MEMORANDUM OPINION AND ORDER
GEORGE C. HANKS, Jr., District Judge.
The parties' cross-motions for summary judgment
Ashley then brought this suit to assert her status as a prevailing party who is entitled to attorneys' fees. The cross-motions for summary judgment require the Court to decide the following issues based on the administrative record: 1) whether the Decision correctly granted Ashley relief; 2) whether Ashley is a prevailing party; and 3) whether the attorneys' fees sought are reasonable.
I. Statement of the Undisputed Facts
The undisputed facts are as follows.
In 2013, Ashley returned to GISD, enrolling at AIM College and Career Prep Center ("AIM"). AIM is a GISD charter school. Ashley's AIM application stated that she had received special education services for a disability. Additionally, Ashley's family informed GISD upon her return that she had received special education services in the past. They further informed GISD that these services had never been dismissed. Unable to locate Ashley's records, GISD determined that she had been dismissed from special education status and services.
Ashley started the ninth grade at AIM in August 2013. In September 2013, she was suspended for performing oral sex on two students in a faculty restroom. She was also placed on Disciplinary Alternative Educational Placement for two months. She was also failing three out of her five classes. GISD referred Ashley for Section 504 Plan ("504") services in November 2013.
Ashley's academic and behavioral performance improved after the fall of 2013, and she was ultimately successful in ninth grade (2013-14) at AIM. She began to struggle once again—both academically and behaviorally—in tenth grade (2014-15). She was hospitalized once again in September 2014. She was twice caught stealing in October 2014. She scored below the 20th percentile on multiple sections of the 2014 PSAT. She completed less than half of the expected credits for her fall semester (August 2014-December 2014).
In response to Ashley's continuing struggles, GISD scheduled another 504 Conference in February 2015 over protests from Ashley's family. Ashley, now represented by counsel, submitted a Special Education Due Process Hearing Request letter on February 9, 2015. During a Resolution Session held prior to the Hearing, the parties agreed that GISD would conduct a Full Individual Evaluation ("FIE"). The FIE, completed in April 2015, found that Ashley suffered from poor self-esteem, and exhibited learning disabilities in the areas of reading, math, and written expression. The FIE concluded that Ashley was eligible for special education services. The FIE did not assess Ashley's sensory needs. Nor did it assess the need for post-school transition, in-home training, parent training, sexuality education, or speech/pragmatic language.
Special Education Hearing Officer ("SEHO") Ann Vevier Lockwood conducted the Due Process Hearing, which concluded in May 2015. Both Ashley and GISD were represented by counsel. Ashley argued that GISD had denied her the right to a FAPE from 2009 through 2015. Ashley sought the following relief:
Dkt. 1-1, p. 18.
The SEHO released the Decision of the Hearing Officer on July 7, 2015. Dkt. 1-2. The Decision made the following conclusions of law and fact, categorized here based on their favorability to Ashley.
• GISD had a continuing duty to re-evaluate Ashley when she returned to the school district. GISD should have recognized that a re-evaluation was overdue and identified Ashley as a student with a disability upon her enrollment with AIM. GISD's failure to implement an appropriate Individualized Educational Plan ("IEP") harmed Ashley.
• Ashley met the criteria to be identified as the following: 1) a Student with an Emotional Disturbance; 2) a Student with Other Health Impairment; and 3) a Student with Specific Learning Disabilities.
• Ashley is entitled to compensatory and equitable relief for GISD's failure to timely meet its Child Find duty.
• A one-year statute of limitations applied time-barred all claims that arose prior to February 9, 2014.
• Ashley was not entitled to residential placement because she had not demonstrated that such treatment constituted the least restrictive environment as required by IDEA.
• GISD was not required to reimburse Ashley for the Independent Educational Evaluation ("IEE") that she had secured in preparation for the Due Process Hearing. Reimbursement is appropriate where the parent disagrees with the school district's recommendation. Here, GISD had not completed its own evaluation, so there was nothing with which to disagree.
• Any non-IDEA claims were dismissed for lack of jurisdiction.
Dkt. 1-1, pp. 31-34.
On July 21, 2015, Ashley counsel wrote to GISD. Her letter declared that Ashley was the prevailing party and thus deserving of attorneys' fees. The letter offered to reduce the attorneys' fees by 15% in consideration for a timely settlement. Dkt. 40-2. On July 31, 2015, GISD's counsel responded, concluding that "the law supports only a minimal award of attorneys' fees, if it supports any at all." Dkt. 27-1. GISD's letter further explained that, "in the interest of collaborating to secure an end to this litigation, I am authorized to negotiate a settlement in which GISD would pay $10,000 in exchange for a full release of all existing claims, including attorney's fees." Id.
