MCCRARY v. D.C. PUBLIC SCHOOLS et al

Filing 39

MEMORANDUM OPINION to 38 ORDER Entering Judgment in favor of Defendants. Signed by Judge James E. Boasberg on 6/16/2011. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BARBARA McCRARY,
Plaintiff,
v.

Civil Action No. 09-1784 (JEB)

DISTRICT OF COLUMBIA, et al.,
Defendants.

MEMORANDUM OPINION
Barbara McCrary, on behalf of her minor daughter S.M., filed a Due Process Complaint
Notice under the Individuals with Disabilities Education Act, alleging that her daughter had been
denied a free and appropriate public education as required by law. Following a due process
hearing and the issuance of a Hearing Officer’s Determination, Plaintiff filed this action for
attorney fees under the IDEA. Because the Court finds that Plaintiff was not the prevailing party
in the hearing below, the Court will deny Plaintiff’s request.
I.

Background
A. The IDEA Statutory Framework
The purpose of the IDEA is “to ensure that all children with disabilities have available to

them a free appropriate public education [FAPE] that emphasizes special education and related
services designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). “Implicit” in the
IDEA’s guarantee “is the requirement that the education to which access is provided be sufficient
to confer some educational benefit upon the handicapped child.” Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982). As a condition of receiving
funding under the IDEA, school districts are required to adopt procedures to ensure appropriate
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educational placement of disabled students. See 20 U.S.C. § 1413. A student’s eligibility for a
FAPE under the IDEA is determined by the results of testing and evaluating the student, and the
findings of a “multidisciplinary team” or “individualized education program team.” § 1414.
Such a team consists of the parents and teachers of the disabled student, as well as other
educational specialists, who meet and confer in a collaborative process to determine how best to
accommodate the needs of the student and provide a FAPE. See § 1414(d)(1)(B).
School districts must also develop a comprehensive plan, known as an individualized
education program (IEP), for meeting the special educational needs of each disabled student.
See § 1414(d)(2)(A). The IEP must be formulated in accordance with the terms of the IDEA and
“should be reasonably calculated to enable the child to achieve passing marks and advance from
grade to grade.” Rowley, 458 U.S. at 204. “If no suitable public school is available, the school
system must pay the costs of sending the child to an appropriate private school.” Reid ex rel.
Reid v. District of Columbia, 401 F.3d 516, 519 (D.C. Cir. 2005) (citation and alterations
omitted).
The IDEA requires that children with disabilities be placed in the “least restrictive
environment” so that they can be educated in an integrated setting with children who are not
disabled to the maximum extent appropriate. See § 1412(a)(5)(A). The IDEA also guarantees
parents of disabled children the opportunity to participate in the evaluation and placement
process. See §§ 1414(e), 1415(b)(1). Parents who object to their child’s “identification,
evaluation, or educational placement” are entitled to an impartial due process hearing, see §§
1415(b)(6), (f)(1), at which they have a “right to be accompanied and advised by counsel” and a
“right to present evidence and confront, cross-examine, and compel the attendance of witnesses.”

