MEMORANDUM OPINION
This matter is before the Court on the Plaintiffs’ Petition for Attorney Fees and Expenses Exclusive of Costs for Education at Dominion School for
JP I
and
JP III
BACKGROUND
JP’s family moved to Virginia in late 2000, and JP began school as a first grader at Battlefield Park Elementary School in Hanover County in January 2001. JP was enrolled in the Hanover County Public Schools (“HCPS”) special education program from January 2001 until May 7, 2003.
In May 2003, JP’s parents removed him from HCPS and placed him in the Spiritos School (“Spiritos”), a private specialty school for children with autism, because his parents were concerned that JP was not making adequate progress at the public school. JP made significant gains at Spiritos during the following year, but JP’s parents wanted him to succeed in the public school system and took steps to re-enroll him in HCPS for the 2004-2005 school year.
JP’s parents brought a due process challenge against HCPS (the “2003 Dispute”) based on their dissatisfaction with the education that JP received at Battlefield Park. This dispute was settled without a hearing, and resulted in both a monetary settlement and concessions from HCPS.
Thereafter, as provided by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415 et seq., an individualized education plan (“IEP”) team, including JP’s parents, convened in the summer of 2004 to design an appropriate IEP for JP at HCPS. The product of those meetings was an IEP signed on August 17, 2004 (“2004 IEP”) which placed JP in a special education program at the Rural Point Elementary School. Because of JP’s success at Spiritos, the parents sought to obtain, and, in fact, were promised in the 2004 IEP, an educational program at Rural Point that would use many of the same educational methods used at Spiritos. Indeed, the 2004 IEP incorporated parts of the settlement of the 2003 Dispute.
JP began at Rural Point in September 2004 under the curriculum set forth in the 2004 IEP, but, throughout the school year, JP’s parents had concerns about JP’s progress. Despite various requests of the school to assess JP’s progress and to adjust his curriculum, the parents ultimately came to the view that JP was actually regressing rather than progressing, and so informed HCPS. HCPS contended, to the contrary, that JP was making sufficient progress. By June 2005, JP’s parents and HCPS had vastly different views on whether the 2004 IEP had provided JP with educational benefit and, when HCPS proposed an IEP for 2005-2006 (“2005 IEP”) that was substantially the same as the 2004 IEP, JP’s parents asked HCPS to provide JP with a private placement at public expense at a local specialty school such as Spiritos, where JP formerly had great success. HCPS refused that request, and JP’s parents subsequently rejected the proposed IEP for the 2005-2006 school year.
Thereafter, the parents, pursuant to IDEA, filed a request with the State for a due process hearing to challenge the adequacy of the 2004 and 2005 IEPs before an impartial administrative hearing officer. The due process hearing was held on July 25, and September 29 and 30, 2005.
1
The
On January 11, 2005, pursuant to the IDEA, JP’s parents filed a seven-count complaint in this Court seeking a review and reversal of the State Hearing Officer’s ruling. Although the complaint contained seven counts, the parties agreed that each of the counts alleged in the complaint related solely to the question whether the June 2005 IEP satisfied the requirements of IDEA and the relevant decisional law, and whether the parents were entitled to reimbursement for the cost of educating JP at Dominion during the 2005-2006 school year. After extensive hearings and briefing, the Court concluded: that the 2005 IEP did not provide an appropriate education as required by the IDEA; that Dominion was an appropriate placement for JP; that HCPS must reimburse JP’s parents for “the reasonable costs of educating JP at the Dominion School and any related services and accommodations that would have been covered under the IDEA had HCPS provided JP with an appropriate education during the 2005-2006 school year;” and that JP’s parents were “entitled to reasonable attorney’s fees as permitted by the IDEA and governing decisional law.”
See JP ex rel. Peterson v. County Sch. Bd. of Hanover County, Va.,
On appeal, the United States Court of Appeals for the Fourth Circuit held that this Court had accorded insufficient deference to the decision of the State Hearing Officer, vacated the Court’s decision, and remanded for reconsideration the merits of the case.
JP ex rel. Peterson v. County School Bd. of Hanover County, Va.,
After remand, the parties determined that no further evidence was needed, but the case was rebriefed on the merits of the IDEA claim. On December 16, 2008, the Court entered an order and memorandum opinion in which, after according deference to the State Hearing Officer’s decision, found in favor of the plaintiffs, holding that HCPS did not provide JP with a FAPE during the 2005-2006 school year because it did not proffer an IEP that was reasonably calculated to provide JP with an educational benefit and that Dominion was an appropriate placement for JP during the 2005-2006 school year. (Mem. Op. (hereinafter JP III) at 77.) Pursuant to that holding, the Court found that HCPS was liable to JP’s parents for the cost of educating JP for the 2005-06 school year at Dominion. (Id.) JP’s parents were directed to file a statement of those costs. (Order dated December 16, 2008 (Docket Number 108).) JP’s parents also were directed to provide a properly documented application for their attorneys’ fees for the original litigation (ie., JP I), the appellate litigation (ie., JP II), and the pending litigation (ie., JP III). (Order dated December 16, 2008 (Docket Number 109).)
Both parties have now filed briefing on those issues. Their arguments about each
DISCUSSION
1. Damages
Under the IDEA, a court may order a public school system to reimburse parents for the cost of enrolling their child at an appropriate private school when the court finds that the public school had not made a free appropriate public education available to that child.
See
20 U.S.C. §§ 1412(a)(10)(C)(ii), 1415(i)(2)(B)(iii). Therefore, the Plaintiffs are entitled to be reimbursed for the full, year-round cost of tuition for, and travel to and from, the Dominion School.
See M.S. ex rel. Simchick v. Fairfax County Sch. Bd.,
The Plaintiffs also are entitled to a reasonable rate of interest to compensate them for tuition payments made on their credit cards. The Court has broad diseretion to award appropriate relief in this case, and the 6% interest rate agreed to by the parties is appropriate.
2
see Florence County Sch. Dist. Four v. Carter,
After the decision in
JP I,
the Court found that the cost attributable to educating JP at Dominion for the 2005-06 school year was $33,187.90.
See JP,
During the relevant time period, Dominion charged $2,500 per month in tuition, for a total of $30,000 for the 12-month school year. (PI. Damages Stmnt. at 2.) The Plaintiffs also incurred $397.21 in credit card interest. (Id. at 4.) The Plaintiffs have produced documentation demonstrating that they incurred $1,627.63 in transportation expenses. (Id. at 5.) Finally, the Plaintiffs seek reimbursement for $350 in credit card processing fees—$50 for each tuition payment paid by credit card. (Id. at 2-3.)
As explained in the original opinion on damages, the transaction fees will be reimbursed because they were not expenses that could have been avoided by the Plaintiffs, unlike the credit card late fees and, arguably, the high credit card interest rates.
JP,
That argument fails, however, because the Plaintiffs have documented this aspect of their claim. Plaintiffs’ Exhibit B is a letter from Jennifer Wood, President of Dominion, which indicates that the Peter-sons paid $2550.00 per month to Dominion from December 2005 to August 2006— $50.00 more per month than monthly tuition at Dominion. That is consistent with the credit card statements provided by the Plaintiffs covering those months. (See PI. Damages Stmnt. at Exs. G-M.) It is, therefore, clear from the record that the total payments made to Dominion during the 2005-06 school year, including tuition itself and necessary ancillary expenses, were $30,350 ($7,300 for the months of September through November, and 23,050 for the months of December through August). (See id. at Exs. A, B.) The total amount of damages owed by HCPS to the Plaintiffs, therefore, is $33,187.90.
II. Attorneys’ Fees and Costs
Under the IDEA, 20 U.S.C. § 1415(i)(3)(B), the Court “may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.” The Plaintiffs have requested attorneys’ fee awards under this statute for every stage of this case (ie., JP I, JP II, and JP III). (PI. First Pet. at 1-2.) HCPS opposes the requested award of attorneys’ fees for various reasons. (Def. First Obj. at 1, 18; Def. Second Obj. at 1.) Each of HCPS’ contentions will be considered below.
A. Offer of Judgment
The Defendant’s broadest contention is that the Plaintiffs are not entitled to any award for attorneys’ fees incurred after the Defendant made its offer of judgment. (Def. First. Obj. at 18.) Fed.R.Civ.P. 68 provides that a party defending against a claim may, more than 10 days before trial, make an offer of judgment to the claimant; if that offer is not accepted, and “the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” The IDEA itself discusses the applicability of offers of settlement in IDEA claims:
Attorneys’ fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the Act for services performed subsequent to the time of a written offer of settlement to a parent if—
(A) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;
(B) The offer is not accepted within 10 days; and
(C) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.
20 U.S.C. § 1415(i)(3)(D)(i). This provision does not apply, however, “to a parent who is the prevailing party and who was
The IDEA explicitly provides that attorneys’ fees are regarded as “part of the costs.” 20 U.S.C. § 1415(i)(3)(B)(i). This statutory provision is highly significant in light of the Supreme Court’s decision in
Marek v. Chesny,
in which it was held that, when a statute makes attorneys’ fees part of the available relief, whether the Rule 68 offer is more favorable to the plaintiff than the final judgment is to be determined with reference to preoffer costs.
See
It is undisputed that on April 11, 2008, HCPS offered the Plaintiffs $137,697.47 and explicitly invoked both Fed.R.Civ.P. 68 and 20 U.S.C. § 1415(i)(3)(D)(i). (Def. First Obj. at Ex. 2.) This figure was arrived at by combining three elements: the $31,187.90 claimed by the Plaintiffs as actual damages; $3,419.57 in litigation costs; and, $101,097.00 in attorneys’ and paralegals’ fees.
(Id.)
The costs and damages figures were those approved in the Court’s earlier attorneys’ fees opinion.
(Id.)
The attorneys’ fees themselves, however, were substantially ($78,462) lower than those awarded by the Court previously.
(See id.); see also JP,
HCPS makes a curious argument that the relative worth of its offer and the Court’s final judgment should be computed as of December 16, 2008 — the date that the Court found for the Plaintiffs on the merits after remand. (Def. First Obj. at 19.) In the Memorandum Opinion and Orders issued that day, however, the Court indicated that it was not yet able to compute, the appropriate amount of the award, and required further statements of damages, and costs. (See JP III at 76-77; Order, December 16, 2008 (Docket Number 109).) Thus, as of December 16, 2008, the Court had not yet ascertained the amount of damages (which HCPS continues to litigate) or the preoffer costs. Comparison of the amount of the offer to the “relief finally obtained” by the Plaintiffs was, therefore, impossible until, essentially, today, when the amount of that relief was determined. 20 U.S.C. § 1415(i)(3)(D)(i). Because the amount of relief respecting preoffer costs is greater than that offered by HCPS, that offer was not “more favorable” than the award, and 20 U.S.C. § 1415(i)(3)(D)(i) does not limit the Plaintiffs’ fee award.
Even if subsequent computation had shown the offer made by HCPS to be more favorable than the Plaintiffs’ eventual recovery, Plaintiffs’ postoffer fees would still be recoverable because the parents were “substantially justified” in rejecting that offer.
See
20 U.S.C. § 1415(i)(3)(E). While there is a paucity of precedent interpreting the phrase “substantially justified,” most courts addressing the issue have found substantial justification when the Plaintiffs had a good faith, reasonable belief that their eventual recovery would be higher than the offer.
See, e.g., B.L. through Lax v. District of Columbia,
As explained above, when HCPS made its offer, the amount of preoffer attorneys’ fees that the Plaintiffs would recover was still in question. Furthermore, the amount of preoffer attorneys’ fees awarded to the Plaintiffs in the Court’s earlier, vacated, award was substantially higher than that offered by HCPS.
