Krawietz et al v. Galveston ISD

Filing 52

MEMORANDUM OPINION AND ORDER granting in part and denying in part 40 MOTION for Summary Judgment , 27 MOTION for Summary Judgment (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
§
§
Plaintiffs,
§
VS.
§
§
GALVESTON INDEPENDENT SCHOOL §
DISTRICT,
§
§
Defendant.
§

March 30, 2017
David J. Bradley, Clerk

ASHLEY KRAWIETZ, et al,

CIVIL ACTION NO. 3:15-CV-203

MEMORANDUM OPINION AND ORDER
The parties’ cross-motions for summary judgment1 stem from a dispute between
student and school district over a Texas Education Agency (“TEA”) Due Process Hearing
Decision (“The Decision”). Ashley requested the hearing to determine whether GISD
failed to provide her with a free, appropriate public education (“FAPE”) from 2009 to
2015 as required by the Individuals with Disabilities Education Act (“IDEA”). 2 The
Decision found that although some of Ashley’s claims for relief were barred by a oneyear statute of limitations, GISD’s continuing failure to evaluate Ashley for special
education services entitled her to compensatory services and equitable relief.

1

Defendant Galveston Independent School District’s (“GISD”) motion for summary judgment
(Dkt. 27); Plaintiffs Ashley K. (then a minor student) and Amanda P.’s (her mother and Next
Friend) (together, “Ashley”) motion for summary judgment (Dkt. 40).
2

In the Individuals with Disabilities Education Improvement Act of 2004 (“IDEIA”), Congress
reauthorized the Individuals with Disabilities Education Act (“IDEA”). See Individuals with
Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 (codified
as amended at 20 U.S.C. §§ 1400-1491o (2010). However, the Code retains its short title, and
the Court therefore refers to “IDEA” throughout this Opinion. See 20 U.S.C. § 1400(a).
1 / 18

Ashley then brought this suit to assert her status as a prevailing party who is
entitled to attorneys’ fees. The cross-motions for summary judgment require the Court to
decide the following issues based on the administrative record: 1) whether the Decision
correctly granted Ashley relief; 2) whether Ashley is a prevailing party; and 3) whether
the attorneys’ fees sought are reasonable.
I. Statement of the Undisputed Facts
The undisputed facts are as follows.3 Ashley was born in 1996 and has exhibited
troubling behavior since she was in preschool. These behaviors can safely be attributed
to a variety of genetic and environmental factors. In 2004, GISD identified Ashley as a
student with disabilities who was eligible for special education services.

GISD

developed an Individualized Educational Plan (“IEP”). Ashley was evaluated annually
through 2008. In 2008, Ashley’s family withdrew her from GISD after she attempted to
burn another student with a hot glue gun. Ashley began homeschooling in 2009, which
was to last for the next four years.
In 2013, Ashley returned to GISD, enrolling at AIM College and Career Prep
Center (“AIM”). AIM is a GISD charter school. Ashley’s AIM application stated that
she had received special education services for a disability.

Additionally, Ashley’s

family informed GISD upon her return that she had received special education services in
the past. They further informed GISD that these services had never been dismissed.

3

The full—and often tragic—extent of Ashley’s disabilities, behavioral issues, and interactions
with the school board, hospitals, and other providers are contained in the pleadings and attached
exhibits. The Court limits its recitation of these facts to those necessary for this Opinion.

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Unable to locate Ashley’s records, GISD determined that she had been dismissed from
special education status and services.
Ashley started the ninth grade at AIM in August 2013. In September 2013, she
was suspended for performing oral sex on two students in a faculty restroom. She was
also placed on Disciplinary Alternative Educational Placement for two months. She was
also failing three out of her five classes. GISD referred Ashley for Section 504 Plan
(“504”) services in November 2013.4

The Section 504 Committee determined that

Ashley was eligible for 504 accommodations due to PTSD, ADHS and OCD. The
Committee did not address her confirmed diagnoses of Triple-X Disorder and depressive
disorders.

