Opposition Brief — Arlington Central School Dist. Bd. of Ed. v. Murphy

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No,,05-18 . !

IN THE

Supreme Court of the United States

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION,

Petitioner,

v,

PEARL MURPHY and THEODORE MURPHY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

REPLY BRIEF

RAYMOND G. KuntTz*

JEFFREY J. SCHIRO

KUNTZ, SPAGNUOLO, SCAPOLI

& Scuro, P.C.

Attorneys for Petitioner

Post Office Box 396

Route 22, Hunting Ridge Mall

444 Old Post Road

Bedford Village, NY 10506

* Counsel of Record (914) 234-6363

196681 ce rave ERENT L

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

TABLE OF CONTENTS

EME 36 s4¢a seed bow see stedeeaseen

I.

The Second Circuit erred in holding that the

IDEA’s attorneys’ fees shifting provision,

20 U.S.C. § 1415(i)(3){B), authorizes a court

to award expert fees to the parents of a child

with a disability who is a prevailing party

ET GNP SAMO 6a on ccnecdsennn ve dena’

A.

The Court should exercise it judicial

discretion and grant certiorari in this

matter given the pronounced conflict

between the circuit courts of appeal on

the recovery of expert fees under the

| OC PEPEE ELECT ree ee

The IDEA contains no explicit statutory

authority for the recovery of expert fees.

o6.2 69 6'@.6¢¢64. 68 978 66.8 6 66.6 8.6 8 68 642 oe Oe

The Court’s decision in Casey does not

endorse an elevation of legislative history

over the absence of explicit statutory

authority for the recovery of expert fees

gf err rere

The Second Circuit erred in relying on

legislative history to construe the IDEA

as providing for the recovery of expert

PN Selonsedas aks 505504 e ee

il

Contents

Page

II. The Circuit Court erred 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. ..........

en Oe ee ee ee cine gee ae a &

lil

TABLE OF CITED AUTHORITIES

CASES

Page

Application of the Bd. of Educ. of the Arlington

Cent. Sch. Dist., Appeal No. 99-65

CBAs OG. 36, TPF) oo sik vce eas

Arons v. New Jersey State Bd. of Educ.,

No. 85 Civ. 209, 1987 WL 10808

(D.N.J. May 12, 1987),

aff ’d, 842 F.2d 58 (3d Cir.),

cert. denied, 488 U.S. 942 (1988) ...

Arons v. State of New York,

No. 04 Civ. 0004, 2004 WL 1124669

(S.D.N.Y. May 20, 2004) ..........

B.D. v. DuBuono,

177 F. Supp. 2d 201 (S.D.N.Y. 2001)

Board of Educ. of Frederick County v. LS.,

358 F. Supp. 2d 462 (D. Md. 2005) ..

Cynthia K. v. Board of Educ.

of Lincoln-Way High Sch. Dist.,

No. 95 Civ. 7172, 1996 WL 164381

ioe ae Se. re ee

Eirschele v. Craven County Bd. of Educ.,

7 F. Supp. 2d 655 (D.N.C. 1998) ....

Goldring v. District of Columbia,

416 F.3d 70 (D.C. Cir. 2005) .......

ore Sr passim

iv

Cited Authorities

Page

Gross v. Perrysburg Exempted Village Sch. Dist.,

306 F. Supp. 2d 726 (N.D. Ohio 2004) ........ 2

Mayo v. Booker,

56 F. Supp. 2d 597 (D. Md. 1999) ...... rere 1

Mr. J. v. Board of Educ.,

98 F. Supp. 2d 226 (D. Conn. 2000) .......... 2

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

86 F. Supp. 2d 354 (S.D.N.Y. 2000) ........... 7

Murphy vy. Arlington Cent. Sch. Dist. Bd. of Educ.,

99 Civ. 0204, 2003 WL 21694398

aes 8 SOE ki WD 0 8 090 hs SSS AS 6,7

Murphy vy. Arlington Cent. Sch. Dist. Bd. of Educ.,

Oe Pie OAs Le ls MD hin cena nanan passim

Neosho R-V Sch. Dist. v. Clark,

Bd Wie Pen Ce Ge te) ok a eae ance Oe

Pazik y. Gateway Reg’l Sch. Dist.,

130 F. Supp. 2d 217 (D. Mass. 2001) .......... 2

Shanahan v. Board of Educ.

of the Jamesville - DeWitt Sch. Dist.,

953 F. Supp. 440 (N.D.N.Y. 1997). .......5.... 2

T.D. v. LaGrange Sch. Dist. No. 102,

De ae es BD ee ees 2

Cited Authorities

Page

TRW, Inc. v. Andrews,

Pe las RP CED 0c ceed cearvoabnadsane ks 3

Verginia McC. v. Corrigan-Camden Indep. Sch. Dist.,

909 F. Supp. 1023 (E.D. Tex. 1995) ........... 2

West Virginia Univ. Hosps., Inc. v. Casey,

gt Tk} Sa emer or passim

STATUTES

Rds a RSD, Co evcber ceeedes aware 3

RULES

wo Se | | FPP TPE e TTT rir ire eer 2

SECONDARY AUTHORITY

Oliver Wendell Holmes, Collected Legal Papers

to SE Ore eee ey perc eee reer ee 5

1

BRIEF IN REPLY

I. The Second Circuit erred in holding that the IDEA’s

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

§ 1415(i)(3)(B), 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

Individuals’s with Disabilities Education Act (“IDEA”),

which provides only for shifting of “reasonable attorneys’

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

the Act. See West Vir. Univ. Hosps., Inc. v. Casey, 499 U.S.

83, 98-99 (1991) (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). “The

correct decision,” on whether or not the IDEA provides for

recovery of expert fees, “does not seem difficult to reach,

for the Supreme Court has stated in fairly unequivocal terms

that language nearly identical to that used in Section 1415 is

unambiguous and, more to the point, does not allow a

prevailing party to shift his expert fees.” Goldring v. District

of Columbia, 416 F.3d 70, 73 (D.C. Cir. 2005).

Contrary to the parents’ claim, there is an equal amount

of district court precedent denying recovery of expert fees

under the IDEA, see Mayo v. Booker, 56 F. Supp. 2d 597,

599 (D. Md. 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

2

witness fees”); Shanahan v. Board of Educ. of the Jamesville

- DeWitt Sch. Dist., 953 F. Supp. 440, 446 n.9 (N.D.N_LY.

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), as there is allowing for such recovery, see

Board of Educ. of Frederick County v. 1.S., 358 F. Supp. 2d

462, 473 (D. Md. 2005); Gross v. Perrysburg Exempted

Village Sch. Dist., 306 F. Supp. 2d 726, 738-739 (N.D. Ohio

2004); B.D. v. DeBuono, 177 F. Supp. 2d 201, 207-208

(S.D.N.Y. 2001); Pazik v. Gateway Reg’! Sch. Dist., 130 F.

Supp. 2d 217, 220 (D. Mass. 2001); Mr. J. v. Board of Educ..,

98 F. Supp. 2d 226, 242-243 (D. Conn. 2000); Verginia McC.

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

1033 (E.D. Tex. 1995).

A. The Court should exercise it judicial discretion

and grant certiorari in this matter given the

pronounced conflict between the circuit courts of

appeal on the recovery of expert fees under the

IDEA.

As a threshold matter, the issue of whether or not expert

fees are recoverable as costs under the attorneys’ fees shifting

provision of the IDEA is ripe for review by the Court at this

time. Supreme Court Rule 10(a) provides that the Court will

entertain appeals where a United States court of appeals has

entered a decision in conflict with the decision of another

United States court of appeals on the same important matter.

Here, the Second Circuit’s holding that “Congress intended

to and did authorize the reimbursement of expert fees in IDEA

actions,” Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,

402 F.3d 332, 336 (2d Cir. 2005), directly conflicts with the

holdings of three other circuits, see Goldring, 416 F.3d at 73

\

3

(prevailing party under IDEA cannot recover expert fees);

T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 482 (7"

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

1022, 1031 (8” Cir. 2003) (same). While the parents state

that the District’s petition for writ of certiorari should be

denied because “fewer than half the circuits have yet

considered the question [of expert fees under the IDEA],”

see Res. Br. at 3, this proposed test is not recognized by statue,

court rule or case law.

B. The IDEA contains no explicit statutory authority

for the recovery of expert fees.

The IDEA’s fee-shifting provision states that “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(i)(3)(B)

(emphasis added). That the crucial statutory language --

“reasonable attorneys’ fees as part of the costs,” id. -- faiis

to allow a prevailing party to shift his expert fees flows

directly from the cannon of statutory construction known as

expressio unius est exclusio alterius, to expressly include

one or more of a class in a written instrument must be taken

as an exclusion of all others. See TRW, Inc. v. Andrews, 534

U.S. 19, 29 (2001).

C. The Court’s decision in 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 Second Circuit 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

4

91 n.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.

