Wikol Ex Rel. Wikol v. Birmingham Public Schools Board of Education

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Wikol v. Birmingham Nos. 02-1798/2047

ELECTRONIC CITATION: 2004 FED App. 0074P (6th Cir.) Public Schools

File Name: 04a0074p.06

_________________

UNITED STATES COURT OF APPEALS COUNSEL

FOR THE SIXTH CIRCUIT ARGUED: Richard J. Landau, DYKEMA GOSSETT, Ann

_________________ Arbor, Michigan, for Appellant. Richard E. Kroopnick,

POLLARD, ALBERTSON, NYOVICH & HIGDON,

ANIKA WIKOL, by and X Bloomfield Hills, Michigan, for Appellee. ON BRIEF:

through her next friends, - Richard J. Landau, DYKEMA GOSSETT, Ann Arbor,

Murray and Nanette Wikol, - Michigan, for Appellant. Richard E. Kroopnick, POLLARD,

- Nos. 02-1798/2047 ALBERTSON, NYOVICH & HIGDON, Bloomfield Hills,

Plaintiff-Appellant/ - Michigan, for Appellee.

Cross-Appellee, >

, _________________

-

v. - OPINION

- _________________

BIRMINGHAM PUBLIC -

SCHOOLS BOARD OF - RONALD LEE GILMAN, Circuit Judge. Anika Wikol is

- a child with autism who is eligible for special education and

EDUCATION ,

- related services under the Individuals with Disabilities Act

Defendant-Appellee/ -

(IDEA), 20 U.S.C. §§ 1400-1487. She resides within the

Cross-Appellant. - Birmingham Public School District in Birmingham,

- Michigan. At issue in this case are her parents’ attempts to

N secure reimbursement from Birmingham for Anika’s

Appeal from the United States District Court educational program for the 1998-99 and 1999-2000

for the Eastern District of Michigan at Ann Arbor. academic years.

No. 00-60265—Marianne O. Battani, District Judge.

The Wikols have appealed what they regard as an

Argued: February 5, 2004 inadequate award by the jury. They also seek to recover

attorney fees, costs, and prejudgment interest, all of which the

Decided and Filed: March 10, 2004 district court denied. In its cross-appeal, Birmingham

challenges the timeliness of the Wikols’ appeal with respect

Before: NELSON, GILMAN, and ROGERS, Circuit to all but their claim for attorney fees and costs. For the

Judges. reasons set forth below, we agree that the Wikols’ appeal was

untimely except for these latter items. We accordingly

dismiss the bulk of the Wikols’ claims for lack of appellate

jurisdiction. With regard to their claim for attorney fees and

1

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costs, we vacate the decision of the district court denying such Birmingham would pay “one-half of the costs of any such

relief and remand for reconsideration. program.” Despite the settlement for these prior years,

disputes continued between the Wikols and Birmingham

I. BACKGROUND regarding reimbursement for the Lovaas program in the 1998-

99 and 1999-2000 school years.

When Anika was approximately two-and-a-half years old,

her parents enrolled her in the preprimary impaired program In December of 1999, the Wikols again requested a due

in the Birmingham public schools. The Wikols soon became process hearing to resolve the outstanding reimbursement

dissatisfied with the program. They consequently removed issues. A local hearing officer was appointed in early 2000,

Anika from the public school system and established a but Birmingham objected to the hearing officer’s jurisdiction

full-time home-based alternative program recommended by and requested that the matter be dismissed. Birmingham and

the Lovaas Institute, a non-profit organization that specializes the Wikols ultimately stipulated to the dismissal of the

in educating children with autism. After approximately three Wikols’ request for a due process hearing regarding the two

years in the Lovaas home-based program, the Wikols decided school years in question, opting instead to “seek judicial

to partially transition Anika back into the Birmingham public resolution of the issues.”

schools.

