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September 26, 2001


The opinion of the court was delivered by: David G. Larimer, Cheif United States District Judge.


On December 29, 1999, this court issued a Decision and Order granting a preliminary injunction in favor of the plaintiffs in this action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., directing defendant, Corning-Painted Post Area School District ("the District"), to provide plaintiff Aaron Sabatini ("Aaron") with a free appropriate public education ("FAPE"), as required by IDEA. Sabatini v. Corning-Painted Post Area Sch. Dist., 78 F. Supp.2d 138 (W.D.N.Y. 1999). The parties subsequently entered into a settlement agreement, which provided, inter alia, that the District would remit $22,000 on Aaron's behalf to Mitchell College ("Mitchell") for tuition and costs during the 2000-01 academic year, and that upon Aaron's successful completion of the Fall 2000 and Spring 2001 semesters at Mitchell, the District would issue him a high school diploma. The settlement agreement was incorporated into a Consent Order dismissing the action on June 21, 2000.

Pursuant to the terms of the settlement agreement, which reserved to plaintiffs (Aaron and his mother Sharon Sabatini) the right to seek reasonable attorney's fees, plaintiffs have now moved for an award of attorney's fees and costs in the amount of $58,937.65, under 20 U.S.C. § 1415(i)(3)(B), which 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 the parents of a child with a disability who is the prevailing party." The District acknowledges that as prevailing parties, plaintiffs are entitled to an award of fees, but opposes certain aspects and portions of plaintiffs' request.


I. "Rates Prevailing in the Community"

The first area of dispute concerns the hourly rates sought by plaintiffs' attorneys. The attorneys in question, all of whom are or at the relevant times were with the law firm of Bouvier, O'Connor, in Buffalo, New York, are: Bruce A. Goldstein, Esq., a partner; Arthur H. Ackerhalt, Esq., also a partner; Jay C. Pletcher, an associate; and Linda Hassberg, Esq.*fn1 The hourly rates requested are as follows:

Attorney 1998 1999 2000
Goldstein $225 $230 $235
Ackerhalt n/a $185 $195
Pletcher $120 $135 $150
Hassberg n/a $135 n/a

In addition, plaintiffs seek fees for work performed by a paralegal, at $65 per hour in 1998 and 1999, and $70 per hour in 2000. Rates for travel time are roughly half of those for legal work.

Defendant contends that plaintiffs have failed to provide any evidence, other than their own bills for services, of the reasonableness of the rates sought. In the absence of such evidence, defendant requests that the court calculate plaintiffs' fee award based on the rates customarily charged by defendant's counsel's firm, Sayles & Evans of Elmira, New York, for education-related work in the Southern Tier region of New York State. Those rates range from $85 per hour for associates to $150 per hour for partners.

In determining a proper fee award under IDEA, courts should follow the "lodestar" approach, whereby the fee is derived "by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." G.M. ex rel. 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 (1989)). What constitutes a reasonable rate is addressed in 20 U.S.C. § 1415(i)(3)(C), which provides that "[f]ees 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." The fee applicant bears the burden of establishing that the requested rates meet this standard. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (applying fee-shifting statute under Civil Rights Act, 42 U.S.C. § 1988)*fn2; P.G. v. Brick Township Bd. of Educ., 124 F. Supp.2d 251, 261 (D.N.J. 2000); S.D. v. Manville Bd. of Educ., 989 F. Supp. 649, 656 (D.N.J. 1998).

A threshold matter that must be addressed here is what constitutes the "community" referred to in the statute. Defendant suggests that the relevant community in this case is "Corning or the Southern Tier of New York," the geographical area in which this action arose. Defendant's Memorandum of Law at 5. Plaintiffs contend that the relevant community for determining a reasonable rate is the judicial district in which the trial court is located.

