Opinion
22 Civ. 9454 (VEC) (GWG)
08-04-2023
J.A. AND N.D., INDIVIDUALLY AND ON BEHALF OF J.A., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs J.A. and N.D., individually and on behalf of their child, J.A., brought this action against defendant New York City Department of Education (“DOE”) in connection with an administrative proceeding brought to enforce J.A.'s right to a “free appropriate public education” (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Complaint, filed Nov. 7, 2022 (Docket # 5) (“Compl.”). Plaintiffs now move for attorney's fees and costs. For the reasons that follow, plaintiffs' request should be granted in the amount of $23,331.48.
Notice of Motion, filed Mar. 3, 2023 (Docket # 26) (“Mot.”); Memorandum of Law in Support, filed Mar. 3, 2023 (Docket # 27) (“Mem.”); Declaration of Tracey Spencer Walsh, filed Mar. 3, 2023 (Docket # 28) (“Walsh Decl.”); Opposition to Plaintiffs' Motion, filed Apr. 3, 2023 (Docket # 32) (“Opp.”); Reply Memorandum of Law, filed Apr. 28, 2023 (Docket # 37) (“Reply”); Sur Reply Declaration of Thomas Lindeman, filed May 8, 2023 (Docket # 50); Memorandum of Law in Response to Defendant's Sur-Reply Declaration, filed May 12, 2023 (Docket # 51) (“Sur-Reply Response”). Plaintiff's motion was originally filed on November 14, 2022 (Docket # 27), but contained unredacted information regarding the minor plaintiff, see Letter Motion, filed May 1, 2023 (Docket # 45) (“Walsh Let.”). Plaintiff later refiled the memorandum of law at Docket # 49 along with redacted versions of Exhibits A-C and F-I.
I. BACKGROUND
On June 14, 2019, plaintiffs filed a “ten-day notice” with the DOE pursuant to the procedures outlined in the IDEA, alleging that DOE had failed to convene an Individualized Education Program (“IEP”) meeting for their child for the 2019-2020 school year, and had failed to provide J.A. with an IEP or a school placement. See Ten Day Notice, annexed as Ex. A to Walsh Decl. (Docket # 28-1). On July 24, 2019, plaintiffs filed a request for a due process hearing with DOE, claiming that their child was not receiving a FAPE for the 2019-2020 school year, and they were thus entitled to reimbursement or funding for the placement of their child at a specialized non-public school. See Due Process Request, annexed as Ex. C to Walsh Decl. (Docket # 28-3).
On September 20, 2019, J.A. provided DOE with documents for use in settlement discussions. Mem. at 3; Opp. at 3. On September 23, 2019, DOE emailed J.A.'s counsel to offer, “[c]ontingent on Comptroller approval and in full satisfaction of all claims for the 20192020 [school year]: $68,000 for tuition at Cooke School . . . $4,000 for summer tuition at Cooke School . . . [and] $1,800 for attorney fees.” Email from Alexandra Jenik, annexed as Ex. D to Walsh Decl. (Docket # 28-4). On October 9, 2019, DOE sent J.A. a letter (the “Offer”) in which it “set[] forth the following as a Rule 68 Offer of Judgement [sic], pursuant to 34 C.F.R. [§] 300.517(c)(2)(i): [] Reimbursement to the parents in the amount of $76,862.50 for tuition at the Cooke School . . . for the 2019-2020 School Year . . . [and] $3,051.25 in attorney's fees.” Letter from Alexandra Jenik, annexed as Ex. F to Walsh Decl. (Docket # 28-6) (“Offer Let.”).
Plaintiffs did not accept the offer, and the matter proceeded to a hearing before an Impartial Hearing Officer (“IHO”). See Findings of Fact and Decision, annexed as Ex. G to Walsh Decl. (Docket # 28-7) (“FOFD”), at *5. The parties met before the IHO on three dates. Id. J.A. called four witnesses and submitted fourteen documents into evidence. FOFD at *7.
The DOE did not present witnesses or submit evidence, FOFD at *12, but cross-examined J.A.'s witnesses, Mem. at 3-4. On May 1, 2020, the IHO awarded J.A. the full relief requested. FOFD at *17.
