Childs v. Dale County Board of Education
MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1. Plaintiffs' motion for attorneys' fees (Doc. # 69 ) is GRANTED. 2. Plaintiffs are awarded $103,965 in attorneys' fees and $874.69 in costs. 3. Defendant's Motion for Leave to File a Surreply (Doc. # 76 ) is DENIED. Signed by Chief Judge William Keith Watkins on 1/6/2016. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
J.S.R., a minor, by his Mother,
Susan Tarter Childs, as his Next
Friend, and SUSAN TARTER
DALE COUNTY BOARD
CASE NO. 1:13-CV-582-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ motion for attorneys’ fees. (Doc. # 69.)
Defendant filed a response (Doc. # 70), and Plaintiffs filed a reply (Doc. # 75).
Upon consideration of the parties’ arguments, the evidence, the administrative
record, and the relevant law, the motion is due to be granted.
awarded fees in the amount of $103,965 and costs in the amount of $874.69.
I. JURISDICTION AND VENUE
Because Plaintiffs are prevailing parties under the Individuals with
Disabilities Education Act (“IDEA”), they are eligible to receive attorneys’ fees.
The court exercises jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. §
1415(i)(3). The parties do not contest venue or personal jurisdiction.
II. LEGAL STANDARD
The district court may, in its discretion, award attorneys’ fees to a prevailing
party in an IDEA proceeding. 20 U.S.C. § 1415(i)(3). That discretion is not
completely unfettered. The statute provides that any fees awarded thereunder must
be based on the prevailing rates in the community where the action arose. Id. It
further provides that fees may not be awarded for services performed subsequent to
the time of a written offer of settlement if, among other things, the court finds that
the relief actually obtained is not more favorable than the offer of settlement. Id.
Fees may be awarded for services subsequent to the offer of settlement, however,
where the parent was justified in rejecting the settlement offer. Id. Finally, the
statute provides for certain bases on which reductions may be made to the amount
of fees awarded. Id.
To determine the appropriate award amount, the court begins by multiplying
a reasonable hourly rate by the number of hours reasonably expended. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983).1 This approach, known as the lodestar
method, results in an amount that presumptively reflects all the factors the court
should consider in making a determination of reasonableness. Norman v. Hous.
Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Johnson v. Ga.
The legislative history accompanying the IDEA attorneys’ fee provision indicates that it
is to be interpreted in a manner consistent with the framework set forth in Hensley. See H.R.
Rep. No. 105-95, at 105 (“[T]he Committee believes the amount of any award of attorneys’ fees
to a prevailing party under part B shall be determined in accordance with the law established by
the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) and its progeny.”).
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), in which the old Fifth Circuit
articulated the twelve reasonableness factors). The moving party bears the burden
of establishing the appropriate hourly rates and compensable hours with sufficient
evidence. Norman, 336 F.2d at 1303.
Under the attorneys’ fee provision of the IDEA, the hourly rate must be
based on prevailing rates in the community in which the action arose. 20 U.S.C. §
1415(i)(3). The starting point for determining a reasonable hourly rate is the
regular rate at which the attorney bills her clients.
See Dillard v. City of
Greensboro, 213 F.3d 1347, 1354 (11th Cir. 2000) (noting that what the attorney
charges clients is “powerful, and perhaps the best” evidence of the market rate);
Knight v. Alabama, 824 F. Supp. 1022, 1028 (N.D. Ala. 1993).
Also to be
considered are the rates charged in cases of similar complexity and requiring
similar levels of skill. Norman, 836 F.2d at 1300. The experience, skill, and
reputation of the attorneys are also relevant. Knight, 824 F. Supp. at 1028. The
court itself is an expert in the matter of hourly rates, and thus may draw upon its
own knowledge and experience. Loranger v. Stierheim, 10 F.3d 776, 781 (11th
To ascertain the number of compensable hours, the court must determine
which hours were necessary to secure the result obtained from the proceedings.
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546,
561 (1986). To that end, any hours that are “excessive, redundant, or otherwise
unnecessary” must be excluded. Hensley, 461 U.S. at 434. If any of the hours
expended are attributable to discrete and unsuccessful claims, they should be
excluded as well. Norman, 836 F.2d at 1302.
After determining the lodestar fee, the court must determine whether the fee
should be adjusted upward or downward.
Under the IDEA, no “bonus or
multiplier” may be assessed in calculating the total fee award.
20 U.S.C. §
1415(i)(3)(C). Whether the fee award should be adjusted is to be determined based
on the factors laid out in Johnson, 488 F.2d at 717–19. The lodestar amount,
however, is presumed to account for the relevant factors. Delaware Valley, 478
U.S. at 566. There is a strong presumption that the lodestar amount constitutes a
reasonable award, and it should only be adjusted in rare cases. Id.
The circumstances surrounding this case were addressed at length in a
previous opinion. (See Doc. # 64.) A brief recitation of the facts and procedural
history is appropriate for the purposes of this attorneys’ fees motion.
J.S.R. has been enrolled in Dale County Schools since he was in the first
grade. When J.S.R. was in the seventh grade, his mother, Susan Childs (“Childs”),
took him for a neuropsychological evaluation.
Dr. Passler (“Passler”), the
neuropsychologist, determined that J.S.R. has a learning disability. Childs filed a
due process complaint with the Alabama Department of Education.
officer Steve P. Morton (“Morton”) conducted a thorough hearing on the due
process complaint. Ultimately, he determined the Dale County Board of Education
denied J.S.R. a free appropriate public education as prescribed under the IDEA.
See 42 U.S.C. § 1400, et seq. Morton ordered substantial relief for J.S.R.
Plaintiff brought the instant action to recover legal fees and costs incurred
during the administrative proceedings and to resolve claims not within the
jurisdiction of the hearing officer. Defendant Dale County Board of Education
filed a motion for summary judgment, which was granted in part and denied in
part. (See Doc. # 65-1.) Relevant to this motion is the court’s finding that
Plaintiffs are prevailing parties within the meaning of the IDEA’s attorneys’ fee
provision. (Doc. # 65-1, at 23.) See 20 U.S.C. § 1415(i)(3).
Plaintiffs now petition for attorneys’ fees totaling $113,597.50. This figure
is derived from the hours expended and the proposed rates for two attorneys:
Bobbie S. Crook (“Crook”), and Michael P. Lasseter (“Lasseter”). Plaintiffs also
seek to recover expenses in the amount of $874.69.
It has already been determined that Plaintiffs are prevailing parties under the
IDEA. (Doc. # 65-1, at 23.) Accordingly, they are eligible to receive attorneys’
fees. 20 U.S.C. § 1415(i)(3). It must now be determined whether they are entitled
to the full amount requested. First, the reasonable hourly rate applicable to this
case will be established. Second, the reasonable number of compensable hours
will be determined. Third, potential reductions in the lodestar amount will be
considered. Finally, a reasonable amount of expenses will be awarded.
Reasonable Hourly Rate
In their motion, Plaintiffs request that they be awarded fees at the rate of
$275 per hour for Crook and $200 per hour for Lasseter. The relevant community
will first be determined. In light of the Johnson factors applied to all the relevant
circumstances, the reasonable rates at which Plaintiffs’ attorneys should be
compensated are as follows: $250 per hour for Crook and $200 per hour for
The Relevant Legal Community
The parties agree that the relevant legal community for this case is Dothan,
Alabama. (Doc. # 69, at 9; Doc. # 70, at 9.) Though Dothan is located in a county
adjoining Dale County, Crook represents that it is difficult to determine prevailing
rates in Dale County because there are no attorneys who regularly litigate these
types of cases in the Ozark area. (Doc. # 69, at 10.) Plaintiffs filed this case in the
Southern Division, the situs of which is Dothan. Accordingly, the reasonable rate
will be determined based on fees customarily charged in the Middle District of
Alabama and, more specifically, in the community of Dothan, Alabama. See
Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994).
Consideration of the Johnson Factors
The reasonableness of the overall fee ultimately depends on the
consideration of the twelve factors set out in Johnson. 488 F.2d at 717–19. The
factors include (1) the time and labor required, (2) the novelty and difficulty of the
questions, (3) the skill requisite to perform the legal service properly, (4) the
preclusion of other employment due to acceptance of the case, (5) the customary
fee, (6) whether the fee is fixed or contingent, (7) 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. Id.
conclusive, see Delaware Valley, 478 U.S. at 564–66, they are sufficient to resolve
Factors One through Four
The first four factors will be addressed together. These include the time and
labor required, the novelty and difficulty of the questions, the requisite skill to
perform the legal service properly, and the preclusion of other employment. In
support of their motion, Plaintiffs submit the affidavits of Deborah Mattison
(“Mattison”) (Doc. # 69-2) and James Sears (“Sears”) (Doc. # 69-3).
Mattison and Sears are Alabama attorneys who specialize in special education
litigation. As these affiants noted, cases such as this one require some specialized
knowledge of special education litigation. (Docs. # 69-2 and 69-3.) See Doucet ex
rel. Doucet v. Chilton Cty. Bd. of Educ., 65 F. Supp. 2d 1249, 1261 (M.D. Ala.
1999). The hearing officer agreed to resolve three robust issues, each involving a
review of J.S.R.’s educational record and the interpretation of federal law.
(Admin. Decision, Doc. # 27-1.) The hearing officer based his decision on six
days of testimony from thirteen witnesses. (Admin. Decision, Doc. # 27-1, at 4.)
The parties submitted seventy-two exhibits. (Admin. Decision, Doc. # 27-1, at 4.)
The attorney representing a child in an IDEA proceeding must understand
the child’s disability and the child’s rights under the statute. (Mattison Aff., Doc. #
69-2, at 4.) Counsel for the child must also understand how to navigate the
IDEA’s idiosyncratic due process procedures. (Mattison Aff., Doc. # 69-2, at 4.)
Plaintiffs’ counsel in this case represents that the demands of this case precluded
acceptance of any other employment. (Doc. # 69, at 17.)
Factors Five and Twelve
Factors five and twelve will be addressed together. These are the customary
fee and awards in similar cases. The hourly amount Crook and Lasseter normally
charge their clients provides a starting point for determining a reasonable rate. See
Dillard, 213 F.3d at 1354. Crook represented that she regularly bills her clients at
the rate of $275 per hour. She also represented that she “would have raised her
hourly rate to be more in line with other attorneys with [her] experience and
expertise in litigating education cases, had [she] not decided to retire.” (Doc. # 69,
at 10.) Lasseter normally charges between $200 and $300, depending on the
nature of the case. (Doc. # 69, at 10.) Because he lacks experience in education
litigation, Lasseter suggests billing at the lower end of his range for this case.
(Doc. # 69, at 11.) These regular rates provide a starting point, but they do not
resolve the issue.
Mattison avers that the requested rates are reasonable in light of the nature of
this case, but she does not state whether this rate was aligned with those normally
charged in the Dothan area. (Mattison Aff., Doc. # 69-2, at 5.) Sears does state
that these rates were not excessive compared to the rates charged by other civil
rights attorneys in the “legal community.” (Sears Aff., Doc. # 69-3, at 2.) He
states that he charges $350 per hour, but he does not indicate whether he practices
in the Dothan area. (Doc. # 69-3, at 2.) Both Mattison and Sears speak to the skill
required in complex IDEA cases, so their testimony is not entirely unsatisfactory.
But because neither affidavit addresses the reasonable rates charged by attorneys
working in the Dothan area, this evidence does little to guide the court in
determining the reasonable hourly rate.
See Norman, 836 F.3d at 1299
(“[S]atisfactory evidence necessarily must speak to rates actually billed and paid in
To show that the proposed rates fall within the range of rates normally
charged in the relevant community, Crook submits evidence of fees awarded in
other civil rights cases throughout the state. She first refers to Knight, a 1993 case
in which the Northern District of Alabama made findings as to the general market
rates for attorneys in the Birmingham area. 824 F. Supp. at 1032. Crook includes
the following purported quotation from that case: “The general market rates for
attorneys with over 20 years of experience practicing federal complex litigation in
Birmingham is from approximately $300.00 to $475.00 per hour, with the great
majority of rates from $350 to $375 per hour.” (Doc. # 69, at 9.) These are not the
figures that actually appear in the text of that case. The Knight court found the
range to be from “$150.00 to $300.00 per hour, with the great majority of rates
from $150.00 to $225.00.” 824 F. Supp. at 1032. Regardless of what the court
actually found in Knight, the range of rates charged in the Birmingham area in
1993 is not particularly helpful in this case. Crook also cites cases establishing the
ranges of rates in other areas throughout the state, but not in Dothan. The range of
rates in other areas throughout the district informs the ultimate determination as to
the reasonable rate for this case.
In response to Crook’s arguments, Defendant suggests rates of $200 per
hour for Crook and $150 per hour for Lasseter. These rates derive from Copely v.
Superior Logistics Alternative, Inc., in which Crook served as counsel in an
employment discrimination action under Title VII. No. 10-cv-0009, 2011 WL
1165476 (M.D. Ala. Mar. 30, 2011). In Copely, however, the plaintiffs obtained a
default judgment, minimizing the complexity of the work required in the case. Id.
at *1. The rates charged in the Dothan area may have changed in the more than
four years since that case was resolved. Though Copely sheds some light on the
prevailing rates in Dothan, it does not establish the range of rates that the current
Dothan market will support.
In conjunction with their reply, Plaintiffs also submitted the affidavit of
Dusty Harrell (“Harrell”). (Doc. # 75-1.) Harrell has practiced law in the Dothan
area since 1999, and he worked closely with Crook as a paralegal before his
admission to the bar. He is of the opinion that Lasster’s fee of $200 per hour is a
reasonable rate for an attorney of his skill and experience practicing in the Dothan
area. Harrell also avers that the reasonable rate for an attorney of Crook’s skill and
experience practicing in the Dothan area ranges from $275 to $350, if not more.
Matthew C. Lamere, who also has extensive experience practicing in the Dothan
area, avers that attorneys in this area with Crook’s credentials regularly charge
$300 to $350 per hour. (Lamere Aff., Doc. # 75-2, at 3.) He also states that
attorneys in the area with Lasseter’s experience regularly charge between $200 and
$300 per hour. (Lamere Aff., Doc. # 75-2, at 3.)
Whether the Fee is Fixed or Contingent
Plaintiffs’ counsel represents that a contingent fee arrangement was
necessary in this case. (Doc. # 69, at 11.) Counsel covered expenses, knowing
that reimbursement might not be possible. (Doc. # 69, at 11.) Counsel further
represents that the delay in payment resulting from these contingent cases, almost
two and a half years here,2 presents a hardship for the attorneys who take them.
(Doc. # 69, at 15.) The hourly rate should account for the risks and difficulties
arising from the circumstances.
The parties have not presented evidence indicating that time limitations
imposed by the client or the circumstances is a relevant consideration in this case.
The Amount Involved and the Results Obtained
As prevailing parties in the IDEA proceeding, Plaintiffs received substantial
relief. The hearing officer determined that Defendants should reimburse Plaintiffs
for the cost of neuropsychological testing, and that Defendants should cover the
cost of remedial educational services and counseling for J.S.R. (Admin. Decision,
This action commenced in August of 2013. (Doc. # 1.) Plaintiffs filed the initial
administrative due process complaint, however, in October of 2012.
Doc. # 27-1, at 51–52.) In Mattison’s opinion, this was an “excellent” result.
(Mattison Aff., Doc. # 69-2, at 5.)
In response, Defendant argues that Plaintiffs’ counsel garnered only limited
success for their clients. It is true that Plaintiffs did not receive all the relief they
requested. (See Doc. # 70, at 19.) But Plaintiffs should not be penalized for fully
exhausting administrative remedies in contemplation of potential judicial review.
(See Doc. # 75, at 18.) To the extent that time should be excluded for unsuccessful
matters, those issues will be addressed in Part IV.B, infra.
The Experience, Reputation, and Ability of the Attorneys
In support of the requested award, Crook documents her experience
litigating cases like the one at bar. She has been practicing law for twenty-eight
years. She has been engaged in civil rights litigation for approximately twentythree years, and now makes that area the primary focus of her practice. (Doc. # 69,
at 18.) She represents that she is the only attorney in the Dothan area who
regularly advocates on behalf of children and their parents in IDEA disputes.
(Doc. # 69, at 18.)
She also has written and spoken to parent groups and
educational professionals on issues in education law. (Doc. # 69, at 18.) Crook
generally bills civil litigation clients at the rate of $275 per hour. (Doc. # 69, at
Lasseter, in comparison, has been practicing law for a shorter period. He
obtained his license in 2008, and thus has more than seven years of experience.
(Doc. # 69, at 19–20.)
He has not been extensively engaged in civil rights
litigation. (Doc. # 69, at 20.) He submits a rate at the low end of his normal
hourly range to account for his limited experience in this area of the law. (Doc. #
The Undesirability of the Case
At least two features of civil rights litigation contribute to its undesirable
station in the minds of legal practitioners. First, plaintiffs in these cases tend to be
financially unable to cover the costs of the litigation. Counsel for the plaintiff,
usually operating on a contingency fee basis, runs the risk of recovering nothing in
the event of an unfavorable result in the case. Second, when counsel does recover
a fee in the case, payment is delayed as issues of attorneys’ fees are resolved. The
undesirable nature of these cases should be reflected in the attorneys’ fee award.
The Nature and Length of the Professional Relationship
with the Client
Crook and Lasseter represent that their relationship with Plaintiffs is limited
to their representation in this case.
There is no indication whether counsel
anticipates any future professional engagements from these clients.
Determination as to the Reasonable Hourly Rate
Upon consideration of all the relevant factors, and based upon the
experience of the court in these matters, the reasonable rates at which counsel are
to be compensated are as follows: Crook is to be compensated at the rate of $250
per hour; Lasseter is to be compensated at the rate of $200 per hour.
Reasonable Number of Compensable Hours
The second component of the lodestar calculus is the number of
Plaintiffs’ attorneys submit that they are entitled to
compensation for a total of 432.5 hours. 361.3 of these are attributed to Crook, and
71.2 are attributed to Lasseter. The relevant issues will be considered in the
following order: the role of Defendant’s offer of judgment; redundancies in the
submitted hours; vagueness in Plaintiffs’ time entries; clerical work; and limited
Offer of Judgment
A parent’s unjustified rejection of an offer of settlement may truncate the
number of compensable hours.
Under the IDEA, the prevailing party is not
entitled to attorneys’ fees for services performed after a written offer of settlement
where (1) the offer was made more than ten days before the administrative
proceeding begins, (2) the offer is not accepted within ten days, and (3) the court or
the hearing officer determines that the relief ultimately obtained by the parent is
not more favorable than the relief offered. 20 U.S.C. § 1415(i)(3)(D)(i). Where
the parent was “substantially justified” in rejecting the offer of settlement,
however, she is entitled to fees for services performed thereafter. 20 U.S.C. §
On December 27, 2012, Defendant made a written offer of settlement to
Plaintiffs. (Offer of Judgment, Doc. # 70-3.)3 Crook responded the same day with
an email rejecting the offer. (Email, Doc. # 70-4.) Because the administrative
hearing began on January 10, 2013, Defendant made the offer more than ten days
before the beginning of the hearing as prescribed in 20 U.S.C. § 1415(i)(3)(D)(i).
Plaintiffs’ rejection of the offer, however, does not affect the number of
Plaintiffs were justified in rejecting Defendant’s offer of judgment.4 The
offer provided that Defendant would evaluate J.S.R. to determine whether he
qualified for special education services. (Offer of Judgment, Doc. # 70-3, at 2.) At
In its motion to strike (Doc. # 78), Defendant contends that portions of the evidence on
which Plaintiff relies are inadmissible under Rules 408 and 403 of the Federal Rules of
Evidence. Specifically, Defendant moves to strike evidence pertaining to previous settlement
offers in this case, correspondence regarding settlement offers in this case, and settlements in
Rule 408 only prohibits consideration of evidence of settlement negotiations where it is
offered “either to prove or disprove the validity or amount of a disputed claim or to impeach by a
prior inconsistent statement or a contradiction.” Fed. R. Evid. 408(a). Only evidence that
comports with the Federal Rules of Evidence will be considered. (See Doc. # 80.)
Plaintiffs offer several justifications for rejecting the offer of judgment. (Doc. # 75, at
9–12.) The sole fact that Defendant did not offer outright to provide special education services
suffices to render Plaintiffs’ rejection reasonable. Whether the remaining justifications are
sufficient will not be decided.
the time Defendant made this offer of judgment, Childs already had made repeated
requests for evaluation to no avail. (Admin. Decision, Doc. # 27-1, at 42 (“[T]he
parent’s request[s] were more or less ignored, leaving her to take action on her
own.”).) Passler concluded that J.S.R. in fact did have a learning disability, and as
a result J.S.R. was entitled to special education services. (See Passler Report, Doc.
# 35-1.) An offer merely indicating Defendant would evaluate J.S.R. to determine
whether he was entitled to services was not an offer that a parent in Child’s
position would be expected to accept.
She had reason to believe, based on
Passler’s report, that J.S.R. assuredly was entitled to special education services.
Ultimately, the hearing officer determined, based on Passler’s findings, that J.S.R.
would have been entitled to special education services as of November 29, 2011.
(Admin. Decision, Doc. # 35, at 35.) For this reason, the relief obtained at the
administrative proceeding was more favorable than the relief Defendant offered.
Plaintiffs were justified in rejecting the offer of judgment. Because they
were so justified, 20 U.S.C. § 1415(i)(3)(D)(i) does not preclude their recovery of
attorneys’ fees for services rendered after Defendant made the offer. 20 U.S.C. §
Excessive, Redundant, or Unnecessary Hours
Defendant argues that Plaintiffs’ time submissions include hours that are
excessive, redundant, or unnecessary. (Doc. # 70, at 26.) If the fee application
includes hours that do not reflect sound “billing judgment,” the court must ensure
that they are not included in the award. ACLU of Ga. v. Barnes, 168 F.3d 423, 428
(11th Cir. 1999). The party opposing the fee application, however, bears the
burden of making “reasonably precise” objections, offering proof to support them.
First, Defendant contends that the hours Crook spent drafting pleadings and
motions are excessive.
The due process complaint, court complaint, and fee
petition, Defendant argues, are “strikingly similar” to filings Crook has made in
connection with other cases. (Doc. # 70, at 30.) Defendant relies on C.W. v. Bd. of
Educ. of Chicago, a case in which the Northern District of Illinois reduced the
number of compensable hours attributed to drafting a complaint. No. 11-CV-2349,
2012 WL 355360, at *10 (N.D. Ill. Feb. 1, 2012). Though the court noted that the
complaint in that case was similar to ones previously filed by one of the attorneys
involved, it also based its reasoning on the fact that three attorneys billed their time
for drafting the complaint. Id. The court reduced the hours from approximately
twenty-five to approximately twelve, finding the latter number of hours to be
Here, Crook only attributed 10.6 hours to drafting the due process
complaint. (Doc. # 69, at 4.) She only submitted 6.4 hours relating to the drafting
of the fee petition. The time that Crook attributed to drafting complaints and
motions is not excessive, even in light of the similarities Defendant highlighted.
No reductions will be made on this basis.
Second, Defendant alleges that Plaintiffs’ attorneys spent an “exorbitant”
amount of time reviewing records and documents, meeting with clients, preparing
for the due process hearing, reading and reviewing transcripts, preparing the
witness lest, reviewing the offer of settlement, and responding to the offer. (Doc. #
70, at 31.) It is clear that the due process proceeding involved voluminous exhibits
and a substantial number of witnesses. (Admin. Decision, Doc. # 27-1, at 4.)
Aside from Defendant’s bare contention that these hours are excessive, there is no
proof supporting a reduction on this basis. Barnes, 168 F.3d at 428.
Third, Defendant launches pointed attacks regarding specific time entries
related to emails, phone calls, and document review. (See Doc. # 70, at 32–33.)
For each of these attacks, Crook either adequately explains the time billed or
concedes that the time should not be counted. Specifically, Crook adequately
supports one hour billed for time spent reviewing the expert evaluation (Doc. # 75,
at 25), approximately three hours billed for reviewing emails with exhibits attached
(Doc. # 75, at 26), and two tenths of an hour billed for emails on January 1, 2013
(Doc. # 75, at 26). Crook concedes that two tenths of an hour billed for efforts to
call Childs and three tenths of an hour billed for emails to counsel for Defendant
may be excluded. (Doc. # 75, at 26.) Thus, one half hour will be deducted from
the number of requested compensable hours for Crook.
Fourth, Defendant challenges the inclusion of identical entries in Plaintiffs’
time logs. Defendant points specifically to entries dated February 5, 2013.5 The
description for one entry, counting one tenth of an hour, reads “Email from Resp. –
2/13 no longer available.” (Doc. # 69-1, at 14.) The description for the other
entry, also counting one tenth of an hour, reads “Email from Resp. – date no longer
These descriptions are similar, though not identical as Defendant
suggests. It is conceivable that Plaintiffs’ attorney had to send more than one
email regarding an unavailable hearing date. No reductions will be made for these
allegedly duplicative entries.
Defendant also contends that Plaintiffs included duplicative entries
regarding review of the “final order.” One entry is dated June 18, 2013, and it
accounts for four tenths of an hour. The other is dated June 19, 2013, and it
accounts for seven tenths of an hour. The final order in question, the hearing
officer’s decision, spanned fifty-two pages. There is nothing excessive about
counsel’s taking one and one tenth hours to review such a lengthy document.
Crook explained that she initially reviewed the document on June 18, 2013. She
Defendant mistakenly listed these entries as dated February 15, 2013.
reviewed it again on June 19, 2013, after consulting with her client. No reduction
will be made for these allegedly duplicative entries.
The final allegedly duplicative entries are dated January 11, 2013. One
entry amounts to seven and two tenths hours, and the other amounts to two and
seven tenths hours. Both entries include the description “Hearing (day 2).” Crook
explained that the longer entry corresponded to time actually spent in the due
process hearing. The shorter entry should have been attributed to time spent
meeting with the client on that same day, both during lunch and after the hearing.
It is clear that these entries are not excessive or duplicative, and no reduction will
be made on that basis.
Fifth, Defendant argues that the compensable hours are due to be reduced
because of the duplicative work of two attorneys. Defendant’s objection in this
respect consists of a list of allegedly duplicative time entries, a string citation to
non-binding cases on the issue, and a general allegation that the work of one
attorney would have sufficed. (Doc. # 70, 35–40.) There is nothing unreasonable
about the collaborative nature of the attorneys’ work in this case. The hearing
spanned six non-consecutive days and involved voluminous exhibits.
representation of two attorneys was necessary to ensure effective counsel under
such complex circumstances. No reduction will be made on this basis.
