M.D. et al v. New York City Department of Education
Filing
66
OPINION AND ORDER re: 17 MOTION for Summary Judgment filed by R.L. (parent), R. L., J. T. For the reasons stated above, R.L. and J.T.'s motion for summary judgment is GRANTED to the extent that it seeks an award of fees and costs related to the underlying administrative proceedings. In particular, R.L. is awarded a total of $29,378.12 in fees and costs and J.T. is awarded a total of $48,602.11 in fees and costs. That leaves Plaintiffs' request for fees in connection with the bringing of this action, commonly known as "fees on fees." (Compl. 5). After originally informing the Court that they would submit a "final invoice" reflecting any fees on fees with their reply papers (Sterne Decl. Paragraph 10), Plaintiffs took it upon themselves to defer once again, "elect[ing] to wait for the Court's decision on the administrative fees," (Docket No. 56 ("Cuddy Reply Decl.") at Paragraph 26). The Court therefo re defers ruling on Plaintiffs' motion for summary judgment to the extent that it requests an award of fees on fees. Instead, within two weeks of the date of this Opinion and Order, Plaintiffs shall file a supplemental application for any such fees, in the form of a letter not to exceed three pages supported by contemporaneous billing records and other appropriate documentation. The DOE shall file any opposition, in the form of a letter brief not to exceed three pages, within ten business days of Plaintiffs' submission. The Clerk of Court is directed to terminate Docket No. 17 and M.D. as a party. SO ORDERED. M. D. (individually) and M. D. (on behalf of E.G., a child with a disability) terminated. (Signed by Judge Jesse M. Furman on 9/14/2018) (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
M.D., individually and on behalf of E.G., a child with a :
disability; J.T., individually and on behalf of J.R.T., a
:
child with a disability; R.L. (parent), individually and on :
behalf of R.L. (child), a child with a disability,
:
:
Plaintiffs,
:
:
-v:
:
NEW YORK CITY DEPARTMENT OF EDUCATION, :
:
Defendant.
:
:
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09/14/2018
17-CV-2417 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
In this action, Plaintiffs J.T. and R.L. seek attorney’s fees and costs from the New York
City Department of Education (the “DOE”) pursuant to the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3).1 Plaintiffs now move, pursuant to Rule 56 of
the Federal Rules of Civil Procedure, for summary judgment. (Docket No. 17). Specifically,
J.T. seeks $72,581.50 in fees and $3,005.15 in costs, and R.L seeks $44,805 in fees and
$1,782.92 in costs. Each Plaintiff also seeks “fees on fees” in connection with the bringing of
this action. For the reasons that follow, their motion for fees related to the administrative
proceedings is granted, but their awards are fixed at less than the amounts requested. The Court
defers ruling on the request for fees on fees pending further submissions from the parties.
1
A third Plaintiff, M.D., settled. (See Docket No. 32, at 1). Accordingly, her claims are
dismissed.
BACKGROUND
The relevant facts, taken from the Complaint and admissible materials submitted in
connection with the pending motion, are either undisputed or construed in the light most
favorable to the DOE. See Excelled Sheepskin & Leather Coat Corp. v. Or. Brewing Co., 897
F.3d 413, 420 (2d Cir. 2018). J.T. and R.L. are the parents of J.R.T. and R.L., respectively,
minors who, during the period relevant to this action, were classified as children with disabilities
within the meaning of the IDEA. (Docket No. 1 (“Compl.”) ¶¶ 7-8; Docket No. 31 (“Pls.’ Rule
56.1 Statement”) ¶ 3). Acting on their respective child’s behalf, each Plaintiff initiated impartial
due process hearings alleging that the DOE had failed to provide a “free appropriate public
education” within the meaning of the IDEA to the child and seeking appropriate remedies. (Pls.’
Rule 56.1 Statement ¶¶ 7, 11., Compl. ¶¶ 16, 20) In each case, J.T. and R.L. obtained at least
partial relief through the hearings. (Docket No. 11 (“Answer”) ¶¶ 19, 23; Docket No. 52-1
¶¶ 10, 14). Thereafter, Plaintiffs sued the DOE seeking attorney’s fees and costs for each
administrative proceeding, as well as attorney’s fees and costs associated with bringing this
action (“fees on fees”). They now move for summary judgment on those claims.
