precludes a settlement from conferring prevailing party status on a plaintiff. Thus, to the
extent that the benefits obtained by the Plaintiffs were not part of the IHO’s Decision and
Order, they are not considered by this Court for fee purposes.

The Plaintiffs must pass a low threshold to be the prevailing party. “[A]t a minimum,
to be considered a prevailing party . . . the plaintiff must be able to point to a resolution of
the dispute which changes the legal relationship between itself and the defendant.” Garland,
489 U.S. at 792. Relying heavily on Supreme Court precedent in the § 1988 context, the
Seventh Circuit and the lower district courts have articulated several tests for determining
whether a party is a prevailing party. For instance, in Max M. v. Ill. State Bd. of Educ. which
followed Hensley’s generous interpretation of prevailing party, the court found that a plaintiff
“need not succeed on substantially all significant issues or receive all relief originally sought
to qualify as a prevailing party.” 684 F. Supp. 514, 524 (N.D. Ill. 1988). However, where
a party obtains small, tactical victories, but loses on the main issues, he cannot be considered
a prevailing party. Jodlowski v. Valley View Cmty. Unit Sch. Dist. No. 365-U, 109 F.3d
1250, 1254 (7th Cir. 1997) (quoting Hunger v. Leininger, 15 F.3d 664, 670 (7" Cir. 1994)).
Furthermore, the district court has recognized at least in one case that “liability on the merits
and responsibility for fees go hand in hand.” Petrovich v. Consol. High School Dist. # 230,
959 F. Supp. 884, 888 (N.D. Ill. 1997) (quoting Kentucky v. Graham, 473 U.S. 159, 165
(1985)).

In Max M. v. Ill. State Board of Education, the plaintiffs presented two claims against

19


Board of Education which approved it without amendments.

VI. CONCLUSION

Plaintiffs passed the threshold of prevailing party status when the hearing officer
ordered the District to reimburse half of the cost of the NDC representative, the cost of
home-bound education before Michael was admitted to his current school, and the cost of
future tutoring services for up to an hour a week for the remainder of the school year, among
other orders. This relief was more than de minimis. Plaintiffs are awarded attorney’s fees
and costs in the amount of $18,000.00. The clerk of the court shall enter a judgment in
favor of the Plaintiffs and against the District in the amount of $18,000.00 for attorney’s

fees and costs.

SO ORDERED THIS 24" DAY OF OCTOBER, 2002.

Murtes, Kbrboes

MORTON DENLOW
United States Magistrate Judge

36


is the amount of damages awarded as compared to the amount sought. Jd. Thus, where a
party recovers only nominal damages, because he fails to prove actual monetary damages
“the only reasonable fee is usually no fee at all.” Jd, at 115.

Farrar makes it clear that the determination of whether a party is entitled to attorney’s
fees includes two distinct steps: 1) whether the party has prevailed, and 2) the degree of
success obtained. Justice O’Connor’s concurrence suggested a three-part analysis for
determining a reasonable fee: (1) the difference between the amount recovered and the
damages sought, (2) the significance of the legal issues on which the plaintiff has prevailed,
and (3) the public purpose of the litigation. Jd. at 121-22.

4. Buckhannon

Most recently, the Supreme Court held that a party can not be a prevailing party
without a court ordered change on the defendant’s behavior and rejected the catalyst theory
as a basis for recovery of attorney’s fees. Buckhannon Board and Care Home, Inc., v. West
Va. Dept. of Health and Human Resources, 532 U.S. 598, 610 (2001). Where a party files
a suit or takes other action that is a catalyst for a voluntary change by the opposing party, he
is not a prevailing party even though his actions achieved his goal. Id. at 605. Thus,
judgments on the merits and court-ordered consent decrees are the primary basis for
prevailing party status. Id. at 604.

Buckhannon arose after an operator of assisted living homes failed a state fire

inspection because its residents were not capable of “self preservation.” Jd. at 600. The

13



D&O at 33. The IHO found that the District violated the prior notice provision of the
procedure, but that the District did not deny a FAPE by its non-compliance. D&O at 33-34.
Furthermore, the IHO found that the District considered but did not accept the outside report
for a number of reasons; this failure did not constitute a denial of the parents’ ability to
participate in the formulation of aFAPE, D&O at 34. Finally, on the issue of presenting the
NDC tepresentative, the IHO found that all witnesses were credible and concluded that there
must have been a misunderstanding. She ordered the District to reimburse the Plaintiffs for
half of the expense of the representative’s presence at the meeting. D&O at 35. Thus,
although there was no finding of fault on this issue, the District was ordered to reimburse the
Plaintiffs. Jd. The Plaintiffs did experience some success on this claim.

The fourth issue is whether the District intentionally violated the mediation agreement.
Id. The THO found that the District did not violate the mediation agreement and did not
violate Illinois procedural regulations. D&O at 36.

The fifth issue was whether the District denied a FAPE by denying procedural
safeguards such as giving the parents prior written notice when it proposed or refused
changes in the evaluation or placement. D&O at 37. Plaintiffs further alleged that the
District failed to follow the IEP after the it had notice that the SPEED placement was not
adequate, and failed to reconvene the IEP at that point. /d. Finally, Plaintiffs argued the
District failed to provide appropriate home-based instruction during that time. Jd. The IHO

made a finding that the District violated the prior written notice provision and ordered the

23


instruction from Judith McCormick of the Learning Clinic. D&O at 37. Michael currently
attends the ECHO school. D&O at 38.
A. ISSUES RAISED BEFORE INDEPENDENT HEARING OFFICER.

Plaintiffs originally requested a due process hearing in June of 2000. D&O at 1. For
various reasons the hearing was not held until September and October of 2001. D&O at 3.
Plaintiffs raised eight issues before the independent hearing officer (“IHO”), principally
alleging that the District denied Michael a free appropriate public education (“FAPE”) for
various reasons. First, Plaintiffs alleged that the District denied a FAPE by failing to
evaluate the student’s unique needs after it-had notice of behaviors likely to indicate a
disability. D&O at 30. Second, The District denied a FAPE before and after the student’s
placement at Parker by failing to consider the August 1999 report recommending an
evaluation with Dr. Leventhal, by not creating an appropriate IEP, by not providing the
student with a full-day educational program at Parker, and by failing to provide a full-time
aide. D&O at 32. Third, the district violated the procedural requirements and denied a FAPE
by discounting the Neuropsychology Diagnostic Center (“NDC”) report at the May 2000 IEP
meeting, and by requiring the parents to produce an NDC representative as a prerequisite to
its consideration of the NDC report. D&O at 33. Fourth, the district intentionally violated
the mediation agreement and denied a FAPE at the August 2000 MDC by discounting the

parents’ representatives to the IEP and discounting the NDC evaluation, by refusing to

consider or address the services, program, and placement required by the mediation


recovery is low enough in relation to the demand . . . the judge may jettison the lodestar
apparatus and choose an appropriate fee using other means.” Wodziak, 169 F.3d at 487. In
Wodziak, the court ultimately held that “[a]lthough the plaintiffs were prevailing parties, the
district court readily could have concluded that the only reasonable fee was a percentage of
the recovery, as in tort litigation.” Jd. at 489. Finally, the Seventh Circuit has upheld a
district court’s reduction of attorney’s fees when the plaintiff has achieved limited success.
Connolly v. Nat'l. Sch. Bus Service, Inc., 177 F.3d 593, 598 (7" Cir. 1999). For factually or
legally similar claims the district court is permitted to look at the overall success obtained.
Id. (citing Spellan v. Bd. of Educ., 59 F.3d 642, 646 (7" Cir. 1995).

