Case 2:06-cv MJP Document 30-1 Filed 12/21/2006 Page 1 of 12 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Transcription

1 Case :0-cv-00-MJP Document 0- Filed //00 Page of Hon. Marsha J. Pechman 0 0 J.L. and M.L., and eir minor daughter, K.L., Plaintiffs, UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE NO. :0-cv-00-MJP v. PLAINTIFFS MOTION FOR ATTORNEY FEES MERCER ISLAND SCHOOL DISTRICT, a municipal Washington corporation, Note on Motion Calendar: Defendant. January, 00 MOTION Plaintiffs were determined to be e prevailing party in is action and entitled to an award of attorneys fees pursuant to 0 U.S.C. (i)()(b) of e Individuals Wi Disabilities Education Act (IDEA), in e Order on Petition for Judicial Review, dated December, 00. The Plaintiffs move for an order requiring e Plaintiff Mercer Island School District (District) to pay attorney s fees in e amount of $,.0. This request is supported by e Declaration of Howard Powers, itemizing all attorneys fees for which an award is sought, e Declarations of David Girard, Charlotte Cassady and William L.E. Dussault, and e following brief. (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

2 Case :0-cv-00-MJP Document 0- Filed //00 Page of BRIEF 0 0 A. Plaintiffs Are e Prevailing Party The District has asked e court to reconsider its determination at Plaintiffs are e prevailing party and entitled to an award of attorney s fees, because Plaintiffs have yet to be awarded some form of relief, citing Hewitt v. Helms, U.S., 0 S. Ct. (). The District asks e court to postpone consideration of fees until e ALJ makes a specific determination of e relief to which e Plaintiffs are entitled. Plaintiffs will fully respond to e motion if e court decides to consider it and orders a response. Following is a brief explanation of why e District s motion should be denied. The plaintiff in Helms sought only damages, obtaining no relief because of official immunity. As e Court notes, he obtained only an interlocutory ruling and no injunction or declaratory judgment was entered in his favor. The Parents obtained a final determination at e District denied K.L. a free appropriate public education under e IDEA for and grade, failed to develop an appropriate IEP for e 0 grade (identifying specific areas at were omitted), and at K.L. is entitled to reimbursement and some form of compensatory education. While e specific nature of is relief will be determined on remand, under is court s order, Plaintiffs are assured of receiving some relief resulting from e District s denial of a FAPE. The amount of reimbursement or e form of any compensatory relief e Plaintiffs obtain does not effect eir right to recover attorney s fees. Farrar v. Hobby, 0 U.S. 0, -, S.Ct., () ( we hold at e prevailing party inquiry does not turn on e magnitude of e relief obtained. ) This was reaffirmed in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Heal & Human Res., U.S., 0, L. Ed. d, S. Ct. (00), defining a prevailing party as, Plaintiffs base e assertion at reimbursement is a component of remedies on e court s statement of its intent set for in e order on e Plaintiffs motion for reconsideration. Even if Landmark School were determined to be entirely inappropriate for K.L. and e Plaintiffs recovered no costs relating to K.L. s placement ere, e District would still be responsible for some alternative form of compensatory education. See Order, p., lines -, stating, Based on e Court s analysis and findings, some form of compensatory educational relief is owed to Parents and e minor student. (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

