UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JANICE DICKENS, et al.,

Plaintiffs,

v. Civil Action No. 06-cv-1466 (AK)

FRIENDSHIP-EDISON P.C.S.,

Defendant.

MEMORANDUM OPINION1

Pending before the Court are Plaintiffs’ Motion for Summary Judgment [16], Defendant’s

Reply to Plaintiffs’ Motion for Summary Judgment2 and Defendant’s Motion for Summary

Judgment [17], Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment [19], and

Defendant’s Reply in Support of Defendant’s Cross Motion for Summary Judgment [21].

Plaintiffs, on behalf of their minor children, brought this action against Friendship-Edison

Public Charter School (“FEPCS”) to obtain reimbursement for attorneys’ fees incurred in

administrative hearings conducted pursuant to the Individuals with Disabilities Education Act

(“IDEA”) as amended.

(2006). Plaintiffs now seek summary judgment

regarding the reimbursement of their attorneys’ fees. (Pls.’ Mem. of P. & A. in Supp. of Pls.’

Mot. for Summ. J. (“Pls.’ Mem. of P. & A.”) at 2.) Defendant opposes Plaintiffs’ motion for

1 The parties consented to proceed before the undersigned Magistrate Judge for all purposes on March 21, 2007. (See Consent Order [11] dated 03/21/07.)

2 It appears that Defendant inadvertently titled its reply to Plaintiffs’ motion for summary judgment “Plaintiff’s Reply to Defendant, Dickens Motion for Summary Judgment [sic].” The Court assumes Defendant meant to title its filing “Defendant’s Reply to Plaintiffs’ Motion for Summary Judgment.” summary judgment and has filed its own motion for summary judgment on the issue of attorneys’

fees. (Def.’s Mot. for Summ. J. at 1.)

I. Statutory Background

The core purpose of the IDEA is to “to ensure that all children with disabilities have

available to them a free appropriate public education . . . .”

(d)(1)(A). In

furtherance of that goal, the IDEA provides “guaranteed procedural safeguards with respect to the

provision of a free appropriate public education” for children with disabilities and their parents.

(a). These safeguards include the “opportunity for the parents of a child with a

disability to examine all records relating to such child and to participate in meetings with respect

to the identification, evaluation, and educational placement of the child” or “to obtain an

independent educational evaluation of the child.”

(b)(1). Under section

1415(b)(6), any party may also present a complaint “with respect to any matter relating to the

identification, evaluation, or educational placement of the child, or the provision of a free

appropriate public education to such child.”

(b)(6)(A).

When a party files a section 1415(b)(6) complaint, “the parents or the local educational

agency involved in such complaint shall have an opportunity for an impartial due process

hearing.”

(f)(1)(A). “[A] decision made by a hearing officer shall be made on

substantive grounds based on a determination of whether the child received a free appropriate

public education.”

(f)(3)(E)(i). If a party is aggrieved by the decision in this

hearing or on appeal, it may bring a civil action in any state court with jurisdiction or in a federal

district court regardless of the amount in controversy.

(i)(2)(A). Additionally,

for any action brought under section 1415 of the IDEA, “the court, in its discretion, may award

2 reasonable attorneys’ fees as part of the costs” to the “prevailing party,” whether that party be the

parent of a child, a state, or local educational agency.

(i)(3)(B)(i).

II. Factual Background

Plaintiffs seek reimbursement of reasonable attorneys’ fees from FEPCS for

administrative due process hearings conducted in accordance with the IDEA on behalf of five

students: T.D. (DOB 95), T.D. (DOB 97), A.M., G.W., and B.S. (Pls.’ Mem. of P. &. A. at 2.)

A. T.D. (DOB 95)

Counsel for Janice Dickens, parent and next friend of T.D. (DOB 95), a minor, sent a

letter to Friendship Southeast Elementary Academy (“FSPSC”), a FEPCS school, requesting an

evaluation of the student for special education on December 20, 2005. (A.R.3 for T.D. (DOB 95)

at 3.) Participants at a February 24, 2006, Multi-disciplinary Team (“MDT”) meeting

recommended that the student receive psychological, speech and language, educational, and

occupational therapy screening. (Id. at 4.) On April 14, 2006, counsel for Dickens requested an

IDEA administrative due process hearing because FSPSC allegedly failed to (1) fully evaluate

the student, (2) convene another MDT to review the evaluations, (3) address eligibility for an

Individualized Education Program (“IEP”), and (4) develop an IEP, if necessary, within the

appropriate time period. (Pls.’ Mem. of P. & A. at 2.) For relief, Dickens requested funding for

the evaluation and a meeting to determine eligibility for an IEP. (Id. at 3.)

