John T. Ex Rel. Paul T. v. Delaware County Intermediate Unit

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

1-30-2003

John T. v. DE Cty Intermediate

Precedential or Non-Precedential: Precedential

Docket 01-3575

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PRECEDENTIAL

Filed January 30, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3575/4206

JOHN T., A MINOR BY HIS PARENTS AND NEXT

FRIENDS, PAUL T. AND JOAN T.; PAUL T.; JOAN T.,

INDIVIDUALLY, AND ON THEIR OWN BEHALF, ALL OF

v.

THE DELAWARE COUNTY INTERMEDIATE UNIT,

Defendant/Third-Party Plaintiff

v.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT

OF EDUCATION;

Third-Party Defendant

Delaware County Intermediate Unit,

Appellant No. 01-3575

JOHN T., A MINOR BY HIS PARENTS AND NEXT

FRIENDS, PAUL T. AND JOAN T.; PAUL T.; JOAN T.,

INDIVIDUALLY, AND ON THEIR OWN BEHALF, ALL OF

v.

THE DELAWARE COUNTY INTERMEDIATE UNIT,

Defendant/Third-Party Plaintiff

v.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT

OF EDUCATION;

Third-Party Defendant

John T., Paul T. and Joan T.

Appellants No. 01-4206

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 98-cv-05781)

District Judge: Honorable Norma L. Shapiro

Argued on June 13, 2002

Before: ROTH, RENDELL* and ROSENN,

Circuit Judges

(Opinion filed: January 30, 2003)

Dennis C. McAndrews, Esquire

(Argued)

Monahan & McAndrews

Suite 108, 125 Strafford Avenue

Wayne, PA 19087

Howard G. Hopkirk

Office of Attorney General of

Pennsylvania

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellants/Cross

Appellees

_________________________________________________________________

* The Honorable Marjorie O. Rendell participated in the oral argument

and conference and joined in the decision in this case on June 13, 2002,

but became recused from this matter prior to filing of the opinion. This

opinion and judgment are being entered insofar as the remaining judges

are unanimous in this decision.

2

Michael I. Levin, Esquire

(Argued)

Allison C. Snyder, Esquire

Levin Legal Group, P.C.

1402 Masons Mill Business Park

1800 Byberry Road

Huntingdon Valley, PA 19006

Counsel for Appellees/Cross

Appellants

Caryl Andrea Oberman, Esquire

Robert T. Lear, Esquire (Argued)

Grove Summit Office Park

607A North Easton Road

Willow Grove, PA 19090

Counsel for Amici Curiae

OPINION OF THE COURT

ROTH, Circuit Judge:

We review two Orders entered by the District Court for

the Eastern District of Pennsylvania in connection with a

claim brought under the Individuals with Disabilities

Education Act, 20 U.S.C. SS 1400 et seq. (2002) (IDEA). For

the reasons set forth below, we will affirm both Orders.

First, the Delaware County Intermediate Unit (DCIU), the

defendant before the District Court, asks us to reverse a

Contempt Order requiring it to pay plaintiffs John T. and

his parents Paul T. and Joan T. (hereinafter "John T.")

$1,100 in compensation for the costs of its failure to

comply with a Preliminary Injunction. The DCIU raises

various objections regarding the nature of the contempt

proceeding, the requirements of the Preliminary Injunction

and the process to which the DCIU was entitled. We

conclude that none of these objections has merit.

Second, in a separate appeal, John T. asks us to reverse

an Order that denied him attorney’s fees. Before reaching

settlement and voluntarily dismissing his claim, John T.

had obtained preliminary injunctive relief and a civil

3

contempt order to enforce that relief. We must determine

whether John T. then qualifies as a "prevailing party" under

the IDEA fee-shifting provision. We hold that he does not.

I. Facts and Procedural History

John T. is a twelve year old mentally retarded child with

Downs Syndrome. He lives with his family in the Haverford

Township School District in Delaware County,

Pennsylvania. From September 1993 until June 2000, John

T. attended the St. Denis Elementary School, a non-profit,

private school in Delaware County. Although John T.’s

parents paid his St. Denis tuition, John T. received some

publicly-funded special education programs and related

services at St. Denis from the DCIU.

The DCIU is charged by Pennsylvania law with the

provision of special education services to children with

disabilities attending private schools within Delaware

County. See 24 P.S. SS 9-972.1 & 13-1372(4) (2002)

(charging the Intermediate Units with the provision of

proper education, training and "auxiliary services" for

exceptional children not enrolled in public schools)

(collectively, the Pennsylvania Statutes).

During the summer of 1998, a dispute arose regarding

the programs and services that DCIU was obligated to

provide John T. for the 1998-99 school year. While the

DCIU was willing to provide services to John T. at a public

school, it refused to continue providing them at St. Denis.

John T. and the DCIU were unable to resolve their dispute

before the school year began. During the early months of

that school year, the DCIU provided no programs or

services to John T. and refused to provide the state due

process hearing procedures outlined in the IDEA. During

that time, John T.’s parents provided necessary programs

and services to John T. at their own expense.

On November 2, 1998, John T. filed a Complaint in the

United States District Court for the Eastern District of

Pennsylvania. Proceeding under the IDEA, John T. sought

inter alia (1) compensation for the cost of providing

programs and services during the first months of the 1998-

99 school year, (2) provision of needed programs and

4

services for John T. at St. Denis during the remainder of

the year, and (3) a due process hearing and other

procedural safeguards provided by the IDEA.

After hearing testimony and argument, the District Court

issued a Preliminary Injunction and Memorandum Opinion

on May 8, 2000. See John T. v. Delaware County

Intermediate Unit, 2000 U.S. Dist. LEXIS 6169 (E.D. Pa.

May 8, 2000) (John T. I). The Preliminary Injunction ordered

DCIU to "provide John T. with speech therapy, occupational

therapy, a teacher’s aide,1 and an itinerant teacher,2 for

secular subjects only, at levels reasonably calculated to

afford meaningful educational progress in his current school

program at St. Denis." Id. at *31 (emphasis added).3

_________________________________________________________________

1. "A teacher’s aide is a one-on-one assistant working directly with the

[disabled] child, full time, to help the child perform in a mainstream

classroom. A teacher’s aide minimizes the burden on the classroom

teacher of caring for the special needs of a disabled child; for example,

a teacher’s aide takes the disabled child out of the classroom for breaks

and keeps the disabled child’s classroom materials in order." John T. I,

2000 U.S. Dist. LEXIS 6169 at n.3.

2. "An itinerant teacher, by consulting with a child’s classroom teacher,

aids the classroom teacher in modifying the regular education

curriculum to teach the [disabled] child." John T. I, 2000 U.S. Dist.

LEXIS 6169 at n.2.

3. The DCIU questions the District Court’s interpretation of the IDEA

with respect to this requirement. However, the DCIU waived the issue

when it withdrew its direct appeal of the Preliminary Injunction.

Accordingly, we will not resolve the issue here. A brief summary of the

District Court’s analysis is helpful nevertheless to understand the

context of the District Court’s rulings.

The IDEA, itself, does not mandate that local educational agencies like

the DCIU provide special education and related services to disabled

children who voluntarily attend private schools. See 20 U.S.C.

S 1412(a)(10)(C) (2002). However, in analyzing John T.’s likelihood of

success on the merits, the District Court concluded that the obligations

imposed upon the DCIU by the Pennsylvania Statutes are incorporated

into the IDEA. See John T. I, 2000 U.S. Dist. LEXIS 6169 at *14-*21. The

District Court based this conclusion on a provision that states "[t]he

term ‘free appropriate public education’ means special education and

related services that . . . meet the standards of the State educational

agency [(hereinafter SEA)]." 20 U.S.C.S 1401(8)(B). Because the IDEA

5

The District Court explained that the crux of the issue

between the parties was not the extent of the services that

the DCIU was obligated to provide to John T., but whether

the DCIU was obligated to provide services to John T. at St.

Denis. See id. at *7. The court also set forth several findings

of fact that supported its decision to keep John T. at St.

Denis. Specifically, the court noted that previous attempts

to move John T. to a public school had failed and that John

T. benefitted from attending school at St. Denis because his

two non-disabled siblings were students there. Ultimately,

the District Court concluded that John T. "can only be

educated effectively at St. Denis; he cannot receive an

appropriate education at [the public elementary school]." Id.

at *5.

On May 25, 2000, the DCIU appealed the Preliminary

Injunction and filed a motion to stay the injunction with

the District Court. The parties apparently agree that the

DCIU took no action to comply with the Preliminary

Injunction between May 8 and June 19, 2000. On June 19,

the District Court entered a second Order denying the

DCIU’s motion to stay and compelling the DCIU to"comply

with the preliminary injunction of May 8, 2000

FORTHWITH under penalty of sanctions for contempt of

court." The DCIU withdrew its appeal of the Preliminary

Injunction on November 27, 2000.

_________________________________________________________________

requires states, under certain circumstances, to provide disabled

children with a "free appropriate public education," the District Court

reasoned that the IDEA effectively incorporates any higher, SEA

standards into this obligation. (Implicitly, the District Court also

concluded that the Pennsylvania Statutes created such higher, SEA

standards.)

Indeed, this Court, along with many other courts, has interpreted

S 1401(8)(B) to incorporate heightened SEA requirements that are

consistent with federal law. See, e.g., Michael C. ex rel. Stephen C. v.

Radnor Twp. Sch. Dist., 202 F.3d 642, 652-53 (3d Cir. 2000) (noting that

a more stringent state pendency requirement would be incorporated into

the IDEA, but concluding that the SEA regulation at issue was not more

stringent than the IDEA). See also Geis v. Board of Educ., 774 F.2d 575,

581 (3d Cir. 1985) (holding that an identical provision in the IDEA’s

predecessor statute -- the Education of the Handicapped Act (EHA) --

incorporated heightened SEA standards).

6

Over the remainder of the summer and the beginning

months of the 2000-01 school year, the DCIU met with

John T. and his parents and worked to develop an

appropriate Individualized Education Program (IEP). During

this process, the DCIU concluded that John T. needed a

"life skills class" for 50% of his school day and that such a

class could not be provided at St. Denis. For that reason,

the DCIU issued a Notice of Recommended Assignment

(NORA), proposing to move John T. to a public school

within the Haverford Township School District.

John T.’s parents refused to approve the NORA. They

argued that the NORA and IEP conflicted with the

Preliminary Injunction’s mandate that necessary programs

and services be provided at St. Denis. On October 23, 2000,

the DCIU filed a motion with the District Court to either

vacate or modify the Preliminary Injunction in order to

allow the DCIU to provide necessary programs and services

at a public school.

The parties dispute the extent to which the DCIU

provided -- or even could have provided -- an itinerant

teacher and a teacher’s aide for John T. at St. Denis during

September 2000. John T. argues that no such services were

provided to him by the DCIU during that month and that

his parents located teacher’s aides at their own expense.

