Opinion
1:19-cv-07623 (LTS) (SDA)
10-08-2022
Linda Larach-Cohen, as Parent and Natural Guardian of M.C. et al., Plaintiffs, v. David C. Banks[1] et al., Defendants.
TO THE HONORABLE LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, United States Magistrate Judge.
Plaintiffs Linda Larach-Cohen and Rolando Cohen (collectively “Plaintiffs”) filed this action, as parents of M.C., against Defendants David C. Banks, in his official capacity as Chancellor of the New York City Department of Education, New York City Department of Education (“DOE”) and New York State Education Department (“SED”) (collectively “Defendants”), asserting claims pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (the “IDEA”), 42 U.S.C. § 1983 and New York Education Law §§ 4404 and 4410. (Second Am. Compl. (“SAC”), ECF No. 29, ¶¶ 38-40.)
See footnote 1, supra.
Now before the Court is a motion by Plaintiffs, pursuant to the fee-shifting provisions of the IDEA, 20 U.S.C. § 1415(i)(3), and Rule 54(d) of the Federal Rules of Civil Procedure, for attorneys' fees and costs. (See Pls.' Mot., ECF No. 89; see also Albert Aff., ECF No. 90; Pls.' Mem., ECF No. 91.) Defendants Banks and DOE oppose the motion, asserting that (1) Plaintiffs are not entitled to attorneys' fees and costs in connection with this action because they were not prevailing parties; and (2) Plaintiffs are not entitled in this action to attorneys' fees and costs in connection with the underlying administrative proceeding, since a claim for such costs and attorneys' fees was not pled in the SAC (and noting that the SAC was filed before Plaintiffs had secured a favorable decision at the conclusion of that proceeding). (See Defs.' Opp. Mem., ECF No. 96, at 2.)
As set forth below, the SED was dismissed from this action on March 30, 2021. (See 3/30/21 Mem. Order, ECF No. 57.)
For the reasons set forth below, I respectfully recommend that Plaintiffs' motion be DENIED WITH PREJUDICE insofar as it seeks fees and costs in connection with this action and DENIED WITHOUT PREJUDICE insofar as it seeks fees and costs in connection with the underlying administrative proceeding. I further recommend that Plaintiffs' remaining pendency claims be dismissed.
Unless otherwise cited, the facts set forth herein are taken from the Court's Memorandum Opinion and Order in the related case denying Plaintiffs' motion for summary judgment and granting DOE's motion for summary judgment, Cohen v. New York City Dep't of Educ., No. 19-CV-03863 (LTS) (SDA), 2021 WL 1198565 (S.D.N.Y. Mar. 30, 2021), and the Court's Memorandum Order denying Plaintiff's motion for a preliminary injunction in this action. (See 3/30/21 Mem. Order, ECF No. 56.)
M.C. is a teenager who suffers from a brain injury and is classified as a student with a disability.
I. 2017-2018 School Year
For the 2017-2018 school year, M.C. attended a nonpublic school, the International Academy of Hope (“iHOPE”). Plaintiffs had placed M.C. at iHOPE and subsequently instituted a due process hearing at which Plaintiffs claimed that DOE had failed to offer M.C. a Free Appropriate Public Education (“FAPE”) for the 2017-2018 school year. The Impartial Hearing Officer (“IHO”) issued a decision, dated March 5, 2018, finding that the district had failed to offer M.C. a FAPE, that iHOPE was an appropriate unilateral placement for M.C. and that the equitable considerations weighed in favor of an award of the costs of M.C.'s tuition and related services at iHOPE for the 2017-2018 school year. DOE did not appeal the IHO's March 5, 2018, decision.
II. 2018-2019 School Year
For the 2018-2019 school year, the school district developed an Individualized Education Program (“IEP”) for M.C. that provided for M.C.'s placement in a public school. Rather than accept that placement, or have M.C. remain at iHOPE, Plaintiffs unilaterally moved M.C. to the International Institute for the Brain (“iBRAIN”). On July 9, 2018, Plaintiffs instituted a due process hearing, alleging that DOE did not provide M.C. with a FAPE for the 2018-2019 school year and requesting, among other things, an order requiring the DOE to fund M.C.'s placement at iBRAIN during the pendency of the due process hearing. On October 3, 2018, the IHO in that case directed DOE to fund M.C.'s placement at iBRAIN as a pendency placement on the ground that iBRAIN was substantially similar to iHOPE. DOE appealed the IHO's order. On December 31, 2018, the State Review Officer (“SRO”) issued its decision on DOE's appeal. The SRO applied the substantial similarity principle in reviewing the IHO's pendency placement decision, but reversed, on factual grounds, the IHO's determination that iBRAIN was a pendency placement.
