UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

K.P., et al.,

Plaintiffs,

v. Case No. 15-cv-1365 (CRC)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

Plaintiffs Bridgette Palmer and her daughter Khadija 1 seek $375,042.27 in attorneys’ fees

and costs after prevailing in a years-long effort for “stay-put” relief under the Individuals with

Disabilities Education Act (“IDEA”),

, et seq. Defendant District of Columbia

disputes several aspects of their motion: (1) the number of hours billed; (2) the hourly rates at

which they were billed; (3) the use of current rates; and (4) the award of expert witness fees

under D.C. law.

The Court will grant the Palmers’ motion in part. Specifically, it will award fees for all

hours billed except for fifteen hours on remand; it will do so at 75% of the rates requested; it will

apply current rates rather than historical ones; and it will award the Palmers expert witness costs

under D.C. law, as well as other costs—undisputed by the District—under the IDEA. The total

award comes to $277,718.60.

I. Background

The IDEA guarantees developmentally disabled children a free appropriate public

1 As reflected in the case caption, courts typically refer to minors by their initials alone. However, because Khadija is now over eighteen and her briefing includes her full name, the Court follows suit. Education (“FAPE”).

(a)(1)(A). To effectuate this guarantee, the IDEA

requires local school systems to develop an individualized education program (“IEP”)

for each disabled student.

§ 1412(a)(4).

Khadija Palmer is autistic. Shortly after she began high school in October 2012, Khadija

was placed in a specialized program for high-functioning autistic students at Cardozo High

School within the District of Columbia Public School System (“DCPS”). See Compl. ¶ 11. In

October 2014, DCPS eliminated Khadija’s program and transferred her to a larger program that

differed from her previous placement in several ways: larger class sizes; instruction by multiple

teachers in multiple classrooms; a mix of students with a variety of different disabilities; and

greater interaction with non-disabled peers. Id. ¶¶ 14–17.

Khadija’s parents objected to the change, leading to an administrative hearing in May

2015. A hearing officer concluded that the change in placement and DCPS’s previous failure to

include in Khadija’s IEP information about appropriate classroom settings had denied her a

FAPE. Id. ¶¶ 23–30. The hearing officer ordered DCPS to craft a new IEP for Khadija but

denied the Palmers’ request for an order requiring DCPS to fund Khadija’s placement in a

private-school program resembling the Cardozo program in which she had been previously

enrolled.

In July 2015, DCPS convened a “summer IEP team” that included no one who had

interacted with Khadija during the school year. Id. ¶¶ 32–33. At that IEP meeting, it disclosed

that Khadija would be placed in a similar setting to her post-October 2014 placement—with a

larger class size than her pre-October 2014 placement, multiple teachers, and more interaction

with non-disabled students. Id. ¶¶ 34–39.

In August 2015, the Palmers filed suit in this Court, contesting the administrative hearing

2 officer’s denial of private-school placement, as well as DCPS’s new IEP for purported failure to

comply with the hearing officer’s decision. They sought injunctive relief in the form of a “stay-

put” order that would entitle Khadija, while IDEA proceedings pended, to a placement in a

public- or private-school program with the same elements as her pre-October 2014 placement at

Cardozo. See

(j) (“[D]uring the pendency of any proceedings conducted

pursuant to [the IDEA] . . . the child shall remain in the then-current educational placement of

the child”).

This Court, adopting the recommendation of a magistrate judge, denied stay-put relief in

September 2015, K.P. v. District of Columbia, No. 15-1365,

(D.D.C. Sept.

18, 2015), prompting the Palmers to file an appeal on October 16, 2015. Nearly four months

later, on February 10, 2016, the D.C. Circuit stayed the case pending resolution of another

matter. After it lifted the stay, the Circuit heard oral arguments in the case on December 9, 2016

and reversed this Court’s denial of stay-put relief on March 31, 2017. K.P. v. District of

Columbia,

(D.C. Cir. 2017). All told, nearly 18 months had passed between the

Palmers’ appeal and its resolution.

