                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
DISTRICT OF COLUMBIA,         )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 08-2075 (RWR)
                              )
JOHN A. STRAUS, et al.,       )
                              )
          Defendants.         )
______________________________)


                         MEMORANDUM OPINION

     The District of Columbia (“DC”) has sued attorney John

Straus and his law firm, James E. Brown & Associates, in federal

court seeking $1,752.25 in attorney’s fees under the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415,

claiming that the District of Columbia Public Schools (“DCPS”)

was the prevailing party in an administrative proceeding that

Straus had needlessly brought and continued.   DC moves for

summary judgment.   Because DCPS was not a prevailing party, it is

Straus and his firm, not DC, who are entitled to judgment as a

matter of law.1

1
  It is beyond ironic that DC’s Attorney General complains with
great flourish (see Defs.’ Opp’n, Ex. 5 (Attorney General’s press
release), Exs. 2-4 (news articles)) about lawyers who help
parents secure disabled children’s rights when his client, the
DCPS, has been found repeatedly in this court to have violated
children’s rights under the IDEA. See, e.g., Calloway v.
District of Columbia, 216 F.3d 1, 3 (D.C. Cir. 2000) (noting that
DCPS’ failure to meet its IDEA obligations was “a fact no one
disputes”); N.G. v. District of Columbia, 556 F. Supp. 2d 11, 37
(D.D.C. 2008) (holding that DCPS violated the IDEA in “multiple
                                -2-

                            BACKGROUND

     Straus represented a child with special educational needs

who was enrolled in a DC public high school.   A DCPS

multidisciplinary team convened on June 5, 2008 referred the

child to DCPS for a psychiatric evaluation.    On August 15, 2008,

Straus filed an administrative due process complaint on behalf of

the child and his legal guardian because DCPS had not conducted

the evaluation.

     The sole issue presented in the administrative complaint was

DCPS’ failure to conduct the evaluation.   As relief, the

complaint sought to have DCPS fund an independent evaluation.2

Three business days after Straus filed the complaint, DCPS

authorized Straus to obtain an independent evaluation at DCPS’

expense.   A hearing officer later dismissed the complaint with

prejudice since DCPS’ authorization mooted the sole issue.   The

hearing officer added his conclusions that Straus had filed the


ways”); Alfono v. District of Columbia, 422 F. Supp. 2d 1, 5-8
(D.D.C. 2006) (granting the plaintiff’s motion for summary
judgment because DCPS failed to complete the child’s
individualized educational plan before the start of the school
year); Blackman v. District of Columbia, 185 F.R.D. 4, 7 (D.D.C.
1999) (recounting “the serious physical, emotional and
educational difficulties that the plaintiffs face[d] as a result
of [DC’s] failure to comply with the IDEA”). It is particularly
unclear how the Attorney General’s choice to sue in federal court
to recover $1,752.25, and not sue in the more streamlined and far
less costly Small Claims Branch of our D.C. Superior Court,
furthers his interest in saving taxpayer money.
2
  Other relief sought included attorney’s fees and costs, and
designation of Straus’ client as the prevailing party.
                                 -3-

complaint without foundation and had groundlessly maintained the

litigation after it became moot.    DC moves for summary judgment.

                            DISCUSSION

     Summary judgment may be granted only where “the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of

law.”   Fed. R. Civ. P. 56(c).   The relevant inquiry “is the

threshold inquiry of determining whether there is a need for a

trial -- whether, in other words, there are any genuine factual

issues that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either

party.”   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986).

     The IDEA permits a court, in its discretion, to award

attorney’s fees

     to a prevailing party who is a State educational agency
     or local educational agency against the attorney of a
     parent who files a complaint or subsequent cause of
     action that is frivolous, unreasonable, or without
     foundation, or against the attorney of a parent who
     continued to litigate after the litigation clearly
     became frivolous, unreasonable, or without foundation.

20 U.S.C. § 1415(i)(3)(B)(i)(II).      DC argues that there are no

material facts in dispute and that it is entitled to an award of

attorney’s fees against Straus and his firm as a matter of law.

It claims that “DCPS was plainly the prevailing party” given that
                                -4-

the hearing officer dismissed the complaint (Pl.’s Mem. in Supp.

of Mot. for Summ. J. (“Pl.’s Mem.”) at 10), and that the hearing

officer’s added conclusions that Straus needlessly filed and

maintained the complaint are entitled to res judicata effect.

