R.B.A v. JERSEY CITY BOARD OF EDUCATION

FUONRI TTEHDE SDTISATTREISC DTI OSTFR NICEWT C JOERUSRETY

R.B.A, individually and on behalf of

G.A., and R.M.A., individually and on Civil Action No. 15-cv-8269 (LDW)

behalf of G.A.,

Plaintiffs, MEMORANDUM OPINION

v.

JERSEY CITY BOARD OF

EDUCATION,

Defendant.

Before the Court is Plaintiffs’ Motion for Attorneys’ Fees brought pursuant to § 1415 of

the Individuals with Disabilities Education Act. 20 U.S.C. § 1415(i)(3)(B)(i). (ECF No. 132).

The Motion arises from Defendant Jersey City Board of Education’s year-and-a-half long failure

to reimburse Plaintiffs, parents of a disabled child, for their child’s educational evaluation costs in

the amount of $16,716.25, as required under the parties’ Court-approved Settlement Agreement.

(See ECF Nos. 119, 120). Defendant opposes the Motion. (ECF No. 141). The Court decides the

Motion without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure.1

Having considered the parties’ submissions, and for the reasons set forth below, the Motion is

GRANTED.2

1 The undersigned issues this Memorandum Opinion and Order in accordance with the

parties’ December 14, 2020 Notice of Consent to proceed before a Magistrate Judge for all further

proceedings. (ECF No. 118).

2 As set forth herein, the Court grants Plaintiffs’ Motion for Attorneys’ Fees but reduces the

requested revised lodestar award from $49,729.50 to $42,126.50.

I. BACKGROUND

Plaintiffs R.B.A. and R.M.A. (“Plaintiffs”) brought this action individually and on behalf

of their son G.A., a child with “profound global developmental delays” and a visual impairment,

alleging that defendant Jersey City Board of Education (“Defendant” or “the District”) denied G.A.

a free and appropriate public education in violation of federal law. Plaintiffs asserted claims under

the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), Section 504

of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and Title II of the American with

Disabilities Act, 42 U.S.C. § 12131 et seq (“ADA”). (Complaint, ECF No. 1 ¶¶ 1, 21). Through

this federal action, Plaintiffs challenged the State of New Jersey Office of Administrative Law

Judge’s due process determination in favor of the District and sought compensatory education,

reimbursement for an independent educational evaluation of G.A., programmatic changes to his

individualized education plan, and declaratory relief arising from the District’s alleged violations

of G.A.’s rights under the IDEA, Section 504, and the ADA. Plaintiffs also sought statutory

attorneys’ fees and costs. (Id. ¶¶ 1-2; Exh. A).

After years of litigation and numerous Court-conducted settlement conferences before the

previously assigned Magistrate Judge, the Hon. Steven C. Mannion, and the undersigned, see ECF

Nos. 52, 90, 102, 103, 105, 107, the parties reached a settlement in principle before the undersigned

on October 19, 2020. (ECF No. 116). The settlement was then reduced to a writing on November

10, 2020. (ECF No. 119). Pursuant to the Agreement, the District was required to provide 1312.5

hours of compensatory education to G.A. and to reimburse Plaintiffs, as prevailing parties, for

$250,000.00 in attorneys’ fees and $16,716.25 in costs arising from G.A.’s education evaluations.

(See Settlement Agreement, ECF No. 119-1). As a condition to the Agreement, Plaintiffs

requested and the District agreed to this Court’s retention of jurisdiction over enforcement until all

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obligations of the settlement were satisfied. (See id. ¶ 15; ECF No. 120). The parties filed a

Consent Order consenting to the jurisdiction of the undersigned for all further proceedings, which

was entered by the Honorable Madeline Cox Arleo, U.S.D.J. on December 14, 2020. (ECF No.

118). Upon the request of the parties, the undersigned reviewed and approved the terms of the

Settlement Agreement and retained jurisdiction to enforce them, as memorialized in the December

21, 2020 Order of the Court. (ECF No. 120).

In accordance with the Agreement, the District paid to Plaintiffs’ counsel’s firm all monies

owed for attorneys’ fees but failed to timely reimburse Plaintiffs for the $16,716.25 arising from

G.A.’s evaluation costs. (See Deft. Brief at 1-2, ECF No. 141). Per the Agreement, the District

was to remit payment for those costs within sixty days of submission of the relevant invoices.

