Murphy v. Arlington Cent. School Dist. Bd. of Ed.

• Decision Date: 29 March 2005
• Docket Number: No. 03-7850-CV.,03-7850-CV.
• Parties: Pearl MURPHY, Theodore Murphy, Plaintiffs-Appellees, v. ARLINGTON CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

402 F.3d 332

Pearl MURPHY, Theodore Murphy, Plaintiffs-Appellees, v. ARLINGTON CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendant-Appellant.

No. 03-7850-CV.

United States Court of Appeals, Second Circuit.

Argued: December 16, 2004.

Decided: March 29, 2005.

Jeffrey J. Schiro, Kuntz, Spagnuolo, Scapoli & Schiro, P.C., Bedford Village, N.Y. for Arlington Central School District Board of Education, Defendant-Appellant.

Pearl Murphy and Theodore Murphy, pro se, LaGrangeville, NY, Plaintiffs-Appellees.

David C. Vladeck, Institute for Public Representation, Georgetown University Law Center, Washington, DC (Brian Wolfman, Public Citizen Litigation Group, Washington, DC, on the brief), for Public Citizen, Inc., Amicus Curiae.

Before: NEWMAN, POOLER, and KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge.

This case of first impression calls upon us to determine whether a prevailing plaintiff may recover expert fees under the Individuals with Disabilities Education Act ("IDEA")'s fee shifting provision, 20 U.S.C. § 1415(i)(3)(B), which authorizes a court to award "costs."¹ We affirm the judgment of the United States District Court for the Southern District of New York (Charles S. Haight, Jr., Judge), and hold that expert fees are compensable as costs under the IDEA. Moreover, we hold prospectively that a plaintiff's application for fees for experts or consultants who perform services in IDEA actions will normally not be approved unless the application is accompanied by time records contemporaneously maintained by the person performing the services.

BACKGROUND

In August 1999, Pearl and Theodore Murphy (collectively, the "Murphys"), pro se, filed a complaint on behalf of their son Joseph Murphy pursuant to the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq.² In their complaint, the Murphys sought to require Arlington Central School District Board of Education ("Arlington") to pay Joseph's tuition at a private school for certain school years. Ultimately, the Murphys prevailed in the district court, and this Court affirmed the district court's judgment in the Murphys' favor. See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F.Supp.2d 354, 368 (S.D.N.Y.2000), aff'd, 297 F.3d 195 (2d Cir.2002).³

By letters dated January and February 2003, the Murphys requested that the district court order Arlington to pay fees and costs incurred during the course of the federal litigation and state administrative proceedings. Included among the Murphys' expenses were $29,350 in fees pertaining to the services of Marilyn Arons, M.S., an educational consultant.

In March 2003, Arlington opposed the Murphys' application for fees, arguing that the district court should "deny or substantially reduce" the amount of Arons's fees because: (1) the IDEA does not allow "lay advocates" to recover attorneys' fees; (2) although experts' fees are recoverable, Arons's fees could not be recovered because she did not testify as an expert, or provide a litigation consulting service, as Arons has no specialized training in courtroom practice or procedure; (3) Arons's time records were insufficient; (4) Arons failed to establish that there was a market rate for her services; and (5) Arons's fees pertaining to her representation of the Murphys during non-judicial state "special education due process hearings" were specifically exempted from the IDEA.

By order dated July 22, 2003, the district court granted the Murphys' application in part, and denied it in part. Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 99 Civ. 9294, ___ F.Supp.2d ___, 2003 WL 21694398, 2003 U.S. Dist. LEXIS 12764 (S.D.N.Y. July 22, 2003) The district court found that the IDEA provides that the district court, in its discretion, may award a parent who is a "prevailing party" "reasonable attorneys' fees" and that, at impartial due process hearings, a party has "the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities." Id. at Murphy, 2003 WL 21694398 at *4 (citing 20 U.S.C. § 1415(d)(1) and (e)(4)(B)).⁴ The district court endorsed the approach of the Third Circuit, which held that specially qualified individuals such as Arons could not collect "attorneys' fees" for doing work similar to that of an attorney, but could collect for expert consulting services. See id. at * 4 (citing Arons v. New Jersey State Bd. of Educ., 842 F.2d 58 (3d Cir.1988)).

