10-4446-cv (L); 11-2225-cv (L)
E.S. & M.S. ex rel. B.S. v. Katonah-Lewisboro 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 COURT, 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 6th day of July, two thousand and twelve.

PRESENT:

            AMALYA L. KEARSE,
            BARRINGTON D. PARKER,
            PETER W. HALL,
                                    Circuit Judges.
__________________________________________________

E.S. and M.S. on behalf of B.S.,

                 Plaintiffs-Appellants-Cross-Appellees,

                 -v.-                                                  No. 10-4446-cv(L)
                                                                       No. 10-5007-cv (XAP)
Katonah-Lewisboro School District,

                 Defendant-Appellee-Cross-Appellant,

__________________________________________________




                                                       -1-
E.S. and M.S. on behalf of B.S.,

                  Plaintiffs-Counter-Defendant-Appellee-Cross-Appellant,

                  -v.-                                                 No. 11-2225-cv (L)
                                                                       No. 11-2228-cv (XAP)

Katonah-Lewisboro School District,

            Defendant-Counter-Claimant-Appellant-Cross-Appellee,
___________________________________________________

For Plaintiffs:                                       PETER D. HOFFMAN (Giulia Frasca, on
                                                      brief), Law Office of Peter D. Hoffman,
                                                      P.C., Katonah, New York and STEPHEN
                                                      BERGSTEIN, Bergstein & Ullrich, LLP,
                                                      Chester, New York.

For Defendants:                                       MARK C. RUSHFIELD, Shaw, Perelson& May
                                                                                        ,
                                                      Lambert, LLP, Poughkeepsie, New York.

        Appeal from judgments of the United States District Court for the Southern District of

New York (Preska, C.J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, that the judgments of the district court are AFFIRMED.

        Plaintiffs-Appellants-Cross-Appellees E.S. and M.S. (on behalf of their child, B.S.)

(“Plaintiffs”) appeal from the portion of the judgment of the district court entered on October 4,

2010, granting summary judgment in favor of Defendant-Appellee-Cross-Appellant Katonah-

Lewisboro School District (“KLSD”) on the Plaintiffs’ claim that KLSD denied B.S. a free

appropriate public education (“FAPE”)—required under the Individuals with Disabilities

Education Act, 20 U.S.C. § 1401 et seq. (“IDEA”)—for the 2006-2007 school year. KLSD

cross-appeals the portion of the same judgment that granted summary judgment in favor of the

Plaintiffs on their claim that KLSD denied B.S. a FAPE for the 2007-2008 school year.

Separately, KLSD appeals the April 20, 2011, judgment of the district court that awarded

                                                -2-
attorneys’ fees and costs to the Plaintiffs. Plaintiffs cross-appeal the district court’s decision to

reduce the hourly billing rates used in the district court’s calculation of the award. We address

both appeals and the parties’ cross-appeals in this consolidated summary order. For the reasons

that follow, we affirm the judgments of the district court. We assume the parties’ familiarity

with the underlying facts, the procedural history in this case, and the issues on appeal.

       The IDEA requires states (and school districts) that receive federal funds to “develop

plans to assure ‘all children with disabilities the right to a [FAPE].’”1 Walczak v. Fl. Union Free

Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting 20 U.S.C. § 1412(1)). To meet this

requirement, the school district must provide “special education and related services,” 20 U.S.C.

§ 1401(9), that are “reasonably calculated to enable the child to receive educational benefits.”

Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The lynchpin of the IDEA and the school

district’s obligation is the development of an Individualized Education Plan (“IEP”) for the

disabled child. See Walczak, 142 F.3d at 122. In New York, the annual IEP is developed

through a Committee on Special Education (“CSE”), the members of which are appointed by

school boards or trustees of school districts. Id. at 123. The “special education and related

services must be provided in the least restrictive setting consistent with a child’s needs.” Id. at

122. The substantive requirements of the IDEA are met when the IEP “is likely to produce

progress, not regression” and “affords the student . . . an opportunity greater than mere trivial

advancement.” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (internal

quotation marks omitted).


       1
          The IDEA has both a procedural and a substantive component. See Bd. of Educ. v.
Rowley, 458 U.S. 176, 204-09 (1982). Plaintiffs’ appeal focuses on the substantive component,
i.e., whether the school district provided B.S. with a FAPE reasonably calculated to provide
educational benefit.