In a tepid effort to reduce the overall award, Defendant suggests that
Plaintiffs’ time entries are unduly vague. True, a fee applicant must set out time
entries with sufficient particularity.
Norman, 836 F.2d at 1303.
requirement should not be interpreted so as to require an applicant to list the
particular document she is reviewing each time she works with the record to
prepare a pleading.
As the hearing officer’s decision indicated, the parties
submitted seventy-two documents in conjunction with the due process hearing.
(Admin. Decision, Doc. # 27-1, at 4.) Plaintiffs’ attorneys submitted time entries
sufficient to allow a proper assessment of the reasonableness of requested fee.
Accordingly, no reduction will be made for vagueness.
Defendant argues that a portion of Plaintiffs’ time entries represents clerical
work for which they should not be compensated at an attorney’s rate. The majority
of the entries Defendant disputes as clerical are for work that in fact requires an
attorney’s training and skill.
For example, Defendant argues that time spent
researching legal issues and drafting a brief should be excluded as clerical. These
contentions beggar belief.
After a thorough review of the disputed entries, it appears that three and
eight tenths hours of Crook’s time are attributable to clerical work. The fact that
these hours are for clerical work does not result in their being excluded from the
award. Rather, they are not to be compensated at an attorneys’ rate. Instead of
determining the applicable rate for these clerical hours, one half of the time will be
deducted. See Weatherly v. Ala. State Univ., 2:10CV192, 2013 WL 6145315, at
*10 (M.D. Ala. Nov. 21, 2013).
Plaintiffs’ award will not be reduced based on limited success. It is true, as
Defendant argues, that Plaintiffs did not attain all the relief requested in the due
process complaint. But this fact alone does not justify a reduction.
Counsel for Plaintiffs exercised sound judgment by raising all potential
claims in the due process complaint. Failure to raise all claims may have resulted
in preclusion of relief in subsequent judicial proceedings. (See Doc. # 75, at 18.)
And where the unsuccessful matters are based on the same underlying facts and
theories as the successful claims, the award should not be reduced to account for
the unsuccessful claims. It is only where the unsuccessful claims are “distinct in
all respects” from the successful claims that the court should effect a reduction for
limited success. Hensley, 461 U.S. at 440.
All of the claims Plaintiffs asserted in this matter arose from the same
nucleus of facts. Because the unsuccessful matters were not distinct in all respects
from the successful matters, they do not warrant a reduction.
Based on the foregoing analysis, Plaintiffs are entitled to $103,965 in
Crook is to be compensated at a rate of $250 per hour.
Accounting for two and four tenths hours in reductions, she is to be compensated
for 358.9 hours. Accordingly, she is entitled to $89,725 in fees. Lasseter is to be
compensated at a rate of $200 per hour. He is to be compensated for 71.2 hours.
Accordingly, he is entitled to $14,240 in fees.
No Departures from the Lodestar Amount
The lodestar amount will not be adjusted. The IDEA does not allow for
application of bonuses based on success. 20 U.S.C. § 1415(i)(3)(C). The lodestar
amount is presumed to reflect a reasonable amount based on all of the relevant
Delaware Valley, 478 U.S. at 566.
There are no reasons
justifying a downward adjustment from the lodestar amount.
Crook and Lasseter are entitled to $874.69 in expenses. The record reflects
that the costs taxed for travel, copies, and postage are reasonable. See Dowdell v.
City of Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983).
Accordingly, it is ORDERED as follows:
Plaintiffs’ motion for attorneys’ fees (Doc. # 69) is GRANTED.
Plaintiffs are awarded $103,965 in attorneys’ fees and $874.69 in
Defendant’s Motion for Leave to File a Surreply (Doc. # 76) is
DONE this 6th day of January, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
“A request for attorneys’ fees should not result in a second major litigation.” Hensley,
461 U.S. at 437.
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