Appendix — District of Columbia v. Kattan
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Z \ Supreme Court, U.S.
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@s-1296 FEB 10 190
No. 93- OFFICE OF THE CLERK
In the Supreme Court of the United States
OcToBER TERM, 1993
District OF COLUMBIA, et al.
Petitioners,
Ve
SARAH KatTTaNn, By HER PARENTS AND
Next FRIENDS, SUSAN J. THOMAS AND
JOSEPH KATTAN, et al,
Respondents.
Appendix to Petition for a Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
JOHN PAYTON,
Corporation Counsel
CHARLES L. REISCHEL,
Deputy Corporation Counsel
Appellate Division
*DONNA M. MurRAsky,
Assistant Corporation Counsel
Office of the Corporation Counsel
One Judiciary Square
Sixth Floor
441 Fourth Street, N.W.
Washington, D.C. 20001
Telephone: (202) 727-6252 ext. 3303
*Counsel of Record
45 ty
“
TABLE OF CONTENTS
Page
Opinion of the United States Court of Appeals for the District
of Columbia Circuit (as amended June 30, 1993) la
Opinion of the United States Court of Appeals for the
District of Columbia Circuit (June 15, 1993) l3a
Memorandum Opinion of the United States District Court
for the District of Columbia (October 17, 1991) 26a
Judgment of the United States District Court for the District
of Columbia (October 17, 1991) 32a
Order of the United States District Court for the District
of Columbia (December 11, 1991) 33a
Amended Judgment of the United States District Court for
the District of Columbia (December 11, 1991) 36a
Order of the United States Court of Appeals for the District
of Columbia Circuit denying Petition for Rehearing
(October 6, 1993) 37a
Order of the United States Court of Appeals for the District
of Columbia Circuit denying Suggestion for Rehearing
En Banc (October 6, 1993) 38a
Order of Chief Justice of the United States granting an
extension of time for filing a petition for a writ of certiorari
(November 23, 1993) 39a
Order of the United States Court of Appeals for the District
of Columbia Circuit requiring supplemental brief (December
9, 1993) 40a
Order of the United States Court of Appeals for the District
of Columbia Circuit denying Motion to Clarify and Vacate
(December 21, 1993) 4la
Excerpts from the General Docket of the United States Court
of Appeals for the District of Columbia Circuit 42a
Sarah KATTAN, By Her Parents and Next Friends Susan
J. THOMAS and Joseph Kattan, et al., Appellees and
Cross-Appellants,
Vv.
DISTRICT OF COLUMBIA,
et al., Appellants and
Cross-Appellees.
Nos. 92-7011 and 92-7012.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 7, 1993.
Decided June 15, 1993.
As Amended June 30, 1993.
Donna M. Murasky, Asst. Corp. Counsel, with whom John
Payton, Corp. Counsel, and Charles L. Reischel, Deputy
Corp. Counsel, Washington, DC, were on the brief, for ap-
pellants/cross-appellees.
Patricia D. Douglass, Washington, DC, for appellees/cross-
appellants.
Before MIKVA, Chief Judge; D.H. GINSBURG and
SENTELLE, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
Opinion concurring in part and dissenting in part filed by
Circuit Judge D.H. GINSBURG.
MIKVA, Chief Judge:
Appellants Sarah Kattan and her parents prevailed in a
suit against the District of Columbia under the Education
for All Handicapped Children Act. 20 U.S.C. §§ 1400-1485.
They subsequently applied to the district court for attorneys’
fees based on the fee-shifting provision of the Handicapped
Children’s Protection Act. 20 U.S.C. $1415(e)(4)(B). They re-
quested fees for the services provided by their attorney, Ms.
Patricia Douglass, as well as those provided by Mr. Kattan
la
Za
himself, a lawyer who served as co-counsel to Ms. Douglass.
The District of Columbia did not question Mr. Kattan's
entitlement to fees, and, approximately three years later, the
district court issued a fee award which reflected the labors
of both Mr. Kattan and Ms. Douglass.
In the period between the Kattans’ fee request and the
district court's award, the Supreme Court decided Kay v.
Ehrler, —— U.S. ——, 111 S.Ct. 1435, 113 L.Ed. 2d 486
(1991), in which it held that an attorney representing himself
in a civil rights action was not eligible for attorneys’ fees.
Two weeks after the district court issued the fee award, the
District of Columbia filed a motion in district court pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure, request-
ing that the court eliminate the fees for Mr. Kattan’s ser-
vices, in light of Kay v. Ehrler. The district court rejected
this motion.
The District of Columbia appeals the district court's award
of fees for Mr. Kattan, arguing that Kay v. Ehrler compels
a contrary result. In a cross-appeal, the Kattans challenge
the district court's decision to award fees for Ms. Douglass
at a rate of $125 per hour, instead of the $150 per hour that
the Kattans requested. For the reasons explained below, we
uphold the district court’s fee award in all repsects.
I. BACKGROUND
Mr. Joseph Kattan and Ms. Susan J. Thomas, the parents
of Sarah Kattan, filed a suit on Sarah's behalf in district court
against the District of Columbia. The Kattans alleged that
the District had placed Sarah, a disabled child, in a school
that was inappropriate under the Education for All Handi-
capped Children Act (““EHA’’), 20 U.S.C. $§ 1400-1485.
Initially, Mr. Kattan, an attorney, represented his family.
Later, at the urging of the district court, he secured Mr.
Patricia Douglass as co-counsel.
The district court ultimately held for the Kattans, on
August 9, 1988. It determined that Sarah would not receive
all of the services guaranteed to her by the EHA at the school
to which the District had assigned her, and it ordered the
3a
District to place her at a private school at public expense.
Soon thereafter, on October 11, 1988, the Kattans filed an
application for attorneys’ fees for both Mr. Kattan and Ms.
Douglass, under the relevant provision of the Handicapped
Children’s Protection Act (‘‘HCPA’’), 20 U.S.C. §
1415(e)(4)(B)(‘‘In any action or proceeding brought under this
subsection, the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs to the parents or guar-
dians of a handicapped child or youth who is the prevailing
party.’’) The District promptly filed an opposition to the
application in which it argued that the amounts requested
were too high. The District did not, however, contest the
right of an attorney representing himself and his child to
receive a fee award under the statute.
It was not until nearly three years later, on October 17,
1991, that the district court finally entered an order awarding
fees of $38,000 to Ms. Douglass and $43,050 to Mr. Kattan.
In the interim, on April 16, 1991, the Supreme Court had
decided Kay v. Ehrler, in which the Court ruled that at-
torneys’ fees may not be awarded to attorneys representing
themselves in civil rights actions under the fee provision of
42 U.S.C. § 1988 (‘‘[T]he court in its discretion, may allow
the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.’’).
On October 31, 1991, the District of Columbia filed a
motion in the district court, pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, to alter or amend the
October 17 order awarding attorneys’ fees. In the motion,
the District contended, for the first time, that a pro se litigant
who is also a lawyer is not eligible for attorney's fees under
the HCPA. The District argued that the Supreme Court’s
reasoning in Kay v. Ehrler, as to 42 U.S.C. § 1988, required
the district court to reverse its decision to award attorney’s
fees to Mr. Kattan under the analogous fee provision of the
HCPA. The district court, however, denied the motion on
December 11, 1991, holding that the District of Columbia
had waived the issue of Mr. Kattan’s entitlement to fees by
not raising it before the district court awarded fees on Octo-
ber 17, 1991.
4a
The District of Columbia appeals the district court’s orders
of October 17 and December 11, 1991, insofar as they award
attorney’s fees to Appellees for time expended on the case
by Mr. Kattan. The Kattans, in turn, issue a cross-appeal
against the October 17 order to the extent that it limits at-
torney’s fees for Ms. Douglass’ services to the rate of $125
per hour, instead of the requested $150 per hour.
Il. ANALYSIS |
A. Mr. Kattan’'s Entitlement to Attorney's Fees
The HCPA provides, ‘‘In any action or proceeding brought
under this subsection, the court, in its discretion, may award
reasonable attorneys’ fees as part of costs to the parents or
guardian of a handicapped child or youth who is the prevail-
ing party.’’ 20 U.S.C. § 1415(e)(4)(B). The District asserts
that, in light of Kay v. Ehrler, an attorney representing
himself is not eligible for a fee award under the HCPA. We
do not find it necessary to consider this issue. We agree with
the district court that the District of Columbia waived its
argument against the availability of fee awards to pro se
litigants by failing to raise it in 1988 in its original opposi-
tion to the Kattans’ motion for fees.
{1] The District of Columbia claims that the district court
erred by rejecting its Rule 59(e) motion to alter or amend
the judgment awarding fees to Mr. Kattan. In that motion,
the District asserted that Kay v. Ehrler represented a change
of law that it could not reasonably have anticipated, and that
the Supreme Court decision required the district court to
retract its award of fees for Mr. Kattan’s services. The
district court held that Kay was not an unanticipated change
in the law and that the District had therefore waived its argu-
ment against Mr. Kattan’s entitlement to attorney's fees by
not raising it before judgment.
We affirm the district court’s finding of a waiver. In
analogous circumstances, this Court has recognized that a
losing party may not use a Rule 59 motion to raise new issues
that could have been raised previously.
5a
Ordinarily Rule 59 motions for either a new trial
or a rehearing are not granted by the District Court
where they are used by a losing party to request the
trial judge to reopen proceedings in order to consider
a new defensive theory which could have been raised
during the original proceedings.
Grumman Aircraft Engineering Corp. v. Renegotiation
Board, 482 F.2d 710, 711 (D.C. Cir. 1973), overruled on dif-
ferent grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57
(1975). See also Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d
1260, 1268 (7th Cir. 1986) (Rule 59(e) motion ‘‘cannot be used
to raise arguments which could, and should, have been made
before the judgment issued.’’).
In 1988, when it opposed the Kattans’ application for
attorneys’ fees, the District of Columbia could have proffered
a legitimate argument that such fees were not available to
pro se litigants under the HCPA. Although the Supreme
Court did not decide Kay until 1991, there was no reason
in 1988 for the District of Columbia to assume that this Cir-
cuit had conclusively confirmed the availability of a fee award
to a pro se litigant in an EHA suit or other civil rights case.
At the time, the only binding precedent in our Circuit on
the issue of fee awards to lawyers representing themselves
related to the fee-shifting provision of the Freedom of Infor-
mation Act (““FOIA’’). Cuneo v. Rumsfeld, 553 F.2d 1360
(D.C. Cir. 1977). That decision held that attorneys acting pro
se could receive fees under FOIA. Jd. at 1366. However, much
of the Court’s reasoning in that decision related specifically
to the ‘‘policy considerations underlying FOIA.”’ Jd. Conse-
quently, the District of Columbia had no basis to believe that
Cuneo settled the HCPA question. If the District wished to
claim that Mr. Kattan was ineligible for attorney’s fees under
the HCPA, it should have attempted to distinguish Cuneo
from the present case in the district court. Such an argument
would have been far from frivolous.
Indeed, in 1984, similarly situated litigants, the defendants
in a civil rights action, argued, despite this Circuit’s deci-
sion in Cuneo, that a lawyer representing himself was not
iia aii
6a
entitled to attorney's fees under 42 U.S.C. $1988. Lawrence
v. Staats, 586 F.Supp. 1375 (D.D.C. 1984), aff'd sub nom.
Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991) (on the
grounds stated by Kay v. Ehrler). Not only did the defen-
dants in Lawrence raise this issue—the district court agreed
with them. Judge Flannery, in a well-reasoned opinion, ex-
plicitly distinguished cases permitting pro se attorneys’ fees
in FOIA suits from cases dealing with fee-shifting in civil
rights actions. He cited a series of cases from other circuits
holding that pro se plaintiffs were not entitled to attorneys’
fees under § 1988, and he stated:
The court finds the statutory analysis and reason-
ing of these cases persuasive, and does not believe
that this Circuit's allowance of attorney fees to pro
se litigants in FOIA cases changes the analysis,
since the intent of Congress and purpose of FOIA
and its fee provisions differ significantly from the
intent and purposes of §§ 1988 and [42 U.S.C. §]
2000e-5(k).
Id. at 1379.
In the present case, the District of Columbia was in a better
position than were the defendants in Lawrence to realize that
a challenge to a pro se plaintiff's attorney's fees might suc-
ceed, for the District could look to Lawrence itself as an
example. It is also worth noting that the Kattans flagged
the issue in a footnote in their application for fees. Never-
theless, in its opposition to the Kattans’ application, the
District chose not to raise the question of the availability
of fees for pro se litigants. We therefore agree with the
district court that the District of Columbia waived the issue
of Mr. Kattan’s eligibility for fees by not raising it in a timely
manner. The district court clearly did not abuse its discre-
tion by denying the District’s Rule 59(e) motion.
{2] Alternatively, the District of Columbia asserts that we
should, in light of the change in law brought about by Kay
v. Ehrler, use our power under 28 U.S.C. § 2106 to review
the issue of a pro se litigant’s eligibility for fees. That section
states, ‘“The Supreme Court or any other court of appellate
Ta
jurisdiction may . . . vacate, set aside or reverse any judg-
ment, decree, or order of a court lawfully brought before it
for review and direct the entry of such appropriate judgment,
decree or order . . . as may be just under the circumstances.”
The District is correct that although we do not ordinarily
pass on issues that a party failed to raise in a timely fashion
in the district court, we sometimes do review such issues
when a supervening decision changes the law in the appel-
lant’s favor. On occasion, courts of appeals have justified
this practice partly on the basis of 28 U.S.C. § 2106. See,
e.g., Pendergrast v. United States, 416 F.2d 776, 780-81 &
n. 19 (D.C. Cir. 1969), cert. denied, 395 U.S. 926, 89 S.Ct.
1782, 123 L.Ed.2d 243 (1969). More often, appeals courts
seem to have relied primarily on their intrinsic powers to
achieve a just resolution. The Supreme Court noted long ago:
We have frequently held that in the exercise of our
appellate jurisdiction we have power not only to
correct error in the judgment under review but to
make such disposition of the case as justice requires.
An|d] in determining what justice does require, the
Court is bound to consider any change, either in fact
or in law, which has supervened since the judgment
was entered.
Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578,
79 L.Ed. 1082 (1935). See also, Hormel v. Helvering, 312 U.S.
552, 558, 61 S.Ct. 719, 722, 85 L.Ed. 1037 (1941) (‘‘[Our deci-
sions], while recognizing the desirability and existence of a
general practice under which appellate courts confine
themselves to the issues raised below, nevertheless do not
lose sight of the fact that such appellate practice should not
be applied where the obvious result would be a plain miscar-
riage of justice.’’); Leary v. United States, 395 U.S. 6, 27-28,
89 S.Ct. 1532, 1543-44, 23 L.Ed.2d 57 (1969); United States
v. Byers, 740 F.2d 1104, 1115-16 n. 11 (D.C. Cir. 1984).
In each of the cases cited above, the intervening decision
enunciated a new legal principle that was previously
unavailable to the appellant, for all practical purposes. The
present case, on the other hand, does not fit this paradigm.
7 8a
As we explained above the District of Columbia could have
validly disputed Mr. Kattan’s entitlement to fees before the
Supreme Court decided Kay v. Ehrier. Absent ‘‘exceptional
circumstances,’’ the court of appeals is not a forum in which
a litigant can present legal theories that it neglected to raise
in a timely manner in proceedings below. See Director, Office
of Workers’ Compensation Programs, U.S. Dep't of Labor
v. Edward Minte Co., 803 F.2d 731, 736 (D.C. Cir. 1986). No
such exceptional circumstances exist in this case.
B. Ms. Douglass’ Rate
In a cross-appeal, the Kattans allege that the district court
abused its discretion by awarding them attorney's fees for
Ms. Douglass’ work at a rate of $125 per hour. The district
court set Ms. Douglass’ rate at this amount, despite the fact
that the Kattans submitted a declaration stating that Ms.
Douglass’ normal billing rate in her private practice was $150
per hour. For the reasons stated below, we uphold the district
court's calculation of fees for Ms. Douglass’ services.
The HCPA provides that ‘‘fees awarded under this subsec-
tion shall be based on rates prevailing in the community in
which the action or proceeding arose for the kind and quality
of services furnished.” 20 U.S.C. § 1451(e)(4)(C). Both parties
agree that an attorney's usual billing rate is presumptively
the reasonable rate, provided that this rate is “‘in line with
those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and
reputation.’ Blum v. Stenson, 465 U.S. 886, 895-96 n. 11,
104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984). The par-
ties disagree as to whether the district court was justified,
under this principle, in setting Ms. Douglass’ rate at $125
instead of her normal billing rate of $150.
(3, 4] A district court’s discretion as to the proper hourly
rate to award counsel should not be upset absent clear misap-
plication of legal principles, arbitrary fact finding, or unprin-
cipled disregard for the record evidence. King v. Palmer, 950
F.2d 771, 786 (D.C. Cir. 1991) (en banc), cert. denied, ——
U.S. ——, 112 S.Ct. 1290, 117 L.Ed.2d 514 (1992) & —— U.S.
——, 112 S.Ct. 3054, 120 L.Ed.2d 920 (1992). No such pro-
tanita
9a
blems exist in the district court's fee award. The district court
applied the law correctly and considered all the available
evidence in setting the disputed rate.
The following evidence was available for the district court
to consider when it established Ms. Douglass’ rate: (1) an
affidavit submitted by Ms. Douglass, stating her standard
rate of $150 per hour and summarizing her education and
experience; (2) a declaration by a local expert retained by the
Kattans, setting out broad ranges of fees generally charged
by attorneys with various levels of experience in Washington,
D.C.; and (3) reports of similar cases in which fees were
awarded for comparable work.
In its opposition to the Kattan’s application for attorneys’
fees, the District suggested that the district court award Ms.
Douglass’ fees at $75 per hour, the same rate awarded in
Stebbing v. District of Columbia, another EHA case. C.A.
No. 86-2549 (D.D.C. March 2, 1988). The district court,
however, refused to set the rate at $75 per hour, because in
Stebbing “the litigation was not very complicated.’’ On the
other hand, the district court noted that ‘‘other analogous
decisions in this circuit have awarded attorneys’ fees of $125
for partner time.”’ The court specifically referred to Moore
v. District of Columbia, 674 F.Supp. 901 (D.D.C. 1987), an
EHA case handled by a leading EHA firm in the District.
The district court further noted that the plaintiffs had fail-
ed to cite a single case in which the fee award was greater
than $125.
‘In light of the relevant case law and the affidavits sub-
mitted by Ms. Douglass,”’ the district court reasonably deter-
mined that $125, a figure within the expert’s range for
attorneys with Ms. Douglass’ experience, was the prevail-
ing community rate for Ms. Douglass’ services. In setting
the fee, the district court considered Ms. Douglass’ profes-
sional history, the complexity of the case, and the fees award-
ed in similar cases to attorneys with similar experience.
Nothing more was required. Keeping sight of the deference
which we owe the district court’s fee determinations, we find
no reason to overturn the district court's decision.
LOa
Finally, the Kattans contend that the district court erred
by failing, when establishing Ms. Douglass’ rate, to take in-
to account a subparagraph of the HCPA, 20 U.S.C. §
1415(e)(4\(G). That subparagraph provides that the court
should not reduce attorneys’ fees that ‘unreasonably ex-
ceed| | the hourly rate prevailing in the community for similar
services by attorneys of reasonably comparable skill, experi-
ence. and reputation,” as it is required to by § 1415(e)(4)(F (ii),
if it finds that “the State or local educational agency
unreasonably protracted the final resolution of the action or
proceeding.”
In 1988, the Kattans, asserting that the District had
unreasonably protracted the litigation, moved for sanctions
against the District under 20 U.S.C. § 1415(e)(4)(G), as well
as under 28 U.S.C. § 1927 and Rule 11 of the Federal Rules
of Civil Procedure. The Kattans argued in their supporting
memoranda that the District's dilatory tactics warranted a |
greater fee award than that permitted under the HCPA’s
basic fee-shifting provision. |
The Kattans contend that the district court neglected to
consider their § 1415(e)(4)(G) claim. In its order of October
1, 1991, the district court expressly rejected the Kattans’
motion for sanctions, stating that ‘“{ajlthough defendants’
conduct in this case was far from exemplary, it does not rise
to the level of conduct necessary for the imposition of sanc-
tions under Fed.R.Civ. P. 11 or 28 U.S.C. § 1927.” Although
the district court did not explicitly mention § 1415(e)(4)(G),
it implicitly rejected the Kattans’ claim under that provi-
sion as well, since the Kattans relied on all three provisions
in the same motion. In any case, the court clearly made
findings as to the blameworthiness of the District’s conduct
sufficient to reject the Kattans’ § 1415(e)(4)(G) claim. We are
in no position to second-guess the district court’s judgment
as to whether the District of Columbia's tactics were
unreasonable enough to warrant the award of extra fees.
III. CONCLUSION
Because the District of Columbia did not contest Mr.
Kattan’s entitlement to attorney's fees in its original opposi-
ee
lla
tion to the Kattans’ application for fees, we find that the
District waived the issue and cannot raise it for the first time
on appeal. We further hold that the district court. was
justified in setting Ms. Douglass’ fees at $125 per hour. We
therefore uphold the district court’s fee award in all respects.
It is so ordered.
D.H. GINSBURG, Circuit Judge, concurring in part and
dissenting in part:
The district court decided that Kay v. Ehrler, —— U.S.
——, 111 S.Ct. 1435 113 L.Ed.2d 486 (1991), in which the
Supreme Court held that a pro se litigant is not entitled to
an attorney's fee under 42 U.S.C. § 1988, does not bar the
award of an attorney’s fee to a pro se litigant under the Han-
dicapped Children’s Protection Act. The reason? Simply that
‘plaintiffs’ motion for fees is based on the EHA, a different
statutory scheme from that which formed the basis of the
Kay v. Ehrler decision." Kattan v. District of Columbia, No.
88-0630 (D.D.C. December 11, 1991), slip op. at 3. This is
the proverbial distinction without a difference.
The fee-shifting provision of the HCPA is practically iden-
tical to that of § 1988, and the Supreme Court has long
required that similar fee-shifting provisions in federal
statutes be interpreted in the same way. See, e.g., Indepen-
dent Federation of Flight Attendants v. Zipes, 491 U.S. 754,
758 n. 2, 109 S.Ct. 2732, 2735 n. 2, 105 L.Ed.2d 639 (1989)
(“We have stated that fee-shifting statutes’ similar language
is ‘a strong indication’ that they are to be interpreted alike’);
Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933.
1939 n. 7, 76 L.Ed.2d 40 (1983) (same standards for awarding
attorney's fee apply under all statutes authorizing award of
fee to a “‘prevailing party’’); Northcross v. Board of Educa-
tion, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48
(1973) (similarity in wording of two statutory fee-shifting pro-
visions is a ‘‘strong indication that the two statutes should
be interpreted pari passu’’).
The Court in Kay v. Ehrler also stated that ‘“‘the word
‘attorney’ assumes an agency relationship, and it seems likely
that Congress contemplated an attorney-client relationship
as the predicate for an award under § 1988.” —— U.S. —-,
111 S.Ct. at 1437. I see no reason to think that the word
12a
‘attorney in the fee-shifting provision of §1988 has a dif-
ferent meaning than it has in the fee-shifting provision of
the HCPA. The district court's cursory ‘‘analysis’’ surely
offers none.
The district court's grant of a fee for the work performed
by Mr. Kattan was clearly an error. The court, however,
declines to reach the merits of that question, See Ct.Op. at
5, holding that ‘tthe District of Columbia waived the issue
of Mr. Kattan’s eligibility for fees by not raising it in the
district court in a timely manner.”’ Ct.Op. at 8. I disagree.
The District of Columbia had no reason in 1988 to antici-
pate that the Supreme Court would in 1991 change the law
of this circuit, which then authorized the district court to
award an attorney's fee to a pro se litigant. On the contrary,
the district court was clearly bound both by Cuneo uv.
Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977), which held that
a pro se lawyer was eligible for fees under the Freedom of
Information Act, and by the Supreme Court's longstanding
command that similarly-worded fee-shifting provisions are
to be treated alike. The distinction the district court drew
in Lawrence v. Staats, 586 F.Supp. 1375 (D.D.C. 1984), bet-
ween the fee provision of the FOIA and that of § 1988 ran
contrary to the Supreme Court’s approach. See Lawrence v.
Bowsher, 931 F.2d 1579, 1580 (D.C. Cir. 1991) (affirming
‘“[s]olely’’ on the basis of intervening Supreme Court deci-
sion in Kay v. Ehrler, which overruled Cuneo). But see Ct.Op.
at 277 (lauding the district court for ‘‘a well-reasoned opi-
nion”’ in Lawrence v. Staats).
It is simply unreasonable to penalize the District of Colum-
bia for failing to have argued a distinction (between the fee
provision of the FOIA and that of the HCPA) that the
district court would have been required to reject under
Supreme Court and circuit precedent. By holding that the
District waived the issue of Mr. Kattan’s eligibility for fees,
the court is in effect punishing a litigant for not making what
would have been at the time an almost frivolous argument.
Finding no waiver of the District’s objection, I respect-
fully dissent from the court’s decision affirming the award
of an attorney's fee to the pro se plaintiff.
Ce ene ee
l3a
Notice: This opinion is subject to formal revision before publication in
the Federal Reporter or U.S.App.D.C. Reports. Users are requested to
notify the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
Gnited States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 7, 1993 Decided June 15, 1993
Nos. 92-7011 and 92-7012
SARAH Katran, By Her Parents AND NExtT FRIENDS
SusAN J. THOMAS AND JOSEPH KATTAN. ET AL.
APPELLEES AND Cross-APPELLANTS
V.
District oF COLUMBIA, ET AL.
4hsts Dan
Appeal from the United States District Court
for the District of Columbia
(88cv00630)
Donna M. Murasky, Assistant Corporation Counsel, with
whom John Payton, Corporation Counsel, and Charles L.
Reischel, Deputy Corporation Counsel, were on the brief, for
appellants/cross-appellees.
Patricia D. Douglass for appellees/cross-appellants.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
l4da
Before Mikva, Chief Judge;. D.H. GinspurG and SENTELLE,
Circuit Judges.
Opinion for the Court filed by Chief Judge Mikva.
Opinion concurring in part and dissenting in part filed by
Circuit Judge D.H. GInspurc.
Mikva, Chief Judge: Appellants Sarah Kattan and her
parents prevailed in a suit against the District of Columbia
under the Education for All Handicapped Children Act. 20
U.S.C. §§ 1400-1485. They subsequently applied to the dis-
trict court for attorneys’ fees based on the fee-shifting provi-
sion of the Handicapped Children’s Protection Act. 20 U.S.C.
§ 1415(e)(4)(B). They requested fees for the services provid-
ed by their attorney, Ms. Patricia Douglass, as well as those
provided by Mr. Kattan himself, a lawyer who served as co-
counsel to Ms. Douglass. The District of Columbia did not
question Mr. Kattan’s entitlement to fees, and, approximately
three years later, the district court issued a fee award which
reflected the labors of both Mr. Kattan and Ms. Douglass.
In the period between the Kattans’ fee request and the
district court’s award, the Supreme Court decided Kay v.
Ehrler, 111 S. Ct. 1435 (1991), in which it held that an
attorney representing himself in a civil rights action was not
eligible for attorneys’ fees. Two weeks after the district
court issued the fee award, the District of Columbia filed a
motion in district court pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure, requesting that the court eliminate
the fees for Mr. Kattan’s services, in light of Kay v. Ehrler.
The district court rejected this motion.
The District of Columbia appeals the district court’s award
of fees for Mr. Kattan, arguing that Kay v. Ehrler compels a
contrary result. In a cross-appeal, the Kattans challenge the
district court’s decision to award fees for Ms. Douglass at a
rate of $125 per hour, instead of the $150 per hour that the
Kattans requested. For the reasons explained below, we
uphold the district court’s fee award in all respects.
l5a
I. BACKGROUND
Mr. Joseph Kattan and Ms. Susan J. Thomas, the parents
of Sarah Kattan, filed a suit on Sarah’s behalf in district court
against the District of Columbia. The Kattans alleged that
the District had placed Sarah, a disabled child, in a school
that was inappropriate under the Education for All Handi-
capped Children Act (“EHA”), 20 U.S.C. §§ 1400-1485. Ini-
tially, Mr. Kattan, an attorney, represented his family. La-
ter, at the urging of the district court, he secured Ms. Patricia
Douglass as co-counsel.
The district court ultimately held for the Kattans, on
August 9, 1988. It determined that Sarah would not receive
all of the services guaranteed to her by the EHA at the
school to which the District had assigned her, and it ordered
the District to place her at a private school at public-expense.
Soon thereafter, on October 11, 1988, the Kattan’ filed an
application for attorneys’ fees for both Mr. Kattan and Ms.
Douglass, under the relevant provision of the Handicapped
Children’s Protection Act (“HCPA”), 20 USC.
§ 1415(e)(4)(B) (“In any action or proceeding brought under
this subsection, the court, in its discretion, may award reason-
able attorneys’ fees as part of the costs to the parents or
guardians of a handicapped child or youth who is the prevail-
ing party.”) The District promptly filed an opposition to the
application in which it argued that the amounts requested
were too high. The District did not, however, contest the
right of an attorney representing himself and his child to
receive a fee award under the statute.
It was not until nearly three years later, on October 17,
1991, that the district court finally entered an order awarding
fees of $38,000 to Ms. Douglass and $43,050 to Mr. Kattan.
In the interim, on April 16, 1991, the Supreme Court had
decided Kay v. Ehrler, in which the Court ruled that attor-
neys’ fees may not be awarded to attorneys representing
themselves in civil rights actions under the fee provision of 42
U.S.C. § 1988 (“[T]he court in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.”).
l6a
On October 31, 1991, the District of Columbia filed a motion
in the district court, pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure, to alter or amend the October 17
order awarding attorneys’ fees. In the motion, the District
contended, for the first time, that a pro se litigant who is also
a lawyer is not eligible for attorney’s fees under the HCPA.
The District argued that the Supreme Court’s reasoning in
Kay v. Ehrler, as to 42 U.S.C. § 1988, required the district
court to reverse its decision to award attorney’s fees to Mr.
Kattan under the analogous fee provision of the HCPA. The
district court, however, denied the motion on December 11,
1991, holding that the District of Columbia had waived the
issue of Mr. Kattan’s entitlement to fees by not raising it
before the district court awarded fees on October 17, 1991.
The District of Columbia appeals the district court’s orders
of October 17 and December 11, 1991, insofar as they award
attorney's fees to Appellees for time expended on the case by
Mr. Kattan. The Kattans, in turn, issue a cross-appeal
against the October 17 order to the extent that it limits
attorney’s fees for Ms. Douglass’ services to the rate of $125
per hour, instead of the requested $150 per hour.
Il. ANALYSIS
A. Mr. Kattan’s Entitlement to Attorney's Fees
The HCPA provides, “In any action or proceeding brought
under this subsection, the court, in its discretion, may award
reasonable attorneys’ fees as part of costs to the parents or
guardian of a handicapped child or youth who is the prevail-
ing party.” 20 U.S.C. § 1415(e)(4)(B). The District asserts
that, in light of Kay v. Ehrler, an attorney representing
himself is not eligible for a fee award under the HCPA. We
do not find it necessary to consider this issue. We agree with
the district court that the District of Columbia waived its
argument against the availability of fee awards to pro se
litigants by failing to raise it in 1988 in its original opposition
to the Kattans’ motion for fees.
17a
As a preliminary matter, we must address the District of
Columbia’s claim that the district court erred by rejecting its
Rule 59(e) motion to alter or amend the judgement awarding
fees to Mr. Kattan. In that motion, the District asserted that
Kay v. Ehrler represented a change of law that it could not
reasonably have anticipated, and that the Supreme Court
decision required the district court to retract its award of fees
for Mr. Kattan’s services. The district court held that Kay
was not an unanticipated change in the law and that the
District had therefore waived its argument against Mr. Kat-
tan’s entitlement to attorney’s fees by not raising it before
judgment.
We hold that the district court should not have reached the
merits of the District of Columbia’s motion. Rule 59(e) of the
Federal Rules of Civil Procedure states, “A motion to alter or
amend the judgment shall be served not later than 10 days
after entry of the judgment.” Fep. R. Civ. P. 59(e). In this
case, fourteen days passed between the district court’s award
of attorneys’ fees and the District of Columbia’s filing of its
Rule 59(e) motion. The district court therefore should have
rejected the motion as untimely. “Rule 59(e) motions are
expressly limited to the 10-day period following entry of
judgment, and the District Court simply has no power to
extend that time limitation.” Center for Nuclear Responsibil-
ity, Inc., v. United States Nuclear Regulatory Comm’n, 781
F.2d 935, 941 (D.C. Cir. 1986).
Alternatively, the District of Columbia asserts that we
should, in light of the change in law brought about by Kay v.
Ehrler, use our power under 28 U.S.C. § 2106 to review the
issue of a pro se litigant’s eligibility for fees. That section
states, “The Supreme Court or any other court of appellate
jurisdiction may ... vacate, set aside or reverse any judg-
ment, decree, or order of a court lawfully brought before it
for review and direct the entry of such appropriate judgment,
decree or order .... as may be just under the circumstances.”
The District is correct that although we do not ordinarily
pass on issues raised for the first time on appeal, we some-
times do review such issues when a supervening decision
18a
changes the law in the appellant’s favor. On occasion, courts
of appeals have justified this practice partly on the basis of 28
U.S.C. § 2106. See, eg., Pendergrast v. United States, 416
F.2d 776, 780-81 & n.19 (D.C. Cir. 1969), cert. denied, 395
U.S. 926 (1969). More often, appeals courts seem to have
relied primarily on their intrinsic powers to achieve a just
resolution. The Supreme Court noted long ago:
We have frequently held that in the exercise of our
appellate jurisdiction we have power not only to correct
error in the judgment under review but to make such
disposition of the case as justice requires. And in deter-
mining what justice does require, the Court is bound to
consider any change, either in fact or in law, which has
supervened since the judgment was entered.
Patterson v. Alabama, 294 U.S. 600, 607 (1935). See also,
Hormel v. Helvering, 312 U.S. 552, 558 (1941) (“{Our deci-
sions], while recognizing the desirability and existence of a
general practice under which appellate courts confine them-
selves to the issues raised below, nevertheless do not lose
sight of the fact that such appellate practice should not be
applied where the obvious result would be a plain miscarriage
of justice.”); Leary v. United States, 395 U.S. 6, 27-28 (1969);
United States v. Byers, 740 F.2d 1104, 1115-16 n.11 (D.C. Cir.
1984).
In each of the cases cited above, the intervening decision
enunciated a new legal principle that was previously unavail-
able to the appellant, for all practical purposes. The present
case, on the other hand, does not fit this paradigm. In 1988,
at the time it opposed the Kattans’ application for attorneys’
fees, the District of Columbia could have proffered a legiti-
mate argument that such fees were not available to pro se
litigants under the HCPA. There was no reason in 1988 for
the District of Columbia to assume that this Circuit had
conclusively confirmed the availability of a fee award to a pro
se litigant in an EHA suit or other civil rights case.
At the time, the only binding precedent in our Circuit on
the issue of fee awards to lawyers representing themselves
related to the fee-shifting provision of the Freedom of Infor-
19a
mation Act (“FOIA”). Cuneo v. Rumsfeld, 553 F.2d 1360
(D.C. Cir. 1977). That decision held that attorneys acting pro
se could receive fees under FOIA. Jd. at 1366. However,
much of the Court’s-reasoning in that decision related specifi-
cally to the “policy considerations underlying FOIA.” Jd.
Consequently, the District of Columbia had no basis to be-
lieve that Cuneo settled the HCPA question. If the District
wished to claim that Mr. Kattan was ineligible for attorney’s
fees under the HCPA, it should have attempted to distinguish
Cuneo from the present case in the district court. Such an
argument would have been far from frivolous.
Indeed, in 1984, similarly situated litigants, the defendants
in a civil rights action, argued, despite this Circuit’s decision
in Cuneo, that a lawyer representing himself was not entitled
to attorney’s fees under 42 U.S.C. § 1988. Lawrence v.
Staats, 586 F. Supp. 1375 (D.D.C. 1984), affd sub nom.
Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991) (on the
grounds stated by Kay v. Ehrler). Not only did the defen-
dants in Lawrence raise this issue—the district court agreed
with them. Judge Flannery, in a well-reasoned opinion,
explicitly distinguished cases permitting pro se attorneys’ fees
in FOIA suits from cases dealing with fee-shifting in civil
rights actions. He cited a series of cases from other circuits
holding that pro se plaintiffs were not entitled to attorneys’
fees under § 1988, and he stated:
The court finds the statutory analysis and reasoning of
these cases persuasive, and does not believe that this
Circuit’s allowance of attorney fees to pro se litigants in
FOIA cases changes the analysis, since the intent of
Congress and purpose of FOIA and its fee provisions
differ significantly from the intent and purposes of
§§ 1988 and [42 U.S.C. §] 2000e-5(k).
Id. at 1379.
In the present case, the District of Columbia was in a
better position than were the defendants in Lawrence to
realize that a challenge to a pro se plaintiffs attorney’s fees
might succeed, for the District could look to Lawrence itself
as an example. It is also worth noting that the Kattans
20a
flagged the issue in a footnote in their application for fees.
Nevertheless, in its opposition to the Kattans’ application, the
District chose not to raise the question of the availability of
fees for pro se litigants. We agree, therefore, that the
District of Columbia waived the issue of Mr. Kattan’s eligibili-
ty for fees by not raising it in the district court in a timely
manner. Absent “exceptional circumstances,” the court of
appeals is not a forum in which a litigant can present legal
theories that it neglected to raise in proceedings below. See
Director, Office of Workers’ Compensation Programs, U.S.
Dep't of Labor v. Edward Minte Co., 803 F.2d 731, 736 (D.C.
Cir. 1986). No such exceptional circumstances exist in this
case.
B. Ms. Douglass’ Rate
In a cross-appeal, the Kattans allege that the district court
abused its discretion by awarding them attorney's fees for
Ms. Douglass’ work at a rate of $125 per hour. The district
court set Ms. Douglass’ rate at this amount, despite the fact
that the Kattans submitted a declaration stating that Ms.
Douglass’ normal billing rate in her private practice was $150
per hour. For the reasons stated below, we uphold the
district court’s calculation of fees for Ms. Douglass’ services.
The HCPA provides that “fees awarded under this subsec-
tion shall be based on rates prevailing in the community in
which the action or proceeding arose for the kind and quality
of services furnished.” 20 U.S.C. § 1415(e)(4)(C). Both par-
ties agree that an attorney’s usual billing rate is presumptive-
ly the reasonable rate, provided that this rate is “in line with
those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and repu-
tation.” Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984).
The parties disagree as to whether the district court was
justified, under this principle, in setting Ms. Douglass’ rate at
$125 instead of her normal billing rate of $150.
A district court’s discretion as to the proper hourly rate to
award counsel should not be upset absent clear misapplication
of legal principles, arbitrary fact finding, or unprincipled
ee
ee
Z2la
disregard for the record evidence. King v. Palmer, 950 F.2d
771, 786 (D.C. Cir. 1991) (en bane), cert. denied, 112 S. Ct.
1290 (1992) & 112 S. Ct. 3054 (1992). No such problems exist
in the district court’s fee award. The district court applied
the law correctly and considered all the available evidence in
setting the disputed rate.
The following evidence was available for the district court
to consider when it established Ms. Douglass’ rate: (1) an
affidavit submitted by Ms. Douglass, stating her standard
rate of $150 per hour and summarizing her education and
experience; (2) a declaration by a local expert retained by the
Kattans, setting out broad ranges of fees generally charged
by attorneys with various levels of experience in Washington,
D.C.; and (3) reports of similar cases in which fees were
awarded for comparable work.
In its opposition to the Kattans’ application for attorneys’
fees, the District suggested that the district court award Ms.
Douglass’ fees at $75 per hour, the same rate awarded in
Stebbing v. District of Columbia, another EHA case. C.A.
No. 86-2549 (D.D.C. March 2, 1988). The district court,
however, refused to set the rate at $75 per hour, because in
Stebbing “the litigation was not very complicated.” On the
other hand, the district court noted that “other analogous
decisions in this circuit have awarded attorneys’ fees of $125
for partner time.” The court specifically referred to Moore v.
District of Columbia, 674 _F. Supp. 901 (D.D.C. 1987), an
EHA case handled by a leading EHA firm in the District.
The district court further noted that the plaintiffs had failed
to cite a single case in which the fee award was greater than
$125.
“In light of the relevant case law and the affidavits submit-
ted by Ms. Douglass,” the district court reasonably deter-
mined that $125, a figure within the expert’s range for
attorneys with Ms. Douglass’ experience, was the prevailing
community rate for Ms. Douglass’ services. In setting the
fee, the district court considered Ms. Douglass’ professional
history, the complexity of the case, and the fees awarded in
similar cases to attorneys with similar experience. Nothing
22a
more was required. Keeping sight of the deference which we
owe the district court's fee determinations, we find no reason
to overturn the district court’s decision.
Finally, the Kattans contend that the district court erred
by failing, when establishing Ms. Douglass’ rate, to take into
account a subparagraph of the HCPA, 20 U.S.C.
§ 1415(e)(4)(G). That subparagraph provides that the court
should not reduce attorneys’ fees that “unreasonably exceed| ]
the hourly rate prevailing in the community for similar servic-
es by attorneys of reasonably comparable skill, experience,
and reputation,” as it is required to by § 1415(e)(4)(F)(ii), if it
finds that “the State or local educational agency unreasonably
protracted the final resolution of the action or proceeding.”
In 1988, the Kattans, asserting that the District had unrea-
sonably protracted the litigation, moved for sanctions against
the District under 20 U.S.C. § 1415(e)(4)(G), as well as under
28 U.S.C. § 1927 and Rule 11 of the Federal Rules of Civil
Procedure. The Kattans argued in their supporting memo-
randa that the District’s dilatory tactics warranted a greater
fee award than that permitted under the HCPA’s basic fee-
shifting provision.
The Kattans contend that the district court neglected to
consider their § 1415(e)(4)(G) claim. In its order of October
1, 1991, the district court expressly rejected the Kattans’
motion for sanctions, stating that “{aJlthough defendants’
conduct in this case was far from exemplary, it does not rise
to the level of conduct necessary for the imposition of sanc-
tions under Fed. R. Civ. P. 11 or 28 U.S.C. § 1927.” Al-
though the district court did not explicitly mention
§ 1415(e)(4)(G), it implicitly rejected the Kattans’ claim under
that provision as well, since the Kattans relied on all three
provisions in the same motion. In any case, the court clearly
made findings as to the blameworthiness of the District’s
conduct sufficient to reject the Kattans’ § 1415(e)(4)(G) claim.
We are in no position to second-guess the district court’s
judgment as to whether the District of Columbia’s tactics
were unreasonable enough to warrant the award of extra
fees.
23a
III. CONCLUSION
Because the District of Columbia did not contest Mr.
Kattan’s entitlement to attorney’s fees in its original opposi-
tion to the Kattans’ application for fees, we find that the
District waived the issue and cannot raise it for the first time
on appeal. We further hold that the district court was
justified in setting Ms. Douglass’ fees at $125 per hour. We
therefore uphold the district court’s fee award in all respects.
It is so ordered.
24a
Circuit Judge D. H. Ginspurc, concurring in part and
dissenting in part: The district court decided that Kay v.
Ehrier, 111 S. Ct. 1435 (1991), in which the Supreme Court
held that a pro se litigant is not entitled to an attorney’s fee
under 42 U.S.C. § 1988, does not bar the award of an
attorney's fee to a pro se litigant under the Handicapped
Children’s Protection Act. The reason? Simply that “plain-
tiffs’ motion for fees is based on the EHA, a different
statutory scheme from that which formed the basis of the
Kay v. Ehrler decision.” Kattan v. District of Columbia, No.
88-0630 (D.D.C. December 11, 1991), slip op. at 3. This is the
proverbial distinction without a difference.
The fee-shifting provision of the HCPA is practically identi-
cal to that of § 1988, and the Supreme Court has long
required that similar fee-shifting provisions in federal stat-
utes be interpreted in the same way. See, e.g., Independent
Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758
n.2 (1989) (“We have stated that fee-shifting statutes’ similar
language is ‘a strong indication’ that they are to be interpret-
ed alike”); Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983)
(same standards for awarding attorney's fee apply under all
statutes authorizing award of fee to a “prevailing party”);
Northcross v. Board of Education, 412 U.S. 427, 428 (1973)
(similarity in wording of two statutory fee-shifting provisions
is a “strong indication that the two statutes should be inter-
preted pari passu”’).
The Court in Kay v. Ehrler-also stated that “the word
‘attorney’ assumes an agency relationship, and it seems likely
that Congress contemplated an attorney-client relationship as
the predicate for an award under § 1988.” 111 S. Ct. at 1437.
I see no reason to think that the word “attorney” in the fee-
shifting provision of § 1988 has a different meaning than it
has in the fee-shifting provision of the HCPA. The district
court’s cursory “analysis” surely offers none.
The district court’s grant of a fee for the work performed
by Mr. Kattan was clearly an error. The court, however,
declines to reach the merits of that question, see Ct. Op. at 5,
holding that “the District of Columbia waived the issue of Mr.
25a
Kattan’s eligibility for fees by not raising it in the district
court in a timely manner.” Ct. Op. at 8. I disagree.
The District of Columbia had no reason in 1988 to antici-
pate that the Supreme Court would in 1991 change the law of
this circuit, which then authorized the district court to award
an attorney’s fee to a pro se litigant. On the contrary, the
district court was clearly bound both by Cuneo v. Rumsfeld,
553 F.2d 1360 (D.C. Cir. 1977), which held that a pro se
lawyer was eligible for fees under the Freedom of Informa-
tion Act, and by the Supreme Court’s longstanding command
that similarly-worded fee-shifting provisions are to be treated
alike. The distinction the district court drew in Lawrence v
Staats, 585 F. Supp. 1875 (D.D.C. 1984), between the fee
provision of the FOIA and that of § 1988 ran contrary to the
Supreme Court’s approach. See Lawrence v. Bowsher, 931
F.2d 1579, 1580 (D.C. Cir. 1991) (affirming “[sJolely” on the
basis of intervening Supreme Court decision in Kay v. Ehrier,
which overruled Cuneo). But see Ct. Op. at 7 (lauding the
district court for “a well-reasoned opinion” in Lawrence v.
Staats ).
It is simply unreasonable to penalize the District of Colum-
bia for failing to have argued a distinction (between the fee
provision of the FOIA and that of the HCPA) that the district
court would have been required to reject under Supreme
Court and circuit precedent. By holding that the District
waived the issue of Mr. Kattan’s eligibility for fees, the court
is in effect punishing a litigant for not making what would
have been at the time an almost frivolous argument.
Finding no waiver of the District’s objection, I respectfully
dissent from the court’s decision affirming the award of an
attorney’s fee to the pro se plaintiff.
26a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civit Action No. 88-0630 (JHG)
SARAH KATTAN, et al,
Plaintiffs,
ve
Tue District or CoLumBiaA, et al,
Defendants.
MEMORANDUM OPINION
On August 9, 1988, the Court issued a Memorandum Opi-
nion, 691 F. Supp. 1539 (D.D.C. 1988), granting plaintiffs
relief under the Education for All Handicapped Children Act
(*“EHA"), 20 U.S.C. $§ 1400-61. Although the Court at that
time noted that plaintiffs were entitled to attorneys’ fees and
costs pursuant to 20 U.S.C. § 1415(e)(4)(B), the amount of
the fee awaited full briefing. Presently pending are plaintiffs’
application for fees and costs and plaintiffs’ renewed motion
for sanctions. For the following reasons, plaintiffs shall be
awarded attorneys’ fees and costs in the amount of
$90,488.83, and plaintiffs’ renewed motion for sanctions is
denied.
I. DISCUSSION
Pursuant to 20 U.S.C. $1415(e)(4)(B), ‘In any action or pro-
ceeding brought under this subsection, the court, in its discre-
tion, may award reasonable attorneys’ fees as part of the
costs to the parents or-guardian of a handicapped child or
youth who is the prevailing party.’”'
First, the Court must consider whether the applicants are
prevailing parties. As the Supreme Court has suggested,
No bonus or multiplier may be used in calculating the fees awarded
under this section. See 20 U.S.C. § 1415(e4)(C).
27a
[Plaintiffs may be considered ‘prevailing parties’ for at-
torney’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 (1983) (citation omitted); Medford v. District of Colum-
bia, 691 F. Supp. 1473, 1479 (D.D.C. 1988). In the instant
case, it is clear that although plaintiffs were not awarded
all of the requested relief, they have succeeded on a signifi-
cant issue: Plaintiff, Sarah Kattan, was placed in Ivymount
School at defendants’ expense.
Next, the Court must next discern whether the requested
fee is reasonable. In calculating the appropriate fee, the Court
should consider the reasonable hourly rate of the lawyers,
the adequacy of the documentation in support of the appli-
cant’s fee request, and the number of hours the lawyers
reasonably expended. See Hensley, 461 U.S. at 433: Holmes
v. District of Columbia, 680 F. Supp. 40, 44 (D.D.C. 1988).
Defendants argue that plaintiffs’ petition is deficient in all
three respects.
In evaluating the reasonableness of the hourly rate, the
Court may look to ‘‘the level of skill necessary, time limita-
tions, the amount to be obtained in the litigation, the at-
torney’s reputation, and the undesirability of the case.”
Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980).
Althongh plaintiffs{’] counsel have requested $150 per hour
for the work of Ms. Douglass and $125 per hour for Mr.
Kattan’s services, defendants maintain that plaintiffs[ | are
entitled to no more than $90 and $75 respectively for their
services. The Court cannot accept either parties’ position.
Although defendants suggest that the fees awarded in a
similar litigation, Stebbing v. District of Columbia, No.
86-2549, slip. op. (Mar. 2, 1988), where the prevailing party
was awarded $100 per hour for partner time and and $70 per
hour for associate time, is controlling, the Court cannot agree.
In Stebbing, the Court emphasized that the litigation was
not very complicated. In fact, only a few pleadings had been
filed in that case. On the other hand, plaintiffs have failed
28a
to cite a single case in which the fee award was greater than
$125 per hour.
It is clear that $125 per hour represents an appropriate
rate for Ms. Douglass’ services. Ms. Douglass has had more
than thirteen years of experience, mostly in the area of civil
litigation. In addition, she billed at $165 to $180 per hour
before practicing law as a sole practitioner. And E. Joseph
Kallas, a partner in the Law Firm Services Group of Price
Waterhouse, who does consulting and survey work with
several dozen Washington, D.C. firms, has suggested that
a senior associate would bill within a range of $110 to $175
and that an attorney who has been a partner for three or more
years would bill within a range of $135 to $250. Declaration
of E. Joseph Kallas, Application, Exhibit E. Moreover, other
analogous decisions in this circuit have awarded attorneys’
fees of $125 for partner time.’ In light of the relevant case
law and the affidavits submitted by Ms. Douglass, the Court
concludes that $125 per hour is the prevailing community
rate for Ms. Douglass’ services.
The prevailing community rate for Mr. Kattan is somewhat
more difficult to determine. Plaintiffs contend that Mr.
Kattan’s services are worth $125 per hour while defendants
maintain that he is only entitled to $75 per hour. The Court,
again, cannot accept either party's position.
Although Mr. Kattan has no billing history to guide the
Court in setting a reasonable hourly rate, plaintiffs have pro-
vided the Court with evidence of Mr. Kattan’s impressive
educational and legal background to substantiate plaintiffs’
fee request of $125 per hour.’ In addition, according to Mr.
* See, e.g., Moore v. District of Columbia, 674 F. Supp. 901 (D.D.C. 1987).
’Mr. Kattan graduated cum laude from the Northwestern University
School of Law in 1976. He served as a Bigelow Teaching Fellow and
Instructor at the University of Chicago Law School until 1977. From 1977
to 1978 he was a Fellow in Public Policy Studies at the Committee on
Public Policy Studies at the Univergty of Chicago. From 1978 to 1984,
Mr. Kattan worked at the Office of Hearings and Appeals of the United
States Department of Energy, serving as Assistant Director from 1980
{Footnote continued on the next page]
29a
Kattan’s current job performance, he received an “‘outstand-
ing’’ overall performance evaluation as a Senior Antitrust
Attorney at the FTC. Finally, Mr. Kattan was the sole
counsel prior to April 22, 1988, and he was the sole author
of plaintiffs’ pleadings prior to that date.‘
Although Mr. Kattan’s increased participation necessi-
tates a higher fee award than the typical $75 per hour ‘‘asso-
ciate counsel’’ rate, Mr. Kattan’s activities do not merit the
$125 per hour rate requested. The Court has evaluated $125
per hour to Ms. Douglass as reasonable hourly compensa-
tion, and plaintiffs have admitted that Mr. Kattan’s role was
subordinate to Ms. Douglass. Accordingly, based on Mr. Kat-
tan’s declaration and the supporting affidavits, the
reasonable hourly rate for his services is evaluated at $100
per hour, this rate reflecting the prevailing community stan-
dard for similar work.
