Opposition Brief — Warner ex rel. Warner v. St. Paul Independent School District No. 625

~ co Non oe aa

ee ees a 6 Ae

(Gas

Nan M iy

i JUL 4 i¥y§

No. 97-2014 aie

Eroriecnane, COURT, us. '

In the ~ ase

Supreme Court of the United States

October Term, 1997

ERIC WARNER, A MINOR, BY AND THROUGH

LINDA WARNER, HIS MOTHER,

Petitioner,

Vv.

INDEPENDENT SCHOOL DISTRICT NO. 625,

ST. PAUL,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RESPONDENT’S BRIEF AND APPENDIX

IN OPPOSITION TO PETITION

NANCY L. CAMERON

Counsel of Record |

INDEPENDENT SCHOOL DISTRICT NO. 625

360 Colborne Street

Saint Paul, Minnesota 55102

(651) 293-5153

Attorney for Respondent

1998 — Bachman Legal Printing @ (612) 339-9518 @ 1-800-715-3582 & Fax (612) 337-8053

AEROS at -¥ - “~ —

QUESTION PRESENTED

The hearing review officer (HRO) affirmed School

District had provided Student with a free appropriate public

education (FAPE) and had properly assessed Student's

disability under the Individuals with Disabilities in Education

Act (IDEA) and state law. It nevertheless ordered an

independent assessment of Student under state law. The

district court held Parent did not succeed on the actual merits

of her claims but was still a "prevailing party” entitled to

attorneys’ fees under federal law, 20 U.S.C. § 1415(e)(4)(B)

(1994), because the HRO's order materially altered the parties’

legal relationship. The question presented is:

Whether the Eighth Circuit properly concluded

Parent was not a "prevailing party" entitled to

attorneys’ fees under federal law, 20 U.S.C. §

1415(e)(4)(B) (1994).

eimai

TABLE OF CONTENTS

Page

QUESTIONS SII |

TABLE OF AUTHOUIIONS oo a iv |

OPIGNINS BEIAIW i

STATUTES AND REGULATIONS INVOLVED..........0000-+

STATEMENT OF THE CASE

REASONS FOR DENYING THE PETITION.......sccssccsssssseee 3

I. Because the Eighth Circuit's Decision Is

Consistent With Settled Law, the Petition

SONS DIU SI mcsiskntcth in ea sic ici 3

A. The Eighth Circuit's "prevailing-party"

decision is consistent with this Court's

GRIND A ssrech BPR ip SMA WAT Dy gr de RS LUOUOR eee 3

B. A “material-alteration test" would lead to

I i aii es os 6

C. Additional grounds support the decision........... 7

Il. This Case Presents No Issues of General

Importance Because the Law Upon Which

Parent Relies Has Been Amended. ........................00 9

Iti. Parent's Other Bases For Review Are Meritless..... 11

A. The independent assessment ordered

pursuant to Minnesota law did not entitle

parent to fees under federal law. ..................... 11

il

aS, serra te eas ace nis

B. The decision is not contrary to IDEA's

a 13

tg B_ERSERFCATE TC SRS aR Ne a Ee Ne 14

RESPONDENT'S APPENDIX .....................c0000eeee0e R. App.- i

ill

me

TABLE OF AUTHORITIES

Cases Page

A.J. by L.B. v. Kierst, 56 F.3d 849 (8th Cir. 1995). ............... 6

Bradley v. School Board of Richmond, 416 U.S. 696

ET IE Ts sscchcicicuetdascnnesetencdhteadewbiitebiaaddacincsks chvimiemienaniepascoseuntta ll

City of Springfield v. Kibbe, 480 U.S. 257 (1987)................ 12

Combs v. School Dist. of Rockingham County, 15 F.3d

BF CA te: FP ica sitienictitaeclavihincceorsthadnkvivvaevenent 8,9

DeGuido v. Pung, 920 F.2d 525 (8th Cir. 1990) .............. ee 9

Dillon v. Nissan Motor Co.. Ltd., 986 F.2d 263 (8th Cir.

PE Bicla ks sie seear pasdcbecassuismubeemeiobdiccecia ins pceiassamidiabacaeie: 12

FSsrar V. FACOG, DOG Wicks LOS LEED avjeescckecasnccanes dincetccesess 4-7

Hensley v. Eckerhart, 461 U.S. 424 (1983) ...ccccccsessesseseeseen 12

i

Hewitt v. Helms, 482 U.S. 755 (1987) ............cscssessssseees 3, 5-7 ;

Jodlowski v. Valley View Community Unity School Dist. |

No.365-U, 109 F.3d 1250 (7th Cir. 1997). 00... 7

Johnson v. Bismarck Pub. School Dist., 949 F.2d 1000

kD DT RE | pI RIC EN DMN: a ee OARS OR He ee OID 7

Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1991).....c.sssseeesseon 7 )

National Org. for Women v. Operation Rescue, 37 F.3d

GRD CER es Ia alan colts lacrinaiccchctekcbccharen’ 1]

