[00:00:02] Speaker 03: Case number 14-7133 at L. Angela Price, parent and next friend of JP, a minor appellant, Jerome Parker, Lashawn Weems, parent and next friend of DW, a minor appellant, versus District of Columbia. [00:00:16] Speaker 03: Ms. [00:00:16] Speaker 03: Rosenbaum for the appellants, Mr. Love for the appellee. [00:00:21] Speaker 05: May it please the court, Adina Rosenbaum on behalf of Angela Price, Lashawn Weems, and Jerome Parker. [00:00:27] Speaker 05: Over 30 years ago, in Bloom v. Stenson, the Supreme Court made clear that the amount an attorney agrees to accept to represent a client does not govern the rate for attorney's fees if the client prevails. [00:00:41] Speaker 05: That principle requires reversal of the district court decision here, which held that the parents in this case who were prevailing parties under the IDEA were not entitled to fees based on a rate above $90 per hour. [00:00:54] Speaker 05: The IDEA requires that attorney's fees under its fee-shifting provision be based on prevailing market rates in the community. [00:01:02] Speaker 05: Despite that requirement, the district court here did not base the attorney fee award on prevailing market rates. [00:01:09] Speaker 05: Instead, because the parent's attorney had been appointed under the DC Criminal Justice Act, which provides for compensation at $90 per hour, the district court held that the parents could not recover fees at a rate above that amount. [00:01:22] Speaker 05: But it's well established that the rate an attorney agrees to accept does not govern the rate for fee-shifting purposes. [00:01:29] Speaker 04: Well, that's true if it's a contingent fee arrangement. [00:01:33] Speaker 04: We know that. [00:01:35] Speaker 04: But this looks different from other things that we have seen. [00:01:39] Speaker 04: I guess the question is, is your argument that the court really never has the option of not providing attorney's fees under the IDEA case? [00:01:59] Speaker 05: Court cannot base its decision of attorney's fees and what rate to provide those at just on the amount that the attorney agreed to accept in undertaking the representation. [00:02:12] Speaker 05: So in Bloom, the Supreme Court held that the fact that a client has pro bono representation, that the attorney is charging nothing, doesn't mean that the client should have a fee award of nothing or a zero hour reduced rate just because he was charged nothing for the representation. [00:02:31] Speaker 04: Does that mean that the court couldn't even consider the rate in deciding what's reasonable? [00:02:40] Speaker 05: I don't think it can, because the IDA specifically requires that fees under the statute be based on prevailing market rates in the community. [00:02:49] Speaker 05: So the IDA specifies what the attorney's fees have to be based on, and the amount that's actually charged in the specific case or that the attorney agrees to accept in the specific case is irrelevant to that determination of [00:03:05] Speaker 05: what the prevailing market rate is. [00:03:07] Speaker 05: And this court has held that that's also true when an attorney charges a reduced rate for public interest purposes. [00:03:14] Speaker 05: It held that in, say, our Cumberland Mountains. [00:03:16] Speaker 05: That reduced rate is not the prevailing market rate for fee-shifting purposes, and the client is not bound to that reduced rate just because that's what the attorney charged under those circumstances. [00:03:28] Speaker 05: And that same principle governs here. [00:03:29] Speaker 05: The $90 in the CJA is just the amount that the attorney agreed to accept to represent the plaintiff under these circumstances. [00:03:39] Speaker 05: And it doesn't govern the rate for fee-shifting purposes any more than the $0 hourly rate did in Bloom or the reduced rate did in Save Our Cumberland Mountains. [00:03:50] Speaker 05: And the appointment orders in Jerome Parker's and Angela Price's case underscore that the CJA rate and the CJA compensation scheme are separate from the IDEA fee shifting scheme. [00:04:04] Speaker 05: That appointment order states that the DC Superior Courts will reimburse the client, will pay the attorney under the CJA if he is not otherwise paid by DCPS. [00:04:16] Speaker 05: So it underscores that the CJA compensation scheme