Petition for Writ of Certiorari — Arlington Central School Dist. Bd. of Ed. v. Murphy

Supreme Court brief2006

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TABLE OFAPPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Second Circuit Decided March

29, 2005, Amended April 15, 2005 ...........

Appendix B — Memorandum Opinion And Order Of

The United States District Court For The Southern

District Of New York Dated July 22,2003 .....

Page

]

OPINIONS ENTERED IN THIS CASE

The initial opinion of the United States Court of Appeals

for the Second Circuit was rendered on March 29, 2005. The

opinion was amended on April 15, 2005 and is officially

reported at Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,

402 F.3d 332 (2d Cir. 2005). (App. A). The United States

Court of Appeals for the Second Circuit affirmed a July 22,

2003 Memorandum Opinivun and Order of the United States

District Court for the Southern District of New York,

unofficially reported as Murphy v. Arlington Cent. Sch. Dist.

Bd. of Educ., No. 99 Civ. 9294 (CSH), 2003 WL 21694398

(S.D.N.Y. July 22, 2003). (App. B).

STATEMENT OF JURISDICTION

The Court of Appeals entered its Judgement on March

29, 2005. An Amended Judgment was entered on April 15,

2005. No petition for rehearing was filed in this case.

Jurisdiction is conferred upon this Court pursuant to

28 U.S.C. § 1254(1).

STATUTE INVOLVED IN THIS MATTER

The focus of this matter turns on the interpretation and

application of the IDEA’s attorneys’ fees shifting provision,

20 U.S.C. § 1415(i)(3)(B).

Title 42 United States Code, Section 1415(i)(3)(B).

Award of attorneys’ fees.

In 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.

STATEMENT OF THE CASE

I. Statement of Facts

The Arlington Central School District (“District”) is a

public school district duly organized, existing and operating

consistent with the Education Law of the State of New York.

See N.Y. Educ. Law § 1804 (McKinney Supp. 2005).

Under the IDEA, the District is a “local educational

agency,” see 20 U.S.C. § 1401(15)(A), responsible for the

identification and evaluation of children with disabilities

residing within its territorial boundaries, see 20 U.S.C.

§ 1412(a)(3)(A).

The IDEA aims “to ensure that all children with

disabilities have available to them a free appropriate public

education that emphasizes special education and related

services designed to meet their unique needs.” 20 U.S.C.

§ 1400(d)(1)(A). Once identified, the District is responsible

to provide resident children with disabilities between the ages

of 3 and 21 with a “free appropriate public education.”

See 20 U.S.C. § 1412(a)(1)(A). A free appropriate public

education is crafted through the collaboration of the disabled

child’s parents, teachers, and school district administrators

and is recorded in an individualized education program

(“IEP”). See 26 U.S.C. § 1414(d). The IEP is, in brief, a

comprehensive statement of the educational needs of

a disabled child and the specially designed instruction

and related services to be employed to meet those needs.

See 20 U.S.C. § 1401(11). In New York State, the IEP is

produced by a Committee on Special Education (the “CSE”),

whose members are appointed by the board of education

or trustees of the school district. See N.Y. Educ. Law

§ 4402(1)(b)(1) (McKinney Supp. 2005).

To achieve its goals, “[t]he IDEA requires that states {that

receive certain federal funds] offer parents of a disabled

student an array of procedural safeguards designed to help

ensure the education of their child.” Polera v. Board of Educ.

of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 482

(2d Cir. 2002). Under the IDEA, a parent may “present

complaints with respect to any matter relating to the

identification, evaluation, or educational placement of the

child, or the provision of a free appropriate public education

to such child.” 20 U.S.C. § 1415(b)(6). “[T]he parents

involved in such complaint shall have an opportunity for an

impartial due process hearing,” 20 U.S.C. § 1415(f)(1), -

which, under applicable provisions of New York State law,

is conducted by a hearing officer appointed by the local board

of education, see N.Y. Educ. Law § 4404(1) (McKinney Supp.

2005).

The underlying claim from which this petition stems was

for tuition reimbursement for the unilateral placement of

Joseph Murphy by his parents during the 1998/99 and 1999/

00 school years in a private institution that services disabled

students exclusively. Joseph’s parents unilaterally enrolled

him in the Kildonan School in Amenia, New York

(“Kildonan”) prior to a scheduled meeting of the CSE held

on July 30, 1998. Kildonan has not been approved by the

New York State Education Department (“NYSED”) to

instruct student with disabilities.' By letter dated September

1. The IDEA requires that each publicly placed student receive

special education services which meet the standards of the NYSED.

See 20 U.S.C. § 1412(a)(11)(A)(Gii)(ID. Private schools which wish

to accept publicly placed students must comply with various

regulations of the NYSED. See, e.g., N.Y. Comp. Codes R. & Regs.

tit. 8(A-2), §§ 200.4, 200.7, 200.9, 200.15 (2004). Boards of

education in New York have no authority to contract for the placement

of a child with a disability in a private school which has not been

approved by the NYSED to instruct students with disabilities. See

N.Y. Educ. Law § 4402(2)(b)(2) (McKinney Supp. 2005). Kildonan

is not on the State’s list of approved private schools because it does

not provide instruction consistent with the academic standards for

content and rigor of this State, which is one component of a free

appropriate public education. See 20 U.S.C. § 1401(8).

3, 1998, the parents requested an impartial hearing to determine

whether or not the District should be required to reimburse them

for the costs associated with the unilateral placement of Joseph

at Kildonan along with costs associated with private speech/

language therapy secured by them at their own expense during

the 1997/98 school year.

Generally, “no private school child with a disability has an

individual right to receive some or all of the special education

and related services that the child would receive if enrolled in a

public school.” 34 C.F.R. § 300.454(a). The IDEA provides that

a local school district is not required to pay for the cost of

“education of a child with a disability at a private school or facility

if that agency made a free appropriate public education available

to the child and the parents elected to place the child in such

private school or facility. See 20 U.S.C. § 1412(a)(10)(C\(i);

34 CER. § 300.403.

The IDEA does not require schoo! districts to pay for tuition

at private schools except under limited circumstances.

See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 159-60

(1* Cir. 2004). When parents unilaterally withdraw their child

from the public school and seek tuition reimbursement for their

private placement, they do so at their own peril, having no

guarantee that they will win. See School Comm. of Burlington

v. Department of Educ., 471 U.S. 359, 373-74 (1985).

Reimbursement is warranted only where, after a hearing, it

is determined that the services offered by the school district

are inadequate or inappropriate, the services selected by the

parents are appropriate, and equitable considerations support

the parents’ claim. See 20 U.S.C. § 1412(a)(10)}(C\ii); 34 C.F.R.

§ 300.403(c). This legal analysis is structured to serve the public

interest that public funds not be spent to support inappropriate

private placements. See 64 Fed. Reg. 12,602 (Mar. 12, 1999)

(discussion of comments to 34 C.F.R. § 300.403(c)).

Following the parents’ hearing request, the District

appointed Leonard W. Krouner from the State’s list of

certified hearing officers to serve as the impartial hearing

officer (“IHO”) in this matter. The parents were assisted

during the hearing by Ms. Marilyn Arons, who described

herself throughout the hearing as a “non-lewyer

representative.” At the hearing, Ms. Arons performed, without

a license to practice law, many functions traditionally

attributed to licensed attorneys. She made an opening

statement, she conducted direct and cross examination of

witnesses, she made a motion for a directed verdict, she raised

objections and she prepared a post-hearing memorandum of

law. After a lengthy hearing, the IHO determined that the

District had not afforded Joseph a free appropriate public

education, held that the parents appropriately placed him at

Kildonan, and awarded the parents reimbursement for

Kildonan’s tuition and private speech/language therapy

secured by them at their own expense during the 1997/98

_school year.”

With respect to due process hearings, the IDEA permits

each state to determine whether it will provide a single-tier

or two-tier administrative review process. See 20 U.S.C.

§ 1415(g). New York has opted for the two-tier approach.

See N.Y. Educ. Law § 4404 (McKinney Supp. 2005); accord

Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992). A party

2. While the district court could “discern [no] legitimate

objective of advocacy,” see Murphy v. Arlington Cent. Sch. Dist. Bd.

of Educ., No. 99 Civ. 9294, 2003 WL 21694398 at *1 n.F(S.D.N_Y.

July 22, 2003), aff'd, 402 F.3d 332 (2d Cir. 2005), in directing the

district court’s attention to the fact that since his service in this matter,

Mr. Krouner was sentenced to six months in prison after pleading

guilty in Albany County (NY) to multiple charges of fraud and has

surrendered his law license, the District’s notice was simply to

illustrate that attorneys, unlike non-lawyer representatives, lay

advocates and educational consultants, are subject to professional

rules of conduct and are open to negative consequences for failing

to abide by those rules.

dissatisfied with a decision of the hearing officer has the right

to appeal the hearing officer’s decision to a SRO. See N.Y.

Educ. Law § 4404(2) (McKinney Supp. 2005). After these

administrative remedies have been exhausted, a party may

bring a special proceeding in state court or a federal action

under Section 1415(i1)(2) of the IDEA. See 20 U.S.C.

§ 1415()(2)(A); N.Y. Educ. Law § 4404(3) (McKinney Supp.

2005).

By petition dated August 17, 1999, the District sought

review of the IHO’s determination by the State Review

Officer of the New York State Education Department

(the “SRO”) as provided by the New York Education Law.

See N.Y. Educ. Law § 4404(2) (McKinney Supp. 2005).

Rather than answer the allegations made in the District’s

petition, the parents filed pro se an action for injunctive relief

on August 6, 1999 in the District Court for the Northern

District of New York. The Honorable Thomas J. McAvoy, in

a decision dated August 12, 1999, transferred the matter,

pursuant to 28 U.S.C. § 1406(a), to the District Court for the

Southern District of New York because the parents’ claims

arose, and all the parties reside in, the southern district.

See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,

No. 99 Civ. 1258, slip op. at 2 (N.D.N.Y. Aug. 12, 1999).

Following the transfer to the southern district, the case

was assigned to the Honorable Charles S. Haight, Jr. Judge

Haight’s chambers called the District’s counsel to disclose

that Judge Haight was the parent of a disabled student and

had sued his public school district in the past over his child’s

education. To avoid even the appearance of impropriety,

Judge Haight referred the matter to Magistrate Judge Frank

Maas. After a pretrial conference on September 8, 1999,

Magistrate Judge Maas recommended that the parents’

case be dismissed for lack of subject matter jurisdiction.

See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,

No. 99 Civ. 9294, slip op. at 4-5 (S.D.N.Y. Sept. 21, 1999).

After the receipt of the parents’ objections to Magistrate

Judge Maas’ report, the district court raised several questions,

sua sponte, as to the timeliness and integrity of the

administrative remedies in this matter and ordered the District

to explain the relative merits of its administrative appeal

through a series of judicial interrogatories. See Murphy v.

Arlington Cent. Sch. Dist. Bd. of Educ., No. 99 Civ. 9294,

1999 WL 980164, at *4-6 (S.D.N.Y. Oct. 28, 1999). The

Court did not, sua sponte, join the NYSED as a necessary

party, pursuant to Fed. R. Civ. P. 19, but instead, granted the

NYSED leave to submit a brief amicus curiae if so advised.

The District advised the NYSED of the action, but it declined

to appear. Notwithstanding this declination, the District and

the NYSED have never been united in interest for purposes

of these proceedings.

After reviewing the parties’ responses to its

interrogatories, the district court acknowledged that the

District had timely filed its administrative appeal, but

continued to reserve its decision on Magistrate Judge Maas’

Report. See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,

No. 99 Civ. 9294, 1999 WL 1140872, at *3-4 (S.D.N.Y. Dec.

10, 1999). Stating that the SRO’s delay in rendering a decision

“cannot be tolerated,” the district court retained jurisdiction

over the matter and warned that it “will [not] hesitate to

adjudicate plaintiffs’ claims for equitable relief if the SRO

fails to reach a final decision by December 20, 1999.”

See id. at *4.°

Against this backdrop, on December 14, 1999, the SRO

sustained the IHO’s determination to award the parents tuition

3. Since the district court’s decision, the United States District

Court for the Eastern District of New York has ruled in a class action

that the SRO’s consistent failure to render decisions in a timely

manner violates federal law and has ordered a monitor to oversee

the SRO’s handling of challenges to special education programs.

See Schmelzer v. State of New York, 363 F. Supp. 2d 453, 460-61

(E.D.N.Y. 2003).

reimbursement for their unilateral placement of Joseph in

Kildonan for the 1998/99 school year. See Application of the

Bd. of Educ. of the Arlington Cent. Sch. Dist., Appeal

No. 99-65 (SRO Dec. 14, 1999). The SRO, however, reversed

the IHO’s decision to reimburse the parents for private

speech/language therapy secured by them at their own

expense during the 1997/98 school year. See id.

Upon learning through status reports submitted by the

parties that the SRO had filed a decision and order in the

matter, the district court dismissed, as moot, the parents’

complaint. See Murphy v. Arlington Cent. Sch. Dist. Bd. of

Educ., No. 99 Civ. 9294, 2000 WL 10255, at *i-2 (S.D.N_Y.

Jan. 5, 2000). In so doing, the district court expressly declined

the parents’ request that it issue a declaratory ruling

“*regarding whether pendency occurs at the IHO or the SRO

level.”” See id. at *1.

In a Memorandum and Order of January 13, 2000, the

district court reiterated its dismissal of the parents’ action

and its refusal to decide those issues “not presently before

the court.” See Murphy v. Arlington Cent. Sch. Dist. Bd. of

Educ., No. 99 Civ. 9294, 2000 WL 28260, at *1 (S.D.N-Y.

Jan. 13, 2000).

Subsequent to the district court’s orders of January 5®

and January 13°, the pro se parents filed what they termed a

“motion to compel,” seeking not only reimbursement for their

unilateral private placement of their son during the 1998/99

school year, but also payment for theif son’s private

placement during the 1999/00 school year. The district court,

sua sponte, converted the parents’ “motion” into an ex parte

application for an order to show cause. The district court

explained this reversal of position as “according plaintiffs’

papers the lenity traditionally extended to pro se pleadings.”

