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School District of Philadelphia v. Kirsch

United States District Court, E.D. Pennsylvania

January 11, 2017

SCHOOL DISTRICT OF PHILADELPHIA
v.
ROBERT KIRSCH and KAREN MISHER, Parents of A.K., a minor SCHOOL DISTRICT OF PHILADELPHIA
v.
ROBERT KIRSCH and KAREN MISHER, Parents of N.K., a minor

          MEMORANDUM

          O'NEILL, J.

         Now before me in these consolidated civil actions[1] are motions by defendants Robert Kirsch and Karen Misher, parents of twin siblings A.K. and N.K seeking attorney's fees and costs pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(3)(B), the Rehabilitation Act of 1973, 29 U.S.C. § 794a, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205. Civ. A. 14-4910, Dkt. No. 48; Civ. A. 14-4911, Dkt. No. 36. Also before me are plaintiff the School District of Philadelphia's responses in opposition.[2] Civ. A. 14-4910, Dkt. No. 57; Civ. A. 14-4911, Dkt. No. 45. I will grant parents' motions in part for the reasons that follow.

         BACKGROUND

         A.K. and N.K. are twin minors with autism. These actions arise out of a Pennsylvania Special Education Due Process Hearing Officer's July 2014 decisions regarding the twins' educational placements. On November 30, 2015, I affirmed the Hearing Officer's decisions and granted in part and denied in part the parties' cross motions for judgment on the administrative record. Dkt. Nos. 29, 30. The District's motion was granted insofar as it sought to affirm the Hearing Officer's decisions that the District offered A.K. and N.K. a “free appropriate public education, ” or FAPE, under the Individuals with Disabilities Education Act (IDEA) in December 2013. 20 U.S.C. § 1400(d)(1)(A). See Dkt. No. 30. The District's motion was denied insofar as it sought to reverse the Hearing Officer's decisions that the District was obligated to reimburse parents for the basic costs of tuition and transportation at the private school for A.K. and N.K. from September 2013 through December 2013. Id. Parents' motion was granted insofar as parents sought to affirm the Hearing Officer's decisions that the District denied A.K. and N.K. a FAPE from the start of the 2013-14 school year through December 2013 and insofar as parents sought to affirm the Hearing Officer's decisions that A Step Up Academy (ASUA) was an appropriate private placement for A.K. and N.K. Id. Parents' motion was denied insofar as they sought to reverse the Hearing Officer's decisions that the District offered A.K. and N.K. a FAPE in December 2013. Id.

         Additionally, the District's motion to dismiss parent's counterclaims or, in the alternative, for summary judgment was granted both to the extent that the District sought judgment in its favor with respect to parents' claim that the District denied A.K. and N.K. a FAPE with its offered 2014-15 individualized education plans (IEPs) and to the extent that the District sought judgment in its favor with respect to parents' counterclaims under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Id.

         I also held that “under the stay-put provision” of IDEA, 20 U.S.C. § 1415(j), “the District is obligated to fund the twins' education at ASUA for the entirety of the 2013-14 school year even though the Hearing Officer also found that the District offered the twins a FAPE in December 2013.” Dkt. No. 22 at ECF p. 37. I found that “as with the 2013-14 school year, under IDEA's stay put provision . . . parents are entitled to tuition reimbursement for the 2014-15 school year even if the IEPs offered by the District for 2014-15 provided the twins with a FAPE.” Id. at ECF p. 41. Finally, “I agree[d] with parents that IDEA's stay put provision obligates the District to continue to reimburse parents for the twins' tuition until their claims with respect to the 2013-14 and 2014-15 school years are resolved.” Id. at ECF p. 45. Accordingly, the District was ordered “to reimburse parents for the basic costs of A.K. and N.K.'s tuition and transportation at A Step Up Academy from September 2013 to December 2013” and “to reimburse parents for the basic costs of A.K. and N.K.'s tuition and transportation at A Step Up Academy from December 2013 through the exhaustion of all appeals from the decisions of the Hearing Officer.” Dkt. No. 30.

         The Court directed the parties to confer and reach a stipulation with respect to the amounts due to parents, id., but they were unable to do so. Thereafter, I referred the parties' motions regarding the form and amount of a judgment to be entered, Dkt. No. 32, Dkt. No. 33, to Magistrate Judge Carol Sandra Moore Wells for a report and recommendation. Dkt. No. 34. Citing the stay-put provision, Judge Wells made the following findings of fact with respect to the amounts of basic tuition due for each child: (1) $35, 000.00 for the 2013-14 school year; (2) $7, 250.00 for the 2014 extended school year (ESY); (3) $35, 000.00 during the 2014-15 school year; (4) $7, 650.00 for ESY 2015; (5) $40, 000.00 to cover the 2015-16 school year; and (6) $8, 300.00 for ESY 2016. Dkt. No. 42 at ECF p. 2-3. Additionally, she found that “transportation costs for the 2013-14, 2014-15 and 2015-16 school years are $3, 201.68.” Id. at ECF p. 3. She then recommended that any award to parents be reduced by $44, 633.00 - the amount of Bravo Foundation scholarships awarded to A.K. and N.K. Id. at ECF p. 5. Judge Wells ultimately recommended that parents' motion for entry of judgment be granted and that judgment be entered in their favor in the amount of $227, 788.68. Dkt. No. 42. On June 1, 2016, I entered judgment in favor of parents and against the District in the recommended amount. See Dkt. No. 46.

         DISCUSSION

         Under IDEA, “the court, in its discretion, may 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). The ADA and Section 504 also provide for an award of fees and costs to prevailing parties. See 42 U.S.C. § 12205; 29 U.S.C. § 794a(b). The lodestar formula, which multiplies by a reasonable hourly rate the number of hours reasonably expended, provides the starting point for determining reasonable attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). Parents seek an award of attorneys' fees and costs in the total amount of $289, 694.63 as prevailing parties in the administrative proceedings below and in the present civil actions. They ask for an award to Reisman Carolla Gran LLP for its work on the federal civil action of $89, 240.10 in fees and $1, 185.86 in costs, a total of $90, 425.96. For the administrative proceedings for both A.K. and N.K., parents ask for an award to the Law Offices of Caryl Andrea Oberman of $196, 517.00 for fees and $2, 751.73 for costs, a total of $199, 268.73. Dkt. No. 48 at ECF p. 5-6.

         In response to parents' motions, the District summarizes the fees billed by parents' attorneys in a table as follows:

Summary of Lodestar

Attorney

Hours

Hourly Rate

Fees

A.K - Due Process Hearing

Caryl Oberman

1.0

$650

$650.00

Liliana Yazno-Bartle

249.0

$505

$125, 745.00

Maureen Stankiewicz, Paralegal

2.90

$120

$348.00

Heike Ross, Paralegal[3]

16.4

$90

$1, 476.00

Subtotal A.K.

271.5

$128, 829.50

N.K. - Due Process Hearing

Caryl Oberman

0.0

$650

$0.00

Liliana Yazno-Bartle

129.9[4]

$505

$65, 599.50

Maureen Stankiewicz, Paralegal

2.9

$120

$348.00

Heike Ross, Paralegal

18.9

$90

$1, 701.00

Subtotal N.K.