On April 30, 2019, Plaintiffs commenced an action in this Court, Case Number 19-CV-03863, requesting an order requiring DOE to fund M.C.'s placement at iBRAIN for the 2018-2019 school year. Plaintiffs argued that DOE was required by 20 U.S.C. § 1415(j) (the IDEA's so-called “stay put” provision) to fund M.C.'s tuition at iBRAIN because its educational program was “substantially similar” to the “then-current educational placement” at iHOPE, and that the SRO had erred in finding that the two programs were not substantially similar.
By Memorandum Opinion and Order in Case Number 19-CV-03863, dated March 30, 2021, Chief Judge Swain denied Plaintiffs' motion for summary judgment and granted DOE's motion for summary judgment, holding that Plaintiffs were not entitled to pendency payment for their unilateral placement of M.C. at iBRAIN for the 2018-2019 school year. Applying recent Second Circuit precedent, the Court found that, regardless of whether the programs were substantially similar, “M.C.'s pendency placement remain[ed] at iHOPE because parents may not override the discretion of DOE to determine where pendency services are provided.” Cohen, 2021 WL 1198565, at *5 (citing Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 534 (2d Cir. 2020)).
Although Plaintiffs were unsuccessful in seeking payment on the grounds that iBRAIN was M.C.'s pendency, pursuant to § 1415(j), Plaintiffs eventually did succeed on the underlying due process complaint. On April 23, 2021, an SRO affirmed the underlying findings and conclusions involving the merits of the Plaintiffs' claims and award for the 2018-2019 school year. (See 1/7/22 Status Rpt., ECF No. 69, at 1-2.)
III. 2019-2020 School Year
For the 2019-2020 school year, M.C. remained enrolled at iBRAIN. On July 8, 2019, Plaintiffs instituted a due process hearing, alleging that DOE did not provide M.C. with a FAPE for the 2019-2020 school year and requesting, among other things, an order requiring DOE to fund M.C.'s placement at iBRAIN, as a pendency placement, during the pendency of the due process hearing pursuant to the IDEA's stay-put provision, 20 U.S.C. § 1415(j). Plaintiffs requested that the due process hearings for the 2018-2019 and 2019-2020 school years be consolidated, but that request was denied on July 23, 2019. Six IHOs subsequently recused themselves from presiding over the 2019-2020 due process hearing.
On August 14, 2019, Plaintiffs commenced the instant action against DOE and then-Chancellor, Richard Carranza. (See Compl.) As of that date, DOE had been unable to secure the services of an IHO for the hearing for the 2019-2020 school year. In the original Complaint in this action, Plaintiffs alleged that DOE failed to provide M.C. with a pendency placement in violation of the IDEA's “stay put” provision and New York law and sought equitable relief and damages. (See Compl. at PDF p. 7.) Plaintiff also filed a motion for a preliminary injunction seeking an order requiring Defendants to fund M.C.'s pendency placement at iBRAIN for the 2019-2020 school year until the substance of Plaintiffs' administrative due process claims regarding the 2019-2020 school year had been adjudicated. (Mot. Prelim. Inj., ECF No. 3.)
Plaintiffs filed an Amended Complaint on August 20, 2019, adding SED as a defendant. (Am. Compl., ECF No. 9.) After SED filed a motion to dismiss, Plaintiffs filed the SAC adding a cause of action against SED alleging that SED failed to properly oversee and supervise the appointment of an IHO and failed to enforce the statutory timelines and regulations governing IHOs and due process proceedings. (SAC ¶ 40.) On September 26, 2019, SED moved to dismiss the SAC.
On March 30, 2021, the same day that the Court denied Plaintiffs' motion for summary judgment and granted DOE's motion for summary judgment in the related action, the Court denied Plaintiffs' motion for a preliminary injunction in this action finding that Plaintiffs could not demonstrate that iBRAIN was M.C.'s pendency placement. (3/30/21 Mem. Order.) The Court held that, for the reasons stated in the related action, Plaintiffs' argument that iBRAIN was M.C.'s pendency placement based on its purported substantial similarity to the established pendency placement at iHOPE was foreclosed by the Second Circuit's decision in Ventura de Paulino. The Court also granted SED's motion to dismiss. See Larach-Cohen v. Porter, No. 19-CV-07623 (LTS) (SDA), 2021 WL 1203686, at *3 (S.D.N.Y. Mar. 30, 2021). The Court directed the parties to file a status report addressing whether an IHO has been appointed, whether the underlying due process proceeding has concluded, and whether the SAC should be dismissed as against the remaining defendants in light of the Court's Memorandum Order denying Plaintiffs' request for a preliminary injunction and the Court's decision granting Defendant DOE's motion for summary judgment in the related case. (See id.)
