Somberg Ex Rel. Somberg v. Utica Cmty. Sch. ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0248p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
17-2195 /17-2197 ┐
(2:13-cv-1180) │
│
JEANNINE L. SOMBERG, on behalf of Dylan S. │
Somberg, │
Plaintiff-Appellee/Cross-Appellant, │
> Nos. 17-2195/2196/2197/2313
│
v.
│
UTICA COMMUNITY SCHOOLS, │
│
Defendant-Appellant/Cross-Appellee, │
│
RICHARD J. ALEF,
│
Defendant-Appellee/Cross-Appellant. │
│
17-2196/17-2313 │
(2:13-cv-14022) │
UTICA COMMUNITY SCHOOLS, │
│
Plaintiff-Appellant/Cross-Appellee,
│
v. │
│
RICHARD J. ALEF, │
│
Defendant-Appellee/Cross-Appellant.
│
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 2:13-cv-11810; 2:13-cv-14022—Robert H. Cleland, District Judge.
Argued: October 3, 2018
Decided and Filed: November 5, 2018
Before: GILMAN, KETHLEDGE, and BUSH, Circuit Judges.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 2
_________________
COUNSEL
ARGUED: Robert A. Lusk, Anya M. Lusk, LUSK ALBERTSON PLC, Detroit, Michigan, for
Appellant/Cross-Appellee. Richard J. Alef, Rochester, Michigan, for Appellees/Cross-
Appellants. ON BRIEF: Robert A. Lusk, Anya M. Lusk, LUSK ALBERTSON PLC, Detroit,
Michigan, for Appellant/Cross-Appellee. Richard J. Alef, Rochester, Michigan, for
Appellees/Cross-Appellants.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. This case arises under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Jeannine Somberg filed an
administrative complaint on behalf of her autistic son, Dylan Somberg, alleging that Utica
Community Schools (UCS) failed to provide him with a Free Appropriate Public Education (a
FAPE) under the IDEA during the 2012–2013 school year.
After nearly six years of litigation, the district court entered summary judgment in favor
of the Sombergs, affirming an administrative law judge’s (ALJ’s) holding that Dylan was denied
a FAPE during the school year in question, but reversing the ALJ’s decision that Dylan was not
entitled to any compensatory education for the deprivation. The court ordered UCS to pay for
1,200 hours of tutoring and one year of transition planning as compensatory education. In
addition, the court awarded the Sombergs $210,654.65 in attorney fees and costs.
UCS now appeals, and the Sombergs cross-appeal. For the reasons set forth below, we
AFFIRM all aspects of the district court’s judgement.
I. BACKGROUND
A. Factual background
Jeannine contends that UCS violated the IDEA because the Individualized Educational
Plan (IEP) that it implemented for Dylan during the 2012–2013 school year did not provide him
with a FAPE. Dylan is currently 24 years old and suffers from Autism Spectrum Disorder,
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 3
Attention Deficit Hyperactivity Disorder, Tourette’s Disorder, and symptoms of Obsessive-
Compulsive Disorder. During the 2012–2013 school year, Dylan was 18 years old and in his
fifth year of high school at UCS’s Eisenhower High School.
UCS provided Dylan with special education services and annual IEPs. Dylan’s IEP for
the 2011–2012 school year terminated in June 2012 because it was written under the assumption
that he would graduate after four years and not remain at Eisenhower for a fifth year. In
September 2012, UCS amended Dylan’s 2011–2012 IEP to extend through November 2012
without substantively changing any portion of the IEP. The IEP set several annual goals for
Dylan concerning daily living, math, reading, social and emotional situations, speech and
language, and writing. Each annual goal was supported by one or more short-term objectives.
In addition to delineating annual goals, the IEP provided that Dylan’s IEP team would
implement and document a trial of “assistive technology” for Dylan and that he would receive a
“50/50 curriculum,” meaning that his curriculum would be evenly split between special
education classes and general education classes. The “Post-Secondary Vision and Transition
Activities” section listed several of the activities in which Dylan was interested, such as his
interest in animals, that could lead to employment. But that section did not list any
accompanying next steps or resources.
Despite the IEP’s provision regarding a 50/50 curriculum, UCS attempted to place Dylan
in Community Based Inclusion (CBI) for the last two periods of his school day. CBI, according
to the testimony of a special education teacher at the due process hearing, “represents direct
instruction . . . in the areas of functional skills within a community setting . . . [such as] daily
living skills, employability training, recreation[,] leisure, [and] personal social skills.”
Dylan was enrolled in three special education classes during his first, second, and third
periods and one general education class during his fourth period. Placing Dylan in CBI for his
fifth and sixth periods was therefore inconsistent with his IEP.
After Jeannine objected to Dylan’s placement in CBI, UCS provided him with instruction
in the principal’s office. There, Dylan was secluded from other students and, in Jeannine’s
opinion, did not receive “homework or other meaningful education.” Jeannine asked to see a
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 4
class schedule so that she could find general education classes for Dylan to attend during his fifth
and sixth periods as an alternative to CBI or the principal’s office, but UCS allegedly ignored her
request until her attorney brought the issue to the ALJ’s attention. Dylan then selected several
general education classes in which to enroll, but a UCS employee told him that the classes he had
chosen were full.
UCS eventually admitted that Dylan’s class schedule between September 4, 2012 and
October 1, 2012 was not consistent with his IEP, thereby constituting the denial of a FAPE. By
June 2013, UCS had reevaluted Dylan and developed a new IEP, which was amended several
times prior to the 2013–2014 school year. UCS continued to complete annual IEPs for Dylan for
several years thereafter that it contends were in compliance with the IDEA. But Jeannine
voluntarily withdrew Dylan from UCS in October 2015 and enrolled him in a private school.
B. Procedural background
In September 2012, the Sombergs filed an administrative complaint with the Michigan
Department of Education, alleging that UCS’s IEP for Dylan did not provide him with a FAPE
as required by the IDEA. They contended, among other things, that UCS denied Dylan a FAPE
by requiring him to attend CBI in violation of his IEP. The Sombergs amended the complaint
twice to raise additional IEP issues.
