Artichoker v. Todd County School District
OPINION AND ORDER granting in part 57 Motion for Attorney Fees. Signed by U.S. District Judge Roberto A. Lange on 6/9/2017. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
JUN 0 9 2017
KAREN ARTICHOKER, LEGAL GUARDIAN
AND NEXT FRIEND OF D.D., A MINOR,
OPINION AND ORDER GRANTING IN
PART MOTION FOR ATTORNEY'S FEES
TODD COUNTY SCHOOL DISTRICT,
Plaintiff Karen Artichoker, Legal Guardian and Next Friend of D.D., filed a motion for
attorney's fees under 20 U.S.C. § 14I5(i)(3)(B), a provision of the Individuals with Disability
Education Act(IDEA). Doc. 57. Artichoker seeks $65,125 in attorney's fees for work done on
D.D.'s IDEA case at both the administrative level and on appeal before this Court. Doc. 59-1 at
9. The Todd County School District opposes this motion in its entirety. Doc. 60. Finding that
Artichoker prevailed on her claims within the meaning of the IDEA at the administrative level
only, this Court grants attorney's fees in the amount of $32,575, and denies all other attomey's
This Court issued an Opinion and Order providing a detailed explanation ofthe facts and
issues in this case. Doc. 54; Artichoker v. Todd Ctv. Sch. Dist.. No. 3:15-CV-03021-RAL, 2016
WL 7489033 (D.S.D. Dec. 29, 2016). During the 2014-2015 school year, D.D. was a 12-year
old student enrolled in seventh grade at the Lakeview School on the Rosebud Sioux Indian
Reservation, within the Todd County School District. Doc. 54 at 4—5. Following a number of
behavioral issues, school absences, and meetings to develop a behavior plan, D.D. was
suspended from school for the remainder of the year after bringing a knife to school. Doc. 54 at
5-7. On April 27, 2015, D.D.'s legal guardian, Artichoker, filed an IDEA complaint against the
District for failing to conduct a required and requested individual special education evaluation,
and failing to provide D.D. with a free appropriate public education (FAPE) and IDEA
protections during D.D.'s three and a half month suspension. Doc. 54 at 7. Artichoker requested
a full evaluation of D.D., an individualized education plan (lEP), compensatory education, and
attomey's fees. Doc. 54 at 7. A due process hearing was scheduled before an administrative
hearing examiner for July 7, 2015. Doc. 54 at 7.
Before the due process hearing, the District made Artichoker a written settlement offer,
offering D.D. a full evaluation either while placed at a short-term psychiatric care facility at the
District's expense or by a "school psycholbgist/evaluator who contracts with the school;"
providing D.D. a tutoring software system for s\immer use; and placing D.D. at a different school
in the fall better able to accommodate D.D.'s needs. Doc. 23-20; Doc. 54 at 7. Artichoker
rejected the offer, citing the lack of compensatory educational services and because an evaluation
done by an evaluator of the District's choosing would not be sufficient. Doc. 23-23 at 1.
Following the hearing but before a written decision, Artichoker resisted scheduling an evaluation
because she was "not confident that [D.D.] would receive an impartial evaluation from the
[District's] staff or people with whom the District has a regular contractual relationship,"
because of the potential for bias, and because Artichoker "expressly requested that an evaluation
be conducted by someone who is not employed by the District or have a regular contractual
relationship with the District." Doc. 23-26 at 1.
The hearing examiner issued a written decision finding in favor of Artichoker on both
issues addressed:(1)"Whether the Todd County School District's failure to order an evaluation
after referral and request for evaluations by the guardian violated the IDEA and deprived D.D. of
FAPE," and (2) "Whether the Todd County School District's expulsion of D.D. without the
procedural safeguards of the IDEA deprive[d] her of FAPE." Doc. 19-3 at 1; Doc. 54 at 8. The
hearing examiner ordered the District to complete "a full and individualized initial evaluation
conducted by a qualified professional licensed in the state of South Dakota who is not regularly
affiliated with the School District," and "[sjhould DD qualify for special services under the
IDEA the school is to implement those within one month." Doc. 19-3 at 11; Doc. 54 at 8. D.D.
then received a full and individualized initial evaluation while placed at a residential treatment
facility, qualified for, and began receiving necessary services under an lEP. Doc. 54 at 8.
