B.D. Ex Rel. Davis v. District of Columbia ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
) ..
B.D., a minor, by and through his ) F I L E
Parents and next friends, Anne and ) 7
Brantley Davis, et al., ) DEC 0 3 2W1
) Clerk U S Distrl t
. . , ~ - 8: B k t
Plaintiffs, ) Courts for the Disirict ofgorliii’ngia
)
v. ) Civil Case No. 12—0934 (RJL)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUIZI OPINION
(Decembefi 2014) [Dkt. ##38, 41]
Plaintiffs Anne and Brantley Davis—as parents and next friends of their son,
B.D.—-(together “p1aintiffs”) commenced this action against the District of Columbia
(“defendant” or “the District”) pursuant to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq, on June 7, 2012, seeking review and enforcement of
an administrative due process hearing officer determination (“HOD”), as well as related
attorney’s fees and costs. See Compl. [Dkt. #1].1 Now before the Court are the parties’
cross—motions for summary judgment. See Pls.’ Mot. Summ. J. [Dkt. #3 8]; Def.’s Cross-
Mot. Summ. J. [Dkt. #41]. Upon consideration of the parties’ pleadings, relevant law,
and the entire record in this case, the Court GRANTS, in part, and DENIES, in part,
‘ Plaintiffs filed a Second Amended Complaint—with leave of the Court—on September 23,
2013. See Fed. R. Civ. P. 15(a)(2); see also Second Amended Complaint (“Am Compl.”) [Dkt.
#29].
plaintiffs’ Motion for Summary Judgment, and GRANTS, in part, and DENIES, in part,
defendant’s Cross-Motion for Summary Judgment.
BACKGROUND
B.D. is a disabled student entitled to special education under the IDEA. B.D.”s
disabilities include specific learning disabilities, attention deficit hyperactivity disorder,
various physical health problems, gross and fine motor coordination issues, behavioral
problems, sensory dysregulation and inadequate social skills. See Plaintiffs’ Statement of
Material Facts as to Which No Genuine Issue Exists (“Pls.’ Facts”) 1111 2, 5 [Dkt. #3 8-1];
Def.’s Mot. Summ. J. at 4-5. B.D. attended the Kingsbury Day School (“Kingsbury”)
from 2007-2009. See id. 1111 3, 6. On June 9, 2009, however, a new individualized
education plan (“IEP”) was developed for B.D., and it was determined that Kingsbury
could no longer meet B.D.’s special education needs in accordance with the updated IEP.
See id. 11 7; Administrative Record (“AR”) at 560 [Dkt. ##31-33]. From October 21,
2009 until August 29, 2011, B.D. received in-home instruction and therapy provided
through District of Columbia Public Schools (“DCPS”). See Pls.’ Facts 11 10.
At the beginning of the 201 1 school-year, B.D. attended the Katherine Thomas
School (“KTS”) for a 30-day trial, which ended unsuccessfully in October, 2011. See id.
W 12, 13; AR at 183. On October 11, 2011, DCPS held an IEP meeting and developed a
new IEP requiring that B.D. receive 26.6 hours per week of specialized instruction, two
hours per week of speech-language therapy, three hours per week of occupational
therapy, and two hours per week of behavioral support services. See AR at 294. The IEP
team recommended B.D.’s placement at The Children’s Guild——a private, full-time
2
School acceptance letter) [Dkt. #41-3]. Thus, because plaintiffs’ requested relief has
already occurred, Count 111 of the Second Amended Complaint is moot.
IV. Attorney’s Fees
In Count IV, plaintiffs seek $51,203 in attorney’s fees and $183.05 in related
expenses as prevailing parties in administrative due process Case No. 2012-0020. See
Am. Compl. 11 77; Pls.’ Mot. Summ. J. at 22. Under the IDEA, “the court, in its
discretion, may award reasonable attorney’s fees.” 20 U.S.C. § 1415(i)(3)(B)(i). The
District concedes that plaintiffs were prevailing parties in Case No. 2012-0020; however
they contend that plaintiffs are not entitled to all of the fees they are seeking. See Def.’s
Cross—Mot. Summ. J. at 26. Specifically, defendant argues that plaintiffs’ attomey’s rate
of $390 an hour is unreasonable, and that she should only receive fees at a rate of
$3 82.50 per hour.6 See id. The District arrived at this figure by citing to a recent
Memorandum Opinion in a case7 before Judge Friedman, in which plaintiffs’ attorney
was awarded fees at three—quarters of the rate established by the Lafléy matrionr
$3 82.50—due to the “simplicity” of the case.8
Judgment, BB. 11, Civ. No. 13—01223—RJL (D.D.C.), ECF No. 18; Motion for Order to Show
Cause Why Defendant Should Not Be Held in Contempt of the Court’s November 19, 2013
Preliminary Injunction, ED. 11, Civ. No. 13-01223-RJL (D.D.C.), ECF No. 23.