Plaintiffs’ counsel provided the invoices documenting the evaluation expenses on February 16,

2021. Reimbursement therefore was to be made on or before April 17, 2021. (See Settlement

Agreement ¶ 2, ECF No. 119). From April 2021 to July 2022, Plaintiffs’ counsel tried and failed

to enforce Plaintiffs’ right to those educational evaluation costs without seeking Court

intervention. (See id.). On July 10, 2022, over a year after the agreed reimbursement was to be

made, Plaintiffs filed a formal Motion to Enforce the Settlement Agreement and sought an award

of attorneys’ fees that had accrued in pursuing enforcement of the Court’s December 21, 2020

Order. (ECF No. 121). The Motion to Enforce, having been filed without premotion leave of

Court, was terminated, and was instead treated as a letter application to which Defendant was

Ordered to respond. (See ECF No. 123). In response, the District acknowledged its delinquency

under the Agreement and requested that the undersigned allow it thirty days to issue the

outstanding payment to Plaintiffs’ counsel. The Court “So Ordered” the District’s letter request.

(ECF No. 125).

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The Court, not having received notice that the District had completed reimbursement

within the time set by the Letter Order, convened a conference on September 21, 2022 to address

Defendant’s failure to comply with the Court-approved Settlement Agreement. To obviate the

need for further motion practice on the Motion to Enforce, the undersigned directed the District to

make all necessary efforts to meet its obligation by the next Court conference on October 18, 2022.

(See ECF No. 127). Defense counsel then failed to appear before the undersigned on that date.

(See ECF No. 129). The Court convened yet another conference on November 14, 2022, during

which Plaintiffs’ counsel informed the undersigned that the District finally had paid the amount

owed under the Settlement Agreement. Counsel for Plaintiffs requested leave to file an application

for attorneys’ fees for his enforcement activities, which request to file the Court granted. The

instant Motion followed. (ECF No. 132).3

Plaintiffs assert that they are entitled to attorneys’ fees associated with their enforcement

of the Court-approved Settlement Agreement pursuant to § 1415(i)(3) of the IDEA, which

authorizes the Court to award reasonable fees to the “prevailing party” in “any action or

proceeding” brought under the statute. (Pl. Brief at 6-9, ECF No. 132). The District responds,

inter alia, that although Plaintiffs prevailed under the Settlement Agreement, they are not

“prevailing parties” under IDEA in the context of this Motion for fees that accrued post-settlement.

(Deft. Opp. at 9-13). For the reasons set forth below, the Court finds that Plaintiffs, as prevailing

parties, are entitled to reasonable attorneys’ fees for efforts to enforce the parties’ Settlement

Agreement.

3 At the request of the parties, the undersigned suspended consideration of the Motion for

several months to allow the parties to resolve the requested fees amicably. (See ECF Nos. 131,

136, 137). Counsels’ efforts to settle the fee dispute having failed, the undersigned entered a

schedule for the remaining briefing on the Motion. (See ECF No. 140).

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II. LEGAL STANDARD

To adjudicate the instant Motion for attorneys’ fees, the Court must first determine whether

Plaintiffs achieved “prevailing party” status under the IDEA by virtue of the Court-approved

Settlement Agreement and, if so, whether such status continued into counsels’ post-settlement

enforcement activities such that fee-shifting is available under the statute. 20 U.S.C. §

1415(i)(3)(B). If that is so, the Court must then determine whether the fee requested is

“reasonable.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

Although under the “American Rule,” parties are generally responsible for their own

attorneys’ fees, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), the

IDEA explicitly authorizes an award of attorneys’ fees “as part of the costs to the parent of a child

with a disability who is the prevailing party.” P.N. v. Clementon Bd. Of Educ., 442 F.3d 848, 852

(3d Cir. 2006) (quoting J.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002)); see

20 U.S.C. § 1415(i)(3)(B) (granting courts discretionary power to “award reasonable attorneys’

fees” to “a prevailing party” “in any action or proceeding” brought under the IDEA).

The Supreme Court has adopted “‘a generous formulation’ of ‘prevailing party’ status” as

included in civil rights fee-shifting provisions. Id. at 855 (quoting Tex. State Teachers Ass'n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)). Plaintiffs may be considered “prevailing

parties” for attorneys’ fees purposes “if they succeed on any significant issue in litigation which

achieves some of the benefit the parties sought in bringing suit.” John T. ex rel. Paul T. v. Del.

County Intermediate Unit, 318 F.3d 545, 560 (3d Cir. 2003) (quoting Hensley, 461 U.S. at 433).