Accommodations included “additional time to complete assignments,

reminders to stay on task, “chunking” material, a quiet place to work, and, small group
testing.” Dkt. 1-2, ¶ 36. GISD did not design or implement a behavior plan.
Ashley’s academic and behavioral performance improved after the fall of 2013,
and she was ultimately successful in ninth grade (2013-14) at AIM. She began to
struggle once again—both academically and behaviorally—in tenth grade (2014-15).
She was hospitalized once again in September 2014. She was twice caught stealing in
October 2014. She scored below the 20th percentile on multiple sections of the 2014

4

Section 504 mandates that “[n]o otherwise qualified individual with a disability … shall, solely
by reason of her or his disability, be excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving Federal financial
assistance ….” 29 U.S.C. § 794(a). This provision was originally found in Section 504 of the
public law eventually codified by the Code. A “504 Plan” may include accommodations for a
student with disabilities who does not qualify for IDEA protection.
3 / 18

PSAT. She completed less than half of the expected credits for her fall semester (August
2014-December 2014).
In response to Ashley’s continuing struggles, GISD scheduled another 504
Conference in February 2015 over protests from Ashley’s family. Ashley, now
represented by counsel, submitted a Special Education Due Process Hearing Request
letter on February 9, 2015. During a Resolution Session held prior to the Hearing, the
parties agreed that GISD would conduct a Full Individual Evaluation (“FIE”). The FIE,
completed in April 2015, found that Ashley suffered from poor self-esteem, and exhibited
learning disabilities in the areas of reading, math, and written expression. The FIE
concluded that Ashley was eligible for special education services. The FIE did not assess
Ashley’s sensory needs. Nor did it assess the need for post-school transition, in-home
training, parent training, sexuality education, or speech/pragmatic language.
Special Education Hearing Officer (“SEHO”) Ann Vevier Lockwood conducted
the Due Process Hearing, which concluded in May 2015. Both Ashley and GISD were
represented by counsel. Ashley argued that GISD had denied her the right to a FAPE
from 2009 through 2015. Ashley sought the following relief:
i. That the district be ordered to provide to the student eligibility for special
education and related services, an appropriate IEP in the least restrictive
environment, which is a residential placement….
ii. If the district cannot or will not provide appropriate services to the
student, then the parents seek reimbursement for the placement they
assembled for the student. This would include reimbursement for private
services, evaluations and mileage, incurred in the absence of a provision of
FAPE by the district and whether the family is entitled to have the district
fund private placement, evaluations and/or related services going forward
for the time determined by the hearing officer to be appropriate.
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iii. Compensatory educational services due to the district’s denial of FAPE
in the amounts and types determined by the hearing officer to be
appropriate to compensate the student for any violations of law the hearing
officer finds….
iv. Any relief that the hearing officer deems appropriate or which is
recommended by the student’s experts and evaluators.
Dkt. 1-1, p. 18.
The SEHO released the Decision of the Hearing Officer on July 7, 2015. Dkt. 1-2.
The Decision made the following conclusions of law and fact, categorized here based on
their favorability to Ashley.
i. Favorable Conclusions


GISD had a continuing duty to re-evaluate Ashley when she returned to the
school district. GISD should have recognized that a re-evaluation was
overdue and identified Ashley as a student with a disability upon her
enrollment with AIM. GISD’s failure to implement an appropriate
Individualized Educational Plan (“IEP”) harmed Ashley.



Ashley met the criteria to be identified as the following: 1) a Student with
an Emotional Disturbance; 2) a Student with Other Health Impairment; and
3) a Student with Specific Learning Disabilities.



Ashley is entitled to compensatory and equitable relief for GISD’s failure
to timely meet its Child Find duty.5
ii. Unfavorable Conclusions
A one-year statute of limitations applied time-barred all claims that arose
prior to February 9, 2014.




5

Ashley was not entitled to residential placement because she had not
demonstrated that such treatment constituted the least restrictive
environment as required by IDEA.

The Decision delineated several orders that it deemed necessary for providing such relief.

5 / 18



GISD was not required to reimburse Ashley for the Independent
Educational Evaluation (“IEE”) that she had secured in preparation for the
Due Process Hearing. Reimbursement is appropriate where the parent
disagrees with the school district’s recommendation. Here, GISD had not
completed its own evaluation, so there was nothing with which to disagree.



Any non-IDEA claims were dismissed for lack of jurisdiction.

