Tamalpais Union High School District v. W.

Filing 72

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART 63 MOTION FOR ATTORNEYS FEES. (ndrS, COURT STAFF) (Filed on 3/25/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

TAMALPAIS UNION HIGH SCHOOL
DISTRICT,

8

Plaintiff,
9
v.
10

Case No. 16-cv-04350-HSG
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
ATTORNEY’S FEES
Re: Dkt. No. 63

D. W.,

11

United States District Court
Northern District of California

Defendant.
12
13

Pending before the Court is Defendant D.W.’s amended motion for attorney’s fees under

14

the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3). See Dkt. No.

15

63.1 For the following reasons, the Court GRANTS the motion, but finds that the appropriate fee

16

award is $31,362.50.

17

I.

18

BACKGROUND
A.

Legal Framework of IDEA
IDEA provides states with special education funding that is conditional upon creating

19
20

rules, regulations, and policies that conform to the purposes and requirements of the federal

21

statute. See 20 U.S.C. §§ 1407, 1411–13; see also Honig v. Doe, 484 U.S. 305, 310 (1988)

22

(describing structure of the Education of the Handicapped Act, the predecessor of IDEA). In

23

California, those rules are found in the California Education Code §§ 56500, et seq. and Title 5 of

24

the California Code of Regulations §§ 3000, et seq. See Porter v. Bd. of Trs. of Manhattan Beach

25

Unified Sch. Dist., 307 F.3d 1064, 1066–67 (9th Cir. 2002). States that receive funding under

26

IDEA are required to provide all disabled children with a “free appropriate public education,” or

27
28

1

The Court finds this matter appropriate for disposition without oral argument and the matter is
deemed submitted. See Civil L.R. 7-1(b).

1

FAPE. See 20 U.S.C. § 1411(d). In large part, this means that every disabled child must receive

2

an appropriate “special education” along with “related services” “at public expense.” Id. §

3

1401(9). And school districts must “develop” an individualized educational program, or IEP, “for

4

each child with a disability.” Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524 (2007)

5

(citing 20 U.S.C. §§ 1412(a)(4), 1414(d)).

6

“When a party objects to the adequacy of the education provided, the construction of the

7

IEP, or some related matter, IDEA provides procedural recourse: It requires that a State provide

8

‘[a]n opportunity for any party to present a complaint . . . with respect to any matter relating to the

9

identification, evaluation, or educational placement of the child, or the provision of a free
appropriate public education to such child.’” Winkelman, 550 U.S. at 525 (quoting 20 U.S.C. §

11

United States District Court
Northern District of California

10

1415(b)(6)). By presenting a complaint, a party can pursue a process of review that begins with an

12

informal preliminary meeting. 20 U.S.C. § 1415(f)(1)(B)(i)(IV). If the complaint is not resolved

13

“to the satisfaction of the parents within 30 days,” id. § 1415(f)(1)(B)(ii), they may request an

14

“impartial due process hearing” to be conducted either by the school district or by the state

15

educational agency, id. § 1415(f)(1)(A). If the school district, rather than the state educational

16

agency, conducts the due process hearing, then “any party aggrieved by the findings and decision

17

rendered in such a hearing may appeal such findings and decision to the State educational

18

agency.” Id. § 1415(g)(1). Once the state agency has reached its decision, an aggrieved party may

19

file suit in federal court: “[a]ny party aggrieved by the findings and decision made [by the hearing

20

officer] shall have the right to bring a civil action with respect to the complaint.” Id. §

21

1415(i)(2)(A); see also § 1415(i)(1) (providing general overview of IDEA’s procedural

22

safeguards).

23

B.

24

State Agency Proceedings
On April 18, 2016, D.W.’s parents (“Parents”) initiated a due process hearing before the

25

California Office of Administrative Hearings (“COAH”), alleging that Tamalpais Union High

26

School District (“Tamalpais” or “District”) had denied D.W. a FAPE for the 2014–15 and 2015–

27

16 school years, in violation of IDEA and the California Education Code. See Administrative

28
2

1

Record (“AR”), Dkt. No. 50 at 000002–03.2 On July 8, 2016, after a three-day evidentiary

2

hearing, the ALJ found that Tamalpais did not deny D.W. a FAPE for 2014–15 or 2015–16 by

3

failing to offer sufficient special education services. See AR 000543 ¶¶ 6–12. But the ALJ found

4

that Tamalpais denied D.W. a FAPE for the 2015–16 school year by failing to provide a mental

5

health assessment, AR 000546 ¶¶ 19–20, and a sufficiently clear IEP offer for speech and

6

language therapy, AR 000549–50 ¶¶ 32–33. As a remedy, the ALJ ordered Tamalpais to

7

reimburse Parents for D.W.’s 2015–16 private school tuition and transportation costs, AR 000554

8

¶¶ 11–12, as well as pay for an independent mental health evaluation, AR 000552 ¶ 5.

9

C.

Federal Court Review
Tamalpais filed a complaint in this Court on August 2, 2016, seeking review of the ALJ’s

10

United States District Court
Northern District of California

11

decision. See Complaint, Dkt. No. 1. On September 8, the District moved to stay the ALJ’s order

12

pending resolution of the Court’s review. See Dkt. No. 12. The Court held a hearing on

13

September 19, see Dkt. No. 18, and granted in part and denied in part the motion on October 4, see

14

Dkt. No. 24. The Court refused to stay enforcement of the mental health evaluation, finding that

15

the District had failed to meet its burden to show a likelihood of success of prevailing on the

16

merits. See id. at 16. But the Court stayed the award of reimbursement for private school tuition

17

and transportation costs because all the preliminary injunction factors weighed in favored of

18

Tamalpais. See id. at 17–21.
Tamalpais and D.W. filed cross-motions for summary judgment on February 6, 2017. See

19
20

Dkt. Nos. 43, 44. On September 21, 2017, the Court denied each motion and affirmed the ALJ’s

21

decision in its entirety. See Dkt. No. 55 at 28. The Clerk entered judgment that same day. See

22

Dkt. No. 56.

23

D.

D.W.’s Motion for Attorney’s Fees
D.W. initially brought his motion for attorney’s fees on February 27, 2018. See Dkt. No.

24
25

57. D.W. filed an amended motion for attorney’s fees on March 21, 2018, see Dkt. No. 63

26

(“Mot.”), which the Court clarified was the operative motion, see Dkt. No. 66. Tamalpais opposed

27
28

2

For consistency, the Court refers to the AR by its original Bates number pagination, which
appears in the lower right-hand corner of each page. The AR is filed under seal at Dkt. No. 50.
3

1

on April 11, see Dkt. No. 65 (“Opp.”), and D.W. replied on April 17, see Dkt. No. 67 (“Reply”).

2

On December 6, 2018, the Court gave D.W.’s counsel an opportunity to make a

3

“compelling showing of good cause” for why she failed to bring her motion for attorney’s fees

4

within the 14-day statutory time limit. See Dkt. No. 69. Counsel explained that she had believed

5

the statute of limitations was based on an analogous state action (rather than Rule 54) and that as a

6

sole practitioner, she had other clients demanding her “immediate attention” at the time that

7

judgment was entered. See Dkt. No. 70. The Court found that counsel for D.W. had “made a

8

sufficiently compelling showing of good cause as to why the motion for attorney’s fees was made

9

more than 14 days after entry of judgment” and exercised its discretion to allow D.W.’s claim for
fees to proceed. See Dkt. No. 71 at 2 (citing In re Veritas Software Corp. Sec. Litig., 496 F.3d

11

United States District Court
Northern District of California

10

962, 972 (9th Cir. 2007)). Further, the Court ordered the parties to meet and confer regarding the

12

fee request to see if they could reach a negotiated agreement. See Dkt. No. 71 at 2. Because the

13

parties have not indicated that they were able to reach an agreement, the Court will proceed to

14

adjudicate D.W.’s motion for attorney’s fees.