The Westlaw case citation for the Court's March 30, 2021 Memorandum Order in this case lists “Porter” as the lead Defendant because, by March 30, 2021, Meisha Porter had become Chancellor of the DOE. See Larach-Cohen, 2021 WL 1203686, at *3 n.1. As set forth in footnote 1, supra, Banks later became Chancellor.
On April 13, 2021, the parties filed a joint status report. (4/13/21 Status Rpt., ECF No. 58.) Plaintiffs stated that an IHO had been appointed in the underlying administrative proceeding and that the parties expected a decision within 30 days of the close of briefing. (Id.) Plaintiffs asserted that this action should not be dismissed based on the Court's prior decisions because the SAC “seeks remedies that go beyond the issuance of a preliminary injunction and such remedies remain viable.” (Id.) DOE indicated its position was that the SAC should be dismissed. (Id.) Nonetheless, Defendants did not indicate any intention to move for summary judgment. (See id.) Thereafter, the Court continued to require, and obtained, status reports regarding the administrative hearing. (See ECF Nos. 60-62.)
On October 8, 2021, IHO Martin Kehoe upheld Plaintiffs' due process complaint and found that the DOE failed to offer or provide a FAPE to M.C. for the 2019-2020 school year, that the placement of M.C. at iBRAIN was appropriate and that the balance of equities favored a full award of tuition and related services to the parents. (See 10/21/2021 Status Rpt., ECF No. 63.) In their status report filed on October 20, 2021, the parties requested that the Court hold this case in abeyance until December 1, 2021 since they were optimistic that doing so would “obviate the need for motion practice or an amendment or supplementation of the operative complaint.” (See id. at 1.)
DOE did not appeal the IHO's October 8, 2021 Findings of Fact & Decision (“FOFD”) and it became final on or about November 17, 2021. (See 12/1/2021 Status Rpt., ECF No. 65.) Thereafter, the parties continued to file status reports regarding implementation of the IHO's decision and payment by the DOE. (See id.; 12/15/21 Status Rpt., ECF No. 67.)
In a status report dated January 7, 2022, Plaintiff asserted that DOE had failed to comply with the October 8, 2021 FOFD and pay what it owed and, therefore, Plaintiffs “ha[d] no recourse other than to continue this action seeking their legal entitlement to pendency.” (1/7/22 Status Rpt. at 1.) Plaintiffs wrote that they intended to initiate a new application seeking a preliminary injunction to enforce their pendency rights based on the SRO decision, dated April 23, 2021, which found that iBRAIN was the proper placement for M.C. for the 2018-2019 school year and, therefore, served as the basis of pendency going forward. (Id. at 1-2.) Alternatively, Plaintiffs argued that they were entitled to pendency on the basis of IHO Kehoe's October 8, 2021 FOFD. (Id. at 2.) DOE responded that, if it had received the appropriate documentation to process payment it would so in the normal course, and no motion practice or judicial intervention would be needed. (Id.) If DOE had not received documentation of the amount of money it owed, DOE argued that Plaintiffs' application for a preliminary injunction would be premature. (Id.) DOE also argued that such a motion would be inappropriate since DOE did not dispute that Plaintiffs were owed funding for the 2019-20 school year. (Id.) Thereafter, the parties sought additional time to resolve the remaining issues. (See 1/18/22 Status Rpt., ECF No. 71; 2/22/2022 Status Rpt., ECF No. 73; 3/24/22 Status Rpt., ECF No. 75; 4/15/22 Status Rpt., ECF No. 77; 4/29/22 Status Rpt., ECF No. 79.)
On May 12, 2022, the parties filed a status report, indicating that, as of that date, Defendants had complied with the administrative orders awarding Plaintiffs full funding for tuition, related services and transportation costs associated with M.C.'s educational placement at the iBRAIN for the 2019-2020 school year, and that the only issue that remained outstanding was the issue of Plaintiffs' demand for attorneys' fees. (5/12/22 Status Rpt., ECF No. 81.) The parties requested additional time to seek to resolve the issue. (See id.) The Court granted the parties' request, but also set a schedule for Plaintiffs to file a motion for attorneys' fees, in the event the parties were unable to reach a resolution. (5/13/22 Memo End., ECF No. 82.)
