The opinion of the court was delivered by: Hillman, District Judge
A five-day bench trial was held in this case involving plaintiffs' claims arising under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 504(a). On March 17, 2009, the Court issued an Opinion in accordance with Federal Rule of Civil Procedure 52(a)(1) wherein the Court found in favor of defendant on defendant's alleged failure to provide B.T. with an ESY program and transportation in violation of his right to a Free Appropriate Public Education (FAPE) under the IDEA (Counts One and Two), and found in favor of plaintiffs on defendant's failure to provide seventeen days of education in September 2003 (Count Three). The Court ordered the parties to submit a remedial plan--either jointly or independently--within thirty days of the entry of the Opinion. The Court also ordered plaintiffs to submit a certification of their attorney's fees and costs associated with the prosecution of this matter. Plaintiffs submitted their proposed remedial plan and attorney's fees and costs, and defendant challenged both. A hearing was held on May 19, 2009, and despite the Court's and parties' efforts, the parties could not come to a consensus as to the proper remedial plan or whether plaintiffs' attorney's fees and costs are reasonable. The Court ordered further submissions on the remedial plan and attorney's fees to be due June 4, 2009, and replies thereto on June 11, 2009. Since that time, defendant has further challenged plaintiffs' proposed remedial plan, and plaintiff has filed an additional fee certification. Because it is clear that the parties cannot come to an agreement as to the damages plaintiffs are entitled to as a result of this Court finding in plaintiffs' favor, and it appears that discussions between the parties continue to deteriorate, in accordance with this Court's March 17, 2009 bench trial ruling, the Court issues this decision on damages for defendant's violation of the Rehabilitation Act and IDEA for the seventeen days of education B.T. lost in September 2003.*fn1
1. Compensatory Education
The Court has found that plaintiffs are entitled to compensatory education for the seventeen days of education B.T. lost in September 2003. B.T. is currently living in Shelby County, Tennessee, and the Shelby County School District has crafted a plan which it feels provides compensation for those missed school days. As a primary matter, the Court notes that the remedy to be implemented now, with B.T. in high school, is different from a remedy that would have been implemented six years ago when he missed the first month of fifth grade. The Court also notes that the Shelby County educators have no interest in this litigation, and, per the representations of plaintiffs' counsel, they were reluctant to even become entangled in this case. However, recognizing their current obligation to provide B.T. with a free appropriate education, they created a plan to provide B.T. with the equivalent of seventeen days of education that is appropriate now for his age and abilities.
The plan provides for instruction, to be held outside the normal school day and as replacement services outside IEP services determined by the IEP team at B.T.'s high school, for 119 hours (seven hours a day for seventeen days). (See Docket No. 127.) The plan proposes 114 hours of simultaneous general education and special education instruction, three hours of speech therapy, and two hours of occupational therapy. The plan also requires fifty hours for a school administrator to be present outside the normal school hours, and transportation costs. The total cost of this remedial plan, none of which goes directly to plaintiffs, is $16,000.
Defendant has challenged this plan. Among other challenges, defendant argues that paying for two teachers simultaneously, as well as the requirement of an administrator, is excessive and unnecessary. Defendant also challenges the need to account for seven hours per day. Defendant argues that because several hours of a student's day are not spent strictly receiving educational services--namely, lunch, gym, and recess--B.T. should only be awarded four hours of compensatory education per day.
The Court agrees that simultaneous instruction by a general education teacher and special education teacher appears impracticable. Accordingly, the 114 hours of educational services shall be provided individually by the general and special education teachers.*fn2 The Court does not agree, however, with defendant's other challenges. First, an administrator is necessary for practical considerations, such as opening the school building outside regular school hours, as well as to monitor the teacher providing services to B.T. Moreover, the plan only calls for 50 hours of the administrator's presence, and not for the entire 119 compensatory hours. Second, the Court does not agree that the schooling B.T. missed can be parsed out by substantive classroom instruction and non-classroom instruction. In September 2003, B.T. missed all aspects of his school day, and although lunch, gym and recess are not strictly academic areas, they are integral to a child's education. Indeed, if the Court were to agree with defendant's argument, it would support the notion that there is no value to a child in activities other than substantive classroom instruction, and therefore all school days should constitute only four hours of pure academics. The Court does not accept that view, especially since even the defendant acknowledged early on that socialization was as much a part of this child's education as academic instruction.
