31 F.3d 942 (10th Cir. 1994), 93-5015, Beard v. Teska

Docket Nº:93-5015.
Citation:31 F.3d 942
Party Name:Kellee Jo BEARD, et al., Plaintiffs-Appellees, v. Julia TESKA, etc., et al., Defendants-Appellants.
Case Date:July 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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31 F.3d 942 (10th Cir. 1994)

Kellee Jo BEARD, et al., Plaintiffs-Appellees,

v.

Julia TESKA, etc., et al., Defendants-Appellants.

No. 93-5015.

United States Court of Appeals, Tenth Circuit

July 26, 1994

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[Copyrighted Material Omitted]

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Kay Harley, General Counsel for the Oklahoma State Dept. of Educ. and State Bd. of Educ. (Susan B. Loving, Atty. Gen. of Oklahoma and Sue Wycoff, Sr. Asst. Atty. Gen., on the brief), Oklahoma City, OK, for defendants-appellants.

R. Thomas Seymour of R. Thomas Seymour, Attys., Tulsa, OK, for plaintiffs-appellees.

Before BALDOCK, and EBEL, Circuit Judges and SHADUR, Senior District Judge. [*]

SHADUR, Senior District Judge.

This fee dispute stems from an offshoot of a 1985 civil rights action that sought the reform of the conditions and treatment of severely handicapped patients at Hissom Memorial Center ("Hissom"), a residential facility in Sand Springs, Oklahoma. 1 In 1987 the

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district court ordered a severance of the issue of the education of school-age children at Hissom because that issue did not concern conditions or treatment at the Center. Accordingly a separate action was brought on behalf of a class of those children against Oklahoma's Department of Education ("Education Department") and Department of Human Services ("Human Services Department"), 2 Sand Springs School District ("Sand Springs") and nine individuals, seeking relief under (1) 42 U.S.C. Sec. 1983 ("Section 1983"), (2) the Individuals with Disabilities Education Act ("IDEA," 20 U.S.C. Secs. 1400-1484a) 3 and (3) the Rehabilitation Act (29 U.S.C. Sec. 794).

In June 1990 the plaintiff class, Departments and Sand Springs entered into a Settlement Agreement under which Education Department assumed the responsibility:

1. to enter into contracts with local school districts for the education of class members (III.2 4);

2. to provide the "technical assistance" and "staff, materials, equipment, and other resources necessary" to aid the local districts in formulating the Individual Education Programs ("IEPs") required under IDEA (III.7, VI.1);

3. to insure that each IEP generally complies with the requirements of federal law (V.1) and particularly includes an extended school year ("ESY") where appropriate (V.3. (h));

4. to design and implement training programs for the personnel who will educate or supply related services to class members (VII.1); and

5. to provide a "monitoring enforcement capacity" in the form of oversight procedures and periodic sampling "to determine whether each class member is being provided with an appropriate education under State and Federal law" (VIII.1). 5

In August 1990 the Settlement Agreement was approved by the district court. But the following May the plaintiff class moved to withdraw its request for such embodiment of the Settlement Agreement in a court order, a motion granted by the district court on June 4, 1991.

Meanwhile in September and October 1990 Departments and Sand Springs stipulated to an award of $150,000 in attorney fees for work performed by plaintiff class counsel Louis Bullock ("Bullock") culminating in the Settlement Agreement. Then in July 1991 and February 1992 the plaintiff class made two additional applications for attorney fees and expenses for work that it said had been performed in securing compliance with the Settlement Agreement. After the plaintiff class settled with Sand Springs for $15,950 it proceeded against both Departments for roughly an additional $160,000. After a hearing that occupied portions of three days in July and August 1992 (the "Hearing"), on December 18, 1992 the district court's Order Fixing Attorney Fees ("Fee Order") awarded $144,630.12 in fees and expenses to be paid by Departments (which had agreed at the outset of the Hearing that there need be no allocation of any fees awarded as between them).

Departments now appeal that award. They do not challenge the lodestar approach to the fee award (reasonable hours times reasonable hourly rates), but they quarrel with each component of that approach. First, they assert that the total allowable hours should not have included time spent on three matters that were not properly chargeable against them:

1. a proceeding brought to obtain an ESY for 53 members of the plaintiff class;

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2. a due process claim brought on behalf of class member Julie Paulson ("Paulson") against the Tulsa Public Schools ("Tulsa"); and

3. work done in connection with the claim of a teacher in the Catoosa School District ("Catoosa") who asserted that she had contracted genital herpes from a member of the plaintiff class enrolled there.