See JP,
B. Prevailing Party
The Plaintiffs also have tendered a claim for attorneys’ fees for their work in JP II, the defense of HCPS’ appeal of this Court’s first decision in their favor. (PL Second Pet. at 1.) The IDEA provides that an award of attorneys’ fees may be granted to a parent making an IDEA claim if that parent is the “prevailing party” in the litigation. 20 U.S.C. § 1415(i)(3)(B)(i)(I).
A party need not prevail on all claims in order to be regarded as the prevailing party because enforceable, material final relief on any IDEA claim is sufficient to make one a prevailing party.
See G ex rel. RG v. Fort Bragg Dependent Schools,
It is true, as HCPS argues, that a party who loses on appeal ceases, at that point, to be a prevailing party.
See Figg v. Schroeder,
The Fourth Circuit has recognized circumstances in which a party who loses during a particular appellate proceeding might still be awarded attorneys’ fees as a prevailing party. For example, in
Plyler v. Evatt,
The Fourth Circuit reached a similar result in
Perry v. Bartlett,
More recently, in
Nigh v. Koons Buick Pontiac GMC, Inc.,
On remand, the district court awarded the plaintiff attorneys’ fees, inter alia, for the services involved in the losing effort before the Supreme Court. Id. at 189. The defendant appealed that award, and the Fourth Circuit took up the issue whether it was “patently unreasonable” to award fees to a party who had lost on the appeal of a particular issue, but who remained the overall prevailing party. Id. at 188.
The case was decided under the Truth-in-Lending Act, but the Fourth Circuit began its analysis by analogizing that statute’s fee-shifting provision to other similar statutory provisions, such as 42
Considering that the two statutes operate in similar contexts, the Fourth Circuit’s analysis of fee shifting provisions in the Truth-in-Lending Act context is useful in applying the fee shifting provisions of IDEA. While the Fourth Circuit recognized the apparent unreasonableness of granting prevailing party attorneys’ fees to a party who lost on appeal, it noted that “[the defendant] knew or should have known that by appealing only the question of damages to the Supreme Court it risked losing more in fees and costs than it stood to gain in refunded damages.” Id. at 189. Therefore, in a very real sense, defendants facing statutes with fee shifting provisions assume the risk of raising attorneys’ fee awards with appeals that do not render a suit unsuccessful. See id. at 188-89.
Assessing whether the Plaintiffs may be awarded attorneys’ fees for their unsuccessful defense on appeal therefore requires addressing two issues. First, was the appeal “related to the ease in chief?” Second, was the defense necessary to preserve the Plaintiffs’ prior victory?
See Perry,
It is not reasonably disputable that the Plaintiffs’ defense of HCPS’ appeal was necessary. HCPS appealed essentially every material issue in the case. If the Plaintiffs had not defended against the appeal, the victory they secured in the district court would have been lost by default.
Further, there can be little doubt that the nexus component of the analysis was satisfied because the appeal covered all aspects of the case. That nexus was not altered by the fact that the Court of Appeals reversed the district court’s judgment on the limited ground that the hearing officer’s decision was not afforded the appropriate degree of deference and that, on that basis alone, the district court judgment was vacated and remanded for further proceedings, there being no judgment on the merits on the appeal. Thus, notwithstanding the fact that the appeal was not decided on the merits of the Plaintiffs’ claim, it simultaneously was certainly not so unrelated “as to justify treating it as a separate lawsuit.”
Perry,
In sum, the Plaintiffs prevailed in the district court originally and again following remand. Considering that, the nexus requirement, and the fact that it was necessary for the Plaintiffs to defend the appeal in order to secure the fruits of their origi
C. Lodestar Analysis
The amount of attorneys’ fees awarded to prevailing IDEA plaintiffs “shall be based
on rates prevailing in the community
in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C) (emphasis added). Pursuant to that direction, and under the basic principles applicable to the award of attorney’s fees in IDEA and civil rights cases generally, the “starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart,
The twelve
Johnson
factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
1. Reasonable Hourly Rate
a. Standard of Review
The IDEA instructs that a reasonable rate is the one “prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C). The Fourth Circuit recently has noted that:
[D]etermination of the hourly rate will generally be the critical inquiry in setting the reasonable fee, and the burden rests with the fee applicant to establish the reasonableness of a requested rate. In addition to the attorney’s own affidavits, the fee applicant must produce satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award. Although the determination of a market rate in the legal profession is inherently problematic, as wide variations in skill and reputation render the usual laws of supply and demand largely inapplicable, the Court has nonetheless emphasized that market rate should guide the fee inquiry.
Robinson v. Equifax Information Services, LLC,
The market rate for similar services in the community may be established “through affidavits reciting the precise fees that counsel with similar qualifications have received in comparable cases; information concerning recent fee awards by courts in comparable cases; and specific evidence of counsel’s actual billing practice or other evidence of the actual rates which counsel can command in the market.”
Spell v. McDaniel,
b. Hourly Rate: Mr. Strother
The record contains affidavits addressed to the prevailing rate in the community for the kind and quality of services furnished, and evidence of the billing practice of Plaintiffs’ counsel, and evidence of a recent fee award.
In this case, the Plaintiffs and then-counsel executed a retainer agreement on July 29, 2005. It set a “reduced rate” of $165 per hour for Mr. Strother, $135 per hour for associates, and $80 per hour for paralegal assistants. The retainer, however, provides that, if the Plaintiffs prevail, the requested fees shall be based on “rates prevailing in the community in which the proceedings arose.” Mr. Strother’s affidavit explains that he extends a reduced rate “in special education matters because of the inability of middle and lower income clients to pay a higher rate.” (Strother Aff. Ex. F, ¶ 10). He also avers that, “based on his experience, without this substantial reduction, the majority of parents would forego attempts to advocate then-rights under IDEA.” (Id.)
