Mara Aguirre v. Los Angeles Unified School District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MARA AGUIRRE,
Plaintiff-Appellee,
v.
No. 03-57138 LOS ANGELES UNIFIED SCHOOL
DISTRICT; VICTORIA MCKENDAL, in D.C. No.
 her official capacity as CV-02-09753-CAS
Coordinator of the Los Angeles OPINION
Unified School District Due
Process Unit, e/s/a Victoria
McKendall,
Defendants-Appellants. 
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
October 20, 2005—Pasadena, California
Filed August 29, 2006
Before: Harry Pregerson, Richard R. Clifton, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Concurrence by Judge Pregerson
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COUNSEL
Barrett K. Green, Steven A. Groode, Littler Mendelson, Los
Angeles, California, for the defendants-appellants.
Paul M. Roberts and Michael E. Jewell, Roberts, Adams &
Jewell, Huntington Beach, California, for the plaintiff-
appellee.
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OPINION
BYBEE, Circuit Judge:
The question before us is one we have not previously
addressed: Does the “degree of success” standard announced
in Hensley v. Eckerhart, 461 U.S. 424 (1983), apply to attor-
ney’s fees awards under the Individuals with Disabilities Edu-
cation Act (“IDEA”), 20 U.S.C. § 1400 et seq. See id.
§ 1415(i)(3)(B). We hold that it does, and we vacate the judg-
ment and remand to the district court for further proceedings.
I. BACKGROUND
A. The Individuals with Disabilities Education Act
In the IDEA, Congress found that it was “in the national
interest that the Federal Government have a supporting role in
assisting State and local efforts to educate children with dis-
abilities” and “ensure that all children with disabilities have
available to them a free appropriate public education.” 20
U.S.C. § 1400(c)(6), (d)(1)(A) (2000 & Supp. 2005). See gen-
erally Bd. of Educ. v. Rowley ex rel. Rowley, 458 U.S. 176,
179-84 (1982) (discussing the predecessor to the IDEA, the
Education of the Handicapped Act). States who elect to
receive federal financial assistance must demonstrate that they
have in effect “policies and procedures” to provide disabled
children with a “free appropriate public education” through
the creation of a tailored program known as an “individual-
ized education program” or “IEP.” 20 U.S.C. § 1412(a),
(a)(1), (a)(4); see Cal. Educ. Code § 56341 (2003 & Supp.
2005). The IEP is created by a team that includes the child’s
parents, teacher, a special education teacher, a school repre-
sentative and others. 20 U.S.C. § 1414(d)(1)(B). The IDEA
broadly requires participating states to provide a parent or
guardian who is dissatisfied with either the IEP or the school
system’s implementation of the IEP with an opportunity to
present complaints “with respect to any matter relating to the
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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)(6)(A). A parent or guard-
ian who believes that the public school system has denied her
child the appropriate education may pursue mediation, an
“impartial due process hearing,” and an appeal to the state
educational agency. 20 U.S.C. § 1415(e), (f), (g). Ultimately,
“[a]ny party aggrieved by the findings and decision” made by
the state or local education agency may bring a civil action in
state or federal court. 20 U.S.C. § 1415(i)(2), (3); see Cal.
Educ. Code § 56505(k). Subject to certain restrictions not rel-
evant here, “[i]n any action or proceeding brought under [the
IDEA], the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs to a prevailing party who
is the parent of a child with a disability.” 20 U.S.C.
§ 1415(i)(3)(B)(i).
B. Facts and Proceedings
Mara Aguirre challenged the Los Angeles Unified School
District’s (“LAUSD”) implementation of a “free and appro-
priate public education” for her son, Carlos Castro, for the
1999-2000 and 2000-2001 school years. In a hearing before
a California special education hearing officer (“SEHO”),
Aguirre raised twenty-seven issues—contending, for example,
that the school denied her son a “free and appropriate public
education” because it failed to prepare daily reports on Car-
los’s work and behavior, did not provide him with a one-on-
one aide, and failed to provide him with occupational therapy.
She sought to recover tuition and other expenses incurred
when she took Carlos out of public school and enrolled him
in a private school, and to secure his continued placement
there. Aguirre ultimately prevailed on four of the twenty-
seven issues. The SEHO ruled that LAUSD failed to provide
Carlos with a “free and appropriate education” as required by
IDEA insofar as it failed to conduct a timely assessment for
assistive technology and failed to provide the technology. As
a result, the SEHO denied Aguirre’s request for tuition and
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other expenses, and awarded Carlos the use of assistive tech-
nology for a period not to exceed eight months. The court
observed that even without the use of assistive technology—
which consisted of a desktop computer, printer, and learning
software—Carlos was making excellent progress and so he
did not require compensatory counseling or a supplemental
writing program. Though she sought reimbursement for a year
of private tuition and fees, Aguirre obtained only a few
months’ use of educational equipment. The hearing officer
concluded that “[t]he District prevailed on all issues heard and
decided, except to the extent that it denied a [“free and appro-
priate public education”] in the 1999-2000 and 2000-2001
school year[s] when it failed to conduct the assistive technol-
ogy assessment and provide devices in a timely manner.” Nei-
ther LAUSD nor Aguirre sought further review.
After the hearing, Aguirre sent the district a bill for her
attorney’s fees and costs, totaling $42,104.92. LAUSD
requested a detailed billing statement, indicating which fees
had accrued for work done towards the successful claims.
Aguirre failed to provide the statement and, after LAUSD
refused to pay the fees, she filed a complaint in the district
court. She argued that as the prevailing party she was entitled
to recover all her fees, while the district claimed that, because
she prevailed on only part of her claims, she should receive
a reduced award or no award at all. The district court granted
Aguirre $21,104.24, reasoning that the petitioner prevailed on
a “significant issue in litigation which achieves some of the
benefit the parties sought in bringing the suit,” but only raised
the assistive technology issue partway through the litigation.
The sum awarded was calculated based on “reasonable” attor-
neys’ fees and costs incurred on and after the issue was raised.
In calculating the amount of the fee award, the district court
did not appear to consider the degree of success Aguirre
attained. Aguirre appeals.1
1We review the district court’s factual findings for abuse of discretion
and its conclusions of law de novo. M.L. v. Fed. Way Sch. Dist., 387 F.3d
1101, 1122 (9th Cir. 2004) amended by 394 F.3d 634 (2005); Abu-Sahyun
v. Palo Alto Unified School Dist., 843 F.2d 1250, 1252 (9th Cir. 1988).
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II. ANALYSIS
[1] The IDEA provides that “the court, in its discretion,
may award reasonable attorneys’ fees as part of the costs to
a prevailing party who is the parent of a child with a disabili-
ty.” 20 U.S.C. § 1415(i)(3)(B)(i). In order for a court to award
attorney’s fees, the parent must (1) be a “prevailing party”
and (2) seek “reasonable attorneys’ fees.”
The district properly found, and the parties do not disagree,
that Aguirre was a prevailing party under the IDEA. See Tex.
State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782 (1989). The parties, however, disagree on the standard
used to determine a reasonable fee. Aguirre asserts that she is
entitled to recover all her fees because she prevailed on a
“significant issue.” See Parents of Student W. v. Puyallup Sch.
Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994) (noting that
“[a] prevailing party for the purpose of awarding attorney’s
fees is a party which ‘succeed[s] on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing the suit’ ” (quoting Hensley, 461 U.S. at
433)). She claims that once the California SEHO found fault
in Carlos’s IEP, the court must award full fees because he was
denied a “free and appropriate public education.” The
LAUSD argues that the “significant issue” test is only the first
step in a fee award analysis. It argues that passing the “signifi-
cant issue” test merely makes Aguirre eligible for a fee award
as a prevailing party; it does not mandate recovery of all fees.
