UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ THOMAS COX, et al., : : Plaintiffs, : : v. : Civil Action No. 09-1720 (GK) : DISTRICT OF COLUMBIA, : : Defendant. : ______________________________:

MEMORANDUM OPINION

Plaintiffs, minor children and their parents and guardians,1

seek to collect attorneys’ fees and other costs incurred in

bringing successful administrative actions under the Individuals

With Disabilities Education Act (“IDEA”),

, et seq.

Defendant is the Government of the District of Columbia. This

matter is before the Court on Plaintiffs’ Motion for Summary

Judgment. Upon consideration of the Motion, Opposition, Reply, and

the entire record herein, and for the reasons stated below,

Plaintiffs’ Motion for Summary Judgment is granted.

1 Plaintiffs are Brenda Smith and Xane Smith, as parents/guardians of the minor child, B.S.; B.S., individually; Lena Johnson, as parent/guardian of the minor child, E.J.; and E.J., individually. Thomas Cox, Sr. and Dolores Lewis, as parents/guardians of the minor child, D.C.; D.C., individually; Karen Turley and Michael Turley, as parents/guardians of the minor child, R.T.; and R.T., individually, were all voluntarily dismissed on November 24, 2009 [Dkt. No. 5]. This is a case about attorneys’ fees. What undergirds the

request for attorneys’ fees, and what caused the extensive legal

work necessary to properly and effectively represent Plaintiffs’

clients are two deeply distressing stories about the failure of the

District of Columbia to provide absolutely necessary special

education services to two children who desperately needed them.

The Smith case presents the most egregious situation. On

September 7, 2007, a thirteen-year-old girl was reported to be

verbally and physically aggressive in the classroom, argumentative,

hostile, and attention-seeking with a host of academic problems. A

plan was formulated to curb her behavior, but she was suspended for

disruptive behavior. Her parents requested, in writing, a full

evaluation for special education. The necessary comprehensive

psychological report was not completed until a year later and the

necessary Individual Education Program was not completed until

almost thirteen months later, despite the fact that the child’s

classroom behavior continued to deteriorate during the entire

school year. Finally, some fourteen-and-a-half months after the

initial incident, when the child had a particularly violent

classroom episode, she was admitted to the Psychiatric Institute

and was not discharged until two weeks later. She returned to the

same classroom setting--and was again violent, cursed her teachers,

and refused to follow any instructions or directions. Some sixteen

and a half months after the initial incident, she was suspended

-2- from school for pushing a teacher, and was ultimately brought to

court for similar conduct when it occurred again. Finally, some

eighteen months after the initial incident, the child was

determined to be eligible for special education services and

received a disability certificate of Emotionally Disturbed.

It was only after the child’s parents filed a Due Process

Complaint, and received a full evidentiary hearing, that, thanks to

the Hearing Officer, DCPS was ordered to place the child (after she

lost two years of school2) at the High Road Middle School where she

would receive the services she needed and to which she was

entitled.3

The Johnson case, while less extreme, is equally

heartbreaking. In that case, by December 4, 2008, it was recognized

that this fourteen-year-old boy needed “an alternative placement”

that was more restrictive and with students functioning at a level

of mild mental retardation, but that he would have to be re-

evaluated. That re-evaluation was done in a timely fashion and the

original recommendation was re-affirmed. Thereafter, no progress

was made in changing the boy’s placement, his Individual Education

Program was not revised, and various necessary tests and meetings

related to finding an appropriate placement did not take place.

2 The Hearing Officer ruled on August 25, 2009. 3 The Hearing Officer’s opinion in this case was impressively comprehensive, detailed, and thoughtful.

-3- Four-and-a-half months after the initial determination that an

alternative placement was needed, the child was suspended from

school for disruptive behavior, which the school system determined

was a manifestation of his disability.

Again, it was only after the child’s parent filed a Due

Process Complaint, and received a full evidentiary hearing, that,

thanks to the Hearing Officer (not the Hearing Officer in the

former case), DCPS was ordered to place the child, after he lost

almost a full school year,4 at the High Road Middle School where he

would receive the services he needed and to which he was entitled.5

Both of these cases highlight not just the maddening

inadequacies of the school system, but in relation to these

Complaints, the enormously vital role that lawyers play in ensuring

that their young clients obtain the educational enhancements that

Congress has granted them so that they may go on to lead productive

lives.

