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V.G. v. Auburn Enlarged Central School District

December 9, 2008

V.G., A CHILD WITH A DISABILITY, INDIVIDUALLY AND BY HER PARENT AND NEXT FRIEND, J.G., AND M.G., A CHILD WITH A DISABILITY, INDIVIDUALLY AND BY HER PARENT AND NEXT FRIEND, J.G., PLAINTIFFS,
v.
AUBURN ENLARGED CENTRAL SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiffs V.G. and M.G., children with disabilities within the meaning of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401(3)(A), are students in defendant Auburn Enlarged Central School District ("District"). They and their parent, J.G., bring this action for attorneys' fees under 20 U.S.C. § 1415(i)(3)(B)(i)(I), which authorizes district courts to award attorneys' fees to a prevailing party in IDEA proceedings.

In the first cause of action of the complaint (Dkt. No. 1), plaintiffs claim that the parent J.G. initiated an IDEA proceeding on behalf of her daughter V.G.; that through counsel J.G. obtained the relief requested on significant issues in a Consent Decree ordered by the hearing officer; and that therefore J.G. is a prevailing party entitled under IDEA, 20 U.S.C. § 1415(i)(3)(B)(i)(I), to recover costs and attorneys fees for the proceeding and the instant action.

The second cause of action asserts the same claims with respect to V.G.'s sister M.G.

Defendant moves (Dkt. No. 6) for summary judgment dismissing the action. Plaintiffs move (Dkt. No. 7) for an award of attorneys' fees and costs. The Court denies defendant's motion and grants plaintiffs' motion for attorneys' fees and costs in the total sum of $9,608.30.

IDEA AND ATTORNEYS' FEES, GENERALLY

The purpose of IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs[.]" 20 U.S.C. § 1400(d)(1)(A). To further this goal, IDEA requires states receiving certain federal funds to "offer parents of a disabled student an array of procedural safeguards designed to help ensure the education of their child." Polera v. Bd. of Educ., 288 F.3d 478, 482 (2d Cir. 2002). Among the mandated procedures is the opportunity for a parent of a disabled child to present a "complaint" (also known as a "due process complaint"; hereinafter referred to as "DP complaint")*fn1 to the local educational agency (here, the District). 20 U.S.C. § 1415(b)(6). The local educational agency must then convene a resolution session with the parent and members of an Individual Education Plan ("IEP") team, and, if the matter is not resolved to the satisfaction of the parent, must give the parent the opportunity for an "impartial due process hearing" ("IDP hearing"). 20 U.S.C. § 1415(f). In New York State such hearings are conducted by an "impartial hearing officer" ("IHO"). See N.Y. Educ. L. § 4404(1).

A district court may in its discretion award attorneys' fees to a "prevailing party" in an IDEA proceeding or action. 20 U.S.C. §1415(i)(3)(B)(i)(I). At issue in this case is whether plaintiffs are prevailing parties within the meaning of IDEA for the purpose of recovering attorneys' fees, and, if so, the amount of attorneys' fees, if any, they should receive. As discussed below, the Court finds that plaintiffs are prevailing parties and awards them $9,608.30.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Facts

The facts relevant to the question of whether plaintiffs may recovery attorneys' fees as prevailing parties are set forth below. They are undisputed unless otherwise noted. The Court draws them from the complaint, the documentary evidence, and averments in defendant's Statement of Material Facts which are supported by the record and which plaintiffs do not dispute.

On February 11, 2005, J.G. requested that the District provide her daughter V.G., a middle school student, with an IEP pursuant to IDEA. At that time V.G. was not classified as a student with a disability under IDEA. She had previously been diagnosed with the disabilities of early onset bi-polar disorder, attention deficit hyperactivity disorder, oppositional defiant disorder, and a conduct disorder. The District's Committee on Special Education ("CSE") met on June 14 and 16, 2005, but did not classify V.G. as having a disability.

On October 21, 2005, plaintiffs' counsel, Andrew K. Cuddy, Esq., sent the District a DP complaint regarding J.G.'s daughter, V.G. It proposed that the District classify her as a student with a disability; conduct a thorough evaluation; develop an IEP; provide services to address her reading and math delays and deficits; implement an appropriate program; provide counseling; and conduct a functional behavioral assessment to develop a behavioral intervention plan. Plaintiffs further demanded that the District pay the parent's attorneys' fees and expenses.

M.G., V.G.'s sister, was also a middle school student in the District. M.G. had already been classified as a student with a learning disability. On October 24, 2005, Cuddy sent the District a DP complaint regarding M.G., stating that J.G. was not in agreement with the CSE's classification, evaluation, program, or placement decisions regarding M.G. The DP complaint proposed that the District conduct a thorough evaluation; develop an IEP; provide services to address M.G.'s reading and math delays and deficits; implement an appropriate program; provide services to address her organizational deficits; and ensure that the composition of the 15:1 classes is such that the range of academic achievement of the students is sufficiently similar. Plaintiffs further demanded that the District pay the parent's attorneys' fees and expenses.

