A.R., on Behalf of Her Minor Child, R v. M.S., on Behalf of Her Minor Child, I.O., M.L., on Behalf of Her Minor Child, J.L. v. New York City Department of Education, S.W. And M.M., on Behalf of N.W. v. Board of Education of the City of New York, (District 2)A.R., on Behalf of Her Minor Child, R v. M.S., on Behalf of Her Minor Child, I.O., M.L., on Behalf of Her Minor Child, J.L. v. New York City Department of Education, S.W. And M.M., on Behalf of N.W. v. Board of Education of the City of New York, (District 2)
Michael D. Hampden, Legal Services for Children, Inc., New York, NY, for plaintiffs-appellees A.R., M.S., and M.L. in Nos. 02-9471, 02-9472, and 02-09473.
Gary S. Mayerson, Mayerson & Associates (Amanda L. Oren, of counsel), New York, NY, for plaintiffs-appellees S.W. and M.M. in No. 03-7258.
SACK, Circuit Judge:
Under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), “[e]ssentially, in order to be considered a `prevailing party’ [to enable a plaintiff to take advantage of a federal fee-shifting statute] ..., a plaintiff must not only achieve some `material alteration of the legal relationship of the parties,’ but that change must also be judicially sanctioned.” Roberson v. Giuliani, 346 F.3d 75, 79-80 (2d Cir. 2003) (quoting Buckhannon, 532 U.S. at 603, 121 S. Ct. 1835). Neither Buckhannon, nor Roberson explaining it, explicitly instructs us, however, how to apply the rule in Buckhannon to fees awarded with respect to the state administrative proceedings relevant to this appeal. Nor has the scope of the district court‘s discretion to determine the amount of such an award been clarified in the context of fees for administrative proceedings.
The plaintiffs-appellees A.R., M.S., M.L., and S.W. and M.M.1 (collectively the “Parents“) instituted four separate New York State administrative proceedings challenging, under the Individuals with Disabilities Education Act (“IDEA“),
The IDEA grants courts the discretionary power to “award reasonable attorneys’ fees ... [to] the prevailing party” “[i]n any action or proceeding brought under” the IDEA.
Although these two appeals have not been consolidated, because of their similarity we heard them together. To resolve them, we must determine, inter alia, whether, through the administrative proceedings for which fees are sought, the Parents each sufficiently achieved a judicially sanctioned “material alteration of the legal relationship of the parties,” or its equivalent, sufficient to entitle him or her to legal fees as the “prevailing party” under the IDEA and Buckhannon, and whether the fee awards conform to IDEA requirements. We ultimately agree with the district judges and therefore affirm.5
The Parents challenged under the IDEA the special educational programs that the DOE had provided for their disabled children.
The M.S. Orders
M.S. participated in two administrative hearings before an IHO on behalf of her child, I.O. The first concluded when the IHO issued a “Statement of Agreement and Order” that recorded the terms of a settlement agreement between M.S. and the DOE.
The M.S. Agreement and Order, signed by the IHO, recites, in part:
[I.O.‘s] parent [M.S.] sought an impartial hearing to obtain compensatory services for him for the remainder of the academic year or until such time as he actually enters a private school. The parent and student were both present at the hearing, and were represented by counsel. The [DOE] was represented by [the] supervisor of psychologists, ... District 4 ....
At the hearing, the parties engaged in extensive discussions held off the record. As a result of these discussions, the parties reached various points of agreement. These were put into the record, with the assent of the parties. [The IHO] issued, where appropriate, orders implementing the points of agreement. These are repeated [in this Statement of Agreement and Order].
In re I.O., Case No. 39106, Statement of Agreement & Order at 2 (Bd. of Educ. of the City of N.Y. Apr. 13, 2000, as corrected Apr. 24, 2000). The Agreement and Order then sets forth the terms of the parties’ agreement, principally that I.O. would receive from the DOE (1) the right to attend private school at the district‘s expense, (2) one-on-one tutoring, therapy, and counseling, and (3) an immediate transfer to a more appropriate public school until I.O. was placed at a private school. The Agreement and Order concludes: “The above points of agreement and orders were issued orally at the hearing, and were fully effective as of the oral issuance. This written Statement of Agreement and Order reiterates and affirms the oral orders and points of agreement.” Id. at 3.
