United States District Court, Western District of Pennsylvania
June 11, 1999
CRAIG AND NANCY MURPHY IN THEIR OWN RIGHT AND AS PARENTS OF BETHANY MURPHY, PETITIONERS,
THE GIRARD SCHOOL DISTRICT, RESPONDENT.
The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioners, Craig and Nancy Murphy, filed a Petition for
Attorneys Fees*fn1 pursuant to the Individuals with Disabilities
Education Act, 20 U.S.C. § 1415(e)(4)(B), as amended,
20 U.S.C. § 1415(i)(3)(B), ("IDEA").*fn2 The Respondent, Girard School
District, opposes the Petition and argues that the Petitioners
are not a "prevailing party" under the Act, and that the Petition
is barred by the statute of limitations.
Bethany was a middle school student in the Girard School
District. In the Spring of 1995, the Petitioners requested that
she be evaluated to determine whether she needed special
education services. This evaluation was conducted by the
District, but the Petitioners disagreed with the findings and
requested the District to provide an independent evaluation. This
request was denied by the District. Thereafter, the District
initiated a due process hearing regarding Bethany's educational
placement. Petitioners also initiated a due process hearing to
determine Bethany's eligibility for special education services.
Prior to the hearing, Petitioners had Bethany evaluated by
various clinicians at different locations at their own expense.
The due process hearing was held over several sessions
beginning on February 20,
1996 and ending April 2, 1996. The hearing officer concluded that
Bethany was not exceptional and in need of special education, and
denied the Petitioners request for reimbursement of the expenses
incurred for the evaluations. The Petitioners filed exceptions to
the hearing officer's decision. The Special Education Due Process
Appeals Panel of the Commonwealth of Pennsylvania*fn4 held that
Bethany was not gifted but did have a learning disability. The
panel also held that Bethany did not need special education
services, provided the District continued to make appropriate
accommodations. The panel additionally ordered reimbursement for
the independent evaluations.
Both parties appealed the panel's decision to the Commonwealth
Court of Pennsylvania. By order dated May 19, 1997, the
Commonwealth Court held that Bethany did have a learning
disability, but no special education placement was warranted. The
court also held that although the criteria for reimbursement was
only partially applicable to the facts of the case, the most
"equitable resolution" would be to reimburse the Petitioners for
one of the evaluations.
On June 11, 1999, the Petitioners filed their Petition for
Attorneys Fees in this Court, seeking an award of attorneys fees
in the amount of $20,074.05, and costs in the amount of $256.96.
A. Statute of limitations
Prior to reaching the merits of the claim for fees, we must
determine whether the action is barred by the statute of
limitations. IDEA does not establish a statute of limitations for
an action seeking either judicial review of an administrative
proceeding or for an application seeking attorneys' fees.
Zipperer v. School Board of Seminole County, Florida,
111 F.3d 847 (11th Cir. 1997). "[W]hen Congress has failed to provide a
statute of limitations for a federal cause of action, a court
`borrows' or `absorbs' the local time limitation most analogous
to the case at hand." Lampf, Pleva, Lipkind, Prupis & Petigrow
v. Gilbertson, 501 U.S. 350, 355, 111 S.Ct. 2773, 115 L.Ed.2d
321 (1991) (citations omitted).
The issue of which statute of limitations should be applied to
an action for attorneys fees pursuant to IDEA has not been
decided by the Third Circuit. The Third Circuit has however,
examined the limitations issue in the context of an action
seeking review of an administrative decision pursuant to
20 U.S.C. § 1415(e)(2), as amended, 20 U.S.C. § 1415(i)(2)(A).*fn5
In Tokarcik v. Forest Hills School District, 665 F.2d 443 (3rd
Cir. 1981), cert. denied sub nom., Scanlon v. Tokarcik,
458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982), the parents
instituted an action to obtain catheterization services for their
daughter ninety days after the state agency
rendered its decision on the merits. The main issue on appeal was
whether the action was timely filed. In rejecting the thirty day
limitations period that governs appeals from administrative
decisions, the court found persuasive the reasoning set forth in
Monahan v. State of Nebraska, 491 F. Supp. 1074 (D.Neb. 1980),
aff'd in part, rev'd and remanded in part on other grounds,
645 F.2d 592 (8th Cir. 1981). Specifically, the court recognized that
the standard of judicial review is more akin to a de novo review
as opposed to a limited examination of the administrative record.