Although FSPCS did complete the occupational therapy and psychological evaluations in

May 2006, it did not complete the educational and speech and language evaluations until a few

days before the student’s hearing. (A.R. for T.D. (DOB 95) at 4.) At the administrative due

3 “A.R.” refers to “Administrative Record.”

3 process hearing on June 19, 2006, the Hearing Officer determined that FSPSC did not comply

with District of Columbia Municipal Regulations 3005 and 3019 because it did not complete the

special education process within 120 days from the December 2005 referral date. (Id.) However,

the parties apparently agreed to voluntarily convene a MDT meeting to determine the student’s

eligibility for special education the next day, and the Hearing Officer ordered FSPSC to provide

the student with compensatory education only if he was found eligible for an IEP at that meeting.

(Id.)

B. T.D. (DOB 97)

Counsel for Dorothea Dixon, parent and next friend of T.D. (DOB 97), a minor, filed a

due process hearing request on April 27, 2004, alleging that the District of Columbia Public

Schools (“DCPS”) and FEPCS failed to (1) develop an appropriate IEP for the student, (2)

convene a MDT/IEP meeting to evaluate the student’s IEP in a timely manner, and (3) deliver

compensatory education services. (A.R. for T.D. (DOB 97) at 3-4.) The student was eligible for

special education and had received an IEP in April 2003. (Id.) As relief, the parent requested

that DCPS/FEPCS convene a MDT meeting within ten days of the hearing, revise the student’s

IEP, and fund the compensatory services. (Pls.’ Mem. of P. & A. at 3.) FEPSC actually

proposed to expel the student due to his disruptive behavior, but before the FEPSC board

approved the expulsion, the parent voluntarily transferred the student to Savoy Elementary

School on April 14, 2004. (Id. at 3-4.)

At the administrative due process hearing on May 17, 2004, the Hearing Officer granted

DCPS’s motion to be dismissed as a party in the case. (Id. at 3, 6.) The Hearing Officer also

determined that all issues regarding the April 2003 IEP had been previously resolved at a June

4 2003 hearing and did not need to be adjudicated again. (Id. at 5-6.) In addition, the officer

denied the parent’s request to determine whether FEPCS had denied the student a free

appropriate public education (“FAPE”). (Id. at 6.) However, the Hearing Officer ordered

FEPCS to provide the student with eighteen hours of compensatory speech and language services

even though he concluded that FEPCS had “sustained its burden of proof.” (Id.) Finally, the

officer ordered DCPS/FEPCS to convene a MDT/IEP meeting to determine an appropriate

compensatory education plan regarding the missed services. (A.R. for T.D. (DOB 97) at 6.)

C. A.M.

Counsel for William Marrow and Edwina Sumpter, parents and next friends of A.M., a

minor, filed an administrative due process hearing request on November 19, 2003, alleging that

FEPCS failed to provide the speech and language services prescribed in the student’s April 2003

IEP. (A.R. for A.M. at 3-4.) For relief, the parents requested that FEPCS begin speech and

language therapy within five days after the issuance of the order, conduct an adaptive behavior

assessment, convene a MDT meeting to review and revise the student’s IEP, and determine the

amount of compensatory education due. (Pls.’ Mem. of P. & A. at 4.) FEPCS’s counsel

admitted that the school did not begin providing A.M. with the IEP’s required speech and

language services until January 9, 2004. (A.R. for A.M. at 4.) At the administrative hearing on

January 16, 2004, the Hearing Officer determined that the school’s failure to provide the speech

and language services called for in the student’s IEP constituted a denial of a FAPE. (See

.) The Hearing Officer found that FEPSC violated the IDEA, granted the parents’ request for

compensatory speech and language services, and ordered FEPCS to hold a MDT/IEP meeting

within 30 days to develop a compensatory education plan for the missed services. (Id. at 6-7.)

