360 F.3d 604 | 6th Cir. | 2004
RONALD LEE GILMAN, Circuit Judge. Anika Wikol is S CHOOLS B OARD OF
(cid:45) a child with autism who is eligible for special education and E DUCATION , (cid:45) related services under the Individuals with Disabilities Act Defendant-Appellee/ (cid:45) (IDEA), 20 U.S.C. §§ 1400-1487. She resides within the Cross-Appellant. (cid:45) Birmingham Public School District in Birmingham, (cid:45) Michigan. At issue in this case are her parents’ attempts to (cid:78) secure reimbursement from Birmingham for Anika’s educational program for the 1998-99 and 1999-2000
Appeal from the United States District Court academic years. for the Eastern District of Michigan at Ann Arbor. No. 00-60265—Marianne O. Battani, District Judge. The Wikols have appealed what they regard as an inadequate award by the jury. They also seek to recover Argued: February 5, 2004 attorney fees, costs, and prejudgment interest, all of which the district court denied. In its cross-appeal, Birmingham
Decided and Filed: March 10, 2004 challenges the timeliness of the Wikols’ appeal with respect to all but their claim for attorney fees and costs. For the
Before: NELSON, GILMAN, and ROGERS, Circuit reasons set forth below, we agree that the Wikols’ appeal was Judges. untimely except for these latter items. We accordingly dismiss the bulk of the Wikols’ claims for lack of appellate jurisdiction. With regard to their claim for attorney fees and
1 Nos. 02-1798/2047 Wikol v. Birmingham 3 4 Wikol v. Birmingham Nos. 02-1798/2047 Public Schools Public Schools costs, we vacate the decision of the district court denying such Birmingham would pay “one-half of the costs of any such relief and remand for reconsideration. program.” Despite the settlement for these prior years,
disputes continued between the Wikols and Birmingham
I. BACKGROUND
regarding reimbursement for the Lovaas program in the 1998- 99 and 1999-2000 school years.
When Anika was approximately two-and-a-half years old, her parents enrolled her in the preprimary impaired program In December of 1999, the Wikols again requested a due in the Birmingham public schools. The Wikols soon became process hearing to resolve the outstanding reimbursement dissatisfied with the program. They consequently removed issues. A local hearing officer was appointed in early 2000, Anika from the public school system and established a but Birmingham objected to the hearing officer’s jurisdiction full-time home-based alternative program recommended by and requested that the matter be dismissed. Birmingham and the Lovaas Institute, a non-profit organization that specializes the Wikols ultimately stipulated to the dismissal of the in educating children with autism. After approximately three
Wikols’ request for a due process hearing regarding the two years in the Lovaas home-based program, the Wikols decided school years in question, opting instead to “seek judicial to partially transition Anika back into the Birmingham public resolution of the issues.” schools.
The Wikols brought suit in May of 2000 against An “individualized education program team” comprised of Birmingham in the United States District Court for the the Wikols and members of Anika’s school thus convened, Eastern District of Michigan. Eight months later, the Wikols pursuant to the IDEA, to develop an individualized education moved for summary judgment, arguing that they were entitled program (IEP) for Anika. At the meeting, Birmingham and to reimbursement from Birmingham for Anika’s home-based the Wikols could not agree upon Anika’s educational program Lovaas program. The district court granted the Wikols’ because, according to the Wikols, Birmingham refused to
motion in part with regard to the 1998-99 school year. It (1) provide Anika with an IEP that would support her home- concluded that, pursuant to the settlement agreement, based education, and (2) reimburse the Wikols for their past Birmingham owed the Wikols fifty percent of the “costs” of expenses in providing Anika with the Lovaas program. the Lovaas program, but that a genuine issue of material fact existed as to what constituted those costs. With regard to the This impasse led the Wikols to request a due process 1999-2000 school year, the district court denied the Wikols’ hearing pursuant to 20 U.S.C. § 1415(f). The due process motion for summary judgment in its entirety. hearing did not occur, however, because the parties reached a settlement. Under the settlement agreement, dated April 8, The case then proceeded to trial, at the end of which the 1998, Birmingham agreed to pay the Wikols $115,000 “as jury awarded the Wikols approximately $5,000 for costs reimbursement for necessary educational services actually incurred in providing Anika’s home-based program for the incurred or reasonably anticipated to be incurred during the
1998-99 school year. As for the 1999-2000 academic year, 1994-95 through 1997-98 school years.” The agreement the jury determined that Birmingham’s school-based further provided that Birmingham and the Wikols would meet educational program had provided Anika with a “free to determine Anika’s IEP for the following school years, and appropriate public education,” and therefore declined to that if a Lovaas or Lovaas-style program were implemented, award the Wikols any reimbursement for that year. Nos. 02-1798/2047 Wikol v. Birmingham 5 6 Wikol v. Birmingham Nos. 02-1798/2047
Public Schools Public Schools Following the district court’s entry of judgment on Appellate Procedure, other than the one for attorney fees, the March 27, 2002, the Wikols timely moved for the recovery of time to file an appeal automatically runs for all parties from attorney fees and costs pursuant to 20 U.S.C. § 1415, which the entry of the order disposing of the last such remaining the district court denied. The Wikols appeal from the district motion. The post-decisional motion relevant to this case is of court’s partial denial of their motion for summary judgment, course the one for attorney fees, which was filed pursuant to the jury’s verdict concerning the 1999-2000 school year, the Rule 54 of the Federal Rules of Civil Procedure. When a district court’s denial of their motion for attorney fees and litigant files a Rule 54 motion for attorney fees, the time to costs, and the district court’s denial of prejudgment interest. file a notice of appeal will run from the disposition of that Birmingham cross-appeals, challenging the timeliness of the motion “ if the district court extends the time to appeal under Wikols’ appeal as to all issues other than their claim for Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii) (emphasis added). attorney fees and costs. The plain language of Rule 4 thus stipulates that in order for
the time to file an appeal to be tolled when a party moves for II. ANALYSIS attorney fees under Rule 54, the district court must affirmatively act pursuant to Rule 58 of the Federal Rules of A. Timeliness of the Wikols’ appeal Civil Procedure. Rule 58, in turn, provides that We must determine, as a threshold issue, whether we have [w]hen a timely motion for attorney fees is made under jurisdiction to hear the bulk of the issues raised in this appeal. Rule 54(d)(2), the court may act before a notice of appeal On cross-appeal, Birmingham argues that we do not have has been filed and has become effective to order that the such jurisdiction because the Wikols filed their notice of motion have the same effect under Federal Rule of appeal late, outside of the time limits imposed by Rule Appellate Procedure 4(a)(4) as a timely motion under 4(a)(1)(A) of the Federal Rules of Appellate Procedure. Rule 59. Determining the timeliness of the Wikol’s notice of appeal Fed. R. Civ. P. 58(c)(2) (emphasis added). requires an analysis of the interplay between Rule 4 of the Federal Rules of Appellate Procedure and Rules 54, 58, and
Rule 58’s reference to “a timely motion under Rule 59” is 59 of the Federal Rules of Civil Procedure. Rule 4(a)(1)(A) initially puzzling, given that Rule 59 neither mentions the of the Federal Rules of Appellate Procedure provides the filing of a notice of appeal nor refers back to Rule 58. A generally applicable limitation that a notice of appeal in a number of cross-references are necessary to divine Rule 59’s civil case must be filed “within 30 days after the judgment or place in the Rule 4, 54, 58, 59 quagmire. The only part of order appealed from is entered.” A litigant’s compliance with Rule 59 that appears relevant to the timeliness of a notice of this “mandatory and jurisdictional” requirement is of critical appeal is 59(e), which provides that “[a]ny motion to alter or importance. 16A Wright et al., Federal Practice and amend a judgment shall be filed no later than 10 days after the Procedure § 3950.1 (3d ed. 1999).
