UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
M.K., by and through his Mother : and Next Friend, MRS. K.,
Plaintiffs,
vs. No. 3:96cv00482(WIG)
THEODORE SERGI, et al.,
Defendants.
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RULING ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [# 232]
Mrs. K., on behalf of and as next friend of her son, M.K.,
(collectively “plaintiffs”), has brought this action alleging
that defendants violated the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, the Americans
With Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et
seq., § 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. § 794, and her rights under the Due Process Clause of the
Fourteenth Amendment to United States Constitution, made
actionable under 42 U.S.C. § 1983. Named as defendants are
Theodore Sergi, the former Commissioner of the Department of
Education (“DOE”); Darlene Dunbar, the Commissioner of the
Connecticut Department of Children and Families (“DCF”); Karl
Kemper, the Regional Administrator for the Eastern Region of DCF;
Carla Lebrun, Kemper’s subordinate (collectively defendants
Dunbar, Kemper, and Lebrun are referred to as the “DCF
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defendants”); the Putnam Board of Education (“Putnam”); John
Shea, the former Director of Student Services for Putnam; and
Patricia Kline, his successor as Director of Student Services
(collectively defendants Putnam, Shea, and Kline are referred to
as the “Putnam defendants”).
Plaintiffs’ original complaint was filed in 1996,
challenging certain aspects of the Due Process Hearing Officer’s
decision in Board of Education Case No. 95-353. Plaintiffs then
filed a second suit in 2003, M.K. v. Sergi, et al., No.
3:03cv1595(WIG), seeking to overturn certain portions of the
Hearing Officer’s decision in Board of Education Case No. 03-087.
DCF also filed an action against Mrs. K. and M.K., Department of
Children and Families v. M.K. and Mrs. K., No. 3:03CV1658(WIG),
challenging other aspects of the Hearing Officer’s decision in
Case No. 03-087. These three cases were consolidated. Over the
course of this litigation, Plaintiffs amended their complaint
four times, culminating in the last complaint filed on November
18, 2003, which is referred to by the parties as the
“consolidated complaint,” and which encompasses plaintiffs’
claims in all cases.
The consolidated complaint sets forth seven counts. Count I
is a claim for “costs, attorney’s fees, and expert fees” against
Putnam and DCF based on plaintiffs’ status as prevailing parties
in the due process hearings, Case Nos. 95-353 and 03-087. Count
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II challenges certain aspects of the Hearing Officer’s decisions.
Count III claims that DCF’s policy and practice of placing
“arbitrary time limits” on certain home-based services as
compared to institutional services violate 28 C.F.R. § 38.130(b)
and are discriminatory, and that DCF’s placement of arbitrary
time limits on the provision of services designed to prevent the
breakdown of the family unit violates 28 C.F.R. §
35.130(b)(3)(ii). Count IV alleges that defendants Kemper and
LeBrun violated plaintiffs’ rights secured by the ADA, § 504 of
the Rehabilitation Act, and § 1983 by virtue of certain actions
taken by them intentionally and/or in reckless disregard of
plaintiffs’ federal rights. Count V is addressed exclusively to
the Putnam defendants and alleges that they acted intentionally
and/or in reckless disregard of plaintiff’s rights under the ADA,
§ 504 of the Rehabilitation Act, the IDEA, and 42 U.S.C. § 1983,
by establishing and implementing policies and procedures which
ensured that M.K. could not receive the support needed to be
educated in the Putnam schools and refusing to authorize the
Putnam PPT to make placement or program decisions after DCF
placed M.K. with DCF-funded services. Count VI is brought
against defendant Sergi, the DOE Commissioner, for alleged
violation of the IDEA by virtue of his failing to put in place a
hearing process that would enable hearing officers to enter
orders against state agencies, such as DCF, which provide
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services that might impact the provision of a free appropriate
public education (“FAPE”) under the IDEA. The last count, Count
VII, is brought pursuant to § 1983 against defendants Kemper and
LeBrun for their violation of plaintiffs’ due process rights by
virtue of certain alleged intentional and/or reckless acts of
intimidation and retaliation set forth more fully in the
complaint.
Plaintiffs have now moved for partial summary judgment on
all counts of the consolidated complaint, except Count VII,1 as
well as on DCF’s appeal of certain aspects of the Hearing
Officer’s decision in Case No. 03-087. Most of the issues raised
by plaintiffs’ motion have already been addressed by this Court
in four prior summary judgment rulings: Ruling dated March 30,
2007, on Defendant Sergi’s Motion for Summary Judgment [Doc. #
231]; Ruling dated May 12, 2008, on the DCF Defendants’ Motion
for Summary Judgment [Doc. # 230]; Ruling dated May 12, 2008 on
Defendants M.K. & Mrs. K.’s Motion for Summary Judgment in
3:03cv1658 [Doc. # 275]; and Ruling dated June 6, 2008 on the
Putnam Defendants’ Motion for Summary Judgment [Doc. # 227]. The
factual background of this case has been presented at length in
these rulings and will not be repeated herein, except as
1 Although plaintiffs have not moved for summary judgment on Count VII, the Court has already considered that issue in ruling on the DCF defendants’ motion for summary judgment and found in favor of defendants LeBrun and Kemper on this count. (Ruling on DCF’s Motion for Summary Judgment at 48-49.)
