# K.S. v. UPPER DARBY SCHOOL DISTRICT

> District Court, E.D. Pennsylvania · September 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10401751

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10401751

## How later opinions describe it (automated extraction)

- finding the district court did not abuse its discretion by disallowing attorney’s time spent on administrative tasks and striking nearly all of the paralegal’s hours

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

K.S. : CIVIL ACTION
INDIVIDUALLY AND ON BEHALF OF M.S., :
A MINOR :
:
:
v. :
:
UPPER DARBY SCHOOL DISTRICT : NO. 20-4470

MEMORANDUM AND ORDER

ELIZABETH T. HEY, U.S.M.J. September 20, 2021

Plaintiff K.S., individually and on behalf of M.S., a minor (“Plaintiff”), filed a due
process complaint against Defendant, Upper Darby School District (“Defendant” or the
“District”), seeking compensatory education and an appropriate program and placement
for M.S. pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400
et seq. (“IDEA”). After receiving a partly favorable decision, Plaintiff commenced this
federal action. Doc. 1. Presently before the court is Plaintiff’s motion for attorney fees
and costs. Doc. 21. For the reasons that follow, the motion will be granted in part and
denied in part.
I. FACTS AND PROCEDURAL BACKGROUND1
On February 4, 2020, Plaintiff filed a due process complaint with the Pennsylvania
Office of Dispute Resolution (“ODR”), alleging that the District’s programming and

1All pinpoint citations to court filings are to the court’s ECF pagination. The facts
and procedural background are gleaned from the parties’ briefs and declarations attached
thereto. See Declaration of Nicole Reimann, attached to motion at Doc. 21-2 (“Reimann
Decl.”); Declaration by Attorney Karl A. Romberger, Jr., attached to response at Exh. B
placement for M.S. for the 2018-2019 and 2019-2020 school years did not comply with
the IDEA’s guarantee of Free Appropriate Public Education (“FAPE”) because it failed

to include a specific reading program in M.S.’s Individualized Education Placement
(“IEP”). See Due Process Complaint at 7, attached to motion at Exh. B (Doc. 21-5).
Plaintiff further argued that M.S. was entitled to placement at a private school, The
Concept School, including related services and transportation. Id.
A Pennsylvania Special Education Due Process Hearing Officer (“Hearing
Officer”) conducted five remote hearings (due to the COVID-19 pandemic), at which the

parties presented twelve witnesses and seventy-seven exhibits. Reimann Decl. ¶ 18. The
parties then submitted lengthy proposed findings of fact and closings. See Parents’
Findings of Fact and Closing Memorandum of Law, attached to motion at Exh. D (Doc.
21-7); Upper Darby School District’s Closing Statement, attached to motion at Exh. E
(Doc. 21-8). In his June 15, 2020 Final Decision, the Hearing Officer found that the

District failed to provide M.S. with a FAPE for part of the 2018-2019 academic year,
beginning on February 15, 2019, and failed to provide M.S. with a FAPE for the 2019-
2020 school year. Hearing Officer Final Decision and Order at 34-36, attached to motion
at Exh. F. (Doc. 21-9) (“Final Decision”). The Hearing Officer awarded Plaintiff 4.66
hours (two hours less than a full school day) per day that M.S. attended school from

February 15 through December 16, 2019, and two hours of compensatory education per

(Doc. 24-2) (“Romberger Decl.”); Declaration of Nicole Reimann, attached to reply at
Doc. 27-1 (“Suppl. Reimann Decl.”). The facts and procedural history are not disputed,
except as noted.
school day from December 17, 2019, through the date of the Final Decision, excluding
days the District did not provide in-person instruction as a result of the COVID-19
pandemic. Id. at 34-36, 39.2 The Hearing Officer further found that Plaintiff had not

substantiated a claim for prospective placement in a private school, and instead sua
sponte ordered a comprehensive evaluation of M.S. to be followed by an IEP meeting to
be convened by the parties. Id. at 3, 36-39.
Plaintiff appealed the Hearing Officer’s denial of prospective placement by
commencing this federal action on September 11, 2020, see Doc. 1, claiming that the

Hearing Officer erred in failing to order prospective placement at Plaintiff’s selected
placement (Count I) and attorney fees and costs (Count II). Plaintiff also filed a second
due process complaint with the ODR on October 27, 2020, seeking compensatory

2The parties disagree as to the total number of compensatory hours awarded.
According to Defendant, the Hearing Officer awarded 611.48 hours of compensatory
education, calculated as 4.66 hours per day through spring 2019 (78 days) (4.66 x 78 =
363.48 hours) plus two hours per day for the 2019-2020 school year through the COVID-
19 shutdown (124 days) (2 x 124 = 248 hours). Doc. 24 at 16 n.9; Romberger Decl. ¶ 8.
According to Plaintiff, the Hearing Officer’s award constituted more than 800 hours of
compensatory education, and Plaintiff offers to provide evidence in camera to support
their position. Doc. 21-1 at 4; Doc. 27 at 6 & n.2. Although the Final Decision does not
state a total hour figure -- and although the parties do not provide evidence of the exact
number of days that M.S. attended school or that school was in session prior to the
COVID-19 lockdown -- an approximate number of hours is determinable and favors
Plaintiff’s figure. The total number of school days contained in Defendant’s calculation
appears to be accurate or a close approximation. However, Defendant’s calculation of
611.48 hours is erroneous insofar as it includes two hours per day for the entire 2019-
2020 school year, whereas the Hearing Officer awarded 4.66 hours per day through
December 16, 2019 -- more than three months into the 2019-2020 school year -- and two
hours thereafter. If the school days for fall 2019 are calculated at 4.66 hours per school
day rather than two hours per school day, a figure closer to 800 hours is obtained. The
parties’ discrepancy does not impact consideration of the present motion.
education and an order directing the District to convene an IEP meeting and to provide
appropriate programming and placement for M.S. See Due Process Complaint, attached