Mr. Strother’s affidavit further reports that the prevailing hourly rates in the communities for the kind and quality of the services he furnished range between $350 and $400 per hour for lead counsel and $225 to $290 per hour for associates. (Id. at ¶ 10.) And, his current rate for special educational matters is $250. (Id.) The rate charged by Mr. Strother’s firm for associates’ services .in such matters is $190 per hour. (Id. at ¶ 11.)
Plaintiffs submitted six affidavits, which, considered individually and collectively, attest that, for the kind and quality of service performed by Mr. Strother the prevailing hourly rate is $350 in the Eastern District of Virginia including Richmond.
5
Many of those affiants also had submitted affidavits in 2006 in support of the fee application filed previously. At that time, those affiants also attested, with less specificity, that the then prevailing rate in the community was $350 as well. The affida
However, most of the affidavits also reflect that the $350 hourly rate is the one commanded by lawyers with considerably more experience that Mr. Strother’s. Indeed, three affiants had more than twenty-five years in practice and two had practiced for fourteen and ten years, respectively. Mr. Strother had been in practice six years when he undertook the representation and this was his first IDEA case.
The affidavits also reflect that there are not many lawyers in the area who accept IDEA cases. The affidavits suggest that is attributable to the fact that those in need of such services are able to pay only discounted rates. Nonetheless, the record establishes that the going rate for experienced counsel in IDEA cases in the Eastern District of Virginia, including this division, is $350 per hour.
See, e.g., County School Bd. of York County, Virginia v. A.L.,
HCPS’s first ground of opposition to Mr. Strother’s requested rates of $300 and $350 per hour 6 is that he lacks the experience of the affiants who support the $350 per hour prevailing rate. To be sure, the record shows that this is Mr. Strother’s first IDEA case. The record also establishes that Mr. Strother, who had been in private practice six years when he took on this case, has a fine reputation as a practitioner in special education law. Mr. Strother’s ability was demonstrated in this case. To put it simply, he took over a case after it had started before the State Hearing Officer and effectively built the factual record which allowed the Plaintiffs to prevail here.
The basic legal precepts on which an IDEA case is based are not themselves complex. However, as shown by the record, the factual issues which animate the legal principles are quite complex. In particular, it is necessary for a lawyer to work his way through quite complex and often confusing public educational records and assess the conclusions of public educators in perspective of experts in the education of autistic children. Then all of that must be sorted and presented by effective use of the records, effective cross-examination of witnesses, and mustering an effective presentation of expert witnesses. This case called for the exercise of considerable skill on the part of Mr. Strother, and his experience in handling special education cases in other contexts was apparent in the skillful and effective way in which the factual record here was developed and in which expert evidence in support of JP’s case was assembled and presented.
The reputation, skill and experience of a lawyer are the constituent components of the 9th Johnson factor. HCPS has made no criticism of Mr. Strother’s reputation or skill. Indeed, the record shows that he has a fine reputation in special education law. As discussed above, the record in this case illustrates a substantial level of skill in trying any IDEA case, even though it was his first case of this sort.
Mr. Strother’s experience level is significant here because the record shows that the $350 rate is at the top of the range for such cases for lawyers much more experienced than Mr. Strother. Thus, says HCPS, the experience factor warrants a
That argument ignores the fact that the statute bases the rate on the prevailing community rates for the “kind and quality of services furnished.” It does not explicitly mention the experience of the lawyer. However, experience is rightly equated with skill, and experience is a generally recognized factor in setting lawyers’ rates. Thus, it is appropriate to make a downward adjustment to account for limited experience. However, where as here, the lawyer demonstrated a quite good skill level and prevailed in the case that adjustment should only be a small one. That is especially true considering that “experience” is only one component of the 9th Johnson factor, and thus the lawyer’s lesser experience is a relevant, but not determinative, factor.
Considering all the foregoing and the record as a whole, the Court concludes that a reasonable rate for Mr. Strother’s services is $300 per hour. Notwithstanding that, during the unfortunately protracted course of this case, Mr. Strother has gained valuable experience, there is no basis for establishing a different fee level for services provided in JP II and JP III than in JP I based on the 9th Johnson factor.
The second objection made by HCPS to the requested prevailing hourly rate of $350 for JP II and JP III and even to the requested rate of $300 for JP I also is grounded, so says HCPS, in the 9th Johnson factor. (Def. First Obj. at 7 (citing Transcript of December 6, 2007 Argument at 9-10).) This argument actually is founded upon a Court-counsel exchange during oral argument in the Court of Appeals:
THE COURT: What’s the difference? You make a distinction. A market rate is what an attorney can receive.
MR. ALLEN: Well, not, not from clients that IDEA and other civil rights—
THE COURT: Well, that’s a terribly bad confession on your part, because that’s exactly what the market is. The market is what attorneys doing that type of practice get. And if, if you’re making a truthful observation that many of the plaintiffs are parents who are not wealthy and can’t afford a lot of money and, of course, is a fee transfer in these cases.
{Id. at 7.) From that springboard, HCPS posits that, when IDEA specifies the rate prevailing in the community for the kind and quality of services furnished, the statute actually means the hourly rate that the plaintiffs lawyer, and only the plaintiffs lawyer, charges. {Id. at 7-9.) Interestingly, HCPS never stakes out a position respecting whether it is the rate that Mr. Strother charged the parents ($165 per hour) or the rate he charges in his special education practice ($250 per hour). In any event, piggybacking on a statement made in the Court-counsel exchange, HCPS argues that the market rate in IDEA cases is the rate that IDEA and other civil rights plaintiffs can afford to pay, an argument which, of course, harkens back to the statement: “A market rate is what an attorney can receive.” {Id. at 7-8).
There is no doubt that the fee actually charged is relevant in determining a reasonable hourly rate.
