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Neena S. v. School District of Philadelphia

July 27, 2009

NEENA S., A MINOR, BY AND THROUGH HER PARENTS, ROBERT AND TAMI S., AND ROBERT AND TAMI S., ADULTS, INDIVIDUALLY, AND ON THEIR OWN BEHALF
v.
THE SCHOOL DISTRICT OF PHILADELPHIA



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Plaintiffs Neena S., Robert S. and Tami S. seek an award of $92,761.55 in attorneys' fees and $2,934.73 in costs for prevailing in their Individuals with Disabilities Education Act (IDEA) action against defendant School District of Philadelphia. The District opposes the request and proposes an award of $19,692.92 in attorneys' fees and $250 in costs. Before me now are plaintiffs' motion for attorneys' fees and costs, defendant's response and plaintiffs' reply thereto.

BACKGROUND

Plaintiffs Neena S. and her parents Robert S. and Tami S. requested due process hearings pursuant to 34 C.F.R. § 300.507 to address the period starting with Neena's 1997-1998 school year. The hearing officer, after granting prior continuances in response to an indication that the parties hoped to reach a resolution and not receiving status updates from the parties on requested dates, closed these proceedings on June 24, 2003, January 6, 2004, June 26, 2004 and January 11, 2005, respectively, stating that there did not appear to be a need for a due process hearing at those times.

During the filing, continuances, closing and refiling of the due process requests, the need arose to deal with truancy proceedings in which plaintiffs allegedly needed counsel to argue the truancy's relation to the District's failures asserted in the due process proceedings. As a result of the truancy proceedings, the District provided Neena services and plaintiffs' attorneys assisted in obtaining services at Lindamood-Bell Learning Center.

Thereafter in 2005, plaintiffs requested a hearing pursuant to 34 C.F.R. § 300.507 seeking compensatory education. A hearing officer held a due process hearing in two sessions on March 22, 2005 and June 29, 2005. On July 19, 2005, the hearing officer entered a decision denying plaintiffs relief after finding that the District had offered Neena a free appropriate public education (FAPE) for the one-year period of January 2004 to June 2005 and that Neena was not entitled to compensatory education. The hearing officer found that the plaintiffs' requested relief for the period before January 2004 was unavailable because such relief was barred by the statute of limitations.

Neena's parents filed timely exceptions to the hearing officer's order pursuant to 22 Pa. Code. § 14.162(o). On August 23, 2005, a Pennsylvania Special Education Appeals Panel affirmed the decision.

Neena's parents appealed to this Court challenging the limitation of the period from January 2004 to June 15, 2005 and the finding that the District did not deny Neena a FAPE during the January 2004 to June 1, 2005 period. On March 27, 2006, I held that the statute of limitations imposed by the hearing officer on July 19, 2005 and affirmed by the Panel on August 23, 2005 did not apply to this case.*fn1 I remanded the case to determine what compensatory education if any should be awarded.

On remand, the hearing officer issued a decision July 22, 2006 that Neena was not offered a FAPE from February 1998 through January 9, 2004 because her IEPs were inappropriate which contributed toward a lack of meaningful progress. Compensatory education of three hours for the period of February 10, 1998 to the 2001-2002 school year and four hours for the 2001-2002 school year was awarded for each day that Neena attended school. The hearing officer limited the use of these hours to reading, math, science and social studies and permitted the awarded hours also to be used towards reading and mathematics skill-building and/or vocational counseling and training. Compensatory education was not awarded for the 2002-2003 school year through January 9, 2004 because of Neena's failure to attend school during this period.

Her parents filed exceptions to the hearing officer's restrictions on Neena's use of compensatory education to the Appeals Panel which affirmed the decision on August 18, 2006. On October 19, 2006, plaintiffs filed a "complaint following remand" against the District challenging the final decision of the Pennsylvania Special Education Appeals Panel and seeking compensatory damages, the removal of the restrictions on the compensatory education awarded for Neena's denial of a FAPE for the 1997-1998 school year through the 2001-2002 school year and compensatory education for the 2002-2003 school year through June 15, 2005. Plaintiffs sought such relief under the IDEA, 20 U.S.C. §§ 1400 et seq. (2007), 42 U.S.C. § 1983 of the Civil Rights Act and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. Plaintiffs and the District filed cross motions for summary judgment.

On December 19, 2008, I granted defendant's motion for summary judgment requesting that I: (1) affirm the administrative record finding a denial of FAPE during the 1997-1998 school year through the 2001-2002 school year and awarding compensatory education for this period; (2) affirm the administrative record finding no denial of FAPE during the period of January 10, 2005 through June 15, 2005; (3) affirm the administrative record finding a denial of FAPE during the period of the 2002-2003 school year through January 9, 2004 but awarding no compensatory education; and (4) deny plaintiff's request for compensatory damages under § 1983, § 504 and the IDEA. I denied defendant's motion for summary judgment on plaintiff's request for compensatory education under § 504 and granted plaintiff's motion in this regard for the same compensatory education awarded under the IDEA at the administrative level. I denied plaintiff's cross motion for summary judgment for all other claims involving the denial of compensatory education, compensatory damages or the restrictions placed on the use of the compensatory education awarded.

DISCUSSION

Under the IDEA, I have the discretion to award the prevailing party reasonable attorneys' 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).

The party seeking attorneys' fees bears the burden of establishing the reasonableness of each factor in the lodestar equation with satisfactory evidence in addition to submitting the attorneys' own affidavits. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990); Washington v. Phila. County Ct. 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. I 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 attorneys' fees begins with the lodestar which is 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 attorneys' usual billing rate is not dispositive. Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). I 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., 2008 WL 160613, at *3 (E.D. Pa. Jan. 14, 2008).

After determining a reasonable hourly rate, I must examine the hours requested and exclude those hours that were not reasonably expended. SeeRode, 892 F.2d at 1183. Once I determine the reasonable hourly rate and the reasonable hours expended, the two figures are multiplied to obtain the lodestar. Id. I "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.

Plaintiffs' attorneys' fees request of $92,761.55 is based on the services of the following attorneys and paralegals at their varying hourly rates and contributing hours: David T. Painter at $270 for 6.01 hours; Dennis C. McAndrews, Esquire at $375 for 24.70 hours; Emily Foote at $90 for 16 hours; Gabrielle C. Sereni, Esquire at $270 for 59.68 hours; Heather Hulse at $125 for 0.25 hours; Heidi Konkler at $270 for 0.51 hours; Janice Hardy at $120 for 16.43 hours; Marcie Romberger, Esquire at $315 for 113.85 hours; Pat Barr at $85 for 0.75 hours; and Sarah Davis, Esquire at $230 for 116.05 hours. In support of their requested fees, plaintiffs have submitted chronological lists of activities along with the time devoted to those tasks, and affidavits and ...


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