R.L. et al v. Miami-Dade County School Board
Filing
226
ORDER granting in part and denying in part 195 Motion for Attorney Fees. Signed by Magistrate Judge Barry L. Garber on 4/26/2012. (cc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 07-20321-CIV-LENARD/GARBER
R.L. and S.L., individually and on behalf
of O.L., a minor,
Plaintiffs,
v.
MIAMI-DADE COUNTY SCHOOL BOARD,
Defendant.
____________________________________/
ORDER
THIS CAUSE is before the Court by Order of Reference of United States District Judge Joan
A. Lenard. Pursuant to such reference, the Court has received the plaintiff parents’ Motion for
Attorneys’ Fees and Costs (DE 195); the defendant school board’s response (DE 201); and the
parents’ reply thereto (DE 204). The Court hereby GRANTS the parents’ motion, subject, however,
to certain reductions as further explained below.
I.
Background
The school board, on October 5, 2006, filed a request for an administrative due process
hearing for a determination of whether an Individualized Education Plan (“IEP”) developed in May
2006 provided R.L. and S.L.’s son, O.L., a free appropriate public education under the Individuals
with Disabilities Education Act (“IDEA”). (ALJ’s Final Order, DE 1-1, 2.) In addition to a response
to the school board’s petition, the parents also filed their own counter-petition, claiming that the
school board failed to provide a free appropriate public education to O.L. (Id. at 4.) Among the
parents’ complaints were that Palmetto Senior High School was not an appropriate placement for
O.L., (Id. at 91), and that the school board violated a number of substantive and procedural
requirements, (Id. at 47-48, 50-51). One of he parents’ main contentions, however, as articulated by
the administrative law judge, was that O.L. should be placed at MAST Academy. (Id. at 89).
Based on the evidence presented to him, the administrative law judge determined that the IEP
indeed failed to adequately address O.L.’s needs but with respect to only two discreet substantive
issues: O.L.’s susceptibility to stress and sensory overload; and his needs in reading. (Id. at 114).
Because of these shortcomings, the administrative law judge concluded that the IEP did not provide
O.L. with a free appropriate public education in those respects. (Id.) The administrative law judge
found that the remainder of the May 2006 IEP, however, did provide O.L. with a free appropriate
public education. (Id. at 88.) Additionally, he determined that there was no evidence of a material
violation of any procedural requirements. (Id. at 79.) Lastly, the administrative law judge concluded
that it was not necessary for O.L. to be placed at MAST Academy and that placing O.L. at Palmetto
would not deprive him of a free appropriate public education. (Id. at 89, 91.) Magistrate Judge
Edwin. G. Torres later recommended that the administrative law judge’s conclusion regarding
Palmetto be reversed and that the issue of O.L.’s placement be remanded.1 (Rep. and Rec., DE 43,
62.) Judge Torres concluded that the school board’s decision to place O.L. at Palmetto violated the
IDEA, both procedurally and substantively. (Id. at 62.) Procedurally, as set forth in Judge Torres’s
report and recommendation, the school board violated the IDEA by predetermining O.L.’s placement
at Palmetto before it had developed the IEP. (Id. at 46.) And substantively, the school board violated
the IDEA because O.L’s placement at Palmetto prevented him from obtaining a free appropriate
public education. (Id. at 58.) Aside from these two issues, Judge Torres recommended affirming the
administrative law judge’s decision in all other pertinent respects. Additionally, this Court’s report
1
Judge Torres’s report and recommendation was adopted by the district court on August 12,
2008. (DE 57.)
and recommendation, recommending that the parents be awarded $58,936.35 in reimbursements,
based upon an evidentiary hearing before the Court, as well as upon the findings of both the ALJ and
Judge Torres, was adopted by Judge Lenard. (Order. DE 225.)
In sum then, between the administrative law judge’s decision, Judge Torres’s and the district
court’s review of that decision, and this Court’s findings, adopted by the district court, the parents
ultimately lost on: most of their procedural violation claims; their contention that O.L. should be
placed at MAST Academy; and certain aspects of their claim that the May 2006 IEP failed to provide
O.L. with a free appropriate public education. The parents prevailed, however: in establishing that
the May 2006 IEP failed to provide a free appropriate public education with respect to two
substantive aspects; on their contention that the school board failed to provide a free appropriate
public education by placing O.L. at Palmetto; on their claim that the school board improperly
predetermined O.L.’s placement at Palmetto; and on their claim that, based on the school board’s
failure to provide a free appropriate public education, they are entitled to some reimbursement of
their expenses.
