REVISED, November 6, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-20954
Summary Calendar ____________________
JASON D W, BY NEXT FRIEND MR & MRS DOUGLAS W
Plaintiff-Appellant,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ September 21, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
Jason W., by his next friends and parents Mr. and Mrs.
Douglas W., appeals the district court’s order awarding him
reduced attorneys’ fees and granting costs to the Houston
Independent School District. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-appellant Jason W. (represented in this action by
his next friends and parents, to whom we refer collectively as
Jason) is a special education student in the Houston Independent
School District (the District). He has been diagnosed with attention deficit disorder and a speech impairment that cause him
significant academic and social difficulty. Since early 1994,
Jason has qualified for special education services, and the
District has created individualized education plans for him.
These entail, inter alia, providing resource instruction and
consultation, modifying the regular education program to meet
Jason’s needs, and developing behavior management plans designed
to control his disruptive behavior. During the 1994-95 school
year, Jason’s parents became dissatisfied with Jason’s special
education program and requested a hearing under the Individuals
with Disabilities in Education Act (IDEA), 20 U.S.C. §§ 1400-
1491, which conditions federal aid to state special education
programs on a state’s assurance to all children with disabilities
“an opportunity to present complaints with respect to any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate
education to such child.” 20 U.S.C. § 1415(b)(1)(E).1 Jason
rejected the District’s official settlement offer, and a hearing
was held on May 25 and June 12-16, 1995 before James Holtz, an
attorney appointed as a hearing officer by the state of Texas.
On July 22, 1995, Holtz filed a written decision finding that
(1) Jason’s parents were entitled to reimbursement for the fees
of two psychologists whom they had retained to help the District
develop a behavior management plan for Jason, (2) that the
1 This opinion cites to the version of the IDEA in effect at the time of the events in this case. The IDEA was completely revised in 1997 by Pub. L. No. 105-17, 111 Stat. 37.
2 behavior management plan ultimately adopted by the District was
not appropriate, and (3) that Jason’s placement in a resource
class from January 10, 1995 to February 2, 1995 was not
appropriate and denied him a free appropriate public education
(FAPE).
On July 26, 1995, Daniel McCall, Jason’s attorney, wrote to
Jennifer Jacobs, the District’s attorney, demanding $32,943.97, a
sum representing the total amount of attorneys’ fees and costs.
After McCall rejected two settlement offers of $7500.00 and
$10,000.00, Jason filed an action in the federal district court
for the Southern District of Texas, Houston Division, seeking
recovery of all attorneys’ fees and costs incurred in the special
education hearing and in federal court under the IDEA, 20 U.S.C.
§ 1415(e)(4)(B). On April 26, 1996, the District made an
official offer of judgment under Federal Rule of Procedure Rule
68 in the amount of $24,429.00, which Jason failed to accept.
After a bench trial, the district court found that nineteen
specific issues had been presented to the hearing officer and
that Jason had prevailed on only three. The court also found
that the hearing afforded Jason some specific relief that he
would not have received had he accepted the District’s settlement
offer. The court ruled that Jason was a prevailing party, but
awarded him only a fraction of the attorneys’ fees he demanded.
Because it found that at least half of the time and effort
expended in the hearing had been devoted to three issues relating
to a new school placement for Jason--issues on which Jason did
3 not prevail--the district court first reduced the hours his
attorney claimed to have spent by half. Of the remaining sixteen
issues, the court found that Jason prevailed on only three and
that even success on these three afforded Jason little relief
beyond what the District had offered prior to the hearing. Based
on these factors, the court again reduced the number of hours by
half. In addition, the district court ruled, based on its
finding that Jason was entitled only to total fees, costs, and
expenses in the amount of $8340.49 on the date of the District’s
$10,000.00 settlement offer, that Jason had unreasonably
protracted the controversy by refusing to settle. It declined to
award Jason any fees or costs beyond $8340.49. Jason thus did
not receive fees or costs for the federal lawsuit.
The District filed a motion to amend final judgment,
contending that under Federal Rule of Civil Procedure 68, it was
entitled to its costs after April 26, 1996. The District argued
that because it had made an offer of judgment on April 26, 1996
in the amount of $24,429.00, which was more than the $8340.49
that Jason ultimately obtained at trial, it was entitled to all
costs after that date. The district court granted the motion and
awarded the District $2322.05. Jason filed a motion for new
trial, which the district court denied. Jason appeals.
II. DISCUSSION
Jason argues that the district court erred in awarding
attorneys’ fees in a reduced amount and in granting costs to the
District. We address each of these issues in turn.
4 A. Standard of Review
We review an award of attorneys’ fees for abuse of
discretion and the factual findings upon which the award is based
for clear error. See Brady v. Fort Bend County, 145 F.3d 691,
716 (5th Cir. 1998); Migis v. Pearle Vision, Inc., 135 F.3d 1041,
1047 (5th Cir. 1998) (citing Louisiana Power & Light Co. v.
Kellstrom, 50 F.3d 319, 324, 329 (5th Cir. 1995)). Although we
generally review a district court’s award of costs for abuse of
discretion, see Alberti v. Klevenhagen, 46 F.3d 1347, 1358 (5th
Cir. 1995), interpretation of Rule 68 is an issue of law that we
review de novo, see Louisiana Power & Light Co., 50 F.3d at 333.
B. Attorneys’ Fees
In any action or proceeding brought under the IDEA, the
court “may award reasonable attorneys’ fees as part of the costs
to the parents or guardian of a child or youth with a disability
who is the prevailing party.” 20 U.S.C. § 1415(e)(4)(B). The
legislative history of the IDEA indicates that this attorneys’
fees provision should be interpreted in accordance with Hensley
v. Eckerhart, 461 U.S. 424 (1983), a federal civil rights
decision.2 See H.R. REP. NO. 105-95, at 105-06. Therefore, we
apply the principles outlined in Hensley and its progeny to this
2 Technically, this statement refers to the attorneys’ fees provision in the post-1997 version of the IDEA, but Congress reenacted the identical language of 20 U.S.C. § 1415(e)(4)(B) as 20 U.S.C. § 1415(i)(3)(B) when it revised the IDEA in 1997. Because the amendment did not change the language of the attorneys’ fees provision, we believe that Congress also intended 20 U.S.C. § 1415(e)(4)(B) to be interpreted consistent with Hensley v. Eckerhart.
5 case.
The calculation of attorneys’ fees involves a well-
established process. First, the court calculates a “lodestar”
fee by multiplying the reasonable number of hours expended on the
case by the reasonable hourly rates for the participating
lawyers. See Louisiana Power & Light Co., 50 F.3d at 324. The
court then considers whether the lodestar figure should be
adjusted; in making such an adjustment, the court looks to the
twelve factors established in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974): (1) the time and
labor required for the litigation; (2) the novelty and difficulty
of the questions presented; (3) the skill required to perform the
legal services properly; (4) the preclusion of other employment
by the attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the
amount involved and the result obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
similar cases. See Louisiana Power & Light Co., 50 F.3d at 329.
Many of these factors usually are subsumed within the initial
calculation of hours reasonably expended at a reasonable hourly
rate, see Hensley, 461 U.S. at 434 n.9, and should not be double-
counted, see Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th
Cir. 1993). Moreover, some Johnson factors deserve more weight
6 than others. The Supreme Court held that “the most critical
factor” in determining the reasonableness of a fee award “is the
degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114
(1992) (quoting Hensley, 461 U.S. at 436); see also Von Clark v.
Butler, 916 F.2d 255, 258 (5th Cir. 1990). This factor is
particularly crucial when, as in this case, a plaintiff is deemed
“prevailing” even though he succeeded on only some of his claims.
See Hensley, 436 U.S. at 434.
Both parties agree that Jason is a prevailing party.
Hensley noted that a “typical” definition of “prevailing party”
for attorneys’ fees purposes is a party who “succeed[s] on any
significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.” 461 U.S. at 433
(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.
1978)). This circuit has specifically held that in IDEA cases, a
prevailing party is one that attains a remedy that both (1)
alters the legal relationship between the school district and the
handicapped child and (2) fosters the purposes of the IDEA. See
Angela L. v. Pasadena Indep. Sch. Dist., 918 F.2d 1188, 1193-94
(5th Cir. 1990).3 The hearing altered the legal relationship
between Jason and the District, which was ordered to reimburse
his parents for the fees of both psychologists, adjust his
3 This circuit adopted a narrower definition of “prevailing party” in the context of § 1988 attorneys’ fees cases, holding that prevailing parties must succeed on the central issue of their suit and obtain the primary relief sought, see Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 837 F.2d 190, 192 (5th Cir. 1988), but we need not consider that definition because the Angela L. standard explicitly applies to IDEA cases.
