DiBuo Ex Rel. DiBuo v. Board of Education

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK DIBUO, a minor, by his 

parents and next friends, James and

Wendy DiBuo; JAMES DIBUO;

WENDY DIBUO,

Plaintiffs-Appellees,

 No. 01-2473

v.

BOARD OF EDUCATION OF WORCESTER

COUNTY; JON ANDES, Officially,

Defendants-Appellants.



MARK DIBUO, a minor, by his 

parents and next friends, James and

Wendy DiBuo; JAMES DIBUO;

WENDY DIBUO,

Plaintiffs-Appellees,

 No. 02-1124

v.

BOARD OF EDUCATION OF WORCESTER

COUNTY; JON ANDES, Officially,

Defendants-Appellants.



Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, Chief District Judge.

(CA-01-1311-S)

Argued: September 24, 2002

Decided: October 28, 2002

2 DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY

Before MICHAEL, Circuit Judge,

HAMILTON, Senior Circuit Judge, and

Claude M. HILTON, Chief United States District Judge

for the Eastern District of Virginia, sitting by designation.

Vacated and remanded with instructions by published opinion. Senior

Judge Hamilton wrote the opinion, in which Judge Michael and Chief

Judge Hilton joined.

COUNSEL

ARGUED: Phillip Tyson Bennett, REESE & CARNEY, L.L.P.,

Annapolis, Maryland, for Appellants. Wayne Darryl Steedman, CAL-

LEGARY & STEEDMAN, P.A., Baltimore, Maryland, for Appellees.

ON BRIEF: Eric C. Brousaides, REESE & CARNEY, L.L.P.,

Columbia, Maryland, for Appellants.

OPINION

HAMILTON, Senior Circuit Judge:

In this action arising under the Individuals with Disabilities Educa-

tion Act (the IDEA), 20 U.S.C. §§ 1400 et seq., Mark DiBuo (Mark),

a minor child, and his parents, James and Wendy DiBuo, (collectively

the DiBuos) sought $2,707.00 in reimbursement from the Board of

Education of Worcester County, Maryland and its superintendent in

his official capacity, Jon Andes, (collectively the School District) for

the costs associated with the private placement of Mark in

speech/language therapy and occupational therapy through Easter

Seals during the summer of 2000.1 The district court granted summary

1

In IDEA parlance, educational services provided to a disabled child

during the summer in a school system where children do not normally

attend school during the summer are called extended school year services

(ESY Services). 34 C.F.R. § 300.309.

DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY 3

judgment in favor of the DiBuos and awarded them $58,567.48 in

attorneys’ fees and other costs, pursuant to the IDEA’s fee-shifting

provision, 20 U.S.C. § 1415(i)(3)(B). For reasons that follow, we

vacate the district court’s judgment, vacate the award of attorneys’

fees and other costs, and remand the case for further proceedings in

accordance with this opinion.

I.

The following facts are not in dispute. Mark was born on Decem-

ber 19, 1996. By age three, Mark exhibited interfering behaviors that

impacted his ability to benefit from a normal educational program.

The interfering behaviors included "great difficulty ‘attending’ to a

task, the inability to focus, squirming, kicking, hitting, moving away

and otherwise not cooperating with learning strategies." (J.A. 392).

Mark’s problems led his parents to seek IDEA services for him from

the School District. As a result, on February 8, 2000, an Individual-

ized Education Program (IEP) team met regarding Mark.2 At this

meeting, all agreed that Mark should be considered a student with a

speech/language disability who requires special education services in

order to receive a FAPE. Thus, on February 17, 2000, Mark began an

interim placement at Buckingham Elementary School in the Language

Stimulation Program for three year olds, pending another meeting of

Mark’s IEP team (Mark’s IEP Team).

Mark’s disability is classified as "Pervasive Developmental Disor-

der" (PDD), and it is suspected that he may also have neurofibromato-

sis. His PDD was diagnosed by expert physicians at the A.I. DuPont

Hospital for children in March 2000. The A.I. DuPont physicians

determined that Mark has a rather significant disability with language

and also problems with auditory processing that were causing some

behavioral problems. The A.I. DuPont physicians also determined

2

The IDEA requires all states receiving federal funds for education to

provide each child between the ages of three and twenty-one, who has

a disability, with a free appropriate public education (FAPE) that is

designed specifically to meet that child’s needs. 20 U.S.C.

