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S.M. v. Evans-Brant Central School District

United States District Court, Second Circuit

July 31, 2013

S.M., individually, and P.M., by his parent and next friend, S.M; P.P., individually, and A.P., by his parent and next friend, P.P., Plaintiffs,
Evans-Brant Central School District, Defendant.


WILLIAM M. SKRETNY, Chief District Judge.


This Court has combined for decision two actions by S.M. and P.P (parents of P.M. and A.P., respectively) brought against Evans-Brant Central School District.[2] These actions seek exclusively costs and attorney fees, as authorized by the Individuals with Disabilities Education Improvement Act ("IDEA"), which provides that such fees are available to "a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B). Having been granted relief at the administrative level on behalf of their disabled children, both S.M. and P.P. now contend that they are "prevailing parties" and therefore ought to be awarded fees and costs.

Despite the Supreme Court's admonition that a fee request "should not result in a second major litigation, " Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), this Court has already resolved a motion to dismiss in each case and, currently, there are eight pending motions in the combined cases. Each party has moved for summary judgment (Defendant has inexplicably so moved twice ) and Plaintiffs have moved to strike that second summary judgment motion, resulting in nothing less than precisely what the Supreme Court hoped would not occur.

Nonetheless, the main dispute requires resolution, and many of the tangential motions are superfluous and can be disposed of with little or no discussion (none more so than Defendant's second motion for summary judgment, which does not appear to differ in any substantive manner from its first motion), enabling this Court to finally determine whether, and to what extent, Plaintiffs should be awarded attorney fees.


A. Statutory and Factual Background

The purpose of the IDEA to ensure that all disabled children receive a free and appropriate public education (commonly referred to as "FAPE") emphasizing "special education and related services designed to meet [the children's] unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A).[3] A key component in achieving this goal is the individualized education program, or "IEP, " which is a written document jointly created annually by a team consisting of educators and the parents of the disabled child. 20 U.S.C. §§ 1401 (14), 1414(d). In New York, that team is referred to as a Committee on Special Education, or a "CSE." N.Y. Educ. Law § 4402; 8 N.Y.C.R.R. § 200.3(a)(1). Under New York and federal education law, parents of disabled children who are dissatisfied with their children's IEP may request, under IDEA-mandated procedures, a review before an impartial hearing officer ("IHO") appointed by the relevant board of education. N.Y. Educ. Law. § 4404; see generally 20 U.S.C. § 1415(f) (describing requirements for impartial due-process hearing).

The parents here, dissatisfied with the IEPs and educational placement of their disabled children at Evans, both filed this type of complaint. After Evans received the complaint, the parties engaged in a required "resolution session, " at which "the parents of the child discuss their complaint [] and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint." 20 U.S.C. § 1415(f)(1)(b). Following the meeting, Evans sent both parents a proposed settlement agreement, but the parents rejected the proposal and proceeded to hearings before IHOs.

At the hearings, Evans conceded the underlying defects with the students' IEPs. Its central argument, which it raises again here, was that there remained no justiciable controversy because it took steps to remedy the issues identified in the parents' complaint. The IHOs rejected that argument in both cases and went on to make various rulings.

As for P.P., on May 23, 2008, after the hearing, IHO Martin Kehoe III issued a "pendency" decision in Plaintiffs' favor. Like a preliminary injunction, it ordered Evans to provide certain educational services while the final decision was pending. Subsequently, on July 16, 2008, the IHO issued his final decision, determining that Defendant failed to provide A.P. with a FAPE for the 2007-08 school year.

In S.M.'s case, on June 2, 2008, again after the hearing, IHO Michael Lazan issued a decision in S.M. and P.M's favor, also determining that Evans failed to provide P.M. with appropriate educational programs and services for the 2007-2008 school year. Shortly thereafter, Evans appealed the IHO's decision to the State Review Officer of the New York State Education Department. See N.Y. Educ. Law. § 4404(2); see generally 20 U.S.C. § 1415(g) (describing requirements for appeal to state agency). Two months later, on August 25, 2008, the State Review Officer upheld the IHO's decision.

After these decisions, both Plaintiffs requested, outside of court, attorney fees and costs from Evans, as authorized by the IDEA. See 20 U.S.C. § 1415(i)(3)(B)(I). Evans denied those requests, prompting the current actions.

B. Procedural History

P.P. commenced this action by filing a complaint in this Court on October 28, 2009. On November 20, 2009, Evans moved to dismiss that complaint. This Court later denied that motion in all respects but one, finding in Evans' favor that P.P. could not recover attorney fees for meetings that occurred before July 16, 2008. (Docket No. 12.)

After discovery, Evans moved for summary judgment (Docket No. 42), and P.P. responded with an affidavit in opposition, indicating that he planned to file his own summary judgment motion. He did so on December 21, 2012. (Docket No. 52.) Thereafter, Evans filed a second motion for summary judgment, styled as a "cross-motion." (Docket No. 59.) P.P. then moved to strike that motion. (Docket No. 62.)

Briefing on those motions closed in February of 2013.

S.M's case followed a similar, but not identical, path. S.M. commenced this case on July 30, 2009, with an initial complaint. S.M. then filed an amended complaint on August 12, 2009. Evans moved to dismiss the amended complaint, and, on January 8, 2012, this Court denied that motion in all respects but one, finding in Evans' favor that P.M. should be dismissed as a plaintiff in his individual capacity. In that Decision, this Court also granted S.M. leave to filed a second amended complaint, which he did on January 12, 2012.

From there, the case took a familiar turn: Evans filed a motion for summary judgment (Docket No. 48); S.M. responded, indicating he would soon file his own motion; S.M. filed that motion (Docket No. 55); Evans filed another summary judgment motion (Docket No. 60); and S.M. moved to strike that motion (Docket No. 63).

Briefing on those motions also concluded in February of 2013, at which time this Court took the motions in each case under consideration.


A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact." A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co. , 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci , 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249. "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Rule v. Brine, Inc. , 85 F.3d 1002, 1011 (2d Cir. 1996).


Though there are a total of six summary judgment motions pending before the court (three in each case), there are but two related, and relatively straightforward, questions before this Court: Are Plaintiffs entitled to attorney fees? And if so, in what amount?

B. Plaintiffs' eligibility for attorney fees

The IDEA provides that "the court, in its discretion, may award reasonable attorneys' fees as part of the costs to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B)(I). Plaintiffs brought these tandem cases seeking such fees.[4] Defendant, however, raises various arguments in its motions for summary judgment contending that Plaintiffs should either not receive any fees, or should receive them in a severely reduced fashion. Each will be discussed in turn.

1. Prevailing-Party Status

As noted, the IDEA provides that attorney fees are available to a "prevailing party." Evans first argues that Plaintiffs, including P.P., are not entitled to fees because they are not "prevailing parties."

This is a bewildering argument considering that this Court, on Evans' motion to dismiss, has already ruled - unequivocally - that P.P. is a prevailing party. See P.P. v. Evans-Brant Central School District , 847 F.Supp.2d 466, 469 (W.D.N.Y. 2012) ("[T]his Court finds that Evans' contention that Plaintiffs should not be considered prevailing parties' is without merit."). This Court finds no cause to revisit that ruling.

Although this issue was not raised in S.M.'s case on the motion to dismiss, the ruling is equally applicable.

A "prevailing party" is "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, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). It is well settled in this Circuit that a "plaintiff who receives IHO-ordered relief on the merits in an IDEA administrative proceeding is a prevailing party, '" and that "he or she may therefore be entitled to payment of attorneys' fees under the IDEA's fee-shifting provisions." A.R. ex rel. R.V. v. New York City Dep't of Educ. , 407 F.3d 65, 75 (2d Cir. 2005). In S.M.'s case, the IHO found:

Given the violations here, including the failure to write appropriate goals, the failure to conduct an appropriate physical therapy evaluation, the failure to provide occupational therapy services, the failure to provide assistive technology services, the failure to provide speech and language services, the failure to provide behavioral interventions, and P.M.'s lack of progress for 2007-2008, the District has not shown that it has provided P.M. with a FAPE for 2007-2008.

(IHO Decision, June 2, 2008 at 20; Docket No. 55-9 of 09CV-686.) Thus, he ordered Evans to convene a meeting within 15 days to rewrite P.M.'s individual education plan, to provide for additional physical, speech, and language therapy, and to provide a complete behavioral intervention plan. (Id. at 27.) On Evan's appeal, the State Review Officer affirmed those findings.

These rulings firmly establish that S.M. was a "prevailing party" at the administrative level. Evans argument that somehow S.M. was not "awarded some relief by the court" is plainly belied by the record, and it is flatly rejected. See Alegria ex rel. Alegria v. District of Columbia , 391 F.3d 262, 267 (D.C. Cir. 2004) (party who prevails at the administrative level is the "prevailing party" even if administrative decision is no more favorable than settlement offer); T.D. v. LaGrange Sch. Dist. No. 102 , 349 F.3d 476 (7th Cir. 2003); John T. ex rel. Paul T. v. Delaware Cnty. Intermediate Unit , 318 F.3d 545, 557 (3d Cir. 2003).

2. Fee Arrangement

Evans next argues that the fee arrangement between Plaintiffs and their attorneys bars them from pursuing this action. The retainer agreement, signed by Plaintiffs, provides that Plaintiffs will not be responsible for any attorney fees and, in relevant part, that:

I agree not to waive or otherwise impair your ability to pursue recovery of the total fees and costs incurred in connection herein from a defendant on the basis of my being a prevailing party. However, I further understand that if I should decide to waive or otherwise impair the ability to pursue recovery of fees and costs from a defendant, including doing so as part of a settlement, I shall be personally responsible for the full payment of all the fees and costs incurred in connection herein.

(Retainer Agreement, ¶ 4, attached as "Attachment No. 9"; Docket No. 51-6.)

i. Obligation to Pay

Evans' first argument concerning the fee arrangement is that because the right to recover fees under the IDEA belongs to the Plaintiffs - not the attorneys - and because Plaintiffs never undertook any real obligation to pay attorney's fees, "there is no basis for awarding them anything." (Def.'s Br. at 2; Docket No. 48-8 of 9-CV-686).

But Evans points to no authority suggesting that a plaintiff must first pay legal fees, or become liable for their payment, before the plaintiff can pursue an action to ...

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