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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

D.R., individually, and through

next friend and father A.R.;

Plaintiff,

v. Case No.: 4:10cv312/MCR/WCS

FLORIDA STATE BOARD OF 

EDUCATION, DR. ERIC J. SMITH,

in his official capacity as

Florida Commissioner of Education; and

ORANGE COUNTY SCHOOL BOARD,

Defendants.

____________________________________/

ORDER

Plaintiff D.R., individually, and through next friend and father A.R. has filed suit under

the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., alleging

in the amended complaint that the Florida State Board of Education and Dr. Eric J. Smith1

(collectively the “Board of Education”) failed to provide an adequate system of procedural

rights as required by the IDEA, and that the Orange County School Board (the “School

Board”), is responsible for the plaintiff’s attorney’s fees incurred during an IDEA

administrative action. (Doc. 21.) Pending before the court are the defendants’ motions to

dismiss the amended complaint (docs. 23 & 24), which the plaintiff opposes (docs. 29, 30,

32). Having considered the motions and responses, the court finds that the motions to

dismiss should be granted for the following reasons. 

STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

Dr. Smith is sued in his official capacity as Florida Commissioner of Education

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of the claim showing that the pleader is entitled to relief;” detailed allegations are not

required. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A motion pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure seeks dismissal of the complaint for failure

to state a claim on which relief can be granted. In considering a Rule 12(b)(6) motion, the

court accepts all factual allegations of the complaint as true and construes them in the light

most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). 

The motion is properly denied if the complaint “contain[s] sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). This “plausibility

standard” requires a showing of “more than a sheer possibility” that the defendant is liable

on the claim. Id. The allegations of the complaint must set forth enough facts “to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. In other words, the

complaint must contain sufficient factual matter, accepted as true, to permit a court “to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129

S. Ct. at 1949. However, the court need not credit “[t]hreadbare recitals” of the legal

elements of a claim unsupported by plausible factual allegations because “the tenet that a

court must accept as true all of the allegations contained in a complaint is inapplicable to

legal conclusions.” Id. When deciding a motion to dismiss, “the court limits its

consideration to the pleadings and exhibits attached thereto” and incorporated into the

complaint by reference. Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342,

1352 n.7 (11th Cir. 2006) (internal marks omitted).

BACKGROUND

Some background information regarding the IDEA will be helpful to understanding

the facts. The IDEA is a comprehensive statutory scheme governing the manner in which

states and public agencies provide special education and related services to children with

disabilities. See 20 U.S.C. § 1400, et seq. Basically, the IDEA creates a federal grant

program to assist states in educating disabled children. 20 U.S.C. § 1400(d); see also

M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1157 (11th Cir. 2006). States are entitled

to receive these funds if they implement policies and procedures to ensure that disabled

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children are provided a free, appropriate public education (“FAPE”), including offering each

student special education and related services under an individualized education program

(“IEP”). 20 U.S.C. § 1412(a). States must also provide certain procedural safeguards to

the parents and children with the central purpose of facilitating a FAPE. Id. § 1412(a) (6);

see Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516, 524 (2007). 

Among these procedural safeguards is the parents’ right to an administrative “due process”

hearing if they disagree with their local educational agency regarding the appropriateness

of the child's current IEP. 20 U.S.C. § 1415(f)(1)(A). See also Winkelman, 550 U.S. at 529

(noting the “IDEA includes provisions conveying rights to parents as well as to children”). 

Prior to any such hearing, the local educational agency is required to convene a meeting,

or “resolution session,” with the parents where the parents discuss the complaint and the

local educational agency is provided an opportunity to resolve it; any written settlement

agreement reached at a resolution meeting is executed as a legally binding agreement and

the IDEA provides that it is enforceable in state or federal court. Id. § 1415(f)(1)(B). If the

parties proceed to a due process hearing, it is conducted by an administrative law judge

(“ALJ”) from the Division of Administrative Hearings of the Department of Management

Services on behalf of the Department of Education. See Fla. Stat. § 1003.57(1)(b); Fla.

Admin. Code R. 6A-6.03311(9)(u). The IDEA provides that parties to a hearing have the

right to written findings of fact and decisions, 20 U.S.C. § 1415(h), and that the ALJ’s

decision is final, except that any party involved in a due process hearing may appeal to the

state agency, id. § 1415(g), and any party “aggrieved by” an ALJ’s “findings and decision,”

or an administrative appeal, has the right to bring a civil action in state or federal court, id.

