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holding that “fee litigation is not complex federal litigation and does not necessarily entail specialized expertise and experience” and reducing counsel's hourly rate accordingly
Summary of this case from Garvin v. Gov't of D.C.Opinion
Civil Action No. 02-373 (AK).
April 18, 2005
MEMORANDUM OPINION
Pending before the Court is Plaintiffs' Motion for Attorneys' Fees and Costs [61] ("Motion") requesting an award of attorneys' fees and costs incurred in seeking reimbursement of attorneys' fees and expert witness costs in connection with the prosecution of this lawsuit, the so-called "fees for fees." Upon consideration of the memoranda and exhibits submitted in connection with this Motion, the opposition thereto, and Plaintiffs' reply, for the reasons set forth below, Plaintiffs' Motion is granted in part and denied in part. An appropriate Order accompanies this Memorandum Opinion.
I. FACTUAL BACKGROUND
This is an action to recover attorneys' fees under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-87. On February 26, 2002, Plaintiffs filed their Complaint, which was an aggregation of 97 individual claims by 85 student Plaintiffs who asserted that they prevailed in administrative proceedings under IDEA, either by virtue of favorable administrative decisions or through voluntary settlement agreements with the District of Columbia Public Schools ("DCPS"). Plaintiffs sought approximately $356,712 in attorneys' fees and costs, under 20 U.S.C. § 1415(i)(3)(B), which represented the difference between Plaintiffs' claim for entitlement to $636,297 and the $279,585 paid by DCPS to the Plaintiffs.
On March 15, 2002, the Defendants filed a Motion to Dismiss, or for a More Definite Statement. Following an April 18, 2002 hearing, the trial court denied the Motion to Dismiss but ordered Plaintiffs to provide additional information to the Defendants. Plaintiffs provided the supplemental information on April 24, 2002. On May 8, 2002, Defendants filed a [second] Motion to Dismiss Plaintiffs' Complaint pursuant to Fed.R.Civ.P. 12(b)(6).
United States District Court Judge Ellen Segal Huvelle was the trial court prior to the parties consenting to proceed before the undersigned Magistrate Judge for all purposes, including trial, on April 29, 2002.
On August 15, 2002, this Court held a hearing on Defendants' Motion to Dismiss and on September 20, 2002, the Court issued a Memorandum Opinion and Order, denying in part Defendants' Motion to Dismiss, deferring it in part and granting it in part. The Court dismissed without prejudice fee claims by three Plaintiffs, deferred consideration of sixteen claims until October 2002, and dismissed thirty-three claims that were resolved through settlement agreements.
These three claims were later dismissed with prejudice after Plaintiffs unsuccessfully moved to amend their Complaint to include these claims.
Half of these claims were later dismissed and half were allowed to stand.
Plaintiffs previously moved to dismiss the case regarding two Plaintiffs.
The Court next considered Plaintiffs' Motion for Summary Judgment [15] relating to the remaining 57 claims by 52 Plaintiffs, and a total of $233,696.26 in unpaid fees and costs. With the exception of one claim, which was dismissed by the Court, Defendants did not contest Plaintiffs' prevailing party status. Defendants did however proffer that a statutory fee cap limited the amount of fees they could pay, and they further contested some of the work billed by and billing practices of Plaintiffs' attorneys. This Court granted attorneys' fees and costs in the amount of $146,056.79. See June 24, 2003 Order [56]. Defendants subsequently made fee payments in an amount equivalent to the statutory cap amount. Plaintiffs contested the Defendants' alleged lack of compliance with the Court's Order [56] by filing a motion to show cause why Defendants should not be held in contempt. That motion to show cause was denied by this Court in a Memorandum Opinion and Order dated February 3, 2005 [87, 88].
Plaintiffs now move this Court, pursuant to Rule 54(d)(2) of the Federal Rules of Civil Procedure, Rule 215 of the Local Civil Rules of this Court, and 20 U.S.C. § 1415(i)(3), to order reimbursement of costs and expenses in the amount of $57,278.28, which they incurred in pursuing their reimbursement of [prior awarded] attorneys' fees and expert fee costs.
II. LEGAL STANDARD
Fed.R.Civ.P. 54 states in relevant part that "[c]laims for attorneys fees and related nontaxable expenses shall be made by motion" and further, such motion "must specify the judgment and the statute, rule or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought." Fed.R.Civ.P. 54(d)(2).
Under the IDEA, plaintiffs are entitled to reimbursement of "reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." See 20 U.S.C. § 1415 (i)(3)(B); see also Smith v. Roher, 954 F. Supp. 359 (D.D.C. 1997). Section 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 . . ." Section 1415 (i)(3)(D) sets out a number of prohibitions on the award of attorneys' fees and related costs, while 1415(i)(3)(F) contains factors supporting a reduced fee award.