3 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 [a] party in whose favor a judgment is rendered, regardless of e amount of damages awarded...this view at a prevailing party is one who has been awarded some relief by e court can be distilled from our prior cases.... We have held at even an award of nominal damages suffices under is test. See Farrar v. Hobby, 0 U. S. 0 (). The Court furer noted at favorable judgment need not be entered on all (or even e most crucial) of... claims. Ibid. In a case involving e IDEA, e Nin Circuit held at, a party may be accorded prevailing party status by being awarded some relief by e court, even if only an award of nominal damages. Buckhannon, U.S. at 0-0; see also Me. Sch. Admin. Dist. No., F.d at (stating at a prevailing party must succeed on e merits of a claim or defense, but at a party may be considered 'prevailing' even wiout obtaining a favorable final judgment on all (or even e most crucial) of her claims). Shapiro v. Paradise Valley Unified School Dist., F.d, ( Cir. 00). For IDEA claims, monetary relief is not a prerequisite to prevailing party status. The IDEA expressly entitles parents to present complaints wi respect to any matter relating to e identification, evaluation, or educational placement of e child, or e provision of a free appropriate public education to such child. 0 U.S.C. (b)(). Each of ese matters affect a school district s legal obligations and student rights and a successful challenge confers prevailing party status. Pasatiempo v. Aizawa, 0 F.d, 0 ( Cir. ) (Attorney s fee awarded when only relief obtained was a determination at parents must be notified of and allowed to be involved in decisions about wheer to evaluate eir children for special education eligibility); Borengasser v. Arkansas Bd. of Educ., F.d ( Cir.) (Citing Abu-Sahyun v. Palo Alto Unified School Dist., F.d 0 ( Cir. ), in holding at a parent whose sole relief was an order enforcing a prior agreement requiring an IEP conference to be held before, raer an after, e start of e school year, was a prevailing party); N.S. v. Stratford Board of Education, F.Supp.d, (D.Conn. 000) (Relief involved blocking e district s plan to have e student placed in its preferred program and a determination at e district s IEP was deficient. The parents recovered no money and did not obtain placement in eir preferred school. [citing G.M. v New Britain Board of Educ. F.d (d Cir. ]). Nor does e relief obtained need to be e same as at initially sought. Krichinsky v. Knox (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

4 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 Cty Schools, F.d, 0 ( Cir. ) (Fees awarded for securing only a slight increase in speech erapy, despite failure to obtain eir primary goal of residential placement, or secondary goals of at-home behavior and extended school day programs; Noting at Hensley v. Eckerhart rejects e central issue test in favor of a generous formulation for prevailing party status); and Mitten v. Muscogee County School Dist., F.d ( Cir. ) (Parents who obtained determination at District program plan was inappropriate were prevailing party even ough ey failed to achieve eir objective of placing eir child in local school system). The recently-decided Park Ex Rel. Park v. Anaheim Union High School, F.d 0, 0- ( Cir. 00) demonstrates e Plaintiffs contentions concerning eir prevailing part status, holding at: () District courts have narrow discretion to deny fees when parents have been forced to litigate for years against school districts to obtain all or even part of what e Individuals wi Disabilities Education Act requires in e first place; () Plaintiffs need only succeed on any significant issue, which can include a determination at a district denied a student a FAPE for a period of time; () The prevailing party inquiry does not turn on e magnitude of e relief obtained (The only compensatory remedy ordered was a small amount of training of e student s teacher no services to e student or recovery of costs were ordered); () A prevailing party must succeed on e merits of a claim or defense, but a party may be considered prevailing even wiout obtaining a favorable final judgment on all (or even e most crucial) of her claims; and () Hewitt v. Helms is no bar to prevailing party status, Because [parents] chose to exercise eir rights under e Individuals wi Disabilities Education Act, e District was forced to reassess e objectives and plan for [student] s education and to provide for compensatory education to remedy its failure to provide a free and appropriate public education during several mons of his education. Nor are e issues on which Appellants prevailed merely technical; raer, ey go to e very essence of e Individuals wi Disabilities Education Act. The determination by e Hearing Officer and e district court at [student] was denied a free and appropriate public education for e extended school year and for September 00 rough November 00--even setting aside e oer issues on which Appellants prevailed--is e most significant of successes possible under e Individuals wi Disabilities Education Act. At e heart of e Act are e requirements at all disabled children receive a free appropriate public education... designed to meet eir unique needs and prepare em for furer education, (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