In addition, the Second Circuit has stated that if "special expertise of counsel from a . . . [different] district [was] required," the court may take into consideration rates prevailing from that other district. Cruz, 34 F.3d at 1159. In some cases, then, due to the complexity of the case or the specialized nature of the legal services required, it may have been reasonably necessary for the fee applicant to seek out-of-town counsel because there were no available attorneys possessing the requisite degree of experience or expertise in the plaintiff's own area. In such cases, the term "community" should be construed more broadly, and rates may be based on those prevailing in the attorney's own geographical area for lawyers of similar skill performing work of similar complexity. See, e.g., Mr. & Mrs. W v. Malito, No. 92-1102, 1993 WL 764591 *2 (C.D.Ill. Apr. 20, 1993) (since it was "clear that private special education lawyers are not generally available in this region or closer than Chicago, Illinois to advocate on behalf of the parents' position," plaintiffs were "not bound by local hourly rates when there is no suggestion that the choice of counsel [from Chicago] was improvident or counsels' billing rates were out of line with those charged by available counsel of similar expertise, otherwise similarly situated").

In the case at bar, plaintiff Sharon Sabatini states in an affidavit that prior to securing representation by Bouvier, O'Connor, she "contacted numerous attorneys in Corning, Elmira and their surrounding areas, but was unable to secure an attorney with experience in the area of special education law." Affidavit of Sharon M. Sabatini (Ex. M to Affidavit of Bruce A. Goldstein (Docket Item 31)) ¶ 4. She states that she also contacted an attorney in Rochester, but he told her that he no longer practiced special education law and that he knew of no one in the Rochester area who did. Id. ¶ 7. Mrs. Sabatini eventually contacted Bouvier, O'Connor, some of whose attorneys, including Goldstein, Ackerhalt and Pletcher, concentrate in the area of disability rights, including special education for children with disabilities. Sabatini Aff. ¶¶ 10, 11; Goldstein Aff. ¶ 3. Thus, even if the court were otherwise inclined to consider Corning and its environs to be the relevant community, plaintiff's inability to locate an attorney in that area with a suitable background in special education law would make it inappropriate to base an hourly rate on the rates prevailing in and around Corning.

Defendant also contends that, regardless of what "community" is considered, plaintiffs have not provided adequate proof that the rates that they seek are in fact considered reasonable within that community. The fee applicant "normally satisfies this burden by submitting the affidavits of other attorneys in the relevant legal community, attesting to the range of prevailing rates charged by attorneys with similar skill and experience." Brick Township, 124 F. Supp.2d at 261; accord Mr. and Mrs. B v. Weston Bd. of Educ., 34 F. Supp.2d 777, 782 (D.Conn. 1999); Manville, 989 F. Supp. at 656.

In their reply, plaintiffs have submitted affidavits of three attorneys (in addition to the affidavits of plaintiffs' attorneys themselves) in support of their motion. These affidavits are by: Melinda R. Saran, Esq., the Acting Associate Dean for Student Services at the University at Buffalo ("UB") Law School and a former clinical instructor and Supervising Attorney of the Special Education Law Clinic of the Legal Assistance Program at that school; Ronald M. Hager, Esq., a staff attorney in the Disability Rights Unit of Neighborhood Legal Services, Inc. in Buffalo; and H. Jeffrey Marcus, Esq., the current Supervising Attorney of the Special Education Law Clinic in Buffalo. Goldstein Aff. Exs. C, D and E. All of them state that they are familiar with Bouvier, O'Connor, and with the particular attorneys who represented plaintiffs in this action. All three also opine that the rates billed by plaintiffs' attorneys in this case are fair and reasonable in their community for the types of services performed here.

The affidavits of plaintiffs' attorneys, and their curricula vitae, indicate (and defendant does not appear to dispute) that they possess considerable experience and knowledge in the area of special education law. Goldstein has been an attorney since 1972, and has extensive experience litigating cases involving special education law and the rights of disabled persons. He is also the co-author of a treatise entitled Legal Rights of Persons with Disabilities — An Analysis of Federal Law, and for over a decade has taught a course at UB Law School entitled "Legal Rights of Persons with Disabilities." Goldstein Aff. Ex. A.

Ackerhalt obtained his Juris Doctor degree in 1973, and like Goldstein, he concentrates in special education law and related areas concerning the rights of persons with disabilities. Goldstein opines, and defendant has presented no evidence to the contrary, that he and Ackerhalt are "the two most experienced attorneys who concentrate in the private practice of special education law and the ...

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