After reviewing submissions by the parties made in response

to a second set of judicial interrogatories, the district court issued

a Memorandum Opinion and Order on March 1, 2000. In its

opinion, the district court interpreted the relevant statutory and

regulatory framework to find that the student’s “stay-put” or

pendency placement was, for all times relevant to the complaint,

the private school he attended during the 1998/99 school year.

See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F.

Supp. 2d 354, 360 (S.D.N.Y. 2000). The Court of Appeals for

the Second Circuit affirmed the district court’s judgement in

the parents’ favor. See Murphy v. Arlington Cent. Sch. Dist. Bd.

of Educ., 297 F.3d 195 (2d Cir. 2002).

On or about July 30, 2002, the parents supplied the Circuit

Court with a itemized and verified bill of costs pursuant to Rule

39(c) of the Federal Rules of Appellate Procedure (including a

consultation fee claim of $500 for Ms. Arons and $5,000 in

attorneys’ fees), for which they sought reimbursement by the

District. In an Order filed on September 10, 2002, the Circuit

Court disallowed the parents itemized and verified bill of costs.

By letters dated January and February 2003, the parents

requested that the district court order the District to pay fees

and costs incurred during the course of the federal litigation

and state administrative proceedings. Included among the

parents’ expenses were $29,350 in fees pertaining to the services

of Ms. Arons. In March 2003, the District opposed the parents’

application for Ms. Arons’ fees.

By Memorandum Opinion and Order, dated July 22, 2003,

the district court granted the parents’ application in part, and

denied it in part. See Murphy v. Arlington Cent. Sch. Dist. Bd.

of Educ., No. 99 Civ. 9294, 2003 WL 21694398 (S.D.N_Y. July

22, 2003).* The district court found that the IDEA provides that

4. Although the district court concluded that the parents could

proceed pro se in their effort to collect Ms. Arons’ fees and costs,

see Murphy, 2003 WL 367872 at *1 n.3, contrary to the clear

(Cont'd)

a district court, in its discretion, may award a party 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.” See Murphy, 2003 WL

21694398 at *4 (citing 20 U.S.C. § 1415(d)(1) and (e)(4)(B)).

The district court held that unlicensed individuals such as

Ms. Arons cannot collect “attorneys’ fees” for doing work

similar to that of an attorney, but instead, can collect for

related work as “expert consulting services.” See id. at *4.

Rather than conduct an analysis of Ms. Arons’ alleged

expertise, the district court stated that it was “in general

agreement” with the district courts in Borough of Palmyra

Bd. of Educ. v. R.C., No. 97 Civ. 6119, 31 IDELR 4 3 (D.N.J.

July 29, 1999) and Connors v. Mills, 34 F. Supp. 2d 795

(N.D.N.Y. 1998) that Ms. Arons is an expert and that, insofar

as the parents’ claim for Ms. Arons’ fees was allowable, it

was “subject to substantial discount.” See Murphy, 2003 WL

21694398 at *8. The district court found that Ms. Arons’

December 20, 2002 and March 18, 2003 “certifications” of

services allegedly rendered were sufficient records of the time

she spent on the matter, notwithstanding the fact that Ms.

Arons kept no contemporaneous time records.

The district court then determined that Ms. Arons’ fees

for consulting serves were compensable from the time the

parents requested an impartial hearing on September 3, 1998,

(Cont'd)

precedent of the Second Circuit, see Murphy, 297 F.3d at 201; Wenger

v. Canastota Cent. Sch. Dist., 146 F.3d 123, 124-25 (2d Cir. 1998),

one federal court, applying similar precedent, recently held that

parents may not proceed pro se when seeking reimbursement of

consultant’s fees and expenses as an IDEA prevailing party, see Hayes

v. Board of Educ. for the Cape Henlopen Sch. Dist., No. 02 Civ. 55,

2003 WL 105482, at *2 (D. Del. Jan. 3, 2003) (applying Collinsgru

v. Palmyra Bd. of Educ., 161 F.3d 225, 231-32 (3d Cir. 1998)).

until the parents became “prevailing parties” under the IDEA

on March |, 2000, the date of the district court’s ruling in

their favor. See id. at *9.

The district court considered which of Ms. Arons’

services, within the above-described temporal parameters,

were compensable under the IDEA based on the standards

set forth in Palmyra and Connors. See Murphy, 2003 WL

21694398 at *9-*10. The district court conducted no

independent inquiry of a “market rate” for Ms. Arons’

services. Instead, the district court relied solely on the

Palmyra court’s finding that the market rate for Ms. Arons’

services is $200 per hour. See Murphy, 2003 WL 21694398

at *10. The district court determined that the parents’ claims

for mileage costs due to Ms. Arons’ lack of a driver’s license

were not compensable. See id. at *11. Because the parents

had not yet paid Ms. Arons, the district court ruled that an

award of pre-judgement interest was not warranted. See id.

The district court concluded that the parents were entitled to

recover $8,650 for Ms. Arons’ fees from the District. See id.

On August 20, 2003, the District timely filed a notice of

appeal from the district court’s July 22, 2003 Memorandum

Opinion and Order. ;

li. The Decision of the United States Court of Appeals

for the Second Circuit

The Circuit Court affirmed the district court’s judgement

that a prevailing parent may recover expert fees as costs under

the IDEA’s attorneys’ fees shifting provision. See Murphy v.

Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332, 333

(2d Cir. 2005). The Circuit Court concluded that dicta

contained in the Supreme Court’s opinion in West Virginia

Univ. Hosp., Inc. v. Casey, 499 U.S. 83 (1991), congressional

inaction following Casey, and the legislative history of the

IDEA, allowed it to construe the IDEA as providing for the

reimbursement of Ms. Arons’ fees as costs.

The Circuit Court’s analysis correctly began with the

recognition that “‘costs’ is a term of art that generally does

not include expert fees in civil rights fee-shifting statute.”

See Murphy, 402 F.3d at 336. The Circuit Court also stated

that it “appreciate[s] - and in practice honor[s], wherever

_ possible - the virtues of relying solely on statutory text,”

see Murphy, 402 F.3d at 336, as instructed by the Supreme

Court in Casey. In construing the fee-shifting provisions of

several civil rights statutes, the Supreme Court held in Casey

that while a prevailing party could recover “a reasonable

attorney’s fee as part of the costs” in civil rights actions,

see Casey, 499 U.S. at 85 n.1 (quoting 42 U.S.C. § 1988),

a prevailing party could not recover “expert fees” under

42 U.S.C. § 1988, see id. at 87, because there was no “explicit

statutory authority” indicating that Congress intended for that

sort of fee-shifting, see id. at 97.

The Second Circuit also acknowledged that

two sister circuits, focusing exclusively on the text

[of the IDEA’s attorneys’ fees provision], have

recently concluded that . . . 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." _

See Murphy, 402 F.3d at 336 (quoting Neosho R-V Sch. Dist

v. Clark, 315 F.3d 1022, 1031 (8" Cir. 2003)); see also T.D.

v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 482 (7® Cir.

2003).

The Circuit Court, however, felt it could depart from

the wording of the statute because the Supreme Court in

Casey “observed, in dicta, that a Conference Committee

Report on the IDEA stated that ‘[t]he conferees intend that

the term attorneys’ fees as part of the costs include reasonable

expenses and fees of expert witnesses and the reasonable

costs of any test or evaluation which is found to be necessary

for the preparation of the . . . case.’” See Murphy, 402 F.3d

at 336-337 (quoting Casey, 499 U.S. at 91). To the Circuit

Court, it was probative that the Supreme Court in Casey

observed that “the statement [of the conferees] is an apparent

effort to depart from ordinary meaning and to define a term

of art.” See id. The Circuit Court also found “it instructive

that shortly after the [Supreme] Court’s decision in Casey,

Congress amended § 1988 in order to make expert fees

compensable in civil rights actions, but Congress took no

similar action with respect to the IDEA.” See Murphy, 402

F.3d at 337.

Lastly, the Circuit Court concluded that it was not an

abuse of discretion by the district court to award Ms. Arons

a portion of her claimed fees in the absence of

contemporaneous time record because “while attorneys must

document an application for fees with contemporaneous time

records, see New York State Ass’n for Retarded Children,

Inc. v. Casey, 711 F.2d 1136, 1147-1148 (2d Cir. 1983), no

such rule exists for experts or consultants.” See Murphy, 402

F.3d at 339. The Circuit Court did hold prospectively,

however, “that a plaintiff's application for fees for experts

or consultants who perform services in IDEA actions will ©

normally not be approved unless application is accompanied

by time records contemporaneously maintained by the person

performing the services.” See id.

REASONS FOR GRANTING THE PETITION

I. The Court of Appeals erred in holding that the IDEA’s

attorneys’ fees shifting provision authorizes a court

to award expert fees to the parents of a child with a

disability who is a prevailing party under the IDEA.

Expert witness fees are not recoverable under the IDEA,

which provides only for shifting of “reasonable attorneys’

fees as part of the costs” associated with a proceeding under

the Act. See Casey, 499 U.S. at 98-99 (interpreting nearly

identical language in the former version of 42 U.S.C. § 1988

not to include expert fees), superseded by statute, 42 U.S.C.

§ 1988(c) (2003); T.D. v. LaGrange Sch. Dist. No. 102, 349

F.3d 469, 482 (7" Cir. 2003) (finding no authorization in

IDEA for expert witness fees); Neosho R-V Sch. Dist. v. Clark,

315 F.3d 1022, 1032 (8" Cir. 2003) (finding nothing in the

plain language of IDEA authorizes recovery of expert witness

fees); Goldring v. District of Columbia, No. 02 Civ. 1761,

slip op. at 9 (D.D.C. May 26, 2004) (holding that the IDEA

does not permit recovery of expert witness fees beyond the

amounts provided in 28 U.S.C. § 1821(b)), reh’g denied, slip

op. at 8 (D.D.C. July 21, 2004) (same); Mayo v. Booker, 56

F. Supp. 2d 597, 599 (1999) (holding that expert witness

fees not available under IDEA); Eirschele v. Craven County

Bd. of Educ., 7 F. Supp. 2d 655, 659 (D.N.C. 1998)

(determining that Section 1415 “does not provide for an

award of expert witness fees”); Shanahan v. Board of Educ.

of the Jamesville - DeWitt Sch. Dist., 953 F. Supp. 440, 446

n.9 (N.D.N.Y. 1997) (holding that the IDEA provided no

authority to courts to award expert fees as part of attorneys’

fees and costs); Cynthia K. v. Board of Educ. of Lincoln-Way

High Sch. Dist., No. 95 Civ. 7172, 1996 WL 164381 at *2

(N.D. Ill. Apr. 1, 1996) (finding that expert fees “are simply

not recoverable” under the IDEA).

The holding of the Second Circuit in Murphy, that a

prevailing parent may recover expert fees as costs under the

IDEA’s attorneys’ fees shifting provision, see Murphy, 402 F.3d

at 333, is in direct conflict with the holdings of the Eighth and

Seventh Circuits, that expert fees are not recoverable under the

IDEA given the absence of explicit statutory authorization for

the shifting of the cost of expert fees onto the losing party,

see Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1031

(8" Cir. 2003); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d

469, 482 (7 Cir. 2003).

To avoid certain confusion, not only in the Second Circuit,

but throughout the Circuits, the Court must clarify for civil rights

litigants in IDEA actions whether or not the Court intended for

its opinion in Casey to elevate some of the LDEA’s legislative

history over the explicit wording of the statute and permit

recovery of expert fees in IDEA actions. Where, as here, the

IDEA is read to permit recovery of non-testimonial experts

assisting parents in impartial due process hearings without the

guidance of a licensed attorney, the effect is to reward, and

provide future incentive for, the unauthorized practice of law.

A. The IDEA contains no explicit statutory authority

for the recovery of expert fees.

“Fee-shifting provisions mm federal statutes are not

uncommon — ‘numerous federal siatutes allow courts to award

attorney’s fees.’” A.R. v. New York City Dept. of Educ., 407

F.3d 65, 73-74 (2d Cir. 2005) (quoting Buckhannon Bd. & Care

Home, Inc. v. West Virginia Dept. of Health & Human Res. , 532

U.S. 598, 600 (2001)). The IDEA grants courts discretionary

power to “award reasonable attomeys’ 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()(3)(B). “This language assumes, by

its construction, that costs include something more than

attorneys’ fees but the IDEA does not specifically authorize an

award of costs or define what items are recoverable as costs.”

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1031 (8 Cir.

2003) (internal quotation omitted).

““Costs’ is a term of art that generally does not include

expert fees in civil rights fee-shifting statute.” Murphy, 402

F.3d at 336. “Absent a specific definition of costs, [courts]

look to the general provisions providing for the taxation of

costs in federal courts as a matter of course.” Neosho R-V

Sch. Dist. v. Clark, 315 F.3d 1022, 1031 (8® Cir. 2003).

“Title 28 U.S.C. § 1920(3) provides for payment of witness

- fees, and 28 U.S.C. § 1821(b) limits that payment to a $40

per day attendance fee.” See id. “These sections, read

together, permit district courts to tax certain fees as costs

against the non-prevailing party.” See Brillon v, Klein Indep.

Sch. Dist., 274 F. Supp. 2d 864, 871-872 (S.D. Tex. 2003),

aff'd in part & rev'd in part, 100 Fed. Appx. 309 (5® Cir.

2004). “They do not provide for an additional tax for expert

fees.” See id.

The Supreme Court has held that “when a prevailing

party seeks reimbursement for fees paid to its own expert

witnesses, a federal court 1s bound by the limit of § 1821(b),

absent contract or explicit statutory authority to the contrary.”

