Opinion
EP-04-CA-0381-FM.
August 29, 2005
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT AND JUDGMENT ON ATTORNEY'S FEES
Before the Court is "Plaintiff's Motion for Summary Judgment on Attorney's Fees" [Rec. No. 11], Plaintiff's "Memorandum of Law in Support of Motion for Summary Judgment on Attorney's Fees" [Rec. No. 12], "Defendant's Response to Motion for Summary Judgment on Attorney's Fees" [Rec. No. 13], and "Plaintiff's Reply to Defendant's Response to Motion for Summary Judgment on Attorney's Fees" [Rec. No. 17] filed in the above captioned case. After carefully reviewing the arguments and authorities, the Court is of the opinion that "Plaintiff's Motion for Summary Judgment on Attorney's Fees" [Rec. No. 11] should be GRANTED for the following reasons:
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Mike B, as next friend of A.B., seeks attorneys' fees and costs pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(i)(3).
Plaintiff's underlying administrative complaint was brought against the El Paso Independent School District ("EPISD") on May 9, 2003. The initial complaint alleged that A.B. was removed from his placement and sent to an alternative education program without notice to Mike B., A.B.'s father and joint managing conservator on April 10, 2003, and he was not provided a proper manifestation determination review. Plaintiff also invoked the procedural provisions of 20 U.S.C. § 1415(j) requiring that A.B. remain in the last agreed upon placement at Roberts Elementary School. Plaintiff amended his initial complaint on May 19, 2003 to include another change in placement on November 11, 2002 that Plaintiff also alleged he was also not provided notice. Plaintiff sought resolution of his claims by requiring EPISD provide a manifestation determination review and proper notice to Mike B. before conducting a committee meeting concerning the change of placement for A.B.
A pre-hearing conference was held on May 19, 2003. On May 22, 2003, Special Education Hearing Officer Lynn Rubinett ("Officer Rubinett") issued her decision that A.B.'s pendant placement was in the self-contained classroom of Roberts Elementary. This order specifically stated, "the discussion and order contained herein address only the issue of [A.B.'s] placement during the pendency of this proceeding and should not be read to address any substantive issues in this case." [Rec. No. 12, Ex. 6].
Plaintiff and Defendant's attorneys signed a settlement agreement on June 20, 2003. This agreement stipulated that attorney's fees in the amount of $8,950.00 was reasonable and A.B. will be returned to the general education classroom for all subjects following an ARD committee hearing. The agreement also required that the settlement agreement be submitted to the Board of Trustees of the EPISD for its approval. The settlement agreement was not noticed for the subsequent six board meetings. Plaintiff's attorney attempted to conclude the underlying administrative matter before the start of the 2003-2004 school year. Defendant's counsel through a letter dated August 4, 2003 informed Plaintiff's counsel contrary to the settlement agreement requiring the entire agreement to be submitted to the board for approval, that "as usual, all the non-fee portions of the Settlement Agreement are effective without Board of Trustees approval. It is only the attorney's fees portion of the settlement that must be approved by the Board before a check may be issued." [Rec. No. 17, Ex. 26]. Acting on this assumption, an ARD committee was held on August 11, 2003 and A.B. was returned to a general educational classroom when school started on August 15, 2003 at Moorhead Elementary School. The settlement agreement never received approval from the El Paso Independent School Board.
On August 20, 2003, Plaintiff was unilaterally placed in the self-contained classroom at Moorhead Elementary. On August 22, 2003, a pre-hearing conference was held to clarify the issues for the hearing. Plaintiff raised the protraction issue for the first time. Officer Rubinett stated the issues were the "original issues plus protraction. And then we need a new ruling on stay put." [Rec. No. 13, ex. 3]. On August 27, 2003, Officer Rubinett issued her order following the prehearing conference. She stated the issues are:
The parties agreed with Officer Rubinett that the change of placement from Roberts Elementary School to Moorhead Elementary School was not significant.
