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BURR BY BURR v. SOBOL

August 31, 1990

CLIFFORD BURR, BY HIS PARENTS AND NEXT FRIENDS, KENNETH BURR AND BETTY BURR, PLAINTIFF,
v.
THOMAS SOBOL, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Robert L. Carter, District Judge.

OPINION

Plaintiff moves, pursuant to the Handicapped Children's Act of 1986, 20 U.S.C. § 1415(e)(4)(B), for attorneys' fees and costs in the amount of $102,315.50. Defendant argues that the attorneys' fees should be substantially reduced and suggests the amount of $14,341.60.

I.

This case arrives at this point in the proceedings with a fairly long and complex background, with which familiarity is presumed, see Burr v. Ambach, No. 88 Civ. 7164 (RLC), slip op., 1987 WL19957 (Nov. 10, 1987) [1987 U.S.Dist.Lexis 10272], later proceeding, 683 F. Supp. 46 (S.D.N Y 1988) (Carter, J.), rev'd, 863 F.2d 1071 (2d Cir. 1988), vacated Sobol v. Burr, ___ U.S. ___, 109 S.Ct. 3209, 106 L.Ed.2d 560 (1989), re-aff'd on reconsideration, 888 F.2d 258 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990), and so only the most basic facts will be recounted here.

Plaintiff is a severely handicapped young man. Prior to this litigation, he attended a private school for the blind and retarded at public expense pursuant to the Education of the Handicapped Act, 20 U.S.C. § 1415, et seq. ("EHA"). The school closed in June, 1984, and thereafter plaintiff engaged in administrative proceedings to obtain placement in another school. The administrative proceedings were protracted which caused plaintiff to lose nearly two full academic years of education. The New York State Commissioner of Education (the "Commissioner") refused to provide compensatory education beyond plaintiff's twenty-first birthday to make up for this delay. Plaintiff appealed this decision to this court in September, 1986, claiming that the delays in the hearing process violated his right under the EHA to a due process hearing, resulting in the loss of nearly two full years of education.

This court dismissed the case on Eleventh Amendment grounds. Thereafter, plaintiff appealed to the United States Court of Appeals for the Second Circuit which held that the Eleventh Amendment did not bar this action and issued an order granting plaintiff one year of compensatory education past the age of 21 years. The Commissioner petitioned the United States Supreme Court for a writ of certiorari, which was granted. The Supreme Court vacated the judgement of the Second Circuit and remanded for further consideration in light of its recent decision in Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989). The Second Circuit considered letter briefs of the parties regarding the applicability of Dellmuth to its prior decision, then re-affirmed its prior holding and reinstated its judgment. The Commissioner again petitioned the Supreme Court for a writ of certiorari, which was denied.

During the proceedings in federal court, plaintiff was represented by Brooklyn Law School Legal Services Corporation, Federal Litigation Clinic (Kathleen A. Sullivan and various law students, of counsel) and New York Lawyers for the Public Interest, Inc. ("NYLPI") (Lewis Golinker, Ellen M. Saideman, and Herbert Semmel, of counsel).

Plaintiff now moves for attorneys' fees and costs in the following amounts:*fn1

  $20,287      District Court proceedings
  $26,828      First appeal to the Second
                 Circuit
  $19,370      Opposing the first petition
                  for certiorari
  $2,928.50    Proceedings on remand to
                  Second Circuit
  $7,899       Opposing the second petition
                  for certiorari
  $77,312.50   TOTAL on the Merits
  $4,635       Fee application in the Second
                  Circuit
  $20,218      Fee application in the District
                  Court
  $150         Costs
  $102,315.50   GRAND TOTAL

Plaintiff's requested attorneys' fees are set forth in detail by proceeding and attorney in Appendix I to this opinion.

II.

Under the EHA, a plaintiff must be a prevailing party to recover attorneys' fees. "`Plaintiffs 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, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)). It is clear that in this case the plaintiff achieved a significant victory.

Nevertheless, defendant argues that attorneys' fees are improper for time plaintiff spent opposing the first petition for certiorari which was granted by the Supreme Court and for the time plaintiff spent opposing the consolidation of this case with another. Defendant's position is incorrect. Although it is true that fees cannot be recovered for unsuccessful claims which are "distinct in all respects" from successful claims, Hensley v. Eckerhart, supra, 461 U.S. at 440, 103 S.Ct. at 1943, this is not an issue in this case as plaintiff seeks fees only for issues related to his claim for compensatory education. Regarding related claims, even if they all did not succeed, attorneys' fees are to be awarded by looking at the case as a whole and seeing who prevailed, not by having a separate fee award for each piece of the litigation. Hanrahan v. Hampton, 446 U.S. 754, 758-759, 100 S.Ct. 1987, 1989-1990, 64 L.Ed.2d 670 (1980).

Having determined that plaintiff is entitled to fees, the next step is to determine what constitutes a "reasonable fee." The accepted system is to start with the number of hours worked (excluding those which are excessive, redundant, or otherwise unnecessary) and multiply this by an appropriate hourly rate. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543-44, 79 L.Ed.2d 891 (1984). After this base amount is derived, it may then be adjusted upward or downward based on a number of factors, including, perhaps most importantly, results obtained.

Time spent by law students working on a case is properly reimbursable provided it is the prevailing practice in the community to bill separately for this time, as it is in New York. Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 2471, 105 L.Ed.2d 229 (1989). Time spent on fee applications is also compensable. Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979).

