McAllister v. District of Columbia

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSEPHINE MCALLISTER, et al., :
:
Plaintiffs, : Civil Action No.: 11-cv-2173 (RC)
:
v. : Re Document No.: 21,23
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
I. INTRODUCTION
The plaintiffs are the parents of children with special needs who litigated cases
brought against the District of Columbia Public Schools (“DCPS”) under the Individuals with
Disabilities Education Act of 2004 (“IDEA”), 20 U.S.C. § 1415 et seq. This case, an aggregate
of twenty-three separate matters, presents the plaintiffs’ claims for attorneys’ fees under the fee-
shifting provision of the IDEA. Specifically, plaintiffs seek a total of $386,139.52 in attorneys’
fees, plus costs for hours billed by Tyrka & Associates, LLC from 2008 to 2013.
II. LEGAL STANDARDS
A. Summary Judgment
A party moving for summary judgment on legal fees must demonstrate prevailing party
status and the reasonableness of the fees requested in terms of hours spent and hourly rate. See
infra Part B. Pursuant to 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 that the moving party is entitled
to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)
(quoting Fed. R. Civ. P. 56). 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 non-moving party’s favor
and to accept the non-moving party’s evidence as true. Anderson, 477 U.S. at 255. The non-
moving party must establish more than “the mere existence of a scintilla of evidence” in support
of its position. Id. at 252. The non-moving party cannot 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 in its favor. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
B. Individuals with Disabilities Act (“IDEA”)
Pursuant to the IDEA, a district court may award “reasonable attorneys’ fees” to a
prevailing party who is the parent of a child with a disability. 20 U.S.C. § 1415(i)(3)(B).
Accordingly, a court bases its award of fees on a two-step inquiry: first, the court must determine
whether the party seeking attorney’s fees is the prevailing party, and second, the court must
determine whether the requested fees are reasonable. See Jackson v. Dist. of Columbia, 696 F.
Supp. 2d 97, 101 (D.D.C. 2010).
First, a plaintiff must demonstrate that she is a “prevailing party” to recover any
attorney’s fees under the IDEA. 20 U.S.C. § 1415(i)(3)(B). A “prevailing party” is one “who
has been awarded some relief by the court.” Buckhannon Bd. & Care Home, Inc. v. W. Virginia
Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001). Specifically, “plaintiffs may be
considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant
2
issue in litigation which achieves some of the benefit the parties sought in bringing suit.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275,
278 (1st Cir. 1978)); see also Artis ex rel. S.A. v. Dist. of Columbia, 543 F. Supp. 2d 15, 22
(D.D.C. 2008) (noting that “[a]lthough a hearing office may make a prevailing party
determination, it is the province of the district court to make the ultimate decision as to who
prevailed in an IDEA action”). In District of Columbia v. Straus, the Court of Appeals applied a
three-part test to determine prevailing party status: “(1) there must be a ‘court-ordered change in
the legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the
fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” 590 F.3d 898,
901 (D.C. Cir. 2010) (quoting Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C. Cir.
2003)).
After concluding that a plaintiff is a “prevailing party,” the court must then determine
whether the fees sought are reasonable. 20 U.S.C. § 1415(i)(3)(B). As this will depend on a
case’s particular facts, “[t]he most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate” – the so-called “lodestar fee.” Hensley, 461 U.S. at 433; see also
Jackson, 696 F. Supp. 2d at 101 (applying Hensley in the IDEA context).
The plaintiff bears the burden of establishing the reasonableness of any fee requests,
specifically that both the hourly rate and the number of hours spent on any particular task are
reasonable. In re North, 59 F.3d 184, 189 (D.C. Cir. 1995). A plaintiff may do so by submitting
evidence on at least three fronts: “the attorneys’ billing practices; the attorneys’ skill, experience,
and reputation; and the prevailing market rates of the relevant community.” Covington v. Dist. of
Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). Once the plaintiff has provided such
3
information, a presumption arises that the number of hours billed is reasonable and the burden
shifts to the defendant to rebut the plaintiff’s showing. Id. at 1109-10. However, if both parties
fail to present satisfactory evidence demonstrating that their hourly rates are reasonable, the court
may determine the amount of that rate by reference to the Laffey Matrix.1 See Rooths v. Dist. of
Columbia, 802 F. Supp. 2d 56, 62 (D.D.C. 2011).
III. ANALYSIS
A. The Number of Hours Billed by Plaintiffs’ Counsel
1. Attorney’s Fees for Students N.M. and S.S.
a. The Plaintiffs Are Prevailing Parties in Both N.M’s Case and in S.S.’s Case.
The defendant argues that the plaintiffs are not entitled to an award of attorney’s fees for
students N.M. and S.S. because they failed to achieve prevailing party status. See Def.’s Opp’n
Mot., 18, June 25, 2013, ECF No. 22. Further, the defendant argues that even if the Court finds
that the plaintiffs prevailed in these cases, the Court should nonetheless reduce any fees awarded
to account for their limited success. See Def.’s Reply, 8, July 30, 2013, ECF No. 26.
