                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                        _________________________

                        Nos. 01-2742WA, 01-3114WA
                        _________________________

Brenda Deann Birmingham,               *
                                       *
       Appellee/Cross-Appellant,       *
                                       *
       v.                              *
                                       *
                                       *
Omaha School District; David Land,     *
Superintendent of the Omaha School     *
District; Randy J. Centers, Principal  *
of the Omaha School District; Larry    *
Gilbert, as a Current or Former Member *
of the Omaha School Board; Larry       *   On Appeal from the United
Matlock, as a Current or Former        *   States District Court
Member of the Omaha School Board; *        for the Western District
Lanny Fuefett, as a Current or Former *    of Arkansas.
Member of the Omaha School Board; *
Pam Gass, as a Current or Former       *
Member of the Omaha School Board; *
David Arnold, as a Current or Former *
Member of the Omaha School Board; *
Bill Curtis, as a Current or Former    *
Member of the Omaha School Board; *
Mike Fulton, as a Current or Former    *
Member of the Omaha School Board; *
and James Strain, Omaha High School *
Special Education Teacher,             *
                                       *
       Appellants/Cross-Appellees.     *
                                    ___________

                              Submitted: June 12, 2002
                                 Filed: August 8, 2002
                                  ___________

Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                         ___________

RICHARD S. ARNOLD, Circuit Judge.


       This is a dispute between a school district and a parent about the educational
rights of a student under the Individuals with Disabilities Education Act (IDEA). In
an earlier opinion, this Court determined that the Omaha (Arkansas) School District
violated Brenda Birmingham’s right to a free and appropriate public education when
it graduated her at age 18, because the IDEA entitles her to education until she is age
21. See Birmingham v. Omaha Sch. District, 220 F.3d 850 (8th Cir. 2000). We
remanded the case to the District Court to establish the “nature and extent of the
compensatory education to which Brenda is entitled” to remedy this violation. Id. at
857.

       On remand, the District Court1 awarded attorneys’ fees to the Birminghams’
attorney, and he withdrew as counsel, having been appointed judge of a state court.
The school district appeals this award of fees, contending that because the
Birminghams presently refuse to allow Brenda’s compensatory education to begin,
they are not prevailing parties entitled to fees. The Birminghams also appeal, arguing
that the District Court erred in approving an Individualized Education Plan (IEP) for




      1
      The Hon. H. Franklin Waters, late a United States District Judge for the
Western District of Arkansas.

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Brenda that is insufficient in length and content to compensate her for her loss of
education. We affirm the District Court’s resolution of both issues.

                                          I.

       The attorney who represented the Birminghams in their first appeal to this
Court withdrew as counsel a few months after we remanded this case. He filed a
motion to withdraw, helped the Birminghams find new counsel, and then filed a
motion for a partial award of attorneys’ fees for his work in the case. He requested
$20,997 in fees, calculated at $120 per hour for services rendered between May 1995
and March 2001. The school district did not respond to the motion for fees, and the
District Court awarded the full amount requested. The school district filed a motion
for reconsideration, which the District Court denied.

       On appeal, the school district argues that the Birminghams are not a “prevailing
party” and therefore are not entitled to attorneys’ fees. In the alternative, it argues
that the Court failed to give careful scrutiny to the fee request. We reject both
contentions.

       We review de novo the determination of prevailing party status. See Warner
v. Independent Sch. District No. 625, 134 F.3d 1333, 1336 (8th Cir. 1998). A litigant
is a “prevailing party” if he obtains “actual relief on the merits of his claim [that]
materially alters the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby,
506 U.S. 103, 111-12 (1992). The school district argues that because the
Birminghams have refused to allow the compensatory education to begin, they have
thereby lost their status as prevailing parties.

        We do not agree with this proposition. In our prior opinion, we determined that
“[i]t is clear . . . that the IDEA was violated” when the school district graduated

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Brenda before she was 21 years old. Birmingham, 220 F.3d at 853. To remedy this
violation, we remanded the case “to determine the nature and extent of compensatory
education to which Brenda is entitled.” Id. at 857. When this Court ordered the
school to provide such education, we altered the legal relationship between the parties
by granting Brenda a legal right previously denied to her by her school. This is actual
relief on the merits of Brenda’s IDEA claim. She would be directly benefitted by
such compensatory education, since it would repair the harm she suffered from being
deprived of her educational rights. This right to compensatory education suffices to
make the Birminghams a “prevailing party” entitled to attorneys’ fees.

      The fact that the Birminghams have refused, up to now, to allow the
compensatory education to begin, and the ongoing dispute between the parties about
whether the IEP approved by the District Court is sufficient, do not alter the
Birminghams’ status as prevailing parties. First, the school district incorrectly
construes the Birminghams’ present rejection of compensatory education as a “total
and manifest” rejection. School District’s Brief 8. The Birminghams have not
waived their right to compensatory education by refusing to agree to an IEP they
believe is insufficient. They have the right to challenge the length and content of the
IEP in this appeal. Their decision to do so does not remove the school’s duty to
remedy its wrong.

       We review an award of attorneys’ fees for abuse of discretion. Warner, 134
F.3d at 1336. The school district alleges that the District Court failed to engage in a
careful review of the fee application, and instead “uncritically granted the Appellees
every penny of their request,” School District’s Brief 3, “apparently solely because
the Appellants did not respond to the fee request.” Id. at 5. When a fee request is
unopposed, a court is justified in assuming there is no reason to deny it. In addition,
in its order denying the school’s motion for reconsideration of the fee award, the
District Court engaged in an appropriately detailed review of the evidence on fees.
For example, the Court noted that “[n]o single expenditure of time appears to be

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excessive” and that “[t]he fee petition is supported by affidavits and by an itemized
billing.” Birmingham v. Omaha Sch. Dist., No. 98-3030, slip op. at 7 (W.D. Ark.
May 1, 2001). This is sufficient to convince us that the District Court did not abuse
its discretion in awarding fees of $20,997 for five years of legal work on this matter.

