UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANISSA JONES, mother of the minor child D.M.,

Plaintiff, Civil Action No. 15-cv-01505 (BAH)

v. Chief Judge Beryl A. Howell

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

The plaintiff, Anissa Jones, seeks attorney’s fees and costs, totaling $87,738.93, pursuant

to the Individuals with Disabilities Education Act (“IDEA”),

(i)(3)(B)(i)(1),

from the defendant District of Columbia (“the District”) for her counsel’s services over thirty

months, from November 2014 through June 2018, in preparing for, substantially prevailing at,

and implementing relief granted by a due process administrative proceeding, as well as

implementing additional relief awarded in the plaintiff’s successful appeal in this Court. Pl.’s

Mot. Atty’s Fees & Costs (“Pl.’s Mot.”), ECF No. 51; Pl.’s Suppl. to Pl.’s Mot. for Atty’s Fees

& Costs (“Pl.’s Suppl. Mot.”), ECF No. 52. The parties have already reached a settlement

regarding the amount of attorney’s fees incurred litigating the plaintiff’s IDEA claims in this

Court, see Notice of Settlement, ECF No. 40; Pl.’s Resp. to July 26, 2017 Order to Show Cause

(“Pl.’s Resp. OTSC”) at 1, ECF No. 42, but the District objects to the hourly rate at which the

plaintiff seeks reimbursement for the remaining fees incurred litigating her IDEA claims

administratively and implementing the relief awarded.

Specifically, the District contends that the reimbursement rate should be, at most, 75% of

the hourly rate provided in the Attorney’s Fees Matrix for 2015-2019, prepared by the Civil 1 Division of the U.S. Attorney’s Office for the District of Columbia (“USAO Matrix”), rather

than the full hourly rate set out in that matrix, see Def.’s Opp’n Pl.’s Mot. Atty’s Fees (“Def.’s

Opp’n”) at 5-18, ECF No. 53, with additional across-the-board reductions, up to complete denial

of any fees, because the plaintiff achieved only “partial success” and allegedly protracted the

litigation by rejecting the District’s settlement offer, see Def.’s Opp’n at 18-20.

The Magistrate Judge to whom this matter was referred recommended that plaintiff’s

motion be granted in part and denied in part, after agreeing with the District’s position on the

reimbursement rate of 75% of the USAO Matrix, compounded by a further across-the-board

reduction of 10% based on the degree of success obtained, and proposing that the plaintiff be

awarded a total of $63,191.87 in fees and costs. See Magistrate Judge’s Report and

Recommendation (“Atty’s Fees R&R”) at 1, 26, ECF No. 55. At the same time, the Magistrate

Judge rejected the District’s argument that no additional fees should be paid after finding that the

District never made a valid settlement offer to the plaintiff.

.

The plaintiff timely filed objections, see Pl.’s Objections to the October 23, 2018 Report

and Recommendation of Magistrate Judge Harvey (“Pl.’s Obj.”), ECF No. 58, which were fully

briefed as of January 22, 2019. For the reasons set forth below, the plaintiff’s objections to the

Magistrate Judge’s recommendation are sustained, the plaintiff’s motion is granted, in substantial

part, and the plaintiff is awarded $87,543.03 in attorney’s fees and costs.1

I. BACKGROUND

1 The plaintiff requested $87,738.93 in attorney’s fees and costs, but the amount awarded will be reduced by $195.90 to reflect photocopying costs of $0.15 per page, rather than the $0.25 per page originally sought, see Pl.’s Invoice at 20, in accordance with the Magistrate Judge’s recommendation, Atty’s Fees R&R at 25, to which no objection was raised by either party, Pl.’s Mem. Supp. Obj. to Atty’s Fees R&R (“Pl.’s Obj. Mem.”) at 3, ECF No. 58-2; see generally Def.’s Opp’n; Local Civ. R. 72.3(b) (“The objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection” and “[f]ailure to file timely objections may waive appellate review of a District Court order adopting the magistrate judge’s report.”).

2 The plaintiff is the mother of D.M., a District of Columbia Public Schools (“DCPS”)

student, who is eligible for special education and related services under the IDEA as a child with

a disability, Emotional Disturbance (“ED”). Pl.’s Mot., Ex. 1 (Hearing Officer Determination,

issued June 22, 2015 (“2015 HOD”)) at 1, ECF No. 51-3;2 see also Mag. J. Report &

Recommendation, dated Jan. 31, 2017 (“2017 R&R”) at 2, ECF No. 30 (granting part of

additional relief plaintiff requested in appeal from 2015 HOD). The facts underlying the

administrative action and implementation efforts, for which the plaintiff now seeks attorney’s

fees and costs, have been fully set out in both the 2015 HOD and the 2017 R&R and thus are

only briefly summarized below.

A. First Administrative Action

D.M. was evaluated for various behavioral and learning disabilities as early as 2011 and

found eligible for special education under the IDEA in 2012, when D.M. was in the second

grade. 2015 HOD at 12 ¶ 33; 2017 R&R at 2. His initial Individualized Education Program

(“IEP”), developed in April 2012, required that D.M. be provided with 16 hours per week of

specialized instruction outside of general education, plus substantial additional behavioral

support services. 2015 HOD at 12 ¶ 35. Although he apparently progressed under that IEP

regime,

at 13 ¶ 40, his IEPs were subsequently modified to reduce the hours of special

education,

at 14-15 ¶ 49; 2017 R&R at 4-5. By the 2014-2015 school year, when D.M. was

in the fifth grade, he was placed in a general education classroom, over the plaintiff’s objection,

2015 HOD at 25 ¶ 108; 2017 R&R at 5. D.M.’s behavior began a marked decline reflected by

D.M. being aggressive, hyperactive, and disruptive with suicidal ideation. See, e.g., 2015 HOD

at 25 ¶¶ 109-118;

at 30 ¶ 144;

at 31 ¶ 149;

at 43 ¶¶ 196-97.

2 Pincite citations to the 2015 HOD contain both the page number and paragraph since the paragraphs are not numbered sequentially throughout the document.

3 D.M.’s behavioral decline prompted the plaintiff and her counsel, after counsel’s

retention in November 2014, to make repeated requests in late 2014 through April 2015 for

DCPS to reevaluate D.M. and provide him with additional services, plus a dedicated aid. See,

e.g.,

at 27 ¶¶ 119-123;

at 33 ¶ 159;

at 40 ¶¶ 180-81;

at 44 ¶ 203. DCPS made no

changes to his IEP,

at 34 ¶¶ 163-169;

at 39 ¶ 177, until April 24, 2015, when five hours

per week of specialized instruction—far less than the original IEP that had proven successful—

and a dedicated aid were added to his IEP,

at 46 ¶¶ 212-213. The dedicated aid was

subsequently removed, however, after approximately one month, in May 2015, over the

plaintiff’s objection, and D.M. was essentially excluded from instruction by being placed with a

Spanish teacher when this teacher had no class, the janitor, or another non-teacher adult.

at

50-51 ¶¶ 236-241.

On the same date of the IEP modification, April 24, 2015, the plaintiff filed a Due

Process Complaint (“DPC”) under the IDEA, claiming that DCPS denied D.M. a Free

Appropriate Public Education (“FAPE”) due to several enumerated actions and inactions by

D.M.’s school and DCPS.

. Following a two-day due process hearing, held on June 5 and

15, 2015,

, at which the plaintiff introduced 56 exhibits and presented the testimony of

three witnesses, the hearing officer concluded that, as a matter of law, DCPS failed to provide

D.M. with a FAPE as required by the IDEA,

at 71 ¶ 50, and ordered, inter alia, that (1)

D.M.’s IEP be amended to provide that “[a]ll of the Student’s academic instruction [] be

specialized instruction provided in the outside of general education setting,”

at 72 ¶ 1(a); (2)

D.M.’s “instruction [] be provided in a small classroom (i.e. not to exceed 12 students), with a

low ratio of students to adults,”

at 73 ¶ 1(b); (3) D.M. be escorted “[a]t all times during the

school day [] in all non-classroom environments,”

at 73 ¶ 1(c); (4) the plaintiff inform DCPS

4 of “which one (1) of the” requested “Independent Educational Evaluations (“IEEs”) Petitioner

wishes to obtain” and then DCPS “shall issue to [Plaintiff] an IEE letter authorizing [Plaintiff] to

obtain the requested IEE,”

at 73-74 ¶¶ 3-4; (5) the IEP Team “develop a [behavior

intervention plan (“BIP”)] for” D.M.,

at 74 ¶ 6; and (6) DCPS convene and revise D.M.’s IEP

as appropriate,

at 74-75 ¶¶ 6-7. The 2015 HOD did not grant all the relief requested by the

plaintiff, such as placing D.M. at a private school or other appropriate full-time special education

program; requiring DCPS to fund multiple, rather than just one, IEEs for comprehensive

evaluations comprising psychological, speech/language, occupational therapy, assistive

technology and other testing; and requiring more prompt revisions to the IEP.