In the present case, the facts all centered around the treatment of Michael Kosswenda
by the District during a time in which both the parents and the District were unsure of his
proper diagnosis. The legal issues centered on whether the District’s actions denied a FAPE
to Michael. The claims were legally and factually related, making segregation of time spent
on unsuccessful claims difficult. This Court considers the overall success of the Plaintiffs
in the litigation.

Plaintiffs, without stating a dollar value on their original claim, indicate that they
recovered approximately 75% of their request. The District, on the other hand, suggests that
the Plaintiffs recovery was closer to 5% of what they requested. Furthermore, the Plaintiffs
suggest an inherent difficulty in placing a pecuniary value on the relief they originally

requested, but approximated the value of the services they received at $3,000.00. This Court

34


the school district: 1) the district denied a FAPE due to various deficiencies, and 2) the state
board of education’s administrative review procedures were improper. 684 F. Supp. at 523.
Most of the first claim and the entire second claim were dismissed. Jd. The court ultimately
determined, however, that the student was denied a FAPE because the district did not provide
him with psychotherapy. Jd. Accordingly, the plaintiffs recovered approximately $8,000 for
expenses incurred in obtaining psychotherapy but failed to recover other items of relief. Id.
While the plaintiffs recovery was small in light of its request, the court recognized that the
plaintiffs succeeded on one important claim and received some of the benefit they sought in
bringing out the suit. Jd. at 524. The court held that in light of Hensley, it was “compelled
to find that the [plaintiffs] are prevailing parties.” Jd. at 524.

Similar to the plaintiffs in Max M.,, Plaintiffs in this case achieved some success in
bringing this lawsuit. The IHO altered the legal relationship between the parties when she
ordered: 1) the District to reimburse the Plaintiffs for tutoring while Michael was on home-
based education; 2) the District to reimburse Plaintiffs for half of the cost of the NDC
representative’s presence at the IEP meeting; 3) the District to provide an hour of tutoring
services each week for the remainder of the school year; and 4) the District to provide
counseling and training to Plaintiffs according to its resources. Plaintiffs valued these
services at approximately $3,000.00. This relief is enough to meet the threshold of prevailing
party status. The Supreme Court in Farrar held that prevailing party status does not turn on

the magnitude of the relief obtained. 506 U.S. 103 at 114. Indeed, Farrar recovered only one

20


requested that the IHO order the District to comply with procedural safeguards regarding the
handling of educational records and the prior written notice requirement. Jd. The THO found
no evidence that procedural safeguards regarding the handling of educational records were
not followed. D&O at 42. Moreover, the prior written notice requirement was addressed in
the parent’s fifth issue, and the IHO ordered the District to develop and train its staff on the
procedural requirement. Jd. The THO did not find, however, that the failure to comply with
the requirement denied a FAPE. Jd. Third, Plaintiffs requested an order for the
reimbursement of the NDC diagnosis and for the services of the representative at the IEP
meeting. /d. The IHO found that there was no evidence to support a finding that the District
had an obligation to fund the NDC diagnosis, but in connection with the third issue discussed
above, the IHO ordered the District to reimburse Plaintiffs for half of the cost of the
representative. Id.

The fourth requested relief was reimbursement of the services of the Learning Clinic.
D&O at 43. This also was addressed in the fifth issue above and the District was ordered to
reimburse the parents for the home-based education tutor, Judith McCormick. Jd. Fifth, the
parents asked the District to provide outside social language programming. The IHO found
that the evidence did not support a finding that this was needed. Jd. Sixth, the parents
requested an order for outside social language therapy. D&O at 43-44. The IHO found that
there was no evidence to support a need for such therapy. D&O at 44. The Plaintiff next

requested a finding that Michael needs year-round social interaction and skills services. Id.

26


The first issue identified was whether the District failed to provide a FAPE to Michael
by failing to evaluate his needs after it had notice of behaviors indicating a disability. D&O
at 31. The IHO did not find a denial of a FAPE on this issue. She expressly noted that
Michael was found eligible for services and was receiving services based on his identified
needs, prior to August of 1999. Jd. The IHO further rejected the allegation the District did
not provide a complete evaluation. She found that after the multi-disciplinary conference,
the District contacted Dr. Leventhal and paid for an evaluation by him. Jd. Thus, the parents
did not prevail on the first issue.

The second issue raised was that the District denied a FAPE during and after
Michael’s placement at Parker Junior High by failing to consider an August 1999 report
recommending an evaluation by Dr. Leventhal, by failing to develop an appropriate IEP, by
failing to provide Michael with a full-day education program, and by failing to provide the
services of a full-time aide as indicted in Michael’s IEP. D&O at 32. The IHO found that
it was the parent’s whose request for a new placement (Acacia) initiated the interim
movement to Parker and that the District could not be found to have denied a FAPE when
it was accommodating the parents’ wishes. Jd. The THO further rejected the other
contentions raised in this issue. D&O at 32-33.

The third issue is whether the District denied a FAPE by violating the IEP procedures
by discounting the NDC report at the IEP meeting, and by requiring the parents to present

a representative of NDC at the IEP to interpret the report in order for it to be considered.

22


agrees that while such a valuation may be difficult, some type valuation of success is
necessary.

In Max M. and other cases, courts have granted a reasonable attorney fee reduced by
50% because of the plaintiff's partial success. Max M. v. Illinois St. Bd. of Educ., 684 F.
Supp. 514, 531 (N.D. Ill. 1988); Connolly v. Nat. Sch. Bus Serv., Inc., 177 F.3d at 598
(finding that a fifty percent reduction due to limited success was not an abuse of discretion).
Here, a fifty percent reduction in the lodestar would not provide a reasonable fee. Plaintiffs
prevailed on none of the issues regarding a denial of a FAPE and were granted relief on
fewer than half of their claims. Furthermore, in some instances the relief they were granted
was substantially reduced from what was requested. In light of the comparison of the case
presented by Plaintiffs to the recovery received, the limited public purpose of the litigation,
and minor importance of the legal issues on which the Plaintiffs prevailed, Plaintiffs are
granted a total of $18,000.00 as their reasonable attorney’s fee and costs.