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necessary for the resolution of any new issues presented by
plaintiffs’ motion.
Summary Judgment Standard
The standard governing motions for summary judgment is well-
settled. A motion for summary judgment may not be granted unless
the court determines that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). The court must resolve
all ambiguities and draw all inferences in favor of the
non-moving party. Id. at 255. If there is any evidence in the
record from which a reasonable inference could be drawn in favor
of the non-moving party on a material issue of fact, summary
judgment is improper. See Chambers v. TRM Copy Centers Corp., 43
F.3d 29, 37 (2d Cir. 1994).
However, with respect to IDEA appeals, the court’s inquiry
is not directed to ascertaining whether there are disputed issues
of material fact, but rather whether the administrative record,
together with any additional evidence, establishes that there has
been compliance with the IDEA processes and that the child’s
educational needs have been appropriately addressed. A.E. v.
Westport Bd. of Educ., 463 F. Supp. 2d 208, 215 (D. Conn. 2006).
“The Supreme Court and [the Second] Circuit have interpreted the
IDEA as strictly limiting judicial review of state administrative
5
decisions.” Collins v. Board of Educ. of Red Hook Central School
Dist., 164 Fed. Appx. 19, 2006 WL 93102, at *2 (2d Cir. Jan. 9,
2006). Summary judgment has been described as the “most
pragmatic procedural mechanism in the Federal Rules for resolving
IDEA actions.” A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d
534, 539 (D. Conn. 2002) (internal quotation marks and citations
omitted).
Federal courts reviewing administrative decisions under the
IDEA must base their determinations on a “preponderance of the
evidence developed at the administrative proceedings and any
further evidence presented by the parties.” Walczak v. Florida
Union Free School Dist., 142 F.3d 119, 122-23 (2d Cir. 1998); see
also Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 380
(2d Cir. 2003). Although the district court is required to
engage in an independent review of the administrative record,
this assessment “is by no means an invitation to the courts to
substitute their own notions of sound educational policy for
those of the school authorities which they review.” Hendrick
Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)
(considering the Education for All Handicapped Children Act,
subsequently amended and renamed IDEA); see also Cabouli v.
Chappaqua Central School Dist., 200 Fed. Appx. 519, 521 (2d Cir.
2006). “The IDEA’s statutory scheme requires ‘substantial
deference to state administrative bodies on matters of
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educational policy.’” A.E. v. Westport, 463 F. Supp. 2d at 215
(quoting Cerra v. Pawling Central School Dist., 427 F.3d 186, 191
(2d Cir. 2005)). “While federal courts do not simply rubber
stamp administrative decisions, they are expected to give due
weight to these proceedings, mindful that the judiciary generally
lacks the specialized knowledge and experience necessary to
resolve persistent and difficult questions of educational
policy.” Walczak, 142 F.3d at 129 (quoting Rowley, 458 U.S. at
206, 208 (internal quotation marks and citation omitted)); see
also Cabouli, 202 Fed. Appx. at 521; Mrs. B. v. Milford Bd. of
Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); M.H. v. Monroe-
Woodbury Central School Dist., 250 Fed. Appx. 428, 430 (2d Cir.
2007) (reversing judgment of district court where it failed to
give “due weight” to the administrative findings); Lillbask v.
Sergi, 193 F. Supp. 2d 503, 508 (D. Conn. 2002) (in reviewing the
findings and decisions of the hearing officer, the Court must
afford deference and due weight to a hearing officer’s findings
of fact). “Deference is particularly appropriate when, as here,
the state hearing officer’s review has been thorough and
careful.” Walczak, 142 F.3d at 129. Legal issues, however,
regarding the IDEA, other federal and state statutes, and due
process issues under the United States or state constitutions are
reviewed de novo, the rationale being that hearing officers do
not have greater experience or expertise than the courts on such
7
matters. See Lillbask, 193 F. Supp. 2d at 508; see also Mrs. B.
v. Milford, 103 F.3d at 1122.
Discussion
Applying the summary judgment standards set forth above, the
Court now turns to the seven issues raised by plaintiffs in their
motion for partial summary judgment.
1. Defendants’ Failure to Implement Hearing Officer’s Decision
Plaintiffs first argue that defendants have failed to
implement certain provisions of the Hearing Officer’s Order in
Case No. 03-087.2 Specifically, they claim that Putnam failed to
implement paragraph 4, which required it to pay for M.K.’s
psychotherapy to be provided by a therapist mutually agreed upon,
and paragraph 5, which required it to pay for psychiatric
supervision to appropriately manage M.K.’s medication regime. As
relief, plaintiffs seek an order requiring compliance with the
Hearing Officer’s Order, reimbursement for the costs paid by Mrs.
K. with her insurance, and one year of compensatory education to
compensate M.K. for the year of defendants’ non-compliance.
The Court has already ruled on the latter claim (¶ 5) in its
decision on the Putnam defendants’ motion for summary judgment.
The Court found that psychiatric supervision of M.K.’s ongoing
2 Although plaintiffs’ motion states that they are challenging the Putnam defendants’ alleged failure to comply with ¶ 4 of the Hearing Officer’s decision in Case No. 95-353, it is clear from Mrs. K.’s affidavit that this relates to ¶ 4 of the Order in Case No. 03-087, not Case No. 95-353.
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medication regime was not a “related service” under the IDEA and,
therefore, the Hearing Officer erred in requiring Putnam to pay
for this service.
With respect to the first claim (¶ 4), the facts of record
do not support plaintiffs’ claim. Mrs. K. states in her
affidavits that at the time of the due process hearing in 2003,
DCF was paying for M.K.’s therapy with John Maloney. Mrs. K. was
advised that she would have to pay for M.K.’s therapy through her
medical insurance. When Mr. Maloney left the agency, Pioneer
Valley Child & Family Services, in late June 2003, Mrs. K.’s
insurance initially did not cover therapy with his replacement,
Mr. Rose-Langston. Mrs. K. advised DCF and Putnam of this
problem at the October 22, 2003 PPT meeting, yet neither offered
to pay for the therapy. They suggested that she try to find
another therapist that was acceptable to her insurance carrier.
In December 2003, Pioneer Valley Child & Family Services assigned
another therapist to M.K., but the therapy was not effective due
to a poor relationship between M.K. and the therapist. In
February, 2004, Mrs. K. called JoAnn Messina, Putnam’s Director
of Student Services, and told her that she wanted M.K. to resume
therapy with Mr. Rose-Langston and reminded her that Putnam had
been ordered to pay for this therapy. M.K. discontinued
attending therapy. By letter dated March 2, 2004, Ms. Messina
advised Mrs. K. that Putnam would pay for the therapy if her
9
private insurance refused coverage. Mrs. K. maintains, however,
that Putnam never made arrangements with Pioneer Valley Child &
Family Services to pay for the therapy. M.K.’s therapy resumed
in June 2004, paid for by Mrs. K.’s medical insurance. As a
result of the confusion over payment for the therapy and delays
in reassigning therapists, plaintiffs claim that M.K. missed
therapy from February 2004 to June 1, 2004, for which they seek
one year’s compensatory education. (Mrs. K.’s Aff. ¶ 75; Mrs.
K.’s Supp. Aff. dtd. 11/8/04 at ¶¶ 3-16.)
Putnam responds that the Hearing Officer’s order in August
of 2003 was precipitated by DCF’s representation that it would
quit funding these services to M.K. upon his reaching the age of
18 (on August 31, 2003). As far as Putnam was aware, based on
therapy until October 2003. At the October 22, 2003, PPT
meeting, Mrs. K. notified Putnam for the first time that M.K.’s
therapist had left the agency and M.K. was no longer in therapy.
Mrs. K. and a Mrs. Morrell from DCF were to look into securing a
new therapist for M.K. (Putnam Ex. 5, 10/22/03 PPT Minutes.) The
Minutes reflect that Mrs. K. agreed to use her own health
insurance to cover this therapy. (Id.) On December 1, 2003, it
was reported at the PPT meeting that M.K. was scheduled to meet
with a new therapist that week (Putnam Ex. 6, 12/1/03 PPT
Minutes), and by the December 16th PPT meeting, M.K. reported
10
that he had met with his new therapist and planned to see him
every three weeks, although he questioned his need for therapy
and felt that he had only an intermittent need for therapy.
(Putnam Ex. 7, 12/16/03 PPT Minutes.) In mid- to late February
2004, Mrs. K. reported to Putnam that M.K. wanted to switch
therapists and that the new therapist was not covered by her
insurance. She requested that Putnam pay for M.K.’s therapy, and
Putnam agreed to provide funding. On March 2, 2004, Ms. Messina
advised M.K. as to the process for switching therapists, and
further advised him that the therapist he wanted to see, Mr.
Rose-Langston, was now covered by his mother’s insurance, but
that if “for some reason insurance [would] not pick up this
coverage, [Ms. Messina had] enclosed a letter for [him] that
[would] authorize payment from the Putnam Public Schools.”
(Putnam Ex. 9). The attached letter clearly stated that Putnam
would assume financial responsibility for two one-hour sessions
per month if private health insurance was unavailable. (Id.) At
the March 24, 2004, PPT meeting, M.K. reported that he was not
currently in counseling, although the Minutes do not indicate the
reason for this. (Putnam Ex. 10.) The Minutes also reflect that
Putnam had provided M.K. with a letter authorizing payment for
counseling with Mr. Rose-Langston, his therapist of choice, and
Mrs. K. indicated that her insurance would cover Mr. Rose-
Langston’s fees. (Id.)
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Putnam asserts that the issue concerning payment for M.K.’s
counseling was quickly resolved, and Mrs. K. never again
requested funding from Putnam. (Messina Aff. ¶¶ 10, 14, 18-50).
Thus, Putnam maintains that this is a non-issue. Moreover, under
the State’s regulations, Conn. Agencies Regs. § 10-76h-16(e),
Putnam argues, Mrs. K. was required to notify the Bureau of
Special Education and Student Services of Putnam’s alleged non-
compliance, which she never did. Further, Putnam should not be
responsible for a year’s compensatory education, which is an
equitable remedy designed to address gross and egregious
violations of the IDEA, which have resulted in a child’s being
completely excluded from an educational placement or being wholly
deprived of an education to which he was entitled, which did not
happen here. See Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir.
1990).
Plaintiffs’ claim that Putnam failed to comply with the
Hearing Officer’s Order ¶ 4 is premised upon M.K.’s allegedly
missing four months of therapy from February to June 1, 2004.
The Minutes of the PPT meetings, which plaintiffs attended, belie
this claim, and plaintiffs to not challenge the accuracy of these
records. They reflect that as soon as Putnam was made aware
that funding for M.K.’s therapy was a problem, Ms. Messina
immediately took care of the problem and provided written
authorization for Putnam to pay for any therapy not covered by
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private insurance. While it appears that M.K. did not attend
therapy in March, there is nothing in the record to suggest that
this was due to any fault on the part of Putnam. The records
indicate that M.K. did, in fact, attend the two therapy sessions
scheduled for April and May. (Putnam’s Ex. 12 & 13, Transition
Goals & Objectives for 5/10/04 and 6/1/04.) The records clearly
state that “Verbal reports from [M.K.], confirmed by [] and Mrs.
[K.]” indicate that M.K. was seeing Mr. Rose-Langston and had
attended the two appointments that were scheduled for April and
another two in May. His goal of attending scheduled counseling
was rated “accomplished.”
The Court finds that plaintiffs have failed to carry their
burden of proving that Putnam failed to comply with the Hearing
Officer’s Order ¶ 4, or that they suffered any damages as a
result of Putnam’s alleged failure to pay for therapy during this
time period. Accordingly, the Court denies plaintiffs’ motion
for summary judgment on this ground.
2. The Court Should Reverse The Hearing Officer’s Decision That She Had Limited or No Jurisdiction Over State Agencies
Plaintiffs next ask this Court to overrule the Hearing
Officer’s determination that she had limited or no jurisdiction
over the Connecticut Department of Children and Families (DCF)
and the Connecticut Department of Education (DOE). This same
issue was raised as to DOE in defendant Sergi’s motion for
summary judgment and as to DCF in the DCF’s motion for summary
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judgment and Mrs. K. and M.K.’s motion for summary judgment in
Case No. 3:03cv1658. As set forth in the Court’s rulings on
those motions, except in those instances in which DCF acts as the
LEA, the proper respondent in a due process hearing is the local
school board, the plaintiff’s LEA, not DCF, even though DCF may
be providing services that impact on the provision of a FAPE.
Additionally, the Court held that plaintiffs’ request that the
Court order DOE to put in place a hearing process that would
enable hearing officers to join any state agency which provides
services that “might impact the provision of a free appropriate
public education to a child identified as in need of special
education and related services under the IDEA” would extend the
hearing officer’s jurisdiction to matters far beyond the reach of
the IDEA. In accordance with those rulings, the Court denies
plaintiffs’ motion for summary judgment on this claim.
3. The Court Should Overrule The Hearing Officer’s Decision in Case No. 03-087 That Continuation of the Foster Placement Was Not Necessary for M.K. to Receive a FAPE
Plaintiffs next argue that the Hearing Officer’s decision in
Case No. 03-087 that continuation of M.K.’s foster placement was
not necessary for him to receive a FAPE was not fairly and
rationally based on the record and was contrary to prevailing
case law. This issue was addressed in the Court’s ruling on
Putnam’s motion for summary judgment. The Court adheres to its
finding based upon its review of the administrative record that
14
M.K. did not require a foster home placement in order to make
educational progress and that the foster home placement was not a
“related” service for which Putnam bore financial responsibility.
(Ruling on Putnam’s Motion for Summary Judgment at 42-48.)
Therefore, the Court denies plaintiffs’ motion for summary
judgment as to this claim.
4. The Court Should Overrule the Hearing Officer’s Determination That She Lacked Jurisdiction to Order That Special Education Services Be Provided at No Cost to The Family
Plaintiffs next challenge the Hearing Officer’s decision in
Case No. 03-087 that she had no jurisdiction to enter an order
holding plaintiffs harmless from any claim or lien that might be
asserted against them by the State of Connecticut for services
provided to M.K. These charges primarily relate to residential
placement costs. Again, this Court has addressed this issue in
its decision on DCF’s motion for summary judgment and held that,
because DCF has not asserted a lien against assets of Mrs. K. or
M.K. or against any recovery in this lawsuit, this issue is not
ripe for adjudication. The Court again declines to provide an
advisory ruling on a matter that is not yet ripe.
5. The Court Should Find That DCF Violated M.K.’s Rights Secured by the ADA and Enter Appropriate Remedial Orders
Plaintiffs assert that they have established a prima facie
case of discrimination under the ADA in that they have shown that
the DCF defendants repeatedly failed and/or refused to make a
professional judgment as to whether M.K. could live and be
15
educated in his home or home community, if necessary support
services were provided. The Court ruled in favor of DCF on this
issue in its ruling on DCF’s motion for summary judgment (Ruling
at 34-46) and adheres to that ruling.
6. The Court Should Award Plaintiffs Money Damages for the Acts of Retaliation by the DCF Defendants
Plaintiffs have also asserted claims for unlawful
retaliation against defendants Karl Kemper, Regional
Administrator for the Eastern Region of DCF from May 1, 1998, to
April 5, 2002, and Carla LeBrun, who was M.K.’s case supervisor
form April to June 1998 and was a social worker with DCF from
June 1995 to March 1996. The Court carefully reviewed these
retaliation claims in its ruling on DCF’s motion for summary
judgment (Ruling at 29-34) and found that the DCF defendants were
entitled to summary judgment on all of these claims.
