G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist.

894 F.Supp.2d 415

G.B. and L.B., on behalf of their minor child, N.B., and on their own behalves, Plaintiffs,

v.TUXEDO UNION FREE SCHOOL DISTRICT, Defendant.

Case No. 09–CV–859 (KMK).

United States District Court, S.D. New York.

Sept. 18, 2012.

Michael Howard Sussman, Esq., Mary Jo Whateley, Esq., Sussman & Watkins, Goshen, NY, for Plaintiffs.

Mark Craig Rushfield, Esq., Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

On August 15, 2011, the Court entered judgment for Plaintiffs in the amount of $71,041.25 in tuition reimbursement in this civil rights action brought under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs now move for an award of attorneys' fees and expenses incurred during the course of the litigation. For the reasons stated herein, Plaintiffs' motion is GRANTED as modified. The Court awards attorneys' fees to Plaintiffs in the amount of $76,038 and costs in the amount of $425.

I. Background

A. Facts and Procedural History

“G.B.” and “L.B.” (collectively, “Plaintiffs”), on behalf of their daughter “N.B.,” brought this action against the Tuxedo Union Free School District (“the District” or “Defendant”) for violations of the IDEA.¹ Plaintiffs alleged that individualized education plans (“IEPs”) produced by the District violated the statutory requirement that children with disabilities be educated with non-disabled children “[t]o the maximum extent appropriate.” 20 U.S.C. § 1412(a)(5)(A).² Following an unfavorable ruling from an Impartial Hearing Officer (“IHO”) and denial of appeal by a State Review Officer (“SRO”) for the New York State Education Department, Plaintiffs sued the District in this Court. Plaintiffs sought, inter alia, reimbursement of N.B.'s tuition from February through June 2007, and the entire 2007–2008 school year. Both sides moved for summary judgment.

On September 30, 2010, the Court entered an Opinion and Order granting Plaintiffs' motion for summary judgment and denying Defendant's cross-motion for summary judgment. (Dkt. No. 23.) On August 15, 2011, the Court issued an Order granting Plaintiffs a partial tuition reimbursement in the amount of $71,041.25, covering the tuition costs for May and June 2007 and the full tuition for the 2007–2008 school year. (Dkt. No. 28.) On equitable grounds, the Court declined to grant tuition reimbursement for February to April 2007 because Plaintiffs failed to give proper notice to the District before removing N.B. from her public school.³ On August 30, 2011, Plaintiffs filed the instant Motion for Attorney Fees. (Dkt. No. 30.)

B. Plaintiffs' Attorneys

Plaintiffs were represented by Mary Jo Whateley, a Senior Staff Attorney with the Legal Services of the Hudson Valley (“LSHV”) and Michael H. Sussman, named partner of the law firm Sussman & Watkins.⁴ Ms. Whateley began representing Plaintiffs on July 17, 2008, when they contacted LSHV seeking representation in their appeal of the unfavorable IHO decision to the SRO. (Aff. of Mary Jo Whateley in Supp. of Mot. for Award of Att'y Fees and Costs (“Whateley Aff.”) ¶ 3.) After the denial of Plaintiffs' appeal by the SRO, Mr. Sussman agreed on December 19, 2008 to co-counsel the case with Ms. Whateley in federal court. ( Id. ¶¶ 10–11.)

Ms. Whateley has been admitted to practice law in New York since 1996 and began working as an associate in the Law Offices of Michael H. Sussman in 1996. ( Id. ¶ 18.) She joined LSHV in 2001 and worked in its Domestic Violence and Housing Units until September 2005,⁵ when she transferred to LSHV's Children's Unit. ( Id. ¶¶ 18–19; Reply Aff. of Mary Jo Whateley in Supp. of Pls.' Mot. for Att'ys' Fees and Costs (“Whateley Reply Aff.”) ¶ 2.) ⁶ Since that time, she has primarily represented children with disabilities under the IDEA in Orange, Sullivan, Ulster, and Dutchess Counties. (Whateley Aff. ¶ 19.) In 2008, Ms. Whateley was made Senior Staff Attorney of LSHV's 7–county Child Advocacy Unit, which in addition to the four counties previously listed, also represents children in Rockland, Westchester, and Putnam Counties. ( Id. ¶ 20.) Additionally, while employed by the Sussman Law Firm from 1996 to 2001, Ms. Whateley worked on numerous civil rights cases, several of which were brought under the IDEA. (Whateley Reply Aff. ¶ 4.) Ms. Whateley states in her affidavit that she is regularly recognized as having expertise in the special education field and lists several Continuing Legal Education (“CLE”) and other training sessions which she has provided on special education law since 2008. (Whateley Aff. ¶¶ 21–23.)

