Ogawa et al v. Saint Paul Public Schools Independent School District No. 625

Filing 45

MEMORANDUM OPINION AND ORDER granting 21 Plaintiffs' Motion for Attorney Fees; denying 28 Defendant's Motion for Summary Judgment. Defendant shall pay Plaintiffs $27,669.25 in attorneys fees and costs (Written Opinion). Signed by Judge Ann D. Montgomery on 01/10/2018. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Lynne Ogawa, Parent and Natural Guardian of
T.O.F., a Minor Child; and Laura Flockencier,
Parent and Natural Guardian of T.O.F., a Minor
Child,
Plaintiffs,
MEMORANDUM OPINION
AND ORDER
Civil No. 17-1398 ADM/DTS

v.
Saint Paul Public Schools, Independent School
District No. 625,

Defendant.
______________________________________________________________________________
Amy J. Goetz, Esq., and Andrea L. Jepsen, Esq., School Law Center, LLC, St. Paul, MN, on
behalf of Plaintiffs.
Adam C. Wattenbarger, Esq., and Peter G. Mikhail, Esq., Kennedy & Graven, Chartered,
Minneapolis, MN, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
On November 30, 2017, the undersigned United States District Judge heard oral
argument on Plaintiffs Lynne Ogawa, Parent and Natural Guardian of T.O.F., a Minor Child; and
Laura Flockencier, Parent, and Natural Guardian of T.O.F., a Minor Child’s (collectively,
“Plaintiffs”) Revised Motion for Summary Judgment [Docket No. 21], and Defendant Saint Paul
Public Schools, Independent School District No. 625’s (the “School District”) Motion for
Summary Judgment [Docket No. 28]. For the reasons set forth below, Plaintiffs’ Motion is
granted, and the School District’s Motion is denied.
II. BACKGROUND
The only remaining issue in this case is the narrow one of whether Plaintiffs were the

“prevailing party” in their administrative due process complaint brought under the Individuals
with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1415. If so, Plaintiffs are entitled to
an award of reasonable attorneys’ fees. If they were not, no attorneys’ fees will be awarded.
A. T.O.F.
T.O.F., a 10-year-old student, was first evaluated by the School District for special
education services in April 2013. Compl. [Docket No. 1] ¶¶ 1–3. He was diagnosed as having
emotional/behavioral disorders, and his parents agreed to an Individualized Education Program
(“IEP”) based upon the initial evaluation. Administrative Record [Docket No. 11] (“AR”) at
OAH001316.
T.O.F. was reevaluated in March 2016, and his parents agreed to a new IEP based upon
the reevaluation. Id.
B. The December 6, 2016 Due Process Complaint
On November 21, 2016, T.O.F. brought a pocketknife to school, showed it to a fellow
student, and reportedly threatened to kill the student if he reported the knife. Compl. ¶ 4. T.O.F.
was suspended from school for five days.
On November 28, 2016, the School District provided T.O.F.’s parents with a Prior
Written Notice/Consent to Evaluate, which was notice the School District sought to reevaluate
T.O.F. after the knife incident. The performance areas to be evaluated included
intellectual/cognitive functioning, academic performance, and emotional, social, and behavioral
development. AR at OAH001316. The School District proposed to evaluate T.O.F.’s
intellectual/cognitive functioning and his academic performance through a review of his
previous testing. T.O.F.’s emotional, social, and behavioral development evaluations were to be

