
an invoice, and not within individual entries. Pl.’s Reply 3-4.
Plaintiff is wrong. Just because the Guidelines require an invoice
to contain a list of total number of hours owed for each attorney,
does not mean that an attorney, for whom fees are sought, should
not specify what work he or she actually performed. See Defs.’
(continued...)
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submissions, contrary to the practice followed by virtually all
attorneys seeking fees, contained no affidavit or declaration with
which the Court could assess her attorneys’ qualifications,
including their schooling, experience, bar memberships, written
articles, CLE, etc. Only after Defendants filed a detailed
Opposition did Plaintiff think to submit a declaration.
In addition to the fundamental inadequacy of her records,
Plaintiff’s briefs are extremely poorly written, and have numerous
mistakes in grammar, word use, and case citations.6 Finally,
5
(...continued)
Opp’n Ex. B, at 2. Moreover, the Guidelines contain examples of
billing entries which attorneys might use if they are unsure of how
to properly submit a bill. Id. These sample entries contain a space
for each attorney’s name next to each activity. Id. Hence, the
Guidelines clearly anticipate that fee petitions will include the
name of the person performing each activity.
Of course, quite apart from the requirements of DCPS’
Guidelines, Plaintiff should have submitted an invoice that is
sufficiently detailed to “permit the District Court to make an
independent determination whether or not the hours claimed are
justified.” Id. (internal quotations omitted). A petition which
fails to specify which attorneys undertook which activities does
not pass muster.
Plaintiff also claims that the Guidelines expressly permit the
payment of fees for educational advocates employed by a law firm.
Pl.’s reply 4. The crystal clear language of the Guidelines only
permits payment for “advocates hired for the purposes of providing
testimony.” Defs.’ Opp’n Ex. B, at 4 (emphasis added). Plaintiff
has not indicated that any of the educational advocates were hired
for this purpose.
6
For example, in several instances, Plaintiff uses an “id.”
citation with either a clearly erroneous previous citation or no
previous citation at all. See, e.g., Pl.’s Mot. for Summ. J. 3, 4,
11 n. 8.
-6-
Plaintiff resorts to totally inappropriate, inflamatory language.
Pl.’s Reply 8 (calling the DCPS Guidelines “slave labor rates”).
In short, Plaintiff’s papers are disturbingly unprofessional.
Plaintiff has failed to carry her burden of demonstrating that the
hourly rate and the number of hours spent on particular tasks are
reasonable by submitting a sufficiently detailed invoice. In re
North, 59 F.3d at 189; Holbrook, 305 F. Supp. 2d at 45. Had
Plaintiff submitted such inadequate papers before the District of
Columbia paid her counsel based on its own Guidelines’ rates, the
Court would have summarily rejected her request. However, the
District of Columbia did pay $2,357.80 in fees to Plaintiff by
applying its existing Guidelines. Given the inadequacies of
Plaintiff’s submissions, the Court will not award fees at a higher
hourly rate than what the District of Columbia has already paid.
Although the Court will not approve any fee higher than the
Defendants’ Guidelines, it will address the objections Defendants
have raised to Plaintiff’s claimed fees. First, Defendants claim
that Plaintiff’s counsel’s hourly rates are unreasonable. Defs.’
Opp’n 4-17. Second, Defendants argue that specific charges are
unreasonable. Id. at 17-23. Third, Defendants argue that a
statutory fee cap limits Plaintiff’s total recovery of attorneys’
fees to $4,000.00. Id. at 22-23.
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A. Hourly Rates
1. Applicability of the DCPS Guidelines
Initially, Plaintiff’s papers are internally inconsistent as
to whether she wishes to accept the DCPS Guidelines as evidence of
prevailing market rates or not. In her Motion, she first states
that her “bills employ the hourly rate specified by the Defendant
DCPS’ fee schedule” and “urges the Court to apply the hourly rate
that Plaintiff uses to compute her bills, because Plaintiff’s bills
employ the same hourly rate based on the Defendants’ fee schedule.”
Id. at 8. Plaintiff takes a totally contrary position in her Reply,
criticizing the DCPS fee schedule, claiming that “[i]f the DCPS
guidelines is [sic] enforced as requested by the Defendants, the
Courts will be compelling attorneys performing special education
laws to work at slave labor rates.” Pl.’s Reply 8 (emphasis
added).7 Defendants, of course, agree that the DCPS Attorney Fee
Guidelines should set the rates for Plaintiff’s lawyers. Defs.’
