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October 24, 2002


The opinion of the court was delivered by: Morton Denlow, United States Magistrate Judge



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.


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 evaluation, 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 at 40.


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.


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. 1993)).



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 herein presented.


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).

1. Hensley

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 that

[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 statutory threshold.

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 obtained." Id.

2. Garland

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. ...

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