K. et al v. Department of Education, State of Hawaii

Filing 61

FINDINGS AND RECOMMENDATION THAT PLAINTIFFS' MOTION FOR ATTORNEYS' FEES BE GRANTED IN PART AND DENIED IN PART re 49 . Signed by Judge BARRY M. KURREN on 04/30/2013. (eps)-- FINDS and RECOMMENDS that Plaintiffs be awa rded a total amount of $77,226.93 in attorneys' fees. The DOE did not object to Plaintiffs' costs, and the Court awards Plaintiffs costs of $518.17. Thus, the total award of fees and costs is $77,745.10. CERTIFICATE OF SERVICEParticipants registered 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
SAM K., et al.

)
)
Plaintiffs,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION, )
STATE OF HAWAII
)
)
Defendant.
)
)
_____________________________ )

CV. NO. 12-00355 ACK-BMK
FINDINGS AND
RECOMMENDATION THAT
PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES BE
GRANTED IN PART AND
DENIED IN PART

FINDINGS AND RECOMMENDATION THAT PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES BE GRANTED IN PART AND DENIED IN PART
Before the Court is Plaintiffs Sam K., Diane C., and George K’s
motion for attorneys’ fees and costs. (Doc. # 49.) After careful consideration of
the motion, the supporting and opposing memoranda, and the attached
documentation, the Court FINDS and RECOMMENDS that Plaintiffs’ motion for
attorneys’ fees be GRANTED IN PART.1 Specifically, the Court awards Plaintiffs
$77,745.10 in attorneys’ fees and costs.
BACKGROUND
The background of this Individuals With Disabilities Education Act

1

Pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawaii (“Local Rules”), the Court elects to decide this matter
without a hearing.

(“IDEA”) case is summarized in the Court’s February 13, 2013 Order Affirming in
Part and Reversing in Part the Hearing Officer’s decision. (Doc. # 46.) Briefly
stated, the Court reversed the Hearing Officer’s decision denying Plaintiffs
reimbursement. (Doc. # 46 at 37-38.) Plaintiffs then filed the instant motion for
attorneys’ fees, and the DOE asserts that Plaintiff counsel’s rate is unreasonable
and that he spent an excessive amount of time on this case. As discussed below,
the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.
DISCUSSION
The IDEA permits the award of attorneys’ fees to a prevailing party.
20 U.S.C. § 1415(i)(3)(B). The DOE argues that the Plaintiffs have not yet
prevailed in light of the notice of appeal it filed. (Doc. # 51 at 2.) The Ninth
Circuit has held that district courts may consider motions for attorneys’ fees even
after an appeal has been filed. Masalosalo by Masalosalo v. Stonewall Ins. Co.,
718 F.2d 955, 956-57 (9th Cir.1983) (holding that the district court retains the
power to award attorneys’ fees after the notice of appeal from the decision on the
merits has been filed). Plaintiffs also succeeded in obtaining tuition
reimbursement, which makes them a prevailing party. See Parents of Student W.
v. Puyallup Sch. Dist. No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994) (quoting Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983) (defining a prevailing party as “a party
2

which ‘succeed[s] on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing the suit.’”); Witkowski v. International Broth.
of Boilermakers, Iron Shipbuilders, Local Union 154, Civ. No. 06-874, 2010 WL
1433104, at *3 (W.D. Pa. Apr. 7, 2010) (considering fees motion while case was
on appeal).
The critical question in this case is the amount of fees and costs
Plaintiffs are entitled to. To determine whether a fee award is reasonable, the
Court must scrutinize the reasonableness of the number of hours expended and the
hourly fee claimed. Long v. I.R.S., 932 F.2d 1309, 1313-14 (9th Cir. 1991). If
those two figures are reasonable, then “there is a ‘strong presumption’ that their
product, the lodestar figure, represents a reasonable award.” Id. “The court may
authorize an upward or downward adjustment from the lodestar figure if certain
factors relating to the nature and difficulty of the case overcome this strong
presumption and indicate that such an adjustment is necessary.”2 Id. As discussed
2

The Ninth Circuit has adopted the following factors to guide the Court’s
evaluation of a fee award:
(1) the time and labor required, (2) the novelty and difficulty of the
questions involved, (3) the skill requisite to perform the legal service
properly, (4) the preclusion of other employment by the attorney due to
acceptance of the case, (5) the customary fee, (6) whether the fee is fixed
or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained, (9) the
experience, reputation, and ability of the attorneys, (10) the
‘undesirability’ of the case, (11) the nature and length of the professional
3

below, the Court concludes that Plaintiffs’ hourly rate is excessive, but that the
time spent on this case is reasonable.
A.