In Buckhannon Bd. V. West Virginia D.H.H.R., 532 U.S. 598 (2001), the Supreme Court

“acknowledged that a party benefitting from a settlement agreement … could be a ‘prevailing

party,’ provided the ‘change in the legal relationship of the parties ‘was in some way judicially

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sanctioned.’” John T., 318 F.3d at 556 (quoting Buckhannon, 532 U.S. at 605). The Buckhannon

Court “distinguished between court-approved settlements and private settlements, stating that

‘private settlements do not entail the judicial approval and oversight involved in consent decrees.

And federal jurisdiction to enforce a private contractual settlement will often be lacking[.]”

Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 164 (3d Cir. 2002) (quoting Buckhannon, 532 U.S.

at 604 n.7). The Third Circuit, in evaluating the parties’ agreement in Truesdell under

Buckhannon, found that the stipulated settlement bore the characteristics of a consent decree and

therefore served as a “proper vehicle for rendering one side a prevailing party,” because it: “(1)

contained mandatory language, (2) was entitled ‘Order,’ (3) bore the signature of the District Court

judge, and (4) provided for judicial enforcement.” 290 F.3d at 165.

Prevailing parties to judgments, consent decrees, and enforceable settlement agreements

may be awarded reasonable attorneys’ fees not only for legal work undertaken to obtain prevailing

party status in the first instance, but also for efforts to enforce “the full scope of relief afforded by

the consent decree.” Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546,

558 (1986) (concluding that attorneys’ monitoring efforts can be “as necessary to the attainment

of adequate relief for their client as was all of their earlier work in the courtroom”); People Against

Police Violence v. City of Pittsburgh, 520 F.3d 226, 235 (3d Cir. 2008) (“This Court, like other

Courts of Appeals, allows fees to be awarded for monitoring and enforcing Court orders and

judgments.”); P.J. by & through W.J. v. Connecticut State Bd. of Educ., 931 F.3d 156, 167 (2d Cir.

2019) (holding prevailing party to IDEA settlement entitled to reimbursement for “appropriate

efforts by counsel to safeguard the scope of relief that a consent decree affords”); K.N. v. Passaic

City Bd. of Educ., 2011 WL 5157280 (finding Plaintiffs’ counsel’s post-settlement activities

compensable under the IDEA); P.G. v. Brick Twp. Bd. of Educ., 124 F. Supp. 2d 251, 263-64

6

(D.N.J. 2000) (concluding that “compliance and monitoring activities may be compensated under

the IDEA”); Jacqueline N. v. Sch. Dist. of Philadelphia, No. CV 19-3748, 2020 WL 529890, at *4

(E.D. Pa. Jan. 31, 2020) (holding that “the IDEA authorizes the award of counsel fees to prevailing

parents in an action to enforce the written settlement agreements”).

III. DISCUSSION

A. Plaintiffs’ Entitlement to Attorneys’ Fees

In the present case, the District argues that fee-shifting is not available to Plaintiffs under

the IDEA because the parties’ Agreement constitutes a private settlement and, “even though the

U.S. District Court for the District of New Jersey retained jurisdiction for the purposes of

enforcement, such action does not impose judicial imprimatur necessary to allow Plaintiffs to

achieve prevailing party status.” (Deft. Brief at 12). The District further asserts that, even if the

Agreement is not a private agreement, post-settlement fees are not available to Plaintiffs because

the District’s years-delayed payment of the agreed costs was not “judicially sanctioned,” as the

Court did not formally rule on Plaintiffs’ Motion to Enforce the Settlement Agreement. (Id. at 13).

The Court addresses and rejects each argument in turn.

The District “does not dispute that pursuant to the IDEA, Plaintiffs were the prevailing

party as it related to preceding litigation which led to the Settlement Agreement” whereby

Plaintiffs received “compensatory education in the sum of 1312.5 hours for educational services,

evaluations and other services as set forth in the agreement.” (Id. at 9). Instead, the District argues

that the Court’s actions with regard to the Settlement Agreement did not entail the necessary

“judicial imprimatur” to render the Agreement anything more than a private settlement. The Court

disagrees and finds that the parties’ stipulated settlement together with the Court’s December 21

Order meet the requirements set forth by the Third Circuit in John T. and Truesdell.

