UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
MR. & MRS. "M," Parents of "K.M."
Plaintiffs, :
v. : CASE NO. 3:05-CV-584(RNC)
RIDGEFIELD BOARD OF EDUCATION, :
Defendant. :
RULING AND ORDER
I. Background
In 2005, Mr. and Mrs. "M"1 ("the parents" or "plaintiffs")
brought this suit against the Ridgefield Board of Education ("the
Board" or "defendant") under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq., appealing a
decision by an impartial hearing officer of the State Department
of Education and seeking reimbursement for the cost of private
school for their daughter, "K.M." On March 30, 2007, this Court
concluded that "the Board's failure to include the parents in the
development of the 2004-2005 [individualized education plan
('IEP')] denied K.M. a [free appropriate public education
('FAPE')] for the second grade, but that the Board's procedural
errors during the 2003-2004 school year did not rise to the level
of denying K.M. a FAPE for first grade." Mr. "M" ex rel. "K.M."
1 To protect the privacy of the minor plaintiff, the Court authorized the use of pseudonyms [doc. # 4].
v. Ridgefield Bd. of Educ., No. 3:05-CV-584(RNC), 2007 WL 987483,
at *5 (D. Conn. Mar. 30, 2007). The matter is now before the
Court on plaintiffs’ motion for tuition reimbursement and
attorneys' fees.
II. Discussion
A. Tuition Reimbursement
Because the Board's IEP denied K.M. a FAPE and because the
parents' choice of private placement was appropriate, the Court
has discretion to award tuition reimbursement. See 20 U.S.C. §
1412(a)(10)(C)(ii) (2000); Walczak v. Fla. Union Free Sch. Dist.,
142 F.3d 119, 129 (2d Cir. 1998). In determining an appropriate
award, "the district court enjoys broad discretion in considering
equitable factors." Gagliardo v. Arlington Cent. Sch. Dist., 489
F.3d 105, 112 (2d Cir. 2007). The Court may reduce or deny
reimbursement if the parents' actions were unreasonable. 20
U.S.C. § 1412(a)(10)(C)(iii)(III) (2000). Though I cannot
conclude that the parents acted unreasonably, equitable factors
counsel in favor of reducing the reimbursement.
On May 18, 2004, the parents informed the Board of their
decision to place K.M. at Villa Maria, a private school. At the
June 17, 2004 PPT meeting held in the absence of the parents, the
Board considered and rejected the Villa Maria placement. The
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Board concluded that the district could provide an appropriate
education within the public schools. The hearing officer found
that the IEP developed at the meeting was appropriate.
On learning that the meeting had occurred in their absence,
the parents complained about the Board's failure to reschedule
the meeting. After an unsuccessful mediation session, the
parents renewed their request for a due process hearing on
September 2, 2004, and placed K.M. at Villa Maria for the 2004-
2005 school year.
Though the parents reasonably and promptly asked the Board
to reschedule the PPT meeting, the hearing officer concluded that
the parents' position would not have changed even had they
attended the meeting. In the hearing officer’s view, the parents
would not have agreed to any IEP that did not include a placement
outside the public schools.
In light of the hearing officer’s findings, full
reimbursement is not appropriate. See Carmel Cent. Sch. Dist. v.
V.P. ex rel. G.P., 373 F. Supp. 2d 402, 418 (S.D.N.Y. 2005)
(tuition reimbursement denied in part due to parents' "clear
intention not to allow [their child] to attend public school");
Adams v. Oregon, 195 F.3d 1141, 1151 (9th Cir. 1999) (one factor
in awarding reimbursement is existence of other appropriate,
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substitute placements). I conclude that the parents are entitled
to reimbursement of $17,314.50, half of the $34,629.00 they
sought for tuition and related expenses. See, e.g., Deal ex rel.
Deal v. Hamilton County Dep't. of Educ., No. 1:01-cv-295, 2006 WL
2854463, at *5 (E.D. Tenn. Aug. 1, 2006) (reducing tuition
reimbursement by fifty percent when, after a procedural violation
that deprived student of a FAPE, parents refused to consider the
school district's alternate, appropriate placement).
B. Attorneys' Fees
Under the IDEA, courts have discretion to award attorneys'
fees to parents when they are a prevailing party. 20 U.S.C. §
1415(i)(3)(B)(i)(I) (2000). Attorneys' fees must be "based on
rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished."
