United States District Court, E.D. Virginia, Norfolk Division
Order Filed: September 16, 2014
For L.G.B, a minor, inidividually and by and through her parents, Christopher and Ginny Bobby, Christopher Bobby, individually and on behalf of their daughter, L.G.B, Ginny Bobby, individually and on behalf of their daughter, L.G.B, Plaintiffs: Kalena Cimone Marie Ek, Steven Michael Traubert, LEAD ATTORNEYS, Virginia Office for Protection and Advocacy, Richmond, VA; Kati Alison Kitts, Disability Law Center of Virginia, Richmond, VA.
For School Board of the City of Norfolk, Defendant: Derek Anthony Mungo, Office of the City Attorney, Norfolk, VA.
REBECCA BEACH SMITH, CHIEF UNITED STATES DISTRICT JUDGE.
On January 22, 2014, L.G.B., and Christopher and Ginny Bobby on behalf of L.G.B. (collectively, the " Plaintiffs" ), filed an Amended Complaint under the Individuals with Disabilities Education Act (" IDEA" ) appealing the decision of the Independent Hearing Officer (" IHO" ) that confirmed the education plans for L.G.B., a minor child who is disabled by autism. ECF No. 6. On February 4, 2014, the Defendant, the School Board of the City of Norfolk, filed an Answer. ECF No. 7. By Order of February 6, 2014, the matter, at a threshold level, was referred to Magistrate Judge Douglas E. Miller, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Federal Rule of Civil Procedure 72(b) for a Report and Recommendation (" R& R" ) based upon the administrative record in the case. ECF No. 8.
On March 28, 2014, the Plaintiffs filed a Motion for Summary Judgment, ECF No. 27, and on that same day, the Defendant filed a Cross-Motion for Summary Judgment. ECF No. 28. The Plaintiffs filed their Response on April 14, 2014. ECF No. 30. On that same day, the Defendant filed its Response. ECF No. 31. On May 2, 2014, the Magistrate Judge held a hearing on both Motions for Summary Judgment. ECF No. 33.
On May 30, 2014, the Magistrate Judge filed an R& R that recommended granting the Defendant's Motion for Summary Judgment, affirming the decision of the IHO, and denying the Plaintiffs' Motion for Summary Judgment. ECF No. 34.
By copy of the R& R, the parties were advised of their right to file written objections thereto. On June 13, 2014, the Plaintiffs filed their Objections to the Magistrate Judge's R& R. ECF No. 35. On June 26, 2014, the Defendant filed its Response to the Plaintiffs' Objections. ECF No. 37. By Final Order of July 7, 2014, the court adopted and approved the findings in the R& R. ECF NO. 38.
On July 21, 2014, the Defendant, as the prevailing party under the IDEA and pursuant to 20 U.S.C. § 1415 (i) (3) (B) (i), filed a Motion for Attorney's Fees and a Memorandum in Support. ECF Nos. 40, 41. On August 21, 2014, the Plaintiffs filed their Memorandum in Opposition. ECF No. 44. By Order of August 21, 2014, the matter was referred to Magistrate Judge Douglas E. Miller, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Federal Rule of Civil Procedure 72(b) for a Report and Recommendation (" R& R regarding Attorney's Fees" ). ECF No. 45. The Magistrate Judge filed the R& R regarding Attorney's Fees on September 16, 2014, wherein he recommended denying the Defendant's Motion for Attorney's Fees. ECF No. 46.
By copy of the R& R regarding Attorney's Fees, the parties were advised of their right to file written objections thereto. On September 30, 2014, the Defendant filed its Objections, ECF No. 47, and on October 14, 2014, the Plaintiffs filed their Reply. ECF No. 48.
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R& R to which the Defendant has specifically objected. Fed.R.Civ.P. 72(b). The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
The court, having examined the Defendant's Objections to the R& R regarding Attorney's Fees, and having made de novo findings with respect thereto, overrules the Defendant's Objections, and does hereby adopt and approve in full the findings and recommendations set forth in the Report and Recommendation of the United States Magistrate Judge filed on September 16, 2014. Accordingly, the court DENIES the Defendant's Motion for Attorney's Fees under 20 U.S.C. § 1415 (i) (3) (B) (i).
The Clerk is DIRECTED to forward a copy of this Order to counsel for the parties.
IT IS SO ORDERED.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.
This case is before the court on Defendant School Board of the City of Norfolk's (" SBCN" or the " Board" ) motion for attorneys' fees (ECF No. 40) as a prevailing defendant under the Individuals with Disabilities Education Act (" IDEA" or the " Act" ). 20 U.S.C. § 1415 (i)(3)(B)(i). The motion was referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. (ECF No. 45). For the reasons outlined below, the undersigned RECOMMENDS that SBCN's motion for attorneys' fees be DENIED.
Plaintiff, L.G.B., is a student disabled by autism. During the 2012-2013 school
year, SBCN and Plaintiffs, L.G.B. and her parents (collectively " Plaintiffs" ), attempted to accommodate L.G.B.' s special education needs through the programs at Blair Middle School. After failed attempts at agreement, SBCN recommended placement in a regional public school program for autistic students, provided by the Southeastern Cooperative Educational Programs (" SECEP" ) through a proposed individualized education program (" IEP" ). The parents refused to consent to the IEP, and SBCN eventually filed for Due Process to enforce the plan over their objections. An Independent Hearing Officer (" IHO" ) heard testimony over five days and upheld SBCN's proposed placement.
The hearing resulted in a voluminous record. It consisted of: (i) the due process hearing transcripts containing 1,155 pages of testimony from thirteen witnesses, (ii) 2,169 pages of SBCN's exhibits, (iii) a thumb drive containing SBCN's copies of audio recordings of all relevant IEP meetings convened during the 2012-2013 school year, (iv) DVD video depicting L.G.B.'s conduct in the Blair classroom, (v) approximately 191 pages of Plaintiffs' exhibits, and (vi) Plaintiffs' CD recordings of three IEP meetings. The IHO memorialized his decision in a detailed 22-page opinion.
Plaintiffs appealed the IHO's finding by filing a complaint in this court pursuant to 20 U.S.C. § 1415, and both parties filed motions for summary judgment. (ECF Nos. 27, 28). The undersigned heard argument and recommended that Plaintiffs' motion be denied and SBCN's motion be granted. (ECF Nos. 33, 34). On July 7, 2014, the District Court adopted and approved the Report and Recommendation, granted SBCN's motion for summary judgment, and denied Plaintiffs' motion for summary judgment. (ECF No. 38). As the prevailing party, SBCN timely filed this motion for an award of attorneys' fees. Fed.R.Civ.P. 54(d).
A. Attorneys' Fees under the IDEA
As a general matter, " a litigant must pay its own attorneys' fees in the absence of a statutory or enforceable contractual provision allowing attorneys' fees to be awarded to a prevailing party." E.E.O.C. v. Propak Logistics, Inc., 746 F.3d 145, 151 (4th Cir. 2014). The IDEA grants courts discretion to award reasonable attorneys' fees as part of the costs for actions brought under 20 U.S.C. § 1415. 20 U.S.C. § 1415(i)(3)(B)(i). Relevant here, the court may award 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.
Id. § 1415 (i)(3)(B)(i)(II).
While few cases define the operative language in the statute, in order to be
" frivolous, unreasonable, or without foundation," a cause of action must truly be " lacking in arguable merit" at the time it was filed. District of Columbia v. West, 699 F.Supp.2d 273, 279 (D.D.C. 2010) (quoting Sullivan v. School Bd. Of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985) (interpreting attorneys' fee provisions of Title VII and Section 1983) ) ; see also R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1126 (9th Cir. 2011) (" And the IDEA'S language granting fees to prevailing defendants is nearly identical to the standard the Supreme Court developed in Christiansburg ...