To reach prevailing party status in the N.M. and S.S. case, the plaintiff, in both cases,
must have: (1) experienced a court-ordered change in its relationship with the District; (2)
obtained a favorable judgment; and (3) received a judicial pronouncement accompanied by some
judicial relief. See Straus, 590 F.3d at 901 (articulating the three-part test for determining
prevailing-party status). However, a party need not succeed on every claim to reach prevailing
party status; it is within a court’s discretion to consider the extent to which a party prevails on
various issues in calculating fee awards. See Hensley, 461 U.S. at 433 (explaining that if a party
1
The Laffey Matrix is a matrix of hourly rates for attorneys of varying experience levels and
paralegals/ law clerks. The matrix is prepared by the Civil Division of the United States
Attorney’s Office for the District of Columbia for use when a “fee-shifting” statute permits the
recovery of reasonable attorney’s fees.
4
enjoys limited success on the merits, a court may reduce an award accordingly). “The
touchstone of the prevailing party inquiry must be the material alteration of the legal relationship
of the parties in a manner which Congress sought to promote in the fee statute.” Tex. State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989).
Defendant argues that there was no material alteration of the legal relationship between
the parties in the N.M. case because, although the hearing officer found that N.M. was denied a
FAPE, the only relief awarded plaintiff was an MDT/IEP meeting where a Spanish-English
translator would be present, which DCPS is already required to provide by law. Def’s Opp’n, 19-
20; see also Pl.’s Mot. Summ. J., Ex. 1c, 11,May 14, 2013. In support of this argument,
Defendant cites to White, et al., v. District of Columbia, where Judge Huvelle found no material
alteration of the legal relationship when a hearing officer found there was no denial of a FAPE
and ordered a new MDT/IEP meeting as the sole relief. No.11-cv-1292, at *9 (D.D.C. June 18,
2012). However, in White the ordered MDT/IEP meeting would have occurred regardless of
whether the Plaintiff or the Defendant prevailed at the administrative hearing. White, No.11-cv-
1292 at *9 (finding no alteration of the parties legal relationship because “the order to convene
the meeting would have been issued no matter who prevailed”); see also McCrary v. Dist. of
Columbia, 791 F. Supp. 2d 191, 199 (D.D.C. 2011) (finding that an order to convene a
placement meeting was insufficient to alter the legal relationship of the parties because the
student was incorrectly placed at a private school, and a placement meeting would have been
necessary regardless of whether the plaintiff or defendant prevailed).
That is not the case here. The hearing officer ordered a new MDT/IEP meeting for N.M.
precisely because the Plaintiff met its burden of proof and prevailed on a substantive issue: that
N.M’s parent was “denied the right to meaningful participation in Student’s 3/10/08 IEP meeting
5
when DCPS failed to provide adequate translation from English to Spanish.” Pl.’s Mot., Ex 1c, 9.
And as the hearing officer noted, the denial of this procedural right at the meeting was
“significant because Parent wanted and still wants, another educational placement for Student.”
Pl.’s Mot., Ex 1c, 9. Had the hearing officer found that the Defendant prevailed on this
procedural issue, the 3/10/08 IEP meeting would have been procedurally adequate, and no new
meeting would have been required. Thus, unlike in White and McCrary, an MDT/IEP meeting
would not have been ordered regardless of which party prevailed, and thus the hearing officer’s
order altered the legal relationship of the parties.
Defendant argues that Student S.S. was also not a prevailing party because S.S. only
“obtained one-fourth of the relief requested.” Def.’s Mot., 21. However, Defendant cites no
authority supporting this argument that Plaintiff must win a significant portion of its requested
relief in order to constitute a prevailing party. And in fact, that is not the law in this District.
“[T]he degree of the plaintiff’s success in relation to the other goals of the lawsuit is a factor
critical to the determination of the size of a reasonable fee, not to eligibility for a fee award at
all.” Tex. State Teachers Ass’n, 489 U.S. at 790 (emphasis added). Thus “[w]hile partial versus
complete success is a consideration in assessing the amount of fees, the critical question in
evaluation of the availability of fees is whether fee claimants have received any benefit at all.”
Grano v. Barry, 783 F.2d 1104, 1109 (D.C. Cir. 1986). (citation omitted). DCPS does not contest
that S.S. received some benefit from the due process hearing, nor does it contest that such relief
altered the legal relationship of the parties. And the hearing officer’s order requiring DCPS to
fund an independent vocational evaluation is a material alteration of the parties legal
relationship. See e.g., McNeil v. Options Public Charter School, 2013 WL 791199, at *5 (D.D.C.
March 1, 2013) (collecting cases where courts found that an order to conduct evaluations at the
6
public expense was a material alteration of the legal relationship between the parties). Thus, the
Court finds that both S.S. and N.M. are prevailing parties.
b. The Court Will Reduce Plaintiffs’ Award To Account For Limited Success.
Defendant next argues that even if the Court finds that the plaintiffs prevailed in these
cases, the Court should nonetheless reduce any fees awarded to account for their limited success.
See Def.’s Reply, 8. It is within the court’s discretion to reduce an attorney’s fee award to
account for limited success on the merits. Hensley, 461 U.S. at 433. And both N.M. and S.S.
received less than all of the relief sought, thus justifying a reduction in fees. See Dickens v.
Friendship-Edison P.C.S., 724 F. Supp. 2d 113, 121-23 (D.D.C. 2010) (reducing the fee award
because the plaintiffs received some but not all of their requested relief). Here the court may
reduce fees to account for the plaintiffs’ limited success in a number of ways, such as by
eliminating specific hours or reducing the award as a whole. Hensley, 461 U.S. at 436-37.