Accordingly, the school district argues, the court abused its
discretion in failing to apply the “degree of success” standard
announced by the Supreme Court in Hensley, a case brought
under 42 U.S.C. § 1988.2
[2] We thus turn to the question whether Hensley applies to
attorney’s fee awards under the IDEA. We first observe that
2Section 1988 is the general fee-shifting provision for federal civil
rights cases. 28 U.S.C. § 1988(b) (2003).
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the IDEA’s fee-shifting provision, 42 U.S.C. § 1415(i)(3)(B),
is nearly identical to 42 U.S.C. § 1988. Compare 20 U.S.C.
§ 1415(i)(3)(B)(i) (“the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs to a prevailing
party who is the parent of a child with a disability”) with 42
U.S.C. § 1988(b) (“the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs . . . .”).
[3] In Hensley, the Supreme Court considered “whether a
partially prevailing plaintiff may recover an attorney’s fee
[under § 1988] for legal services on unsuccessful claims.” 461
U.S. at 426. The Court held that a partially prevailing plaintiff
generally may not recover fees for her unsuccessful claims:
“the level of a plaintiff’s success is relevant to the amount of
fees to be awarded.” Id. at 430. The Court concluded that
“Congress has not authorized an award of fees whenever it
was reasonable for a plaintiff to bring a lawsuit or whenever
conscientious counsel tried the case with devotion and skill.
. . . [T]he most critical factor is the degree of success
obtained.” Id. at 436. Significantly, the Court declared the
standard announced in Hensley to be “generally applicable in
all cases in which Congress has authorized an award of fees
to a ‘prevailing party.’ ” Id. at 433 n.7.
[4] Just three years after Hensley, Congress enacted the fee-
shifting provisions of the IDEA’s predecessor statute, autho-
rizing attorney’s fees to a “prevailing party.” See Pub. L. No.
99-372, 100 Stat. 796 (1986) (codified at 20 U.S.C.
§ 1415(i)(3)(B); Barlow-Gresham Union High Sch. Dist. No.
2 v. Mitchell, 940 F.2d 1280, 1286 (9th Cir. 1991) (noting that
the IDEA predecessor statute was “amended in 1986 to pro-
vide attorneys’ fees for prevailing parents”). We must assume
that when Congress enacted the fee-shifting provisions, it
contemplated that the courts would construe it consistent with
Hensley. Indeed, given the Court’s clear directive that the
Hensley standard would govern all cases in which Congress
awarded attorney’s fees to a “prevailing party,” had Congress
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intended that the new fee-shifting provision in § 1415 not fol-
low Hensley, Congress would be required to make that
explicit. See Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990) (“We assume that Congress is aware of existing law
when it passes legislation.”); Lindahl v. Office of Pers. Mgmt.,
470 U.S. 768, 783 n.15 (U.S. 1985) (“Congress is presumed
to be aware of an administrative or judicial interpretation of
a statute and to adopt that interpretation when it reenacts a
statute without change”); Strom v. Goldman, Sachs & Co.,
202 F.3d 138, 147 (2d Cir. 1999) (“Congress is presumed . . .
to be aware of prior judicial interpretations of similar statu-
tory provisions.”). Thus, we have observed that “although [the
predecessor to IDEA] grants the district court discretion to
award fees, Congress intended [it] to be interpreted consistent
with fee provisions under 42 U.S.C. § 1988 and Title VII of
the Civil Rights Act of 1964.” Abu-Sahyun ex rel. Abu-
Sahyun v. Palo Alto Unified Sch. Dist., 843 F.2d 1250, 1252
(9th Cir. 1988).
[5] The legislative history for IDEA’s fee-shifting provi-
sions confirms our assumption. The House report accompany-
ing the 1997 amendments to the IDEA specifically addressed
the application of Hensley to the IDEA:
Questions have been raised regarding the relation-
ship between the extent of success of the parents and
the amount of attorneys’ fees a court may award. In
addressing this question, the Committee [on Educa-
tion and the Workforce] believes the amount of any
award of attorneys’ fees to a prevailing party under
part B shall be determined in accordance with the
law established by the Supreme Court in Hensley v.
