Johnson v. Bismarck Public School Dist., 90-5557

• Citation: 949 F.2d 1000
• Decision Date: 25 November 1991
• Docket Number: No. 90-5557,90-5557
• Parties: 71 Ed. Law Rep. 403 Delores JOHNSON, Appellant, v. BISMARCK PUBLIC SCHOOL DISTRICT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1000

949 F.2d 1000

71 Ed. Law Rep. 403

Delores JOHNSON, Appellant, v. BISMARCK PUBLIC SCHOOL DISTRICT, Appellee.

No. 90-5557.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1991.

Decided Nov. 25, 1991.

Stephen D. Little, Bismarck, N.D., argued, for appellant.

Gary R. Thune, Bismarck, N.D., argued, for appellee.

Before ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

Delores Johnson appeals the district court's ¹ dismissal of her action to recover attorneys' fees incurred in a state administrative proceeding brought to enforce her rights under the Education of the Handicapped Act (EHA), 20 U.S.C. §§ 1400-1485. Johnson argues that she was the prevailing party because the proceeding ended in a consent agreement providing the relief sought in her complaint, and that the district court abused its discretion in denying her a fee award. Finding no abuse of discretion, we affirm.

I.

Johnson's son Michael is eligible for special education services under the EHA. In August 1989, defendant Bismarck Public School District (the "District") learned from its sister agency in Williston, North Dakota, that seven year old Michael would move to Bismarck that fall. On September 27, 1989, Johnson enrolled Michael in the Bismarck public schools, two days after she attended an initial meeting with District staff to discuss program and placement options for Michael. In November, after obtaining information about Michael's prior program in Williston and a medical evaluation of his disorders, the District prepared an Individualized Educational Program (IEP), as required by EHA. Johnson signed the IEP on December 15, 1989, after numerous meetings with District staff.

By the end of 1989, Johnson had become upset about the adequacy of Michael's educational services and the District's responsiveness to her concerns. When the situation failed to improve, she hired an attorney in early March, 1990. The attorney demanded and received a copy of Michael's record from the District. He then attended a meeting between Johnson and school officials on April 2, 1990, but did not participate.

Another meeting to discuss Michael's placement and program was scheduled for April 17. At the request of Johnson's attorney, this meeting was rescheduled to April 24. Neither Johnson nor her attorney attended the April 24 meeting. After the District called to ask why he missed the meeting, Johnson's attorney began preparing a due process complaint, which he filed with the North Dakota Department of Public Instruction on May 2, 1990.

The complaint alleged in twenty numbered paragraphs a variety of procedural errors and EHA compliance failings by the District, obviously consisting of every perceived omission and questionable action that counsel could cull from his examination of Michael's record. The administrative complaint then prayed for the following relief:

1. Continuation of current placement pending the provision of legally mandated testing, evaluation, and the development of an Individual Educational Plan (IEP).

2. Compensatory education services throughout the summer of 1990 in order to compensate Michael Johnson for the failures of the Bismarck Public School District to heretofore provide him with legally mandated education services.

On June 25, 1990, after a number of negotiating sessions, the parties entered a consent agreement providing:

II. As a resolution of the [due process complaint], the [District] has agreed to provide Michael Johnson the following relief:

1. Appropriate testing and evaluation and the development of an appropriate Individual Educational Plan (IEP).

2. An extended year program to prevent educational regression throughout the summer of 1990....

When the District refused Johnson's demand for attorneys' fees, she filed this action for the sole purpose of recovering her attorneys' fees for the state administrative proceeding.

Johnson promptly moved for summary judgment awarding her attorneys' fees and costs in the amount of $6,420.55. The District contested both her right to a fee award and the amount requested. Following the submission of affidavits and memoranda by both parties, the district court denied Johnson's motion and granted summary judgment in favor of the District. The court concluded that, although Johnson "could be construed as the prevailing party," she "unreasonably protracted the final resolution of the controversy" because "neither [Johnson] nor her attorney made an effort to resolve the matter or articulate [her] requests to the [District] prior to the filing of the due process complaint." This appeal followed.

II.

The EHA provides federal funding to state and local agencies for the education of handicapped children and conditions that funding upon compliance with extensive procedural and substantive requirements. See generally Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To be eligible for federal funds, a state must recognize the rights of a parent to participate in the development of an IEP for the child; to receive notice of relevant actions and decisions; and to challenge an action or IEP, first in an "impartial due process hearing" by the state agency, and then by an action in state or federal court. See 20 U.S.C. §§ 1401(20), 1415(b), (d), (e); Town of Burlington School Comm. v. Massachusetts Dept. of Educ., 471 U.S. 359, 361, 105 S.Ct. 1996, 1998, 85 L.Ed.2d 385 (1985). It is undisputed that the District is subject to these requirements.

Section 1415(e)(4) governs the award of attorneys' fees in actions to enforce EHA rights. It contains two provisions that are critical to our resolution of this appeal:

"(B) In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a handicapped child or youth who is the prevailing party.

* * * * * *

"(F) Whenever the court finds that ... the parent or guardian, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy ... the court shall reduce, accordingly, the amount of the attorneys' fees awarded under this subsection."

Many circuits have held, and we agree, that this statute permits a parent to recover attorneys' fees after prevailing at the state administrative level by filing a separate suit in federal court solely for that purpose. See Moore v. District of Columbia, 907 F.2d 165, 166 (D.C.Cir.) (en banc), cert. denied, --- U.S. ----, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990), and cases cited. Thus, the district court correctly dealt with the merits of Johnson's claim for attorneys' fees under § 1415(e)(4).

The initial question is one that obviously troubled the district court--whether Johnson was a "prevailing party," that is, did she "succeed on 'any significant issue ... which achieve[d] some of the benefit [she] sought' " in filing her due process complaint? Texas State Teachers Ass'n v. Garland Ind. School Dist., 489 U.S. 782, 791-792, 109 S.Ct. 1486, 1492-1493, 103 L.Ed.2d 866 (1989), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978). Johnson treats this issue as obvious because the consent agreement gave her "everything she sought" in the due process complaint. The district court stated only that Johnson "could be construed as the prevailing party."

Johnson's due process complaint contained two prayers for relief. First, she requested testing, evaluation and development of another IEP. That is what the EHA requires on an annual basis, §§ 1413(a)(11), 1414(a)(5). The District provided an IEP for Michael for the 1989-1990 school year, his first in Bismarck, and presented evidence that all IEPs are routinely reviewed in the spring of each year. Thus, the "relief" obtained in paragraph II.1 of the consent agreement comes perilously close to being no more than a "purely technical or de minimis" victory. See Texas Teachers, 489 U.S. at 792, 109 S.Ct. at 1493; Rodabaugh v. Sullivan, 943 F.2d 855, 858 n. 3 (8th Cir.1991).

Second, Johnson's complaint requested "compensatory education services throughout the summer" of 1990. Johnson had not requested a special summer program for Michael before filing the due process complaint. Because the Johnsons had not lived in Bismarck the previous summer, Johnson could not assume that an informal request for such a program would be futile. Therefore, although paragraph II.2 of the consent agreement provided a real benefit to Michael, we seriously doubt whether there is the necessary causal relationship between this benefit and the filing of the due process complaint. See Robinson v. Ariyoshi, 933 F.2d 781, 783 (9th Cir.1991); Shipman v. Missouri Dept. of Family Serv., 877 F.2d 678, 682 (8th Cir.1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 842, 107 L.Ed.2d 837 (1990).

For the above reasons, we share the district court's ambivalence on this issue. While it would be excessively harsh to hold that Johnson was not a prevailing party at all, there was little gained by litigation that ended with a promise by the District to provide services that it had not previously refused to provide. Thus, we conclude that this was the kind of "limited success" that justifies a significant reduction in an attorneys' fee award. See Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983); Max M. v. New Trier H.S. Dist., 859 F.2d 1297, 1301-1302 (7th Cir.1988).

Assuming Johnson was a prevailing party, § 1415(e)(4)(B) expressly provides that an award of attorneys' fees is not automatic or mandatory, but is within the sound discretion of the district court. We review fee award decisions on an abuse of discretion standard. Independent School Dist. No. 623 v. Digre, 893 F.2d 987, 990 (8th Cir.1990). In this case, we conclude that the district court did not...