§ 1412(a)(1)(A). An IEP team generally consists of a representative of

the school district, the child’s teacher, the parents or guardian and, when

appropriate, the child himself. 20 U.S.C. § 1414(d)(1)(B).

4 DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY

that Mark’s disability required that he receive speech/language ther-

apy and occupational therapy.

From February 17, 2000 until March 29, 2000, Mark made remark-

able progress in his Speech/Language Stimulation Program at Buck-

ingham Elementary School, such that he became able to accompany

his family to restaurants. After completion of an educational assess-

ment by Holly Hermstedt, Mark’s classroom teacher at Buckingham

Elementary School, Mark’s IEP Team met again on March 29, 2000

(the March 29, 2000 IEP Meeting) in order to prepare a formal IEP.

At this meeting, Mark’s IEP Team considered a speech/language and

occupational therapy assessment conducted by Easter Seals in

November 1999, as well as the educational assessment conducted by

Holly Hermstedt. Based upon this information, Mark’s IEP Team

concluded that Mark’s interfering behaviors and educational needs

required speech/language therapy and occupational therapy. Thus, at

the March 29, 2000 IEP Meeting, the School District members of

Mark’s IEP Team proposed an IEP for him (the Proposed IEP), which

contained specific objectives to address Mark’s weaknesses.3 In order

to meet these specific objectives, the Proposed IEP provided that

Mark should participate twelve hours per week in the Buckingham

Language Stimulation Program4; receive one hour per week of

speech/language therapy; and receive one hour per week of occupa-

tional therapy.

Mark’s parents, for their part, agreed with the Proposed IEP as far

as it went, but expressed their strong feelings that Mark should

receive ESY Services during the summer of 2000. In support of their

position, Mark’s parents produced written evaluations from the fol-

lowing professionals: (1) Stephen Falchek, M.D., (Dr. Falchek) dated

3

Virtually every objective on the educational component of the Pro-

posed IEP concerned emerging skills and breakthrough opportunities

with regard to Mark’s communication and language skills, his attending

skills, his toileting skills, and his safety skills.

4

Mark was developing numerous critical life skills in the Buckingham

Language Stimulation Program, including attending skills, social skills,

toileting skills, comprehending vocabulary, using language interactively,

using sensory information more effectively, and improving fine motor

skills and visual perception.

DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY 5

December 27, 1999, March 14, 2000, and March 23, 2000; (2) Susan

Stine, M.D., (Dr. Stine) dated March 7, 2000; and (3) Jill Linden,

Ph.D. in psychology, (Dr. Linden) undated.5 In one of his evaluations,

Dr. Falchek stated that he feared that Mark would "lose significant

ground" if he did not receive ESY Services during the summer of

2000. (J.A. 44). In another of Dr. Falchek’s evaluations, he opined

that Mark should receive ESY Services for the summer of 2000

because Mark was "quite tenuous" in his development. (J.A. 43). Dr.

Stine recommended that Mark be considered for ESY Services during

the summer of 2000. Dr. Linden opined that "it is important that

[Mark] continue in a school program that includes classroom time

plus speech and occupational therapies all year round, with no sum-

mer break." (J.A. 33).

The School District members of Mark’s IEP Team staunchly

refused to read or review any of these professional evaluations sub-

mitted by Mark’s parents. According to Kathy Simon, a representa-

tive of the Worcester County School System who was present at the

March 29, 2000 IEP Meeting, the School District members of Mark’s

IEP Team refused to consider the evaluations because they believed

that Mark was simply not eligible for ESY Services.

Mark’s parents refused to sign the Proposed IEP because it did not

include ESY Services for the summer of 2000. Nevertheless, with the

consent of his parents, Mark continued to receive interim services for

the remainder of the regular 1999-2000 school year that were basi-

cally consistent with those contained in the Proposed IEP. Then, at

their own expense, Mark’s parents obtained speech/language therapy

and occupational therapy for Mark through Easter Seals during the

summer of 2000.6

On October 19, 2000, the DiBuos requested a due process hearing

before an administrative law judge (the ALJ) to consider their claim

that the School District must reimburse them for the ESY Services

5

From here forward, these private evaluations submitted by Mark’s

parents will be referred to as "the DiBuos’ ESY Services Evaluations."

6

Notably, Mark did not receive occupational therapy from August 3,

2000 to August 27, 2000, because his occupational therapist was unavail-

able.

