Opinion
No. 01 Civ. 4015 (CBM); No. 01 Civ. 10871 (CBM); No. 01 Civ. 10872 (CBM);
November 15, 2002
Michael Hampden, Legal Services for Children, Inc., Attorney for Plaintiffs.
Martin Bowe, Michael A. Cardozo, Corporation Counsel of the City of New York, Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
These three consolidated cases (captioned with initials to preserve the anonymity and privacy of the minor parties) involve a dispute over attorney's fees. The original individual actions were brought pursuant to the Individuals with Disabilities Education Act (IDEA), which includes a provision for the award of attorney's fees to "prevailing" parties. 20 U.S.C. § 1415(i)(3)(B). The two questions in dispute are: (1) what constitutes a "prevailing party" under the terms of the IDEA; and (2) if attorney's fees are to be awarded, what is the appropriate amount?
For the sake of clarity this opinion will refer to the cases using the parents' initials.
Plaintiffs submit that they are the prevailing party in all three cases, whereas defendant New York City Board of Education (BOE or "the Board") denies that M.S. and M.L. prevailed (but concedes that A.R. did). Accordingly, plaintiffs have moved for summary judgment awarding attorney's fees in all three cases, at a rate of $350 per hour. The Board argues that fees should be awarded only in A.R.'s case, and then at a rate of between $125 and $175 per hour. For the reasons that follow, plaintiffs' motion is GRANTED.
FACTUAL BACKGROUND
The three plaintiffs in this consolidated action are parents (M.S., M.L. and A.R.) of school-age boys (I.O., J.L and R.V., respectively), each of whom has a disability which makes necessary his classification and placement in a special education program. Each child did not receive the educational placement or services his parent(s) believed were needed, and so they sought relief under the IDEA and New York State Education Law, in the form of a hearing before an Impartial Hearing Officer (IHO) from the State Education Department.
I.O. had two impartial hearings. At the first, he was granted a transfer to an appropriate class placement, one-on-one tutoring, and the right to attend private school at district expense. At the second hearing, he was granted three years "compensatory education," to be provided after he graduates or ages out of the school system. A consent order was entered. At J.L.'s impartial hearing, the district agreed to provide him individual speech and language therapy. (He was supposed to have received it during the school year, but since it was not provided to him then, it was granted for the duration of the summer.) A consent order was entered. At R.V.'s hearing, the IHO issued an order directing the district to update his evaluations, place him in private school at district expense, and provide one year of extra services to compensate for the district's failure to develop an appropriate educational program during the previous year. An order (but not a consent order) was entered and read into the record. The district did not appeal.
Legal Services for Children (LSC), a not-for-profit legal services organization which takes on clients with IDEA (and other education-related) claims, represented the parents and their children in these matters on a no-fee basis. The parents assigned their rights to recover attorney's fees to LSC, which is how the organization obtains a good portion of its funding. LSC demanded payment of attorney's fees from the Board of Education in each case, but was refused.
THE IDEA AND ATTORNEY'S FEES
The IDEA guarantees to "all children with disabilities . . . a free appropriate public education that emphasizes special education and related services to meet their unique needs." 20 U.S.C. § 1401(d). "Appropriate education" means one that is specifically tailored to the child. 20 U.S.C. § 1402(8); Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 181-82 (1982). New York has enacted statutes and regulations that track the provisions of the IDEA. See N.Y. Educ. Law §§ 4401 et seq.; 8 NYCRR §§ 200 et seq.
The IDEA provides that "[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorney's fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C § 1415(i)(3)(B). It is well-settled that attorney's fees may be awarded for representation in connection with an impartial hearing. G.M. v. New Britain Bd. of Educ., 173 F.3d 77 (2d Cir. 1999). Neither party disputes that the IDEA applies to the instant matter.
LEGAL STANDARD
Summary judgment is appropriate where the moving party demonstrates there are no genuine issues as to any material fact. See Bickerstaff v. Vassar College, 196 F.3d 435, 445 (2d Cir. 1999). Summary judgment should not be granted if a review of the record shows sufficient evidence to permit a rational juror to find in the plaintiff's favor. See id.
