United States District Court, D. Connecticut
A., by his Parent and Next Friend Mr. A., and MR. A., Plaintiffs,
HARTFORD BOARD OF EDUCATION and NEW BRITAIN BOARD OF EDUCATION, Defendants, NEW BRITAIN BOARD OF EDUCATION, Plaintiff,
J.A., a Student, and MR. A., Parent and Next Friend of J, A., Defendants.
OPINION AND ORDER RE: ATTORNEYS' FEES AND COSTS
(DOCS. 198, 260)
GEOFFREY W. CRAWFORD, JUDGE.
the Individuals with Disabilities Education Act
("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). In its My
2016 Opinion and Order on the parties' cross-motions for
summary judgment, the court concluded that- although
Plaintiffs were not successful on ail of their claims in.
A. v, Hartford Board of Education, No. 11-0154 (Conn.
Dep't of Educ. Aug. 2, 2011) (the "due process
case")-they did obtain sufficient favorable
determinations to qualify as "prevailing parties."
A. v. Hartford Bd. of Educ. No.
3:11-CV-01381-GWC, 2016 WL 3950079, at *34 (D. Conn. My 19,
court invited the parties to file supplemental briefs on the
question of reasonable fees and costs in light of the
court's rulings on the substantive issues presented in
the cross-motions for summary judgment. Id. at *36.
All parties have since filed supplemental briefs and
responses. (Docs. 244, 245, 246, 252, 253, 254, 255, 256,
Legal Standards Governing Fee Awards
court recounted the legal standards governing fee awards in
IDEA cases in its My 19, 2016 Opinion and Order. See
A., 2016 WL 3950079, at *34-35. The IDEA authorizes the
court to award "reasonable" attorneys' fees to
the prevailing party. 20 U.S.C. § 1415(i)(3)(B). The
IDEA requires that, if fees are awarded, they "shall be
based on rates prevailing in the community in which the
action or proceeding arose for the kind and quality of
services furnished. No bonus or multiplier may be used in
calculating the fees awarded under this subsection."
Id. § 1415(i)(3)(C). The statute further
directs the court to reduce the amount of fees awarded if it
(i) the parent, or the parent's attorney, during the
course of the action or proceeding, unreasonably protracted
the final resolution of the controversy; (ii) the amount of
the attorneys' fees otherwise authorized to be awarded
unreasonably exceeds the hourly rate prevailing in the
community for similar services by attorneys of reasonably
comparable skill, reputation, and experience;
(iii) the time spent and legal services furnished were
excessive considering the nature of the action or proceeding;
(iv) the attorney representing the parent did not provide to
the local educational agency the appropriate information in
the notice of the complaint described in subsection
Id. § 1415(i)(3)(F). Any such reductions,
however, "shall not apply in any action or proceeding if
the court finds that the State or local educational agency
unreasonably protracted the final resolution of the action or
proceeding or there was a violation of this section."
Id. § 1415(i)(3)(G).
Section 504, ADA, and § 1983
July 2016 Opinion and Order, the court analyzed
Plaintiffs' § 504, ADA, and § 1983 claims.
See A., 2016 WL 3950079, at *27-33. The court
granted summary judgment to the Hartford Board of Education
(HBOE) and the New Britain Board of Education (NBBOE) on each
of those claims. Id. at *36. Like the IDEA, the
statutes governing § 504, ADA, and § 1983 claims
include fee-shifting provisions, authorizing awards to the
"prevailing party." See 29 U.S.C. §
794a(b) (Section 504); 42 U.S.C. § 12205 (ADA); 42
U.S.C. § 1988(b) (Section 1983). Each of those
fee-shifting provisions permits the court to award a
"reasonable" fee to the prevailing party. As
discussed below, since Defendants prevailed on these claims,
no fees are awarded.
Methodology for Calculation of Fee
HBOE and Plaintiffs dispute the methodology that the court
should use to calculate attorneys' fees under the IDEA.
Plaintiffs contend that under Perdue v. Kenny A. ex. rel
Winn, 559 U.S. 542 (2010), the court must use the
"lodestar approach." (See Doc. 126-1 at
103 n.18.) HBOE asserts that, notwithstanding
Perdue, the court should follow the approach taken
in Arbor Hill Concerned Citizens Neighborhood Association
v. County of Albany, in which the Second Circuit found
the "lodestar" metaphor unhelpful, and advanced a
multifactor analysis including the twelve so-called
Johnson factors to arrive at a "reasonable
hourly rate" and a "presumptively reasonable
fee." 522 F.3d 182, 190 (2d Cir. 2008). The twelve
Johnson factors are:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the level of skill required
to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5)
the attorney's customary hourly rate; (6) whether the fee
is fixed or contingent; (7) the time limitations imposed by
the client or the circumstances; (8) the amount involved in
the case and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the
"undesirability" of the case; (11) the nature and
length of the professional relationship with the client; and
(12) awards in similar cases.
Id. at 186 n.3 (citing Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).
court concludes that best course is to avoid becoming fixated
on any particular method, and instead to consider both
Arbor Hill and Perdue in resolving the fees
question. See Millea v. Metro-North R.R. Co., 658
F.3d 154, 166 (2d Cir. 2011) (relying on both Arbor
Hill and Perdue); Echevarria v. Insight Med.,
P.C., 102 F.Supp.3d 511, 515 n.2 (S.D.N.Y.2015)
(discussing Arbor Hill and Perdue, and
ultimately deciding to consider both); K.L. v. Warwick
Valley Cent. Sch. Dist. No. 12 Civ. 6313(DLC), 2013 WL
4766339, at *6 (S.D.N.Y. Sept. 5, 2013) (citing both
Perdue and Arbor Hill). However, since 20
U.S.C. § 1415(i)(3)(C) specifically directs the court
not to apply any bonus or multiplier, the court will not-as
it analyzes fees related to the due process hearing-consider
the "less objective factors" like risk of
litigation, complexity of issues, and skill of the attorneys.
Savoie v. Merchants Bank, 166 F.3d 456, 460 (2d Cir.
determine the amount of a prevailing party's fee award,
the court begins by calculating the "lodestar":
"the product of a reasonable hourly rate and the
reasonable number of hours required by the case."
Millea, 65 8 F.3d at 166 (citing Perdue and
Arbor HUT). Calculation of the "lodestar"
creates a "presumptively reasonable fee, " and,
absent "extraordinary circumstances, " the court
must calculate the lodestar figure "as a starting
point." Id. The fee applicant must "submit
appropriate documentation to meet 'the burden of
establishing entitlement to an award.'" Fox v.
Vice, 563 U.S. 826, 838 (2011) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983)).
Reasonable Hourly Rate
of a reasonable hourly rate 'contemplates a case-specific
inquiry into the prevailing market rates for counsel of
similar experience and skill to the fee applicant's
counsel.'" Townsendv. Benjamin Enters.,
Inc., 679 F.3d 41, 59 (2d Cir. 2012) (quoting
Farbotko v. Clinton Cty. of N.Y., 433 F.3d 204, 209
(2d Cir. 2005)). This inquiry may "include judicial
notice of the rates awarded in prior cases and the
court's own familiarity with the rates prevailing in the
district." Id. (quoting Farbotko, 433
F.3d at 209); see also Perdue, 559 U.S. at 551
(lodestar analysis looks to "the prevailing market rates
in the relevant community" (quoting Blum v.
Stenson, 465 U.S. 886, 895 (1984))).
with its prior indication, see A., 2016 WL 3950079,
at *35, the court uses current rather than historic hourly
rates. See Reiter v. MTA N.Y.C. Transit Autk, 457
F.3d 224, 232 (2d Cir. 2006); Messier v. Southbury
Training Sch., No. 3:94~CV-01706 (EBB), at 2-3 (D. Conn.
Oct. 18, 2011), ECF No. 1124 (absent finding that delay in
litigation was caused by paity seeking fees or that current
rate does not reflect loss attributable to delay, current
rate is appropriate for calculating lodestar amount in
protracted litigation). Here, the court cannot conclude that
any delay in this case was caused by Plaintiffs. The court
will therefore use current hourly rates.
Prevailing Attorney Market Rate
outset of this litigation in August 2011, Attorney Shaw
stated that his rate was $450 per hour for his services from
May 2010 to that date. (Doc. 142-2 at 58.) Attorney Shaw has
not attested to his customary hourly rate, or whether his fee
in this case was fixed or contingent. But he contends that a reasonable
current hourly rate for his work on this case is $500-a
figure that he says is his current (2014) billing rate for
"similarly complex matters." (See Doc.
126-4 at 6, ¶¶ 8-9.) He further contends that the
$500 rate is consistent with awards in other federal cases in
this district. Attorney Shaw also relies on the affidavits of
Attorneys John C. Yavis, Jr. and Lawrence W. Berliner. (Doc.
126-5.) HBOE maintains that Attorney Shaw's rate should
be $350. (See Doc. 173 at 37; Doc. 152 at 45; Doc.
210 at 6; Doc. 252 at 9.) NBBOE asserts that the current
prevailing rate is $400, and that the appropriate hourly rate
should be $375. (Doc. 1814 at 25; Doc. 199 at 11; Doc. 211 at
6; Doc. 246 at 9.) Against that backdrop of the parties'
divergent positions, the court turns to its case-specific
case required substantial time and labor, at the
administrative stage, the compliance stage, and in these
court proceedings. The administrative stage itself was
lengthy, with 13 days of hearings spanning five months. The
parties dispute whether all that time was necessary, but the
presence of two school boards increased the time required,
there were at least 12 different issues for resolution (as
identified by the Hearing Officer), and extensive evidence
was introduced as the parties attempted to show, among other
things, either Student's progress or lack of progress
during the school years at issue.
compliance and court litigation stages were similarly time
and labor intensive. Just 16 days after the August 2, 2011
hearing decision, Attorney Shaw contacted the Connecticut
State Department of Education (CSDE) alleging failure to
comply. The CSDE process continued-with questions at issue
regarding multiple alleged failures to comply-even as
litigation in this court commenced in September 2011. And, as
the court's previous rulings in this case suggest, the
litigation in court has been extensive. All stages included
difficult questions, although the complexity appears to have
increased over time. (Accord Doc. 126-5 at 89
(Attorney Berliner's opinion of increasing
Substantial skill was required to navigate this increasingly
fact-intensive case through its various stages.
"most critical" factor in the court's fees
analysis is the "degree of success obtained."
Eensley, 461 U.S. at 436. The court addresses that
factor below in its analysis of the number of hours expended.
See Favors v. Cuomo, 39 F.Supp.3d 276, 291 n.8
(E.D.N.Y. 2014) (reasoning that degree of success is
logically considered in assessing the reasonable number of
Shaw is a 1973 graduate of the University of Connecticut
School of Law, and has been in practice since 1974 with a
focus on cases involving the civil rights of persons with
disabilities. (Doc. 126-4 at 1, ¶¶ 1-2.) With more
than 40 years of legal experience, Attorney Shaw has been
involved in numerous such cases. (See Id. ¶ 3.)
As noted above, in support of his fee request, Attorney Shaw
relies on the affidavits of Attorneys John C. Yavis, Jr. and
Lawrence W. Berliner. Attorney Yavis is a 1961 graduate of Yale
Law School and has practiced law in Connecticut since that
time. (Doc. 126-5 at 2.) Attorney Yavis practiced principally
in the area of complex civil litigation from the late 1970s
through 2003. (Id. at 2-3.) He has served as a
special master, mediator, arbitrator, and has participated in
setting attorney and paralegal billing rates at his firm.
(See Id. at 3.) On the basis of his experience,
Attorney Yavis opines that the prevailing hourly rate
currently charged in complex civil litigation by Connecticut
attorneys with more than 40 years of litigation experience is
within the range of $500 to $550. (Id.)
Berliner has practiced law since 1983, and has concentrated
in the fields of special education law and disability rights
law since that time. (Id. at 6.) He served in the
Connecticut State Office of Protection and Advocacy for
Persons with Disabilities from 1983 to 2000, and has been in
private practice since 2000. (Id. at 6-7.) As of
January 1, 2013, Attorney Berliner's hourly rate is $400.
(Id. at 7.) Attorney Berliner opines that the
prevailing market rate for attorneys practicing special
education law in Connecticut is between $350 and $400 per
hour. for attorneys with between 17 and 32 years of practice,
but that the rate varies depending on experience, expertise,
and the complexity of the matter. (Id. at 8.)
Attorney Berliner is familiar with Attorney Shaw's
background and experience, and has reviewed materials from
this case as well as decisions in other cases before this
court. (See Id. at 8-9.) Based on Attorney
Shaw's experience and expertise and the novelty and
complexity of the issues in this case, Attorney
Berliner's opinion is that the prevailing hourly market
rate for Attorney's Shaw's work on this case is $500.
(Id. at 9-10.)
addition to the opinions of Attorneys Shaw, Yavis, and
Berliner, the court considers the rates awarded in prior
court approved an hourly rate of $250 for Attorney Shaw in
the IDEA case of C. G ex rel, Mr. & Mrs. G v. New
Haven Board of Education, 988 F.Supp. 60 (D. Conn.
1997). C.C. ex rel. Mrs. D. v. Granby Board of
Education, 453 F.Supp.2d 569 (D. Conn. 2006), was an
IDEA case in which Attorney Shaw requested a rate of $375 and
the court awarded a rate of $315. One year later, the court
awarded that same rate in another IDEA case, P. ex rel.
Mr. & Mrs. P. v. Newington Board of Education. 512
F.Supp.2d 89, 116 (D. Conn. 2007). M.K. ex rel. Mrs. K.
v. Sergi was a novel and complex IDEA case in which
Attorney Shaw requested a $400 rate and the court awarded a
$375 rate, noting Attorney Shaw's undisputed expertise in
this area of practice. 578 F.Supp.2d 425, 428 (D. Conn.
v. Southhury Training School is not an IDEA case, hut it
was prosecuted by Attorney Shaw as lead counsel, and involves
substantial analysis regarding a fee award. Messier
was a long-running class action suit (filed in 1994)
challenging conditions, services, and placement at an
institution for the mentally disabled. In 2015, after more
than 20 years of litigation, the court entered an order on
attorneys' fees. The court had ruled that it would use
current prevailing market rates, but observed that
counsel's fee application for billing during the first 16
years of the litigation did not account for increases in
prevailing market rates over time. The highest hourly rate
sought during the last four years of the litigation was $500.
The court found that all of the requested rates (including
the $500 rate) were "somewhat in excess of the
then-applicable prevailing market rates at any particular
time" and that they exceeded "what the record
fairly shows counsel has received in similar matters."
No. 3:94-CV-1706 (EBB), 2015 WL 1439288, at *5 (D. Conn. Mar.
27, 2015), appeal docketed, No. 15-1552 (2d Cir. May
11, 2015). But the court did not make the 20% downward
adjustment that defendants sought "because any such
modification would be nullified by the complementary upward
adjustment-also of about 20%-that would be required to update
all of counsel's past billing to the now-higher
prevailing market rates." Id.
v. Darien Board of Education was a "unique and
difficult" civil rights case, but it was not an IDEA
case and "did not require highly specialized knowledge
of the IDEA, disability law, or the public school
system." No. 3:llcvl581 (JBA), 2015 WL 8770003, at *3
(D, Conn. Dec. 14, 2015). In that case, the court concluded
that $450 was a reasonable rate for the Plaintiffs' lead
attorney, who had 35 years of jury trial experience.
Id. at *3-4.P.J. v. State of Connecticut is a
"complex and contentious" IDEA class action that
was commenced in 1991 and prosecuted by Attorney Shaw; in
that case, Magistrate Judge Martinez concluded that Attorney