THE SCHOOL DISTRICT OF PHILADELPHIA v. KIRSCH et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 1/11/17. 1/11/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SCHOOL DISTRICT OF
ROBERT KIRSCH and KAREN MISHER,
Parents of A.K., a minor
SCHOOL DISTRICT OF
ROBERT KIRSCH and KAREN MISHER,
Parents of N.K., a minor
January 11, 2017
Now before me in these consolidated civil actions 1 are motions by defendants Robert
Kirsch and Karen Misher, parents of twin siblings A.K. and N.K seeking attorney’s fees and
costs pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§ 1415(i)(3)(B), the Rehabilitation Act of 1973, 29 U.S.C. § 794a, and the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12205. Civ. A. 14-4910, Dkt. No. 48; Civ. A. 14-4911,
Dkt. No. 36. Also before me are plaintiff the School District of Philadelphia’s responses in
opposition. 2 Civ. A. 14-4910, Dkt. No. 57; Civ. A. 14-4911, Dkt. No. 45. I will grant parents’
motions in part for the reasons that follow.
Because of parallels between the documents filed in Civ. A. 14-4910 and Civ. A.
14-4911, citations to docket entries in this Opinion will be to documents docketed in Civ. A. 144910 unless otherwise noted.
Parents did not file replies.
A.K. and N.K. are twin minors with autism. These actions arise out of a Pennsylvania
Special Education Due Process Hearing Officer’s July 2014 decisions regarding the twins’
educational placements. On November 30, 2015, I affirmed the Hearing Officer’s decisions and
granted in part and denied in part the parties’ cross motions for judgment on the administrative
record. Dkt. Nos. 29, 30. The District’s motion was granted insofar as it sought to affirm the
Hearing Officer’s decisions that the District offered A.K. and N.K. a “free appropriate public
education,” or FAPE, under the Individuals with Disabilities Education Act (IDEA) in December
2013. 20 U.S.C. § 1400(d)(1)(A). See Dkt. No. 30. The District’s motion was denied insofar as
it sought to reverse the Hearing Officer’s decisions that the District was obligated to reimburse
parents for the basic costs of tuition and transportation at the private school for A.K. and N.K.
from September 2013 through December 2013. Id. Parents’ motion was granted insofar as
parents sought to affirm the Hearing Officer’s decisions that the District denied A.K. and N.K. a
FAPE from the start of the 2013-14 school year through December 2013 and insofar as parents
sought to affirm the Hearing Officer’s decisions that A Step Up Academy (ASUA) was an
appropriate private placement for A.K. and N.K. Id. Parents’ motion was denied insofar as they
sought to reverse the Hearing Officer’s decisions that the District offered A.K. and N.K. a FAPE
in December 2013. Id.
Additionally, the District’s motion to dismiss parent’s counterclaims or, in the alternative,
for summary judgment was granted both to the extent that the District sought judgment in its
favor with respect to parents’ claim that the District denied A.K. and N.K. a FAPE with its
offered 2014-15 individualized education plans (IEPs) and to the extent that the District sought
judgment in its favor with respect to parents’ counterclaims under the Americans with
Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Id.
I also held that “under the stay-put provision” of IDEA, 20 U.S.C. § 1415(j), “the District
is obligated to fund the twins’ education at ASUA for the entirety of the 2013-14 school year
even though the Hearing Officer also found that the District offered the twins a FAPE in
December 2013.” Dkt. No. 22 at ECF p. 37. I found that “as with the 2013-14 school year,
under IDEA’s stay put provision . . . parents are entitled to tuition reimbursement for the 201415 school year even if the IEPs offered by the District for 2014-15 provided the twins with a
FAPE.” Id. at ECF p. 41. Finally, “I agree[d] with parents that IDEA’s stay put provision
obligates the District to continue to reimburse parents for the twins’ tuition until their claims
with respect to the 2013-14 and 2014-15 school years are resolved.” Id. at ECF p. 45.
Accordingly, the District was ordered “to reimburse parents for the basic costs of A.K. and
N.K.’s tuition and transportation at A Step Up Academy from September 2013 to December
2013” and “to reimburse parents for the basic costs of A.K. and N.K.’s tuition and transportation
at A Step Up Academy from December 2013 through the exhaustion of all appeals from the
decisions of the Hearing Officer.” Dkt. No. 30.
The Court directed the parties to confer and reach a stipulation with respect to the
amounts due to parents, id., but they were unable to do so. Thereafter, I referred the parties’
motions regarding the form and amount of a judgment to be entered, Dkt. No. 32, Dkt. No. 33, to
Magistrate Judge Carol Sandra Moore Wells for a report and recommendation. Dkt. No. 34.
