1As is thoroughly explained in the court’s previous orders,

default was entered against the Department after it failed to

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF PUERTO RICO

Carlos A. Morales, et al.

v. NH Civil No. O5-ds-114-JD

PR Civil No. 04-17560

Puerto Rico Department

of Education, et al.

O R D E R

The plaintiffs, who are the parents of Veronica M. Morales

Davila, filed suit on her behalf under the Individuals with

Disabilities Education Act (“IDEA”), the Rehabilitation Act, the

Civil Rights Act of 1964, 42 U.S.C. § 2000a, the Americans with

Disabilities Act, 42 U.S.C. § 1983, and Puerto Rico law. The

plaintiffs alleged that the Puerto Rico Department of Education;

Cesar Rey, Secretary of the Department; Elsie Rivas, Supervisor

of the Department of Special Education, and Administrative Judge

Carmen Beauchamp Gonzalez violated Veronica’s right to an

appropriate educational environment. The defendants failed to

file an answer to the amended complaint with a translated copy of

the administrative record, as they had been ordered to do, and

default was entered against them on March 14, 2006. A hearing on

damages was held on August 21, 2006, by video conference.1

Case 1:05-ds-00114-JD Document 45 Filed 09/15/06 Page 1 of 17
file an answer to the amended complaint along with a certified

translation of the administrative record, as it had been ordered

to do. Although the Department eventually filed an answer in an

effort to have the default set aside, it never filed a certified

translation of the administrative record, ignoring the court’s

orders that the translated transcript be filed. In fact, the

Department challenged those orders, asserting that it was not

obligated to provide a translated transcript and claiming a lack

of resources to do so. As a result, the court concluded that the

Department failed to show good cause to set aside the default. 

See Orders issued March 14, 2006; March 17, 2006; March 31, 2006;

April 25, 2006; May 31, 2006; July 26, 2006; see also DiazFonseca, 451 F.3d at 26.

2

While this case was pending, the First Circuit Court of

Appeals decided a similar case, Diaz-Fonseca v. Commonwealth of

P.R., 451 F.3d 12 (1st Cir. 2006), which held that “[w]here the

essence of the claim is one stated under the IDEA for denial of

FAPE [free and appropriate public education], no greater remedies

than those authorized under the IDEA are made available by

recasting the claim as one brought under 42 U.S.C. § 1983, Title

II of the ADA, or section 504 of the Rehabilitation Act.” Id. at

19. The court also explained the limited remedies available in

such cases. Id. at 31. On June 19, 2006, this court notified

the parties that Diaz-Fonseca would provide the governing law as

to the remedies available here.

The plaintiffs filed a designation of damages without any

supporting information or detail to support their requests. 

Before the hearing, the court ordered the plaintiffs to provide

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3

certain information about the requested damages and ordered

counsel to explore the possibilities of settling the case based

on the information provided. The court also ordered counsel to

inform the court as to the status of their efforts to settle the

case on or before August 15, 2006. Only the plaintiffs’ counsel

complied with the court’s order, stating that the plaintiffs had

sent a written settlement demand to the defendants, before the

court issued its order, and had received no response. The

plaintiffs’ counsel represented that he had attempted to contact

counsel for the Department to discuss settlement possibilities

but was unsuccessful because the switchboard at the Puerto Rico

Department of Justice never forwarded his calls to her. The

plaintiffs’ counsel also represented that he had received no

communication from the Department’s counsel. 

Two days after the deadline, on Thursday, August 17, 2006,

the Department’s counsel moved for an additional ten days to

explore settlement possibilities, while acknowledging that the

plaintiffs’ counsel had previously sent a settlement demand and

had provided the supporting information, as had been required by

the court. The court denied the motion for additional time, due

to the lack of previous settlement effort by the Department and

the proximity of the hearing, which was scheduled for Monday

morning, August 21. At the hearing, the plaintiffs’ counsel

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4

informed the court that the Department’s counsel had told him

that morning there was no possibility of settling the case. 