In Casey, the Court addressed whether an earlier version

of 42 U.S.C. § 1988 provided explicit statutory authorization

for the recovery of expert fees. See Casey, 499 U.S. at 87.

The Court concluded that it did not. See id. at 97. “Because

Section 1415 and the version of section 1988 construed in

Casey contain materially identical language and Casey held

that section 1988’s language does not enable a prevailing

party to shift expert fees, we cannot but conclude that section

1415 does likewise.” Goldring, 416 F.3d at 74.

The Casey Court’s footnote reference to an IDEA

Conference Report, see Casey, 499 U.S. at 91 n.5, does not

authorize a departure from the ordinary meaning of the term

“costs” in the IDEA, see Goldring, 416 F.3d at 75. “If the

[Casey] Court had found this one sentence of legislative

1. The Court's footnote states in full:

WVUH cites a House Conference Committee Report

from a statute passed in 1986, stating: “The 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 H.R.Conf.Rep. No. 99-687, p. 5 (1986)

(discussing the Handicapped Children’s Protection Act

of 1986, 20 U.S.C. § 1415(e)(4)(B)). In our view this

undercuts rather than supports WVUH’s position: The

specification would have been quite unnecessary if the _

ordinary meaning of the term included those elements.

The statement is an apparent effort to depart from

ordinary meaning and to define a term of art.

Casey, 499 U.S. at 91 1.5.

5

history compelling, it would have included section 1415 in

its catalogue of statutes authorizing a prevailing party to shift

attorneys’ fees as well as expert fees.” See id. at 75-76.

D. The Second Circuit erred in relying on legislative

history to construe the IDEA as providing for the

recovery of expert fees.

The Second Circuit’s reliance on legislative history to

conclude that expert fees are recoverable under the IDEA,

see Murphy, 402 F.3d 336-37, is misplaced as “a sentence in

a conference report cannot rewrite unambiguous statutory

text, particularly text with a Supreme Court-tested and -

approved meaning,” see Goldring, 416 F.3d at 75. As Justice

Oliver Wendell Holmes once quipped: “Only a day or two

ago—when counsel talked of the intention of a legislature, I

was indiscreet enough to say I don’t care what their intention

was. I only want to know what the words mean.” See Oliver

Wendell Holmes, Collected Legal Papers at 207 (1920).

Justice Holmes also stated, “We do not inquire what the

legislature meant; we ask only what the statute means.”

See id. =:

Likewise, Congress’s inaction with respect to section

1415 following the Court’s decision in Casey is not probative

to the issue of recovery of expert fees under the IDEA.

Compare Goldring, 416 F.3d at 76 with Murphy, 402 F.3d at

337. The Second Circuit erred in reasoning “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 sufficiently indicated

in the Conference Committee Report that prevailing parties

could recover expert fees under the Act.” See Murphy, 402

F.3d at 337. The D.C. Circuit’s reasoning is more persuasive:

“given that the Casey Court merely labeled the Conference

6

Report an ‘apparent effort’ by the congressional committee

and did not number section 1415 among the statutes

authorizing the recovery of attorneys’ fees and expert fees,

we are unwilling to infer from Congress’ failure after Casey

to amend section 1415 that the Congress believed the

Supreme Court had considered the text of to have been altered

by the Conference Report.” See Goldring, 416 F.3d at 76

(emphasis in original). The Second Circuit’s inferential path,

that Congress’ failure after Casey to amend section 1415

reflects Congress’ belief that the Supreme Court had

considered the IDEA’s text to have been altered by the

Conference Report, see Murphy, 402 F.3d at 337, “leads to

where reason goes to die,” see Goldring, 416 F.3d at 76.

II. The Circuit Court erred 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.

Contrary to the parents’ assertion, the dearth of evidence

presented to the lower courts of Ms. Arons’ alleged expertise

and expert services rendered to the parents is not a “highly

fact-bound” claim. See Res. Br. at 3. It is undisputed that

Ms. Arons is not licensed to practice law in New York State

or any other. See Murphy v. Arlington Cent. Sch. Dist. Bd. of

Educ., No. 99 Civ. 0204, 2003 WL 21694398, at *4 (S.D.NLY.

July 22, 2003), aff’d, 402 F.3d 332 (2d Cir. 2005). zs

From Ms. Arons’ certifications and the record of the

impartial hearing below, it is also undisputed that,

notwithstanding the absence of a license to practice law, Ms.

Arons systematically performed tasks at the hearing which

one can only be characterized as the practice of law: she

accepted the parents’ case, she set a fee, she gave legal advice,

she planned legal strategy, she prepared examination