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,

439 (1987). There is “no authority to support the counter-

intuitive assertion that the term ‘costs’ has a different and

broader meaning in fee-shifting statutes than it has in the

costs statutes that apply to ordinary litigation.” Casey, 499

U.S. at 87 n.3, superseded by statute, 42 U.S.C. § 1988(c)

(2003). There is not doubt that Congress knows how to

specify a shifting of expert witness fees. See id. at 88-89

(noting that “at least 34 statutes in 10 different titles of the

United States Code explicitly shift attorney’s fees and expert

witness fees”), superseded by statute, 42 U.S.C. § 1988(c)

(2003) (providing explicitly for an award of expert witness

fees).

The Circuit Court’s first, and primary, error was its failure

to look to the IDEA’s fee-shifting provision to determine if

it contains “explicit statutory authority” for shifting of expert

witness fees. As cited above, the IDEA’s fee provision states:

In any action or proceeding brought under this

section, the court, in its discretion, may award

reasonable attorney's 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(4)(3)(B) (emphasis added).

Had the Circuit Court first completed the necessary

inquiry as to whether or not the IDEA provides “explicit

statutory authority” for recovery of expert witness fees, it

could not have rationally concluded other than that the IDEA

does not explicitly authorize the recovery of expert witness

fees beyond the amounts provided in 28 U.S.C. § 1821(b).

See T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 481-

482 (7" Cir. 2003); Neosho R-V Sch. Dist. v. Clark, 315 F.3d

1022, 1031-33 (8° Cir. 2003); Goldring v. District of

Columbia, No. 02 Civ. 1761, slip op. at 8 (D.D.C. May 26,

2004). |

B. Casey does not endorse an elevation of legislative

history over the absence of explicit statutory

authority for the recovery of expert fees under

the IDEA.

The Circuit Court erred in construing dicta in Casey,

which commented on some of the legislative history behind

the IDEA’s attorneys fees provision, see Casey, 499 U.S. at

91 0.5, as authority to depart from the text of the statute and

conclude that Congress intended to allow prevailing parties

to recover the costs of experts, see Murphy, 402 F.3d at 337;

see also Brillion v. Klein Indep. Sch. Dist.,274 F. Supp. 864,

872 (S.D. Tex. 2003) (similarly reading Casey as authorizing

courts to depart from the text of IDEA’s attorneys’ fees

provision based on legislative history), aff'd in part & rev'd

in part, 100 Fed. Appx. 309 (S5® Cir. 2004). “Casey in no

way endorsed the proposition that attorneys’ fees include

expert fees under the IDEA or that the legislative history of

the IDEA is even relevant to the consideration of whether

expert fees are recoverable under the IDEA.” Goldring v.

District of Columbia, No. 02 Civ. 1761, slip op. at 5 (D.D.C.

July 21, 2004).

In Casey, the Supreme Court considered whether the

Civil Rights Attorneys’ Fees Awards Act, 42 U.S.C. § 1988,

gave authority to shift expert fees. See Casey, 499 US. at

84. This former version of Section 1988 contained a fee-

shifting provision, almost identical to that in the IDEA (then

named the Handicapped Children’s Protection Act), allowing

“the prevailing party ... a reasonable attorney’s fee as part

of costs.” See 42 U.S.C. § 1988(b), amended by 42 U.S.C.

§ 1988(c) (2003). The Casey Court held that this language

was not an explicit statutory authorization that allowed

shifting of expert witness fees. See Casey, 499 U.S. at 102.

In response to an argument that the legislative history of

the IDEA provided an indication that Congress intended to

include expert fees in “attorneys’ fees as part of costs” under

Section 1988, the Court observed, in a footnote, that a

Conference Committee Report on the IDEA stated that “[t]he

conferees intend that the term ‘attorneys’ fees as part of the

costs’ include reasonable expenses and fees of expert

witnesses and the reasonable costs of any test or evaluation

which is found to be necessary for the preparation of the. . .

case.” See id. at 91 n.5 (quoting H.R. Conf. Rep. No. 99-687

at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 1798, 1808).

The Court, in dicta, characterized this portion of the IDEA’s

legislative history as “an apparent effort to depart from

ordinary meaning and to define a term of art,” noting that

“the specification would have been quite unnecessary if the

ordinary meaning of the term included those elements.”

See id.

According to the Circuit Court, this dicta compelled it

to conclude that the IDEA’s attorneys’ fees provision includes

expert witness fees. See Murphy, 402 F.3d at 337. However,

“this ‘apparent effort’ to define a term of art in legislative

history . . . is not the kind of ‘explicit statutory’ authorization

the Supreme Court said in Crawford was necessary to exceed

the limitations of the general costs statutes.” Neosho R-V

Sch. Dist. v. Clark, 315 F.3d 1022, 1032 (8® Cir. 2003).

In Casey, the Supreme Court merely referenced the legislative

history of the IDEA as an example of the explicit

distinguishing of attorneys’ fees from expert fees by

Congress, not as an endorsement that attorneys’ fees include

expert fees under the IDEA. See Goldring v. District of

Columbia, No. 02 Civ. 1761, slip op. at 5 (D.D.C. July 21,

2004).

While it may be ironic that the legislative history

of the IDEA was used as an example in Casey of

a specification that attorneys’ fees include expert

fees, it is not inconsistent or contradictory . . . to

conclude nevertheless that, according to the logic

of Casey and governing rules of statutory

interpretation, the IDEA’s statutory language is

clear and does not include expert fees within

recoverable attorneys’ fees.

Id. (emphasis in original).

C. The Circuit Court erred in relying on legislative

history to construe the IDEA as providing for the

recovery of expert fees.

Proper respect for the legislative powers vested in

Congress “implies that statutory construction must begin with

the language employed by Congress and the assumption that

the ordinary meaning of that language accurately expresses

the legislative purpose.” United States v. Albertini, 472

U.S. 675, 680 (1985). It is a basic principle of statutory

interpretation that the Court need not consider the legislative

history of a statute unless the plain language of the statute is

ambiguous. See, e.g., Burlington Northern R.R., Co. v.

Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987) (“Unless

exceptional circumstances dictate otherwise, when we find

the terms of a statute unambiguous, judicial inquiry is

complete”). “The mere fact that statutory provisions conflict

with language in the legislative history is not an exceptional

circumstance permitting a court to apply the legislative

history rather than the statute.” United States v. Erikson

P ship, 856 F.2d 1068, 1070 (8" Cir. 1988).

The purpose of a statute includes not only what it sets

out to change, but also what it resolves to leave alone.

See Rodriguez v. United States, 480 U.S. 522, 525-26 (1987).

“The best evidence of that purpose is the statutory text

adopted by both Houses of Congress and submitted to the

President.” Casey, 499 U.S. at 98 “Where that contains a

phrase that is unambiguous — that has a clearly accepted

meaning in both legislative and judicial practice — we do

not permit it to be expanded or contracted by the statements

of individual legislators or committees during the course of

the enactment process.” Id.; see also United States v. Ron

Pair Enter., 489 U.S. 235, 241 (1989) (“[W]here, as here,

the statute’s language is plain, ‘the sole function of the court

is to enforce it according to its terms’ “) (quoting Caminetti

v. United States, 242 U.S. 470, 485 (1917)).

“Congress could have made explicit in the statutory

language of the IDEA that attorneys’ fees include expert fees.”

Goldring v. District of Columbia, No. 02 Civ. 1761, slip op.

at 6 (D.D.C. July 21, 2004). “Yet, the fee shifting statute at

issue here provides no explicit authorization of expert witness

fees.” Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1032

(8 Cir. 2003). Instead, the IDEA states only that courts

“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). That language parallels

the language of Section 1988 (“reasonable attorneys’ fees as

part of the costs”) that the Supreme Court concluded in Casey

did not include expert fees within an award.° See Casey, 499

U.S. at 102. “The statutory language of the IDEA, like Section

1988, is not ambiguous, and therefore legislative history is

not relevant to its interpretation.” Goldring v. District of

Columbia, No. 02 Civ. 1761, slip op. at 6 (D.D.C. July 21,

2004). “Even though a single passage in one piece of the

legislative history may indicate otherwise, without occasion

to consult such legislative history, it does not govern here.” ®

Id. “Consistent with the reasoning in Casey, ... Congress

could have included expert costs in attorneys’ fees by

specifically stating so on the face of the statute.” Jd.

“The fact that Congress did not do so is significant and

determinative.”’ Id.

5. In an apparent effort to backtrack from its holding that the

IDEA’s fee-shifting provision differed from Section 1988’s treatment

of awards of expert witness fees, see Murphy, 402 F.3d at 336-37,

the Circuit Court recently clarified that it will “continue to interpret

the IDEA’s fee-shifting provisions in consonance with Section 1988 ~

and other federal civil fee-shifting statutes, unless there is a specific

reason ... not to do so,” see A.R. v. New York City Dept of Educ.,

407 F.3d 65, 73 n.9 (2005).

6. Indeed, even if the congressional conferees intended that the

IDEA fee provision encompass expert fees as the Circuit Court

suggests, see Murphy, 402 F.3d at 337-38, they neglected to provide

language in the conference bill that would have accomplished

this purpose. Any argument that the Circuit Court should correct

any committee oversight “profoundly mistakes” the judicial “role.”

See Casey, 499 U.S. at 100.

7. Other legislative history of the 1986 amendment to the IDEA

supports the conclusion that Congress purposefully declined to

include expert costs in attorneys’ fees. Both the Senate and House

bills at various times contained language that would have explicitly

provided for expert fees. Thus, the report accompanying S. 415, the

Senate bill to add a fee provision to the IDEA, discloses that the bill

as reported out by the Senate Committee on Labor and Human

Resources contained the following provision: “[T]he court may, in

(Cont'd)

D. Public policy does not require recovery of expert

fees in IDEA proceedings.

The Circuit Court correctly noted that “a prevailing

parent in an IDEA case. . . can collect neither compensatory

damages, monetary relief, nor punitive damages; rather, their

relief rests solely in the appropriate education of their child.”’*

See Murphy, 402 F.3d at 338; see also Thompson v. Board of

Special Sch. Dist. No. 1, 144 F.3d 574, 580 (8® Cir. 1998).

The Circuit Court reasoned that “absent a fee shifting

provision that allows for the recovery of appropriate expert

fees, most parents with children with disabilities would have

difficulty pursuing their case,” see Murphy, 402 F.3d at 338,

(Cont'd)

its discretion, award a reasonable attorney's fees, reasonable witness

fees, and other reasonable expenses of the civil action, in addition to

the costs to” a prevailing parent. See S. Rep. 99-112 at 7 (99* Cong.

1* Sess.) (July 25, 1985). On the floor, however, the Senate approved

a substitute that did not mention witness fees and other expenses,

but only attorneys’ fees and costs. See 131 Cong. Rec. 21388-21389,

21393 (July 30, 1985).

In turn, the House’s original bill, H.R. 1523, authorized the

courts to “award reasonable attorneys’ fees and other expenses as

part of the costs.” The “expenses” language was carried forward in

the bill as reported out by the House Committee on Education and

Labor, and the House Committee Report stated that this language

encompassed expert fees. See H.R. Rep. 99-296 at 1, 6 (99% Cong.

1* Sess.) (Oct. 2, 1985). This language was abandoned, however, in

the bill enacted by both Houses of Congress after debates in which

no one suggested that the language Congress enacted — “attorneys’

fees as part of the costs” — encompassed expert fees. See 132 Cong.

Rec. 16761, 16823-16825 (July 17, 1986); 132 Cong. Rec. H4833-

H4834 (daily ed. July 24, 1986) (now at 132 Cong. Rec. 17599-

17600); 132 Cong. Rec. 17595, 17607-17612 (July 24, 1986).

8. However, “nothing in the IDEA precludes a claim for money

damages under Section 1983 and, in fact, the IDEA expressly

contemplates such claims.” R.B. v. Board of Educ. of New York, 99

F. Supp. 2d 411, 418 (S.D.N.Y. 2000); see also Butler v. South Glens

Falls Cent. Sch. Dist., 106 F. Supp. 24 414, 420 (S.D.N.Y. 2000).

“thereby diminishing their ability to protect their [childrens’]

rights to a free appropriate public education designed to meet

their unique needs,” see Brillion v. Kent Indep. Sch. Dist.,

274 F. Supp. 2d 864, 872 (S.D. Tex. 2003), aff’d in part &

rev'd in part, 100 Fed. Appx. 309 (5* Cir. 2004).°

Left unmentioned by the Circuit Court, however, was

that “in IDEA administrative disputes, Congress had taken

steps . . . that level the playing field.” See Weast v. Schaffer,

377 F.3d 449, 453 (4" Cir. 2004), cert. granted, US._,

125 S. Ct. 1300, 161 L. Ed. 104 (2005). As the Supreme

Court observed, Congress recognized “that in any [IDEA]

disputes the school officials would have a natural advantage,”

so it therefore “incorporated an elaborate set of what it labeled

‘procedural safeguards’ to insure the full participation of the

parents and proper resolution of substantive disagreements.”

See School Comm. of Burlington v. Department of Educ.,

471 U.S. 359, 368 (1985). “These procedural safeguards and

other provisions in the IDEA are all designed to inform

parents and to involve them in the development of the IEP

for their child.” Weast, 377 F.3d at 453, cert. granted, _

U.S. _,125S. Ct. 1300, 161 L. Ed. 104 (2005).

The Act involves parents at all stages, making them

members of their child’s LEP team and enabling them to

advocate for their position if a dispute arises. See 20 U.S.C.

§ 1414(d). Parents have the right to examine all records,

materials, assessments, and other information the school

system uses to develop an IEP, and they have the right to

participate fully in meetings relating to the IEP and the

evaluation of their child. See 20 U.S.C. § 1415(b). Parents

have the right to request an independent evaluation of their

child at school system expense. See id.; see also 34 C.F.R.

9. While the Circuit Court notes, en passant, that “expert

testimony is often critical in IDEA cases, which are fact-sensitive

inquires,” see Murphy, 402 F.3d at 338, it is undisputed that Ms.

Arons provided no expert testimony during the underlying impartial

hearing.

§ 300.502(b)(2)(1i). The school system must give parents written

notice of their rights at key intervals: when their child is initially

referred for evaluation, when they are notified about each IEP

meeting, when their child is reevaluated, and when they register

any complaint about the school system’s effort to provide a free

appropriate public education for their child. See 20 U.S.C.