5 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 employment, and independent living, 0 U.S.C. 00(d)()(A), and at e education provided is effective in ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals wi disabilities, id. 00(c)(), (d)(). Plaintiffs recognize at ey will need to seek furer recovery of attorney s fees for time involved in obtaining a final ruling on e exact form of reimbursement/compensatory education. However, is does not mitigate eir right to recover fees based on e current Order. Deferring recovery of fees to which e Plaintiffs are already entitled is an unnecessary hardship on em. Finally, Plaintiffs are unaware of a settlement proposal at could have any bearing on e amount of eir fee recovery. If Defendant believes oerwise, it should produce it so e court can determine if it provides any possible basis to defer ruling on fees. B. The IDEA Entitles Prevailing Parents to Recover Fees for Work Their Attorney Performed During All Phases of These Proceedings The IDEA, 0 U.S.C. (i)(), provides for an award of attorneys fees to e parents of a child wi a disability who is e prevailing party, based on rates prevailing in e community in which e action or proceeding arose for e kind and quality of services furnished. Attorneys fees may be awarded for all work claimed, starting from before e administrative hearing rough e completion of proceedings in is court, including preparation of is fee claim. McSomebodies v. San Mateo City School Dist., F.d, 0 ( Cir. ) (Concerning fee awards under e IDEA, e court held, The overwhelming majority of cases now support fees from bottom to top. We decline to follow any of e minority. ); Barlow-Gresham Union High School District No. v. Mitchell, 0 F.d 0, ( Cir. ) (Fees awarded for pre-hearing work and in connection wi e fee application.). Attorneys fees for work starting from e time of initial representation rough work on e fee petition were awarded and affirmed in Seattle School Dist., No. v. B.S., F.d ( Cir. ). As is court recognized in setting anoer attorney s fee award, time spent prior to e actual request for a due process hearing is consistent wi e statutory scheme of e IDEA. The Act mandates considerable pre-hearing consultation by its requirement at e parents, in conjunction wi e District, develop educational and placement plans at involve complex legal procedures and educational issues. Actions taken during is developmental phase are highly determinative of e outcome of e hearing, and special education (continued...) (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

6 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 C. The Parents Are Entitled to Recover All Attorney s Fees Incurred. In Hensley v. Eckerhart, U.S., 0, 0 S.Ct., (), e Supreme Court held at e level of a plaintiff s success is relevant to e amount of fees to be awarded. However, success is not measured merely by dollars. Id., 0 S.Ct. at 0. The Supreme Court identifies as e relevant indicia of success -- e extent of relief, e significance of e legal issue on which e plaintiff prevailed, and e public purpose served. Farrar, 0 U.S. at. Plaintiffs prevailed on every claim, alough e extent to which costs of Landmark School may be recovered has yet to be decided. The fact at e Court s decision did not rely on every contention or basis e Plaintiffs put for to support e inappropriateness of e District s programs and IEPs does not warrant a fee reduction. In Hensley, U.S. at, 0 S.Ct at 0, e Court recognized at commonly, e plaintiff s claims for relief will involve a common core of facts or will be based on related legal eories. Much of counsel s time will be devoted generally to e litigation as a whole, making it difficult to divide e hours expended on a claim-byclaim basis. Such a lawsuit cannot be viewed as a series of discreet claims....in ese circumstances e fee award should not be reduced simply because e plaintiff failed to prevail on every contention raised in e lawsuit. The Court held at, a plaintiff who has won substantial relief should not have his attorney s fee reduced simply because e district court did not adopt each contention raised. U.S. at, 0 S.Ct at 0. The Plaintiffs obtained relief at materially altered e legal relationship between em and e District. The District must provide K.L. some form of compensatory relief. The determinations at e District denied K.L. a free appropriate public education for a period of time and failed to properly formulate her IEP affect e District s legal responsibilities to K.L. and her rights, and serve an important public purpose by clarifying public school district duties pertaining to (...continued) attorneys are required to begin preparations in advance of e due process hearing request. Furermore, awarding such fees provides a strong incentive to resolve conflicts prior to initiating such a hearing. The Nin Circuit confirmed at e Hensley analysis applies to IDEA fee claims in Aquirre v. Los Angeles Unified School District, F.d ( Cir. 00). In e experience of Plaintiffs counsel, is has always been assumed to be e case. Plaintiffs note at none of e Court did not reject any of e Plaintiffs contentions, while ose adopted provided ample basis to support e conclusions reached. (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

