Rayna P. et al. v. Campus Community School
MEMORANDUM. Signed by Judge Gerald A. McHugh on 7/18/2019. Associated Cases: 1:16-cv-00063-GAM, 1:16-cv-00151-GAM(amf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RAYNA P., et al.,
CAMPUS COMMUNITY SCHOOL,
M.P., et al.,
CAMPUS COMMUNITY SCHOOL,
July 18, 2019
This is an IDEA case where Plaintiffs, having prevailed on most issues, seek counsel
fees. The Defendant charter school objects generally to the amount of fees sought and seeks a
reduction based upon its purported inability to pay. Plaintiffs’ attorneys prevailed for their
clients by providing competent and diligent representation in this multi-year, complicated, highly
specialized state administrative and federal litigation, and they are entitled to reasonable fees.
For the reasons that follow, I grant Plaintiffs’ motions in large part.
Factual and Procedural Background
Rayna P. and M.C., siblings, are children with disabilities. Their parents filed two
separate suits in this Court on each child’s behalf, appealing decisions by Delaware Special
Education Due Process Hearing Officers under the Individuals with Disabilities Education Act
(IDEA). I granted the majority of parents’ requested relief in both cases, thereby diverging
significantly from the Due Process Panel decisions. In Rayna P.’s case, I decided that the Due
Process Panel was wrong to cap relief at two years prior to May 27, 2014—the reasonable
discovery date—because there is no retrospective limit on relief under the IDEA. I also granted
one full day of compensatory education for every day she was present in school and 2.5 hours for
each day she was absent. This contrasts with the Panel’s denial of compensatory education for
days on which Rayna P. was present in school and its grant of just 1 hour of compensatory
education per day for days on which she was absent. I denied Rayna P.’s request for
compensatory education for three summers of summer school (extended school year or ESY). In
M.P.’s case, I decided that the Due Process Panel was wrong to excuse as “reasonable” a denial
of free appropriate public education (FAPE) for a period of a year. I also increased the panel’s
allotted hourly rate for compensatory education from $17.50 to $70 and I rejected the Panel’s
order creating a four-year time limit on M.P.’s use of compensatory education funds, ordering
instead that M.P. had until the end of his 21st year (he was 13 at the time I decided the case) to
use the funds. But I upheld the Panel’s denial of compensatory education for summer school
A. Legal Standard
The IDEA, which formed the basis of Plaintiffs’ prevailing cases and therefore applies
here, is a fee-shifting statute. See 20 U.S.C. § 1415(i)(3)(B). It allows a court, in its discretion,
to award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability
who is the prevailing party in an IDEA case. Id. “A request for attorney's fees should not result
in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “The essential
goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.”
Fox v. Vice, 563 U.S. 826, 838 (2011).
A “prevailing party” is a party that succeeds on any significant issue in litigation which
achieves some of the benefit sought in bringing suit. See Hensley, 461 U.S. at 433 (abrogated in
part by statute in the context of prisoner litigation); D.F. v. Collingswood Borough Bd. of Educ.,
694 F.3d 488, 501 (3d Cir. 2012). Defendants do not dispute that Plaintiffs were the prevailing
parties in the underlying IDEA actions here. They prevailed on nearly every claim of requested
relief save for a request for compensation for summer school (ESY), and are therefore entitled to
reasonable attorneys’ fees.
Reasonable attorneys’ fees are determined by “multiplying the number of hours
reasonably expended by a reasonable hourly rate.” Maldonado v. Houstoun, 256 F.3d 181, 184
(3d Cir. 2001) (citing Hensley, 461 U.S. at 424). This is known as the “lodestar.” Id. “The
party seeking attorney’s fees has the burden to prove that its request for attorney’s fees is
reasonable. To meet its burden, the fee petitioner must ‘submit evidence supporting the hours
worked and rates claimed.’” 1 Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)
(quoting Hensley, 461 U.S. at 433). The presumption is that the lodestar is the reasonable fee,
[h]owever, the district court has the discretion to make certain adjustments to the lodestar. The
party seeking adjustment has the burden of proving that an adjustment is necessary.” Id.
Plaintiffs seek an award of attorneys’ fees and costs for both cases in the total amount of
$375,869.86, to which Defendant objects.
