D. Conn.: P.J., et al. v.... | Special Education Law

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

P.J., et al., :

Plaintiffs, :

v. : CASE NO. 2:91CV180(RNC)

STATE OF CONNECTICUT, et al., :

Defendants. :

RECOMMENDED RULING ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES

Plaintiffs filed this action in 1991 against the Connecticut

State Board of Education, the State Commissioner of Education and

certain local school districts alleging violation of the

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

§ 1400 et seq. They claimed that the defendants failed to comply

with the IDEA's "least restrictive environment" requirement.1 The

case was certified as a class action.2 (Doc. #224.) In 2002, the

1 The IDEA's "central mandate is to provide disabled students with a free appropriate public education in the least restrictive environment suitable for their needs." Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008). The IDEA's "least restrictive environment" requirement mandates that: [t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. § 1412(a)(5)(A). 2 The class is defined as: "All mentally retarded school-age children in Connecticut who have been identified as needing special

court approved a settlement agreement and closed the case. (Doc.

#463.) Pending before the court is the plaintiffs' "Motion for an

Award of Costs and Attorneys' Fees." (Doc. #684.) For the reasons

that follow, the undersigned recommends3 that the motion be granted

in part as set forth below.

I. Background

This case was aimed at statewide educational reform. From its

inception, it has been unwieldy, complicated and challenging.

Although the case culminated in a settlement agreement, the

settlement process was fraught with difficulty and hobbled by

miscommunication. The resulting agreement, rather than resolving

the case, gave rise to a host of issues. The court has carefully

and methodically reviewed the voluminous record. The following

undisputed facts are necessary to place in context the instant

motion for an award of attorneys' fees.

In January 2000, the parties began a trial to the court

(Chatigny, J.). In March 2000, before the trial concluded, the

parties began settlement negotiations with the undersigned

magistrate judge. The negotiation process was bifurcated: the

initial phase addressed the merits of the case and the second phase

education and who, on or after February 20, 1991, are not educated in regular classrooms." (Doc. #463, Settlement Agreement.) 3 On July 26, 2011, United States District Judge Robert N. Chatigny referred the motion to the undersigned for a recommended ruling. (Doc. #695.)

was to focus on attorneys' fees.

Negotiations were lengthy and challenging. After several

months, the parties reached a settlement agreement on the

substantive provisions. They memorialized these terms in a draft

settlement agreement dated November 1, 2000. Under the agreement,

the defendants agreed to five main goals, including an increase in

"the percent of students with mental retardation or intellectual

disability who are placed in regular classes" and "the mean and

median percent of the school day that students with mental

retardation or intellectual disability spend with nondisabled

students." (Settlement Agreement § II.) The agreement provided

for the creation of an "Expert Advisory Panel" (EAP) at defendant's

expense "to advise the parties and the Court regarding the

implementation of th[e] Agreement." (Settlement Agreement § IX.)

The EAP's recommendations were not binding on the defendants.

(Settlement Agreement § IX.1) The parties agreed to meet annually

regarding the defendants' implementation and progress. (Settlement

Agreement § III.) By the terms of the agreement, the court's

jurisdiction expired eight years after the EAP was empaneled.4

The settlement agreement contemplated plaintiffs' involvement

in monitoring and enforcement. Plaintiffs were charged with

nominating two of the four experts constituting the EAP.

(Settlement Agreement § IX.) Plaintiffs had "a right to collect

4 The parties agree that this date is August 12, 2010.

data" relating to students who "carry the label of either mental

retardation or intellectual disability and who are eligible for

special education" and to "challenge" that list. (Settlement

Agreement § I.) The agreement also provided plaintiffs with

"access to data and files relating to class members," "baseline

data and data relating to changes from baseline" and defendants'

reports regarding their progress as to the five goals for "purposes

relating to the enforcement and implementation of th[e] Agreement."

(Settlement Agreement § I.3, II, III.) Plaintiffs were entitled to

"existing data to enable [them] to assess compliance" and to file

motions alleging that the defendants were in substantial non-

compliance of the agreement. (Settlement Agreement § III.)

