SD v. PORTLAND PUBLIC SCHOOLS
Filing
41
ORDER ON PLAINTIFFS MOTION FOR ATTORNEYS FEES granting in part 32 Motion for Attorney Fees By JUDGE JON D. LEVY. (nwd)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SD, individually and as parent
)
and legal guardian of HV, a minor, )
)
Plaintiff,
)
v.
)
)
PORTLAND PUBLIC SCHOOLS, )
)
Defendant.
)
Civil No. 2:13-cv-00152-JDL
ORDER ON PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES
The plaintiff, SD, has moved pursuant to Federal Rule of Civil Procedure 54(d)
and the pertinent provision of the Individuals with Disabilities in Education Act
(“IDEA”), 20 U.S.C.A. § 1415(i)(3)(B)(i)(I) (2014), for an award of reasonable attorneys’
fees and expenses which were incurred in an administrative due process hearing and
in subsequent litigation in this court. The administrative hearing and the litigation
concerned SD’s objections to the individualized education plans (“IEPs”) that the
defendant, Portland Public Schools (“Portland”), developed for SD’s minor son, HV,
in his fifth, sixth, and seventh grade years.
In the court’s September 19, 2014, Order (the “September 19 Order”) (ECF No.
29), I concluded that Portland failed to provide HV with a free, appropriate public
education for his sixth grade year (2011-2012) at Lincoln Middle School in Portland,
Maine.
Consequently, I also concluded that SD was “entitled to an award of
compensatory education for the expenses she incurred in enrolling HV in the
Aucocisco School during the 2012-2013 academic year, minus the amount the hearing
officer already awarded for HV’s attendance at Aucocisco’s six-week summer program
and for the two-week literacy tutoring and transportation costs.” ECF No. 29 at 23.
Plaintiff’s counsel seeks an award of $72,307.80, representing (i) so-called
“lodestar” fees of $69,246.00 through the filing of the attorneys’ fee motion, (ii)
$1,861.80 for compensable, out-of-pocket expenses, and (iii) additional lodestar fees
of $1,200.00 incurred in preparing SD’s reply memorandum in support of the
attorneys’ fees motion.
Portland objects that the lodestar figure of $69,246 is too high, and that it
should be adjusted downward for two reasons. First, Portland argues certain work
performed by plaintiff’s counsel before and during the administrative hearing, and
prior to the lawsuit in this court, totaling $3,650, is not compensable and should be
deducted from the lodestar figure, bringing the new total to $65,596.
Second,
Portland argues that the new, lower lodestar figure should be reduced by 66%, “to
reflect the fact that [SD] won on only one year out of the three school years that were
in dispute.” ECF No. 38.
I. LEGAL STANDARDS
The IDEA permits the award of reasonable attorneys’ fees to a prevailing party
who is the parent of a child with a disability. 20 U.S.C.A. § 1415(i)(3)(B)(i)(I) (2014).
“In IDEA attorney fee disputes, the courts generally have applied prevailing party
principles from § 1988 cases.” Mr. & Mrs. C. v. Maine Sch. Admin. Dist. No. 6, 582
F.Supp.2d 65, 67 (D. Me. 2008).
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Thus, to qualify as a “prevailing party,” an IDEA litigant must demonstrate
that (1) she obtained relief on a significant claim in the litigation; (2) such relief
effected a material alteration in the parties’ legal relationship; and (3) the alteration
is not merely technical or de minimis in nature. Kathleen H. v. Massachusetts Dept.
of Educ., 154 F.3d 8, 14 (1st Cir. 1998); Regional Sch. Dist. Unit No. 51 v. Doe, 2013
WL 3781491, *2 (D. Me. July 18, 2013). Here, there is no dispute that SD is a
prevailing party. Instead, the parties dispute the degree of success she obtained.
ECF No. 38 at 4.