entry of the judgment.” If we then look back to Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure, we
Exceptions to the 30-day rule exist, however. If a party see that a Rule 59 motion to alter or amend the judgment is timely files any one of the six post-judgment motions one of the five enumerated motions that automatically resets enumerated in Rule 4(a)(4)(A) of the Federal Rules of Nos. 02-1798/2047 Wikol v. Birmingham 7 8 Wikol v. Birmingham Nos. 02-1798/2047
Public Schools Public Schools the time to file a notice of appeal “from the entry of the order 5. In the alternative, Plaintiffs request that pursuant to disposing of the . . . motion.” Fed. R. Civ. P. 58 and 59(e), the Court amend its
May 15, 2002 Order to include a provision stating that We therefore conclude that when a timely motion for the parties’ March 22, 2002 motions to assess fees and attorney fees is filed under Rule 54, and the district court costs shall be given the same effect under Rule 4(a)(4) of exercises its discretion under Rule 4(a)(4)(A) to extend the the Federal Rules of [Appellate] Procedure as a timely time for filing a notice of appeal, the motion for attorney fees motion under Rule 59. is given the same effect as a Rule 59 motion to amend or alter the judgment, which, pursuant to Rule 4(a)(4)(A), While this motion was pending in the district court, the automatically resets the time to file a notice of appeal until Wikols filed their notice of appeal on June 14, 2002. On the newly characterized Rule 59 motion, formerly a Rule 54 July 11, 2002, the district court granted the Wikols’ motion motion for attorney fees, is disposed of. See Mendes Junior for an extension of time in which to file a notice of appeal, Int’l Co. v. Banco do Brasil , 215 F.3d 306, 312 (2d Cir. 2000) ruling in pertinent part that (“Rule 58 expressly describes some of the temporal the court grants the plaintiff’s request and pursuant to limitations on the district court’s authority to order that a Fed. R. Civ. P.[] 58, the March 22nd motion for costs timely Rule 54 fee motion have the same effect as a timely and attorney fees shall have the same effect under Rule motion under, for example, Rule 59 (which we will 4(a)(4) of the Federal Rules of Appellate Procedure as a sometimes refer to as a ‘Rule 58/54/59 order’).”). Rule 58 timely motion under Rule 59. Therefore, the time for imposes no time limit on when the district court must rule on filing a notice of appeal shall run from the date of the the Rule 54 motion, except that it must act before “a notice of entry of the Court’s order on the motion for attorney fees, appeal has been filed and has become effective . . . .” This is
May 15, 2002. the nub of the problem, because here the district court acted on the Wikols’ Rule 54 motion after they had filed their
Birmingham argues that the district court’s July 11, 2002 notice of appeal. grant of an extension of time to file the notice of appeal was ineffective because it was entered after the Wikols filed their On March 22, 2002, the Wikols moved for attorney fees June 14, 2002 notice, contrary to the language contained in and costs, which the district court denied on May 15, 2002. Rule 58 of the Federal Rules of Civil Procedure that limits the The Wikols then attempted to take advantage of the tolling district court’s power to act to the time “ before a notice of provision of Rule 4(a)(4) in a May 24, 2002 motion to extend appeal has been filed and has become effective . . . .” the time for filing a notice of appeal. Their motion provided (Emphasis added.) It contends that when the Wikols filed in pertinent part as follows:
their notice of appeal on June 14, 2002, the notice became 4. Plaintiffs hereby request that pursuant to Fed. R. Civ. effective immediately; therefore, “[b]y the express terms of P. 58, the Court order that the parties’ motions for costs Rule 58, the District Court had no authority, on July 11, 2002, and attorneys’ fees have the same effect under Rule to enter its Order Extending the Time for Filing the Notice of 4(a)(4) of the Federal Rules of Appellate Procedure as a Appeal.” timely motion under Rule 59.
Nos. 02-1798/2047 Wikol v. Birmingham 9 10 Wikol v. Birmingham Nos. 02-1798/2047 Public Schools Public Schools In response, the Wikols argue that although they had filed [a] notice filed before the filing of one of the specified their notice of appeal before the district court entered its Rule motions or after the filing of a motion but before 58/54/59 order, “it is indisputable that the notice of appeal as disposition of the motion is, in effect, suspended until the to the underlying judgment had not yet become effective.” motion is disposed of, whereupon, the previously filed They reason that because the notice of appeal was filed notice effectively places jurisdiction in the court of outside of Rule 4(a)(1)’s prescribed time period, it could only appeals. . . . [A] notice of appeal will ripen into an become effective upon some action of the district court effective appeal upon disposition of a posttrial motion triggering one of the exceptions to the 30-day limit. The . . . . Wikols conclude that their notice of appeal “became effective Fed. R. App. P. 4(a)(4) advisory committee’s notes. upon the district court’s entry of its July 11, 2002 Memorandum and Order.” For the reasons that follow, we
Based upon this understanding of the word “effective,” we respectfully disagree. hold that the Wikols’ notice of appeal was effective on the day that it was filed, given that the judgment had been entered
The key issue is whether the notice of appeal became and that no motions that automatically toll the time to file a effective prior to the time the district court issued its notice of appeal were pending. We therefore agree with July 11, 2002 order. We look to Rule 4(a)(4)(B)(i) of the Birmingham that the district court’s July 11, 2002 order did Federal Rules of Appellate Procedure for guidance as to the not comply with the time requirements of Rule 58. meaning of the word “effective.” This portion of Rule 4 provides as follows:
As a final comment on this issue, we cannot help but express dismay over the complexity of the rules regarding the If a party files a notice of appeal after the court timeliness of an appeal under the present circumstances. announces or enters a judgment—but before it disposes
There should be no need to have to parse the language of four of any motion listed in Rule 4(a)(4)(A)—the notice different rules of procedure in order to find an answer to becomes effective to appeal a judgment or order, in whether an appeal is timely filed. See generally, Kenneth J. whole or in part, when the order disposing of the last Servay, The 1993 Amendments to Rules 3 and 4 of the such remaining motion is entered.