Brenda L. Davila, Veronica’s mother, testified at the

hearing about the items for which the plaintiffs seek

reimbursement. The court informed the plaintiffs’ counsel that

additional supporting information was needed to support the

request for attorneys’s fees and costs. That information was

filed after the hearing.

Discussion

Veronica was diagnosed when she was seventeen months old

with global developmental delay and has a history of central

hypotonia (decreased muscle tone), language developmental

disorder, sensory integration disorder, and attention deficit

disorder. Her disabilities have affected Veronica’s social

conduct and development, her cognitive development, her attention

level, her psychomotor development, and her sensory perceptions. 

Veronica’s parents, Brenda Davila and Carlos A. Morales, sought a

private educational placement and other services, which were

initially denied by the Department of Education. The Department

later agreed to Veronica’s placement at Instituto Modelo de

Ensenanza Individualizada (“IMEI”), beginning in August of 2005.

In this suit, the plaintiffs are seeking reimbursement of

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5

$22,500 for the cost of school tuition at Centro de Intervencion

Temprana, Inc., which Veronica attended between September of 2004

and May of 2005, $630 for psychological services, $160 for speech

therapy, $2000 for services provided at IMEI, $3,536.69 for

interest paid on a loan used to pay for school tuition, $130 for

an occupational therapy evaluation, and $37,647.78 in attorneys’

fees and costs. The plaintiffs’ claims against individual

defendants were previously dismissed without prejudice, leaving

only their IDEA claim against the Puerto Rico Department of

Education. The Department objects to some, but not all, of the

reimbursements sought by the plaintiffs.

“In an IDEA-based suit like this one, monetary relief is

limited to awards of compensatory education and equitable

remedies that involve the payment of money, such as reimbursement

to parents for expenses incurred on private educational services

to which their child was later found to have been entitled.” 

Diaz-Fonseca, 451 F.3d at 31 (internal quotation marks omitted). 

When a free and appropriate public education is not available,

the responsible agency must reimburse parents for the cost of

private school tuition. Id. Educational expenses include 

services related to educational needs in addition to school

tuition. Id. Because relief under the IDEA is equitable and

discretionary, the court considers a variety of factors such as

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6

whether the amount of reimbursement sought is appropriate and

reasonable. Id.

A. School Tuition

The Department objects to the plaintiffs’ request for

reimbursement of $22,500 in tuition because it was paid to a

different school than the school alleged in the complaint. In

the amended complaint, the plaintiffs alleged that Veronica’s

parents paid tuition for her to attend IMEI, beginning in August

of 2004, after the Department denied the plaintiffs’

administrative claim for Veronica’s placement there, along with

other related services. Brenda Davila testified at the hearing,

however, that Veronica was enrolled at Centro de Intervencion

Temprana, Inc., from August of 2004 to May of 2005. The

plaintiffs’ counsel stated that the complaint mistakenly alleged

that Veronica attended IMEI during that time when she actually

was enrolled at Centro de Intervencion Temprana, Inc. The court

is satisfied with the explanation provided by the plaintiffs.

 Davila testified that Veronica attended a full-time school

program at Centro. She further testified that she and Veronica’s

father paid the cost of tuition in the amount of $2500 each month

for a total of $22,500, and that the Department has not

reimbursed them. Copies of cancelled checks made out to Centro

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7

in the amount of $2500, a letter from Centro stating the tuition

of $22,500, and other financial records support Davila’s

testimony that the plaintiffs paid $22,500 in tuition to Centro. 

The Department does not challenge either the amount of tuition

paid or the program provided to Veronica at Centro.

Based on the record presented, the tuition paid for Veronica

to attend Centro is compensable under the IDEA, and the

plaintiffs are entitled to reimbursement from the Department.

B. Psychological Services

The plaintiffs seek reimbursement of $630 for the cost of

six psychological evaluations of Veronica by Dr. Angeles J.

Acosta. The Department objects to reimbursement on the ground

that the same services were available to Veronica from the

Department. Davila testified, however, that Dr. Acosta is a

well-known psychologist in Puerto Rico with thirty years of

experience in treating children. She also testified that the

Department never offered any psychological services or provided

any assistance in finding a psychologist to evaluate Veronica. 

