The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
J. P., as parent and next )
friend of A.W., a minor, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:19cv636-MHT
) (WO)
ELMORE COUNTY BOARD OF )
EDUCATION, )
)
Defendant. )
OPINION AND ORDER
Plaintiff J.P. filed the present suit against
defendant Elmore County Board of Education on behalf of
her son A.W., who is deaf and whose ability to
communicate is very limited. J.P.’s suit follows two
due-process proceedings she brought against the Elmore
County school district1 under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400.
1. According to the complaint, the Elmore County
Board of Education is the “state governmental entity
that bears exclusive responsibility for the operation,
management, and control of the Elmore County school
district.” Amended Complaint (Doc. 6) at ¶ 3; see also
Answer to Amended Complaint (Doc. 12) at ¶ 3 (admitting
same).
The first ended with a settlement agreement adopted as
an order by the IDEA hearing officer, which mandated
various changes to the services A.W. received from the
district and the district’s obligations towards him.
The second ended with an order by the same hearing
officer finding that the district had breached the
settlement agreement and denied A.W. the free
appropriate public education (FAPE) that the IDEA
promises to children with disabilities. See 20 U.S.C.
§ 1412(a)(1). The hearing officer instructed the
district to comply with the prior settlement agreement
and imposed several additional requirements for A.W.’s
education.
The complaint in this case seeks damages from the
school board under the Americans with Disabilities Act,
42 U.S.C. § 12101, and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, for what
J.P. alleges was intentional discrimination against her
son because of his disabilities. In the second count
of the complaint, J.P. also seeks attorneys’ fees under
2
the IDEA, 20 U.S.C. § 1415(i)(3)(B), for counsel’s time
spent litigating the two underlying due-process
proceedings. The court has jurisdiction pursuant to 28
U.S.C. § 1331 (federal question), 29 U.S.C. § 794a
(Section 504), and 20 U.S.C. § 1415(i)(3)(A) (IDEA).
This suit is now before the court on J.P.’s motion
for partial summary judgment on count II: her claim for
attorneys’ fees. For the reasons below, the court will
grant J.P.’s motion and find that she was the
prevailing party in both due-process proceedings.
However, the court at this juncture will not resolve
the parties’ arguments regarding the reasonableness of
counsel’s billed hours, hourly rates, and other
disputes about what fees are reasonable in this case.
Instead, the court will enter judgment in favor of J.P.
on the attorneys’ fees count and will request
clarification from J.P. regarding the precise amount of
fees sought in this case and the billing hours for
which reimbursement is requested.
3
I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought. The
court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The court must view
the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party. See Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment is appropriate “[w]here the record
taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Id.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to the hearing officer who presided over
both of the underlying due-process proceedings, A.W.
was 12 years old at the time of the latter proceeding
4
and had “multiple disabilities,” including hearing
impairment. Hearing Decision, Special Educ. Case 19-05
(Doc. 31-2) at 12.2 He can “trace simple words, write
his name, say ‘I am hungry,’ and can indicate a need to
use the bathroom.” Id. at 18. His facility with sign
language is “very limited”; a sign-language interpreter
testified during the proceeding “that she was
essentially unable to communicate with him” and was
“unable to make any progress.” Id.
Also, A.W. by that point had a long history of
behavioral difficulties: intermittent outbursts that
had become increasingly aggressive in the years before
his mother’s first due-process complaint. See id. at
12-13. In response to these behaviors, the team that
had been assembled to establish and review his
individualized education program, or IEP, see 20 U.S.C.
2. Because neither party disputes the accuracy of
the hearing officer’s findings, and because both
parties included the officer’s decision in their
evidentiary submissions, see Hearing Decision (Doc.
26-32 & Doc. 31-2), the court accepts the findings made
in that decision as true for the purposes of
adjudicating the present motion.
5
§ 1414(d), met in late 2017 and decided to place A.W.
on “homebound services” for the following quarter of
the 2017-18 academic year. Hearing Decision, Special
Educ. Case 19-05 (Doc. 31-2) at 13. Such “homebound”
instruction refers to a “one-on-one program where the
homebound child is placed into a classroom alone with
one teacher”--it need not refer literally to
instruction in the student’s home. Jeffrey S. ex rel.
Ernest S. v. State Bd. of Educ., 896 F.2d 507, 509 n.4
(11th Cir. 1990). And because the IDEA instructs that
children with disabilities should be educated in the
“least restrictive environment” possible, students
generally should not be required to receive education
at their homes rather than at school unless the latter
option is infeasible. See 20 U.S.C. § 1412(a)(5); 34
C.F.R. §§ 300.114, 300.116(c).