.

Despite the 2015 HOD’s direction that all of D.M.’s academic instruction be specialized

instruction outside of a general education setting, see

at 72 ¶ 1(a), according to the plaintiff,

the District “did not do this,” and instead, in July 2015, revised D.M.’s IEP to provide only 20,

not “all,” hours of specialized instruction “in a mainstream middle school,” Pl.’s Reply in Supp.

Mot. Atty’s Fees (“Pl.’s Reply”) at 6, ECF No. 54; see also Pl.’s Mot., Ex. 2 (Hearing Officer

Determination, issued April 29, 2017 (“2017 HOD”)) at 13, ECF No. 51-4 (noting “DCPS’

failure to provide in his IEP for all academic instruction to be provided outside the general

education setting contravened the requirements of the June 22, 2015 HOD”). According to the

plaintiff, D.M. “deteriorated so quickly from July 2015 through November 2015” that “in

November 2015 DCPS finally agreed to place [him] at … a full time special education school,”

Pl.’s Reply at 6, as the plaintiff had requested six months earlier at the 2015 due process hearing,

when that request had been denied. Unfortunately, D.M. was expelled from that special

education school in the spring of 2016, before the end of the school year,

.

5 B. Federal Suit Seeking Review of 2015 Hearing Officer Determination

On September 16, 2015, before DCPS acceded to the plaintiff’s request to place D.M. in

a full-time special education school, the plaintiff initiated this case seeking review of the 2015

HOD. See generally Compl., ECF No. 1. The Magistrate Judge to whom the case was referred

issued a report, dated January 31, 2017, recommending that, in addition to the relief granted in

the 2015 HOD, DCPS be further ordered to “(1) fund an IEE of D.M. comprised of as many

assessments as necessary to evaluate D.M.’s suspected areas of disability and to determine an

appropriate educational program for him, as determined by the independent professional

conducting the IEE and consistent with the standards for evaluations prescribed by the IDEA and

its regulations; (2) conduct a new FBA [Functional Behavioral Assessment] of D.M.,” and (3)

“hold an IEP Team meeting to consider the results of the IEE and FBA within 30 days of their

completion.” 2017 R&R at 38. Less than one month later, this Court adopted, in full, the

recommendations made in the Magistrate Judge’s 2017 Report, to which neither party had

lodged any objection. See Order, dated Feb. 22, 2017 (“2017 Order”) at 2, ECF No. 31.

C. Implementation of 2017 Order and Second Administrative Action

During the pendency of the plaintiff’s civil suit, from September 16, 2015 to February 22,

2017, D.M.’s behavioral problems persisted with “significant disruptive behavior and non-

compliance,” 2017 HOD at 7 ¶ 6, leading to incidents that resulted in his arrest and a hospital

admission,

at 8 ¶ 7. The plaintiff requested a therapeutic residential placement for D.M. in

May 2016,

at 9 ¶ 10, but DCPS instead placed D.M. in a therapeutic day school,

at 9 ¶ 11,

where D.M. was chronically truant,

at 10 ¶ 14.

On February 17, 2017, shortly before issuance of the 2017 Order, plaintiff filed a second

due process complaint seeking “to secure DCPS funding for a residential educational placement”

for D.M.

. After a due process hearing on the second due process complaint, held on

6 April 13, 2017,

, the hearing officer denied, without prejudice, the plaintiff’s request for

DCPS to fund a residential placement for D.M. and ordered an independent psychological

assessment “specifically [to] assess Student’s need for a residential placement,”

. Due to

D.M.’s deterioration “socially, emotionally, academically, and behaviorally,” Pl.’s Resp. OTSC

at 2, however, the psychological assessment required under the 2017 HOD and the additional

IEEs and FBA’s required under the 2017 Order could not be conducted,

.

In the fall of 2017, a psychologist was able to gather sufficient information to “issue[] a

report recommending placement in a residential school,” Pl.’s Pts and Auth. Supp. Pl.’s Mot. for

Atty’s Fees and Costs (“Pl.’s Mem.”) at 2, ECF No. 51-2, a placement the plaintiff had requested

in May 2016, if not earlier, and reiterated in January 2017, see Pl.’s Reply at 7.3 In November

2017, DCPS agreed to a residential placement for D.M. See Jt. Status Rpt. (Jan. 9, 2018) at 1,

ECF No. 45. When D.M. became agitated and non-compliant at the proposed placement,

however, the plaintiff decided to homeschool him.

In April 2018, the parties scheduled an

IEP meeting, Jt. Status Rpt. (Apr. 10, 2018), ECF No. 48, and in June 2018, the parties advised

that D.M. had begun attending a private school in the Baltimore area, Jt. Status Rpt. (June 6,

2018), ECF No. 50.

Shortly thereafter, the plaintiff filed the pending motion for attorney’s fees and costs,

resolution of which would “obviate the need to continue to maintain this action.” Jt. Status Rpt.

(June 6, 2018). This is the plaintiff’s second motion for attorney’s fees and costs, after the

plaintiff’s first motion seeking reimbursement for fees and costs incurred in appealing the 2015

3 In 2015 the plaintiff requested a “Private School or another appropriate full time special education program,” though the record is unclear whether the plaintiff contemplated that this request included possible placement in a “therapeutic residential school,” as plaintiff later specifically requested, in 2016. See 2015 HOD at 6-7; 2017 HOD at 9 ¶ 10 (noting that plaintiff requested, in May 2016, “in light of Student’s daily struggles, refusal to cooperate with the school program and oppositional conduct, that Student be placed in a therapeutic residential school”).

7 HOD in this Court, see Pl.’s Mot. For Attorney’s Fees and Costs (“Pl.’s First Fee Mot.”) at 1 n.1,

ECF No. 37, was settled by the parties, see Not. of Settlement, ECF No. 40. As noted, the

pending motion seeks fees and costs incurred for 30 months of work on the administrative action

underlying the 2015 HOD and subsequent implementation of the 2015 HOD and 2017 Order.

Pl.’s Mot., Ex. 3 (invoice for professional services charged from Nov. 13, 2014 to June 11, 2018

(“Pl.’s Invoice”)), ECF No. 51-5; Pl.’s First Fee Mot. at 1 n.1.

II. LEGAL STANDARD

When a party objects to a Magistrate Judge’s Report and Recommendation, the Court

conducts a de novo review. See FED. R. CIV. P. 54(d)(2)(D); Baylor v. Mitchell Rubenstein &

Assocs., P.C.,

(D.C. Cir. 2017) (“[W]e join a number of our sister circuits in

requiring that motions for attorney’s fees be reviewed de novo if referred to a Magistrate Judge

and properly objected to.”). The IDEA provides that “the court, in its discretion may award

reasonable attorneys’ fees … to a prevailing party who is the parent of a child with a disability.”

(i)(3)(B)(i). Attorney’s fees under the IDEA are not limited to time spent in,

and preparing for, adversarial proceedings alone. “Rather, an attorney can recover for work

when there is ‘a clear showing that the time was expended in pursuit of a successful resolution of

the case in which fees are being claimed.’” Baylor v. Mitchell Rubenstein & Assocs., P.C.,

, 736 (D.C. Cir. 2018) (per curiam) (quoting Nat’l Ass’n of Concerned Veterans v.

Sec’y of Def.,

(D.C. Cir. 1982)).

Although the “IDEA provides relatively little guidance to either the courts or litigants

regarding how, precisely, these ‘reasonable attorneys’ fees’ are to be calculated,” Reed v. District

of Columbia,

(D.C. Cir. 2016), the statute requires that such fees must be

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

8 and quality of services furnished,”

(i)(3)(C), and disallows any “bonus or

multiplier,”

In addition, the statute authorizes “courts to reduce awards of attorneys’ fees if

they ‘unreasonably exceed[] the hourly rate prevailing in the community for similar services by

attorneys of reasonably comparable skill, reputation, and experience.’” Reed,

(quoting

(i)(3)(F)(ii)).

In applying a statutory fee-shifting provision allowing recovery of “a reasonable

attorney’s fee as part of the costs,” the “guiding light” is “the lodestar method [which] produces

an award that roughly approximates the fee that the prevailing attorney would have received if he

or she had been representing a paying client who was billed by the hour in a comparable case.”