Defendants next challenge both the documentation of the
hours claimed in plaintiffs’ application and plaintiffs’ bill-
ing judgment in preparing the application.
Defendants’ contention that plaintiffs’ application is not
properly documented is wholly without merit. As required,
plaintiffs[ ] have submitted time records that reveal the
amount of time expended, a short description of how that
time was utilized, the date of the work, and the name of the
attorney responsible for the services. See Moore, 674 F. Supp.
at 904-05. Furthermore, these records were prepared contem-
poraneously and were totalled daily.
[Footnote continued from the previous page]
to 1984. Since 1984, he has been employed at the Federal Trade Commis-
sion (““FTC"’), and is currently a senior antitrust attorney in the Planning
Office of the Bureau of Competition of the FTC. See Declaration of Joseph
Kattan Pursuant To 28 U.S.C. § 1746 (‘Kattan Decl."’), Application, Ex-
hibit B, at ¢ 12.
* These pleadings included plaintiffs’ complaint; plaintiffs’ motion for
a preliminary injunction; plaintiffs’ first set of requests for interrogatories
and document production; and plaintiffs’ application for permanent in-
junction. See Kattan Decl., at € 7.
30a
expended.’ '’ See Hensley, 461 U.S. at 433-34 (citation omit-
ted). Specifically, the Court cannot conclude that the hours
expended in pursuing plaintiffs’ renewed motion for sanc-
tions represents a legitimate cost. Although defendants’ con-
duct in this case was far from exemplary, it does not rise
to the level of conduct necessary for the imposition of sanc-
tions under Fed. R. Civ. P. 11 or 28 U.S.C. § 1927. Thus,
plaintiffs’ renewed motion for sanctions is denied, and plain-
tiffs’ hours, and requested compensation, shall be reduced
by the amount of time expended in pursuit of sanctions. This
results in a reduction of 14.5 hours for Ms. Douglass and
32 hours for Mr. Kattan.”
For all hours other than those spent in conjunction with
plaintiffs’ work on motions for sanctions, the Court is
satisfied that plaintiffs have exercised reasonable billing
judgment and have claimed only ‘‘reasonable hours."’ Plain-
tiffs| | have provided the Court with detailed documentation
of their billing judgment and have cited the numerous hours
omitted from the fee application. Moreover, although defen-
dants have raised several objections in response, their objec-
tions consist of arbitrary, conclusory assertions regarding
the amount of time that plaintiffs ‘‘should have spent’’ on
certain documents and. litigation tasks. And it is ‘‘neither
practical nor desirable to expect the trial court judge to
[review] each paper in this massive case file to decide, for
example, whether a particular motion could have been done
in 9.6 hours instead of 14.3 hours.’’ Copeland, 641 F.2d at
903. Accordingly, the total number of hours reasonably
exercised by the plaintiffs’ counsel are 304 hours for Ms.
Douglass and 430.5 hours for Mr. Kattan, and the lodestar
amounts are $38,000 for Ms. Douglass and $43,050 for Mr.
Kattan.
In addition to the lodestar amounts detailed above, plain-
tiffs also seek reimbursement of $6,346.83 in costs paid
* These figures represent the best efforts of the Court to determine the
amount of time spent on plaintiffs’ original motion for sanctions, volun-
tarily withdrawn by plaintiffs without prejudice on April 15, 1988, as well
as the amount of time spent on plaintiffs’ renewed motion for sanctions.
3la
by Ms. Douglass and $3,092 in costs paid by Mr. Kattan,
including inter alia, expert witness fees, postage fees, copy-
ing fees, messenger fees, transportation fees, and court
reporter fees. It is clear that plaintiffs are entitled to all
expenses associated with the litigation.
Defendants concede that plaintiffs are entitled to $3,092
of costs to Mr. Kattan, and this sum is indeed a reasonable
expense of litigation ‘‘that they would normally expect to
pass on to fee paying clients."’ McKenzie v. Kennickell, 645
F. Supp. 437, 452 (D.D.C. 1986) (citation omitted). As for
the remaining costs, however, defendants contend that
$1,264 is unwarranted. Specifically, defendants object to the
expert witness fee to Price Waterhouse for the Declaration
of E. Joseph Kallas.
Although defendants label this expenditure “unnecessary
and excessive,” the expenditure is reasonable in light of plain-
tiffs’ burden of proof regarding ‘prevailing community rate’
in the attorneys’ fees request. See Blum v. Stenson, 465 U.S.
886 (1984). Moreover, this expense also would, in the usual
course, be passed on to the fee paying client, and thus, Ms.
Douglass is entitled to full reimbursement for her costs.
Il. CONCLUSION
For the reasons set forth above, it is hereby
ORDERED that plaintiffs’ application for attorneys fees
is granted in the total amount of $90,488.83; and it is
FURTHER ORDERED that plaintiffs’ renewed motion
for sanctions is denied.
A separate judgment accompanies this memorandum.
IT SO ORDERED.
OcroBer 16, 1991.
/s/ Joyce Hens Green
Joyce Hens GREEN
United States District Judge
[Fitep: Ocroser 17, 1991]
32a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civit. Action No. 88-0630 (JHG)
SARAH KATTAN, et al,
Plaintiffs,
v.
Tue District or CoLuMBIA, et al,
Defendants.
JUDGMENT
In accordance with the Memorandum Opinion issued this
date, judgment is entered in favor of plaintiffs and against
defendants in the amount of ninety thousand, four hundred,
eighty-eight dollars and eighty-three cents ($90,488.83).
IT IS SO ORDERED.
OcToBER 16, 1991.
s/ Joyce Hens Green
Joyce Hens GREEN
United States District Judge
[Fitep: Ocroser 17, 1991]
j
33a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civit Action No. 88-0630 (JHG)
SARAH KartTTAn, et al.
Plaintiffs,
V.
Tue District or CoLumsia., et al,
Defendants.
ORDER
On August 9, 1988, the Court issued a Memorandum
Opinion, 691 F. Supp. 1539 (D.D.C. 1988). granting plain-
tiffs relief under the Education for All Handicapped Children
Act (“EHA"’), 20 U.S.C. §§ 1400-61. On October 16. 1991,
the Court issued another Memorandum Opinion, granting
plaintiffs’ application for attorneys’ fees in the total amount
of $90,488.83.
Presently pending are plaintiffs’ motion to correct clerical
mistake and defendants’ motion to alter or amend the Oc-
tober 16, 1991 decision. For the following reasons, plaintiffs’
motion is granted in part, and defendants’ motion is denied.
In defendants’ motion for reconsideration. they urge the
Court to extend the rationale and application of Kay v.
Fhrler, 111 S. Ct. 1435 (1991) to the instant case. In Kay
v. Ehrler, an attorney who had been denied a place on the
ballot for the Democratic presidential primary in Kentucky
brought an action seeking to declare unconstitutional the
Kentucky statute upon which the denial had been based. He
initially appeared pro se, but later hired an attorney to repre-
sent him. After mounting a successful constitutional
challenge, he applied for attorneys’ fees under 42 U.S.C.
§ 1988. The Supreme Court upheld the District Court's
decision to award fees only to plaintiff's retained counsel,
34a
reasoning that denying the petitioner attorney's fees for his
pro se representation would create an incentive for civil rights
victims to retain counsel in subsequent cases.
The Court cannot agree with defendants that the analysis
of Kay v. Ehrler shouid be applied to the instant case. First,
in defendants’ original opposition to plaintiffs’ motion for
fees and costs, they conceded that attorneys’ fees were
available under 20 U.S.C. $1415(e). In addition, they agreed
that plaintiffs were entitled to an award of fees and costs.
In fact, they had indicated their willingness to explore set-
tlement of plaintiffs’ application. Nowhere in their opposi-
tion did defendants argue that Mr. Kattan should recover
nothing because he was representing himself. Rather, defen-
dants only disputed the hourly rates requested and the total
number of hours expended.
It is well settled that a motion to amend judgment is not
to be used to raise new arguments that could, and should
have been raised before judgment. Thus, it appears that
defendants have waived the argument they now advance by
failing to raise it at the appropriate time.’
In any event, plaintiffs’ motion for fees is based on the
EHA, a different statutory scheme from that which formed
the basis of the Kay v. Ehrler decision. And defendants have
not cited any legislative history or caselaw that supports
defendants’ argument to extend the ambit of Kay v. Ehrler
to EHA cases. Consequently, defendants’ motion to alter or
amend the judgment must be denied.
Plaintiffs also request that the Court amend its judgment
of October 16, 1991 to correct a clerical error. Specifically
plaintiffs contend that the Court overlooked plaintiffs’
request for additional fees and costs incurred by Ms.
' Although defendants further argue that their Rule 59 motion is based
on a change of law not reasonably anticipated by the defendants, this
District had ruled in 1984 that attorneys representing themselves are not
entitled to attorneys’ fees under 42 U.S.C. § 1988. See Lawrence v. Staats,
586 F. Supp. 1375, 1378-80 (D.D.C. 1984), aff'd in relevant part, 931 F.2d
1579 (D.C. Cir. 1991).
—— eae
35a
Douglass in preparing a reply to defendants’ opposition
toplaintiffs’ application for fees, which reply was filed on
November 7, 1988.?
The Court intended to compensate plaintiffs for their fees
reasonably expended and costs incurred in preparing plain-
tiffs’ application and reply. However, as plaintiffs correctly
point out, the Court did not intend to compensate plaintiffs
for the time expended in preparing their renewed motion for
sanctions. Accordingly, plaintiffs shall be entitled to addi-
tional compensation for 13.75 hours, totalling $1,718.75, and
$192.48 for additional costs.
Accordingly, for the reasons expressed herein, it is hereby
ORDERED that defendants’ motion to alter or amend
judgment is denied; it is
FURTHER ORDERED that plaintiffs’ motion to correct
clerical mistake is granted in part; and it is
FURTHER ORDERED that plaintiffs’ application for
attorneys’ fees shall be granted in the total amount of
$92,400.06.
An amended judgment, intended to supercede the judg-
ment entered on October 30, 1991, accompanies this Opinion.
IT IS SO ORDERED.
DeceMBER 11, 1991.
s/ Joyce Hens Green
Joyce Hens Green
United States District Judge
’ Plaintiffs’ additional request for fees is noted at footnote 1 on page
| of Plaintiffs’ Reply Memorandum in Support of Renewed Motion for
Sanctions.
36a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civit Action No. 88-0630 (J HG)
SARAH KATTAN, et al,
Plaintiffs,
V.
Tue District or CoLuMBIA, et al,
Defendants.
AMENDED JUDGMENT
In accordance with the Order issued this date, judgment
is entered in favor of plaintiffs and against defendants in the
amount of ninety-two thousand, four hundred dollars and
six cents ($92,400.06).
IT IS SO ORDERED.
DECEMBER 11, 1991.
s/ Joyce Hens Green
JoYycE HENS GREEN
United States District Judge
37a
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA C'RCUIT
SEPTEMBER TERM, 1993
No. 92-7011
SARAH KATTAN, BY HER PARENTS
AND NEXT FRIENDS SUSAN J. THOMAS
AND JOSEPH Kattan, et al.
Vv.
District or CotumBIA,
A MUNICIPAL CORPORATION, et al,
Appellants
AND CONSOLIDATED Case No. 92-7012
Before: Mikva, Chief Judge; D. H. Ginspurc AND
SENTELLE, Circuit Judges.
ORDER
Upon consideration of the petition for rehearing of the
District of Columbia, it is
ORDERED, by the Court, that the petition is denied.
Per Curiam
For The Court:
Ron Garvin, Clerk
/s/ By: Linda Jones for
Rosert A. BONNER oe
Deputy Clerk
Circuit Judge D. H. Ginsburg would grant the Petition for
Rehearing.
Fitep: Ocroper 6, 1993
38a
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1993
No. 92-7011
SARAH KATTAN, BY HER PARENTS
AND NEXT FRIENDS SUSAN J. THOMAS
AND JOSEPH Kattan, et al.
V.
District OF COLUMBIA,
A MUNICIPAL CORPORATION, et al,
Appellants
AND CONSOLIDATED CASE No. 92-7012
Before: Mikva, Chief Judge; WALp, Epwarps, SILBER-
MAN, BuckLey, Wit.iiamMs, D. H. GinsBurG, SENTELLE,
HENDERSON, AND RANDOLPH, Circuit Judges.
ORDER
The Suggestion For Rehearing En Banc of the District of
Columbia has been circulated to the full court. The taking
of a vote was requested. Thereafter, a majority of the judges
of the court in regular active service did not vote in favor
of the suggestion. Upon consideration of the foregoing it is
ORDERED, by the Court en banc, that the suggestion is
denied.
Per Curiam
For The Court:
Ron Garvin, Clerk
/s/ By: Linda Jones for
RosBert A. BONNER Sin
Deputy Clerk
Circuit Judge Williams would grant the suggestion.
Fitep: OcroBer 6, 1993
39a
Supreme Court of the United States
No. A-433
District or COLUMBIA, et al,
Petitioners,
V.
SARAH KATTAN, ETC., et al
ORDER
UPON CONSIDERATION of the application of counsel
for the petitioners,
IT IS ORDERED that the time for filing a petition for
a writ of certiorari in the above-entitled case, be and the same
is hereby, extended to and including February 3, 1994.
/s/ William H. Rehnquist :
Chief Justice of the United States
DATED THIS 23RD DAY OF NOVEMBER, 1993.
40a
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1993
No. 92-7011
SARAH KATTAN, BY HER PARENTS
AND NEXT FRIENDS SUSAN J. THOMAS
AND JOSEPH KaTTAN, et al.
¥.
District oF COLUMBIA,
A MUNICIPAL CORPORATION, et al.
Appellants
AND CONSOLIDATED CaAsE No. 92-7012
Before: Mikva, Chief Judge; D. H. GinspurG AND
SENTELLE, Circuit Judges.
ORDER
Upon consideration of appellants’ motion to clarify and
to vacate, it is
ORDERED, on the court’s own motion, that the District
of Columbia submit a supplemental memorandum of no more
than five pages setting forth any argument that it was unable
to make in its petition for rehearing/suggestion for rehear-
ing en banc because it did not receive the court's June 30,
1993, order. The supplemental memorandum shall be filed
on or before December 16, 1993.
Per Curiam
For the Court:
Ron Garvin, Clerk
/s/ By: Linda Jones
LINDA JONES
Deputy Clerk
Fitep: DECEMBER 9, 1993
|
4la
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1993
USDC CV 88-0630
No. 92-7011
SARAH KATTAN, BY HER PARENTS
AND NEXT FRIENDS SusSAN J. THOMAS
AND JOSEPH Kattan, et al
Vv.
District oF Co_uMBIA,
A MUNICIPAL CORPORATION, et al,
Appellants
AND CONSOLIDATED CASE No. 92-7012
Before: Mixva, Chie
f Judge; GINsBuRG AND SENTELLE,
Circuit Judges.
ORDER
Upon consideration of appellants’ Motion to Clarify and
to Vacate, filed November 22, 1993, and appellants’
supplemental memorandum filed on December 14, 1993, it is
ORDERED, by the Court. that the motion is denied.
Per Curiam
For The Court:
Ron Garvin, Clerk
/s/ By: Robert A. Bonner
Rosert A. Bonner
Deputy Clerk
FILED: DECEMBER 21, 1993
a Pees
42a
Excerpts From
GENERAL DOCKET
UNITED STATES COURT OF APPEALS
FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 92-7011
DATE FiLINGS— PROCEEDINGS
(cb)06-15-93 Opinion for the Court filed by Chief Judge
Mikva. Circuit Judge D.H. Ginsburg concur-
ring and dissenting in part.
(cb)06-15-93 Judgment for the Court that the judgment
of the district court is hereby affirmed, in
accordance with the opinion for the Court
filed herein this date.
(cb)06-15-93 Order delaying mandate.
(W)06/29/93 5-Appellee/Cross-Appellant’s bill of cost
(m-29) [9]. :
(H)07/08/93 20-Appellee/Cross-Appellant’s (D.C.) petition
for rehearing and suggestion for rehearing En
Banc (m-08) [1].
(H)07/12/93 5-Appellant/Cross-appellee’s (D.C.) response
to Bill of Costs (m-12) [9].
(H)10/06/93 Per curiam Order that the petition for rehear-
ing filed by the District of Columbia is denied.
(Mikva, Chief Judge; D.H. Ginsburg and
Sentelle, Circuit Judges. (Circuit Judge
Ginsburg would grant the petition for rehear-
ing).
(H)10/06/93 Per Curiam Order En Banc that the sugges-
tion for rehearing En Banc of the District of
Columbia is denied. (Circuit Judge Williams
would grant the suggestion).
LL
DATE
(W)11/22/93
(W)12/02/93
(N)12/09/93
43a
FiLINGS—PROCEEDINGS
5-Appellant’s motion to clarify and to vacate
(m-22) [1].
5-Appellee’s response to motion to clarify and
to vacate and alternate suggestions as to
appropriate procedures (m-02) [1].
Per Curiam Order to clarify and vacate, it is
ORDERED on the court’s own motion that
DC submit a supplemental memorandum of
no more than 5 pages setting forth any argu-
ment that it was unable to make in its peti-
tion for rehearing/suggestion for rehearing en
banc because it did not receive the court’s
6/30/93 order. Before: Mikva, Chief Judge;
D.H. Ginsburg and Sentelle, Circuit Judges.
SEE ORDER FOR DETAILS.
—
'f
No. 93-1296
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1993
DISTRICT OF COLUMBIA, et ai.,
Petitioners,
SARAH KATTAN, BY HER PARENTS
AND NEXT FRIENDS, SUSAN J. THOMAS
AND JOSEPH KATTAN, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUII
BRIEF IN OPPOSITION
PATRICIA D. DOUGLASS
1029 - 31st Street, N.W.
Washington, D.C. 20007
(202) 965-3300
; Counsel for Respondents.
March 16, 1°44
Washington, 0.C. « THIEL PRESS ¢ (202) 328-3286
i) g
(1)
COUNTERSTATEMENT OF THE QUESTION
PRESENTED FOR REVIEW
Must a court of appes.s reverse a district court’s «xer-
cise of its discretionary power to award attorneys’ fees
where the district court found that the defendants below
waived any objection to the fees based on the pro se
nature of the representation by ignoring judicial auth-
ority in that same court su»porting such an objection and
by failing to object to the award on such grounds before
judgment?
(1)
Page
TABLE OF CONTENTS oo
COUNTERSTATEMENT OF THE QUESTION
PRE RIE m? POR REVIEW. ccc ccc crc eres sccsees i
a a ee 0hé6 K-46 oh RAR oe ii
Dasa ete Ge Bee GAD 66 0.6 00 hehe eee eeaneeees 2
REASONS WHY THE PETITION SHOULD BE DENIED..... 7
I. The Decision Below Does Not Raise the
Question Presented by Petitioners................. 8
II. The Petition Requests Review of Matters Left
to the District Court’s Discretion................ 11
III. The Court of Appeals Properly Declined To
Exercise Its Discretionary Power under 28
U.S.C. §2106 To Afford Relief to Petition-
ers, Because Justice Under the Circumstances
Would Not Be Served Thereby................4-. 12
IV. The Court of Appeals’ Decision Is Not in Con-
flict With Any Decision of This Court or of
Any Other Court of Appeals on the Same
I eee oe earn ek ohn ia bee 6a a a ee el eee 13
A. There is no conflict with this Court’s
es oo on eh ST moe eer ne core gers ee 14
B. There is no conflict with the decisions of
oe PT TC CTE EE COE Tee ee 17
V. This Case Does Not Present Any Special Or
Important Reasons For Granting Review........... 20
eo Bt PEP EPRCTIOCEEOT TCT Cee er eee 24
TABLE OF AUTHORITIES
Cases:
Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300
CFOs SO EN s be web dan ar eee eee eee 11
Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977) .. 4-5, 8-10
District Bd. of Educ. v. Rowley, 459 U.S. 176 (1982) ....... 2
(112)
Cases, continued: _Page
Elder v. Holloway, 62 U.S.L.W. 4149 (February 23,
DPE Citesewencee even ei wear euverceenees 16-17
Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991) ........... 11
Fogerty v. Fantasy, Inc., 62 U.S.L.W. 4153 (March 1,
a 7,11
Hormel v, Helvering, 312 U.S. 552 (1941) .............. 14
Kattan by Thomas v. D.C., 691 F. Supp. 1539 (D.D.C.
ee aaa hea bob ake.b ek o 6 b 60 6 048-4 6 6 ees 3, 12
Kay v. Ehrier, 111 §.Ct. 1495 (1991) ......7....... passim
Lawrence v, Staats, 586 F. Supp. 1375 (D.D.C. 1984),
affirmed sub nom Lawrence v. Bowsher, 931 F.2d
See EE nee ccaeereeuaetecwns 5, 6, 9-10
Leary v. United States, 395 U.S. 6 (1969) .............. 15
Mariani-Giron v. Acavedo-Ruiz, 945 F.2d 1 (1st Cir.
