United States District Court, D. Minnesota
Lynne Ogawa, Parent and Natural Guardian of T.O.F., a Minor Child; and Laura Flockencier, Parent and Natural Guardian of T.O.F., a Minor Child, Plaintiffs,
Saint Paul Public Schools, Independent School District No. 625, Defendant.,
Goetz, Esq., and Andrea L. Jepsen, Esq., School Law Center,
LLC, St. Paul, MN, on behalf of Plaintiffs.
C. Wattenbarger, Esq., and Peter G. Mikhail, Esq., Kennedy
& Graven, Chartered, Minneapolis, MN, on behalf of
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
November 30, 2017, the undersigned United States District
Judge heard oral argument on Plaintiffs Lynne Ogawa, Parent
and Natural Guardian of T.O.F., a Minor Child; and Laura
Flockencier, Parent, and Natural Guardian of T.O.F., a Minor
Child's (collectively, “Plaintiffs”) Revised
Motion for Summary Judgment [Docket No. 21], and Defendant
Saint Paul Public Schools, Independent School District No.
625's (the “School District”) Motion for
Summary Judgment [Docket No. 28]. For the reasons set forth
below, Plaintiffs' Motion is granted, and the School
District's Motion is denied.
only remaining issue in this case is the narrow one of
whether Plaintiffs were the “prevailing party” in
their administrative due process complaint brought under the
Individuals with Disabilities Education Act (the
“IDEA”), 20 U.S.C. § 1415. If so, Plaintiffs
are entitled to an award of reasonable attorneys' fees.
If they were not, no attorneys' fees will be awarded.
a 10-year-old student, was first evaluated by the School
District for special education services in April 2013. Compl.
[Docket No. 1] ¶¶ 1-3. He was diagnosed as having
emotional/behavioral disorders, and his parents agreed to an
Individualized Education Program (“IEP”) based
upon the initial evaluation. Administrative Record [Docket
No. 11] (“AR”) at OAH001316.
was reevaluated in March 2016, and his parents agreed to a
new IEP based upon the reevaluation. Id.
The December 6, 2016 Due Process Complaint
November 21, 2016, T.O.F. brought a pocketknife to school,
showed it to a fellow student, and reportedly threatened to
kill the student if he reported the knife. Compl. ¶ 4.
T.O.F. was suspended from school for five days.
November 28, 2016, the School District provided T.O.F.'s
parents with a Prior Written Notice/Consent to Evaluate,
which was notice the School District sought to reevaluate
T.O.F. after the knife incident. The performance areas to be
evaluated included intellectual/cognitive functioning,
academic performance, and emotional, social, and behavioral
development. AR at OAH001316. The School District proposed to
evaluate T.O.F.'s intellectual/cognitive functioning and
his academic performance through a review of his previous
testing. T.O.F.'s emotional, social, and behavioral
development evaluations were to be conducted through
observation, a functional behavioral assessment, and a review
of T.O.F.'s previous testing. On November 29, 2016,
T.O.F.'s parents consented to the School District's
December 5, 2016, Plaintiffs filed a Complaint and Request
for Hearing (the “Complaint”) with the Minnesota
Department of Education. First Goetz Aff. [Docket No. 27] Ex.
A. In the Complaint, Plaintiffs sought: 1) to secure
T.O.F.'s right to stay in his current educational
placement; 2) an independent educational evaluation
(“IEE”) at public expense; 3) an improved IEP and
Behavioral Intervention Plan (“BIP”)
incorporating the results of the IEE, and 4) compensatory
education services. Id.
the Complaint was filed, the parties resolved the dispute
regarding the administrative transfer, and T.O.F. was
permitted to return to the same school building. AR at
OAH001584. The other issues remained.
December 21, 2016, the School District filed a motion arguing
that the Complaint should be dismissed because it lacked
factual specificity as required under 34 C.F.R.
300.508(b)(5). Id. at OAH001584-86. The
Administrative Law Judge (“ALJ”) agreed that the
Complaint was deficient, but provided Plaintiffs an
opportunity to amend. Id. at OAH001498-02.
December 28, 2016, before an amended complaint was filed, the
School District moved to dismiss Plaintiffs' demand for
an IEE at public expense. Id. at OAH001461-67. The
School District argued that since the parents never disagreed
with any prior evaluation, they were not entitled to a
publicly funded IEE. Id. at OAH001316. On January
24, 2017, while the School District's motion to dismiss
the IEE demand was pending, Plaintiffs filed a motion for
preliminary relief, requesting that the ALJ appoint three
evaluators to conduct an IEE at public expense: 1) Dr.
Richard S. Ziegler (“Dr. Ziegler”) to conduct the
psycho-educational evaluation portion of the IEE; 2) Janice
Ostrom (“Ostrom”) to conduct the functional
behavior analysis portion of the IEE; and 3) Dr. Anne Gearity
(Dr. Gearity”) to assess T.O.F.'s childhood trauma
and its effects on his learning. The School District
responded opposing its obligation pay for the IEE.
January 26, 2017, the ALJ denied the School District's
motion to dismiss Plaintiffs' demand for an IEE at public
expense. The ALJ concluded that his parents' acceptance
of T.O.F.'s IEP in March 2016 did not waive their right
to later disagree with the evaluation upon which that IEP was
based. Id. at OAH001319-20. The ALJ therefore
ordered the School District to perform an IEE at public
February 16, 2017, the ALJ appointed Dr. Ziegler and Ostrom
as evaluators, but disagreed that Dr. Gearity was needed to
assess T.O.F.'s childhood trauma. The ALJ also rejected
Plaintiffs' contention that the School District pay for
the expenses incurred by Ostrom and Drs. Ziegler and Gearity
prior to January 26, 2017, concluding that the School
District's financial responsibility to provide the IEE
began on January 26, 2017.
process hearing was scheduled for April 18, 2017, and
Plaintiffs were ordered to file witness lists and exhibits by
April 11, 2017. Id. at OAH000021-22.
did not file an exhibit or witness list by the April 11, 2017
deadline. On April 12, 2017, the School District moved to
dismiss the case due to Plaintiffs' failure to comply
with the ALJ's scheduling order. Id. at
OAH000016-18. On April 13, Plaintiffs' counsel wrote to
the ALJ stating that the “primary issues raised for
resolution in this matter are now resolved. The Student and
his Parents withdraw the only remaining issue that has not
been resolved, the claim for compensatory education services,
and request dismissal.” Id. at OAH000009.
Plaintiffs assert that “[o]nce the IEE was completed
and its results were incorporated into a new and
significantly improved IEP for T.O.F., and once the final
order regarding the IEE was issued, Plaintiffs were satisfied
with the outcome of the proceedings.” Compl. ¶ 16.
The ALJ entered an order dismissing the case with prejudice
that same day. Id. at OAH000008.
counsel wrote another letter later that day requesting that
the ALJ file an amended order eliminating the statement that
the parties “have resolved all their
differences.” Id. at OAH000005. T.O.F.
additionally requested that the amended order reflect that
dismissal be without prejudice. Id. at OAH000005.
The ALJ filed an amended order that eliminated the objected
to language, but again stated that dismissal was with
prejudice. Id. at OAH000004.