SCHOOL BOARD OF JACKSON COUNTY FLORIDA v. P L B et al

Filing 71

ORDER ON THE MERITS. The clerk must enter judgment stating, "This action was resolved on a motion for summary judgment. It is ordered that the plaintiff Jackson County School Board recover nothing. The claims against the defendants PLB and Rosemary Palmer are dismissed on the merits." The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 9/29/2015. (kjw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

JACKSON COUNTY SCHOOL BOARD,
Plaintiff,
v.

CASE NO. 5:12cv294-RH/EMT

PLB and ROSEMARY PALMER,
Defendants.
____________________________________/
ORDER ON THE MERITS
This is the next chapter in a long-running dispute between a school board
and a student with disabilities. The issue this time is the school board’s ability to
recover attorney’s fees for successfully defending an administrative proceeding
brought on behalf of the student. The governing standard is set out in the
Individuals with Disabilities Education Act (“IDEA”): the school board may
recover its fees if the administrative proceeding was pursued on grounds that were
“frivolous, unreasonable, or without foundation” or was pursued for “any improper
purpose.” 20 U.S.C. § 1415(i)(3)(B). Here the school board’s fee claim falls
short.

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I
The IDEA requires a school board to provide a free appropriate public
education that affords at least some educational benefit for a student with a
disability. See Bd. of Educ. v. Rowley, 458 U.S. 176, 200 (1982). The statute
creates a comprehensive procedural system for meeting that goal. Part of the
system is development of an individualized education program (“IEP”) for each
student with a disability. The student’s parents have a right to attend a meeting at
which the IEP is developed. When a student, ordinarily acting through one or both
parents, disagrees with an IEP, the student may obtain administrative review. In
Florida, this ordinarily means an evidentiary hearing before an administrative law
judge (“ALJ”) in the state’s Division of Administrative Hearings (“DOAH”).
This case involves a student with disabilities identified in this order as
“A.L.” The Jackson County School Board provided services to A.L., but
disagreements arose as early as A.L.’s seventh-grade year. In November 2010,
when A.L. was in the ninth grade, the School Board convened an IEP meeting that
his mother, identified in this order as “PLB,” did not attend. PLB, represented by
attorney Rosemary Palmer, petitioned for administrative review. This order refers
to the resulting administrative proceeding as DOAH 1. And the order describes
this (and all later administrative and judicial proceedings discussed in this order) as
brought by PLB, without distinguishing between those brought by PLB

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individually, by PLB on behalf of A.L., or by A.L. through PLB; for present
purposes, these distinctions make no difference.
An ALJ conducted a six-week evidentiary hearing in DOAH 1 that ended on
April 5, 2012. On the next day, April 6, PLB, again represented by Ms. Palmer,
served a new administrative petition, initially challenging the School Board’s
failure to convene another IEP meeting after November 2010 and eventually
challenging the School Board’s refusal to allow PLB to record a new IEP meeting.
This order refers to this proceeding as DOAH 2. The proceeding was assigned to
the same ALJ who was handling DOAH 1.
On June 15, 2012, the ALJ dismissed DOAH 2 for lack of jurisdiction,
ruling that under the IDEA’s “stay-put” provision, the School Board was required
to keep the prior IEP in place until the ongoing challenge to the November 2010
IEP was finally resolved. See 20 U.S.C. § 1415(j) (providing that “during the
pendency of any proceedings conducted pursuant to [the IDEA], unless the State or
local agency and the parents otherwise agree, the child shall remain in the thencurrent educational placement of such child . . . until all such proceedings have
been completed”). As authorized by the IDEA, PLB filed an action in this court
challenging the ALJ’s decision in DOAH 2. The court (through District Judge
Richard Smoak) dismissed the case and assessed fees against PLB. PLB appealed

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the dismissal, and the Eleventh Circuit affirmed. PLB separately appealed the fee
award. That appeal is still pending.
On December 27, 2012, the ALJ issued an order resolving DOAH 1 in the
School Board’s favor. PLB again filed an action in this court challenging the
decision. This court (again through Judge Smoak) ruled for the School Board.
PLB appealed. The appeal is still pending.
The School Board asserts it is entitled to recover from PLB and Ms. Palmer
the attorney’s fees the Board incurred in defending DOAH 2. The School Board
initially sought to recover the fees through a new DOAH proceeding, referred to in
this order as DOAH 3. The ALJ ruled for the School Board and awarded fees, but
the award was reversed on an appeal within the state court system, because the
IDEA provides that any such fee award must be made in an original proceeding in
federal district court. See 20 U.S.C. § 1415(i)(3)(B); Zipperer ex rel. Zipperer v.
Sch. Bd. of Seminole Cty., Fla., 111 F.3d 847, 851 (11th Cir. 1997). So the School
Board filed this action, naming PLB and Ms. Palmer as defendants.
The School Board moved for summary judgment. I entered an order under
Federal Rule of Civil Procedure 56(f)(3) giving notice that summary judgment
might be entered for or against the School Board. The case is ripe for a summaryjudgment ruling resolving the case on the merits.

