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In an unpublished opinion, a three-judge panel of the Fifth Circuit Court of Appeals has upheld an award of attorney’s fees against the attorney who litigated a due process case under the Individuals with Disabilities Education Act (IDEA) against the El Paso Independent School District.  The due process case was brought originally by the parent of A.L., who received special education services from the district for a speech impairment.  The parent alleged that the district failed to provide promised compensatory speech services. 

The hearing officer dismissed the parent’s claim.  According to the hearing officer, the case was moot because the district was in the process of correcting the problems raised by the parent and had offered all relief that the parent sought, including attorney’s fees incurred up to that point.  The hearing officer also determined that the district was not entitled to an order overriding the lack of parent consent for a second reevaluation.  [Student v. El Paso ISD, Dkt. No. 024-SE-1007 (Hearing Officer Tomas Ramirez, III, March 19, 2008); Texas School Administrators’ Legal Digest, Nov./Dec. 2008].  

The parent filed suit in federal court challenging the hearing officer’s decision.  In turn, the district sought review of the hearing officer’s ruling that the district was not entitled to override the lack of consent for the reevaluation to determine whether A.L. was eligible for special education services.  The trial court ruled in favor of the district on each issue, finding that that A.L. no longer had a speech impairment requiring special education services and that the district was entitled to an order overriding the lack of parent consent so that it could conduct the reevaluation.  [A.L. v. El Paso ISD, Dkt. No. 3:08-CV-76-KC (W.D. Tex. 2009); Texas School Administrators’ Legal Digest, June 2009].  

Following the trial court’s decision, the district sought an order that it was a “prevailing party” in the matter under the IDEA and, thus, entitled to an award of attorney’s fees.  The trial court determined that the district was the prevailing party in the litigation and, as a result, entitled to $10,000 in attorney’s fees from the parent’s attorney, Mark Berry.  [See, M.L. v. El Paso ISD, Dkt. No. 3:08-CV-76-KC (W.D. Tex. 2009); Texas School Administrators’ Legal Digest, Jan. 2010].  Mark Berry, representing himself, appealed the attorney’s fee award against him.

The Fifth Circuit observed that the IDEA allows reasonable attorney’s fees to a state or local educational agency that is a “prevailing party.”  An award of attorney’s fees against an attorney may be awarded under the IDEA if (1) the attorney files a complaint that is frivolous, unreasonable, or without foundation; (2) the attorney continued to litigate the matter after it clearly became frivolous, unreasonable, or without foundation; or (3) the complaint was presented for an improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

In this case, the appeals court determined that Berry continued to litigate the due process complaint improperly.  First, Berry never disputed the ARD Committee’s decisions that A.L. no longer qualified for speech therapy services.  Second, Berry rejected the district’s settlement offers of full relief, including attorney’s fees the parent had incurred.  Third, Berry “stonewalled” attempts by the district to resolve the dispute.  The record showed that Berry refused to allow a reevaluation of A.L., refused to participate in the ARD Committee process, and refused the district’s efforts to provide A.L. with a FAPE. 

The appeals court stated, “Even assuming that it was reasonable to reject the District’s offers [to settle], this case presents more than a ‘refusal to settle.’  Instead, this case involves an attorney repeatedly prolonging litigation and stonewalling efforts to conclude it to the detriment of his client –A.L.—who continued receiving services under an old and unnecessary plan while the ‘grown-ups’ fought.”  The evidence showed that Berry continued to resist the district’s efforts to provide A.L. FAPE for almost a year after filing the due process complaint and ten months after the district offered all requested relief.  Because Berry continued to litigate claims after they clearly became frivolous, unreasonable, and without foundation, the appeals court upheld the $10,000 attorney’s fee award against Berry.

Click the link below to view the Fifth Circuit opinion, El Paso Independent School District v. Berry 

http://www.ca5.uscourts.gov/opinions/unpub/09/09-50841.0.wpd.pdf