As a result, different time considerations, accommodating the
needs of the parties to investigate and prepare, govern the
limitations period for an action brought under the statute.
Tokarcik, 665 F.2d at 451. Secondly, a limited appeals period
would restrict the range of issues a reviewing court could
consider and would effectively dilute the independent position of
the district courts. Id. Finally, the thirty day limitations
period would frustrate the statutory policy of cooperative
parental and school involvement in placement determinations.
Tokarcik, 665 F.2d at 452. The court reasoned that the thirty
day limitations period is simply "incompatible" with too many
objectives of the Act. Id. Because the parents action was
instituted ninety days after the agency decision, the court did
not decide whether Pennsylvania's two-year or six-year statute
should apply. In dicta however, the court stated "[f]or purposes
of cases brought in district courts situated in Pennsylvania it
would appear that the two-year state statute of limitations, . .
. is an appropriate referent." Tokarcik, 665 F.2d at 454.
The Third Circuit has also addressed the limitations issue in a
different context under IDEA in the case of Bernardsville Board
of Education v. J.H., 42 F.3d 149 (3rd Cir. 1994). In
Bernardsville, the issue was whether the parents timely
requested a due process hearing in order to recover reimbursement
for tuition and expenses for J.H.'s private education. The court
adopted a "reasonable time" standard for initiation of review
proceedings and stated "[w]e think more that two years, indeed,
more than one year, without mitigating excuse, is an unreasonable
delay." Bernardsville, 42 F.3d at 158. The court further
"[G]iven the Act's lack of specificity on the
question of timeliness and the nature of the issue
here, a balancing of the equities is unavoidable. We
resort to the standard of reasonableness under the
circumstances, and a consideration of mitigating
circumstances for any delay in the initiation of
review proceedings which might otherwise be deemed
Bernardsville, 42 F.3d at 158, n. 14.
At this point, a more in-depth analysis of the district court's
opinion in Bernardsville is appropriate. In Bernardsville
Board of Education v. J.H., 817 F. Supp. 14 (D.N.J. 1993), aff'd
in part, vacated in part, 42 F.3d 149 (3rd Cir. 1994), two
issues were before the district court: 1) the appropriate time
period in which to request a due process hearing; and 2) the
appropriate limitations period for filing an action in court
seeking review of an administrative decision pursuant to
20 U.S.C. § 1415(e)(2). The Board moved for summary judgment on the
first issue, that being whether the parents timely requested a
due process hearing, and in denying the motion, the court
declined to impose the 90-day time limit for disputing an
individualized educational program (IEP) to a request for a due
process hearing. Bernardsville, 817 F. Supp. at 19. As to the
second issue, the parents moved for summary judgment on the
ground that the Board's action filed in federal court seeking
review of an administrative decision
under 20 U.S.C. § 1415(e)(2) was untimely. Following the opinion
in Tokarcik v. Forest Hills School District, 665 F.2d 443 (3rd
Cir. 1981), cert. denied sub nom., Scanlon v. Tokarcik,
458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982), the court
denied the parents motion and held that the two-year or six-year
limitations period applied. Bernardsville, 817 F. Supp. at 18.
