Prepared by: Karen Norlander, Esq. Special Counsel Girvin & Ferlazzo, P.C. New York State Bar Association CLE Special Education Update, Albany NY

Transcription

1 Prepared by: Karen Norlander, Esq. Special Counsel Girvin & Ferlazzo, P.C. New York State Bar Association CLE Special Education Update, Albany NY November 22, 2013

2 HISTORY The purpose of the Civil Rights Attorney's Fees Awards Act is to ensure effective access to the judicial process for persons with civil rights grievances, and accordingly, a prevailing plaintiff should ordinarily recover an attorney fee unless special circumstances would render such an award unjust. 42 U.S.C Plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.' " Hensley v. Eckerhart, 461 U. S. 424, 433 (1983). [a] request for attorney's fees should not result in a second major litigation," Hensley at 435. Indeed, "the most critical factor" in determining the reasonableness of a fee award "is the degree of success obtained." Farrar v. Hobby, 506 US 103 (1992). Prevailing Party : Death of the catalyst theory birth of the judicial imprimatur Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 US 598 (2001).

3 IN ANY ACTION OR PROCEEDING BROUGHT UNDER THE IDEA, THE COURT MAY, IN ITS DISCRETION, AWARD REASONABLE ATTORNEYS FEES TO THE PREVAILING PARTY: Who is the parent of the child with a disability; Who is an SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is: frivolous, unreasonable, or without foundation OR who continues to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; Or against the parents attorney or the parent if: The parent s complaint or subsequent cause of action was presented for any improper purpose, (such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. The parent s complaint or subsequent cause of action was presented for any improper purpose, (such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. 20 U.S.C. 1415(i)(3)(B); 45 C.F.R

4 ESTABLISHING PREVAILING PARTY STATUS Did the party prevail on a significant issue in the litigation that achieves some of the benefit sought in bringing the litigation? Did the resolution constitute a change in the legal relationship of the parties.; and Is the decision Judicially Sanctioned? The Supreme Court discards the catalyst theory and requires that the decision or order by judicially sanctioned and so ordered. Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep t of Health & Human Resources, 532 U.S. 598 (2001)

5 BUCKHANNON PRINCIPLES APPLY TO IDEA.administrative imprimatur sufficient to award attorneys fees while a settlement not so ordered by the hearing officer would effectively reinstate the catalyst theory. J.C. ex rel. Mr. & Mrs. C. v. Reg l Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, (2d Cir. 2002). [T]he combination of administrative imprimatur, the change in the legal relationship of the parties arising from it, and subsequent judicial enforceability, renders a party prevailing party status under Buckhannon 's principles. A.R. ex rel. R.V. v. New York City Dep't of Educ., 407 F.3d 65, 76 (2d Cir. 2005). Rule: Regardless of the degree of success, a settlement agreement that does not provide the imprimatur of the hearing officer or the courts does not impart prevailing party status. Id.

6 RELIEF REQUIRED TO ATTAIN PREVAILING PARTY STATUS A plaintiff who wins nominal damages is a prevailing party however a technical victory may be so insignificant... as to be insufficient to support prevailing party status." A purely technical or di minimus victory does not qualify. Farrar v. Hobby, 506 US 103 (1992). B.W. ex rel. K.S. v. New York City Dept. of Educ., 716 F.Supp.2d 336, (S.D.N.Y. 2010); J.G. v. Kiryas Joel Union Free Sch. Dist., 843 F. Supp. 2d 394, 396 (S.D.N.Y. 2012). Order to develop a new IEP that provided greater benefits than proposed in the initial IEP was not di minimus relief even when the specific placement initially sought was denied. Order directing a new IEP to replace a deficient one is not di minimus even though the IHO did not order the child s placement in the general education classroom sought.

7 THE TWO PART TEST FOR AWARDING ATTORNEYS FEES The court must first determine whether the party seeking the award is a prevailing party. If determined a prevailing party, the court must then determine whether, under the appropriate standard, that party should be awarded attorney's fees. K.L. v. Warwick Valley Cent. Sch. Dist., 12 CIV DLC, 2013 WL (S.D.N.Y. Sept. 5, 2013).

8 CALCULATING THE REASONABLE ATTORNEYS FEE THE LODESTAR The number hours reasonably expended on the litigation X A reasonable hourly rate = Reasonable Attorneys Fee Blum v. Stenson, 465 U.S. 886, 887 (1984).

9 DETERMINING A REASONABLE FEE AWARD The degree of the plaintiff's overall success goes to the reasonableness" of a fee award. Hensley v. Eckerhart, 461 US 424, 435(1983). The Degree of Success Obtained is the SINGLE most important factor and requires an analysis of the quantity and quality of relief obtained compared to what the parents sought to achieve as evidenced by their complaint. Hensley at 435. In some circumstances, even a plaintiff who formally "prevails" under 1988 should receive no attorney's fees at all. Farrar v. Hobby, 506 US 103 (1992).

10 FINDING THE MARKET RATE The Second Circuit refers to the Johnson Factors to approximate the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. The time and labor required; The novelty and difficulty of the questions; The level of skill required to perform the legal service properly; The preclusion of employment by the attorney due to acceptance of the case; The attorney s customary hourly rate; Whether the fee is fixed or contingent; The time limitations imposed by the client or the circumstances; The amount involved in the case and the results obtained; The experience, reputation and ability of the attorneys; The undesirability of the case; The nature and length of the professional relationship with the client; and Awards in similar cases. Arbor Hill Concerned Citizens Neighborhood Ass n v. Cnty. of Albany and Albany Cnty. Bd. of Elections, 522 F.3d 182, 184 (2d Cir. 2007).