is something separate from the IDA fee shifting provision. [00:04:25] Speaker 05: And it's not what governs the IDA fee shifting provision. [00:04:28] Speaker 05: What governs fee shifting under the IDA and the fee award that's awarded under it is the provision under the IDEA that states that attorney's fees will be based on prevailing market rates in the community. [00:04:41] Speaker 05: And $90 is not the market rate for the work that was done [00:04:45] Speaker 05: To begin with, that's not what the district court held here. [00:04:48] Speaker 05: He did not talk about market rates at all. [00:04:51] Speaker 05: And again, the fact that Mr. Bergeron agreed to represent the clients at that rate doesn't make it the market rate, nor does the fact that there is a panel of attorneys willing to represent indigent clients at that rate. [00:05:03] Speaker 05: The IDEA talks about market rates for the kind and quality of work done, making clear that the market is other attorneys who are doing work of this kind and quality. [00:05:14] Speaker 05: It's based on what the market is for this type of work for a few paying clients, not based on the pool of other attorneys who are representing indigent clients at a reduced hourly rate. [00:05:26] Speaker 05: And all of the parties in this case, particularly below, cited a range of cases that [00:05:33] Speaker 05: talked about IDEA fees and that awarded fees in IDEA fee-shifting cases. [00:05:39] Speaker 05: And those fees tended to be the Laffey rate or some significant portion of the Laffey rate. [00:05:43] Speaker 05: And this court has recognized that the Laffey rate provides evidence of prevailing market rates in the District of Columbia. [00:05:50] Speaker 05: Except for the District Court below, which found itself bound by or thought it was bound by the $90 rate, none of the cases in which the District of Columbia has argued that that $90 rate applies have [00:06:03] Speaker 05: found it to be the prevailing market rate. [00:06:09] Speaker 05: enacted the fee shifting provision in the IDEA because it thought that that's what was necessary to ensure that students in need of special education services received competent attorneys to help them get the services that they need. [00:06:24] Speaker 05: And when a parent prevails on behalf of her child in an IDEA proceeding, that demonstrates that up until that point, the educational system has failed that child. [00:06:34] Speaker 05: And in CJA cases, that's particularly apparent, apparent enough that the Superior Court appoints an attorney for the student to make sure that that student can get the educational services that they need. [00:06:48] Speaker 05: It's only with the help of that attorney that the student is able to get those services. [00:06:55] Speaker 05: And that's what happened here. [00:06:56] Speaker 05: Once the attorney was appointed and could guide the parents and represent the parents in the due process hearings, [00:07:03] Speaker 05: the students in these cases were able to obtain very much needed educational services. [00:07:09] Speaker 02: Just so the record is clear, it is the fact that there was a separate lawyer that was appointed to basically handle kind of the criminal side, so to speak, of the juvenile proceedings. [00:07:23] Speaker 05: Is that right? [00:07:23] Speaker 05: Yes, Mr. Bergeron was appointed just to handle the special education part. [00:07:28] Speaker 05: and we did the due process hearings in these cases. [00:07:33] Speaker 05: And Congress specifies that when an attorney helps parents prevail in due process hearings on behalf of their children, that the rate at which the parents should be [00:07:47] Speaker 05: compensated under a fee-shifting statute is the prevailing market rate. [00:07:52] Speaker 04: Can I ask you just a practical question? [00:07:55] Speaker 04: If it's the parents who are compensated, how do the attorneys end up with the money? [00:08:01] Speaker 05: The parents will eventually will give the money to the attorneys, but technically it's the parents who are the plaintiffs here and who receive the fee awards. [00:08:10] Speaker 04: And it's the parents who receive the fee award. [00:08:11] Speaker 04: And so is there something in the agreement with the attorney that assigns these rights to them? [00:08:19] Speaker 