UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JEMINA HUNTLEY, ) Plaintiff, ) v. ) ) Civil Action No. 11-157 (AK) DISTRICT OF COLUMBIA, ) Defendant. ) ____________________________________)
AMENDED MEMORANDUM OPINION
This matter is pending before this Court on Plaintiffs’ Motion for Fees and Costs (“Fee
Motion”) and Memorandum in support thereof (“Memorandum”) [11]; Defendant’s opposition
to the Motion (“Opposition”) [12]; and Plaintiff’s reply to the Opposition (“Reply”) [13].1
Plaintiff Jemina Huntley (“Plaintiff’) has requested $2,865.25 in legal fees and costs, a portion of
which is contested by Defendant District of Columbia (“Defendant” or “the District”) on
grounds that the Plaintiff is not a prevailing party, the hourly rate charged by Plaintiff’s counsel
is excessive, and some of counsel’s billing entries are “remote” in time. (Opposition, Exh. 1
[Defendant’s chart of proposed allowable fees and reasons for fee reductions].)
I. BACKGROUND
Plaintiff is the parent of a minor child who brought an administrative action pursuant to
the Individuals with Disabilities Education Act and the Individuals with Disabilities in Education
Improvement Act ( collectively “IDEA”), 20 U.S.C. § 1400 et seq. Pursuant to 20 U.S.C.
§1415(i)(3)(B), a court may award attorney’s fees to a parent who prevails in an IDEA
1 This same Fee Motion is filed in multiple cases involving claims for attorneys’ fees and costs; the Plaintiff in this action is Jemina Huntley. proceeding. Prior to filing this civil action, the Plaintiff participated in a February 8, 2008 due
process hearing. The Hearing Officer considered whether or not the District of Columbia Public
Schools (“DCPS”) denied the student a free appropriate public education (“FAPE”) and
subsequently issued a Hearing Officers’ Decision, on February 15, 2008, requiring the District to
investigate whether Plaintiff already exercised her right to compensatory education, waived her
right to compensatory education, or was entitled to an IEP meeting. (February 29, 2008 HOD at
2-3, quoting Paragraph 3 of the “Order” which accompanied the February 15, 2008 HOD.) 1 The
District does not dispute Plaintiff’s prevailing party status for the February 15, 2008 HOD.
Plaintiff subsequently filed a Motion for Clarification on February 26, 2008, to amend the
February 15, 2008 HOD to establish a deadline for DCPS’s investigation and the compliance
with the HOD. (February 29, 2008 HOD [1] at 2-3.) DCPS did not file a response to the Motion
for Clarification and the Hearing Officer established a March 20, 2008 deadline for the
completion of DCPS’s investigation and its compliance with the February 15, 2008 HOD. (Id.)
The District disputes Plaintiff’s prevailing party status as to the February 29, 2008 HOD ruling
on the Motion for Clarification. (Opposition, Exh. 1.)
Plaintiff originally filed her complaint for legal fees and costs with the Small Claims and
Conciliation Branch of the Superior Court of the District of Columbia. Defendant removed this
and other simultaneously filed cases to this Court and the parties consented to the referral of all
such cases to the undersigned Magistrate Judge for all purposes. The parties were directed to
brief the issues in these cases in the form of motions for legal fees and responses thereto.
1 The only HOD that was filed with this Court is the February 29, 2008 HOD.
2 II. LEGAL STANDARD
The IDEA gives courts authority to award reasonable attorney’s fees to the parents of a
child with a disability who is the prevailing party. 20 U.S.C. §1415(i)(3)(B). An action or
proceeding under IDEA includes both civil litigation in federal court and administrative
litigation before hearing officers. Smith v. Roher, 954 F. Supp. 359, 362 (D.D.C. 1997); Moore
v. District of Columbia, 907 F.2d 165, 176 (D.C. Cir. 1990), cert. denied, 498 U.S. 998 (1990).
The plaintiff has the burden of establishing the reasonableness of any fee requests. See
In re North, 59 F.3d 184, 189 (D.C. Cir. 1995); Covington v. District of Columbia, 57 F.3d 1101,
1107 (D.C. Cir. 1995) (“[A] fee applicant bears the burden of establishing entitlement to an
award, documenting the appropriate hours, and justifying the reasonableness of the rates.”) “An
award of attorneys’ fees is calculated by multiplying a reasonable hourly rate by the number of
hours reasonably expended on the case.” Smith, 954 F. Supp. at 364 (citing Hensley v.
Eckerhard, 461 U.S. 424, 433 (1983)); Blum v. Stenson, 465 U.S. 886, 888 (1984). The result of
this calculation is the “lodestar” amount. Smith, 954 F. Supp. at 364.
20 U.S.C. §1415(i)(3)(C) states that “[f]ees awarded under this paragraph shall be based
on rates prevailing in the community in which the action or proceeding arose for the kind and
quality of services furnished.” 20 U.S.C. §1415(i)(3)(C). To demonstrate a reasonable hourly
rate, the fee applicant must show: an attorney’s usual billing practices; counsel’s skill,
experience and reputation; as well as the prevailing market rates in the community. Covington,
57 F.3d at 1107. The determination of a “market rate for the services of the lawyer is inherently
difficult” and is decided by the court in its discretion. Blum, 465 U.S. at 896 n.11. “To inform
and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce
3 satisfactory evidence . . . that the requested [hourly] rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id. An attorney’s usual billing rate may be considered the “reasonable rate” if it
accords with the rates prevailing in the community for similar services by lawyers possessing
similar skill, experience and reputation. Kattan by Thomas v. District of Columbia, 995 F.2d
274, 278 (D.C. Cir. 1993) (emphasis added).
A party moving for summary judgment on legal fees accordingly must demonstrate
prevailing party status and the reasonableness of the fees requested in terms of hours spent and
hourly rate. Under Fed. R. Civ. P. 56 (a), summary judgment shall be granted if the movant
shows that there is “no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.” Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). Summary judgment should be granted against a party “who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The court is required to draw all justifiable inferences in the nonmoving party’s favor and
to accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. The nonmoving
party must establish more than “the mere existence of a scintilla of evidence” in support of its
position. Id. at 252. Nor may the non-moving party rely on allegations or conclusory
statements; instead, the non-moving party is obliged to present specific facts that would enable a
reasonable jury to find it its favor. Greene v Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
Under the IDEA, parents of a child with a disability may only collect reasonable
attorneys’ fees if they are the “prevailing party.” 20 U.S.C. §1415(i)(3)(B)(I). The District of
4 Columbia Circuit uses 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.” Wilson v. Gov't of Dist. of Columbia, 269 F.R.D. 8, 15 (D.D.C. 2010) (citations
omitted). An order from an administrative proceeding that awards a party relief, such as an
IDEA HOD, qualifies as “judicial relief.” Abraham v. Dist. of Columbia, 338 F. Supp. 2d 113,
120 (D.D.C. 2004).
III. ANALYSIS
A. Prevailing Party Status and Challenges to Time Charges
The District does not dispute Plaintiff’s prevailing party status for the February 15, 2008
HOD. The District only disputes Plaintiff’s prevailing party status for the February 29, 2008
HOD regarding the Motion for Clarification. (Opposition, Exh. 1.) The District attempts to
distinguish the February 29, 2008 HOD as a separate proceeding because it responds to a Motion
for Clarification and not to the Complaint, like the February 15, 2008 HOD. (Opposition, Exh.
1.) Beyond this objection the District provides no other support or rationale in its Opposition for
excluding Plaintiff’s attorney time related to the February 29, 2008 HOD. (Opposition, Exh. 1.)