4 The Hearing Officer ruled on June 19, 2009. 5 Once again, the Hearing Officer wrote a careful and detailed Opinion.

-4- I. BACKGROUND

A. Factual History6

1. Plaintiffs Brenda Smith, Xane Smith, and B.S.

On June 22, 2009, Plaintiffs Brenda Smith and Xane Smith filed

a Due Process Complaint on behalf of B.S., alleging that the

District of Columbia Public Schools (“DCPS”) had denied B.S. a free

appropriate public education (“FAPE”) under the IDEA. At that time,

B.S. was a thirteen-year-old girl attending Macfarland Middle

School. B.S. Decision 2.

The events giving rise to the Smiths’ Due Process Complaint

began on September 1, 2007. On that day, a Student Support Team

(“SST”) learned from B.S.’s teacher that B.S.’s classroom behavior

was, among other things, verbally and physically disruptive,

verbally aggressive, bullying, easily distracted, argumentative,

hostile when criticized, attention-seeking, and easily frustrated.

B.S.’s classroom behavior was accompanied by a host of academic

issues, including declining grades, disorganization, incomplete

assignments, failure to follow directions, poor study skills, and

inability to work well with others. On September 14, B.S. was also

described as having a short attention span, showing difficulty with

6 Unless otherwise noted, the facts set forth herein are drawn from the Parties’ Statements of Material Facts Not in Dispute submitted pursuant to Local Rule 7(h) and from the Hearing Officer Decisions for B.S. (“B.S. Decision”) [Dkt. No. 12-16] and E.J. (“E.J. Decision”) [Dkt. No. 12-8].

-5- sustained reading exceeding three minutes, and constantly moving

about the classroom.

.

On October 4, 2007, the SST formulated a plan for B.S., which

included weekly counseling, support and materials as needed for

B.S.’s course work, and daily monitoring forms to be completed by

B.S.’s teacher. The SST plan also called for conducting a

functional behavioral assessment (“FBA”), to produce a Behavior

Intervention Plan (“BIP”). Nevertheless, B.S.’s problems persisted

and she was suspended for five days.

.

On November 19, 2007, Petitioners signed a written request

that B.S. be evaluated for special education. B.S. was then

referred to a Multidisciplinary Team (“MDT”). By November 26, 2007,

the psychologist at Macfarland had the necessary release of

information form from Brenda and Xane Smith and an SST Final

Meeting Report requesting evaluation and referral to the MDT. On

that same date, the psychologist relayed all relevant data to a

DCPS special education specialist (“SEC”).

By January 24, 2008, B.S. had failed four of the core classes

for that quarter. On February 6, the psychologist at MacFarland

sent a memorandum to the SEC, reminding him or her that B.S.

continued to have problems at school, that the SST suspected

disability, and that relevant data had been submitted to the SEC

back in November 2007. The psychologist indicated that a meeting

with B.S.’s parents had been scheduled for February 11, 2008, and

-6- suggested that the SEC promptly schedule his or her own meeting

with the Smiths to move forward with the eligibility process and to

avoid litigation.

.

On February 28, 2008, the MDT met to discuss B.S. and develop

a Student Evaluation Plan, including psychological testing.

Petitioners were present at this meeting. They informed the MDT

that B.S. had been on medication for Attention Deficit

Hyperactivity Disorder (“ADHD”) for two years and insisted that

B.S. be evaluated by the special education department. For the

second time, Petitioners signed consent forms for this purpose.

.

On April 3, 2008, the MDT met once again as a result of B.S.’s

disruptive behavior. As it had done more than a month earlier, the

MDT again developed a Student Evaluation Plan calling for

psychological testing. This time, the MDT established a due date of

May 30, 2008 for the psychological assessments.

On August 13, 2008, more than two months after the MTD’s

deadline, the Department of Mental Health sent a letter to the SEC

indicating that the Department of Mental Health Community Services

Agency had diagnosed B.S. with Oppositional Defiant Disorder

(“ODD”) and ADHD. The letter also stated that B.S. had begun

medication management in March 2008 and was under the care of a

child psychiatrist.