11 THE MARKET RATE AND MUST bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. Arbor Hill, 522 F.3d at E.S. v. Katonah Lewisboro Sch. Dist., 796 F. Supp. 2d 421, (S.D.N.Y. 2011) aff'd sub nom. E.S. ex rel. B.S. v. Katonah Lewisboro Sch. Dist., 2012 WL (2d Cir. July 6, 2012).

12 DETERMINING REASONABLE HOURS Whether a case was particularly complicated or involved any significant legal issues may be considered in determining the reasonable number of hours a case requires. The novelty and complexity of a case... presumably are fully reflected in the number of billable hours recorded by counsel. District courts have ample discretion in assessing the amount of work that was necessary to achieve the results in a particular case. Severability of Claims Where success is limited and the failing claims are unrelated and severable, fees will only be awarded for time spent on successful claims Nonseverable claims are inextricably intertwined and: Involve a common core of facts; or Are based upon related legal theories.

13 ESTABLISHING THE MARKET RATE Affidavits from other attorneys Courts have rejected attorney affidavits to support fee claims that do not establish that the fees charged were actually paid. The applicable rate is the rate in place at the time the action for fees is filed. Travel time generally half of the attorney s hourly rate.

14 A GLANCE AT THE RANGE OF ATTORNEYS FEE AWARDS UNDER IDEA OCTOBER 2013 S.D.N.Y. $475 highest rate awarded to date in a straight forward IDEA case where the attorney had 30 years of experience in complex civil rights litigation; Court awards $415 an hour to a highly experienced attorney J.S. ex rel. Z.S. v. Carmel Cent. Sch. Dist., 501 F. App'x 95, 99 (2d Cir. 2012); $350 an hr. to managing attorney with fourteen years of experience litigating civil rights cases. E.S. v. Katonah Lewisboro Sch. Dist.,796 F.Supp.421,430 (S.D.N.Y.2011); N.D.N.Y. $275 an hour in an IDEA case handled by a highly experience IDEA attorney. (Apr. 29, 2013); $250 an hour found in line with prevailing rates in the relevant community for the kind and quality of services furnished. (Mar. 20, 2013); and W.D.N.Y. $ 295 an hour for experienced IDEA attorneys (July 31, 2013).

15 MAKING A CLAIM Documentation Required The fee applicant bears the burden: Contemporaneous Records required that specify for each attorney, the date, the hours expended, and the nature of the work done. Entries that are vague, lacking in detail or confusing may be reduced. General entries for legal research, review of transcripts, client conferences, work on discovery documents, and the like, without further specifics have been denied. Excessive, redundant or unnecessary hours spent are not compensable. Courts may use across the board percentage cuts in hours, unnecessary, item by item accounting of hours disallowed. instead of

16 ATTORNEYS FEES PROHIBITED 20 U.S.C. 1415(i)(3)(D) Attorneys fees may not be awarded and related costs may not be reimbursed in any action or proceedings for services performed subsequent to the time of a written offer of settlement to a parent if The offer is timely: Adopts Rule 68 timeline in litigation For administrative proceedings anytimemorethan10daysbeforethe hearing begins; The offer is not accepted within 10 days; and The court finds that the relief finally obtained by the parents is not more favorable than the offer of settlement.

17 THE EXCEPTION TO THE RULE 20 U.S.C. 1415(i)(3)(D) When the school district unreasonably protracted the final resolution of the action or proceeding or violated the IDEA..

18 ATTORNEYS FEES PROHIBITED 20 U.S.C. 1415(i)(3)(D) For attendance at IEP Meetings Exception: meeting was convened as a result of an administrative proceeding, judicial action, or for mediation at the discretion of the State. Resolution Sessions are not considered a meeting convened as a result of an administrative hearing or judicial action; or an administrative hearing or judicial action.

19 What if: The relief is slightly more favorable? Plaintiff can defeat the IDEA's settlement bar by obtaining an order at all more favorable. In such cases, the degree of success beyond what was offered will affect the amount of fees awarded for work performed after the offer of settlement

20 FEE REDUCTIONS AUTHORIZED 20 U.S.C. 1415(i)(3)(F) The parent or parent s attorney, unreasonably protracted the final resolution of the controversy The amount of the attorneys fees sought unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience ; The time spent and legal services furnished were excessive considering the nature of the action or proceeding; or The attorney representing the parent did not provide to the appropriate information in the parents complaint. Exception: (20 U.S.C. 1415(i)(3)(G)). Where the state or LEA unreasonably protracted the final resolution of the action or proceedings or violated the law.

21 AVAILABILITY OF FEES Expert Witness Fees Pendency without More Multiple Attorneys Long Distance Travel

22 REFLECTIONS ON DETERMING A REASONABLE FEE In determining a reasonable fee the Second Circuit reminds courts to bear in mind that a reasonable paying client wishes to spend the minimum necessary to litigate the case effectively. Arbor Hill Concerned Citizens Neighborhood Ass n v. Cnty. of Albany and Albany Cnty. Bd. of Elections, 522 F.3d 182, 184 (2d Cir. 2007).

23 A WORD ON RETAINERS Defendant (school district) lacks standing to raise issues involving retainer agreements and alleged violations of the New York Rules of Professional Conduct. S.M. v. Taconic Hills Cent. Sch. Dist., No. 1:09 CV 1238 LEK/RFT, 2012 WL (N.D.N.Y. Sept.10, 2012); S.M. v. Evans Brant Cent. Sch. Dist., 09 CV 686S, 2013 WL (W.D.N.Y. July 31, 2013.

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