                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

                                                 )
                                                 )
 ERICA HENRY, et al.,
                                                 )
                                                 )
                       Plaintiffs,
                                                 )
               v.                                )     Civil Case No. 11-1293 (RJL)
                                                 )
                                                 )
 FRIENDSHIP EDISON P.C.S.,
                                                 )
                                                 )
                       Defendant.
                                          sf-
                              MEMORANDUM OPINION
                               (July1J_, 2011) [## 10, 11]

       Plaintiffs bring this action under the Individuals with Disabilities Education Act

("IDEA"), 20 U.S.C. §§ 1400- 1461, against Friendship Edison Public Charter School

("Friendship Edison"). Plaintiffs are seeking $11,342.15 in attorneys' fees incurred in

connection with an administrative due process complaint. Before the Court are the

parties' cross-motions for summary judgment. Pis.' Mot. Summ. J. ("Pis.' Mot.") [Dkt. #

10]; Def.'s Opp'n & Cross Mot. Summ. J. ("Def.'s Mot.") [Dkt. # 11]. After due

consideration of the parties' pleadings, the relevant law, and the entire record herein,

defendant's motion is GRANTED and the plaintiffs' motion is DENIED.

                                     BACKGROUND

       On January 21, 2011, plaintiff Erica Henry, on behalf of her minor child, H.H.

(together, "plaintiffs"), a student at Friendship Edison, filed an administrative due process

complaint against Friendship Edison. See generally Compl. [Dkt. # 1], Ex. A, Due

Process Complaint Notice. Plaintiff Henry claimed that Friendship Edison had

                                             )
committed six separate IDEA violations by failing to identify and evaluate H.H. as a

child with a suspected disability. !d. at 1. 1 Plaintiff proposed three forms of relief. First,

plaintiff sought declaratory relief confirming Friendship Edison's denial of a "free and

appropriate public education" ("FAPE") as to the six claimed IDEA violations. !d. at 2.

Second, plaintiff sought multiple types of injunctive relief, including requiring Friendship

Edison to fund independent evaluations for H.H., conduct an Individualized Education

Program ("IEP") meeting within five days of the final disability evaluation and develop

an Individualized Education Program ("IEP") for the child, and reimburse the plaintiffs

attorneys' fees and costs. Id. at 2-3. Finally, plaintiff requested that Friendship discuss

and determine appropriate compensatory education measures for H.H. Jd. at 3. Prior to

the administrative hearing, the parties held a resolution meeting on February 8, 2011, at

which the defendant offered to conduct certain evaluations of H.H. Compl. Ex. B,

Hearing Officer Determination 1, 8. PlaintiffHenry, however, refused to consent to the

offered evaluations, and no settlement was reached. Id. at 8.

       Subsequently, the parties participated in a March 4, 2011 due process hearing

wherein the Hearing Officer narrowed the following two issues for consideration: ( 1)

"Did [Friendship Edison] fail to evaluate the student upon the request of the parent?" and

(2) "Did [Friendship Edison] violate its child find obligations under the special education


        Specifically, plaintiffs complained that Friendship Edison had failed ( 1) to
evaluate a child with a suspected disability; (2) to timely evaluate a child with a
suspected disability; (3) to evaluate a child with suspected disability upon parental
request; (4) to timely evaluate a child with a suspected disability upon parental request;
(5) to identify, locate, and evaluate a child with a suspected disability; and (6) to timely
identify, locate, and evaluate a child with a suspected disability. Compl. Ex. A at 1.
                                              2
laws by failing to evaluate the student?" Compl. Ex. Bat 3. The Hearing Officer

concluded that the first allegation was meritless because there was no evidence that

plaintiff Henry ever requested a special education evaluation for her child. Compl. Ex. B

at 11-12. As to the second allegation, the Hearing Officer concluded that Friendship

Edison had violated its "child find" obligations under the IDEA and ordered the school to

perform a comprehensive psychological evaluation on the child and the parent to provide

the necessary consent for that evaluation. !d. at 12-18; see also 20 U.S.C. § 1412(a)(3).

