S. v. Board of Education of Oldham County
Filing
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MEMORANDUM OPINION granting 9 MOTION for Attorney Fees and 15 Motion to Amend/Correct; Signed by Senior Judge Thomas B. Russell on 9/2/15: Plaintiff may recover $23,305.20 in attorneys' fees.The Court will issue a separate order and judgment. cc: Counsel (DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00040-TBR
B.S., by and through
his next friends, C.S. and S.S., his parents
PLAINTIFFS
v.
BOARD OF EDUCATION OF
OLDHAM COUNTY SCHOOLS
DEFENDANT
MEMORANDUM OPINION
This matter comes before the Court upon Plaintiff’s motion for attorney fees. (Docket
#9). Defendant has responded. (Docket #13). Plaintiff has replied. (Docket #14). Plaintiff has
also filed a motion to amend his request for attorneys’ fees. (Docket #15). Defendants have
responded. (Docket #16). Plaintiff has replied. (Docket #17). The Court being sufficiently
advised, for the following reasons, Plaintiff’s motions for attorneys’ fees (Docket #9, 15) will be
GRANTED.
BACKGROUND
Plaintiff B.S. is a student who struggles with social and learning difficulties. Defendant
Board of Education of Oldham County, Kentucky (the “Board”) is the education agency
encompassing the school system which Plaintiff attends. This action follows a Due Process
Hearing in which Plaintiff requested the Board provide a Free and Appropriate Education
(“FAPE”) in accordance with 34 CFR 300.101 and 707 KAR 1:290 (2015). The hearing officer
found in favor of Plaintiff in part and against Plaintiff in part. Both parties appealed. The
Exceptional Children’s Appeal Board affirmed in part and reversed in part. Plaintiff now
requests attorneys’ fees as the prevailing party pursuant to 34 CFR 300.517(c) and 20 U.S.C.
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§1415(3). The Board argues Plaintiff’s request should be denied because the Board prevailed on
the majority of issues and also tendered an offer of judgment to Plaintiff which exceeded
Plaintiff’s final award.
Plaintiff was adopted as an infant from the Republic of Georgia. Plaintiff has “a long
history of social skills deficits, anxiety, and behavioral issues, as well as delays in development
of gross motor skills, and academic difficulties, going back at least as far as kindergarten.”
(Docket #1-2). Plaintiff was evaluated at age seven and found to have average nonverbal
reasoning skills but low average verbal functioning and spatial processing scores. Plaintiff
exhibited signs of aggression and defiance that would reoccur.
The following year both an Individual Education Program (“IEP”) and Behavior
Intervention Plan (“BIP”) were formulated for Plaintiff. The hearing officer criticized the IEP
and BIP for failing to set clear guidelines and emphasizing proper behavior over social skills
training. (Docket #1-2). After Plaintiff was diagnosed with a speech and language impairment
the IEP was amended to address these concerns. Plaintiff’s fourth grade teachers reported that
Plaintiff was progressing in language skills, but “was still reading at the 2.7 grade level.”
(Docket #1-2).
An IEP was developed for Plaintiff’s fifth grade year which set clear goals for
improvement in language skills, social interaction, and behavior. The BIP was also revised to
address social interaction development. The IEP and BIP were revised throughout the year to
provide additional measurable goals. Plaintiff still continued to struggle with behavior, including
making sexual comments. Plaintiff began receiving additional adult supervision. During fifth
grade, Plaintiff was suspended and attended court proceedings and subsequently transferred to a
new school within the Board’s district. While Plaintiff had previously spent full time in a regular
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classroom, at the new school Plaintiff was transferred full time to the special classroom. A new
BIP was formulated to address Plaintiff’s inappropriate language and sexual comments. (Docket
#1-2).
Plaintiff was home schooled for the fall semester of his sixth grade year. Plaintiff
returned to public school in the spring, but after several weeks was suspended and Child
Protective Services was contacted because of Plaintiff’s behavior. Plaintiff was transferred to a
new school due to safety concerns for another student. Plaintiff was suspended several more
times for profanity, pornography, aggressive behaviors towards students, and threats made to the
staff. (Docket #1-2). In May, 2013, upon the recommendation of Plaintiff’s treating physician,
Plaintiff spent the remainder of the school year at home.