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§ 1415(h). A qualified impartial hearing officer conducts the due process hearing in accordance
with the Act. 5 D.C. Mun. Regs. §§ 3030.11, 3030.13.
Parents “aggrieved by” a hearing officer’s findings and decision may bring a civil action
in either state or federal court. § 1415(i)(2)(A); 5 D.C. Mun. Regs. § 3031.5. The district court
has remedial authority under the Act and broad discretion to grant “such relief as the court
determines is appropriate” under the IDEA as guided by the goals of the Act. §
1415(i)(2)(C)(iii).
The IDEA gives this Court authority to “award reasonable attorneys’ fees as part of the
costs to the parents of a child with a disability who is the prevailing party” in an action under the
IDEA. 20 U.S.C. § 1415(i)(3)(B)(i)(I). This includes the authority to award fees to a party who
has prevailed in an administrative due process hearing. See Moore v. District of Columbia, 907
F.2d 165, 166 (D.C. Cir. 1990).
B. S.M.’s Education
S.M. was a disabled sixteen-year-old high-school student during the 2008-09 school year.
Hearing Officer’s Determination (“HOD”) at 4. She had attended three schools in three years: a
District of Columbia public charter school in 2006-07 (the “Public Charter”), a charter school in
2007-08 (the “Charter”), and a private school selected by her mother in 2008-09 (the “Private
School”). Id. During the 2006-07 school year, while S.M. was in ninth grade at the Public
Charter, she began “skipping school,” accumulated “excessive absences,” and “basically
received all Fs there.” Id. at 5. “After the Public Charter retained [S.M.] in the 9th grade,
[Plaintiff] withdrew [S.M.] from the Public Charter and placed her in the Charter.” Id.
During Fall 2007, the Charter conducted various evaluations of S.M. and prepared an IEP
for her. Id. at 4. S.M. was classified as having multiple disabilities and, pursuant to the IEP, was

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“to receive 13 hours of specialized instruction, 1 hour of speech and language services, .5 hour of
occupational therapy services, and 1 hour of psychological counseling services, for a total of
15.5 hours of special education and related services each week. . . . [S.M.] was also afforded
planning services, which consisted of collaborations between her special education and general
education teachers . . . .” Id. at 4-5. Although S.M. continued to have unexcused absences at the
Charter, her “final report card for SY 2007/08 reveals that she passed all of the [required] classes
she took at the Charter,” and Plaintiff “did not have any concerns about [S.M.]’s progress at the
Charter, because [she] was getting her work done and she was improving.” Id. at 5-6.
In Fall 2008, Plaintiff was told by the Charter that S.M. had not been registered for the
coming school year and, as the school was full, would have to be placed on the waiting list. Id.
at 6. Instead of placing S.M. on the waiting list, Plaintiff made the unilateral decision to enroll
her at the Private School. Id. Plaintiff did not, however, pay S.M.’s Private School tuition. Id.
S.M. began to accumulate unexcused absences at the Private School as well, and “the head of the
Private School was unable to explain exactly how the school ensures that [S.M.] receives the
proper amount of specialized instruction called for by her IEP while the special education staff
are rotating through the classrooms.” Id. at 7.
On October 15, 2008, Plaintiff filed a Due Process Complaint Notice against DCPS and
the Charter, alleging that DCPS and the Charter “denied [S.M.] a free appropriate public
education (‘FAPE’) by failing to (1) evaluate [S.M.] as requested by [Plaintiff] through counsel,
(2) complete [S.M.]’s triennial evaluations, (3) evaluate [S.M.] in all areas of suspected
disability, (4) complete a comprehensive and appropriate vocational plan, (5) provide [S.M.]
with an appropriate IEP, (6) provide [S.M.] with all appropriate special education and related
services, develop a vocational/transition plan, and provide transition services, and (7) convene a

