DI STRI CT OF COLUMBIA,

Plaintiff,

v. FAT MATA B ARRI E and L AW OFF I CE OF CHRI STOPHER N. ANWAH, PL L C, Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09-822 ( CKK)

MEMORAN DUM OP INION (Oc tober 4, 2010) Plaintiff District of Columbia (the “District” ) bring s this action ag ainst Defe ndants Fatmata B arr ie and the L aw Of fice of Christopher N. Anwah, PL L C, (collectively , “De fenda nts”), see king attorney s’ fe es under the fe e-shiftingprovisions of the Individuals with Disabilities Education Act (“ I DEA” ), 20 U.S.C. §§ 1415(i)(3)( B) (i)(I I )-( I I I ). The D istrict claims that it is entit led to an aw ard of attorney s’ fe es incurr ed in association with adminis trative proce eding s broug ht under the I DEA by Def endants on be half of the ir client bec ause D efe ndants initiated and continued the litig ation below eve n though the ir claims wer e fr ivolous,

unrea sonable, a

nd/or without foundation, or we re br oug ht for an imprope r purpose , such as incre asingthe cost of the litig ation. The pa rties have cross-move d for summary judgme nt. Upon consideration of the cross- motions, t he par ties’ re spective br iefing , the administrative re cord, applicable case law and statutory authority , as we ll as the rec ord of this ca se as a whole, theCourt DENI ES Pl aintiff District of Columbia’s [12] Motion for Summary J udg ment and GRANTS-I

N-PART and DEN I ES-I

N-PART Def

endants’ [13] Mot ion for Summary J udg ment. Specifica lly , Def

endants’ Motion is GRANTED insofa r as De fenda

nts contend that the District of Columbia is not entit led to attorney s’ fe es as a sserted in Counts I , I I , and I I Iof the Complaint, but is DENI ED insofar

as De fenda

nts appea r to seek to va cate the Dec ember 8, 2008 Hea

ring Offic er D ecision and a

n awa rd of a ttorney s’ fe es and c osts, for the re asons set for th below. I. BACKG ROUND As explained above, the prese nt action ar ises from the District’ s reque st for attorne y s’ fee s under the I DEA’s f

ee- shifting pr ovisions. The District argues that it is entitled to an awar d of attorne y s’ fe es incurr ed in associa tion with (a) a due proce ss complaint filed by Def endants on October 7, 2008 (her einaf

ter, “ October

Due Proc ess Complaint”) and ( b) the subseque nt due proce ss hear ings he ld on the merits of that complaint on Nove mber 19 a nd 26, 2008 (her einaf

ter, “Nove mber Due Process He aring ”). The Court notes that this was the second due proce ss complaint filed by

Def endants a s part of a

long- standing and continuingdispute betwee n the parties r eg ardingthe District’s complianc e with the I DEA. Ac cording ly , while the instant litigation foc uses only

on Def endants’ c onduct in relation to thi s second c omplaint and related due proc ess hea

ring , it is nonetheless nece ssary to set forth a more fulsome explanation of the parties’ ong oing litig ation below in orde r to proper ly understand the parties’ arguments on appea l. I n addition, although the substantive merits of De fenda nts’ administrative complaints and the District’ s compliance with the I DEA a re not a t issue in this lawsuit, it is also useful to briefly set forth the r eleva

nt provisions of the I DEA in orde r to place in context t he District’s claims that Def

endants’ c onduct in the administrative proc eeding s below wa s frivolous or

2unrea sonable. The Court theref ore be g ins its di scussion by first revie wingthe re levant statutory provisions of the I DEA be fore then turningto discuss the fac tual and proc edura l background of the administrative proc eeding s below as we ll as the curr ent litigation. Notwithstandingthe Court’s discussion of these issues, the Court empha siz es that the only question now befor e the Court is whether the D istrict is entitl ed to attorne y s’ fe es and c osts ex pended in litigating the October Due Proc ess Complaint and in prepar ing f or and attending the November Due Proc ess Hea ring

. A. The IDEA Statutory Frame work The purpose of the I DEA is “to ensur e that all childre n with disabilit ies have available to them a fr ee a

ppropriate public education that emphasizes special educ ation and re lated ser vices desig ned to meet their

unique nee ds . . . .” 20 U.S.C. § 1400(d)(1) (A). “ I mplicit” in the I DEA’s g uara ntee “ is the require ment that the educ ation to which ac cess is provided be sufficie nt to confe r some educ ational bene fit upon the handica pped child.” Bd. of Educ. of Hendric k Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 200 (1982). As a condition of rec eivingfundingunder the I DEA, school districts ar e re quired to adopt proc edure s to ensure a ppropriate educational place ment of disabled students. See 20 U.S.C. § 1413. A student’s eligibility for a FAPE unde r the I DEA is deter

mined by the re sults of testing and e valuatingthe student, and the f indings of a “multidiscipli nary

team” ( “MDT” ) or “ individualiz ed educ ation prog ram” (“I EP”) tea m. Id. § 1414. Such a tea

m consists of the pare nts and teac hers of the disabled student, as w ell as other educational specialists, who meet a nd confe r in a c ollaborative pr ocess to dete rmine how be st to

acc ommodate the nee ds of the student and pr ovide a F APE. See id. § 1414(d)( 1)(B ).

3School districts must also deve lop an I EP, a compre hensive individual educ ation

prog ram, for

meetingthe spec ial educational needs of e ach disa bled student. See id. § 1414(d)( 2)(A) . The I EP must be formulated in ac corda nce w ith the terms of the I DEA a nd “should be re asonably

calc ulated to ena

ble the child to ac hieve pa ssing mar ks and adva

nce f rom g rade to gr ade.” Rowley , 458 U.S. at 204. The I DEA re quires I EPs to include statements of prese nt functional per formanc e, mea surable a nnual g oals, how the g oals will be measur ed, and “the spe cial educ ation and re lated ser vices a nd supplementary

aids and ser

vices . . . to be provided to the c hild, or on behalf of the child, and a

statement of the pr og ram modifications or supports for school pe rsonnel that will be provide d for the c hild.” 20 U.S.C. § 1414(d)(1)( A)(I ). “I f no suitable public school is ava ilable, the school sy stem must pay the costs of sendingthe child to an appr opriate pr ivate school.” Reid v. D istrict of Columbia , 401 F.3d 516, 519 ( D.C. Cir. 2005) (citation and a lterations omitted). The I DEA guara

ntees pa rents of disable d children the opportunity to participate in the evaluation and place ment proce ss. See 20 U.S .C. §§ 1414(f), 1415(b) (1). Par ents who objec t to their child’s “ identification, eva luation, or educ ational place ment” ar e entitled to an impar tial due proce ss hear ing, see id. §§ 1415(b)( 6), (f )(1) , at which they

have a “right to be acc ompanied and advised by

counsel” and a “ rig ht to present evide nce a nd confr ont, cross-e x amine, and c ompel the attenda

nce of witnesses,” id. § 1415(h). A qua lified impartial hea ringoffice r conduc ts the due proc ess hea

ringin acc ordanc e with the Ac t. 5 D.C. Mun. Regs. § 3030.1. Under the I DEA, a

party is entitled to attorney s’ fe es and c osts if he or she is a “pre vailing pa

rty .” 20 U.S.C. § 1415(i)(3) (B ). A pa rty “ag g rieve d by ” a he aringoffice r’s finding s and dec ision may bringa civil ac tion in either state or f eder al cour

t. Id. § 1415(i)(2) ; 5

4D.C. Mun. Reg s. § 3031.5. The district cour t has reme dial authority

under the I DEA to g rant “such r elief a s the court de termines is appropr iate” unde r the I DEA a s g uided by the g oals of the Act. 20 U.S.C. § 1415(i)(2) (C)(iii). This includes discre tion to award r easona ble attorne y s’ fe es to the party

that preva ils at the hear ing. Id. § 1415(i)(3)

. B. Factual and Proce dural Background Def endant B arr ie is an attorne y licensed to pra ctice in the D istrict and was e mploy ed at all rele vant times by

the co- Def

endant in this case , the L aw Of fice of Christopher N. Anwah, PL L C, located in the District of Columbia. Pl.’s Stm t. ¶¶ 1, 2. Def endants re prese nted T.P., an 1 eig ht-y ear -old student whom the District has identified a s a student with a disability and in nee d of spec ial educa

tion. Pl .’s Stmt. ¶ 1; Defs.’ Stmt. 1. At the tim e of the administrative proce eding s below, T.P. attended A iton Elementary School (“Aiton”) , a public school run by the District of Columbia Publi c Schools (“D CPS ”). D efs.’ Stmt . ¶ 1.