Although Maldonado and many of the cases that set forth the legal standard for determining a
fee award do so in the context of awarding attorney’s fees pursuant to 42 U.S.C. § 1988, the
Third Circuit “interpret[s] the language of § 1988 and the IDEA attorneys’ fees provision in the
same way.” M.R. v. Ridley Sch. Dist., 868 F.3d 218, 225 (3d Cir. 2017) (internal quotation
B. Number of Hours Reasonably Expended
“Counsel for the prevailing party should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S.
at 434. The court may also exclude any excessive or redundant hours. Maldonado, 256 F.3d at
184. Counsel should maintain billing time records in a manner that will enable a reviewing court
“to determine if the hours claimed are unreasonable for the work performed.” Washington v.
Phila. Cty. Ct. Com. Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996) (internal citations omitted). That
is, a fee petition should be sufficiently specific and include “‘some fairly definite information as
to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations,
and the hours spent by various classes of attorneys, e.g., senior partners, junior partners,
associates.’” Id. (quoting Rode, 892 F.2d at 1190).
Defendant challenges Plaintiffs’ billing records for vagueness and lack of specificity. I
find the items listed in Plaintiffs’ attorneys’ billing records sufficiently specific to allow me to
determine whether the hours claimed are unreasonable for the work performed. Plaintiffs’
attorneys bill for items such as “research case law governing statute of limitations,” “review of
file materials regarding strategy” and “preparation of correspondence to Hearing Officer,” and
“in-person discussion with counsel.” Such entries are sufficiently specific. See Washington, 89
F.3d at 1037 (holding that entries such as “research,” “review,” “prepare,” “letter to,” and
“conference with” met standards of specificity).
Hours Spent on Intraoffice Communications
Defendants protest that Plaintiffs seek to generate an inordinate amount of presumably
unnecessary “fees for excessive intraoffice communications and fees for communications with
clients, none of which would ordinarily be passed on to clients.” I disagree. By Defendant’s
count, Plaintiffs’ attorneys’ billing records contain 768 references to “intraoffice
communications. While this number appears high at first glance, a closer look at Plaintiffs’
billing records suggests an appropriate amount of time spent on internal communications.
Plaintiffs’ billing records are organized by date, not by task or attorney. I note that this is
far from ideal, requiring the court to expend time tallying the hours spent on intraoffice
communications.” Having undertaken that tally, I calculate that Plaintiffs’ attorneys billed
183.48 hours in the Rayna P. matter and 187.025 hours in the M.P. matter for intraoffice
communications over a course of 4.5 years or approximately 236 weeks of litigation. That
amounts to approximately 1.5 hours per week. Plaintiffs explain that most of the intraoffice
communications involved more junior attorneys consulting with more senior supervisory
attorneys, an assertion supported by my review of the billing records. A junior attorney
consulting more senior attorneys about a complicated special education matter for a total of 1.5
hours per week seems perfectly reasonable. The records reflect that lower-billing junior
attorneys did the bulk of the work on both matters and relied on the work and contributions of
senior—more expensive—attorneys only when necessary. That had the effect of minimizing the
total fees generated. For these reasons I reject Defendant’s argument that Plaintiffs’ attorneys’
fees should be discounted for time spent on intraoffice communications.
Duplication Across Cases
Defendant also suggests—again without identifying the numbers it relies upon to reach
its mathematical conclusion—that only 54% of Plaintiffs’ attorneys’ work on these two cases
was unique. That is, Defendants suggest that 46% of the work done on each individual case was
identical to the work done on the other case and therefore redundant. I fail to see how this could
“‘A reduction for duplication is warranted only if the attorneys are unreasonably doing
the same work.’” Damian J. v. Sch. Dist. of Phila., 2008 WL 1815302 at *4 (E.D. Pa. Apr. 22,
2008) (quoting Rode, 892 F.2d at 1187) (emphasis in original). Defendant does not allege that
such was the case here: that two or more attorneys unreasonably did the same work. Rather,
Defendant seemingly argues that single attorneys were billing twice for identical work done on
two very different cases.
“A reduction for duplication is  warranted when a single attorney bills twice for the
same work.” Sch. Dist. Phila. V. Kirsch, 2017 WL 131808, at *6 (E.D. Pa. Jan. 11, 2017)
(emphasis added). But Rayna P. and M.P.’s cases were not identical and required similar but not
identical work. Rayna P. and M.P. are two different children with distinct IDEA claims
involving distinct facts, who were involved in two separate Due Process hearings, and then
brought two separate cases before this Court appealing those hearing determinations. The only
place there has been substantive overlap in legal work and briefing has been in this fee petition,
which represents a small fraction of the overall multi-year litigation. I therefore cannot agree
that Plaintiffs’ attorneys engaged in much duplicative work in these two distinct cases.
That being said and having reviewed the separate billing records for Rayna P. and M.P. in
great detail, a question can fairly be raised about overlapping time entries with identical
descriptions such as when Plaintiffs’ attorneys corresponded with the children’s parents. There
are identical time logs for such entries across the two billing records (e.g., 0.13 hours for
“telephone communication with client” billed by “BS” to Rayna P. on 5/15/2014 and 0.13 hours
for “telephone communication with client” billed by “BS” to M.P., also on 5/15/2014). It makes
sense that, with respect to such entries, Plaintiffs’ attorneys or paralegals made one call to the
children’s parents about both cases and then split the time in half between the two billing
records. I therefore credit counsel’s assertion that, where the same task benefited both children,
the time was divided between the billing records.
I do so with sensitivity to Defendant’s assertion that “it is also possible that substantially
similar time entries reflect a double counting of the hours spent, particularly where the majority
of the billing descriptions do not specify whether the work identified was performed” just for
Rayna P., M.P., or both. Kirsch at *7. I am able to dismiss Defendant’s assertion because
Plaintiffs’ attorneys dealt with this possibility by conceding that there may have been some
inadvertent duplication, leading them to build in an across-the-board 5% discount in their fees to
account for possible double billing. I am impressed by Plaintiffs’ counsel’s candor and
persuaded that their 5% discounting appropriately and sufficiently accounts for any inadvertent
double billing across these two distinct cases.
C. Hourly Rates
Plaintiffs bear the burden of establishing their attorneys’ reasonable rate. Maldonado,
256 F.3d at 184. A reasonable hourly rate is calculated based on the prevailing market rates,
determined based on “the rates prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Interfaith Cmty. Org. v. Honeywell
Int'l, Inc., 426 F.3d 694, 708 (3d Cir. 2005), as amended (Nov. 10, 2005) (citing Loughner v.
Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001); see also 20 U.S.C. § 1415(i)(3)(C)
(defining a reasonable hourly rate as one “based on rates prevailing in the community in which
the action or proceeding arose for the kind and quality of services furnished.”).
The court must “assess the experience and skill of the prevailing party’s attorneys and
compare their rates to the rates prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Rode, 892 F.2d at 1183.
Plaintiffs’ attorneys have provided an affidavit from the principal and founder of the law
firm in which they practice. Dennis McAndrews, a highly regarded practitioner of special
education law with 36 years experience, attests that he is familiar with the hourly rates charged
by experienced and capable special education lawyers practicing in Delaware and the Third
Circuit and that the hourly rates requested by Plaintiffs’ attorneys—his subordinates—are
reasonable. He underscores his conclusion by noting that “[s]pecial education litigation, both at
the administrative level and in federal courts, is a complex, highly specialized field of law in
which relatively few attorneys practice.” I recognize Mr. McAndrews as an expert and leader in
the field of special education law.
An attorney’s showing of reasonableness must rest on evidence other than the attorney’s
own affidavits. Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984). Defendant does not attack
Mr. McAndrews’ affidavit as unreliable, even though he is attesting to rates for attorneys in his
own firm. This is a tacit recognition of both his expertise and his professional reputation for
integrity, and I commend defense counsel for their professionalism in recognizing this. And,
technically, he is not attesting to his own rate. But Mr. McAndrews’ firm will be the recipient of
any fee award, making it important to consider other evidence, and appropriate for the court to
undertake an independent assessment of the rates prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and reputation.
Plaintiffs have provided the most recent—July 2018—fee schedule for Community Legal
Services of Philadelphia (CLS). As an initial matter, I note that, with the exception of Attorney
Mahler’s rate, all of the requested rates fall with the CLS schedule. Furthermore, Defendant
does not challenge the hourly rates for all of Plaintiffs’ attorneys but only of Attorneys Gehring,
Konkler-Smith, Ryan, and Mahler. As to them, Defendant contends that the hourly rates sought
are unreasonable, but it provides no counter-evidence of appropriate hourly rates.
The CLS Fee Schedule outlines the fees charged by CLS in cases where the law permits
the award of attorneys’ fees. See Cmty. Legal Servs. Of Phila., Attorney Fees: Explanatory
Notice to the Public (July 1, 2018), http://clsphila.org/about-cls/attorney-fees (last visited July
10, 2018). Courts widely accept it as an appropriate benchmark. The Court of Appeals itself has
explicitly endorsed its use: “The fee schedule established by Community Legal Services, Inc.
