Parent v. Hartford Bd. of Educ. & New Britain Bd. of Educ.

A., by his Parent and Next Friend Mr. A., and MR. A., Plaintiffs, v. HARTFORD BOARD OF EDUCATION and NEW BRITAIN BOARD OF EDUCATION, Defendants.

NEW BRITAIN BOARD OF EDUCATION, Plaintiff, v. J.A., a Student, and MR. A., Parent and Next Friend of J.A., Defendants.

Case No. 3:11-CV-01381-GWC

Case No. 3:11-CV-01431-GWC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

January 17, 2017

OPINION AND ORDER RE: ATTORNEYS' FEES AND COSTS

(Docs. 198, 260)

Under the Individuals with Disabilities Education Act ("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). In its July 2016 Opinion and Order on the parties' cross-motions for summary judgment, the court concluded that—although Plaintiffs were not successful on all of their claims in A. v. Hartford Board of Education, No. 11-0154 (Conn. Dep't of Educ. Aug. 2, 2011) (the "due process case")—they did obtain sufficient favorable determinations to qualify as "prevailing parties." A. v. Hartford Bd. of Educ., No. 3:11-CV-01381-GWC, 2016 WL 3950079, at *34 (D. Conn. July 19, 2016).¹ The court invited the parties to file supplemental briefs on the question of reasonable fees and costs in light of the court's rulings on the substantive issues presented in the cross-motions for summary judgment. Id. at *36. All parties have since filed supplemental briefs and responses. (Docs. 244, 245, 246, 252, 253, 254, 255, 256, 259.)²

I. Legal Standards Governing Fee Awards

A. IDEA Cases

The court recounted the legal standards governing fee awards in IDEA cases in its July 19, 2016 Opinion and Order. See A., 2016 WL 3950079, at *34-35. The IDEA authorizes the court to award "reasonable" attorneys' fees to the prevailing party. 20 U.S.C. § 1415(i)(3)(B). The IDEA requires that, if fees are awarded, they "shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection." Id. § 1415(i)(3)(C). The statute further directs the court to reduce the amount of fees awarded if it finds that:

(i) the parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;

(ii) the amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;(iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

(iv) the attorney representing the parent did not provide to the local educational agency the appropriate information in the notice of the complaint described in subsection (b)(7)(A).

Id. § 1415(i)(3)(F). Any such reductions, however, "shall not apply in any action or proceeding if the court finds that the State or local educational agency unreasonably protracted the final resolution of the action or proceeding or there was a violation of this section." Id. § 1415(i)(3)(G).

B. Section 504, ADA, and § 1983 Actions

In its July 2016 Opinion and Order, the court analyzed Plaintiffs' § 504, ADA, and § 1983 claims. See A., 2016 WL 3950079, at *27-33. The court granted summary judgment to the Hartford Board of Education (HBOE) and the New Britain Board of Education (NBBOE) on each of those claims. Id. at *36. Like the IDEA, the statutes governing § 504, ADA, and § 1983 claims include fee-shifting provisions, authorizing awards to the "prevailing party." See 29 U.S.C. § 794a(b) (Section 504); 42 U.S.C. § 12205 (ADA); 42 U.S.C. § 1988(b) (Section 1983). Each of those fee-shifting provisions pennits the court to award a "reasonable" fee to the prevailing party. As discussed below, since Defendants prevailed on these claims, no fees are awarded.

C. Methodology for Calculation of Fee

HBOE and Plaintiffs dispute the methodology that the court should use to calculate attorneys' fees under the IDEA. Plaintiffs contend that under Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542 (2010), the court must use the "lodestar approach." (See Doc. 126-1 at 103 n.18.) HBOE asserts that, notwithstanding Perdue, the court should follow the approach taken in Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany, in which the SecondCircuit found the "lodestar" metaphor unhelpful, and advanced a multifactor analysis including the twelve so-called Johnson factors to arrive at a "reasonable hourly rate" and a "presumptively reasonable fee." 522 F.3d 182, 190 (2d Cir. 2008). The twelve Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Id. at 186 n.3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

The court concludes that best course is to avoid becoming fixated on any particular method, and instead to consider both Arbor Hill and Perdue in resolving the fees question. See Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (relying on both Arbor Hill and Perdue); Echevarria v. Insight Med., P.C., 102 F. Supp. 3d 511, 515 n.2 (S.D.N.Y. 2015) (discussing Arbor Hill and Perdue, and ultimately deciding to consider both); K.L. v. Warwick Valley Cent. Sch. Dist., No. 12 Civ. 6313(DLC), 2013 WL 4766339, at *6 (S.D.N.Y. Sept. 5, 2013) (citing both Perdue and Arbor Hill). However, since 20 U.S.C. § 1415(i)(3)(C) specifically directs the court not to apply any bonus or multiplier, the court will not—as it analyzes fees related to the due process hearing—consider the "less objective factors" like risk of litigation, complexity of issues, and skill of the attorneys. Savoie v. Merchants Bank, 166 F.3d 456, 460 (2d Cir. 1999).

To determine the amount of a prevailing party's fee award, the court begins by calculating the "lodestar": "the product of a reasonable hourly rate and the reasonable number ofhours required by the case." Millea, 658 F.3d at 166 (citing Perdue and Arbor Hill). Calculation of the "lodestar" creates a "presumptively reasonable fee," and, absent "extraordinary circumstances," the court must calculate the lodestar figure "as a starting point." Id. The fee applicant must "submit appropriate documentation to meet 'the burden of establishing entitlement to an award.'" Fox v. Vice, 563 U.S. 826, 838 (2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).

II. Reasonable Hourly Rate

"[D]etermination of a reasonable hourly rate 'contemplates a case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant's counsel.'" Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 59 (2d Cir. 2012) (quoting Farbotko v. Clinton Cty. of N.Y., 433 F.3d 204, 209 (2d Cir. 2005)). This inquiry may "include judicial notice of the rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district." Id. (quoting Farbotko, 433 F.3d at 209); see also Perdue, 559 U.S. at 551 (lodestar analysis looks to "the prevailing market rates in the relevant community" (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984))).

Consistent with its prior indication, see A., 2016 WL 3950079, at *35, the court uses current rather than historic hourly rates. See Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006); Messier v. Southbury Training Sch., No. 3:94-CV-01706 (EBB), at 2-3 (D. Conn. Oct. 18, 2011), ECF No. 1124 (absent finding that delay in litigation was caused by party seeking fees or that current rate does not reflect loss attributable to delay, current rate is appropriate for calculating lodestar amount in protracted litigation). Here, the court cannotconclude that any delay in this case was caused by Plaintiffs. The court will therefore use current hourly rates.³

A. Prevailing Attorney Market Rate

At the outset of this litigation in August 2011, Attorney Shaw stated that his rate was $450 per hour for his services from May 2010 to that date. (Doc. 142-2 at 58.) Attorney Shaw has not attested to his customary hourly rate, or whether his fee in this case was fixed or contingent.⁴ But he contends that a reasonable current hourly rate for his work on this case is $500—a figure that he says is his current (2014) billing rate for "similarly complex matters." (See Doc. 126-4 at 6, ¶¶ 8-9.) He further contends that the $500 rate is consistent with awards in other federal cases in this district. Attorney Shaw also relies on the affidavits of Attorneys John C. Yavis, Jr. and Lawrence W. Berliner. (Doc. 126-5.) HBOE maintains that Attorney Shaw's rate should be $350. (See Doc. 173 at 37; Doc. 152 at 45; Doc. 210 at 6; Doc. 252 at 9.) NBBOE asserts that the current prevailing rate is $400, and that the appropriate hourly rate should be $375. (Doc. 181-1 at 25; Doc. 199 at 11; Doc. 211 at 6; Doc. 246 at 9.) Against that backdrop of the parties' divergent positions, the court turns to its case-specific inquiry.

This case required substantial time and labor, at the administrative stage, the compliance stage, and in these court proceedings.⁵ The administrative stage itself was lengthy, with 13 daysof hearings spanning five months. The parties dispute whether all that time was necessary,...