05: I believe that's often the way it happens. [00:08:22] Speaker 05: I don't know the specifics of the retainer agreement here, but generally in fee shifting cases the [00:08:28] Speaker 05: The parents are the ones who are the plaintiffs in the fee shifting case. [00:08:32] Speaker 05: and who own the fee award, but the fee award ends up going ultimately to the attorney because the attorney is the one who did the work. [00:08:40] Speaker 04: Go ahead. [00:08:42] Speaker 04: I know that you're correct about most of the precedent in this area, but what you described Congress's purpose as being enabling them to have representation, right? [00:08:54] Speaker 04: And so if the CJA process enables them to have representation, [00:09:01] Speaker 04: What is really the justification for the market rate? [00:09:09] Speaker 05: Well, the CJA process provides an additional incentive to have justification for some of the students who may find it the hardest to get representation otherwise. [00:09:19] Speaker 05: These are students in delinquency proceedings. [00:09:22] Speaker 05: And so it does provide additional incentive above [00:09:26] Speaker 05: the fee-shifting regime already in place because of the IDEA. [00:09:30] Speaker 05: But it's at a far below market rate. [00:09:34] Speaker 05: And so that on its own does not provide the same incentive as the IDEA. [00:09:39] Speaker 05: And this is no different from, say, our Cumberland Mountains. [00:09:41] Speaker 05: There, the reduced rate may have supplied the incentive for the attorneys to work. [00:09:47] Speaker 04: I understand what you're saying. [00:09:48] Speaker 04: I'm just trying to figure out how do we, I mean, in other words, [00:09:53] Speaker 04: The IDEA process is an administrative process, which seems pretty straightforward. [00:10:00] Speaker 04: I mean, you know, if you can show that your child is diagnosed with disabilities and that there's a recommendation for an [00:10:08] Speaker 04: a specific kind of program for them and that that wasn't provided. [00:10:14] Speaker 04: You know, that's basically all you have to show. [00:10:18] Speaker 04: On the other hand, criminal representation can be quite complex, certainly very significant, and $90 is enough for that, but not for representing somebody in this administrative here. [00:10:34] Speaker 04: So I'm just trying to figure out [00:10:36] Speaker 04: I have a few responses to that. [00:10:40] Speaker 05: One is that these proceedings can actually be quite complex. [00:10:44] Speaker 05: The proceeding in Angela Price and Jerome Parker's case, for example, was a multiple-day hearing with nine witnesses, including multiple experts. [00:10:54] Speaker 05: So it's not simple proceedings. [00:10:56] Speaker 05: It actually looks a lot like litigation. [00:10:59] Speaker 05: And to the extent that it is fairly simple, that will be reflected in the number of hours spent on the case. [00:11:05] Speaker 05: So the complexity is already taken into account in that sense. [00:11:10] Speaker 05: But the IDA doesn't just say reasonable. [00:11:13] Speaker 05: It defines what it means by reasonable under the circumstances. [00:11:16] Speaker 05: And what the law states is that [00:11:18] Speaker 05: a fee award has to be based on prevailing market rates. [00:11:24] Speaker 05: So it's not reasonable in a vacuum where the district court has the discretion to come up with any rate that it thinks is reasonable. [00:11:30] Speaker 05: The IDA has specified what the rate has to be, and the rate that it requires is the prevailing market rate in the community. [00:11:40] Speaker 05: And that's not what was awarded here. [00:11:44] Speaker 01: One of the theories, though, is that there's a trade-off that you get the $90 either way, win or lose, and so that's a plus for attorneys. [00:11:55] Speaker 05: It is, but in Sabre Cumberland Mountains, the attorneys who charge the reduced rate were going to get that reduced rate, plus whether or not they win or lose, lost. [00:12:04] Speaker 05: And yet the clients were still entitled to fee-shifting at the prevailing market rate once they won. [00:12:10] Speaker 05: So this is the exact same situation. [00:12:12] Speaker 05: Yes, the attorney receives the $90, whether or not they win or lose, but that doesn't foreclose or dictate what the hourly rate should be for fee-shifting purposes. [00:12:23] Speaker 05: once the client prevails. [00:12:26] Speaker 05: No matter what the attorney is receiving from their client, whether or on behalf of their client, whether or not that's a rate that is the market rate or not, once they prevail under the terms of the statute and under the governing case law, the client is entitled to a fee award based on prevailing market rates. [00:12:44] Speaker 04: Does the attorney get both that CJA rate plus the attorney's fees? [00:12:51] Speaker 05: No, not for the same work. [00:12:54] Speaker 05: For the work that's compensated by DCPS, the attorney just gets the IDEA fees. [00:12:59] Speaker 05: There is some work that cannot be compensated under the IDEA, and they would receive the Superior Court CJA fees for that other work. [00:13:09] Speaker 04: So that suggests if they got the $90, it would be compensating them for that. [00:13:17] Speaker 04: It's discounted. [00:13:19] Speaker 04: I was curious because the district court here came up with the number $505 an hour. [00:13:24] Speaker 04: I wasn't sure how that was calculated. [00:13:29] Speaker 05: That's the laughing rate for the work that was done here. [00:13:34] Speaker 02: So that's based on the spreadsheet, so to speak, and the lawyers' years of experience. [00:13:40] Speaker 05: Exactly. [00:13:40] Speaker 05: It's based on the matrix that is put out by the US Attorney's Office. [00:13:44] Speaker 05: And when you look at the lawyers' experience and the year on that spreadsheet, the Laffey rate for Mr. Bergeron was $505. [00:13:51] Speaker 05: Unless there are any further questions. [00:13:56] Speaker 05: Thank you. [00:13:58] Speaker 04: Thank you. [00:14:08] Speaker 00: I can start with several factors which distinguish this case. [00:14:15] Speaker 00: The first, of course, is that counsel agreed to represent the plaintiffs at idea administrative hearings at no cost pursuant to another statute that fixes the rate of compensation at $90 an hour. [00:14:28] Speaker 00: And second, in fact, it would be a misapplication of ideas fee shifting provisions to award plaintiffs fees based on Mr. Bergeron's years of experience in the hours he expended at idea administrative hearings, when under the CJA, Mr. Bergeron is prohibited from asking the plaintiffs for any compensation. [00:14:50] Speaker 00: And indeed, he's prohibited from accepting [00:14:54] Speaker 00: any compensation beyond that provided for in the statute. [00:14:59] Speaker 02: But he hasn't been compensated under the statute, under the CJA. [00:15:05] Speaker 02: Well, he was. [00:15:06] Speaker 02: If you pay him, you're not paying him out of the CJA funds, the district is it? [00:15:12] Speaker 00: Well, [00:15:14] Speaker 00: Well, the district was paying him pursuant to the statute because the statute, regardless of the source of the funds, it is still paying him pursuant to the statute which fixes the rate of compensation at $90 an hour. [00:15:28] Speaker 02: You don't pay lawyers for doing CJA work? [00:15:34] Speaker 02: You don't pay any other juvenile lawyers who submit vouchers. [00:15:39] Speaker 02: The court takes them. [00:15:40] Speaker 00: Well, that's correct, but I think that's simply the source of the funds wouldn't distinguish necessarily the [00:15:50] Speaker 00: work that was being done what what I think is more critical than the source of the budget where the funds come from is what was the work that was done and the work that was done here was exactly what he was appointed under the CJA to do and that is represent the parents in idea administrative hearing. [00:16:10] Speaker 02: It seems to me that you are completely misconstruing how the statute works with that argument. [00:16:19] Speaker 02: I mean, what the Superior Court did here was issue an order, there was an administrative order, based on the fact that juveniles and kids in the abuse and neglect system need, oftentimes, for either their rehabilitation, which is part of the delinquency, or just to get the proper services as an abused or neglected child, [00:16:45] Speaker 02: they need to have their educational circumstance addressed. [00:16:49] Speaker 02: And the lawyers who do the run-of-the-mill juvenile delinquency work are criminal lawyers, so