Plaintiff additionally argued that pursuant to 20 U.S.C. § 1415(i)(3)(G) the Court
could not reduce the fee amount. Section 1415(i)(3)(G) provides that the award of attorney’s
fees can not be reduced when the educational agency unreasonably protracted the litigation
or the section was violated. Plaintiffs argue that the order requiring the District to develop
aprocedure on prior written notice indicated a violation of this section. This Court disagrees.
The IHO specifically found that the District’s failure on the procedure did not deny a FAPE

to Michael, and the District simply re-submitted its current procedure to the Illinois State

35


of Educ., 278 F.3d 119, 125 (2TM Cir. 2002). InJ.C., the parties reached an agreement at the
planning placement team (“PPT”) meeting (equivalent to an IEP meeting), 278 F.3d at 122,
and jointly requested a hearing for the purpose of adopting the PPT’s results into an order.
Id. The school district later changed its mind, fearing that reading the order into the hearing
officer’s record would render it liable for attorney’s fees. Jd. The parents eventually filed
an action in federal court seeking attorney’s fees. Jd. The district court determined that the
plaintiffs were prevailing parties and awarded attorney’s fees. Jd. at 123. Before the appeal
was taken to the Second Circuit, Buckhannon was decided. Id. The court noted that the
Buckhannon opinion signaled that its application beyond the ADA and FHAA context and
that Hensley held the standards “used to interpret the term ‘prevailing party’ under any given
fee-shifting statute ‘are generally applicable in all cases in which Congress has authorized
an award of fees to a prevailing party.”” J.C., 278 F.3d at 123 (quoting Hensley, 461 U.S. at
433 n.7).

The Second Circuit rejected arguments that the IDEA was special because it involved
a multi-tiered administrative process, and that rejecting the catalyst theory would encourage
parents not to settle controversies at the IEP stage. Jd. at 124. First, the court specifically
took note of the fact that the ADA, at issue in Buckhannon, also involves a multi-tiered
administrative process. Id. Second, the court recognized that the IEP is an informal process
designed for compromise, not confrontation, and that Congress, before Buckhannon,

prohibited a recovery of attorney’s fees for participation in IEP meetings. /d. (citing 20

17


statutory threshold.
Id, at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). Once the
party has reached this “threshold,” the degree of success is a crucial factor in determining
whether the fees requested are reasonable; thus, where the claims are distinct, time spent on
an unsuccessful claim should not be included. Jd. at 440. In addition, where the plaintiff
achieves only limited success, the “court should award only that amount of fees that is
reasonable in relation to the results obtained.” Id.

2. Garland

The determination of whether a party prevailed was the subject of a circuit split.
Some circuit’s required a party to succeed on a “central issue” in the litigation in order to
prevail, while others used a less rigorous standard requiring only that the party succeed on
a significant issue and recover some of the relief sought in the litigation. Tex. State Teachers
Ass'n. v. Garland Indep. Sch. Dist., 489 U.S. 782, 784 (1989). Garland rejected the “central
issue” standard and articulated a more lenient standard: “at a minimum, to be considered a
prevailing party within the meaning of § 1988, the plaintiff must be able to point to a
resolution of the dispute which changes the legal relationship between itself and the
defendant.” Jd. at 792. Furthermore, the Supreme Court held that “a prevailing party must
be one who has succeeded on any significant claim affording it some of the relief sought,
either pendente lite or at the conclusion of the litigation.” Jd. at 790-91. Therefore, success

in any part of the proceeding satisfies the requirement under this test. Finally, in articulating


and 14.8 hours for traveling in relation to the fee portion of the case. Mr. Thomas also spent
$150.00 to file the case. His total fee for services in relation to the fee petition is $7,030.00.
Mr. Thomas’ total fee for his work on the entire case is $57,350.

In addition, the time records of Mr. Thomas’ legal assistant indicate a rate of $85.00
per hour for legal services and $35.00 per hour for traveling, in addition to her out-of-pocket
expenses. Ms. Morrissy, the legal assistant, documented 192.5 hours in legal services and
thirteen hours in travel on the due process portion of the case. She also spent $268.20 in out-
of-pocket expenses such as copying. Her total fee for the due process portion of the case is
$17,085.70. She also provided services on the fee petition. Although she documented more
hours, her records indicate billing for 55.1 hours. The cost of her services on the fee petition
is $4,683.50. Thus, the total cost of Ms. Morrissy’s services for the case is $21,769.20.

The educational consultant documented 71.25 hours in services and thirteen hours in
travel time. She charges $125.00 per hour for consultation and expert services and $60.00
per hour for travel time. Afer subtracting for her undocumented time, the consultant’s fee
totaled $9,600.00 according to her time sheet.

Mr. Thomas associated with co-counsel, Ms. Bianchin. She charged only for her
services on the fee petition. According to her time records, the total time spent in services
was 60 hours and the total time in travel was six hours. Ms. Bianchin charges the same
hourly rate as Mr. Thomas. The total cost of her services was $12,600.00.

The total charge for legal fees and costs is approximately $101,319.20. In addition

32


the same teacher who completed home-bound instruction with Michael for up to one hour
per week, funded by the District. Although there was no finding of fault on the part of the
District, the Plaintiffs did receive partial benefit on five of its fourteen requested items of
relief.

To be sure, Plaintiffs’ recovery is small in comparison to their requested relief. In
total, they received partial recovery on nine of twenty-one issues and items of requested
relief, but not on their major claims. Plaintiffs suggested that the value of the services
teceived was approximately $3,000.00. Although much less than they requested, this is not
de minimis. Regarding the procedural prior written notice order, the Plaintiffs, received no
practical benefit. The District resubmitted its current policy to the Illinois State Board of
Education who approved the plan as is. Additionally, the Board did not indicate that further
staff training was necessary. Def. Ex. A. 12-15.

2. The Significance of the Legal Issues on Which the Plaintiff Prevailed

The second step in the analysis is “the significance of the legal issue on which the
plaintiff claims to have prevailed.” Farrar, 506 U.S. at 121 (O’Connor, J., concurring).
Plaintiffs argue that the relief was a substantial benefit to them. However, the IHO found no
denial of a FAPE on any issue, and no liability on the District. The IHO ordered relief that
will significantly alter Michael’s educational plan; however, because the IHO found no basis

for liability on the District’s behalf, the legal issues can not be characterized as significant.

29


for outside social language programming. Jd. Sixth, they requested an order for outside
social language therapy. D&O at 43-44, Seventh, they requested an order that Michael has
the need of year-round social interaction and skills services. D&O at 44. Eighth, Plaintiffs
requested an order for year-round social skills training and therapy. Jd. Ninth, they
requested that an IEP be convened and that the District provide full-day summer services.
D&O at 45. Tenth, they requested an order for outside parent training. Jd. Eleventh, they
requested an order for provision of outside counseling. D&O at 46. Twelfth, they requested
an order for compensatory education. Jd. Thirteenth, Plaintiffs requested an order for
appropriate related services. D&O at 47. Finally, Plaintiffs requested an order requiring the
District to convene a new IEP meeting and create a new IEP with the aid of an educational
consultant with expertise in autism. D&O at 48.