J.P. filed her first due-process complaint against
the district in response to the decision of A.W.’s IEP
team to place him on homebound instruction. Her
complaint sought a one-to-one aide for A.W. during
6
normal school hours, whether he was educated at school
or at home; assessments of A.W. and appropriate IEP
revisions; compensatory education for A.W. to make up
for the time the complaint alleged he had spent
receiving insufficient instruction; and other remedies.
See Request for Expedited Due Process and Pendency
Order (Doc. 26-2) at 10-13. J.P. later amended her
complaint with requests for several additional
assessments, counseling, and a more detailed list of
proposed compensatory education. See Amended Request
for Due Process Hearing and Pendency Order (Doc. 26-4 &
Doc. 31-4) at 8-11.
This complaint yielded a settlement agreement
between the parties that was adopted by the hearing
officer as an order in April 2018. See Settlement
Agreement and Order, Special Educ. Case 17-149 (Doc.
31-1) at 4. Under that agreement and order, the school
district was obligated to provide A.W. with an
interpreter for the full school day “within a
reasonable period of time,” and a one-to-one aide in
7
the meantime. Id. at 5. The district was also
required to conduct various evaluations of A.W.’s
capacities and needs, including the ”functional
behavior assessment” sought by the due-process
complaint. Id. at 8; see also Request for Expedited
Due Process and Pendency Order (Doc. 26-2) at 10. If
A.W.’s IEP team determined that homebound services were
the appropriate placement for him, the agreement
required that those services “be provided to [A.W.] at
a school or school district facility.” Settlement
Agreement and Order, Special Educ. Case 17-149 (Doc.
31-1) at 6-7. And J.P. agreed to release the district
“from any and all claims, charges or complaints”
related to “claims that were or could have been
included as part of this due process matter.” Id. at
8.
That fall, shortly after the school year began,
there were two incidents in which A.W. became
aggressive with district staff. See Hearing Decision,
Special Educ. Case 19-05 (Doc. 31-2) at 14-16. As a
8
result, his IEP team met and decided to change A.W.’s
placement back to a homebound placement, with A.W.
attending school for one hour each day and spending the
remainder of the school day at home. See id. at 16.
As the hearing officer found, “Aside from the Child’s
behavior being difficult for the District to manage,
the District provide[d] little rationale supporting the
decision to change the Child’s [placement] to a
homebound placement.” Id. at 17. Moreover, J.P. is a
single mother who works during the day, so this
placement meant that A.W. had to spend his days with a
relative who lived outside the district. See id. at
16-17. As a result, because there was no home within
the district where A.W. could receive educational
services, the district refused to schedule any
education for him at all. See id. at 17-18.
This led to J.P.’s second due-process complaint and
the hearing officer’s finding that the district had
“breached the Settlement Agreement and violated [the]
April 5, 2018 Order when the District attempted to
9
place the Child in a homebound placement and refused to
provide the homebound services at a school or school
facility for more than one hour per day.” Id. at 20.
The hearing officer found that, in changing A.W.’s
placement to homebound and offering those services at
school for only one hour per day, the district had
“decided to ignore the key provisions of the Settlement
Agreement and Order.” Id. at 21. As a result, the
hearing officer found that A.W. had “suffered a denial
of FAPE,” and the officer ordered the district to
comply with the settlement agreement, gather the IEP
team to re-assess A.W.’s placement, and provide certain
compensatory education and other services. Id. at
22-24. The present suit was filed several months
later.
III. DISCUSSION
A. Resolution of Fees on Summary Judgment
As a preliminary matter, there is a dispute between
the parties as to whether a motion for summary judgment
10
is the appropriate filing by which to address whether
and what fees are due to J.P.’s counsel. The school
board urges the court not to consider the
summary-judgment motion at all and says that J.P.
instead “is required to file a fee petition.” Response
to Motion for Summary Judgment (Doc. 30) at 1. J.P.
says that summary judgment “is an appropriate procedure
for IDEA fees earned as a result of underlying due
process administrative proceedings,” and she argues
that fees may be awarded on such motion, citing another
case from this district in which fees were ostensibly
awarded “on summary judgment.” Reply in Supp. Motion
for Summary Judgment (Doc. 37) at 2 (citing J.S.R. ex
rel. Childs v. Dale Cnty. Bd. of Educ., No.
