Pagan-Melendez et al v. Commonwealth of Puerto Rico et al

Filing 32

MEMORANDUM AND ORDER. GRANTED 31 Supplemental Motion; NOTED 31 Motion In Compliance. For the reasons stated, the Court GRANTS the plaintiffs' request for attorneys' fees, as modified here, and awards them $5,385.80 in fees and $18.30 in costs, totaling $5,404.10. The defendants are thus jointly and severally liable to the plaintiffs in the amount of $5,404.10. Signed by Judge Salvador E. Casellas on 5/1/2015.(AVB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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ELBA PAGAN-MELENDEZ, ET AL.,
Plaintiffs,
v.
Civil No. 14-1495 (SEC)
COMMONWEALTH OF PUERTO RICO,
ET AL.,
Defendants.

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MEMORANDUM AND ORDER

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Elba Pagán-Meléndez, personally and on behalf of her minor grandson, L.B.P., brings

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this action under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-

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1482—which “obligates school districts to furnish a free appropriate public education . . . to

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children with disabilities,” Me. Sch. Admin. Dist. No. 35 v. R., 321 F.3d 9, 11 (1st Cir.

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2003)—seeking to recover attorneys’ fees and costs in connection with an administrative

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proceeding in which L.B.P. prevailed. Docket # 1.

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The verified complaint, and supplemental memoranda, Docket # 31, request attorneys’

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fees and expenses incurred in the underlying administrative proceeding. It also requests

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additional fees and costs incurred in this court. See Rodríguez v. Puerto Rico, 764 F. Supp. 2d

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338, 347 (D.P.R. 2011) (holding, in the IDEA context, that continuing legal costs are

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compensable). The plaintiffs seek fees calculated at an hourly rate of $135 for 39.70 hours

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($4,720.75) through June 16, 2014, Docket # 1-2 at 6, plus $2,011.50 incurred since the filing

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of this suit, Docket # 31-1 at 4. In addition, they attempt to recover $536.30 in costs, for a total

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of $7,268.55.

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Maintaining that the plaintiffs are entitled to only $3,776.60 of their initial fee request

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($4,720.75), the defendants complain about the reasonableness of the fees. Docket # 12 at 6.

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Civil No. 14-1495 (SEC)

Page 2

Although encouraged to do so, Docket # 16, the parties were unable to settle their differences
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extrajudicially.
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The plaintiffs invoke 20 U.S.C. § 1415(i)(3)(B)(i)(I), which provides in pertinent part
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that “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs . . .
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to a prevailing party who is the parent of a child with a disability.” And the defendants do not
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question that Pagán-Meléndez is a “prevailing party” within the meaning of section
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1415(i)(3)(B)(I). See Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 18 (1st Cir. 2005).
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The IDEA contains a fee-shifting provision that stands in pari materia with other fee9

shifting statutes, like the Fees Act, 42 U.S.C. § 1988; see Doe v. Boston 2 Pub. Sch., 358 F.3d
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20, 26 (1st Cir. 2004). See also Cent. Pension Fund of the Int’l Union of Operating Engineers
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& Participating Employers v. Ray Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014). This means
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that, when calculating fee awards, the analysis starts by fashioning the so-called lodestar, a legal
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jargon for the “number of hours appropriately worked times a reasonable hourly rate or rates.”
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Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 13 (1st Cir. 2011). Then, district courts must
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“subtract[ ] duplicative, unproductive, or excessive hours, and then appl[y] prevailing rates in
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the community (taking into account the qualifications, experience, and specialized competence
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of the attorneys involved).” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st
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Cir. 2001). As relevant here, the IDEA provides that the fees awarded “shall be based on rates
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prevailing in the community in which the action or proceeding arose for the kind and quality of
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services furnished. No bonus or multiplier may be used in calculating the fees awarded under
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this subsection.” 20 U.S.C. § 1415(i)(3)(C). It bears noting, moreover, that the Supreme Court
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has reiterated that a district court’s duty when assessing attorneys’ fees is not “to become
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green-eyeshade accountants” or “to achieve auditing perfection,” but, rather, “to do rough
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justice.” Fox v. Vice, 131 S.Ct. 2205, 2216 (2011). With these principles in mind, the Court
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turns to the facts of this case.

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Civil No. 14-1495 (SEC)

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The defendants mount no challenge to the reasonableness of counsel for plaintiffs’ hourly
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rate of $135. And for good reason: The cases in this district upholding Attorney Vizcarrondo’s
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$135 hourly rate are legion. E.g., Hernández-Meléndez v. Puerto Rico, No. 14-1493, 2014 WL
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4260811, at *2 (D.P.R. Aug. 29, 2014). The defendants protest, however, some of his billable
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entries. The nub of their objections is that some of Attorney Vizcarrondo’s hours are excessive,
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and that he billed clerical tasks at lawyers’ rate. The Court agrees.
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The law is clear, at least in the context of fee-shifting statutes, that “clerical or secretarial
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tasks ought not to be billed at lawyers’ rates, even if a lawyer performs them.” Lipsett v. Blanco,
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975 F.2d 934, 940 (1st Cir.1992); accord Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.
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10 (1989). At the risk of oversimplification, see Rogers v. Cofield, 935 F. Supp. 2d 351, 363
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(D. Mass. 2013) (discussing the grey area “between the time spent on core versus non-core
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work”), administrative or clerical functions include, but are not limited to, “document
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preparation, organization, distribution, and copying; . . . data collection; . . . scheduling and
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logistical planning; filing court documents; . . . and docket review and management.” E.E.O.C.
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v. AutoZone, Inc., 934 F. Supp. 2d 342, 353-54 (D. Mass. 2013) (collecting cases); accord
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Rodríguez-García v. Municipality of Caguas, 787 F. Supp. 2d 135, 145 (D.P.R. 2011) (noting
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that clerical matters include “requesting or sending transcripts or evidence, organizing case files
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and exhibits, and making telephone calls regarding scheduling matters”). See also Brewster v.
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Dukakis, 3 F.3d 488, 492 (1st Cir. 1993) (“Non-core work consists of less demanding tasks,
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including letter writing and telephone conversations.”). Examining the hours billed with these
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principles in mind, the Court finds many entries (billed at lawyers’ rates) for clerical and
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administrative tasks. See, e.g., Docket # 1-2 at 3 (letter to client to notify “vacation period”);
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id. (telephone conference with client regarding scheduling matters); id. at 4 (email to notify a
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motion); id. at 5 (telephone conference with client to discuss “various [unexplained] case related
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matters”); id. (email to client attaching administrative resolution); id. at 6 (filing of verified

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Civil No. 14-1495 (SEC)

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complaint). Of course, time spent on such tasks has some value, so the Court will compensate
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it “at a less extravagant rate.” Lipsett, 975 F.2d at 940; McMillan v. Massachusetts Soc. for
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Prevention of Cruelty To Animals, 140 F.3d 288, 308 (1st Cir. 1998).
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The Court hastens to add that some of the hours billed by the plaintiffs’ counsel in this
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venue are “excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S.
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424, 434 (1983). Counsel, for example, seeks to recover fees for (1) reviewing an order that
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struck a bill of costs he prematurely filed, Docket # 31-1 at 2; (2) drafting a supplementary
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motion that was stricken for failure to request leave of court, id. at 3; and (3) drafting and filing
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a “second motion for leave to file a supplemental motion,” id. at 4, which was denied as
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“duplicative.” Docket # 29. These charges were wholly unnecessary. Still more, “[b]ecause
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litigating a fee petition is typically an uncomplicated exercise, fees for such work are often
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calculated at lower rates than those deemed reasonable for the main litigation.” Torres-Rivera
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v. O’Neill-Cancel, 524 F.3d 331, 340 (1st Cir. 2008).
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“[L]itigation is messy,” and this court must now balance several factors “to do rough
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justice.” Fox, 131 S.Ct. at 2214. After carefully examining the timesheets, the Court finds that
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the excessive and unnecessary charges nonexhaustively described above must be reduced; the
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same is true for the clerical and administrative tasks billed at lawyers’ rate. A district court may
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apply a percentage reduction of fees because of practices that inflate hours. See, e.g.,
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Diffenderfer v. Gómez-Colón, 587 F.3d 445, 455 (1st Cir. 2009). And where, as here, the
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inflated time entries are “too numerous to discount on an individual basis,” this district has
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employed across-the-board reductions based on “appropriate percentages . . . .”
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Rodríguez-García, 787 F. Supp. 2d at 143 (collecting cases). Because the Court must ensure
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that the ultimate fee is reasonable, it will impose an across-the-board fee reduction of 20%
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($1,346.45) to all fees, for a total of $5,385.80. Accord No. 14-1494 (FAB) at Docket # 26.
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Civil No. 14-1495 (SEC)

Page 5

There is one loose end. The plaintiffs seek $536.30 in costs and expenses, but only
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$18.30 of that was incurred in the administrative proceeding; the remainder was incurred in this
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court. The defendants mount no challenge to the plaintiffs’ recovering the $18.30 incurred in
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the administrative proceedings. And that comes as no surprise: The plaintiffs may generally
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recover such run-mill costs. Kathleen H. v. Massachusetts Dep’t of Educ., 154 F.3d 8, 14 (1st
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Cir. 1998) (noting that the “IDEA provides that a ‘prevailing party’ may be awarded . . . costs”);
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but see Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006) (holding
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that non-attorney expert’s fees for services rendered to prevailing parents in IDEA action are
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not recoverable costs).
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But as just noted, the lion’s share of the costs ($518) were incurred here. And it
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appearing that those costs are “taxable” (e.g., the $400 filing fee), their recovery is controlled
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by Federal Rule of Civil Procedure 54(d), which provides in pertinent part that costs “should
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be allowed to the prevailing party,” and by its local counterpart, which directs the prevailing
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party to file a bill of costs within 14 days from the “entry of judgment.” D.P.R. Civ. R. 54(b).
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Because the plaintiffs flouted Local Rule 54, Docket # 15, however, their request to recover the
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remainder of the costs and expenses is denied without prejudice to its being renewed in
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accordance with the prescribed procedure. The parties shall thus abide by the reasonable
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procedure detailed in Local Rule 54. See Witty v. Dukakis, 3 F.3d 517, 519 (1st Cir. 1993).
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For the reasons stated, the Court GRANTS the plaintiffs’ request for attorneys’ fees, as
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modified here, and awards them $5,385.80 in fees and $18.30 in costs, totaling $5,404.10. The
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defendants are thus jointly and severally liable to the plaintiffs in the amount of $5,404.10.
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Judgment shall enter accordingly.
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IT IS SO ORDERED.
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In San Juan, Puerto Rico, this 1st day of May, 2015.
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s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge