Blackman v. District of Columbia, 328 F. Supp. 2d 36 (D.D.C. 2004)

PAUL L. FRIEDMAN, District Judge.

This action was filed under 42 U.S.C. § 1983 to enforce the rights of the plaintiff class members under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. Before the Court are three motions for attorneys’ fees and costs: (1) the motion of Diana Blackwell, filed on behalf of herself and her daughter Equilla Blackwell; (2) the motion of Victoria Harris, filed on behalf of herself and her daughter Chandra Harris; and (3) the motion of Dionne Timmons, on behalf of herself and her son Donnell Timmons. Defendants filed an opposition to each motion, plaintiffs filed reply briefs and supplemental requests for attorneys’ fees and costs. In the interim, the parties also briefed the issue of whether the Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), affects the Court’s analysis of plaintiffs’ motions.1 Upon consideration of the arguments of the parties, the Court concludes that plaintiffs are entitled to attorneys’ fees, and their motions therefore are granted.

I. BACKGROUND

A. Procedural History of this Action

On May 14, 1998, the Court certified a class with two subclasses in the consolidated cases of Blackman v. District of Columbia, Civil Action No. 97-1629(PLF), and Curtis v. District of Columbia, Civil Action No. 97-2402(PLF).2 The first sub

class, the Blackman subclass, is defined as “all persons now, and in the future, who present complaints to DCPS pursuant to Section 615(b)(6) of the IDEA and whose requests for impartial due process hearings under Section 615(f) of the IDEA and D.C. Mun. Regs. Tit. 5, § 3021.5 are overdue according to those provisions; and their next friends.” Blackman v. District of Columbia, Civil Action No. 97-1629, Order (D.D.C. May 14, 1998). The second subclass, the Jones subclass, is defined as “all children, now and in the future, who are entitled to have DCPS provide them with a free appropriate public education [FAPE] and who have been denied same because DCPS either (a) has failed to fully and timely implement the determination of hearing officers, or (b) failed to fully and timely implement agreements concerning a child’s identification, evaluation, educational placement, or provision of FAPE that DCPS has negotiated with the child’s parent or educational advocate.” Id.

On June 3, 1998, the Court granted plaintiffs’ motion for summary judgment as to liability. See Order and Opinion of June 3, 1998. The Court declined to issue a class-wide preliminary injunction at that time, concluding that such a broad injunction “would be ineffective and impractical.” Blackman v. District of Columbia, 185 F.R.D. 4, 5 (D.D.C.1999). Instead, the Court assumed that in the most severe cases, in which irreparable injury was threatened absent some action by the District, “the District would not ignore its obligation to take such action even absent resolution of the claims of the class as a whole.” Id. By 1999, however, the Court concluded that the District had ignored its obligations, even in severe cases, and appointed Elise Baach, Esq., as a Special Master “for the limited purposes of assisting the Court in resolving the requests for immediate injunctive relief,” which was “the least intrusive and most effective way to ensure that the noncompliance with the IDEA which gave rise to liability does not cause irreparable injury to any individual class member pending the determination of class-wide relief.” Id. at 7, 8.

The Order of Reference entrusted the Special Master “with the dual function of facilitating a mutually satisfactory resolution of each such individual claim, and, in the absence of a mutually acceptable resolution, providing the Court with a report and recommendation with respect to whether any particular plaintiff is entitled to preliminary injunctive relief.” Blackman v. District of Columbia, 185 F.R.D. at 9. The Order broadly applied to “any motion filed in this Court by a member or members of the class certified in this case which seeks a temporary restraining order, a preliminary injunction or other emergency injunctive relief in addition to or more quickly than any relief that will be afforded to the class as a whole either after trial ... or upon settlement, for injury stemming from the liability that the Court has found in this case.” Id. The Order of Reference included a detailed mechanism by which the Special Master would assist the Court in providing a plaintiff relief while concurrently protecting the interests of the District. See id. at 9-10.

B. Plaintiffs’ Motions for Attorneys’ Fees and Costs

These three plaintiffs come before the Court in very similar postures. On December 15, 1999, plaintiff Diane Blackwell, on behalf of her minor child E quilla Blackwell, filed a motion for preliminary injunc

tion with the Court in accordance with the Order of Reference. Ms. Blackwell sought an order enforcing a November 1, 1999 settlement agreement obtained in lieu of a due process proceeding initiated under the IDEA. Defendants subsequently complied with the November 1, 1999 settlement agreement, and on August 31, 2000, the Special Master therefore filed a Report and Recommendation with the Court recommending that plaintiffs motion for injunctive relief be denied. The Court denied Ms. Blackwell’s motion for preliminary injunction on September 20, 2000. Ms. Blackwell then filed the current motion on October 3, 2000, seeking $11,286.00 in attorneys’ fees and $317.35 in costs. See Points and Authorities in Support of Plaintiffs Motion for an Award of Attorney’s Fees and Costs filed on behalf of Diane Blackwell at 1-2. On November 15, 2001, plaintiff filed a supplement to her motion, moving for an additional $1,250.00 in fees and $40.88 in costs for counsel’s efforts in litigating the instant motion. See Supplement to Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs at 2.

On August 8, 2000, plaintiff Dionne Tim-mons, on behalf-of her minor child Donnell Timmons, filed a motion for preliminary injunction with the Court seeking compliance with a January 11, 2000 settlement agreement. After Ms. Timmons filed her motion for preliminary injunction,- defendants complied with the requirements of the settlement agreement. On January 22, 2001, the Special Master therefore filed a Report and Recommendation with the Court recommending that plaintiffs motion for injunctive relief be denied, and the Court denied plaintiffs motion for a preliminary injunction on February 12, 2001. Ms. Timmons then filed her current motion on March 7, 2001, seeking $3,094.00 in attorneys’ fees and $154.03 in costs. See Points and Authorities in Support of Plaintiffs Motion for an Award of Attorney’s Fees and Costs filed on behalf of Dionne Timmons at 1-2. On November 19, 2001, plaintiff filed a supplement to her motion, moving for an additional $1,260.00 in fees and $20.31 in costs for counsel’s efforts in litigating the instant motion. See Supplement to Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs at 2.

On August 16, 2000, plaintiff Victoria Harris, on behalf of her minor child Chanda Harris, filed a motion for preliminary injunction with the Court in accordance with the procedures specified in the Order of Reference. Ms. Harris sought compliance with a February 4, 2000 settlement agreement entered into between the parties pursuant to plaintiffs’ rights under the IDEA. After Ms. Harris filed the motion for preliminary injunction, defendants complied with the requirements of the February 4 settlement agreement. On January 22, 2001, the Special Master therefore filed a Report and Recommendation with the Court recommending that plaintiffs motion for injunctive relief be denied. In her report, the Special Master noted that “[tjhrough plaintiff counsel’s efforts, the relief sought has been obtained.” Report and Recommendations of the Special Master in the Matter of Victoria Harris at 4. Accordingly, the Court denied plaintiffs motion for a preliminary injunction on February 12, 2001. Ms. Harris then filed the current motion on February 14, 2001, seeking $8,017.00 in attorneys’ fees and $204.70 in costs relating to counsel’s efforts. See Points and Authorities in Support of Plaintiffs Motion for an Award of Attorney’s Fees and Costs filed on behalf of Victoria Harris at 1-2. On May 22, 2001, Ms. Harris filed a supplement to her motion, moving for an additional $1,120.00 in fees and $93.20 in costs for counsel’s efforts in litigating the instant motion. See Supplement to Plaintiffs’ Motion for Attorneys’ Fees and Costs at 2. On November 15, 2001, plaintiff filed a second

supplement requesting an additional $1,511.00 in fees and $18.63 in costs for her continued effort on her original'fee motion. See Second Supplement to Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs at 2.

II. DISCUSSION

A. Applicability of Buckhannon to Section 1988 Claims

In an action brought pursuant to 42 U.S.C. § 1983, the Court in its discretion “may allow the prevailing party ... a reasonable attorney’s fee as part of the costs” under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. Prior to 2001, this Circuit applied the “catalyst” theory to determine whether a plaintiff was a “prevailing party” for the purposes of 42 U.S.C. § 1988, whereby a plaintiff was eligible for an award if the court determined that “ ‘there were color-able civil rights claims involved in the case and [that] they served as catalysts in securing the result.’ ” See Blackman v. District of Columbia, 59 F.Supp.2d 37, 41 (D.D.C.1999) (quoting Grano v. Barry, 783 F.2d 1104, 1110 (D.C.Cir.1986)). In 2001, however, the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), changed the landscape for awarding attorneys’ fees under fee-shifting statutes such as 42 U.S.C. § 1988 by rejecting the “catalyst” theory and adopting a more stringent definition of “prevailing party.”

In Buckhannon, the plaintiffs operated assisted living care homes that failed an inspection by the state fire marshal because some of the residents were incapable of “self-preservation” as defined under state law. In response, the plaintiffs filed suit charging that the “self-presérvation” requirement violated the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. at 600-01, 121 S.Ct. 1835. While the suit was pending, the state legislature enacted two bills eliminating the provisions in question, and the district court granted defendants’ subsequent motion to dismiss on the ground of mootness See id. at 601, 121 S.Ct. 1835. The plaintiffs then sought attorneys’ fees and costs as prevailing parties under the FHAA, 42 U.S.C. § 3613(c)(2), and the ADA, 42 U.S.C. § 12205, arguing that under the “catalyst theory,” they had “achieved] the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 601, 121 S.Ct. 1835.

The Supreme Court rejected the plaintiffs’ claim, concluding that the “catalyst theory” was an impermissible basis for the award of attorneys’ fees under the statute. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. at 610, 121 S.Ct. 1835. Rather, the Court concluded, there must be an “alteration in the legal relationship of the parties” that has been given some judicial imprimatur in order to qualify as a “prevailing party” under fee-shifting statutes. Id. at 605, 121 S.Ct. 1835. This definition includes, inter alia, enforceable judgments on the merits and court-ordered consent decrees because both “create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Id. at 604, 121 S.Ct. 1835 (quoting Texas State Teachers Assn. v. Garland Independent School District, 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). The Supreme Court noted that attorneys’ fees normally would not be available to parties that reach private settlements because such agreements “do not entail the judicial approval and oversight involved in consent

decrees.” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. at 604 n. 7, 121 S.Ct. 1835.

Although Buckhannon concerned fee awards under the FHAA and the ADA, the Supreme Court indicated that its reasoning applied to analogous fee-shifting statutes such as Section 1988. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. at 603 n. 4, 121 S.Ct. 1835 (“[W]e have interpreted the[] fee shifting provisions” of the FHAA, the ADA and the Civil Rights Attorney’s Fees Awards Act “consistently”). Although the D.C. Circuit has not addressed Buckhannon in the context of Section 1988, it has applied Buckhannon to other fee-shifting statutes. See Thomas v. National Science Foundation, 330 F.3d 486, 488-89 (D.C.Cir.2003) (Buckhannon standard applicable to claim for fees under Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)); Oil, Chemical & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452, 455 (D.C.Cir.2002) (Buckhannon standard applicable to claim for fees under FOIA, 5 U.S.C. § 552(a)(4)(E)). Every other circuit has addressed this issue, and each has concluded that the Buckhannon analysis applies to claims for fees under Section 1988. See Alliance to End Repression v. City of Chicago, 356 F.3d 767, 769 (7th Cir.2004); Smalbein v. City of Daytona Beach, 353 F.3d 901, 904-05 (11th Cir.2003); Toms v. Taft, 338 F.3d 519, 528 (6th Cir.2003); Walker v. City of Mesquite, 313 F.3d 246, 249 (5th Cir.2002); Cody v. Hillard, 304 F.3d 767, 772 (8th Cir.2002); Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002); Truesdell v. Philadelphia Housing Authority, 290 F.3d 159, 165 (3d Cir.2002); New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir.2002); Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir.2002); New York State Federation of Taxi Drivers, Inc. v. Westchester County Taxi and Limousine Commission, 272 F.3d 154, 158 (2d Cir.2001). Following this unanimous authority, the Court concludes that the definition of “prevailing party” articulated by the Supreme Court in Buckhannon applies to motions for attorneys’ fees brought pursuant to Section 1988. The Court therefore must determine whether plaintiffs here are prevailing parties under Buckhannon.