Having reached agreement on settlement of the merits of the

case, the parties then turned to the issue of attorneys' fees. At

the undersigned's behest, the plaintiffs provided the defendants

with a statement of attorneys' fees and costs incurred to that

point, that is, from 1991 until November 28, 2000. The plaintiffs

demanded payment of $972,115.91. After more negotiations,

plaintiffs agreed to accept $675,000.

On May 18, 2001, the parties met with the undersigned to

discuss some language in the agreement unrelated to fees. The

parties agreed to certain changes which they handwrote into the

November 1, 2000 settlement agreement. Defense counsel agreed to

incorporate the changes into the agreement and provide counsel and

the undersigned with copies. At that point, the draft agreement

was silent as to attorneys' fees.

On June 6, 2001, the plaintiffs learned that defense counsel

had submitted the settlement agreement to the Connecticut General

Assembly and that the Connecticut General Assembly had approved the

settlement agreement. The settlement agreement that the

legislature approved, however, included a new provision that was

not in the November 1, 2000 agreement. Unbeknownst to the

plaintiffs and the court, defense counsel had unilaterally drafted

and inserted a provision - called Section X - into the settlement

agreement. Section X is entitled "Payment" and states:

The Defendants shall make to the Plaintiffs in P.J., et al. v. State of Connecticut Board of Education, et al., a one-time payment of $675,000 in attorneys' fees and costs, payable to Attorney David Shaw, attorney for the Plaintiffs within ninety (90) days of the effective date of the approval of this agreement.

The plaintiffs were shocked at the inclusion of Section X.

They protested to the court that they had not agreed to Section X.

Plaintiffs pointed out that the $675,000 only reflected fees and

costs incurred to November 28, 2000 but that the language in

Section X suggested that the "675,000 is the only payment for costs

and attorneys' fees that will ever be made under" the agreement.

(Doc. #690, Ex. L.) Plaintiffs' counsel contended that a waiver of

fees for future work had never been discussed. (Id.) Defendants

did not dispute that there had been no discussions as to future

attorneys' fees. (Doc. #690, Ex. N.) They maintained that the

inclusion of Section X was proper because "all that remained to be

done" was "to insert the provision calling for the payment of the

$675,000 in attorneys' fees and costs, which was to be a single

payment." (Doc. #690, Ex. N.)

The parties were at an impasse and the settlement was at risk

of unraveling. They attempted to resolve the dispute by exchanging

letters containing proposed language to clarify Section X. When

these negotiations failed, the plaintiffs moved to enforce the

settlement agreement without Section X. (Doc. #431.)

In an attempt to resolve their dispute and save the

settlement, counsel had a settlement conference with the

undersigned in February 2002. "[P]ending ... discussions with

legislative leadership," the parties agreed to certain language

construing Section X. (Doc. #690, Ex. S.) The defendants then

sought and obtained approval for the proposed additional language.

In a letter dated March 1, 2002, the defendants notified the

plaintiffs and the undersigned that they had received the necessary

authorization. The parties' agreement on Section X is memorialized

in a letter (the "side letter") from defense counsel to plaintiffs'

counsel. The letter states:

[T]he defendants do not interpret Section X of the draft agreement to preclude the Court from awarding reasonable attorneys' fees and costs to the plaintiffs upon a finding by the Court that the defendants had failed to substantially comply with the consent decree. The parties agree to be bound by controlling law on the issue of attorneys' fees and costs.

(Doc. #690, Ex. T, Ltr dated 3/1/02.) With the side letter in

place, the parties finally executed the settlement agreement on

March 28, 2002. (Doc. #690 at 14.) After a fairness hearing on

May 22, 2002, the court approved the settlement agreement. (Doc.

##462-63.) Defendants paid plaintiffs' counsel $675,000.

In April 2009, the plaintiffs filed a motion alleging that the

defendants had failed to make adequate progress toward achieving

the agreement's goals and were in "substantial noncompliance" with

the settlement agreement.5 (Doc. #580.) After an evidentiary

hearing in June 2010, the court (Chatigny, J.) denied the

plaintiffs' motion. (Doc. ##686, 706.) In July 2010, the

plaintiffs filed the instant motion seeking attorneys' fees of

$906,010.85 and costs of $197,181.15.6 (Doc. #684.)

II. Discussion

The plaintiffs argue that they are prevailing parties as a

result of the settlement agreement and, as such, are entitled to an

award of attorneys' fees and costs pursuant to 20 U.S.C.

§ 1415(i)(3)(B), 29 U.S.C. § 794 and 42 U.S.C. § 1988. They seek

fees and costs from November 29, 2000 through the June 2010

5 The plaintiffs' previous "Motion for Orders to Remedy Substantial Non-Compliance with Settlement Agreement" (doc. #549) was denied without prejudice to renewal upon resolution of a discovery dispute. (Doc. #571.) 6 The plaintiffs have moved to supplement their requests. (Doc. ##685, 687).

evidentiary hearing.7 The bulk of the requested fees is for time

spent in activities plaintiffs describe as post-judgment monitoring

and enforcement. They argue they are entitled to such fees

pursuant to Pennsylvania v. Delaware Valley Citizens' Counsel for

Clean Air, 478 U.S. 546, 559 (1986) ("post-judgment monitoring of

a consent decree is a compensable activity for which counsel is

entitled to a reasonable fee").

The issue of the plaintiffs' entitlement to fees is hotly

disputed. In support of their motion, plaintiffs filed a

compendious fee application reflecting ten years of work and

approximately two thousand hours of time. The defendants make a

number of arguments in support of their position that plaintiffs

are barred from collecting any fees at all.

The plaintiffs' motion presents complicated legal and factual

issues best approached step by step. In an attempt to manage the

issues, the court limits its consideration at this juncture to the

threshold issue of whether the plaintiffs are precluded from

seeking an award of attorneys' fees. The defendants' challenge to

the amount of fees has been stayed pending the court's

7 Plaintiffs divide their request into 3 phases: November 29, 2000 through March 20, 2002 for negotiating the plaintiffs' fee claim and securing a final settlement agreement after the defendants inserted Section X; March 21, 2002 through May 22, 2002 for drafting a notice of the proposed settlement to the class, preparing for the fairness hearing and securing a court-order approving the settlement agreement; and June 4, 2002 through the June 2010 evidentiary hearing for "monitoring and enforcement activities." (Doc. #690 at 15-16.)

determination as to whether the plaintiffs are eligible for such an

award.8

The defendants maintain that the plaintiffs are not eligible

for an award of fees because (1) the court lacks jurisdiction to

decide their motion; (2) the plaintiffs did not comply with a court

order regarding the request for fees; (3) the text of the

settlement agreement precludes a fee award; and (4) plaintiffs'

post-judgment work is not compensable pursuant to Buckhannon Board

& Care Home, Inc. v. West Virginia Dep't of Health & Human

Resources, 532 U.S. 598 (2001).

A. Jurisdiction

The defendants first argue that according to the settlement

agreement, the court does not have jurisdiction to adjudicate the

plaintiffs' motion. (Doc. #688 at 2.)

The settlement agreement provides in relevant part that "[i]n

no event shall the Court's jurisdiction over this Agreement exceed

eight (8) years beyond the empanelling of the EAP." (Settlement

Agreement § III). As noted, the parties agree that the court's

8 With their opposition to the plaintiffs' motion, the defendants filed a motion for extension of time. Defendants requested that "[i]n the event that the Court does not agree with the State Defendants' arguments that Plaintiffs' motion should be denied as a matter of law," that they be granted "30 days from the court's decision in which to respond to the particular fee claims" of the plaintiffs' request. (Doc. #689.) The undersigned granted the defendants' motion, stating: "In the event the court grants an award of attorneys' fees and costs, the court will set a date for the submission of the defendants' opposition to the particular fee claims sought in the plaintiffs' fee petition." (Doc. #699.)

jurisdiction ended August 12, 2010. Under the terms of the

settlement agreement, defendants argue, the court "lacks

jurisdiction at this time to entertain plaintiffs' motion." (Doc.

#688 at 2.)

It is undisputed that the plaintiffs filed their fee

application during the court's oversight period and that the motion

was pending before the court when the settlement agreement expired.

