United States District Court, E.D. Arkansas, Jonesboro Division
Marshall, Jr. United States District Judge.
the Individuals with Disabilities Education Act, parents who
prevail after a due process proceeding may be entitled to
recover a reasonable attorney's fee from their
child's school district. 20 U.S.C. §
1415(i)(3)(B)(i). The statute commits the issue to the
Court's discretion, with some specific limitations. One
of those involves settlement offers: parents who reject a
timely settlement offer can't recover post-offer fees
unless they achieved more favorable results by continuing the
dispute. The Surleses' child has disabilities. An
Arkansas Department of Education hearing officer ruled for
them and against the Pocahontas School District. The parents
filed this case, invoking this Court's jurisdiction to
resolve the fee dispute. 20 U.S.C. § 1415(i)(3)(A). The
District responds that the Surleses didn't really prevail
-because it has been trying to address the family's
concerns and to provide all needed services. The family, the
District continues, rejected a settlement offer that covered
the core relief awarded. Last, the District argues hard that
the requested fees are just too high. No material facts are
disputed, and the Court can resolve the case on the
parties' cross motions for judgment.
Surleses prevailed. The hearing officer ruled for them and
awarded relief. Administrative Record 180-81. The issues were
close, mainly because the District had collaborated with the
parents and worked to meet the child's needs. The
District did not appeal. All this is sufficient to satisfy
the statute. Birmingham v. Omaha School District,
298 F.3d 731, 734 (8th Cir. 2002).
District's pre-hearing settlement offer doesn't bar a
fee award. First, the bar would apply only against post-offer
fees, not all fees. 20 U.S.C. § 1415(i)(3)(D)(i).
Second, though there was lots of back and forth right before
the due process hearing, the statute requires the Court to
freeze the frame ten days out from the hearing. The
District's 6 November 2015 settlement offer is the one
that counts. Administrative Record 73-96. As the District
urges, this was a comprehensive proposal, one that included
everything discussed between the parents and the school even
after the due process complaint was filed. But, as the
Surleses point out, the offer didn't include two things
ordered by the hearing officer: compensatory speech and
occupational therapy and a parents' veto on evaluators.
Administrative Record 180-81. The Surleses were awarded at
least eight hours a week of each kind of therapy until a new
Individualized Education Program could be prepared; and they
got to decide whether more time than that was needed.
Administrative Record 181. This therapy alone is significant
relief beyond the offer. The parents had alluded to the right
to choose evaluators and had, at one point, suggested a
particular person; but the who question wasn't really a
fighting issue. The hearing officer awarded relief
nonetheless. Here again, the Surleses got something more than
the District offered before the hearing.
the fee itself. It's not automatic, but, as the parents
emphasize, the possibility of attorney's fees is one
important part of making this statutory scheme work. All
material things considered, a fee is appropriate here, the
real question is how much.
District doesn't really contest the out-of-pocket
expenses - mostly for travel to the due process hearing,
postage, copies, and the fee for filing this case. The Court
awards $1, 082.83. That's everything requested, except
the $65 private process server's fee. The Court can't
tax that as a cost. Crues v. KFC Corp., 768 F.2d
230, 234 (8th Cir. 1985).
path-marking precedent is Hensley v. Eckerhart, 461
U.S. 424 (1983). The approximately ten hours at $180/hour
requested for fee petition work by a contract lawyer is
reasonable from every perspective. It will be awarded.
Approximately eighty-four hours at $350/hour is requested for
lead counsel's work on the case as a whole. She is able
and experienced in this specialized area. The hourly rate,
however, is too high for this work in Northeast Arkansas.
Because recovery is uncertain, the rate should be higher than
what the District's likewise able and experienced lawyer
is charging, which is $175/hour. But an hourly rate of $250
best captures the circumstances here - expertise,
amount of time compensated must also be trimmed. The Court
commends the Surleses for not seeking payment for time spent
by lead counsel's associate. The eighty-four hours
requested is still too much, though. The crucial thing is
that the Surleses achieved only modest success.
Hensley, 461 U.S. at 440. The District had been
willing to provide, and was providing, almost all the
services sought or needed after the parents raised their
concerns by filing the due process complaint. Plus, given the
amount of common ground, the hearing was unnecessarily
prolonged. In general - and with the admitted benefit of
hindsight - the whole matter could have been handled more
efficiently. For all these reasons, and based on the
Court's consideration of everything in the Administrative
Record and in the proceedings here, the Court approves sixty
hours of work by lead counsel.
Expenses $1, 082.83
Contract Counsel (10.3 x $180) $1, 854.00
Lead Counsel (60 x $250) $15, 000.00
Total $17, 936.83
$17, 936.83 total will be taxed as costs in the Judgment, as
the statute directs. ...