(“CLS”) has been approvingly cited by the Third Circuit as being well developed and has been
found by the Eastern District of Pennsylvania to be a fair reflection of the prevailing market rates
in Philadelphia.” Maldonado, 256 F.3d at 187 (internal quotation marks omitted). Numerous
district judges in this Circuit have continued to use the CLS fee schedule as an appropriate
benchmark for establishing hourly rates since then, albeit with some exceptions. 2 See, e.g.,
Phillips v. Phila. Hous. Auth., 2005 WL 3488872, at *6 (E.D. Pa. Dec. 20, 2005) (looking to the
CLS Fee Schedule as a fair reflection of the prevailing market rates in Philadelphia); Pelzer v.
See Damian J. v. Sch. Dist. of Phila., 2008 WL 1815302 at *2 (Apr. 22, 2008) (refusing to apply the
CLS schedule because “[t]he only criteria reflected in the CLS fee schedule is years of experience . . .
[and] does not take into account the specialized skills and advanced degrees the attorneys bring to their
practice [and] their experience in the particular field of special education . . .”); Mary Courtney T. v. Sch.
Dist. of Philadelphia, 2009 WL 185426, at *3 (E.D. Pa. Jan. 22, 2009) (determining that it would be
inappropriate to apply the CLS fee schedule in a case that did not involve CLS-affiliated attorneys, where
the parties provided sufficient evidence of prevailing market rates, and because “the CLS schedule does
not take into account any specialized skills or experience the attorneys bring to their practice.”); M.W. v.
Sch. Dist. of Phila., 2016 WL 3959073 (E.D. Pa. Jan. 11, 2017) (writing that “the fees set forth in the
upper brackets of the 2014 CLS Fee Schedule seem out of sync with what attorneys in the special
education field actually collect from their clients or from the School District” but nonetheless using the
CLS Fee Schedule as a framework for setting fee rates and acknowledging that “[t]he Third Circuit has
endorsed previous versions of the CLS Fee Schedule as a reasonable reflection of market rates.”) (citing
Maldonado, 256 F.3d at 187).
City of Phila., 771 F. Supp. 2d 465, 470-71 (E.D. Pa. Feb. 17, 2011) (using the CLS rate
schedule as an appropriate benchmark); Gwendolyn L. v. Sch. Dist. of Philadelphia, 2014 WL
2611041, at *4 (E.D. Pa. June 10, 2014) (“The Court will look to the CLS Schedule's rate . . . to
assess a reasonable rate.”); M.M. v. Sch. Dist. Phila., 142 F. Supp. 3d 396, 406 (2015)
(considering but not relying on the CLS fee schedule as an exclusive tool).
In fact, in the special education context, several courts have recognized that the CLS
Schedule may well understate the expertise of practitioners. See, e.g., E.C. v. Sch. Dist. of Phila.,
91 F. Supp. 3d 598, 606 (E.D. Pa. Mar. 4, 2015) (“[T]he CLS fee schedule does not take into
account any specialized skills in the field of special education.”); accord, Mary Courtney T. v.
Sch. Dist. of Philadelphia, 2009 WL 185426, at *3 (E.D. Pa. Jan. 22, 2009); Damian J., 2008
WL 1815302, at *4; Ryan P. v. School District of Philadelphia, 2008 WL 724604 at *6 (E.D. Pa.
Mar. 18, 2008).
I therefore follow the many district judges in the Circuit and the Third Circuit itself in
adopting the CLS Fee Schedule as an appropriate benchmark against which to evaluate a fee
request, particularly where, as here, the defense disputes the rates sought by Plaintiffs, but does
not submit evidence. See Maldonado, 256 F.3d at 187.