Once the district court ruled on the merits, the Board then
appealed the matter to the Third Circuit. Among other issues, the
Board appealed the district court's denial of its motion for
summary judgment. Bernardsville, 42 F.3d at 156. Apparently,
the parents did not cross-appeal the denial of their motion for
summary judgment on the issue relating to the statute of
limitations for filing an action seeking review of an
administrative decision under 20 U.S.C. § 1415(e)(2). Therefore,
the only limitations issue before the Third Circuit on appeal
was whether the parents were timely in requesting a due process
hearing. As to this issue, the court adopted the "reasonable
time" standard. Bernardsville, 42 F.3d at 158.
The court in Bernardsville therefore did not rule on the
limitations issue as it related to filing an action under
20 U.S.C. § 1415(e)(2), and only addressed limitations in the
context of requesting a due process hearing. Thus the Third
Circuit's opinions in Bernardsville and Tokarcik addressed
two different issues. However, neither opinion addressed the
appropriate statute of limitations to be applied in the context
of an application for attorneys' fees.
One Pennsylvania district court since Tokarcik and
Bernardsville has addressed the limitations issue in the
context of an application for attorneys fees, but did not decide
which period applied. See Ivanlee J. v. Wilson Area School
District, No. 97-683, 1997 WL 164272 (E.D.Pa. April 3, 1997).
Citing Tokarcik, the court noted that the proper limitations
period "is at least two years and may be as long as six years."
Ivanlee, 1997 WL 164272 at *2. The court did not discuss
whether the reasoning set forth in Tokarcik is applicable in
the context of an application for attorneys' fees.
A New Jersey district court has addressed the issue and
examined both the Tokarcik and Bernardsville opinions. In
B.K v. Toms River Board of Education, 998 F. Supp. 462 (D.N.J.
1998), the parent argued that the court should apply the
Tokarcik decision to the fee application and find that it is
governed by the New Jersey two-year statute of limitations. The
Board requested the court apply the 45-day limitations period
applicable to New Jersey administrative appeals. In analyzing
Tokarcik, the court found it inapposite, since Tokarcik only
addressed the applicable statute of limitations in the context of
an action brought pursuant to § 1415(e)(2). B.K., 998 F. Supp.
at 470. Turning to other jurisdictions for guidance, the court
was persuaded by the reasoning of the Eleventh Circuit in
Zipperer v. School Board of Seminole County, 111 F.3d 847 (11th
Cir. 1997) in adopting a longer limitations period in the context
of a fee application. The Zipperer court found that the
adoption of a longer statute of limitations in a fee context was
not inconsistent with the policies of IDEA. The court reasoned
that the resolution of claims for attorneys' fees is less urgent
and is more likely to be resolved by the attorneys' own interest
in prompt payment rather than by a short limitations period.
Zipperer, 111 F.3d at 851. The B.K. court reasoned that a
longer limitations period would allow enough time for the parties
to attempt to agree on the issue, and would encourage parental
involvement. B.K. 998 F. Supp. at 471.
The court then examined the Third Circuit's opinion in
Bernardsville. The court recognized that the Third Circuit
reached its conclusion concerning the reasonableness of the time
period because of the "unique considerations" presented by a
claim for retroactive reimbursement based upon the
inappropriateness of the school district's proposed IEP. B.K.,
998 F. Supp. at 472. The court adopted the Third Circuit's
balancing of the equities approach, and determined that the
parent's application for attorneys' fees was made within a
reasonable time since it was made within two years of the entry
of the settlement between the parties. B.K., 998 F. Supp. at
While we agree with the reasoning in B.K. favoring a longer
limitations period, we are of the opinion that Tokarcik
provides greater guidance in the context of a fee application
since Tokarcik addressed the limitations issue in the context
of a post-administrative action, while Bernardsville, addressed
the issue in the context of the appropriate time frame in which
to initiate the administrative process prior to filing a lawsuit.
