Aranow v. District of Columbia, Civ. 91-2223 (D.D.C., Sept. 27, 1991).
This case closely parallels the case of Capiello v. District of Columbia, Civ. 91-2349, 779 F. Supp. 1, 1991 Dist. Lexis 17305 at *3 (D.D.C., Dec. 4, 1991). In Capiello, Judge Sporkin awarded Plaintiffs attorneys' fees and costs under 20 U.S.C. § 1415(e)(4)(B) because Plaintiffs "were forced to come to court to get a meaningful decision" due to the District's delay in providing an adequate educational placement for their children. Id. Here, Plaintiffs were forced to come to Court in order to obtain an educational placement in the first instance, and then to ensure that the children were able to attend those classes. For both of these reasons, Plaintiffs are "prevailing parties" entitled to attorneys' fees under the HCPA. Plaintiffs' counsel's fees and hours are adequately documented and the Defendants have offered no objection to either the number of hours or the prevailing rates.
The Defendants also contend that Plaintiffs are not entitled to reimbursement for miscellaneous charges and for expert fees. Defendants' argument with respect to miscellaneous charges must fail in light of West Virginia University Hospitals, Inc. v. Casey, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991). In West Virginia University Hospitals, the Supreme Court allowed reimbursement for "out-of-pocket" expenses incurred by attorneys and billed to the clients as part of the attorneys' fee. See 111 S. Ct. at 1141, n.3 (citing, Northcross v. Bd. of Ed. of Memphis City Schools, 611 F.2d 624, 639 (11th Cir. 1979)). This, under West Virginia Hospitals, supra, the limitations of 20 U.S.C. § 1920 do not apply with respect to those costs incurred by attorneys and included in their fees. Because the miscellaneous charges incurred by Plaintiffs' counsel in this case are reasonable and are adequately documented as components of the attorneys' fees, the Court shall allow for the full amount of reimbursement of the attorneys' miscellaneous expenses.
Plaintiffs are not entitled to reimbursement for the full $ 2,304.65 cost of experts services, however. In West Virginia Hospitals, supra, the Supreme Court interpreted the provisions of 42 U.S.C. § 1988
and held that expert services were not encompassed by the term "attorney's fees." 111 S. Ct. at 1146 ("In sum, we conclude that at the time this provision was enacted neither statutory nor judicial usage regarded the phrase 'attorney's fees' as encompassing fees for expert services."). The Court also held that fees for non-testifying experts were not otherwise compensable costs. In reaching this conclusion, the Court rejected a broad reading of what constitutes a reimbursable "cost":
We are aware of no authority to support the counter-intuitive assertion that "the term 'costs' has a different and broader meaning in fee-shifting statutes than it has in the cost statutes that apply to ordinary litigation." (citing West Virginia Hospitals at 1150).
West Virginia Hospitals, 111 S. Ct. at 1141, n.3. See also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987) (provisions of 28 U.S.C. §§ 1821 and 1920 define power to shift costs, absent explicit statutory authority to the contrary). Upon analyzing 28 U.S.C. § 1920, the Court concluded that:
None of the categories of expenses listed in § 1920 can reasonably read to include fees for services rendered by an expert employed by a party in a nontestimonial advisory capacity.
111 S. Ct. at 1141. However, under the West Virginia Hospitals standard, expert witnesses may receive compensation to the extent they have served as witnesses "in attendance at any Court of the United States. . . or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States." See 28 U.S.C. § 1821(a)(1). A court of the United States includes "any court created by Act of Congress." 28 U.S.C. § 1821 (a)(2). Expert witnesses qualifying under these provisions could then receive an attendance fee of $ 40 per day, a fee "for the time necessarily occupied in going to and from the place of attendance," and a travel allowance. 28 U.S.C. §§ 1821(b) and (c).
The provisions of the HCPA attorneys' fee provision, 20 U.S.C. § 1415, mirror the attorneys' fee provisions of 42 U.S.C. § 1988. See notes 1-2, supra. See also West Virginia Hospitals, 111 S. Ct. at 1141 (analogizing § 1988 provisions to the Title VII provisions codified at 42 U.S.C. § 2000e-5(k), which employs identical language). Because West Virginia Hospitals applies with equal force to this case, the Court must disallow the Plaintiffs' request for reimbursement of the costs of expert advisory services. However, Plaintiffs are eligible for limited compensation pursuant to 28 U.S.C. §§ 1920 and 1821 due to the expert witness' role in the due process hearing. The expert witness in this case participated in a due process hearing on September 6, 1991, and also paid $ 9.00 in parking fees that day. See Exhibit B, Plaintiff's Motion for Attorney's Fees, filed October 15, 1991 (time records of Laura Solomon, Ed.S.). Accordingly, the Court will reimburse Plaintiffs in the amount of $ 49.00; this amount represents one days' witness fee plus a travel allowance.
Accordingly, it is, by this Court, this day of January, 1992,
ORDERED that, pursuant to 20 U.S.C. § 1415, the Defendants shall pay, within 30 days of this Order, the Plaintiffs' reasonable costs and attorneys' fees in the amount of $ 6,156.97, representing $ 6,107.97 in attorneys' fees and costs and $ 49.00 for the expert's testimony at the due process hearing.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE