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UNITED
STATES DISTRICT COURT
FOR
THE
DISTRICT
OF CONNECTICUT
Mrs. D., on
her own behalf
and as mother of John D.,
Plaintiff,
CIVIL ACTION NO.
V.
3:96cv00469 (AHN)
October 17, 1996
George Apuzzi,
Superintendent of Stafford Public
Schools
THE STAFFORD
BOARD OF EDUCATION
Defendants.
MEMORANDUM
IN SUPPORT OF
PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Mrs.
D. is seeking to recover attorneys' fees as the prevailing party
in a special education due process hearing filed on behalf of her
son, John D., a disabled student. As the prevailing party, Mrs.
D. is entitled to attorneys' fees and costs under the Individuals
With Disabilities Education Act (IDEA), 20 U.S.C. §1415 (e)(4)(B).
On May 12, 1995, Mrs. D. requested a special education due process
hearing after the defendant Board failed to provide a free appropriate
public education to her son in accordance with the IDEA, 20 U.S.C.
§1401 et. seq.; the Rehabilitation Act of 1973, 29 U.S.C.
§794 et. seq., and Conn. Gen. Statutes 10-76(d) et. seq.
On January 9, 1996, at the conclusion of that hearing, State of
Connecticut Due Process Hearing Officer Susan R. Carlson issued
an order containing a Stipulated Agreement, to which both parties
had agreed on the final day of the hearing. In that Stipulation,
the defendants agreed to all of Mrs. D.'s original hearing issues.
The parties further agreed to address the issue regarding attorneys'
fees and costs separately. Consequently, after the parties signed
the Stipulation, Mrs. D. requested reasonable costs and fees from
the defendant Board of Education. Unfortunately, the Board failed
to respond to either letter sent by Mrs. D.'s counsel regarding
fees and costs, leading to the instant action.
II. FACTUAL
SUMMARY
John D. was a fifteen
year old disabled child at the time the events leading to this case
occurred. He had been diagnosed with asthma and chronic attacks
of bronchitis by his pediatrician during the 1994-1995 school year.
(P-59, P-60 Appendix A)
. Although John's
medical condition caused him to miss fifty-seven (57) days of school,
the Board failed to refer him to a Planning and Placement Team (PPT)
meeting to determine if he should be identified as needing special
education services, as mandated by both state and federal law. See
IDEA, 20 U.S.C. §1412(5)(C); 34 C.F.R. §300.530-533, the Rehabilitation
Act of 1973, 29 U.S.C. §794 et. seq., 34 C.F.R. 104.35; CGS
10-76-(d)6. Despite John's illness, the Board removed John's academic
credit due to his absenteeism, rather than referring him to a PPT
to develop a plan addressing his educational needs. (P-45, P-47).
After the defendant
removed John's credits, he became depressed and refused to attend
school. (P-50). Mrs. Dobson then retained counsel and a PPT was
convened on May 12, 1996. (P-55). At that meeting Mrs. Dobson requested
that John be identified as an "other health impaired"
student under Section 504 of the Rehabilitation Act. (P-55). When
John's PPT failed to identify him as disabled, Mrs. D. filed a request
for due process. (P-55, P-50, P-58).
In her hearing
request, Mrs. D. stated that the defendants had failed to evaluate
John for special education identification, failed to identify John
as a special education student, and inappropriately removed school
credit after John's disability caused numerous absences. (P-50).
Mrs. D. also requested that defendants reimburse her for psychological
services and provide compensatory education to John. (Id).
On June 12, 1995
State of Connecticut Hearing Officer Susan A. Carlson convened a
special education due process hearing to address the issues in dispute.
(Hearing Decision; Appendix B). At that time, the Board agreed to
commission independent educational and psychological evaluations
of John and to provide tutoring for John during the summer of 1995.
(Id).
The hearing reconvened
two additional times, on October 18, 1995 and January 9, 1996. The
parties also attended three additional PPT meetings scheduled during
the course of the hearing to attempt to settle the case. (P-76,
P-81, P-82). Additionally, the hearing officer convened two telephone
conference calls on September 7, 1995 and October 27, 1995 as well
as an additional telephone conference on the record, on December
14, 1995. (Hearing Decision, p. 2; Appendix B.). After the telephone
conference, the hearing officer issued an Interim Order. (Id.)
