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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 291

## Text

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Cited Authorities
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Cited Authorities

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Secondary Authority:

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132 Cong. Rec. 16761 (July 17, 1986) ...........
132 Cong. Rec. 17595 (Juiy 24, 1986) ...........
132 Cong. Rec. 17599 (July 24, 1986) ...........
64 Fed. Reg. 12,602 (Mar. 12, 1999) ............

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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.

2

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

3

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).

4
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)).

5

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.

6

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).

7

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).

8

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.”

9

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)

10

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)).

11

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.

12

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

13

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.

14

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

15

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).

16

““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

17

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

18
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.

19

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

20

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

21

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)

22

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).

23

“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.

24

§ 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

25

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).

26

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.

27

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).

28

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).

29

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

la

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

2a

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.

3a

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.

4a
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.

Sa
\ 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

6a
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

7a

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)).

8a

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

9a

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

(c) The court refused to direct the school board to pay
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.

\

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1627%3A1. Public record. Not legal advice.