                                                  -3-
       The administrative procedures by which parents (1) may challenge a school district’s

decisions with respect to an IEP and (2) may seek reimbursement for tuition expenditures

incurred for their child are neither in dispute nor at issue in this case. See generally 20 U.S.C. §

1415; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111-13 (2d Cir. 2007).

       In the district court and on appellate review of those administrative decisions, courts

conduct an independent review of the record, basing an assessment on the “preponderance of the

evidence developed at the administrative proceedings and any further evidence presented by the

parties.” Walczak, 142 F.3d at 122-23. “[T]his ‘independent’ review ‘is by no means an

invitation to the courts to substitute their own notions of sound educational policy for those of

the school authorities they review.’” Id. at 129 (quoting Rowley, 458 U.S. at 205-06). “While

federal courts do not simply rubber stamp administrative decisions, they are expected to give

‘due weight’ to these proceedings, mindful that the judiciary generally ‘lack[s] the specialized

knowledge and experience necessary to resolve persistent and difficult questions of educational

policy.’” Id. at 128 (alteration in Walczak) (quoting Rowley, 458 U.S. at 206, 208).

       The principal dispute in the parties’ first appeal is whether the child B.S. made progress

during his time at KLSD and later at the Maplebrook School (“Maplebrook”) after the parents

exercised their prerogative to place B.S. in private school. Plaintiffs contend that B.S. never

made progress while at KLSD, which justifies their unilateral decision to withdraw B.S. in 2006

and place him at Maplebrook. KLSD contends that B.S. was making progress prior to 2006 and

that KLSD designed an IEP for the 2006-2007 school year that complied with the requirements

under the IDEA. KLSD also argues, however, that once the Plaintiffs pulled B.S. from KLSD,

he showed little or no progress at Maplebrook. KLSD contends that B.S.’s lack of progress at

Maplebrook justified the IEP they designed for the 2007-2008 school year. Plaintiffs counter

                                                 -4-
that KLSD did not take into account any of the progress B.S. made while at Maplebrook when

KLSD designed the 2007-2008 IEP, and therefore the IEP was inadequate.

        To determine whether a child has made progress, we “examine the record for any

‘objective evidence’ indicating whether the child is likely to [have] ma[d]e progress or

regress[ed]” during his time in the particular school. Walzcak, 142 F.3d at 130 (quoting Mrs. B.

v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997)). In this regard, we affirm the

district court’s well-reasoned, thorough decision for substantially the reasons stated therein. E.S.

ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417 (S.D.N.Y. 2010). The district

court marshaled the evidence and determined that the record showed B.S. was making progress

(despite his low test scores) during the 2004-2006 school years while at KLSD. The progress

reports, along with the testimony of B.S.’s special education teacher, establish by a

preponderance of the evidence that B.S. was progressing at KLSD and was likely to continue

doing so if he remained there. While KLSD may not have provided an ‘optimal’ education to

B.S., the IDEA requires only a “basic floor of opportunity.” Rowley, 458 U.S. at 200 (internal

quotation marks omitted). We agree with the district court that the record demonstrates the

school district’s IEP met the substantive requirements of the IDEA for the 2006-2007 school

year.

        Turning to the district court’s decision with respect to the 2007-2008 IEP, the record also

included objective evidence that B.S. continued to progress while at Maplebrook during the

2006-2007 school year, a fact that KLSD did not take into account when designing the IEP. The

district court noted the progress reports by his teachers from Maplebrook as well as standardized

test scores and expert evaluations indicating that B.S. made progress in communication skills,

social skills and almost every academic area. KLSD relies on the conclusory testimony of Dr.

                                                -5-
McNulty for the proposition that B.S. made no meaningful progress while at Maplebrook.2 Dr.

McNulty, however, like other KLSD officials, never observed, met with, or otherwise attempted

to evaluate B.S. during the 2006-2007 school year. In sum, we have little difficulty concluding

that KLSD’s position that B.S. did not progress while at Maplebrook is contrary to a

preponderance of the evidence in the record. Consequently, having been designed without

regard for any of the progress B.S. did make at Maplebrook, the 2007-2008 IEP was likely to

cause B.S. to regress or make only trivial advancement. KLSD thus failed to provide an

individualized FAPE as required by the IDEA for the 2007-2008 school year.