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First, unlike in John T., Plaintiffs achieved the successes embodied in the Settlement

Agreement through numerous negotiation sessions before this Court. See 318 F.3d at 560 (finding

that an IEP achieved through “negotiations out of court” was insufficient to confer prevailing party

status). The terms of that Agreement were then incorporated with specificity into the December

21, 2020 Order of the undersigned, which provided that “the Court approves the settlement

memorialized in plaintiffs’ December 21, 2020 submission (ECF No. 119-1) and approves the

compensatory education and attorneys’ fees as set forth therein.” (ECF No. 120). Those settlement

terms contain mandatory language providing that the District “will” and “shall” fulfill certain

obligations. (ECF Nos. 120; 119-1 ¶¶ 1-5); See P.N., 442 F.3 at 853 (noting that terms of an

administrative law judge’s Consent Order contained the requisite mandatory language by stating

that the Board of Education “will do certain things”). Further, the relief was contained in an Order

bearing the signature of the undersigned, and provided for judicial enforcement, making the

“parties’ obligation to comply with the terms of the settlement agreement … part of the order of

dismissal.” Id. (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994)).

Therefore, contrary to the District’s assertion, the attributes of the parties’ stipulated settlement

render the Agreement more akin to a consent decree “enforceable through the supervising court’s

exercise of its contempt powers,”4 than a private settlement enforceable “only through a new action

for breach of contract.” (Deft. Brief at 10-11) (quoting Haden ex rel. Legear v. Reagan, 208 F.3d

4 The Court notes that, pursuant to 28 U.S.C. § 636(e)(4), upon entry of the parties’ Consent

to Magistrate Judge Jurisdiction (ECF No. 118), the undersigned was authorized to “exercise the

civil contempt authority of the district court.” Therefore, that it is the signature of the undersigned,

not a District Judge, affixed to the December 21, 2020 Order is immaterial for this prevailing party

inquiry, as the undersigned had the power to issue civil contempt Orders for the District’s

noncompliance.

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697, 699 (8th Cir. 2000)). Accordingly, the District’s argument that fee-shifting is unavailable

because the settlement at issue was a mere private agreement lacking the power of judicial sanction

is rejected.

Having found that Plaintiffs obtained prevailing party status within the meaning of

Supreme Court and Third Circuit precedent upon entry of the Court’s December 21 Order, the

Court considers the District’s argument that enforcement fees are not available because the District

simply “complied with its obligations under the Settlement Agreement.” (Deft. Brief at 13). As

noted above, prevailing parents under the IDEA may recover for attorneys’ time spent seeking

compliance with and enforcement of settlement agreements. See P.G., 124 F. Supp. 2d at 263

(collecting cases concluding that enforcement and compliance activities are compensable under

IDEA). The Court finds unconvincing the District’s attempt to characterize the post-settlement

proceedings before the undersigned as lacking the requisite “judicial imprimatur” because the

Court did not ultimately issue an Order on Plaintiffs’ Motion to Enforce. It is clear from the record

that the District’s payment was not simply voluntary and that it was instead necessary for Plaintiffs

to file the Motion to Enforce after their counsels’ months-long efforts to resolve the outstanding

payment without judicial intervention had failed. Following the filing of that Motion, the Court

immediately interceded and convened numerous Court conferences thereafter to address the

District’s failure to comply with the Agreement and induce its tardy compliance. (See ECF Nos.

121-130). The history of this dispute leaves no question that only with the Court’s prodding and

follow-up did the District finally do what it had contracted to do more than a year prior. Indeed,

without the Court’s intervention, Plaintiffs still might be awaiting payment of their costs.

That the undersigned resolved Plaintiffs’ application to enforce through Court conferences

rather than issuing an Opinion on the Motion is of no moment. As in People Against Police

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Violence v. City of Pittsburgh, these proceedings “merely allowed plaintiffs to raise their concerns

prior to [renewed] enforcement, a process that reached the same result (resolution of plaintiffs’

claims) with greater judicial efficiency.” 520 F.3d 226, 235 (3d Cir. 2008); see also Johnson v.

