on the significant issue of the case -- maintaining enrollment at Reich rather than moving to Mount Pleasant. Moreover, a personal aide continued as part of the program, and the District agreed to use an alternative teaching methodology.
Plaintiff also meets the second part of the Wheeler test, which may be met "where even though the litigation did not result in a favorable judgment, the pressure of the lawsuit was a material contributing factor in bringing about judicial relief." Id. Each of plaintiffs' requests had been refused by the school district prior to mediation. By retaining counsel, E.M. signalled her determination to exhaust all administrative and judicial avenues. The court finds it unlikely that the District would have yielded absent the threat of prolonged litigation. Accordingly, this court finds that E.M. is a "prevailing party" under the IDEA.
C. Amount of Fees to be Awarded
Plaintiffs seek $ 1485.00 for legal work performed during mediation, and an additional $ 2520.00 for legal work performed in litigating the fee issue. Plaintiffs also seek $ 19.60 in attorney costs. The court must determine a reasonable amount of fees and costs to be awarded.
Where a plaintiff achieves only partial success, the lodestar method of calculating attorneys fees may create a windfall for the attorney. Field, 769 F. Supp. at 1322. "However, where 'much of counsel's time . . . [was] devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis[,] . . . the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)).
Of all her requests, only the request for L.M. to attend a second, rather than first grade class, was not resolved in plaintiffs' favor. Because such a small portion of plaintiffs' case was unsuccessful, it would be impossible for the court to divide the hours expended on a claim-by-claim basis.
The court notes that 100% recovery of fees incurred during mediation, as in this case, will often be unavailable. The nature of a mediation proceeding requires attorneys to perform tasks which not inherently legal in nature, and thus not fully compensable.
After deducting 2.1 hours ($ 315.00) of work performed prior to the execution of the retainer agreement, the court will reduce the remaining amount ($ 1170.00) by 25% ($ 292.50) to account for the partial defeat of plaintiffs' claim, as well as the hybrid nature of mediation work. In total, the court will award $ 877.50 for work related to the mediation.
Fees incurred in enforcing the attorneys fees provision are also recoverable under the IDEA. See, e.g., Masotti, supra. The amount requested by plaintiffs is reasonable. Accordingly, the $ 2520.00 in fees for litigating this issue will be awarded in full.
In total, the court will award $ 3397.50 in attorneys fees and $ 19.60 in costs to plaintiffs.
In addition to attorney fees and costs, plaintiffs also seek to recover $ 500 in expert fees. In the settlement context, parents may recover fees for expert services under the IDEA. Aranow v. District of Columbia, 791 F. Supp. 318 (D.D.C. 1992); Fields, supra. But to be recoverable, the expert services must have been "necessary for the preparation of the parent['s] case in the action or proceeding." Fields, 769 F. Supp. at 1323 (quoting H.R. Conf. Rep. No. 687, U.S.Code Cong. & Admin. News 1798, 1808).
The court finds that while helpful, the use of the expert witness was not "necessary." As plaintiffs implied at oral argument, the expert witness was retained more with an eye toward preparing for a future administrative hearing. The expert never prepared a written report, nor did she ever appear or testify at the mediation.
Nonetheless, the expert report was not entirely valueless, in that plaintiffs ultimately prevailed on the significant issue of the case -- maintaining L.M.'s placement at Reich School. Accordingly, the court will order defendant to reimburse $ 100 of the expert fee.
This court will order the District to reimburse plaintiffs $ 3397.50 in attorneys' fees and $ 119.60 in attorney costs and expert fees.
STANLEY S. BROTMAN, UNITED STATES DISTRICT JUDGE
ORDER GRANTING MOTION FOR ATTORNEYS FEES/SUMMARY JUDGMENT AND DENYING CROSS-MOTION FOR SUMMARY JUDGMENT - April 28, 1994, Filed, Entered
This matter having come before the Court on the motion of plaintiffs for attorneys fees (i.e., motion for summary judgment),
and cross-motion of defendant, for summary judgment; and
Having considered the submissions of the parties;
For the reasons set forth in the Court's opinion of this date;
IT IS on this 28th day of April, 1994 hereby ORDERED that plaintiffs' motion for attorneys fees (i.e., summary judgment) is GRANTED, and defendant's cross motion for summary judgment is DENIED;
IT IS FURTHER ORDERED that defendant pay plaintiffs $ 3397.50 in attorneys' fees and $ 119.60 in attorney costs and expert fees, for a total of $ 3517.10.
STANLEY S. BROTMAN, UNITED STATES DISTRICT JUDGE