Opinion
Civil Action No. 15-851 (ESH)
2016-08-30
DAMARCUS S., by and through his Parent, K.S., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
Caitlin E. McAndrews, McAndrews Law Offices, PC, Alexandria, VA, Michael E. Gehring, McAndrews Law Offices, Berwyn, PA, for Plaintiffs. Aaron Josiah Finkhousen, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.
Caitlin E. McAndrews, McAndrews Law Offices, PC, Alexandria, VA, Michael E. Gehring, McAndrews Law Offices, Berwyn, PA, for Plaintiffs.
Aaron Josiah Finkhousen, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, United States District Judge
Plaintiffs Damarcus S. and his mother, K.S., have moved for attorney's fees and costs pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. , which grants the Court discretion to award reasonable fees to a prevailing party. See id. § 1415(i)(3)(B). (Pl.'s Mot. for Attorneys' Fees and Costs [ECF No. 25] ("Pls.' Mot.").) The District of Columbia (the "District") does not dispute that plaintiffs are entitled to fees, but it argues that plaintiffs' request of $212,081.51 in fees and $4,097.60 in costs is unreasonable and should be denied in part. (See Def.'s Opp'n Br. [ECF No. 27] at 3.) The Court agrees that plaintiffs are not entitled to the full amount requested, though they are entitled to more than the District proposes to pay. Therefore, plaintiffs' motion will be granted in part and denied in part.
BACKGROUND
The background of this case has been laid out in great detail in the Court's previous Memorandum Opinion. See Damarcus S. v. Dist. of Columbia , 190 F.Supp.3d 35, 40–42, 2016 WL 2993158, at *1–*2 (D.D.C. May 23, 2016). As is relevant here, plaintiffs filed an administrative complaint with the District in December 2014, alleging that numerous deficiencies in the District's educational plans for Damarcus denied him a Free Appropriate Public Education ("FAPE"), to which he is entitled under IDEA. Id. at 41–42, 2016 WL 2993158 at *2. After an administrative Due Process Hearing in March 2015, the Hearing Officer determined that plaintiffs were time-barred from pursuing any claims involving conduct prior to December 16, 2012, and rejected all but one of plaintiffs' remaining claims on the merits. Id. As a result of the District's failure to conduct a behavioral assessment and put in place an intervention plan for Damarcus in 2013 and 2014, plaintiffs were awarded (1) reimbursement for an independent behavioral evaluation of Damarcus, and (2) fifty hours of behavioral support services. Id. But without explanation, the Hearing Officer ruled that those behavioral-support hours would be forfeited if plaintiffs did not use them before June 30, 2016. Id.
Plaintiffs also filed two previous complaints that involved similar claims, but they were withdrawn prior to being adjudicated. Damarcus S., 190 F.Supp.3d at 41–42, 2016 WL 2993158, at *2.
Plaintiffs filed suit in this Court to challenge the Hearing Officer's adverse determinations, and the parties then cross-moved for summary judgment. The Court found for plaintiffs on many claims: (1) that the Hearing Officer erred in her blanket dismissal of all claims arising out of pre-December 2012 conduct, rather than conducting an individualized analysis of when plaintiffs knew or should have known about each claim, id. at 47–48, 2016 WL 2993158 at *6 ; (2) that the District denied Damarcus a FAPE in 2013 and 2014 by dramatically cutting his speech-language services and failing to adjust his Individualized Education Program ("IEP") in response to his demonstrated lack of progress, id. at 54–55, 2016 WL 2993158 at *12 ; (3) that the Hearing Officer's compensatory award was improperly limited as to both subject (behavioral support services) and time (the June 2016 forfeiture provision), id. at 57–58, 2016 WL 2993158 at *14 ; (4) that the compensatory award of fifty hours was insufficient by failing to reflect the pervasive effect of Damarcus's behavior on all aspects of his education, id. at 57–59, 2016 WL 2993158 at *14–*15 ; and (5) that plaintiffs were entitled to reimbursement for an independent neuropsychological evaluation of Damarcus, id. at 58–59, 2016 WL 2993158 at *15. In light of deficiencies in the record, the Court remanded to the Hearing Officer to allow the parties to more fully brief the issue of an appropriate award of compensatory education. Id. at 54–55, 58–59, 2016 WL 2993158 at *12, *15.
On the other hand, the Court rejected plaintiffs' remaining claims: (1) that Damarcus's 2013 and 2014 IEPs were necessarily deficient because they relied on deficient neuropsychological and speech-language evaluations, id. at 49–50, 2016 WL 2993158 at *8 ; (2) that Damarcus was denied a FAPE because his IEPs failed to set out measurable baselines, failed to specify that he would receive research-based, peer-reviewed instruction, and set inappropriately low benchmarks, id. at 51–53, 2016 WL 2993158 at *9–*10 ; (3) that the District failed to place Damarcus in the least restrictive environment, id. at 54–55, 2016 WL 2993158 at *12 ; (4) that the District inappropriately implemented Damarcus's IEPs, id. at 55–56, 2016 WL 2993158 at *13 ; (5) that the District's treatment of Damarcus violated Section 504 of the Rehabilitation Act, id. at 59–60, 2016 WL 2993158 at *16 ; and (6) that the District should be required to immediately develop an appropriate IEP, id. at 60, 2016 WL 2993158 at *17.
ANALYSIS
The District does not dispute plaintiffs' entitlement to attorney's fees, given the many claims on which plaintiffs have prevailed. However, the District argues that the award requested by plaintiffs is unreasonable on several grounds, which the Court will now turn to.
I. UNREASONABLE BILLING RATES
The District first argues that the hourly rates sought by plaintiffs' attorneys and paralegals are unreasonable. (Def.'s Opp'n Br. at 4–11.) In determining a reasonable fee award, the Court must ensure that it is "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). Plaintiffs bear the burden on this issue, as with all other aspects of their fee request. See Covington v. Dist. 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[.]").
In addition to offering their own attorneys' affidavits, fee applicants may also "submit attorneys' fee matrices as one type of evidence that 'provide[s] a useful starting point' in calculating the prevailing market rate." Eley v. Dist. of Columbia , 793 F.3d 97, 100 (D.C.Cir.2015) (quoting Covington , 57 F.3d at 1109 ). These matrices set out the hourly fees charged by attorneys at various levels of experience in a particular community for the same type of work, which offer a "somewhat crude" approximation of prevailing market rates. Snead v. Dist. of Columbia , 139 F.Supp.3d 375, 378 (D.D.C.2015) (quoting Eley , 793 F.3d at 101 ). The most commonly used fee matrix was the "Laffey Matrix," which was compiled by the District United States Attorney's Office ("USAO") and updated annually to adjust for inflation. Eley , 793 F.3d at 100–01. However, beginning on June 1, 2015, the USAO discontinued the Laffey Matrix in favor of a matrix that uses a new methodology, which the Court will refer to as the "USAO Matrix." See USAO Attorney's Fees Matrix—2015–2016, https://www.justice.gov/usao-dc/file/796471/download.
The USAO Matrix rates are generally higher than the previous year's Laffey Matrix rates. Compare USAO Attorney's Fees Matrix—2015–2016, https://www.justice.gov/usao-dc/file/796471/download, with Laffey Matrix—2014-2015, https://www.justice.gov/sites/default/files/usao-dc/legacy/2014/07/14/LaffeyM¨atrix_2014-2015.pdf. That said, once annual inflation is considered, the matrices are similar enough to make reliance on Laffey Matrix cases appropriate here. Indeed, the parties' briefs tend to use the "Laffey " and "USAO" descriptors interchangeably. (See Def.'s Opp'n Br. at 6 n.2.)
Here, plaintiffs' counsel submit an affidavit from Dennis C. McAndrews, the Managing Partner at their firm, which attests that these "hourly rates for attorneys of comparable experience and skill in this area are at least equal to, and frequently exceed, the hourly rates" they have requested. (Ex. B to Pls.' Mot. [ECF No. 25-3] ¶ 17.) They also submit affidavits from local attorneys who did not work on this case, stating that the rates charged by plaintiffs' attorneys are consistent with those charged by their firms and other area firms, including in IDEA cases. (Ex. 1 to Pls.' Reply Br. [ECF No. 29-1] ¶¶ 13, 22; Ex. 2 to Pls.' Reply Br. [ECF No. 29-2] ¶ 10.) Finally, they submit the 2015-16 USAO Matrix, which reflects rates charged in District of Columbia courts in civil cases where a fee-shifting statute permits the prevailing party to recover "reasonable" attorney's fees. (Ex. C. to Pls.' Mot. at 1 & n.1.) The attorney rates listed in the 2015-16 USAO Matrix are uniformly higher than those sought by plaintiffs. (Compare Ex. A to Pls.' Mot. with Ex. C to Pl.'s Mot. at 1.)