Opp’n 7-8.
Although there have been instances where this Court has
reimbursed attorneys at the higher Laffey matrix rates, none of the
reasons relied on in those cases would justify allowing higher
rates than the DCPS Guidelines rates in this case. See Bucher v.
7
Plaintiff goes on to argue, citing a September 29, 2006,
article on Law.com, that because a particular attorney in the
Washington Metropolitan area charged an hourly rate of $1,000, her
proposed rates, which are less than $1000/hour, must be reasonable.
Id. The logic of this argument is hard to discern.
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District of Columbia, F. Supp. 2d , Civ. No. 09-1874, 2011
WL 135676, at *3-5 (D.D.C. April 11, 2011); Cox v. District of
Columbia, F. Supp. 2d , Civ. No. 09-1720, 2010 WL 5018149,
at *7-9 (D.D.C. December 9, 2010).
The rates contained in the DCPS Guidelines are particularly
appropriate in the specific circumstances of this case. First,
despite contrary arguments she raised for the first time in her
Reply, Plaintiff has conceded the appropriateness of the DCPS
Guidelines in her opening Motion. Second, Plaintiff submitted no
evidence whatsoever concerning the complexity, length, or
difficulty of the Due Process Hearing. See Bucher, 2011 WL 1356761,
at *5; Cox, 2010 WL 5018149, at *9. Without any evidence of the
complexity of the administrative process, the Court cannot make the
appropriate independent ruling as to whether or not the hours
claimed are justified. See also Covington, 57 F.3d at 1103(describing the Laffey Matrix as evidence of “prevailing market
rates for comparably experienced attorneys handling complex federal
litigation.”).
2. Applicable Rates for Plaintiff’s Attorneys
Although Defendants agree that Plaintiff’s fees should be
governed by the DCPS Guidelines, Defendants argue that “Plaintiff
has improperly applied the DPCS Attorney Fee scale.” Defs.’ Opp’n
8. The proper application of the Guidelines for each attorney and
paralegal will be discussed in turn.
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a. Fatmata Barrie
Plaintiff seeks an hourly rate of $300 for Fatmata Barrie, who
was admitted to the bar on February 6, 2004. Pl.’s Mot. for Summ.
J. 6; Adewusi Decl. ¶ 1 [Dkt. No. 24-2]. During the relevant time
period, Ms. Barrie had been admitted to the bar for less than five
years. The maximum hourly rate the DCPS Guidelines allow for an
attorney of Ms. Barrie’s experience is $170. Defs.’ Opp’n Ex. B, at
3. Indeed, Plaintiff’s requested rate for Ms. Barrie even exceeds
the relevant Laffey rate of $270/hour.8 Plaintiff offers no
justification for not following the Guidelines. Defendants properly
reimbursed Plaintiff for Ms. Barrie’s work at an hourly rate of
$170.
b. Annie Pressley
Plaintiff seeks an hourly rate of $200 for Annie Pressley.
Pl.’s Mot. for Summ. J. 6. Although Ms. Pressley did graduate from
law school, it appears from Mr. Adewusi’s Declaration that Ms.
Pressley has never been admitted to the bar. Adewusi Decl. ¶ 2.
Needless to say, it is highly inappropriate to charge the rate of
an attorney admitted to the bar for at least five years, as
specified by the DCPS Guidelines, for the work of a non-attorney.
Defs.’ Opp’n Ex. B, at 3. Defendants properly reimbursed Plaintiff
8
Available at http://www.usdoj.gov/usao/dc/Divisions/
Civil_Division/Laffey_Matrix_8.html.
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for Ms. Pressley’s work at the hourly paralegal or law clerk rate
of $90.
c. Samar Malik
Plaintiff seeks an hourly rate of $200 for Samar Malik. Pl.’s
Mot. for Summ. J. 6. Like Ms. Pressley, Ms. Malik did graduate from
law school, but has never been admitted to the bar.9 Adewusi Decl.