(Id. at 9.)

      DC’s assertion that the hearing officer’s gratuitous

conclusions are binding upon this court is unavailing.   Whether

Straus needlessly filed or maintained the administrative

litigation arguably was not an issue presented in the complaint

or litigated by the parties.   Although the administrative

complaint’s seventeenth of seventeen requests for relief that DC

says Straus extruded from DCPS’s alleged violation was that

Straus’s client be found to be a prevailing party (Pl.’s Mem. at

5), the only issue before the hearing officer, as he made clear

(Pl.’s Mem., Ex. C, Hearing Officer’s Decision at 3 ¶ 1) and as

DC concedes (Pl.’s Mem. at 5-6, 16), was “whether . . . DCPS

failed to conduct a psychiatric evaluation.”   (Defs.’ Opp’n at

7.)   In any event, as DC also concedes (Pl.’s Mem. at 10), it is

the district court in an action such as this, and not the hearing

officer in the administrative proceeding, which determines

prevailing party status for purposes of awarding attorney’s fees

under the IDEA.   See Artis ex rel. S.A. v. District of Columbia,

543 F. Supp. 2d 15, 22 (D.D.C. 2008) (holding that “[a]lthough a

hearing officer may make a prevailing party determination, it is
                                 -5-

in the province of the district court to make the ultimate

decision as to who prevailed in an IDEA action” for the purpose

of awarding attorney’s fees); T.S. ex rel. Skrine v. District of

Columbia, Civil Action No. 05-861 (HHK), 2007 WL 915227, at *4

(D.D.C. Mar. 27, 2007) (“The fact that a hearing officer has made

a finding on the issue [of attorney’s fees], or has failed to

make such a finding, is not controlling.”).

     More importantly, however, DC was not a prevailing party in

the administrative proceeding.   In Buckhannon Board & Care Home,

Inc. v. West Virginia Department of Health and Human Resources,

532 U.S. 598 (2001), the Supreme Court concluded that a

prevailing party is one who obtains a “judicially sanctioned

change in the legal relationship of the parties.”3   Id. at 605.

“Buckhannon rejected the catalyst theory under which . . . ‘a

plaintiff is a ‘prevailing party’ if it achieves the desired

result because the lawsuit brought about a voluntary change in

the defendant’s conduct[.]’”   Davy v. CIA, 456 F.3d 162, 164

(D.C. Cir. 2006) (quoting Buckhannon, 532 U.S. at 601-02).

“Instead, the Court held [that] a plaintiff is a prevailing party

only if he has ‘received a judgment on the merits. . . .   Thus, a

defendant’s ‘voluntary change in conduct, although perhaps

accomplishing what the plaintiffs sought to achieve by the

3
  When applying the Buckhannon definition of a “prevailing party”
to IDEA administrative proceedings, relief provided by a hearing
officer serves as “judicially sanctioned” relief. See T.S. ex
rel. Skrine, 2007 WL 915227, at *4.
                                 -6-

lawsuit, lacks the necessary judicial imprimatur on the change.’”

Id. (quoting Buckhannon, 532 U.S. at 605 (emphasis in original)).

     Reported IDEA cases in this circuit decided after Buckhannon

have assessed whether parent plaintiffs are prevailing parties

entitled to attorneys fees.    The court of appeals has concluded

that “[u]nder Buckhannon it is clear that [an IDEA] plaintiff

‘prevails’ only upon obtaining a judicial remedy that vindicates

its claim of right.”   District of Columbia v. Jeppsen, 514 F.3d

1287, 1290 (D.C. Cir. 2008).   Likewise, at least one three-prong

test has emerged in the district court: “[t]o obtain ‘prevailing

party’ status, the plaintiff must show first that there was a

court-ordered change in the legal relationship between the

plaintiff and the defendant; second, that the judgment was

rendered in the claimant’s favor; and third, that the claimant

was not a prevailing party merely by virtue of having acquired a

judicial pronouncement rather than judicial relief.”   Robinson v.

District of Columbia, Civil Action No. 06-1253 (RCL), 2007 WL

2257326, at *4 (D.D.C. Aug. 2, 2007).