By its own terms, the USAO Matrix is appropriately considered in this federal IDEA case, given the IDEA's fee shifting provision. (See Ex. C. to Pls.' Mot. at 1 & n.1; 20 U.S.C. § 1415(i)(3)(B).)
The District argues that the rates in the Laffey or USAO Matrices should not be applied here, because those matrices establish presumptive rates for more complex federal litigation than typical IDEA administrative proceedings. (Def.'s Opp'n Br. at 6.) Instead, it argues that plaintiffs should receive 75% of Laffey or USAO rates because "the overwhelming majority of cases apply [ ] [such] rates to similar [IDEA] litigation, especially in cases since Eley ." (Id. at 7 & n. 4, 9.) Plaintiffs respond by citing a slew of post-Eley cases in which full Laffey or USAO rates were awarded in IDEA cases. (See Pls.' Reply Br. at 6 n.1.)
At the outset, it is worth repeating that plaintiffs do not seek full USAO rates, or even a uniform percentage of them. Instead, they seek the rates customarily charged by their firm (see Ex. B to Pls.' Mot. ¶ 4), which vary by attorney and are uniformly lower than the USAO Matrix rates. For instance, Dennis McAndrews' rate of $450 is only 79% of what an attorney of his experience level (38 years) would receive under the current USAO Matrix. In fact, two junior attorneys who worked on the case are billed at rates less than 75% of the current USAO rate. (Seeid. ¶ 11; Ex. A to Pls.' Mot. (billing out fourth-year attorneys at $230/hour and $240/hour, which is 71% and 74% of the USAO rates, respectively). The highest attorney rates sought by plaintiffs in relation to the current USAO Matrix are only 85% of those rates. (See Ex. A to Pls.' Mot. (billing out Attorney CEM (4 years) at $275/hour, where full USAO rate is $325/hour). Thus, the District's argument about the applicability of full Laffey or USAO rates in IDEA litigation is off the mark—the relevant question is whether plaintiffs have shouldered their burden to show that the rates they actually seek are reasonable.
Moreover, plaintiffs are correct that many of the cases cited by the District involved routine IDEA matters, and thus, a 75% Laffey rate was deemed appropriate in that context. See, e.g. , Snead , 139 F.Supp.3d at 381 (involving an "unremarkable IDEA administrative representation"); Joaquin v. Friendship Pub. Charter Sch. , 188 F.Supp.3d 1, 19–20, 2016 WL 3034151, at *14 (D.D.C. May 27, 2016) (case was not "unusually complex"); Platt v. Dist. of Columbia , 168 F.Supp.3d 253, 257, 2016 WL 912171, at *11 (D.D.C. Mar. 7, 2016) (quoting Blackman v. Dist. of Columbia , 56 F.Supp.3d 19, 29 (D.D.C.2014) ) (case involved "no 'novel questions of law,' burdensome discovery issues, or other unusual complexities"); McAllister v. Dist. of Columbia , 21 F.Supp.3d 94, 109 (D.D.C.2014) (finding lack of complexity in cases where, inter alia , school district either defaulted or failed to contest issues, no administrative hearing was conducted due to settlement, or hearing had limited number of witnesses).
Here, in contrast, the parties engaged in a two-day hearing with ten witnesses and sixty-eight exhibits, resulting in the creation of a 1,300 page administrative record. (See Pls.' Reply Br. at 11; Administrative Record [ECF Nos. 12-13].) The case involved a challenging question of statutory interpretation that was a matter of first impression in this district, which arose from an apparent drafting error in the 2004 amendment of the IDEA. See Damarcus S. , 190 F.Supp.3d at 44–45, 2016 WL 2993158, at *4 ; see also Blackman , 56 F.Supp.3d at 25 ("novel or complicated questions of law" indicate complexity). The District discounts that complexity when it chides plaintiffs for "[m]erely summarizing the reasoning of" G.L. v. Ligonier Valley School District Authority , 802 F.3d 601 (3d Cir.2015), which this Court ultimately adopted. (See Def.'s Opp'n Br. at 8.) But the statutory issue was apparently complex enough that both parties here actually reversed the positions they took below. (See Def.'s Cross-Mot. for Summ. J. [ECF No. 16] at 13 n.6.) Furthermore, the issue of how to properly evaluate Damarcus's disability—whether to use a Full-Scale IQ or General Ability Index—was complicated, something the Court's Memorandum Opinion expressly noted. See Damarcus S. , 190 F.Supp.3d at 50, 2016 WL 2993158, at *8 ("When considering an issue of such complexity ...."). Put simply, this was not a run-of-the-mill IDEA proceeding, and therefore, the Court finds that rates falling between 75% and 100% of Laffey / USAO Matrix rates are reasonable.
