12

- 4520

- cv(L)

C.G. v. Ithaca City School District

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court ’ s Local Rule 32.1.1. When citing a summary order in a document filed with this Cour t, a party must cite either the Federal Appendix or an electronic database (with the notation “ summary order ” ). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square

, in the City of New York, on the 21 st day of August , two thousand thirteen

.

PRESENT: J OSÉ A. C ABRANES
,

C HESTER J. S TRAUB
, S USAN L. C ARNEY
,

Circuit Judges.

_____________________________________

C.G.

, i ndividually and as parent and next friend of J.M.G.

, a child with a disability

,

Plaintiff s

- Appellant s

- Cross

- Appellees

,

v. Nos. 12

- 4520

- cv(L);
12

- 4522

- cv(CON)
I THACA C ITY S CHOOL D ISTRICT
,

Defendant

- Appellee

- Cross

-

Appellant.

_____________________________________

FOR PLAINTIFF S

- APPELLANT S : Jason H. Sterne, Phillip B. Abramowitz

, Andrew K. Cuddy

, Cuddy Law Fir m, P.C., Auburn

, NY

.

FOR DEFENDANT

- APPELLE E : J onathan B. Fellows, Kate I. Reid, Bond

, Scho eneck & King, PLLC, Syracuse, N Y

.2

Appeal from a judgment of the United States District Court for the Northern District of

New York ( Gary L. Sharpe

, Chief Judge ).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the District Court ’ s September 24 , 2012 judgment is

AFFIRMED

.

Plaintiff s

- appellant s

- cross

- a ppellee s C.G., individually and on behalf of J.M.G. ( “ C.G. ” ), appeal and defendant

- appellee

- cross

- a ppellant Ithaca City School Distri ct ( “ Ithaca ” ) cross

- appeal s from the District Court ’ s September 24, 2012 judgment awarding C.G. attorneys ’ fees as the prevailing party in an administrative action under the Individuals with Disabilities Education Improvement Act ( “ IDEA ” ), 20 U.S.C. § 1400

, et seq. We assume the parties ’ familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary to explain our decision to affirm

.

BACKGROUND

On June 23, 2011, C.G. sent Ithaca a request for a “ due pro cess hearing

, ” alleging that Ithaca had denied J.M.G. a free and appropriate p ublic education ( “ FAPE ” ). On July 12, 2011 , Ithaca provided C.G. with a pr oposed “ Memorandum of Agreement ” purpo rting to address C.G. ’ s

concerns , which C.G. rejected the next day

, resulting in the underlying administrative action

. On September 12, 2011, an Impartial Hearing Office r ( “ IHO ” ) determined that Ithaca had in fact denied J.M.G. a FAPE and ordered Ithaca to take certain remedial steps. Ithaca then appealed to

the State Review Offic er ( “ SRO ” ), who annulled certain portions of the IHO ’ s decision, but affirmed the majority of it

.

On December 15 , 2011, C.G. filed suit in the District Court seeking attorneys ’ fees from

Ithaca as a “ prevailing party ” under 20 U.S.C. § 1415(i)(3)(B)(i)(I)

. The District Court awarded fees

for time spent prior to Ithaca ’ s July 12 settlement offer and time spent on the instant fee action. With regard to time spent on the administrative action, the District C ourt held that C.G. was entitled

to remuneration for only twenty percent of the hours billed in light of the substantial similarity

between the administrat

ively

- ordered relief and the proposed relief contained in the July 12 offe r

. Applying an hourly rate of $275 per hour, the C ourt ultimately awarded attorneys ’ fees in the amount of $16,830 plu s costs

. C.G. now appeal s , and Ithaca cross

- appeals the District Court ’ s award.

DISCUSSION

W e generally review a District Court ’ s grant of attorneys ’ fees under t he IDEA for abuse of discretion, J.C. v. Reg ’

l Sch. Dist. 10, Bd. of Educ. , 278 F.3d 119, 123 (2d Cir. 2002)

. “ W e review de3

novo the District Court ’ s interpretation of the relevant fee statute itself [,] .

. . interpret[ing] the IDEA fee provisions in consonance with those of other civil rights fee

- shifting statutes. ” I.B. ex rel. Z.B. v. N.Y. City Dep ’

t of Educ. , 336 F.3d 79, 80 (2d Cir. 2003) ; see also Pres. Coal. of Erie Cnty. v. Fed. Transit

Admin. , 356 F.3d 444, 450 (2d Cir. 2004) ( reviewing de novo the legal question of whether a litigant is a prevailing party

).

On appeal, the parties dispute: (1) whether the District Court erred in concluding that C.G.

was the prevailing party in the administrative action; (2) assuming C.G. did prevail, whether an award of attorneys’ fees accrued after the settlement offer was made is prohibite d because the IHO

ordered relief was not more favorable than the relief proposed in the prior settlement offer; and (3)

whether the District Court erred in reducing C.G.’s attorneys’ fees for time spent on the

administrative action by eighty percent

.

A.

The threshold question presented on this appeal is whether C.G. is a prevailing party to

whom the District Court was permitted to award attorney s ’ fees. The IDEA contains a fee

- shifting provision under which a District Court , in its discretion, may award attorney s ’ fees “ to a prevailing party who is the parent of a child with a disability. ” 20 U.S.C. § 1415(i)(3)(B)(i)(I). “ [A] prevailing party is one who has achieved a judicially sanctioned change in the legal relationship of the parties, via a ju dgment on the merits or a court

- ordered consent decree. ” Mr. L. v. Sloan , 449 F.3d 405, 406

- 07 (2d Cir. 2006) (citing Buckhannon Board & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.

