New Jersey lawyer focusing on special education law and employment law


Reversing a Fee Award

This is the third article about attorney’s fees and costs in special education matters. In the first article, I explained that a parent who prevails at a special education due process hearing may be entitled to reimbursement for attorney’s fees and costs. In the second article, I explained that a parent who litigates a frivolous lawsuit may be ordered to reimburse the school district for their attorney’s fees and costs.

There is one additional piece of information about attorney’s fees that parents should be aware of: even if a federal court orders that the parent reimburse attorney’s fees and costs to the school district, the fee award may be overturned on appeal.

As a general rule, in order to overturn the fee award, the parents must persuade the appellate court that the school district was not a “prevailing party.”

By way of example: In a recent case, a federal court in the District of Columbia awarded the school district attorney’s fees and costs in the amount of $1027.50 for the time spent in litigating a due process complaint initiated by the parent. On appeal in 2011, the appellate court determined that the school district was not a “prevailing party” and therefore reversed the lower court’s decision to award fees and costs. The case is District of Columbia v. Ijeabuonwu.

Likewise, in a decision also issued in 2011, the United States Circuit Court of Appeals for the Ninth Circuit overturned a lower court’s fee award of approximately $140,000 in attorney’s fees and costs against the parents. The case is R.P. v. Prescott Unified School District.

Stack of one hundred dollar bills

Now, it goes without saying that appealing a fee award can be challenging. No lawyer can guarantee that parents will win on appeal. It also goes without saying that appealing a fee award can be expensive. The fees associated with litigating the matter in an appellate court can cost as much (and perhaps more than) the actual fee award.

It is therefore critical to weigh your options of prevailing in the appellate court. Even if the parents lack funds, it may be worth the effort to reach out to special education attorneys to see if they are willing to take your case on a pro bono basis. Alternatively, some pro bono legal organizations may be interested in your case. Some of us love a real challenge.

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