Parents of Student W. v. Puyallup School Dist., 31 F.3d

Ber Creek Mt Fe i sce ada cccacocbhesoanictacgtiockous tekcuasseati cones 7-8

iv

Payne v. Board of Educ., Cleveland City Schools, 88 F.3d

ee as Be vicencnieinsaibchaicainsicicelaandiscalaajeccaihaaiebeebiin 8

Plough v. West Des Moines Community School Dist., 70

Fe PRE COE Realy BO icepicieckbnchnaniiakcasiccesaancisnesioecutides 12

Smith v. Robinson, 468 U.S. 992 (1984) ooo... .cccccecceeeseseeereees 12

Texas State Teachers Ass'n v. Garland Indep. School

OE ME EA Fie aD ssenvissacsn innasennsastlactavicuadaasn 3-6, 8

Urban by Urban v. Jefferson County School Dist. R-1,

Oe Fe Fae Ce Gaels FPA iii secs inti chestckcgicvaniantlsdcovacsinns 9

Warner by Warner v. Independent School Dist. No. 625,

ESE ES E558 Te es Fe ici dicate eettcidhcsiteeabeicis l

Warner by Warner v. Independent School Dist. No. 625,

2 Tare Pe as PORN, Se acc caniceaienviecsincivatcndesmalaaneasccis l

Yancy v. McDevitt, 802 F.2d 1025 (8th Cir. 1986).............. 12

Statutes and Rules

20 U.S.C.A. § 1400(d)(1)(C) (1998 Supp.) ...cccccsseeccsseecsseeeee 13

WUC SIMS 1,11

20 U.S.C.A. § 1415(b)(7) (1998 Supp.)......cccccsseccssescsseessseees 10

POUBO. 6 ISMN Ss 12

20 U.S.C. § 1415(€)(4)(B) (1994) ....ccccccsecssssecssseecsssesesseee £23

20 U.S.C. § 1415(€)(4)(D) (1994) ..ccscccccscssescccssecssseeees 37.3

BD UA... § BOTS) Ca Fe Bisriieciteivnxicctthiianesentpecvicetuben 7,8

20 U.S.C.A. § 1415(i)(3)(FXiv) (1998 Supp.)............ eee 10

BE UA © LPI sinvintenitnivedsicanidrstaaniaaalaiteabsaiiaainthosies 12

34 C.F.R. § 300.503(b) (1995)............ oveliaaipantdandaictsunsiaceen 8

ER. TARR. S RAGE FE Co Pee cciterinaitivieniicsinlevissipibahacbincamann 1,12

Minn. Stat. § 120.17, subd. 3(b)(1994)............ccccssessssssseeeeeee l

Minn. Stat. § 120.17 subd. 36(e)(1996)................ccccccsccsscceseees 9

Minn. Stat. § 120.17, subd. 3b(h) (1994)........... cc esesseeeeees 1,12

ERIN, DEUS: Bir Fit scacernidssckenhiisccadbsdmischeansaineaubeis 12

WATE, Th. THe PE EP LIME T scnncanvntsntabssatsionanisvevencsetoadtacss 1,8

NEEM. Th. SHAPED LOTR icsrcsinbbenscbatbincdebiedsbenapnyearences Pe BS

1995 Minn. Laws ch. 3, art. 3, § 2 (codified at Minn. Stat.

© 120.5%, GE, FERMI SSS av ciniacsstarslenintcnedecvaisipueces 9

vi

OPINIONS BELOW

The opinion of the court of appeals (A-3--A-15) is

reported at 134 F.3d 1333 (8th Cir. 1998). The opinion of the

district court (A-16--A-43) is reported at 26 IDELR 831 (D.

Minn. 1996). The opinion of the hearing review officer (A-

46--A-73) is not reported.

STATUTES AND REGULATIONS INVOLVED

This case involves 20 U.S.C. § 1415 (1994) of the

Individuals with Disabilities in Education Act (IDEA) (A-74--

A-79); Minn. Stat. § 120.17, subd. 3b (1994) (R. App. 1--R.

App. 5); Minn. R. 3525.4000 (1995) and Minn. R. 3525.3300

D (1995) (R. App. 6).

Minnesota Rule 3525.4000 (1995) provides in relevant

part: “If a hearing officer requests an independent educational

assessment of a child . . ., the cost of the assessment shall be

at district expense."

STATEMENT OF THE CASE

Most pertinent facts are set out in the court of appeals’

decision (A-4--A-7) and are thus incorporated by reference.

Stull, certain facts must be highlighted.

Parent Linda Warner's initial request for a due process

hearing alleged violations of IDEA, 20 U.S.C. § 1400 er seq.