Dkt. 1-1, pp. 31-34.
On July 21, 2015, Ashley counsel wrote to GISD. Her letter declared that Ashley
was the prevailing party and thus deserving of attorneys’ fees. The letter offered to
reduce the attorneys’ fees by 15% in consideration for a timely settlement. Dkt. 40-2.
On July 31, 2015, GISD’s counsel responded, concluding that “the law supports only a
minimal award of attorneys’ fees, if it supports any at all.” Dkt. 27-1. GISD’s letter
further explained that, “in the interest of collaborating to secure an end to this litigation, I
am authorized to negotiate a settlement in which GISD would pay $10,000 in exchange
for a full release of all existing claims, including attorney’s fees.” Id.
The parties did not reach a settlement agreement. In August 2015, Ashley instead
filed a Complaint with this Court pursuant to 20 U.S.C. § 1415(i)(2)(A). Ashley’s
Complaint sought to establish that she was a prevailing party in the Due Process Decision
pursuant to 20 U.S.C. § 1415(i)(3)(B).

GISD disagreed, asserting the following

arguments in its motion for summary judgment: 1) GISD did not violate the IDEA; 2)
alternatively, all relief granted by the Decision was time-barred; 3) Ashley is not a
prevailing party and thus not entitled to recover attorneys’ fees; and 4) alternatively, the
Court should limit or deny attorneys’ fees. Dkt. 27.

6 / 18

Ashley’s Complaint included affidavits from her counsel of record, Dorene J.
Philpot and Deborah Ann Heaton McElvaney regarding attorneys’ fees and costs.6 A
Response (Dkt. 32) and Reply (Dkt. 33) followed. Ashley also filed a motion for
summary judgment that argued against all relief sought by GISD. Dkt. 40. A Response
(Dkt. 46) and Reply (Dkt. 47) followed. Ashley’s Complaint also included causes of
action pursuant to the Rehabilitation Act of 1973 (“Section 504”) and the Americans with
Disabilities Act (“ADA”). See 29 U.S.C. § 701; 42 U.S.C. § 12101. GISD filed a
supplement to its motion for summary judgment arguing against these additional causes.
Dkt. 42. However, per the parties’ joint stipulation (Dkt. 44), the Court dismissed with
prejudice all claims other than those brought under the IDEA. Dkt. 45. Finally, Ashley
filed a supplementary brief with the Court arguing that GISD bears the burden of proof.
Dkt. 49. GISD responded. Dkt. 50.
II. Standard of Review
i. Motion for Summary Judgment and the IDEA
Under the IDEA, a party aggrieved by an administrative decision may sue in
district court. 20 U.S.C. § 1415(i)(2)(A). The district court shall receive the
administrative record, hear additional evidence at any party’s request, and decide based
on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C). “If no party requests

6

Ms. Philpot updated her initial affidavit (Dkt. 1-4) and ultimately asserted that she was entitled
to $18,454.54 in costs and $58,378 (198 hours at an hourly rate of $295 for pretrial work and
$315 for trial work) in attorney’s fees. Dkt. 40-2. Ms. McElvaney updated her initial affidavit
(Dkt. 1-5) and ultimately asserted that she was entitled to $772 in costs and $44,775 (179.1 hours
at an hourly rate of $250) in attorney’s fees. Dkt. 40-1.

7 / 18

additional evidence to be heard by the district court, a motion for summary judgement is
simply a procedural device for asking the Court to decide the case on the basis of the
administrative record.” C. G. v. Waller Indep. Sch. Dist., No. 4:15-CV-00123, 2016 WL
3144161, at *4 (S.D. Tex. June 6, 2016) (internal quotation marks omitted).
A district court should afford “due weight” to the Hearing Officer’s Decision.
Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). However, the
Decision is not conclusive. Id. The Court’s review, therefore, is “virtually de novo.” Id.
See also Rockwall Indep. Sch. Dist. v. M.C., 816 F.3d 329, 338 (5th Cir. 2016). Here, the
only additional evidence introduced by the parties were affidavits, letters, and receipts
concerning attorneys’ fees and settlement discussions. Relying on the same evidence
available to the SEHO, the Court therefore affords due weight to the Hearing Officer’s
comprehensive Decision.7
ii. Burden of Proof
The movant generally bears the burden of proof.8 Schaffer ex rel. Schaffer v.
Weast, 546 U.S. 49, 56 (2005). However, courts look first to the statute itself when the
cause of action is statutory. Id. The IDEA’s plain text is silent on allocating the burden
of proof. Id. In Shaffer, the Supreme Court held that “[t]he burden of proof in an
7

The Fifth Circuit has suggested that the introduction of additional evidence moves the district
court’s standard of review even closer to de novo. See Cypress-Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 252 (5th Cir. 1997) (“Indeed, given its adducing of new evidence,
even evidence of matters that have occurred since the administrative hearing under review, the
district court proceeding under the IDEA is a hybrid, akin to a “trial de novo.”).
8

This Opinion uses the general phrase ‘burden of proof’ to discuss the relevant burden being
argued here—the burden of persuasion— “i.e., which party loses if the evidence is closely
balanced.” Schaffer, 546 U.S. at 56.
8 / 18

administrative hearing challenging an IEP is properly placed upon the party seeking
relief.” Id. at 62. See also White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d
373, 377 (5th Cir. 2003) (“[T]he IDEA creates a presumption in favor of a school
system’s educational plan, placing the burden of proof on the party challenging it.”);
Cypress-Fairbanks Indep. Sch. Dist. V. Michael F., 931 F. Supp. 474, 477 (S.D. Tex.
1995) (“The Fifth Circuit has held that there is a presumption in favor of the educational
placement established by a student's IEP, and the party attacking its terms should bear the
burden of showing why the educational setting established by the IEP is not
appropriate.”), aff’d as modified, 118 F.3d 245 (5th Cir. 1997).
Here, the parties do not dispute GISD’s IEP. Instead, the parties dispute whether
GISD’s failure to create an IEP led to the denial of Ashley’s right to a FAPE. In the
absence of an IEP, the Court thus concludes that GISD bears the burden to show by the
preponderance of the evidence that the Decision was improper.
iii. The IDEA
Congress enacted the IDEA to ensure that disabled children are provided with a
free appropriate public education in the least restrictive environment possible. See Daniel
R.R. v. State Bd. of Educ., 874 F.2d 1036, 1043-44 (5th Cir. 1989). Under the IDEA,
states must first “identify, locate, and evaluate all children with disabilities … to ensure
that they receive needed special-education services.” Forest Grove Sch. Dist. v. T.A., 557
U.S. 230, 245 (2009). This duty is known as “Child Find.” Id. The state’s Child Find
duty is only raised if the state had reason to suspect that: 1) a student was disabled and 2)

9 / 18

the student may currently require special education services. See Alvin Indep. Sch. Dist.
v. A.D. ex rel. Patricia F., 503 F.3d 378, 382 (5th Cir. 2007).
After identifying a disabled child, states must next evaluate the child to ensure that
she receives a FAPE.

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005).

Conducting an annual IEP is the prescribed method of tailoring a FAPE to the needs of
the individual student. See Board of Educ. v. Rowley, 458 U.S. 176, 181 (1982). An IEP
is an individualized, written statement that includes, inter alia, the child’s present
educational and functional level, a set of measurable annual goals, and a method of
measuring whether these goals have been met. 20 U.S.C § 1414(d)(1)(A).
Parties may present a complaint under the IDEA “with respect to any matter
relating to the identification, evaluation, or educational placement of the child, or the
provision of a free appropriate public education to such child ….”

20 U.S.C. §

1415(b)(6). Either party presenting a complaint under 20 U.S.C. § 1415(b)(6) may
request an impartial due process hearing. 20 U.S.C. § 1415(f)(1)(A).9 An aggrieved party
may generally bring a civil action. 20 U.S.C. § 1415(i)(2)(A).
After receiving the records of the administrative proceedings and hearing
additional evidence at the request of any party, the court shall grant such relief as it

9

The IDEA imposes a two-year statute of limitations on complaints filed under this provision.
The statute of limitations begins to run on “the date the parent or public agency knew or should
have known about the alleged action ….” 20 U.S.C. § 14151(f)(3)(C). However, a state statute
that has an explicit time limitation for such actions controls. Id. Texas has such a one-year
statute of limitations, which therefore controls. TEX. ADMIN. CODE § 89.1151(c) (“A parent or
public education agency must request a hearing within one year of the date the parent or public
education agency knew or should have known about the alleged action that serves as the basis for
the request.”).
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determines is appropriate, basing its decision on the preponderance of the evidence. 20
U.S.C. § 1415(i)(2)(C).