M.S. then sought another hearing on a separate claim, asserting that the first “hearing and agreement did not address issues relating to prior years, because [M.S.]‘s request for the [first] hearing made reference only to the current year.” Letter from Michael D. Hampden, Legal Services for Children, Inc., to the New York City BOE, Impartial Hearing Office of Apr. 24, 2000, at 2. On November 6, 2000, in this second administrative hearing, held before a different IHO, the IHO “so ordered” a three-page written Order and Stipulation of the parties setting forth the terms of a settlement agreement between them. The Order and Stipulation provides that M.S.‘s son I.O. is entitled to receive from the DOE three years of “compensatory education,” to be provided after he graduates or reaches the age of twenty-one, whichever comes first. At a telephonic hearing the same day, transcribed and reduced to a verbatim transcript, the IHO stated that he would order, and thereby give effect to, the terms of the parties’ agreement.
[IHO]: Okay, I understand that you‘ve both settled ... this case?
[Lawyer for I.O.]: That‘s right.
[Lawyer for DOE]: Yes.
[IHO]: And, you‘ve settled it pursuant to an order and stipulation that the [DOE] faxed me about a half hour ago. Correct?
[Lawyer for DOE]: Yes.
[Lawyer for I.O.]: That‘s right.
[IHO]: Okay, then at this point, I will so order, and sign the order and stipulation and mark this case as settled.
[Lawyer for DOE]: Great.
[Lawyer for I.O.]: Thank you.
[IHO]: Are there any objections for the [DOE]?
[Lawyer for DOE]: No.
[IHO]: [Inquiring the same of the lawyer for I.O.:]
[Lawyer for I.O.]: No.
[IHO]: Okay, then the order is hereby — I hereby order the stipulation to be put into [e]ffect, and I‘ll send the paperwork in.
[Lawyer for DOE]: Wonderful.
The M.L. Order
M.L. challenged the DOE‘s treatment of her child J.L. in a proceeding that also culminated in a settlement agreement among the parties. On May 14, 2001, the IHO recited the terms of the agreement orally at the conclusion of a brief administrative hearing. He preceded the recitation with the following observations:
[IHO]: Okay. We had an off the record discussion regarding this matter. I‘ll just recap some things. .... [J.L.]‘s supposed to be provided with a bilingual teacher.... For some reason, that service hasn‘t been provided .... .... So that‘s why we‘re here today because ... [J.L.]‘s mother[] was asking that the service be provided and that I so order. The [BOE and the lawyers for all parties] [seem to] have ... come to an agreement. Basically, they‘re stipulating to an agreement which they have asked me to order. In fact, the stipulation and agreement that I will order will read as follows....
Tr. of Hearing, May 14, 2001, at 4, In re J.L., Case No. 42736. The agreement was also reflected in a written “Statement of Agreement and Order.” The Agreement and Order concluded:
STATEMENT OF AGREEMENT AND ORDER
Accordingly, the parties AGREE and it is SO ORDERED, that on an interim basis, the Board pay to ... a [specified] speech and language therapist, or to any other provider on the Board Related Services Provider list, the fees incurred for providing [J.L.] with monolingual [English] services three forty-five-minute sessions per week through [a specified date].
In re J.L., Case No. 42736, Statement of Agreement and Order at 2-3 (Bd. of Educ. of the City of N.Y. May 17, 2001). The document was dated and signed by the IHO only. Id. at 3.6
The A.R. Decision
In the proceeding that A.R. brought on behalf of her child R.V., the IHO ordered the DOE (1) to determine a new individualized educational plan (“IEP“) for R.V., (2) to pay for R.V. to attend private school, and (3) to provide R.V. with one year of additional “compensatory services” to support R.V.‘s developing skills to participate in general education. In re R.V., Case No. 42764, Findings of Fact and Decision at 9 (Bd. of Educ. of the City of N.Y. June 14, 2001).
The S.W. and M.M. Decision
In the hearing that S.W. and M.M. brought on behalf of their child N.W., the IHO ordered the DOE to provide additional behavioral, occupational, and speech therapy for N.W. and to reimburse S.W. and M.M. for the costs incurred in providing such additional therapy prior to the IHO decision. In re I.O., Case No. 39106, Findings of Fact and Decision at 15-16 (Bd. of Educ. of the City of N.Y. Feb. 18, 1999, as amended Mar. 23, 1999).