Eckerhart, 461 U.S. 424 (1983) and its progeny.
As we stated in the 1986 report accompanying the
legislation that added the attorneys[’] fees provi-
sions: “It is the committee’s intent that the terms
‘prevailing party’ and ‘reasonable’ be construed con-
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sistent with the U.S. Supreme Court’s decision in
Hensley v. Eckerhart, 461 U.S. 424, 440 (1983).”
H.R. REP. NO. 105-95, at 105-06 (1997), reprinted at 1997
U.S.C.C.A.N. 78, 103-04; see also H.R. REP. NO. 99-687, at
5-6 (1986), reprinted at 1986 U.S.C.C.A.N. 1807, 1808 (cit-
ing Hensley); 132 CONG. REC. 16,825 (1986) (statement of
Sen. Hatch) (praising the new fees provision because it “in-
cludes the application of provisions from . . . Hensley versus
Eckerhart [and other] decisions to cases brought under part B
of the Education of the Handicapped Act in order to protect
against excessive reimbursement”).
Hensley has been broadly approved. We have applied
Hensley’s degree of success principles to a variety of fee-
shifting statutes, including civil rights claims, Americans
With Disability Act claims, and even state claims. See, e.g.,
Benton v. Or. Student Assistance Comm’n, 421 F.3d 901, 905
(9th Cir. 2005) (applying Hensley to civil rights claimant
under § 1988); Fischer v. SJB-P.D., Inc., 214 F.3d 1115,
1119-20 (9th Cir. 2000) (applying Hensley to ADA claimant
under 42 U.S.C. § 12205); McGinnis v. Ky. Fried Chicken, 51
F.3d 805, 809-10 (9th Cir. 1994) (applying Hensley to
employment discrimination suit under Washington law incor-
porating federal fee-shifting principles).
[6] Although we have not previously ruled on whether
Hensley’s “degree of success” standard applies in IDEA
cases, at least seven other circuits have held that it does, and
so far as we can tell, no circuit has concluded otherwise. See
Linda T. ex rel. William A. v. Rice Lake Area Sch. Dist., 417
F.3d 704, 708 (7th Cir. 2005) (noting that the “prevailing
party inquiry ‘does not turn on the magnitude of relief
obtained,’ but the size of the fee award does” (quoting Farrar
v. Hobby, 506 U.S. 103, 114 (1993)); Wikol ex rel. Wikol v.
Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 612 (6th
Cir. 2004) (“On remand, the district court should take into
consideration the extent to which the Wikols succeeded on
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their claims. . . . [They] may well receive reimbursement for
only a fraction of their total legal fees under the [Hensley v.]
Eckerhart standard but, under this court’s precedents, their
‘limited success’ should not have acted as a total bar to recov-
ery.”); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1030-
31 (8th Cir. 2003) (approving district court’s “discounted . . .
award of attorneys’ fees for work on unsuccessful or aban-
doned claims”); Holmes v. Millcreek Twp. Sch. Dist., 205
F.3d 583, 595-96 (3d Cir. 2000) (allowing one-fourth of fees
where student prevailed on some but not all claims); Jason
D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158
F.3d 205, 208-09 (5th Cir. 1998) (approving reduction of fees
based in part on limited success achieved at hearing); Urban
ex rel. Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720,
729 (10th Cir. 1996) (“Whether an award of attorney’s fees
is reasonable depends, in part, upon the degree of success
obtained by the plaintiff.”); In re Conklin, 946 F.2d 306, 316
(4th Cir. 1991) (approving the district court’s reduction of
fees because of “the limited nature of the appellants’ suc-
cess”).
Some circuits that have yet to address the application of the
degree of success test nonetheless approve the application of
§ 1988 principles to IDEA fee allocations. See A.R. ex rel.
R.V. v. N.Y. City Dep’t of Educ., 407 F.3d 65, 73 n.9 (2d Cir.