City of Tulsa, 489 F.3d 1089, 1108 (10th Cir. 2007) (“[W]e cannot accept the proposition that

attorney fees for postdecree efforts are compensable only if they result in a judicially sanctioned

change in the parties’ legal relationship. The Decree itself was such a change, and attorney fees

incurred for reasonable efforts to enforce that change--that is, protect the fruits of the Decree--are

compensable.”); ACLF v. Dep't of Corr., No. 09-179-SLR-SRF, 2014 U.S. Dist. LEXIS 129975,

*10 (D. Del. Sept. 17, 2014) (“No additional change in the parties’ legal relationship is required

to establish [plaintiffs’] status as a prevailing party.”). Where, as here, “[a]t the end of the

proceedings, plaintiffs had achieved precisely what they sought on an enduring basis,” the Court

finds no reason why they “should be denied fees merely because they participated in a more

efficient, cooperative process.” People Against Police Violence, 520 F.3d at 236.

In sum, through the efforts of their counsel and this Court’s exercise of its retained

jurisdiction to enforce the Agreement, Plaintiffs finally obtained what was owed to them under the

settlement and are, therefore, entitled prevailing party attorneys’ fees arising from their attorneys’

enforcement efforts.

B. Reasonableness of Plaintiffs’ Requested Fees

The Supreme Court has instructed that “[t]he 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.” Hensley, 461 U.S. at 433. The product of that calculation, termed

the “lodestar,” is presumed reasonable. City of Burlington v. Dague, 505 U.S. 557, 562 (1992);

Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The party seeking a fee award must

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submit evidence to support both the hours worked and proposed hourly rate. Hensley, 461 U.S. at

433.

In their opening brief, Plaintiffs sought a total of $36,465.00 in attorneys’ fees, comprised

of 43.5 hours worked by David J. Berney, Esq. billed at an hourly rate of $580.00 and 21.4 hours

worked by Nina Russakoff, Esq. billed at an hourly rate of $525.00. (Pl. Brief at 10). The District

challenges the reasonableness of the requested fees as to both counsels’ proposed hourly rates and

number of hours billed. (Deft. Brief at 14-26). The Court addresses the District’s arguments as to

each, in turn.5

i. Reasonableness of Plaintiffs’ Proposed Hourly Rates

Under the IDEA, as with other federal fee-shifting statutes, a reasonable hourly rate is

calculated according to “rates prevailing in the community in which the action or proceeding

arose[.]” 20 U.S.C. § 1415(i)(3)(C); see P.G., 124 F. Supp. 2d at 261. The prevailing party bears

the burden of demonstrating “the community billing rate charged by attorneys of equivalent skill

and experience performing work of similar complexity.” Washington v. Philadelphia Cnty. Ct. of

Common Pleas, 89 F.3d 1031, 1036 (3d Cir. 1996) (quoting Student Pub. Int. Rsch. Grp. of New

Jersey, Inc. v. AT & T Bell Labs, 842 F.2d 1436, 1450 (3d Cir. 1988)). Generally, this burden is

satisfied through the attorneys’ own affidavits, as well as affidavits of other attorneys in the

relevant legal community “attesting to the range of prevailing rates charged by attorneys in the

market with similar skill and experience.” P.G., 124 F. Supp 2d at 261.

5 In their Reply brief, Plaintiffs’ counsel supplemented the initial billing records submitted

to the Court in support of the fee application, seeking fees for an additional 23.6 hours of attorney

time, which they contend was expended since filing the instant Motion. Counsels’ revised

requested lodestar increased by over $13,000.00 to $49,729.50. (ECF No. 142). The Court

addresses the reasonableness of counsels’ additional claimed hours infra.

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If the prevailing party makes a prima facie showing that the rates requested represent

prevailing market rates, “the party opposing the fee award can rebut the reasonableness of the

proffered hourly rate with record evidence.” L.J. ex rel. V.J. v. Audubon Bd. of Educ., 373 F.

App’x 294, 296 (3d Cir. 2010) (citing Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d

Cir.1997)). If the proposed hourly rates are disputed with evidence in the record, rather than mere

argument, the court must conduct a hearing to determine the reasonable market rates. Id.

In this case, Plaintiffs’ attorneys, David Berney and Nina Russakoff, have furnished sworn

Declarations in support of the reasonableness of their claimed hourly rates, which set forth each

attorney’s qualifications and extensive legal experience. (Pl. Exhs. H, I, ECF No. 132-1).

Plaintiffs further submit the sworn Declarations of five experienced education law practitioners,

stating, inter alia, that the proposed hourly rates are reasonable for attorneys of Mr. Berney’s and

Ms. Russakoff’s respective levels of experience and expertise, and that those rates are within the

range of prevailing rates charged by attorneys of similar skill and experience in both New Jersey

and Philadelphia, where the firm of Plaintiffs’ counsel is located. (See Pl. Exhs. N–R). Plaintiffs

also submitted evidence of a current retainer agreement with a different client at the requested

hourly rates of $580.00 for Mr. Berney and $525.00 for Ms. Russakoff, as well as the 2016 retainer

agreement with Plaintiffs in this action.6 (Pl. Exhs. J, K).