§ 1415(i). In any action or proceeding under the IDEA, a district court, in its discretion, “may

award reasonable attorneys' fees” to a “prevailing party who is the parent of a child with a

disability.” Id. § 1415(i)(3)(B)(I).

The plaintiff alleges in the amended complaint that D.R. is an 18 year old girl who

meets the IDEA’s eligibility criteria of a “child with a disability.” § 1401(3). In April 2009,

after the School Board failed to provide D.R. with a FAPE for over a year and a half, her

father initiated a due process hearing. Pursuant to § 1415(f)(1)(B), the parties met for a

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resolution session. Although progress was made, no settlement was reached at the

resolution meeting because the parties needed to obtain further information and evaluations

necessary to develop a new IEP. After eleven months, the parties reached an agreement. 

Both parties sought to have their settlement agreement incorporated into a Consent Order

endorsed by the ALJ. They submitted a proposed final order, which set forth the terms of

the agreement and listed certain actions agreed to by the School Board. The ALJ did not 2

sign the submitted proposed final consent decree. Instead, the ALJ noted in the final order

of dismissal that the parties had resolved the dispute and stated that an ALJ has no

authority to approve or disapprove a settlement executed by the parties, and that therefore,

“submission of a consent final order for signature by an ALJ is unnecessary.” (Doc. 21-2,

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at 1.) The pending petition for a due process hearing was therefore dismissed.

The plaintiff subsequently initiated the present action, seeking attorney’s fees as the

prevailing party against the School Board, and alleging that the Board of Education failed

to provide an adequate system of procedural rights, which allegedly deprived the plaintiff

of a settlement agreement enforceable in federal court, and that the Board of Education

deprived the plaintiff of the right to be determined a prevailing party under the IDEA for

purposes of obtaining an award of attorney’s fees. Defendants argue, among other things,

that the plaintiff has failed to state a claim because the facts alleged provide no basis for

finding the plaintiff to be a prevailing party and no basis for finding that the available state

procedures deprived the plaintiff of any right afforded under the IDEA.

DISCUSSION

The Claim Against the School Board:

In the cause of action against the School Board (count three), the plaintiff seeks

reasonable attorney’s fees as a prevailing party under the IDEA. The plaintiff alleges the

ALJ erred in denying the parties’ joint request to adopt the settlement agreement and that,

There is no mention of any agreement regarding attorney’s fees in the proposed order summarizing

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the settlement terms.

The ALJ cited no legal authority for this conclusion.

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“[b]ut for the ALJ’s erroneous determination of lack of jurisdiction, [the plaintiff] would meet

all the requirements of [prevailing party] status.” (Doc. 21, at 19.) The School Board argues

that the complaint does not state a plausible claim for an award of attorney’s fees arising

from the administrative proceedings.

Contrary to the ordinarily applicable “American Rule,” that parties are typically

responsible for their own attorney’s fees, the IDEA contains a specific provision authorizing

courts, in their discretion, to award “reasonable attorneys’ fees . . . to a prevailing party who

is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(I). See Alyeska Pipeline

Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247 (1975) (discussing the “American Rule”). 

In Buckhannon Board and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532

U.S. 598, 605 (2001), the Supreme Court explained that under “prevailing party” statutes,

which have been interpreted consistently with one another, courts may award fees only

when there is a “judicially sanctioned change in the legal relationship of the parties.” See

also id. at 602-03 & n.4. In other words, a “prevailing party” is one who obtains relief from

the court, such as a judgment on the merits or a court-ordered consent decree. Id. at 604.

The Court reasoned that 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.” Id. at 605. 4

The Eleventh Circuit has not expressly applied the Buckhannon test in the IDEA

context, but there is no reason to conclude it would not. The Eleventh Circuit has applied

Buckhannon broadly in a wide variety of fee-shifting statutory contexts, expressly noting the

Supreme Court’s acknowledgment that the various fee-shifting statutes are to be interpreted

consistently with each other. See Morillo-Cedron v. Dist. Dir. for U.S. Citizenship &

Immigration Servs., 452 F.3d 1254, 1258 (11th Cir. 2006) (applying Buckhannon to claims

under the Equal Access to Justice Act); Cook v. Randolph Cnty. Ga., 573 F.3d 1143, 1155

The “catalyst theory,” rejected by the Supreme Court in Buckhannon, would have allowed a plaintiff

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to obtain prevailing party status and seek an award of attorney’s fees where the suit had simply effected a

voluntary change in conduct on the part of the defendant; thus, a fee award was possible under that theory

where there was no judicially sanctioned change in the legal relationship between the parties. See

Buckhannon, 532 U.S. at 601-02; 604 -05.

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(11th Cir. 2009) (applying Buckhannon in the Civil Rights Act and Voting Rights Act

contexts); Smalbein ex rel. Estate of Smalbein v. City of Daytona Beach, 353 F.3d 901, 904

(11th Cir. 2003) (noting that it is “now established” that there must be a court-ordered

material alteration of legal relationship to permit an award of fees under § 1988, citing

Buckhannon); see also Matthew V. ex rel. Craig V. v. Dekalb Cnty. Sch. Sys., 244 F. Supp.

2d 1331, 1341-43 (N.D. Ga. 2003) (noting that in Loggerhead Turtle v. The County Council

of Volusia Cnty., 307 F.3d 1318 (11th Cir.2002), the Eleventh Circuit implicitly concluded

that Buckhannon’s analysis should be applied to all prevailing party statutes). Citing 5

Buckhannon, the Eleventh Circuit has instructed that to be considered a prevailing party,

“there must be (1) a situation where a party has been awarded by the court at least some

relief on the merits of his claim or (2) a judicial imprimatur on the change in the legal

relationship between the parties.” Smalbein, 353 F.3d at 905 (internal marks omitted). The

court also stated, “One may be a prevailing party through formal entry of a consent decree

as to a private settlement agreement because the agreement has the necessary judicial

approval and oversight to be considered an alteration in the legal relationship of the parties

warranting an award of attorney's fees under [the fee-shifting statutes].” Id. It is clear from

this authority, as well as the language of Buckhannon itself and the interpretation of other

circuits, that “a settlement of an IDEA administrative proceeding between the parties,

followed by a dismissal of the proceedings – without more – does not render the plaintiff a

‘prevailing party’ for statutory fee-shifting purposes no matter how favorable the settlement

The Eleventh Circuit has cited Buckhannon favorably in an unpublished case dealing tangentially

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with the IDEA, stating affirmatively that “only a party who obtains a judgment on the merits or a similar courtordered change in the parties’ legal relationship, such as a consent decree, may be considered a ‘prevailing

party’ for purposes of a fee award.” See Robert v. Cobb Cnty School Dist., 279 Fed. Appx. 798, 801 (11th

Cir. 2008) (unpublished) (citing to Buckhannon parenthetically, but ultimately holding that the IDEA fee shifting

statute was inapplicable because the plaintiff had not obtained relief on an IDEA claim; only on a state law

claim). Other courts have explicitly and consistently applied the principles of Buckhannon to ALJ orders under

the IDEA. See, e.g., A.R. ex rel. R.V. v. N.Y.C. Dep’t of Educ., 407 F.3d 65, 75-76 (2nd Cir. 2005) (applying

Buckhannon in the IDEA context and concluding that administrative imprimatur satisfies Buckhannon’s

“judicial imprimatur” requirement); John T. ex rel. Paul T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 556-58

(3d Cir. 2003); Matthew V. ex rel. Craig V. v. Dekalb Cnty. Sch. Sys., 244 F. Supp. 2d 1331, 1341-43 (N.D.

Ga. 2003) (applying Buckhannon in the IDEA context and noting the Eleventh Circuit has rejected a rigid

reading of Buckhannon).

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is to the plaintiff's interests.” A.R. ex rel. R.V. v. N.Y.C. Dept. of Educ., 407 F.3d 65, 77

(2nd Cir. 2005); see also Bingham v. New Berlin School Dist., 550 F.3d 601, 603 (7th Cir.

2008); P.N. v. Seattle School Dist., No.1, 474 F.3d 1165, 1173 (9th Cir. 2007); Doe v. Bos.

Public Schools, 358 F.3d 20, 29-30 (1st Cir. 2004); John T. ex rel. Paul T. v. Delaware Cnty.

