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Ward Bucher, et al v. District of Columbia

April 11, 2011

WARD BUCHER, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiffs Ward Bucher and his minor son J.B. seek to collect attorneys' fees and other costs incurred in bringing a successful administrative action under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. Defendant is the Government of the District of Columbia.*fn1 This matter is before the Court on Plaintiffs' Motion for Summary Judgment. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Summary Judgment is granted in part.

I. BACKGROUND

A. Factual History*fn2

Plaintiff J.B., now nine years old, is "an intellectually gifted child with a problem with work production due to problems with fine motor control and visual motor integration." H.O. Decision 6, ¶ 12. In the past, J.B. has scored in the 99th percentile for his age group in ability to reason, verbal skills, and vocabulary. Id. at 7, ¶ 17. His intellectual reasoning skills have scored at or above the 95th percentile. Id. J.B. has also shown above average ability in non-verbal skills. Id. at 8, ¶ 18.

However, J.B. suffers from a number of disabilities which have "made it difficult for [him] to sustain focused attention and effort as well as to regulate his behaviors." Id. at 8, ¶ 19. These disabilities include Attention Deficit/Hyperactivity Disorder ("ADHD"), with which J.B. was diagnosed in 2007, and an auditory processing learning disorder and sensory integration disorder, with which J.B. was diagnosed in 2008. Id. at 6, ¶ 12. J.B. has also "exhibited behavioral issues in the classroom, including . . . aggression, non-compliance, inability to accept any criticism . . . and difficulty socializing." Id. at 10, ¶ 28. These disabilities would cause J.B. to "struggle in a typical school environment." Id. at 12, ¶ 35.

In 2007, when J.B. was approximately six years old, he was asked to leave his Montessori preschool because of his behavioral problems. Id. at 4, ¶ 2. J.B. was then asked to leave his next school, which was in Guatemala, due to aggression toward other students. Id.

In May 2008, J.B.'s father attempted to enroll him in his neighborhood school run by the District of Columbia Public Schools ("DCPS"). Id. at 5, ¶ 4. The school refused. Id. On May 8, 2008, J.B.'s father sent the school a letter explaining his son's disabilities and requesting evaluations and a meeting to discuss accommodating J.B.'s needs. Id. at 5, ¶ 5. Finally, and only after intervention by the DCPS Ombudsman's Office at the request of J.B.'s parents, the school scheduled a meeting for August 20, 2008. Id.

The notice J.B.'s parents received for the August 20 meeting did not indicate that "this meeting would be an eligibility meeting, or even that the neighborhood school staff planned to discuss evaluations and eligibility." Id. at 5, ¶ 8. At the meeting, the school staff informed J.B.'s parents that they would not find J.B. eligible for special education until J.B. had attended a general education classroom for ten days. Id. at 5-6, ¶ 8. The staff did not address the parents' request for evaluations. Id. at 6, ¶ 8.

Because J.B.'s parents believed that placing him "in a general education classroom for even a short time would be traumatic" and feared "another behavioral incident," they enrolled J.B. in a non-public school for the 2008-2009 school year. Id. at 6, ¶ 9. J.B.'s parents also paid for private occupational therapy, tutoring, and neurological and auditory evaluations for J.B. Id. at 6, ¶ 10.

On March 31, 2009, Plaintiffs filed a Due Process Complaint alleging that DCPS had denied J.B. a FAPE. Id. at 2. J.B.'s hearing lasted four days, during which time Plaintiffs called nine witnesses and submitted numerous exhibits. Pls.' Statement of Facts ¶¶ 8-10. On June 18, 2009, the Hearing Officer determined that, the testimony overwhelmingly established that [J.B.] is eligible for special education as a student with multiple disabilities. Yet, DCPS ignored Petitioner's repeated requests for an eligibility meeting. When finally forced to hold the meeting by the DCPS Ombudsman's Office, DCPS failed to provide Petitioners adequate notice that they would discuss [J.B.]'s eligibility for special education.

Then, after discussing [J.B.]'s disabilities and need for specialized instruction, the team failed to make an eligibility determination or decision about the request for evaluations. Instead, the DCPS team decided to throw the Student into a general education classroom to see if he 'would sink or swim.' . . . DCPS denied [J.B.] a free, appropriate, public education in failing to find [him] eligible for special education.

H.O. Decision 16-17. The Hearing Officer ordered DCPS to reimburse Plaintiffs for the costs of J.B.'s tuition for 2008-2009 and the tutoring and evaluations undertaken at Plaintiffs' expense, and to pay for J.B. to continue to attend his non-public school for the 2009-2010 and 2010-2011 school years. Id.

After the Hearing Officer issued the decision, Plaintiffs submitted a petition for attorneys' fees and costs to DCPS, seeking $50,155.00. Pls.' Statement of Facts ¶ 30. DCPS reimbursed Plaintiffs in the amount of $26,436.00, resulting in a difference of $23,719.00 between what Plaintiffs believe they are owed for the total of attorneys' fees and costs relating to J.B.'s petition and what Defendant has paid. Pls.' Statement of Facts ¶¶ 32-33. Defendant concedes that it owes Plaintiffs $1779.47 in fees. Def.'s Opp'n Ex. A, at 1. Therefore, costs of $21,939.53 relating to J.B.'s case remain in dispute.

B. Procedural History

On October 1, 2009, Plaintiffs filed their Complaint [Dkt. No. 1] seeking the outstanding balance from their fee petition. On November 23, 2009, Defendant filed its Answer [Dkt. No. 9]. On December 17, 2009, Plaintiffs filed a Motion for Summary Judgment [Dkt. No. 12]. On June 25, 2010, Defendant filed its ...


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