                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0713n.06
                            Filed: October 2, 2006

                                           No. 05-2314

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JAMES TOMPKINS, on behalf of his son A.T.,               )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
LOU ANN TOMPKINS, on behalf of her son A.T.,             )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellant,                              )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF MICHIGAN
                                                         )
TROY SCHOOL DISTRICT,                                    )                          OPINION
                                                         )
       Defendant-Appellee,                               )
                                                         )
TROY SCHOOL            DISTRICT       BOARD       OF     )
EDUCATION,                                               )
                                                         )
       Defendant-Appellee.                               )




       BEFORE:         McKEAGUE and COOK, Circuit Judges; and WILHOIT, District
                       Judge.*

       McKEAGUE, Circuit Judge. Plaintiffs-appellants appeal the order of the district court

denying their petition for the award of attorneys’ fees arising from the parties’ dispute over an




       *
        Honorable Henry R.Wilhoit, Jr., Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 05-2314
Tompkins v. Troy Sch. Dist.

appropriate individualized education plan for plaintiffs’ minor child. For the reasons that follow,

we affirm the district court.

                                        I. BACKGROUND

       In August 2004, after a four-year dispute, James and Lou Ann Tompkins (the “Parents”),

parents of a disabled child, initiated special educational due process proceedings, claiming that their

son had been denied the free and appropriate public education to which he is entitled under the

Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485 (“IDEA”). The Parents

contended that the Troy School District (the “District”) did not provide their son, adopted from a

Russian orphanage, with an appropriately balanced education geared to his specific speech, language,

educational, social, and emotional needs.

       In the months prior to the formal due process hearing provided for by 34 C.F.R. §

300.507(a)(1), the parties engaged in extensive negotiations over appropriate educational services

for the child, consisting of several rejected offers and counteroffers. The negotiations eventually

resulted in a January 11, 2005, offer of settlement by the District proposing substantially enhanced

educational services that satisfied the Parents’ demands. Along with nine numbered paragraphs

delineating the proposed educational services, the offer included a provision that the District would

not reimburse the Parents’ attorneys’ fees:

       [T]he District cannot agree to reimburse the Parents’ attorney fees as requested in
       your most recent settlement offer. As previously noted, if the Parents had
       communicated what programs and services they specifically wanted for their child
       . . . , it is likely that the District would have agreed to the same. . . . Thus, while the
       District remains interested in resolving this matter, it cannot offer to reimburse the
       Parents’ attorney fees.


                                                  -2-
No. 05-2314
Tompkins v. Troy Sch. Dist.

Letter of January 11, 2005, at 3.

        In February of 2005, the Parents filed a motion with the local hearing officer (“HO”), Jason

Kolkema, seeking entry of judgment “adopting and incorporating” the terms in paragraphs 1-9 of the

District’s offer of settlement and dismissing the scheduled due process hearing.1 A hearing on this

motion took place on February 23, 2005, via teleconference. Present were both attorneys for the

Parents and the attorney for the District; the mother was also present for most of the conference. At

the hearing, the Parents’ counsel approved of the individualized educational plan that the District

had offered, but would not agree to the waiver of attorneys’ fees. The District refused to “parse” the

offer, maintaining that it could either be accepted in its entirety or rejected, in which case the parties

would proceed with the due process hearing as scheduled.

        Concluding that the parties had reached consensus with respect to the “substantive” part of

the offer – educational services for the child – the HO decided to leave the “procedural” issue of

attorneys’ fees for resolution in federal court. Both parties expressed their intention to contest the

agreement in court: the Parents to seek attorneys’ fees, and the District to repudiate the agreement

if the Parents would not accept the offer in its entirety. With the expectation that both parties would

contest the order, the HO entered the following Order of Dismissal on March 10, 2005:

        This matter having come before this Hearing Officer on the Petitioners’ Motion for
        Entry of Judgment; having considered the arguments presented by the parties; and
        having received the attached January 11, 2005 offer of settlement which is


        1
         Thus, the Parents’ motion sought a judgment approving the terms of an offer they had not
signed. The motion also specifically requested the adoption of paragraphs 1-9 (proposing
educational services) only, not the entire offer (which included the District’s above-quoted refusal
to pay attorneys’ fees).

                                                  -3-
No. 05-2314
Tompkins v. Troy Sch. Dist.

        incorporated by reference; now therefore IT IS HEREBY ORDERED that for the
        reasons set forth in the record on February 23, 2005, this case is DISMISSED.

The District’s offer of settlement of January 11, 2005, was attached to the Order. None of the parties

appealed the order itself.

