Shapiro ex rel. Shapiro v. Paradise Valley Unified

• Decision Date: 06 July 2004
• Docket Number: No. 02-16786.,No. 02-17000.,02-16786.,02-17000.
• Citation: 374 F.3d 857
• Parties: Isadora SHAPIRO, by and through her parents and natural guardians, Gary SHAPIRO and Laurie Shapiro, Plaintiff-Appellant, v. PARADISE VALLEY UNIFIED SCHOOL DISTRICT NO. 69, Defendant-Appellee. Isadora Shapiro, by and through her parents and natural guardians, Gary Shapiro and Laurie Shapiro, Plaintiff-Appellee, v. Paradise Valley Unified School Opinion District No. 69, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 857

374 F.3d 857

Isadora SHAPIRO, by and through her parents and natural guardians, Gary SHAPIRO and Laurie Shapiro, Plaintiff-Appellant, v. PARADISE VALLEY UNIFIED SCHOOL DISTRICT NO. 69, Defendant-Appellee.

Isadora Shapiro, by and through her parents and natural guardians, Gary Shapiro and Laurie Shapiro, Plaintiff-Appellee, v. Paradise Valley Unified School Opinion District No. 69, Defendant-Appellant.

No. 02-16786.

No. 02-17000.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2004.

Filed July 6, 2004.

COPYRIGHT MATERIAL OMITTED

Stephen Walker, Beachwood, OH, for the plaintiff-appellant and cross-appellee.

Gary L. Lassen, Jennings, Strouss & Salmon, Phoenix, AR, for the defendant-appellee and cross-appellant.

Appeals from the United States District Court for the District of Arizona, Robert C. Broomfield, District Judge, Presiding. D.C. Nos. CV 95-02377 RCB, CV 95-02377 RCB.

Before: TASHIMA and CLIFTON, Circuit Judges, and LEIGHTON, District Judge.^*

TASHIMA, Circuit Judge:

Plaintiff-Appellant Isadora Shapiro ("Dori"), by and through her parents, Gary and Laurie Shapiro, filed a complaint in the district court pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487, seeking review of administrative decisions regarding the educational program offered by Defendant-Appellee Paradise Valley Unified School District ("PVUSD") for Dori, who is hearing impaired. The subject of this third appeal is the district court's award of attorney's fees to the Shapiros, pursuant to 20 U.S.C. § 1415(i)(3)(B), which excluded fees for work performed by their attorney prior to his admission to practice pro hac vice in state court. PVUSD cross-appeals the district court's determination of prevailing-party status under the IDEA attorney's fee provision, as well as the amount of the award. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court in all respects.

BACKGROUND

Dori was enrolled at the Central Institute for the Deaf ("CID") in St. Louis, Missouri, during the school years 1991-1992, 1992-1993, and 1993-1994. During the summers of 1992 and 1993, she received services through PVUSD, her local school district in the Phoenix area. PVUSD created a program for the hearing impaired for the school year 1994-1995 but, after several meetings with PVUSD, the Shapiros decided to enroll their daughter at CID again.¹

Because the parties disagreed about the proper placement for Dori, a due process hearing was held.² The hearing officer Harold Merkow, concluded that PVUSD's program complied with the IDEA but that PVUSD had to reimburse the Shapiros for the 1994-1995 costs of educating Dori. PVUSD appealed, and the appellate hearing officer concluded that PVUSD had offered a free and appropriate public education and that the Shapiros were not entitled to a reimbursement. The Shapiros then filed a complaint in the United States District Court for the District of Arizona, which held that PVUSD had violated several procedural requirements of the IDEA, resulting in the "loss of educational opportunity to Dori." The court also found that the Shapiros were entitled to reimbursement for the 1994-1995 school year if CID had offered an appropriate education for Dori. It remanded to the hearing officer for a determination of whether CID was an appropriate educational program and terminated the action. On appeal, we vacated the order terminating the action and remanded for the entry of a stay pending a final determination by the hearing officer. Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 152 F.3d 1159, 1160-61 (9th Cir.1998) (per curiam).

On remand, the Arizona Department of Education referred the matter to Administrative Law Judge ("ALJ") Eric A. Bryant, who raised the issue of the authority of the Shapiros' counsel, Stephen Walker, who was not admitted to the practice of law in Arizona, to represent the Shapiros. Following briefing on the issue, ALJ Bryant concluded, on July 21, 1999, that Walker was not authorized to represent the Shapiros at the administrative hearing because Walker was not a member of the State Bar of Arizona. Walker then petitioned the Maricopa County Superior Court to be admitted pro hac vice and, on February 17, 2000, the Superior Court issued an order authorizing Walker to proceed pro hac vice and ordering ALJ Bryant to admit Walker to represent the Shapiros in the matter. On April 5, 2000, ALJ Bryant ordered that Walker could appear pro hac vice. ALJ Bryant held hearings in August 2000 and, in November 2000, found that CID provided an appropriate educational program. The district court affirmed and awarded the Shapiros $23,804 as reimbursement for the 1994-1995 school year. This court affirmed the judgment of the district court. Shapiro II, 317 F.3d at 1080.

After judgment was entered, the Shapiros moved in the district court for attorney's fees. Although Walker was not admitted to practice pro hac vice in Arizona until February 17, 2000, Walker argued that the oral consent of Merkow, the hearing officer in the original administrative hearing, and the failure of PVUSD to object to his appearance entitled the Shapiros to attorney's fees prior to his admission to practice pro hac vice. The district court rejected the argument that Merkow's consent was sufficient to authorize Walker to practice law in Arizona. Reasoning that Walker had failed to comply with the prescribed rules for admission to practice pro hac vice in Arizona, the district court concluded that the time Walker spent prior to February 17, 2000, was not compensable.³

The district court further concluded that the Shapiros were the prevailing parties for purposes of 20 U.S.C. § 1415(i)(3)(B) and that the fees requested by Walker were reasonable. On August 7, 2002, the district court entered judgment for the Shapiros for $31,000, as attorney's fees.

On August 12, 2002, the Shapiros filed a motion for partial reconsideration, arguing that Walker's fee for his application for pro hac vice status in federal court was paid and the check cashed by the court in January 1996. The district court granted the motion for partial reconsideration, modifying the fee award to include $21,697.50 for pre-June 11, 1996, work before the district court, and $21,000 for work before the Ninth Circuit, resulting in a total award of $73,797.50. The amended judgment was entered on September 3, 2002. The Shapiros filed a notice of appeal from the August 7, 2002, order on September 5, 2002. PVUSD filed a notice of appeal from the amended judgment on October 2, 2002.

STANDARD OF REVIEW

The district court's award of attorney's fees is reviewed for an abuse of discretion. Fischel v. Equitable Life Assurance Soc'y of the United States, 307 F.3d 997, 1005 (9th Cir.2002). The district court's underlying factual determinations are reviewed for clear error and its legal analysis relevant to the fee determination is reviewed de novo. Id.

DISCUSSION

I. The Shapiros' Appeal

The IDEA provides that the district 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). The Shapiros contend that the district court erred in disallowing attorney's fees prior to the date that Walker was admitted to practice pro hac vice in Arizona. They argue that the administrative hearing officer had the authority to waive the pro hac vice requirements orally and that he did so by approving of Walker's representation of the Shapiros.

The district court relied on Z.A. v. San Bruno Park Sch. Dist., 165 F.3d 1273 (9th Cir.1999), in deciding that the Shapiros were not entitled to fees prior to February 2000. In Z.A., the issue was whether "a party, represented by an attorney who is admitted to the United States District Court for the Northern District of California but is not admitted to the California State Bar, may be awarded attorneys' fees for a state administrative proceeding under the IDEA." Id. at 1274. Relying on California caselaw holding that "no person may recover compensation for services as an attorney in California unless he or she was a member of the state bar at the time the services were rendered," Z.A. reasoned that "[a] person is or is not licensed to practice law in a particular forum. There is no halfway." Id. at 1275-76 (citing Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1 (1998)). Because the attorney in Z.A. was not licensed to practice in California, he was not entitled to collect attorney's fees. Id. at 1276.

The Shapiros attempt to distinguish Z.A. on the basis that the right to practice law in California is a legislative decision, whereas, in Arizona, the court determines who is authorized to practice law.⁴ They rely on Hunt v. Maricopa County Employees Merit Sys. Comm'n, 127 Ariz. 259, 619 P.2d 1036 (1980), in which the Arizona Supreme Court stated that "the practice of law is a matter exclusively within the authority of the Judiciary. The determination of who shall practice law in Arizona and under what condition is a function placed by the state constitution in this court." Id. at 1038-39.

Hunt, however, does not advance the Shapiros' argument. The fact remains that no person is allowed to practice law in Arizona unless that person is an active member of the State Bar, Ariz. S.Ct. R. 31(b), or is authorized to appear pro hac vice, Ariz. S.Ct. R. 33(d). Under Rule 33(d), an attorney who is not a member of the Arizona State Bar may appear pro hac vice "upon compliance with this rule," including an application to appear pro hac vice. The Shapiros do not argue that Walker complied with this rule at the first administrative hearing; instead, they rely solely on their argument that Merkow's and opposing counsel's "consent" authorized Walker to represent the Shapiros.

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