On November 10, 2005, Laura Owen, the District's Director of Special Education, participated in a resolution session regarding both V.G. and M.G. with the parent and Kyle Costello, a law clerk from Cuddy's office. In an affidavit in support of defendant's motion, Owen states it was her "impression and understanding" that the parties reached a verbal agreement at the resolution session regarding all issues underlying the DP complaints concerning both girls.

Thereafter, Cuddy forwarded to the District a proposed "Settlement Agreement" regarding V.G.*fn2 It included a provision that the District agreed to pay the parents' attorney fees, costs and expenses in an amount not to exceed $5,000. Susan T. Johns, Esq., the District's attorney, states that Owen advised her that the District did not agree to pay up to $5,000 in attorneys' fees.

The District forwarded to the parent two proposed "Resolution Agreements" reflecting the District's understanding of the agreements reached by the parties at the November 10, 2005 resolution session concerning both girls. On November 15, 2005, Cuddy rejected the agreements proposed by the District.

On November 29, 2005, Cuddy sent the District a proposed "Consent Decree" for each girl. Each proposed Consent Decree included a "so-ordered" line for signature by the IHO. In her affidavit, Owen states: "While there are some differences between the 'resolution agreements' that I prepared and the 'consent decrees' prepared by Mr. Cuddy, those differences are relatively minor and lack practical significance." She explains in detail the grounds for this conclusion.

According to Johns, she spoke to Cuddy on December 8, 2005, and advised him that the District did not object to the substance of the proposed November 29, 2005 Consent Decrees, but that "the substance of the decrees needed to reflect that the District had already begun to implement its understanding of the resolution agreement and, therefore, would not need to agree to do the same thing again, at a future date." Accordingly, on January 4, 2006, Johns sent Cuddy revised proposed agreements, each headed "Agreement," which Johns believed "incorporated the substance of Cuddy's proposed consent decrees, but did not include language that had been rendered superfluous due to events that had transpired after the resolution session." The Agreements did not include signature lines for the IHO.

Cuddy rejected the proposed Agreements, stating in an e-mail on January 4, 2006: "I NEVER indicated that we were entering into agreements with the district. I indicated that we would agree to enter into consent decrees and resolve the fee issue later.... We're just going to have to go forward with the hearing."

IDP hearings were scheduled to take place at District offices. M.G.'s hearing was scheduled for January 12, 2006, before IHO Joan Alexander. V.G.'s case was scheduled for January 17, 2006, before IHO James Walsh. Owen's affidavit describes what occurred when the parties assembled on January 12, 2006, for M.G.'s hearing as follows:

Shortly before the hearing was scheduled to start, the IHO went to her car to retrieve something that she had forgotten to bring inside. While the parties were assembled in the hearing room waiting for the IHO to return ... [Cuddy indicated] that the parties did not need to go through the hearing, if both sides executed the consent decree and the IHO signed it. When the IHO returned from the parking lot, the attorneys advised her that they would be executing a consent decree and there was not going to be any hearing.

After the IHO was advised that there would be no hearing, I showed her to my office, where she waited while the consent decree was prepared and printed. ... The IHO played no part in fashioning the agreement, however, she did return to the hearing room and signed it after the parties had signed it. In addition to entering into the consent decree to resolve the proceeding involving M.G., the parties also executed a consent decree at the same time to resolve the proceeding involving V.G.... (Citations to record omitted.)

The affidavit from the District's attorney, Johns, is similar to Owen's regarding the events of January 12, 2006. Johns added:

After the parties signed the consent decree for M.G., the IHO returned to the room and also signed the consent decree. According to my recollection, immediately after the IHO returned to the hearing room, but before she signed the agreement, Cuddy asked her if she wanted any information regarding the child or the terms of the agreement and she responded, in sum and substance, that both parties were represented by experienced counsel and if we approved of the agreement, then she would sign it.

The Consent Decree for V.G. was mailed to James Walsh, the IHO assigned to V.G.'s case. Walsh so-ordered it on January 17, 2006, and returned it to the District with a cover letter stating: "While not so expressed in exact words, I consider the execution of the Consent Decree by [the] Parent to constitute a withdrawal of her Request for Hearing."

The January 17, 2006 Consent Decree concerning V.G. provides that the District will classify her as a student with a learning disability; that the CSE will convene by February 12, 2006, to review the report of Dr. Ronald Schworm, who performed an independent educational evaluation, as well as any other updated testing or reports, and develop an appropriate IEP; that the District will pay for Dr. Schworm's evaluation and will reimburse the parent for transporting the student to and from this evaluation; and that the parties consent to the participation of Cuddy's legal assistant Diane Zambotti as the parent's representative.

The January 12, 2006 Consent Decree concerning M.G. provides that the District will pay for Dr. Schworm's evaluation and will reimburse the parent for transporting the student to and from this evaluation; that the District shall provide her with specialized instruction in specified areas; that the CSE will meet within 30 days to review any evaluative data and/or recommendations and to develop an appropriate IEP; that the parties will employ a homework tracking system; and that the parties consent to Zambotti's direct participation.