7 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 ese matters. The starting point of determining a reasonable fee is e number of hours reasonably expended multiplied by a reasonable hourly rate. A reduction from is calculation should be made only if documentation of hours is inadequate or for excessive or redundant hours. Hensley, 0 S.Ct. at. D. The Requested Attorney s Fees Are Reasonable in Amount The attorney s fee award sought in is matter is reasonable based on e factors set for in Kerr v. Screen Extras Guild, F.d, 0 ( Cir. ). Time and labor required. The time and attorney s fees attributable to various phases of is matter, itemized in e time sheet contained in e Appendix, are as follows: Phase of proceedings Time Fee Prior to drafting/filing hearing request.0,.00 (//0 - //0) Administrative hearing.,. (//0 - //0) Appeal/federal district court.0,.00 (//0 - //0) Attorneys fee motion/brief.,. (//0 - //0) Total:.0 $,.0 [Declaration of Powers, p. ] Time spent before e filing of e hearing request includes counsel becoming familiar wi K.L. s service and school history, her previous evaluations and IEPs, and oer pertinent facts, advocacy efforts to ensure K.L. s IDEA rights were protected, including her right to an independent educational evaluation, and efforts to determine wheer e parties agreed on K.L. s program needs. The Plaintiffs have not sought attorney s fees for time relating to e IEP meeting of March 00 (e only IEP meeting counsel attended), which are not recoverable under 0 U.S.C. (i)()(d)(ii); or to revising e Plaintiffs opening brief (and related motions), which inadvertently exceeded page limits. The twelve-day administrative hearing in is matter is e longest in which Parents counsel has ever been involved in many years of handling such cases. As e The hearing decision lists hearing dates, but omits October, 00, e day (see hearing (continued...) (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

8 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 comparisons below demonstrate, Plaintiffs attorney worked very efficiently during all stages of ese proceedings, wiout any duplication of effort. [Declaration of Powers, pp. -] Novelty and difficulty of e questions involved. This case involved difficult questions concerning K.L. s language, neuropsychological and educational disabilities and needs. It involved numerous, difficult legal issues relating to procedures, definitions, legislative/statutory history, and remedies under e IDEA. The case necessarily involved time consuming presentation of K.L. s lengy history of specialized educational services. [Declaration of Powers. p. ] Skill required to properly perform e legal services properly. Substantial expertise and skill was required to coherently present e factual and legal issues in is case. Adequate representation required a sufficient understanding of principles of education, neuropsychology, language paology and testing meodology to sort out e facts, conduct meaningful direct and cross-examination of expert witnesses and to articulate in writing e substance of e evidence. Mastery of e pertinent legal principles required an in-dep understanding of comprehensive federal and state statutes, regulations and policy rulings, as well as an ever-growing body of case law unique to e area of special education. Few attorneys in e area possess e requisite expertise to perform is work well. [Declarations of Powers. pp. -; Girard, p. ; Cassady, p., and Dussault, p. ]. Preclusion of acceptance of oer employment. The Parents attorney is a solo practitioner who was precluded from accepting oer employment requiring more an a limited commitment for a substantial portion of e time during e administrative hearing and work on briefing filed before is court. [Declaration of Powers, p. ]. See, Shapiro v. Paradise Valley Unified School Dist., F.d at (Fact at, as a solo practitioner, [attorney] was limited in his ability to accept oer employment, identified as a consideration in e amount of fees awarded). Reasonableness of e hourly rate sought/customary fee. The hourly rate of $ is reasonable for an attorney wi more an irty years of experience and unique expertise in a specialized area of practice. Plaintiffs contractual rate for work rough e administrative hearing (...continued) transcript, Vols. XIV & XVIII). (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

9 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 phase of e case (entries dated June, 00 - December, 00) was at e hourly rate of $00, and e hourly rate for work on e appeal was $ (entries dated January, 00 - present). Plaintiff attorney s current rate is $, which will be increased in 00 to $0. [Declaration of Powers, p. ] This rate is consistent wi e customary fee in is geographical area for attorneys experienced in disability education law. [Declarations of Girard, p., Cassady, p. ; and Dussault, p. ]. Plaintiffs are entitled to recover fees at eir attorney s currently effective rate, raer an a lower rate initially charged. P.L. v Norwalk Board of Educ., F.Supp.d (D.Conn. ) ( Inasmuch as is case is only two years old, and due to e paucity of special education attorneys in is state, e Court orders at e attorneys be compensated at e current, not historical, rate. ); Mr. and Mrs. R. v. Maine School Administrative District No., F. Supp. d (D. Me. 00) ( e Court finds at an adjustment to reflect e current hourly rate is appropriate. ) Compensation at currently effective rates also assists Plaintiffs counsel in his ability to represent low-income clients pro bono. This has increased in importance since fee recovery for cases settled short of judicial order has become more limited, which makes pro bono representation more costly on e whole. [Declaration of Powers, p. ] Amount involved and results obtained. As noted above, e precise amount of money and/or oer form of compensatory education e Plaintiffs will ultimately receive is not yet known. However, IDEA cases, like oer types of civil rights actions, often involve important rights and remedies at do not focus on large sums of money. The relief obtained vindicates important and valuable federal statutory rights. Experience and ability of e attorney. Parents attorney is experienced and capable. He has successfully litigated numerous IDEA cases. He is repeatedly asked to be a faculty at continuing legal education programs sponsored by e State Bar Association and e University of Washington and has been recognized by peers as an accomplished attorney in e area of education. [Declarations of Powers. pp., & ; Girard, p. ; Cassady, p. ; and Dussault, p. ]. Plaintiffs attorney s hourly rate was increased to $ soon after being engaged by e Plaintiffs, but he continued to bill at e lower rate rough e completion of work on e hearing. (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

10 Case :0-cv-00-MJP Document 0- Filed //00 Page 0 of 0 0 Undesirability of e case. Parents attorney did not view is case as undesirable. However, e lack of a sufficient numbers of attorneys in e area who are willing to accept IDEA cases due to eir difficulty, and e time, labor and specialized expertise required, indicates at attorneys generally do not view cases of is nature as being particularly desirable. [Declarations of Powers, p. ; Cassady, p. ; Dussault, p. ]. Awards in oer IDEA cases. The Plaintiffs claim for attorney s fees is reasonable when compared to fees awarded and recovered in oer IDEA cases in which e Plaintiffs attorney has been involved. In Seattle School District v. B.S., et al, Cause No. C- (W.D.Wa. ), fees for hours of work rough e administrative and district court appeal phase of e proceeding (involving significantly fewer hearing days an is case) were awarded and upheld by e Nin Circuit on appeal. Seattle School Dist., No. v. B.S., F.d ( Cir. ). In S.A. v. Seattle Sch. Dist. No., C0-R, counsel was awarded fees for hours of work on e administrative hearing and a district court appeal heard solely on e record. In S.A. v. Seattle School District No., Cause No. C-Z (not e same case as above), e District agreed to pay fees for 0. hours of work rough e administrative proceedings after e parents filed a complaint seeking fees upon e District s initial refusal to pay. In Issaquah School District, Spec. Ed. Cause No. 000-SE-000 (Wa. 00), e school district paid attorneys fees for 0 hours of work rough e decision in an IDEA administrative hearing wi no appeal. In Pamela B. v. Longview School Dist., Cause No. C0-B (W.D.Wa. ), e court awarded fees for 0 hours of work on briefing in e district court stage of an appeal heard solely on a significantly smaller administrative hearing record an at in is case. [Declaration of Powers. pp. -]. Fees recovered by oer local attorneys are comparable to or exceed ose claimed here. In e Matter of: Federal Way School District, Spec. Ed. Cause Nos. - & (Wa.), e school district paid attorneys fees in excess of $,000 for work on e administrative hearing. In Leetag v. Seattle School District, Cause No. C00-0R, e school district paid in excess of $0,000 in attorneys fees for work rough e completion of an IDEA administrative hearing. [Declaration of Dussault, pp. -] See also, Spec. Ed Cause Nos. 000-SE-0 (. hours spent on -day (:0-cv-00 MJP) Avenue East Seattle, WA (0) -

