Opinion
22 Civ. 1776 (VEC) (GWG)
08-04-2023
F.R., et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs F.R. and M.R., individually and on behalf of their son, A.R., brought this action against defendant New York City Department of Education (“DOE”) in connection with an administrative proceeding to enforce A.R.'s right to a “free and appropriate public education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs' enforcement claims have been resolved, and plaintiffs now move for attorney's fees, costs, and expenses. For the reasons that follow, plaintiffs' request should be granted in the amount of $39,760.37.
Declaration of Thomas Lindeman, filed Dec. 19, 2022 (Docket # 36) (“Lindeman Decl.”); Memorandum of Law, filed Dec. 19, 2022 (Docket # 37) (“Opp.”); Memorandum of Law, filed Jan. 24, 2023 (Docket # 42) (“Reply”); Letter from William DeVinney, filed Mar. 23, 2023 (Docket # 45) (“DeVinney Let.”); Notice of Motion, filed Mar. 24, 2023 (Docket # 50) (“Mot.”); Memorandum of Law, filed Mar. 24, 2023 (Docket # 51) (“Mem.”); Declaration of Tracey Spencer Walsh, filed Mar. 24, 2023 (Docket # 52) (“Walsh Decl.”). Plaintiffs' motion was originally filed on November 14, 2022 (Docket # 27) but was rejected by the Clerk's Office due to a filing error (see Docket entry dated November 30, 2022). Plaintiff did not refile the motion papers, however, until after briefing was completed. (Docket ## 50-52).
I. BACKGROUND
On June 15, 2018, plaintiffs gave DOE notice that they intended to enroll A.R. at a specialized non-public school. See Ten Day Notice, annexed as Ex. D to Mem. (Docket # 49).After failed settlement discussions, see Mem. at 4, on June 29, 2018, plaintiffs filed a request for an impartial hearing with DOE pursuant to the procedures outlined in the IDEA, alleging that A.R. was not receiving a FAPE for the 2018-2019 school year and that plaintiffs were entitled to public funding for the placement of A.R. at the specialized school. See Demand for Due Process, annexed as Ex. G to Mem. (Docket # 49). Plaintiffs alleged that A.R. had been diagnosed with Autism Spectrum Disorder with “deficits in gross/fine motor skills (motor dyspraxia), speech-language, and sensory modulation,” and required an “individualized educational program with full-time one-to-one [applied behavioral analysis] instruction that can provide ongoing interventions . . . and is geared to target his areas of weakness.” Id. at 3-4. On January 23, 2020, plaintiffs filed a second request for an impartial hearing, alleging substantially the same need. See Demand for Due Process, annexed as Ex. C to Mem. (Docket # 49). DOE conceded that it had failed to provide a FAPE to A.R., but contested the relief that plaintiffs sought. See Findings of Fact and Decision, annexed as Ex. B to Mem. (Docket # 49) (“FOFD”), at 6-7. The matter was heard by an Impartial Hearing Officer (“IHO”), who held eleven days of hearings. Id. at 1-4. At those hearings, plaintiffs presented nine witnesses and introduced thirty-six exhibits, including a 23-page closing brief. See id. at 7-21; 36-37. DOE presented no witnesses, but submitted eighteen exhibits, including a closing brief. Id. at 37. On January 20, 2021, the IHO ruled in favor of plaintiffs in part, and ordered that DOE reimburse plaintiffs for A.R.'s 2018-2019 school placement, occupational therapy, speech therapy and assisted communication training, speech and language therapy sessions, and paraprofessional assistance, and provide transportation to and from the specialized school. Id. at 34.
Exhibits A-D, G-I, and M have been filed in redacted form at Docket # 51-1, and appear in sealed, unredacted form at Docket # 49.
On March 3, 2022, plaintiffs filed this case in the Southern District of New York. See Complaint, filed Mar. 3, 2022 (Docket # 1) (“Compl.”). Plaintiffs' complaint initially sought enforcement of the IHO's reimbursement order in addition to fees, see id., but plaintiffs acknowledge that they have now received all reimbursement due, see DeVinney Let. Thus, the sole issue remaining is that of attorney's fees. On November 3, 2022, DOE made an offer of settlement in the amount of $40,750.00. Lindeman Decl. ¶ 34. On November 14, 2022, plaintiffs filed this motion for summary judgment on the issue of attorney's fees, costs, and expenses under the IDEA. See Mem.
Although plaintiffs provide information regarding the 2019-2020 school year, see Mem. at 5-6, “A.R. seeks attorneys' fees only for the 2018-2019 case because the DOE and Spencer Walsh Law settled the claim for attorneys' fees for the 2019-2020 case.” Reply at 9 n.7. Likewise, although the plaintiffs' motion papers seek reimbursement for the 2019-2020 school year, see Mem. at 2, plaintiffs acknowledge that claim was satisfied prior to filing, see DeVinney Let. at *2 (“Defendant paid [p]laintiffs' tuition costs for the 2018-2019 school year on September 27, 2022, and paid [p]laintiffs' tuition costs for the 2019-2020 school year on April 25, 2022.”).
II. DISCUSSION
The IDEA grants a court discretion to “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)(i)(I). A “prevailing party” is one who succeeds “on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” G.M. ex rel. R.F. v. New Britain Bd. of Educ., 173 F.3d 77, 81 (2d Cir. 1999) (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989)). Thus, “[i]f the guardian of a child with a disability successfully enforces his or her rights under the IDEA in an administrative action, the statute authorizes courts to award reasonable attorney fees to the guardian.” Id. at 80. DOE does not contest that the plaintiff is a prevailing party entitled to an award of attorney's fees and costs. See Opp. at 1.
The Second Circuit has held that “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). This calculation yields a “presumptively reasonable fee,” which is also referred to as the “lodestar.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citations and internal quotation marks omitted). “[T]he lodestar figure includes most, if not all, of the relevant factors constituting a reasonable attorney's fee.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010) (internal quotation marks omitted) (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 566 (1986)).
A. Reasonable Hourly Rates
1. Law Governing Rates
To determine an appropriate hourly rate in cases involving statutory attorney's fees, Arbor Hill directs that a court engage in the following process:
[T]he district court, in exercising its considerable discretion, [is] to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire
to obtain the reputational benefits that might accrue from being associated with the case.522 F.3d at 190 (emphasis in original). The “Johnson factors” are those laid out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). These 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.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19).
Arbor Hill identified the following factors to be considered in determining what a reasonable, paying client would be willing to pay:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Id. at 184.
Importantly, Arbor Hill held that a court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” Id. at 184 (emphasis added). In other words, whether the attorneys command the rates they seek in the marketplace is not dispositive of the rate that they are to be awarded. Rather, “Arbor Hill demands that we determine the cheapest hourly rate an effective attorney would have charged.” Knox v. John Varvatos Enterprises Inc., 544 F.Supp.3d 384, 387 (S.D.N.Y. 2021).
Here, plaintiffs seek fees for work performed on A.R.'s behalf by five attorneys and five paralegals from Spencer Walsh Law (“SWL”) in A.R.'s 2018-2019 case and by one attorney from Briglia Hundley (“BH”) in the instant federal case. See Mem. at 7-8, 13-18. For Tracey Spencer Walsh, SWL seeks a rate of $595 per hour for work performed before January 1, 2021, and a rate of $695 for work performed after that date. Id. at 13. DOE counters that $367.50 is an appropriate rate. See Opp. at 2. For Hermann Walz, SWL seeks $575 per hour, Mem. at 15; for Lauren Druyan, $495 per hour, id. at 16; for Tracey Discepolo, $400 per hour, id. at 17; and for Anna Belle Hoots, $300 per hour, id. DOE contends that Walz should be compensated at $350 per hour; that Druyan and Discepolo should be compensated at $225 per hour; and that Hoots should be compensated at $100 per hour. Opp. at 2. SWL seeks rates between $125 and $200 per hour for paralegals Wendy Ahlstrand, Ashley Camarena, Caitriona Carey, Orla Mannion, and Sonali Sanyal. Mem. at 7-8. DOE requests a rate of $100 per hour for each paralegal. Opp. at 2. BH requests $400 per hour for William DeVinney. Mem. at 8. DOE contends that DeVinney should be awarded $200 per hour for his work in the instant federal court action. Opp. at 3.
2. Analysis
We first examine the experience of the personnel for whom fees are sought. Walsh has been practicing law for nearly 30 years and has been practicing special education law for 15 years. See Walsh Resume, annexed as Ex. N to Mem. (Docket # 51-1). Druyan has been practicing law for roughly 15 years, and special education law for 11. See Druyan Resume, annexed as Ex. P to Mem. (Docket # 51-1). Walz has been practicing law for over 30 years, and special education law for less than four. See Walz Resume, annexed as Ex. S to Mem. (Docket # 51-1). Discepolo has been practicing law for 23 years and has practiced special education law for six years, with an additional four years of pro bono experience in special education law. See Discepolo Resume, annexed as Ex. T to Mem. (Docket # 51-1). Hoots has been practicing law for less than three years, the entirety of which has been in special education law. See Hoots Resume, annexed as Ex. U to Mem. (Docket # 51-1). DeVinney has been practicing law for roughly 25 years and has been practicing special education law for less than three. See DeVinney Resume, annexed as Ex. W to Mem. (Docket # 51-1).
As for paralegals, Sanyal has a bachelor's degree and has been working as a special education paralegal for five years. See Paralegal Resumes, annexed as Ex. V to Mem. (Docket # 51-1), at *89. Ahlstrand has a bachelor's degree and has been a special education paralegal for five years. Id. at *90-91. Mannion has a bachelor's degree and roughly two years of experience as a special education paralegal, id. at *92; Carey has a bachelor's degree and roughly two years of experience as a paralegal, with one year in special education, id. at *93; and Camarena has a bachelor's degree and worked as a special education paralegal for roughly two years, id. at *95.
Although Mannion, Carey, and Camarena have submitted resumes indicating that their employment with SWL runs to the present, see Paralegal Resumes at *92-93, 95, it appears from filings in another case that all three paralegals left the firm at some point before the filing of this motion, see Mannion Resume in J.A. v. New York City Dep't of Educ., (Docket # 28-20 in 22 Civ. 9454) (August 2019 end date); Carey Resume in J.A., (Docket # 28-21 in 22 Civ. 9454) (July 2020 end date); Camarena Resume in J.A., (Docket # 28-23 in 22 Civ. 9454) (October 2019 end date).