5 D. G.W.

Counsel for Gloria Ward-Ravenell, grandmother of G.W., filed a hearing request on

February 13, 2004, alleging that FEPCS failed to (1) complete a requested reevaluation of the

student, (2) complete an annual review of the student’s IEP, (3) provide services related to the

IEP between September 2003 and December 2003, and (4) include present levels of educational

performance in the student’s IEP. (A.R. for G.W. at 6.) For relief, the grandparent requested that

FEPCS convene a meeting to reevaluate the student. (Pls.’ Mem. of P. & A. at 4.) After the

request had been filed, FEPCS convened a MDT meeting on March 31, 2004, without the

student’s grandmother and educational consultant, knowing that those parties wished to attend.

(A.R. for G.W. at 16.)

At administrative hearings in April and May 2004, the Hearing Officer determined that

FEPCS had denied the student a FAPE by failing to reevaluate the student in a timely manner,

failing to include present levels of educational performance in the June 2002 and March 2003

IEPs, and failing to reschedule the MDT meeting so that the student’s grandmother and

educational consultant could attend. (Id. at 16.) The Hearing Officer also ordered FEPCS to

convene a MDT/IEP meeting within thirty days at which the parties would discuss the “form,

amount, and delivery of compensatory education, if any . . . .” (Id. at 17.) However, the Hearing

Officer did not award the student any compensatory services for the non-delivery of speech or

language services. (Id.)

E. B.S.

Counsel for Nina Spencer, parent and next friend of B.S., a minor, filed a hearing request

on October 14, 2003, alleging that DCPS and FEPCS failed to reevaluate the student in a timely

6 manner and conduct an annual review of the student’s IEP. (See Compl. [1] at 6.) The parent

sought psycho-educational, speech and language, social history, occupational therapy, or physical

therapy evaluations, if warranted, as relief. (Id.) At a hearing on March 12, 2004, the Hearing

Officer ordered DCPS and FEPCS to convene a MDT/IEP meeting on March 31, 2004, to review

the student’s evaluations and decide whether a compensatory education plan was appropriate.

(Id. at 7.) Subsequently, Plaintiffs voluntarily asked the court to dismiss Plaintiff Nina Spencer

from the lawsuit with prejudice on March 9, 2007. (Notice of Voluntary Dismissal [5] dated

03/09/07.)

III. Legal Standards

A. Summary Judgment

Summary judgment is proper under Rule 56(c) if “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.

56(c); see also Celotex Corp. v. Catrett,

(1986). The moving party “always

bears the initial responsibility of informing the district court of the basis for its motion” and

demonstrating the absence of a genuine issue of material fact. Celotex,

; Bias v.

Advantage Int’l, Inc.,

, 1560 (D.C. Cir. 1990). The relevant substantive law

determines the materiality of particular facts, and an issue of material fact is “genuine” when “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc.,

(1986).

If the moving party meets its burden, the nonmoving party must then demonstrate that a

genuine issue as to any material fact does actually exist. Bias, 905 F.2d at 1561. The nonmoving

7 party “must do more than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). Instead,

the nonmoving party “must come forward with ‘specific facts showing that there is a genuine

issue for trial.’”

at 587 (quoting FED . R. CIV . P. 56(e)). When there is a genuine dispute of

fact, courts must view the facts “in the light most favorable to the nonmoving party.” Scott v.

Harris,

(2007). Regardless of which party made the motion, summary

judgment is appropriate when a party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex,

; Bias, 905 F.2d at 1560.

B. Prevailing Party

The IDEA provides that “the court, in its discretion, may award reasonable attorneys’

fees” to a “prevailing party” in any action or proceeding brought under section 1415.

(i)(3)(B)(i). The IDEA therefore authorizes parents who prevail at an administrative due

process hearing to recover attorneys’ fees. Moore v. Dist. of Columbia,

(D.C.

Cir. 1990). In general, parties achieve prevailing party status when they “succeed on any

significant issue in litigation which achieves some of the benefit the parties sought in bringing

suit.” Hensley v. Eckerhart,

(1983) (quoting Nadeau v. Helgemoe,

(1st Cir. 1978)). In the context of a federal fee-shifting statute, such as the IDEA,

the Supreme Court has outlined a three-part test for determining prevailing party status. See

Thomas v. Nat’l Sci. Found.,

(D.C. Cir. 2003) (citing Buckhannon Bd. &

Care Home v. W. Va. Dep’t of Health & Human Res.,

(2001)); Robinson

v. Dist. of Columbia, No. 06-1253,

, at *11 (D.D.C. Aug. 2, 2007).