Retention of Counsel
Before instituting these administrative proceedings, the Parents all retained counsel to represent them. Two lawyers, Todd Silverblatt and Michael Hampden, associated with Legal Services for Children (“LSC“), a not-for-profit legal services organization that specializes in, inter alia, education law, represented A.R., M.S., and M.L. (the “LSC plaintiffs“) in their administrative hearings. LSC did not charge the LSC plaintiffs legal fees. Instead, the LSC plaintiffs assigned to LSC their rights to recover from the DOE under the fee-shifting provisions of the IDEA. That is “how [LSC] obtains a good portion of its funding.” M.S. ex rel. I.O. v. N.Y. City Bd. of Educ., Nos. 01 Civ. 4015, 01 Civ. 10871, 01 Civ. 10872, 2002 WL 31556385, at *1 (S.D.N.Y. Nov. 18, 2002). Gary Mayerson represented S.W. and M.M. in their IDEA hearing, S.W. ex rel. N.W. v. Bd. of Educ. (Dist. Two), 257 F. Supp. 2d 600, 602, 604 (S.D.N.Y. 2003), for which representation he charged them legal fees.
Following the completion of the administrative hearings, LSC, and Mayerson on behalf of S.W. and M.M., requested attorneys’ fees from the DOE. For the representation of M.S., LSC sought from the DOE a total of $3,225, reflecting 20.5 hours of legal services rendered by Hampden and Silverblatt. Hampden and Silverblatt billed at an hourly rate of $250 per hour for 12.9 hours and offered to provide 7.6 hours of services without charge. For the representation of M.L., LSC sought from the DOE $2,370, which reflected 7.0 hours of legal services, primarily provided by Hampden at a rate of $350 per hour. For the representation of A.R., LSC sought from the DOE $3,458.50, which reflected primarily 9.25 hours of legal services rendered by Hampden at a rate of $350 per hour. For his representation of S.W. and M.M., Mayerson, on behalf of his clients, sought from the DOE $14,747, which reflected 40.4 hours of legal services rendered by Mayerson at a rate of $365 per hour. The DOE refused to pay any of the fee requests on the grounds that the hourly rates of $250 to $365 per hour were unreasonable.
Thereafter, the Parents filed complaints in the United States District Court for the Southern District of New York claiming that they had been denied attorneys’ fees to which they were entitled under the IDEA. On April 30, 2002, after the LSC plaintiffs’ cases were consolidated, they moved for summary judgment, seeking a total award of $18,706, of which $13,003.50 represented legal services rendered in the course of the administrative representation of the LSC plaintiffs7 and $5,702.50 reflected lawyers’ fees for the district court litigation for attorneys’ fees itself. Together with their summary judgment motion, the LSC plaintiffs included affidavits supporting their assertion that $350 per hour was the hourly “rate[] prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.”
On October 31, 2002, in a separate proceeding before Judge Scheindlin, S.W. and M.M. filed a motion for attorneys’ fees, requesting fees for Mayerson‘s services at a rate of $350 to $375 per hour. The DOE did not contest that S.W. and M.M. were “prevailing parties” as a result of the relief granted them in their administrative proceedings. The DOE asserted, however, that the fees sought were not reasonable, and that a rate of $125 to $190 per hour was proper for the services provided.
On February 26, 2003, the district court granted S.W. and M.M. $10,644.73 in attorneys’ fees and related expenses for their administrative hearings. Relying in part on the award of attorneys’ fees to the LSC plaintiffs in their action, the court found that $350 per hour was a reasonable rate for Mayerson‘s legal representation during the administrative proceedings. S.W., 257 F. Supp. 2d at 604-05. The court also found that Mayerson “spent a total of 30.2 hours in connection with the administrative proceedings” but reduced this figure slightly because it found that some of the relevant time records were vague or incomplete. Id. at 606-07. The court also determined that Mayerson spent 6.8 hours on the fee application process in the district court and that, because Mayerson‘s expertise had increased since he represented S.W. and M.M. in their administrative proceedings in 1999, the reasonable rate for these services was $375 per hour. Id. at 607. The court awarded the plaintiffs $3,998.15 in attorneys’ fees8 and related costs in connection with the fee application. Id. at 609.
DISCUSSION
I. The IDEA
The IDEA aims “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.”
To further ensure that children with disabilities receive “free appropriate public education[s]” the IDEA provides that “[i]n any action or proceeding brought under [the IDEA], [a] court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.”
II. The DOE‘s Position on Appeal
The DOE challenges the district court‘s awards of attorneys’ fees in four respects. First, the DOE contends that M.S. and M.L. are not “prevailing parties” eligible for attorneys’ fees because they did not obtain decisions on the merits in their administrative hearings and because the “so-ordered” settlement agreements, over which the IHOs did not retain enforcement jurisdiction, did not constitute consent decrees. Second, the DOE argues that the “community” for determining the appropriate hourly rate for attorneys’ fees should be the community of practitioners who appear before the DOE for IDEA hearings, rather than the community of practitioners in the federal district in which the fee application was commenced. Third, the DOE argues that the district court abused its discretion in determining that rates of $350 to $375 per hour were reasonable for the Parents’ counsel‘s representation with respect to administrative hearings, because such representation “is simply of a different `kind and quality’ than the more sophisticated legal services required to vindicate statutory or constitutional rights in a federal forum.” Appellant‘s Br. at 53, A.R. ex rel. R.V. v. N.Y. City Dep‘t of Educ.; see also Appellant‘s Br. at 29-30, S.W. ex rel. M.M. v. Bd. of Educ. (Dist. Two). Finally, the DOE asserts that fee disputes in federal court are “ancillary” to the underlying administrative proceedings, and, consequently, the district court erred in awarding S.W. and M.M. fees at a higher rate for their fee application in the district court than for representation during administrative proceedings.
III. Standard of Review
Generally, we review a district court‘s grant of attorneys’ fees under the IDEA for abuse of discretion.
“Because the district court decided th[ese] case[s] at the summary judgment stage, ... we also must reverse its decision[s] if [they] required the resolution of any genuinely disputed material fact.” G.M. v. New Britain Bd. of Educ., 173 F.3d 77, 80 (2d Cir. 1999). “A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.‘” Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), cert. denied, 526 U.S. 1065 (1999).
IV. Are the Parents “Prevailing Parties“?
A. Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources
The IDEA, as noted, contains a fee-shifting provision under which a “prevailing party” may recover attorneys’ fees from the party against which it prevailed. See
Fee-shifting provisions in federal statutes are not uncommon — “[n]umerous federal statutes allow courts to award attorney‘s fees.” Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001).10 Until the Supreme Court‘s decision in Buckhannon, this Court and most other United States Courts of Appeals, in interpreting those statutes, often employed the so-called “catalyst theory,” id. at 601-02 & n. 3; Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003), which “posits that a plaintiff is a `prevailing party’ if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant‘s conduct,” Buckhannon, 532 U.S. at 601. “Under the catalyst theory, a court could award attorneys’ fees based solely upon a private agreement among the parties settling their dispute, even though no legal relief such as a consent decree had been obtained.” Pres. Coalition v. Fed. Transit Admin., 356 F.3d 444, 450 (2d Cir. 2004).
The Buckhannon Court addressed the validity of the “catalyst theory” in the context of an award made pursuant to fee-shifting provisions of the Fair Housing Amendments Act of 1988 (“FHAA“),
A defendant‘s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney‘s fees without a corresponding alteration in the legal relationship of the parties.
id. at 605 (emphasis in original).
B. Application of Buckhannon to Fees under the IDEA
We begin our analysis of the application of Buckhannon to the IDEA on substantial common ground.
1. Buckhannon‘s Application to IDEA Fees. First, the parties recognize that we “interpret the IDEA fee provisions in consonance with those of other civil rights fee-shifting statutes.” I.B. ex rel. Z.B. v. N.Y. City Dep‘t of Educ., 336 F.3d 79, 80 (2d Cir. 2003) (per curiam); accord Roberson, 346 F.3d at 79 n. 3; J.C. v. Reg‘l Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 123-24 (2d Cir. 2002). Hence, “the standards used to interpret the term `prevailing party’ under any given fee-shifting statute `are generally applicable in all cases in which Congress has authorized an award of fees to a “prevailing party.“‘” id. at 123 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7 (1983)).
Those standards include the requirements set forth in Buckannon. As we observed in J.C., ”Buckhannon concerned the fee-shifting provisions of the Americans with Disabilities Act of 1990 ...,
2. Fees Where an IHO Orders Relief on the Merits. Second, the parties agree, as do we, that a plaintiff who receives IHO-ordered relief on the merits in an IDEA administrative proceeding is a “prevailing party.” He or she may therefore be entitled to payment of attorneys’ fees under the IDEA‘s fee-shifting provisions.
The statute itself requires this conclusion. The IDEA permits a court to “award reasonable attorneys’ fees” to a “prevailing party” “[i]n any action or proceeding brought under” the statute.
We agree, then, with the DOE that:
[I]t is well settled that attorney[s‘] fees are available to parents who prevail at an impartial due process hearing. This Court implicitly so ruled in Vultaggio v. [Board of Education] .... Other Circuits have explicitly held that attorney[s‘] fees are available for appearances at an IDEA due process hearing.
We recognize that the situation before us differs from the one confronted by the Supreme Court in Buckhannon: the application of the FHAA‘s and ADA‘s fee-shifting provisions to plaintiffs who had brought suit in federal court. Here, by contrast, we consider the operation of the IDEA‘s fee-shifting provisions when applied to administrative proceedings. Buckhannon‘s language in this regard therefore does not map perfectly onto the meaning of “prevailing party” as used in the context of IDEA administrative proceedings.
Concepts of “relief on the merits,” Buckhannon, 532 U.S. at 603, “material alteration of the legal relationship of the parties,” id. at 604 (quoting Tex. State Teachers Ass‘n, 489 U.S. at 792-93), and “consent decree,” id., for example, have an obvious meaning when applied to both judicial actions as in Buckhannon and the administrative proceedings before us. But the Buckhannon Court also referred to ”judicially sanctioned change in the legal relationship of the parties,” id. at 605 (emphasis added), ”judicial imprimatur,” id. (emphasis added), and ”judicial approval and oversight,” id. at 604 n. 7 (emphasis added), as hallmarks of actions that may give rise to “prevailing party” status. Because of their reference to judicial action, these factors cannot serve literally as part of a test for differentiating between those outcomes of purely administrative IDEA proceedings that give rise to a plaintiff‘s “prevailing party” status and those that do not.
But an IHO‘s decision on the merits in an IDEA proceeding does constitute ”administrative imprimatur.” Although not “judicial,” such an order changes the legal relationship between the parties: Its terms are enforceable, if not by the IHO itself, then by a court, including through an action under
3. The “Catalyst Theory” in the Context of IDEA Fee Awards. Third, to paraphrase a passage in Buckhannon: Where an administrative proceeding results in a purely private settlement, a defendant‘s change in conduct, although perhaps accomplishing what the plaintiff sought to achieve, lacks the necessary administrative imprimatur on the change in the legal relationship between the parties. See Buckhannon, 532 U.S. at 605. We therefore think it plain, and the parties agree, that under Buckhannon, a settlement of an IDEA administrative proceeding between the parties, followed by a dismissal of the proceedings — without more — does not render the plaintiff a “prevailing party” for statutory fee-shifting purposes no matter how favorable the settlement is to the plaintiff‘s interests. To permit such a fee award would be to reinstate the use of the now forbidden “catalyst theory.” Because of the absence of administrative imprimatur, such an award “falls on the other side of the line,” id., that separates such a settlement from orders that give rise to “prevailing party” status.
A.R‘s administrative hearing and S.W and M.M.‘s administrative hearing each resulted in an order in favor of the parent or parents and against the DOE. The DOE does not contest the district court‘s determination that those parents were “prevailing parties.”
D. M.L.‘s and M.S.‘s Administrative Proceedings
Based on the foregoing analysis, we agree with the Parents’ position that M.L. and M.S. are also entitled to “prevailing party” status in the IHO proceedings in connection with which they each obtained an administrative analog of a consent decree. we perceive no reason to distinguish the outcomes of those proceedings from those obtained by A.R. and S.W. and M.M. in theirs. we do not think that the fact that the terms of the M.L. and M.S. orders arose out of an agreement between the parties, rather than out of the wisdom of the IHO, matters.12
Buckhannon established, in the context of judicial proceedings, that “court-ordered consent decrees create the `material alteration of the legal relationship of the parties’ necessary to permit an award of attorney‘s fees.” 532 U.S. at 604. The M.L. and M.S. orders were, in substance, administrative consent decrees. See 2 Charles H. Koch, Jr., Administrative Law and Practice § 5.43, at 155 (2d ed. 1997). we think that they evidence the same combination of administrative imprimatur, change in the legal relationship of the parties, and judicial enforceability that renders the winner on the merits in an IHO decision, such as A.R. and S.W. and M.M., a “prevailing party” under the IDEA and Buckhannon.
By contrast, had the agreements between M.L. and the DOE, and M.S. and the DOE, been purely private — occasioned by the proceedings but not ordered by the IHOs — M.L. and M.S. would not have been “prevailing parties.” To hold otherwise would be to give effect to the “catalyst theory” disapproved in Buckhannon. Had the IHOs done no more than dismiss the cases following settlement, their involvement to that extent would not be enough. But they did more: They incorporated the terms of the settlements in dispositive administrative orders.13
Our view of Buckhannon‘s teaching is buttressed by the Supreme Court‘s previous decision in Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994). The Kokkonen Court confronted a related issue: whether a court maintains jurisdiction to enforce a settlement agreement when it does no more than “so-order” a stipulation and order of dismissal that dismisses the complaint after settlement without “so much as refer[ing] to the settlement agreement.” Id. at 376-77. Kokkonen held that it does not. Id. at 381-82. But, the Court noted,
[t]he situation would be quite different if the parties’ obligation to comply with the terms of the settlement agreement had been made part of the order of dismissal — either by separate provision ... or by incorporating the terms of the settlement agreement in the order. In that event, a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist.
We conclude that M.L. and M.S. were “prevailing parties” entitled to attorneys’ fees under
V. Calculation of Attorneys’ Fees
The IDEA provides that the fees that district courts award must be “reasonable” and “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.”
A. Community in Which the Action or Proceeding Arose
The DOE complains that the district judges wrongly looked to the legal “community” of the Southern District of New York, where they sit, rather than to the community of all practitioners appearing before the DOE in IDEA administrative actions, to measure the level of legal fees to be awarded to the Parents’ counsel.15
The “community” to which the IDEA‘s fee calculation provision refers is typically measured by the geographic area in which “the action was commenced and litigated.” Arbor Hill Concerned Citizens Neighborhood Ass‘n v. County of Albany, 369 F.3d 91, 94 (2d Cir. 2004) (per curiam) (analyzing similar provision in Voting Rights Act of 1965). Where the legal dispute has been pursued through an action in federal court, “[n]ormally a district court, awarding attorney‘s fees under [a fee-shifting statute], will consider the prevailing rates in the district in which the court sits.” Polk v. N.Y. State Dep‘t of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983) (analyzing award of attorney‘s fees under
The disputes in the cases before us were pursued through IDEA administrative proceedings, not the district court. The DOE exercises jurisdiction over public schooling in the five boroughs of the City of New York, three of which lie within the jurisdiction of one United States District Court and two of which are in another. The students involved in these proceedings attended schools in Bronx and New York Counties, both in the Southern District of New York; administrative hearings were held there as well as in Kings County, which is in the Eastern District. The Parents’ lawyers have their offices in New York County, in the Southern District. Our case law does not provide us with a litmus test for determining, in these circumstances, the “community” in which the proceedings for which the Parents were awarded legal fees “arose.” See, e.g., I.B., 336 F.3d at 81 (considering issue of whether fees under IDEA should reflect rates for general litigation or for representations in administrative hearings only, without addressing choice of community); G.M., 173 F.3d at 84 (remanding for determination of fees under IDEA without discussing the community the district court should consider in determining fees).
The Parents urge us to affirm the district court‘s fee awards because the awards comply with the “typical” rule. They suggest that the cases arose entirely or principally in the Southern District of New York and contend that the district court therefore properly treated the rates prevailing in the Southern District as the fee structure against which the attorneys’ fees here should be measured. The DOE contends to the contrary that the relevant community must be co-extensive with the group of lawyers who bring IDEA actions against the DOE: in other words, that the district court must refer to rates across the five boroughs of the City of New York in determining a reasonable rate for representation in IDEA hearings.
The text of
The DOE expresses a concern that, under what it sees as the district court‘s district-specific approach, the same lawyer may be paid at different hourly rates for services rendered in similar proceedings against the same defendant depending upon the happenstance of where in New York City, and therefore in which federal district, “the action or proceeding [against the DOE] arose.” But such distinctions are inherent in any approach that distinguishes between the level of legal payments in different districts when setting the rate at which legal fees are to be awarded: The same lawyer may be paid at different rates with respect to otherwise identical legal services provided in cases heard in the Southern District of New York (New York County (Manhattan), Bronx County, and points north) from those at which he or she is paid with respect to legal services provided in cases heard in the Eastern District of New York (Richmond County (Staten Island), Kings County (Brooklyn), Queens County, and points east). So long as the law provides for or permits fee awards based on geographic markets for services, a lawyer may be paid at different rates for otherwise indistinguishable services. As the District of Columbia Circuit observed, this approach provides
a neutral rule which will not work to any clear advantage for either those seeking attorneys’ fees or those paying them. High-priced attorneys coming into a jurisdiction in which market rates are lower will have to accept those lower rates for litigation performed there. Similarly, some attorneys may receive fees based on rates higher than they normally command if those higher rates are the norm for the jurisdiction in which the suit was litigated.