1. Respondent improperly admitted [A.B.] to special education and changed his placement to a self-contained classroom at Roberts Elementary in November 2002 without notice to [A.B.'s] father, Mike B.;
2. Respondent improperly removed [A.B.] from his placement at Roberts Elementary and placed him in an AEP in April 2003 without proper notice to [A.B.'s] father, Mike B., and without conducting a proper manifestation review;
3. Respondent unreasonably protracted the final resolution of these issues by delaying consideration of the settlement agreement between the parties until August 2003 and then rejecting said agreement; and
4. Respondent unilaterally moved [A.B.] from an agreed placement in regular education classes at Moorhead Middle School to a self-contained placement at Moorhead.
And relief sought is:
a order voiding the actions taken by the ARDCs of October/November 2002 and April 2003 and requiring Respondent to reconvene an ARDC to consider [A.B.'s] eligibility to special education and his placement with proper notice and participation by Mike B., and requiring Respondent to conduct a proper manifestation review before placing [A.B.] in the AEP. In addition, Petitioner seeks a finding pursuant to 19 TAC § 89.1185 that Respondent unreasonably protracted the resolution of the instant litigation.
A hearing on these issues was held on September 16, 2003. On September 17, 2003, Officer Rubinett determined that "nothing has occurred between the parties to alter the last agreed upon placement" of May 22, 2003 and the May 22, 2003 placement remains in effect.
Officer Rubinett issued her decision on the underlying administrative action on October 20, 2003. Rubinett found that: (1) EPISD provided adequate notice regarding the November 2002 ARDC meeting; (2) EPISD failed to provide Mike B. notice of the April 2003 ARDC meeting violating the procedural notice provisions of the IDEA; (3) this failure to provide Mike B. notice caused substantive harm and thus constituted a denial of a free appropriate public education; and (4) Respondent failed to demonstrate that A.B.'s behavior was not a manifestation of his disability; (5) Respondent did not unreasonably protract the final resolution of this cause.
Officer Rubinett ordered the following relief: (1) actions taken by the ARDC of April 10, 2003 were voided and the placement of A.B. at the About Face Program was recinded; (2) prior to any future placements respondent is ordered to provide Mike B. proper notice of all ARDC meetings concerning A.B.; and (3) a proper manifestation review for the actions of April 2003 is ordered.
Plaintiff submitted his fees to Defendant, and brought the instant action for attorney's fees. Defendant made its offer of judgment for $10,000.00 pursuant to FED. R. CIV. P. 68 on October 27, 2004. Plaintiff now moves for summary judgment and requests the Court award him $15,590.33 for the preparation and trial of the administrative hearing, $7,172.00 for the preparation of the current action, and costs.
II. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Ragas, 136 F.3d at 458. Further, the court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-52 (2000).
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458.
III. WHETHER PLAINTIFF IS THE PREVAILING PARTY
Prevailing parties are entitled to attorney's fees. See Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, (1989). A Plaintiff may prevail on "any significant claim affording some of the relief sought." Id. at 791. "In IDEA cases, a prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the . . . [special education student] and (2) fosters the purposes of the IDEA." Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998).
There is no question of material fact that Plaintiff is the prevailing party in the underlying administrative action. Officer Rubinett found that the El Paso Independent School Board failed to give Mike B. notice of the April 2003 ARDC meeting violating the IDEA's statutory provisions. Furthermore, she found that this violation "which had the effect of totally precluding Mike B. from participation in the ARDC process, caused substantive harm and thus constitutes a denial fo a free appropriate public education." [Rec. No. 12, Ex. 6]. Officer Rubinett also found that the "manifestation review conducted did not satisfy the statutory requirements specified in the IDEA." [Rec. No. 12, Ex. 6] Following these findings, Officer Rubinett voided all the ARDC's actions of April 10, 2003 and rescinded A.B.'s placement, required Respondent to give Mike B. proper notice of all ARDC meetings concerning A.B. and required a proper manifestation review prior to placing A.B. in an alternative education program. Thus, the hearing altered the legal relationship between Mike B. and the School Board. The remedy obtained fosters the purposes of the IDEA by providing him with a free and appropriate public education. See Jason, 158 F.3d at 209.