Accordingly, the Court finds that the remedial plan proposed by Shelby County, with the subtraction of the cost for the simultaneous teachers (reducing the value of the plan to $10,300) fairly and accurately compensates B.T. for defendant's violation of his Rehabilitation Act and IDEA rights for seventeen missed days of education in 2003. This is in accord with the requirement under the IDEA that a court "shall grant such relief as the court determines is appropriate," 20 U.S.C. § 1415(i)(2)(C)(iii), and the Rehabilitation Act, A.W. v. Jersey City Public Schools, 486 F.3d 791, 804 (3d Cir. 2007) ("The remedies for violation of Section 504 are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964. These remedies include compensatory damages, injunctive relief, and other forms of relief traditionally available in suits for breach of contract." (citations omitted)); see also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005), cited in Ferren C. v. School Dist. of Philadelphia, 595 F. Supp. 2d 566, 577-78 (E.D. Pa. 2009) (stating that compensatory education is "replacement of educational services the child should have received in the first place" and "compensatory awards should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA").
2. Attorney's fees and costs
Both the Rehabilitation Act and the IDEA provide for the award of attorney's fees and costs to the prevailing party. See 29 U.S.C. § 794a(b); 20 U.S.C. § 1415(i)(3)(B)(I). What attorney's fees and costs plaintiffs are entitled to has been the biggest debate between the parties. As set forth above, at the Court's direction in its March 17, 2009 Opinion, plaintiffs submitted their attorney's fees and costs on May 18, 2009, and defendant challenged the submission at the hearing held on May 19, 2009. Because defendant requested additional time to more-formally oppose plaintiffs' fees submission, the Court ordered further submissions to be due June 4, 2009, and replies thereto on June 11, 2009. However, plaintiffs' counsel did not submit his supplemental certification until June 26, 2009, and he did so by way of motion. Because the Court has already ruled that plaintiffs are entitled to attorney's fees and costs--only the amount is yet to be determined--the filing of the certification as a motion is procedurally improper. See L. Civ. R. 54.2 (providing that in actions where a counsel fee is permitted by statute, "an attorney seeking compensation for services or reimbursement of necessary expenses shall file with the Court an affidavit within 30 days of the entry of judgment or order, unless extended by the Court"). Further, the motion was filed on June 26, 2009, which is out-of-time per the Court's May 19, 2009 order. (See Docket No. 131.) Because defendant has not had the opportunity to fully respond to plaintiffs' supplemental fees and costs certification, it will be disregarded.*fn3 Instead, the Court will rely on plaintiffs' original fee certification, which was filed on May 18, 2009 as ordered by the Court in its March 17, 2009 Opinion. Defendant has had since May 18, 2009 to challenge that petition.
Plaintiffs are seeking $118,787.50 in legal fees ($325.00 per hour for 365.5 hours) and $10,145.25 in costs. Defendant's primary argument for why plaintiffs' attorney's fees should be reduced is that plaintiffs were only successful in proving one of their claims, losing on two claims at trial, and losing on other claims on motion practice. Defendant argues that plaintiffs should only be awarded fees that can be tied to the lone successful claim.
Defendant is correct that in certain circumstances, attorney fees should only be awarded as to "successful" claims. This case is not that situation, however. In a case where a plaintiff is deemed prevailing even though he succeeded on only some of his claims for relief, two questions are asked: "First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). To answer the first question,
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, . . . counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if ...