I do this cognizant of the fact that CLS is based in Philadelphia and this case was litigated
in Delaware, for the following reasons. First, Defendant does not assert a regional difference
between Philadelphia and Delaware, and fees should not be discounted for reasons not raised by
the opposing party. McKenna v. City of Phila., 582 F.3d 447, 459 (3d Cir. 2009). Second,
counsel for Plaintiffs practice in both Pennsylvania and Delaware and maintain offices in both
states. In that regard, the firm for which defense counsel practices is itself headquartered in
Philadelphia, with a Wilmington regional office. This is consistent with the Court’s perception
of a regional market for legal services, encompassing Philadelphia, southern New Jersey, and
Delaware. District judges in New Jersey have recognized this reality as well, applying the CLS
schedule in their court. See Westberry v. Commonwealth Financial Sys., 2013 WL 435948
(D.N.J. 2013) (adopting the CLS Fee Schedule in an FDCPA case); Levy v. Glob. Credit &
Collection Corp., 2011 WL 5117855, at *4 (D.N.J. Oct. 27, 2011) (adopting the CLS fee
schedule in an FDCPA case because the rates quoted “are comparable to the fee schedules used
to calculate attorneys’ fees in other FDCPA cases in this district”). 3 Finally, even if Delaware
were considered a different market for legal services, where a firm brings particular expertise to
a forum, there is a legitimate basis on which to compensate counsel using rates from the venue
where they are located. See Court Awarded Attorney Fees, Report of the Third Circuit Task
Force, 108 F.R.D. 237, 249 n. 40 (1986) (citing Avalon Cinema Corp. v. Thompson, 689 F.2d
173, 140-41 (8th Cir. 1982) (stating that out-of-town counsel need not “always be limited to
lower local rates . . .” because “[i]t may not always be possible to find counsel in or near the
locality of the case who are able and willing to undertake difficult and controversial 
Defendant relies heavily upon Sch. Dist. of Phila. v. Williams, 2016 WL 877841, at *4
(E.D. Pa. Mar. 7, 2016), where the Court attempted to survey market rates for lawyers
representing plaintiffs in IDEA cases and concluded that even where counsel’s qualifications
might warrant a fee in accordance with the CLS schedule, the private market for such cases
By way of contrast, in venues more remote from the Greater Delaware Valley area, courts have been
reluctant to make use of the schedule. Borrell v. Bloomsburg Univ., 207 F. Supp. 3d 454, 509 (M.D. Pa.
2016) (finding the CLS schedule irrelevant to determining the prevailing market rate in the Middle
District of Pennsylvania and, more specifically, to Wilkes-Barre); Souryavong v. Lackawanna Cty., 159
F. Supp. 3d 514 (M.D. Pa. 2016), reconsideration denied, 2016 WL 3940717 (M.D. Pa. July 21, 2016)
(“the CLS of Philadelphia...do[es] not speak to what the prevailing market rates are in the forum
litigation, i.e., the Middle District of Pennsylvania.”).
would not support a rate higher than $450 per hour. Accord, M.W. v. Sch. Dist. of Phila., 2016
WL 3959073 (E.D. Pa. Jan. 11, 2017).
But in arguing that the Williams case should be viewed as controlling authority setting
upward limits on fees in IDEA cases, the defense ignores precedent to the contrary. See I.W. v.
Sch. Dist. of Phila., 2016 WL 147148, at *10 (E.D. Pa. Jan. 13, 2016) (awarding counsel fees at
$600 per hour); Kirsch, 2017 WL 131808, at *6 (awarding hourly rates of $525, $500, and
$475). And the model followed in Williams assumes a hypothetical marketplace of clients
retaining counsel at hourly rates in a field of law which is, by its very nature, dependent on a
combination of contingent fees and fee awards. Adopting that approach runs the risk of
undervaluing the qualifications and contributions of counsel, which in turn can create
disincentives for highly accomplished lawyers to pursue IDEA cases. Consequently, I am not
inclined to give Williams particular weight.
Thus, using the CLS Fee Schedule as an appropriate basis for comparison, I note that all
except for Attorney Mahler’s requested hourly rates fall well within that schedule. Attorney
Gehring has 29 years of litigation experience, 7 of which were in special education law. He
requests an hourly rate of $495. This is well below CLS’s rate for attorneys with more than 25
years of experience ($650-700). Attorney Ryan has practiced law for 33 years and has 1.5 years
of experience practicing special education law. She also requests an hourly rate of $495.
Although her experience in special education is limited, I have reviewed her previous
experience, which involved complex shareholder class actions at well-respected firms,
culminating in the establishment of her own firm where she practiced for seven years before
joining McAndrews Law Offices. I find this experience in sophisticated litigation worthy of
recognition in determining her appropriate rate and note that at $495 it remains well below
CLS’s rate for attorneys with more than 25 years of experience ($650-700). These requested
rates for Attorneys Gehring and Ryan are also within the range of rates awarded by my
colleagues in the Circuit in I.W. and in Kirsch. Attorney Konkler-Goldsmith has 20 years of
experience in special education law and her requested hourly rate of $495 is at the low end of the
CLS schedule for attorneys with 16-20 years’ experience ($475-530).
Attorney Mahler has 6-7 years of experience practicing special education law and a year
of experience as a judicial law clerk. But her requested hourly rate of $395 is above the CLS
schedule for attorneys with 6-10 years of experience ($280-360). But I do not have sufficient
evidence in the record before me to permit a divergence from my guiding benchmark here: the
CLS Fee Schedule. I therefore limit Attorney Mahler’s hourly rate to $350, near the top end of
the CLS Fee Schedule for attorneys with 6-10 years of experience to account for her special
education specialization. See M.W. v. Sch. Dist. of Phila., 2016 WL 3959073 at *5 (awarding an
attorney $325 per hour two years ago when she had six years’ special education experience). In
choosing this rate, I am mindful of the reality detailed in the McAndrews affidavit, that very few
attorneys are, within the geographic area of Delaware, both qualified and willing to handle
special education cases, particularly on a contingency or statutory fee basis.
I note again that Plaintiffs’ billing records are organized by date, not by task or attorney.
This left the Court to spend considerable time tallying the hours Attorney Mahler spent on the
two cases. By my calculation, Ms. Maher spent 166.86 hours on Rayna P.’s case and 177.375
hours on M.P.’s case. Her proposed rate of $395 per hour therefore generated $65,909.70 in
Rayna P.’s case and $70,063.13 in M.P.’s case. But under the $350 hourly rate that I deem
appropriate for an attorney with her skills and experience, she is entitled to only $58,401.00 for
Rayna P.’s case and only $62,081.25 for M.P.’s case. I will therefore deduct the difference—
$7,508.7 in Rayna P.’s case and $7,981.88 in M.P.’s case—from the total attorneys’ fee award
requested by Plaintiffs.
D. Downward Departure for Partial Success
The lodestar “is presumed to be the reasonable fee.” Blum, 465 U.S. at 897. But “the
district court has the discretion to make certain adjustments to the lodestar. The party seeking
adjustment has the burden of proving that an adjustment is necessary.” Rode, 892 F.2d at 1183
(internal citation omitted).
Defendant does not argue that the total fee award should be reduced because Plaintiffs
were unsuccessful in their claims for summer school (ESY). Nor could they.
Downward departures are appropriate to account for the degree of the prevailing party’s
success. Hensley, 461 U.S. at 436-37. But “[w]here a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee . . . [i]n these circumstances the fee award
should not be reduced simply because the plaintiff failed to prevail on every contention raised in
the lawsuit.” Id. at 437 (abrogated by statute in the context of prisoner litigation) (noting that the
hours spent on an unsuccessful claim should be excluded only where that claim “is distinct in all
respects from his successful claims.” Id. at 440. “[T]he most critical factor is the degree of
success obtained.” Id. at 436. “There is no precise rule or formula for making these
determinations. The district court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the limited success.” Id. at 436-37.
Plaintiffs’ attorneys here obtained excellent results, obtaining nearly complete relief for
their clients. They lost only on the one minor claim for compensatory summer school education
(ESY), a nonfrivolous claim interrelated to the other claims and not raised in bad faith. It arose
out of the same set of facts involving the Defendant’s failures. Much of counsel’s time was
devoted to the litigation as a whole and the hours spent on the summer school (ESY) claim
cannot be divided. See Hensley, 461 U.S. at 435 (reasoning that in many cases claims involve a
“common core of facts” or are “based on related legal theories,” and “[m]uch of counsel’s time
will be devoted generally to the litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis.”). Given the significance of the overall relief obtained in
the IDEA actions, I decline to make further adjustments to the lodestar based on Plaintiffs’
degree of success on the summer school (ESY) claims.
Plaintiffs request an award of $1,533 in costs for the Rayna P. matter and $818.62 for the
M.P. matter for line items such as “postage” and “photocopies” and “mileage to/from Sir Speedy
– Due Process Binders” and “filing fee – Complaint.” The District argues that Plaintiffs’ request
should be denied because they fail to identify their costs with sufficient specificity. I agree in
Copying costs are reimbursable under 28 U.S.C. § 1920(4) (“A judge or clerk of any
court of the United States may tax as costs . . .the costs of making copies of any materials where
the copies are necessarily obtained for use in the case.”). “Accordingly, courts in this District
have awarded copying costs in IDEA actions.” M.W. v. Sch. Dist. Phila., 2016 WL 3959073
(E.D. Pa. Jan. 11, 2017). Also, in this Circuit, copying costs are recoverable “when it is the
custom of attorneys in the local community to bill their clients separately for them.” E.C., 91 F.
