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M.S. v. Utah School For Deaf And Blind

United States District Court, D. Utah

December 26, 2017

M.S., a minor, by and through her parent, J.S., Plaintiff,
v.
UTAH SCHOOL FOR THE DEAF AND THE BLIND, Defendant.

          MEMORANDUM DECISION AND ORDER AWARDING ATTORNEYS' FEES TO PLAINTIFF

          Ted Stewart United States District Judge.

         This matter is before the Court on the parties' motions regarding the proper award of attorneys' fees to Plaintiff following remand from the Tenth Circuit. For the reasons discussed below, the Court will award Plaintiff attorneys' fees in the amount of $162, 043.18.

         I. BACKGROUND

         Plaintiff, M.S., by and through her mother, J.S., originally filed this suit on June 7, 2013, based on alleged violations of the Individuals with Disabilities Education Act (“IDEA”) by Defendant Utah School for the Deaf and Blind (“USDB”). On January 8, 2013, J.S. filed for a due process hearing to resolve a number of concerns primarily regarding M.S.'s Individual Education Programs (“IEP”) for the 2010-2011, 2011-2012, and 2012-2013 school years. Plaintiff presented five procedural issues and seven substantive issues to the hearing officer for decision. The procedural issues presented were as follows: (1) Did USDB pre-determine extended school year services for the student for 2011 and 2012? (2) Was J.S. denied meaningful participation in three of the IEP team meetings? (3) Did USDB revise the 2010-2011 IEP outside of an IEP team meeting? (4) Did USDB discontinue using the FM system without the approval of the IEP team and without noticing J.S.? (5) Did USDB fail to give J.S. written notice of the changes made to M.S.'s 2011-2012 IEP?

         The seven substantive issues presented were as follows: (1) Is USDB obligated to reimburse J.S. for the travel expenses incurred in obtaining M.S.'s IEE conducted by Perkins? (2) Were the IEPs for the 2010-2011 and 2011-2012 school years appropriate? (3) Did USDB fail to properly implement M.S.'s IEP for the two years preceding the Complaint? (4) Should USDB have identified M.S. as both deaf and blind in the IEP and provided services accordingly? (5) Was Provo School District an appropriate placement for M.S.? (6) Did USDB propose an IEP for the 2012-2013 school year that was reasonably calculated to provide M.S. with an education benefit? (7) Should M.S. be placed at Perkins at USDB's expense?

         The hearing officer issued a decision on May 20, 2013, finding that USDB violated the IDEA and denied M.S. a free and appropriate public education (“FAPE”) for the summers of 2011 and 2012 and ordered compensatory services accordingly. The hearing officer further found that USDB's proposed placement to Provo School District was not appropriate. On all other matters, the hearing officer found in favor of USDB.

         Plaintiff sought review of the hearing officer's decision in this Court. Both M.S. and USDB filed motions for judgment on the administrative record. The Court issued its Order on August 25, 2014, which affirmed in part and reversed in part the hearing officer's May 10, 2013 Order. Regarding the procedural issues, the Court reversed the hearing officer's decision that USDB's discontinued use of the FM system during the 2011-2012 school year without approval of the IEP team and without written notice to J.S. did not deny M.S. a FAPE. The Court upheld the hearing officer's decision on all other procedural issues.

         Regarding the substantive issues, the Court reversed the hearing officer's decision and held in favor of M.S. on several issues. First, the Court held that USDB was obligated to reimburse J.S. for travel-related expenses incurred in connection with the Perkins IEE. Second, though the Court agreed with the hearing officer that the IEPs for the 2010-2011, 2011-2012, and 2012-2013 school years were adequate, the Court found that the 2011-2012 IEP was not adequately implemented.

         Third, the Court found that USDB failed to properly take into account M.S.'s dual sensory loss and that USDB must consider M.S.'s hearing loss when strategizing M.S.'s IEPs. Further, the Court agreed with the hearing officer that placement at Provo School District would be inappropriate because of the reduction of available services. The Court directed M.S.'s IEP team to determine if Perkins was a necessary placement for M.S. Finally, in light of its finding that M.S. was denied a FAPE for the 2010-2011 academic year, the Court ordered an academic year and a half of compensatory education.

         As the undisputed prevailing party, Plaintiff moved for an order awarding attorneys' fees. The Court awarded Plaintiff a fraction of the requested fees on account of Plaintiff's limited success. More specifically, the Court awarded Plaintiff 30 percent of the requested fees for work associated with the administrative hearing and 40 percent of the requested fees for work associated with the proceedings in this Court, for a total of $77, 489.10.

         M.S. appealed the Court's ruling to leave the decision of M.S.'s placement at Perkins to her IEP team. Plaintiff also appealed the Court's decision regarding attorneys' fees.

         The Tenth Circuit vacated the Court's orders and remanded two issues for the Court to resolve: (1) whether M.S. should be placed at Perkins and (2) the proper award of attorneys' fees.