III.

Defendant's many complaints about the reasonableness of plaintiff's requested fee can be broken down into roughly three categories: the adequacy of the plaintiff's attorneys' time records, the reasonableness of plaintiff's attorneys' billing judgment, and the appropriateness of plaintiff's attorneys' hourly rates.

A.

Contemporaneous time records are necessary to receive attorneys' fees in this circuit. New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983). "These records should specify, for each attorney, the date, the hours expended, and the nature of the work done." Id. at 1148.

Defendant complains about the general inadequacy of plaintiff's attorneys' time records, particularly that various entries are undated or vague, and that different activities are lumped under the same time entry. Defendant is overly critical. Rather than looking at the big picture to see if the total time expended for each portion of this case was reasonable, defendant looks at each individual entry, and even individual parts of entries, in an attempt to determine if each one is itself reasonable. Courts have recognized that this is an unrealistic approach and should be discouraged. U.S. Football League v. National Football League, 704 F. Supp. 474, 477 (S.D.N.Y.), aff'd 887 F.2d 408 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990). See also Hensley v. Eckerhart, supra, 461 U.S. at 437, 103 S.Ct. at 1941 ("Plaintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended"). Although some of plaintiff's time records could have been better kept — a fact not surprising given the volume of time records for a case of this size — over-all they are sufficiently detailed to allow the court to assess the reasonableness of the time spent.*fn2 Furthermore, any errors due to record keeping are more than accounted for by discounting the billable hours, a technique used both by plaintiff and by the court. See infra at 101.

B.

Defendant also complains about the adequacy of plaintiff's billing judgment, specifically of duplication of efforts and of being charged by attorneys for tasks which could be performed by non-attorneys. Defendant complains of multiple attorneys appearing in court and attending meetings and conferences, the instances where more than one attorney worked on drafting a set of papers, and the hours spent conferring with co-counsel or drafting memoranda to them.

Defendant also argues that no charges should be made for certain tasks which could be performed by non-lawyers. Specifically, defendant argues that proof reading, assembling a table of cases, filing and serving briefs, and cite checking should not be reimbursed at attorney rates. This argument has some merit. Although proofreading and editing is properly an attorney's job, cite checking and assembling a table of cases could be performed by either an attorney or an experienced paralegal. Certainly if performed by an attorney, the proper billing rate is the rate appropriate to an inexperienced attorney. Filing and serving briefs can be done by a clerk and should not be charged for at attorney rates.

As set forth in Appendix I to this opinion, plaintiff arrives at his requested amount of attorneys' fees by taking the actual hours worked, then discounting the time to eliminate for any duplicate efforts, unbillable time or other inefficiencies. Generally, the time worked by the attorneys is discounted only slightly, although it should be noted that none of the time Kathleen Sullivan, lead counsel on this case, spent meeting with law students working on the case was billed. Likewise, none of the time spent by Mina Kotkin, Director of the Federal Litigation Clinic at Brooklyn Law School was billed. The time worked by the law students in discounted substantially. For the law students, only the time researching, writing and editing is counted, and this number is then discounted by 35%.

In assessing the reasonableness of the hours billed, the difficulty and novelty of the issues involved are relevant considerations. The issue in this case — whether compensatory education was an appropriate remedy under the EHA — was one of first impression in this circuit. Although defendant complains of "excessive hours" for "simple matters," its statement is belied by the effort it expended in litigating this case. It opposed plaintiff at every bend and sought certiorari to the Supreme Court twice. Furthermore, contrary to defendant's suggestion, having more than one attorney is not uncommon or impermissible in complex cases. Indeed, it is instructive to note that defendant lists two persons as being on the case in the reported opinions. See 863 F.2d 1071 (2d Cir. 1988) and 888 F.2d 258 (2d Cir. 1989).

An examination of the time records leads the court to the conclusion that the attorneys working on the case did not duplicate efforts. Although the attorneys may at times have done some non-legal work or legal work which could be performed by less skilled, and therefore less expensive, lawyers, this is adequately compensated for by the attorneys' discounted hours.

The law students, however, are another story. Given the number of law students (nine) working on this case and the fact that the students changed from semester to semester, a fair amount of duplication was inevitable. Equally inevitable was some inefficiency and waste. Although the court realizes that the hours for the law students have already been discounted by the plaintiff, they still seem too high. Courts have recognized that a percentage deduction approach to compensate for duplication is an acceptable approach. Northcross v. Board of Education, 611 F.2d 624, 636-37 (6th Cir. 1979) ("In complicated cases, involving many lawyers, we have approved the arbitrary but essentially fair approach of simply deducting a small percentage of the total hours to eliminate duplication of services"). In this case, a 15% reduction in plaintiff's adjusted hours for the law students will correct for duplication and inefficiencies.

C.

Defendant also complains that the hourly fees charged are excessive. Plaintiff requests a fee of $160 per hour for Sullivan through 1988 and $175 per hour thereafter, $225 per hour for Semmel, $130 per hour for Golinker and Saideman, and $50 per hour for the law students.

All of the attorneys who worked on this case work for non-profit entities and do not customarily bill clients by the hour. Therefore, their hourly rates should be figured by comparison to the billing rates of comparable attorneys in the general run of cases in the same city, so long as the resulting billing rates are not so high so as to give the firm an unreasonable ...


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