United States District Court, Southern District of New York
July 22, 2003
PEARL MURPHY AND THEODORE MURPHY, PLAINTIFFS,
ARLINGTON CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, DEFENDANT.
The opinion of the court was delivered by: Charles Haight, District Judge
MEMORANDUM OPINION AND ORDER
The sole remaining issue in this action commenced under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400 et seq., concerns the entitlement of the plaintiffs, parents of a disabled child who successfully sued the defendant school district to recover their child's tuition at a private school during certain school years, to recover costs incurred for the services of an educational consultant and transportation incurred by plaintiffs during the pertinent times. Plaintiffs rely upon the fee-shifting provisions which the Act contains for the benefit of prevailing parties in actions commenced pursuant to its terms.
I. PROCEDURAL HISTORY
Familiarity with all prior opinions of this Court and the Court of Appeals is assumed. For present purposes, it is sufficient to state that plaintiffs Pearl Murphy and Theodore Murphy, the parents of Joseph Murphy, a "child with a disability" as that term is defined by the Act, 20 U.S.C. § 1401(3)(A), and enrolled at the Arlington High School, maintained by defendant Arlington Central School District Board of Education (the "District"), decided at the end of the 1997-1998 school year that the Arlington School was no longer an appropriate educational placement for Joseph, given his condition. Plaintiffs unilaterally withdrew Joseph from the Arlington School, and enrolled him for the 1998-1999 school year at the Kildonan School, a private school. At the same time, plaintiffs pursued the administrative remedies provided, as required by IDEA, with respect to such educational placements by the applicable state statute, N.Y.Educ.Law 4404 (McKinney 1999). Those proceedings eventually resulted in a decision dated July 7, 1999 by an impartial hearing officer ("IHO"), who concluded that the District's educational plan for Joseph for the 1998-1999 school year was inadequate to meet his special needs; that Kildonan was an appropriate placement; and that plaintiffs were entitled to reimbursement for Joseph's tuition at Kildonan and the costs of a private speech pathologist.*fn1 The District lodged an administrative appeal from that decision with the state review officer ("SRO"). While that appeal was pending before the SRO, plaintiffs commenced this action, first in the Northern District of New York, and subsequently transferred to this Court.
In an opinion dated March 1, 2000, Murphy v. Arlington Central School District Board of Education, 86 F. Supp.2d 354 (S.D.N.Y. 2000), this Court held that under the provisions of the IDEA, the District was obligated to reimburse plaintiffs for Joseph's tuition covering the period beginning on September 17, 1999 to date, and to continue to fund his tuition as long as Kildonan remained Joseph's current educational placement.*fn2 The District appealed. The Second Circuit affirmed this Court's decision. 297 F.3d 195 (2d Cir. 2002).
Plaintiffs now apply for an order directing the District to pay costs they incurred during the times in question. Specifically, plaintiffs seek to recover the fees of Marilyn Arons, an educational consultant, and mileage expenses plaintiffs incurred in transporting Joseph to and from Arons's office, the offices of neurologists and speech therapists, and administrative hearings. In a Memorandum and Order reported at 2003 WL 367872 (S.D.N.Y. Feb. 19, 2003), I directed the submission of further papers in connection with that application. Those submissions have been made, and the issue is now ripe for decision.
II. FACTUAL BACKGROUND
The public policy implemented by the IDEA is to assure that all children with disabilities receive a free public education appropriately designed to meet their particular learning needs. The District seeks to achieve that purpose through the vehicle of a Committee on Special Education ("CSE"), headed by Assistant Superintendent Barbara J. Donegan. "The primary mission of the CSE is to identify, locate, and evaluate all disabled children within the District's borders and develop individualized education programs ("IEP's") that address their educational needs." Donegan Aff. at I 2. A written IEP is mandated by the Act, and is prepared at a meeting between the child's teacher, a school representative qualified in special education, and the child's parents.
An IEP is not binding on the parents. The IDEA gives them the right to "present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child," 20 U.S.C. § 1415(b)(1)(E), with the concomitant right to "an impartial due process hearing" before the state educational agency, § 1415(b)(2).*fn3 The Act gives states the freedom to design a one or a two-tier review process. As the prior decisions in the case at bar reflect, New York opted for a two-tier system. Parents dissatisfied by the final administrative decision may file suit "in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." § 1415(e)(2).