1:13-cv-582-WKW, 2016 WL 79986 (M.D. Ala. Jan. 6, 2016)
(Watkins, C.J.)).
The IDEA provides a cause of action for plaintiffs
to bring suit for attorneys’ fees for work performed in
the course of underlying due-process proceedings. See,
e.g., Zipperer ex rel. Zipperer v. Sch. Bd. of Seminole
11
Cnty., 111 F.3d 847, 851 (11th Cir. 1997). In an
action for IDEA attorneys’ fees based on underlying
due-process proceedings that is brought as a suit
independent from the underlying proceedings--rather
than in the course of an appeal from those
proceedings--the district court sits in its capacity as
a trial court to hear the suit, by contrast to the
quasi-appellate capacity in which it reviews the
decisions of IDEA hearing officers. See Ga. State
Dep’t of Educ. v. Derrick C., 314 F.3d 545, 550-51
(11th Cir. 2002).
Summary judgment is an appropriate procedural
posture at which to resolve an independent cause of
action for IDEA attorneys’ fees. See, e.g., Blount
Cnty. Bd. of Educ. v. Bowens, 762 F.3d 1242, 1246-48
(11th Cir. 2014). On a summary-judgment motion, the
court may determine whether the plaintiff is entitled
to fees--for instance, by adjudicating whether the
plaintiff was the prevailing party in the underlying
proceedings. See, e.g., Robert v. Cobb Cnty. Sch.
12
Dist., 279 F. App’x 798, 801 (11th Cir. 2008).
As to whether summary judgment is an appropriate
posture at which to resolve the amount of fees that may
be due, the authorities are mixed. In general, motions
for fees come under Rule 54 of the Federal Rules of
Civil Procedure, which requires that “[a] claim for
attorney’s fees ... must be made by motion,” which
should be filed “no later than 14 days after the entry
of judgment.” Fed. R. Civ. P. 54(d)(2). This court
has at times taken that approach--deciding a
summary-judgment or other dispositive motion to
determine entitlement to fees, followed by a motion for
fees under the Federal Rules of Civil Procedure--in
resolving claims for attorneys’ fees under the IDEA.
See, e.g., W.T. ex rel. Tatum v. Andalusia City Schs.,
977 F. Supp. 1437, 1446-47 (M.D. Ala. 1997) (Thompson,
C.J.). Moreover, that was the approach taken by
then-Chief Judge Watkins in the only case J.P. cites
for the proposition that the amount of fees due should
be adjudicated on a summary judgment motion rather than
13
a motion under Rule 54. See J.S.R. ex rel. Childs v.
Dale Cnty. Bd. of Educ., No. 1:13-cv-582, 2015 WL
5692804, at *15 (M.D. Ala. Sept. 28, 2015) (Watkins,
C.J.) (granting summary judgment on fee claim); see
also J.S.R., 2016 WL 79986, at *1 (resolving subsequent
motion for attorneys’ fees).
In other cases, however, this court has
simultaneously resolved the merits of an IDEA claim for
attorneys’ fees and the amount of fees due. See, e.g.,
Doucet ex rel. Doucet v. Chilton Cnty. Bd. of Educ., 65
F. Supp. 2d 1249, 1264 (M.D. Ala. 1999) (Thompson, J.).
Other courts faced with similar claims have taken this
approach as well. See, e.g., Jones v. District of
Columbia, No. 15-155 (BAH), 2015 WL 5093559, at *2
(D.D.C. Aug. 18, 2015) (Howell, J.). Although the
procedural posture therefore does not prevent the court
from determining the appropriate fees, J.P.’s filings
regarding the hours and hourly rates requested are
sufficiently unclear that the court is not well
positioned to adjudicate at present the amount of fees
14
that should be awarded. To proceed as efficiently as
possible while narrowing the issues under dispute, the
court therefore will resolve today the question of
J.P.’s entitlement to fees, and it will request
clarification from J.P. as to the amount of fees she
believes are due.
B. Entitlement to Fees
In an action for attorneys’ fees under the IDEA,
“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). The hearing officer in the underlying
proceedings found that A.W. is a child with a
disability, and the school board does not argue
otherwise. See Hearing Decision, Special Educ. Case
19-05 (Doc. 31-2) at 12. Nor does the board dispute
that J.P. was the prevailing party in the second
due-process proceeding. See Response to Motion for
Summary Judgment (Doc. 30) at 9 (“Defendant does not
15
dispute that Plaintiff is entitled to some attorneys’
fees resulting from Special Education Case 19-05....”).
