410 F.3d 1042
UNITED STATES of America, Plaintiff-Appellee,v.Kenneth CAMP, Defendant-Appellant.
No. 04-1310.
United States Court of Appeals, Eighth Circuit.
Submitted: November 17, 2004.
Filed: June 16, 2005.

Omar F. Greene, argued, Little Rock, AR, for appellant.
John R. White, Asst. U.S. Attorney, argued, Little Rock, AR, for appellee.
Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.

1
Kenneth Camp pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to thirty-six months of imprisonment to be followed by three years of supervised release. Camp appeals from the imposition of a term of supervised release that requires him to disclose financial information to his probation officer upon request. We affirm.

2
Officers from the Pine Bluff, Arkansas, Police Department responded to a call that shots had been fired from a car. An officer saw a car matching the description they had received. The officer obtained the license plate number and, as he followed it, the vehicle began to move more erratically and quickly. The police car deliberately stayed with the vehicle and a chase ensued, joined by other officers from the department. The officers eventually stopped the car. Camp was its only occupant, and a loaded .45 caliber weapon was found on the passenger seat. Because Camp had previously been convicted of the second degree felony of battery, he was indicted for being a felon in possession of a firearm.

3
Camp received a sentence of thirty-six months in prison followed by three years of supervised release. The district court specifically declined to impose a fine, telling Camp, "I'm not going to impose a fine because you can't pay a fine and you have these children to support. I'm also not going to require any type of restitution ...." The district court added four additional supervised release terms beyond the standard conditions, three of which are related to Camp's child support obligations. They include a requirement that Camp be employed or actively looking for employment, that he follow state court child support orders, and that he disclose financial information upon request of the probation office and not obtain new lines of credit without that office's approval. In announcing these terms, the district court stated, "I'm aware that you are in arrears of your child support and you have a sketchy employment history, and I hope that you can [im]prove on that."

4
Camp argues on appeal that the district court abused its discretion by imposing the special release condition that requires him to reveal financial information to the probation office upon request. While the appeal was pending but before the case was submitted, he also raised a Sixth Amendment challenge to the increase in the sentence he received for an earlier conviction without a jury having decided whether that offense was a crime of violence. Because Camp did not preserve this issue for appeal, we review it for plain error.

I.

5
The parties disagree on the standard of review with respect to the special condition of supervised release because they have differing views as to whether Camp raised a timely objection at the sentencing hearing. Camp asserts that he did object so as to preserve the claim of error under Federal Rule of Criminal Procedure 51 and that the appropriate standard is abuse of discretion. The government urges us to apply plain error review because it argues that Camp failed to raise an objection. We assume without deciding that Camp's counsel sufficiently called into question the propriety of the special condition so as to preserve the issue for appeal, as our disposition is the same under either standard.

6
The transcript reveals that the district court announced the special condition immediately following her recitation of the sentence. The condition had not been recommended in the presentence investigation report, so Camp and his counsel had no notice that it would be imposed. As soon as the district court concluded, Camp's counsel sought permission to make an inquiry about the required disclosure of financial information. She asked, "[B]eing that this is not a white collar crime, would he still be ... required to do that?" The district court responded:

7
Yes, he will be. Because I want him to support his children and he hasn't been doing that. That's going to be a special condition, that he pay child support. He will not only be in violation of the state court orders, he will be in violation of supervised release for me. And I'm going to direct the supervising officers to monitor that and to report to me any violation. So he might have to go back to prison if he fails to pay child support. That's important to me.

8
This exchange demonstrates that defense counsel questioned the propriety of the special condition because it was imposed in an atypical case. See U.S.S.G. § 5D1.3(d) (access to financial information recommended as special condition of supervised release if court imposes order of restitution, forfeiture, notice to victims, or fine). The district court understood and responded to the question, making it clear that she was not going to reconsider her decision. These are the hallmarks of preserving an issue for appeal. Cf. United States v. Henkel, 358 F.3d 1013, 1015 (8th Cir.2004) (plain error review appropriate for review of terms and conditions of supervised release where defendant did not object or request an explanation of the district court's decision concerning an imposed condition).

9
Because the record is sparse, however, and because the legal analysis yields the same result under either plain error or abuse of discretion, we need not decide whether counsel's inquiry satisfies the requirements of Rule 51. The United States Sentencing Commission2 duplicated and consolidated language contained in sentencing statutes that directs district courts to consider particular issues in determining conditions of supervised release. Certain conditions are required under 18 U.S.C. § 3583(d). That same statute also provides:

10
The court may order, as a further condition of supervised release, to the extent that such condition—

11
(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

12
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

13
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a);

14
any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.