Perdue v. Kenny A.,

, 550-51 (2010) (emphasis in original). The lodestar approach

applies in IDEA cases using a “two-part framework that takes into account: (1) the ‘number of

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

provided.” Reed,

(quoting Eley v. District of Columbia,

(D.C.

Cir. 2015)). To meet the first part of this framework, “fee applicants must document the hours

spent litigating in IDEA proceedings in which they prevailed.”

For the second part of the framework, the D.C. Circuit instructs that the appropriate

“reasonable hourly rate” may be determined upon consideration of three sub-elements: “(1) ‘the

attorney[’s] billing practices,’ (2) ‘the attorney[’s] skills, experience, and reputation’ and (3) ‘the

prevailing market rates in the relevant community.’”

(alterations in original) ((quoting Eley,

) (quoting Covington v. District of Columbia,

(D.C. Cir.

1995))). The third sub-element regarding the prevailing market rate may be addressed by fee

applicants in IDEA cases by relying “on two separate, but inter-related, approaches,”

at 521:

(1) “attempting to demonstrate that IDEA cases fall within the bounds of th[e] type of litigation”

9 that use the so-called “Laffey Matrix,” which the D.C. Circuit has characterized as “apply[ing]

only to ‘complex federal litigation,’” id.; and (2) “providing evidence of the fees charged, and

received, by IDEA litigators,”

When seeking reasonable attorney’s fees, “the ‘fee applicant bears the burden of

establishing entitlement to an award, documenting the appropriate hours, and justifying the

reasonableness of the rates.’” Eley,

(quoting Covington,

). Once

an applicant meets this initial burden, a presumption applies that the number of hours billed and

the hourly rates are reasonable. Covington,

(citing Blum v. Stenson,

, 897 (1984)). At that point, the burden shifts to the opposing party to “provide specific

contrary evidence tending to show that a lower rate would be appropriate.” Covington,

-10 (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def.,

).

III. DISCUSSION

The District does not dispute that the plaintiff is “a prevailing party who is the parent of a

child with a disability,”

(i)(3)(B)(i), and, as such, is generally entitled to

reimbursement of reasonable attorney’s fees and costs under the IDEA, see generally Def.’s

Opp’n. Nor does the District dispute any of the charges submitted by the plaintiff’s counsel, or

her billing practices. See Pl.’s Reply at 5 (“Defendant does not challenge any specific line items

on Plaintiff’s invoice for attorney fees and costs such as entries that required an unreasonable

amount of time, entries for unreasonable/unrelated activities, or for any other reason.”). Instead,

the District contests the use of the current USAO Matrix as the measure of the prevailing market

rate for IDEA cases, contending that a reasonable rate is “75% of the USAO Attorney’s fees

matrix rate.” Def.’s Opp’n at 1. Further, the District argues that any fee award to plaintiff

should be reduced by some additional, unspecified amount due to the plaintiff achieving only

10 “partial success” in the 2015 HOD, or even up to denial of any additional fees for allegedly

protracting the litigation after the District made a settlement offer. Def.’s Opp’n at 18-20. Each

of these arguments is addressed below.

A. The Current USAO Matrix Provides the Reasonable Hourly Rate

As noted, supra in Part II, when considering the reasonableness of an attorney’s proposed

hourly rate for reimbursement for work invoiced in an IDEA case, the D.C. Circuit has instructed

examination of “(1) ‘the attorney[’s] billing practices,’ (2) ‘the attorney[’s] skill, experience, and

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

(alterations in original) (quoting Covington,

); Reed,

(citing

three sub-elements). Application of this three-part test has proven challenging and contributed to

extensive litigation in IDEA cases over reimbursement since parents or other guardians, who are

seeking to vindicate the civil rights under this law of their children with learning difficulties, are

often unable to afford to pay private counsel’s billing rates, no matter what that billing rate is or

the attorney’s level of skills and experience or reputation. This important context has made the

task in IDEA cases of “determining an appropriate market rate for the services of a lawyer,”

Blum, 465 U.S. at 895 n.11, which is already “inherently difficult,” id., even more so.

1. First and Second Sub-elements: Attorney’s Billing Practices and Experience

The first sub-element for establishing a reasonable hourly rate requires the applicant to

show the rates her attorney “customarily charges clients.” Covington,

. See also

Lee v. District of Columbia,

(D.D.C. 2018) (noting this “factor requires the

applicant to show her attorney’s ‘custom’ with respect to billing in IDEA cases”). Plaintiff’s

counsel states in her affidavit that it is her “normal practice to bill clients who are not indigent at

rates equivalent to the current Laffey Matrix rates.” Pl.’s Mot., Ex. 4 (Decl. of Elizabeth T.

Jester, dated June 11, 2018 (“Pl.’s Counsel’s Decl.”)) ¶ 20, ECF No. 51-6. The D.C. Circuit has 11 opined that “an attorney’s usual billing rate is presumptively the reasonable rate, provided that

this rate is ‘in line with those prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience, and reputation.’” Kattan by Thomas v. District of

Columbia,

(D.C. Cir. 1993) (quoting Blum, 465 U.S. at 895 n.11); see also

Baylor, 735 F. App'x at 735 (noting that “the District Court appropriately relied on this Court’s

holding that an attorney’s usual billing rate is presumptively the reasonable rate”) (internal

quotations and citations omitted). As discussed in more detail, infra in Part III.A.2, the

plaintiff’s attorney has bolstered her own affidavit about her personal billing practices and rates

as being consistent with the rates set out in the current USAO Matrix, with affidavits from other

attorneys and additional evidence showing that her billing rates are in line with prevailing rates.

Thus, this first sub-element favors using the USAO Matrix as the prevailing market rate.

To meet the second sub-element, the plaintiff’s affidavit describes her significant skill

and experience both in litigating to protect children’s rights generally and their rights under the

IDEA, in particular. When she first entered private practice over thirty years ago, plaintiff’s

counsel represented children and their families in litigation over lead paint poisoning and the

concomitant disabilities caused by such poisoning. Pl.’s Counsel’s Decl. ¶ 4. She has been the

“featured speaker at several national lead poisoning conferences” and has spoken on the issue at

the D.C. Bar Annual Convention. Id. As for her credentials in special education law, plaintiff’s

counsel has served, since its inception, on the D.C. Superior Court Family Division panel of

attorneys approved to accept Special Education Attorney appointments, has been an instructor

for Continuing Legal Education (CLE) courses sponsored by D.C. Superior Court and the Public

Defender Service, as well as for other training programs sponsored by the Bar Association of the

District of Columbia’s Annual Neglect and Delinquency Practice Institute and the D.C. Public

12 Defender Service. Id. ¶ 5. She has “represented hundreds of District of Columbia families in

ascertaining the educational needs of their children with disabilities and procuring appropriate

placements,” id. ¶ 6, and has “participated in hundreds of administrative due process hearings

pursuant to IDEA and procured countless settlement agreements in IDEA cases in the District of

Columbia,” id. Finally, “[n]umerous judges of the D.C. Superior Court” have appointed her “in

neglect and juvenile cases to represent parents/foster parents/surrogate parents/guardians

concerning the educational needs of the children in their care who are wards of the District of

Columbia.” Id. In sum, the plaintiff has demonstrated her skills and experience over the course

of a long career dedicated to serving the needs of children.

Therefore, as to the first two sub-elements, the plaintiff has shown her entitlement to fees

reimbursed at the requested rate provided in the current USAO Matrix. Notably, the District

raises no challenge as to plaintiff’s counsel’s representations regarding, or satisfaction of, either

of the first two sub-elements in establishing a reasonable hourly rate. See generally Def.’s

Opp’n.

