S. v. Scranton School Dist.

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

10-18-2000

S. v. Scranton School Dist.

Precedential or Non-Precedential:

Docket 00-3050

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Filed October 18, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3050

DANIEL S., a minor by his parents and next friends,

Cynthia and Scott S.; CYNTHIA S.; SCOTT S., on their

own behalf

v.

SCRANTON SCHOOL DISTRICT,

Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 98-cv-00243)

District Judge: The Honorable A. Richard Caputo

ARGUED July 18, 2000

BEFORE: BECKER, Chief Judge, SLOVITER, and

NYGAARD, Circuit Judges.

(Filed October 18, 2000)

Harry P. McGrath, Esq. (Argued)

Suite 532, 538 Spruce Street

Scranton Life Building

Scranton, PA 18503

Attorney for Appellant

Mary A. Clausen, Esq. (Argued)

R.D. #1, P.O. Box 1494

Saylorsburg, PA 18353

Attorney for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

In this case, filed under the Individuals with Disabilities

Education Act, 20 U.S.C. SS 1400-1490, the Scranton

School District appeals from an order granting attorneys'

fees to the parents of Daniel S. under S 1415(i)(3)(B) of the

Act. The School District argues that the meeting for which

attorneys' fees were awarded was not "convened as a result

of an administrative proceeding or judicial action," and that

the fee award was thus barred by the Act. We disagree, and

will affirm the District Court's order.

I. Background Law

Congress enacted the Individuals with Disabilities

Education Act to ensure that educational programs were

available to children with disabilities, to enable responsible

educational authorities to provide appropriate educational

programs, and to assure the effectiveness of such

programs. See 20 U.S.C. S 1400(d). To that end, the Act

provides financial assistance to states that comply with its

requirements. See id. SS 1411, 1412. One provision requires

each participating state to identify and evaluate the needs

of all children residing within its borders who are disabled

and who need special education or related services. See id.

S 1412(a)(3)(A).

Once the state has identified and evaluated a disabled

child in need of special education and related services, it

must have an Individual Educational Program (IEP) in effect

for that child at the beginning of each school year. See id.

S 1414(d)(2)(A); see also id. S 1414(d)(1)(A) (identifying the

required components of an IEP). Each IEP is designed by an

"IEP Team" composed of the parents of the child, a multi-

disciplinary collection of appropriately qualified educational

professionals, and, when appropriate, the child. See id.

S 1414(d)(1)(B).

The Act requires participating states to establish a

comprehensive set of procedural safeguards designed to

2

protect the interests of all parties. See id. S 1415. One such

safeguard allows parents who have lodged complaints about

the identification, evaluation, placement, or IEP

development processes to request an impartial

administrative due-process hearing. See id.S 1415(f)(1). If

the hearing is conducted by a local educational agency, any

party aggrieved by its findings and decision may appeal to

the state educational agency. See id. S 1415(g). If, however,

the hearing is conducted by the state educational agency,

an aggrieved party may bring a civil action in a state court

of competent jurisdiction or in federal district court. See id.

S 1415(i)(2).

In addition to granting other appropriate relief, a court

may, in its discretion, "award reasonable attorneys' fees to

the parents of a child with a disability who is the prevailing

party." Id. S 1415(i)(3)(B). Following a 1997 amendment,

however, "[a]ttorneys' fees may not be awarded relating to

any meeting of the IEP Team unless such meeting is

convened, [inter alia], as a result of an administrative

proceeding or judicial action." Id.S 1415(i)(3)(D)(ii) (emphasis

added). It is this limitation, and its application to a specific

IEP Team meeting, that is at issue in this appeal.

II. Background Facts & Procedure

In December 1996, the Scranton School District

identified Daniel S. as a student in need of special

educational services. An IEP Team consisting of Daniel's

parents and education professionals engaged in a series of

meetings intended to produce an IEP for Daniel. The School

District then presented Daniel's parents with an IEP, which

they rejected. The School District again presented the same

IEP, which Daniel's parents again rejected.

Sometime during the summer of 1997, the advocate

representing Daniel's interests in the IEP process contacted

Mary Anne Clausen, a private attorney specializing in

education law. See App. at 191:15-23. Thereafter, Daniel's

advocate "from time to time asked [Clausen] a few

questions about things" concerning the effort to develop an

acceptable IEP for Daniel. See id.

3

In August, the IEP Team met again, but again failed to

produce a mutually acceptable IEP. The School District

then requested an administrative due-process hearing to

determine the adequacy of the IEP it was offering Daniel. A

hearing was scheduled, and, in the interim, Daniel's

parents decided it would be best to teach him at home until

an appropriate IEP was in place at school.

While awaiting the hearing, Daniel's mother contacted

Attorney Clausen directly concerning truancy proceedings

that the School District had initiated against Daniel. See id.

at 192:8-193:15. Attorney Clausen had further

conversations on the truancy matter with Daniel's mother

and with his advocate in the ensuing weeks. See id. at

194:20-195:15. Ultimately, Attorney Clausen performed a

few minor legal services on Daniel's behalf regarding the

truancy proceedings against him. See id. at 196:2-197:9.

In September, the IEP Team then met again for a third

time, but again failed to produce a mutually acceptable IEP

for Daniel. Shortly thereafter, the School District presented

his parents with a revised IEP that conceded to some, but

not all, of their demands. In response, Daniel's mother sent

the School District a letter explaining why she was

dissatisfied with the latest IEP and setting forth her

remaining demands. See id. at 197:15-22; 203:11-19;

207:16-18.

Daniel's parents asked Attorney Clausen to represent

them in their continuing battle with the School District over

Daniel's IEP. See id. at 197:23-198:1. In the hope that the

parties would be able to resolve the matter without her

assistance, Attorney Clausen refused to represent them

until after they had received a response to their letter. See

id.

In October, the School District sent Daniel's parents yet

another version of the IEP, conceding to some, but again

not all, of the demands expressed in their previous letter.

Thereafter, Attorney Clausen "entered into a retainer

agreement [with Daniel's parents] to negotiate on their

behalf at that point in time and to see if we could get a

settlement of the matter for them." Id. at 198:13-24.

Daniel's parents rejected the School District's latest IEP

4

and, on the same rejection form, checked a box requesting

a due process hearing. See id. at 479.

Attorney Clausen called the School District's attorney

and requested a "settlement conference" to break the

impasse. More specifically, she explained that the efforts to

produce a mutually acceptable IEP for Daniel "had been

ongoing for a long time" and that she would "like to try to

settle it rather than going to due process." Id. at 212:24-

213:4. The School District's attorney agreed, and the

parties met on October 20 and signed an attendance sheet

labeled "Settlement Conference." See id. at 46.

The School District made a number of concessions at the

conference and, in the course of the ensuing few days,

made several more. As a result, the parties produced a

mutually acceptable IEP that Daniel's mother signed. The

request for a due-process hearing was then withdrawn.

Shortly thereafter, Attorney Clausen asked the School

District to pay her fees related to the October 20 settlement

conference and subsequent services rendered on Daniel's

behalf. When the School District refused, Daniel's parents

filed a civil action in the District Court for the Middle

District of Pennsylvania. Following a bench trial, the

District Court entered an order awarding attorneys' fees to

Daniel's parents.

In a memorandum explaining its order, the District Court

found that the October 20 conference was not a settlement

conference at all. In "the Court's view," because everyone

who attended the meeting, with the exception of Attorney

Clausen, was a member of the IEP Team, "regardless of

what the meeting was labeled, it was a meeting of the IEP

Team within the meaning of the Act." Dist. Ct. Mem. of

02/12/1999 at 3. The District Court also concluded that

the School District's request for a due process hearing had

"initiated" an "administrative proceeding." Id. at 5. The

court further concluded that "[g]iven the initiation of that

proceeding, and the impending hearing, it is inescapable

that the meeting of October 20, 1997 . . . was convened as

a result of the administrative proceeding." Id.

The District Court concluded:

5

It seems quite clear . . . that counsel fees may be

awarded in any instance where a party prevails as a

result of an IEP team meeting which is convened as a

result of an administrative proceeding. Such is exactly

what occurred here, and therefore fees will be awarded

to . . . plaintiff 's counsel.

Id. at 6. The School District disagrees that the meeting was

"convened as a result of an administrative hearing," and

appeals from the order awarding Attorney Clausen's fees.

III. Discussion

The sole issue raised in this appeal is whether the 1997

amendment of the Act bars this award of attorneys' fees.

The parties both contend that "[t]his case isfirst and

foremost a matter of statutory construction." Appellee's Br.

at 10; see also Appellant's Br. at 12 ("The Appellant

believes that the language of S 1415(i)(3)(D)(ii) is clear,

unambiguous and therefore no further analysis is

required."). To a degree, they are correct. But resolution of

this issue ultimately does not turn on a question of law.

The operative statutory phrase calls for the Court to

determine if the IEP team meeting was "convened as a

result of an administrative proceeding," thus raising a

question of causation.

