Combs by Combs v. School Bd. of Rockingham County

• Decision Date: 02 February 1994
• Docket Number: No. 92-2292,92-2292
• Citation: 15 F.3d 357
• Parties: 89 Ed. Law Rep. 366, 4 A.D.D. 561 Jeffory S. COMBS, by his mother and next friend, Teresa COMBS, Plaintiff-Appellant, and Teresa Combs, Plaintiff, v. SCHOOL BOARD OF ROCKINGHAM COUNTY, Defendant-Appellee, and David L. Andes, Superintendent; Fred Kennon, Director of Special Education; Gary Lineweaver, Member of School Board in his official capacity; C. Eugene Lantz, Member of School Board in his official capacity; Frederick Eberly, Member of School Board in his official capacity; Marsha Blay, Member of School Board in her official capacity; Bobby W. Necsary, Member of School Board in his official capacity, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 357

15 F.3d 357

89 Ed. Law Rep. 366, 4 A.D.D. 561

Jeffory S. COMBS, by his mother and next friend, Teresa COMBS, Plaintiff-Appellant and Teresa Combs, Plaintiff, v. SCHOOL BOARD OF ROCKINGHAM COUNTY, Defendant-Appellee and David L. Andes, Superintendent; Fred Kennon, Director of Special Education; Gary Lineweaver, Member of School Board in his official capacity; C. Eugene Lantz, Member of School Board in his official capacity; Frederick Eberly, Member of School Board in his official capacity; Marsha Blay, Member of School Board in her official capacity; Bobby W. Necsary Member of School Board in his official capacity, Defendants.

No. 92-2292.

United States Court of Appeals Fourth Circuit.

Argued Oct. 27, 1993.

Decided Feb. 2, 1994.

ARGUED: Roger Allen Ritchie, Roger Ritchie & Partners, P.L.C., Harrisonburg, VA, for Appellants. Douglas Leigh Guynn, Wharton, Aldhizer & Weaver, Harrisonburg, VA, for Appellee. ON BRIEF: Jennifer E. Kirkland, Wharton, Aldhizer & Weaver, Harrisonburg, VA, for Appellee.

Before RUSSELL and WILLIAMS, Circuit Judges, and SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WILLIAMS, Circuit Judge:

The question before us is whether Jeffory Combs ("Combs") ¹ may recover attorneys' fees as the prevailing party in an action brought under the attorneys' fees provision of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Secs. 1400-1485, against the School Board of Rockingham County ("School Board"). In administrative proceedings the School Board's actions were deemed to be in accordance with the Act, but the School Board later made some changes that comported with Combs' demands. We agree with the district court that Combs is not a "prevailing party" and is therefore not entitled to an award of fees under the Act.

I.

The IDEA ² sets forth a comprehensive scheme which requires states that receive federal funds for education of the handicapped to provide such children with a "free appropriate public education." 20 U.S.C.A. Sec. 1412(1) (West Supp.1993). ³ The Act requires that schools establish an individualized educational program ("IEP") for each handicapped child, review it annually with the child's parents or guardians, and revise it when appropriate. 20 U.S.C.A. Sec. 1414(a)(5) (West Supp.1993). The Act guarantees to the parents of such children the right to challenge the appropriateness of the IEP in an administrative hearing, and provides subsequent judicial review. See 20 U.S.C.A. Sec. 1415 (West Supp.1993); Dellmuth v. Muth, 491 U.S. 223, 225, 109 S.Ct. 2397, 2398, 105 L.Ed.2d 181 (1989); Va.Code Ann. Secs. 22.1-213 to -219 (Michie Supp.1993) (adopting procedures in accordance with the Act).

Shortly after he was born to Teresa Wine Combs, Jeffory Combs suffered seizures which resulted in brain damage, ⁴ leaving him handicapped within the meaning of the IDEA. 20 U.S.C.A. Sec. 1401(a)(1)(A) (West Supp.1993). From the age of two, the Rockingham County School District educated Jeffory in his home through its Homebound Program. At age 14, Jeffory began attending schools; he was 18 at the time this action commenced. ⁵ In addition to attending school, Jeffory enjoyed outside activities like horseback riding, travelling, and shopping at the mall. Now 23, he maneuvers only with assistance, and while he can make sounds, his communications are intelligible only to those who know him well.