, 532 U.S. 598, 604 (2001) ). In A.R. ex rel. R.V. v. N.Y. City Dep ’ t of Educ. , 407 F.3d 65 (2d Cir. 2005),

we extended this definition of “ prevailing party ” to “ a plaintiff who receives IHO

- ordered relief on the merits in an IDEA administrative proceeding. ” Id. at 75

.

Ithaca argues that C.G. wa s not a prevailing party because Ithaca had already agreed in the July 12 settlement offer to provide the relief that the IHO ultimately awarded

. Yet a “ plaintiff who

receives IHO

- ordered relief on the merits in an IDEA administrative procee ding is a ‘ prevailing

party , ’” regardless of any prior settlement offer, because an IHO ’ s decision “ change s the legal

r elationship between the partie s : Its terms are enforceable, if not by the IHO itself, then by a court, including through an action under 42 U.S.C. § 1983. ” Id. at 75

- 76 ; cf. Raishevich v. Foster , 247 F.3d 337, 345 (2d Cir. 2001) (holding in the § 1983 context that plaintiff was a prevailing party “ despite

the fact that he received a lesser [damages] am ount than he sought, because a ‘ judgment for damages

in a ny amount

. . . modifies the defendant ’ s behavior for the plaintiff ’ s benefit by forcing the defendant to pay an amount of mo ney he otherwise would not pay. ’” ( quoting Farrar v. Hobby , 5064

U.S. 103 , 113 (1992) ) )

. 1 Accordingly, C.G. w as a prevailing party notwithstanding her rejection of

the July 12 settlement offer

.

B.

Even when a party prevails, t he IDEA prohibits an award of attorneys ’ fees “ for services performed subsequent to the time of a written offer of settlement to a parent ” if, among other requirements, “ the court . . . finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement. ” 20 U.S.C. § 1415(i)(3)(D)(i)(III). The District Court

held that this prohibition did n o t apply here because

, inter alia

, the IHO order ed compensatory counseling , which was not part of the July 12 settlement offer.

Ithaca now argues that this relief was not “ obtained ” by C.G. because she did not request it

in the notice of a due process hearing n or during the so

- called “ impartial hearing ” before the IHO

. But whether the relief was initially sought by the plaintiff is a matter for the District Court to
consider

— as it did here

—

in deciding the appropriate size of the award ; the sua sponte nature of the relief does not operate as a bar on attorneys’ fees altogether

. Since t he compensatory counseling

was not previously offered by Ithaca

, the administrative relief obtained by C.G. was more favora ble

, albeit only marginally

, t han the prior settlement offer

, and the prohibition on attorneys’ fees does

n o t apply.

C.

Once the fees threshold i s crossed, a district c ourt mu st calculate fees using the “ lodestar ” approach set forth in Millea v. Metro

– North R.R. Co. , 658 F.3d 154 (2d Cir. 2011)

, whereby a fee

award is derived by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Id. at 166

- 67. “ A District Court m ay adjust the lodestar when it does not adequately take into account a factor that may properly be considered i n determining a reasonable fee, ” i d. at 167 ( internal quotation marks omitted) , such as cases wher e the plaintiff only had a small

“ degree of success, ” see Barfield v. N.Y.C. Health & Hospitals Corp. , 537 F.3d 132, 152 (2d Cir. 2008) (defining “ degree of success ” as “ the quantity and quality of relief obtained, as compared to what the plaint iff sought to achieve ” (internal quotation marks omitted) )

.

The District Court e ngaged in exactly this inquiry. It applied the customary rate for attorneys in the comm unity, which it found to be $275 per hour

, and it considered the total number

1 This view is in line with those of sister courts of appeal that have considered the issue

, each of which has held that a party i n an IDEA action who rejects a settlement offer and later obtains no more than what was offered still prevails by obtaining judicially sanctioned relief. See Gary G. v. El Paso Indep. Sch. Dist. , 632 F.3d 201, 208 (5th Cir. 20 11); Alegria ex rel. Alegria v. District of Columbia , 391 F.3d 262, 267 (D.C. Cir. 2004); T.D. v. LaGrange Sch. Dist. No. 102 , 349 F.3d 469, 476 (7th Cir. 2003); John T. ex rel Paul T. v. Del

. Cnty

. Intermediate Unit

, 318 F.3d 545, 557 (3 d Cir. 2003).5

of hours expended. It then took care to examine C.G. ’ s limited success in the administrative

action

— as measured by the administrative relief C.G. sought and obtained compared to the

conces sions Ithaca had already made in the July 12 settlement offer

— and adjusted the fees for time

spent in that action downward by eighty percent

. See id. at 152

- 53 (affirming a reduction of the lodestar figure by fifty percent because plaintiff had failed in her “ primary aim ” of gaining co llective action certification). Accordingly

, we conclude that the District Court did not err in award ing $16,830 plus costs to C .G.

CONCLUSION

We have considered all of the parties ’ remaining arguments on appeal and find them to be

without merit. F or the reasons stated above, we AFFIRM the September 24, 2012 judgment of the

District Court

.

FOR THE COURT:

Catherine O ’ Hagan Wolfe, Clerk