B. Prevailing Party Status Under Buckhannon

Defendants argue that plaintiffs are not “prevailing parties” under Buckhannon because the parties reached private settlements of the issues raised in plaintiffs’ motions for injunctive relief. See Defendant’s Supplemental Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Attorney’s Fees and Costs at 4-7.3 Plaintiffs respond with an

argument unique to these consolidated class actions: plaintiffs fall within the parameters of Buckhannon because each plaintiff, an undisputed member of the Jones subclass, is a prevailing party under the Court’s Order and Opinion of June 3, 1998, in which the Court granted plaintiffs’ motion for summary judgment on liability for the Jones subclass. See Plaintiffs Reply to Defendants’ Supplemental Opposition to Plaintiffs Motion for Attorney’s Fees and Costs (“Pls.’ Supp. Rep.”) at 4. Plaintiffs argue that this decision altered the legal relationship of the parties because as a result of the Court’s decision, the plaintiffs were able to subject the defendants to the immediate scrutiny of the Special Master, an agent of the Court under the Order of Reference. See id. at 6. “Appropriate relief then was achieved through the Court ordered and. Court supervised procedure with the Special Master.” Id. at 6-7.

Plaintiffs also argue that they are “required to utilize this system to achieve implementation of settlement agreements or hearing determinations,” and that “once these administrative remedies become enforced under the terms and procedures of this class litigation, an actual preliminary injunction becomes a redundant and unnecessary assertion of the Court’s supervision.” The risk, plaintiffs assert, is that if plaintiffs cannot receive attorneys’ fees under this mechanism, they will cease utilizing it. See id. at 7. Defendants did not respond to plaintiffs’ Buckhannon argument. See Defendant’s Memorandum of Points and Authorities in Opposition to Plaintiffs’ Supplemental Motion for Attorneys’ Fees and Costs (“Defs.’ Supp. Opp.”). .

As a preliminary matter, the Court rejects plaintiffs’ argument that because the Court granted plaintiffs’ motion for summary judgment on the issue of liability, the plaintiffs have de facto “prevailing party” status for the duration of these actions with respect to any issues that arise for which attorneys’ fees are incurred. The Order and Opinion of June 3, 1998 did change the legal relationship between the parties, but that change does not sustain plaintiffs’ claims for attorneys’ fees absent additional review. Although the D.C. Circuit has not articulated a standard for such a review under Buckhannon, the Eighth Circuit has addressed analogous proceedings in Cody v. Hillard, 304 F.3d 767 (8th Cir.2002). In Cody, the plaintiff class of state prisoners secured a court-ordered consent decree that governed the operation of the prison for twelve years. At the twelve-year mark, defendants moved to dissolve the consent decree, and the parties subsequently entered into a settlement agreement that stipulated, inter alia, that the action would be dismissed without prejudice. The court approved the settlement agreement and dismissed the case. Plaintiffs then moved for attorneys’ fees for their efforts in the final stages of monitoring the consent decree, in their defense of the consent decree and in negotiation of the settlement agreement. See id. at 771-72.

The Eighth Circuit first concluded that the original consent decree was “clearly a ‘judicially sanctioned change’ in the parties’ relationship” that conferred prevailing party status under Buckhannon. Cody v. Hillard, 304 F.3d at 773 (quoting Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. at 605, 121 S.Ct. 1835). The court also concluded, however, that the fact that a plaintiff “has once established prevailing party status does not make all later work compensable.” Id.

Rather, compensation is limited by several factors:

Id. (internal quotations and citations omitted). Upon review of the plaintiffs’ counsel’s effort, the court of appeals concluded that under this test the plaintiffs were prevailing parties in their post-judgment efforts under Buckhannon.4

Applying the Cody standard to the instant motions, the Court notes that with respect to the first factor, it is undisputed that plaintiffs here have achieved broad success in this case. The Court found defendants liable for violations of Section 1983 for both subclasses, and plaintiffs have continued to secure defendants’ compliance with the IDEA through their efforts to gain appropriate relief. See Opinion and Order of June 3, 1998; Blackman v. District of Columbia, 277 F.Supp.2d 71 (D.D.C.2003). The second question therefore is whether the issues raised in the motions for injunctive relief for which fees now are sought are “inextricably intertwined” with the Court’s finding of liability in the Order and Opinion of June 3, 1998 or whether they are “more like a new, separate lawsuit.” Cody v. Hillard, 304 F.3d at 773. The Court concludes that the requests for injunctive relief were inextricably intertwined with the liability question on which plaintiffs already have prevailed.

