                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   DISTRICT OF COLUMBIA,

                           Plaintiff,

                         v.                                  Civil Action 09-00334 (HHK)

   CHRISTOPHER L. WEST, et al.,

                           Defendants.


                                  MEMORANDUM OPINION

       The District of Columbia (“the District”) brings this action against Christopher L. West

and James E. Brown and Associates, PLLC, (collectively, “West”) and Maria E. Blaeuer

(collectively, “defendants”), seeking $1417.50 in attorneys’ fees under a fee shifting provision of

the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1415(i)(3)(B)(i)(II).

The District claims it is entitled to an award of attorneys fees because (1) it was the prevailing

party in the administrative proceeding that defendants pursued on behalf of their client A.C., (2)

the administrative complaint defendants brought on A.C.’s behalf was unreasonable and without

foundation when filed, and (3) the litigation was pursued when the litigation clearly became

unreasonable and without foundation.
        The District and defendants have cross-moved for summary judgment.1 Upon

consideration of the motions, the oppositions thereto, and the record of this case, the Court

concludes that defendants’ motions for summary judgment [##17, 19] should be granted and the

District’s motion for summary judgment [#7] should be denied.

                                        I. BACKGROUND

A. Statutory Background

        Congress enacted the IDEA to “ensure that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and related services

designed to meet their unique needs and prepare them for further education.” 20 U.S.C.

§ 1400(d)(1)(A). To receive funding under the IDEA, States and the District of Columbia must

ensure that “[a]ll children with disabilities residing in the State . . . and who are in need of special

education and related services, are identified, located, and evaluated.” 34 C.F.R.

§ 300.111(a)(1)(i). “A free appropriate public education is available to all children with

disabilities residing in the State between the ages of 3 and 21, inclusive, including children with

disabilities who have been suspended or expelled from school.” 20 U.S.C. § 1412(a)(1)(A). The

IDEA’s free and appropriate public education (“FAPE”) provision entitles each disabled student

to an IEP and educational services tailored to the unique needs of that student. See id.


        1
          Before filing her motion for summary judgment, defendant Blaeuer filed a motion to
dismiss [#12], which D.C. moved to strike [#13] on the grounds that its filing was inconsistent
with the scheduling order in this case. In the alternative, the District argues that Blaeuer’s
motion to dismiss should be regarded as her opposition to the District’s summary judgment
motion. Blaeuer’s cross-motion for summary judgment and opposition to the District’s motion
for summary judgment [#19] both renews her motion to dismiss and incorporates it by reference.
Accordingly, the Court denies the motion to strike as moot and treats Blaeuer’s motion to dismiss
as her cross-motion for summary judgment and opposition to the District’s motion for summary
judgment.

                                                   2
§ 1414(d)(2)(A) (“At the beginning of each school year, each [State] shall have in effect, for each

child with a disability in [its] jurisdiction, an individualized education program”); 34 C.F.R.

§ 300.323(a).

       Parents who disagree with the school’s provision of a FAPE to their child may request an

administrative hearing before an impartial hearing officer. 20 U.S.C. § 1415(f)(1)(a). A decision

made by a hearing officer “shall be made on substantive grounds based on a determination of

whether the child received a free appropriate public education.” Id. § 1415(f)(3)(E). The hearing

officer’s determination may be challenged in federal district court by an “aggrieved” party. Id.

§ 1415(i)(2). The IDEA gives the court discretion to award reasonable attorneys’ fees to a

“prevailing party.” Id. § 1415(i)(3)(B).

B. Factual Background

       Defendants Christopher West and Maria E. Blaeuer are attorneys licensed to practice in

the District of Columbia, and were employed at relevant times by defendant James E. Brown &

Associates, PLLC, a law firm.2 West and Blaeuer represented A.C., who the District of

Columbia Public Schools (“DCPS”) had identified as a student with a disability. During the

2007-2008 school year, A.C. was a student at Eastern Senior High School in the District. On

March 19, 2008, defendant Blaeuer wrote a letter to Eastern’s Acting Principal and Acting

Special Education Coordinator, requesting that a Multidisciplinary Team (MDT) meeting be held

to develop an IEP for A.C. Pl.’s Mot. Summ. J. Exh. D (Letter from Blaeuer dated March 19,




       2
        Blaeuer’s employment with James E. Brown and Associates ended on September 12,
2008. Blaeuer’s Mot. Dismiss at 8 n.1.