2005) (“We therefore continue to interpret the IDEA’s fee-
shifting provisions in consonance with section 1988 and other
federal civil fee-shifting statutes, unless there is a specific
reason—such as with regard to expert fees—not to do so.”);
Kathleen H. v. Mass. Dep’t of Educ., 154 F.3d 8, 14 (1st Cir.
1998) (“The standards governing the award of attorneys’ fees
under 42 U.S.C. § 1988 are applicable to awards under the
IDEA.”). Even where a circuit has not yet adopted the degrees
of success test, district courts within those circuits have
employed it. See, e.g., Lopez v. Dist. of Columbia, 383 F.
Supp. 2d 18, 22 (D.D.C. 2005) (“When awarding fees for a
partially successful plaintiff, it is crucial to first determine
whether the claims on which plaintiff prevailed are related to
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those which were unsuccessful.”); Mr. R. v. Me. Sch. Admin.
Dist. No. 35, 295 F. Supp. 2d 120, 121 (D. Me. 2003) (noting
that an award “may be adjusted up or down based [on] the
plaintiff’s degree of success in the lawsuit”). District courts
within our circuit have likewise employed Hensley in IDEA
cases. See, e.g., Noyes v. Grossmont Union High Sch. Dist.,
331 F. Supp. 2d 1233, 1248 (S.D. Cal. 2004) (noting that
“plaintiff’s degree of success is sufficient to support an
award” of fees); Miller v. San Mateo-Foster City Unified Sch.
Dist., 318 F. Supp. 2d 851, 864 (N.D. Cal. 2004) (“Any award
of attorneys’ fees must take this degree of success into
account.”).
Secondary authorities regard the rule as well established.
See JAMES A. RAPP, 4 EDUCATION LAW § 10.03(21)(f)(ii)(C)
(2005) (noting that the application of Hensley’s factors in
IDEA litigation is “[a] well-established process”). If we were
to hold that the degree of success need not be considered
under the IDEA’s fee-shifting provision, we would be alone
in doing so.
Finally, there are solid policy reasons for applying Hensley
in IDEA cases. First, Hensley represents the established stan-
dard for awarding attorney’s fees in civil rights cases. Since
the IDEA does not supply a standard different from other
standards governed by Hensley, either we would have to
create new criteria for judging awards under IDEA, or we
would have to defer entirely to lower courts, thereby permit-
ting fee awards to vary greatly from one case to the next, as
each judge applies his or her own criteria for arriving at a rea-
sonable fee. Second, the Hensley standard will not only guide
courts, but allow parties themselves to better assess the pro-
spective costs of legislation and make more informed choices
about when to litigate and when to settle. The rule will help
to deter parties (or their lawyers) from adding frivolous
claims that exacerbate disputes and strain the resources of
both parents and school districts. An established standard will
also help parents and school districts settle post-litigation fee
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disputes without undertaking a second round of lawsuits. See
Hensley, 461 U.S. at 437 (“A request for attorney’s fees
should not result in a second major litigation”).
The Hensley standard will help deter submission of multi-
ple, nonmeritorious claims. It is understandable that without
cost considerations, parents facing litigation would bring as
many claims as possible, hoping to secure a larger share of the
district’s resources—whether in the form of reimbursements,
additional staff time, or educational technology—than would
be otherwise allotted to their children. Lawyers may also have
incentive to bring baseless claims in order to increase billable
hours devoted to a case. Acquiring a client with one strong
claim should not give special education attorneys the green
light to bill time on every conceivable issue. All children suf-
fer when the schools’ coffers are diminished on account of
expensive, needless litigation. In order to balance the needs of
IDEA claimants and school districts, Hensley offers parents
and their lawyers an incentive to avoid making frivolous
claims while preserving their ability to raise meritorious
claims.