UCS presented the Sombergs with a written offer of settlement in October 2012,
proposing to, among other things, “[d]etermine whether [Dylan] is entitled to compensatory
education due to his assignment to [CBI] at the beginning of the 2012–2013 school year and, if
so, provide the necessary compensatory education.” The Sombergs rejected UCS’s offer,
countering with a request for $7,195 in cash to compensate for Dylan’s denial of a FAPE
between September 3, 2012 and October 16, 2012, plus attorney fees. No settlement was
reached.
The ALJ assigned to the case subsequently held a three-day due-process hearing in
December 2012. There were four issues in contention:
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 5
1. Was Dylan denied a FAPE for the 2012–2013 school year because of
procedural errors in the September 7, 2012 IEP?
2. Was Dylan denied a FAPE for the 2012–2013 school year because the
September 7, 2012 IEP lacked measurable goals for Dylan?
3. Was Dylan denied a FAPE because the September 7, 2012 IEP failed to
address a proper transition plan?
4. Was Dylan denied a FAPE in the least restrictive environment?
The ALJ issued her Decision and Order in January 2013. First, the ALJ held that UCS
did not violate any of the procedural requirements for developing an IEP. The ALJ next held
that Dylan was denied a FAPE for the 2012–2013 school year because all but one of the goals set
forth in the September 2012 IEP were not measurable as the IDEA requires. Third, the ALJ held
that Dylan was denied a FAPE during the 2012–2013 school year because the transition plan in
the September 2012 IEP was “woefully inadequate.” Finally, the ALJ held that the Sombergs
had not established that Dylan’s IEP was inconsistent with the IDEA’s least-restrictive-
environment requirement, which provides that school districts must educate students with
disabilities alongside students without disabilities to the maximum extent possible.
The ALJ also noted that UCS had failed to comply with the IEP’s mandate to implement
and document a trial of assistive technology. And because UCS admitted that Dylan’s class
schedule at the beginning of the 2012–2013 school year was not consistent with his IEP, the ALJ
noted that this too denied Dylan a FAPE. The ALJ accordingly ordered UCS to develop a
compliant IEP within 30 school days and complete the assistive technology assessment within 15
school days. Despite finding these multiple FAPE deficiencies, the ALJ determined that Dylan
was not entitled to any compensatory education under the IDEA.
The Sombergs appealed the ALJ’s Decision and Order by filing a complaint in the United
States District Court for the Eastern District of Michigan. They contended that the ALJ erred in
(1) finding that UCS complied with the IDEA’s procedural requirements for developing an IEP
despite UCS not allowing Jeannine to meaningfully participate in the IEP process, and (2) failing
to award any compensatory education to Dylan. As the “prevailing part[ies]” under the IDEA,
they also sought attorney fees and costs.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 6
UCS responded by filing a counterclaim against Jeannine and a third-party complaint
against her attorney, Richard Alef, seeking attorney fees and costs under the IDEA. In both the
counterclaim and the third-party complaint, UCS alleged that Jeannine and Alef had filed the
administrative complaint for an improper purpose and had made fictitious claims, thus entitling
UCS to attorney fees and costs.
By stipulation of the parties, the court severed the third-party complaint against Alef into
a separate action. The court ultimately dismissed the claim against him. Utica Cmty. Schs. v.
Alef, No. 13-14022, 2017 WL 5892223, at *2 (E.D. Mich. Feb. 9, 2017). UCS appealed, and this
court affirmed. Utica Cmty. Schs. v. Alef, 710 F. App’x 673, 676 (6th Cir. 2017). The district
court also eventually held that UCS’s counterclaim against Jeannine was without merit.
On the merits of the Sombergs’ appeal of the ALJ’s order, the district court denied the
parties the opportunity to conduct discovery beyond the administrative record. The parties
subsequently filed cross-motions for summary judgment. In the Sombergs’ motion, they
contended that the court should reverse the ALJ’s findings that (1) there was no procedural
violation of the IDEA despite UCS not allowing Jeannine to participate in the IEP process, and
(2) Dylan was not entitled to any compensatory education. UCS in turn contended in its cross-
motion that it had always provided Dylan with a FAPE and that, even if it had not, no
compensatory education was due him.
In March 2016, the district court granted the Sombergs’ motion for summary judgment
and denied UCS’s cross-motion. The court affirmed the ALJ’s decision that there was no
procedural violation of the IDEA during the 2012–2013 school year, affirmed the ALJ’s decision
that Dylan was denied a FAPE during that school year due to the IEP’s lack of measurable goals
and an adequate transition plan, but reversed the ALJ’s order that Dylan was not entitled to any
compensatory education. Accordingly, the court ordered UCS to pay for a yet-to-be-determined
amount of compensatory education for Dylan, suggesting that “further proceedings and perhaps
expert testimony [would] be required to determine the proper quality and quantity of
compensatory education that must be awarded.”
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 7
The district court later held a bench trial to determine the appropriate amount of
compensatory education due Dylan for UCS’s failure to provide him with a FAPE during the
2012–2013 school year. Based on the evidence presented at the bench trial, the court ordered
UCS to pay for 1,200 hours of tutoring and one year of transition planning. Because the “details
of the implementation” of the compensatory education were “beyond the ken of the court,” it
appointed a special master to oversee Dylan’s compensatory education. The court also ordered
UCS to pay the Sombergs $208,807.50 in attorney fees and $1,847.15 in expenses, which
includes the fees and costs associated with litigating the administrative appeal and with
defending Alef against UCS’s third-party complaint. UCS has timely appealed, and the
Sombergs have timely cross-appealed.
II. ANALYSIS
A. Standard of review
We review the district court’s award of compensatory education and attorney fees under
the abuse-of-discretion standard. Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 316 (6th
Cir. 2007) (compensatory education); Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 308–
09 (6th Cir. 1988) (attorney fees). “A district court abuses its discretion when it relies upon
clearly erroneous factual findings, applies the law improperly, or uses an erroneous legal
standard.” Wikol ex rel. Wikol v. Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 611 (6th
Cir. 2004).