With regard to the work performed at the administrative level, there were eleven hearing dates and testimony from nine witnesses. See FOFD at 7-21; 36-37. It appears that these hearings totaled seventeen hours. See Invoice, annexed as Ex. J to Mem. (Docket # 51-1) (“Admin. Billing Record”), at 22-24, 26-27, 29, 31 (16.85 total hours billed for hearings). Plaintiffs argue that the questions of fact “required [SWL] to identify and explain the complex effects of A.R.'s autism” including by “prepar[ing] an expert to testify at the hearing.” Mem. At 12-13. They do not contend that the administrative action involved novel questions of law, beyond those presented by IDEA cases in general. Id. at 12.
Plaintiffs argue that the hourly rates they request are reasonable in light of market conditions. See id. at 13, 15. First, plaintiffs contend that “[r]elative to other civil cases, IDEA claims are not desirable to counsel,” and argue that “if courts do not award comparable rates [to other civil litigation] . . . parents will not be able to obtain competent counsel.” Id. at 13. Plaintiffs provide only Walsh's declaration as evidence that IDEA claims are “not desirable to counsel,” though the basis for Walsh's statement on this point is not given. See id.; Walsh Decl. ¶ 6. If Walsh means to indicate only that there is a small field of practitioners handling IDEA cases, this fact alone does not reflect that there are insufficient attorneys to meet demand.
Plaintiffs argue that “the billable rates in the Southern District have risen significantly in the last two years,” and thus that the prevailing rate in the market has increased relative to past IDEA cases. Mem. at 15. As to the alleged increases, plaintiffs provide only evidence pertaining to the rates charged to paying clients by so-called “Big Law” firms. See id. As to IDEA fees, Walsh avers that SWL's requested rates are “competitive” with other Southern District IDEA firms. Walsh Decl. ¶ 5. As we have noted in the past, “there is little evidence to support the notion that there is a market among paying clients for engaging the IDEA litigation services provided by plaintiff's lawyers.” O.R. v. New York City Dept. of Educ., 340 F.Supp.3d 357, 364 (S.D.N.Y. 2018). Instead, it appears that such work is compensated almost exclusively through attorney fee applications. Because the Arbor Hill standard contemplates what an actual paying client would be willing to spend for legal services, see 522 F.3d at 184, hypothetical fees are of little use without evidence that a meaningful portion of the market is actually willing to pay those rates.
Although we have considered each of the Arbor Hill and Johnson factors to the extent there is information in the record, we will not make findings as to each factor. See Lochren v. Cnty. of Suffolk, 344 Fed.Appx. 706, 709 (2d Cir. 2009) (“Arbor Hill did not hold that district courts must recite and make separate findings as to all twelve Johnson factors.”). We first note there is no evidence that the administrative action involved novel questions of law. The questions of fact involved only relief, and DOE conceded that it had failed to provide A.R. with a FAPE for the 2018-2019 school year. However, the case did require plaintiffs to present testimony from several witnesses, including expert witnesses, and DOE acknowledges that the proceedings were at least “moderately contested.” Opp. at 8.
In the end, virtually none of the evidence presented by plaintiff is informative as to the “least amount necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 184. The Court, however, is familiar from experience with hourly rates in a wide variety of practice areas, arising largely from the fact that attorneys often reveal hourly rates actually paid by clients during the many dozens of settlement conferences that the Court conducts each year. From this experience, the Court is aware that even within a given practice area, there is frequently a wide range of rates charged by attorneys and that attorneys at the lower end advocate with effectiveness before the Court.
We also have guidance from the rates awarded by courts to other IDEA attorneys based on experience. Courts in this district have observed that “[t]he prevailing rate for experienced[] special-education attorneys in the New York area circa 2018 [was] between $350 and $475 per hour,” R.G. v. New York City Dep't of Educ., 2019 WL 4735050, at *2 (S.D.N.Y. Sept. 26, 2019), and one court has held that the passage of time warrants an increase of five percent, see M.R. v. New York City Dep't of Educ., 2022 WL 4396835, at *1 (S.D.N.Y. Sept. 23, 2022) (“M.R. I”), on reconsideration 2022 WL 16575767 (Oct. 31, 2022) (“M.R. II”) (citing R.G., 2019 WL 4735050, at *2). This yields a senior attorney rate of between $367.50 and $498.75 per hour. The court in R.G. observed that the appropriate rate “[f]or associates with three or fewer years of experience in such litigation” was between $150 and $275 per hour. R.G., 2019 WL 4735050, at *3. Adjusted, this yields rates between $157.50 and $288.75 per hour for such associates. Finally, for an attorney with eleven years' experience, seven of which was in special education law, the court in M.R. I found that a rate of $210 was appropriate. 2022 WL 4396835, at *2. We find these rates informative as to the appropriate compensation for the attorneys in this case.
These rates are close to what the SWL firm has been awarded in other published cases. Thus, in A.B. v. New York City Dep't of Educ., the court awarded Walsh $400 per hour, Druyan $280, Discepolo $200, Hoots $175 (and $150 for work performed before her admission to the bar), and Walz $300. 2021 WL 951928, at *3-6 (S.D.N.Y. Mar. 13, 2021).
We are also aware that a court recently awarded Walsh $425 per hour, Druyan $300, Walz $350, and Hoots $150 for time after she was admitted to the bar. C.A. v. New York City Dep't of Educ., 2022 WL 673762, at *5-6 (E.D.N.Y. Feb. 16, 2022).
