UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ THOMAS COX, et al., : : Plaintiffs, : : v. : Civil Action No. 09-1720 (GK) : DISTRICT OF COLUMBIA, : : Defendant. : ______________________________:
MEMORANDUM OPINION
Plaintiffs, minor children and their parents and guardians,1
seek to collect attorneys’ fees and other costs incurred in
bringing successful administrative actions under the Individuals
With Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq.
Defendant is the Government of the District of Columbia. 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.
1 Plaintiffs are Brenda Smith and Xane Smith, as parents/guardians of the minor child, B.S.; B.S., individually; Lena Johnson, as parent/guardian of the minor child, E.J.; and E.J., individually. Thomas Cox, Sr. and Dolores Lewis, as parents/guardians of the minor child, D.C.; D.C., individually; Karen Turley and Michael Turley, as parents/guardians of the minor child, R.T.; and R.T., individually, were all voluntarily dismissed on November 24, 2009 [Dkt. No. 5]. This is a case about attorneys’ fees. What undergirds the
request for attorneys’ fees, and what caused the extensive legal
work necessary to properly and effectively represent Plaintiffs’
clients are two deeply distressing stories about the failure of the
District of Columbia to provide absolutely necessary special
education services to two children who desperately needed them.
The Smith case presents the most egregious situation. On
September 7, 2007, a thirteen-year-old girl was reported to be
verbally and physically aggressive in the classroom, argumentative,
hostile, and attention-seeking with a host of academic problems. A
plan was formulated to curb her behavior, but she was suspended for
disruptive behavior. Her parents requested, in writing, a full
evaluation for special education. The necessary comprehensive
psychological report was not completed until a year later and the
necessary Individual Education Program was not completed until
almost thirteen months later, despite the fact that the child’s
classroom behavior continued to deteriorate during the entire
school year. Finally, some fourteen-and-a-half months after the
initial incident, when the child had a particularly violent
classroom episode, she was admitted to the Psychiatric Institute
and was not discharged until two weeks later. She returned to the
same classroom setting--and was again violent, cursed her teachers,
and refused to follow any instructions or directions. Some sixteen
and a half months after the initial incident, she was suspended
-2- from school for pushing a teacher, and was ultimately brought to
court for similar conduct when it occurred again. Finally, some
eighteen months after the initial incident, the child was
determined to be eligible for special education services and
received a disability certificate of Emotionally Disturbed.
It was only after the child’s parents filed a Due Process
Complaint, and received a full evidentiary hearing, that, thanks to
the Hearing Officer, DCPS was ordered to place the child (after she
lost two years of school2) at the High Road Middle School where she
would receive the services she needed and to which she was
entitled.3
The Johnson case, while less extreme, is equally
heartbreaking. In that case, by December 4, 2008, it was recognized
that this fourteen-year-old boy needed “an alternative placement”
that was more restrictive and with students functioning at a level
of mild mental retardation, but that he would have to be re-
evaluated. That re-evaluation was done in a timely fashion and the
original recommendation was re-affirmed. Thereafter, no progress
was made in changing the boy’s placement, his Individual Education
Program was not revised, and various necessary tests and meetings
related to finding an appropriate placement did not take place.
2 The Hearing Officer ruled on August 25, 2009. 3 The Hearing Officer’s opinion in this case was impressively comprehensive, detailed, and thoughtful.
-3- Four-and-a-half months after the initial determination that an
alternative placement was needed, the child was suspended from
school for disruptive behavior, which the school system determined
was a manifestation of his disability.
Again, it was only after the child’s parent filed a Due
Process Complaint, and received a full evidentiary hearing, that,
thanks to the Hearing Officer (not the Hearing Officer in the
former case), DCPS was ordered to place the child, after he lost
almost a full school year,4 at the High Road Middle School where he
would receive the services he needed and to which he was entitled.5
Both of these cases highlight not just the maddening
inadequacies of the school system, but in relation to these
Complaints, the enormously vital role that lawyers play in ensuring
that their young clients obtain the educational enhancements that
Congress has granted them so that they may go on to lead productive
lives.