-7- On September 8, 2008, more than three months after the MTD’s

deadline, DCPS finally completed the comprehensive psychological

report for B.S. Among other things, the report noted that B.S. was

having social and emotional concerns relating to ADHD symptoms,

that B.S. qualified for special education services based on poor

performance in math testing, and that B.S. had the cognitive

ability to perform at grade level, given accommodations to address

restlessness and attention deficits. At that time, final

recommendations were pending the convening of an MDT meeting and

receipt of any outside reports from the parents. Finally, further

testing was completed on September 24, 2008––nearly thirteen months

after the initial incident of September 1, 2007.

.

An initial individualized educational program (“IEP”), dated

September 25, 2008, classified B.S. with a Specific Learning

Disability (“SLD”) and called for five hours per day of specialized

instruction in the general education setting as well as thirty

minutes per day of behavior support services. This IEP required

that special education services be provided in a combination

setting of general education and resources classroom. At the

meeting for this IEP, on September 25, 2008, the MDT determined

that ADHD was not impacting B.S.’s ability to learn. The MDT

referred B.S. to the general education curriculum to develop a

behavior intervention plan.

.

-8- On November 24, 2008, B.S. entered a classroom that was not

hers and became angry when the teacher in that classroom asked her

to leave. B.S. destroyed property, ruined work books, and threw a

pencil sharpener, timer, and numerous books around the classroom.

On the same day, B.S. was admitted to the Psychiatric Institute of

Washington (“PIW”). She was discharged two weeks later on December

8, 2008, with a diagnosis of ODD, Mood Disorder Not Otherwise

Specified (“NOS”), and ADHD, and given a prescription for

medication.

.

Upon return to school, on December 15, 2008, B.S.’s behavior

again deteriorated. She exhibited frequent hitting and kicking,

running away from the school, cursing, refusal to comply with

authority, and disrespect toward teachers. The MDT convened again

on December 18, 2008 to discuss B.S. The MDT determined that she

was a danger to herself and others and recommended that she be

considered for a change of school placement, once evaluations were

completed. Not surprisingly, B.S. continued to have frequent,

significant violent and disruptive outbursts throughout January

2009.7

.

7 One example of the type of conduct B.S. engaged in while the MDT continued to review her evaluations was described as follows by the Hearing Officer: “On 01/21/09, after another student read a poem about the teacher that [B.S.] had written, [B.S.] tore up the poem and offered the paper pieces to the teacher, [B.S.] ate food in class while waving the food bag in the teacher’s face, [B.S.] took out a make-up kit in class and refused to put it away or give it to the teacher, [B.S.] continuously unlocked a door that the (continued...)

-9- On January 21, 2009, DCPS developed a BIP intended to improve

B.S.’s lack of self-control and decrease her aggression. The BIP

called for providing verbal praise for appropriate behavior and

giving B.S. “the opportunity to demonstrate behavior.” The BIP

provided for additional computer time and food rewards as

reinforcement. Inappropriate behavior would result in detention.

.

The next day, January 22, 2009, B.S. was suspended for pushing

a teacher. That day, the MDT met to review assessments from PIW. At

that meeting, the school nurse informed the team that B.S. “would

not comply with taking medication at school.” The MDT intended to

send the documents from PIW and DCPS’s psychological evaluation

“downtown” for determination as to whether B.S. met the criteria

for Emotional Disturbance (“ED”). B.S.’s violent and disruptive

conduct persisted through April 8, 2009, when she pushed a teacher

twice, resulting in a court appearance.8

.

On March 11, 2009, B.S. was determined eligible for special

education services with a primary disability classification of

Emotionally Disturbed (“E.D.”) (as opposed to the prior

7 (...continued) teacher had locked, and [B.S.]’s behaviors prevented the teacher from presenting the lesson to the class.” B.S. Decision 8. 8 The record gives no detail about the “court appearance.” Based on this Court’s long experience on the trial bench at Superior Court, it would appear that B.S. was brought in on a Juvenile Delinquency charge, although we know nothing about its disposition.

-10- classification of Specific Learning Disability). As a result, B.S.

was given a new IEP prescribing twenty-five and a half hours per

week of specialized instruction outside of general education and

two hours per day of behavioral support services in the general

education setting. This IEP also provided for a dedicated aide and

Extended School Year services. On the same day, the MDT determined

that B.S. needed a more restrictive and intensive program for the

emotionally disturbed. Between March 11, 2009 and the end of the

school year, B.S.’s parents did not attend any MDT/IEP meetings

where school placement for B.S. was discussed.9 Plaintiffs were

unaware of any new school placement for the following year.

.

