IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50965

GARY G., as next friend of G.G.,

Plaintiff - Appellee

v.

EL PASO INDEPENDENT SCHOOL DISTRICT,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

El Paso Independent School District (EPISD) contests attorney’s fees

awarded Gary G., as next friend of G.G., under the Individuals with Disabilities

Education Act (IDEA), Pub. L. No. 108-446, § 615, 118 Stat. 2647, 2715-31, as

amended, 20 U.S.C. § 1415 (2004). In doing so, the district court ruled Gary G.

was an IDEA prevailing party and entitled to $44,572 in fees because, before

filing this action, he received a favorable special-education administrative order,

following a due-process hearing. Prior to that hearing, however, he rejected

EPISD’s settlement offer (which did not include attorney’s fees) and, through

that hearing and this litigation, received less relief than provided by that offer.

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2011

Lyle W. Cayce

Clerk

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Primarily at issue are: whether Gary G. is a prevailing party; and, even

if so, whether he is entitled to a fees award. Fees awarded for work performed

by Gary G.’s attorney through the date of that offer are AFFIRMED; for

subsequent to that date, VACATED.

I.

G.G. is an EPISD student with special-educational needs. In August 2003,

EPISD’s admission, review, and dismissal committee (ARDC) determined he was

entitled to 60 minutes of speech therapy per week. He did not receive the full

amount of that therapy, however, during, inter alia, the 2004-05 and 2005-06

school years (first and second-grade years). In that regard, he was deprived of

17.83 hours for the first year; 19.55, for the second.

Gary G. contacted EPISD by telephone on 6 September 2006 with concerns

regarding G.G.’s individual educational program (IEP) and his not receiving the

required therapy. Two days later, Gary G. attended an ARDC meeting to review

G.G.’s IEP and expressed concerns that his IEPs from previous schools were

improperly altered.

Regarding these concerns, Gary G. first conferred with his attorney that

29 August. Through 12 September, his attorney expended 13.8 hours reviewing

EPISD documents, researching IDEA, and drafting an administrative dueprocess complaint.

By hand-delivered 12 September 2006 letter, EPISD admitted to Gary G.

its failure to provide G.G. with the full amount of therapy required by his IEP

for, inter alia, the 2004-05 and 2005-06 school years and offered, in settlement,

56.5 hours of compensatory therapy, with progressive verification logs. The offer

did not include attorney’s fees. Gary G. rejected it.

The day after it made the offer, EPISD reiterated it to Gary G. at a reviewof-existing-evaluation-data meeting with the ARDC. It was again rejected.

Later that 13 September, Gary G. filed the above-described complaint with

the Texas Education Agency, asserting EPISD had deprived G.G. of a free

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appropriate public education (FAPE) and requesting a due-process hearing. On

18 September, Gary G.’s attorney informed EPISD that communications to Gary

G. were to be made through that attorney.

A week later, in response to the due-process-hearing request, EPISD

reaffirmed its 12 September settlement offer. This reaffirmation agreed to

provide all requested relief.

On 26 September, the parties held a resolution meeting, at which, after

EPISD reiterated the settlement offer, Gary G.’s attorney inquired about

attorney’s fees. He was informed they were not justified because the written

offer had been made before both the due-process-hearing request and EPISD’s

being notified he was Gary G.’s attorney. That attorney did not: respond to the

fee explanation; provide EPISD with a fee demand; inform EPISD his client had

incurred attorney’s fees prior to the 12 September offer; or assert he began

representing Gary G. prior to then. The parties did not reach settlement at the

resolution meeting.

The due-process hearing was held on 1-2 November before a special

education hearing officer (SEHO), who, that 12 December, found EPISD had

denied G.G. a FAPE. Among other things, the SEHO ruled: Texas’ one-year

statute of limitations for requesting special-education due-process hearings

barred Gary G.’s claim for the 2004-05 school year, and no actions by EPISD

warranted tolling that limitations period; and EPISD was to provide 19.55 hours

of speech services to compensate for the 2005-06 school year, as well as provide

written logs to Gary G. reflecting compliance.

On 9 March 2007, Gary G. filed this action on behalf of G.G., challenging

the SEHO’s limitations ruling and, pursuant to 20 U.S.C. § 1415, seeking

attorney’s fees as a prevailing party. In response, EPISD: challenged both the

SEHO’s jurisdiction and the finding that it had deprived G.G. a FAPE; denied

Gary G.’s entitlement to attorney’s fees; and requested them.

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That December, the district court: dismissed, without prejudice, EPISD’s

fees claim; held Gary G.’s fees claim in abeyance; and referred the parties’

challenges to the SEHO’s decision to a magistrate judge for a report and

recommendation. In September 2008, that report and recommendation

provided: EPISD’s jurisdictional challenge should be dismissed; the SEHO’s

limitations decision should be affirmed; and Gary G. should be an IDEA

prevailing party because the SEHO ordered relief materially changing the legal

relationship between Gary G. and EPISD.

Later that month, the district court adopted the report and

recommendation. It referred Gary G.’s fees request to the magistrate judge for

a report and recommendation.

In that regard, Gary G.’s attorney requested a fees award in accordance

with the lodestar method, stating $235.00 and $260.00 were reasonable hourly

rates, respectively, for the administrative proceeding and this action. Gary G.’s

attorney claimed 86 hours’ work for the former; 140.6, for the latter.

Accordingly, Gary G. requested a total of $56,556.00. EPISD responded, inter

alia, that Gary G. was not entitled to attorney’s fees because: the relief received

was less favorable than EPISD had offered; and he had protracted the litigation.

In September 2009, the magistrate judge recommended, inter alia:

although EPISD had offered a settlement agreement prior to the administrative

proceeding, it would have been unenforceable; Gary G. did not unreasonably

protract litigation because EPISD’s offer did not include attorney’s fees and

required him to dismiss all of his claims with prejudice; Gary G. obtained only

limited success because he both lost his challenge to the 2004-05 school-year

claim’s being time-barred and was awarded a lesser amount of compensatory

hours than had been offered by EPISD; and, therefore, Gary G. should receive

only 50 percent of the requested fees: $28,278.00.

Later that month, the district court adopted those recommendations in

part and ruled: Gary G. is a prevailing party because he secured a procedural

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judgment and judicial imprimatur; he did not unreasonably protract the

litigation because he was justified in rejecting EPISD’s settlement offer lacking

attorney’s fees; but, an amount less than that requested was warranted because

Gary G. was only partially successful, due to his failed challenge for the 2004-05

school year. As a result, the court awarded fees for the total hours expended for

the administrative proceeding, but it reduced the hours expended for this action

by one-third. Accordingly, Gary G. was awarded $44,572.00.

II.

Gary G. has not cross-appealed. And, many of the issues at hand,

including justiciability, were resolved approximately a year ago by El Paso

Independent School District v. Richard R., 591 F.3d 417 (5th Cir. 2009), cert.

denied, 130 S. Ct. 3467 (2010). Also at issue are: whether a party who rejects

a settlement offer and obtains from either an administrative hearing officer or

the district court no more educational relief than that offered by the settlement

is an IDEA “prevailing party” for attorney’s fees purposes; and, even if so,

whether that prevailing party, if offered all requested educational relief, but not

attorney’s fees, is not substantially justified in rejecting that offer or

unreasonably protracts final resolution of the controversy, requiring part, or all,

of the requested fees being denied.

Before turning to the issues, it bears noting that Gary G.’s attorney and

EPISD have been at odds in several actions, including Richard R. This

litigation, most especially this matter’s not being resolved following Richard R.’s

being rendered approximately a year ago and only a few months after the fees

award at issue, is a classic example of wasted time, effort, and scarce financial

and judicial resources. Perhaps most important, the manner in which this

proceeding has been conducted, at different times by each party following the 12

September 2006 settlement offer, runs contrary to IDEA’s purposes.

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A.

EPISD’s justiciability claims are nearly identical to its claims rejected

recently in both Richard R. and A.O. v. El Paso Independent School District, 368

F. App’x 539 (5th Cir. 2010). Matters of justiciability are, of course, reviewed de

novo. E.g., Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir.

2009); Victor v. Grand Casino-Coushatta, 359 F.3d 782, 783 n.3 (5th Cir. 2004).

In Richard R. and A.O., as here, EPISD contended plaintiff did not present

a justiciable case or controversy because it had offered plaintiff “all requested

relief” before administrative proceedings or litigation ensued. See A.O., 368 F.