Plaintiffs filed the instant motion for attorneys' fees on July 27, 2022. Defendants filed their opposition on September 9, 2022 and Plaintiffs filed their reply on September 23, 2022.
DISCUSSION
I. Legal Standards
The IDEA grants district courts the discretion to award “reasonable attorneys' fees” and costs to a “prevailing party.” 20 U.S.C. § 1415(i)(3)(B)(I). The IDEA fee-shifting provisions are interpreted in the same manner as other civil rights fee-shifting statutes. See A.R. ex rel. R.V. v. N.Y.C. Dep't of Educ., 407 F.3d 65, 73 (2d Cir. 2005). In determining whether to award attorneys' fees under a federal fee-shifting statute such as the IDEA, a court must undertake a two-pronged inquiry. The court “must first determine whether the party seeking the award is in fact a prevailing party.” Mr. L. v. Sloan, 449 F.3d 405, 407 (2d Cir. 2006). “If the party is a prevailing party, the court must then determine whether, under the appropriate standard, that party should be awarded attorney's fees.” Id.
II. Analysis
Plaintiffs seek attorneys' fees for both this action and for administrative proceedings involving their separate due process complaint regarding the 2019-2020 school year. (Pls.' Mem., ECF No. 91; see also Time Records, Albert Aff. Ex. 1, ECF No. 90-1.) Plaintiffs argue that they are prevailing parties because they achieved complete success on their claims to enforce M.C.'s right to a FAPE and received the ultimate relief they sought in this action, namely the cost of M.C.'s attendance, including transportation, at iBRAIN for the 2019-2020 school year. (Pls.' Mem. at 3, 5; Albert Reply Aff., ECF No. 99, ¶¶ 10-16.)
Defendants argue that Plaintiffs do not have prevailing party status in this action because they did not succeed on their claim for pendency funding. (Defs.' Opp. Mem. at 7-9.) Rather, Plaintiffs received reimbursement based on the “distinct and discrete” decision in the administrative proceeding. (Id. at 9.) Defendants do not dispute that Plaintiffs prevailed in the underlying administrative proceeding, but argue that Plaintiffs are not entitled to attorneys' fees and costs in connection with the administrative proceeding as part of this action since no such claim was included in the SAC. (Id. at 2, 6.) Defendants argue that Plaintiffs must commence a new action in order to recover those fees or, “more constructively[,]” negotiate directly with DOE. (Id. at 7.)
The Court below first considers whether Plaintiffs are entitled to fees and costs in connection with this action and next considers whether they are entitled to fees and costs in connection with the underlying proceeding.
A. Plaintiffs Are Not Prevailing Parties In This Action And Thus Are Not Entitled To Fees and Costs
“The Second Circuit has held that Congress intended the term ‘prevailing party' to be construed consistently under the IDEA and other fee-shifting statutes, under the standard set forth by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001).” G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F.Supp.2d 415, 424 (S.D.N.Y. 2012) (citing J.C. v. Reg'Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 123 (2d Cir. 2002)). “Under this standard, ‘to be a prevailing party, one must either secure a judgment on the merits or be a party to a settlement agreement that is expressly enforced by the court through a consent decree.'” Id. (citing Buckhannon, 532 U.S. at 604). “Courts within the Second Circuit have noted that the prevailing party standard has been ‘interpreted generously' by the Supreme Court and the Second Circuit, and to be granted an award of attorneys' fees, a party ‘need not prevail on all issues.'” Id. (citing B.W. ex rel. K.S. v. N.Y.C. Dep't of Educ., 716 F.Supp.2d 336, 345 (S.D.N.Y. 2010)). “Instead, the party must succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” Id. (internal quotation marks omitted).
The Court agrees with Defendants that the issue on which Plaintiffs contend they succeeded-to enforce M.C.'s right to a FAPE-was not raised in the SAC. The only two issues raised in the SAC were: (1) SED's alleged failure to, inter alia, properly oversee and supervise the appointment of an IHO, and (2) DOE's alleged failure to provide M.C a pendency placement for the 2019-2022 school year. (SAC ¶¶ 38-40.) As set forth above, the Court already dismissed the claims against SED. With respect to the pendency claims, the Court denied Plaintiffs' motion for a preliminary injunction and, for the reasons set forth below, I recommend that Plaintiffs' pendency claims be dismissed. Therefore, Plaintiffs have not succeeded on any significant issue in this litigation and are not prevailing parties in this action.
