The opinion of the court was delivered by: Robert L. Carter, District Judge.
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.
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
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
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
$20,287 District Court proceedings
$26,828 First appeal to the Second
$19,370 Opposing the first petition
$2,928.50 Proceedings on remand to
$7,899 Opposing the second petition
$77,312.50 TOTAL on the Merits
$4,635 Fee application in the Second
$20,218 Fee application in the District
$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.
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).
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'
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.
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
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
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.
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