B. The IDEA and compensatory education
Under the IDEA, schools that receive federal funds for education must provide every
disabled student with a FAPE. 20 U.S.C. § 1412(a)(1)(A). To provide a FAPE, schools must
develop, review, and be prepared to revise an IEP for each such student. Id. § 1412(a)(4). “The
IEP must (1) comply with the procedures set forth in the IDEA and (2) be ‘reasonably calculated
to enable the [student] to receive educational benefits.’” L.H. v. Hamilton Cty. Dep’t of Educ.,
900 F.3d 779, 788 (6th Cir. 2018) (alteration in original) (quoting Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206–07 (1982)). To be reasonably calculated
to enable the student to receive educational benefits, the IEP must include, among other things,
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 8
“a statement of measurable annual goals,” “a description of how the child’s progress toward
meeting the annual goals . . . will be measured,” “appropriate measurable postsecondary goals
based upon age appropriate transition assessments related to training, education, employment,
and, where appropriate, independent living skills,” and “transition services (including courses of
study) needed to assist the child in reaching those goals.” 20 U.S.C. § 1414(d)(1)(A)(i).
If a parent or guardian is unhappy with her child’s IEP, the IDEA provides several
procedural mechanisms by which she may challenge it. One option allows aggrieved parents to
submit a complaint to the school. Id. § 1415(b)(6). If that fails to resolve the issue, then the
parents and the school may enter voluntary mediation. Id. § 1415(e)(2)(A)(i). The next step
allows the parents to file a due process complaint with a state administrative agency, which will
subsequently assign an independent ALJ to hold a due process hearing. Id. § 1415(b)(7)(A); 34
C.F.R. § 300.507. Once the ALJ rules, either aggrieved party may file suit in federal district
court to challenge the decision. 20 U.S.C. § 1415(i)(2)(A).
A complaint concerning an IEP may allege both procedural and substantive violations of
the IDEA. Id. § 1415(f)(3)(E). Procedural violations generally concern “the preparation of an
IEP.” Rowley, 458 U.S. at 206. Substantive violations concern the substance of the IEP;
namely, whether the school has provided “an educational program reasonably calculated to
enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex
rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017).
If a district court determines that a school district has violated the IDEA by denying the
student in question a FAPE, then the court shall “shall grant such relief as the court determines is
appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). In so doing, the court has broad discretion. Knable
ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 770 (6th Cir. 2001). One type of relief
that a court may provide is an award of compensatory education. L.M., 478 F.3d at 316 (“An
award of compensatory education is an equitable remedy that a court can grant as it finds
appropriate [under § 1415(i)(2)(C)(iii)].”). Compensatory education is “[a] judgment that simply
reimburses a parent for the cost of obtaining educational services that ought to have been
provided free.” Hall v. Knott Cty. Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991).
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 9
C. Because the Sombergs are seeking backward-looking relief, the case is not moot.
UCS’s initial contention is that the district court erred in failing to dismiss the case on
mootness grounds because, after the alleged FAPE violations occurred, Jeannine withdrew Dylan
from UCS. The court concluded that the case was not moot because the Sombergs sought
compensatory education to remedy past FAPE violations rather than injunctive relief.
As the district court correctly concluded, the present case is not moot. “A case becomes
moot only when it is impossible for a court to grant any effectual relief whatever to the
prevailing party, and a change in circumstances that renders a court unable to grant petitioners
meaningful relief may prudentially moot an action.” Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d
402, 406 (6th Cir. 2013) (citations and internal quotation marks omitted). In Barnett v. Memphis
City Schools, 113 F. App’x 124 (6th Cir. 2004), this court addressed a similar issue to the one
now before us, holding that a student’s claim for compensatory education was not moot when he
aged out of the school district that had denied him a FAPE. This is because “[c]ompensatory
education is a judicially-constructed form of relief designed to remedy past educational failings.”
Id. at 126 (emphasis added). The district court in Barnett therefore had the ability to award
meaningful relief to the student, even when he no longer attended school within the district. See
id.
The cases that UCS cites, including Fialka-Feldman v. Oakland University Board of
Trustees, 639 F.3d 711 (6th Cir. 2011), are distinguishable. In those cases, the students were
seeking injunctions. See, e.g., id. at 716–17. But here, neither the Sombergs nor UCS
challenged the ALJ’s award of prospective, injunctive relief. The only merits issue before us is
whether the Sombergs are entitled to backward-looking relief in the form of compensatory
education. And an award of compensatory education would provide meaningful relief to Dylan
as a remedy for UCS’s past IDEA violations. The fact that Dylan is not currently a student
within the UCS system is irrelevant because the relief would reimburse the Sombergs for “the
cost of obtaining educational services that ought to have been provided free.” See Hall, 941 F.2d
at 407. Accordingly, the district court correctly held that this case is not moot.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 10
D. The district court did not abuse its discretion in awarding the Sombergs
compensatory education.
The merits issues presented in this appeal are relatively narrow. UCS has not appealed
the district court’s affirmance of the ALJ’s findings that UCS denied Dylan a FAPE during the
2012–2013 school year. In fact, UCS admitted in the administrative record that it failed to
comply with Dylan’s IEP in the beginning of the September 2012 school year by assigning him
to CBI and failing to provide him with a 50/50 curriculum.
UCS instead contends that we should reverse the district court’s order awarding Dylan
compensatory education. But the Sombergs, in their cross-appeal, contend that the court erred in
awarding only 1,200 hours of tutoring and one year of transition planning as compensatory
education to Dylan. The central issues in this appeal are therefore (1) whether the district court
abused its discretion in reversing the ALJ’s determination that Dylan is not entitled to any
compensatory education for the denial of a FAPE during the 2012–2013 school year, and
(2) whether the manner and amount of compensatory education that the court awarded
constitutes an abuse of discretion.
1. UCS’s appeal
a. The district court’s conclusion that it owed little deference
to the ALJ’s decision regarding compensatory education
constitutes harmless error.
UCS argues that the trial court erred in concluding that it owed less deference to the
ALJ’s decision that the Sombergs were not entitled to any compensatory education. In
reviewing an ALJ’s decision in an IDEA case, district courts apply a “modified de novo”
standard that requires the court “to make findings of fact based on a preponderance of the
evidence contained in the complete record, while giving some deference to the fact findings of
the administrative proceedings.” Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 849–50 (6th
Cir. 2004) (internal quotation marks omitted). When educational expertise is relevant to an
ALJ’s finding, the reviewing court affords the finding more weight. McLaughlin v. Holt Pub.
Schs. Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003). But when educational expertise is not
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 11
relevant to the finding, the reviewing court affords the finding less weight because the court is as
well suited to evaluate the issue as the ALJ. Id.
The ALJ in the present case held, without any explanation, that “[Dylan] is not entitled to
compensatory relief.” This lack of explanation caused the district court to conclude that the
ALJ’s holding was not based on educational expertise. And because the court determined that
the finding was not based on educational expertise, the court afforded it “considerably less
deference.”
UCS contends, however, that the ALJ’s finding without any explanation can still be
based on educational expertise. This court may presume, UCS argues, that the ALJ’s decision is
based on educational expertise because the Sombergs introduced no evidence at the
administrative hearing to demonstrate any educational loss due to UCS’s IDEA violations.
UCS’s argument is a plausible one. See M.G. by & through C.G. v. Williamson Cty. Schs.,
720 F. App’x 280, 284 (6th Cir. 2018) (allowing a presumption that an ALJ’s findings were
based on educational expertise). On the other hand, even a decision based on educational
expertise is less persuasive if no reasoning is provided. Although the district court likely erred in
concluding that it owed “considerably less deference” to the ALJ’s finding that Dylan was not
entitled to compensatory education, we find that the error was harmless.
The district court reversed the ALJ’s conclusion about compensatory education only after
evaluating the preponderance of the evidence in the record, as required by the modified de novo
standard, and later conducted a bench trial on this very issue. In a judicial review of other
administrative agency decisions, by contrast, courts apply the highly deferential “substantial
evidence” standard. See, e.g., Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(explaining that judicial review of decisions of the Commissioner of Social Security “is limited
to determining whether it is supported by substantial evidence”); Cutlip v. Sec’y of Health &
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (defining “substantial evidence” as “more than a
scintilla of evidence but less than a preponderance”).
So even if the district court in the present case had afforded a higher level of deference to
the ALJ, it still would have had to apply the modified de novo standard, independently
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 12
reexamining the evidence for itself. It would not have been able to “simply adopt the state
administrative findings without an independent re-examination of the evidence.” See Doe v.
Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir. 1998). In sum, we find no reversible
error regarding the district court’s determination that Dylan is entitled to compensatory
education.
UCS next contends that the Sombergs bore the burden of proving Dylan’s entitlement to
compensatory education and the extent of his educational loss, and that the Sombergs failed to
meet that burden. The district court did not explicitly discuss which party bore the burden of
proof on this issue, but reasoned that Dylan’s need for compensatory education was obvious
from the nature of the IDEA violations in the record—which included a lack of measurable goals
and Dylan’s placement in a secluded room. Moreover, after a bench trial, the court cited other
evidence that UCS’s IDEA violations had caused Dylan educational harm.
We further note that the IEP violations at issue in this case are substantive violations. See
L.H. v. Hamilton Cty. Dep’t of Educ., 900 F.3d 779, 789 (6th Cir. 2018) (noting that substantive
violations “concern the substance of the IEP; namely whether the school has provided an
educational program reasonably calculated to enable a child to make progress appropriate in light
of the child’s circumstances” (citation omitted)). Unlike procedural IEP violations, which
require parents to meet their burden of persuasion to show an “educational loss,” substantive IEP
violations do not require such a showing. 20 U.S.C. § 1415(f)(3)(E)(ii)(III); see Knable ex rel.
Knable v. Bexley City Sch. Dist., 238 F.3d 755, 769 (6th Cir. 2001) (“[A] procedural violation of
the IDEA is not a per se denial of a FAPE; rather, a school district’s failure to comply with the
procedural requirements of the Act will constitute a denial of a FAPE only if such violation
causes substantive harm to the child or his parents.”). Accordingly, the district court did not
abuse its discretion in holding that Dylan is entitled to compensatory education.
b. The district court did not abuse its discretion by declining
to admit the MDE’s Decision into evidence.
UCS next argues that the district court erred because it refused to permit UCS to
introduce the decision of the Michigan Department of Education dated November 10, 2016 (the
“MDE’s Decision”) with respect to the Sombergs’ complaint filed with that agency. We review
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 13
a district court’s decision to exclude evidence for abuse of discretion. Bath & Body Works, Inc.
v. Luzier Personalized Cosmetics, Inc., 76 F.3d 743, 750 (6th Cir. 1996) (holding that reversal is
warranted only “when the abuse of discretion results in more than harmless error”).
UCS asserts that if the district court had entered the MDE’s Decision into evidence, the
court “would have been compelled to conclude: there was no valid reason for the Parent to
withdraw the Student from the District in October 2015; the case was moot; and, the Parent was
not entitled to any reimbursement for the private placements in which she enrolled the Student.”
But even if we were to assume that these alleged consequences resulted from the exclusion of the
MDE’s Decision, they do not show harmful error. This appeal concerns whether the district
court erred in awarding compensatory education, not if the Sombergs had a valid reason to
withdraw Dylan from UCS. Moreover, the admission of the MDE’s Decision would not alter
our conclusion that the case is not moot. Because the district court awarded backward-looking
relief, as we described above, this evidence has no bearing on the issue of mootness. Finally, the
MDE’s decision has no bearing on the remedy here. The monetary award in this case relates
back to Dylan’s denial of a FAPE for the 2012-2013 school year and not to reimbursements for
private placements. We therefore will not disturb the district court’s evidentiary ruling regarding
the MDE’s Decision.
c. The district court did not err in considering evidence
outside of the administrative record during the bench
trial.
UCS further contends that the district court erred in permitting the Sombergs to introduce
evidence and rely on theories during the bench trial that were not presented to the ALJ.
Specifically, at the bench trial, the Sombergs argued that Dylan was denied a FAPE not only
during the 2012–2013 school year, but also during the four-year period between 2008 and 2012.