(1994), and Minnesota law, Minn. Stat. § 120.17 (1994) and

Minn. R. 3525.0000 et seg. She claimed Student had been

improperly classified as having an emotional or behavioral

disorder (E/BD), had been denied a free appropriate public

education (FAPE), and was thus entitled to an award of

private school expenses. (A-5). Pursuant to 20 U.S.C. §

1415(e)(4)(D)(1994), the School District made a settlement

offer (1) of $5000 to settle all Parent's monetary claims, (2) to

place Student in an appropriate public educational placement

in a Twin Cities' area public school of Parent's choice based

I

upon space availability or to provide Student with special

education services at a private school selected and paid for by

his Parent, (3) to classify Student as Other Health Impaired

("OHI") on his individualized education plan (IEP), and (4) to

pay $3000 for attorneys’ fees and costs. (A-41). Parent

rejected this offer. (A-12). After a nine-day due process

hearing, the hearing officer rejected all of Parent's claims and

concluded that the School District had provided FAPE. (A-

5). Parent appealed. Id.

Contrary to Parent's assertion (Petition at 1), the hearing

review officer (HRO) ruled in the School District's favor. He

affirmed the hearing officer's decision in all matters relevant

to the instant decision. (A-70). Relying on Minnesota Rule

3525.4000 (1995) (A-66), the HRO also ordered the School

District to conduct an independent assessment of Student,

applying state criteria. (A-71--A-72). The HRO expressly

ruled the assessment results would not affect his conclusion or

the conclusion below that the School District properly

classified Student's disability as E/BD. (A-67). Neither party

appealed, and that decision became final. (A-6).

Parent then filed this action for attorneys’ fees under 20

U.S.C. § 1415(e)(4)(B) (1994), seeking fees of over $158,000,

and expert witness fees of $5,420. Parent claimed, among

other things, that the independent assessment order made her

a "prevailing party." The School District denied Parent was a

prevailing party and contended the fees were unreasonable.

Upon the parties’ cross-motions for summary judgment, the

district court acknowledged "plaintiff did not succeed on any

significant legal issue or, .. . ‘on the actual merits of the claim

or the relief sought.’" (A-31--A-32). It nevertheless awarded

attorneys’ fees because the HRO's order "materially altered the

legal relationship of the parties." (A-8, A-31). Finding the

fees “far in excess of a reasonable amount in light of the

results obtained," the district court reduced the attorneys’ fees

to $63,501.45.

The Eighth Circuit reversed. Applying this Court's

precedents, it held Parent was not entitled to any attorneys’

2

fees. It ruled, despite the independent assessment order,

Parent was not a "prevailing party" because she lost on the

merits of her IDEA claims. (A-10). It also stated if she were

an IDEA prevailing party, the court would substantially

reduce the award because the relief did not provide direct and

immediate benefit to Student. Rather, it was designed to

encourage and facilitate Student's reentry into public school.

Finally, it noted the School District had made an offer of

settlement in accordance with 20 U.S.C. § 1415(e)(4)(D)

(1994) which Parent rejected "at her own financial risk,

including the risk of paying her own attorneys’ fees to pursue

IDEA claims that ultimately failed." (A-12).

REASONS FOR DENYING THE PETITION

I. Because the Eighth Circuit's Decision Is Consistent

With Settled Law, the Petition Should be Denied.

To be awarded attorneys’ fees under IDEA, Parent must

meet a two-part test: First, she must establish she is

“prevailing party” under 20 U.S.C. § 1415(e)(4)(B)(1994).

Second, she must establish the fees sought are reasonable. Id.

Parent only challenges the Eighth Circuit's decision that she

was not a "prevailing party." She does not challenge the

court's decision (A-11) that the fees awarded were excessive.

A. The Eighth Circuit's "prevailing party" decision

is consistent with this Court's decisions.

The Eighth Circuit's decision is consistent with a long-

line of attorneys’ fees cases out of this Court discussing who

is a "prevailing party.” In Hewitt v. Helms, 482 U.S. 755, 760

(1987), this Court declared: "Respect for ordinary language

requires that a plaintiff receive at least some relief on the

merits of his claim before he can be said to prevail.”

(Emphasis added). This Court cited this same language with

approval in Texas State Teachers Ass'n v. Garland Indep.

3

School Dist., 489 U.S. 782, 791 (1989), explaining a

"prevailing party" is “one who has succeeded on any

significant claim affording it some of the relief sought." Id.

(emphasis added). In Farrar v. Hobby, this Court reiterated

“to qualify as a prevailing party, a civil rights plainti*f must

obtain at least some relief on the merits of his claim." 506

U.S. 103, 111 (1992) (emphasis added).

[A] plaintiff "prevails" when actual relief on the

merits of his claim materially alters the legal

relationship between the parties by modifying the

defendant's behavior in a way that directly benefits

the plaintiff.

Id. at 111-112 (emphasis added). Relying on these cases, the

Eighth Circuit properly reversed the district court. These

cases mandate that a plaintiff receive at least some relief on

the merits of her claims. As the district court acknowledged

and is undisputed, however, Parent received no relief on the

merits of her claims: "[H]er IDEA claims were unsound."

(A-12).

