Behavior Research Institute, Inc. v. Ambach

Appeals from two judgments of the Supreme Court (Brown, J.), entered October 1, 1987 in Albany County, which, in proceedings pursuant to CPLR article 78, granted petitioners’ motions for counsel fees.

The fee awards at issue arose out of CPLR article 78 proceedings brought in Supreme Court, Albany County, on behalf of two severely handicapped children by their parents who sought to place the children at Behavior Research Institute, Inc. (hereinafter BRI), an out-of-State facility for the severely handicapped.^[1] In separate decisions, Supreme Court found that both children were inappropriately placed, the only appropriate facility was BRI and, although petitioners had not exhausted their administrative remedies, to do so would be futile given respondent Commissioner of Education’s refusal to implement the recommendation of each child’s Committee on the Handicapped,^[2] both of which called for placement with BRI. Supreme Court refused to require "the futile act of appealing the determination of the State respondents to said respondents”. Following the failure of respondents to perfect an appeal from those judgments, petitioners moved for orders granting counsel fees pursuant to the Handicapped Children’s Protection Act (hereinafter HCPA) (see, 20 USC § 1415 [e] [4] [B]-[G]). Both children’s parents were represented by the same law firm and lead attorney. Supreme Court granted the mo

Although the question of whether petitioners were required to exhaust their administrative remedies has already been finally resolved, given respondents’ election not to appeal the earlier judgments, respondents nevertheless contend that petitioners’ decision to forego the procedures set forth in EHA, including an impartial review conducted by the State educational agency ( 20 USC § 1415 [c]), precludes an award of counsel fees under HCPA, which is limited to actions or proceedings brought under EHA (see, 20 USC § 1415 [e] [4] [B]). Apropos of this argument, it suffices to note that the United States Supreme Court has categorically declared that parents seeking judicial review under EHA "may by-pass the administrative process where exhaustion would be futile or inadequate” (Honig v Doe, 484 US 305 , —, 108 S Ct 592 , 606). Clearly then, judicial intervention resorted to prior to the exhaustion of administrative review provided for in EHA can equate to judicial review within the meaning of EHA despite 20 USC § 1415 (e) (2), and counsel fees may be awarded to the successful parent in such event.

The second issue presented by this appeal relates to the appropriateness of the amount of the fee awards, which were made to Albany attorneys on a descending scale beginning with $120 per hour for the most experienced attorney. As with calculating counsel fees in other matters, the starting point is the number of hours reasonably expended multiplied by a reasonable hourly rate (see, Hensley v Eckerhart, 461 US 424 , 433). Under HCPA, however, bonuses and enhancements are prohibited ( 20 USC § 1415 [e] [4] [C]).

Respondents maintain that petitioners’ attorneys have submitted insufficient evidence from which to determine the number of hours reasonably expended in these matters. In addressing this issue, a helpful paradigm is the policy adopted in 1983 by the Second Circuit of the United States Court of Appeals mandating that counsel fee applications be docu