App’x at 540-41; Richard R., 591 F.3d at 423 n.5. In A.O. our court held, albeit

in an unpublished opinion, that EPISD’s pre-hearing settlement offer did not

deprive either the hearing officer or the district court of subject-matter

jurisdiction. 368 F. App’x at 541. In Richard R., our court ruled: because

EPISD rejected plaintiff’s offer for an agreed order, claiming disputed issues,

there was a justiciable controversy. 591 F.3d at 423 n.5.

Our court held jurisdiction present in both A.O. and Richard R. where

EPISD had offered “‘all requested educational relief and reasonable attorney’s

fees, leaving absolutely no need to continue litigating’”. 368 F. App’x at 540

(quoting 591 F.3d at 430). “The IDEA itself therefore presumes that a

controversy will remain justiciable even though a school district offers full relief

in a settlement offer.” 368 F. App’x at 541 n.4.

Here, EPISD’s offer did not include attorney’s fees. Even if it was for “all

requested relief”, Gary G.’s rejecting it did not render this action non-justiciable.

B.

To receive attorney’s fees under IDEA, the requesting party must be a

“prevailing party”. See 20 U.S.C. § 1415(i)(3)(B)(i); see also Jason D.W. v.

Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998). Pursuant to

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health &

Human Resources, 532 U.S. 598 (2001), “whether a party is a prevailing party

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‘is a legal question subject to de novo review’”. Richard R., 591 F.3d at 422-23

(quoting Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005)).

Left unresolved by Richard R. is “whether a party who rejects a settlement

offer and obtains from an administrative hearing officer or the district court no

more educational benefit than the settlement offered is technically a ‘prevailing

party’”. Id. at 425. For the following reasons, we join three of our sister circuits

in holding such a party has that status.

As provided in Richard R., to achieve prevailing-party status, a party

must attain both: a remedy that alters the legal relationship between the

parties and fosters IDEA’s purposes; and “some judicial imprimatur on a

material alteration of the legal relationship”. Id. at 421-22. For the latter,

Richard R. held: “An administrative hearing officer’s order provides the

requisite ‘judicial imprimatur’ for a party to be considered a ‘prevailing party’ for

attorney’s fee purposes, despite the fact that the administrative hearing officer

does not have the authority to award attorney’s fees”. Id. at 422 n.4.

In contending Gary G. is not a prevailing party, EPISD maintains: the

SEHO’s order did not alter the legal relationship between it and Gary G.; and

it did not promote IDEA’s purposes because Gary G. obtained less relief from the

order than he would have from EPISD’s offer. Gary G. counters that order did

alter that legal relationship because: it made the grant of compensatory speech

services enforceable, and it fostered IDEA’s purposes by enabling G.G. to receive

the FAPE he had been otherwise denied.

IDEA provides that a party may not recover attorneys’ fees for services

performed subsequent to a written settlement offer being made, if the relief

obtained is not more favorable than that offer. 20 U.S.C. § 1415(i)(3)(D)(i). In

Richard R., our court ruled that this provision “tacitly assumes that a party may

reject such an offer and nevertheless attain prevailing party status: the statute

permits an award of attorney’s fees for work performed prior to the written offer

of settlement, and prevailing party status is a predicate for any such award”.

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591 F.3d at 424 (emphasis in original); see 20 U.S.C. § 1415(i)(3)(B)(i). The D.C.,

Third, and Seventh Circuits have held a party who rejects a settlement offer and

later obtains no more than what was offered “still ‘prevails’ by obtaining

judicially sanctioned relief”. Richard R., 591 F.3d at 424; see Alegria ex rel.

Alegria v. District of Columbia, 391 F.3d 262, 267 (D.C. Cir. 2004); T.D. v.

LaGrange Sch. Dist. No. 102, 349 F.3d 469, 476 (7th Cir. 2003); John T. ex rel

Paul T. v. Delaware County Intermediate Unit, 318 F.3d 545, 557 (3rd Cir. 2003).

In this regard, as recognized in Richard R., our court has held previously

that parties who extend litigation may be denied prevailing-party status. 591

F.3d at 425. In Michael T., an unpublished opinion, our court ruled: “we cannot

say that the district court clearly erred in determining that the purposes of the

IDEA are not fostered by encouraging parents of potentially disabled children

to withhold consent to an initial assessment in order to obtain prevailing party

status”. Michael T. v. El Paso Indep. Sch. Dist., 37 F. App’x 714, 714 (5th Cir.

