Department of Education, State of Hawaii v. B. et al

Filing 89

ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANTS' MOTION DETERMINING DEFENDANTS AS PREVAILING PARTY AND FOR AN AWARD OF ATTORNEYS' FEES AND COSTS re 80 ; 81 - Signed by CHIEF JUDGE SUSAN OKI MOLL WAY on 2/26/13. "For the foregoing reasons, the court adopts the F&R without modification. Defendants are awarded $22,291.61 in attorney's fees and $426.59 in costs, for a total award of $22,718.20." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DEPARTMENT OF EDUCATION, )
STATE OF HAWAI’I,
)
)
)
Plaintiff,
)
vs.
)
)
C.B., by and through his )
parents DONNA and SCOTT )
B.,
)
)
)
Defendants.
________________________ )

Civ. No. 11-00576 SOM/RLP
ORDER ADOPTING FINDINGS AND
RECOMMENDATION TO GRANT IN
PART AND DENY IN PART
DEFENDANTS’ MOTION
DETERMINING DEFENDANTS AS
PREVAILING PARTY AND FOR AN
AWARD OF ATTORNEYS’ FEES AND
COSTS

ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT IN PART AND
DENY IN PART DEFENDANTS’ MOTION DETERMINING DEFENDANTS AS
PREVAILING PARTY AND FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS
Before the court are objections by Plaintiff Department
of Education (“DOE”) to the Magistrate Judge’s Findings and
Recommendation To Grant in Part and Deny in Part Defendants’
Motion Determining Defendants as Prevailing Party and for an
Award of Attorneys’ Fees and Costs (“F&R”).

This court overrules

the DOE’s objections and adopts the F&R.
Defendant C.B. is an autistic minor who is qualified to
receive special education and related services under the
Individuals with Disabilities Education Improvement Act of 2004
(“IDEA”).

After an administrative hearings officer (“AHO”)

determined that the DOE had violated the IDEA by denying C.B. a
free and appropriate public education (“FAPE”), the DOE appealed
the AHO’s decision to this court.

This court reversed the AHO.

An ancillary dispute arose as to the application of the “stay

put” provision of the IDEA.

This court ruled that C.B. and

C.B.’s parents (collectively, “Defendants”) were entitled to the
benefit of the “stay put” provision.

Defendants thereafter

sought their fees and costs, and the F&R recommended an award of
some of the fees and costs sought.

The DOE’s objections to the

F&R are premised on the argument that Defendants do not have
“prevailing party” status and therefore are not entitled to
recover any fees and costs.

This court disagrees with the DOE

and adopts the F&R in its entirety.
I.

Statutory Framework.
The “stay put” provision of the IDEA is designed to

keep disruption to a child’s education to a minimum.

The

provision permits a child to “stay put” in the child’s existing
educational placement while administrative or judicial
proceedings pursuant to the IDEA are pending.
§ 1415(j); 34 C.F.R. § 300.518(a), (d).

See 20 U.S.C.

The “stay put” provision

states:
Except as provided in subsection (k)(4),
during the pendency of any proceedings
conducted pursuant to this section, unless
the State or local educational agency and the
parents otherwise agree, the child shall
remain in the then-current educational
placement of the child, or, if applying for
initial admission to a public school, shall
with the consent of the parents, be placed in
the public school program until all such
proceedings have been completed.
20 U.S.C. § 1415(j).

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As interpreted by the Ninth Circuit, the “stay put”
provision requires a school district to fund the child’s “current
educational placement” at a private school while either
administrative or judicial proceedings are occurring under the
IDEA.

See Clovis Unified Sch. Dist. v. Cal. Office of Admin.

Hearings, 903 F.2d 635, 641 (9th Cir. 1990)(per curiam).
A “current educational placement” is “the placement set
forth in the child’s last implemented” Individualized Education
Program (“IEP”).

L.M. v. Capistrano Unified Sch. Dist., 556 F.3d

900, 902-03 (9th Cir. 2009).

Even if not set forth in an IEP, a

child’s school may be deemed the child’s “current educational
placement” by an administrative hearings officer or a court that
finds that the school the child is attending is appropriate under
the IDEA.

Thus, the Ninth Circuit has said, “Where a parent

unilaterally changes the placement of a child, but a subsequent
administrative or judicial decision confirms that the parental
placement is appropriate, . . . the placement becomes the
‘current educational placement’ for the purposes of the stay put
provision.”