Davila further testified that the Department followed Dr.

Acosta’s recommendations. Although counsel for the Department

questioned Davila about whether the Department offered

psychological services for Veronica, the Department did not then

Case 1:05-ds-00114-JD Document 45 Filed 09/15/06 Page 7 of 17
8

provide and has not since provided any evidence to contradict

Davila’s testimony that no services were offered. Therefore, the

services provided by Dr. Acosta were related to Veronica’s

education and were not available from the Department.

The plaintiffs submitted evidence of the charges for Dr.

Acosta’s services and of the payments made for those services. 

Davila testified that the Department has never reimbursed her for

those costs. The cancelled checks show payments to Dr. Acosta of

$675, although the plaintiffs seek reimbursement for only $630. 

The Department does not challenge the amount the plaintiffs seek

in reimbursement. Therefore, the plaintiffs are entitled to $630

as reimbursement for psychological services provided to Veronica

by Dr. Acosta.

C. Speech Therapy

The Department does not challenge the plaintiffs’ request

for $160 as reimbursement for Veronica’s speech therapy. 

Therefore, that amount is allowed.

D. Services at IMEI

The plaintiffs request reimbursement of $2000 for services

provided to Veronica at IMEI during the summer of 2005. The

Department objected to that request because there was

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9

insufficient information about what services were provided. 

Davila testified at the hearing that Veronica attended the 

program because IMEI recommended it so that she could be

evaluated and have an opportunity to adjust to that educational

environment before she was enrolled as a full-time student. The

summer program included recreation and classes. Davila testified

and provided a receipt from IMEI to show that she paid $2000 for

the summer program and that the Department had not reimbursed her

for that cost.

Based on Davila’s testimony, the court is satisfied that the

services provided at IMEI in the summer of 2005 were related to

Veronica’s educational needs. Therefore, the Department shall

reimburse the plaintiffs for the cost of that program in the

amount of $2000.

E. Interest Paid on Loan

In order to finance the cost of Veronica’s tuition at

Centro, Davila took out a personal loan from Caribe Federal

Credit Union. She repaid the loan on April 6, 2006, which

payment included interest in the amount of $3,536.69. The

plaintiffs request reimbursement from the Department for the

interest paid on the loan. The Department does not object to

that request, and therefore, it is granted.

Case 1:05-ds-00114-JD Document 45 Filed 09/15/06 Page 9 of 17
2Although the notice from Clinica is dated July 20, 2005,

Davila testified that the evaluation was done on July 20, 2006,

and her receipt for payment is also dated July 20, 2006.

10

F. Occupational Therapy Evaluation

Veronica was evaluated at Clinica de Integracion Sensorial

by Jessica Ortiz on July 20, 2006.2 Davila testified at the

hearing that IMEI required both an occupational therapy

evaluation and a speech therapy evaluation to update Veronica’s

file, when IMEI realized that her file was not current. Davila

also testified that IMEI told her that the Department would not

pay for the evaluations because they should have been done before

Veronica was enrolled at IMEI. Davila further testified that the

evaluations were not done as soon as IMEI requested them because

she could not afford to pay for them until later. 

The Department did not object to reimbursement for the cost

of the speech therapy evaluation. The record is not clear as to

whether the Department objects to reimbursement for the

occupational therapy evaluation, and if so, on what basis. From

the questioning at the hearing, it appears that the Department is

critical of Davila for not asking the Department directly to pay

for the occupational therapy evaluation. As Davila testified,

however, once Veronica was enrolled at IMEI and the Department

was paying for her tuition, the school handled all communications

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11

with the Department on her behalf. 

Therefore, the Department shall reimburse the plaintiffs for

the cost of the occupational therapy evaluation in the amount of

$130. 

G. Attorneys’ Fees

The plaintiffs request a total of $37,647.78 for attorneys’

fees, expenses, and costs. The Department does not object to the

request and instead left this matter to the court’s discretion.

