UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ WARD BUCHER, et al., : : Plaintiffs, : : v. : Civil Action No. 09-1874 (GK) : DISTRICT OF COLUMBIA, et al., : : Defendants. : ______________________________:

MEMORANDUM OPINION

Plaintiffs Ward Bucher and his minor son J.B. seek to collect

attorneys’ fees and other costs incurred in bringing a successful

administrative action under the Individuals With Disabilities

Education Act (“IDEA”),

, et seq. Defendant is the

Government of the District of Columbia.1 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 in part.

1 Nominal Defendants Michelle A. Rhee, former Chancellor of the District of Columbia Schools, and Kerri Briggs, former Acting State Superintendent of Education for the District of Columbia, were dismissed with consent of Plaintiffs on November 5, 2009. I. BACKGROUND

A. Factual History2

Plaintiff J.B., now nine years old, is “an intellectually

gifted child with a problem with work production due to problems

with fine motor control and visual motor integration.” H.O.

Decision 6, ¶ 12. In the past, J.B. has scored in the 99th

percentile for his age group in ability to reason, verbal skills,

and vocabulary.

. His intellectual reasoning skills

have scored at or above the 95th percentile.

J.B. has also

shown above average ability in non-verbal skills.

.

However, J.B. suffers from a number of disabilities which have

“made it difficult for [him] to sustain focused attention and

effort as well as to regulate his behaviors.”

. These

disabilities include Attention Deficit/Hyperactivity Disorder

(“ADHD”), with which J.B. was diagnosed in 2007, and an auditory

processing learning disorder and sensory integration disorder, with

which J.B. was diagnosed in 2008.

. J.B. has also

“exhibited behavioral issues in the classroom, including . . .

aggression, non-compliance, inability to accept any criticism . . .

and difficulty socializing.”

. These disabilities

2 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’s Decision (“H.O. Decision”), Compl. Ex. A [Dkt. No. 1-2].

-2- would cause J.B. to “struggle in a typical school environment.”

.

In 2007, when J.B. was approximately six years old, he was

asked to leave his Montessori preschool because of his behavioral

problems.

. J.B. was then asked to leave his next

school, which was in Guatemala, due to aggression toward other

students.

In May 2008, J.B.’s father attempted to enroll him in his

neighborhood school run by the District of Columbia Public Schools

(“DCPS”).

. The school refused.

On May 8, 2008,

J.B.’s father sent the school a letter explaining his son’s

disabilities and requesting evaluations and a meeting to discuss

accommodating J.B.’s needs.

. Finally, and only after

intervention by the DCPS Ombudsman’s Office at the request of

J.B.’s parents, the school scheduled a meeting for August 20, 2008.

The notice J.B.’s parents received for the August 20 meeting

did not indicate that “this meeting would be an eligibility

meeting, or even that the neighborhood school staff planned to

discuss evaluations and eligibility.”

. At the

meeting, the school staff informed J.B.’s parents that they would

not find J.B. eligible for special education until J.B. had

attended a general education classroom for ten days.

,

-3- ¶ 8. The staff did not address the parents’ request for

evaluations.

.

Because J.B.’s parents believed that placing him “in a general

education classroom for even a short time would be traumatic” and

feared “another behavioral incident,” they enrolled J.B. in a non-

public school for the 2008-2009 school year.

. J.B.’s

parents also paid for private occupational therapy, tutoring, and

neurological and auditory evaluations for J.B.

.

On March 31, 2009, Plaintiffs filed a Due Process Complaint

alleging that DCPS had denied J.B. a FAPE.