The hearing convened for the final time on January 9, 1996. On this
date, the parties signed a stipulation favoring Mrs. D., and entered
it into the record at the hearing. (Id.) In the stipulation,
the defendant Board agreed to all of Mrs. D's requests set out in
the May 12, 1995 hearing request. (Id.). Specifically, the
defendant Board agreed to identify John as an other health impaired
student, that he was entitled to a free appropriate public education
under the IDEA and to accommodations under Section 504 of the Rehabilitation
Act of 1973, and Connecticut Agency Regulations, that they would
provide written documentation of John's current credit status, reimburse
Mrs. D. for the $700.00 spent on psychological counseling with Dr.
H. for John during the 1994-1995 school year and to continue to
provide tutorial to John as compensatory education through the 1995-1996
school year. (Id). Additionally, in the stipulation, the
Board agreed to develop an academic and counseling Individual Education
Program for John, provide counseling to him, reimburse Mrs. D. for
education related expenses, and provide and fund the independent
evaluations completed during the hearing. (Id.). The parties
also agreed that nothing in the stipulated agreement should be construed
as a waiver of the parent's right to seek attorney's fees. (Id).
On January 17,
1996 pursuant to the Individuals with Disabilities Education Act
and on behalf of Mrs. D., Connecticut Legal Services requested payment
of attorney's fees and costs totalling $13,008.75 from the Stafford
Board of Education. (Appendix C). The request included detailed
contemporaneous time records regarding the time Mrs. D.'s attorneys
spent representing her. (Id). This figure included sixty-two
hours and forty-five minutes (62.45) expended by Attorney Blanchard
at $145.00 hour, and approximately thirty-nine hours at $125.00
per hour for the time expended by Attorney Tuller, with travel time
billed at fifty percent of the regular hourly rate. (Id.).
The figure also included twenty-five dollars and seventy-five cents
($25.75) expended in costs associated with the hearing. (Id.).
On February 15,
1996 Hearing Officer Carlson issued her Final Decision and Order,
adopting Sections 1-14 of the Stipulated Agreement as her Final
Decision and Order, excluding paragraphs 12 and 15, over which she
had no jurisdiction. (Appendix B). On March 5, 1996 Mrs. D., through
counsel, again requested attorneys' fees from the Stafford Board
of Education. (Appendix D). Mrs. D. filed the instant case after
she received no response from the Board regarding attorney's fees
and costs.
III. LEGAL ARGUMENT
A. Standard
of Review
- Summary Judgement
Is Appropriate In Cases Under The Individuals With Disabilities
Education Act (IDEA).
Summary judgement is the embodiment of a policy of the federal
judiciary favoring efficient resolution of disputes.
"Summary judgement procedure is properly regarded not as
a disfavored procedural shortcut, but rather as an integral part
of the Federal Rules as a whole...Rule 56 must be construed with
due regard not only for the rights of persons asserting claims
and defenses that are adequately based in fact...but also, for
the rights of persons opposing such claims and defenses to demonstrate
in the manner provided by the Rule, prior to trial, that the claims
and defenses have no factual basis." Celotex Corp. v.
Catrett, 477 U.S. 317, 327; 106 S. Ct. 2548, 2555; 91 L. Ed.
2d 265, 276 (1986).
In deciding a motion
for summary judgement, the court must decide whether there is a
genuine issue of material fact and then inquire into whether the
moving party is entitled to summary judgement as a matter of law.
F.R.C.P. Rule 56(e); Celotex Corp. v. Catrett, 477 U.S. 317,
322; 106 S. Ct. 2548, 2552; 91 L. Ed. 2d. 265 (1986). Once the moving
party has carried its burden of establishing the absence of a genuine
issue of material fact, however, "its opponent must do more
than simply show that there is some metaphysical doubt as to material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
475 U.S. 574, 586, 106 S. Ct. 1348, 1356; 103 L. Ed. 2d 866 (1986).
Thus, if the non-movant's evidence is "merely colorable"
or is "not significantly probative," the court may grant
summary judgement. Anderson v. Liberty Lobby, Inc. 477 U.S.