15
As subsection (1) above directs, any discretionary conditions must be reasonably related to:

16
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; [and]

17
(2) the need for the sentence imposed —

18
...

19
(B) to afford adequate deterrence to criminal conduct;

20
(C) to protect the public from further crimes of the defendant; and

21
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; ...

22
18 U.S.C. § 3553. In sum, "conditions that restrict a probationer's freedom must be especially fine tuned." United States v. Prendergast, 979 F.2d 1289, 1293 (8th Cir. 1992) (quoting United States v. Tolla, 781 F.2d 29, 34 (2d Cir.1986)).

23
We have rejected conditions of release that were imposed without any evidence of their need and were not reasonably related to deterrence, protecting the public, or providing necessary training or correctional treatment. United States v. Scott, 270 F.3d 632 (8th Cir.2001) (district court abused its discretion by imposing special conditions of sex offenders on defendant convicted of armed bank robbery because conditions were not related to offense of conviction and not reasonably necessary to deter defendant from repeating fifteen-year-old sex crime); United States v. Kent, 209 F.3d 1073, 1075-78 (8th Cir. 2000) (defendant convicted of mail fraud and financial institution reporting violation should not have been subjected to condition whereby probation officer could force participation in counseling because condition bore no relationship to crime, it had no deterrent effect, there was no evidence of its necessity, and it was an excessive infringement on defendant's liberty); United States v. Bass, 121 F.3d 1218, 1223-24 (8th Cir.1997) (imposing special conditions forcing abstention from alcohol usage on defendant convicted of drug charge was abuse of discretion because no evidence of alcohol abuse existed and condition not reasonably related to goals of rehabilitation and protection of public); Prendergast, 979 F.2d at 1292-93 (abuse of discretion to impose special conditions prohibiting defendant convicted of wire fraud from consuming alcohol and being subject to warrantless searches for drugs and alcohol because no reasonable relationship exists between condition and goals of rehabilitation and protection).

24
Camp was convicted of a status offense, that of being a felon in possession of a firearm. Clearly, the condition of release is not reasonably related to this offense. However, the condition is reasonably related to Camp's history of non-payment of his child support obligations. We have noted that it is not necessary for a special condition to be related to all of the statutory factors, but rather they are to be weighed independently. Kent, 209 F.3d at 1076 n. 3 ("[I]t is not necessary that all of the factors ... be present in order to avoid a finding of abuse of discretion; rather, each are independent factors to be weighed. The special condition imposed need not be related to each and every one of the factors."). Section 3583 allows district courts to impose conditions in light of the defendant's history and characteristics and for the purposes of deterrence and protecting the public from future criminal conduct. Camp was subject to a state court order of child support that was in arrears. A condition that monitors Camp's financial obligations will help prevent him from diverting money away from his child support payments and will protect the financial needs of his children. See United States v. Barajas, 331 F.3d 1141, 1143-47 (10th Cir. 2003) (district court did not err in imposing conditions on defendant who pleaded guilty to being a felon in possession of a firearm requiring him to pay child support and undergo mental health counseling because the conditions relate to his history and characteristics).

25
The district court did not restrict Camp's liberty more than is reasonably necessary to fulfill the sentencing goals. The condition requires Camp to disclose financial information upon the request of the probation office and to obtain that office's approval before opening any new lines of credit. It is not a prohibition on behavior, but rather a monitoring device that is to be used by the probation office to complement the conditions that he follow state court child support orders and remain employed or actively seek employment. Although this condition is more typically used where the defendant is ordered to pay restitution or a fine, it is also available in other appropriate situations. See United States v. Behler, 187 F.3d 772, 780 (8th Cir.1999) (defendant not ordered to pay restitution or fine after conviction on drug-trafficking and related offenses but required to give probation officer access to financial information because it would allow monitoring his financial situation to detect return to drug distribution lifestyle).

26
The district court did not err by requiring Camp to make financial disclosures to the probation office upon request.

II.

27
Before the submission of this appeal, Camp's counsel provided a letter pursuant to Federal Rule of Appellate Procedure 28(j) challenging the constitutionality of Camp's sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court enhanced Camp's sentence under the Sentencing Guidelines because his criminal history included a felony conviction for a crime of violence. Camp alleges that his Sixth Amendment rights have been violated because the fact that his earlier conviction was for a crime of violence was not found by a jury. After submission, Camp filed a supplemental brief that applied the Supreme Court's holding in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to his argument.

28
Camp's argument is unavailing. The fact of a prior conviction need not be submitted to a jury or proved beyond a reasonable doubt. Booker, 125 S.Ct. at 756. This court has held that the nature of a conviction is to be treated no differently from the fact of a conviction for purposes of Sixth Amendment analysis. "Once the sentencing court determines that a prior conviction exists, it is a legal question for the court whether the crime meets the `crime of violence' definition of § 4B1.2 of the United States Sentencing Guidelines." United States v. Marcussen, 403 F.3d 982, 984 (8th Cir.2005) (decided post-Booker). This determination is made by examining the nature of the expressly charged conduct. United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001). In Camp's case, the charged conduct was battery. Because the district court was entitled to determine whether Camp had an earlier conviction for a crime of violence, Camp's sentence does not involve a Sixth Amendment violation.

29
Camp did not object in the district court to his sentence on the basis of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely, or the constitutionality of the Guidelines. Accordingly, we review under the plain error standard. Fed.R.Crim.P. 52(b). United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005). "The defendant has the burden of proving plain error.... Appellate review under the plain-error doctrine, of course, is circumscribed and we exercise our power under Rule 52(b) sparingly." Id. at 550 (citations omitted). That standard allows an error to be corrected that was not raised at trial if it was in fact an error, it was plain, and it affected the defendant's substantial rights. If those three conditions are met, the district court has discretion to correct the error if it seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

30
The district court committed an error that was plain by applying the Guidelines as mandatory, a practice that is no longer valid under Booker. Pirani, 406 F.3d at 550. As for the third part of the Olano test, Camp has the burden to demonstrate "a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory." Id. at 551. The record reveals no indication that the district court would have sentenced Camp to a shorter term but for the Guidelines. The record is silent on the issue, so Camp is unable to meet his burden. Accordingly, we conclude that Camp suffered no prejudice from the plain error.

31
We affirm.

Notes:

1
 The Honorable Susan Webber Wright, Chief Judge, United States District Court for the Eastern District of Arkansas

2
 The Sentencing Guidelines are now effectively advisory, and district courts have been directed that they may tailor a sentence in accordance with the factors listed in 18 U.S.C. § 3553(a)United States v. Booker, ___ U.S. ___, ___ - ___, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005). Most of that subsection already expressly applied to conditions of supervised release. 18 U.S.C. § 3583(d).


                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 ASHLEY MUSKELLY,

         Plaintiff,
                v.                                         Civil Action No. 18-740 (JEB)
 DISTRICT OF COLUMBIA,

         Defendant.

                                  MEMORANDUM OPINION

       Plaintiff Ashley Muskelly filed an administrative action against the District of Columbia

Public Schools, alleging that her son T.E. had been denied a free and appropriate public

education (FAPE) in violation of the Individuals with Disabilities Education Act. Before her

claim was adjudicated, the parties settled. Muskelly then brought this action demanding

$70,729.40 in attorney fees. Concluding that she is entitled to most, but not all, of the award she

seeks, the Court will grant in part and deny in part her Motion for fees.

I.     Background

       A brief sketch of the background is all that is required here. The purpose of IDEA is “to

ensure that all children with disabilities have available to them a [FAPE] that emphasizes special

education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A).

On October 16, 2017, Muskelly filed an administrative due-process complaint against DCPS,

alleging that T.E. had received an inappropriate individualized education program and been

denied a FAPE. See ECF 1 (Complaint), ¶ 8. The parties subsequently reached a settlement

before the claim proceeded to administrative adjudication, let alone court. They so informed a

                                                 1
hearing officer on December 20, 2017, and the settlement was incorporated into a Hearing

Officer Determination one week later. Id., ¶¶ 9–10.

       In seeking fees here, Plaintiff believes herself entitled to $70,729.40. Id., ¶ 16. The

District agrees she should collect some fees but suggests the award should be about $15,000 less.

See ECF No. 8 (Defendant’s Opposition) at 17–18.

II.    Analysis

       IDEA confers on the Court discretion to “award reasonable attorneys’ fees as part of the

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

Act. See 20 U.S.C. § 1415(i)(3)(B)(i)(I). In determining what amount, if any, is appropriate

under the statute, the Court makes two inquiries. First, it decides whether the party seeking fees

is “the prevailing party” and is thus eligible to receive any fees at all. See Jackson v. District of

Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). If so, the next question is whether the fee

sought is reasonable. A “reasonable” fee is one that is “sufficient to induce a capable attorney to

undertake the representation of a meritorious civil rights case,” Perdue v. Kenny A., 559 U.S.

542, 552 (2010), “but [that does] not produce windfalls to attorneys.” Blum v. Stenson, 465 U.S.

