UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Ingabritt LILLBASK, : as Legal Guardian on Behalf of : Lindsey MAUCLAIRE, : Plaintiff, :
-vs- : Civ. No. 3:97cv1202 (PCD)
STATE OF CONNECTICUT : DEPARTMENT OF EDUCATION, : et al. : Defendants. :
RULING ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS
Plaintiff, Inga Britt Lillbask, as legal guardian on behalf of Lindsey Mauclaire, moves
[Doc. No. 373] to recover attorney’s fees and costs as the prevailing party in an action filed
pursuant to the Individuals with Disabilities Education Act (“IDEA”). For the reasons that
follow, Plaintiff’s motion is granted in part.
I. Background
Plaintiff is the guardian of Lindsey Mauclaire, a handicapped child who receives special
education under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et.
seq. During the 1996 school year, Lindsey attented a pre-kindergarten program at Redding
Elementary School. On August 5, 1997, a Planning and Placement team (“PPT”) meeting
convened to plan for the 1997-98 school year. The Redding Board of Education decided to place
Lindsey at the St. Vincent’s Special Needs Center (“SNC”) in Trumbull, Connecticut. Pursuant
to the IDEA, Plaintiff appealed this placement and other aspects of his Individualized Education
Plan (“IEP”) in Connecticut Department of Education due process hearings. Lindsey’s
placement in the Redding Elementary School was maintained under the stay-put provisions of the
IDEA or, alternatively, the Local Educational Agency (“LEA”) elected not to implement it.
Linsdey was therefore never placed in the SNC.
Plaintiff appealed the LEA’s decision to a hearing officer, who dismissed her appeal and
affirmed the LEA’s proposed placement at the Special Needs Center. Plaintiff then appealed to
this Court in an attempt to maintain Lindsey’s current placement in Redding Elementary School
and to prevent the Special Needs Center placement as proposed by the LEA. This Court issued
two decisions resolving cross-motions for summary judgment. In both rulings, the Court entered
summary judgment for Defendants, except that the Court granted Plaintiff summary judgment on
her claims that due process hearings decisions were not timely issued. As a result of these two
decisions, the only claim that remained for trial was Plaintiff’s retaliation claim against the
Redding Defendants. Following a bench trial and a memorandum of decision in which the Court
concluded that Plaintiff had failed to carry her burden on the claim of retaliation in violation of
section 504 of the Rehabilitation Act, 29 U.S.C. § 794, this Court entered final judgment in
Defendants’ favor on February 13, 2003.
On February 2, 2005, the United States Court of Appeals for the Second Circuit affirmed
in part, reversed in part, vacated and remanded in part. More specifically, the court concluded
that Plaintiff’s federal challenges to the never-implemented 1997-98 proposal and the review
limitations imposed by now-repealed section 10-76h(a)(1) of the Connecticut General Statutes no
longer presented live controversies. Accordingly, the court vacated this Court’s ruling in favor of
Defendants and remanded it to dismiss Plaintiff’s claims as moot.
The court further concluded that Plaintiff’s challenge to the third hearing officer’s refusal
to re-hear claims already decided by the first hearing officer was without merit, and therefore
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affirmed this Court’s judgment in Defendants’ favor on this issue.
Finally, the court concluded that the broad language of 20 U.S.C. § 1415(b)(6) accords
administrative hearing officers jurisdiction to review safety challenges to IEPs where such
challenges relate to a disabled child’s educational placement or the provision of a free
appropriate public education plan. To the extent that this Court ruled otherwise, the court
reversed solely that part of the judgment and remanded the case with instructions that this Court
enter a declaratory judgment in favor of Plaintiff providing that a hearing officer possesses
jurisdiction to consider Plaintiff’s safety concerns in connection with a proposed IEP.
II. Standard
The IDEA provides that attorney’s fees may be awarded to prevailing parties if the fees
are “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) (2005). The Supreme Court
has explained that for a plaintiff to successfully claim prevailing party status, he must
demonstrate that: (1) he obtained relief on a significant claim in the litigation; (2) such relief
effected a material alteration in his legal relationship with the defendant; and (3) the alteration is
not merely technical or de minimis in nature. Texas State Teachers Ass'n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 791-93, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989). “Thus, at a minimum, to
be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point
to a resolution of the dispute which changes the legal relationship between itself and the
defendant.” Id. at 792. A "prevailing party" has succeeded "on any significant issue in litigation
which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby, 506
U.S. 103, 109, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992).
