8 F.3d 369 (6th Cir. 1993), 92-1148, Phelan v. Bell

Docket Nº:of Terry Phelan, Plaintiff-Appellant (92-1148),
Citation:8 F.3d 369
Party Name:Susan PHELAN, individually and in her capacity as guardian
Case Date:October 26, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 369

8 F.3d 369 (6th Cir. 1993)

Susan PHELAN, individually and in her capacity as guardian

of Terry Phelan, Plaintiff-Appellant (92-1148),



George BELL (92-1218) and Wayne-Westland Community Schools

(92-1322), Defendants-Appellees, Cross-Appellants,

Michigan Protection and Advocacy Service, Inc., Proposed Intervenor.

Nos. 92-1148, 92-1218 and 92-1322.

United States Court of Appeals, Sixth Circuit

October 26, 1993

Argued March 25, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Dec. 8, 1993.

Page 370

Richard J. Landau, Dykema, Gossett, Spencer, Goodnow & Trigg, Ann Arbor, MI (argued and briefed), for Susan and Terry Phelan.

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Thomas H. Schwarze, Robert A. Lusk (argued and briefed), Keller, Thoma, Schwarze, Schwarze, Dubay & Katz, Detroit, MI, for George Bell.

Stewart R. Hakola, Michigan Protection & Advocacy Service, Marquette, MI, for Michigan Protection and Advocacy Service, Inc.

Russell S. Slatkin (briefed), Stewart Slatkin, Collins, Blaha & Slatkin, Southfield, MI, for Wayne-Westland Community Schools.

Before: KENNEDY and SUHRHEINRICH, Circuit Judges; SPIEGEL, District Judge. [*]

SUHRHEINRICH, Circuit Judge.

Plaintiff Susan Phelan challenges the district court's order awarding only a portion of her attorney's fees from administrative proceedings brought under the Individuals With Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485. For the following reasons, we AFFIRM in part, and REVERSE in part.


Plaintiff Susan Phelan is the mother of Terry Phelan, a severely handicapped eighteen-year old boy. Terry engages in severe Self-Injurious Behavior (SIB) by striking his head up to 120 times per minute.

The Wayne-Westland Community School District, Terry's resident district, contracts with the Northville Public Schools to care for and educate Terry. Concerned that Northville's programs were not sufficient to control Terry's SIB, plaintiff sought alternative treatments and learned of the Self-Injurious Behavior Inhibiting System (SIBIS), an electronic device that straps to the head and generates a mild, brief electrical shock in response to each instance of SIB.

In October 1989, the schools held an Individual Educational Planning Conference (IEPC) for Terry. See 34 C.F.R. § 300.343 (1992); Michigan Admin.Code R. 340.1721c (Supp.1987) (requiring IEPC for disabled children). During the IEPC, the schools proposed an Individualized Education Program (IEP) for Terry which would have continued prior ineffective programs. Dissatisfied, plaintiff proposed use of SIBIS. Northville's Human Rights and Behavior Modification Review Committee refused to authorize SIBIS because it violated school guidelines against the use of contingent electric shock, as well as Michigan's Corporal Punishment Act, Mich.Comp.Laws Ann. § 380.1312 (West Supp.1992). 1

In response to Northville's decision, plaintiff filed a complaint in district court on November 13, 1989, seeking declaratory and injunctive relief requiring use of SIBIS. 2 On November 21, 1989, the district court dismissed this action without prejudice, and directed plaintiff to exhaust her administrative remedies. The following day, administrative hearings began, during which plaintiff argued that Terry's present IEP was inadequate and that SIBIS was necessary to treat Terry's SIB. On December 26, 1989, plaintiff filed a second suit seeking the same relief as the first, as well as a preliminary injunction requiring use of SIBIS. The district court refused to issue the injunction, and the hearings continued.

After plaintiff concluded her presentation, defendants proposed a new IEP using an "educative" approach not yet pursued. The

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Michigan Protection and Advocacy Service (MPAS) intervened and proposed a second new approach called "functional communication training." Neither proposal included SIBIS. Plaintiff continued to urge the use of SIBIS.

After the hearings concluded, the hearing officer issued his decision, which summarizes the issues as follows:

  1. What is an appropriate IEP for Terry which will meet his unique needs and the requirements of both the [IDEA] and Michigan's Mandatory Special Education Act (MMSEA)?

    . . . . .

  2. Does Michigan's Corporal Punishment Act ... prohibit utilization of the SIBIS device ...?

    . . . . .

  3. Do the Northville School District's "Guidelines for the Use of Behavioral Techniques" ... prohibit utilization of the SIBIS device ...?

    . . . . .