151.7

$67, 687.50

Total - Due Process Hearing

423.2

$196, 517.00

Federal Civil Action

Judith Gran

76.395

$595

$45, 455.03

Catherine Merino Reisman

84.63

$495

$41, 891.85

Sarah Zuba

4.8

$400

$1, 920.00

Subtotal

165.825

$89, 266.88

Grand Total

589.025

$282, 783.88

         The District contends that the “[r]easonable attorney's fees to be awarded should not exceed $65, 063.25 for the services rendered by the Law Offices of Caryl Oberman for the administrative proceeding ($86, 751 reduced by 25%) and $64, 580.55 for the services rendered by Reisman, Carolla, Gran for the federal civil action, for a total of $129, 643.80.” Dkt. No. 57 at ECF p. 22. It concedes that parents “may be entitled to a discretionary award of reimbursement for reasonable attorney's fees under IDEA” and “does not dispute that parents were the prevailing parties in the administrative proceeding and in the federal civil action to a partial degree . . . .” Id. at ECF p. 3. However, it opposes parents' motion on the grounds “that the hourly rates of the attorneys are unreasonable [and] the claimed hours spent are duplicative, excessive and unnecessary . . . .” Id. It also argues that “the copying costs and travel expenses [which parents seek to recover] are not authorized by law.” Id. Additionally, the District objects to parents' attempt to recover “the federal court filing fees because the parents' litigation strategy was to remove the petitions for review filed in the Commonwealth Court to federal court.” Id.

         Where an “adverse party raises objections to [a] fee request, the court possesses considerable discretion to adjust the award in light of those objections.” Loesch v. City of Phila., No. 05-0578, 2008 WL 2557429, at *2 (E.D. Pa. Jun. 25, 2008), citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). I will consider the District's arguments in turn.

         I. Hourly Rates

         The District challenges the reasonableness of parents' attorneys' hourly rates.[5] A reasonable hourly rate is calculated “based on rates prevailing in the community in which the action or proceedings arose for the kind and quality of services furnished.” 20 U.S.C. § 1415(i)(3)(C); see also M.M. v. Sch. Dist. of Phila., 142 F.Supp.3d 396, 404 (E.D. Pa. 2015) (same). “[A] district court may not set attorneys' fees based upon a generalized sense of what is customary or proper, but rather must rely upon the record.” Coleman v. Kaye, 87 F.3d 1491, 1510 (3d Cir. 1996). The Court must “assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). As a starting point, “[t]he best evidence of the reasonable rate for an attorney's time is the customary billing rate for clients . . . .” Gwendolyn L. v. Sch. Dist. of Phila., No. 12-0051, 2014 WL 2611041, at *2 (E.D. Pa. June 10, 2014). However, “[a]ttorneys may not rest on their own affidavits to support a claimed rate; rather, they must submit evidence that the requested rates fall within the norm of attorneys in the relevant community.” I.W. v. Sch. Dist. of Phila., No. 14-3141, 2016 WL 147148, at *5, citing Rode, 892 F.2d at 1183. Predictably, the parties here have submitted conflicting affidavits regarding the reasonableness of parents' attorneys' hourly rates.

         With respect to the attorneys involved in the administrative proceedings, parents seek an hourly rate of $505 for Liliana Yazno-Bartle, who was admitted to the bar in 1993 and has 19 years of experience with special education matters. Dkt. No. 48-1 at ECF p. 3. Parents also seek an hourly rate of $650 for a single hour of time spent on the matter by Caryl Oberman, who was admitted to practice in 1974 and has 42 years of special education experience. Dkt. No. 48-1 at ECF p. 3-4. Parents also seek to recover the costs of legal services performed by a paralegal with 20 years of experience, billed at an hourly rate of $120, and by a legal assistant with “four (5) [sic] years' experience, ” billed at an hourly rate of $90. Id. at ECF p. 3.

         For the attorneys involved in the federal civil actions, parents seek an hourly rate of $595 for Judith A. Gran, who has 33 years of “disability rights law” experience and was admitted to practice in 1983. Dkt. No. 48-2 at ECF p. 2. For Catherine Merino Reisman, who was admitted to the bar in 1989 and who has practiced special education law since 2008, they seek an hourly rate of $495. Id. at ECF p. 4-5. They request an hourly rate of $400 for the work performed by Sarah Zuba, who was admitted to practice in 2002 and has 14 years of legal experience. Id. at ECF p. 5.