§ 1415(d)(1). The notice of the parents’ nghts must be written

in “an easily understandable manner.” See 20 U.S.C.

§ 1415(d)(2).

“Tf the parents request an administrative hearing, additional

services and protections become available.” Weast, 377 F.3d at

454, cert. granted, U.S. __, 1258. Ct. 1300, 161 L. Ed. 104

(2005). Voluntary mediation conducted by an impartial mediator,

with the school system bearing the costs, must be made available

before the case proceeds to hearing. See 34 C.F.R. § 300.506.

The school system must also advise the parents “of any free or

low-cost legal and other relevant services available in the area.”

See 34 C.F.R. § 300.507(a)(3). “There are also discovery

requirements that give parents advance notice of the evidence

_they will encounter at a hearing.” Weast, 377 F.3d at 454, cert.

granted, US. _, 125 S.Ct. 1300, 161 L. Ed. 104 (2005).

A party may not introduce evidence that is not disclosed at

least five business days before the hearing. See 34 C.F.R.

§ 300.509(a)(3). Likewise, at least five business days prior to

the hearing, “each party shall disclose to all other parties all

evaluations completed by that date and recommendations based

on the offering party’s.evaluations that the party intends to use

at the hearing.” See 20 U.S.C. § 1415(f)(2)(A). Finally, if the

parents prevail in their challenge, they may be awarded

reasonable legal fees. See 20 U.S.C. § 1415(i)(3)(B).

Thus, “the IDEA and its implementing regulations require

an open process that makes relevant information and special

services, such as the independent evaluation, available to

parents.” Weast, 377 F.3d at 454, cert. granted, US. __,125

S. Ct. 1300, 161 L. Ed. 104 (2005). “By the time the IEP is

finally developed, parents have been provided with substantial

information about their child’s educational situation and

prospects.” /d. “They have continuing access to information

and anticipated evidence once a hearing is requested.” Jd.

“In sum, Congress has taken into account the natural

advantage a school system might have in the IEP process,

including the administrative hearing, by providing ...

explicit protections.” /d. As a result, the school system has

no unfair information or resource advantage that compels

recovery of expert fees for prevailing parents.

i. The Circuit Court erred in permitting, under the

IDEA’s attorneys’ fees shifting provision, 20 U.S.C.

§ 1415(i)(3)(B), the recovery of a non-testimonial

expert assisting parents in an impartial due process

hearing without the guidance of a licensed attorney

Although the IDEA confers on parents of disabled

children the mght to be accompanied by individuals with

special knowledge or training, see 20 U.S.C. § 1415(h)(1),

at impartial due process hearings convened under the Act,

see 20 U.S.C. § 1415(f)(1), parents may not seek attorneys’

fees (or the equivalent of attorneys’ fees) under the IDEA’s

fee-shifting provision, see 20 U.S.C. § 1415(1)(3)(B), for the

services of such individuals.'°

“In the United States, parties are ordinarily required to

bear their own attorneys’ fees .. . absent explicit statutory

10. Section 1415(h)(1) provides:

Any party to a hearing required by subsection (f) or (k)

of this section, or appeal conducted pursuant to

subsection (g) of this section, shall be accorded —

(1) 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.

20 U.S.C. § 1415(b)(1).

authority” to seek such fees from the losing party.

Buckhannon Bd. & Care Home v. West Virginia Dep't of

Health & Human Res., 532 U.S. 598, 602 (2001). Section

1415(1)(3)(B) of the IDEA provides explicit statutory

authority for parents prevailing in any action or proceeding

brought under the Act to recover their attorneys’ fees from a

school district. See 20 U.S.C. § 1415(4)(3)(B)."

The Circuit Court erred in concluding that “it would be

inconsistent with the IDEA’s conferral of the right to be

accompanied by an individual with special knowledge to find

that the IDEA’s fee shifting provision barred compensation

for such an individual’s service.” See Murphy, 402 F.3d at

338. Ms. Arons is not licensed to practice law in this State or

any other. Ms. Arons accompanied and advised the parents

at an impartial due process hearing convened in accordance

with Section 1415(f)(1). Although the Circuit Court assumes

that Ms Arons accompanied the parents to the hearing as an

“individual with special knowledge or training with respect

to the problems of children with disabilities,” see Murphy,

402 F.3d at 338, her “special knowledge or training” was

never formally established at the hearing. Notwithstanding

the absence of a license to practice law, Ms. Arons routinely

performed tasks at the hearing which one can fairly

characterize as the practice of law. According to Ms. Arons’

own certifications, she accepted the parents’ case, she set a

fee, she gave legal advice, she planned legal strategy, she

prepared examination questions of witnesses, she took

testimony from witnesses, she made and responded to

motions and objections and she prepared post-hearing

11. Previously, the Circuit Court has defined what constitutes

a “prevailing party,” see J.C. v. Regional Sch. Dist. 10, 278 F.3d

119, 124 (2d Cir. 2002), and an “action or proceeding,” see Vultaggio

v. Board of Educ., 343 F.3d 598, 603 (2d Cir. 2003), under the IDEA’s

fee-shifting provision, see 20 U.S.C. § 1415(i)(3)(B). Here, there is

no dispute that the parents are prevailing parties in an action or

proceeding arising under the IDEA.

briefs. '? The effect of the Circuit Court’s decision is to reward,

and provide future incentives for, the unauthorized practice

of law..

A. The IDEA does not provide for the compensation

of individuals with special knowledge or training

for accompanying and advising parents at

impartial hearings.

Educational consultants, non-lawyer representative and

lay advocates may not charge fees for services that constitute

the practice of law. Arons v. New Jersey State Bd. of Educ.,

842 F.2d 58, 62-63 (3d Cir.), cert. denied, 488 U.S. 942

(1988).'> Likewise, the IDEA does not provide for advocates,

such as Ms. Arons, to recover fees for their involvement in

special education impartial hearings as reasonable attorneys’

fees. See Connors v. Mills, 34 F. Supp. 2d 795, 808 (N.D.N.Y.

1998) (“in the absence of affirmative state action in

promulgating regulations that govern the training and conduct

12. It is still an open question whether or not advocates may

function at impartial due process hearings in this manner without

running afoul of state rules prohibiting the unauthorized practice of

law (“UPL”). See In re Arons, 756 A.2d 867 (Del. 2000) (finding

that such representation violates Delaware’s UPL rules), cert. denied,

$32 U.S. 1065 (2001). Every state in the Union, including New York,

has a law prohibiting the UPL. See N.Y. Jud. Law §§ 478, 484

(McKinney Supp. 2005); N.Y. Comp. Codes R. & Regs. tit. 22,

§ 1200.16 (2004) (codifying Model Code of Prof’! Responsibility

DR 3-101). In New York, only the Attorney General is authorized to

pursue an action for UPL. See N.Y. Jud. Law § 476-a (McKinney

1983); Lawrence v. Houston, 172 A.D.2d 923, 567 N.Y.S.2d 962,

964 (3d Dep’t 1991).

13. The “Arons” in Arons v. New Jersey Bd. of Educ., 842 F.2d

58 (3d Cir.), cert. denied, 488 U.S. 942 (1988), Connors v. Mills, 34

F. Supp. 2d 795 (N.D.N.Y. 1998) and Borough of Palmyra Bd. of

Educ., No. 97 Civ. 6419, 31 IDELR 4 3 (D.N.J. July 29, 1999) is the

same Arons for which the parents in this action seek recovery of

expert fees. See Murphy, 2003 WL 21694398 at *4, aff'd, 402 F.3d

332 (2d Cir. 2005).

of lay advocates, plaintiff's request for Mrs. Arons’ fees...

must be denied.”); Straube v. Florida Union Free Sch. Dist.,

801 F. Supp. 1164, 1182 n.17 (S.D.N.Y. 1992). “Nothing in

the language of the [IDEA] imposes any requirement on the

state or creates any rights, either in parents of handicapped

children or lay advocates, tor monetary compensation of lay

advocate services.” Arons-v-New Jersey State Bd. of Educ.,

No. 85 Civ. 209, 1987 WL 10808, at *4 (D.N.J. May 12,

1987), aff'd, 842 F.2d 58 (3d Cir.), cert. denied, 488 U.S.

942 (1988).

Likewise, even if one assumes, arguendo, that litigation

consultant fees are recoverable under IDEA, see B.D.

v. DuBuono, 177 F. Supp. 2d 201, 204 (S.D.N.Y. 2001),

Ms. Arons cannot recover her fees as a litigation consultant.

“Litigation consultants ... are trained in various aspects of

courtroom practice and procedure. They are consulted by

litigators to hone their trial skills in the context of a particular

case.” See B.D. v. DuBuono, 177 F. Supp. 2d at 204.

Ms. Arons has no specialized training in courtroom practice

and procedure. See In re Arons, 756 A.2d 867, 869

(Del. 2000), cert. denied, 532 U.S. 1065 (2001).

Even if one assumes, again arguendo, that educational

consultant fees are authorized by the IDEA, prevailing parties

may only seek reimbursement of these costs when these

services assist the work of a licensed attorney.'* See P.G. v.

Brick Township Bd. of Educ., 124 F. Supp. 2d 251, 267

(D.N.J. 2000); B.K. v. Toms River Bd. of Educ., 998 F. Supp.

462, 473 n.14 (D.N.J. 1998); S.D. v. Manville Bd. of Educ.,

989 F. Supp. 649, 654 n.1 (D.N.J. 1998).

14. This interpretation of Section 1415(i)(3)(B) is consistent with

the district court’s admiralty law analogy where radar experts assisted

counsel in trying ceases involving collisions of ships at sea, see Murphy,

2003 WL 21694398 at *10, aff'd, 402 F.3d 332 (2d Cir. 2005).

CONCLUSION

The petition for a Writ of Certiorari is meritorious, and

should be granted.

Respectfully submitted,

RAYMOND G. Kuntz*

JEFFREY J. SCHIRO

Kuntz, SPAGNUOLO, SCAPOLI

& Scuiro, P.C.

Attorneys for Petitioner

Post Office Box 396

Route 22, Hunting Ridge Mall

444 Old Post Road

Bedford Village, NY 10506

(914) 234-6363

* Counsel of Record

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DECIDED MARCH 23, 2005,

AMENDED APRIL 15, 2005

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

(Argued: December 16, 2004

Decided: March 29, 2005

Amended: April 15, 2005)

Docket. No. 03-7850-cv

PEARL MurPHy, THEODORE Murpny,

Plaintiffs-Appellees,

—vV.—

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION,

Defendant-Appellant.

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

Appeal from a Memorandum Opinion and Order of the

United States District Court for the Southern District of New

York (Haight, Jr., J.). Affirmed

Appendix A

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.' 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

1. We note that Section 1415 has been much amended in recent

years. See Individuals with Disabilities Education Improvement Act

of 2004, Pub.L. No. 108-446, Sec. 101, § 615, 118 Stat. 2647;

Education Flexibility Partnership Act of 1999, Pub.L. No. 106-25,

§ 6(a), 113 Stat. 41, 49; IDEA Amendments of 1997, Pub.L. No.

105-17, Sec. 101, § 615, 111 Stat. 37, 88-99. The subsection with

which we are here concerned has not, however, been altered since

the 1997 Amendments. Additionally, we note that although certain

portions of the 1997 Amendments did not take effect until 1998, the

1997 revision to Section 1415 took effect immediately upon

passage. IDEA Amendments of 1997, Pub.L. No. 105-17, § 201(a),

111 Stat. 37, 156.

Appendix A

behalf of their son Joseph Murphy pursuant to the Individuals

with Disabilities Education Act (the “IDEA”), 20 U.S.C.

§ 1400 et seq.? 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).?

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

2. Although the Murphys are proceeding pro se on appeal,

Public Citizen, Inc. filed an amicus curiae brief in support of the

Murphys.

3. The facts and procedural history pertaining to the merits of

the underlying IDEA claims are fully stated in 5.e above-referenced

cases.

Appendix A

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 Memorandum and Opinion 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, __ FSupp.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.” Jd. at Murphy, 2003 WL

21694398 at *4 (citing 20 U.S.C. § 1415(d)(1) and

(e)(4)(B)).* 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)).

4. The district court inadvertently referred to the wrong version

of Section 1415, citing not to Section 1415 as revised by the IDEA

Amendments of 1997, but to an earlier version. This error is

immaterial to the issues here raised and resolved on appeal.

\ Appendix A

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 4 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. /d.

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. /d. 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. /d. at *9 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 *9 -*10. Following the Palmyra court,

Judge Haight found that the market rate for Arons’s services

was $200 per hour. /d. at *10. The court determined that the

Appendix A

Murphys’ claims for mileage costs due to Arons’s lack of a

driver’s license were not compensable. /d. at *11. Because

the Murphys had not yet paid Arons, the court ruled that an

award of pre-judgment interest was not warranted. See Id.

The court concluded that the Murphys were entitled to

recover $8,650 for Arons’s fees from Arlington. /d.

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 GM. 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

Appendix A

services of an educational consultant under the IDEA’s fee-

shifting provision.* Under the IDEA, “[i]Jn 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

5. Arlington urges that this Court “leave the answer” to the

question of whether expert fees are compensable under the IDEA

“for another day because Ms. Arons did not provide any expert

testimony under the guidance of a licensed attorney at any stage of

the proceedings.” Appellant’s Reply Br. at 3-4. Arlington’s argument

is misplaced. The district court did not award Arons fees as a testifying

witness; rather, it adopted the position of the Third Circuit and held

that Arons may, as an expert, collect under the statute for a limited

range of activities, including consulting services. See Murphy, 2003

WL 21694398 at *4. (citing Arons, 842 F.2d 58 (3d Cir.1988)).

Appendix A

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 (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)

in an antitrust case, held that “when a prevailing party seeks

reimbursement for fees paid to its own expert witness, a

federal court is bound by the limit of [28 U.S.C.] § 1821(b),

absent contract or explicit statutory authority to the contrary.”