The Sombergs also presented evidence about Dylan’s level of functioning and educational
progress during school years other than the 2012–2013 school year, about the Sombergs’
contentious relationship with UCS, about UCS’s failure to provide Dylan with a “personal
curriculum,” and about various other incidents between 2008 and 2015 in which UCS allegedly
mistreated Dylan.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 14
A district court reviewing an ALJ’s decision in an IDEA case “(i) shall receive the
records of the administrative proceedings; (ii) shall hear additional evidence at the request of a
party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as
the court determines is appropriate.” 20 U.S.C § 1415(i)(2)(C). The court may consider
evidence outside of the administrative record and issues that were not presented to the ALJ if
they are relevant to the issues that were before the ALJ. Deal v. Hamilton Cty. Bd. of Educ.,
392 F.3d 840, 850–51 (6th Cir. 2004) (“There is no evidence, for example, that the district court
used the additional evidence to go beyond the scope of the matters before the ALJ; indeed, the
district court took great care to limit testimony to matters relevant to [the IEP before the ALJ].”).
When a district court looks beyond the administrative record, its decision to do so is
reviewed under the abuse-of-discretion standard. Id. at 850. “A district court could . . . be found
to have abused its discretion if it allowed additional evidence to change the character [of] the
hearing from one of review to a trial de novo.” Id. at 851 n.8 (internal quotation marks omitted).
The district court must therefore avoid “us[ing] additional evidence to rule upon issues beyond
those presented to the ALJ.” Metro. Bd. of Pub. Educ. v. Guest, 193 F.3d 457, 463 (6th Cir.
1999).
In the present case, the district court did not use the additional evidence to decide any
issue not previously presented to the ALJ. The purpose of the trial was to determine the amount
of educational loss that Dylan had suffered due to the inadequate IEP during the 2012–2013
school year, an issue inextricably linked to the ALJ’s ruling on whether Dylan was denied a
FAPE for that school year.
The district court would have been unable to discern the extent of Dylan’s educational
loss in a vacuum. Evidence of his abilities and progress in the years before and after the IDEA
violation is therefore relevant in determining whether he suffered a loss during the 2012–2013
school year. Without such testimony, for example, the court would have had no baseline against
which to measure Dylan’s progress (or lack thereof) during the year in which the violation
occurred. And without such a baseline, the court would have been unable to assess whether and
how much Dylan progressed, stalled, or regressed because of UCS’s IDEA violation. The court
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 15
therefore did not abuse its discretion in allowing witnesses to testify about matters outside of the
2012–2013 school year.
Moreover, even if the Sombergs inappropriately presented a new theory at trial
concerning Dylan’s purported educational loss over a four-year period, the district court awarded
only one year’s worth of compensatory education. (According to the Sombergs’ expert witness,
1,200 hours of private tutoring amounts to one year of instruction). An award of one year of
tutoring to compensate a student for one year of being denied a FAPE does not constitute an
abuse of discretion.
d. UCS did not raise the doctrine of avoidable consequences
before the district court, and there is no other basis for us
to review the issue.
UCS next contends that the district court erred in awarding compensatory education to
the Sombergs because Dylan’s alleged educational loss was an avoidable consequence of their
failure to accept UCS’s settlement offer. Specifically, UCS argues that if the Sombergs had
accepted the settlement offer in October 2012, then UCS would have provided Dylan a new IEP
and the Sombergs would have avoided the consequences of the deficient IEP. But UCS did not
raise this argument before the district court, thus precluding our consideration of the issue on
appeal. See J.C. Wyckoff & Assocs. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir.
1991) (“Issues not presented to the district court but raised for the first time on appeal are not
properly before the court.”).
Nor has UCS proffered any exceptional circumstances warranting review of its
avoidable-consequences argument or any reason why a failure to review the issue would result in
a miscarriage of justice. See United States v. Chesney, 86 F.3d 564, 567–68 (6th Cir. 1996)
(explaining that we may review an issue not raised below in exceptional circumstances or when
application of the rule against considering new issues on appeal would result in a miscarriage of
justice). There is, accordingly, no basis for us to review UCS’s argument that Dylan’s alleged
educational loss was an avoidable consequence of the Sombergs’ failure to accept UCS’s
settlement offer.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 16
e. The district court provided a principled basis for its award
of compensatory education.
Finally, UCS contends that we should reverse the district court’s award of 1,200 hours of
tutoring and one year of transition planning because the court provided no principled basis for
the award. Rather than using a quantitative one-for-one approach to calculate an appropriate
award of compensatory education, this court has adopted the D.C. Circuit’s qualitative approach,
which instructs courts to more flexibly calculate compensatory education in terms of placing the
student in the same position that he or she would have occupied but for the school district’s
IDEA violations. Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (citing
Reid ex rel. Reid v. D.C., 401 F.3d 516, 524 (D.C. Cir. 2005)).
In the present case, the district court’s opinion summarized the expert testimony on which
it relied before ruling on the appropriate amount of compensatory education. The Sombergs’
expert witness, for example, said that Dylan had consistently scored low on Woodcock-Johnson
tests, which measure a student’s grade level in certain subject areas, and that Dylan might have
progressed more if he had been receiving proper instruction. Even UCS’s expert witness
testified that private tutoring could fill the gap in Dylan’s education and that a single IDEA
violation could put a student “way off track” later in his or her education. Also, as UCS’s
counsel conceded at oral argument, UCS did not proffer any contrary evidence regarding the
appropriate amount of compensatory education for this case. Therefore, in light of the broad
discretion that the IDEA confers on courts to “grant such relief as [it] determines is appropriate,”
Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 369 (1985) (quoting
20 U.S.C. § 1415(e)(2)), the record supports the district court’s exercise of discretion in this case
to place the disabled child “in the same position” that he “would have occupied but for the
school district’s violations of IDEA.” See L.M., 478 F.3d at 317 (internal quotation marks
omitted).