By the time the case returned to this Court on remand in April 2017, Khadija was nearing

her high school graduation and had been accepted for admission to Trinity Washington

University. DCPS explained that a stay-put order—i.e., moving Khadija to a program that

resembled her pre-October 2014 placement—would jeopardize her ability to graduate on time

and attend college. At a post-remand hearing, it became clear that this outcome was not in

Khadija’s best interests and went against her wishes. Consequently, while the Court granted the

stay-put injunctive relief, see April 11, 2017 Order, ECF No. 33, it stayed the injunction to allow

Khadija to graduate, see April 18, 2017 Order, ECF No. 38. Instead, it allowed the Palmers to

3 amend their complaint to seek compensatory education that would remedy the harm caused by

her inability to attend an appropriate program between October 2014 and her spring 2017

graduation. In December 2017, an administrative hearing officer granted Khadija that relief,

ordering the District of Columbia to fund 170 hours of tutoring and 20 hours of mentoring

services for her. See Mot. for Briefing Schedule, ECF No. 59, at 1.

II. Analysis

A. Attorneys’ Fees

The Palmers seek fees for the work of lawyers Alana Hecht, Charles Moran, Stevie

Nabors, and Charles Sibert, as well as paralegal Joseph Golinker. Ms. Hecht’s services focused

on the Palmers’ initial administrative action, while the others’ work focused largely on

subsequent proceedings in this Court and the D.C. Circuit. See Pls.’ Mot. for Attorneys’ Fees

(“Pls.’ Mot.”) Ex. 4, ECF No. 61-6 (“Hecht Statement of Account”); Pls.’ Mot. Ex. 5, ECF No.

61-7 (“Moran DDC Statement of Account”); Pls.’ Mot. Ex. 6, ECF No. 61-8 (“Moran DC Cir.

Statement of Account”); Pls.’ Mot. Ex. 7, ECF No. 61-9 (“Moran Remand Statement of

Account”).

The IDEA allows a court to award “reasonable attorneys’ fees . . . to a prevailing party

who is the parent of a child with a disability.”

(i)(3)(B)(i). These fees must “be

based on rates prevailing in the community in which the action or proceeding arose for the kind

and quality of services furnished.”

§ 1415(i)(3)(C). Courts must apply a “two-part

framework” for determining whether fees are reasonable, considering “(1) the ‘number of hours

reasonably expended in litigation’; and (2) the ‘reasonable hourly rate’ for the services

provided.” Reed v. District of Columbia,

(D.C. Cir. 2016) (quoting Eley v.

4 District of Columbia,

(D.C. Cir. 2015)). The District challenges the Palmers’

calculation of both the number of hours billed and the rates at which they were billed.

1. Number of Hours Billed

The Palmers have submitted billing records that include fees for all aspects of their

action, including the underlying administrative proceeding, initial proceedings in this Court, an

appeal to the D.C. Circuit, and this Court’s remand proceedings. See generally Hecht Statement

of Account; Moran DDC Statement of Account; Moran DC Cir. Statement of Account; Moran

Remand Statement of Account.

The District objects, asking the Court to award fees for only the underlying

administrative proceedings. 2 See Defs.’ Opp’n, ECF No. 63, at 26–27. The crux of the

District’s contention is that the Palmers pursued a misguided litigation strategy that led to a

pyrrhic victory. By the time the Palmers got the injunctive relief they sought, Khadija was

months from successfully completing her senior year, which led the Court to stay the injunctive

relief to allow her to graduate. Per a subsequent administrative proceeding, she is entitled to

2 The parties have briefed this issue under two theories. First, they debate whether these hours were reasonable and thus compensable under the IDEA. Second, the District—apparently responding to an anticipatory argument in the Palmers’ opening brief—contends that the Court should punitively reduce fees under

(i)(3)(F)(i), which allows the Court to reduce fees if it finds that Plaintiffs “unreasonably protracted the final resolution of the controversy[.]” The Palmers, for their part, insist that this provision is inapplicable because the District violated the IDEA, meaning the aforementioned provision cannot apply, under

(i)(3)(G). The parties’ wrangling over the interplay of these two subsections misses the point: at bottom, the District appears to insist that, because the Palmers’ attorneys billed fees for an unreasonable strategy, what they seek is not encompassed by the IDEA’s allowance for “reasonable attorneys’ fees.”