APPLICABLE LEGAL PRINCIPLES
Congress enacted the IDEA “to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related services
designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). To that end, the IDEA
guarantees children with disabilities and their parents certain procedural rights, including the
right to seek relief from local educational agencies at an “impartial due process hearing.” Id.
§ 1415(f). A court may award “reasonable attorneys’ fees” and costs to a parent who is the
“prevailing party” at such a hearing. 20 U.S.C. § 1415(i)(3)(B)(i). Such an award may cover
2
work performed in connection with the hearing; before the district court; and on appeal from the
district court. See, e.g., C.D. v. Minisink Valley Cent. Sch. Dist., No. 17 CIV. 7632 (PAE), 2018
WL 3769972, at *3 (S.D.N.Y. Aug. 9, 2018) (citing cases).
Summary judgment is appropriate where the admissible evidence and the pleadings
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); see Estate of Gustafson ex rel. Reginella v. Target Corp.,
819 F.3d 673, 675 (2d Cir. 2016). A dispute over an issue of material fact qualifies as genuine
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of
Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). In ruling on a motion for summary judgment, all evidence must be viewed
“in the light most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military &
Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must “resolve all ambiguities and
draw all permissible factual inferences in favor of the party against whom summary judgment is
sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.
2004). Affidavits submitted in support of, or opposition to, summary judgment must be based on
personal knowledge, must “set forth such facts as would be admissible in evidence,” and must
show “that the affiant is competent to testify to the matters stated therein.” Patterson v. Cty. of
Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (quoting Fed. R. Civ. P. 56(e)).
DISCUSSION
In considering a claim for attorney’s fees under the IDEA, “a district court must
ordinarily make two determinations. It must first determine whether the party seeking the award
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is in fact a prevailing party” and, second, whether that party should be awarded attorney’s fees
and costs “under the appropriate standard.” Mr. L. v. Sloan, 449 F.3d 405, 407 (2d Cir. 2006).
Here, however, there is no dispute that Plaintiffs qualify as “prevailing” parties within the
meaning of the IDEA. Thus, the sole question is whether and to what extent Plaintiffs should be
awarded fees and costs under the appropriate standard. The DOE contends that the Court should
deny Plaintiffs’ requests in their entirety because, when seeking a settlement of their claims, they
submitted bills to the DOE reflecting both higher total hours and higher hourly rates. (Docket
No. 47 (“DOE Mem.”), at 23-24). In the alternative, the DOE argues that Plaintiffs should
receive less than they seek because their proposed hourly rates and total billable hours are
unreasonably high and they did not obtain all the relief they sought at their hearings. (Id. at 423). The Court will address each of these arguments in turn.
As an initial matter, the Court is unpersuaded by the DOE’s argument that Plaintiffs
should be denied all relief because they initially requested a larger amount in settlement
negotiations than they seek in this action. In settlement negotiations with the DOE, Plaintiffs
initially submitted bills reflecting $55,367.58 in total fees and costs for the R.L. matter and
$90,476.57 for the J.T. matter. (Docket No. 48 (“Goldman Decl.”) at ¶¶ 3-4; id. Exh. A at 1; id.
Exh. B at 1). Those bills reflected each attorney’s full billable rates and, in the case of J.T.,
included time entries for hours billed before January 19, 2016. (See Docket No. 19 (“Cuddy
Decl.”), ¶ 52; Docket No. 20 (“Arkontaky Decl.”), ¶¶ 25, 39). In their motion here, Plaintiffs
submit bills reflecting substantially discounted rates and with the pre-January 19 time on the J.T.
bill “zeroed out” — both changes that Plaintiffs’ counsel purportedly made “as a matter of
discretion.” (Cuddy Decl. ¶ 54-56; Arkontaky Decl. ¶¶ 36-40). Substantial as it may be, the
contrast between Plaintiffs’ opening settlement demand and their self-imposed haircut here is no
4
reason to deny their fee requests altogether. Within the bounds of their ethical obligations, see
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983), counsel negotiating settlement of a fee claim in
the shadow of a court’s highly discretionary fee-shifting authority may propose (or accept) an
amount different than what a court might ultimately award. Likewise, a party suing for a fee
award might reduce the amount sought for reasons of litigation strategy and not because it knows
the amount originally sought in settlement negotiations was “inflated.” (DOE Mem. 23). In any
event, whatever strategic considerations shape a party’s fee application, once an application is
filed the Court’s task is to decide it and fix the award in accordance with applicable law.
Thus, the Court turns to what fees and costs are “reasonable.” Hensley, 461 U.S. at 433.
Because courts are to interpret the IDEA’s fee-shifting provision “in consonance” with those of
other federal civil rights fee-shifting statutes, A.R. ex rel. R.V. v. N.Y.C. Dep’t of Educ., 407 F.3d
65, 73 & n.9 (2d Cir. 2005) (internal quotation marks omitted), the relevant inquiry is well
established. “[A] ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to
undertake the representation of a meritorious civil rights case.” Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 552 (2010). “The initial estimate of a reasonable attorney’s fee is properly
calculated by multiplying the number of hours reasonably expended on the litigation times a
reasonable hourly rate,” Blum v. Stenson, 465 U.S. 886, 888 (1984), resulting in a figure often
referred to as the “lodestar,” but which the Second Circuit prefers to call the “presumptively
reasonable fee,” Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany & Albany
Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). “Adjustments to that fee then may be
made as necessary in the particular case,” Blum, 465 U.S. at 888, although because the
calculation’s twin inputs already account for “most, if not all” of the relevant factors, the
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presumption that the lodestar represents a reasonable fee award is especially strong, Perdue, 559
U.S. at 552-53, and departures from that figure will be “rare,” id. at 554.
A “reasonable hourly rate” is defined as “the rate a paying client would be willing to
pay.” Arbor Hill, 522 F.3d at 190. In calculating such a rate, a court should “bear in mind all of
the case-specific variables that . . . courts have identified as relevant.” Id. Those variables
include the so-called Johnson factors, to wit:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the
level of skill required to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the attorney’s customary
hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by
the client or the circumstances; (8) the amount involved in the case 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 relationship
with the client; and (12) awards in similar cases.
Id. at 186 n.3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974)). A court “need not recite and make separate findings as to all twelve Johnson factors,
provided that it takes each into account in setting the attorneys’ fee award.” C.D., 2018 WL
3769972, at *4 (internal quotation marks omitted). Moreover, in determining the “reasonable
hourly rate,” district courts have “considerable discretion.” Arbor Hill, 522 F.3d at 190.
Upon consideration of all the Johnson factors, the Court concludes that Plaintiffs’
proposed hourly rates — $450 for senior attorneys, $350 for mid-level attorneys, $250 for junior
attorneys, and $150 for paralegals — are somewhat excessive. (See Cuddy Decl. Ex A at 1;
Arkontaky Decl. Ex. A at 1).2 “[C]ourts should generally use the hourly rates employed in the
2
Plaintiffs submit declarations purporting to explain that the rates they propose are
actually lower than each attorney’s respective “sticker price,” (Cuddy Decl. ¶¶ 54-55; Arkontaky
Decl. ¶¶ 36-37), but they provide insufficient evidence about the context in which those rates
were collected (Cuddy Decl. ¶¶ 52; Arkontaky Decl. ¶ 25), and in one instance omit any
declaration that fees were collected at those rates in any case (Arkontaky Decl. ¶ 25).
6
district in which the reviewing court sits in calculating the presumptively reasonable fee,”
Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotation
marks omitted), including by taking “judicial notice of the rates awarded in prior cases,”
Farbotko v. Clinton Cty. of New York, 433 F.3d 204, 209 (2d Cir. 2005). In K.L. v. Warwick
Valley Central School District, No. 12-CV-6313 (DLC), 2013 WL 4766339 (S.D.N.Y. Sept. 5,
2013), a judge in this District concluded that — as of 2013 — courts in the Southern District
“consistently award fees” for such attorneys in a “range of $300 to $400 or $450 per hour.” K.L.,
2013 WL 4766339, at *7 (collecting cases). More recently, another judge in this District found a
slightly higher range of “between $350 and $475 per hour” for “experienced attorneys in IDEA
fee-shifting cases.” C.D., 2018 WL 3769972, at *6; see id. at *6-*7 (awarding $400 per hour to
senior attorneys, $300 per hour to an experienced lawyer who began doing IDEA work in 2012,
and $125 per hour to experienced paralegals); B.B. v. N.Y.C. Dep’t of Educ., No. 17-CV-4255
(VEC), 2018 WL 1229732, at *2 (S.D.N.Y. Mar. 8, 2018) (awarding $350 per hour to an
attorney in an IDEA action where “the underlying administrative action involved relatively
minimal effort, and involved a brief, uncontested hearing resulting in limited success beyond that
conceded by the Defendant”). Based on those data points, and an assessment of the facts of this
case, the Court finds that hourly rates of $360 for senior attorneys, $280 for mid-level associates,
$200 for junior associates, and (with one exception) $120 for paralegals are reasonable in this
case.3 Further, to the extent that Plaintiffs have not imposed a discount themselves (compare
Accordingly, the Court declines to rely on Plaintiffs’ counsel’s “sticker prices” as a starting point
in the analysis of a reasonable hourly rate. See C.D., 2018 WL 3769972, at *6 n.9.
3
The one exception is for two hours billed by Daisy Cruz. Plaintiffs “bear[] the burden of
providing evidence to support [their] fee application, including as to the timekeeper’s relevant
qualifications,” but fail to carry that burden with respect to Daisy Cruz. C.D., 2018 WL
3769972, at *7. In the absence of evidence that a timekeeper “had anything beyond entry-level
qualifications,” courts “typically award fees at the bottom of the customary fee range.” Id.
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Cuddy Decl. Ex. A at 1, with Arkontaky Decl. Ex. A), the Court will compensate for only 50%
of those hourly rates for travel time, in accordance with standard practice. See C.D., 2018 WL
3769972, at *10.
In arriving at those rates, the Court rejects the DOE’s arguments for even greater
reductions. The DOE suggests that the second Johnson factor — the “novelty and difficulty of
the questions” — deserves special weight, arguing that reasonable hourly rates in this case
should turn primarily on the “uncomplicated and straightforward” nature of the administrative
hearings. (DOE Mem. 5, see also id. at 4 n.2, 9-12). “[U]ncomplicated and straightforward”
tasks, however, still require the attention of a skilled attorney, who owes his or her client the
duties of “thoroughness” and “diligence.” N.Y. Rules of Prof’l Conduct 1.1(a), 1.3(a).
Moreover, if it is reasonably necessary for an attorney to spend an hour devoted to a particular
task — a question best left, in the first instance, to that attorney’s professional judgment — then
that hour must be compensated at the reasonable hourly rate. The Court notes, too, that the
fourth Johnson factor focuses on the opportunity cost of an attorney’s time, sensibly recognizing
that the market rate foregone by an hour spent on a given task does not vary with the task’s
complexity. See Arbor Hill, 522 F.3d at 186 n.3. In fact, insofar as a reasonable fee must be
“sufficient to induce a capable attorney to undertake the representation of a meritorious civil
rights case,” Perdue, 559 U.S. at 552 (emphasis added), if any of the Johnson factors were
deserving of disproportionate weight, the fourth would be a stronger candidate than the second.
The DOE also argues that the Court should essentially adopt the rates awarded in K.L.,
quoting at length from Judge Cote’s opinion in that case and urging that the award in K.L.
Thus, for the two hours billed by Daisy Cruz, the Court will apply an hourly rate of $100, which
is at the bottom end of the range for paralegals in this District. See id.
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represents a reasonable fee “where the impartial hearing below was uncomplicated.” (DOE
Mem. 7). The K.L. decision, however, is five years old. Moreover, in K.L., the parties had
reached an “early settlement,” 2013 WL 4766339 at *8, which was then “so ordered” by the
impartial hearing officer two days later, id. at *3. Even if the DOE were correct that Plaintiffs
faced “zero opposition from the DOE before and at the impartial hearing[s]” in this case (DOE
Mem. 1-2), that would still stand in stark contrast to the pre-hearing settlement in K.L.