The parties did not reach a settlement agreement. In August 2015, Ashley instead filed a Complaint with this Court pursuant to 20 U.S.C. § 1415(i)(2)(A). Ashley's Complaint sought to establish that she was a prevailing party in the Due Process Decision pursuant to 20 U.S.C. § 1415(i)(3)(B). GISD disagreed, asserting the following arguments in its motion for summary judgment: 1) GISD did not violate the IDEA; 2) alternatively, all relief granted by the Decision was time-barred; 3) Ashley is not a prevailing party and thus not entitled to recover attorneys' fees; and 4) alternatively, the Court should limit or deny attorneys' fees. Dkt. 27.
Ashley's Complaint included affidavits from her counsel of record, Dorene J. Philpot and Deborah Ann Heaton McElvaney regarding attorneys' fees and costs.
II. Standard of Review
i. Motion for Summary Judgment and the IDEA
Under the IDEA, a party aggrieved by an administrative decision may sue in district court. 20 U.S.C. § 1415(i)(2)(A). The district court shall receive the administrative record, hear additional evidence at any party's request, and decide based on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C). "If no party requests additional evidence to be heard by the district court, a motion for summary judgement is simply a procedural device for asking the Court to decide the case on the basis of the administrative record." C. G. v. Waller Indep. Sch. Dist., No. 4:15-CV-00123, 2016 WL 3144161, at *4 (S.D. Tex. June 6, 2016) (internal quotation marks omitted).
A district court should afford "due weight" to the Hearing Officer's Decision. Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993). However, the Decision is not conclusive. Id. The Court's review, therefore, is "virtually de novo." Id. See also Rockwall Indep. Sch. Dist. v. M.C., 816 F.3d 329, 338 (5th Cir. 2016). Here, the only additional evidence introduced by the parties were affidavits, letters, and receipts concerning attorneys' fees and settlement discussions. Relying on the same evidence available to the SEHO, the Court therefore affords due weight to the Hearing Officer's comprehensive Decision.
ii. Burden of Proof
The movant generally bears the burden of proof.
Here, the parties do not dispute GISD's IEP. Instead, the parties dispute whether GISD's failure to create an IEP led to the denial of Ashley's right to a FAPE. In the absence of an IEP, the Court thus concludes that GISD bears the burden to show by the preponderance of the evidence that the Decision was improper.
iii. The IDEA
Congress enacted the IDEA to ensure that disabled children are provided with a free appropriate public education in the least restrictive environment possible. See Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1043-44 (5th Cir. 1989). Under the IDEA, states must first "identify, locate, and evaluate all children with disabilities . . . to ensure that they receive needed special-education services." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009). This duty is known as "Child Find." Id. The state's Child Find duty is only raised if the state had reason to suspect that: 1) a student was disabled and 2) the student may currently require special education services. See Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 382 (5th Cir. 2007). After identifying a disabled child, states must next evaluate the child to ensure that she receives a FAPE. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). Conducting an annual IEP is the prescribed method of tailoring a FAPE to the needs of the individual student. See Board of Educ. v. Rowley, 458 U.S. 176, 181 (1982). An IEP is an individualized, written statement that includes, inter alia, the child's present educational and functional level, a set of measurable annual goals, and a method of measuring whether these goals have been met. 20 U.S.C § 1414(d)(1)(A).
Parties may present a complaint under the IDEA "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child. . . ." 20 U.S.C. § 1415(b)(6). Either party presenting a complaint under 20 U.S.C. § 1415(b)(6) may request an impartial due process hearing. 20 U.S.C. § 1415(f)(1)(A).
After receiving the records of the administrative proceedings and hearing additional evidence at the request of any party, the court shall grant such relief as it determines is appropriate, basing its decision on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C). Also within the court's discretion is award of reasonable attorneys' fees to a prevailing party. 20 U.S.C. § 1415(i)(3)(B)(i)(I). Attorneys' fees are based on prevailing community rates "for the kind and quality of services furnished." 20 U.S.C. § 1415(i)(3)(C). However, attorneys' fees may not be awarded for services performed after the state makes a settlement offer if "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." 20 U.S.C. § 1415(i)(3)(D)(i)(I).
i. The Hearing Officer's Decision
GISD argues that Ashley's academic success precluded the need for an evaluation. GISD further argues that it promptly evaluated Ashley once it suspected a need for special education services. Therefore, according to GISD, it did not violate the IDEA's mandate. Alternatively, GISD argues that any failure to evaluate Ashley occurred prior to February 9, 2014—one year before Ashley requested a Due Process Hearing. Therefore, according to GISD, the one-year statute of limitations bars any relief for IDEA violations.