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conducted through observation, a functional behavioral assessment, and a review of T.O.F.’s
previous testing. On November 29, 2016, T.O.F.’s parents consented to the School District’s
proposal. Id.
On December 5, 2016, Plaintiffs filed a Complaint and Request for Hearing (the
“Complaint”) with the Minnesota Department of Education. First Goetz Aff. [Docket No. 27]
Ex. A. In the Complaint, Plaintiffs sought: 1) to secure T.O.F.’s right to stay in his current
educational placement;1 2) an independent educational evaluation (“IEE”) at public expense; 3)
an improved IEP and Behavioral Intervention Plan (“BIP”) incorporating the results of the IEE,
and 4) compensatory education services.2 Id.
1. Pre-Hearing Motions
After the Complaint was filed, the parties resolved the dispute regarding the
administrative transfer, and T.O.F. was permitted to return to the same school building. AR at
OAH001584. The other issues remained.
On December 21, 2016, the School District filed a motion arguing that the Complaint
should be dismissed because it lacked factual specificity as required under 34 C.F.R.
300.508(b)(5).3 Id. at OAH001584–86. The Administrative Law Judge (“ALJ”) agreed that the
Complaint was deficient, but provided Plaintiffs an opportunity to amend. Id. at
1

After T.O.F.’s suspension ended, the School District proposed administratively
transferring him to a different school building. Answer [Docket No. 5] ¶ 7.
2

Because the Complaint included a request for an IEE at public expense, the School
District viewed the request as a withdrawal of the November 29, 2016 consent to the planned
evaluation. As a result, the School District did not initiate the evaluation.
3

34 C.F.R. 300.508(b)(5) provides that a due process complaint must include “[a]
description of the nature of the problem of the child relating to the proposed or refused initiation
or change, including facts related to the problem[.]”
3

OAH001498–02.
On December 28, 2016, before an amended complaint was filed, the School District
moved to dismiss Plaintiffs’ demand for an IEE at public expense. Id. at OAH001461–67. The
School District argued that since the parents never disagreed with any prior evaluation, they
were not entitled to a publicly funded IEE. Id. at OAH001316. On January 24, 2017, while the
School District’s motion to dismiss the IEE demand was pending, Plaintiffs filed a motion for
preliminary relief, requesting that the ALJ appoint three evaluators to conduct an IEE at public
expense: 1) Dr. Richard S. Ziegler (“Dr. Ziegler”) to conduct the psycho-educational evaluation
portion of the IEE; 2) Janice Ostrom (“Ostrom”) to conduct the functional behavior analysis
portion of the IEE; and 3) Dr. Anne Gearity (Dr. Gearity”) to assess T.O.F.’s childhood trauma
and its effects on his learning. The School District responded opposing its obligation pay for the
IEE.
On January 26, 2017, the ALJ denied the School District’s motion to dismiss Plaintiffs’
demand for an IEE at public expense. The ALJ concluded that his parents’ acceptance of
T.O.F.’s IEP in March 2016 did not waive their right to later disagree with the evaluation upon
which that IEP was based. Id. at OAH001319–20. The ALJ therefore ordered the School
District to perform an IEE at public expense. Id.
On February 16, 2017, the ALJ appointed Dr. Ziegler and Ostrom as evaluators, but
disagreed that Dr. Gearity was needed to assess T.O.F.’s childhood trauma. The ALJ also
rejected Plaintiffs’ contention that the School District pay for the expenses incurred by Ostrom
and Drs. Ziegler and Gearity prior to January 26, 2017, concluding that the School District’s
financial responsibility to provide the IEE began on January 26, 2017.