In granting plaintiffs’ motion for summary judgment on the issue of liability, the Court delayed trial on the remedy phase in anticipation that the parties could reach an agreement for a remedial plan. See Blackman v. District of Columbia, 185 F.R.D. at 5. The parties failed to reach such an agreement, and the Court appointed the Special Master and established in the Order of Reference an interim settlement structure to ensure that plaintiffs could gain relief for defendants’ established violations that were causing irreparable harm until a final remedial structure is in place. Plaintiffs in the current matters gained relief through those procedures, and now request attorneys’ fees for doing so. Notably, neither plaintiffs’ motions for injunctive relief nor the resulting settlement of the motions raised new issues with regard to liability or any other issue. Rather, plaintiffs, who are undisputed members of the Jones subclass for which liability has been established, sought and achieved a

remedy for defendants’ ongoing violations of the IDEA. Such an effort to secure a remedy through Court-established procedures is—and must be—inextricably intertwined with the Court’s conclusion that the violation existed in the first instance. See Cody v. Hillard, 304 F.3d at 774-75. Otherwise, the Opinion and Order of June 3, 1998 is plaintiffs’ victory in paper only.

At the core of Buckhannon is the requirement that there must' be a change in the legal relationship between the parties in order be to awarded fees, and that change must be judicially sanctioned in some way. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. at 604-05, 121 S.Ct. 1835. In this instance, the legal relationship between the parties changed upon the Court’s finding of liability, and that change is actualized, practically speaking, in the preliminary injunctions entered and in the’ settlement agreements reached as a result of the efforts of the Special Master and the Order of Reference mechanism. As the Court’s agent, expressly appointed to the task of resolving requests for immediate injunctive relief pursuant to the Order of Reference, the Special Master provides the process with sufficient Court oversight to ensure that the concerns expressed in Buckhannon regarding requisite judicial imprimatur of settlements are met. Plaintiffs are “prevailing parties” under Buckhannon and 42 U.S.C. § 1988.5

Having concluded that plaintiffs are prevailing parties under the statute, the Court now turns to the “reasonableness of the fees” sought under Section 1988. The Court has previously set forth the appropriate analytical framework for determining the award of attorneys’ fees and costs in special education cases like this one where the plaintiffs have prevailed. See Blackman v. District of Columbia, 59 F.Supp.2d at 42-44. There is no need to reiterate that analysis here because defendants have not challenged the reasonableness of plaintiffs’ attorneys’ fees petitions. The Court therefore will grant plaintiffs’ motions. In addition, the Court will grant plaintiffs’ fee requests for counsel’s effort in litigating the instant motions because the Court is granting those motions. Accordingly, it is hereby

ORDERED that Plaintiffs Motion for an Award of Attorneys’ Fees and Costs filed by Diane Blackwell [629-1] is GRANTED; it is

FURTHER ORDERED that on or before September 3, 2004, defendants shall pay to plaintiff Diane Blackwell $12,894.23. If this amount is not paid on or before September 3, 2004, it will bear interest at the rate established by 18 U.S.C. § 1961 from September 4, 2004, the 31st day following entry of this Order; it is

FURTHER ORDERED that Plaintiffs Motion for an Award of Attorney’s Fees and Costs filed by Victoria Harris [754-1] is GRANTED; it is

FURTHER ORDERED that on or before September 3, 2004, defendants shall pay to plaintiff Victoria Harris $10,964.53. If this amount is not paid on or before September 3, 2004, it will bear interest at the rate established by 18 U.S.C. § 1961 from September 4, 2004, the 31st day following entry of this Order; it is

FURTHER ORDERED that Plaintiffs Motion for an Award of Attorney’s Fees and Costs filed by Dionne Timmons [767-1] is GRANTED; it is

FURTHER ORDERED that on or before September 3, 2004, defendants shall pay to plaintiff Dionne Timmons $4,528.34. If this amount is not paid on or before September 3, 2004, it will bear interest at the rate established by 18 U.S.C. § 1961 from September 4, 2004, the 31st day following entry of this Order.

SO ORDERED.