2. Third Sub-Element: Prevailing Market Rates in The Relevant Community

The thrust of the District’s challenge to the plaintiff’s requested fee award is to the third

sub-element in establishing a reasonable hourly rate, namely: consideration of the prevailing

market rate in the District of Columbia metropolitan area. As support for her position that the

current USAO Matrix sets the prevailing market rate applicable here, the plaintiff provides her

own counsel’s affidavit that these are the rates she charges non-indigent clients, Pl.’s Counsel’s

Decl. ¶¶ 11, 20, plus affidavits from five attorneys practicing special education law in the

District of Columbia, see Pl.’s Mem. Exs. 8-12 (Declarations of Carolyn Houck, Douglas Tyrka,

Nicholas Ostrem, Stevie Nabors, and Alana Hecht, respectively), ECF Nos. 51-10, 51-11, 51-12,

13 51-13, 51-14. Those five attorneys attest that they charge hourly rates to paying clients

commensurate with, or in excess of, the rates provided in the current USAO Matrix. See, e.g.,

Houck Decl. ¶ 3, 9 (“The hourly rates I charge my clients [are in line] with the rates set forth in

United States Attorneys Office (USAO) attorney’s fees matrix” and “[t]he community of

attorneys with paying special education clients in the District of Columbia predominately charge

their clients at or near the current attorney’s fees matrix rates published by the USAO.”); Tyrka

Decl. ¶ 3-4 (“From its inception in 2005 Tyrka & Associates has always exclusively charged at

hourly rates matching those in what is commonly known as “the LSI Laffey Matrix,” … [t]hough

Tyrka & Associates historically primarily represented clients who could not afford

representation, the firm has had several clients pay the firm at the LSI Laffey Matrix rates

directly, regardless of whether reimbursement is ever obtained.”);4 Ostrem Decl. ¶ 3 (“The

Ostrem Firm has always matched its hourly rates to those in what is commonly known as the

‘Laffey matrix’….”); Nabors Decl. ¶ 5-8 (“After the United States Attorney’s Office issued its

‘USAO Attorneys’ Fees Matrix’ in late 2015, we orally surveyed our colleagues and peers who

practiced IDEA litigation and determined that the USAO Attorneys’ Fees Matrix represented the

prevailing rate in the community,” and is the rate at which “the firm has been paid.”); Hecht

Decl. ¶ 12 (“D.C. Disability Law Group, P.C. currently matches its hourly rates to those in what

is known as the USAO adjusted Laffey matrix and has had several paying clients that have paid

these rates.”).

Plaintiff also submitted independent surveys of rates charged by attorneys in the District

of Columbia. See Pl.’s Mem., Exs. 6-7 (survey data compiled by the National Law Journal in

4 The LSI Laffey Matrix provides hourly rates that exceed those set out in the current USAO Matrix, and is derived by adjusting for inflation the original Laffey Matrix using the Legal Services Index of the nationwide Consumer Price Index. See Flood v. District of Columbia,

, 202 n.1 (D.D.C. 2016); Salazar v. District of Columbia,

(D.C. Cir. 2015).

14 2013 and 2015, respectively, and published by ALM Intelligence), ECF Nos. 51-8, 51-9. This

survey data, even more recent that the 2011 survey data relied upon in the USAO Matrix, shows

that in 2015 the national median rate for a partner at a law firm with 25 or fewer lawyers was

$350/hour, compared to the much higher median rate in the District of Columbia (for all law

firms) at $1,035/hour.5 In other words, as the plaintiff observes, “[t]he rates reflected in these

surveys for attorneys in the D.C. area are above the USAO Matrix rates requested by Plaintiff’s

attorney.” Pl.’s Mem. at 7.

Finally, the plaintiff requests that judicial notice be taken of nine affidavits from

attorneys litigating IDEA cases that were relied upon in Wimbish v. District of Columbia,

(D.D.C. 2017), four of which affidavits are from the same attorneys

submitting affidavits in this case (i.e., plaintiff’s counsel Elizabeth Jester, Douglas Tyrka,

Nicholas Ostrem, and Alana Hecht). Pl.’s Mem. at 8. Such evidence from other attorneys

regarding the fee rates used in the same specialty area in the same locale has been expressly

endorsed as relevant in determining the prevailing market rate. See Eley,

(citing

Covington,

). Several of the additional attorney affidavits submitted in Wimbish

attested to the fact that IDEA litigators in this area generally charge rates in conformity with the

current USAO Matrix and that this matrix reflects the prevailing rate. See, e.g., Decl. of

Domiento C.R. Hill (“Hill Decl.”) ¶ 14, Wimbish, 15-cv-1429 (ESM), ECF No. 17-15 (declaring

that 75% of the USAO rate is “unreasonably low and below market rates”); Decl. of Diana Savit

(“Savit Decl.”) ¶ 14,

ECF No. 17-12 (stating that she would not “take [a non-paying IDEA]

case unless it was extremely strong on the merits and [she] could reasonably expect to be

5 Ideally, a comparison could be made between the median rate for partners at law firms with 25 or fewer lawyers nationally with the median rate for partners at similarly sized law firms in the District of Columbia, but the National Law Journal survey data submitted by the plaintiff only provides the median rate in the District of Columbia for all firms.

15 awarded an hourly rate of at least $500, far above the ‘75% of USAO Laffey’ rate many judges

would award me”); Decl. of Emily B. Read,

ECF No. 17-9 (stating that all of plaintiff’s

attorneys, including Ms. Read, received “the United States Attorney’s Office (USAO) Laffey

Matrix” rate in Blackman v. District of Columbia,

(D.D.C. 2014), for

successfully obtaining injunctive relief and implementing hearing officer determinations).

Confronted with the evidence provided by the IDEA attorneys, the Wimbish Court

determined that the affidavits on which the instant plaintiff also seeks to rely “support a finding

that full USAO Laffey rates are the prevailing rates in the community for IDEA litigation,”

Wimbish,

, and ultimately awarded attorney’s fees at the USAO Matrix

rate, see

As in Wimbish, these affidavits support a finding that the USAO rate is the

prevailing rate.

In addition to this evidence of what attorneys in this metropolitan region are charging

clients for IDEA-related work, the USAO Matrix has been described as “‘a useful starting point’

in calculating the prevailing market rate.” Eley,

(quoting Covington,

). Thus, having begun this analysis of the prevailing market rate with evidence of what

attorneys charge paying clients, the discussion continues by reviewing the particular relevance of

the current USAO Matrix, followed by review of other considerations, including the rate

necessary to attract competent counsel to assist plaintiffs with meritorious IDEA claims.

a. Current USAO Matrix Is Not Limited to “Complex Federal Litigation”

The Civil Division of the USAO prepares and regularly updates its Attorney’s Fees

Matrix “for use in cases in which a fee-shifting statute permits the prevailing party to recover.”

USAO Matrix, Explanatory Note 1 (citing as examples of such statutes, Title VII of the 1964

Civil Rights Act, 42 U.S.C. § 2000e-5(k); Freedom of Information Act,

(a)(4)(E);

and Equal Access to Justice Act,

(b)), available at 16 https://www.justice.gov/usao-dc/file/796471/download.6 This USAO Matrix is often referred to

as the “Laffey Matrix,” but this is now a misnomer. In fact, both parties recognize the difference

between the Laffey Matrix and the current USAO Matrix. See Pl.’s Mem. at 14 (referring to the

Laffey Matrix as the “predecessor to the USAO Matrix”);

at 7 n.2 (“Prior to 2015, the U.S.

Attorney’s Office formulated what was referred to [as] The USAO Laffey Matrix.”). The District

expressly acknowledges that “[t]he USAO Matrix, which was developed for use after June 1,

2015, is based on different data and utilizes a different inflation index than that used in the Laffey

Matrix.” Def.’s Opp’n at 11.

The Laffey Matrix was “originally compiled to reflect the prevailing market rate for

‘complex federal litigation,’” Reed,

(citing Laffey v. Nw. Airlines, Inc. (Laffey I),

(D.D.C. 1983), aff'd in part, rev'd in part on other grounds, Laffey v. Nw.

Airlines, Inc. (Laffey II),

(D.C. Cir. 1984), overruled in part on other grounds, Save

Our Cumberland Mountains, Inc. v. Hodel (SOCM),

(D.C. Cir. 1988) (en

banc)), and was based on twenty-five affidavits submitted to show the hourly rates charged in

1981-82 by attorneys in complex federal employment litigation, see Laffey I,

. By contrast, the USAO does not suggest that use of its current fee matrix is limited to

“complex federal litigation”—however that may be defined—and, indeed, the methodology used

to prepare the matrix is entirely divorced from the original Laffey case rates. See USAO Matrix,

Explanatory Note 4 (highlighting that current methodology “replaces that used prior to 2015,

which started with the matrix of hourly rates developed in Laffey”).

6 The USAO further explains that the “matrix has not been adopted by the Department of Justice generally for use outside the District of Columbia, or by other Department of Justice components, or in other kinds of cases,” meaning cases without an applicable fee-shifting statute, or where “the hourly rate is limited by statute.” USAO Matrix, Explanatory Note 1.

17 Instead of relying on hourly rates developed over thirty-five years ago in the Laffey case,

the USAO now uses an entirely different methodology and derives the hourly rates for attorneys

in this area based on “average hourly rates reported in 2011 survey data for the D.C.

Metropolitan area, which rates were adjusted for inflation with the Producer Price Index-Office

of Lawyers (PPI-OL) index.”

at Explanatory Note 2. The “survey data comes from ALM

Legal Intelligence’s 2010 & 2011 Survey of Law Firm Economics.”