K.D. ex rel. C.L. v. Dept. of Educ., Hawaii, 665

F.3d 1110, 1118 (9th Cir. 2011).

“However, such a favorable

decision for a parent must expressly find that the private
placement was appropriate.”
II.

Id.

Factual and Procedural Background.
The background of this case is set forth in detail in

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the F&R.

In summary, C.B. and his parents challenged the

adequacy of an IEP.

Following a hearing, the AHO agreed with

C.B. and his parents that the DOE had violated the IDEA, and the
DOE appealed to this court.

This court reversed the AHO on the

issue of whether the DOE had violated the IDEA, but treated
separately the issue of whether, under the “stay put” provision,
the DOE had to pay the costs of C.B.’s attendance at Autism
Management Services (“AMS”), a private institution.
argued vigorously and repeatedly to the contrary.

The DOE

This court,

following receipt of clarification from the AHO on this point,
determined that AMS was C.B.’s “current educational placement”
and ordered the DOE to pay the costs of C.B.’s attendance at AMS.
With that ruling in hand, Defendants filed a Motion To
Determine Defendants as Prevailing Party and for an Award of
Attorneys’ Fees and Costs (“Motion”).

ECF No. 66.

The Motion

argued that Defendants were the “prevailing party” for purposes
of the “stay put” provision and were therefore entitled to an
award against the DOE for attorney’s fees in the amount of
$54,821.97, and costs in the amount of $566.94.

Id. at 2.

Defendants argued that, even though they had not prevailed on the
issue of whether the DOE had violated the IDEA, they should be
treated as having prevailed “as to the significant issue of stay
put.”

Id. at 11.

C.B. argued:

Even if Student is not a prevailing party as
to his other claims, such as reimbursements
4

related to a ruling of a denial of FAPE,
Student is entitled to have the DOE pay for
efforts to obtain stay-put protection because
the DOE refused to fulfill its obligation
from the beginning of appeals. Parents were
forced to pay for the placement, and Student
was forced to litigate for protection that
should have been given without the need for
litigation . . . . The effect of stay-put
protection is to provide funding for Student
while his appeals are pending, which in and
of itself, as the Ninth Circuit has
determined, is a significant issue. It is
the DOE’s obligation to pay for the stay-put
placement, not Parents’, and the breach of
that obligation should be remedied by forcing
the DOE to compensate Parents and pay for
their effort to secure stay-put protection.
Student here should be reimbursed his
attorney’s fees because he is the prevailing
party on the significant issue of stay-put
protection.
Id. at 15-16.
In addition, Defendants argued that, in granting C.B.
“stay put” protection, the court “required the State to stop
refusing to reimburse Student.”

Id. at 18.

C.B. contends that

he “could therefore be deemed to have changed the status quo, not
because Student maintained his placement but because he forced
the DOE to stop refusing to reimburse him, or in other words, he
changed the legal relationship between the parties.”
19.

Id. at 18-

Defendants urged the Magistrate Judge to treat them as

having prevailed by virtue of having “quashed the DOE’s refusal
to reimburse [them] for stay-put educational expenses related to
[C.B.’s] stay-put placement.”

Id. at 19.

The Magistrate Judge was persuaded by C.B.
5

The F&R

reasoned:
The court finds that Parents are
entitled to their attorneys’ fees as
prevailing parties under the IDEA. In this
case, Parents’ counterclaim and countermotion for stay put recognition resulted in a
material alteration of the legal relationship
between Parents and the DOE. Specifically,
C.B. remained at AMS during the pendency of
this dispute, AMS was determined to be C.B.’s
current educational placement for stay-put
purposes, and the DOE was ordered to fund
C.B.’s placement at AMS during the pendency
of any proceedings relation to the October
28, 2010 IEP under 20 U.S.C. § 1415(j.)
Moreover, unlike typical stay put cases,
stay put protection for C.B. was not
“automatic” or a matter of simply preserving
the status quo. To the contrary, from the
outset of the litigation, DOE refused to
reimburse Parents for C.B.’s tuition at AMS.
Indeed, even after the Court denied the DOE’s
motion for preliminary injunction, the DOE
persisted in contesting the applicability of
the stay put provision, arguing in its
opposition to Parents’ counter-motion that
“stay put does not apply because AMS is not
the current educational placement for stay
put purposes.” ECF No. 36, at 3. As a
result, the Court had to determine that
C.B.’s current educational placement was, in
fact, AMS before the Court could preserve it
as the status quo placement.
In similar cases where the issue of
whether stay put applied was substantively
disputed by the school district, other courts
have concluded that an award of attorneys’
fees was warranted. See, e.g., K.R. ex rel.
M.R. v. Bd. of Educ. of Brentwood Union Free
Sch. Dist., 66 F. Supp. 2d 444, 450 (E.D.N.Y.
1999) (“Although enforcement of the IDEA’s
stay-put provision ordinarily amounts to no
more than preservation of the status quo,
where the petition also seeks a substantive
determination of which educational placement
6

