Soroko v. Gosling ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALEXANDER SOROKO; SUSAN SOROKO,
Plaintiffs-Appellants,
v.
No. 97-1232
ARTHUR W. GOSLING, Dr., official
capacity, Superintendent Arlington
County Public Schools (ACPS),
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-92-1276-A)
Submitted: September 16, 1997
Decided: October 14, 1997
Before NIEMEYER and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John M. DiJoseph, KAVRUKOV, MEHROTRA & DIJOSEPH,
Arlington, Virginia, for Appellants. Barbara S. Drake, County Attor-
ney, Carol W. McCoskrie, Assistant County Attorney, Arlington, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Susan and Alexander Soroko (the Sorokos) appeal from the district
court's order denying them attorneys' fees and granting summary
judgment to the Superintendent of the Arlington County Public
Schools (ACPS). We affirm.
The Sorokos are the parents of Anna Soroko, who has been receiv-
ing special education services since 1993 from ACPS under the Indi-
viduals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-
1427 (1994). Anna is entitled to receive speech therapy services as
part of her special education program. Because ACPS failed to pro-
vide speech therapy services to Anna for an eight-week period in
1995 and 1996, the Sorokos requested a due process hearing pursuant
to the IDEA.
The Sorokos requested the following relief:
1. A finding of fact that services were suspended without
notice to Anna's parents in violation of Anna's IEP
[Individualized Education Plan];
2. ACPS to provide a weekly report to the Sorokos listing:
(1) services provided; (2) amount of time of service; (3)
whether services were rendered in a group or one to
one; and (4) name of service provider;
3. Anna will attend second grade at Arlington Traditional
School under the inclusion program with parental selec-
tion of Anna's teacher. ACPS ensures that Anna's
teacher has been provided and has obtained formal
training in dealing with inclusion students;
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4. ASPS [sic] to provide private compensatory speech
therapy services to Anna on a one to one basis with a
speech therapist selected by the Sorokos. This service is
[to] be provided outside of normal school hours;
5. ACPS pay all of the Sorokos['] legal fees and expenses;
6. ACPS pay for a private evaluation of Anna's current
developmental status by Dr. Philip Pearl.
(J.A. 48-49).
Before the hearing was convened, ACPS informed the Sorokos that
compensatory speech therapy services would be provided to Anna.
On the first day of the hearing, ACPS agreed to provide the requested
weekly reports. The Sorokos testified that they had never requested
weekly reports from the ACPS prior to the administrative hearing.
While both parties agreed that ACPS would provide the Sorokos with
weekly reports on what services Anna received, they disputed the tim-
ing of the notification for all services. The Sorokos requested notifica-
tion in writing immediately if any of the services provided to Anna
were to be suspended for any reason. Therefore, the issue of when
ACPS must give notice was a disputed matter. The Sorokos wanted
notice within forty-eight hours.
The hearing officer made seven specific directives. ACPS then
timely appealed that decision to a state level reviewing officer. The
reviewing officer affirmed two of the hearing officer's directives--
that ACPS provide the Sorokos with weekly reports as they agreed
and that Anna not be given compensatory services during recess or
lunch time.
The reviewing officer reversed the hearing officer's other direc-
tives. The reviewing officer found that the directive that whenever
possible ACPS would give notice of any suspension of services
within a forty-eight hour period was too broad and/or vague to consti-
tute an enforceable order. Thus, he reversed the forty-eight hour
notice requirement. The reviewing officer stated, however, that inter-
ruption or suspension of Anna's prescribed speech therapy services in
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excess of ten days arguably would be a change in placement that
requires notice to the Sorokos pursuant to Honig v. Doe, 484 U.S. 305(1988). The reviewing officer noted that in this case the ordered
weekly report should reflect such an interruption well before such
suspension continues for ten days.
The Sorokos then filed an action in district court seeking payment
of attorneys' fees. In response, the Superintendent of ACPS moved to
dismiss for failure to state claim on which relief could be granted or,
in the alternative, for summary judgment.
