ABRAHAM, et al v. DC

Filing 89

MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on 6/15/17. (Attachments: # 1 Appendix) (lsj)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEITH ALLEN, et al.,
Plaintiffs,
v.
DISTRICT OF COLUMBIA,
Defendant.

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Case No: 00-cv-591-RCL

MEMORANDUM OPINION
I.

INTRODUCTION
This opinion concerns eleven consolidated cases1 brought many years ago against the

District of Columbia for violations of the Individuals with Disabilities Education Act, 20 U.S.C. §
1400, et seq. (“IDEA”). As prevailing parties, plaintiffs filed motions seeking enforcement of
court orders awarding them attorneys’ fees pursuant to 20 U.S.C. § 1415(i)(3)(B)(1). On August
17, 2015, this Court found that the “District must pay plaintiffs $4,000—less any amount already
paid—plus interest, for each action in the consolidated cases, excepting Gaskins, No. 00-592.”
Aug. 18, 2015 Order at 1, ECF No. 71. It referred the matter to Magistrate Judge Harvey for a
Report and Recommendation on the total amount owed by the District in each action. Id. at 2.

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Abraham v. District of Columbia, No. 01-27; (AC) Clark v. District of Columbia, No. 06-439; Adams v. District of
Columbia, No. 03-2139; Allen v. District of Columbia, No. 00-591; Bradley v. District of Columbia, No. 99-3188;
Gaskins v. District of Columbia, No. 00-592; Isaac v. District of Columbia, No. 00-122; Jones v. District of Columbia,
No. 00-593; McDowell v. District of Columbia, No. 00-594; Thomas v. District of Columbia, No. 03-1791; Wingfield
v. District of Columbia, No. 00-121.

1

For the reasons stated below, the Court will accept and adopt in part, modify in part, and
reject in part Judge Harvey’s Report and Recommendation. It finds that the District owes no
additional fees or costs in Abraham v. DC, No. 01-cv-27, AC (Clark) v. DC, No. 06-cv-439, Allen
v. DC, No. 00-cv-591, Isaac v. DC, No. 00-cv-122, Jones v. DC, No. 00-cv-593, McDowell v. DC,
No. 00-cv-594, Thomas v. DC, No. 03-cv-1791, and Wingfield v. DC, No. 00-cv-121. However,
the District still owes $199,913 in fees and $779 in costs in Adams v. DC, No. 03-cv-2139, and an
additional $20,000 in fees in Bradley v. DC, No. 99-cv-3188. The District additionally owes
interest in every case.
II.

BACKGROUND
A.

Factual and Procedural History

The plaintiffs in the consolidated cases at issue (three of which are multi-plaintiff cases—
Abraham, AC (Clark), and Adams) brought claims against the District of Columbia pursuant to the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. The IDEA provides that
courts may award attorneys’ fees and cost to prevailing parties. See 20 U.S.C. § 1415(i)(3)(B)(I).
In 1999, Congress capped the fees payable by the District in such cases.

See Omnibus

Consolidated and Emergency Supplemental Appropriation Act of 1999, Pub. L. No. 105-277, §
130, 112 Stat. 2681 (1998). In 2003, Congress set a flat cap of $4,000 on attorneys’ fees for IDEA
actions. See Consolidated Appropriations Act of 2003, Pub. L. No. 108-7, § 144, 117 Stat. 11
(2003). In 2009, Congress passed the final rider relating to IDEA attorneys’ fees, stating:
Notwithstanding section 615(i)(3)(B) of the Individuals with Disabilities Education Act
(20 U.S.C. § 1415(i)(3)(B)), none of the funds contained in this Act or in any other Act
making appropriations for the government of the District of Columbia for fiscal year 2009
or any succeeding fiscal year may be made available—
(1) to pay the fees of an attorney who represents a party in or defends an IDEA
proceeding which was initiated prior to the date of the enactment of this Act in an
amount in excess of $4,000 for that proceeding.
2

Omnibus Appropriations Act, Pub. L. No. 111-8, § 814, 123 Stat. 524 (2009). The 2009 rider did
not provide a fee cap for future cases.
From 2001 through 2009, judgments (some of which were consent) were entered against
the District for attorneys’ fees and costs in each of the consolidated cases. Those judgments ranged
from $40,635.50 (Allen) to $2,500,000.00 (Abraham). After plaintiffs brought motions to enforce
the outstanding judgments and collect their fees, this Court found that, according to the law
summarized above, “the District is prohibited at this time from paying more than $4,000 per action
in this case for cases initiated prior to March 11, 2009, which includes all of the consolidated
cases.” See Aug. 18, 2015 Mem. Op. at 9, ECF No. 70. Plaintiffs were therefore “entitled by
statute to collect $4,000 per action in each case prior to 2009, less what has already been paid.”
Id. at 10. “[T]he term ‘action’ in the fee cap provisions ‘encompasses both administrative
proceedings and subsequent fee requests brought in the court by prevailing parties,’” so “the
District is not required to pay up to the fee cap a second time where administrative actions are
subsequently brought to federal court.” Id. at 11. In every case except Bradley and Wingfield,
some payment had been made either pre- or post-judgment, or both. Thus, plaintiffs were entitled
to $4,000 per action—as evidenced by Hearing Officer Decisions (HODs)—minus whatever had
been paid.
This Court also found that “[p]ost-judgment interest is appropriate when a district court
enters a judgment awarding reasonable attorneys’ fees under IDEA,” and that “[p]laintiffs are
entitled to post-judgment interest calculated at the statutory rate on each award under 28 U.S.C. §
1961(a).” Id. at 14–15. Section 1961 dictates that “interest shall be calculated from the date of
the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury
yield, as published by the Board of Governors of the Federal Reserve System, for the calendar

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week preceding [] the date of the judgment” and that “[i]nterest shall be computed daily to the date
of payment . . . and shall be compounded annually.” 28 U.S.C. § 1961(a)–(b). Interest is
compounded on the date of the judgment. See, e.g., Jefferson v. Milvets Sys. Tech., Inc., 986 F.
Supp. 6, 11–12 (D.D.C. 1997). The Court thus ordered that “[t]he District must pay plaintiffs
$4,000—less any amount already paid—plus interest, for each action in each of the consolidated
cases.” Aug. 18, 2015 Order at 1.
After finding that the parties failed to provide the necessary information to determine the
exact amount owed to plaintiffs in each case, the Court referred this matter to Magistrate Judge
Harvey for a report and recommendation on the total amount owed on each claim and the amount
of interest due from the date of judgment until October 1, 2015. Id. at 15. Because of the interplay
amongst Judge Harvey’s Report and Recommendation and each party’s objections thereto, the
Court will summarize Judge Harvey’s final calculations and then will turn to the specific issues
that are now before this Court: 1) Judge Harvey’s treatment of evidence/reliance on the District’s
payment documentation and plaintiffs’ objections thereto; 2) whether and how much to credit
payments made in the Adams case; 3) whether plaintiffs have waived objections regarding the
number of HODs in the Bradley case; and 4) the interest due in each case. 2

2

The court will not address the objections raised by either party and overruled by Judge Harvey that have not been
raised before this Court, e.g., statute of limitations and claim preclusion, or sections of the Report and
Recommendation where no objection has been lodged, e.g., overlapping plaintiffs.
In addition, Plaintiffs have made several independently numbered objections. Plaintiffs first argue that the District
has “launched an all-out assault and collateral attack on [seasoned] judgments, . . . [seeking] to re-litigate matters that
had already been resolved and included in the negotiations by both parties many years ago.” Pls.’ Objections at 1. In
addition, although not exactly an objection, plaintiffs argue that “[d]uring the negotiations with DCPS this counsel
negotiated away, conceded and gave up, and/or the various judges of this bench acceded to the District’s request and
reduced the amount actually due and owing to this counsel.” Id. at 18. Even given these concessions, “the District
now beseeches the Court to permit the District to collaterally attack the judgments and to reduce the amount to be paid
this counsel even further, . . . seeks the Court’s acceptance of the District’s false representation that post-judgment
payments were made, . . . [and] even opines that this counsel owes the District $200,000 as reimbursement for a nonexistent never made overpayment.” Id. at 18–19. Finally, plaintiffs ask that instead of the 45 day deadline for payment
imposed by Judge Harvey, defendants be required to make payment within 10 days. Id. at 20. Except for the final

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B.