(i)(3)(B)(i) (emphasis added). Thus, the District’s contention goes more to the threshold question of whether the Palmers seek “reasonable attorneys’ fees” than to the secondary question of whether the Court can or should reduce those fees under subsections 1415(i)(3)(F) and (G). In any event, the same reasons informing the Court’s conclusion that these hours were reasonable—namely, that the Palmers had a right to choose their own litigation strategy and litigated it to success—would determine the Court’s decision not to reduce fees under subsection (F)(i).

5 compensatory education instead. The District insists that the Palmers should have taken a

different route and pursued more ordinary administrative proceedings rather than injunctive

relief. The Palmers’ chosen strategy, it contends, unreasonably protracted this litigation and

denied Khadija meaningful relief. Essentially, the District asks the Court to penalize the Palmers

for a successful, if lengthy, litigation strategy on the theory that better approaches existed.

The Court will not do so. It was the Palmers’ prerogative to choose their own strategy,

and they prevailed. And while delays in the proceedings caused the Court to stay the injunctive

relief to which Khadija was entitled, the Palmers’ strategy is not solely responsible for the length

of this action. This Court denied stay-put relief, a decision reversed on appeal approximately 18

months later. Given this history, the Court cannot conclude, based on the benefit of hindsight,

that the Palmers’ chosen path was unreasonable. The Court will not play Monday-morning

quarterback, especially where the team in question won the game.

However, the Court will reduce the number of hours billed on remand, reflecting the fact

that Khadija’s lawyers undertook activities against her best interests and stated desires. Once it

became clear that a stay-put injunction meant Khadija would be unable to graduate high school

and matriculate at college, her lawyers’ opposition to staying that injunction was unreasonable.

As the Court noted at the time, neither Khadija nor those experts who assessed her best interests

contended that delaying her graduation was in her best interests. See April 18, 2017 Order, ECF

No. 38, at 1. And the purported reason for opposing a stay of injunctive relief—that a stay

would jeopardize Khadija’s ability to claim compensatory education—had no basis in law or

fact. See

at 1–2 (“The Court fails to understand the basis for this objection to the District’s

motion . . . . Whether K.P. remains at Cardozo so that she can graduate in approximately six

weeks would appear to have no bearing on Plaintiff’s entitlement to any compensatory-education

6 remedy.”). Because it was unreasonable for Khadija’s attorneys to oppose the stay, the Court

will not award them fees for the hours spent in that endeavor.

But while the District identifies “nearly 60 hours” 3 spent opposing the stay, the Court

cannot conclude that this figure is accurate. First, it appears to reflect nearly all hours billed on

remand, but there were several aspects of remand proceedings that had nothing to do with the

emergency stay motion, and the attorneys’ work on those aspects did pursue Khadija’s best

interests. Second, not all of the work opposing the emergency stay was unreasonable. The

statement of account that the Palmers have submitted shows, for example, time devoted to

contacting private schools about appropriate placements, see, e.g., Moran DDC Statement of

Account at 4, presumably for a few-month enrollment that would still allow Khadija to graduate

on time. Similarly, notwithstanding their erroneous insistence that a stay of injunctive relief

would jeopardize the ability to seek compensatory education, the Palmers’ attorneys reasonably

conducted some initial research into that matter. In other words, the attorneys’ hours became

unreasonable only after it was clear that staying the order would not jeopardize the ability to seek

compensatory relief and that there were no acceptable alternatives that would allow Khadija to

graduate on time. Based on its review of the hours billed, the Court concludes that only about

one quarter of the hours billed on remand fell into this bucket and will thus reduce the Palmers’

award by $5,000, which is the approximate total for fifteen hours of work.

2. Hourly Rate

Determining whether an attorney’s “hourly rate is reasonable turns on three sub-

elements: (1) ‘the attorney[’s] billing practices,’ (2) ‘the attorney[’s] skill, experience, and

3 The District simply cites to two full pages of the statement of account, which is unhelpful in determining precisely to which billed hours it objects. See Def.’s Opp’n, ECF No. 63, at 23 (citing Moran DDC Statement of Account at 4–5).