6 Defendant does not challenge the hourly rates charge by Attorney Savit’s colleagues, Ms.
Becker and Ms. Smith, “because of their minimal involvement in Plaintiffs’ case.” See Def.’s
Cross-Mot. Summ. J. at 26.
7 Blackman v. District of Columbia, Civ. No. 97—1629, Memorandum Opinion and Order (PLF)
(D.D.C. June 27, 2014) [Dkt. #2472].
8 Judge Friedman described plaintiffs’ claim in Blackmcm as being “presented and resolved in a
relatively informal setting before the Special Master, and plaintiffs have not shown that the case
involved complicated legal or evidentiary issues.” Blackman, Civ. No. 97—1629, at 2.
ll
The District argues that this is the appropriate rate at which plaintiffs’ counsel
should be compensated in this case. The lower rate would result in an award of
$50,405.80 in attorney’s fees. The difference in the fee calculation between the two rates
is only $797.20. It should be noted, however, that the relevant Laffey rate used to arrive
at the hourly rate of $382.50 in the case before Judge Friedman was $505 per hour, which
is substantially higher than the $3 90 per hour claimed by plaintiffs’ counsel here.
Plaintiffs argue that not only is a rate of $390 per hour reasonable, see Bucher v.
District ofColumbia, 777 F. Supp. 2d 69, 73 (GK) (D.D.C. 2011) (noting plaintiff bears
the burden of showing that hourly rate and number of hours spent on tasks are
reasonable), but also that the District conceded the appropriateness of the rate by
previously paying plaintiffs’ counsel at that rate for administrative-level work in this
case. See, e.g., F.S. v. District of Columbia, Civ. No. 10-01203 (EGS) (AK), Minute
Order (D.D.C. March 25, 2013) (noting prior payment of fees at requested rates indicates
agreement as to appropriateness of rates). Even assuming, arguendo, that defendant has
not conceded the appropriateness of plaintiffs’ counsel’s rate, I find that the rate of $390
per hour is reasonable under the circumstances. How so?
To demonstrate that an hourly rate is reasonable, plaintiffs “must submit evidence
on at least three fronts: the attorneys’ billing practices; the attorneys’ skill, experience,
and reputation; and the prevailing market rates in the relevant community.” Jackson v.
District of Columbia, 696 F. Supp. 2d 97, 101 (RMU) (D.D.C. 2010) (internal quotation
marks and citation omitted). Plaintiffs may show that the number of hours spent on a
task was reasonable by “submitting an invoice that is sufficiently detailed to permit the
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District Court to make an independent determination whether or not the hours claimed
are justified.” 10'. (internal quotation marks and citation omitted). Plaintiffs here have
pled sufficient facts and attached sufficient documentation to support a finding of
reasonableness for a rate of $390 per hour. See Pls.’ Facts M 164-179 (discussing
plaintiffs’ counsel’s billing practices, skill, experience, reputation, and the prevailing
market rates in the relevant community); Pls.’ Mot. Summ. J., Ex. J8 (billing invoices
detailing plaintiffs’ attorneys’ work on this matter, including numerous instances of
counsel not charging plaintiffs for work performed) [Dkt. #3 8—5 1]. Based on the above, I
find that plaintiffs’ counsel’s rate of $390 per hour is reasonable under the circumstances,
and therefore grant summary judgment in favor of plaintiffs on Count IV.
CONCLUSION
Accordingly, for all the foregoing reasons, the Court GRANTS summary
judgment in favor of defendant on Counts I, II, and III of the Second Amended
Complaint, and GRANTS summary judgment in favor of plaintiffs on Count IV of the
Second Amended Complaint. An Order consistent with this decision accompanies this
Memorandum Opinion.
RICHARD .
United States District Judge
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special education school in Maryland. See Pls.’ Facts 1111 26, 30. The Davises rejected
this offer and continued to provide in-home tutoring and occupational therapy at their
own expense. See Pls.’ Facts W 30, 61-64.
Following evaluations on October 6-10, 2011, Gladys M. Sweeney——a licensed
psychologist hired by plaintiffs—completed a psychological assessment of ED. and
recommended evaluating and treating B.D. at a therapeutic in—patient treatment facility.