Ignoring the legal requirement of success on the merits,

Parent contends, and the district court agreed, that a "material

alteration in the parties’ legal relationship" is a sufficient basis

to make a plaintiff a "prevailing party." The appellate court

correctly rejected a prevailing-party test based solely on this

language. Acknowledging the existence of the “material

alteration" language in this Court's opinions, the Eighth

Circuit stated this language

is the standard by which the Court measures how

much relief on the merits is sufficient to justify at

least a partial fee award; it is not a basis for awarding

fees to a plaintiff who did not prevail on the merits

of any claim under the fee-shifting statute in

question.

oe a a ee ee ee ee

(A-8).

Claiming the Eighth Circuit's interpretation conflicts with

Farrar and Garland, Parent brings this Petition. What the

Eighth Circuit meant by its interpretation is not entirely clear.

On the one hand, the court may have meant that to prevail,

plaintiff must show not only that she received relief on the

merits of her claim but also that the relief was “material."! On

the other hand, it may have meant that materiality goes to the

reasonableness of the fee.” Either way, no compelling reason

' Support for this interpretation is found in Farrar and Garland. In

Garland, this Court held to cross the prevailing-party threshold, the

plaintiff must have succeeded on a significant issue in litigation which

achieved some of the benefit the party sought in bringing suit. It noted

"the floor in this regard" is provided by the Hewitt v. Helms decision, in

which this Court recognized "a party who litigates to judgment and loses

on all of his claims . . . [cannot] be a prevailing party’," 482 U.S. 755, 757.

Garland, 489 U.S. at 792. While this Court made its first reference to a

“material alteration of the legal relationship" in Garland, id., nowhere did

the Court indicate it was abandoning its long-standing requirement that

plaintiff receive some success on the merits of plaintiff's claims. Indeed,

in Farrar, this Court again recognized that the plaintiff must receive "actual

relief on the merits of his claim." 506 U.S. at 111. Such relief must also

"materially alter{] the legal relationship between the parties." Id. This

language may imply that an "immaterial alteration" will not make a party

"prevail." For example, while Hewitt received a favorable judicial ruling

that his constitutional rights were violated, that ruling did not make him a

prevailing party because he did not get relief on any of his claims. In other

words, that favorable ruling or "relief" was "not material."

>The Garland Court discussed a “material alteration in the legal

relationship" in the context of whether the "plaintiff's success on a legal

claim [could] be characterized as purely technical or de minimis." 489

U.S. at 792. Then, in Farrar, Justice O'Connor noted:

While Garland may be read as indicating that this de minimis or

technical victory exclusion is a second barrier to prevailing

party status, the Court makes clear today that, in fact, it is part

of the determination of what constitutes a reasonable fee. .. .

When the plaintiff's success is purely technical or de minimis,

no fees can be awarded.

5

exists to grant the Petition. The court's interpretation is

consistent with the referenced cases. The result here would be

the same even if the court had made no attempt to explain the

“material-alteration" language because Parent did not prevail

on any of her claims, as this Court has consistently required.

The Eighth Circuit correctly rejected the argument that a

“material alteration in the parties’ legal relationship" is a

litmus test to determine who is a prevailing party. Rather to

cross the prevailing-party threshold, plaintiff must show af

least some success on the merits of the party's claims.’ The

law still provides that "a party who litigates to judgment and

loses on all of his claims . . . [cannot] be a ‘prevailing party’

for purposes of an award of attorney's fees." Hewitt, 482 U.S.

at 757; A.J. by L.B. v. Kierst, 56 F.3d 849, 865 (8th Cir.

1995).

B. A "material-alteration test'' would lead to absurd

results.

This Court has never held a “material alteration in the

parties’ legal relationship" is sufficient to make a party a

“prevailing party.” To adopt this test would lead to absurd

results. Suppose a school district wanted to perform an

assessment, for example, and the parent refused permission.

506 U.S. at 117 (O'Connor, J., concurring). Consistent with this reading,

she reyected the notion that Farrar's success was “material” simply because

he got one seventeenth millionth of what he sought. Id. at 121-22.

*At least" is used here because other factors bear on whether the

party has prevailed. For example, this Court has looked at whether (1) the

“defendant's behavior [has been modified] in a way that directly benefits

the plaintiff,” (2) the “relief . . . directly benefit{ed] [plaintiff] at the time

of the judgment or settlement,” (3) plaintiff is “entitled to enforce a

judgment, consent decree or settlement against defendant,” (4) “plaintiff

can point to the resolution of the dispute,” and (5) plaintiff got “some of

the relief sought." Farrar, 506 U.S. at 110-12; Garland, 489 U.S. at 791-

92; Hewitt, 482 U.S. at 764. Parent did not satisfy any of these other

factors either.

6

vo ey ee:

ee ee ee ee

If the school district pursued this issue in a due process

hearing and an assessment were ordered, the parent could

claim the parent "prevailed" because the order for assessment

would result in a “material alteration in the parties’ legal

relationship.” This is an absurd result because the parent

opposed the assessment, lost on her claim, and did not get

what she wanted in substance. On the other hand, the school

district got what it sought--the assessment--but would be

forced to pay the parent's attorneys’ fees.