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2. Complaint Dismissed
The due process hearing was scheduled for April 18, 2017, and Plaintiffs were ordered to
file witness lists and exhibits by April 11, 2017. Id. at OAH000021–22.
Plaintiffs did not file an exhibit or witness list by the April 11, 2017 deadline. On April
12, 2017, the School District moved to dismiss the case due to Plaintiffs’ failure to comply with
the ALJ’s scheduling order. Id. at OAH000016–18. On April 13, Plaintiffs’ counsel wrote to
the ALJ stating that the “primary issues raised for resolution in this matter are now resolved.
The Student and his Parents withdraw the only remaining issue that has not been resolved, the
claim for compensatory education services, and request dismissal.” Id. at OAH000009.
Plaintiffs assert that “[o]nce the IEE was completed and its results were incorporated into a new
and significantly improved IEP for T.O.F., and once the final order regarding the IEE was
issued, Plaintiffs were satisfied with the outcome of the proceedings.” Compl. ¶ 16. The ALJ
entered an order dismissing the case with prejudice that same day. Id. at OAH000008.
Plaintiffs’ counsel wrote another letter later that day requesting that the ALJ file an
amended order eliminating the statement that the parties “have resolved all their differences.”
Id. at OAH000005. T.O.F. additionally requested that the amended order reflect that dismissal
be without prejudice. Id. at OAH000005. The ALJ filed an amended order that eliminated the
objected to language, but again stated that dismissal was with prejudice. Id. at OAH000004.
C. Federal Case
This federal case was filed on April 27, 2017. See Compl. Plaintiffs’ only claim is for an
award of reasonable attorneys’ fees under 20 U.S.C. § 1415(i)(3)(B)(i)(I).
Both parties move for summary judgment. Plaintiffs contend that their success in

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obtaining an order from the ALJ compelling the School District to provide an IEE at public
expense gives them prevailing party status under § 1415(i)(3)(B)(i)(I). The School District
disagrees and argues that Plaintiffs did not prevail at the administrative level and are therefore
not entitled to attorneys’ fees. The School District also argues that Plaintiffs’ federal Complaint
does not comply with Federal Rule of Civil Procedure 11 because the attorney of record was
suspended from the practice of law at the time she signed the federal Complaint.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate if there are no genuine issues of material fact and the
moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the
evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary
judgment must view the facts in the light most favorable to the nonmoving party and give that
party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving
party “may not rest upon allegations, but must produce probative evidence sufficient to
demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd. of Trs.,
553 F.3d 1110, 1113 (8th Cir. 2009) (citing Anderson, 477 U.S. at 247–49).
B. Attorney Signature on the Federal Complaint
The School District argues that the federal Complaint does not comply with Federal Rule
of Civil Procedure 11(a) because Ms. Goetz was not licensed to practice law in Minnesota at the

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time she signed the pleading as the attorney of record. This issue is now moot because Plaintiffs
have filed an Amended Complaint [Docket No. 42] that complies with Rule 11.
C. Attorneys’ Fees Under the Individuals with Disabilities Education Act
1. Legal Standard
IDEA provides: “In any action or proceeding brought under this section, the court, in its
discretion, may award reasonable attorneys’ fees . . . to a prevailing party who is the parent of a
child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I).
The parties dispute the appropriate legal standard for determining whether Plaintiffs are
the prevailing party. Plaintiffs argue that a plaintiff prevails if it obtains “actual relief on the
merits of [its] claim [that] materially alters the legal relationship between the parties by
modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v.
Hobby, 506 U.S. 103, 111–12 (1992). The School District contends that the definition of a
prevailing party is narrower and requires a party to either “secure a judgment on the merits or a
court-ordered consent decree.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health
and Human Res., 532 U.S. 598, 600 (2001).
The question addressed in Buckhannon was whether a plaintiff prevails if the filing of the
lawsuit causes the defendant to voluntarily change its conduct. Id. at 600. In answering that
question in the negative, Buckhannon stressed that the “catalyst theory”—allowing an award
where there is no judicially sanctioned change in the legal relationship of the parties—“lack[ed]
the necessary judicial imprimatur” to award attorneys’ fees. Id. at 605. The School District
contends Buckhannon expressly recognized only two appropriate bases for awarding attorneys’
fees—judgment on the merits or settlements enforced through consent decrees. Buckhannon,