Also within the court’s discretion is award of reasonable

attorneys’ fees to a prevailing party. 20 U.S.C. § 1415(i)(3)(B)(i)(I). Attorneys’ fees are
based on prevailing community rates “for the kind and quality of services furnished.” 20
U.S.C. § 1415(i)(3)(C). However, attorneys’ fees may not be awarded for services
performed after the state makes a settlement offer if “the offer is made within the time
prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an
administrative proceeding, at any time more than 10 days before the proceeding begins.”
20 U.S.C. § 1415(i)(3)(D)(i)(I).
III. Discussion
i. The Hearing Officer’s Decision
GISD argues that Ashley’s academic success precluded the need for an evaluation.
GISD further argues that it promptly evaluated Ashley once it suspected a need for
special education services. Therefore, according to GISD, it did not violate the IDEA’s
mandate. Alternatively, GISD argues that any failure to evaluate Ashley occurred prior
to February 9, 2014—one year before Ashley requested a Due Process Hearing.
Therefore, according to GISD, the one-year statute of limitations bars any relief for IDEA
violations.
GISD does not dispute that Ashley was disabled.10 GISD instead argues that it
had no duty to develop an IEP because she was succeeding academically. GISD had a

10

Had GISD not lost her records, it is hard to conceive of a situation in which it did not realize
that Ashley’s disabilities and current academic struggles entitled her to special education
11 / 18

duty to evaluate Ashley only if 1) it suspected that she was disabled; and 2) she
demonstrated a need for special education services due to her disability. See Alvin Indep.
Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382 (5th Cir. 2007).
The Court finds that the Decision correctly determined that all claims for
violations that began in 2009 and continued through Ashley’s return to GISD in 2013 are
time-barred. A one-year statute of limitations bars any claim for relief from IDEA
violations about which either party knew or should have known. See TEX. ADMIN. CODE
§ 89.1151(c). The Decision correctly noted that Ashley was time-barred from relief for
violations occurring before February 9, 2014.
The Decision further found that GISD had a continuing Child Find duty that it
failed to fulfil during the period that Ashley’s claims remained timely—from February 9,
2014 to February 9, 2015.

According to the Decision, “the failure in maintaining

accurate educational records was a continuing violation and the school district had a
continuing Child Find Duty into the Spring semester of 2014—at least beginning on or
after February 9, 2014.” Dkt. 1-2, p. 23. The Court agrees with the Decision’s ultimate
conclusion without finding that a continuing Child Find duty equitably tolled the oneyear statute of limitations. This is because GISD’s Child Find duty arose anew in the fall
of 2014.
Ashley’s academic decline, hospitalization, and incidents of theft during the
semester—taken together—were sufficient to cause GISD to suspect that her several

services. Such realization would have alerted GISD to the fact that she was severely overdue for
another IEP since returning to the school district after several years of homeschooling.
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disabilities created a need for special educational services.

The Court finds that,

conservatively, GISD should have suspected the need for an IEP by October 2014. GISD
did not attempt to conduct an evaluation until April 2015. The evaluation occurred at
least six months after GISD should have suspected that one was required, and three
months after Ashley requested a Due Process Hearing. The Court further finds that this
six-month delay was unreasonable. See Dallas Indep. Sch. Dist. v. Woody, 178 F. Supp.
3d 443, 468 (N.D. Tex. 2016) (collecting cases).