Following the hearing examiner's decision, but before D.D.'s evaluation was completed,
Artichoker filed suit in this Court, seeking a "reversal ofthe hearing officer's decision that failed
to award compensatory educational services." Doc. 54 at 11. The District filed a counterclaim
challenging the hearing examiner's decisions on the two issues addressed. Doc. 54 at 11. This
Court affirmed the hearing examiner's decision, thus denying Artichoker's request for
compensatory education and denying the District's request for reconsideration of the hearing
examiner's IDEA decisions. Doc. 54 at 25-26.
Artichoker then filed a motion for attorney's fees for work done by Artichoker's counsel,
Dana Hanna. Doc. 57. This motion included 130.3 hours of work done at the administrative
level, and 130.2 hours of work done at the district court level in defending the District's
counterclaims. Doc. 58; Doc. 59-1. At a rate of$250 an hour, Artichoker requests $65,125 total.
comprised of$32,575 at the administrative level and $32,550 at the district court level. Doc. 591 at 6, 8-9. The Distriet opposes this motion for attorney's fees in its entirety. Doc.60.
A. Attorney's Fees under the IDEA
Following an action under the IDEA,"the eourt, 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." 20 U.S.C. § 1415(i)(3)(B)(i). "A litigant is a 'prevailing party' if he obtains 'aetual
relief on the merits of his claim that materially alters the legal relationship between the parties by
modifying the defendant's behavior in a way that directly benefits the plaintiff.'" Neosho R-V
Sch. Dist. V. Clark. 315 F.3d 1022, 1030 (8th Cir. 2003)(quoting Birmingham v. Omaha Seh.
Dist. 298 F.3d 731, 734 (8th Cir. 2002); Farrar v. Hobbv. 506 U.S. 103, 111-12 (1992)). A
party does not need to sueeeed on the entirety of the litigation to be considered the prevailing
party under the IDEA;"[a] party prevails if it succeeded on any significant issue which achieved
some of the benefit it sought." Yankton Seh. Dist. v. Schramm. 93 F.3d 1369, 1377 (8th Cir.
1996). However, "any relief obtained 'must directly benefit the plaintiff at the time of the
judgment or settlement.'" Drennan v. Pulaski Ctv. Special Sch. Dist.. 458 F.3d 755, 757 (8th
Cir. 2006)(internal alteration omitted)(quoting Warner v. Indeo. Sch. Dist. No. 625. 134 F.3d
1333, 1338 (8th Cir. 1998)). Furthermore, "attorney's fees should ordinarily be awarded to the
prevailing party unless 'special circumstances' exist to make an award unjust." Borengasser v.
Ark. State Bd. of Educ.. 996 F.2d 196, 199(8th Cir. 1993).
The IDEA prohibits the award of attorney's fees and costs in certain situations. 20
U.S.C. § 1415(i)(3)(D). "Attorneys' fees may not be awarded . . . in any action or proceeding
imder this section for services performed subsequent to the time of a written offer of settlement
to a parent," if(1)the offer is made at least ten days before the administrative proceeding begins,
(2) the offer is not accepted within ten days, and (3)"the court or administrative hearing officer
finds that the relief finally obtained by the parents is not more favorable to the parents than the
offer of settlement." Id § 1415(i)(3)(D)(i). However, if the prevailing party parent "was
substantially justified in rejecting the settlement offer," attorney's fees may be awarded. Id
§ 14I5(i)(3)(E). A court can reduce the amount of attorney's fees awarded if it finds that (I)
"the parent, or the parent's attorney . . . unreasonably protracted the fmal resolution of the
controversy;" (2) "the amount of the attorneys' fees otherwise authorized to be awarded
unreasonably exceeds the hourly rate prevailing in the community for similar services by
attorneys of reasonably comparable skill, reputation, and experience;" (3) "the time spent and
legal services furnished were excessive considering the nature of the action or proceeding," or
(4) "the attorney representing the parent did not provide to the local educational agency the
appropriate information in the notice ofthe complaint." Id § I415(i)(3)(F).