Walsh has 15 years' experience in special education law and nearly three decades experience as an attorney, and she performed roughly one third of the attorney work on the administrative action. Accordingly, we find a rate of $375 per hour is appropriate for Walsh. This number falls well within the range identified by M.R. I for senior IDEA attorneys. See 2022 WL 4396835, at *1. It is also consistent with the rate awarded by Judge Caproni to an attorney with similar experience. See M.R. II, 2022 WL 16575767, at *2 (awarding a $367.50 hourly rate to attorney having “more than 20 years of years of experience litigating special education due process hearings,” as stated in 2022 WL 6242896, at *4 (S.D.N.Y. June 15, 2022)). Although Walsh's billing reflects two rates over time, we assign only one rate because “in IDEA cases, as in other fee-shifting contexts, the Court should take into account delay by using current rates in calculating a reasonable attorneys' fee.” M.H. v. New York City Dep't of Educ., 2021 WL 4804031, at *31 (S.D.N.Y. Oct. 31, 2021) (emphasis added) (punctuation omitted).
Discepolo has more than two decades of legal experience but has practiced special education law only for six years. Discepolo did not play a heavy role in this case, billing less than five non-travel hours. See Mem. at 7. Accordingly, $210 per hour is an appropriate rate, as was awarded to an attorney with similar experience and involvement in M.R. I. See 2022 WL 4396835, at *2.
Druyan has 15 years of experience, 11 of them in special education law, and billed around 12% of the attorney hours in the administrative action. See Mem. at 7. Accordingly, a rate of $290 per hour is appropriate for Druyan. This also reflects the rate she received in A.B., adjusted to reflect the passage of time. See 2021 WL 951928, at *5-6.
Hoots has less than three years of experience as an attorney, all of which is in special education law, and did very little work on this case. See Mem. at 7 (1.3 total hours). Accordingly, we believe a rate of $160 per hour is appropriate, which reflects the appropriate rate for an IDEA attorney with less than three years of experience. See M.R. I, 2022 WL 4396835, at *1; R.G., 4735050, at *3.
Walz has been practicing law for over 30 years, but has practiced special education law for less than four, and billed nearly half of the attorney hours in the administrative action. Mem. at 7. Given his experience and the extent of his involvement in this case, a rate of $367.50 is appropriate for Walz. See I.B. v. New York City Dep't of Educ., 336 F.3d 79, 81 (2d Cir. 2003) (noting that although counsel's “experience with this particular type of litigation was limited,” “most important legal skills are transferrable”); accord M.R. I, 2022 WL 4396835, at *2 (“an attorney's overall experience litigating cases is a significant factor in calculating an appropriate hourly rate”). This reflects the low end of the appropriate rate for an experienced IDEA litigator, thus accounting both for Walz's extensive general litigation experience and his far less significant IDEA experience.
DeVinney has been practicing law for roughly 25 years, special education law for less than three, and billed the entirety of the hours in the federal component of this case, which related exclusively to attorney's fees, not to the substance of law under the IDEA. See Mem. at 8. DeVinney's overall experience and the extent of his work on this case, combined with the prevailing market rates, command a rate somewhat lower than the rate awarded to Walz. Additionally, the work performed by DeVinney was deficient. To start, plaintiffs' papers for this motion were filed improperly and, notwithstanding a rejection from the ECF system, were not refiled for nearly four months, at which time they were again filed deficiently. See Docket Entry, dated Nov. 30, 2022; Docket Entry, dated Mar. 24, 2023. Plaintiffs' initial filing contained the unredacted name and address of the minor plaintiff, which were removed only as a result of the Court's sua sponte order. See Order, dated Mar. 16, 2023 (Docket # 44). Finally, plaintiffs' reply brief failed to clearly address whether plaintiffs still sought the full scope of relief relating to enforcement of the IHO's order, despite DOE's argument that the order had been fully satisfied, a lacuna that required the Court to order additional briefing. See id.; see Reply at 9 (“regardless of whether the DOE owes $8,420, this action was necessary”). More significantly, the briefs themselves evince a quality of work performed by DeVinney that does not reflect the level of proficiency that should be expected of an attorney with DeVinney's experience. Accordingly, DeVinney should be awarded a rate of $200 per hour, commensurate with a junior associate's rate. See S.F. v. New York City Dep't of Educ., 2023 WL 4531187, at *11 (S.D.N.Y. July 13, 2023) (awarding DeVinney $200 per hour for “substandard” work the quality of which “did not exceed that of a junior associate”).
As to the paralegals, a rate of $100 per hour for a paralegal is appropriate except in instances where the paralegal has “an associate's degree and substantial experience in the field,” M.R. I, 2022 WL 4396835, at *2 (emphasis in original), in which case a $125 per hour rate is appropriate. Although each paralegal has a bachelor's degree, we find that none has the “substantial experience” required to justify a fee increase, given that the longest-tenured paralegals, Ahlstrand and Sanyal, have five six years' experience in the field. As such, a rate of $100 per hour for each paralegal is appropriate.
Finally, plaintiffs request 3.84 hours of travel time between Walsh and Discepolo for attendance at the administrative hearings. Mem. at 7. DOE makes no argument regarding whether or not this time should be awarded. “Courts generally approve fees, at 50% of an attorney['s] usual rate, for reasonable travel conducted in service of ongoing litigation.” C.D. v. Minisink Valley Sch. Dist., 2018 WL 3769972, at *10 (S.D.N.Y. Aug. 9, 2018) (citing K.F. v. New York City Dep't of Educ., 2011 WL 3586142, at *6 (S.D.N.Y. Aug. 10, 2011)). Accordingly, the travel time should be granted at half of the rate awarded to Walsh and Discepolo.