2002).

As noted in Michael T., IDEA’s purposes are not fostered by withholding

consent to a reasonable settlement solely in order to obtain attorney’s fees. As

discussed above, however, it is the remedy that must foster IDEA’s purposes.

See Richard R., 591 F.3d at 421-22 (noting the obtained remedy must foster

IDEA’s purposes). Although Michael T. is persuasive, the primary reason our

court there affirmed the denial of attorney’s fees was because of the “clear error”

standard of review, which no longer applies post-Buckhannon, and because our

court used the term “prevailing party” as being synonymous with “attorney’s

fees”, which is not always the case. See 37 F. App’x at 714.

The SEHO’s order, the requisite judicial imprimatur, both altered the legal

relationship between the parties and fostered IDEA’s purposes by ensuring G.G.

will receive a FAPE. Of course, had the settlement offer been accepted, it would

have done the same, but that is not the issue. In short, although EPISD is

correct that Gary G. obtained less relief from the order than he would have from

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the settlement offer, that does not prevent his being a “prevailing party” for

IDEA purposes. But, whether he, as a prevailing party, is entitled to attorney’s

fees is a separate question.

C.

“A finding that a party is a prevailing party only makes him eligible to

receive attorneys’ fees under the IDEA; it does not automatically entitle him to

recover the full amount that he spent on legal representation.” Jason D.W., 158

F.3d at 209 (emphasis added). A fees award is reviewed for abuse of discretion,

with the underlying factual findings being reviewed only for clear error. Id. at

208.

At issue is whether a parent who rejects a settlement offer that includes

all requested educational relief, but not attorney’s fees, is substantially justified

in, or unreasonably protracts the final resolution of the controversy by, rejecting

it. Along that line, IDEA provides through the above-referenced

§ 1415(i)(3)(D)(i):

Attorneys’ fees may not be awarded . . . in any action or

proceeding under this section for services performed

subsequent to the time of a written offer of settlement to

a parent if . . . the offer is made . . . in the case of an

administrative proceeding, at any time more than 10

days before the proceeding begins; . . . the offer is not

accepted within 10 days; and . . . the court or

administrative hearing officer finds that the relief

finally obtained by the parents is not more favorable to

the parents than the offer of settlement.

20 U.S.C. § 1415(i)(3)(D)(i) (emphasis added).

1.

Gary G. maintains the 12 September 2006 settlement offer was not valid

because no IDEA proceeding was begun until his due-process complaint was filed

the next day. IDEA does not, however, require a proceeding to have begun

before a settlement offer can be made. Instead, the above-quoted

§1415(i)(3)(D)(i) applies when “the offer is made . . . in the case of an

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administrative proceeding, at any time more than 10 days before the proceeding

begins”. (Emphasis added.) In Richard R., our court held: “the district court

abused its discretion in awarding attorney’s fees to [Richard R.] for work

performed after EPISD’s written settlement offer—formalizing the offer made

at the resolution meeting—which was made the day of the resolution meeting

and more than ten days before the administrative proceeding”. 591 F.3d at 425.

EPISD’s written settlement offer, as found by the district court, was made

on 12 September; the resolution meeting was held two weeks later; and the dueprocess hearing (administrative proceeding) began on 1 November. Therefore,

the offer was made more than 10 days before the administrative proceeding

began. Accordingly, § 1415(i)(3)(D)(i), with its possible fee-bar, is in play. Next

to be considered is IDEA’s exception to that subsection.

2.

That exception provides: “Notwithstanding [§ 1415(i)(3)(D)(i)], an award

of attorneys’ fees . . . may be made to a parent who is the prevailing party and

who was substantially justified in rejecting the settlement offer.” 20 U.S.C.

§ 1415(i)(3)(E) (emphasis added). Accordingly, because the district court found

Gary G. received less educational relief (as a result of the court’s upholding the

time-bar for the 2004-05 school year) than had he accepted the offer, see the

above-quoted § 1415(i)(3)(D)(i), next at issue is whether he was “substantially

justified” in rejecting it. Gary G. contends he was because: the offer, according

to him, was not enforceable in federal court due to Texas’ sovereign immunity;

and it did not include attorney’s fees.

a.