242, 249-50, 106 S. Ct. 2505, 2511; 91 L. Ed. 2d. 202 (1986).
Moreover, even
where there is a mixed question of law and fact in the motion for
summary judgement, the court can decide those issues since "[c]ases
brought under 20 U.S.C. §1415(e) are unusual in that an ample administrative
record is placed before the district court for review." Bertolucci
v San Carlos Elementary School District, 721 F. Supp. 1150,
1153 (N.D. Cal. 1989); see also Mavis v. Sobol, 839
F.Supp. 968, 987 n.32 (N.D.N.Y. 1993).
Numerous circuit
and district courts have granted summary judgment motions in cases
involving IDEA. In fact, "[n]othing in the language or legislative
history of the EHA [IDEA] precludes a court from deciding appeals
on the basis of summary judgment." Vander Malle v. Ambach,
667 F. Supp. 1015, 1033 (S.D.N.Y. 1987), modified on other grounds,
667 673 F.2d 49 (1982; see also Victoria L. By Carol A.
v. District School Board of Lee County, Florida, 741 F.2d 369,
372-373 (11th Cir. 1984). Moreover, this court also has granted
motions for summary judgment in IDEA cases. See Ivan P.
v. Westport Board of Education, 865 F. Supp. 74, 83 (D. Conn.
1994); E.H. v. Tirozzi, 735 F. Supp. 53, 59 (D. Conn. 1990).
Like many other
IDEA cases, in the instant case, the court has the authority to
grant summary judgment in any and all issues where the court finds
no genuine issue of material fact exists. Summary judgment is especially
appropriate in this case where the parties have signed a stipulated
agreement and this matter is only before the court due to defendants'
refusal to pay plaintiff's fees and costs.
B. As The Prevailing
Party, Plaintiff Are Entitled To An Award of Attorneys' Fees.
Under the Individuals
with Disabilities Education Act (IDEA), the court may award attorney's
fees to the prevailing party in any action or proceeding brought
under the Act. 20 U.S.C. § 1415(e)(4)(B). A special education hearing
is considered a proceeding under IDEA, thus the prevailing party
at a hearing is entitled to a fees award. "The clear language
of section 1415(e)(4)(B) contemplates an award of attorneys' fees
at the administrative level." Barlow-Gresham Union High
School v. Mitchell, 940 F.2d 1280, 1284 (9th Cir. 1991).
In 1989, the Supreme
Court defined the standard for determining whether a party has prevailed
in an action under 42 U.S.C. §1988 in Texas State Teachers v.
Garland Independent School District, 489 U.S. 782, 785; 109
S. Ct. 1486, 1492; 103 L. Ed. 2d. 866 (1989). Justice O'Connor,
writing the majority opinion, cited the First Circuit case of Nadeau
v. Helgemoe as enunciating the prevailing party standard correctly.
Texas State, 489 U.S. at 791, 109 S. Ct. at 1486, citing
Nadeau, 581 F.2d 275, 278-279 (1st Cir. 1978). In Texas
State, Justice O'Connor wrote that "[i]f the plaintiff
has succeeded on `any significant issue in litigation which achieve[d]
some of the benefit the parties sought in bringing the suit,' the
plaintiff has crossed the threshold to a fee award of some kind."
Texas State, 489 U.S. at 791-792, 109 S. Ct. 1486 citing
Nadeau, 581 F.2d at 278-279. Although the Supreme Court was
referring to §1988 cases, other courts have adopted this reasoning
to apply to attorney's fees cases brought under the IDEA. See
Angela L. v. Pasadena Independent School District, 918 F.2d
1188, 1193-1194 (5th Cir. 1990).
Additionally, "[w]hen
enacting the HCPA [Handicapped Children's Protection Act], Congress
intended that the same standard in effect for cases brought under
§1988 should be applied under the IDEA." Legal Rights of
Persons with Disabilities, Bonnie P. Tucker and Bruce A. Goldstein
(1992) p. 17, 18 citing 1986 U.S. Code Cong. and Admin. News
1808.
