UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNICE JACKSON et al., : : Plaintiffs, : Civil Action No.: 07-0138 (RMU) : v. : Document Nos.: 48, 49 : DISTRICT OF COLUMBIA, : : Defendants. :

MEMORANDUM OPINION

ADOPTING IN PART AND MODIFYING IN PART MAGISTRATE JUDGE FACCIOLA’S REPORT AND RECOMMENDATION; GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES

I. INTRODUCTION

This matter is before the court upon the defendant’s objections to the Report and

Recommendation (“Report”) issued by Magistrate Judge John M. Facciola on February 26, 2009.

The plaintiffs brought suit under the Individuals with Disabilities Education and Improvement

Act (“IDEA”),

et seq., following two settlement agreements and thirty-six

IDEA due process hearings. Magistrate Judge Facciola recommended that the court grant in part

and deny in part the plaintiffs’ petition, and the defendant subsequently filed objections to the

Report in accordance with Local Civil Rule 72.3. The defendant objects to the Report on four

grounds, only one of which the court fully sustains, as discussed in more detail below. The court

adopts the Report in all other respects.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiffs are thirty-two minor children, their guardians and court-appointed

educational advocates. Report at 1. The plaintiffs prevailed in thirty-six due process hearings and reached two settlement agreements with the defendant.

Following these due process

hearings, the plaintiffs filed a petition for attorneys’ fees in the amount of $64,886.00, pursuant

to Federal Rule of Civil Procedure 54(d), Local Civil Rule 54.2, and

(i)(3)(B).

Pls.’ Pet. for Att’ys’ Fees (“Pls.’ Pet.”) at 1-2. The court then referred the plaintiffs’ petition to

Magistrate Judge Facciola to make a recommendation on whether they were entitled to

attorneys’ fees and, if so, the proper measure for such fees. Report at 1. On February 26, 2009,

Magistrate Judge Facciola issued the Report, recommending that the court grant in part and deny

in part the plaintiffs’ petition for fees.

The defendant subsequently filed objections to the

Report on four grounds: (1) attorney Abdus-Shahid is not entitled to any fees; (2) the individual

identified as “JMS” is not entitled to any fees; (3) the Laffey Matrix is not applicable to this case;

and (4) the educational advocate for plaintiff N.R. may not recover fees. Def.’s Objections to

Report and Recommendation (“Def.’s Objs.”) at 1. The plaintiffs filed a response to the

defendant’s objections. Pls.’ Opp’n to Def.’s Objs. (“Pls.’ Opp’n”). The court now turns to

those submissions. 1

III. ANALYSIS

A. Legal Standard for Attorneys’ Fees and Costs under IDEA

Federal Rule of Civil Procedure 54(d) requires a party seeking attorneys’ fees and

“related non-taxable expenses” to file a motion with the court. FED. R. CIV. P. 54(d)(2)(A). The

motion “must specify the judgment and the statute, rule, or other grounds entitling the moving

party to the award.”

It must also state the amount or provide a fair amount of the award

1 When a party files written objections to any part of the magistrate judge’s recommendation with respect to a dispositive motion, the court considers de novo those portions of the recommendation to which objections have been made, and “may accept, reject, or modify the recommended disposition.” FED. R. CIV. P. 72(b)(3).

2 sought. Id.; see also Herbin v. District of Columbia,

, at *2 (D.D.C. Apr. 4,

2006).

The IDEA allows the parents of a disabled child to recover “reasonable attorneys’ fees”

so long as they are the “prevailing party.”

(i)(3)(B). A court’s determination of

the appropriate attorneys’ fees, in other words, is based on a two-step inquiry. First, the court

must determine whether the party seeking attorneys’ fees is the prevailing party.

A

prevailing party “is one who has been awarded some relief by a court.” Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Res.,

(2001); Alegria v.

District of Columbia,

(D.C. Cir. 2004) (applying Buckhannon in the IDEA

context).

Second, the court must determine whether the attorneys’ fees sought are reasonable.

(i)(3)(B). “The most useful starting point for determining the amount of a

reasonable fee is the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Hensley v. Eckerhart,

(1983); see also Blackman v.

Dist. of Columbia,

(D.D.C. 2005) (applying Hensley in the IDEA

context). The plaintiff bears the burden of demonstrating that the number of hours spent on a

particular task is reasonable. Holbrook v. District of Columbia,

(D.D.C.

2004). The plaintiff may satisfy this burden “by submitting an invoice that is sufficiently

detailed to ‘permit the District Court to make an independent determination whether or not the

hours claimed are justified.’”

(citing Nat’l Ass’n of Concerned Veterans v. Sec’y of Def.,

(D.C. Cir. 1982)). “Once the plaintiff has provided such information, a

presumption arises that the number of hours billed is reasonable and the burden shifts to the

defendants to rebut the plaintiff’s showing of reasonable hours.” Herbin,

, at

3 *5. With respect to the reasonable hourly rate, attorneys’ fees in IDEA actions in the District of

Columbia are reasonable if they conform to the Laffey Matrix 1 created by the United States

Attorneys’ Office. Lopez v. District of Columbia,

(D.D.C. 2005) (citing

Kaseman v. District of Columbia,

(D.D.C. 2004)); see also

(i)(3)(C) (stating that attorneys’ fees awards “shall be based on rates prevailing in the

community in which the action or proceeding arose for the kind and quality of services

furnished”).

The court notes that the D.C. Appropriations Act of 2005 caps the District of Columbia’s

payment of IDEA attorneys’ fees at $4,000 per action.

Stat. 1322

(2004); see also Herbin,

, at *2. Although the District of Columbia is limited

in the award it may pay, the court is not bound by a fee cap and may award attorneys’ fees and

costs greater than the fee cap. Calloway v. District of Columbia,

(D.C. Cir. 2000).

The court, however, “cannot order the defendants to violate an act of Congress to pay the total

award.” Scorah v. District of Columbia, Civ. No. 03-0160, Mem. Op. (Dec. 17, 2004).

B. The Laffey Matrix is the Proper Means to Determine Fee Awards

The defendant argues that the Laffey Matrix is not applicable to simple IDEA cases, such

as the one in the present case. Def.’s Objs. at 5. Instead, the defendant contends that the District

of Columbia Public Schools fee schedule is the “appropriate measure of [] prevailing rates.”

The plaintiff, however, insists that the Laffey Matrix is indeed applicable to IDEA cases, as it

should apply to “all cases in which a ‘fee shifting’ statute permits the prevailing party to recover

reasonable attorneys’ fees.” Pls.’ Opp’n at 2.

1 The Laffey Matrix is “a schedule of charges based on years of experience.” Herbin v. District of Columbia,

, at *4 (D.D.C. Apr. 4, 2006).

4 Courts in this district have routinely held that attorneys’ fees in IDEA actions are

reasonable if they conform to the Laffey Matrix. Bush ex rel. A.H. v. District of Columbia,

(D.D.C. 2008) (holding that the Laffey Matrix is to be used to determine

reasonable rates for attorneys’ fees in IDEA actions); Alfonso v. District of Columbia,

(D.D.C. 2006) (same); Laster v. District of Columbia,

, at *2

(D.D.C. July 25, 2006) (same). Because the Laffey Matrix represents the prevailing rates in the

District of Columbia, it is a proper measure to determine fee awards. See Lopez,

; see also

(i)(3)(C). The court, therefore, accepts Magistrate Judge

Facciola’s use of the Laffey Matrix in determining the fee awards in this case.

C. Abdus-Shahid is Entitled to a Reduced Fee Award

The defendant contends that Abdus-Shahid is not entitled to any fee recovery as the

plaintiffs fail to provide any information with respect to his professional experience and hourly

rate. Def.’s Objs. at 1. Accordingly, the defendant argues that Magistrate Judge Facciola erred

in recommending a twenty-five percent rate reduction without an adequate evidentiary basis.

. The plaintiffs, on the other hand, agree with Magistrate Judge Facciola’s recommendation

of a twenty-five percent hourly rate reduction, contending that the “failure to provide

justification for Abdus-Shadid’s [sic] hourly rate was inadvertent error” which should not

prevent recovery of fees. Pls.’ Opp’n at 1.

The plaintiffs bear the burden of establishing all elements of the requested fee award,

including the reasonableness of the hourly rate based on the attorney’s experience, skill and

reputation. See Blum v. Stenson,

, 896 n.11 (1984) (holding that the petitioner for

an award of attorneys’ fees bears the responsibility of showing the reasonableness of the

requested rates). The plaintiffs admit that their failure to offer evidence of Abdus-Shahid’s

5 qualifications was “inadvertent error,” but fail to correct it in their response to the defendant’s

objections. See Pls.’ Opp’n at 1. This Circuit has previously held that a failure to supply any

information as to an attorney’s qualifications constitutes a failure by the petitioner to carry his

burden, resulting in a reduction in the fee award. See Role Models America, Inc. v. Brownlee,

(D.C. Cir. 2004) (holding that had statutory caps not already significantly

reduced the hourly rates, a twenty-five percent reduction would have been appropriate based on

the petitioner’s failure to provide information and qualifications for the attorneys requesting fee

awards); see also In re North,

(D.C. Cir. 1995) (holding that a ten percent

reduction in the requested hourly rates is appropriate if a party fails to provide any evidence of

“the qualifications of particular professionals”). Because there is a sufficient evidentiary basis

for the legal work done by Abdus-Shahid, Pls.’ Mot., Attach. A, Part II at 39-40 & Part V at 3-7,

but an inadequate explanation of his experience and qualifications, the court reduces Abdus-

Shahid’s fees to the hourly rate of a first year associate according to the Laffey Matrix, U.S.

Attorney’s Office for the District of Columbia, Laffey Matrix 2003-2009,

http://www.usdoj.gov/usao/dc/Divisions/Civil_Division/Laffey_Matrix_7.htm. As the fee

awarded is greater than the statutory cap – $4,000.00 per claim – the recovery remains

unchanged.