The DCIU contends that it did provide some itinerant

teacher services during September 2000 but that it had

difficulty locating teacher’s aides during that month

because of a shortage of job applicants.

Dissatisfied with the proposed IEP and NORA, John T.

sought and obtained a state administrative due process

hearing. Pennsylvania Special Education Hearing Officer

Linda Stengle presided over the hearing, which continued

off and on from November 6, 2000, until January 4, 2001.

On January 19, 2001, Hearing Officer Stengle released an

order reaffirming the importance of John T.’s continued

attendance at St. Denis and ordering the DCIU to modify

John T.’s IEP accordingly. The DCIU appealed Hearing

Officer Stengle’s order to the Pennsylvania Special

Education Due Process Appeals Review Panel, which

reversed Hearing Officer Stengle’s order on March 15, 2001.

7

Before the Review Panel had ruled, however, the District

Court ordered the DCIU to Show Cause why it should not

be held in contempt for failing to comply with the

Preliminary Injunction. On September 4, 2001, after

conducting a hearing, the District Court entered an order

finding the DCIU in civil contempt of the Preliminary

Injunction for failing to provide an itinerant teacher or

teacher’s aide during the month of September 2000. The

Contempt Order required the DCIU to pay John T. $1,100

to compensate him for providing services during September

2000 at his own expense. On September 18, 2001, the

DCIU appealed the Contempt Order.

Before the 2001-02 school year commenced, John T. and

the DCIU were able to develop a mutually agreeable IEP

pursuant to which John T. matriculated at a public school

in the Haverford Township School District. Having thereby

achieved the primary objective of his litigation before the

District Court, i.e., obtaining a satisfactory IEP, John T.

moved for voluntary dismissal of his Complaint pursuant to

Federal Rule of Civil Procedure 41(a). John T. also moved

for attorney’s fees of $136,172.79, arguing that he was a

"prevailing party" under the fee-shifting provision of the

IDEA. See 20 U.S.C. S 1415(i)(3)(B).

By Memorandum and Order dated November 7, 2001, the

District Court granted John T.’s motion for voluntary

dismissal but denied his request for attorney’s fees. See

John T. v. Delaware County Intermediate Unit, 2001 U.S.

Dist. LEXIS 18254 (E.D. Pa. Nov. 7, 2001) (John T. II). John

T. timely appealed the District Court’s refusal to award

attorney’s fees.

II. Jurisdiction and Standards of Review

The District Court had jurisdiction over the instant case

pursuant to 20 U.S.C. S 1415(i)(3)(A) (conferring jurisdiction

over IDEA actions specifically) and 28 U.S.C. S 1331 (federal

question jurisdiction). We have jurisdiction over this appeal

pursuant to 28 U.S.C. S 1291.

"The imposition of contempt is reviewed under an abuse

of discretion standard and will only be disturbed if there is

an error of law or a clearly erroneous finding of fact.

8

[citation omitted] We determine on a plenary basis whether

the district court committed an error of law." Harris v. City

of Philadelphia, 47 F.3d 1342, 1349 (3d Cir. 1995).

We typically review a decision to award or refuse

attorney’s fees under the IDEA’s fee-shifting provision for

an abuse of discretion. See Holmes ex rel. Holmes v.

Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000).

However, where the legal standard applied by the district

court is in question - as it is here - our review is plenary.

See id.

III. Discussion

A. Contempt Order

The DCIU makes several challenges to the District

Court’s Contempt Order. First, the DCIU contends that,

because it either complied with the Preliminary Injunction

or at least made a good faith effort to comply, the Contempt

Order was unwarranted. Second, the DCIU argues that the

Preliminary Injunction was so vague and ambiguous that

neither the DCIU nor the District Court could determine

whether, as a matter of fact, the DCIU had complied with

it. Third, the DCIU argues that the Contempt Order was

criminal, not civil, so that the District Court erred by

applying the wrong burden of proof in the contempt

proceeding. Finally, the DCIU challenges the sufficiency of

the notice for the contempt hearing. For the reasons stated

below, we reject all of the DCIU’s contentions and affirm the

Contempt Order.

1. The District Court did not Err in Concluding that

the DCIU Failed to Comply with the Preliminary

Injunction.

"To prove civil contempt the court must find that (1) a

valid court order existed, (2) the defendant had knowledge

of the order, and (3) the defendant disobeyed the order."

Harris, 47 F.3d at 1326. The DCIU appeals the District

Court’s findings with respect to the third element, that the

DCIU disobeyed the Preliminary Injunction. Because the

District Court committed no clear error in making this

finding of fact, we will affirm the Contempt Order.

9

The Harris elements must be proven by "clear and

convincing" evidence, and ambiguities must be resolved in

favor of the party charged with contempt. See Robin Woods,

Inc. v. Woods, 28 F.3d 396, 399 (3d Cir. 1994); Harris, 47

F.3d at 1326. Notwithstanding this high evidentiary

standard, the District Court’s finding was sufficiently

supported. For example, the District Court credited the

testimony of John T.’s mother that the DCIU failed to

provide a teacher’s aide at all during September 2000.

Moreover, Dr. Nancy Wybranski, the DCIU’s own Assistant

Director of the Special Programs Division, admitted that

there were some days during September 2000 on which the

DCIU did not provide a teacher’s aide for John T.

The DCIU’s related argument that the Contempt Order

should be reversed because the DCIU made good faith

efforts to comply with the Preliminary Injunction is also

without merit. "Willfulness is not a necessary element of

civil contempt," and, accordingly, "evidence .. . regarding

. . . good faith does not bar the conclusion . . . that [the

defendant] acted in contempt." Harley-Davidson, Inc. v.