C. Additional grounds support the decision.

Additional bases support the Eighth Circuit's decision to

deny fees altogether. "In some circumstances, even a plaintiff

who formally ‘prevails’ . . . should receive no attorney's fees at

all." Farrar, 506 U.S. at 115.

The Eighth Circuit suggested it would deny all fees even

if Parent were a "prevailing party." The court held the relief

ordered by the HRO did not directly benefit Student at the

time of judgment, as required by Farrar, 506 U.S. at 111, and

Hewitt, 482 U.S. at 764. The independent assessment was

designed to encourage Parent to return Student to public

school. Merely facilitating reentry into public school is not

enough to make Parent a “prevailing party." (A-11).

Jodlowski_v.-Valley View Community Unity School Dist.

No.365-U, 109 F.3d 1250, 1254 (7th Cir. 1997).

Furthermore, the relief ordered “differed very little from

what the School District voluntarily offered in settlement

before the administrative hearing." (A-11). In agreeing with

the School District that the fees awarded were excessive, it

cited Parents of Student W. v. Puyallup School Dist., 31 F.3d

1489, 1498 (9th Cir. 1994), and Johnson v. Bismarck Pub.

School Dist., 949 F.2d 1000, 1003-04 (8th Cir. 1991). In both

cases, the parents formally prevailed but the courts denied

attorneys’ fees.

As the court hinted, denial of fees would also be proper

under 20 U.S.C. § 1415(e)(4)(D) and (F) (1994). (A-13).

7

einen aati iia

Under (D), fees should be denied where the school district's

settlement offer is more favorable than the relief obtained.

The record reflects the school district's offer was more

favorabie than what Parent ultimately received. The District

previously offered everything ordered by the HRO, except the

assessment. In fact, it offered more, including $5000 for all

monetary claims and $3000 for attorneys’ fees. Parent got

none of this relief from the HRO. Under (F), fees should be

denied where the parent unreasonably protracts the final

resolution or the fees are excessive given the nature of the

proceedings. The proceedings were unreasonably protracted

and the fees here were excessive because no hearing was

necessary to get an independent assessment. Parent could

have requested and obtained an independent assessment at

any time, and the School District would have had to pay for it

unless it contested the assessment at a hearing. Minn. R.

3525.3300 D (1995); 34 C.F.R. § 300.503(b) (1995). Parent

never did request such an assessment. (A-32 & n. 4) Ruling

against Parent, the Eighth Circuit held, "Warner turned down

the School District's IDEA-complying settlement offer and

placed Eric in private school . . . at her own financial risk,

including the risk of paying her own attorneys’ fees to pursue

IDEA claims that ultimately failed." (A-12).

Other bases, not ruled on by the Eighth Circuit, also

support the denial of fees. An award of something Parent did

not seek and which the School District did not deny does not

support prevailing-party status. See e.g., Garland, 489 U.S. at

791 (party must get some relief sought); Parents of Student

W., 31 F.3d at 1498 (parents did not get any of eight types of

relief requested); Combs _v. School Dist. of Rockingham

County, 15 F.3d 357, 363 (4th Cir. 1994) (award of additional

therapy not previously requested did not make parent

prevailing party). Parent has also failed to establish a causal

connection between the relief obtained and the administrative

proceedings and that the relief would not have been provided

without the proceedings. See Payne v. Board of Educ.,

Cleveland City Schools, 88 F.3d 392, 399 (6th Cir. 1996);

Ss

DeGuido v. Pung, 920 F.2d 525, 528 (8th Cir. 1990). Where,

as here, the relief was not provided to remedy a legal violation

and was available without resorting to a hearing, the relief is

gratuitous or of de minimis benefit and does not entitle the

parent to fees. See Combs, 15 F.3d at 364; Urban by Urban

v. Jefferson County School Dist. R-1, 89 F.3d 720, 729 (10th

Cir. 1996) (parent denied all fees, though he received some

relief he sought, but did not receive placement at

neighborhood school). Because ample law supports the

Eighth Circuit's decision, the case is unworthy of review.

Il. This Case Presents No Issues of General Importance

Because the Law Upon Which Parent Relies Has Been

Amended.

The law upon which Parent relies has been amended.

Under current law, as amended, a similarly-situated parent

would not be entitled to any attorneys’ fees. Given the

change, this case presents a legal issue of significance only to

the parties and not worthy of review.

Effective August 1, 1995, after the commencement of the

due process hearing, the following law became applicable:

Within five business days after the request for a

hearing, or as directed by the hearing officer, the

objecting party shall provide the other party with a

brief written statement of particulars of the

objections, the reasons for the objection, and the

specific remedies sought.

1995 Minn. Laws ch. 3, art. 3, § 2 (codified at Minn. Stat. §

120.17, subd. 3b(e) (1996)) (emphasis added). Effective June

4, 1997, section 1415 of IDEA was amended as follows:

The procedures required by this section shall inc!ude--

(7) procedures that require the parent of a child with

a disability, or the attorney representing the child, to

provide notice (which shall remain confidential)--

(A) to the State educational agency or local

educational agency, as the case may be, in the complaint

filed under paragraph (6); and

(B) that shall include--

(i) the name of the child, the address of the residence

of the child, and the name of the school the child is

attending;

(ii) a description of the nature of the problem of the

child relating to such proposed initiation or change,

including facts relating to such problem; and

(iii) a proposed resolution of the problem to the

extent known and available to the parents at the time.

20 U.S.C.A. § 1415(b)(7)(1998 Supp.) (emphasis added).

More important, a provision was added requiring attorneys’

fees to be reduced if the attorney representing the parents did

not provide, among other things, "a proposed resolution of the

problem." The law states:

If the court finds that the "attorney representing the

parent did not provide to the school district the

appropriate information in the due process complaint

in accordance with subsection (b)(7). . . the court

Shall reduce, accordingly, the amount of the

attorneys’ fees awarded" under 20 U.S.C. § 1415.

20 US.C.A. § 1415(i1)(3)(F)(iv)(1998 Supp.) (emphasis

added). \

Although this law became applicable after Parent

commenced this attorneys’ fees action, the change emphasizes

the insignificance of the instant case. Congress intends that

fees should not be awarded automatically, even if the parent

prevails. Rather, parents will be expected to propose a

resolution. If they fail to do so and get some arguable benefit

10

not proposed, as in this case, attorneys’ fees will presumably

be reduced and may be denied altogether.

Given these amendments, the Petition should be denied.

Little purpose would be served by having this Court provide

guidance on an out-dated, less specific version of the law

which has no bearing on cases filed within the last year or

more and which has no future application. See Bradley v.

School Board of Richmond, 416 U.S. 696, 711 (1974).

Ill. Parent's Other Bases for Review Are Meritless.

A. The assessment ordered pursuant to Minnesota

law did not entitle parent to fees under federal

law.

The Eighth Circuit also denied fees relying on an analogy

to federal civil rights cases in which the court renders

judgment against plaintiff on federal claims but grants relief

under pendent state claims. In those cases, courts uniformly

deny attorneys’ fees under 42 U.S.C. § 1988. See National

Org. for Women v. Operation Rescue, 37 F.3d 646, 653-54

(D.C. Cir. 1994); Mateyko v. Felix, 924 F.2d 824, 828 (9th

Cir. 1990), cert. denied, 502 U.S. 814 (1991).

Despite Parent's objection, this analogy was properly

applied here. The Minnesota hearing officers were charged

with enforcing state law, as well as IDEA. (A-9). In ordering

an assessment, however, the HRO expressly relied on state

law, Minn. R. 3525.4000 (1995). (A-9 & n. 3). In addition,

the HRO rejected the IDEA claims. Thus, as the court noted,

this situation is much like cases in which the plaintiff prevails

on a related pendent state claim but loses on the federal claim

and cannot therefore recover fees under federal law.

Parent's contention that this analogy is inapposite because

she brought only one claim--a claim under IDEA (Petition at

4)--is contrary to the record. Parent relied heavily on state

law and claims. (See e.g., Complaint, { 8; Appellant's

Appendix Vol. I in Eighth Circuit at Ap-299-309). Her

11

Complaint admits alleging violations of Minnesota Statutes

§§ 120.17, 127.03, and Minnesota Rules in the administrative

proceedings. (Complaint, { 8). In arguing the

inappropriateness of Student's disability classification in the

administrative proceedings, Parent relied on Minnesota Rules

which define various disability categories. (See Appellant's

Appendix Vol. I in Eighth Circuit at Ap-369, 374, 376).

Now, however, Parent seems to argue the HRO made an

error of law when he issued his order relying on state law and

should have relied on federal law. Because she did not appeal

that order, she has not properly preserved this claim. That

order is final. 20 U.S.C. § 1415(e)(1)(1994); Minn. Stat. §

120.17, subd. 3b(h)(1994). (A-6). The HRO's legal

conclusions are binding. See Plough v. West Des Moines

Community School Dist., 70 F.3d 512, 515 & n. 6 (8th Cir.

1995); Yancy v. McDevitt, 802 F.2d 1025, 1028 (8th Cir.

1986). No reversible error exits where complainant, as here,

has invited the error by propounding law which she now

claims is inapplicable. See City of Springfield v. Kibbe, 480

U.S. 257, 258 (1987); Dillon v. Nissan Motor Co., Ltd., 986

F.2d 263, 270 (8th Cir. 1993).

The fact that an independent assessment might also have

been available under IDEA's implementing regulations, as

Parent and the dissent now argue, is irrelevant and does not

entitle Parent to fees under IDEA. The assessment was

ordered after Parent lost on her IDEA claims. "[W]here it is

clear that the claims that provide for attorneys’ fees had

nothing to do with plaintiff's success, Hensley v. Eckerhart

[461 U.S. 424 (1983)] requires that fees not be awarded on

the basis of those claims." Smith v. Robinson, 468 U.S. 992,

1009 & n. 12 (1984). Moreover, for the reasons stated above,

the HRO's legal conclusions cannot be rewritten now to be

premised on federal law simply because Parent deems it

expedient. To permit such, would render the finality of all

special education decisions in doubt.

As the Eighth Circuit noted, Minnesota law makes no

provision for attorneys’ fees in special education cases. (A-9).

12

Because the independent assessment order was based on state

law, the Eighth Circuit properly refused to award fees under

IDEA.

Finally, the analogy to pendent state claims is just that--

an analogy. Parent's lack of success on the merits of her

claims, as well as other grounds mentioned herein, amply

support the decision. The decision does not stand or fall on

the basis of this analogy. Thus, the Petition should be denied

as meritless.

B. The decision is not contrary to IDEA's intent.

Contrary to Parent's contention, the decision does not

"undermine the intent of IDEA as a remedial statute that

protects and vindicates the education rights of disabled

children" or discourage plaintiffs from asserting their IDEA

rights. (Petition at 4). In the proceedings below, which

Parent did not appeal, it was determined the School District

had provided Student with FAPE and had properly assessed

his disability. Accordingly, this case is not important to

protect Student's rights, let alone all disabled children.

Moreover, this case does not warrant this Court's attention

unless, of course, a parent who loses her federal claims is

nevertheless a "prevailing-party" because she obtained relief

under state law which was never sought from or denied by the

school district.

Where, as here, a student has been provided with FAPE,

parents should not be able to recover attorneys’ fees. Fairness

to students in real need of educational services demands that

this litigation stop now. Denying the Petition will further

IDEA's intent to ensure that school districts have sufficient

resources to provide FAPE to all disabled students, 20

U.S.C.A. § 1400(d)(1)(C) (1998 Supp.). It will also finally

end the ongoing waste of money needed to defend against

litigation intended to enrich one parent and a team of lawyers

to the disadvantage of all students.

13

CONCLUSION

For the foregoing reasons, the School District respectfully

requests that the Petition for Writ of Certiorari be denied.

Date:

July 13, 1998

Nancy L. Cameron

Assistant General Counsel

Independent School District No. 625

360 Colborne Street

Saint Paul, Minnesota 55102

(651) 293-5153

Counsel of Record for Respondent

INDEX TO RESPONDENT'S APPENDIX

Page

Minn. Stat. § 120.17, subd. 3b (1994) .......eceeeeeeeeens R. App. |

Minn. R. 3525.3300 D (1995)............crcecresersecesereseees R. App. 6

R. App.-1

aii aie)

i

Minnesota Statutes § 120.17 (1994):

ene ee

** *

Subd. 3b. Procedures for decisions. Every district shall

utilize at least the following procedures for decisions involving .

identification, assessment, and educational placement of children 7

with a disability:

(a) Parents and guardians shall receive pnior written notice

of

(1) any proposed formal educational assessment or

proposed denial of a formal educational assessment of their child;

(2) a proposed placement of their child in, transfer from or

to, or denial of placement in a special education program; or

(3) the proposed provision, addition, denial or removal of

special education services for their child;

(b) The distnct shall not proceed with the initial formal

assessment of a child, the initial placement of a child in a special

education program, or the initial provision of special education

services for a child without the prior written consent of the child's

parent or guardian. The refusal of a parent or guardian to consent

may be overridden by the decision in a hearing held pursuant to

clause (e) at the district's initiative;

(c) Parents and guardians shall have an opportunity to meet

with appropniate district staff in at least one conciliation conference

if they object to any proposal of which they are notified pursuant

to clause (a). The conciliation process shall not be used to deny

or delay a parent or guardian's right to a due process hearing. If

the parent or guardian refuses efforts by the district to conciliate

the dispute with the school district, the requirement of an

opportunity for conciliation shall be deemed to be satisfied;

(d) The commissioner shall establish a mediation process to

assist parents, school districts, or other parties to resolve disputes

R. App. |

arising out of the identification, assessment, or educational

placement of children with a disability. The mediation process __

must be offered as an informal alternative to the due process

hearing provided under clause (e), but must not be used to deny

or postpone the opportunity of a parent or guardian to obtain a

due process hearing.

(e) Parents, guardians, and the district shall have an

opportunity to obtain an impartial due process hearing initiated and

conducted by and in the school district responsible for assuring

that an appropriate program is provided in accordance with state

board rules, if the parent or guardian continues to object to:

(1) a proposed formal educational assessment or proposed

denial of a formal educational assessment of their child;

(2) the proposed placement of their child in, or transfer of

their child to a special education program;

(3) the proposed denial of placement of their child in a

special education program or the transfer of their child from a

special education program,

(4) the proposed provision or addition of special education

services for their child; or

(5) the proposed denial or removal of special education

services for their child.

At least five calendar days before the hearing, the objecting

party shall provide the other party with a brief written statement of

the objection and the reasons for the objection.