In general, a plaintiff
is entitled to attorney's fees once she has recovered some relief
on the merits at the administrative level. See Farrar
v. Hobby, 506 U.S. 494, 121 L.Ed. 2d 494, 113 S.Ct. 566 (1992).
Additionally, the amount of the fee award should be reasonable and
it should reflect the success of the party. Hensley v. Eckerhart,
461 U.S. 424, 434, 436; 103 S. Ct. 1933, 1939-1941; 76 L. Ed. 2d.
40 (1988). In calculating the fee award, a court should look to
the number of reasonable hours necessary for appropriate representation,
multiplied by a reasonable hourly rate. Id at 433; Angela
L., 918 F.2d at 1197.
In John D.'s case,
Mrs. D. requested the hearing to address identification, compensatory
education, fiscal reimbursement for education expenses, and credit
issues. At the conclusion of the hearing, Mrs. D. gained identification
of John as a special education student, received compensatory education,
received reimbursement, and the defendant agreed to restore John's
credits once his tutorial was completed. (Appendix B).
Thus, given the
clear success of Mrs. D. at the due process hearing, she certainly
is able to "...point to a resolution of the dispute which changes
the legal relationship between [herself] and the defendant."
Texas State Teachers et. al, 489 U.S. at 792; 109 S. Ct.
at 1493; 103 L. Ed. 2d. 866 (1989). The fee amount requested is
reasonable considering the fact that the parents' counsel had to
prepare several times for a lengthy hearing, although that hearing
eventually settled. See Grinsted v. Houston County,
826 F.Supp. 482, 486 (1993) awarding $37,000. to plaintiff; Kerry
B. v. Union 53 Public Schools, 882 F.Supp. 184, 190 (D. Mass
1995) awarding over $15,000.
Additionally, the
requested hourly rates of $125.00 and $145.00 are not only reasonable
but are in fact low, given the experience level of Attorneys Tuller
and Blanchard, when compared with the prevailing rate in the community.
[See Affidavit of Attorneys Tuller and Blanchard, Appendix
E]. Moreover, the current prevailing rate for special education
attorneys in the community range from between $150.00 and $225.00
per hour, according to recent District Court decisions. Judge Alvin
Thompson, for example, recently awarded Attorney David Shaw $225.00
an hour in Nicholas G. v. Ellington Board of Education, Civ.
No. 3:93cv1351(ACT). (Appendix F). Judge Dominic Squatrito also
recently adopted a Recommended Ruling which awarded fees between
$150.00 an hour and $175.00 an hour for two Connecticut Legal Services
attorneys in a special education case. (Appendix G).
Ultimately, Mrs.
D. prevailed on every substantial issue for which she requested
the hearing. "Where a plaintiff has obtained excellent results,
his attorney should recover a full compensatory fee." Hensley,
461 U.S. at 435; 103 S. Ct. at 1940; 76 L. Ed. 2d. 40 (1983). Thus,
in reviewing these factors, the court should find plaintiff is entitled
to attorney's fees and costs as the prevailing party and should
order them awarded as part of this court's order.
IV. CONCLUSION
The plaintiff has
established that there is no genuine issue of material fact to be
tried. The Defendants have signed a Stipulated Agreement which granted
the parent all the claims for which she had originally filed the
hearing. The Board didn't appeal this decision but rather has simply
failed to respond to the parent's request for fees.
Given these facts,
this court should review the evidence in this case and find as a
matter of law that the plaintiff is entitled to summary judgement
on all her claims.
Plaintiff
By
Anne Louise Blanchard
Connecticut Legal Services, Inc.
P.O. Box 258
872 Main Street
Willimantic, CT 06226
Tel. (860) 456-1762
Fed. Bar. No. ct08718
CERTIFICATION
I hereby certify
that a copy of the foregoing Memorandum in Support of Plaintiff's
Motion for Summary Judgment was mailed, postage prepaid on this
day of October, 1996 to:
Michael P. McKeon,
Esq.
Law Offices of
Sullivan, Schoen, Campane & Connon, LLC.
646 Prospect Avenue
Hartford, CT 06105-4286
Anne Louise Blanchard
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