to speak, and they don't know anything about education, special education. [00:17:00] Speaker 02: And so there's a special panel that's created [00:17:03] Speaker 02: And they're appointed to represent the kid in conjunction, and the parent in conjunction with the delinquency proceeding. [00:17:12] Speaker 02: And if they can't get any money out of the IDEA, then the court pays them out of the CJA funds because the court can't just conscript lawyers in and make them do work that they're not going to be paid. [00:17:26] Speaker 02: I mean, isn't that what's happened here? [00:17:28] Speaker 00: I think that that's correct, but I still think that they are doing the exact work that the appointment under the CJA authorized the damage to do, and that having agreed to do that work at $90 an hour, it wasn't unreasonable for the court to find that that constituted the reasonable rate under the circumstances of this case. [00:17:56] Speaker 00: And the court's appointment brings with it additional advantages, as we pointed out in our brief. [00:18:08] Speaker 00: It prescreens the clients. [00:18:09] Speaker 00: It also authorizes them access to records that they otherwise would have to move the court for. [00:18:16] Speaker 00: And so the attorney and I think it's fair to say the client, the plaintiffs as well, accepted this appointment under those terms and are seeking here almost six times the amount that the statute fixes the rate of compensation. [00:18:39] Speaker 01: But in the ordinary case, IDEA case, that is what is awarded, right? [00:18:46] Speaker 00: That can be what is awarded. [00:18:48] Speaker 01: Well, a lot of the cases are Laffey, right? [00:18:52] Speaker 00: Or some variation there. [00:18:53] Speaker 01: Some variation of Laffey and enhanced Laffey, I know all that. [00:18:57] Speaker 01: But it seems like the statute here doesn't worry about what the initial contract may have been. [00:19:06] Speaker 01: The statute just speaks to fees. [00:19:09] Speaker 01: have to be rates prevailing in which the action or proceeding arose for the kind and quality of services furnished. [00:19:17] Speaker 01: So if you start with the statute, it doesn't really matter what kind of contractual arrangement or pre-existing arrangement might have been going on in a particular case. [00:19:30] Speaker 00: Well, I think the Court could certainly have taken into consideration and viewed the market very narrowly as that pool of attorneys who are appointed by the Superior Court to provide these specific services under the CJA and to have found that that was the prevailing market. [00:19:52] Speaker 01: What percentage of cases, these kinds of cases, are done by the CJA process? [00:20:00] Speaker 00: It would just be a guess. [00:20:01] Speaker 00: My guess would be a smaller percentage, but I really don't know. [00:20:05] Speaker 01: So it's unlikely then that that really is the [00:20:12] Speaker 01: prevailing rate for the kind and quality of services furnished, if you look at IDEA cases more generally? [00:20:18] Speaker 00: Yeah, more generally. [00:20:20] Speaker 00: It's a subset of that market. [00:20:21] Speaker 00: There are 35, at least on the administrative order, 35, I believe, attorneys that are listed on the special education advocate panel. [00:20:32] Speaker 00: But I think there's also a case law that does, I mean, even in Blum, it says there may be circumstances where if you derive a fee using the lodestar method that the district court finds unreasonably low or unreasonably high, the district court can adjust it. [00:20:50] Speaker 00: And I think that's repeated in the Blanchard case. [00:20:54] Speaker 00: It says it's central to awarding of attorney's fees that the district court judge in his or her good judgment make the assessment of what is a reasonable fee under the [00:21:02] Speaker 02: So if there are two juveniles arrested for joyriding in a stolen car, common charge in DC Superior Court, juvenile court. [00:21:14] Speaker 02: One of the kids, his parents had a special education attorney before the arrest. [00:21:21] Speaker 02: The other one didn't. [00:21:23] Speaker 02: So the second child, the court appoints an attorney along with the main delinquency attorney and the special education attorney is appointed. [00:21:35] Speaker 02: They