Important development regarding attorney fees in special education cases

In 2007, the 2nd Circuit decided Arbor Hill Concerned Citizens Neighborhood v. County of Albany. In Arbor Hill, the Court abandoned the use of the lodestar method for determination of attorney fee awards in favor of the “presumptively reasonable rate,” which was based upon a variety of factors including “the rate a paying client would be willing to pay.” Although not a special education case, its impact has been felt in the special education arena. The 2nd Circuit in Millea v. Metro-North Railroad Co. essentially abandoned Arbor Hill and reverted back to the lodestar approach. For an excellent discussion of the relevant cases and the policy issues underlying the decisions, see Attorney Fees: The Death of Arbor Hill.

WDNY reaffirms 3 year statute of limitations on Attorney fee claims

P.M. v. EVANS-BRANT CEN. SCH. DIST. (W.D.N.Y. 1-9-2012): In what might be the first case post–2007 amendments to the IDEA to closely consider this issue, the Court determined that the statute of limitations for an attorney fee claim in a special education matter is 3 years.

Attorney fees

The issue of attorney fees has been in the forefront of late. Today’s case of note is not a special education case, but is one that is of interest in the special ed lawyer’s world, as it addresses a court’s decision to award negligible fees in light of the small monetary award achieved by the plaintiff. The case, MILLEA v. METRO NORTH RAILROAD COMPANY, decided by the 2nd Circuit on August 8, 2011, was brought pursuant to the Family Medical Leave Act (FMLA), which has an attorney fee provision similar to the IDEA fee provision. There are a few things of note in the decision. The district court reduced the fee award reasoning that the claim upon which the plaintiff prevailed “had no public policy significance.” The 2nd Cir. held that that was error reasoning that “[b]y enacting a fee-shifting provision for FMLA claims, Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision.”

        The Second Circuit found that “the district court impermissibly reduced its initial fee award based on an incorrect conclusion that Millea's victory was “de minimis.” Millea, 2010 WL 126186, at *6. The $612.50 award was not de minimis; to the contrary, the award was more than 100% of the damages Millea sought on that claim. It was not a derisory or contemptuous rejection by the jury. The district court conflated a small damages award with a de minimis victory.”

        The Second Circuit found that “calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. The whole purpose of fee-shifting statutes is to generate attorneys' fees that are disproportionate to the plaintiff's recovery. Thus, the district court abused its discretion when it ignored the lodestar and calculated the attorneys' fees as a proportion of the damages awarded.”

D.C. Circuit reverses award of attorney fees to district

DISTRICT OF COLUMBIA v. IJEABUONWU, 09-7092 (D.C. Cir. 6-28-2011): Parent filed a hearing request alleging failure to timely evaluate. District fairly quickly offered a comprehensive independent evaluation. IHO dismissed the hearing request as moot. The District then sued for attorney fees. The District Court awarded fees to the school district. The Circuit Court reversed, finding that

If the District were considered a prevailing party under these circumstances, then DCPS could ignore its legal obligations until parents sue, voluntarily comply quickly, file for and receive a dismissal with prejudice for mootness, and then recover [attorneys'] fees from the parents' lawyers. Straus, 590 F.3d at 902. To allow this practice would deter lawyers from taking IDEA cases and thereby deprive parents of their most effective means of enforcing the statute.

5th Circuit: Failure to attend meeting subsequent to resolution session does not defeat parents attorney fee claim

ECTOR CTY. INDEPENDENT SCHOOL DIST. v. VB (5th Cir. 2011): Parent requested an impartial hearing. At the resolution session, the school district offered to schedule another CSE meeting to address the parent’s concerns. The district did in fact schedule such a meeting and, on the advice of counsel, the parent refused to attend. The matter went to hearing and the parent prevailed. The school district appealed. The district court held in favor of the parent, rejecting the school district’s argument that the parent had “unreasonably and needlessly protracted the litigation by refusing to attend the [CSE] meeting that would have implemented an alleged agreement made at the meetings.” The district court also awarded attorney fees to the parent. The 5th Circuit affirmed. The Court reasoned that alleged protraction of litigation is irrelevant with respect to the analysis as to whether a party has prevailed. It may, however, be relevant to whether a fee award should be reduced. Here, however, the Court rejected the district’s argument that a fee reduction was warranted. The Court refused to read into the law a requirement that the parent participate in a meeting subsequent to the resolution session.

SDNY awards attorney fees to parent who prevailed via pendency; denial of attorneys fees as denial of FAPE

J.S. and S.S. v. Carmel Central School District: Parents privately placed and filed a hearing request in which they sought reimbursement. Pendency was the private placement. Due to protracted proceedings, the District had to pay for the placement as pendency for a two year period. Parents then made a claim for attorney fees and the District filed a motion to dismiss. Prior case law (O’Shea v. Bd. of Educ., 521 F. Supp. 2d 284 (S.D.N.Y. 2007)) had rejected an attorney fee claim in similar, albeit not the same circumstances. In O’Shea, the litigation of the prior and present claims overlapped; here, the prior action had concluded. The Court found that this was sufficient to distinguish the present case. But, in any event, the Court viewed O’Shea as wrongly decided. Thus, the Court denied the District’s motion to dismiss the Parents’ claim for attorney fees. Of import, the Court noted that the denial of attorneys fees “would effectively deny plaintiffs the free appropriate education guaranteed by the IDEIA. After all, if plaintiffs must pay thousands of dollars in attorneys fees to secure appropriate public education, then that education can hardly be called free.” (Note that this is a SDNY case outsourced to a Maryland judge).

District Court awards attorney fees to prevailing school district; 9th Circuit reverses

R.P. v. PRESCOTT UNIFIED SCHOOL DISTRICT, __ F. 3d. __, #09-15651 (9th Cir. 2-4-2011): The IDEA authorizes a court to award attorney fees to a prevailing school district “against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation” and “against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” (20 USC §1415(i)(3)(B)).

In this case, the District Court saddled the parents and their lawyer with a $140,000 fee award to the district. The 9th Circuit Court of Appeals reversed and made clear that a District Court must be very careful about awarding attorney fees against a parent or the parent’s attorney for “lawyers would be improperly discouraged from taking on potentially meritorious IDEA cases if they risked being saddled with a six-figure judgment for bringing a suit where they have a plausible, though ultimately unsuccessful, argument.” Specifically, the 9th Circuit held that the parents’ claim was not “without foundation” as they had sought compensatory education, they had made plausible arguments as to why they should have prevailed, and “the fact that the arguments were not successful does not make them frivolous.” The Court also held that “the district court erred in holding that anger is an improper purpose that could justify an award of attorney's fees” noting that “anger is a legitimate reaction by parties who believe that their rights have been violated or ignored. One of the roles of the adversarial system is to peaceably resolve disputes that give rise to personal animosity by channeling that indignation into a lawful resolution in lieu of feuding or personal violence.”

Prevailing party status for IEE

AP v. NORTHERN BURLINGTON COUNTY REGIONAL BOARD OF EDUCATION, Dist. Court, D. New Jersey 2010: District Court held that Parents who obtained an order compelling a district to pay for an Independent Educational Evaluation were entitled to prevailing party status for purposes of an attorney fee claim.

SDNY slams NYC in attorney fee action

B.W. v. NEW YORK CITY DEPARTMENT OF EDUCATION (S.D.N.Y. 6-3-2010):

Parent sought reimbursement for private placement. IHO denied reimbursement, instead ordering that the CSE reconvene to develop an appropriate IEP for the child. NYC reconvened the CSE and recommended the same IEP for the upcoming school year. Parent placed privately again, sought reimbursement, submitted and a hearing request and settled the case. Parent sought attorney fees for the first hearing. NYC argued that the parent was not a prevailing party in the first hearing. The Court thought otherwise. The following is an extensive quote from the decision:

It is clear, however, that IHO Joyner's order for the CSE to
reconvene and draft a new IEP providing for an appropriate
education would have benefitted K.S. if the CSE had complied with
the order by recommending a more substantial IEP that actually
provided K.S. a FAPE. A largely unsuccessful defendant in an IDEA
case may not use its own failure to comply with an IHO order to
escape paying attorney's fees.

Defendant claims that it did not contravene IHO Joyner's order
and that her decision should not necessarily have resulted in
benefit to K.S., because it did not require that the new IEP
establish a different program (Def.'s Mem. in Opp. at 7-8). This
argument borders on the absurd. IHO Joyner found that defendant
failed to provide K.S. with a FAPE and remanded the matter to the
CSE to remedy this deficiency, an outcome clearly intended to
benefit K.S.

To suggest that the CSE could have recommended the same
deficient IEP a second time (as it inexplicably did) is logically
indefensible. In the absence of a change in the student's
condition (and the defendants cite no evidence of such a change
here), an IEP that is deficient in January is necessarily going
to continue to be deficient in December. Defendant's argument to
the contrary would effectively render the fair hearing process
meaningless.

If the initial IEP had provided K.S. with a FAPE, there would
have been no reason for IHO Joyner to have directed the CSE
to reconvene. The new IEP that the CSE issued obviously failed
to achieve what IHO Joyner ordered — an appropriate education
for K.S. — as evidenced by its failure to make any enhancements
to the deficient recommendations. Defendant cites no evidence of
any development after IHO Joyner's decision that would have made
it appropriate for defendant to adhere to the original IEP.
Rather, defendant argues that the CSE did not violate IHO
Joyner's order because the new IEP, although it contained the
same provisions as the old one, applied to the upcoming school
year, and one cannot determine "the appropriateness of a
placement for a school year that has not yet happened, because
progress (or lack thereof) cannot yet be measured" (Def.'s Mem.
in Opp. at 7; see Def.'s Mem. in Opp. at 8). By this logic,
however, all IEPs would be unchallengeable until they had been
implemented and there was empirical evidence on their effects.
IHO Joyner declined to order the requested payment of private
tuition in order to give defendant the initial opportunity to
remedy the deficient IEP, not in order to allow more time to pass
under the deficient IEP in the hope that it might become
sufficient. Defendant's argument would justify the maintenance of
all IEPs found to deny a disabled child a FAPE, relegating
students and their parents to an indefinite plight of waiting it                                                        out to see if the child improves under the deficient IEP.

Court rejects school district effort to recover attorney fees from parent

ALIEF INDEPENDENT SCHOOL DISTRICT v. C. C. (S.D.Tex. 4-7-2010): District sought to reevaluate child. Parent refused consent. District received permission from state agency to evaluate and did so. Parent filed hearing request alleging various violations and district counterclaimed alleging, inter alia, that its recommendations were proper and that the parent had filed the hearing request for “an improper purpose”. The parent subsequently sought dismissal of his own claim and the district’s claim. The district refused to withdraw its claims and the hearing went forward on the district’s claims which were essentially to prove the appropriateness of their recommendations. The district prevailed at hearing except on the issue of whether the parent’s complaint was filed for an improper purpose. The district appealed the adverse determination and sought fees in federal court. The court rejected the district’s claim for fees finding that its counterclaim did not arise under §1415 because it did not allege any violation of the IDEA.

Cert denied on reimbursement claim

HOUSTON SCH. DIST. v. V.P., 582 F.3d 576 (5th Cir. 2009), cert denied 3/22/10, Docket No. 09-841: The opinion in this case is rather torturous, but the upshot is that the 5th Circuit awarded year 2 of a reimbursement claim on a pendency theory. The 5th Circuit also found that the parent had prevailed on the year 2 claim for purposes of attorney fees. The Supreme Court rejected the District’s petition for review.

Settlement offer does not deprive the hearing officer or the Court of subject matter jurisdiction

A.O. v. EL PASO, 09-50332 (5th Cir. 3-3-2010): District offered parent all requested relief including reasonable attorney fees. Parent declined the offer wanting to go to hearing instead. The IHO dismissed the hearing request. The district court remanded the case for an impartial hearing and the 5th Circuit affirmed citing to its decision in Richard R. The 5th Circuit highlighted that the IDEA allows for limitation of attorney fees for rejection of a settlement offer when ultimately the parent attains relief no greater that that which was offered in settlement, but that the settlement offer does not deprive the IHO or the court of jurisdiction over the claim.

Denial of a FAPE is Not Required for a Parent to recover fees

Weissburg v. Lancaster School District, ________ (9th Cir. 2010): In a case decided January 14, 2010, the 9th Circuit held that a parent can recover attorney fees even when there is no denial of FAPE (see also cases cited at footnote 2). Here, the parent prevailed on the claim that her child should be classified autistic. The Court found that prevailing on an eligibility determination altered the legal relationship between the parties. Also, of interest, the Court held that the IDEA authorizes attorney fees for legal services provided by a family member who is not a parent of the child at issue.

Court awards attorney fees after parent rejected settlement offer for inadequacy of attorney fees

Y.B. v. Williamson County Bd. of Educ., Slip Copy, 2009 WL 4061311 (M.D.Tenn.,2009): Parent rejected settlement proposals that initially contained no fees and subsequently contained inadequate fees. The matter went to hearing and the state level hearing officer ordered the enforcement of the terms of settlement to which the parties had agreed at the resolution session. The parent sued for attorney fees. The district argued that the parent was not a prevailing party–an argument rejected by the Court– and that even if the parent was a prevailing party, the fees should be limited to the amounts previously offered by the district on the theory that the district had offered the ultimately obtained relief prior to hearing.

Consistent with every court that has looked at this issue in the last few years, this court found that attorney fees are a legitimate consideration for a parent when assessing the adequacy of a settlement offer.

neither the Offer of Judgment nor the June 13, 2007 settlement offer make any mention of attorneys' fees or contain any proviso indicating who is the “prevailing party.” Moreover, even if either of these proposed agreements would have, at some point, acquired the “necessary judicial imprimatur” that would allow the plaintiff to seek attorneys' fees in this proceeding, both of these documents contain language clearly stating that the proposed settlement would be the “full and final agreement of all issues raised in the due process complaint in this matter.”

This language would have presented significant challenges to the plaintiff in terms of recovering attorneys' fees in a subsequent proceeding such as this one. Therefore, the relief that the plaintiff obtained from the AJ, whose Final Order did not foreclose further litigation on the attorneys' fees issue and explicitly deemed the plaintiff the “prevailing party,” was plainly “more favorable” than the offers of settlement, which were silent on the “prevailing party” issue, would have arguably foreclosed future litigation, and certainly put the issue of attorneys' fee recovery into significant question.

Virginia district court makes substantial attorney fee award and grants interest to parents

JP ex rel. Peterson v. County School Bd. of Hanover County, Va., 641 F.Supp.2d 499 (E.D.Va. 2009): Parents lost at hearing on their private school reimbursement claim. The district court reversed in favor of the parents; the 4th Circuit Court of Appeals vacated and remanded for reconsideration finding that the district court had failed to accord sufficient deference to the hearing officer’s decision. Upon reconsideration, the district court again found for the parents. The court awarded interest and credit card transaction fees to compensate for tuition payments made on their credit cards. The court also found that the parents were substantially justified in rejecting the district’s offer of judgment due to the inadequacy of the amount of attorney fees offered. The court ultimately awarded the attorneys over $300,000 in fees. The court’s attorney fee analysis is worth reading.

Parent was justified in rejecting settlement agreement

As previously noted in this blog, certain attorneys in New York State have successfully moved to dismiss parents’ hearing requests by offering to settle without attorney fees or in one case, by offering to have the CSE revisit the issues raised by the parents (SRO 06-109, 07-122, 08-008). SRO Paul Kelly has uniformly sided with the districts on these cases. The federal courts that have addressed the issue have sided with the parent. In the latest and strongest worded of such decisions, the Western District of Texas federal court last week decided Ruben A. v. El Paso Independent School Dist., 657 F.Supp.2d 778, 2009 WL 3094859(W.D.Tex. Sep 25, 2009). The relevant section follows:

Ruben A.'s purpose in filing his administrative due process complaint was to compel EPISD to undertake actions it was already legally bound to take. EPISD had failed to evaluate R.A. more than ten months after it was informed such evaluations were necessary. Only Ruben A.'s administrative action compelled the evaluations. By failing to properly evaluate R.A., R.A.'s IEP was based on inadequate information, which meant he was not receiving a FAPE. EPISD's settlement offers never acknowledge its failure to evaluate R.A. The numerous proposed settlement agreements variously required Ruben A. to waive his right to a due process hearing; to “acquit” EPISD of any claims; to dismiss his due process complaint with prejudice; to release EPISD from paying any of Ruben A.'s attorney's fees; or to accept only $750.00 in attorney's fees.

In light of EPISD's failures, Ruben A. was justified in rejecting EPISD's efforts to deny liability or to make Ruben A. waive any right to attorney's fees under the IDEA. He was entitled to proceed to an impartial due process hearing. Furthermore, the Administrative Record reveals EPISD rejected Ruben A.'s proposed consent order, which could have otherwise ended this matter earlier, prior to the due process hearing. Likewise, EPISD rebuffed Ruben A.'s efforts to enter into mediation. When viewing these facts in isolation, just as EPISD asks the Court to view Ruben A.'s rejections of EPISD's proposed settlement offers, EPISD appears to be the one protracting this litigation. In fact, one could reasonably conclude it was only EPISD's refusal to enter into Ruben A.'s proposed consent order or into mediation, which led to the due process hearing and the instant litigation. Similarly, had EPISD refrained from filing an untimely counterclaim; asserting issues, which the Court had already decided, such as subject matter jurisdiction; filing frivolous motions, such as its motion to strike Ruben A.'s Motion for Attorney's Fees, this litigation may have ended much sooner.

A parent, whose child has suffered as a result of a school district's failings, should not be strong-armed into compromising a valid claim, for which the parent has had to seek legal counsel, because a school district purports to offer all the proposed relief listed in the administrative due process complaint. Not only does the IDEA provision setting forth the procedure for filing a due process complaint envision that there can be relief or remedies available that are not alleged in a due process complaint, courts have recognized this to be the case.FN49 Ruben A. did not protract this litigation and he was justified in rejecting a settlement offer, for which the parties could not reach an agreement.

In rejecting EPISD's proposed settlement offers and pursuing his administrative due process claim to its procedural end, Ruben A. secured a judgment, which bears judicial imprimatur. It holds EPISD accountable for its statutory violations, including finding EPISD failed to properly and adequately evaluate R.A. and EPISD denied R.A. a FAPE; orders EPISD to properly evaluate R.A.; requires EPISD to conduct an additional evaluation, which only became apparent after Ruben A. filed his administrative due process complaint, which compelled EPISD to undertake the overdue evaluation; and forces EPISD to convene an ARD Committee to consider the new evaluations and develop a new IEP for R.A. Likewise, Ruben A. did not have to waive his statutory right to attorney's fees in obtaining the warranted relief. Hence, Ruben A. received more relief than what was offered to him in EPISD's proposed settlement agreements, and therefore, IDEA'S bar for attorney's fees does not apply to him.

Mootness, effect of subsequently issued IEP, pendency, comp ed, attorney fees

Student X, by his mother v. NYC Dept. of Educ., Slip Copy, 2008 WL 4890440(E.D.N.Y. Oct 30, 2008) (NO. 07-CV-2316(NGG)RER): The parent in this case lost on the FAPE claims but the case is extremely important for a variety of reasons. First, the Court dealt what hopefully is a knockout blow to SRO Paul Kelly’s overly restrictive view of the mootness doctrine. The Court found that an IEP issued subsequent to the challenged IEP did not moot the challenge to the first IEP. The Court recognized that the challenged action was capable of repitition while evading review. Next, the Court cited to the 2nd Circuit Schutz case observing that “a new IEP for the school year following the one at issue in the litigation was a “mere proposal” that did not change the student's pendency entitlement. To hold otherwise would “undermine entirely the pendency placement provisions of the IDEA, allowing a school district to avoid altogether § 1415(j)”. Again, this is a refutation of SRO Paul Kelly who has repeatedly excused district malfeasance by denying the parent the right to due process when a district issues a new IEP.

And there’s more. Citing to the recent 2nd Cir. case P. v. Newington, the Court refuted the notion that compensatory education is limited to over age 21. This should help to reinforce that the SRO’s silly distinction between “additional services” and compensatory education should be relegated to historical artifact. The Court then found that the refusal to implement pendency was a gross violation of the IDEA for which the Court granted an hour for hour award of compensatory services. Finally, the Court awarded attorney fees to the parent for prevailing on pendency.

Are attorney fees available on settlement agreements after all?

Jankey v. Poop Deck: This is a 9th Circuit ADA case in which attorney fees were an issue. The parties had entered into a settlement agreement. The District Court denied attorney fees; the Court of Appeals reversed in a case that could have significant impact in the special education arena. Of relevance,

In a case pursued under the ADA, a court, “in its discre-
tion, may allow the prevailing party . . . a reasonable attor-
ney’s fee.” 42 U.S.C. § 12205. “[F]or a litigant to be a
‘prevailing party’ for the purpose of awarding attorneys’ fees,
he must meet two criteria: he must achieve a material alter-
ation of the legal relationship of the parties, and that alteration
must be judicially sanctioned.” P.N. v. Seattle Sch. Dist. No.
1, 474 F.3d 1165, 1172 (9th Cir. 2007) (internal quotation
marks omitted). In other words, the alteration must have a “ju-
dicial imprimatur.” Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001).

Here, the district court dismissed Plaintiff’s case pursu-
ant to a settlement agreement between the parties under which
the court retained jurisdiction to enforce the settlement.
Defendants argue that those actions by the district court do
not constitute a sufficient judicial imprimatur. That argument
is foreclosed by Skaff v. Meridien North America Beverly
Hills, LLC, 506 F.3d 832 (9th Cir. 2007) (per curiam). There,
we held that a “settlement agreement and the district court’s
order dismissing the case[, which] provided that the district
court would retain jurisdiction to enforce the agreement,” sat-
isfied the requirements of Buckhannon to render the plaintiff
a prevailing party under the ADA. Id. at 844 & n.12. The set-
tlement agreement in this case both authorized judicial
enforcement of its terms and expressly referred resolution of
the issue of attorney fees to the district court.

The IDEA by its terms makes resolution agreements enforceable in federal court. This should be sufficient to give rise to the right to fees, assuming that the terms of the agreement otherwise make the parent a prevailing party. This theory will soon be tested. Stay tuned.

Attorney fees for due process violation

The focus of this blog is generally on currently decided cases and legislative developments. Although not just decided, this case is of great import with respect to district strategies that deny parents due process rights. In Engwiller v. Pine Plains, 110 F. Supp. 2d 236(SDNY 2000), the Parent prevailed on her claim that SED did not assure the provision of the hearing decision within 45 days. The SDNY awarded fees, stating that “Plaintiff has prevailed on her central claim by securing from this Court a declaration that her procedural rights under the IDEA were violated, and an order that the State provide her with a decision on [the child’s] IEP in short order. Accordingly, Plaintiff is entitled to reimbursement from the State for attorneys' fees expended on SED administrative proceedings and this litigation.” Note that the award of fees was made without regard to the merits of the underlying proceeding; in fact, the attorney fee award was made prior to the issuance of the hearing officer’s decision.

Right to attorney fees on settled cases

The Supreme Court in the Buckhannon case significantly limited the right to attorney fees in special education cases. There is an extensive and useful discussion of Buckhannon in the recently decided 1st Circuit case, Aronov v. Chertoff. This is not a special education case, but the reach of Buckhannon is extensive. Courts are applying its restrictive view to all fee recovery statutes. The court in the Aronov case discusses in detail the difference between and requirements for a consent decree that would give rise to fees and a private settlement that would not.