The Hearing Officer granted Plaintiff everything he asked for in his Motion for Clarification,
which was unopposed by the District. (February 29, 2008 HOD [1] at 2-3.) The February 29,
2008 HOD established a deadline for the action required by the District pursuant to the February
15, 2008 HOD. (February 29, 2008 HOD [1] at 2-3.) In this way, the attorney time relating to
the February 29, 2008 HOD is a direct follow up to the February 15, 2008 HOD, in which
Plaintiff was the uncontested prevailing party. The filing of the Motion for Clarification, which
5 resulted in an HOD granting the “clarification” sought, did not initiate a new proceeding and
thus does not require a new determination of prevailing party status. The February 29, 2008
HOD relates back to the filing of the initial due process complaint and the February 15, 2008
HOD.
In addition to the Defendant’s objection to attorney time related to the February 29, 2008
HOD, Defendant claims that some of the hours billed by Plaintiff’s counsel should not be
compensated because they are too remote in time as to “preclude a meaningful relationship with
the hearing.” (Opposition at 16, citing Czarniewy v. District of Columbia, 2005 U.S. Dist.
LEXIS 5161, at *11 (D.D.C. March 25, 2005)). See also Role Models America, Inc. v.
Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (where administrative fee charges have no
temporal proximity to the proceeding on which the right to fees is based but instead appear to be
administrative matters between counsel and his client, these charges are not appropriate for
reimbursement). Defendant asserts that “[t]he statute does not contemplate an undefined form of
ongoing representation of students [but instead] [i]t quantifies the activities for which school
districts are obliged to reimburse legal representation to the administrative process described in
20 U.S.C. §1415. . . .” (Opposition at 16.)
A review of the time sheets submitted by Plaintiff shows that the time charges noted by
counsel have sufficient temporal proximity to February 15, 2008 HOD. Some of the time entries
pre-date and include the due process hearing, reflecting preparation for and attendance at the
hearing; several time entries note the hearing and counsel’s actions taken in response to the
Hearing Officer’s Determination; and finally, some time entries following the HOD reflect
follow-up by counsel, including time spent ensuring HOD compliance. This Court will not
6 further reduce time charges based on Defendant’s claim that some charges are remote.
B. Reasonableness of Hourly Rates
Plaintiff seeks fees for the services of two lawyers and two paralegals/law clerks, to be
paid at the following rates: $475 per hour for Douglas Tyrka, an attorney with approximately 10
years experience during the relevant time period; $268 per hour for Zachary Nahass, an attorney
with approximately 1-2 years experience during the relevant time period; and $146/150 per hour
for Patrick Meehan and Camille McKenzie, who were paralegals/law clerks with the firm Tyrka
& Associates during that same period of time.2 (Plaintiff’s Itemization of Fees/Expenses [1];
Fee Motion [11], Exh. 2 [Verified Statement of Douglas Tyrka (“Tyrka”)] ¶¶ 8-12, 15, 16, 18.)
According to Tykra’s Verified Statement (“Verified Statement”), “[t]he hourly rates in the
itemization are the rates Tyrka & Associates has customarily charged.” (Exh. 2 ¶4.)
Tyrka further asserts that “clients have retained Tyrka & Associates with the
understanding and agreement that the client would retain full responsibility for all fees regardless
of what was reimbursed by third parties, at rates consistent with ‘the Laffey [M]atrix’ as adjusted
per the finding in Salazar v. District of Columbia, 123 F. Supp. 2d 8, 14-15 (D.D.C. 2000), and
other cases.” (Exh. 2 ¶4.)3 Plaintiff relies upon the rates set forth in the “enhanced” Laffey
2 The law firm’s hourly rate for paralegal/law clerk charges occurring after May 31, 2008 increased from $146/hour to $150/hour, even though the “enhanced” Laffey Matrix rates increased from $146/hour to $152/hour during that same time. 3 The Laffey Matrix is “a schedule of charges based on years of experience” developed in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rev’d on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985), as modified by Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988). The Laffey Matrix was first developed based upon information about the prevailing rates charged for complex federal litigation in the District of Columbia, and it is maintained by the United States Attorney’s Office for the District of Columbia and is updated annually to reflect increases in the local
7 Matrix in her request for attorney’s fees but Tyrka’s Verified Statement does not indicate how
frequently Plaintiff’s counsel is paid at these “enhanced” Laffey rates.4 Nor has counsel
presented affidavits attesting to the actual billing rates of lawyers who do similar IDEA work.