482 U.S. 437, 439 (1987). Under § 1821(b), witnesses fees

are limited to $40 per day for each day’s attendance. Four

years later, in Casey, the Supreme Court employed the same

analysis in construing the fee-shifting provisions of civil

rights statutes. Specifically, the Court held that while a

prevailing party could recover “a reasonable attorney’s fee

Appendix A

as part of the costs” in civil rights actions, 499 U.S. at 85

n. | (quoting 42 U.S.C. § 1988), a prevailing party could not

recover “expert fees” under 42 U.S.C. § 1988, 499 U.S. at

87 (quoting Crawford Fitting ), because there was no

“explicit statutory authority” indicating that Congress

intended for that sort of fee-shifting. Casey, 499 U.S. 83

(1991).

Notably, in reaching this result, the Court expressly

compared—and contrasted— § 1988 to the IDEA, the statute

we construe in the instant case. The Court observed, in dicta,

that a Conference Committee Report on the IDEA stated that

“(t]he conferees intend that the term ‘attorneys’ fees as part

of the costs’ include reasonable expenses and fees of expert

witnesses and the reasonable costs of any test or evaluation

which is found to be necessary for the preparation of the...

case.” Id. at 91 n. 5 (quoting H.R. Conf. Rep. No. 99-687,

p. 5 (1986), [hereinafter, the “Conference Committee

Report”} ) (omission in original). Justice Scalia, author of

the majority opinion in Casey, acknowledged that “[tJhe

statement is an apparent effort to depart from ordinary

meaning and to define a term of art.” /d. (emphasis in the

original).

We believe that this dicta, as well as the legislative

history it relies upon, require us to construe the IDEA as

providing for the reimbursement of costs such as those

incurred here by Arons in conducting the expert evaluation.

For as the Supreme Court, itself, strongly intimated, the IDEA

is different from ordinary fee-shifting statutes, because the

legislative history of the IDEA unambiguously demonstrates

10a

Appendix A

that Congress expressly intended to allow, rather than prevent,

prevailing parties to recover the costs of experts.

In Casey, the Supreme Court signaled to Congress that

if it wished for expert witness fees to be awarded as costs

under § 1988, it would have to amend the then existing

§ 1988, but that no such action was necessary with regard to

IDEA expert witness fees because the Conference Committee

report indicated that such expert witness fees were authorized

as part of costs under the law. We therefore find it instructive

that shortly after the Court’s decision in Casey, Congress

amended § 1988 in order to make expert fees compensable

in civil rights actions, but Congress took no similar action

with respect to the IDEA. Civil Rights Act of 1991, Pub.L.

No. 102-166, § 113, 105 Stat. 1071. We believe it reasonable

to infer that Congress, on the basis of the Supreme Court’s

decision in Casey, saw no need to amend the IDEA because

the Court had recognized that, in enacting the IDEA,

Congress had sufficiently indicated in the Conference

Committee Report that prevailing parties could recover

expert fees under the Act.®

To those who would question our resort to legislative

history, we observe that it was Justice Scalia, a noted skeptic

of the use of legislative history, who authored Casey’s dicta

6. And we again note that it is not as if Congress has failed to

amend the IDEA, having done so a number of times since Casey,

most recently, in December 2004. See Individuals with Disabilities

Education Improvement Act of 2004, Pub.L. No. 108-446, Sec. 101,

§ 615, 118 Stat. 2647; Education Flexibility Partnership Act of 1999,

Pub.L. No. 106-25, § 6(a), 113 Stat. 41, 49; IDEA Amendments of

1997, Pub.L. No. 105-17, Sec. 101, § 615, 111 Stat. 37, 88-99.

lla

Appendix A

about the apparent effort by Congress to depart from the

ordinary meaning of the term “costs” in the IDEA.

See generally, Antonin Scalia, A Matter of Interpretation:

Federal Courts and the Law (1997). We also recognize that,

while some legislative history is less reliable than others, a

conference committee report is generally among the most

authoritative. See Disabled in Action of Metro. N.Y. v.

Hammons, 202 F.3d 110, 124 (2d Cir.2000) (“Because a

conference report represents the final statement of terms

agreed to by both houses, next to the statute itself it is the

most persuasive evidence of congressional intent.”) (quoting

Ry. Labor Executives’ Ass'n v. Interstate Commerce Comm'n,

735 F.2d 691, 701 (2d Cir.1984)); see also William N.

Eskridge, Jr., et al., Legislation and Statutory Interpretation,

307 (2000); Robert A. Katzmann, Courts and Congress 63-

64 (1997) (quoting Judge James L. Buckley as remarking

that, as a senator, “my understanding of most of the legislation

I voted on was based entirely on my reading of its language

and, where necessary, on explanations contained in the

accompanying report”). We do not ignore the Conference

Committee Report here, given the Supreme Court’s

acceptance of it, the general reliability of the Conference

Committee Report itself, and the settled legislative

expectations that have obviously resulted in the wake of the

Casey decision.

Our holding is also consistent with the purposes of the

IDEA, which are to “ensure that all children with disabilities

have available to them a free appropriate public education

that emphasizes special education and related services

designed to meet their unique needs and prepare them for

employment and independent living” and “to ensure that the

12a

Appendix A

rights of children with disabilities and parents of such

children are protected.” 20 U.S.C. § 1400(d)(1)(A), (B).

Expert testimony is often critical in IDEA cases, which are

fact-intensive inquiries about the child’s disability and the

effectiveness of the measures that school boards have offered

to secure a free appropriate public education. The IDEA’s

procedural safeguards ensure that children and parents can

realize whatever benefits are due. Thus, for example, parties

to IDEA proceedings have “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,” 20 U.S.C. § 1415(h)(1), and “[iJn 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(1)(3)(B). An expert such

as Arons falls within the category of “individuals with special

knowledge.” It would be inconsistent with the IDEA’s

conferral of the right to be accompanied by an “individual[ ]

with special knowledge” to find that the IDEA’s fee shifting

provision barred compensation for such an individual’s

service. Moreover, a prevailing plaintiff in an IDEA case, in

contrast to other civil rights statutes, can collect neither

compensatory damages, monetary relief, nor punitive

damages; rather, their relief rests solely in the appropriate

education of their child. Absenta fee shifting provision that

allows for the recovery of appropriate expert fees, most

parents with children with disabilities would have difficulty

pursuing their case. Prohibiting expert witness fees for

prevailing parents would thus frustrate the purposes of the

IDEA, resulting in fewer children receiving the education

they deserve.

13a

Appendix A

In reaching the conclusion that the IDEA’s fee-shifting

provision allowed for the award of experts’ fees, we join the

Third Circuit, the first court of appeals to address the issue.

Arons, 842 F.2d 58. In that case, the same Arons who assisted

the Murphys in the present case—a self-described lay

advocate authorized to represent parents in IDEA due process

hearings under New Jersey law—sought to recover attorneys’

fees for her successful representation of parents in an IDEA

proceeding. /d. at 61. Arons claimed that although a state

rule prohibited non-lawyer advocates from collecting legal

fees, the Education for All Handicapped Children Act

(reenacted in 1990 as the IDEA) preempted the state rule

and therefore allowed her to collect legal fees. Jd. The Third

Circuit disagreed. Jd. at 63. However, although the Third

Circuit held that Arons could not recover legal fees, it held

that she could recover expert fees. Relying on the IDEA

Conference Committee Report, the Third Circuit wrote that:

nothing [in the IDEA] prevents [Arons] from

receiving compensation for work done as an

expert consultant or witness. Although we

appreciate the difficulty of trying to allocate

between compensable time spent in consultation

and noncompensable time spent in legal

representation, the task is not insurmountable.

The receipt of consultation fees should eliminate

the financial losses Arons claims to have sustained

in the course of providing assistance to parents of

handicapped children.

Id. at 62. The court went on to state that New Jersey’s

prohibition on non-lawyer advocates collecting legal fees

14a

Appendix A

“will not frustrate the [[IDEA’s] purpose of providing parents

with expert assistance in navigating the administrative

process,” because such parents could seek reimbursement

for expert fees as part of the “costs” incurred in IDEA actions.

Id. at 63. The district courts in this Circuit have similarly

held that expert fees are compensable under the IDEA,

see, e.g., BD v. DeBuono, 177 F.Supp.2d 201, 207-08

(S.D.N.Y.2001) (finding, based on the IDEA’s legislative

history, that expert fees are reimbursable), and no court in

this Circuit has since found otherwise, see J. v. Bd. of Educ.,

98 F.Supp.2d 226, 242-43 (D.Conn.2000) (noting that district

courts in other Circuits have found that expert fees are non-

compensable under the IDEA, and finding those decisions

unpersuasive based on the IDEA’s legislative history).

This approach has also been followed by district courts in

the First, Fifth, and Sixth Circuits, although our sister Circuit

Courts have rarely addressed the issue. See, e.g., Pazik v.

Gateway Reg’! Sch. Dist., 130 F.Supp.2d 217, 220-22

(D.Mass.2001); Brillon ex rel. Brillon v. Klein Indep. Sch.

Dist., 274 F.Supp.2d 864, 870-72 (S.D.Tex.2003), rev’d on

other grounds, 100 Fed.Appx. 309 (Sth Cir.2004); and Gross

ex rel. Gross v. Perrysburg Exempted Vill. Sch. Dist., 306

F.Supp.2d 726, 737-39 (N.D.Ohio 2004); but see McC. v.

Corrigan-Camden Indep. Sch. Dist., 909 F.Supp. 1023, 1033

(E.D.Tex.1995). We agree and hold that expert fees are

_ compensable as costs under the IDEA.

C. Whether the District Court’s Fee Award was an Abuse

of Discretion

Having determined that expert fees are compensable

under the IDEA, we must determine whether the district court

15a

Appendix A

abused its discretion in determining the amount of the fee

award—$8,650 (less than one-thira of the amount sought).

The only argument offered by appellants is that the district

court abused its discretion by awarding Arons fees based on

bills that were not contemporaneous time records. While

attorneys must document an application for fees with

contemporaneous time records, see New York State Ass'n for

Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48

(2d Cir. 1983), no such rule exists for experts or consultants.

We see no reason why such experts or consultants, rendering

professional services, should not be required to provide

similar documentation in support of their claims for fees.

Accordingly, by analogy to New York State Ass'n for Retarded

Children, Inc., 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. Because it would be unfair to retroactively apply

such a rule to the expert in the case at hand, we find that the

district court did not abuse its discretion in not requiring

Arons to submit contemporaneous records with the

application for fees. Moreover, we find, after an independent

review of the record, including Arons’s bills and relevant

case law, that there are no other errors in the district court’s

careful Memorandum Opinion and Order.

l6a

Appendix A

CONCLUSION

For the foregoing reasons, the Memorandum Opinion

and Order of the district court is AFFIRMED.

17a

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

DATED JULY 22, 2003

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Case No. 99 Civ. 9294 (CSH)

PEARL MURPHY AND THEODORE MURPHY,

Plaintiffs,

-against-

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION,

Defendant.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior United States District Judge:

The sole remaining issue in this action commenced under

the Individuals with Disabilities Education Act (“IDEA”

or “the Act”), 20 U.S.C. §§ 1400 ef seg., concerns the

entitlement of the plaintiffs, parents of a disabled child who

successfully sued the defendant school district to recover their

child’s tuition at a private school curing certain school years,

to recover costs incurred for the services of an educational -

consultant and transportation incurred by plaintiffs during

the pertinent times. Plaintiffs rely upon the fee-shifting

18a

Appendix B

provisions which the Act contains for the benefit of prevailing

parties in actions commenced pursuant to its terms.

I. PROCEDURAL HISTORY

Familiarity with all prior opinions of this Court and the

Court of Appeals is assumed. For present purposes, it is

sufficient to state that plaintiffs Pearl Murphy and Theodore

Murphy, the parents of Joseph Murphy, a “child with a

disability” as that term is defined by the Act, 20 U.S.C.

§ 1401(3)(A), and enrolled at the Arlington High School,

maintained by defendant Arlington Central School District

Board of Education (the “District”), decided at the end of

the 1997-1998 school year that the Arlington School was no

longer an appropriate educational placement for Joseph, |

given his condition. Plaintiffs unilaterally withdrew Joseph

from the Arlington School, and enrolled him for the 1998-

1999 school year at the Kildonan School, a private school.

At the same time, plaintiffs pursued the administrative

remedies provided, as required by IDEA, with respect to such

educational placements by the applicable state statute,

N.Y.Educ.Law 4404 (McKinney 1999). Those proceedings

eventually resulted in a decision dated July 7, 1999 by an

impartial hearing officer (“IHO”), who concluded that the

District’s educational plan for Joseph for the 1998-1999

school year was inadequate to meet his special needs; that

Kildonan was an appropriate placement; and that plaintiffs

were entitled to reimbursement for Joseph’s tuition at

Kildonan and the costs of a private speech pathologist.'

1. The District’s papers opposing plaintiffs’ claims for costs

state that the name of the IHO who reached these conclusions was

(Cont’d)

19a

Appendix B

The District lodged an administrative appeal from that

decision with the state review officer (“SRO”). While that

appeal was pending before the SRO, plaintiffs commenced

this action, first in the Northern District of New York, and

subsequently transferred to this Court.

In an opinion dated March 1, 2000, Murphy v. Arlington

Central School District Board of Education, 86 F. Supp.2d

354 (S.D.N.Y. 2000), this Court held that under the provisions

of the IDEA, the District was obligated to reimburse plaintiffs

for Joseph’s tuition covering the period beginning on

September 17, 1999 to date, and to continue to fund his tuition

as long as Kildonan remained Joseph’s current educational

placement.” The District appealed. The Second Circuit

affirmed this Court’s decision. 297 F.3d 195 (2d Cir. 2002).