On November 7, 2022, plaintiffs filed a complaint in the Southern District of New York seeking only attorney's fees and costs. Compl. On March 3, 2023, plaintiffs filed the instant motion seeking summary judgment on the issue of attorney's fees and costs under the IDEA. Mot.
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.
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. Mootness
DOE argues that its October 9, 2019 Offer rendered J.A.'s claim moot by offering full tuition, and thus there is no judiciable case or controversy at bar. Opp. at 5-6. The Supreme Court has held, however, that “an unaccepted offer of judgment cannot moot a case.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 162 (2016). Campbell-Ewald explained that “[w]hen a plaintiff rejects such an offer - however good the terms - her interest in the lawsuit remains just what it was before. And so too does the court's ability to grant her relief. An unaccepted settlement offer - like any unaccepted contract offer - is a legal nullity, with no operative effect. As every first-year law student learns, the recipient's rejection of an offer leaves the matter as if no offer had ever been made.” Id. (emphasis added) (citation omitted). DOE cites to nothing that suggests claims under the IDEA are not subject to this general rule, see Opp. at 5-6, and the Court is aware of no precedent that so holds. Plaintiffs' decision not to accept the offer left them with a live claim under the IDEA. Contrary to DOE's argument, the IHO award granted effectual relief in this case by awarding tuition and creating an entitlement to what is known as “pendency” as a result. Thus, DOE's offer of settlement did not moot J.A.'s claim in this court.
Pendency “entitles a disabled child to remain in his then-current educational placement while [] administrative and judicial proceedings . . . are pending” and thus “seeks to maintain the educational status quo while the parties' dispute is being resolved.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014) (punctuation omitted).
B. 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).
2. Analysis
We first examine the experience of the personnel for whom fees are sought, all of whom are members of the firm Spencer Walsh Law (“SWL”). Tracey Spencer 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. M to Walsh Decl. (Docket # 28-13). Lauren Druyan has been practicing law for roughly 15 years, and special education law for 11. See Druyan Resume, annexed as Ex. L to Walsh Decl. (Docket # 28-12). Hermann Walz has been practicing law for over 30 years, and special education law for less than four. See Walz Resume, annexed as Ex. P to Walsh Decl. (Docket # 28-16). Anna Belle 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. Q to Walsh Decl. (Docket # 28-17). Sarah Greisman has been practicing law for less than a year, all of which has been in special education law. See Greisman Resume, annexed as Ex. R to Walsh Decl. (Docket # 28-18). Although SWL's billing reflects billing by an individual named Susan Fingerle, see Invoice, annexed as Ex. 1 to Sur-Reply Response (Docket # 51-1) (“Federal Billing Record”), at 7, SWL provides no information about this individual's role or qualifications.
As for paralegals, Sonali Sanyal has a bachelor's degree and has been working as a special education paralegal for five years. See Sanyal Resume, annexed as Ex. S to Walsh Decl. (Docket # 28-19). Wendy Ahlstrand has a bachelor's degree and has been a special education paralegal for five years, see Ahlstrand Resume, annexed as Ex. V to Walsh Decl. (Docket # 2822); Orla Mannion has a bachelor's degree and roughly two years of experience as a special education paralegal, see Mannion Resume, annexed as Ex. T to Walsh Decl. (Docket # 28-20); Caitriona Carey has a bachelor's degree and roughly two years of experience as a paralegal, with one year in special education, see Carey Resume, annexed as Ex. U to Walsh Decl. (Docket # 28-21); and Ashley Camarena has a bachelor's degree and worked as a special education paralegal for two years, see Camarena Resume, annexed as Ex. W to Walsh Decl. (Docket # 2823).
With regard to the work performed at the administrative level, there were three hearing dates and testimony from four witnesses. FOFD at *5, 7. The billing records submitted by J.A. indicate that these hearings took less than six hours in total. See Invoice, annexed as Ex. H to Walsh Decl. (Docket # 28-8) (“Admin. Billing Record”) (entries for Oct. 22, 2019; Dec. 12, 2019; and Jan. 31, 2020). Plaintiffs argue that questions of fact “required SWL to identify and explain the complex effects of J.A.'s unique needs,” including by preparing a speech pathologist as a witness. Mem. at 11. But they do not contend that the administrative action involved novel questions of law beyond those presented by IDEA cases in general. Id.