Jeffory's mother, who is in charge of his care, had no quarrel with the School System's placement and treatment of Jeffory until the 1988-89 school year. In May 1988, the School District had the Medical College of Virginia conduct an independent evaluation of Jeffory to determine what education might be most appropriate. In response to those tests, the School District put into effect an IEP for the 1988-89 school year which placed Jeffory in a two-day-per-week homebound program, with a three-day-per-week school program divided between four hours each day in an Educably Mentally Retarded ("EMR") class at Myers High School and two hours in a Severely and Profoundly Handicapped ("SPH") class at Broadway High School. ⁶ His mother agreed to this placement by signing the IEP. ⁷

In February 1989, perceiving that Jeffory had an adverse reaction to the program, Ms. Combs requested a due process hearing to challenge the appropriateness of the IEP. See 20 U.S.C. Sec. 1415(b)(2) (1988); 34 C.F.R. Sec. 300.506(a) (1991); Va.Code Ann. Sec. 22.1-214(B) (Michie Supp.1993). Among other concerns, she thought the environment at Broadway High School was too dusty and aggravated Jeffory's ear infections, that the children in his class were too disruptive, and that the school should provide more therapy and also offer assurance that a 1989 summer program would be provided to Jeffory. While Combs raised other issues at the administrative hearing, they are not relevant to this action because Combs does not claim to have prevailed on those issues. ⁸ It is undisputed that Ms. Combs did not notify school authorities of her specific concerns before requesting a due process hearing in February 1989. (J.A. at 492-93, 270-72, 312.)

Under the Virginia statutory scheme, Va.Code Ann. Sec. 22.1-214 (Michie Supp.1993), the State Board of Education is instructed to prescribe procedures to afford due process to handicapped children and their parents and guardians pursuant to the IDEA. In compliance, the State Board of Education passed "Regulations Governing Special Education Programs for Handicapped Children and Youth in Virginia," which sets forth a two-tiered administrative review process. Section 3.5 of the Regulations, "Procedural Safeguards," governs hearings and appeals. That section provides that upon request, an appeal of a local school board decision is to be heard by a Hearing Officer, with further administrative appeal to the state agency, which appoints a State Review Officer.

Ms. Combs requested a due process hearing on February 27, 1989, and removed Jeffory from school in April of that year. He did not return until January 1990. Five days of administrative hearings were held in May, June, and August of 1989. Both the Hearing Officer and the State Review Officer found that the challenged 1988-1989 IEP was adequate and that the school district had provided Jeffory with a "free appropriate public education" as required by the IDEA. ⁹ After the proceedings and resulting administrative report, the school did make some changes in Jeffory's 1989-1990 IEP that comported with Combs' demands. These changes were not required by the administrative officers, although several were suggested in the Hearing Officer's report.

In November 1990, Combs filed this suit in district court seeking only attorneys' fees. ¹⁰ After an evidentiary hearing, the district court held that Combs was not a "prevailing party" entitled to fees. On appeal, we review the district court's factual determination that Combs did not prevail on any significant issue for clear error. See Child v. Spillane, 866 F.2d 691, 694 (4th Cir.1989) (reversing award of attorney fees to a disabled child under the Rehabilitation Act because district court's finding that the child "prevailed" was clearly erroneous).

II.

Combs contends that he prevailed on three of the issues raised before the Hearing and Review Officers. The relevant issues are (1) whether the School Board met its obligation to make summer services available to Jeffory for the summer of 1989, (2) whether Jeffory was wrongly placed in Broadway High School when his chronic ear infections were aggravated by dust due to the age of the building and construction at Broadway High School and other particularly vocal children in the SPH class upset Jeffory, and (3) whether more hours of therapy were required.

Under the fee shifting provisions of IDEA, "the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a child or youth with a disability who is the prevailing party." 20 U.S.C.A. Sec. 1415(e)(4)(B) (West Supp.1993). The term "prevailing party" connotes the same general meaning under Sec. 1415(e)(4)(B) and 42 U.S.C. Sec. 1988, and cases interpreting both sections apply the same principles to determine a plaintiff's entitlement to attorneys' fees. See, e.g., Tice v. Botetourt County School Bd., 908 F.2d 1200, 1205 n. 4 (4th Cir.1990) (citing Sec. 1988 principles in an EHA case); Spillane, 866 F.2d at 692 n. 1 (4th Cir.1989) (noting that Sec. 1988 cases also apply to "prevailing party" issue under the Rehabilitation Act).

The Supreme Court recently examined the "prevailing party" standard in a Sec. 1988 case decided after the district court's opinion in this litigation. The Court stated that in order to be a "prevailing party," the "plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement." Farrar v. Hobby, --- U.S. ----, ----, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992) (citations omitted). In Farrar, the Court held that the recipient of a nominal damage award might be denied an award of attorneys' fees even though he is a "prevailing party" under the statute. The Court explained that "a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Id.

Both the administrative Hearing Officer, David J. Andre, and the State Review Officer, John A. Gibney, Jr., found that the School Board acted properly in its treatment of Jeffory and development of the IEP. Nonetheless, Combs argues that even though he did not receive a favorable judgment from the administrative process, the pressure of the proceeding brought about relief that followed in the form of a revised IEP for the 1989-1990 school year, and therefore he qualifies as a "p...