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denying reimbursement for fees incurred so far ahead of a hearing "as to preclude a meaningful relationship with the hearing, absent some explanation from plaintiffs' counsel"
Summary of this case from McNeil v. District of ColumbiaOpinion
Civil Action 02-1496 (HHK).
March 25, 2005
MEMORANDUM OPINION
Theodore Czarniewy, a minor, by his parents and next friends, Kevin and Mary Louise Czarniewy, and twelve other minors and their parents and next friends ("plaintiffs"), bring this suit against the District of Columbia Public School ("DCPS") for reimbursement of attorneys' fees and costs incurred in pursuing administrative complaints against DCPS. Plaintiffs brought these actions under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Before the court is plaintiffs' motion for summary judgment [#10]. Upon consideration of plaintiffs' motion, the opposition thereto, and the record of the case, the court concludes that the motion must be granted in part.
I. BACKGROUND INFORMATION
Plaintiffs, thirteen students with disabilities and their parents, were all prevailing parties in due process hearings or settlement agreements under the IDEA, 20 U.S.C. § 1400 et seq. They claim a total of $119,911.99 in attorneys' fees and costs, which due to partial payment by DCPS had dropped to $109,671.74 at the time they moved for summary judgment, Pls.' Mot. for Summ. J. at 12, and now stands at $38,349.13. Pls.' Notice of Filing (February 7, 2003) at 1, 3-4. DCPS contests various aspects of plaintiffs' fee request.
DCPS does not dispute that each plaintiff in this case is a prevailing party. See Pls.' Statement of Material Facts not in Dispute ¶¶ 2-3.
II. ANALYSIS
A. Legal Standard
IDEA provides that "[i]n any action or proceeding brought under this section, the court, in its discretion, may 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). Additionally, "[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." Id. § 1415(i)(3)(C).
In order for plaintiffs to recover attorneys' fees, they "must first demonstrate that . . . each of them is a prevailing party in the litigation." Watkins v. Vance, 328 F. Supp. 2d 23, 25 (D.D.C. 2004). After plaintiffs cross this threshold, the court must determine whether the fees sought are reasonable; "the most useful starting point for determining the amount of an appropriate fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Blum v. Stenson, 465 U.S.886, 888 (1984). To prove the reasonableness of counsels' rates, plaintiffs must submit information about "the attorneys' billing practices . . ., the attorneys' skill and experience (including the number of years that counsel has practiced law), the nature of counsel's practice as it relates to this kind of litigation and the prevailing market rates in the relevant community." Watkins, 328 F. Supp. 2d at 26.
Plaintiffs also have the burden of demonstrating that the number of hours expended on particular tasks is appropriate. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1337 (D.C. Cir. 1982) (Tamm, J., concurring); Holbrook v. District of Columbia, 305 F. Supp. 2d 41, 45 (D.D.C. 2004). This burden is satisfied by "submitting invoices that are sufficiently detailed to `permit the District Court to make an independent determination whether or not the hours claimed are justified.'" Kaseman v. District of Columbia, 329 F. Supp. 2d 20, 26 (D.D.C. 2004) (citing Concerned Veterans, 675 F.2d at 1327). The invoices "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.'" Concerned Veterans, 675 F.2d at 1327 (citing Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). Rather, the "touchstone inquiry" is whether the charges presented are "reasonable." Holbrook, 305 F. Supp. 2d at 45 (citation omitted).
Once the plaintiffs have provided such information, a presumption arises that the number of hours billed and the hourly rate are reasonable. Watkins, 328 F. Supp. 2d at 26. The burden then shifts to the defendants to rebut the plaintiffs' claim of reasonable hours and rates, which requires that they "provide specific contrary evidence" indicating that a lower rate or a lower tally of hours billed would be appropriate. Covington v. District of Columbia, 57 F.3d 1101, 1109-10 (D.C. Cir. 1995) (quoting Concerned Veterans, 675 F.2d at 1326).
B. Plaintiffs' Fee Request
Plaintiffs state that they have submitted "extensively-documented" claims for fees and costs, including a chart of amounts due and the decisions of the proceedings from which the fees and costs arose. Pls.' Reply at 2. Plaintiffs also file a declaration from one of their attorneys attesting to the reasonableness of the fees and costs being sought, indicating that the qualifications of counsel have been established in numerous actions litigated before this court, Pls.' Mot. for Summ. J., Decl. of Michael Eig ¶ 3 (citing Moore v. District of Columbia, 674 F. Supp. 901, 905-06 (D.D.C. 1987)), and that collectively, counsel have been recognized as "a leading [IDEA] firm in the district." Id. (citing Kattan v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993)). Plaintiffs' counsel also submit detailed billing records for each of the thirteen individual plaintiffs represented in this action, with line entries for every charge indicating the attorney or legal assistant responsible, the date, and the amount of time expended. These billing entries also provide a description, in varying levels of detail, of the billed activity. Pls.' Reply, Exs. 2C-14C.
