reimbursement for all costs associated with Jeffrey's attendance
at Pine Ridge. Pursuant to that demand, the District appointed
Kenneth Stewart, an Impartial Hearing Officer, from the
rotational list of Hearing Officers maintained by the New York
State Education Department.
The due process hearing was held on January 24, 2000, February
24, 2000, and February 28, 2000, during which Lee Kapleau
testified as the only witness. At all times during the hearings,
Ms. Arons served as the spokesperson and advocate for the
After the hearings, the District agreed that the District's CSE
would reconsider its recommendation for Jeffrey's placement; if
it determined that Jeffrey required a residential placement, the
District would attempt to place Jeffrey in a New York State
approved school. If no such placement was available, the parties
agreed that an application would be made by the District to the
State Education Department for emergency approval of Pine Ridge
as a placement for Jeffrey, effective, retroactively, to the
beginning of the 1999-2000 school year.
On March 13, 2000, the CSE met, and with Jeffrey and Mrs. S
present, recommended that Jeffrey be placed in a residential
school. The State Education Department approved Pine Ridge as an
emergency residential placement on March 24, 2000.
On May 15, 2000, Arons wrote to the Impartial Hearing Officer,
advising him that the case had been settled, that the parent had
agreed to drop her compensatory claim, that the matter had been
"satisfactorily resolved," and that his services as a Hearing
Officer were no longer needed. The defendant paid the full
tuition, room and board for Jeffrey at Pine Ridge for the
1999-2000 school year. Pine Ridge reimbursed plaintiffs for
payments that Mrs. S had made to Pine Ridge prior to payment by
the District for the entire school year.
Plaintiffs now seek reimbursement for "consultant services"
provided by Arons, psychotherapy provided by Dr. Starisevsky,
tutoring provided by Lynn Giacomarra, and other expenses. They
move for summary judgment on the ground that as prevailing
parties under IDEA, the District is obligated to reimburse
plaintiffs for their fees incurred in challenging Jeffrey's IEP.
Defendants cross-move for summary judgment, alleging that
"consultants' fees" are not included under the IDEA; that
plaintiff failed to exhaust her administrative remedies; and that
the claims are time-barred. Even if the plaintiff were to
overcome those procedural hurdles, defendant argues that under
the U.S. Supreme Court's recent decision in Buckhannon v. West
Virginia, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001),
prevailing party fees are not available for a party that has
failed to secure a judgment on the merits.
For the reasons stated below, plaintiff's motion for summary
judgment is denied, and defendant's cross-motion for summary
judgment is granted.
Summary judgment is appropriate where there are no genuine
issues of material fact and the movant 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, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). A genuine issue for trial exists if, based on the
record as a whole, a reasonable jury could find in favor of the
non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
In making its determination, the court must resolve
all ambiguities and draw all reasonable inferences in favor of
the non-movant. See id. at 255, 106 S.Ct. 2505. To defeat
summary judgment, the non-moving party must go beyond the
pleadings and "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). When opposing a motion for summary
judgment, it is not sufficient for the non-moving party to
present evidence that is conclusory or speculative, with no basis
in fact. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
While Plaintiffs need not produce direct evidence of an alleged
civil rights violation, they must be able to produce evidence, in
admissible form, that is more than surmise and speculation which
is based on their own subjective beliefs. See Matsushita, 475
U.S. at 576, 106 S.Ct. 1348.
Plaintiffs seek recovery under the IDEA for reimbursement of
"consultants fees" paid to Ms. Arons. The IDEA is one of a number
of statutes that provide a court's authority to award
reimbursement of attorney's fees to a prevailing party. It
states: "In any action or proceeding brought under this section,
the court, in its discretion, may award reasonable attorneys'
fees as part of the costs to the parents of a child with a
disability who is the prevailing party." IDEA,
20 U.S.C. § 1415(i)(3)(B). The parties dispute whether plaintiffs meet the
definition of a prevailing party.
This year, the Untied States Supreme Court set forth the
standard of who may be considered a "prevailing party" in a civil
rights lawsuit. See Buckhannon v. West Virginia Dep't of
Health, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).
