D.S. vs. Department of Education

Filing 36

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND RELATED NONTAXABLE EXPENSES 31 . Signed by Judge BARRY M. KURREN on 6/6/11. (eps)CERTIFICATE OF SERVICEParticipants reg istered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
D.S., by and through his parents,
Clarenore and Greg S.,

)
)
)
Plaintiff,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION, )
State of Hawaii,
)
)
Defendant.
)
_____________________________ )

CV. NO. 10-00053 BMK
ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION FOR
ATTORNEYS’ FEES AND
RELATED NONTAXABLE
EXPENSES

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND RELATED
NONTAXABLE EXPENSES
Before the Court is Plaintiff D.S., by and through his parents,
Clarenore and Greg S.’s (collectively “Plaintiff”) Motion for Attorneys’ Fees and
Related Nontaxable Expenses.1 (Doc. # 31.) Defendant Department of Education,
State of Hawaii (“DOE”) opposes the motion. (Doc. # 34.) Pursuant to Local
Rule 7.2(d) of the Local Rules of Practice for the United States District Court for
the District of Hawaii (“Local Rules”), the Court elects to decide this matter
without a hearing. After careful consideration of the motion, and the supporting
and opposing memoranda, the Court GRANTS IN PART and DENIES IN PART

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The Court notes that the motion does not request any nontaxable expenses.

Plaintiff’s Motion for Attorneys’ Fees and Related Nontaxable Expenses.
BACKGROUND
A detailed summary of the facts of this case was provided in the
Court’s order filed on April 1, 2011. (See Doc. # 29.) The Court thus repeats only
those facts that are necessary for a determination of the instant matter. This motion
arises out of Plaintiff’s appeal of an Administrative Hearings Officer’s (“Hearings
Officer”) Findings of Fact, Conclusions of Law, and Decision (“Decision”)
rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1400, et seq. The Decision concerned the appropriateness of D.S.’s
2009 individualized education programs (“IEPs”). In his Decision, the Hearings
Officer concluded that Plaintiff did not prove by a preponderance of the evidence
that the 2009 IEPs were procedurally or substantively flawed. (R. at 101.)
The Court heard Plaintiff’s appeal on December 20, 2010. (Order at
1.) On April 1, 2011, the Court issued an Order Affirming in Part, Reversing in
Part, and Remanding the Hearings Officer’s Decision. (Doc. # 29.) The Court
noted that Plaintiff raised essentially four arguments on appeal: (1) the Hearings
Officer erred in failing to address the DOE’s inability to secure Loveland
Academy’s (“Loveland”) attendance at the 2009 IEP meetings pursuant to
34 C.F.R. § 300.325(a)(2); (2) the Hearings Officer erred in concluding that the
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2009 IEPs were procedurally valid when the DOE did not make a formal, written
offer of placement; (3) the Hearings Officer erred in concluding that a transition
plan was not require for D.S.’s transition from Loveland to a DOE school; and
(4) the Hearings Officer erred in concluding that the 2009 IEPs were adequate to
meet D.S.’s needs based upon the information that was provided to the IEP team as
of the dates of the IEPs. (Order at 23.)
As to the first two arguments, the Court noted that Plaintiff failed to
raise these arguments in front of the Hearings Officer. (Id. at 23-25.) The Court
therefore deemed these arguments waived. (Id. at 24-25.) As to the third
argument, the Court held that the Hearings Officer was correct in concluding that a
transition plan was not required for D.S.’s transition from Loveland to a DOE
school. (Id. at 27.) The Court thus affirmed the Hearings Officer’s Decision to
this extent. (Id.) As to the last argument, the Court concluded that the 2009 IEPs
were substantively deficient, thereby depriving D.S. of a free appropriate public
education (“FAPE”). (Id. at 32.) The Court thus reversed the Hearings Officer’s
Decision to the extent he concluded that the 2009 IEPs were substantively
adequate, and granted Plaintiff’s request for reimbursement. (Id. at 32-38.) The
Court, however, used its equitable powers to reduce the amount of reimbursement
to Plaintiff by thirty percent because D.S.’s parents acted unreasonably. (Id. at 343

38.) The Court remanded the case to the Hearings Officer for a determination of
the amount owed to Plaintiff. (Id. at 38-39.)
On April 1, 2011, judgment was entered pursuant to the Court’s order.
(Doc. # 30.) Plaintiff then moved for an award of attorneys’ fees pursuant to
20 U.S.C. § 1415(i)(3)(B). (Mot. at 2.) In his motion, Plaintiff requested
attorneys’ fees for work performed by Jerel D. Fonseca and Matthew C. Bassett in
connection with the administrative and district court proceedings, respectively.
(Mem. in Supp. of Mot. at 7-8.) Plaintiff has since reached a settlement with
respect to Fonseca’s fees, and therefore, this order addresses only the fees
requested by Bassett. (See Opp’n at 3.)
DISCUSSION
Under the IDEA, “the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a
child with a disability . . . .” 20 U.S.C. § 1415(i)(3)(B)(i)(I). The DOE does not
dispute that Plaintiff is the prevailing party and that, as such, he is entitled to an
award of attorney’s fees. (See Opp’n at 4.) Therefore, the only dispute is the
amount of the award.
To calculate an award of reasonable attorney’s fees in IDEA cases,
courts use the lodestar calculation set forth in Hensley v. Eckerhart, 461 U.S. 424
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(1983). Aguirre v. Los Angeles Unified Sch. Dist., 461 F.3d 1114, 1121
(9th Cir. 2006) (holding that “attorney’s fees awarded under 20 U.S.C. § 1415 are
governed by the standards set forth by the Supreme Court in Hensley and its
progeny”). Under Hensley, 461 U.S. at 433, the “starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” Once calculated, the lodestar
amount is presumptively reasonable, although it may be subject to adjustment in
certain circumstances. Tirona v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632,
636 (D. Haw. 1993); see also Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4
(9th Cir. 2000) (citation omitted).
In this case, Plaintiff requests the following lodestar amount for
Bassett:
Hours

Lodestar

63.4
6.0

$275
$100

$17,435.00
$ 600.00

TOTAL

Attorney’s Fees
Travel

Rate

$18,035.00

(Mot. Ex. B.) The DOE does not object to Bassett’s hourly rate. (Opp’n at 4.)
Thus, the Court’s inquiry focuses only on the reasonableness of the number of
hours expended.
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As to the reasonableness of the number of hours expended, the party
seeking fees bears the burden of proving that such hours were associated with the
relief requested and reasonably necessary to achieve the results obtained. See
Tirona, 821 F. Supp. at 636. Plaintiff attached to his motion documentation
itemizing the number of hours expended by Bassett. (Mot. Ex. B.) Bassett asserts
that said hours were reasonably necessary to litigate the action on appeal. (See
Bassett Decl. ¶ 19.)
The DOE objects to the number of hours expended, arguing that
certain billing entries: (1) do not comply with Local Rule 54.3(d)(2); (2) contain
excessive billing; (3) include time spent on clerical or ministerial tasks; and
(4) include time spent traveling from Maui to Oahu to attend the hearing on
Plaintiff’s appeal. (Opp’n at 6-11.) The DOE requests that after the appropriate
reductions are made, the Court further reduce the amount of the award based on
Plaintiff’s partial or limited success on appeal. (Id. at 11-13.) The Court addresses
the DOE’s objections in turn.
A.

Local Rule 54.3(d)(2)
The DOE objects to certain billing entries for time spent on legal

research. (Id. at 6-8.) These entries are dated September 12, 2010 and
October 28, 2010, and they are for 8.2 and 4.3 hours, respectively. (Mot. Ex. B at
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3.) The DOE objects to these entries on the ground that their descriptions do not
comply with Local Rule 54.3(d)(2). (Opp’n at 6-7.) This Local Rule provides:
Description of Services Rendered. The party seeking
an award of fees must describe adequately the services
rendered, so that the reasonableness of the requested fees can be
evaluated. In describing such services, counsel should be
sensitive to matters giving rise to attorney-client privilege and
attorney work product doctrine, but must nevertheless furnish
an adequate non-privileged description of the services in
question. If the time descriptions are incomplete, or if such
descriptions fail to describe adequately the services rendered,
the court may reduce the award accordingly. For
example, . . . entries for legal research must include an
identification of the specific issue researched and, if possible,
should identify the pleading or document for which the research
was necessary . . . .
Local Rule LR54.3(d)(2) (emphasis added).
The entries to which the DOE objects include the names of the cases
reviewed and the pleading or document for which the research was necessary. (See
Mot. Ex. B at 3.) They, however, do not identify the specific issues researched.
The Court has the discretion to reduce the requested award for inadequate
descriptions and the ultimate question is whether there is sufficient information to
allow the Court to assess the reasonableness of the requested fees. Brandon E. v.
Dep’t of Educ., Civ. No. 07-00536 ACK-LEK, 2008 WL 4602533, at *9 (D. Haw.
Oct. 16, 2008). After reviewing the entries, the Court finds that there is sufficient
information to allow the Court to determine the reasonableness of the requested
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fees. The Court therefore declines to reduce Bassett’s requested hours based on the
entries’ inadequate descriptions. The Court, however, notes that this does not
prevent it from making appropriate reductions in future motions for attorney’s fees
filed by Bassett for inadequate descriptions of services rendered.
B.