According to the first certification of Marilyn Arons submitted on the present application, Arons "was asked by Pearl Murphy to help her son receive an appropriate education in October of 1997. . . . She originally asked that I serve as an educational consultant in order to have an IEP developed in accordance with his needs." Arons's certification of services rendered in this case indicates that she holds a master's degree. A 1998 Third Circuit decision states that Arons, the mother of two handicapped children and a New Jersey resident, "[a]s a professional educator . . . specializes in curriculum development for exceptional children," and "[a]s a lay advocate, she acts on behalf of parents of handicapped children at administrative hearings" conducted by New Jersey educational authorities. Arons v. New Jersey State Board of Education, 842 F.2d 58, 60 (3d Cir. 1988). Arons has subsequently extended her consulting and advocacy practices to New York families, as is demonstrated by J.S. v. Ramapo Central School District, 165 F. Supp.2d 570 (S.D.N.Y. 2001), Connors v. Mills, 34 F. Supp.2d 795 (N.D.N.Y. 1998), and the case at bar. She has also represented a family in Delaware. See Coale v. State Department of Education, 162 F. Supp.2d 316 (Del. 2001).
As noted, during the academic year 1997/1998 Joseph Murphy attended a District school. According to Arons's summary, she rendered her first services to plaintiffs on certain dates in November and December, 1997, when she reviewed Joseph's school history and records, developed a statement of current educational status and goals for an "IEP meeting," and prepared for, attended and participated in a CSE meeting. Arons's summary then states that on January 8, 1998 she was consulting with plaintiffs "re: placement of Joe at Kildonan," and the record in the case shows that plaintiffs unilaterally enrolled their son in the Kildonan School "prior to a scheduled meeting of the CSE held on July 30, 1998." Donegan Aff. at ¶ 9.
Plaintiffs paid Joseph's tuition at the Kildonan School for the academic year 1998/1999. By letter dated September 3, 1998, plaintiffs requested an impartial hearing to determine whether the District should be required under the Act to reimburse them for the 1998/1999 Kildonan tuition and for the costs of private speech therapy. Donegan Aff. at ¶ 10. After conducting a hearing, the IHO concluded held that the District had not afforded Joseph a free and appropriate public education, held that plaintiffs had appropriately placed Joseph in the Kildonan School, ordered the District to reimburse plaintiffs for the Kildonan 1998/1999 tuition, and further ordered the District to reimburse plaintiffs for the cost of private speech therapy incurred during the 1997/1998 academic year. The District appealed to the SRO by petition dated August 17, 1999, who in a ruling dated December 14, 1999 but effective as of September 17, 1999 sustained the IHO's decision to award plaintiffs reimbursement for the Kildonan tuition for the 1998/1999 academic year, but reversed the award of reimbursement for private speech therapy during the prior year. Donegan Aff. at ¶¶ 12, 14, 25-26.
During the pendency of the District's appeal to the SRO with respect to Joseph's placement during the 1998/1999 academic year, the 1999/2000 year approached, and on September 2, 1999 the District convened a CSE to consider placement for that year. See Murphy, 86 F. Supp.2d at 356. "An IEP was proposed placing Joseph back at Arlington High School. Plaintiffs did not accept this IEP and continued to enroll Joseph at Kildonan," funding the tuition for that academic year as well. Id. As noted in Part I, supra, plaintiffs commenced this action in August 1999. The ultimate decision reached by this Court, dated February 25, 2000 and subsequently affirmed by the Second Circuit, was that Kildonan School constituted Joseph's "current educational placement," a conclusion which under the Act's statutory scheme made the District "financially responsible for Joseph's tuition beginning from the effective date of the SRO decision, September 17, 1999, and going forward." Id. at 368. The economic effect of that ruling was to require the District to reimburse plaintiffs for the major portion of the 1999/2000 tuition at Kildonan School.*fn4 This Court has not been asked to make any further rulings with respect to the plaintiffs' rights and the District's obligations under the IDEA.