GISD does not dispute that Ashley was disabled.
The Court finds that the Decision correctly determined that all claims for violations that began in 2009 and continued through Ashley's return to GISD in 2013 are time-barred. A one-year statute of limitations bars any claim for relief from IDEA violations about which either party knew or should have known. See TEX. ADMIN. CODE § 89.1151(c). The Decision correctly noted that Ashley was time-barred from relief for violations occurring before February 9, 2014.
The Decision further found that GISD had a continuing Child Find duty that it failed to fulfil during the period that Ashley's claims remained timely—from February 9, 2014 to February 9, 2015. According to the Decision, "the failure in maintaining accurate educational records was a continuing violation and the school district had a continuing Child Find Duty into the Spring semester of 2014—at least beginning on or after February 9, 2014." Dkt. 1-2, p. 23. The Court agrees with the Decision's ultimate conclusion without finding that a continuing Child Find duty equitably tolled the one-year statute of limitations. This is because GISD's Child Find duty arose anew in the fall of 2014.
Ashley's academic decline, hospitalization, and incidents of theft during the semester—taken together—were sufficient to cause GISD to suspect that her several disabilities created a need for special educational services. The Court finds that, conservatively, GISD should have suspected the need for an IEP by October 2014. GISD did not attempt to conduct an evaluation until April 2015. The evaluation occurred at least six months after GISD should have suspected that one was required, and three months after Ashley requested a Due Process Hearing. The Court further finds that this six-month delay was unreasonable. See Dallas Indep. Sch. Dist. v. Woody, 178 F.Supp.3d 443, 468 (N.D. Tex. 2016) (collecting cases). This is especially true given the extensive notice given to GISD and the dire circumstances involved.
The Court therefore finds that GISD was derelict in its duty to timely develop an IEP. This failure resulted in Ashley being denied a FAPE starting in the 2014 fall semester and continuing until the issuance of the Decision. The Court therefore upholds all relief granted in the SEHO's Decision.
ii. Prevailing Party
GISD disputes Ashley's assertion that she is a prevailing party. "[A] prevailing party is one that attains a remedy that both (1) alters the legal relationship between the school district and the handicapped child and (2) fosters the purposes of the IDEA." Jason D.W., v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5
Here, the SEHO's Decision offers a sufficient judicial imprimatur. It altered the legal relationship between GISD and Ashley because GISD was now obligated to provide equitable and compensatory relief to Ashley. See Meiner v. Missouri, 800 F.2d 749, 753 (8th Cir. 1986). This relief—which included training and counseling for both Ashley and her family and transition services to prepare Ashley for adulthood—is meaningful. That is, it fulfills the IDEA's purpose of providing disabled students with a free appropriate public education.
iii. Reasonable Attorneys' Fees and Costs
The Court, "in its discretion, may award reasonable attorneys' fees as part of the costs to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(h)(3)(B)(i)(I). The calculation of reasonable attorneys' fees involves an initial calculation of a lodestar fee.
The Court then considers these twelve factors:
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989), superseded in bankruptcy context by statute in In re Meronk, 249 B.R. 208 (9thCir. BAP 2000). The Supreme Court has held that the degree of success obtained is "the most critical factor." Farrar v. Hobby, 506 U.S. 103, 114 (1992). Courts have determined that this factor is especially important when, as here, the plaintiff succeeded on some but not all claims. See, e.g., Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 208-09 (5th Cir. 1998).
As an initial matter, the Court is required here to calculate two lodestar figures— one for Dorene J. Philpot and another for Deborah Ann Heaton McElvaney. Both counsel provided affidavits containing their hourly rates and total hours worked. Dkt. 1-4; 1-5. Both counsel submitted updated affidavits with Ashley's motion for summary judgment. Dkt. 40-1; 40-2. Ashley's counsel also provided an expert's affidavit attesting to the reasonableness both of counsel's hourly rates and total hours worked. Dkt. 40-4. GISD does not dispute these lodestar figures. The Court therefore finds the following lodestar figures:
The Court finds that Ashley is entitled to attorneys' fees as a prevailing party.
The Court therefore