Attorney’s Fees and IEEs: A School District May Still Have to Pay Parents’ Attorney’s Fees Despite Voluntarily Withdrawing Its Own Due Process Complaint to Defend Its Assessment

On May 6, 2013, the United States District Court for the Northern District of California denied a district’s motion to dismiss an attorney’s fees action in J.B. v. San Jose Unified School District, 2013 WL 1891398, No. C-12-06358 SI (N.D. Cal. May 6, 2013). This ruling is particularly relevant to all school districts which are currently receiving increasingly more requests for independent education evaluations (“IEEs”) than in past years. In short, the Court ruled that the withdrawal of the San Jose Unified School District’s due process hearing complaint to defend its own evaluation may have conferred on J.B. (“Student”) “prevailing party” status which would entitle him to reasonable attorneys’ fees.

In this case, Student was initially found eligible for special education services in 2005. However, in May 2011, after conducting a series of assessments, the District determined that Student was no longer eligible for special education services. After requesting, but being denied, another IEP in September 2011, Student requested an IEE at public expense. The District denied the request for an IEE and ultimately filed for a due process hearing within a mere two weeks, seeking orders from the Office of Administrative Hearings (“OAH”) that 1) Student was not eligible for special education and 2) the District was not required to fund an IEE.

While the District’s due process case was pending, Student obtained his own private evaluation which found that Student had severe ADHD and depression. The IEP team met on June 13, 2012, to review the privately funded evaluation, and as a result of those findings found Student eligible for special education services. Six months after it filed for hearing, the District withdrew from its complaint the issue of Student’s eligibility for special education, but continued to assert that it properly denied Student’s request for an IEE. With only four days before the hearing was scheduled to begin, however, the District agreed to reimburse Student for the cost of the private evaluation. The next day, the District withdrew its due process complaint in its entirety. Student then brought this action seeking attorney’s fees incurred in defense of the District’s OAH hearing.

The Court found Student the “prevailing party” even though the underlying case had been voluntarily withdrawn by the District. In reaching this decision the Court noted that this case was “unique in its procedural posture,” as the District was the plaintiff in the OAH action even though Student was requesting the remedy of a publicly funded IEE. The Court highlighted the fact that after a year and a half of litigation Student ultimately received everything he asked for when the District reimbursed his parents for the cost of the IEE and found that he remained eligible for special education. Under these circumstances, the Court determined the District had control over both the complaint and the remedy. Additionally, Student was also successful in proving that the District was precluded from re-filing its complaint, because any subsequent due process filing to defend its own evaluation would constitute “unnecessary delay.”

Since the District voluntarily withdrew its request for a due process hearing and was deemed to be precluded from re-filing its complaint, the Court found that this change in circumstances “eliminated the right of the District to further contest the IEE” and enabled the Court to deem Student the “prevailing party.” The Court concluded that here the District’s voluntary withdrawal of its due process complaint to defend its own evaluation, coupled with the District’s ultimate reimbursement for the cost of the parentally requested IEE, constituted a material change in the legal relationship of the parties, such that Student was permitted to move forward with his fees action against the District.

What is particularly significant about this decision for school districts is the Court noted “there are special concerns for students who are forced to defend themselves against due process complaints” filed by school districts where the student has no leverage to enter into a judicially sanctioned consent decree. Here, the District did what it was required to do - file for hearing when it originally denied the IEE request - but it also offered the parents the requested remedy nearly seven months later and then withdrew its own case. Districts should be mindful of its course of action following an IEE request. Whether the district grants the IEE or initiates a due process action to defend its own evaluation, it should take action in a timely fashion so that parents are reasonably put on notice of the district’s intentions. Otherwise, courts will scrutinize the district’s progression of steps towards resolving the dispute and potentially penalize a district for not having acted much sooner, especially where parents are incurring attorney’s fees all the while.

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