Hensley’s rule will not bar parents from pursuing valid
claims. It permits fees “adequate to attract competent counsel,
but which do not produce windfalls to attorneys.” Hensley,
461 U.S. at 430 n.4. Though parents do not always seek
money under IDEA, they may still recover fees where they
attain “other tangible results—such as sparking a change in
policy or establishing a finding of fact.” Wilcox v. City of
Reno, 42 F.3d 550, 555 (9th Cir. 1994).
Hensley does not strip the district court of its discretion in
awarding fees, nor does it eliminate flexibility in granting
them. The Court has acknowledged that the rule is broad
enough, in appropriate cases, to permit an award of full fees
even where a party did not prevail on every contention. See
Hensley, 461 U.S. at 435. On the other hand, there are circum-
stances when “even a plaintiff who formally ‘prevails’ . . .
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should receive no attorney’s fees at all.” Farrar, 506 U.S. at
115. As the Court summarized:
There is no precise rule or formula for making these
determinations. The district court may attempt to
identify specific hours that should be eliminated, or
it may simply reduce the award to account for the
limited success. The court necessarily has discretion
in making this equitable judgment. This discretion,
however, must be exercised in light of the consider-
ations we have identified.
Hensley, 461 U.S. at 436-37.
III. CONCLUSION
[7] In sum, we hold that attorney’s fees awarded under 20
U.S.C. § 1415 are governed by the standards set forth by the
Supreme Court in Hensley and its progeny. The district court
in this case made a partial attorney’s fees award to Aguirre.
It does not appear from the record that the district court
applied Hensley—though the award may ultimately prove
consistent with Hensley—because it did not consider Aguir-
re’s degree of success. We therefore vacate the fee award and
remand to the district court for apportionment of a fee award
in accord with Hensley and its progeny.
VACATED and REMANDED.
PREGERSON, Circuit Judge, specially concurring:
I concur in Judge Bybee’s thorough and thoughtful opinion.
I write separately to make clear my view that, although the
district court may have erred by failing to apply the “degree
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of success” test, it did not abuse its discretion when it
awarded Aguirre $21,104.24.1
As discussed in the opinion, for a court to award attorney’s
fees under 20 U.S.C. § 1415(i)(3)(B), a parent (1) must be a
“prevailing party” and (2) must seek “reasonable attorneys’
fees.” 20 U.S.C. § 1415(i)(3)(B)(I). Like my colleagues, I
believe that Aguirre was a prevailing party in this case. Thus,
the remaining issue is what constitutes “reasonable attorneys’
fees” in this case.
When applying the degree of success test, the Supreme
Court has recognized that a plaintiff who prevails in only part
of her claims may not be entitled to recover fees for her
unsuccessful claims. See Hensley v. Eckerhart, 461 U.S. 424,
430 (1983). Rather, as a general rule, “the level of a plaintiff’s
success is relevant to the amount of fees to be awarded.” Id.
In this case, Aguirre prevailed on four of the twenty-seven
issues she raised.
The school district contends that, because Aguirre prevailed
on only a fraction of her challenges, her success was de mini-
mus and that, had the district court applied the “degree of suc-
cess” rather than the “significant issue” test, the attorney fee
award would have been substantially lower. I disagree.
Aguirre was awarded use of assistive technology for eight
months because the school district failed to conduct a timely
assessment for assistive technology and failed to provide the
technology. The monetary value of this relief may be but a
portion of all the relief sought in the twenty seven claims, but
that does not render this relief de minimus. See Thomas v. City
of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005) (“To deny an
award of attorney’s fees notwithstanding Plaintiff’s clear vic-
tory on one of his claims for relief is an abuse of discretion;
a reasonable fee in this case is not no fee at all.”).
1The district court, acting in its discretion, awarded Aguirre approxi-
mately half of the $42,104.92 she requested.
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Hensley states that “unless special circumstances would
render such an award unjust,” a prevailing plaintiff “should
ordinarily recover an attorney’s fee.” Hensley, 461 U.S. at
429 (internal quotation marks omitted); see also Herrington
v. County of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989) (stat-
ing that in civil rights cases, “fee awards should be the rule
rather than the exception”) (internal quotation marks omitted).