(Cont'd)

Leonard W. Krouner, who subsequent to his rulings in the

administrative proceeding involving plaintiffs pleaded guilty in a state

court to “multiple charges of fraud for collecting disability insurance

while also serving as an impartial hearing officer,” and would

“surrender his law licence.” Affidavit of Barbara J. Donegan,

Assistant Superintendent for Pupil Personnel Services of the District,

verified March 6, 2003 (“Donegan Aff.”) at 9 13; Defendant’s Brief

at 4 n.1. The news reports attached to the affidavit make it plain that

the misconduct leading to Mr. Krouner’s conviction had nothing to

do with the case involving the Murphy family or the conclusions he

reached in that case. It is difficult to discern a legitimate objective of

advocacy which counsel for the District think they are pursuing in

calling these wholly extraneous facts to the Court’s attention in the

context of the plaintiffs’ present application for costs.

2. The District had previously reimbursed plaintiffs for Joseph’s

tuition at Kildonan for the 1998-1999 school year, following a

decision in plaintiffs’ favor by the state review officer. See 86

F. Supp.2d at 356.

20a

Appendix B

Plaintiffs now apply for an order directing the District

to pay costs they incurred during the times in question.

Specifically, plaintiffs seek to recover the fees of Marilyn

Arons, an educational consultant, and mileage expenses

plaintiffs incurred in transporting Joseph to and from Arons’s

office, the offices of neurologists and speech therapists, and

administrative hearings. In a Memorandum and Order

reported at 2003 WL 367872 (S.D.N.Y. Feb. 19, 2003),

I directed the submission of further papers in connection with

that application. Those submissions have been made, and

the issue is now ripe for decision.

Il. FACTUAL BACKGROUND

The public policy implemented by the IDEA is to assure

that all children with disabilities receive a free public

education appropriately designed to meet their particular

learning needs. The District seeks to achieve that purpose

through the vehicle of a Committee on Special Education

(“CSE”), headed by Assistant Superintendent Barbara J.

Donegan. “The primary mission of the CSE is to identify,

locate, and evaluate all disabled children within the District’s

borders and develop individualized education programs

(“LEP’s”) that address their educational needs.” Donegan Aff.

at § 2. A written IEP is mandated by the Act, and is prepared

at a meeting between the child’s teacher, a school

-representative qualified in special education, and the child’s

parents.

An IEP is not binding on the parents. The IDEA gives

them the right to “present complaints with respect to any

matter relating to the identification, evaluation, or educational

2la

Appendix B

placement of the child,” 20 U.S.C. § 1415(b){1)(E), with the

concomitant right to “an impartial due process hearing”

before the state educational agency, § 1415(b)(2).? The Act

gives states the freedom to design a one or a two-tier review

process. As the prior decisions in the case at bar reflect, New

York opted for a two-tier system. Parents dissatisfied by the

final administrative decision may file suit “in any State court

of competent jurisdiction or in a district court of the United

States without regard to the amount in controversy.”

§ 1415(e)(2).

According to the first certification of Marilyn Arons

submitted on the present application, Arons “was asked by

- Pearl Murphy to help her son receive an appropriate education

in October of 1997. . . . She originally asked that I serve as

an educational consultant in order to have an IEP developed

in accordance with his needs.” Arons’s certification of

services rendered in this case indicates that she holds a

master’s degree. A 1998 Third Circuit decision states that

Arons, the mother of two handicapped children and a New

Jersey resident, “[a]s a professional educator . . . specializes

in curriculum development for exceptional children,” and

“[a]s a lay advocate, she acts on behalf of parents of

handicapped children at administrative hearings” conducted

by New Jersey educational authorities. Arons v. New Jersey

State Board of Education, 842 F.2d 58, 60 (3d Cir. 1988).

Arons has subsequently extended her consulting and

3. The Act’s section numbers appearing in text are taken from

the statute as it existed in 1997, when the events pertinent to this

case began. The Act was subsequently amended in 1999 and its

provisions were restructured and renumbered. For example, the right

to an impartial due process hearing is now found in § 1415(f).

22a

Appendix B

advocacy practices to New York families, as is demonstrated

by J.S. v. Ramapo Central School District, 165 F. Supp.2d

570 (S.D.N.Y. 2001), Connors v. Mills, 34 F. Supp.2d 795

(N.D.N.Y. 1998), and the case at bar. She has also represented

a family in Delaware. See Coale v. State Department of

Education, 162 F. Supp.2d 316 (D. Del. 2001).

As noted, during the academic year 1997/1998 Joseph

Murphy attended a District school. According to Arons’s

summary, she rendered her first services to plaintiffs on

certain dates in November and December, 1997, when she

reviewed Joseph’s school history and records, developed a

statement of current educational status and goals for an

“IEP meeting,” and prepared for, attended and participated

in a CSE meeting. Arons’s summary then states that on

January 8, 1998 she was consulting with plaintiffs “re:

placement of Joe at Kildonan,” and the record in the case

shows that plaintiffs unilaterally enrolled their son in the

Kildonan School “prior to a scheduled meeting of the

CSE held on July 30, 1998.” Donegan Aff. at ¢ 9.

Plaintiffs paid Joseph’s tuition at the Kildonan School

for the academic year 1998/1999. By letter dated September

3, 1998, plaintiffs requested an impartial hearing to determine

whether the District should be required under the Act to

reimburse them for the 1998/1999 Kildonan tuition and for

the costs of private speech therapy. Donegan Aff. at ¢ 10.

After conducting a hearing, the IHO concluded held that the

District had not afforded Joseph a free and appropriate public

education, held that plaintiffs had appropriately placed Joseph

in the Kildonan School, ordered the District to reimburse

plaintiffs for the Kildonan 1998/1999 tuition, and further

23a

Appendix B

ordered the District to reimburse plaintiffs for the cost of private

speech therapy incurred during the 1997/1998 academic year.

_ The District appealed to the SRO by petition dated August 17,

1999, who in a ruling dated December 14, 1999 but effective as

of September 17, 1999 sustained the IHO’s decision to award

plaintiffs reimbursement for the Kildonan tuition for the 1998/

1999 academic year, but reversed the award of reimbursement

for private speech therapy during the prior year. Donegan Aff.

at F412, 14, 25-26.

During the pendency of the District’s appeal to the SRO

with respect to Joseph’s placement during the 1998/1999

academic year, the 1999/2000 year approached, and on

September 2, 1999 the District convened a CSE to consider

placement for that year. See Murphy, 86 F. Supp.2d at 356. “An

IEP was proposed placing Joseph back at Arlington High School.

Plaintiffs did not accept this IEP and continued to enroll Joseph

at Kildonan,” funding the tuition for that academic year as well.

Id. As noted in Part I, supra, plaintiffs commenced this action

in August 1999. The ultimate decision reached by this Court,

dated February 25, 2000 and subsequently affirmed by the

Second Circuit, was that Kildonan School constituted Joseph’s

“current educational placement,” a conclusion which under the

Act’s statutory scheme made the District “financially responsible

for Joseph’s tuition beginning from the effective date of the

SRO decision, September 17, 1999, and going forward.” Jd. at

368. The economic effect of that ruling was to require the District

to reimburse plaintiffs for the major portion of the 1999/2000

tuition at Kildonan School.‘ This Court has not been asked to

4. As a result of the SRO’s decision in plaintiffs’ favor, on January

24, 2000 the District reimbursed plaintiffs for the 1998/1999 Kildonan

tuition, in the amount of $20,750.00. See 86 F. Supp.2d at 356.

24a

Appendix B

make any further rulings with respect to the plaintiffs’ nights

and the District’s obligations under the IDEA.

Arons’s certification summarizes services she rendered

to plaintiffs and their son Joseph from November 1, 1997 to

and including July 19, 2002. Those services are allocated

among five academic years: 1997/1998 (21.5 hours); 1998/

1999 (40.25 hours); 1999/2000 (17.75 hours); 2000/2001

(45.75 hours); and 2001/2002 (21.5 hours). These allocations

yield a total of 146.75 hours. Arons values her time at $200

an hour, and so the claim for her services is $29,350.°

Plaintiffs do not by this application seek reimbursement for

payment of this or any other amount to Arons. They are not

in a position to do so because they have not paid Arons

anything. In her certification Arons explains why that is so.

She states that “[{t]he attached bill for Joseph Murphy was

made in accordance with my understanding of those areas

for which the Second Circuit permits me to bill for services,”

and goes on to say that in view of plaintiff Pearl Murphy’s

“financial circumstances and the issues in her son’s case as

she understood them,” and “[b]ecause of the unusual nature

of the case, as well as the fragile state of her son’s

development, I agreed to take the case on a contingency.”

Arons continues: .

A verbal contract was agreed upon in which the

family agreed to seek my fees from the Arlington

5. Arons’s summary incorrectly concludes with a “Total

Consultation Hours” calculation of 125.5 hours. The amount claimed,

$29,350, reflects the accurate total of 146.75 hours, charged at the

hourly rate of $200.

25a

Appendix B

School District or a court of competent

jurisdiction in the event there was litigation and

the family became the prevailing party. I have

never received payment for any services provided

since 1997. I have stayed with the case because

of my concern for the social, emotional, academic

and developmental welfare of Joseph, a child I

deemed to be at significant risk without

app** priate intervention.

The principal questions on this application are whether,

in the circumstances of the case, the District is obligated by

the IDEA to pay for Arons’s services to the plaintiffs, and if

so, in what amount.

il. DISCUSSION

A. Fee Shifting and Representation under the IDEA

At the pertinent times the IDEA provided in 20 U.S.C.

§ 1415(e)(4)(B):

In any action or proceeding brought under this

subsection, the court, in its discretion, may award

reasonable attorneys’ fees as part of the costs to

the parents or guardian of a child or youth with a

disability who is the prevailing party.

With respect to represetation of parties at an impartial due

process hearing, the Act provided in § 1415(d)(1) that any

party shall be accorded

26a

Appendix B

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.

B. Court Decisions Involving Marilyn Arons

Arons does not hold a law degree. Accordingly, when she

began representing parents of learning disabled children in

IDEA-mandated impartial hearings before state educational

agencies, she described herself as a “lay advocate.” In Arons v.

New Jersey State Board of Education, 842 F.2d 58 (3d Cir. 1988),

Arons challenged a provision in the New Jersey Administrative

Code that nonlawyers may not receive a fee for representing a

party in administrative proceedings. She argued that she had

“done work equal to that of an attorney within the State of New

Jersey yet is denied equal pay for that equal work because she

is not a member of the New Jersey Bar Association or a graduate

of a law school.” 842 F.2d at 60. The district court denied relief

and the Third Circuit affirmed, reasoning that the provision in

§ 1415(d)(1) of the IDEA that a party “may be accompanied

and advised by counsel and by individuals with special

knowledge or training “ (emphasis added) did not preempt the

state administrative rule that only counsel could charge fees for

their services. /d. at 62. The court of appeals reasoned that “[t]he

carefully drawn statutory language [of IDEA] does not authorize

these specially qualified individuals to render legal services,”

also observing that neither the Act nor its legislative history

contained provisions “granting fees for representation by lay

advocates.” Jd. However, the Third Circuit went on to say:

That is not to say that plaintiff here may not

perform traditional representation functions during

27a

Appendix B

administrative hearings. New Jersey Office of

Administrative Law regulations authorize her to do

so. As presently drawn, however, those regulations

do not allow her to collect a fee for such services.

We emphasize, as did the district court, that nothing

prevents her from receiving compensation for work

done as an expert consultant or witness. Although

we appreciate the difficulty of trying to allocate

between compensable time spent in consultation and

noncompensable time spent in legal representation,

the task is not insurmountable. The receipt of

consultation fees should eliminate the financial

losses Arons claims to have sustained in the course

of providing assistance to parents of handicapped

children.

The New Jersey no-fee rule will not frustrate the

Act’s purpose of providing parents with expert

assistance in navigating the administrative process.

As we have noted, nothing hinders plaintiff from

charging for her expert services in giving testimony,

preparing technica! ieports, consulting with parents,

attending hearings, or advising parents about

education decisions.

Id. at 62-63.°

6. Subsequently the Supreme Court of Delaware adopted the

Third Circuit’s reasoning in New Jersey Board of Education in a

different context, affirming a decision of an administrative board

(Cont'd)

28a

Appendix B

Presumably guided by the Third Circuit’s decision in New

Jersey Board of Education, Arons no longer describes her

' participation in IDEA hearings as that of “lay advocate.” Her

statement of services in the case at bar is captioned “Joseph

Murphy Consultation Bill.” While the District seems to

disparage this change in Arons’s self-designation, Donegan

Aff. at § 46, I do not attach any weight to it in evaluating the

present application.

In two more recent reported cases under the IDEA,

district courts asked to direct school districts to pay for

Arons’s services to prevailing parents have attempted, in the

Third Circuit’s phrases, the “not insurmountable” task of

allocating “between compensable time spent in consultation

and noncompensable time spent in legal representation.”

842 F.2d at 62. Those cases are Connors v. Mills, 34

F. Supp.2d 795 (N.D.N.Y. 1998), and Borough of Palmyra

Board of Education v. R.C., No. 97-6119, 31 IDELR 4 3

(D.N.J. July 29, 1999).

(Cont'd)

that Arons and a colleague, Ruth Watson, had engaged in the

unauthorized practice of law due to their representation of families

of children with disabilities in due process hearings held by Delaware

education authorities pursuant to the IDEA. Jn re Matter of Marilyn

Arons, Ruth Watson, and Parent Information Center of New Jersey,

Inc., 756 A.2d 867 (S. Ct. Del. 2000). The Delaware court concluded

that § 1415(h)(1) of the Act “cannot be interpreted as granting a

clear right to lay representation,” a conclusion which “renders moot

Appellants’ claim that the IDEA preempts any state-law proscription

against the unauthorized practice of law that might otherwise apply

to the activities of such individuals with special knowledge or training

in this context.” Jd. at 874.

29a

Appendix B

In Connors, the plaintiff parent objected to the school

district’s IEP for her learning disabled child, enrolled the child

in a private school, and hired Arons to “help her prepare” for

due process hearings and to “represent her” in negotiating a

number of settlement agreements “relative to the due process

hearings.” 34 F. Supp.2d at 799. A settlement having been

arranged with respect to the district’s reimbursement of plaintiff

for the private school tuition, “[t]he only matter left to be

examined is whether Plaintiff may recoup the cost of hiring

Mrs. Arons as her representative at the various due process

hearings.” /d. at 806. The district judge analyzed the IDEA as

construed by the Third Circuit in New Jersey Board of

Education, and concluded that “[i]n the absence of affirmative

state action in promulgating regulations that govern the training

and conduct of lay advocates, Plaintiff's request for Mrs. Arons’s

fees pursuant to § 1415(e)(4)(B) must be denied.” Jd. at 808.