8 First, prevailing party status requires “an ‘alteration in the legal relationship of the parties’ that

has been given some judicial imprimatur.” Armstrong v. Vance,

(D.D.C.

2004) (quoting Buckhannon,

). Second, the prevailing party is the “party in

whose favor a judgment is rendered, regardless of the amount of damages awarded.” Thomas,

F.3d at 493 (quoting Buckhannon,

). Third, the prevailing party must obtain

some “judicial relief,” not just a “judicial pronouncement.”

at 493 (quoting Buckhannon,

). Even under this “generous” standard, a prevailing party must show that its success

was more than just “purely technical or de minimis.” Tex. State Teachers Ass’n v. Garland

Indep. Sch. Dist.,

(1989).

IV. Discussion

A. T.D. (DOB 97), A.M., and G.W. are Prevailing Parties

“[I]t is the province of the district court to make the ultimate decision as to who prevailed

in an IDEA action.” Artis v. Dist. of Columbia,

(D.D.C. 2008) (citing

T.S. ex rel. Skrine v. Dist. of Columbia, No. 05-00861,

, at *10

(D.D.C. Mar. 27, 2007)). Here, T.D. (DOB 97), A.M., and G.W. are prevailing parties because

they succeeded on significant issues in their hearings and, in each case, the hearing officers

ordered FEPCS to take action consistent with the IDEA. See T.S.,

at *13.

In these three cases, the hearing officers’ determinations changed the legal relationship

between the parties with some degree of “judicial imprimatur” by ordering the school to convene

a meeting for the students or provide them with compensatory education. See Armstrong,

. For example, the Hearing Officer ordered FEPCS to convene a MDT/IEP

9 meeting regarding T.D. (DOB 97) and to provide the student with eighteen hours of

compensatory speech and language services. Similarly, in the case of A.M., the Hearing Officer

ordered FEPCS to hold a MDT/IEP meeting and develop a compensatory education plan for

missed services. For G.W., the Hearing Officer ordered FEPCS to convene a MDT/IEP meeting

to discuss compensatory education.

Additionally, T.D. (DOB 97), A.M., and G.W. were the parties “in whose favor a

judgment [was] rendered . . . .” Thomas,

(quoting Buckhannon,

). Denial of a FAPE directly violates the IDEA and a judgment that such a violation has

occurred usually confers prevailing party status on the student. See Artis, F. Supp. 2d at 22.

Therefore, A.M. and G.W. received judgments in their favor because the hearing officers

concluded that FEPCS had denied them a FAPE. However, denial of a FAPE is not necessary to

achieve prevailing party status in an IDEA action. See Robinson,

,

at *13-14. In T.S. ex rel. Skrine v. District of Columbia, for example, the court determined that

the student was the prevailing party in an IDEA action despite the administrative hearing

officer’s conclusion that DCPS did not deny the student a FAPE.

,

at *6, *13-14. Even though the Hearing Officer did not determine whether FEPCS denied him a

FAPE, T.D. (DOB 97) still received a judgment in his favor because FEPCS was ordered to

convene a MDT meeting and provide him with eighteen hours of compensatory education.

Finally, all three of these students received some “judicial relief,” not just a “judicial

pronouncement.” Thomas,

(quoting Buckhannon,

). The parent

of T.D. (DOB 97) sought a meeting to review the student’s IEP and funding for compensatory

education services, and the Hearing Officer ordered FEPSC to convene a MDT meeting and

10 provide the student with eighteen hours of compensatory education. The parents’ request for

relief in A.M.’s case included a MDT/IEP meeting to determine the amount of compensatory

education due, and the Hearing Officer ordered FEPCS to hold a MDT/IEP meeting and develop

a compensatory education plan for the student’s missed services. Finally, the grandparent of

G.W. requested that FEPCS convene a meeting to reevaluate the student, and the Hearing Officer

ordered the school to convene such a meeting. The relief each Plaintiff received “vindicat[ed] its

claim of right.” Dist. of Columbia v. Jeppsen,

(D.C. Cir. 2008) (citing

Select Milk Producers, Inc. v. Johanns,

(D.C. Cir. 2005)).

Thus, the Court finds that T.D. (DOB 97), A.M., and G.W. are prevailing parties in their

respective IDEA actions. These three Plaintiffs are therefore entitled to reimbursement of

reasonable attorneys’ fees. However, the Court will reserve judgment on the reasonableness of

the fees charged until Plaintiffs submit a formal fee petition.4 To date, Plaintiffs have not

demonstrated that the fees their attorneys charged were reasonable or “based on rates prevailing

in the community in which the action or proceeding arose for the kind and quality of services

furnished.”

(i)(3)(C). Defendant argues that if the Court awards Plaintiffs any

attorneys’ fees, the Court should proportionately reduce the amount Plaintiffs charged based on

the number of requests for relief the administrative hearing officers granted. (See Def.’s Mem. of

P. & A. dated 08/01/08 at 3-4.) The Supreme Court has stated that where a plaintiff is a

prevailing party, “the degree of the plaintiff’s overall success goes to the reasonableness of the

award . . . .” Tex. State Teachers Ass’n,

. The Court will therefore carefully

4 Plaintiffs merely attached invoices of $15,573.36 for T.D. (DOB 97), $4,951.46 for A.M., and $23,077.74 for G.W . to their complaint. (See Compl. [1] Ex. 2 at 18-28, Ex. 3 at 21-25, Ex. 5 at 34-46.)

11 review Plaintiffs’ fee petition and the response by Defendant in light of Texas State Teachers

Ass’n v. Garland Independent School District,

(1989).

B. T.D. (DOB 95) and B.S. are Not Prevailing Parties

On the other hand, T.D. (DOB 95) is not a prevailing party because the hearing officer’s

determination did not change the legal relationship between the parties and the relief the student

received was de minimus. See Tex. State Teachers Ass’n,

. At the

administrative hearing for T.D. (DOB 95), the officer explained that the parties voluntarily

agreed to convene a MDT meeting the next day. Just as in Artis v. District of Columbia,

“[b]ecause the hearing officer merely noted the parties’ agreement, the hearing officer did not

order any change in the legal relationship between the parties.”

; see also

Buckhannon,

(“A defendant’s voluntary change in conduct, although perhaps

accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial

imprimatur on the change.”). In addition, although the Hearing Officer did find that FEPSC

failed to complete the special education process within 120 days, he did not find that FEPSC

denied the student a FAPE.

Furthermore, even considering the “generous” standard for prevailing parties, the relief

T.D. (DOB 95) received did not cross the “technical and de minimus” threshold. Tex. State

Teachers Ass’n,

. As relief, the Hearing Officer ordered FEPSC to provide T.D.

(DOB 95) compensatory education only if the student was deemed eligible for special education

at an upcoming MDT meeting. This relief did not necessarily require FEPSC to take action

consistent with the IDEA. See T.S.,

, at *13. As such, the relief

was de minimus because FEPSC could potentially do “nothing more than [it] had previously

12 offered to do” if the school determined T.D. (DOB 95) was not eligible for special education.

Artis,

. For these reasons, T.D. (DOB 95) is not a prevailing party.

B.S. is also not a prevailing party. The officer at the administrative hearing for B.S.

ordered FEPCS to convene a MDT/IEP meeting. (Compl. [1] at 7.) Subsequently, however,

Plaintiffs asked the court to dismiss Nina Spencer, parent and next friend of B.S., from this

lawsuit with prejudice in March 2007. (Notice of Voluntary Dismissal [5] dated 03/09/07.) The

trial court granted the request, and Nina Spencer is no longer a party to this lawsuit.

V. Conclusion

As explained above, T.D. (DOB 97), A.M., and G.W. are prevailing parties because the

hearing officers’ determinations changed the legal relationship between the parties, resulted in

favorable judgments for the students, and provided the students actual relief. T.D. (DOB 95) is

not a prevailing party because the hearing officer’s determination did not change the legal

relationship between the parties and only granted the student de minimus relief. B.S. is also not a

prevailing party because Nina Spencer is no longer a party to this lawsuit. Accordingly, the

Court will grant Plaintiffs’ motion for summary judgment and deny Defendant’s motion for

summary judgment with respect to reimbursement of reasonable attorneys’ fees for T.D. (DOB

97), A.M., and G.W. With respect to the reimbursement of reasonable attorneys’ fees for T.D.

(DOB 95) and B.S., the Court will deny Plaintiffs’ motion for summary judgment and grant

Defendant’s motion for summary judgment. A separate order accompanies this memorandum

opinion.

/s/ ALAN KAY UNITED STATES MAGISTRATE JUDGE

13