Given our conclusion that Tokarcik is more closely aligned to
the facts of this case, we do not believe it is necessary to
engage in a "balancing of the equities" approach, since
Tokarcik did not suggest such approach was necessary in a
The court in Tokarcik did not specifically decide the
appropriate limitations period, but strongly suggested it would
be at least two years. Tokarcik, 665 F.2d at 454. We too,
however, need not decide this issue in order to dispose of the
instant Petition. Following the lead of Tokarcik, we conclude
only that the limitations period is at least two years. The
Commonwealth Court order is dated May 19, 1997 and became final
on June 18, 1997. See McCartney C. v. Herrin Community Unit
School District No.4, 21 F.3d 173, 175 (7th Cir. 1994) (decision
becomes final upon exhaustion of all judicial remedies and suit
for fees would be premature until then).*fn6 The Petitioners
thus had until June 18, 1999 in which to file the instant action.
Since the Petition was filed on June 11, 1999, we are of the
opinion that the Petition was timely filed.
B. Petitioners eligibility for attorneys' fees
Turning to the substance of the Petition, we must decide
whether the Petitioners are entitled to an award of attorneys'
fees pursuant to IDEA. The Act provides that a court in its
discretion may award attorneys' fees as part of costs to the
parents of a child who is a "prevailing party."
20 U.S.C. § 1415(e)(4)(B), as amended, 20 U.S.C. § 1415(i)(3)(B). The issue
is whether the Petitioners are a prevailing party.
In order to be a prevailing party, the party must succeed on
any significant issue in litigation which achieves some of the
benefit the party sought in bringing suit. Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983).*fn7 The Third Circuit has set forth the standards to be
applied in determining whether a party is "prevailing" in an IDEA
case. Wheeler v. Towanda Area School District,
950 F.2d 128 (3rd Cir. 1991). Pursuant to Wheeler, the court
must determine: 1) whether plaintiff's achieved relief; and 2)
whether there is a causal connection between the litigation and
relief from the defendant. Wheeler, 950 F.2d at 131.
Whether the plaintiff achieved relief is determined by a
commonsense comparison between the relief sought and the relief
obtained. Institutionalized Juveniles v. Secretary of Public
Welfare, 758 F.2d 897, 910 (3rd Cir. 1985). This is a liberal
standard; as long as a plaintiff achieves some of the benefit
sought, even though he does not ultimately succeed in securing a
favorable judgment, a plaintiff can be considered a prevailing
party for purposes of a fee award. NAACP v. Wilmington Medical
Center, Inc., 689 F.2d 1161, 1166 (3rd Cir. 1982), cert.
denied, 460 U.S. 1052, 103 S.Ct. 1499, 75 L.Ed.2d 930 (1983).
Applying this standard, the following synopsis is a comparison of
the relief sought by the Petitioners at each phase of the
litigation against the relief actually obtained:
1. Hearing Officer Report, Exhibit A
a. The hearing officer categorized the issues as 1)
whether Bethany is exceptional and needs special
education, and 2) should the parents be
reimbursed for the independent examinations.
b. The parents argued that Bethany 1) was both
gifted and learning disabled, and 2) the school
evaluation was incomplete because of the lack of
current psychological evaluations.
c. The hearing officer held that 1) Bethany was not
exceptional and in need of special education, and
2) reimbursement for the independent evaluations
2. Appeals Panel Decision, Exhibit B
a. The panel stated that the two issues before the
hearing officer were 1) whether Bethany needed
special education services, and 2) whether the
parents were entitled to reimbursement for the
b. The panel stated "simply put, this case is about
whether or not Bethany needs special education
services in order to benefit from her educational
c. The panel held:
1. Bethany was not gifted;
2. Bethany did have a learning disability but
did not need special education services provided
the District continued to make appropriate
3. ordered reimbursement for the independent
3. Commonwealth Court Opinion, Exhibit C
a. The parents appealed the panel finding of not
gifted and no special education services needed
at this time.