4 The Hearing Officer ruled on June 19, 2009. 5 Once again, the Hearing Officer wrote a careful and detailed Opinion.
-4- I. BACKGROUND
A. Factual History6
1. Plaintiffs Brenda Smith, Xane Smith, and B.S.
On June 22, 2009, Plaintiffs Brenda Smith and Xane Smith filed
a Due Process Complaint on behalf of B.S., alleging that the
District of Columbia Public Schools (“DCPS”) had denied B.S. a free
appropriate public education (“FAPE”) under the IDEA. At that time,
B.S. was a thirteen-year-old girl attending Macfarland Middle
School. B.S. Decision 2.
The events giving rise to the Smiths’ Due Process Complaint
began on September 1, 2007. On that day, a Student Support Team
(“SST”) learned from B.S.’s teacher that B.S.’s classroom behavior
was, among other things, verbally and physically disruptive,
verbally aggressive, bullying, easily distracted, argumentative,
hostile when criticized, attention-seeking, and easily frustrated.
B.S.’s classroom behavior was accompanied by a host of academic
issues, including declining grades, disorganization, incomplete
assignments, failure to follow directions, poor study skills, and
inability to work well with others. On September 14, B.S. was also
described as having a short attention span, showing difficulty with
6 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 Decisions for B.S. (“B.S. Decision”) [Dkt. No. 12-16] and E.J. (“E.J. Decision”) [Dkt. No. 12-8].
-5- sustained reading exceeding three minutes, and constantly moving
about the classroom. Id. at 3-4.
On October 4, 2007, the SST formulated a plan for B.S., which
included weekly counseling, support and materials as needed for
B.S.’s course work, and daily monitoring forms to be completed by
B.S.’s teacher. The SST plan also called for conducting a
functional behavioral assessment (“FBA”), to produce a Behavior
Intervention Plan (“BIP”). Nevertheless, B.S.’s problems persisted
and she was suspended for five days. Id. at 4.
On November 19, 2007, Petitioners signed a written request
that B.S. be evaluated for special education. B.S. was then
referred to a Multidisciplinary Team (“MDT”). By November 26, 2007,
the psychologist at Macfarland had the necessary release of
information form from Brenda and Xane Smith and an SST Final
Meeting Report requesting evaluation and referral to the MDT. On
that same date, the psychologist relayed all relevant data to a
DCPS special education specialist (“SEC”). Id.
By January 24, 2008, B.S. had failed four of the core classes
for that quarter. On February 6, the psychologist at MacFarland
sent a memorandum to the SEC, reminding him or her that B.S.
continued to have problems at school, that the SST suspected
disability, and that relevant data had been submitted to the SEC
back in November 2007. The psychologist indicated that a meeting
with B.S.’s parents had been scheduled for February 11, 2008, and
-6- suggested that the SEC promptly schedule his or her own meeting
with the Smiths to move forward with the eligibility process and to
avoid litigation. Id. at 4-5.
On February 28, 2008, the MDT met to discuss B.S. and develop
a Student Evaluation Plan, including psychological testing.
Petitioners were present at this meeting. They informed the MDT
that B.S. had been on medication for Attention Deficit
Hyperactivity Disorder (“ADHD”) for two years and insisted that
B.S. be evaluated by the special education department. For the
second time, Petitioners signed consent forms for this purpose. Id.
at 5.
On April 3, 2008, the MDT met once again as a result of B.S.’s
disruptive behavior. As it had done more than a month earlier, the
MDT again developed a Student Evaluation Plan calling for
psychological testing. This time, the MDT established a due date of
May 30, 2008 for the psychological assessments. Id.
On August 13, 2008, more than two months after the MTD’s
deadline, the Department of Mental Health sent a letter to the SEC
indicating that the Department of Mental Health Community Services
Agency had diagnosed B.S. with Oppositional Defiant Disorder
(“ODD”) and ADHD. The letter also stated that B.S. had begun
medication management in March 2008 and was under the care of a
child psychiatrist.
-7- On September 8, 2008, more than three months after the MTD’s
deadline, DCPS finally completed the comprehensive psychological
report for B.S. Among other things, the report noted that B.S. was
having social and emotional concerns relating to ADHD symptoms,
that B.S. qualified for special education services based on poor
performance in math testing, and that B.S. had the cognitive
ability to perform at grade level, given accommodations to address
restlessness and attention deficits. At that time, final
recommendations were pending the convening of an MDT meeting and
receipt of any outside reports from the parents. Finally, further
testing was completed on September 24, 2008––nearly thirteen months
after the initial incident of September 1, 2007. Id. at 5-6.
An initial individualized educational program (“IEP”), dated
September 25, 2008, classified B.S. with a Specific Learning
Disability (“SLD”) and called for five hours per day of specialized
instruction in the general education setting as well as thirty
minutes per day of behavior support services. This IEP required
that special education services be provided in a combination
setting of general education and resources classroom. At the
meeting for this IEP, on September 25, 2008, the MDT determined
that ADHD was not impacting B.S.’s ability to learn. The MDT
referred B.S. to the general education curriculum to develop a
behavior intervention plan. Id. at 6-7.
-8- On November 24, 2008, B.S. entered a classroom that was not
hers and became angry when the teacher in that classroom asked her
to leave. B.S. destroyed property, ruined work books, and threw a
pencil sharpener, timer, and numerous books around the classroom.
On the same day, B.S. was admitted to the Psychiatric Institute of
Washington (“PIW”). She was discharged two weeks later on December
8, 2008, with a diagnosis of ODD, Mood Disorder Not Otherwise
Specified (“NOS”), and ADHD, and given a prescription for
medication. Id. at 7.
Upon return to school, on December 15, 2008, B.S.’s behavior
again deteriorated. She exhibited frequent hitting and kicking,
running away from the school, cursing, refusal to comply with
authority, and disrespect toward teachers. The MDT convened again
on December 18, 2008 to discuss B.S. The MDT determined that she
was a danger to herself and others and recommended that she be
considered for a change of school placement, once evaluations were
completed. Not surprisingly, B.S. continued to have frequent,
significant violent and disruptive outbursts throughout January
2009.7 Id. at 7-8.
7 One example of the type of conduct B.S. engaged in while the MDT continued to review her evaluations was described as follows by the Hearing Officer: “On 01/21/09, after another student read a poem about the teacher that [B.S.] had written, [B.S.] tore up the poem and offered the paper pieces to the teacher, [B.S.] ate food in class while waving the food bag in the teacher’s face, [B.S.] took out a make-up kit in class and refused to put it away or give it to the teacher, [B.S.] continuously unlocked a door that the (continued...)
-9- On January 21, 2009, DCPS developed a BIP intended to improve
B.S.’s lack of self-control and decrease her aggression. The BIP
called for providing verbal praise for appropriate behavior and
giving B.S. “the opportunity to demonstrate behavior.” The BIP
provided for additional computer time and food rewards as
reinforcement. Inappropriate behavior would result in detention.
Id. at 8.
The next day, January 22, 2009, B.S. was suspended for pushing
a teacher. That day, the MDT met to review assessments from PIW. At
that meeting, the school nurse informed the team that B.S. “would
not comply with taking medication at school.” The MDT intended to
send the documents from PIW and DCPS’s psychological evaluation
“downtown” for determination as to whether B.S. met the criteria
for Emotional Disturbance (“ED”). B.S.’s violent and disruptive
conduct persisted through April 8, 2009, when she pushed a teacher
twice, resulting in a court appearance.8 Id. at 8-9.
On March 11, 2009, B.S. was determined eligible for special
education services with a primary disability classification of
Emotionally Disturbed (“E.D.”) (as opposed to the prior
7 (...continued) teacher had locked, and [B.S.]’s behaviors prevented the teacher from presenting the lesson to the class.” B.S. Decision 8. 8 The record gives no detail about the “court appearance.” Based on this Court’s long experience on the trial bench at Superior Court, it would appear that B.S. was brought in on a Juvenile Delinquency charge, although we know nothing about its disposition.
-10- classification of Specific Learning Disability). As a result, B.S.
was given a new IEP prescribing twenty-five and a half hours per
week of specialized instruction outside of general education and
two hours per day of behavioral support services in the general
education setting. This IEP also provided for a dedicated aide and
Extended School Year services. On the same day, the MDT determined
that B.S. needed a more restrictive and intensive program for the
emotionally disturbed. Between March 11, 2009 and the end of the
school year, B.S.’s parents did not attend any MDT/IEP meetings
where school placement for B.S. was discussed.9 Plaintiffs were
unaware of any new school placement for the following year. Id. at
9.
Therefore, on June 22, 2009––twenty-two months after the
initial incident of September 1, 2007––Plaintiffs filed a Due
Process Complaint alleging that DCPS had denied B.S. a FAPE. On
August 20, 2009, after consideration of sixty-five documentary
exhibits, four witnesses, and written closing statements, a Hearing
Officer determined that:
DCPS’ failure to evaluate [B.S.] in a timely manner, failure to determine [B.S.] eligible for special education services as a student with a disability in a timely manner, failure to provide [B.S.] with an appropriate IEP and placement, failure to evaluate [B.S.] in all areas of suspected disability, and failure to
9 The record does not indicate whether any such meetings actually took place and, if so, whether B.S.’s parents knew of them.
-11- address [B.S.]’s chronic and severe behavior problems with a FBA and effective BIP were all egregious violations of IDEIA, and as a result [B.S.] suffered much educational harm. As of the date of the due process hearing, DCPS still had not convened an IEP team meeting to discuss and determine an appropriate placement for [B.S.] for the upcoming 2009-1010 [sic] school year. All of the evidence taken together indicated that since at least March 2008, [B.S.] has been without appropriate evaluations, IEP, education placement and services, and [B.S.] has been denied a FAPE continuously since that time.
Id. at 20. The Hearing Officer ordered DCPS to immediately place
and fund B.S.’s attendance at the High Road Middle School,
including necessary transportation, pay for an independent clinical
psychological evaluation of B.S. within ten days, conduct an FBA of
B.S. withing thirty days, and convene an MDT/IEP meeting at High
Road within fifteen days of the receipt of the independent
evaluation reports and the FBA in order to revise the IEP as
appropriate. Id. at 21.
On August 25, 2009, Plaintiffs submitted a petition for
attorneys’ fees and costs to DCPS in the amount of $26,525.28. On
November 2, 2009, Defendant made a payment to Plaintiffs in the
amount of $18,193.88, resulting in a $8,341.40 difference between
what Plaintiffs believe they are owed for attorneys’ fees and costs
relating to B.S.’s petition and what Defendant has paid. Pls.’
Statement of Facts ¶¶ 10-13. Defendant concedes that it owes
Plaintiff Brenda Smith $47 in costs. Def.’s Response to Pls.’
-12- Statement of Facts ¶ 13. Therefore, costs of $8,294.40 relating to
B.S.’s case remain in dispute.
2. Plaintiffs Lena Johnson and E.J.
On May 8, 2009, Plaintiff Lena Johnson filed a Due Process
Complaint on behalf of E.J., alleging that DCPS had denied E.J. a
FAPE under the IDEA. At that time, E.J. was a fourteen-year-old boy
and a 7th grade student at Brookland EC at Bunker Hill
(“Brookland”).
About five months before the filing of the Due Process
Complaint, on or about December 4, 2008, an MTD at E.J.’s school
met to discuss E.J.’s recent behavior and his need for an IEP. The
team concluded that E.J. needed “an alternative placement” and that
E.J. would have to be re-evaluated. E.J. Decision 3. DCPS conducted
a social history with Lena Johnson on or about December 15, 2008,
and further evaluated E.J.’s academic skills on or about February
9, 2009. At that time, DCPS did not conduct cognitive testing or
re-evaluate E.J.’s speech and language skills. Finally, on or about
February 17, 2009, a team met to further re-evaluate E.J. and
resolved that “E.J. continued to be eligible for special education
and related services as a student with Mental Retardation.” The
team reaffirmed its December 4, 2008 conclusion that E.J. required
“a more restrictive placement with students functioning at a level
of mild mental retardation with significantly delayed academics,”
which could not be provided at Brookland. Id.