See Robinson,
In fact, if Congress had wanted IDEA attorneys’ fees for prevailing plaintiffs to be the hourly rate normally received by plaintiffs counsel, it could have said precisely that. It did not. Instead, Congress used different words, and courts are obligated to give the words of Congress effect. Congress, of course, was not acting irrationally by choosing the prevailing rate in the community, rather than the rate that the lawyer usually charges. For example, suppose that a plaintiff retains a lawyer to try a case and the lawyer is the preeminent trial lawyer in town and he charges and is paid $600 per hour for the trial work in the IDEA case. Could that lawyer be awarded a fee using that hourly rate when the record showed that the prevailing rate in the community was $350 per hour? Certainly not. What if, on the other hand, that case had been handled pro bono by a lawyer who was independently wealthy and routinely charged clients $100 per hour to cover overhead? Would her fee under IDEA be limited to $100 per hour? Not if the Congressional text is to be given effect.
Rather clearly, by specifying the prevailing rate in the community, Congress looked beyond the rate which the plaintiffs lawyer usually charges and receives. Congress chose that measure to provide incentives to lawyers to take IDEA cases. See 132 Cong. Rec. 16,823 (statement of Sen. Weicker) (“Without this remedy, many of our civil rights would be hollow pronouncements available only to those who could afford to sue for enforcement of their rights.”) Here, the record shows that the prevailing rate in the community is $350 per hour for the lead partner.
However, it is also settled that the other
Johnson
factors must be taken into account in setting the fee, mindful of the fact that Congress did not intend the fee shifting provision to provide a windfall to plaintiffs counsel.
Trimper v. City of Norfolk,
The other Johnson factor most pertinent to ascertaining a reasonable hourly rate is factor 5, the customary fee for such service. The record here shows that the range for fees customarily charged is a low of $150 to a high of $350 per hour, but that fee agreements usually specify that, if the plaintiff prevails, the plaintiffs lawyer will seek attorney’s fees based on the prevailing community rate as provided in the IDEA.
Taken as a whole, and considered in perspective of Johnson factors 5 and 9, the ones that are most pertinent to the reasonableness of an hourly rate, the reasonable rate for Mr. Strother is the $350 prevailing market rate reduced to $300 per hour to account for his lower level of experience in IDEA cases and to reflect recognition that his customary fee for special education cases is $250 per hour.
c. Hourly Rates: Associates
Several associates worked on JP’s case during its long history. The primary associate during
JP I
was Krista Mathis who had been an attorney for only a few years before her involvement with JP’s case, and she had no IDEA experience other than as a summer intern and through attending IEP meetings. (PI. First Pet. at Ex. C. p. 829.) The primary associate during the
JP II
phase of the litigation was Robert J. Allen. Other than
The supporting affidavits submitted by the Plaintiffs show that the prevailing rates for associates in cases such as this ranges between $225 and $290 per hour. (Strother Aff. ¶ 9; Reichhardt Aff. ¶ 5; Butler Aff. ¶ 7.) However, Mr. Butler’s affidavit relates to services provided in litigation other than the IDEA. Without that affidavit, there is no support for an associate rate of $290. The Plaintiffs’ relevant evidence on associates’ rates is the $225 figure proffered by Mr. Reichhardt and the $190 rate charged usually by Mr. Strother’s firm.
HOPS contests the requested $200 and $230 hourly rates charged for associate work. (Def. First Obj. at 8.) As an initial matter, HOPS is correct that the Plaintiffs have provided the Court with no background on associates Robert J. Allen or Anastasia K. Jones, so it is impossible for the Court to assess the rate requested for them in light of their experience. Accordingly, it is not possible to base any part of the award on services which they performed. This results in a reduction of 126.5 associate hours.
The primary associate on this case, Ms. Mathis, had only three years experience as an attorney when this matter first went to trial and, considering Johnson factor 9, an hourly rate of $190 is more appropriate than the requested rate of $230. This is no commentary on her skill or performance with respect to this particular matter, but instead reflects the Court’s experience with billing rates in the Richmond area for young attorneys who have been practicing law for as long as Ms. Mathis. 8 A lesser hourly rate is also appropriate for associate Audrey J. Burges, who began practicing law in 2006, and thus necessarily has limited experience. (PI. Ex. G ¶¶ 2, 3.) Her rate is best set at the $190 rate that the firm usually charges for associates, rather than the higher rate of $230 per hour for more experienced associates.
d. Hourly Rate: Paralegal Assistants
There are no affidavits reflecting the rates charged for paralegal services in IDEA cases in the community. The Plaintiffs fee application recites that the prevailing community rate for such services is $105 per hour, but no supporting documentation is provided to confirm this figure, The rate actually charged the Plaintiffs, as set forth in the Retainer Agreement, was $80 per hour. In the absence of any evidence in the record concerning the prevailing community rate for paralegal fees, the Court will award those fees at the rate actually charged to the Plaintiffs.
In sum, the Court finds that, in light of the relevant Johnson factors and the applicable law, that $300 per hour for Mr. Strother, $190 per hour for Mathis and Burges, and $80 per hour for paralegal services reflects the general community rate, as well as the skill and experience of those professionals while, at the same time, appropriately accounting for their relative inexperience with IDEA actions such as this and the customary rate for each level of service.
Next, it is necessary to review the second half of the lodestar analysis: the number of hours reasonably expended on behalf of the Plaintiffs. Under the IDEA, the Court is obligated to reduce a fee award if “the time spent and legal services furnished were excessive.” 20 U.S.C. § 1415(i)(3)(F)(iii). For that reason, “[t]he Court may not simply accept as reasonable the number of hours reported by counsel,” and the fee applicant bears the burden of providing the Court with sufficient evidence to justify its fee request.
A.D.,
The Plaintiffs request reimbursement for a total of 669.7 hours of partner time (401.8 for JP I, 208.5 for JP II, and 59.4 for JP III), 929 hours of associate time (482.4 for JP I, 283.5 for JP II, and 163.1 for JP III) and 236.9 hours of paralegal time for the combined litigation (48.5 for JP I, 106.5 for JP II, and 81.9 for JP III). (PL First Pet. at 1-4.) HCPS raises several arguments concerning these statements of hours expended; each of these arguments will be dealt with in turn.