The District opposes Plaintiffs’ requested rates on several grounds. First, the District

contends that Mr. Berney and Ms. Russakoff have not based their proposed billing rates on the

prevailing market rate of this District, but rather that of prevailing rates in Philadelphia, the situs

6 Although the 2016 retainer agreement with Plaintiffs provides for an hourly rate of $495.00

for Mr. Berney, “a reasonable hourly rate should be determined by examination of the prevailing

market rates in the relevant community at the time of the fee petition, not the time the legal services

were performed.” L.J., 373 Fed. Appx. at 296.

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of their law firm. (Deft. Brief at 14-20). Relatedly, the District seems to argue that the

Declarations of the education attorneys submitted by Plaintiffs “are meaningless” because, inter

alia, some of those attorneys practice education law in either or both Pennsylvania and New Jersey

and are therefore not competent to attest to prevailing rates in this State. (See Deft. Brief at 16-

18).

The District is correct that the Third Circuit has adopted a “forum rate” rule for determining

the appropriate community market rate, under which the “‘relevant rate is the prevailing rate in the

forum of the litigation’ unless ‘the special expertise of counsel from a distant district is shown’ or

‘local counsel are unwilling to handle the case.’” A.B. v. Pleasant Valley Sch. Dist., 839 Fed.

Appx. 665, (3d Cir. 2020) (quoting Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694,

705 (3d Cir. 2005)). Plaintiffs do not disagree but assert that the second exception to the forum

rule applies under Honewell, 426 F.3d 694, as the parents were unable to retain counsel in the

forum even after enlisting the services of Volunteer Lawyers for Justice (VLJ) for assistance in

finding a local attorney to take their case. (See Pl. Brief at 14).

The Court, having conducted a searching review of the record, concludes that Plaintiffs

have satisfied the second Honeywell exception. With the instant Motion, Plaintiffs’ counsel

submitted the sworn Declaration of Jessica Limbacher, Esq., a VLJ Staff Attorney at the time

Plaintiffs sought the organization’s assistance. (Pl. Exh. L). Ms. Limbacher confirms that

Plaintiffs initially contacted VLJ, a Newark, New Jersey legal services organization, for

representation by a VLJ attorney. (Limbacher Decl., Pl. Exh. L ¶ 6). When VLJ determined it

could not take Plaintiffs’ case due to a shortage of resources, the organization searched for other

New Jersey attorneys willing to represent Plaintiffs on either a pro bono or contingent fee basis.

(Id. ¶¶ 7-10). The Law Office of David J. Berney “was the only firm that VLJ identified who was

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willing to represent Parents given Parents’ inability to pay for legal services and the type of legal

issues that this case involved.” (Id. ¶ 10). On the record before it, the Court is satisfied that local

counsel were unwilling to take on the instant litigation under the circumstances. As such, Plaintiffs

are “entitled to compensation based on prevailing rates in the community in which [their] attorneys

practice.” Honeywell, 426 F.3d at 699.

In any event, the affidavit evidence submitted by Plaintiffs demonstrate that counsels’

requested rates are within the reasonable range of those charged by special education lawyers of

similar competence and experience in New Jersey, as well. (See Gran Decl., Pl. Exh. N; Reisman

Decl., Pl. Exh. O). In its opposition, the District states that “[m]any parent attorneys in New Jersey

charge their clients an hourly rate of $395-$420,” but fails to provide any evidence in the record

of those contrary rates. “[I]t is not enough merely to contest the claimed hourly rate; rather

[defendant] must submit evidence of a different reasonable hourly rate.” Tenafly Eruv Ass'n, Inc.

v. Borough of Tenafly, 195 F. App’x 93, 98 n.4 (3d Cir. 2006) (emphasis in original). Pointing to

District Court cases of ten years earlier or more in which lower fees were awarded to different

attorneys in different cases is insufficient to rebut the reasonableness of the hourly rates proposed

and does not merit a hearing on prevailing market rates. Id.