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In Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health and Human
Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), the United States Supreme
Court explained that to be a prevailing party, one must either secure a judgment on the merits or
be a party to a settlement agreement that is expressly enforced by the court through a consent
decree. Id. at 1840. Although Buckhannon specifically addressed the fee-shifting provisions of
the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12205, and the Fair Housing
Amendments Act of 1988 ("FHAA"), 42 U.S.C. § 3613(c)(2), the Second Circuit has concluded
that “it is clear that Congress intended ‘prevailing party’ under the IDEA to have the same
meaning as ‘prevailing party’ under § 1988.” See J.C. v. Reg'l Sch. Dist. 10, 278 F.3d 119, 123-
24 (2d Cir. 2002).
III. Discussion
A. Prevailing Party
Plaintiff moves for attorney’s fees and costs on the grounds that she is a prevailing party
as a result of this Court’s grant of summary judgment on her claims of untimely due process
hearings decisions and the Second Circuit’s reversal of this Court’s affirmation of the Second
Hearing Officer’s conclusion that “a special education hearing officer lacks the jurisdiction to
investigate safety complaints.” These claims are addressed in turn.
i. The Second Circuit’s Decision
Plaintiff argues that the Second Circuit’s ruling and subsequent declaratory judgment
materially altered the legal relationship between the parties and, thus, renders her a prevailing
party. In support of this proposition, Plaintiff indicates that she filed a request for due
process/mediation with the State Department of Education on October 27, 2003, and that the
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rulings of both this Court and the Second Circuit have altered the time and manner in which
Defendants must address and process her request. Both the State Defendants1 and the Redding
Defendants2 counter that the Second Circuit’s decision, which reversed this Court’s decision
regarding jurisdiction to consider safety measures and directed this Court to enter a declaratory
ruling in Plaintiff’s favor, is insufficient to render Plaintiff a “prevailing party” for purposes of
recovering attorneys fees. In support of this proposition, they point to the following language
from the Second Circuit’s decision.
In so doing, we recognize that because the 1997-1998 [Individualized Education Plan] was never implemented, it would serve no purpose for the district court to remand this matter to the state education agency for a further due process hearing with respect to safety concerns as to that particular education plan. Instead, on remand, the district court should grant declaratory judgment in favor of Lillbask on the jurisdictional issue to ensure that defendants understand that safety concerns may be considered in the development and review of future IEPs for Lindsey.
Lillbask v. State of Connecticut Dep’t of Educ., 397 F.3d 77, 94 (2005).
Defendants argue that the Second Circuit’s decision did not impose any affirmative
requirements upon them with regard to the 1997-98 school year, or in future years. They argue,
rather, that the Second Circuit merely advised them that in future cases raising safety concerns
and a request for a due process hearing, a special education due process hearing officer appointed
by the State Department of Education would have jurisdiction under the IDEA to consider safety
1 The State Defendants are Theodore S. Sergi, Commissioner, State Department of Education, Connecticut State Board of Education, and Mary Gelfman, Hearing Officer. The State Defendants are also known collectively as the State Educational Agency. For purposes of this ruling, the State Defendants may also be referred to as “the State.” 2 The Redding Defendants consist of the Redding Board of Education and Kenneth Freeston, who comprised Lindsey’s Local Educational Agency.
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issues raised by the parent, as long as the safety issues relate to the identification, evaluation, or
educational placement of the child, or the provision of a free appropriate public education to such
child. Defendants argue further that this ruling did not alter their legal relationship with Plaintiff
and that, as a result of the permissive language used by the Second Circuit–that “safety concerns
may be considered,”–safety issues may, but not must, be considered.