The issue of pendency and the issue of M.C.'s appropriate placement are distinct. See J.S. ex rel. Z.S. v. Carmel Cent. Sch. Dist., 501 Fed.Appx. 95, 98 (2d Cir. 2012) (“Our Court recognizes a distinction between claims for tuition reimbursement pursuant to the pendency provision and claims for tuition reimbursement pursuant to an administrative determination that a school district has failed to provide a FAPE.”); see also O'Shea v. Bd. of Educ. of Poughkeepsie City Sch. Dist., 521 F.Supp.2d 284, 290 (S.D.N.Y. 2007) (denying motion for attorneys' fees related to SRO decision on tuition reimbursement when, at time of SRO decision, plaintiffs already entitled to relief of pendency basis); A.P. v. Bd. of Educ. for City of Tullahoma, Tennessee, 160 F.Supp.3d 1024, 1032 (E.D. Tenn. 2015) (“In this case, the claim for the stay put order and the claim for permanent placement are two separate claims and should be evaluated independently for purposes of determining who is the prevailing party under the fee shifting provision of the IDEA.”). The issue of M.C.'s appropriate placement was not raised in the SAC.
Based upon recent binding precedent and the prior decisions of this Court, Plaintiffs' pendency claim should be dismissed. In three recent cases, the Second Circuit has addressed similar claims by students like M.C., who have left iHOPE for iBRAIN. See Ventura de Paulino, 959 F.3d at 519; Neske v. New York City Department of Education, 824 Fed.Appx. 81 (2d Cir. 2020); Soria v. New York City Dep't of Educ., 831 Fed.Appx. 16, 17 (2d Cir. 2020), cert. denied, 141 S.Ct. 1501 (2021). In Soria, the Court rejected a similar claim that DOE had failed to provide a student with a pendency placement. Repeating what it “made clear” in Ventura de Paulino and Neske, the Court held that the City implicitly chose iHOPE as the pendency placement when it chose not to appeal the rulings of the IHOs holding that iHOPE was an appropriate placement for the student. Soria, 831 Fed.Appx. at 18. As the District Court in Neske explained, “the pendency placement is generally not something to be offered but is instead the default placement that already exists, by virtue of an implemented IEP or another prior placement that was mutually agreed-upon.” Neske v. New York City Dep't of Educ., No. 19-CV-02933 (VEC), 2019 WL 5865245, at *2 (S.D.N.Y. Nov. 7, 2019), aff'd, 824 Fed.Appx. 81 (2d Cir. 2020). Thus, Plaintiffs cannot prevail on their claim that DOE failed to offer M.C. a pendency placement and I recommend that their remaining pendency claim be dismissed.
To the extent the SAC seeks funding on the ground that iBRAIN should be considered M.C.'s pendency placement, that claim also should be dismissed. At the time Plaintiffs filed the instant action, their claim for pendency funding was based on the argument that iBRAIN was substantially similar to iHOPE and/or was M.C. operative placement. (See Pls.' Mem. Support Mot. Prelim. Inj., ECF No. 4.) However, as the Second Circuit held in Ventura de Paulino, “[r]egardless of whether iBRAIN's educational program is substantially similar to that offered previously at iHOPE, the IDEA does not require the City to fund the Students' program at iBRAIN during the pendency of their IEP dispute; when the Parents unilaterally enrolled the Students at iBRAIN, the Parents did so at their own financial risk.” Ventura de Paulino, 959 F.3d at 525. Thus, as the Court held in denying Plaintiffs' motion for a preliminary injunction, Plaintiffs cannot demonstrate that iBRAIN is M.C. pendency placement on the grounds asserted. (See 3/30/21 Mem. Order at 5.)
