Attorney Fees

Indiana Statutory Support for Payment of Attorney Fees for Prevailing Parent

1. That under 511 IAC 7-15-6(q), a parent represented by legal counsel during the proceedings of a due process hearing, appeal or civil court action is entitled to reimbursement of legal fees if the parent ultimately prevails.

2. That Article 7 requires that determination of which party prevails and the amount of reimbursement to be discussed first by attempted negotiation between the parent and the public agency.

3. That Article 7 provides that if agreement cannot be reached, either party may proceed to civil court for resolution.

4. That because of the provisions of Indiana’s article 7, specifically 511 IAC 7-30-6, for the payment of attorney fees and expert witness fees in this civil rights action, the defendants are responsible for the payment of these costs.

5. That Schools might argue at times for a reduction in the payment of the attorney fees, given that the Plaintiffs often do not win on every single issue in litigation.

6. That when the school fails to give prior written notice, as required by state and federal law, they are precluded from seeking a reduction in the prevailing parents’ attorney fees by virtue of 20 USC § 1415 (i) (3) (F) and (G), which states that the attorney fees cannot be reduced where a school failed to comply with a procedural right afforded to the family pursuant to 20 U.S.C. § 1415.

7. An award of attorneys’ fees can be reduced under 20 USC Section (I) (3) (F) whenever the court finds that:

(i) the parent, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;

(ii) the amount of the attorneys’ fees otherwise authorized to be awarded exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;

(iii) the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

(iv) the attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with subsection (b)(7).

8. However, an exception to subsection F is set forth in section G which states: “Exception to reduction in amount of attorneys’ fees. The provision of subparagraph (F) shall not apply (emphasis added) in any proceeding if the court finds that the State or local educational agency unreasonably protracted final resolution of the action or there was a violation of this section.” (emphasis added).

9. That one of the many examples of procedural rights of the child that were violated was 20 USC § 1415 (3) (A) (B) which requires prior written notice, as defined in that statute.

10. That 20 U.S.C. § 1415 (b) (3) provides that (1) prior written

notice that meets the requirements of paragraph (c) of this section must be given to the parents of a child with a disability within a reasonable time.

11. Subsection (b) (3) Prior written notice must be given to a parent when the district:

(i) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or

(ii) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

8. Subsection (c) Content of Written Notice. The notice required by subsection (b) (3) must include:

“(1) A description of the action proposed or refused by the agency;

(2) An explanation of why the agency proposes or refuses to take the action;

(3) A description of any other options that the agency considered and the reasons why those options were rejected;

(4) A description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;

(5) A description of any other factors that are relevant to the agency’s proposal or refusal;

(6) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

(7) Sources for parents to contact to obtain assistance in understanding the provisions of this part.”

13. Courts have assessed costs in IDEA cases under 28 U.S.C. § 1920, governing

the taxation of costs generally in federal litigation.

14. Specifically, 28 U.S.C. § 1920 provides: A judge or clerk of any court of the

United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

SOME CASE LAW SUPPORTING THE PAYMENT OF PREVAILING PARENTS’ ATTORNEY FEES

14. That in addition to the statutory support cited above, case law supports the Plaintiffs’ position that the Defendants are liable for the Plaintiffs’ attorney fees:

a. Whether a parent recovers attorney fees in connection with hearings related to special education placement depends upon whether the parent is a “prevailing party.” A prevailing party is one whose lawsuit is “causally linked” to the relief achieved; and whose claim is not “frivolous unreasonable, or groundless.” Edie F. v. River Falls School Dist., 243 F.3d 329 (7th Cir. 2001) citing, Zinn v. Shalala, 35 F.3d 273,274 (7th Cir. 1994).

b. The legal action for which attorney fees are sought must be the cause of the change in the school system’s behavior. Not only must there be a legal entitlement to the change, the change must be caused by the legal action and not some other intervening cause. Brown v. Griggsville Community Unit School Dist. 4, 12 F. 3d 681 (7th Cir. 1993).

c. Fischer v. SJB P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) quotes a Supreme Court case, Farrar v. Hobby, 506 U.S. 103, 111-113 (1992) “[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendants behavior in a way that directly benefits the plaintiff.” In these situations, the legal relationship is altered because the plaintiff can force the defendant to do something he otherwise would not have to do.

d. T.D. v. LaGrange School District No. 102, 349 F. 3d 469 (7th Circuit 2003), the court stated on page 2 of the decision:

“In this appeal we address whether the plaintiff, T.D., is a prevailing party under this fee-shifting provision and whether T.D. is thereby eligible for attorney’s fees. The district court, finding that the Supreme Court’s recent decision in Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001), did not apply to the IDEA, held that T.D. was entitled to attorney’s fees. We hold that Buckhannon does apply to the IDEA, but find that T.D. is still entitled to a portion of his attorney’s fees.”