886, 897 (1984). The plaintiff has the burden of establishing reasonableness. See In re North,

59 F.3d 184, 189 (D.C. Cir. 1995).

       The District does not “dispute that Plaintiff is a prevailing party entitled to some

attorney[] fees and costs.” Opp. at 5. The only issue therefore is whether the amount of the

award Plaintiff requests is reasonable. On that issue, the D.C. Circuit has set forth a “three-part

analysis.” See Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (evaluating fees

under IDEA); Salazar v. District of Columbia, 809 F.3d 58, 61 (D.C. Cir. 2015) (applying

framework to § 1983 fee request). The first step is to “determine the ‘number of hours

                                                  2
reasonably expended in litigation.’” Salazar, 809 F.3d at 61 (quoting Eley, 793 F.3d at 100).

Next, the Court sets “the reasonable hourly rate.” Id. (quoting Eley, 793 F.3d at 100). The Court

last applies “multipliers as ‘warranted.’” Id.; see also George Hyman Const. Co. v. Brooks, 963

F.2d 1532, 1535–36 (D.C. Cir. 1992).

       Defendant challenges Muskelly’s request for fees under only the second step of the D.C.

Circuit’s framework. In other words, it does not contest the reasonableness of the number of

hours expended by Muskelly’s attorneys, and neither party contends that a multiplier is

warranted at the third step. The Court will therefore address just the second step — viz., the

appropriate rate. Afterwards, it will examine the only other remaining dispute: whether Plaintiff

is entitled to the approximately $4,800 in expert fees she seeks.

       A.      Reasonable Rate

       As is the case in so many of these challenges, the parties dispute what constitutes a

reasonable hourly rate by which the Court should calculate fee awards for IDEA matters in the

District. The statute states that “[f]ees awarded under this paragraph shall be based on rates

prevailing in the community in which the action or proceeding arose for the kind and quality of

services furnished.” 20 U.S.C. §1415(i)(3)(C). “Fee applicants in IDEA cases have relied on

two separate, but inter-related, approaches to providing evidence of prevailing market rate.”

Reed v. District of Columbia, 843 F.3d 517, 521 (D.C. Cir. 2016). They can demonstrate that

IDEA litigation qualifies as “complex federal litigation,” or they can “provid[e] evidence of the

fees charged, and received, by IDEA litigators.” Id.; see also Flood v. District of Columbia, 172

F. Supp. 3d 197, 210 (D.D.C. 2016). As Plaintiff pursues both approaches here, the Court will

address each in turn.

                                                 3
               1.      Complex Federal Litigation

       Plaintiff first contends that IDEA litigation is complex federal litigation to which the

rates enumerated in the USAO Attorney’s Fees Matrix presumptively apply. See ECF No. 7

(Motion) at 4 (citing Reed, 843 F.3d at 526). She offers two declarations — one from Michael

T. Kirkpatrick and one from Gary E. Mason — in support. See ECF Nos. 7-5 (Declaration of

Michael T. Kirkpatrick), 7-6 (Declaration of Gary E. Mason). The District rejoins that IDEA

litigation is not within the category of complex federal litigation as determined by an

overwhelming number of decisions in this district. See Opp. at 7–9 & n.2. As an initial matter,

the Court notes that neither party argues that the current Matrix — following its overhaul in 2015

— reflects rates beyond those for complex federal litigation and so might cover a broader

category of cases. The Court, consequently, will limit its analysis to the question of whether

IDEA litigation qualifies as complex federal litigation. If so, it will award USAO Matrix fees.

       IDEA cases, the Court believes, do not so qualify. This conclusion accords with the

weight of authority in this district. See, e.g., Lee v. District of Columbia, 298 F. Supp. 3d 4, 13

(D.D.C. 2018); Dobbins v. District of Columbia, 2017 WL 7510879, at *6 (D.D.C. Oct. 24,

2017) (“Accordingly, following the lead of other courts in this jurisdiction . . . the undersigned

finds that Plaintiff has failed to demonstrate that IDEA litigation in general is sufficiently

complex to justify the presumptive application of [Matrix] rates.”); Snead v. District of

Columbia, 139 F. Supp. 3d 375, 379 (D.D.C. 2015) (collecting cases and noting that courts in

this jurisdiction have interpreted Circuit law “as strongly suggesting that IDEA matters are

infrequently comparable to complex federal litigation, and therefore, full [Matrix] rates should

not be awarded in such cases”); Rooths v. District of Columbia, 802 F. Supp. 2d 56, 62–63

(D.D.C. 2011) (finding that IDEA case did “not much resemble the sort of complicated cases in

                                                  4
which a plaintiff’s counsel is appropriately awarded fees as the maximum allowable rate”

because “[l]ike most IDEA cases, the claim on which the plaintiff prevailed . . . involved very

simple facts, little evidence, and no novel or complicated questions of law”).

