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Brittany O v. Bentonville School District

United States District Court, W.D. Arkansas, Fayetteville Division

March 16, 2018

BRITTANY O, as Parent and Next Friend of L PLAINTIFF



         Now before the Court is Plaintiffs Motion For Attorney's Fees and Costs (Doc. 185). Defendant Bentonville School District ("District") has filed a Response (Doc. 187), and Plaintiff has filed a Reply (Doc. 191). The Motion being ripe, and for the reasons stated below, the Court finds that Plaintiff's Motion should be GRANTED, but not in the full amount requested. Plaintiff is awarded a reasonable attorney fee in the sum of $37, 372.50, and costs in the sum of $5, 465.05

         I. BACKGROUND

         Plaintiff Brittany O ("Parent") brought this action on behalf of L ("Student"), her son. Student is a child with a disability as defined in 20 U.S.C. § 1401(3). During the 2012-13 school year, Student was enrolled as a kindergartner in the District. At the time of his enrollment, Student had been diagnosed with attention deficit hyperactivity disorder ("ADHD"). Student's first six weeks in the regular classroom were marked by numerous outbursts and behavior unfit for a traditional learning environment. On September 28, 2012, the District went through the formality of an accommodation conference-the preordained outcome of which was a Section 504 plan (the "504 Plan"), which consisted of progressive interventions to address Student's behavior. But the 504 Plan was never implemented in the actual classroom. Instead, the District, Parent, and Student's therapist all agreed that Student should immediately transfer out of his traditional kindergarten classroom to Vista Health's Therapeutic Day Treatment program ("TDT")-which the District had contracted with to provide Student's education.

         There was no discussion at the time of transfer regarding the need-much less a formal evaluation-for special education services under the IDEA.[1] Consequently, the District did not provide Student with any special education related services. The Hearing Officer also found that the District did a poor job of monitoring Student's progress while at the TDT, and therefore failed to make on-going assessments as to whether Student's educational needs were being met.[2]

         Testing performed in March, 2013 by an occupational therapist revealed that Student suffered from multiple sensory processing disorders. A May 2013 neuropsychological evaluation ruled out cognitive dysfunction and autistic disorder, but identified additional diagnoses including oppositional defiant disorder and mood disorder. Despite this new information, and despite acknowledging that mere therapeutic interventions had failed to improve Student's behavior, the TDT's recommendation for the 2013-14 school year involved "a higher level of care"-in the form of Vista Health's residential treatment program. Doc. 187-2, p. 11-15.

         On June 14, 2013, Parent presented the District with an IDEA special education referral form, supported by occupational therapy and neuropsychological evaluations. The District conducted a referral conference with Parent two weeks later. Despite Parent's request that Student be placed in a regular classroom for his first grade year, the District made the decision "to wait until the Student completed his treatment with TDT before attempting a transition back into school." Id. at 18-19. No decision was made with regard to conducting additional evaluations to determine the need for special education or related services." Id. at 16. Parent found this outcome unacceptable.

         On August 19, 2013-the first day of the school year-Parent provided new documentation to the District showing that Student had been formally diagnosed with a Serious Emotional Disturbance ("SED"). That same day, after conferring with its psychological examiner, the District prepared and signed a "referral form" and scheduled a special education referral conference, which was conducted two days later. Id. at 20. The District's position was that Student should begin first grade with the same 504 Plan as was in place during his kindergarten year. The District said it needed more information, and that further evaluations were necessary, to determine the appropriateness of adding special education services. In the meantime, however, the District proposed to implement a temporary Individualized Education Plan ("IEP"), whereby Student would receive special education services in several subject areas, in the general education setting, until such time as the District could conduct a functional behavioral assessment. Id. at 20-21. Parent objected to the District's plan, seeking instead to enforce her right to a due process hearing.[3] The District's options were limited at that point, but it nevertheless agreed to make those same special education services available to Student pending a hearing.

         The due process complaint, filed on August 19, 2013, named the District, the Arkansas Department of Education ("ADE"), and the TDT as respondents. The complaint sought seven items of relief, namely:

● a declaration of Student's eligibility for special education services;
● compensatory special education and related services;
● evaluation for placement in programming services;
● development of an appropriate IEP; reimbursement of Student's transportation costs;
● assignment of a Parent-approved consultant for programming and behavioral issues; and
● a declaration of Section 504 exhaustion.