Citing the stay-put provision, Judge Wells made the following findings of fact with respect to the
amounts of basic tuition due for each child: (1) $35,000.00 for the 2013-14 school year; (2)
$7,250.00 for the 2014 extended school year (ESY); (3) $35,000.00 during the 2014-15 school
year; (4) $7,650.00 for ESY 2015; (5) $40,000.00 to cover the 2015-16 school year; and (6)
$8,300.00 for ESY 2016. Dkt. No. 42 at ECF p. 2-3. Additionally, she found that
“transportation costs for the 2013-14, 2014-15 and 2015-16 school years are $3,201.68.” Id. at
ECF p. 3. She then recommended that any award to parents be reduced by $44,633.00 – the
amount of Bravo Foundation scholarships awarded to A.K. and N.K. Id. at ECF p. 5. Judge
Wells ultimately recommended that parents’ motion for entry of judgment be granted and that
judgment be entered in their favor in the amount of $227,788.68. Dkt. No. 42. On June 1, 2016,
I entered judgment in favor of parents and against the District in the recommended amount. See
Dkt. No. 46.
Under 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 ADA and Section 504 also provide for an award of fees and costs to
prevailing parties. See 42 U.S.C. § 12205; 29 U.S.C. § 794a(b). The lodestar formula, which
multiplies by a reasonable hourly rate the number of hours reasonably expended, provides the
starting point for determining reasonable attorneys’ fees. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); see also Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). Parents seek an
award of attorneys’ fees and costs in the total amount of $289,694.63 as prevailing parties in the
administrative proceedings below and in the present civil actions. They ask for an award to
Reisman Carolla Gran LLP for its work on the federal civil action of $89,240.10 in fees and
$1,185.86 in costs, a total of $90,425.96. For the administrative proceedings for both A.K. and
N.K., parents ask for an award to the Law Offices of Caryl Andrea Oberman of $196,517.00 for
fees and $2,751.73 for costs, a total of $199,268.73. Dkt. No. 48 at ECF p. 5-6.
In response to parents’ motions, the District summarizes the fees billed by parents’
attorneys in a table as follows:
Summary of Lodestar
A.K – Due Process Hearing
Maureen Stankiewicz, Paralegal
Heike Ross, Paralegal
N.K. – Due Process Hearing
Maureen Stankiewicz, Paralegal
Heike Ross, Paralegal
Total – Due Process Hearing
Federal Civil Action
Catherine Merino Reisman
Grand Total 589.025
The District contends that the “[r]easonable attorney’s fees to be awarded should not exceed
$65,063.25 for the services rendered by the Law Offices of Caryl Oberman for the administrative
proceeding ($86,751 reduced by 25%) and $64,580.55 for the services rendered by Reisman,
Carolla, Gran for the federal civil action, for a total of $129,643.80.” Dkt. No. 57 at ECF p. 22.
It concedes that parents “may be entitled to a discretionary award of reimbursement for
Yazno-Bartle’s declaration identifies Ross as a “Legal Assistant,” not a paralegal.
Dkt. No. 48-1 at ECF p. 3.
In her declaration, Yazno-Bartle asserts that she “spent a total of 249 hours
working on this matter.” Dkt. No. 48-1 at ECF p. 4. Based on her billing records, however, her
declaration does not appear to take into account the amount of time she billed on the matter for
reasonable attorney’s fees under IDEA” and “does not dispute that parents were the prevailing
parties in the administrative proceeding and in the federal civil action to a partial degree . . . .”
Id. at ECF p. 3. However, it opposes parents’ motion on the grounds “that the hourly rates of the
attorneys are unreasonable [and] the claimed hours spent are duplicative, excessive and
unnecessary . . . .” Id. It also argues that “the copying costs and travel expenses [which parents
seek to recover] are not authorized by law.” Id. Additionally, the District objects to parents’
attempt to recover “the federal court filing fees because the parents’ litigation strategy was to
remove the petitions for review filed in the Commonwealth Court to federal court.” Id.
Where an “adverse party raises objections to [a] fee request, the court possesses
considerable discretion to adjust the award in light of those objections.” Loesch v. City of Phila.,
No. 05–0578, 2008 WL 2557429, at *2 (E.D. Pa. Jun. 25, 2008), citing Rode v. Dellarciprete,
892 F.2d 1177, 1183 (3d Cir. 1990). I will consider the District’s arguments in turn.
The District challenges the reasonableness of parents’ attorneys’ hourly rates. 5 A
reasonable hourly rate is calculated “based on rates prevailing in the community in which the
action or proceedings arose for the kind and quality of services furnished.” 20 U.S.C.
§ 1415(i)(3)(C); see also M.M. v. Sch. Dist. of Phila., 142 F. Supp. 3d 396, 404 (E.D. Pa. 2015)
(same). “[A] district court may not set attorneys’ fees based upon a generalized sense of what is
customary or proper, but rather must rely upon the record.” Coleman v. Kaye, 87 F.3d 1491,
1510 (3d Cir. 1996). The Court must “assess the experience and skill of the prevailing party’s
attorneys and compare their rates to the rates prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Maldonado v. Houstoun,
The District does not challenge the hourly rates for work performed by the
paralegal and legal assistant at the Oberman firm.
