STEFAN R. UNDERHILL, United States District Judge.
This is an action seeking attorneys' fees and costs incurred during administrative proceedings under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415, et seq. Those proceedings were held at the request of the plaintiff parents to challenge the special education program offered to their child by the defendant, Stratford Board of Education (the "Board"). After 26 days of hearings, the hearing officer issued a final order. Plaintiff then brought this action, claiming to be a prevailing party entitled to an award of fees and costs under the IDEA.
The matter was referred to Magistrate Judge Donna F. Martinez for rulings on plaintiff's Motion For Summary Judgment (doc. # 17), Supplementary Motion For Costs And Fees Subsequent To January 22, 1999 And For Revised Costs (doc. # 31), and Supplementary Motion For Costs And Fees Subsequent To June 10, 1999 Supplementary Motion (doc. # 38). On September 30, 1999, Judge Martinez issued a Recommended Ruling On Pending Motions ("Recommended Ruling") (doc. # 43) in which she recommended granting in part plaintiff's motion for summary judgment and supplementary motions for costs and fees.
Presently pending are Defendant's Objection To Magistrate's Recommended Ruling On Pending Motions ("Objection") (doc. # 47) and plaintiff's Supplementary Motion For Costs And Fees Subsequent To September 30, 1999 Recommended Ruling (doc. # 50). For the reasons given below, the Objection is overruled, the Recommended Ruling is adopted and accepted, and the pending supplementary motion for costs and fees is granted.
Objection to Recommended Ruling
The Board timely filed its Objection to the Recommended Ruling. When an objection to a Magistrate Judge's recommended ruling on a dispositive motion has been filed by any party, the Court must "make a de novo determination of those portions of the proposed decision to which objection is made, and may accept, reject, or modify the recommended ruling in whole or in part." Rule 2(b), Local Rules for United States Magistrate Judges; see Fed.R.Civ. p. 72; 28 U.S.C. § 636 (b)(I)(B).
The Board raised five "central" objections to the Recommended Ruling. These can be divided into objections based upon the claimed existence of a genuine issue of material fact and an objection based upon a perceived misapplication of the standard for awarding attorneys' fees to prevailing parties.
A. Undisputed Material Facts
Four of the Board's five central objections turn on a claim that facts relied upon by Judge Martinez in the Recommended Ruling were disputed. Those objections lack merit.
These objections, labeled by the Board as errors of law, are:
(1) The Magistrate's Recommended Ruling fails to deal with the dispute of fact between the parties regarding the central purpose for the parents' due process hearing request, instead finding that "there are no genuine issues of fact."
(2) * * * *
(3) The Magistrate's Recommended Ruling conflates the hearing officer's finding that the IEP was procedurally defective with a finding (never made by the hearing officer) that the program and placement offered by the Board for the 1997-98 school year was inadequate.
(4) The Magistrate's Recommended Ruling adopts the characterization of the parents and finds as a matter of undisputed fact that after the hearing, N. was placed in a wholly different program from that proposed before the due process hearings without an acknowledgement that this characterization is strongly disputed by the Board through the affidavit of Dr. Vespe.
(5) The Magistrate's Recommended Ruling finds as a matter of undisputed fact that the hearing officer could not order a specific IEP following the due process hearing because "of the Board's failures up to that point," ignoring the hearing officer's findings regarding the completion of the evaluation process.
Objection at 3-4.
For purposes of the summary judgment motion, the facts relied upon by Judge Martinez were undisputed because the Board failed to file a statement of disputed material facts, as required by the Local Rules. Under Rule 9(c) of the Local Rules of Civil Procedure, a party filing a motion for summary judgment must file a Local Rule 9(c)1 Statement, setting forth "in separately numbered paragraphs a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried." Significantly, the Rule also provides that: "All material facts set forth in said statement will be deemed admitted unless controverted by the statement required to be served by the opposing party in accordance with Rule 9(c)2." (Emphasis supplied.) Rule 9(c)2 provides, in relevant part, that the papers opposing a motion for summary judgment must include a statement "whether each of the facts asserted by the moving party [in its Rule 9(c)1 Statement] is admitted or denied. [And] . . . must also include in a separate section a list of each issue of material fact as to which it is contended there is a genuine issue to be tried." L.R. Civ. P. 9(c)2.
