NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 22-1787 _____________
POCONO MOUNTAIN SCHOOL DISTRICT
v.
T. D., a minor; S. D.L., as Parent and Legal Guardian of T.D.,
Appellants _____________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 3-15-cv-00764) District Court Judge: Hon. Robert D. Mariani _____________________________________
Argued February 7, 2023
(Filed: April 18, 2023)
Before: CHAGARES, Chief Judge, SCIRICA, RENDELL, Circuit Judges. _________ O P I N I O N* _________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. John E. Freund, III Alyssa Hicks [Argued] King Spry Herman Freund & Faul One West Broad Street Suite 700 Bethlehem PA 18018
Counsel for Appellee Pocono Mountain School District
Michael J. Connolly Dennis C. McAndrews [Argued] D. Daniel Woody McAndrews Mehalick Connolly Hulse & Ryan 30 Cassatt Avenue Berwyn PA 19312
Counsel for Appellants T.D., a minor and S.D.L., as Parent and Legal Guardian of T.D.
David J. Berney Berney & Sang Suite 1000 1628 John F. Kennedy Boulevard Philadelphia PA 19103
Ellen M. Saideman Law Office of Ellen Saideman 7 Henry Drive Barrington RI 02806
Counsel for Amicus Appellants Council of Parents Attorneys and Advocates, Disability Rights Pennsylvania, Education Law Center, Peal Center, Public Interest Law Center, American Civil Liberties Union of Pennsylvania
Linda J. Randby Pennsylvania School Boards Association 400 Bent Creek Boulevard Mechanicsburg PA 17050
Counsel for Amicus Appellee Pennsylvania School Boards Association
2 RENDELL, Circuit Judge.
The Individuals with Disabilities Education Act (“IDEA”) is a federal statute
enacted to ensure that children with disabilities receive an adequate public education. A
key provision of that statute, similar to many other civil rights statutes, provides for
attorneys’ fees for a prevailing party—typically, a child and parents who have vindicated
the child’s right to certain accommodations. This helps ensure that families, even those
without the means to pay for an attorney, can find representation.
In the case at bar, T.D. achieved significant accommodations from his school
district under the IDEA after protracted litigation. As the prevailing party, he was eligible
for reasonable attorneys’ fees from the school district. The District Court awarded fees,
but drastically lower than requested. We conclude the District Court erred in several
respects, and will vacate the District Court’s order and remand so the Court can revisit
the fee award in light of our opinion.
I. Introduction
In 2011, T.D., a third-grader in the Pocono Mountain School District (“the School
District”) suffered several incidents of unwanted contact from a fellow student, on school
grounds. Afterward, he began having trouble in and outside of school. Over the next few
years, T.D.’s mother pressed for special services for T.D., but the school decided that he
was not eligible. In 2013, she then enrolled him in a private Catholic school, where he
stayed for 5 years during the pendency of the proceedings below, until high school,
3 whereupon he returned to the Pocono Mountain School District. Eventually, T.D.’s
family hired the McAndrews Law Offices (“MLO”)1, a Pennsylvania firm which
specializes in special education law, and filed a due process complaint against the School
District, seeking approximately 350 school days of compensatory education, as well as
tuition reimbursement pursuant to the IDEA, 42 U.S.C. § 1400, and Section 504 of the
Rehabilitation Act (“RA”), 29 U.S.C. § 794. Both statutes ensure that an eligible child is
provided with a free appropriate public education. On the premise that the school district
did not fulfill that duty, the parents claimed that the school district denied their child his
statutory right to a free appropriate public education. See J.M. v. Summit City Bd. of
Educ., 39 F.4th 126, 131 (3d Cir. 2022).
After an eight-day due process hearing, the hearing officer in January of 2015
concluded that T.D. was entitled to a total of 26 hours of compensatory education and
two years of tuition reimbursement pursuant to the RA, but that he did not qualify as a
student with a disability under the IDEA. Further, the hearing officer concluded that the
School District had acted with deliberate indifference and had discriminated against T.D.
in violation of the RA.