This ALM Legal Survey

data, in turn, is not limited to fees charged by lawyers litigating in federal courts but

encompasses a far broader scope of fees charged by lawyers practicing in different sizes of

offices, across different types of specialties, in both litigation and non-litigation types of matters.

See Makray v. Perez,

(D.D.C. 2016) (describing 2011 ALM Legal

Intelligence survey in declaration of expert economist, Dr. Laura A. Malowene, provided by U.S.

Department of Labor, as “provid[ing] data of actual billing rates of attorneys in the Washington,

DC area, from law offices of all sizes and types”). The USAO has adopted this methodology

because use of this survey data is “[c]onsistent with” the Supreme Court’s definition of a

“reasonable fee” awarded pursuant to a fee-shifting statute as “a fee that is sufficient to attract an

adequate supply of capable counsel for meritorious cases.” USAO Matrix, Explanatory Note 2.

In short, the USAO Matrix from June 1, 2015 and onward no longer bears any

methodological connection to Laffey the case or Laffey the fee matrix, or to the illusive concept

of “complex federal litigation.”7 The current version of the USAO Matrix is in fact designed to

7 A minor portion of the plaintiff’s requested fees were incurred before June 1, 2015, and were therefore charged pursuant to the USAO Laffey Matrix for 2014-2015, which was $520 per hour. See Pl.’s Invoice at 1-5; Pl.’s Counsel’s Decl. at 5. The USAO Laffey Matrix had only five strata for attorney experience, with the highest stratum being 20+ years of experience. By contrast, the USAO Attorney’s Fees Matrix has nine strata, with the highest stratum being 31+ years of experience. Plaintiff’s counsel had 31+ years of legal experience by 2014, see Pl.’s Counsel’s Decl. at 1, such that her hourly rate of $520 for that period, billed under the USAO Laffey Matrix for attorneys with 20+ years of experience, falls below the rate of $568 per hour for attorneys with 31+ years of experience in 2015-2016 under the current USAO Matrix. In short, as compared to the current USAO Matrix, the

18 be representative of the prevailing hourly rates for a broad range of legal work in this area, not

just for “complex federal litigation.” To the extent that the attorney hourly rates provided in the

Laffey Matrix have been deemed inapplicable to IDEA cases, because IDEA cases fall short of

qualifying as “complex federal litigation,” see, e.g., Reed,

(observing that being

“able to demonstrate that IDEA cases are ‘complex federal litigation’ to which the Laffey Matrix

presumptively applies []will not be easy”); Price v. District of Columbia,

(D.C. Cir. 2015) (Brown, J., concurring) (finding that “Laffey Matrix rates are irrelevant to the

prevailing-rate determination” for “IDEA administrative due process hearings” since such cases

do not command the same rates as complex federal litigation), the new methodology employed

by the USAO Matrix now renders that analysis inapposite.8 The District simply fails to address

the fact that unlike the original Laffey Matrix, the USAO Matrix is untethered to complex federal

litigation and based on data “from law offices of all sizes and types,” other than solo

practitioners, involved in all types of legal work—not just federal litigators in complex litigation.

Despite the USAO’s updated data and methodology, the District argues that,

“[n]evertheless, both the Laffey Matrix and the USAO Matrix were intended to be applied in

complex federal litigation in the District,” Def.’s Opp’n at 11 (emphasis in original), by which

the District seems to mean that both matrices were intended to apply only to complex federal

litigation. The District supports this claim by citing the United States’ Statement of Interest

USAO Laffey Matrix set a lower hourly rate for attorneys with many years of experience, meaning plaintiff’s request for that lesser amount is also reasonable. 8 The plaintiff argues, as an alternative justification for her proposed hourly rate, that either IDEA cases in general, or this IDEA case, in particular, is equivalent to “complex federal litigation” and therefore “presumptively” deserving of Laffey or USAO Matrix rates. Pl.’s Mem. at 10-13; Pl.’s Reply at 3-4. Plaintiff’s argument arises, of course, from the case law suggesting “two separate” ways of establishing an attorney’s rate with evidence of either (1) the prevailing market rate for the attorney’s services, or (2) the attorney’s work being akin to “complex federal litigation,” Eley,

. Further consideration of this argument is unnecessary because the plaintiff has satisfied the “prevailing market rate” rubric and the current USAO Matrix is no longer tethered to the original Laffey matrix or “complex federal litigation.”

19 submitted in D.L. v. District of Columbia, 05-cv-1437 (RCL), see Def.’s Opp’n at 11, but that

Statement of Interest does not support the District’s claim, see Def.’s Opp’n, Ex. 3, Statement of

Interest of the United States (“US-SOI”), ECF No. 53-3. Instead, the United States’ Statement of

Interest addressed the more limited question “whether a district court charged with awarding

‘reasonable’ attorneys’ fees under a federal fee-shifting statute abused its discretion when it

based its award on the hourly rates set forth in a particular ‘matrix’ maintained by the” USAO.

Id. at 1. Although the parties in D.L. agreed that the case qualified as complex federal litigation,

that characterization of the case was beside the point for the United States, which took “no

position” on that issue. See Brief for the United States as Amicus Curiae Supporting Appellees

at 6, D.L. v. District of Columbia, No. 18-7004 (D.C. Cir. filed Jul. 20, 2018). Instead, the

United States merely defended the merits of the USAO Matrix as “superior to the LSI Laffey

Matrix,” id. at 2, which the D.L. plaintiffs’ sought to use for reimbursement.

In other words, the issue addressed by the United States’ Statement of Interest in D.L.

was not whether, or to what extent, the current USAO Matrix appropriately applies to cases that

qualify, or not, as “complex federal litigation,” but rather, which of two matrices should be used

in a case involving a statutory fee-shifting statute requiring determination of a “reasonable

hourly rate” for the Washington, D.C. Metropolitan region. In this regard, the United States

emphasized “[a] request for attorney’s fees should not result in a second major litigation,” id. at 6

(quoting Hensley v. Eckerhart,

(1983)), and “a reliable and agreed-upon rate

matrix is critical to achieving that goal,” id. at 7; see also id. (“affirming the district court’s

adoption of the USAO Matrix would go a long way toward eliminating the need for parties to

engage in extensive litigation over rate issues in the future, thereby rendering fee litigation more

efficient for courts, parties, and lawyers”) (quotations omitted). Notably, in D.L., on appeal, the

20 USAO Matrix was criticized as “not sufficiently tailored to complex federal litigation conducted

in D.C.,” id. at 13, because the underlying data “reflect[ed] hourly rates for all legal services

offered by law firms in a four-state area, not rates for complex federal litigation in D.C. alone,”

id. (quotations omitted). The government explained that, “even if rates for complex federal

litigation are in the top 10% of litigation rates,” id. at 15, “the rates in the USAO Matrix are

sufficiently high” to serve as a “reasonable proxy,” id. In sum, without limiting application of

the USAO Matrix to only “complex federal litigation,” the government stressed that the “USAO

Matrix is far superior to the LSI Matrix because it is based on substantially more recent, reliable,

and precise data concerning the ‘prevailing’ market rates in the relevant community, [and] are

therefore ‘reasonable’ and ‘adequate to attract competent counsel, [without] produc[ing] [a]

windfall[] to attorneys.’” Id. at 24 (alterations, other than first alteration, in original; citations

omitted).

That the current USAO Matrix is not tethered to use in complex federal litigation is good

news since, as the D.C. Circuit has astutely noted, “Laffey is not very helpful in explicating

‘complex federal litigation,’” Reed,

, and “[u]nfortunately, the case law provides

little guidance to litigants attempting to demonstrate that IDEA cases constitute ‘complex federal

litigation,’”

. Engaging in the costly, time-consuming and ultimately unhelpful practice

of drawing ill-fitting, subjective comparisons between IDEA litigation work and federal

litigation work in another specialized area to qualify for Laffey Matrix rates can now be

jettisoned with use of the current USAO Matrix, which, again, is derived using recent 2011

survey data reflecting a mix of legal services collectively offered by “law offices of all sizes and

types” in this metropolitan area.

b. USAO Matrix Applies to IDEA Administrative Proceedings

21 Having already reached a settlement regarding her fees for the federal litigation portion

of this IDEA case, the plaintiff now seeks reimbursement for her success in the administrative

proceeding and the time expended in implementing the administrative order and the order of this

Court. The District contends that the administrative nature of the proceeding for which the

plaintiff seeks reimbursement warrants a discount from the USAO Matrix rate. See Def.’s Opp’n

Pl.’s Obj. Mem. at 4-5, ECF No. 60 (“‘[A] rate equivalent to 75 percent of Laffey rates

approximates the prevailing market rate for IDEA administrative proceedings….’” (quoting Reed

v. District of Columbia,

(D.D.C. 2015))). This Court disagrees with

the District’s reasoning that a lower hourly rate automatically should apply to IDEA

administrative proceedings, particularly one, as here, that involved a pre-hearing conference, a

two-day hearing, over eighty exhibits by both parties, thirteen “disclosed” witnesses who were

listed to testify, and four of whom actually testified, including the plaintiff. Pl.’s Mem at 10-11;

2015 HOD at 3.

Retiring comparisons to “complex federal litigation,” with its myopic discounting of the

administrative portion of IDEA cases, will bring IDEA attorney’s fees cases back in line with the

statutory text of the IDEA. Ultimately, no statutory basis supports a distinction, when

calculating IDEA attorney’s fees, between prevailing in an administrative proceeding or in a

federal court. Over thirty years ago, the District argued that plaintiffs, who were successful on

the administrative level, were not entitled to recover any attorneys’ fees under the virtually

identical language of IDEA’s predecessor statute. See Moore v. District of Columbia,

(D.C. Cir. 1990) (en banc). The D.C. Circuit flatly rejected that argument.

The

relevant statutory text, then, as now, reads: “[i]n any action or proceeding brought under this

section, the court, in its discretion, may award reasonable attorneys’ fees ….”

1415(i)(3)(B)(i) (emphasis added). The D.C. Circuit held that Congress intended this broad

language to encompass administrative proceedings and civil actions alike, since the Court was

“at a loss to give meaning to the distinction between ‘action’ and ‘proceeding’ short of inferring

that Congress meant to authorize fees for parents who prevail either in a civil action or in an

administrative proceeding under [the IDEA.]” Moore,

(emphasis in original).

In authorizing fee awards for parties who prevail in administrative actions alone, see

the IDEA makes no distinction between a reasonable rate for fees in administrative proceedings

and court proceedings, see

(i)(3)(B)(i). Indeed, the district court in Moore, in

granting the plaintiffs’ counsels’ hourly rates, made no distinction between the hourly rate to be

awarded for the attorneys’ work in the administrative proceeding and the hourly rate to be

awarded for all other aspects of the case, such as the award for fees-on-fees litigation. See

generally Moore v. District of Columbia,

(D.D.C. 1987); see also Robinson v.

District of Columbia,

(D.D.C. 2014) (rejecting the District’s argument that

legal work in administrative proceedings should be compensated at a lower rate than in federal

court and observing that “such a position would be enormously short-sighted and provide a

perverse incentive for attorneys to fail—and fail quickly—before administrative tribunals in

order to initiate federal court proceedings for which the attorney would be entitled attorneys' fees

at a full, regular and reasonable rate”).

Congress has demonstrated that it knows exactly how to make a distinction between

attorney’s fees awards in different types of proceedings, when such a distinction is intended. For

example, in the Social Security context, Congress limits the amount of attorneys’ fees available

when a litigant is successful in an administrative proceeding before the Social Security

Commissioner, see

(a)(2)(A) (setting cap for recovering fee in administrative

23 proceeding at no more than $4,000), as compared to when the litigation continues in District

Court, see

§ 406(b) (setting cap for recovering fees at “25 percent of the total of the past-due

benefits to which the claimant is entitled by reason of such judgment”). As this Court previously

noted in Robinson,

, no such distinction is drawn in the IDEA.

The fact that Congress explicitly intended the attorneys’ fees provision in the IDEA to

cover both administrative and civil actions, and that Congress declined to mandate a lower fee

for administrative actions, as it has done in other contexts, is a strong statutory refutation of the

idea that an attorney’s work in an IDEA administrative proceeding is deserving of lower

compensation than an attorney’s work in an IDEA court proceeding.

c. Hourly Rates at Which IDEA Attorneys Are Actually Paid Is Irrelevant Given Nature of IDEA “Submarket”

Notwithstanding that the USAO Matrix provides the prevailing hourly rates for a broad

swath of lawyers in this metropolitan area, and that plaintiff’s counsel and other lawyers, whose

affidavits have been submitted and referenced, actually charge fees at or above those rates to

paying clients, the District discounts this evidence as insufficient in “showing that the attorneys

actually received the rates charged, except, of course on the comparatively rare occasion when

the District Court awards these unreasonable rates.” Def.’s Opp’n at 8 (emphasis in original).

The District’s focus on what attorneys are paid for their IDEA work, rather than what they

charge to paying clients, simply highlights the sad lack of a marketplace for lawyers engaging in

IDEA litigation. See Merrick v. D.C.,

, 340 n.7 (D.D.C. 2015) (“[G]iven the

existence of the fee-shifting statute in [IDEA cases] and the relative rarity of paying special

education clients, one can hardly say that a ‘market’ exists for services similar to the services

offered in this [IDEA] case.”).

24 Indeed, plaintiff’s counsel fully acknowledges that “[w]ith very limited exceptions, my

clients are indigent or unable to afford payment of attorney fees and costs.” Pl.’s Counsel’s

Decl. ¶ 20; see also Pl.’s Obj. Mem. at 5 (“As indicated in the attached affidavits, of the small

subset of attorneys who do seek attorney’s fees in successful IDEA litigation, most of the cases

they handle are those of indigent clients who are not in a position to pay even token fees up

front.”). Rather than an effective attack on use of the USAO Matrix in IDEA cases, as the

District intended, this challenge simply highlights whether awarding attorney’s fees at rates

lower than the USAO Matrix, as the District urges, achieves the goal of the fee-shifting provision

to attract an adequate supply of capable counsel for meritorious cases. See, e.g., Covington,

(“‘Congress after all did not simply express its intent that the fees would attract

counsel, but rather that they would be adequate to attract competent counsel.’” (quoting SOCM,

); accord Perdue, 559 U.S. at 552 (describing attraction of competent counsel as

purpose of fee-shifting in

). In keeping with the purpose of fee-shifting statutes

to enable meritorious cases to be brought, the plaintiff points out that IDEA “cases are

undertaken with the knowledge that if the client does not prevail … there will be no fees.” Pl.’s

Obj. Mem. at 5-6. Thus, IDEA practitioners must scrutinize the merits of the cases they bring

since they work on a contingency-fee basis only to receive, if successful, the rates that their peers

performing work for paying clients receive regardless of success.9

The District’s criticism of the plaintiff’s reliance on the USAO Matrix when IDEA

plaintiffs generally cannot pay those rates is misplaced. Simply because IDEA clients may be

9 Moreover, the IDEA excludes from attorney’s fees awards time spent in many IEP Team meetings, see 20 § 1415(i)(3)(D)(ii) (“Attorneys’ fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State, for a mediation described in subsection (e).”), and the D.C. Circuit excludes expert witness fees from IDEA cost awards, see Goldring v. District of Columbia,

(D.C. Cir. 2005).

25 indigent and unable to afford payment, does not mean that their attorney’s rate, awarded pursuant

to a fee-shifting statute, should be reduced. To the contrary, clients’ systematic inability to pay

is expected in the context of many fee-shifting statutes, including civil rights statutes, such as the

IDEA. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,

(1987) (plurality opinion) (“We agree that a fundamental aim of such statutes is to make it

possible for those who cannot pay a lawyer for his time and effort to obtain competent counsel,

this by providing lawyers with reasonable fees to be paid by the losing defendants.”); see also

City of Burlington v. Dague,

(1992) (Blackmun, J., dissenting) (“[A case] in

which potential plaintiffs can neither afford to hire attorneys on a straight hourly basis nor offer a

percentage of a substantial damages recovery-is exactly the kind of case for which the fee-

shifting statutes were designed.”); Frances Kahn Zemans, Fee Shifting and the Implementation of

Public Policy,

, 205-06 (1984) (“Many of the fee award statutes

are clearly intended to tip the litigation balance to compensate somewhat for the inordinately

unequal economic status of disputants.”).