The fees currently under consideration by the Court are those that were incurred in relation
to the underlying administrative hearing. The reasonableness of the fees sought will be determined
based on the degree of success that the parents ultimately obtained as a result of those efforts.
II.
The Parents’ Request for Fees and Costs
The parents seek a total of $128,767.502 in attorneys’ fees for amounts incurred with respect
2
On page three of their motion, the parents state that they are requesting $128,767.50 in fees.
(Motion, DE 195, 3.) But in their final request for fees on page twelve of that same motion, the
parents ask for a fee award of $157,800. (Id. at 12.) The sum of the amounts requested by Liles in
his affidavit for the relevant time period is also $157,800. (Affidavit, DE 195-1, 11.) Rather than
waste judicial resources on trying to divine what amount the parents are actually requesting, the
Court will assume that they are asking for the lowest amount: $128,767.50.
to the administrative proceedings between April 12, 2006 and January 9, 2007.3 (Motion, DE 195,
3.) According to the parents’ motion, their attorney, Paul Liles, billed 185.2 hours prior to the filing
of the school board’s due process complaint and 387.1 hours between the filing of the complaint and
the issuance of the ALJ’s order. (Id.) Liles’s rate at the time was $225 an hour.4
The parents additionally request a total of $9,617.76 in costs.5 According to the parents’
motion, the costs incurred were for: copies, travel fees, overnight delivery, tolls and parking fees,
postage, transcripts, and airline tickets for a deposition in Washington D.C.
A.
Prevailing Party Status
The school board does not appear to object to the parents’ status as the prevailing party under
20 U.S.C. § 1415(i)(3)(B)(i)(I). Although the school board describes, at length, the analysis a court
should apply in determining whether a party has attained prevailing party status, the school board
never actually applies that analysis to the parents’ claim for fees. (Response, DE 201, 5-8.) Instead,
the school board contends that the parents are not entitled to a fee award because they did not
actually benefit “from any relief granted by the Court.” (Id. at 11.) The school board’s focus in this
regard is the parents’ decision not to return O.L. to school. Ultimately, however, the parents were
awarded a substantial reimbursement of the reasonable costs they incurred in providing educational
3
In its November 3, 2010 order, the Court bifurcated the issue of attorneys’ fees incurred in
the administrative proceeding and fees incurred in the court action. This order then addresses only
the fees incurred in the administrative proceeding. (Order, DE 147, 5.)
4
According to Liles’s affidavit, his hourly rates ranged from $225 to $300 during the time
period at issue. Due to an “accounting error,” (Reply, DE 204, 5), however, his bills reflect only the
$225 rate and that is the rate referred to in the parents’ motion. The Court will use the $225 rate in
calculating the parents’ fee award.
5
While the parents request $9,617.76 in costs in their motion (Motion, DE 195, 4), Liles’s
affidavit states that taxable costs amount to $13,211.51 (Affidavit, DE 195-1, 13). The Court will
assume that $9,617.76 is the amount that is actually being requested.
services to their child. This award was the result of the parents’ efforts at the administrative level,
combined with the results of the parents’ appeal of aspects of the administrative decision and
complaint in federal court. The school board’s notion that the parents somehow received no benefit
because they chose not to return their child to school is misguided. The parents effected meaningful
relief and they are therefore entitled to a fee award, the amount of which depends on a determination
of the degree of their success. See, e.g., Linda T. v. Rice Lake Area School Dist., 417 F.3d 704, 708
(7th Cir. 2005)(applying the Supreme Court’s reasoning in Hensley v. Eckerhart, 461 U.S. 424, 436
(1983) to the IDEA’s fee-shifting provision and noting that “‘the most critical factor’ in determining
the reasonableness of a fee award ‘is the degree of success obtained’”). As a threshold matter then,
the Court finds that the parents are the “prevailing party” and are thus entitled to an award of
“reasonable attorneys’ fees” under 20 U.S.C. § 1415(i)(3)(B)(i)(I). (Emphasis added).