UCS nevertheless argues that the district court improperly ordered UCS to pay for 1,200
hours of tutoring and one year of transition planning, as opposed to ordering UCS to provide
those services to Dylan. True enough, this court has interpreted Supreme Court precedent to
hold that money damages are not available to remedy violations of the IDEA. Crocker v. Tenn.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 17
Secondary Sch. Athletic Ass’n, 980 F.2d 382, 386 (6th Cir. 1992) (interpreting Sch. Comm. of
Town of Burlington. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985), as holding that the IDEA
does not authorize damages). But this court has also concluded that a court “could appropriately
award judgment for what it would now cost [a student] to obtain the educational services she
says she ought to have received earlier,” and that such an award would not constitute “damages.”
Hall v. Knott Cty. Bd. of Educ., 941 F.2d 402, 407 (6th Cir. 1991).
And as justification for ordering UCS to pay for compensatory education, rather than
ordering UCS to directly provide such education, the district court pointed to “the contentious
relationship that has developed between the parties over the course of this case’s long history.”
Such hostility is evidenced by UCS’s third-party complaint against the Sombergs’ attorney, its
counterclaim against Jeannine personally, Jeannine’s and Dylan’s testimony at trial, and the
myriad of disagreements between the Sombergs and UCS that are raised in their respective briefs
at trial and during this appeal. The court therefore did not abuse its discretion in concluding that
the most equitable solution would be to order UCS pay for Dylan’s compensatory education,
overseen by a special master, rather than force the parties to remain in their hostile relationship.
2. The Sombergs’ cross-appeal
We now turn to the Sombergs’ cross-appeal. The Sombergs argued at the bench trial that
Dylan was entitled to four years of full-time tutoring as compensatory education. They advance
two reasons in support of their argument that the district court erred in awarding Dylan only
1,200 hours of tutoring.
a. The district court did not err in failing to apply the
Endrew F. standard to its calculation of compensatory
education.
The Sombergs first contend that, in view of the Supreme Court’s decision in Endrew F.
ex rel. Joseph F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), the district
court erred in considering the fact that Dylan made “some advancement” at UCS despite being
denied a FAPE. In Endrew F., the Court rejected the argument that an IEP need be only
“reasonably calculated to provide some benefit” to the student in order to be in compliance with
the IDEA. 137 S. Ct. at 998. Instead, the Court held that an IEP must be “reasonably calculated
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 18
to enable a child to make progress appropriate in light of the child’s circumstances,” thus
rejecting the “some benefit” standard. Id. at 998, 1002.
The Sombergs suggest that the district court’s consideration of the fact that Dylan made
“some advancement” at UCS is contrary to Endrew F. But the court did not consider Dylan’s
advancement in determining whether Dylan’s IEP complied with the IDEA. Rather, it
considered that fact in determining the appropriate amount of compensatory education. The
Endrew F. standard has no application to this task because the issue in that case was whether an
IEP complied with the IDEA, not whether a student was entitled to compensatory education.
The district court therefore did not err in considering whether Dylan had made some
advancement during the year that he was denied a FAPE.
b. Even if the district court abused its discretion in allowing
UCS’s expert to testify at the bench trial, the error was
harmless.
The Sombergs’ other contention is that the district court erred in allowing UCS’s expert
witness, Dr. Laurie Lundblad, to testify at the bench trial because neither her written disclosure
nor her testimony complied with Rule 26(a)(2) of the Federal Rules of Civil Procedure. But
nothing in the court’s opinion suggests that it relied on Dr. Lundblad’s testimony in deciding to
award Dylan 1,200 hours of tutoring as opposed to four years of tutoring.
Dr. Lundblad did not suggest any specific amount or form of compensatory education. In
fact, the district court appears to have afforded more weight to the Sombergs’ expert witness, Dr.
Derrick Fries, than to Dr. Lundblad. The court, for example, discounted Dr. Lundblad’s
disagreement with Dr. Fries about how much Dylan should have progressed each year and
concluded that Dr. Lundblad’s recommendation about assistive technology was not dispositive.
In the end, Dr. Lundblad’s testimony appears to have actually helped the Sombergs because the
only testimony from Dr. Lundblad on which the court apparently relied was her testimony that
private tutoring could fill the gap in Dylan’s education and that a single IDEA violation could get
a student “way off track” later in his or her education. So even if the court abused its discretion
in allowing Dr. Lundblad to testify at the bench trial, the error appears to have been harmless.
The court therefore did not err in the amount of compensatory education awarded to Dylan.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 19
E. The district court did not abuse its discretion in awarding the Sombergs $208,807.50
in attorney fees and $1,847.15 in expenses.
We now come to the final issue on appeal—attorney fees for the prevailing party. In
IDEA proceedings, the district court has the discretion to award reasonable attorney fees to (1) “a
prevailing party who is the parent of a child with a disability,” (2) “a prevailing party who is a
State educational agency or local educational agency against the attorney of a parent who files a
complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation,”
or (3) “to a prevailing State educational agency or local educational agency against the attorney
of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was
presented for any improper purpose, such as to harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation.” 20 U.S.C. § 1415(i)(3)(B)(i). In the present case, the
court held that the Sombergs were the prevailing parties and awarded them $208,807.50 in
attorney fees and $1,847.15 in expenses. Both sides appealed the court’s order.
1. UCS’s appeal
a. The relief granted by the district court was more favorable
than UCS’s settlement offer.
UCS first argues that the Sombergs are not entitled to the amount of attorney fees
awarded because the relief that the district court granted was not more favorable than UCS’s
settlement offer. The IDEA in fact prohibits an award of attorney fees for services performed
after a school district has made a written settlement offer to a parent if, among other things, the
court “finds that the relief finally obtained by the parents is not more favorable to the parents
than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D)(i).
UCS’s offer of settlement proposed that UCS would complete a new IEP for Dylan,
would complete an assistive technology evaluation, and would evaluate whether Dylan was
entitled to compensatory education. But the district court went further by deciding that Dylan
was indeed entitled to such relief. Acceptance of UCS’s settlement offer would have provided
the Sombergs with only an evaluation of whether Dylan was entitled to compensatory education,
whereas the court’s order made this form of relief mandatory. Accordingly, the court correctly
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 20
concluded that the relief obtained by the Sombergs was more favorable than UCS’s settlement
offer.