Plaintiff’s reference to actions taken subsequent to this Court’s previous decision, or
before the Second Circuit’s decision, are not persuasive in assessing whether the decision
materially altered the legal relationship of the parties. The fact remains, however, that the
Second Circuit directed this Court to enter a declaratory judgment “to ensure that defendants
understand that safety concerns may be considered in the development and review of future IEPs
for Lindsey.” Although the Second Circuit was aware, that for purposes of the 1997-98 IEP, the
issue was moot, it explicitly intended to ensure the appropriate consideration of safety issues in,
not only any future case but, more specifically, “future IEPs for Lindsey.” Plaintiff asserted a
variety of claims against Defendants in this case, and the Court does not consider the issue of
jurisdiction to consider safety concerns as having any less significance than Plaintiff’s other
claims. The legal relationship between the parties has been materially altered because, as a result
of the declaratory judgment, hearing officers may, and must if raised and relevant, consider safety
concerns. Plaintiff has therefore achieved some of the benefits sought with respect to the
jurisdictional claim. Accordingly, the Court concludes that Plaintiff is a prevailing party for
purposes of recovering attorney’s fees.
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ii. The Timeliness of Plaintiff’s Due Process Hearing Decisions
Plaintiff also argues that she is a prevailing party as a result of this Court’s grant of
summary judgment on her claims that while conducting three due process hearings the State
violated the IDEA and section 10-76h(b) of the Connecticut General Statutes. The State
counters, as it did on the motion for summary judgment, that the hearings were “marked by
dozens of extensions and continuances,” the majority of which Plaintiff had requested. Lillbask
v. Sergi, 117 F. Supp. 2d 182, 189 (D. Conn. 2000). The State also argues that Plaintiff received
only technical–but not practical–relief because the Court based its decision on the State’s failure
to submit a statement of material facts, not on the merits of Plaintiff’s claim. The State argues
that Plaintiff is therefore not a prevailing party because the Court did not provide her with any
relief on those claims and that no aspect of the relationship between Plaintiff and the State
changed as a result of the judgment.
The Court’s grant of summary judgment on Plaintiff’s timeliness claims was not
predicated solely upon the State’s failure to submit a statement of material facts. In fact, this
Court previously explained that the State’s failure to proffer evidence justifying the hearings’
length, coupled with its failure to oppose or contradict Plaintiff’s assertions on the timeliness
issue, precluded a determination that the time taken was reasonable. See Lillbask v. Sergi, 193 F.
Supp. 2d 503, 511 (D. Conn. 2002). The Court will not, on this motion for attorney’s fees and
costs, relitigate the merits of the case.
An examination of Plaintiff’s Complaint, on balance, reveals that she lost on far more
issues than those on which she “prevailed.” More specifically, this Court granted Defendants’
motion for summary judgment with respect to Plaintiff’s claims that (1) federal law preempted
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various procedural issues refined in state law, (2) the hearing officer’s decisions violated the
IDEA, related state statutes and regulations, section 504 of the Rehabilitation Act, and the due
process and equal protection clauses of the Fourteenth Amendment and the Connecticut
Constitution, (3) her fundamental rights to due process were violated, (4) the decision in Case
No. 97-231 violated section 504 of the Rehabilitation Act, and the due process and equal
protection clauses of the Fourteenth Amendment and the Connecticut Constitution, and (5) IDEA
preempted Connecticut Public Act 95-237 on the issue of administrative exhaustion. The Court
concludes, however, that the Court’s grant of summary judgment with respect to the timeliness
claims resulted in Plaintiff’s “prevailing” for purposes of recovering attorney’s fees. Here, as
with the jurisdictional claim, the Court will not decrease the significance of Plaintiff’s claim
regarding the timeliness of due process hearings decisions or conclude that the resolution of
those issues in her favor was merely technical or de minimis. Furthermore, through its ruling, the
Court has reaffirmed the importance of timely compliance with the statutory deadline regarding
the timely issuance of decisions, thereby providing Plaintiff with some of the benefits sought in
bringing the suit.