Arons's certification summarizes services she rendered to plaintiffs and their son Joseph from November 1, 1997 to and including July 19, 2002. Those services are allocated among five academic years: 1997/1998 (21.5 hours); 1998/1999 (40.25 hours); 1999/2000 (17.75 hours); 2000/2001 (45.75 hours); and 2001/2002 (21.5 hours). These allocations yield a total of 146.75 hours. Arons values her time at $200 an hour, and so the claim for her services is $29,350.*fn5
Plaintiffs do not by this application seek reimbursement for payment of this or any other amount to Arons. They are not in a position to do so because they have not paid Arons anything. In her certification Arons explains why that is so. She states that "[t]he attached bill for Joseph Murphy was made in accordance with my understanding of those areas for which the Second Circuit permits me to bill for services," and goes on to say that in view of plaintiff Pearl Murphy's "financial circumstances and the issues in her son's case as she understood them," and "[b]ecause of the unusual nature of the case, as well as the fragile state of her son's development, I agreed to take the case on a contingency." Arons continues:
A verbal contract was agreed upon in which the family
agreed to seek my fees from the Arlington School
District or a court of competent jurisdiction in the
event there was litigation and the family became the
prevailing party. I have never received payment for
any services provided since 1997. I have stayed with
the case because of my concern for the social,
emotional, academic and developmental welfare of
Joseph, a child I deemed to be at significant risk
without appropriate intervention.
The principal questions on this application are whether, in the circumstances of the case, the District is obligated by the IDEA to pay for Arons's services to the plaintiffs, and if so, in what amount.
A. Fee Shifting and Representation under the IDEA
At the pertinent times the IDEA provided in 20 U.S.C. § 1415(e)(4)(B):
In any action or proceeding brought under this
subsection, the court, in its discretion, may award
reasonable attorneys' fees as part of the costs to
the parents or guardian of a child or youth with a
disability who is the prevailing party.
With respect to representation of parties at an impartial due process hearing, the Act provided in § 1415(d)(1) that any party shall be accorded
the right to be accompanied and advised by counsel
and by individuals with special knowledge or training
with respect to the problems of children with
B. Court Decisions Involving Marilyn Arons
Arons does not hold a law degree. Accordingly, when she began representing parents of learning disabled children in IDEA-mandated impartial hearings before state educational agencies, she described herself as a "lay advocate." In Arons v. New Jersey State Board of Education, 842 F.2d 58 (3d Cir. 1988), Arons challenged a provision in the New Jersey Administrative Code that nonlawyers may not receive a fee for representing a party in administrative proceedings. She argued that she had "done work equal to that of an attorney within the State of New Jersey yet is denied equal pay for that equal work because she is not a member of the New Jersey Bar Association or a graduate of a law school." 842 F.2d at 60. The district court denied relief and the Third Circuit affirmed, reasoning that the provision in § 1415(d)(1) of the IDEA that a party "may be accompanied and advised by counsel and by individuals with special knowledge or training" (emphasis added) did not preempt the state administrative rule that only counsel could charge fees for their services. Id. at 62. The court of appeals reasoned that "[t]he carefully drawn statutory language [of IDEA] does not authorize these specially qualified individuals to render legal services," also observing that neither the Act nor its legislative history contained provisions "granting fees for representation by lay advocates." Id. However, the Third Circuit went on to say:
That is not to say that plaintiff here may not
perform traditional representation functions during
administrative hearings. New Jersey Office of
Administrative Law regulations authorize her to do
so. As presently drawn, however, those regulations do
not allow her to collect a fee for such services. We
emphasize, as did the district court, that nothing
prevents her from receiving compensation for work
done as an expert consultant or witness. Although we
appreciate the difficulty of trying to allocate
between compensable time spent in consultation and
noncompensable time spent in legal representation,
the task is not insurmountable. The receipt of
consultation fees should eliminate the financial
losses Arons claims to have sustained in the course
of providing assistance to parents of handicapped
The New Jersey no-fee rule will not frustrate the
Act's purpose of providing parents with expert
assistance in navigating the administrative process.
As we have noted, nothing hinders plaintiff from
charging for her expert services in giving testimony,
preparing technical reports, consulting with parents,
attending hearings, or advising parents about
Id. at 62-63.*fn6
Presumably guided by the Third Circuit's decision in New Jersey Board of Education, Arons no longer describes her participation in IDEA hearings as that of "lay advocate." Her statement of services in the case at bar is captioned "Joseph Murphy Consultation Bill." While the District seems to disparage this change in Arons's self-designation, Donegan Aff. at ¶ 46, I do not attach any weight to it in evaluating the present application.
In two more recent reported cases under the IDEA, district courts asked to direct school districts to pay for Arons's services to prevailing parents have attempted, in the Third Circuit's phrases, the "not insurmountable" task of allocating "between compensable time spent in consultation and noncompensable time spent in legal representation." 842 F.2d at 62. Those cases are Connors v. Mills, 34 F. Supp.2d 795 (N.D.N.Y. 1998), and Borough of Palmyra Board of Education v. R. C., No. 97-6119, 31 IDELR 1 3 (N.J. July 29, 1999).
In Connors, the plaintiff parent objected to the school district's IEP for her learning disabled child, enrolled the child in a private school, and hired Arons to "help her prepare" for due process hearings and to "represent her" in negotiating a number of settlement agreements "relative to the due process hearings." 34 F. Supp.2d at 799. A settlement having been arranged with respect to the district's reimbursement of plaintiff for the private school tuition, "[t]he only matter left to be examined is whether Plaintiff may recoup the cost of hiring Mrs. Arons as her representative at the various due process hearings." Id. at 806. The district judge analyzed the IDEA as construed by the Third Circuit in New Jersey Board of Education, and concluded that "[i]n the absence of affirmative state action in promulgating regulations that govern the training and conduct of lay advocates, Plaintiffs request for Mrs. Arons's fees pursuant to § 1415(e)(4)(B) must be denied." Id. at 808.
However, citing the Third Circuit's observations in New Jersey Board of Education quoted supra, the court in Connors continued:
That is not to say that Mrs. Arons cannot collect her
fees as an educational consultant or as a witness.
Thus, Mrs. Arons may recoup all fees incurred in
procuring technical reports, attending the hearings,
or in advising Mrs. Connors regarding educational
problems, the evaluation thereof, and the proper
educational placement for D.C.
Plaintiff included in her papers a summary of Arons's services similar in form to that prepared by Arons in the case at bar. Referring to that summary, the court in Connors said:
The total for the above services is $3,000. While
this list shows activities Mrs. Arons did in a
general sense, it does not break down her services
sufficiently to differentiate between those
pertaining to legal representation and those
pertaining to consultation, advice, or any other
compensable activity. As a result, a calculation of
fees cannot be done at this time. If Plaintiff
wishes, she may submit an itemized fee schedule
provided the schedule was produced contemporaneously
with Mrs. Arons's services.
Id. (citation omitted). No subsequent decisions in the case are reported.
In Palmyra the plaintiffs, parents of a learning disabled child, began administrative proceedings against the local school board, alleging that the board had failed to provide the child with a free appropriate education as required by Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. They included a request that the board reimburse them for tuition incurred at a private school to which plaintiffs had unilaterally placed their son. Throughout the administrative process, the plaintiffs "were represented by Marilyn Arons, their non-attorney representative, who also acted as a consultant to them." 31 IDELR ¶ 3 at 8. The administrative proceeding ended in plaintiffs' favor, the administrative law judge holding that the board had failed to provide the child with an appropriate education and was responsible for past and continuing enrollment and transportation expenses at the private school. The board appealed that decision to the district court, which granted plaintiffs injunctive relief, and then endorsed a settlement of the board's continuing obligations. The parties reserved on the issues of attorney's fees and expenses. The district court's opinion resolved those issues. The opinion refers to the plaintiff parents as "the Cs" and their child as "F.C."*fn7
The Palmyra plaintiffs' entitlement to recover Arons's charges from the school board turned upon the fee-shifting provisions of § 504a(b) of the Rehabilitation Act, 29 U.S.C. § 794a(b), which provide that
[i]n any action or proceeding to enforce or charge a
violation of a provision of this subchapter, the
court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee as part of
Although the case at bar is governed by the IDEA, not the Rehabilitation Act, the Palmyra court's resolution of the issue is instructive because, as that court noted, "Section 504's fee provision is virtually identical to that in the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3)(B)." 31 IDELR ¶ 3 at 11. Accordingly the district judge in Palmyra derived guidance from cases which "have consistently interpreted the phrase `reasonable attorney's fees as part of the costs' in the IDEA to include reimbursement for fees for expert witnesses and other consultants retained in connection with the case." Id. Conversely, in the case at bar involving the District's liability under the IDEA to pay for Arons's services, I may derive guidance from Palmyra, a case adjudicating a school board's liability under the Rehabilitation Act to pay for the same sort of services furnished by Arons.