b. The district appealed the panel finding that
Bethany had a learning disability and the order
for reimbursement. The district argued that it
should only have to pay for one evaluation, if
c. The Court held:
1. Bethany did have a learning disability, but no
special education placement was warranted; and
2. The criteria for reimbursement was only
partially applicable; the evaluations supported
the parents contention that Bethany was learning
disabled, but were inconclusive as to
recommending special education services. The
Court felt "the most equitable resolution" would
to reimburse the parents for one of the
In summary, the Petitioners sought to compel the Respondent to
provide special education services to Bethany, and to provide
reimbursement for the five independent evaluations. The
Petitioners prevailed on having Bethany labeled as learning
disabled, but did not prevail on the special education services
issue as a whole. Even though the Petitioners sought the learning
disabled diagnosis, the ultimate goal of such a finding was to
compel Respondent to provide special education services. This
objective was not achieved. The Petitioners did however, achieve
some relief on the second issue-reimbursement for one of the
independent evaluations. Since they achieved some relief, we will
examine the second prong of Wheeler.
The second part of the Wheeler analysis is whether there is a
causal connection between the litigation and the relief from the
defendant. Wheeler, 950 F.2d at 131. This causation prong may
be established two ways:
1. by obtaining a judgment, consent decree or a
settlement that changes the relations of the
parties such that the defendant is legally
compelled to grant relief; or
2. through a "catalyst" theory, where even though
litigation did not result in a favorable judgment,
the pressure of the lawsuit was a material
contributing factor in bringing about extrajudicial
Baumgartner v. Harrisburg Housing Authority, 21 F.3d 541
(3rd Cir. 1994).
As to the special education issue, the Petitioners argue that
the Commonwealth Court's decision was the catalyst of the
Northwest Tri County Intermediate Unit declaring Bethany needed
special accommodations in the classroom. As indicated earlier,
the Petitioners enrolled Bethany in a private school during the
midst of the litigation. While this private school may have
provided Bethany with special education services, the "pressure
of the lawsuit" did not cause the Respondent to do anything
differently regarding Bethany's education. In other words, no
special education services were provided by Respondent as a
result of the lawsuit. The Third Circuit has stated in dicta that
the argument that a party should not be held accountable for the
benefits given to the opposing party by a third person is not
unreasonable and may, in fact preclude recovery of attorneys' fee
in some contexts. Institutionalized Juveniles v. Secretary of
Public Welfare, 758 F.2d 897, 917 (3rd Cir. 1985). Therefore, we
are of the opinion that the "catalyst" theory is not applicable
to the facts, and the Petitioners are not a prevailing party on
We reach a different conclusion as to the reimbursement issue.
The Petitioners sought reimbursement for five evaluations. They
ultimately received reimbursement for only one evaluation.
Nonetheless, such award did change the relationship of the
parties in that the Respondent is legally compelled to reimburse
the Petitioners for the evaluation. Although the Petitioners did
not receive all the relief they were seeking, they did receive
some of the benefit they sought in the lawsuit. We believe
therefore that the Petitioners prevailed on this minor issue and
are entitled to prevailing party status.
C. Amount of attorneys' fees
We now turn our attention to the determination of the
appropriate amount to be awarded to the Petitioners. Respondent
suggests a substantial downward adjustment is necessary due to
the Petitioner's limited success on the merits. The starting
point for determining the amount
is the calculation of the "lodestar" — the figure obtained by
multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate. Hensley v. Eckerhart,
461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Public
Interest Research Group of New Jersey, Inc. v. Windall,
51 F.3d 1179, 1185 (3rd Cir. 1995). The parties have stipulated that the
appropriate hourly rate for Attorney Pendleton is $100.00 per
hour, and the Respondent has no objection to this hourly rate.
The following is our calculation of the basic lodestar amount:
Name Position Hours Rate Amount
T.A. Pendleton Attorney 246.70 $100.00 $24,670.00
E.W. Goebel, Jr. Attorney 2.3 $150.00 $322.00
J. Piccone Sum. Clerk 3.5 $60.00 $210.00
R. Gross Sum. Clerk 17.4 $60.00 $1,044.00
B. Martin Paralegal 6.2 $60.00 $372.00
J. Seaman Paralegal .9 $60.00 $54.00
M.T. Craig Paralegal 6.7 $60.00 $402.00
Total 283.70 $27,074.00
Having determined the basic lodestar amount does not end our
inquiry. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. We may look
to various factors to adjust the lodestar upward or downward.
Id. The Hensley decision described how a court might adjust
the fee lodestar based upon "results obtained." Id. Hensley
considered this factor critical where "a plaintiff is deemed
`prevailing' even though he succeeded on only some of his claims
for relief." Id. As explained earlier in our opinion, the
Petitioners did not prevail on the special education services
issue. They did however, achieve limited success on the
reimbursement claim. We believe therefore that the lodestar
figure should be adjusted downward to reflect a more reasonable
amount in light of the results obtained.*fn8
Two methods of fee reduction were established by the court. We
may attempt to eliminate specific hours spent on the unsuccessful
claim or reduce the amount to account for the limited success.
Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933. Although we
consider the special education issue and the reimbursement issue
to be distinct claims, it is difficult if not impossible to
segregate the time spent on each. For example, legal research
relative to the reimbursement issue is lumped together with other
time entries relating to subpoenas and conferences regarding
witness lists. Additionally, there are a number of entries that
relate to document preparation, hearing preparation and actual
attendance at the various proceedings throughout the litigation.
We are unable to distinguish how much time was devoted to the
reimbursement issue. Simply put,
we are unable to segregate with any reliable certainty the hours
spent on the successful claim versus the unsuccessful claim.
Consequently, the second method of reduction — reducing the
amount of the award to account for the limited success — is the
more appropriate method based upon the facts presented.
Our focus in reducing the amount is what is reasonable in
relation to the results obtained. Hensley, 461 U.S. at 440, 103
S.Ct. 1933; Institutionalized Juveniles v. Secretary of Public
Welfare, 758 F.2d 897, 919 (3rd Cir. 1985). We reiterate our
view that the relief sought and the relief obtained demonstrate
that the Petitioners achieved very limited success. An
examination of the administrative opinions, the Commonwealth
Court opinion and the time entries recorded on the fee statement
reveal that the primary objective of the Petitioners, and
therefore the most significant legal effort, was to secure
special education services for their daughter. Further, with
respect to reimbursement, the Petitioners did not completely
prevail. They sought reimbursement for five evaluations and
received reimbursement for only one in the amount of $760.00.
Under the circumstances, a substantial downward adjustment of the
lodestar figure is warranted. Accordingly, will reduce the
lodestar figure of $27,074.00 by 85%, yielding a figure of
$4,061.10. We are of the opinion that this amount represents a
reasonable amount in light of the limited success of the
The Petitioners have also requested that they be awarded costs
in the amount of $256.96. Since we have held that the Petitioners
are a "prevailing party" for the purpose of a fee award, we also
consider them to be prevailing for the purpose of an award of
costs. Institutionalized Juveniles, 758 F.2d at 926. Therefore,
Petitioners shall be awarded their costs.
As an initial matter, we have determined that the Petitioner's
Petition for attorneys' fees pursuant to
20 U.S.C. § 1415(e)(4)(B), as amended, 20 U.S.C. § 1415(i)(3)(B) was timely
filed. We have also determined that the Petitioner's are a
"prevailing party" under the Act and are entitled to attorneys'
fees. However, since the Petitioners achieved limited success, we
have adjusted the award downward to reflect what is reasonable in
relation to the results obtained.
An appropriate order follows.*fn9
AND NOW, this — day of March, 2000, for the reasons set forth
in the accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that Petitioner's Petition for Attorneys'
Fees [Doc. No. 1] is GRANTED, and Petitioners are awarded
attorneys' fees and costs in the total amount of $4,318.06.*fn10
JUDGMENT is hereby entered in favor of Petitioners, Craig and