A. S., a minor child, by his parents, V.S. and G.S. v. Colts Neck Board of Education Appeal From the United States District Court for the…

The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals*
for the Sixth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4749
A. S., a minor child, by his parents, V.S. and G.S.,
Appellant
v.
COLTS NECK BOARD OF EDUCATION
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 03-cv-01477
District Judge: The Honorable Anne E. Thompson
Submitted Under Third Circuit LAR 34.1(a)
June 27, 2006
Before: BARRY, VAN ANTWERPEN and SILER, Circuit Judges*
(Opinion Filed: June 30, 2006 )
OPINION

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BARRY, Circuit Judge
Section 615(i)(3)(B) of the Individuals with Disability Education Act (“IDEA”)
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 a prevailing
party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B). A.S., by
and through his parents, G.S. and V.S. (collectively “plaintiffs”), appeal from an Order of
the District Court granting in part and denying in part their request for attorneys’ fees
pursuant to this provision. We will affirm.
I.
A.S. is a twelve-year-old child who suffers from autism and other mental
disabilities. He resides with his parents, G.S. and V.S., in Colts Neck, New Jersey. As a
result of his disabilities, A.S. is eligible for special education services under the IDEA.
The Colts Neck Board of Education (the “Board”) is responsible for ensuring that A.S.’s
educational needs are met.
During the 1999-2000 school year, A.S. attended a class for students with autism
at a Colts Neck school. In addition to this special class, the Board paid for A.S. to receive
15 hours per week of in-home Applied Behavioral Analysis (“ABA”) therapy beginning
in December 1999. In August 2000, a dispute erupted between A.S.’s parents and the
School Board over the appropriate amount of ABA therapy and speech/language therapy
A.S. should receive. Ultimately, in February 2001, the parties agreed that he would

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receive 12 hours of ABA therapy per week, and that the issue of speech/language therapy
would be submitted to an independent expert, whose recommendations would be binding
upon both parties. The expert’s report, which was issued on April 30, 2001, called for
three 30-minute speech/language therapy sessions per week, and recommended that A.S.
be provided with a computerized voice output device and 40-minutes per week of in-class
training on the device.
On May 15, 2001, the Board prepared a new Individualized Education Program
(“IEP”) for A.S., which called for a reduction in his ABA therapy to six hours per week.
Shortly thereafter, plaintiffs requested mediation and a due process hearing before an
Administrative Law Judge (“ALJ”), identifying four issues that they wished to address at
the hearing. First, they disagreed with the Board’s recommendation that A.S.’s ABA
therapy be reduced to six hours per week, and believed that an increase to twenty-one
hours per week was warranted. Second, they sought “compensatory services” for missed
ABA therapy that the Board failed to provide during the 2000-2001 school year. Third,
they claimed that the Board “unduly delayed” implementation of the expert’s
recommendations, and still had not provided A.S. with the recommended computerized
voice output device or training. Finally, they sought compensatory speech/language
services based on the Board’s failure to provide such services in a timely fashion
following the issuance of the expert’s report.
The hearing before the ALJ began on November 28, 2001, at which time the ALJ

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$70,208.81 in attorneys’ fees, $804.33 in costs, and $6,153.20 in expert fees.1
$13,636.45 in attorneys’ fees and the full amounts requested for costs and expert2
fees. The Supreme Court recently held that the IDEA does not permit prevailing parents
to recover expert fees. Arlington Central Sch. Dist. Bd. of Educ. v. Murphy, No. 05-18,
2006 WL 1725053 (June 26, 2006). Here, however, the Board has not challenged
plaintiffs’ recovery of expert fees, which was granted prior to the issuance of the Supreme
Court’s decision in Arlington. Accordingly, it has waived any argument on appeal as to
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conducted a conference to try to resolve some of the issues. As a result of this
conference, the parties entered into an agreement with respect to the computerized voice
output device. The Board agreed to provide the device, and plaintiffs agreed to protect
the device from damage, loss, or theft. A.S. received the device the next day. Because
the parties were unable to resolve the remaining three issues, the ALJ heard testimony on
those issues from January through August 2002, issuing a lengthy decision on February
28, 2003. With respect to ABA therapy, the ALJ determined that 12 hours per week was
appropriate. He denied the Board’s request for an order reducing the amount to six hours
per week, and denied plaintiffs’ request for an order increasing the hours to twenty-one
per week. The ALJ also dismissed plaintiffs’ claims for compensatory services and
therapy.
On April 4, 2003, plaintiffs filed a complaint seeking $77,166.34 for attorneys’
fees, costs, and expert fees pursuant to the IDEA, 20 U.S.C. § 1415(i)(3)(B). They1
thereafter filed a motion for summary judgment, and the Board filed a cross-motion for
summary judgment. On September 9, 2004, the District Court granted plaintiffs’ motion
in part, and awarded them $20,593.98. The Court denied the cross-motion. Plaintiffs’2