B. Administrative Hearing
In order to award attorney's fees under the IDEA, this Court must first determine whether
Artichoker was a prevailing party at the administrative level—^whether she "succeeded on any
significant issue in litigation which achieved some of the benefit [she] sought." Texas State
Teachers Ass'n v. Garland Indep. Sch. Dist. 489 U.S. 782, 791-92 (1989)(internal marks and
quotation removed); Yankton Sch. Dist., 93 F.3d at 1377. The Eighth Circuit has recognized that
an action at the administrative level qualifies as an "action or proceeding brought under
[§ 1415(i)(3)(B)]," and thus a prevailing parent can file an action for attorney's fees based on
administrative level work. See Johnson v. Bismarck Pub. Sch. Dist.. 949 F.2d 1000, 1003 (8th
Whether an individual is a prevailing party able to receive attorney's fees is necessarily a
fact-driven analysis, guided by the principle that a prevailing party is one who obtains "actual
relief on the merits of his claim that materially alters the legal relationship between the parties by
modifying the defendant's behavior in a way that directly benefits the plaintiff." Birmingham.
298 F.3d at 734. In Neosho R-V School District, the Eighth Circuit affirmed a grant of
prevailing party status where "the administrative panel ordered the School District to consult an
expert and devise a proper behavior management plan," because "it altered the legal relationship
between the parties by granting [the student] a legal right previously denied him by the School
District's failure to devise and implement a behavior management plan." 315 F.3d at 1030; see
also Borengasser. 996 F.2d at 199-200 (granting prevailing party status where the parents
brought a successful action to enforce a previously agreed-upon settlement agreement relating to
the content and timing of lEP conferences); Johnson. 949 F.2d at 1003 (despite noting its
"ambivalence," affirming prevailing party status for a parent that obtained "a promise by the
District to provide services that it had not previously refused to provide"); Yankton Sch. Dist.. 93
F.3d at 1377 (affirming prevailing party status where parents brought successful action to ensure
child received necessary IDEA transitional services).
In Drennan. the Eighth Circuit denied
prevailing party status to a parent where the relief obtained was extended school year services in
several subjects, but that relief was conditioned on the provision of records to the school district,
which the parent never provided. Drennan. 458 F.3d at 757; see also Wamer. 134 F.3d at 133637(denying prevailing party status where the administrative hearing examiner specifically found
that the school district had not violated the IDEA, but hearing examiner modified the student's
lEP under state law); John T. v. Marion Indep. Sch. Dist. 173 F.3d 684, 689 (8th Cir. 1999)
(denying prevailing party status where the school district violated state education law, but not the
Prior to the administrative hearing examiner's decision, the District was in the process of
moving D.D. throu^ its internal assessment and intervention process, but had not yet performed
the IDEA'S "full and individual initial evaluation," despite Artichoker's request and the passage
of several months. Doe. 54 at 5, 12. The administrative hearing examiner subsequently
determined that it was a violation of the IDEA for D.D. not to have had an evaluation after a
referral and a request for an evaluation by D.D.'s guardian. Doe. 19-3. On appeal, this Court
affirmed that decision. Doc. 54 at 16-17. After finding that the IDEA had been violated, the
hearing examiner ordered that the District provide "a full and individualized evaluation
conducted by a qualified professional licensed in the state of South Dakota who is not regularly
affiliated with the School District." Doc. 19-3 at 11. This was relief requested by Artichoker
and neither offered nor provided by the District until after the hearing examiner's decision. The
hearing examiner also found a deprivation of D.D.'s FAPE when she was suspended without the
required procedural safeguards of the IDEA. Doe. 19-3 at 1. Under these eireumstanees,
Artichoker was the "prevailing party" at the administrative hearing, because she "obtain[ed]
'actual relief on the merits of[her] claim that materially alter[ed] the legal relationship between
the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.'"