256 F.3d 181, 184 (3d Cir. 2001). As a starting point, “[t]he best evidence of the reasonable rate
for an attorney’s time is the customary billing rate for clients . . . .” Gwendolyn L. v. Sch. Dist.
of Phila., No. 12-0051, 2014 WL 2611041, at *2 (E.D. Pa. June 10, 2014). However,
“[a]ttorneys may not rest on their own affidavits to support a claimed rate; rather, they must
submit evidence that the requested rates fall within the norm of attorneys in the relevant
community.” I.W. v. Sch. Dist. of Phila., No. 14-3141, 2016 WL 147148, at *5, citing Rode,
892 F.2d at 1183. Predictably, the parties here have submitted conflicting affidavits regarding
the reasonableness of parents’ attorneys’ hourly rates.
With respect to the attorneys involved in the administrative proceedings, parents seek an
hourly rate of $505 for Liliana Yazno-Bartle, who was admitted to the bar in 1993 and has 19
years of experience with special education matters. Dkt. No. 48-1 at ECF p. 3. Parents also seek
an hourly rate of $650 for a single hour of time spent on the matter by Caryl Oberman, who was
admitted to practice in 1974 and has 42 years of special education experience. Dkt. No. 48-1 at
ECF p. 3-4. Parents also seek to recover the costs of legal services performed by a paralegal
with 20 years of experience, billed at an hourly rate of $120, and by a legal assistant with
“four (5) [sic] years’ experience,” billed at an hourly rate of $90. Id. at ECF p. 3.
For the attorneys involved in the federal civil actions, parents seek an hourly rate of $595
for Judith A. Gran, who has 33 years of “disability rights law” experience and was admitted to
practice in 1983. Dkt. No. 48-2 at ECF p. 2. For Catherine Merino Reisman, who was admitted
to the bar in 1989 and who has practiced special education law since 2008, they seek an hourly
rate of $495. Id. at ECF p. 4-5. They request an hourly rate of $400 for the work performed by
Sarah Zuba, who was admitted to practice in 2002 and has 14 years of legal experience. Id. at
ECF p. 5.
In support of their motion, parents submit the declaration of David Berney, a special
education practitioner who has worked since 1996 in a civil rights practice that includes cases
arising under special education laws. Dkt. No. 48-3 at ECF p. 1-2. Berney notes that his “own
services are currently billed at a rate of $495 per hour.” Id. at ECF p. 9. After reviewing the
experience and qualifications of parents’ attorneys, considering the 2014 Community Legal
Services fee schedule and a 2008 National Law Journal survey of billing rates and taking into
account recent court decisions regarding fee awards to “civil rights attorneys,” Berney concludes
that “the hourly rates sought here by Defendants’ counsel . . . are reasonable and comparable to
rates charged by attorneys of similar reputation and experience in the Southeastern Pennsylvania
area.” Id. at ECF p. 9-15.
The District contends that the hourly rates sought for parents’ attorneys are unreasonable
and should instead be as follows: Caryl Oberman, $400; Liliana Yazno-Bartle, $385; Judith
Gran, $400; Catherine Merino Reisman, $385; and Sarah Zuba, $300. Dkt. No. 57 at ECF p. 7.
It argues that the Court should not be persuaded by parents’ reliance on the 2014 Community
Legal Services of Philadelphia Fee Schedule 6 “which indicates that an hourly rate of $600-650 is
appropriate for attorneys with more than 25 year[s] experience . . .” because “the Parties[’]
declarations and survey of recent decisions show that no other attorney in the special education
field commands an hourly rate of $595, $495 or $650.” Id. at ECF p. 12. The District also
contends that Berney’s declaration is incompetent evidence of prevailing market rates. Id. at
ECF p. 10. It argues that Berney’s conclusion is “self-interested,” noting that “multiple judges in
Parents assert that the District has itself relied on and cited the CLS Fee Schedule
with approval in other actions. Dkt. No. 48 at ECF p. 14-15; see, e.g. E.C. v. Sch. Dist. of Phila.,
91 F. Supp. 3d 598, 605 (E.D. Pa. 2015) (“The School District also contends that requested rates
should be adjusted downward in light of a Community Legal Services (‘CLS’) fee
schedule . . . .”).
the Eastern District in 2013, 2014 and 2015 have determined a ‘reasonable rate’ for Mr. Berney’s
services . . . range[s] between $350 to $385.” Id. at ECF p. 12. It also argues that Berney’s
declaration, along with the declarations of Yazno-Bartle and Gran “are insufficient because they
provide no support for their conclusory opinions” regarding the reasonableness of the hourly
rates requested. Id. at ECF p. 11. The District contends that the declarations do “not draw on
comparisons of other practitioners of comparable skill, experience and reputation and the rates
they are charging actual clients.” Id.