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the propriety of this award.
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timely appeal followed.
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. “This court reviews
the District Court’s denial of attorneys’ fees for abuse of discretion.” P. N. v. Clementon
Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006). In determining whether a district court
has abused its discretion, we review factual findings for clear error while exercising
plenary review over legal questions. See County of Morris v. Nationalist Movement, 273
F.3d 527, 535 (3d Cir. 2001); Rode v. Dellarciprete, 892 F.2d 1177, 1182-83 (3d Cir.
1990) (“We review the reasonableness of an award of attorney’s fees for an abuse of
discretion. An abuse of discretion can occur when no reasonable person would adopt the
district court’s view. Whether the district court applied the proper standards or
procedures is a question of law subject to plenary review. The district court’s factual
findings are reviewed under a clearly erroneous standard.”) (citation omitted).
III.
Typically, parties are responsible for their own attorneys’ fees. See Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975). As noted above, however,
the IDEA contains a specific provision authorizing an order for such fees as part of the
costs to the parents of a child with a disability who is the prevailing party. 20 U.S.C. §
1415(i)(3)(B). Here, the District Court found that plaintiffs qualified as a “prevailing

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Plaintiffs do not challenge the District Court’s finding that they did not prevail on the3
issue of the Board’s failure to provide the computerized voice output device.
Accordingly, they have waived this issue, and we will accept the District Court’s
conclusion on this question.
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party” because they prevailed—to some extent—on the issue of ABA therapy. The3
District Court explained that “[w]hile Plaintiffs did not ‘win’ their case, in that the ALJ
denied their request for an increase to twenty-one hours per week, they did ‘prevail’ to a
certain extent by thwarting Defendant’s attempt to reduce to six hours per week the
home-based ABA therapy provided to their child.” (App. at 8.) The District Court then
concluded that the attorneys expended their time in a reasonable and responsible manner,
and that the proposed hourly rates were reasonable. Nevertheless, the Court reduced
plaintiffs’ “lodestar” by 80% due to the fact that they prevailed on only one of their
claims and, even on that claim, were not completely successful.
The Supreme Court has held that when “a plaintiff has achieved only partial or
limited success, the product of hours reasonably expended on the litigation as a whole
times a reasonable hourly rate [i.e., the ‘lodestar’ amount] may be an excessive amount.”
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). In such cases, a reduction in the fee
award is warranted, and “[t]he district court may attempt to identify specific hours that
should be eliminated, or it may simply reduce the award to account for the limited
success.” Id. Here, the District Court explained that it was unable to identify specific
hours that should be eliminated because counsel’s fee certificate did not indicate the

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Plaintiffs also argue that the District Court misapplied its own formula. Because they4
prevailed on one out of four issues, their argument goes, their award should be reduced by
75% under a strict mathematical formula, not 80%. This is a spurious argument. As
explained above, the District Court held that plaintiffs were only partially successful on
the ABA therapy issue.
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number of hours spent working on any particular issue. Accordingly, it applied the
second option and “simply reduce[d] the award to account for the [plaintiff’s] limited
success.”
On appeal, plaintiffs challenge the extent of the reduction. They claim that the
District Court abused its discretion by impermissibly applying a rigid mathematical
formula to settle upon an 80% reduction, rather than taking into account the relative
importance of the various issues. Specifically, they argue that such a large reduction was4
unwarranted since the issue they prevailed on—ABA therapy hours—was the “primary
issue” in the litigation. We find this argument unpersuasive. There is no evidence that
the District Court applied a strict mathematical approach without considering other
relevant factors, such as the importance of the various issues. To the contrary, the District
Court clearly considered plaintiffs’ arguments regarding the relative weight of the issues,
and found that it could not say “that the issue of home-based ABA services was
paramount over all others.” (App. at 11.)
“A finding is ‘clearly erroneous’ when[,] although there is evidence to support it,
the reviewing [body] on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Concrete Pipe & Prods. of Cal., Inc. v. Constr.

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Nor was it an abuse of discretion for the District Court to exclude $1,687.50 from the5
award calculation on the ground that plaintiffs’ attorney failed to provide sufficient
evidence supporting its reasonableness. Although, as plaintiffs point out, computerized
billing records are not required under Local Rule 54.2, it was not unreasonable for the
District Court to require more than the attorney’s unsupported affidavit.
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Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In support of their argument that ABA
therapy hours were the “primary issue” in the case, plaintiffs point to the fact that they
agreed to forego litigation on two prior occasions when their concerns regarding ABA
therapy were satisfied. They also rely on the fact that only three of the Board’s 79
exhibits dealt directly with the compensatory speech/language services, while 49 of them
dealt directly with ABA therapy, and that the ALJ’s decision focused primarily on that
issue. Although this evidence is probative, it does not leave us “with the definite and firm
conviction that a mistake has been committed.” We thus conclude that the District Court
applied a proper procedure to determine the appropriate fee award, and that its factual
findings were not clearly erroneous.
IV.
Accordingly, the District Court’s conclusion that “$13,636.45 is an appropriate
award of attorney’s fees” in light of “the significance of the overall relief obtained by the
plaintiffs in relation to the hours reasonably expended on the litigation” was not an abuse
of its discretion. We will affirm the judgment of the District Court.5

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