The Board did file an affidavit of Dr. Angelo Vespe several weeks after filing its brief in opposition to the motion for summary judgment. That affidavit was before Judge Martinez when she issued her Recommended Ruling.
Although Judge Martinez did not expressly state that she relied upon the plaintiff's uncontroverted Rule 9(c)1 statement as setting forth the undisputed facts, a comparison of the Recommended Ruling with the Rule 9(c)1 statement demonstrates that she did so. That reliance was appropriate. See Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984) (facts set forth in statement of undisputed facts were properly deemed admitted given opposing party's failure to file local rule statement of disputed material facts; entry of summary judgment appropriate); Booze v. Shawmut Bank, Connecticut, 62 F. Supp.2d 593, 595 (D. Conn. 1999) (all facts in Rule 9(c)1 statement deemed admitted given failure to file timely Rule 9(c)2 statement). One important purpose of Local Rule 9(c) is to direct the court to the material facts that the movant claims are undisputed and that the party opposing the motion claims are disputed. Otherwise the court is left to dig through a voluminous record, searching for material issues of fact without the aid of the parties. Although the Board has attempted to identify, material issues of fact in its Objection, that effort is unavailing.
The Board repeatedly complains that Judge Martinez "found" certain facts "without citation" to the record. E.g., Objection at 7, 9, 10, 13-14. In each instance, the undisputed fact relied upon by Judge Martinez is set forth either in plaintiff's Rule 9(c)1 Statement see Rule 9(c)1 Statement ¶¶ 37 ("the parents proposed that a mutually acceptable independent educational consultant be retained"), 43 ("the Board was well aware of [parents'] long-repeated desire for an independent consultant"). 64 ("The hearing officer found that the Board has not offered an appropriate program and placement."); or in the hearing officer's report, see Final Decision and Order at 16, ¶¶ 9 10 ("Therefore, the purported IEP also fails as it has no basis in any recent evaluation of N.'s areas of need." "It is fairly clear that certain elements of the purported IEP were planned with little thought to meeting N.'s unique needs."); 19, ¶ 15 ("Having found that an appropriate program and placement has not been offered, what should N.'s program look like? The simple answer is that we do not know what the final program will look like because the information needed to make informed decisions is not yet available. So far, programming for N. has been reactive — not proactive"); 20, ¶ 1 ("The Board has not offered N. an appropriate program and placement."). Any mistakes made by Judge Martinez were immaterial.
This order adopts the Recommended Ruling with the following corrections: On page 10, the phrase "weekly PPT meetings" should read "weekly team meetings." On page 10 at footnote 7, the reference to "fn. 7" should be to fn. 5. On page 27, the phrase "the reward should be reduced" should read "the award should be reduced."
The Board attempts to create material issues of fact by parsing out differences between the affidavit submitted by Dr. Vespe for the Board and the affidavit submitted by N.'s father. That effort fails.
The Board focuses here on a perceived dispute over the purpose of the due process hearing, an important factor in deciding whether the plaintiff is a prevailing party. The Board cites to Dr. Vespe's affidavit as establishing that "the parents' primary objective was to have N. attend the Stratford Academy," a local school attended by her siblings. Objection at 5 (emphasis supplied). Although Dr. Vespe's affidavit supports the proposition that attending the same school as her siblings wasone of the objectives of the plantiff, that proposition was expressly recognized by both the hearing officer and Judge Martinez, see Final Decision and Order at 2; Recommended Ruling at 10, and therefore is not a genuine issue of fact. Moreover, even assuming Dr. Vespe's competence to opine on the plaintiff's intentions, his affidavit cannot be fairly read as supporting the proposition that the plaintiff's primary objective was to secure a place at Stratford Academy. See Vespe Affidavit ¶¶ 6-12. Therefore, even without reliance on the absence of a Rule 9(c)2 statement, the affidavit of Dr. Vespe fails to create a genuine issue of material fact. Judge Martinez acknowledged that the plaintiff both raised and lost the issue of attending the same school as her siblings. The Recommended Ruling is wholly consistent with the Vespe affidavit on this issue.