Plaintiffs argue that the hourly rates they request are reasonable in light of market conditions. See Mem. at 12-17; Reply at 9-11. 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.” Mem. at 11. 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 practitioner's handling IDEA cases, this fact does not reflect that there are insufficient attorneys to meet demand.
Plaintiffs argue “legal rates” in the Southern District have risen significantly in recent years, and thus that the prevailing rate in the market has increased relative to past IDEA cases. Reply at 10. 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. at 10-11. 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 presented no witnesses and no evidence. However, the case did require plaintiffs to present testimony from multiple witnesses.
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 published cases. Thus, in A.B. v. New York City Dep't of Educ., the court awarded Walsh $400 per hour, Druyan $280 per hour, Hoots $175 per hour (and $150 per hour for work performed before her admission to the bar), and Walz $300 per hour. 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 and federal actions. See Admin Billing Record at 11, Federal Billing Record at 7. 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 with “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).
Druyan has 15 years of experience, 11 of them in special education law, and billed around 29% of the attorney hours in the administrative action. See Admin. Billing Record at 11. Accordingly, we 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 Admin Billing Record at 11 (4.04 total hours). Accordingly, a rate of $160 is appropriate, which is reflective of a 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 about a third of the attorney hours in the administrative action. Admin Billing Record at 11. 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.
Finally, Greisman is newly admitted to the bar, but did the large majority of the work on the federal action. See Federal Billing Record at 7. Because Greisman has a minimal level of experience, we find a rate of $150 is appropriate for her work on the federal action. See A.D. v. New York City Dep't of Educ., 2019 WL 1292432, at *4 (S.D.N.Y. Mar. 21, 2019) (awarding a rate of $150 per hour to an associate with seven months' experience). A substantial portion of Greisman's work was performed before her admission to the bar, however, see Mem. at 16, and a rate of $125 is appropriate for this time.
As to the paralegals, a rate of $100 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 only five years' experience in the field. As such, a rate of $100 per hour for each paralegal is appropriate.
As to Fingerle, although her billing rate of $650 suggests she is an experienced attorney, see Federal Billing Record at 7, we have no way of assessing her experience given that plaintiffs provided no information, and she spent a negligible amount of time on this case, see Id. Accordingly, no fees should be awarded for her work.
C. 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. at 1153 (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
a. Pre-Offer Hours
DOE identifies the following portion of J.A.'s billing as having been conducted prior to the October 9, 2019 offer of settlement:
SWL provides no breakdown of fees before and after the offer of settlement.
| Time Keeper | Hours Claimed |
| Druyan | 9.81 |
| Hoots | 1.87 |
| Walsh | 5.69 |
| Walz | 1.5 |
| Camarena | 0.96 |
| Carey | 0.94 |
| Mannion | 0.37 |
| Sanyal | 5.29 |
| TOTAL | 26.43 |
We note DOE's assertion that J.A.'s billing request includes some time that is not recoverable under the statute. See Opp. at 19. The IDEA provides that “[attorneys' fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation described in subsection (e).” 20 U.S.C. § 1415(i)(3)(D)(ii). DOE thus claims that some of the early entries in J.A.'s billing record which explicitly reference the IEP, see Admin. Billing Record at 1 (entries for May 14-16, 2019 and May 22, 2019), are not eligible for fees, Opp. at 19. However, no IEP meeting was held here, see Mem. at 2, and thus these actions related not to “a meeting of the IEP Team,” but rather to the parents' efforts to rectify DOE's failure to provide such a meeting. Courts have recognized that the general prohibition on recovery for IEP-related work need not apply where attorney work was necessary to bring the school district to the bargaining table. See Sabatini v. Coming-Painted Post Area Sch. Dist., 190 F.Supp.2d 509, 520-21 (W.D.N.Y. 2001). We do not think the time sought is noncompensable inasmuch as no IEP meeting was ever held.