¶ 3. Defendants again argue that Ms. Malik’s work should be
reimbursed at the hourly paralegal or law clerk rate of $90 or, if
Plaintiff does show that “she is a member of the D.C. Bar or
authorized to practice in the District of Columbia,” at an hourly
rate of $150. Defs.’ Opp’n 12. Plaintiff has made no such showing.
See Adewusi Decl. ¶ 3. Therefore, Defendants properly reimbursed
Plaintiff for Ms. Pressley’s work at the hourly paralegal or law
clerk rate of $90.
d. Mireya Amaya
Defendants do not contest Plaintiff’s claimed hourly rate of
$85 for Mireya Amaya. Defs.’ Opp’n 12. Therefore, Defendants
properly reimbursed Plaintiff for Ms. Amaya’s work at the hourly
rate of $85.
e. Georgina Oladokun
Plaintiff seeks an hourly rate of $250 for Georgina Oladokun,
who was admitted to the bar on January 1, 2007. Pl.’s Mot. for
9
Ms. Malik’s and Ms. Pressley’s names do not appear in the
searchable database of attorneys admitted to the DC Bar, available
at http://www.dcbar.org/find_a_member/index.cfm.
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Summ. J. 6; Adewusi Decl. ¶ 5. During the relevant time period, Ms.
Oladokun had been admitted to the bar for less than five years. For
the reasons given above, Defendants properly reimbursed Plaintiff
for Ms. Oladokun’s work at the relevant hourly rate of $170 under
the DCPS Guidelines.
f. LaDonna Rogers
Plaintiff seeks an hourly rate of $250 for LaDonna Rogers, who
was admitted to the bar on July 10, 2000. Pl.’s Mot. for Summ. J.
6; Adewusi Decl. ¶ 6. During the relevant time period, Ms. Rogers
had been admitted to the bar for seven to eight years. The maximum
rate the DCPS Guidelines allows for an attorney of Ms. Rogers’s
experience is $225. Defs.’ Opp’n Ex. B, at 3. However, for the
reasons given above, and particularly because Plaintiff’s papers
lack sufficient detail, Defendants properly reimbursed Plaintiff
for Ms. Rogers’s work at the hourly rate of $170.
g. Matt Mixon
Plaintiff seeks an hourly rate of $250 for Matt Mixon, who was
admitted to the bar on October 13, 2006. Pl.’s Mot. for Summ. J. 6;
Adewusi Decl. ¶ 7. During the relevant time period, Mr. Mixon had
been admitted to the bar for less than five years. For the reasons
given above, Defendants properly reimbursed Plaintiff for Mr.
Mixon’s work at the relevant hourly rate of $170 under the DCPS
Guidelines.
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h. Christopher N. Anwah
Plaintiff’s papers are confusing as to why Christopher N.
Anwah is mentioned at all. Plaintiff has included Mr. Anwah’s name
and credentials, as if seeking fees for him, but her fee request
includes no entries relating to him. See Pl.’s Mot. for Summ. J. 8;
Adewusi Decl. ¶ 8. Consequently, Christopher N. Anwah and his
hourly rates are simply irrelevant to this litigation.
B. Specific Charges
Defendants make four challenges to the reasonableness of
specific charges. Defendants claim that (1) certain clerical and
non-professional work should not be compensated at an attorney’s
rate, (2) charges for legal work performed far in advance of the
administrative hearing are not compensable, (3) certain of
Plaintiff’s entries are too vague to merit compensation, and (4)
certain of Plaintiff’s entries are duplicates. See Defs.’ Opp’n 17-
21. Each will be considered individually.
1. “Clerical” and “Paralegal” Activities
Defendants object to the attempt by Plaintiff’s counsel to
charge attorney rates for “various tasks that are clerical
functions not legal ones.” Defs.’ Opp’n 18. Defendants identify
eight entries as “clerical/administrative” or “non-professional.”
Defs.’ Opp’n Ex. B, at 3. For seven of these entries, which include
updating files and discussing the case with colleagues, Defendants
fail to provide a convincing explanation for why the relevant
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activities should be considered clerical. Defs.’ Opp’n 18.
Defendants’ criticisms are of the “nit-picking” variety which this
Circuit has warned against. See Nat’l Ass’n of Concerned Veterans,
675 F.2d at 1337-38 (Tamm, J., concurring) (“Neither broadly based,
ill-aimed attacks, nor nit-picking claims by the Government should
be countenanced.”).