The Board also argues that it disputes, through Dr. Vespe's affidavit, the characterization of the Intensive Resource ("IR") program and the program offered to N. by the Board for the 1991-98 school year as a "segregated program." Opposition at 11. These are not material issues of fact. Dr. Vespe's affidavit does not dispute the hearing officer's findings of fact that the IR program at the Whitney School, where N. was placed for the 1997-98 school year, consists of "self-contained classrooms with four to five students per room, each of whom has intense sepcial education needs. . . . All the IR children spend some time in a regular education classroom. . . . The IR teachers do not provide support in the regular education classroom." Final Decision and Order at 8, ¶ 16. Nor does his affidavit directly characterize the IR program as "segregated" or not. Dr. Vespe's affidavit does indicate, however, that following the hearing at least some of N.'s IR services have been provided to her in the regular classroom, Vespe Affidavit at ¶¶ 16-20, making her post-hearing program less "segregated" than her pre-hearing program. Thus, the Vespe affidavit is consistent with the Recommended Ruling in all material respects.
The Board also seeks to limit the issues raised by the parents to those expressly stated in their request for a due process hearing. See Objection at 10 ("[T]he hearing officer was never asked to make any findings of fact or orders with respect to the program or placement. . . . The hearing officer was asked only to decide whether the IEP . . . was appropriate."). As the final order itself makes clear, however, the hearing officer understood that more issues than those expressly included in the parents' request for hearing were to be decided. See Final Decision and Order at 2 ("ISSUES: 1. Has the Board offered N. an appropriate program and placement? a. Does the IEP comport with all statutory requirements?"). The Board's contention that the hearing officer did not conclude "that the program or placement offered by the Board was inadequate," Objection at 10-11, is directly contradicted by point one of the hearing officer's final decision and order: "I. The Board has not offered N. an appropriate program and placement."
The Board's effort to challenge the Recommended Ruling on the basis that Judge Martinez made findings on material issues of disputed fact fails.
B. The Legal Standard Governing Fee Applications
The Board also challenges the legal standard employed by Judge Martinez when ruling on the merits of the fee applications. In essence, the Board argues that Judge Martinez erred by considering success on issues not formally raised in the written request for a due process hearing when deciding whether the plaintiff was a prevailing party. Judge Martinez did rely on the outcome of such issues when deciding the prevailing party question.
The court concludes that the parents are prevailing parties entitled to recover attorneys' fees. Although not every item of relief is identical to the relief demanded in their request for a hearing, the parents did achieve success on several significant issues — they blocked the Board's plan to have N placed in the segregated IR program; they succeeded in having the IEP declared deficient, thereby enabling them to engage in a new, dynamic process of designing a specialized education plan for their daughter; they succeeded insofar as the PPT was not required to consider inclusion as a viable alternative to the segregated IR program previously advocated; they succeeded in having an independent consultant and case manager appointed; and finally, they succeeded in having mandated weekly meetings.
Recommended Ruling at 24-25.
Judge Martinez appropriately considered success on these issues, which were litigated by the parties even though they were not formally raised in the due process hearing request. Adopting the Board's formalistic approach would render the prevailing party question dependent on the technicalities of pleading. The Second Circuit has rejected that approach.
Denying attorney fees under these circumstances would impose excessively onerous burdens on litigants seeking fee awards, so that virtually anything less than perfect congruence between the relief requested and the relief obtained would defeat a fee award. Such an approach clearly contradicts the "generous formulation" of the prevailing party test that the Supreme Court set forth in
Texas State Teachers Association. See 489 U.S. at 792,
109 S.Ct. 1486.
G.M. v. New Britain Board of Education, 173 F.3d 77, 83 (2d Cir. 1999).
Thus, although the relief formally requested by plaintiff is a starting point for determining prevailing party status, it is not the ending point for that analysis.
In applying the prevailing party standard, it is
helpful to identify the relief sought by the plaintiff and compare it with the relief obtained as a result of the suit. [citations omitted] "A plaintiff may be considered a prevailing party even though the relief ultimately obtained
is not identical to the relief demanded in the complaint, provided the relief obtained is of the same general type."
Koster v. Perales, 903 F.2d 131, 134-35 (2d Cir. 1990) [citation omitted].
Christopher P. v. Marcus, 915 F.2d 794. 804-05 (2d Cir. 1990) (emphasis supplied) (cited in
G.M. v. New Britain Board of Education, 173 F.2d 77, 81 (2d Cir. 1999)).