Donnell v. United States, 682 F.2d 240, 251-52 (D.C. Cir. 1982), cert. denied, 459 U.S. 1204 (1983).16
We acknowledge, on the other side of the ledger, that there is good reason for a district court not to be wed to the rates in its own community. If they are lower than those in another district, skilled lawyers from such other district will be dissuaded from taking meritorious cases in the district with lower rates. If lawyers are paid for their participation in IDEA proceedings that clearly arise in Queens at a rate considerably lower than what they are paid for representation in proceedings that clearly arise in Manhattan, experienced, Manhattan-based lawyers like Mr. Hampden, Mr. Silverblatt, and Mr. Mayerson may decide to devote their time and expertise to IDEA cases that arise in Manhattan rather than those cases in which parents are equally needful of their services, but that arise in Queens.17
But we need not arrive at a crisp rule that a district court must employ to make this determination. we have held in somewhat comparable circumstances that the district court has discretion — to be sure, discretion that may not be abused — to determine the relevant community for calculating attorneys’ fees where the case was not commenced and litigated in a single federal district. See Polk v. N.Y. State Dep‘t of Corr. Servs., 722 F.2d 23, 24 (2d Cir. 1983) (concluding, where the case was justifiably commenced in the Southern District but later transferred to the Northern District for improper venue, that the district court “had discretion to award a fee based on either the Southern District or Northern District“).
Similarly here, there is more than one community that the district court might reasonably have considered in determining fees.
But the contacts between the administrative proceedings and the Southern District, which is the place where the clients reside, where the facts giving rise to their successful claims occurred, and where the lawyers who represented them hang their shingles, appear clearly to predominate. By comparison, the fact that the DOE held hearings on the other side of an intra-city bridge provides minimal support for treating the place where the proceedings were held as that in which they “arose” on the facts of these cases. Although none of this means that the district court was required to reach the result that it did, it does confirm that the court did not abuse its discretion in treating the Southern District as “the community in which the ... proceeding arose,” and therefore in relying primarily on the level of legal fees charged by comparable lawyers in comparable circumstances in the Southern District of New York in setting legal fees for the plaintiffs under theB. Reasonableness of the Rate
1. Fees in M.S.‘s, M.L.‘s, and A.R.‘s cases. As we have noted, the district court credited the affidavits submitted on behalf of M.S., M.L., and A.R. in which special education lawyers represented that they charged fees of $300 to $350 per hour in the Southern District. M.S., 2002 WL 31556385, at *4 & n. 2, 2002 U.S. Dist. LEXIS 22220, at *12-*13 & n. 2. The district court also observed that in 1998, the Southern District awarded attorneys’ fees at an hourly rate of $375 for representation at an IDEA hearing and subsequent litigation in federal court. M.S., 2002 WL 31556385, at *5, 2002 U.S. Dist. LEXIS 22220, at *14 (citing Mr. X v. N.Y. State Educ. Dep‘t, 20 F.Supp.2d 561, 565 (S.D.N.Y.1998)). It was not an abuse of discretion for the district court to credit evidence submitted by the plaintiffs instead of countervailing evidence submitted by the defendant. See I.B. ex rel. Z.B. v. N.Y. City Dep‘t of Educ., 336 F.3d 79, 81 (2d Cir.2003) (per curiam).
The district court found unpersuasive the affidavits and arguments submitted by the DOE indicating that the prevailing rate should be $125 to $175 per hour. See M.S., 2002 WL 31556385, at *5, 2002 U.S. Dist. LEXIS 22220, at *16-*17. Similarly, the district court found irrelevant the two lawyers’ declarations supporting the DOE‘s assertion that a lower hourly rate was appropriate. See M.S., 2002 WL 31556385, at *5 n. 4, 2002 U.S. Dist. LEXIS 22220, at *16 n. 4. The court also found unpersuasive the DOE‘s records of the amounts that it previously paid to lawyers for representation at IDEA administrative hearings. See M.S., 2002 WL 31556385, at *5, 2002 U.S. Dist. LEXIS 22220, at *15-*17. The court noted that these figures did not accurately represent market figures because many of these payments involved settlements for amounts substantially less than the requested attorneys’ fees. See id. We conclude that the district court did not abuse its discretion when it determined, based on the evidence before it, that a range of $300 to $350 was reasonable for representation at the administrative hearings.
Nor did the district court abuse its discretion in awarding the LSC lawyers fees at the top end of this range based on their experience.18 Even though much of the lawyers’ careers was spent practicing in areas other than education law, their overall legal experience merited a higher hourly rate because “most important legal skills are transferrable.” I.B., 336 F.3d at 81. Indeed, we have observed that Mr. Hampden, who is one of the lawyers in the instant case, possesses considerable experience in education law despite having spent much of his career focusing on different kinds of law. Id.