This raises the question of which rates should serve as the appropriate point of comparison: the current USAO rates, or the rates that applied in the years that the work was actually performed. As noted, plaintiffs' requested rates range from 71% to 85% of the current USAO rates; however, when using the lower 2013-14 Laffey rates as a point of comparison, those relative percentages rise to 84% to 110%. (See Ex. A to Pls.' Mot.; Ex. B to Pls.' Mot. (billing out Attorney MEG (25 years) at $430/hour, where full Laffey rate was $510/ hour; billing out Attorney CEM (2 years) at $275/hour, where full Laffey rate was $250/hour). In other words, plaintiffs seek rates for previous years' work that occasionally exceed the Laffey rates that applied in those years, even though they all fall below the USAO Matrix rates.
See Laffey Matrix—2013–2014, https://www.justice.gov/sites/default/files/usao-dc/legacy/2013/09/09/Laffey_Matrix2¨014.pdf.
The District argues that historical Laffey rates should apply (Def.'s Opp'n Br. at 10-11), and plaintiffs respond that the D.C. Circuit has sanctioned the application of current rates, as a means of accounting for the delay in receiving payment, (Pls.' Reply Br. at 14 (citing West v. Potter , 717 F.3d 1030, 1034 (D.C.Cir.2013).) West was a Title VII case, a fact that was expressly relevant to the result in that case. See 717 F.3d at 1034. West also notes that there is a "strong presumption" in favor of the application of historical rates. Id. ; see also Jackson–Johnson v. Dist. of Columbia , 174 F.Supp.3d 109, 112–13, 2016 WL 1267153, at *3 (D.D.C. Mar. 31, 2016) (applying historical rates); Reed v. Dist. of Columbia , 134 F.Supp.3d 122, 137 (D.D.C.2015) (same). There was no unusual delay in this three-year IDEA case, no dilatory conduct on the part of the District, and as noted, the rates requested by plaintiffs are more reasonable in comparison to recent years' Matrix rates than to those prior years' rates. See West , 717 F.3d at 1034 (appropriate to apply historical rates if delay in payment was brief, or if rates sought by plaintiffs incorporate compensation for delayed payment). The Court thus deems it appropriate to compare plaintiffs' requested rates to those in effect at the time the work was performed. As discussed, plaintiffs are entitled to attorneys' rates that fall between 75%-100% of Laffey / USAO Matrix rates, so if an attorney's requested rate exceeds the Laffey or USAO Matrix rate for that year, it shall be capped at the lower rate. (See, e.g. , Ex. A to Pls.' Mot. (showing that Attorney CEM's requested rate exceeds the full Laffey rate from 2012-13 to 2014-15, and that Attorney HMH's requested rate exceeds the full Laffey rate in 2012-13 and 2013-14).)
One final note on rates: the above analysis has focused only on attorneys' rates, not on those sought for paralegals and legal assistants. Here, plaintiffs seek rates that exceed the current USAO rate for their legal assistants and paralegals, and significantly exceed the current USAO rate for two senior paralegals. (See Pls.' Mot. at 8 n.4.) They argue that the extensive experience of their senior paralegals justifies their rates—which are 20% higher than the full USAO rate—and that their "knowledge and expertise play a vital role in the continued success and growth" of the law firm. (See id. ) However, the analysis here involves a comparison to prevailing rates in the community, based on the type of services provided. See 20 U.S.C. § 1415(i)(3)(C). The only relevant evidence that plaintiffs themselves offer (i.e. , the 2015-16 USAO Matrix) demonstrates that they seek far more for their senior paralegals than the prevailing community rate. (See Ex. C to Pls.' Mot. at 1 (taking no account of paralegals' level of experience).) Plaintiffs do not suggest that these paralegals did more complex work than paralegals working on similar IDEA cases, such that an upward departure might be justified. Nor do they offer any explanation as to why their other paralegals and legal assistants should be entitled to rates that exceed the USAO Matrix. Therefore, the Court will award plaintiffs' senior paralegals 85% of the USAO Matrix rate ($131/hour), and their remaining paralegals and legal assistants 75% of the USAO rate ($116/hour).
These rates are commensurate to the rates awarded to plaintiffs' attorneys, which ranged from 71% to 85% of the current USAO rates. They also fall below the historical Laffey rates for previous years' work, so they are reasonably applied throughout the course of this litigation.