Therefore, on June 22, 2009––twenty-two months after the

initial incident of September 1, 2007––Plaintiffs filed a Due

Process Complaint alleging that DCPS had denied B.S. a FAPE. On

August 20, 2009, after consideration of sixty-five documentary

exhibits, four witnesses, and written closing statements, a Hearing

Officer determined that:

DCPS’ failure to evaluate [B.S.] in a timely manner, failure to determine [B.S.] eligible for special education services as a student with a disability in a timely manner, failure to provide [B.S.] with an appropriate IEP and placement, failure to evaluate [B.S.] in all areas of suspected disability, and failure to

9 The record does not indicate whether any such meetings actually took place and, if so, whether B.S.’s parents knew of them.

-11- address [B.S.]’s chronic and severe behavior problems with a FBA and effective BIP were all egregious violations of IDEIA, and as a result [B.S.] suffered much educational harm. As of the date of the due process hearing, DCPS still had not convened an IEP team meeting to discuss and determine an appropriate placement for [B.S.] for the upcoming 2009-1010 [sic] school year. All of the evidence taken together indicated that since at least March 2008, [B.S.] has been without appropriate evaluations, IEP, education placement and services, and [B.S.] has been denied a FAPE continuously since that time.

. The Hearing Officer ordered DCPS to immediately place

and fund B.S.’s attendance at the High Road Middle School,

including necessary transportation, pay for an independent clinical

psychological evaluation of B.S. within ten days, conduct an FBA of

B.S. withing thirty days, and convene an MDT/IEP meeting at High

Road within fifteen days of the receipt of the independent

evaluation reports and the FBA in order to revise the IEP as

appropriate.

.

On August 25, 2009, Plaintiffs submitted a petition for

attorneys’ fees and costs to DCPS in the amount of $26,525.28. On

November 2, 2009, Defendant made a payment to Plaintiffs in the

amount of $18,193.88, resulting in a $8,341.40 difference between

what Plaintiffs believe they are owed for attorneys’ fees and costs

relating to B.S.’s petition and what Defendant has paid. Pls.’

Statement of Facts ¶¶ 10-13. Defendant concedes that it owes

Plaintiff Brenda Smith $47 in costs. Def.’s Response to Pls.’

-12- Statement of Facts ¶ 13. Therefore, costs of $8,294.40 relating to

B.S.’s case remain in dispute.

2. Plaintiffs Lena Johnson and E.J.

On May 8, 2009, Plaintiff Lena Johnson filed a Due Process

Complaint on behalf of E.J., alleging that DCPS had denied E.J. a

FAPE under the IDEA. At that time, E.J. was a fourteen-year-old boy

and a 7th grade student at Brookland EC at Bunker Hill

(“Brookland”).

About five months before the filing of the Due Process

Complaint, on or about December 4, 2008, an MTD at E.J.’s school

met to discuss E.J.’s recent behavior and his need for an IEP. The

team concluded that E.J. needed “an alternative placement” and that

E.J. would have to be re-evaluated. E.J. Decision 3. DCPS conducted

a social history with Lena Johnson on or about December 15, 2008,

and further evaluated E.J.’s academic skills on or about February

9, 2009. At that time, DCPS did not conduct cognitive testing or

re-evaluate E.J.’s speech and language skills. Finally, on or about

February 17, 2009, a team met to further re-evaluate E.J. and

resolved that “E.J. continued to be eligible for special education

and related services as a student with Mental Retardation.” The

team reaffirmed its December 4, 2008 conclusion that E.J. required

“a more restrictive placement with students functioning at a level

of mild mental retardation with significantly delayed academics,”

which could not be provided at Brookland.

-13- In the months that followed, as E.J. remained at Brookland,

Johnson repeatedly asked about a new placement for him, only to be

told by the principal and others that no other placements were

available. At the time the Due Process Claim was filed on May 8,

2009, more than five months had passed since E.J.’s December 4,

2008 evaluation, almost three months had passed since his February

17, 2009 re-evaluation, and his IEP had still not been revised to

reflect his need for a more restrictive environment or full-time

placement. Nor had a notice of proposed placement been sent to his

parent. Nor had any MDT meeting occurred to move forward with a

change of placement. Indeed, E.J. continued to attend school at

Brookland pursuant to an IEP and educational placement that DCPS

had already determined, on December 4, 2008, to be inappropriate to

his needs.

.