The facts of this case do not satisfy the narrow circumstances where a settlement agreement confers prevailing party status. See Buckhannon Bd. Care Home, Inc. v. West Virginia Dep't of Health Human Res., 532 U.S. 598 (2001). Therefore, the Court does not consider the settlement agreement not approved by the school board regarding this issue.
IV. CALCULATION OF FEES
"In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs." 20 U.S.C. § 14 (i)(3)(i). This provision is interpreted in accordance with the Supreme Court's holding in Hensley v. Eckerhart, 461 U.S. 424 (1983); Jason, 158 F.3d at 208. Although Plaintiff has been found to be the prevailing party and is eligible to receive reasonable attorney's fees, Plaintiff is not automatically entitled to all of the fees sought.
In determining reasonable attorney's fees, the Court follows a two-step approach. The Court first determines the "lodestar" amount by multiplying the reasonable number of hours expended by the prevailing hourly rate in the community for similar work. The prevailing party must establish the market rate through evidence showing this rate is in line with the market rate of the community. Blum v. Stenson, 465 U.S. 896 n. 11 (1984). Courts should "exclude from this initial fee calculation hours that were not `reasonably expended,'" including "excessive, redundant, or otherwise unnecessary" work. Hensley v. Eckerhart, 461 U.S. at 434.
Once the lodestar is calculated, the Court considers twelve factors as presented in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) to determine whether the lodestar figure should be adjusted. The Johnson factors are as follows:
(1) the time and labor required for the litigation; (2) the novelty and complication of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorney had to refuse other work to litigate the case; (5) the attorney's customary fee; (6) whether the fee is fixed or contingent; (7) whether the client or case circumstances imposed any time constraints; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether the case was "undesirable;" (11) the type of client-attorney relationship and whether the relationship was long-standing; and (12) awards made in similar cases.
"The most critical factor in determining the reasonableness of a fee award is the degree of success obtained." Jason, 158 F.3d at 209. A party is not entitled to attorney's fees for the prosecution of an unsuccessful claim unless it involves common facts or derives from related legal theories of another claim that is successfully prosecuted. See Hensley, 461 U.S. at 434.
A) Lodestar
Plaintiff requests fees in the amount of $15,532.00 for the underlying administrative action. This is based on multiplying the number of hours expended by Plaintiff's counsel, 70.6, by $220. Through Plaintiff's own affidavit and that of two other attorneys practicing in the El Paso legal community, Plaintiff has established the reasonable market rate in the community is between $210 and $250. Defendant would have the court believe that the market rate of the community is $180 based on his familiarity with the customary, hourly rates charged by attorneys in the Western District of Texas for special education cases of this nature and his experience in these cases. Yet, Defendant does not offer evidence other than his own familiarity and experience that attorney's requesting $180 have similar experience, skill or reputation to that of Plaintiff's counsel. Unsupported speculation is not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994). The Court is satisfied with Plaintiff's showing that the requested rate of $220 comports with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. See Blum v. Stenson, 465 U.S. 896 n. 11 (1984).
The court next turns to the number of hours expended. Defendant argues Plaintiff should not be compensated for drafting interrogatories because Officer Rubinett held that interrogatories were not permitted in the underlying administrative proceedings. The Court finds the 1.8 hours spent drafting interrogatories unnecessary. Therefore the amount of time spent drafting interrogatories should be subtracted from the "lodestar" calculation of the underlying administrative action. The lodestar for the underlying administrative action is 68.8 hours expended multiplied by $220 for a total of $15,136.00
Regarding the instant action, the Court finds 32.6 hours multiplied by the rate of $220 totaling $7,171.00 is the "lodestar."
B) Reduction for Johnson Factors
The Court has considered the factors as presented in Johnson and finds reducing the "lodestar" amount appropriate.
Defendant argues only four issues were presented as outlined by Officer Rubinett in her August 27, 2003 order. Further, Defendant argues that Plaintiff only prevailed on one issue, the April 2003 notice issue, and therefore should only be compensated for work relating to this issue at approximately 20% of the requested fee. Moreover, Defendant argues that prevailing on this claim was of limited value because the disciplinary placement resulting from the ARDC meeting expired prior to the end of the 2002-2003 school year.