The district court then stated that it was "in general agreement" with the district courts in Borough of Palmyra Bd. of Educ., v. R.C., No. 97-6119, 31 IDELR ¶ 3 (D.N.J. July 29, 1999) and Connors v. Mills, 34 F.Supp.2d 795 (N.D.N.Y.1998) and that, insofar as the Murphys' claim for Arons's fees was allowable, it was "subject to a substantial discount." Murphy, 2003 WL 21694398 at *8. The district court found that Arons's time records were sufficient, notwithstanding the fact that there was no evidence that Arons kept "contemporaneous time records"; unlike attorneys, the district court observed, experts and consultants are not required to keep such records and her "certifications" of services allowed the claims for fees to be considered. Id. at 16.

The district court determined that Arons's fees for consulting services were compensable from the time the Murphys requested an impartial hearing on September 3, 1998, until the Murphys became "prevailing parties" under the IDEA on March 1, 2000, the date of the district court's ruling in their favor. Id. at *9. The district court stated that it did not use the date of this Court's affirmance because the Arons were represented by counsel at that time, and there was no evidence before the court that Arons had rendered any advice regarding the appeal. Id. at 18 n. 10.

The court considered which of Arons's services, within the above-described temporal parameters, were compensable under the IDEA based on the standards set forth in Palmyra and Connors. Id. at 18-20. Following the Palmyra court, Judge Haight found that the market rate for Arons's services was $200 per hour. Id. at 20. The court determined that the Murphys' claims for mileage costs due to Arons's lack of a driver's license were not compensable. Id. Because the Murphys had not yet paid Arons, the court ruled that an award of pre-judgment interest was not warranted. See id. at 22. The court concluded that the Murphys were entitled to recover $8,650 for Arons's fees from Arlington. Id.

On August 20, 2003, Arlington timely filed a notice of appeal from the district court's July 22, 2003 Memorandum Opinion and Order.

DISCUSSION

A. Standards of Review

We generally review a district court's award of attorneys' fees under the IDEA for abuse of discretion. See G.M. ex rel. R.F. v. New Britain Bd. of Educ., 173 F.3d 77, 80 (2d Cir.1999). However, where an appellant challenges "a district court's interpretation of the fee statute itself, our review of this legal issue is de novo." J.C. ex rel. C. v. Regional Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 123 (2d Cir.2002) (citing Doyle v. Kamenkowitz, 114 F.3d 371, 374 (2d Cir.1997); Mautner v. Hirsch, 32 F.3d 37, 39 (2d Cir.1994)). Thus, we review the district court's interpretation of the IDEA's fee-shifting provision de novo, and its fee award for abuse of discretion.

B. Whether the Murphys May Recover Fees for Expert Consultation Under the IDEA

It is a question of first impression in this Court whether a prevailing party under the IDEA may recover fees for the services of an educational consultant under the IDEA's fee-shifting provision.⁵ Under the IDEA, "[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C. § 1415(i)(3)(B). Arlington does not dispute that the Murphys constitute a prevailing party; however, Arlington argues that the Murphys, who proceeded pro se in the district court, cannot recover for Arons's fees because she is not an attorney and the IDEA does not otherwise allow a prevailing party to recover fees for experts such as Arons. The Murphys and Public Citizen, Inc. as amicus curiae argue that the IDEA's use of the word "costs" should be interpreted to allow reimbursement for expert fees.

Two sister circuits, focusing exclusively on the text, have recently concluded that, although the IDEA's fee provision appears to contemplate that costs include something more than attorney's fees, it "does not specifically authorize an award of costs or define what items are recoverable as costs," and that absent a specific authorization for the allowance of expert witness fees, "federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920." Neosho R-V Sch. Dist. v. Clark ex rel. Clark, 315 F.3d 1022, 1031 (8th Cir.2003); see also T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 482 (7th Cir.2003).

While we appreciate—and in practice honor, wherever possible—the virtues of relying solely on statutory text, at times text without context can lead to results that Congress did not intend. In our view, although "costs" is a term of art that generally does not include expert fees in civil rights fee-shifting statutes, we believe that Supreme Court precedent, the legislative history of the IDEA upon which the Supreme Court relied in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), abrogated by statute, 42 U.S.C. § 1988(c), and Congressional action in the aftermath of the Supreme Court's ruling in Casey, require us here to find that Congress intended to and did authorize the reimbursement of expert fees in IDEA actions.

By way of background, in Crawford Fitting Co. v. J.T. Gibbons, Inc., the Supreme Court, addressing fee-shifting for expert witnesses under Federal of Civil Procedure 54(d...