        The question of attorneys’ fees resurfaced three weeks later, when on March 14, 2005, the

Parents requested by letter that the District reimburse their attorneys’ fees, which by that time were

in excess of $36,000. The District did not respond, and the Parents brought a petition in the district

court to recover their attorneys’ fees.

        The district court denied the Parents’ petition. The court reasoned that although the Parents,

by entering into a valid settlement agreement, achieved the “prevailing party” status necessary for

statutory entitlement to attorneys’ fees, they simultaneously waived their right to such fees, because

the HO’s order incorporated the entire offer of the District, which expressly excluded any

responsibility of the District for the Parents’ attorneys’ fees. The Parents bring this appeal to contest

the district court’s denial of the petition for an award of attorneys’ fees.

                                           II. ANALYSIS

        A. Standard of Review

        The standard of review for actions under the IDEA is “a modified de novo review.” Doe v.

Bd. of Educ., 9 F.3d 455, 458 (6th Cir. 1993). Under this standard, “a district court is required to

make findings of fact based on a preponderance of the evidence contained in the complete record,

while giving some deference to the fact findings of the administrative proceedings.” Knable v.

Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir. 2001). An appellate court, “in turn, applies a


                                                  -4-
No. 05-2314
Tompkins v. Troy Sch. Dist.

clearly erroneous standard of review to the district court’s findings of fact, and a de novo standard

of review to its conclusions of law.” Id. “An award of costs to a prevailing party . . . is considered

under an abuse of discretion standard.” Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 850

(6th Cir. 2004).

        B. Statutory Requirements for an Award of Attorneys’ Fees

        The Parents claim a right to attorneys’ fees under the IDEA, which provides, “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 a prevailing party who is the parent of a child with a disability . . . .” 20

U.S.C. § 1415(i)(3)(B)(I). A “prevailing party” is one who “succeed[s] 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, 278-79 (1st Cir.

1978)).1

        The district court found that the Parents “prevailed on significant issues through the

settlement agreement that granted the substantive relief that they sought in the case.” James T. &

Lou Ann T. v. Troy Sch. Dist., 407 F. Supp. 2d 827, 831 (E.D. Mich. 2005). This finding is

uncontested on appeal.




        1
         Hensley addressed an attorneys’ fees claim under the Civil Rights Attorney’s Fees Award
Act of 1976, 42 U.S.C. § 1988. However, as this court held in Chambers v. Ohio Dep’t of Human
Servs., 273 F.3d 690, 693 n.1 (6th Cir. 2001) (citing Buckhannon Bd. v. W. Va. Dep’t of Health &
Human Res., 532 U.S. 598, 603 n.4 (2001)), “all statutes – including § 1988 – that authorize
attorney’s fees to the ‘prevailing party’ are to be treated consistently.”

                                                  -5-
No. 05-2314
Tompkins v. Troy Sch. Dist.

       Such success alone, however, is not enough. The term “prevailing party” also requires that

there be “a court-ordered ‘change [in] the legal relationship between [the plaintiff] and the

defendant.’” Buckhannon Bd. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001)

(emphasis added) (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792

(1989)). Both judgments on the merits and “settlement agreements enforced through a consent

decree” qualify as “court-ordered” changes with “the necessary judicial imprimatur.” Id. at 604, 605.

       Thus, for the Parents to be eligible for an award of attorneys’ fees as “prevailing parties”

under the IDEA, they must have (1) succeeded on a significant issue, and (2) this success must be

embodied in either a judgment on the merits or in a settlement agreement enforced through a consent

decree (i.e., an agreement with “the necessary judicial imprimatur”). The first requirement is

undisputed on appeal. Regarding the second requirement, the district court held that the HO

“imposed the obligations contained in the settlement offer” through his order and that the Parents

therefore qualified as prevailing parties.

       Though this court has not addressed the question of what qualifies as a “consent decree”

under Buckhannon, other circuits have. The Fourth Circuit, for example, has held that “an order

containing an agreement reached by the parties may be functionally a consent decree for purposes

of the inquiry to which Buckhannon directs us” where “the obligation to comply with [the

settlement’s] terms is ‘made part of the order of dismissal – either by separate provision (such as a

provision “retaining jurisdiction” over the settlement agreement) or by incorporating the terms of

the settlement agreement in the order.’” Smyth v. Rivero, 282 F.3d 268, 280-81 (4th Cir. 2002)

(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994)).

                                                -6-
No. 05-2314
Tompkins v. Troy Sch. Dist.