-13- In the months that followed, as E.J. remained at Brookland,
Johnson repeatedly asked about a new placement for him, only to be
told by the principal and others that no other placements were
available. At the time the Due Process Claim was filed on May 8,
2009, more than five months had passed since E.J.’s December 4,
2008 evaluation, almost three months had passed since his February
17, 2009 re-evaluation, and his IEP had still not been revised to
reflect his need for a more restrictive environment or full-time
placement. Nor had a notice of proposed placement been sent to his
parent. Nor had any MDT meeting occurred to move forward with a
change of placement. Indeed, E.J. continued to attend school at
Brookland pursuant to an IEP and educational placement that DCPS
had already determined, on December 4, 2008, to be inappropriate to
his needs. Id. at 4.
E.J. missed approximately fifteen speech therapy sessions and
thirty hours of counseling during the 2008-2009 school year.
Because of this failure, the Hearing Officer found that DCPS failed
to provide the services required under E.J.’s already insufficient
IEP. On or about April 28, 2009, E.J. was suspended from Brookland
for eleven days. DCPS subsequently determined that the conduct for
which E.J. was suspended was a manifestation of his disability.
DCPS did not conduct an FBA. Id.
On June 19, 2009, after consideration of fifty documentary
exhibits, four witnesses, and detailed written closing statements
-14- requested by the Hearing Officer, that Hearing Officer concluded
that DCPS’s failure to re-evaluate E.J. in all areas of suspected
disability, to develop a suitable IEP, to provide required services
such as speech therapy and counseling, to provide an appropriate
education placement, and to conduct an FBA and implement a
behavioral intervention plan after E.J. was suspended from
Brookland denied E.J. a FAPE. Consequently, the Hearing Officer
ordered immediate placement and funding for E.J. at High Road as
well as transportation, a meeting within thirty days of placement
at High Road to revise E.J.’s IEP, funding for further independent
evaluations of E.J.’s abilities, and, within sixty days, the
functional behavioral assessment that DCPS had failed to conduct.
Id. at 5-8.
On July 16, 2009, Plaintiffs submitted a petition for
attorneys’ fees and costs to DCPS, seeking $35,032.46. This
original submission contained an erroneous entry and should have
sought $23,152.46. Pls.’ Statement of Facts ¶ 4. On September 23,
2009, Defendant paid Plaintiffs in the amount of $15,763.70,
resulting in a difference of $7,388.76 between what Plaintiffs
believe they are owed for attorneys’ fees and costs relating to
E.J.’s petition and what Defendant has paid. Pls.’ Statement of
Facts ¶¶ 3-7. Defendant concedes that it owes Plaintiff Lena
Johnson $555.80 in costs. Def.’s Response to Pls.’ Statement of
-15- Facts ¶ 7. Therefore, costs of $6,832.96 relating to E.J.’s case
remain in dispute.
B. Procedural History
On September 10, 2009, Plaintiffs filed a Complaint [Dkt. No.
1] in this Court seeking the outstanding balance from their fee
petitions. On December 1, 2009, Defendant filed its Answer [Dkt.
No. 6]. On March 16, 2010, Plaintiffs filed a Motion for Summary
Judgment [Dkt. No. 12]. On May 6, 2010, Defendant filed its
Opposition [Dkt. No. 14]. On July 6, 2010, Plaintiffs filed their
Reply [Dkt. No. 16].
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
-16- 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.” 20 U.S.C. § 1415(i)(3)(B).10 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);
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
10 Defendants concede that Plaintiffs are “prevailing parties” 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 Statement of Facts ¶¶ 2, 9.