However, the board makes two arguments relevant to the
current matter: that J.P. did not achieve prevailing
party status in the first due-process proceeding, and
that J.P. waived her right to seek attorneys’ fees for
that proceeding in the release provision of the
settlement agreement. See id. at 5-8. The court will
address each argument in turn.
1. Prevailing Party Status
To obtain prevailing party status, parties need not
succeed on every objective of their suits. As a
general rule, “a ‘prevailing party’ is one who has been
awarded some relief by the court.” Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res.,
532 U.S. 598, 603 (2001). Parties may prevail through
court adjudication of the merits of their claims or
through a settlement agreement enforced by court order,
so long as the agreement “change[s] the legal
16
relationship between [the plaintiff] and the
defendant.” Id. at 604 (second alteration in original)
(quoting Tex. State Teachers Ass’n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 792 (1989)). The Eleventh
Circuit Court of Appeals has held specifically that
“the incorporation of the settlement into a court
order” is “sufficient judicial imprimatur ... [to]
allow for an award of attorney’s fees.” Smalbein ex
rel. Estate of Smalbein v. City of Daytona Beach, 353
F.3d 901, 905 (11th Cir. 2003).
Once a plaintiff has “crossed the ‘statutory
threshold’ of prevailing party status,” all that is
left to determine is the appropriate amount of the fee.
Tex. State Teachers Ass’n, 489 U.S. at 789. For a
plaintiff who obtains limited relief, “the degree of
the plaintiff’s success in relation to the other goals
of the lawsuit is a factor critical to the
determination of the size of a reasonable fee, not to
eligibility for a fee award at all.” Id.
As noted above, the first due-process proceeding
17
concluded with a settlement agreement that was entered
by the hearing officer as an order. See Settlement
Agreement and Order, Special Educ. Case 17-149 (Doc.
31-1) at 4. This agreement obligated the district to
provide A.W. with an interpreter for the full school
day and a one-to-one aide until the interpreter could
be put in place. See id. at 5. It also required that
the district conduct various assessments of A.W.,
including a functional behavior assessment. See id. at
7-8. And it mandated that, if A.W.’s IEP team decided
that homebound services were necessary, those services
should be provided at a school facility. See id. at
6-7.
These remedies constitute a significant part of the
relief that J.P. sought in her due-process complaint in
that proceeding. See Request for Expedited Due Process
and Pendency Order (Doc. 26-2) at 10 (seeking, inter
alia, one-to-one aide and functional behavior
assessment); see also Amended Request for Due Process
Hearing and Pendency Order (Doc. 26-4 & Doc. 31-4) at
18
8-9 (seeking additional evaluations and assessments).
They do not, of course, cover the entirety of the
relief she sought; perhaps most notably, they do not
include the compensatory education she requested. But
the board’s position that J.P. “obtained only
assessments and evaluations” simply misstates the scope
of relief encompassed by the parties’ settlement
agreement. Response to Motion for Summary Judgment
(Doc. 30) at 7. The agreement required the district to
provide A.W. with a full-day interpreter or one-to-one
aide, and it forbade the district from putting A.W.
into a homebound placement at his home rather than at a
school facility. The latter relief appears especially
significant in light of the fact that the location of
A.W.’s homebound placement and the resulting lack of
services was what prompted J.P.’s complaint in the
first place.
Accordingly, the court finds that the settlement
agreement and accompanying order of the hearing officer
constitute a “judicially sanctioned change in the legal
19
relationship of the parties.” Buckhannon, 532 U.S. at
605. J.P. therefore “crossed the ‘statutory threshold’
of prevailing party status” as to the first due-process
proceeding, regardless whether the extent of the
remedies she achieved in the settlement agreement
entitle her to a full award of attorneys’ fees. Tex.
State Teachers Ass’n, 489 U.S. at 789-90. Unless some
other reason exists why she should not receive
attorneys’ fees for that proceeding, she is entitled at
least to a partial fee award.
2. Waiver
The school board argues that J.P. should not
receive fees on the first due-process proceeding even
if she was the prevailing party because, it says, she
waived any fee claims she may have had in the release
provision of the settlement agreement. See Response to
Motion for Summary Judgment (Doc. 30) at 5. In
relevant part, the release clause at issue waives “any
and all claims, charges or complaints (‘claims’) in any
20
way relating to ... claims that were or could have been
included as part of this due process matter.”