The starting point in setting an attorneys’ fee award is determining the
lodestar figure—that is, the product of the number of hours reasonably expended to
prosecute the lawsuit multiplied by a reasonable hourly rate. Hensley v. Eckerhart,
461 U.S. 424, 433 (1983); see also Gay Officers Action League v. Puerto Rico, 247 F.3d
288, 295 (1st Cir. 2001). The fee applicant bears the burden of producing materials
that support the request, which should include “counsel’s contemporaneous time and
billing records, suitably detailed, and information [about] the law firm’s standard
billing rates.” Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 13 (1st Cir. 2011)
(citation omitted). The party opposing the fee award may submit countervailing
evidence. Id. (citing Foley v. City of Lowell, 948 F.2d 10, 20-21 (1st Cir. 1991)). The
court, “usually after hearing arguments, will then calculate the time counsel spent
on the case, subtract duplicative, unproductive, or excessive hours, and apply
prevailing rates in the community (taking into account the qualifications, experience,
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and specialized competence of the attorneys involved.)” Id. (citing Gay Officers Action
League, 247 F.3d at 295) (quotations and internal punctuation omitted).
After calculating the lodestar fee, the court should then proceed with an
analysis of whether any portion of this fee should be adjusted upwards or downwards,
based upon “the degree of success obtained.” See Hensley, 461 U.S. at 435-36. See
also Burke v. McDonald, 572 F.3d 51, 65 n.11 (1st Cir. 2009). If the prevailing party
achieves only partial or limited success, then the attorneys’ fee award may be
adjusted downward. Id.
II. LODESTAR CALCULATION
A.
Hourly Rate
Plaintiff’s counsel is Richard L. O’Meara, a partner in the Portland, Maine, law
firm of Murray, Plumb & Murray, who has lengthy experience representing parties
in IDEA cases. Attorney O’Meara began representing SD in August 2012, at which
point he had practiced law for 25 years. Throughout the case, Attorney O’Meara’s
hourly rate was $300 per hour. Joining Attorney O’Meara was Nicole Bradick, Esq.,
a former associate at Murray, Plumb & Murray who had five years of experience at
the beginning of the case; and Sara Hellstedt, Esq., an associate at Murray, Plumb &
Murray who also had five years of experience at the beginning of the case. Attorney
Bradick’s and Attorney Hellstedt’s hourly rates were $200 per hour.
Portland does not dispute the reasonableness of these hourly rates. This court
has concluded in the recent past that a $300 hourly rate for experienced, Maine-based
counsel such as Attorney O’Meara is reasonable, and I conclude that $300 per hour
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is reasonable and appropriate in this case. IMS Health Corp. v. Schneider, 901
F.Supp.2d 172, 195 (D. Me. 2012); see also Sabina, et. al. v. JP Morgan Chase Bank
NA, et. al., 2014 WL 5489447, *3 (D. Me. Oct. 29, 2014). With regard to the $200
hourly rate for Attorney Bradick and Attorney Hellstedt, this court has previously
found similar rates to be reasonable with regard to associate attorneys who had
slightly more experience. Spooner v. EEN, Inc., 829 F.Supp.2d 3, 5-8 (D. Me. 2010)
(finding that an hourly rate of $210 for an associate with 9 years’ experience was
reasonable). I also find that the $200 hourly rate for Attorneys Bradick and Hellstedt
is reasonable, as is the billing rate of $90 per hour for paralegal work. See IMS Health
Corp., 901 F.Supp.2d at 197.
B.
Hours Reasonably Expended
(1) Pre-Suit Work
(a) Work Allegedly Not Related to the Administrative Hearing
Portland
objects
to
certain
hours
recorded
in
plaintiff’s
counsel’s
contemporaneous billing records (“billing entries”), arguing that the work did not
involve prosecution of the administrative hearing but instead represented legal
advice on other issues related to HV’s educational program. ECF No. 38 at 4-5
(objecting to billing entries from August 20, 2012, to September 6, 2012; November 6,
2012; February 8, 2013; and April 23 and 25, 2013). Portland also claims that SD
was required but neglected to segregate fees for work related to the hearing from fees
for non-hearing-related work, citing Regional Sch. Dist. Unit No. 51, 2013 WL
3781491 at *4 and Mr. & Mrs. C. v. MSAD 6, 2008 WL 2609362 at *2. This objection
is far too broad. The cases which Portland cites discuss the fact that the IDEA
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prohibits the award of attorneys’ fees for attendance at IEP Team meetings. This is
a different question from whether the work reflected in a billing entry was directly
related to prosecution of the hearing request. See Regional Sch. Dist. Unit No. 51 at
*4; Mr. & Mrs. C. at *2. Likewise, Portland’s argument about segregation of fees is
also overbroad. A fee applicant is only required to segregate fees related to IEP Team
meetings. Id. Neither case cited by Portland requires a plaintiff seeking a fee award
to segregate hearing-related fees from everything else, as Portland claims. See id.