Excessive Billing
The DOE objects to certain entries on the ground that they contain

excessive billing. (Opp’n at 8-9.) Specifically, the DOE objects to the following:
2.5 hours spent reviewing the DOE’s exhibit list (September 12, 2010); 16.0 hours
spent drafting Plaintiff’s Opening Brief (September 13 and 14, 2010); and
13.9 hours spent drafting Plaintiff’s Reply Brief (October 28 and 29, 2010). (Id. at
8.) The DOE argues that the time spent on the foregoing is excessive given that
the DOE’s exhibit list was about two pages in length; the time spent drafting
Plaintiff’s Opening Brief does not include the time spent on fact gathering or
research; and Plaintiff’s Reply Brief was about eight pages in length. (Id. at 8-9.)
Plaintiff argues in reply that the time spent reviewing the DOE’s exhibit list also
includes the time spent reviewing the DOE’s exhibits; and the time spent drafting
Plaintiff’s Opening and Reply Briefs is reasonable. (Reply at 4-5.) The Court
finds that the time billed by Bassett, as set forth above, is reasonable. The Court
therefore declines to reduce Bassett’s requested hours for excessive billing.
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C.

Clerical or Ministerial Tasks
The DOE objects to certain entries on the ground that they include

time spent performing clerical or ministerial tasks. (Opp’n at 9-10.) “Clerical or
ministerial costs are part of an attorney’s overhead and are reflected in the charged
hourly rate.” Jeremiah B. v. Dep’t of Educ., Civ. No. 09-00262 DAE-LEK,
2010 WL 346454, at *5 (D. Haw. Jan. 29, 2010). The Court finds that, of the
entries to which the DOE objects, only the entry dated January 13, 2010 includes
time spent performing clerical or ministerial tasks: 0.2 hours for “[r]eceiv[ing]
transmittal letter and evidence binder including pleadings file and hearing
transcripts from [Fonseca.]” (Mot. Ex. B at 2.) This Court has noted that receiving
documents is clerical or ministerial, and therefore, not compensable. See Haw.
Motorsports Inv., Inc. v. Clayton Grp. Servs., Inc., Civ. No. 09-00304 SOM-BMK,
2010 WL 4974867, at *5 (D. Haw. Dec. 1, 2010). Accordingly, the Court deducts
0.2 hours from Bassett’s requested hours.
D.

Travel from Maui to Oahu
The DOE objects to time billed by Bassett for traveling from Maui to

Oahu to attend the hearing on Plaintiff’s appeal. (Opp’n at 11.) Bassett billed
6.0 hours for such time. (Mot. Ex. B at 4.) This Court has awarded counsel
reasonable travel time for case-related travel to and from the other islands or the
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mainland. See Melodee H. ex rel. Kelii H. v. Dep’t of Educ., Civ. No. 07-00256
HG-LEK, 2008 WL 4344701, at *12 (D. Haw. Sept. 23, 2008); see also Apana v.
TIG Ins. Co., Civ. No. 06-00653 JMS-LEK, 2008 WL 3891887, at *8 (D. Haw.
Aug. 22, 2008); Goray v. Unifund CCR Partners, Civ. No. 06-00214 HG-LEK,
2008 WL 2404551, at *6 (D. Haw. June 13, 2008). In this case, however, the
Court finds that the time billed by Bassett is excessive, particularly because it does
not include the time he spent at the hearing on Plaintiff’s appeal. The Court finds
that, instead, 2.0 hours in travel time is reasonable. The Court therefore deducts
4.0 hours from Bassett’s requested hours.
E.

Partial or Limited Success
The DOE argues that the amount of the fee award should be further

reduced based on Plaintiff’s partial or limited success on appeal. (Opp’n at 11-13.)
The DOE notes that on appeal: (1) Plaintiff prevailed on only one of his four
arguments, and (2) the amount of reimbursement awarded to Plaintiff was reduced
by thirty percent. (Id. at 12.) The DOE therefore requests that the fee award be
reduced by seventy-five percent, or in the alternative, thirty percent. (Id. at 12-13.)

The Ninth Circuit has held that the “degree of success” standard
announced in Hensley applies to attorney’s fees awards under the IDEA.
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Aguirre, 461 F.3d at 1115. Under Hensley, 461 U.S. at 440, “the extent of a
plaintiff’s success is a crucial factor in determining the proper amount of an award
of attorney’s fees . . . .” The Supreme Court stated:
Where the plaintiff has failed to prevail on a claim that is
distinct in all respects from his successful claims, the hours
spent on the unsuccessful claim should be excluded in
considering the amount of a reasonable fee. Where a lawsuit
consists of related claims, a plaintiff who has won substantial
relief should not have his attorney's fee reduced simply because
the district court did not adopt each contention raised. But
where the plaintiff achieved only limited success, the district
court should award only that amount of fees that is reasonable
in relation to the results obtained.
Id. The Court applies the Hensley standard to this case.
As to the first inquiry, whether the lawsuit consists of distinct or
related claims, the Court concludes that this case consists of related claims.
Unrelated claims are “distinctly different claims for relief that are based on
different facts and legal theories,” which is not the case here. Id. at 434. Because
the unsuccessful and successful claims are related, the Court must apply the second
inquiry, which is, “[D]id the plaintiff achieve a level of success that makes the
hours reasonably expended a satisfactory basis for making a fee award?” Id. In
Hensley, the Supreme Court noted:
Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee. . . . In these
circumstances the fee award should not be reduced simply
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because the plaintiff failed to prevail on every contention raised
in the lawsuit. Litigants in good faith may raise alternative
legal grounds for a desired outcome, and the court’s rejection of
or failure to reach certain grounds is not a sufficient reason for
reducing a fee. The result is what matters.
If, on the other hand, a plaintiff has achieved only partial
or limited success, the product of hours reasonably expended on
the litigation as a whole times a reasonable hourly rate may be
an excessive amount. This will be true even where the
plaintiff's claims were interrelated, nonfrivolous, and raised in
good faith. Congress has not authorized an award of fees
whenever it was reasonable for a plaintiff to bring a lawsuit or
whenever conscientious counsel tried the case with devotion
and skill. Again, the most critical factor is the degree of
success obtained.
Id. at 435 (internal citation and footnote omitted). In this case, although Plaintiff
did not succeed on all of the arguments raised, the Court finds that the degree of
success obtained was significant. In its order, the Court concluded that the
2009 IEPs were substantively deficient, thereby depriving D.S. of a FAPE. (Order
at 32.) The Court thus reversed the Hearings Officer’s Decision to the extent he
concluded that the 2009 IEPs were substantively adequate, and granted Plaintiff’s
request for reimbursement. (Id. at 32-38.) Although the Court reduced the amount
of reimbursement to Plaintiff by thirty percent, the Court finds that the results
obtained were nevertheless excellent. Accordingly, the Court declines to reduce
Bassett’s fee award for partial or limited success.
F.

Total Lodestar Amount
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Based on the foregoing, the Court awards Plaintiff the following
lodestar amount for Bassett:
Hours

Lodestar

63.2
2.0

Attorney’s Fees
Travel

Rate
$275
$100

$17,380.00
$ 200.00
$17,580.00

Subtotal
CONCLUSION

As set forth above, the Court GRANTS IN PART and DENIES IN
PART Plaintiff’s Motion for Attorneys’ Fees and Related Nontaxable Expenses.
Specifically, Plaintiff is awarded $17,580.00 in attorney’s fees for the work
performed by Bassett.
IT IS SO ORDERED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

D.S., by and through his parents, Clarenore and Greg S. v. Department of Education, State of
Hawaii; Civ. No. 10-00053 BMK; ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND RELATED NONTAXABLE
EXPENSES.
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