1. The August Due Proce ss Compl aint On August 13, 2008, Defe ndants filed an initial due pr ocess c omplaint on T.P.’s behalf (her einaf ter, “ August Due Proce ss Compl aint”), a lleg ing that DCPS : (1) fa iled to update T.P.’s triennial eva luations; (2) failed to pr ovide an a ppropriate place ment for the pr evious two y ear s;

The Court strictly

adher es to the text of L ocal Civil Rule 7(h) when r esolving motions 1 for summary

judgme nt. See B urke v . Gould , 286 F.3d 513, 519 ( D.C. Cir. 2002) (findingdistrict courts must invoke the loca l rule bef ore a pplying it to the ca se). The Court has advised the parties that it strictly

adher es to Rule 7(h) a

nd has stated that it “a ssumes fac ts identified by the moving pa

rty in its st atement of

materia l fac ts are a dmitted, unless such a fa ct is controver ted in the statement of g enuine issues filed in opposition to the motion.” [ 10] Order a t 3-4 (June 30, 2009). Thus, in most inst ance s the Court shall cite only to one par

ty ’s Statement of Mate rial Fa cts (“Stmt.”) unless a

statement is contra dicted by the opposingparty , in which ca se the Court may cite a pa rty ’s Response to the Statement of Material F acts (“ Resp.”). The Court shall also cite dire ctly

to evidence in the rec ord, whe re a ppropriate

. 5(3) f

ailed to deve lop an appr opriate I EP for the pa st two school y ear s; and (4) f ailed to provide appropr iate educ ational, re lated, and spe cial educ ation service s for the 2006- 2007 and 2007-2008 school y ear s at Aiton. Pl.’s S tmt. ¶ 4; see also Pl.’s MS J , Ex . 1 (Aug . 13, 2008 Due Proc ess Compl.). Defe ndants reque sted that the He aring Offic er or der D CPS to: (1) fund a place ment of the par ent’s choic e, with transpor tation, at one of se vera l private schools; (2) fund an independe nt Vineland Assessment to rule out mental reta rdation (“ MR”); (3) c onvene a n MDT/I EP meeting to develop an a ppropriate I EP for T.P.; and (4) pr ovide T.P. with educational and re lated ser

vices. Pl.’s MSJ , Ex . 1 (Aug . 13, 2008 Due Proc ess Compl.), at 3. 2. The Septembe r HOD A hea ringwas he ld on the merits of the August Due Proce ss Compl aint, and a H ear ing Offic er’ s Dec ision (“HOD” ) wa s subsequently issued on September 18, 2008 ( here inafter , “September

HOD” ). De fs.’ Stmt. ¶ 7; see also Admin. Record ( “A.R.”) at 129-34 (Sept. 18, 2008 HOD) . As set forth ther ein, the September HOD f ound that “DCPS has failed to timely evaluate the student . . . and de velop an a ppropriate I EP,” and that “ [t ]he delay in appropriately evaluating the stude nt and the continuingfailure to devise an a ppropriate educational prog ram has for ced the student to languish in an inappropriate place ment.” A.R. at 132. The September HOD ther efor e orde red tha t DCPS was re quired to “f und an indepe ndent Vineland A ssessment” and to “c onvene a

n I EP/placement mee ting within 5 day s of re ceivingthe [Vineland Assessment].” Id. The Septembe r HOD further specifie d that the purpose of the I EP/placement meetingwas to “r eview the evaluation, determine if a dditional evaluations are neede d, update the I EP and discuss and dete rmine the ne ed for additional service s, and an a ppropriate place ment.” Id. In addition, DCPS was re quired to “issue a notice of pla ceme nt within 5 day s of the

6place ment deter mination meeting.” Id. Finally , the September HOD noted that DCPS would “re ceive a one da

y extension for ever

y day of dela y cause d by

the Petitioner, the student, or their repr esentatives.” Id. Neither party appea led the September

HOD. 3. The Vine land Assessment Pursuant to the September H OD, T.P.’s par ents arr ang ed for an indepe ndent Vineland Assessment to be conduc ted at the District’ s cost. SeeDef s.’ Stmt. ¶ 9. The Vineland Assessment deter

mined that T.P. should be classified a s MR in additi on to her pre viously

identified spee ch and la

ng uag e cla ssifications. Id. ¶ 10. The V ineland Assessment wa s forwa rded to DCPS on September 25, 2008, and w as re ceive d by the District on the same day , alongwith a cove r letter f rom Def endants re questing that, “[p] er the HOD, . . . DCPS convene an MDT/I EP meeting within the allotted timeframe.” Id. ¶ 9; Pl.’s St mt. ¶ 7; A.R. at 114. The I EP/placement mee ting, howe ver, did not occ ur within five day s of DCPS’ rece ipt of the assessment — i.e., by

September 30, 2008. A .R. at 5. 4. The Oc tober Due Process Complaint As of Oc tober 7, 2008, having not yet hea rd fr om the District as to the sche duling of the I EP/placement mee ting, De fenda nts filed a sec ond Due Proc ess Complaint on T.P.’s behalf (her einaf ter, the “ October

Due Proc ess Complaint”). Pl’s Stm t. ¶ 8; see also A.R. at 15-20 (O ct. 7, 2008 Due Proc ess Compl.). The Oc tober Due Process Complaint raised a lleg ations simil ar to those in the initial August Due Process Complaint, claiming that DCPS : (1) fa iled to convene the I EP/placement mee ting within five da y s of re ceivingthe Vineland A ssessment, as re quired by the September H OD; (2) f

ailed to provide T.P., who at the time remaine d at Aiton, with an appropr iate plac ement, as r equire d by the September

HOD; (3) failed to de velop an a ppropriate

7I EP for T.P. that implemented the finding s of the Vinela nd Assessment; and (4) failed to provide appropr iate educ ational, re lated, and spe cial educ ation service s for the 2006- 2007 and 2007-2008 school y ear s. A.R. at 17. The Oc tober Due Process Complaint sought a n order requiringDCPS to: (1) fund a

place ment of the pa

rent’s c hoice, with tra

nsportation, at one of

sever al private schools; (2) conve ne an I EP/placement mee ting to deve lop an appr opriate I EP for T.P.; and (3) provide T.P. with educa

tional and re lated ser

vices. Id. 5. An I EP/P lace ment Meetingis Held on Octobe r 31, 2008 The ne x t day , October

8, 2008, DCPS faxed a “ L etter of Invitation/Notice to a Mee ting of the I EP Team” to Annie Pressley , an educ ational advoc ate e mploy ed by Def endants a nd assig ned to work with T.P.’s pare nts, advising that a n I EP meeting was sche duled for O ctober 13, 2008. Pl.’s St mt. ¶ 12. DCPS sent a sec ond letter to Pressley on October

9, 2008, proposingthree additional meetingdates: Oc tober 14, 17, or 21, 2008. Id. ¶ 14. Pressley subsequently

responde d to DCPS , advising that the proposed dates did not work and r equestingthat the meetingbe held instead on either

October 23 or 31, 2008. Id. ¶ 15. DCPS acc epted the pr oposed Oc tober 31, 2 2008 date. Id. ¶ 17. The I EP/placement mee ting wa s held as sche duled on Octobe r 31, 2008. Id. ¶ 18. A ne w I EP was deve loped at the mee ting ( here inafter , “Oc tober I EP”). Id. As requir ed by the September H OD, the I EP team revie wed the V ineland Assessment, de termined whe ther additional evaluations were ne eded, updated T.P.’s previous I EP, and discussed and de termined

The pa rties dispute whethe r Pressley responde d to DCPS on October 8, 2008, as 2 Def endants c laim, or on Octobe r 13, 2008, as the D istrict claims. SeePl.’s St mt. ¶ 15; Defs.’ Stmt . ¶ 13. The Court f

inds that this di spute is immaterial to the prese nt liti g ation and ther efor e need not be resolved. 8the nee d for a dditional services f or T.P. Id. ¶ 20. As is of par ticular re levanc e, the tea

m also conclude d that Aiton could not implement the I EP. Defs.’ Stmt. ¶ 14. The I EP team, except for T.P.’s pare nt and educ ational advoc ate, de termined that Tyler Eleme ntary School (“Tyler” ) wa s an appr opriate pla ceme nt for T.P. Pl.’s St mt. ¶ 20. By contra st, the pare nt proposed Ac cotink Aca demy as an a ppropriate place ment for T.P. and pr ovided DCPS wit h an ac cepta nce le tter from the sc hool. Id. ¶ 15. Althoug h there is conflictingtestimony and evide nce in the r ecor d as to whether

the par ent explicitl y

reje cted Ty

ler a s an appr opriate pla ceme nt at the Octobe r 31 meeting , the I EP/placement mee ting notes indicate that “Mrs. Par ker [i.e., the par ent] and educational advocate re

ject Tyler.” Pl.’s St mt. ¶ 24; A.R. at 153. DCPS did not issue a notice of place ment within five day s of the I EP/placement mee ting a s require d by the September

HOD. Def s.’ Stmt. ¶ 15. T.P. t here fore rema ined at Aiton, which a ll parties agree d was a n inappropriate place ment. Pl.’s St mt. ¶ 26. 3

6. The Nove mber Due Process He aring A due pr ocess he aringwas c onvened on N ovember 19, 2008, and continued to Nove mber 26, 2008, with respec t to T.P.’s October Due Process Complaint (here inafter , “Nove mber Due Process He aring ”). Pl.’s Stmt. ¶ 26. Three w itnesses wer e ca lled duringthe five hour s of The District maintains that “[t]he I EP/MDT defer red making a

final plac ement dec ision 3 at this meeting to affor d the par ent an oppor tunity to visitthe proposed pla ceme nt and to see if it was suitable to her

and the student,” but that “[n] either T.P.’s pa rent nor Ms. Pre ssley

ever visited Tyler to asse ss its sui tability for T.P. af

ter the I EP meeting .” Pl.’s Stmt .¶ 23. Acc ording ly , the District urg es that the only rea son for the de lay

in issuing a notice of plac ement was the pa

rent’s own conduct a

nd failure to respond to DCPS as to the suit ability of Tyler. Def endants for

their par t do not disput e that T.P.’s par ent neve r visited Tyler or r esponded to the District, but do dispute the District’s contention that the I EP team ag ree d to defe r the issuanc e of the place ment notice pendingthe par ent’s re sponse. SeeDef s.’ Resp. ¶ 23. Reg ardle ss, for the rea sons set forth below, the Court finds that it need not resolve this dispute as it is not material to the Court’s dec ision herein. See infra at pp. 26-27. 9hear ing — na mely , Anne Warnke , an Assistant Educa tional Direc tor at Ac cotink Aca demy , and Pressley , T.P.’s educational advocate, who both testified on beha lf of T.P., and Ang ela Allen, the Special Educ ation Coordinator for Aiton, who testified on beha lf of DCPS. Id. ¶ 28. Duringthe

course of the Nove mber Due Process He aring , the testimony and evide nce pr esente d focuse d principally

on the first and se cond cla ims alleg ed in the Oc tober Due Process Complaint, specific ally : (1) DCPS’ failure to c onvene a n I EP/placement mee ting within five da y s of re ceipt of the Vine land Assessment, as r equire d by the September

HOD; and ( 2) the pa

rties’ dispute as to the proposed plac ement. See ge nerally 11/19/08 Due Proce ss Hear ing T ransc ript (“11/19/08 Tr.”) ; 11/26/08 Due Process He aringTransc ript (“11/26/08 Tr.” ). The third c laim in the October Due Proc ess Complaint, alleg ing that DCPS had fa iled to develop an a ppropriate I EP, was only marg inally

discussed duringthe Novembe r Due Process He aring ; Defe ndants in fac t presente d no evidenc e that the Oc tober I EP developed at the October 31, 2008 meetingwas inappr opriate, a nd the only evidenc e in the re cord w as Allen’s te stimony that the I EP was appr opriate. Pl.’s Stmt. ¶¶ 30, 38. F inally , with respec t to the fourth alleg ation in the October Due Proc ess Complaint — i.e., that DCPS failed to provide appr opriate e ducational, r elated, a nd specia l education services for the 2006- 2007 and 2007-2008 sc hool y ear s — the hea ringoffice r made clea

r that she would not consider e vidence reg ardingevents oc curr ing pr ior to the issuance of the Septembe r HOD , as “the issue in this case being s with the [S eptember ] HOD.” 11/19/08 Tr. at 50. Ac cording ly , no evidenc e or te stimony

was pre sented on this final issue. 7. The De cembe r HOD The he aringoffice r issued her HOD on De cembe r 6, 2008 (he reina fter, “ Dec ember HOD” ). A.R. at 2-10 ( Dec . 6, 2008 HOD) . As set forth ther ein, the hea ringoffice r found in

10favor

of DCPS as to the first claim in the October Due Proc ess Complaint, concluding that Petitioners’ advoc ates a

nd/or attorney

wer e solely

to blame for a

ny delay in schedulingthe I EP meetingfollowing the re ceipt of the Vineland Asse ssment by DCPS

. Id. at 8. Specific ally , the hear ing of

fice r found that De fenda

nts had advised DCPS to provide seven to ten da y s notice of any proposed I EP meeting in order to e nable c ounsel to ensure the par ents could attend the proposed mee ting. Id. The he aringoffice r fur ther found that T.P.’s educational advocate, 4 Pressley , had re

jected the ear lier-pr oposed date s for the I EP/placement mee ting a nd had her self proposed the O ctober

31, 2010 meetingdate. Id. The he aringoffice r conc luded that “DCPS should not be held responsible f or dela y s cause d by

Petitioners, their educ ational advoc ate, or their attorne y ” bec ause the September H OD explicitly stated that “D CPS was to be pr ovided a one day extension for ever

y day of dela y cause d by

the Petitioner, the Student, or their repr esentatives.” Id. Acc ording ly , the hea ringoffice r held that “ Petitioner’s claim that DCPS The pa rties dispute whethe r this finding by the hea ringoffice r ac curately

ref lects the 4 testimony provided at the November Due Proc ess Hea

ring . The District a sserts that the finding is well-supported by

the re cord e vidence , and that, re g ardle ss, the “He aringOffic er’ s decision is res judicata , and is not subject to collater al attac k at this juncture.” Pl.’s Opp’ n at 5; Pl.’s St mt. ¶ 40. Def endants c ontend that the findingis in error a s the only testimony

provided duringthe November

Due Proc ess Hea

ringwas that I DEA c ounsel g ener ally asked D CPS to provide seve n to ten day s notice prior to sche duling a meeting— not that Defe ndants in this case spec ifically asked D CPS to provide such a dvance notice, see11/26/08 Tr. at 60-61; to the contra ry , no testimony was provide d that Def

endants in this case specific ally reque sted that they

be provide d seven to ten da

y s notice, and the evidenc e in fa ct demonstrate s that Defe ndants reque sted DCPS schedule the I EP meeting in compliance w ith the September HO D (i.e., w ithin five day s of rec eipt of the Vine land Assessment), seeA.R. at 114. SeeDef s.’ Opp’n at 10-11; Defs.’ Resp. ¶ 40. Whil e the District is cor rec t that the Dec ember