The Court recognizes that, as Plaintiffs alluded to in the January 7, 2022 status report, once the April 23, 2021 IHO decision became final, Plaintiffs may have had an alternate ground to seek pendency funding on a retroactive basis, since, at that point, DOE could have been said to have implicitly chosen iBRAIN as the pendency placement. See Soria, 831 Fed.Appx. at 18; see also O'Shea, 521 F.Supp.2d at 290 (noting retroactivity of pendency determination). Nonetheless, Plaintiffs did not pursue that path. In any event, now that Plaintiffs have succeeded on the merits of their due process complaint for the 2019-2020 school year, which separately entitled them to reimbursement, and have received payment for the 2019-2020 school year (see 5/12/22 Status Rpt.), any alternate claim for funding on a pendency basis is moot. See Church of Scientology of California v. U.S., 506 U.S. 9, 12 (1992) (A case is moot when “an event occurs while a case is pending . . . that makes it impossible for the Court to ‘grant any effectual relief whatever' to a prevailing party.”); cf. Cohen, 2021 WL 2158018, at *1-2 (pendency claim not moot when plaintiffs could seek order directing payment to iBRAIN directly, rather than reimbursement). For all of these reasons, I recommend that Plaintiffs' remaining pendency claims be dismissed.
B. Plaintiffs' SAC Does Not Contain A Claim For Fees And Costs In The Underlying Administrative Proceeding
The SAC asserts the two causes of action noted above (i.e., based upon (1) SED's alleged failure to, inter alia, properly oversee and supervise the appointment of an IHO, and (2) DOE's alleged failure to provide M.C a pendency placement for the 2019-2022 school year (SAC ¶¶ 3840)), and states that “Plaintiffs are entitled to costs and attorneys' fees under 42 U.S.C. § 1988(b) and 20 U.S.C. § 1415(i), if determined to be a prevailing party.” (SAC ¶ 5.) As set forth above, one of Plaintiffs' causes of action already was dismissed and I recommend that the other be dismissed. Thus, Plaintiffs are not prevailing parties in this action and are not entitled to the attorneys' fees they seek in paragraph 5 of the SAC.
In their reply affirmation, Plaintiffs rely on the “Relief” section of the SAC, which requests, among other things, an “[a]ward to Plaintiffs [of] their costs and attorneys' fees” (see SAC at PDF p. 8), to argue that fees and costs can be awarded under the SAC for fees and costs in connection with the underlying administrative proceeding. (See Albert Reply Aff. ¶ 6.) However, under Rule 8 of the Federal Rules of Civil Procedure, “[a] pleading [like the SAC] that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
A parent who is a “prevailing party” in an IDEA administrative hearing may seek attorneys' fees as part of costs. See 20 U.S.C. § 1415(i)(3)(B). As noted above, a “prevailing party” is one who has been awarded some relief by the court. See Buckhannon, 532 U.S. at 603. While, under the IDEA, the federal court, and not a hearing officer, determines whether a party has achieved prevailing party status, see T.S. ex rel. Skrine v. D.C., No. 05-CV-00861 (HHK), 2007 WL 915227, at *4 (D.D.C. Mar. 27, 2007) (citing 20 U.S.C.A. § 1415(i)(3)(B)), a hearing officer's decision on the merits in an administrative proceeding can entitle a parent to recover fees and costs. See A.R. v. N.Y. City Dep't of Educ., 407 F.3d 65, 76 (2d Cir. 2005) (“an IHO's decision on the merits in an IDEA proceeding does constitute administrative imprimatur. . . [i]ts terms are enforceable, if not by the IHO itself, then by a court, including through an action under 42 U.S.C. § 1983” (emphasis and internal quotation marks omitted)). Thus, to state a claim for fees and costs in connection with an administrative proceeding, Plaintiffs must plead that they received a favorable decision on the merits in an administrative proceeding.
In the SAC, which is the operative pleading in this action, Plaintiffs do not plead that they were prevailing parties in an administrative proceeding, such that they were entitled to fees and costs in connection with an administrative proceeding. Indeed, the SAC was filed in September 2019, and Plaintiffs did not succeed in the administrative proceeding until October 2021. In addition, the claims pled in the SAC are different from the claims pled in the administrative proceeding. Since Plaintiffs may not seek relief in the form of attorneys' fees and costs in connection with the administrative proceedings based upon the claims pled in the SAC, I recommend that their motion, to the extent it seeks such relief, should be denied without prejudice to renewal, either following an appropriate motion to amend in this action or in a separate action.
CONCLUSION
For the foregoing reasons, I respectfully recommend that that Plaintiffs' motion be DENIED WITH PREJUDICE insofar as it seeks fees and costs in connection with this action and DENIED WITHOUT PREJUDICE insofar as it seeks fees and costs in connection with the underlying administrative proceeding. I further recommend that Plaintiffs' remaining pendency claim be dismissed.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Chief Judge Swain.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).