Accordingly, the Court denies plaintiffs’ motion for summary
judgment in this respect.
7. The Court Should Order Defendants to Reimburse Plaintiffs for Their Costs, Expert Fees, and Attorneys’ Fees
Plaintiffs’ last argument is addressed to Count I, their
claim for the recovery of attorneys’ fees and costs incurred in
connection with the due process hearings and this consolidated
federal lawsuit, pursuant to 20 U.S.C. § 1415(i)(3)(B), based on
their status as “prevailing parties.” This issue has not been
addressed in any of the Court’s prior summary judgment rulings
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and will be addressed herein.
The IDEA provides that “[i]n any action or proceeding
brought under this section, the court, in its discretion, may
award reasonable attorneys’ fees as part of the costs to a
prevailing party who is the parent of a child with a disability.”
20 U.S.C. § 1415(i)(3)(B). “Fees awarded under this paragraph
shall be based on rates prevailing in the community in which the
action or proceeding arose for the kind and quality of services
furnished. No bonus or multiplier may be used in calculating the
fees awarded under this subsection.” 20 U.S.C. § 1415(i)(3)(C).
a. Prevailing Party Status
Under the IDEA’s fee-shifting provisions, the first question
that must be addressed is whether plaintiffs were “prevailing
parties.” The leading Supreme Court decision discussing the
meaning of the term “prevailing party” is Buckhannon Board & Care
Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001). In Buckhannon, the Supreme Court
rejected the “catalyst theory,” under which a plaintiff was
deemed a “prevailing party” if his or her lawsuit achieved the
desired result by bringing about a voluntary change in the
defendant’s conduct, even if there had been no judicially
sanctioned change in the legal relationship of the parties. Id.
at 601, 605. Instead, relying on the definition in Black’s Law
Dictionary, the Court held “a ‘prevailing party’ is one who has
17
been awarded some relief by the court.” Id. at 603. Thus, the
Court held, to be a “prevailing party,” a plaintiff must have
either secured 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.; see also Lillbask v. State of
Conn. Dep’t of Educ., No. 3:97cv1202, 2006 WL 752872, at *2 (D.
Conn. March 17, 2006). “The essential test for prevailing party
status is whether a party successfully obtains a ‘material
alteration of the legal relationship of the parties.’” C.C. v.
Granby Board of Educ., 453 F. Supp. 2d 569, 573 (D. Conn.
2006)(quoting Buckhannon, 532 U.S. at 604). Additionally, that
change must be judicially sanctioned. Roberson v. Guiliani, 346
F.3d 75, 79-80 (2d Cir. 2003) (citing Buckhannon, 532 U.S. at
603).
Although Buckhannon involved federal fee-shifting provisions
in the Americans with Disabilities Act and the Federal Fair
Housing Act Amendments, the Second Circuit has repeatedly applied
the requirements of Buckhannon to the attorneys’ fee provisions
of the IDEA. See A.R. v. New York City Dep’t of Educ., 407 F.3d
65, 74 (2d Cir. 2005); I.B. v. New York City Dep’t of Educ., 336
F.3d 79, 80 (2d Cir. 2003); J.C. v. Regional School Dist. No. 10,
278 F.3d 119, 123 (2d Cir. 2002). Thus, the Second Circuit found
that a plaintiff who obtained relief as a result of a hearing
officer’s order on the merits in an IDEA administrative
18
proceeding was a “prevailing party.”3 A.R., 407 F.3d at 75. The
Second Circuit has further noted that in applying the prevailing
party standard, it is helpful to identify the relief sought by
the plaintiff and to compare it with the relief ultimately
obtained. “[A] plaintiff may be considered a prevailing party
even though the relief ultimately obtained is not identical to
the relief demanded in the complaint, provided the relief
obtained is of the same general type.” P. v. Newington Board of
Educ., 512 F. Supp. 2d 89, 113 (D. Conn. 2007) (citing Koster v.
Perales, 903 F.2d 131, 133-35 (2d Cir. 1990)). Additionally, it
is not necessary for the plaintiff to prevail on all issues. In
P. v. Newington Board of Education, 512 F. Supp. 2d at 113, this
Court held that the plaintiff, who had prevailed on three of five
significant issues before the administrative hearing officer, was
a “prevailing party” entitled to an award of fees. And, in Mr. &
Mrs. M. v. Ridgefield Board of Education, No. 3:05cv584, 2008 WL
926518, at *2 (D. Conn. March 31, 2008), this Court found that
the plaintiffs, who had prevailed on some but not all of the
issues raised before the district court, were “prevailing
3 The Court reasoned that under the IDEA, a court may award attorneys’fees to a “prevailing party” “[i]n any action or proceeding brought under” the statute, 20 U.S.C. § 1415(i)(3)(B)(emphasis added), and since a “proceeding” includes an administrative proceeding, “prevailing party” status may be determined based upon results before a Hearing Officer. Id.; see also Vultaggio v. Board of Educ., 343 F.3d 598, 602 (2d Cir. 2003).
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parties.”
