Nickles Roughed Up In Special Ed Decision
D.C. Attorney General Peter J. Nickles received a thorough trashing yesterday from a federal judge who denied the District's bid to recover $1,725 in legal costs from a private attorney who filed what officials regarded as a frivolous special education case.
Public and public charter school parents who are unhappy with the District's response to requests for special education services can ask for an administrative due process hearing. But Nickles has complained frequently about what he calls a "very aggressive plaintiff's bar" that he says has inundated the D.C. public school system with special ed litigation.
At a December press conference, he announced the lawsuit against attorney John A. Straus and billed it as the beginning of a crackdown on the special ed bar.
U.S. District Judge Richard W. Roberts said that given the District's abysmal record of serving special needs children--the subject of a 2006 federal court consent decree and a thicket of related lawsuits--Nickles had no business trying to get tough with the lawyers who represent them.
"It is beyond ironic that D.C.'s Attorney General complains with great flourish about lawyers who help parents secure disabled children's rights when his client, DCPS, has been found repeatedly in this court to have violated children's rights under IDEA" (Individuals with Disabilities Education Act).
Roberts seemed particularly peeved about the District's decision to pursue such a relatively piddling amount of money in federal court.
"It is particularly unclear," he wrote, "how the Attorney General's choice to sue in federal to recover $1,752.25, and not sue in the more streamlined and far less costly Small Claims Branch of our D.C. Superior Court, furthers his interest in saving taxpayer money."
The back story begins last August, when Straus charged in a due process complaint that school officials had failed to conduct a psychiatric evaluation of a student at Spingarn High School. The District's December suit says that Straus needlessly pursued the matter after the District told him to go ahead and get an evaluation at public expense. At a September administrative hearing, according to the suit, Straus said he had continued the litigation because the District's authorization of the evaluation did not provide for his fee.
Federal law allows school districts to recover expenses from attorneys who file unreasonable or unfounded actions. The District argued that because an administrative law judge found that Straus unnecessarily prolonged the case, D.C. met the legal definition of "prevailing party" and was entitled to summary judgment and attorney's fees.
Roberts begged to differ.
He said that, to its credit, DCPS voluntarily corrected the problem and provided for the psychiatric evaluation. That should certainly get the District off the hook for the attorneys fees, Roberts said.
"But DCPS grabs for more. After it successfully mooted the complaint...DCPS turned around and ran into district court claiming prevailing party status and seeking attorney's fees," wrote Roberts.
Nickles said this afternoon that he "throughly disagreed" with the ruling and would certainly appeal. He also called the comments Roberts directed to him "completely inappropriate."
"That may be his personal view but that should not come into the decision," he said. "I think he was probably annoyed that a case involving only a thousand or so dollars was filed in federal court rather than small claims court." It came to federal court, Nickles said, because under the law the matter belonged there. He said that his office had "three or four" similar suits pending, and that he would continue to file such actions.
Straus, for his part, was gratified by the ruling.
"It was an attempt by DCPS to intimidate the parent's bar and I'm glad they were not successful," he said.
Posted by: eglobegus | April 16, 2009 8:46 PM | Report abuse
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