Cahir s bie aes 6666 o ¥. 6 oe Se Sa 06-0 8 a's 11
Mormns v. American National Can Corp., 988 F.2d 50 (8th
OL AE eS a ere 19-20
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)..... 15-16
Pennsylvania v. Delaware Valley Citizens’ Council for
oe Oe a eo) 19
Temkin v, Frederick County Commr’s, 945 F.2d 716
| EP ee eae ee ee Te ETE Tee 11
United States Nat’l Bank of Oregon v. Independent Ins.
rn BE, RPO UEUOEN 6 tec ceencevevceeses 12
Weaver v. Bowers, 657 F.2d 1356 (3rd Cir. 1981)....... 18-20
Youmans v. Simon, 791 F.2d 341 (5th Cir. 1986)......... 11
Statutes and Rules:
The Education for All Handicapped Children Act, 20 U.S.C.
§ 1400 et seg., now named the Individuals with
PD CED PAs cca eve ev eves eeseeee passim
ee ees cee sade seb tee seeds 2
(tv)
Statutes and Rules, continued: Page
20 U.S.C. § 1415(b)(1)(E) and (2) ..............24. 2
SO UBL. SIGIGIEMOIB). 2. ccc ccccccuccceveces +
OP See a eo 6 00 bee kbc ce ateeene 3, 7, 12-13
ee eer ee err re ere 5, 6,9
fe OR SS PTT PERCE ORE TTC CTE ere 22
Se Bhp PU PN Oe Cee ede eet eeeccesteceas ent 10
Rule 1Z(—) and Gh), Fed. BR. Civ. FP... ww ccc ccc cecees 22
a aa Pe SS noe cbs eee a een wee eeu cete na 22
ee es es ee OG Oi es clan od cee deeenew beeen passim
Articles:
Annot.: Award of Attorneys’ Fees to Pro Se Litigants
Under 42 U.S.C. §1988, 82 ALR Fed 800 (1987). .... 9,10
Annot.: When Will Federal Court of Appeals Review Issue
Raised By Party for First Time on Appeal Where Legal
Developments After Trial Affect Issue, 76 ALR Fed
Oe CEN die wn hee dS oe Chee eee weees 13
Comment, Awarding Fees to the Self-Represented Attorney
Under the Freedom of Information Act, 53 George
Washington L. Rev. 291 (1984-85)................. 9
Comment, Pro Se Can You Sue?: Attorney Fees for Pro Se
Litigants, 34 Stanford Law Rev. 659 ee 9
Dobbs, Awarding Attorney Fees Against Adversaries: Intro-
ducing the Problem, 1986 Duke L.J. 435 (1986)........ 9
No. 93-1296
IN THE
SUPREME COUKT OF THE UNITED STATES
OCTOBER TERM, 1993
DISTRICT OF COLUMBIA, et al.,
Petitioners,
SARAH KATTAN, BY HER PARENTS
AND NEXT FRIENDS, SUSAN J. THOMAS
AND JOSEPH KATTAN, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF RESPONDENTS
SARAH KATTAN ET AL.
IN OPPOSITION
Respondents Sarah Kattan and her parents Susan J.
Thomas and Joseph Kattan respectfully request that this
Court deny the petition for a writ of certiorari seeking
review of a decision of the United States Court of
Appeals for the D.C. Circuit.
]
2
STATEMENT OF THE CASE
At trial of this case in 1988, Sarah Kattan was a five-
year old girl suffering from multiple disabilities. Peti-
tioners, the District of Columbia and its officials, had
evaluated Sarah and selected an educational program for
her which they represented would meet her needs. Her
parents unsuccessfully challenged the appropriateness
of the placement at an administrative hearing, and then
brought suit in the district court as parents and next
friends of Sarah pursuant to 20 U.S.C. §1415(e).!
Mr. Kattan and Ms. Thomas were also Plaintiffs in the dis-
trict court action in their individual capacities as the
beneficiaries of various procedural rights provided by the
EHA.?
At the administrative stages of the case and in the early
weeks of the district court action, Mr. Kattan — at the
time an attorney with the U.S. Federal Trade Commis-
sion — represented the Plaintiffs. At the suggestion of
I The Education for All Handicapped Children Act, 20 U.S.C.
§ 1400 et seg. (‘“‘EHA’’), required each state and local public school
district receiving federal funds to provide all children with a free
education “appropriate” to their needs. 20 U.S.C. §1412. District
Bd. of Educ. v. Rowley, 459 U.S. 176, 188-89 (1982).
The EHA has been renamed the Individuals with Disabilities
Education Act. See Petition at N.1. For simplicity and for consis-
tency with the decisions below, in this Opposition we continue to
refer to the statute as EHA.
2 The parents of a handicapped child have the right to an
impartial administrative hearing to test the appropriateness of their
child’s placement. 20 U.S.C. §1415(b)(1)(E) and (2). And if the
child prevails in a district court action challenging the placement,
the district court is given discretion to award reasonable attorneys’
fee to that child’s parents. 20 U.S.C. §1415(e)(4)(B).
The EHA thus creates a substantive right to an appropriate
education that runs to the handicapped child and certain proced-
ural protections to ensure the availability of that right that run to
the parents.
3
the district court, he subsequently associated co-counsel,
and he and co-counsel jointly brought the case to judg-
ment on the merits. The district court’s decision on the
merits, dated August 9, 1988, included a holding that the
Plaintiffs’ “request for reasonable attorneys’ fees and
costs associated with the action will be granted’ in an
amount to be determined through subsequent filings, as
necessary.’* Plaintiffs’ ‘attorneys’? were, of course,
none other than Mr. Kattan and his co-counsel. No appeal
was taken from this decision.
When the Kattans submitted their fee application, Peti-
tioners attacked it on multiple grounds, arguing at length
why the amounts sought were excessive. Petitioners
390 U.S.C. § 1415(e)(4)(B) provides, in relevant part, that in
a civil action to enforce the EHA brought under §1415, “the
court, in its discretion, may award reasonable attorneys’ fees as
part of the costs to the parents . . . of a handicapped child or youth
who is the prevailing party.” (emphasis added)
*Kattan by Thomas v. D.C., 691 F. Supp. 1539, 1547,
1548 (D.D.C. 1988). This decision on the merits is important to a
meaningful consideration of this Petition for Certiorari. The dis-
trict court granted extensive relief to the Kattans under the EHA,
and made it clear that the Defendants below, Petitioners here,
forced the Plaintiffs to prove a negative — that the District of Col-
umbia could not and would not provide Sarah with an appropriate
educational program — in the face of overwhelming evidence that
Defendants well knew that there was in fact no program such as
that promised to Sarah in place in the District of Columbia and
that hundreds of other children needing identical services were not
receiving them.
The vigor with which Petitioners defended the merits of the
case beiow was presented to the Court of Appeals for its consider-
ation as relevant to its review of the district court’s discretionary
rulings and as relevant to its consideration of whether “justice
under the circumstances” required reversal under that Court’s dis-
cretionary authority arising from 28 U.S.C. §2106. This Court too
is being asked to afford “‘justice under the circumstances,’ and
should be mindful of the context described above.
4
claimed that the hourly rates for Mr. Kactan and for his
co-counsel were too high, argued that the bills submitted
were insufficiently detailed and lacked supporting docu-
mentation, contended that the hours spent by both law-
yers were disproportionate to the relief sought and
obtained, and attacked as ‘‘excessive’’ Plaintiffs’ use of
an expert witness on the question of the prevailing rate
for comparable legal services. Yet despite their aggressive
approach to the issue of counsel fees, Petitioners explic-
itly conceded that Mr. Kattan should be compensated for
time he spent as a lawyer on this case, albeit for less
hours and at a lower rate than requested.” Nowhere did
Petitioners argue that Mr. Kattan should be entitled to no
compensation whatsoever for his legal services because he
was allegedly representing himself.
At the time of Petitioners’ opposition to the fee appli-
cation, there was no case in any court that had addressed
the question whether attorney parents representing their
children in EHA cases are entitled to fees for their legal
services.° As to fees for pro se representation under
other fee-shifting statutes, this Court had yet to address
the issue. The D.C. Circuit had held that fees were avail-
able to pro se litigants under FOIA, Cuneo v. Rumsfeld,
553 F.2d 1360, 1366 (D.C. Cir. 1977), but in so holding
cited cases from other jurisdictions coming down on both
sides of the issue, and commented as follows:
“The law is not clear on the question of whether a
party appearing on his own behalf, who is also an
attomey, is entitled to tax attorney fees as costs.”’
553 F.2d 1366 & n.18. —
5 See Joint Appendix in Nos. 92-7011 and 92-7012, in the
Court of Appeals for the D.C. Circuit at 121.
© Respondents are aware of no such decision today.
5
Petitioners must have been aware that such an argu-
ment was available to them, for in their fee application
the Kattans explicitly cited Cuneo and raised the issue of
pro se representation.’ Moreover, the District Court for
the District of Columbia — the very Court in which the
application was pending — had held in 1984 that pro se
attorneys were ineligible for fee awards under 42 U.S.C.
§1988. Lawrence v. Staats, 586 F. Supp. 1375, 1378-80
(D.D.C. 1984), affirmed sub nom Lawrence v. Bowsher,
931 F.2d 1579 (D.C. Cir. 1991). In that decision,
the court distinguished the Cuneo case because of policy
matters specific to FOIA and cited at least seven cases
from other jurisdictions (including cases from five federal
circuits) that had concluded that fees were not available
to pro se litigants under 42 U.S.C. §1988.
The district court inexplicably failed to act on the
Kattans’ fee application for nearly three years, but finally
issued an opinion and a final judgment granting the appli-
cation in part on October 16, 1991. App. 26a-3la
Included in that award were fees for legal services per-
formed by Mr. Kattan.
7In footnote 33 to their fee application, Respondents had
stated:
... A few cases discuss the question whether an attorney
should receive attorney’s fees at all when he appears pro se.
See, e.g., Cuneo v. Rumsfeld, 553 F.2d 1360, 1366 (D.C.
Cir. 1977) (under the attomeys’ fees provision of the Free-
dom of Information Act, a plaintiff appearing on his own
behalf who is also an attorney should not be denied those
fees simply because he is an attorney and has not incurred
liability to pay those fees). Mr. Kattan has not been appear-
ing here pro se; he is a named plaintiff only in the role of
parent and ‘“‘next friend”’ to his minor daughter, who cannot
bring suit in her own name.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.