III. ANALYSIS A. Prevailing Party
Plaintiffs assert that they are the prevailing parties because this Court granted their motion for summary judgment with regard to the claims that survived Defendants' motion to dismiss. Memorandum of Points and Authorities in support of Motion ("Memorandum" at 2). Defendants do not contest Plaintiffs' status as prevailing parties.
B. Reasonableness of Hourly Rates and Number of Hours
Reasonable fees are determined by multiplying the number of hours by reasonable hourly rates, in order to calculate a lodestar number. Hensley v. Eckerhard, 461 U.S. 424, 433 (1983); Blum v. Stenson, 465 U.S. 886, 888 (1984). The applicable hourly rates "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). See also Bailey v. District of Columbia, 839 F. Supp. 888 (D.D.C. 1993) (where plaintiffs' counsel was entitled to an award of his fees at the prevailing market rate for his work done on an IDEA case and both sides presented evidence of the prevailing market rate in the community).
"A reasonable fee is one that `is adequate to attract competent counsel, but which does not produce windfalls to attorneys.'" Blum v. Stenson, 465 U.S. at 893-94 (quote omitted). While the Court is empowered to exercise its discretion in determining the fee amount, the plaintiff still bears the burden of establishing all elements of the requested fee award, including entitlement to an award, documentation of appropriate hours, and justifications of the reasonableness of billing. Blum, 465 U.S. at 896 n. 11. See also Covington v. District of Columbia, 57 F. 3d 1101, 1107 (D.C. Cir. 1995), cert. denied, 516 U.S. 1115 (1996) (A fee applicant's burden in establishing a reasonable hourly rate entails a showing of at least three elements: counsel's billing practices; the attorney's skill, experience and reputation; and the prevailing market rates in the community.)
Plaintiffs assert that their counsel's hourly billing rates, set forth in the Declaration of Counsel, attached to the Motion, are consistent with the market rates in this community for special education cases, and have routinely been found to be reasonable by this Court. See, i.e., Eby v. District of Columbia, C.A. No. 93-1826 (D.D.C. Memorandum Order, July 15, 1996); Holland v. D.C., C.A. No. 93-1370 (D.D.C. Memorandum Order, August 28, 1996); Ceja v. D.C., C.A. No. 94-2529 (D.D.C. Memorandum Order, February 22, 1996); Applebaum v. D.C., C.A. No. 94-2517 (D.D.C. Memorandum Order, March 19, 1996); Spilsbury v. D.C., C.A. No. 02-374 (D.D.C. Memorandum Order, April 24, 2002); Lipow v. District of Columbia, C.A. No. 01-1772 (D.D.C. Memorandum Order, May 21, 2003). See also Clegg v. D.C., C.A. No. 00-2930 (D.D.C. Consent Decree, Feb. 20, 2002) (awarding attorneys' fees to another special education law firm at the hourly rate of $361.00).
Plaintiffs' counsel's hourly rates are as follows: Matthew Bogin-$325; Michael Eig-$300; Hailey Iseman-$200; and Adam Finklestein — $125 [administrative staff].
The fee applicant bears the burden of "documenting the appropriate hours expended and hourly rates . . . and should exercise `billing judgment' . . ." Hensley, 461 U.S. at 437. Plaintiffs' counsel alleges that, in submitting this fee request, it has exercised "billing judgment" and properly documented the time expended. Plaintiffs argue that counsel's hourly rates . . . are consistent with the market rates in this community for special education cases." Memorandum at 2. Plaintiffs further assert that "the fees sought are the customary fees that [the] firm charges for like work" noting that "counsel is preeminent in this area of law and has been recognized by this Court as a `leading [IDEA] firm in the District.'" Memorandum at 2-3, citing Kattan v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993). Moreover, Plaintiffs contend that this Court has previously observed that plaintiffs' counsel "waste[s] little effort . . . [and] staff their cases in a reasonable and efficient manner." Moore v. D.C., 674 F. Supp. 901, 906 (D.D.C. 1987), aff'd en banc, 907 F. 2d 165 (D.C. Cir. 1990), cert. denied, 498 U.S. 998 (1990). Consistent with Eby, Holland, and the other cases cited by Plaintiffs, it is the position of this Court that Plaintiffs' counsel has demonstrated that it has both expertise and experience in the area of IDEA litigation. Applying the standard set forth in Hensley and Blum, the Court finds that the time incurred by Plaintiffs' counsel in seeking reimbursement of legal fees and expert witness costs is reasonable, as modified by the partial exclusions and reductions addressed in the following sections of this Memorandum Opinion.
Counsel asserts that the "charges reflected in the time records are `billable' [and do] not include activities that entailed only brief amounts of time [and furthermore, he] believe[s] that all the time for which [counsel] seek[s] fees was `productive' and necessary in order for the plaintiffs to prevail." Declaration of Michael J. Eig at ¶ 5.
The Court notes that because Plaintiffs' action was treated as a class action, counsel's billing entries relate to the pursuit of litigation to recover fees and costs on behalf of all Plaintiffs even though some Plaintiffs were subsequently dismissed from the litigation.
The Court does however find that the billing rates of Plaintiffs' two lead attorneys and their administrative assistant should be adjusted downward to reflect the nature of the work performed in connection with this fee request. Specifically, the Court notes that the majority of Plaintiffs in this case have already prevailed in their prosecution of administrative complaints and the underlying lawsuit, both based on Plaintiffs' IDEA claims. This Court subsequently awarded Plaintiffs their attorneys' fees [and expert fee costs], reflecting counsel's IDEA work and taking into account counsel's specialized knowledge and experience. This Motion now requests additional fees and costs incurred in seeking those fees and costs. This Court finds that fee litigation is not complex federal litigation and does not necessarily entail specialized expertise and experience. Therefore, the Court concludes that counsel's billing rates should be adjusted accordingly to reflect the type of work performed. Mr. Bogin's hourly billing rate will thus be adjusted from $320 to $250. Mr. Eig's hourly billing rate will be adjusted from $300 to $250. Regarding the administrative staff charges incurred by Adam Finklestein, the Court finds that an hourly rate of $125 for work such as copying and delivery of documents is exorbitant and accordingly, Mr. Finklestein's hourly rate will be cut to $75 per hour. Ms. Iseman's hourly rate remains unchanged at $200 per hour.
See generally Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), affirmed in part and reversed in part, 746 F.2d 4 (D.C. Cir. 1984).
C. Defendants' Challenges to Plaintiffs' Fee Request 1. Reduction of Total Amount based on Plaintiffs' Success Rate
Defendants contest the amount of fees and costs claimed by Plaintiffs' counsel, arguing that where there is only partial success in the prosecution of claims, subsequent attorneys' fee claims should be reduced accordingly. Opposition at 1, citing Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) ("[W]here the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.") See also McDowell v. District of Columbia, 2001 U.S. Dist. LEXIS 8114 (D.D.C. 2001) (fees reduced by one third in light of partial success); Gaskins v. District of Columbia, C.A. No. 00-592 (D.D.C. Memorandum and Order June 4, 2001).
Defendants acknowledge that quantifying the extent of a plaintiff's success for purposes of adjusting fees may be problematic. See, e.g., Santiago v. Mercado, 2001 U.S. Dist. LEXIS 20630 *7 (D.P.R. 2001) (When related legal theories are pursued, based on a common core of facts, "it will often be difficult to allocate the time [an] attorney has spent on the different theories.") Defendant contends that, in the instant case, "the appropriate benchmark for such an overall adjustment is the amount of actual recovery vis-a-vis the amount claimed in the complaint." Opposition at 7. Defendant accordingly concludes that the reimbursement sought in the Motion should be reduced by 59% to correspond to the Plaintiffs' success in recovery of 41% of their initial claims. Id. at 3. Defendants argue that the attorneys' fee request should be reduced in direct proportion to the percentage of fees and costs, which were awarded to Plaintiffs.
Plaintiffs acknowledge that the Court dismissed a number of claims and they withdrew others but they assert that they prevailed on much more than forty-one percent (41%) of the claims set forth in the Complaint based on Defendants' "incremental payments on many of the [P]laintiffs' claims, which [they] were then able to remove or deduct from the amount sought through the litigation." Reply at 1-2. Plaintiffs thus argue that the requested fees should not be reduced particularly because "[i]t required the same amount of work for plaintiffs to achieve success on many of the claims as it would have to achieve success on all of them." Id. at 3. Plaintiffs further assert that, in light of the "factual context" of this case; i.e., Defendants' repeated request for documentation substantiating Plaintiffs' claims as well as their refusal to make even partial payments prior to the commencement of this lawsuit, a reduction of fees is unwarranted. See Reply at 2.
The Court finds that the fees charged by counsel should not be reduced in proportion to Plaintiffs' purported "success rate" [as measured by the Defendants] because: 1) the work done by Plaintiffs benefitted all Plaintiffs as a group; 2) the successful Plaintiffs' claims cannot easily be culled out from the claims of Plaintiffs who were dismissed from this litigation; 3) many of the Plaintiffs are indisputably prevailing parties; and 4) Defendants' measurement of Plaintiffs' success rate does not take into account the additional payments of fees and costs made by Defendants during the pendency of the litigation. The Court now turns to Defendants' specific challenges to the Plaintiffs' fee charges.