-17- 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
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 4-11. Second, Defendant argues that specific
charges are unreasonable. Id. at 11-15. These claims will be
addressed in turn.
A. The Hourly Rates Are Reasonable
Plaintiffs seek fees at an hourly rate of $400 for counsel
Elizabeth T. Jester, Esq. and at an hourly rate of $125 for
paralegal staff. Pls.’ Mot. for Summ. J. 4. Plaintiffs rely on the
-18- 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 4-6. Defendant objects on the ground
that the DCPS’s own “Guidelines for the Payment of Attorney Fees in
IDEA Matters” (“DCPS Guidelines”), which limit rates for attorneys
to $300 per hour and for paralegals to $90 per hour, are a more
appropriate benchmark than the Laffey Matrix. Def.’s Opp’n 5-11.
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.” 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’ Due Process Complaints were not
complex and therefore related attorneys’ fees should not be
determined by the Laffey Matrix, and that the DCPS Guidelines
provide a more suitable formula. Id. at 6-7. Defendant relies
-19- entirely 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.
Judge Ricardo M. Urbina, of this District Court, recently had
occasion to consider precisely this argument, and rejected it. See
Jackson, 696 F. Supp. 2d at 102-03. As he noted, “numerous judges
in this district have applied Laffey rates in the context of fee
awards arising out of IDEA administrative proceedings.” Id. at 102
(citing 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.)). Judge
Urbina concluded that 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.”
Jackson, at 696 F. Supp. 2d at 102. This Court totally agrees with
his reasoning.
Moreover, Defendant’s claim that B.S. and E.J.’s hearings were
“uncomplicated” is absurd, as any reading of the comprehensive
decisions by the two Hearings Officers in these cases demonstrates.
-20- See Def. Opp’n 6. In B.S.’s case, it took nearly two years––which
included a suspension from school and a two-week stay in a
psychiatric hospital––and a hearing with sixty-five documentary
exhibits, four witnesses, and written closing statements to obtain
an order forcing DCPS to provide desperately needed treatment and
educational assistance. See B.S. Decision 2-3. As for E.J., it took
more than seven months and a hearing with fifty documentary
exhibits, four witnesses, and written closing statements to obtain
a ruling that would, hopefully, provide the help that E.J.’s MDT
made clear was needed. See E.J. Decision 5-8.
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, Defendant offers no reasoned defense for its own
Guidelines. The affidavit of Quinne Harris-Lindsey [Dkt. No. 14-4]
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. Nor is there any evidence that
these Guidelines went through any kind of process for the issuance
-21- 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).
It is also worth noting that in order to handle special
education cases effectively, counsel must know far more than IDEA
law in order to cope with the obstructive and delaying practices of
DCPS. Sad to say, to be effective––i.e., to get services,
education, and treatment for their young clients––it is essential
that counsel understand the bureaucratic workings of that system,
know competent and caring individuals in that system who can break
logjams and obtain necessary evaluations, reports, and materials,
and then assure provision of whatever FAPE is deemed appropriate.
To accomplish this goal takes diligence, perseverance,
persuasiveness, and negotiating and inter-personal skills––as well
as the traditional legal skills expected of any competent lawyer.
In short, application of the Laffey Matrix is appropriate
here.
1. Elizabeth Jester’s Rate Is Reasonable
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 $400 for Jester,
who has practiced law for over twenty-nine years. See Pls.’ Mot.
for Summ. J. 5. Moreover, Plaintiffs have amply demonstrated
Jester’s experience and reputation. See Covington, 57 F.3d at 1107.
-22- In addition to Jester’s lengthy experience handling children’s
rights issues and extensive experience litigating special education
cases, she teaches CLE courses on special education and has served
as an instructor for new special education attorneys on the D.C.
Superior Court CCAN panel. Jester has served on the D.C. Superior
Court Family Division panel of attorneys approved to accept Special
Education Attorney appointments since its inception and has
litigated numerous cases both as appointed and retained counsel in
D.C. Superior Court, the Federal District Court for the District of
Columbia, and the Court of Appeals for the District of Columbia.