       Muskelly in rejoinder relies on a Circuit concurrence reasoning that IDEA litigation is

complex because — like Title VII litigation, which qualifies as complex — IDEA cases require

familiarity with non-legal subjects like child psychology, necessitate the retention of experts, and

involve a complex organization in the public-school system. See Motion at 4–5 (citing Reed,

843 F.3d at 528–29 (Tatel, J., concurring)). The Circuit, however, has already declined to adopt

the proposition that these features necessarily render it complex federal litigation. See Reed, 843

F.3d at 524–25. It elaborated that, while “attorneys who litigate IDEA cases may have

‘specialized non-legal knowledge[,]’ . . . this is true in a number of specialized fields” that are

not considered complex. Id. at 525. It also addressed the plaintiffs’ contention that “limited

discovery and pretrial exchange . . . makes preparing for and litigating IDEA cases more

complicated, especially because hearing officers typically allow respondents to spontaneously

adjust defenses.” Id. (internal quotation marks and citations omitted). The Circuit reasoned,

however, that the lack of discovery may in fact “suggest that IDEA cases are not as complex as

cases in which discovery is extensive.” Id. The Circuit concluded that future fee applicants

may be able to “divine a unifying thread that will bring IDEA cases under the umbrella of

‘complex federal litigation,’” but found nothing before it in that case so demonstrated. Id. at

526.

       Likewise, Muskelly has offered no evidence here that would clear that bar. She contends

that the Kirkpatrick and Mason declarations show that IDEA litigation is complex, see Motion at

5–7, but they do not bear the weight she places on them. The Kirkpatrick declaration, for one,

                                                  5
addresses IDEA litigation in the Supreme Court, see Kirkpatrick Decl., ¶ 7, which says little

about whether IDEA cases at this level are generally complex. Mason, by contrast, is not even

an IDEA litigator and has offered no specific experience with IDEA litigation. See Mason Decl.,

¶ 14. Instead, he suggests that these cases are complex because they involve inter-disciplinary

work with non-legal fields, a lack of discovery, the use of experts to make difficult

determinations regarding remedies and a student’s progression, and the interplay of federal and

state standards. Id., ¶¶ 15–19. The Circuit has already dismissed the proposition that either of

the first two features renders IDEA litigation complex. See Reed, 843 F.3d at 525. And neither

of the others gets Plaintiff across the finish line. The gravamen of the point about remedies is

that “IDEA requires mastery of non-legal disciplines to quantify harm and develop appropriate

remedies.” Mason Decl., ¶ 18. As discussed, however, requiring knowledge of such topics does

not render IDEA litigation complex. Finally, the declaration does not detail why the interplay of

federal and state standards makes the litigation especially difficult or complex, beyond

highlighting one case where multiple remands shuttled a case between Superior Court and

District Court, resulting in a “nuanced inquiry about subject matter jurisdiction and forum.” Id.,

¶ 15. That a single case may have an involved procedural history does not mean that IDEA

litigation generally is subject to those complications. (Indeed, the current case never made it

through a courthouse door, federal or state.) The more general assertion, moreover, that the

interplay of federal and state standards complicates IDEA litigation is the kind of “conclusory

statement[]” that the Circuit has concluded cannot “suffice to meet [Plaintiff’s] burden” to

demonstrate its status as complex. See Reed, 843 F.3d at 525.

       Put another way, the trouble for Plaintiff is that this Court’s approach is categorical —

that is, it must determine whether the paradigmatic IDEA case constitutes complex federal

                                                 6
litigation. See Reed, 843 F.3d at 521, 526 (noting that “fee applicants have focused their efforts

on attempting to demonstrate that IDEA cases fall within the bounds of [complex federal]

litigation” and reasoning that to be successful future fee applicants will have to “divine a

unifying thread that will bring IDEA cases under the umbrella of ‘complex federal litigation’”);

Lee, 298 F. Supp. 3d at 13 (explaining that “if a litigant is intent on seeking a fee using the

USAO matrix, she must show that IDEA cases are complex federal litigation”); Snead, 139 F.

Supp. 3d at 379 (“[T]he relevant inquiry is whether IDEA proceedings as a class of litigation

qualify as ‘complex federal litigation.’”) (citation omitted). As a result, Muskelly’s next position

— that IDEA litigation is at least as complex as some Freedom of Information Act and

Endangered Species Act cases where Matrix rates have been awarded — is unavailing. See

Motion at 7–8. Specifically, she points to four individual cases, arguing that they cannot have

been complex because few or no substantive motions appear on the docket. Id. Because the

inquiry must be generalized, the citation to a handful of cases that may not be representative of

their whole category is of limited use.