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placement meeting for [S.M.] and provide an appropriate placement.” Id. at 2. Plaintiff later
voluntarily withdrew claims (1) and (3). Id. at 3.
In that proceeding, Plaintiff requested the following relief: that DCPS and the Charter
“fund the independent completion of the needed evaluations of the student, i.e., a psychoeducational/clinical evaluation, a psychological evaluation, Vineland, vocational and social
history evaluations”; “convene an MDT meeting within ten (10) days to review the evaluations,
develop an appropriate IEP, discuss compensatory education, as well as develop an appropriate
compensatory education plan, and to provide all necessary special education and related services
for the student”; “develop an appropriate and comprehensive result-oriented transitional plan for
the student and to immediately implement the appropriate and comprehensive result-oriented
plan for the student”; “issue a Prior Notice of Placement and fund S[.M.] at an appropriate
placement of parent’s choice, [the Private] School”; and “provide reasonable attorney fees.” Due
Process Complaint Notice at 5.
On January 15 and February 2, 2009, a due process hearing took place before Hearing
Officer Kimm Massey. Id. at 1, 3. On February 21, 2009, the hearing officer issued the
following Order:
1. Petitioner is awarded a finding that DCPS denied Student a
FAPE by failing to provide her with an appropriate placement
during SY[] 2006/07 when she attended the Public Charter.
2. In all other respects, Petitioner’s October 15, 2008 Complaint
is DISMISS[ED] ON THE MERITS, and its requests for
relief therein are DENIED.
3. Within a reasonable time after the issuance of this Order,
DCPS shall convene a Placement meeting to determine an
appropriate placement for Student for the remainder of SY
2008/09 and moving forward. Should DCPS fail to convene
such a meeting within two weeks of the issuance of this Order,
Petitioner’s counsel shall request such a meeting in writing on
Parent’s behalf.
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Id. at 10 (emphasis in original). In her written HOD, the hearing officer found that Plaintiff had
failed to meet the burden of proof for claims (2), (4), (5), and (6) relating to S.M.’s triennial
evaluations, vocational plan, IEP, and special education and related services. Id. at 7-10. Only
claim (7) remained.
With respect to that claim – namely, that DCPS and the Charter failed to “convene a
placement meeting for [S.M.] and provide an appropriate placement” – the hearing officer
considered S.M.’s placement at each of the three schools she attended separately. Id. at 9-10.
She first found S.M. “did not receive educational benefit at the Public Charter, and that,
therefore, the Public Charter was an inappropriate placement for” S.M. Id. at 9. This placement
was remedied the following year, however, when S.M. transferred to the Charter, which the
hearing officer found to be “not an inappropriate placement.” Id. The hearing officer concluded:
“As the Charter was not an inappropriate placement for [S.M.], it follows that the Charter was
not obligated to convene a placement meeting for [S.M.] during SY 2007/08. To the extent
Petitioner argued that the Charter was obligated to convene a placement meeting for Student
when it was determined that it had no space for her at the beginning of SY 2008/09, . . . this is
not a cognizable claim because it was not alleged in the Complaint, and the Charter has not
agreed to have the hearing officer consider the claim.” Id. at 9 (citing 34 C.F.R. § 300.511(d)
(party requesting hearing may not raise issues at due process hearing that were not raised in due
process complaint, unless other party agrees)).
Finally, the hearing officer addressed and rejected Plaintiff’s request to have DCPS pay
S.M.’s Private School tuition. She reasoned:
Petitioner has requested that the hearing officer require DCPS and/or
the Charter to fund Student’s unilateral placement at the Private
School upon finding that DCPS and/or the Charter failed to provide
Student with an appropriate placement.
The hearing officer
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determined above that DCPS failed to provide Student with an
appropriate placement during SY 2006/07 when she attended the
Public Charter. However, because Parent subsequently placed Student
in the Charter, a school of choice that proved to be an appropriate
placement for Student during SY 2007/08, an Order requiring DCPS to
fund Student at a private placement that was unilaterally chosen by
Parent for . . . SY 2008/09 seems highly inappropriate. In any event,
the evidence presented at the due process hearing does not establish
that the Private School can ensure Student receives the specialized
instruction her IEP requires.
Id. at 9-10.
Having received the HOD, Plaintiff then brought this action, initially filed in D.C.
Superior Court in August 2009, seeking attorney fees under 20 U.S.C. § 1415(i)(3). Complaint,
¶¶ 4, 7. Defendants filed their Notice of Removal to this Court the next month. Id., ¶ 6.
Notably, the parties do not challenge the hearing officer’s determination on any of the issues
presented. The only dispute pertains to attorney fees. Plaintiff alleges that “she prevailed at the
due process hearing” because the hearing officer granted the relief she sought; as a result, she
claims, she is entitled to fees in the amount of $15,139.30 “minus the amount already paid by the
DCPS,” and to “court costs and attorney’s fees for the current action.” Id., ¶¶ 5, A. Defendants
dispute the threshold question that Plaintiff actually prevailed.
On February 25 and March 4, 2010, respectively, Defendants and Plaintiff filed crossmotions for summary judgment, which the Court now considers.1
II.

Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
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In deciding the pending Motions, the Court has reviewed Plaintiff’s Amended Complaint, Defendants’
Motion for Summary Judgment, Plaintiff’s Cross-Motion for Summary Judgment and Opposition to Defendants’
Motion for Summary Judgment, Defendants’ Reply to Plaintiff’s Opposition, Plaintiff’s Reply to Defendants’
Opposition, and Defendants’ Surreply.

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Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The mere existence of a factual dispute, by itself, is
insufficient to bar summary judgment. Liberty Lobby, 477 U.S. at 248. To be material, the
factual assertion must be capable of affecting the substantive outcome of the litigation; to be
genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of
fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.
Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (court must determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law”).
The question of whether Plaintiff is a “prevailing party” for the purpose of §
1415(i)(3)(B) is “a question of law” that this Court will decide “based on the administrative
record and the hearing officer’s decision.” Artis v. District of Columbia, 543 F. Supp. 2d 15, 22
(D.D.C. 2008); see also District of Columbia v. West, 699 F. Supp. 2d 273, 278 (D.D.C. 2010)
(in action for attorney fees under IDEA, it is this Court, and “‘not the hearing officer in the
administrative proceeding, which determines prevailing party status’”) (quoting District of
Columbia v. Straus, 607 F. Supp. 2d 180, 183 (D.D.C. 2009)).
III.

Analysis
The IDEA provides that “[i]n any action or proceeding brought under this section, the

court, in its discretion, may award reasonable attorneys’ fees as part of the costs . . . to a
prevailing party who is the parent of a child with a disability.” § 1415(i)(3)(B)(i)(I). The
parties’ cross-motions for summary judgment present two legal questions arising from the
hearing officer’s findings: first, whether Plaintiff was the prevailing party at the due process
hearing; and second, whether the attorney fees Plaintiff seeks are reasonable. Because the Court

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finds that Plaintiff was not the prevailing party below, it need not address the reasonableness of
the fees sought.
Defendants contend that, although the hearing officer found that “DCPS had denied the
student a FAPE for the 2006/2007 school year by failing to provide her an appropriate
placement[,]” she “declined . . . to award any relief to Plaintiff” on this claim. Def. Mot. at 2.
The hearing officer’s “finding of a denial of a FAPE” alone, Defendants argue, “did not make
Plaintiff a prevailing party.” Id. at 5. Defendants further assert that the hearing officer’s order
that the parties convene to conduct a placement meeting for the 2008-09 school year “had
nothing to do with the relief sought by the Plaintiff, did not change the legal relationship between
the parties and did not confer prevailing party status upon the Plaintiff.” Id. at 6.
Plaintiff, in response, points to the HOD, Section VII (ORDER), paragraphs 1 and 3, as
evidence that she is the prevailing party. See Plf. Mot. at 5. She urges the Court to read
paragraphs 1 and 3 together, suggesting that the hearing officer’s finding that S.M. was denied a
FAPE due to inappropriate placement during the 2006-07 school year was a judgment in her
favor constituting a “‘material alteration in the legal relationship of the parties,’” and that the
hearing officer’s order to the parties to meet to determine appropriate placement for S.M. for the
2008-09 school year constituted judicial relief for the violation. Plf. Reply at 2 (quoting
Buckhannon Board & Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources,
532 U.S. 598, 604 (2001)).
In determining whether Plaintiff qualifies as a “prevailing party” for purposes of §
1415(i)(3)(B), this Court applies the standard articulated by the U.S. Supreme Court in
Buckhannon, 532 U.S. 598. See Alegria v. District of Columbia, 391 F.3d 262, 263 (D.C. Cir.
2004) (“In the absence of clear evidence that Congress intended the IDEA’s fee eligibility to be

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treated differently than other fee-shifting statutes, and specifically, to allow awards of attorneys’
fees for private settlements, we hold that appellants fail to overcome the presumption that
Buckhannon applies.”); District of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010)
(affirming denial of attorney fees on ground that petitioner was not “prevailing party” under
Buckhannon). Specifically, courts in this Circuit apply “‘a three-part test for determining
prevailing-party status: (1) there must be a “court-ordered change in the legal relationship” of the
parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial
pronouncement must be accompanied by judicial relief.’” Straus, 590 F.3d at 901 (quoting
Thomas v. National Science Foundation, 330 F.3d 486, 492-93 (D.C. Cir. 2003)).
The Court finds, and Defendants do not contest, that Plaintiff succeeded in obtaining a
judgment in her favor on the limited issue of S.M.’s placement during the 2006-07 school year;
she has, therefore, at least in part, satisfied prong two. See HOD at 10 (“Petitioner is awarded a
finding that DCPS denied Student a FAPE by failing to provide her with an appropriate
placement during SY[] 2006/07”).2 Merely obtaining a judgment in her favor is not enough,
however, without a court-ordered change in the legal relationship of the parties and an
accompanying award of relief, to make Plaintiff a prevailing party.
The D.C. Circuit has previously held that “a plaintiff is not a ‘prevailing party’ under a
fee-shifting statute simply by virtue of having ‘acquired a judicial pronouncement that the
defendant has violated the [law] unaccompanied by judicial relief.’” Thomas, 330 F.3d at 488

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The HOD makes equally clear, however, that the inappropriateness of S.M.’s placement during the 2006-07 school
year was the only claim for which judgment was entered in favor of Plaintiff. Id. (“In all other respects, Petitioner’s
October 15, 2008 Complaint is DISMISS[ED] ON THE MERITS, and its requests for relief therein are
DENIED.”). Plaintiff’s suggestion that the HOD implies a judgment in her favor on the question of the
appropriateness of S.M.’s placement during the 2008-09 school year is belied by the facts. Plaintiff urges the Court
to “ask why would the DCPS be ordered to convene a meeting to determine an appropriate placement if the Student
was appropriately placed by Defendants for the SY 2008/09.” Plf. Mot. at 5. But the HOD reveals that it was not
DCPS, but rather Plaintiff, who unilaterally placed S.M. in the Private School at the beginning of the 2008-09 school
year. It is thus Plaintiff’s placement of her daughter that the hearing officer found inappropriate. HOD at 9.

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(quoting Buckhannon, 532 U.S. at 606). Thomas arose from an agreement between the National
Science Foundation and Network Solutions, Inc. to collect fees for Internet registration services,
but required that 30% of those fees be deposited in a fund for future government use on Internet
projects. Id. Plaintiffs, Internet domain name registrants who had paid the fee, sued to enjoin
the NSF and NSI from spending any money in the fund and to recover restitution. Id. The court
awarded the plaintiffs a preliminary injunction and partial summary judgment on the ground that
the fees amounted to an unconstitutional “tax that was neither imposed nor ratified by Congress,”
but failed to award any money damages. Id. Before the court was able to render final judgment
or issue any specific relief, Congress ratified the registration fee, thereby mooting the claim. Id.
The plaintiffs sought attorney fees and costs under the Equal Access to Justice Act, 28 U.S.C. §
2412(d)(1)(A), but the court found, “This type of ‘judicial decree’ is not enough to warrant a fee
award . . . . A declaration must require ‘some action (or cessation of action) by the defendant
that the judgment produces – the payment of damages, or specific performance or the
termination of some conduct.’” Id. at 494 (quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)).
To the extent that other opinions in this district contain language that seemingly suggests
that a denial of a FAPE alone makes a plaintiff the prevailing party, see, e.g., Wilson v. District
of Columbia, 269 F.R.D. 8 (D.D.C. 2010); Artis, 543 F. Supp. 2d 15, not only is this not the law
of our Circuit, but these cases are also distinguishable because in both actual relief was granted.
Having determined that succeeding on prong two alone is not enough, the Court now
turns to prongs one and three. It is here that Plaintiff’s argument founders. A review of the
HOD makes clear that the hearing officer’s finding that S.M. was denied a FAPE during the
2006-07 school year was a pronouncement unaccompanied by a court-ordered change in the
parties’ legal relationship or judicial relief.

