The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Michael Koswenda through his parents ("Plaintiffs") initiated this
federal action to recover attorney's fees and costs under
20 U.S.C. § 1415(i)(3)(B) as a prevailing party arising out of an
administrative proceeding brought against Flossmoor School District No.
161 ("District" or "Defendant") under the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C.A. § 1400 et seq. This case is
currently before the court for decision as a trial on the papers. Oral
argument was held on October 17, 2002. The parties present the issue of
whether Plaintiffs are entitled to recover some or all of their
attorney's fees and costs incurred in the administrative hearing. This
cases raises the following issues for decision: 1) whether Plaintiffs
were prevailing parties pursuant to 20 U.S.C. § 1415(i)(3)(B); 2)
whether the Plaintiffs' success is purely technical or de minimis; and 3)
what constitutes a reasonable fee for the results achieved. The following
constitute the Court's findings of fact and conclusions of law in
accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
Michael Koswenda is a thirteen year-old boy who experiences problems in
school and is eligible for services under the IDEA Complaint ¶ 3, 4.
Through the spring of 1999, Michael attended the Rush Day School when his
mother, Theresa Koswenda, requested a transfer to Acacia. D&O at 20.*fn1
An individual education plan ("IEP") was completed in June of 1999, and
Michael transferred to Acacia on a conditional basis that summer. Id. The
school determined almost immediately that Michael could not stay, but
agreed to allow him to attend for the duration of the summer. Id.
Faced with trying to find another school, Michael's parents had
concerns about sending him to the St. Gerard's / SPEED Coop school
("SPEED"); accordingly in the fall of 1999 Michael began attending half
days at the Parker Junior High School. After learning more about SPEED,
Michael's parents decided that it was an appropriate placement and
transferred him there during the 1999-2000 school year. Michael attended
the SPEED extended school year program ("ESY") in the summer of 2000. At
the time of his
placement at SPEED, Michael's diagnosis was obsessive
compulsive disorder and learning disability. Id.
In August 1999, Dr. Michelle Metrick recognized autistic-like behavior
in Michael. Dr. Metrick referred Michael to Dr. Bennett Leventhal whose
waiting list was over a year. While waiting to be seen be Dr. Leventhal,
Michael was seen by Dr. Valerie Scaramella Nowinski who diagnosed him
with autism in November of 1999. Dr. Nowinski also referred the parents
to Dr. Juan Valdivia, a psychiatrist. Dr. Valdivia changed Michael's
diagnosis several times from March 2000 to May 2000.
During the summer of 2000, the District and Plaintiffs met for a
mediation session and a multi-disciplinary conference ("MDC"). D&O at
35. At the MDC, the District rejected Dr. Nowinski's diagnosis of autism
because it did not find her report acceptable. D&O at 37. The District
then sought an evaluation from Dr. Leventhal. D&O at 36. The District
accepted Dr. Leventhal's November 2000 diagnosis of autism and mild
mental retardation. Id.
In September 2000, Dr. Valdivia indicated that he did not think the
SPEED school was an appropriate placement for Michael and suggested that
Michael remain on home-bound education for four to six weeks while he
stabilized with new medication. D&O at 21, 25. Michael's parents withdrew
him from SPEED in October without consulting the District. D&O at 21.
Michael remained on home-bound instruction until February 2001 when he
began attending the ECHO school. D&O at 36. During that time he received
tutoring instruction from Judith McCormick of the Learning Clinic. D&O at
37. Michael currently attends the ECHO school. D&O at 38.
A. ISSUES RAISED BEFORE INDEPENDENT HEARING OFFICER
Plaintiffs originally requested a due process hearing in June of 2000.
D&O at 1. For various reasons the hearing was not held until September
and October of 2001. D&O at 3. Plaintiffs raised eight issues before the
independent hearing officer ("IHO"), principally alleging that the
District denied Michael a free appropriate public education ("FAPE") for
various reasons. First, Plaintiffs alleged that the District denied a
FAPE by failing to evaluate the student's unique needs after it had
notice of behaviors likely to indicate a disability. D&O at 30. Second,
The District denied a FAPE before and after the student's placement at
Parker by failing to consider the August 1999 report recommending an
evaluation with Dr. Leventhal, by not creating an appropriate IEP, by not
providing the student with a full-day educational program at Parker, and
by failing to provide a full-time aide. D&O at 32. Third, the district
violated the procedural requirements and denied a FAPE by discounting the
Neuropsychology Diagnostic Center ("NDC") report at the May 2000 IEP
meeting, and by requiring the parents to produce an NDC representative as
a prerequisite to its consideration of the NDC report. D&O at 33.
