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Lejeune, G. v. Khepera Charter School

United States District Court, E.D. Pennsylvania

September 24, 2019

LEJEUNE, G. Individually and on behalf of T.T., Plaintiff,



         Plaintiff moves for reasonable attorney’s fees under the Individuals with Disabilities Act (IDEA), 20 U.S.C. § 1415(i)(3)(B)(i)(I), in connection with her action against Defendants Khepera Charter School (“Khepera”) and the Pennsylvania Department of Education (PDE). She requests $97, 987.50[1] in fees and $497.09 in costs. While Defendants concede that a prevailing party is entitled to reasonable attorney’s fees under the IDEA, they argue that Plaintiff is not entitled to the full amount requested.

         I. BACKGROUND

         The IDEA “requires that every child with a disability receive ‘free appropriate public education’” (FAPE). LeJeune G. v. Khepera Charter Sch., 2019 WL 3335138, at *1 (3d Cir., July 25, 2019) (quoting 20 U.S.C. § 1412(a)(1)(A)). “To ensure that a FAPE is provided to all disabled children, the IDEA provides that federal funding be distributed to State educational agencies (SEAs), which, in turn, allocate those funds to local educational agencies (LEAs).” Id. While “LEAs are charged with directly providing or arranging for third-party provision of a FAPE, ” SEAs are responsible for “ensuring compliance with the IDEA and administering educational programs for disabled children.” Id. (internal quotation omitted). When an LEA is unable to provide a FAPE-for example, due to insolvency-the SEA becomes responsible for “step[ping] into the breach.” See Id . at *3. In the litigation underlying this fee request, Plaintiff alleged that Khepera (the LEA) failed to provide her child, T.T., with a FAPE and demanded that PDE (the SEA) “step into the breach.”

         Plaintiff initiated legal action against Khepera in November 2014, though not, initially, in federal court. Under the IDEA, a parent who files a complaint alleging that an LEA denied her child a FAPE is entitled to an “impartial due process hearing” before a hearing officer. See generally 20 U.S.C. § 1415(f). In Pennsylvania, the Commonwealth’s Office of Dispute Resolution conducts IDEA hearings. See 22 Pa. Code § 14.162. After a due process hearing on the November 2014 complaint, the hearing officer ordered Khepera to provide T.T. with compensatory education. Khepera subsequently agreed to pay $160, 000 towards a trust for T.T.’s education (“the Implementation Agreement”). The Implementation Agreement also provided for reasonable attorney’s fees in the event of a breach. Then, in August 2015, Plaintiff filed a second due process complaint against Khepera, and Khepera ultimately agreed to: 1) pay an additional $9, 240 into the trust; 2) pay T.T.’s 2015–2016 tuition to the YALE school, a private school for students with disabilities; 3) reimburse $10, 560.96 for tuition already paid to YALE; and 4) pay Plaintiff’s attorney’s fees (“the Resolution Agreement”). Khepera ultimately breached both agreements, failing to pay $44, 445 in compensatory education payments towards the trust and the 2015-16 YALE tuition. In June 2017, Plaintiff’s attorney notified PDE that Khepera had breached both the Implementation and Resolution Agreements.

         Then, in November 2017, Plaintiff sued Khepera and PDE in federal court, alleging that Khepera denied T.T. a FAPE and breached its agreements with Plaintiff, and characterizing Khepera as “either unwilling or unable” to fulfill its obligations. The Complaint also alleged that PDE was responsible for remedying these breaches and providing T.T. with a FAPE. Khepera did not respond to the Complaint, so Plaintiff’s allegations regarding it were deemed admitted. See Fed. R. Civ. P. 36(a)(3).

         Meanwhile, PDE was investigating Plaintiff’s claims, and in a March 26, 2018 letter, it offered to pay the $44, 445 in compensatory education payments owed by Khepera. Plaintiff, however, was dissatisfied with PDE’s offer as it did not provide all the relief agreed to by Khepera in the Implementation Agreement. Rather than paying the $44, 445 directly to the trust, PDE determined that the funds were to be administered through the Pennsylvania Training and Technical Assistance Network (PaTTAN). Unlike the trust funds, the PaTTAN funds could not be used for recreational activities, private placements and post-secondary tuition. PDE’s offer also did not include attorney’s fees and costs and did not address the issue of the YALE tuition.

         On April 27, 2018, Plaintiff moved for summary judgment against both Khepera and PDE and PDE cross-filed for summary judgment against Plaintiff. The Court granted Plaintiff’s motion for summary judgment on August 29, 2018, on the basis that Khepera 1) breached the Implementation Agreement[2] and 2) breached the Resolution Agreement, but noted that “matters do not end there because Khepera is experiencing financial difficulties and has refused to pay its obligations under Plaintiff[’s] agreement[].” Lejeune, 327 F.Supp. 3d at 797.

         With respect to PDE’s motion for summary judgment, the Court granted it in part and denied it in part. With respect to PDE’s responsibility for Khepera’s obligations, “the IDEA does not require an SEA to step in and fulfill IDEA resolution agreements when an LEA is merely ‘unwilling’ to comply;” however, an LEA is required “to step into the breach” where a Plaintiff has demonstrated that an SEA is “unable” to do so. Id. at 800. Because Plaintiff had indeed proven that Khepera was unable to fulfill its obligations, PDE was responsible for providing T.T. with a FAPE, and, to that end, for paying the remaining $44, 445 in compensatory education funds. Id. However, because PDE and Khepera’s obligations were not determined to be coextensive-PDE was responsible for providing T.T. with a FAPE, no more and no less- PDE was not required to “step into the breach” to the extent that Khepera’s obligations exceeded the IDEA’s requirements. Specifically, while PDE was bound by its March 26 offer, it was not bound by Khepera’s agreement to deposit the compensatory education funds into the trust, because administering the funds through PaTTAN did not amount to a FAPE denial. PDE was also not bound by the Resolution Agreement because T.T. was not denied a FAPE by Khepera’s nonpayment of the YALE tuition.

         Plaintiff moved for attorney’s fees following summary judgment, but both parties asked for a stay while Plaintiff appealed the Court’s partial grant of summary judgment in PDE’s favor. The decision was affirmed in all respects. LeJeune, 2019 WL 3335138 at *4. Now that the appeal has concluded, Plaintiff once again moves for reasonable attorney’s fees under the IDEA. Her fee petition requests compensation for services provided by three members of Berney & Sang: founding partner David Berney, associate Kevin Golembiewski and former associate Morgen Black-Smith.[3]


         “Under the IDEA, a 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.” Ida D. v. Rivera, 2019 WL 2615481, at *6 (E.D. Pa. June 26, 2019) (quoting 2 U.S.C. § 1415(i)(3)(B)(i)(I)); see also M.R. v. Ridley Sch. Dist., 868 F.3d 218, 224 (3d Cir. 2017). The burden of proving that a particular request is reasonable rests on the requesting party. See Rode v. Dellarciprete, 892 F.2d 1117, 1183 (3d Cir. 1990).

         i. Prevailing Party

         Khepera denies that Plaintiff prevailed in the underlying litigation.[4] “Generally, parties are considered prevailing parties if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. A party need not achieve all of the relief requested nor even ultimately win the case to be eligible for a fee award.” Ida D, 2019 WL 2615481, at *6 (internal quotations and citations omitted). “[T]o ‘prevail’ under the IDEA, as under other statutes[5] with ‘prevailing party’ fee provisions, a party must obtain a “material alteration of the legal relationship of the parties” that is “judicially sanctioned.’” M.R., 868 F.3d at 224 (quoting Raab v. City of Ocean City, New Jersey, 833 F.3d 286, 292 (3d Cir. 2016)).

         Khepera argues the August 2018 judgment did not materially alter Plaintiff’s legal relationship with Khepera and characterizes Plaintiff’s success on summary judgment as “purely technical and de minimis.” Because “Plaintiff already had contractual and statutory rights to enforce her agreement, ” Khepera reasons, and because “Khepera admitted at the outset to having breached the agreement, ” the August 2018 judgment changed nothing.

         Khepera’s attempt to dismiss Plaintiff’s summary judgment victory is self-defeating. As Khepera admits, Plaintiff had the right to “enforce” her agreements (i.e., the Implementation and Resolution Agreements) with Khepera. But, these agreements were not self-enforcing. So, Plaintiff sued to obtain a judgment to enforce them. While “a plaintiff does not become a ‘prevailing party’ solely because his lawsuit causes a voluntary change in the defendant’s conduct, ” obtaining an enforceable order does confer such status, even where the parties reached an ostensible agreement prior to the order’s issuance.[6] See People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 232 (3d Cir. 2008) (explaining that “a settlement agreement enforced through a consent decree can serve as the basis for an award of attorneys’ fees”) (citing Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)). While Plaintiff’s Agreements with Khepera provided the possibility of judicial enforcement, the August 2018 judgment actually enforced them. This constituted a material alteration in their relationship. Plaintiff therefore prevailed against Khepera.

         ii. Reasonableness

         Defendants characterize Plaintiff’s requested fee as unreasonable. “The 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.” Rode, 892 F.2d at 1183 (internal quotations omitted). “Once the court determines the reasonable hourly rate, it multiplies that rate by the reasonable hours expended to obtain the lodestar, ” which “is presumed to be the reasonable fee.” Id. Though “the party seeking attorney’s fees has the burden to prove that its request for attorney’s fees is reasonable with the submission of evidence supporting both the hours and rate claims, ” “[i]n a statutory fee case, the party opposing the fee award then has the burden to challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee.” Finnegan v. Smith, 2019 WL 1052013, at *2 (M.D. Pa. Mar. 5, 2019) (internal citations omitted). Additionally, the “district court has the discretion to . . . adjust the lodestar downward [to] account[] for time spent litigating wholly or partially unsuccessful claims that are related to the litigation of the successful claims.” Id.[7]

         a. Excessive rates

         Plaintiff seeks an hourly rate of $495 for David Berney, $325 for Morgen Black-Smith and $270 for Kevin Golembiewski. Both Khepera and PDE characterize these rates as excessive, though they disagree about the proper rate. PDE proposes a rate of $425 for Mr. Berney, $270 for Ms. Black-Smith and $255 for Mr. Golembiewski; Khepera proposes a rate of $367.50 for Mr. Berney, $270 for Ms. Black-Smith and $240 for Mr. Golembiewski.

