Somberg ex rel. Somberg v. Utica Cmty. Sch.

• Decision Date: 05 November 2018
• Docket Number: Nos. 17-2195/2196/2197/2313,s. 17-2195/2196/2197/2313
• Citation: 908 F.3d 162
• Parties: Jeannine L. SOMBERG, ON BEHALF OF Dylan S. SOMBERG, Plaintiff-Appellee/Cross-Appellant, v. UTICA COMMUNITY SCHOOLS, Defendant-Appellant/Cross-Appellee, Richard J. Alef, Defendant-Appellee/Cross-Appellant. Utica Community Schools, Plaintiff-Appellant/Cross-Appellee, v. Richard J. Alef, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

908 F.3d 162

Jeannine L. SOMBERG, ON BEHALF OF Dylan S. SOMBERG, Plaintiff-Appellee/Cross-Appellant,

v.UTICA COMMUNITY SCHOOLS, Defendant-Appellant/Cross-Appellee,Richard J. Alef, Defendant-Appellee/Cross-Appellant.

Utica Community Schools, Plaintiff-Appellant/Cross-Appellee,

v.Richard J. Alef, Defendant-Appellee/Cross-Appellant.

Nos. 17-2195/2196/2197/2313

United States Court of Appeals, Sixth Circuit.

Argued: October 3, 2018

Decided and Filed: November 5, 2018

ARGUED: Robert A. Lusk, Anya M. Lusk, LUSK ALBERTSON PLC, Detroit, Michigan, for Appellant/Cross-Appellee. Richard J. Alef, Rochester, Michigan, for Appellees/Cross-Appellants. ON BRIEF: Robert A. Lusk, Anya M. Lusk, LUSK ALBERTSON PLC, Detroit, Michigan, for Appellant/Cross-Appellee. Richard J. Alef, Rochester, Michigan, for Appellees/Cross-Appellants.

Before: GILMAN, KETHLEDGE, and BUSH, Circuit Judges.

RONALD LEE GILMAN, Circuit Judge.

This case arises under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq . Jeannine Somberg filed an administrative complaint on behalf of her autistic son, Dylan Somberg, alleging that Utica Community Schools (UCS) failed to provide him with a Free Appropriate Public Education (a FAPE) under the IDEA during the 2012–2013 school year.

After nearly six years of litigation, the district court entered summary judgment in favor of the Sombergs, affirming an administrative law judge’s (ALJ’s) holding that Dylan was denied a FAPE during the school year in question, but reversing the ALJ’s decision that Dylan was not entitled to any compensatory education for the deprivation. The court ordered UCS to pay for 1,200 hours of tutoring and one year of transition planning as compensatory education. In addition, the court awarded the Sombergs $210,654.65 in attorney fees and costs.

UCS now appeals, and the Sombergs cross-appeal. For the reasons set forth below, we AFFIRM all aspects of the district court’s judgement.

I. BACKGROUND

A. Factual background

Jeannine contends that UCS violated the IDEA because the Individualized Educational Plan (IEP) that it implemented for Dylan during the 2012–2013 school year did not provide him with a FAPE. Dylan is currently 24 years old and suffers from Autism

Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Tourette’s Disorder, and symptoms of Obsessive-Compulsive Disorder. During the 2012–2013 school year, Dylan was 18 years old and in his fifth year of high school at UCS’s Eisenhower High School.

UCS provided Dylan with special education services and annual IEPs. Dylan’s IEP for the 2011–2012 school year terminated in June 2012 because it was written under the assumption that he would graduate after four years and not remain at Eisenhower for a fifth year. In September 2012, UCS amended Dylan’s 2011–2012 IEP to extend through November 2012 without substantively changing any portion of the IEP. The IEP set several annual goals for Dylan concerning daily living, math, reading, social and emotional situations, speech and language, and writing. Each annual goal was supported by one or more short-term objectives.

In addition to delineating annual goals, the IEP provided that Dylan’s IEP team would implement and document a trial of "assistive technology" for Dylan and that he would receive a "50/50 curriculum," meaning that his curriculum would be evenly split between special education classes and general education classes. The "Post-Secondary Vision and Transition Activities" section listed several of the activities in which Dylan was interested, such as his interest in animals, that could lead to employment. But that section did not list any accompanying next steps or resources.

Despite the IEP’s provision regarding a 50/50 curriculum, UCS attempted to place Dylan in Community Based Inclusion (CBI) for the last two periods of his school day. CBI, according to the testimony of a special education teacher at the due process hearing, "represents direct instruction ... in the areas of functional skills within a community setting ... [such as] daily living skills, employability training, recreation[,] leisure, [and] personal social skills."

Dylan was enrolled in three special education classes during his first, second, and third periods and one general education class during his fourth period. Placing Dylan in CBI for his fifth and sixth periods was therefore inconsistent with his IEP.