HOD is a f

inal decision not subject to collater al attac k and is there fore binding on T.P. and D CPS as to the merits of T.P.’s a lleg ations in her Oc tober Due Process Complaint, whether the hea ringoffice r’s fa ctual finding s are equally binding on De fenda

nts in thi s action to rec over attorney s’ fe es is less clea r and, unf ortunately , neither pa rty has suffic iently

briefe d this iss ue. Reg ardle ss, the Court finds that this di spute is not material to the re solution of the District’s Complaint, for the rea sons set forth below. See infra at pp. 19-21. 11denied the Student F APE by failingto schedule the meetingwithin five day s of re ceivingthe Vineland is meritless at be st.” Id. The he aringoffice r also found in fa vor of DCPS as to the second a lleg ation in the October Due Proc ess Complaint that DCP S had failed to provide an appr opriate pla ceme nt for T.P. Id. at 9. The he aringoffice r conc luded that: The I EP team took sufficie nt steps to involve the Parents in the place ment decision.

. . . Petitioners of

fer ed no evidenc e to c ounter the I EP te am’s assessment that Tyler was an appropr iate place ment. Neither the Parents n o r M s . Pressley ever visited Tyler, despite that Ms. Allen had arr ang ed a sit e v i s i t wi th the Tyler [special educati o n co o rdinator]. The I EP team did not issue a [prior notice of place ment] beca use they wer e awa iting input from the Parents reg arding her impressions of Tyler.

. . . Whil e Petitioners may have pref err ed Acc otink, I DEA g uara ntees specia l education students only a “basic floor of opportunity .” Moreove r, Petitioners prese nted no evidenc e that Ty l er wo uld not provide the Student the requisite basic floor of opportunity

. Thus, Petitioners failed to establish by a preponde ranc e of the evidenc e that DCPS failed to provide a n appropr iate plac ement for the Student. Id. (interna l citations omit ted). Turningto the third alleg ation in the October Due Proc ess Complaint, namely that DCPS had fa iled to develop an a ppropriate I EP, the hear ing of fice r also found f

or DCPS. Id. The hear ing of

fice r dete rmined that “Petitioners fa iled to present a ny evidenc e about the appropr iateness ( or lac k there of) of the I EP,” and that the “ only testimony

reg ardingthe I EP was . . . that the I EP was appr opriate f or the Student.” Id. at 9. Wit h respe ct to the fourth a lleg ation in the October Due Proc ess Complaint reg ardingthe provision of educ ational servic es to T.P. for the 2006- 2008 school y ear s, the hea ringoffice r found that “this claim is res judicata ,” as the “exact same claim was br oug ht in Petit ioner’s August 13, 2008 complaint” and “ was de cided by another hear ing of

fice r’s HO D on September 19, 2008.” Id. at 3 n.2. The he aringoffice r there fore “dec line[d] to revisit this claim.” Id.

12Finally , the hea ringoffice r noted that a

court may

awa rd a loc al educ ational ag ency attorney s’ fe es ag ainst a par ent’s attorne y if the attorne y

files a c omplaint or civil action that is frivolous, unrea sonable, or w ithout foundation, or for litigation maintained afte r it beca me g roundless. Id. at 10. B ased on he r findingthat “Petitioners’ Advoc ate a nd/or Counsel were solely responsible for

the delay s in schedulingthe I EP meeting ,” the “ Hea ringOffic er conclude [d] that Petitioners’ counsel c ontinued to liti g ate a fter it wa s appar ent that this issue had become g roundless and a fter it wa s appar ent that Petitioners wer e entitled to no re lief on this issue.” Id. As the par

ties all rec og nize on appeal, howe ver, this findingby the hea ringoffice r is not leg ally

binding on this Court. The Oc tober Due Process Complaint was dismissed with prejudice. Id. The De cembe r HOD wa s not appea led throug h the administrative proc ess within the allotted 90-day period. Pl.’s MSJ at 14; Def

s.’ Reply at 4-5. 8. The Instant L itigation On May 5, 2009, the District filed the Complaint in the instant action. SeeCompl., Docke t No. [1] . As set forth ther ein, the Complaint contains three counts broug ht under the I DEA’s f ee- shifting pr ovision. Count Iasser ts that the District is entitled to attorney s’ fe es “[b] eca use De fenda

nts filed the due pr ocess c omplaint alleg ing untimely schedulingof a me eting that was not sche duled in a timely manner solely due to Def

endants’ own interfe renc e, and the ir alleg ations that other re quirements of the September 18, 2008 H OD had not be en fulfilled we re also the re sult of their own interf ere nce w ith the schedulingof the MDT/I EP meeting s,” such that “De fenda nts’ October

7, 2008 due proc ess complaint was f rivolous, unrea sonable a

nd/or without foundation.” Id. ¶ 48. Count I Ialleg es that the District is also entitled to attorney s’ fe es base d

13upon the fa ct that “De fenda nts continued to liti g ate a fter D CPS schedule d an MDT/I EP meeting , held an MDT/I EP meeting and other wise fulfilled a ll requireme nts of the September 18, 2008 HOD.” Id. ¶ 51. Count I I Iasser ts that, based on the a

bove alleg ations, it is also apparent that Def endants filed the “Oc tober 7, 2008 due proce ss complaint was filed f or an imprope r purpose , such as to har ass, to cause unnece ssary delay , or to nee dlessly

incre ase the cost of litigation.” Id. ¶ 56. The D istrict seeks an a war d of $3,753.75 in attorney s’ fe es and c osts for 13.65 hours of leg al work inc urre d in repre senting DCPS in the administrative proc eeding s below. Id. at 10. This matter now c omes befor e the Court on the f iling of the parties’ Cross-Motions for Summary J udg ment. SeePl.’s MS J , Docke t No. [12] ; Defs.’ MSJ , Docke t No. [13] . Eac h party has also filed a

n opposition t o the opposing party ’s motion as well as a r eply in support of their own motion. SeePl.’s Opp’n, Docke t No. [15] ; Defs.’ Opp’n, Doc ket No. [16] ; Pl.’s R eply , Docke t No. [17] ; Defs.’ Reply , Docke t No. [18] . In addition, the District has filed the Administrative Record f

or this case , seeDocke t No. [11] , which has be en dee med authentic a nd admissible, see07/08/09 Min. Order. B riefingwith respec t to the parties’ Cross-Motions for Summary J udg ment is now complete, a nd the issues are ripe for

the Court’s re view and resolution. II. LEGAL STANDARD The pa rties have filed cr oss motions for summary judgme nt pursuant to Fe dera l Rule of Civil Procedur e 56. Summary judgme nt is proper whe n “the plea dings, the discovery [i f any] and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P