Intermediate Unit, 318 F.3d 545, 558 (3rd Cir. 2003). Such a settlement plainly lacks the

necessary judicial imprimatur required by law for prevailing party status. See Doe, 358 F.3d

at 30 (holding, “[c]onsistent with each of the circuit courts that have considered the

application of Buckhannon to the IDEA . . . Plaintiffs who achieve their desired results via

private settlement may not, in the absence of judicial imprimatur, be considered ‘prevailing

parties’”). Moreover, although the IDEA provides that a settlement reached during a

resolution session may be enforced by a federal court, 20 U.S.C. § 1415(f)(1)(B), the

complaint in this case alleges that “the Resolution Meeting did not result in an agreed

settlement of the pending Due Process case.” (Doc. 21, at 15 (emphasis added).) Thus,

there is no genuine dispute, nor could there be on these allegations, that the plaintiff did not

obtain a settlement enforceable in federal court or one that has the necessary judicial

imprimatur to entitle the plaintiff to prevailing party status. 

Given Buckhannon, as interpreted and applied in this circuit and others, and the facts

alleged in the amended complaint, the plaintiff could not be considered a “prevailing party”

for purposes of the IDEA’s fee-shifting provision. The plaintiff, at least at times, agrees.6

Yet, she contends that she would meet the requirements of a “prevailing party” – and thus,

would be entitled to seek an award of attorney’s fees – if the ALJ’s had adopted the

proposed consent order. Neither the bare legal conclusion that the plaintiff is a prevailing

party, nor the speculative assertion that the plaintiff would be a prevailing party if the ALJ

had endorsed the consent decree, is sufficient to withstand a motion to dismiss for failure

to state a claim on this count. Without showing some judicial imprimatur on the settlement,

See doc. 21, at 19 (stating that “[b]ut for the ALJ’s erroneous determination of lack of jurisdiction,

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she would meet all the requirements of [prevailing party status]”); see also doc. 21, at 18 (stating “[t]he ALJ

erred by dismissing the action, thus denying Plaintiff the ‘judicial imprimatur’ necessary to be considered . .

. the prevailing party”). But see doc. 21, at 18 (stating that “as the prevailing party, Plaintiff is entitled to

attorney’s fees and litigation expenses in connection with the administrative proceeding”’).

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a claim for attorney’s fees as a prevailing party under the IDEA fee-shifting statute is not

plausible. Iqbal, 129 S. Ct. at 1949. Therefore, the claim against the School Board must

be dismissed. 

The Claims Against the Board of Education:

In count one of the amended complaint, the plaintiff claims to be a party aggrieved

by the ALJ’s final order, in which the ALJ dismissed the case and denied the parties’

request to adopt the settlement agreement as a consent order. The plaintiff asserts that the

Board of Education “failed to provide for a system of procedural rights which assure that

ALJs in IDEA due process proceedings have the authority to grant any and all relief that is

necessary to ensure that a child receive FAPE,” and that this failure deprived D.R. of a

“legal right to have any violation of the consent decree [enforced by the federal court].” 

(Doc. 21, at 17.) In count two, the plaintiff asserts the Board of Education’s failure to

provide adequate procedures “deprived D.R. of her right to be determined a prevailing party

under the IDEA.” (Doc. 21, at 17.) The Board of Education asserts that the plaintiff has

failed to state a claim, arguing, among other things, that the IDEA does not create the 7

substantive or procedural rights allegedly deprived. The court agrees. 8

It is important to note that the procedural safeguards required under the IDEA are

intended to ensure that disabled children are provided with a FAPE, see Winkelman, 550

U.S. at 524, and the amended complaint includes no factual assertion that D.R. is being

Alternatively, the Board of Education argues that it is entitled to summary judgment. The court only

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addresses the Board of Education’s Rule 12(b)(6) motion and sees no need to convert it into a motion for

summary judgment. A court must convert a Rule 12(b)(6) motion into a motion for summary judgment only

“if matters outside the pleadings are presented to and not excluded by the court.” Fed. R. Civ. P. 12(d).

Although the School Board has attached documents to its motion to dismiss, the court sees no need to

consider them and decides the motion solely on the basis of the complaint and documents attached thereto.

The School Board also argues that the Eleventh Amendment bars suit against it. Plaintiff argues

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that the IDEA explicitly abrogates this immunity by stating a “state shall not be immune under the 11th

Amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter.”