This is especially true given the

extensive notice given to GISD and the dire circumstances involved.
The Court therefore finds that GISD was derelict in its duty to timely develop an
IEP. This failure resulted in Ashley being denied a FAPE starting in the 2014 fall
semester and continuing until the issuance of the Decision. The Court therefore upholds
all relief granted in the SEHO’s Decision.
ii. Prevailing Party
GISD disputes Ashley’s assertion that she is a prevailing party. “[A] prevailing
party is one that attains a remedy that both (1) alters the legal relationship between the
school district and the handicapped child and (2) fosters the purposes of the IDEA.”
Jason D.W., v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998). See also
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“[P]laintiffs may be considered
‘prevailing parties' ... if they succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.”); El Paso Indep. Sch. Dist. v.
Richard R., 591 F.3d 417, 423 (5th Cir. 2009) (“[A] litigant must attain some judicial

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imprimatur on a material alteration of the legal relationship in order to be a prevailing
party.”).
Here, the SEHO’s Decision offers a sufficient judicial imprimatur. It altered the
legal relationship between GISD and Ashley because GISD was now obligated to provide
equitable and compensatory relief to Ashley. See Meiner v. Missouri, 800 F.2d 749, 753
(8th Cir. 1986). This relief—which included training and counseling for both Ashley and
her family and transition services to prepare Ashley for adulthood—is meaningful. That
is, it fulfills the IDEA’s purpose of providing disabled students with a free appropriate
public education.11

Ashley sought relief from GISD’s failure to provide a FAPE.

Qualitatively, Ashley received relief for much—though not all—of the relief sought.
However, this does not mean—as GISD contends—that the relief granted to Ashley was
de minimis.12 While relevant to the determination of reasonable attorneys’ fees, the fact
that Ashley was not wholly successful does not preclude her status as a prevailing party.
The Court finds that Ashley is a prevailing party.

11

Congress explicitly found that, “Disability is a natural part of the human experience and in no
way diminishes the right of individuals to participate in or contribute to society. Improving
educational results for children with disabilities is an essential element of our national policy of
ensuring equality of opportunity, full participation, independent living, and economic selfsufficiency for individuals with disabilities.” 20 U.S.C. § 1400(c)(1).
12

GISD also contends that Ashley is not the prevailing party because the relief granted was not
the relief sought. See Dawn G. v. Mabank Indep. Sch. Dist., Cause No. 3:13-CV-135-L, 2014
U.S. Dist. LEXIS 47824, at #18, *23-24 (N. D. Tex. Apr. 7, 2014). Ashley sought—inter alia—
that she be identified as a student with a disability who is eligible for special education services;
that GISD comply with all procedural and substantive requirements of the IDEA; and “any other
relief the hearing officer deems appropriate.” Dkt. 1-2, pp. 2-3. The Court finds that the
SEHO’s Decision granted these requests for relief.

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iii. Reasonable Attorneys’ Fees and Costs
The Court, “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(h)(3)(B)(i)(I).

The calculation of reasonable attorneys' fees involves an initial

calculation of a lodestar fee.13 This calculation is accomplished by multiplying the
number of hours expended on the case by counsels’ reasonable hourly rates.
The Court then considers these twelve factors:
(1) the time and labor required for the litigation;
(2) the novelty and difficulty of the questions presented;
(3) the skill required to perform the legal services properly;
(4) the preclusion of other employment by the attorney due to acceptance of
the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances;
(8) the amount involved and the result obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the “undesirability” of the case;
(11) the nature and length of the professional relationship with the client;
and
(12) awards in similar cases.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974),
abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989), superseded
in bankruptcy context by statute in In re Meronk, 249 B.R. 208 (9th Cir. BAP 2000). The
Supreme Court has held that the degree of success obtained is “the most critical factor.”
Farrar v. Hobby, 506 U.S. 103, 114 (1992). Courts have determined that this factor is

13

This involves multiplying the number of reasonable number of hours expended on the case by
the reasonable hourly rate for such representation. See La. Power & Light Co. v. Kellstrom, 50
F.3d 319, 324. (5th Cir. 1995).
15 / 18

especially important when, as here, the plaintiff succeeded on some but not all claims.
See, e.g., Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 208–09 (5th Cir. 1998).
As an initial matter, the Court is required here to calculate two lodestar figures—
one for Dorene J. Philpot and another for Deborah Ann Heaton McElvaney. Both
counsel provided affidavits containing their hourly rates and total hours worked. Dkt. 14; 1-5. Both counsel submitted updated affidavits with Ashley’s motion for summary
judgment. Dkt. 40-1; 40-2. Ashley’s counsel also provided an expert’s affidavit attesting
to the reasonableness both of counsel’s hourly rates and total hours worked. Dkt. 40-4.
GISD does not dispute these lodestar figures. The Court therefore finds the following
lodestar figures:
 Ms. Philpot






Hourly rate: $295 for pre-trial work and $315 for trial work;
Total hours: 198 hours;
Total fee: $58,378;
Total expenses: $954.54;
Total fees and expenses: $59,332.54.