. 56(c) . Under

the summary

judgme nt standard, the movingparty bear s the “initial responsibility

14of informingthe district court of the basis for its motion, and identifying those portions of the

pleading s, depositions, answers to interr og atories, a nd admissions on file, toge ther with the aff idavits, if any , which it believes de monstrate the a bsence of a g enuine issue of materia l fac t.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (inter nal quotation marks omitted). In response , the non-movingparty must “g o beyond the pleading s and by [i ts] own af

fidavits, or by the depositions, answer s to interrog atories, a nd admissions on file, desig nate spe cific f acts showing that there is a g enuine issue f or trial.” Id. at 324 (interna l quotation marks omitted). All underlying f

acts a nd infere nces a

re a naly zed in the light most favora ble to the non-movingparty

. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 247 (1986). Although a

court should dra

w all infer ence s from the supportingrec ords submitted by the nonmoving pa

rty , the mere exis tence of a f actua l dispute, by

itself, is insufficient to bar summar y judgme nt. See Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 248 (1986). To be materia l, the fac tual asser

tion mustbe ca

pable of aff ectingthe substantive outcome of the litigation; to be g enuine, the issue must be suppor ted by sufficie nt admissible evidence that a re asonable trier- offac t could find for the nonmoving pa rty

. Laningham v. U.S. Navy , 813 F.2d 1236, 1242- 43 (D.C. Cir. 1987); Liberty Lobby , 477 U.S. at 251 (the c ourt must determine “ whether the evidenc e prese nts a sufficie nt disag ree ment to require submissi on to a jury or whe ther it is so one-sided that one par

ty must prevail as a

matter of la

w”) . “I f the e vidence is merely colora ble, or is not sufficie ntly

probative, summar

y judgme nt may

be g rante d.” Liberty Lobby , 477 U.S. at 249-50 (interna l citations omit ted). “ Mere alleg ations or denials in the a dverse party ’s pleading s are insufficient to def

eat a n otherwise pr oper motion for summar y judgme nt.” W

illiams v. Callaghan , 938 F. Supp. 46, 49 (D.D .C. 1996). The a dverse party must do more than simply

15“show that ther e is some metaphy sical doubt as to the mater ial fac ts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp ., 475 U.S. 574, 586 (1986). Instead, while the movant bear s the initial responsibility

of identifying those portions of the re cord that demonstrate the a bsence of a g enuine issue of

materia l fac t, the burden shifts to the non-mova nt to “come f

orwa rd with ‘spec ific fa cts showingthat there is agenuine issue for trial .’” Id. at 587 (c iting F ed. R. Civ. P. 56(e) ) (e mphasis in origina l). III. DISCUSS ION The princ ipal question now befor e the Court is whethe r the District is entitled to attorney s’ fe es and c osts ex pended in litigating the O ctober Due Proc ess Complaint and in prepa ringfor a nd attendingthe Novembe r Due Process He aring . For a loca l educational ag ency to preva il in an action for attorney s’ fe es, it must establish that it was the pr evailingparty , and either: (1) the attorne y (s) filed a complaint that was “ frivolous, unrea sonable, or w ithout foundation,” 20 U .S.C. § 1415(i)(3)(B )(i)( I I ); or (2) the attorne y (s) “ continued to litigate afte r the litigation clea

rly beca me frivolous, unre asonable , or without foundation,” 20 U.S.C. § 1415(i)(3) (B )(i)( I I ); or (3) the attorne y (s) brought the complaint for a n “improper

purpose, suc h as to hara ss, to cause unne cessa ry delay , or to nee dlessly

incre ase the cost of litiga tion,” 20 U.S.C. § 1415(i)(3)(B )(i)( I I I ). The D istrict seeks attorne y s’ fe es on all three g rounds. A. The District is a Prevailing Party The Court must first determine whether the District is a “pr evailingparty .” See20 U.S.C. §§ 1415(i)(3) (B )(i)( I I )-( I I I ). The D .C. Circuit has articulate d a thre e-pa rt test to establish preva iling par

ty status: “(1) ther e must be a ‘ court-or dere d chang e in the leg al re lationship’ of the parties; (2) the judg ment must be in favor of the par ty seeking the fe es; and (3) the judicial

16pronounce ment must be acc ompanied by judicial relief

.” District of Columbia v. Straus , 590 F.3d 898, 901 ( D.C. Cir. 2010) (citing Thomas v. Nat’l Sci. Found. , 330 F.3d 486, 492- 93 (D.C. Cir. 2003)). Althoug h the test was initially develope d “in conne ction with reque sts for fe es by plaintiffs;” the D.C. Circuit has a dvised that it also applies to fee reque sts by defe ndants as we ll, althoug h in such circ umstances, only the latter two r equire ments must be satisfied. Id. (“A lthough we have de veloped this test in connec tion with requests for f ees by plaintiffs, we have a pplied the latter two r equire ments to requests by defe ndants as we ll.”); see also District of Columbia v. Nahass , 699 F. Supp. 2d 175, 182 (D.D .C. 2010) (“where a def endant is see king to establish ‘pre vailing pa

rty ’ status, that party

need not e stablish a court-or dere d chang e in the leg al re lationship of the parties” ). The Court finds that the District qua lifies as a pr evailingparty . Be cause the District was the def endant be low, the Court need only deter mine whether

the latter two pr ong s of the thre epart test outlined above are met. Her e, the De cembe r HOD dismiss ed with pre judice the Oc tober Due Proc ess Complaint filed by Def endants on T.P.’s beha lf ag ainst the District. This decision in the District’s favor ea sily satisfies both the sec ond and third prong s of the test set for th in Straus beca

use the judg ment was in favor of DCPS and DCPS was gr anted judicial r elief. District of Columbia v. W est , 669 F. Supp. 2d 273, 278 (D.D .C. 2010) (Ke nnedy , J .) (“ Courts in this and other Circuits have deter mined that a He aringOffic er’ s dismis sal on the merits of a due proce ss complaint that has not been a ppeale d war

rants a f inding that a

state educ ational ag ency

or local educ ational ag ency

is a preva iling par

ty .”) ( citing District of Columbia v. Ijeabuonwu , 631 F. Supp. 2d 101, 105 (D.D .C. 2009)); see also Nahass , 699 F. Supp. 2d at 182 (sa me).

17Def endants’ a

rguments to the contrar

y are without merit. In particula r, De fenda

nts argue that the District is not a pre vailing pa rty beca use “the Hea

ringOffic er w as wrongin her assessment of the fac ts” in this case, such that the Dec ember HOD wa s decide d in error . Def s.’ MSJ at 12-15; De fs.’ Opp’ n at 10-15. De fenda nts, however , did not appeal the D ece mber HO D, and that dec ision dism issing the a ction in the District’s fa vor is final. While Defe ndants may continue to believe the Dec ember 2008 HOD wa s in error , it nonetheless re mains that the decision is final and a

war ded judg ment in the District’s favor with ac company ing judicia l relief. The District ther efor e qualifie s as a pr evailingparty under the I DEA’s f

ee- shifting pr ovisions. B. The October D ue Proce ss Complaint

Filed by De

fendants W

as Not Frivolous, Unreasonable, or W

ithout Foundati on A pre vailing loc al educ ational ag ency is entitled to attorney s’ fe es if, inter alia , “the attorney . . . files a c omplaint or subsequent ca use of a ction that is frivolous, unrea sonable, or without foundation.” 20 U.S.C. § 1415(i)(3)( B) (i)(I I ). The D istrict contends in Count Iof its Complaint t hat it is entitl ed to attorne y s’ fe es “[b]ecause D efe ndants filed the due proce ss complaint alleg ing untimely schedulingof a me etingthat was not sche duled in a timely manner solely due to Def

endants’ own interfe renc e, and the ir alleg ations that other re quirements of the September 18, 2008 H OD had not be en fulfilled we re a lso the result of their own interfe renc e with the schedulingof the MDT/I EP meeting s,” such that “ Def endants’ O ctober