On page 17 of that decision, the court stated: “…IDEA’s fee-shifting provision allows courts to grant attorney’s fees to parents who prevail in an administrative hearing. Indeed, we held Brown v. Griggsville Comm. Unit Sch. Dist. No 4, that the IDEA does allow fees to the prevailing party in administrative hearings. 12F.3d 681, 683-84 (7th Cir. 1993).”

On page 18 of that decision, the court stated: “The Supreme Court has stated that a plaintiff may be considered a “prevailing party” if “they succeed on any significant issue in litigation which rchieves some of the benefit the parties sought in bringing suit.” Hensley, 461 U.S. at 433. (noting that this is a “generous formulation”)”

3. See also a very recent Seventh Circuit case, Evanston Community Consolidated School District Number 65 v. Michael M. and Christine M., parents of John M, No. 02-2867 and 02-3001, decided Feb. 2, 2004 for an analysis of the attorney fees issue.

4. That in Evanston, the hearing officer required the school district to provide compensatory services in the amount of 60 minutes per week of direct (not consultative) occupational therapy services based on the child’s needs and based on a licensing violation by the school. The court stated on page 10 of the opinion: “…reasonable persons could believe the parents were prevailing parties entitled to attorney fees.” On page 11, it stated. “Here … the amount of OT services increased from 30 minutes a week of consultative services to 60 minutes a week of direct services. Moreover, that the award was compensation for a so-called technical licensing violation does not mean that the parents did not prevail. After all, the “prevailing party inquiry does not turn on the magnitude of the relief obtained.” quoting Farrar v. Hobby, 504 U.S. 103, 114 (1992).

Much of the time, when there is a pending due process action, the school and parent are able to reach a settlement agreement. In cases where a settlement is reached, the subject of attorney fees for the parents can be resolved by including it in the settlement agreement.

In cases where the hearing officer orders a change in the legal position of the parties, the attorney fees of the parents are required to be paid by the school.

What is a change in legal position? It does not mean that you have to win on all issues. What it does mean is that the hearing officer has to order something that the school didn't offer to do before the hearing and that ordered item creates a change in the parties' relationship.

In cases where the parents do not settle and then go on to lose at due process, then the parents are responsible for their own attorney fees incurred.

As to case law on that subject:

Supreme Court limits reimbursement of attorney fees under federal statutes

In a 5-4 decision, the U.S. Supreme Court overturned nine federal circuit courts on the question of when plaintiffs are eligible for attorney fee awards as "prevailing parties" under certain civil rights and environmental statutes.

In May 2001, the Court held that Plaintiffs must secure a judgment on the merits of the case or a court-ordered consent decree -- rather than merely bring about a voluntary change in a defendant's conduct -- to be eligible for fees. (Buckhannon Board & Care Home Inc. v. West Virginia Department of Health and Human Resources, 121 S. Ct. 1835 (U.S. 2001).)

Most appellate courts previously had allowed fee awards following voluntary actions, on the ground that the plaintiff had served as a "catalyst" for social change.

Although the court's opinion specifically addressed the fee-shifting provisions in the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA), Chief Justice William Rehnquist noted for the majority that similar provisions appear in many other federal statutes, including the Civil Rights Act of 1964.

The case began with a West Virginia nursing home that was cited for violating a state law requiring that residents be capable of "self-preservation." The home sought injunctive relief in federal district court, alleging that the self-preservation requirement violated the FHAA and the ADA, on the ground that it prohibited nursing homes from accommodating people with disabilities. The state legislature then eliminated the requirement.

The home requested attorney fees as the "prevailing party" under the fee-shifting provision of both federal statutes. The district court denied the request, following precedent from the Fourth Circuit. The appeals court affirmed the denial.

The Supreme Court agreed. It noted that Black's Law Dictionary defines "prevailing party" as one "in whose favor a judgment is rendered, regardless of the amount of damages awarded." The view that a prevailing party is one who has been awarded some relief by a court can be "distilled from our prior cases," the Court said, including case holdings that settlement agreements enforced through consent decrees may serve as bases for fee awards.

These decisions, taken together, "establish that enforceable judgments on the merits and court-ordered consent decrees create the material alteration of the legal relationship of the parties necessary to permit" awards of attorney fees, the Court said.

The catalyst-for-change theory "falls on the other side of the line from these examples," the Court said, because it "allows an award where there is no judicially sanctioned change in the legal relationship of the parties." According to the court, a defendant's "voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change."

The Court also dismissed arguments that (1) the catalyst theory is necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney fees, and (2) that rejection of the theory will deter plaintiffs with meritorious but expensive cases from bringing suit.

"We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence," Rehnquist wrote.

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