Before Judges Stern, Collester and Fall.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically on October 29, 2001
On appeal from the promulgation of administrative regulations by the State Board of Education and the Commissioner of the Department of Education.
On this motion, appellants seek counsel fees incident to two appeals from final administrative rule making which resulted in the regulations governing the education of children with disabilities. See Baer v. Klagholz, 339 N.J. Super. 168, 181-84 (App. Div.), certif. denied, __ N.J. __ (2001); N.J.A.C. 6A:14- 1.1 to 10.1. See also R. 2:11-4(a); R. 4:42-9(a)(8) (permitting counsel fees "where counsel fees are permitted by statute"). The motion has been fully briefed and was argued telephonically. We conclude that counsel fees are available under the governing statute to a "prevailing party" in a regulatory action such as this case; that the United States Supreme Court's recent decision in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), applies to preclude counsel fees for the fifteen amendments the State Board made without a court judgment or consent order; and that appellants may recover as the "prevailing party," because they prevailed in their attack upon eight of the sixty regulations they challenged. Baer v. Klagholz, supra, 339, N.J. Super. at 194-96, 227-28.
Appellants' challenge was premised on the federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.A. § 1400 to 1487, see Baer v. Klagholz, supra, at 190, which provides:
In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party. [20 U.S.C.A. § 1415(i)(3)(B)].
Although neither party nor the court can find any case directly on point, we conclude that the statute applies to a regulatory challenge as well as an action seeking specific relief under the Act.
There is no dispute parents who bring suit on behalf of their children can be "prevailing parties" eligible to recover attorney's fees. See, e.g., John T. v. Iowa Dep't of Educ., 258 F.3d 860, 863-64 (8th Cir. 2001); Lucht v. Molalla River School Dist., 225 F.3d 1023, 1026 (9th Cir. 2000); see also 20 U.S.C.A. § 1415(i)(3)(B),(E) (referring to parents as the recipients of the award). We believe that a successful challenge to the regulations can also be a basis for the award of fees since the statute was designed to protect children covered by IDEA and § 1415(i)(3)(B) relates to actions under § 1415. See J.H.R. v. Bd. of Educ. of Tp. of E. Brunswick, 308 N.J. Super. 100, 111 (App. Div. 1998); see also Lucht, supra, 225 F.3d at 1027; Beth V. v. Carroll, 87 F.3d 80, 88 (3d Cir. 1996) (decided under earlier version of § 1415). Section 1415(i)(3)(B) authorizes fee awards "[i]n any action or proceeding" brought under § 1415, and appellants' challenge was brought under that section, which requires participating states to "establish and maintain procedures in accordance with [that] section." See 20 U.S.C.A. § 1415(a).
Appellants claim that Buckhannon does not apply because the IDEA promotes settlements, the "catalyst theory" applies, and a contrary ruling would render 20 U.S.C.A. § 1415(I)(3) meaning- less. We agree with respondents, however, that Buckhannon applies to this federal statute which gives rise to this application. Accordingly, we make no award for time spent that ultimately resulted in the Board making the fifteen amendments to the regulations without court order or consent judgment.
Buckhannon held "that the 'catalyst theory' is not a permissible basis for the award of attorney's fees under the [Fair Housing Amendments Act of 1988 (FHAA)], 42 U.S.C.A. § 3613(c)(2), and [the Americans with Disabilities Act (ADA)], 42 U.S.C.A. § 12205." 532 U.S. at ____, 121 S. Ct. at 1843, 149 L. Ed. 2d at 866-67. The Court concluded that counsel fees may be awarded only on the basis of judgments on the merits and settlement agreements enforced through consent decrees. 532 U.S. at ___, 121 S. Ct. at 1840, 149 L. Ed. 2d at 862-63; see also J.S. v. Ramapo Cent. Sch. Dist., 165 F. Supp. 2d 570, 574-77 (S.D.N.Y. 2001) (settlement agreement absent a consent decree could not confer "prevailing party" status warranting the award of fees and expenses under the IDEA - applying Buckhannon retroactively); Jose Luis R. v. Joliet Tp. H.S. Dist. 204, No. 01-C-4798, 2001 WL 1000734, at *1 (N.D. Ill. Aug. 29, 2001) (an IDEA case in which the court found "no language in Buckhannon suggesting the opinion is limited to ADA and FHAA cases" as opposed to fee-shifting statutes in general, but concluding counsel fees were appropriate because the mediation agreement was like a settlement agreement enforced through a consent decree). Compare, e.g., Singer v. State, 95 N.J. 487, 492-95 (1984) (considering 42 U.S.C.A. § 1988), cert. denied, 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984).
We award counsel fees to appellants as the "prevailing party" for the challenge to the eight regulations on which they prevailed before this court. In doing so, we must also consider the time and expenses devoted to both the successful and unsuccessful claims. We do not read Buckhannon as changing the criteria for an award which can be made when the claimant is partially successful. See, e.g., John T., supra, 258 F. 2d at 864-67.
In Y.O. v. New Britain Bd. of Educ., 1 F. Supp. 2d 133, 138 (D. Conn. 1998), the court summarized:
The legal standard for determining "prevailing party" status in an attorney fee action under the IDEA is the same as that governing the award of attorney fees in civil rights litigation pursuant to 42 U.S.C. § 1988. See Angela L. v. Pasadena Indep. School District, 918 F.2d 1188, 1193 (5th Cir. 1990) (citing the legislative history of IDEA); Barbara R. v. Tirozzi, 665 F. Supp. 141, 145 (D.Conn. 1987). Under this standard, a party may be deemed "prevailing" if the party succeeds on "any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); accord Heldman v. Sobol, 846 F.Supp. 285, 288 (S.D.N.Y. 1994). The Supreme Court has explained that, in making this determination, a court must consider whether the plaintiff (1) obtained relief on a significant claim in litigation, (2) that effected a ...