6 DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY

(speech/language therapy and occupational therapy) that they pri-

vately obtained for Mark during the summer of 2000.7 On November

9, 2000, the School District responded with a motion to dismiss and

an alternative motion for a summary decision. The DiBuos opposed

these motions and on November 16, 2000, filed their own motion for

summary decision.

On December 1, 2000, the ALJ denied the parties’ respective

motions and set the case for a full hearing on the merits. At the hear-

ing, which was conducted on December 7 and 8, 2000, the ALJ heard

testimony and received exhibits on behalf of the respective parties.

On January 5, 2001, the ALJ issued a final decision. Of relevance

in the present appeal, the ALJ found that the staunch refusal of the

School District members of Mark’s IEP Team to consider the

DiBuos’ ESY Services Evaluations at the March 29, 2000 IEP Meet-

ing, violated the IDEA’s related mandates that the parents of a child

under review be afforded the opportunity to participate in all IEP

team meetings and that the IEP team review all evaluations and infor-

mation provided by parents of a child under review. 20 U.S.C.

§§ 1414(c)(1)(A), 1415(b); see also 34 C.F.R. § 300.502(c). Then,

citing our decision in Gadsby v. Grasmick, 109 F.3d 940 (4th Cir.

1997), for the proposition that not every procedural violation of the

IDEA warrants granting the relief requested, the ALJ also found that

Mark "was not denied [a] FAPE as a result, because the evidence

[did] not establish that ESY [S]ervices were warranted under the legal

standard."8 (J.A. 399). The ALJ made this finding after considering

7

Technically, the case before the ALJ was captioned "Mark DiBuo v.

Worcester County Public Schools." For the sake of continuity and ease

of reading, we will refer to the parties before the ALJ as we refer to them

in the federal action before us on appeal.

8

Similarly, the ALJ stated near the very end of her final decision that:

"I agree with [the DiBuos] that the [School District] erred by not consid-

ering the expert medical reports and evaluations presented at the March

29, 2000 IEP [T]eam [M]eeting. Nevertheless, when that expert evidence

is considered in light of all the evidence of record, it does not establish

that [Mark] will have a regression/recoupment problem of sufficient

severity to preclude him from receiving some educational benefit if he

does not receive ESY [S]ervices. Accordingly, I cannot conclude that the

DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY 7

and analyzing the expert written opinions and testimony offered by

the DiBuos during the hearing (which included the DiBuos’ IEP Ser-

vices Evaluations) and the expert testimony offered by the School

District at the hearing. Near the end of the ALJ’s final decision, she

formally concludes that the Proposed IEP offered Mark a FAPE.

Accordingly, the ALJ declined to grant the DiBuos the reimbursement

they were seeking.

As parties aggrieved by the ALJ’s final decision, the DiBuos filed

the present civil action against the School District, pursuant to 20

U.S.C. § 1415(i)(2)(A), in the United States District Court for the

District of Maryland. On cross motions for summary judgment, the

district court granted the DiBuos’ motion for summary judgment and

denied the School District’s motion for summary judgment. Thus, the

district court ordered the School District to pay the DiBuos the reim-

bursement they were seeking, and also awarded the DiBuos

$58,567.48 in attorneys’ fees and other costs pursuant to the IDEA’s

fee-shifting provision.

In granting summary judgment for the DiBuos, the district court

concluded that the refusal of the School District members of Mark’s

IEP Team to consider the DiBuos’ ESY Services Evaluations "seri-

ously infringed the parents’ opportunity to participate in the IEP for-

mulation process," and ipso facto, "Mark and his parents suffered

substantive harm." (J.A. 423). Based upon this conclusion and notably

without addressing whether the ALJ erred in finding that the Proposed

IEP would have provided Mark with a FAPE, despite its lack of any

provision for ESY Services for the summer of 2000, the district court

ordered the School District to reimburse the DiBuos for the ESY Ser-

March 29, 2000 IEP proposed by the [School District] failed to offer [a]

FAPE by its exclusion of ESY [S]ervices." (J.A. 403-04).

In our circuit, whether an IEP is "appropriate" for purposes of the

IDEA is a question of fact. Doyle v. Arlington County Sch. Bd., 953 F.2d

100, 105 (4th Cir. 1991) (observing that whether an IEP is appropriate

under the IDEA is a question of fact).