In the summer of 2013 Plaintiff was evaluated by Dr. Ronald Federici. Federici
diagnosed Plaintiff with several learning disorders, a low average intelligence, and motor and
sensory impairments. Federici opined that Plaintiff’s disabilities were caused by “unspecified
high risk pre- and post-natal factors which have affected brain grown and development.”
(Docket #1-2).
Plaintiff returned to public school for seventh grade. In November, 2013, Plaintiff’s
parents informed the Board of their dissatisfaction with the IEP and enrolled Plaintiff at the
Bluegrass Autism Center.
Plaintiff was enrolled at Bluegrass Autism Center at the time of the hearing officer’s
decision. Plaintiff brought ten issues before the hearing officer. The hearing officer found in
favor of Plaintiff on two issues, awarding Plaintiff a functional behavioral assessment and two
years of compensatory education. (Docket #1-2). Both parties appealed.
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The Exceptional Children’s Appeals Board (“Appeals Board”) affirmed the hearing
officer’s decision that Plaintiff had been deprived of two years of Free and Appropriate Public
Education (“FAPE”). (Docket #1-3). The Appeals Board found the IEP was deficient for failing
to provide more individualized instruction. The Appeals Board also found a functional
behavioral assessment (“FBA”) should have been performed and required an FBA to be
performed by an independent, board-certified behavioral analyst. The Appeals Board also
ordered an IEP to be crafted after the FBA had been performed.
The hearing officer found the Board had no obligation to evaluate the Plaintiff for autism;
Plaintiff could not recover for failure to adequately train staff; Plaintiff could not be reimbursed
for the Federici evaluation; Plaintiff could not be reimbursed for attending Bluegrass Autism
Center; and there was insufficient evidence to require an assistive technology evaluation.
(Docket #1-2). The Appeals Board affirmed these findings. (Docket #1-3).
Plaintiff now requests attorneys’ fees for these proceedings.
STANDARD
The Individuals with Disabilities Education Act (IDEA) “requires state and local
educational agencies to establish procedures to assure that children with disabilities and their
parents are guaranteed certain procedural safeguards with respect to the provisions of a free
appropriate public education.” Fischer v. Rochester Community Schools, 780 F. Supp. 1142,
1145 (E.D. Mich. 1991). “In any action or proceeding brought under [IDEA], the court, in its
discretion, may award reasonable attorneys’ fees” to a prevailing party. 20 USCS
§1415(i)(3)(B).
A prevailing party is “a party who has succeeded on any significant issue in litigation
which achieves some of the benefit the party sought in bringing the action.” Fischer, 780 F.
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Supp. At 1149 (quoting Angela L. v. Pasadena Independent School District, 918 F.2d 1188 (5th
Cir. 1990)). A plaintiff is not required to succeed on all claims. Farrar v. Hobby, 506 U.S. 103
(1992); see also Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989).
Instead, “a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the
legal relationship between the parties by modifying the defendant's behavior in a way that
directly benefits the plaintiff.” Id. at 111; Hall v. Detroit Pub. Sch., 823 F. Supp. 1377, 1381
(E.D. Mich. 1993).
DISCUSSION
The parties do not dispute that Plaintiff qualifies as a prevailing party. Plaintiff was
awarded a functional behavioral assessment (“FBA”) and two years of compensatory education
and thereby succeeded on a material issue. Instead, the Board argues Plaintiff’s claim for
attorneys’ fees should be denied because the Board tendered an offer of judgment that was more
favorable than Plaintiff received. Alternatively, the Board argues Plaintiff’s attorneys’ fees
should be reduced because Plaintiff prevailed on only two of ten claims. The Court will first
address (I) the offer of judgment; then (II) the reduction of attorneys’ fees.
I.
Offer of Judgment.
A prevailing party who would qualify for attorneys’ fees may nevertheless be prohibited
from receiving attorneys’ fees if the opposing party made an offer of judgment, the prevailing
party rejected that offer, and the prevailing party failed to obtain relief more favorable than the
offer of judgment. 20 U.S.C. § 1415(i)(3)(D)(i); Woods v. Northport Pub. Sch., 2011 U.S. Dist.