Judge Harvey’s Calculations

Over the course of many months, Judge Harvey heard the evidence submitted by the parties
as well as their respective arguments.

On September 28, 2016, he issued a Report and

Recommendation discussing this evidence and the arguments, and responding to the parties’
objections. Along with his Report and Recommendation, Judge Harvey calculated the fees due in
each case (up to $4,000 per administrative action at issue as evidence by an HOD) as well as the
costs incurred. He summarized his findings in extensive “Amounts Due” charts in the Appendix
to the Report and Recommendation that include 1) the number of HODs; 2) the fee cap (HODs x
$4,000); 3) costs incurred to date; 4) fees paid to date; 5) costs paid to date; 6) the source data on
HODs and payments; 7) the remaining fees due up to the $4,000 fee cap; and 8) the remaining
costs due. According to this chart,3 the following fees and costs are still due in each case:
Case
Abraham v. DC, 01-27
AC (Clark) v. DC, 06-439
Adams v. DC, 03-2139
Allen v. DC, 00-591
Bradley v. DC, 99-3188
Isaac v. DC, 00-122
Jones v. DC, 00-593
McDowell v. DC, 00-594
Thomas v. DC, 03-1791
Wingfield v. DC, 00-121
TOTAL

Remaining Fees Due Remaining Costs Due
$250,077.25
$0
$24,743
$324
$199,913
$779
$0
$0
$4,000
$104.22
$2,403.50
$289
$0
$0
$13,500
$294.50
$13,292
$408
$4,000
$245
$511,928.75
$2,443.72

With respect to interest due on each judgment for attorneys’ fees, Judge Harvey calculated
the interest based on the full judgments in each case—consent or otherwise—not on the fees
available under the $4,000 statutory caps. Judge Harvey also considered partial payments that had

objection regarding date of payment, which is at this point moot, the Court views the other arguments not as
independent objections, but rather as statements that support plaintiffs’ other objections.
3

All of the charts contained herein are attached in an Appendix to this Memorandum Opinion.

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been made in each of the cases, with the exceptions of Bradley and Wingfield, where no payments
had been made. Some payments were made pre-judgment, which were acknowledged in the
applicable consent decrees and/or were conceded to by plaintiffs (i.e., Abraham, AC (Clark),
Adams, and Thomas). Where payments were made pre-judgment, Judge Harvey calculated interest
based on the remaining balance of the judgment (i.e., the judgment amount minus the pre-judgment
payments). So, for example, in Abraham, the total judgment was for $2,500,000, but $497,922.75
had been made in pre-judgment payments. Thus, Judge Harvey calculated interested based on the
remaining balance of $2,002,077.25 ($2,500,000 – $497,922.75).
Judge Harvey also found that other payments had been made,4 which the District claims to
have made post-judgment. The District, however, failed to offer evidence of the dates of payment.
Judge Harvey therefore listed those payments as made post-judgment, but because he could not
“accurately date the payments that Defendant made, [he] . . . calculate[d] interest based on the
original principal and then subtract[ed] the amount of the payment from that figure.” R&R
Appendix n.8, ECF No. 96-1. Thus, for example, in Allen, judgment was entered for $40,635.50,
and payment was made for $11,973.50. Judge Harvey calculated interest based on the $40,635.50,
then, from that interest figure, subtracted out $11,973.50 to get the remaining balance due.
The interest due on each judgment is summarized in the “Judgments Chart” of the
Appendix to the Report and Recommendation. The Chart includes: 1) the date of judgment; 2) the
type of judgment; 3) the amount of judgment; 4) pre-judgment payments; 4) post-judgment
payments; 5) the remaining balance due on the judgment; 6) the interest rate used; and 7) the
amount of remaining judgment plus interest remaining as of 10/1/2015. Judge Harvey calculated

4
As explained further below, plaintiffs claim that they never received any post-judgment payments with the exception
of one payment for $313.00.

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interest according to 28 U.S.C. § 1961. According to this chart, the following amounts of interest
are due in each case:
Case
Abraham v. DC, 01-27
AC (Clark) v. DC, 06-439
Adams v. DC, 03-2139
Allen v. DC, 00-591
Bradley v. DC, 99-3188
Isaac v. DC, 00-122
Jones v. DC, 00-593
McDowell v. DC, 00-594
Thomas v. DC, 03-1791
Wingfield v. DC, 00-121
TOTAL
C.

Remaining Interest Due (as of 10/1/2015)
$794,496.76
$4,463.88
$402,942.82
$15,784.65
$21,039.545
$13,263.73
$31,430.59
$34,531.54
$3,644.34
$12,802.13
$1,334,399.98

Evidence of Payment

Judge Harvey’s Report and Recommendation also describes in detail many of the
difficulties that have been present in these cases with regard to determining the proper fee award,
such as lack of available evidence, gaps in available evidence, questions about reliability of the
evidence, and poor or unhelpful recordkeeping systems. Nonetheless, using what was available to
him, Judge Harvey enunciated the following overarching principles. First, he found that plaintiffs
had the burden of establishing their entitlement to an award of fees and the appropriate amounts
of the judgments they sought to enforce, that the District had the burden of proving payment of the
judgments, and that where the District made a prima facie case of payment, the burden shifted
back to plaintiffs to prove that payment did not occur. R&R at 6–8, ECF No. 96. The parties
could use “all competent and relevant evidence” to prove that a payment had or had not been made.
Id. at 6–7. With respect to interest, Judge Harvey found that the statutory text requires the interest

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There appears to be a small mathematical error in Judge Harvey’s Bradley calculation. Judge Harvey found that the
amount of the remaining judgment plus interest remaining as of 10/01/2015 equaled $74,654.29. According to this
Court’s calculation, however, this sum actually equals $74,578.38. Thus, the remaining interest due should equal
$21,053.63. Nonetheless, because additional interest has accrued since 10/01/2015, this figure has been recalculated.

