P.S. and L.S. v. Contoocook School

• Court: District Court, D. New Hampshire
• Decided: September 30, 1996
• Docket: CV-95-154-M
• Status: Published

Opinion

P.S. and L.S. v . Contoocook School CV-95-154-M 09/30/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

P.S. and L.S.

v. Civil N o . 95-154-M Contoocook Valley School District and School Administrative Unit #1

O R D E R

Plaintiffs P.S. and L.S. seek reimbursement of attorneys'

fees, pursuant to 20 U.S.C.A. § 1415(e)(4), incurred relative to

administrative due process proceedings brought under the

Individuals with Disabilities Education Act ("IDEA") 20 U.S.C.A.

§ 1401, e t . seq.. Plaintiffs move for summary judgment for an

award of attorneys' fees. Defendants Contoocook Valley School

District and School Administrative Unit #1 also move for summary

judgment, asserting that special circumstances exist which should

preclude an award of attorneys' fees to the plaintiffs, and, in

the alternative, defendants object to the amount of fees claimed

by the plaintiffs. The cross motions for summary judgment are

resolved as follows. STANDARD OF REVIEW

Summary judgment is appropriate if the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine

issue of material fact for trial. Anderson v . Liberty Lobby,

Inc., 477 U.S. 2 4 2 , 256 (1986). If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would require trial. Celotex Corp.

v . Catrett, 477 U.S. 3 1 7 , 322 (1986). A fact is "material" if it

might affect the outcome of the litigation, and an issue is

"genuine" if the record would allow a reasonable jury to return a

verdict in favor of the nonmoving party. Anderson, 477 U.S. at

248; see also National Amusements, Inc. v . Dedham, 43 F.3d 7 3 1 ,

735 (1st C i r . ) , cert. denied, 115 S.Ct. 2247 (1995). When cross

motions for summary judgment are filed, the court must consider

each motion separately "drawing inferences against each movant in

turn." Blackie v . State of M e . , 75 F.3d 716, 721 (1st Cir. 1996)

(quotation omitted).

2 DISCUSSION

The defendants challenge the plaintiffs' right to recover

any attorneys' fees under the circumstances of this case, and

also assert, in opposition to plaintiffs' motion, that the

plaintiffs were not the prevailing party and that the amount requested is unreasonable and excessive. The plaintiffs assert

their right to attorneys' fees and costs in the amount of

$67,273.64.

The court may award attorneys' fees to the parents of a

child who is a "prevailing party" in an action or proceeding

brought under the IDEA. 20 U.S.C.A. 1415(e)(4)(B).1 Courts have

construed the statute to be consistent with the interpretation

given 42 U.S.C.A. § 1988(b) by the Supreme Court in Hensley v .

Eckerhart, 461 U.S. 424 (1983). See Combs v . School Bd., 15 F.3d

357, 360 (4th Cir. 1994); see also James v . Nashua School Dist.,

720 F. Supp. 1053, 1060 (D.N.H. 1989) (§ 1415(e)(4) "to be

interpreted consistent with fee provisions under 42 U.S.C. §1988

and Title VII of the Civil Rights Act of 1964"). Under the

1 In any action or proceedings brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a child or youth with a disability who is the prevailing party. 20 U.S.C.A. § 1415(e)(4)(B).

3 Hensley standard, a party seeking an award of attorneys' fees

must show that he or she was the prevailing party in the

underlying action and that the amount of fees requested is

reasonable. Id.

A . Defendants' Motion for Summary Judgment: Special Circumstances

The defendants urge the court to exercise its discretion to

deny attorneys' fees to the plaintiffs on grounds that the

plaintiffs' conduct during the administrative process constituted

bad faith. In unusual cases, a court may decide not to award

attorneys' fees to otherwise eligible plaintiffs if it finds

"special circumstances" such as "bad faith or obdurate conduct"

or "any unjust hardship." Burke v . Guiney, 700 F.2d 7 6 7 , 772-73

(1st Cir. 1983); accord James v . Nashua School Dist., 720 F.