Moreover, construing the facts in the light most favorable to the DOE, it is clear that the DOE’s
failure to settle either claim before a hearing required Plaintiffs to prepare as though the hearings
would be decisive of their allegations — which they were. As the impartial hearing officer noted
on the record at R.L.’s hearing, if the DOE believed that its lack of meaningful opposition to
R.L.’s request should justify a diminished fee award, it could have dropped its formal opposition
to R.L.’s claim. (Docket No. 57 (“Aasen Decl.”) Ex. A, at 6-7). Instead, the DOE forced
Plaintiffs to litigate both claims in administrative hearings. Id. at 7. If, as the DOE argues,
“these two cases were entirely indefensible for the DOE,” (DOE Mem. 10), there was all the
more reason for DOE to settle, rather than litigate, claims they could not meaningfully defend.
In light of the purpose of the IDEA’s fee-shifting provision, the fact that the DOE’s positions
were concededly “indefensible” — or, looked at another way, that Plaintiffs’ were especially
“meritorious,” Perdue, 559 U.S. at 552 — supports a higher hourly rate, not a lower one.
The Court turns, then, to the number of “hours reasonably expended.” Hensley, 461 U.S.
at 433. To arrive at that number, a district court looks to the “contemporaneously created time
records that specify, for each attorney, the date, the hours expended, and the nature of the work
done.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998). The court must then
exclude “hours that are excessive, redundant, or otherwise unnecessary,” id. (internal quotation
9
marks omitted), and may reduce the number of compensable hours “for vagueness,
inconsistencies, and other deficiencies in the billing records,” id. All the same, “[a] request for
attorney’s fees should not result in a second major litigation,” Hensley, 461 U.S. at 437, not the
least because lengthy fee-award proceedings undermine the purpose of fee-shifting statutes by
“increas[ing] the costs to plaintiffs of vindicating their rights,” id. at 442 (Brennan, J., concurring
in part and dissenting in part). Accordingly, “trial courts need not, and indeed should not,
become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do
rough justice, not to achieve auditing perfection. So trial courts may take into account their
overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.”
Fox v. Vice, 563 U.S. 826, 838 (2011). Rather than engage in a painstaking line-item review of
each billing entry, in calculating an appropriate reduction of compensable hours “[a] district
court may exercise its discretion and use a percentage deduction as a practical means of
trimming fat from a fee application.” McDonald ex rel. Prendergast v. Pension Plan of the
NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (internal quotation marks omitted).
In accordance with these standards, the DOE seek a 50% reduction in compensable hours
(DOE Mem. 22), arguing that Plaintiffs overstaffed these cases at the administrative level;
engaged in excessive and duplicative billing for unnecessary activities, including clerical work;
and improperly seek compensation for activities after the favorable administrative decisions.
(DOE Mem. 12-22). Based on a review of the parties’ submissions and consideration of the
DOE’s arguments, the Court concludes that a reduction — but a more modest one, of 20% — is
appropriate in this case.4 The Court reaches that conclusion based primarily on its review of
4
In addition, the Court finds that only one hour of the trip between Plaintiffs’ counsel’s
offices in Auburn, New York, to the proceedings in this district is reasonably compensable, and
10
Plaintiffs’ evidentiary submissions, which support a modest percentage reduction “as a practical
means of trimming fat.” In addition, the Court is persuaded by certain of the DOE’s arguments
that Plaintiffs could have staffed and litigated these cases more leanly — but only up to a point.
The Court is not persuaded, for example, that Plaintiffs’ time entries relating to post-hearing
briefing are wholly unreasonable. (DOE Mem. 16-18). As R.L.’s hearing officer pointed out,
Plaintiffs’ post-hearing briefs were necessary only because the DOE refused to settle what it now
concedes were “indefensible” claims, (Aasen Decl. Ex. A, at 6-7; DOE Mem. 10), forcing
Plaintiffs to litigate the hearings to a conclusion. If the DOE wanted to avoid a fee award for the
time spent producing a post-hearing brief in these “indefensible” cases, it had better options than
waiting to oppose Plaintiffs’ fee motion. Nevertheless, the Court concludes that Plaintiffs’ posthearing time entries are somewhat excessive, especially given that Plaintiffs’ post-hearing briefs
repeated material included in earlier filings and that the modest amount of “fat” in those entries,
among others, supports a correspondingly modest reduction in compensable hours.