The summary judgment standard governs actions brought under the IDEA for an award of reasonable attorney's fees and costs. P.G. v. Brick Township Bd. of Educ., 124 F. Supp.2d 251, 258-59 (D. N.J. 2000); see also, Hensley v. Eckerhart, 461 U.S. 424, 437 (1982) (a "request for attorney's fees should not result in a second major litigation").
DISCUSSION
Plaintiffs' case is straightforward: they achieved what they wanted at their respective impartial hearings and orders were entered; therefore, they "prevailed" under the terms of the statute; therefore, they may be awarded attorney's fees. The amount they submit is reasonable, they argue, because the attorneys involved in the case are experienced lawyers (with more than twenty years experience each), and the rates are comparable to what private attorneys with similar experience charge for these types of services.
Defendant Board does not deny that attorneys fees may be granted in IDEA cases but asserts that two of the three plaintiffs here are not "prevailing" under the meaning of the statute. According to the Board, to prevail, a defendant must either win a judgment on the merits or have a court issue a consent decree. Neither happened in M.S.'s or M.L.'s cases. With respect to the amount of attorney's fees, defendant asserts that plaintiffs' request of $350 per hour is excessive.
A. Prevailing Party
On the facts, it certainly looks like plaintiffs obtained what they sought and thus prevailed." The argument is more complicated, however. InBuckhannon v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598, 604 (2001), the Supreme Court held that only "enforceable judgments on the merits and court-ordered consent decrees create the `material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees" (citing Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792-93 (1989). In so-holding, the Court rejected the "catalyst theory," under which a plaintiff may recover attorney's fees if the action he/she brought caused a change in the defendant's actions, thereby acting as a catalyst". The Court further held that a "defendant's voluntary change in conduct . . . lacks the necessary judicial imprimatur on the change," ( 532 U.S. at 605) again, emphasizing that attorney's fees cannot be awarded "without a corresponding alteration in the legal relationship of the parties." Id.
The question becomes, then, whether Buckhannon's sine qua non for an award of attorney's fees is an "alteration in the legal relationship of the parties, "or, rather, "judicial imprimatur." Id Two Illinois cases after Buckhannon suggest that the former is more important, or at least, that a recorded order from an IHO suffices as judicial imprimatur. InBrandon K. v. New Lenox School District, 2001 WL 1491499 (N.D.Ill. 2001), the court declined to dismiss a case involving an IDEA claim very similar to the one at bar. Plaintiff Brandon K. had obtained the result he wanted through an impartial hearing, and "Agreed Orders . . . were transcribed and entered." Id. at *1. Based on that fact, and interpreting all facts in plaintiff's favor (since it was a motion to dismiss), the court held that "the legal relationship between the plaintiff and the [defendant] District changed when the settlement terms were issued as an Agreed Order by an impartial hearing officer." Id. at *2. The court inJose Luis R. v. Joliet Township H.S. District 204, 2001 WL 1000734 (N.D. Ill 2001) reached the same conclusion, denying defendant's motion for judgment on the pleadings because "the legal relationship between plaintiffs and Joliet Township changed when the agreement was read into the record." Id at *2.
In this jurisdiction, however, the question of whether Buckhannon requires more than an order entered by an IHO remains open. In J.C. v. Regional School Dist. 10 Bd. of Educ., 278 F.3d 119 (2d Cir. 2002), the Second Circuit declined to award fees to parents in an IDEA case, holding that even though they achieved a favorable settlement, they had not prevailed. J.C. is distinguishable from the instant case, however, since although the parties reached a settlement, the district affirmatively prevented the settlement from being entered as an order by an IHO for fear that "transforming the results of the PPT team [the settlement] into an official decision would expose the Board to liability/or attorney's fees." Id at 122 (emphasis added). In other words, defendants in J.C. did not want to find themselves in the shoes of defendant Board in the instant action.
In what appears to be the only post-Buckhannon case on point in the Southern District, J.S. M.S. v. Ramapo Central School Dist., 165 F. Supp.2d 570 (S.D.N.Y. 2001), the court held that because the case was settled without an order from the IHO being entered, plaintiffs were not entitled to an award. Id. at 576. The logic of the decision, however, indicates that had the order been entered (as it has been in the cases before the court), the outcome would have been different. The J.S. court distinguished Jose, supra, with this passage:
In the case at bar, there was an administrative hearing. . . . However, before the proceeding concluded, the District agreed to [plaintiff's] demands, and the case was settled. Unlike Jose, the agreement was never read into the record in front of the hearing officer. The hearing officer in the case was not asked to render an opinion or affirm a settlement because his services were no longer needed. The parties entered into a private settlement agreement — and plaintiffs therefore are not entitled to "prevailing party" status.Id. In the case at bar, however, the agreement was read into the record in front of the hearing officer. The hearing officer was asked to, and did, affirm a settlement.
Defendant asserts that the agreement being read into the record is "but a mere formality," since the state regulations which establish the authority of IHO's do not explicitly refer to so-ordering private settlements. BOE Memo. in Opp., p. 4 (citing 8 NYCRR § 200.5). This argument is without merit. As plaintiffs note, "issuing consent orders incorporating settlements is . . . an essential part of adjudicative decision-making," and thus does not require explicit statutory authorization. Pl. Reply Memo., p. 2. Plaintiffs offer two treatises in support of this obvious proposition: (1) Alfred C. Aman, Jr. William T. Mayton, Admin. L. § 9.5.2 (1993) ("[s]ettlement is a dispute resolution technique that has long been a part of the administrative process"); and (2) Charles H. Koch, Jr., 2 Admin. L. and Prac. § 5.43 (2d. ed. 1997) ("A consent order is an agreement reached in an administrative proceeding between parties . . . ." (citations omitted)). Pl. Reply Memo., p. 2. Further, "[a]n administrative consent order is a final agency order which is reviewable as if it were the product of a hearing." 2 Admin. L. and Prac. § 5.43 (2d. ed. 1997) (citation omitted). In other words, if the so-ordering is a mere formality, it is one that alters the legal relationship between the parties as much as the adjudicated determination made by the IHO in AR's case (which defendant does not deny entitles him to prevailing party status under the IDEA).
For these reasons, the court finds that the plaintiffs are entitled to "prevailing party" status, in all three cases.
B. Appropriate Fees
Plaintiffs and defendants agree that the "lodestar" principle is the proper method of determining an award of fees in this case. Under the lodestar approach, the award is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate."G.M. v. New Britain Board of Education, 173 F.3d at 84 (citation omitted). A reasonable hourly rate is determined by the rates prevailing in the community for similar services by lawyers with similar skill, experience and reputation. Cruz v. Local Union No. 3 of the International Brotherhood of Electrical Workers, 34 F.3d 1148, 1159 (2d Cir. 1994). The community is typically defined as the judicial district in which the court sits. Id. at 1159.
1. Prevailing Rate
A comparison of the evidence supplied by the parties with regard to prevailing rates clearly favors the plaintiffs. Plaintiffs have presented numerous affidavits of attorneys in the same field who charge between $300 and $350 per hour. Additionally, they include the National Law Journal's annual studies of attorneys' hourly rates, demonstrating that major New York firms bill between $310 to $375 for an hour's work from an eighth year associate. Affidavit of Warren J. Sinsheimer, Ex. B. They assert that as attorneys with more than fifty-five years of experience between them, they are entitled to an award of $350 per hour. They have appended a chart of attorney's fees recently awarded by courts in the Southern District of New York at the end of their initial memorandum in support, which demonstrates that the rate they are requesting is within the normal range. See Addendum at end of Pl. Memo. in Supp.