Neosho. 315 P.3d at 1030(quoting Farrar, 506 U.S. at 111-12).
The District argues that notwithstanding Artichoker's success at the administrative level,
attomey's fees cannot be awarded after the District's written settlement offer because Artichoker
did not obtain more favorable relief from the hearing examiner than the settlement offer. Doc.
60 at 3-7. The District made its written settlement offer on June 11, 2015, more than ten days
before the seheduled administrative hearing^ eomplying with the first prong of 20 U.S.C.
§ 1415(i)(3)(D). Doe. 23-20. Artiehoker responded to and rejeeted the settlement offer in
writing on June 23, 2015, and thus the offer was not aeeepted within the required ten-day time
period under § 1415(i)(3)(D). Doe. 23-23. However, Artiehoker argues that she obtained relief
more favorable fi-om the hearing examiner than offered in settlement. Doe. 61 at 2-3. This
In its written settlement offer, the Distriet offered Artiehoker an evaluation done "while
plaeed in a short-term facility, at the District's expense," or done by "a school
psychologist/evaluator who contracts with the school to perform the testing." Doe. 23-20 at 1.Artiehoker refused this offer not only because it did not include compensatory educational
services, but also because "[t]he District's offer to provide an evaluation(by an evaluator of the
District's choosing) is really no offer at all." Doe. 23-23 at 1. Then, in a letter following the
administrative hearing, but prior to the hearing examiner's decision, Artiehoker explained that
she was "not confident that [D.D.] would receive an impartial evaluation from the . . . District's
staff or people with whom the District has a contractual relationship." Doe. 23-26. The hearing
examiner's decision awarded D.D. "a full and individualized initial evaluation conducted by a
qualified professional licensed in the state of South Dakota who is not regularly affiliated with
the School Distriet." Doe. 19-3. In her subsequent briefing to this Court, Artiehoker stated that
the District's evaluation offer was rejected both because of the lack of an impartial evaluator
firom the District, and because in order to receive an impartial evaluation, she would have to be
placed at a short-term, residential treatment facility, "which [Artiehoker] had rejected because
she believed that removal of her child firom her home for placement in a psychiatric treatment
facility would be emotionally harmful to D.D." Doe. 61 at 3.
The hearing examiner's deeision gave Artiehoker relief that was not offered hy the
Distriet, either before the filing of the initial eomplaint or through the Distriet's settlement offer.
Therefore, Artiehoker was the prevailing party receiving relief beyond what the District had
offered, and thus is entitled to reasonable attorney's fees incurred during the administrative
portion ofthe case.
Artiehoker seeks $32,575 in attomey's fees for work done at the administrative level.
The $32,575 represents 130.3 hours of work performed by Artichoker's attorney, Dana Hanna, at
an hourly rate of$250. Doe. 59-1 at 6. Although the District objects to an award of any amount
of attomey's fees, it did not object to Hanna's hourly rate.
Doe. 60. Hanna filed an affidavit
outlining his thirty total years of litigation experience, with fifteen years of experience
representing clients in IDEA matters at the administrative, distriet court, and court of appeals
levels. Doe. 59. Given Hanna's experience, the prevailing market rate in South Dakota, and the
lack of any objection from the Distriet as to Harma's hourly rate, this Court finds that Hanna's
hourly rate is reasonable. This Court has examined the exhibit attached to Harma's affidavit
detailing the time spent on the administrative portion of this eomplaint and finds it reasonable
and sufficiently detailed to support the 130.3 hours claimed. Hanna began work on April 24,
2015, after an initial consultation with Artiehoker, and continued through the filing of an official
complaint, the administrative hearing, the hearing examiner's decision, and ensuring that the
relief ordered by the examiner was satisfied through Febraary 26, 2016. Doc. 59-1 at 1-6.
Harma's work product at the administrative level was high quality, and he capably handled the
hearing and related proceedings. Artiehoker therefore is entitled to $32,575 in attomey's fees
incurred for work at the administrative level in D.D.'s IDEA ease.
C. District Court Appeal
Artichoker also requests attorney's fees for certain work done on the appeal of D.D.'s
case to this Court. Doc. 57. Although she was the prevailing party at the administrative level,
Artichoker appealed the hearing examiner's decision seeking additional relief.
Artichoker argued that D.D. was entitled to compensatory educational services following a
finding of a FAPE denial, which the hearing examiner had failed to award. Doc. 1 at 5. With its
answer to the complaint, the District filed a counterclaim, disputing the hearing examiner's
decision that D.D. had been denied a FAPE, or that the IDEA had been violated. Doc. 7 at 8-9.
The District made clear in a later filing that "[b]ut for Plaintiffs act of filing an appeal, [the]
District would not itself have appealed in this matter." Doc. 60 at 10-11 n.2. Upon review and
after a motion hearing and full briefing, this Court affirmed the hearing examiner's decision,
denying Artichoker's motion for partial summary judgment on the issue of compensatory
educational services, and denying the District's cross-motion for summary judgment on review
ofthe hearing examiner's decision. Doc. 54.
Artichoker recognizes that she was not the prevailing party on her appeal to this Court,
and so is only requesting attomey's fees for the work done at the district court level to defend
against the District's appeal. Doc. 58 at 3^. By successfully defending against the District's
appeal of the hearing examiner's decision, Artichoker argues that "[s]he prevailed on the appeal
issues brought by the District," and "she should be awarded attorney fees for the work expended
in defending against the District's appeal." Doc. 61 at 11. The District does not address this
issue directly, choosing to maintain its argument that Artichoker is entitled to no attomey's fees
after the written settlement offer. However, the District does dispute several items on Haima's
timesheet as being part of Artichoker's work on her own appeal, rather than part of the defense
against the District's appeal.
Doc.60 at 11-18.
The IDEA does not limit prevailing party status only to plaintiff parents, but whether a
litigant is a "prevailing party" entitled to attorney's fees under the IDEA depends on whether the
party obtains "actual relief on the merits of his claim that materially alters the legal relationship
between the parties by modifying the defendant's behavior in a way that directly benefits the
plaintiff." Birmineham. 298 F.3d at 734 (quoting Farrar. 506 U.S. at 111-12). Whether
Artichoker modified the District's behavior and materially altered the legal relationship between
the District and D.D. by defending against the District's appeal is a close call.
Artichoker's defense against the District's cross-appeal differs from the average IDEA
prevailing party scenario. This is not a situation where the school district immediately appealed
an administrative decision, and the parents successfully defended against the appeal to keep the
decision of the hearing examiner intact. .S^ Smith v. Roher. 954 F. Supp. 359 (D.D.C. 1997)
(granting parent-defendants attorneys' fees where school district appealed administrative
decision, because they "succeeded in their quest to defend before this Court and preserve their
victory at the administrative level"); Ed. of Educ. of Cmtv. Consol. Seh. Dist. No. 21 v. Illinois
State Bd. of Edue.. No. 90 C 3087, 1990 WL 165606 (N.D. 111. Oct. 22, 1990) (awarding
attorney's fees to prevailing defendant parents where district filed initial appeal from
administrative decision). Nor is this a situation where Artichoker brought a district court
proceeding to enforce a previously agreed-upon agreement to hold the District to its duties. See
Borengasser. 996 F.2d at 199 (granting attorney's fees where parents brought suit to ensure
continued compliance with settlement agreement containing the timing and content of lEP
meetings); Barlow-Gresham Union High Sch. Dist. No. 2 v. Mitchell, 940 F.2d 1280 (9th Cir.
1991)(granting attorneys' fees to defendant parents against school district who brought action
seeking to change child's placement).
Instead, Artichoker instigated the appeal to this Court. Artichoker was unsuccessful in
her appeal of the hearing examiner's decision, brought in an effort to receive further relief from
the District, and defended against a cross-appeal that was filed only in response to Artichoker's
Doc. 60 at 10-11 n.2("But for Plaintiffs act offiling an appeal,[the] District would
not itself have appealed in this matter."); see generallv Wamock v. Archer. 397 F.3d 1024, 1026
(8th Cir. 2005)("In general, if a plaintiff prevails in the district court, but then seeks and fails to
obtain greater relief on appeal, he or she will be hard pressed to demonstrate an entitlement to ..