7, 2008 due proce ss complaint was fr ivolous, unreasona ble and/or w ithout foundation.” Compl. ¶ 48. As explained above, the September H OD re quired DCPS to “convene an I EP/placement meetingwithin 5 day s of re ceivingthe [Vineland Assessment].” A.R. at 132. The District

rec eived the V ineland Assessment on Septembe r 25, 2008. De fs.’ Stmt. ¶ 9. Accor dingly ,

18DCPS was re quired to conve ne the I EP/placement mee ting by no later tha

n September 30, 2008. As of Oc tober 7, 2008, the D istrict had not y et contac ted Def endants to sche dule the I EP/MDT meeting , and De fenda

nts theref ore f iled the Octobe r Due Process Complaint at issue. Pl’s St mt. ¶ 8; see also A.R. at 15-20. De fenda nts alleg ed on T.P.’s beha lf that DCPS had failed to conve ne the MDT/I EP meeting within five day s of re ceivingthe Vineland A ssessment, as re quired by the September H OD and c onsequently had also fa iled to provide T.P. with an appr opriate pla ceme nt or deve lop an appr opriate I EP, as require d by the September

HOD. A.R. a

t 17. I t is therefor e clea r that the princ ipal impetus in filing this second complaint wa s DCPS ’ fa ilure to timely

convene the I EP/placement mee ting a s require d by the September

HOD. As suc h, the Court does not find that the Octobe r Due Process Complaint was fr ivolous or without foundation. Nor was the filing of the Oc tober Due Process Complaint wholly unrea sonable. While it may have be en sensible for D efe ndants to confe r with the District bef ore f iling their c omplaint, “the Court is

unawa re of any case authority

— and the District c ites none — standingfor the pr oposition t hat a party has either

a duty to confe r with the opposingparty befor e filinga due pr ocess c omplaint, or a duty to abstain for a

g iven amount of time bef ore a ctingon a per ceive d denial of a n education service or bene fit.” Nahass , 699 F. Supp. 2d at 184. The District’s a

rguments to the contrar

y are without merit. Specifically , the District argues that the Oc tober Due Process Complaint “should never have be en filed” as the “De fenda nts knew at the time . . . that the onlyrea son the I EP meeting was de layed wa s beca use they had pre viously

reque sted that DCPS afford them seve n to ten business day s advanc e notice befor e sche duling a

meeting— there by

automatically

prec luding DCPS from conve ning a meetingwithin five day s.” Pl.’s MSJ at 20. As noted a bove, the pa

rties dispute whethe r 19Def

endants in fa ct re quested that they be provide d seven to ten da y s advanc e notice. See supra at p. 19 n. 4. On re view of the administrative re cord in this case , the Court finds that the evidenc e does not support the conc lusion that Defenda nts made such a

reque st in thi s particular

case . The only testimony

on this pointindicated that, a s a g ener al matter, I DEA c ounsel ty pically reque st that DCPS provide seve n to ten day s advanc e notice; ther e is no evidenc e in the re cord, how ever , that these spec ific De fenda nts made such a

reque st in thi s particular

case and, indee d, the only evidenc e in the re cord indicates Def endants re quested the me etingbe conve ned within the time limit s set forth in the September HOD — i.e., f

ive day s within rece ipt of the Vineland Assessment. SeeA.R. at 114 (re questing that, “[p] er the HOD, . . . DCPS convene an MDT/I EP meetingwithin the allotted timeframe” ). The Court, howe ver, ne ed not re solve this disput e as e ven assumingDef endants made such a r equest, this fac t by itself does not rende r the filingof the Oc tober Due Process Complaint frivolous, unrea sonable, or w ithout foundation. As the Court understands the D istrict’s argument, the District asser ts that this allege d reque st by Def endants for

advanc e notice e x tended the time period within which the D istrict was re quired to conve ne the I EP/placement mee ting under the September H OD. That is, because the District was r equire d to give seven to ten da y s advanc e notice, the I EP/placement mee ting c ould not have occ urre d within the five day s order ed in the September H OD and, inde ed, could not have occur red a ny earlier than seve n to ten day s afte r DCPS rece ived the Vinela nd Assessment. SeePl.’s MS J at 20. Howe ver, e ven assuming that Def endants made such a r equest for advanc e notice a

nd that this informal ag ree ment trumped the Septembe r HOD require ment that a mee ting be convene d within five day s — two assumptions which by

themselves ar e proble matic — this argument does not mean that the

20District’s conduc t was timely . Ten da y s from the date of the D istrict’s rec eipt of the Vine land Assessment on September 25, 2008, was Oc tober 5, 2008. It is undisput ed that the District did not convene the I EP/placement mee ting, let a lone contac t Defe ndants, by October 5, 2008, or indeed by October 7, 2008, the date on which the complaint wa s filed. 5 In a fina l effor

t to demonstrate that the Oc tober Due Process Complaint was nonethe less frivolous when f

iled, the District emphasizes in its Moti on for Summary J udg ment that the October Due Proc ess Complaint also contained the a lleg ation that DCPS failed to provide appropr iate educ ation service s to T.P. for the 2006-2007 a nd 2007-20008. Pl.’s MSJ at 21-23. The District e mphasizes that this same a lleg ation had alr eady been litig ated a

nd decide d in T.P.’s favor by the September

HOD. Id. The District ther efor e urg es that inclusion of this claim rende red the October

Due Proc ess Complaint frivolous, unreasona ble, or without foundation

The District c ounters that the Court should consider only business day s, not calenda r 5 day s, in calcula

ting the te n day

time frame at issue bec ause it is “DCPS’ prac tice to count business day s, not weeke nds and holiday s.” Pl.’s MSJ at 20 n.5. The Court notes that this argument is advanc ed solely in a footnote in the District’s Motion for Summary J udg ment, and the District has not off

ere d any supporting le g al authority ; indeed, the District a dmits t hat the hear ing of

fice r her self dete rmined that the a pplicable time per iod should be calc ulated using cale ndar da

y s. Id. Given the District’ s failure to fully explain and support this arg ument, which it addresse d solely

in a footnote, the Court ne ed not consider it here. See H

utchins v. District of Columbia , 188 F.3d 531, 539 n. 3 ( D.C. Cir. 1999) (“We ne ed not consider cursor y arguments made only

in a footnote . . . .” ). Reg ardle ss, even if the Court were to consider this argument, which it does not, it would not alter the Court’s dec ision herein. The District appea rs to argue that its conduct was timely beca use: (a) DCPS first contac ted Def endants on Oc tober 9, 2008, which wa s only

nine business day s after

rec eipt of the Vine land Assessment; (b) pur suant to Def endants’ a lleg ed re quest for se ven to ten business day s advanc e notice, the ear liest the District could have convene d the meetingwas Oc tober 10, 2008; there fore (c) DCPS timely contac ted Def

endants be fore the expiration of the ten business day time period for

conveningthe I EP/placement mee ting. This re asoningsuffe rs from a key flaw, how ever , as it conflate s the District’s obliga

tion to conve ne the I EP/placement mee ting with its obliga tion to give adv ance notice of such mee ting. I ndeed, by waitingnine business day s to contact De fenda nts, the District in fac t ensured that the meetingcould not convene within the ten business day period that the District contends is at issue. 21when f

iled. Id. As an initial matter, this particular asser tion is notincluded in the District’s Complaint. R ather , in alleg ing that the October Due Proc ess Complaint was frivolous when filed, the District foc used solely on the timing issues discussed a bove and did not alleg e that the inclusion of this additional claim relatingto the 2006-2008 school y ear s was a ba sis for finding that Def endants a cted unr easona

bly

. SeeCompl. ¶¶ 46-49. I t is well established that a pa rty may not amend its complaint or broa den its claims throug h summary judgme nt briefing

. See Sloan v

. Urban Titl e Serv

s., Inc., 652 F. Supp. 2d 51, 63 (D.D .C. 2009) (“Plaintiff c annot amend he r complaint by