As to the remainder of J.A.'s fee request, we note the following issues. SWL bills for “conferences” and “intra-office case conferences” on at least five occasions between the commencement of the case and the offer of settlement. See Admin. Billing Record at 1-4 (entries for May 22, 2019; June 4, 2019; July 15, 2019; July 19, 2019; July 25, 2019). 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, 190 F.Supp.2d at 521. Courts have found that “duplication of effort warrants a modest reduction in the hours claimed.” Id. (collecting cases); see Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 188 F.Supp.3d 333, 342, 342 n.8 (S.D.N.Y. 2016) (applying a “more significant” discount where duplicative work related to a pre-motion conference). Additionally, some of J.A.'s entries appear to be for administrative tasks. See, e.g., Admin. Billing Record at 1-4 (May 14, 2019 entry for 0.25 hours to “[c]reate 2019-2020 SY folder”; June 19, 2019 entry for 0.17 hours to save documents; Oct. 4, 2019 entry for 0.17 hours to save documents). Tasks which are “purely administrative in nature[] are generally not compensable.” H.W. v. New York City Dep't of Educ., 2022 WL 541347, at *4 (S.D.N.Y. Feb. 23, 2022) (collecting cases).
Finally, we note that the billing here includes more than 15 hours of attorney time for a case that had not even reached the hearing stage. Overall, we think that a 10% reduction in the award is warranted in order to “trim[] fat” from the fee application here. See McDonald, 450 F.3d at 96.
DOE argues that the fees awarded for work prior to the Offer should be reduced because plaintiffs “unreasonably protracted” the administrative action by delaying between the June 2019, filing of the due process complaint and J.A.'s provision of settlement documents on September 23, 2019. Opp. at 10-11. We find that any delay in this period is adequately accounted for by the 10% reduction.
This results in the following award for hours expended prior to October 9, 2019:
| Administrative Action (Pre-Offer) | ||||
| Time Keeper | Hours Claimed | Hours Awarded | Hourly Rate | Total |
| Druyan | 9.81 | 8.829 | $290.00 | $2,560.41 |
| Hoots | 1.87 | 1.683 | $160.00 | $269.28 |
| Walsh | 5.69 | 5.121 | $375.00 | $1,920.38 |
| Walz | 1.5 | 1.35 | $367.50 | $496.13 |
| Camarena | 0.96 | 0.864 | $100.00 | $86.40 |
| Carey | 0.94 | 0.846 | $100.00 | $84.60 |
| Mannion | 0.37 | 0.333 | $100.00 | $33.30 |
| Sanyal | 5.29 | 4.761 | $100.00 | $476.10 |
| TOTAL | 26.43 | 23.787 | n/a | $5,92659 |
b. Applicability of 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, DOE made its Offer on October 9, 2019 of “$76,862.50 for tuition at the Cooke School . . . for the 2019-2020 School Year . . . [and] $3,051.25 in attorney's fees.” Offer Let.
We have found that J.A. should be awarded $5,926.59 for work performed by his attorneys prior to October 9, 2019. Accordingly, J.A. has received relief “more favorable” than the offer of settlement and is entitled to fees after the settlement date.
DOE also argues that plaintiffs' rejection of the Offer was “still unreasonable” because “the core of IDEA is the cooperative process it establishes between parents and schools” and thus J.A. should have negotiated the Offer rather than proceeding to a hearing. Id. at 9 n.5 (cleaned up) (quoting Schaffer ex rel. Shaffer v. Weast, 546 U.S. 49, 53 (2005)). We do not consider this policy argument, inasmuch as it fails to address whether the relief awarded was more favorable than the Offer.
c. Post-Offer Hours
After removing the hours already awarded for work prior to October 9, 2019, the following fee request remains for the administrative action:
| Time Keeper | Hours Claimed |
| Druyan | 4.77 |
| Hoots | 2.17 |
| Walsh | 9.25 |
| Walz | 15.55 |
| Camarena | 0.34 |
| Carey | 12.96 |
| Mannion | 0 |
| Sanyal | 6.55 |
| TOTAL | 51.59 |
We find this billing request is subject to the same shortcomings as the billing prior to October 9, 2019. SWL continues to bill for “intra-office case conferences,” see Admin. Billing Record at 5-11 (entries for Oct. 17, 2019; Jan. 21, 2020; Jan. 23, 2020; Jan. 24, 2020; Jan. 31, 2020; Mar. 2, 2020; May 4, 2020; May 18, 2020; May 26, 2020; Oct. 27, 2020), and numerous entries reflect administrative tasks, see, e.g., Id. at 5 (Oct. 23, 2019, Oct. 31, and Nov. 7 entries to save documents). We believe these flaws, as above, are adequately addressed by the same 10% percent reduction in fees awarded.