       Finally, even if the question of complexity were not categorical, Plaintiff would not fare

better. Despite the categorical language in Reed, “some judges in this District have applied

the . . . Matrix in the ‘unusual case’ where the applicant is able to show that her particular case is

‘unusually complex.” Lee, 298 F. Supp. 3d at 13 (citing Cox v. District of Columbia, 264 F.

Supp. 3d 131, 143 (D.D.C. 2017)). Muskelly offers no argument that her case falls within this

description. Indeed, it did not ultimately even go to administrative adjudication, let alone

proceed to a court. Rather, the parties settled approximately two months from the date she filed

her administrative complaint. See Compl., ¶¶ 8–9. Under these circumstances, the Court has

little trouble concluding that Plaintiff’s is not the rare, unusually complicated case.

                                                  7
               2.      Fees Charged by IDEA Litigators

       Muskelly spills less ink on the second route by which she may show reasonableness —

namely, the prevailing rate charged by IDEA litigators in the community. She has not

“provid[ed] evidence of the fees charged, and received, by IDEA litigators” in the District.

Reed, 843 F.3d at 521. Instead, she points to several cases from this district in which IDEA

practitioners have been awarded full Matrix rates. See Motion at 9–10. This Court addressed a

nearly identical issue — with almost the same citations offered in support — in a recent case.

See Davis v. District of Columbia, 2018 WL 6181736, at *4 (Nov. 27, 2018). As in that case,

Muskelly falls short of the required showing.

       The cases Plaintiff offers are a mixed bag. Two do not reason that their plaintiffs have

demonstrated that the prevailing market rate for IDEA litigation is the Matrix rate, but rather that

they have proved IDEA litigation to be complex, a contention the Court addressed above. See

Joaquin v. District of Columbia, 210 F. Supp. 3d 64, 69 (D.D.C. 2016); Shaw v. District of

Columbia, 210 F. Supp. 3d 46, 49 (D.D.C. 2016). The other cases she offers do approve Matrix

rates for IDEA litigation based on a prevailing-market-rate showing. In each of those cases,

however, the district court had before it other evidence or additional declarations from a variety

of comparable practitioners in D.C. explaining that their rates are in line with what the attorneys

in those cases charged. See Merrick v. District of Columbia, 316 F. Supp. 3d 498, 512–13

(D.D.C. 2018) (weighing five declarations on complexity of IDEA litigation and reasonable

rate); Wimbish v. District of Columbia, 251 F. Supp. 3d 187, 192 (D.D.C. 2017) (reviewing “in

addition to affidavits from [the plaintiff’s] attorneys . . . nine affidavits from IDEA practitioners

in this jurisdiction”); Copeland v. District of Columbia, 208 F. Supp. 3d 255, 257 (D.D.C. 2016)

(describing the submission of, “in addition to detailed affidavits from [the plaintiff’s] own

                                                  8
attorneys, . . . affidavits from five IDEA practitioners, unaffiliated with this litigation, all of

which support Plaintiff's contention that IDEA litigators commonly charge and are awarded

standard Laffey rates, and that rates significantly below that measure in this case would be

insufficient”); Flood v. District of Columbia, 172 F. Supp. 3d 197, 211 (D.D.C. 2016)

(considering five additional declarations from attorneys specializing in a variety of related areas);

Eley v. District of Columbia, 201 F. Supp. 3d 150, 163 (D.D.C. 2016) (considering a survey of

132 cases). Unlike in those cases, Plaintiff offers no declarations or comparable evidence to

substantiate the prevailing market rate.

        Even if the Court were to consider these citations to be somewhat persuasive evidence of

the prevailing market rate, they cannot overcome the scores of district-court decisions here,

including this Court’s own, where attorney fees in IDEA matters have been awarded at 75% of

the USAO Matrix rate. See, e.g., Davis, 2018 WL 6181736, at *4 (Boasberg, J.); James v.

District of Columbia, 302 F. Supp. 3d 213, 221–22 (D.D.C. 2018) (“Moreover, even were the

court to credit these [several recent cases in this district in which judges have awarded the USAO

Matrix rates], they are too few in number to meet Plaintiff’s burden of establishing the prevailing

market rate,” particularly “because ‘an overwhelming number of cases’ in this district have

awarded ‘IDEA fees [that] adopt rates equivalent to seventy-five percent of Laffey Matrix

rates.’”) (quoting Cox v. District of Columbia, 264 F. Supp. 3d 131, 145 (D.D.C. 2017) (other

internal citations omitted)); Joaquin v. Friendship Public Charter School, 188 F. Supp. 3d 1, 20

(D.D.C. 2016), appeal dismissed, No. 16-7084, 2017 WL 2332623 (D.C. Cir. Feb. 22, 2017)