See Jester Decl. [Dkt No. 12-1] ¶ 4-6, at 2-4. Given this
experience, $400 is a reasonable rate for Jester’s work on these
matters.
2. Mary Williams’ Rate Is Reasonable
The rate of $125 sought for Mary Williams’ work as a paralegal
is below the rate of $130 specified in the Laffey Matrix. For the
reasons cited above, $125 is a reasonable rate for Williams’ work
as a paralegal.
B. Plaintiffs’ Charges Are Reasonable
Defendant makes three challenges to the reasonableness of
specific charges. In particular, 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, and (3) certain of
-23- Plaintiffs’ entries are too vague to merit compensation. See Def.’s
Opp’n 11-15. Each will be considered individually.
1. Supposedly “Clerical” Activities Are Reasonably Charged at Attorney Rates
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 12.
Defendants rely 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. Defendants also argue that the activities reimbursed for in
Bailey were less “elementary” than the tasks at issue here. Id. at
11-12.
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 had no full-time paralegal or any other staff
to assist in these tasks. Supplemental Aff. of Elizabeth T. Jester,
Esq. [Dkt. No. 16-1] ¶ 4. Further, these tasks cannot be dismissed
as merely “elementary,” given that the “[p]ersonnel at McFarland
-24- were obstructionist and refused to respond to numerous requests for
the records to the point that . . . counsel had to drive to the
school to personally review the records and obtain a copy.” Id. For
these reasons, it was appropriate and reasonable to allow payment
of these charges at an attorney’s rate.
2. Charges Relating to Activities in Advance of Hearings Are Reasonable
Defendant next challenges certain charges made relating to
B.S.’s case on the ground that billing entries from April 15, 2009
through May 14, 2009 “cannot possibly be determined to be related
to the subsequent hearing,” which occurred on August 4, 2009.
Def.’s Opp’n 13. 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.
Defendant cites no caselaw supporting imposition of such a
requirement. Nor could it. Indeed, one of the cases Defendant cites
directly contradicts its claim. 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 charge was tied to a
particular hearing. Civ. No. 04-1940, 2006 WL 1980264, at *4
(D.D.C. July 12, 2006). Plaintiffs have amply shown that charges
for work done less than five months in advance of what was a very
-25- complicated hearing are reasonable. See Supplemental Aff. of
Elizabeth T. Jester ¶ 2 (detailing counsel’s efforts to obtain and
review records).
Defendant’s objection here is particularly unpersuasive in
light of the fact that the reason attorneys often have to conduct
so much work in advance of filing a Due Process Complaint is
because employees of the District of Columbia school system will
not readily provide evaluations and reports, which are not only
essential but to which plaintiffs are entitled. See Id. Plaintiffs’
charges are not made unreasonable when caused by Defendant’s own
delays. Hence, payment of the challenged charges relating to work
in advance of B.S.’s hearing is reasonable and appropriate.
3. Supposedly “Vague” Charges Are Reasonable
Finally, Defendant argues that entries with descriptions such
as “Phone with B. Smith, client” are too vague to determine whether
they are reasonably related to the Due Process Complaint. Def.’s
Opp’n 14.
To be sufficient, 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)). Plaintiffs’ entries
make it clear that counsel was communicating with her clients
regarding their Due Process Complaints. Defendant’s criticisms are
-26- 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.
IV. CONCLUSION
Plaintiffs’ Motion for Summary Judgment is granted. Pre-
judgment interest is awarded, since Defendant did not contest
Plaintiffs’ request in its Opposition. See Kattan by Thomas v.
District of Columbia, 995 F.2d 274, 279 (D.C. Cir. 1993); SEC v.
Bilzerian, Civ. No. 89-1854 (SSH), 1993 WL 542584, at *1 (D.D.C.
June 25, 1993).
/s/ December 9, 2010 Gladys Kessler United States District Judge
Copies via ECF to all counsel of record
-27-