II. LIMITED SUCCESS
The District next argues that plaintiffs' fee request should be reduced 20% to reflect their limited success in this litigation. (See Def.'s Opp'n Br. at 11-14.) Plaintiffs in turn propose a 10% reduction on that basis. (See Pls.' Reply Br. at 18.) The parties thus agree on the underlying legal principle—that, because plaintiffs' various claims are interrelated, it is impossible to separate out the work done on unsuccessful claims, and so the Court must "simply reduce the award to account for the limited success." See Hensley v. Eckerhart , 461 U.S. 424, 436–37, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
As the District concedes, plaintiffs "received much of the relief they sought." (See Def.'s Opp'n Br. at 14.) Although the Hearing Officer must still determine the precise amount of compensatory education that Damarcus will receive, it is beyond dispute that the award will be significant: not only was the existing behavioral award of 50 hours deemed insufficient, but Damarcus will also receive compensatory hours for the District's failure to respond to his academic difficulties, and for drastically cutting his speech-language pathology hours despite those difficulties. See Damarcus S. , 190 F.Supp.3d at 54–59, 2016 WL 2993158, at *12–*15. These were both serious failures. The Court's statute-of-limitations ruling also makes it possible that he will receive additional relief on remand for alleged violations that the Hearing Officer erroneously deemed time-barred. See id. at 46–47, 2016 WL 2993158 at *6. On the other side of the scale, the claims that the Court rejected were less significant—if plaintiffs had succeeded on those claims, they would have received far less relief. See, e.g. , id. at 51–53, 2016 WL 2993158 at *9–*10 (plaintiffs' claims regarding IEP baselines, IEP goals, and specificity of IEPs, even if theoretically plausible, failed because they caused no injury); id. at 59–60, 2016 WL 2993158 at *16 (if successful, plaintiffs' Rehabilitation Act claim would only have entitled them to expert witness fees). Therefore, in light of the fact that plaintiffs received a substantial majority of the relief they sought, the Court finds that a 15% reduction of the total fee award is appropriate.
III. BILLING PRACTICES
The District takes issue with three billing practices reflected in plaintiffs' invoice, arguing that the use of these practices warrants a further 25% reduction of the total fee award. (Def.'s Opp'n Br. at 14-17.)
First, it asserts that plaintiffs' invoice calculates time to the eighth of an hour, rather than "the industry-norm of billing to the tenth of an hour," resulting in a less accurate bill. (Id. at 15.) It is certainly true that the award may "be reduced to account for any inaccuracies and overbilling that may have occurred as a result of [plaintiffs'] unacceptable timekeeping habits." See Citizens for Responsibility & Ethics in Washington v. U.S. DOJ , 825 F.Supp.2d 226, 231 (D.D.C.2011) (citing Berkeley v. Home Ins. Co., 68 F.3d 1409, 1419–20 (D.C.Cir.1995) ). However, the only cases cited by the District involved courts' disapproval of billing to quarter-hour increments. See, e.g. , Am. Civil Liberties Union v. U.S. DHS , 810 F.Supp.2d 267, 278–79 (D.D.C.2011) ; A.C. ex rel. Clark v. Dist. of Columbia , 674 F.Supp.2d 149, 157 (D.D.C.2009) ; Blackman v. Dist. of Columbia , 59 F.Supp.2d 37, 44 n. 5 (D.D.C.1999), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 610, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Nor has the Court located any cases in which billing to the eighth of an hour has been disapproved. In fact, courts in this district have expressly approved billing to the sixth of an hour. See Citizens for Responsibility & Ethics in Washington v. U.S. DOJ , 142 F.Supp.3d 1, 10 (D.D.C.2015) ; see also Citizens for Responsibility & Ethics in Washington v. FEC , 66 F.Supp.3d 134, 150 (D.D.C.2014) (noting "a preference for time records that are, at most, in quarter-hour increments"). Thus, there is simply no basis to argue that plaintiffs' billing to the eighth of an hour is improper.
Second, the District argues that rounding errors have inflated plaintiffs' invoice. (Def.'s Opp'n Br. at 15-16.) In particular, it points out that plaintiffs' invoice reflects a total of 621.11 hours worked, when in reality it should be 618.125. (Id. ) This "total hours" figure was not used to calculate the total fee request, and therefore it is wholly irrelevant. Plaintiffs arrived at their fee request by multiplying each individual time entry by the appropriate rate—which the District acknowledges they did correctly (id. at 15)—and then they added the correct individual amounts together. (See Ex. A to Pls.' Mot.) It would have been impossible to calculate the total fee request using the total hours figure, because each attorney charged a different rate and thus the multiplier would have varied. As a result, no purported rounding errors affected plaintiffs' total fee request.