The School District filed an appeal with the District Court seeking reversal of the
hearing officer’s decision. T.D. filed a cross appeal, seeking a determination that T.D.
qualified for services under the IDEA and was eligible for more than 26 total hours of
1 Today the firm is known as McAndrews, Mehalick, Connolly, Hulse and Ryan, P.C.
4 compensatory education, among other claims. T.D. also sought, among other things,
statutory attorneys’ fees.
While the case was pending before the District Court, in November 2017 counsel
for T.D. emailed the Pennsylvania Department of Education’s Bureau of Special
Education seeking enforcement of the hearing officer’s finding that the School District
should reimburse T.D.’s parents for the private school tuition. Counsel explained that
despite numerous requests from T.D.’s family to the School District, the School District
had not paid the tuition bill for the years 2013 to 2017, as required. A few days later, the
Department of Education sent a letter informing the School District that it needed to pay
the tuition during the pendency of the litigation, under IDEA § 300.518. The School
District paid for the four years, 2013-2017. After another enforcement letter from the
Department of Education regarding 2018 tuition, the school paid its most recent tuition
bill.2
The Magistrate Judge issued a Report and Recommendation to uphold the hearing
officer’s decision in all respects. The District Court adopted it in part. While it
determined that the School District had not been deliberately indifferent under the RA, it
concluded that T.D. was disabled under the IDEA and thus entitled to tuition
reimbursement.
2 It is unclear from the record when exactly payments were made, but by the time the appeal in the underlying case had been decided, in October 2019, the School District had paid all the required tuition. 5 The School District appealed, and T.D. cross-appealed. Meanwhile, T.D. filed for
attorneys’ fees and costs. The School District filed a Motion to Stay Consideration of the
Request for Attorneys’ Fees pending resolution of their appeal, which the District Court
did not rule on for over a year, while the case was pending before our court.
In October 2019, in a brief opinion, we dispensed with the appeal on procedural
grounds, vacating in part and affirming in part. Pocono Mt. Sch. Dist. v. T.D., 790 Fed.
App’x 387 (3d Cir. 2019). As relevant here, we vacated the finding of the District Court
as it related to IDEA eligibility and tuition reimbursement as moot, because the School
District had already paid the tuition. Id. at 389-90.
Subsequently, T.D. filed a renewed motion for award of attorneys’ fees, requesting
payment for the 1,346.31 hours expended on the case, plus expenses, from the time MLO
was retained up to and including when the fee motion was filed.
As we explain more fully below, the District Court issued an opinion concluding
that all hours related to the tuition reimbursement were to be disallowed, as those claims
had been vacated on appeal; that the hours spent and the fee rate were excessive; and that
T.D. was entitled to no attorneys’ fees incurred in preparation of the various motions
related to attorneys’ fees. The District Court awarded T.D. a total of $127,564.78,
reduced from the $616,715.80 that had been requested. It also awarded $9,242.90 in
costs. T.D.’s appeal of that decision is before us now.
6 II. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 20 U.S.C. § 1415(i)(2) and 28
U.S.C. § 1331. We have jurisdiction under 29 U.S.C. § 1291, as this is an appeal of a
final order of the District Court.
We review de novo the standards and procedures applied by the District Court in determining attorneys’ fees, as it is a purely legal question. Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997). We review the findings of fact for clear error. Washington v. Philadelphia County Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996). The reasonableness of a fee award itself is reviewed for abuse of discretion, Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001), but a court abuses its discretion when its ruling is founded on an error of law or a misapplication of law to the facts, Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 154 (3d Cir. 1999).
Planned Parenthood of Cent. New Jersey v. Att’y Gen. of State of New Jersey, 297 F.3d
253, 265 (3d Cir. 2002).
III. Analysis
As a general starting point when awarding attorneys’ fees, we calculate the
“number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). That is called the lodestar. As we
have explained,
[C]ourts are to exclude from the determination of the lodestar any hours not reasonably expended. Hours subject to exclusion under Hensley include those deemed “excessive, redundant, or otherwise unnecessary.” Id. at 434, 103 S.Ct. at 1939–40.
