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E.M. v. Marriott Hospitality Public Chartered High School

April 4, 2008

E.M., PLAINTIFF,
v.
MARRIOTT HOSPITALITY PUBLIC CHARTERED HIGH SCHOOL, DEFENDANT.



The opinion of the court was delivered by: Louis F. Oberdorfer United States District Judge

EMORANDUM & OPINION

INTRODUCTION

Plaintiff E.M.*fn1 seeks reimbursement for the attorneys' fees expended to litigate an administrative proceeding under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-31 (the Act), against the Defendant, a local public charter school. E.M. claims that the court should award her reasonable fees because the hearing officer ordered the charter school to pay for several independent evaluations that the officer had previously ordered the school to perform itself, which makes her the prevailing party. The court disagrees. An award of attorneys' fees is not appropriate where, as here, a student fails to avail herself of relief that minimally changes the relationship between the parties. The court will therefore deny Plaintiff's Motion for Summary Judgment [Dkt. No. 39] and grant Defendant's Motion for Summary Judgment [Dkt. No. 40].*fn2

I.

Plaintiff E.M. was enrolled as a student at the Marriott Hospitality Public Charter High School (Marriott) during the 2002-03 academic year. Marriott receives public funds from the District of Columbia to educate public school students. In early 2003, E.M. requested a due process hearing from the Special Education Student Hearing Office of the District of Columbia Public Schools (DCPS), alleging that DCPS and Marriott had failed to provide her with a free appropriate education as required by the Act. See Complaint For Attorneys' Fees And Costs ¶ 5; Feb. 13, 2003 First Amended Complaint and Request for Hearing. In her hearing request, E.M. sought,among other things, to require "DCPS and/or Marriott" to (1) perform evaluations of E.M. and (2) develop an adequate [Individualized Education Program] and provide a special education placement. Compl. ¶ 5.

A due process hearing on E.M.'s complaint was held March 5, 2003. Before the hearing, the parties entered into a settlement agreement, the terms of which were incorporated into the Hearing Officer's Determination ("First Determination"). See March 5, 2003 Hearing Officer's Determination. According to the terms of the settlement, Marriott would "perform triennial evaluations including a psycho-educational, clinical psychological and speech and language evaluation and any other evaluations recommended by the evaluators of the above assessment." Id. Marriott also agreed that "[w]ithin 45 calendar days . . . a . . . meeting [would] be held at Marriott P.C.S. to develop an appropriate IEP and determine placement." Id.

Shortly after the First Determination, counsel for E.M. submitted an invoice to Marriott seeking reimbursement for the attorneys' fees associated with the March 5, 2003 due process hearing. See Plaintiff's Report Regarding Fees Paid And Outstanding. Marriott remitted $7,222.50 to E.M., the full amount of the claim, several weeks later. Id. at 2. E.M. concedes that the attorneys' fees associated with the March 5, 2003 due process hearing have been paid in full and are not at issue in this case.

Pursuant to the First Determination, Marriott performed both a speech and language evaluation and a psychological evaluation of E.M. By letter dated May 13, 2003, however, counsel for E.M. advised Marriott that E.M. was rejecting both evaluations. Counsel stated that E.M. would not accept the speech and language evaluation because it was not "complete." She did not elaborate as to why the evaluation was not complete, except to describe the evaluation performed as a mere "screener." Counsel requested that another independent speech and language evaluation be performed, at the expense of Marriott. Counsel also informed Marriott that E.M. was similarly rejecting the psychological evaluation as "incomplete." Although the letter did not explain why E.M. believed the psychological evaluation was incomplete, it appears that E.M. was troubled that the evaluation was authored by a psychology intern instead of a licensed clinical psychologist. Counsel further stated that it was premature -- putting "the proverbial 'cart before the horse'" -- to hold a meeting to develop an IEP for E.M. before the evaluations were completed. Finally, counsel noted that E.M. had filed a second due process hearing request.*fn3

Per E.M.'s request, a second due process hearing was scheduled for June 12, 2003. While counsel for DCPS apparently received notice of the hearing (DCPS attended the hearing), counsel for Marriott did not and so did not appear. The due process hearing nonetheless went forward as scheduled, without a representative of Marriott present. The hearing officer's findings of fact and conclusions of law were contained in an interim order. See July 1, 2003 Hearing Officer's Interim Determination and Order ("Interim Determination"). The hearing officer, after "consider[ing] the representations made on the record by each counsel and documents . . . contained in the parties disclosure statements," concluded that Marriott had failed to comply with the First Determination. The Interim Determination provided that:

1. The parent may obtain evaluations ordered in the March 7, 2003 [Determination], at Marriott and/or DCPS expense.

2. Marriott and/or DCPS shall convene a multi-disciplinary team/individual educational program (MDT/IEP) meeting within fifteen (15) business days of its receipt of the independent evaluations, to comply with the directives of the March 7, 2003 [Determination].

See July 1, 2003 Interim Determination at 3 (emphasis added). The only change in the relationship between the parties arising from the Interim Determination was the option for E.M.'s parent to obtain independent evaluations and receive reimbursement from Marriott, rather than relying on Marriott's own evaluations.

Despite E.M.'s purported rejection of the two evaluations, four months passed without further evaluations. By letter dated September 24, 2003, counsel for E.M. notified Marriott that E.M. was abandoning her request for additional evaluations. Counsel explained that it had "been difficult to obtain an independent speech and language evaluation," "[d]espite the parent's best efforts," because the "speech and language evaluator has very limited availability." Given E.M.'s inability to schedule an independent speech and language evaluation, counsel acknowledged that E.M. would "use the evaluations already on file." A few weeks later, counsel for E.M. revealed that E.M. had failed to obtain "any of the independent evaluations" ordered in the Interim Determination. Again, counsel acknowledged that E.M. would have to "use the evaluations already on file" -- the very evaluations she had rejected.*fn4

By letter dated December 9, 2003, E.M. submitted a second invoice to Marriott, totaling $9,081.00, for the attorneys' fees generated litigating the June 12, 2003 due process hearing. The school, however, balked at making this payment. By letter dated January 12, 2004, Marriott notified counsel for E.M. that it was disputing the bill in its ...


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