(“The Court therefore finds that the prevailing rates in the community for IDEA litigation are

those equivalent to seventy-five percent of . . . Matrix rates.”); Brown v. District of Columbia, 80

F. Supp. 3d 90, 98 (D.D.C. 2015); Cook v. District of Columbia, 115 F. Supp. 3d 98, 103–04

                                                    9
(D.D.C. 2015); Briggs v. District of Columbia, 73 F. Supp. 3d 59, 63–64 (D.D.C. 2014); Douglas

v. District of Columbia, 67 F. Supp. 3d 36, 42–43 (D.D.C. 2014); McAllister v. District of

Columbia, 53 F. Supp. 3d 55, 60–61 (D.D.C. 2014); Haywood v. District of Columbia, No. 12-

1722, 2013 WL 5211437, at *6 (D.D.C. Aug. 23, 2013); Davis v. District of Columbia, 864 F.

Supp. 2d 110, 119 (D.D.C. 2012); Flores v. District of Columbia, 857 F. Supp. 2d 15, 22 (D.D.C.

2012); Huntley v. District of Columbia, 860 F. Supp. 2d 53, 59–60 (D.D.C. 2012); Petway v.

District of Columbia, 858 F. Supp. 2d 70, 78 (D.D.C. 2012); Sykes v. District of Columbia, 870

F. Supp. 2d 86, 96–97 (D.D.C. 2012); Wood v. District of Columbia, 864 F. Supp. 2d 82, 92

(D.D.C. 2012). This Court, accordingly, will likewise award fees equivalent to 75% of the

Matrix rate.

       Finally, one dust-up remains, but its resolution does not alter the Court’s conclusion.

Defendant offers a declaration and associated charts documenting the invoices DCPS received in

fiscal years 2014–16 from attorneys seeking reimbursement for fees and costs. See Opp. at 15–

16. In each of those years, a majority of cases were settled, and the District indicates that those

settlements all reflected 75% of the Matrix rate. Id.; see also Opp., Exh. 1 (Declaration of Floyd

Hayes), ¶¶ 4–7. Plaintiff protests that the declaration is not credible because none of the

settlements was “reached by applying [75%] of the [M]atrix rates” but rather “range from 13% to

62% of the [M]atrix rates.” Reply at 2. The Court does not rely, however, on the Hayes

Declaration in reaching its conclusion that 75% of the Matrix rate is appropriate. Even if it were

to so rely and Plaintiff were correct about the numbers, the fact that DCPS consistently settles

fee requests at less than 75% of the Matrix rate certainly does not suggest that Plaintiff should be

entitled to more.

                                                 10
       B.      Expert Fees

       The Court, “in its discretion, may award reasonable expert witness fees as part of the

costs to a prevailing party . . . [w]ho is the parent of a child with a disability.” D.C. Code § 38-

2571.03(7)(A)(i). As with attorney fees, “[a]ny [expert] fees awarded . . . shall be based on rates

prevailing in the community.” D.C. Code § 38-2571.03(7)(B). Here, Plaintiff requests $4,762

for “the expenses paid to the Weinfeld Education Group for their work in this case.” Motion at

12; Reply at 6. Defendant objects that Muskelly has not “provide[d] any information on the

number of hours . . . Weinfeld spent on the case, the nature of the work, the hourly rate, or

information on the prevailing market rate for the kind and quality of services provided by . . .

Weinfeld.” Opp. at 17. Plaintiff rejoins that no authority requires her to “provide an invoice of

Weinfeld’s hours . . . [or] the kind of services received.” Reply at 6.

       The Court, however, cannot assess the reasonableness of Plaintiff’s expert-fee request in

the absence of any documentation regarding what services Weinfeld performed. Muskelly does

not attach any information on this point, nor does she describe their work in her briefs beyond

one general mention of the “market rate for evaluations.” Motion at 12. She need not give an

hourly breakdown of Weinfeld’s work, but the Court requires some description of their general

activities before awarding fees. While Plaintiff cannot, therefore, get expert fees on this Motion,

she may subsequently move, if she so chooses, to amend the judgment and supplement her fee

request by explaining what services Weinfeld performed. Upon receiving that explanation, the

Court may grant the expert fees sought, although it trusts the District will carefully review the

request before requiring further Court involvement.

                                                 11
       C.      Calculations

       Only the numbers remain. In calculating the fees award here, the Court: (1) takes the

number of hours reasonably expended, and (2) multiplies it by the reasonable hourly rate. The

rate, as the Court explained, is 75% of the Matrix number, which varies based on an attorney’s

years of experience.

               1.      Nigel M. Atwell

       Based on Atwell’s 21 years of practice, see Motion, Attach. 3 (Declaration of Nigel

Atwell), ¶ 2, his applicable Matrix rate is $563. See Motion, Attach. 7 (USAO Matrix).