The hearing shall take place before an impartial hearing

officer mutually agreed to by the school board and the parent or

guardian. If the school board and the parent or guardian are

unable to agree on a hearing officer, the school board shall request

the commissioner to appoint a hearing officer. The hearing officer

shall not be a school board member or employee of the school

district where the child resides or of the child's school district of

residence, an employee of any other public agency involved in the

R. App. 2

education or care of the child, or any person with a personal or

professional interest which would conflict with the persons

objectivity at the hearing. A person who otherwise qualifies as a

hearing officer is not an employee of the district solely because the

person is paid by the district to serve as a hearing officer. If the

hearing officer requests an independent educational assessment of

a child, the cost of the assessment shall be at district expense. The

proceedings shall be recorded and preserved, at the expense of

the school district, pending ultimate disposition of the action.

(f) The decision of the hearing officer pursuant to clause (e)

shall be rendered not more than 45 calendar days from the date of

the receipt of the request for the hearing. A hearing officer may

grant specific extensions of time beyond the 45-day period at the

request of either party. The decision of the hearing officer shall be

binding on all parties unless appealed to the hearing review officer

by the parent, guardian, or the school board of the district where

the child resides pursuant to clause (g).

The local decision shall:

(1) be in writing;

(2) state the controlling facts upon which the decision is

made in sufficient detail to apprise the parties and the hearing

review Officer of the basis and reason for the decision;

(3) state whether the special education program or special

education services appropriate to the child's needs can be

reasonably provided within the resources available to the

responsible district or districts;

(4) state the amount and source of any additional district

expenditure necessary to implement the decision; and

(5) be based on the standards set forth in subdivision 3a and

the rules of the state board.

(g) Any local decision issued pursuant to clauses (e) and (f)

may be appealed to the hearing review officer within 30 Calendar

days of receipt of that written decision, by the parent, guardian, or

R. App. 3

the school board of the district responsible for assuring that an

appropriate program is provided in accordance with state board

tules.

If the decision is appealed, a written transcript of the hearing

shall be made by the school district and shall be accessible to the

parties involved within five calendar days of the filing of the

appeal. The hearing review officer shall issue a final independent

decision based on an impartial review of the local decision and the

entire record within 30 calendar days after the filing of the appeal.

The hearing review officer shall seek additional evidence if

necessary and may afford the parties an opportunity for written or

oral argument; provided any hearing held to seek additional

evidence shall be an impartial due process hearing but shall be

deemed not to be a contested case hearing for purposes of

chapter 14. The hearing review officer may grant specific

extensions of time beyond the 30-day period at the request of any

party.

The final decision shall:

(1) be in writing;

(2) include findings and conclusions; and

(3) be based upon the standards set forth in subdivision 3a

and4n the rules of the state board.

(h) The decision of the hearing review officer shall be final

unless appealed by the parent or guardian or school board to the

court of appeals. The judicial review shall be in accordance with

chapter 14.

(i) The commissioner of education shall select an individual

who has the qualifications enumerated in this paragraph to serve as

the hearing review officer:

(1) the individual must be knowledgeable and impartial;

(2) the individual must not have a personal interest in or

specific involvement with the student who is a party to the hearing;

R. App. 4

(3) the individual must not have been employed as an

administrator by the district that is a party to the hearing;

(4) the individual must not have been involved in the

selection of the administrators of the district that is a party to the

hearing;

(5) the individual must not have a personal, economic, or

professional interest in the outcome of the hearing other than the

proper administration of the federal and state laws, rules, and

policies;

(6) the individual must not have substantial involvement in

the development of a state or local policy or procedures that are

challenged in the appeal; and

(7) the individual is not a current employee or board

member of a Minnesota public school district, education district,

intermediate unit or regional education agency, the state

department of education, the state board of education, or a parent

advocacy organization or group.

(j) In all appeals, the parent or guardian of the pupil with a

disability or the district that is a party to the hearing may challenge

the impartiality or competence of the proposed hearing review

officer by applying to the state board of education.

(k) Pending the completion of proceedings pursuant to this

subdivision, unless the district and the parent or guardian of the

child agree otherwise, the child shall remain in the child's current

educational placement and shall not be denied initial admission to

school.

(1) The child's school district of residence, a resident

district, and providing district shall receive notice of and may be a

party to any hearings or appeals under this subdivision.

R. App. 5

Minnesota Rules (1995)

3525.3300 CONTENTS OF NOTICE.

Notices must be sufficiently detailed and precise to constitute

adequate notice for hearing of the proposed action and contain a

full explanation of the procedural safeguards available to parents

under parts 3525.0200 to 3525.4700. Notices must:

* * *

D. Inform the parents that they may:

(1) Obtain an independent assessment at their own

expense.

(2) Request from the district information about

where an independent assessment may be obtained.

(3) Obtain an independent assessment at public

expense if the parent disagrees with an assessment obtained by the

district. The district shall initiate conciliation and a due process

hearing if necessary when refusing a parent's request for an

independent assessment at public expense. If the hearing officer

determines that the district's assessment is appropriate, the parents

still have the nght to an independent assessment, but not at public

expense. When an independent evaluation is at public expense,

the criteria under which the evaluation is obtained, including the

location of the evaluation and the qualifications of the examiner,

must be the same as the criteria the district uses when it initiates an

evaluation.

R. App. 6