Regarding whether the offer was enforceable in federal court, IDEA’s main

goal is for school districts and parents to work together to achieve a level of

meaningful education for students. Cypress-Fairbanks Indep. Sch. Dist. v.

Michael F., 118 F.3d 245, 247-48 (5th Cir. 1997). This goal is effectuated by

IDEA’s requirement that, “prior to the opportunity for an impartial due process

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hearing[,] . . . the local education agency shall convene a meeting with the

parents and the relevant . . . members of the . . . [educational program team] . . .”

to resolve cooperatively their differences. 20 U.S.C. § 1415(f)(1)(B)(i). This

meeting, referred to as the “resolution meeting”, was held on 26 September 2006,

as discussed supra.

For obvious reasons, IDEA ensures that settlement agreements reached

at that meeting will be enforceable: “In the case that a resolution is reached to

resolve the complaint at a . . . [resolution meeting,] . . . the parties shall execute

a legally binding agreement that is . . . enforceable in any State court of

competent jurisdiction or in a district court of the United States”. 20 U.S.C.

§ 1415(f)(1)(B)(iii)(II). Regarding the latter, IDEA provides that “district courts

of the United States shall have jurisdiction of actions brought under this section

without regard to the amount in controversy”. Id. § 1415(i)(3)(A) (referring to

20 U.S.C. § 1415 generally).

In Richard R., our court disagreed with the district court in that action

finding “EPISD’s settlement offer would not have been enforceable if it had been

reduced to an agreement”. 591 F.3d at 426. There, the district court ruled that

“Texas had not waived its immunity from suit in state court for the type of

settlement offered by EPISD, and accordingly, EPISD’s settlement offer would

not have been enforceable in state court”. Id. Our court held the district court

erred when it concluded Richard R. would not have been able to enforce the

settlement and, therefore, had an interest in continuing litigation in order to

obtain an enforceable order. Id. It “determine[d] that a settlement agreement

reached at the resolution meeting would have been enforceable in federal court”.

Id. The same situation is at hand.

The settlement offer was outstanding when Gary G. and his attorney

attended the resolution meeting two weeks later. In addition, the offer had been

reaffirmed to them in writing a day earlier and was reiterated at the meeting.

Because federal courts can enforce IDEA settlement agreements reached at a

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resolution meeting and Gary G. had the opportunity to accept the settlement

agreement at that 26 September 2006 meeting, he was not “substantially

justified” in rejecting EPISD’s settlement offer based on claimed

unenforceability. See also H.C. ex rel. L.C. v. Colton-Pierrepont Cent. Sch. Dist.,

341 F. App’x 687, 690 (2d Cir. 2009) (“Congress has expressly provided for

enforcement of IDEA settlement agreements in federal district courts when the

agreement at issue was entered into . . . at a ‘resolution session’ required by

§ 1415(f)(1)(B) . . . .”).

In Richard R., our court stated: “Here, EPISD offered [Richard R.] all of

his requested educational relief at the resolution meeting. We conclude that if

[Richard R.] had accepted EPISD’s offer, he could have enforced the resulting

settlement agreement in federal court”. 591 F.3d at 428. Although no

settlement agreement was reached at the resolution meeting in this action, it

was again offered at that meeting, and, therefore, would have been enforceable

had it been accepted.

b.

Regarding Gary G.’s contention that he was also “substantially justified”

in rejecting the offer because it did not include attorney’s fees, we do not hold

that every plaintiff rejecting a settlement offer because it does not include such

fees is, per se, not substantially justified in rejecting it. On this record, however,

and for the following reasons, Gary G. was not “substantially justified” in

rejecting the offer in order to obtain the fees.

As noted, the district court treated the 12 September offer, made more

than ten days before the due-process hearing, as a valid “written offer of

settlement”. The affidavit by Gary G.’s attorney in this action in support of the

fees request reflects that his work, prior to the resolution meeting, was limited,

inter alia, to preparation and filing of the due-process complaint and preparation

for the resolution meeting; the entries do not show the attorney and Gary G.

discussed the settlement offer. (The identical entries that come closest to

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reflecting the offer’s possibly being discussed are for before the resolution

meeting, for 21 and 26 September, for which 1.8 and 2.6 hours, respectively,

were claimed: “Conference with [Gary G.] re resolution meeting and course of

action”.)