Although defendants adamantly maintain that plaintiffs were
not prevailing parties, the Court disagrees. At the first
administrative hearing, the issues presented were:
(1) Is Putnam and/or DCF responsible for providing services
to M.K. in the home, school, and community such as (although
not limited to) an in-home mentor, 24-hour on-call crisis
response personnel and crisis plan, case management, inter-
agency family team, respite care, and individual and family
therapy?
(2) Does a hearing officer have jurisdiction over DCF with
respect to the provision of such services?
(3) Did Putnam provide M.K. with a FAPE in the least
restrictive environment?
(Final Decision and Order in Case No. 95-353 at 1.) The Hearing
Officer found that Putnam did not supply sufficient supplementary
aids and services with regard to M.K.’s behavior to consistently
maintain him in the least restrictive environment. (Concl. of
Law ¶ 3.) She further held that Putnam did not always follow the
expert advice that it received, such as that M.K.’s homework be
done at school with support, (id. at ¶ 5), and that the time-out
room was over-used, which did not deter poor conduct. (Id. at ¶
6.) The Hearing Officer ordered a consultant, Dr. Williams, to
develop a behavioral management plan to be implemented at home
20
and at school and to provide training to M.K.’s teachers,
paraprofessionals, and family. (Id. at ¶ 7; Decision & Order at
¶ 3.) She found that Putnam never implemented any parent
counseling and/or training. (Concl. of Law at ¶ 8.) She further
found that M.K.’s IEP, except for the addition of a
paraprofessional to provide behavioral support in the regular
classroom, never changed to address his deteriorating behavior.
(Id. at ¶ 9.) She ordered Putnam to re-assign a full-time
paraprofessional to M.K.’s classroom upon his return to provide
behavior support and to hire an educational consultant to assist
the PPT in developing an appropriate IEP and to provide training
and consultation to staff and to monitor the implementation of
all components of M.K.’s educational program. (Decision & Order
at ¶¶ 5 & 6.) She found that the PPT never received any ongoing
expert advice as to M.K.’s medications and psychiatric condition,
and ordered M.K.’s psychiatrist to serve as a clinical advisor to
the PPT. (Concl. of Law at ¶ 10; Decision & Order ¶ 4.) On the
other hand, she found that a 24-hour crisis plan with an on-call
person for family support, respite care for the family, and an
in-home mentor were not related services for which Putnam bore
responsibility. (Id. at ¶ 23.) She also found that she had
limited jurisdiction over DCF, but since DCF was acting as M.K.’s
LEA at the time of the hearing, she ordered DCF to cooperate and
provide input to the PPT in planning for M.K.’s transition back
21
into the Putnam schools. (Id. at ¶¶ 24-26; Decision & Order at ¶
1.)
Based on the Court’s review of the Hearing Officer’s
decision, the Court finds that plaintiffs prevailed on a
substantial number of substantive issues as a result of the first
administrative hearing that effected a significant alteration in
their relationship with Putnam, and which was “judicially
sanctioned” by virtue of the Hearing Officer’s decision. The
Court finds that plaintiffs were “prevailing parties” as to
defendant Putnam, but not as to defendant DCF, the only other
defendant against which plaintiffs seek an award of fees and
costs.
With respect to the second administrative hearing,
plaintiffs were less successful, yet they still succeeded on a
substantial number of issues, particularly with respect to those
involving transition services. The issues before the Hearing
Officer were:
(1) Is M.K. eligible for services under the IDEA?
(2) Did the May 11, 2001 IEP provide M.K. with a FAPE?
(3) Did Putnam provide M.K. with appropriate transition
services?
(4) Is Putnam responsible for paying for M.K.’s foster
placement, therapy, and other support services provided by
DCF?
22
(Final Decision & Order, Case No. 03-087, at 1.)
As the Hearing Officer’s decision reflects, on the opening
day of the hearing, Putnam reported that it was no longer
contesting M.K.’s eligibility to receive special education
services under the IDEA, thus rendering moot the first issue.
With respect to the other issues, the Hearing Officer found that
Putnam had not provided the appropriate transition services that
M.K. required to move from high school to post-high school life
and ordered Putnam to provide these services for a period of time
to be determined by an independent consultant hired by Putnam,
but at least through the 2003-04 school year. (Concl. of Law at
¶ 8; Final Decision & Order at ¶ 7.) She further held that the
May 11, 2001 IEP was incomplete both as to his goals and his
transition needs. (Concl. of Law at ¶ 10; Final Decision & Order
at ¶ 2.) She ordered Putnam to provide psychiatric support for
M.K.’s medication regime (which decision this Court has
overruled), to pay for ongoing therapy, and to hire an
independent consultant to oversee the creation and implementation
of an IEP that contains appropriate transition plans and goals.
(Concl. of Law at ¶¶ 11 & 12; Final Decision & Order at ¶¶ 3-5.)
On the other hand, she denied plaintiffs’ request that
Putnam pay for M.K.’s foster home, which finding this Court has
affirmed. (Id. at ¶ 13.) She also denied the parents’ request
that she order Putnam to hold them harmless from any claim
23
asserted by the State for services provided by DCF, which this
Court also upheld. (Id. at ¶ 19.) Lastly, she declined to issue
an order prohibiting DCF from terminating services that it was
providing to M.K., except as otherwise set forth in her order.
(Id. at ¶ 20.)
Again, while plaintiffs did not succeed on every issue, they
did prevail on a significant number of substantive issues as to
Putnam, which changed the legal relationship of the parties and
renders them prevailing parties as to Putnam.