to motion at Exh. I (Doc. 21-12). The parties subsequently resolved both Count I of the
present action as well as the second due process complaint, including resolution of the
prospective placement issue, leaving only Count II relating to attorney fees and costs.
See Doc. 21-1 at 5; Doc. 24 at 7.
On June 11, 2021, Plaintiff filed the present motion seeking $119,543.50,
consisting of $113,126.50 in attorney fees through February 2021, plus $6,017.00 in

attorney fees through June 9, 2020, and $400.00 in costs, as the party which “prevailed
on the primary issues in the case.” Doc. 21-1 at 3, 11. Defendant responded to the
motion challenging the extent to which Plaintiff was the prevailing party as well as the
reasonableness of the fees sought. Doc. 24. Plaintiff filed a reply, seeking an additional
$12,199.50 in attorney fees after June 9, 2011, and agreeing to certain reductions. Doc.

27.3
II. LEGAL STANDARDS4
Where, as here, a plaintiff is entitled to recover attorney fees and costs, the court
must determine the reasonableness of both the attorneys’ hourly rates and the work

3The parties have consented to magistrate judge jurisdiction. Docs. 15, 17; see 28
U.S.C. § 363(c).
4Under the “American Rule,” the “prevailing party is ordinarily not entitled to
collect a reasonable attorney’s fee from the loser.” Aleyska Pipeline Serv. Co. v.
Wilderness Soc., 421 U.S. 240, 247 (1975). Exceptions to the American Rule apply
under certain statutes or if the parties have elected contractually to allow for the recovery
of attorney fees. See Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 252-53
performed. To determine a reasonable hourly rate, courts apply a burden-shifting
analysis. See Evans v. Port Auth., 273 F.3d 346, 361 (3d Cir. 2001). First, a plaintiff

bears the burden of establishing “what constitutes a reasonable market rate for the
essential character and complexity of the legal services rendered.” Smith v. Phila. Hous.
Auth., 107 F.3d 223, 225 (3d Cir. 1997). A reasonable market rate is “calculated
according to the prevailing market rates in the relevant community.” Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (citing Blum v. Stenson, 465 U.S. 886,
895 (1984)). The court “should assess the experience and skill of the prevailing

party’s attorneys and compare their rates to the rates prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and reputation.”
Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001) (quoting Rode, 892 F.2d at
1183). Plaintiff can meet this standard through “satisfactory evidence – in addition to
the attorney's own affidavits.” Blum, 465 U.S. at 896 n.11. The court may also consider

the complexity of the case, the quality of the attorney work product, and its perception of
the attorney’s skill and experience. See, e.g., Mantz v. Steven Singer Jewelers, 100 F.
App’x 78, 81-82 (3d Cir. 2004) (requested hourly rate properly reduced based on
“relative simplicity of [the] case, its barely successful outcome . . . and [counsel’s] skill

(2010) (American Rule applies and litigants pay their own fees “unless a statute or
contract provides otherwise”). Here, attorney fees are authorized by the IDEA, which
provides that “[i]n any action or proceeding brought under this section, 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. § 415(i)(3)(B)(i)(I). Thus,
the American Rule does not apply.
as observed by this Court at trial and in the pleadings he has submitted”); Bell v. United
Princeton Props., Inc., 884 F.2d 713, 719 (3d Cir. 1989) (court may “reduce requested

fees with respect to matters within the judge’s personal knowledge”).
Once a plaintiff has established its prima facie case, the defendant may contest the
reasonableness of the rate with “appropriate record evidence,” Evans, 273 F.3d at 361,
and the court cannot “decrease a fee award based on factors not raised at all by the
adverse party.” Bell, 884 F.2d at 720. Once the defendant raises objections to the fee
request, the district court has wide discretion to adjust the fee award in light of those

objections. Rode, 892 F.2d at 1183.
To determine the reasonableness of the fees sought, “[t]he most useful starting
point . . . is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (U.S. 1983). This
calculation results in the “lodestar,” which can be adjusted “downward if [it] is not

reasonable in light of the results obtained.” Rode, 892 F.2d at 1183 (citing Hensley, 461
U.S. at 433); see also Clemens v. New York Cent. Mut. Fire Ins. Co., 903 F.3d 396, 400
(3d Cir. 2018) (under lodestar method, courts “have a positive and affirmative function in
the fee fixing process, nor merely a passive role”) (quoting Maldonado, 256 F.3d at 184).
Hours are not reasonably expended if they are excessive, redundant, or otherwise

unnecessary, and the court also can deduct hours when the fee petition inadequately
documents the hours claimed. Hensley, 461 U.S. at 433; Clemens, 903 F.3d at 400.
III. DISCUSSION
A. The Rates Billed by Plaintiff’s Attorneys are Reasonable

I first address whether the rates sought by Plaintiff’s counsel are reasonable, which
is “calculated according to the prevailing market rates in the relevant community.” Rode,
892 F.2d at 1183. For Philadelphia, “[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 . . . to be a fair reflection of the prevailing market rates. . .
.’” Maldonado, 256 F.3d at 187 (quoting Rainey v. Phila. Hous. Auth., 832 F.Supp. 127,