     However, the D.C. Circuit has not ruled on what the proper

test is to determine whether DCPS as a defendant in an IDEA

administrative proceeding is a prevailing party.   While it is

clear that the statute contemplates that either side is eligible

to be a prevailing party, it is not clear that the common tests

applied to parents in IDEA cases are also fitting for the DCPS.
                                 -7-

Parents file complaints because they are seeking a judicially-

sanctioned change in the legal relationship between the child and

DCPS.   When they achieve that through a hearing officer’s

decision, they meet the first prong of the test articulated in

Robinson.   However, DCPS as a defendant cannot usually be

expected to seek such a change in defending against a complaint.

When DCPS opposes a complaint by disputing that its action or

inaction violated the IDEA, it seeks an affirmation that the

status quo complies with IDEA and a disposition reflecting that

affirmation.    Of course, DCPS might also seek some favorable

disposition on other procedural or jurisdictional grounds such as

a lack of timeliness or ripeness of a complaint, or loss of

jurisdiction if a child has relocated out of the district.    If

DCPS prevails, a sanctioned change is not what can be expected

from the hearing officer’s decision and should not be what DCPS

is required to show to qualify for prevailing party status.

     Jeppson discusses the varying post-Buckhannon tests employed

by other circuits to determine prevailing party status.    See 514

F.3d at 1290.    The First and Second Circuits require a party to

receive a favorable judgment on the merits.    See id. (citing

Torres-Negron v. J&N Records, LLC, 504 F.3d 151, 164-65 (1st Cir.

2007) and Dattner v. Conagra Foods, Inc., 458 F.3d 98, 101-02 (2d

Cir. 2006)).    On the other hand, the Tenth Circuit, citing a pre-

Buckhannon Seventh Circuit decision, decided that a defendant
                                -8-

could be a prevailing party upon obtaining a dismissal based upon

a jurisdictional ground even if the dismissal did not speak to

the merits of the plaintiff’s claim.   See id. (citing United

States ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1056-58

(10th Cir. 2004) (relying on Citizens for a Better Env’t v. Steel

Co., 230 F.3d 923 (7th Cir. 2000))).

     Whatever the proper test is or should be for whether DCPS is

a prevailing party, it cannot be that what DCPS advocates

satisfies it.   To its credit, DCPS voluntarily corrected the only

wrong complained of in the child’s due process complaint here

early on.   That should certainly entitle DCPS to avoid liability

for paying plaintiffs’ attorney’s fees.   But DCPS grabs for more.

After it successfully mooted the complaint and got the complaint

dismissed for mootness, DCPS turned around and ran into district

court claiming prevailing party status and seeking attorney’s

fees.

     Permitting a school system defendant to claim prevailing

party status because it voluntarily corrected the wrong

complained of before judgment would be a perverse result that

would stand the statute on its head.   While it could in theory

create an incentive for schools to engage in prompt corrective

action, it would punish plaintiffs who were right to complain

about the wrongs the schools committed.   Buckhannon’s conclusion

that a defendant’s voluntary conduct providing the relief sought
                                 -9-

by the plaintiff “lacks the necessary judicial imprimatur” to

permit a plaintiff to claim prevailing party status, 532 U.S. at

605, does not convey prevailing party status upon a defendant who

secures a dismissal for mootness brought on by the defendant’s

voluntary conduct providing the relief sought by the plaintiff

and ending the controversy.

     Because the administrative complaint was dismissed as moot

as a result of DC’s voluntary authorization of the requested

evaluation, DCPS was not the prevailing party and it is not

entitled to attorney’s fees under the IDEA.      Thus, DC’s motion

for summary judgment will be denied.       Furthermore, because there

are no disputed facts left to be resolved, and it is Straus and

his law firm who are entitled to judgment as a matter of law,

judgment will be entered for the defendants.      See 10A Wright,

Miller & Kane, Federal Practice & Procedure: Civil 3d § 2720

(1998) (noting that summary judgment may be granted in favor of

the nonmoving party without waiting for a cross-motion); Keh Tong

Chen v. Attorney Gen., 546 F. Supp. 1060, 1068 (D.D.C. 1982)

(“Filing of a cross-motion is not a prerequisite to the entry of

judgment for the non-moving party.”)

                              CONCLUSION

     Because DC was not a prevailing party at the administrative

level, it is not entitled to attorney’s fees under the IDEA.

Accordingly, its motion for summary judgment will be denied and
                              -10-

judgment will be entered for the defendants.   A final, appealable

order accompanies this Memorandum Opinion.

     SIGNED this 14th day of April, 2009.


                                      /s/
                              RICHARD W. ROBERTS
                              United States District Judge