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532 U.S. at 605.
The School District’s very narrow interpretation has been rejected by multiple circuit
courts. See, e.g., Pres. Coal v. Fed. Transit Admin., 356 F.3d 444, 452 (2d Cir. 2004)
(“Buckhannon does not limit fee awards to enforceable judgments on the merits or to consent
decrees.”); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003)
(“Buckhannon held that to be a ‘prevailing party’ a litigant must have obtained a judgment on
the merits, a consent decree, or some similar form of judicially sanctioned relief.”); Am.
Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir. 2002) (“[T]he district court
interpreted Buckhannon to stand for the proposition that a plaintiff could be a ‘prevailing party’
only if it achieved one of those two results. That reading of Buckhannon, however, is overly
narrow.”). As the Supreme Court reaffirmed post-Buckhannon “‘[t]he touchstone of the
prevailing party inquiry’ . . . ‘is the material alteration of the legal relationship of the parties in a
manner in which Congress sought to promote in the fee statute.’” Sole v. Wyner, 551 U.S. 74,
82 (2007) (quoting Tex. State Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93
(1989)).
The Eighth Circuit’s most recent analysis of Buckhannon held that “a party who prevails
must obtain a ‘judicially sanctioned change in the legal relationship of the parties.’” United
States v. $32,820.56, 838 F.3d 930, 935 (8th Cir. 2016) (quoting Buckhannon, 532 U.S. at 605).
Therefore, prevailing party status is not strictly limited to the two specific forms of relief
identified in Buckhannon. Rather, a prevailing party is one who obtains a “judicially sanctioned
change in the legal relationship of the parties.” Id. (quotation marks omitted).

8

2. Whether Plaintiffs are the Prevailing Party
Plaintiffs contend they “prevailed” for attorney fee award purposes because the ALJ
ordered the School District to “provide an IEE of [T.O.F.] at public expense.” AR at
OAH001314. The School District responds that Plaintiffs securing a publicly funded IEE does
not mean Plaintiffs are the prevailing party for two reasons. First, the School District argues that
Plaintiffs cannot be considered the prevailing party because the Complaint was ultimately
dismissed with prejudice. The School District additionally argues that the ALJ’s order
compelling the IEE was a preliminary order and not the type of success on the merits necessary
to conclude that Plaintiffs prevailed.
a. Complaint Dismissed with Prejudice
The School District argues that the dismissal with prejudice of the Complaint constitutes
a “rejection of the plaintiff’s claims on the merits,” Plaintiffs can not be considered the
prevailing party. Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995). The School District’s
argument is unpersuasive.
As discussed above, to be the prevailing party, a litigant does not need to obtain a
favorable final judgment on the merits. Judicially enforced settlements and consent
decrees—the latter explicitly recognized in Buckhannon as an example of judicial action that can
give prevailing party status—can result in a material alteration of the parties’ legal relationship
even though the action is later voluntarily dismissed with prejudice. See, e.g., Richard S. v.
Dep’t of Dev. Servs. of State of Ca., 317 F.3d 1080,1084–86 (9th Cir. 2003) (holding that
settlement agreement conferred prevailing party status to plaintiff even though case was
dismissed with prejudice); American Disability Ass’n,, 289 F.3d at 1319–21 (same); Shloss v.

9

Sweeney, 515 F. Supp. 2d 1083, 1084–86 (N.D. Cal. 2007) (same). There is no significant
difference between Plaintiffs’ obtaining a court order requiring the School District to perform an
IEE, and a judicially enforced settlement or consent decree requiring the same. In either
instance, the parties’ legal relationship is altered by judicial imprimatur sufficient to confer
prevailing party status. Buckhannon, 532 U.S. at 605. Therefore, if a settlement can permit an
award of attorneys’ fees when the complaint is dismissed with prejudice, there is no compelling
reason why the same result shall not occur here.
In an effort to distinguish this case from those altered relationship cases, the School
District cites Jaramillo for the proposition that dismissal with prejudice renders all underlying
orders null and void, and res judicata applies to bar any future litigation. Thus, argues the
School District, since dismissal with prejudice nullifies the ALJ’s order, Plaintiffs’ sole victory
predicating their administrative level success was erased by the Complaint’s ultimate disposition.
However, the School District’s argument relies upon the same cramped interpretation of
Buckhannon, and ignores the relief Plaintiffs’ received. The ALJ’s order requiring the School
District to perform a IEE resulted in T.O.F. receiving a new IEP based upon the new evaluation.
This legal change in the parties’ relationship was not erased because the Complaint was later
dismissed with prejudice: T.O.F. did not revert back to his IEP based upon the March 2016
evaluation once the Complaint was dismissed with prejudice. That the Complaint was dismissed
with prejudice is not dispositive of Plaintiffs’ assertion that they are the prevailing party.
b. Preliminary IEE Ruling
The School District next argues that Plaintiffs are not entitled to attorneys’ fees because
the order requiring the IEE was a preliminary ruling that cannot confer prevailing party status.

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In support of this argument, the School District asserts that Plaintiffs’ request for an IEE could
not have been the main subject of their Complaint because there was no dispute about any IEE
when the Complaint was filed.
The School District cites inapposite authority to support its argument that the IEE order
is a preliminary ruling that cannot confer prevailing party status. For example, in John T. v.
Delaware County Intermediate Unit, a preliminary injunction, contempt order, and an acceptable
IEP were insufficient forms of relief to confer prevailing party status to the plaintiff. 318 F.3d
545, 558–59 (3d Cir. 2003). In that case, the preliminary injunction and contempt order were
interim relief designed to maintain the status quo rather that relief based on the merits of
plaintiff’s claim. Id. A preliminary injunction designed to maintain the status quo is a materially
different form of relief than the ALJ’s order compelling the School District to perform an IEE.4
A preliminary injunction, unlike the order compelling the IEE, can be lifted after further
assessment into the merits.5 The favorable IEP obtained by the Plaintiff in Delaware County did
not confer prevailing party status because the IEP was developed through negotiations out of
court and thus lacked the required judicial imprimatur. Id. at 558–60.
The School District also supports its argument by citing cases where attorneys’ fees were
not awarded because the plaintiff only obtained a technical victory, and cases where the relief

4

This is consistent with holdings that success under the IDEA through the invocation of
the stay-put provision provides only interim relief for which attorneys’ fees may not be awarded.
See, e.g., Bd. of Educ. of Downers Grove Grade Sch. Dist. No. 58 v. Steven L., 89 F.3d 464,
468–69 (7th Cir. 1996).
5

Even preliminary relief is occasionally sufficient to convey prevailing party status. See
Northern Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006) (“[S]ome preliminary
injunctions are sufficiently akin to final relief on the merits to confer prevailing party status.”).
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was conditioned on the plaintiff performing certain duties that went uncompleted. See Hale v.
Poplar Bluff R-I Sch. Dist., 280 F.3d 831, 833 (8th Cir. 2002) (denying prevailing party status
where plaintiff “prevailed on only a small and technical part of their claim”). See Drennan v.
Pulaski Cty. Special Sch. Dist., 458 F.3d 755, 757 (8th Cir. 2005); (“[T]he relief in this case was
even more tenuous because the Hearing Officer conditioned the limited relief on Drennan
discharging certain duties. . . . Drennan never discharged these duties and the relief was not
received.”). The School District also cites cases where the victory obtained was not sought in
filing the due process complaint. See P.O. ex rel. L.T. v. Greenwich Bd. of Educ., 210 F. Supp.
2d 76, 85–86 (D. Conn. 2002) (declining to award plaintiff prevailing party status for hearing
officer’s favorable ruling for the 1999-2000 IEP because the due process complaint was
concerned with the IEP for the 1998-1999 school year). None of this authority is directly
applicable here. In this case, Plaintiffs claimed that T.O.F. “has not made adequate progress in
the skills identified for improvement in his IEPs over the past few years, and his needs have not
been properly or appropriately identified.” Compl. Consistent with that assertion, Plaintiffs
sought a new IEE, the results of which would then be incorporated into a new BIP and IEP. The
AJL ordered the School District to perform the IEE, and its results were incorporated into
T.O.F.’s new BIP and IEP. The IEE order was not a technical victory or contingent on a duty
that Plaintiffs failed to perform. Plaintiffs prevailed on one of the claims explicitly asserted in
the Complaint.
The School District additionally argues that if the case had not been dismissed prior to
the due process hearing, the School District’s position would have been vindicated with a ruling
that Plaintiffs had not met their burden to prove a violation of the IDEA. Therefore, the School