Furthermore, the Plaintiff has not provided specific information about the nature or complexity
of the IDEA administrative work performed in this case.
Plaintiff asserts that in order to demonstrate prevailing market rates, she may “point to
such evidence as an updated [enhanced] version of the Laffey Matrix or the U.S. Attorney’s
Office [“USAO”] Matrix, or [her] own survey of prevailing market rates in the community.”
(Memorandum in support of Fee Motion (“Memorandum”) at 8 (citing Covington, 57 F.3d at
1109 (additional citation omitted))). In the Covington case, which involved allegations of civil
rights violations, the Court of Appeals for the D. C. Circuit did look to Laffey rates for prevailing
market rates but the relevant market therein was “complex federal litigation,” 57 F.3d at 1110.
In contrast, this case involves IDEA litigation, which is not complex federal litigation because
most if not all of the attorney’s fees in question are the result of counsel’s preparation for
attendance at routine administrative hearings. Accordingly, the Laffey Matrix rates are
inapplicable as prevailing market rates.
Consumer Price Index. See Laffey Matrix - 2003-2012, n.3, available at: htttp://www.justice.gov/usao/dc/divisions/civil_Laffey_Matrix_2003-2012.pdf. The “enhanced” Laffey Matrix is a schedule of fees based on the original Laffey Matrix, with adjustments to reflect increases in the national Legal Services Index, prepared by the United States Bureau of Labor Statistics. (Fee Motion, Exh.3.) 4 See generally MacClarence v. Johnson, 539 F. Supp. 2d 155, 160 (D.D.C. 2008)(expressing concern that “standardized hourly rates overcompensate lawyers whose practices are contingent fee based and therefore compensated at an hourly rate they never charge and none of their clients could pay”).
8 Plaintiff additionally relies upon Rooths v District of Columbia, Civil Action No. 09-
0492, Report and Recommendation of March 31, 2011, and Friendship Edison Pub. Charter
Sch. v. Suggs, Civil Action No. 06-1284, Motion for Attorneys’ Fees of July 10, 2008 and
Memorandum Opinion of March 30, 2009 at 5-8. (Fee Motion, Exhs. 5-7).5 According to
Plaintiff, in these two IDEA cases litigated in this United States District Court, the firm’s clients
received an award of fees “based on rates exactly in line with those presented here, . . . ”
(Memorandum at 8.)
As a preliminary matter, this Court notes that the mere showing that a high hourly rate
was approved in another case does not in and of itself establish a new market rate or prove that
the new rate is reasonable. Furthermore, Plaintiff’s reliance on Rooths v District of Columbia,
Civil Action No. 09-0492, Report and Recommendation of March 31, 2011 at 10-11 (Fee
Motion, Exh. 5), is misplaced because the trial court ultimately rejected the application of
enhanced Laffey rates, applied Laffey Matrix rates as a starting point, and then reduced those
rates by 25%. Rooths v District of Columbia, 802 F. Supp. 2d 56, 62-63 (D.D.C. 2011).
In Rooths, the Honorable Paul L. Friedman noted that “[i]n this circuit, the rates
contained in the Laffey Matrix are typically treated as the highest rates that will be presumed to
be reasonable when a court reviews a petition for statutory attorneys’ fees.” 802 F. Supp. 2d at
61. The trial court declined “to approve as reasonable the inflated rates contained in a proposed
alternative fee matrix.” Id. at 61-62; see Blackman v. District of Columbia, 677 F. Supp. 2d 169,
5 Plaintiff relies on Friendship Edison Pub. Charter Sch. v. Suggs, Civil Action No. 06- 1284, Motion for Attorneys’ Fees of July 10, 2008 and Memorandum Opinion of March 30, 2009 at 5-8, but this case is inapposite because there was no challenge to the reasonableness of the hours expended by counsel or the hourly rates in that case.
