UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID AND JENNIFER
eet” PARDINI, No. 2:03-cv-0725 Plaintiffs, Judge Thomas J. Hardiman VS. Magistrate Judge Amy Reynolds Hay
ALLEGHENY INTERMEDIATE UNIT, Defendant.
MEMORANDUM OPINION
Now pending before the Court is Plaintiffs' Notice of Appeal
From and Objections to Memorandum Order of August 18, 2006
(Memorandum) entered by United States Magistrate Judge Amy
Reynolds Hay. In her Memorandum, Magistrate Judge Hay denied
Plaintiffs' motion to exclude from evidence an Individualized
Family Services Plan (IFSP) and held that Plaintiffs are not
entitled to attorney's fees because David Pardini, Esq. brought
this case on behalf of himself, his wife Jennifer, and their
Gaughter Georgia. Magistrate Judge Hay's Memorandum is thorough,
concise, and the Court agrees with its analysis and conclusions.
This brief Memorandum Opinion is intended, out of deference to
the Court of Appeals, to frame the issue in general terms to
assist the appellate review that inevitably will follow. Poke eee et ON pred ab eyo fa ey foyer RNa eww tf a Nasiionant Sf Ehlee ATPtd Ory? Darn 8 NE not 4A ad pet) ." a) copes td expe wevlews roe he PEP Re ASH ARLTee eke ER LS seeds PPAR AA Rees oye: AS a aha a bPe" CARRAR edi A fe go A Me
First, it must be noted that the Court of Appeals, in
reversing this Court,’ held that "the stay-put provision of the
IDEA, 20 U.S.C. §1415(j), required Georgia to continue to receive
conductive education until the dispute over its appropriateness
for inclusion in her IEP was resolved." Pardini v. Allegheny
Intermediate Unit, 420 F.3d 181, 192 (3d Cir. 2005). Although
the Court of Appeals was not presented with the question of
Plaintiffs' entitlement to attorneys' fees, it stated ina
footnote: "We do not think that Mr. Pardini is precluded from
recovering reasonable attorneys' fees otherwise provided for
under the IDEA merely because he is seeking reimbursement for his
own expenses while representing his daughter. In Zucker v.
Westinghouse, 374 F.3d 221, 227 (3d Cir. 2004) we recognized
that, absent an expression of congressional intent to the
contrary, a plaintiff's entitlement to attorneys' fees is not
eliminated merely because he/she was pro se counsel." Pardini,
420 F.3d at 184 n.4.
As Magistrate Judge Hay noted, however, the Court of Appeals
in Woodside v. School Dist. of Philadelphia, 248 F.3d 129 (3d
Cir. 2001), held "that an attorney-parent cannot receive attorney
fees for work representing his minor child in proceedings under
* This case was originally assigned to, and decided by, the Honorable Arthur J. Schwab. Upon remand from the Court of Appeals, Judge Schwab recused himself on October 11, 2006 and the case was reassigned on October 16, 2006 to the undersigned.
2 the IDEA." Id. at 131. In his objections now pending, attorney
Pardini correctly notes that in Woodside the attorney/father
sought fees for representing his minor child in administrative
proceedings whereas here Pardini seeks fees earned as the
prevailing party in federal court. At the same time, however,
the attorney in Woodside also sought fees for the federal court
action and the holding quoted above is not limited to recovery of
fees for legal work at administrative proceedings.
In light of the foregoing, it is understandable that Pardini
would assert his entitlement to attorney's fees and that the
Allegheny Intermediate Unit would deny any obligation to pay
those fees. The Court of Appeals undoubtedly will have the
opportunity to answer this question definitively in this case.
Based on the equivocal controlling law, however, this Court finds
that the Third Circuit's opinion in Woodside -- wherein the issue
of attorneys' fees was squarely joined -- controls the decision
here. Conversely, the dicta in Pardini -- which do not reference
the Third Circuit's prior decision in Woodside -- is not
controlling. In reaching this conclusion, the Court is not
unmindful of its obligation to adhere faithfully to decisions of
the Court of Appeals. Nevertheless, the question presented
appears to present a Hobson's choice in this regard, which is the
principal reason for this supplemental explication of the Court’s
agreement with Magistrate Judge Hay's well-reasoned opinion. - aw Ay age 55 — ~ or So Ta PN eR Oe a
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For the foregoing reasons, the Court hereby ADOPTS the
Report and Recommendation of Magistrate Judge Hay as supplemented
herein as the Opinion of the Court and AFFIRMS the Memorandum
Order of August 18, 2006.
BY THE COURT:
s Vorclo FlU.a men Thomas M. Hardiman United States District Judge
Dated: January 12, 2007