. . . filing a

motion for summary

judgme nt; she must amend her c omplaint in

acc ordanc e with Fe d. R. Civ.P . 15(a) .”); see also DSM C Inc. v. Conv era Corp. , 479 F. Supp. 2d 68, 84 (D.D.C. 2007) ( reje ctingthe plaintiff’s attempt to broaden c laims and there by amend its complaint in oppositi on to defe ndant’s motion for summary judgme nt). Reg ardle ss, even if the Court were to consider this argument, the Court is not persuade d that the inclusion of this single additional alleg ation does not rende r the Oc tober Due Process Complaint wholly frivolous or

unrea sonable. This is particula rly so g iven that, at the time the Oc tober Due Process Complaint was filed, the District had not y et taken the steps nece ssary to remedy

its proven fa ilure to provide a ppropriate educa

tion services to T.P. for the 2006-2007 and 2007- 2008 school y ear s. The Court there fore finds that the filing of the Oc tober Due Process Complaint was not frivolous, unrea sonable, or w ithout foundation. I t may be, as the hear ing of

fice r conc luded in the Dec ember

HOD, that the subse quent delay in schedulingthe I EP/placement mee ting a fter D CPS made initial contac t with Defe ndants was solely due to Def

endants’ own schedulingpref ere nces, g iven that the De fenda

nts rejec ted the ea

rlier available dates and propose d the later October 31, 2010 date. How ever , at the time Def endants filed the October Due Proc ess Complaint, the

22District had fa iled to timely schedule an I EP/placement mee ting a s require d by the September HOD, a nd, as a c onsequenc e of this fa ilure,T.P. rema ined in an inappr opriate pla ceme nt (Aiton) without an appropr iate I EP. The Court there fore DENI ES the District’s [12] Motion for Summary J udg ment and GRANTS De fenda nts’ [13] Motion for Summary J udg ment as to Count Iof the District’s Complaint. C. Defendants’ Continued Litigati on of the October D ue Proce ss Complaint

W as Not Frivolous, Unreasonable, or W ithout Foundati on Alternatively , a pre vailing loc al educ ational ag ency is entitled to attorney s’ fe es if, inter alia , “the attorney

. . . continued to litigate afte r the litigation clear ly beca me frivolous,

unrea sonable, or w ithout foundation.” 20 U.S.C. § 1415(i)(3)( B) (i)(I I ). The D istrict contends in Count I Iof its Compl aint that it is entit led to attorney s’ fe es bec ause “ Def endants c ontinued to litigate a fter D CPS schedule d an MDT/I EP meeting , held an MDT/I EP meeting and other wise fulfilled all re quirements of the September 18, 2008 H OD.” Compl. ¶ 51. The Court does not ag ree . At the time of the Nove mber Due Process He aring , DCPS had not y et issued a notice of place ment, as re quired by the September

HOD. It was also re adily appar ent that an outstanding dispute remaine d betwee n the par ties as to the appr opriate pla ceme nt for T.P. The pa rties proce eded to litigate their dispute as to plac ement at the N ovember Due Proc ess Hea

ring , and the hear ing of

fice r ruled in the D istrict’s favor in the Dec ember

HOD, f inding that DCPS’ proposed place ment at Tyler wa s appropr iate. Ac cording ly , as there rema ined a substantive dispute betwee n the par

ties at the time of the Nove mber Due Process He aring , the Court finds that the Def endants’ c ontinued litigation of the O ctober Due Proc ess Complaint was not frivolous,

unrea sonable, or w ithout foundation. Cf. Ijeabuonwu , 631 F. Supp. 2d at 105 (f inding c ontinued

23litigation was f rivolous where “def

endants c ontinued with the administrative hea ring , even though no substantive disputes remained betwee n them and DCPS and no further relief could be provided” ) (e mphasis in origina l). The Court is not persuade d by the District’s ar g uments to the contrar y . First, the Distirct contends that De fenda

nts’ conduct wa s nonetheless fr ivolous, unreasona ble, and unf

ounded beca use “D efe ndants forc ed DCPS to participate in two administrative hea ringsessions to lit igate the question of whe ther or not DCPS had conve ned an I EP meetingto reviewthe Vineland assessment for

T.P. or had deve loped an I EP for her based upon that assessment, knowingthat an I EP meeting had in fa ct bee n convene d and an I EP had indeed be en deve loped.” Pl.’s MSJ at 25. This assertion, howe ver, is base d on an inac curate cha rac terization of the Novembe r Due Process Hea ring . As revie w of the tra nscript for the November Due Proc ess Hea

ringdemonstrates, the focus of that hear ing w as not

on the question of whe ther a n I EP/placement mee ting ha d been

convene d and an I EP developed. Rathe r, as e x plained above , the administrative hea ringfocuse d almost ex clusively

on those substantive disputes that remaine d betwee n the par ties at that time — namely , the re ason for

the delay in conveningthe I EP/placement mee ting, whe ther that de lay harme d T.P., and the appr opriatene ss of DCPS’ proposed place ment. Whil e De fenda nts ultimately

did not prevail on either

issue based on the hear ing of fice r’s c onclusion that Def endants ha d failed to pre sent sufficie nt evidence on these issues, the Court does not find that this just ifies attorne y s’ fe es in this case. Second, the District a

rgues that De fenda

nts’ continued litigation of the claim that DCPS failed to de velop an a

ppropriate I EP was frivolous and w ithout foundation as Def endants fa iled to present a

ny evidenc e at the N ovember Due Proc ess Hea

ringto challeng e the va lidity of the

24I EP. Pl .’s MSJ at 25-26. The District is corre ct that Def endants did not arg

ue at the N ovember Due Proc ess Hea

ringthat the Octobe r I EP was inappropr iate nor did De fenda nts present a

ny evidenc e on this point. W hile the more e x pedient cour se of a ction may have be en for

Def endants to withdraw this specific claim at the he aring , the Court does not find that their fa ilure to do so by itself supports a findingthat the District is entitled to attorney s’ fe es. As discussed a bove, a substantive dispute remaine d betwee n the par ties as to other c laims for re lief in the Oc tober Due Process Complaint, and the dec ision to continue to li tigate the complaint wa s theref ore ne ither frivolous or without foundation. See Nahass , 699 F. Supp. 2d at 184 (f act that one of the c laims had bee n rende red moot by the time of the a dminist rative he aringdid not mean that attorne y s acte d frivolously

or unre asonably

when they

continued to litigate the due pr ocess c omplaint beca use the other

reque sts for re lief in the complaint re mained in dispute). Third, the District ar gues that althoug h a substantive dispute re mained betwe en the parties a s to the appropr iate plac ement for T.P., this di spute did not justi fy continued litiga

tion of the Octobe r Due Process Complaint beca use no final plac ement dec ision had y et bee n made a nd any substantive challeng es to the plac ement dec ision would have bee n require d to be the subjec t of a ne w due pr ocess c omplaint. Pl .’s MSJ at 26. Acc ordingto the District, “[w]hi le Def endants soug ht to focus the Nove mber he aringsessions on the proposed plac ement, any question with that place ment decision wa s beyond the scope of the Septembe r 18 HOD and the Oc tober 7 complaint.” Id. Significa ntly , howeve r, the District made no such ar g ument to the hearing office r below. B oth parties’ e vidence and testimony at the Nove mber Due Process He aring focuse d larg ely

on the appr opriatene ss of DCPS’ proposed place ment, without objection by either pa rty . The he aringoffice r her self desc ribed the matter as a “plac ement ca se” a

nd

25rec og nized that T.P. and her par ents soug ht relief in the f orm of an “ order