C. SUMMARY OF INDEPENDENT HEARING OFFICER’S DECISION.

The independent hearing officer ("IHO”) did not find that the District had denied the
student a FAPE on any ground alleged, D&O at 32-34, 36-39, and found no deliberate
indifference or violation of the mediation agreement. D&O at 35, 36, 39. However, the IHO
did grant the parent partial relief on several items. D&O at 35, 37, 38. Plaintiff then

petitioned this Court for attorney’s fees under the prevailing party provision of the IDEA.

III. JURISDICTION
This Court has jurisdiction to adjudicate the fee petition based on 20 U.S.C. §

1415(i)(3)(A). This subsection provides: “The district courts of the United States shall have

6


agreement. D&O at35. Furthermore, the District’s actions exhibited deliberate indifference.
Id. Fifth, the district denied a FAPE by failing to provide Plaintiffs with an opportunity to
participate in the formulation of a FAPE when it failed to provide prior written notice of
proposed or refused changes in evaluation, programming, or placement, when it failed to
follow the IEP after notice that SPEED was inappropriate, when it failed to reconvene the
IEP in response to the student’s needs, and when it failed to provide appropriate home-based
instruction. D&O at 37. Sixth, the District denied the student a FAPE in the summer of 2001
by failing to provide his parents with a response to specific proposals for additional ESY
services, by failing to inform them of the start date and duration of ESY program, and by
limiting the duration and type of extended school year (“ESY”) services after notice of the
student’s needs. D&O at 39. Seventh, the District intentionally or recklessly discriminated
against Michael because of his disability or his parents’ advocacy. Eighth, the District denied
a FAPE after receiving the NDC report by failing to provide appropriate IEPs, and
withholding special education services. D&O at 40.
B. RELIEF REQUESTED FROM INDEPENDENT HEARING OFFICER.
Plaintiffs requested fourteen items of relief. First, Plaintiffs requested a finding of
deliberate indifference. D&O at 40. Second, they requested an order for procedural
safeguards. D&O at 41. Third, they requested reimbursement for the NDC diagnosis and
charges. D&O at 42. Fourth, Plaintiffs requested reimbursement for the expenses related to

the Learning Clinic (Ms. McCormick’s services). D&O at 43. Fifth, they requested an order


U.S.C. § 1415()(3)(D){ii). Finally, the court rejected the argument that the IEP in this case
was more analogous to a consent decree than a private settlement because it is required by
statute, and thus, changes the legal relationship of the parties. Jd. at 125. The court held that
the statutory requirement only distinguishes an IEP further from a judicial decree, and it
cannot be termed an agreement with judicial sanction. Jd.; see also Akinseye v. D.C., 193 F.
Supp. 2d 134, 140 (D.D.C. 2002) (following the Second Circuit’s precedent absent precedent
from the D.C. Circuit).

Thus, precedent in this and other circuits indicates that Buckhannon is generally
applicable to fee shifting provisions and should be applied to the IDEA fee shifting provision
requiring a judicial decree on the merits or a judicially sanctioned consent decree to render
a party the prevailing party. This Court will apply Buckhannon to the case at bar.

V. DISCUSSION

The first issue is whether Plaintiffs are prevailing parties under the IDEA. IfPlaintiffs
are determined to be the prevailing party, the amount of their attorney’s fees depends
primarily on their degree of success in the litigation.

A. PLAINTIFFS ARE PREVAILING PARTIES.

Asa preliminary issue, the Court will address Buckhannon’s application to this case.
Plaintiff argues that the benefit incurred from the mediation should be considered in
determining prevailing party status. As noted earlier, this Court finds prior case law from

this district and the words of the Supreme Court persuasive and holds that Buckhannon

18


decides case based on a stipulated record the procedure is “more akin to a bench trial than
to a summary judgment ruling”). The parties have agreed to proceed in this manner and
waive their right to present oral testimony on the issues herein presented.
B. PREVAILING PARTY STATUS

In an action under the IDEA “the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs to the parents of a child with a disability who is the
prevailing party.” 20 U.S.C. § 1415()(3)(B). Congress has authorized the award of
attorney’s fees to the “prevailing party” in numerous statutes, and the Supreme Court has
interpreted these fee shifting provisions consistently. Buckhannon v. West Virginia Dept. of
Health and Human Resources, 532 U.S. 598, 602 n.4 (2001) (citing Hensley v. Eckerhart,
461 U.S. 424, 433 n.7 (1983)). The term “prevailing party” under the IDEA has the same
general meaning as under 42 U.S.C. § 1988, concerning civil rights litigation. Bd. of Educ.
of Downers Grove Grade Sch. Dist. No. 58 v. Steven L., 89 F.3d 464, 468 (7th Cir. 1996).

1. Hensley

The Supreme Court’s definition of the term “prevailing party” has evolved over the
years, and a review of the leading cases is instructive. In Hensley v. Eckerhart, the Court
recognized that the standard for determining whether a party was the prevailing party “has
been framed in various ways.” 461 U.S. 424, 433 (1983). The Court noted that

[a] typical formulation is that ‘plaintiffs may be considered prevailing parties

for attorney’s fees purposes if they succeed on any significant issue in

litigation which achieves some of the benefit the parties sought in bringing
suit.’ This is a generous formulation that brings the plaintiff only across the



district to develop a procedure and appropriately train its personnel. D&O at 30, 38. In
addition, the IHO ordered that the IEP be reconvened. D&O at 38. Finally, the IHO did not
find that the home-based instruction denied a FAPE, but that the District should pay for the
services of the tutor at the time. D&O at 37. The IHO noted that “[o]rdering the district to
pay for services is not a ‘punishment’ or a finding that the district did not provide a FAPE.”
Id. The IHO expressly mentioned that Michael was removed from school at the suggestion
of Dr. Valdivia in order to stabilize his medication. Jd. Thus, although the IHO did not find
that the District denied a FAPE during the home-based instruction time period, the Plaintiffs
did receive a benefit by being reimbursed for the tutoring services during this period, and by
having the IEP reconvened. The District’s compliance with the procedural requirements is
addressed below.

The sixth issue is whether the District denied a FAPE during the summer of 2001
when it failed to provide notice of its response to the parent’s request for an extended school
year program (“ESY”), by failing to inform the parents of the start date and duration of the
ESY program, and by failing to provide appropriate education and transportation services
during the summer. D&O at 39, The IHO found that the mother wanted a longer duration
of the ESY program and the District accommodated her request even though it felt that it was
not warranted. Jd. There was no finding of a denial of a FAPE on this issue; thus, the
Plaintiffs did not prevail on the sixth issue. Jd.

