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govinfo:USCOURTS-tnwd-2_22-cv-02464-5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
K.B., by and through his Parent, K.B.,
Plaintiffs,
)
)
)
v.
)
)
)
Case No. 2:22-cv-02464-JPM-cgc
MEMPHIS-SHELBY COUNTY
SCHOOLS,
Defendant.
)
)
)
)
ORDER GRANTING PLAINTIFFS’ MOTION FOR CLARIFICATION AND
DISMISSING WITHOUT PREJUDICE PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES
Before the Court are Plaintiffs’ K.B. and Mr. K.B. (collectively, “Plaintiffs ’”)
1
Motions for Attorneys’ Fees and Costs and for Clarification. (ECF Nos. 109, 125.) Also
before the Court are Defendant Memphis- Shelby County Schools ’ (“Defendant’s” or
“MSCS’”) Responses in Opposition to both. (ECF Nos. 117, 126). Because the instant
Motions and Responses concern the issue of attorneys’ fees, the instant Order addresses
all.
For the reasons discussed below, Plaintiffs’ Motion for Clarification is GRANTED
and Plaintiffs’ Motion for Attorneys’ Fees is DISMISSED WITHOUT PREJUDICE as
unripe.
1 Plaintiffs refer to themselves in pleadings in the plural (child K.B. through his parent Mr. K.B., with
“Plaintiffs” used to refer to the collective) while the standard convention is to refer to the child “plaintiff”
or to the individual or individuals representing the child’s interest in the singular or plural, as the case may
be. See Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001) (referring to
“parents” as bringing the claim); L.H. v. Hamilton Cnty. Dep’t of Educ., 900 F.3d 779 (6th Cir. 2018)
(referring to parents bringing the claim as “plaintiffs”). For consistency with prior decisions of the Court
and Parties’ filings, this Order uses the plural “Plaintiffs” to refer to child K.B. and Mr. K.B.
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I. BACKGROUND
A. Factual
The instant Motions are “only the latest stop on K.B.’s long and winding journey
to the special education and accommodations he needs to obtain the free appropriate public
education (‘FAPE’) guaranteed to him” by the Individuals with Disabilities in Education
Act (“IDEA”). (See ECF No. 123 at PageID 6016.) “[D]espite significant evidence that
K.B. was eligible for and would benefit from an individual education plan (‘IEP’), he spent
his entire first year in MSCS schools in general education. MSCS ultimately implemented
a formal IEP in October 2021 and then implemented an updated IEP in March 2022.” (Id.)
Plaintiffs initiated due process proceedings before an administrative law judge
(“ALJ”) in the Tennessee Department of Education Division for Defendant’s alleged
violations of the IDEA for the 2020–21 and 2021–22 school years. (ECF No. 104 at
PageID 5599.) In May 2022, the ALJ held that Defendant had failed to provide K.B. a
FAPE for the period before October 18, 2021, “but that Plaintiffs failed to meet their burden
of proof on post -October 18, 2021 issues.” ( Id.) The ALJ awarded compensatory
education for the pre-October 18, 2021 period. (See id.)
B. Procedural
On July 18, 2022, Plaintiffs brought this action to challenge the ALJ’s ruling on the
period of October 18, 2021, to May 17, 2022, (the “October –May period”) among other
issues. ( ECF No. 1.) On March 12, 2024, the Court issued its Judgment on the
Administrative Record (the “March Order”), reversing in part the ALJ’s findings because
the ALJ had applied the incorrect legal standard in his analysis. (ECF No. 104 at Page ID
5599, 5611.) Under the correct standard of preponderance of the evidence, the Court found
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that Defendant had failed to provide a FAPE to K.B. for at least some of the October–May
period. (Id. at PageID 5599.) Specifically, the Court found that Defendant failed to provide
a FAPE for the period of October 28, 2021, to March 14, 2022 (“First Period”), thus
reversing the ALJ on that claim. ( Id. at PageID 5612, 5614–15.) The factual record was
not sufficiently developed, however, to determine whether Defendant failed as well for the
period of March 14, 2022, to May 17, 2022 (“Second Period”). (Id. at PageID 5614.)
2 The
Court thus remanded the case to the ALJ to reconsider Plaintiffs’ claim for the Second
Period under the correct legal standard and to reevaluate the compensatory education
award. (Id. at PageID 5616–18.) The Court’s Judgment was filed on April 5, 2024. (ECF
No. 106.)