In support of the rates which it proposes, the District relies on the declaration of Gabrielle
Sereni, who posits that “given . . . recent [court] holdings concerning hourly rates of practitioners
in this geographic region with similar or more experience to that of Attorneys Gran, Oberman,
Reisman and Yazno-Bartle, an hourly rate in the range of $385-$450 reasonably reflects these
colleagues’ experience in the field of special education law in this geographical [sic] area.” Dkt.
No. 57-1 at ECF p. 10. Sereni cites two cases to bolster her conclusion. First, she cites School
District of Philadelphia v. Williams, a March 2016 decision in which the Court held that “[i]t is
clear that highly experienced special education lawyers in Philadelphia regularly seek
compensation of between $400 and $500 per hour.” No. 14-6238, 2016 WL 877841, at *3 (E.D.
Pa. Mar. 7 2016); see also id. (“$600 is not the prevailing market rate for any special education
attorney.”). Sereni also cites M.M. v. School District of Philadelphia, a November 2015 decision
where the Court awarded Berney an hourly rate of $385. 142 F. Supp. 3d 396, 406 (E.D. Pa.
2015), appeal dismissed (3d Cir. 15-3824, Sept. 9, 2016).
Ultimately, parents’ submitted proof is not sufficient to establish that the hourly rates
which they seek are reasonable. Other than Berney’s declaration, they have not set forth any
evidence to support a finding that the fees requested by their attorneys are indeed the fees they
ordinarily command in the market (e.g., billing statements to fee-paying clients). Further,
Berney’s declaration does not rely on any direct evidence of actual rates charged for similar
services by lawyers of reasonably comparable skill, experience and reputation other than his own
billing rate. To the extent that Berney relies on prior cases to guide his conclusion regarding
reasonable hourly rates, his declaration does not rely on fee award determinations made solely in
the context of IDEA, the ADA or Section 504. And even if it did, “prior cases are not even
particularly instructive as fees fluctuate to keep pace with inflation and changing market
conditions.” D’Orazio v. Washington Twp., No. 07-5097, 2011 WL 6717427, at *3 (D.N.J. Dec.
21, 2011). Also, to the extent that Berney relies on the CLS fee schedule to support his
conclusion, at least one of my colleagues has held that “[t]he CLS fee schedule is not appropriate
for fixing hourly rates in IDEA cases,” explaining that
[t]he schedule is based only on years of practice. It does not
consider the attorney’s experience in the relevant field, the level of
participation in a case, and reputation in the field. There is nothing
in the schedule covering rates of attorneys practicing in the IDEA
field. Relying on it in an IDEA case would ignore Congress’s
direction to consider the attorney’s “skill, reputation, and
Rena v. Colonial Sch. Dist., No. 15-1914, 2016 WL 7374547, at *10 (E.D. Pa. Dec. 20, 2016);
see also Damian J. v. Sch. Dist. of Phila., 06-3866, 2008 WL 1815302, at *2 (E.D. Pa. Apr. 22,
2008) (finding the CLS rates could not be applied to determine the reasonable rate because “[t]he
only criteria reflected in the CLS fee schedule is years of experience” and it “does not take into
account the specialized skills . . . the attorneys bring to their practice, their experience in the
particular field of special education law, the size of the law firm, the level of work performed,
nor the positions of counsel”). But see M.W. v. Sch. Dist. of Phila., No. 15-5586, 2016 WL
3959073, at *4 (E.D. Pa. July 22, 2016) (considering the CLS fee schedule in the context of a
motion for fees under IDEA, but finding that “the fees set forth in the upper brackets of the 2014
CLS Fee Schedule seem out of sync with what attorneys in the special education field actually
collect from their clients or from the School District”); M.M. v. Sch. Dist. of Phila., 142 F. Supp.
3d 396, 406 (E.D. Pa. 2015) (considering the 2014 CLS fee schedule, but not relying on it as the
“exclusive tool” for determining reasonable hourly rates).
As for the District’s evidence of reasonable rates, I also cannot give it full credit. First, as
another of my colleagues has explained, while “[t]he School District is correct that Berney . . .
ha[s] an incentive to support [parents’ attorneys’] quest for a high rate in order to establish
precedent for [his] own future fee requests . . . , the school district attorneys also have an
incentive to prevent decisions establishing such high rates.” Sch. Dist. of Phila. v. Williams, No.
14-6238, 2016 WL 877841, at *3 (E.D. Pa. Mar. 7, 2016) (Schiller, J.). To the extent that Sereni
relies on court decisions to ground her declaration regarding reasonable hourly rates, Sereni
neglects to mention that the parents in M.M. sought to recover just $395 per hour for Berney’s
work. 142 F. Supp. 3d at 405. In determining that the slightly lower rate of $385 was reasonable
for Berney’s work, 7 the Court noted that, “[a]ccording to the 2014 CLS Fee Schedule, the range
of hourly rates for an attorney with twenty-one to twenty-five years[’] experience is $520 to
$590.” Id. at 406. And in 2016, another judge in this Court determined that a reasonable fee for
Berney was $425 per hour, explaining that “previous awards should not impose a hard cap on . . .
fee[s],” given the increasing cost of practice and the possibility that Berney had charged belowmarket rates in prior cases. M.W., 2016 WL 3959073, at *4. Indeed, to the extent that prior
decisions can provide any guidance, not all recent decisions have capped the hourly rates
awarded to special education attorneys at $450 or less. See I.W. v. Sch. Dist. of Phila., No. 147
The Court’s $10 per hour reduction of Berney’s rate in M.M. is far less substantial
than the rate reductions which the District asks me to make in this litigation.
3141, 2016 WL 147148, at *9-10 (finding an hourly rate of $600 was reasonable for an attorney
with 27 years of experience focused exclusively on special education matters).
Ultimately, weighing the declarations of Yazno-Bartle, Gran, Berney and Sereni, the
tenure and experience of parents’ attorneys’ in the special education field and the record before
me regarding rates awarded in this community for similar services by lawyers of reasonably
comparable skill, experience, and reputation, 8 I find that slight reductions in the hourly rates
charged by parents’ attorneys are warranted to make them reasonable. Therefore, I will base the
fee award in this litigation on the following rates. First, for Caryl Oberman, I find that $500 is a
reasonable hourly rate. 9 For Yazno-Bartle, I find that a reasonable hourly rate is $425 per hour.
For Gran, I find that a reasonable hourly rate is $525 per hour. For the work performed by
Reisman, I find that $475 per hour is a reasonable hourly rate. Finally, I find that $385 per hour
is a reasonable hourly rate for the work Zuba performed.
The District also argues that the Oberman firm seeks reimbursement for an unreasonable
amount of time spent on this matter. Under IDEA, an attorneys’ fee award should be reduced
when the time and the services performed “were excessive considering the nature of the action or
proceeding.” 20 U.S.C. § 1415(i)(3)(F)(iii). “In fashioning an award of attorneys’ fees, the
‘prevailing party is not automatically entitled to compensation for all the time its attorneys spent
working on the case’ . . . .” D.B. ex rel. H.B. v. Gloucester Twp. Sch. Dist., No. 08-5667, 2013
WL 1314464, at *8 (D.N.J. Mar. 28, 2013), quoting Interfaith Cmty. Org. v. Honeywell Int’l,
I find it is appropriate to consider the 2014 CLS fee schedule in exercising my
discretion to determine reasonable hourly rates, but I do not rely on it as an “exclusive tool.”
M.M. v. Sch. Dist. of Phila., 142 F. Supp. 3d 396, 406 (E.D. Pa. 2015).
This is an adjustment which has a “limited impact on the total award . . .” because
she only billed 1 hour of time in this case. M.W. v. Sch. Dist. of Phila., No. 15-5586, 2016 WL
3959073, at *4 (E.D. Pa. July 22, 2016).
Inc., 426 F.3d 694, 711 (3d Cir. 2005). I must consider “whether the hours set out were
reasonably expended for each of the particular purposes described and then exclude those that
are excessive, redundant, or otherwise unnecessary.” Interfaith Cmty. Org., 426 F.3d at 711
(internal quotations and citation omitted); cf. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.
1990) (“Hours are not reasonably expended if they are excessive, redundant, or otherwise
unnecessary.”). However, absent specific challenges, a court should not decrease the hours
included in the lodestar. 10 Damian J., 2008 WL 1815302, at *3 (“The district court cannot
decrease a fee award based on factors not raised at all by the adverse party.”) (internal quotation
The District argues that the Oberman firm has billed for duplicative time for its work on
the due process hearing, noting that the firm “submitted two invoices with time records from
April 5, 2013 through June 15, 2016 – one for A.K. and one for N.K.” 11 Dkt. No. 57 at ECF
p. 15. The firm recorded a total of 271.5 hours designated for A.K., a time value of $128,829.50,
and a total of 151.70 hours for N.K., a time value of $67,687.50. Id. The District asserts that
parents have not provided any explanation about “the two billing records and whether there is
any duplication of services in the two invoices.” Id. at ECF p. 15-16. The District argues that
“[b]ecause there is no explanation whether the separate time records for A.K. and N.K. are
duplicative or shared, all the time recorded for N.K. – 151.7 hours with a time value of
$67,687.50 – should be deducted from the lodestar.” Id. at ECF p. 16. Parents have not replied
The District makes no specific objections to the time spent on this matter by
attorneys from Reisman Carolla Gran LLP. Accordingly, I will not address the reasonableness
of the time expended by Gran, Reisman or Zuba.
In contrast, Reisman Carolla Gran LLP prepared a single invoice for the work
performed on the parallel matters involving A.K. and N.K. Dkt. No. 48-2.
to the District’s argument.