However, the Hearing Officer denied all of the other requested relief, including the

plaintiffs requests for speech language and social history evaluations and for funding for

independent evaluations, and ordered plaintiff;Henry to provide the consent, previously-

denied, for the evaluation. !d. at 18.

       On July 18, 2011, plaintiffs initiated this action, seeking $11,342.15 in attorneys'

fees as prevailing party under the IDEA. Compl. 1, 3-5. The parties' cross-motions for

summary judgment are now pending before the court.

                                STANDARD OF REVIEW

       Summary judgment is appropriate "if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56( a). Therefore, the movant bears the burden, and the court will draw

"all justifiable inferences" in the favor ofthe non-moving party. Anderson V. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted). Nevertheless, the non-moving

party "may not rest upon the mere allegations or denials of his pleading, but ... must set

forth specific facts showing that there is a genuine issue for trial." !d. at 248 (internal

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quotations omitted). Factual assertions in the movant's affidavits may be accepted as true

unless the opposing party submits its own affidavits, declarations, or documentary

evidence to the contrary. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

                                           ANALYSIS

         The IDEA's primary purpose is "to ensure that all children with disabilities have

available to them a free appropriate public education." 20 U.S.C. § 1400(d)(l)(A).

School officials also have an affirmative duty under the IDEA to locate and evaluate,

within their school system, children suffering from disabilities-an obligation referred to

as "child find." 20 U.S.C. § 1412(a)(3); see also B.R. ex rel. Rempson v. District of

Columbia, 802 F. Supp. 2d 153, 160 (D.D.C. 2011). This duty is triggered by a

reasonable suspicion that a student has a disability. 20 U.S.C. § 1412(a)(3). To further

compliance with these requirements, the IDEA affords certain "guaranteed procedural

safeguards," including due process hearings,, to the parents of a disabled student who
                                               '
object to the "identification, evaluation, or educational placement of the child, or the

provision of a free appropriate public education to such child." 20 U.S.C. §§ 1415(a),

(b)( 6), ( f)(l ).

         Courts are authorized to award reasonable attorney's fees in IDEA actions to a

prevailing party who is the parent of a child with a disability. 20 U.S.C. § 1415(i)(3)(B);

see also Moore v. District of Columbia, 907 F.2d 165, 166 (D.C. Cir. 1990). To

determine whether a plaintiff is a "prevailing party" under the IDEA, the court applies a

three-part test: "(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

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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'! Sci. Found., 330

F.3d 486,492-93 (D.C. Cir. 2003). For the following reasons, the plaintiff is unable to

satisfy the test's first and third prongs, and therefore does not qualify as a prevailing party

under existing case law.

       Plaintiff argues that the she is a prevailing party because the petition resulted in a

finding that the defendant had violated its "child find" obligations under the IDEA and an

order that the defendant correct that violation by performing a psychological evaluation.

Pis.' Mot. 8; see also Compl. Ex. B. 16-18. Unfortunately for the plaintiff, however, it is

the courts, not the hearing officers, that determine prevailing party status. Artis v.

District of Columbia, 543 F. Supp. 2d 15, 22 (D.D.C. 2008). Put simply, a hearing

officer's statements are not determinative. See Bush ex rei. A,H v. District of Columbia,

579 F. Supp. 2d 22, 30 (D.D.C. 2008) (noting that a hearing officer's conclusion that a

school was a prevailing party and did not deny FAPE was not determinative). Here, the

Hearing Officer found that only one of the issues raised at the administrative hearing had

any merit. Compl. Ex. B, 10-15. Moreover, the Hearing Officer's determination as to

that issue did not actually change the parties' legal relationship because Friendship

Edison's obligation was contingent on its obtaining the parent's consent. Compl. Ex. B

18; see also Artis, 543 F. Supp. 2d at 24 (holding that hearing officer's noting the parties

agreement did not constitute a change in the parties' legal relationship). Thus, to comply

with the order, Friendship may not have had to take any action, depending on plaintiff's

action. In sum, it is impossible to conclude that the plaintiff succeeded in accomplishing
                                            ,5
a primary objective of her due process complaint. Indeed, the hearing officer ultimately

ordered only one psychological evaluation, while finding that the parent had never

requested a special education evaluation and had refused a previous evaluation offer at

the resolution meeting. Thus, plaintiff does not satisfy the first of the three requirements.

       Plaintiffs claim also fails for another reason: although the Hearing Officer

awarded plaintiff some relief, that relief is not sufficient to surpass the "technical and de

minimis" threshold required by law. See Tex. State. Teachers Ass 'n v. Garland Indep.

Sch. Dist., 489 U.S.782, 792 (1989). The only relief that plaintiff received was the order

for the comprehensive psychological examination, which, was contingent on obtaining

parental consent. Furthermore, as defendant iightly notes, the relief obtained was

equivalent to, or even less than, that offered at the resolution meeting. Def. 's Mot. 7; see

AR 355, Resolution Meeting Notes (noting that Friendship Edison offered "to develop a

student evaluation plan and conduct appropriate evaluations, including a

PsychoEducational, and a Speech and Language evaluation"). The only ascertainable

reason that those evaluations were not conducted was the plaintiff's refusal to consent to

the tests. AR 355. And, the Hearing Officer denied all of the other requested forms of

relief, including the plaintiff's requests for funding for independent evaluations. !d. at

16-18. Thus, it cannot be said that this relief is anything more than "technical and de

minimis," and the plaintiff therefore fails to satisfy the third requirement for "prevailing

party" status. See Def. 's Mot. 7-9; see also Tex. State. Teachers Ass 'n, 489 U.S. at 792. 2


2
        Even if plaintiffs were a prevailing party, any award of attorney's fees, awarded
after a review of a formal fee petition by plaintiff, would be subject to a substantial
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                                     CONCLUSION

       For all of the foregoing reasons, the Court GRANTS the defendant's Cross Motion
                                           . '
                                           '   '


for Summary Judgment[# 11] and DENIES the plaintiffs' Motion for Summary

Judgment[# 10]. An Order consistent with thts decision accompanies this Memorandum

Opinion.



                                                   United States District Judge




reduction. "[T]he degree of the plaintiffs overall success goes to the reasonableness of
the award." Tex. State Teachers Ass 'n v. Garland Indep. Sch. Dist, 489 U.S. 782, 783
( 1989). As such, courts may reduce the overall fee award to reflect the degree of success.
Hensley v. Eckerhart, 461 U.S. 424,436 (1983), abrogated on other grounds by
Gisbrecht v. Barnhart, 535 U.S. 789, 795-805 (2002). Here, the plaintiff only prevailed
on one of the two issues addressed at the hearing. Although the initial hearing request
claimed additional violations and a denial ofFAPE, the Hearing Officer noted that the
only issues to be resolved at the hearing were the alleged failure to evaluate upon parent's
request and the alleged violations ofthe school's child find obligations. Compl., Ex. B,
3. As to the first issue, the Hearing Officer found that the parent's "unequivocal
testimony" was "to the contrary" and that it is "difficult to understand why this allegation
is in the complaint." Compl. Ex. B 11-12. And, plaintiffs extremely limited success as
to the second issue has already been discussed. Moreover, the plaintiffs have not
submitted any evidence that the fees charged were reasonable or "based on rates
prevailing in the community in which the action or proceeding arose for the kind and
quality of services furnished." 20 U.S.C. § 1415(i)(3)(C). Rather, plaintiffs only
attached an invoice for $11,342.15 to their complaint. Compl., Ex. C. Thus, these fees
might be subject to additional reductions based on a comparison of prevailing market
rates.

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