. attorney's fees on appeal." (internal quotation removed). Artichoker filed her appeal on
November 24, 2015, 90 days after the hearing examiner's written decision on August 27, 2015.
See Doc. 1. A party bringing suit to appeal a hearing examiner's decision has 90 days from the
date of the decision to appeal.
Admin. R. of S.D. § 24:05:30:11. The District's answer and
counterclaim were filed on January 29, 2016, 156 days after the hearing examiner's decision,
bolstering its claim that it would not have appealed had Artichoker not first done so. See Doc. 7;
Doc. 60 at 10-11 n.2.
A district court may "in its discretion" award attorney's fees to a prevailing party in an
IDEA action or proceeding. 20 U.S.C. § 1415(e)(4)(B). This Court is unconvinced that
Artichoker is a prevailing party in the appeal to this Court, notwithstanding the District's cross-
appeal. See, e.g.. Schmidt v. Special Sch. Dist. No. 1. 77 F.3d 1084, 1085 (8th Cir. 1996)
(upholding district court's denial of attorney's fees due to lack of prevailing party status where
student initially received a favorable administrative decision and attorney's fees, then later
rejected lEP negotiations, resulting in school district requesting an IDEA due process hearing
and revisions made to the lEP that were "of de minimis beneficial value"). Furthermore,
assuming arguendo that Artichoker could be considered a prevailing party, while the Eighth
Circuit has stated that attomey's fees should be awarded except where '"special circumstances'
exist to make an award unjust," this Court believes such circumstances to be present here.
Borengasser. 996 F.2d at 199.
Artichoker is receiving $32,575 in attomey's fees for work done at the administrative
level. Although Artichoker received more favorable relief from the hearing examiner than from
the rejected settlement offer, the hearing examiner's decision stopped short of the relief
Artichoker wanted the District to give to D.D. Artichoker's appeal produced no additional
benefit to D.D. whatsoever. See, e.g.. M.S. v. NYC Dep't. of Edue.. 734 F. Supp. 2d 271, 281
(E.D.N.Y. 2010) (denying all attomey's fees for unsuccessful appeal after administrative and
district court upheld school district's position because "[tjhere is no indication that M.S.'s
attomey . . . achieved any significant result in favor of M.S. in this federal suit that was not
already achieved in the administrative hearing and appeals"). The District would not have
appealed absent Artichoker filing an appeal, and the primary focus of the appeal and related
motion hearing was on whether the hearing examiner's awarded relief to D.D. was sufficient, not
on the District's cross-appeal. S^ M.M. v. Special Seh. Dist. No. 1. No. CIV 05-2270
RHK/RLE, 2006 WL 2571229(D. Miim. Sept. 5, 2006)(granting a total of 45 hours attomey's
fees for defending against the school district's cross-appeal and prosecution of the fees petition
in conjunction with fees awarded for prevailing on some issues on direct appeal), rev'd. 512 F.3d
455 (8th Cir. 2008) (finding no IDEA violations); Wamock. 397 F.3d at 1026 (awarding a
limited amount of attomey's fees for successfully defending a cross-appeal, in conjunction with
prevailing on one issue raised on appeal). Artichoker received relief that altered the legal
relationship between D.D. and the District, and modified the District's behavior in a way that
caused D.D. material benefit entitling her to prevailing party status at the administrative level,
but not in her appeal to this Court. Artichoker chose to appeal the administrative hearing
examiner's decision, even though she was the prevailing party at the administrative level, and did
not receive any further relief on appeal at the district court level. See Doc. 54. Therefore,
Artichoker's remaining claim for $32,550 in attorney's fees incurred in the appeal is denied.
For the foregoing reasons, it is hereby
ORDERED that Artichoker's motion for attorney's fees. Doc. 57, is granted in part. It is
ORDERED that Artichoker is entitled to attorney's fees in the amoimt of $32,575 fi^om
DATED this^day ofJune,2017.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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