Federal Rules of Appellate Procedure—A Bridge Over Rule 4(a)(4)(B)(i) does not apply here because the Wikols’ Troubled Water—Or Just Another Trap? , 157 F.R.D. 587, notice of appeal was filed after the entry of the order 605 (1994) (noting that the amended Rule 4 “concerning the disposing of their Rule 54 motion, not before. The rule effect of post-judgment motions for attorney’s fees” on the suggests, however, that the concept of “effectiveness” is timeliness of a notice of appeal creates a “jurisdictional limited to delaying the transfer of jurisdiction to the appellate trap.”). The basic problem is that five of the six post- court from an otherwise timely filed notice of appeal until the judgment motions enumerated in Rule 4(a)(4)(A) relevant post-judgment motion is decided. Supporting this automatically extend the time to file an appeal, but the interpretation are the advisory notes to Rule 4, which explain remaining one (a motion for attorney fees pursuant to Rule that 54) does not. Perhaps this is a topic that should be considered
by the Advisory Committee to the Federal Rules of Appellate Procedure.
Nos. 02-1798/2047 Wikol v. Birmingham 11 12 Wikol v. Birmingham Nos. 02-1798/2047 Public Schools Public Schools In any event, we have no choice but to dismiss the Wikols’ during the 1998-99 academic year. Birmingham does not appeal as untimely with respect to all but their claim for contest the Wikols’ prevailing-party status. attorney fees and costs. “[E]ven where the attorney’s fee
We review a district court’s decision of whether to award motion is filed before the notice of appeal, under the wording attorney fees under the “abuse of discretion” standard. of [Rule 58], that motion would not extend the appeal time Phelan v. Bell , 8 F.3d 369, 373 (6th Cir. 1993). A district unless the district court also extended the appeal time before court abuses its discretion when it relies upon clearly the notice of appeal was filed.” Servay at 606. This leaves us erroneous factual findings, applies the law improperly, or uses with the remaining issue regarding the Wikols’ request for an erroneous legal standard. Id. attorney fees and costs, as to which the appeal was indisputably timely. We now turn our attention to this issue.