Morris, 19 F.3d 142, 148-49 (3d Cir. 1994).

2. The Preliminary Injunction is neither Vague nor

Ambiguous.

The DCIU next argues that the Preliminary Injunction

was vague and ambiguous in its instruction to "provide

John T. with speech therapy, occupational therapy, a

teacher’s aide, and an itinerant teacher, for secular

subjects only, at levels reasonably calculated to afford

meaningful educational progress in his current school

program at St. Denis." John T. I, 2000 U.S. Dist. LEXIS

6169 at *31 (emphasis added). The DCIU argues that this

vagueness and ambiguity made compliance so difficult to

assess that the District Court committed legal error by

entering the Contempt Order. See, e.g., Ideal Toy Corp. v.

Plawner Toy Mfg. Corp., 685 F.2d 78, 84 (3d Cir. 1982)

(" "[T]he person enjoined must . . .‘receive fair and precisely

drawn notice of what the injunction actually prohibits.’ ")

(quoting Granny Goose Foods, Inc. v. Brotherhood of

Teamsters, 415 U.S. 423, 444 (1974)).

The DCIU’s argument is significantly undercut, however,

by the fact that "levels reasonably calculated to afford

10

meaningful educational progress" is essentially the same

standard by which any IEP is evaluated under the IDEA.

See Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238,

247 (3d Cir. 1999) (citing Board of Education v. Rowley, 458

U.S. 176, 192 (1982)). In other words, the DCIU’s

vagueness argument fundamentally attacks the courts’

interpretations of the IDEA. Because the DCIU regularly

develops and implements IDEA-compliant IEPs and the

DCIU is, we assume, aware that any one of these IEPs may

be subject to court review, we do not credit the DCIU’s

claim that it is confused by this description of the standard

required for John T.

Reading the language of the Preliminary Injunction in

light of relevant IDEA standards, the DCIU did have

adequate notice of what the Preliminary Injunction

required. See McComb v. Jacksonville Paper Co. , 336 U.S.

187, 191-92 (1949) (holding that an injunction not to

violate a statute is not too vague to serve as basis for

contempt order and enjoined party could have sought

clarification of injunction). Although the terms of the

Preliminary Injunction may be vague or ambiguous when

considered in a vacuum, they are given content by the vast

amount of administrative and judicial interpretation to

which they are subject. See Geis v. Board of Educ., 774

F.2d 575, 582 (3d Cir. 1985).

3. The Contempt Order is Civil in Nature.

The DCIU also argues that the District Court erred by

failing to provide it with procedural safeguards, including

the "reasonable doubt standard of proof " applicable in

criminal contempt proceedings. This argument assumes

that the contempt proceedings against the DCIU were

criminal in nature, notwithstanding the District Court’s

characterization of the proceedings as civil.

In advancing this argument, the DCIU relies on United

States v. Pozsgai, 999 F.2d 719, 735 (3d Cir. 1993), for the

proposition that "[t]he purpose and nature of the sanction,

rather than the label attached to it, determine whether [a

contempt order] is civil or criminal." Id. The Pozsgai court

held that a contempt order entered by a district court as a

"civil" order was, in actuality, a "criminal" order which

11

could not be entered without applicable procedural

safeguards. Essential to the Pozsgai court’s determination,

however, was its conclusion that the imposed sanctions

bore two criminal characteristics. First, they were

retroactive insofar as they sought to penalize previous

violations. Second, they were punitive -- as opposed to

remedial -- because they sought to vindicate the court’s

authority rather than to compensate an aggrieved party.

Pozsgai, 999 F.2d at 735. Because the Pozsgai sanctions

had these characteristics, the court determined that the

contempt could not be purged.

The sanction imposed by the Contempt Order -- payment

to John T. of $1,100 -- does not share the "criminal"

qualities identified in Pozsgai. While the sanction is

retroactive, it is not punitive in nature. The sanction was

intended to compensate John T. for the costs associated

with the DCIU’s failure to comply with the Preliminary

Injunction, i.e., the costs of providing a teacher’s aide for

one month.

If civil contempt sanctions are not designed to punish,

they may be retroactive. District courts hearing civil

contempt proceedings are afforded broad discretion to

fashion a sanction that will achieve full remedial relief. See

McComb, 336 U.S. 187, 193-94. Often this discretion

involves ordering payment for the costs of past non-

compliance -- as, for example, in alimony contempt

proceedings. See id. See also Pozsgai, 999 F.2d at 735

("Civil contempt is remedial in nature, serving to coerce

compliance with a court order or to compensate the other

party for losses sustained due to noncompliance.")

(emphasis added). Moreover, the DCIU could purge its

contempt by paying John T. the $1,100 and complying with

the mandates of the Preliminary Injunction.

The DCIU makes two arguments that the sanction was

punitive, neither of which is persuasive. First, the DCIU

argues that statements made by the District Court at the

outset of the contempt hearing show an intent to punish.

Specifically, the District Court stated that it was concerned

with maintaining respect for the courts and coercing the

DCIU’s compliance. Respect for the courts and coercion of

compliance, however, may be legitimate consequences of

12

any type of contempt proceeding. See Roe v. Operation

Rescue, 919 F.2d 857, 868 (3d Cir. 1990). Even if the

sanction had the tangential effect of increasing the DCIU’s

respect for the District Court and coercing it to comply with

the Preliminary Injunction, the statement alone does not

render the sanction punitive.