The Wikols brought suit in May of 2000 against

An “individualized education program team” comprised of Birmingham in the United States District Court for the

the Wikols and members of Anika’s school thus convened, Eastern District of Michigan. Eight months later, the Wikols

pursuant to the IDEA, to develop an individualized education moved for summary judgment, arguing that they were entitled

program (IEP) for Anika. At the meeting, Birmingham and to reimbursement from Birmingham for Anika’s home-based

the Wikols could not agree upon Anika’s educational program Lovaas program. The district court granted the Wikols’

because, according to the Wikols, Birmingham refused to motion in part with regard to the 1998-99 school year. It

(1) provide Anika with an IEP that would support her home- concluded that, pursuant to the settlement agreement,

based education, and (2) reimburse the Wikols for their past Birmingham owed the Wikols fifty percent of the “costs” of

expenses in providing Anika with the Lovaas program. the Lovaas program, but that a genuine issue of material fact

existed as to what constituted those costs. With regard to the

This impasse led the Wikols to request a due process 1999-2000 school year, the district court denied the Wikols’

hearing pursuant to 20 U.S.C. § 1415(f). The due process motion for summary judgment in its entirety.

hearing did not occur, however, because the parties reached

a settlement. Under the settlement agreement, dated April 8, The case then proceeded to trial, at the end of which the

1998, Birmingham agreed to pay the Wikols $115,000 “as jury awarded the Wikols approximately $5,000 for costs

reimbursement for necessary educational services actually incurred in providing Anika’s home-based program for the

incurred or reasonably anticipated to be incurred during the 1998-99 school year. As for the 1999-2000 academic year,

1994-95 through 1997-98 school years.” The agreement the jury determined that Birmingham’s school-based

further provided that Birmingham and the Wikols would meet educational program had provided Anika with a “free

to determine Anika’s IEP for the following school years, and appropriate public education,” and therefore declined to

that if a Lovaas or Lovaas-style program were implemented, award the Wikols any reimbursement for that year.

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Following the district court’s entry of judgment on Appellate Procedure, other than the one for attorney fees, the

March 27, 2002, the Wikols timely moved for the recovery of time to file an appeal automatically runs for all parties from

attorney fees and costs pursuant to 20 U.S.C. § 1415, which the entry of the order disposing of the last such remaining

the district court denied. The Wikols appeal from the district motion. The post-decisional motion relevant to this case is of

court’s partial denial of their motion for summary judgment, course the one for attorney fees, which was filed pursuant to

the jury’s verdict concerning the 1999-2000 school year, the Rule 54 of the Federal Rules of Civil Procedure. When a

district court’s denial of their motion for attorney fees and litigant files a Rule 54 motion for attorney fees, the time to

costs, and the district court’s denial of prejudgment interest. file a notice of appeal will run from the disposition of that

Birmingham cross-appeals, challenging the timeliness of the motion “if the district court extends the time to appeal under

Wikols’ appeal as to all issues other than their claim for Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii) (emphasis added).

attorney fees and costs. The plain language of Rule 4 thus stipulates that in order for

the time to file an appeal to be tolled when a party moves for

II. ANALYSIS attorney fees under Rule 54, the district court must

affirmatively act pursuant to Rule 58 of the Federal Rules of

A. Timeliness of the Wikols’ appeal Civil Procedure. Rule 58, in turn, provides that

We must determine, as a threshold issue, whether we have [w]hen a timely motion for attorney fees is made under

jurisdiction to hear the bulk of the issues raised in this appeal. Rule 54(d)(2), the court may act before a notice of appeal

On cross-appeal, Birmingham argues that we do not have has been filed and has become effective to order that the

such jurisdiction because the Wikols filed their notice of motion have the same effect under Federal Rule of

appeal late, outside of the time limits imposed by Rule Appellate Procedure 4(a)(4) as a timely motion under

4(a)(1)(A) of the Federal Rules of Appellate Procedure. Rule 59.

Determining the timeliness of the Wikol’s notice of appeal Fed. R. Civ. P. 58(c)(2) (emphasis added).

requires an analysis of the interplay between Rule 4 of the

Federal Rules of Appellate Procedure and Rules 54, 58, and Rule 58’s reference to “a timely motion under Rule 59” is

59 of the Federal Rules of Civil Procedure. Rule 4(a)(1)(A) initially puzzling, given that Rule 59 neither mentions the

of the Federal Rules of Appellate Procedure provides the filing of a notice of appeal nor refers back to Rule 58. A

generally applicable limitation that a notice of appeal in a number of cross-references are necessary to divine Rule 59’s

civil case must be filed “within 30 days after the judgment or place in the Rule 4, 54, 58, 59 quagmire. The only part of

order appealed from is entered.” A litigant’s compliance with Rule 59 that appears relevant to the timeliness of a notice of

this “mandatory and jurisdictional” requirement is of critical appeal is 59(e), which provides that “[a]ny motion to alter or

importance. 16A Wright et al., Federal Practice and amend a judgment shall be filed no later than 10 days after the