129 (E.D. Pa. 1993); see also United States ex rel. Palmer v. C&D Techs., Inc., 897 F.3d
128, 132-33 (3d Cir. 2018).
The current CLS Fee Schedule provides for following ranges of rates, in relevant
part:
Attorneys more than 25 years’ experience $650 - $700
Attorneys 21-25 years’ experience $550 - $640
Attorneys less than two years’ experience $200 - $220

https://clsphila.orglabour-comunity-legal-services/attorney-fees/ (last visited Sept. 13,
2021); see also Doc. 21-1 at 10. Plaintiff’s requested hourly rates for attorneys Nicole
Reimann, Jennifer Nestle, and Jeffrey S. Basch, all fall within the CLS rates:
Ms. Reimann 25+ years’ experience $425
Ms. Nestle 21-25 years’ experience $425
Mr. Basch less than two years’ experience $220

Doc. 21-1 at 10; see also Reimann Decl. ¶¶ 30-38.
Plaintiff provides declarations from attorneys Dennis R. Suplee, a practicing
attorney since 1967 and former law partner of Ms. Reimann, and Judith Gran, a law
partner with more than thirty-five years’ experience as a disability rights litigator,
addressing the skills and experience of Plaintiff’s counsel and confirming that the fees

sought are reasonable. See Declaration of Dennis R. Suplee, attached to motion at Doc.
21-13 ¶¶ 4, 12-13; Declaration of Judith Gran, attached to motion at Doc. 21-14 ¶¶ 4, 15-
19.
Defendants do not contest the reasonableness of these rates in any way, nor do
they provide affidavits, expert opinion, or case law to support a finding that the rates are
unreasonable or to suggest alternative proposed rates. Instead, Defendants argue that this

matter was a “garden-variety” due process case, Doc. 24 at 5, that Plaintiff recovered less
than half of the relief requested, id. at 5, 16, and that the itemized billing is excessive,
redundant, vague, and/or unnecessary. Id. at 10. These arguments are not relevant to the
reasonableness of the rates charged.
The rates billed by Plaintiff’s counsel are at the lower end or below the rates

reflected in the CLS Fee Schedule deemed to be a fair reflection of the prevailing market
rates for comparable legal services in Philadelphia. Accordingly, I find that the rates are
reasonable.
B. Reasonableness of Itemized Fees
As previously noted, Plaintiff’s motion seeks $119,143.50 in attorney fees and

$400.00 in costs, Doc. 21-1 at 11; Fee Statements, attached to motion at Exhs. A-1 & A-2
(Docs. 21-3 & 21-4) (“Fee Statements”), and the reply requests an additional $12,199.50
in fees. Doc. 27 at 4; Fee Statement, attached to reply at Exh. A (Doc. 27-2) (“Suppl. Fee
Statement”).5 More specifically, Plaintiff seeks $113,526.50 in attorney fees for work
performed through February 201, broken down as follows:

Ms. Reimann $425 235.6 hrs. $100,130.00
Ms. Nestle $425 12.8 hrs. $ 5,440.00
Mr. Basch $220 26.4 hrs. $ 5,808.00
Ms. Donovan6 $135 3.6 hrs. $ 486.00
Legal Assistant $125 10.1 hrs. $ 1,262.50

Totals 288.5 hrs. $113,126.50 fees

Doc. 21-1 at 11; Doc. 21-3 at Exh. A-1. In addition, Plaintiff seeks $6,017.00 in attorney
fees from March through June 9, 2021, most of which was for work performed in
connection with the fee petition, broken down as follows:
Ms. Reimann $425 13.4 $ 5,695.00
Mr. Basch $220 1.4 $ 308.00

Totals 14.8 hrs. $ 6,003.007

Doc. 21-1 at 11; Doc. 21-3 at Exh. A-2. Finally, Plaintiff seeks an additional $12,199.50
for work performed from June 10 through August 12, 2021, broken down as follows:

5The sum of these two figures, and thus the total sum sought by Plaintiff, is
$131,343.00.

6Ms. Donovan is identified as “a masters’ level educational consultant.” Reimann
Decl. ¶¶ 30, 39. Defendants do not contest the reasonableness of Ms. Donovan’s rate, or
that of Plaintiff’s counsel’s otherwise unidentified “Legal Assistant.”
7Plaintiff’s request $322.00 for Mr. Basch’s 1.4 hours of work, which assumes an
hourly rate of $230.00. See Doc. 21-4. Because Plaintiff has not provided support for
Mr. Basch’s increased rate, I will use the rate of $220.00 set forth in Plaintiff’s motion
and which I have approved. Thus, I consider Plaintiff to request $308.00 ($220.00 x 1.4)
for Mr. Basch’s work, for a total sum of $6,003.00.
Ms. Reimann $425 24.2 $ 10,285.00
Mr. Basch $220 7.4 $ 1,628.00
L.R.8 $125 1.7 $ 212.50

Totals 33.3 hrs. $ 12,125.509

Doc. 27 at 4; Suppl. Reimann Dec. ¶ 29 & Exh. A (Doc. 27-2). For purposes of further
discussion, the amount Plaintiff seeks for fees totals $131,255.00 ($113,126.50 +
$6,0003.00 + $12,125.50).
In addition to the lodestar reduction, Defendant argues that the fees sought by
Plaintiff should be reduced because certain itemized entries “reflect ‘work’ that is
varyingly excessive, redundant, vague, or unnecessary,” Doc. 24 at 9, 10, and because
block billing “is an overarching concern.” Id. at 12. As noted, Defendant supports its
position with a declaration by Mr. Romberger, and the arguments contained in the
Romberger Decl. are repeated in Defendant’s brief.10

8Plaintiff does not identify L.R.

9The reply actually requests $1,702.00 for Mr. Basch’s work, at an hourly rate of
$230.00. However, as previously explained, Mr. Basch’s amount billed is calculated
using an hourly rate of $220.00. Therefore, I consider Plaintiff to request $1,628.00
($220.00 x. 7.4) for Mr. Basch’s work.
10Mr. Romberger attached the Fee Statements as an exhibit to his Declaration, see
Romberg Decl. at 12-18, with numerous entries marked as follows: “X” for entries
relating to IEP Team meeting attendance; “P” for entries relating to administrative
hearing preparation; “H” for entries relating to prosecuting the administrative hearing;
“C” for entries relating to the administrative written closing argument; “A” for entries
relating to the federal court appeal; “L” for entries relating to the unsuccessful
administrative prospective placement claim; “5” for entries relating to the five-day
disclosures; “D” for entries relating to Plaintiff’s demand; “B” for block billing entries;
and “Ad” for administrative tasks. Id. ¶ 14. Plaintiff does not contest the accuracy of
As for block billing,11 Defendant concedes that it is permissible, see Doc. 24 at 11
n.7; Romberger Decl. ¶ 25, and courts in this circuit have upheld block billing where the

listed activities reasonably correspond to the number of hours billed. United States v.
NCH Corp., No. 98-5268, 2010 WL 3703756, at *4 (D.N.J. Sep. 10, 2010) (“In [the
Third] Circuit, ‘block billing is a common practice which itself saves time in that the
attorney summarizes activities rather than detailing every task’ and such billing will be
upheld as reasonable if the listed activities reasonably correspond to the number of hours
billed.”) (quoting United States ex rel. Doe v. Pa. Blue Shield, 54 F.Supp.2d 410, 415

(M.D. Pa. 1999)); see also id. (“specificity should only be required to the extent
necessary for the court ‘to determine if the hours claims are unreasonable for the work
performed’”) (quoting Rode, 892 F.2d at 1190). While an entire entry may be excluded if
it contains a substantial number of vague entries, the more appropriate approach is to
examine the entire block and determine whether the hours reasonably correlate to all of

the activities performed. Id. Here, Defendant does not argue that the entries are vague or
that the listed activities do not reasonably correspond to the number of hours billed, nor
does the court find a basis to find the block entries vague or unreasonable. Therefore, I

Mr. Romberger’s designations, but rather contests Defendant’s proposed fee reductions
based on those designations.
11Block billing is a “time-keeping method by which each lawyer and legal
assistant enters the total time daily spent working on a case, rather than itemizing the time
expended on specific tasks.” Welch v. Metro. Life Ins., 480 F.3d 942, 945 n.2 (9th Cir.
2007) (quoting Harolds Stores, Inc. v. Dillard Dep’t Stores, 82 F.3d 1533, 1554 n.15
(10th Cir. 1996)).
decline to reduce the fees sought by eliminating entire billing blocks and will instead
reduce the fees more selectively, where appropriate.

I will now review the issues enumerated by Defendant, identifying those fees
itemized on the Fee Statements that should be reduced or eliminated.
1. IEP Team meeting
Defendant first argues that Ms. Reimann billed for attending an IEP team meeting,
which is statutorily impermissible. Doc. 24 at 10 (citing 20 U.S.C. § 415(i)(3)(D)(ii));
Romberger Decl. ¶ 15 (same). Accordingly, Defendant seeks to remove $2,890.00 from

the fee amount for time billed on October 7 and 8, 2019, and September 10, 2020,
because those entries include billing for attending IEP meetings.
Ms. Reimann billed 1.2 hours on October 7, 2019, and the billing entry reads,
“Prepare for IEP meeting; telecon with Parent re current concerns.” Fee Statements
(entry dated 10/7/19). Plaintiff argues that this time did not involve attendance at an IEP

meeting, and was “substantive work that would have been performed regardless of a
meeting.” Doc. 27 at 14; Suppl. Reimann Decl. ¶ 19. Defendant asserts that “if billing
for attendance [at an IEP meting] is not permissible, it follows that billing for preparation
for attendance is also not permissible.” Doc. 24 at 10 n.6. Defendant provides no
support for the assertion, and in any event, and to the extent the preparation involves

substantive work rather than travel time or administrative preparation, as here, it is
properly billable. As for October 8, 2019, Plaintiff concedes that two hours of Ms.
Reimann’s time totaling $850.00 ($425.00 x 2) should be deducted for traveling to
attending an IEP meeting. Doc. 27 at 15; Suppl. Reimann Decl. ¶ 21. Finally, Plaintiff
argues that the September 10, 2020 IEP meeting was ordered by the Hearing Officer, see
Doc. 21-9 at 36-39, and is therefore fully compensable. Doc. 27 at 15; Suppl. Reimann

Decl. ¶ 20. Plaintiff is correct. See 20 U.S.C. § 415(i)(3)(D)(ii)) (“Attorney’s fees may
not be awarded relating to any meeting of the IEP Team unless such meeting is convened
as a result of an administrative proceeding or judicial action. . . .”) (emphasis added).
Accordingly, the amount billed to IEP team meetings will be reduced by $850.00.
2. Preparation for Administrative Hearing
Defendant next argues that Ms. Reimann spent at least 98.1 hours preparing for

the administrative hearing in this matter, and that block billing makes specific parsing of
the preparation time impossible. Doc. 24 at 10; Romberger Decl. ¶ 16. Plaintiff responds
that the time spent in preparation is reasonable, noting that the five remote administrative
hearings totaled 44.4 hours. Doc. 27 at 11-12; Suppl. Reimann Decl. ¶ 14.
In support of its contention, Defendant avers that a “rule of thumb is the ratio 2:1

for experienced counsel” and that the ratio for Plaintiff’s counsel is “too high, somewhat
more than 2:1.” Romberger Decl. ¶ 18 (citing Elizabeth S. v. Sch. Dist. Of Phila., NO.
11-1570, 2012 WL 2469547, at *3 (E.D. Pa. June 28, 2012)). Defendant suggests that
Plaintiff’s fees in this regard should be reduced by 10% “to align closer to the ratio.” Id.
Plaintiff concedes that the ratio 98.1:44.4 (98.1 hours billed for 44.4 hours of

administration hearings) is “somewhat more than 2:1.” Doc. 27 at 12. However, Plaintiff
correctly notes that Defendant has failed to identify grounds for reducing the fees sought
other than strict application of a 2:1 ratio that Defendant concedes is merely a “rule of
thumb.” In any event, the hours billed and associated with the administrative hearing
yields a ratio of approximately 2.2:1, which is neither excessive nor unreasonable.
Therefore, no reduction is warranted.