Mr. Sussman is a named partner at the law firm Sussman & Watkins. He graduated with honors from law school in 1978. From 1978 to 1981, he worked as a litigator in the Civil Division Honors Program of the United Stated Department of Justice. (Aff. of Michael H. Sussman in Supp. of Mot. for Reasonable Fees and Costs (“Sussman Aff.”) ¶ 2.) In 1981, Mr. Sussman joined the national office of the National Association for the Advancement of Colored People (“NAACP”), where he was responsible for housing, school, voting rights, and employment discrimination litigation. ( Id. ¶ 2.) Beginning in June 1981, he served as chief legal counsel for the Yonkers Branch NAACP and represented a class of 40,000 Hispanic and African–American Yonkers residents in a housing desegregation case before the Honorable Leonard B. Sand that lasted for over twenty-five years. ( Id.) In 1986, Mr. Sussman opened his own practice focusing on civil rights litigation and since that time has litigated over 600 cases in the Southern District of New York and has argued over 250 appeals in the United States Court of Appeals for the Second Circuit. ( Id. ¶¶ 5–6.) Mr. Sussman notes that he has extensive experience in civil rights litigation and has presented over ten CLE courses to lawyers on civil rights issues, including those relating to special education. ( Id. ¶ 6.) Mr. Sussman has litigated numerous special education cases since 1986, both administratively and in federal court, and in at least 40 of those cases, Defendant's counsel also served as opposing counsel. (Reply Aff. of Michael H. Sussman in Supp. of Mot. for Att'y Fees and Costs (“Sussman Reply Aff.”) ¶ 3.)

Ms. Whateley seeks compensation for 219 hours, which include both working and travel time. She seeks a rate of $300 per hour for the 209.5 hours of work she performed, and $150 per hour for 9.5 hours of travel time, totaling $64,275.00. (Whateley Aff. ¶ 17, Ex. 1.) ⁷ Mr. Sussman seeks compensation for 36.5 hours of work at a rate of $450 per hour, totaling $16,425.00. (Sussman Aff. ¶¶ 7, 9, Att. A.) ⁸ Plaintiffs also seek reimbursement for the costs of the litigation, which include a $350 filing fee and a $75.00 service of process fee. ( Id. ¶ 10.)

II. Discussion

A. Prevailing Party

1. Legal Standard

The IDEA provides that “[i]n any action or proceeding brought under [the IDEA], the court, in its discretion, may award reasonable attorneys' fees as part of the costs ... to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i). The Second Circuit has specified that an “action or proceeding” includes both administrative hearings and litigation before federal courts. See A.R. ex rel. R.V. v. N.Y.C. Dep't of Educ. 407 F.3d 65, 75 (2d Cir.2005). “In considering a claim for attorney'sfees under a federal fee-shifting statute, a district court must ordinarily make two determinations.” Mr. L. v. Sloan, 449 F.3d 405, 407 (2d Cir.2006). First, the court must determine whether the party seeking the award is the prevailing party. Id. If so, “the court then must determine whether, under the appropriate standard, that party should be awarded attorneys' fees.” Id.

2. Analysis

As a threshold matter, the Court must determine whether Plaintiffs are the prevailing party. See id. at 407. The Second Circuit has held that Congress intended the term “prevailing party” to be construed consistently under the IDEA and other fee-shifting statutes, under the standard set forth by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). See J.C. v. Reg'l Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 123 (2d Cir.2002). Under this standard, “to be a prevailing party, one must either secure a judgment on the merits or be a party to a settlement agreement that is expressly enforced by the court through a consent decree.” Id. (citing Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835). Courts within the Second Circuit have noted that the prevailing party standard has been “interpreted generously” by the Supreme Court and the Second Circuit, and to be granted an award of attorneys' fees, a party “need not prevail on all issues.” B.W. ex rel. K.S. v. N.Y.C. Dep't of Educ., 716 F.Supp.2d 336, 345 (S.D.N.Y.2010) (citation omitted). Instead, the party “must ‘succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.’ ” Id. (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)); see also E.S. v. Katonah–Lewisboro Sch. Dist., 796 F.Supp.2d 421, 427 (S.D.N.Y.2011) (same).

The Court granted summary judgment for Plaintiffs, holding that both of the District's IEPs failed to comport with the IDEA's mainstreaming requirements, and granting Plaintiffs tuition reimbursement for a portion of the 2006–2007 school year, and the entirety of the 2007–2008 school year. Plaintiffs therefore secured a judgment on the merits and are the prevailing party. Defendant does not dispute that Plaintiffs are the prevailing party, but argues that the fee award should be reduced by 25%, because Plaintiffs only succeeded in obtaining a partial tuition reimbursement. (Def.'s Mem. of Law in Opp'n to Pl.'s...