2. Fees in S.W. and M.M.‘s case. In S.W. and M.M.‘s case, the district court awarded fees for representation during the administrative hearing at the rate of $350 per hour. S.W., 257 F.Supp.2d at 604-05. S.W. and M.M.‘s child, N.W., attended school in Manhattan. Their administrative proceedings appear to have taken place in Brooklyn. In awarding them fees at an hourly rate of $350 for the administrative hearings, the district judge relied upon the decisions in M.S., 2002 WL 31556385, at *4 n. 2, 2002 U.S. Dist. LEXIS 22220, at *13 n. 2, and Mr. X, 20 F.Supp.2d at 563-64, that such a rate was reasonable for services of this type in the Southern District. S.W., 257 F.Supp.2d at 604. The district court also relied on its decision in R.E. ex rel. Z.E. v. New York City Board of Education, District 2, No. 02 Civ. 1067, 2003 WL 42017, at *2, 2003 U.S. Dist. LEXIS 58, at *6-*7 (S.D.N.Y. Jan. 6, 2003), in which it concluded that $350 per hour in 1998 and $365 per hour in 1999 were reasonable hourly rates for Mayerson for representation in IDEA administrative hearings. S.W., 257 F.Supp.2d at 604-05. For the reasons stated above, the district judge in S.W. and M.M.‘s case had the discretion to consider the Southern District as the relevant community in setting fees. Because we affirm the court‘s decision in M.S., we also find here that awarding fees at a rate of $350 was not an abuse of discretion.
The district court awarded S.W. and M.M. attorneys’ fees at a rate of $375 per hour for their fee application in the district court. Id. at 607. The district court awarded a higher rate for the fee application because it found that attorney Mayerson‘s expertise, experience, and fees had increased from the time of the administrative hearings. Id. The DOE contends that the hourly rate for the fee dispute in the district court should, as a matter of law, be the same as the rate for representation for the earlier administrative representation because “the fees application is ancillary to the administrative proceeding.” Appellant‘s Br. at 38, S.W. ex rel. N.W. v. Bd of Educ. (Dist.Two). We disagree. An award of attorneys’ fees under the “lodestar [method] should be based on prevailing market rates, and current rates, rather than historical rates, should be applied in order to compensate for the delay in payment.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir.1998) (internal quotation marks and citations omitted). A district court awarding attorneys’ fees for both administrative proceedings and a subsequent fee dispute therefore need not determine the fees for the later action on the basis of the earlier administrative proceeding.
C. For the Kind and Quality of Services Furnished
The DOE argues that because
While any comparison of degrees of difficulty of administrative and judicial hearings may itself raise considerable difficulties, we conclude that we need not address that issue here. The district court, in determining attorneys’ fees for the administrative proceedings, relied substantially on hourly rates for representation in administrative proceedings. Cf. I.B., 336 F.3d at 81 (declining to decide whether hourly rates for representation in IDEA administrative hearings must be decided on the basis of “what other counsel charge `at Impartial Hearings‘” because the district court‘s fee award was already based on such information). Two of the affidavits that were submitted by the LSC plaintiffs in support of their motions for attorneys’ fees describe lawyers’ hourly rates in the Southern District of New York for administrative representation. As we have noted, both district judges relied on the court‘s previous decision in Mr. X, which involved attorneys’ fees for IDEA administrative hearings. See S.W., 257 F.Supp.2d at 604 (citing Mr. X, 20 F.Supp.2d at 563-64); M.S., 2002 WL 31556385, at *5, 2002 U.S. Dist. LEXIS 22220, at *14 (same). And in S.W., the district court also relied on M.S., which, of course, also deals with fees in administrative hearings. S.W., 257 F.Supp.2d at 604. Whether or not it would have been an abuse of discretion for either judge to rely solely on the level of attorneys’ fees prevailing in judicially litigated matters, they did not do so here.
D. Counsel Fees on Appeal
Counsel may be entitled to further legal fees in connection with their defense of this appeal by the DOE. See G.M. v. New Britain Bd. of Educ., 173 F.3d 77, 84 (2d Cir.1999) (awarding attorneys’ fees for an appeal brought in connection with an IDEA proceeding). We remand for the respective district judges to determine whether they are, and if so, the amount of such fees.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court, but remand these cases to the respective district judges for a determination of attorneys’ fees for legal services rendered with respect to this appeal, if any.