The correct comparison is between the relief sought, i.e., the issues actually litigated, and the results achieved. Litigation under the IDEA is necessarily fluid. In this case, the Board does not suggest that the 26 days of hearings were taken up solely with the issues formally raised in the request for a due process hearing. Instead, the hearing officer understood that the relief sought by the parents was broader than that set forth in their hearing request, and the hearing officer awarded relief on those broader claims. See Final Decision and Order at 2 (issues raised), 20 (relief awarded). Because there was a causal connection between the relief obtained and the litigation before the hearing officer, Judge Martinez correctly concluded that the plaintiff was a prevailing party for purposes of a fee award.
C. The Amount of Fees and Costs Awarded
The Board argues, in the alternative, that, even if plaintiff is entitled to an award of fees and costs under the IDEA, the amount awarded should reflect a reduction from the lodestar rate of more than fifteen percent. The greater reduction is required, according to the Board, to reflect the minimal degree of success achieved by plaintiff The Board has identified specific time entries for plaintiff's counsel that it contends relate to issues on which the plaintiff did not prevail, and suggests that these time entries and related costs should be disallowed. The Board also argues that, at a minimum, the fifteen percent reduction in the award used by Judge Martinez for the principal fees and costs application should be applied to the plaintiff's supplementary fee applications, too. Although the Board's arguments merit close attention, ultimately none is persuasive.
Reducing a fee award to reflect plaintiff's degree of success is an imprecise process that invariably results in figures that can be picked apart by either side. Following a review of the record, however, I am satisfied for a variety of reasons that the reduction of fifteen percent used by Judge Martinez fairly reflects the degree of plaintiff's success in this case.
First, the fifteen percent reduction results in a number quite close to that generated by a modified elimination of the specific time entries identified by the Board. The initial fees request sought; $113,325 for Attorney Shaw's time (453.3 hours at $250 per hour), $3,210 for Attorney Roznoy's time (21.4 hours at $150 per hour), and $6,240 for Attorney Feinstein's time (32 hours at $195 per hour), for a total of $122,775 plus costs. Applying a straight fifteen percent reduction to these numbers generates a total of $104,358. Reducing the fee request by most of the specific items identified by the Board as relating to issues the plaintiff lost results in a fee award of just over $105,000 — a slightly higher amount than produced by the fifteen percent reduction. One could reasonably factor in the requested reduction in the costs sought and could factor in some hearing preparation and attendance time to further reduce the award and to bring it below the fifteen percent approach, but this would be unduly harsh in the present case. The plaintiff's counsel began recording time on this case in June 1997, more than two and one-half years ago, and incurred the vast bulk of their fees in 1997 and 1998. Because no adjustment will be made for the lost time value of money, any further reductions would penalize the plaintiff for the fact that it has taken the court so long to rule on the fee application.
The hourly rates sought are consistent with prevailing rates in this District. The only rate potentially out of line is that for Attorney Roznoy, who is billed at $150 per hour presently. Attorney Roznoy's level of experience is unclear from the record. See Pl.'s Memorandum of Law in Support of Motion for Summary Judgment at 28 ("Attorney Roznoy served the plaintiff on this case within the services provided by the Law Offices of David C. Shaw. Reimbursement for the time of Attorney Roznoy is sought at $150 per hour. This rate is consistent with the billing practices of private firms. Attachment #17, ¶ 10."); Affid. of John C. Yavis, Jr. at ¶ 10, Attachment #17 to Pl.'s Memorandum of Law in Support of Motion for Summary Judgment ("In my opinion, the rate charged by private law firms in Connecticut for an associate attorney in a law firm with between one and two years of experience is at least $125 per hour.") (emphasis added); Declaration of David C. Shaw in Support of Motion for Attorneys' Fees and Costs at ¶ 8, Attachment #22 to Pl.'s Memorandum of Law in Support of Motion for Summary Judgment ("My associate, Attorney Roznoy, during the period March 16, 1998 through March 20, 1998 spent 21.4 hours working on this case. Our office's billing rate for Attorney Roznoy is $150 per hour."). If Attorney Roznoy were a first-year associate, the rate of $150 would be somewhat high. Attorney Roznoy's time was incurred in 1998, however, and his billing rate, which reflects his level of experience in January 1999 (and so is probably now somewhat outdated), is within an acceptable range. The Second Circuit has approved of the use of current billing rates, rather than historic billing rates, if the services were rendered over the past two or three years. See New York State Association of Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1153 (2d Cir. 1983).