B. Reasonable Number of Hours Expended
In evaluating the reasonableness of hours expended, courts consider “not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). A claimant is only to be compensated for “hours reasonably expended on the litigation,” and not for “hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 433-34.
“Because attorney's fees are dependent on the unique facts of each case, the resolution of this issue is committed to the discretion of the district court.” Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (citing Hensley, 461 U.S. at 437). In exercising this discretion, a court looks to “its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Id. (citation and internal quotation marks omitted).
The Supreme Court has cautioned that “trial courts need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011); see also Buckhannon Bd. & Care Home v. W.Va. Dep't of Health and Human Res., 532 U.S. 598, 609 (2001) (fee requests “should not result in a second major litigation”) (quoting Hensley, 461 U.S. at 437). As Fox stated, “[t]he essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” 563 U.S. at 838.
As a result, a district court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). Rather, a court may use a percentage reduction “as a practical means of trimming fat from a fee application.” McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (internal quotation marks and citation omitted); accord Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998); Lewis v. Roosevelt Island Operating Corp., 2018 WL 4666070, at *7 (S.D.N.Y. Sept. 28, 2018).
We first address the hours spent at the administrative level and then the hours for the federal proceeding.
1. Administrative Action Hours
F.R. requests the following attorney hours for the administrative action:
F.R. asserts that SWL “billed 146 hours” for this proceeding, “not the approximately 190 hours that the DOE claims.” Reply at 5 (citing Opp. at 16). F.R.'s claim is not consistent with the billing chart submitted by plaintiffs, which reflects a request of 189.7 hours. See Mem. at 7.
| Time Keeper | Hours Claimed |
| Discepolo | 4.56 |
| Discepolo (Travel) | 1 |
| Druyan | 11.76 |
| Hoots | 1.3 |
| Walsh | 27.46 |
| Walsh (Travel) | 2.84 |
| Walz | 45.69 |
| Ahlstrand | 32.63 |
| Camarena | 1.47 |
| Carey | 2.45 |
| Mannion | 9.88 |
| Sanyal | 48.66 |
| TOTAL | 189.7 |
DOE asserts that “SWL overbill[ed] at every stage of the administrative process” and requests a 30% across-the-board reduction in hours awarded. Opp. at 16, 20. Among DOE's complaints are that SWL billed excessively for intra-office and client meetings, communicated too frequently with clients, billed time spent on relief that was not ultimately awarded, “overbill[ed] egregiously for simple tasks,” and billed excessively for “tasks that take no more than a few moments.” Id. at 16-19.
We first consider DOE's argument regarding intra-office meetings. DOE argues that “SWL bills excessively for intra-office communication,” and asserts that 33 hours are attributable to these communications. Opp. at 17. DOE characterizes these entries as follows: “Paralegals receive correspondence . . . summarize them, then send the summary to an attorney, who reviews and dictates a response, which is then drafted and sent by a paralegal.” Opp. at 17; see Lindeman Decl. ¶¶ 15-17. Case law holds that where counsel takes a “team approach” to litigation, the court may determine whether it “was always necessary, or . . . led to the most efficient use of time.” See Sabatini v. Coming-Painted Post Area Sch. Dist., 190 F.Supp.2d 509, 521 (S.D.N.Y. 2001). Courts have found that “duplication of effort warrants a modest reduction in the hours claimed.” Id. (collecting cases); accord Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 188 F.Supp.3d 333, 342 (S.D.N.Y. 2016); A.D. v. New York City Dep't of Educ., 2019 WL 1292432, at *9 (S.D.N.Y. Mar. 21, 2019).
Here, the billing records reflect multiple intra-office meetings that created duplicative work. For example, on September 25, 2018, Mannion and Sanyal both bill 0.17 hours for a “[c]onference with legal assistant,” after which Walsh and Mannion bill 0.25 hours for an additional “conference” on the same day. Admin. Billing Record at 4-5. On October 2, 2018, Walsh and Discepolo bill 0.22 of attorney time each for “[m]eeting with legal assistant and [counsel] regarding case status report.” Id. at 5. Mannion also bills 0.50 hours for that same meeting combined with the preparation of the status report. Id. There are other instances in which both a paralegal and an attorney bill for the same time. See id. at 20, 23-24, 28 (12/2/19 entries for Sanyal and Walsh; 12/2/19 entries for Sanyal and Druyan; 7/7/20 entries for Sanyal, Walsh, and Ahlstrand; 7/15/20 entries for Sanyal, Walsh, and Ahlstrand; 10/1/20 entries for Ahlstrand and Walz; 10/6/20 entries for Ahlstrand and Walz). Plaintiffs make no argument as to why any of these meetings was “the most efficient” method of prosecuting the case and point to no added benefit created by the duplicative work. Although this phenomenon does not appear in every instance where SWL held an “intra-office case conference,” see Id. at 29 (10/8/20 Ahlstrand entry), it is common and warrants a reduction in hours awarded.