Plaintiff’s Hourly Rate is Excessive.
In “determining a reasonable hourly rate, the district court should be

guided by the rate prevailing in the community for similar work performed by
attorneys of comparable skill, experience, and reputation.” Webb v. Ada County,
285 F.3d 829, 840 (9th Cir. 2002) (quoting Chalmers v. City of L.A., 796 F.2d
1205, 1210-11 (9th Cir.1986)).
Plaintiffs seek hourly rates of $375 for Carl Varady and $85 for his
paralegal. (Doc. # 49 at 14-15.) The Court finds that Carl Varady’s rate is
unreasonable. Although Plaintiffs produced declarations from attorneys opining
that Mr. Varady’s rate is reasonable, after evaluating rates awarded in similar
proceedings, the Court finds that an hourly rate of $285 is reasonable. In this
district, Mr. Varady has previously been awarded a rate of $275 an hour. D.C. v.
Department of Educ., Civ. No. 07-00362 ACK-KSC, 2008 WL 3911011, at *1 (D.
Haw. Aug. 25, 2008); Loveland Academy, L.L.C. v. Hamamoto, Civ. No. 07-

relationship with the client, and (12) awards in similar cases.
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).

4

00362 ACK-KSC, 2008 WL 3523895, at *9 (D. Haw. Aug. 25, 2008). Recently,
this Court awarded Stanley Levin $300 per hour in IDEA cases. Colyn F. v. State
of Hawaii Department of Educ., Civ. No. 12-00009 SOM-BMK, 2012 WL
6738539, at *3 (D. Haw. Dec. 31, 2012); Carrie I. v. Dept. of Educ., Civ. No. 1100464 JMS-RLP, at 8-10 (D. Haw. July 25, 2012) (awarding similar hourly rates in
an IDEA proceeding); Marc M. ex rel. Aidan M. v. Dept. of Educ., Civ. No. 1000195 DAE-RLP, 2011 WL 5320752, at *4 (D. Haw. May 26, 2011) (same). Mr.
Levin has over thirty years of experience in IDEA cases, which is more experience
than Mr. Varady. See D.C. v. Department of Educ., Civ. No. 07-00362 ACK-KSC,
2008 WL 2902079, at *5 (D. Haw. July 25, 2008) (noting that Mr. Levin has more
experience than Mr. Varady and awarding him a higher rate). Based on the awards
in this jurisdiction and the Court’s familiarity with the prevailing rates in the
community, the Court concludes that $285 per hour is a reasonable hourly rate for
Mr. Varady.
The DOE has not challenged Mr. Varady’s paralegal’s rate of $85 per
hour, and Courts in this district have allowed a rate of $85 per hour for paralegals.
See Donkerbrook v. Title Guar. Escrow Services, Inc., Civ. No. 10–00616
LEK–RLP, 2011 WL 3649539, at *7 (D. Haw. Aug. 18, 2011); Ko Olina Dev.,
LLC v. Centex Homes, Civ. No. 09-00272 DAE-LEK, 2010 WL 447451, at *2-3
5

(D. Haw. Feb. 9, 2010) (finding that $85 is a reasonable hourly rate for a paralegal
with thirty years of experience). Thus, the Court finds that Mr. Varady’s paralegal
rate is reasonable.
B.

The Court Declines to Reduce Plaintiff Counsel’s Hours For Excessive
Billing or Block Billing.
Defendant disputes seven of Plaintiff counsel’s billing entries,

asserting that he spent an excessive amount of time drafting briefs at the
administrative level and researching a subpoena. (Doc. # 51 at 13.) Excessive or
unnecessary time is not compensable. See Gates v. Deukmejian, 987 F.2d 1392,
1397 (9th Cir. 1992) (quoting Hensley, 461 U.S. at 433–34). The Court concludes
that Plaintiff counsel did not spent an excessive amount of time on these tasks.
Plaintiff counsel spent 21.4 hours on a supplemental brief, 11.65 hours on the prehearing brief, and 7.3 hours on the closing brief. (Doc. # 51 at 13-14; Pl.’s Reply
Br. at 8 & Ex. 3.) After reviewing the administrative record, the amount of time
does not appear excessive on its face, and without any specific argument as to why
it is excessive, the Court concludes that it is reasonable.
Defendant also asserts that the type of legal research and the specific
issue researched was not specified in the entries above. (Doc. # 51 at 14.) Local
Rule 54.3(d)(2) requires a reasonable description of the work performed in order to
collect attorneys’ fees, and provides that “entries for legal research must include an
6

