                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

KATRINA MEANS, et al.,                            :
                                                  :
       Plaintiffs,                                :       Civil Action No.:      11-cv-0382 (RC)
                                                  :
       v.                                         :       Re Document No.:       21, 26, 27
                                                  :
DISTRICT OF COLUMBIA,                             :
                                                  :
       Defendant.                                 :

                                  MEMORANDUM OPINION

        SUSTAINING PLAINTIFFS’ OBJECTIONS TO THE MAGISTRATE’S REPORT AND
    RECOMMENDATION AND ADOPTING THE REMAINING FINDINGS OF THE MAGISTRATE’S
                          REPORT AND RECOMMENDATION

                                      I. INTRODUCTION

       Plaintiffs, Katrina Means et al., were the prevailing parties in an administrative due

process hearing brought pursuant to the Individuals with Disabilities in Education Act (“IDEA”).

Plaintiffs then moved for reasonable attorney’s fees as a result of that litigation. The issue was

referred to Magistrate Judge Kay, whose July 17, 2013 Report and Recommendation (“R&R II”)

found that 20 U.S.C. § 1415(i)(3)(D)(i) precluded the plaintiffs from recovering fees after

February 27, 2013. This is because Judge Kay’s October 11, 2012 Report and Recommendation

(“R&R I”) awarded the plaintiffs less money than the defendant offered in their February 27,

2013 Offer of Judgment. Plaintiffs now object to Judge Kay’s findings in the R&R II, arguing

that the Offer of Judgment was ambiguous and thus does not bar recovery of fees generated after

that date. Defendant asks the Court to overrule the plaintiffs’ objection and adopt the

magistrate’s report. Defendant also raises a new objection to the magistrate’s report, that

awarding fees-on-fees in IDEA litigation is wholly unconstitutional. Because the Court finds that
the defendant’s offer of judgment was not greater than the plaintiffs’ actual recovery, and that the

defendant did not properly object to the magistrate’s failure to consider his constitutional

argument, it sustains the plaintiffs’ objections. The Court adopts the magistrate’s report and

recommendation in part and amends in part.


                                II. FACTUAL BACKGROUND

                                    A. The IDEA Proceeding

       Plaintiffs were the prevailing parties in an administrative due process hearing on March

25, 2010. Following this, defendant, the District of Columbia, agreed to reimburse the plaintiffs

for “reasonable and documented attorney’s fees.” Dismissal Order at 2, Docket No. 10, Ex. 5.

The plaintiffs submitted two invoices for attorney’s fees and costs totaling $29,550.69. Pls.’

Statement of Material Facts ¶ 5, n.1, Docket No. 10, Ex. 1. Defendants, through D.C. Public

Schools (DCPS) paid $12,976.58 of the plaintiffs’ requested amount. Plaintiff then filed suit in

this Court for the remaining $16,574.11. Pls.’ Statement of Material Facts 10-1 ¶¶ 7 10, 12.


                   B. The Magistrate’s First Report and Recommendation

       Plaintiffs’ motion for summary judgment on the unpaid attorney’s fees, totaling

$16,574.11, was submitted by this Court to Magistrate Judge Kay for a report and

recommendation. See generally Docket No. 21, 22, 25. Judge Kay recommended that this Court

grant in part and deny in part the plaintiffs’ motion for summary judgment, awarding plaintiffs

$9,910.92 in unpaid fees. Oct. 11, 2012 Report and Recommendation, Docket No. 14. On

February 27, 2013, after Judge Kay had issued R&R I but before the report had been adopted by

this Court, the defendant made an offer of judgment to the plaintiff for $13,000.00 to settle all

claims. Def’s Opp’n to Pls’ Mot. for Atty’s Fees and Costs, Ex. 1, Docket No. 22. The plaintiffs



                                                 2
did not communicate further and the offer was rejected through inaction. Def.’s Opp’n at 13. On

March 7, 2013, this Court adopted Judge Kay’s R&R I for an award of $22,887.50, offset by the

$12,976.57 paid by the defendant, leaving $9,910.92 to be paid. Id.