DOE also argues that SWL “spen[t] an excessive amount of time communicating with their client,” Opp. at 17, citing as an example five communications over a one-month period, which total less than an hour of billed time, see Lindeman Decl. ¶¶ 7-8 (0.97 hours in challenged time entries). DOE cites to A.D., Opp. at 17, in which the court reduced 8.1 hours of client meetings to 4.0 hours “[i]n light of [various] redundancies and excesses, but in recognition of the fact that some collaboration with [p]laintiff was necessary at key moments . . . especially during the drafting of the [due process complaint].” 2019 WL 1292432, at *7. Upon review of the billing records, it appears that the majority of the client communications in this case consisted of brief entries for monthly status updates and more extensive entries surrounding important dates or deadlines. See Admin Billing Record. We also note that, although the entries here span two and a half years, the client communications in this case total around nine hours. See id. By contrast, in A.D., counsel billed 8.1 hours for client communications over about six months. See 2019 WL 1292432, at *7. All in all, the client communications here do not appear to have unreasonably exceeded what was necessary to prosecute this case effectively on plaintiffs' behalf.
DOE argues that “time spent on [plaintiffs'] hearing preparation should be reduced to account for the relief Plaintiff ultimately did not receive,” including “time that explicitly went to [plaintiffs'] attempt to obtain reimbursement for [a behavioral therapy] course [p]laintiff took.” Mem. at 19. It is true that “a reduction in the total lodestar amount may be appropriate where ‘a plaintiff is deemed prevailing even though he succeeded on only some of his claims for relief.'” B.W. ex rel. K.S. v. New York City Dep't of Educ., 716 F.Supp.2d 336, 353 (S.D.N.Y. 2010) (quoting Hensley, 461 U.S. at 434). This principle only applies, however, when “the claims on which plaintiff failed ‘were unrelated to the claims on which he succeeded.'” Id. (quoting Hensley, 461 U.S. at 434). Thus, where “[p]laintiffs' successful and unsuccessful claims [are] inextricably intertwined and involve[] common legal and factual questions,” the hours sought should not be reduced. See E.S. v. Katonah-Lewisboro Sch. Dist., 796 F.Supp.2d 421, 428 (S.D.N.Y. 2011). DOE cites no precedent for its suggestion that the fees here should be reduced merely for a single unsuccessful argument, and makes no argument on the facts as to why the relief granted and the relief sought were unrelated. The two claims in this case on which the IHO did not grant relief related to treatment for A.R.'s disability, see FOFD at 28-31, and involved legal questions regarding the scope of A.R.'s entitlement to a FAPE, the very questions assessed for A.R.'s other claims. Additionally, the relief granted here was largely, albeit not completely, in plaintiffs' favor, see id. at 24-34 (success on six of eight claims), which weighs in favor of awarding full compensation to counsel. See K.L. v. Warwick Valley Cent. Sch. Dist., 2013 WL 4766339, at *11 (S.D.N.Y. Sept. 5, 2013) (“One of the most critical factors courts take into account in awarding fees is the ‘degree of success obtained' by counsel,” including “the ‘quantity and quality of relief obtained, as compared to what the plaintiff sought to achieve' in bringing the action.”) (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992); Hensley, 461 U.S. at 463; Barfield v. New York City Health and Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008)). Accordingly, plaintiffs' failure to prevail on certain claims does not warrant a reduction in the fee award.
DOE argues that SWL “overbill[s] egregiously for simple tasks associated with the administrative hearing.” Opp. at 18. DOE cites, among other entries, 15.67 hours billed by Walz for the 23-page closing brief, along with 2.25 hours billed between Hoots and Walsh for editing the brief and additional time charged for reviewing transcripts and administrative tasks relating to the same. Opp. at 18-19. DOE also points to roughly 1.3 hours spent by three different timekeepers regarding the IHO's FOFD after it was issued, including 0.59 attorney hours for “review.” Id. at 19; Lindeman Decl. ¶ 24. Finally, DOE argues that plaintiffs should not be allowed to collect for “a meeting . . . regarding the 2018-2019 school year” that “took place more than 6 months before that [school year] would begin.” Id. at 16-17.
In response, plaintiffs assert that “[t]he time [SWL] spent on the administrative hearing was reasonable,” because “[e]ven the simplest hearing requires significant preparation time,” and the hearing here was not uncontested. Reply at 5. As to 2018-19 school year issue, plaintiffs respond that, because they were “forced to file a due process demand for the 2015-2016, 20162017 and 2017-2018 school years,” plaintiffs “could almost guarantee that the DOE would refuse to provide a FAPE for 2018-2019 six months before doing so.” Id. at 6.
In general, the billing records provided do not reflect a pattern of excess billing. We do not believe, for instance, that less than an hour of attorney time is excessive to review the FOFD, which is 37 pages long, see FOFD, and sets out critical details regarding the relief granted to plaintiffs. However, we agree that a total of 15.67 hours is excessive for the drafting of the 23-page post-hearing brief. See C.B. v. New York City Dep't of Educ., 2022 WL 3577837, at *8 (S.D.N.Y. Aug. 19, 2022) (finding that 12 hours was “somewhat excessive” to draft a 30-page closing brief). The brief here was drafted by Walz, an experienced attorney who should have been able to accomplish the work in less time.
As to the pre-action meeting, while we agree that, given plaintiffs' history with the DOE, it was not unreasonable for SWL and plaintiffs to believe that they might eventually be forced to submit a FAPE application for the 2018-2019 school year, we must consider whether these hours were “reasonably expended on the litigation” and not “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 433-34. Plaintiffs bill 1.68 hours of time attributable to this meeting and a subsequent “correspondence letter.” See Admin. Billing Record at 1. Six months prior to A.R.'s next school year, it would have been impossible for plaintiffs to accurately assess any changes in A.R.'s condition that might affect A.R.'s FAPE for the following year. Plaintiffs could not have provided all necessary information specific to the 2018-2019 school year at that point, and thus the meeting would not have allowed SWL to begin preparing documents relevant to the 2018-2019 case. Thus, we believe that this meeting was unnecessary to plaintiffs' case.
DOE also alleges that “SWL has not billed in easily distinguishable increments” which means that “[a]s determining which time is explicitly overbilled is impossible, the Court should instead implement a larger percentage cut to SWL's hours.” Opp. at 18. Although, as we have stated, some of these tasks appear to have been overbilled, the argument regarding SWL's billing increments is not meritorious. In cases that have addressed minimal increment billing, including Canaveral v. Midtown Diner NYC, Inc., the case cited by DOE, courts have expressed concern that traditional six-minute increments can be used to hide the true length of tasks that may require only a minute or two of an attorney's time. 2019 WL 4195194, at *9 (S.D.N.Y. Sept. 5, 2019); see also C.D. v. Minisink Valley Cent. Sch. Dist., 2018 WL 3769972, at *8 (S.D.N.Y. Aug. 9, 2018) (“[W]hen an attorney on a single day bills multiple 0.10 hour entries for [discrete] tasks, where the tasks individually appear likely to have occupied less than 0.10 hours and in total appea[r] likely to have occupied less than the sum total of the 0.10 hour increments, such a practice can improperly inflate the number of hours billed beyond what is appropriate.”). Here, the billing increment is taken to the hundredth decimal place, meaning there is precision to within 36 seconds and thus the concern about billing increments does not warrant a reduction in hours awarded.
Although it is not addressed specifically by DOE, we also note multiple instances of “block billing” by Ahlstrand. “Block billing” occurs where “task descriptions are aggregated together into a single block of time so that it is impossible to tell what amount of time is allocated to each task.” O.R., 340 F.Supp.3d at 370. “Because block billing interferes with the ability of a court to evaluate the reasonableness of attorney hours, its use often results in a reduction of fees.” Id. (citing Erickson Prods., Inc. v. Only Websites, Inc., 2016 WL 1337277, at *4-5 (S.D.N.Y. Mar. 31, 2016)). While these instances do not appear to predominate, Ahlstrand has numerous billing entries that “block bill” a series of tasks. See Admin Billing Record at 26, 28-29 (Ahlstrand entries for 9/9/20, 9/15/20, 9/16/20, 10/1/20, 10/6/20, 10/12/20, 10/14/20). In one of these entries, Ahlstrand bills 0.92 hours in one entry for the receipt of five emails, sending two emails, updating case documents, and an intra-office case conference. See id. at 26 (Ahlstrand entry for 9/16/20). In another, Ahlstrand bills 3.25 hours to send an email, review case documents, update a disclosure index, and send exhibits to DOE and the IHO. See id. at 28 (Ahlstrand entry for 10/1/20). The inclusion of so many tasks within one large billing entry makes it impossible for the Court to determine whether these entries are excessive, and warrants a reduction in hours awarded.
We find that the issues identified above, including duplicative or unnecessary meetings, excessive time billed for the creation of the closing brief, and block billing warrant a 10% reduction in the overall hours awarded for the administrative action.
As such, the total award for the administrative action should be as follows:
| Time Keeper | Hours Claimed | Hours Awarded | Hourly Rate | Total |
| Discepolo | 4.56 | 4.104 | $ 210.00 | $ 861.84 |
| Discepolo (Travel) | 1 | 0.9 | $ 105.00 | $ 94.50 |
| Druyan | 11.76 | 10.584 | $ 290.00 | $ 3,069.36 |
| Hoots | 1.3 | 1.17 | $ 160.00 | $ 187.20 |
| Walsh | 27.46 | 24.714 | $ 375.00 | $ 9,267.75 |
| Walsh (Travel) | 2.84 | 2.556 | $ 187.50 | $ 479.25 |
| Walz | 45.69 | 41.121 | $ 367.50 | $ 15,111.97 |
| Ahlstrand | 32.63 | 29.367 | $ 100.00 | $ 2,936.70 |
| Camarena | 1.47 | 1.323 | $ 100.00 | $ 132.30 |
| Carey | 2.45 | 2.205 | $ 100.00 | $ 220.50 |
| Mannion | 9.88 | 8.892 | $ 100.00 | $ 889.20 |
| Sanyal | 48.66 | 43.794 | $ 100.00 | $ 4,379.40 |
| TOTAL | 189.7 | 170.73 | n/a | $ 37,629.97 |
2. Federal Action Hours
F.R. requests 38.70 attorney hours for the federal action, 14.90 hours of which was billed before the November 3, 2022, offer of settlement. Mem. at 8; see Invoice, annexed as Ex. K to Mem. (Docket # 51-1) (“Federal Billing Record”), at 1-2. DOE argues that the hours attributable to plaintiffs' “request for payment enforcement . . . should be entirely denied,” because payment was fully rendered before DeVinney began working on the summary judgment motion. Opp. at 20. Plaintiffs acknowledge that they “no longer . . . seek reimbursement because [DOE] has paid [p]laintiffs all funds due under the orders,” with payment for 2018-2019 completed on September 27, 2022, and payment for 2019-2020 completed on April 25, 2022. DeVinney Let. DOE requests that 3.3 hours be deducted for time spent solely on the enforcement request, and an additional 8.1 hours be reduced by 50% for time devoted to the summary judgment motion as a whole, on the ground that a substantial portion of these hours had to have related to the enforcement claims. Opp. at 20. DOE also argues that the time spent on drafting of the remainder of the instant motion is unreasonable, and requests that the Court either deny the award entirely or reduce the award by 80%. Id. at 21.
We begin with the time spent on claims for reimbursement. Plaintiffs filed their initial notice of motion on November 14, 2022, see Mot., nearly two months after payment had been rendered in full on September 27, 2022, for the last outstanding enforcement claim, see DeVinney Let. DeVinney bills no time for the instant motion prior to September 30, 2022. See Federal Billing Record at 2. Because the claim at issue had already been satisfied, any work done on that portion of the motion was entirely unnecessary, and no reasonable paying client would compensate an attorney for it. The 3.3 hours spent exclusively on these claims represent 22% of the award sought for work prior to the offer of settlement. We find that the award should be reduced accordingly.
On review of the remainder of the federal billing, the Court does not find the hours expended to be generally unreasonable. However, the Court finds that an additional reduction to the hours billed by DeVinney is warranted due to the nature and quality of the work. See F.N. v. New York City Dep't of Educ., 2022 WL 3544128, at *5 (S.D.N.Y. Aug. 18, 2022) (“In determining the reasonableness of the requested attorneys' fees, the Court considers the quality of the work done by the attorneys.”) (quoting Harris v. Fairweather, 2012 WL 3956801, at *8 (S.D.N.Y. Sept. 10, 2012), adopted, 2012 WL 5199250 (S.D.N.Y. Oct. 19, 2012)). As discussed above in Section II.A.2, there were several filing errors and the opposition failed to address an issue raised by the defendant, necessitating an order for supplemental briefing. Moreover, the papers were ultimately of minimal use in determining reasonable hourly rates and the reasonable number of hours expended on this case.
Additionally, Judge Engelmeyer has noted that DeVinney filed a nearly identical brief in another case. See S.F., 2023 WL 4531187, at *10 (“the memorandum of law that DeVinney submitted here is close to identical to that his firm submitted in F.R. v. New York City Department of Education, No. 22 Civ. 1776 (VEC) (GWG) (S.D.N.Y.) (Dkt. 27)”). A review of the briefs confirms that more than one third of the brief here contains identical language to the brief in S.F., compare Mem. with Brief in Support of Motion for Attorneys' Fees in S.F. v. New York City Dep't of Educ., (Docket # 35 in 21 Civ. 11147), and the billing records in that case reflect that DeVinney prepared his brief for S.F. simultaneously with the Memorandum filed in this case, compare Federal Billing Record with Invoice in S.F. v. New York City Dep't of Educ., (Docket # 62-1 at Ex. B in 21 Civ. 11147) (entries for 9/30/22, 10/26/22, 10/31/22, 11/2/22, and 11/4/22). Nothing prohibits a firm from using the same language in multiple briefs, but that process should result in savings of time - here, DeVinney bills more than 30 hours of attorney time relating to the brief. See Federal Billing Record at 2-3. Given that these efforts appear to have been split across cases, we think the amount of time spent on the brief was unreasonable.
Judge Engelmayer ordered a 20% reduction in the S.F. case, see 2023 WL 4531187, at *12, and we agree a similar reduction is appropriate here. Combined with the 22% reduction in hours for time spent on claims that had already been satisfied, this results in a 42% reduction to the award. As a result, the award for work performed in the federal action prior to defendants' offer of settlement should be:
| Time Keeper | Hours Claimed | Hours Awarded | Hourly Rate | Total |
| DeVinney | 14.9 | 8.642 | $200.00 | $1,728.40 |
| TOTAL | 14.9 | 8.642 | $200.00 | $1,728.40 |
3. Costs
For the administrative action, plaintiffs request no costs. See Mem. at 8. For the federal action, plaintiffs request $427.00 for the federal filing fee. Id. Although DOE does not dispute that plaintiffs are entitled to costs, DOE asserts that the federal filing fee is $402.00, not $427.00. Lindeman Decl. ¶ 32. This is correct. See Compl. (Docket entry reflecting $402.00 filing fee). Accordingly, plaintiffs should be awarded $402.00 in costs as follows:
| Cost | Requested | Awarded |
| Filing Fee | $ 427.00 | $ 402.00 |
| TOTAL | $ 427.00 | $ 402.00 |
4. Fee Cutoff
In IDEA cases, “[a]ttorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if . . . the court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D)(i)(III). Thus, “where the amount of fees and costs incurred through the offer of settlement date is less than the offered settlement amount, courts will not award fees for fees and costs incurred after that date.” T.A., 2022 WL 3577885, at *7 (collecting cases). Here, the amounts for the underlying actions ($37,629.97), fee application ($1,728.40), and costs ($402.00) totals $39,760.37. This is less than DOE's $40,750.00 offer of settlement. See Lindeman Decl. ¶ 34. As a result, the statute provides that no fees should be awarded for work after November 3, 2022.
Conclusion
For the foregoing reasons, plaintiff's motion (Docket # 51) should be granted and plaintiff should be awarded $39,760.37 in attorney's fees, expenses, and costs.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).