J.D. Ex Rel. Davis v. Kanawha County Board of Education

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J.D., by his next friends; MARK 

DAVIS; TAMMY DAVIS,

Plaintiffs-Appellees,

v.  No. 08-1244

KANAWHA COUNTY BOARD OF

EDUCATION,

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph R. Goodwin, Chief District Judge.

(2:06-cv-00167)

Argued: May 14, 2009

Decided: July 9, 2009

Before Sandra Day O’CONNOR, Associate Justice

(Retired), Supreme Court of the United States, sitting by

designation, WILKINSON, Circuit Judge, and Joseph F.

ANDERSON, Jr., United States District Judge for the

District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Associate Justice O’Connor and Judge

Anderson joined.

2 J.D. v. KANAWHA COUNTY BOARD OF EDUCATION

COUNSEL

Vaughn Sizemore, BAILEY & WYANT, PLLC, Charleston,

West Virginia, for Appellant. Cynthia E. Evans, Charleston,

West Virginia, for Appellees.

OPINION

WILKINSON, Circuit Judge:

Mark and Tammy Davis, the parents of a disabled child,

were awarded attorneys’ fees by the district court under the

Individuals with Disabilities Education Act ("IDEA") after

prevailing on several claims before a hearing officer. The

defendant school board challenges the award. It argues that

attorneys’ fees were improper because the parents rejected a

settlement offer that was more favorable than the legal relief

they ultimately obtained. The school board also argues that

the parents were not a "prevailing party" under the IDEA.

We affirm the award of attorneys’ fees. Because the school

board’s settlement offer explicitly referred to terms from a

confidential mediation in violation of 20 U.S.C.

§ 1415(e)(2)(G), the district court properly refused to consider

the settlement offer as evidence. Further, that court did not

abuse its discretion in approving what was, after all, a much

reduced award for the parents that reflected the parents’ lim-

ited success. To overturn the ruling would only encourage

appeals on matters best left to trial court discretion and collat-

eral to the merits of the case.

I.

J.D. is an autistic child who in 2005 was enrolled in public

school in Kanawha County, West Virginia. His parents, Mark

and Tammy Davis, believed that J.D. was not receiving a free

J.D. v. KANAWHA COUNTY BOARD OF EDUCATION 3

appropriate public education ("FAPE") and other services due

him under the IDEA. In March 2005, his parents attended a

mediation session with representatives of the Kanawha

County Schools at which the parties drafted a settlement

agreement. But J.D.’s parents decided not to sign the

agreement—instead, they filed a due process complaint with

the Kanawha County Board of Education ("the Board") on

March 29, 2005, alleging various violations of the IDEA.

On May 13, the Board sent a letter to the parents, stating:

Please accept this letter as the written offer of Kana-

wha County Schools to settle the due process hearing

request filed on behalf of [J.D.], on the terms and

conditions set forth in the settlement agreement

reached but not signed at the mediation session held

on March 11, 2005.

The parents rejected this offer, and several months later, in

September 2005, a hearing officer conducted an administra-

tive hearing that addressed five issues. First, the hearing offi-

cer asked whether J.D.’s March 2005 individual education

plan ("IEP") provided sufficient individual instruction. The

hearing officer ruled for the Board on this issue, holding that

the IEP was appropriate. He also considered the following

four issues:

1. Whether the school erred by implementing a

new IEP in March 2005, after the parents filed

their due process complaint;

2. Whether the school properly conducted the

Multi-Disciplinary Evaluation Team assessment;

3. Whether the school owed J.D. compensatory

speech and language therapy; and

4. Whether J.D. should have received extended

school year services in 2004.

4 J.D. v. KANAWHA COUNTY BOARD OF EDUCATION

The hearing officer found for J.D. on all four issues. He

concluded that the school should not have implemented a new

IEP while the parents’ request for a due process hearing was

pending. He also ordered the Board to provide J.D. with a

new occupational therapy evaluation and with compensatory

speech and language therapy, and to hold another IEP team

meeting to determine whether J.D. required compensatory

extended school year services and any other assistance.

The parents appealed the first issue—whether the 2005 IEP

provided sufficient individual instruction—to the district

court, which affirmed the decision for the Board. The parents

also requested $112,292 in attorneys’ fees under the IDEA,

which provides that "the court, in its discretion, may award

reasonable attorneys’ fees . . . to a prevailing party who is the

parent of a child with a disability." 20 U.S.C.

§ 1415(i)(3)(B)(i). The parents argued that attorneys’ fees

were proper because they had prevailed on four of five issues

before the hearing officer.

In response, the Board argued that section 1415(i)(3)(D)(i)

of the IDEA barred the award. That section states:

Attorneys’ fees may not be awarded and related

costs may not be reimbursed in any action or pro-

ceeding under this section for services performed

subsequent to the time of a written offer of settle-

ment to a parent if —

(I) 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;

(II) the offer is not accepted within 10 days; and

(III) the court or administrative hearing officer finds

that the relief finally obtained by the parents is not

J.D. v. KANAWHA COUNTY BOARD OF EDUCATION 5

more favorable to the parents than the offer of settle-

ment.

Specifically, the Board argued that it had made a written offer

of settlement to the parents months before the administrative

hearing; the parents rejected this offer; and the settlement

terms were more favorable to the parents than the relief even-

tually provided by the hearing officer. To support its argu-

ment, the Board provided the district court with a copy of the

letter it sent to the parents on May 13, 2005, and with a copy

of the settlement agreement that was reached but not signed

at mediation.

The district court refused to consider the Board’s settlement

offer as evidence, citing the confidentiality provision of the

IDEA. That provision states that "[d]iscussions that occur dur-

ing the mediation process shall be confidential and may not

be used as evidence in any subsequent due process hearing or

civil proceeding." 20 U.S.C. § 1415(e)(2)(G). The court also

noted that the parties had signed a confidentiality agreement

that prohibited them from "revealing to anyone, including a

judge, . . . the content of any discussions which take place

during the mediation process," including "settlement propos-

als made or rejected." Therefore, the court did not look to the

Board’s settlement offer to determine whether the parents had

rejected a more favorable settlement offer before the adminis-

trative hearing, and the Board provided no other evidence to

support its claim.

Finally, the court concluded that the parents were a "pre-

vailing party" because, although they lost on the first issue,

they prevailed and received relief on three of the five claims

they raised.* The court therefore granted their motion for

attorneys’ fees, awarding them $34,072—rather than the

*The district court found that the hearing officer’s decision that the

school should not have issued a new IEP in March 2005 raised only a pro-

cedural issue and provided no remedy to J.D.

6 J.D. v. KANAWHA COUNTY BOARD OF EDUCATION

$112,292 they requested—to account for their limited suc-

cess. The Board appealed the award to this court.

The question of whether a party was a "prevailing party"

under the IDEA is a legal question that we review de novo.

We review the amount of fees awarded for abuse of discre-

tion. Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002).

II.

A.

The Board argues on appeal that the attorneys’ fees award

violated the IDEA because: (1) the Board offered to settle

more than ten days before the administrative hearing; (2) the

parents rejected this offer; and (3) "the relief finally obtained

by the parents [was] not more favorable" than the Board’s

offer. 20 U.S.C. § 1415(i)(3)(D)(i). The Board is clearly cor-

rect on the first two points. But we cannot evaluate whether

the settlement offer was more favorable than the hearing offi-

cer’s decision because, by referencing and incorporating the

terms of a confidential mediation into the offer, the Board

precluded the offer’s consideration as evidence.

The IDEA’s confidentiality provision states that

"[d]iscussions that occur during the mediation process . . .

may not be used as evidence in any subsequent due process

hearing or civil proceeding." Id. § 1415(e)(2)(G). The Board’s

settlement offer explicitly referred to the mediation discus-

sions by offering to settle "on the terms and conditions set

forth in the settlement agreement reached but not signed at the

mediation session." By referring to the mediation in the settle-

ment offer, the Board almost guaranteed that the mediation

discussions would become part of a later civil proceeding: the

dispute over attorneys’ fees. And the plain language of the

IDEA prohibits the use of mediation discussions in this way.

See id.

J.D. v. KANAWHA COUNTY BOARD OF EDUCATION 7

Nevertheless, the Board argues that the settlement offer did

not violate the confidentiality provision because the "offer to

settle was not part of the mediation, but was made after medi-

ation had concluded." But the timing of the offer is immaterial

under the statutory language. As the district court noted, the

Board cannot "circumvent the confidentiality requirements"

by referring to the mediation in its offer and introducing that

document into a civil proceeding.

The Board also argues that the district court’s interpretation

of the confidentiality provision would prevent parties from

ever offering to settle on terms discussed at meditation. For

example, the Board suggests that if parties discussed settling

for $10,000 at mediation, but did not reach agreement, the

defendant could not offer to settle at a later date for $10,000

without violating the confidentiality provision. But this argu-

ment is unpersuasive: the defendant in the hypothetical could

comply with the statutory provision by offering to settle for

the same amount but not referring to the mediation in its set-

tlement offer. And here, the Board could have offered to settle

with the parents on the same terms discussed at mediation

without referring to the mediation. Nowhere in its briefs or at

oral argument did the Board provide any reason for introduc-

ing the mediation into the settlement offer in the manner that

it did. And although the Board points to a paucity of case law

on this issue, that is likely because other boards of education

have respected the statutory language and not violated the

confidentiality provision in this way.

Finally, we note that Congress intended to encourage medi-

ation under the IDEA. The statute requires state and local

education agencies to establish mediation procedures, to

maintain a list of qualified mediators, and to pay for media-

tion costs. 20 U.S.C. § 1415(e). And the IDEA emphasizes

the confidentiality of mediations not only by requiring that all

mediation discussions remain confidential, see id.

§ 1415(e)(2)(G), but also by requiring parties that reach a res-

olution through mediation to "execute a legally binding agree-

8 J.D. v. KANAWHA COUNTY BOARD OF EDUCATION

ment" to reiterate that "all discussions that occurred during

the mediation process shall be confidential," id.

§ 1415(e)(2)(F); see also Friendship Edison Pub. Charter

Sch. Chamberlain Campus v. Smith, 561 F. Supp. 2d 74, 81

(D.D.C. 2008) (recognizing that "Congress created a mark-

edly distinct vehicle, the mediation process, for formal settle-

ment discussions").

These provisions let mediations stand free and clear of later

proceedings, and ensure that mediation discussions will not be

chilled by the threat of disclosure at some later date. Enforc-

ing the confidentiality provision is therefore critical to ensur-

ing that parties trust the integrity of the mediation process and

remain willing to engage in it. See, e.g., Ellen E. Deason,

Enforcing Mediated Settlement Agreements: Contract Law

Collides with Confidentiality, 35 U.C. Davis L. Rev. 33, 78

(Nov. 2001) ("A party that participates in mediation under a

court’s confidentiality rules is very likely to feel betrayed by

the court if the mediation is later probed in search of an

alleged agreement."). For these reasons, we affirm the district

court’s refusal to consider the settlement offer in reaching its

decision. Further, because the IDEA prohibits disclosure of

the mediation terms, we do not need to consider the force of

the parties’ contract provision, which also provided that medi-

ation discussions would be confidential.

B.

Next, the Board argues that the district court erred in

awarding attorneys’ fees because the parents were not a "pre-

vailing party" under the IDEA. 20 U.S.C.

§ 1415(i)(3)(B)(i)(I). The Board maintains that the parents

lost on a significant issue—whether the March 2005 IEP was

appropriate—and prevailed on several minor issues only. Spe-

cifically, the Board argues that the dispute over the level of

individual instruction in the March 2005 IEP was the most

important issue in the proceeding, and that J.D.’s father testi-

fied that the parents filed the due process claim primarily to

J.D. v. KANAWHA COUNTY BOARD OF EDUCATION 9

address this issue. Therefore, the Board argues, the parents

did not "substantially prevail" and attorneys’ fees were

improper.

This argument lacks merit. It is true of course that federal

prevailing party fee-shifting statutes are subject to strict stan-

dards. See Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 603 & n.4

(2001) (noting that "prevailing party" is a "legal term of art"

to be interpreted consistently across federal fee-shifting stat-

utes). As the Supreme Court noted in Buckhannon, an award

of attorneys’ fees requires a "‘material alteration of the legal

relationship of the parties.’" Id. at 604 (quoting Tex. State

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782,

792-93 (1989)); see also Combs v. Sch. Bd. of Rockingham

County, 15 F.3d 357, 360 (4th Cir. 1994). This alteration may

be accomplished either through "enforceable judgments on

the merits [or] court-ordered consent decrees." Buckhannon,

532 U.S. at 604.

Therefore, a party need not prevail on every issue or even

the most "central" issue in a proceeding to be considered a

"prevailing party." Tex. State Teachers Ass’n, 489 U.S. at

790-92. The Court rejected a "central issue" test in part

because it would "spawn a second litigation of significant

dimension" as courts attempted to distinguish "‘central’

[from] ‘tangential’ issues in the lawsuit." Id. at 791. These

cases make clear that to merit attorneys’ fees under the IDEA,

a plaintiff does not need to prove that he "substantially pre-

vailed," as the Board suggests. Rather, "obtaining judicially

sanctioned and enforceable final relief on some claims is suf-

ficient." G. ex rel. Ssgt R.G. v. Fort Bragg Dependent Schs.,

324 F.3d 240, 255 (4th Cir. 2003).

Applying these principles to this case, it is clear that the

parents were a "prevailing party." The hearing officer ordered

the Board to provide additional evaluations to J.D., to hold

another IEP meeting using an independent facilitator, and,

10 J.D. v. KANAWHA COUNTY BOARD OF EDUCATION

most importantly, to provide over thirteen hours of speech and

language therapy. This case is therefore similar to Fort Bragg

Dependent Schools, where we reviewed a district court deci-

sion rejecting the plaintiff’s claim for more individual instruc-

tion but awarding him education reimbursement expenses of

over $11,000. Id. at 254-55. We held that, despite losing on

a central claim, the plaintiff was a "prevailing party" under

the IDEA because he had received an "enforceable legal judg-

ment." Id. at 255. We reach the same conclusion here: receiv-

ing legal relief from the hearing officer brought the parents

across the statutory "threshold to a fee award of some kind."

Tex. State Teachers Ass’n, 489 U.S. at 792.

Once this threshold was crossed, the district court had dis-

cretion to determine the amount of the award. See id. at 789-

90; Fort Bragg Dependent Schs., 324 F.3d at 255 n.20. In

determining a reasonable amount of attorneys’ fees, courts

should look not only to customary hourly rates but also to "re-

sults obtained," especially where a plaintiff has "succeeded on

only some of his claims for relief." Hensley v. Eckerhart, 461

U.S. 424, 434 (1983) (internal quotation omitted); see also

Trimper v. City of Norfolk, 58 F.3d 68 (4th Cir. 1995). The

district court engaged in exactly this inquiry. It applied the

customary rate for attorneys in the community, which it found

to be $250 per hour. The court then adjusted the award down-

ward to account for the parents’ limited success. It noted that

the parents had prevailed on several of the claims and "re-

ceived some of the relief sought," but had not prevailed on

their most significant claim contesting the adequacy of the

March 2005 IEP. The court therefore awarded the parents

$34,072 of the $112,292 they requested.

In Hensley, the Supreme Court noted that "[t]here is no pre-

cise rule or formula" for determining the amount of attorneys’

fees, and that district courts "necessarily [have] discretion" in

such matters. 461 U.S. at 436-37. Here, the district court did

not grant most of the amount requested by the parents, but

took care to examine the limited relief they did receive.

J.D. v. KANAWHA COUNTY BOARD OF EDUCATION 11

Therefore, we find no basis for concluding that the award

amounted to an abuse of discretion.

III.

In sum, the Board’s assignments of error are without merit.

We find no error of law and no abuse of discretion in the dis-

trict court’s resolution of the matter. The judgment is accord-

ingly

AFFIRMED.