The second
Johnson
factor requires that the number of hours expended be reasonable in light of the difficulty and novelty of the legal questions at issue.
See
First, the 156.3 hours of attorney time claimed for preparation of the Complaint are clearly excessive. (PL First Pet. at Ex. C pp. 324-28.) While the Complaint was factually very thorough and obviously required a great deal of time to draft, it also needlessly detailed seven separate counts which ultimately went only to a single question: whether the 2005 IEP complied with the IDEA. While the facts underlying those separate counts were critical to the Plaintiffs’ success on the merits, the unnecessary recitation of the separate counts demonstrates a lack of experience that undoubtedly contributed to the excessive number of hours required to prepare the Complaint. Considering the Complaint, the law applicable to the relief it sought, and the record, the Court will award 50 hours, charged at the partner rate, for preparation of the complaint. This is a reduction of 11.1 partner hours and 89.1 associate hours from the claimed total.
Second, the 60 consecutive hours of dedicated preparation time for oral argument before the Fourth Circuit claimed by Mr. Strother are also excessive. (Pl. Second Pet. at Ex. C.) Beyond question, preparing oral argument before a federal Court of Appeals is surely a daunting task and a most important one that requires a great deal of preparation, 60 consecutive hours of vaguely described “preparation” time for oral argument by an attorney already intimately familiar with the applicable law and factual background is not reasonable. Considering the size of the record, the nature of the legal issues and the nature of the details in the record, preparation reasonably could have been accomplished in three eight-hour days. A total of 24 hours therefore will be allowed as reasonable.
HCPS also objects to “the number of hours spent in duplicative and repetitive
HOPS objects to several other time entries as reflecting activities not properly recoverable because they represent clerical or administrative tasks. (Def. First Obj. at 17; Def. Second Obj. at 9, 10.) This objection folds together with HOPS’ final objection that the time records provided by the Plaintiffs are inappropriately “lumped.” (Def. Second Obj. at 7-8.) The “lumping” cited by the Defendant refers to the practice of listing several tasks under a single time entry, without specifying the amount of time spent on a particular task.
Guidry,
For example, the Plaintiffs request reimbursement for activities such as speaking with local news reporters, “develop[ing]” binders, making copies, faxing forms, and similar activities. (PI. First Pet. at Exs. C, E; PI. Second Pet. at Ex. C.) Many of the Plaintiffs’ time entries reflect several different activities occurring during a single time entry, 10 and many of them combine apparently clerical tasks with tasks requiring attorney judgment. 11 Indeed, in one instance, a time entry includes a request for reimbursement for a conversation with a local newspaper reporter. (PL Second Pet. at Ex. C.) The regularity with which these lumped time entries appear in the Plaintiffs time records makes parsing out particular activities impossible. While the Plaintiffs are correct that keeping accurate time records is a difficult and challenging enterprise, that does not excuse them from the obligations to maintain such records. (See Pl. Second Rep. at 12.)
The lack of specificity in the Plaintiffs time records render it impossible
HCPS further objects to time charged by the Plaintiffs for conversations with what it describes as “experts” or “consultants.” (Def. Second Obj. at 6-7.) It is undisputed that IDEA plaintiffs are not entitled to “recover the costs of experts or consultants.”
Murphy,
There has been no decision interpreting the Murphy holding as it pertains to attorney billable hours for consulting with experts, but the Court need not take up that issue in this case. That is because, as an initial matter, most of the time entries objected to by HCPS do not represent interactions with outside consultants or experts. {See PI. Second Rep. at 10-11.) HCPS has identified as objectionable conversations with other employees of Mr. Strother’s firm {e.g., Mr. Manos), witnesses in the case {e.g., Jennifer Wood), and other similar individuals. (Def. Second Obj. at 6-7.)
Several entries, however, do involve discussions with outside legal consultants (Troutman Sanders and C. Simchick). Almost all of these time entries involve “lumping” of several activities and indecipherably vague time entries. Therefore, any appropriate reduction for conversations with outside consultants would, to a significant degree, overlap with the above-mentioned reductions for lumping and vague time records. Any significant amount of unrecoverable time spent consulting with experts, therefore, will be accounted for in the 10% reduction already imposed for impermissible lumping and vague time records.
The number of hours reasonably expended also must be assessed in light of the relevant Johnson factors. Johnson factor 1 requires assessment of the time and labor reasonably required. The Court, based on familiarity with the case, is satisfied that the number of hours claimed, less the time excluded for the reasons cited above, is reasonable. This was a fact-intensive case and those facts presented some legal complication. And, as explained later, HCPS vigorously defended the ease, thereby contributing to the number of hours spent by the Plaintiffs’ counsel. The time claimed by Plaintiffs’ counsel, as reduced, is quite reasonable given the Court’s own experience with this case.
The second
Johnson
factor requires assessment of the novelty and difficulty of the questions posed by the action. Although the basic components of IDEA law in this case were not novel in and of themselves, the Defendant made several novel
The eighth
Johnson
factor directs the Court to consider the amount in controversy and the results obtained. The Supreme Court has stated that the “degree of success obtained” is “the most critical factor” in determining the reasonableness of the fee award.
Farrar v. Hobby,
In sum, after considering the Defendant’s objections and the Johnson factors relevant to rate and time, the hours claimed by Plaintiffs, when reduced as required herein, are reasonable in amount. When adjusted with the reductions and 10% decrease outlined above, the total number of hours compensated will be 560.34 hours of partner time, 642.06 hours of associate time, and 213.21 hours of paralegal time.
3. The Lodestar
The lodestar figure in this case is derived by multiplying the 560.34 hours devoted by Mr. Strother by $300 per hour, the 642.06 hours spent by the associates by $190 per hour, and the 213.21 hours by paralegal assistants by $80 per hour and adding them. That calculation produces a lodestar figure of $307,150.20 for JP I, JP II and JP III.
