The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This litigation involves a challenge to the impartiality of hearing officers reviewing school district decisions in relation to educational planning for handicapped children, brought by a parent under 20 U.S.C. 1415, New York Education Law 4404 and 8 NYCRR 200.5. Plaintiff Edward Joseph Heldman acting on behalf of his child T.H. alleged that the hearing officer selection system was inherently biased because some officers were beholden to the school boards involved, which might have to pay for any additional educational effort recommended by the hearing officer or resulting from the officer's findings. The suit was initially dismissed for lack of standing because no concrete adverse impact on the child had been shown. Heldman v. Sobol, 962 F.2d 148 (2d Cir 1992) reversed this dismissal and held that potential impact of an overall state policy sufficed to confer standing.
On July 21, 1993, the New York State Legislature enacted L 1993 ch 403, amending Education Law 4404 to create a new rotation system for hearing officers, and mandate a plan to be adopted by July 1, 1996 precluding school board employees from serving as hearing officers until two years after leaving such employment, and to establish procedures for dismissal of hearing officers and maximum rates of pay for such officers.
Plaintiff's son T.H. reached age 21 on September 28, 1993 and would not appear to be covered any longer by Education Law 3202 or 4401. The effect of this on the current litigation need not, however, be considered. Plaintiff, who had moved for summary judgment, has determined
that his suit had achieved its principal objective - the alteration of an impermissible state adjudicatory mechanism - and agreed to withdraw his motion for summary judgment.
Plaintiff now seeks attorney's fees and litigation costs; defendant resists that application and continues to pursue a cross-motion for summary judgment on the merits and based on mootness.
Heldman v. Sobol, 962 F.2d 148 (2d Cir 1992), by upholding plaintiff's standing, made plaintiff's challenge to the impartiality of hearing officers significant for the State and its Education Department. This was reflected in a memorandum in support of the 1993 legislation by the Division of the Budget, submitted to the Governor urging his signature of A.7189-A, stating in part:
Litigation is currently pending in the Second Circuit which questions the ability of a hearing officer to be impartial when selected and employed by the school district.
The Budget Division memorandum shows that plaintiff contributed to the enactment of the 1993 legislation sufficiently to qualify as a prevailing party entitled to reasonable attorneys' fees and litigation costs under 20 U.S.C. 1415(e)(4)(B), a statute analogous to the Civil Rights Attorney's Fee Act, 42 U.S.C. 1988.
A plaintiff is entitled to fees if the litigation contributed to "a resolution of the dispute which changes the legal relationship" involved, under Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 792, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989); see Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Koster v. Perales, 903 F.2d 131, 134 (2d Cir 1990). It is enough if a suit is a "catalytic" factor in attaining that result, even if not a ...