8 DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY

vices (speech/language therapy and occupational therapy) that Mark

received during the summer of 2000.9

On appeal, the School District does not challenge the district

court’s determination that it violated certain procedural requirements

of the IDEA by failing to consider the DiBuos’ ESY Services Evalua-

tions at the March 29, 2000 IEP Meeting in determining whether

Mark should receive ESY Services for the summer of 2000. Rather,

the School District vigorously challenges the district court’s entry of

judgment in favor of the DiBuos without determining whether the

ALJ erred in finding that such procedural violations did not actually

interfere with the provision of a FAPE to Mark. According to the

School District, a procedural violation of the IDEA cannot support a

finding that a school district failed to provide a disabled child a FAPE

unless the procedural violation actually interfered with the provision

of a FAPE to that child. The School District then goes on to contend

that we should review the ALJ’s finding on this point in the first

instance and uphold it. On this basis, the School District seeks rever-

sal of the judgment entered by the district court and vacature of its

award of attorneys’ fees and other costs. Alternatively, the School

District seeks the same ultimate outcome on the basis that because

Mark did not already have an approved IEP in place when his IEP

Team considered whether he should also be provided ESY Services

for the summer of 2000, he was ineligible for such services. In the

event we affirm the judgment of the district court, the School District

also makes numerous challenges to the award of attorneys’ fees and

other costs, including a challenge to the district court’s award of

expert witness fees as part of costs.

On appeal, the DiBuos seek affirmance of the judgment entered by

the district court and its award of attorneys’ fees and other costs in

their favor. However, if we address the issue of whether the ALJ erred

in finding that the Proposed IEP provided Mark a FAPE, despite its

lack of any provision for ESY Services for the summer of 2000, the

DiBuos contend that the ALJ did so err.

9

The district court also rejected the School District’s argument that the

lack of an already approved IEP for Mark at the time ESY Services were

being considered barred him from being eligible for ESY Services for the

summer of 2000.

DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY 9

II.

Before delving into the legal issues presented in this appeal, we

believe it helpful to further elucidate the statutory backdrop that we

encounter in this case. Congress enacted the IDEA, in part, "to ensure

that all children with disabilities have available to them a free appro-

priate public education that emphasizes special education and related

services designed to meet their unique needs and prepare them for

employment and independent living." 20 U.S.C. § 1400(d)(1)(A); see

also Gadsby, 109 F.3d at 942. Another purpose of the IDEA is "to

ensure that the rights of children with disabilities and parents of such

children are protected." 20 U.S.C. § 1400(d)(1)(B). In order to

achieve these and other stated purposes, the IDEA requires all states

receiving federal funds for education to provide each child, between

the ages of three and twenty-one, who has a disability, a FAPE that

is designed specifically to meet that child’s needs. 20 U.S.C.

§ 1412(a)(1)(A).

Congress saw parental participation in the process of developing an

IEP as integral to achieving the noble purposes of the IDEA. As the

Supreme Court stated in Board of Education of Hendrick Hudson

Central School District v. Rowley, 458 U.S. 176 (1982):

It seems to us no exaggeration to say that Congress placed

every bit as much emphasis upon compliance with proce-

dures giving parents and guardians a large measure of par-

ticipation at every stage of the administrative process . . . as

it did upon the measurement of the resulting IEP against a

substantive standard.

Id. at 205-06. Notably, although the IDEA requires that "[s]tates must

provide specialized instruction and related services sufficient to con-

fer some educational benefit upon the handicapped child," it "does not

require the furnishing of every special service necessary to maximize

each handicapped child’s potential." Hartmann v. Loudoun County

Bd. of Educ., 118 F.3d 996, 1001 (4th Cir. 1998) (internal quotation

marks and citations omitted).

Of particular relevance in the present appeal, in MM v. School Dis-

trict of Greenville County, No. 01-1364, 2002 WL 31001195 (4th Cir.

10 DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY

Sept. 6, 2002), we recently articulated, for the first time, a formal

standard for determining when ESY Services are appropriate under

the IDEA: "ESY Services are only necessary to a FAPE when the

benefits a disabled child gains during a regular school year will be

significantly jeopardized if he is not provided with an educational

program during the summer months." Id. at *11. In MM, we carefully

emphasized that, under this standard, "the mere fact of likely regres-

sion is not a sufficient basis, because all students, disabled or not,

may regress to some extent during lengthy breaks from school." Id.

III.