E.J. missed approximately fifteen speech therapy sessions and

thirty hours of counseling during the 2008-2009 school year.

Because of this failure, the Hearing Officer found that DCPS failed

to provide the services required under E.J.’s already insufficient

IEP. On or about April 28, 2009, E.J. was suspended from Brookland

for eleven days. DCPS subsequently determined that the conduct for

which E.J. was suspended was a manifestation of his disability.

DCPS did not conduct an FBA.

On June 19, 2009, after consideration of fifty documentary

exhibits, four witnesses, and detailed written closing statements

-14- requested by the Hearing Officer, that Hearing Officer concluded

that DCPS’s failure to re-evaluate E.J. in all areas of suspected

disability, to develop a suitable IEP, to provide required services

such as speech therapy and counseling, to provide an appropriate

education placement, and to conduct an FBA and implement a

behavioral intervention plan after E.J. was suspended from

Brookland denied E.J. a FAPE. Consequently, the Hearing Officer

ordered immediate placement and funding for E.J. at High Road as

well as transportation, a meeting within thirty days of placement

at High Road to revise E.J.’s IEP, funding for further independent

evaluations of E.J.’s abilities, and, within sixty days, the

functional behavioral assessment that DCPS had failed to conduct.

.

On July 16, 2009, Plaintiffs submitted a petition for

attorneys’ fees and costs to DCPS, seeking $35,032.46. This

original submission contained an erroneous entry and should have

sought $23,152.46. Pls.’ Statement of Facts ¶ 4. On September 23,

2009, Defendant paid Plaintiffs in the amount of $15,763.70,

resulting in a difference of $7,388.76 between what Plaintiffs

believe they are owed for attorneys’ fees and costs relating to

E.J.’s petition and what Defendant has paid. Pls.’ Statement of

Facts ¶¶ 3-7. Defendant concedes that it owes Plaintiff Lena

Johnson $555.80 in costs. Def.’s Response to Pls.’ Statement of

-15- Facts ¶ 7. Therefore, costs of $6,832.96 relating to E.J.’s case

remain in dispute.

B. Procedural History

On September 10, 2009, Plaintiffs filed a Complaint [Dkt. No.

1] in this Court seeking the outstanding balance from their fee

petitions. On December 1, 2009, Defendant filed its Answer [Dkt.

No. 6]. On March 16, 2010, Plaintiffs filed a Motion for Summary

Judgment [Dkt. No. 12]. On May 6, 2010, Defendant filed its

Opposition [Dkt. No. 14]. On July 6, 2010, Plaintiffs filed their

Reply [Dkt. No. 16].

II. GOVERNING STANDARDS

Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c), as amended December 1, 2007; Arrington v. United

States,

(D.C. Cir. 2006). In other words, the

moving party must satisfy two requirements: first, demonstrate that

there is no “genuine” factual dispute and, second, that if there

is, that it is “material” to the case. “A dispute over a material

fact is ‘genuine’ if ‘the evidence is such that a reasonable jury

could return a verdict for the non-moving party.’” Arrington,

, quoting Anderson v. Liberty Lobby, Inc.,

(1986). A fact is “material” if it might affect the outcome of

-16- the case under the substantive governing law. Liberty Lobby,

.

Section 1415(i)(3)(B) of the IDEA gives federal district

courts the authority to “award reasonable attorneys’ fees as part

of the costs to the parents of a child with a disability who is the

prevailing party.”

(i)(3)(B).10 Where the party

seeking the attorneys’ fees was the prevailing party, the court

must assess whether the fees sought are reasonable. See Jackson v.

District of Columbia,

(D.D.C. 2010).

Generally, a “reasonable” attorneys’ fee is based on the reasonable

number of hours expended multiplied by a reasonable hourly rate.

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

(D.C. Cir. 1982); Cobell v. Norton,

(D.D.C. 2002); Blackman v. District of Columbia,

(D.D.C. 1999) (citing to Hensley v. Eckerhart,

(1983)).

The plaintiff bears the burden of demonstrating that both the

hourly rate and the number of hours spent on particular tasks are

reasonable. In re North,

(D.C. Cir. 1995);

Jackson,

; Holbrook v. District of Columbia,

(D.D.C. 2004). In order to show the

10 Defendants concede that Plaintiffs are “prevailing parties” for the purposes of § 1415(i)(3)(B) and as such are entitled to an award of “reasonable attorneys’ fees” under the statute. See Def.’s Statement of Facts ¶¶ 2, 9.

-17- reasonableness of the hourly rates, “the plaintiff must submit

evidence on at least three fronts: ‘the attorneys’ billing

practices; the attorneys’ skill, experience, and reputation; and

the prevailing market rates in the relevant community.’” Jackson,

(quoting Covington v. District of Columbia,

(D.C. Cir. 1995)). The plaintiff may satisfy the

burden of demonstrating the reasonableness of hours spent “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.’” Holbrook,

(quoting Nat’l Ass’n of Concerned Veterans,

).

III. ANALYSIS

Defendant makes two basic objections to the fees sought by

Plaintiffs. First, Defendant claims that Plaintiffs’ counsel’s

hourly rates are unreasonable. Specifically, Defendant contends

that Plaintiffs’ reliance on the “Laffey Matrix” is not justified

and that Plaintiffs should be reimbursed at the lower rates set by

DCPS. Def.’s Opp’n 4-11. Second, Defendant argues that specific

charges are unreasonable. Id. at 11-15. These claims will be

addressed in turn.

A. The Hourly Rates Are Reasonable

Plaintiffs seek fees at an hourly rate of $400 for counsel

Elizabeth T. Jester, Esq. and at an hourly rate of $125 for

paralegal staff. Pls.’ Mot. for Summ. J. 4. Plaintiffs rely on the

-18- fact that these rates are below the rates specified in the Laffey

Matrix, which sets out compensable billing rates for attorneys in

the District of Columbia and has been adopted by the judges of this

District in many cases. Id. at 4-6. Defendant objects on the ground

that the DCPS’s own “Guidelines for the Payment of Attorney Fees in

IDEA Matters” (“DCPS Guidelines”), which limit rates for attorneys

to $300 per hour and for paralegals to $90 per hour, are a more

appropriate benchmark than the Laffey Matrix. Def.’s Opp’n 5-11.

The Laffey Matrix, approved long ago in Laffey v. Northwest

Airlines, Inc.,

(D.D.C. 1983), rev’d on

other grounds,

(D.C. Cir. 1984), provides a fee schedule

for attorneys based on experience. See Covington,

.

The Laffey Matrix has been updated periodically “to reflect current

billing rates in the community.” District of Columbia v. Jeppsen,

, 38 n. 1 (D.D.C. 2010).

Defendant observes that the Laffey Matrix “was intended and

designed for representation in federal civil litigation.” Def.’s

Opp’n 5; see Covington,

(describing the Laffey

Matrix as evidence of “prevailing market rates for comparably

experienced attorneys handling complex federal litigation.”).

Defendant argues that Plaintiffs’ Due Process Complaints were not

complex and therefore related attorneys’ fees should not be

determined by the Laffey Matrix, and that the DCPS Guidelines

provide a more suitable formula. Id. at 6-7. Defendant relies

-19- entirely on Agapito v. District of Columbia,

(D.D.C. 2007) (Collyer, J.), which adopted the DCPS Guidelines in

place of the Laffey Matrix in awarding fees based on IDEA

litigation. Id. at 6.

Judge Ricardo M. Urbina, of this District Court, recently had

occasion to consider precisely this argument, and rejected it. See

Jackson,

. As he noted, “numerous judges

in this district have applied Laffey rates in the context of fee

awards arising out of IDEA administrative proceedings.”

at 102

(citing Kaseman v. District of Columbia,

(D.D.C. 2004) (Huvelle, J.); Brown v. Jordan P.C.S.,

(D.D.C. 2008) (Leon, J.); Bush ex rel. A.H. v. District

of Columbia,

(D.D.C. 2008) (Urbina, J.);

Abraham v. District of Columbia,

(D.D.C.

2004) (Collyer, J.); Nesbit v. District of Columbia, Civ. No. 01-

2429, at 1 (D.D.C. Nov. 4, 2003) (Order) (Kessler, J.)). Judge

Urbina concluded that Agapito has “no binding effect on this court,

[is] contrary to the weight of precedent and declined to address

the decisions listed above, with which [it is] in conflict.”

Jackson, at

. This Court totally agrees with

his reasoning.

Moreover, Defendant’s claim that B.S. and E.J.’s hearings were

“uncomplicated” is absurd, as any reading of the comprehensive

decisions by the two Hearings Officers in these cases demonstrates.