                                           II.

      The Birminghams also have filed an appeal with this Court. They argue that
on remand the District Court erred in approving an Individualized Educational Plan
(IEP) for Brenda that was not sufficient in length or content to remedy the harm she
suffered from her early graduation. The problem with this argument is that the
Birminghams, through counsel, agreed to most elements of the IEP, including its
length and content, on multiple occasions. Plaintiffs did not agree that educational
services could be performed by an employee of the district, but our own review of the
IEP has not persuaded us that the Plan is legally insufficient for that reason. For these
reasons, we affirm the District Court’s approval of the IEP plan.

       In the prior appeal to our Court, we ordered the District Court to design an
award of compensatory education for Brenda. On remand, the District Court referred
this issue to a Magistrate Judge.2 The parties began negotiations and had Brenda’s
educational skills evaluated. In April 2001, the Magistrate Judge requested that the
parties update her on the progress of negotiations, including the “extent of the
disagreement.” Birminghams’ App. 13. In May 2001, the Birminghams’ attorney
wrote to the Magistrate Judge that “[i]t appears that the parties do agree that the
proposed IEP is appropriate except that the provisions of the IEP should not be
carried out by the Omaha School District but should be carried out by a certified
teacher in the home of Rose Birmingham and the expense of said teacher to be paid


      2
       The Hon. Beverly Stites Jones, United States Magistrate Judge for the Western
District of Arkansas.

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for by the Omaha School District.” Birminghams’ App. 15b. Rose Birmingham,
Brenda’s mother, was copied on this letter.

       The Magistrate Judge then referred the matter back to the District Court, which
directed the parties to file a statement of reasons and evidence supporting their
respective positions on who should teach Brenda. On July 19, 2001, the District
Court ruled that because the Omaha School District had a qualified special-education
teacher, it was not legally required to pay for a private instructor.

       The Birminghams filed a motion for reconsideration of this order, contending
that the parties “have never reach[ed] an agreement” as to an IEP for Brenda.
Birminghams’ App. 22. Further, they argued that the length and content of Brenda’s
IEP was insufficient. The District Court denied the motion for reconsideration,
stating that the Birminghams were raising new issues that it declined to consider.

       On appeal, the Birminghams renew the arguments made in their motion for
reconsideration. They state that the “Birminghams did not at any time assent” to an
IEP for Brenda. Birminghams’ Brief 5. We do not see how this statement can be
correct. Numerous items in the record reflect that the parties had reached an
agreement about the IEP, with the exception of whether the district’s teacher or a
private instructor would provide the education. For example, the Birminghams’
counsel wrote in a letter to the Magistrate Judge that “the parties do agree that the
proposed IEP is appropriate” except for the teacher-selection issue. Birminghams’
App. 15b. Although this letter was written by counsel, Rose Birmingham was copied
on this letter. She has not told this Court that she failed to receive this letter, or even
that she disagreed with that statement at that time. Additionally, the Magistrate Judge
informed counsel for both parties that she understood that the parties had agreed “to
the content of the IEP,” again with the exception of who the teacher should be.
Birminghams’ App. 16. Judge Waters reiterated this understanding of the situation
in his order directing the parties to file evidence supporting their teacher selection.

                                           -6-
At none of these points did the Birminghams object to these statements or express any
disagreement about the length and content of the IEP.

       Therefore, we agree with the District Court that the objections to the IEP are
not timely. These objections appear to have materialized only upon the District
Court’s resolution of the teacher-selection issue against the Birminghams. The
Birminghams may not rescind all prior statements, especially those repeatedly made
to the District Court, because they do not like the District Court’s decision on a
related issue. The IEP plan as approved by the District Court is affirmed.

       We note, however, that at the oral argument in this case counsel for the school
district unconditionally undertook to provide educational services to Brenda for three
years. We accept this assurance, and direct that it be made part of the District Court’s
order to be entered on remand.

       The Birminghams do not directly challenge the District Court’s decision that
the school’s special education teacher is qualified and should deliver the
compensatory education. They do, however, request that this Court order Brenda’s
education be provided by a private organization. However, the Birminghams do not
supply this Court with any evidence that the school’s special education teacher is not
qualified. School districts are not required to pay for private placements if they can
themselves provide the educational services necessary to give a disabled student a
free and appropriate public education. See 20 U.S.C. § 1412(a)(10)(C)(i). The
District Court correctly resolved this dispute. We affirm in all respects the IEP
approved by the District Court, except that the defendant’s position with respect to
the three-year duration of the plan is accepted.

       In sum, we affirm the District Court’s award of attorneys’ fees. We also affirm
its orders concerning Brenda’s IEP plan. The District Court approved a plan of
compensatory education sufficient to remedy the violation we identified in our earlier

                                          -7-
opinion. The Birminghams can, of course, continue to refuse the school district’s
educational services. That is their right. However, if and when Brenda begins
receiving compensatory education from the school district, we trust that the parties
will evaluate the IEP periodically as required by the IDEA, see 20 U.S.C.
§ 1414(d)(4)(A)(i), and cooperate to resolve any new issues that arise in the course
of providing Brenda with educational services. On remand, the District Court is
directed to enter an order approving the IEP submitted by the school district,
providing, however, that its duration shall be three years.

      It is so ordered.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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