Bucher v. District of Columbia ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
WARD BUCHER, et al., :
:
Plaintiffs, :
:
v. : Civil Action No. 09-1874 (GK)
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
______________________________:
MEMORANDUM OPINION
Plaintiffs Ward Bucher and his minor son J.B. seek 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. Defendant is the
Government of the District of Columbia.1 This matter is before the
Court on Plaintiffs’ Motion for Summary Judgment. Upon
consideration of the Motion, Opposition, Reply, and the entire
record herein, and for the reasons stated below, Plaintiffs’ Motion
for Summary Judgment is granted in part.
1
Nominal Defendants Michelle A. Rhee, former Chancellor of
the District of Columbia Schools, and Kerri Briggs, former Acting
State Superintendent of Education for the District of Columbia,
were dismissed with consent of Plaintiffs on November 5, 2009.
I. BACKGROUND
A. Factual History2
Plaintiff J.B., now nine years old, is “an intellectually
gifted child with a problem with work production due to problems
with fine motor control and visual motor integration.” H.O.
Decision 6, ¶ 12. In the past, J.B. has scored in the 99th
percentile for his age group in ability to reason, verbal skills,
and vocabulary. Id. at 7, ¶ 17. His intellectual reasoning skills
have scored at or above the 95th percentile. Id. J.B. has also
shown above average ability in non-verbal skills. Id. at 8, ¶ 18.
However, J.B. suffers from a number of disabilities which have
“made it difficult for [him] to sustain focused attention and
effort as well as to regulate his behaviors.” Id. at 8, ¶ 19. These
disabilities include Attention Deficit/Hyperactivity Disorder
(“ADHD”), with which J.B. was diagnosed in 2007, and an auditory
processing learning disorder and sensory integration disorder, with
which J.B. was diagnosed in 2008. Id. at 6, ¶ 12. J.B. has also
“exhibited behavioral issues in the classroom, including . . .
aggression, non-compliance, inability to accept any criticism . . .
and difficulty socializing.” Id. at 10, ¶ 28. These disabilities
2
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) and from the Hearing
Officer’s Decision (“H.O. Decision”), Compl. Ex. A [Dkt. No. 1-2].
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would cause J.B. to “struggle in a typical school environment.” Id.
at 12, ¶ 35.
In 2007, when J.B. was approximately six years old, he was
asked to leave his Montessori preschool because of his behavioral
problems. Id. at 4, ¶ 2. J.B. was then asked to leave his next
school, which was in Guatemala, due to aggression toward other
students. Id.In May 2008, J.B.’s father attempted to enroll him in his
neighborhood school run by the District of Columbia Public Schools
(“DCPS”). Id. at 5, ¶ 4. The school refused. Id. On May 8, 2008,
J.B.’s father sent the school a letter explaining his son’s
disabilities and requesting evaluations and a meeting to discuss
accommodating J.B.’s needs. Id. at 5, ¶ 5. Finally, and only after
intervention by the DCPS Ombudsman’s Office at the request of
J.B.’s parents, the school scheduled a meeting for August 20, 2008.
Id.The notice J.B.’s parents received for the August 20 meeting
did not indicate that “this meeting would be an eligibility
meeting, or even that the neighborhood school staff planned to
discuss evaluations and eligibility.” Id. at 5, ¶ 8. At the
meeting, the school staff informed J.B.’s parents that they would
not find J.B. eligible for special education until J.B. had
attended a general education classroom for ten days. Id. at 5-6,
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¶ 8. The staff did not address the parents’ request for
evaluations. Id. at 6, ¶ 8.
Because J.B.’s parents believed that placing him “in a general
education classroom for even a short time would be traumatic” and
feared “another behavioral incident,” they enrolled J.B. in a non-
public school for the 2008-2009 school year. Id. at 6, ¶ 9. J.B.’s
parents also paid for private occupational therapy, tutoring, and
neurological and auditory evaluations for J.B. Id. at 6, ¶ 10.