         Following remand from the Tenth Circuit, USDB filed a motion for summary judgment on the placement issue. In response, Plaintiff filed a Rule 56(d) motion, which the Court granted. Later, Defendant filed a motion to end Plaintiff's Rule 56(d) discovery and provide a deadline for Plaintiff to respond to its summary judgement motion. Plaintiff did not oppose this motion.

         Plaintiff then filed a notice withdrawing her claim that M.S. should be placed at Perkins. Plaintiff alleged that, on consulting with her expert witness, the expert explained that she could no longer opine that M.S., now 20 years old, would benefit from placement at Perkins, given her advanced age.

         Upon Plaintiff's withdrawal of the Perkins claim, USDB withdrew its pending motion for summary judgment, leaving only the issue of attorneys' fees for the Court to resolve. The parties submitted briefing on their respective arguments for the proper amount of attorneys' fees to be awarded to Plaintiff in light of the Tenth Circuit's decision.

         II. DISCUSSION

         The IDEA provides that a court may award reasonable attorneys' fees “to a prevailing party who is the parent of a child with a disability.”[1] “[T]he level of a plaintiff's success is relevant to the amount of fees to be awarded.”[2] “Where the plaintiff has failed to prevail on a claim that is distinct in all respect from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee.”[3] “There is no precise rule or formula for making these 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.”[4]However, the Supreme Court has warned that courts must take certain considerations into account.[5]

         The Court originally awarded 30 percent of the fees associated with the due process hearing and 40 percent of the fees incurred in association with the federal court proceedings. These percentages roughly correlated to the fraction of claims on which Plaintiff was successful. On appeal, the Tenth Circuit vacated the fee order and remanded for further consideration holding, “[w]hether J.S. ultimately prevails on her claim that M.S. should be placed at Perkins is highly relevant to the question of the level of success she obtained.”[6] However, in remanding the fee award determination, the Tenth Circuit noted that the “purely mechanical analysis of an appropriate fee award, which appears to allow fees in proportion to the number of claims upon which J.S. prevailed is at odds with governing precedent.”[7] Quoting Hensley v. Eckerhardt, the Tenth Circuit explained:

In cases where a plaintiff's claims for relief involve a common core of facts or are based on related legal theories[, ] “much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”[8]

         Though the Circuit Court left the ultimate determination to this Court, it advised that “the IDEA claims at issue in this case do not appear to be ‘unrelated' as that term is defined in Hensley.[9] And further instructed,

On remand the district court must first resolve whether some of the claims raised in J.S.'s federal-court complaint were unrelated. If J.S. lost on claims that were unrelated to the claims on which she succeeded, then no fee may be awarded for counsel's services on the unsuccessful claims. If, on the other hand, the district court concludes all claims raised in J.S.'s suit are related, it must consider the significance of the overall relief obtained by J.S. in relation to the hours reasonably expended on the litigation.[10]

         Plaintiff argues she should be awarded all fees associated with the administrative, district, and appellate proceedings because each of Plaintiff's claims are related and she achieved significant success. Plaintiff further argues she should be awarded fees for the time her attorney spent in IEP meetings.

         USDB argues Plaintiff should be awarded minimal attorneys' fees because Plaintiff's unsuccessful claims are wholly unrelated to Plaintiff's successful claims and Plaintiff was not successful on her claim that M.S. should be placed at Perkins. Defendant further requests that, to the extent Plaintiff is awarded attorneys' fees, those fees should be reduced in accordance with the time expended by Defendant in unnecessary proceedings.

         a. Plaintiff is the prevailing party

         Under the IDEA, “the parents prevail ‘when actual relief on the merits of [the child's] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.'”[11] That Plaintiff was the prevailing party at both the administrative and district levels does not appear to be in dispute. M.S. may not have achieved every desired result, but both the administrative hearing officer and this Court issued orders that materially altered M.S.'s placement at USDB. M.S. therefore is the prevailing party and is entitled to an award of attorneys' fees.

         b. Plaintiff's successful claims are related to her unsuccessful claims

         The Court must next determine if the claims on which M.S. prevailed are “unrelated” to the claims on which Plaintiff was not successful. If the unsuccessful claims are unrelated to the successful claims, “the hours spent on the unsuccessful claim[s] should be excluded in considering the amount of a reasonable fee.”[12] Claims are unrelated if they are “distinctly different claims for relief that are based on different facts and legal theories.”[13] The Court in Hensley noted that “[i]t may well be that cases involving such unrelated claims are unlikely to arise with great frequency”[14]

         Regarding M.S.'s five procedural claims, each claim makes the same general allegation: that USDB denied M.S. a FAPE by failing to notify and/or consult with either J.S. or the IEP team before making a change to the IEP or the implementation of the IEP. The overlap in fact and law between the successful claim ...


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