should be applied under the stay-put
provision, the petitioner has requested
relief on the merits.”) (internal quotation
marks omitted); Bayonne Bd. of Educ. v. R.S.
ex rel. K.S., 954 F. Supp. 933, 943 (D.N.J.
1997) (attorneys’ fees awarded where court
made a substantive determination of which
educational placement should be applied under
stay-put provision in light of terms of
settlement agreement); Student X v. N.Y.C.
Dep’t of Educ., No. 07-2316, 2008 WL 4890440,
at *27 (E.D.N.Y. Oct. 30, 2008) (“Plaintiff
did not seek merely to maintain the status
quo, but litigated a substantive dispute over
which placement applied.”); Burke ex rel.
Burke v. Keenum, No. 288-067, 1989 WL 14681,
at *3 (S.D. Ga. Feb. 21, 1989)(“determination
of the status quo issue constitutes a final
judgment on the merits of plaintiffs’
claim”).
F&R at 10-12.
The F&R then evaluated the request for fees for C.B.’s
counsel.

C.B.’s counsel requested $54,821.97 in attorney’s fees,

which the F&R reduced to $22,291.61, and $426.59 in costs, for a
total award of $22,718.20.

Id. at 30.

In arriving at this

determination, the F&R adjusted the reasonable hourly rate for
C.B.’s counsel, and reduced the numbers of hours reasonably
expended after eliminating double billing and clerical or
ministerial tasks.

Id. at 20-27.

In addition, the F&R reduced

C.B.’s counsel’s requested fees by 50%, reasoning that about half
of the fees had been spent on the issue of whether the DOE had
violated the IDEA.

The F&R said, “Defendants did not prevail on

the ultimate issue of whether C.B. was denied a FAPE.

Defendants

did, however, secure stay put recognition, and the DOE was
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ordered to fund C.B.’s placement at AMS during the pendency of
any proceedings relating to the October 28, 2010 IEP.”

Id. at

28.
III.

STANDARD OF REVIEW.
The court reviews de novo those portions of an F&R to

which an objection is made.

28 U.S.C. § 636(b)(1); Fed. R.

Civ.P. 72(b); Local Rule 74.2.

The district court may accept

those portions of the F&R that are not objected to if it is
satisfied there is no clear error on the face of the record.
Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).
IV.

ANALYSIS.
The DOE’s primary objection is that Defendants are not

the “prevailing party” for the purposes of this administrative
appeal.

Contending that a “prevailing party” must prevail on the

merits of a dispute, the DOE focuses on this court’s reversal of
the AHO’s decision that the DOE had violated the IDEA.

Obj. at

2-3.
Under the IDEA, a “prevailing party” must achieve
success in a manner that “materially alter[s] the parties’ legal
relationship.”

P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165,

1171 (9th Cir. 2007).

The DOE is correct in noting that, in the

normal course, establishing entitlement to “stay put” protection
does not give rise to entitlement as a “prevailing party” to
recover attorney’s fees.

This general rule, however, is not
8

absolute.
In Termine ex rel. Termine v. William S. Hart Union
High School District, 288 Fed. Appx. 360 (9th Cir. 2008), the
Ninth Circuit affirmed the district court’s ruling that the
parents of a child entitled to services under the IDEA were
entitled to attorney’s fees as the “prevailing party” in a case
seeking “stay put” benefits.

The parents had challenged a

special education placement offered to their child, and, in a
separate federal district court action, had alleged that the
school district was required by the “stay put” provision to
“maintain” their daughter “in her then-current non-public school
placement pending the outcome of the due process hearing.”
at 362.

Id.

The Ninth Circuit noted: “The district court did not

abuse its discretion in holding that the Termines were the
prevailing parties in the stay-put case . . . . [T]he Termines
achieved relief that changed the legal relationship between the
parties with respect to a significant issue, and also
successfully invalidated Hart’s argument regarding the stay-put
placement.”

Id.

This court, viewing the present case as raising the
very issues raised in Termine, agrees with the F&R that
Defendants are entitled to their attorneys’ fees and costs as
“prevailing parties” under the IDEA.

See F&R at 10.

The DOE relies on inapposite authorities in arguing

9

that prevailing on a “stay put” issue cannot entitle a party to
attorney’s fees and costs.

For example, the DOE makes an

unavailing reference to Department of Education v. M.F., 2012 WL
2415525 (D. Haw. May 31, 2012).

In that case, Judge J. Michael

Seabright of this district adopted the Magistrate Judge’s
Findings and Recommendation That Defendant’s Motions for
Attorneys’ Fees and Costs Be Denied.

While the Magistrate Judge

had recommended that the district judge deny the student’s motion
for attorney’s fees and costs relating to “stay put” benefits,
the DOE had not disputed “that it could not change M.F.’s
placement during the pendency of these proceedings.”

Id., at *2.

That is, the DOE had not disputed its obligation under the “stay
put” provision.

It disputed only the dates to which the “stay

put” provision applied.

The court noted that the student “did

not prevail on the disputed issues regarding stay put relief, and
therefore is not a prevailing party on those grounds.”

Id.

By contrast, in the present case, the DOE vigorously
contended that the “stay put” provision did not apply at all and
declined to pay any “stay put” benefits.

When this court ordered

payment of “stay put” benefits, C.B. and C.B.’s parents became
“prevailing parties” on the disputed issues regarding “stay put”
relief.

This case is therefore easily distinguishable from M.F.
This court also finds inapposite decisions by the Third

and Seventh Circuits that the DOE relies heavily on.

10

In J.O. v. Orange Township Board of Education, 287 F.3d
267 (3d Cir. 2002), the Third Circuit affirmed the district
court’s decision denying attorney’s fees to a mother who
successfully argued that her son had to be allowed to attend a
public school notwithstanding his behavioral difficulties.

The

school had sought to have the student home-schooled pending a
determination of an appropriate educational placement.

The Third

Circuit did not rule that “stay put” relief could never give rise
to an award of attorney’s fees.

The Third Circuit instead said,

“Although parents who achieve favorable interim relief may be
entitled to prevailing party attorney’s fees as long as the
interim relief granted derived from some determination on the
merits, the District Court neither erred nor abused its
discretion in denying the award of fees in this case.”

Id. at

274.
C.B.’s receipt of “stay put” benefits “derived” from a
favorable decision by the AHO on the merits of C.B.’s challenge
to an IEP.

A corresponding award of attorney’s fees to

Defendants therefore does not run afoul of the reasoning in J.O.
Nor does the reasoning in Board of Education of Oak
Park v. Nathan R., 199 F.3d 377 (7th Cir. 2000), also cited by
the DOE, necessarily militate against an award of fees to C.B.
and C.B.’s parents.

In Nathan R., the Seventh Circuit affirmed a

district court’s decision declining to award attorney’s fees to

11

parents who claimed to have prevailed on a “stay put” dispute.
That case involved a disabled student who was expelled from his
public high school for possession of marijuana.

The school

offered to provide “alternative non-special education services
during the period of his expulsion.”

Id. at 379.

The “stay put”

issue went to whether the student had to be allowed to attend the
public school pending the outcome of proceedings challenging the
expulsion.
In administrative proceedings, the school was initially
ordered to take the student back.

That order was followed by an

administrative determination that the expulsion was appropriate
but that the school had to provide the student with special
education services during his expulsion.

The district court

reversed, ruling that the school did not need to provide special
education services because the student had been expelled for
reasons unrelated to his disability.

During the time the dispute

was making its way through the administrative and district court
proceedings, the student attended the public school pursuant to
the “stay put” provision, ultimately graduating.

When the issue

of whether special education services had to be provided during
expulsion reached the Seventh Circuit, the appellate court ruled
that the issue was moot because the student had graduated.
What the Seventh Circuit said was not moot, however,
was the parents’ claim for attorney’s fees in connection with

12

having prevailed on the “stay put” issue.

The Seventh Circuit

affirmed the district court’s ruling denying the parents
attorney’s fees, noting that the parents had not obtained an
“enforceable judgment, consent decree, or settlement that
materially alter[ed] the relationship between the parties.”
at 382.