Second, the DCIU disputes the methodology by which the

District Court arrived at the $1,100 sanction. The DCIU

contends that if the calculation of the amount of the

sanction was improper, it could not have been intended to

compensate John T. Even if its methodology was not

perfect, however, the District Court did articulate the

relationship between the sanction and the actual damage

suffered by John T. -- $1,100 is one-twelfth of the annual

cost of providing a teacher’s aide. Accordingly, the District

Court’s measure is consistent with its stated compensatory

objective.

Because the sanction imposed by the Contempt Order is

not punitive, Pozsgai is distinguishable. Accordingly, there

is no reason to upset the District Court’s characterization

of the Contempt Order.

4. The Notice of the Contempt Hearing was

Sufficient.

Finally, the DCIU contends that the District Court’s order

to Show Cause why the DCIU should not be found in

contempt was not sufficiently particular. Specifically, the

DCIU objects that the Show Cause Order neither identified

whether the contempt proceeding would be civil or criminal

in nature nor enumerated specific grounds for finding

contempt. The Show Cause Order did, however, refer to

both the Preliminary Injunction and Hearing Officer

Stengle’s report. Because Hearing Officer Stengle’s report

enumerated the specific instances in which the DCIU

allegedly failed to comply with the Preliminary Injunction,

we conclude that this notice was sufficient. Furthermore,

the Show Cause Order indicates that the District Court

conferred with both John T. and the DCIU on January 30,

2001, to discuss the implications of Hearing Officer

Stengle’s report. To the extent the DCIU was not clear

about the grounds on which it might be found in contempt

13

or the nature of the contempt proceedings, it could have

sought clarification at this conference.

In seeking more particular notice, the DCIU argues that

it should have been provided the notice required for

criminal contempt, giving reasonable time for preparation of

the defense. See Rule 42(b) of the Federal Rules of Criminal

Procedure. As explained above, however, the contempt

proceedings before the District Court were civil, not

criminal. Accordingly, the notice requirements of Rule 42(b)

are inapposite.

B. Attorney’s Fees

John T. argues that the District Court’s refusal to award

him attorney’s fees was reversible error to the extent that it

relied on Buckhannon Bd. & Care Home, Inc. v. West

Virginia Dept. of Health & Human Resources, 532 U.S. 598

(2001). John T. maintains that Buckhannon should not

preclude an award of attorney’s fees pursuant to the fee-

shifting provision of the IDEA for two reasons. First, he

contends that Buckhannon does not apply to IDEA.

Alternatively, and assuming arguendo that Buckhannon

does apply, he argues that he is a "prevailing party" entitled

to attorney’s fees under Buckhannon. We conclude first that

Buckhannon does apply to the IDEA fee-shifting provision

and second that the District Court did not err in declining

to award attorney’s fees to John T.

1. Background.

We begin our analysis of John T.’s appeal with the

"American Rule" that parties typically are responsible for

their own attorney’s fees. See Alyeska Pipeline Serv. Co. v.

Wilderness Soc’y, 421 U.S. 240, 247 (1975). Given this rule,

we follow "a general practice of not awarding fees to a

prevailing party absent explicit statutory authority." Key

Tronic Corp. v. United States, 511 U.S. 809, 819 (1994). As

John T. and the District Court note, however, the fee-

shifting provision of the IDEA does provide such explicit

statutory authority. Section 1415(i)(3)(B) states,"In any

action or proceeding brought under this section, the court,

in its discretion, may award reasonable attorneys’ fees as

part of the costs to the parents of a child with a disability

who is the prevailing party."

14

The Supreme Court has held that "plaintiffs may be

considered ‘prevailing parties’ for attorney’s fees purposes if

they succeed on any significant issue in litigation which

achieves some of the benefit the parties sought in bringing

suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)

(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st

Cir. 1978)). Accordingly, "[t]he touchstone of the prevailing

party inquiry must be the material alteration of the legal

relationship of the parties in a manner which Congress

sought to promote in the fee statute." Texas State Teachers

Ass’n v. Garland Independent School Dist., 489 U.S. 782,

792-93 (1989).4

More recently, the Supreme Court further clarified its

understanding of the term "prevailing party." In

Buckhannon, the Supreme Court held that a litigant whose

FFHA and ADA actions were mooted by intervening state

legislation was not a "prevailing party" for purposes of the

FFHA and ADA fee-shifting provisions. See 532 U.S. at 600-

01. Although the Buckhannon Court recognized that the

plaintiff ’s suit might have been a "catalyst" of the

defendant’s voluntary, legislative change, it held that the

so-called "catalyst theory" was an insufficient basis on

which to confer "prevailing party" status. See id. at 602.

While the legislative change indisputably altered the legal

relationship of the parties, it lacked an essential feature --

namely, a "judicial imprimatur." Id. at 605 (emphasis

omitted).

The Buckhannon Court concluded that in order to be a

"prevailing party," a party must be "successful" in the sense

that it has been awarded some relief by a court . Id. at 603-

604. This concept of "success," however, is not inconsistent

with a defendant’s concession or voluntary compliance. The

Court acknowledged that a party benefitting from a

settlement agreement, for example, could be a "prevailing

party," provided the "change in the legal relationship of the

_________________________________________________________________

4. Although Hensley and Texas State Teachers Ass’n interpreted the fee-

shifting provision of 42 U.S.C. section 1988, Hensley noted that its

standards were "generally applicable in all cases in which Congress has

authorized an award of fees to a ‘prevailing party.’ " Hensley, 461 U.S. at

433, n.7.

15

parties" was in some way "judicially sanctioned." Id. at 605

(emphasis added). The Supreme Court then reconciled this

rule with its previous holdings, noting that it had"only

awarded attorney’s fees where the plaintiff ha[d] received a

judgment on the merits . . . or obtained a court-ordered

consent decree." 532 U.S. at 605.

Finally, in J.O. v. Orange Twp. Bd. of Educ., 287 F.3d

267 (3d Cir. 2002), we considered whether an IDEA litigant

who obtained a stay-put order5 was a "prevailing party" for

purposes of the IDEA fee-shifting provision. Noting that

stay-put orders "function[ ], in essence as an automatic

preliminary injunction" to maintain the status quo during

the pendency of proceedings, we focused on the interim

nature of the relief. Id. at 272 (quoting Drinker v. Colonial

Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996)) (alteration in

original). Although we recognized the importance of the

interim relief that the IDEA provides, we held that such

relief could only form the basis of an attorney’s fee award

if it was in some way "merit-based." Id. at 273-74. Because

the interim relief obtained in J.O. did not involve a

resolution on the merits of a claim, we held that J.O. was

not a prevailing party. See id. Significantly, the J.O.

decision was decided on this independent basis and

without reference to Buckhannon.

2. Buckhannon Applies to the IDEA Fee-Shifting

Provision.

We hold that Buckhannon applies to attorney’s fee claims

brought under the IDEA fee-shifting provision. In doing so,

we follow the reasoning articulated by the Second Circuit in

J.C. v. Regional School Dist. 10, Bd. of Educ., 278 F.3d 119

(2d Cir. 2002).

We agree with J.C. that Buckhannon heralded its wider

applicability -- although it dealt only with the fee-shifting

provisions of the FFHA and the ADA. Specifically,

_________________________________________________________________

5. In relevant part, the stay-put provision of the IDEA provides that

"during the pendency of any proceedings conducted pursuant to this

section, unless the State or local educational agency and the parents

otherwise agree, the child shall remain in the then-current educational

placement of such child . . . ." 20 U.S.C. S 1415(j).

16

Buckhannon noted that Congress has used identical

"prevailing party" language in numerous fee-shifting

provisions, see 532 U.S. at 602-03 (expressly identifying

the Civil Rights Act of 1964, the Voting Rights Act

Amendments of 1975 and the Civil Rights Attorney’s Fees

Awards Act of 1976 as examples), and explained that the

Supreme Court interprets these fee-shifting provisions

consistently. See 532 U.S. at n.4 (citing Hensley, 461 U.S.

at 433, n. 7 ("[The standards used to interpret the term

"prevailing party" are] generally applicable in all cases in

which Congress has authorized an award of fees to a

‘prevailing party.’ ") (emphasis added)).

The fee-shifting provision of the IDEA is no exception.

The term "prevailing party" as it is used in Section

1415(i)(3) is not modified in any way. Moreover, as the J.C.

court noted, the IDEA’s legislative history shows that

Congress intended that courts interpret the term"prevailing

party" consistently with other fee-shifting statutes,

including those expressly mentioned in Buckhannon. See

278 F.3d at 124. When the fee-shifting provision was added

to the IDEA’s predecessor statute, the Senate Labor and

Human Resources Committee explained "it is the

committee’s intent that the terms ‘prevailing party’ and

‘reasonable’ be construed consistently with the U.S.

Supreme Court’s decision in [Hensley]." S. Rep. No. 99-112,

at 13 (1986), reprinted in 1986 U.S.C.C.A.N. 1798, 1803

(footnote omitted).

John T.’s arguments to the contrary ask us to distinguish

the IDEA fee-shifting provision from the fee shifting

provisions at issue in Buckhannon. John T. argues that

S1415(i)(3), unlike the fee-shifting provisions of the ADA

and the FFHA, clarifies at great length the effect of

"settlement offers" and "final resolution" on attorney’s fee

calculations. See, e.g., 20 U.S.C. S 1415(i)(3)(D)-(G). He

argues that this clarification is consistent with the IDEA’s

policy of encouraging parents and school boards to pursue

all types of amicable resolution -- whether or not judicially

sanctioned. From this premise, he then concludes that

Congress also intended to make attorney’s fees available for

all plaintiffs who achieve such amicable resolutions.

17

To the extent that John T. attempts to resurrect the

"catalyst theory" as a basis of recovering attorney’s fees, his

argument is "simply not viable after Buckhannon, which

considered and rejected various policy arguments in favor

of the catalyst theory." J.C., 278 F.3d at 124. Additionally,

as the J.C. court noted,

it is difficult to reconcile [the] policy argument for

awarding fees pursuant to informal settlements with

the fact that, even before Buckhannon, Congress

deliberately chose not to allow the recovery of

attorneys’ fees for participation in IEP proceedings that

were not convened as a result of an administrative

proceeding or judicial action. 20 U.S.C.

S 1415(i)(3)(D)(ii). The IEP Team is a mechanism for

compromise and cooperation rather than adversarial

confrontation. This atmosphere would be jeopardized if

we were to encourage the participation of counsel in

the IEP process by awarding attorneys’ fees for

settlements achieved at that stage.

Id. at 124-25.

Moreover, the provisions that John T. cites for support do

not relate to the "prevailing party" requirement. Rather,

SS 1415(i)(3)(D) through (G) define situations in which

attorney’s fees may be prohibited or reduced, e.g., when a

parent has unjustifiably rejected a settlement offer or when

a parent has unreasonably protracted the final resolution.

John T. contends that our reading of Section 1415(i)(3)

will create a perverse incentive for parents to protract

litigation with the hope of receiving some previously-

incurred attorney’s fees rather than settling with the

certainty of receiving no attorney’s fees. This argument

"puts the cart before the horse" as it assumes that litigation

decisions are driven by a desire to collect or to avoid paying

attorney’s fees -- and not by the litigants’ interests. Even

under fee-shifting regimes such as S 1415(i)(3) and the

"generous formulation" that the Supreme Court gives the

term "prevailing party," Hensley, 461 U.S. at 433,

attorney’s fee awards ultimately are awarded at a court’s

discretion. Because attorney’s fees are never guaranteed, we

question that litigation would be protracted for the sole

purpose of winning an award.

18

Finally, to the extent that John T. invites us to interpret

anew the term "prevailing party" in light of the IDEA

policies, we decline to do so. Section 1415(i)(3) in no way

alters the term’s established meaning. The Buckhannon

Court expressly warned that

[g]iven the clear meaning of "prevailing party" in the

fee-shifting statutes, we need not determine which way

. . . various policy arguments cut. In Alyeska , . . . we

said that Congress had not "extended any roving

authority to the Judiciary to allow counsel fees as costs

or otherwise whenever the courts might deem them

warranted." To disregard the clear legislative language

and the holdings of our prior cases on the basis of . . .

policy arguments would be a similar assumption of a

"roving authority."

532 U.S. at 610 (citations omitted).

3. The District Court did not err in Declining to

Award John T. Attorney’s Fees because John T. is

not a Prevailing Party.

Having concluded that Buckhannon controls the

interpretation of "prevailing party" as it is used in

S 1415(i)(3)(B), we next consider whether John T. is, in fact,

a prevailing party to whom attorney’s fees may be awarded.

Because we conclude that he is not, we will affirm the

District Court’s Order denying him attorney’s fees. In doing

so, however, we adopt a somewhat broader view of

"prevailing party" than did the District Court which held

that a prevailing party must have (1) received a judgment

on the "merits" of the litigation, or (2) obtained a court-

ordered consent decree. Our broader view is consistent with

our holding in Truesdell v. Phila. Hous. Auth. , 290 F.3d 159

(3d Cir. 2002), where we held that a stipulated settlement

could confer prevailing party status under certain

circumstances. See id. at 165 (finding stipulated settlement

"judicially sanctioned" under Buckhannon where it (1)

contained mandatory language, (2) was entitled "Order," (3)

bore the signature of the District Court judge, not the

parties’ counsel, and (4) provided for judicial enforcement).

Under this interpretation, John T. is still not a prevailing

party under Buckhannon and J.O. We begin our analysis by

19

focusing on John T.’s successes. Specifically, John T.

obtained three forms of relief during the course of this

litigation: the Preliminary Injunction, the Contempt Order,

and the acceptable IEP that prompted him to seek a

voluntary dismissal. As discussed below, none of these

forms of relief will serve as the basis for conferring

prevailing party status upon John T. We address each in

turn.

a. The Preliminary Injunction

The Preliminary Injunction is an insufficient basis on

which to award attorney’s fees to John T. because it is

interim relief not based on the merits of John T.’s claims.

Like the stay-put order at issue in J.O., the Preliminary

Injunction was "designed to maintain the status quo during

the course of proceedings." J.O., 287 F.3d at 272.

Specifically, it required the DCIU to continue providing

John T. with special education programs and related

services at St. Denis.

Also like the stay-put order in J.O., the Preliminary

Injunction was not merits-based. Although the District

Court concluded that John T. "ha[d] shown a reasonable

probability of success on the merits," it did not resolve any

merit-based issue in John T.’s favor. John T. I , 2000 U.S.

Dist. LEXIS 6169 at *9. In fact, all of John T.’s claims

against the DCIU ultimately were dismissed with prejudice

at his own request. See John T. II, 2001 U.S. Dist. LEXIS

18254 at *23.

Accordingly, J.O. controls, and John T. cannot be deemed

a prevailing party based on the Preliminary Injunction

alone. J.O. binds us independently, and Buckhannon does

not require a different result. While J.O. presents IDEA

claimants with a hurdle unidentified in Buckhannon, it is

not inconsistent with Buckhannon. Before this Court,

therefore, the requirements of both J.O. and Buckhannon

govern claims brought under the IDEA fee-shifting

provision.

b. The Contempt Order

Similarly, the Contempt Order will not confer prevailing

party status upon John T. This relief is, however, more

20

difficult to analyze within the framework of our existing

precedent. While the Contempt Order certainly effected a

"judicially sanctioned change in the legal relationship of the

parties," Buckhannon, 532 U.S. at 605, it is difficult to

ascertain whether it is "interim" or "merits-based" relief in

the sense contemplated by J.O., 287 F.3d at 273.

On one hand, the District Court finally determined the

DCIU’s contempt by applying the "merits" of civil contempt

-- that (1) a valid court order existed, (2) the DCIU knew of

the order, and (3) the DCIU disobeyed the order. See Harris,

47 F.3d at 1326. Accordingly, the Contempt Order may be

characterized as both non-"interim" and "merits-based"

with respect to the law governing contempt orders

generally.

On the other hand, John T. seeks attorney’s fees

pursuant to the IDEA fee-shifting provision -- and not, for

example, as an additional sanction for the DCIU’s civil

contempt. From this perspective, it is decisive that the

Contempt Order was merely a mechanism to enforce the

Preliminary Injunction. With respect to the IDEA claims,

therefore, the Contempt Order can be neither less"interim"

nor more "merits-based" than the Preliminary Injunction,

itself.

We conclude that we must consider the Contempt Order

in its relation to the underlying relief that it enforces. In

many respects, the scope of any civil contempt order is

both defined and limited by the relief it enforces. For

example, it is well settled that the viability of a civil

contempt order entered either to remedy past non-

compliance or to coerce future compliance with a

preliminary injunction hinges on the validity of the

underlying injunction. See United States v. United Mine

Workers, 330 U.S. 258, 295 (1947) ("The right to [a civil

contempt order’s] remedial relief falls with an injunction

which events prove was erroneously issued."); Latrobe Steel

Co. v. United Steelworkers of America, 545 F.2d 1336,

1345-46 (3d Cir. 1976) (extending rule to coercive-- as

opposed to remedial -- civil contempt orders). Additionally,

under some circumstances, the appealability of a civil

contempt order is contingent on the finality of the

proceedings giving rise to the order. See, e.g. , 15B Charles

21

Alan Wright & Arthur R. Miller, Federal Practice and

Procedure S 3917 (1992). We extend this general principle

to conclude that a contempt order may not confer

prevailing party status for purposes of the IDEA fee-shifting

provision unless it enforces some IDEA relief that could,

itself, confer prevailing party status. In any other situation,

the party seeking the contempt order must seek relief for

costs and fees as appropriate in the contempt proceeding --

as indeed the District Court indicated in denying the

attorney’s fee under IDEA: "Plaintiffs, should they

successfully defend the contempt finding on appeal, may

resubmit a motion for fees on that issue alone . . .."

The Supreme Court’s instruction to consider that"which

Congress sought to promote in the fee statute" underscores

the importance of focusing on the underlying IDEA relief.

Texas State Teachers Ass’n, 489 U.S. at 793. By enacting

the IDEA fee-shifting provision, Congress surely did not

seek to provide attorneys fees to any party who could prove

the "merits" of civil contempt independent of an IDEA

success. More likely, Congress sought to provide fees only

to those who prevailed with respect to an IDEA claim. When

the IDEA fee-shifting provision authorizes attorneys fees "in

any action or proceeding brought under this section," it not

only limits the universe to which it applies but also clarifies

the type of proceeding on which a party must"prevail." 20

U.S.C. S 1415(i)(3). Under J.O., the Preliminary Injunction is

an insufficient basis on which to deem John T. a prevailing

party. Accordingly, the Contempt Order that enforces it is

also insufficient.

c. The Acceptable IEP

Finally, John T. is not a prevailing party by virtue of his

having obtained an acceptable IEP. Although John T.

undoubtedly realized an objective of his litigation upon

obtaining an acceptable IEP which placed him in the public

schools, this result was not "judicially sanctioned" as

required by Buckhannon. 532 U.S. at 605. John T. and the

DCIU developed the IEP through negotiations out of court,

and no court has endorsed the agreement with a "judicial

imprimatur." Id.

22

John T. argues to the contrary that we are not bound by

Buckhannon’s requirement that settlements must be

"judicially sanctioned" in order to confer prevailing party

status. For this proposition, he cites Barrios v. California

Interscholastic Federation, 277 F.3d 1128 (9th Cir.) cert.

denied 123 S.Ct. 98 (2002).

In Barrios, the Ninth Circuit Court of Appeals dismissed

Buckhannon’s conclusions regarding settlement agreements

as dictum. See 277 F.3d at n.5. In doing so, however, the

court distinguished Buckhannon on very narrow grounds. It

argued that Buckhannon applies only where litigation is a

catalyst for policy change, such as intervening legislation,

and not where litigation is a catalyst for mutually agreed

upon settlement. See id. (In fact, the Barrios court

discusses settlement as if it fell outside of the"catalyst

theory" framework altogether.) Instead, the Barrios court

relied on the Ninth Circuit’s pre-Buckhannon rule that

settlements could confer prevailing party status with or

without judicial sanction. See id. at 1134 (citing Fischer v.

SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000)).

We will not follow Barrios’s narrow reading of

Buckhannon. Although Buckhannon did warn against

relying on dictum, see 532 U.S. at n.5 (implying that the

"catalyst theory," itself, was spawned from Supreme Court

dictum), it also cast a very broad net. By expressly linking

its holding to other "prevailing party" fee-shifting statutes,

the Buckhannon Court encourages an expansive reading.

See id. at 602-03. Moreover, we read Buckhannon to reject

the "catalyst theory" whole hog. While Barrios differentiates

between policy changes and changes achieved through

voluntary settlement, the Supreme Court’s own

understanding of the "catalyst theory" does not reflect such

a distinction. See 532 U.S. at 601 ("[T]he ‘catalyst theory’

. . . posits that a plaintiff is a ‘prevailing party’ if it achieves

the desired result because the lawsuit brought about a

voluntary change in the defendant’s conduct.").

IV. Conclusion

We will affirm the District Court’s Contempt Order. The

District Court’s finding that the DCIU was in contempt is

23

sufficiently supported. The Preliminary Injunction was not

overly vague or ambiguous. The DCIU was not entitled to

the procedural safeguards applicable in criminal contempt

proceedings. In addition, the Show Cause Order provided

the DCIU with sufficient notice of the contempt hearing.

We will also affirm the District Court’s denial of the

petition for attorney’s fees. Under J.O. and Buckhannon,

which we apply expressly to the IDEA fee shifting provision,

John T. is not a "prevailing party" by virtue of his having

obtained the Preliminary Injunction, the Contempt Order or

the acceptable IEP.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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