7 behavior modification plan to include positive reinforcement, and
train his teachers to implement the behavior modification plan
properly. Furthermore, the remedy that Jason obtained fosters
the purposes of the IDEA by providing him with a free and
appropriate public education.
A finding that a party is a prevailing party only makes him
eligible to receive attorneys’ fees under the IDEA; it does not
automatically entitle him to recover the full amount that he
spent on legal representation. See 20 U.S.C. § 1415(e)(4)(B)
(“In any action or proceeding brought under this subsection, the
court, in its discretion, may award reasonable attorneys’
fees . . . .”) (emphasis added). Jason contends that all the
Johnson factors support his application for the full amount of
attorneys’ fees. The district court, however, reduced the fees
based only on its finding that the action did not involve novel
or difficult questions of fact or law and that Jason achieved
limited success at the hearing. Because we find that the
district court did not abuse its discretion in reducing the
attorneys’ fees from $32,943.97 to $8340.49 on the grounds of
these two factors, we find it unnecessary to examine the others.
First, Jason offers only bald assertions in support of his
contention that his case involved novel and difficult questions.
He states that the District is the largest public school district
in the state of Texas, that the hearing was requested by the
parents to contest all of the District’s decisions concerning
Jason’s education, and that five special education experts
8 testified at the hearing. The size of the District or the
hearing does not show that the suit involved novel or difficult
legal and factual issues, however, and Jason’s claim that the
parents filed an appeal of all of the District’s decisions on
Jason’s education is simply inaccurate, as Holtz testified at
trial that he explicitly limited the issues to those arising out
of the 1994-95 school year. We cannot say that the district
court committed clear error in finding that Jason’s case did not
involve novel and difficult issues.
Second, attorneys’ fees must reflect the degree of success
obtained. The District contends that the parties presented
nineteen issues to Holtz, of which Jason prevailed on three;
therefore, it contends that Jason achieved only limited success
at the hearing, and his attorneys’ fees should be reduced
accordingly. Jason asserts that (1) the nineteen issues the
district court identified were not all presented at the hearing;
(2) the question of whether Jason was receiving a FAPE, on which
Jason prevailed, was the primary and subsuming issue at the
hearing; and (3) the issues in this suit were so interrelated
that it is impossible to allocate time among the individual
issues.
We find that the district court did not commit clear error
in determining that there were nineteen issues, of which Jason
prevailed only on three, and did not abuse its discretion in
awarding attorneys’ fees accordingly. There is ample evidence in
the record to support the district court’s findings that Jason
9 achieved limited success. James Holtz, the hearing officer at
Jason’s due process hearing, testified that nineteen issues were
presented to him in Jason’s case and that Jason did not prevail
on all those issues. Holtz’s testimony confirmed that of Nona
Matthews, the District’s expert witness, who analyzed transcripts
of the hearing and concluded that nineteen issues were presented.
Moreover, both Holtz and Matthews testified at trial that
Jason’s primary objective was to secure placement at another
school. Holtz also testified, and the district court found, that
more than half of the time and testimony at the hearing involved
the issue of whether Jason would be placed in another school.
Holtz further testified that although another major issue was
whether the District had provided Jason with a free appropriate
public education during the 1994-95 school year, this issue did
not subsume all others, and Jason was not entirely successful on
his claim that he had been denied a FAPE:
Holtz: The major issue--
McCall: Yes.
Holtz: --before me involved I guess the alternate determination, whether or not there was a Free Appropriate Public Education being provided to the student during that school year. But this did not include all of the issues that were raised by the parties.
McCall: And did the petitioner prevail on the major issue of whether there was denial of F.A.P.E.?
Holtz: Partially.4
4 Jason argues that the district court erred in striking several post-trial exhibits, one of which was an affidavit from James Holtz in support of Jason’s application for attorneys’
10 Furthermore, the language of the IDEA itself demonstrates that
not all of the nineteen issues that Holtz identified can be
subsumed under the general heading of denial of a FAPE. The IDEA
guarantees “an opportunity to present complaints with respect to
any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a free
appropriate public education to such child.” 20 U.S.C.
