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B.W. v. New York City Dep't of Education

June 3, 2010

B.W. O/B/O K.S., A MINOR; T.S. O/B/O J.W., A MINOR; PLAINTIFFS,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

By notices of motion dated November 23, 2009 (Docket Items 13 and 14), plaintiffs move, pursuant to Federal Rule of Civil Procedure 56 and 20 U.S.C. § 1415(i)(3), for summary judgment awarding attorney's fees and costs of $21,155.00. For the reasons set forth below, plaintiffs' motions are granted.

II. Facts

Plaintiffs commenced this action seeking attorney's fees incurred in two administrative proceedings under the Individuals with Disabilities Education Act ("IDEA"), as amended by the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400 et seq. (Amended Complaint ("Am. Compl.")).

Since these motions were filed, defendant has conceded that plaintiff T.S. was a prevailing party and has paid the requested fees of $2,512.50 in connection with T.S.'s case (Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Summary Judgment ("Def.'s Mem. in Opp.") at 1-2; Plaintiffs' Reply Memorandum of Law ("Pls.' Reply Mem.") at 1). Accordingly, the only remaining issue in dispute involves plaintiffs' request for $18,642.50 in attorney's fees in connection with the B.W. o/b/o K.S. action (Pls.' Reply Mem. at 1; see Am. Compl. ¶ 22).

K.S. was born on October 26, 1998 (Individualized Education Program for K.S., dated December 19, 2005, annexed as Ex. D to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("12/19/05 IEP")). K.S.'s grandmother, B.W., took custody of her when she was twoand-a-half months old, and B.W. continues to be her legal guardian (Transcript of Hearings, annexed as Ex. G to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("Tr.")*fn1 at 105; Affidavit of Marilyn C. Mazur, sworn to November 20, 2009 ("Mazur Aff.") ¶ 10). B.W. became aware that K.S. had Attention Deficit Disorder ("ADD") or Attention Deficit Hyperactivity Disorder ("ADHD") when K.S. was in preschool (Tr. 106). In March 2002, K.S. underwent ADD-related testing at Columbia Presbyterian Hospital and became involved in ADHD treatment and studies at the affiliated New York State Psychiatric Institute (Tr. 106-07).

B.W. attempted, without success, to have K.S. evaluated for special education services while she was in preschool (Tr. 110-11). Early in the 2004-2005 school year, B.W. told K.S.'s first grade teacher that K.S. had ADHD and asked the teacher to complete a questionnaire for the ADHD study in which K.S. was participating (Tr. 108-09, 115, 189-90, 356-57). After B.W. expressed concerns about K.S.'s education to the teacher's supervisor, the school's guidance counselor and her local city council member, and after K.S.'s mother asked for assistance from the Pupil Personnel Committee and the guidance counselor and submitted an evaluation from Columbia University diagnosing K.S. with ADHD, K.S.'s school provided her with about a month of sporadic "at-risk" Special Education Teacher Support Services ("SETSS") in May, and possibly early June, 2005 (Impartial Hearing Officer's Findings of Fact and Decision, dated July 31, 2006, annexed as Ex. I to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs, also annexed to Answer as Ex. A ("IHO Decision") at 4, 6-7; see Tr. 182-83, 252-53, 256-60, 275-76, 281-82, 745-46).

K.S. has difficulties with language skills, listening comprehension, reading, writing, focusing and completing assignments (Tr. 113, 115, 208-11, 244-45, 352-54, 766). At B.W.'s request, the Department of Education ("DOE") referred K.S. for evaluation in October 2005, and on December 19, 2005 the Committee on Special Education ("CSE") convened and prepared an Individualized Education Program ("IEP") for K.S. (12/19/05 IEP; Tr. 119). The IEP classified K.S. as having a learning disability and recommended that she participate in a general education program with supplemental SETSS, which would mean she would be removed from regular classes for five periods per week to attend a class of eight students (12/19/05 IEP at 1; Mazur Aff. ¶ 12; see Impartial Hearing Request, dated March 16, 2006, annexed as Ex. C to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("First Impartial Hearing Request") at 1). The school implemented this plan starting in January 2006 (12/19/05 IEP at 2; Tr. 118, 127).

On March 16, 2006, B.W., through her attorney Marilyn Mazur of Partnership for Children's Rights ("PFCR"), filed a due process complaint requesting an Impartial Hearing on the validity and appropriateness of the December 19, 2005 IEP (First Impartial Hearing Request; Mazur Aff. ¶¶ 11-12). In B.W.'s hearing request, she argued that defendant had violated the IDEA's "child find" provision by waiting until October 2005 to evaluate K.S. despite school personnel's longstanding knowledge that K.S. had ADHD, and that the IEP recommending general education combined with SETSS failed to provide K.S. with a free appropriate public education ("FAPE") as required by the IDEA*fn2 (First Impartial Hearing Request at 1). B.W. contended in the letter that K.S. "requires a small, structured classroom with a [low] student-teacher ratio so that she can receive the instruction that will enable her to access education despite her disability" (First Impartial Hearing Request at 1). Specifically, B.W. sought an order compelling defendant to pay K.S.'s tuition at Stephen Gaynor School, a private, non-approved, special education school in which B.W. enrolled K.S. for the 2006-2007 school year (First Impartial Hearing Request at 2; IHO Decision at 3; see Mazur Aff. ¶ 13; Am. Compl. ¶ 11).

