is required, the hearing officer may direct DCPS to propose an appropriate residential program and that determination is not subject to review or veto by the Residential Review Committee. While DCPS and the defendants may utilize such a committee as an internal committee to review requests for residential placements, parents may not be required to present cases before the committee or to petition the committee as though the committee represents an additional level of review under the EHA. Hearing officers need only look to DCPS and the defendants when entering determinations and requiring appropriate action. To hold otherwise would be to subject children and their parents to an additional step not required by the EHA.
Moreover, this Court can see no valid reason why a hearing officer cannot consider a placement proposed by the parents as well as one proposed by DCPS. This case is a perfect example of the delays which may be caused by limiting the consideration which hearing officers can give to parent proposals. DCPS purported to recommend the Wilson Resource Program for Daniel. The hearing officer scheduled a hearing to consider that proposal. The plaintiffs argued that Daniel requires a residential placement. In such a case, it is logical and reasonable for the hearing officer to hear evidence concerning the DCPS proposed placement and evidence concerning the plaintiffs' proposed placement. This tends to focus the issues which the hearing officer must address. Plaintiffs should not be limited to the presentation of a negative argument; rather, they may present evidence in support of alternative programs they contend the child requires. Thus, if the hearing officer determines that the DCPS proposed placement is inappropriate, she may then consider the parents' proposed placement and direct such a placement or program if satisfied that it is appropriate. Such a procedure would have the effect of shortening the overall administrative process and saving time and expense for DCPS, the parents, and the hearing officer.
This does not mean that the hearing officer must rule in favor of DCPS or the parents. Indeed, in a given case, the hearing officer may determine that neither side has made out a case and may conclude that the matter must be remanded for additional studies or the submission of additional evidence. Here, when DCPS presented no evidence in favor of its proposed placement, and the plaintiffs presented evidence favoring a residential placement, the hearing officer could have directed a residential placement without referring the matter back to DCPS if she determined that such action was warranted and if the evidence established that Daniel required a residential placement. Furthermore, the hearing officer was not limited to making a determination that Daniel requires a residential placement. If appropriate, she could have determined that a specific placement is appropriate. For example, the hearing officer could have determined that a residential placement is required and that the Vanguard School is an appropriate placement. Depending upon the facts developed at the hearing, the hearing officer could then direct the placement supported by the evidence, or afford DCPS a reasonable opportunity to propose an alternative residential placement.
Second, is the issue of attorneys' fees. While the Supreme Court has ruled that the EHA does not provide for attorneys fees and that parents may not seek such fees under the Rehabilitation Act of 1973 or the civil rights statutes, this Court does not read Smith v. Robinson, as holding that a Court, in the appropriate case, may never award attorney's fees. Rather, all the Supreme Court has done is to establish that there is no statutory basis to award fees in an EHA case. A court is still free to award fees under the exception to the "American Rule" if it determines that a party has acted in bad faith. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975); F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S. Ct. 2157, 40 L. Ed. 2d 703 (1974). As the Supreme Court has observed, "we have long recognized that attorneys' fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." F.D. Rich, 417 U.S. at 129, 94 S. Ct. at 2165. This is such a case.
DCPS commended Daniel's mother for her cooperation and assistance in seeking to place him one day, and the following day initiated a due process hearing on her failure to cooperate. The hearing officer concluded that "DCPS has wasted the time and money of both parties by pursuing this course of action with little or no evidence to substantiate its charges."
November Determination at 5. Then DCPS allowed the second due process hearing to go forward even though it was not prepared to present evidence in support of its recommended placement. That action lead to the filing of this law suit based on plaintiff's determination that further resort to the administrative process would be futile. Plaintiff should not now be required to bear the expenses of this litigation. The Court finds as a fact and concludes as a matter of law that DCPS and the defendants acted in bad faith in pursuing the administrative actions leading up to the filing of this action; accordingly, this case represents an exception to the American Rule and as such defendants shall be responsible for plaintiffs' attorney's fees and costs.
An appropriate order consistent with this Memorandum Opinion has issued.