7 reputation’ and (3) ‘the prevailing market rates in the relevant community.’” Eley,

(alteration in original) (quoting Covington v. District of Columbia,

(D.C.

Cir. 1995)). The Palmers have submitted attorney statements of account and declarations that

contain sufficient detail on the first two factors, and the District does not appear to dispute their

attorneys’ general billing practices or credentials. Rather, the parties’ dispute surrounds the third

factor: the prevailing market rates for IDEA litigation in the District of Columbia.

“Fee applicants in IDEA cases have relied on two separate, but inter-related, approaches

to providing evidence of prevailing market rate,” Reed,

, both of which the

Palmers employ. First, the Palmers attempt to show that IDEA litigation constitutes “complex

federal litigation,” a category of litigation “presumptively” compensable at the rates set forth in a

Fee Matrix published by the United States Attorney’s Office (“USAO”), which courts routinely

apply to determine the prevailing rate for such litigation.

. Second, the Palmers

attempt to show that IDEA litigators charge and receive fees at the rates set forth in the Matrix,

meaning it sets the prevailing market rate even if IDEA litigation is not complex federal

litigation—a “means of establishing the ‘prevailing market rate’ [that] is not conceptually linked

to the [USAO] Matrix.”

In pursuit of the first path the Palmers rely on declarations from two lawyers, Michael T.

Kirkpatrick and Gary E. Mason. See Pls.’ Mot. Ex. 20, ECF No. 61-22 (“Kirkpatrick Decl.”);

Pls.’ Mot. Ex. 21, ECF No. 61-23 (“Mason Decl.”). These declarations are insufficient. Mr.

Mason gives no indication that he has litigated an IDEA case, see generally Mason Decl., and

Mr. Kirkpatrick’s experience is limited to briefing in opposition to petitions for certiorari at the

Supreme Court, see Kirkpatrick Decl. ¶ 7, which is hardly representative of the full range of

IDEA litigation. While neither declaration contains “[m]ere conclusory statements that IDEA

8 litigation” is complex federal litigation and each attempts “an explanation of why this is so,”

Reed,

, each falls short of its mark.

Both Kirkpatrick and Mason explain that IDEA litigators often need to master non-legal

subject matters. Kirkpatrick Decl. ¶ 9; Mason Decl. ¶ 16. Kirkpatrick adds that “IDEA cases

often require a lawyer to review, understand, and synthesize voluminous and complicated

educational and psychological records.” Kirkpatrick Decl. ¶ 9. In a similar vein, Mason cites the

“extraordinarily complicated” determination of remedies, including the need to use experts and

understand “the different types of specialized instruction and tutoring . . . as well as the range of

therapies” at issue. Mason Decl. ¶ 17. The Court does not doubt that such mastery presents

unique challenges at different phases of litigation, including at the remedies phase, but these

elements are part-and-parcel of a litigator’s need to master non-legal subjects. And as the D.C.

Circuit explained in Reed, while “attorneys who litigate IDEA cases may have ‘specialized non-

legal knowledge[,]’ . . . . this is true in a number of specialized fields.”

. Here,

like in Reed, declarants’ explanation that IDEA litigators must have specialized knowledge is

insufficient evidence that IDEA litigation is “complex civil litigation.”

Both Kirkpatrick and Mason reference the complexity of the IDEA statute, its attendant

regulations, and their intersection with state statutes and regulations. Kirkpatrick Decl. ¶ 9;

Mason Decl. ¶ 15. True, the IDEA has an extensive legislative history and IDEA litigation

implicates laws, regulations, and policies at multiple levels of government, but that is true of

many areas of legal practice. Litigators in almost any field must navigate federal statutory and

regulatory authority and must often look to state and local authority as well.

Finally, Mason’s declaration explains that IDEA litigation’s lack of discovery makes it

difficult “to systematically develop a case through a variety of discovery tools that gradually

9 narrow down arguments and defenses,” and “makes successful cross-examination a far more

difficult task.” Mason Decl. ¶ 19. But while lack of discovery may pose certain challenges, it

may also simplify things. As the Circuit has explained when confronted with similar arguments,

“the absence of discovery may suggest that IDEA cases are not as complex as cases in which

discovery is extensive.” Reed,

.