“The [IDEA] provides that a court ‘may award reasonable

attorneys’ fees as part of the costs’ to parents who prevail in

an action brought under the Act.” Arlington Cent. Sch. Dist. Bd.

of Educ. v. Murphy, 126 S. Ct. 2455, 2457 (2006) (quoting 20

U.S.C. § 1415(i)(3)(B)). That provision in the IDEA “is to be

interpreted consistently with Supreme Court law and other feeshifting statutes.” Me. Sch. Admin. Dist. No. 35 v. Mr. R., 321

F.3d 9, 14 (1st Cir. 2003). The common calculation used to

determine reasonable attorneys’ fees is the lodestar method, “in

which the number of hours reasonably spent by the attorneys on

the case is multiplied by a reasonable hourly rate.” Tamko

Roofing Prods., Inc. v. Ideal Roofing Co., Ltd., 282 F.3d 23, 34

(1st Cir. 2002); see also A.R. v. N.Y. City Dep’t of Educ., 407

F.3d 65, 79 (2d Cir. 2005). To calculate a fee award, the court

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12

begins with the attorneys’ contemporaneous billing records but

then must “winnow out excessive hours, time spent tilting at

windmills, and the like.” Gay Officers Action League v. Puerto

Rico, 247 F.3d 288, 296 (1st Cir. 2001).

 “Fees awarded under [the IDEA] 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). The plaintiffs’ attorneys are from the firm of

Delgado & Fernandez, LLP, in San Juan, Puerto Rico. Attorney

Alfredo Fernandez Martinez was the supervising attorney for the

case and billed his time at an hourly rate of $200. Attorney

Fernandez Martinez has considerable experience litigating IDEA

and disability cases. Three other attorneys worked on the case

who are or were associates in the firm and billed at an hourly

rate of $125. One paralegal worked on the case, and her time is

billed at an hourly rate of $75. 

In support of their fee request, the plaintiffs filed an

affidavit by Attorney Rafael Ojeda Colon who states that he has

experience in the courts of Puerto Rico and the United States

District Court in Puerto Rico and that the prevailing hourly

rates in federal court range from $150 to $350 depending on the

complexity of the case and the attorney’s experience. Attorney

Ojeda Colon also states that an hourly rate of $125 for an

Case 1:05-ds-00114-JD Document 45 Filed 09/15/06 Page 12 of 17
13

associate in a firm such as Delgado & Fernandez would be below a

reasonable hourly rate. The plaintiffs refer the court to a

recent decision issued in the District of Puerto Rico awarding

attorneys’ fees under 42 U.S.C. § 1988 in which the court found

hourly rates between $300 and $120 to be reasonable, depending on

the attorney who did the work and whether the time was spent in

or out of court. Reyes Canada v. Rey Hernandez, 411 F. Supp. 2d 

53, 56 (D.P.R. 2006). Based on the submissions in support of

their motion, the plaintiffs have shown that the hourly rates

charged by their attorneys for their work on this case are well

within the range of reasonable rates charged by attorneys for

similar work in Puerto Rico. 

The total number of hours the plaintiffs’ attorneys spent on

this case is 170.75, over a little more than two years, and the

amount billed for the attorneys’ services is $22,712.50. The

court has reviewed the entries in the itemized billing statement

and has not found time that should be excluded as duplicative,

excessive, non-productive, or otherwise not compensable. See,

e.g., Gay Officers Action League, 247 F.3d at 295-99; Hawkins v.

R.I. Lottery Comm’n, 238 F.3d 112, 116 (1st Cir. 2001); Lipsett

v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992). Therefore, the

time spent was reasonable.

 The Department does not challenge either the amount of time

Case 1:05-ds-00114-JD Document 45 Filed 09/15/06 Page 13 of 17
14

spent or the hourly rates charged by the plaintiffs’ attorneys. 

The plaintiffs are awarded the full amount of the attorneys’ fees

for which they submitted billing records, which is $22,712.50.

