Memorandum in Support of Plaintiff’s Motion For Summary Judgment

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

1. 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, 18citing 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