We now turn to the threshold question presented in this appeal:

Whether a procedural violation of the IDEA can support a finding that

a school district failed to provide a disabled child with a FAPE when

the procedural violation did not actually interfere with the provision

of a FAPE to that child. The answer to this question, under well-

established circuit precedent, is no.

Most recently, in MM, we relied upon our decision in Gadsby v.

Grasmick, 109 F.3d 940 (4th Cir. 1997) to reiterate that "[w]hen . . .

a procedural [violation of the IDEA] exists, we are obliged to assess

whether it resulted in the loss of an educational opportunity for the

disabled child, or whether, on the other hand, it was a mere technical

contravention of the IDEA." MM, 2002 WL 31001195 at *7. In Gad-

sby, the parents of a disabled child contended that Maryland’s State

Board of Education violated a particular notice provision of the IDEA

when it failed to notify them before effectively denying the applica-

tion for reimbursement for private school tuition that had been sub-

mitted to the Board by their local education agency on behalf of their

son. Gadsby, 109 F.3d at 956. According to the parents, this violation

constituted an independent denial of a FAPE to their son, giving rise

to an obligation to reimburse them for the remaining portion of their

son’s private school tuition for the 1993-94 school year. Id.

In addressing this latter contention, we acknowledged in Gadsby

that, in Hall v. Vance County Board of Education, 774 F.2d 629 (4th

Cir. 1985), we "held that the failure to comply with [the] IDEA’s pro-

cedural requirements, such as the [parental] notice provision, can be

a sufficient basis for holding that a government entity has failed to

DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY 11

provide a free appropriate public education." Gadsby, 109 F.3d at

956. But our holding in Hall does not mean that violation of a proce-

dural requirement of the IDEA (or one of its implementing regula-

tions), in the absence of a showing that the violation actually

interfered with the provision of a FAPE to the disabled child, consti-

tutes a sufficient basis for holding that a government entity failed to

provide that child a FAPE. We took the opportunity in Gadsby to

clarify our holding in Hall as follows: "However, to the extent that

the procedural violations did not actually interfere with the provision

of a free appropriate public education, these violations are not suffi-

cient to support a finding that an agency failed to provide a free

appropriate public education." Id. Accord Tice v. Botetourt County

Sch. Bd., 908 F.2d 1200, 1207 (4th Cir. 1990) (no relief granted

where the procedural violations complained of had no impact on

whether plaintiff-student’s IEP adequately assured him of a FAPE);

Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir.

1990) ("the procedural faults committed by the Board in this case did

not cause Chris to lose any educational opportunity"). Thus, under our

circuit precedent, a violation of a procedural requirement of the IDEA

(or one of its implementing regulations) must actually interfere with

the provision of a FAPE before the child and/or his parents would be

entitled to reimbursement relief of the type sought by the DiBuos.

Succinctly stated, the DiBuos’ principal argument in response to

the circuit precedent just set forth is that the "actual interference"

requirement of Gadsby is always satisfied when a procedural viola-

tion of the IDEA (or one of its implementing regulations) causes

interference with the parents’ ability to participate in the IEP process.

In other words, the DiBuos propose a broad legal rule to the effect

that a procedural violation of the IDEA (or one of its implementing

regulations) that causes interference with the parents’ ability to partic-

ipate in the IDEA process per se constitutes a denial of a FAPE to the

disabled child at issue.10 The DiBuos contend that such a broad legal

rule is sensible given that parental participation in the IEP process is

so important to the noble purposes of the IDEA.

10

This is the same rationale used by the district court in ruling in favor

of the DiBuos on the merits of their reimbursement claim.

12 DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY

We have no doubt that a procedural violation of the IDEA (or one

of its implementing regulations) that causes interference with the par-

ents’ ability to participate in the development of their child’s IEP will

often actually interfere with the provision of a FAPE to that child. For

example, if: (1) the school district members of an IEP team refuse to

consider the private evaluations offered by the parents of a deaf child

establishing that their child needs to be taught by a teacher with the

ability to communicate in sign language in order for the child to

receive a FAPE, (2) contrary evidence is insufficient to rebut the con-

clusions of the private evaluations on the same point, and (3) the IEP

ultimately does not provide for the child to be taught by such a

teacher, the school district’s refusal to place the child in a classroom

with the special teacher no doubt actually interferes with the provision

of a FAPE to that child. But often is not the same as always. For

example, when a presumably correct finding is made that the same

disabled child, under the applicable standards of the IDEA, did not

need to be taught by a teacher with the ability to communicate in sign

language in order to receive a FAPE, the refusal to consider the pri-

vate evaluations cannot be said to have actually interfered with the

provision of a FAPE to that child.