15

II.

LEGAL STANDARD
In an IDEA action, “the court, in its discretion, may award reasonable attorneys’ fees as

16
17

part of the costs . . . to a prevailing party who is the parent of a child with a disability.” 20 U.S.C.

18

§ 1415(i)(3)(B). See also Aguirre v. Los Angeles Unified Sch. Dist., 461 F.3d 1114, 1117 (9th Cir.

19

2006) (explaining IDEA’s fee-shifting provision). “Fees awarded . . . shall be based on rates

20

prevailing in the community in which the action or proceeding arose for the kind and quality of

21

services furnished.” 20 U.S.C. § 1415(i)(3)(C). “Under the Supreme Court’s generous

22

formulation of the term, plaintiffs may be considered ‘prevailing parties’ for attorney’s fees

23

purposes if they succeed on any significant issue in litigation which achieves some of the benefit

24

the parties sought in bringing suit.” Irvine Unified Sch. Dist. v. K.G., 853 F.3d 1087, 1092 (9th

25

Cir. 2017) (internal quotations omitted). The level of success a plaintiff achieves is relevant to

26

determining the amount of fees that should be awarded. See Aguirre, 461 F.3d at 1121.

27

III.

28

DISCUSSION
D.W. asks the Court to award attorney’s fees in the amount of $126,897.61 and costs in the
4

1

amount of $2,761.82 to his counsel, Susan Foley. See Declaration of Susan E. Foley (“Foley

2

Decl.”), Dkt. No. 63-1 ¶ 6. The District contends that the Court “should substantially reduce any

3

fee award” because (1) counsel has failed to justify her hourly rate; (2) the fee statements “contain

4

a number of highly questionable fee entries”; (3) D.W. seeks non-recoverable costs; and (4) the

5

request “fails to account for [D.W.’s] degree of success.” Opp. at 7. The Court begins with the

6

District’s fourth ground before discussing the others in the order presented.

7

A.

The District contends that D.W.’s fees must be “reduced to account for his limited degree

8
9

Degree of Success

of success,” and asks the Court to reduce the fees awarded based on the administrative
proceedings by “at least fifty percent” and deny all fees for litigation before this Court. Opp. at

11

United States District Court
Northern District of California

10

14–15.

12

The “extent of a plaintiff’s success is a crucial factor in determining the proper amount of

13

an award of attorney’s fees,” and “where the plaintiff achieved only limited success, the district

14

court should award only that amount of fees that is reasonable in relation to the results obtained.”

15

Hensley v. Eckerhart, 461 U.S. 424, 440 (1983); see also Aguirre, 461 F.3d at 1121 (holding that

16

IDEA fee awards are governed by Hensley).

17
18

i.

Administrative Proceedings

The District contends that D.W.’s request for fees from the proceeding before the COAH

19

should be halved, because as to the three distinct issues raised by D.W., he “failed to prevail on the

20

first issue, partially prevailed on the second issue, and prevailed on one of five sub-issues in the

21

third issue.” See Opp. at 14. Counsel does not respond directly to this argument in her Reply.

22

Counsel’s degree of success for D.W. in the administrative proceedings was decidedly

23

mixed. See Dkt. No. 55 at 6–7. For instance, the ALJ found that Tamalpais denied D.W. a FAPE

24

for the 2015–16 school year by failing to provide a mental health assessment, AR 000546 ¶¶ 19–

25

20, and a sufficiently clear IEP offer for speech and language therapy, AR 000549–50 ¶¶ 32–33.

26

As a remedy for these violations, the ALJ ordered Tamalpais to reimburse Parents for D.W.’s

27

2015–16 private school tuition and transportation costs, AR 000554 ¶¶ 11–12, as well as pay for

28

an independent mental health evaluation, AR 000552 ¶ 5. But the ALJ also found that Tamalpais
5

1

did not deny D.W. a FAPE for 2014–15 or 2015–16 by failing to offer adequate special education

2

services. See AR 000543 ¶¶ 6–12.

3

Given counsel’s “pervasive murkiness” throughout the proceedings, Dkt. No. 55 at 19, and

4

D.W.’s mixed record of success in the administrative hearing, the Court finds that an award of

5

50% of the attorney’s fees claimed for proceedings before the ALJ is fair. Cf. J.C. v. Vacaville

6

Unified Sch. Dist., No. CIV.S-05-0092FCDKJM, 2007 WL 112138, at *5 (E.D. Cal. Jan. 10,

7

2007) (awarding 40% of claimed fees where Plaintiff prevailed on two of five claims).

8
9

ii.

District Court Litigation

It was the District, not D.W., which filed a complaint for federal court review of the
COAH proceeding. See Complaint. Thus, D.W. was forced to defend the results of the

11

United States District Court
Northern District of California

10

administrative proceeding (including the portions in which he prevailed). First, D.W. opposed the

12

District’s attempt to temporarily stay the ALJ’s order, defeating the stay as to the mental health

13

evaluation but not as to the reimbursements. See Dkt. No. 24. Second, on his motion for

14

summary judgment, D.W. achieved an affirmance of the ALJ’s order but failed to overturn

15

portions of the order with which he disagreed. See Dkt. No. 55. The Court will review the fees

16

claimed for each of these stages of the proceeding in turn.

17

With regards to the District’s motion for preliminary relief, counsel achieved mixed results

18

for her client, defeating the District’s request for a stay on one of the ALJ’s orders but losing on

19

the other two issues. See Dkt. No. 24 at 16–21. From what the Court can piece together from Ms.

20

Foley’s vague billing entries, she claims 23.7 hours of work related to D.W.’s opposition to the

21

District’s motion. See Foley Decl. at 18 (ECF numbering). This number of hours is excessive,

22

particularly given the lack of specificity in the billing entries and D.W.’s success on only one of

23

the issues. See 20 U.S.C. § 1415(i)(3)(F)(iii). The Court finds that counsel is entitled to only 10

24

hours of fees for her partially successful work in opposition to the District’s motion for a

25

temporary stay.

26

On summary judgment, D.W. achieved an affirmance of the ALJ’s order in its entirety, but

27

the Court completely rejected his argument that the ALJ erred on several grounds. See Dkt. No.

28

55. Thus, D.W. is a prevailing party, but only as to the issues he defended on summary judgment,
6

1

and not as to those that he raised. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir.

2

1994) (granting request for “attorneys fees incurred in defending” school district’s appeal).

3

Counsel’s billing records lack detail, but from what the Court can decipher, counsel is claiming

4

approximately 43.4 hours in connection with the motion for summary judgment. See Foley Decl.

5

at 13–14 (ECF numbering). However, a reduction in fees is appropriate not only due to D.W.’s

6

mixed success, but also because counsel’s “shape-shifting and lack of clarity as to the nature of the

7

claim being asserted have resulted in a muddled record and needless expenditure of resources by

8

this Court, the ALJ and the parties.” See Dkt. No. 55 at 23. Thus, after discounting both for

9

D.W.’s partial success and the quality of advocacy, the Court finds that counsel is entitled to 15
hours of fees (approximately one-third of those claimed) for this portion of the district court

11

United States District Court
Northern District of California

10

litigation.
Further, given counsel’s late-filed and poorly-documented fee request, the Court finds that

12
13

no attorney’s fees should be awarded for the preparation of the fee motion. Accordingly, the

14

Court denies the request for all attorney’s fees arising from the district court litigation other than

15

the 10 hours it awarded in conjunction with the District’s motion for a stay and the 15 hours

16

awarded for the successful opposition to the District’s motion for summary judgment.

17
18

B.

Counsel’s Hourly Rate
D.W.’s counsel claims a rate of $325 per hour of work performed at the administrative

19

level and $450 per hour for work performed before this Court. See Mot. at 4. The District

20

contends that counsel “has simply not met her burden of proof supporting her dual rates” and that

21

an hourly rate of between $300 and $325 for all work would be appropriate. Opp. at 9.

22

“Reasonable attorneys fees are to be calculated according to the prevailing market rates in

23

the relevant community.” Sam K. v. Hawaii Dep’t of Educ., 788 F.3d 1033, 1041 (9th Cir. 2015)

24

(internal quotation omitted). The moving party bears the burden of “produc[ing] satisfactory

25

evidence of the prevailing market rates.” Id. (internal quotation omitted). A district court “may

26

consider the fees awarded by others in the same locality for similar cases” and may employ its

27

“own knowledge of customary rates and [its] experience concerning reasonable and proper fees.”

28

Id. (internal quotation omitted). However, the opinions of other attorneys are not conclusive when
7

1

determining the prevailing market rate, particularly because attorneys may be self-interested in

2

advocating for higher rates. See id.
Ms. Foley received her law degree in 2002 and was admitted to the State Bar of California

3

in 2004. See Foley Decl. ¶ 9. Ms. Foley has “represented hundreds of disabled students” since

5

being admitted to the bar as an attorney and her legal practice has been entirely focused on special

6

education matters for the past decade. See id. ¶¶ 11–13. She has presented seminars and been

7

retained as an expert witness. See id. ¶ 14. Ms. Foley submitted a declaration from Elizabeth

8

Fitch Aaronson, a special education attorney who charges $300 per hour and who opined that Ms.

9

Foley’s rates were reasonable. See Declaration of Elizabeth Fitch Aaronson, Dkt. No. 63-2. In

10

addition, Ms. Foley submitted a declaration from Gail Hodes, a special education attorney who

11

United States District Court
Northern District of California

4

charges $390 per hour and who opined that Ms. Foley’s rates were reasonable. See Declaration of

12

Gail Hodes, Dkt. No. 63-3. Ms. Hodes disclosed that in 2016, a court in this district awarded

13

attorney’s fees to her at the rate of $300 per hour and to her co-counsel at the rate of $410 per

14

hour. See id. at 2.
The evidence Ms. Foley submitted demonstrates that the $325 per hour fee is a reasonable

15
16

prevailing market rate for proceedings before the COAH. Ms. Foley has not explained why she

17

should be entitled to a higher hourly rate for work performed before this Court. Nor has she

18

presented any evidence of an attorney who was awarded fees at a rate as high as $450 per hour.

19

Moreover, the claimed hourly rate would be unreasonable, given that “counsel’s shape-shifting

20

and lack of clarity as to the nature of the claim being asserted . . . resulted in a muddled record and

21

needless expenditure of resources by this Court, the ALJ and the parties.” See Dkt. No. 55 at 23.

22

Therefore, the Court will apply the $325 per hour rate to all reimbursable work performed by Ms.

23

Foley.

24

C.

Individual Fee Entries

25

First, the District contends that Ms. Foley “has failed to provide . . . any information

26

regarding ‘the manner in which time records were maintained.’” Opp. at 9 (quoting Civ. L.R. 54-

27

5(b)(2)). Ms. Foley explained in a declaration attached to her Reply that she kept her billing

28

records contemporaneously using a time sheet, and that the entries are later inputted into a billing
8

1

program. See Declaration of Susan Foley (“Foley Reply Decl.”), Dkt. No. 67-1 at 1. The Court

2

finds that Ms. Foley’s declaration, though belated, is sufficient to meet the requirements of Local

3

Rule 54-5(b)(2).
Second, the District objects to several specific billing entries as unreasonable because they

4
5

are excessive or vague. See Opp. at 9–10. To begin, the Court has already determined which

6

portions of the district court litigation are reimbursable, so it does not need to rule on the District’s

7

individual objections. The Court agrees with the District that the 2.3 hours Ms. Foley claimed for

8

traveling to Marin County on June 12, 2016 to familiarize herself with the hearing site and

9

calculate the driving time to the hearing, see Foley Reply Decl. at 2–3, is an unreasonable expense
(particularly given the availability of services like Google Maps or Waze). Further, the Court

11

United States District Court
Northern District of California

10

denies the request for 2.9 hours for preparing the unsuccessful motion for additur, because

12

counsel’s failure to raise her claim for toll reimbursement was a mistake on her part and should

13

not be reimbursed by the District. See Dkt. No. 28 at 28. The Court finds that other than these 5.2

14

hours, the remaining time entries for work related to the administrative hearing are reasonable and

15

should be awarded.
Third, the District seeks to exclude the entirety of the 22.8 hours billed by Ms. Foley’s

16
17

paralegal at a rate of $195 per hour. See Opp. at 13. The Court agrees that the time entries for this

18

unidentified paralegal’s time to “attend hearing, assist attorney,” see Foley Decl., are hopelessly

19

vague and cannot be awarded.

20
21

D.

Recoverability of Costs
The District contends that the Court should disallow the entirety of the $2,782.72 in

22

requested costs. See Opp. at 15. Counsel submitted billing statements with costs, check images,

23

individual receipts, and handwritten notes in support of her claim for costs. See Foley Decl. at 15–

24

45 (ECF numbering). It was the District, not Ms. Foley, that itemized and totaled up these

25

“inscrutable” costs in a format that it is at least somewhat amenable to review. See Opp. at 16–17.

26

The use of the term “costs” in the IDEA “was not meant to be an open-ended provision

27

that makes participating States liable for all expenses incurred by prevailing parents in connection

28

with an IDEA case—for example, travel and lodging expenses or lost wages due to time taken off
9

1

from work.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006).

2

Rather, recoverable costs under the IDEA are limited to “the list set out in 28 U.S.C. § 1920, the

3

general statute governing the taxation of costs in federal court.” Id. at 298. Section 1920 allows

4

the taxation of costs for: (1) clerk and marshal fees; (2) fees for transcripts “necessarily obtained

5

for use in the case”; (3) printing and witness fees; (4) fees for copying materials “necessarily

6

obtained for use in the case”; (5) docket fees; and (6) compensation of court appointed experts and

7

interpreters. See 28 U.S.C. § 1920.
Most of the claimed costs (such as hotel and meal reimbursements) cannot even plausibly

8

fit into any of the categories of costs that may be taxed under Section 1920 and the IDEA. And

10

D.W. has done nothing to show that fees for transcripts and copying materials were necessary, as

11

United States District Court
Northern District of California

9

required by the statute. Accordingly, the Court denies the request for costs in its entirety.

12

IV.

13

CONCLUSION
In sum, the Court finds that $325 per hour is the prevailing rate, that counsel is entitled to

14

one-half of the fees incurred during the administrative hearing and 25 hours of fees incurred

15

before the district court, that 5.2 hours of fees should be excluded, that no paralegal fees have been

16

justified, and that no costs will be awarded. Thus, the Court calculates the awardable attorney’s

17

fees as follows, based on the billing records submitted by Ms. Foley:

18

Administrative hearing: (148.2 hours for administrative hearing phase – 5.2 hours disallowed) *

19

50% reduction for limited success * $325 per hour = $23,237.50

20

District court: (10 hours + 15 hours) * $325 per hour = $8,125.00

21

Accordingly, the Court GRANTS the motion for attorney’s fees under the IDEA and

22
23
24
25
26

awards D.W. $ 31,362.50 in attorney’s fees.
IT IS SO ORDERED.
Dated: 3/25/2019
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

27
28
10