Only one of the entries disputed by Portland, above, contains a reference to
something that could reasonably be described as an IEP Team meeting: the
September 6, 2012, entry reflecting an email sent by Attorney O’Meara to SD
regarding “advice concerning her participation in meeting to which she was invited
by S. Pray, Portland’s new special education director.” ECF No. 32-3 at 1. Because
it is the plaintiff’s burden to demonstrate that the contested sum is reasonably related
to this litigation and not to an IEP Team meeting, I conclude that the billing entry
for September 6, 2012 is not compensable, and the $60.00 charge should be deducted
from the lodestar amount.
(b) Attendance at IEP Meetings
Portland also objects to seven billing entries totaling $390 (May 1, 15, 21, 29,
and 30, and June 7 and 14, 2013) which reflect plaintiff’s counsel’s attendance at IEP
meetings, reimbursement for which, as discussed above, is prohibited under the IDEA.
ECF No. 38 at 5 (citing 20 U.S.C. § 1415(i)(3)(D)(ii); Regional Sch. Dist. Unit No. 51,
2013 WL 3781491 at *4; Mr. & Mrs. C., 2008 WL 2609362 at *2).
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I agree that the May 2013 billing entries reflect time spent by plaintiff’s
counsel on matters related to an IEP Team meeting, and are, therefore, not
compensable. However, SD argues that two June billing entries—dated June 7 and
14, 2013—are related to “planning for the compensatory summer services the hearing
officer had ordered Defendant to fund for HV,” and therefore are compensable. ECF
No. 39 at 3. I agree that these two items are compensable because they relate directly
to the implementation of the hearing officer’s order.1
Thus, the billing entries covering May 1, 15, 21, 29, and 30, 2013, and the first
billing entry for June 7, 2013, are not allowed because they relate to SD’s
participation in an IEP Team meeting. The billing entries for June 7 (the second
entry reflecting 0.1 hours) and June 14, 2013, are allowed. Accordingly, $330 will be
deducted from the lodestar amount.
(c) Attendance at Mediation Sessions
Portland seeks to strike entries for October 16 and 29, 2012, and November 2,
5, 7, and 9, 2012, which reflect “time spent planning for and attending a mediation
session that was a part of the administrative hearing,” and which total $1,160. ECF
No. 38 at 5-7.
Portland argues that, because the IDEA specifically disallows
attorneys’ fees for participation in the mandatory “Resolution Session” process, the
There are two billing entries dated June 7, 2013. ECF No. 32-3 at 9. The first entry reflects 0.3
hours that plaintiff’s counsel spent reviewing an email message from SD regarding an IEP Team
meeting that took place on May 28, 2013, and reviewing additional email messages regarding an
invoice from the Aucocisco School. Id. Because this first June 7 billing entry does not clearly segregate
the fees related to the IEP Team meeting and the fees related to the discussion of the Aucocisco School
invoice, the entry is not compensable. See Regional School Dist. Unit No. 51, 2013 WL 3781491 at *4.
The second June 7 billing entry reflects 0.1 hours spent by plaintiff’s counsel exchanging email
messages with SD regarding Portland’s payment of the Aucocisco School’s summer invoice. ECF No.
32-3 at 9. This second June 7 billing entry is the one which I find to be compensable.
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same should be true for voluntary mediation sessions. Id. (citing § 1415(i)(3)(D)(iii)).
This argument is noteworthy for its lack of supporting authority, and I decline
Portland’s invitation to expand the IDEA’s narrowly-focused ban on attorneys’ fee
awards for work related to the mandatory Resolution Session, see § 1415(f)(1)(B)(i),
to all IDEA-related mediation. Portland’s citation to the Maine Unified Special
Education Regulation (“MUSER”), § XVI.3(A)(8), is also unhelpful because that
provision does not bar attorneys’ fee awards for mediation-related work.
(d) Non-Attorney Work
Portland also objects to two billing entries for work performed by Joan Kelly,
a “paraprofessional and educational advocate” employed by plaintiff’s counsel, on
October 29 and November 9, 2012 ($100 and $250, respectively). Id. at 7. It argues
that “the time entries make clear that [Kelly was] . . . not performing paralegal work,
but instead [was] preparing for and participating in a mediation as a non-attorney,”
and therefore her time should not be compensable. ECF No. 38 at 7 (citing Arlington
Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) (the IDEA does not
permit recovery of fees for non-attorney experts)).
SD, on the other hand, cites Missouri v. Jenkins by Agyei, 491 U.S. 274, 285
(1989), in which the Supreme Court held that the attorneys’ fee “must take into
account the work not only of attorneys, but also of secretaries, messengers, librarians,
janitors, and others whose labor contributes to the work product for which an
attorney bills her client,” and analogizes this holding to Kelly’s work, arguing that it
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“contributes to the work product of the law firm for the benefit of its clients and . . .
should not be excluded from the lodestar.” ECF No. 39 at 4-5.
Although SD describes Ms. Kelly as a “paraprofessional” and an “educational
advocate,” rather than an expert, ECF No. 32-2 at 5-6, the Supreme Court’s opinion
in Murphy makes clear that the costs related to her services are not authorized under
the IDEA. See Murphy, 548 U.S. at 300 (“the terms of the IDEA overwhelmingly
support the conclusion that prevailing parents may not recover the costs of experts
or consultants.”); accord McAllister v. District of Columbia, 2014 WL 901512, *5, --F.Supp.2d --- (D.D.C. Mar. 6, 2014) (educational advocate found to be a non-attorney
expert whose work was not compensable as paralegal work.).
(2) Motion to Permit Presentation of Additional Evidence
As previously noted above, it is my obligation to subtract “unproductive,
excessive or otherwise unnecessary time” from the lodestar amount. Nkihtaqmikon
v. Bureau of Indian Affairs, 723 F.Supp.2d 272, 287 (D. Me. 2010) (citing Lipsett v.
Blanco, 975 F.2d 934, 937 (1st Cir. 1992)).
On August 5, 2013, SD filed a seven-page Motion to Permit Presentation of
Additional Evidence (ECF No. 11), which was accompanied by a two-page Declaration
of Christopher Kaufman, Ph.D., (ECF No. 11-1) and a three-page declaration of Karen
Neidlinger (ECF No. 11-3). According to plaintiff’s counsel’s billing entries, Attorney
Hellstedt spent 14.5 hours drafting and revising the motion and accompanying
declarations. Portland filed a response in opposition to SD’s motion on August 26
(ECF No. 14), and SD filed a reply brief on September 9 (ECF No. 15). Attorney
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Hellstedt spent 5.4 hours drafting and revising the reply. The total amount billed for
Attorney Hellstedt’s time on this motion was $3,980. When combined with Attorney
O’Meara’s time, the total amount billed for this motion and the related four-page
reply brief was $5,060. I find this to be an excessive amount, and therefore reduce
Attorney Hellstedt’s hours from 19.9 to 12.5, which reduces the amount billed for her
time to $2,500, a reduction of $1,480.
(3) New Lodestar Amount
SD’s proposed lodestar calculation is $69,246, of which I determine that $740
is not compensable and another $1,480 is excessive. Accordingly, the new lodestar
amount is $67,026.
III. ADJUSTMENT FOR DEGREE OF SUCCESS
Portland asks that I award SD only 33% of the lodestar amount “to reflect the
fact that they won on only one year out of the three school years that were in dispute.”
ECF No. 38 at 8. As evidence that SD placed the fifth, sixth, and seventh grade years
in dispute, Portland cites SD’s hearing request, in which she stated that she sought
not only “reimbursement of all costs associated with [HV’s] unilateral placement at
the Aucocisco School” but also that she sought “to have Portland continue to fund his
appropriate placement at Aucocisco going forward . . . .” R. 0004. Portland also cites
SD’s prehearing conference memorandum, in which she stated that all three years
were disputed and that she should “receive reimbursement for the costs incurred with
respect to [HV’s] unilateral placement at the Aucocisco School for 2012-2013 and
beyond, other compensatory relief, and/or any other remedy . . . .” R. 0033.