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II
The IDEA allows an award of attorney’s fees in favor of a school board
against a parent or attorney who files or continues to pursue a claim against the
school board that is “frivolous, unreasonable, or without foundation” or that is
“presented for any improper purpose, such as to harass, to cause unnecessary
delay, or to needlessly increase the cost of litigation.” 20 U.S.C.
§ 1415(i)(3)(B)(i). The first part of this standard traces its roots to Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). And the first part of the
standard, if not also the second, is stringent. See, e.g., Johnson v. Florida, 348
F.3d 1334, 1354 (11th Cir. 2003) (citing Walker v. NationsBank of Fla., 53 F.3d
1548, 1558 (11th Cir. 1995)); see also Christiansburg, 434 U.S. at 422 (“Even
when the law or the facts appear questionable or unfavorable at the outset, a party
may have an entirely reasonable ground for bringing suit.”).
The controlling question here is whether the School Board has met this
standard. The answer is no.
The factual basis for the DOAH 2 petition was not only colorable but
correct. The School Board cancelled an IEP meeting in May 2011, citing the stayput provision. The School Board relented and scheduled new IEP meetings for
June and August 2011, but the School Board refused to go forward when PLB
insisted on recording the meetings. PLB plainly had a reasonable basis for her

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factual assertions in DOAH 2 that the School Board first refused to conduct a new
IEP meeting at all and then refused to allow PLB to record an IEP meeting.
The legal issues raised by the petition were and still are unsettled. When a
parent challenges a new proposed IEP, the preexisting IEP stays in place until the
challenge is resolved, “unless the [school board] and the parents otherwise agree.”
20 U.S.C. § 1415(j). Here, PLB challenged only part, not all, of the new proposed
IEP; one might reasonably say PLB and the school board agreed to the
unchallenged provisions. And in any event, nothing prevents a parent and school
board from continuing their efforts to find a plan acceptable to both sides. One
method by which a parent and school board can do this—one method by which
they may “otherwise agree” to change the existing IEP even while a challenge is
pending—is through a new IEP meeting. Or so a reasonable parent (and attorney)
could assert.
The statute does not explicitly require a school board to convene a new IEP
meeting in an effort to reach such an agreement while a challenge is pending, but
neither does the statute prohibit a new IEP meeting. PLB’s assertion that the
School Board was obligated to convene such a meeting was not frivolous,
unreasonable, or without foundation. And there is no reason to assert PLB made
the claim for an improper purpose; she made the claim to force a new IEP meeting,
with the goal of improving the School Board’s treatment of A.L.

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In asserting the contrary, the School Board relies on CP v. Leon Cty. Sch.
Bd., 483 F.3d 1151 (11th Cir. 2007). There, though, the school board conducted
itself much differently than did the School Board here. There the school board
continued to meet with CP’s mother in an effort to resolve the dispute, and the
school board changed the IEP in one respect (with CP’s mother’s agreement) while
the challenge to the IEP was pending. Here, in contrast, the School Board first
refused to meet with PLB at all, and then refused to allow her to record a meeting;
nothing like that occurred in CP. Perhaps this would change the CP result; perhaps
not. But it cannot be said that CP foreclosed PLB’s challenge to the School
Board’s failure to meet. Even more clearly, CP did not resolve the issue of PLB’s
right to record any IEP meeting.
This result would be the same without regard to, but the result draws further
support from, an additional circumstance. After the ALJ dismissed DOAH 2, the
School Board initiated yet another administrative proceeding, referred to in this
order as DOAH 4. The School Board sought a ruling that it could properly
prohibit PLB from recording a new IEP meeting. This court (again through Judge
Smoak) dismissed PLB’s challenge to the ruling in DOAH 2 for failure to exhaust
administrative remedies, reasoning that federal-court review was premature before
the ALJ ruled in DOAH 4. That a federal court refused to address the issue of a
parent’s right to record an IEP meeting until an administrative ruling on the issue

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confirms that PLB had a reasonable basis for raising the issue administratively: to
avoid an exhaustion defense. In light of the real possibility that the School Board
would assert and a court would recognize an exhaustion defense, it is hard to
characterize PLB’s pursuit of an administrative proceeding as frivolous,
unreasonable, or without foundation, or to question her motive for filing the
proceeding.
III
One further point deserves mention. PLB served DOAH 2 the day after the
six-week evidentiary hearing in DOAH 1 ended. This could not have engendered a
positive response from the School Board or the ALJ. Both might have preferred to
resolve the parties’ entire dispute in a single proceeding. But the events challenged
in DOAH 2 occurred (at least in substantial part) after PLB filed the petition in
DOAH 1. PLB could have moved to amend her DOAH 1 petition to raise the new
issues, and the ALJ might have granted the motion. But under Florida law, PLB
was not obligated to amend; she was free to file a new petition. And under Florida
law, the ALJ would not have been required to grant leave to amend. See, e.g.,
Pilla v. Sch. Bd. of Dade Cty., 655 So. 2d 1312, 1314 (Fla. 3d Dist. App. 1995)
(upholding a DOAH ALJ’s denial of leave to amend and noting that in a DOAH
proceeding, a “petitioner may amend its petition after the designation of the
presiding officer only upon order of the presiding officer”) (quoting Beckum v. Fla.

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Dep’t of Health & Rehabilitative Servs., 443 So.2d 227, 228 n. 3 (Fla. 1st DCA
1983)). That PLB chose to initiate a second proceeding rather than seeking leave
to amend in the first is not a basis for awarding attorney’s fees against her.
It is true, also, that Ms. Palmer’s conduct of DOAH 2 and the other
proceedings left much to be desired. That the School Board has lost patience is
understandable. But PLB’s pursuit of DOAH 2 as a whole was not frivolous,
unreasonable, or without foundation. Nor can it be said that she pursued the
proceeding for any purpose other than to bring about what she believed would be
better treatment of A.L. The School Board is not entitled to recover the fees it
incurred successfully defending DOAH 2.
IV
For these reasons,
IT IS ORDERED:
1. The clerk must enter judgment stating, “This action was resolved on a
motion for summary judgment. It is ordered that the plaintiff Jackson County
School Board recover nothing. The claims against the defendants PLB and
Rosemary Palmer are dismissed on the merits.”
2. The clerk must close the file.
SO ORDERED on September 29, 2015.
s/Robert L. Hinkle
United States District Judge
Case No. 5:12cv294-RH/EMT