In addition, the Court rejects the DOE’s argument that Plaintiffs’ post-decision billing
entries reflect work that was not “related to achieving prevailing party status” and should
therefore be categorically excluded from any fee award. (DOE Mem. 20-21). For that
proposition, the DOE cites Buckhannon Board & Care Home, Inc. v. West Virginia Department
of Health & Human Resources, 532 U.S 598, 600 (2001). But Buckhannon held only that a
“judicially sanctioned change in the legal relationship of the parties” is necessary to confer
prevailing-party status on the winner — not that any resulting fee award must be cut off at the
moment prevailing-party status is attained. Id. at 605. Indeed, the bulk of persuasive authority
will reduce the compensable hours for the two such trips taken in the R.L. case (see Cuddy
Decl. Ex. A at 11-12) to one hour in each direction. See C.D., 2018 WL 3769972, at *10.
11
cuts the other way: Generally, post-decision activities that are “useful and of a type ordinarily
necessary to secure the final result obtained from the litigation” are compensable in the case of a
statutory fee award. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546,
561 (1986) (internal quotation marks omitted); see also Binta B. ex rel. S.A. v. Gordon, 710 F.3d
608, 620-25 (6th Cir. 2013); Prison Legal News v. Schwarzenegger, 608 F.3d 446, 452 (9th Cir.
2010); Johnson v. City of Tulsa, Okla., 489 F.3d 1089, 1102-11 (10th Cir. 2007). That rule
makes good sense in light of the Supreme Court’s emphasis on maintaining the “relationship
between the amount of the fee awarded and the results obtained,” Hensley, 461 U.S. at 437 —
favorable decisions are often not self-executing, and where a client requires some amount of
additional monitoring, enforcement, or litigation to assure that a favorable result amounts to
more than a paper victory, a fee award should account for the attorney time reasonably necessary
to “secure[] [the plaintiff’s] initial success.” Del. Valley, 478 U.S. at 558.
In this case, counsel’s limited post-decision activities — which included correspondence
and meetings with their clients and with the DOE, and other minor tasks related to implementing
the administrative orders (Cuddy Decl. Ex. A at 16-18; Arkontaky Decl. Ex. A at 16-19) — were
largely “useful and of a type ordinarily necessary to secure the final result[s] obtained” in the
impartial due process hearings. Del. Valley, 478 U.S. at 561. Under the circumstances, it was
reasonable for that limited amount of work to be conducted by attorneys and their paralegal staff.
The Court therefore rejects the DOE’s invitation to exclude all post-decision billing from
Plaintiffs’ request.
Finally, the DOE argues that Plaintiffs’ fee award should be reduced “due to limited
success.” (DOE Mem. 22). The “most critical factor in determining the reasonableness of a fee
award” is indeed “the degree of success obtained by plaintiffs’ counsel.” C.D., 2018 WL
12
3769972, at *11 (internal quotation marks omitted) (citing Farrar v. Hobby, 506 U.S. 103, 114
(1992); Kassim v. City of Schenectady, 415 F.3d 246, 255 (2d Cir. 2005). Nevertheless, the
Court has no trouble rejecting the DOE’s argument. The DOE highlights minor shortfalls in
Plaintiffs’ efforts to obtain relief for their children (see DOE Mem. 22-23), but even when
construed in the light most favorable to the DOE, those shortcomings appear pitifully small in
comparison to the “quantity and quality of relief obtained” in each administrative decision.
Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008). (See Docket No. 18
(“Sterne Decl.”) Ex. E at 11-12; Sterne Decl. Ex. H at 18-19). Once again, if anything, the
degree of success obtained supports a higher rather than a lower fee award — and, thus, the
Court declines to reduce the award on that basis.