Specifically, the District notes that on the first day of the due process hearing, January 7,
2014, 7.8 hours of time was recorded for both A.K. and N.K. although “NO CHARGE” was
entered in the invoice for N.K. while a charge of $3,939.00 was recorded for N.K. Id. at ECF p.
16. In contrast, the District argues that at least some of the time preparation for the due process
hearing appears to be charged to both students. Id.; see, e.g. Dkt. No. 48-1 at ECF p. 12 (bill for
A.K. reflecting 2.5 hours on December 31, 2013 to “Prepare exhibits for Due Process Hearing”);
id. at ECF p. 30 (bill for N.K. reflecting 2.5 hours on December 31, 2013 to “Prepare[ ] exhibits
for DPH”); id. at ECF p. 12 (bill for A.K. reflecting 4 hours on January 2, 2014 for “Witness
Preparation, RK and KM”); id. at ECF p. 30 (bill for N.K. reflecting 4 hours on January 2, 2014
for “Witness Preparation, RK and KM”).
It has been held that “[a] reduction for duplication is warranted . . . if . . . attorneys are
unreasonably doing the same work.” Damian J., 2008 WL 1815302, at *4 (emphasis in original).
A reduction for duplication is also warranted when a single attorney bills twice for the same
work. A review of the Oberman firm’s separate invoices for A.K. and N.K. raises questions
about overlapping time entries with substantially similar descriptions on the separate invoices for
A.K. and for N.K. See, e.g., Dkt. No. 48-1 at ECF p. 12 and id. at ECF p. 30 (bills for both A.K.
and N.K. for a total of 9.6 hours attributed to Yazno-Bartle on January 6, 2014, including 0.8
hours each for witness preparation and 4.0 hours each to prepare for due process hearing). It is
possible that parents’ attorneys’ time entries accurately represent the time spent on work for each
child. But it is also possible that substantially similar time entries reflect double counting of the
hours spent, particularly where the majority of the billing descriptions do not specify whether the
work identified was performed for just A.K., just N.K., or both children. Cf. Damian J., 2008
WL 1815302, at *3 (“A fee petition should include some fairly definite information as to the
hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and
the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates.”)
(citation and internal quotation omitted). As the District notes, Yazno-Bartle’s declaration does
not provide me with any specific information about how she or the legal support staff at the
Oberman firm divided their time for work which was relevant to both A.K. and N.K. Nor have
parents provided any response to the District’s argument that the parallel bills contain
overlapping time entries. On the record before me, I find that it is an appropriate exercise of my
discretion to deduct the time which Yazno-Bartle invoiced for N.K.’s matter – 151.7 hours –
from parents’ fee award. See Dkt. No. 48-1 at ECF p. 25-38.
The District also “objects to the amount of time to file, prepare for and try the
administrative proceeding as excessive.” Dkt. No. 57 at ECF p. 16. More specifically, the
District contends that parents’ attorneys “spent excessive time . . . prepar[ing] exhibit binders,
comparing exhibits, drafting a response to a motion to dismiss, [for] preparation of Karen Misher
– the mother – for the due process hearings, [and for] travel time and case closure.” Id. at ECF p.
17. Parents have not responded to the District’s objections to specific time entries.
First, the District objects to 16 hours of time billed by Yazno-Bartle for travel to and
from the administrative hearing sessions. Id. The District also objects to 0.4 hours of time billed
by Yazno-Bartle for travel to ASUA for witness preparation on December 16, 2016. Id. I do not
find the time Yazno-Bartle billed for travel to and from the administrative hearing or for witness
preparation to be excessive. See Deptford Twp. Sch. Dist. v. H.B. ex rel. E.B., No. 01-784, 2006
WL 3779820, at *6 (D.N.J. Dec. 21, 2006) (permitting an award including time billed for travel
where the attorney “was required to attend . . . hearings and proceedings and the Court . . .
assume[d] that he had no or limited control over the scheduling or length of such court
proceedings or the time it took to travel to the proceedings”) rev’d and remanded on other
grounds sub nom. Deptford Twp. Sch. Dist. v. H.B. ex rel E.B., 279 F. App’x 122 (3d Cir. 2008);
P.G. v. Brick Twp. Bd. of Educ., 124 F. Supp. 2d 251, 265 (D.N.J. 2000) (allowing
compensation for travel time). According to the invoices submitted by the Oberman office, the
Hearing Officer convened at least 11 meetings for the Due Process proceeding for A.K. and N.K.
See Dkt. No. 48-1. I will not deduct Yazno-Bartle’s travel time from the lodestar.