As also noted, Gary G.’s attorney had performed only 13.8 hours of work

through the date of the settlement offer and, again, has no entry for the feerequest for time expended discussing that offer with Gary G. It is unknown

whether the 3.6 hours claimed for work on the day of the offer were expended

before it was hand delivered to Gary G. In any event, instead of accepting the

offer, having that acceptance being made enforceable two weeks later at the

resolution meeting, and paying a relatively small amount of attorney’s fees, Gary

G. caused this matter to continue for another three years (including this appeal

by EPISD, it’s now lasted over four).

Because Gary G. was not substantially justified in rejecting EPISD’s 12

September 2006 offer, the district court abused its discretion for attorney’s fees

awarded for work performed subsequent to the date it was made, as further

discussed infra. Next at issue is whether the court abused its discretion for fees

awarded for work through that offer-date.

3.

As discussed, Gary G.’s attorney expended 13.8 hours on this matter

between 29 August and 12 September 2006. Needless to say, almost all of his

work was performed subsequent to that 12 September offer-date. The district

court agreed with that attorney’s claim to a $235.00 hourly rate for the

administrative portion of this matter. One final IDEA qualification remains to

be considered in deciding whether fees should be awarded for the attorney’s

work through the offer-date.

That IDEA provision states: “whenever the court finds . . . the parent, or

the parent’s attorney, during the course of the action or proceeding,

unreasonably protracted the final resolution of the controversy . . . the court shall

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reduce, accordingly, the amount of the attorneys’ fee awarded . . . .” 20 U.S.C.

§ 1415(i)(3)(F)(i) (emphasis added). Richard R. held this provision permits

reducing a fee award for work performed prior to a settlement offer: “when a

party rejects an offer of settlement and later achieves at an administrative or

judicial proceeding no more than what was previously offered, a court may, but

is not required to, award reasonable attorney’s fees for work performed prior to

the written offer of settlement under § 1415(i)(3)(D)(i)”. 591 F.3d at 429

(emphasis in original). There, our court found Richard R., represented by the

same attorney who represents Gary G., unreasonably protracted the litigation

because EPISD “wisely included the payment of reasonable attorney’s fees to

[Richard R.] as part of its settlement offer”. Id. at 429-30. Consequently, there

was “absolutely no need to continue litigating” after the settlement offer. Id. at

430. As a result, a fee-award was not allowed for work prior to the offer. Id.

We hold the district court did not abuse its discretion in awarding Gary G.

fees incurred through the 12 September offer-date because Gary G. was not

alone in protracting this matter. EPISD played a role in doing so. We need not

discuss all the twists and turns, and resulting conduct in this proceeding, such

as the time-bar imposed by the SEHO and upheld in district court or EPISD’s

unsuccessful jurisdictional claims.

For example, as discussed, Gary G. rejected the 56.5 hours in

compensatory speech therapy offered by EPISD, and received only 19.55 hours

from the SEHO; in short, he received far less relief from the SEHO than he

would have from accepting EPISD’s offer. And, as discussed supra, he was not

“substantially justified” in rejecting that offer. On the other hand, and as

another example, EPISD omitted reasonable attorney’s fees from the settlement

offer. And, after EPISD, at the latest, became aware at the resolution meeting,

two weeks after that offer, that Gary G. had counsel, it chose not to offer fees

clearly provided for by IDEA.

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Accordingly, although it is a close question, we do not hold Gary G.

unreasonably protracted the resolution of this controversy and, therefore, hold

the district court did not abuse its discretion for fees awarded Gary G. for all of

the claimed work through the 12 September offer-date. As noted, the record

does not reflect whether the work performed by Gary G.’s attorney on the offerdate (3.6 hours preparing the administrative complaint) was after the offer was

received. Work had been performed concerning that complaint prior to that

date. The offer-date work will be included in that for which fees will be awarded.

At $235.00 per hour, with 13.8 hours having been spent on this matter through

the offer-date, Gary G. is awarded attorney’s fees of $3,243.00.

III.

For the foregoing reasons, that portion of the judgment awarding

attorney’s fees to Gary G. for work performed by his attorney through the date

of the 12 September 2006 written settlement offer is AFFIRMED; that portion

awarding fees subsequent to that date, VACATED.

AFFIRMED IN PART; VACATED IN PART

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