identification of the specific issue researched and, if possible, should identify the
pleading or document for which the research was necessary . . . .” LR54.3(d)(2).
Many of the entries cited by the DOE do not specify the legal issue researched.
For instance, some of the entries are: “Research and draft pre-hearing brief” and
“Final research and revisions to brief.” (Doc. # 51 at 13.) Ordinarily, the Court
might impose a ten percent reduction on the deficient entries. See Schrum v.
Burlington Northern Santa Fe Ry. Co., Civ. No. 04–0619 PHX–RCB, 2008 WL
2278137, at *9 (D. Ariz. May 30, 2008) (applying percentage reduction in light of
inadequate descriptions). However, in this case, the Court concludes a reduction is
inappropriate because Mr. Varady voluntarily reduced his bill by 10.4 hours and
did not claim fees for drafting his reply brief. (Doc. # 56 at 5, 9.)
The DOE also asserts that thirty-seven of Plaintiff counsel’s billing
entries are block-billed. (Doc. # 51 at 16.) Plaintiff counsel asserts that the billing
entries are not block billed, and that they provide adequate information under
Local Rule 54.3(d). Block billing occurs when an attorney “enters the total daily
time spent working on a case, rather than itemizing the time expended on specific
tasks.” Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998)
(citations and quotation marks omitted). Courts have the authority to reduce blockbilled hours because block billing makes it difficult to determine how much time
7

was spent on particular activities. Welch v. Metropolitan Life Ins. Co., 480 F.3d
942, 948 (9th Cir. 2007). Many of the disputed entries have two associated tasks
in the same line. For instance, many of the entries are “Read and research
arguments in D’s Motion for summary judgment” or “Research and draft prehearing brief.” (Id.) Although these entries describe two tasks, it does not hinder
the Court’s ability to assess their reasonableness. See Department of Educ. Hawaii
v. C.B. ex rel. Donna B., Civ. No. 10-00576 SOM-RLP, 2012 WL 7475406, at *10
(D. Haw. Sept. 28, 2012) (holding that block billing did not prevent the Court from
evaluating the reasonableness of the request). Finally, some of the entries contain
a laundry list of tasks or describe an entire day’s work in one billing entry. For
instance, one entry for 8.2 hours states: “Review exhibits and continue witness
preparation and outline of direct examination for hearing.” (Pl’s Ex. 10.3.) The
list of tasks in this entry makes it difficult for the Court to gauge its
reasonableness. However, in light of Plaintiff counsel’s prior voluntary reductions
and the small number of laundry list entries, the Court concludes that a reduction
for block billing is inappropriate.
C.

The Witness Preparation Entry Is Not Unreasonable.
The DOE asserts that an entry for “witness prep” is too vague to

determine its reasonableness. Although the entry fails to specify the witnesses
8

counsel prepared, 4.2 hours of witness preparation time when five witnesses were
called at the hearing is not an unreasonable amount of time. See Witt v. U.S. Dept.
of the Air Force, 2012 WL 1747974, at *6 (W.D. Wash. May 16, 2012) (“While it
is true that the witnesses are not always identified, it is also true that there were
numerous trial witnesses, and these entries are not facially unreasonable for
witness prep time.”); Pl.’s Reply Br. at 17. Despite the vagueness of the entry, the
Court concludes that the time spent is reasonable.
Based on the foregoing, the Court calculates the lodestar as follows:
Attorney

Reasonable Hours

* Reasonable Rate =

Lodestar

Carl Varady

255.05

$285

$72,689.25

Paralegal

12.5

$85

$1,062.50

The Court also awards Plaintiffs general excise tax (4.712%), and
therefore FINDS and RECOMMENDS that Plaintiffs be awarded a total amount of
$77,226.93 in attorneys’ fees. The DOE did not object to Plaintiffs’ costs, and the
Court awards Plaintiffs costs of $518.17. Thus, the total award of fees and costs is
$77,745.10.

9

DATED: Honolulu, Hawaii, April 30, 2013.
IT IS SO FOUND AND RECOMMENDED.

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

K. v. Dept. of Educ., State of Hawaii; Civ. No. 12-00355 ACK-BMK; FINDINGS AND
RECOMMENDATION THAT PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES BE
GRANTED IN PART AND DENIED IN PART
10