The proceedings in this Court, however, are another matter.
Except as to plaintiffs’ claim for attorneys’ fees and costs,
plaintiffs have not prevailed as to any defendant. Obviously, at
the time the parties submitted their briefs on the issue of
attorneys’ fees, they did not have the benefit of this Court’s
rulings on the various summary judgment motions. Those motions
have now been ruled on. As discussed below, the Court will allow
plaintiffs and Putnam to address how plaintiffs’ degree of
success affects a reasonable fee award under the IDEA.
b. The Fee Award
Having found that plaintiffs are prevailing parties at least
at the administrative hearing level, the Court must next
determine the amount of attorneys’ fees to be awarded. The
district court is afforded broad discretion in determining a
reasonable fee award based on the circumstances in the case.
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Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also 20
U.S.C. § 1415(i)(3)(B). Typically, the starting point for
calculating a reasonable fee award in IDEA cases in this District
and the Second Circuit has been the calculation of a so-called
“lodestar” figure, which is arrived at by multiplying the number
of hours reasonably expended in the litigation by a reasonable
hourly rate. See, e.g., A.R. v. New York City Dep’t of Educ.,
407 F.3d at 79-84; Mr. & Mrs. M. v. Ridgefield Board of Educ.,
2008 WL 926518, at **2-3; C.C. v. Granby Board of Educ., 453 F.
Supp. 2d at 573-76. Under the IDEA, the rates to be used in
calculating a fee award are the 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).
By statute, no bonus or multiplier may be applied. Id.
The Second Circuit has recently abandoned the use of the
term “lodestar” in Arbor Hill Concerned Citizens Neighborhood
Ass’n v. County of Albany, 522 F.3d 182, 189 (2d Cir. Apr. 10,
2008), a case brought under the Voting Rights Act.4 Instead, the
Court explained that the “better course” was for the district
court, in the exercise of its “considerable discretion, to bear
in mind all of the case-specific variables that we and other
4 The Second Circuit notes in a footnote that it did not purport to require future panels of the Court to abandon the term “lodestar,” which was too well entrenched. However, the panel in the Arbor Hill case believed “that it is a term whose time has come.” 522 F.3d at 189 n.4.
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courts have identified as relevant to the reasonableness of
attorney’s fees in setting a reasonable hourly rate.” Id.
(emphasis in original). These factors include those set forth in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974),5 abrogated on other grounds by Blanchard v. Bergeron, 489
U.S. 87, 92-93 (1989), as well as the factors that other courts
have applied in determining what a reasonable, paying client
would be willing to pay.6 There is a great deal of overlap
5 The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of this case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the 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 attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Arbor Hill, 522 F.3d at 187 n.3 (citing Johnson, 488 F.2d at 717-19). 6 The Court held that, in determining what a reasonable, paying client would be willing to pay, the district court should consider, inter alia, the complexity and difficulty of the case, the available expertise and capacity of the client’s other counsel (if any), the resources required to prosecute the case effectively, the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might have initiated the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected little or no remuneration), and other returns (such as reputation) that an attorney might expect to gain from the representation. Arbor Hill, 522 F.3d at 184. Many of these factors substantially overlap the Johnson factors. See Southern New England Telephone Co. v. Global Naps, Inc., Case No. 3:04cv2075, 2008 WL 1848899, at *1 n.1 (D. Conn. Apr. 25, 2008).
26
between these factors. The Court will apply those that it
considers relevant to the circumstances of this case.
In an IDEA case, however, the statute specifically provides
that the Court is not to apply a bonus or multiplier, the second
step of the traditional “lodestar” methodology, see Johnson, 488
F.2d at 718-20, and, thus, it does not appear that the Arbor Hill
decision has significantly changed the approach this Court should
take in exercising its discretion to determine a “reasonable”
attorneys’ fee award.
Plaintiffs, as the fee applicants, bear the burden of
“documenting the appropriate hours expended and hourly rates.”
Hensley, 461 U.S. at 437. Plaintiffs are seeking a “fully
compensatory” fee in excess of $400,000. The Supreme Court has
held the plaintiff’s degree of success is “‘the most critical
factor’ in determining the reasonableness of a fee award.”
Farrar v. Hobby, 506 U.S. 103, 114 (1992)(quoting Hensley, 461
U.S. at 436). In light of plaintiffs’ lack of success in the
District Court litigation, the Court does not intend to award a
“fully compensatory” fee. As this Court held in P. v. Newington
Board of Education, 512 F. Supp. 2d at 114, the amount of a fee
award under the IDEA should be reduced to reflect the extent of
the success the plaintiff achieved. Indeed, the Court noted in
that case, the fact that the plaintiff was pursuing a federal
court action was evidence that the plaintiff had not achieved all
27
of the relief sought. Thus, this Court intends to reduce the fee
award to reflect the extent of plaintiffs’ success at both the
administrative level and in the federal court litigation.
The IDEA provides that fees awarded must be reasonable.