. J.B.’s hearing

lasted four days, during which time Plaintiffs called nine

witnesses and submitted numerous exhibits. Pls.’ Statement of Facts

¶¶ 8-10. On June 18, 2009, the Hearing Officer determined that,

the testimony overwhelmingly established that [J.B.] is eligible for special education as a student with multiple disabilities. Yet, DCPS ignored Petitioner’s repeated requests for an eligibility meeting. When finally forced to hold the meeting by the DCPS Ombudsman’s Office, DCPS failed to provide Petitioners adequate notice that they would discuss [J.B.]’s eligibility for special education. Then, after discussing [J.B.]’s disabilities and need for specialized instruction, the team failed to make an eligibility determination or decision about the request for evaluations. Instead, the DCPS team decided to throw the Student into a general education classroom to see if he ‘would sink or swim.’ . . . DCPS denied [J.B.] a free, appropriate, public education in failing to find [him] eligible for special education.

-4- H.O. Decision 16-17. The Hearing Officer ordered DCPS to reimburse

Plaintiffs for the costs of J.B.’s tuition for 2008-2009 and the

tutoring and evaluations undertaken at Plaintiffs’ expense, and to

pay for J.B. to continue to attend his non-public school for the

2009-2010 and 2010-2011 school years.

After the Hearing Officer issued the decision, Plaintiffs

submitted a petition for attorneys’ fees and costs to DCPS, seeking

$50,155.00. Pls.’ Statement of Facts ¶ 30. DCPS reimbursed

Plaintiffs in the amount of $26,436.00, resulting in a difference

of $23,719.00 between what Plaintiffs believe they are owed for the

total of attorneys’ fees and costs relating to J.B.’s petition and

what Defendant has paid. Pls.’ Statement of Facts ¶¶ 32-33.

Defendant concedes that it owes Plaintiffs $1779.47 in fees. Def.’s

Opp’n Ex. A, at 1. Therefore, costs of $21,939.53 relating to

J.B.’s case remain in dispute.

B. Procedural History

On October 1, 2009, Plaintiffs filed their Complaint [Dkt. No.

1] seeking the outstanding balance from their fee petition. On

November 23, 2009, Defendant filed its Answer [Dkt. No. 9]. On

December 17, 2009, Plaintiffs filed a Motion for Summary Judgment

[Dkt. No. 12]. On June 25, 2010, Defendant filed its Opposition

[Dkt. No. 30]. On July 23, 2010, Plaintiffs filed their Reply [Dkt.

No. 32].

-5- 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

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” in an administrative proceeding.

(i)(3)(B).3 Where the party seeking the attorneys’ fees was the

3 Defendants concede that Plaintiffs are the “prevailing party” 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 Opp’n 3.

-6- 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

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

-7- 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 4-10. Second, Defendant argues that specific

charges are unreasonable. Id. at 10-15. These claims will be

addressed in turn.

A. Hourly Rates

Plaintiffs seek fees for counsel Karen D. Alvarez at an hourly

rate of $300 for time billed before April 24, 2009, and at an

hourly rate of $350 for time billed after April 24, 2009. Pls.’

Mot. for Summ. J. 1. Plaintiffs rely on the 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 3. Defendant objects on the ground that DCPS’s own

“Guidelines for the Payment of Attorney Fees in IDEA Matters”

(“DCPS Guidelines”), which limit rates for attorneys to $300 per

hour, are a more appropriate benchmark than the Laffey Matrix.

Def.’s Opp’n 5-8.

-8- 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, not

administrative proceedings.” 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’ hearing

was not complex and therefore related attorneys’ fees should not be

determined by the Laffey Matrix. Def.’s Opp’n 5-6. Defendant

proposes that the DCPS Guidelines provide a more suitable formula.

Id. at 7. Defendant relies 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.

This Court recently considered precisely the same argument and

rejected it. Cox v. District of Columbia, __ F. Supp. 2d __, Civ.

No. 09-1720,

(D.D.C. Dec. 9, 2010) (citing

Jackson,

) (Urbina, J.) (“numerous judges in

-9- this district have applied Laffey rates in the context of fee

awards arising out of IDEA administrative proceedings.”); 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.)). As Judge

Urbina concluded in Jackson, 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.”