4. The Other Johnson Factors
The lodestar figure may be increased or decreased by application of the other
Johnson
factors.
See Robinson,
The fourth Johnson factor, preclusion of other employment is described in Mr. Strother’s affidavit wherein he states that the inability of JP’s parents to pay even the reduced rate “has dramatically curtailed the [quite small] law firm’s ability to take on new clients during the past three years.” (Strother Aff. ¶ 17.) However, the affidavit does not explain how that is the ease. Therefore, the factor cannot be applied in this case.
The fifth
Johnson
factor is the customary fee. In this case, that factor came into play in assessing the reasonableness of the
The sixth Johnson factor is whether the fee is fixed or contingent. The fee here contains both elements. The retainer agreement called for a fixed hourly rate of $165, but also provided for a greater fee if the representation was successful. Further, as the litigation continued, JP’s parents became unable to satisfy the fees called for by the retainer in full and later could not pay at all. Nonetheless, the firm continued the representation. Clearly, that placed a fiscal burden on the firm.
The seventh Johnson factor was at play at the initial stage of the administrative hearing when Mr. Strother took over for another lawyer. Thereafter, this factor was not applicable and there is no way to assess the impact of the early time limitations on the reasonableness of the requested fee.
The eighth Johnson factor is the amount involved and the results obtained. At stake was the cost of educating JP for one year, a total of approximately $33,000. The result obtained was complete success in securing the damages permitted by law. The requested fee is more than ten times the award. However, that must be assessed in perspective of two rather unusual factors.
First, before this case, the parents had been involved in the 2003 Dispute with HCPS and had settled it. As part of the settlement, they secured an agreement from HCPS that the 2004 IEP would contain certain components which had been helpful in educating JP at Spiritos. (See Mem. Op. at 6-7.) However, HCPS did not live up to its obligations. (Id.) Thus, this litigation took on even greater importance.
Second, HCPS mounted an exceedingly aggressive defense, contesting almost every point. As noted in
Saleh,
a litigant may choose to defend a case in this fashion and to pay its counsel for so doing.
See
The 9th Johnson factor has been addressed in assessing HCPS’ arguments respecting a reasonable hourly rate. It need not be further discussed.
The 10th Johnson factor is not present in the traditional way in that the specific case is not an unpopular one. However, the fact that few lawyers are willing to undertake these IDEA cases is documented in this record and that illustrates that IDEA cases as a genre are not desirable ones for lawyers to pursue.
The clients usually cannot afford to pay substantial fees. And, where, as here, the school system fights tooth and nail every step of the way, the lawyer’s resources are tied up for protracted periods of time. Thus, in a very real and practical way, 12 IDEA cases can be considered as encompassed within the 10th Johnson factor, as a reason supporting a substantial fee.
The 11th Johnson factor — the length and nature of the professional relationship — is not involved here.
The 12th factor is awards in similar cases. The record contains reference to an award in a case in this Court’s Norfolk/Newport News Division.
Considering the lodestar calculation in perspective of the other
Johnson
factors, there is no basis for increasing or decreas
Plaintiffs’ counsel accepted, under somewhat difficult circumstances, a representation in mid-course at the administrative level. Because he understood special education law and the jargon of special education, and the ins and outs of the educational system, he was able to present effectively a case that demonstrated quite convincingly how wrong the school board’s decisions had been about the IEP for JP. To do this, he had to piece together detailed data from school records to show that the implementation of the IEP in fact had caused JP’s education to regress rather to progress. He confirmed this evidentiary showing by the use of knowledgeable experts. In sum, the Plaintiffs were afforded a quality representation.
To allow the parents access to the limited resource base that is the segment of the bar which provides representation in IDEA cases, the lawyer charged the parents reduced fees, fees well below the community rate. The firm thereafter carried the clients when, because of the protracted litigation, they could no longer pay even the reduced rates.
In short, Mr. Strother did what Congress expected lawyers to do: give quality professional service to those who could not afford to pay fully for such service; and he prevailed. To do so, he had to overcome fierce opposition from HCPS. To provide an incentive to lawyers to take worthy cases and pursue them to a successful conclusion, even at considerable interim sacrifice, Congress provided for recompense based on the prevailing community rate for the kind and quality of service furnished.
D. The Alleged Windfall
HCPS’ also argues that awarding attorneys’ fees in the amount of $307,150.20 to the Plaintiffs would constitute an impermissible windfall. (Def. First Obj. at 12.) This argument is primarily based on the Fourth Circuit’s decision in
Trimper. Trimper
involved a civil rights claim concerning a leafleting ordinance enacted by the city; upon prevailing, the plaintiff was awarded $100 and costs.
HCPS’ contention is undercut, however, by the Fourth Circuit’s explanation in
Trimper
that a correctly-calculated lodestar fee is “presumed to be fully compensatory without producing a windfall.”
Trimper,
Furthermore, the fees awarded in this case do not reward the Plaintiffs’ counsel for work not done and, in fact, for various reasons discussed above, many billable hours were excluded from the calculation of the award.
See United States v. Holland,
HOPS makes the related argument that an award of this amount might have a negative effect on HOPS itself. (Def. First Mem. at 7.) This argument is based on a comment at oral argument on appeal in which one of the judges said:
But on the other side, we also have School Boards who are strapped for money, that can barely get enough every year from a legislature, from whatever source they can get the money. And if we have every one of the special education students going through and spending a quarter of a million dollars individually on litigation, we’re going to bankrupt the educational system. And I don’t think that was the purpose either as a matter of policy.
(December 6, 2007 Arg. Tr. (hereinafter “Arg. Tr.”) at 9-10.)
The Supreme Court has considered the financial burden placed on school districts by the IDEA.