§ 1415(b)(1)(E) (emphasis added). The IDEA thus treats placement
and denial of a FAPE as separate issues; moreover, it implies
that identification and evaluation of the child also should be
considered distinct issues. Even assuming that the remaining
issues do fall under the FAPE umbrella, it is undisputed that
Jason prevailed only on three of those issues; thus, as Holtz
testified, he was only partially successful on the issue of
whether he was denied a FAPE.
Jason also contends that the nature of a special education
case is such that the issues are so interrelated that it is
impossible to determine how much time was spent on each issue.
fees. Although Jason includes this question in his statement of the issues, he provides no argument or authority in support of his position. We have held that failure to provide any legal or factual analysis of an issue on appeal waives that issue. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995); see also Fed. R. App. P. 28(a)(6)(“The argument must contain the contentions of the appellant on the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on.”); Gann v. Fruehauf Corp., 52 F.3d 1320, 1328 (5th Cir. 1995) (holding that appellant waived claims on appeal by failing to advance arguments in support of them in the body of his brief). The district court struck these exhibits, Jason provides no argument as to why we should find that it erred in doing so, and we therefore decline to address them.
11 This argument lacks merit; indeed, we have rejected a similar
claim in an analogous case. See Migis v. Pearle Vision, Inc.,
135 F.3d 1041, 1048 (5th Cir. 1998). In Migis, the plaintiff
alleged four acts of discrimination on the basis of sex or
pregnancy. She prevailed only on one, and only on the basis of
pregnancy discrimination. See id. The district court reduced
the amount of attorneys’ fees. See id. at 1047. On appeal,
Migis argued that her case could not be segregated into discrete
claims because all of her contentions involved a common core of
facts and because she only prosecuted a single, discrete claim of
pregnancy discrimination. See id. at 1048. We rejected this
argument, holding that even where “a plaintiff has achieved only
partial or limited success, the product of hours reasonably
expended on the litigation as a whole times a reasonable hourly
rate may be an excessive amount. This will be true even where
the plaintiff’s claims were interrelated, nonfrivolous, and
raised in good faith.” Id. (quoting Hensley, 461 U.S. at 436).
The district court did not commit clear error in finding
that Jason prevailed on only three of nineteen issues before the
hearing officer and that he lost on an issue on which the parties
spent more than half of the time at the hearing. The district
court did not abuse its discretion in reducing the requested fees
by half to account for the time spent on pursuing the
unsuccessful placement claim and by half again to reflect Jason’s
limited success on the other issues.
Jason also contends that the district court erred in cutting
12 off fees for Jason’s attorney on the grounds that he unreasonably
protracted litigation. Under the IDEA, whenever a court finds
that a fee applicant seeking attorneys’ fees under the statute
has “unreasonably protracted the final resolution of the
controversy,” the court “shall reduce, accordingly, the amount of
attorneys’ fees awarded.” 20 U.S.C. § 1415(e)(4)(F)(i). Jason
argues that the protraction provision applies only to the actions
taken by a party during the underlying hearing. Alternatively,
he contends that failing to accept a settlement offer during the
fee collection process does not constitute protraction. We
disagree.
Jason cites no authority, and we can find none, for the
proposition that the IDEA’s protraction provision applies only to
the underlying action and not to the attorneys’ fees suit. The
statute refers generally to “the action or proceeding,” language
that covers both the administrative hearing proceeding and
related action for attorneys’ fees. Moreover, the protraction
provision applies to any action that hinders the “final
resolution of the controversy.” In this case, the controversy
between Jason and the District will not be finally resolved until
the matter of attorneys’ fees is settled. Thus, it seems clear
to us that § 1415(e)(4)(F)(i) is not limited to the underlying
proceedings.
This court and a number of other federal courts have held
that failing to settle can constitute protraction under
§ 1415(e)(4)(F). See Shelly C. v. Venus Indep. Sch. Dist., 878
13 F.2d 862, 863 (5th Cir. 1989) (reversing grant of summary
judgment for plaintiff in attorneys’ fee action under the IDEA in
part because district court failed to consider whether
plaintiff’s attorney unnecessarily protracted proceedings where
parties ultimately settled); see also Fischer v. Rochester Comm.