.

Moreover, Defendant’s claim that J.B.’s hearing was

“uncomplicated” is untenable. See Def. Opp’n 5. J.B.’s hearing

lasted twenty-seven hours across four days. H.O. Decision 3; Pls.’

Statement of Facts ¶ 7. The Hearing Officer considered forty-two

proposed exhibits, the testimony of nine witnesses for the

Plaintiffs, including five expert witnesses, and written closing

statements. H.O. Decision 3-4; Pls.’ Statement of Facts ¶¶ 8-10. In

addition, Plaintiffs’ counsel had to prepare for the testimony of

the twelve witnesses for whom Defendant provided notice of its

intention to call. Pls.’ Statement of Facts ¶ 11.

-10- 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, as noted in Cox, “Defendant offers no reasoned

defense for its own Guidelines.”

. The

affidavit of Quinne Harris-Lindsey 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. See Def.’s Opp’n Ex. B. Nor is there evidence that these

Guidelines went through any kind of process for the issuance of

administrative regulations, where public comment could be submitted

and considered. See

(setting out procedures for

notice and comment rulemaking). In short, application of the Laffey

Matrix is appropriate here.

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 $300 for time

billed before April 24, 2009, and an hourly rate of $350 for time

billed after April 24, 2009, for Alvarez, who has practiced law for

-11- over twenty-four years. See Pls.’ Mot. for Summ. J. 1; Alvarez

Decl. ¶ 8 [Dkt. No. 12-3]. Alvarez has represented clients in

proceedings before the DCPS Student Hearing Office for thirteen

years. Alvarez Decl. ¶ 9. Given this experience, $300 is a

reasonable rate for Alvarez’s time billed before April 24, 2009,

and $350 is a reasonable rate for Alvarez’s time billed after April

24, 2009, on this matter.

B. Specific Charges

Defendant makes five challenges to the reasonableness of

specific charges. 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, (3) certain of

Plaintiffs’ entries are too vague to merit compensation, (4)

certain of Plaintiffs’ entries are duplicates, and (5) Plaintiffs

are not entitled to reimbursement for routine costs and overhead.

See Def.’s Opp’n 10-15. Each will be considered individually.

1. “Clerical” and “Paralegal” Activities

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 11.

Defendant similarly argues that certain activities should have been

billed at a paralegal rate––though Defendant does not provide any

rationale for the way in which it categorizes these entries.

at

-12- 15. Defendant relies 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. Defendant also argues that the activities reimbursed for

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

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 does not have office staff and must perform

such activities herself. Alvarez Decl. ¶ 64.

Further, Defendant fails to explain why tasks such as “Reading

and responding to correspondence from the DCPS Office of General

Counsel,” “Obtaining evidence of J.B.’s progress at British School

of Washington,” and “Correspondence with an expert witness

concerning his testimony” should be categorized as “administrative

clerical.” See Pls.’ Mot. for Summ. J. 12. Certainly these

activities, which DCPS deemed clerical, are not “much more

elementary” than “opening computer files and drafting retainer

agreements,” for which Plaintiffs were compensated in Bailey.

-13- Def.’s Opp’n 11. Similarly, Defendant provides no explanation for

categorizing entries such as “Telephone call with client; discuss

Branson eval and findings” and “Plan and Prepare for hearing;

correspondence Ed. Consultant” as work that “should have been

billed at the paralegal rate.” Def.’s Opp’n Ex. A, at 12-13. For

these reasons, it is appropriate and reasonable to reimburse these

charges at an attorney’s rate.

2. Charges Relating to Activities in Advance of the Hearing

Defendant next challenges certain costs on the ground that

charges “more than a year prior” to the Due Process Hearing “are

too remote in time to have any relationship to the administrative

proceedings,” which occurred on May 11-13 and June 8, 2009. Def.’s

Opp’n 12. 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. Id. at 12-13.