B.
Fees and Costs Not Incurred in any Action or Proceeding Brought Under the
IDEA
The Court has discretion to award attorneys’ fees as part of the costs “[i]n any action or
proceeding brought under [the IDEA].” 20 U.S.C. § 1415(i)(3)(B)(I). By its plain meaning, the IDEA
does not contemplate the awarding of fees for efforts that are not involved in, or at least related to,
an “action or proceeding brought under [the IDEA].” Id. In that regard, the Court looks to see if the
legal services provided were both “useful and of a type ordinarily necessary” to further the
proceedings that, with respect to this motion, took place at the administrative level. See Webb v. Bd.
of Educ. of Dyer County, 471 U.S. 234, 243 (1985).
Although the parents claim that Liles “exercised ‘billing judgment’” and “meticulously
reviewed the billing records and excluded that which is not properly taxed against the [the school
board],” they do not explain why time expended during the five months prior to the school board’s
due process filing should be awarded. (Motion, DE 195, 9.) In fact, Liles himself, in his affidavit,
differentiates between the time period prior to the due process filing and the time period after. He
says that before the school board’s petition, he “provided consultation services,” as opposed to
afterwards, when he rendered services “for litigation of this matter.” (Affidavit, DE 195-1, 10-11.)
Neither the parents in their motion, nor Liles in his affidavit, make any suggestion that work product
from before the administrative proceeding, or any discrete portion thereof, “was work that was both
useful and of a type ordinarily necessary to advance” the administrative process to its ultimate
outcome. Webb, 471 U.S. at 243. Since the parents and Liles neglected to differentiate between time
spent on matters that were ultimately necessary to the administrative proceeding, if any, and time
spent that wasn’t, the Court will not award any fees for services performed prior to the school
board’s filing on October 5, 2006. The parents have failed to controvert the school board’s argument
that these fees are unrelated to the administrative hearing. Thus that portion of the fee request, that
is $41,670.00 (or 185.2 hours at $225 an hour), is not compensable because the parents did not carry
their burden of establishing that the fees were incurred “in any action or proceeding brought under
[the IDEA].”
With respect to the costs associated with this time period, the school board also objects. Upon
its own investigation of the documentation submitted,6 the Court finds that the costs claimed for
periods prior to the commencement of the administrative proceeding and after its termination are
denied. The parents have not carried their burden of establishing that the following costs were
6
Neither party broke down or summarized which expenses were associated with which time
period. The parents, in their motion, simply refer the Court to two composite exhibits, which span
61 pages, to support their claim for costs. The figures are especially challenging to reconcile since
the parents’ motion and Liles’s affidavit state different totals. The school board, in turn, objected to
all the costs without differentiating between those incurred before and those incurred after the filing
of the school board’s petition.
reasonably incurred to further the ultimate outcome at the administrative level:
Date
Expense
Amount
06/14/2006
transcript
$600.00
06/20/2006
photocopies
$20.00
06/19/2006
tolls and parking
$12.00
07/18/2006
transcript
$400.00
07/31/2006
photocopies
$1.40
07/31/2006
travel
$140.28
08/03/2006
travel
$140.39
08/31/2006
photocopies
$2.00
09/06/2006
travel
$296.39
09/26/2006
travel
$139.39
09/30/2006
photocopies
$.80
10/02/2006
travel
$219.86
01/22/2007
overnight delivery
$14.72
01/22/2007
overnight delivery
$31.21
01/22/2007
overnight delivery
$29.24
01/24/2007
photocopies
$882.29
TOTAL:
$2,929.97
While some of these costs might have been incurred for items that were ultimately compensable and
necessary to the advancement of the administrative proceedings, although many appear not to be,
they were incurred either prior to the filing of the school board’s petition or after the administrative
proceedings had been concluded. Based on the time frame in which these expenses were incurred,
the parents have failed to provide the Court with enough, or really any, information that would allow
it to make a determination regarding necessity or reasonableness. The parents’ conclusory statements
regarding the reasonable and customary nature of the costs incurred, without more, is insufficient
to establish their entitlement to these costs considering when the expenses were incurred.