     C. The Magistrate’s Second Report and Recommendation and the Instant Action

   The plaintiffs now ask for $19,737.48 in fees and costs (fees on fees) 1 for work done on the

motion for attorney’s fees. Pls.’ Mot. Atty Fees and Costs, Docket No. 21. The plaintiffs seek

reimbursement for 38.3 hours of work by Elizabeth Jester, the plaintiffs’ attorney, and 0.8 hours

of work by Mary Williams, Ms. Jester’s paralegal, totaling $19,457.00. Id. Ms. Jester’s hourly

rate is $505.00 and Ms. Williams’s hourly rate is $145.00. See id. Thus far, the defendant has not

made any payment for these fees. On July 17, 2013, Judge Kay filed a second Report and

Recommendation (R&R II) on the plaintiffs’ motion, resolving two issues regarding the

plaintiffs’ proposed fees-on-fees amount: 1) the total number of hours for which plaintiffs could

receive reimbursement of attorney’s fees, and 2) the reasonable hourly rate for those

compensable hours.


  1. Judge Kay reduced the number of hours for which plaintiffs could receive attorney’s fees

       Plaintiffs proposed 40.1 total hours worked on the fees-on-fees litigation. Judge Kay

subtracted 1 hour of Ms. Jester’s work relating to the plaintiffs’ 42 U.S.C. §1983 claim as it was

dismissed, and 3.8 hours of Ms. Jester’s work regarding objections to R&R I. R&R II at 5. Judge

Kay noted that the plaintiffs had no right to fee recovery on those actions because this Court

decided both claims against the plaintiffs. See id.


       1
         Fees on fees litigation refers to the claim brought by a party who is awarded attorney’s
fees, seeking compensation for the hours spent in bringing the underlying claim. Here, the instant
action is to recover the attorney’s fees incurred while the plaintiffs’ attorneys sued the defendant
for the remaining balance on their invoice.

                                                  3
        Judge Kay also found that the plaintiffs could not claim any work done after February 27,

2013, the date of the defendant’s offer of judgment. R&R II at 6. Under 20 U.S.C.

§1415(i)(3)(D)(i), plaintiffs cannot be awarded attorney’s fees for work done after being offered

a settlement sum higher than the subsequent award granted by the district court. Because the

$13,000 the defendant offered was more than the $9,910.92 this Court awarded when this Court

adopted R&R I, Judge Kay subtracted 7.3 hours for the work Ms. Jester claimed after February

27, 2013. R&R II at 7. Judge Kay thus found that plaintiffs were owed for 27 hours worked on

the fees-on-fees litigation. Id.


2. Judge Kay adjusted downward the reasonable hourly rate for attorney’s fees using the Laffey
                                          Matrix


    Once the total number of reimbursable hours had been determined, Judge Kay next

calculated the reasonable hourly rate for those hours, using the Laffey matrix. In Laffey v.

Northwest Airlines, Inc., the D.C. Circuit adopted a matrix, which provides presumptively

reasonable hourly rates for complex litigation based on the attorney’s years of experience, skill,

and expertise. See generally Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983),

rev'd on other grounds, 746 F.2d 4 (D.C.Cir.1984). The United States Attorney’s Office for the

District of Columbia has updated this matrix to account for cost of living increases. 2 Rooths v.

District of Columbia, 803 F.Supp.2d 56, 61 (D.D.C. 2011). Using this updated matrix, Judge

Kay found that the “reasonable” hourly rate for Jester’s attorney’s fees was only a portion of the

Laffey rates. See R&R II at 7-8 (citing Rooths, 802 F. Supp.2d at 62-63).




        2
         The Laffey Matrix is available at
http://wwwjustice.gov/usao/dc/divisions/civil_Laffey_Matrix_2003-2012.pdf.

                                                 4
       Sister courts have previously used 50% of the Laffey rates as a reasonable per hour

charge for non-complex litigation over attorney’s fees. See R&R II at 8 (citing cases where fee-

on-fee litigation entitled the plaintiffs to one-half the applicable rate under the Laffey matrix).3

Judge Kay applied the same rates to calculate plaintiffs’ fees and recommended $6,306.63 in

compensation for labor relating to the fees-on-fees litigation.4 Id. at 10. Judge Kay also

recommended reimbursement for additional costs incurred by plaintiffs, including costs for filing

the complaint, summons, copying, postage, and mileage. The recommended reimbursement for

these costs totaled $516.98. Id. In sum, for all fees and costs relating to the plaintiffs’ fees-on-

fees claim, Judge Kay recommended $6,823.61 Id. at 11.