In the present case, the ALJ made a finding that Mark was not enti-

tled to ESY Services and, therefore, the refusal of the School District

members of Mark’s IEP Team to consider the DiBuos’ ESY Services

did not result in Mark being denied a FAPE—i.e., the refusal did not

actually interfere with the provision of a FAPE to Mark.11 Under our

well-established circuit precedent, e.g., Gadsby, 109 F.3d at 956;

11

Significantly, we recognize that the three factors primarily consid-

ered by the ALJ in determining whether Mark was entitled, under the

IDEA, to ESY Services for the summer of 2000, when viewed collec-

tively, amount to the same standard that we formally articulated in MM

for determining when ESY Services are appropriate under the IDEA,

2002 WL 3100195 at *11. The three factors primarily considered by the

ALJ are: (1) whether there is a likelihood of substantial regression of

critical life skills caused by the school break and a failure to recover the

lost skills in a reasonable time following the break; (2) whether the

nature and/or severity of the disability will likely prevent Mark from

receiving some educational benefit; and (3) whether there are any special

circumstances that will prevent Mark from receiving some benefits from

the educational program during the next school year.

DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY 13

Tice, 908 F.2d at 1207; Burke County Bd. of Educ., 895 F.2d at 982,

precedent the district court simply failed to recognize, if this finding

by the ALJ is correct, the DiBuos are not entitled to reimbursement

for the private placement of Mark in speech/language therapy and

occupational therapy during the summer of 2000. Thus, the district

court’s erroneous failure to decide whether it accepts or rejects this

finding by the ALJ requires that we vacate the judgment entered by

the district court and the district court’s award of attorneys’ fees and

other costs and remand the case to the district court for further pro-

ceedings.

We instruct the district court to determine on remand whether it

accepts or rejects the ALJ’s finding (and those necessarily underlying

it) that Mark was not entitled to ESY Services and, therefore, the

refusal of the School District members of Mark’s IEP Team to con-

sider the DiBuos’ ESY Services did not result in Mark being denied

a FAPE. In so doing, the district court must consider the ALJ’s find-

ings to be prima facie correct and explain why, under this due weight

standard, it has chosen to accept or not accept each of those findings.

Hartmann v. County Bd. of Educ., 118 F.3d 996, 1000-01 (4th Cir.

1997) ("Administrative findings in an IDEA case are entitled to be

considered prima facie correct.") (internal quotation marks omitted);

Doyle, 953 F.2d at 106 (remanding IDEA case to district court for

determination of whether student’s IEP would give her a FAPE and

instructing district court to review each administrative finding pertain-

ing to this issue under the due weight standard and "explain why,

under the due weight standard, it has chosen to accept or not accept

that finding").

If, on remand, the district court chooses to accept the ALJ’s finding

that Mark was not entitled to ESY Services and, therefore, the refusal

of the School District members of Mark’s IEP Team to consider the

DiBuos’ ESY Services did not result in Mark being denied a FAPE,

the district court must enter judgment in favor of the School District.

To grant the reimbursement requested by the DiBuos, in the event the

district court chooses to accept the ALJ’s finding that Mark was not

entitled to ESY Services for the summer of 2000, would grant the

DiBuos undeserved monetary relief. School Committee of Town of

Burlington v. Department of Ed. of Mass., 471 U.S. 359, 370-71

(1985) ("Reimbursement [remedy under IDEA] merely requires [local

14 DIBUO v. BD. OF EDUC. OF WORCESTER COUNTY

education agency] to belatedly pay expenses that it should have paid

all along and would have borne in the first instance had it developed

a proper IEP."). In light of our disposition, we express no opinion on

the School District’s alternative argument that Mark was ineligible for

ESY Services for the summer of 2000 because he did not have an

already approved IEP in place. We also express no opinion on the

issues of whether and in what amount attorneys’ fees and other costs

would be recoverable by the DiBuos in the event they have the oppor-

tunity to make another motion under the IDEA’s fee-shifting provi-

sion, 20 U.S.C. § 1415(i)(3)(B).

IV.

In conclusion, we vacate the judgment of the district court and the

district court’s award of attorneys’ fees and other costs, and remand

this case to the district court for further proceedings in accordance

with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS