L.H. et al v. Hamilton County Department of Education
Filing
263
MEMORANDUM: the Court will GRANT IN PART the motion by Plaintiffs for attorney's fees and costs. (Doc. 252 .) Accordingly, the Court will ORDER Defendant to pay Plaintiffs $342,545.75 in attorney's fees and $6 ,703.75 in costs, totaling an amount of $349,249.50. The Court will DENY AS MOOT Plaintiffs' motion to file a supplemental declaration regarding Plaintiffs' petition for attorneys fees. (Doc. 262 .)Signed by District Judge Curtis L Collier on 1/3/2019. (BJL, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
L.H., a Minor Student, et al.,
Plaintiffs,
v.
HAMILTON COUNTY DEPARTMENT
OF EDUCATION,
Defendant.
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Case No.1:14-CV-00126
Judge Curtis L. Collier
Magistrate Judge Susan K. Lee
MEMORANDUM
Before the Court is a motion filed by Plaintiffs for attorney’s fees and costs. (Doc. 252.)
Defendant has responded (Doc. 255), and Plaintiffs have replied (Doc. 258). For the following
reasons, the Court will GRANT IN PART the motion by Plaintiffs for attorney’s fees and costs.
(Doc. 252.) Accordingly, the Court will ORDER Defendant to pay Plaintiffs $342,545.75 in
attorney’s fees and $6,703.75 in costs, totaling an amount of $349,249.50.
Also before the Court is a motion filed by Plaintiffs to file a supplemental declaration
regarding Plaintiffs’ petition for attorney’s fees. (Doc. 262.) Because the Court considered
Plaintiffs’ requested rate to be reasonable based on memoranda filed regarding Plaintiffs’ motion
for attorney’s fees and costs, the Court will DENY AS MOOT Plaintiffs’ motion to file a
supplemental declaration regarding Plaintiffs’ petition for attorney’s fees. (Doc. 262.)
I.
BACKGROUND
L.H. is a fifteen-year-old boy with Down Syndrome. From 2009 to 2013, L.H. attended
Normal Park Elementary School, a public school operating under the Hamilton County
Department of Education (“HCDE”). In May 2013, L.H.’s parents rejected the individualized
education program (“IEP”) which had been developed by HCDE, instead deciding to enroll him
at The Montessori School of Chattanooga (“TMS”) for the 2013-2014 school year, L.H.’s third
grade in school. L.H. has remained at TMS through the eighth grade.
While L.H. received his education at TMS, his parents filed a complaint under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq., which requires
states that receive federal funds to provide a “free and appropriate education” (a “FAPE”) to every
disabled child. Plaintiffs also brought claims under Title II of the Americans with Disabilities Act
(“ADA”), Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (“Section
504”), and other causes of action. (Doc. 64.) In November 2015, this Court granted a motion by
HCDE to sever Plaintiffs’ IDEA claims from their other claims. (Doc. 121.) In December 2015,
this Court approved a settlement agreement entered into between Plaintiffs and then-Defendant
the Tennessee Department of Education (“TDOE”).
(Doc. 138.)
TDOE paid the sum of
$65,000.00 into a special needs trust for the benefit of L.H, $75,000.00 to reimburse Plaintiffs
D.H. and G.H. for expert and attorneys’ fees, and $45,000.00 to Gilbert, Russell, McWherter, Scott
& Bobitt, PLC, for attorneys’ fees incurred to that date. (Doc. 112 at 2-3.) HCDE was, afterwards,
the only remaining Defendant. Ultimately, on the merits of Plaintiffs’ IDEA claims, this Court
determined that placement in accord with HCDE’s 2013 IEP was more restrictive than necessary—
and therefore improper. (Doc. 173.) This Court also determined that L.H.’s alternative private
placement at TMS did not satisfy the IDEA, so L.H.’s parents were not entitled to reimbursement.
(Id.)
Both parties appealed to the United States Court of Appeals for the Sixth Circuit, which
affirmed that placement in accord with HCDE’s 2013 IEP was more restrictive than necessary.
2
(Doc. 249.) The Court of Appeals for the Sixth Circuit found, however, that the educational
program at TMS satisfied the IDEA and that L.H.’s parents were therefore entitled to
reimbursement. (Id.) The appellate court accordingly observed that Plaintiffs’ claims under the
ADA and Section 504 were “redundant” and therefore pretermitted those claims in the appeal.
(Doc. 294 at 4, n.1.) A mandate issued October 4, 2018.1 (Doc. 259.)
Plaintiff now moves this Court for attorney’s fees and costs pursuant to Federal Rule of
Civil Procedure 54 and Eastern District of Tennessee Local Rule 54.2. (Doc. 252.) Plaintiffs
request attorney’s fees of $378,831.25, plus costs of $6,703.75, for a total of $385,535.00. (Id. at
2.)
II.
DISCUSSION
A.
Entitlement to Attorney’s Fees
Our legal system generally requires each party to bear his or her own litigation expenses
and attorney’s fees, regardless of whether he or she wins or loses. Fox v. Vice, 563 U.S. 826, 832
(2011). “Indeed, this principle is so firmly entrenched that it is known as the ‘American Rule.’”
Id.
In certain types of cases, however, Congress has authorized courts to deviate from this rule
by shifting the winning party’s attorney’s fees to the losing party. See Burlington v. Dague, 505
U.S. 557, 562 (1992) (listing federal fee-shifting provisions). Cases brought under the IDEA are
1
Plaintiffs filed motions before this Court before the mandate issued. (Docs. 251, 252.)
In response to each motion, Defendant argued that the Sixth Circuit order was stayed because
HCDE had filed a timely petition for rehearing en banc with the Sixth Circuit. Plaintiffs
acknowledged that a request for rehearing en banc had been filed, but did not wish to waive a
twenty-one-day deadline set by this Court to refile a motion for attorney’s fees. (Doc. 248 at 2-3.)
Because a mandate has since issued, jurisdiction before this Court is now proper.
3
among those special instances where courts may shift attorney’s fees: “[i]n IDEA proceedings, the
district court has the discretion to award reasonable attorney fees to ‘a prevailing party who is the
parent of a child with a disability.’” Somberg on behalf of Somberg v. Utica Cmty. Sch., 908 F.3d
162, 178 (6th Cir. 2018) (quoting 20 U.S.C. § 1415(i)(3)(B)(i)). In the Sixth Circuit in particular,
district courts are required to award attorney fees to a prevailing party under the IDEA where no
special circumstances militate against such an award. Wikol ex rel. Wikol v. Birmingham Pub.
Sch. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004). The burden is on the non-prevailing party
to make a strong showing of special circumstances which may warrant a denial of fees. Déjà vu
v. Metro. Gov’t of Nashville, 421 F.3d 417, 422 (6th Cir. 2005).
Here, Plaintiffs are unquestionably the prevailing party in their IDEA case. This Court
entered judgment for Plaintiffs on August 9, 2017. (Doc. 212.) On appeal, the Court of Appeals
for the Sixth Circuit affirmed this finding, further finding that Plaintiffs were also owed monetary
reimbursement for amounts spent on L.H.’s education at TMS. Because full relief was given under
the IDEA, this Court is required to award attorney’s fees. Wikol, 360 F.3d at 611. Defendant has
not otherwise argued that special circumstances warrant the blanket denial of a fee award. Id.
B.
Calculation of Attorney’s Fees
The initial estimate of a reasonable attorney’s fee is calculated by multiplying the number
of hours reasonably expended on the litigation times a reasonable hourly rate. See Blum v. Stenson,
465 U.S. 886, 888 (1984); Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). This amount is referred
to as the “lodestar.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000).
“Generally, a ‘strong presumption’ favors the prevailing lawyer’s entitlement to his lodestar fee.”
Id. at 49-50 (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992); Pennsylvania v. Del.
Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)). Thus, modifications to the
4
lodestar are proper only in certain “rare” and “exceptional” cases, supported by both “specific
evidence” on the record and detailed findings by the district court.
Del. Valley Citizens’
Council, 478 U.S. at 565.
The lodestar can, however, be adjusted in consideration of other factors, such as the time
and labor involved in the case, the novelty and difficulty of the questions at issue, and the skill
requisite to perform the legal services properly, among others. See Blanchard v. Bergeron, 489
U.S. 87, 94 (1989). Those factors were first listed in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974), and have since been adopted by the Supreme Court as
appropriate for district courts to consider. Hensley, 461 U.S. at 434 n.9. The twelve Johnson
factors are:
(1) the time and labor involved;
(2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal services properly;
(4) the preclusion of other employment by the attorney due to acceptance of the
case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or circumstances;
(8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.
488 F.2d at 717-19. The most critical factor in determining the reasonableness of a fee award is
the degree of success obtained. See Farrar v. Hobby, 506 U.S. 103, 114 (1992).
1.
Lodestar Calculation
The Sixth Circuit presumes that the lodestar amount—the reasonable hourly rate times the
number of hours worked—amounts to a reasonable fee. EEOC v. Dolgencorp, LLC, 899 F.3d 428,
436 (6th Cir. 2018). In order to aid the Court in a determination of the lodestar value, Plaintiffs
5
have submitted declarations by counsel involved in this matter, Justin Gilbert and Jessica Salonus,
a timesheet detailing their rates, hours, and tasks worked, and the declarations of Hill Rivkin, Dean
of the University of Tennessee College of Law in Knoxville, and Donna Mikel, an attorney in the
Chattanooga, Tennessee region.
a.
Hourly Rates
“[D]etermining an appropriate ‘market rate’ for the services of a lawyer is inherently
difficult.” Blum, 465 U.S. at 806 n.11. Because of this, “[t]o inform and assist the court in the
exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence—in
addition to the attorney’s own affidavits—that the requested rates are in line with those prevailing
in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation.” Id.
Justin Gilbert, a twenty-four-year attorney, founder and senior partner of Gilbert
McWherter Scott and Bobbitt, PLC, seeks his regular rate of $400 per hour. Gilbert declares that
he began using this rate in January 2017, and that the rate is appropriate in the Eastern District of
Tennessee for cases of this type, particularly considering the novelty, contingency risk, lack of
interim payments, degree of difficulty, and his experience. (Doc. 253-1.)
Gilbert spends well over half his time on education law for children, with a principal focus
on children with disabilities. He has experience trying many cases involving students and
employees with disabilities, ranging from physical disabilities to mental disabilities. His first due
process hearing for a child with a disability, with successful subsequent action under the IDEA
and Section 504, dates back to 1996. Gilbert has been named to the Best Lawyers in America List
for 2018 and is AV rated by Martindale Hubbell.
6
Former associate Jessica Solonus, a nine-year attorney who now has her own special
education law firm, seeks her regular rate of $275 per hour. (Doc. 253-2.) Solonus declares that
her prior firm set this rate in 2016 for billing in contingency-fee cases, and that the rate is consistent
with billing rates for complex federal court civil rights matters in the Eastern District of Tennessee
for a full-time associate.
Solonus also has particular skill, experience, and reputation in the special education field.
Her legal work primarily involves representing children with special needs in federal court and
due process proceedings regarding issues under the IDEA, ADA, and Section 504. She is also a
staff attorney for a national non-profit organization that advocates nationally for the rights of
children with disabilities under the IDEA, ADA, and Section 504.
Dean Hill Rivkin2 declares that in view of the skill, experience and reputation of the
lawyers for Plaintiff, the fees fall “well within the customary fees charged by lawyers with
comparable credentials” and are “reasonable under all applicable standards.” (Doc. 253-3.)
Rivkin declares that in recent years, Gilbert has represented clients in path-breaking special
education cases. In his opinion, Gilbert is the leading lawyer in the special education field in
Tennessee. He states that Gilbert and Solonus exemplify the best of the legal profession.
Donna Mikel,3 a plaintiff’s civil rights attorney and partner at the law firm of Burnette,
Dobson, and Pinchack in Chattanooga, Tennessee, declares that the rates sought by Gilbert and
2
Rivkin is the Williford Gragg Distinguished Professor of Law Emeritus at the University
of Tennessee College of Law in Knoxville, Tennessee. He has been a member of the faculty since
1976. He declares that, throughout his legal career, he has been frequently engaged by lawyers to
assist them in navigating the process of filing statutory fee petitions in connection with their
successful federal litigation. He has also filed his own statutory fee petitions in successful federal
and state cases which he, himself has litigated.
3
Mikel has been practicing law for eighteen years, primarily in the area of employment
and civil rights law. She has extensive experience litigating in federal court, and in particular, she
7
Salonus “are reasonable and well within the acceptable range for the Eastern District.” (Doc. 2535.) Donna Mikel references similar awards of attorney’s fees in cases she has litigated. She also
references the Laffey Matrix and the United States Attorney’s Fees Matrix, which she attaches to
her declaration. The Laffey Matrix reflects a rate of $864 for Justin Gilbert and $636 for Jessica
Solonus for 2017-18. See Adcock-Ladd, 227 F.3d at 351 (relying in part of the Laffey Matrix).
The United States Attorney’s Fees Matrix reflects a rate of $543 for Justin Gilbert and $395 for
Jessica Solonus for 2016-17. In determining whether the rates sought by Gilbert and Solonus were
reasonable, Mikel declares that she took into account the fact that the work in this matter was more
complex than a typical employment law or civil rights matter.
Defendant argues that the declarations of Plaintiff’s proffered legal professionals are
inadequate because those individuals are not in a position to “accurately assess what precisely
constitutes a customary rate in a case such as this.” (Doc. 255 at 19.) Defendant instead submits
the affidavits of Melinda Jacobs,4 an attorney who was active in special education law for thirtytwo years, and Scott Bennett, a twenty-four-year attorney. (Docs. 255-3, 255-7.)
Melinda Jacobs attested that, effective September 1, 2017, she raised her hourly rate from
$250 per hour to $275 per hour, and that based on her expertise in education law and experience,
she believed that to be a reasonable rate for an attorney in Tennessee with a level of experience
comparable to hers in the special education field. Jacobs stated that since September 1996, she
had exclusively represented school agencies in special education law matters. Beginning in 1999,
has experience litigating against HCDE. She is AV rated by Martindale Hubbell, has taught
numerous seminars and given multiple presentations on employment law and civil rights topics
for bar associations and private seminar providers, and is involved in leadership positions in
multiple bar and professional organizations.
4
Jacobs passed away before the Court of Appeals for the Sixth Circuit rendered its
decision in this matter.
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she owned and operated her own law firm, the Law Office of Melinda Jacobs, in Townsend,
Tennessee and Franklin, Tennessee.
Scott Bennett, a twenty-four-year attorney in the Chattanooga, Tennessee area, attests that
his hourly rate for his highest paying education law client is $195 per hour, but that $170 per hour
is his normal rate for most litigation work. Bennett has been lead counsel for HCDE in this case
since its inception. He attests that, over time, his practice has developed to the point that education
law and representation of local boards of education accounts for almost the entirety of his practice.
On this particular case, Bennett and his law partner, Mary C. DeCamp, both worked for $150 to
$170 per hour. Bennett adds that, prior to seeing Gilbert at the due process hearing in October
2013, Bennett had never heard of Gilbert, or his firm, in the special education context.
Plaintiffs point out that Defendant does not offer a single parent-side practitioner to
disagree with the rates sought by Plaintiffs’ counsel. That distinction is important, Plaintiffs argue,
in that a school-side practitioner can rely upon a school district to seek legal services as a “repeat
player.” School-side practitioners do not undertake the substantial risk that parent-side attorneys
take by engaging clients via contingent fees. See Hamlin v. Charter Twp. of Flint, 165 F.3d 426,
438 (6th Cir. 1999) (“the contingent nature of the fee may be considered when calculating the
reasonable hourly billing rate to provide an allowance for contingent risks assumed by the
attorney. . . . [T]he reasonable hourly rate may be adjusted upward to account for the risk of nonpayment inherent in a contingency fee arrangement”). Here, at the outset, Plaintiffs paid their
lawyers a total of $75,000, $15,000 of which was to cover expert fees and $60,000 was to cover
the beginning of attorney’s fees. Plaintiffs’ lawyers agreed to carry the case beyond that stage
based on the uncertain prospect of obtaining statutory attorney’s fees. Gilbert declares he knew
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when taking on the case that his law firm was certain to have to bill time beyond what the original
$60,000 could cover.
Plaintiff also cites cases where the Court of Appeals for the Sixth Circuit has approved of
$400 requested hourly rates, or where courts within the Circuit have approved rates nearing $400.
See Waldo v. Consumers Energy Co., 726 F.3d 802, 821 (6th Cir. 2013) ($400 per hour rate an
appropriate award for experienced attorney in Western District of Michigan); Dolgencorp, LLC,
2017 WL 9517513, at *6 (E.D. Tenn. Aug. 7, 2017) ($350 awarded to plaintiff’s attorney in ADA
case in Knoxville, Tennessee); Jones v. Babcock & Wilcox Tech. Servs. Y-12, LLC, No.
311CV00531PLRHBG, 2016 WL 4691294, at *4 (E.D. Tenn. Aug. 8, 2016) ($345 awarded to
plaintiff’s attorneys in civil rights case in Knoxville, Tennessee).
Dean Hill Rivkin addresses the recent decision of EEOC v. Dolgencorp, which awarded a
$350 fee to an attorney in Knoxville who had requested a $400 rate, and who had similar
experience to lead counsel here. He declares that a major reason cited for the $50 deduction in
that matter was the belief that $350 an hour was sufficient to attract competent counsel to an
employment discrimination case. (Doc. 253-3 at 5.) Rivkin argues that the same reasoning should
not apply to a special education case, where lawyers are not “flocking” to the smaller, niche
practice area. (Id.)
Donna Mikel notes that in 2017, she was awarded a $400 uncontested fee when serving as
local counsel for a California law class action case. Tami Long v. Covenant Transport, Inc., No.
1:15-cv-278 (E.D. Tenn.) (Apr. 28, 2017 Order by McDonough, J.). She also notes that her cocounsel was awarded a $395 rate in in an employment discrimination case for work performed in
this District from 2009 to 2011. Hunter v. City of Copper Hill, Tenn., No. 1:09-CV-238, 2013 WL
10
5278673, at *5 (E.D. Tenn. Sept. 19, 2013).
Considering inflation, that award would be
considerably more than a $400 rate today.
As to Salonus’s rate of $275, she attests that her prior law firm set her 2016 billing rate at
$275 for contingency-fee cases. In 2012, she was approved by the Middle District of Tennessee
in a contested fee dispute for $250 per hour. Again, considering inflation, that award would be
more than a $275 rate today. And in 2016, she was compensated in a fee petition at the rate of
$275 per hour in the Western District of Tennessee.
Plaintiffs’ remarks regarding the contingent nature and risk of being a parent-side
practitioner in the special education context, in particular, are well-taken. Through Plaintiffs’
collective evidence, and having considered Defendant’s arguments regarding it, the Court finds
that Plaintiffs have met their burden of demonstrating that each of the rates claimed by Plaintiffs’
counsel are in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation. Blum, 465 U.S. at 806 n.11.
Defendant makes two additional arguments regarding the span of years that this matter has
remained in litigation. Defendant contends that, even if this Court were to determine that the rate
of $400 per hour is a reasonable rate for Gilbert’s compensation, the Court should not assign that
rate for any tasks dated prior to January 2017—when Gilbert raised his rate to $400 per hour.
Defendant also argues that, for the duration of Jessica Salonus’s involvement in this matter, she
was a four-to six-year attorney and should not be compensated at her current market rate.
The decision to apply historic or current billing rates is within a district court’s discretion
“so long as it explains how the decision comports with the ultimate goals of awarding reasonable
fees.” Gonter v. Hunt Valve Co., 510 F.3d 610, 617-18 (6th Cir. 2007); see also Missouri v. Jenkins
by Agyei, 491 U.S. 274, 284 (1989) (“an appropriate adjustment for delay in payment—whether
11
by the application of current rather than historic hourly rates or otherwise—is within the
contemplation of the statute”). The Court of Appeals for the Sixth Circuit has affirmed that current
market rates are reasonable when litigation has been ongoing over a span of years in order to
counterbalance a delay in payment. See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th
Cir. 2005) (finding the current market rates reasonable because the litigation “had been ongoing
for nearly six years”); Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 684 F. Supp. 953, 958
(N.D. Ohio 1988), aff’d in relevant part, 917 F.2d 1413, 1447 (6th Cir. 1990) (noting
that current rates were appropriate to counterbalance a delay in payment, inflation, and foregone
interest).
The Court finds that application of current billing rates is appropriate here because this
litigation has been ongoing over a span of years and the current rates help to counterbalance the
delay in payment which has occurred. Plaintiff’s counsel began conferring with L.H.’s parents
regarding possible representation in October 2013. (Doc. 253-1.) The lawsuit was initially filed
in the Chancery Court of Davidson County, Tennessee in February 2014. (Doc. 1-1.) It has lasted
nearly five years, involved a bench trial and multiple dispositive motions, and has resulted in a
published opinion by the United States Court of Appeals for the Sixth Circuit. See L.H. v.
Hamilton Cty., 900 F.3d 779 (6th Cir. 2018). Gilbert attests that he does not know of any other
parent-side attorneys in Tennessee who would have accepted the risk of litigating a leastrestrictive-environment case for a child with an intellectual disability. He also attests that the case
was not only trying for his law firm, but that it was emotionally and physically tolling.
A special education case like L.H.’s is usually financially impractical for parents to carry
beyond an initial due process hearing, absent the willingness of a lawyer to gamble upon his or her
ultimate success and the fee shifting provisions of the civil rights laws. The Court is mindful that
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if “no compensation were provided for the delay in payment, the prospect of such hardship could
well deter otherwise willing attorneys from accepting complex civil rights cases that might offer
great benefit to society at large.” Jenkins, 491 U.S. at 284. Indeed, the Supreme Court has
emphasized the importance plaintiffs’ bringing civil rights suits: “Congress expressly recognized
that a plaintiff who obtains relief in a civil rights lawsuit does so not for himself alone but also as
a private attorney general, vindicating a policy that Congress considered of the highest
importance.” City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) (internal quotation marks
omitted). And “[i]f the citizen does not have the resources, his day in court is denied him; the
congressional policy which he seeks to assert and vindicate goes unvindicated; and the entire
Nation, not just the individual citizen, suffers.” Id.
The Court will calculate the lodestar rate according to Plaintiffs’ attorneys’ current billing
rates—$400 for Justin Gilbert, and $275 for Jessica Salonus. The Court will consider Defendant’s
additional arguments under the Johnson factors after the Court completes an initial calculation of
the lodestar value, below. See Johnson, 488 F.2d at 717-19.
b.
Number of Hours Worked
Plaintiffs’ attorneys’ rates must be multiplied by the number of hours reasonably worked
in order to calculate the lodestar value. Dolgencorp, 899 F.3d at 436.
The fee applicant should submit evidence of the hours worked. The Ne. Ohio Coal. for the
Homeless v. Husted, 831 F.3d 686, 702 (6th Cir. 2016). Counsel should be paid “for all time
reasonably expended on a matter.” Blanchard, 489 U.S. at 91 (quoting S. Rep. No. 94-1011, p. 6
(1976)). “This means that counsel for the prevailing party should make a good faith effort to
exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Binta
B. ex rel. S.A. v. Gordon, 710 F.3d 608, 628 (6th Cir. 2013) (internal quotation marks omitted).
13
“[H]ours that are not properly billed to one’s client also are not properly billed to one’s adversary.”
Id. Instead, the fee applicant must exercise “billing judgment” and the same ethical billing
practices he or she would use in submitting the bill to a client. Husted, 831 F.3d at 702.
Plaintiffs filed a timesheet, which includes entries regarding the rate of the attorney, the
amount of hours worked, a description of the work, and the relevant date. (Doc. 253-1.) The
timesheet reflects 929.25 hours by Justin Gilbert and 407.75 hours by Jessica Salonus. Taken
together, the lodestar calculation would result in $483,831.25 in attorney’s fees, exclusive of costs.
Plaintiffs instead request $378,831.25 in attorneys’ fees, exclusive of costs. This amount includes
an offset of $105,000.00 for fees TDOE already paid to Plaintiffs as part of its settlement. Gilbert
declares that the full credit is somewhat of a disadvantage to his law firm, as some of the work
included in that $105,000.00 related to issues unique to TDOE, but that he is giving the full credit
to HCDE in order to avoid further argument on the matter.
Defendant takes issue with two main aspects of Plaintiffs proffered timesheet, arguing (1) it
includes time spent on Plaintiffs’ claims under the ADA, Section 504, and other causes of action,
under which Plaintiffs did not prevail and which were superfluous, and (2) it uses quarter-hour
billing increments which improperly inflate the amount of billable hours worked and documented.
In addition, Defendant conducted a line-by-line review of Plaintiffs’ timesheet, objecting on
various different grounds to approximately 187 of Plaintiffs’ 616 time entries. (Doc. 255-2.) The
Court will address each of Defendant’s arguments in turn.
First, Defendant argues Plaintiffs did not prevail on their ADA, Section 504, and other
various claims, and that they are, thus, not entitled to any fees for time spent working on them.
The Court is not convinced by this argument.
14
This Court granted Plaintiffs judgment on their ADA and Section 504 claims. (Doc. 212.)
The Court of Appeals for the Sixth Circuit briefly addressed those claims in a footnote, stating that
it would not analyze them on the merits since Plaintiffs were already due the full relief they
requested under their IDEA claims. It is difficult to conceive how this exercise in judicial restraint
could be characterized as Plaintiffs being “unsuccessful” on those claims. Instead, Plaintiffs were
so successful that the appellate court did not have to resort to exploring Plaintiffs’ further theories.
Regardless, “a civil-rights plaintiff need not succeed on every claim in order to recover
attorney’s fees. Success on a single claim is sufficient to become a prevailing party.” Green Party
of Tenn. v. Hargett, 767 F.3d 533, 552-53 (6th Cir. 2014). So long as the claims are in common
with successful claims, a prevailing party’s full fee is recoverable. EEOC v. Dolgencorp, LLC,
No. 3:14-CV-441-TAV-HBG, 2017 WL 9517513, at *9 (E.D. Tenn. Aug. 7, 2017), report and
recommendation adopted sub nom. EEOC v. Dolgencorp, LLC, 277 F. Supp. 3d 932 (E.D. Tenn.
2017), aff’d, 899 F.3d 428 (6th Cir. 2018). “[T]he seminal opinion in Hensley v. Eckerhart, 461
U.S. 424, 435 [] (1983) explained that when claims ‘involve a common core of facts’ or are ‘based
on related legal theories,’ the district court’s rejection of certain grounds is not a sufficient reason
for reducing a fee.” Jordan v. City of Cleveland, 464 F.3d 584, 603 (6th Cir. 2006). This rule
exists because litigation is not an exact science: Lawyers cannot precisely preordain which claims
will carry the day and which will be treated less favorably. See Goos v. Nat’l Ass’n of Realtors,
68 F.3d 1380, 1386 (D.C. Cir. 1995). Instead, good lawyering as well as ethical compliance often
require lawyers to plead in the alternative. See id. When, however, a plaintiff’s unmeritorious
claims are “based on different facts and different legal theories” than her meritorious claims, a
court must treat them “as if they had been raised in separate lawsuits, and therefore no fee may be
15
awarded for services on the unsuccessful claim[s].” Tex. State Teachers Ass’n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 789 (1989).
Because of these principles, in most cases, a party who does not prevail in a fee-shifting
suit often seeks to show that their opposing party’s unsuccessful claims were not related to their
successful claim. If such is the case, the non-prevailing party does not owe reimbursement for
time spent litigating those unsuccessful claims.
Defendant, however, seeks to make the opposite showing here. Instead of making the
typical argument that Plaintiffs’ ADA and Section 504 claims were not related such that Plaintiff
should be denied compensation for time spent on them, Defendant argues that those claims were
so closely related as to be duplicative of one another. Because the Sixth Circuit found those claims
to be “redundant,” Defendant states that “hours which are ‘excessive, redundant, or otherwise
unnecessary,’ are not reasonably expended” and cannot be compensated. Brooks v. Invista, No.
1:05-cv-328, 2008 WL 304893, at *4 (E.D. Tenn. Jan. 30, 2008) (quoting Hensley, 461 U.S. at
434).
This Court has already considered, and rejected, the argument that Plaintiffs’ ADA and
Section 504 claims were subsumed by their IDEA claims such that all of the claims could not be
brought in the same action. (Doc. 48 at 5-7.) As such, it was not “unnecessary” or “redundant”
for Plaintiffs to bring claims under both provisions before this Court, despite an acknowledged
“overlap in coverage” between the statutory provisions. See Fry v. Napoleon Cmty. Sch., 137 S.
Ct. 743, 756 (2017) (“a plaintiff might seek relief for the denial of a FAPE under Title II
and § 504 as well as the IDEA”); Jordan, 464 F.3d at 603 (“obvious and significant legal overlap”
between claims called “for a full recovery of counsel’s services, rather than a percentage
reduction”). Defendant offers no authority for the proposition that compensation can be denied to
16
a party for spending time on claims which are too closely related to a claim which is ultimately
successful. In fact, it would be odd to say that Plaintiff cannot be reimbursed for time spent
analyzing facts and issues which had a strong likelihood of contributing to Plaintiffs’ success under
a related cause of action in due course.
Because Plaintiffs’ ADA and Section 504 claims were “common” to their IDEA claims,
which were successful, this Court will not deny an award of attorneys’ fees for time spent litigating
them. Hensley, 461 U.S. at 435. For the same reason, this Court will not deny an award of
attorneys’ fees for time spent litigating claims Plaintiffs voluntarily dismissed, including claims
involving procedural violations of the IDEA, claims under Tennessee state law, and claims
involving retaliation. Jordan, 464 F.3d at 604 (courts must give “full credit to a meaningfully
successful plaintiff, rather than making a mechanical per-losing-claim deduction from an
attorney’s fee award”). Those claims were also based on the same “common core” of facts
regarding L.H.’s denial of education in an inclusive environment with non-disabled peers. See
Texas State Teachers Ass’n, 489 U.S. at 789.
Along the same lines, Defendant argues that time Plaintiff spent on HCDE’s statistics of
inclusion should not be reimbursed because there is no evidence that the statistics were considered
relevant or material to this Court or the Court of Appeals for the Sixth Circuit. As such, Defendant
argues those statistics did not meaningfully contribute to Plaintiffs’ success. But just as lawyers
cannot be faulted for not being able to precisely preordain which claims will carry the day, they
should also not be faulted for not being able to precisely preordain which evidence will be
considered relevant or material in the course of four to five years of litigation. This Court will not
deny fees for time expended developing those statistics.
17
Second, Defendant argues Plaintiffs’ use of quarter-hour billing increments improperly
inflates the amount of billable hours worked and documented. Defendant also conducted a lineby-line review of Plaintiffs’ submitted timesheet, pointing out numerous specific objections to
Plaintiffs’ entries.