       Defendant did not file a timely objection to R&R II but now attempts to revive its

original argument that the IDEA does not permit fees-on-fees at all. Def. Opp’n to Obj. R&R II,

ECF No. 28. Plaintiffs timely object to Part I of Judge Kay’s recommendation, which excludes

hours worked after the defendant’s February 27, 2013 offer of judgment. Pl’s. Obj. R&R II, ECF

No. 27. Plaintiffs argue: 1) that R&R II improperly discounted work done after the defendant’s

offer of judgment; and 2) that it is improper for this Court to consider objections to R&R II not

timely raised by the defendant. Pl’s. Reply Def. Opp’n Pls.’ Obj. R&R II, ECF No. 29.




       3
          This finding converted Jester’s hourly rate to $247.50 before May 31, 2012 and $252.50
for work on and after June 1, 2012. Id at 9. Williams’s hourly rate of $145 received a 75%
reduction, creating a rate of $108.75 per hour. Id. Judge Kay then imposed a different hourly rate
for Jester’s travel time. Id. Finding support in Bucher v. D.C., 777 F.Supp.2d69, 77 (D.D.C.
2011), he reduced the travel time rate to $126.25, half of Jester’s suggested hourly rate.
       4
         This breaks down to 4.4 hours at $237.50, 7.9 hours at $247.50, 11.6 hours at $252.50,
0.8 hours at $108.75, and 2.3 hours at $126.25.

                                                   5
                                    III. LEGAL STANDARD

       District courts must apply a de novo standard of review when considering objections to,

or adoption of, a magistrate judge’s Report and Recommendation. Gardrill v. District of

Columbia, 930 F.Supp.2d 35 (D.D.C. 2013); Estate of Heiser v. Islamic Republic of Iran, 466 F.

Supp. 2d 229, 255-56 (D.D.C. 2006) (citing 28 U.S.C. § 636(b)(1)(B)); 28 U.S.C. §

636(b)(1)(B); LcvR 72.3. “A judge of the court may accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” Heiser, 466 F.Supp.2d at

255-56; see also Smith v. D.C., 846 F. Supp. 2d 197, 199 (D.D.C. 2012) (citing Fed.R.Civ.P.

72(b)(3)); Roell v. Withrow, 538 U.S. 580, (2003) (noting that a district court is “free to do as it

sees fit with [a] magistrate judge's recommendations” made under authority of 28 U.S.C. §

636(b)(1)).

       This Court must thus determine whether the Magistrate’s award recommendation

comports with this Court’s own understanding of IDEA awards in fees-on-fees litigation. Under

the IDEA, this Court has the discretion to “award reasonable attorney’s fees as part of the

costs...to a prevailing party who is the parent of a child with a disability” in an administrative

proceeding. 20 U.S.C. § 1415(i)(3)(B)(i)(I). “Courts typically determine the reasonableness of

attorney’s fees based on the ‘number of hours reasonably expended on the litigation multiplied

by a reasonable hourly rate.’” Jackson v. District of Columbia, 696 F.Supp.2d 97, 101 (D.D.C.

2010) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433(1983)); see also In re North, 59 F.3d

184, 189 (D.C.Cir.1995). Plaintiffs may submit an “invoice that is sufficiently detailed to ‘permit

the District Court to make an independent determination whether or not the hours claimed are

justified.’” Holbrook v. District of Columbia, 305 F.Supp.2d 41, 45 (D.D.C. 2004), (quoting

Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)).



                                                  6
                                          IV. ANALYSIS

A. This Court does not consider the merits of Defendant’s claim that a fees-on-fees award
   under the IDEA is unconstitutional


          Defendant did not timely object to the Magistrate’s R&R II. Defendant now raises an

objection for this Court’s review, arguing that any award of fees-on-fees compensation under the

IDEA is unconstitutional. This Court does not reach the merits of the argument, dismissing the

objection because it was not timely raised.


          Under 28 U.S.C. §636(b), a court shall hear objections to a magistrate’s report and

recommendation, if such objection has been timely raised (i.e. within 14 days). 28 U.S.C.