As result, the Court plays a significant de facto role in establishing the customary,

“prevailing” rate for IDEA cases. In this regard, use of the USAO Matrix has garnered support

in this Circuit as a reasonable approximation of prevailing hourly rate for IDEA litigation. See

Reed,

(Tatel, J., concurring) (“Based on my own experiences and hearing

dozens of these cases and authoring opinions in many, I think it quite obvious that IDEA

litigation is as complex as Title VII litigation” and 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.”).10

10 Other Judges on this Court have also awarded full USAO Matrix rates in IDEA cases. See, e.g., Gaston v. District of Columbia,

, at *1 (D.D.C. Sept. 10, 2015) (Chutkan, J.); Copeland v. District of

26 d. The USAO Rate Would Attract a Sufficient Number of Competent Counsel

A reasonable fee is “one that is adequate to attract competent counsel, but that does not

produce windfalls to attorneys.” Blum, 465 U.S. at 897. The D.C. Circuit has not addressed

whether 75% of the USAO Matrix rate is sufficient to accomplish this goal in IDEA cases,

though Judge Tatel has separately written that “[d]eeming IDEA litigation eligible for Laffey

rates would comport with the Supreme Court’s instruction that a reasonable fee is one ‘adequate

to attract competent counsel,’” Reed,

(Tatel, J., concurring) (quoting Blum, 465

U.S. at 893). In Reed, the plaintiff-appellants raised the argument on appeal that the rates

awarded by the District Court in that case (75% of the USAO Matrix) were “insufficient to

attract competent counsel to take on these kinds of cases and, as such, are impermissibly low,”

Reed,

, but the Circuit decided that this issue “should be left for another day

when the claims can be appropriately fleshed out,”

The plaintiff brings this issue to the fore

in the instant case, claiming that “USAO Matrix rates are needed to attract competent counsel.”

Pl.’s Mem. at 9.

The plaintiff supports her argument with declarations from both her own counsel and

other IDEA practitioners explaining the insufficiency of fee amounts in the District of Columbia,

forcing IDEA practitioners to take fewer clients. See, e.g., Pl.’s Counsel’s Decl. ¶ 21 (explaining

that due to DCPS’ refusal to reimburse reasonable attorney fees and costs, she can no longer

afford to employ her Spanish-speaking paralegal, resulting in “a significant decrease in the

Columbia,

(D.D.C. 2016) (Cooper, J.); Taylor v. District of Columbia,

, at *3 (D.D.C. Sept. 26, 2018) (Friedrich, J.); Merrick v. District of Columbia,

(D.D.C. 2018) (A.B. Jackson, J.); Merrick v. District of Columbia, 134 F. Sup. 3d 328, 331 (D.D.C. 2015) (A.B. Jackson, J.); Joaquin v. District of Columbia,

(D.D.C. 2016) (Lamberth, J.); Shaw v. District of Columbia,

(D.D.C. 2016) (Lamberth, J.); D.L. v. District of Columbia,

(D.D.C. 2017) (Lamberth, J.); Green v. District of Columbia,

(D.D.C. 2015) (Mehta, J.); Wimbish,

(Sullivan, J.); Yoo v. District of Columbia,

, at *2 (D.D.C. Jan. 7, 2019) (K.B. Jackson, J.).

27 number of clients” that she is able to represent, and that she can no longer represent non-English

speaking clients); Tyrka Decl. ¶ 42 (“I do not know any lawyer in this jurisdiction supporting a

family on IDEA work for non-paying clients.”); Ostrem Decl. ¶ 9 (“The reasons I have found it

impossible to sustain a practice for indigent parents and students by relying on the ‘fee-shifting’

provision of the IDEA include … some judges regularly awarding hourly rates at 75% of the

rates in the USAO fees matrix … and the general inconsistency and insecurity of income earned

through fee litigation.”); Hecht Decl. ¶ 33 (“The failure of DCPS to timely pay attorneys’ fees

affected [Brown & Associates, the largest special education law firm in the District of Columbia]

significantly, such that the law firm had to lay off two thirds of its staff.”); Hecht Decl., Wimbish,

15-cv-1429 (ESM), ECF No. 17-7 ¶ 1711 (“If all judges, instead of only some, were to award the

hourly rate for my work proposed by the District, 75% of the United States Attorney’s Office

version of the ‘Laffey matrix,’ I would likely be forced to leave my current practice and either

work only for paying clients or find entirely different work.”); Hill Decl. ¶ 12 (“I have turned

away many potential clients who have sought my help during the last two years, solely because

the firm cannot afford to maintain a fulltime staff to assist me.”); Decl. of Maria G. Mendoza

(“Mendoza Decl.”) ¶ 10, Wimbish, 15-cv-1429 (ESM), ECF No. 17-14 (declaring that she has

“almost completely discontinued [non-paying IDEA] work because it was financially

impossible,” and as result, has “turned away many potential clients who have sought my help”).

In choosing to award 75% of Laffey, another judge on this Court has reasoned that the

“sheer number of [IDEA] cases” receiving awards at 75% of Laffey indicates that such awards

will not “dissuade all competent counsel in the region from taking such cases.” Reed,

Two declarations from Alana M. Hecht are presented in this case, one dated December 13, 2016, docketed at ECF No. 51-14, and another dated August 12, 2015, docketed in Wimbish, 15-cv-1429 (ESM), ECF No. 17-16, and incorporated by reference, as requested by plaintiff, see Pl.’s Mem. at 8.

28 Supp. 3d at 131. This observation begs the question of how many IDEA litigators have left this

practice area due to reimbursement at less that the USAO Matrix rate. Evidence presented in this

case suggests that at least some litigators no longer accept non-paying IDEA clients. See, e.g.,

Pl.’s Counsel’s Decl. ¶ 21; Ostrem Decl. ¶ 9; Hill Decl. ¶ 12; Mendoza Decl. ¶ 10. Thus, even if

this observation were narrowly true, a more probative question would be: how many meritorious

IDEA cases have been unable to attract competent counsel? The declarations submitted in this

case suggest real hardship among IDEA practitioners, and a curtailing of their practices, not

because of an insufficient number of would-be plaintiffs seeking vindication of their children’s

IDEA rights, but because IDEA attorneys cannot afford to accept as clients those potential IDEA

plaintiffs unable to afford to pay fees or to bring their cases.

* * *

In sum, the plaintiff has established the reasonableness of using the USAO Matrix as her

attorney’s rate by offering substantial evidence as to “(1) ‘the attorney[’s] billing practices,’ (2)

‘the attorney[’s] skill, experience, and reputation’ and (3) ‘the prevailing market rates in the

relevant community.’” Eley,

(alterations in original) (quoting Covington,

). Of these three factors, the District contested only whether the prevailing market

rate for plaintiff’s counsel’s time is the rate provided in the current USAO Matrix. The Court

concludes that the current USAO Matrix, which is predicated on legal services survey data from

“law offices of all sizes and types” in this metropolitan area, Makray,

,

provides a reasonable approximation of the prevailing market rates for IDEA attorneys and

therefore the fees “adequate to attract competent counsel,” Blum, 465 U.S. at 897. This

conclusion is bolstered by declarations from the plaintiff’s attorney and other IDEA practitioners

in this metropolitan area averring to the USAO Matrix rates they customarily charge paying

29 clients, as well as the compelling evidence documenting IDEA practitioners cutting staff even as

they turn away potential clients, due to significant reductions in the hourly rates for fee awards,

compounded by delays in payment by the District, see, e.g., Pl.’s Counsel’s Decl. ¶ 21; Ostrem

Decl. ¶ 9; Hecht Decl. ¶ 33; Hill Decl. ¶ 12; Mendoza Decl. ¶ 10; Tyrka Decl. ¶¶ 36-38, which

evidence shows that cut-rates fall short of attracting competent counsel to this practice area.

Moreover, the current USAO Matrix’s methodological independence from the original Laffey

case and the Laffey Matrix avoids any need to “go down the rabbit hole of trying to determine”

whether an IDEA case is comparable to “complex federal litigation,” Wimbish,

n.3, when deciding whether to award fees at the current USAO Matrix rates. Finally, the

District’s demand for an automatic discount of hours spent litigating in administrative

proceedings, as compared to in federal court, is rejected as without any statutory basis.

The District’s remaining arguments are addressed next.

B. No Fee Reduction is Warranted by Plaintiff’s Degree of Success in 2015 HOD

Despite the plaintiff’s undisputed status as a “prevailing party” in the 2015 HOD, the

District argues for a reduction in any award of attorney’s fees because the plaintiff “achieved a

less than stellar result.” Def.’s Opp’n at 19. While the Supreme Court has indicated that the

district court has broad discretion to reduce fee awards based on success, “the fee award should

not be reduced simply because the plaintiff failed to prevail on every contention raised in the

lawsuit.” Hensley,

.

No reduction in the fee award is warranted in the instant case because the plaintiff

achieved substantial success. The hearing officer concluded that DCPS had denied D.M. a

FAPE and ordered that DCPS “revise the Student’s IEP to reflect that all of his academic

instruction should be specialized instruction in a small classroom setting.” Pl.’s Reply at 11.