These consolidated cases have been tremendously over-litigated
and over-briefed – although not just by plaintiffs’ counsel. The
summary judgment briefs alone exceeded 1,000 pages in length,
which has contributed in large part to the delays in the Court’s
rulings on these motions. The Court intends to carefully
scrutinize the records submitted by counsel to insure that the
time was “usefully and reasonably expended.” See Lunday v. City
of Albany, 42 F.3d 131, 134 (2d Cir. 1994)(remanding award of
attorneys' fees and directing the magistrate judge to review
critically counsel's time records).7 The Court will exclude from
7 The Court must
examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case. Efforts put into research, briefing and the preparation of a case can expand to fill the time available, and some judgment must be made in the awarding of fees as to diminishing returns from such further efforts. . . . In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.
Gierlinger, 160 F.3d 858, 876 (2d cir. 1998) (quoting DiFilippo v. Morizio, 759 F.2d 231, 235-36 (2d Cir. 1985)).
28
the fee calculation hours that were not reasonably expended.
Hensley, 461 U.S. at 434. Hours that are excessive, redundant,
or otherwise unnecessary will not be awarded. See Kirsch v.
Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998). This Court
also intends to heed the Second Circuit’s words of caution that
“attorney’s fees are to awarded with an eye to moderation,
seeking to avoid either the reality or the appearance of awarding
windfall fees.” New York State Assoc. for Retarded Children v.
Carey, 711 F.2d 1136, 1139 (2d Cir. 1983) (citations and internal
quotations omitted).
The Court must also determine the appropriate rate for the
attorneys’ fees being awarded. David Shaw has requested a rate
of $375 per hour for the work that he performed; $275 per hour
for work performed by Attorney Feinstein; and $150 per hour for
work performed by Attorney Fausey. The IDEA provides that a fee
award must be based on rates prevailing in the community in which
the action or proceedings arose for the kind and quality of
services furnished. 20 U.S.C. § 1415(i)(3)(C). In making this
determination, the Court intends to review recent fee awards in
other IDEA cases in this District for attorneys with comparable
experience.8 Additionally, although much of the legal work in
8 The Court notes that Judge Chatigny awarded Attorney Shaw fees in an IDEA case at the rate of $315 per hour in C.C. v. Granby Board of Education, 453 F. Supp. 2d at 574 (Sept. 30, 2006), as did Judge Thompson in P. v. Newington Board of Educ., 512 F. Supp. 2d at 116 (Sept. 28, 2007).
29
this case was performed many years ago, the Second Circuit has
held that “in order to provide adequate compensation where the
services were performed many years before the award is made, the
rates used by the court to calculate the lodestar should be
‘current rather than historic hourly rates.’” Gierlinger, 160
F.3d at 882 (quoting Missouri v. Jenkins, 491 U.S. 274, 284
(1989)).
Several times during the pendency of this action,
plaintiffs’ counsel filed motions to supplement his request for a
fee award to add updated affidavits on prevailing rates. The
Court denied these motions, stating that if and when the matter
of attorneys’ fees became relevant, counsel would be given ample
opportunity to supplement his fee application both in terms of
the number of hours requested and the hourly rate requested. To
the extent that counsel considers it necessary to supplement his
fee application, he will be given an opportunity to do so.
Additionally, plaintiffs seek an award of costs and expert
fees in the amount of $16,567.22. An itemization of these costs
was supposed to have been filed under seal as part of Exhibit
“M.” The sealed copy of Exhibit “M,” however, does not contain a
breakdown of these costs, although the Court suspects that the
majority of these costs are expert consultants’ fees. While the
Court recognizes the importance of expert witnesses in a case
such as this, after the filing of plaintiffs’ motion, the Supreme
30
Court issued a ruling holding unequivocally that non-attorney
expert’s fees for services rendered to prevailing parents in an
IDEA action are not recoverable “costs” under the IDEA’s fee-
shifting provision, 20 U.S.C. § 1415(i)(3)(B). Arlington Central
School District Board of Educ. v. Murphy, 548 U.S. 291 (2006).
Thus, these expert consultant fees will not be allowed. With
respect to the other costs, at this juncture the Court cannot
rule on which costs will be allowed.
Thus, the Court will allow both sides (plaintiffs and
Putnam) to file supplemental briefs, not to exceed ten (10)
pages, addressed solely to the issue of a reasonable fee award
and costs in light of the Court’s recent rulings on the summary
judgment motions. The Court has the benefit of the briefs
already filed, and the arguments made therein do not need to be
repeated. Plaintiffs’ counsel may also file the supplemental
affidavits that he sought to file earlier addressing the
reasonableness of his requested rate. Plaintiffs’ counsel should
also file an itemization of costs sought to be recovered,
excluding all expert witness fees. Plaintiffs’ briefs should be
filed within twenty days of the date of this ruling. Defendant
Putnam will have twenty days to respond. No reply briefs will be
permitted without leave of Court.
Conclusion
Accordingly, for the reasons set forth above, plaintiffs’
31
motion for partial summary judgment is DENIED as to all counts
except as to Count I. As to Count I, the Court finds that
plaintiffs are “prevailing parties” as to defendant Putnam, but
not as to defendant DCF. Plaintiffs are entitled to recover a
reasonable attorneys’ fee award as part of the costs against
defendant Putnam only, in an amount to be determined after the
filing of supplemental briefs, as set forth above.
SO ORDERED, this 9th day of June, 2008, at Bridgeport,
Connecticut.
/s/ William I. Garfinkel WILLIAM I. GARFINKEL United States Magistrate Judge
32