However, citing the Third Circuit’s observations in New

Jersey Board of Education quoted supra, the court in Connors

continued:

That is not to say that Mrs. Arons cannot collect her

fees as an educational consultant or as a witness.

Thus, Mrs. Arons may recoup all fees incurred in

procuring technical reports, attending the hearings,

or in advising Mrs. Connors regarding educational

problems, the evaluation thereof, and the proper

educational placement for D.C.

Plaintiff included in her papers a summary of Arons’s services

similar in form to that prepared by Arons in the case at bar.

Referring to that summary, the court in Connors said:

30a

Appendix B

The total for the above services is $3,000. While

this list shows activities. Mrs. Arons did in a

general sense, it does not break down her services

sufficiently to differentiate between those

pertaining to legal representation and those

pertaining to consultation, advice, or any other

compensable activity. As a result, a calculation of

fees cannot be done at this time. If Plaintiff wishes,

she may submit an itemized fee schedule piovided

the schedule was produced contemporaneously

with Mrs. Arons’s services.

Id. (citation omitted). No subsequent decisions in the case

are reported.

In Palmyra the plaintiffs, parents of a learning disabled

child, began administrative proceedings against the local

school board, alleging that the board had failed to provide

the child with a free appropriate education as required by

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. They

included a request that the board reimburse them for tuition

incurred at a private school to which plaintiffs had unilaterally

placed their son. Throughout the administrative process, the

plaintiffs “were represented by Marilyn Arons, their non-

attorney representative, who also acted as a consultant to

them.” 31 IDELR 4 3 at 8. The administrative proceeding

ended in plaintiffs’ favor, the administrative law judge

holding that the board had failed to provide the child with

an appropriate education and was responsible for past and

continuing enrollment and transportation expenses at the

private school. The board appealed that decision to the district

court, which granted plaintiffs injunctive relief, and then

3la

Appendix B

endorsed a settlement of the board’s continuing obligations.

The parties reserved on the issues of attorney’s fees and

expenses. The district court’s opinion resolved those issues.

The opinion refers to the plaintiff parents as “the Cs” and

their child as “F.C.””’

The Palmyra plaintiffs’ entitlement to mecover Arons’s

charges from the school board turned uponsthe fee-shifting

provisions of § 504a(b) of the Rehabilitatiom Act, 29 U.S.C.

§ 794a(b), which provide that

[i]n any action or proceeding to enforce or charge

a violation of a provision of this subchapter, the

court, in its discretion, may allow the prevailing

party . . .a reasonable attorney’s fee as part of the

costs.

Although the case at bar is governed by the IDEA, not the

Rehabilitation Act, the Pa/myra court’s resolution of the issue

is instructive because, as that court noted, “Section 504’s

fee provision is virtually identical to that in the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C.

§ 1415()(3)(B).” 31 IDELR 4 3 at 11. Accordingly the district

judge in Palmyra derived guidance from cases which “have

consistently interpreted the phrase ‘reasonable attorney’s fees

as part of the costs’ in the IDEA to include reimbursement

for fees for expert witnesses and other consultants retained

in connection with the case.” /d. Conversely, in the case at

bar involving the District’s liability under the IDEA to pay

7. The caption of the opinion as reported refers to the child as

both “R.C.” and “F.C.”, but “F.C.” is the reference used throughout

the text.

32a

Appendix B

for Arons’s services, I may derive guidance from Palmyra, a

case adjudicating a school board’s liability under the

Rehabilitation Act to pay for the same sort of services

furnished by Arons.

The district court in Palmyra quoted the Third Circuit’s

holding in New Jersey State Board of Education that Arons

(and by logical extension parents hiring Arons) could not

recover fees for Arons’s “traditional representation functions

during administrative hearings,” but that “nothing hinders

[Arons] from charging for her expert services in giving

testimony, preparing technical reports, consulting with

parents, attending hearings, or advising parents about

educational decisions.” Palmyra, 31 IDELR 4 3 at 11 (quoting

New Jersey State Board of Education, 842 F.2d at 63).

Applying those principles to the facts of the case, the

district court in Palmyra concluded that of the 172.5 itemized

hours Arons devoted to the family’s situation between 1995

and 1998, “approximately half of these hours were justified

and reasonable hours spent by this consultant on the type of

work for which the Third Circuit indicated she should be

compensated.” 31 IDELR 4 3 at 12. Those compensable hours

were devoted to “preparing for and attending Section 504

meetings, conducting research (including conversation with

the Cs) to form an educational plan for F.C., talking with

other experts about proper education for F.C., and obtaining

placement for F.C. at the Hill Top Preparatory School.” /d.®

8. The Hill Top Preparatory School was the private school in

which the plaintiff parents unilaterally enrolled their son after

deciding that the defendant school board’s IEP for him was

unsatisfactory.

33a

Appendix B

But the court continued: “Certain of the 172.5 hours listed,

however, are not expenses reasonably incurred by an

educational consultant for which Palmyra [the school board]

should be held liable.” Those noncompensable services

included:

(a) Time Arons spent “providing therapy to the Cs.” Her

certification recited that “the 21 hours she spent in the car

with the Cs traveling back and forth to Mercerville for the

OAL hearing in 1996 were spent providing ‘parent

consultation, support, explanation and services’ to deal with

the Cs’ ‘distress and upset’ and ‘anxiety and pain.’”

Specifically, Arons stated in her certification that she

provided consultation regarding “the two other children in

the family and strategies as to how to complete the process

needed in order to provide [F.C.] with the essential services

that he required and was denied. These strategies were not

legal in nature, but addressed the psychodynamics between

parents and children at times of stress, anger and frustration.”

The district court concluded that “[w]ithout more specific

details as to how much of these 21 hours were spent

discussing F.C., the other children, and family stress,” the

court could allow only 25% of that time, or 5.25 hours, as

properly chargeable to the school board. /d.

(b) The court disallowed entirely “[o]ther examples of

time spent providing therapy or counseling,” specifically, in

telephone or in-person conferences which Arons’s

certification indicated “were devoted to discussing parent

coping mechanisms, the Cs’ other children, and other

therapeutic topics.” Jd.

34a

Appendix B

for the four hours Arons spent attending a workshop about

students with language disorders, reasoning that the

workshop “constituted professional development for Ms.

Arons, and professional development, like overhead, is not

recoverable from Palmyra as part of attorneys’ fees and

costs.” Id.

(d) The court held that the Cs could not recover from

the school board for Arons’s 38.5 hours in travel time to

meetings with the Cs” over several years. /d.

(e) The court, while acknowledging that “the Cs can

recover for Ms. Arons’s time testifying at a hearing or

preparing technical reports,” her time spent rendering legal

services, “such as preparing direct and cross examinations

for the OAL hearing” and “discussing the availability of legal

representation by others with the Cs,” were not compensable

by the schooi board, and deducted a number of hours from

the claim. /d.

The district court in Palmyra concluded this section of

its opinion with these sensible observations:

This is not to say that Ms. Arons cannot recover

fees at all for time she spent traveling, counseling,

or helping the Cs obtain legal representation. She

is entitled to receive these costs from the Cs

themselves. This Court has simply determined that

it is not appropriate, under the attorneys’ fees and

costs provision of the Rehabilitation Act, to

require Palmyra to pay those costs because they

35a

Appendix B

are not reasonable expert consultation services

justified by the Cs’ ultimate success before the

ALJ. In total, the Cs are entitled to be reimbursed

for the portion of Ms. Arons’ bill representing a

total of 82 hours of work.”

Id. Thus the court concluded that 47.5% of the charges for

Arons’s services were compensable by the school board under

the fee-shifting provisions of the Rehabilitation Act.

The Palmyra court also held that Arons’s claimed hourly

rate of $200 (the same rate claimed in the case at bar) “is a

reasonable fee for work by someone of Ms. Arons’ caliber

and experience, consistent with her customary hourly fee for

such services.” 31 IDELR 4 3 at 13.

C. The Liability of the Arlington School District for the

Cost of the Services Rendered by Marilyn Arons to

the Murphy Family

I am in general agreement with the analyses of the district

courts in Connors and Palmyra. It follows, for the reasons

stated infra, that if the present plaintiffs’ claim against the

District based on Arons’s services is allowable at all, that

_Claim is subject to a substantial discount.

However, the District raises a threshold objection to the

claim in its entirety. The District argues that the claim for

Arons’s services should be denied because “[n]either the

parents nor Ms. Arons have provided the Court with

contemporaneous records to support this part of their

application.” Brief at 11-12. If Arons was an attorney and

36a

Appendix B

plaintiffs were attempting to recover for her fees, the

District’s ebjection would be well taken. New York

Association for Retarded Children v. Carey, 711 F.2d 1136,

1148 (2d Cir. 1983), established the rule that “[h]ereafter,

any attorney—whether a private practitioner or an employee

of a nonprofit law office—who applies for court-ordered

compensation in this Circuit for work done after the date of

this opinion must document the application with

contemporaneous time records.” Arons’s “certifications” of

services are not “contemporaneous time records”; plaintiffs

do not contend otherwise. But the Second Circuit has never

extended the Carey rule to the compensation of experts or

consultants, and I regard Arons’s certifications and

descriptions of her services as sufficient to allow the claim

to be at least considered (although subject to the uncertainties

discussed infra).°

9. The District also notes en passant that “[tJhere is conflicting

authority about whether or not expert fees are recoverable under IDEA

at all,” Brief at 10, citing cases from a number of jurisdictions. But

district courts in this circuit uniformly hold that such fees are

recoverable under the fee-shifting provisions of the Act. As discussed

in text, Connors held that in a parent’s pro se action brought under

the IDEA, the fees of Arons herself were recoverable from the school

district to the extent that her services pertained “to consultation,

advice, or other compensable activity.” 34 F. Supp.2d at 808. Judge

McMahon’s thoughtful opinion in BD v. DeBuono, 177 F. Supp.2d

201 (S.D.N.Y. 2001), holds that “Congress intended for expert fees

to be reimbursable as attorneys’ fees in cases brought to enforce the

rights guaranteed by IDEA,” id. at 208. Judge Chin reached the same

conclusion in another IDEA case, RE. v. New York City Board of

Education, District 2, No. 02 Civ. 1067, 2003 U.S. Dist. LEXIS 58

(S.D.N.Y. Jan. 6, 2003), at *8-9 (“Although expert fees are usually

not reimbursable as part of taxable costs awarded to a prevailing

party, they are reimbursable under fee-shifting statutes.”).

37a

Appendix B

The substantive argument that the District makes is that

not all Arons’s claimed hours are compensable under the IDEA’s

fee-shifting provision. That argument requires careful analysis

because, as the cases cited supra demonstrate, a prevailing parent

in a suit brought under the Act is not automatically entitled to

the full amount of an educational consultant’s charges. To be

compensable under the Act, the charges must have been incurred

“In. . .an action or proceeding brought” under the Act. 20 U.S.C.

§ 1415(e)(4)(B). While “prevailing plaintiffs may obtain costs

and attorney’s fees for pre-hearing settlements pursuant to

§ 1415(e)(4), . . . . [t]he ‘trigger point’ for attorney’s fees under

the IDEA 1s generally a request for an impartial hearing,”

Shanahan v. Board of Education of the Jamesville- Dewitt School

District, 953 F. Supp. 440, 444 (N.D.N.Y. 1997). The same

“trigger point” logically applies to consultants’ fees claimed as

part of the costs of an action brought under the Act. It is readily

apparent, and the cited cases demonstrate, that an educational

consultant such as Arons may render services to a family such

as the Murphys which, while valuable and helpful, do not fall

within the ambit of compensable costs under the IDEA.

In the case at bar, by a letter dated September 3, 1998,

plaintiffs requested an impartial hearing “to determine

whether or not the District should be required to reimburse

them for the costs associated with the unilateral placement

of their son in a private school along with costs associated

with private speech therapy.” Donegan Aff. at § 10. That date

establishes the starting line of the administrative/litigation

process in which plaintiffs prevailed, thereby becoming

entitled to the statutory award of fees. I will not charge the

Distnct for any services by Arons to the plaintiffs prior to

that date.

38a

A ppendix B

The date establishing the finish line of the process is

March 1, 2000, which is the date of this Court’s ruling in

plaintiffs’ favor on the merits of their contentions. That ruling

turned the plaintiffs into “prevailing parties” under the IDEA

fee-shifting provision. The litigation had been resolved in

their favor. It necessarily follows that services rendered by

Arons to plaintiffs subsequent to that date cannot be

characterized as “part of the costs” of the “action or

proceeding,” those being the defining phrases of the IDEA

fee-shifting provision.'°

Within those temporal parameters, the first services

rendered by Arons that might be compensable occurred on

September 23, 1998, and the last on September 4, 1999. I

use the phrase “might be compensable” because, in the words

of the district court in Connors, it is necessary “to

differentiate between those [services] pertaining to legal

representation and those pertaining to consultation, advice

or other compensable activity,” the former being

noncompensable under the Act and the latter compensable.

During this period of time Arons rendered 43 1/4 hours of

services to the plaintiffs and to their son. As in Connors, the

descriptions of services Arons includes in her certification

10. To be sure, plaintiffs would have been divested of their

prevailing party statis if the Second Circuit had reversed this Court’s

ruling in their favor. But the Second Circuit affirmed that ruling in

an opinion dated July 16, 2002. I do not use that later date as the

demarcation line for Arons’s services compensable under the IDEA

fee-shifting provision because the plaintiffs were represented by

counsel on the appeal and there is no indication in Arons’s

certifications of services that she rendered consultation, advice or

other compensable activity in connection with the appeal.

39a

Appendix B

are not sufficiently detailed to allow a differentiation to be

performed with certainty. But the descriptions during this

period of time show clearly enough that Arons was furnishing

consulting services to plaintiffs in preparation for the

impartial hearing before the IRO. Those services are

compensable. I reject the District’s contentions that some of

them are not. The District questions 4 hours Arons spent on

November 8, 1998 reviewing a scholarly article on learning

disabilities. As noted, the district court in Palmyra disallowed

4 hours Arons spent attending a workshop, reasoning that

this constituted “professional development” for Arons, not

compensable under a fee-shifting statute. But Arons explains

in her supplemental certification at | 9 that the article in

question was given to her by plaintiff Pearl Murphy, who

“asked me to read it and explain it to her. I did.” The

circumstances are quite different from those in Palmyra, and

these services are compensable as pertaining to consultation

or advice.

The District also objects to plaintiffs’ “request for

reimbursement for Ms. Arons’s development of questions

for witnesses at the impartial hearings.” Donegan Aff. at

4 42. At first blush these activities as described by Arons

would appear to reflect noncompensable legal representation;

see, e.g., the description of 5 hours devoted on November

11, 1998 to “Development of questions for Jennifer Jenson;

Review of Ansley report and recommendations; Development

of Ansley questions.” However, Arons explains in her

supplemental certification at 4 3:

Relative to the questions asked at hearings, it is

my experience that special educators write those

40a

—_

Appendix B

questions for the attornies [sic] involved because

attornies do not understand the implications of

diagnostic reports or the contents of IEPs. During

the Murphy hearings, I observed Mr. Schiro

[counsel for the District] to ask the members of

the Arlington CSE about the meanings of test

results, and the staff’s development of questions

for him to ask about these and related matters.

This explanation is entirely plausible, and places such

services in the compensable categories of consultation and

advice, rather than the noncompensable category of legal

representation. I will draw an analogy from my own practice

at the bar. I tried cases involving collisions of ships at sea. If

radar was involved (as it almost always was), each party in

the litigation retained a radar expert to consult and advise

with respect to the radar-related questions the attorneys

should ask on direct and cross-examination. Given the

technical complexities of the developing radar technology,

it would have been folly for admiralty lawyers to do anything

else: but I never thought of my radar expert as the client’s

legal representative; I was the legal representative; the radar

expert was my consultant and much-appreciated adviser. "'

I am unable to discern any portion of the 43 1/4 hours

under consideration that clearly fall within the

noncompensable category. Accordingly I allow them all, at

Arons’s claimed hourly rate of $200. While the District

11. In reaching this particular conclusion, I disagree with the

district court in Palmyra, which as noted supra disallowed Arons's

time spent in “preparing direct and cross examination for the OAL

hearing.”

4ia

Appendix B

proclaims that “how Ms. Arons established this market value

is a mystery,” Donegan Aff. at 4 53, the mystery would have

been solved if Donegan had read the Palmyra decision, where

the district court approved that rate for Arons for reasons

that i find persuasive and adopt.

It follows that with respect to the services of Marilyn

Arons, plaintiffs are entitled to recover from the District the

amount of $8,650 (43 1/4 hours x $200 per hour).

Plaintiffs and Arons may well be disappointed by that

amount; Arons devoted 146.75 hours to the welfare of

plaintiffs’ son, and the claim against the District was for

$29,350. In that regard, two additional points may usefully

be made.

Explaining the amount of time she spent on the Murphy

family’s situation, Arons says in her supplemextal

certification at J 8 that “[t]he Murphy case had three hearings,

one after the other. Often there were layers of litigation

occurring at the same time, impartial hearing, Supreme Court,

Appellate Court, and Federal Court .” The record in the case

in this Federal Court does not fully reveal the nature or extent

of litigation in other courts; but obviously this Court’s power

to award costs to plaintiffs is limited to costs incurred in this

case: “layers of litigation” in other courts and costs incurred

in connection with them (including fees for Arons’s services)

have no relevance to the present application.

Second, nothing I have said in this opinion or the result

I have reached should be regarded as a denigration of Marilyn

Arons’s abilities or the devoted services she rendered to the

42a

Appendix B

Murphy family. I have no doubt that those services were worth

over $29,000. But my responsibility is to interpret and apply a

fee-shifting statute, awarding plaintiffs what the law allows

while protecting the finite resources of the Arlington Central

School District budget from expenditures the law does not

require. Arons’s agreement with the Murphys to accept as

compensation only what the Court allowed may be viewed as

compassionate, but it forms no basis for the Court to depart

from what the law does in fact allow.

D. The Liability of the Arlington School District for the

Cost of Mileage Incurred by Plaintiff Pearl Murphy

Plaintiff Pearl Murphy claims a total of $7,847.14 in mileage

costs. This total is based upon a mileage rate of 36.5 cents per

mile, with Mrs. Murphy using the family car. Of that amount,

$6,161.22 represents mileage incurred in driving Arons to and

from the latter’s home in New Jersey; Arons is not a licensed

driver. The balance represents travel to and from the offices of

several physicians and speech therapists who were treating

Joseph Murphy.

I am not able to allow any of these claims under the Act’s

fee-shifting provision. Plaintiffs had every right to retain an out-

of-state consultant who did not drive, but a mileage cost for use

of the plaintiffs’ car does not fit within even an expanded concept

of “attorneys’ fees as part of the costs.”'? Nor may the District

be required under the Act to reimburse plaintiffs for mileage

incurred in taking Joseph to private physicians and therapists.

12. Arguably mileage might be allowable if Arons drove her

car to plaintiffs’ residence for the purpose of rendering services

compensable under the Act and charged plaintiffs for that mileage as

part of her invoice. But that is not this case.

43a

Appendix B

IV. CONCLUSION

For the reasons stated, plaintiffs Pearl Murphy and

Theodore Murphy are entitled to recover from defendant

Arlington Central School Board of Education the sum of

$8,650. The balance of plaintiffs’ application for fees and

costs in this action is denied.

If the District does not pay this amount promptly,

plaintiffs may ask this Court in writing (with a copy to

counsel for the District) to enter judgment on this amount,

so that post-judgment interest will begin to accrue. There is

no occasion to consider pre-judgment interest, because

plaintiffs are not out of pocket with respect to the allowed

amount.

It is SO ORDERED.

Dated: New York, New York

July 22, 2003

s/ Charles S. Haight, Jr.

Charles S. Haight, Jr.

SENIOR UNITED STATES DISTRICT JUDGE

Supreme Count US

FILED ae

AUG 10 2008

‘e OFFICE OF THE CLERK

No. 05-18

In The

Supreme Court of the United States

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION,

Petitioner,

PEARL AND THEODORE MURPHY,

Respondents.

On Petition for a Writ of €ertiorari to the

United States Court of Appeals for the Second Circuit

BRIEF IN OPPOSITION

BRIAN WOLFMAN

SCOTT L. NELSON

PUBLIC CITIZEN

LITIGATION GROUP

1600 20" Street, NW

Washington, DC 20009

(202) 588-1000

September 1, 2005

DAVID C. VLADECK

Counsel of Record

INSTITUTE FOR PUBLIC

REPRESENTATION

Georgetown University Law Center

600 New Jersey Avenue, NW

Washington, DC 20001

(202) 662-9535

Counsel for Respondents

BRIEF IN OPPOSITION

Respondents Pearl and Theodore Murphy oppose the

petition for a writ of certiorari, which presents two questions,

neither of which warrants review. As to the first question,

respondents agree that there is an emerging circuit split on

whether expert fees are available under the Individuals with

Disabilities Education Act’s provision authorizing an award

of “costs.” But this split is not sufficiently mature to warrant

this Court’s attention at this time. Petitioner also seeks re-

view of the Second Circuit’s affirmance of the partial expert

fee awarded by the district court in this case. Petitioner

claims that the lower courts have approved an “expert” fee for

what it contends are “legal” services. But the Second Circuit

did not hold that plaintiffs can obtain “legal” fees for the ser-

vices of non-lawyer experts. Indeed, it held just the opposite.

Petitioners’ claim is only that the Second Circuit erred in

drawing the line between legal and expert services. This

claim, which is highly fact-bound, does not merit review.

The petition should be denied.

: 1. Petitioner asks this Court to review the Second

Circuit's decision that a prevailing party may recover expert

fees under the fee-shifting provision of the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. §

14150)(3)(B). That provision states that “{i]n any action or

proceeding brought under this section, the court, in its discre-

tion, may award reasonable attorney’s fees as part of the costs

to the parents of a child with a disability who is a prevailing

party.” Jd. After a thorough analysis of the text of IDEA’s

fee-shifting provision, this Court’s precedent, IDEA’s legisla-

tive history, and the statute’s remedial purpose, the Second

Circuit concluded that “Congress intended to and did author-

ize the reimbursement of expert fees in IDEA actions.” Mur-

phy v. Arlington Central Sch. Dist. Bd. of Educ., 402 F.3d

332, 336 (2d Cir. 2005).

In reaching its conclusion, the Second Circuit first ex-

amined this Court’s rulings in Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437 (1987), and West Virginia Univ.

Hospital v. Casey, 499 U.S. 83 (1991). Taken together, the

decisions establish that, although the term “costs” is not self-

defining, unless Congress specifies otherwise, a statutory au-

thorization for costs does not authorize the payment of expert

witness fees. Murphy, 402 F.3d at 336. The Second Circuit

noted that, in contrast to the statutes construed in those cases,

Congress, in IDEA’s legislative history, left no doubt that it

intended expert fees to be included within the term “costs”

under IDEA. Jd. The court also pointed out that Causey

looked to IDEA’s legislative history to differentiate IDEA

from 42 U.S.C. § 1988, where there was no indication that

Congress intended the word “costs” to include expert witness

fees. Cusev, 499 U.S. at 92 n.5. The Second Circuit also ob-

served that “[e]xpert testimony is often critical in IDEA cases,

which are fact-intensive inquiries about the child's disability

and the effectiveness of the measures that school boards have

offered to secure a free appropriate public education.” Afur-

phy, 402 F.3d at 338. The availability of expert fees would

thus be in keeping with IDEA’s remedial purpose. /d.

In ruling that IDEA authorizes the award of expert

fees as part of costs, the Second Circuit joined the Third Cir-

cuit and the majority of district courts that have considered

the issue. See drons v. New Jersey State Bd. of Educ., 842

F.2d 58 (3d Cir. 1988); see, e.g., Pazik v. Gateway Regional

Sch. Dist., 130 F. Supp. 2d 217, 220 (D. Mass. 2001); Brillon

v. Klein Ind. Sch. Dist., 274 F. Supp. 2d 864, 870-72 (S.D.

Tex. 2003), rev'd in part on other grounds, 100 Fed. Appx.

309 (5" Cir. 2004); Verginia McC. v. Corrigan-Camden In-

dep. Sch. Dist., 909 F. Supp. 1023, 1033 (E.D. Tex 1995); and

Gross v. Perrysburg Exempted Village Sch. Dist., 306 F.

Supp. 2d 726, 738-39 (N.D. Ohio 2004).

To be sure, three other circuits — the Seventh, Eighth,

and, now, D.C. Circuits — have reached the contrary conclu-

sion. Neosho R-V. Sch. Dist. v. Clark ex rel. Clark, 315 F.3d

1022, 1031 (8" Cir. 2003); T.D. v. LaGrange Sch. Dist. No.

102, 349 F.3d 469, 482 (7" Cir. 2003); Goldring v. District of

Columbia, 416 F.3d 70 (D.C. Cir. 2005). But only the D.C.

Circuit’s opinion sets forth any detailed analysis to support its

conclusion, and that decision was reached over a vigorous

dissent by Judge Rogers, who argued that the court should

follow the Second Circuit’s approach in Murphy.' Thus, al-

though a split has emerged among the circuits, fewer than half

of the circuits have yet considered the question, and only two

circuits have written opinions that address the question in any

depth. There is no need for the Court to resolve this question

at this time. The Court should deny the petition on the first

question presented.

2. Petitioner also seeks review of the Second Circuit’s

affirmance of the partial expert fee awarded by the district

court in this case. Petitioner claims that the lower courts have

approved an “expert” fee for what it contends are “legal” ser-

vices. This claim, which is highly fact-bound, does not merit

review.

In IDEA due process proceedings, parents and stu-

dents with disabilities have “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 dis-

abilities.” 20 U.S.C. § 1415(h)(1). Plaintiffs’ expert, Ms.

Marilyn Arons, is an educational consultant who advises

families like the Murphys on their children’s disabilities and

the educational strategies that might help their children make

progress in school. Ms. Arons also assists families in navigat-

ing IDEA’s complex procedures. The district court ruled that

the Murphys were entitled to recover only $8,650 of the

$29,350 in expert fees requested for Ms. Arons’ services, and

the Second Circuit affirmed that ruling. In so doing, the Sec-

' A petition for rehearing en banc in Goldring was filed with

the D.C. Circuit on August 25, 2005, and thus there is a possibility

that the D.C. Circuit will reconsider the panel’s split ruling in that

case.

ond Circuit adopted the Third Circuit's approach in Arons vy.

New Jersey State Bd. of Educ., 842 F.2d 58, 62 (1988) (in-

volving the same expert) namely, that experts who assist

families may not be awarded costs for “legal” work, but may

recover costs for expert consultations. Murphy, 402 F.3d at

338-39. Petitioner asks this Court to review the district

court's finding, affirmed by the Second Circuit, that Ms.

Arons should be awarded expert fees for the non-legal, expert

consulting services she performed on the Murphys’ behalf.

No other court has addressed this issue, and the line drawn by

the Second and Third Circuits is eminently reasonable. This

question does not warrant review by this Court.

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,

BRIAN WOLFMAN DAVID C. VLADECK

SCOTT L. NELSON Counsel of Record

PUBLIC CITIZEN "INSTITUTE FOR PUBLIC

LITIGATION GROUP REPRESENTATION

1600 20" Street, NW Georgetown University Law Center

Washington, DC 20009 600 New Jersey Avenue, NW

(202) 588-1000 Washington, DC 20001

(202) 662-9535

Counsel for Respondents

September 1, 2005

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.