There is persuasive authority that the expiration of the settlement

agreement does not divest the court of jurisdiction over the

plaintiffs' pending motion. See Nix v. Billington, 448 F.3d 411,

416 (D.C. Cir. 2006)("appellants' claims were within the

jurisdiction of the District Court, because they were filed during

the oversight period and were still pending before the trial court

when its oversight jurisdiction under the Agreement expired");

Thomason v. Russell Corp., 132 F.3d 632, 634 (11th Cir. 1998)

("Neither the parties in agreeing to the Decree's provisions, nor

the district court in approving them, could have intended that the

court would be barred from passing on a motion to enforce the

Decree simply because the court could not reach a decision until

after the Decree's expiration date."). In view of this authority,

the court should decline to deny the plaintiffs' motion on the

grounds of jurisdiction.

B. Compliance with court's order

The defendants next argue that the plaintiffs' motion should

be denied because the plaintiffs did not comply with an order of

the court before filing the motion.

The plaintiffs filed an earlier motion for an award of

attorneys' fees and costs. (Doc. #482.) The court denied the

motion without prejudice to refiling. The order stated in relevant

part that "[b]efore the motion is renewed or refiled, the court

shall hear from the parties as to the most appropriate manner of

addressing the issue in view of the current status of the record."

(Doc. #530.) The defendants state that the plaintiffs did not

notify the court before they filed this motion and that as a

result, the motion should be denied.

The plaintiffs represent, and the defendants do not dispute,

that they sought leave from the court during the evidentiary

hearing to file their motion. (Doc. #690 at 18.) Even if that

were not the case, the plaintiffs' omission would not warrant

denial of the motion.

C. Terms of the Settlement Agreement

The defendants next argue that the plaintiffs' motion is

foreclosed by the terms of the settlement agreement.

The settlement agreement provides in relevant part:

(Doc. #463, Settlement Agreement, Section X.)

As discussed above, after the defendants' inserted Section X,

the parties agreed on additional language in a side letter to guide

interpretation of Section X. The side letter provides:

(Doc. #690, Ex. T, Letter dated 3/1/02.)

"It is well established that settlement agreements are

contracts and must therefore be construed according to general

principles of contract law." Collins v. Harrison–Bode, 303 F.3d

429, 433 (2d Cir. 2002)(internal quotation marks and alteration

omitted). When analyzing a contract, the Court looks "at the

contract as a whole and give[s] operative effect to all of its

provisions. . . . The Court's analysis must focus on the intention

of the parties, as discerned from the language they employed."

Paradigm Contract Management Co., Inc. v. St. Paul Fire and Marine

Ins. Co., No. 3:10cv211(MRK), 2011 WL 4348132, at *4 (D. Conn.

Sept. 16, 2011)(applying Connecticut law). "[W]here the language

of the contract is clear and unambiguous, the contract is to be

given effect according to its terms." Lee v. BSB Greenwich Mortg.

Ltd. Partnership, 267 F.3d 172, 178 (2d Cir. 2001). "Contract

language is unambiguous when it has a definite and precise meaning

concerning which there is no reasonable basis for a difference of

opinion." World Properties, Inc. v. Arlon, Inc., 663 F. Supp.2d 98,

103 (D. Conn. 2009) (quoting Isham v. Isham, 292 Conn. 170, 181

(2009)). "[T]he mere fact that the parties advance different

interpretations of the language in question does not necessitate a

conclusion that the language is ambiguous. . . . A court will not

torture words to import ambiguity where the ordinary meaning leaves

no room for ambiguity. . . . Finally, in construing contracts, [the

court] give[s] effect to all the language included therein, as the

law of contract interpretation militates against interpreting a

contract in a way that renders a provision superfluous." Id.

"[I]f ambiguity exists, then extrinsic evidence of the parties'

intent may be looked to as an aid to construing the contractual

language." Sayers v. Rochester Tel. Corp. Supp. Mgmt. Pension Plan,

7 F.3d 1091, 1095 (2d Cir. 1993). See also Broadcast Music, Inc.

v. DMX Inc., 683 F.3d 32, 43 (2d Cir. 2012)("When the language of

a [consent] decree is ambiguous . . . a court may consider, inter

alia, extrinsic evidence to determine the parties' intent,

including the purpose of the provision and the overall context of

the decree.")

Defendants argue that "the plaintiffs, by virtue of the

[settlement] agreement itself, have waived" their statutory

eligibility for an award of attorneys' fees. (Doc. #688 at 6.)