Settlement Agreement and Order, Special Educ. Case
17-149 (Doc. 31-1) at 8.
The attorneys’ fees provision of the IDEA permits a
court to “award reasonable attorneys’ fees as part of
the costs” to, inter alia, a parent who prevails in an
underlying due-process proceeding. 20 U.S.C.
§ 1415(i)(3)(B)(i). This statutory language presents a
problem for the board’s interpretation of the
settlement agreement because it defines attorneys’ fees
not as a claim, a charge, or a complaint, but instead
as “part of the costs” arising from the underlying
proceeding. Id. The release clause at issue here is
broadly written, but it does not expressly address
either attorneys’ fees or the “costs” of the underlying
action.
Although the Eleventh Circuit Court of Appeals has
not weighed in on the question, other federal courts of
appeals have held that a release clause must expressly
21
preclude future actions for attorneys’ fees for such
actions to be foreclosed. See Lima v. Newark Police
Dep’t, 658 F.3d 324, 329-30 (3d Cir. 2011). And in the
closely related context of judgment offers under
Rule 68 of the Federal Rules of Civil Procedure, the
Eleventh Circuit has held that awards of attorneys’
fees are not foreclosed if the offer of judgment is
“silent as to costs” and “the underlying statute
defines ‘costs’ to include attorney’s fees.” Arencibia
v. Miami Shoes, Inc., 113 F.3d 1212, 1214 (11th Cir.
1997). As the Eleventh Circuit has explained in that
context, a party accepting a judgment offer “cannot be
deemed to have ... waived the right to seek” attorneys’
fees “absent a clear indication to the contrary.”
Util. Automation 2000, Inc. v. Choctawhatchee Elec.
Coop., Inc., 298 F.3d 1238, 1244 (11th Cir. 2002). The
court does not see why a plaintiff accepting a
settlement offer without a judgment provision should be
differently positioned as to the effects of that offer
on their potential to collect attorneys’ fees than a
22
plaintiff accepting a Rule 68 offer of judgment.
Moreover, under Alabama law, a court should
construe an ambiguous contract provision to “express
the intent of the parties.” Kelmor, LLC v. Ala.
Dynamics, Inc., 20 S. 3d 783, 791 (Ala. 2009) (quoting
BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So. 2d
203, 216 (Ala. 2001)). The court will not presume that
the parties intended to preclude attorneys’ fees in a
provision that by its terms forecloses neither fees nor
costs. Cf. W.L.G. v. Houston Cnty. Bd. of Educ., 975
F. Supp. 1317, 1322-23 (M.D. Ala. 1997) (Thompson, J.)
(finding waiver of fees in IDEA suit because agreement
“expressly provide[d] for a release of costs”).
C. Amount of Fees
The remaining issue before the court is the amount
of fees that J.P. should be awarded. As noted above,
ambiguities in J.P.’s filings regarding the amount of
fees due prevent the court from resolving that issue at
this juncture. Compare, e.g., Decl. of Henry L.
23
Cassady, Jr. (Doc. 26-16) at 15 (requesting $ 32,692.53
for the first due-process proceeding), with, Cassady
Billing Records, Special Educ. Case 17-149 (Doc. 26-18)
at 139 (indicating total of $ 33,171.90 for that
proceeding). The court will therefore request certain
clarifications from J.P. before resolving what fees are
due.
* * *
Accordingly, it is ORDERED that:
(1) Plaintiff J.P.’s motion for partial summary
judgment (Doc. 25) is granted to the extent that the
court finds that plaintiff J.P. was the prevailing
party in special education case nos. 17-149 and 19-05,
and that she has not waived her right to seek
attorneys’ fees for either proceeding.
(2) On or before April 16, 2021, plaintiff J.P.
should file a clarification of the total number of
hours requested and total fee sought for the work of
attorney Henry L. Cassady, Jr., on each of the special
education cases listed above. This clarification
24
should also provide a categorization of attorney
Cassady’s time entries similar to the categorization in
his declaration, see Decl. of Henry L. Cassady, Jr.
(Doc. 26-16) at 16-28, but including his entries for
0.1 hours and including brief indications of the
content of each time entry listed under each category.
(3) Defendant Elmore County Board of Education may,
if it chooses, file a response by April 23, 2021.
(4) Plaintiff J.P. may, if she chooses, file a
reply by April 28, 2021.
(5) The issue of the amount of attorneys’ fees is
set for submission, without oral argument, on April 28,
2021.
DONE, this the 6th day of April, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
25