-20- See Def. Opp’n 6. In B.S.’s case, it took nearly two years––which

included a suspension from school and a two-week stay in a

psychiatric hospital––and a hearing with sixty-five documentary

exhibits, four witnesses, and written closing statements to obtain

an order forcing DCPS to provide desperately needed treatment and

educational assistance. See B.S. Decision 2-3. As for E.J., it took

more than seven months and a hearing with fifty documentary

exhibits, four witnesses, and written closing statements to obtain

a ruling that would, hopefully, provide the help that E.J.’s MDT

made clear was needed. See E.J. Decision 5-8.

Agapito involved no such complex matters, “no pre-hearing

interrogatories or discovery, no production of documents or

depositions, no psychiatrists or psychologists testifying about

learning disabilities, no briefings of intricate statutory or

constitutional issues, no pre-trial briefings, no lengthy hearings,

no protracted arguments, and few, if any, motions filed.”

.

Finally, Defendant offers no reasoned defense for its own

Guidelines. The affidavit of Quinne Harris-Lindsey [Dkt. No. 14-4]

cites no justification for imposing a $300 per hour cap on all IDEA

attorneys fees, or for rejecting the Laffey Matrix, which has been

so widely accepted, and no empirical evidence of prevailing

attorney rates in Washington, D.C. Nor is there any evidence that

these Guidelines went through any kind of process for the issuance

-21- of administrative regulations, where public comment could be

submitted and considered. See

(setting out

procedures for notice and comment rulemaking).

It is also worth noting that in order to handle special

education cases effectively, counsel must know far more than IDEA

law in order to cope with the obstructive and delaying practices of

DCPS. Sad to say, to be effective––i.e., to get services,

education, and treatment for their young clients––it is essential

that counsel understand the bureaucratic workings of that system,

know competent and caring individuals in that system who can break

logjams and obtain necessary evaluations, reports, and materials,

and then assure provision of whatever FAPE is deemed appropriate.

To accomplish this goal takes diligence, perseverance,

persuasiveness, and negotiating and inter-personal skills––as well

as the traditional legal skills expected of any competent lawyer.

In short, application of the Laffey Matrix is appropriate

here.

1. Elizabeth Jester’s Rate Is Reasonable

The Laffey Matrix sets out an hourly rate of $465 for work

performed in 2008-2009 by attorneys with more than twenty years of

experience. Plaintiffs seek an hourly rate of only $400 for Jester,

who has practiced law for over twenty-nine years. See Pls.’ Mot.

for Summ. J. 5. Moreover, Plaintiffs have amply demonstrated

Jester’s experience and reputation. See Covington,

.

-22- In addition to Jester’s lengthy experience handling children’s

rights issues and extensive experience litigating special education

cases, she teaches CLE courses on special education and has served

as an instructor for new special education attorneys on the D.C.

Superior Court CCAN panel. Jester has served on the D.C. Superior

Court Family Division panel of attorneys approved to accept Special

Education Attorney appointments since its inception and has

litigated numerous cases both as appointed and retained counsel in

D.C. Superior Court, the Federal District Court for the District of

Columbia, and the Court of Appeals for the District of Columbia.

See Jester Decl. [Dkt No. 12-1] ¶ 4-6, at 2-4. Given this

experience, $400 is a reasonable rate for Jester’s work on these

matters.

2. Mary Williams’ Rate Is Reasonable

The rate of $125 sought for Mary Williams’ work as a paralegal

is below the rate of $130 specified in the Laffey Matrix. For the

reasons cited above, $125 is a reasonable rate for Williams’ work

as a paralegal.

B. Plaintiffs’ Charges Are Reasonable

Defendant makes three challenges to the reasonableness of

specific charges. In particular, Defendant claims that (1) certain

clerical and non-professional work should not be compensated at an

attorney’s rate, (2) charges for legal work performed far before

the administrative hearing are not compensable, and (3) certain of

-23- Plaintiffs’ entries are too vague to merit compensation. See Def.’s

Opp’n 11-15. Each will be considered individually.

1. Supposedly “Clerical” Activities Are Reasonably Charged at Attorney Rates

Defendant objects to the attempt by Plaintiffs’ counsel to

charge attorney rates for certain work performed, “such as calls

and letters to request records from a school.” Def.’s Opp’n 12.