In applying the pre-1997-amendment version of S 1415,

we have held that causation can be established on either of

two theories. See Wheeler v. Towanda Area School Dist.,

950 F.2d 128, 132 (3d Cir. 1991) (considering when

litigation is casually connected to the relief obtained by a

prevailing party). In the context of pre-amendmentS 1415,

litigation was held to be causally connected to the relief if

it either produced that relief directly (i.e., through a

favorable judgment), or, under an alternative "catalyst"

theory, if "the pressure of the lawsuit was a material

contributing factor in bringing about extrajudicial relief." Id.

(citations omitted).

In the context of this case, an administrative proceeding

can be causally connected to the prevailing party's relief if

the pressure of the proceeding was a material contributing

factor in bringing about the relief sought and ultimately

6

obtained by the child's parents. Thus, the real question in

this case is one of fact: was the scheduled due process

hearing the catalyst for the October 20 meeting that

ultimately produced a mutually acceptable Program for

Daniel?

The School District takes no issue with the District

Court's conclusion that the October 20 meeting was an IEP

Team meeting, but argues, essentially, that an IEP Team

meeting can never be convened as a result of an

administrative hearing that has not yet occurred. See

Appellant's Br. at 10. That is incorrect. An administrative

hearing need not actually have occurred for it to be the

cause of an IEP Team meeting. The mere threat of a

scheduled hearing alone may induce opposing parties to

agree to meetings in which they would not otherwise have

participated, if only to avoid the cost, burden and

uncertainty of the hearing itself. Cf. Sullivan v.

Pennsylvania Dep't of Labor & Indus., 663 F.2d 443 (3d Cir.

1981) (finding the requisite causal link to recover attorneys'

fees on Title VII claim where EEOC complaint caused union

to take case to arbitration where relief was ultimately

granted).

Despite a series of IEP Team meetings, as well as

exchanges in writing and by telephone, the parties were

unable to produce a mutually acceptable IEP for Daniel. By

September 3, the School District had determined that the

Program it was offering Daniel was appropriate, and that

IEP Team meetings were becoming "off focus" and

"counterproductive." App. at 336:19-23. In short, it, too,

had lost confidence in the IEP Team process, and had

decided that a due process hearing would likely be

necessary to break the impasse. Thereafter, the parties held

one more "regular" IEP Team meeting on September 30.

The October 20 meeting at issue was unlike the previous

meetings in several significant respects. First, by the time

the October 20 meeting was scheduled Daniel's parents had

made their own request for a due process hearing, implying

that they believed the IEP Team process had broken down.

Second, whereas all prior meetings had been scheduled by

the parties themselves following the notice requirements set

forth in the Act, the October 20 meeting was scheduled by

7

the parties' respective attorneys. Third, although the

attorneys did not attend any of the previous meetings, and

Daniel's attorney declined to become directly involved in the

IEP process until it was clear that the IEP Team was

deadlocked and an administrative hearing was imminent,

both attorneys attended the October 20 meeting. See App.

at 46. As noted, the District Court concluded that the

School District's September 3 request for a due process

hearing "initiated" an administrative proceeding. See Dist.

Ct. Mem. of 02/12/1999 at 5.

We reject the parties' invitation to formulate a bright-line

test for determining when an IEP Team meeting results

from an administrative proceeding. Under Appellant's

proffered test, an IEP Team meeting would never result

from an administrative proceeding if it occurs before the

administrative proceeding has actually been convened.

Conversely, Appellees ask us to hold that an IEP Team

meeting results from an administrative proceeding any time

it occurs after the administrative proceeding has been

requested, whether or not the requested proceeding was the

catalyst for the meeting in question. We reject both tests,

and hold that whether a particular IEP Team meeting

results from an administrative proceeding is first a factual

question of causation, opening the District court'sfindings

to our review for clear error. Thereafter, the decision to

award fees remains within the discretion of the court. See

20 U.S.C. S 1415(i)(3)(B), which we review for an abuse in

the exercise of its discretion.

Against this factual backdrop, we see no error in the

District Court's finding the meeting was convened as a

result of the pending administrative hearing, nor in its

determination that the pending due process hearing was

the catalyst for the October 20 IEP Team meeting. Looking

at the facts, we cannot accept the School District's claims

that it was merely being proactive when it filed its

September 3 request for a due process hearing. The

evidence is to the contrary. The record indicates that by the

time the School District requested a due process hearing it

had concluded that the IEP Team process had become

unfocused and counterproductive. Although it subsequently

scheduled one final IEP Team meeting for September 30,

8

that meeting was also unproductive. By the time the parties

scheduled the October 20 meeting, all involved believed the

IEP Team process had reached an impasse and that a due

process hearing was imminent without the successful

intervention by their attorneys. Accordingly, we conclude

that the District Court's finding that the October 20

meeting was convened as a result of the due process

hearing scheduled for November 10 is fully supported by

the evidence. Upon that finding, an award of attorney fees

was well within its discretion.