A court’s calculation of the lodestar, however, does not end its inquiry on a fee application. A district court can adjust
7 a fee award upward or downward based upon the results obtained in a case. Id. at 434, 103 S.Ct. at 1940. In addition, an attorney’s work on unsuccessful claims not related to the claims on which the attorney succeeded is not compensable, because such work “cannot be deemed to have been expended in pursuit of the ultimate result achieved.” See id. at 434– 35, 103 S.Ct. at 1940 (internal quotation marks omitted). Moreover, as we have held, “the District Court has a positive and affirmative function in the fee fixing process, not merely a passive role” and “should reduce the hours claimed by the number of hours spent litigating claims on which the party did not succeed, that were distinct from the claims on which the party did succeed, and for which the fee petition inadequately documents the hours claimed.” Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001).
McKenna v. City of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009).
A. Claims vacated on appeal: mootness and prevailing party status.3
The IDEA provides that a district court may award attorneys’ fees in a dispute “to
a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415. The
prevailing party is one who “succeed[s] on any significant issue in litigation which
achieves some of the benefit the part[y] sought in bringing suit.” Hensley, 461 U.S. at
433; see also 20 U.S.C. § 1415(i)(3)(B). “[T]o prevail under IDEA . . . a party must
obtain a material alteration of the legal relationship of the parties that is judicially
sanctioned.” M.R. v. Ridley Sch. Dist., 868 F.3d 218, 224 (3d Cir. 2017) (cleaned up).
As noted above, we had vacated the IDEA ruling of the District Court because the
School District had fully reimbursed T.D. for the tuition by that time. Based on this, the
3 Mootness and its relationship to prevailing party status is a question of law; therefore, we review the issue de novo. Planned Parenthood, 297 F.3d at 265.
8 District Court held that “a party may not be considered a prevailing party as to claims
vacated on appeal, even if they were vacated for mootness,” and thus, T.D. was not
eligible for attorneys’ fees related to those claims. 597 F. Supp. 3d at 734-35 (cleaned
up). The Court reduced the lodestar calculation by 60% to discount all fees incurred by
T.D. in litigation of his tuition-related claims. Id. at 735.
T.D. urges that the cases relied on by the District Court do not stand for the
proposition that mootness negates prevailing party status, and that the court ignored our
opinion in M.R., 868 F.3d at 220. First, T.D. is correct that the cases cited by the District
Court, namely John T. ex rel. Paul T. v. Delaware Cnty. Intermediate Unit, 318 F.3d 545
(3d Cir. 2003), and Buckhannon Bd. And Care Home, Inc., v. W. Virginia Dep’t. of
Health & Hum. Res., 532 U.S. 598 (2001), do not pertain to prevailing party status
regarding claims vacated on appeal based on mootness.
Second, in M.R., we held that “a court-ordered award of retrospective and
compensatory relief, even if awarded under the Act’s ‘stay put’ provision, … confers
‘prevailing party’ status.” 868 F.3d at 221. We counseled to “interpret this fee provision
consistently with other federal statutes using the term ‘prevailing party.’” Id. at 224. Even
when a family does “not succeed with respect to their request for a permanent private
school placement … they d[o] prevail with respect to their procedural right to
reimbursement under the IDEA’s ‘stay put’ provision.” Id. at 225. Thus, the District
Court’s reduction of fees by 60% was error.
9 B. The District Court’s determination of a proper rate.
To assess a “reasonable fee,” the reviewing court must calculate the “lodestar
amount,” which reflects “the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. Thus, the court must
determine the “reasonable hourly rate.”
The plaintiff bears the burden of producing sufficient evidence of what constitutes a reasonable market rate for the essential character and complexity of the legal services rendered in order to make out a prima facie case. Once the plaintiff has carried this burden, defendant may contest that prima facie case only with appropriate record evidence. In the absence of such evidence, the plaintiff must be awarded attorney’s fees at her requested rate. If hourly rates are disputed, the district court must conduct a hearing to determine the reasonable market rates.
Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997) (internal citations
omitted) (emphasis added).
When calculating the lodestar, the hourly rate is generally the one prevailing in
that forum. We have adopted the “forum rate” rule, whereby the prevailing hourly rates in
the forum are applied to the case at hand, with two exceptions: first, “when the need for
the special expertise of counsel from a distant district is shown,” and, second, “when
local counsel are unwilling to handle the case.” Interfaith Cmty. Org. v. Honeywell Int’l,
Inc., 426 F.3d 694, 705 (3d Cir. 2005) (internal quotations omitted). The court may award
attorneys’ fees “based on prevailing rates in the community in which the parties’
attorneys practice” if either exception applies. Id. at 699.
10 When there are disputes over what constitutes a reasonable rate, “[t]he district
court may not dispose of such a factual question based upon a generalized sense of what
is customary or proper, but rather must rely upon the record.” Smith, 107 F.3d at 226. It is
impermissible for a court to “simply rely[] on the hourly rate set by the court for [the
attorney seeking fees] in previous cases in which he has appeared.” Id. “[A]s we have
previously stated, a district court must hold an evidentiary hearing when rates are
disputed.” Planned Parenthood, 297 F.3d at 268.
Here, rates were disputed, with both parties submitting supporting affidavits
urging, for T.D., rates for MLO lawyers between $240 and $525 per hour, and for the
School District, rates between $300 and $375 per hour. Instead of holding an evidentiary
hearing, the District Court determined that it would use the “prevailing market rates in
the community and those set forth in A.B. v. Pleasant Valley School District,”4 namely
between $300 and $375 per hour. This was error. On remand, the Court must hold an
evidentiary hearing in order to determine the appropriate prevailing rate.
C. Degree of success and denial of fee motion-related fees.5
“A party entitled to an award of attorneys’ fees is also entitled to reimbursement
for the time spent litigating its fee application.” Planned Parenthood, 297 F.3d at 268
(citing Prandini v. Nat’l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978)). A court’s calculation
4 A.B. v. Pleasant Valley Sch. Dist., 2019 WL 2715681 (M.D. Pa. June 28, 2019). 5 We review the complete denial of all fees incurred in the preparation of the fee motions for abuse of discretion. Planned Parenthood, 297 F.3d at 265; see also Clemens v. New York Cent. Mut. Fire Ins. Co., 903 F.3d 396, 399 (3d Cir. 2018).
11 of the lodestar does not end its inquiry on a fee application. A district court can adjust a
fee award upward or downward based on the results obtained in a case. McKenna v. City
of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009).
The District Court downplayed the success of T.D.’s counsel, concluding that their
“successes equated to a mere accumulation of compensatory education hours with
incidental tuition reimbursement based on findings determined by the Third Circuit to be
moot.” 597 F. Supp. 3d at 734. It also considered T.D.’s unsuccessful assertion of Title
IX, ADA and Section 504 claims to be failed claims warranting a reduction in fees. Id. at
735. But T.D. succeeded in obtaining full tuition reimbursement, and, while he did not
receive the compensatory education he had requested, this was perhaps understandable
because he was enrolled in the private school and doing well in his subjects.6
The District Court disallowed nearly two hundred hours billed by certain MLO
attorneys and paralegals, concluding that “Defendants reasonably requested 1,152.41
hours on behalf of their legal counsel.” 597 F. Supp. 3d at 738. Then, after considering
T.D.’s degree of success, the Court reduced by 100% the 171.51 hours exhausted on tasks
in support of the Motion for Attorneys’ Fees and Costs, and further reduced by 60% the
remaining 980.90 hours requested by counsel. We question each of these determinations.
Ultimately, T.D. was successful in having the Court conclude that he was disabled
under the IDEA and entitled to full tuition reimbursement. That is not merely
6 Compensatory education is intended “to redress the concrete loss that the plaintiff[s] … suffered by reason of the defendant’s wrongful conduct,” M.R., 868 F.3d at 230, and T.D.’s disability related more to his anxiety, than to his mental acuity.
12 “incidental,” as the District Court concluded. In Institutionalized Juveniles, we stated that
courts should look to “the relief actually obtained rather than [to] the success of the legal
theories.” 758 F.2d 897, 911-12 (3d Cir. 1985). We conclude that the District Court’s
assessment of T.D.’s success focused too much on what it believed T.D. had not
obtained, rather than what he did succeed in obtaining. It should re-assess this on remand.
As to its disallowance of any fee award for MLO for time spent in connection with
its request for attorneys’ fees, we find little legal support for this ruling.
T.D. urges that the District Court was wrong as a matter of law, citing our decision
in Planned Parenthood. There, we reiterated a long-held principle in our Court that “[a]
party entitled to an award of attorneys’ fees is also entitled to reimbursement for the time
spent litigating its fee application.” 297 F.3d at 268. The School District counters that the
request was outrageous, and that the District Court was faithfully applying Clemens and
Hensley. In Hensley, the Supreme Court explained that a district court may account for
the level of success attained by either identifying specific hours to be eliminated, or “it
may simply reduce the award to account for the limited success.” 461 U.S. at 436-37.
And in Clemens, we endorsed the idea that district courts “have the discretion to deny a
fee request in its entirety when the requested amount is ‘outrageously excessive’ under
the circumstances.” Clemens v. New York Cent. Mut. Fire Ins. Co., 903 F.3d 396, 402 (3d
Cir. 2018).
Given the length of time of MLO’s representation, and the extent of litigation, we
cannot accept the notion that its request was “outrageously excessive.” Pocono Mountain,
597 F. Supp. 3d at 722. And, as amici for T.D. point out, only in drastic cases that rise to
13 the level of attorney fraud or stupefying negligence and exploitation has our Court
completely denied the fees incurred in preparing a motion for attorneys’ fees. See Young
v. Smith, 905 F.3d 229, 234 (3d Cir. 2018) (100% fee reduction approved in rare case
involving fraudulent fees); Clemens, 903 F.3d at 401-02 (100% fee reduction approved
for attorney who had been admonished for being unprepared, and not keeping
contemporaneous time records among other things). A complete denial of all attorneys’
fees here was overbroad and unwarranted. Given the actions of the School District in
protracting the litigation, and the fact that MLO procured an extremely favorable
outcome for its client, while taking significant financial risk over five years of intense
litigation, the District Court’s 100% denial of fee-motion related fees was an abuse of
discretion.7
We note that this matter has lingered in the courts far too long. MLO filed its fee
request five years ago. It has been involved in this litigation for nearly 10 years, with no
payment for its services. We urge the District Court on remand to provide an order
consistent with this opinion with dispatch.
7 We acknowledge that both sides of this appeal, and amici, urge policy reasons for deciding the issues before us in their favor. We recognize the arguments on the one hand that fee awards ensure that “due process procedures, including the right to litigation if that becomes necessary, are available to all parties.” Rena C. v. Colonial Sch. Dist., 890 F.3d 404, 419 (3d Cir. 2018) (internal citation omitted). And, on the other, that courts should police awards for reasonableness and not award inflated fees when a party prevails. Both arguments have merit, but ultimately the District Court on remand will decide the issues presented based on the relevant legal precedent.
14 IV. Conclusion
In light of the foregoing, we will vacate the Court’s order and remand for the
District Court to recalculate reasonable attorney’s fees. Our intervening decision on
mootness did nothing to diminish the fact of, or the extent of, the prevailing party status
of T.D. T.D.’s success in obtaining full tuition reimbursement for five years must be
taken into account as part of the analysis of the extent of T.D.’s success. An evidentiary
hearing should be conducted in order to determine reasonable hourly rates for the
attorneys for T.D., and a complete denial of all fees related to the attorneys’ fees motions
is inappropriate.