                                                 3
2008).3 On April 1, 2008, a meeting was convened and DCPS developed an IEP. Exh. E (IEP

dated April 1, 2008). On June 6, 2008, at a meeting attended by A.C., her mother, a special

education advocate, and a special education teacher, A.C., then 18 years old, stated that she no

longer wished to attend Eastern.4 A.C. was granted a certificate of completion and, as of that

date, was no longer a DCPS student.

       Blaeuer wrote DCPS on July 30, 2008, and August 6, 2008, stating that A.C. wished to

revoke her certificate of completion and return to school. Each letter also requested that an MDT

be convened to create a new IEP. Exh. A (Letter from Blaeuer dated July 30, 2008; Letter from

Blaeuer dated August 6, 2008).

       On August 18, 2008, Blaeuer filed a due process complaint with the Student Hearing

Office of the Office of the States Superintendent of Education, on behalf of A.C. and her mother,

alleging that DCPS denied A.C. a FAPE by (1) “inappropriately exiting her from Special

Education;” (2) developing an inappropriate IEP; and (3) failing to convene an MDT at the

student’s request. Exh. A (Administrative Due Process Complaint Notice).

       On September 8, 2008, DCPS responded to the complaint, denying all allegations that

A.C. was denied a FAPE. DCPS’ answer stated that (1) A.C. no longer wished to attend school,

terminated her special education services, and had not sought reenrollment; (2) A.C.’s most

recent IEP was dated April 1, 2008, which was more recent than the one dated April 22, 2007,

referenced in the complaint; and (3) DCPS does not convene MDTs for students no longer



       3
        Unless otherwise specified, all exhibits referenced are exhibits to the District’s Motion
for Summary Judgment [#7].
       4
           The District and Blaeuer characterize this meeting as an MDT, while West states that
A.C., a special education teacher, and a special education advocate “met informally to discuss a
certificate of completion.” West’s Undisputed Facts 8. Whether this meeting was technically an
MDT is irrelevant to the motions before the Court.

                                                 4
enrolled, and Eastern’s special education coordinator would be “more than willing to convene a

MDT meeting once the student enrolls in school.” Exh. B (DCPS’ Response to Administrative

Due Process Complaint Notice at 1-2).

       On September 23, 2008, an administrative hearing was held, at which Defendant West

represented A.C. and her mother. During opening statements, West withdrew his claim that

DCPS created an inappropriate IEP, but pursued the other two claims, stating that “the remedy

that we’re seeking is that DCPS convene an MDT/IEP meeting within 10 school days to sit down

with the team and develop a new IEP, discuss and determine what testing is going to be needed

and to discuss and determine placement.” Exh. G (September 23, 2008, Hearing Transcript at 6-7).

       During his opening statement on behalf of DCPS, attorney Daniel Kim explained that

“[t]he issue is that the student is not enrolled in school. If the student enrolls in school, DCPS

would be happy to convene the MDT meeting.” Id. West indicated that according to A.C.’s

mother, she tried to enroll A.C. in school, but had been unsuccessful. Expressing concern that if

A.C. was not enrolled, he may not have jurisdiction over the case, Hearing Officer Banks

continued the hearing so that A.C. could enroll before the hearing proceeded further.

       A second due process hearing was held on October 9, 2008. At the beginning of the

hearing, West confirmed that A.C. had enrolled and was attending Eastern High School. He then

stated that the issue outstanding was that DCPS “failed to convene an MDT meeting at the request

of the student for the purposes of trying to get her back into school and to review assessments and

to determine appropriateness of . . . her IEP.” Exh. H (October 9, 2008, Hearing Transcript at 5).