Not included among the items subtracted were entries for time to prepare for and attend the hearings. Although it is possible to identify certain days of the hearing as pertaining to specific issues, eliminating that time would result in an overly stingy award. Preparation for a day of hearing on one subject may well prove beneficial to preparation for another hearing on another issue. Similarly, meetings with experts who either did not testify or who were retained for a specific issue that plaintiff lost quite likely involved broader discussions that proved to be of assistance with other issues.
The Board identified 124.7 hours of Attorney Shaw's time, other than preparation for and attendance at hearings, that it claimed related to issues the plaintiff lost. After adjustment to add back time spent preparing for and attending the hearing, about 58.2 hours was expended on losing issues. This translates to a reduction of about $14,550, leaving about $98,775 of Attorney Shaw's time. The Board identified all of the $3,210 attributed to Attorney Roznoy, but none of the time attributed to Attorney Feinstein, as relating to issues the plaintiff lost. Eliminating Attorney Roznoy's time and adding Attorney Feinstein's $6,240 to Attorney Shaw's $98,775, results in a total of $105,015.
Nor should the fifteen percent reduction apply to the various supplementary fee applications. The time reflected in those applications relates entirely to activities associated with the present motion for summary judgment, on which plaintiff has been nearly entirely successful. Although it is possible to quibble over a few of the time entries submitted with both the initial fee application and the supplementary applications, the time entries overall reflect a very efficient handling of both the lengthy administrative hearing and the substantial briefing in this case.
Accordingly, the amount of the award of fees and costs set by Judge Martinez in the Recommended Ruling is adopted and approved.
D. Summary
Judge Martinez properly relied on the undisputed facts set forth in plaintiff' Rule 9(c)1 statement and in the hearing officer's final decision when she issued her Recommended Ruling in this case. The Recommended Ruling properly concluded that plaintiff is a prevailing party for purposes of the IDEA. The amount of the award of fees and costs established by Judge Martinez fairly represents the degree of success by the plaintiff in the administrative hearing.
Supplementary Motion For Costs And Fees
Also pending is plaintiff's Supplementary Motion For Costs And Fees Subsequent To September 30, 1999 Recommended Ruling (Doc. # 50). That motions seeks $4,945.00 in attorneys' fees relating primarily to plaintiff's reply brief, filed in response to the Board's Objection to the Recommended Ruling. The Board raises three objections to this latest motion for fees: first, the Board incorporates its previous argument that plaintiff is not a prevailing party; second, the Board argues that any fees awarded in connection with the present motion should be reduced to reflect plaintiff's degree of success on the merits; and, third, the Hoard attacks the present application as excessive.
The first two arguments have been addressed above. For the reasons discussed above, plaintiff is a prevailing party and this last supplementary motion should not be subject to an across-the-board reduction. Nor is the application excessive. Although the application requests reimbursement for more than 24 hours of additional time spent on this matter, that total reflects the fact that plaintiff submitted a 23-page reply brief in response to the Board's Objection. Plaintiff's reply brief comprehensively addressed a number of factual and legal issues. Accordingly, the court finds that the latest application is reasonable and awards plaintiff the requested $4,945.00 in fees.
Conclusion
The Recommended Ruling (doc. # 43) is ADOPTED AND ACCEPTED by the court, with only the minor revisions noted in footnote 2, above. Accordingly, plaintiff's motion for summary judgment and first two supplementary motions for attorneys' fees and costs (doc. ##17, 31, and 38) are GRANTED in part. Plaintiff's latest supplementary motion for attorneys' fees and costs (doc. # 50) is GRANTED. Plaintiff is awarded the sum of $127,042.88 in attorneys' fees and costs (the $122,097.88 from the Recommended Ruling plus the $4,945.00 from plaintiff's Supplementary Motion For Costs And Fees Subsequent To September 30, 1999).
The clerk shall enter judgment and close this file.
It is so ordered.
Dated at Bridgeport, Connecticut, this 28th day of January 2000.