9 176 (D.D.C. 2010) (in determining prevailing market rates, the court declined to apply enhanced
Laffey rates). The Rooths court further refused to apply enhanced Laffey rates, in part because it
found that the “[enhanced Laffey] matrix was generated using national statistics rather than
measurements particular to the District of Columbia area.” Rooths at 62 (emphasis in original);
see also DL v. District of Columbia, 256 F.R.D. 239, 243 (D.D.C. 2009) (because the USAO
[Laffey] Matrix accounts for price inflation within the local community, it more aptly focuses on
the relevant community than the [enhanced] Laffey Matrix based on the legal services index).
The Rooths court commented that “[w]hile it is doubtless true that some sectors of the legal
services industry have experienced rapid fee inflation in recent years, [it was] unconvinced that
fees associated with IDEA litigation in the District of Columbia have increased at the same rate.”
Rooths at 62.
Recognizing the difficulty courts encounter in determining what are reasonable legal
fees, this Court agrees with the rationale set forth in Rooths, and finds that the Plaintiff’s reliance
on an enhanced Laffey Matrix is unsupported because such Matrix does not provide an accurate
representation of District of Columbia legal fees applicable to IDEA cases. Nor has Plaintiff
demonstrated that IDEA litigation involving administrative hearings is the type of “complex
federal litigation” encompassed by the Laffey rates. See McClam v. District of Columbia, Civil
Action No. 11-381 (RMC), September 6, 2011 Memorandum Opinion at 8 (declining to apply
Laffey rates in part on grounds that “IDEA cases are generally not complex [and in that case,]
Plaintiffs . . . pointed to no novel issue or other complexity that turned this, particular IDEA
10 case into a complicated piece of litigation.”)6
Defendant’s argument against imposition of Laffey rates primarily focuses on the Rooths
and McClam decisions, supra. but the Defendant also asserts that “Plaintiffs have made no
serious attempt to show that rates under the Laffey Matrix are appropriate in this case or, more
specifically, that Laffey rates were necessary to attract competent counsel in the underlying,
special education matters.” (Opposition at 13.)7 Defendant further argues that there is no
“inherent right to Laffey rates.” (Opposition at 13 (citation omitted)); see Lively v Flexible
Packaging Assoc., 930 A.2d 984, 990 (D.C. 2007) (accepting the Laffey Matrix as one legitimate
means of calculating attorney’s fees and using it as a starting point instead of an automatic
application). Federal courts do not automatically have to award Laffey rates but instead they can
look at the complexity of the case and use their discretion to determine whether such rates are
warranted. See Muldrow v. Re-Direct, Inc., 397 F. Supp. 2d 1, 4-5 (D.D.C. 2005) (awarding fees
at a rate 25% less than Laffey in a “relatively straightforward negligence suit”).
This Court follows the reasoning of the Rooths case and other cases declining to apply
enhanced Laffey rates. Considering that this is a straightforward case seeking IDEA legal fees,
this Court concludes that the Plaintiff has failed to demonstrate that the hourly rates set by her
6 The McClam court acknowledged that “[f]ederal district courts in this circuit disagree whether Laffey rates should be applied in IDEA cases.” McClam Memorandum Opinion at 6 (citations omitted). 7 See Kenny A. v. Perdue, 130 S. Ct. 1662, 1672 (2010) “a ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case”); see also Lively v. Flexible Packaging Association, 930 A.2d 984, 990 (D.C. 2007) (cautioning that the goal of fee-shifting provisions is not to provide counsel with a windfall but to attract competent counsel).