The District also objects to 4.0 hours billed on January 2, 2014 to prepare both parents for
the due process hearing and to an additional 5.5 hours billed on March 17, 2014 to prepare the
mother, Karen Misher, for the hearing. It argues that Misher received approximately 7.5 hours
of preparation for the hearing “which is excessive,” that a “total of four hours is more
reasonable,” and thus asks that I deduct a total of 3 hours from the lodestar. Dkt. No. 57 at ECF
p. 18. “The amount of time reasonably expended on preparation for an administrative due
process hearing depends on the length of the hearing and the attorney’s experience.” Sch. Dist.
of Phila. v. Williams, No. 12-6238, 2016 WL 877841, at *5 (E.D. Pa. Mar. 3, 2016). Given that
the due process hearing required at least 11 meetings with the Hearing Officer and addressed the
needs of both A.K. and N.K, I do not find the time spent preparing either parent for the
administrative hearing to be excessive.
The District also challenges approximately 10 hours of time billed by Yazno-Bartle for
assembly of exhibit binders as a “task that can be handled by a competent paralegal.” Dkt No.
57 at ECF p. 17. The District argues that “[a] total of five hours of attorney time is more
reasonable” and asks that “five hours . . . be deducted from the lodestar.” Id. The District also
asks for a deduction from the lodestar for “a total of 4.4 hours” for time entries on November 17,
2013 and January 10, 2014 “to ‘compare’ exhibits,” arguing that the “time is excessive,
especially given the other entries to review the exhibits and prepare the binders.” Id. at ECF p.
18. Parents do not respond to these objections I find that it was reasonable for counsel to spend
a certain amount of time on tasks such as preparing and reviewing exhibits, but agree that
Yazno-Bartle, who had assistance from a paralegal and a legal assistant, spent more time on
these tasks than was required under the circumstances. I will deduct a total of five hours from
the lodestar for the time Yazno-Bartle spent preparing exhibits for the due process proceedings.
The District also contests a time entry on January 21, 2014 for 2.1 hours spent on a
motion to dismiss because “prior entries indicate that the motion to dismiss was completed and
sent to the client for review.” Id. However, the relevant time entry describes the work
performed as “[r]evised response to MTD,” work which logically follows the clients’ feedback
on the motion and the prior time entry for 0.3 hours to “[r]eview[ ] e-mails from RK and MK
regarding changes to MTD response.” Dkt. No. 48-1 at ECF p. 14. I decline to subtract this time
from the lodestar.
Finally, the District objects to two hours billed on August 4, 2014 for a time entry on the
invoice for A.K. attributed to Yazno-Bartle for “Case closure.” 12 Dkt. No. 57 at ECF p. 18, see
Dkt. No. 48-1 at ECF p.20. I will reduce the lodestar for Yazno-Bartle by an additional two
hours, as parents have not made any arguments in response to the District’s argument that this
time “is law office overhead.” Dkt. No. 57 at ECF p. 18.
There is also an August 4, 2014 time entry for Yazno-Bartle on the invoice for
N.K. for “Case closure.” Dkt. No. 48-1 at ECF p. 38. This time will not count towards the
lodestar because I have decided not to award fees for the time invoiced for N.K.
The District also argues that the total fee award should be reduced because “[p]arents
were unsuccessful in their claims that the School District denied FAPE offered in the December
2013 IEP.” Id. at ECF p. 20. Specifically, the District contends that the Law Offices of Caryl
Oberman, unlike the Reisman Carolla, Gran firm, 13 “did not propose any reduction in their
lodestar on account of the partial degree of success at the due process hearing” and asks the
Court to reduce the lodestar for Oberman’s firm by 25%. Id. Parents contend that they are
prevailing parties entitled to recover fees under IDEA. Dkt. No. 48 at ECF p. 10. They argue
they obtained relief on significant issues in the due process
hearing, where the Hearing Officer found that the District failed to
offer either A.K. [or] N.K. a free, appropriate public education
from the beginning of the 2013-14 school year until the District
offered a new IEP on December 9, 2013 and that the private school
in which the Parents placed their children was appropriate.
Id. at ECF p. 11. Parents note that the Hearing Officer “ordered tuition reimbursement for the
cost of educating both children at the private school.” 14 Id.
A “prevailing party” is a party who succeeds on any significant issue in litigation. See
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); D.F. v. Collingswood Borough Bd. of Educ.,
694 F.3d 488, 501 (3d Cir. 2012). A fee award “may be reduced based upon the degree of
success of the prevailing party.” M.M. v. Sch. Dist. of Phila., 142 F. Supp. 3d 396, 409 (E.D. Pa.
“The Reisman, Carolla, Gran firm . . . acknowledged that the lodestar should be
reduced to account for issues or claims on which the parents were not successful. They propose
a reduction of their lodestar from $124,466 to $89,240.10 . . . , which is approximately a 28%
reduction.” Dkt. No. 57 at ECF p. 20, citing Dkt. No. 48-2 at ECF p. 7-8.
Parents also argue that they are entitled to attorneys’ fees and costs for the work
performed by their attorneys “to obtain reimbursement for the twins’ tuition during the pendency
of the due process proceeding and the proceedings in this Court under 20 U.S.C. § 1415(j), the
IDEA’s ‘stay-put’ provision.” Dkt. No. 48 at ECF p. 15.