In response, Kim stated that “DCPS is more than willing to convene an MDT meeting upon

parental or student request,” but that no request had been made since A.C.’s reenrollment. Id. at 6.


                                                   5
        At the hearing, A.C.’s mother, Stacy Carter, testified that A.C. left school in June because

she did not want to attend Eastern anymore. According to Carter, A.C. changed her mind in late

July and wanted to go back to school. Carter stated that she first tried to re-enroll A.C. on August

25, 2008, but was told that she “couldn’t do it.” Id. at 13. DCPS called Joe Berdin, Special

Education Coordinator at Eastern Senior High, to testify. Mr. Berdin said that neither A.C. nor

Carter had requested an MDT since A.C.’s reenrollment, but that he would be willing to convene

an MDT meeting upon request.

        On October 17, 2009, Hearing Officer Banks issued his decision, which dismissed the

complaint with prejudice. His decision read, in relevant part:

        At the hearing, there was no testimony that DCPS terminated Petitioner’s services. Rather,
        Petitioner’s mother testified that Petitioner after reach the age of majority elected to receive
        a certificate of attendance at the end of the 2007-2008 school year and to leave school.
        There was no testimony as to the inadequacy of Petitioner’s April 1, 2008 IEP. In fact,
        neither Petitioner’s counsel nor Petitioner’s mother . . . ever made reference to Petitioner’s
        IEP. And there was no testimony that Petitioner ever requested an MDT meeting. In fact,
        when the Complaint was filed on August 18, 2008, Petitioner had not yet decided to
        reenroll as a DCPS student. The Hearing Officer concludes that Petitioner has failed to
        meet her burden as to any of the allegations in the Complaint.

Exh. H (Hearing Officer’s Decision at 3).

        Regarding attorneys’ fees, Hearing Officer Banks concluded that counsel filed the

complaint without foundation and continued to litigate after it was apparent that A.C. was entitled

to no relief from the hearing officer. Specifically, the Hearing Officer Decision stated, in relevant

part:

        [B]efore the Complaint was filed, Petitioner had voluntarily withdrawn from DCPS. On
        the first hearing date, it became apparent that Petitioner had not yet reenrolled. Once she
        reenrolled, Petitioner’s counsel continued to assert that DCPS failed to convene an MDT
        meeting upon request. However, Petitioner did not testify, and, thus, never confirmed that
        she ever requested an MDT meeting. Petitioner’s mother admitted that Petitioner withdrew


                                                   6
        from DCPS in June and did not reenroll until one week before the second hearing date.
        Thus, when the Complaint was filed, Petitioner was not a DCPS student, and there was no
        testimony that an MDT meeting was requested after Petitioner reenrolled. Petitioner’s
        counsel made no reference whatsoever to the only potentially viable claim in the
        Complaint, that DCPS failed to develop an appropriate IEP. In fact, he did not even
        disclose the April 1st IEP as a proposed exhibit. Finally, Petitioner’s counsel offered no
        evidence that DCPS terminated Petitioner’s special education services.

Id. at 4 (footnote omitted). Defendants did not appeal the Hearing Officer’s Decision.

                                            II. ANALYSIS

        The IDEA provides that the court has discretion to award reasonable attorneys’ 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). “[I]t 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.” District of Columbia v. Straus, 607 F.

Supp. 2d 180, 183 (D.D.C. 2009).

        The District seeks attorney fees on both of the grounds set forth in the IDEA’s fee shifting

provision. The District argues first that defendants’ complaint was frivolous, unreasonable, and

without foundation because “Defendants filed the due process complaint after A.C. had

withdrawn from school, had a valid IEP and had failed to re-enroll in school at the time the due

process complaint was filed.” Compl. ¶ 38. The District also contends that because “Defendants

continued to litigate after DCPS informed them that A.C. had voluntarily withdrawn from school,

that she had a valid IEP dated April 1, 2008 and that even as of the October 9, 2008 hearing, A.C.

had not requested an MDT meeting, Defendants’ continued pursuit of litigation in the

administrative proceeding was frivolous, unreasonable, and/or without foundation.” Compl. ¶ 41.

