It is unusual for this Blog to feature a case on attorneys’ fees. After all, Impartial Hearing Officers do not award fees; courts do. But a recent fees case, D.B. v. New York City Department of Education, No. 18 CIV. 7898, 2019 WL 4565128, 75 IDELR 73 (S.D.N.Y. Sept. 20, 2019), may be instructive to both IHOs and the parties who appear before them about how to minimize litigation costs on both sides by assessing the merits of a case early on and adopting a posture that matches the merits.

The dispute involved a child with a disability whose parent filed for due process on the ground that the defendant denied the student free, appropriate public education for the 2014-15 school year. At hearing, the defendant conceded that it failed to provide FAPE and the hearing officer ordered prospective relief that FAPE be provided for the 2015-16 school year. The parent filed in district court for attorneys’ fees, and a magistrate judge recommended an award of $83,201.62 in attorney’s fees and $3,573.67 in costs. The court adopted the magistrate judge report and recommendation and awarded additional fees in connection with the disposition of the defendant’s objections to the recommendation.

Much of the district judge’s discussion concerned hourly rates. Private attorneys cooperated with Advocates for Children of New York in representing the parent. Relying on a variety of evidence, the court approved a $450 per hour rate for a lawyer with 30 years of litigation experience and 15 years working on IDEA cases. The court approved a $285 rate for a junior associate and the magistrate judge’s determination of the rate for a fourth-year law firm associate who worked just on the fees petition. A rate of $150 was found proper for an experienced paralegal.

As for the number of hours billed for preparation for the hearing, the court approved the magistrate judge’s determination that although the hearing was shorter and less complicated than anticipated because the defendant conceded liability, the parent’s lawyers nevertheless needed to prepare fully when the defendant did not tell them until the last minute that liability would be conceded. “Plaintiff’s counsel fully prepared for the contested hearing they reasonably expected and should not be penalized for doing so.” 2019 WL 4565128, at *3. A proposed ratio of three hours preparation to one hour of hearing should not apply. The court further found that the recommended fee award covering interoffice communications was justified. It noted that the parent’s attorneys voluntarily reduced the internal communication hours invoiced.

As for fees on the challenge to the report and recommendation, the court awarded half of what the plaintiff asked, finding the hours spent out of line with awards in other cases concerning objections to magistrate judge reports and criticizing the use of quarter-hour billing increments, something for which the attorneys voluntarily reduced their bills in the proceedings considered by the magistrate judge. The additional award came to $3,674.25.

The bottom line, and the part of the opinion most relevant to IHOs and litigants is that the defendant had to pay $90,000 in a case in which it may have avoided a hearing altogether had it evaluated the strength of its own case, and the parents’ case, early in the due process proceedings, most notably before, or at, the prehearing conference.