Leslie B. v. Winnacunnet Coop. Sch. D

Opinion

Leslie B . v . Winnacunnet Coop. Sch. D CV-97-530-SD 11/19/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE Leslie B., by her parents, John C . and Nancy M . Irish

v. Civil No. 97-530-SD

Winnacunnet Cooperative School District

O R D E R

In the above-entitled action filed under 20 U.S.C. §

1415(e)(2) of the Individuals with Disabilities Education Act

(IDEA), this court found that the Winnacunnet Cooperative School

District's individualized education program (IEP) regarding

plaintiff Leslie B . for the 1994-95 school year was

inappropriate. See Order of April 9, 1998. The court ordered

the school district to reimburse Leslie's parents for half the

costs of her private school placement. See id. In response to

both parties' requests for clarification, the court stated that

the school district would have to reimburse the parents for all

three years of Leslie's private school education, including

travel expenses. See Order of September 3, 1998.

Leslie's parents have provided further documentation of her

expenses. Specifically, the record indicates that Leslie

attended the Learning Skills Academy in Portsmouth, New

Hampshire, for 95 days of the 1994-95 school year, and Tri-City Christian Academy in Somersworth, New Hampshire, for 47 days of

that year. Leslie attended Tri-City Christian Academy for 125

days during the 1995-96 school year. During the 1996-97 school

year she attended Lighthouse Christian Academy in Rochester, New

Hampshire, for a total of 148 days.1 The school district has

already reimbursed the parents for half of Leslie's 1994-95

tuition. The cost of Leslie's tuition and books for her junior

year at Tri-City Christian Academy was $1,984.62. See May 7 ,

1998, Letter from Karen Henricks, Tri-City Christian's Accounts

Manager, attached to defendant's motion for clarification.

Leslie's parents paid the Lighthouse Christian Academy $1,277.00

for tuition and books for the 1996-97 school year. See April 2 1 ,

1998, letter from Rev. Laren E . Whaley, Administrator of

Lighthouse Christian Academy, attached to defendant's motion for

clarification. Thus, fifty percent of Leslie's tuition for the

1995-96 and 1996-97 school years is $1,630.81.

Finally, Leslie's parents have provided further information

regarding her transportation to school--Leslie's parents drove

her to school in the family car. The court finds that they are

entitled to reasonable compensation for this expense. The

question of how much specialized contractors charge to transport

1 These are the numbers in the parents' recent submission to the court, which are consistent with the documentation attached to the defendant's motion for clarification.

2 disabled children, however, is irrelevant to this question. The

court finds that the transportation reimbursement should be based

on a reasonable rate per mile. For this purpose the court will

use the rates the federal government uses to reimburse

individuals using private vehicles: from June 1994 through June

1995 the rate was 25 cents per mile; from June 1995 through June 1996 it was 30 cents per mile; and from 1996 through 1997 it was

31 cents per mile. The court further finds, based on the

American Automobile Association's "Map'n'Go" travel program, that

the distances from Hampton Falls to Portsmouth, Somersworth, and

Hampton are 13 miles, 29 miles, and 34 miles respectively. See

Beardmore v . Department of Agric., 761 F.2d 677, 679 (Fed. Cir.

1985) (taking judicial notice of American Automobile Association

map to determine distance between two locations); Barnes v .

United States, 1985 WL 5117, *3 (S.D.N.Y. 1985) (same). Leslie's transportation costs were as follows:

No. Days Rate/ Term School Attended Miles Mile Total 1994-95 Learning Skill 95 26 .25 $ 617.50 1994-95 Tri-City Christian 47 58 .25 681.50 1995-96 Tri-City Christian 125 58 .30 2,175.00 1996-97 Lighthouse 148 68 .31 3,119.84 Christian $6,593.84

3 Accordingly, fifty percent of the costs of Leslie's

transportation comes to $3,296.92.

Leslie's parents have also requested interest and costs.

IDEA does not address the issue of an appropriate prejudgment

interest rate. Title 28 of the United States Code, section 1961,

establishes the rate for post-judgment interest; however, it does

not address prejudgment interest. When a federal statute is

silent as to the prejudgment interest rate, it is appropriate to

look to the state. See Valez v . Puerto Rico Marine Management,

Inc., 957 F.2d 933, 941 (1st Cir. 1992) ("Because the [Labor

Management Relations Act] is silent as to prejudgment interest

and the granting of prejudgment interest falls under the

equitable powers of the district court, the court may look to

state law in setting the pre-judgment interest rate."). By

statute, the rate of interest on judgments in New Hampshire is

ten percent and is calculated on a simple basis rather than

compounded. See New Hampshire Revised Statutes Annotated 336:1;

Metropolitan Property & Liability Ins. Co. v . Ralph, 138 N.H.

378, 640 A.2d 763 (1994). Post-judgment interest is governed by

28 U.S.C. § 1961, which provides, in relevant part, (a) Interest shall be allowed on any money judgment in a civil case recovered in a district court . . . at a rate equal to the coupon issue yield equivalent . . . of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled

4 immediately prior to the date of the judgment. . . . . . . . (b) Interest shall be computed daily to the date of the payment . . . and shall be compounded annually.

The award of fees and costs is governed by 20 U.S.C. §

1415(e)(4)(B), which allows the court in its discretion to award fees to the parents of a handicapped child who is the

prevailing party. Because Leslie's parents appeared pro se,

they are not entitled to attorney's fees. See Crooker v .

United States Dep't of Justice, 632 F.2d 916, 920 (1st Cir.

1980). Furthermore, this is not a case in which the court

feels inclined to exercise this discretionary power in favor

of the parents. According to the statute, the court must

reduce the fees awarded when it finds that "the parent . . .

unreasonably protracted the final resolution of the

controversy. . . ." 20 U.S.C. § 1415(e)(4)(F). In this

case, the court found that Leslie's parents not only

protracted the controversy, but unnecessarily heightened

tensions and were partially responsible for Winnacunnet's

inability to provide Leslie with an appropriate education.

See Order of April 9, 1998. Accordingly, the court will deny

their request for costs.

5 Conclusion

It is hereby ordered that the Winnacunnet School District pay Leslie's parents $4,927.73 plus prejudgment and

post-judgment interest calculated as described above. The

Clerk shall enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court November 19, 1998 cc: Leslie B., pro se Barbara F. Loughman, Esq.