Roger Juan Maldonado, a partner in the firm of Balber Pickard Battistoni Maldonado Van Der Tuin, PC, charges his clients $325 per hour for representation in special education cases. Maldonado Aff. ¶¶ 4, 5. John C. Gray, Project Director at South Brooklyn Legal Services since 1970, currently bills defendants at a rate of $350 per hour in special education cases. Gray Aff. ¶¶ 2, 4. Mr. Maldonado and Mr. Gray are lead attorneys in the on-going federal class action suit, Jose P. v. Mills, 96-cv-1834/79-cv-2562 (EHN), involving alleged violations to the rights, both substantive and procedural, of special education students in New York City's public school system. Maldonado Aff. ¶ 4; Gray Aff. ¶ 3. Charles G. Davis, a partner in the firm of Davis and Davis, charges the firms clients $300 per hour for representation in special education cases. Davis Aff. ¶¶ 3, 4. Charles D. Maurer, a solo private practitioner with over 30 years experience bills defendants at a rate of $350 per hour in IDEA cases. Maurer Aff. ¶¶ 2, 3.
Defendants contest the rates cited by the plaintiffs. First, they cite to a Tenth Circuit decision, Beard v. Teska, 31 F.3d 942, 957 (10th Cir. 1994) for the proposition that a calculation of attorney's fees needs to account for the lawyer's experience in the particular field in question and not just her experience overall. Plaintiffs' attorneys, they note, while experienced lawyers, are relatively new to this area of practice. This court rejected the same argument only four years ago, inMr. X v. New York State Education Department, 20 F. Supp.2d 561 (S.D.N.Y. 1998). In that case, this court held that while the attorney's experience may have been largely in other areas of practice, "his extensive background and experience litigating a variety of cases undoubtedly helped him learn about the IDEA quickly and effectively."Id. at 564. Plaintiff Mr. X's attorney's fees were awarded at a rate of $375 per hour. Id. at 365.
Plaintiffs' attorneys in this case are likewise the beneficiaries of many years of experience (thirty-five years in Mr. Hampden's case; twenty-four in Mr. Silverblatt's) in areas outside the IDEA. Furthermore, their prior experience, while not focused exclusively on the IDEA, was in related areas of law: Mr. Hampden has spent much of his career at legal services organizations (Legal Aid Society of New York City; Bronx Legal Services; Westchester/Putnam Legal Services), representing clients in administrative hearings and litigation related thereto; Mr. Silverblatt was an attorney in the Juvenile Rights Division of the Legal Aid Society for twenty years prior to joining LSC, in which capacity he served as law guardian to countless children, representing them in numerous administrative proceedings before defendant Board. Silverblatt Aff. ¶¶ 6, 8.
Hampden Aff. ¶ 16. The substantive areas covered in Mr. Hampden's representation of clients included, inter alia, school disciplinary procedures, public benefits, family law and the rights of the disabled. Id.
Next, the Board offers evidence intended to demonstrate that the prevailing rate in the community is $125 to $175 per hour. That rate, however, is based on what the Board pays plaintiffs attorneys when it agrees to pay, not what those attorneys actually charge. See Bowe Decl. Ex. B. App. E (enumeration of all fees paid by the Board to attorneys under IDEA between 1995 and 2001). As a result, the rate it suggests may be well below the amount actually charged by those attorneys. For example, the Board asserts that the attorney who brings more than half of the IDEA cases against it, Neal Rosenberg, is paid $175 per hour. Bowe Decl. Ex. B, Declaration of Everett N. Hughes, ¶¶ 14-18. Plaintiffs counter with a reply affidavit showing that Mr. Rosenberg charges his clients on a flat fee basis, and that what he collects from the Board is therefore not what he really charges; his hourly rate is impossible to discern, since he receives the same amount regardless of the number of hours he works on the case. Affidavit of Alan J. Sinsheimer, Attachment (Rosenberg Retainer Agreement).
Defendants submit Declarations from two attorneys: Vanessa Sheehan, a partner in the law firm of Guercio Guercio in Famingdale, New York; and Edward J. Sarzynski, a partner in the law firm of Hogan Sarzynski, LLP, in Johnson City, New York. Sheehan states that "[b]ased on my experience practicing in the field of education law, it is my understanding that [IDEA attorneys] . . . charge approximately $200 per hour." Sheehan Decl. ¶ 6. Sarzynski avers that "[t]o my knowledge, the hourly rates that attorneys in Broome County and adjoining counties charge for representing parents and students [in IDEA impartial hearings] are $130-$135 per hour." Sarzynski ¶ 7. Neither Farmingdale (and Sheehan's Declaration contains no clues other than the location of her firm as to which jurisdiction her sworn statement considers) nor Broome County are within the Southern District of New York. As noted supra, the prevailing rate is determined by examining the rates in the judicial district in which the court sits. Cruz, 34 F.3d at 1159. Thus, these two declarations are of little assistance in establishing the hourly rate to be awarded.