But UCS continues to argue that the district court’s award of compensatory education
was an avoidable consequence of the Sombergs’ failure to accept UCS’s settlement offer, which
it contends should limit their right to attorney fees. As explained in Part II.D.1.d. above,
however, UCS did not raise this argument before the district court. We thus have no basis to
review the issue. And even if UCS had raised this argument before the district court, it would
fail for the same reason just stated; i.e., the settlement offer did not provide the extent of relief
that the Sombergs eventually received from the court.
b. The district court did not abuse its discretion in awarding
the Sombergs attorney fees despite the fact that they filed
a due process complaint as opposed to a Part 8 complaint.
UCS next argues that this court should reverse the district court’s award of attorney fees
because the Sombergs could have filed a state complaint under Part 8 of Michigan’s
Administrative Rules for Special Education (Part 8) instead of filing a due process complaint.
This court, however, “requires that a district court award attorney fees to a prevailing party
where no special circumstances militate against such an award.” Wikol ex rel. Wikol v.
Birmingham Pub. Sch. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004). “[T]he burden is on the
non-prevailing party to make a strong showing that ‘special circumstances warrant a denial of
fees.’” Deja Vu v. Metro. Gov’t of Nashville, 421 F.3d 417, 422 (6th Cir. 2005) (quoting
Morscott, Inc. v. City of Cleveland, 936 F.2d 271, 273 (6th Cir. 1991)).
Part 8 is an informal complaint-resolution procedure that the state of Michigan has
implemented in accordance with 34 C.F.R. §§ 300.151–300.153. The procedure is distinct from
the formal due process procedures that the IDEA requires, but it similarly allows a parent to raise
alleged IDEA violations. See Southfield Pub. Schs. v. Dep’t of Educ., No. 316856, 2014
WL 4628863, at *1 (Mich. Ct. App. Sept. 16, 2014) (per curiam). UCS contends that a Part 8
complaint would have been more cost-efficient for the Sombergs because the Michigan
Department of Education and the “intermediate school district” in which UCS is located would
have investigated the alleged IDEA violation without a hearing or attorney involvement. See
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 21
Mich. Admin. Code r. 340.1853. This argument was raised in UCS’s trial brief, but the district
court did not address the issue. In any event, the court reduced the reimbursable hours by 25%
due to “the general inefficacy in which both parties litigated this case,” including “counsel’s
apparent administrative inefficiencies.”
UCS contends, however, that the district court should have denied an award of attorney
fees altogether based on the Sombergs’ choice to file a due process complaint without first filing
a Part 8 complaint. But UCS has pointed to no provision in the IDEA conditioning an award of
attorney fees on a parent’s choice to utilize one procedural vehicle over another. Nor has UCS
pointed to any case in which a prevailing parent who exhausted administrative remedies in
accordance with the IDEA was altogether denied attorney fees for choosing to request a due
process hearing over other available, nonmandatory state administrative procedures. The court
was therefore well within its discretion in not denying the Sombergs attorney fees simply
because they requested a procedural remedy to which they were statutorily entitled.
c. Any alleged error in including the fees and costs related
to UCS’s third-party complaint against Alef in the
Sombergs’ fee award was harmless.
Finally, UCS contends that the district court erred in including in the Sombergs’ fee
award the fees and costs that Alef incurred in defending himself against UCS’s third-party
complaint. UCS’s argument is based on IDEA provisions that allow only parents and
educational agencies to recover attorney fees and costs.
We must begin our inquiry “with the language of the statute.” Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450 (2002). “The plain meaning of legislation should be conclusive, except
in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably
at odds with the intentions of its drafters.’” United States v. Ron Pair Enters., Inc., 489 U.S.
235, 242 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
According to the text of the IDEA’s fee-shifting provision, a court may award reasonable
attorney fees “to a prevailing party who is the parent of a child with a disability,” or “to a
prevailing party who is a State educational agency or local educational agency.” 20 U.S.C.
§ 1415(i)(3)(B)(i)(I)–(II) (emphases added). The text of the statute on its face, therefore, does
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 22
not entitle Alef to recover attorney fees because he is neither the parent of a disabled child nor an
educational agency. See Children’s Ctr. for Developmental Enrichment v. Machle, 612 F.3d
518, 522 (6th Cir. 2010) (holding that a private school was not entitled to attorney fees because
“we need not look further than the language of the statute itself”).
The district court recognized that allowing Alef to recover attorney fees would contradict
the plain text of the IDEA and that this court had applied a textual approach in interpreting the
IDEA’s fee-shifting provision in Children’s Center for Developmental Enrichment, 612 F.3d at
522. But the court held that Alef’s attorney fees and costs should be included in the Sombergs’
fee award because to hold otherwise “would appear to frustrate the purpose of the fee-shifting
provision of the IDEA.” The court then consolidated the IDEA case against UCS with the
previously severed case against Alef for the purpose of determining the fee award.
But we need not decide whether this case is one of those “rare cases [in which] the literal
application of a statute will produce a result demonstrably at odds with the intentions of its
drafters,” see Griffin, 458 U.S. at 571, because, as the Sombergs argue, the counterclaim that
UCS filed against Jeannine was nearly identical to the claims in the third-party complaint against
Alef. The costs of defending the counterclaim and the third-party complaint were therefore
virtually indistinguishable. Before the district court, the Sombergs claimed that Alef expended a
total of 1,265.5 hours on this case, including 54.74 hours on the separate action against himself.
The record indicates, however, that Alef came to the 54.74 hours by simply splitting the time
spent defending the counterclaim against Jeannine in half. Because this suggests that Alef did
not actually incur any significant fees in defending himself pro se against the third-party
complaint that can be attributed solely to that action, any alleged error by the district court was
harmless. The court’s 25% discount of the hours awarded further mitigates against UCS’s claim
of an excessive award based on its third-party complaint against Alef.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 23
2. The Sombergs’ challenge to the award of attorney fees
We now turn to the Sombergs’ cross-appeal on this issue. They contend that the district
court abused its discretion by reducing Alef’s billing rate from $250 to $220 per hour and in
reducing the number of hours awarded by 25%.
a. Subparagraph 1415(i)(3)(G) does not preclude a
reduction of attorney fees in the district court’s discretion.