Supp. 1053, 1060-61 (D.N.H. 1989). The district court's

discretion to deny attorneys' fees to prevent injustice has,

however, been interpreted narrowly. Id. at 1060; see also.

In his decision in this case, the administrative hearings

officer chastised both the plaintiffs and the defendants for

their conduct:

The record supports the parents' contention that the district predetermined the placement it would offer Bryan for 1994-95 prior to the development of the [Individualized Education Plan ("IEP")] which it

4 proposed to implement in that placement. Likewise, the record reflects that the parents predetermined that Bryan's placement for 1994-95 would be somewhere other than ConVal High School, probably as early as February 1994.

As such, the IEP development process was predestined to fail. Each party brought an agenda to the table about which neither was entirely forthright, and their differences, which were irreconcilable at the outset, at least in terms of their respective bottom lines, grew more intractable through a process designed to build consensus, but misused here for adversarial posturing. Based on the findings2 of the hearings officer, both parties were

equally responsible for the excessively litigious nature of the

administrative proceedings. Therefore, the equities do not

provide "special circumstances" for denying attorneys' fees in

this case. The defendants' motion for summary judgment is

denied.

B. The Plaintiffs' Motion for Summary Judgment: Award of Fees

The defendants contend that plaintiffs cannot meet their

burden of showing both that they prevailed in the administrative

proceeding and that their requested fees are reasonable.

2 The hearings officer made particular findings by granting and denying the parties' requested factual findings with reference to their numbers. As neither party seems to have provided the referenced findings, and those are not included with the decision, those findings cannot be used here.

5 1. Prevailing party.

The hearing officer concluded that the defendants' proposed

placement for the plaintiffs' child was "unlawfully predetermined

prior to the development and approval of an IEP for that year"

and that "[n]either the proposed IEP nor the offered placement

appropriately address Byran's school-related anxiety and

depression." With regard to the plaintiffs' placement of their

child, the hearing officer held that "Bryan does not require a

residential placement in order to access a program of special

educational services appropriate to address his unique needs, and

such a placement is overly restrictive." He also decided that

"[t]he parents' premature pursuit of an out of district placement

adversely impacted the IEP development process to an extent which

warrants reduction of their entitlement to reimbursement for the

costs of unilaterally placing Bryan at the Forman School." The

hearing officer then determined that the school district would be

responsible to pay for Bryan's non-resident tuition at the Forman

School for 1994-95, but that the district would have no further

responsibility for the costs of Bryan's education there.

Although the hearing officer did not make a finding that the

plaintiffs were the prevailing party, their partial success, at

least as to Bryan's placement and the district's obligation to

6 pay non-resident tuition, speaks for itself. See, e.g.,

Capistrano Unified Sch. Dist. v . Wartenberg, 59 F.3d 8 8 4 , 897

(9th Cir. 1995); Bernardsville Bd. of Educ. v . J.H., 42 F.3d 149,

160-61 (3d Cir. 1994); see also Nadeau v . Helgemoe, 581 F.2d 275,

278-81 (1st Cir. 1978 (explaining catalyst and merits theories of

prevailing party). Accordingly, the plaintiffs have carried

their burden of showing that, given the undisputed facts, they

were prevailing parties within the meaning of § 1415(e)(4).

2. Reasonable attorneys' fees and costs.

Pursuant to § 1415(e)(4)(B), prevailing plaintiffs are

entitled to reasonable attorneys' fees and costs. The beginning

point in calculating a fee award is generally to determine the

"lodestar" amount--the reasonable number of hours spent working

on the case multiplied by a reasonable hourly rate. See, e.g.

Phetosomphone v . Allison Reed Group, Inc., 984 F.2d 4 , 6 (1st

Cir. 1993). Then, the lodestar amount may be adjusted to reflect

other circumstances such as the significance of the prevailing

party's overall success. See Hensley, 461 U.S. at 436.