The district court in Palmyra quoted the Third Circuit's holding in New Jersey State Board of Education that Arons (and by logical extension parents hiring Arons) could not recover fees for Arons's "traditional representation functions during administrative hearings," but that "nothing hinders [Arons] from charging for her expert services in giving testimony, preparing technical reports, consulting with parents, attending hearings, or advising parents about educational decisions." Palmyra, 31 IDELR ¶ 3 at 11 (quoting New Jersey State Board of Education, 842 F.2d at 63).
Applying those principles to the facts of the case, the district court in Palmyra concluded that of the 172.5 itemized hours Arons devoted to the family's situation between 1995 and 1998, "approximately half of these hours were justified and reasonable hours spent by this consultant on the type of work for which the Third Circuit indicated she should be compensated." 31 IDELR ¶ 3 at 12. Those compensable hours were devoted to "preparing for and attending Section 504 meetings, conducting research (including conversation with the Cs) to form an educational plan for F.C., talking with other experts about proper education for F.C., and obtaining placement for F.C. at the Hill Top Preparatory School." Id.*fn8 But the court continued: "Certain of the 172.5 hours listed, however, are not expenses reasonably incurred by an educational consultant for which Palmyra [the school board] should be held liable." Those noncompensable services included:
(a) Time Arons spent "providing therapy to the Cs." Her certification recited that "the 21 hours she spent in the car with the Cs traveling back and forth to Mercerville for the OAL hearing in 1996 were spent providing `parent consultation, support, explanation and services' to deal with the Cs' `distress and upset' and `anxiety and pain.'" Specifically, Arons stated in her certification that she provided consultation regarding "the two other children in the family and strategies as to how to complete the process needed in order to provide [F.C.] with the essential services that he required and was denied. These strategies were not legal in nature, but addressed the psychodynamics between parents and children at times of stress, anger and frustration." The district court concluded that "[w]ithout more specific details as to how much of these 21 hours were spent discussing F.C., the other children, and family stress," the court could allow only 25% of that time, or 5.25 hours, as properly chargeable to the school board. Id.
(b) The court disallowed entirely "[o]ther examples of time spent providing therapy or counseling," specifically, in telephone or in-person conferences which Arons's certification indicated "were devoted to discussing parent coping mechanisms, the Cs' other children, and other therapeutic topics." Id.
(c) The court refused to direct the school board to pay for the four hours Arons spent attending a workshop about students with language disorders, reasoning that the workshop "constituted professional development for Ms. Arons, and professional development, like overhead, is not recoverable from Palmyra as part of attorneys' fees and costs." Id.
(d) The court held that the Cs could not recover from the school board for Arons's 38.5 hours in travel time to meetings with the Cs" over several years. Id.
(e) The court, while acknowledging that "the Cs can recover for Ms. Arons's time testifying at a hearing or preparing technical reports," her time spent rendering legal services, "such as preparing direct and cross examinations for the OAL hearing" and "discussing the availability of legal representation by others with the Cs," were not compensable by the school board, and deducted a number of hours from the claim. Id.
The district court in Palmyra concluded this section of its opinion with these sensible observations:
This is not to say that Ms. Arons cannot
recover fees at all for time she spent traveling,
counseling, or helping the Cs obtain legal
representation. She is entitled to receive these
costs from the Cs themselves. This Court has simply
determined that it is not appropriate, under the
attorneys' fees and costs provision of the
Rehabilitation Act, to require Palmyra to pay those
costs because they are not reasonable expert
consultation services justified by the Cs' ultimate
success before the ALJ. In total, the Cs are
entitled to be reimbursed for the portion of Ms.
Arons' bill representing a total of 82 hours of
Id. Thus the court concluded that 47.5% of the charges for Arons's services were compensable by the school board under the fee-shifting provisions of the Rehabilitation Act.
The Palmyra court also held that Arons's claimed hourly rate of $200 (the same rate claimed in the case at bar) "is a reasonable fee for work by someone of Ms. Arons' caliber and experience, consistent with her customary hourly fee for such services." 31 IDELR ¶ 3 at 13.
C. The Liability of the Arlington School District for the
Cost of the Services Rendered by Marilyn Arons to the Murphy
I am in general agreement with the analyses of the district courts in Connors and Palmyra. It follows, for the reasons stated infra, that if the present plaintiffs' claim against the District based on Arons's services is allowable at all, that claim is subject to a substantial discount.
However, the District raises a threshold objection to the claim in its entirety. The District argues that the claim for Arons's services should be denied because "[n]either the parents nor Ms. Arons have provided the Court with contemporaneous records to support this part of their application." Brief at 11-12. If Arons was an attorney and plaintiffs were attempting to recover for her fees, the District's objection would be well taken. New York Association for Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), established the rule that "[h]ereafter, any attorney — whether a private practitioner or an employee of a nonprofit law office — who applies for court-ordered compensation in this Circuit for work done after the date of this opinion must document the application with contemporaneous time records." Arons's "certifications" of services are not "contemporaneous time records"; plaintiffs do not contend otherwise. But the Second Circuit has never extended the Carey rule to the compensation of experts or consultants, and I regard Arons's certifications and descriptions of her services as sufficient to allow the claim to be at least considered (although subject to the uncertainties discussed infra).*fn9
The substantive argument that the District makes is that not all Arons's claimed hours are compensable under the IDEA's fee-shifting provision. That argument requires careful analysis because, as the cases cited supra demonstrate, a prevailing parent in a suit brought under the Act is not automatically entitled to the full amount of an educational consultant's charges. To be compensable under the Act, the charges must have been incurred "in . . . an action or proceeding brought" under the Act. 20 U.S.C. § 1415(e)(4)(B). While "prevailing plaintiffs may obtain costs and attorney's fees for pre-hearing settlements pursuant to § 1415(e)(4),. . . . [t]he `trigger point' for attorney's fees under the IDEA is generally a request for an impartial hearing," Shanahan v. Board of Education of the Jamesville-Dewitt School District, 953 F. Supp. 440,444 (N.D.N.Y. 1997). The same "trigger point" logically applies to consultants' fees claimed as part of the costs of an action brought under the Act. It is readily apparent, and the cited cases demonstrate, that an educational consultant such as Arons may render services to a family such as the Murphys which, while valuable and helpful, do not fall within the ambit of compensable costs under the IDEA.
In the case at bar, by a letter dated September 3, 1998, plaintiffs requested an impartial hearing "to determine whether or not the District should be required to reimburse them for the costs associated with the unilateral placement of their son in a private school along with costs associated with private speech therapy." Donegan Aff. at ¶ 10 That date establishes the starting line of the administrative/litigation process in which plaintiffs prevailed, thereby becoming entitled to the statutory award of fees. I will not charge the District for any services by Arons to the plaintiffs prior to that date.
The date establishing the finish line of the process is March 1, 2000, which is the date of this Court's ruling in plaintiffs' favor on the merits of their contentions. That ruling turned the plaintiffs into "prevailing parties" under the IDEA fee-shifting provision. The litigation had been resolved in their favor. It necessarily follows that services rendered by Arons to plaintiffs subsequent to that date cannot be characterized as "part of the costs" of the "action or proceeding," those being the defining phrases of the IDEA fee-shifting provision.*fn10
Within those temporal parameters, the first services rendered by Arons that might be compensable occurred on September 23, 1998, and the last on September 4, 1999. I use the phrase "might be compensable" because, in the words of the district court in Connors, it is necessary "to differentiate between those [services] pertaining to legal representation and those pertaining to consultation, advice or other compensable activity," the former being noncompensable under the Act and the latter compensable.
During this period of time Arons rendered 43 1/4 hours of services to the plaintiffs and to their son. As in Connors, the descriptions of services Arons includes in her certification are not sufficiently detailed to allow a differentiation to be performed with certainty. But the descriptions during this period of time show clearly enough that Arons was furnishing consulting services to plaintiffs in preparation for the impartial hearing before the IRO. Those services are compensable.
I reject the District's contentions that some of them are not. The District questions 4 hours Arons spent on November 8, 1998 reviewing a scholarly article on learning disabilities. As noted, the district court in Palmyra disallowed 4 hours Arons spent attending a workshop, reasoning that this constituted "professional development" for Arons, not compensable under a fee-shifting statute. But Arons explains in her supplemental certification at ¶ 9 that the article in question was given to her by plaintiff Pearl Murphy, who "asked me to read it and explain it to her. I did." The circumstances are quite different from those in Palmyra, and these services are compensable as pertaining to consultation or advice.