The seventh issue was whether the District intentionally or recklessly discriminated

24


Minuté Order Form (06/97)

United States District Court, Northern District of linois 0 R | G | N A L

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other

Morton Denlow than Atslged Judge

CASE NUMBER

02 C 2192 DATE 10/24/2002

CASE
TITLE

Michael Koswenda vs. Flossmoor School District No. 161

MOTION:

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

DOCKET ENTRY:

qa)
Q)
@)
@)
6)
©)
1)
(8)
9)

(10)

(1) mw

a

Filed motion of [ use listing in “Motion” box above.]

Brief in support of motion due

Answer brief to motion due__. Reply to answer briefdue__.
Ruling/Hearingon____setfor___—_at
Status hearing[held/continued to] [set for/re-set for]on____setfor__at
Pretrial conference[held/continued to] (set for/re-set for]on___—setfor__—_—at

Trial(set for/re-set for] on at
[Bench/Jury trial] [Hearing] held/continued to at

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CiLocal Rule41.1 OFRCP41(a\X1) OI FRCP41(a)(2).

ooao0ad.o aad

Hs [Other docket entry]

Plaintiffs and against the District in the amount of $18,000.00 for attomey’s fees and costs.

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff

Notified counsel by telephone,

Docketing to mail notices,

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy's
initials

DK

‘Date/time received in *
central Clerk's Office

—_—

Enter Memorandum Opinion and Order. Plaintiffs are awarded attorney’s fees
and costs in the amount of $18,000.00. The Clerk of the Court shall enter a judgment in favor of the



because the plaintiffs did not obtain the primary relief sought. Jd. at 787. Both courts
characterized the central issue as the constitutionality of the school district’s limitation of
school access to representatives during school hours. Jd. Since they did not win on this
primary issue, the teacher’s association was not the prevailing party and was not entitled to
recover its attorney’s fees.

The Supreme Court reversed and determined that the teacher’s association was the
prevailing party despite winning only on peripheral issues. Id. at 792. The Supreme Court
noted that “[t]he touchstone of the prevailing party inquiry must be the material alteration of
the legal relationship of the parties in a manner which Congress sought to promote in the fee
statute.” Id. at 792-93. Even minor relief may be the basis for an attorney’s fee award under
§ 1988, however, the success must be more than technical or de minimis. The Court
recognized, that had the association won on only the issue regarding prior approval of the
principal for meetings after school hours, its success would be characterized as de minimis
and it would not be entitled to attorney’s fees. Jd. at 792. Thus, a party need not prevail on
the primary issue in the litigation to recover attorney’s fees but must at a minimum be able
to point to a resolution of the dispute which changes the legal relationship between itself and
the defendant.

3. Farrar

Later, in Farrar v. Hobby, the Supreme Court reaffirmed its characterization of the

prevailing party inquiry. 506 U.S. 103 (1992). Farrar also dealt with an action for

11


the new test, the Court clarified its understanding of the Henlsey decision: “Hensley does
indicate that the degree of the plaintiff's success in relation to the other goals of the lawsuit
is a factor critical to the determination of the size of a reasonable fee, not eligibility for a fee
award at all.” Jd. at 790. While this creates a low threshold for prevailing party status, the
Court did indicate that purely technical or de minimis success was not sufficient to entitle a
party to a fee award. Id. at 792.

Garland arose in the context of a state and local teacher’s association’s constitutional
challenge to a school district’s prohibitions of communications between the associations and
teachers during the school day. Jd. at785. The First and Fourteenth Amendment challenges
focused on a school district regulation which prohibited employee organizations access to
the school during school hours, prohibited the use of school mail and other internal
communication systems by employee organizations, but did permit organizations access to
the school before or after school hours only with the prior request and approval of the
principal. Jd. In the district court, the plaintiffs prevailed on only the last issue: that the prior
approval of the principal for organization meetings after school hours was unconstitutionally
vague. Id, at 786.

The appellate court reversed in part, finding also that the prohibition of teacher-to-
teacher discussions of employee associations during the day and the prohibition against use
of inter-office mail was unconstitutional. The district court and Fifth Circuit held that this

partial success was not enough under the “central issue” test for prevailing party status

10


district court has discretion in this area, but should give a clear explanation for its rationale
and make it clear that it “considered the relationship between the amount of the fee awarded
and the results obtained.” Jd. at 437. In light of the factors suggested by Justice O’Connor,
the Plaintiffs are entitled to a reasonable fee in light of their limited success in the litigation.

4. Calculation of the Lodestar

The “lodestar” amount for fees is obtained by multiplying a reasonable hourly fee by
the number of hours reasonably expended on the litigation. Hensley, 461 U.S. at 433.
Although in its Motion for Summary Judgment, the District contested the $200.00 hourly fee
of Plaintiffs’ attorney, it conceded that this was a reasonable hourly rate at oral argument.
The Court agrees and finds that the rates of the Plaintiffs’ attorneys and the legal assistant
are reasonable for attorneys and legal assistants in the same geographical area with similar
experience. The District also contests the hours spent on the case by Plaintiffs’ attorney. The
District contests the total number of hours spent on the due process hearing. After a review
of the time sheets of both attorneys, the legal assistant, and the educational consultant, this
Court finds that the time is adequately recorded and reasonable in light of the factual
complexity of the issues raised in the case.

Plaintiffs attorney, Mr. Thomas, charges $200.00 per hour for legal services and
$100.00 per hour for traveling. Mr. Thomas’ time records indicate a total of 241 hours in
legal services and 21.2 hours in travel time. The total cost of his services relating to the due

process hearing is $50,320.00, In addition, Mr. Thomas recorded 37 hours in legal services

31


3. The Public Purpose of the Litigation

The third factor to consider is the public purpose of litigation. Plaintiffs argue that
the IHO’s order requiring the District to develop a procedure to comply with the prior written
notice requirement and to train its staff accordingly provides a benefit to other children
similarly situated. As discussed above, there was no practical benefit, either to the Plaintiffs
or to the public. The District superintendent simply resubmitted the current plan to the

Illinois State Board of Education which approved the plan and requested no additional

measures. Def. Ex. A 14. Furthermore, the District had already provided training on the
requirement to staff and the Board did not indicate that any more training was necessary.
Def. Ex A { 15. In the end, the District uses the same procedure it used before this action
was initiated. The fact that the IHO ordered the change, without the change actually being
implemented or required by the Illinois State Board of Education can not be characterized
as conferring any practical benefit on Plaintiffs or other children in the same situation.
The analysis under the O’Connor test reveals that the Plaintiffs’ success in the
litigation was small, but not so de minimis that they are precluded from an award of
attorney’s fees. Hensley recognized that while there is no precise formula for making the fee
determination, the “most critical factor is the degree of success obtained.” 461 U.S. 424,
436. The Court further explained that when the plaintiff has achieved partial success the
district court may attempt to identify precise hours to be eliminated or it “may simply reduce

the award to account for the limited success.” Jd. at 436-37. The Court emphasized that the

30


jurisdiction of actions brought under this section without regard to the amount in
controversy.” Federal courts have jurisdiction over independent attorney’s fees suits
resulting from an IDEA administrative proceeding. Board of Educ. of Oak Park v. Nathan
R, 199 F.3d 377, 381-82 (7" Cir, 2000) (citing Brown v. Griggsville Cmty. Unit. Sch. Dist.