Plaintiff’s invoice indicates that he worked 99.8 hours on this case. See Motion, Attach. 8

(Invoice).

TOTAL: 99.8 hours x ($563 x .75) = $42,140.55

               2.      Stacey Eunnae

       Based on her 5 years of practice, see Motion, Attach. 4 (Declaration of Stacey Eunnae),

¶ 2, her applicable Matrix rate is $346. See USAO Matrix. She worked 48.1 hours on the case.

See Invoice.

TOTAL: 48.1 hours x ($346 x .75) = $12,481.95

                                         *      *       *

       The grand total — adding Atwell’s $42,140.55 and Eunnae’s $12,481.95 — thus amounts

to $54,622.50. Although Defendant calculates the grant total as $56,622.50, see Opp. at 18, it is

clearly a typographical error as the underlying calculations for Atwell’s and Eunnae’s fees yield

the Court’s sum.

                                                12
III.   Conclusion

       For these reasons, the Court will grant in part and deny in part Plaintiff’s Motion for

Attorneys’ Fees. A separate Order awarding $54,622.50 will issue this day.

                                                             /s/ James E. Boasberg
                                                             JAMES E. BOASBERG
                                                             United States District Judge
Date: February 5, 2019

                                                13


12 So.3d 173 (2007)
BONNIE LYNN COSENTINO FLOMER
v.
JOHN ROBERT FLOMER, JR.
No. 2060310.
Court of Civil Appeals of Alabama.
May 11, 2007.
Decision of the Alabama Court of Civil Appeal Without Published Opinion. Dismissed for lack of prosecution.


                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 7 1999
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JACKSON MONROE MARTIN,

           Petitioner - Appellant,
 vs.                                                    No. 98-7184
                                                  (D.C. No. 97-CV-489-S)
 GARY L. GIBSON, Warden of the                          (E.D. Okla.)
 Oklahoma State Reformatory;
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

           Respondents - Appellees.

                              ORDER AND JUDGMENT *

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **

       Mr. Martin, an inmate appearing pro se, seeks to appeal from the district

court’s dismissal of his habeas petition, 28 U.S.C. § 2254, concerning an expired

1976 conviction. The magistrate judge, whose findings and recommendations

were adopted by the district court, determined that even if the conviction were

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
being used to enhance a 1991 sentence currently being served, Mr. Martin’s

claims must fail because the 1991 sentence would have been enhanced by eight

other convictions that Mr. Martin had not challenged.

      Mr. Martin’s petition is time-barred. Under the AEDPA, state prisoners

whose convictions became final before April 24, 1996, had until April 23, 1997,

to file a federal habeas petition. See 28 U.S.C. § 2244(d)(1); United States v.

Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Mr. Martin filed his petition for

habeas in August 1997, well after the deadline. His third and most recent

application for state post conviction relief, 1 rejected by the state district court as

procedurally barred and dismissed on appeal for non-compliance with rules

governing appeals, R. doc. 6 ex. B & D, does not constitute a “properly filed”

application for post-conviction relief. See Dictado v. Ducharme, 1999 WL

646953, *2 (9th Cir. Aug. 26, 1999) 2 (“properly filed” application is one

submitted in compliance with state’s procedural laws); Hoggro v. Boone, 150

F.3d 1223, 1226 n.4 (10th Cir. 1998) (untimely state appeal not “properly filed”).

Moreover, the third post-conviction application came well after the April 23, 1997

deadline.

      Even if Mr. Martin’s petition were not time barred, his claims still fail

      1
        Mr. Martin’s first and second applications for state post conviction relief
were filed in 1977 and 1984, respectively.
      2
          Contra Lovasz v. Vaughn, 134 F.3d 146, 147 (3rd Cir. 1998).

                                           -2-
because the 1991 convictions were enhanced by eight other prior convictions in

addition to the one challenged in the instant habeas petition. See R. doc. 6, Ex. E,

H & K. Because these constitute convictions of crimes after two or more prior

felonies, pursuant to Okla. Stat. Ann. tit. 21 § 51(b) (West 1998), they would

have provided the same sentencing enhancement without the 1976 conviction.

      Mr. Martin’s motion for a certificate of appealability is DENIED and the

appeal is DISMISSED.

                                       Entered for the Court

                                       Paul J. Kelly, Jr.
                                       Circuit Judge

                                        -3-


960 N.E.2d 240 (2011)
SUNDERMAN
v.
STATE.
No. 82A01-1105-CR-232.
Court of Appeals of Indiana.
December 30, 2011.
BROWN, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
MAY, J., Concurs.
CRONE, J., Concurs.