H. Expenses and Costs

The plaintiffs also seek reimbursement for costs and

expenses incurred in the course of this case. The IDEA does not

itemize what may be included in an award of costs, and therefore

28 U.S.C. § 1920 provides the governing standard for assessing

costs under the IDEA. Arlington Cent. Sch. Dist., 126 S. Ct. at

2460. Section 1920 provides:

A judge or clerk of any court of the United States may

tax as costs the following:

 (1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of 

the stenographic transcript necessarily obtained for 

use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers 

necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, 

compensation of interpreters, and salaries, fees, 

expenses, and costs of special interpretation services 

under section 1828 of this title. 

Non-attorney expert witness fees for services in an IDEA case are

not included in costs. Arlington Cent. Sch. Dist., 126 S. Ct. at

2459-60. 

In addition to costs allowed under § 1920, reasonable and

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15

necessary expenses incurred by attorneys in the course of

representing prevailing parties may be reimbursed as part of an

attorneys’ fees award. Palmigiano v. Garrahy, 707 F.2d 636, 637

(1st Cir. 1983). Expenses for computer-assisted research, such

as Westlaw, may be recovered if the firm paid a third-party

provider for the service and the firm regularly bills clients for

that expense. Attrezzi, LLC v. Maytag, 436 F.3d 32, 43 (1st Cir.

2006); Invessys, Inc. v. McGraw-Hill Cos., Ltd., 369 F.3d 16, 23

(1st Cir. 2004). Other reasonable out-of-pocket expenses that

attorneys ordinarily bill to their clients, such as for travel,

long distance telephone calls, postage, and parking, may be

included in an award. Id.; Palmigiano, 707 F.2d at 637; Radford

Trust v. First Unum Life Inc. Co. of Am., 399 F. Supp. 2d 3, 19-

20 (D. Mass. 2005). 

The plaintiffs improperly combined their attorneys’ out-ofpocket expenses for computer-assisted research, postage, long

distance telephone calls, and facsimile transmissions with items

that are properly assessed as costs. Although costs and expenses

should have been presented separately, both are allowable. In

addition, the Department has not objected to any of the costs or

expenses for which the plaintiffs seek reimbursement. Therefore,

the total amount of costs and expenses that is supported by the

itemized billing record, $3,710.28, is allowed.

Case 1:05-ds-00114-JD Document 45 Filed 09/15/06 Page 15 of 17
16

I. Total Amount of Fees, Costs, and Expenses

The plaintiffs requested a total award of $37,647.78 in

attorneys’ fees, expenses, and costs. The billing statement that

the plaintiffs filed in support of their request, however, shows

a total for fees and expenses of only $26,422.78, which is

$11,225 less than the amount they requested. They have provided

no explanation for the discrepancy. 

“In order to recover fees, attorneys must submit a full and

precise accounting of their time, including specific information

about number of hours, dates, and the nature of the work

performed.” Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st

Cir. 1993). In this case, the plaintiffs have properly supported

their request for fees, expenses, and costs to the extent shown

by the billing records they filed. To the extent they seek an

award that is greater than that amount, their request is not

properly supported and is denied.

Conclusion

For the foregoing reasons, the plaintiffs’ motion for a

default judgment (document no. 23) is granted except that the

amount of attorneys’ fees, expenses, and costs is reduced to the

amount for which the plaintiffs submitted billing records.

Case 1:05-ds-00114-JD Document 45 Filed 09/15/06 Page 16 of 17
17

The Puerto Rico Department of Education shall immediately

reimburse the plaintiffs for the following: 

$22,500 - tuition for Centro de Intervencion Temprana, Inc.

$630 - psychological services

$160 - speech therapy

$2000 - tuition for summer program at IMEI

$3,536.69 - interest on loan

$130 - occupational therapy evaluation

$26,422.78 - attorneys’ fees and costs

which constitutes a default judgment in the amount of $55,379.47.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

September 15, 2006

cc: Alfredo Fernandez-Martinez, Esquire

Kristine Burgos Santiago, Esquire

USDC-PR, Clerk

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