11 Case :0-cv-00-MJP Document 0- Filed //00 Page of 0 0 administrative hearing), and -SE- ($, recovered for -day administrative hearing). [Declaration of Cassady. p. ] Reported IDEA cases furer demonstrate e reasonableness of e Plaintiffs fee claim: Fees before administrative hearing held: Doucet v. Chilton County Board of Education, F.Supp.d, 0 (M.D.Ala ) (Fees awarded for hours expended for case settled before hearing held, and for 0 hours of work on fee claim in district court). Fees rough administrative proceeding: In P.L. v Norwalk Board of Educ., F.Supp.d (D.Conn. ), attorneys fees were awarded for. hours of work on an administrative proceeding wi no district court appeal. See also, Smi v. Roher, F. Supp., (D.D.C. ) (Attorneys fees in e amount of $,. awarded for work on administrative hearing rough dismissal of school district s appeal as moot); Arunim D. v. Foxborough Public Schools, 0 F.Supp., (D. Mass. ) (Attorneys fees in e amount of $0,0. awarded in fee claim action after parents prevailed at administrative level); C.G. v. New Haven Bd. of Educ., F.Supp. 0, (D. Conn. ) (Attorneys fees in e amount of $0,000 awarded after parents prevailed at administrative level, plus $,000 in fees for work on e fee claim); and Mass. Dept. of Public Heal v. School Committee, F.Supp., (D.Mass. ) (Attorneys fees in e amount of $,0 awarded for work including an administrative hearing and motions filed in e district court appeal, in a case settled before trial in district court). Fees for e district court phase of e proceedings: In Yaris v. Special School Dist. of St. Louis County, F.Supp., 00 (E.D.Mo. ), e court awarded $,.0 in attorneys fees for work in obtaining injunctive relief in district court, involving no fee claim for administrative proceedings); See also, Westendorp v. Independent School District No., F.Supp. d (D. Minn. 000) (fees of $,0 awarded for. hours of work solely in e federal court stage of an IDEA claim). (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -

12 Case :0-cv-00-MJP Document 0- Filed //00 Page of CONCLUSION The Supreme Court described e underlying congressional purpose of fee award statutes in civil rights actions as being to encourage compliance wi and enforcement of e civil rights laws. Washington v. Seattle School District No., U.S., 0 S.Ct., 0, n., L.Ed.d (). See also Barlow-Gresham Union High School D. v. Mitchell, 0 F.d at ( Attorney fees awards are not designed to penalize defendants, but are raer to encourage individuals to seek judicial relief. ). The fee award sought in is motion is reasonable and fosters e intended purposes of e IDEA s fee shifting statute. 0 st Dated is Day of December, 00 s/ WSBA # Attorney for Plaintiffs Avenue East Seattle, WA -00 Telephone: (0) - hcpow@msn.com 0 (:0-cv-00 MJP) - - Avenue East Seattle, WA (0) -