B. Calculation of Fees
The Court utilizes a lodestar figure when calculating the reasonable fee to be awarded to a
prevailing IDEA plaintiff. The lodestar figure is determined “by multiplying the number of hours
reasonably expended on the litigation . . . by a reasonable hourly rate." G.M. by & Through R.F.
v. New Britain Bd. of Educ., 173 F.3d 77, 84 (2d Cir. 1999) (quoting Blanchard v. Bergeron, 489
U.S. 87, 94, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989)). Before determining the appropriate
number of hours for which to compensate Plaintiff’s counsel, the Court considers the appropriate
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hourly fee. Fee applicants must "produce satisfactory evidence -- in addition to the attorney's
own affidavits -- that the requested rates are in line with those prevailing in the community for
similar lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson,
465 U.S. 886, 895-96 n.11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). A "district court has wide
discretion in determining the amount of attorneys' fees to award.” Grant v. Martinez, 973 F.2d
96, 99 (2d Cir. 1992). "'The most critical factor' in determining the reasonableness of a fee award
'is the degree of success obtained.'" Farrar v. Hobby, 506 U.S. at 114(quoting Hensley v.
Eckerhart, 461 U.S. 424, 436, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).
i. Hourly Rate
Plaintiff argues that $275 per hour is a reasonable rate for the work of Attorney
Zimberlin3 in this case. Attorney Zimberlin, in addition to attaching her own affidavit regarding
her education, experience, and the prevailing rate for similar work, attached affidavits from two
attorneys in support of this hourly rate calculation. Attorney Zimberlin’s proposed hourly rate,
according to Defendants, is not only unreasonable, but has also increased $75 (up from $200)
from the time Plaintiff first filed the motion for attorney’s fees and costs on March 11, 2003,
3 Attorney Arthur Allen Smith also seeks attorney’s fees in connection with his representation of Plaintiff in the exhaustion of her administrative remedies below. Attorney Smith requests a $200 hourly fee and claims 356.20 hours from time records beginning January 31, 1997. In addition, he states that he has redacted over 1000 hours. Attorney Smith’s billing record contains line entries with brief descriptions similar to those proffered by Attorney Zimberlin. Although Attorney Smith seeks reimbursement for services beginning in 1997 and through March 2005, he has failed to establish that his request for fees relates to issues that Plaintiff prevailed upon at trial. Furthermore, roughly two-thirds of the entries relate solely to telephone conferences with Attorney Zimberlin from June 1998 through March 2005. Accordingly, the Court concludes that Attorney Smith is not entitled to an award of attorney’s fees.
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which this Court denied without prejudice. Defendant also point to the fact that since Plaintiff’s
2003 filing, Attorney Zimberlin is seeking compensation for an additional 139.95 hours.
Attorney Zimberlin states in her affidavit that she has twenty-four years of civil litigation
experience and has been practicing special education law since 1994. She also provided
competent counsel to Plaintiff in this case, which is evidenced by the fact that she prevailed in
advancing at least some of Plaintiff’s claims. Defendants point to cases in which courts have
deemed excessive an hourly award of $275, while Plaintiff has pointed to cases upholding such
awards when experienced counsel provided competent representation.
The Court may consider the extent to which Plaintiff prevailed when considering an
appropriate fee award and, as discussed above, Plaintiff prevailed in this case on far fewer claims
than those on which she was denied relief. The Court concludes, based not only upon Plaintiff’s
experience, but also upon the affidavits of attorneys Ann Blanchard and Lawrence Berliner in
support of Ms. Zimberlin’s hourly rate, that an award of $200 is appropriate in this case.
ii. Total Number of Hours
Plaintiff alleges that she has spent 1,737.90 hours working on the case, but has requested
compensation for only 713.95 as specific to those claims on which she prevailed. Attorney
Zimberlin has proffered affidavits in support of this demand, as well as a detailed billing record
listing the amount of time spent working on the case, including researching issues related to the
case and drafting pleadings and memoranda. The billing records, which date from 1997 through
2005, consist of fifty-two pages of entries indicating the work performed and the amount of time
billed therefor.
The State argues that the number of hours alleged to have been spent working on those
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issues on which she prevailed is both unreasonable and unsubstantiated. According to the State,
using even a generous standard, only 110.35 hours of Attorney Zimberlin’s records have a trace
connection to the State. The State argues further that another 80.10 hours are not exclusively
related to the State Defendants’ issues, if at all. Finally, the State argues that Plaintiff’s counsel
should be awarded no more than $2,400. The State derived this figure by multiplying four hours
for each of the three hearings on which this Court concluded the State failed to provide a timely
due process hearing decision, by an hourly rate of $200. The State contends that Plaintiff was
responsible for the delay and that, if Plaintiff had sought to enforce the consent decree issued in
Barbara R., a short proceeding could have resolved the issue.