IV. Conclusions

We hold that the District Court did not err in finding, as

a matter of fact, that the IEP Team meeting at issue in this

case was convened as a result of an administrative

proceeding, nor did it abuse its discretion by awarding fees.

Accordingly, we will affirm the District Court's order.

9

BECKER, Chief Judge, concurring in the judgment:

Under the 1997 amendments to IDEA, on which the

School District relies, "[a]ttorneys' fees may not be awarded

relating to any meeting of the IEP Team unless such

meeting is convened as a result of an administrative

proceeding or judicial action." 20 U.S.C. S 1415(i)(3)(D)(ii).

Consequently, the School District can prevail only if: (1) the

October 20 meeting was one of Daniel's IEP Team; and (2)

the meeting was not convened as a result of an

administrative proceeding or judicial action. The Court

agrees that the October 20 meeting was an IEP Team

Meeting, but affirms the District Court's judgment awarding

fees because it concludes that the meeting took place as a

result of the due process hearing scheduled for November

10.

The linchpin of the Court's holding is its conclusion that

the District Court's "factual" finding "that the pending due

process hearing was the catalyst for the October 20 IEP

Team meeting" was not clearly erroneous. See opinion of the

Court at 8. I disagree. No administrative proceeding ever

took place, and none was even scheduled to occur prior to

November 10--three weeks after the October 20 meeting.

While the October 20 meeting may have occurred as a

result of the School District's decision to initiate the

administrative process and in anticipation of the scheduled

due process hearing, the statute simply does not refer to

IEP Team Meetings "convened as a result of the initiation of

an administrative process" or "convened in anticipation of

an administrative proceeding."

On the other hand, I also believe that--under any

standard of review--the October 20 meeting was not an IEP

Team Meeting. IDEA contains no definition of the phrase

"meeting of the IEP Team." Absent a definition or other

controlling authority, I would hold that parties may clearly

designate a meeting as a settlement conference rather than

an IEP Team Meeting, and I believe that that precept is

satisfied in this case. The October 20 meeting was

scheduled by counsel for the parents as a settlement

conference, and, with the exception of the parents' attorney,

every person at the October 20 meeting signed a sheet

referring to it as a "Settlement Conference." Although

10

lawyers are not designated as being part of an IEP Team,

two attorneys (one for the parents and one for the School

District) attended the October 20 meeting.

The impetus for and subject of the meeting was likewise

closer to that of a settlement conference than of an IEP

Team meeting because the parties were, at that point,

trying to avoid the need for a due process hearing, rather

than simply attempting to arrive at an IEP that was best for

Daniel. In addition, the School District did not give the

parents formal notice of the October 20 meeting--

something that Pennsylvania law explicitly requires it to do

before an IEP Team Meeting. I therefore conclude that the

October 20 meeting was not an IEP Team Meeting within

the meaning of IDEA, and would affirm the judgment on

this ground.

I.

To explain the rationale behind the conclusions I reach,

it is necessary to recapitulate the chronology of events. In

December 1996, the Scranton School District identified

Daniel S. as a "child with a disability" as that term is

defined under IDEA. With the assistance of Daniel's

parents, the School District prepared a comprehensive

evaluation of Daniel's disabilities. When Daniel's IEP Team

began meeting, however, it could not agree on a plan for

him. Without an IEP in place, Daniel was forced to remain

out of school between January and November of 1997.

During those ten months, Daniel's parents and other

members of his IEP Team met or had discussions on

numerous occasions. IEP Team Meetings took place on

April 1, April 29, and August 27, 1997, but the Team was

unable to agree on an IEP because Daniel's parents felt that

none of the proposals adequately accounted for his special

needs. In early September, the School District officially

requested a due process hearing at which an independent

third party would be asked to determine Daniel's fate. In an

effort to avoid this result, the IEP Team met one more time

on September 30, 1997. Daniel's parents rejected the IEP

proposed at the meeting and hired an attorney, Mary Ann

Clausen, to represent them at the due process hearing.

11

With the due process hearing scheduled for November

10, 1997, Clausen contacted the School District and

requested that a meeting be held in an attempt to resolve

matters before the hearing. In scheduling the meeting,

Clausen characterized it as a "settlement conference," and

counsel for the School District did not object to this

characterization. The parties, including most of Daniel's IEP

Team, assembled on October 20, 1997. This was first time

that lawyers for both the School District and Daniel's

parents attended a meeting regarding Daniel. All of the

parties (except Clausen) at the October 20 meeting signed

an attendance sheet labeled with the heading "Settlement

Conference." The parties discussed Daniel's IEP, but came

to no agreement regarding Daniel's educational plan.

The October 20 meeting proved fruitful, for it paved the

way for further informal conversations and exchanges of

information between the parties. Based on these exchanges,

an IEP was agreed upon and signed by Daniel's mother on

October 31, 1997. The IEP that Daniel's mother signed was

more favorable to Daniel than the School District's previous

proposals had been. With the October 31 agreement in

effect, the adversarial proceeding scheduled for November

10 was rendered unnecessary.

II.

Because the District Court concluded that the October 20

meeting was one of Daniel's IEP Team, it was required to

consider whether the meeting was "convened as a result of

an administrative proceeding." 20 U.S.C. S 1415(i)(3)(D)(ii).

The Court reasoned that the October 20 meeting was

"convened as a result of " the School District's decision to

request the due process hearing scheduled for November 10

and in anticipation thereof. Specifically, Court stated that:

[g]iven the initiation of that proceeding, and the

impending hearing [on November 10], it is inescapable

that the meeting of October 20, 1997 which resulted in

an acceptable plan on October 31, 1997, was convened

as a result of the administrative proceeding. There

appears to be no other requirement under the plain

meaning and plain language of the statute.

12

The Court agrees with the District Court, characterizing the

inquiry as "a factual question of causation" reviewable for

clear error. Opinion of the court at 8. I disagree.

The key question is whether an IEP Team Meeting can be

convened as a result of a due process hearing that has not

yet taken place. This is a question of law because it

involves statutory interpretation. And because it is a

question of law, the appropriate standard of review is de

novo.1 See United States v. Zwick, 199 F.3d 672, 678 (3d

Cir. 1999) ("We exercise plenary review over questions of

statutory interpretation."). Neither the Supreme Court nor

any court of appeals has previously considered this issue.

Absent binding precedent, we must follow the Supreme

Court's repeated admonition that where a statute's text is

clear, the task of interpretation begins and ends there. See

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999).

The relevant portion of the statutory text refers to IEP

Team Meetings "convened as a result of an administrative

proceeding." There is no dispute that the due process

hearing scheduled to take place on November 10 would

have qualified as an "administrative proceeding" within the

meaning of IDEA. The question, therefore, is whether the

October 20 meeting was "convened as a result of " the due

process hearing scheduled for November 10. In the absence

of a statutory definition or some other compelling reason,

we interpret the words of a statute in accord with their

ordinary meaning. Result means "a consequence, effect,

issue, or conclusion." Webster's Third New International

Dictionary 1937 (1966). An event (such as an IEP Team

Meeting) cannot be a "consequence" of another event (such

as a due process hearing) that has not yet occurred nor can

an "effect" precede its purported cause.

This common sense interpretation is supported by the

ways in which the phrase "as a result of " is used in other

sections of the United States Code. Its only other use in

_________________________________________________________________

1. I agree with the Court that if, as a matter of law, an IEP Team Meeting

can occur "as a result of " a due process hearing that has not yet taken

place, the question whether a particular IEP Team Meeting did so occur

would be a question of fact that would be reviewable for clear error. See

opinion of the Court at 8.

13

IDEA provides that "[a]s a result of more than 20 years of

Federal support for research . . . , there is an important

knowledge base for improving results for children with

disabilities." 20 U.S.C. S 1471(a)(2)(A). Other provisions of

the United States Code use "as a result of " in a similar

manner--i.e., one that makes clear that an event may not

be the result of another event that has yet to occur.2

I can think of but three ways, none of them satisfactory,

to blur this clear statutory language. The first would be to

read the statute as saying "unless such meeting is

convened as a result of the initiation of or request for an

administrative proceeding." The second would be to read

the statute as saying "unless such a meeting is convened in

anticipation of an administrative proceeding." The problem,

of course, is that these alternate formulations are simply

not in the statute and their insertion would substantively

alter its meaning. A final possibility would be to conclude

that the commencement of the administrative proceedings

took place when the School District requested the due

process hearing. But this argument ignores the fact that

the statute does not say "administrative process," it says

"administrative proceeding," and the only administrative

proceeding that even potentially qualifies in this case never

occurred.

The only judicial decisions I have been able to locate

dealing with this issue support my reading of the statute.

The first, M.V. v. Gordon, No. 98 C 8408, 1999 WL 417394

(N.D. Ill., June 15, 1999), involved a 13-year-old boy who

had been diagnosed with Attention Deficit Hyperactivity

Disorder. M.V. was suspended from school after he engaged

in what seems to have been highly inappropriate behavior.