LEXIS 35330 *63-64 (W.D. Mich. 2011) (denying Plaintiffs’ request for attorneys’ fees for
work performed after Defendants’ offer of settlement). Notwithstanding this rule, a prevailing
party who rejected an offer of settlement that was ultimately superior to the prevailing party’s
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recovery may still receive attorneys’ fees if the prevailing party was “substantially justified in
rejecting the settlement offer.” 20 U.S.C. § 1415(i)(3)(E).
In this case, the Board argues that its March 2, 2014 offer of judgment was superior to the
relief ultimately received by Plaintiff. (Docket #13). In response, Plaintiff argues he was
substantially justified in rejecting the Board offer and was awarded two years of compensatory
education, relief which the Board had not offered. (Docket #14).
The Court agrees that Plaintiff was substantially justified in rejecting the Board’s offer.
The Board’s offer included an independent OT assessment; a functional behavior assessment
(“FBA”); a revised behavioral intervention plan; specialized curriculums for addressing
Plaintiff’s speech, math, and social skills; transportation to and from school; and $4,000 in
attorneys’ fees. (Docket #13-2). While this is a significant offer, Plaintiff ultimately prevailed in
showing that Plaintiff had been denied a Free and Appropriate Education (“FAPE”) and was
awarded two years of compensatory education in addition to an FBA and other relief. (Docket
#13-4). Accordingly, the Court finds that Plaintiff was substantially justified in rejected the
Board’s offer. See Gross v. Perrysburg Exempted Vill. Sch. Dist., 306 F. Supp. 2d 726, 734-35
(N.D. Ohio 2004).
II.
Reduction of Attorneys’ Fees.
As an initial matter, the Board objects to a $500 fee that Plaintiff charged for “Courtappearance-Juvenile” on August 6, 2013. The Board states there were no proceedings which
took place on that date. (Docket #13). In response, Plaintiff states that counsel was “consulted
by the Parents concerning the Oldham Family Court matter, but did not attend the Court
proceedings.” (Docket #14). The Court finds this is too far removed from the underlying
proceedings and this charge is disallowed.
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The Board does not contest Plaintiff’s counsel’s remaining charges or the hourly rate
charged by Plaintiff’s counsel. Instead, the Board argues that Plaintiff’s attorneys’ fees should
be reduced because Plaintiff prevailed on only two out of ten claims. (Docket #13).
“A district court has discretion to award attorney fees based on the facts of each case.”
Gross, 306 F. Supp. 2d at 730. Courts have rejected a pure mathematical approach to reducing
attorneys’ fees based on the percentage of claims won. K.L. v. Scott County Schs., 2007 U.S.
Dist. LEXIS 47190 *7 (E.D. Ky. 2007) (Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)).
Instead, “the district court should focus on the significance of the overall relief obtained.”
Hensley, 461 U.S. at 435. A full fee may be awarded if the Plaintiff obtained “excellent results,”
but may be reduced if the Plaintiff “achieved only partial or limited success.” Gross, 306 F.
Supp. 2d at 731 (quoting Hensley, 461 U.S. at 437-38).
The Court finds that although Plaintiff succeeded on only two claims, these two claims
are the most significant claims asserted. First, Plaintiff succeeded in showing that Plaintiff was
denied a Free and Appropriate Education and was therefore awarded two years of compensatory
education. Second, Plaintiff was awarded a formal functional behavioral assessment, “performed
by a qualified independent behavioralist,” which the Exceptional Children Appeals Board found
“should have been performed by the School itself earlier in the Student’s matriculation.”
(Docket #13-4). The eight claims on which Plaintiff did not succeed are ancillary to these
claims. Those claims are:
failure to evaluate the student in all areas of suspected disability; inadequacy of
the evaluations for the student; failure to educate the student in the least restrictive
environment; failure to adequately develop an adequate Behavior Intervention
Plan (BIP); failure to recognize the parents as equal partners in the ARC; failure
to allow the parents’ request for an independent educational evaluation; and
failure to adequately train all services providers who were responsible for
implementing the student’s IEP, all of which relate to the provision of FAPE.
(Docket #13-4).
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Although these claims are ancillary, significant time and resources went into arguing each of
these claims. Plaintiffs failure to prevail on these claims is a factor this Court may consider in
reducing Plaintiff’s attorneys’ fees. Deal v. Hamilton County Dep't of Educ., 2006 U.S. Dist.