Defendants rely on Bailey v. District of Columbia,

(D.D.C. 1993), for the proposition that clerical fees may only be

permitted where an attorney is a solo practitioner. Def.’s Opp’n

11. Defendants also argue that the activities reimbursed for in

Bailey were less “elementary” than the tasks at issue here. Id. at

11-12.

However, the court in Bailey specifically recognized that

attorneys “operating either as solo practitioners or in small

firms, often lack the resources to retain a large staff of junior

lawyers who could handle such tasks more economically” and that

“[d]enying plaintiffs compensation for these tasks would unfairly

punish plaintiffs and their counsel for not staffing this case as

if they had the manpower of a major law firm.”

(emphasis added); see also Jeppsen,

. Here,

Plaintiffs’ counsel had no full-time paralegal or any other staff

to assist in these tasks. Supplemental Aff. of Elizabeth T. Jester,

Esq. [Dkt. No. 16-1] ¶ 4. Further, these tasks cannot be dismissed

as merely “elementary,” given that the “[p]ersonnel at McFarland

-24- were obstructionist and refused to respond to numerous requests for

the records to the point that . . . counsel had to drive to the

school to personally review the records and obtain a copy.”

For

these reasons, it was appropriate and reasonable to allow payment

of these charges at an attorney’s rate.

2. Charges Relating to Activities in Advance of Hearings Are Reasonable

Defendant next challenges certain charges made relating to

B.S.’s case on the ground that billing entries from April 15, 2009

through May 14, 2009 “cannot possibly be determined to be related

to the subsequent hearing,” which occurred on August 4, 2009.

Def.’s Opp’n 13. Defendant contends that “in the absence of some

extraordinary explanation detailing how the actions directly

related to the administrative proceeding,” such charges must be

deemed unreasonable.

Defendant cites no caselaw supporting imposition of such a

requirement. Nor could it. Indeed, one of the cases Defendant cites

directly contradicts its claim. In Lax v. District of Columbia, the

court found that a year in advance of a hearing “is an entirely

reasonable window of time to be engaging in productive work that

will result in a favorable administrative decision” based merely on

a showing by the plaintiff that each charge was tied to a

particular hearing. Civ. No. 04-1940,

, at *4

(D.D.C. July 12, 2006). Plaintiffs have amply shown that charges

for work done less than five months in advance of what was a very

-25- complicated hearing are reasonable. See Supplemental Aff. of

Elizabeth T. Jester ¶ 2 (detailing counsel’s efforts to obtain and

review records).

Defendant’s objection here is particularly unpersuasive in

light of the fact that the reason attorneys often have to conduct

so much work in advance of filing a Due Process Complaint is

because employees of the District of Columbia school system will

not readily provide evaluations and reports, which are not only

essential but to which plaintiffs are entitled. See

Plaintiffs’

charges are not made unreasonable when caused by Defendant’s own

delays. Hence, payment of the challenged charges relating to work

in advance of B.S.’s hearing is reasonable and appropriate.

3. Supposedly “Vague” Charges Are Reasonable

Finally, Defendant argues that entries with descriptions such

as “Phone with B. Smith, client” are too vague to determine whether

they are reasonably related to the Due Process Complaint. Def.’s

Opp’n 14.

To be sufficient, an invoice “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.” Nat’l

Ass’n of Concerned Veterans,

(quoting Copeland v.

Marshall,

(D.C. Cir. 1980)). Plaintiffs’ entries

make it clear that counsel was communicating with her clients

regarding their Due Process Complaints. Defendant’s criticisms are

-26- of the “nit-picking” variety which this Circuit has warned against.

See Nat’l Ass’n of Concerned Veterans,

(Tamm,

J., concurring) (“Neither broadly based, ill-aimed attacks, nor

nit-picking claims by the Government should be countenanced.”). The

charges Defendant has described as vague or lacking specificity are

reasonable and appropriate.

IV. CONCLUSION

Plaintiffs’ Motion for Summary Judgment is granted. Pre-

judgment interest is awarded, since Defendant did not contest

Plaintiffs’ request in its Opposition. See Kattan by Thomas v.

District of Columbia,

(D.C. Cir. 1993); SEC v.

Bilzerian, Civ. No. 89-1854 (SSH),

, at *1 (D.D.C.

June 25, 1993).

/s/ December 9, 2010 Gladys Kessler United States District Judge

Copies via ECF to all counsel of record

-27-