12

District posits, it would be perverse to claim that Plaintiffs were the prevailing party even though
the claims asserted in their Complaint would have ultimately been rejected. Even if the School
District’s prediction is correct, it is largely irrelevant because “a hearing officer’s determination
that [the school] did not deny a student a [free and appropriate public education] does not control
the court’s determination of prevailing party status.” Bush ex rel. A.H. v. Dist. of Columbia, 579
F. Supp. 2d 22, 28 (D.D.C. 2008) (citation omitted); Sykes v. Dist. of Columbia, 870 F. Supp. 2d
86, 92–93 (D.D.C. 2012) (finding that the plaintiff was a prevailing party, even though the
hearing officer did not find a denial of a free and appropriate public education).
Finally, the School District argues that Plaintiffs did not request an IEE at public expense
before filing the Complaint, and thus Plaintiffs could not allege that the School District violated
their right to an IEE. This argument is also unpersuasive.
The argument the School District raises here is a mutation of the unsuccessful argument
it made to the ALJ, that Plaintiffs are not entitled to demand a new IEE in the Complaint without
first expressing a pre-suit dispute with a previous IEE. The ALJ found this argument
unconvincing and that decision will not be revisited in this attorney fee petition. Put simply,
Plaintiffs filed a Complaint that sought an IEE at public expense and an improved IEP and BIP
incorporating the results of the IEE. Plaintiffs were successful in defeating the School District’s
resistance, and eventually secured an order compelling the School District to perform an IEE at
public expense, and a new IEP and BIP was created as a result. Thus, Plaintiffs substantially
prevailed.
The School District contends that rewarding Plaintiffs with their attorneys’ fees under
these circumstances will encourage gamesmanship and fee chasing because Plaintiffs are being

13

rewarded for securing an IEE without first providing the School District an opportunity to
comply with IDEA’s statutory obligations. The context of this case shows this argument to be
flawed. There is no concern of gamesmanship here because if the School District had agreed to
provide the IEE prior to the ALJ’s order, its voluntary agreement would lack the judicial
imprimatur necessary to confer prevailing party status. See Sierra Club v. City of Little Rock,
351 F.3d 840, 845 (8th Cir. 2003) (“[T]he change in the relationship must be judicially
sanctioned, a voluntary change in the relationship between the parties as a result of a lawsuit is
insufficient to trigger a shift in the general rule that parties pay their own fees.” (quotations
omitted)).
Plaintiffs are therefore considered the prevailing party under 20 U.S.C. § 1415(i)(3)(B)
and are entitled to an award of reasonable attorneys’ fees.
3. Attorneys’ Fees
a. Legal Standard
The starting point for determining reasonable attorneys’ fees is the “lodestar” calculation,
which multiplies the number or hours reasonably expended on the litigation by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A reasonable hourly rate considers
the rates commonly charged by attorneys for similar work in the community where the case is
litigated. Fish v. St. Cloud State Univ,, 295 F.3d 849, 851 (8th Cir. 2002). In calculating a
reasonable fee amount, courts should exclude hours that were not “reasonably expended,” such
as excessive or redundant hours or instances where overstaffing or poor billing judgment has
occurred. Hensley, 461 U.S. at 434.