Moreover, as discussed above, the plaintiff’s appeal of the administrative decision resulted in 30 substantial additional relief: the District was ordered to provide “a comprehensive IEE with

assessments in all areas and a mandatory IEP meeting to review the reports from the

assessments.”

In assessing the plaintiff’s success in the administrative action for which the

plaintiff now seeks attorney’s fees, consideration of the plaintiff’s ultimate success on appeal is

essential since that result reflects what the hearing officer should have concluded in the first

instance. See Jester v. District of Columbia,

(D.C. Cir. 2007) (“If the parent

wins in district court after losing in the administrative hearing, the parent is eligible to recover

attorney’s fees and costs expended in litigating the controversy from beginning to end.”). The

District’s effort to reduce the fee award with a blinkered focus on the outcome of the 2015 HOD

is simply not persuasive.

The District relies on three IDEA cases in which attorney’s fees were reduced based on

outcomes as support for its position—but those cases are inapposite. Def.’s Opp’n at 18 (citing

A.S. v. District of Columbia,

(D.D.C. 2012) (Rothstein, J.), B.R. v. District of

Columbia,

(D.D.C. 2011) (Urbina, J.), and Dickens v. Friendship-Edison

P.C.S.,

(D.D.C. 2010) (Kay, Mag. J.)). In A.S. v. District of

Columbia, the Court concluded “that plaintiffs attained only half of the relief they sought” in an

administrative proceeding, which apparently was not appealed, and “[t]herefore, …impose[d] a

reduction of 50 percent on the final award of attorneys’ fees.”

.

Likewise, in B.R. v. District of Columbia, the fee award was reduced by half because, though

prevailing on one appealed claim from an HOD, the plaintiffs lost their other “unnecessary”

claim for reimbursement of private school tuition, which had in fact already been paid by DCPS,

was therefore moot, and in the words of the court, “should never have [been] brought.”

. Finally, in Dickens v. Friendship-Edison P.C.S, the fee award was reduced

31 for a plaintiff who prevailed on only one of three claims at an HOD because the losing claims

were asserted against a charter school defendant that “was no longer responsible for [the

student’s] FAPE, as he had transferred to a different school before the hearing,” “resulting in

unnecessary expenditures of time and effort.”

. Thus, in all three of these

cases, the fee awards were reduced for unsuccessful administrative claims that were either not

appealed or firmly rejected on appeal to the district court. By contrast, here, the plaintiff

achieved substantial relief in the 2015 HOD and then obtained additional relief on appeal,

demonstrating the errors made in the 2015 HOD. The District’s apparent position that plaintiffs

should be penalized with reductions in fee awards for errors made in administrative proceedings

that require correction on appeal is counter-productive and rejected.

Notably, the District ignores without comment that in all three of these IDEA cases upon

which it relies, the then extant USAO Laffey Matrix is used to determine the prevailing market

rate and in computing the hourly rate for attorney’s fees. See A.S.,

(finding, over the District’s objection, “that using the Laffey Matrix is appropriate” because

“[t]his was not a ‘straightforward’ due process hearing, but clearly involved complex issues

concerning A.S.’s disability and placement”); B.R.,

(noting that “Courts

in this district routinely refer to the Laffey Matrix to determine the reasonableness of requested

attorney’s fees in IDEA actions,” and that “the Laffey Matrix represents the prevailing rates for

attorneys in the District of Columbia,” and “appropriately uses it as a guide to determine a

reasonable attorney’s fee award” (collecting IDEA cases applying Laffey Matrix)); Dickens,

(recognizing USAO Matrix “as a measure for the reasonableness of

hourly rates in IDEA cases,” and applying those hourly rates without objection from the

defendant, except as to those lawyers whose “actual billing practices” are less and did not show a

32 “public-spirited” motive for the lower rates (citing Jackson v. District of Columbia,

(D.D.C. 2009) (“Courts in this district have routinely held that attorneys’ fees in

IDEA actions are reasonable if they conform to the Laffey Matrix.”)).

In sum, no reduction in the plaintiff’s fee award is warranted based on certain

unsuccessful claims asserted in the administrative proceeding, the majority of which

unsuccessful claims were subsequently corrected on appeal with the award of additional relief.

Further, the cases relied upon by the District in seeking a fee reduction bolster the conclusion

that the current USAO Matrix provides the appropriate hourly rate to apply here.

C. District Concedes Magistrate Judge’s Finding That DCPS Did Not Make A Settlement Offer

The District originally contended that the plaintiff’s motion for attorney’s fees should be

denied “in its entirety” because “the relief ultimately obtained[] was no better than the relief

Plaintiff requested in settlement, and the District offered that relief.” Def.’s Mem. at 19. As

support for this contention, the District presented an email string between counsel to the parties

showing that, on February 12 and 19, 2016, the District outlined in broad terms the steps that the

District “could agree” to take to resolve the litigation. See generally E-mails from Aaron

Finkhousen, Assistant Attorney General, Office of the Attorney General for the District of

Columbia, to Elizabeth Jester, plaintiff’s counsel, ECF No. 53-1. The Magistrate Judge

described these emails as “an open-ended discussion of settlement between the parties without

any clear offer with definite terms being provided by Defendant,” Atty’s Fees R&R at 30, and

therefore declined to reduce or preclude attorney’s fees based on the District’s purported offer.

The District did not object to that finding in the Magistrate Judge’s Report and Recommendation

and, therefore, the District’s settlement offer argument is conceded. See LCvR 72.2(b); Def.’s

33 Notice (Dec. 12, 2018), ECF No. 57 (providing notice that the District “makes no objection to

Magistrate Judge Harvey’s Report and Recommendation”).

Despite this concession, the District nonetheless attempts to resuscitate its settlement

offer argument in its opposition to plaintiff’s objection, asking that the Court award no more than

the amount recommended by the Magistrate Judge because the “Plaintiff unreasonably prolonged

this litigation by declining the District’s offer of settlement.” Def.’s Opp’n Pl.’s Obj. Mem. at 7-

8.

The IDEA provides that “whenever the court finds that [] the parent, or the parent’s

attorney, during the course of the action or proceeding, unreasonably protracted the final

resolution of the controversy … the court shall reduce, accordingly, the amount of the attorney’s

fees awarded.”

(i)(3)(F). Even if it were assumed (contrary to the record and

to the District’s conceding this argument) that the District’s February 19, 2016 email to

plaintiff’s counsel amounted to a formal settlement offer, the claim that the plaintiff

“unreasonably protracted” litigation by not accepting this purported offer is also not supported

by the record. The purported settlement offer was made in February 2016, approximately eight

months after the June 22, 2015 HOD was issued, and approximately five months after the

plaintiff had initiated the lawsuit seeking review of that HOD. Certainly, the plaintiff cannot be

said to have “unreasonably protracted” the final resolution of litigation by declining to accept an

offer of settlement made long after the administrative action was completed, and the appeal of

that decision was filed.

At best, the thrust of the District’s argument is that fees incurred after the February 2016

purported settlement offer should be reduced, but this argument is not well articulated and, in

any event, is also not persuasive. The District speculates that “if Plaintiff would have accepted

34 this offer at the time, perhaps D.M. would not have faced the problems that led to the difficulties

in implementing the Court’s award of additional assessments.” Def.’s Opp’n at 19. The

District’s effort to find fault with the plaintiff’s efforts to address D.M.’s issues borders on the

farcical, given that D.M. languished in an inappropriate placement by DCPS, with insufficient

IEPs developed by DCPS, over the plaintiff’s objections, for at least the two school years of

2014-2015 and 2015-2016, resulting in DCPS being found to have denied D.M. a FAPE. In the

end, it took plaintiff’s filing of two administrative complaints and the instant lawsuit to achieve

D.M.’s placement in a full-time special education program in November 2015 and, finally, to a

residential program in December 2017. In these circumstances, no reduction in the fee award is

warranted by the District’s purported settlement offer.

IV. CONCLUSION

For the foregoing reasons, the plaintiff’s motion is granted. Having prevailed in her

effort to obtain relief under the IDEA, the plaintiff is entitled to reimbursement of attorney’s fees

and litigation costs she incurred in pursing her successful administrative due process claim.

Further, because she has met her burden of justifying her requested reimbursement rate for the

hours her attorney and paralegal reasonably expended in connection with this effort, the plaintiff

is entitled to attorney’s fees at the full USAO Matrix rate. As a result, the District shall pay the

defendant $87,543.03 in attorney’s fees.

An Order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: February 15, 2019

__________________________ BERYL A. HOWELL Chief Judge

35