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to run from the date of judgment, not from the date that the 2009 fee cap was enacted. Id. at 8.
Finally, Judge Harvey determined that it was appropriate to apply “the fee payment cap of $4,000
not per civil action filed, but per administrative action at issue as evidenced by an HOD.” Id. at 9.
Because of the evidentiary difficulties mentioned above—such as the fact that “neither
Plaintiffs’ counsel nor DCPS keeps IDEA attorney’s fees records in a manner that would enable
the undersigned to easily make the calculations at issue,” R&R at 5—Judge Harvey relied in large
part on the District’s payment documentation, including documents showing the District’s intent
to make certain payments. Id. at 17–18. Plaintiffs objected to using these documents as evidence
of payments made because plaintiffs’ records reflected a lower payment or no payment at all. Id.
Judge Harvey found, however, that “based on the burden-shifting framework described above,
Defendant’s payment documentation constituted prima facie evidence of payment.” Id. at 18.
Acknowledging that the documents were drafted by the District and used to its benefit, Judge
Harvey found that they bore the following indicia of reliability:
[The District’s] documentation represents the most comprehensive contemporaneous
analysis of the amounts owed and paid for each plaintiff in these cases. Plaintiffs have
admitted as much before the undersigned in that they have relied upon the very same
documents in determining in some cases what amounts are owed and what amounts have
been paid. It is also worth noting that although Plaintiffs objected to the undersigned’s
reliance on Defendant’s records in certain instances, those records were consistent with
Plaintiffs’ records for the vast run of claims.
Id. at 18 (internal citations omitted). Furthermore, “while Plaintiffs maintain that they cannot
vouch for the accuracy of Defendant’s documentation, they offer nothing to supplant it other than
their representations as to what they have been paid.” Id. Judge Harvey also rejected plaintiffs’
argument that these records could not constitute evidence of payment because “these documents
were generated based on a prepayment process used by the District to receive IDEA attorney’s fee
invoices, review them, and then pay them to the extent allowed by law,” and “[t]he system was
directed at actually paying invoices contemporaneous to when they were received and was not
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created for the purpose of litigation.” Id. at 19–20. Finally, Judge Harvey noted that “although
Defendant’s records had their faults and gaps, the undersigned concludes that Plaintiffs’ payment
recordkeeping is unreliable by comparison, thereby undermining Plaintiffs’ ability to challenge
Defendant’s records with their own,” and that “[a]ll Plaintiffs offered at the hearing was their bare
representation that their own records reflect a different amount than Defendant’s records.” Id. at
20. As this was not sufficient to overcome the District’s prima facie showing of payment, Judge
Harvey relied on the District’s records. Id. at 20–21.
Plaintiffs object to Judge Harvey’s reliance on the District’s records. They argue that those
documents are inaccurate and do not represent prima facie proof of payment. Pls.’ Objections at
3–5, ECF No. 98. According to plaintiffs, the District’s proof of intent to pay does not constitute
proof of actual payment. Id. at 5. In addition, plaintiffs argue that they have provided any records
they have (such as proof of invoice and evidence that additional HODs were not included in the
District’s documentation), and that it is impossible to prove that they have not been paid beyond a
“bare representation.” Id. at 6–8. They also argue that Judge Harvey erred by finding that he was
unable to use plaintiffs’ invoices as they were submitted to the District informally. Id. at 12–14.
They ask that “[g]iven [p]laintiffs’ numerous concessions to their detriment, their inability to prove
a lack of payment, the inaccuracy of [d]efendant’s records, and [p]laintiffs’ counsel’s honesty and
fair-mindedness in these proceedings, . . . that in those instances where [counsel] has only been
able to make a ‘bare representation’ [that he has not been paid], credit be given for such.” Id. at
9.
Plaintiffs specifically dispute that certain fees have been paid in Abraham v. DC, No. 0127. In Abraham, a consent judgment for $2,500,000 in fees and costs was entered on June 17,
2005. Judge Harvey found that 187 HODs were at issue in this case so, pursuant to the $4,000

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statutory fee cap, $748,000 was due in fees. He then found that $497,922.75 had been paid to date,
and therefore that the remaining fees due totaled $250,007.25. He specifically found that the
following payments had been made with respect to the following individual plaintiffs:
Plaintiff
Downing, C.
Gray, Gr.
Parker, S.
Wood, Aa.

Payment Made
$12,000
$6,920
$4,000
$6,560

With respect to plaintiffs Downing and Gray, Judge Harvey found that the District’s
documentation reflected the above payments and that plaintiffs offered no evidence to contradict
the District’s prima facie showing. R&R Appendix nn. 6, 8. With respect to plaintiffs Parker and
Wood, Judge Harvey found that plaintiffs appeared to have made typographical errors in stating
the amounts they had been paid, and that they offered no evidence to contradict the District’s prima
facie showing of payment. Id. nn. 10, 13.
Plaintiffs, however, argue that they have only received payments in the following amounts:
Plaintiff
Downing, C.
Gray, Gr.
Parker, S.
Wood, Aa.

Payment Received
$8,300
$5,620
$35
$5,560

Therefore, plaintiffs represent that they have only received the payments listed above and argue
that they are due an additional $10,000.
Plaintiffs also dispute the fees paid in AC (Clark) v. DC, No. 06-cv-439. In AC (Clark), a
judgment for $333,613.19 in attorneys’ fees and costs was entered on December 15, 2009. Judge
Harvey found that 38 HODs were at issue, so, according to the statutory fee caps, plaintiffs were
entitled to $152,000 in attorneys’ fees and $1,835 in costs. Judge Harvey found that the District
had paid $127,257 in fees and $1,511 in costs, so the remaining fees due totaled $24,743, and the

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remaining costs due totaled $324. He specifically found that the following payments had been
made with respect to the following individual plaintiffs:
Plaintiff
Jackson, N.
Ward, R.
Watkins, M.

Payment Made (Fees)
$4,000
$4,000
$12,000

Payment Made (Costs)
$18
$111
$138

Plaintiffs argue, however, that they have no evidence of these payments and that they have
never conceded that payment of costs was made. Therefore, they argue that they are due the full
amounts listed above, totaling an additional $20,000 in fees and $267 in costs.
D.

Adams v. DC

In Adams v. DC, No. 03-cv-2139, two consent judgments were entered for $1,473,406 and
$25,360 for attorneys’ fees and costs on February 1, 2005 and July 28, 20015, respectively. After
finding that 141 HODs were at issue, Judge Harvey concluded that plaintiffs were due $564,000
in attorneys’ fees and $5,026 in costs. He concluded that $4,247 in costs had been paid. When
determining the amount of fees that had already been paid, Judge Harvey found that the two
consent judgements acknowledged payments of $364,087. Based on the evidence submitted to
him, however, Judge Harvey found that the sum of pre-judgment payments in Adams totaled
$569,194.05. After revising his calculations, Judge Harvey found that this sum equaled $517,503.
Plaintiffs’ objected and stated that they had received no post-judgment payments for fees in Adams,
and that Judge Harvey could not “go behind the [sacrosanct] judgment” and use payment figures
different from those in the judgment. Id. Plaintiffs thus argued that only the $364,087 listed in
the consent judgments “should be used to reduce the amount of the judgment for the purposes of
[Judge Harvey’s] calculation of the present value of those judgments” and that the court was “not
empowered to effectively amend the figures used in the consent judgment by crediting toward
those judgments payments which were not reflected in the negotiated payment amounts identified
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therein.” Id. at 26–27. The District argued that because Judge Harvey had found “that DCPS has
paid more in the Adams case than is stated in the consent judgment, [he] should set the $364,087
payment figure in the Adams consent judgments to the side as a mere mathematical error” and
“give [the District] credit for prejudgment payments it appears to have made, based on the [Judge
Harvey’s review of the record evidence.” Id. at 27.
Judge Harvey changed his decision and declined to give the District credit for the payments
it made, finding that “[w]hatever the reason for the decision to put the $364,087 figure in the
consent judgment—whether negotiation or mere accounting error—the undersigned cannot now
gainsay the parties’ decade-old agreement which was affirmed by this Court. Moreover, because
the undersigned cannot accurately date any of DCPS’ payments, it will not assume that any
payment in excess of the amount stated in the consent judgments are the result of post-judgment
payment.” Id. at 27. Supporting this conclusion was the fact that the District could provide no
evidence regarding the dates of payments (i.e., pre- or post-judgment), and to credit the District
for payments it appears to have made “would be to draw an unsupported inference in favor the
party who bears the burden of persuasion on this issue.” Id. at 28. Judge Harvey thus determined
it was appropriate to use the consent judgment figure of $364,087 in determining how much the
District had already paid in fees and costs. Therefore, Judge Harvey found that plaintiffs were due
$199,913 in fees ($564,000 - $364,087 = $199,913) and $779 in costs.
The District objects to Judge Harvey’s treatment of the Adams case. It argues that Judge
Harvey should credit the District the $569,194.05 in payments made—although the District fails
to acknowledge the corrected figure of $517,503—and therefore that the District paid plaintiffs an
excess of $205,107.05 in attorney’s fees ($569,194.05 - $364,087.00). Again, Judge Harvey found
that plaintiffs were due $564,000 under the fee caps. Thus, if the Court credits the District

