Moore v. Crestwood Local School Dist.

• Decision Date: 03 August 1992
• Docket Number: No. 5:90 CV 1428.,5:90 CV 1428.
• Citation: 804 F. Supp. 960
• Parties: John and Kathy MOORE, Plaintiffs, v. CRESTWOOD LOCAL SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Northern District of Ohio

804 F. Supp. 960

John and Kathy MOORE, Plaintiffs, v. CRESTWOOD LOCAL SCHOOL DISTRICT, Defendant.

No. 5:90 CV 1428.

United States District Court, N.D. Ohio, E.D.

August 3, 1992.

COPYRIGHT MATERIAL OMITTED

John M. Dohner, Buckingham, Doolittle & Burroughs, Akron, Ohio, for plaintiffs.

Susan Snyder McGown, Ronald J. Habowski, Gary L. Pierce, Christley, Herington, Pierce, Silver & Habowski, Aurora, Ohio, for defendant.

ORDER

SAM H. BELL, District Judge.

I. Introduction

On August 8, 1990, plaintiffs John and Kathy Moore filed the instant action seeking recovery of attorney fees and costs incurred by them in a due process hearing and related proceedings to the Individuals With Disabilities Education Act, 20 U.S.C. § 1400 et. seq., and specifically 20 U.S.C. § 1415(e) hereinafter "IDEA". On the 4th of November, 1991, this court denied defendant Crestwood Local School District's motion for summary judgment and granted plaintiffs' motion for summary judgment, instructing plaintiffs' counsel to submit an itemized account of fees and costs incurred in the relevant proceedings. On December 5, 1991, plaintiffs submitted this account. On the 5th of February, 1992, this matter was referred to Magistrate Gallas, who scheduled and held a hearing on March 16, 1992. While the hearing was pending, plaintiffs raised their total fee and cost request to $48,065.27. On the 4th of June, 1992, the Magistrate issued his report and recommendation that plaintiffs be awarded a total of $21,834.50 of their request for attorney fees and $531.90 of their request for additional charges. On June 12, 1992, the plaintiffs filed a timely objection to the Magistrate's report. This court shall, pursuant to 28 U.S.C. § 636 and pertinent case law, conduct a de novo review of the Magistrate's report and recommendation.¹

II. Background and Prior Proceedings

At the attorney's fee hearing, as noted by the Magistrate, the defendant "presented arguments which would have been more suitably presented to the Sixth Circuit than to this court." (Magistrate's Report at 4) While this court stands firmly behind its order granting plaintiffs summary judgment, the court shall briefly revisit that order to address defendant's primary argument and to provide context to the following opinion.

The plaintiffs in this action, the parents of Kevin Moore, a handicapped child, moved to the defendant school district and were unable to reach an agreement on which educational programs and services were appropriate for Kevin. Frustrated with this stalemate, plaintiffs consulted an attorney who formally requested an impartial due process hearing pursuant to IDEA. This request initially outlined five (5) areas of concern. Several weeks later, the parties conducted an IEP conference to address the issues raised in the Moore's hearing request. At this conference, the defendant agreed to modify Kevin's IEP in accordance with plaintiffs' wishes.

A few days later, the plaintiffs' attorney wrote the defendants to request an additional topic for consideration at the due process hearing, an extended school year (ESY). The plaintiffs then sought a further broadening of the hearing officer's review, seeking an assessment of the propriety of the school district's behavior modification techniques. On the 1st of May, 1990, the due process hearing was held. The hearing officer's decision held that the first five requests of plaintiffs had been rendered moot by parties' agreement at the IEP conference and granted plaintiffs an extended school year and other relief. Following the hearing officer's decision, plaintiffs requested payment of their attorney's fees by the defendant. This request was denied. Plaintiffs then filed suit in this court seeking recovery of fees and costs pursuant of 20 U.S.C. § 1415(e)(4)(B). While this suit was actively pending, the defendant counterclaimed for fees, and the parties engaged in unexceptional discovery and motion practice. At pretrial conference, the parties agreed that their cross-motions for summary judgment were to resolve this case.

On summary judgment, the parties directed their efforts to the question of which was the prevailing party at the administrative level, and thus entitled to fees and costs. With the essential underlying facts undisputed, this question was the focus of the court's inquiry. This court granted plaintiffs' motion, noting that:

because of the very real fiscal and emotional impact IDEA cases evoke, this court has detailed in length a conclusion which could simply be inferred from the barest of facts. In other words, the plaintiff commenced the administrative litigation and, by its conclusion, succeeded in having a majority of their requests granted.

Moore v. Crestwood Local School District, No. 5:90 CV 1428, slip op. at 18 (N.D.Ohio Nov. 4, 1991) (order granting plaintiffs' motion for summary judgment) hereinafter "Summary Judgment Order".²

At the attorney's fees hearing, the defendant asserted that the plaintiffs did not succeed at the due process hearing because the hearing officer's grant of an ESY (extended school year) was not a proper remedy under IDEA.³ (Tr. at 9) In support of this proposition, defendant relies upon Cordrey v. Euckert, 917 F.2d 1460 (6th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991) In so doing, the defendant is clearly in error. In Cordrey, the Sixth Circuit explicitly approved the use of an ESY if this summer program "is necessary to avoid something more than adequately recoupable regression" and is "necessary to permit the child to benefit from his instruction." Cordrey, 917 F.2d at 1473. While this court was never asked to review the merits of the hearing officer's decision, it was specifically noted in the summary judgment order that "an extended school year program can be considered an appropriate program under IDEA". (Summary Judgment Order at 13) Indeed, this court further noted that the hearing officer determined that "Kevin Moore requires a consistent behavior modification program for the current summer vacation in order to avoid significant regression without recoupment during the 1990-1991 school year...." (Id.) Accordingly, this court must agree with the Magistrate's conclusion that the defendant's arguments are not only inappropriate at this juncture, but also are unsupported by governing caselaw.

III. Plaintiffs' Objection to the Fee Award

A. Rates & Hours

As correctly noted in the Magistrate's opinion, IDEA specifically provides for recovery of attorney fees and costs. 20 U.S.C. § 1415(e)(4)(B). Moreover, it is now clear that this provision permits plaintiffs prevailing at the administrative level to bring a separate action in district court for recovery of fees. Eggers v. Bullitt County School District, 854 F.2d 892, 898 (6th Cir.1988); Moore v. District of Columbia, 907 F.2d 165 (D.C.Cir.1990) vacating 886 F.2d 335 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990).

The first substantive portion of the magistrate's recommendation determined the hourly rate of compensation to which plaintiff's counsel was entitled:

Defendants have no objections to the hours claimed by plaintiffs' counsel and hourly rates of $85 per hour general rate and $150 per hour for hearing time has been substantiated by plaintiffs as representing the "hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, experience and reputation" in accordance with § 1415(e)(4)(F)(ii). For the purpose of litigating the attorney fee case, plaintiffs' counsel claims rates of $125 and $135 per hour.

(Report at 9) The Magistrate apparently approved the application of the 85/150 dollars per hour rate for time spent at the administrative level. (Report at 11) As for time spent on the fee petition in this court, the Magistrate applied the following rate of remuneration:

Since a hearing on plaintiffs' attorney fee request was required this court finds that plaintiffs should be compensated at their counsel's current rate of $135.00 per hour for approximately 3 hours expended at the hearing with the remainder compensated at the out-of-court rate of $85.00 per hour that counsel charged in the case-in-chief.

(Report at 12) The plaintiffs object to this finding, arguing that the Magistrate:

erred in determining that the hourly rate of the Plaintiff's counsel during the Federal Court litigation, should be $135.00 for in court time and $85.00 for out-of-court time. The Magistrate Judge has made an improper comparison in reviewing the testimony given at the hearing before him. The testimony was that the counsel for Plaintiffs during the Due Process Hearing charged $85.00 per hour for out-of-court time and $150.00 per hour for in-court time. Plaintiffs' counsel further testified that the prevailing rate for his services now is a flat $135.00 per hour, not a mixed in-court/out-of-court rate. These rates were confirmed to be reasonable by a corroborating witness, Attorney David G. Umbaugh, and were not contested by counsel for the Defendant. The hourly rate calculation should be pursuant to the rates identified as reasonable by the testimony given at the hearing, and not a mix of what Plaintiffs' counsel charged over two years ago with what he is charging today.

(Plaintiffs' Objections to the Report and Recommendation of Magistrate Judge, James S. Gallas, Docket # 45 at 6) hereinafter "Plaintiffs' Objections" (emphasis added). This court finds plaintiffs' arguments persuasive.

Although case law on this precise subject is scarce, both logic and case authority suggest that "plaintiffs are entitled to recover attorney fees at the market rates that were current at the time the services were rendered." Kerr Center Parents Assoc. v. Lake Oswego School District, 1990 WL 103709, 1990 U.S.Dist. LEXIS 8871 (D.Or.1990). See Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984) ("`reasonable fees'...