On March 31, 2009, Plaintiffs filed a Due Process Complaint
alleging that DCPS had denied J.B. a FAPE. Id. at 2. J.B.’s hearing
lasted four days, during which time Plaintiffs called nine
witnesses and submitted numerous exhibits. Pls.’ Statement of Facts
¶¶ 8-10. On June 18, 2009, the Hearing Officer determined that,
the testimony overwhelmingly established that
[J.B.] is eligible for special education as a
student with multiple disabilities. Yet, DCPS
ignored Petitioner’s repeated requests for an
eligibility meeting. When finally forced to
hold the meeting by the DCPS Ombudsman’s
Office, DCPS failed to provide Petitioners
adequate notice that they would discuss
[J.B.]’s eligibility for special education.
Then, after discussing [J.B.]’s disabilities
and need for specialized instruction, the team
failed to make an eligibility determination or
decision about the request for evaluations.
Instead, the DCPS team decided to throw the
Student into a general education classroom to
see if he ‘would sink or swim.’ . . . DCPS
denied [J.B.] a free, appropriate, public
education in failing to find [him] eligible
for special education.
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H.O. Decision 16-17. The Hearing Officer ordered DCPS to reimburse
Plaintiffs for the costs of J.B.’s tuition for 2008-2009 and the
tutoring and evaluations undertaken at Plaintiffs’ expense, and to
pay for J.B. to continue to attend his non-public school for the
2009-2010 and 2010-2011 school years. Id.After the Hearing Officer issued the decision, Plaintiffs
submitted a petition for attorneys’ fees and costs to DCPS, seeking
$50,155.00. Pls.’ Statement of Facts ¶ 30. DCPS reimbursed
Plaintiffs in the amount of $26,436.00, resulting in a difference
of $23,719.00 between what Plaintiffs believe they are owed for the
total of attorneys’ fees and costs relating to J.B.’s petition and
what Defendant has paid. Pls.’ Statement of Facts ¶¶ 32-33.
Defendant concedes that it owes Plaintiffs $1779.47 in fees. Def.’s
Opp’n Ex. A, at 1. Therefore, costs of $21,939.53 relating to
J.B.’s case remain in dispute.
B. Procedural History
On October 1, 2009, Plaintiffs filed their Complaint [Dkt. No.
1] seeking the outstanding balance from their fee petition. On
November 23, 2009, Defendant filed its Answer [Dkt. No. 9]. On
December 17, 2009, Plaintiffs filed a Motion for Summary Judgment
[Dkt. No. 12]. On June 25, 2010, Defendant filed its Opposition
[Dkt. No. 30]. On July 23, 2010, Plaintiffs filed their Reply [Dkt.
No. 32].
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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
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).3 Where the party seeking the attorneys’ fees was the
3
Defendants concede that Plaintiffs are the “prevailing
party” for the purposes of § 1415(i)(3)(B) and as such are entitled
to an award of “reasonable attorneys’ fees” under the statute. See
Def.’s Opp’n 3.
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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);
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
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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
Defendant makes two basic objections to the fees sought by
Plaintiffs. First, Defendant claims that Plaintiffs’ counsel’s
hourly rates are unreasonable. Specifically, Defendant contends
that Plaintiffs’ reliance on the “Laffey Matrix” is not justified
and that Plaintiffs should be reimbursed at the lower rates set by
DCPS. Def.’s Opp’n 4-10. Second, Defendant argues that specific
charges are unreasonable. Id. at 10-15. These claims will be
addressed in turn.
A. Hourly Rates
Plaintiffs seek fees for counsel Karen D. Alvarez at an hourly
rate of $300 for time billed before April 24, 2009, and at an
hourly rate of $350 for time billed after April 24, 2009. Pls.’
Mot. for Summ. J. 1. Plaintiffs rely on the fact that these rates
are below the rates specified in the Laffey Matrix, which sets out
compensable billing rates for attorneys in the District of Columbia
and has been adopted by the judges of this District in many cases.
Id. at 3. Defendant objects on the ground that DCPS’s own
“Guidelines for the Payment of Attorney Fees in IDEA Matters”
(“DCPS Guidelines”), which limit rates for attorneys to $300 per
hour, are a more appropriate benchmark than the Laffey Matrix.
Def.’s Opp’n 5-8.
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The Laffey Matrix, approved long ago in Laffey v. Northwest
Airlines, Inc., 572 F. Supp. 354, 371-72 (D.D.C. 1983), rev’d on
other grounds, 746 F.2d 4 (D.C. Cir. 1984), provides a fee schedule
for attorneys based on experience. See Covington, 57 F.3d at 1105.