The Court advises counsel that, in the future, if costs and fees are requested or disputed, they
should be specifically and precisely supported or opposed so that the Court doesn’t have to spend
its own resources piecing together what the parties should have properly presented in their filings
in the first place.
C.
Johnson Factors
After subtracting the 185.2 hours that are not compensable, as described in the preceding
section, the parents remaining fee request amounts to 387.1 hours (or, at a rate of $225 an hour,
$87,097.50). In determining the reasonableness of this request, the Court may consider the lodestar
factors as enumerated in Johnson v. Georgia Highway Express: (1) the time and labor required; (2)
the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services
properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5)
the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and the ability of the attorney; (10) the “undesirability” of the case; (11) the
nature and length of the professional relationship with the client; and (12) awards in similar cases.
488 F.2d 714, 717-19 (5th Cir. 1974).
In considering these factors, the Court notes the school board’s complaint that Liles billed
an inordinate amount of time for organizing and preparing exhibits for the due process hearing, as
well as similar tasks. (Response, DE 201, 13.) According to the school board, as many as perhaps
98.70 hours were billed to such endeavors. (Id. at 13-14.) The school board argues that these hours
should be reduced “to a reasonable number of hours” and then billed at “paralegal rates” rather than
at Liles’s rate. (Id. at 14.) The parents failed to rebut the school board’s argument on this point.
Furthermore, the Court, based also on its own assessment of the billing record in the case and based
on its own knowledge, experience, and expertise, finds merit in the school board’s allegations. Thus
in terms of the labor required, many of Liles’s time entries appear to be for work that could have
been performed by a non-lawyer. Additionally, the Court finds that the amount of time spent on such
tasks and similar undertakings was inordinate.
Likewise, the Court agrees with the school board that Liles spent excessive amounts of time
drafting, reviewing, and revising the proposed final order in the administrative case. It appears from
Liles’s billing records that as many as 158.8 hours may have been devoted to that task. The Court
finds this to be unwarranted. In light of these issues, and the absence of any Johnson factors that
might militate in favor of a contrary finding, the Court finds the parents fee request unreasonable and
that an across-the-board reduction to the hours billed of 50% is warranted in order to arrive at a
reasonable number. The lodestar amount then is $43,548.75 (193.55 hours at $225 an hour).7
D.
Degree of Success
A reduction to the lodestar is merited in this case because the parents were only partially
successful in their efforts at the administrative level. Bivins v. Wrap It Up, Inc., 548 f.3d 1348, 1352
(11th Cir. 2008) (finding that a downward adjustment may be warranted if the prevailing party was
not successful on all claims). As more fully described above, in Section I, the parents succeeded on
some claims but failed on many others. Despite indisputable evidence to the contrary, the parents
steadfastly maintain that they were “100% successful.” (Reply, DE 204, 4.) At the opposite end of
the spectrum, and equally unreasonable, the school board insists that the parents did not effect any
7
The parties do not dispute that $225 an hour is a reasonable hourly rate.
meaningful relief at all. (Response, DE 201, 10.)8
Ultimately, while the parents eventually obtained substantial relief, they also spent a sizeable
portion of their efforts at the administrative level on claims that went nowhere. And although the
Court agrees with the parents, to an extent, that they obtained significant relief, the parents also
unnecessarily protracted the proceedings below by raising an undue number of meritless claims. For
example, the parents alleged that the school board materially violated numerous procedural
requirements, none of which the administrative law judge found to have merit and only one of which
the district court found to have merit. The parents also spent an inordinate amount of time insisting
that O.L. should be placed at MAST Academy. This argument fell short at both the administrative
level as well as in the district court. While the Court does not mean to minimize the positive results
that the parents obtained, and while the Court understands that some of the issues were intertwined
and overlapping, at the same time, it cannot overlook the fact that the parents were only partially
successful.
The Court finds that much of the work spent on the unsuccessful procedural and substantive
claims was not expended in pursuit of the ultimate results achieved. See Hensley v. Eckerhart, 461
U.S. 424, 435 (1983). Thus in contemplating the administrative hearing as a whole, and the relief
finally obtained in federal court, as a result, in part, of the efforts at the administrative level, the
Court finds that a fee award of only 75% of the lodestar is reasonable. That is, in adjusting the
lodestar to take into account the parents’ partial success, the parents are awarded $32,661.56 (75%
of $43,548.75) in attorneys’ fees.