                                                    7
A.      The District Is A Prevailing Party.

        The Court must first determine whether the District is a prevailing party. The District of

Columbia Circuit has articulated a three-part test for determining whether a litigant is a

“prevailing party” for purposes of the IDEA: “(1) there must be a ‘court-ordered change in the

legal relationship’ of the parties; (2) the judgment must be in favor of the party seeking the fees;

and (3) the judicial pronouncement must be accompanied by judicial relief.” District of Columbia

v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010) (quoting Thomas v. Nat'l Sci. Found., 330 F.3d 486,

492-93 (D.C. Cir. 2003)).

        Courts in this and other Circuits have determined that a Hearing Officer’s dismissal on the

merits of a due process complaint that has not been appealed warrants a finding that a state

educational agency or local educational agency is a prevailing party. District of Columbia v.

Ijeabuonwu, 631 F. Supp. 2d 101, 105 (D.D.C. 2009); see also A.R. v. N.Y. City Dep’t of

Education., 407 F. 3d 65, 76 (2nd Cir. 2005). Because Hearing Officer Banks dismissed the due

process complaint with prejudice on the merits, the Court finds that DCPS was the prevailing

party in this case.

B.      The Complaint Defendants Filed Was Not “Frivolous, Unreasonable, or Without
        Foundation” Nor Did The Litigation Become “Frivolous, Unreasonable, or Without
        Foundation.”

        The Court next considers whether the defendants “file[d] a complaint or subsequent cause

of action that is frivolous, unreasonable, or without foundation.” To make this determination, “a

district court must focus on the question whether the case is so lacking in arguable merit as to be

groundless or without foundation rather than whether the claim was ultimately successful.”

Sullivan v. School Bd. of Pinellas Co., 773 F.2d 1182, 1189 (11th Cir. 1985).



                                                  8
       The due process complaint raised three claims: DCPS denied A.C. a FAPE by (1)

inappropriately exiting her from Special Education; (2) developing an inappropriate IEP with

goals that did not fit A.C.’s present level of achievement and abilities; and (3) failing to convene

an MDT upon request to discuss her return to school. The Court addresses each claim in turn.

       The District argues that the first claim, that A.C. was not properly evaluated before she left

school and was given her certificate of completion, was frivolous, unreasonable, or without

foundation because notes from the June 6, 2008, MDT show that A.C., then 18 years old, was

“adamant about wanting to graduate” and decided to leave school, as her mother’s testimony at

October hearing confirmed. According to Blaeuer, because A.C. was not evaluated to determine

that she was no longer a child with a disability before she left school as the IDEA requires, A.C.’s

special education services were inappropriately terminated.5 The Court agrees with Blaeuer that

this was a proper claim.

       The IDEA provides that “a local educational agency shall evaluate a child with a disability

in accordance with this section before determining that the child is no longer a child with a

disability,” 20 U.S.C. § 1414(c)(5)(A), unless the child’s eligibility is being terminated “due to

graduation from secondary school with a regular diploma, or due to exceeding the age eligibility

for a free appropriate public education under State law.” 20 U.S.C. § 1414(c)(5)(B)(i); 34 C.F.R.

§ 300.305(e). The evaluation required is “a summary of the child's academic achievement and

functional performance, which shall include recommendations on how to assist the child in

meeting the child's postsecondary goals.” 20 U.S.C. § 1414(c)(5)(B)(ii); 34 C.F.R. § 300.305(e);


       5
         Defendants West and James E. Brown & Associates, PLLC argue that the complaint
was not frivolous, but focus their arguments on the claim that DCPS refused to convene an MDT
meeting.

                                                  9
see V.S. ex rel. A.O. v. Los Gatos-Saratoga Joint Union High School Dist., 484 F.3d 1230, 1234

(9th Cir. 2007) (finding that because the child “was officially classified as a ‘child with a

disability’ . . . , the school at that point, and prospectively, had only two choices: 1) provide [the

child] services in accordance with an appropriately developed IEP, . . . ; or 2) properly complete

the assessment in order to find her ineligible. 20 U.S.C. § 1414(c)(5).”). Because A.C. did not

graduate with a regular diploma or exceed the age for eligibility, the Court cannot say defendants

had no grounds for the claim that she should have received an evaluation before leaving school.