D. The Individual Identified as JMS is Entitled to a Reduced Fee Award

Because the plaintiffs provided no information regarding experience or qualifications of

the individual identified as JMS, the defendant claims that there is no basis for awarding him or

her attorneys’ fees. Def.’s Objs. at 3. The defendant argues that Magistrate Judge Facciola’s

reduction of JMS’s hourly rate to that of a paralegal is too generous as JMS has not been

identified and performed “purely clerical functions” which should not count toward the recovery

6 of attorneys’ fees. Id. at 3-4. The plaintiffs state that the absence of an explanation as to JMS’s

qualifications and experience was an “inadvertent error” and agree with Magistrate Judge

Facciola’s recommendation of a reduced billing rate. Pls.’ Opp’n. at 2. The plaintiffs also

contend that the clerical tasks performed by JMS should not be denied in any fee recovery as the

plaintiffs’ counsel is a small firm that would be “unfairly punish[ed]” as a result of its minimal

resources. Id.

As described in the billing records, the plaintiffs characterize one-half hours of JMS’s

work as “create file; made copies; faxed document.” See Pls.’ Pet., Attach. A, Part IV at 45.

Because these tasks are clerical in nature, they cannot be included in attorneys’ fees. See

Michigan v. U.S. EPA,

(D.C. Cir. 2001) (holding that “purely clerical

tasks” are not reimbursable through attorneys’ fees “because they ought to be considered part of

normal administrative overhead”). Therefore, the hours billed by JMS should be reduced by

one-half hours for a total of four hours, as the remaining time billed is not for clerical work. Pls.’

Pet., Attach. A, Part IV at 45-46 (billing for drafting letters and complaints and discussing case

strategy).

It is well established that a party may recover for paralegals’ fees. See Richlin Sec. Serv.

Co. v. Chertoff,

(2008) (stating that the recovery of attorneys’ fees

includes paralegals’ fees at prevailing market rates). The court accepts Magistrate Judge

Facciola’s recommendation of reducing JMS’s recovery rate to that of a paralegal under the

Laffey Matrix and further imposes a twenty-five percent reduction in those fees. See

(holding

that a twenty-five percent reduction in fees is appropriate where the plaintiff has failed to provide

justification for non-attorneys’ requested rates). Therefore, the court awards fees to JMS at the

Laffey Matrix rate for a paralegal of $110 per hour, reduced by twenty-five percent to $82.50 per

7 hour for four hours of work, for a total of $330. But because the plaintiff’s recovery remains

over the statutory cap, the recovery does not change.

E. The Educational Advocate for N.R. May Not Recover Fees

The defendant highlights in its objections that the Report concludes that the educational

advocates for a number of the plaintiffs – including N.R.– could not recover fees, but,

nevertheless, awards N.R. $205.00. Def.’s Objs. at 5. The plaintiffs do not address this

objection in their opposition. See Pls.’ Opp’n. After reviewing the Report, the court notes that

the defendant is correct in stating that the Report denies recovery for court-appointed educational

advocates, expressly referencing the case of N.R. Report at 6. The Report then recommends that

“the plaintiffs’ petition for attorneys’ fees on behalf of these 14 parties should be denied.”

Report at 8. Because the Report clearly indicates that recovery for N.R. is inappropriate, the

court amends the Report Table to correct the errant $205.00 entry.

F. Amended Table of Fees Requested and Allowed

Plaintiff Amount Requested Amount Allowed A.B. $935.50 $0 N.R. $205.00 $0 A.T. $1,085.00 $0 M.E. $3,932.50 $0 J.H. $1,017.50 $0 T.L. $3,355.00 $0 S.M. $1,580.00 $0 D.M. $1,126.50 $0 Te. H. $4,097.50 $0 D.A. $1,045.50 $0 K.A. $3,865.50 $0 Ta. H. $118.00 $118.00 Jo. H. $19.00 $0 E.S. $4,000.00 $4,000.00 R.G. $147.50 $0 D.H. $2,006.00 $2,006.00 K.E. $4,000.00 $4,000.00 D.H. $330.00 $0

8 A.J.P. $2,694.00 $0 J.G. $632.50 $0 D.P. $3,498.50 $3,498.50 C.P. $675.00 $675.00 V.T. $1,525.00 $0 L.B. $206.50 $0 V.H. $2,157.50 $0 G.M. $1,268.50 $1,170.00 J.J. $2,137.50 $957.50 S.J $4,000.00 $4,000.00 J.D. $4,000.00 $0 Da. B. $1,242.00 $0 De. B. $1,418.00 $0 R.A. $4,000.00 $4,000.00 Total $62,321.00 $24,425.00

IV. CONCLUSION

For the foregoing reasons and in accordance with the amended table of fees, the court

adopts in part and modifies in part Magistrate Judge Facciola’s Report and Recommendation.

An Order consistent with this Memorandum Opinion is separately and contemporaneously issued

this 26th day of March, 2009.

RICARDO M. URBINA United States District Judge

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