United States District Court, D. Hawaii
ORDER ADOPTING IN PART, REJECTING IN PART, AND
MODIFYING IN PART THE FINDINGS AND RECOMMENDATION TO GRANT IN
PART AND DENY IN PART PLAINTIFFS' MOTION FOR AN AWARD OF
ATTORNEYS' FEES AND COSTS
C. Kay Sr. United States District Judge.
reasons set forth below, the Court ADOPTS in part, REJECTS in
part, and MODIFIES in part the Findings and Recommendation to
Grant in Part and Deny in Part Plaintiffs' Motion for an
Award of Attorneys' Fees and Costs, issued by Magistrate
Judge Chang on May 31, 2016. ECF No. 62.
Court and the parties are familiar with the extensive factual
and procedural history of this case, and the Court will not
repeat it here except as necessary.
case comes before the Court on appeal of the administrative
decision in the due process case of Derek H.
(“Student”), by and through his mother Ritako H.
(“Parent, ” and collectively with Student,
“Plaintiffs”), against Defendant Department of
Education, State of Hawaii (“DOE”). See
Findings of Fact, Conclusions of Law, and Decision
(“Decision”), Ex. A to Compl., ECF No. 1-1.
31, 2013, Parent filed a request for impartial hearing on
behalf of Plaintiffs with the State of Hawaii Office of
Administrative Hearings. Id. at 2. The request
challenged certain actions of DOE in connection with the
preparation of a November 13, 2012 Individualized Education
Plan (“IEP”) for Student. Id. at 16. It
also challenged the substantive and procedural fairness of
the IEP itself. Id. at 16-17. The case was assigned
Administrative Case No. DOE-SY1314-011 and a due process
hearing was held before Administrative Hearings Officer
(“AHO”) David Karlen on November 12-14, 2013.
Id. at 2-3.
Parent's filing of the hearing request invoked the
“stay-put” provisions of the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq., requiring DOE to fund Student's
then-current educational placement during the pendency of the
proceedings. See 20 U.S.C. § 1415(j). Pursuant
to an earlier administrative decision dated May 7, 2012 (the
“May 2012 Decision”), Student's then-current
educational placement was private school Autism Behavior
Consulting Group, Inc. (“ABC School”). ECF No. 12
at 153. The May 2012 Decision concluded that Student was
eligible to receive compensation for his attendance at ABC
School beginning in extended school year (“ESY”)
2012, and continuing through the 2012-2013 school year to ESY
2013. Id. at 155. Such compensation
“include[d] Student's education and related
expenses, including lunch and daily transportation to and
from [ABC School].” Id.
Karlen issued his Decision in DOE-SY1314-011 on February 27,
(1) Petitioners established that the DOE failed to properly
assess Student in the areas of his seizures and his hearing
prior to the November 13, 2012 IEP but that Petitioners have
not established that this was a violation of the IDEA; (2)
Petitioners failed to establish that the DOE predetermined
placement; (3) Petitioners failed to establish that Parent
was denied participation in the November 13, 2012 IEP
meeting; (4) Petitioners established that the November 13,
2012 [IEP] denied Student FAPE but that Petitioners are not
entitled to any relief; and (5) Petitioners failed to
establish entitlement to ESY services.
Under the rather unique circumstances of this case,
Petitioners are deemed the prevailing party to a limited
Decision at 43.
initiated an appeal of the Decision by filing a Complaint
against DOE in this Court on March 24, 2014. ECF No. 1.
Specifically, the Complaint indicates that Plaintiffs
“seek the review and reversal of the Decision limited
to the issue of remedy, ” which AHO Karlen had denied to Plaintiffs
despite finding that DOE denied Student a free appropriate
public education (“FAPE”). Compl. ¶ 10.
filed an Answer to Complaint and Counterclaim on April 23,
2014. ECF No. 9. On May 6, 2014, Plaintiffs filed a Motion to
Dismiss Counterclaims and Strike Affirmative Defenses,
arguing that DOE's counterclaims and defenses were both
untimely filed and deficiently pleaded under Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). ECF No. 21. On September
2, 2014, the Court issued an Order Granting in Part and
Denying in Part Plaintiffs' Motion to Dismiss
Counterclaims and Strike Affirmative Defenses
(“Dismissal Order”). ECF No. 32. The Court
dismissed DOE's counterclaims without prejudice and
struck all of DOE's affirmative defenses without
prejudice. Id. at 29. The Court instructed that
“[a]ny amendments must be filed within thirty (30) days
of the issuance of this Order, ” id. at 29-30,
but DOE never filed an amended document.
21, 2015, the Court instructed the parties to confer with one
another regarding certain outstanding transportation and
speech therapy payments Plaintiffs alleged that DOE owed. ECF
No. 42. In the event the parties could not resolve such
matters, the Court called for further briefing from the
parties representing their positions with regards to the
payments. Id. Following the submission of further
briefing the parties later submitted, the Court issued a
Minute Order on July 24, 2015 referring the matter to
Magistrate Judge Chang for purposes of settlement; failing
settlement, the Court requested findings and recommendations
from Magistrate Judge Chang regarding the same. ECF No. 45.
December 8, 2015, the Magistrate Judge issued as his findings
and recommendations Plaintiffs' Revised Findings and
Conclusions Regarding Outstanding Costs and Expenses
(“Speech Therapy F&R”), adopting
Plaintiffs' proposed findings and recommendations with
respect to $7, 689.14 in reimbursement for Student's
speech therapy expenses. ECF No. 52. However, the court
declined to award Plaintiffs their requested $1, 231.39 in
reimbursement for transportation costs, as the record failed
to establish that such services were necessary or
December 29, 2015, this Court issued an Order Adopting
Plaintiffs' [Sic] Revised Findings and Conclusions
Regarding Outstanding Costs and Expenses, and Dismissing as
Moot Plaintiffs' Administrative Appeal
(“Order”). ECF No. 53. The Court concluded that
its adoption of the Magistrate Judge's findings and
recommendations and the operation of stay-put mooted this
action. Id. at 6. The Court explained that
IDEA's stay-put provision already obligated DOE to
reimburse the costs of Student's placement at ABC School
during the administrative proceeding below and the instant
judicial appeal. Id. Because those proceedings
spanned the 2013-2014 school year - the same period for which
Plaintiffs sought reimbursement as an equitable remedy for
DOE's denial of FAPE - the Court found it was unable to
grant Plaintiffs any further “effective relief”
in the “real world.” Id. (citing
Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub.
Sch., 565 F.3d 1232, 1250 (10th Cir. 2009)).
January 12, 2016, Plaintiffs filed a Motion for an Award of
Attorneys' Fees and Costs (“Motion for
Attorneys' Fees”), requesting $67, 847.63 in
attorneys' fees and $1, 062.32 in costs. ECF No. 55.
Plaintiffs also filed a Statement of Consultation in
connection with their Motion for Attorneys' Fees on
January 28, 2016. ECF No. 56. On February 11, 2016, DOE filed
a Memorandum in Opposition to Plaintiffs' Motion for
Attorneys' Fees. ECF No. 57. Plaintiffs filed a Reply
Memorandum in Support of Plaintiffs' Motion for
Attorneys' Fees (“Reply”) on February 25,
2016. ECF No. 58. In their Reply, Plaintiffs requested an
additional $5, 120.59 for time spent litigating the fee
request. Id. at 15.
31, 2016, Magistrate Judge Chang issued his Findings and
Recommendation to Grant in Part and Deny in Part
Plaintiffs' Motion for an Award of Attorneys' Fees
and Costs (“F&R”). The F&R recommends
that the Court award Plaintiffs $23, 509.94 in attorneys'
fees and $491.88 in costs. Id. at 32. Plaintiffs
filed their Objections to Magistrate Judge's F&R
(“Objections”) on June 14, 2016. ECF No. 63. On
June 28, 2016, DOE filed a Response to Plaintiffs'
Objections (“Response”). ECF No. 64.
district court reviews de novo those portions of a magistrate
judge's findings and recommendation to which an objection
is made and “may accept, reject, or modify, in whole or
in part, the findings and recommendation made by the
magistrate judge.” 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b); United States v.
Rivera-Guerrero, 377 F.3d 1064, 1070 (9th Cir. 2004);
L.R. 74.2. Under a de novo standard of review, the court
“review[s] the matter anew, the same as if it had not
been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d
1001, 1004 (9th Cir. 2006).
district court has discretion, but is not required, to
consider evidence presented for the first time in a
party's objection to a magistrate judge's
recommendation.” Akhtar v. Mesa, 698 F.3d
1202, 1208 (9th Cir. 2012) (citation omitted). It may also
consider the record developed before the magistrate judge.
L.R. 74.2. The district court must arrive at its own
independent conclusions about those portions of the
magistrate judge's report to which objections are made.
United States v. Remsing, 874 F.2d 614, 618 (9th
Cir. 1989); Benihana of Tokyo, LLC v. Angelo, Gordon
& Co., Civ. No. 15-00028 ACK-RLP, 2015 WL 5439357,
at *2 (D. Haw. Sept. 14, 2015); see also United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (“The statute makes it clear that the district
judge must review the magistrate judge's findings and
recommendations de novo if objection is made, but
not otherwise) (emphasis in original). The court reviews for
clear error those portions of the recommendation to which
there is no objection. Abordo v. State of Haw., 938
F.Supp. 656, 658 (D. Haw. 1996) (citing Campbell v. U.S.
District Court, 501 F.2d 196, 206 (9th Cir. 1974)).
to a magistrate judge's recommendation are usually
treated as non-hearing motions to be decided on the
submissions. L.R. 7.2(e). The Court finds that a hearing in
this matter is neither necessary nor appropriate. See
reducing the amount Plaintiffs requested for attorneys'
fees and costs, the Magistrate Judge found that fees incurred
during the present appeal to the United States District Court
should be excluded from the award, with the exception of some
of the fees accrued in connection with Plaintiffs' Motion
for Attorneys' Fees. F&R at 20. For hours spent on
the administrative proceedings, the court made several
deductions from the requested fees for time spent on clerical
tasks. Id. The Magistrate Judge also made an
additional 30% reduction to the fee award for time spent on
the administrative proceedings, due to the fact that
Plaintiffs achieved only partial success in those
proceedings. Id. at 24. Finally, the Magistrate
Judge denied Plaintiffs' requested copying costs because
Plaintiffs failed to sufficiently describe the need for the
copies; however, the Magistrate Judge granted Plaintiffs
leave to submit the appropriate documentation supporting such
costs by June 7, 2016. Id. at 30.
state that their Objections are “based on the fact that
the [F&R] recommend[ed] that the Court deny Plaintiff
prevailing party status for proceedings before the United
States District Court (USDC), wholesale deny any award of
attorney's fees for the proceedings before the USDC and
reduce the attorney's fees for the proceedings before the
Administrative Hearings Officer David Karlen.”
Objections at 2. Plaintiffs argue that in addition to finding
Plaintiffs to be prevailing parties in the instant
proceedings, the Court should also “award Plaintiffs
their reasonable attorneys' fees and costs as requested
pursuant to the briefing in this matter (as reduced by $8,
000.00 by Plaintiffs and absent the supplemental briefing as
required by the Magistrate Judge) for a total amount of fees
and costs of $64, 968.22.” Id. at 14. Plaintiffs
therefore appear to request the entire award they initially
sought in their Motion for Attorneys' Fees without
specifically objecting to each basis on which the Magistrate
Judge reduced the award.
Rule 74.2 states that a party objecting to an F&R must
“specifically identify the portions of the order,
findings, or recommendation to which objection is made and
the basis for such objections.” See also Seto v.
Kamai'Aina Care, Inc., Civ. No. 10-00351 SOM-BMK,
2011 WL 6779776, at *1 (D. Haw. Dec. 27, 2011) (overruling
objection that failed to specify what was being objected to
and the basis of the objection). The Court will not,
therefore, review de novo those portions of the F&R to
which Plaintiffs have not specifically objected, and will
instead review those portions for clear error. See
Reyna-Tapia, 328 F.3d at 1121; Abordo, 938
F.Supp. at 658.
Entitlement to Attorneys' Fees and Costs
case arising under IDEA, a court, in its discretion,
“may award reasonable attorneys' fees as part of
the costs . . . to a prevailing party who is the parent of a
child with a disability.” 20 U.S.C. §
1415(i)(3)(B)(i)(I). In order to attain prevailing party
status, “a plaintiff must not only achieve some
material alteration of the legal relationship of the parties,
but that change must also be judicially sanctioned.”
Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch.
Dist. No. 69, 374 F.3d 857, 865 (9th Cir. 2004)
(internal quotation marks omitted). “A prevailing party
is one who succeeds on any significant issue in litigation
which achieves some of the benefit the parties sought in
bringing the suit.” Van Duyn ex. rel. Van Duyn v.
Baker Sch. Dist. 5J, 502 F.3d 811, 825 (9th Cir. 2007).
However, the success “cannot be de minimis and must be
causally linked to the litigation brought.”
Id.; see also Me. Sch. Admin. Dist. No. 35 v.
Mr. & Mrs. R., 321 F.3d 9, 15 (1st Cir. 2003)
(stating that a prevailing party must “succeed on the
merits of a claim or defense, ” but that “a party
may be considered ‘prevailing' even without
obtaining a favorable final judgment on all (or even the most
crucial) of her claims”), cited by Park ex rel.
Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025,
1035 (9th Cir. 2006) and Shapiro, 374 F.3d at 865
(9th Cir. 2004).
Magistrate Judge found that Plaintiffs were prevailing
parties for purposes of obtaining attorneys' fees because
they had achieved “limited success at the
administrative level.” F&R at 11, 15. Plaintiffs do
not contest this finding. What Plaintiffs do contest is the
Magistrate Judge's further finding that Plaintiffs have
not prevailed in the instant appeal of the administrative
decision. See id. at 12; Objections at 2.
making this finding, the Magistrate Judge explained that
neither this Court's dismissal without prejudice of
DOE's counterclaims nor its striking of DOE's
affirmative defenses without prejudice conferred prevailing
party status upon Plaintiffs because these rulings did not
materially alter the legal relationship between the parties,
and did not serve to adjudicate the substance of the
counterclaims and defenses. F&R at 12. Furthermore, the
Magistrate Judge found, the fact that Plaintiffs obtained
reimbursement for speech therapy in the instant proceedings
did not render Plaintiffs the prevailing party because such
reimbursement was already required pursuant to DOE's
stay-put obligation. Id. The Magistrate Judge
explained, “[T]here cannot exist a change in the legal
relationship between the parties when the order concerning
reimbursement simply required Defendant to do something it
was already obligated to do pursuant to stay put.”
Id. at 13-14.
Court notes as an initial matter that Plaintiffs'
continued litigation of this case resulted in $215, 856.50 in
payments to maintain Student's ABC School placement;
however, this was not due to the legal success of
Plaintiffs' counsel. See Objections at 9
(“By initiating this instant action, Plaintiffs ensured
that Derek continued in his appropriate program and placement
[and] that they were entitled to reimbursement for tuition
and related services . . . .”); see
also Response at 7. Rather, these payments were made
pursuant to DOE's mandatory stay-put obligation, which
DOE has not contested in this case. When the DOE does not contest its
obligation to pay for stay-put, such payment cannot confer
upon an opposing party prevailing party status. See
Dep't of Educ., Haw. v. M.F. ex rel. R.F., Civ. No.
11-00047 JMS-BMK, 2012 WL 2415525, at *3 (D. Haw. May 31,
2012) (stating that the receipt of stay-put relief does not
render a party a prevailing party when the DOE does
“not dispute that it was required to pay for stay
the Court agrees with the Magistrate Judge's conclusion
that the dismissal of DOE's counterclaims without
prejudice and striking of its affirmative defenses without
prejudice did not alter the legal relationship between the
parties or confer upon Plaintiffs prevailing party status.
See F&R at 12. The Court never reached the
merits of DOE's counterclaims or defenses, and in fact