The IDEA’s fee-shifting provision is to be interpreted consistent with 42 U.S.C. § 1988, the attorney-fees provision B. The district court’s denial of attorney fees and costs for civil rights actions. Id . Sixth Circuit case law requires to the Wikols that a district court award attorney fees to a prevailing party Following the district court’s entry of judgment, the Wikols where no special circumstances militate against such an filed a motion for the recovery of attorney fees and costs award. Berger v. City of Mayfield Heights , 265 F.3d 399, 406 pursuant to 20 U.S.C. § 1415. The district court denied the (6th Cir. 2001) (“[W]e have previously observed that Wikols’ motion, reasoning that although they were although the Supreme Court has held [that] . . . it is within the technically the prevailing parties, they did not prevail on the district court’s discretion to award attorney’s fees under bulk of their case and they were therefore not entitled to section 1988, in the absence of special circumstances a attorney fees or costs. On appeal, the Wikols argue that the district court not merely may but must award fees to the district court erred because they were undeniably the prevailing plaintiff.”) (quotation marks and citation omitted). prevailing party and because there were no “special
The Ninth Circuit has adopted a two-prong test to circumstances” justifying a denial of fees. determine whether special circumstances exist, presumably in The IDEA provides that “[i]n any action or proceeding an effort to define “special circumstances” more precisely. brought under this section, the court, in its discretion, may Under this test, a court must consider “(1) whether awarding award reasonable attorneys’ fees as part of the costs to the fees would further the congressional purpose in enacting [the parents of a child with a disability who is the prevailing IDEA], and (2) the balance of the equities.” Barlow-Gresham party.” 20 U.S.C. 1415(i)(3)(B). To be considered a Union High School v. Mitchell , 940 F.2d 1280, 1285 (9th Cir. “prevailing party” for the purpose of attorney fees, a plaintiff 1991). Although the use of such a test gives the appearance must “succeed on any significant issue in litigation which of a systematic approach to defining “special circumstances,” achieves some of the benefit the part[y] sought in bringing we question whether the Ninth Circuit’s factors, due to their suit.” Berger v. Medina City Sch. Dist. , 348 F.3d 513, 526 vagueness, render the test any more useful than the customary (6th Cir. 2003) (quoting Hensley v. Eckerhart , 461 U.S. 424, case-by-case analysis. 433 (1983)). The district court found that the Wikols were a The Fourth Circuit has rejected the Mitchell test, reasoning prevailing party because they had obtained a favorable that it “contains no real standards and provides no legitimate judgment regarding reimbursement for Anika’s schooling Nos. 02-1798/2047 Wikol v. Birmingham 13 14 Wikol v. Birmingham Nos. 02-1798/2047
Public Schools Public Schools reason for departing from the usual rule of awarding fees under the Eckerhart standard but, under this court’s reasonable fees to prevailing plaintiffs under fee-shifting precedents, their “limited success” should not have acted as statutes.” Doe v. Bd. of Educ. of Baltimore County , 165 F.3d a total bar to recovery. 260, 264 n.2 (4th Cir. 1998) (holding that an attorney-parent’s Birmingham also argues that the Wikols are barred from representation of his own daughter in an IDEA proceeding attorney fees under 20 U.S.C. § 1415(i)(3)(D), which constituted special circumstances that justified the denial of provides that a plaintiff will not be awarded attorney fees an award of attorney fees). But see Borengasser v. Arkansas where he or she rejects a written settlement offer and the court State Bd. of Educ. , 996 F.2d 196, 199 (8th Cir. 1993) (holding finds that the relief obtained by the plaintiff is not more that the district court abused its discretion in not awarding favorable than the offer of settlement. The settlement-offer attorney fees to the parents of a disabled child in an IDEA
exception to an award of attorney fees might indeed bar the action where the school district had argued a lack of effort to Wikols from recovery, but the district court did not make the resolve the dispute on the part of the parents’ attorney). We requisite finding that the relief obtained by the Wikols was agree with the Fourth Circuit’s approach that attorney-fees less favorable than whatever offer Birmingham may have awards should be analyzed on a case-by-case basis, without made. On remand, the district court should therefore consider attempting to apply any predetermined formula.
20 U.S.C. § 1415(i)(3)(D)’s potential applicability to this Birmingham argues that the Wikols’ allegedly “false and case. misleading” billings to Birmingham constitute special III. CONCLUSION circumstances that justify denying their request for attorney fees. But this court has rejected the argument that a plaintiff’s
For all of the reasons set forth above, we conclude that the bad acts are special circumstances warranting the denial of Wikols’ notice of appeal was untimely as to the bulk of their attorney fees. Price v. Pelka , 690 F.2d 98, 101 (6th Cir. claims. We therefore have jurisdiction only over the district 1982) (holding that the plaintiff’s perjury was not a special court’s denial of attorney fees and costs, which decision we circumstance that warranted a denial of attorney fees in a vacate and remand with instructions to reconsider. housing discrimination case). Given this precedent, the record does not support a finding of special circumstances warranting the denial of attorney fees to the Wikols, even if we assume that some billings were false or misleading. We therefore remand the issue of attorney fees and costs to the district court.
On remand, the district court should take into consideration the extent to which the Wikols succeeded on their claims. See Hensley v. Eckerhart , 461 U.S. 424, 440 (1983) (“[W]here the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.”) The Wikols may well receive reimbursement for only a fraction of their total legal