See, e.g., Evans v. Jeff D., 475 U.S. 717, 730–732 (1986)

(prevailing party in civil-rights action may waive its statutory

eligibility for attorney's fees). Defendants say that according to

the "plain and unambiguous wording" of the settlement agreement

"plaintiffs explicitly waived any claim to further fees and costs."

(Doc. #688 at 6.) As support, they point to the agreement's

provision of a "one-time payment" of $675,000. Defendants argue

that this language "clearly limits attorneys' fees and costs to a

specific, negotiated amount" and bars any further award of fees.

(Doc. #688 at 9.)

Plaintiffs are adamant that they never waived their right to

seek fees to which they might be entitled under controlling law.

Everyone understood, the plaintiffs state, that $675,000

represented compensation only for fees plaintiffs had incurred as

of November 28, 2000; the parties never agreed that plaintiffs

would be precluded from seeking future fees. Plaintiffs maintain

that the term "one-time payment" refers to the manner of paying the

$675,000, that is, that the money was to be paid in a single

payment. According to plaintiffs, the phrase cannot reasonably be

construed as "reflective of an intent" to waive future attorneys'

fees. (Doc. #690 at 33.) And further, they argue, the side letter

elucidating Section X contemplates future fees and therefore is

inconsistent with defendants' present argument that Section X acts

as a complete bar to additional fees.

The court has carefully considered the parties' arguments and

examined the settlement agreement. The plain and unambiguous

language of the settlement agreement does not manifest an intent to

waive plaintiffs' statutory right to seek attorneys' fees. It is

undisputed that the $675,000 payment was only for fees plaintiffs

incurred prior to November 29, 2000. The agreement, while

providing for the payment of a specified amount in fees up to that

point, is silent as to any other fees. It does not contain a

release. There are no indicia of waiver - the agreement simply

fails to address the possibility of additional attorneys' fees.

See Valley Disposal, Inc. v. Central Vermont Solid Waste Management

Dist., 71 F.3d 1053, 1058 (2d Cir. 1995) (where parties agreed to

dismiss any claims pursuant to Rule 11 and 28 U.S.C. § 1927,

"[g]iven that the parties specified with particularity that some

costs were covered by their agreement, we find it difficult to

conclude that the settlement manifested an unspoken intent to waive

any costs not mentioned - in this instance, plaintiffs' attorneys'

fees pursuant to § 1988."); Brown v. General Motors Corp., 722 F.2d

1009, 1012 (2d Cir. 1983) (settlement agreement using broad

language to effect a mutual release of claims and accompanied by a

stipulation that the case be dismissed "without costs to any party"

"is, absent circumstances indicating otherwise, intended to settle

all claims involved in the particular litigation, including a claim

for attorney's fees"). The defendants' reliance on the phrase

"one-time payment" as evidence of the parties' intent to waive

further fees is unavailing; the phrase "one-time payment" cannot

bear the weight of the defendants' interpretation. The agreement

does not evince an intent to waive plaintiffs' attorneys' fees.

In the event that the language in Section X is ambiguous,

"extrinsic evidence of the parties' intent may be looked to as an

aid to construing the contractual language." Sayers v. Rochester

Tel. Corp. Supp. Mgmt. Pension Plan, 7 F.3d 1091, 1095 (2d Cir.

1993). Here, the parties' side letter undercuts the defendants'

interpretation. See Torres v. Walker, 356 F.3d 238, 246 (2d Cir.

2004)(finding the language of the stipulation at issue was clear

and that even if it was not, extrinsic evidence supported

plaintiffs' interpretation). The defendants do not address the

parties' agreed upon side letter. But the history of the

negotiations makes apparent that the side letter was a linchpin in

the parties' agreement to resolve the case. The record is plain

that the parties were not able to reach settlement until they

agreed upon language construing Section X. The purpose of the side

letter was to inform the interpretation of Section X. By providing

that plaintiffs could be awarded fees if the court found that the

defendants failed to substantially comply with the consent decree

and that "controlling law" would dictate the award of fees, the

side letter reflects the parties' agreement that Section X was not

a complete bar to future fees. (Doc. #690, Ex. T, Letter dated

3/1/02.)