Fourth, the district intentionally violated the mediation agreement and
denied a FAPE at the August 2000 MDC by discounting the parents'
representatives to the IEP and discounting the NDC evaluation, by
refusing to consider or address the services, program, and placement
required by the mediation agreement. D&O at 35. Furthermore, the
District's actions exhibited deliberate indifference. Id. Fifth, the
district denied a FAPE by failing to provide Plaintiffs with an
opportunity to participate in the formulation of a FAPE when it failed to
provide prior written notice of proposed or refused changes in
programming, or placement, when it failed to follow the IEP
after notice that SPEED was inappropriate, when it failed to reconvene
the IEP in response to the student's needs, and when it failed to provide
appropriate home-based instruction. D&O at 37. Sixth, the District denied
the student a FAPE in the summer of 2001 by failing to provide his
parents with a response to specific proposals for additional ESY
services, by failing to inform them of the start date and duration of ESY
program, and by limiting the duration and type of extended school year
("ESY") services after notice of the student's needs. D&O at 39.
Seventh, the District intentionally or recklessly discriminated against
Michael because of his disability or his parents' advocacy. Eighth, the
District denied a FAPE after receiving the NDC report by failing to
provide appropriate IEPs, and withholding special education services. D&O
B. RELIEF REQUESTED FROM INDEPENDENT HEARING OFFICER
Plaintiffs requested fourteen items of relief. First, Plaintiffs
requested a finding of deliberate indifference. D&O at 40. Second, they
requested an order for procedural safeguards. D&O at 41. Third, they
requested reimbursement for the NDC diagnosis and charges. D&O at 42.
Fourth, Plaintiffs requested reimbursement for the expenses related to
the Learning Clinic (Ms. McCormick's services). D&O at 43. Fifth, they
requested an order for outside social language programming. Id. Sixth,
they requested an order for outside social language therapy. D&O at
4344. Seventh, they requested an order that Michael has the need of
year-round social interaction and skills services. D&O at 44. Eighth,
Plaintiffs requested an order for year-round social skills training and
therapy. Id. Ninth, they requested that an IEP be convened and that the
District provide full-day summer services. D&O at 45. Tenth, they
requested an order for outside parent training. Id. Eleventh, they
requested an order for provision of outside counseling. D&O at 46.
Twelfth, they requested an order for compensatory education. Id.
Thirteenth, Plaintiffs requested an order for appropriate related
services. D&O at 47. Finally, Plaintiffs requested an order requiring the
District to convene a new IEP meeting and create a new IEP with the aid
of an educational consultant with expertise in autism. D&O at 48.
C. SUMMARY OF INDEPENDENT HEARING OFFICER'S DECISION.
The independent hearing officer ("IHO") did not find that the District
had denied the student a FAPE on any ground alleged, D&O at 32-34,
36-39, and found no deliberate indifference or violation of the mediation
agreement. D&O at 35, 36, 39. However, the IHO did grant the parent
partial relief on several items. D&O at 35, 37, 38. Plaintiff then
petitioned this Court for attorney's fees under the prevailing party
provision of the IDEA.
This Court has jurisdiction to adjudicate the fee petition based on
20 U.S.C. § 1415(i)(3)(A). This subsection provides: "The district
courts of the United States shall have jurisdiction of actions brought
under this section without regard to the amount in controversy." Federal
courts have jurisdiction over independent attorney's fees suits resulting
from an IDEA administrative proceeding. Board of Educ. of Oak Park v.
Nathan R., 199 F.3d 377, 381-82 (7th Cir. 2000) (citing Brown v.
Griggsville Cmty. Unit. Sch. Dist. No. 4, 12 F.3d 681, 683-84 (7th Cir.
Although originally presented as a motion for summary judgment, the
parties have agreed to proceed with a trial on the papers. Each has
submitted briefs, declarations, and exhibits, including the Decision and
Order of the hearing officer which constitute the record in this case. A
district court may conduct a summary bench trial "based on the record
compiled in summary judgment proceedings" if the parties so stipulate and
indicate a waiver of a full bench trial. Acuff-Rose Music, Inc., v.
Jostens, Inc., 155 F.3d 140, 142 (2nd Cir. 1998) (citing May v.
Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir.
1986). This Court has previously conducted a trial on the papers. See,
e.g., Binder v. Bristol-Myers Squibb, Co., 184 F. Supp.2d 762 (N.D. Ill.
2001); Bosco v. Chicago Transit Authority, 164 F. Supp.2d 1040 (N.D.
Ill. 2001); Nolan v. City of Chicago, 125 F. Supp.2d 324 (N.D. Ill.
2000); see also, Morton Denlow, Trial on the Papers: An Alternative to
Cross-Motions for Summary Judgment, FEDERAL LAWYER, August 1999, at 30;
Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th
Cir. 2001) (stating that where the judge decides case based on a
stipulated record the procedure is "more akin to a bench trial than to a
summary judgment ruling"). The parties have agreed to proceed in this
manner and waive their right to present oral testimony on the issues
B. PREVAILING PARTY STATUS
In an action under the IDEA "the court, in its discretion, may award
reasonable attorneys' fees as part of the costs to the parents of a child
with a disability who is the prevailing party."
20 U.S.C. § 1415(i)(3)(B). Congress has authorized the award of
attorney's fees to the "prevailing party" in numerous statutes, and the
Supreme Court has interpreted these fee shifting provisions
consistently. Buckhannon v. West Virginia Dept. of Health and Human
Resources, 532 U.S. 598, 602 n. 4 (2001) (citing Hensley v. Eckerhart,
461 U.S. 424, 433 n. 7 (1983)). The term "prevailing party" under the
IDEA has the same general meaning as under 42 U.S.C. § 1988,
concerning civil rights litigation. Bd. of Educ. of Downers Grove Grade
Sch. Dist. No. 58 v. Steven L., 89 F.3d 464, 468 (7th Cir. 1996).
The Supreme Court's definition of the term "prevailing party" has
evolved over the years, and a review of the leading cases is
instructive. In Hensley v. Eckerhart, the Court recognized that the
standard for determining whether a party was the prevailing party "has
been framed in various ways." 461 U.S. 424, 433 (1983). The Court noted
[a] typical formulation is that `plaintiffs may be
considered prevailing parties for attorney's fees
purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the
parties sought in bringing suit.' This is a generous
formulation that brings the plaintiff only across the
Id. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.
1978). Once the party has reached this "threshold," the degree of success
is a crucial factor in determining whether the fees requested are
reasonable; thus, where the claims are distinct, time spent on an
unsuccessful claim should not be included. Id. at 440. In addition, where
the plaintiff achieves only limited success, the "court should award
only that amount of fees that is reasonable in relation to the results
The determination of whether a party prevailed was the subject of a
circuit split. Some circuit's required a party to succeed on a "central
issue" in the litigation in order to prevail, while others used a less
rigorous standard requiring only that the party succeed on a significant
issue and recover some of the relief sought in the litigation. Tex. State
Teachers Ass'n. v. Garland Indep. Sch. Dist., 489 U.S. 782, 784 (1989).
Garland rejected the "central issue" standard and articulated a more
lenient standard: "at a minimum, to be considered a prevailing party
within the meaning of § 1988, the plaintiff must be able to point to
a resolution of the dispute which changes the legal relationship between
itself and the defendant." Id. at 792. Furthermore, the Supreme Court
held that "a prevailing party must be one who has succeeded on any
significant claim affording it some of the relief sought, either pendente
lite or at the conclusion of the litigation." Id. at 790-91. Therefore,
success in any part of the proceeding satisfies the requirement under
this test. Finally, in articulating the new test, the Court clarified its
understanding of the Henlsey decision: "Hensley does indicate that the
degree of the plaintiffs success in relation to the other goals of the
lawsuit is a factor critical to the determination of the size of a
reasonable fee, not eligibility for a fee award at all." Id. at 790.
While this creates a low threshold for prevailing party status, the Court
did indicate that purely technical or de minimis success was not
sufficient to entitle a party to a fee award. Id. at 792.
Garland arose in the context of a state and local teacher's
association's constitutional challenge to a school district's
prohibitions of communications between the associations and teachers
during the school day. Id. at 785. The First and Fourteenth Amendment
challenges focused on a school district regulation which prohibited
employee organizations access to the school during school hours,
prohibited the use of school mail and other internal communication systems
by employee organizations, but did permit organizations access to the
school before or after school hours only with the prior request and
approval of the principal. Id. In the district court, the plaintiffs
prevailed on only the last issue: that the prior approval of the principal
for organization meetings after school hours was unconstitutionally
vague. Id. at 786.
The appellate court reversed in part, finding also that the prohibition
of teacher-to-teacher discussions of employee associations during the day
and the prohibition against use of inter-office mail was
unconstitutional. The district court and Fifth Circuit held that this
partial success was not enough under the "central issue" test for
prevailing party status because the plaintiffs did not obtain the primary
relief sought. Id. at 787. Both courts characterized the central issue as
the constitutionality of the school district's limitation of school
access to representatives during school hours. Id. ...