This Court is mindful of the rule that it “need not, and indeed should not,” become a “greeneyeshade accountant[]” when reviewing a timesheet for attorney’s fees. Fox, 563 U.S. at 838.
Instead, “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve
auditing perfection.” Id. The determination of fees “should not result in a second major litigation.”
Hensley, 461 U.S. at 437. “Hours spent in reviewing records, talking to other lawyers or experts,
preparing legal documents and the like cannot be fully verified and require the court to trust the
lawyer’s word that the hours claimed represent necessary work actually performed.” Husted, 831
F.3d at 702 (quoting Coulter v. State of Tenn., 805 F.2d 146, 150 (6th Cir. 1986)). Thus, the Court
will not engage in a discussion as to each of the numerous specific objections Defendants have
lodged regarding Plaintiffs’ counsels’ hundreds of time entries.
Some of Defendant’s observations, however, do give the Court reason for pause regarding
Plaintiffs’ timesheet. Defendant points out that, in one instance, Plaintiffs’ counsel entered two
time entries, which, when added together, equal 24.5 billable hours in one day. Plaintiffs’ counsel
replies that the error likely occurred because counsel worked past midnight, and the entries were
accordingly made on the same day instead of being more accurately split between separate days.
Defendant also argues many of the over seventy time entries for quarter-hour increments were for
activities which likely took much less than fifteen minutes of time. And while the Court declines
to become a “green eyeshade accountant[],” as a mathematical reality, billing at quarter-hours will
inevitably result in more time billed than when billing at one-tenth hours. Fox, 563 U.S. at 838.
18
“Whether quarter-hour billing is reasonable is a matter within the discretion of the district
court,” but in this District in particular, the use of quarter-hour billing is disfavored. Yellowbook
Inc. v. Brandeberry, 708 F.3d 837, 849 (6th Cir. 2013); Brumitte v. Astrue, No. 3:08-CV-53, 2009
WL 3208594, at *4 (E.D. Tenn. Sept. 29, 2009). District courts typically account for quarterbilling inaccuracy by reducing the number of hours worked by a percentage amount. See
Yellowbook Inc., 708 F.3d at 849; Corbis Corp. v. Starr, 719 F. Supp. 2d 843, 846 (N.D. Ohio
2010) (“quarter hour billing and conclusory descriptions ‘invite downward adjustment’ of
attorney’s fees”). “Quarter-hour billing cannot mathematically warrant a fee reduction greater than
60% relative to tenth-of-an-hour billing, and in most cases district courts should apply much lower
percentage reductions.” Yellowbook Inc., 708 F.3d at 849.
Defendants request an across the board reduction of 20% based on a case from the Court
of Appeals for the Ninth Circuit. See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir.
2007) (20% reduction found appropriate where “block billing” had been utilized). Cases within
this Circuit, however, tend to implement smaller percentage reductions. See Hubbell v. FedEx
Smartpost, Inc., No. 14-13897, 2018 WL 1392668, at *4 (E.D. Mich. Mar. 20, 2018) (5%
reduction); Kelmendi v. Detroit Bd. of Educ., No. 12-14949, 2017 WL 1502626, at *21 (E.D. Mich.
Apr. 27, 2017) (5% reduction). This Court finds most instructive Bench Billboard Co. v. City of
Toledo, 759 F. Supp. 2d 905, 915 (N.D. Ohio 2010), aff’d in part, rev’d in part, 499 F. App’x 538
(6th Cir. 2012), in which the Court of Appeals for the Sixth Circuit considered and affirmed a
district court’s reduction. Concluding that billing in quarter-hour increments generates a fee that
is 15% higher than billing in at a tenth-of-an-hour, that court “split the difference” and reduced the
amount of time awarded by 7.5%. Bench Billboard Co. v. City of Toledo, 759 F. Supp. 2d 905,
915 (N.D. Ohio 2010), aff’d in part, rev’d in part, 499 F. App’x 538 (6th Cir. 2012).
19
Following suit, here, the Court will apply a 7.5% reduction and reduce the 929.25 hours
entered by Justin Gilbert to 859.56 hours and the 407.75 hours entered by Jessica Salonus to 377.17
hours. Multiplied by their hourly rates, as discussed above, the lodestar amount and presumptively
reasonable fee is $343,824.00 for time billed by Justin Gilbert and $103,721.75 for time billed by
Jessica Salonus, totaling $447,545.75.
Deducting the $105,000 offset previously discussed
produces a total of $342,545.75 as the lodestar fee.
2.
Johnson Factors
Last, Defendant makes several arguments under the Johnson factors as to why the lodestar
value should be adjusted downwards. The Court, however, does not find these arguments
persuasive.