After Jeannine objected to Dylan’s placement in CBI, UCS provided him with instruction in the principal’s office. There, Dylan was secluded from other students and, in Jeannine’s opinion, did not receive "homework or other meaningful education." Jeannine asked to see a class schedule so that she could find general education classes for Dylan to attend during his fifth and sixth periods as an alternative to CBI or the principal’s office, but UCS allegedly ignored her request until her attorney brought the issue to the ALJ’s attention. Dylan then selected several general education classes in which to enroll, but a UCS employee told him that the classes he had chosen were full.

UCS eventually admitted that Dylan’s class schedule between September 4, 2012 and October 1, 2012 was not consistent with his IEP, thereby constituting the denial of a FAPE. By June 2013, UCS had reevaluated Dylan and developed a new IEP, which was amended several times prior to the 2013–2014 school year. UCS continued to complete annual IEPs for Dylan for several years thereafter that it contends were in compliance with the IDEA. But Jeannine voluntarily withdrew Dylan from UCS in October 2015 and enrolled him in a private school.

B. Procedural background

In September 2012, the Sombergs filed an administrative complaint with the Michigan Department of Education, alleging that UCS’s IEP for Dylan did not provide him with a FAPE as required by the IDEA. They contended, among other things, that UCS denied Dylan a FAPE by requiring him to attend CBI in violation of his IEP. The Sombergs amended the complaint twice to raise additional IEP issues.

UCS presented the Sombergs with a written offer of settlement in October 2012, proposing to, among other things, "[d]etermine whether [Dylan] is entitled to compensatory education due to his assignment to [CBI] at the beginning of the 2012–2013 school year and, if so, provide the necessary compensatory education." The Sombergs rejected UCS’s offer, countering with a request for $7,195 in cash to compensate for Dylan’s denial of a FAPE between September 3, 2012 and October 16, 2012, plus attorney fees. No settlement was reached.

The ALJ assigned to the case subsequently held a three-day due-process hearing in December 2012. There were four issues in contention:

1. Was Dylan denied a FAPE for the 2012–2013 school year because of procedural errors in the September 7, 2012 IEP?

2. Was Dylan denied a FAPE for the 2012–2013 school year because the September 7, 2012 IEP lacked measurable goals for Dylan?

3. Was Dylan denied a FAPE because the September 7, 2012 IEP failed to address a proper transition plan?

4. Was Dylan denied a FAPE in the least restrictive environment?

The ALJ issued her Decision and Order in January 2013. First, the ALJ held that UCS did not violate any of the procedural requirements for developing an IEP. The ALJ next held that Dylan was denied a FAPE for the 2012–2013 school year because all but one of the goals set forth in the September 2012 IEP were not measurable as the IDEA requires. Third, the ALJ held that Dylan was denied a FAPE during the 2012–2013 school year because the transition plan in the September 2012 IEP was "woefully inadequate." Finally, the ALJ held that the Sombergs had not established that Dylan’s IEP was inconsistent with the IDEA’s least-restrictive-environment requirement, which provides that school districts must educate students with disabilities alongside students without disabilities to the maximum extent possible.

The ALJ also noted that UCS had failed to comply with the IEP’s mandate to implement and document a trial of assistive technology. And because UCS admitted that Dylan’s class schedule at the beginning of the 2012–2013 school year was not consistent with his IEP, the ALJ noted that this too denied Dylan a FAPE. The ALJ accordingly ordered UCS to develop a compliant IEP within 30 school days and complete the assistive technology assessment within 15 school days. Despite finding these multiple FAPE deficiencies, the ALJ determined that Dylan was not entitled to any compensatory education under the IDEA.

The Sombergs appealed the ALJ’s Decision and Order by filing a complaint in the United States District Court for the Eastern District of Michigan. They contended that the ALJ erred in (1) finding that UCS complied with the IDEA’s procedural requirements for developing an IEP despite UCS not allowing Jeannine to meaningfully participate in the IEP process, and (2) failing to award any compensatory education to Dylan. As the "prevailing part[ies]" under the IDEA, they also sought attorney fees and costs.

UCS responded by filing a counterclaim against Jeannine and a third-party complaint against her attorney, Richard Alef, seeking attorney fees and costs under the IDEA. In both the counterclaim and the third-party complaint, UCS alleged that Jeannine and Alef had filed the administrative complaint for an improper purpose and had made fictitious claims, thus entitling UCS to attorney fees and costs.

By stipulation of the parties, the court severed the third-party complaint against Alef into a separate action. The court ultimately dismissed the claim against him. Utica Cmty. Schs. v. Alef , No. 13-14022, 2017 WL 5892223, at *2 (E.D. Mich. Feb. 9, 2017). UCS appealed, and this court affirmed. Utica Cmty. Schs. v. Alef , 710 F. App'x 673, 676 (6th Cir. 2017). The district court also eventually held that UCS’s counterclaim against Jeannine was without merit.

On the merits of the Sombergs’ appeal of the ALJ’s order, the district court denied the parties the...