No. 4, 12 F.3d 681, 683-84 (7" Cir. 1993)).

IV. LEGAL STANDARDS

A. TRIAL ON THE PAPERS.

Although originally presented as a motion for summary judgment, the parties have
agreed to proceed with a trial on the papers. Each has submitted briefs, declarations, and
exhibits, including the Decision and Order of the hearing officer which constitute the record
in this case. A district court may conduct a summary bench trial “based on the record
compiled in summary judgment proceedings” if the parties so stipulate and indicate a waiver
of a full bench trial. Acuff-Rose Music, Inc., v. Jostens, Inc., 155 F.3d 140, 142 (2nd Cir.
1998) (citing May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7" Cir.
1986). This Court has previously conducted a trial on the papers. See, e.g., Binder v. Bristol-
Myers Squibb, Co., 184 F. Supp. 2d 762 (N.D. Ill. 2001); Bosco v. Chicago Transit
Authority, 164 F. Supp. 2d 1040 (N.D. Ill. 2001); Nolan v. City of Chicago, 125 F. Supp. 2d
324 (N.D. Ill. 2000); see also, Morton Denlow, Trial on the Papers: An Alternative to Cross-
Motions for Summary Judgment, FEDERAL LAWYER, August 1999, at 30; Hess v. Hartford

Life & Accident Ins. Co., 274 F.3d 456, 461 (7" Cir. 2001) (stating that where the judge

7


dollar when he asked for seventeen million. Jd. at 107.

B. PLAINTIFFS’ RECOVERY WAS NOT DE MINIMIS AND THEY ARE
ENTITLED TO REASONABLE ATTORNEY’S FEES.

Finding Plaintiffs to be prevailing parties does not end the inquiry. Farrar made it
clear that the court must determine reasonable attorney’s fees in light of the result achieved.
In some situations, a party who has prevailed may not recover any attorney’s fees. 506 U.S.
at 115. The lodestar figure is presumed to be a reasonable fee, but a significant factor in
shifting the fee award up or down is the “results obtained.” City of Riverside v. Rivera, 477
US. 561, 562 (1986).

While Justice O’Connor’s analysis in Farrar was not specifically adopted by the
Seventh Circuit in the IDEA context, courts in the circuit have employed it and found it
useful in determining whether the prevailing party is entitled to fees. Monticello Sch, Dist.
No. 25 v. George L., 102 F.3d 895, 907 (7" Cir. 1996). Justice O’Connor suggested three
factors to consider in determining reasonable attorney’s fees: (1) the difference between the
amount recovered and the damages sought, (2) the significance of the legal issue on which
the plaintiff prevailed, and (3) the public purpose of the litigation. Farrar, 506 U.S. at 121-
22 (O’Connor, J., concurring).

1. The Difference Between the Relief Sought and the Amount Recovered

First, this Court will analyze the difference between the relief sought and the amount
recovered. The parents identified eight issues for the IHO to address and fourteen items of

requested relief. Each will be addressed in turn.

21


AO 45% ORev. SRS)Judgment in a Civil Case
United States District Court

Northern District of Illinois
Eastern Division

Michael Koswenda JUDGMENT IN A CIVIL CASE

vy. Case Number: 02 C 2192
Flossmoor School District No. 161

a Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict,

a Decision by Court. This action came to trial before the Coutt. The issues have been
tried and a decision has been rendered. :

Ir is HEREBY ORDERED AND ADJUDGED that Plaintiffs are awarded attomey’s fees and
costs in the amount of $18,000.00 and judgment is entered in favor of the Plaintiffs and against
the District in the amount of $18,000.00 for attomey’s fees and costs

Michael W. Dobbins, Clerk of Court

Date: 10/24/2002
Donna Kuempel, Beput


The IHO adopted Dr. Leventhal’s opinion that the District has an obligation to coordinate
with outside activities such as sports and other recreational activities. /d. In response, the
THO ordered that the District should research available opportunities and help find funding
sources for the parents. Id. The eighth requested form of relief was for year-round social
skills training and therapy. Jd. The IHO ordered the District to research and coordinate these
activities and identify possible funding sources, but the IHO found no duty on behalf of the
District to fund these activities. D&O at 44-45.

The ninth item of relief requested was that the District convene an IEP and that the
District provide “continuous, full-day, summer services.” D&O at 45. The IHO ordered the
reconvening of the IEP in accord with the fifth issue. The IHO recognized that Michael
would be graduating at the end of the year, and the possibility that the school would no
longer have a legal obligation to provide services to him. She ordered summer services only
to the extent provided by law and suggested that the family and the district work together to
prepare Michael for his transition to a new program. Jd. Tenth, the parents requested an
order that the District provide outside parent training. Jd. The IHO found that the need for
outside parent training was not supported by the evidence, but that the District should
develop a plan for the parents to observe the classroom techniques and spend time with the
teachers outside class discussing their techniques. D&O at 45-46. The parent’s eleventh
request was for an order that the District provide outside family counseling. D&O at 46. The

THO found that no evidence supported such a request, but to the extent that the District has

27


at SPEED, Michael’s diagnosis was obsessive compulsive disorder and learning disability.
Id.

In August 1999, Dr. Michelle Metrick recognized autistic-like behavior in Michael.
Dr. Metrick referred Michael to Dr. Bennett Leventhal whose waiting list was over a year.
While waiting to be seen be Dr. Leventhal, Michael was seen by Dr. Valerie Scaramella
Nowinski who diagnosed him with autism in November of 1999. Dr. Nowinski also referred
the parents to Dr. Juan Valdivia, a psychiatrist. Dr. Valdivia changed Michael’s diagnosis
several times from March 2000 to May 2000.

During the summer of 2000, the District and Plaintiffs met for a mediation session and
a multi-disciplinary conference (“MDC”). D&O at 35. At the MDC, the District rejected
Dr. Nowinski’s diagnosis of autism because it did not find her report acceptable. D&O at
37. The District then sought an evaluation from Dr. Leventhal. D&O at 36. The District
accepted Dr. Leventhal’s November 2000 diagnosis of autism and mild mental retardation.
Id.