Procedure § 3950.1 (3d ed. 1999). entry of the judgment.” If we then look back to Rule

4(a)(4)(A) of the Federal Rules of Appellate Procedure, we

Exceptions to the 30-day rule exist, however. If a party see that a Rule 59 motion to alter or amend the judgment is

timely files any one of the six post-judgment motions one of the five enumerated motions that automatically resets

enumerated in Rule 4(a)(4)(A) of the Federal Rules of

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the time to file a notice of appeal “from the entry of the order 5. In the alternative, Plaintiffs request that pursuant to

disposing of the . . . motion.” Fed. R. Civ. P. 58 and 59(e), the Court amend its

May 15, 2002 Order to include a provision stating that

We therefore conclude that when a timely motion for the parties’ March 22, 2002 motions to assess fees and

attorney fees is filed under Rule 54, and the district court costs shall be given the same effect under Rule 4(a)(4) of

exercises its discretion under Rule 4(a)(4)(A) to extend the the Federal Rules of [Appellate] Procedure as a timely

time for filing a notice of appeal, the motion for attorney fees motion under Rule 59.

is given the same effect as a Rule 59 motion to amend or alter

the judgment, which, pursuant to Rule 4(a)(4)(A), While this motion was pending in the district court, the

automatically resets the time to file a notice of appeal until Wikols filed their notice of appeal on June 14, 2002. On

the newly characterized Rule 59 motion, formerly a Rule 54 July 11, 2002, the district court granted the Wikols’ motion

motion for attorney fees, is disposed of. See Mendes Junior for an extension of time in which to file a notice of appeal,

Int’l Co. v. Banco do Brasil, 215 F.3d 306, 312 (2d Cir. 2000) ruling in pertinent part that

(“Rule 58 expressly describes some of the temporal

limitations on the district court’s authority to order that a the court grants the plaintiff’s request and pursuant to

timely Rule 54 fee motion have the same effect as a timely Fed. R. Civ. P.[] 58, the March 22nd motion for costs

motion under, for example, Rule 59 (which we will and attorney fees shall have the same effect under Rule

sometimes refer to as a ‘Rule 58/54/59 order’).”). Rule 58 4(a)(4) of the Federal Rules of Appellate Procedure as a

imposes no time limit on when the district court must rule on timely motion under Rule 59. Therefore, the time for

the Rule 54 motion, except that it must act before “a notice of filing a notice of appeal shall run from the date of the

appeal has been filed and has become effective . . . .” This is entry of the Court’s order on the motion for attorney fees,

the nub of the problem, because here the district court acted May 15, 2002.

on the Wikols’ Rule 54 motion after they had filed their

notice of appeal. Birmingham argues that the district court’s July 11, 2002

grant of an extension of time to file the notice of appeal was

On March 22, 2002, the Wikols moved for attorney fees ineffective because it was entered after the Wikols filed their

and costs, which the district court denied on May 15, 2002. June 14, 2002 notice, contrary to the language contained in

The Wikols then attempted to take advantage of the tolling Rule 58 of the Federal Rules of Civil Procedure that limits the

provision of Rule 4(a)(4) in a May 24, 2002 motion to extend district court’s power to act to the time “before a notice of

the time for filing a notice of appeal. Their motion provided appeal has been filed and has become effective . . . .”

in pertinent part as follows: (Emphasis added.) It contends that when the Wikols filed

their notice of appeal on June 14, 2002, the notice became

4. Plaintiffs hereby request that pursuant to Fed. R. Civ. effective immediately; therefore, “[b]y the express terms of

P. 58, the Court order that the parties’ motions for costs Rule 58, the District Court had no authority, on July 11, 2002,

and attorneys’ fees have the same effect under Rule to enter its Order Extending the Time for Filing the Notice of

4(a)(4) of the Federal Rules of Appellate Procedure as a Appeal.”

timely motion under Rule 59.

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In response, the Wikols argue that although they had filed [a] notice filed before the filing of one of the specified

their notice of appeal before the district court entered its Rule motions or after the filing of a motion but before

58/54/59 order, “it is indisputable that the notice of appeal as disposition of the motion is, in effect, suspended until the

to the underlying judgment had not yet become effective.” motion is disposed of, whereupon, the previously filed

They reason that because the notice of appeal was filed notice effectively places jurisdiction in the court of

outside of Rule 4(a)(1)’s prescribed time period, it could only appeals. . . . [A] notice of appeal will ripen into an

become effective upon some action of the district court effective appeal upon disposition of a posttrial motion

triggering one of the exceptions to the 30-day limit. The ....