It is well settled that attorneys at not-for-profit organizations representing plaintiffs on a no-fee basis are to be awarded fees at the same rate charged by comparable private attorneys in the relevant community. Blum v. Stevenson, 465 U.S. 886, 895 (1984); Filippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985); see also 20 U.S.C. § 1415(i)(3)(C). If this court were to figure the prevailing rate based on what defendant is accustomed to paying plaintiffs attorneys, legal services organizations would be rendered second class citizens, and the Blum rule articulated above would be a dead letter. For that reason, the court is persuaded that plaintiffs' affidavits, and not defendant's, provide the correct data with which to determine the hourly rate to be awarded. The court agrees with plaintiffs that that rate is $350 per hour. 2. Reasonable Hours
These affidavits also belie defendant's contention that awards under IDEA should be at a lower rate than that prevailing in the community for other litigation work since IDEA representation at an impartial hearing is not particularly complex. BOE Memo in Opp., pp. 12-17. See also Mr. X, 20 F. Supp.2d at 564 ("The law does not support the contention that attorneys handling IDEA cases should be compensated at a lower rate than that which they normally command in other cases").
Having determined the prevailing rate, the court must decide whether the hours requested by plaintiffs are reasonable. Plaintiffs may recover for time spent preparing for and appearing at an impartial hearing, as well as for time spent in litigating the fee application. G.M., 173 F.3d at 77. The court should exclude any unnecessary or redundant time billed by plaintiff. Quarantino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1997); see also Mr. X, 20 F. Supp.2d at 564 (same). Additionally, "[v]ague or incomplete time entries justify a reduction in the amount of attorney's fees awarded." Mr. X, 20 F. Supp.2d at 564. In this case, however, plaintiffs have submitted detailed and legible time sheets which clearly enumerate the time spent on the three cases. See M.L. Affidavit of Work, Exh. I; A.R. Affidavit of Work, Exh. H; M.S. Affidavit of Work, Exh. J. Plaintiffs' attorneys have submitted reasonable travel rates of $50 per clerical travel hour, and $175 per attorney travel hour (which is one half of the normal attorney rate). Pl. Memo. in Supp., p. 26. These are the appropriate rates for time spent on IDEA cases other than on actual representation. Mr. X, 20 F. Supp.2d at 564 (citing Williams v. New York City Housing Authority, 975 F. Supp. 317, 324 (S.D.N.Y. 1997)).
The costs are submitted as follows (Pl.s' Mem. in Support at 27):
M.S.: First Impartial Hearing: $962.50 (M.S. Affidavit of Work, Exh. J); Second Impartial Hearing: $6,212.50 (M.S. Affidavit of Work, Exh. J); M.L.: Impartial Hearing: $2,370.00 (M.L. Affidavit of Work, Exh. I); A.R.: Impartial Hearing: $3,458.50 (A.R. Affidavit of Work, Exh. H); M.S./M.L./A.R., Federal Court: $5,702.50. (M.S. Affidavit of Work, ¶¶ 41, 42). These amounts include the costs of travel, clerical work, and court filings. The court has scrutinized these exhibits carefully and concludes that the billing is not redundant or excessive. The only error the court noted was in M.S. Affidavit of Work, Exh. J, for the entry dated 9/13/00. In the original forms used, Mr. Hampden recorded 1.1 hours on that date; in the rewritten form, he only recorded .1 hours on that date. The court declines to correct this error.Since the court can discern no excessive billing, it is not necessary to impose a percentage cut for the purpose of "trimming fat" from the fee application. Mr. X, 20 F. Supp.2d at 564 (quoting New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)). The Board does not contest the number of hours billed in each of the cases. Hughes Decl. ¶¶ 8-10. Accordingly, the court awards plaintiffs $18,706.00 for all three cases combined.