The Sombergs contend that the text of the IDEA prohibits the district court from reducing
their fee award in any manner because of its finding that UCS unreasonably protracted the
proceedings. But given that they too were found to have protracted the proceedings, the
Sombergs’ argument appears at first glance to be contrary to the IDEA’s fee-shifting provision
that requires a district court to reduce an award of attorney fees when the court finds that:
(i) the parent, or the parent’s attorney, . . . unreasonably protracted the final
resolution of the controversy;
(ii) the amount of the attorneys’ fees otherwise authorized to be awarded
unreasonably exceeds the hourly rate prevailing in the community for similar
services by attorneys of reasonably comparable skill, reputation, and
experience;
(iii) the time spent and legal services furnished were excessive considering the
nature of the action or proceeding; or
(iv) the attorney representing the parent did not provide to the local educational
agency the appropriate information in the notice of the complaint described
in subsection (b)(7)(A) . . . .
20 U.S.C. § 1415(i)(3)(F) (subparagraph (F)).
But subparagraph 1415(i)(3)(G) (subparagraph (G)) states that “[t]he provisions of
subparagraph (F) shall not apply in any action or proceeding if the court finds that the State or
local educational agency unreasonably protracted the final resolution of the action or
proceeding.” The text of subparagraph (G) thus appears to prohibit a court from reducing a fee
award in accordance with subparagraph (F) when the court finds that the school district
unreasonably protracted resolution of the proceedings.
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 24
In its opinion concerning attorney fees, the district court in fact determined that UCS had
unreasonably protracted the proceedings in this case. The court went on to conclude, however,
that
[n]o doubt exists that [UCS] unreasonably protracted the proceedings in this case,
. . . [but] the mere fact that Utica unreasonably protracted the proceedings does
not by itself prevent this court from adjusting downwards the fees and costs
requested after considering their reasonableness, especially where some evidence
suggests that the Sombergs may have protracted [the] proceedings as well.
UCS argues that the net effect of subparagraphs (F) and (G), when both are found applicable, is
to restore the court’s normal discretion to set reasonable attorney fees.
In Williams by & through Williams v. Fulton County School District, 717 F. App’x 913,
917 (11th Cir. 2017), the Eleventh Circuit agreed with the position that UCS advances here. The
Williams court concluded that if a district court determines that a school district unreasonably
protracted the litigation, thus triggering the exception in subparagraph (G), the court “errs if it
acts as though it is required to reduce the award under (F)” but does not err if “[i]ts reductions to
the award were due to reasonableness, not because . . . (F) required it to reduce the award.” Id.
(emphasis added).
We agree with the Eleventh Circuit’s analysis in Williams. First, as a matter of statutory
construction, 20 U.S.C. § 1415(i)(3)(B)(i) (subparagraph (B))—the provision enumerating the
circumstances that warrant an award of attorney fees—specifically says that, in those
circumstances, the court may award reasonable attorney fees in its discretion. If a court
determines, therefore, that fees are warranted under subparagraph (B), then it may award only
reasonable fees. One way for a court to ensure that fees are reasonable is to reduce the
suggested award if the amount requested is found to be unreasonable. Subparagraph (G), when
found applicable, does not mandate that the district court abandon its discretion to ensure that
fees are reasonable. Such a reading of subparagraph (G) would be inconsistent with
subparagraph (B)’s instruction that only reasonable fees should be awarded in the court’s
discretion.
Moreover, this court interprets the fee-shifting provision of the IDEA in the same way
that it interprets the fee-shifting provision of 42 U.S.C. § 1988, the attorney fees provision for
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 25
civil rights actions. See Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993) (“We have interpreted
[the fee-shifting provision of the IDEA] by analogy to 42 U.S.C. § 1988 . . . .”). In determining
what amount of attorney fees is reasonable when § 1988 applies, the Supreme Court has held that
a court should begin with the “lodestar” value, which is “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). The district court should “exclude from this initial fee calculation
hours that were not reasonably expended.” Id. at 434 (internal quotation marks omitted). But a
court would be unable to apply the Hensley framework to the fee shifting provision of the IDEA
if it were prohibited from reducing a fee award due to the application of subparagraph (G). The
Sombergs’ interpretation of subparagraph (G) is therefore contrary to how this court has
construed the IDEA’s fee-shifting provision “by analogy to 42 U.S.C. § 1988.” See Phelan,
8 F.3d at 373. In sum, the district court correctly concluded that its finding that UCS
unreasonably protracted the resolution of this litigation did not prohibit it from reducing the
Sombergs’ fee award to ensure that the overall award was reasonable.
b. The district court did not abuse its discretion in reducing
the Sombergs’ fee award.
When a district court provides “a clear and concise explanation of its reasons for the
[attorney fees] award,” we afford the district court’s calculation of the lodestar value and any
justifiable departure substantial deference. Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616
(6th Cir. 2007) (quoting Hensley, 461 U.S. at 438). In the present case, the district court
provided a clear and concise explanation of its reasons for reducing Alef’s hourly rate to $220.
First, UCS’s counsel is experienced in litigating IDEA cases and charged an hourly rate between
$200 and $220. Second, Alef is a solo practitioner, and solo practitioners in Michigan bill at a
median hourly rate between $200 and $225.
The district court also provided a clear and concise explanation for reducing the number
of hours to be reimbursed by 25%; i.e., that both parties were generally found to be inefficient in
litigating the case. Moreover, the court explained that the number of hours that Alef billed struck
the court as excessive because the facts “were relatively straightforward and undisputed.” The
Nos.17-2195 / 2196 / 2197 / 2313 Somberg v. Utica Cmty. Sch., et al. Page 26
district court therefore did not abuse its discretion in reducing Alef’s hourly rate and the number
of hours to be reimbursed in determining a reasonable fee award.
III. CONCLUSION
For the various reasons set forth above, we AFFIRM all aspects of the district court’s
judgment in this case.