The Laffey Matrix has been updated periodically “to reflect current
billing rates in the community.” District of Columbia v. Jeppsen,
686 F. Supp. 2d 37, 38 n. 1 (D.D.C. 2010).
Defendant observes that the Laffey Matrix “was intended and
designed for representation in federal civil litigation, not
administrative proceedings.” Def.’s Opp’n 5; see Covington, 57 F.3d
at 1103 (describing the Laffey Matrix as evidence of “prevailing
market rates for comparably experienced attorneys handling complex
federal litigation.”). Defendant argues that Plaintiffs’ hearing
was not complex and therefore related attorneys’ fees should not be
determined by the Laffey Matrix. Def.’s Opp’n 5-6. Defendant
proposes that the DCPS Guidelines provide a more suitable formula.
Id. at 7. Defendant relies on Agapito v. District of Columbia, 525
F. Supp. 2d 150 (D.D.C. 2007) (Collyer, J.), which adopted the DCPS
Guidelines in place of the Laffey Matrix in awarding fees based on
IDEA litigation. Id. at 6.
This Court recently considered precisely the same argument and
rejected it. Cox v. District of Columbia, __ F. Supp. 2d __, Civ.
No. 09-1720, 2010 WL 5018149, at *8 (D.D.C. Dec. 9, 2010) (citing
Jackson, 696 F. Supp. 2d at 102) (Urbina, J.) (“numerous judges in
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this district have applied Laffey rates in the context of fee
awards arising out of IDEA administrative proceedings.”); Kaseman
v. District of Columbia, 329 F. Supp. 2d 20, 25-26 (D.D.C. 2004)
(Huvelle, J.); Brown v. Jordan P.C.S., 539 F. Supp. 2d 436, 438
(D.D.C. 2008) (Leon, J.); Bush ex rel. A.H. v. District of
Columbia, 579 F. Supp. 2d 22, 27 (D.D.C. 2008) (Urbina, J.);
Abraham v. District of Columbia, 338 F. Supp. 2d 113, 124 (D.D.C.
2004) (Collyer, J.); Nesbit v. District of Columbia, Civ. No. 01-
2429, at 1 (D.D.C. Nov. 4, 2003) (Order) (Kessler, J.)). As Judge
Urbina concluded in Jackson, Agapito has “no binding effect on this
court, [is] contrary to the weight of precedent and declined to
address the decisions listed above, with which [it is] in
conflict.” 696 F. Supp. 2d at 102.
Moreover, Defendant’s claim that J.B.’s hearing was
“uncomplicated” is untenable. See Def. Opp’n 5. J.B.’s hearing
lasted twenty-seven hours across four days. H.O. Decision 3; Pls.’
Statement of Facts ¶ 7. The Hearing Officer considered forty-two
proposed exhibits, the testimony of nine witnesses for the
Plaintiffs, including five expert witnesses, and written closing
statements. H.O. Decision 3-4; Pls.’ Statement of Facts ¶¶ 8-10. In
addition, Plaintiffs’ counsel had to prepare for the testimony of
the twelve witnesses for whom Defendant provided notice of its
intention to call. Pls.’ Statement of Facts ¶ 11.
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Agapito involved no such complex matters, “no pre-hearing
interrogatories or discovery, no production of documents or
depositions, no psychiatrists or psychologists testifying about
learning disabilities, no briefings of intricate statutory or
constitutional issues, no pre-trial briefings, no lengthy hearings,
no protracted arguments, and few, if any, motions filed.” 525 F.
Supp. 2d at 152.
Finally, as noted in Cox, “Defendant offers no reasoned
defense for its own Guidelines.” 2010 WL 5018149, at *9. The
affidavit of Quinne Harris-Lindsey cites no justification for
imposing a $300 per hour cap on all IDEA attorneys’ fees, or for
rejecting the Laffey Matrix, which has been so widely accepted, and
no empirical evidence of prevailing attorney rates in Washington,
D.C. See Def.’s Opp’n Ex. B. Nor is there evidence that these
Guidelines went through any kind of process for the issuance of
administrative regulations, where public comment could be submitted
and considered. See D.C. Code § 2-505 (setting out procedures for
notice and comment rulemaking). In short, application of the Laffey
Matrix is appropriate here.
The Laffey Matrix sets out an hourly rate of $465 for work
performed in 2008-2009 by attorneys with more than twenty years of
experience. Plaintiffs seek an hourly rate of only $300 for time
billed before April 24, 2009, and an hourly rate of $350 for time
billed after April 24, 2009, for Alvarez, who has practiced law for
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over twenty-four years. See Pls.’ Mot. for Summ. J. 1; Alvarez
Decl. ¶ 8 [Dkt. No. 12-3]. Alvarez has represented clients in
proceedings before the DCPS Student Hearing Office for thirteen
years. Alvarez Decl. ¶ 9. Given this experience, $300 is a
reasonable rate for Alvarez’s time billed before April 24, 2009,
and $350 is a reasonable rate for Alvarez’s time billed after April
24, 2009, on this matter.
B. Specific Charges
Defendant makes five challenges to the reasonableness of
specific charges. Defendant claims that (1) certain clerical and
non-professional work should not be compensated at an attorney’s
rate, (2) charges for legal work performed far before the
administrative hearing are not compensable, (3) certain of
Plaintiffs’ entries are too vague to merit compensation, (4)
certain of Plaintiffs’ entries are duplicates, and (5) Plaintiffs
are not entitled to reimbursement for routine costs and overhead.
See Def.’s Opp’n 10-15. Each will be considered individually.
1. “Clerical” and “Paralegal” Activities
Defendant objects to the attempt by Plaintiffs’ counsel to
charge attorney rates for certain work performed, “such as calls
and letters to request records from a school.” Def.’s Opp’n 11.
Defendant similarly argues that certain activities should have been
billed at a paralegal rate––though Defendant does not provide any
rationale for the way in which it categorizes these entries. Id. at
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15. Defendant relies on Bailey v. District of Columbia, 839 F.
Supp. 888 (D.D.C. 1993), for the proposition that clerical fees may
only be permitted where an attorney is a solo practitioner. Def.’s
Opp’n 11. Defendant also argues that the activities reimbursed for
in Bailey were less “elementary” than the tasks at issue here. Id.However, the court in Bailey specifically recognized that
attorneys “operating either as solo practitioners or in small
firms, often lack the resources to retain a large staff of junior
lawyers who could handle such tasks more economically” and that
“[d]enying plaintiffs compensation for these tasks would unfairly
punish plaintiffs and their counsel for not staffing this case as
if they had the manpower of a major law firm.” 839 F. Supp. at 891(emphasis added); see also Jeppsen, 686 F. Supp. 2d at 39. Here,
Plaintiffs’ counsel does not have office staff and must perform
such activities herself. Alvarez Decl. ¶ 64.
Further, Defendant fails to explain why tasks such as “Reading
and responding to correspondence from the DCPS Office of General
Counsel,” “Obtaining evidence of J.B.’s progress at British School
of Washington,” and “Correspondence with an expert witness
concerning his testimony” should be categorized as “administrative
clerical.” See Pls.’ Mot. for Summ. J. 12. Certainly these
activities, which DCPS deemed clerical, are not “much more
elementary” than “opening computer files and drafting retainer
agreements,” for which Plaintiffs were compensated in Bailey.
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Def.’s Opp’n 11. Similarly, Defendant provides no explanation for
categorizing entries such as “Telephone call with client; discuss
Branson eval and findings” and “Plan and Prepare for hearing;
correspondence Ed. Consultant” as work that “should have been
billed at the paralegal rate.” Def.’s Opp’n Ex. A, at 12-13. For
these reasons, it is appropriate and reasonable to reimburse these
charges at an attorney’s rate.
2. Charges Relating to Activities in Advance of the
Hearing
Defendant next challenges certain costs on the ground that
charges “more than a year prior” to the Due Process Hearing “are
too remote in time to have any relationship to the administrative
proceedings,” which occurred on May 11-13 and June 8, 2009. Def.’s
Opp’n 12. Defendant contends that “in the absence of some
extraordinary explanation detailing how the actions directly
related to the administrative proceeding,” such charges must be
deemed unreasonable. Id. at 12-13.
This Court previously rejected this argument in Cox. 2010 WL
5018149, at * 11. In Cox, this Court noted that one of the cases
relied upon by Defendant directly contradicts its claim. Id. 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 merely on a showing by the plaintiff that each
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charge was tied to a particular hearing. Civ. No. 04-1940, 2006 WL
1980264, at *4 (D.D.C. July 12, 2006).
Nonetheless, the Court may “‘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). Plaintiffs’ attorney states that thirteen hours billed
between April 21 and August 31, 2008, “represented time spent
counseling Plaintiffs on DCPS’ obligations to permit them to
register J.B.” and other activities related to attempting to enroll
J.B. at the neighborhood DCPS school. Alvarez Decl. ¶ 28. Although
plaintiffs in IDEA cases must make strategic decisions that are
essential to their future success in a Due Process Hearing well
before the hearing itself, the Court finds that devoting thirteen
hours to these particular activities was not justified. These
thirteen hours should be reduced by 25%, or 3.25 hours. Therefore,
3.25 hours billed before April 24, 2009, at an hourly rate of $300,
or $975.00, should be deducted from Plaintiffs’ request.
3. “Vague” Charges
Defendant argues that entries with descriptions such as
“Review of email from ed consultant” or “Schedule witness” are too
vague to determine whether they are reasonably related to the Due
Process Complaint. Def.’s Opp’n 13.
To be sufficient, an invoice “need not present the exact
number of minutes spent nor the precise activity to which each hour
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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)). Plaintiffs’ entries
make it sufficiently clear that counsel was working on issues
related to J.B.’s Due Process Complaint. Defendant’s 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.”). The
charges Defendant has described as vague or lacking specificity are
reasonable and appropriate.
4. “Duplicate” Entries
Defendant next challenges twelve entries as “apparently
duplicated elsewhere in the invoice.” Def.’s Opp’n 14. Defendant
provides no explanation for why it believes these entries represent
duplicated work, other than, presumably, that the language in these
entries is similar to the language in other entries. Plaintiffs
have satisfied their 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. Indeed, the entries which Defendant calls
“duplicative” were clearly marked in Plaintiffs’ reimbursement
request with separate dates and, in some cases, distinct
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descriptions. See Def.’s Opp’n Ex. A, at 11; Compl. Ex B.
Therefore, the supposedly “duplicate” entries are reasonable and
appropriate.
5. “Routine” Costs
Defendant challenges eight entries as “routine business
expenses . . . not reimbursable under IDEA.” Def.’s Opp’n 14. Two
of these challenged entries, “Communicate ed consultant Re filing,
etc.” and “Review eval file,” are clearly compensable for the
reasons spelled out above. See supra Part III.B.1.
As for the remaining six entries, which all represent travel
to and from hearings, Defendant argues that “[s]uch expenses are
not allowable.” Def.’s Opp’n 14. Defendant is incorrect. “In this
circuit, travel time generally is compensated at no more than half
the attorney’s appropriate hourly rate.” Blackman v. District of
Columbia, 397 F. Supp. 2d 12, 15 (D.D.C. 2005) (citing Cooper v.
United States R.R. Ret. Bd., 24 F.3d 1414, 1417 (D.C. Cir. 1994));
A.C. ex rel. Clark v. District of Columbia, 674 F. Supp. 2d 149,
159 (D.D.C 2009); Laster v. District of Columbia, Civ. No. 05-1875,
2006 WL 2085394, at *4 (D.D.C. July 25, 2006).
Because travel time is compensated at half the attorney’s
rate, however, compensation for the six entries reflecting travel
should be reduced. Blackman, 397 F. Supp. 2d at 15. Therefore, four
hours billed after April 24, 2009, at an hourly rate of $350, or
$1,400.00, should be deducted from Plaintiffs’ request.
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IV. CONCLUSION
Plaintiffs’ Motion for Summary Judgment is granted in part.
Plaintiffs’ request for $23,719.00 in reimbursement is reduced by
$2,375.00. Defendant must reimburse Plaintiffs’ for attorneys’
costs and fees in the amount of $21,344.00.
/s/
April 11, 2011 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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