8
The Court points out that it is just this sort of hyperbole, exhibited by both parties, that has
exacerbated this litigation from, it seems, the beginning.
E.
Costs Requested for the Relevant Time Period
In addition to the costs requested for expenses incurred outside the relevant time period, as
discussed above in section II.B., the parents have also asked for costs incurred during the
administrative proceedings. In requesting costs, the parents cite to Dowdell v. City of Apopka, 698
F.2d 1181 (11th Cir. 1983) in support of their claim that they should be awarded amounts for costs
incurred that are not authorized by 28 U.S.C. § 1920. In doing so, the parents have disregarded
United States Supreme Court precedent that mandates a contrary result. Aside from attorneys’ fees,
the governing provision of the IDEA, 20 U.S.C. § 1415(i)(3)(B), does not otherwise expand the list
of recoverable costs beyond those set forth in 28 U.S.C. § 1920. Arlington Cent. School Dist. Bd. of
Educ. v. Murphy, 548 U.S. 291, 297-98 (2006).9
Section 1920 provides the following list of taxable costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use
in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.
28 U.S.C. § 1920. Any costs that are not specifically listed are not taxable. Thus, as an initial matter,
charges for: “travel fees,” “overnight delivery,” “tolls and parking fees,” “postage,” and “airline
tickets, deposition in Washington, D.C” are not taxable costs. The Court will therefore not award
9
Although the parents’ motion cites the Murphy case for the proposition that “[t]axable costs
are set forth in 28 U.S.C. section 1920,” counsel appears not to have read the case, which would
explain why the referenced pincite is to a page in the syllabus which, of course, is not actually part
of the opinion. If counsel had read the Supreme Court’s opinion in Murphy, counsel would have
realized that it’s reliance on Dowdell is misplaced.
the amounts requested for any of these items.
The only remaining, possibly compensable, costs, then, are for:
Date
Expense
Amount
10/31/2006
copies
$444.60
11/27/2006
copies
$585.44
10/20/2006
transcripts
$2,774.08
TOTAL
$3,804.12
While these costs are initially presumed to be taxable, the Court must still exercise its discretion by
assessing such costs only where they are “necessarily obtained for use in the case,” 28 U.S.C. § 1920,
and in an amount that is reasonable. The Court is satisfied that the parents have adequately
responded to the school board’s objection to the taxing of the transcript costs that were incurred after
the filing of the school board’s due process petition. (Reply, DE 204, 5-6.) As explained in their
reply, the parents needed these transcripts in order to establish what did and did not occur at certain
IEP meetings. (Id.) The invoice for these particular transcripts is dated just over two weeks after the
school board filed its petition which would further support the parents’ claims that they were
reasonably and necessarily obtained for use in the administrative proceedings. In contrast, the parents
never addressed the school board’s objections to their claim for reimbursement for the above-listed
copying expenses. While the conclusory statements in Liles’s affidavit and in the parents’ motion
regarding taxable copies might have been sufficient in support of an unopposed motion, such support
falls short in the face of the school board’s challenge to the necessity and reasonableness of such
costs. The parents have not specified what the copies were for much less why they were necessary:
one entry reads simply, “photocopies for this billing cycle”; and the other says only, “copies of
records/documents.” In sum, the only properly taxable cost claimed by the parents is the amount
requested for transcripts invoiced on October 20, 2006: $2,774.08.
III.
Conclusion
O.L.’s parents were the prevailing parties in the administrative proceedings underlying this
case and as such are entitled to recover fees and costs from the school board under 28 U.S.C. §
1415(i)(3)(B)(i). Based on the issues and factors outlined above, however, their requests for
$128,767.50 in fees and $9,617.76 in costs are reduced to $32,661.56 and $2,774.08, respectively.
Accordingly it is ORDERED that:
1.
The parents Motion for Attorneys’ Fees and Costs (DE 195) is GRANTED, subject to the
reductions as described above; and
2.
The parents shall recover from the school board $35,435.64 in fees and costs.
DONE AND ORDERED in Chambers at Miami, Florida this 26th day of April 2012.
BARRY L. GARBER
UNITED STATES MAGISTRATE JUDGE
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