20 U.S.C. §1403(a) (conditioning a state’s receipt of federal IDEA funds to its consent to suit under that

statute). Plaintiff states that every circuit to address the issue has concluded that the IDEA has effectively

abrogated Eleventh Amendment immunity, and the School Board presents no case law to the contrary.

Nonetheless, the court finds it unnecessary to reach this and other arguments the Board of Education

advanced in the motion to dismiss because the court concludes that the plaintiff has failed to state a claim.

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deprived of a FAPE or of a procedure that would otherwise permit D.R. to receive a FAPE.

Instead, this cause of action is about the plaintiff’s ability to secure a judicially enforceable

consent decree that, in turn, would have entitled the plaintiff to prevailing party status for

purposes of the IDEA’s fee-shifting statute. Thus, a child’s education is not at stake in this

case, only a claim for attorney’s fees. 

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Plaintiff has not set forth any IDEA provision that entitles a parent to a judicially

enforced consent decree or prevailing party status after a private settlement, and the court

has found none. The IDEA expressly provides that settlements reached in mediation or at

the resolution meeting are judicially enforceable. See 20 U.S.C. § 1415(e)(2)(F) &

§ 1415(f)(1)(B)(iii). But the IDEA is silent regarding settlements reached outside these

parameters. While there is case law finding an ALJ-approved settlement agreement to be

enforceable in federal court under 42 U.S.C. § 1983, see P.N. v. Clementon Bd. of Educ.,

442 F.3d 848, 854-55 (3rd Cir.), cert. denied, 549 U.S. 881 (2006), it does not follow that

individuals have a “legal right” under the IDEA to require an ALJ to endorse a private

settlement as a consent decree, or that the state has an obligation to implement procedures

to guarantee that private settlements are entered as consent decrees. The facts alleged 10

in the amended complaint show there was no ALJ-endorsed consent decree, no mediation,

no due process hearing, and the settlement was not reached at the resolution meeting. The

ALJ dismissed the petition on grounds that the parties had resolved their dispute. Plaintiff

chose to bypass available procedures of mediation and/or pursuing a due process hearing,

which could have ensured judicial enforceability and prevailing party status. Although both

parties “sought to have [the agreement] incorporated into a Consent Order” (doc. 21, at 15),

the plaintiff did not administratively appeal the ALJ’s decision not to endorse it nor did the

plaintiff revoke the agreement and seek a due process hearing when the ALJ refused to

 Any award of attorney’s fees is discretionary, even if prevailing party status is demonstrated. See

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20 § 1415(i)(3)(B)(I) (authorizing that a court may award attorney’s fees to a prevailing party).

Nonetheless, the parties to a private settlement are not without recourse as their agreement is

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enforceable in state court and would be governed by state contract law. See Munroe v. U.S. Food Serv., 985

So.2d 654. 655 (Fla. 1st DCA 2008). Furthermore, the parents are free to request a due process hearing if

the School Board does not provide a FAPE as required by the IDEA.

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enter a consent decree, both of which the plaintiff could have done. The IDEA guarantees

the right to a FAPE, but “it does not explicitly guarantee the right to attorney’s fees incurred

in pursuit of that education.” Doe, 358 F.3d at 29 (internal marks omitted). Whether

procedures requiring an ALJ to endorse private settlement agreements would foster

settlement and advance the purposes of the IDEA are policy decisions for Congress to

decide, not the courts. Nothing in the IDEA requires a state to implement the procedures

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the plaintiff seeks; the state is therefore under no obligation to provide procedures

guaranteeing a judicially enforceable settlement or prevailing party status when parties

choose to settle outside of the statutorily provided resolution meeting or mediation. The

court concludes that the plaintiff’s assertions of a legal right to procedures guaranteeing an

ALJ-approved settlement agreement and prevailing party status are not supported by law

and do not state a claim under the IDEA against the Board of Education on either count. 

Accordingly, it is hereby ORDERED:

1. The defendants’ motions to dismiss (docs. 23 & 24) are GRANTED. 

2. The Clerk is directed to dismiss the case, with prejudice, and tax costs

against the plaintiff. 

DONE and ORDERED on this 18th day of July, 2011.

s/ M. Casey Rodgers

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

The court agrees with the First Circuit’s assessment that, “[s]hould Congress wish to expressly

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ensure that fees are available following private settlement, it may amend the IDEA accordingly.” Doe, 358

F.3d at 29.

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