11 counsel, which are based on enhanced Laffey rates, are reasonable.8 Such enhanced rates do not
reflect what the local legal market will bear in terms of legal fees for IDEA litigation. Using the
[USAO] Laffey Matrix as a starting point for determination of a reasonable hourly rate, this
Court determines that the hourly rate for Douglas Tyrka [attorney with 10 years experience]
would be $315 instead of $475; the hourly rate for Zachary Nahass [attorney with 1-2 years
experience] would be $215, instead of $268; and the rate for a paralegal/law clerk [Patrick
Meehan and Camille McKenzie] would be $125/130 instead of $146/150.
The Laffey Matrix rates are the presumed maximum rates appropriate for “complex
federal litigation.” Covington v. District of Columbia, 57 F.3d at 1103. Because IDEA litigation
generally does not fall within that category, the Laffey rates should be further reduced. The case
at issue is no exception to that general rule insofar as it involves a routine administrative
proceeding summarized in the Hearing Officer’s Decision dated December 24, 2007 (HOD [1])
and the time spent in preparation for the hearing was nominal. (Itemization of Fees/Expenses.)
In such a case, an hourly rate below the Laffey Matrix rates is appropriate. See Wilson v. District
of Columbia, Civil Action No. 09-2258, 2011 WL 1428090, at *3 (D.D.C. Apr. 14, 2011) (Laffey
Matrix is “not generally applicable to IDEA cases because they are not usually complex”); A.C.
ex rel. Clark v. District of Columbia, 674 F. Supp. 2d 149, 155 (D.D.C. 2009) (finding the
USAO Laffey inapplicable in an IDEA case where “almost all of the attorney’s fees in question
are the result of counsel’s preparation for attendance at routine administrative hearing”); Agapito
v. District of Columbia, 525 F. Supp. 2d 150, 155 (D.D.C. 2007) (adjusting attorney fee award
8 By statute the Court determines the reasonableness of the hourly rate. The negotiated legal fee hourly rate between the attorney and his client may be more or less than the hourly rate set by the Court.
12 and declining to rely on the Laffey Matrix for these “relatively simple and straightforward IDEIA
cases”). The Court will therefore award fees at an hourly rate equal to three-quarters of the
USAO Laffey Matrix rate, which is $236 for Tyrka, $161 for Nahass, and $94/98 for Meehan and
McKenzie.9
C. Costs
Plaintiff seeks costs in the amount of $3.00 for copying expenses and $62.00 for faxing
expenses. Costs for copying, faxing and postage are customarily included in fee awards in IDEA
litigation. Kaseman v. District of Columbia, 329 F. Supp. 2d 20, 28 n.7 (D.D.C. 2004).
Defendant does not contest these costs and accordingly, the Court will award such expenses to
Plaintiff.
D. Total Fees and Costs Awarded
The amount of fees and costs requested by Plaintiff is $2,865.25, which can be broken
down into $2,800.25 for legal fees and $65.00 for costs. The legal fees claimed were based on
1.75 hours billed at $475/hour, 6.25 hours billed at $268/hour, 1.50 hours billed at $146/hour,
and .5 hours billed at $150/hour.10 This Court has determined that hourly rates based on 75% of
the Laffey Matrix rate are applicable, which means that 1.75 hours are billed at $236/hour, 6.25
hours are billed at $161/hour, 1.50 hours are billed at $94/hour, and .5 hours are billed at
9 Defendant notes that a 25% reduction in Laffey Matrix rates brings these fees in line with its DCPS Fee Guidelines (Opposition at 15); however, it is not the intent of this Court to mirror the DCPS Fee Guidelines but instead to apply a percentage reduction that represents the fact that most IDEA litigation [involving administrative proceedings] is not complex federal litigation warranting the application of Laffey Matrix rates. 10 Applying the enhanced Laffey Matrix, the hourly rate for paralegals from June 1, 2008 through May 31, 2009 was $152/hour. The Court is uncertain why Plaintiff used a rate of $150/hour post-June 1, 2008.
13 $98/hour. Total fees thus equal $1,609.25 and total costs equal $65.00, which together total
$1,674.25
DATED: May 3, 2012 _________________/s/________________ ALAN KAY UNITED STATES MAGISTRATE JUDGE