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A. v. Hartford Board of Education

United States District Court, D. Connecticut

January 17, 2017

A., by his Parent and Next Friend Mr. A., and MR. A., Plaintiffs,
v.
HARTFORD BOARD OF EDUCATION and NEW BRITAIN BOARD OF EDUCATION, Defendants, NEW BRITAIN BOARD OF EDUCATION, Plaintiff,
v.
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.

         Under 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, 2016).[1] The 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, 259.)[2]

         I. Legal Standards Governing Fee Awards

         A. IDEA Cases

         The 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 finds that;

(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; or
(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 (b)(7)(A).

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).

         B. Section 504, ADA, and § 1983 Actions

         In its 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.

         C. 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)).

         The 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. 1999).

         To 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)).

         II. Reasonable Hourly Rate

         "[Determination 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))).

         Consistent 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.[3]

         A. Prevailing Attorney Market Rate

         At the 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.[4] 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 inquiry.

         This case required substantial time and labor, at the administrative stage, the compliance stage, and in these court proceedings.[5] 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.

         The 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 complexity).)[6] Substantial skill was required to navigate this increasingly fact-intensive case through its various stages.

         The "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 hours expended).

         Attorney 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.[7] 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.)

         Attorney 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.)

         In addition to the opinions of Attorneys Shaw, Yavis, and Berliner, the court considers the rates awarded in prior cases.[8] The 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. 2008).

         Messier 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.

         Doe 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.[9]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 Shaw's ...


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