§636(b)(1); see also FED. R. CIV. P. 72(b) (providing that “[A] party may serve and file

specific, written objections to the proposed findings and recommendations” of a magistrate judge

within 14 days after being served with a copy of the report and recommendation, and thereby

secure de novo review by the district court); LCvR 72.3(c) (mandating that district courts

conduct de novo review of a magistrate’s recommendations only if objection is made pursuant to

the specificity and filing requirements set forth in 72.3(b)). Whether a district court must also

review untimely filed objections to a magistrate’s report and recommendation is an issue to be

determined by each circuit. Thomas v. Arn, 474 U.S. 140, 152 (1985) (upholding a Sixth Circuit

rule that precluded district courts from reviewing de novo untimely objections because

“Congress, in enacting §636(b)(1)(C)…did not preclude treating the failure to object as a

procedural default, waiving the right to further consideration of any sort.”) After Thomas, a

waiver rule is neither mandated by §636(b)(1)(C), nor precluded if a circuit wishes to adopt such

a rule.




                                                  7
        The D.C. Circuit has not yet ruled on this issue. See Powell v. United States Bureau of

Prisons, 927 F.2d 1239, 1247-48 (D.C. Cir. 1991) (recognizing the question regarding de novo

review but declining to rule on the issue because of other substantive errors in the magistrate’s

report). Although the majority in Powell did not reach this issue, Judge Sentelle’s dissenting

opinion did reach the issue and agreed with the majority view, that a district court may exercise

de novo review under 28 U.S.C. §636(b)(1) if, and only if, the party has made a timely and

specific objection to the magistrate’s report. Id. (“While this Court has never directly addressed

the issue, I find the view espoused by the majority of circuits – that a failure to object to an issue

ends entitlement to a de novo review of that issue – to be more persuasive.”) Judge Sentelle cites

favorably to the Fifth Circuit’s opinion in Nettles v. Wainwright, which emphasized that judicial

efficiency mandated such a rule, even for pro se plaintiffs. 677 F.2d 404, 409-10 (5th Cir. Unit B

1982). According to the Nettles court,


        It is reasonable to place upon the parties the duty to pinpoint those portions of the
        magistrate’s report that the district court must specially consider. This rule
        facilitates the opportunity for district judges to spend more time on matters
        actually contested and produces a result compatible with the purposes of the
        Magistrates Act.

        Id. at 410; see also Thomas¸ 474 U.S. at 148 (“Absent such a rule…the district court

[would be forced] to review every issue in every case, no matter how thorough the magistrate’s

analysis…[the] result would be an inefficient use of judicial resources.”); Douglass v. United

Services Auto. Ass’n, 79 F.3d 1415, 1421 (5th Cir. 1996) (same); Park Motor Mart, Inc. v. Ford

Motor Co., 616 F.2d 603 (1st Cir. 1980) (holding that the purpose of the Magistrates Act is to

relieve judge’s workload; if party does not file objections, it is therefore not entitled to later

review). In essence, these courts have held that an untimely objection to the magistrate’s report

and recommendation constitutes a waiver of that issue.


                                                   8
       Other district courts to consider this issue have followed this reasoning. See e.g., Self v.

LaValley, 2013 WL 1294448, at *3 (N.D.N.Y. 2013) (noting that a contrary rule would

“undermine compliance with …deadlines, unnecessarily prolonging already old cases”); United

States v. Asbury, 2006 WL 1597559, at *1 (W.D.N.C.) (following the 4th Circuit’s rule that a

party waives their right to de novo review if an objection is either untimely or overly general);

Webb v. Califano, 468 F.Supp. 825, 830-1 (E.D.Cal. 1979) (finding waiver of review by the

district court; “[h]aving failed to object within the time provided, the parties cannot mandate a de

novo review; they may only suggest it.”). The advisory notes to Fed. R. Civ. P. 72 confirm this

understanding. FED. R. CIV. P. 72. The 1991 amendment to Rule 72 intended to “assure that

objections to magistrate’s orders that are not timely made shall not be considered.” FED. R. CIV.

P. 72(b), advisory note to the1991 amendment.


       Here, Defendant concedes that he did not timely raise his constitutional objection. Def’s

Resp’n Pl’s Opp’n at 6. Because this Court finds Judge Sentelle’s and other circuits’ reasoning

persuasive, and because defendant did not timely raise its objection to the magistrate’s report and

recommendation, this Court does not consider the merits of defendant’s constitutional objection

to fees-on-fees awards under the IDEA.


   B. The plaintiffs are entitled to fees incurred after the defendant’s offer of judgment

   In R&R II, Judge Kay found that the plaintiffs could not claim fees for any work done after

February 27, 2013, the date of the defendant’s offer of judgment. This is because the defendant

offered $13,000 to settle all claims, which Judge Kay found to be a higher amount than the

award eventually accepted by this Court on March 7, 2013. Under Fed. R. Civ. P. 68, an offer of

judgment greater than plaintiffs’ actual award would bar recovery for work completed after the

offer of judgment. FED. R. CIV. P. 68 Plaintiffs now object to the Magistrate’s recommendation

                                                 9
to exclude those hours. Plaintiffs argue: 1) that the settlement terms as offered are ambiguous,

and that under an alternate reading, the settlement offer of $13,000 was less than the amount

actually awarded to the plaintiffs, and 2) that their rejection of defendant’s offer was

“substantially justified” because they had, in good faith, determined that the likelihood of

obtaining an award of fees in excess of $13,000 was significant. Because this Court finds that the

plaintiffs’ actual recovery is higher than defendant’s offer of judgment, Fed. R. Civ. P. 68 is not

implicated and the plaintiffs are entitled to attorney’s fees after February 27, 2013. This Court

does not reach the issue of substantial justification.

   The IDEA provides that fees:

       may not be awarded and related costs may not be reimbursed ... for services
       performed subsequent to” the submission of the offer where (1) defendants have
       submitted a “written offer of settlement to a parent”; (2) the offer is made within
       the time limits set forth in Rule 68; (3) the offer is not accepted within ten days;
       and (4) “the relief finally obtained by the parents is not more favorable to the
       parents than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D)(i).

B.L. Through Lax v. D.C., 517 F. Supp. 2d 57, 60 (D.D.C. 2007). There is one exception to this

rule. Attorney’s fees may still be awarded to a prevailing party for work done after a defendant’s

settlement offer if the prevailing party “was substantially justified in rejecting the settlement

offer.” 20 U.S.C. § 1415(i)(3)(E). The IDEA specifically incorporates the limits set forth in Rule

68, which states in relevant part:


       At least 14 days before the date set for trial, a party defending against a claim may
       serve on an opposing party an offer to allow judgment on specified terms, with
       the costs then accrued.... If the judgment that the offeree finally obtains is not
       more favorable than the unaccepted offer, the offeree must pay the costs incurred
       after the offer was made.

Fed.R.Civ.P. 68 (emphasis added). “The burden is on the oferror to make a clear and precise

offer that will be readily comparable to any judgment that may be obtained” and “in determining

the meaning of the offer, the court is to look to the language of the offer” alone. Jones v.

                                                  10
Fleetwood Motor Homes, Inc., 127 F.Supp.2d 958, 968 (D.Ill. 2000). Thus, ambiguities will be

construed against the party who drafted the offer. Id. To determine whether a defendant’s offer

of judgment is greater than plaintiffs’ actual award, the court must first enquire whether

defendant’s offer includes pre-offer costs and attorney’s fees. Goos v. National Ass’n of Realtors,

68 F.3d 1380, 1382 n.1 (D.C. Cir. 1996). If the pre-offer fees and costs are included in

defendant’s offer, then “[t]he proper comparison is between the amount of the settlement offer

on the one hand, and the sum of the damages award and the pre-offer costs and attorneys’ fees on

the other.” Alfonso v. Aufiero, 66 F.Supp.2d 183, 202-3 (D.Mass. 1999) (citing to Marek v.

Chesney, 473 U.S. 1, 7 (1985)). Post-offer costs on the other hand should not be included in

determining whether the settlement offer is greater than plaintiffs’ actual recovery. Marek, 473

U.S. at 7. (noting that the inclusion of post-offer costs for Rule 68 analysis would violate the

purposes of the Rule, as “post-offer costs merely offset part of the expense of continuing the

litigation to trial”).

        Defendant offered plaintiffs $13,000 to settle all claims “inclusive of reasonable and

statutorily allowable attorneys’ fees and costs accrued to date.” Def’s Opp’n. to Pl’s Mot. for

Atty’s Fees and Costs, Exh. 1, at 1. This Court does not find the offer ambiguous. The only claim

remaining at the time of the offer was the plaintiffs’ claim of attorneys’ fees for work performed

on the IDEA suit. Defendant offered $13,000 to settle the remainder of the attorneys’ fees claim

and any additional fees and costs associated with work on that claim. Thus, the $13,000 is

intended to compensate plaintiffs for the remaining $16,574.11 requested by the plaintiffs, as

well as any fees-on-fees.


    Plaintiffs’ actual recovery is greater than $13,000. Judge Kay recommended, and this Court

accepted an award of $9,910.92 for plaintiffs’ work on the IDEA litigation. R&R I at 14. Judge


                                                 11
Kay recommended $6,823.61 for fees and costs associated with plaintiffs’ work on their motion

for attorney’s fees, up until February 27, 2013. R&R II at 11. Together, plaintiffs were awarded

$16,734.53 for work completed up until the date of defendant’s offer of judgment. Because

$16,724.53 is greater than defendant’s offer of $13,000, this Court finds that Rule 68 is not

implicated. Plaintiffs are thus entitled to reasonable fees for work completed after February 27,

2013.


          C. Calculation of fees-on-fees for hours worked after February 27, 2013

        Judge Kay recommended, and the parties do not contest, an hourly rate of $252.50 for

work done after June 1, 2012, on the fees-on-fees litigation. This represents 50% of the Laffey

matrix hourly rate. R&R II at 9, Docket No. 26; see, e.g., Wright, 883 F.Supp.2d at 135–36

(D.D.C. 2012) (reducing rate to half of the maximum Laffey rate for fee litigation); Garvin v.

Gov't of D.C., 910 F. Supp. 2d 135, 141 (D.D.C. 2012). This Court adopts the recommended rate

to calculate the reasonable fees appropriate for work completed by Ms. Jester after February 27,

2013.

        To determine the number of reasonable hours spent on this claim after February 27, 2013,

this Court looks to plaintiffs’ submitted invoice, which details the date, time expended, and a

description of the work done. Pls.’ Mot. Atty’s Fees and Costs, Ex. 1. Ms. Jester reported 7.3

hours after February 27, 2013 for reviewing correspondence from opposing counsel regarding a

settlement offer, reviewing this Court’s order adopting Judge Kay’s recommendation, and

drafting and finalizing the motion for attorney’s fees. These hours are reasonable, non-




                                                12
duplicative, and non-frivolous. Therefore, this Court adds $1,800.335 to the Magistrate’s

recommendation of the plaintiffs’ fees and costs.


                                        V. CONCLUSION

       For the foregoing reasons, this Court sustains the plaintiffs’ objections to the July 17,

2013 Report and Recommendation and concludes that (1) the offer of judgment was not greater

than the plaintiffs’ actual recovery under Federal Rule of Civil Procedure 68; (2) the plaintiffs

are entitled to attorney’s fees and costs incurred after February 27, 2013; and (3) that the

plaintiffs shall be awarded a total of $8,623.946for attorney’s fees incurred in this fees on fees

litigation.7 An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: November 20, 2013                                             RUDOLPH CONTRERAS
                                                                     United States District Judge




       5
         This represents the rate of $252.50 per hour for the additional 7.3 hours Ms. Jester
incurred in litigation to obtain attorney’s fees.
       6
       This Court accepts all other factual findings of the magistrate’s report and
recommendations as they were uncontested by the parties in this case.
       7
          The Court notes that at a certain point fees-on-fees litigation unnecessarily protracts
litigation and becomes so far removed from the original adjudication that the prevailing parties
claim may be too attenuated. While Wright, 883 F.Supp.2d 132 at 134, decided that the time
spent drafting a motion for fees and costs is too attenuated, this court has not joined in that
conclusion. But see Garvin, 910 F.Supp. 2d. at 138-39 (“[T]he unavailability of “fees on fees”
awards in IDEA cases would essentially render the attorney’s fees provision of the IDEA
unenforceable, causing a party to forfeit any outstanding balance due to the prohibitive cost of
the litigation to recover it. The inability to enforce the attorney’s fees provision would, in turn,
undermine Congress' goal in enacting the fee-shifting provision by making it more difficult for
families to secure legal representation to enforce a child's rights under the IDEA”). However,
fees on fees on fees, as may be pursued by the plaintiff for the successful adjudication of the
current claim, may be too removed to be compensable.

                                                  13