Supp. 3d at 616 (quoting Disciullo v. D’Amrosio Dodge, Inc., 2008 WL 4287319, at *7) (E.D.
Pa. Sept. 18, 2008). This Court has previously held that copying costs “are typically charged to a
fee-paying client.” Id. (quoting Marthers v. Gonzales, 2008 WL 3539961, at *4 (E.D. Pa. Aug.
13, 2008); see also I.W. v. Sch. Dist. Phila., 2016 WL 147148, at *21 (E.D. Pa. Jan. 13, 2016).
But “[t]he party seeking reimbursement for copying costs must describe the purpose of
the [copying] charge with sufficient specificity.” E.C., 91 F. Supp. 3d at 616 (citing Laura P. v.
Haverford Sch. Dist., 2009 WL 1651286, at *9 (reimbursing costs for “copies for hearing,”
“copies of research for hearing,” “copies for reply brief,” and “copies of exhibits,” but not for
unexplained copying costs); see also id. at 617 (denying reimbursement of copying charges
where the description read merely “insert legal tabs,” “binders,” electronic file-printing B/W).
Plaintiffs here have not described the purpose of their copying charges with any specificity—
identifying only “photocopies” and “postage” and so they are not entitled to reimbursement.
Plaintiffs contend that while their billing records are not specific, one need only compare
the billing records to their time sheets to know what exactly was being photocopied, mailed,
etcetera. If that is done line-by-line, it will identify the specifics of what is being claimed as
costs. Having expended substantial time computing hours, the Court declines to spend additional
time computing copying and postage costs.
To the extent Plaintiffs seek reimbursement for mileage and parking, “[c]osts for parking,
train fare, mileage, and travel expenses are not authorized by § 1920.” Neena S. ex rel. Robert S.
v. Sch. Dist. of Phila., 2009 WL 2245066, at *11 (E.D. Pa. July 27, 2009). But Plaintiffs’
request for “Filing fee-Complaint” is appropriate under 28 U.S.C. § 1920(1). Id. (“The . . . cost
for filing this action in federal court is reimbursable, and will be allowed.”). I therefore award
$400 in filing fee costs for the Rayna P. matter and $400 in filing fee costs for the M.P. matter
and deny the other requests for costs.
F. Contingency Fee Issue
As a result of prior proceedings in this matter, Plaintiffs obtained judgments for Rayna P.
of $169,687.50 and for M.P. of $208,740.00 to be placed in educational special needs trusts. In
securing representation from counsel, Plaintiffs entered into a representation agreement that
provided for a contingency fee in the amount of one-third (1/3) of any monetary award obtained
for the family and, separately, that counsel would be entitled to seek hourly fees from the
Defendant pursuant to the IDEA’s fee-shifting provision.
Defendant suggests that counsel’s separate recovery of fees under a contingency fee
agreement with Plaintiffs should serve to reduce statutory attorney fees but does not develop that
position with specific arguments. The existence of a contingent fee agreement does not by itself
require reduction of a fee award. The Supreme Court has consistently maintained that attorneys’
fees may be awarded to plaintiffs regardless of whether they were able to retain counsel on a feepaying or pro bono basis. Venegas v. Mitchell, 495 U.S. 82, 88 (1990) (“We have therefore
accepted, at least implicitly, that statutory awards of fees can coexist with private fee
More importantly for purposes of this case, the Court has also specifically held that “[t]he
attorney’s fee provided for in a contingent-fee agreement is not a ceiling upon the fees
recoverable in §1988,” Blanchard v. Bergeron, 489 U.S. 87, 96 (1989), finding that the
“intention of Congress was to encourage successful civil rights litigation.” Id. at 95. Recent
cases from district courts reinforce this principle. See, e.g., United States v. Cooper Health
System, 940 F. Supp. 2d 208 (D.N.J. 2013) (concluding under the False Claims Act that there is
no ethical or statutory limitation upon an attorney’s ability to collect fees through both a
contingent fee agreement and a fee-shifting statute.).
Blanchard charges district judges to use good judgment to assess what a reasonable fee is
under the circumstances of the case. 489 U.S. at 96. In that regard, it is important to recognize
that attorneys who practice in the field of special education have multiple responsibilities. They
represent both children and parents and, in some instances, the interests of parents diverge.
Counsel in such cases are often litigating past entitlements, while giving contemporaneous
advice as to a child’s educational options, and at the same time helping them plan for future
needs. In undertaking such representation on a contingent fee basis, counsel absorbs great risk.
That includes not only the risk of an unsuccessful outcome with no compensation for counsel
after substantial time invested, but also the financial risks that come from absorbing the overhead
of a law practice as well as the costs advanced in pursuit of a case.
In many instances, counsel carry those costs for a period of years, and case costs can be
particularly daunting following Arlington Cent. School District v. Murphy, 548 U.S. 291 (2006),
which held that the costs for expert witnesses are, as a general rule, no longer compensable to a
prevailing party. It also bears mention that the universe of cases in which counsel can seek a fee
award was significantly narrowed by the Supreme Court in Buckhannon Boarding and Care
Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598 (2001),
which limited the recoverability of fees to cases resolved by a judicial order or a consent decree,
rather than through settlement.
In short, enforceable contingent fee agreements address risk in a way that statutory fee
awards do not. They remain vital to the availability of counsel in IDEA cases. Consequently, the
Supreme Court’s conclusion in Blanchard is as important today as it was when the decision was
issued. Counsel’s compensation pursuant to a contingent fee agreement does not require a
reduction in a statutory fee award. On the other hand, it is equally clear that Blanchard requires
consideration of other compensation received by counsel. On the record here, notwithstanding
the risks undertaken by counsel in any contingent case, I am persuaded that some reduction in
statutory fees is appropriate because of other compensation received, specifically, a reduction of
$27,832 in the case of M.P., and a reduction of $22,652 in the case of Rayna P.
G. Defendant’s Ability to Pay
Defendant argues that it has exhausted its ability to pay any fee award and that any
judgment obtained by Plaintiffs’ attorneys will affect the resources available to Defendant’s
other students. This is not a relevant consideration. “[T]he losing party’s financial ability to pay
is not a special circumstance,” to consider in determining a fee award. Inmates of Allegheny Cty.
Jail v. Pierce, 716 F.2d 177, 180 (3d Cir. 1983) (internal quotation marks omitted). In the
specific context of the IDEA, my colleague Judge Tucker was confronted with a similar
argument in another case. See E.C. v. Sch. Dist. of Phila., 91 F. Supp. 3d 598 (2015). There, the
school district argued that an award of attorney’s fees “will be paid by operating funds and will
divert resources from direct educational services, including services to other students with
disabilities.” Id. at 615. Judge Tucker determined that the School’s District’s ability to pay
attorney’s fees was irrelevant to its obligation to pay attorney’s fees and that the IDEA’s “feeshifting provision does not authorize this Court to reduce the fee award on this basis.” Id.
(emphasis added); 4 accord, D. et al v. Rivera et al., No. 17-5272 (E.D. Pa. June 26, 2019)
Plaintiffs’ attorneys engaged in effective advocacy in these matters and prevailed on
nearly all counts. Quality advocacy requires time and effort and that effort should be
commended, not penalized. So taking into account the adjustments identified above, I award
parents a total of $157,804.80 in attorneys’ fees for the Rayna P. matter and $149,691.99 in
The Court of Appeals reached a similar result in a non-precedential case. “The fiscal woes that have befallen the
school . . . can neither be visited upon the shoulders of these plaintiffs nor excuse the school from its statutory
obligation of paying the reasonable fees here.” E.C. v. Philadelphia Sch. Dist., 644 F. App’x 154, 157 (3d Cir.
attorneys’ fees for the M.P. matter 5 and $800 total in costs for filing fees. The attorneys’ fees
granted are discounted only on the basis of Attorney Mahler’s suggested rate but otherwise
Plaintiffs’ attorneys’ fees request is granted in full.
For the foregoing reasons, I grant Plaintiffs’ motions in large part. An appropriate Order
/s/ Gerald Austin McHugh
United States District Judge
Plaintiffs requested a total sum of $187,965.50 in attorneys’ fees for the Rayna P. matter and $185,505.87 in
attorneys’ fees for the M.P. matter. I deducted from this request the difference between Attorney Mahler’s
suggested rate and the rate I found to be appropriate as discussed above, along with a downward adjustment because
of compensation pursuant to the contingent fee agreement.
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