though it found that the parents were prevailing parties because the plaintiffs' success was only technical. 102 F.2d at 908. The court reasoned that while the plaintiffs achieved a better program for their son in the school district with more personal attention to his specific needs, these successes were de minimis in light of the plaintiffs' broader assertion that a particular school was the least restrictive environment for their son, an assertion denied by the administrative hearing officer. Id.
Similarly, in this case the only role the defendant was required to fill with respect to the D.O.R.S. services was to set up a meeting and have a representative attend. The school district had no obligation to participate in the D.O.R.S. meeting or to provide transition services of any kind to Anthony. Additionally, while the hearing officer ordered the school district to graduate Anthony, it did not order the defendant to graduate Anthony only under the conditions requested by plaintiffs. Rather, the hearing officer gave the defendant four different conditions by which to graduate Anthony: (1) when he received D.O.R.S. services, or (2) when he was denied D.O.R.S. services, or (3) when Anthony requested to be graduated, or (4) on March 1, 1996.
Furthermore, graduation was not a significant legal issue upon which plaintiffs prevailed because the school district offered to grant this relief as a matter of course once it became aware Anthony had completed all of his requirements. In fact, the school district was willing to graduate Anthony as soon as it became aware of his eligibility, but it was plaintiffs who objected to such action by the defendant until after the administrative hearing was convened. (Pl. Resp. to 12(N) Addt'l Facts P 25). Further, requiring defendant to set up and attend a meeting and to graduate Anthony is less significant of a benefit than that achieved by petitioners in Farrar. Indeed, in Farrar, the petitioners, who were denied recovery of any attorneys' fees by the Supreme Court, at least prevailed on the merits of their underlying claim that their constitutional rights had been denied. See 506 U.S. at 114, 113 S. Ct. at 573. By contrast, in this case plaintiffs did not succeed on any of their claims of statutory violations. Moreover, even if plaintiffs could be found to have prevailed on the issue of a D.O.R.S. meeting or graduation, plaintiffs did not succeed on a significant issue because defendant's never objected to graduating Anthony and because defendant's involvement in a D.O.R.S. meeting was not necessary to plaintiffs' obtaining transition services.
Additionally, plaintiffs did not receive any relief equivalent to the relief obtained by the plaintiffs in Monticello School District No. 25. In Monticello School District No. 25, the Seventh Circuit denied attorneys' fees despite the hearing officer's order that the school district had to develop an IEP for the student and take other specific actions, including in-service training of all of the student's teachers on the effects of attention deficit disorder in general and of the student's attention deficit disorder needs in particular. 102 F.2d at 900. By contrast, the school district in this case has no obligation to provide Anthony with any IEP, services, training or otherwise. As a result, the Court finds that plaintiffs did not prevail on a significant issue.
Finally, plaintiffs are not entitled to attorneys' fees because any success they achieved did not "accomplish some public goal other than occupying the time and energy of counsel, court, and client." Farrar, 506 U.S. at 121-22, 113 S. Ct. at 578 (O'Connor, J., concurring). In this case, plaintiffs did not allow the school district sufficient time to respond to their request before filing for an impartial administrative hearing. "While plaintiffs are free to resort to administrative action under the provisions of IDEA, they cannot expect to recover fees and costs when their efforts contributed nothing to the final resolution of a problem which could have been achieved without resort to the administrative process." Patricia E, 894 F. Supp. at 1166; see also Combs v. School Bd. of Rockingham County, 15 F.3d 357, 364 (4th Cir. 1994). Contrary to plaintiffs' counsel's argument that the "Plaintiff could have just filed the hearing request without first offering the District a chance to work the matter out amicably," (Plaintiffs' Response to Defendant's 12(M) P 5), "before a lawsuit is commenced, a school district should be put on notice of disagreements and given an opportunity to make a voluntary decision to change or alter" the services being given to the child. Johnson, 949 F.2d 1000, 1004 (8th Cir. 1991). In this case, plaintiffs did not give defendant such an opportunity.
The undisputed facts show that the first time plaintiffs expressed their concerns and requests to defendant was in their August 7, 1995 letter written by their attorney. (Plaintiffs' Response to Defendant's 12(N) Statement of Additional Facts P 9). From the very beginning, plaintiffs involved an attorney in the process in obtaining voluntary services for their son; they never requested that defendant evaluate Anthony prior to the August 7, 1995 attorney letter, and they never attempted to deal directly with defendant. Additionally, regardless of whether plaintiffs letter was clear to defendant, plaintiffs gave the school district only 5 business days to investigate the matter and respond "favorably" to their letter before pursuing administrative remedies. Although the school district wrote the plaintiffs' attorney on August 18, 1995, only 9 business days after plaintiffs' attorney drafted their initial letter, plaintiffs had already filed a request for an administrative hearing. Undoubtedly, plaintiffs did not give the school district sufficient time to respond to their requests before they pursued administrative remedies. Accordingly, it would be inappropriate for them to recover attorneys' fees.
Finally, pursuant to Section 1415(e)(4)(B), the award of attorneys' fees under IDEA is discretionary. In this case, the Court finds that several facts warrant a denial of plaintiffs' petition. Although Anthony was ultimately found to have a learning disability and may have benefitted from special education services throughout all of high school, defendant was not found to have committed any statutory violations in its treatment of Anthony. The undisputed material facts show that plaintiffs hired an attorney before ever attempting to deal with the school district on their own. Moreover, they allowed the school district less than one week to respond to their demands before filing a request for an administrative hearing. While plaintiffs received a meeting with D.O.R.S. and Anthony received transition services as a result of the administrative hearing, plaintiffs did not give the school district sufficient opportunity to remedy the situation before seeking an administrative proceeding. To allow the award of attorneys' fees and costs "in a case where a party pursued administrative remedies before the school district had sufficient opportunity to remedy the situation 'would encourage potential litigants and their attorneys to pursue legal claims prior to attempting a simpler resolution and would discourage the school from taking any favorable change in a child's IEP, once an administrative proceeding or lawsuit was underway for fear that any action on its part would give rise to a claim by the plaintiff that he prevailed and that attorneys' fees are in order.'" Id. at n.8 (citing Combs, 15 F.3d at 364 (4th Cir. 1994)). Accordingly, even if plaintiffs could be found to be a "prevailing party" on the issue of D.O.R.S. services or graduation for Anthony, the Court declines to exercise its discretion to grant plaintiffs' petition for attorneys' fees and costs.
WHEREFORE, for the foregoing reasons, defendant's motion for summary judgment is granted and plaintiffs' motion for summary judgment is denied.
David H. Coar
U.S. District Court
Dated: MAR 24 1997