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b. Attorneys’ Fee Award
Plaintiffs seek a total attorneys’ fee award of $50,177.50. See Second Goetz Aff.
[Docket No. 39] ¶ 4. This amount reflects 174.5 hours of work performed by lead counsel,
supporting counsel, and a law clerk. Lead Plaintiffs’ counsel Amy J. Goetz, who has been
licensed since 1991, performed 153.5 hours of work at a billable rate of $300.00 per hour. Id.;
First Goetz Aff. ¶ 11; Ex. H. Supporting attorney Andrea L. Jepsen, who has 20 years of
experience, performed 1.25 hours of work at $250.00 per hour. First Goetz Aff. ¶ 17. Finally, a
law clerk performed 19.75 hours of work at $100.00 per hour. Id. ¶ 16.
The School District does not challenge the hourly rates of Plaintiffs’ legal team and the
Court finds their rates reasonable. The School District does, however, present four arguments
supporting their contention that Plaintiffs’ attorney fee application must be reduced: 1) a
substantial portion of Plaintiffs’ counsel’s work occurred after rejected settlement offers that
offered more relief than was later obtained through the proceedings; 2) Plaintiffs’ primary
counsel was unlicensed and unauthorized to practice law for a period during the litigation; 3)
some of Plaintiffs’ counsel’s billing entries are not compensable; and 4) Plaintiffs’ fees must be
reduced in proportion to their limited success.
The School District’s argument for a reduction based on Plaintiffs’ rejection of early
settlement offers is unpersuasive. Under 20 U.S.C. § 1415(i)(3)(D)(i)(III), attorneys’ fees may
not be awarded if the court “finds that the relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.” Notwithstanding that prohibition,
subsection (E) provides that “an award of attorneys’ fees and related costs may be made to a
parent who is the prevailing party and who was substantially justified in rejecting the settlement

15

offer.” 20 U.S.C. § 1415(i)(3)(E). Under the circumstances here, Plaintiffs were substantially
justified in rejecting the School District’s settlement offers. While the parties made substantial
progress towards settling the litigation, certain issues remained unresolved that prevented
settlement, including the amount of attorneys’ fees and a consent decree. See Wattenbarger Aff.
Exs. A–Q [Docket No. 32] at Exs. C–Q. The School District’s final offer of $13,290 in
attorneys’ fees was made when Plaintiffs had incurred nearly $25,000 in attorneys’ fees, and the
issue of the consent decree was the crux of the School District’s opposition to Plaintiffs’ fee
request in federal court. Id. Exs. M, O. Accordingly, Plaintiffs were substantially justified in
rejecting the School District’s settlement offers and, therefore, no reduction under 20 U.S.C.
§ 1415(i)(3)(D)(i)(III) is warranted.
Turning to the issue of the status of Plaintiffs’ counsel’s license to practice law, the Court
agrees with the School District that Plaintiffs are not entitled to recover attorneys’ fees between
April 6 and May 24, 2017, the time their lead counsel was unlicensed. As the Ninth Circuit
observed in Z.A. v. San Bruno Park School District, “[a] person is or is not licensed to practice
law in a particular forum. There is no halfway. If not licensed, one cannot practice in that
forum, and cannot charge, or receive attorney’s fees for such services. . . .” 165 F.3d 1273, 1276
(9th Cir. 1999). Although Plaintiffs’ counsel’s licensing lapse was for administrative reasons,
attorneys’ fees will not be awarded during the time her license was suspended. Therefore,
Plaintiffs’ fee award will be reduced by $6,000 to account for fees incurred between April 6 and
May 24, 2017.6

6

While the School District contends that $5,950 in attorneys’ fees were incurred during
the time Plaintiffs’ lead counsel was unlicensed, based on the billing statement provided in the
Second Goetz Affidavit, there were 15 time entries totaling $6,000 during this time period.
16