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$569,194.05, it has overpaid by $5,194.05. If the Court credits the District $517,503, it still owes
plaintiffs $46,497 in fees and costs, as opposed to the $200,692 found by Judge Harvey. Plaintiffs
respond with the same argument above—that the District’s payment documentation is not reliable
evidence of payments made. Thus, because the $569,194.05 and $517,503 sums came from the
District’s payment documentation, plaintiffs argue that those sums are inaccurate, that they only
ever received payment of $364,087, and that they never received any payments post-judgment.
Plaintiffs also object to the Adams calculations on the grounds that although Judge Harvey
found that certain payments had been made with respect to specific plaintiffs, either those
payments were not made or were not made in the amounts determined by Judge Harvey. Judge
Harvey specifically found that the following payments had been made with respect to the following
individual plaintiffs:
Plaintiff
Boney, A.
Butler, R.
Curtis-Walker, R.
Hopkins, A.
Perkins, L.
Woodberry, J.
Woodberry, S.

Payment Made (Fees)
$6,122.50
$12,976.00
$7,902.75
$4,658.00
$7,228.25
$7,038.00
$8,179.25

Payment Made (Costs)
$0
$73
$60
$0
$0
$0
$356

Judge Harvey also found that, with respect to plaintiff Wheeler, W., there were four HODs at issue,
for a fee cap of $16,000. He stated that in the parties’ joint report, plaintiffs asserted that there
were six HODs at issue, but that the District’s documentation reflected only four. Because
plaintiffs offered no evidence to contradict the District’s prima facie showing on the number of
HODs, Judge Harvey used the District’s figure.

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Judge Harvey received evidence from the District that it had paid $8,214.25, which is greater than the fees due plus
costs due sum calculated by Judge Harvey: $8,000 (fees) + $35 (costs) = $8,035. Because there was no basis on which
to apportion the payment between fees and costs, Judge Harvey credited $35 towards the costs paid, and the remainder,
$8,179.25, towards fees paid.

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Plaintiffs argue, however, that there is either no evidence of payments for these plaintiffs
or that they have only received payments in the following amounts:
Plaintiff
Boney, A.
Butler, R.
Curtis-Walker, R.
Hopkins, A.
Perkins, L.
Woodberry, J.
Woodberry, S.

Payment Received (Fees)
$0
$8,000
$0
$0
$0
$4,015
$4,030

Payment Received (Costs)
$0
$0
$0
$0
$0
$0
$0

With respect to plaintiff Wheeler, W., plaintiffs argue that, in the Joint Report, they stated that
there were five HODs at issue, not six, and that “[d]ue to a copying error, only the front page of
the additional HOD was included in the evidentiary packet of HODs. However, at the time the
District’s own attorneys defended the case, the District’s own hearing officers heard and decided
the case, and the District’s own Student Hearing Office conducted the hearing. All of the foregoing
had or should have the original or copy of each HOD.” Pls.’ Objections at 12. Plaintiffs therefore
argue that “it is disingenuous for the District to now claim surprise or deny that there was an HOD.
As such, there should be an additional HOD for this plaintiff, for a total of five, and an additional
$4,000 owed.” Id. In sum, plaintiffs argue that they are owed an additional $42,094.75 in fees
and $133 in costs.
E.

Bradley v. DC

When considering the Bradley case, Judge Harvey found that although plaintiffs asserted
that there were six HODs at issue, Magistrate Judge Kay had previously indicated that only one
HOD formed the basis of the Bradley suit. See R&R Appendix n. 97 (citing Bradley Oct. 9, 2001
Mem. Op. [ECF No. 47] at 2). Judge Harvey found that plaintiffs failed to object to Judge Kay’s
opinion and therefore waived the ability to challenge the factual finding that only one HOD was
at issue. Plaintiffs argue that no waiver occurred because “the number of HODs was never
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contemplated to be an issue at the time of the settlement negotiations and when [Judge Kay] issued
the final judgment and order.    The calculation per HOD was not an issue during those
negotiations.” Pls.’ Objections at 14. Plaintiffs state they the six HODs were provided to Judge
Harvey during the evidentiary hearing, and that pursuant to the fee caps, the District therefore owes
$24,000 in fees. The District has failed to respond to plaintiffs’ objection and makes no argument
with respect to waiver in Bradley.
F.

Interest

The parties also dispute the interest due in each case. Again, Judge Harvey calculated the
interest based on the full judgments in each case,7 not on the fees available under the $4,000
statutory caps. Plaintiffs argue Judge Harvey was correct to calculate interest based on the full
judgments, i.e., that they are entitled to post-judgment interest on the full amounts of the
judgments, not only on the amount owed under the $4,000 fee cap. The District argues that it owes
interest only on the amount owed under the $4,000 fee cap, not on the full amounts of the
judgments (as reflected in Judge Harvey’s Judgements Chart).
Plaintiffs also object, however, to several aspects of Judge Harvey’s interest analysis. First,
plaintiffs object to Judge Harvey’s treatment of undated payments. Judge Harvey found that the
District had made undated payments in several of the cases, and offered no evidence showing the
date of any payment. See R&R Appendix at 22 n.108. In calculating interest due, he listed such
payments as made post-judgment, and “calculate[d] the interest based on the original principal and
then subtract[ed] the amount of the payment from that figure.” Id. He found that the following
post-judgment payments had been made: $11,973.50 in Allen; $13,596.50 in Isaac; $16,568 in

7
Where pre-judgment payments were made, Judge Harvey subtracted those payments from the total judgment amount
and calculated interest based on the resulting number.

15

Jones; $2,540 in McDowell; and $10,708 in Thomas. Id. at 23–24 nn. 113–17. Plaintiffs claim
that defendants have falsely claimed that they made post-judgment payments on outstanding
judgments, that plaintiffs’ counsel has never received any post-judgment payment (except $313 in
Thomas) and that Judge Harvey erred by finding that a number of payments made by the District
were post-judgment. Pls.’ Objections at 2–3. Plaintiffs have recalculated the amounts at issue by
calculating interest based on the full judgment, but, unlike Judge Harvey, have not subtracted out
any post-judgment payments made to arrive at the balance due. Id. Plaintiffs also take issue with
defendants’ claims of making post-judgment payments in two additional objections. First, they
argue that communications between counsel show that the District made no post-judgment
payments. Id. at 15–17. Second, plaintiffs argue that the language contained in the consent
judgments shows that post-judgment payments were not made. Id. at 17–18.
Plaintiffs further object to the interest rates used by Judge Harvey in certain cases in
calculating interest due. They are as follows: 3.30% in Abraham; 0.37% in AC (Clark); 2.89% in
Adams; and 2.06% in Wingfield. Plaintiff state that the following interest rates should have been
used: 3.39% in Abraham; 0.32% in AC (Clark); 2.95% in Adams; and 4.00% in Wingfield.
Plaintiffs state that they have recalculated the interest due using the National Cyber Services PostJudgment Interest Calculator (http://postjudgmentinterest.com/), and ask their calculations be
used.
Finally, the parties disagree regarding whether interest has stopped accruing and, if so, the
date on which it stopped. As explained below, the District submitted a payment of $427,103.76
to plaintiffs on January 31, 2017, which the District states represents the fees, costs, and interest
owed to plaintiffs based on Judge Harvey’s Report and Recommendation. The District argues that
it only owes interest up to November 9, 2016, the date on which the $427,103.76 payment was

16

submitted for processing.

