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B.P. v. Charlotte-Mecklenburg Board of Education

April 1, 2010



THIS MATTER is before the Court on the Plaintiffs' Motion for Attorney's Fees and Costs [Doc. 20] and for a final determination of the award to the Plaintiffs as the prevailing parties in this matter. The Court held a hearing on these issues on February 23, 2010.


The Plaintiffs Leslie and Trevor Petruk, individually and as the legal guardians and next friends of their minor child B.P., initiated this action on October 26, 2006, seeking review of a state administrative decision in a special education case pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (1997) ("IDEA").*fn1 On October 26, 2009, the Court entered an Order, finding that the Defendant CharlotteMecklenburg Board of Education ("CMS") failed to provide B.P. a free appropriate public education ("FAPE") during the 2004-05 school year and the 2005 extended school year ("ESY"). The Court ordered CMS to reimburse the Petruks for the costs of the private preschool program in which they enrolled B.P. for the 2004-05 school year and 2005 ESY, as well as for transportation expenses for the applicable time period. Because the Court found that the Petruks had failed to demonstrate that CMS denied B.P. a FAPE for the 2005-06 school year, the Petruks' request for reimbursement of tuition and related expenses for that year was denied. [Doc. 18 at 56]. The Petruks were directed to file their petition for attorney's fees by November 15, 2009, so that a hearing could be set to determine the final amount of the Petruks' award. [Id. at 57].

The Petruks filed their Motion for Attorney's Fees and Costs and supporting documentation on November 13, 2009. [Doc. 20]. After receiving an extension of time to respond, CMS filed its opposition to the Petruks' Motion on December 14, 2009. [Doc. 30]. The Petruks' Reply was filed on December 23, 2009. [Doc. 31]. The parties appeared before the undersigned on February 23, 2010. Subsequent to this hearing, the Petruks' counsel submitted a Supplemental Declaration in support of the request for attorney's fees and costs. [Doc. 33].

Having been fully briefed and argued, these matters are now ripe for disposition.


A. Costs Related to the 2004-05 School Year and 2005 ESY

The IDEA authorizes the Court to "grant such relief as [it] determines is appropriate." 20 U.S.C. § 1415(e)(2). While the IDEA does not authorize the award of monetary damages, "courts can equitably reimburse parents for funds expended on their child's education because of the school district's failure to provide a FAPE." Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 298 (4th Cir. 2005).

In the present case, the Petruks seek reimbursement of the costs of the private preschool program in which they enrolled B.P. for the 2004-05 school year, the 2005 ESY, and the 2005-06 school year. The Court has determined that the Petruks are entitled to reimbursement for the private preschool tuition related to the 2004-05 school year and the 2005 ESY. The parties agree that the cost of this tuition amounts to $6,188.00.

The Court also has determined that the Petruks are entitled to reimbursement for transportation expenses incurred during the 2004-05 school year and the 2005 ESY. While the parties agree on the amount of mileage that the Petruks occurred during this time period, the parties disagree as to the applicable rate for this mileage. The Petruks argue that they should be reimbursed at the current (2010) standard mileage rate of $.50 per mile, which would result in an award of $3,384.00. CMS contends that the Court should apply the mileage rate in effect at the time that the mileage expenses were incurred, which was $.375 per mile for the period of August 2004 to December 2004 and $.40 per mile for the period of January 2005 to August 2005. Based on the mileage rates in effect during these time periods, CMS contends that the Petruks are entitled to an award of $2,658.96 for mileage reimbursement.

The Court agrees with CMS that the mileage reimbursement should be calculated using the mileage rate in effect at the time that the mileage expenses were incurred. See, e.g., Alfaro v. Gen. Motors Corp., No. 05-cv-00645-MSK-BNB, 2007 WL 840505, at *3 n.2 (D. Colo. Mar. 19, 2007) (awarding mileage to witness at the rate in effect at time of deposition). Accordingly, the Petruks shall be awarded a total of $2,658.96 for mileage reimbursement.

B. Attorney's Fees

In any action or proceeding brought under the IDEA, the Court in its discretion may award reasonable attorney's fees as part of the costs to the prevailing party who is a parent of a child with a disability. 20 U.S.C. § 1415(e)(4)(B). A party need not prevail on all claims in order to be considered a prevailing party under the IDEA. See G ex rel. RG v. Fort Bragg Dependent Schools, 343 F.3d 295, 310 (4th Cir. 2003). A party is "prevailing" where it can "point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989).

In the present case, CMS concedes, and the Court so finds, that the Petruks are "prevailing parties" within the meaning of the IDEA. A finding that a party is a prevailing party, however, only makes the party eligible to receive an award of attorneys' fees under the IDEA; "it does not automatically entitle [the prevailing party] to recover the full amount that he spent on legal representation." D.W. ex rel. W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998).

The starting point for determining the amount of a reasonable fee is the calculation of the lodestar figure, which is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "If properly computed, 'the lodestar figure will normally reflect a reasonable fee.'" JP ex rel. Peterson v. County Sch. Bd. of Hanover County, Va., 641 F.Supp.2d 499, 512 (E.D.Va. 2009) (quoting A.D. ex rel. S.D. v. Bd. of Pub. Educ. of the City of Asheville, 99 F.Supp.2d 683, 687 (W.D.N.C. 1999)).

The determination of a reasonable attorney's fee is a matter of discretion with the Court. See Robinson v. Equifax Info. Services, 560 F.3d 235, 243 (4th Cir. 2009). In determining what is "reasonable," the Fourth Circuit has instructed that a district court's discretion should be guided by the following factors, known as the "Johnson factors":

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.

Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008) (applying twelve-factor test set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)) (citation omitted).

After determining the lodestar amount, "the court then should subtract fees for hours spent on unsuccessful claims unrelated to successful ones." Id. (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)). "Once the court has subtracted the fees incurred for unsuccessful, unrelated claims, it then awards some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff." Grissom, 549 F.3d at 321 (quoting Johnson, 278 F.3d at 337).

The party seeking an award of attorney's fees must submit adequate evidence detailing the hours worked and the rates claimed. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. "Where the attorney's documentation is inadequate, or the claimed hours are duplicative or excessive, the court may reduce the award accordingly." Neves v. Neves, 637 F.Supp.2d 322, 340 (W.D.N.C. 2009). "The goal is to not overcompensate counsel with a 'liberal' fee, but to award the 'reasonable' fee necessary to encourage competent lawyers to undertake the representation." Id. (citation omitted).

1. Reasonable Hours Expended

In the present case, the Petruks seek an award of attorney's fees based upon a total of 198.4 hours of legal services and 41.3 hours of travel time related to the handling of the due process case, the NCDPI appeal, the present appeal, and filing of the attorney's fees motion by their counsel, Stacey B. Bawtinhimer.*fn2 Ms. Bawtinhimer is licensed in the States of North Carolina and Georgia, and is an attorney in good standing with the North Carolina and Georgia Supreme Courts, the North Carolina Court of Appeals, each of the federal district courts of North Carolina, the Fourth Circuit Court of Appeals, and the United States Supreme Court. [Declaration of Stacey B. Bawtinhimer ("Bawtinhimer Decl."), Doc. 22 at ¶2]. She has practiced law for nineteen years, has been representing disabled students for over fifteen years, and has been exclusively practicing special education/education law on behalf of disabled students for over ten of those years. [Id. at ¶3]. To her knowledge, Ms. Bawtinhimer is the only private-practice attorney who exclusively practices special education law. [Id. at ¶4]. Ms. Bawtinhimer is active in the North Carolina Bar Association, as well as various groups involved in the promotion of the rights of disabled children. [Id. at ¶ 5]. She has taught courses on special education law for the North Carolina Bar, Campbell University School of Education, and Wake Forest University Neuropsychology Department. [Id. at ¶ 6].

In support of the Petruks' claim for attorney's fees, Ms. Bawtinhimer has submitted two declarations, supported by detailed billing records. [Bawtinhimer Decl., Doc. 22; Supplemental Declaration of Stacey B. Bawtinhimer ("Bawtinhimer Supp. Decl."), Doc. 33]. As previously noted, CMS does not dispute the reasonableness of the hours expended by the Petruks' counsel in this matter. [Doc. 30 at 7]. Upon careful review of Ms. Bawtinhimer's billing records and declarations, the Court is satisfied that ...

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