First and foremost, the critical factor in determining the reasonableness of a fee award is
the degree of success obtained. See Hobby, 506 U.S. at 114. Plaintiffs have been particularly
successful in this litigation. When Plaintiffs’ counsel took on L.H.’s case, L.H. had lost at the state
due process level. Now, L.H.’s right to be mainstreamed, avoiding placement in a full time,
segregated classroom located in a different school outside of his neighborhood zone, has been
vindicated. L.H.’s parents’ right to appropriate reimbursement for payments made to TMS has
also been vindicated. This case has resulted in multiple opinions favorable to Plaintiffs regarding
issues such as application of the Roncker factors as to a child with an intellectual disability and the
schooling of a child with an intellectual disability at a Montessori school.5 Plaintiffs’ counsel also
5
See L.H. v. Hamilton Cty. Dep’t of Educ., 900 F.3d 779 (6th Cir. 2018); L.H. v. Hamilton
Cty. Dep’t of Educ., No. 1:14-cv-126, 2018 WL 6069161 (E.D. Tenn. Nov. 20, 2018); L.H. v.
Hamilton Cty. Dep’t of Educ., No. 1:14-cv-126, 2017 WL 2553421 (E.D. Tenn. June 2, 2017);
L.H. v. Hamilton Cty. Dep’t of Educ., No. 1:14-cv-126, 2016 WL 6581235 (E.D. Tenn. Nov. 4,
2016); L.H. v. Hamilton Cty. Dep’t of Educ., No. 1:14-cv-126, 2015 WL 1926226 (E.D. Tenn.
Apr. 27, 2015).
20
notes that L.H. helped to galvanize Hamilton County in making reforms for integrating more
children who have special needs. Counsel notes that after L.H. prevailed before this Court,
Hamilton County’s Director of Special Education presented plans to the school board to provide
more opportunities for children with disabilities.
Factors such as the time and labor involved, the novelty and difficulty of the questions, and
the skill requisite to perform the services also point in favor of Plaintiffs. As previously mentioned,
this case has lasted nearly five years, and has resulted in over 250 docket entries at the district
court level, a seven-day trial at the district court level, and an oral argument before the Court of
Appeals for the Sixth Circuit. This lawsuit involved issues regarding Down Syndrome generally
and L.H.’s progress in school specifically, three different relevant schools (Normal Park, Red Bank
CDC, and TMS), the standard for mainstreaming disabled students, the roll of experts, teachers,
and educational staff members in IDEA cases, as well as appropriate private placement for
purposes of reimbursement under the IDEA, among other issues. This Court has previously
commented that this was a difficult case, and that the evidence, when considered as a whole, was
“extremely close.” (Doc. 172.) Plaintiffs’ counsel additionally comments that HCDE was
represented by seasoned and experienced lawyers. Plaintiffs’ counsel remarks he agrees with the
opening comment of opposing counsel during oral argument before the Sixth Circuit, where he
stated, “Judges, the case before you this morning is arguably the most important special education
case that the Sixth Circuit has considered in the past thirty-five years.”
As to the preclusion of other employment by the attorney due to acceptance of the case,
Plaintiffs’ counsel declares that the complexity of L.H.’s case prevented him from taking on at
least twenty other education or employment law cases. The Court has no reason to disbelieve this
assertion, as this averages approximately four lost cases per year. Defendant asks too much in
21
arguing that Plaintiffs’ counsel should have described cases which were lost in detail and offered
information in support. Because this is a significant number of cases, this factor weighs in favor
of awarding the full lodestar value.
Most of the remaining Johnson factors—such as the customary fee, whether the fee is fixed
or contingent, the experience, reputation and ability of the attorneys, and awards in similar cases—
have already been addressed, above. Two additional factors—the undesirability of the case and
the nature and length of the professional relationship with the client—also favor Plaintiffs. When
Plaintiffs’ counsel took on the case, L.H. had already lost at the due process level, and as discussed
above, Plaintiffs’ counsel was wary of the potential for significant monetary losses. Plaintiffs’
counsel states that the attorney client relationship in this case has held tight, L.H.’s parents having
recently traveled to Cincinnati to watch oral arguments in person.
The final factor which has not yet been addressed—time limitations imposed by the client
or circumstances—likely weighs in favor of Defendant. Plaintiffs do not make any argument they
were under a time limitation or constraint in this matter after the initial due process phase. Mindful,
however, that the degree of success obtained is the most important factor in determining the
reasonableness of the fee award, and in light of many of the other factors weighing in Plaintiffs’
favor, the Court declines to adjust the lodestar value based on this single factor. See Hobby, 506
U.S. at 114.
Because the Johnson factors do not present an occasion to deviate from an award of the
previously calculated lodestar value in this case, the Court will ORDER an award of $342,545.75
in attorney’s fees to Plaintiff’s counsel.
22
C.
Costs
Plaintiffs request reimbursement of costs totaling $6,703.75. In support, Plaintiffs have
submitted invoices for photocopies, litigation support services, and court filing fees. (Doc. 253-1
at 42-47.) In response, Defendant states that Plaintiffs provided appropriate documentary support
for the costs they incurred. (Doc. 255 at 28.) Accordingly, the Court will ORDER an award of
$6,703.75 in costs.
III.
CONCLUSION
In conclusion, the Court will GRANT IN PART the motion by Plaintiffs for attorney’s
fees and costs. (Doc. 252.) Accordingly, the Court will ORDER Defendant to pay Plaintiffs
$342,545.75 in attorney’s fees and $6,703.75 in costs, totaling an amount of $349,249.50. The
Court will DENY AS MOOT Plaintiffs’ motion to file a supplemental declaration regarding
Plaintiffs’ petition for attorney’s fees. (Doc. 262.)
An Order Will Enter.
ENTER:
/s/___________________________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
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