As this case began in 1997 and has survived in some form or another until 2006, the
Court will not speculate as to how quickly the case may have been resolved had Plaintiff many
years ago chosen a different course of action. Plaintiff’s counsel has redacted her billable time
for this case to more accurately reflect the time spent working on issues on which she ultimately
prevailed. The State’s assertion that no more than 190 hours are remotely related to the issues
pursued in their case is unavailing, as in their memorandum they specifically dispute only fifteen
hours worth of entries out of the more than seven-hundred requested. The remainder of the
State’s response consisted of unsubstantiated strike outs of counsel’s entries. Although the Court
agrees with Defendants that some entries are likely not specifically related to counsel’s pursuit of
the claims against them on which she prevailed, the State has specifically disputed relatively few
hours.
The Redding Defendants’ arguments are equally unpersuasive. They claim that Plaintiff
has failed to provide a detailed explanation as to how the numerous fee entries relate to the single
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issue of whether the hearing officer in the second due process hearing had jurisdiction to consider
safety issues. Their claim that counsel’s records are vague is bereft of reference to any specific
entries.
The Court agrees with Defendants that many of counsel’s entries do not delineate the
exact claim being pursued. Notwithstanding the detailed listing proffered, it remains difficult to
parse through the brief entries to discern with any reliable accuracy exactly what specific legal
claims were being pursued at any particular time. The majority of the entries list activity that
could very well have addressed facts or issues so central to the underlying claims that it is
impossible to separate them entirely.
The Redding Defendants suggested that an across-the-board reduction by some
percentage is appropriate. The Court concludes, however, that a lump sum award, while
achieving a similar result, is appropriate in this case due to the myriad entries that fail to
explicitly provide a connection to those claims on which Plaintiff prevailed. The Court has
already concluded that, although a prevailing party, Plaintiff lost far more claims than those won
and, thus, the award should be adjusted accordingly. In light of this ratio, coupled with the
difficulty in discerning the billing entries particularly relevant to the discrete claims on which
Plaintiff prevailed, the court concludes that an award compensating counsel for 300 hours of
work is appropriate, for a total of $60,000.
C. Apportionment of Liability
When determining the appropriate apportionment of liability for purposes of awarding
attorney’s fees and costs, courts may consider, among other things, the relative culpability of the
parties and the proportion of time spent litigating against each defendant. See Koster v. Perales,
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903 F.2d 131 , 139 (2d Cir. 1990). “[T]he district court may allocate the fee award between the
responsible parties, setting the percentage for which each is liable where the claims against the
defendants are separate and distinct or where culpability is significantly unequal, Crosby v.
Bowling, 683 F.2d 1068, 1075 (7th Cir. 1982), or it may hold the responsible parties jointly and
severally liable for the fee award.” Id.
Plaintiff’s appeal to the Second Circuit resulted in her status as a prevailing party with
respect to a claim alleged against both the State and Redding Defendants. Furthermore, Plaintiff
prevailed on summary judgment against the State Defendants with respect to the timeliness of
due process hearings decisions. As discussed above, Defendants have specifically challenged
only a limited number of entries in counsel’s billing record. Absent particular disputes with
respect to individual entries throughout counsel’s billing record, the Court finds appropriate an
allocation of liability in proportion to the claims on which Plaintiff prevailed against each
Defendant. As to the State Defendants, Plaintiff prevailed on both the timeliness claim and the
jurisdictional claim. As to the Redding Defendants, however, Plaintiff prevailed only as to the
jurisdictional claim. Accordingly, the Court finds the State Defendants liable for two-thirds of
the fees and costs awarded. The Redding Defendants shall be responsible for the remaining one-
third.
D. Costs
Plaintiff’s request for reimbursement of costs for the filing fee and service or process is
hereby granted. Plaintiff shall file with the Clerk a verified bill of costs.
IV. Conclusion
For the reasons provided above, Plaintiff’s motion for attorney’s fees is granted in part.
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The State Defendants are responsible for $40,000 of the award, and the Redding Defendants are
responsible for $20,000.
SO ORDERED.
Dated at New Haven, Connecticut, March 17 , 2006.
/s/ Peter C. Dorsey United States District Judge
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