Mr. Berney and Ms. Russakoff have submitted evidence of their actual billing rates of

$580.00 and $525.00 per hour, accompanied by five sworn Declarations of experienced education

law practitioners attesting to the reasonableness of the proposed rates not only in the Philadelphia

area, but in New Jersey, as well. Accordingly, the burden shifted to the District to rebut Plaintiffs’

prima facie case as to the reasonability of the proposed rates, which burden the District failed to

carry. Because, in the absence of appropriate record evidence to the contrary, the Court “may not

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exercise its discretion to adjust the requested rate downward,” the Court approves the proffered

hourly rates as reasonable. Washington, 89 F.2d at 1036.

ii. Reasonable Hours

The Court, having arrived at the hourly rates to be applied in its lodestar calculation, must

determine whether the number of hours expended on the post-settlement litigation was reasonable.

Hensley, 46 U.S. at 433. A prevailing party “is not entitled to compensation for all the time its

attorneys spent working on the case; rather, a court awarding fees must decide whether the hours

set out were reasonably expended for each of the particular purposes described and then exclude

those that are excessive, redundant, or otherwise unnecessary.” Honeywell, 426 F.3d at 711

(citations omitted). This task requires the Court to examine the record to determine that the hours

for which counsel seek fees are not “unreasonable for the work performed.” Washington, 89 F.3d

at 1037. “Compensable activities include the preparation of filing the lawsuit, background

research, productive attorney discussions and strategy sessions, negotiations, routine activities

such as making telephone calls and reading mail related to the case, monitoring and enforcing a

favorable judgment, and travel among other things.” T.B., 2012 U.S. Dist. LEXIS 44848 at *15-

17 (citing City of Riverside v. Rivera, 477 U.S. 561, 573 n.6, 106 S. Ct. 2686, 91 L. Ed. 2d 466

(1986)). Counsel may further seek fees for time spent drafting and litigating a fee application.

Planned Parenthood v. Attorney General of the State of N.J., 297 F.3d 253, 268 (3d Cir. 2002).

In their opening brief, Plaintiffs sought attorneys’ fees for 43.5 hours expended by Mr.

Berney between January 18, 2021 and November 28, 2022 and 21.4 hours expended by Ms.

Russakoff between May 27, 2022 and November 28, 2022. (Pl. Brief at 10). The District contends

that the hours claimed are excessive, unreasonable, and must be reduced. (Deft. Brief at 21-25).

Initially, the Court notes that, as discussed above, the evaluation costs owed by the District did not

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become due to Plaintiffs until April 17, 2021. It therefore did not become necessary for Plaintiffs’

counsel to engage in compensable enforcement efforts until that date, when the District failed to

comply with its agreed obligation. Accordingly, the Court will exercise its discretion to reduce

Mr. Berney’s billed time by .7 hours, valued at $407.00, for work performed prior to the April 17,

2021 breach. (See Billing Record of Berney, Pl. Exh. H).

The District further asserts with that the hours Plaintiffs’ attorneys expended on motion

drafting is excessive and unreasonable in light of their extensive experience litigating special

education cases. (Deft. Brief 24-25). Mr. Berney and Ms. Russakoff seek fees for a total of 29

hours expended on their opening brief. (See Pl. Reply, ECF No. 13 at 13). As demonstrated by

the Court’s lengthy discussion and analysis above, the Motion presented a complex question of

the District’s liability to Plaintiffs for counsel fees accrued in enforcement given the procedural

posture of the action. The Court thus finds the attorneys’ time expended on the moving brief to be

reasonable. The Court does find, though, that counsels’ additional time claimed for work on the

Reply is unreasonable and excessive. (See Pl. Reply at 14-15). Plaintiffs’ revised total fee request,

which increased the proposed lodestar from $36,465.00 to $49,729.50, was raised in their Reply

brief. (Id.). Accordingly, the District did not have occasion to specifically object to the billing

entries comprising that new sum. Though the Court may only reduce a fee award in response to

objections made by the opposing party, the District did specifically challenge the amount of time

billed for counsels’ motion work in its earlier opposition brief. Thus, “[t]his is not a situation in

which the Board has failed to raise objections to Plaintiffs’ fee application.” P.N., 2007 WL

1186552, at *6. “Once the adverse party raises objections to the fee request, the ... court has a

great deal of discretion to adjust the fee award in light of those objections.” Rosner v. Faloni L.

Grp., LLC, No. 20-CV-10279-KM-ESK, 2021 WL 933371, at *2 (D.N.J. Feb. 8, 2021) (quoting

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Rode, 892 F.2d at 1183). Having reviewed Plaintiffs’ supplemental billing records and having

found that some charges are indeed unreasonable and excessive given counsels’ expertise and

experience with regard to IDEA motion practice, the Court exercises its discretion to reduce the

additional fees sought for time expended on the Reply, as set forth below.