Both the court and DCPS are familiar with plaintiffs' counsel and their billing rates, and the court finds that they have sufficiently established their experience and qualifications in the area of IDEA litigation. Furthermore, applying the standard set forth in Hensley and Blum, the court notes that as a general matter plaintiffs' attorneys have successfully met their initial burden by submitting sufficiently detailed invoices. However, there are a number of individual billing entries which plaintiffs' counsel have failed to adequately support, to which DCPS raises meritorious objections, and which therefore must be deducted from the total fees and costs awarded to plaintiffs. The court considers each of the district's objections in turn.
C. Defendants' Objections to Fee Request
1. Hourly Rates
First, DCPS argues that because two of the attorneys representing plaintiffs each bill at two different rates, "the lesser rate should be applied uniformly." Defs.' Surreply at 3. The district cites no caselaw to support this proposition. Equally important, the mere fact that the same attorney submits charges for different tasks at different hourly rates does not invalidate those charges. The hourly rate billed by an individual attorney is the "product of a multiplicity of factors," including the level of skill required, time limitations, and the amount to be obtained in the litigation, and therefore "there may be more than one reasonable hourly rate for each of the attorneys, and for each of the kinds of work, involved in the litigation." Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980). Each attorney's rate or rates will vary due to differences in the nature of the task, "the ability of his clients to pay," and other factors. Concerned Veterans, 675 F.2d at 1325; see also Erickson v. City of Topeka, Kansas, 239 F. Supp. 2d 1202, 1210 (D. Kansas 2002). DCPS offers no convincing reason why each attorney should bill at a single rate, or why the lower rate must control.
DCPS also objects to the hourly rates charged for Alethea Weather and Adam Finklestein, apparently paralegals or legal assistants employed by plaintiffs' counsel, claiming that the record is devoid of any information concerning the qualifications of these individuals. In a similar case where plaintiffs did not justify rates for legal assistants by submitting affidavits detailing their experience and education, the District of Columbia Circuit reduced the requested rates for those assistants by 25%. Role Models America, Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004); see also United States ex rel. Averback v. Pastor Med. Assocs., 224 F. Supp. 2d 342, 356 (D. Mass. 2002) (reducing attorneys' fees because of "the complete and utter lack of evidentiary support underlying their claimed hourly rate."). As in Role Models America, plaintiffs here have not justified the rates at which Alethea Weather and Adam Finklestein billed for their time. Accordingly, the court will reduce the total fees incurred by these two individuals by 25%, for a reduction of $467.44.
Alethea Weather billed at an hourly rate of $100, see Pls.' Reply, Exs. 2C, 6C, 7C, 12C; Adam Finklestein billed at an hourly rate of $125, see id., Exs. 6C, 13C, 14C.
2. Excessive, Vague, or Remote Charges
In addition to challenging certain hourly rates, DCPS challenges particular time entries presented by plaintiffs' counsel as either excessive, vague, or too remote in time from the underlying administrative hearing to be properly reimbursable. In total, DCPS seeks reduction of some $6,702.50 for excessive time charges and some $13,073.75 for attorney billing entries that are too remote from the relevant hearing date. Defs.' Surreply, App. 1 at 1-6.
DCPS cites particular examples of excessive or vague charges, such as $1,800 for two due process hearings that "took but a few minutes," and $1,875 for another hearing whose only salient development involved the parties informing the Hearing Officer they had agreed on a briefing schedule. Id., App. 1 at 1-2. The district also assails counsels' billing for "[u]nexplained telephone calls" and for "cryptic" entries, id. at 8, such as "File review of fax from client," see, e.g., Pls.' Reply, Ex. 3C at 1-3, or "Call with client," see, e.g., id. Ex. 8C at 1-2, Ex. 9C at 1-2. While an occasional billing entry for a phone call, letter, or file review lacking further description might not be objectionable, plaintiffs' attorneys seek thousands of dollars for such entries. After extensively reviewing counsels' billing entries, the court agrees with DCPS that a number of the listed charges are so bereft of detail that their reasonableness cannot be determined. These entries total $9,382.56. Because plaintiffs have failed to meet their burden in justifying these expenses, the court will trim these charges by 25%, for an offset of $2,345.64. This is consistent with the reduction other courts have imposed for inadequate billing records. See Mr. X. v. New York State Educ. Dep't, 20 F. Supp. 2d 561, 564 (S.D.N.Y. 1998) (reducing attorneys' fees by 20% for "vague or incomplete time entries"); Mr. and Mrs. B. v. Weston Bd. of Educ., 34 F. Supp. 2d 777, 782 (D. Conn. 1999) (reducing fees by 30% "due to vagueness and inconsistencies").
Specifically, the court reduces plaintiffs' award of fees and costs for excessive or vague time entries submitted in connection with the following plaintiffs: Theodore Czarniewy — $450; Ross Brown — $755.63; Tyler Hill — $300; Michael Lenard — $103.13; Veronika Leone — $474.38; and William Perry — $262.50. See Pls.' Reply, Exs. 2C, 3C, 6C, 8C, 9C, and 12C.
Additionally, the district identifies a number of charges which predate the administrative hearing for each plaintiff by such an extended period of time as to preclude a meaningful relationship with the hearing, absent some explanation from plaintiffs' counsel. No such explanation is forthcoming. The court, therefore, reduces plaintiffs' fee award by $6,240, the total of these unjustified remote time entries.
Plaintiffs' counsel have billed unjustifiably remote activities in the amounts listed for the following plaintiffs: Ross Brown — $975; John Haslach — $210; Tyler Hill — $750; Andrea Hodges — $825; Michael Lenard — $2640; Lea Priamou — $495; Robert Spilsbury — $345. See Pls.' Reply, Exs. 3C, 5C — 8C, 13C, 14C.
3. Unreimbursable Charges
DCPS also raises objections, on four different grounds, to plaintiffs' billing for activities which the district claims are not properly reimbursable at all. First, DCPS notes that on two of the invoices, charges appear for IEP meetings and IEP-related activities. Second, DCPS opposes payment for the preparation of retainer arrangements. Third, DCPS objects to charges for expert witnesses and other expert costs. Finally, DCPS identifies two charges it claims are billing errors. Once more, plaintiffs have made no response to these objections.
a. IEP-Related Charges
Plaintiffs' counsel submit IEP-related expenses for two plaintiffs: $962.50 for Andrea Hodges, Pls.' Reply, Ex. 7C; and $195 for Lea Priamou, id. at Ex. 13C. IDEA clearly states that "[a]ttorneys' fees may not be awarded relating to any meeting of the IEP team unless such meeting is convened as a result of an administrative proceeding or judicial action. . . ." 20 U.S.C. § 1415(i)(3)(D)(ii). Because plaintiffs have provided no indication that their IEP-related charges fall under this exception, the court will further reduce plaintiffs' attorneys' fees by $1,157.50, the sum of these two unjustified charges.
b. Retainer Agreements
DCPS also challenges charges for time spent on preparing retainer agreements. Plaintiffs' counsels' billing sheets indicate charges of $90.00 each for "Letter and retainer documents to client" for John Haslach, Lea Priamou, and Robert Spilsbury. Pls.' Reply at Exs. 5C, 13C, 14C. The district cites to Role Models America to support its argument that attorneys' fees cannot properly include preparation of retainers. In that case, however, the plaintiffs' attorneys billed "unspecified amounts of time" for drafting retainers. Role Models America, 353 F.3d at 973. A more instructive case in the IDEA context is Bailey v. District of Columbia, where the court found that plaintiffs' attorneys' fees properly included charges for the preparation of retainer agreements; to disallow such charges would, in effect, "unfairly punish plaintiffs and their counsel for not staffing [the] case as if they had the manpower of a major law firm." 839 F. Supp. 888, 891 (D.D.C. 1993).
c. Expert Fees
DCPS next objects to plaintiffs' attempts to recover costs associated with experts and expert witnesses, and cites to a Seventh Circuit case, T.D. v. LaGrange School Dist. No. 102, which did not allow expert witness fees to the plaintiff under the IDEA. 349 F.3d 469, 482 (7th Cir. 2003). The district, however, ignores both the weight of the caselaw and the legislative history of IDEA, which "awards `attorneys' fees as part of the costs,' a phrase the congressional conferees intended to encompass `reasonable expenses and fees of expert witnesses.'" Bailey, 839 F. Supp. at 892 (citation omitted). Many other courts have likewise held that IDEA does not prohibit reimbursement for expert witness costs. See, e.g., Gross ex rel. Gross v. Perrysburg Exempted Village Sch. Dist., 306 F. Supp. 2d 726, 738-39 (N.D. Ohio 2004); Brillon v. Klein Indep. Sch. Dist., 274 F. Supp. 2d 864, 870-72 (S.D. Tex. 2003); P.G. v. Brick Township Bd. of Educ., 124 F. Supp. 2d 251, 267 (D.N.J. 2000). Once the plaintiffs have established that these costs are reasonable, they may properly be shifted to the defendants, Bailey, 839 F. Supp. at 892; courts have found expert fees to be reasonable so long as they are not higher than what the expert charged the retaining party. See New York v. Solvent Chemical Co., 210 F.R.D. 462, 470 (W.D.N.Y. 2002).
The House Conference Report on IDEA states that "[t]he conferees intend that the term `attorneys' fees as part of the costs' include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the . . . case." H.R. Conf. Rep. No. 99-687, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 1798, 1808.
The court will follow the District of Columbia Circuit's approach and allow plaintiffs' to bill "reasonable expenses and fees of expert witnesses." Bailey, 839 F. Supp. at 892 (emphasis removed). DCPS presents a raft of objections to specific costs incurred by expert witnesses, such as educational or psychological evaluations or classroom observation visits. Upon examination, most of the expert costs appear reasonable on their face, both in their temporal proximity to each plaintiff's administrative hearing and in their evident relevance to the presentation of that plaintiff's case. Seven expert charges, however, bear no obvious relationship to the due process hearing, and the court will therefore deduct these charges, which total $7,665, from plaintiffs' fee award.
The following expert charges are too temporally remote, or bear no apparent relationship to the following plaintiffs' administrative hearing: John Haslach — $600; Tyler Hill — $2775; Andrea Hodges — $990; David Marks-Schaffer — $2100; Gregory Perry — $175; William Perry — $225; Lea Priamou — $800. See Pls.' Reply, Exs. 5C — 7C, 10C — 13C.
d. Erroneous Charges
Finally, DCPS identifies two errors in the billing statements submitted by plaintiffs' attorneys. First, for plaintiff Theodore Czarniewy, counsel billed $4,500 for 15 hours of work. DCPS points out, and plaintiffs concede, that this entry should be adjusted to show 1.5 hours of work. Defs.' Surreply at 6, Pls.' Reply, Ex. 2C. Accordingly, the fee award will be reduced by $4,050.00.
Second, for plaintiff David Marks-Schaffer, counsel billed a total of $5,850 between February 20, 2002 and February 28, 2002, with the following description: "Preparation Due Process Hearing; Due Process hearing, final preparation, travel, waiting and follow up; Preparation for conclusion of hearing and closing argument; Final day of hearing, final preparation and follow up with clients." Pls.' Reply, Ex. 10C. The hearing for this plaintiff, however, took place on May 22 and 28, 2002. See Pls.' Mot. for Summ. J., Ex. 10A; Defs.' Surreply at 6. These entries, then, appear to either involve a different hearing, perhaps for another client not included among the plaintiffs in this case, or to simply be a clerical error. In the absence of any explanation from plaintiffs for this discrepancy, this amount will be subtracted from plaintiffs' fees. In total, then, $11,007.50 will be deducted for these two billing errors.
D. Summary and Conclusion
Plaintiffs seek $38,349.13 in unpaid fees from DCPS. Based on the foregoing analysis and the resulting calculations, the court deducts from this amount $467.44 for unjustified hourly rates, $2,345.64 for vague or excessive charges, $6,240 for temporally remote charges, $7,665 for unjustified expert expenses, and $11,007.50 for unreimbursable expenses, for a total reduction of $27,725.58 — around 23% of plaintiffs' original fee request. Accordingly, the court will order DCPS to pay the remainder of plaintiffs' attorneys' fees, in the sum of $10,623.55. An appropriate order accompanies this memorandum.
DCPS correctly states that its ability to pay any award is currently subject to a Congressional limitation of $4,000 under the District of Columbia Appropriations Act. Defs.' Surreply at 2, n. 1. The District of Columbia Circuit, however, has held that Congress "did not use [the Appropriations Act] to limit the power of federal courts to award fees under IDEA." Calloway v. District of Columbia, 216 F.3d 1, 12 (D.C. Cir. 2000); see also Blackman v. District of Columbia, 145 F. Supp. 2d 47, 50 (D.D.C. 2001) (statutory cap does not limit the Court's authority to award reasonable attorney's fees," although it "may limit the District's ability to pay the full amount of the fees awarded in a given fiscal year . . .").