In this case, the plaintiffs assert that five attorneys

worked on their case and charged fees ranging from $75.00 to

$125.00 per hour for representation prior to the administrative

7 due process hearing, during the hearing, and in the present

action to recover fees and costs. The plaintiffs support the

reasonableness of their hourly rates with an affidavit executed

by an attorney in private practice in Vermont, who stated that he

was familiar with plaintiffs' counsel and with the rates charged

in 1994 in the area and opined that the stated rates are

reasonable for the type of work performed. See, also, Bailey v .

District of Columbia, 839 F. Supp. 8 8 8 , 890 (D.D.C. 1993) (hourly

rates of special education lawyers in the District of Columbia

ranged from $150 to $230 in 1993). Plaintiffs have not provided

the total time billed, although the billing records do include

time entries. The plaintiffs also erroneously include time

billed by their legal expert, $2800.00, as part of their

attorneys' fees, which claim is properly considered with the

other expert witness fees claimed. Plaintiffs, through the

medium of counsel's affidavit, state that total attorneys fees

and expenses actually incurred through October 1995 was

$53,854.74. Reduced by the legal expert's fee of $2800.00,

plaintiffs claim $51,054.74 in attorneys fees and expenses.

Given plaintiffs' partial success, but also taking into

consideration plaintiffs' process-frustrating tactics as

described by the hearing officer, and the apparent overlawyering

8 reflected in the papers submitted, the court determines that the

lodestar amount of $51,054.74 should be reduced by half to

$25,527.37. See, e.g., E.M. v . Millville Bd. of Education, 849

F. Supp. 3 1 2 , 317 (D.N.J. 1994).

In addition, plaintiffs request a total of $13,418.90 in

expenses billed by "expert witnesses and others in connection

with the administrative due process hearing and the instant

action." Prevailing parties are entitled to "'reasonable

expenses and fees of expert witnesses and the reasonable costs of

any test or evaluation which is found to be necessary for the

preparation of the parent or guardian's case in the action or

proceeding, as well as traditional costs incurred in the course

of litigating a case.'" Field v . Haddonfield Bd. of Educ., 769

F. Supp. 1313, 1323 (D.N.J. 1991) (emphasis added) (quoting

legislative history). Documentation of the fees and expenses

charged by the various supporting players, only some of whom

testified at the administrative due process hearing, provides

hours and rates charged, but does not sufficiently establish

either that the costs were reasonable for the services provided

or that the services were necessary to prepare the plaintiffs'

case. The legal expert failed to provide an itemized bill to

support his $2800.00 fee, thereby preventing any meaningful

9 evaluation of its reasonableness. Plaintiffs' attorney's statements in his affidavit supporting plaintiffs' motion for summary judgment are insufficient to show that those expenses were necessary to prepare the plaintiffs' case, particularly in light of the hearing officer's evaluation of the parties' performances during the IEP process and administrative part of this case. Defendants of course hotly contest the reasonableness and necessity of the plaintiffs' substantial expert expenses claim.

Finally, the plaintiffs request an additional $1505.76 in "miscellaneous costs" that they claim resulted from the litigation. They cite no authority supporting their claim for reimbursement of these undefined expenses. The request for miscellaneous costs is denied.

CONCLUSION

Plaintiffs' motion for summary judgment (document n o . 13) is

granted in part and denied in part. Plaintiffs are awarded

$25,527.37 in attorneys' fees; their request for miscellaneous

expenses is denied; and their request for expert expenses is

denied without prejudice to filing, within sixty days of the date

of this order, a new motion, properly supported with explanatory

10 documentation, for reasonable expert expenses showing which of

those expenses were necessary to the preparation of the

plaintiffs' case, and why they are reasonable in amount. Prior

to filing any new motion, however, the parties shall meet and

make good faith efforts to reach an accommodation on the

outstanding reimbursement claims so that further litigation of

this issue will be unnecessary. The defendants' motion for

summary judgment (document n o . 15) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 3 0 , 1996

cc: Louis W . Helmuth, Esq. Grant C . Rees, Esq.