Thus, the remaining award for the administrative action should be as follows:
Administrative Action (Post-Offer)
Time Keeper
Hours Claimed
Hours Awarded
Hourly Rate
Total
Druyan
4.77
4.293
$290.00
$1,244.97
Hoots
2.17
1.953
$160.00
$312.48
Walsh
9.25
8.325
$375.00
$3,121.88
Walz
15.55
13.995
$367.50
$5,143.16
Camarena
0.34
0.306
$100.00
$30.60
Carey
12.961
1.664
$100.00
$1,166.40
Mannion
0
0
$100.00
$0.00
Sanyal
6.55
5.895
$100.00
$589.50
TOTAL
51.59
46.431
n/a
$11,608.99
Thus, with regard to the administrative action, J.A.'s counsel should be awarded $5,926.59 for work performed before DOE's offer of settlement, and $11,608.99 for work performed after that date, for a total award of $17,535.58.
2. Federal Action Hours
A prevailing party in an IDEA case is entitled to seek fees incurred in preparing a fee application. See, e.g., K.L. v. Warwick Valley Cent. Sch. Dist., 584 Fed.Appx. 17, 20 (2d Cir. 2014). Nonetheless, a district court's exercise of discretion in awarding fees allows for “great leeway” in judging the reasonableness of hours spent on a fee application. Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979), aff'd, 448 U.S. 122 (1980). Additionally, the Supreme Court has held that “the determination of fees should not result in a second major litigation.” Fox, 563 U.S. at 838 (internal quotation marks omitted); accord Ortiz v. Chop't Creative Salad Co., 89 F.Supp.3d 573, 590 (S.D.N.Y. 2015). Indeed, “[i]f the fee claims are exorbitant or the time devoted to presenting them is unnecessarily high, the judge may refuse further compensation or grant it sparingly.” Gagne, 594 F.2d at 344. Recognizing district courts' discretion concerning fee application awards, the Second Circuit has found “no abuse of discretion in [a] district court's decision to award no fees for the time spent litigating . . . [a] fee petition.” K.L., 584 Fed.Appx. at 20 (emphasis added).
One case, Davis v. City of New Rochelle, 156 F.R.D. 549 (S.D.N.Y. 1994), found that the awards for time spent on fee applications have ranged between 8% and 24% of the award for time spent on the case itself. Id. at 561. Cases since Davis are similarly within this range. See, e.g., Baird v. Boies, Schiller & Flexner LLP, 219 F.Supp.2d 510, 525 (S.D.N.Y. 2002) (awarding on fee application 10% of total attorney's fees awarded); cf. Irish v. City of New York, 2004 WL 444544, at *8 (S.D.N.Y. Mar. 10, 2004) (awarding 3% of the 210 hours spent on the underlying case). Thus, in one case, where a litigant sought approximately 33% of the overall fees as expenses for the fee application, the court ultimately granted approximately 10% of the main award. See Knoll, 2006 WL 2998754, at *3-4.
J.A.'s counsel has provided billing records that reflect the following hours expended on the instant federal action:
| Time Keeper | Hours Claimed |
| Greisman (pre-admission) | 19.02 |
| Greisman (post-admission) | 74.58 |
| Walsh | 35.4 |
| Ahlstrand | 1.3 |
| Fingerle | 0.22 |
| TOTAL | 130.52 |
Federal Billing Record at 7. Again, we do not address each of DOE's many objections to this billing. Instead, we note the following:
First, the billing throughout the federal action here reflects inefficient use of time. For example, SWL bills 1.5 hours for the act of filing the federal complaint, see Federal Billing Record at 1 (entry for Nov. 4, 2022), and 0.42 hours to have an affidavit notarized, id. (entry for Nov. 22, 2022). These are both tasks that should have taken substantially less time, particularly when billed by an attorney. SWL bills more than 40 hours in total for drafting, editing, and research relating to the instant motion. See id. at 4-5. However, the resulting papers repeat large sections of briefs that were filed months earlier in two other cases in this District. Compare Mem. with Memorandum of Law in F.R. v. New York City Dep't of Educ., (Docket # 51 in 22 Civ. 1776), and 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). Such duplication is an acceptable practice, and in some instances a desirable one, but the practice should not result in the same expenditure of time as an original brief, and in this case not an expenditure of more than 40 hours. The billing records also reflect an additional 15.45 hours billed for plaintiff's response to DOE's sur-reply. Compare Federal Billing Record at 7; Invoice, annexed as Ex. 6 to Reply (Docket # 37-6), at 6 (130.52-hour federal billing request on sur-reply response, compared to 115.07-hour request on reply). This work resulted in less than three pages of legal argument, see Sur-Reply Response, and thus the hours sought are excessive.