The Palmers correctly note that there has been significant debate in this Circuit as to

whether IDEA cases should categorically constitute complex federal litigation as a matter of law.

See, e.g., Reed, 843 at 528 (Tatel, J., concurring) (“I would hold, as a matter of law, that IDEA

litigation is sufficiently complex to warrant Laffey rates.”); Eley,

(Kavanaugh,

J., concurring) (“[I]n my view, the United States Attorney’s Office Laffey matrix is appropriate

for IDEA cases.”). But the law as it stands still requires them to prove complexity, a task the

Circuit has explained “will not be easy.” Reed,

. In Laffey v. Northwest

Airlines, Inc., which prompted creation of the USAO Matrix’s predecessor fee matrix, the

litigants presented a “barrage of data, including twenty-five attorney affidavits secured

specifically for [the] litigation, information gleaned from affidavits filed in other cases, and fee

data reflected in previous judicial decisions.”

, 371–72 (D.D.C. 1983). Only

then did the court deem “the relevant legal market” to be “complex employment litigation[,] . . .

subject to the same hourly rates that prevail in other complex federal litigation.”

. The

Palmers’ submission of two declarations, both of which largely retread arguments that the Circuit

has already considered and rejected, is insufficient to prove categorical complexity.

Plaintiffs also pursue the alternative path to claiming USAO Matrix rates: showing that,

whether or not IDEA cases are “complex federal litigation,” the prevailing market rate is that set

forth in the Matrix. To succeed, the Palmers must “produce satisfactory evidence—in addition

10 to [their] attorney’s own affidavits—that [the] requested rates are in line with those prevailing in

the community for similar services by lawyers of reasonably comparable skill, experience, and

reputation.” Lee v. District of Columbia,

(D.D.C. 2018) (quoting Eley,

). Here, the Palmers have proffered declarations only from their own lawyers.

Even construing generously portions of the declarations that reference other lawyers’

practices, the Court finds the Palmers have not met their burden. Mr. Nabors, for example,

indicates that he has surveyed the IDEA bar and most litigators charge fees in line with the

USAO Matrix. Pls.’ Mot. Ex. 10, ECF No. 61-12 (“Nabors Decl.”) ¶ 4; see also Pls.’ Mot. Ex.

9, ECF No. 61-11 (“Hecht Decl.”) ¶ 15 (Matrix rates in line with rates charged by other IDEA

litigators). Courts in this district have repeatedly observed that “evidence of rates typically

‘charged’ by IDEA attorneys provides relatively little insight into the rate these attorneys could

command in a more traditional market for legal service.” Flood v. District of Columbia,

(D.D.C. 2016). Absent evidence that the IDEA litigators actually receive

such rates, the fact that they charge them has little probative value. See James v. District of

Columbia,

(D.D.C. 2018); Lee,

.

And while the declarations and Plaintiffs’ briefing highlight a few cases in which IDEA

litigators were awarded fees based on the USAO Matrix, in “an overwhelming number of cases,”

courts in this district have awarded IDEA fees at 75% of the Matrix rates. James,

(quoting Cox v. District of Columbia,

(D.D.C. 2017)).

Regardless of what lawyers nominally bill, most IDEA cases are compensated at 75% of the

USAO rates and there appears to be no shortage of lawyers willing to take such cases. Plaintiffs

have not presented sufficient evidence to indicate otherwise.

11 3. Use of Current Rates

The Palmers ask the Court to award fees based on current rates to account for the delay

between the time when legal services occurred and when payment will be made. The Supreme

Court has allowed adjustment when compensation occurs “several years after the services were

rendered.” Missouri v. Jenkins,

(1989). Courts in this district have not

always approached this question consistently. Compare McNeil v. District of Columbia, No. 14-

886,

at *3 (D.D.C. Sept. 28, 2018) (applying current rates when attorneys had

been retained four and six year prior to resolution of fees dispute), with Reed v. District of

Columbia,

(D.D.C. 2015) (declining to apply current rates when all

charges had been billed during the preceding three years “and during that time Plaintiffs were

advancing their claims”).

In this case, at least some of the delay lies at the courts’ feet. Contra Reed,

(noting “no indication of undue delay caused by the District, the Hearing Officers, or

this Court”). This Court initially denied the Palmers’ stay-put relief, a decision reversed on

appeal after an 18-month wait. Given these factors, it is appropriate to award the Palmers fees

based on current rates rather than historical ones, a conclusion bolstered by evidence that such a

decision will not provide the attorneys windfall profits, see Hecht Decl. ¶¶ 36–38; Nabors Decl.

¶¶ 16–22. Here, use of current rates is thus appropriate to “adequately compensate the plaintiffs

for the expected delay in receipt of payment, . . . [and] produce a reasonable fee . . . without

generating a windfall for the . . . attorneys.” Murray v. Weinberger,

(D.C.

Cir. 1984).

12 Consistent with awarding the Palmers attorneys’ fees at 75% of the current USAO Matrix

Rates, ($365,294.70 x 0.75), plus 50% of USAO Matrix rates for travel time ($1,621.40), 4

subtracting $5,000 for unreasonable hours, the final calculation amounts to $270,592.43.

B. Expert Witness Fees

The Palmers also incurred $6,413.75 in expert witness fees for testimony and evaluation

to determine whether Khadija suffered academic harm and the appropriate remedy for that harm.

See Pls.’ Mot. Ex. 14, ECF No. 61-16; Pls.’ Mot. Ex. 16, ECF No. 61-18. The IDEA does not

contain a provision for expert witness fees, but under the D.C. Code, the Court may award them

such fees up to $6,000, see

(7)(A), for “actions and proceedings initiated

after July 1, 2016,”

§ 38-2571.03(7)(F). The parties dispute whether the temporal limitation

precludes the expert fees: the District notes that the Palmers filed their administrative complaint

in 2014 and filed their lawsuit in this Court in 2015, while the Palmers explain that the expert

fees were incurred in 2017 during a hearing on remand following the D.C. Circuit’s reversal of

this Court’s initial order.

The statute’s inclusion of the term “actions and proceedings” indicates fees are available

for both overall actions and their component parts initiated after July 1, 2016. “A court

proceeding is defined as ‘[a]n act or step that is part of a larger action’ and ‘an act done by the

authority or direction of the court.’” Bloate v. United States,

, 218–19 (2010)

4 With several exceptions in which attorneys Charles Moran, Stevie Nabors, and Charles Sibert billed travel time at 100% of USAO Matrix rates, see Moran DC Cir. Statement of Account at 10–11; Moran Remand Statement of Account at 10–11, the attorneys billed their travel time at 50% of USAO Matrix rates. In total, Moran billed two hours of travel time, Nabors billed 5.2 hours, and Sibert billed one hour. At 50% of USAO Matrix rates, this totals $1,621.40. The Court deducts this amount from the total in the calculation of work billable at 75% of USAO rates, and further deducts $1,000 as a rough estimate to account for instances in which Nabors, Moran, and Sibert billed at 100% of USAO Matrix rates.

13 (Ginsburg, J., concurring) (quoting Black’s Law Dictionary 1324 (9th ed. 2009)). In this case,

the proceeding at issue was the remand hearing following the D.C. Circuit’s reversal—one

“step” that was part of the “larger action” that is this whole suit. Because they incurred these

fees as part of that proceeding, which commenced after July 1, 2016, and because they have

submitted declarations indicating that the rates charged align with prevailing market rates for

such services, the Court will award the Palmers $6,000 for these fees.

Adding this $6,000 figure as well as $1,126.17 in IDEA costs 5 to the $270,592.43

attorneys’ fee figure, the Court will award Plaintiffs $277,718.60.

III. Conclusion

For the foregoing reasons, the Court will grant in part Plaintiffs’ Motion for Attorneys’

Fees and Costs. A separate Order shall accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: November 27, 2018

5 The District does not dispute that the Palmers are owed $1,126.17 in costs under the IDEA. See Def.’s Opp’n at 27.

14