Wikols conclude that their notice of appeal “became effective

upon the district court’s entry of its July 11, 2002 Fed. R. App. P. 4(a)(4) advisory committee’s notes.

Memorandum and Order.” For the reasons that follow, we

respectfully disagree. Based upon this understanding of the word “effective,” we

hold that the Wikols’ notice of appeal was effective on the

The key issue is whether the notice of appeal became day that it was filed, given that the judgment had been entered

effective prior to the time the district court issued its and that no motions that automatically toll the time to file a

July 11, 2002 order. We look to Rule 4(a)(4)(B)(i) of the notice of appeal were pending. We therefore agree with

Federal Rules of Appellate Procedure for guidance as to the Birmingham that the district court’s July 11, 2002 order did

meaning of the word “effective.” This portion of Rule 4 not comply with the time requirements of Rule 58.

provides as follows:

As a final comment on this issue, we cannot help but

If a party files a notice of appeal after the court express dismay over the complexity of the rules regarding the

announces or enters a judgment—but before it disposes timeliness of an appeal under the present circumstances.

of any motion listed in Rule 4(a)(4)(A)—the notice There should be no need to have to parse the language of four

becomes effective to appeal a judgment or order, in different rules of procedure in order to find an answer to

whole or in part, when the order disposing of the last whether an appeal is timely filed. See generally, Kenneth J.

such remaining motion is entered. Servay, The 1993 Amendments to Rules 3 and 4 of the

Federal Rules of Appellate Procedure—A Bridge Over

Rule 4(a)(4)(B)(i) does not apply here because the Wikols’ Troubled Water—Or Just Another Trap?, 157 F.R.D. 587,

notice of appeal was filed after the entry of the order 605 (1994) (noting that the amended Rule 4 “concerning the

disposing of their Rule 54 motion, not before. The rule effect of post-judgment motions for attorney’s fees” on the

suggests, however, that the concept of “effectiveness” is timeliness of a notice of appeal creates a “jurisdictional

limited to delaying the transfer of jurisdiction to the appellate trap.”). The basic problem is that five of the six post-

court from an otherwise timely filed notice of appeal until the judgment motions enumerated in Rule 4(a)(4)(A)

relevant post-judgment motion is decided. Supporting this automatically extend the time to file an appeal, but the

interpretation are the advisory notes to Rule 4, which explain remaining one (a motion for attorney fees pursuant to Rule

that 54) does not. Perhaps this is a topic that should be considered

by the Advisory Committee to the Federal Rules of Appellate

Procedure.

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In any event, we have no choice but to dismiss the Wikols’ during the 1998-99 academic year. Birmingham does not

appeal as untimely with respect to all but their claim for contest the Wikols’ prevailing-party status.

attorney fees and costs. “[E]ven where the attorney’s fee

motion is filed before the notice of appeal, under the wording We review a district court’s decision of whether to award

of [Rule 58], that motion would not extend the appeal time attorney fees under the “abuse of discretion” standard.

unless the district court also extended the appeal time before Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993). A district

the notice of appeal was filed.” Servay at 606. This leaves us court abuses its discretion when it relies upon clearly

with the remaining issue regarding the Wikols’ request for erroneous factual findings, applies the law improperly, or uses

attorney fees and costs, as to which the appeal was an erroneous legal standard. Id.

indisputably timely. We now turn our attention to this issue.

The IDEA’s fee-shifting provision is to be interpreted

B. The district court’s denial of attorney fees and costs consistent with 42 U.S.C. § 1988, the attorney-fees provision

to the Wikols for civil rights actions. Id. Sixth Circuit case law requires

that a district court award attorney fees to a prevailing party

Following the district court’s entry of judgment, the Wikols where no special circumstances militate against such an

filed a motion for the recovery of attorney fees and costs award. Berger v. City of Mayfield Heights, 265 F.3d 399, 406

pursuant to 20 U.S.C. § 1415. The district court denied the (6th Cir. 2001) (“[W]e have previously observed that

Wikols’ motion, reasoning that although they were although the Supreme Court has held [that] . . . it is within the

technically the prevailing parties, they did not prevail on the district court’s discretion to award attorney’s fees under

bulk of their case and they were therefore not entitled to section 1988, in the absence of special circumstances a

attorney fees or costs. On appeal, the Wikols argue that the district court not merely may but must award fees to the

district court erred because they were undeniably the prevailing plaintiff.”) (quotation marks and citation omitted).