When determining how to reduce fee awards for partially successful plaintiffs, the court
must analyze the relationships amongst the successful and unsuccessful claims. See id. at 434-35(explaining that the more closely related the claims, the more difficult it will be to divide the
hours on a claim-by-claim basis). If the claims “involve a common core of facts,” or are based
on “related legal theories,” “[m]uch of counsel’s time will likely be devoted to the litigation as a
whole, making it difficult to divide the hours on a claim-by-claim basis.” Id. at 435.
Accordingly, the court should “focus on the significance of the overall relief obtained by the
plaintiff in relation to the hours that counsel reasonably expended on the litigation.” Id.; see
Henlsey, 461 U.S. at 436-37 (explaining that a court may make this determination in a number of
ways, such as by eliminating specific hours or by reducing the award as a whole).
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The parties agree that N.M. received relief on only one of three claims. See Pl.’s
Surreply 2, ECF No. 29. Defendant argues that the fees should thus be reduced by two-thirds.
See Def.’s Reply, ECF No. 26. The plaintiff posits that most of the work can be associated with
either the successful or the unsuccessful claims, and thus an adjustment based on the division of
work is more appropriate. See Pl.’s Sur-reply, 2, Aug. 5, 2013, ECF No. 29. The Court finds
that the issues are interrelated and thus will not divide the hours on a claim-by-claim basis, but
instead will reduce the full award amount.
The hearing officer found that N.M. was denied a FAPE on only one of the three issues
for which N.M. requested relief. See Pl.’s Mot. Summ. J. Ex. 1c at 9, ECF No. 21 (finding that
the parent was denied meaningful participation in the student’s IEP meeting when DCPS failed
to provide adequate English to Spanish translation). Nevertheless, this claim still shares a
“common core of facts” to the remaining two claims on which N.M. lost: that DCPS was not
implementing N.M.’s IEP, and that N.M.’s school was an inappropriate placement. Pl’s Mot.
Summ. J., Ex. 1c, 9.
For example, the claim that DCPS failed to implement N.M.’s IEP stemmed, in part,
from the claim that DCPS failed to provide adequate translation. And both of these claims,
although one successful and one unsuccessful, contributed to N.M.’s overall argument that
N.M.’s school was an inappropriate placement. In fact, the hearing officer explicitly recognized
this link between the successful claim and the unsuccessful educational placement claim. See
Pl.’s Mot. Summ. J. Ex. 1c at 9, ECF No. 21 (asserting that the successful claim was “also
significant because Parent wanted, and still wants, another educational placement for Student”).
Accordingly, because the claims are sufficiently interrelated, the court should not divide the
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hours on a claim-by-claim basis, but instead should reduce the award of attorneys’ fees. See
Hensley, 461 U.S. at 436-37 (focusing on the overall relief obtained).
The Court further believes it appropriate to reduce the total award by one-half. Of the
three requests for relief, only two were truly separate substantive requests: 1) the request for a
new MDT meeting, (on which N.M. was successful), 2) the request to place N.M. at the
Episcopal Center for Children (on which N.M. was unsuccessful). Pl.’s Mot., Ex. 1c, 4. The third
request for relief, a finding of denial of a FAPE on the previously presented issues, was merely a
derivative declaratory request. Id. N.M. was ultimately successful on only the significantly
secondary issue. After all, the MDT meeting may not result in the primary relief sought by N.M.
— the change in school placement. See Hensley, 461 U.S. at 436-37 (focusing on the overall
relief obtained). Nevertheless, the Court finds that a reduction by one-half is appropriate even
though Plaintiff was successful on only a secondary issue. A certain amount of the work
performed in any case is performed for all claims, and cannot be so easily sub-divided.2
The parties similarly disagree over the extent to which the petitioner S.S. prevailed.
Compare Def.’s Reply, 9, (asserting that the petitioner was only successful on one-quarter of the
claims presented) with Pl.’s Sur-reply, 2. (arguing that the petitioner obtained two-thirds of the
relief requested). S.S’s complaint requested three types of relief: 1) A declaration that S.S. was
denied a FAPE in all four claims at issue; 2) injunctive relief in the form of an independent
vocational evaluation, and a meeting to review all evaluations and to revise the IEP as
appropriate; and 3) substantive relief in the form of compensatory education. See Pl.’s Sur-reply,
Ex. 2, 3. S.S. obtained partial declaratory relief (a finding that FAPE was denied as to one of the
2
The Court finds Plaintiff’s claims analysis to be fairly logical and noted that the
Defendant never responded to the argument, nor sought leave to file a sur-reply to address the
new argument raised for the first time in Plaintiff’s sur-reply. See Pl’s Sur-reply in support of
Pl’s Mot. Summ. J., 2, Aug. 5, 2013, ECF No. 29.
9
four claims presented) and full injunctive relief. See Pl.’s Mot. Summ. J., Ex. 1d at 27-28
(asserting that the petitioner failed to meet its burden of proof on all but one issue presented). As
a result, the Court finds that Plaintiff obtained approximately one-third of the relief requested.
However, the Court again recognizes that a certain amount of work performed in any case is
performed for all claims, and cannot be so easily sub-divided. Accordingly, the Court will reduce
the attorney fee award by one-half to reflect S.S’s limited success.
2. Specific Time Charges
a. The Court Will Not Award Fees For An Advocate.
The defendant argues that all fees billed by Ms. Sharon Millis should be deducted from
the plaintiff’s invoice because Ms. Millis is an educational advocate and not a paralegal, as she is
billed. See Def.’s Opp’n, 16. The Supreme Court has held that costs relating to the services of a
non-attorney educational consultant are not authorized under the IDEA. See Arlington Cent. Sch.
Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 300 (2006) (“[t]he terms of the IDEA
overwhelmingly support the conclusion that prevailing parents may not recover the costs of
experts or consultants.”). The Plaintiffs counter that Ms. Millis’s work is properly credited as
paralegal work, as her professional role fits within the definition of a paralegal or legal assistant,
and that her time should be included in the attorneys’ fees award. See Pl.’s Reply, 9-10; Pl.’s
Mot. Summ. J., Ex. 3, ¶20.
Although Plaintiffs assert that Ms. Millis exclusively serves as a paralegal, Ms. Millis
describes her current position on her CV as an “Independent Special Education Advocate/ Expert
for Special Education Attorneys/Courts/Parents.” Def.’s Reply, Ex. 1. Moreover, this Court has
previously denied attorneys’ fees for the work of Ms. Millis on the grounds that she is not a
paralegal but an educational advocate. See Crawford v. Dist. of Columbia, 2012 WL 1438985, at
10
*6 (D.D.C. Apr. 26, 2012) (denying costs relating to the service of Ms. Millis). Here, Millis
actually testified at a hearing (presumably as an expert). Pl.’s Mot. Ex. 1d at 3. And it appears
Ms. Millis billed for this time as a paralegal.3 See Pl’s Mot. Summ. J., Ex. 2 (corrected), at 57,
ECF No. 28. If Ms. Millis is serving as an expert in this capacity, while still being billed as a
paralegal, the Court presumes that she served as an expert consultant throughout. For these
reasons, the Court bars Plaintiffs from recovering any fees for Ms. Millis.
b. The Court Will Award Fees Incurred by Mr. Ostem and Mr. Nahass, Before Licensed in the
District, at a Paralegal/ Law Clerk Rate.
The plaintiffs also seek fees for Nicolas Ostem and Zachary Nahass for time periods
when they were not yet admitted to the District of Columbia bar. See Def.’s Opp’n 21. The
plaintiffs explain that both Mr. Ostem and Mr. Nahass were billed as paralegals before entering
the D.C. bar on December 7, 2009 and February 2, 2008, respectively. Pl.’s Reply, 11.
Courts have taken different approaches when determining an award of attorney’s fees
incurred by lawyers who are not licensed to practice in the District of Columbia: some courts
award fees to unlicensed attorneys at a rate that is normally earned by paralegals, Dickens v.
Friendship-Edison P.C.S., 724 F. Supp. 2d 113, 113 (D.D.C. 2010), whereas other courts deny
fees altogether, Agapito v. Dist. of Columbia, 477 F. Supp. 2d 103, 115-16 (D.D.C. 2007). The
Agapito court denied attorney’s fees for the work of three unlicensed attorneys after determining
that these attorneys engaged in the unauthorized practice of law in violation of D.C. Ct. App. R.
49. See Agapito, 477 F. Supp. 2d at 111 (reasoning that Rule 49(c)(5) does not permit an
attorney not licensed in the District to practice law in administrative proceedings before DCPS).
3
The Court notes that Ms. Millis only billed for the time of her testimony versus the time
for the full hearing billed by the attorney. See Pl.’s Mot. Summ. J. Ex. 2 (corrected), at 57, ECF
No. 28.
11
These unlicensed attorneys had represented plaintiffs in administrative due process hearings
before DCPS. See Agapito, 477 F. Supp. 2d at 106.
Unlike the attorneys in Agapito, Mr. Ostem and Mr. Nahass did not engage in the
unauthorized practice of law in violation of Rule 49. There is no evidence to suggest that Mr.
Ostem or Mr. Nahass ever represented any student in an administrative due process hearing
before DCPS prior to becoming licensed in the District. Pl.’s Mot. Summ. J. Ex. 2, corrected
Aug.5, 2013, ECF No. 28. Rather Mr. Ostem and Mr. Nahass engaged in supervised work
similar to that of a paralegal or law clerk during the time periods in which they were not licensed
in the District. For example, Mr. Ostem and Mr. Nahass billed at the paralegal/law clerk rate for
work such as calling schools and clients, reviewing student records, drafting and emailing
documents, and scheduling meetings. Pl.’s Mot. Summ. J. Ex. 2 (corrected), ECF No. 28. The
record indicates that while unlicensed, Mr. Ostem or Mr. Nahass only attended due process
hearings when accompanied by Mr. Tyrka, and it was Mr. Tyrka who represented the students at
these hearings. Mr. Tyrka billed his time accordingly. Pl.’s Mot. Summ. J. Ex. 2 (corrected),
ECF No. 28. No time was billed for Mr. Ostem’s or Mr. Nahass’s participation or attendance in
these hearings, as indicated by “NC” (no charge) on the invoices. Pl.’s Mot. Summ. J. Ex. 2
(corrected), ECF No. 28. Because Mr. Ostem and Mr. Nahass did not engage in the
unauthorized practice of law in violation of D.C. Ct. App. R. 49, the court will award fees for
work performed by Mr. Ostem and Mr. Nahass, while unlicensed in the District, at a reasonable
paralegal/ law clerk hourly rate. See infra Part III (B)(2).
c. The Court Will Award Fees for Paralegals.
The defendant argues that the plaintiff has failed to provide enough information about the
qualifications of the individuals that Plaintiff has designated and billed as “paralegals”: Camille
12
McKenzie, Yanet Scott, and Olivia West. Def.’s Opp’n Mot. 18, ECF No. 22. The American
Bar Association (“ABA”) defines a paralegal or legal assistant as a person “qualified by
education, training or work experience who is employed or retained by a lawyer, law office,
corporation, governmental agency or other entity and who performs specifically delegated
substantive legal work for which a lawyer is responsible.” Pl.’s Reply, 9; Pl.’s Reply, Ex. 1.
Courts recognize that paralegals “are capable of carrying out many tasks, under the supervision
of an attorney, that might otherwise be performed by a lawyer.” Missouri v. Jenkins by Agyei,
491 U.S. 274, 288 n.10 (1989); see also Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 580
(2008) (including the work of paralegals in an attorney’s fee award because the paralegals’ work
contributed to the attorney work product). Applying the ABA definition, the plaintiffs argue that
they have established the training and experience of all the firm personnel, including paralegals.
Parties requesting attorneys’ fees carry the burden of justifying requested rates for law
clerks or paralegals by providing sufficient information detailing the non-attorneys’ experience
and education. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004)
(explaining that the plaintiffs’ requested rates will be reduced because they have “not even taken
the basic step of submitting an affidavit detailing the non-attorneys’ experience and education”).
Although the plaintiffs have not provided specific details regarding the educational backgrounds
of Camille McKenzie, Yanet Scott, and Olivia West, they submitted a verified statement
indicating that each paralegal worked under the supervision of attorneys after receiving training
for a period of approximately three months. Pl.’s Reply Ex. 2, ECF No. 25. The verified
statement also indicates the year in which each paralegal began working for Tyrka & Associates.
Pl.’s Reply Ex. 2, ECF No. 25. The Court finds this to be sufficient information of the
13
paralegals’ supervision and training, and finds that the plaintiffs have met their burden in
establishing the paralegals’ qualifications. See Pl.’s Reply, Ex. 2.
Moreover, while clerical or secretarial tasks should not be billed at a paralegal rate, the
work performed by Camille McKenzie, Yanet Scott, and Olivia West is consistent with the type
of work appropriate for a paralegal. See Missouri, 491 U.S. at 288 n.10 (listing tasks paralegals
may perform, including factual investigation; assistance with depositions, interrogatories, and
document production; compilation of statistical and financial data; checking legal citations; and
drafting correspondence); see also Bachman v. Pertschuk, 1979 WL 162 at *13 (D.D.C. Mar. 14,
1979) (stating that some attorney performed tasks, such as indexing and numbering documents,
would have been more appropriately performed by trained paralegals). Here the paralegals were
billed for work such as updating the compliance matrix, scheduling meetings, and drafting letters
and emails. Pl.’s Mot. Summ. J., Ex. 2 (corrected), ECF No. 28. Accordingly, the plaintiffs
correctly billed the work of Camille McKenzie, Yanet Scott, and Olivia West as paralegals and
this Court will award fees for their work.4
d. Travel Costs Are Already Appropriately Reduced.
The defendant correctly states that the plaintiffs’ travel costs should be reduced by fifty
percent of the hourly rate deemed appropriate by this Court. See Bucher v. Dist. of Columbia,
777 F. Supp. 2d 69, 77 (D.D.C. 2011) (explaining that in this Circuit, travel time is compensated
at half of the attorney’s rate). However, the plaintiffs respond that they have already accounted
for this reduction. See Pl.’s Reply, 12. Indeed, the time itemizations submitted by the plaintiffs
4
If a plaintiff’s attorney is not compensated for the tasks performed by a paralegal, the
attorney may choose to perform these tasks himself/herself, and seek compensation at a lawyer’s
rate, rather than at a paralegal’s rate. Such incentives would work towards increasing, rather than
decreasing, the overall amounts of fees sought.
14
do reduce attorney travel time by fifty percent. See Pl.’s Mot. Summ. J. Ex. 2 (corrected), ECF
No. 28.
e. The Court Will Reduce Faxing Costs.
The defendant asserts that faxing costs should be reduced from $1.00 per page to $0.15
per page. See Def.’s Opp’n, 22. Plaintiffs counter that the faxing charges are reasonable because
they incorporate the labor of the activity. See Pl.’s Reply, 12.
An attorney “is entitled to all expenses associated with the litigation that [she] would
normally expect to pass on to fee paying clients,” so long as the costs are reasonable and
reasonably incurred. See Holbrook v. Dist. of Columbia, 305 F. Supp. 2d 41, 46 (D.D.C. 2004)
(quoting McKenzie v. Kennickell, 645 F. Supp. 437, 452 (D.D.C. 1986). Costs for faxing are
customarily included in prevailing party fee awards in IDEA litigation, see McClam v. Dist. of
Columbia, 808 F. Supp. 2d 184, 190-91 (D.D.C. 2011), but costs have often been reimbursed at
the reduced rate of $0.15 per page. See Salazar v. Dist. of Columbia, 2014 WL 342084 at *14-15
(D.D.C. Jan. 30, 2014) (reducing plaintiffs’ fax rates from $0.50 per page to $0.15 per page);
Johnson v. Dist. of Columbia, 805 F. Supp. 2d 74, 81-82 (D.D.C. 2012) (concluding that the
$0.15 rate will suffice for both faxes and photocopies); see also McClam, 808 F. Supp. 2d at 191
(describing recovery for copying and faxing at $0.25 per page as excessive). But see Huntley v.
Dist. of Columbia, 860 F. Supp. 2d 53, 61 (D.D.C. 2012) (awarding $1.00 per page for faxing
expenses where the costs were not contested by the defendant).
Here, the plaintiffs seek a rate for faxing at more than six times the recognized
reasonable rate of $0.15 per page. See Pl.’s Reply, 12 (arguing that their faxing costs have been
standard for years). Beyond suggesting that their rate of $1.00 per page incorporates the labor of
the activity, the plaintiffs provide no other explanation as to why their rates exceed the $0.15 per
15
page ratio previously adopted, nor do they offer any justification for the $0.45 per page labor
cost. See Johnson, 805 F. Supp. 2d at 81-82 (D.D.C. 2012) (finding $0.15 per page reasonable in
the absence of any indication that the party requesting the fees paid a higher amount to an
outside vendor); see also Salazar, 2014 WL 342084 at *14-15 (analyzing faxing expenses
against the ratio recognized as reasonable by the Johnson court). Accordingly, this Court
reduces plaintiffs’ faxing rates to $0.15 per page.
B. The Plaintiffs’ Requested Hourly Billing Rates
1. Enhanced Laffey Rates Are Not Appropriate.
The plaintiffs urge the court to adopt the enhanced Laffey Matrix, Pl.’s Mot. Summ. J. 8,
ECF No. 21, which was updated to “reflect…increases in the National Legal Services prepared
by the United States Bureau of Labor Statistics.” See Rooths v. Dist. of Columbia, 802 F. Supp.
2d 56, 61 (D.D.C. 2011). Plaintiffs cite to Salazar v. Dist. of Columbia, a non-IDEA case in
which a court in this District adopted the enhanced Laffey rates. 123 F.Supp.2d 8, 14–15 (D.D.C.
2000). Yet plaintiffs cite no case in which a judge of this Court has awarded the enhanced Laffey
rate to reimburse a plaintiff in an IDEA matter. The court in Rooths declined to award the
enhanced Laffey rates for two reasons: 1) the matrix was generated using national statistics rather
than local statistics, and therefore, it does not represent increases in and around the District of
Columbia, but instead increases in the national Legal Services prepared by the United States
Bureau of Labor Statistics; and 2) the matrix did not reasonably approximate the rates associated
with IDEA litigation in the District of Columbia. See Rooths, 802 F. Supp. 2d at 62 (recognizing
that “some sectors of the legal services industry have experienced rapid fee inflation in recent
years”).
16
Plaintiff argues that the Plaintiff’s counsel rates, that is the rates the firm has customarily
charged to and received from its clients, is the best method to determine the prevailing market
rate. Pl’s Mot. Summ. J., 8-9. Plaintiff provides evidence of this first in the form of prior
settlements in which the District agreed to pay an amount of fees based on an enhanced Laffey
rate. see Pl.’s Mot. Summ. J. Ex. 3, ECF No. 21. However, the Court does not find this evidence
sufficient to show prevailing market rates in the District of Columbia. Rooths, 802 F. Supp. 2d at
62 (reasoning that “the amount of fees that the District agrees to pay an attorney as part of a bulk
settlement is not determined by market forces”). Mr. Douglas Tyrka’s affidavit does not provide
sufficient information to determine whether the firm’s settlements with DCPS were based on
prevailing market rates. Pl.’s Mot. Summ. J. Ex. 3, ECF No. 21.
Plaintiff also provides evidence of the alleged market rate by relying on the rate charged
to some of the firm’s clients. Pl.’s Mot. Summ. J. Ex. 3, ECF No. 21 According to Mr. Tyrka’s
affidavit, “several clients” have paid the firm at the enhanced Laffey rate, regardless of whether
reimbursement is ever obtained. Id. However, Mr. Tyrka’s affidavit does not provide sufficient
information for the Court to determine whether these rates represent the market rate for routine
IDEA litigation. For example, Mr. Tyrka’s affidavit does not specify, out of the hundreds of
IDEA cases that the firm handles, how many of the firm’s clients pay the enhanced rate. As a
result, the Court cannot determine whether the enhanced rate is the firm’s standard rate for
paying clients, or whether it is an outlier. In addition, Mr. Tyrka’s affidavit does not disclose the
sophistication of the clients agreeing to pay the enhanced rate. After all, an unsophisticated party
may be unaware of the market rate, or may lack objectivity, as the case concerns his/her child’s
education. Accordingly, the Court finds that there is insufficient information to conclude that the
enhanced Laffey rates are the market rate and thus will not award enhanced Laffey fees.
17
2. The Court Will Not Award Laffey Rates Because the Plaintiffs Have Not Established That
Their Case was Particularly Complex.
The defendant next contends that the plaintiffs are entitled only to some rate below the
Laffey rate, as the matters at hand are simple local administrative matters and not the type of
complex federal litigation for which Laffey rates were adopted. Def.’s Opp’n, 13.
The Laffey Matrix serves as a tool to help gauge the overall reasonableness of the fees
sought; therefore, it is within the court’s discretion to look at the complexity of the case to
determine whether rates are reasonable. See Flores, 857 F. Supp. 2d 15, 21 (D.D.C. 2012)
(explaining that federal courts do not automatically have to award Laffey rates). A fee
applicant’s burden in establishing a reasonable hourly rate entails a showing of at least three
elements: “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and
the prevailing market rates in the relevant community.” Covington, 57 F.3d at 1107.
