Opinion
20-CV-8380 (ALC)(SN)
02-16-2022
S.P., on behalf of M.P., Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.
TO THE HONORABLE ANDREW L. CARTER, JR.:
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
On behalf of her son M.P., S.P. seeks reasonable fees as a prevailing party under the feeshifting provisions of the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973. This action concerns the failure by the New York City Department of Education (“DOE”) to provide M.P. with a Free Appropriate Public Education (“FAPE”), which S.P. challenged through an impartial hearing. In 2017, the impartial hearing officer (“IHO”) ordered all of S.P.'s requested relief, making her the prevailing party under the IDEA and entitling her to reasonable attorneys' fees under the IDEA and Rehabilitation Act's fee-shifting provisions. The DOE does not contest that S.P. is owed attorneys' fees but argues that the rates and hours sought by S.P.'s counsel are unreasonable.
I recommend that the Court grant S.P.'s motion for attorneys' fees and costs in part but reduce the awarded attorneys' fees from $102,447.32 to $97,297.32. 1
BACKGROUND
As early as 2012, the DOE classified M.P. as a student with a learning disability, but neither M.P.'s school nor the DOE provided sufficient remediation to address his disability. ECF No. 21 (Grant Decl.) Ex. A at 2, 4-6. M.P.'s mother, S.P., spent multiple years asking for assistance from his school and the DOE, all to no avail. Id. at 5-10. In September 2016, S.P. contacted Advocates for Children of New York (“AFC”), which agreed to represent her in connection with M.P.'s educational needs and asked Arnold & Porter to serve as pro bono cocounsel. Grant Decl. ¶¶ 4, 6.
I. The DOE Hearing
From November 2016 to May 2017, attorneys from AFC and Arnold & Porter researched M.P.'s educational needs and investigated types of appropriate relief to draft a request for an impartial hearing. Id. ¶ 9. The attorneys filed a request for an impartial hearing pursuant to the IDEA, 20 U.S.C. § 1415(f)(1), Section 504 of the Rehabilitation Act, and New York Education Law on May 11, 2017. Grant Decl. Ex. B.
The parties attended a resolution session on May 30, 2017, which S.P. and her attorneys believed to be productive. Grant Decl. ¶ 13. During a subsequent prehearing conference with the IHO on June 13, 2017, the DOE representative stated that the case was “complex” and had a “very complex procedural history, ” and that “the parties are actively working together in the hopes that we . . . will not need a hearing date.” Grant Decl. Ex. D 4:15-19. Over the next few weeks, the parties continued to discuss settlement on several occasions, until-without explanation-the DOE ceased engaging in settlement discussions. Grant Decl. ¶ 16. S.P.'s attorneys asked multiple times whether the case could be settled without a hearing, but the DOE did not respond with any substantive information. Id. ¶¶ 16-17. S.P.'s attorneys consequently 2 planned for the hearing, which included preparing exhibits, witnesses, cross-examinations, and opening and closing statements. Id. ¶ 17.
On July 14, 2017, five days before the scheduled hearing, the DOE made clear that it intended to proceed and joined in S.P.'s request to schedule a second day for the hearing because the case was “highly complex.” Grant Decl. Ex. F. In that same email, the DOE indicated for the first time that it planned to file a motion to dismiss regarding S.P.'s allegations as to the three school years from 2012 to 2015. Id. The DOE then filed the motion to dismiss on July 17, 2019, two days before the hearing, requiring S.P.'s attorneys to prepare arguments to respond. Grant Decl. ¶ 19. The next day-the day before the hearing-the DOE informed S.P.'s attorneys that the DOE was reserving its right to call rebuttal witnesses (necessitating further preparation by S.P.'s attorneys for arguments regarding the burden of production and order of witnesses), that it did not plan to call any witnesses in its case (even though the DOE had previously said that it would call two witnesses and S.P.'s attorneys had prepared for their cross-examination), and that the DOE would not contest its failure to provide M.P. with appropriate services during the 20152016 and 2016-2017 school years but would continue to contest the relief requested and the claims for the 2012-2015 school years. Id. ¶¶ 20, 22 & Ex. G.
The IHO conducted the hearing over two days, July 19, 2017, and August 10, 2017, with 74 exhibits entered into evidence and five witnesses testifying on S.P.'s behalf. Grant Decl. Ex. A at 3 nn.2-3. S.P. was represented by then-Senior Attorney Lucy McMillan and associate Lauren Fraid from Arnold & Porter and Ashley Grant of AFC. Grant Decl. ¶ 7. On October 10, 2017, the IHO issued a decision on the merits of the case, finding that it was unnecessary to decide the DOE's motion to dismiss because the “gross violation of the IDEA” warranted the full 3 relief sought by S.P. Grant Decl. Ex. A at 14-18. The DOE did not appeal the order. Grant Decl. ¶ 25.
II. This Action
Pursuant to the fee-shifting provisions of the IDEA and Rehabilitation Act, S.P.'s attorneys submitted a fee request to the DOE on September 12, 2019. ECF No. 22 (Shore Decl.) ¶ 10. The DOE responded with a settlement offer over a year later, and the parties were unable to reach agreement. Id. ¶ 11. S.P.'s attorneys subsequently filed this action, the work for which has been performed by AFC's Director of Litigation, Rebecca Shore. Id. ¶ 26. After an unsuccessful settlement conference-the DOE first asked to adjourn, then attended without the authority to make a settlement offer, id. ¶ 13-and attempts to resolve the litigation without further Court involvement, id. ¶ 15, S.P. moved for summary judgment for attorneys' fees and costs. ECF No. 19. S.P. seeks $102,447.32 in fees and $1,032.62 in costs for the work performed by Ms. McMillan, Ms. Fraid, and Ms. Grant for the hearing and for the work performed by Ms. Shore in this federal case. ECF No. 28 (Shore Reply Decl.) ¶ 6; Shore Decl. Ex. B.
III. Plaintiff's Attorneys
At the time of the hearing, Ms. McMillan was a Senior Attorney at Arnold & Porter. She had 12 years of special education litigation experience and had handled over fifty special education matters. Grant Decl. ¶ 26; see Grant. Decl. Ex. H. Ms. McMillan was deeply involved in the hearing from beginning to end: she conducted an intake meeting with S.P., reviewed records, revised hearing filings, communicated with the DOE, prepared witnesses, attended the hearing, and drafted and revised the post-hearing closing brief. Grant Decl. Ex. B; see Grant Decl. Exs. E-G. 4
Ms. Fraid was a seventh-year associate at Arnold & Porter at the time of the hearing. See Grant Decl. Ex. J. Like Ms. McMillan, she worked on the hearing from its earliest stages until after its conclusion, which included reviewing records, drafting hearing filings, preparing witnesses (including an expert witness cited extensively in the IHO's findings of fact and decision, see Grant Decl. Ex. A), drafting and revising the post-hearing closing brief, and following up with the DOE about the implementation of the IHO's order. Grant Decl. Ex. B.
Ms. Grant is a Supervising Staff Attorney at AFC and had four years' experience in special education law at the time of the hearing. Shore Decl. ¶ 19. She was the primary AFC attorney who worked with S.P. and M.P. for the hearing. She directs AFC's Postsecondary Readiness Project, which focuses on helping older youth receive educational support through mechanisms like S.P.'s hearing. Grant Decl. ¶¶ 1, 7 & Ex. K. Like Ms. McMillan and Ms. Fraid, Ms. Grant worked on S.P.'s case from its inception and was closely involved with pre-hearing preparation, post-hearing briefing, and implementation of the IHO's order. Grant Decl. Ex. C.
Ms. Shore, AFC's Director of Litigation, represents S.P. in this action. Shore Decl. ¶ 20. She has over 20 years' experience and has worked on special education and disability litigation throughout her career. Id. She has represented parents in federal court in numerous IDEA appeals and enforcement proceedings, as well as complaints for attorneys' fees. Id. ¶ 21. Ms. Shore has presented locally and nationally on education law and civil rights litigation. Id. ¶ 22.
DISCUSSION
I. Legal Standard
S.P.'s motion is for summary judgment. See ECF No. 18. To prevail, she must show that “there is no genuine dispute as to any material fact, ” and that she is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 5
A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The movant bears the burden of ‘demonstrat[ing] the absence of a genuine issue of material fact.'” Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting Celotex, 477 U.S. at 323). The Court must “construe the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in its favor.” Gilman v. Marsh & McLennan Cos., Inc., 826 F.3d 69, 73 (2d Cir. 2016).
If S.P. meets her burden, as the non-moving party, the DOE “must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). The DOE may not rely on “mere speculation or conjecture as to the true nature of the facts, ” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010), but must establish a genuine issue of fact by “citing to particular parts of materials in the record, ” Fed.R.Civ.P. 56(c)(1)(A).
The DOE concedes the majority of the facts set out in S.P.'s motion: “the only point of contention is the reasonableness of her fee demands.” ECF No. 26 (Opp.) at 2 n.1.
II. Calculation of Fees Under the IDEA
“The parties agree” that S.P. is “a plaintiff who receive[d] IHO-ordered relief on the merits in an IDEA administrative proceeding” and therefore a “prevailing party” entitled to attorneys' fees under the IDEA and Rehabilitation Act. A.R. ex rel. R.V. v. N.Y.C. Dep't of Educ., 407 F.3d 65, 75 (2d Cir. 2005); see 20 U.S.C. § 1415(i)(3)(B); 29 U.S.C. § 794a(b). The fees that the Court awards must be “reasonable” and “based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(B)-(C). After determining a reasonable hourly rate, the Court multiples that rate by 6 “the number of hours reasonably expended on the litigation, ” i.e., the “lodestar method.” A.R., 407 F.3d at 79 (quoting G.M. v. New Britain Bd. of Educ., 173 F.3d 77, 84 (2d Cir. 1999)). “[T]here is . . . a strong presumption that the lodestar figure represents a reasonable fee.” Id. (alteration in original) (quoting G.M., 173 F.3d at 84).
The fee applicant bears the burden of establishing the hours expended and hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The applicant must present “satisfactory evidence [of the hourly rates]-in addition to the attorney's own affidavits.” Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1059 (2d Cir. 1989) (internal quotation omitted).
A. Reasonable Hourly Rate
S.P. asks the Court to set a $400 hourly rate for Ms. McMillan and a $350 hourly rate for Ms. Fraid, both of which S.P. describes as “significantly lower” than their customary rates. Shore Decl. ¶ 17. For Ms. Grant, S.P. asks for a $270 hourly rate, “the rate that AFC charges for all of its attorneys with four years' experience.” Id. ¶ 19. And for Ms. Shore, S.P. asks for a $420 hourly rate “consistent with the market rates for an attorney with more than twenty years' experience.” Id. ¶ 23. Other Arnold & Porter and AFC attorneys and staff worked on the hearing and this litigation, but S.P. seeks fees only for these four attorneys. Id. ¶¶ 24-26. The DOE makes two interrelated arguments against S.P.'s requested rates: first, that the requested rates exceed rates awarded to other attorneys in IDEA fee cases in this District; and second, that the Johnson factors merit reduction of the requested rates. 7
In support of these hourly rates, S.P. provides declarations from other attorneys who specialize in special education law and practice in this District. See ECF Nos. 23-25. While some courts have declined to consider such evidence, I find that sworn statements from attorneys who practice in the relevant area in the District of the actual rates they charge to be one factor for the Court in determining a reasonable rate.
As to both Arnold & Porter attorneys, the DOE insists that the Court should not take into consideration Arnold & Porter's size and reputation in determining a reasonable fee because it was S.P.'s prerogative to opt for “the Cadillac Escalade, not the Honda Civic.” Opp. at 6 (quoting Beastie Boys v. Monster Energy Co., 112 F.Supp.3d 31, 52 (S.D.N.Y. 2015)). The DOE is mistaken. A firm's size and overhead may be considered as “a relevant factor in assessing its members' reasonable rate.” C.D. v. Minisink Valley Cent. Sch. Dist., No. 17-cv-7632 (PAE), 2018 WL 3769972, at *6 (S.D.N.Y. Aug. 9, 2018); see also E.F. v. N.Y.C. Dep't of Educ., No. 11-cv-5243 (GBD)(FM), 2012 WL 5462602, at *5 (S.D.N.Y. Nov. 8, 2012) (“[T]he size and caliber of the firm in question have a significant bearing on what rates are charged.... For that reason, a movant may obtain higher compensable rates if represented by a large urban firm, since such firms typically charge more per hour to cover a higher overhead.” (internal quotation marks and citations omitted)). Arnold & Porter is such a firm, see Shore Decl. Ex. A, and its size and reputation are appropriate factors to consider.
In determining a reasonable fee, the Court “must ascertain whether ‘the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'” Chambless, 885 F.2d at 1058-59 (quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). “The reasonable hourly rate is the rate a paying client would be willing to pay . . . bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Ortiz v. City of New York, 843 Fed.Appx. 355, 359 (2d Cir. 2021) (quoting Lilly v. City of New York, 934 F.3d 222, 230 (2d Cir. 2019)). The Court also considers the Johnson factors:
(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.Lilly, 934 F.3d at 228. “A district court need not recite and make separate findings as to all twelve Johnson factors, provided that it takes each into account in setting the attorneys' fee award.” A.G. v. N.Y.C. Dep't of Educ., No. 20-cv-7577 (LJL), 2021 WL 4896227, at *4 (S.D.N.Y. Oct. 19, 2021) (quoting C.D. v. Minisink Valley Cent. Sch. Dist., No. 17-cv-7632 (PAE), 2018 WL 3769972, at *4 (S.D.N.Y. Aug. 9, 2018)). 8
“The ‘community' to which the IDEA's fee calculation provision refers is typically measured by the geographic area in which ‘the action was commenced and litigated.'” A.R., 407 F.3d at 79 (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 369 F.3d 91, 94 (2d Cir. 2004) (per curiam)). Where the legal dispute has been pursued through an action in federal court, “[n]ormally a district court, awarding attorney's fees under [a fee-shifting statute], will consider the prevailing rates in the district in which the court sits.” Id. (quoting Polk v. N.Y. State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir.1983)) (alterations in A.R.). “The contacts between the administrative proceedings and the Southern District, which is the place . . . where the facts giving rise to [S.P.'s] successful claims occurred, and where the lawyers who represented [her] hang their shingles, appear clearly to predominate, ” id. at 81, and the Court therefore looks to the prevailing rates for special education attorneys in this District.
Almost a decade ago, District Judge Karas cautioned that “the rates awarded in [] IDEA cases . . . are low compared to the rates awarded to attorneys in other civil rights cases, ” G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F.Supp.2d 415, 430 (S.D.N.Y. 2012), but that “the law does not support the contention that attorneys handling IDEA cases should be compensated at a lower rate than that which they normally command in other cases, ” id. at 431 (quoting Mr. X v. N.Y. State Educ. Dep't, 20 F.Supp.2d 561, 564 (S.D.N.Y. 1998)). Fees “should be based on prevailing market rates, and current rates, rather than historical rates.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (cleaned up). This is especially true where fee-shifting statutes like the IDEA are concerned because “[r]ecycling rates awarded in prior cases without considering whether they continue to prevail may create disparity between compensation available under [a fee shifting statute] and compensation available in the marketplace . . . [which] undermines [the statute's] central purpose of attracting competent 9 counsel to public interest litigation.” Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005); see also G.B., 894 F.Supp.2d at 430-33 (collecting cases on prevailing market rates over time for IDEA cases in this District). I weigh the recency of the parties' cited attorneys' fee awards accordingly in considering the reasonableness of S.P.'s request.
1. Ms. McMillan and Ms. Shore
The $400 rate sought for Ms. McMillan and the $420 rate sought for Ms. Shore are comparable to rates courts in this District have ordered for attorneys with similar experience. See C.D., 2018 WL 3769972, at *6 (awarding attorney with more than 10 years of special education litigation experience hourly rate of $400); E.F. ex rel. N.R. v. N.Y.C. Dep't of Educ., No. 11-cv-5243 (GBD)(FM), 2014 WL 1092847, at *4 (S.D.N.Y. Mar. 17, 2014) (finding $475 hourly rate reasonable for an attorney with “significant experience in the field of special education law”); see also D.B. ex rel. S.B. v. N.Y.C. Dep't of Educ., No. 18-cv-7898 (AT)(KHP), 2019 WL 6831506, at *3 (S.D.N.Y. Apr. 22, 2019), report and recommendation adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019) (“Courts in this District generally have awarded between $300 and $475 per hour to senior or experienced attorneys in IDEA cases, landing on the higher end of the range based on greater experience and complexity of the matter.”).
The DOE points to S.J. v. N.Y.C. Dep't of Educ., No. 20-cv-1922 (LGS)(SDA), 2021 WL 100501 (S.D.N.Y. Jan. 12, 2021), modified, 2021 WL 536080 (S.D.N.Y. Jan. 25, 2021), in which the court found that a $360 hourly rate was reasonable for attorneys with 10 and 17 years of experience in IDEA litigation. But, applying the Johnson factors, the court explained that cases like S.J. that are “straightforward and uncontested may warrant reasonable attorneys' fees at the lower end of the range, even in light of a great degree of success attained.” Id. at *4. The hearing in S.J. was uncontested and lasted less than two hours, regarding “relatively 10 straightforward issues.” Id. The DOE itself acknowledged the complexity of the hearing underlying this case, which lasted multiple days. The DOE's own conduct required more skill and labor by S.P.'s attorneys, who responded to the DOE's eleventh-hour motion to dismiss and prepared to cross-examine witnesses that the DOE decided not to call only the day before the hearing. S.J. is readily distinguishable.
The same distinction applies to R.G. v. N.Y.C. Dep't of Educ., No. 18-cv-6851 (VEC), 2019 U.S. Dist. LEXIS 166370 (S.D.N.Y. Sep. 26, 2019), where District Judge Caproni awarded an hourly rate of $350 to a senior partner with over 10 years of experience. In so doing, Judge Caproni relied specifically on a decision from the prior year which had awarded $360 per hour to attorneys from the same firm litigating R.G. 2019 U.S. Dist. LEXIS 166370, at *5. Moreover, in the R.G. hearing, the DOE contested only the necessity of an individualized education program, id., whereas the DOE moved to dismiss S.P.'s claims entirely for multiple school years. And in C.B. v. N.Y.C. Dep't of Educ., No. 18-cv-7337 (CM), 2019 WL 3162177 (S.D.N.Y. July 2, 2019), the court awarded attorneys with approximately 20 years of experience a $400 hourly fee where the DOE produced two witnesses and submitted evidence in a proceeding that lasted 9.8 hours. The court found the fees reasonable in part because, “while the DOE may not have put on the most vigorous defense, and . . . the case may have been ‘relatively straightforward,' ‘straightforward' is not a synonym for ‘uncontested.'” 2019 WL 3162177, at *8. S.P.'s hearing was neither straightforward nor uncontested.
The DOE proposes that Ms. McMillan's and Ms. Shore's rates should be reduced to $360 an hour. Such a rate might be appropriate if “the underlying administrative action [had] involved relatively minimal effort, and involved a brief, uncontested hearing resulting in limited success.” B.B. v. N.Y.C. Dep't of Educ., No. 17-cv-4255 (VEC)(SDA), 2018 WL 1229732, at * 2 11 (S.D.N.Y. Mar. 8, 2018) (awarding attorney $350 hourly rate). Those are not the facts before the Court. Not only did the DOE contest S.P.'s hearing, it stopped participating in settlement discussions without any substantive explanation, and it moved to dismiss some of S.P.'s claims just two days before the hearing was scheduled to take place. Accordingly, Ms. McMillan's expertise was critical to S.P.'s success. The DOE's conduct in this litigation has similarly caused Ms. Shore to expend potentially unnecessary time and effort (e.g., attending the settlement conference without the authority to make a settlement offer).
In light of the prevailing rates for special education attorneys in this District, Ms. McMillan and Ms. Shore's qualifications and experience with IDEA litigation, the expertise required for S.P.'s hearing and this action, and the successful outcome of the hearing-the “most critical factor in determining the reasonableness of a fee award, ” M.D. v. N.Y.C. Dep't of Educ., No. 17-cv-2417 (JMF), 2018 U.S. Dist. LEXIS 156923, at *17 (S.D.N.Y. Sep. 14, 2018) (internal quotation omitted)-I recommend that the Court award Ms. McMillan an hourly rate of $400 and Ms. Shore an hourly rate of $420.
2. Ms. Fraid and Ms. Grant
The $350 hourly rate requested for Ms. Fraid and the $270 hourly rate requested for Ms. Grant are, like the rates for Ms. McMillan and Ms. Shore, largely comparable to rates that courts in this District have ordered for attorneys with similar experience. See D.B., 2019 WL 6831506, at *5 (finding $300 hourly rate appropriate for fourth-year associate whose “skills as a litigator were directly translatable to her work on this matter”); P.R. v. N.Y.C. Dep't of Educ., No. 17-cv-4887 (LTS)(KNF), 2018 WL 4328012, at *2-3, *11 (July 19, 2018), report and recommendation adopted, 2018 WL 4301366 (S.D.N.Y. Sept. 10, 2018) (awarding $300 hourly rate to associates with two and five years of experience). But see B.B. v. N.Y.C. Dep't of Educ., No. 17-cv-04255 12 (VEC)(SDA), 2018 U.S. Dist. LEXIS 15101, at *6 (S.D.N.Y. Jan. 29, 2018) (reducing hourly rate from $300 to $200 for attorney with five years of experience but only one year of IDEA specific practice).
The DOE's cited cases are again distinguishable, as discussed above. In further support, the DOE cites K.L. v. Warwick Valley Cent. Sch. Dist., No. 12-cv-6313 (DLC), 2013 U.S. Dist. LEXIS 126933 (S.D.N.Y. Sep. 5, 2013). That eight-year-old case, however, “involved an early settlement, and presented an utterly straightforward IDEA grievance.” 2013 U.S. Dist. LEXIS 126933, at *22. The plaintiff's attorney himself “characterized the issues presented as simple enough to resolve in one day.” Id. Despite its current protestations that this is a “workaday case in a workaday world, ” the DOE acknowledged the complexity of S.P.'s case on multiple occasions during the hearing process and, in the present litigation, has conducted itself in a manner that has not facilitated an early (or, indeed, any) settlement. The Court does not follow the DOE's logic that S.P.'s argument that the DOE should have agreed to the requested fees earlier somehow suggests that “Plaintiff saw the matter as fairly straightforward.” Opp. at 13. S.P.'s desire to resolve the case efficiently is just that; in arguing otherwise, the DOE ascribes arguments and motivations to S.P. and her counsel that are unwarranted.
The second-year associate in C.B. was awarded a $200 hourly rate in part because he spent over half the time he worked on the case “preparing a cookie-cutter complaint largely identical to complaints [the firm] ha[d] submitted in other actions for attorney's fees.” 2019 WL 3162177, at *9. Both Ms. Fraid and Ms. Grant contributed extensively to S.P.'s case at the administrative hearing stage, and there is no suggestion that their work was in any way rote or perfunctory. Cf. G.T. v. N.Y.C. Dep't of Educ., No. 18-cv-11262 (GDB)(BCM), 2020 U.S. Dist. LEXIS 25557, at *14-15 (S.D.N.Y. Feb. 12, 2020), report and recommendation adopted, 2020 13 WL 1503508 (S.D.N.Y. Mar. 30, 2020) (awarding $200 hourly rate to attorneys with less than two years of IDEA-related experience who worked only on the fees action, not the underlying hearing).
Based on “an assessment of the facts of this case, ” M.D., 2018 U.S. Dist. LEXIS 156923, at *9, the prevailing rates for special education attorneys in this District with comparable experience, Ms. Fraid's and Ms. Grant's qualifications and relevant experience, the expertise and labor required for S.P.'s hearing, and the successful outcome of the hearing, I recommend that the Court award Ms. Fraid an hourly rate of $350 and Ms. Grant an hourly rate of $270.
B. Hours Expended
“In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999).
As an initial matter, “the DOE is poorly positioned to object to the amount of time Plaintiff[] ha[s] spent litigating this action, having opposed both the underlying administrative claims and this action at every stage.” M.D. v. N.Y.C. Dep't of Educ., No. 17-cv-2417 (JMF), 2018 U.S. Dist. LEXIS 172717, at *3-4 (S.D.N.Y. Oct. 5, 2018). The DOE, however, asks the Court to apply an across-the-board reduction to the hours billed by S.P.'s counsel because S.P.'s case was improperly staffed, the work done before filing the request for a hearing was clerical or largely related to obtaining services for M.P., rather than litigating the underlying administrative proceeding, S.P.'s counsel billed excessively for pre-hearing preparation and post-hearing briefing, and the work for this fees action is “routine” and should not be compensated.
The DOE's argument that S.P.'s case was improperly staffed is puzzling. S.P. specifically does not seek attorneys' fees for eleven of the fifteen people who worked on this case to “avoid 14 any reduction for duplication.” Mot. at 10; Shore Decl. ¶¶ 26-27. Any inefficiencies that may have been created by delegating work to lower-level staffers-a claim that S.P. refutes-are mitigated by S.P.'s proactive reduction of the fees sought. The DOE will not bear the cost of, as it puts it, “a white-shoe law firm's training expenses.” Opp. at 16. Additionally, S.P.'s staffing at the hearing was consistent with staffing that has been approved by other courts in this District. See, e.g., C.D., 2018 WL 3769972, at *5-7 (granting fees for three attorneys who worked on administrative hearing).
The DOE next argues that some of the time billed by Ms. McMillan and Ms. Fraid as related to the hearing was uncompensable because it related to obtaining services for M.P, e.g., obtaining contact information, reviewing files, obtaining records, and communicating with medical providers to assess M.P. As the DOE's own cited case notes, however, “[s]o long as there is a meaningful relationship between the hours billed and the administrative proceeding, . . . the hours are reasonable and attorney's fees may be awarded.” Cook v. District of Columbia, 115 F.Supp.3d 98, 105 (D.D.C. 2015). The tasks the DOE lists are all clearly related to the hearing: record review and communication with medical providers about M.P.'s needs informed counsel's assessment of the claims he could assert and the relief that S.P. could seek on his behalf. Having reviewed Arnold & Porter's submitted time entries, see Shore Decl. Ex. B, I am satisfied that the time Ms. McMillan and Ms. Fraid billed was sufficiently related to the hearing to be compensable. As for the DOE's claim that S.P. seeks fees for clerical tasks, the DOE points to no entries that should be removed, and upon review of Arnold & Porter's time entries, I find this claim unavailing. Cf. O.R. v. N.Y.C. Dep't of Educ., 340 F.Supp.3d 357, 368 (S.D.N.Y. 2018) (excluding fees for “work of a secretarial nature, including copying a file, informing 15 individuals about hearing scheduling, preparing a bill, and having other ministerial communications with witnesses or clients”).
Third, the DOE argues that S.P.'s counsel billed excessively for pre-hearing preparation and post-hearing briefing. The DOE does not identify any particular time entries of concern but cites cases where fees were reduced for billing too many hours or not exercising proper “billing judgment.” Hensley, 461 U.S. at 434. These cases are again distinguishable. C.B. reviewed time entries that were “similar enough that they appear[ed] to be duplicates, ” which the court found to be “evidence that Plaintiff's attorneys did not exercise proper ‘billing judgment.'” 2019 WL 3162177, at *10, *11 (quoting Hensley, 461 U.S. at 434). No evidence of such duplication is present in the submitted time entries. In J.S. v. Carmel Cent. Sch. Dist., the court reduced one attorney's compensable time for hearing preparation for one of four hearings, but, excepting vague or block-billed entries, did not otherwise reduce his preparation time “[i]n light of the lengthy and complicated process for preparing for a hearing.” No. 10-cv-8021 (VLB), 2011 U.S. Dist. LEXIS 82169, at *20 (S.D.N.Y. July 26, 2011). And in Rotella v. Bd. of Educ., the court reduced the attorney's preparation time because the hearing lasted for only one hour and the billing record was not specific. No. 01-cv-0434 (NGG), 2002 U.S. Dist. LEXIS 507, at *12 (E.D.N.Y. Jan. 17, 2002). S.P.'s administrative hearing was contested, and the fees she seeks are concordant with awards in similar cases. See C.D., 2018 WL 3769972, at *8, *13 (awarding $141,576.45 in attorneys' fees and costs where litigation was “protracted”); E.F., 2014 WL 1092847, at *1-2 (adopting recommendation to award $110,343.51 in attorneys' fees where hearing was highly contested). I find that the hours billed by S.P.'s counsel in preparation for the hearing were reasonable and do not merit reduction. 16
The parties spar over whether it was reasonable for S.P.'s attorneys to spend approximately 80 hours drafting the post-hearing brief. The cases the DOE cites are not per se convincing, as they involved boilerplate briefs, not the extensive briefing that S.P. claims was necessary here. See A.D. v. N.Y.C. Dep't of Educ., No. 18-cv-3347 (VEC), 2019 U.S. Dist. LEXIS 47238, at *23 (S.D.N.Y. Mar. 21, 2019) (reducing time billed for drafting post-hearing closing statement because “Plaintiff's six-page closing statement primarily regurgitated the testimony of the three witnesses, used a boilerplate statement of the law governing a FAPE, and included little legal argument”); see also M.D., 2018 U.S. Dist. LEXIS 156923, at *14-15 (reducing compensable hours where Plaintiffs could have staffed the case more “leanly” but noting that “Plaintiffs' post-hearing briefs were necessary only because the DOE refused to settle what it now concedes were ‘indefensible' claims, forcing Plaintiffs to litigate the hearings to a conclusion”). For her part, S.P. points to C.B., where the court declined to reduce the award for the 29-page post-hearing brief because “[t]he fact that the DOE only made a five-minute-long closing statement should not limit Plaintiff's ability to make the argument she felt was necessary to win the case.” 2019 WL 3162177, at *11.