LEXIS 76324 *23 (E.D. Tenn.) (“no attorneys’ fee should be awarded for work on an
unsuccessful claim”); Jason D. W. by Douglas v. Houston Indep. Sch. Dist., 158 F.3d 205, 20910 (5th Cir. 1998) (reducing attorneys’ fees by approximately 75% – from $ 32,943.97 to $
8,340.49 – in case where plaintiff prevailed on three of nineteen claims); see also
Gibson v. Forest Hills Sch. Dist. Bd. of Educ., 2014 U.S. Dist. LEXIS 96112 (S.D. Ohio, 2014)
(finding “an across-the-board reduction is authorized and appropriate” and reducing $800,314.50
in attorneys’ fees to $300,000, an approximately 63% reduction).
After reviewing the Hearing Officer’s decision (Docket #1-2), the Exceptional Children
Appeals Board’s decision (Docket #1-3), Plaintiff’s affidavit in support of attorneys’ fees
(Docket #1-4), and the parties arguments, the Court holds Plaintiff’s request for $44,890.85 shall
be reduced by $500 and then reduced by 50% for a total of $22,195.43.
Plaintiff has also requested $2,672.50 in attorneys’ fees for bringing this action to recover
attorneys’ fees. (Docket #15). While “a lawyer should receive a fee for preparing and
successfully litigating the attorney fee case after the original case is over,” the Sixth Circuit has
recommended limited recovery “to insure that the compensation from the attorney fee case will
not be out of proportion to the main case and encourage protracted litigation.” Coulter v.
Tennessee, 805 F.2d 146, 151 (6th Cir. 1986). “In the absence of unusual circumstances, the
hours allowed for preparing and litigating the attorney fee case should not exceed 3% of the
hours in the main case when the issue is submitted on the papers without a trial and should not
exceed 5% of the hours in the main case when a trial is necessary.” Id. Several courts have
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followed this guideline in “fees for fees” cases. Gibson v. Forest Hills Local Sch. Dist. Bd. of
Educ., 2015 U.S. Dist. LEXIS 85781 *3-4 (S.D. Ohio 2015) (collecting cases). Plaintiff’s
request for $2,672.50 in additional fees will be reduced to $1,109.77, which represents 5% of
Plaintiff’s recoverable attorneys’ fees in the underlying action. Accordingly, Plaintiff will be
awarded a total of $23,305.20 in attorneys’ fees.
Finally, the Board argues Plaintiff’s attorneys’ fees should be reduced because Plaintiff
unnecessarily prolonged this litigation. “Under the IDEA, whenever a court finds that a fee
applicant seeking attorneys’ fees under the statute has ‘unreasonably protracted the final
resolution of the controversy,’ the court ‘shall reduce, accordingly, the amount of attorneys' fees
awarded.’” Jason D. W. by Douglas v. Houston Indep. Sch. Dist., 158 F.3d 205, 211 (5th Cir.
1998); Fischer v. Rochester Community Schools, 780 F. Supp. 1142 (E.D. Mich. 1991).
The Board argues Plaintiff unnecessarily protracted this litigation by rejecting the
Board’s reasonable offer to settle. (Docket #13). The Board states that when it made its first
offer of settlement, Plaintiff had incurred only $2,600 in attorneys’ fees. However, as Plaintiff
argues and this Court has found, Plaintiffs were substantially justified in rejecting this offer.
Moreover, both parties engaged in settlement discussions. While these negotiations failed to
bear fruit, both parties made offers and counter-offers that were reasonable in the course of
settlement talks. (Docket #13-2, 14-1). Finally, while the trial was delayed, it appears to have
been delayed due to the death of the hearing officer’s father-in-law, a delay which cannot be
attributed to Plaintiff. (Docket #14). For the foregoing reasons, the Court denies the Board’s
request to reduce Plaintiff’s attorneys’ fees due to protracted litigation.
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CONCLUSION
IT IS HEREBY ORDERED that, for the foregoing reasons, Plaintiff’s motions for
attorneys’ fees (Docket #9, 15) will be GRANTED. Plaintiff may recover $23,305.20 in
attorneys’ fees.
The Court will issue a separate order and judgment.
September 2, 2015
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