prevailing party and because there were no “special

circumstances” justifying a denial of fees. The Ninth Circuit has adopted a two-prong test to

determine whether special circumstances exist, presumably in

The IDEA provides that “[i]n any action or proceeding an effort to define “special circumstances” more precisely.

brought under this section, the court, in its discretion, may Under this test, a court must consider “(1) whether awarding

award reasonable attorneys’ fees as part of the costs to the fees would further the congressional purpose in enacting [the

parents of a child with a disability who is the prevailing IDEA], and (2) the balance of the equities.” Barlow-Gresham

party.” 20 U.S.C. 1415(i)(3)(B). To be considered a Union High School v. Mitchell, 940 F.2d 1280, 1285 (9th Cir.

“prevailing party” for the purpose of attorney fees, a plaintiff 1991). Although the use of such a test gives the appearance

must “succeed on any significant issue in litigation which of a systematic approach to defining “special circumstances,”

achieves some of the benefit the part[y] sought in bringing we question whether the Ninth Circuit’s factors, due to their

suit.” Berger v. Medina City Sch. Dist., 348 F.3d 513, 526 vagueness, render the test any more useful than the customary

(6th Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S. 424, case-by-case analysis.

433 (1983)). The district court found that the Wikols were a

prevailing party because they had obtained a favorable The Fourth Circuit has rejected the Mitchell test, reasoning

judgment regarding reimbursement for Anika’s schooling that it “contains no real standards and provides no legitimate

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reason for departing from the usual rule of awarding fees under the Eckerhart standard but, under this court’s

reasonable fees to prevailing plaintiffs under fee-shifting precedents, their “limited success” should not have acted as

statutes.” Doe v. Bd. of Educ. of Baltimore County, 165 F.3d a total bar to recovery.

260, 264 n.2 (4th Cir. 1998) (holding that an attorney-parent’s

representation of his own daughter in an IDEA proceeding Birmingham also argues that the Wikols are barred from

constituted special circumstances that justified the denial of attorney fees under 20 U.S.C. § 1415(i)(3)(D), which

an award of attorney fees). But see Borengasser v. Arkansas provides that a plaintiff will not be awarded attorney fees

State Bd. of Educ., 996 F.2d 196, 199 (8th Cir. 1993) (holding where he or she rejects a written settlement offer and the court

that the district court abused its discretion in not awarding finds that the relief obtained by the plaintiff is not more

attorney fees to the parents of a disabled child in an IDEA favorable than the offer of settlement. The settlement-offer

action where the school district had argued a lack of effort to exception to an award of attorney fees might indeed bar the

resolve the dispute on the part of the parents’ attorney). We Wikols from recovery, but the district court did not make the

agree with the Fourth Circuit’s approach that attorney-fees requisite finding that the relief obtained by the Wikols was

awards should be analyzed on a case-by-case basis, without less favorable than whatever offer Birmingham may have

attempting to apply any predetermined formula. made. On remand, the district court should therefore consider

20 U.S.C. § 1415(i)(3)(D)’s potential applicability to this

Birmingham argues that the Wikols’ allegedly “false and case.

misleading” billings to Birmingham constitute special

circumstances that justify denying their request for attorney III. CONCLUSION

fees. But this court has rejected the argument that a plaintiff’s

bad acts are special circumstances warranting the denial of For all of the reasons set forth above, we conclude that the

attorney fees. Price v. Pelka, 690 F.2d 98, 101 (6th Cir. Wikols’ notice of appeal was untimely as to the bulk of their

1982) (holding that the plaintiff’s perjury was not a special claims. We therefore have jurisdiction only over the district

circumstance that warranted a denial of attorney fees in a court’s denial of attorney fees and costs, which decision we

housing discrimination case). Given this precedent, the vacate and remand with instructions to reconsider.

record does not support a finding of special circumstances

warranting the denial of attorney fees to the Wikols, even if

we assume that some billings were false or misleading. We

therefore remand the issue of attorney fees and costs to the

district court.

On remand, the district court should take into consideration

the extent to which the Wikols succeeded on their claims. See

Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (“[W]here the

plaintiff achieved only limited success, the district court

should award only that amount of fees that is reasonable in

relation to the results obtained.”) The Wikols may well

receive reimbursement for only a fraction of their total legal