United States District Court, E.D. Pennsylvania
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
$28, 278. While PDE concedes that a prevailing party
is entitled to reasonable attorney’s fees under the
IDEA, it argues that Plaintiff is not entitled to the full
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, M.F., with a FAPE and demanded that PDE (the SEA)
“step into the breach.”
initiated legal action against Khepera in October 2016,
though not, initially, in federal court. The IDEA contains
procedural mechanisms to encourage dispute resolution without
litigation. See generally 20 U.S.C. § 1415(f).
For example, 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. Id. And, prior to such a hearing, an LEA is
required to convene a meeting, or “resolution session,
” to discuss and potentially resolve the complaint.
Plaintiff and Khepera entered into a settlement agreement
(“the Resolution Agreement”) following such a
session. In the Agreement, “Khepera agreed to provide
$7, 514 in compensatory education funds into a special needs
trust by January 31, 2017, and pay Plaintiff’s
attorney’s fees in the amount of $8,
500.” Lejeune v. Khepera Charter
Sch., 327 F.Supp.3d 785, 791 (E.D. Pa. 2018),
aff’d sub nom., LeJeune, 2019 WL 3335138 at *1.
Khepera ultimately breached the Agreement, failing to pay
either the $7, 514 or $8, 500. In June 2017,
Plaintiff’s attorney notified PDE that Khepera had
breached both the Agreement.
in November 2017, Plaintiff sued Khepera and PDE in federal
court, alleging that Khepera denied M.F. a FAPE and breached
its agreement 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 M.F.
with a FAPE.
PDE was investigating Plaintiff’s claims, and in a
March 26, 2018 letter, it offered to pay the $7, 514 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 $7, 514
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.
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 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.
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
M.F. with a FAPE, and, to that end, for paying the remaining
$7, 514 in compensatory education funds. Id.
However, because PDE was not involved “in the
underlying dispute giving rise to the attorney’s fees
liability, it [was] not obligated pay them.”
Id. at 803. The Court explained noted that
“[i]f, as Plaintiff contend[s], fee shifting was
integral to a free appropriate public education, Congress
would have mandated it as it has done in countless other
federal statutes.” Id.
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
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).
characterizes 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
Reasonableness of rates
seeks an hourly rate of $495 for David Berney, $325 for
Morgen Black-Smith and $270 for Kevin Golembiewski. PDE
proposes a rate of $425 for Mr. Berney, $270 for Ms.
Black-Smith and $255 for Mr. Golembiewski.
‘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).
the time of the fee petition’s submission, Mr. Berney
had practiced law for 27 years, Ms. Black-Smith for 13
years 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
PDE challenges not only the rates themselves but also their
increase over time. First, PDE argue that counsels’
rates are unreasonable because Mr. Berney, Ms. BlackSmith 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.
However, the current market rate, rather than the
date of service or the date of a prior fee petition,
is the relevant indicator for purposes of calculating a
reasonable rate. “The 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). Second, PDE 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). ...