The issue in Buckhannon was whether the term "prevailing party"
includes a party that has failed to secure a judgment on the
merits or a court-ordered consent decree, but has nonetheless
achieved the desired result because the lawsuit brought about a
voluntary change in the defendant's conduct. Id. at ___, 121
S.Ct. 1835. The Court evaluated a claim for attorney's fees under
the Fair Housing Amendments Act of 1988, 102 Stat. § 1619,
42 U.S.C. § 3601 et. seq. and the Americans with Disabilities Act
of 1990(ADA), 104 Stat. § 327, 42 U.S.C. § 12101, et. seq. —
statutes which, like the IDEA, allow a court to grant, in its
discretion, a reasonable attorney's fee to a prevailing party.
Id. at 1839.
The Court denied the request for fees, reasoning that a
"prevailing party" is one who has been awarded some relief by a
court. Id. at 1838 (citing Hanrahan v. Hampton, 446 U.S. 754,
758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980)). Both judgments on
the merits and court-ordered consent decrees create a material
alteration of the parties' legal relationship and thus permit an
award. Id. at 1840. However, the Court rejected the "catalyst
theory," which would allow an award where there is no judicially
sanctioned change in the parties' legal relationship. Id. It
stated that "[a] defendant's voluntary change in conduct,
although perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit, lacks the necessary judicial imprimatur
on the change." Id.
There is nothing in Buckhannon to suggest — and plaintiffs do
not argue — that the opinion is limited to ADA and FHAA cases.
The Court refers to similar fee-shifting statutes in general
throughout the opinion. See id. (citing the Civil Rights Act of
1964, 78 Stat. 259, 42 U.S.C. § 2000e-5(k), the Voting Rights Act
Amendments of 1975, 89 Stat. 402, 42 U.S.C. § 19731(e), and the
Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641,
42 U.S.C. § 1988). See also Jose
v. Joliet Township H.S. Dist., 204, No. Civ. A. 01-4798, 2001
WL 1000734 (N.D.Ill. Aug.29, 2001) (concluding that
Buckhannon's "prevailing party" rules apply to the IDEA, and
other fee-shifting statutes). The fee-shifting rules of
Buckhannon apply with as much force to the IDEA as it does to
any of the other civil rights statutes cited in the opinion.
Plaintiffs' first argument is that, even under Buckhannon,
they can succeed on their claim because there was an alteration
of the legal relationship between the parties. They base the
argument on the fact that (1) the District reconvened a CSE to
issue another IEP classifying Jeffrey as disabled and
recommending his placement at Pine Ridge; (2) the administrative
hearing was adjourned when the CSE issued its revised finding,
and that the District never formalized and wound up the hearing
that was started (despite Ms. Arons' alleged oral and written
requests); and (3) under the statutory scheme of the IDEA, Mrs. S
and Jeffrey could not have sought or received their fees and
costs from the administrative hearing officer — only by
commencing an action before this Court. They request that this
court declare plaintiffs to be prevailing parties because they
secured precisely the relief they sought.
Defendant argues that plaintiffs are not prevailing parties
because the parties entered into a private settlement of the
matters involved in the hearing before Mr. Stewart with the
expectation that it was in full settlement of plaintiff's claims.
Defendant is correct.
By letter of May 15, 2000, Ms. Arons wrote to Hearing Officer
In reviewing the file of the [Jeffrey S.] case, I
find that there is no formal closing of the record.
Therefore, let this letter serve to formalize the
settlement reached in this case.
Following the last day of hearing [sic], the parties
met at a CSE meeting. At that time an IEP was
developed for placement at the Pine Ridge School
retroactive to September 1999. The parent agreed to
drop her compensatory claim in exchange for
prevailing on the prospective relief sought. As a
result, the hearing was not reconvened.
(Def's Notice of Motion for Summ. J. at Ex. G.).
The Hearing Officer Stewart wrote to Carl Wanderman, attorney
for the District, in a letter dated May 30, 2000, stating, in
I have just been notified by the Parent Information
Center that the above captioned matter [Jeffrey S.]
has been satisfactorily resolved and therefore my
services will not be needed further.
I am enclosing herewith a statement of my Impartial
Hearing Officer services. Kindly forward it to the
appropriate School District office.
(Id. at Ex. H.).