3. Administrative Hearing
In a related argument, Mr. Romberger avers that the total hearing time is actually
less than 44.4 hours, because that number comes from block-billed entries that include
other activities not separable from prosecuting the administrative hearing. Doc. 24 at 10;
Romberger Decl. ¶ 15. I will not eliminate block-billing entries for the reasons
previously explained, and Defendant provides no evidence regarding the precise duration

of the five remote administrative hearings. Therefore, no reduction is warranted.
4. Closing Argument
Defendant next argues that the time billed for preparation of Plaintiff’s closing
argument was excessive. Doc. 24 at 11; Romberger Decl. ¶ 19. Plaintiff responds that
the time spent is reasonable, and that Defendant’s argument is “disingenuous and wrong”

because Defendant spent considerably more time than Plaintiff did on their closing
argument. Doc. 27 at 11; Suppl. Reimann Decl. ¶ 12.12
Evidence of fees and expenditures made by other parties may be relevant to the
issue of the reasonableness of fees sought by the prevailing party. For example, in I.W.
the court stated:

I find it persuasive that Defendant’s total number of hours
spent on inter-firm communications more than doubles the
hours spent by Plaintiffs’ counsel on inter-firm
communications. The hours spent by Plaintiffs’ counsel on

12Plaintiff received Defendant’s billing records in discovery. See Suppl. Reimann
Decl. ¶ 11.
these same tasks are not unreasonable or excessive in light of
the District’s own billing. See E.C. [&] C.O. v Sch. Dist. Of
Phila.], 91 F. Supp. 3d [598] at 609 [E.D. Pa. 2015] (fact that
counsel for the School District expended as many or more
hours on the same tasks as plaintiffs’ counsel “supports the
reasonableness of the hours expended by counsel for Plaintiff
Parents.”).

2016 WL 14748, at *14.
Here, Plaintiff’s counsel spent 36.2 hours ($14,503.50) to write their closing
argument at the administrative hearing, which Defendant argues should be reduced by
half. Doc. 24 at 10; Romberger Decl. at ¶ 19. However, defense counsel’s own billing
records show that counsel spent 73.6 hours on their closing argument -- a sum which is
nearly twice that of Plaintiff. Doc. 27 at 11; Suppl. Reimann Decl. ¶ 12; Fox Rothschild
Billing Statements, attached to reply at Exh. B (Doc. 27-3) (“Rothschild Billing
Statements”), at 46, 49-53 (entries marked “C”). Although the hours billed by defense
counsel for the same activities is not determinative -- indeed, it may be that both sides
excessively billed for their services in this regard -- the fact that defense counsel spent
considerably more time than Plaintiff’s counsel is powerful evidence that the amount
billed by Plaintiff’s counsel is not excessive. See E.C. & C.O., 91 F.Supp.3d at 609. In
light of the length of the hearing and the quantity of evidence, I conclude no reduction is
warranted.
5. Appeal and Federal Complaint
Plaintiff’s counsel spent 23 hours preparing the Complaint in this court, which
Defendant characterizes as “excessive” because it was “a straightforward appeal of the
hearing officer’s decision.” Doc. 24 at 11; Romberger Decl. ¶ 20. However, as Plaintiff
points out, Doc. 27 at 11, Defendant spent at least 29.2 hours answering this
“straightforward” Complaint, which strongly suggests that the time billed by Plaintiff’s

counsel was reasonable. Suppl. Reimann Decl. ¶ 13; Rothschild Billing Statements, Doc.
27-3 at 63-64, 68-72, 75 (entries designated “A”). I agree that no reduction is warranted.
See E.C. & C.O., 91 F.Supp.3d at 609.
6. Demand
Defendant next objects to the 7.7 combined hours that Ms. Reimann (6.9 hours)
and Mr. Basch (.8 hours) spent on October 9 and 16, 2019, preparing the demand letter.

Doc. 24 at 11; Romberger Decl. ¶ 21. Plaintiff responds that the time spent is reasonable,
noting that Mr. Romberger does not know the underlying facts of the case “and
apparently had not reviewed the demand letter.” Doc. 27 at 12; Suppl. Reimann Decl.
¶ 15. Plaintiff also notes that Defendant never responded to the demand. Id.
Without opining as to Mr. Romberger’s knowledge of the case or defense

counsel’s failure to respond, I agree with Defendant that 7.7 hours billed for a 5-page
letter demand is excessive. I will reduce this sum by half, or $929.00 (half of $1,518.00
billed by Ms. Reimann, plus half of $340.00 billed by Mr. Basch).
7. Prospective Placement Claim
Defendant next argues that at least 12.2 hours ($7,270.00) were billed specifically

as to the claim for prospective placement, and that this sum should be entirely denied
because the claim failed. Doc. 24 at 12; Romberger Decl. ¶ 22. Plaintiff responds that
Ms. Reimann’s billing entry identified by Defendant for April 6, 2020 (7.2 hours),
mentions the private school along with other items, but that her entry for March 14, 2020,
was for “Work on Parent outline; work on logistics hearing and Day 1 witnesses,” and
therefore does not involve the private school. Doc. 27 at 14. I agree that no reduction is

warranted for the March 14, 2020 entry, and because it cannot be determined how much
of the time billed for April 6, 2020 pertained to the private school, I will reduce that entry
by one hour ($425.00).13 Plaintiff concedes that three additional entries identified by
Defendant (December 9, 2019, and January 16 and 29, 2020) concern the private school
and should be excluded for an additional reduction of 1.1 hours for Ms. Reimann
($467.50) and .1 for Mr. Basch ($22.00), for a total reduction of $914.50. Id.; Suppl.

