Doe v. Bentonville School District

lN THE UN|TED STATES DlSTRlCT COURT

WESTERN DlSTRlCT OF ARKANSAS

FAYETTEV|LLE DlV|SlON

BR|TTANY 0, as Parent and

Next Friend of L PLA|NT|FF

V. CASE NO. 5:15-CV-5020

BENTONV|LLE SCHOOL DlSTRlCT, et al. DEFENDANTS

MEMORANDUM OP|N|ON AND ORDER

Now before the Court is Plaintist l\/lotion For Attorney’s Fees and Costs (Doc. 185).

Defendant Bentonvi||e School District (“District”) has filed a Response (Doc. 187), and

Plaintiff has filed a Rep|y (Doc. 191). The lVlotion 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

l. 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 pre-

ordained outcome of Which was a Section 504 plan (the “504 P|an"), which consisted of

progressive interventions to address Student's behavior. But the 504 P|an was never

implemented in the actual classroom. lnste`ad, the District, Parent, and Student’s therapist

all agreed that Student should immediately transfer out of his traditional kindergarten

classroom to Vista Hea|th’s Therapeutic Day Treatment program (“'l'DT”)_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 lDEA.1 Consequently, the

District did not provide Student with any special education related services. The Hearing

Officer also found that the District did a poorjob 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 l\/larch, 2013 by an occupational therapist revealed that

Student suffered from multiple sensory processing disorders. A l\/lay 2013

neuropsychological evaluation ruled out cognitive dysfunction and autistic disorder, but

identified additional diagnoses including oppositiona| 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 forthe

2013-14 school year involved “a higher level of care"-in the form of Vista Hea|th’s

residential treatment program. Doc. 187-2, p.11-15.

‘ This was perhaps because, according to the Hearing Officer's Findings of Fact, ADHD

was the only diagnosis identified as precipitating referral to theTDT.

2 “There was no record of any meetings that took place between TDT and District

personnel regarding the Student’s status or educational progress." (Doc. 187-2, p. 9).

2

On June 14, 2013, Parent presented the District with an_lDEA special education

referralform, 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.” ld. at 18-19. No decision was made with regard

to conducting additional evaluations to determine the need for special education or related

services.” ld. 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. ld. at 20.

The District’s position was that Student should begin first grade with the same 504 P|an 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 ln the meantime, however, the District proposed to implement

a temporary individualized Education P|an (“lEP"), 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. ld. 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 |EP;

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 “stumb|ing block” to a settlement that should have been reached during the first week of

schoo|_a|| 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 herse|f.

(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. Aftenn/ards, the Hearing Officer

determined that the District had violated the lDEA’s goals and purposes, and thus the

3 Parent had apparently filed her due process complaint and hearing request with the

Arkansas Department of Education on August 19"‘, the same day that she met at the

school to discuss the new SED diagnosis

denial of Student's right to a free and public education (“FAPE”). But he also found that

the District had not done so intentional|y, 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 acceptab|e, 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 |DEA and/orthat it had failed

to provide Student with FAPE. On i\/|arch 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 Aii 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 lDEA’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

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award of attorney fees pursuant to the iDEA, and then it will explain how those standards

should be applied to Parent’s contentions here.

li. LEGAL STANDARD

As the Eighth Circuit observed on appeal in this case, a prevailing parent in a state

administrative lDEA proceeding may be awarded reasonable attorney fees See Doc. 170-

1, p. 2 (citing 20 U.S.C. § 1415(i)(3)(B)(i‘)(|)). 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 beiow? “[A] plaintiff ‘prevails' when actual reiiefon 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 reasonab|e? “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).

ln 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

ld. at 430 n.3.

“The most useful starting point [is to determine] the number of hours reasonably

expended multiplied by a reasonable hourly rate.” ld. 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.” /d. Hours that were not “reasonab|y expended”.shou|d also be excluded /d.

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[.]" /d. in

determining what constitutes a “reasonabie hourly rate,” the court must consider the

“ordinary fee for similar work in the community." Gopher Oi/ Co., lnc. v. Union Oil Co. of

Cal., 757 F.Supp. 998, 1008 (D. l\/linn. 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 plaintist success in the case as a whole." Jenkins v. Mo., 127 F.3d 709, 716 (8th

Cir. 1997) (citing Hens/ey, 461 U.S. at 436, and Farrar, 506 U.S. at 114). Sometimes a

plaintiff may obtain mixed results, prevailing on some, but not al|, 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. lf,

however, the claims on which the plaintiff lost are related to those on~which she won, the

court may award a reasonable fee. Hens/ey, 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. |f the plaintiff's success

is limited, she is entitled only to an amount of fees that is reasonable in relation to the

results obtained. ld. “A reduced fee award is appropriate if the relief, however significant,

is limited in comparison to the scope of the litigation as a who|e.” ld. at 440.

l||. D|SCUSSlON

A. Who Prevai|ed at Which Level and What Did They Win?

1. Parent Prevai|ed 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-lDEA claims against the District, the matter proceeded to an administrative

hearing, which occurred overfive separate days in September and October of 201 3. ln his

November25, 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 201 3-14, and in the

process did the District violate the stay~put provisions of the lDEA?

|n 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

P|an 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 Officerfurther 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 (inexcusab|y) 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 |n June 2013, the parties met

in a request-for-referra| 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.