In September 2000, Dr. Valdivia indicated that he did not think the SPEED school
was an appropriate placement for Michael and suggested that Michael remain on home-
bound education for four to six weeks while he stabilized with new medication. D&O at 21,
25. Michael’s parents withdrew him from SPEED in October without consulting the District.
D&O at 21. Michael remained on home-bound instruction until February 2001 when he

began attending the ECHO school. D&O at 36. During that time he received tutoring


operator received cease and desist orders, then subsequently filed suit in the district court.
Id, 600-01. The suit alleged that the “self preservation” requirement violated the Fair
Housing Amendments Act and the Americans with Disabilities Act. Jd. at 601. Some time
after the suit was filed, the state legislature eliminated the requirement from the statute and
the case was dismissed as moot. Jd. The plaintiff sought attorney’s fees under the catalyst
theory which indicates that “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.” Id.
(internal quotation omitted).

As noted above, the Court ultimately determined that this was not a valid basis for an
attorney’s fee award. In so doing, the Court held,

A defendant’s voluntary change in conduct, although perhaps accomplishing

what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial

imprimatur on the change. Our precedents thus counsel against holding that

the term “prevailing party” authorizes an award of attorney’s fees without a

corresponding alteration in the legal relationship of the parties.
Id. at 605. After Buckhannon, prevailing party status must be based on the relief sought and
recovered by judicial order, consent decree or some other judicial imprimatur.

In sum, Supreme Court precedent provides that a party may be considered prevailing
and may recover attorney’s fees even if he does not prevail on all issues or even the central
issue in the litigation. Whether a party has prevailed depends not on the magnitude of the

success, but only on a court ordered change in the relationship of the parties. The amount

of attorney’s fees a party may recover is a separate inquiry that includes a primary

14


of the parties.” Jd. (quoting Barron’s Law Dictionary, p.97 (1996)) (emphasis in original).
The court found no evidence that the hearing officer approved the mediation agreement. Id.
Furthermore, the court again rejected the argument that Buckhannon should be limited to the
ADA and FHAA contexts, because the court referred to similar fee shifting statutes including
§ 1988 throughout the opinion. Jd. Moreover, the Buckhannon opinion states that the Court
has “interpreted these fee-shifting provisions consistently ... and so approach the nearly
identical provisions at issue here.” 532 U.S. at 603 n.4. Similarly, Brandon K. agreed that
a distinction in the ADA, FHAA, and IDEA contexts was not persuasive, relying on Jose
Luis and cases from other circuits. 2001 WL 1491499 at *2 n.2.

In contrast, in 7D, the court noted significant distinctions in the text and structure of
the IDEA from that of the ADA and FHAA. 7D v. La Grange, No 98 C 2071, 2002 WL
31194701, at *3 (N.D.IIl. Sept. 26, 2002). For instance, the court noted that the IDEA,
unlike the FHAA or the ADA, refers to settlement as a basis for fees. Jd. Subsection
1415(i)(3)(@) provides for a reduction in attorney’s fees when the parents reject a reasonable
settlement offer. Jd. In addition, the IDEA provides for fees in certain instances of
mediation, and does not exclude settlement among its express instances where fees are
prohibited. Jd. Thus, the court held that once the text, structure, and legislative history of
the IDEA is compared with that of other fee shifting provisions, Buckhannon, should not be
applied to the IDEA. Jd. at *3.

The Second Circuit applies Buckhannon to the IDEA. J.C. v. Reg’l. Sch. Dist. 10 Bd.

16


2) whether the Plaintiffs’ success is purely technical or de minimis; and 3) what constitutes
a reasonable fee for the results achieved. The following constitute the Court’s findings of
fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil

Procedure.

I. BACKGROUND FACTS

Michael Koswenda is a thirteen year-old boy who experiences problems in school and
is eligible for services under the IDEA. Complaint { 3, 4. Through the spring of 1999,
Michael attended the Rush Day School when his mother, Theresa Koswenda, requested a
transfer to Acacia. D&O at 20.' An individual education plan (“TEP”) was completed in June
of 1999, and Michael transferred to Acacia on a conditional basis that summer. Jd. The
school determined almost immediately that Michael could not stay, but agreed to allow him
to attend for the duration of the summer. /d.

Faced with trying to find another school, Michael’s parents had concerns about
sending him to the St. Gerard’s / SPEED Coop school (“SPEED”); accordingly in the fall of
1999 Michael began attending half days at the Parker Junior High School. After learning
more about SPEED, Michael’s parents decided that it was an appropriate placement and
transferred him there during the 1999-2000 school year. Michael attended the SPEED

extended school year program (“ESY”) in the summer of 2000. At the time of his placement

1 D&O refers to the Decision and Order of Hearing Officer Ann Breen-Greco dated
November 26, 2001.


Copies mailed to:

Joseph Daniel Thomas
200 S. Michigan Avenue
Suite 1240

Chicago, IL 60604

(312) 296-8203

Sherri Lynn Bianchin
7302 Lakeside
Frankfort, IL 60423
(815) 469-3612

Attorneys for Plaintiff

37

Justino D. Petrarca

Kevin Bruce Gordon

SCARIANO, HIMES & PETRARCA,
180 N. Stetson

Chicago, IL 60601-6714

(312) 565-3100

Anthony Gael Scariano

Christina Sepiol

SCARIANO, ELLCH, HIMES, SRAGA, &
PETRARCA, CHTD.

1450 Aberdeen Street

Chicago Heights, IL 60411

Attorneys for Defendant


against the student because of his disability or his parent’s advocacy by repeatedly delaying
the identification and provision of services. Jd. The IHO determined that there was no
evidence of discrimination toward the student, and that there was no delay or denial of
services. Id.

The final issue was whether the District denied a FAPE because the IEP was
inappropriate and failed to respond to Michael’s needs, and because the District withheld
needed special education services that would have benefitted Michael. D&O at 40. The IHO
found that there was no denial of FAPE regarding the sufficiency of the IEP. Jd.

In sum, the IHO found no denial of a FAPE on any of the eight issues raised by the
Plaintiffs. The hearing officer, however, did grant relief on several issues including: (1)
reimbursement of half the cost of providing an NDC representative at the IEP meeting, (2)
an order to reconvene the IEP, (3) an order that the District develop a policy and train staff
on the prior written notice requirement, and (4) that the District reimburse the parents for the
cost of the home-based education tutor while Michael was on home-bound instruction. The
Plaintiffs received partial relief on four of the eight issues it raised.

In addition, the Plaintiffs requested fourteen items of relief. Each will be briefly
discussed in turn. The parents first asked for a finding that the District acted with deliberate
indifference and intentionally or recklessly violated procedural safeguards and denied a
FAPE. D&O at 40-41. The IHO found that there was no denial of a FAPE and that the

evidence did not support a finding of deliberate indifference. D&O at 40. Second, Plaintiffs

25


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MICHAEL KOSWENDA, and his )
parents and next friends, )
MATTHEW and THERESA )
KOSWENDA, )
) Case No. 02 C 2192

Plaintiffs, )

v. ) Magistrate Judge Morton Denlow
)
)
)
)
)

FLOSSMOOR SCHOOL DISTRICT
NO. 161,

DOCKETED
OCT 25 2002

Defendant.

MEM P RD.
I. INTRODUCTION

Michael Koswenda through his parents (“Plaintiffs”) initiated this federal action to
recover attorney’s fees and costs under 20 U.S.C. § 1415(i)(3)(B) as a prevailing party
arising out of an administrative proceeding brought against Flossmoor School District No.
161 (“District” or “Defendant”) under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C.A. § 1400 et seq. This case is currently before the court for decision
as a trial on the papers. Oral argument was held on October 17, 2002. The parties present
the issue of whether Plaintiffs are entitled to recover some or all of their attorney’s fees and
costs incurred in the administrative hearing. This cases raises the following issues for

decision: 1) whether Plaintiffs were prevailing parties pursuant to 20 U.S.C. § 1415(i)(3)(B);

Dio



to legal fees and the educational consultant, the Plaintiffs incurred other expert-related costs
including: (1) $375.00 for experts from the Neuropsychology Diagnostic Center, (2) $300.00
for Judy McCormick’s reading expertise, (3) $450.00 for Dr. Valdivia’s psychiatric expertise,
and (4) $300.00 for an autism expert. The total cost of this litigation is approximately
$102,744.20.

In comparison, the District’s attorneys presently maintain a $185.00 hourly rate. The
lead attorney in the case received $170.00 per hour until July 2002. The total amount
charged. to the District for legal services was $43,987.25.”

5. Reduction in Light of the Limited Success

In this case, the Plaintiffs recovery in the hearing was substantially less than what they
asked. Plaintiffs indicate that the approximate value of their recovery was $3,000.00. While
in private litigation, an award of attorney’s fees in excess of the damage award is not
considered reasonable, Cole v. Wodziak, 169 F.3d 486, 488 (7" Cir. 1999), in civil rights
cases, an attorney’s fee award “may be ‘reasonable’ even when they exceed the damages
recovered ....” Id. (citing Riverside v. Rivera, 477 U.S. 561, 581 (1986)). In Riverside, the
court specifically recognized the public purpose of the litigation in deterring unlawful police
conduct. 477 U.S. at 572. Furthermore, the Seventh Circuit has held that although a court

can not “mechanically reduce the lodestar” amount by the percentage of success, “when

? Plaintiffs contest whether the District’s attorney’s fee calculation is accurate because it
does not reflect same time period for which the Plaintiff submitted records. Deciding this issue is
not necessary to the outcome of the case, and this Court declines to address it.

33


a staff person available for such counseling, one should be provided. Jd.

The twelfth request was for the provision of compensatory education for the periods
that Michael was deprived of educational opportunity and for the time the parents were
denied the opportunity to participate in the formulation of aFAPE. D&O at 46-47. The IHO
found that the evidence did not support such a finding and found that the current educational
placement was satisfactory. D&O at 47. However, in light of the student’s short time
remaining at the current placement, the IHO found that he would benefit from tutoring by the
same teacher who provided the home-based services for an hour per week, to be funded by
the District. Jd. The thirteenth item of relief requested was for an order granting
transportation related services. Jd. The IHO found that transportation was no longer an
issue. D&O at 48. The final item of requested relief was for the IHO to order the District
to conduct an IEP meeting with a consultation of an autism expert. The IHO referred to her
earlier order that an IEP be convened, but found no further need for an autism consultant
because Dr. Leventhal indicated he is available for questions by phone.

In sum, in addition to the relief granted under the issues presented by Plaintiffs, the
parents received: (1) summer services to the extent the District is required by law to provide
them, and a suggestion that the District and family work together to transition Michael to a
new placement, (2) an order that the District research outside activities and funding for such
activities, (3) an order for in-school training with Michael’s teachers, (4) family counseling

to the extent that the District has appropriate staff available, and (5) tutoring services from

28


attorney’s fees under § 1988, after the plaintiff won a civil rights jury verdict of only one
dollar in nominal damages, but not the $17,000,000 it sought in compensatory damages. 506
U.S. 103, 107. The Farrars were not given the monetary, declaratory, or injunctive relief they
requested. Id.

The Supreme Court used a two-part analysis to determine that the Farrars were the
prevailing party, but still not entitled to recover attorney’s fees. Referring to its earlier
rulings, the Court determined that a party prevails ifhe materially alters the legal relationship
of the parties. Farrar, at 111. Furthermore, a “judgment for damages in any amount,
whether compensatory or nominal, modifies the defendant’s behavior for the plaintiffs
benefit by forcing the defendant to pay an amount of money he otherwise would not pay.”
id. at 113. Thus, prevailing party status “does not turn on the magnitude of the relief
obtained.” Jd. at 114. Under this rubric, the Court determined that the nominal damage
award was sufficient to make the Farrars the prevailing party. But this did not end the
inquiry.

The second part of the inquiry is whether the award of attorney’s fees is reasonable.
The Court relied on Hensley and other cases to affirm that a court must consider the
“relationship between the extent of success and the amount of the fee award.” Jd. at 115-16
(quoting Hensley, 461 U.S. at 438). The most critical factor in determining the
reasonableness of a fee award is the degree of success obtained. Jd. at 114 (citing Hensley,

461 U.S. at 436). In the context of private litigation for damages, the primary consideration

12


consideration of the difference in degree of the relief requested and the relief granted. In
addition, the Court should consider the significance of the legal issues on which the plaintiff
prevailed and the public purpose of the litigation.

C. |BUCKHANNON’S APPLICATION IN THE IDEA CONTEXT.

The Seventh Circuit has not addressed whether Buckhannon’s requirement of a
judicial decree either on the merits or by way of a consent decree applies to the fee shifting
provision of the IDEA. Of three district court cases in the Northern District of Illinois, two
found that the holding in Buckhannon should be applied to the IDEA, and one held that it did
not. Jose Luis R. v. Joliet Township High Sch. Dist. 204, No. 01 C 4798, 2001 WL 1000734
(N.D.IL. Aug. 29, 2001) (expanded in Jose Luis R., No. 01C 4798, 2002 WL 54544 (N.D.IIL
Jan. 15, 2002)); Brandon K. v. New Lenox Sch. Dist., No. 01 C 4625, 2001 WL 1491499
(N.D.IIL Nov. 23, 2001); but see, TD v. La Grange Sch. Dist. No. 102, No. 98 C 2071, 2002
WL 31194701 (N.D.IL. Sept. 26, 2002). In the first Jose Luis R. opinion, the court stated
that a distinction between Buckhannon and the IDEA context was not persuasive because
nothing in Buckhannon limited the holding only to the ADA and Fair Housing Amendment
Act contexts. 2001 WL 1000734, at *1. In the second opinion, the plaintiff argued that a
mediation agreement read into the record by the hearing officer should be considered a
consent decree for the purposes of determining the prevailing party. 2002 WL 54544, at *3.
A consent decree is a “contract of the parties entered upon the record with the approval and

sanction of a court of competent jurisdiction, which cannot be set aside without the consent

15