Neither party has clarified the length or nature of the post-hearing briefing beyond S.P.'s assertion that it was “extensive” and “necessary to respond to the DOE's arguments.” ECF No. 27 (Reply) at 8. Upon review of Arnold & Porter's submitted time sheets, and without further information about S.P.'s post-hearing brief's contents, I find that Ms. McMillan's 39.1 hours billed to drafting and revising the post-hearing brief and Ms. Fraid's 29.1 hours billed for the same appear “somewhat excessive” and merit a “modest reduction in compensable hours.” M.D., 2018 U.S. Dist. LEXIS 156923, at *15. A 20% reduction of their hours as to the post-hearing 17 brief is appropriate. See id. at *14 (holding same). Ms. McMillan's compensable hours for the post-hearing brief are accordingly reduced to 31.3, and Ms. Fraid's to 23.3.
Finally, as have other courts before me, I reject the DOE's argument that work on the fee application should not be compensated. “Post-decision work by counsel that is reasonably related to implementing the relief obtained is clearly compensable under the IDEA.” D.B., 2019 WL 6831506, at *6 (citing M.D. v. N.Y.C Dep't of Educ., No. 17-cv-2417 (JMF), 2018 WL 4386086, at *5 (S.D.N.Y. Sept. 14, 2018) (“Generally, post-decision activities that are ‘useful and of a type ordinarily necessary to secure the final result obtained from the litigation' are compensable in the case of a statutory fee award.” (citation omitted) (emphasis in original))); see also C.B., 2019 WL 3162177, at *11-12 (awarding fees for fees action). S.P. seeks reimbursement for 17.2 hours of Ms. Shore's time drafting the initial fees complaint, preparing for a settlement conference, and drafting a declaration and briefs in support of this motion. See Shore Decl. Ex. B; Shore Reply Decl. Ex. A. The request is reasonable, and I recommend that the Court award S.P. Ms. Shore's fees for this federal litigation.
In sum, I recommend that the Court not reduce any of S.P.'s counsel's hours expended related to the administrative hearing or this case, except that Ms. McMillan's hours for the posthearing brief should be reduced by 20% from 39.1 hours to 31.3, and Ms. Fraid's hours for the post-hearing brief should be reduced by 20% from 29.1 hours to 23.3. This reduces the total amount of attorneys' fees awarded from $102,447.32 to $97,297.32.
III. Costs and Expenses
The DOE contends that S.P.'s claimed costs and expenses should be reduced because there is “no indication why Plaintiff needed to conduct over a thousand dollars of Lexis research” given her counsel's expertise. Opp. at 15 n.7. If the DOE means to suggest that S.P.'s 18 attorneys should have relied on their memories dismiss and out-of-turn witness application, and mistaken. The law is not static, and new decisio regularly. It would be irresponsible of S.P.'s co of representing their client. See Arbor Hill, 369 properly be included in a fee award”); D.B., 20 Plaintiff is entitled to an award of costs and exp court fees, as well as copying costs, transcript c research costs.”). I recommend that the Court a requested, $1,060.32.
CONCLUSION
I recommend that S.P.'s motion for attorneys' fees and costs be granted in part and that S.P. be awarded $97,297.32 in attorneys' fees and $1,060.32 in costs. 19
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Andrew L. Carter, Jr. at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Carter. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). 20