See AR 278-79. At an IEP meeting held on November 29, 2011, DCPS agreed to refer
8D. to the Department of Mental Health (“DMH”) Psychiatric Residential Treatment
Facility (“PRTF”) for assessments. See AR at 490-92.
On January 9, 2012 plaintiffs filed a due process complaint seeking relief for
DCPS’s alleged failure to provide B.D. with a free appropriate public education
(“FAPE”), and challenging its suggested placement of ED. at The Children’s Guild as
inappropriate. See Pls.’ Facts 11 82; AR 409-414. The hearing officer issued his HOD on
March 9, 2012, finding that B.D. was denied a FAPE from August — October 2011,
because DCPS had not provided an appropriate IEP, nor an appropriate educational
setting. See AR at 28. Moreover, the hearing officer found that B.D. was also denied a
FAPE from October 201 1 to 2012, because the IEP in place was outdated, it did not rely
on sufficient baseline or evaluative data, and because the proposed school would employ
behavioral tactics similar to those determined to be ineffective at B.D.’s previous school.
See AR at 31.
The HOD ordered defendant to reimburse plaintiffs for all educational services
provided by their Occupational Therapist and Tutor from October 11, 2011 “through the
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present,” and to provide B.D. with occupational therapy for five hours a week for three
months. See AR at 39. The HOD further ordered defendant to immediately reconvene
B.D.’s IEP team to determine which assessments were appropriate, and that such
assessments were to be completed within sixty days of the issuance of the HOD. See id.
The IEP team was ordered to convene within ten days of the assessments” completion.
See id.
DMH’s PRTF review committee reviewed B.D. pursuant to DCPS’s March 2012
referral, and determined that B.D. required placement in residential treatment facility.
See Pls.’ F acts fl 105. Plaintiffs independently sought and obtained B.D.’s acceptance at
Wediko Children’s Center, an in-patient facility in New Hampshire that could
accommodate B.D.’s psychological and education needs. See id. at W 112-13. Due to
B.D.’s continued behavioral deterioration, however, Wediko withdrew its acceptance.
See id. ‘fl 1 15. After determining that no public school program could meet B.D.’s needs,
the Office of the State Superintendent of Education (“OS SE”) began searching for a
residential treatment facility. See id. ll 158. Three residential treatment facilities
expressed interest in ED. See id. 1] 159. Defendant contends that one of the residential
treatment facilities—the Eagleton School in Massachusetts (“Eagleton”)—is appropriate
for B.D., can implement his IEP, and has offered acceptance to B.D. See Def.’s Cross-
Mot. Summ. J. at 25; id, Ex. 3 (April 4, 2014 Eagleton School acceptance letter).
Plaintiffs, however, contest Eagleton’s appropriateness for 8D. in a related case. See
B.D. v. District ofCOZumbia, Civ. No. 13-01223-RJL (D.D.C. filed Aug. 8, 2013) (“RD
11”).
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate
when the evidence in the record demonstrates 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); see, e. g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When evaluating
cross motions for summary judgment, “the court shall grant summary judgment only if
one of the moving parties is entitled to judgment as a matter of law upon material facts
that are not genuinely disputed.” Select Specialty Hosp. — Bloomington, Inc. v. Sebelius,
774 F. Supp. 2d 332, 338 (D.D.C. 2011) (citation omitted). The court must accept as true
the evidence of, and draw “all justifiable inferences” in favor of the party opposing
summaryjudgment. Anderson v. Liberty Lobby, Inc, 477 US. 242, 255 (1986). A
genuine issue exists only where “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id. at 248.
ANALYSIS
The relief sought by plaintiffs in this action is three—fold. They seek judicial
review of portions of the March 9, 2012 HOD; they ask this Court to enforce defendant’s
compliance with the HOD, including an injunction ordering DCPS to identify an
appropriate in-patient therapeutic treatment facility for B.D.; and they seek attorney’s
fees and costs as prevailing parties in their due process hearing. As discussed more fully
below, I find that summary judgment in favor of the District is appropriate on Counts I, II
and III of the Second Amended Complaint, and summary judgment in favor of plaintiffs
is appropriate on Count IV.
1. Review of March 9, 2012 HOD
Plaintiffs seek judicial review of the March 9, 2012 HOD, insofar as the hearing
officer failed to “properly address B.D.’s need for compensatory services, or to direct
DCPS as to the specific services B.D. was to receive during the assessment and IEP
development period.” Am. Compl. 1i 62.
Judicial review of a hearing officer’s determination is based on a preponderance of
the evidence, while granting some level of deference to the hearing officer’s decision.
See Lyons v. Smith, 829 F. Supp. 414, 417 (S SH) (D.D.C. 1993) (noting that reviewing
courts must “give ‘due weight’ to the administrative proceedings and afford some
deference to the expertise of the hearing officer and school officials responsible for the
child’s education”). Courts should not “reverse the hearing officer’s findings simply
because [the court] disagree[s] with them.” Bd. of Educ. of Arlington Heights Sch. Dist.
N0. 25 v. 11!. State Bd. ofEduc., 2001 US. Dist. LEXIS 6994, at 12 (ND. 111. March 19,
2001). Moreover, the party challenging the hearing officer’s decision bears the burden of
proving that the hearing officer decided against a preponderance of the evidence.
Angevine v. Smith, 959 F.2d 292, 295 (DC. Cir. 1992); Kerkam v. McKenzie, 862 F.2d
884, 887 (DC. Cir. 1988); see also SH. v. State—Operated Sch. Dist. 0fthe City of
Newark, 336 F.3d 260, 270 (3d Cir. 2003) (reviewing court is “required to defer to the
ALJ’s factual findings unless it can point to contrary nontestimonial [sic] extrinsic
evidence on the record”). Plaintiffs here have made no such showing.
Plaintiffs allege that the hearing officer erred by failing to appropriately address
B.D.’s entitlement to compensatory education, refusing to order the full diagnostic
6
program recommended for him in the 2011 psychological and psychiatric reports, and
failing to adequately identify the services B.D. was to receive until a proper IEP was
developed. See Compl. W 60-63. I disagree. The hearing officer dedicated
approximately six pages of the HOD to a discussion of his reasoning for directing the
amount of compensatory education he ordered. See AR at 32-38. He specifically
discussed the types of occupational therapy being provided to B.D., and found that five
hours per week of such therapy was the appropriate amount. See AR at 33. Finding that
B.D. was not provided these services after October 11, 2011, the hearing officer awarded
him five hours a week of occupational therapy for three months as compensatory
services. See AR at 34.
The hearing officer then discussed plaintiffs’ requested remedy of B.D.’s
placement at the Meridell Achievement Center (a residential treatment center). See AR at
34-37. The hearing officer specifically addressed how Meridell was not only not
appropriate for B.D., but is also considered “akin to hospital services that are specifically
excluded from the IDEA.” AR at 36. Finally, the hearing officer agreed with plaintiffs
that further assessment of ED. was needed, and ordered the defendant to reconvene the
IEP team to determine what specific assessments were necessary. See AR at 37. The
hearing officer also ordered 1:1 home instruction for two hours per day, five days a week.
See AR at 38. Based on the above, the Court cannot conclude that the hearing officer
decided this case against a preponderance of the evidence.
II. Enforcement of March 9, 2012 HOD
In Count II, plaintiffs seek an order “directing the District to fully comply with all
portions of the HOD that imposed obligations on DCPS.”2 Am. Comp]. ll 66. However,
while the IDEA creates a right of action for a party to challenge an adverse decision of an
impartial hearing officer, it does not create a cause of action to challenge the
implementation of a favorable HOD. Following a due process hearing, “[a]ny party
aggrieved by the findings and decisions made [in an HOD] shall have the right to bring a
civil action.” 20 U.S.C. § 1415 (i)(2)(A) (emphasis added). Plaintiffs can hardly be said
to be “aggrieved” by the hearing officer’s decision when it awarded them precisely the
relief they sought (at least with regards to the services being sought in Count II of the
Complaint).
Moreover, “[a] complaint alleging a public agency’s failure to implement a due
process hearing decision must be resolved by the [state education agency].” 34 C.F.R.
§ 300.152(c)(3) (emphasis added). In Washington, DC, the state education agency is
the Office of the State Superintendent of Education. In its policy and procedures manual,
OSSE makes clear that “[a] complaint alleging that a public agency . . . has failed to
implement a special education due process hearing officer decision resolving a due
process hearing request will be reviewed and resolved by the [State Complaint Office].”
District of Columbia Formal State Complaint Policy & Procedures at 3, available at
2 Plaintiffs allege that defendant has failed to reimburse them for the cost of B.D.’s tutor and
occupational therapist as ordered by the hearing officer. See Am. Compl. fl 65; Pls.’ Facts 1] 154.
Curiously, however, on July 26, 2012, plaintiffs filed a stipulation in this case, stating that
“[p]ayments to B.D.’s tutor and occupational therapist for their direct services to B.D., that were
billed directly to DCPS, are now current.” See Stipulation 1i 6 (July 26, 2012) [Dkt #18].
8
http://ossc.dc.gov/publications/specialized-education-state-complainttpolicmnd-
procedure. As there is no cause of action under the IDEA to enforce a favorable decision
from an administrative due process hearing, and the plaintiffs are not “aggrieved” as
contemplated by the IDEA in authorizing judicial review of adverse due process hearing
officer determinations, Count II is not properly before this Court. See Robinson v.
Pinderhughes, 810 F.2d 1270, 1273-75 (4th Cir. 1987) (“The plaintiffs here are not
parties aggrieved. Thus, the statute does not provide for their access to either the state or
federal courts”); S. G. v. District of Columbia, 498 F. Supp. 2d 304, 311 (RMC) (D.D.C.
2007) (dismissing count seeking enforcement of HOD because plaintiffs had not
exhausted their administrative remedies leaving the court without jurisdiction).3
In the Education of the Handicapped Act [EHA]—the predecessor statute to the
IDEA—the Supreme Court made clear that “judicial review is normally not available
under [the EHA] until all administrative proceedings are completed, but as we have
previously noted, parents may bypass the administrative process where exhaustion would
be futile or inadequate.” Honing v. Doe, 484 US. 305, 326-27 (1988); see also Cox v.
Jenkins, 878 F.2d 414, 419 (DC. Cir. 1989); Porter, 307 F.3d at 1069. Plaintiffs argue
that they are excused from having to raise their complaints at the administrative level
because such a challenge would be futile. See Pls.’ Reply at 19 [Dkt. #45]. Plaintiffs”
futility argument as to Count II, however, is completely undermined by the fact that
3 But see Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 115-16 (lst Cir. 2003) (allowing
plaintiffs to seek enforcement of favorable HOD); Porter v. Bd. of Trustees of Manhattan Beach
Unified Sch. Dist, 307 F.3d 1064, 1071 (9th Cir. 2002) (not requiring plaintiffs to exhaust
administrative remedies before bringing action to enforce favorable IIOD).
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defendant has largely complied with all of the HOD directives that the plaintiffs seek to
enforce. Accordingly, Count II is not properly before this Court and defendant is entitled
to judgment as a matter of law.
111. Injunction
In Count III, plaintiffs seek “an injunction ordering the District, under the auspices
of either DCPS or DMH, or both, as appropriate, to find an appropriate therapeutic
residential placement for B.D. and to work with that facility to develop appropriate
educational and treatment programs for him without further delay.” See Am. Comp].
1] 74. Due to events subsequent to the filing of the complaint in this case, these claims are
now moot. B.D. has an updated and appropriate IEP that was completed in October
2012, recommending that he be educated in a therapeutic residential facility.4 See Dcf.’s
Cross-Mot. Summ. J ., Ex. 1 (Oct. 2013 IEP) [Dkt. #41-1]. Moreover, the District has
located an appropriate therapeutic residential treatment facility that has accepted B.D.
and is capable of implementing his current IEP.5 See id, Ex. 3 (April 4, 2014 Eagleton
4 Plaintiffs challenged this IEP in a due process complaint filed on April 8, 2013 (Case No. 2013-
0211). See Amended Complaint, 11 63, B.D. II, Civ. No. 13-01223-RJL (D.D.C. 2013), ECF No.
6. Plaintiffs are challenging the resulting HOD that addressed this due process hearing in Counts
III and V ofB.D. I], Civ. No. 13—01223-RJL (D.D.C. 2013). See id. 1111 82-85.
5 The appropriateness of the residential therapeutic treatment facility identified by DCPS, the
Eagleton School, is being litigated in B.D. II, Civ. No. l3—01223-RJL (D.D.C. 2013). This Court
granted a preliminary injunction in that case pursuant to the “stay put” provision of the IDEA on
November 19, 2013, finding that B.D.’s current educational placement was 1:1 home instruction.
See 11/19/2013 Order, B.D. II, Civ. No. 13-01223-RJL (D.D.C.), ECF No. 16. Because home
instruction was not possible, I ordered 1:1 instruction at Lindamood-Bell. See id. at 3. The
ability of Lindamood-Bell to work with B.D. quickly broke down due to his violent outbursts
and the inability of the staff to control his behavior. See Motion for Relief From Judgment, Ex.
1, B. D. II, Civ. No. 13—01223—RJL (D.D.C.), ECF No. 18—1 (correspondence from Lindamood-
Bell regarding inability to continue working with B.D.). Accordingly, in B.D. II, the issue of
B.D.’s current educational placement continues to be litigated. See Motion for Relief From
10