The Court finds that the underlying administrative action determined seven issues, some more relevant than others: (1) the initial maintenance of placement issue of Mike B., decided by Officer Rubinett's order of May 22, 2003; (2) the second placement issue, decided by Officer Rubinett's letter order of September 17, 2003; (3) the November 2002 notice issue; (4) the April 2003 notice issue; (5) the proper manifestation review issue; (6) the protraction issue; and (7) the denial of a free appropriate public education issue.
Of the seven issues identified, Officer Rubinett in her Decision of October 20, found that Plaintiff did not prevail on the November 2002 notice issue and the protraction issue, but prevailed on the April 2003 issue, the free appropriate public education issue, and the manifestation review issue. Moreover, Hearing Officer Rubinett's order of May 22, 2003 found that Plaintiff partially prevailed on the first placement issue. Because the second placement issue was directly related to the first placement issue, Plaintiff also partially prevailed on the second placement issue. To the extent that Plaintiff did not prevail on the November 2002 notice issue or part of the placement issue, the Court finds that these issues derived from related legal theories of another claim that was successfully prosecuted, the April 2003 notice issue. See Hensley, 461 U.S. at 434. Therefore, although Plaintiff cannot recover for claims he did not prevail on, the Court does not reduce the attorney's fees for not prevailing on the November 2002 notice issue, and the placement issues because the legal theories of these issues were related to the April 2003 notice issue on which Plaintiff prevailed.
"The most critical factor" in determining the reasonableness of an attorney's fee award "is the degree of success obtained." Jason, 158 F.3d at 209. The gauge of success is the result of the lawsuit in terms of relief obtained. Hensley, 461 U.S. at 435-37. "The proper measure is the degree of a plaintiff's overall success in relation to the other goals of the lawsuit when determining the amount of a reasonable fee under Hensley." Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 790-93 (1989).
The Court finds that Plaintiff achieved a great deal of success. Based on Plaintiff's administrative complaint, the primary objective of his lawsuit was to ensure Mike B. received notice from the EPISD before conducting any ARDC meetings concerning change of placement of A.B. and conduct a proper manifestation determination review. Officer Rubinett ordered that Mike B. be provided such notice and required a proper manifestation review of the April 2003 actions.
Defendant argues Plaintiff achieved limited success because the decision voiding the disciplinary placement requiring a proper manifestation review had no practical bearing on A.B.'s placement as the disciplinary placement had already terminated. Unlike the case in Jason, as stated above, the primary objective of Mike B's complaint was not to secure placement in another school or another disciplinary placement. Moreover, invariably, the legal machinery operates more slowly than decisions made in a school setting. If the Court were to find for every violation of the IDEA where a Plaintiff prevailed, he could not be considered successful if it awards prospective relief, then Congressional intent to provide legal redress through the IDEA would be thwarted. Furthermore, the time sensitive nature of Plaintiff's action weighs against reducing the "lodestar" amount. Lastly, Defendant argues that the Court should reduce the "lodestar" fee because the legal issues involved were not novel or complicated. However, Defendant's bald unsupported assertions do not persuade this Court that the issues were not novel or complex. Examining Officer Rubinett's October 20, 2003, order shows that she relied on decisions from other states and circuits relating to the notice issues. Therefore the Court infers there was no clear Texas or Fifth Circuit law controlling the notice issue. While it might not have been the first time a notice issue was brought before an administrative hearing officer, it cannot be said to have been clearly decided. Considering all the facts and circumstances involved herein it is abundantly clear that A.B.'s quality of educational life has benefitted tremendously from his lawyer's advocacy.
Because Plaintiff was highly successful in receiving the relief requested, the Court finds it appropriate to reduce the "lodestar" amount for the underlying administrative action only for the claim that Plaintiff did not prevail on that is not legally related to claims upon which Plaintiff did prevail, the protraction issue. The Court does not find it appropriate to reduce the "lodestar" by the number of hours that Plaintiff recorded he only worked on the protraction issue. As Defendant points out, the protraction issue was part of the administrative hearing and time was spent on it at both the pre-hearing conference and during the hearing itself. Because the protraction issue was raised at the later stages of the underlying administrative action, case circumstances imposed time constraints on Plaintiff's counsel and made it prudent for him to raise this issue, and not prevailing on this issue did not affect Plaintiff's substantive relief, the Court finds it appropriate to reduce the "lodestar" amount of the underlying administrative action by 10% or to $13,622.40.
The Court has also considered the Johnson factors relating to the district court action and finds reducing the lodestar amount inappropriate. Thus, the court finds $7,171.00 reasonable attorney's fees for the instant action.
IV. Reduction for Protraction/Failure to Accept Settlement Offer
Defendant argues Plaintiff is not entitled to attorney's fees and costs in bringing this action in district court for two reasons: (1) any award of reasonable attorney's fees would be less than the offer of judgment; and (2) Plaintiff has protracted these proceedings.
Defendant made its offer of judgment for $10,000.00 pursuant to FED. R. CIV. P. 68 on October 27, 2004. [Rec. No. 13, Ex. 8]. The IDEA explicitly precludes awarding attorney's fees where the court "finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement." 20 U.SC. § 1415(i)(3)(D)(i). Defendant offered $10,000.00 to settle this case. As calculated above, the relief obtained by the parents on the date of the Defendant's settlement offer was more favorable than the offer of settlement and therefore the statute does not preclude awarding fees. Defendant relies on Jason D.W. v. Houston Indep. Sch. Dist. 158 F.3d 205, 211 (5th Cir. 1998) to support his argument that the Court should not award attorney's fees for filing this action because any award for the underlying administrative action would be less than its settlement offer. However, this case is distinguishable from Jason for the same reasons that the statute does not preclude the Court from awarding attorney's fees.
The Court next turns to whether Plaintiff protracted this case. "Under the IDEA, whenever a court finds that a fee applicant seeking attorneys' fees under the statute has `unreasonably protracted the final resolution of the controversy,' the court `shall reduce, accordingly, the amount of attorneys' fees awarded.'" Jason at 211 (citing 20 U.SC. § 1415(e)(4)(F)(i)). A party may be found to have protracted the underlying proceedings and/or the current action for attorney's fees. Id. Furthermore, failing to settle may constitute protraction. Id.
20 U.SC. § 1415(e)(4)(F)(i) has been amended. The substantive provisions have not changed although they are now found at 20 U.SC. § 1415(i)(3)(F).
Because Plaintiff intended to settle the underlying administrative proceeding and entered into a settlement agreement signed by both parties, Defendant is precluded from arguing that Plaintiff unreasonably protracted the underlying administrative proceedings. Thus, the question becomes whether Plaintiff has unreasonably protracted the current proceedings.
Defendant does not argue that Plaintiff's counsel was needlessly adversarial or protracted these proceedings in any way except failing to accept Defendant's settlement offer of October 27, 2004. This offer would have compensated Plaintiff $1,050 over the previously agreed upon settlement that provided attorney's fees in the amount of $8,950. As evidenced by Plaintiff's supporting brief, Plaintiff's counsel spent 19.6 hours after that agreement relating to the administrative hearing totaling $4,312.00. Thus, had Plaintiff's attorney accepted the offer, he would not have been compensated for the time expended relating to the administrative hearing. [Rec. No. 13, Ex. 8; Rec. No. 17, Ex. 20]. Moreover, Plaintiff's attorney would not have been compensated for his time expended relating to the current action. The Court finds that Plaintiff was "substantially justified" in rejecting the settlement offer of October 27, 2004. Thus, the Court finds that Plaintiff has not unreasonably protracted the proceedings for reasonably declining a settlement offer.
V. Conclusion
Plaintiff is awarded attorney's fees in the amount of $13,622.40 for the underlying administrative action, $7,171.00 for the instant action and costs.
IT IS THEREFORE ORDERED that "Plaintiff's Motion for Summary Judgment on Attorney's Fees" [Rec. No. 11] is GRANTED. Plaintiff is awarded attorney's fees in the amount of $13,622.40 for the underlying administrative action, $7,171.00 for the instant action and costs.