(Doc. 185-4, p. 7). The Hearing Officer would later view Parent's filing of the complaint as a "stumbling block" to a settlement that should have been reached during the first week of school-all because the District's offer contemplated the use of its own personnel to perform the evaluation, whereas Parent demanded the right to select the examiner herself. (Doc. 187-2, p. 21).

         This seemingly minor impasse eventually led to five days worth of testimony and exhibits, spread out over the course of two months. Afterwards, the Hearing Officer determined that the District had violated the IDEA'S goals and purposes, and thus the denial of Student's right to a free and public education (TAPE"). But he also found that the District had not done so intentionally, and that it had offered a significant proposal to correct its failures. In fact, the effect of the relief ultimately awarded by Hearing Officer was to require the District to immediately implement the proposal it had offered to Parent in August. Beyond that, the Order required that the District's designated examiner be someone that Parent found acceptable, too. And the District was also ordered to provide certain compensatory educational opportunities during the pendency of the evaluation process. (Doc. 185-5, pp. 30-31).

         The Hearing Officer's Order was dated November 25, 2013. The District did not appeal the Hearing Officer's findings that it had violated the IDEA and/or that it had failed to provide Student with FAPE. On March 5, 2014, Parent brought suit in the Eastern District of Arkansas, alleging a plethora of federal and state causes of action against the District, the TDT, the ADE, and seven other persons who were sued in their official and individual capacities. One of those claims sought recovery from the District for Parent's attorney fees and costs incurred during the due process proceedings. All of Parent's federal claims were eventually dismissed-some pursuant to Rule 12, and others pursuant to Rule 56. But with specific regard to the attorney fee claim, it was dismissed by the district court because suit on that claim was not commenced within the IDEA'S 90 day window to appeal (or seek fees related to) state administrative rulings in federal court.

         Parent then appealed the district court's rulings. The Eighth Circuit found Parent's attorney fee claim to have been timely filed, and it therefore reversed and remanded that claim for further consideration by this Court. The district court's other dismissals were all affirmed. Below, the Court will first discuss the legal standards generally applicable to an award of attorney fees pursuant to the IDEA, and then it will explain how those standards should be applied to Parent's contentions here.


         As the Eighth Circuit observed on appeal in this case, a prevailing parent in a state administrative IDEA proceeding maybe awarded reasonable attorney fees. See Doc. 170-1, p. 2 (citing 20 U.S.C. § 1415(i)(3)(B)(i)(1)). On remand, this Court has been tasked with determining whether attorney fees and costs should be awarded. In excercising its discretion, the Court must determine two things. First, was Parent the prevailing party in the administrative proceeding below? "[A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111 -12, (1992). And second, if Parent achieved prevailing-party status, is the amount of attorney fees sought reasonable? "The amount of the fee, of course, must be determined on the facts of each case." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).

         In calculating a reasonable fee, a number of factors should be considered:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of 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 results 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.

Id. at 430 n.3.

         "The most useful starting point [is to determine] the number of hours reasonably expended multiplied by a reasonable hourly rate." Id. at 433. "The party seeking an award of fees must submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Id. Hours that were not "reasonably expended" should also be excluded. Id. at 434. "Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary[.]" Id. In determining what constitutes a "reasonable hourly rate, " the court must consider the "ordinary fee for similar work in the community." Gopher Oil Co., Inc. v. Union Oil Co. of Cai, 757 F.Supp. 998, 1008 (D. Minn. 1991), remanded in part, 955 F.2d 519 (8th Cir. 1992).

         "The most important factor in determining what is a reasonable fee is the magnitude of the plaintiffs success in the case as a whole." Jenkins v. Mo., 127 F.3d 709, 716 (8th Cir. 1997) (citing Hensley, 461 U.S. at 436, and Farrar, 506 U.S. at 114). Sometimes a plaintiff may obtain mixed results, prevailing on some, but not all, of her claims. Where the issues on which the plaintiff lost are unrelated to those on which she won, the unrelated issues must be treated as if they were separate cases, and no fees can be awarded. If, however, the claims on which the plaintiff lost are related to those on which she won, the court may award a reasonable fee. Hensley, 461 U.S. at 435-36. If the plaintiff has won excellent results, she is entitled to a fully compensatory fee award, which will normally include time spent on related matters on which she did not win. If the plaintiffs success is limited, she is entitled only to an amount of fees that is reasonable in relation to the results obtained. Id. "A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Id. at 440.


         A. Who Prevailed at Which Level and What Did They Win?

         1. Parent Prevailed at the Administrative Level

         The administrative due process complaint named the District, the TDT, and the Arkansas Department of Education ("ADE") as Respondents, against whom Parent alleged all manner of wrongdoing, and from whom she sought multiple forms of relief. After the Hearing Officer summarily dismissed all of the claims against the TDT and ADE and all of the non-IDEA claims against the District, the matter proceeded to an administrative hearing, which occurred over five separate days in September and October of 2013. In his November 25, 2013 ruling, the Hearing Officer summarized and made findings with respect to two issues:

1. Did the District fail to evaluate and provide special education services for Student in an appropriate placement during the school year 2012-13?
2. Did the District fail to evaluate and provide special education services for Student in an appropriate placement during school year 2013-14, and in the process did the District violate the stay-put provisions of the IDEA?

         In the course of his ruling, the Hearing Officer addressed the competing merits presented by each side. As to the 2012-13 kindergarten year, on the one hand, the Hearing Officer explained the District's facially apparent reasonableness in placing Student at the TDT. After all, the disruptive behavior was severe, threatening, and repetitive to the point of adversely affecting the learning environment for other students in the classroom. Not to mention the fact that both Parent and her son's therapist were in agreement with this plan. But on the other hand, the Hearing Officer explained why the hastily prepared 504 Plan was not a substitute for the assessment of Student's "unique needs for special education intervention in the regular classroom prior to removal to a more restricted setting." (Doc. 187-2, p. 24). The Hearing Officer further expressed considerable concern about the District's subsequent lack of involvement and assessment of Student's educational progress and evolving needs.

         As to the 2013-14 first grade year, the Hearing Officer made detailed findings of additional information and diagnoses that began to surface in the Spring of 2013. The District was found to be (inexcusably) ignorant of Student's sensory and neurological disorders, because it had failed to properly supervise Student's educational process. Consequently, the District failed to identify the need to evaluate how these disorders impacted Student's need for special education services. To make matters worse, the TDT-to whom the District had effectively outsourced its educational responsibilities-had likewise failed to recognize the need for further evaluations. In June 2013, the parties met in a request-for-referral conference wherein Parent provided extensive information to support her position that Student be evaluated for a return to the traditional school environment. But the District was not persuaded to take further action, instead siding with the TDT's recommendation that Student remain under the same 504 Plan.

         Ultimately, the Hearing Officer resolved the substance of both fact questions in Parent's favor and ordered the District to implement the same plan that it had proposed to Parent on August 21, 2013-i.e., two days after receiving Parent's demand for a due process hearing. In ordering this relief, however, the Hearing Officer chided Parent and her counsel for unreasonably protracting the administrative proceedings. The Hearing Officer also opined that Parent had "thwarted [the District's] efforts by not agreeing with the District's suggested IEP or their choice of an evaluator." Id. at 30.

         In light of the above facts, the Court finds Parent to be the prevailing party at the administrative level for the following reasons: (1) the Hearing Officer determined that the District violated the IDEA and failed to provide Student with FAPE, and (2) the administrative Order legally mandated the District to take specific action on Student's behalf. While it is true that the extent of Parent's success is relatively modest when measured against the District's initial proposal, the Court is persuaded-largely because the District failed to offer a formal evaluation after its meeting with Parent in June of 2013-that the District would not have taken further action in the absence of Parent's filing of a formal complaint. The Court will therefore view the unnecessarily protracted nature of the proceedings and Parent's marginal amount of success as two of several factors it must consider when determining the reasonableness of the fee award.

         2. Mixed Results at the ...

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