The District also objects to plaintiffs' "request for reimbursement for Ms. Arons's development of questions for witnesses at the impartial hearings." Donegan Aff., at ¶ 42. At first blush these activities as described by Arons would appear to reflect noncompensable legal representation; see, e.g., the description of 5 hours devoted on November 11, 1998 to "Development of questions for Jennifer Jenson; Review of Ansley report and recommendations; Development of Ansley questions." However, Arons explains in her supplemental certification at ¶ 3:
Relative to the questions asked at hearings, it is my
experience that special educators write those
questions for the attomies [sic] involved because
attomies do not understand the implications of
diagnostic reports or the contents of IEPs. During
the Murphy hearings, I observed Mr. Schiro [counsel
for the District] to ask the members of the Arlington
CSE about the meanings of test results, and the
staffs development of questions for him to ask about
these and related matters.
This explanation is entirely plausible, and places such services in the compensable categories of consultation and advice, rather than the noncompensable category of legal representation. I will draw an analogy from my own practice at the bar. I tried cases involving collisions of ships at sea. If radar was involved (as it almost always was), each party in the litigation retained a radar expert to consult and advise with respect to the radar-related questions the attorneys should ask on direct and cross- examination. Given the technical complexities of the developing radar technology, it would have been folly for admiralty lawyers to do anything else: but I never thought of my radar expert as the client's legal representative; I was the legal representative; the radar expert was my consultant and much-appreciated adviser.*fn11
I am unable to discern any portion of the 43 1/4 hours under consideration that clearly fall within the noncompensable category. Accordingly I allow them all, at Arons's claimed hourly rate of $200. While the District proclaims that "how Ms. Arons established this market value is a mystery," Donegan Aff. at ¶ 53, the mystery would have been solved if Donegan had read the Palmyra decision, where the district court approved that rate for Arons for reasons that I find persuasive and adopt.
It follows that with respect to the services of Marilyn Arons, plaintiffs are entitled to recover from the District the amount of $8,650 (43 1/4 hours × $200 per hour).
Plaintiffs and Arons may well be disappointed by that amount; Arons devoted 146.75 hours to the welfare of plaintiffs' son, and the claim against the District was for $29,350. In that regard, two additional points may usefully be made.
Explaining the amount of time she spent on the Murphy family's situation, Arons says in her supplemental certification at ¶ 8 that "[t]he Murphy case had three hearings, one after the other. Often there were layers of litigation occurring at the same time, impartial hearing, Supreme Court, Appellate Court, and Federal Court." The record in the case in this Federal Court does not fully reveal the nature or extent of litigation in other courts; but obviously this Court's power to award costs to plaintiffs is limited to costs incurred in this case: "layers of litigation" in other courts and costs incurred in connection with them (including fees for Arons's services) have no relevance to the present application.
Second, nothing I have said in this opinion or the result I have reached should be regarded as a denigration of Marilyn Arons's abilities or the devoted services she rendered to the Murphy family. I have no doubt that those services were worth over $29,000. But my responsibility is to interpret and apply a fee-shifting statute, awarding plaintiffs what the law allows while protecting the finite resources of the Arlington Central School District budget from expenditures the law does not require. Arons's agreement with the Murphys to accept as compensation only what the Court allowed may be viewed as compassionate, but it forms no basis for the Court to depart from what the law does in fact allow.
D. The Liability of the Arlington School District for the
Cost of Mileage Incurred by Plaintiff Pearl Murphy
Plaintiff Pearl Murphy claims a total of $7,847.14 in mileage costs. This total is based upon a mileage rate of 36.5 cents per mile, with Mrs. Murphy using the family car. Of that amount, $6,161.22 represents mileage incurred in driving Arons to and from the latter's home in New Jersey; Arons is not a licensed driver. The balance represents travel to and from the offices of several physicians and speech therapists who were treating Joseph Murphy.
I am not able to allow any of these claims under the Act's fee-shifting provision. Plaintiffs had every right to retain an out-of-state consultant who did not drive, but a mileage cost for use of the plaintiffs' car does not fit within even an expanded concept of "attorneys' fees as part of the costs."*fn12 Nor may the District be required under the Act to reimburse plaintiffs for mileage incurred in taking Joseph to private physicians and therapists.
For the reasons stated, plaintiffs Pearl Murphy and Theodore Murphy are entitled to recover from defendant Arlington Central School Board of Education the sum of $8,650. The balance of plaintiffs' application for fees and costs in this action is denied.
If the District does not pay this amount promptly, plaintiffs may ask this Court in writing (with a copy to counsel for the District) to enter judgment on this amount, so that post-judgment interest will begin to accrue. There is no occasion to consider pre-judgment interest, because plaintiffs are not out of pocket with respect to the allowed amount.
It is SO ORDERED.