both basically do the same thing for the kids and they both prevail before a hearing officer and they both submit invoices to the district requesting payment. [00:21:48] Speaker 02: You're saying that one should be paid market rate [00:21:51] Speaker 02: based on the broader market, and the other one should be paid $90 an hour? [00:21:55] Speaker 00: Well, I'm saying the district judge has the discretion to view the circumstances of the case and make that judgment. [00:22:03] Speaker 00: And parents are not required to accept counsel under the CJA in that circumstance that a parent who would be free to retain for the special education services the attorney that the other child had already engaged for that purpose. [00:22:19] Speaker 00: But one point before I conclude, if I could, even if the court finds that the district court here erred, there were a number of issues that were raised in the motions that were not addressed by the district court. [00:22:35] Speaker 00: And that includes, first, whether the plaintiffs have provided sufficient evidentiary support for the rate they claim under Laffey. [00:22:46] Speaker 00: And then second, even if they did, whether that rate was reasonable, whether the $90 an hour rate [00:22:54] Speaker 00: was the prevailing rate, whether the $250 an hour that Mr. Bergeron invoiced the public schools was the reasonable rate, whether Laffey's the reasonable prevailing rate or some percentage of it. [00:23:09] Speaker 00: All those are still issues, including whether all of the hours were reasonable. [00:23:15] Speaker 00: Some were specifically challenged. [00:23:16] Speaker 02: Did you argue below that something other than the eight dollars was the appropriate rate? [00:23:21] Speaker 00: Yes. [00:23:22] Speaker 00: It's in the district's motion. [00:23:24] Speaker 00: I believe it's ECF 12-1, and I think it's at pages 3 and 7. [00:23:31] Speaker 00: Well, in other pages as well. [00:23:33] Speaker 00: But yes, it was specifically argued that... Did you argue in your brief before us that something in between 90 and laughing would [00:23:45] Speaker 00: Well, we dropped a footnote to say that the district court never addressed those issues and that having not passed on it, even if the district court erred, though it should be remanded for that, for the district court to address in the first instance all of those issues. [00:24:04] Speaker 00: including whether or not, I mean, $505 is the current rate or the then current rate. [00:24:10] Speaker 00: It wasn't the historical rate at the time the work was done. [00:24:14] Speaker 00: That's another issue. [00:24:14] Speaker 00: But there were several issues that were raised in the district's motion that weren't addressed and at minimum should be addressed even if this court finds that it had aired. [00:24:28] Speaker 00: There's nothing further. [00:24:35] Speaker 04: Ms. [00:24:38] Speaker 04: Rosenbaum, you had no time remaining. [00:24:40] Speaker 04: We'll give you a minute if you need it. [00:24:42] Speaker 05: Thank you. [00:24:42] Speaker 05: The district's arguments about the narrow market and about having accepted appointment don't account for the long range of cases beginning with Bloom and including Save Our Cumberland Mountains [00:24:57] Speaker 05: that made clear that the amount accepted does not govern the fee rate. [00:25:02] Speaker 05: The fact that he accepted appointment under the terms of the CJA does not mean that that's the rate in the fee shifting when the clients seek fees under a fee shifting provision as made clear by that line of cases. [00:25:16] Speaker 05: And this court has also rejected the argument that there is a narrow market just of the people who seek reduced fees. [00:25:24] Speaker 05: If that were the case, then in Bloom, it could have been argued that the market was just the group of people who provided pro bono representation, so the market rate was zero. [00:25:33] Speaker 05: But the Supreme Court rejected that argument and said instead that clients were entitled to fees at prevailing market rates. [00:25:41] Speaker 05: That's also what the IDEA specifically provides in its text, and that's what should have been awarded here. [00:25:47] Speaker 05: Thank you. [00:25:49] Speaker 04: Thank you. [00:25:50] Speaker 04: The case will be submitted.