Defendant appealed the Court’s Judgment on A pril 11, 2024. (ECF No. 107.) On
August 21, 2024, the Sixth Circuit ruled that the Court’s remand of the ALJ’s final order
was not a final order and thus not appealable. ( See ECF No. 123 at PageID 6017.) The
Sixth Circuit underscored that the undeveloped factual record was due to the ALJ’s analysis
of the case, not to any failure of Plaintiffs to make their case. (Id. at PageID 6019.) It also
viewed the Court’s remand as a matter of procedural efficiency, not a merits determination
for the Second Period. (Id.)
Plaintiffs filed a Motion for Attorneys’ Fees and Costs on April 19, 2024. (ECF
No. 109.) Defendant initially filed a response that exceeded the permitted range on May
17, 2024, then filed the instant Revised Response on May 24, 2024. (ECF Nos. 114, 117.)
Plaintiffs filed the instant Motion for Clarification on September 9, 2024. (ECF
No. 125.) Specifically, Plaintiffs request clarification on the following sentence in the
2 The Court indicated that, if the same IEP governed the Second Period, Defendant also failed to provide
K.B. a FAPE during that time. (Id.)
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Court’s March Order: “Because the factual record is insufficiently developed to determine
whether K.B. can be appropriately placed at MSCS or a private placement, the Court
REMANDS for further proceedings consistent with this order and for determination of
reasonable costs and attorney’s fees.” (Id. at PageID 6021 (quoting ECF No. 104 at PageID
5599).) Defendant filed its Response in Opposition on September 23, 2024, asserting that
no clarification was needed at this time. (ECF No. 126 at PageID 6039–40.)
II. LEGAL STANDARD
A. Clarification
The Court has jurisdiction to amend any non- final order. Fed. R. Civ. P. 54(b)
(permitting revision of any non-final order).
B. Attorneys’ Fees and Costs
Under the IDEA, “the district court has the discretion to award reasonable attorney
fees to . . . ‘a prevailing party who is the parent of a child with a disability.’” Somberg v.
Utica Cmty. Schs. , 908 F.3d 162, 178 (6th Cir. 2018) (quoting 20 U.S.C. §
1415(i)(3)(B)(i)). A “prevailing party” is one who “succeed[s] on any significant issue in
litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). 3 For the parents to receive attorneys’ fees as
“prevailing parties” under the IDEA, “they must have (1) succeeded on a significant issue,
and (2) this success must be embodied in either a judgment on the merits or in a settlement
agreement enforced through a consent decree (i.e., an agreement with ‘ the necessary
judicial imprimatur’).” Tompkins ex rel. A.T. v. Troy Sch. Dist., 199 F. App’x 463, 466
3 What makes a party “prevailing” can be a complicated determination. See, e.g., Lackey v. Stinnie, No.
23-621 (U.S. Sup. Ct. argued Oct. 8, 2024) (regarding the issue of prevailing party in preliminary
injunction when no final judgment could be entered).
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(6th Cir. Oct. 2, 2006). “Such success alone, however, is not enough. The term ‘prevailing
party’ also requires that there be ‘a court-ordered change [in] the legal relationship
between [the plaintiff] and the defendant.’” Id. (quoting Buckhannon Bd. V. W. Va. Dep’t
of Health & Human Res. , 532 U.S. 598, 604 (2001)) ( other internal quotation marks and
citations omitted) (emphasis in original) . Thus, the “touchstone of this inquiry is the
material alteration of the legal relationship of the parties. ” Berger v. Medina City Sch.
Dist., 348 F.3d 513, 526 (6th Cir. 2003) (internal quotation marks and citations omitted).
Under Sixth Circuit precedent, “the prevailing party analysis practically considers the goals
of the parties at the outset of the litigation or ‘ the benefit the parties sought in bringing
suit,’ and the progress that the parties made toward achieving those goals.” Y.B. v.
Williamson Cnty. Bd. of Educ., No. 3:08-0999, 2009 WL 4061311, at *5 (M.D. Tenn. Nov.
20, 2009) (citing id.).
III. ANALYSIS
Plaintiffs’ Motion for Attorneys’ Fees depends in part on the Court’s March Order
on which Plaintiffs’ request clarification. Accordingly, the Court’s analysis will focus first
on the latter before turning to the former.
A. Clarification
Plaintiffs seek the Court’s clarification regarding authority to award attorneys’ fees
and costs in light of the Court’s March Order. (ECF No. 125.) Plaintiffs allege that, during
the September 5, 2024, Scheduling Conference with the ALJ, Defendant said for the first
time that the ALJ must determine attorneys’ fees and costs in the instant case. ( ECF No.
125-1 at PageID 6025–26.)
4
4 There is no transcript of this conference on the Record, and Defendant did not address this allegation in its
Response. (ECF No. 126.)
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In its Response, Defendant acknowledges the Court’s exclusive authority to award
attorneys’ fees. (ECF No. 126 at PageID 6040.) Additionally, in Defendant’s petition to
stay the ALJ proceedings, Defendant characterized the sentence in question in the Court’s
March Order as “clearly inconsistent with the IDEA, which provides only the District Court
with authority to determine reasonable costs and attorneys’ fees.” (ECF No. 125- 2 at
PageID 6035.)
Defendant argues that the meaning of the Court’s March Order does not require
clarification before the ALJ determines whether he has subject matter determination. (See
id.) This position implies that the Court should wait to see if the ALJ makes the correct
ruling rather than clarifying the issue now. Defendant also seems to imply that the Court
would grant Plaintiffs’ Motion to “immediately” grant Plaintiffs’ Motion for Attorneys’
Fees. (See id.)
This case presents a number of complex procedural and factual issues, evidenced
in part by the length of the proceedings to date . Thus, clarification of the Court’s March
Order seems prudent. Such clarification will hopefully avoid any potential confusion and
allow proceedings below to continue in accordance with the Court’s March Order .
Accordingly, Plaintiffs’ Motion for Clarification is GRANTED.
The last full sentence on page two of the Court’s March Order shall read: The Court
REMANDS for further proceedings consistent with this order.
This clarification makes it clear that the issue of attorneys’ fees is not before the
ALJ on remand. After the conclusion of the administrative proceedings, either party may
file for a determination of attorneys’ fees by the Court.
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B. Attorneys’ Fees and Costs
The “touchstone” of the prevailing party inquiry is “ the material alteration of the
legal relationship of the parties.” Berger, 348 F.3d at 526. This involves not only a
favorable determination of the claims, but a final court -ordered change granting the party
their requested benefit. See id.; Tompkins, 199 F. App’x at 466.
The Sixth Circuit determined that the remaining “open” question on remand was
the Second Period, and relatedly, the issue of compensatory education for all the claims
given the open question of the Second Period. (ECF No. 123 at PageID 6017–18.)
Plaintiffs’ Motion for Attorneys’ Fees recognized that the Court’s remand included the
compensatory award question. (ECF No. 109 at PageID 5628.) The Court also found that
“the existing compensatory education award must be reconsidered given the FAPE
determination for” the October–May period. (Id. at PageID 5617–18.)
While Plaintiffs have received favorable determinations on some of their claims
before the ALJ and the Court, Plaintiffs have yet to receive the final court-ordered change
granting their requested benefit —namely, a compensatory education award—for at least
the October–May period.5 Thus, Plaintiffs have not yet achieved prevailing party status
on their claims for the October–May period. See Berger, 348 F.3d at 526; Tompkins, 199
F. App’x at 466. Accordingly, Plaintiffs’ Motion for Attorneys’ Fees and Costs is
DISMISSED WITHOUT PREJUDICE as unripe.
5 Again, the Court indicated that Defendant would have failed to provide a FAPE if the October 2021 IEP
governed the Second Period. (ECF No. 104 at PageID 5614.) Additionally, Plaintiffs might be prevailing
parties on the ALJ-ordered change regarding the two claims not appealed. (See ECF No. 17-1 ¶ 4; ECF
No. 24-1 ¶ 4.) However, there is a complicated (and as-of-yet unbriefed) question of extricating the billing
related to those claims from the current open claims. Thus, the Court declines to hold at this time that
Plaintiffs are prevailing parties on the pre-October 2021 claims.
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IV. CONCLUSION
For the reasons discussed above, Plaintiffs’ Motion for Clarification is GRANTED
and Plaintiffs’ Motion for Attorneys’ Fees is DISMISSED WITHOUT PREJUDICE as
unripe.
The last full sentence on page two of the Court’s March Order shall read: The Court
REMANDS for further proceedings consistent with this order.
SO ORDERED, this 5th day of November, 2024.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
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