His parents submitted a request for a due process hearing.

_________________________________________________________________

2. See, e.g., 5 U.S.C. S 1103(b)(3) (relaxing publishing requirements for

new federal regulations that are "temporary in nature and [are]

necessary to be implemented expeditiously as a result of an emergency");

8 U.S.C. S 1440-1(b) (allowing for posthumous grant of citizenship to

certain noncitizens who served in the United States armed forces and

"died as a result of injury or disease incurred in or aggravated by that

service"); 10 U.S.C. S 829(a) (stating that members of a court martial may

not be "absent or excused after the court has been assembled for the

trial of the accused unless excused as a result of a challenge").

14

An IEP Team Meeting was convened and a settlement was

reached that rendered the due process hearing

unnecessary. Id. at *1. The parents thenfiled an action to

recover attorneys fees "relating [to] IEP meetings." See id. at

*2. The court granted the school district's motion to

dismiss, finding the language of the 1997 amendments

"clear and unambiguous." Id. Responding to the parents'

claim "that it was their request for a due process hearing

. . . that was the `catalyst for the relief obtained,' " the court

stated:

Plaintiffs have not demonstrated how the hearing

request alone entitles them to fees. Although Plaintiff[s]

cite cases which granted recovery of fees in similar

situations [citing the parents' brief], those cases pre-

date the 1997 IDEA amendments which now clearly

limit recovery of fees Plaintiffs seek unless they are the

result of "an administrative proceeding or judicial

action." Plaintiffs have not established that the[School]

District convened the IEP meeting as a result of an

"administrative proceeding." On the contrary, Plaintiffs'

own allegations reveal that the [School] District took a

proactive role at an early opportunity thereby removing

the need for administrative proceedings.

Id. at *3. Accordingly, the court denied the request for

attorneys fees. See id.

The case most heavily relied upon by Daniel's parents,

F.R. v. Board of Education, 67 F. Supp. 2d 142 (E.D.N.Y.

1999), provides little support for their claim that attorneys

fees may be awarded in this case. Although the Court in

F.R. awarded fees for work done prior to a due process

hearing, the fees requested were not intended to

compensate an attorney for attending an IEP Team Meeting.

The court noted that:

[P]laintiffs do not seek fees in connection with their

attorney's presence at the CSE meetings held to

develop and modify [the child's] IEP. . . . Instead . . .

[the] fees sought to be reimbursed relate to attorney

work performed in connection with investigation of the

case, discussions with opposing counsel, client

meetings and preparations of requests for impartial

hearings.

15

Id. at 148 (emphasis added). In contrast, as the facts are

interpreted by the Court, this case involves a request for

fees for attending an IEP Team Meeting. F.R. provides no

support that such fees are recoverable after the 1997

amendments.3

III.

The rule announced by the Court today will undermine

the goal of the 1997 amendments, which was to make IDEA

less costly for local school districts. The (admittedly limited)

means chosen to accomplish this goal involved restricting

the ability of parents to recover attorneys fees associated

with attendance at IEP Team Meetings. The causation test

adopted by the Court will allow one party (parents, or, more

accurately, their lawyers) to undermine these limits

unilaterally by requesting a due process hearing early on so

that they can claim that any subsequent IEP Team

Meetings occurred as a result of that request. Even if courts

often reject such claims on the grounds that a causal

connection between the request for a hearing and the

resolution of the dispute is lacking, the litigation over fees

will itself be costly and time-consuming for school districts.

On the other hand, a rule that attorneys fees are never

recoverable for any meeting that occurs prior to an

administrative proceeding would likewise undermine the

purpose of the 1997 amendments. The costs of paying for

parents' attorneys to attend a successful settlement

conference will almost always be lower than the costs

associated with their attendance at a due process hearing.

But if parents' lawyers could not recover fees for attending

settlement conferences but could recover them for

attending due process hearings, then they would lack an

incentive to try to settle disputes prior to a hearing.

_________________________________________________________________

3. The only other cases cited by the parties are unhelpful in resolving

this issue. In Lucht v. Molalla River School District, 57 F. Supp. 2d

1060,

1062 (D. Ore. 1999), the IEP Team Meeting for which the parents

demanded fees occurred after a due process hearing had taken place.

And Christopher P. v. Upper Merion Area School District, No. CIV A. 99-

402 (E.D. Pa., Jan. 19, 2000), does not discuss the impact of the 1997

amendments.

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Accordingly, an ideal system to hold down overall costs

must take account of (and encourage) bona fide settlement

conferences.

I believe that the best way to hold down overall costs is

to allow parties to designate meetings as settlement

conferences rather than IEP Team Meetings. The special

education world is largely made up of sophisticated, repeat-

player counsel for both parents and school districts. A clear

rule that attorneys fees are not recoverable for pre-hearing

meetings unless the parties agree that the meeting is a

settlement conference rather than an IEP Team Meeting

would allow the parties to agree ex ante whether a given

meeting may later be subject to a claim for fees. School

districts will not agree to a settlement conference, however,

unless and until they conclude that further resort to the

non-adversarial IEP process is unlikely to yield agreement.

Accordingly, settlement conferences will be held only when

the choice has truly become one between settlement and a

formal hearing, and, under such circumstances, IDEA's

policy of holding down costs is served by allowing recovery

of fees.

IV.

There is neither statutory language nor substantial case

law defining what constitutes an IEP Team Meeting. 4 But

_________________________________________________________________

4. The phrase "meeting of the IEP Team" is contained only in the 1997

amendments. 20 U.S.C. S 1415(i)(3)(D)(ii). IDEA defines the "IEP Team"

as "a group of individuals composed of " the child's parents, certain

teachers, other persons trained in working with children with

disabilities, other individuals familiar with the child and the local

curricular offerings, and, whenever appropriate, the child him- or

herself.

Id. S 1414(d)(1)(B). The IEP Team is charged with developing and revising

a child's IEP and must consider certain factors. Individual members of

the IEP Team are given certain responsibilities. See id. S 1414(d)(3-5).

Other provisions of the statute instruct the IEP Team to consider

particular data or attach consequences to determinations made by the

IEP Team. See S 1414(c)(1); id. S (2); id. S (4); id. S (d)(1)(A)(v)(I);

id.

S (vii)(II); id. S 1415(k)(1)(B)(ii); id. S (3)(A); id. S (4)(B-C). One

Section

attaches specified consequences to a failure of the child's parents to

inform the IEP Team that they are rejecting a proposed placement for

their child. See id. S 1412(a)(10)(C)(iii)(I)(aa). Nowhere, however, does

the

statute provide real guidance for determining whether a meeting is one

of the IEP Team.

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absent controlling authority to guide us, I would hold, for

the reasons stated above, that parties may designate a

meeting as a settlement conference rather than an IEP

Team Meeting. Because I believe that under any standard

of review the parties did so in this case, I conclude that the

parents' request for attorneys fees is not barred by the

1997 amendments, and I would affirm the District Court's

order granting fees on this alternate ground.

The District Court held that the October 20 meeting was

an IEP Team Meeting. See A28 ("It is therefore the Court's

view that regardless of what the meeting was labeled, it was

a meeting of the IEP team within the meaning of the Act.").

The Court agrees.5 See opinion of the Court at 5, 7. I do not.

The first question, which the Court does not even

address, is the appropriate standard for reviewing the

District Court's decision that the October 20 meeting was

one of Daniel's IEP Team. Some of the District Court's

statements, i.e., those about the identities of the people at

the meeting, the fact that they signed a sheet titled

"Settlement Conference," and the matters discussed at the

meeting, are findings of fact that should be reviewed for

clear error. On the other hand, the meaning of the phrase

"meeting of the IEP Team" is a legal question that should be

reviewed de novo. I need not determine the appropriate

standard for reviewing the District Court's application of

_________________________________________________________________

5. Curiously, the Court appears to suggest that this issue is not before

us because "[t]he School District takes no issue with the District Court's

conclusion that the October 20th meeting was an IEP Team Meeting."

Opinion of the Court at 7. While this observation is true--after all, the

School District cannot prevail on this appeal unless the October 20

meeting was one of Daniel's IEP Team--it is also irrelevant. The School

District has appealed the District Court's judgment awarding attorneys

fees to the parents. Before this Court, the parents argue, inter alia,

that

we should affirm the District Court's judgment because the October 20

meeting "was not an IEP team meeting." Because a party that ultimately

prevailed before a district court may urge affirmance on different

grounds, this issue is properly before us. See Alvin v. Suzuki, No. 99-

3245, 2000 WL 1281478, at *1 (3d. Cir., Sept. 12, 2000) (affirming a

district court's decision to grant summary judgment against a plaintiff

alleging a procedural due process violation on different grounds from

those articulated by the district court).

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the law to the facts, however, because I conclude that

under any standard of review the District Court erred in

holding that the October 20 meeting was one of Daniel's

IEP Team.

I will begin with the objective evidence. Although IDEA

provides no definition for the phrase "meeting of the IEP

Team," there are, as I see it, three characteristics of such

meetings that inform the inquiry, and each of these factors

supports the conclusion that the October 20 meeting was a

settlement conference rather than an IEP Team Meeting.

The first characteristic of an IEP Team Meeting is the

identities of those in attendance. Unlike every previous

meeting of Daniel's IEP Team (a series of four meetings

spanning six months), counsel for both parties attended the

October 20 meeting. Lawyers are not mentioned in the

section of IDEA listing members of an IEP Team. See 20

U.S.C. SS 1414(d)(1)(b)(i)-(vii). In contrast, lawyers are

mentioned in the section of IDEA providing for the

procedural rights that parents must be accorded at due

process hearings. See id. S 1415(h).

Further, as the admittedly sparse legislative history to

the 1997 amendments demonstrates, IEP Team Meetings

are meant to be fora at which parents and school

administrators--outside the presence of counsel and the

threat of litigation--can resolve their differences and arrive

at an IEP best suited to the disabled child's interests. See

H.R. Rep. No. 105-95, at 105 (1997), reprinted in 1997

U.S.C.C.A.N. 78, 103 ("The Committee believes that the IEP

process should be devoted to determining the needs of the

child and planning for the child's education with parents

and school personnel. To that end, the bill specifically

excludes the payment of attorneys' fees for attorney

participation in IEP meetings, unless such meetings are

convened as a result of an administrative proceeding or

judicial action."). Thus, in terms of participants, the

October 20 meeting was more like a settlement conference

arranged in anticipation of a due process hearing than a

typical IEP Team Meeting.

In its conclusory disagreement, the Court appears to

adopt the District Court's reasoning that because"the

parties in attendance, with the exception of Ms. Clausen,

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were members of the IEP team," the meeting was inherently

"a meeting of the IEP team within the meaning of the Act."

This seems wrong to me for two reasons. First, it glosses

over the fact that attorneys for both parties were present6

(which, for the reasons explained above, is highly

significant). Second, it assumes that any meeting including

the members of a child's IEP Team is a "meeting of the IEP

Team" within the meaning of IDEA. But individuals who

make up the membership of a group may meet without

thereby convening the group. The panel of this Court, for

example, could surely go out for a social lunch without

constituting the United States Court of Appeals for the

Third Circuit. While I recognize that the purpose of the

October 20 meeting was to agree on a satisfactory IEP for

Daniel (which is, at least, related to the normal purpose of

an IEP Team meeting), this does nothing to undercut the

argument that the mere presence of members of the IEP

Team cannot be decisive.

A second characteristic of an IEP Team Meeting is its

subject matter. As the District Court noted in its opinion,

the parties did meet to discuss Daniel's IEP. In fact, there

was pressure to agree upon the IEP because neither party

wanted to go through a due process hearing and risk losing

control over the outcome while incurring the costs of

presentation before an administrative tribunal. Thus, while

the basic subject matter of the October 20 meeting was

consistent with IEP Team Meetings in general, the

chemistry of the meeting was transformed by the presence

of negotiating counsel. In short, the meeting was more like

the settlement conference it had been titled by the parties

than like an IEP Team Meeting.

A final characteristic of IEP Team Meetings--at least in

Pennsylvania, and not present in this case--is the type of

notice school districts must provide parents before

scheduling a meeting. Pennsylvania law requires that

_________________________________________________________________

6. The District Court's statement that all those in attendance except

Clausen (the parents' lawyer) were members of Daniel's IEP Team

appears to be clearly erroneous. The statement of undisputed facts

submitted by the parties states that counsel for the School District, who

was not a member of Daniel's IEP Team, was also present.

20

school districts formally notify parents when IEP Team

Meetings will be held. See 22 Pa. Code 342.32(c)(2). This

notice must inform the parents of the IEP Team Meeting's

purpose as well as who will be in attendance. See id. The

undisputed record reflects that the School District did not

provide such notice to Daniel's parents before the October

20 meeting.

In addition, other aspects of the parties' conduct support

the view that the October 20 meeting was a settlement

conference rather than an IEP Team Meeting. The meeting

was arranged when Clausen (counsel for the parents)

contacted counsel for the School District. Clausen's letter

suggesting a meeting referred to it as a "settlement

conference," and the response by the counsel for the School

District never objected to this characterization.

Furthermore, each person in attendance (including counsel

for the School District but excluding Clausen) signed a

sheet of paper titled "Settlement Conference." Whether or

not these two references standing alone would establish as

a matter of law that what took place on October 20 was not

an IEP Team Meeting, I can reach no other conclusion

when the evidence is considered in its entirety. I therefore

would affirm the District Court's judgment on this alternate

ground.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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