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Laura P. v. Haverford School Dist.

June 12, 2009


The opinion of the court was delivered by: Juan R. Sánchez, J.


Plaintiffs, Vivian P., an 11-year-old child with autism, and her parents, seek an award of $231,832.50 in attorney's fees and $17,720.08 in costs for prevailing in their Individuals with Disabilities in Education Act*fn1 (IDEA) action against the Haverford School District.*fn2 The School District opposes the request, arguing Plaintiffs' success was limited, the requested hourly rates are unreasonable, the hours billed are excessive, and Plaintiffs cannot recover for most of their costs. The School District proposes an award of $51,464 in attorney's fees and $350 in costs. I will award $94,777.12 in attorney's fees and $473.32 in costs.


Plaintiffs brought this action seeking an award of five years' compensatory education for the School District's alleged denial of a free and appropriate public education (FAPE) and an order that Vivian be placed full-time in regular education classes. I awarded compensatory education of nearly two-and-a-half years, finding Vivian had been denied FAPE during the second semester of the 2004-2005 school year and from October 14, 2005, through the end of the 2006-2007 school year. I also ordered Vivian be placed in part-time general education and part-time special education, with language arts and math in the resource learning support classroom, and homeroom, lunch, recess, special subjects, science, and social studies in the general education setting, per the School District's proposal,*fn3 finding this to be the most appropriate placement for Vivian.


Under the IDEA, this Court has the discretion to award the prevailing party reasonable attorney's fees. 20 U.S.C. § 1415(i)(3). "[P]laintiffs may be considered 'prevailing parties' for attorney[s'] fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1933) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). Here, it is undisputed Plaintiffs are eligible to recover attorney's fees for prevailing in obtaining about two-and-a-half years of compensatory education.

The party seeking attorney's fees bears the burden of establishing the reasonableness of each factor in the lodestar equation with satisfactory evidence in addition to submitting the attorney's own affidavits. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990); Washington v. Phila. County County Court of Common Pleas, 89 F.3d 1031, 1035-36 (3d Cir. 1996) (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). The opposing party "then has the burden to challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee." Rode, 892 F.2d at 1183. The Court cannot "decrease a fee award based on factors not raised at all by the adverse party." Id. (quoting Bell v. United Princeton Prop., Inc., 884 F.2d 713, 720 (3d Cir. 1989).

A calculation of attorney's fees begins with the lodestar, the product of the appropriate billing rates multiplied by the number of hours the attorneys reasonably expended on the action. Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005) (citing Blum, 465 U.S. at 888). A reasonable hourly rate is calculated according to the prevailing market rates in the community charged by attorneys of equivalent skill and experience performing work of similar complexity. Washington, 89 F.3d at 1035-36. The attorney's usual billing rate is not dispositive. Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). Courts should also "'consider the complexity of the litigation and the sophistication of the services rendered' when setting an attorney's rates." Melissa G. v. Sch. Dist. of Phila., No. 06-5527, 2008 WL 160613, at *3 (E.D. Pa. Jan. 14, 2008) (quoting Wisdom v. Phila. Housing Auth., No. 02-8369, 2003 WL 21545123, at *4 (E.D. Pa. July 7, 2003).

After determining a reasonable hourly rate, the district court must examine the hours requested and exclude those hours that were not reasonably expended. See Rode, 892 F.2d at 1183. "Hours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary." Id. "Further, the court can reduce the hours claimed by the number of hours spent litigating claims on which the party did not succeed and that were distinct in all respects from claims on which the party did succeed." Id. (citation omitted and internal quotation marks omitted).

Once the court determines the reasonable hourly rate and the reasonable hours expended, the two figures are multiplied to obtain the lodestar. Id. "The court can adjust the lodestar downward if the lodestar is not reasonable in light of the results obtained." Id. (citing Hensley, 461 U.S. at 434-37). "[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees." Hensley, 461 U.S. at 440. "[W]here the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained." Id. If a plaintiff has achieved limited success, even where "claims were interrelated, non-frivolous, and raised in good faith," a fully compensatory amount may be excessive. Id. at 436. The court can adjust the lodestar downward for time spent litigating wholly or partially unsuccessful claims related to the litigation of successful claims. Rode, 892 F.2d at 1183. "There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment." Id. at 436-37.

Plaintiffs' attorney's fees request is based on an hourly rate of $325 and 706.1 hours spent on the case by Berney, a sole practitioner,*fn4 and an hourly rate of $100 and 23.5 hours spent on the case by Strzalka, a paralegal in Berney's office. In support of their fees request, Plaintiffs have submitted chronological lists of tasks along with the time devoted to those tasks, and affidavits regarding the experience of Berney and Strzalka and the prevailing rates in the community. In support of their costs request, Plaintiffs have submitted a list of costs along with invoices, receipts, and statements.

The School District first objects to Berney's hourly rate. Berney submits an affidavit attesting to his legal experience. Berney graduated from the University of Pennsylvania Law School in 1992 and has more than 16 years of legal experience. For the last 12 years, he has had a sole practice called the Law Offices of David J. Berney. Berney also submits the affidavits of Michael Churchill, Lorrie McKinley, and Alan L. Yatvin, attorneys practicing civil rights law in Philadelphia, who attest Berney's rate of $325 is reasonable and well within the range of the prevailing rates for attorneys of similar experience, skill, and credentials in the area.

The School District contends $280 is a more reasonable hourly rate for Berney, in light of the recent $280 hourly rate awarded to Berney in Melissa G., and because this rate better represents Berney's lack of experience in special education law. The School District also argues Berney has not satisfactorily established $325 is a reasonable rate. The School District asserts Berney has provided little evidence of his experience in special education law. The School District further attaches an affidavit prepared by Natalie M. Habert, the School District's counsel, attesting Berney's requested hourly rate is not the prevailing market rate for attorneys with his level of experience in the community. As an example, Habert cites the $285 hourly rate of Tanya Alvarado, an attorney with McAndrews Law Offices, P.C., who, like Berney, graduated from law school in 1992, but, unlike Berney, has been practicing special education law almost exclusively since joining McAndrews in 2004. Habert states that on September 29, 2008, Alvarado represented that her hourly rate was $285 for her work as lead counsel in a special education matter. I find Habert's affidavit credible and the example she provides to be persuasive.*fn5

Although Berney appears to have appreciable experience in the area of civil rights law, the extent of his experience in special education law is unclear from his affidavit. He states currently about 40% of his practice is devoted to special education matters, and provides what he calls a "partial list" of his "currently active cases or ones that have resolved favorably for the plaintiffs/Parents in the past year," listing a number of case names without cites or identifying information. Pl. Br. Exh. B, 2. At the hearing on the fees petition, Berney represented he had, at that time, 20 active special education cases. The instant case, however, is the only special education case Berney has litigated on the merits in federal court.*fn6 The affidavits Plaintiffs submit fail to show how long Berney has been practicing special education law, what kind of involvement he has had in the cases he lists, or what successes he has had. His frequent consultations with Barbara Ransom, numbering at least 33, and with "educational consultant/advocate" Patricia Amos, numbering at least 55, and the number of hours he has spent on this case demonstrate Berney has little experience in special education matters. Furthermore, Berney made this case needlessly difficult, thought it was not a complex matter. I find Alvarado's hourly rate, ...

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