Additionally, Portland cites the hearing officer’s statement of issues, which lists all
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three years as being in dispute and cites SD’s post hearing argument, in which SD
argues that she is entitled to reimbursement for Aucocisco-related expenses for the
2012-2013 school year and requests “such further compensatory relief for [HV] as [the
hearing officer] may deem necessary to remedy the District’s past violations of the
IDEA.” R. 2492.
I agree that the portions of the administrative record cited by Portland, as well
as SD’s filings in the litigation in this court, make clear that she placed all three
years—HV’s fifth, sixth, and seventh grade years—into dispute. Nevertheless, the
fact that SD only prevailed on the issue of HV’s sixth grade year rather than all three
years is not, considered in isolation, a sufficient reason for reducing the lodestar
amount.
“[T]he court’s rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee. The result is what matters.” Hensley, 461 U.S.
at 435. Accordingly, “it is helpful to identify the relief sought by the plaintiff and
compare it with the relief obtained as a result of the suit.” Maine Sch. Admin. Dist.
No. 35 v. Mr. R., 321 F.3d 9, 15 (1st Cir. 2003) (quotation omitted).
The relief sought by SD was reimbursement of the tuition which she paid for
the two years that HV attended the Aucocisco School. This is stated clearly in SD’s
April 2014 memorandum of law and her June 2014 reply brief.2 ECF No. 22 at 34
(requesting "reimbursement of the costs . . . incurred for HV to be educated [at the
SD’s reliance on Hensley, 461 U.S. at 435, to support her argument that she should receive a full fee
award even though she did not prevail on every contention raised in the lawsuit is inapposite to the
crux of what must be decided here. As explained in Hensley, the fee award to which SD is entitled
ultimately turns on the relief she obtained. Id. at 435 (“the district court should focus on the
significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended
on the litigation.”). This is not a case in which the plaintiff achieved the overall relief she sought
despite prevailing on fewer than all of the contentions she raised.
2
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Aucocisco School] since 2012.”); ECF No. 26 at 10 (requesting “reimbursement of the
expenses associated with his Aucocisco placement from September 2012 forward.”).
As for the relief obtained, the September 19 Order awarded a remedy that fell
somewhat short of what was requested because it awarded reimbursement of
expenses for the 2012-2013 academic year, but not beyond. The order also deducted
the amount previously awarded by the hearing officer: the cost of the six-week
summer program at the Aucocisco School, the two-week literacy tutoring program,
and transportation costs. Therefore, a downward reduction in the lodestar amount
is appropriate.
However, a pro rata, 50% reduction in legal fees would be unjust because SD’s
proof in this case involved psychological testing and events in school that largely
occurred in preceding academic years. In other words, SD had to present to a great
extent the same body of evidence to show that she was entitled to any
reimbursement—either for one year of tuition at Aucocisco, or for both
years. Accordingly, in light of the partially successful result obtained by SD and the
efforts and proof required to achieve that result, I conclude that a reduction in the
lodestar amount is appropriate, but that the 66% reduction in the lodestar amount
suggested by Portland is excessive.
Instead, a more modest 30% reduction
corresponds to the efforts SD undertook to achieve the result she obtained.
IV. REPLY MEMORANDUM IN SUPPORT OF ATTORNEYS’ FEES
AND COSTS
Plaintiff’s counsel requests $1,200 for four hours he spent reviewing and
replying to Portland’s Opposition to SD’s Motion for Attorneys’ Fees and Costs. One
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thousand two hundred dollars for four hours’ work means that plaintiff’s counsel has
applied his normal $300 hourly rate. However, in his declaration which accompanied
the original attorneys’ fee motion, Attorney O’Meara indicated that he applied a $200
hourly rate to his work on the motion. Therefore, the appropriate reimbursement for
Attorney O’Meara’s time spent working on the reply memorandum is $800 ($200 per
hour times four hours).
V. CONCLUSION
For the reasons discussed above, SD’s Motion for Attorneys’ Fees and Costs
(ECF No. 32) is GRANTED IN PART.
The total award of fees and costs is
$49,574.50, reflecting an adjusted lodestar figure of $46,918.20, plus costs of
$1,856.30 (the original requested amount minus $5.50 in travel expenses for Ms.
Kelly), plus $800 for work on SD’s reply in support of attorneys’ fees (ECF No. 39).
SO ORDERED.
Dated: December 11, 2014
/s/ Jon D. Levy
U.S. DISTRICT JUDGE
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