Next, the School District argues that Plaintiffs cannot be compensated for certain
activities, such as time billed for IEP meetings or resolution sessions, as well as for work
performed by evaluators prior to January 26, 2017.7 After reviewing Plaintiffs’ counsel’s billing
records, the Court is satisfied that Plaintiffs’ voluntary deduction of $1,200 sufficiently accounts
for time billed for IEP meetings or resolution sessions. The attorneys’ fees award must also
remain consistent with the ALJ’s order that “expenses incurred by the Parents for work done by
[the evaluators] before January 26, 2017, in connection with evaluating the Student is the
financial responsibility of the Parents, not the School District.” AR at 001241. Accordingly,
Plaintiffs attorneys’ fee award will be reduced by $4,650 for time billed for work done by the
evaluators prior to January 26, 2017. This reduction accounts for billing entries on December 7
and 20, and January 1, 11, 23, and 25. See Second Goetz Aff.
Finally, Hensley permits reducing an attorneys’ fees award when the plaintiff “has
achieved only partial or limited success.” 461 U.S. at 436. “In awarding attorney fees, ‘the most
critical factor is the degree of success obtained.’” Wheeler v. Mo. Highway & Transp. Comm’n,
348 F.3d 744, 754 (8th Cir. 2003) (quoting Hensley, 461 U.S. at 436). Plaintiffs here prevailed
on the IEE portion of their due process complaint.8 While this was significant, the remaining
claims in their complaint were abandoned prior to the due process hearing. Even if, as Plaintiffs
contend, the IEE claim was the impetus for bringing the due process complaint, jettisoning the
remaining, active claims prior to the due process hearing warrants a reduction in the attorneys’

7

Plaintiffs are no longer seeking $2,790 for two invoices relating to work performed by
an evaluator prior to January 26, 2017, the date the ALJ ordered the IEE.
8

Plaintiffs were also able to secure T.O.F.’s same school placement, but since that
success was not judicially mandated it is not a factor in evaluating Plaintiffs’ success.
17

fees award. Moreover, Plaintiffs incurred attorneys’ fees pursuing reconsideration of three
rulings by the ALJ. Two of Plaintiffs’ arguments on reconsideration were completely rejected,
and Plaintiffs’ obtained only partial success on the third.6 Accordingly, the Court finds a
reduction of 30% to be appropriate considering Plaintiffs’ partial success.
c. Conclusion
Plaintiffs’ request of $50,177.50 will be reduced by $10, 650 to account for time billed
when Plaintiffs’ counsel was unlicensed to practice law and for billing related to evaluator work
prior to January 26, 2017. This reduction results in a total fee of $39,527.50. That amount will
be reduced by 30% to reflect the limitations of Plaintiffs’ success. When that reduction is
applied, the total attorneys’ fees award is $27,669.25.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Plaintiffs Lynne Ogawa Parent and Natural Guardian of T.O.F., a Minor Child;
and Laura Flockencier, Parent, and Natural Guardian of T.O.F., a Minor Child’s
Revised Motion for Summary Judgment [Docket No. 21] is GRANTED;

2.

Defendant Saint Paul Public Schools, Independent School District No. 625’s
Motion for Summary Judgment [Docket No. 28] is DENIED;

3.

Defendant shall pay Plaintiffs $27,669.25 in attorneys’ fees and costs.

6

Plaintiffs sought reconsideration of the ALJ’s decisions that: 1) the School District
need not pay for work done by evaluators prior to January 26, 2017; 2) a separate evaluator
specializing in early childhood trauma was not needed; and 3) the School District need not pay
for evaluators to attend an IEP team meeting. AR at OAH000013. The ALJ denied Plaintiffs’
arguments with respect to the early childhood trauma evaluator and payment for attending an
IEP team meeting, but ordered the School District to cover $1,250 in evaluator costs for work
performed prior to January 18, 2017, which was only a portion of what Plaintiffs were seeking.
Id. The School District has already compensated Plaintiffs for these costs.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 10, 2018.

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