 Ms. McElvaney






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Hourly rate: $250;
Total hours: 179.1 hours;
Total fee: $44,775;
Total expenses: $772;
Total fees and expenses: $45,547.

The Court finds that Ashley is entitled to attorneys’ fees as a prevailing party. 14
Taking into account the Johnson factors mentioned above—and, most importantly, the
degree of success achieved—the Court finds the following: 1) this litigation presented
difficult questions of law and thus required significant time and labor; 2) Ashley’s
counsel possessed the requisite skill and experience to zealously advocate for their client;
the hourly rates they cite were not unreasonable in light of similar cases within the
community; 3) it is not apparent that either counsel had to forego other, more lucrative
work to take this case; 4) the type of case itself is undesirable due its complexity and the
possibility of not recovering attorneys’ fees; 5) even though many of Ashley’s claims
were time-barred, she still received meaningful relief. The Court therefore adjusts the
attorneys’ fees due downward to 67% of the lodestar figures for both counsel, resulting in
the following awards:

14

GISD contends that attorneys’ fees incurred after July 31, 2015—the date of GISD’s offer of
$10,000 in consideration for a complete settlement (including attorneys’ fees)—is without merit.
The IDEA prohibits attorneys’ fees incurred “at any time more than 10 days before the
proceeding begins.” 20 U.S.C. § 1415(i)(3)(D)(i). GISD’s settlement offer was made after the
Due Process Hearing was concluded. GISD cannot now make itself liability-proof vis a vis
attorneys’ fees simply by issuing a settlement offer after the proceedings have concluded. In any
case, the IDEA also contains an exception to the § 1415(i)(3)(D)(i) prohibition where the
prevailing parent is “substantially justified in rejecting the settlement offer.” 20 U.S.C. §
1415(i)(3)(E). The Court finds that Ashley was substantially justified in so finding here.

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 Ms. Philpot
 Total fee: $39,113.26;
 Total expenses: $954.54;15
 Total fees and expenses: $40,067.80.
 Ms. McElvaney
 Total fee: $29,999,25;
 Total expenses: $772;
 Total fees and expenses: $30,771.25.
IV. Conclusion
The Court therefore GRANTS in part and DENIES in part the parties’ crossmotions for summary judgment. The Court upholds all relief granted in the SEHO’s
Decision. The Court finds that the Plaintiff is a prevailing party and is entitled to
reasonable attorneys’ fees and costs as described above. This case, having been
completely determined based on the parties’ cross-motions for summary judgment, is
hereby DISMISSED. An order of final judgment will be entered separately.
SIGNED at Galveston, Texas, this 30th day of March, 2017.
___________________________________
George C. Hanks Jr.
United States District Judge
15

Ms. Philpot’s claims for costs include, inter alia, reimbursement for $15,000 that she already
paid to Ms. McElvaney and $2,500 for an expert report prepared in preparation for the ADA and
Rehabilitation Act claims that were eventually dismissed by stipulation. As to the $2,500, the
IDEA has no provision for the recoupment of experts’ fees. 20 U.S.C. § 1415(i)(3)(B); see
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98 (2006) (“This list of
otherwise recoverable costs is obviously the list set out in 28 U.S.C. § 1920, the general statute
governing the taxation of costs in federal court, and the recovery of witness fees under § 1920 is
strictly limited by § 1821, which authorizes travel and a $40 per diem.”). As to the $15,000, Ms.
McElvaney’s affidavits did not account for receiving this amount. To avoid duplicative awards,
the Court finds that this amount is properly construed as an advance tendered by Ms. Philpot to
Ms. McElvaney for her eventual fee than as costs for Ms. Philpot.

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