The District contends that “[p]ayment of funds was delayed to

accommodate Plaintiffs’ Counsel, who requested payment after January 1, 2017, for tax purposes.”
Def.s’ Response to Court’s May 22, 2017 Order at 2, ECF No. 113. Because plaintiffs have lodged
the above-described objections with respect to fees and costs, and also lodge the aforementioned
interest-based objections, they argue that they have not been paid in full. Given that plaintiffs
argue that they have not been paid the full fees or interest due, they argue that they are entitled to
interest accrued to date.
G.

Parties’ Calculations

After the parties lodged their objections to the Report and Recommendation, on January
31, 2017, the District submitted a notice of payment to plaintiffs’ counsel of $427,103.76 reflecting
“the undisputed amount of attorney’s fees owed to Plaintiff, including interest, based on the
Magistrate Court’s Report and Recommendation.” Def.s’ Notice of Payment at 1, ECF No. 106.
After considering the parties’ objections and the notice of payment, which did not explain the
amounts paid in each case and did not explain the sums paid in fees vs. costs vs. interest, this Court
found it necessary to seek further clarification. On May 3, 2017, it ordered the parties to submit
reports explaining how much the District paid in outstanding fees, costs, and interest in each case,
and the amounts still in dispute. On May 22, 2017, it ordered the parties to submit reports detailing
the amount of interest ordered to be paid in each case, the amount of interest that has accrued since
October 1, 2015, the interest rates used, the total interest due, the amount of interest paid to date,
and the amount of interest still due.

17

The District submitted the following:
Case

Abraham v. DC ,
01-27
AC (Clark) v. DC ,
06-439
Adams v. DC , 032139
Allen v. DC , 00591
Bradley v. DC , 993188
Isaac v. DC , 00122
Jones v. DC , 00593
McDowell v. DC ,
00-594
Thomas v. DC , 031791
Wingfield v. DC ,
00-121
Totals

Interest Interest Paid
Fees Due
Fees Paid
Costs Due Costs Paid
Interest
(After R&R) (Since R&R) (After R&R) (Since
Ordered as of Accrued
10/2/2015 –
R&R)
10/1/2015
11/9/2016
(R&R)
$250,077.25

$250,077.25

$0

$0

$84,967.34

$9,156.94

$94,124.28

$0

$24,743.00

$24,743.00

$324

$324

$537.68

$102.92

$640.60

$0

$199,913.00

$0

$779

$0

$61,877.25

$9,550.13

$0

$200,692.00

$0

$0

$0

$0

$0

$0

$0

$0

$4,000.00

$4,000.00

$104.22

$104.22

$1,377.67

$109.30

$1,486.97

$0

$2,403.50

$2,403.50

$289.00

$289.00

$1,309.13

$103.07

$1,412.20

$0

$0

$0

$0

$0

$0

$0

$0

$0

$13,500.00

$13,500.00

$294.50

$294.50

$7,316.15

$566.33

$7,882.48

$0

$13,292.00

$13,292.00

$408.00

$408.00

$5,764.12

$749.42

$6,513.54

$0

$4,000.00

$4,000.00

$245.00

$245.00

$1,266.18

$97.04

$1,363.22

$0

$511,928.75

$312,015.75

$2,443.72

$1,664.72

$164,415.52

$20,435.15

$113,423.29

$200,692.00

18

Amount in
Dispute

Plaintiffs submitted the following:
Case

Fees Due
(After
R&R)

Fees Paid
(Since
R&R)

Abraham v.
DC , 01-27
AC (Clark)
v. DC , 06439

$260,077.25

$250,077.25

$0

$0

$794,496.76

$822,781.00

$113,819.00

$94,124.28

$10,000.00

$839,805.00

$44,743.00

$24,743.00

$591

$324

$4,462.82

$3,857.83

$1,090.00

$640.60

$20,267.00

$4,282.00

Adams v.
$242,007.75
DC , 03-2139

$0

$912

$0

$402,942.82

$412,779.72

$55,848.00

$0

$242,919.75

$466,762.00

Allen v. DC ,
00-591

$0

$0

$0

$0

$15,784.65

$27,778.20

$2,515

$0

$0

$30,293.00

Bradley v.
DC , 99-3188

$24,000

$4,000.00

$104.22

$104.22

$21,039.54

$21,053.90

$2,138.00

$1,486.97

$20,000.00

$21,644.00

$2,403.50

$2,403.50

$289.00

$289.00

$13,263.73

$26,879.59

$2,529.00

$1,412.20

$0

$27,967.00

$0

$0

$0

$0

$31,430.59

$48,033.29

$4,350

$0

$0

$52,383.00

$13,500.00

$13,500.00

$294.50

$294.50

$34,531.54

$37,098.31

$3,359.00

$7,882.48

$0

$32,415.00

Thomas v.
DC , 03-1791

$13,292.00

$13,292.00

$408.00

$408.00

$3,644.00

$18,429.67

$3,005.00

$6,513.54

$0

$14,709.00

Wingfield v.
DC , 00-121

$4,000.00

$4,000.00

$245.00

$245.00

$12,802.13

$28,523.14

$2,498.00

$1,363.22

$0

$29,605.00

$312,015.75 $2,843.72 $1,664.72

$1,334,398.58

$1,447,214.65

Isaac v.
DC , 00-122
Jones v.
DC , 00-593
McDowell
v. DC , 00594

Totals

$604,023.50

Costs
Due
(After
R&R)

Costs
Paid
(Since
R&R)

Interest
Ps Interest
Ordered as of Calculated as
10/1/2015
of 10/1/2015
(R&R)

Interest
Accrued
10/1/2015 5/25/2017

Interest
Paid

$191,151.00 $113,423.29

Outstanding Outstanding
Fees/Costs Interest in
in Dispute
Dispute

$293,186.75 $1,519,865.00

As these charts show, there is no dispute with respect to fees or costs still due in Allen,
Isaac, Jones, McDowell, Thomas, or Wingfield. Disputes regarding fees due remain in Abraham
and Bradley, and disputes regarding both fees and costs due remain in AC (Clark) and Adams.
Disputes regarding interest due exist in every case.
III.

LEGAL STANDARD
“A district judge shall make a de novo determination of those portions of a magistrate

judge’s findings and recommendations to which objection is made.” LCvR 72.3(c). “A district
judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the
magistrate judge, or may recommit the matter to the magistrate judge with instructions.” Id.

19

IV.

ANALYSIS
Based on the foregoing, this Court must determine the following: 1) how to treat the

District’s evidence of payment and whether to accept plaintiffs’ representations that they have not
been paid (and therefore calculate the appropriate fees due in Abraham, AC (Clark), and Adams);
2) whether and how much to credit the District for payment in Adams and thus how much the
District still owes; 3) whether plaintiffs have waived their objections with respect to Bradley and
whether they are due any additional fees; 4) the appropriate interest due in each case. With respect
to interest specifically, this Court must determine: 1) whether interest should be calculated based
on the full judgment or the amount due pursuant to the fee caps; 2) whether to accept Judge
Harvey’s treatment of undated payments; 3) the appropriate interest rates to use in calculating
interest; and 4) the date on which interest stops accruing. The Court takes each in turn.
A.

Evidence of Payment

The Court first adopts Judge Harvey’s analysis regarding burdens of proof concerning
enforcement of judgments. See R&R at 6–7. According to this burden-shifting framework,
“plaintiffs bear the initial burden to prove the amounts of the judgments they seek to enforce, . . .
[i.e.,] the burden to prove the number of [HODs]. . . . Defendant bears the burden to prove facts
regarding payments it claims to have made, including the amount and date of any alleged payment.
If [d]efendant comes forward with evidence of payment, the burden shifts back to [p]laintiffs to
prove that payment did not occur.” Id. (citing 50 C.J.S. Judgments §§ 882, 883; Norwest Bank
Neb., N.A. v. Philips Realty Co., 594 N.W.2d 3, 9 (Iowa 1999); Steckler v. Steckler, 293 S.W.2d
129, 135 (Mo. Ct. App. 1956); Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir.
1995)).