       The second claim in the due process complaint was that A.C.’s IEP, updated most recently

on August 22, 2007, was inappropriate. The District argues that this claim is frivolous because it

disregards the IEP developed on April 1, 2008. In response, Blaeuer argues that the April 1, 2008,

was invalid because it was held in the absence of A.C’s mother, which is itself a violation of the

IDEA. Although the Court notes that the alleged inadequacy of the April 1, 2008,’ IEP may have

been a more appropriate claim to raise in the due process complaint, and that the complaint could

have at least made reference to the existence of the April 1, 2008, it does not find that the claim

regarding the inadequacy of A.C’s IEP was frivolous, unreasonable, or without foundation.

       Defendants’ third claim was that DCPS denied A.C. a FAPE by failing to convene at MDT

at her request. The District maintains that this claim was baseless because at the time defendants

requested that an MDT meeting be convened, A.C. was not a DCPS student. Defendants contend

that A.C. was an entitled to an MDT even though she was not an enrolled DCPS student because

residency, not enrollment, triggers an educational agency’s obligation to provide a FAPE.

Defendants’ argument is well-taken.




                                                   10
       Under the IDEA, “the obligation to deal with a child in need of services, and to prepare an

IEP, derives from residence in the district, not from enrollment.” James ex rel. James v. Upper

Arlington City School Dist., 228 F.3d 764, 768 (6th Cir. 2000). Specifically, the “IDEA provides

that ‘[a] free appropriate public education is available to all children with disabilities residing in

the State between the ages of 3 and 21, inclusive, including children with disabilities who have

been suspended or expelled from school.’” Hawkins ex rel. D.C. v. District of Columbia, 539

F.Supp.2d 108, 115 (D.D.C. 2008) (quoting 20 U.S.C. § 1412(a)(1)(A); “It is undisputed that D.C.

is a resident of the District of Columbia, and hence, DCPS must fulfill its IDEA obligations for

this student.”). Accordingly, the Court finds that A.C’s enrollment status at the time of the MDT

requests did not render the claim regarding DCPS’ failure to convene an MDT frivolous,

unreasonable, or without foundation.

       As for the second basis for the District’s fee request, the Court finds that defendants did

not “continue[] to litigate after the litigation clearly became frivolous, unreasonable, or without

foundation.” Although defendants never presented any evidence to support the claim regarding

DCPS’ failure to evaluate A.C. before she left school and withdrew the claim that her IEP was

inappropriate, the claim that DCPS refused to convene an MDT remained viable through the

second hearing. The District argues that “Defendants’ continuing to litigate with knowledge that

A.C. left school voluntarily, that she had no re-enrolled in school until October 1, 2008[,] and that

she had not requested an MDT meeting after re-enrolling in school was improper. . .” Pl.’s Mot.

Summ. J. at 26. The Court disagrees. The District’s offer to convene an MDT meeting for A.C.

was always predicated upon her re-enrollment, a condition that was not required by the IDEA. As




                                                  11
such, A.C. was neither required to re-enroll before requesting an MDT nor required to re-request

an MDT after her re-enrollment.

       The Court finds that defendant did not file a complaint that was “frivolous, unreasonable,

or without foundation,” nor “continued to litigate after the litigation clearly became frivolous,

unreasonable, or without foundation . . . . ” The Court therefore declines, in its discretion, to

award DCPS attorneys’ fees.

                                          CONCLUSION

       For the reasons stated above, the summary judgment motion of the District [#7] is denied

and the summary judgment motion of West and James E. Brown and Associates [#17] is granted.

The District’s motion to strike Blaeuer’s motion to dismiss [#13] is denied as moot. Blaeuer’s

motion for summary judgment [#19], which is incorporated by reference in her motion to dismiss

[#12], is granted. An appropriate order accompanies this opinion.



                                                       Henry H. Kennedy, Jr.
                                                       United States District Judge




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