As to one entry, Defendants note that Plaintiff seeks
reimbursement at an attorney’s rate for a quarter-hour spent faxing
a complaint. Defs.’ Opp’n 18. Because this task is purely clerical
in nature, Plaintiff should not be reimbursed for this quarter-hour
of work. Jackson v. District of Columbia, 603 F. Supp. 2d 92, 98
(D.D.C. 2009).
Moreover, as noted above, Plaintiff has not met her burden of
demonstrating the reasonableness of her charges. Therefore,
Defendants properly denied reimbursement of all charges designated
as “clerical” or “paralegal.”
2. Charges Relating to Activities in Advance of the
Hearing
Defendants next challenge certain costs on the ground that
those charges “have no temporal proximity to the ‘action’ or
‘proceeding’ on which the right to fees is based.” Defs.’ Opp’n 19.
Defendants argue that all charges for “activities dating from March
3, 2008, to July 16, 2008, for a due process complaint filed on
November 12, 2008,” should be disallowed. Id. Defendants offer no
reasoned defense for this cut-off.
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In Lax v. District of Columbia, the court found that a year in
advance of a hearing “is an entirely reasonable window of time to
be engaging in productive work that will result in a favorable
administrative decision” based on a showing by the plaintiff that
each charge was tied to a particular hearing. Civ. No. 04-1940,
2006 WL 1980264, at *4 (D.D.C. July 12, 2006). Here, in light of
the generally insufficient nature of her records, Plaintiff has not
made a satisfactory showing that each charge was tied to a
particular hearing.10 In this context, Defendants properly denied
reimbursement of the charges designated as too far in advance of
the hearing.
3. “Vague” Charges
Defendants argue that entries with descriptions such as
“Telecon with mother” or “Prehearing conference with mother and
[redacted]” are too vague to determine whether they are reasonably
related to the Due Process Complaint. Defs.’ Opp’n 20; Defs.’ Opp’n
Ex. B, at 4.
While it is clear that an invoice “need not present the exact
number of minutes spent nor the precise activity to which each hour
was devoted nor the specific attainments of each attorney,” Nat’l
Ass’n of Concerned Veterans, 675 F.2d at 1327 (quoting Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)), Plaintiff has not
10
It is worth noting that Plaintiff has not even specified the
date her Due Process Hearing was held.
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met her burden of demonstrating the reasonableness of her charges
because of her failure to link attorneys with the work they
performed. Therefore, the Defendants properly denied reimbursement
of the charges designated as “vague.”
4. “Duplicate” Entries
Finally, Defendants challenge one entry as “duplicated
elsewhere in the invoice.” Defs.’ Opp’n 21. Plaintiff’s fee
petition does contain two entries for the same day with precisely
the same description. Pl.’s Mot. for Summ. J. Ex. B, at 4. At the
very least, Plaintiff has not satisfied her burden of demonstrating
the reasonableness of this entry “by submitting an invoice that is
sufficiently detailed to ‘permit the District Court to make an
independent determination whether or not the hours claimed are
justified.’” Holbrook, 305 F. Supp. 2d at 45. Therefore, the
Defendants properly denied reimbursement of the charge designated
as “duplicate.”
C. Fee Cap
Plaintiff has sought a total of $8,240.60 from Defendants. For
the reasons given above, Defendants properly limited this award to
$2,357.80. The Court need not, therefore, address the merits of
Defendants’ contention that Plaintiff’s fee petition is subject to
a $4000 fee cap. See Defs.’ Opp’n 22-23. However, the Court must
note that Plaintiff’s arguments on this topic exhibit the same lack
of care shown elsewhere in her papers. Plaintiff makes repeated
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reference to the “2007/2008 fiscal year.” Pl.’s Mot. 9; Pl.’s Reply
18. There is no such thing as a “2007/2008 fiscal
year”––Plaintiff’s terminology is simply wrong; there is either a
“2007 fiscal year” or a “2008 fiscal year,” and they cover
different periods of time. Moreover, Plaintiff fails to address the
substance of Defendants’ argument. Regardless, Plaintiff’s proper
reimbursement falls well below the $4000 fee cap.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for
Summary Judgment is denied.
/s/
April 26, 2011 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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