This Court previously rejected this argument in Cox.

. In Cox, this Court noted that one of the cases

relied upon by Defendant 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

-14- charge was tied to a particular hearing. Civ. No. 04-1940,

, at *4 (D.D.C. July 12, 2006).

Nonetheless, the Court may “‘make an independent determination

whether or not the hours claimed are justified.’” Holbrook,

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

). Plaintiffs’ attorney states that thirteen hours billed

between April 21 and August 31, 2008, “represented time spent

counseling Plaintiffs on DCPS’ obligations to permit them to

register J.B.” and other activities related to attempting to enroll

J.B. at the neighborhood DCPS school. Alvarez Decl. ¶ 28. Although

plaintiffs in IDEA cases must make strategic decisions that are

essential to their future success in a Due Process Hearing well

before the hearing itself, the Court finds that devoting thirteen

hours to these particular activities was not justified. These

thirteen hours should be reduced by 25%, or 3.25 hours. Therefore,

3.25 hours billed before April 24, 2009, at an hourly rate of $300,

or $975.00, should be deducted from Plaintiffs’ request.

3. “Vague” Charges

Defendant argues that entries with descriptions such as

“Review of email from ed consultant” or “Schedule witness” are too

vague to determine whether they are reasonably related to the Due

Process Complaint. Def.’s Opp’n 13.

To be sufficient, an invoice “need not present the exact

number of minutes spent nor the precise activity to which each hour

-15- 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 sufficiently clear that counsel was working on issues

related to J.B.’s Due Process Complaint. Defendant’s criticisms are

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.

4. “Duplicate” Entries

Defendant next challenges twelve entries as “apparently

duplicated elsewhere in the invoice.” Def.’s Opp’n 14. Defendant

provides no explanation for why it believes these entries represent

duplicated work, other than, presumably, that the language in these

entries is similar to the language in other entries. Plaintiffs

have satisfied their 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,

. Indeed, the entries which Defendant calls

“duplicative” were clearly marked in Plaintiffs’ reimbursement

request with separate dates and, in some cases, distinct

-16- descriptions. See Def.’s Opp’n Ex. A, at 11; Compl. Ex B.

Therefore, the supposedly “duplicate” entries are reasonable and

appropriate.

5. “Routine” Costs

Defendant challenges eight entries as “routine business

expenses . . . not reimbursable under IDEA.” Def.’s Opp’n 14. Two

of these challenged entries, “Communicate ed consultant Re filing,

etc.” and “Review eval file,” are clearly compensable for the

reasons spelled out above. See supra Part III.B.1.

As for the remaining six entries, which all represent travel

to and from hearings, Defendant argues that “[s]uch expenses are

not allowable.” Def.’s Opp’n 14. Defendant is incorrect. “In this

circuit, travel time generally is compensated at no more than half

the attorney’s appropriate hourly rate.” Blackman v. District of

Columbia,

(D.D.C. 2005) (citing Cooper v.

United States R.R. Ret. Bd.,

(D.C. Cir. 1994));

A.C. ex rel. Clark v. District of Columbia,

(D.D.C 2009); Laster v. District of Columbia, Civ. No. 05-1875,

, at *4 (D.D.C. July 25, 2006).

Because travel time is compensated at half the attorney’s

rate, however, compensation for the six entries reflecting travel

should be reduced. Blackman,

. Therefore, four

hours billed after April 24, 2009, at an hourly rate of $350, or

$1,400.00, should be deducted from Plaintiffs’ request.

-17- IV. CONCLUSION

Plaintiffs’ Motion for Summary Judgment is granted in part.

Plaintiffs’ request for $23,719.00 in reimbursement is reduced by

$2,375.00. Defendant must reimburse Plaintiffs’ for attorneys’

costs and fees in the amount of $21,344.00.

/s/ April 11, 2011 Gladys Kessler United States District Judge

Copies via ECF to all counsel of record

-18-