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Christopher C. v. Board of Education of the City of Chicago

August 26, 2010


The opinion of the court was delivered by: Matthew F. Kennelly, District Court


Christopher C. and Lissette C. have filed this action against the Chicago Board of Education, District 299 (Board) to recover attorney's fees under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(3). They incurred the fees in connection with an administrative due process hearing in which they substantially prevailed.


At the end of the 2008-09 school year, Christopher C. was a twelve year old boy who had completed seventh grade at Irving School. He has been diagnosed with emotional behavior disorder, selective muteism, and attention deficit hyperactivity disorder. On March 19, 2009, Christopher's mother, Lisette C., filed a request for a due process hearing under 20 U.S.C. § 1415, alleging that the Board had not provided Christopher a free and appropriate education from October 2006 through the date of her request.

The due process hearing took place in May-June 2009. On June 29, 2009, the hearing officer issued a written decision. The officer ruled that the Board failed to appropriately identify Christopher's needs, implemented a defective individualized education plan (IEP), failed to convene an IEP meeting when it became obvious that Christopher was not appropriately responding to social work services, and improperly removed him from special education services. The officer ordered the Board to place Christopher in a private therapeutic day school for the 2009-10 school year, provide the plaintiffs with various services and training, convene an IEP meeting, and reimburse Lisette for payments previously made to Dr. Stanford, a private neuropsychologist and speech therapist. The officer also ordered the Board to contact Christopher's parents by July 7, 2009 to schedule occupational therapy, assistive technology, speech, and language evaluations. When this deadline passed without any information from the Board, the plaintiffs' attorney consulted with Dr. Stanford and Kathie Fouks, director of Acacia Academy, to find independent evaluators in these areas.

On July 29, 2009, Jonathan Hermann, an attorney for the Board, sent an e-mail scheduling the IEP meeting the hearing officer had directed. The meeting was held on August 27, 2009 and included the plaintiffs, their attorney Nelly Aguilar, Dr. Stanford, Ms. Fouks, and Chicago Public Schools staff. Christopher began attending a private therapeutic day school on October 13, 2009.

During July and August 2009, Ms. Aguilar consulted and corresponded with the plaintiffs, Dr. Stanford, Ms. Fouks, and Dr. Marsden-Johnson, an independent evaluator. Ms. Aguilar also filed a complaint with the Illinois State Board of Education (ISBE) seeking assistance in enforcing the relief ordered by the hearing officer, via a letter dated September 21, 2009. From September 2009 through January 2010, Ms. Aguilar engaged in extensive correspondence concerning enforcement and compliance with the hearing officer's order, including correspondence with Mr. Hermann, the Board's attorney.

On January 7, 2010, the plaintiffs, through Ms. Aguilar, sent a letter demanding attorney's fees, along with an itemized list or fees and costs incurred during the underlying due process hearing as well as post-hearing monitoring and enforcement efforts. Plaintiffs filed this action on February 5, 2010. They seek $37,299.71 in attorney's fees relating to the hearing and post-hearing enforcement work. Plaintiffs also seek $151.71 in photocopying costs, plus prejudgment interest from the date of their fee request.

The Board has filed a motion for summary judgment, arguing that plaintiff's fee petition is untimely. Alternatively, the Board asks the Court to reduce the fee amount to $28,846.12 on various grounds. The Board also argues that prejudgment interest is inappropriate in this case. Plaintiffs have cross-moved for summary judgment.


It is undisputed that plaintiffs were prevailing parties entitled to recover reasonable attorney's fees under the IDEA. 20 U.S.C. § 1415(i)(3)(B)(1). Cases involving analogous attorney's fees statutes apply to determination of a fee petition under the IDEA. See Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1984); see also Jodlowski v. Valley View Cmty. Unit Sch. Dist. No. 365-U, 109 F.3d 1250, 1253 n.2 (7th Cir. 1997).

The Board argues that the plaintiffs' fee petition is untimely because it was filed after the deadline for IDEA fee petitions. Section 1415 does not set a specific deadline for filing a claim for attorney's fees. The Seventh Circuit has held that a prevailing party must make a fee claim within 120 days after the hearing officer's order becomes final. Dell v. Board of Educ. Twp. High Sch. Dist., 113, 32 F.3d 1053, 1058-59 (7th Cir. 1994); McCartney C. v. Herrin Cmty. Unit Sch. Dist. No. 4, 21 F.3d 173, 175 (7th Cir. 1994). When, as in this case, the school district does not challenge the hearing officer's decision, the decision becomes final when the time for the district to challenge it has run, 120 days after the decision. Id. at 1063. Thus in a case like this one, the time limit for filing a suit for fees is 240 days after the date of the hearing officer's decision. See Stephanie J. v. Bd. of Educ. of the City of Chicago, Dist. 299, No. 10 C 1359, 2010 WL 3070461, at 82 (N.D. Ill. July 30, 2010) (petition filed 204 days after hearing officer's decision); Justin B. v. Laraway Cmty. Consol. Sch. Dist. 70C, No. 03 C 5462, 2004 WL 1673034, * 2-3 (N.D. Ill. July 23, 2004) (petition filed 140 days after hearing officer's decision).

The plaintiffs in this case filed their suit seeking fees on February 5, 2010, 221 days after the hearing officer's order was entered on June 29, 2009. The Board argues that the July 29, 2009 e-mail by Mr. Hermann, scheduling the IEP meeting the hearing offer had ordered, signaled the Board's intent not to challenge the hearing officer's order. It contends this was the date the order became final, triggering the 120 period for filing a claim for fees. Mr. Hermann's letter, however, did not say the Board would not challenge the decision, nor was it any sort of binding guarantee not to assert a challenge. Other courts in this district have rejected similar arguments, and this Court agrees with them. See, e.g. Stephanie J., 2010 WL 3070461, at *3.

The Board also argues, relying on Rosemary B. v. Bd. of Educ. of Cmty. High Sch. Dist. No. 155, 52 F.3d 156 (7th Cir. 1995), that the 120 day period for filing an attorney's fees petition should begin when the plaintiff has "a factual basis to believe she has achieved the relief she requested through some kind of settlement." Id. at 159. But in this case there was no "settlement" as of the July 29, 2009 date the Board cites, and in any event, the the holding in Rosemary B. applies in cases ...

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