U|timately, 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-/`.6., two days after receiving Parent’s demand for a due

process hearing. |n ordering this relief, however, the Hearing Officer chided Parent and

her counsel for unreasonably protracting the administrative proceedings The Hearing

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Officer also opined that Parent had “thwarted [the District’s] efforts by not agreeing with the

District’s suggested lEP or their choice of an evaluator." ld. 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 lDEA and failed to provide Student with FAPE, and (2) the

administrative Order legally mandated the District to take specific action on Student's

beha|f. Whi|e 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

201 3_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 District Court Level

On |\/larch 5, 2014, more than 90 days after the issuance of the Hearing Officer’s

Final Order, Parentfi|ed suit in the United States Court forthe Eastern District of Arkansas

where the ADE is headquartered The federal lawsuit, as subsequently amended (Doc.

10), pleaded seven causes of action, including:

(1) a claim for attorney fees and costs pursuant to the lDEA for having prevailed

at the administrative level;

(2) multiple claims against all defendants for deprivation of Student’s

constitutional rights;

(3) a claim against the ADE for failing to comply with its supervisory and

enforcement obligations under the lDEA;

10

(4) a claim against the District and the ADE for violations of The No Chi|d Left

Behind Act; .

(5) claims against the ADE, the District, and the TDT for disability discrimination

in violation of Section 504 of the Rehabilitation Act;

(6) claims against the ADE and the District for disability discrimination in

violation of Title ll of the ADA; and

(7) several state law claims including allegations against seven of the individual

defendants for violating Student’s rights under the Arkansas Constitution,

and separate tort claims against the TDT and two of its employees in their

individual capacities

A|l seven of Parent’s claims were dismissed at the district court level. in specific

regard to the attorney fee claim, it was dismissed as being untimely filed On further

appeal, however, the Eighth Circuit found that Parent’s claim for attorney fees and costs

was not time barred On remand this Court has now deemed Parent the prevailing party

at the administrative level. Thus, Parent has ultimately prevailed at the district court levei,

too_but only to the extent that she vindicated her right to petition for an award of attorney

fees and costs As to each and every other claim litigated in district court, Parent did not

prevai|. lVloreover, based on its review and intimate knowledge of all of the pleadings in

this case, the Court finds that the prosecution and defense of the six dismissed claims

accounts for almost the entirety of the time and resources expended in the district court

portion of the |itigation, overa|i.

Accordingly, Parent is entitled to an award of fees and costs reasonably incurred at

the district court level to enforce her entitlement to fees and costs incurred at the

administrative level-during the due process hearing. To be clear, Parent has stated that

she does not seek fees or costs attributable to her failed pursuit of the six other causes of

action that she raised, but ultimately |ost, in district court.

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3. Mixed Results at the Circuit Court Level

ln the course of ruling on early-stage dispositive motions the Honorable J. Leon

Hoimes, United States District Judge forthe Eastern District of Arkansas dismissed both

the substantive and attorney fee components of Parent’s lDEA claims as untime|y. After

dismissing some of Parent’s other claims as legally improper, Judge Hoimes transferred

venue of the remaining claims to the undersigned in the Western District of

Arkansas_where the school district is located Thereafter, this Court dismissed the

remainder of Parent’s claims and causes of action on Summary Judgment. See Docs.

164,165. Parent then appealed the dismissal of a||_dismissed claims The Eighth Circuit

found that the lDEA claim for attorney fees was not time-barred, and consequently

reversed the dismissal of that claim. The Court affirmed the dismissals of Parent’s

remaining claims on appea|. Parent is therefore entitled to fees and costs reasonably

incurred at the Circuit level-but only with respect to the single issue on which she

prevailed

B. What is a Reasonab|e Fee?

1. State Administrative Proceedings

For the reasons explained above, Parent prevailed at the administrative level and

is entitled to an award of fees Parent’s counsel has submitted an affidavit and itemized

billing statement in support of her l\/lotion seeking $59,130.00 in attorney fees4 (Doc. 185-

` 2). “Parent believes a full fee should be awarded based on the excellent results obtained."

4 ln her l\/lotion, counsel mistakenly claims the amount is $59,280.00. (Doc. 185, p. 5).

But in doing so, counsel fails to reconcile the fact that she did not charge (per the lDEA)

for her 0.6 hour attendance at the resolution conference on August 30, 2013. See Doc

185-2.

12

ld. The District argues that the Court should “substantial|y limit [the fee award] to reflect

[Parent's] own culpability as determined by the hearing officer and in consideration of the

many unsuccessful claims [that she] pursued.” (Doc. 187, p. 13).

Having considered Parent’s l\/lotion and supporting documents the Court finds her

request for nearly $60,000.00 in fees to be excessive and unreasonable-primarily

because of the excessive hours and unnecessarily protracted manner in which Parent’s

counsel elected to litigate the due process claims and because of Parent’s relatively

marginal success Parent’s fee request must therefore be reduced See 20 U.S.C.

§1415(i)(3)(F); Hens/ey, 461 U.S. at 440. in arriving at this conclusion, the Court has

identified and weighed the relevant factors and offers the following points of explanation.5

a. Time and Labor Reasonabiy Required

“The most useful starting point [is to determine] the number of hours reasonably

expended multiplied by a reasonable hourly rate.” Hens/ey, 461 U.S. at 433. Plaintiff

seeks an award based on 237.12 hours of attorney time at the rate of $250.00 per hour,

for a total of $59,280.00. in its close review of the billing itemization and excerpts of the

administrative record included with the briefing, the Court is skeptical that counsel actually

spent What amounts to six 40-hour work Weeks on this single case during the three-month

period of time that it was litigated Regardless, forthe reasons explained beiow, 237 hours

is unreasonable here. As to the hourly rate, the Court would first observe that it has

customarily approved hourly rates in the range of $200.00 to $300.00 for comparable civil

rights litigation over which it presides based on varying degrees of counsel’s experience,

5 in some instances relevant factors are italicized within the text of this section of the

Opinion. '

13

responsibility,'and proficiency. The Court finds counsel’s requested rate of $250.00 per

hour to be generally reasonable, although it does so with reservations6

“ln calculating a reasonable fee amount, courts should exclude hours that were not

‘reasonably expended,’ such as excessive or redundant hours . . ld. at 434. “A party in-

a civil rights action is not entitled needlessly to accumulate exorbitant legal fees with the

expectation that the losing party will be called upon to pick up the entire tab.” Planned

Parenthood of Minn. v. Citizens for Cmty. Action, 558 F.2d 861, 871 (8th Cir. 1977).

Aside from the issue of whether counsel’s stated hours are accurate for lodestar

purposes the Court finds that it was not reasonably necessary to spend 237 hours

litigating the disputed issues in this case. in fact, given how quickly the District offered a

resolution proposal, there is good reason to question whether Parent is entitled to any fee

award While it is true that the District had rejected a special needs evaluation in June

6 While acknowledging that counsel certainly possesses the necessary skill and

experience to practice in this niche area of law (one that many lawyers find undesirable),

the Court has been frequently frustrated by her reputation forfailing to perform these legal

services properly. See Albright v Mountain Home School Dist., No. 3:16-CV-3011, Doc.

105, pp. 12-14. On the one hand counsels appearances before this Court reveal that she

is a passionate advocate in an under-served field of law. But on the other hand her motion

practice before this Court reflects that she has taken on more cases than she can

effectively manage. So the Court disagrees with counsel’s self-assessment that her

experience produces "efficiencies” which entitle herto a premium higher hourly rate. (Doc.

185-1, 11 15). To the contrary, as illustrated in this very case, counsel frequently lacks the

discipline to focus her claims and remedies on the issues truly in dispute, instead preferring

a shotgun approach in which she asserts multiple, cumulative causes of action in the hope

that something will stick. The side-effect of this approach (intentional or not) is to

unnecessarily run up attorney fees and costs on both sides All of that is to say, despite

her specialized knowledge and experience, counsel’s reputation and performance are not »

comparable to the quality of services provided and performed by attorneys who have been

awarded an hourly rate at the upper end of the range that the Court customarily approves

Counsel is deserving of no more than a middle-of-the-range hourly rate for similar services

And the Court specifically rejects the suggestion that counsel’s “new” billing rate of $350.00

per hour is reasonable for any of her work in this case.

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2013, the District changed its position on August 19, 2013, when Parent met with the 504

Coordinator to discuss Student's SED diagnosis (Doc. 185-5, p.19). Upon reviewing the

new information, the District’s psychological examiner“determined that a special education

referral was in order.” ld. By the end of the day on August 19th, a notice of referral

conference form had been signed by the school’s principa|, and a meeting with Parent was

scheduled for the very next day. ld. At the referral conference (which was actually

conducted on August 21st), the District sought to maintain the status quo of Student's

placement-but only while it acquired additional supporting information and conducted a

multi-faceted comprehensive evaluation. The District explained that these materials were

necessary to prepare a final |EP, including the scope of any special education services to

be provided ln the interim though, the District proposed a temporary |EP, including special

education services in numerous subject areas which Student would receive until such time

as a functional behavior assessment could be completed ld. at pp. 20-21. lnexplicably,

Parent refused to sign the consent forms necessary forthe District to obtain Student's TDT

records and she further “objected to the District’s plan, announcing that she had [already]

filed for a due process hearing."7 ld. A week later, on August 30, 2013, the parties

conducted a “resolution conference," but it was quickly adjourned8 To its credit, the

7 Parent’s request for a due process hearing was filed on August 19th, the same day

Parent provided the District with documentation of Student’s SED diagnosis (Doc. 185-5,

p. 21 ). lt is not clear whether the District based its finding of a need for the referral solely

on the SED documentation, or whether, perhaps it was also reacting to the filing of

Parent’s due process complaint

8 Parent’s counsel billed about three hours of time to prepare for the settlement

conference, but her negotiations lasted no more than half an hour. (Doc. 185-2).

Subsequent to this Parent’s counsel billed another 194.50 hours-at the end of which

Parent was awarded essentially the same relief as offered by the District on August 21st.

15

District continued to provide special education services while awaiting completion of the

hearing process

Parent’s due process complaint raised unnecessary claims against unnecessary

parties all of which were summarily dismissed.9 Parent later added a claim asserting that

the District had violated Student's “stay put" rights under the lDEA, which turned out to be

much ado about nothing.10 ld. at p. 22. The Hearing Officer was clearly frustrated by the

overly broad scope of Parent’s contentions and he seemed to believe that a lengthy

hearing was not necessary to resolve such a seemingly minor disagreement-which had

centered on Parent’s insistence that she be allowed to decide who would perform the

functional behavioral assessment11

The hearing itself was unnecessarily protracted-consuming five days spread over

two months_largely because of Parent’s unnecessary and cumulative development of

facts12 For context, ADE due process hearings generally “shou|d last no longerthan three

9 Parent’s counsel spent 3.25 hours on August 16, 2013 “researching” who the proper

parties should be. On September 5th, counsel spent another 3.5 hours “researching” ADE

and TDT issues (Doc. 185-2).

10 On September12, 2013, Parent’s counsel billed 2.0 hours for drafting a letter regarding

“stay put" violations On September 22nd and 23rd she spent a total of 4.8 more hours

researching and preparing pleadings regarding stay-put issues (Doc. 185-2). Yet, the

Hearing Officer said “[t]here was no evidence or testimony presented that would indicate

that the District violated the Student's stay put provision on entering his first grade." (Doc.

185-5, pp. 21-22).

" in fairness the Hearing Officer also scolded the District for not agreeing to a referral

evaluation in June 2013, which might have avoided the filing of the complaint altogether.

(Doc. 185-5, p. 21).

12 For example, counsel took time to develop testimony to support the tort claims she

Would later bring against the TDT in district court, despite the fact that the TDT was

dismissed as a party from the administrative complaint Counsel also spent time calling

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(3) days.” Ark. Dept. Ed, lDEA Due Process Hearing Procedures, §10.01 .32. The time line

and other core facts Were established by undisputed educational and medical records Yet

Parent called seventeen witnesses many of whom the District argues were either

impertinent or unnecessarily cumulative. By contrast, the District called one witness

Having studied the exhibits provided and the contentions made by both parties the Court

sides with the District here, and sees no reason why Parent could not have made a

complete record in 2 or 3 days time.13 l\/lultiple extra hearing days scattered over the

course of two months also resulted in redundant preparation time,14 and extra time and

expense for counsel to travel between Littie Rock and Bentonville.15 “A party is not entitled

needlesslyto accumulate exorbitant legal fees with the expectation that the losing party will

be called upon to pick up the entire tab.” Planned Parenthood, 558 F.2d at 871.

the District’s superintendent as a witness when clearly the same testimony could have

been elicited through any number of other witnesses

13 According to counsel’s billing record the hearings for Days 1 , 2, and 3 lasted a collective

24.9 hours The Court knows from its own experience that an entire jury trial (of much

greater factual complexity than the issues present here) can be tried in fewer hours

Counsel billed an additional 9.2 hours for Day 4, and she logged 9.25 more hours for Day

5. (Doc. 185-2).

1‘1 For example, prior to each successive hearing day, counsel would read the transcript

from the previous session, review exhibits again, and meet with her client one more time.

She billed 6.2 hours to read the Day1 and 2 transcripts before Day 3, and she billed 4.3

hours to read the Day 3 and 4 transcripts before Day 5. Counsel billed for reviewing these

same transcripts yet again in preparation for writing the post-hearing brief. As another

example, on October 23, 2013, counsel made two identical entries for “review exhibits and

prepare for DPH Day #5," at 4 hours of time each, for a total $2,000.00 worth of

preparation for the final day of the hearing. (Doc. 185-2).

15 Counsel bills a full hourly rate for travel, and in this case she has (generously) logged

eight hours per round trip. ln other Words, counsel billed $2,000.00 for each separate

travel day.

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b. The Amount involved and the Results Obtained

“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 Hens/ey, 461 U.S. at 436). “lf the plaintiffs success is limited [s]he is

entitled only to an amount of fees that is reasonable in relation to the results obtained /d.

(citing Hensley, 461 U.S. at 440). The award of fees to a prevailing party is intended to

“encourage prompt resolution of meritorious claims and to discourage unnecessary

litigation. This policy rationale . is served by declining to award fees when litigation yields

only relief that in all probability was attainable without the time and expense of adversarial

proceedings." Peter v. Jax, 187 F.3d 829, 837-38 (8th Cir. 1999) (citing State of N.H. v.

Adams, 159 F.3d 680, 687(1stcir. 1998)).

Parent did not prevail on several dismissed claims And while her lDEA claims were

central to the due process hearing, there is simply not much daylight between what the

District had proposed on August 21st and what the Hearing Officer ordered on November

25th. Plaintiff’s limited “success" can only be measured by: (1) the subjective value of

having veto power over the District’s choice of evaluator, and (2) the cost of not less than

eight hours of compensatory education per week, during the two-month period that was

necessary to conduct Student's evaluation. (Doc. 185-5, at p. 30-31). These measures

are certainly important and meaningful, but the remedy awarded (beyond what the District

had already agreed to provide) is relatively minor and considerably disproportionate to the

time and expense incurred by all parties The Court agrees with the Hearing Officer’s

finding that Parent “thwarted” the District’s remediation efforts “by not agreeing with the

18

District’s suggested temporary lEP or their choice of an evaluator." (Doc. 185-5, p. 30).

in other words Parent’s dogged pursuit of litigation “yielded only relief that iri all probability

was attainable without the time and expense of adversarial proceedings." Peter, 187 F.3d

at 837-38.

c. Reduced Award

Now having considered the relevant factors the Court must determine an

appropriate method of reduction. “There is no precise rule or formula for making these

[fee] determinations The district court may attempt to identify specific hours that should

be eliminated or it may simply reduce the award to account for the limited success The

court necessarily has discretion in making this equitable judgment This discretion,

however, must be exercised in light of the considerations we have identified." Hensley,

461 u.s at 436-37; see also 20 u.s.c. § 1415(1)(3)(F).

Parent seeks $59,130.00 in fees based on 236.52 hours of time,16 at a rate of

$250.00 per hour for having prevailed at the administrative level. For the reasons

explained above, the Court finds that counsel’s itemized fee request should be equitably

reduced by two-thirds (1) because the billing hours are excessive and were incurred as

a result of unreasonably protracted litigation; and (2) to reflect Parent’s limited success

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1030 (8th Cir. 2003) (finding that a 60%

fee reduction “properly reflected that much ofthe prehearing work was spent on issues that

were not ultimately tried or prevailed upon in the administrative hearing”); Warner by

Warner v. lndep. Sch. Dlst. No. 625, 134 F.3d 1333, 1337-38 (8th Cir. 1998) (affirming

16 See explanation for these corrected amounts at footnote 4, supra.

19

substantial reduction where, prior to the administrative hearing,, the school district “made

a settlement offer that included virtually all the relief later ordered by the Hearing Review

Ofl”icei“'). The Court therefore finds that Parent should be awarded reasonable attorney

fees for having prevailed at the administrative level in the sum of $19,710.00.

2. District Court Proceedings

As explained above, Parent was not the prevailing party on any substantive cause

of action at the district court level. However, she did ultimately establish that her request

for attorney fees at the administrative level was timely filed in the district court. “Where the

issues on which [Parent] lost are unrelated to those on which [s]he won, the unrelated

issues must be treated as if they were separate cases and no fees can be awarded.”

Hens/ey, 461 U.S. at 434-35.

Parent’s lVlotion lumps together counsel’s time at the district court level with hertime

at the Circuit level. in tota|, she seeks an award of $41,342.50 in billable hours This

consists of 42.1 hours of attorney time billed priorto 2016 at the rate of $250.00 per hour,

and 88.05 hours at her “new” rate of $350.00 per hour.17 According to plaintist counsel,

the itemized hours are limited to the amount of time she specifically worked on lDEA

attorney fee issues However, having compared the court filings with her itemized billing,

the Court is skeptical of counsel’s representation ln the following subsection, the Court

examines each billing entry and makes allowances for attorney time reasonably related to

and necessarily incurred in pursuit of Parent’s lDEA fee claim at the district court

level-divided into pre-remand and post-remand activities Circuit level time is addressed

17 Counsel explains that she increased her rate effective January 2016. (Doc. 185).

20

in a subsection to follow. Forthe reasons stated earlier, the Court finds $250.00 per hour

to be a reasonable hourly rate for all district and Circuit level work in this case.113

a. Pre-Remand Proceedings

Looking at counsel’s billing during the pre-remand proceedings in district court, the

Court makes the following observations and allowances

On January 10, 2014, counsel attributes 3.2 hours to drafting a settlement

letter regarding the fee issue. Compensating counsel forthis amount of time

seems generous but the Court will allow it.

On l\/larch 5, 2014, 7.3 hours are recorded for “researching and preparing”

the complaint (Doc. 1), which is a rather lengthy document-31 pages in all.

However, the claim for attorney fees consists entirely of two cumulative

sentences See Doc. 1, 11 3, and 11 F of the prayer for relief. Realizing that

other factual adornment of the pleading would have been required if the

complaint were dedicated solely to the attorney fee issue, the Court will allow

a total of 2.5 hours for preparing the complaint.

An amended complaint was filed on Juiy 16, 2014. (Doc. 10). This pleading

is even longerthan the original-54 pages But, importantly, when comparing

the amended complaint to the original complaint, the two sentences that

plead the lDEA fee claim are unchanged For this reason, the Court will not

compensate counsel for any time drafting the amended complaint

The District filed a l\/lotion for Partial Dismissal and Brief in Support (Docs.

25 and 26) on August 5, 2014, consisting of 10 total pages The basis for

dismissal of the fee claim (untime|iness) occupies three of those pages The

remaining portions seek dismissal of Parent’s § 1983 official capacity claims

and No Child Left Behind Act claims Parent filed a 10-page Response (Doc.

47), about half of which was dedicated to the fee issue. Counsel’s billing

attributes a total of 12.95 hours to reviewing, researching, and responding

to the District’s motion-which seems like a lot of time. But the time-to-file

legal issue is a novel one, and undecided in this Circuit, and given the

amount at stake the Court will allow the full amount requested

in an omnibus opinion and order filed on January 22, 2015, Judge Hoimes

granted the District’s motion and dismissed Parent’s attorney fee claim as

18 See also footnote 6, which explains why the Courtfinds counsel’s current rate of $350.00

per hour unreasonable

21

untimely (Doc. 85). Venue of the remaining claims was transferred to this

district Eleven months later, Parent filed a Rule 60(b) l\/lotion for

Reconsideration and Brief in Support (Docs. 126 and 127). Counsel

attributes a total of 9.85 hours of her time spent reading, researching, and

writing the rule 60 l\/lotion and Brief. This Court summarily rejected and

denied Parent’s l\/lotion for the reasons stated in its Order (Doc. 164).

Parent’s l\/lotion was grossly untimely.19 The l\/lotion was not in keeping with

the purposes or genuine reasons for relief under Rule 60(b), because it did

not present the Court with any new facts arguments or recent precedent

So the Court finds it unreasonable to compensate counsel for this claimed

time and will not award any fees related to it.

- Any other billed tasks not mentioned above are deemed unrelated or

unnecessary to the attorney fee issue.20

The allowances for pre-remand tasks total 18.65 hours At $250.00 per hour,

Parent is entitled to attorney fees totaling $4,662.50 for work during this phase of the

proceedings

b. Post-Remand Proceedings

The sole issue on remand from the Eighth Circuit was whether Parent was entitled

to an award of fees and costs underthe lDEA. Looking at counsel’s billing during the post-

remand proceedings to district court, the Court makes the following observations and

allowances

- Beginning with an entry on April 27, 2017, counsel itemizes 20.3 hours of

time incurred through an unsuccessful settlement conference on August 15,

2017. The Court finds these tasks to be related and necessary, but finds

19 Not only was reconsideration sought for a ruling made eleven months previously, but

Parent’s l\/lotion was filed about eight months past a deadline to notify the Court of any

additional claims to be considered (Doc. 94, p. 4), and seven months past the deadline to

seek leave to amend pleadings (Doc. 95, 11 3).

20 For example, on January 9, 2014, counsel billed 1.4 hours to prepare her bill. This is

inappropriate because keeping contemporaneous time records is not a separate legal

service. This Court has never awarded fees based on the time it takes to prepare a bill.

22

some of the time spent reading and traveling to be overstated The Court will

allow 18 hours

Following the failed settlement conference, counsel prepared and filed a

lVlotion for Sanctions (Docs. 175,176) against the District-alleging that its

representative did not come to the settlement conference with proper legal

authority to settle Parent’s claim. The Court summarily rejected Parent’s

argument and believes further, that the l\llotion was wholly unnecessary and

not well taken. The Court will not award any fees related to this Motion.

On October 5, 2017, Parent filed the instant Nlotion and Brief in Support for

the fees and costs at issue here. (Docs. 185, 186). The District then filed

its Response brief (Doc. 187), and Parent filed her Reply (Doc. 191). Since

the l\llotion had yet to be adjudicated Parent did not include a separate

request for fees related to drafting the iViotion itself. Although it is not this

Court’s custom to award fees for time spent documenting a request forfees,

the situation here is out of the ordinary, in that the Court required briefing on

the threshold dispute of whether Parent had prevailed at the administrative

hearing at all, and if so, what an appropriate fee award would be. Despite

the fact that Parent’s counsel did not make a request for fees related to

drafting the instant lVlotion, the Court believes that a reasonable fee should

be awarded Having carefully studied the briefing, and based on the Court’s

own experience, the Court will allow a total of 10 hours of time for this

service.

Any other billed tasks not mentioned above are deemed unrelated or

unnecessary to the attorney fee issue,

The allowances for post-remand tasks total 28 hours At $250.00 per hour, Parent

is entitled to an award of attorney fees totaling $7,000.00 for her work in district court

3. Circuit Court Proceedings

On appeal to the Eighth Circuit, Parent had sought to reverse the district court’s

dismissal of her: (i) lDEA claims (ii) § 1983 claims against the ADE, and (iii) § 1983 claims

against the District for its alleged constitutional and statutory civil rights violations The

appeal related to her lDEA claims had two components one based on substantive

violations the other predicated on Parent’s argument that her attorney fee claim was timely

filed in the district court Parent’s success on appeal was limited to the court’s ruling that

23

her attorney fee claim was indeed timely. Accordingly, Parent is entitled to receive

compensation for her counsel’s time spent preparing her argument as to the timeliness of

her attorney fee claim in district court However, she is not entitled to any fees based on

hertotal time spent on the appeal. Hensley, 461 U.S. at 434-35.

Parent seeks an award of $22,995.00 in attorney fees incurred on appeal. |n

support, she attaches time records as Exhibit A-2. (Doc. 185-3). There she lists two entries

in April 2016 totaling 4.8 hours related to researching and preparing the Notice of Appeal,

and 2.3 hours on l\/lay 6, 2016 for preparing the notice of appendix. Then, in one single

entry dated August 1, 2016, counsel claims a total of 58.6 hours for “Research[ing] and

fil[ing] 8th Circuit Appeal Brief." Viewing the appeal briefing as a whole, a combined total

of 65.7 hours for all appeal-related tasks does not seem completely

unreasonable_understanding that only a fraction ofthose hours would be associated with

Parent’s argument concerning the limitations period for seeking attorney fees under the

lDEA. But counsel clarifies in her Reply (Doc. 191) that her hourly itemization “[does] not

include time spent on issues that the Parent did not prevail-that time [has] already been

excluded." ld. at pp. 7-8 (emphasis in origina|). The Court has studied the appeal docket

and briefing content and finds counsel’s representation about these particular hours to be

lacking in credibility. The argument section of Parent’s brief pertaining to the limitations

issue is five pages long. The District and the ADE filed opposing briefs on appeal-but

there is no indication that Parent’s counsel read them, and she certainly did not research

or write a reply brief. So, to put a little finer point on this counsel is seeking an award of

$4,599.00 per page for her work on the limitations argument on appeal.

24

“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.” Hens/ey, 461 U.S. at 433. Counsel’s testimony

that her hours are supported by “contemporaneous time records of time spent . . . in this

litigation,” (Doc. 185-1 at 11 20), is nakedly belied by her bulk entry of 58.6 hours for a

generically described task attributed to a single day. Counsel’s documentation of her hours

is wholly inadequate, l\/lorever, the Court simply does not believe that the time claimed was

spent on the limitations issue exclusively. Counsel’s fee request must therefore be

substantially reduced The Court estimates that approximately one-fourth of Parent’s

appeal as a whole was concerned with thelimitations issue.21 A fee of $6,000.00 is

reasonable for counsel’s time incurred at the Circuit level.

4. Award of Costs

Parent seeks an award of costs incurred at the administrative level in the sum of

$3,396.58, and costs incurred at the district and Circuit levels in the combined sum of

$3,083.37. in making these claims Parent’s counsel affirms that she “reviewed the costs

and removed entries for costs not recoverable or otherwise not reasonably expended."

(Doc. 185-1, 1111 9, 11). Unfortunate|y, counsel failed to identify and brief exactly which

21 The lDEA fee issue was one part of one issue on appeal. The argument portion of

Parent’s opening brief is 25 pages in length (not including the preliminary summaries), five

pages of which argued that Parent’s fee request was timely filed The District used 15 of

its 35 argument pages to explain why lDEA fees were not timely filed Parent did not file

a reply brief. The Eighth Circuit disposed of the entire appeal in a five paragraph

opinion_two of which addressed the timeliness of filing issue. This Court readily

acknowledges`that page length is a poor measuring stick forthe relative importance ortime

devoted to any one issue. But it's the only relative measuring stick we have-in addition

to the Court’s own experience and familiarity the case-because counsel’s time records

are devoid of meaningful itemization of the 58.6 hours of time claimed

25

categories of costs are properly recoverable to a prevailing party in an lDEA action.22 The

lDEA provides that “in any action or proceeding brought underthis section, the court, in its

discretion, may award reasonable attorneys' fees as part of the [taxable] costs . . 20

U.S.C. § 1415(i)(3)(B)(i). “Costs" refers to specific categories of expenses authorized by

statute, specifically by 28 U.S.C. §§ 1920 and 1821. Arlington Cent. Sch. Dist. Bd. of

Educ. v. Murphy, 548 U.S. 291, 298 (2006). Recoverable costs generally include fees of

the clerk,‘witness fees transcripts court appointed expert fees and certain types of

copying expenses 28 U.S.C. § 1920. This statute does not permit recovery of, inter alia,

mileage and lodging expenses That said when fees are sought in civil rights cases

pursuant to § 1988, non-statutory expenses-“the sort that lawyers ordinarily include in

their bills to clients"-may be awarded as part of the attorney fee. Neufeld v. Searle Labs.,

884 F.2d 335, 342 (8th Cir. 1989). The parties have not briefed the issue of Whether the

lDEA fee statute at 20 U.S.C. § 1415(i)(3)(B) permits recovery of expenses not authorized

by § 1920, and the Court will not opine on such matters here.23 Suffice it say that the

District has not objected on that basis

22 Parent does cite Craik v. Minnesota State University Board, 738 F.2d 348, 349-50 (8th

Cir. 1984) in her Reply brief (Doc. 191, p. 7), but that case only stands forthe proposition

that an attorney's travel time may be included in a fee request if the district court finds it

reasonable under the circumstances See also McDona/d v. Armontrout, 860 F.2d 1456,

1463 (8th Cir. 1988). Craik says nothing about the recovery of travel expenses as a

statutory cost

23 See Mc/-l//ister v. Dist. of Columbia, 794 F.3d 15, 18 (D.C. Cir. 2015)(“lDEA'sfee-shifting

provision must take account of the fact that unlike section 1988, which Congress passed

as an exercise of its Fourteenth Amendment enforcement authority, Congress enacted

l DEA pursuant to the Spending Ciause.”).

26

in total, Parent seeks to recover $6,479.95 in costs. The District says that many of

these expenses Were either unnecessary or should be reduced based on Parent's'iimited

overall success With regard to taxable costs under § 1920, will Court will allow $1,140;00

forfees paid to the clerk of court and for witness and service fees The Court will also allow

$1,324.37 for exemplification expenses-the full amount requested for imaging and

copying of Parent’s due process hearing disclosures and exhibits-because the Court

cannot discern whetherthese materials were necessary to the Hearing Officer's rulings or

not And for similar reasons the Court will allow $1 ,902.30 for copies of the appendix and

Parent’s appeal brief.

With regard to costs not taxable under § 1920, Parent seeks to recover, among

otherthings $1,276.41 in mileage (including four separate trips for administrative hearings

one trip to attend an lEP conference, and one trip to attend the l\/lagistrate Judge's

settlement conference). The` Court will reduce this expense by one-third, and only allow

$850.94, because it finds that at least two trips for extra hearing days were the result of

unnecessarily protracted litigation. Parent is also seeking $494.88 for lodging expenses

related to her attendance at the due process hearings The Court Wi|| reduce that amount

by one-half, and only allow $247.44, because it believes the hearing was unnecessarily

protracted The remaining line item expenses are found to be unrelated or unnecessary

Therefore, in total, the Court will allow $5,465.05 to be recovered as costs

|V. CONCLUS|QN

Forthe reasons explained above, the Court hereby awards Parent attorney fees in

and costs as follows:

' $19,710.00 for attorney fees incurred at the state administrative level;

27

' $11,662.50 for attorney fees incurred in district court;

' $6,000.00 for attorney fees incurred iri Circuit Court; and

' $5,465.05 for combined costs incurred at all levels

lT lS THEREFORE ORDERED that Parents l\/lotion 'ForAttorney’s Fees and Costs

(Doc. 185) is GRANTED, but in the reduced sum of $37,372.50 in attorney fees and

jl\

iT is so oRDEREo on this 15 "da

$5,465.05 in costs

y of l\llarch, 2018./o

THY'L.B oi<s

uNiTE st Es oisTRicT.iuer

28