Mr. Berney’s supplemental time sheet represents that he expended 16.8 billable hours

reviewing the District’s opposition to the instant Motion and producing a Reply brief. (Pl. Reply,

Exh. J, ECF No. 142-10). Ms. Russakoff submits bills for 7.1 hours expended on Reply-related

activities. (Id.). Together, counsel therefore seek fees for 23.9 hours of work on Plaintiffs’ Reply,

nearly as much time as that billed for the opening brief of significantly greater complexity. The

Court finds this time excessive for such experienced counsel and determines that these activities

should reasonably have been completed within 10 hours by Mr. Berney and 4 hours by Ms.

Russakoff. See Bell v. United Princeton Properties, Inc., 884 F.2d 713, 721 (3d Cir. 1989) (noting

that, “in setting the amount of any reduction, the court will inevitably be required to engage in a

fair amount of ‘judgment calling’ based upon its experience with the case and its general

experience as to how much time a case requires.”).

The Court will further reduce the fees sought by counsel for their work on July 21, 2022,

representing 2.6 hours billed by Ms. Russakoff for time spent drafting, revising, or filing a “letter

reply to District’s response to Motoin (sic) to Enforce,” and 1.4 hours billed by Mr. Berney for his

time spent corresponding with Ms. Russakoff about the responsive letter and revising same. (See

Pl. Exhs. H, I). The Court has reviewed counsel’s July 21, 2022 letter of less than two pages and

finds that the claimed total of four hours expended is excessive in light of counsels’ experience

and the fact that the letter was comprised of simple background of the case and a request for leave

to seek attorneys’ fees. (See ECF No. 126). The Court finds that this activity warrants .5 hours of

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each attorney’s time and will reduce the fee award as such. Incorporating the reductions detailed

herein, Plaintiffs’ lodestar is $42,126.50.

Turning to the District’s remaining contentions, it is argued that certain entries on counsels’

billing records are not described with sufficient specificity to allow the Court to determine whether

the hours claimed are unreasonable. (Id. at 21-23). The Court does not agree. In support of this

fee application, Plaintiffs’ counsel submitted detailed billing records itemizing the attorneys’

activities and time billed for such work. (See Billing Records of Berney and Russakoff, Pl. Exhs.

H, I). The Third Circuit has explained that the “documentation requirements for time charged are

not exacting.” Tenafly, 195 Fed. App’x at 100. Having reviewed line-by-line the billing records

at issue here, the Court finds that the entries are sufficiently clear to understand the tasks to which

Mr. Berney and Ms. Russakoff devoted their time. Accordingly, that argument by the District is

rejected.

The Court is likewise not persuaded by the District’s argument that counsels’ claimed hours

should be reduced on the basis that they have billed for time spent on “unnecessary interoffice

emails and conferences.” (Deft. Br. at 24). As noted above, prevailing parties may be

compensated for “productive attorney discussions” and “reading mail related to the case.” T.B.

2012 U.S. Dist. LEXIS 44848 at *15-17. Moreover, the suggestion that counsel may not be

awarded fees for participating in the Court conferences convened by the undersigned to address

the District’s failure to comply with the Settlement Agreement will not be entertained.

Finally, the District contends that Plaintiffs have wrongfully “double billed” by seeking

fees for the time expended by both Mr. Berney and Ms. Russakoff. The Court, having reviewed

and compared the billing records of the attorneys, holds reasonable and non-duplicative the

charges listed, as Mr. Berney’s supervising and revising the work of Ms. Russakoff “is not double-

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billing because, logically, supervision of work is a task separate from the work itself.” Hilburn v.

New Jersey Dep’t of Corr., No. CIV. 7-6064, 2012 WL 3864951, at *4 (D.N.J. Sept. 5, 2012).

IV. CONCLUSION

For the foregoing reasons, Plaintiffs’ application for attorneys’ fees is GRANTED,

excepting the reductions of time as set forth herein. Plaintiffs are entitled to recover $42,126.50

in attorneys’ fees. Plaintiffs shall submit a proposed Order in accordance with this Opinion.

s/ Leda Dunn Wettre

Hon. Leda Dunn Wettre

United States Magistrate Judge

Dated: April 26, 2023

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