Reimann Decl. ¶ 22.
8. Substantive Review of Educational Records
Defendant next argues that Ms. Reimann’s billing of 6.7 hours ($2,847.50) for
“[s]ubstantive review of 2166 pages of educational records” is improper because the time
should have been billed by Mr. Basch at his lower rate. Doc. 24 at 12; Romberger Decl.

¶ 23. Plaintiff responds that the time spent is reasonable. Doc. 27 at 12-13; Suppl.
Reimann Decl. ¶ 16.
Plaintiff provides a reasonable explanation, namely that the education records
referenced in these billing entries were produced by Defendant on or about April 3, 2020,
which was two weeks before the administrative hearing, and therefore Ms. Reimann’s

review of those documents included consideration of how they would be used in the
context of the hearing and with witnesses. Doc. 27 at 12-13. This argument makes sense

13The degree of success of Plaintiffs’ prospective placement claim will be
separately addressed in the next section.
because had Mr. Basch reviewed those records first, it is likely Ms. Reimann would have
had to review at least some portion of them again as part of her trial preparation, thus

exposing Plaintiff’s counsel to a charge of double-billing for review of the same
documents. No reduction is warranted.
9. Work on 5-Day Disclosures
Defendant next argues that Ms. Reimann’s billing of 9.8 hours ($4,165.00) for
“work on 5-day disclosures” is “excessive for a routine letter form of disclosure,”
suggesting that 5-day disclosures involve “inserting data fields (case-specific names and

dates) into a template form letter and attaching the prior developed list of witnesses and
exhibits” which should be performed in about half an hour. Doc. 24 at 12; Romberger
Decl. ¶ 24. Plaintiff responds that the time spent is reasonable, stating that “the gist of
defendant’s objection seems to be that counsel for plaintiffs did not follow the formula
defendant followed in its losing effort,” and noting that the disclosures included 98

marked exhibits and 38 potential witnesses. Doc. 27 at 10; Suppl. Reimann Decl. ¶ 17.
Although the disclosures involved a large number of exhibits and witnesses, I
agree with Defendant that the time billed is excessive for such a routine filing. I will
reduce the amount by half, or $2,082.50.
10. Administrative Tasks

Defendant argues that some of Ms. Reimann’s block entries include administrative
tasks, and suggests a one-hour reduction in her time. Doc. 24 at 13. Specifically, Ms.
Reimann’s entry for April 9, 2020 (6.3 hours), includes “serve Parent disclosures,” and
her entry for April 10, 2020 (8.7 hours), includes “work on logistics of witness prep.”
Doc. 21-3 at 4. Plaintiff does not address these entries in their reply.

Many judges of this court have concluded that clerical tasks should not be billed at
an hourly rate.
As a general rule, time that would not be billed to a
client cannot be imposed on an adversary. [Pub. Interest
Research Gr. v.] Windall, 51 F.3d [1179,] at 1188 [(3d Cir.
1995)]. Thus, administrative tasks, which are not the type
normally billed to a paying client, may not be recovered by a
party through a fee petition. See Spegon v. Catholic Bishop
of Chi., 175 F.3d 544, 552 (7th Cir. 1999) (finding the district
court did not abuse its discretion by disallowing attorney’s
time spent on administrative tasks and striking nearly all of
the paralegal’s hours).

Alexander v. NCO Fin. Sys., Civ. No. 11-401, 2011 WL 2415156, at *6 (E.D. Pa. June
16, 2011); see also Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288 n.10 (1989)
(“purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of
who performs them”); White v. Barnhart, Civ. No. 05-2856, 2006 WL 2433835, at *6
(E.D. Pa. Aug. 18, 2006) (fees for docket-related tasks and services that could be
performed by a staff member are not recoverable).
I agree that the tasks identified are more properly administrative or clerical in
nature, and attorney time related to these tasks should not be reimbursed. However,
because the time spent on these tasks is not ascertainable due to the nature of block
billing entries, I will reduce the entries by one hour total, resulting in a reduction of
$425.00.
11. Fee Petition
As previously noted, and adjusting for the correct hourly rate for Mr. Basch,

Plaintiff seeks $6,003.00 in attorney fees for work performed from March through June 9,
2021, consisting of 13.4 hours performed by Ms. Reimann (13.4 hours x $425 = $5,695)
and 1.4 hours performed by Mr. Basch (1.4 hours x $220 = $308.00). Doc. 21-1 at 11;
Doc. 21-4. All of the time on this invoice appears to relate to the fee petition, except for
2.7 hours Ms. Reimann spent in connection with a settlement conference. Doc. 21-4.
Plaintiff also seeks an additional $12,125.50 for work performed from June 10 through

August 12, 2021, consisting of 24.2 hours performed by Ms. Reimann (24.2 hours x
$425.00 = $10,285.00), 7.4 hours performed by Mr. Basch (7.4 hours x 220.00 =
$1,628.00), and 1.7 hours performed by L.R. (1.7 hours x. $175.00 = $212.50). Doc. 27
at 4; Suppl. Reimann Dec. ¶ 29 & Exh. A (Doc. 27-2). All of this time is attributable to
the fee petition. As previously noted, Plaintiff does not identify L.R., and therefore the

amount of time billed by this individual will be excluded, for a reduction of $212.50.
Defendant implies that fees sought for the preparation of the fee petition should be
reduced, in particular where the party seeking fees should make a good-faith effort to
exclude excessive, redundant, or unnecessary fees, Doc. 24 at 9 (citing Hensley, 461 U.S.
at 434), and where “plaintiff makes no effort to eliminate time billed for plaintiff’s

unsuccessful claims.” Id. (citing Musa v. Soar Corp., No, 13-2847, 2015 WL 619615, at
*7 (E.D. Pa. Feb. 12, 2015)).
Where recovery of fees is permissible, the reasonable time expended in pursuit of
a fee award is generally recoverable. Planned Parenthood v. Att’y Gen., 297 F.3d 253,
268 (3d Cir. 2002). Here, the amount spent on the original fee petition is reasonable
given the lengthy procedural history and complexities of the case and related

documentation, including supporting declarations. Very few entries on the Fee
Statements can be fairly characterized as excessive, redundant, or unnecessary, and it is
worth noting again that lead counsel’s billing rate is below the lower end of the CLS fee
schedule approved by the Third Circuit as a fair reflection of the prevailing market rates.
Moreover, Plaintiff will not be penalized for failing to eliminate time billed for the
unsuccessful Prospective Placement claim in light of the Hearing Officer’s decision to

order a comprehensive evaluation of M.S. and an IEP meeting in lieu of placement in a
private school, thus giving Plaintiff a legitimate basis to argue that they did not entirely
lose that claim.
However, the time billed by Ms. Reimann (24.2 hours) and Mr. Basch (7.4 hours)
for preparation of the reply brief is excessive, particularly as it is more than double the

time they billed for the initial petition. I will reduce both by half resulting in a reduction
of $5,142.50 for Ms. Reimann ($10,285.00 ÷ 2) and $814.00 for Mr. Basch ($1,628.00 ÷
2), or $5,956.50. Thus, the total sum reduced in connection with the reply brief is
$6,169.00 ($5,956.50 + $212.50).
This results in a lodestar calculation (the number of hours reasonably expended on

the litigation multiplied by a reasonable hourly rate) of $119,885.00 ($131,255.00 total
fees sought - $11,370.00 in itemized reductions).14

14The total itemized reduction amount of $11,370.00 is the sum of $850.00 (for
entries related to IEP team meetings), $929.00 (for entries related to the demand),
C. Reduction of the Lodestar
Defendant argues that the lodestar in this case should be substantially reduced

because Plaintiff’s “garden-variety” due process complaint resulted in an award of partial
compensatory education but failed to win prospective placement, “resulting in less than a
50% success rate.” Doc. 24 at 5. Plaintiff counters that the lodestar should not be
reduced because they prevailed on each of their claims and achieved “excellent results.”
Doc. 27 at 5, 7-9.
Here, as previously noted, attorney fees are authorized by the IDEA to a prevailing

party who is the parent of a child with a disability. 20 U.S.C. § 415(i)(3)(B)(i)(I). A
party “prevails” when the relief on the merits “materially alters the legal relationship
between the parties by modifying the defendant’s behavior in a way that directly benefits
the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). A parent of a disabled
child qualifies as a prevailing party if he or she secured some of the relief that they

sought. See John T. v. Del. Cnty. Interm. Unit, 318 F.3d 545, 555 (3d Cir. 2003) (parent
is prevailing party if he or she “succeed[ed] on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing suit”) (quoting Hensley, 461
U.S. at 433); M.R. v. Ridley Sch. Dist., 868 F.3d 218, 224 (3d Cir. 2017). In Hensley,
the Supreme Court recognized that fees should not be reduced where plaintiffs are

substantially successful and claims are intertwined, and that courts must “focus on the

$914.50 (for entries related to the prospective placement claim), $2,082.50 (for entries
related to the 5-day disclosures), $425.00 (for administrative tasks), and $6,169.00 (for
entries related to the reply brief).
significance of the overall relief obtained by the plaintiff in relation to the hours
reasonably expending on the litigation.” 461 U.S. at 435. The Supreme Court rejected a

mathematical ratio consisting of total issues raised to issues actually prevailed upon,
because “such a ratio provides little aid in determining what is a reasonable fee in light of
all the relevant factors.” Id. n.11; see also McCutcheon v. Am.’s Servicing Co., 560 F.3d
143, 151 (3d Cir. 2009) (“mathematically deducting fees proportional to a plaintiff’s
losing claims is ‘too simplistic and unrealistic’”) (quoting W. Va. Univ. Hosps. v. Casey,
898 F.2d 357, 363 (3d Cir. 1990)).

As summarized in the procedural background, the Hearing Officer found that the
District failed to provide M.S. with a FAPE for part of the 2018-2019 academic year and
all of the 2019-2020 school year, and awarded Plaintiff 4.66 hours (two hours less than a
full day) per day that M.S. attended school from February 15, 2019, through December
16, 2019, and two hours of compensatory education per school day from December 17,

2019, through the date of the Final Decision. Id. at 34-36, 39.15 The Hearing Officer
further found that Plaintiff had not substantiated a claim for prospective placement in a
private school, noting that the prospective placement “perpetuates the most significant
deficiency in the District’s program,” and reasoning that “nothing in the record . . .
substantiates a finding that the District cannot correct flaws in the Student’s IEPs and

offer an appropriate program.” Id. at 36. Rather, the Hearing Officer sua sponte ordered

15Because the Hearing Officer issued the Final Decision on June 15, 2020, the
effective end date for compensatory education was the start of the COVID-19 shutdown
in early March 2020.
a comprehensive evaluation of M.S. to be followed by an IEP meeting. Id. at 3, 36-39.
As the Hearing Officer explained, “[f]inding that [M.S.’s] current placement is improper

and that [M.S.] is not entitled to the Parent’s preferred placement leaves the parties at
square one,” and that “[l]eaving the parties at the same impasse that brought them to this
hearing is contrary to the IDEA’s purposes.” Id. at 36-37. Therefore, although Plaintiff
failed to obtain placement in a private school, the Hearing Officer recognized that
Plaintiff was entitled to a remedy that at least resolved the parties’ impasse by obtaining
an updated evaluation.

In its argument that the lodestar should be reduced, Defendant relies on cases in
which courts in this jurisdiction have reduced fee awards, including in special education
cases, based on the plaintiff’s limited degree of success. Doc. 24 at 14-17. Defendant
offers examples where the court reduced the lodestar by 30% where plaintiff-parents have
received only partial success on their claims. Id. at 14-15 (citing, inter alia, S.M. ex rel.

G.M. v. Sch. Dist. of Upper Dublin, Civ. No. 10-4038, 2012 WL 2953727, at *5-8 (E.D.
Pa. Jul. 20, 2012) (lodestar reduced 30% where plaintiff-parent failed to prevail on three
of their core claims and achieved only partial success overall); Sch. Dist. of Phila. v.
Deborah A., Civ. No. 08-2924, 2011 WL 2681234, at *4-5 (E.D. Pa. Jul. 8, 2011)
(lodestar reduced 30% where plaintiff sought significantly more compensatory education

than received)). It is within the court’s discretion to reduce the lodestar where the
plaintiff-parents have prevailed on some, but not all, of their claims. Compare I.W. v.
Sch. Dist. of Phila., Civ. No. 14-3141, 2016 WL 147148, at *21 (E.D. Pa. Jan. 13, 2016)
(lodestar reduced 30% where plaintiff prevailed on only two out of seven claims in
administrative proceeding, but nevertheless obtained “significant results” including 1,300
hours of compensatory education, reimbursement for testing, and an order requiring the

defendant to perform another evaluation and provide remedial, intensive programming),
with Sch. Dist. of Phila. v. Kirsch, 722 Fed. Appx. 215, 230 (3d Cir. 2018) (court did not
abuse its discretion in declining to reduce attorney fees based on unsuccessful claims
where counsel “achieved significant success”).
Plaintiff counters that Defendant’s arguments should be rejected “out of hand”
because Plaintiff’s counsel “obtained an excellent result.” Doc. 27 at 5. For example, the

Hearing Officer found that Defendant did not provide a FAPE for both school years in
which Plaintiff sought relief and ordered what amounted to approximately 800 hours of
compensatory education as a remedy.16 Additionally, although the Hearing Officer found
that Plaintiff had not substantiated a claim for prospective placement in a private school,
he fashioned a different remedy sua sponte, ordering a comprehensive evaluation of M.S.

to be followed by an IEP meeting to be convened by the parties. Final Decision, Doc. 21-
9 at 3, 36-39.
Although the parties have vastly different interpretations of who prevailed as to
the various issues before the Hearing Officer, it cannot fairly be disputed that Plaintiff
received an award of compensatory education for at least part of two academic years, and

that although Plaintiff did not attain M.S.’s prospective placement in a private school, the

16As Plaintiff points out, they did not ask the Hearing Officer to award a particular
amount of compensatory education, but rather argued that Defendant’s denial of FAPE
“permeated [M.S.’s] entire school day.” Doc. 27 at 7; Suppl. Reimann Decl. ¶ 8. As
noted, supra n.2, the parties calculate the total hours awarded differently.
Hearing Officer recognized the need to provide some sort of alternative remedy. Thus,
what Plaintiff characterizes as “excellent results” fall somewhere short of total victory --

a conclusion logically demonstrated by Plaintiff’s decisions to file the Second Due
Process Complaint with ODR and to commence this federal appeal of the Hearing
Officer’s Final Decision.
For the foregoing reasons, I find that Plaintiff won “some” of the relief they
sought on their claims for both compensatory education and prospective placement and
are clearly the prevailing party. See Hensley, 461 U.S. at 433. However, the overall

outcome fell somewhat short of “substantially successful,” particularly on the placement
claim and the second period of compensatory education, and therefore a modest reduction
in the lodestar is warranted. Id. at 435. Plaintiff appears to have obtained a generally
better result in this case than in the cases relied upon by Defendant in which courts
reduced the lodestar by 30%, and a larger reduction is certainly not warranted. For

example, the Third Circuit has reduced the lodestar by 75% in part because plaintiffs did
not prevail on their claim for reimbursement of the independent educational evaluation,
but also because counsel failed to properly support the hourly rate requested, counsel’s
fee breakdown was unreasonable in light of counsel’s experience, and because the court
questioned the necessity of the great amount of time claimed by counsel. Holmes ex rel.

Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 595-96 (3d Cir. 2000). The court
also found that plaintiffs and their counsel “contributed to the needlessly protracted
hearings.” Id. at 594. None of those billing concerns are present here.
For the aforementioned reasons, I will reduce the lodestar amount by a more
modest 15%, or $17,982.75 (15% of $119,885.00). That leaves attorney fees totaling

$101,902.25. Including the undisputed $400.00 in costs, the total fees and costs are
$102,302.25.
IV. CONCLUSION
Upon consideration of the parties’ arguments and the governing factors, Plaintiff’s
motion for fees and costs will be granted in the amount of $102,302.25. An appropriate
Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10401751. Public record. Not legal advice.