D. Controlling Law

Not surprisingly, the parties do not agree on the "controlling

law" regarding fees. The defendants argue that fees are foreclosed

by the controlling law espoused in Buckhannon Board & Care Home,

Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S.

598 (2001). The plaintiffs, on the other hand, rely on

Pennsylvania v. Delaware Valley Citizens' Counsel for Clean Air,

478 U.S. 546 (1986) as the controlling law that permits

compensation for their post-judgment activities.

Defendants maintain that plaintiffs' reliance on Delaware

Valley is misplaced in view of the Supreme Court's subsequent

decision in Buckhannon. According to defendants, Buckhannon

wrought "a fundamental change" in the law and precludes an award of

fees for post-judgment monitoring that does not lead to a judgment

or order. (Doc. #688 at 7.) Defendants point out that the

plaintiffs' post-judgment efforts did not result in a "judicially

sanctioned change in the legal relationship of the parties," which

is required under Buckhannon for attorneys' fees. Buckhannon, 532

U.S. at 605. Plaintiffs respond that Buckhannon does not disturb

the court's discretion under Delaware Valley to award prevailing

civil rights plaintiffs attorneys' fees for post-judgment

monitoring.

In Delaware Valley, the Supreme Court permitted fees for time

counsel spent in administrative hearings because the time spent was

reasonably necessary to "secure the final result obtained from the

litigation." 478 U.S. at 561. The court reasoned that

"[p]rotection of the full scope of relief afforded by the consent

decree . . . [is] crucial to safeguard the interests asserted by

[plaintiff]; and enforcement of the decree, whether in the

courtroom before a judge, or in front of a regulatory agency, . .

. involve[s] the type of work which is properly compensable as a

cost of litigation." 478 U.S. at 558. As described by the Supreme

Court, to be compensable, the work must be "useful and of a type

ordinarily necessary to secure the final result obtained from the

litigation." Id. at 561. "Application of this standard is left to

the discretion of the district judge." Id. In light of Delaware

Valley, courts have awarded fees for post-judgment monitoring.

See, e.g., Martin v. Hadix, 527 U.S. 343, 347-49 (1999) (awarding

attorneys' fees for post-judgment monitoring performed in prison

litigation); New York State Ass'n for Retarded Children, Inc. v.

Carey, 711 F.2d 1136, 1145 (2d Cir. 1983) (remanding due to

excessiveness of fees, but permitting fees incurred in connection

with monitoring compliance of consent decree); West v. Manson, 163

F. Supp.2d 116, 119 (D. Conn. 2001)("prevailing civil rights

plaintiffs are entitled to reasonable attorneys' fees for

post-judgment monitoring").

In Buckhannon, the Supreme Court considered the meaning of

"prevailing party" for purposes of federal fee-shifting statutes.

The court rejected the "catalyst theory" for "gauging whether the

prevailing parties requirement was met. . . . Under the catalyst

theory, a plaintiff prevailed for the purpose of fee-shifting

provisions whenever the lawsuit 'had sufficient merit to withstand

a motion to dismiss' and 'brought about a voluntary change in the

defendant's conduct.'" Perez v. Westchester County Dept. of

Corrections, 587 F.3d 143, 150 (2d Cir. 2009) (quoting Buckhannon,

532 U.S. at 601, 605.) "Instead, the Court held, plaintiffs must

receive 'some relief on the merits' to be termed prevailing

parties, as, for example, when they win a judgment on the merits or

obtain 'settlement agreements enforced through a consent decree.'"

Perez, 587 F.3d at 150 (quoting Buckhannon, 532 U.S. at 603-04).

Courts considering Delaware Valley and Buckhannon have held

that the cases are not inconsistent. The case of Balla v. Idaho,

677 F.3d 910 (9th Cir. 2012), decided after the parties briefed

this issue, is instructive. In that case, the Ninth Circuit

concluded that Delaware Valley survives Buckhannon. The court

distinguished the cases, explaining that Buckhannon "speak[s] to

the case where there never has been judicially ordered relief"