[as to] place ment.” See11/19/08 Tr. at 71 (he aringoffice r desc ribed the matter as a “plac ement ca se” a

nd rec og nized that T.P. and her pa

rents soug ht relief in the f orm of an “ order

[as to] place ment”). Consistent with that understanding , the Dec ember HOD made a fina l ruling on the issue, finding that DCPS ’ proposed plac ement at Ty ler wa s appropr iate. A.R. at 9-10 (D ece mber HO D). That decision was not appe aled by

either pa rty on the basis that it was beyond the hea ringoffice r’s a

uthority

. Consequently , the issue was f inally resolved, a

nd T.P. is now attending T yler. De fs.’ Resp. ¶ 5. Moreove r, by

failingto make a f

inal place ment decision, DCPS was in violation of the September H OD, which r equire d DCPS to “issue a notice of plac ement within 5 day s of the place ment deter

mination meeting.” A.R. at 132 (September HOD) . DCPS there fore had not “fulfilled a ll requireme nts of the September 18, 2008 HOD,” as it now claims. Compl. ¶ 51. The District attempts to argue that the f ailure to issue the f

inal place ment decision wa s due solely to Def endants’ own failure to cooper ate with DCPS. I n particula r, the District c ontends that no final plac ement notice w as issued bec ause D CPS was wa iting for T.P.’s pare nt to visi t Tyler a nd to advise DCPS whether that plac ement wa s appropr iate. Pl.’s MSJ at 26-27. The Court notes, howeve r, that the e vidence in the rec ord indicate s that DCPS itself understood at the time of the October 31, 2008 I EP/placement mee ting that T.P.’s pa rents had r ejec ted the propose d place ment at Tyler. See A.R. at 153 . I f that wa s the ca se, there was no ne ed for DCPS to wait for a

further response from the pa

rent. Reg ardle ss, the September H OD found that T.P.’s curre nt placeme nt in Aiton was inappropr iate and pla ced the burden on D CPS to issue a notice of appropr iate place ment within five day s of the mee ting. The Court is not persuaded by the District’s argument that it was excused from this obligation because of the pa rent’s c onduct in this case,

26such that the District c ould refr ain from issuinga fina l notice of plac ement and a llow T.P. to

rema in in Aiton indefinitely , a plac ement that all par ties ag ree was inappr opriate f or the student, solely beca use the pa rent did not visit Ty ler. As DCPS had not fully complied with the September H OD and a

dispute remaine d as to an a ppropriate place ment for T.P., De fenda nts’ continued litigation of the Octobe r Due Process Complaint was not frivolous, unre asonable , or without foundation. Acc ording ly , the Court DENI ES the District’s [12] Motion for Summary J udg ment and GRANTS De fenda nts’ [13] Motion for Summary J udg ment as to Count I Iof the District’s Complaint. D. The District Has Not Show n that Defendants Initiated and Continued to L itigate the Octobe r Due Proc ess Complaint for Improper Purposes Finally , a pre vailing loc al educ ational ag ency is entitled to attorney s’ fe es if, inter alia , “the pa rent’s c omplaint or subsequent ca use of a ction was pre sented for any improper pur

pose, such as to har ass, to cause unnece ssary delay , or to nee dlessly

incre ase the cost of litigation.” 20 U.S.C. § 1415(i)(3)(B )(i)( I I I ). In Count I I Iof the Complaint, the District alleg es that “O ctober 7, 2008 due proc ess complaint was f iled for a n improper pur

pose, such a s to harass, to ca use

unnece ssary

delay , or to nee dlessly

incre ase the cost of litigation.” Id. ¶ 56. The D istrict’s sole argument in support of this claim, however , is that beca use De fenda

nts acted f

rivolously

or

unrea sonably

in filing the O ctober

Due Proc ess Complaint and in continuing to litigate the alleg ations therein, it is evident that De fenda nts acted in ba d faith in this case. SeePl.’s MS J at 30. As the Court has alr eady deter mined that Def

endants did not ac t frivolously or unre asonably in initi atingand litigating the O ctober Due Proc ess Complaint, Count I I Iof the District’s Complaint m ust fail as we ll. Accor dingly , the Court DENI ES the District’s [12] Motion for

27Summary

J udg ment and GRANTS De fenda nts’ [13] Motion for Summary J udg ment as to Count I I Iof the District’s Complaint. E. Defendants’ M

otion for Summary Judgme nt is Denied Insofar as Defe ndants Appear to See k to Vacatethe Dec embe r HOD and Re quest an Award of Attorneys’ Fe es and Costs Finally , the Court turns to Defe ndants’ Cross-Motion for Summary J udg ment. As set forth ther ein, Def

endants a rgue that the District br oug ht the instant lawsuit “as a f orm of intimi dation,” and D efe ndants are there fore entitled to an awa rd of “ attorney s’ fe es and c osts for this action and the a dminist rative pr ocee dings.” Def s.’ MSJ at 19. Def

endants, howe ver, ha

ve not provided the Court with any leg al authority

supporting the ir reque st for an a war d of attorney s’ fe es or c osts. To the ext ent Def endants see k an aw ard of

attorney s’ fe es incurr ed in association with the Oc tober Due Process Complaint and the Nove mber Due Process He aring , Def endants we re not a

preva iling par

ty , as re quired for

an aw ard of

attorney ’s fe es under

20 U.S.C. § 1415(i)(3)(B )(i)( I ). Alterna tively , to the extent Defenda nts seek an a

war d of attorne y s’ fee s in connec tion with the inst ant litigation, De fenda nts have not provided a

sufficie nt leg al basis to overc ome the g ener al rule a g ainst awa rdingattorney s’ fe es to succe ssful liti g ants. See Alyesk a Pipeline Serv . Co. v. W ilderness Soc’y , 421 U.S. 240, 247 (1975); see also Nahass , 699 F. Supp. 2d at 185 (D .D.C. 2010) (re fusingdefe ndants’ re quest for attorney s’ fe es). More over, while Def endants c ontend the District brought this sui t for improper rea sons, “the District had a

rea sonable be lief that it could preva il in thi s liti g ation, in light of the H ear ing O ffice r’s e rrone ous but understanda

ble conc lusion” that Defe ndants had c ontinued to liti g ate a fter it wa s appar ent they wer e entitled to no re lief. Nahass , 699 F. Supp. 2d at 185.

28Def endants a lso appea

r to seek a

n order “vac at[ing] the Hear ing O ffice r’s De cision enter ed [on] Dec ember

8, 2008.” De fs.’ MSJ at 19. Ag ain, Def endants provide no statutory basis or any

case law to support this request. While Defe ndants wer e entitled to bringan ac tion in either state or

fede ral c ourt cha lleng ing the Dec ember HOD pur suant to 20 U.S.C. § 1415(i)(2) , they

did not do so and the Court is without l eg al authority to vaca te that dec ision in the pre sent ac tion. Accor dingly , Def endants’ [13] Mot ion for Summary J udg ment is DENI ED insofar a s Defe ndants appe ar to see k to vaca te the De cembe r 8, 2008 He aringOffic er D ecision and an a war d of attorne y s’ fe es and c osts. IV. CONCLUSION For the re asons set for

th above, Plaintiff District of Columbia’s [12] Motion for Summary J udg ment is DENI ED and D efe ndants’ [13] Motion for Summary J udg ment is GRANTED-INPART and DENI ED-I

N-PART. Specifica lly , Def endants’ Motion is GRANTED insofa r as Def endants c ontend that the District of Columbia is not entitled to attorney s’ fe es as a sserted in Counts I , I I , and I I Iof the Complaint, but is DENI ED insofar as De fenda

nts appea r to seek to

vacate the De cembe r 8, 2008 He aringOffic er D ecision and a n awa rd of attorney s’ fe es and c osts. The instant ca se is dismiss ed in its entirety . An appr opriate or der ha s previously been issued. Date: October

4, 2010 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

29