The plaintiffs have submitted an affidavit sufficiently describing their attorneys’
experience, skill, and reputation. See Pl.’s Mot. Summ. J., Ex. 3 (asserting that the firm is
specialized in the field of special education and that it has won the most substantial relief
obtained in IDEA cases for more than 100 children). However, the plaintiffs have not offered
evidence sufficient to link Laffey to the prevailing market rate. Therefore, the plaintiffs have
failed to satisfy their burden.
Indeed, while the Laffey Matrix represents prevailing market rates in the local
community, the rates are the presumed maximum rates appropriate for “complex federal
litigation.” Covington, 57 F.3d at 1103; see also DL v. Dist. of Columbia, 256 F.R.D. 239, 243
(D.D.C. 2009) (recognizing that the Laffey Matrix represents the local community’s market rates
for complex litigation). Courts in this district do not generally recognize IDEA litigation as a
type of complex federal litigation. See, e.g., Flores, 857 F. Supp. 2d at 21 (finding that IDEA
18
litigation is not generally complex); McClam, 808 F. Supp. 2d at 189 (agreeing with the
defendant’s objection to the application of Laffey rates by reasoning that the IDEA litigation was
not complex); Rooths, 802 F. Supp. 2d at 63 (noting that most IDEA litigation is not
complicated); Wilson v. Dist. of Columbia, 777 F. Supp. 2d 123, 127 (D.D.C. 2011) (explaining
that the plaintiff failed to recognize that the Laffey Matrix is not generally applicable to IDEA
cases); Agapito v. Dist. of Columbia, 525 F. Supp. 2d 150, 150 (D.D.C. 2007) (declining to apply
Laffey rates to relatively simple and straightforward IDEA cases). But see, e.g., Jackson v. Dist.
of Columbia, 696 F. Supp. 2d 97, 102 (D.D.C. 2010) (concluding that no legal error was
committed in relying on the Laffey Matrix to determine prevailing market rates in an IDEA
case); Cox v. Dist. of Columbia, 754 F. Supp. 2d 66, 75-76 (D.D.C. 2010) (finding that the
administrative IDEA proceeding was complex because it involved the admission of sixty-five
exhibits, the testimony of four witnesses, and written closing statements, and took over two years
to resolve).
The plaintiffs argue that the attorneys’ knowledge of IDEA law, experience, and
understanding of the procedural aspects of the hearings helped obtain favorable decisions for the
students. See Pl.’s Reply 5-7, ECF No. 24. The plaintiffs have not, however, put forward any
evidence to suggest that their claim was particularly complex, thus entitling them to Laffey rates.
See Crawford, 2012 WL 1438985, at *3 ([t]his case involves the IDEA, 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.”); cf. Covington, 57 F. 3d
at 1106 (noting that [p]laintiffs’ counsel handled very well this complicated federal case, which
involved the constitutional claims of ten plaintiffs against sixteen defendants, lengthy discovery,
many motions and a jury trial”). An independent review of the record indicates that the
19
plaintiffs’ cases revolved around a number of routine administrative hearings, many of which
involved similar claims and identifiable requests for relief. See Pl.’s Mot. Summ. J., Exs. 1b-1d.
The Court notes the following examples as evidence of the lack of complexity in many of
these IDEA cases: 1) in the case involving R.B., the DCPS attorney did not show up for the
hearing, and a default judgment was entered for the Plaintiff as no DC witnesses testified, Pl.’s
Mot. Summ. J., Ex. 1c at 20-21; 2) in the case involving R.S., no witnesses were presented at the
hearing and the single matter on which Plaintiff succeeded was conceded by DCPS, Pl.’s Mot.
Summ. J., Ex. 1d at 27; 3) in the case involving T.F., there were a limited number of witnesses if
any and there were no contested legal issues in the matter, Pl.’s Mot. Summ. J., Ex. 1d 30, 38; 4)
in the case involving T.T., the parties reached a settlement agreement and no hearing was
conducted, Pl.’s Mot. Summ. J., Ex. 1d at 42-43; 4) in the case involving A.S.(1), DCPS failed to
file a response and Plaintiff was granted a Motion for Default Judgment, Pl.’s Mot. Summ. J.,
Ex. 1a at 2; 5) in the case involving A.S.(2), DCPS failed to produce any witnesses and thus,
Plaintiffs merely had to carry their burden of proof on the issues, Pl.’s Mot. Summ. J., Ex. 1a at
9; and 6) in the case involving D.S., DCPS voluntarily agreed to grant the relief Plaintiff sought,
and the remaining issues were not ripe for review, Pl.’s Mot. Summ. J., Ex. 1a at 28.
Accordingly, based on this record, the Court will not grant the maximum Laffey rates reserved
for complex federal litigation.5
5
The Court additionally notes that the cases for which fees are sought involved very few
contested legal issues. Instead, almost all of them simply required the application of case-specific
facts to a well-established legal framework. The application of facts to a well-established legal
framework is not dissimilar to the work typically done by court-appointed criminal defense
attorneys, who are compensated at an hourly rate of $126.00. See CJA Appointment Guidelines,
Vol.7, Part A, Ch. 2, §230.16, available at:
http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/CJAGuidelinesForms/vol7Part
A/vol7PartAChapter2.aspx#230_23_10. Criminal defendants are able to secure competent
counsel at that rate— which is the governing criterion to determine the applicable market rate.
20
As the maximum rates for complex federal litigation are not appropriate, the court is
faced with determining the appropriate rates for this IDEA litigation. The defendant argues that
three-quarters of the Laffey rate is the maximum amount that would be appropriate in this case.
See Def.’s Opp’n, 8. The plaintiffs argue that if this Court accepts the defendant’s request to
reduce hourly rates by three-quarters that the reduction be applied to the enhanced Laffey rates.
Pl.’s Reply, 9. As already concluded, this Court will not use the enhanced Laffey rate. See supra
Part III.B.1. Instead, it adopts Judge Friedman’s determination of hourly rates in Rooths, a non-
complex IDEA case, which awarded rates equal to three-quarters of the Laffey rates. See Rooths,
802 F. Supp. 2d at 63 (awarding three-quarters of the Laffey rates for Mr. Tyrka, Mr. Ostrem,
and Mr. Nahass); see also Flores v. United States, 857 F. Supp. 2d 15, 21 (D.D.C. 2012)
(applying the Laffey Matrix as a starting point). The Court will first adjust the rates based on the
years worked and the experience of each attorney and paralegal according to the Laffey Matrix,
before further reducing these rates by one-quarter due to the non-complex nature of the matters.6
See Lewis v. Coughlin, 801 F.2d 570, 573, 576 (2d. Cir. 1986) (finding that “an attorney's fee
award should be only as large as necessary to attract competent counsel” and collecting cases in
other sorts of Federal litigation in which fees awarded “are adequate to attract competent
counsel, but which do not provide windfalls to attorneys”). Although court-appointed criminal
defense counsel are guaranteed payment whether or not their client prevails, their hourly rate
stands in stark contrast to the enhanced Laffey rates sought here.
6
Using the Laffey matrix as a starting point for determination of a reasonable hourly rate, this
Court determines the hourly rates as follows: Douglas Tyrka [attorney with 11 to 15 years of
experience during the relevant time period]:$410 (2008-09), $410 (2009-10), $420 (2010-11),
$435 (2011-12), $445 (2012-13) instead of $625; Zachary Nahass [attorney with 1 to 6 years of
experience during the relevant time period]: $225 (2008-09), $225 (2009-10), $230 (2010-11),
$285 (2011-12), $290 (2012-13), instead of $312; Nicolas Ostem [attorney with 1 to 5 years of
experience during the relevant time period]: $225 (2009-10), $230 (2010-11), $240 (2011-12),
$290 (2012-13), instead of $312; Patrick Meehan, Camille McKenzie, Yanet Scott, and Olivia
West [paralegal/law clerk]: $130 (2008-09), $130 (2009-10), $135 (2010-11), $140 (2011-12),
$145 (2012-13), instead of $170.
21
Accordingly, for hours billed between 2008 and 2013, the hourly rates are as follows: Mr.
Tyrka: $307.50 (2008-09), $307.50 (2009-10), $315.00 (2010-11), $326.25 (2011-12), $333.75
(2012-13); Mr. Nahass: $168.75 (2008-09), $168.75 (2009-10), $172.50 (2010-11), $213.75
(2011-12), $217.50 (2012-13); Mr. Ostem: $168.75 (2009-10), $172.50 (2010-11), $180.00
(2011-12), $217.50 (2012-13); paralegals/law clerks: $97.50 (2008-09), $97.50 (2009-10),
$101.25 (2010-11), $105.00 (2011-12), $108.75 (2012-13).
3. The Plaintiffs’ Fee Award is Subject to a Fee Cap.
The defendant correctly argues that its ability to pay any award for those matters
initiated prior to March 11, 2009 is capped by Section 814 of the Omnibus Appropriations Act,
2009, Pub. L. No. 111-8, 123 Stat. 524. Although defendant’s ability to pay the award may be
capped, the court may nonetheless issue an opinion detailing the award in full. See Calloway v.
Dist. of Columbia, 216 F.3d 1, 3 (D.C. Cir. 2000) (recognizing the “potential incongruity of the
courts’ awarding fees that [federal law] prohibits the District from paying,” but concluding that
“reconciling inharmonious statutory directives is Congress’ responsibility, not the courts’”).
4. The Plaintiffs Should Be Awarded Total Fees and Costs of $159,133.74
The total fees and costs were calculated by first adopting the Laffey rates. These rates
were then further reduced by one-quarter because the plaintiffs failed to establish the complexity
of the involved IDEA litigation. After calculating this rate, fees were reduced by one-half for
work performed on both N.M.’s case and S.S.’s case to account for limited success. Faxing costs
were reduced from $1.00 per page to $0.15 per page. Mr. Ostem and Mr. Nahass were billed at
the rate equal to three-quarters of the Laffey rates for paralegals/ law clerks for work performed
while unlicensed in the District. Costs incurred by work completed by Sharon Millis, an
educational advocate, were not awarded.
22
In light of the conclusions reached in today’s memorandum opinion, this Court will
award $159,133.74 in attorneys’ fees.
IV. CONCLUSION
For the foregoing reasons, the Plaintiffs’ Motion for Summary Judgment shall be granted
in part and denied in part, and Defendant’s Cross-Motion for Summary Judgment shall be
granted in part and denied in part.
Dated: March 6, 2014 RUDOLPH CONTRERAS
United States District Judge
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