Some billing entries reflect the practice of “block billing,” see, e.g., Federal Billing Record at 2, 5 (entry for Dec. 21, 2022 including drafting, intra-office communication, email and document review; 8-hour entry for Mar. 3, 2023 for editing, review, and filing of a brief), which makes it difficult for the Court to assess whether time was properly spent on certain tasks, see O.R., 340 F.Supp.3d at 370. Further, the quality of the work here does not warrant a particularly generous award. The complaint in this action was initially misfiled, see Docket, and multiple documents were initially filed containing confidential information about the minor plaintiff, see Walsh Let. The billing reflects that this resulted in an increase in the time taken to prosecute the case, see Federal Billing Record at 1, 3, 6 (entries for Nov. 7, 2022; Jan. 9, 2023; May 1, 2023; May 2, 2023). Moreover, the papers were ultimately of little use to the Court in deciding reasonable hourly rates and reasonable hours expended.
Finally, the overall billing is wildly out of proportion to the needs of this federal action. The only compensable hours expended in the federal action were those to obtain a fee award for the administrative hours and for the hours expended on the fee application itself. Yet J.A. seeks 130.52 hours of billable time, which represents 167% of the 78.02 hours requested for the administrative action. When accounting for the 10% reduction in hours (which results in 70.218 hours awarded for the administrative action), this fee request represents 186% of the administrative action hours. This fee request bears no relationship at all to the needs of the case at bar. While this excessive billing may stem in part from the learning curve experienced by Greisman, a newly admitted attorney, we are left with a far greater number of hours billed than were necessary to prosecute this case. In light of this disproportionate billing and the other errors we have identified, we believe that an 80% reduction in hours awarded for the federal action is warranted.
Even with the 80% reduction, the hours sought still represent 37% of the 70.218 hours awarded for the administrative action. Or, to look at it another way, the resulting $5,393.90 award for the federal action represents 30% of the $17,535.58 award for the administrative action. While these percentages exceed the customary range identified in Davis, see 156 F.R.D. at 561, we will not make a further reduction given that the briefing involved a sur-reply and sur-reply response. See, e.g., L.M. v. New York City Dep't of Educ., 2023 WL 2872707, at *12 (S.D.N.Y. Feb. 14, 2023) (awarding 26.55 hours for work on federal fee litigation that necessitated only a brief and reply), adopted 2023 WL 2495917 (S.D.N.Y. Mar. 14, 2023).
Accordingly, J.A. should be awarded the following for the federal action:
| Federal Action | ||||
| Time Keeper | Hours Claimed | Hours Awarded | Hourly Rate | Total |
| Greisman (pre-admission) | 19.02 | 3.804 | $125.00 | $475.50 |
| Greisman (post-admission) | 74.58 | 14.916 | $150.00 | $2,237.40 |
| Walsh | 35.4 | 7.08 | $375.00 | $2,655.00 |
| Ahlstrand | 1.3 | 0.26 | $100.00 | $26.00 |
| Fingerle | 0.22 | 0 | $0.00 | $0.00 |
| TOTAL | 130.52 | 26.06 | n/a | $5,393.90 |
Thus, combined with the $17,535.58 for the administrative action, J.A. should be awarded a total of $22,929.48 in attorney's fees.
D. Costs
The billing records submitted by J.A. reflect only one cost, the $402.00 federal filing fee. See Federal Billing Record at 1. DOE has not opposed this request. Accordingly, J.A. should be awarded $402.00 in costs.
Combining the award of costs with the $22,929.48 in attorney's fees, J.A. should be awarded a total of $23,331.48.
Conclusion
For the foregoing reasons, plaintiff's motion (Docket # 27) should be granted, and plaintiff should be awarded $23,331.48 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).