Because there are no “special circumstances” in this case,
Aguirre is entitled to a reasonable fee award. See Fischer v.
SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000).
Further, the district court is not required to calculate a fee
award by looking solely to the number of successful claims.
That is, nothing in Hensley suggests that Aguirre is entitled to
only 14.8% or 4/27 of the fee requested because she prevailed
on only four of twenty seven claims. This is true because
some claims may seek dramatic or more substantial relief,
while others seek minor relief; the fee award must be calcu-
lated with careful consideration of the degree of success the
prevailing party obtained. See id. at 436.
In formulating attorneys’ fee awards, a district court can
employ its discretion, a point recognized by our opinion. See,
e.g., Maj. Op. at 10403 (“Hensley does not strip the district
court of its discretion in awarding fees, nor does it eliminate
flexibility in granting them.”); see also Neosho R-V Sch. Dist.
v. Clark, 315 F.3d 1022, 1030 (8th Cir. 2003) (recognizing
that the district court has the discretion to fashion fee awards
based on its determination on the prevailing party’s degree of
success). “In exercising this discretion, district courts are
given ‘wide latitude.’ ” The Traditional Cat Ass’n, Inc. v. Gil-
breath, 340 F.3d 829, 833 (9th Cir. 2003) (internal citation
omitted); see also Hensley, 461 U.S. at 435 (acknowledging
that the rule is broad enough, in appropriate cases, to permit
an award of full fees even where a party did not prevail on
every challenge).
When determining the proper fee award, it is important for
the court to determine whether Aguirre prevailed on claims
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that are related or unrelated to her unsuccessful claims. See
Thomas, 410 F.3d at 649. To determine whether the claims
are related, the district court should focus on whether the
claims on which Aguirre did not prevail “involve a common
core of facts or are based on related legal theories,” when
compared to the successful claims. Id. To the extent the suc-
cessful and unsuccessful claims are related, Aguirre should
recover reasonable fees for prosecuting those claims. See id.
However, a determination that certain claims are not related
does not automatically bar an award of attorney’s fees associ-
ated with those unrelated claims; work performed in pursuit
of the unrelated claims may be inseparable from that per-
formed in furtherance of the related or successful claims. See
id.
In Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001), the
defendant argued that the district court abused its discretion
in failing to reduce the plaintiffs’ award based on the “limited
success” that the plaintiffs achieved in the litigation. Id. at
1147. However, because the plaintiffs’ claims were all related
— all focused on improving Oregon’s disability determina-
tion system — we found that the plaintiffs were entitled to
almost all of the requested fees. See id. We based our reason-
ing on the fact that the plaintiffs’ claims “ ‘involve[d] a com-
mon core of facts’ ” and were “ ‘based on related legal
theories.’ ” Id. (quoting Hensley, 461 U.S. at 435). Because
“[m]uch of counsel’s time will be devoted generally to the lit-
igation as a whole . . . [s]uch a lawsuit cannot be viewed as
a series of discrete claims.” Id. (quoting Hensley, 461 U.S. at
435).
In this case, Aguirre prevailed on four claims that asserted
that the school district had failed to provide Carlos with the
appropriate assistive technology. In comparing these claims
with her twenty-three unsuccessful claims, the district court
could reasonably find that all twenty-seven claims are suffi-
ciently related because they all alleged that the school district
failed to provide her son with the necessary components of a
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free and appropriate public education over the course of a
two-year period. Because Aguirre’s lawsuit involved a “com-
mon core of facts” and her various claims were “based on
related legal theories,” it would be reasonable for a district
court to award her a substantial portion of the requested fees.
Here, the district court recognized that Aguirre “achieve[d]
some of the benefit the parties sought in bringing the suit.”
Because Aguirre obtained a benefit from her suit — a benefit
that may be quite substantial to her and her son — and she
prevailed on claims that are related to her unsuccessful
claims, I believe that an attorneys’ fee award of $21,104.24
is not an abuse of discretion, under the “degree of success”
test.
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