Impartial Hearing Officer ("IHO") Theresa R. Joyner conducted hearings on April 27, May 24, June 9, June 13 and June 19, 2006 (IHO Decision at cover page, 1-2; Tr. 1, 82, 328, 553, 737; Mazur Aff. ¶ 16). On July 31, 2006, IHO Joyner issued a decision concluding that, because several school personnel were aware that K.S. had ADHD, "it is clear the child should have been referred to the CSE by the fall of 2004, when the student was in the first grade" (IHO Decision at 11-12). She also stated that "it is abundantly clear that even after the evaluation the student was not appropriately placed" (IHO Decision at 12). Accordingly, IHO Joyner found that defendant violated the "child find" provision of the IDEA and that defendant failed to provide K.S. a FAPE in violation of the IDEA (IHO Decision at 12-13). However, she found B.W.'s request that defendant pay K.S.'s private school tuition premature because there was still time for defendant to "remedy the situation" through other means, and instead ordered that the CSE reconvene within fifteen days of the decision in order to "recommend an appropriate placement for this student with consideration given to the private evaluations presented at the hearings" (IHO Decision at 13-14).

The CSE reconvened on August 11, 2006 and, inexplicably, reissued the same IEP that IHO Joyner had found denied K.S. a FAPE -- general education combined with five periods of SETSS per week (Individualized Education Program for K.S., dated August 11, 2006, annexed as Ex. M to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("8/11/06 IEP") at 1-2, 7; Mazur Aff. ¶ 26). The "conference result" field on the new IEP was marked "No Change" (8/11/06 IEP at 2; Mazur Aff. ¶ 26).

Because the CSE did nothing to correct the deficient IEP in response to IHO Joyner's decision, on August 16, 2006, B.W. requested another Impartial Hearing on an expedited basis (Expedited Impartial Hearing Request, dated August 16, 2006, annexed as Ex. N to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("Second Impartial Hearing Request") at 1-2; Mazur Aff. ¶ 27). In this request B.W. noted that IHO Joyner had found defendant violated the "child find" provision of the IDEA and denied K.S. a FAPE, and again requested an order compelling defendant to pay K.S.'s tuition for the 2006-2007 school year at Stephen Gaynor School (Second Impartial Hearing Request at 1-2; see Mazur Aff. ¶ 27).

IHO Maria L. Marchiano was appointed to hear the matter and held hearings on September 25, October 16, October 17 and October 20, 2006 (Statement of Agreement and Order by IHO Marchiano, dated October 25, 2006, annexed as Ex. O to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("K.S. Settlement Agreement") at 1-3; Mazur Aff. ¶ 28). On the last day of the hearing defendant withdrew its opposition to B.W.'s claims and agreed to pay the full amount of K.S.'s tuition to the Stephen Gaynor School for 2006-2007 (K.S. Settlement Agreement at 3; Mazur Aff. ¶ 28). IHO Marchiano issued a Statement of Agreement and Order which ordered "that the District pay for the child's tuition for the Stephen Gaynor School for the school year 2006-2007 in the amount of $37,900.00" (K.S. Settlement Agreement at 3). Defendant then paid the full amount for K.S.'s 2006-2007 tuition (Mazur Aff. ¶ 31). Defendant also paid PFCR attorney's fees in connection with the second, but not the first, Impartial Hearing (Mazur Aff. ¶ 31).

B.W. was represented in both Impartial Hearings by Marilyn Mazur, a volunteer attorney with PFCR (Affidavit of Michael D. Hampden, sworn to November 23, 2009 ("Hampden Aff.") ¶ 2; Mazur Aff. ¶¶ 3, 10; Am. Compl. ¶ 9). PFCR, formerly Legal Services for Children, Inc., is a "charitable, not-for-profit organization authorized by the Appellate Division of the Supreme Court of the State of New York to provide legal services without fee to low-income families in civil matters involving the rights of children" (Am. Compl. ¶ 10; Hampden Aff. ¶ 4; see Mazur Aff. ¶ 3). PFCR does not charge attorney's fees to its clients (Hampden Aff. ¶ 5), but, in addition to other funding sources, relies "on the recovery of statutory attorney's fees allowed by federal law to provide operating revenue for the ongoing work of the organization" (Hampden Aff. ¶ 6). B.W.'s retainer agreement with PFCR provided that PFCR would not charge B.W. for its services, but stated that PFCR could keep any fees or costs it was awarded by a court (Am. Compl. ¶ 18; see Hampden Aff. ¶ 13; Mazur Aff. ¶ 23). B.W. authorized PFCR to request and receive attorney's fees in conjunction with her IDEA proceedings and to receive them on her behalf (B.W. Authorization to Accept Settlement, annexed as Ex. L to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs; Mazur Aff. ¶ 24; Hampden Aff. ¶ 14).