         “The ‘starting point’ in determining the appropriate hourly rate is the attorneys’ usual billing rate. The Supreme Court has directed that the district court should then consider the ‘prevailing market rates’ in the relevant community, ” Pennsylvania Envtl. Def. Found. v. Canon-McMillan Sch. Dist., 152 F.3d 228, 231 (3d Cir. 1998) (internal quotations and citations omitted), for attorneys of “comparable skill, experience, and reputation, ” Rode, 892 F.2d at 1183. “[A]ffidavits of non-party attorneys with personal knowledge of the hourly rates customarily charged in the relevant community” may constitute evidence of the market rate. Apple Corps. Ltd. v. Int’l Collectors Soc., 25 F.Supp.2d 480, 492 (D.N.J. 1998). Additionally, “[t]he fee schedule established by Community Legal Services, Inc. (CLS) has been approvingly cited by the Third Circuit as being well developed and has been found by [the Eastern District of Pennsylvania] to be a fair reflection of the prevailing market rates in Philadelphia.” Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001) (internal quotations omitted).

         As of the time of the fee petition’s submission, Mr. Berney had practiced law for 27 years, Ms. Black-Smith for 13 years[8] and Mr. Golembiewski for 6 years. Mr. Berney “has successfully litigated hundreds of education law cases and regularly teaches and published on special education law, ” and Ms. Black-Smith and Mr. Golembiewski have also published on special education law and successfully litigated education cases. Ida D., 2019 WL 2615481, at *7. It is undisputed that the rates requested in the fee petition are Mr. Berney, Ms. Black-Smith and Mr. Golembiewski’s usual billing rates for fee paying clients. All three attorneys have also provided declarations detailing their education, credentials and experience; these declarations, as well as declarations from Philadelphia civil rights attorneys attesting to Mr. Berney, Ms. BlackSmith and Mr. Golembiewski’s experience and skill and to the reasonableness of their rates, are included in Plaintiff’s request. Tellingly, the rates charged by all three attorneys are also below those outlined in the CLS schedule for attorneys with comparable experience-a fact that neither Defendant disputes.[9]

         Nevertheless, Defendants challenge not only the rates themselves but also their increase over time. First, Defendants argue that counsels’ rates are unreasonable because Mr. Berney, Ms. Black-Smith and Mr. Golembiewski billed lower rates at the onset of this litigation-and, in Mr. Golembiewski’s case, requested a lower rate in the first fee petition-than they do now. Defendants contend the rate should reflect the cost of counsel’s time on the date services were rendered, rather than current billing rates. However, the current market rate, rather than the date of service, is the relevant indicator for purposes of calculating a reasonable rate, and “[t]he current market rate is the rate at the time of the fee petition, not the rate at the time the services were performed.” Lanni v. New Jersey, 259 F.3d 146, 149–50 (3d Cir. 2001) (emphasis added). In Lanni, the Third Circuit rejected a district court’s attempt to apply the very standard Defendants advocate here, describing the district court’s decision to “calculate[] fees on a graduated scale roughly tracking the actual historical rates of [counsel]” as “inexplicabl[e].” Id.; but see Steward v. Sears, Roebuck & Co., 2008 WL 1899995, at *3 (E.D. Pa. Apr. 29, 2008) (declining to award counsel an increased rate based solely “on the passage of time”). Second, Defendants argue that Ms. Black-Smith’s rate should be reduced to reflect the $270 rate awarded in Nicole B. v. Sch. Dist. of Philadelphia, 2017 WL 783757 (E.D. Pa. Feb. 28, 2017) and Jada H. v. Rivera, 2019 WL 2387929, at *2 (E.D. Pa. June 6, 2019). However, Nicole B. concluded before this case was filed, and “[h]ourly rates that were set for a specific attorney in previous court decisions do not generally constitute record evidence unless those rates were set for the same attorney and for the same type of work over a contemporaneous time period.Nicole B., 2017 WL 783757, at *3 (internal quotations omitted) (emphasis added). While Jada H. was filed after this case, the court reduced Ms. Black-Smith’s rate on the basis of her “limited time practicing special education law.” However, this court is not bound by the Jada H. decision, and like the court in Ida D., considers Ms. Black-Smith’s legal experience as a whole. See Ida D. v. Rivera, 2019 WL 2615481, at *8.

         Plaintiff has submitted enough evidence to prove the reasonableness of the requested rates, and Defendants’ arguments concerning the rates’ change over time does not disprove their reasonableness.

         b. Ex ...

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