That leaves the matter of costs and expenses. Generally, “[t]he term ‘costs’ includes
costs incurred in connection with work yielding fees covered by a fee award, as well as the
specific types of costs set out in 28 U.S.C. § 1920, the general provision governing the taxation
of costs in federal court.” C.D., 2018 WL 3769972, at *4. “Attorney’s fees awards include
those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their
clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (internal quotation
marks omitted); cf. Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir. 1987) (“Identifiable, out-ofpocket disbursements for items such as photocopying, travel, and telephone costs are generally
taxable under [42 U.S.C.] § 1988.”). Here, the DOE does not address Plaintiffs’ requested costs
or expenses, and the Court sees no basis to conclude that they are unreasonable or beyond what
attorneys “ordinarily charge[] to their clients.” LeBlanc-Sternberg, 143 F.3d at 763.
Accordingly, Plaintiffs are awarded their proposed costs in full.
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In sum, the Court will award Plaintiffs a total of $1,782.92 in costs for the R.L matter,
along with $27,595.20 in attorney and paralegal fees — representing a 20% discount from their
proposed hourly billing rates and proposed billable hours, respectively, except for Nina Aasen’s
proposed billable travel time (ten hours), which will be reduced to one compensable hour per
trip. The Court will also award Plaintiffs a total of $3,005.15 in costs for the J.T. matter, along
with $45,596.96 in attorney and paralegal fees — representing the same discounts in fees and
hours as for the R.L. matter, except for the hours attributed to Daisy Cruz, the compensable
portion of which (80%, or 1.6 hours) will be awarded at an hourly rate of $100, and the proposed
billable travel time attributable to Kerry McGrath (eight hours) and Linda Adair (4.2 hours),
which the Court will award at a further 50% discount from Plaintiffs’ proposed rates.
CONCLUSION
For the reasons stated above, R.L. and J.T.’s motion for summary judgment is
GRANTED to the extent that it seeks an award of fees and costs related to the underlying
administrative proceedings. In particular, R.L. is awarded a total of $29,378.12 in fees and costs
and J.T. is awarded a total of $48,602.11 in fees and costs.
That leaves Plaintiffs’ request for fees in connection with the bringing of this action,
commonly known as “fees on fees.” (Compl. 5). After originally informing the Court that they
would submit a “final invoice” reflecting any fees on fees with their reply papers (Sterne Decl.
¶ 10), Plaintiffs took it upon themselves to defer once again, “elect[ing] to wait for the Court’s
decision on the administrative fees,” (Docket No. 56 (“Cuddy Reply Decl.”) at ¶ 26).5 The Court
5
Although Plaintiffs’ delay in seeking fees on fees may have been well intended,
considerations of judicial economy and the federal fee-shifting-statutes’ strong policy against
protracted litigation will generally favor consideration of fees on fees with an award of fees for
the underlying proceedings. Plaintiffs’ counsel notes that he delayed submitting documentation
for the fees-on-fees request “so as to inform [himself] as to the ‘haircut’” he would then
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therefore defers ruling on Plaintiffs’ motion for summary judgment to the extent that it requests
an award of fees on fees. Instead, within two weeks of the date of this Opinion and Order,
Plaintiffs shall file a supplemental application for any such fees, in the form of a letter not to
exceed three pages supported by contemporaneous billing records and other appropriate
documentation. The DOE shall file any opposition, in the form of a letter brief not to exceed
three pages, within ten business days of Plaintiffs’ submission.
The Clerk of Court is directed to terminate Docket No. 17 and M.D. as a party.
SO ORDERED.
Dated: September 14, 2018
New York, New York
__________________________________
JESSE M. FURMAN
United States District Judge
proactively apply to the fees-on-fees invoice (Cuddy Reply Decl. ¶ 26), but there is no reason to
assume (and the Court does not assume) that the same “haircut” should apply to an underlying
fee award and a fees-on-fees award. Cf. C.D., 2018 WL 3769972 at *11 (applying the same
“haircut” to the hourly rates, but not the total hours, in the fees-on-fees award as in the
underlying fee award); K.L., 2013 WL 4766339, at *13-14 (applying a substantial reduction to
the underlying fee award, and awarding no fees on fees at all). An attorney’s obligation in
seeking fees on fees is the same as with any other fee motion: to exercise “good faith . . . billing
judgment” in preparing the request. Hensley, 461 U.S. at 434 (internal quotation marks omitted).
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