On January 2, 2007, PFCR made a demand on defendant for attorney's fees under the IDEA, 20 U.S.C. § 1415(i)(3)(B), in connection with the initial Impartial Hearing decision by IHO Joyner (PFCR Request for Attorney's Fees and Costs, dated January 2, 2007, annexed as Ex. J to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("PFCR Request for Attorney's Fees and Costs"); Mazur Aff. ¶ 19; Hampden Aff. ¶ 9; Am. Compl. ¶ 16). PFCR requested $18,642.50 for 58.9 hours of work (Marilyn Mazur Timesheet for K.S., initiated February 16, 2006, annexed as Ex. K to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs ("Mazur Timesheet"); PFCR Request for Attorney's Fees and Costs; Mazur Aff. ¶ 19; Hampden Aff. ¶ 29). PFCR's request was accompanied by a chronological log of hours expended, computed to the tenth of an hour (Mazur Timesheet; Hampden Aff. ¶¶ 11, 25; Am. Compl. ¶ 17; see Mazur Aff. ¶ 20). Mazur billed for time spent investigating facts, interviewing her client and witnesses, communicating with the DOE and the school, preparing the Impartial Hearing request, assembling the documentary evidence, preparing and serving subpoenas, drafting a post-hearing memorandum of law, and preparing for, traveling to and attending the Impartial Hearings (Mazur Timesheet; Mazur Aff. ¶ 21; see Mazur Aff. ¶¶ 11, 14, 15, 16, 17, 25). Mazur did not bill for time spent reviewing and correcting hearing transcripts or for time spent preparing a first draft of her post-hearing memorandum of law (Mazur Timesheet; Mazur Aff. ¶ 22). Nor were any costs billed (Hampden Aff. ¶ 27; see Mazur Timesheet).

With the exception of travel time, which was billed at half the normal rate (Mazur Timesheet; Hampden Aff. ¶ 27), Ms. Mazur's time was billed at $375.00 per hour, the rate provided by PFCR's written attorney's fees policy for an attorney at the "senior partner" level (an attorney who has been practicing for more than fifteen years) (Mazur Timesheet; PFCR Revised Attorney's Fees Policy, annexed as Ex. B to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs; Hampden Aff. ¶¶ 17, 19-20; see Mazur Aff. ¶ 9). Ms. Mazur had been practicing as an attorney in New York since 1973 and had been a volunteer attorney with PFCR since 2000 (Marilyn Mazur C.V., annexed as Ex. A to Exhibits in Support of Plaintiffs' Motion for Summary Judgment Awarding Attorney's Fees and Costs; Mazur Aff. ¶¶ 3, 5-9).

Defendant did not make payment in response to plaintiffs' January 2, 2007 demand for fees, nor did it offer any explanation reflected in the record for refusing to pay plain-tiff's fees (Am. Compl. ¶ 23; Hampden Aff. ¶ 10; Mazur Aff. ¶ 31). Plaintiffs commenced this action on July 28, 2009 (Docket Item 1), and the parties consented to my exercising jurisdiction over the action on September 21, 2009 (Docket Item 8). On November 23, 2009, plaintiffs B.W. and T.S. moved for summary judgment awarding a total of $21,155.00 in attorney's fees in connection with their administrative proceedings (Docket Items 13 and 14). As noted above, defendants later paid the requested $2,512.50 in fees with regard to the T.S. o/b/o J.W. action, but continued to dispute the propriety of fees with regard to the first hearing in the B.W. o/b/o K.S. action (Def.'s Mem. in Opp. at 1-2; Pls.' Reply Mem. at 1; see Hampden Aff. ¶ 24).

Defendant argues that B.W. was not a prevailing party with regard to her first administrative hearing (Def.'s Mem. in Opp. at 2, 5-8), and that even if B.W. were a prevailing party, she should not recover fees in the full amount with regard to the first administrative hearing because she did not receive the relief that she sought (Def.'s Mem. in Opp. at 2, 14-15). Defendant does not dispute the reasonableness of the fees requested, but only whether, or to what degree, B.W. is entitled to fees in connection with her Impartial Hearing before IHO Joyner (Def.'s Mem. in Opp. at 15 n.5).

Plaintiffs respond that B.W. was a prevailing party in the administrative proceedings before IHO Joyner, and, additionally, that the full relief she later obtained as a result of the settlement ordered by IHO Marchiano was inextricably linked to these proceedings (Memorandum of Law in Support of Motion for Summary Judgment Awarding Attorney's Fees and Costs ("Pls.' Mem. in Support") at 2-9; Pls.' Reply Mem. at 2-19; Hampden Aff. ¶ 8). Plaintiffs also maintain that the relief B.W. achieved entitles her to the entire fee award they requested (Pls.' Reply Mem. at 12-15).

III. Analysis

A. Applicable Legal ...


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