See Florence County Sch. Dist. v. Carter,
There is no doubt that Congress has imposed a significant financial burden on States and school districts that participate in IDEA. Yet public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is IDEA’S mandate, and school officials who conform to it need not worry about reimbursement claims.
Id.
This is not a case such as
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
wherein the school could reasonably claim that it lacked notice from the statute that it might be required to pay a certain expense based on its violation of the IDEA.
See
Indeed, many courts, including the Fourth Circuit, have recognized that financial burden is not a defense that militates against the substantial awards provided for by the IDEA.
See, e.g., Deal v. Hamilton County Bd. of Educ.,
In sum, it is clear that the Supreme Court has provided a clear answer to HCPS’ contention that the burden placed on it by attorneys’ fees indicates that an award of those fees is inappropriate: school districts assume the risk of substantial-but-reasonable awards when they violate the IDEA.
See Carter,
Finally, it is the office of Congress, not the Courts, to establish policy. The Court certainly is neither unaware of, nor insensitive to, the burden that IDEA places on the resources of school systems. But, the consequence of accepting federal funds under IDEA is compliance with the duties imposed by the statute and the attendant fiscal responsibility for failing to comply, one of which is the payment of fees to a prevailing plaintiff. If Congress should conclude that compensating prevailing plaintiffs by using the statutory mode specified by IDEA presents an undue burden on school systems, then Congress can change the mode for determining attorneys’ fees. The Court cannot.
III. Costs
Under IDEA, 20 U.S.C. § 1415(i)(3)(B), the Plaintiffs also request $8,369.69 for costs associated with this litigation. (PI. First Pet. at I. 13 ) Those costs include photocopying, facsimiles, postage, parking, travel, and service and filing fees. (PL First Pet. at Exs. B, C; Pl. Second Pet. at Exs. A-F.) HCPS raises no objection to these expenses. Therefore, the Plaintiffs will be awarded $8,369.69 for costs associated with this litigation.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Petition for Attorney Fees and Expenses Exclusive of Costs for Education at Dominion School for JP I and JP III (Docket No. 113), the Plaintiffs’ Petition for Attorney Fees and Expenses Associated with United States Court of Appeals for the Fourth Circuit (Docket Number 111), and the Plaintiffs Statement of Costs of Educating JP at the Dominion School during the 2005-2006 School Year (Docket Number 110) are granted and the Plaintiffs will be awarded $33,187.90 in damages, $307,150.20 in attorneys’ fees, and $8,369.69 in litigation expenses for a total judgment in the amount of $348,707.79.
It is so ORDERED.
Notes
. The delay between the sessions resulted because the parents changed counsel after the July 25 session.
. In this phase of the case, the parties have not contested in their briefs the issue of the appropriate interest rate, presumably because the Court considered the issue in its first attorneys’ fees opinion. In that opinion, the Court found that a 6% interest rate was appropriate, both because HCPS agreed to that rate and because "the rates requested by the Plaintiffs [the 13.25% and 25% interest rates on their credit card charges] would unfairly saddle the Defendant with costs that cannot be attributed exclusively to the Defendant’s failure to abide by the IDEA.”
JP,
. This unwarranted objection is a good example of how the contentious approach to this litigation taken by HCPS has increased the cost of the litigation. Of course, HCPS is free to take a contentious approach to defending the case, but it must be prepared to pay to the cost of so doing.
See Saleh v. Moore,
. The Truth-in-Lending Act provides, in relevant part, that:
[A]ny creditor who fails to comply with any requirement imposed under this part ... with respect to any person is liable to such person in an amount equal to ... in the case of any successful action to enforce the foregoing liability ... the costs of the action, together with a reasonable attorney's fee as determined by the court.
15U.S.C. § 1640(a)(3).
. HCPS submitted no affidavits addressing hourly rates. However, in opposing the previous fee award, HCPS tendered two affidavits, one which asserted that the prevailing rate was between $250 and $350 per hour; one which posited a rate of $180 to $240 per hour. The first affidavit offered supports the Plaintiffs’ evidence. The second was based on the affiant’s own rates in representing school boards which, of course, is a somewhat different market than the one in which lawyers who represent plaintiffs function, and the Plaintiffs' proofs represent that segment of the market which, of course, is the one here at issue.
. Mr. Strother seeks $300 per hour for services in JP I and $350 per hour in JP II and JPIII.
. HCPS notes (but it makes no substantive point about) the fact that one of the affiants does not live in the Richmond Division of the Court. However, lawyers from each division, the Richmond Division and the Norfolk/Newport News and the Alexandria Divisions routinely practice in the other divisions and the record shows that the prevailing rate for IDEA cases is essentially the same in each division.
. In the previous fee opinion, her compensable rate was set at $200 per hour. Upon further reflection the proper rate ought to be $190 in view of her relative inexperience.
.HCPS objects to the inclusion in the award of any compensation for the hours spent by Mr. Farley because the Plaintiffs have not provided information as to his background. (Def. First Obj. at 15.) As is explained in the Plaintiffs' briefing, Messrs. Farley and Ma-nos were student law clerks employed by the firm who worked on this litigation and were billed at the paralegal rate. (PL First Rep. at 5 n. 5.) He is, therefore, not a "consultant” under the meaning of the decision in
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
. For example, the following time entry reflects activities taken during 0.60 hours on June 12, 2008: “Convo with Ms. Hooper re courtesy copies and paper Filings; email to PCS and AJB; convo with Ms. Chou re consistent format pleasing and courtesy copies; Email to AJB/PCS.” (Pl. First Pet. at Ex. E.)
. For example, the following time entry reflects activities taken during 1.20 hours on July 25, 2008: "Develop pleadings and order binder; hand file Objection to Hanover’s second submission; convo with L. Peterson deny for extra pages and second submission.” (Id.)
. This case illustrates how a lawyer's time can be ensnared in a protracted case and go uncompensated for years.
. The Plaintiffs have not renewed their requests for expert costs that were litigated in the first trial on this issue.