Schs., 780 F. Supp. 1142, 1150 (E.D. Mich. 1991) (holding that
failure to accept settlement can constitute protraction); Howey
v. Tippecanoe Sch. Corp., 734 F. Supp. 1485, 1492-93 (N.D. Ind.
1990) (finding that plaintiff’s counsel engaged in “a pattern of
deliberate conduct to extend these proceedings” in a case under
the Education of the Handicapped Act, the predecessor to the
IDEA, by, inter alia, failing to accept a highly favorable
settlement). Although Jason asserts in his brief that the
settlement offer of $10,000.00 was not a firm offer and thus
could not trigger § 1415(e)(4)(F)(i), he neither briefs the issue
nor presents any evidence to support his contention. We
therefore consider the issue waived. See Fed. R. App. P.
28(a)(6); Gann, 52 F.3d at 1328; Cavallini, 44 F.3d at 260 n.9.
C. Costs
Jason contends that the district court erred in awarding
costs to the District under Federal of Civil Procedure 68 because
that Rule does not apply to cases brought under the IDEA.
Awarding costs to the District, Jason argues, would contravene
the IDEA’s purpose of protecting the rights of the parent and the
disabled child. We disagree. The policy behind Rule 68 is to
“encourage settlement and avoid litigation.” See Marek v.
14 Chesny, 473 U.S. 1, 5 (1985). We see no conflict between this
goal and that of protecting the welfare of children with
disabilities and their parents. Cf. id. at 11 (“Section 1988
encourages plaintiffs to bring meritorious civil rights suits;
Rule 68 simply encourages settlements. There is nothing
incompatible in these two objectives.”). Indeed, the IDEA
encourages settlement in, for example, § 1415(e)(4)(F)(i), which
requires the court to reduce attorneys’ fees for a parent or
guardian who unreasonably protracts the final resolution of the
controversy. Moreover, we have explicitly approved awards of
costs to a school district under the IDEA. See Cypress-Fairbanks
Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 256-57 (5th Cir.
1997) (affirming an award of costs to a school district in an
IDEA case despite the parents’ argument that doing so would have
a chilling effect on the willingness of parents to contest school
decisions vitally affecting their children), cert. denied, 118 S.
Ct. 690 (1998); cf. Bonnie Ann F. v. Calallen Indep. Sch. Dist.,
835 F. Supp. 340, 351-52 (S.D. Tex. 1993) (granting costs to
school district as a sanction under Federal Rules of Civil
Procedure 11 and 16(f)), aff’d, 40 F.3d 386 (5th Cir. 1994).
Finally, Jason challenges the amount of the district court’s
award of costs. Specifically, he asserts that the court should
not have granted copying costs for 19,638 copies because that
copying was not a necessity but a convenience for the District’s
attorneys. He also claims that the court should not have granted
fees for the testimony of Nona Matthews, who he contends was
15 neither an expert in the area of special education law, as the
District represented, nor was reasonably necessary for the
adjudication of the legal issues before the court. According to
Southern District of Texas Local Rule 4(B), objections to a bill
of costs must be filed within five days after the filing of the
bill itself. See S. Dist. Tex. Local R. 4(B). The District
filed a bill of costs and a brief in support of the bill of costs
on December 5, 1996. The next day, the District filed a
supplemental bill of costs. All three filings contained requests
for Matthews’s witness fees and the District’s copying costs.
Jason did not respond until January 13, 1997, well after the
five-day time limit for filing an objection. We therefore find
that the district court properly awarded these costs to the
District.
D. Other Issues
Jason raises three other issues in his brief, but does not
discuss them at all: (1) that his parents were entitled to
reimbursement for child care expenses incurred while they
attended the hearing before James Holtz, (2) that the district
court erred when it found that the District “made an official
offer of settlement” to Jason on May 12, 1995, and (3) that the
district court abused its discretion in not awarding prejudgment
interest on the outstanding attorneys’ fees from the time of the
entry of Holtz’s decision. Jason does not present arguments or
authority to support his position on these issues, however, and
we therefore consider them waived. See Fed. R. App. P. 28(a)(6);
16 Gann, 52 F.3d at 1328; Cavallini, 44 F.3d at 260 n.9.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.