2015). However, “a failure to succeed on every claim does not [necessarily] preclude a plaintiff
from recovering full compensation.” E.C. v. Phila. Sch. Dist., 644 F. App’x 154, 156 (3d Cir.
I decline to reduce the lodestar on the basis of the District’s argument that parents were
not successful with their claims that the twins were denied FAPE in the IEPs offered by the
District in December 2013. Counsel for parents achieved significant success at the
administrative level on behalf of both A.K. and N.K. in several respects. Based on their
advocacy, the Hearing Officer found that the District denied A.K. and N.K. a FAPE from the
start of the 2013-14 school year through December 2013 and also determined that ASUA was an
appropriate private placement for A.K. and N.K. This determination was critical to this Court’s
finding that the District was obligated to continue to fund the twins’ education at ASUA through
the exhaustion of all appeals from the decisions of the hearing officer.
Where a plaintiff has obtained excellent results, his attorney should
recover a fully compensatory fee. Normally this will encompass
all hours reasonably expended on the litigation . . . . In these
circumstances the fee award should not be reduced simply 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.
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (internal citation omitted). Given the
significance of the overall relief obtained in this action, I decline to make further adjustments to
the lodestar based on parents’ degree of success at the due process hearing.
Attorneys’ Fee Award
Consistent with the adjustments identified above, I will award parents a total of
$185,505.63 in attorneys’ fees: $105,199 to the Law Offices of Caryl Andrea Oberman and
$80,306.63 to Reisman Carolla Gran, LLP , an amount reached by making the lodestar
determination summarized in the table set forth below.
Summary of Revised Lodestar
A.K – Due Process Hearing
Maureen Stankiewicz, Paralegal
Heike Ross, Legal Assistant
N.K. – Due Process Hearing
Maureen Stankiewicz, Paralegal
Heike Ross, Legal Assistant
Total – Due Process Hearing
Federal Civil Action
Catherine Merino Reisman
Finally, parents ask the Court for an award of $1,185.86 in costs to Reisman Carolla
Gran, LLP and an award of $2,751,73 in costs to the Law Offices of Caryl Andrea Oberman.
Dkt. No. 48 at ECF p. 6. I will consider the different elements of the costs requested in turn.
First, the District has not made any specific objections to postage and courier fees
incurred by the Oberman firm on December 30, 2013 and January 3, 2014 – a total amount of
$141.60 billed on the invoices for A.K. and for N.K. Dkt. No. 48-1 at ECF p. 22-23, 39.
Reisman Carolla Gran has also included $106.27 in postage and courier fees among the costs it
demands. Dkt. No. 48-2 at ECF p. 19. I will include these costs in the total award to parents.
Second, the District argues that parents cannot recover either the costs of copying and
travel or the $800 that parents spent on federal court filing fees. Dkt. No. 57 at ECF p. 20. The
District contends that the costs claimed for travel and for copying exhibits “should be disallowed
as general law firm overhead, which is included in the awarded hourly rate.” Id. I will disallow
the travel expenses that parents request, as 28 U.S.C. § 1920 does not authorize their recovery.
See Neena S. ex rel. Robert S. v. Sch. Dist. of Phila., No. 05-5404, 2009 WL 2245066, at *11
(E.D. Pa. July 27, 2009) (“Costs for parking, train fare, mileage, and travel expenses are not
authorized by § 1920.”). The District is mistaken, however, in its argument that copying costs
“are not authorized by 28 U.S.C. § 1920.” Dkt. No. 57 at ECF p. 20. “The cost of making
copies is reimbursable under 28 U.S.C. § 1920(4).” Charles O. v. Sch. Dist. of Phila., No. 130512, 2014 WL 4794993, at *10 (E.D. Pa. Sept. 26, 2014); see also I.W. v. Sch. Dist. of Phila.,
No. 14-3141, 2016 WL 147148, at *21 (E.D. Pa. Jan. 13, 2016) (“Section 1920 specifically
authorizes reimbursement for copying costs.”). Accordingly, I find it appropriate to award the
Oberman firm copying costs in the amount of $1,179 for A.K. and $1,196.85 for N.K., a total of
$2,375.85. I will also award parents the copying costs requested on behalf of the Reisman
Carolla Gran firm.
Finally, the District is mistaken in its argument that that parents’ attorneys are not entitled
to recover the requested federal court filing fees. The $800 cost for filing these actions in federal
court is reimbursable pursuant to 28 U.S.C. § 1920(1). Cf. Neena S., 2009 WL 2245066, at *11
(“The . . . cost for filing this action in federal court is reimbursable, and will be allowed.”).
In total, I will award $3,703.31 in costs to parents: costs incurred by the Law Offices of
Caryl Andrea Oberman in the amount of $2,517.45 (a sum reduced to exclude travel expenses)
and by Reisman, Carolla, Gran, LLP in the amount of $1,185.86 (the full amount requested).
An appropriate Order follows.
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