whereas "Delaware Valley speaks to the case where there has been

judicial relief, though the monitoring work is subsequent to the

judicial order and produces no new order." Id. at 918. Other

circuits have similarly held that attorneys' fees for post-judgment

monitoring not resulting in additional relief may be awarded after

Buckhannon. See Johnson v. City of Tulsa, 489 F.3d 1089, 1108

(10th Cir. 2007) ("Buckhannon does not purport to overturn, or even

limit, Delaware Valley. . . In light of Delaware Valley . . . we

cannot accept the proposition that attorney fees for post-decree

efforts are compensable only if they result in a judicially

sanctioned change in the parties' legal relationship. The Decree

itself was such a change, and attorney fees incurred for reasonable

efforts to enforce that change - that is, protect the fruits of the

Decree - are compensable."); Cody v. Hillard, 304 F.3d 767, 773

(8th Cir. 2002) (plaintiffs were prevailing parties as a result of

consent decree and were entitled to reasonable fees for monitoring

compliance with decree). But see Alliance to End Repression v. City

of Chicago, 356 F.3d 767, 771 (7th Cir. 2004)("Monitoring may

reduce the incidence of violations of a decree, but if it does not

produce a judgment or order, then under the rule of Buckhannon it

is not compensable.") Under the relevant controlling law, then,

"post-judgment monitoring of a consent decree is a compensable

activity for which counsel is entitled to a reasonable fee."

Delaware Valley, 478 U.S. at 559.

For all these reasons, an award of attorneys' fees is not

wholly barred by either the terms of the settlement agreement, the

plaintiffs' failure to seek leave prior to filing their motion, or

the Supreme Court's decision in Buckhannon. This, however, does

resolve the plaintiffs' motion. Only the preliminary question of

whether the plaintiffs are barred from an award of attorneys' fees

has been answered. Finding that the plaintiffs are not foreclosed

from an award of attorneys' fees and costs is not the same as

concluding that they are entitled to the award they seek. That

determination remains. In the next step, the court must determine,

inter alia, whether the activities for which plaintiffs seek

compensation are properly compensable. As the court earlier

indicated, the defendants have yet to brief this issue.

Caselaw gives guideposts as to an award of fees. Establishing

prevailing party status in one stage of litigation "does not make

all later work compensable." Blackman v. District of Columbia, 328

F. Supp.2d 36, 42 (D.D.C. 2004). See Rosie D. ex rel. John D. v.

Patrick, 759 F. Supp.2d 146, 150 (D. Mass. 2011)(reasonable

monitoring "does not give a plaintiff's attorney carte blanche to

expend whatever hours are deemed necessary, willy nilly, with

confidence that the court will necessarily award fees to compensate

them.") To be compensable under Delaware Valley, the precedent

upon which plaintiffs rely, activities must be "useful and of a

type ordinarily necessary to secure the final result obtained from

the litigation." Delaware Valley, 478 U.S. at 561. Courts have

construed Delaware Valley as permitting compensation to plaintiffs

"for work done in protecting and enforcing their favorable

judgment, even where those efforts are not entirely successful,

provided that the work was reasonably necessary and appropriate and

contributed to some degree to the goal of ensuring the defendants'

compliance with the judgment." West v. Manson, 163 F. Supp.2d 116,

119 (D. Conn. 2001). See, e.g., Cody v. Hillard, 304 F.3d 767, 775

(8th Cir. 2002) (work done to defend a remedy is compensable).

To adjudicate the compensability of the fees and costs

plaintiffs request, the court requires further input from the

parties. Following the District Judge's ruling on this recommended

ruling, the undersigned will set a schedule.

III. Conclusion

For these reasons, the court recommends that the plaintiffs'

motion for attorneys' fees and costs (doc. #684) be granted only as

to the plaintiffs' eligibility to seek further fees as set forth

herein.

Any party may seek the district court's review of this

recommendation. See 28 U.S.C. § 636(b) (written objections to

recommended ruling must be filed within fourteen days after service

of same); Fed. R. Civ. P. 6(a), 6(d) & 72; Rule 72.2 of the Local

Rules for United States Magistrate Judges, United States District

Court for the District of Connecticut. Failure to timely object to

a magistrate judge's report will preclude appellate review. Small

v. Sec'y of Health and Human Serv., 892 F.2d 15, 16 (2d Cir. 1989).

SO ORDERED at Hartford, Connecticut this 21st day of August,

2012.

_________/s/___________________ Donna F. Martinez United States Magistrate Judge

P.J., et al. v. Education, et al.