20

As explained above, Judge Harvey relied largely on the District’s payment documentation,
which constitutes prima facie evidence of payment. Id. at 18. Even given certain reliability issues,
Judge Harvey found that the District’s “documentation represents the most comprehensive
contemporaneous analysis of the amounts owed and paid for each plaintiff in these cases.” Id.
Importantly, plaintiffs “offer[ed] nothing to supplant [the District’s documentation] other than
their representations as to what they have been paid.” Id. Furthermore, Judge Harvey found that
plaintiffs’ “payment recordkeeping is unreliable by comparison, thereby undermining [p]laintiffs’
ability to challenge [d]efendant’s records with their own.” Id. at 20. To explain, plaintiffs’ counsel
was paid in one large check for fees relating to services provided to several different children,
which he then attempted to parse how much of each check was attributable to each child, a difficult,
confusing, and sometimes inexact process. Id. Plaintiffs’ counsel also “could not accurately
describe the process he used to search his records in preparation for the evidentiary hearing,” and
such records were not kept in any easily searchable electronic database. Id. Thus “[p]laintiffs’
recordkeeping system made it almost impossible to be sure that the correct payment amounts were
attributed to each child and, even assuming they were, that a portion of the amount attributed to a
particular child could then be meaningfully attributed to one or more of the HODs at issue in this
case, since many of these children had many other HODs not presented in these eleven
consolidated cases.” Id.
As they did before Judge Harvey, plaintiffs object again to the reliance on the District’s
payment documentation as prima facie evidence of payment, arguing that it is inaccurate and that
plaintiffs have never vouched for its accuracy. Pls.’ Objections at 3–4. Plaintiffs argue that the
District has only presented evidence of intent to pay and that the only reliable evidence the District
can provide is post-payment evidence, which no longer exists. Id. at 5. Plaintiffs also argue that

21

they are not simply relying on their own representations, but that in several instances plaintiffs
provided invoices to the court. Id. at 6. Plaintiffs have invoices for Jackson, N. (AC (Clark)),
Ward. R. (AC (Clark)), Watkins, M. (AC (Clark)), Boney, A. (Adams), Curtis-Walker, R. (Adams),
Perkins, L. (Adams), and Hopkins, A. (Adams). Plaintiffs complain that Judge Harvey “applie[d]
a double standard to [p]laintiffs’ evidence as compared to [d]efendant’s by stating that the invoices
provided by [p]laintiffs ‘do not bear on the question of how much had actually been paid in a given
case, only that a particular amount had been billed,’ while stating in the body of the following page
that [d]efendant’s ‘documents indicate that a payment has been “approved” for a certain amount .
. . . [and] that they constitute prima facie evidence of actual payment.’” Id. at 7. Plaintiffs thus
conclude that “[i]t is impossible for [p]laintiffs to prove that [d]efendant never paid, beyond a ‘bare
representation,’ and that “[w]here Defendant has asked for invoices, [p]laintiffs have provided
them.” Id. at 8.
The Court overrules plaintiffs’ objections and accepts and adopts Judge Harvey’s treatment
of the evidence in this case. It should be noted again the evidentiary difficulties in this case. Many
of the consolidated cases were filed seventeen years ago, and the most recent was filed eleven
years ago. The judgments are nearly as old. Neither party kept attorneys’ fees records in a manner
that allows the Court to easily make the calculations at issue, and the evidence presented to Judge
Harvey was often incomplete, unreliable, and less than crystal clear. All of the arguments
regarding evidence now raised by plaintiffs were also raised to and rejected by Judge Harvey. As
Judge Harvey noted, he was forced to rely on “logic and fairness and a concerted effort to make
sense of a confused and incomplete record.” R&R at 6. Deploying those same principles, the
Court agrees with Judge Harvey’s findings. First, the Court concludes that the District’s evidence
does constitute prima facie evidence of payment given the lack of available evidence. As Judge

22

Harvey noted, “these documents were generated based on a prepayment process used by the
District to receive IDEA attorney’s fee invoices, review them, and then pay them to the extent
allowed by law. The system was directed at actually paying invoices contemporaneous to when
they were received and was not created for the purpose of litigation. Plaintiffs offered no evidence
that Defendant’s system of processing fee invoices was inherently unreliable.” R&R at 19–20.
The District’s payment documentation is not perfect evidence of payment. But, given the serious
evidentiary difficulties in these cases, it is “the most comprehensive contemporaneous analysis of
the amounts owed and paid for each plaintiff in these cases.” R&R at 18. Furthermore, plaintiffs
have not presented new evidence to this Court that shows that these documents are unreliable.
Plaintiffs have generally offered two categories of rebuttal evidence to show lack of
payment or underpayment. First, they offer plaintiffs’ counsel’s mere representations that he has
not received payments or has received payments in a different amount than the District claims.
The court does not question plaintiffs’ counsel’s honesty and integrity, but it cannot accept
representations of nonpayment or underpayment as evidence of such nonpayment or underpayment
where plaintiffs have not offered logs, receipts, or actual evidence aside from the invoices
described below.
Second, plaintiffs argue that they have provided fee invoices that indicate that they billed
the District for a certain child’s fees to rebut the District’s evidence of payment. Again, however,
this Court concurs with Judge Harvey that the invoices “do not bear on the question of how much
had actually been paid in a given case, only that a particular amount had been billed.” R&R at 18
n.15. Therefore, given that the Court has determined that the District’s payment documentation
constitutes prima facie evidence of payment, the burden shifted back to plaintiffs and they failed
to sufficiently rebut evidence of payment.

23

This analysis is also relevant to plaintiffs’ arguments regarding post-judgment payments.
Plaintiffs again argue that they received no post-judgment payments. Again, plaintiffs’ counsel
represents to the Court that he did not receive these payments and asks the Court to credit those
representations. As explained above, the Court cannot do so. The Court further agrees that Judge
Harvey’s treatment of undated payments. When calculating the interest due, Judge Harvey
“calculate[d] interest based on the original principal and then subtract[ed] the amount of the
payment from that figure.” R&R Appendix n.8. Judge Harvey could have assumed that the
payments were made immediately upon judgment and calculated interest based on the judgment
amount minus the payments made, which would have been more favorable to the District. He did
not do so, thus resulting in higher interest amounts for plaintiffs. The Court finds that Judge
Harvey took the most equitable approach. Given that plaintiffs were unable to rebut the District’s
payment evidence, but also considering that such payments were undated, the Court finds that
Judge Harvey’s treatment of those payments was fair.
B.

