                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
F.S., et al.,                  )
                               )
          Plaintiffs,          )
                               )
               v.              ) Civ. Action No. 10-1203 (EGS)
                               )
DISTRICT OF COLUMBIA,          )
                               )
          Defendant.           )
______________________________)


                        MEMORANDUM OPINION

    Pending before the Court is [53] a motion to alter or amend

this Court’s [52] Order filed by the plaintiffs, pursuant to

Federal Rules of Civil Procedure 59(e) and 60(b), requesting

that the Court “amend or reconsider its order reducing the legal

fees awarded to [plaintiffs] . . . in light of a recent opinion

by District Judge Beryl A. Howell in Robinson v. District of

Columbia.”   See Reply, ECF No. 55 at 2.   Upon consideration of

the motion, the response and reply thereto, the applicable law,

and the entire record, the Court DENIES [53] plaintiffs’ motion.

I. Background

    On March 25, 2013, the Court found that the attorney’s rate

of $365 per hour was “eminently reasonable,” and awarded

plaintiffs full attorneys’ fees and costs that accrued pursuing

the underlying substantive Individuals with Disabilities

Education Act (“IDEA”) administrative action. See March 25, 2013
Minute Order.   On June 21, 2013, plaintiffs filed a motion for

attorneys’ fees and costs associated with the work performed in

securing the attorneys’ fees resulting from the original

administrative action.    This is a request generally known as

seeking “fees on fees.”    In that motion, plaintiffs also sought

attorneys’ fees and costs associated with the work performed in

briefing the “fees on fees” motion.    This is a request generally

known as seeking “fees on fees on fees.”

      This Court, pursuant to Local Civil Rule 72.3(a)(3),

referred plaintiffs’ motion to Magistrate Judge Alan Kay for a

report and recommendation.    See October 3, 2013 Minute Order.

On April 18, 2014, Magistrate Judge Kay issued a report and

recommendation. See Report and Recommendation, ECF No. 48.

Magistrate Judge Kay recommended that the reasonable rate for

“fees on fees” litigation is two-thirds of the reasonable rate

for the underlying IDEA litigation because “[a]ttorneys’ fee

work is less complex and more formulaic than the underlying IDEA

[substantive] work.” Id. at 9. Magistrate Judge Kay further

recommended denying the plaintiffs’ “fees on fees on fees”

request because the Court needs to “draw a line to avoid

plaintiffs extending their claims for fees ad infinitum.” Id. at

12.

      On August 1, 2014, the Court issued an [52] Order accepting

the findings and adopting the recommendations of Magistrate

                                  2
Judge Kay’s report and recommendation.       See August 1, 2014

Order, ECF No. 52.    On August 29, 2014, plaintiffs filed the

pending motion to amend or alter judgment under Federal Rules of

Civil Procedure 59(e) and 60(b). See Motion, ECF No. 53. On

September 8, 2014, the District of Columbia filed its

opposition.    See Opposition, ECF No. 54.    On September 18, 2014,

the plaintiffs filed their reply.     See Reply, ECF No. 55.

Plaintiffs’ motion to amend or alter judgment is now ripe for

determination by the Court.

II. Analysis

    The law in this Circuit is clear: A “Rule 59(e) motion may

not be used to . . . raise arguments or present evidence that

could have been raised prior to the entry of judgment.”        See GSS

Group Limited v. National Port Authority, 680 F.3d 805, 812

(D.C. Cir. 2012) (internal quotation marks omitted); see also

Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)(“Rule

59(e) . . . may not be used to relitigate old matters, or to

raise arguments or present evidence that could have been raised

prior to the entry of judgment.”) (internal quotation marks

omitted).   A motion filed under Rule 59(e) “need not be granted

unless the district court finds that there is an ‘intervening

change of controlling law, the availability of new evidence, or

the need to correct a clear error or prevent manifest

injustice.’” See Firestone v. Firestone, 76 F.3d 1205, 1208

                                  3
(D.C. Cir. 1996) (per curiam) (internal quotation marks

omitted).

    “[T]o secure relief under Rule 60(b), a litigant must

establish not only that one of the rule’s enumerated grounds for

relief is satisfied, but also some ‘actual prejudice’ flowing

from the supposed misconduct or other circumstances claimed to

warrant relief.”   See Armenian Assembly of America, Inc. v.

Cafesjian, 758 F.3d 265, 283 (D.C. Cir. 2014); Summers v. Howard

Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004). The movant must

show that it was foreclosed from making a “full and fair

preparation or presentation of its case.” See In re Hope 7

Monroe St. Ltd. P’ship, 743 F.3d 867, 875 (D.C. Cir. 2014).     The

movant has the burden to establish that they are entitled to

relief under Rule 60(b). See Dronsejko v. Thornton, 632 F.3d

658, 672 (10th Cir. 2011).

    In their motion, plaintiffs argue that the Court, in light

of Robinson v. District of Columbia, committed “error” and

“abuse[d its] discretion” by reducing the attorneys’ hourly

rates to two-thirds of the actual rate charged by the attorneys.

See Reply, ECF No. 55 at 2, 9.   Plaintiffs do not cite to an

intervening change of controlling law, the availability of new

evidence, any other “clear errors”, or allege any “actual

prejudice.”   See Firestone, 76 F.3d at 1208; Armenian Assembly

of America, 758 F.3d at 283.

                                 4
     In Robinson, the Court addressed whether the plaintiff

could recover all attorneys’ fees and costs that accrued

pursuing the underlying substantive IDEA administrative action.

The Robinson Court answered with a resounding yes.   See

generally Robinson v. District of Columbia, 2014 WL 3702853

(D.D.C. July 28, 2014).   Likewise, this Court, on March 25,

2013, awarded plaintiffs full attorneys’ fees and costs that

accrued pursuing the underlying substantive IDEA administrative

action.   The Robinson Court did not address, however, the issue

presented to this Court concerning whether plaintiff can recover

all attorneys’ fees and costs for “fees on fees” and “fees on

fees on fees” litigation.1 Plaintiffs’ reliance on Robinson v.

District of Columbia is therefore misplaced.

     Further, the Court’s opinion is consistent with this

Court’s precedent.   For example, in Means v. District of

Columbia, Judge Contreras adopted Magistrate Judge Kay’s report

and recommendation reducing the attorney rate for “fees on fees”

litigation to 50% of the Laffey matrix hourly rate. See Means v.

District of Columbia, 999 F. Supp.2d 128, 136 (D.D.C. 2013).

Similarly, in Garvin v. District of Columbia, Judge Walton

reduced the attorneys’ hourly rates for “fees on fees”


1
  The plaintiff in Robinson recently filed a motion requesting
that the “Court award ‘fees on fees.’” See Case No. 13-1006,
ECF No. 26. The plaintiff subsequently filed a notice of
withdrawal with prejudice of that motion. Id. at ECF No. 27.
                                 5
litigation to 50% of the Laffey matrix hourly rate.        See Garvin

v. District of Columbia, 910 F. Supp.2d 135, 141 (D.D.C. 2012).

III. Conclusion

    For the reasons stated above, [53] plaintiffs’ motion to

alter or amend this Court’s [52] Order is DENIED.     An

appropriate Order accompanies this Memorandum Opinion.

    SO ORDERED.

Signed: Emmet G. Sullivan
        United States District Judge
        October 2, 2014




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