         In support of their motion, parents submit the declaration of David Berney, a special education practitioner who has worked since 1996 in a civil rights practice that includes cases arising under special education laws. Dkt. No. 48-3 at ECF p. 1-2. Berney notes that his “own services are currently billed at a rate of $495 per hour.” Id. at ECF p. 9. After reviewing the experience and qualifications of parents' attorneys, considering the 2014 Community Legal Services fee schedule and a 2008 National Law Journal survey of billing rates and taking into account recent court decisions regarding fee awards to “civil rights attorneys, ” Berney concludes that “the hourly rates sought here by Defendants' counsel . . . are reasonable and comparable to rates charged by attorneys of similar reputation and experience in the Southeastern Pennsylvania area.” Id. at ECF p. 9-15.

         The District contends that the hourly rates sought for parents' attorneys are unreasonable and should instead be as follows: Caryl Oberman, $400; Liliana Yazno-Bartle, $385; Judith Gran, $400; Catherine Merino Reisman, $385; and Sarah Zuba, $300. Dkt. No. 57 at ECF p. 7. It argues that the Court should not be persuaded by parents' reliance on the 2014 Community Legal Services of Philadelphia Fee Schedule[6] “which indicates that an hourly rate of $600-650 is appropriate for attorneys with more than 25 year[s] experience . . .” because “the Parties['] declarations and survey of recent decisions show that no other attorney in the special education field commands an hourly rate of $595, $495 or $650.” Id. at ECF p. 12. The District also contends that Berney's declaration is incompetent evidence of prevailing market rates. Id. at ECF p. 10. It argues that Berney's conclusion is “self-interested, ” noting that “multiple judges in the Eastern District in 2013, 2014 and 2015 have determined a ‘reasonable rate' for Mr. Berney's services . . . range[s] between $350 to $385.” Id. at ECF p. 12. It also argues that Berney's declaration, along with the declarations of Yazno-Bartle and Gran “are insufficient because they provide no support for their conclusory opinions” regarding the reasonableness of the hourly rates requested. Id. at ECF p. 11. The District contends that the declarations do “not draw on comparisons of other practitioners of comparable skill, experience and reputation and the rates they are charging actual clients.” Id.

         In support of the rates which it proposes, the District relies on the declaration of Gabrielle Sereni, who posits that “given . . . recent [court] holdings concerning hourly rates of practitioners in this geographic region with similar or more experience to that of Attorneys Gran, Oberman, Reisman and Yazno-Bartle, an hourly rate in the range of $385-$450 reasonably reflects these colleagues' experience in the field of special education law in this geographical [sic] area.” Dkt. No. 57-1 at ECF p. 10. Sereni cites two cases to bolster her conclusion. First, she cites School District of Philadelphia v. Williams, a March 2016 decision in which the Court held that “[i]t is clear that highly experienced special education lawyers in Philadelphia regularly seek compensation of between $400 and $500 per hour.” No. 14-6238, 2016 WL 877841, at *3 (E.D. Pa. Mar. 7 2016); see also id. (“$600 is not the prevailing market rate for any special education attorney.”). Sereni also cites M.M. v. School District of Philadelphia, a November 2015 decision where the Court awarded Berney an hourly rate of $385. 142 F.Supp.3d 396, 406 (E.D. Pa. 2015), appeal dismissed (3d Cir. 15-3824, Sept. 9, 2016).

         Ultimately, parents' submitted proof is not sufficient to establish that the hourly rates which they seek are reasonable. Other than Berney's declaration, they have not set forth any evidence to support a finding that the fees requested by their attorneys are indeed the fees they ordinarily command in the market (e.g., billing statements to fee-paying clients). Further, Berney's declaration does not rely on any direct evidence of actual rates charged for similar services by lawyers of reasonably comparable skill, experience and reputation other than his own billing rate. To the extent that Berney relies on prior cases to guide his conclusion regarding reasonable hourly rates, his declaration does not rely on fee award determinations made solely in the context of IDEA, the ADA or Section 504. And even if it did, “prior cases are not even particularly instructive as fees fluctuate to keep pace with inflation and changing market conditions.” D'Orazio v. Washington Twp., No. 07-5097, 2011 WL 6717427, at *3 ...


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