Id.

The Seventh Circuit also said that the parents had

obtained only interim relief, “and this circuit previously has
held that the receipt of interim relief does not qualify a party
for attorneys’ fees.”

Id.

Finally, the Seventh Circuit said,

“Indeed, we also have stated explicitly that invocation of the
stay-put provision of the IDEA does not entitle the party to
attorneys’ fees.”

Id.

In contrast to the parents in Nathan R., Defendants in
the present case obtained an order requiring a school district to
pay for private tuition.

Because such a ruling is akin to a

money judgment, the “stay put” ruling case is more readily
characterized as an “enforceable judgment” materially altering
the parties’ relationship than the “stay put” order in Nathan R.
requiring the public school to take Nathan R. back.
In the present case, as the Magistrate Judge observed,
“the DOE elected to actively litigate the issue and withhold
payment from Parents for nearly ten months.”

F&R at 12.

Defendants expended considerable time and effort in that
connection.

13

This court is taken aback by the DOE’s present protest
that its actions flowed from what it calls “the ambiguity of the
AHO’s decision.”

Obj. at 8, ECF No. 81.

The DOE says:

As this Court is aware, the case of L.M. v.
Capistrano, 556 F.3d 900 (9th Cir. 2008)
called into question the application of “stay
put” in instances where the hearings officer
finds that a private placement is appropriate
for “reimbursement” purposes yet fails to
specifically find that the private placement
is appropriate for “stay put” purposes.
Here, this Court recognized its potential
application to this case as the AHO only
stated appropriateness within the context of
reimbursement; that is why this Court, sua
sponte, remanded it to the AHO to clarify the
decision. Defendant did not request that it
be remanded, and did little, if anything, to
establish AMS as the “current educational
placement.” Establishment of “stay put” was
based solely on the AHO’s clarification and
remand order.
Plaintiff DOE should not be penalized
for the AHO’s lack of clarity and its effect
on the determination of the “current
educational placement” for “stay put”
purposes.
Id. at 9.

There are two problems with the DOE’s argument that an

award of attorney’s fees and costs against it is unfair because
it was the AHO decision that lacked clarity.
First, the DOE is a latecomer to the view that the
AHO’s decision was ambiguous.

Although the DOE’s recognition is

better late than never, that recognition comes after months
during which the DOE unrelentingly contended that there was no
ambiguity at all in the AHO’s position.

14

Thus, for example, in

prior proceedings before this court, the DOE said, “[T]he AHO’s
finding of appropriateness was limited solely to the issue of
reimbursement.

Without a clear determination of appropriateness

of placement, AMS cannot be deemed student’s ‘current educational
placement’ and that ‘stay put’ does not apply here.”
Dismiss Defendants’ Counterclaims at 9, ECF No. 15.

Motion To
It is

incongruous for the DOE to seek relief now on the ground that it
so vehemently denied for so long.

It was that very denial that

drove up Defendants’ attorney’s fees.

Had the DOE conceded that

the AHO’s ruling was ambiguous, it could have sought
clarification even before any party appealed to this court.
Second, the DOE appears to be saying that the party
that should bear the burden of the ambiguity in the AHO’s
decision is C.B.!

Because this court has determined that C.B.

was correct with respect to what the AHO had intended in
connection with the “stay put” provision, the DOE’s “burden
shifting” makes little sense to this court.
This court agrees fully with the Magistrate Judge’s
determination that Defendants have “prevailing party” status.
Having also reviewed the Magistrate Judge’s careful and
detailed analysis regarding the amount of fees and costs that
should be awarded, this court also adopts the calculations in the
F&R, which the DOE has not challenged on this appeal.

15

V.

CONCLUSION.
For the foregoing reasons, the court adopts the F&R

without modification.

Defendants are awarded $22,291.61 in

attorney’s fees and $426.59 in costs, for a total award of
$22,718.20.
IT IS SO ORDERED.
DATED: Honolulu, February 26, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
DEPARTMENT OF EDUCATION, STATE OF HAWAII v. C.B., by and through
his parents DONNA and SCOTT B., Civ No. 11-00576 SOM/RLP; ORDER
ADOPTING FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN
PART DEFENDANTS’ MOTION DETERMINING DEFENDANTS AS PREVAILING
PARTY AND FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS

16