The District also goes to the trouble of asserting an overage of $2.135, which it apparently arrived at by adding fractions of pennies that plaintiffs rounded up. (See Def.'s Opp'n Br. at 16 n.8.) Even if the District had adequately shown how it reached that figure, the Court is concerned with determining a reasonable overall award, not with fractions of pennies that add up to less than the price of a cup of coffee. Cf. Sandifer v. U.S. Steel Corp., ––– U.S. ––––, 134 S.Ct. 870, 880, 187 L.Ed.2d 729 (2014) (discussing the doctrine of "de minimis non curat lex (the law does not take account of trifles)").
Finally, plaintiffs assert that a reduction is warranted due to the invoice's inappropriate use of block billing. (See Def.'s Opp'n Br. at 16-17.) Block billing involves lumping multiple tasks into a single time entry, which can "mak[e] it impossible to evaluate their reasonableness." Role Models Am., Inc. v. Brownlee , 353 F.3d 962, 971 (D.C.Cir.2004). There is no question that plaintiffs' invoice is completely block-billed throughout—it groups all tasks performed by each attorney into a single daily time entry. (See, e.g. , Ex. A to Pls.' Mot. at 49-50 (billing 2.75 hours on fifteen different tasks); id. at 104 (billing two hours on seven different tasks); id. at 119 (billing 7.5 hours on four different tasks); id. at 119-20 (billing 7.875 hours on eight different tasks).) Plaintiffs do not dispute this, but they argue that "there is no prohibition in this Circuit on 'block billing' and the use of this practice does not result in a fee reduction where the descriptions within the time entries are otherwise sufficiently detailed and reasonable." (See Pls.' Reply Br. at 20.) They also state that block billing is the result of the computer program used by McAndrews Law Offices, arguing that this practice is more efficient. (Id. at 22.)Plaintiffs' efforts to defend block billing are unpersuasive, particularly considering that they bear the burden of justifying their fee request. See Covington , 57 F.3d at 1107. Although it is of course true that block billing is not "prohibit[ed]," it is also true that courts often reduce fee awards as a result of it. See, e.g. , Role Models Am., Inc. , 353 F.3d at 971 ; Bennett v. Castro , 74 F.Supp.3d 382, 406 (D.D.C.2014) ; In re InPhonic, Inc. , 674 F.Supp.2d 273, 289 (D.D.C.2009) ; Summers v. Howard Univ. , 2006 WL 751316, at *7 (D.D.C. Mar. 20, 2006). The reason for this is obvious: even if tasks are adequately described, there is simply no way for the Court to assess whether the time spent on each of those tasks was reasonable. See Role Models Am., Inc. , 353 F.3d at 970 (quoting In re Olson , 884 F.2d 1415, 1428 (D.C.Cir.1989) (court must "determine with a high degree of certainty that such hours were actually and reasonably expended"). Where the number of tasks and blocks of time are small, the risk of inaccuracy is also small—if an attorney spends a half-hour emailing opposing counsel and reviewing her response, the Court can be reasonably assured that the time spent was justified. However, if the attorney spends 10.8 hours researching standing, emailing co-counsel, revising a brief, and teleconferencing with the client, the Court lacks that same assurance. Did the research take nine hours? Was it a four-hour teleconference? The Court has no idea.
By the same token, the efficiency of block billing is irrelevant, as is the type of computer system used by plaintiffs' firm—even if plaintiffs' attorneys might benefit from block billing, the Court is concerned here only with their ability to justify their fee request. This particular invoice fails to adequately do that. If it had relied on block billing infrequently, a reduction might not be warranted, see Fitts v. Unum Life Ins. Co. of Am. , 680 F.Supp.2d 38, 42 (D.D.C.2010) (declining a reduction where only a "relatively small fraction" of entries were block-billed), but this entire invoice here is block-billed. As a result, the Court will reduce plaintiffs' total award by an additional 5%.
IV. NON-COMPENSABLE TIME
The District takes issue with numerous entries that it argues are either wholly non-compensable or improperly billed: time related to resolution sessions meetings (RSMs); time spent on plaintiffs' earlier administrative complaints, which they voluntarily withdrew; attorney travel time; and time that the District alleges is related to plaintiffs' ongoing concerns rather than the instant litigation.