20 U.S.C. § 1415(i)(3)(C) (2000). Courts "interpret the IDEA fee
provisions in consonance with those of other civil rights
fee-shifting statutes." I.B. ex rel. Z.B. v. N.Y. City Dep't of
Educ., 336 F.3d 79, 80 (2d Cir. 2003).
1. Prevailing Party
Plaintiffs are considered "prevailing parties" "if they
succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing the suit."
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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (internal
quotation omitted). The essential test is whether a party
successfully obtains a "material alteration of the legal
relationship of the parties." Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001).
The Court's conclusions that the Board denied K.M. a FAPE during
the 2004-2005 school year, that the parents' private school
placement was appropriate, and that the parents are entitled to
partial tuition reimbursement materially alter the legal
relationship of the parties. The parents are therefore the
prevailing party.
2. Reasonable Fee
Having prevailed on their tuition reimbursement claim for
the 2004-2005 school year, the parents are entitled to a
reasonable fee. See Hensley, 461 U.S. at 435. ("Where a
plaintiff has obtained excellent results, his attorney should
recover a fully compensatory fee. . . . In these circumstances
the fee award should not be reduced simply because the plaintiff
failed to prevail on every contention raised in the lawsuit.").
Determining a reasonable fee, traditionally termed the
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"lodestar,"2 "involves determining the reasonable hourly rate . .
. and the reasonable number of hours expended, and multiplying
the two figures together to obtain the presumptively reasonable
fee award." Porzig v. Dresdner, Kleinwort, Benson, North America
L.L.C., 497 F.3d 133, 141 (2d Cir. 2007).
a. Reasonable Hourly Rate
"The reasonable hourly rate is the rate a paying client
would be willing to pay." Arbor Hill Concerned Citizens, 493 F.3d
at 117. The Court should "bear in mind all of the case-specific
variables that [courts] have identified as relevant to the
reasonableness of attorney's fees in setting a reasonable hourly
rate,"3 recognizing that "a reasonable, paying client wishes to
spend the minimum necessary to litigate the case effectively."
Id. at 117-18. The fee applicant bears the burden of producing
2 At least one panel of the Second Circuit has abandoned the use of the term "lodestar" finding courts should instead calculate a "presumptively reasonable fee." Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 117 (2d Cir. 2007). 3 These variables include: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required; (4) the preclusion of other employment due to acceptance of the case; (5) the customary hourly rate in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
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"satisfactory evidence" that the hourly rates underlying the fee
request are reasonable. See Farbotko v. Clinton County, 433 F.3d
204, 209 (2d Cir. 2005).
After considering the parties' submissions, I conclude that
a reasonable hourly rate for Attorney Laviano is $250. This rate
is reasonable in light of Attorney Laviano's specialization in
special education, her more than ten years of experience, her
partial success in this case, her typical hourly rate of $350,
and rates awarded in similar cases in this District. See, e.g.,
P. ex rel. Mr. P. v. Newington Bd. of Educ., 512 F. Supp. 2d 89,
116 (D. Conn. 2007) ($315 hourly rate for attorney with more
experience than Attorney Laviano); C.C. v. Granby Bd. of Educ.,
453 F. Supp. 2d 569, 574 (D. Conn. 2006) (same); Lillbask ex rel.
Mauclaire v. Conn. Dep't. of Educ., No. 3:97 CV 1202(PCD), 2006
WL 752872, at *5 (D. Conn. Mar. 17, 2006) ($200 hourly rate for
attorney with twelve years special education experience who
prevailed on some claims); C.G. v. New Haven Bd. Of Educ., 988 F.
Supp. 60, 69 (D. Conn. 1997) ($250 hourly rate for experienced
special education attorney).
Plaintiffs request a $250 hourly rate for Attorney Jonson
and a $100 hourly rate for work Ms. Jonson performed as a legal
intern. I find these rates excessive. A reasonable hourly rate
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for the 2006-2007 work performed by Attorney Jonson, who
graduated from law school in 2004 and was admitted to the bar in
2005, is $125. See, e.g., C.G. v. New Haven, 988 F. Supp. at 69
(approving a $100 hourly rate for an associate working on an IDEA
case); N.S. ex rel. P.S. v. Stratford Bd. of Educ., 97 F. Supp.
2d 224, 231 n.5 (D. Conn. 2000) (finding a $150 hourly rate would
be high for a first-year associate). An award of $75 for the
work she performed as a legal intern is reasonable. See, e.g.,
C.C. v. Granby, 453 F. Supp. 2d at 576 ($75 hourly rate for
paralegal work); P. v. Newington, 512 F. Supp. 2d at 116 (same).
b. Hours Billed
In determining the reasonableness of the hours billed, the
number of hours claimed by counsel "must be supported by
contemporaneous time records, affidavits, and other materials."
McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA
Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006). These
records should "identify the general subject matter of their time
expenditures." Hensley, 461 U.S. at 437 n.12.
Many of Attorney Laviano and then-legal intern Jonson's
entries are too vague to "provide an adequate basis upon which to
evaluate the reasonableness of the services and hours expended on
a given matter." Mr. B. ex rel. W.B. v. Weston Bd. of Educ., 34
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F. Supp. 2d 777, 781 (D. Conn. 1999). These entries include
"phone call with attorney," "email to client," "meeting with
client," "research," "prepare for; meet with client," "prepare
for hearing," "phone conference with client," and "review papers
dropped off by client." See id. (finding entries such as "review
of file," "review of correspondence," "research," "conference
with client," and "preparation of brief" too vague); G.M. ex rel.
R.F. v. New Britain Bd. of Educ., No. 3:96CV2305 AVC, 2000 WL
435577, at *5 (D. Conn. Mar. 8, 2000) (finding "preparation for
hearing," "appeal analysis," and "work on appeal brief" too
vague). "[W]here adequate contemporaneous records have not been
kept, the court should not award the full amount requested."
F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265
(2d Cir. 1987). Accordingly, the Court reduces the hours billed
by twenty-five percent for Attorney Laviano (from 192.975 hours
to 145 hours) and then-intern Jonson (from 58.88 hours to 44
hours). See, e.g., G.M. ex rel. R.F., 2000 WL 435577, at *5
(reducing total hours by twenty percent).
This results in an award of $36,250 for the work done by
Attorney Laviano, an award of $3,300 for the work done by Ms.
Jonson in her capacity as an intern, and an award of $275 for the
work she did as an attorney. The total fee award is $39,825.
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3. Reimbursing Parent-Attorney
To reduce litigation expenses, Mrs. M, an experienced
attorney, performed some legal research and drafting in this case
under the supervision of plaintiffs' counsel. The parents
contend that they should be compensated for her work.
The Second Circuit has held that "a parent-attorney is not
entitled to attorneys' fees under the IDEA for the representation
of his or her own child." S.N. ex rel. J.N. v. Pittsford Cent.
Sch. Dist., 448 F.3d 601, 605 (2d Cir. 2006). Plaintiffs argue
that the concern underlying this holding -- that a
"parent-attorney would lack sufficient emotional detachment to
provide effective representation," id. at 603 -- is not an issue
here because they retained other counsel. This Court, however,
is bound by the Second Circuit's unequivocal holding. Moreover,
the Court finds persuasive the reasoning of the Fourth Circuit
that "[l]oving parents . . . will of course 'fight' for their
children - with or without a statutory award of fees for their
services. To permit an attorney-parent to recover statutory fees
for representing his child in IDEA proceedings is thus not
necessary to ensure a parent's efforts on behalf of his child . .
. ." Doe v. Bd. of Educ. of Baltimore County, 165 F.3d 260, 264
(4th Cir. 1998).
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C. "Stay-Put" Provision
The parents ask the Court to rule that Villa Maria, K.M.'s
private school placement, is her "stay-put" placement. Pursuant
to 20 U.S.C. § 1415(j), "during the pendency of any proceedings
[regarding parents' complaints about an IEP], unless the State or
local educational agency and the parents otherwise agree, the
child shall remain in the then-current educational placement of
such child." When a parent's challenge to a proposed IEP
succeeds, "consent to the private placement is implied by law."
Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2d Cir. 2002). As a
result of this Court's previous holding that the Board's 2004-
2005 I.E.P. did not provide a FAPE, and the present order for
tuition reimbursement, K.M.'s stay-put placement is Villa Maria.
See id. ("an order for reimbursement predicated on a finding that
a proposed IEP is inappropriate for a child constitutes a change
in the child's current educational placement for purposes of
interpreting the pendent placement provision, at § 1415(j), of
the IDEA").
III. Conclusion
Accordingly, plaintiffs' motion for reimbursement of
tuition, transportation, related services, and attorneys' fees
[doc. #49] is granted in part. Plaintiffs are awarded $17,314.50
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in tuition reimbursement and related costs, and $39,825 in
attorneys' fees. The Clerk will enter judgment accordingly and
close the file.
So ordered.
Dated at Hartford, Connecticut this 30th day of March 2008.
/s/ Robert N. Chatigny United States District Judge
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