Adams v. DC

The District has raised just one objection to Judge Harvey’s Report and Recommendation.
It argues that it should be credited $569,194.05 for payments made in the Adams case. Again, this
argument was made before Judge Harvey and was rejected. This Court agrees with Judge Harvey.
The discrepancy in the payments identified by Judge Harvey and the pre-judgment payment
amount specified in the consent judgments was due to settlement negotiations preceding the entry
of the consent judgments where “both p[laintiffs and [d]efendant gave ground.” R&R at 26. In
those negotiations, “just as [p]laintiffs accepted a lower fee amount than what was invoiced,
[d]efendant accepted a lower figure for the amount it had previously paid—likely because the
evidence of those payments was hardly better than it is today.” Id. at 27. This Court agrees that

24

given the inability to determine the reason for the lower figure in the consent judgment ($364,087)
and the inability to date the District’s payments, “it will not assume any payment in excess of the
amount stated in the consent judgments are the result of post-judgment payment,” and it “cannot
now gainsay the parties’ decade-old agreement which was affirmed by this Court.” Id. at 27–28.
The Court also rejects the District’s argument raised in its objections that by not crediting
the District for these payments, plaintiffs’ counsel is receiving a windfall. The Supreme Court has
cautioned that an award of reasonable attorneys’ fees should not produce windfalls to attorneys.
See Blum v. Stenson, 465 U.S. 886, 894 (1984). That danger, however, is not present here.
Plaintiffs’ counsel has had his fees diminished not only by the statutory fee caps in place during
the years that he completed work on these cases, but also during negotiations with the District. In
Adams alone, plaintiffs’ counsel conceded and gave up $631,460.00. See Pls.’ Objections at 18.
Furthermore, even though the consent judgments in Adams totaled $1,498,786, plaintiffs’ counsel
was only able to recover $564,000 pursuant to the fee caps. Therefore, the Court finds that
plaintiffs’ counsel would not receive a windfall if the Court refuses to credit the District the full
$569,194.05.
In addition, the Court finds unpersuasive the District’s reliance on the following statement
by the Supreme Court:
In many cases, attorney’s fees . . . are not paid by the individuals responsible for the
constitutional or statutory violations on which the judgment is based. Instead, the fees are
paid in effect by state and local taxpayers, and because state and local governments have
limited budgets, money that is used to pay attorney’s fees is money that cannot be used for
programs that provide vital public services.
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 559 (2010). As explained by plaintiffs, because
the District of Columbia’s budget is controlled by the United States Congress, “[t[he federal
government is appropriating the money to pay [p]laintiffs’ counsel’s fees, not the D.C. Council or
any local government agency.”

Pls.’ Response to Def.’s Objections at 6, ECF No. 101.
25

Furthermore, “the District’s litigation budget is separate from its education budget. See D.C. Act
21-148, Fiscal Year 2016 Budget Support Act of 2015, 62/34 D.C. Reg. 01095 (Aug. 14, 2015)
(enacting the fiscal year 2016 budget for the District of Columbia and separating the education and
litigation budgets). The money that is used to pay its litigation expenses is separate from the
money that is used for education.” Id. at 7. Due to both of these considerations, there is no danger
that the money that the District must pay for fees in these cases will be taken from or unavailable
for use “for programs that provide vital public services.” Perdue, 559 U.S. at 559. Thus, the Court
overrules the District’s objection and adopts Judge Harvey’s Report and Recommendation with
respect to Adams.8
C.

Bradley v. DC

In Bradley v. DC, No. 99-cv-3188, Magistrate Judge Kay issued an opinion granting in part
and denying in part plaintiffs’ motion for attorney’s fees. See Memorandum Opinion, Bradley v.
District of Columbia (No. 99-cv-3188), ECF No. 47. In the factual background of that opinion,
Judge Kay describes a HOD after a hearing held on September 22, 1999 regarding DCPS’s
obligation to pay for the child’s schooling. Id. at 2. After finding that plaintiffs were the prevailing
parties, Judge Kay discussed the inapplicability of the fee caps. Id. at 9–10. He found, pursuant
to Calloway, et al. v. District of Columbia, 216 F. 3d l (D.C. Cir. 2000), “that the Congressionally
mandated fee cap does not limit this Court’s authority to award attorney’s fees in excess of the
cap.” Id. at 9. Judge Kay then proceeded to calculate the reasonable attorneys’ fees due based on
the applicable rates and the number of hours billed. Id. at 11–17. As explained above, even though

8

The Court also overrules plaintiffs’ objections with regard to plaintiff Wheeler in Adams. In their objections,
plaintiffs assert that there were five HODs at issue, not four as found by Judge Harvey, and due to a copying error,
only the front page of the fifth HOD was included in the evidentiary packet. Nonetheless, the transcript of the
evidentiary hearing shows that Judge Harvey was unable to conclude—based on only the front page—that plaintiffs
had prevailed in this HOD. See Sept. 7, 2016 Hearing Transcript at 58:6–60:17, ECF No. 97. In their objections,
plaintiffs do not state that they prevailed on this HOD, nor do they provide evidence that they prevailed. Therefore,
the Court finds that plaintiffs are not due an additional $4,000 for this fifth HOD.

26

plaintiffs asserted that there were six HODs with respect to Bradley, Judge Harvey found that
because plaintiffs failed to object to Judge Kay’s opinion, they waived the ability to challenge the
finding that there was only one HOD at issue.
This Court disagrees. Although Judge Kay discussed a specific HOD in the factual
background of his opinion, the specific issue of the number of HODs was not contemplated by
Judge Kay. As noted above, he found that he was not bound by the fee caps in determining the
proper fee award, and he calculated fees based on lodestar number of number of hour multiplied
by reasonable rates. He did not calculate fees due based on number of HODs multiplied by fee
cap, which is the calculation at issue here. Furthermore, the Court notes that plaintiffs here have
specifically objected to Judge Harvey’s finding of waiver. The District, however, has completely
failed to respond to plaintiffs’ argument. Because the issue of number of HODs was not present
before Judge Kay, and because the District has failed to argue that Judge Harvey’s finding of
waiver was proper, this Court finds that Judge Harvey erred in finding waiver, that plaintiffs did
not waive this argument, and that plaintiffs are entitled to fees for the six HODs present in
Bradley—$24,000.
D.

Interest

The Court first determines that Judge Harvey correctly calculated interest based on the full
attorneys’ fees judgments in each case, as opposed to the fee award under the statutory fee caps.
The District’s current position regarding interest due—that it only owes interest on the amount of
the judgments that it may pay under the fee caps—appears to be a new one. The District’s position
before Judge Harvey was that interest should be calculated from the date that the 2009 fee cap was
enacted, not from the date of judgment. This Court concurs with Judge Harvey’s decision to reject
that argument as the statute precisely states that “interest shall be calculated from the date of the

27

entry of the judgment.” 28 U.S.C. § 1961(a). Furthermore, the District’s current argument does
not appear in its objections to the Report and Recommendation or in its opposition to plaintiffs’
objections. In fact, the District does not mention interest at all. The District’s current argument
only came to this Court’s attention on June 1, 2017, after this Court twice asked the parties to
clarify their positions regarding the amounts still due after partial payment in January 2017. Under
Local Rule 72.3(b), parties may file written objections to a magistrate judge’s report and
recommendation within fourteen days, which must “specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for the
objection.” LCvR 72.3(b). Failure to do so “may waive appellate review of a District Court order
adopting the magistrate judge’s report.” Id. The District failed to timely object to this portion of
Judge Harvey’s Report and Recommendation.
Furthermore, nothing in the statute indicates that judgment should be calculated based on
anything other than the full judgment amounts. The statute provides that “[i]nterest shall be
allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a).
This Court previously stated that that “[p]ost-judgment interest is appropriate when a district court
enters a judgment awarding reasonable attorneys’ fees under IDEA,” and that “[p]laintiffs are
entitled to post-judgment interest calculated at the statutory rate on each award under 28 U.S.C. §
1961(a).” See Aug. 18, 2015 Mem. Op. at 14–15. In support of their argument, the District only
cites to an 1872 Supreme Court opinion stating that “[a]s a general rule it may safely be laid down
that wherever the law prohibits payment of the principal, interest during the existence of the
prohibition is not demandable.” Brown v. Hiatts, 82 U.S. 177, 185 (1872). This case concerned
contracts during the Civil War, where “[a]s the enforcement of contracts between enemies made
before the war is suspended during the war, the running of interest thereon during such suspension

28

ceases.” Id. Payment of the principal in these cases was never suspended. Brown is unpersuasive
authority. Therefore, the Court finds that Judge Harvey correctly calculated interest based on the
full judgment amounts and that the District waived its objections thereto.
Having concluded that interest should be calculated based on the amounts of the full
judgments, the Court again reiterates its concurrence with Judge Harvey’s treatment of undated
payments with respect to interest due. Again, plaintiffs argue that they received no post-judgment
payments and that Judge Harvey erred by calculating interest based on the original principal and
then subtracting out post-judgment payment amounts. As explained above, this Court agrees that
plaintiffs failed to overcome the District’s evidence of payments made and that Judge Harvey’s
approach is the most equitable given the fact that the District’s payments were undated.
Plaintiffs next dispute the interest rates used by Judge Harvey in calculating interest in
Abraham, AC (Clark), Adams, and Wingfield. Under 28 U.S.C. § 1961 “interest shall be calculated
from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant
maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding [] the date of the judgment.” 28 U.S.C. § 1961(a). It “shall be
computed daily to the date of payment . . . and shall be compounded annually.” Id. § 1961(b).
Judge Harvey used the following rates: 3.30% in Abraham; 0.37% in AC (Clark); 2.89%
in Adams; and 2.06% in Wingfield. Plaintiffs argue that he should have used the following rates:
3.39% in Abraham; 0.32% in AC (Clark); 2.95% in Adams; and 4.00% in Wingfield. This Court
has examined the rates published by the Board of Governors of the Federal Reserve System
(historic rates available at https://www.federalreserve.gov/datadownload/Choose.aspx?rel=H15)
and concurs in part with the rates used by Judge Harvey. As stated by the statute, the proper rate
to be used is the rate “for the calendar week preceding the date of the judgment.” Id. § 1961(a).

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It appears that in Abraham and Adams, plaintiffs are advocating for the use of the rates for the
week of the judgments. In Abraham, the rate for the week of the judgment entered on June 17,
2005 was 3.39%, but the rate for the week preceding June 17, 2005 was 3.30%. In Adams, the rate
for the week of the judgment entered on February 1, 2005 was 2.95%, but the rate for the week
preceding February 1, 2005 was 2.89%. Thus, Judge Harvey used the correct rates in Abraham
and Adams and this Court overrules plaintiffs’ objections regarding interest rates in these cases.
With respect to Wingfield and AC (Clark), however, the Court agrees that plaintiffs’
proffered rates are correct. In AC (Clark), the proper interest rate is 0.32%, which was the interest
rate for the week preceding the date of the judgment on December 15, 2009, not the 0.37% rate
used by Judge Harvey. And in Wingfield, the proper interest rate is 4.00%, which was the interest
rate for week preceding the date of the judgment on April 12, 2001, not the 2.06% rate used by
Judge Harvey.
Finally, the parties disagree regarding whether interest has stopped accruing and if so, the
date at which it stopped. The District argues that it has paid in full except in the Adams case, and
that interest has therefore stopped accruing on the judgments in the other cases. It argues
specifically that interest stopped accruing on November 9, 2016, the date on which the
$427,103.76 payment was submitted for processing.

Plaintiffs argue that because of the

aforementioned objections, the District has not paid in full what it actually owes and therefore that
interest continues to accrue. The Court concludes that interest in Abraham, AC (Clark), Adams,
Allen, Isaac, Jones, McDowell, Thomas, and Wingfield stopped accruing on November 9, 2016.
When the District notified plaintiffs’ counsel in November of 2016 that it was processing the
$427,103.76 payment, plaintiffs’ counsel requested that the payment be made after January 1, 2017
for income tax purposes. The District obliged. It would inequitable to now essentially penalize

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the District for acquiescing to plaintiffs’ counsel’s wishes. With respect to Adams, however, the
District has made no payments, so interest has continued to accrue. Finally, with respect to
Bradley, this Court has found that plaintiffs are due an additional $20,000 not paid. Giving the
District time to process and make payments to plaintiffs, the Court concludes that interest shall
stop accruing in Adams and Bradley on July 15, 2017, thirty days from entry of this Opinion.
The Court summarizes its findings regarding interest in the following chart:
Case

Date of
Judgment

Date of
Remaining
Interest
Accrual Balance Due on Rate
Judgment

Abraham v.
6/17/2005 11/9/2016 $2,002,077.25
DC , 01-27
AC (Clark) 12/15/2009 11/9/2016
$206,356.19
v. DC , 06439
Adams v.
2/1/2005 7/15/2017
$1,134,699
DC , 03-2139 7/28/2005 7/15/2017
$0
Allen v. DC ,
6/4/2001 11/9/2016
$40,635.50
00-591
Bradley v.
10/9/2001 7/15/2017
$53,524.75
DC , 99-3188
Isaac v. DC , 8/31/2001 11/9/2016
$43,854.00
00-122
Jones v. DC ,
6/4/2001 11/9/2016
$70,265.75
00-593
McDowell v.
6/4/2001 11/9/2016
$54,269.50
DC , 00-594
Thomas v.
3/22/2007 11/9/2016
$28,258.00
DC , 03-1791
Wingfield v.
4/12/2001 11/9/2016
$37,291.25
DC , 00-121

Interest Due Post-Judgment
Payments

3.30%

$897,280.18

$0

Total Due
(After PostJudgment
Payments)
$897,280.18

Interest
Paid (To
Date)

Remaining
Due

$94,124.28

$803,155.90

0.32%

$4,604.20

$0

$4,604.20

$640.60

$3,963.60

2.89%
3.68%
3.70%

$483,454.91
$0.00
$30,582.56

$0
$0
$11,973.50

$483,454.91
$0.00
$18,609.06

$0
$0
$0

$483,454.91
$0
$18,609.06

2.40%

$24,286.07

$0

$24,286.07

$1,486.97

$22,799.10

3.45%

$29,589.45

$13,596.50

$15,992.95

$1,412.20

$14,580.75

3.70%

$52,882.49

$16,568

$36,314.49

$0

$36,314.49

3.70%

$40,843.60

$2,540

$38,303.60

$7,882.48

$30,421.12

4.93%

$16,688.35

$10,708

$5,980.35

$6,513.54

4.00%

$31,437.80

$0

$31,437.80

$1,363.22

($533.19)
$30,074.58

As the above chart shows, the District still owes significant sums of interest in each case except
Thomas. Although the interest calculated as due as of October 1, 2015 in Thomas by Judge Harvey
totaled $3,644.43, the District has reported that it has since paid a total of $6,513.54. Even after
including the interest accrued from October 1, 2015 until November 9, 2016, this sum equals
$5,980.35. Thus, the District has overpaid by $533.19. In an effort to preserve appropriate records
in each case, this Court will order plaintiffs to return the $533.19 rather than deduct that amount
from another case where full payments have not yet been made.

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V.

CONCLUSION
For the foregoing reasons, this Court will accept and adopt in part, modify in part, and

reject in part Judge Harvey’s Report and Recommendation. Specifically, the Court will accept
and adopt Judge Harvey’s analyses and conclusions regarding evidence of payments and payments
made in Adams v. DC. The Court will reject Judge Harvey’s finding of waiver in Bradley. The
Court will accept and adopt Judge Harvey’s findings with respect to interest calculations, his
treatment of undated post-judgment payments, and the interest rates used in each case except
Wingfield and AC (Clark). The Court will modify the interest rates used in Wingfield and AC
(Clark). Finally, the Court finds that interest shall stop accruing in Adams and Bradley on July 15,
2017, but that interest stopped accruing in every other case on November 9, 2016, because that is
the date on which the $427,103.76 payment was submitted for processing, even though it was
delayed at plaintiffs’ counsel’s request until January 2017.

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