A. Resolution Session Meetings
The District argues that plaintiffs should not be reimbursed for time spent preparing for, or participating in, RSMs. (See Def.'s Opp'n Br. at 17-19 (quoting 20 U.S.C. § 1415(i)(3)(D)(iii) ("A meeting conducted pursuant to subsection (f)(1)(B)(i) shall not be considered a meeting convened as a result of an administrative hearing or judicial action or an administrative hearing or judicial action for purposes of [20 U.S.C. § 1415(i)(3) ].")).) In response, plaintiffs have agreed to withdraw their request for time spent participating in the RSMs, but they insist that time spent preparing for those sessions is fully compensable. (See Pls.' Reply Br. at 23-24.)
Section 1415(i)(3)(D)(iii), when read in context with other provisions in that section, prohibits any award for time spent preparing for an RSM. See Howard v. Achievement Preparatory Acad. Pub. Charter Sch. , 2016 WL 1212409, at *14 (D.D.C. Mar. 8, 2016) ; Brandon E. v. Dep't of Educ. , 2008 WL 4602533, at *7 (D.Haw. Oct. 16, 2008) ; see also Mars Area Sch. Dist. v. C.L. , 2015 WL 8207463, at *6 n. 5 (W.D.Pa. Dec. 7, 2015) (citing cases) (noting that it is "well-established" that fees related to RSMs are non-compensable). First, an RSM is a meeting of the IEP team. See 20 U.S.C. § 1415(f)(1)(B)(i) (defining an RSM as "a meeting with the parents and the relevant member or members of the IEP Team"). Next, an award of attorney's fees is prohibited if it "relat[es] to any meeting of the IEP team unless such meeting is convened as a result of an administrative proceeding or judicial action." See id. § 1415(i)(3)(D)(ii). Thus, time spent preparing for an RSM—which "relat[es] to [a] meeting of the IEP Team"—would only be compensable if the exception applies, i.e. , if the RSM was "convened as a result of an administrative proceeding or judicial action." See id. However, the very next provision makes clear that this exception does not apply to an RSM, which "shall not be considered ... a meeting convened as a result of an administrative hearing or judicial action." See id. § 1415(i)(3)(D)(iii)(I).
The Court recognizes that this issue is not entirely clear-cut. See Y.B. v. Williamson Cty. Bd. of Educ. , 2009 WL 4061311, at *25 (M.D.Tenn. Nov. 20, 2009). Even acknowledging the minor statutory inconsistency—Section 1415(i)(3)(D)(ii) uses the phrase "convened as a result of an administrative proceeding ," while Section 1415(i)(3)(D)(iii) says "convened as a result of an administrative hearing "—the Court concludes that it is simply a result of imprecise drafting. Cf. G.L. v. Ligonier Valley School District Authority , 802 F.3d 601, 624 (3d Cir.2015) (finding that an inconsistency in another part of Section 1415 was the result of a drafting error). The linguistic structure of the exception in (D)(ii) is otherwise identical to the structure in (D)(iii), giving rise to a strong inference that the two provisions were meant to be read in tandem. After all, standing alone, the RSM provision in (D)(iii) has no apparent effect—it is only given meaning if an RSM is an IEP meeting for which attorneys cannot recover for. There is simply no other way to explain its presence in a subsection entitled "Prohibition of attorneys' fees and related costs for certain services." See 20 U.S.C. § 1415(i)(3)(D)(iii).
Therefore, plaintiffs' request for RSM preparation fees is denied.
Plaintiffs note that their RSM preparation fees are block billed together with unrelated, compensable fees. (See Pls.' Reply Br. at 24.) This is yet another drawback of block billing. See Role Models Am., Inc., 353 F.3d at 971. The Court will thus approximate the amount of time in those block entries that remain compensable and award only those fees.
B. Time Spent on "Earlier Cases"
In May 2013 and January 2014, plaintiffs filed and later voluntarily withdrew two administrative complaints against the District, prior to the December 2014 filing of the complaint at issue here. See Damarcus S. , 190 F.Supp.3d at 40–42, 2016 WL 2993158, at *2 (D.D.C. May 23, 2016). As the Court previously noted, the May 2013 complaint raised "basically the same issues" as those raised here, while the January 2014 complaint sought an independent evaluation for which plaintiffs were ultimately awarded reimbursement here. Id. at 41–42, 58–59, 2016 WL 2993158 at *2, *15. The District argues that plaintiffs are not entitled to any reimbursement for work done prior to November 6, 2014, because that work related to "earlier cases" in which plaintiffs were not the prevailing party. (See Def.'s Opp'n Br. at 19-20.) Plaintiffs respond that these do not represent different cases at all, but instead are intertwined with the current litigation, such that full reimbursement is appropriate. (See Pls.' Reply Br. at 24-25.)
Although the District is correct that plaintiffs were not prevailing parties in their earlier complaints, that is not the relevant issue here. The issue is whether the work performed prior to November 6, 2014 is reasonably compensable as a result of their success in this litigation. See 20 U.S.C. § 1415 (i)(3)(B)(i). The District does not dispute the interrelatedness of the issues raised in the withdrawn complaints and those raised here, nor could it. Thus, there is no question that much of that earlier work contributed to plaintiffs' success in this litigation, and as a result, the District's argument for a full reduction fails. Nevertheless, the Court finds that plaintiffs are not entitled to full reimbursement, given that the withdrawal of those complaints prolonged the overall litigation by roughly nineteen months. Despite plaintiffs' argument that "[a]ll of the work that went into the initial Due Process complaints was directly relevant to this litigation" (Pls.' Reply. Br. at 25), there is no question that this nineteen-month delay created much additional work, even if it was technically "relevant" to this litigation. (See, e.g. , Ex. A to Pls.' Mot. at 23 (charges for preparation of second complaint); id. at 26 (charges related to Prehearing Conference that was later rendered unnecessary by withdrawal).) To account for this self-imposed delay, which is not reasonably charged to the District, the Court will reduce plaintiffs' pre-November 6, 2014 award by 20%.
C. Attorney Travel Time
Plaintiffs concede that their fee request improperly bills attorney travel time at a full rate, as opposed to the proper 50% rate. (See Pls.' Reply Br. at 25; see also McAllister v. Dist. of Columbia , 21 F.Supp.3d 94, 106 (D.D.C.2014) ("[I]n this Circuit, travel time is compensated at half of the attorney's rate."). Plaintiffs' award will be reduced accordingly.
D. Unrelated Time
The District challenges numerous charges incurred after February 17, 2016, which it argues are unrelated to the instant litigation and therefore non-compensable. (See Def.'s Opp'n Br. at 22-23 & Table 3.) Plaintiffs argue that these entries are clearly related, because they concern
(a) counsel's efforts to implement the Hearing Officer's and this Court's award of compensatory education, including through communications with counsel for the District; (b) preparation for the upcoming Due Process hearing on remand ordered by this Court; (c) efforts to settle the instant litigation; or (d) the instant federal court proceedings.
(Pls.' Reply Br. at 27.)
Time entries that fall into the latter two categories are compensable at the rates already approved by the Court. However, the Court's determination of reasonable rates took into account only the complexity of the litigation to the point of judgment (i.e. , May 23, 2016), and those are not directly applicable to the former two categories. The Court is not inclined to address in piecemeal fashion the fees performed on remand and in implementing relief: the process is still ongoing, and, at this juncture, the Court cannot determine the complexity of the legal work involved.
Moreover, the invoice plainly reflects that certain entries fall outside of the four categories listed by plaintiffs, and thus, they are not compensable. It is unclear, for instance, how work related to future IEP meetings; Damarcus's current mental health and residence; "alerts;" "Department of Revenue check[s];" or Damarcus's current IEP, FBA, evaluations, or medical referrals have anything to do with this litigation. (See Ex. A to Pls.' Mot. at 96-118.) Again, these non-compensable entries have been block-billed with compensable entries. Therefore, as with the time plaintiffs claimed for RSMs, the Court will approximate the necessary reduction of each blocked entry.
V. OVER-STAFFING
Finally, in one short paragraph, the District argues that plaintiffs overstaffed the case. (See Def.'s Opp'n Br. at 21.) It notes that five senior attorneys and three junior attorneys worked on the case over the course of the litigation, and that at times "two professionals perform[ed] the same task." (Id. at 21 & n. 14.) However, a look at the "duplicative" entries flagged by the District reveals nothing improper. For instance, on June 11, 2014, the task that two professionals performed was communicating with one another. (See Ex. A to Pls.' Mot. at 34.) Of course, both attorneys could properly bill for that time. And regardless of the total number of attorneys that touched the case, the invoice reflects that a single attorney was responsible for the majority of charges at any one point in time, something the District itself acknowledges. (See Def.'s Opp'n Br. at 21 n.15.) The District's argument for a reduction on this basis is not well-taken.
CONCLUSION
Accordingly, plaintiffs' motion for attorney's fees is GRANTED IN PART and DENIED IN PART . A separate Order accompanies this Memorandum Opinion.
Attachment