2. Contested Time Entries
Defendants contest the adequacy of the fee request submitted by Plaintiffs' counsel arguing that: 1) there is no justification for charges for Adam Finklestein; 2) charges for travel and duplicative activities should be disallowed; and, 3) many of the charge descriptions are impermissibly vague.
Defendants conclude that these "inadequacies" should result in the fee request being reduced by approximately $22,000.
With respect to argument number one above, Defendants object to any payment of fees to compensate them for work performed by Mr. Finkelstein because Plaintiffs did not identify Mr. Finklestein or the role that he played in this litigation. Opposition at 4-5. Plaintiffs sufficiently identify Mr. Finklestein and explain his role in their Reply, at 3-4. Defendants' objection is accordingly moot and the Court, in Section III.B. herein, has already ruled that Mr. Finklestein's hourly rate should be reduced to $75, to reflect the type of work performed by him.
Addressing the travel costs noted in argument number two above, Defendants cite Cruz v. Local Union No. 3, Int'l Brotherhood of Elec. Workers, 34 F.3d 1148 (2d Cir. 1994) (the district court may adjust the rate at which travel time is compensated); Smith v. Freeman, 921 F.2d 1120 (10th Cir. 1990) (an attorney's travel time may be compensated at a reduced hourly rate); In re Washington Public Power Supply Sys. Sec. Litig., 19 F.3d 1291 (9th Cir. 1994) (district court reduction by half of all attorneys' travel time affirmed). Plaintiffs respond by citing the Rules and Guidelines for Determining Lodestar Attorneys' Fees in Civil Rights and Discrimination Cases, Section 2(f) ("Up to 2 hours of travel time (each way and each day) to and from a Court appearance, deposition, witness interview, or similar proceeding that cannot be devoted to substantive work may be charged at the lawyer's hourly rate.") Reply at 4.
Reviewing counsel's billing records, the Court finds that there are 4 entries, each dated April 18, 2002 [Ms. Iseman has two entries], relating in part to counsel's travel to and in part to attendance at a hearing on Defendant's motion to dismiss. Pursuant to the billing sheets, the time billed by the three attorneys regarding the April 18, 2002 motion hearing is as follows: Haylie Iseman — 2 hours, 18 minutes; Michael Eig — 3 hours, 30 minutes; Matthew Bodin — 1 hour, 36 minutes. The Court finds that these time entries totaling 7 hours, 24 minutes should be reduced by 50% on grounds that Plaintiffs' counsel herein are attorneys who are very experienced in this field of law and accordingly, it was unnecessary for all three counsel to travel to and attend the hearing. Employing the billing rates previously set forth by the Court, and reducing the charges by half, the total charge for the four aforementioned entries now equals $967.50.
With respect to argument number three above, the Court, after reviewing counsel's billing records, notes that many of counsel's billing entries lack the requisite specificity and do not contain a sufficient narrative description to enable the Court to evaluate what work was performed; i.e., entries that read "call with client re: status" [Iseman, 19 time entries totaling 4.4 hours] and "Conference and follow up; File review" [Eig, 1/3/2002, 3:30 hours]. Furthermore, this Court additionally finds excessive the number of conferences among counsel to discuss this case [Iseman time entries dated 1/3/2000; 1/10/2002; 2/11/2002; 2/26/2002; 3/25/2002; 3/26/2002; 4/17/2002; 5/6/2002; 5/24/2002; 5/31/2002; 7/30/2002; 8/15/2002; 9/17/2002; 10/10/2002; 10/16/2002; 10/17/2002; 10/18/2002; 11/13/2002; 2/20/2003; 6/24/2003; 7/9/2003; and 8/5/2003.] The Court concludes that because some of counsel's time entries are impermissibly vague and/or excessive, the total fees charged [after making adjustments in billing rates] should be adjusted downward by 15 percent [which is a reduction of $7,312.13], with the proviso that the fees for counsel's travel to and attendance at the April 18, 2002 hearing will not be further reduced. All cost charges [$1, 073.28] will also be allowed.
The Court notes that there are some inconsistencies in billing among counsel for conferences. For example, Mr. Bogin billed for a conference with co-counsel [part of an entry for one hour, eighteeen minutes] on 5/29/2002, but the Iseman and Eig charges are dated 5/31/2002, and bill for 24 minutes [Iseman] and a portion of two hours [Eig].