  4. If the SIBIS device is utilized as a component of a student's behavior management program, does it constitute a "related service" within the meaning of [the IDEA], MMSEA, or both, and, if so, must it be provided at no cost to the parent?

    As to the first issue, the hearing officer held that an appropriate IEP for Terry must include the approaches proposed by defendants and the MPAS, and ordered the parties to hold an IEPC to implement these approaches. The hearing officer did not order the use of SIBIS, but as to issues two and three, the hearing officer did find that neither Michigan's Corporal Punishment Act nor the school guidelines prohibited SIBIS. The officer added that the device could be used only after all reasonable alternatives had failed. Finally, the hearing officer held that SIBIS was not a "related service" under the IDEA.

    In June 1990, an IEPC was held to develop the new IEP. Plaintiff objected to certain specifics of the IEP. On September 21, 1990, the hearing officer issued a second decision which addressed plaintiff's objections, but left the first decision otherwise unchanged. The parties agreed to the final IEP on November 28, 1990.

    On August 23, 1990, plaintiff filed a motion for attorney's fees under IDEA, 20 U.S.C. § 1415(e)(4)(B). 3 On December 26, 1990, the district court dismissed plaintiff's second complaint without prejudice. 4 On December 27, 1990, plaintiff sought a hearing on her motion for attorney's fees. The district court granted plaintiff's motion for attorney's fees on December 13, 1991 without a hearing, and awarded her 25% of her attorney's fees because she had succeeded on only one of the four issues involved.

    Both parties now appeal the district court's award of attorney fees.


    The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485, requires that local schools provide a "free appropriate public education" to "children with disabilities." 20 U.S.C. §§ 1400(c), 1415(a). To implement the IDEA, schools must prepare

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    a written IEP at the beginning of each school year for each disabled student. 20 U.S.C. §§ 1401(20), 1414(a)(5); 34 C.F.R. §§ 300.340-.349 (1992). Parents are guaranteed notice of school decisions and access to school records regarding their child. 20 U.S.C. § 1415(b)(1)(A), (C)-(D). Dissatisfied parents may challenge a school's proposed IEP at "an impartial due process hearing." 20 U.S.C. § 1415(b)(1)(E), (b)(2).

    The IDEA also provides for an award of reasonable attorney's fees to a prevailing party under the act. 20 U.S.C. § 1415(e)(4)(B). We have interpreted § 1415(e)(4)(B) by analogy to 42 U.S.C. § 1988, the attorney's fees provision for civil rights actions. See Krichinsky v. Knox County Schools, 963 F.2d 847, 849 (6th Cir.1992) (citing Angela L. v. Pasadena Indep. School Dist., 918 F.2d 1188, 1193 (5th Cir.1990) (citing H.R.Rep. No. 296, 99th Cong., 2d Sess. 5-6 (1985); S.Rep. No. 112, 99th Cong., 2d Sess. 13-14 (1985))); Shelly C. v. Venus Indep. School Dist., 878 F.2d 862, 864 (5th Cir.1989), cert. denied, 493 U.S. 1024, 110 S.Ct. 729, 107 L.Ed.2d 748 (1990). We review awards of attorney's fees for an abuse of discretion. Perotti v. Seiter, 935 F.2d 761, 763 (6th Cir.1991) (section 1988 case). A court "abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.) (citations omitted), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985).


    To be a "prevailing party," a party must "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). In Farrar v. Hobby, --- U.S. ----, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Court explained that "a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties ... in a way that directly benefits the plaintiffs." Id. --- U.S. at ----, 113 S.Ct. at 573. See Citizens Against Tax Waste v. Westerville City School, 985 F.2d 255, 257-58 (6th Cir.1993). The Supreme Court has rejected a "central issue test" which would require a party to succeed on the main issue of the litigation to be considered "prevailing." Krichinsky, 963 F.2d at 850 (citing Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 790, 109 S.Ct. 1486, 1492-93, 103 L.Ed.2d 866 (1989)). Rather, a party who partially prevails is entitled to an award of attorney's fees commensurate to the party's success. Id.

    Defendants argue that plaintiff is not a "prevailing party" because the hearing officer did not mandate the use of SIBIS. Defendants' selective focus on SIBIS ignores the reality that, although plaintiff sought SIBIS throughout the proceedings, a broader goal existed as stated in the hearing officer's first decision: "[T]he fundamental purpose of this particular proceeding has become to obtain [an appropriate IEP] for Terry." Plaintiff's success in this regard furthered the underlying goal of the IDEA--providing a "free appropriate public education" for disabled students. See 20 U.S.C. § 1400(c); Angela L., 918 F.2d at 1195.

    The due process hearings were dynamic and interactive,...

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