Second, they dispute the reasonableness of the across-the-board $200 hourly rate that the district court approved for three of the plaintiff class' lawyers (Bullock, Frank Laski ("Laski") and R. Thomas Seymour ("Seymour")) because, they say:

1. $200 is an excessive hourly rate for services in this area of the law in all events; and

2. we should endorse the concept of awarding different hourly rates for work requiring different levels of skill.

We affirm the district court in part and reverse it in part.

ESY Matter

While members of the plaintiff class were at Hissom, Sand Springs had provided them with extended school programs--extending into the summer months. At the end of the normal school year in May 1991, however, school districts affording education to 53 class members refused to provide them with education during the coming summer. On May 15, 1991 the plaintiff class filed a very short Second Amended Complaint ("SAC") adding the allegation that Sand Springs had conspired to prevent other school districts from providing an ESY for class members. Though the SAC's case heading simply read Kellee Jo Beard, et al. v. The Hissom Memorial Center, et al., its first paragraph stated:

The plaintiffs adopt and replead, as if included in this complaint, all of the allegations and claims included in their First Amended Complaint previously filed herein.

That First Amended Complaint ("FAC") had employed the complete case heading in this case, listing both Departments among the other defendants. What the SAC requested by way of relief was a "Temporary Restraining order, Preliminary Injunction and Permanent Injunction, ordering Sand Springs," among other things, to provide an ESY to all class members who qualified for such services.

At a hearing the very next day, where both Departments were represented by counsel, Education Department's counsel stated that it "has not insisted at this point that all of the programs be IEP driven" and "I don't believe our Policies and Procedure Manual speaks to guidelines for extended school year." At the conclusion of the hearing the district court stated:

We're going to get everyone involved who needs to be involved.... I will direct the plaintiff to make the appropriate additional parties to these proceedings those school districts that are affected.

And on that same day the district court entered this minute order:

On TRO & Prel. Inj.: Pltfs to involve all school districts in attempt to resolve problems in accordance w/Settl. Agreement. Hearing reset for 5-28-91, 10:00am. No TRO or Inj. issued.

Because the amicable resolution that the district court had hoped for was not reached by May 28, on that day it issued another minute order:

Court orders joinder of addl. parties & encourages parties to cont. to follow law & work together to resolve.

On July 2, 1991 the plaintiff class filed a Third Amended Complaint ("TAC"), which named nine school districts (collectively the "School Districts") as defendants but dropped Sand Springs. In much greater detail than the SAC, the TAC alleged that the School Districts were failing to provide class members with appropriate IEPs that included an ESY. 6 When at the beginning of the 1991 fall semester the 53 class members were still not being provided with any education at all, on August 29, 1991 the district court orally directed the plaintiff class to file an amendment to its application for a preliminary injunction, naming Education Department as a defendant. And the plaintiff class

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did just that on September 4 by filing a "Motion for a Preliminary Injunction Against the State Department of Education," asking that the latter be required to fulfill its obligations under Section 1414(d)(3) to insure that the 53 students receive the "free appropriate public education" to which they are entitled.

On September 11 Education Department's board ("Board") passed a resolution acknowledging in part that:

the Board and the State Department of Education is responsible and obligated under Federal Statute and regulations to assure that all children and youth with disabilities in Oklahoma have available a free appropriate public education....

It went on to order the School Districts to educate the 53 students from September 16, 1991 until an October 1 scheduled court hearing. On September 13 Education Department filed a cross-claim against the School Districts to enforce that order. Three days later the School Districts responded, alleging that it was not their fault that the 53 students were not being educated, but rather Education Department's for having failed to meet its obligations under the Settlement Agreement.

That finger-pointing came to an end on October 2, 1991 when Education Department's counsel Robert Nance ("Nance") informed the district court during an in-court oral Settlement Announcement:

I believe [the settlement is] a creative solution to what was a difficult problem. Under it the State Department of Education will undertake to provide direct services to the 53 students in question...

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