On appeal, the Sorokos claim that they were the"prevailing party"
below because they obtained: (1) weekly reports detailing the special
education services rendered to Anna during the past week; (2) the
imposition of the ten-day limit before they must be notified if special
education services will be suspended in the future pursuant to Honig;
and (3) an input into what, how, and where compensatory services
will be provided if there is a suspension of services in the future.
Summary judgment is appropriate only if the record reveals no
genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). We review the
entry of summary judgment de novo, applying the same standard as
the district court. Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191
(4th Cir. 1997).
Under IDEA, 20 U.S.C. § 1415(e)(4)(B) (1994),"[i]n any action or
proceeding brought under this subsection, the court, in its discretion,
may award reasonable attorneys' fees as part of the costs to the par-
ents or guardian of a child or youth with a disability who is the pre-
vailing party." The "action or proceeding" refers to an "impartial due
process hearing" held pursuant to the provisions outlined in § 1415.
The term "prevailing party" has "the same general meaning under
§ 1415(d)(4)(B) and 42 U.S.C. § 1988, and cases interpreting both
sections apply the same principles to determine a plaintiff's entitle-
ment to attorneys' fees." Combs v. School Bd. of Rockingham County,
15 F.3d 357, 360 (4th Cir. 1994). In order to be a prevailing party
under § 1988, a "plaintiff must obtain an enforceable judgment
against the defendant from whom fees are sought, or comparable
relief through a consent decree or settlement." Farrar v. Hobby, 506
4
U.S. 103, 111 (1992) (citations omitted); see S-1 & S-2 v. State Bd.
of Educ. of N.C., 6 F.3d 160 (4th Cir. 1993) (Wilkinson, J., dissent-
ing), vacated, 21 F.3d 49, 51 (4th Cir. 1994) (in banc) (adopting
Judge Wilkinson's dissent as the majority opinion). Further, plaintiffs
are entitled to recover attorneys' fees "`if they succeed on any signifi-
cant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.
1978)).
The Sorokos are not entitled to attorneys' fees for the order that
ACPS provide weekly reports because their efforts contributed noth-
ing to the final resolution of a problem that could have been achieved
without resort to administrative or legal process. See Combs, 15 F.3d
at 364. The Sorokos should have given ACPS adequate notice and the
opportunity to provide the weekly reports before they brought an
administrative action and subsequent lawsuit. See id.; Child v.
Spillane, 866 F.2d 691, 693-94 (4th Cir. 1989). Allowing an award
of attorneys' fees under these circumstances would encourage poten-
tial litigants and their attorneys to pursue legal claims prior to
attempting a simpler resolution and would discourage schools from
taking any action whatsoever once an administrative proceeding or
lawsuit was underway for fear that any action on their part would give
rise to a claim by a plaintiff that he prevailed and was entitled to attor-
neys' fees. See Combs, 15 F.3d at 364. Thus, the due process hearing
did not bring about the agreement for weekly reports, and the Sorokos
are not a "prevailing party" on this claim. See id.The Sorokos are not a "prevailing party" with regard to the ten-day
limitation under Honig because the reviewing officer merely made a
generalized statement of law with regard to Honig. "[A] favorable
judicial statement of law in the course of litigation that results in judg-
ment against the plaintiff does not suffice to render him a `prevailing
party.'" Hewitt v. Helms, 482 U.S. 755, 763 (1987). The reviewing
officer's statement of law is not an enforceable judgment and does not
affect the behavior of ACPS towards the Sorokos. See Farrar, 506
U.S. at 103. Thus, the Sorokos are not a "prevailing party" on this
claim. Id.
Lastly, the Sorokos claim that they are a "prevailing party" because
they obtained an input into what, how, and where compensatory ser-
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vices will be provided if there is suspension of services in the future.
The Sorokos waived this claim because they did not raise it in the dis-
trict court. See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
The reviewing officer's directives did not explicitly give the Sorokos
input into what, how, and where compensatory services will be pro-
vided. Thus, our refusal to consider this claim would not be plain
error or result in a miscarriage of justice. See id.Accordingly, we affirm the district court's order granting summary
judgment to the Superintendent of ACPS. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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