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First and foremost, the hearing officer expressly denied all of the forms of relief Plaintiff
sought at the hearing – e.g., the funding of various evaluations, the development of a
compensatory education plan, and the payment of tuition at the Private School. See Due Process
Complaint Notice at 5. The only conceivable relief awarded, therefore, was the requirement that
the parties convene a placement meeting.
Yet this requirement cannot constitute judicial relief in Plaintiff’s favor because this is
precisely the “relief” that would have been awarded had Defendants prevailed on the issue of a
FAPE. Plaintiff sought tuition reimbursement following her unilateral decision to enroll S.M. in
the Private School, but the hearing officer denied her claim. HOD at 10. Since she apparently
could not keep S.M. enrolled there without reimbursement, she had to meet with DCPS to come
up with another placement going forward. This is all that was ordered by the HOD. Thus the
convening of a placement meeting affords no judicial relief to Plaintiff; instead, it is a necessary
step so that both parties can move on from Plaintiff’s inappropriate placement of S.M. at the
Private School.
It should also be noted that, contrary to Plaintiff’s assertion, the hearing officer did not
order the placement meeting for the 2008-09 school year as relief for the 2006-07 improper
placement. Although S.M.’s improper placement in 2006-07 resulted in the denial of a FAPE for
that school year, this improper placement was remedied the following year when S.M. attended
the Charter. Id. at 9. S.M.’s appropriate placement at the Charter obviated the need for a
placement meeting in 2007-08. Id. The hearing officer explicitly rejected as waived Plaintiff’s
claim against the Charter for not holding a placement meeting for S.M. at the start of the 2008-09
school year before her enrollment in the Private School. Id.

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Finally, Plaintiff’s suggestion that she is a prevailing party because “she achieved the
desired result she sought in bringing the suit due to” the fact that “the due process hearing below
brought about a voluntary change in Defendants DCPS’ conduct” is without merit. Plf. Reply at
2. It is unclear what conduct DCPS changed. But even if the suit did change DCPS’s conduct,
Plaintiff describes the very “catalyst theory” that the Supreme Court rejected in Buckhannon.
See 532 U.S. at 600 (“The question presented here is whether th[e] term [‘prevailing party’]
includes a party that has failed to secure a judgment on the merits or a court-ordered consent
decree, but has nonetheless achieved the desired result because the lawsuit brought about a
voluntary change in the defendant’s conduct. We hold that it does not.”); Smith v. District of
Columbia, No. 03-7130, 2004 WL 2786389, at *1 (D.C. Cir. Dec. 3, 2004) (“the term ‘prevailing
party’ does not cover plaintiffs who merely catalyze government action”) (citing Buckhannon,
532 U.S. at 610). Similarly, where the parties settle before judicial relief is granted, or a case is
dismissed for mootness, prevailing-party status will not be conferred. Smith, 2004 WL 2786389
at *1 (“plaintiffs who settle IDEA cases before securing a decision in an administrative hearing
are not ‘prevailing parties’ entitled to fees”); Straus, 590 F.3d at 899 (affirming denial of
defendant’s attorney fees where plaintiff’s claims were dismissed as moot).
As Plaintiff has thus failed to establish that she was the prevailing party at the due
process hearing, she is not entitled to attorney fees under the IDEA.
IV.

Conclusion
The Court, therefore, ORDERS that:
1. Plaintiff’s Motion for Summary Judgment is DENIED;
2. Defendants’ Motion for Summary Judgment is GRANTED; and
3. The case is DISMISSED.

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SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 16, 2011

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