       We also conclude that Maplebrook provided instruction “reasonably calculated to enable

[B.S.] to receive educational benefits.” Gagliardo, 489 F.3d at 112 (internal quotation marks

omitted) (discussing that the same considerations govern both the standard for determining

whether private placement is appropriate and the standard for determining whether the public

placement was appropriate to begin with). The record shows that Maplebrook developed an IEP

for B.S. in which he achieved considerable success meeting his objectives. Thus, and because

KLSD failed to take his progress at Maplebrook into account, B.S.’s parents were justified in

keeping B.S. at Maplebrook. The district court properly ordered that KLSD reimburse Plaintiffs

for Maplebrook tuition for the 2007-2008 school year.

       We now turn to KLSD’s appeal and Plaintiffs’ cross-appeal regarding the district court’s

award of $156,976.84 in attorneys’ fees, paralegal fees, and expenses to the Plaintiffs. “We



       2
          The Dorta Report also relied upon by KLSD does discuss B.S.’s low test scores, but that
is a distinct concept from whether a student has progressed from one year to the next. See M.S.
ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 103 (2d Cir. 2000), abrogated on other ground, Schaffer
v. Weast, 546 U.S. 49 (2005). We note that Dr. Dorta testified that B.S. made “significant
progress at Maplebrook.”

                                               -6-
review a district court’s award of attorney’s fees for abuse of discretion . . . which we will find

only where the district court (1) based its ruling on an erroneous view of the law, (2) made a

clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be located

within the range of permissible decisions . . . .” Sheperd v. Goord, 662 F.3d 603, 605-06 (2d Cir.

2011) (internal citations and quotation marks omitted). KLSD appeals the decision of the district

court not to reduce the Plaintiffs’ award by some percentage based on Plaintiffs having attained

only partial success when compared to the total relief sought. In essence, KLSD argues,

Plaintiffs’ award should be cut because the Plaintiffs sought reimbursement of two years’ tuition

and received only one year’s worth.

       While the “degree of the plaintiff’s success in the litigation” is the most critical factor

“affecting the size of the fee to be awarded,” Kassim v. City of Schenectady, 415 F.3d 246, 253

(2d Cir. 2005), the Supreme Court has cautioned that “appellate courts must give substantial

deference to” determinations of attorneys’ fees “in light of ‘the district court’s superior

understanding of the litigation,’” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983)). In cases involving a “common core of facts or . . . related

legal theories” and what is not an “excellent result[]” for the plaintiff, an award without

reduction for the partial success may be excessive—or it may not. Hensley, 461 U.S. at 435; see

Kassim, 415 F.3d at 255-56 (discussing a district court’s discretion in reducing attorneys’ fees

based on partial success). Here, the district court provided a “clear explanation of its reasons,”

Hensley, 461 U.S. at 437, i.e., the overlap of the facts necessary to develop Plaintiffs’ successful

claim with the facts related to the claim the district court rejected. For both the 2006-2007 and

2007-2008 school years, Plaintiffs’ counsel had to develop facts to show B.S.’s educational

background and whether Maplebrook was an appropriate placement. The witnesses for KLSD

                                                 -7-
and the Plaintiffs were nearly the same for both years, and information related to the 2006-2007

IEP was important to determine the sufficiency of what KLSD recommended for the 2007-2008

year. Both claims involved an inter-related, if not single, legal theory—over the course of the

two school years, KLSD failed to provide BS with a FAPE as required by the IDEA. We

conclude, therefore, that the decision not to reduce the attorney fee award based on the Plaintiffs’

partial success was within the range of permissible decisions for the district court to have made.

       Moreover, contrary to the Plaintiffs’ argument on cross-appeal, the district court’s

decision to reduce the hourly billing rates of Plaintiffs’ counsel from the retainer rate or higher to

one that was in line with rates used in similar IDEA cases was also not an abuse of discretion.

Absent more compelling evidence of the reasonableness of the rates requested, the district court

acted well within its discretion by looking to other IDEA cases in determining an appropriate

rate for Mr. Hoffman and his associates.

       We have considered the parties’ remaining arguments and find them without merit. For

the foregoing reasons, the judgments of the district court are hereby AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




                                                 -8-