Applicable Law

The Supreme Court has defined the term "prevailing party" in the context of similar statutory attorney-fee-shifting schemes as "one who has been awarded some relief by the court." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001).*fn3 A party obtaining relief through a judgment on the merits or a court-ordered consent decree can be a prevailing party, because it has achieved a court-ordered alteration in the legal relationship of the parties. Id. at 604. In contrast, a defendant's voluntary change in conduct lacks the necessary "judicial imprimatur on the change" to make a plaintiff a prevailing party, even where the voluntary change affords the plaintiff the relief sought. Id. at 605.

The Second Circuit applied the Buckhannon principle to the IDEA fee-shifting scheme in A.R. ex rel. R.V. v. New York City Dept. of Educ., a case involving a number of New York State IDEA administrative proceedings. 407 F.3d 65 (2d Cir. 2005). The court first concluded that an IHO's decision on the merits in an IDEA proceeding constituted "administrative imprimatur" analogous to a judicial determination, because "such an order changes the legal relationship between the parties: Its terms are enforceable, if not by the IHO itself, then by a court[.]" Id. at 76. The A.R. court further held that dispositive administrative orders incorporating the terms of settlements were analogous to the court-ordered consent decree discussed in Buckhannon, thus affording the parents prevailing party status. In this respect, the Second Circuit observed:

We think that [administrative consent decrees] evidence the same combination of administrative imprimatur, change in the legal relationship of the parties, and judicial enforceability that renders the winner on the merits in an IHO decision ... a "prevailing party" under the IDEA and Buckhannon.

Id. at 77. Finally, the Second Circuit distinguished such administratively-sanctioned settlements from "purely private" settlements, holding that the latter do not support prevailing party status, and stating: "Had the IHOs done no more than dismiss the cases following settlement, their involvement to that extent would not be enough." Id. at 78; accord Mr. L. v. Sloan, 449 F.3d 405, 408 (2d Cir. 2006) (holding that the parent was not a prevailing party because the parties' settlement was neither approved by the hearing officer nor incorporated into the dismissal order).

Discussion

Applying these principles here, the Court notes that the cases of both V.G. and M.G. proceeded to the IDP hearing stage, hearing dates were set, IHOs were assigned, and, in the case of M.G., the parties appeared for the hearing prepared to proceed. In both cases, the parties agreed upon and signed Consent Decrees setting forth their entire agreements, and the IHOs so-ordered them. As such, the IHOs' signatures so-ordering the Consent Decrees gave rise to the combination of administrative imprimatur, the change in the legal relationship of the parties arising from it, and subsequent judicial enforceability, sufficient to render plaintiffs prevailing parties under IDEA. See A.R., 407 F.3d at 77.

Defendants argue, however, that the Second Circuit decision in Torres v. Walker militates against affording prevailing-party status to plaintiffs in the instant case. 356 F.3d 238, 245 (2d Cir. 2004). In Torres, the Second Circuit considered whether a so-ordered stipulation of dismissal resolving a prisoner civil rights case carried with it a "sufficient judicial imprimatur" to warrant treatment as a monetary judgment subject to the attorneys' fee cap in the Prisoner Litigation Relief Act ("PLRA"), 42 U.S.C. § 1997e(d)(2). In holding that it did not, the Torres court noted, among other factors, that "there is nothing in the record indicating that the district court carefully reviewed the terms of the stipulation -- or, for that matter, reviewed it at all before 'so ordering' it." In a footnote, that court added: "[T]he Court's restrictive language in Buckhannon requires not only the physical incorporation of the settlement in a district court's order but also some evidence that a district court intended to place its 'judicial imprimatur' on the settlement." 356 F.3d at 244, n.6. (citation omitted).

In A.R., however, the Second Circuit did not adopt the Torres requirement. Rather, the court expressly declined to decide whether the requirement of evidence of district court's intention to place its judicial imprimatur on the settlement, as articulated in Torres, was relevant to prevailing-party status under IDEA. The A.R. court stated:

In a footnoted dictum [in Torres, 356 F.3d at 244, n.6], we have indicated that Buckhannon requires not only the physical incorporation of the settlement in a district court's order but also some evidence that a district court intended to place its judicial imprimatur on the settlement. If that is so, and if the requirement applies to administrative hearings, the requirement is met here. 407 F.3d at 78, n.14 (emphasis added; citations and internal quotes omitted). This Court does not read either the language in Buckhannon or the analysis by the A.R. court as requiring it to inquire into how thoroughly the IHOs reviewed the Consent Decrees in the case at bar or what they intended when they signed them. Rather, the IHO's signature on the so-ordered line of each of these Consent Decrees is sufficient in itself to provide the required administrative imprimatur.*fn4

Accordingly, the Court finds that defendant has not demonstrated that it is entitled to judgment dismissing the action for attorneys' fees as a matter of law. Defendant's motion for summary judgment dismissing ...


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