        In A.R. v. New York City Dep’t of Educ., 407 F.3d 65 (2d Cir. 2005), the Second Circuit

applied Buckhannon and the “judicial imprimatur” requirement to a hearing officer’s decision in an

IDEA proceeding. The A.R. court held that although the hearing officer who rendered the decision

was not a judge, “an []HO’s decision on the merits in an IDEA proceeding does constitute

‘administrative imprimatur.’ Although not ‘judicial,’ such an order changes the legal relationship

between the parties: Its terms are enforceable, if not by the [L]HO itself, then by a court, including

through an action under 42 U.S.C. § 1983.” Id. at 76.

        Arguably, under the Second and Fourth Circuits’ reasoning, the HO’s order in this case lends

sufficient “judicial imprimatur,” because it incorporates the terms of the District’s offer of settlement

and because, though the HO is only an administrative officer, the terms of an incorporated agreement

are potentially enforceable by a court. However, this court need not decide in this case whether to

adopt the reasoning of the Second and Fourth Circuits, or whether under the particular facts of this

case the HO’s order was sufficient under Smyth and A.R. Even assuming, without deciding, that the

parties had an agreement with sufficient judicial imprimatur to render the Parents the prevailing

party, the Parents’ petition still fails due to their valid waiver, as explained below.

        C. Waiver of Attorneys’ Fees

        In actions brought under the IDEA, “Sixth Circuit case law requires that a district court award

attorney fees to a prevailing party where no special circumstances militate against such an award.”

Wikol v. Birmingham Pub. Sch. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004) (citing Berger v. City

of Mayfield Heights, 265 F.3d 399, 406 (6th Cir. 2001)). Special circumstances are to be “analyzed



                                                  -7-
No. 05-2314
Tompkins v. Troy Sch. Dist.

on a case-by-case basis.” Id. Clearly, the “special circumstance” in this case is the explicit

disclaimer in the District’s offer of any responsibility for the Parents’ attorneys’ fees.

        The Supreme Court explained in Evans v. Jeff D., 475 U.S. 717, 730 (1986), that statutory

provision for attorneys’ fees “d[oes] not prevent the party from waiving this eligibility” for attorneys’

fees. As the Court held, “[t]he text of the Fees Act[2] provides no support for the proposition that

Congress intended to ban all fee waivers offered in connection with substantial relief on the merits.”

Id. Assuming that the Parents are the “prevailing party,” under the circumstances of this case the

district court could not have awarded attorneys’ fees to the Parents. As the district court correctly

found, the Parents’ actions in the proceedings before the HO effectively waived their right to

payment of attorneys’ fees by the District.

        The Parents dispute this finding, arguing that they did not accept the provision in the

District’s offer of settlement excluding payment of attorneys’ fees. The basis of their claim that they

“prevailed” is the proposal of enhanced educational services for their son in the District’s offer of

settlement. Clearly, the proposed educational services in the offer of settlement were acceptable to

the Parents, while the unambiguous provision in the same offer that the District would not pay the

Parents’ attorneys’ fees was not.

        The avenues properly open to the Parents and the HO in response to the District’s settlement

offer were explained succinctly by the Supreme Court in Evans, 475 U.S. at 727:

        The options available to the District Court [here, the HO] were essentially the same
        as those available to respondents: it could have accepted the proposed settlement;


        2
            The Civil Rights Attorney’s Fees Award Act, the same statute addressed in Buckhannon.

                                                  -8-
No. 05-2314
Tompkins v. Troy Sch. Dist.

        it could have rejected the proposal and postponed the trial to see if a different
        settlement could be achieved; or it could have decided to try the case. The District
        Court could not enforce the settlement on the merits and award attorney’s fees [which
        were expressly refused by the offer of settlement].

Likewise, in this case, the HO and the Parents could have accepted the settlement as offered;

continued negotiations; or proceeded to the scheduled due process hearing. As the Supreme Court

observed in Evans, the Parents did not have the option of accepting a portion of the offer, foregoing

the due process hearing, and then seeking to have a different portion of the offer materially altered

in their favor by a court.

        Instead of pursuing one of the three available options, the Parents moved for, and the HO

granted, an order approving the offer of settlement, but with objections by both parties.3 While the

District objected to the entry of any order when a complete agreement had not been reached, both

the Parents and the HO simply attempted to defer the matter of attorneys’ fees for subsequent

adjudication in federal court.

        The Parents now argue that “[t]he parties did not have a settlement agreement,” because “the

parents clearly and consistently communicated their opposition to waiving their right to fees and

their intent to pursue further litigation for reimbursement.” Appellant’s Brief at 18. In essence, the



        3
         More specifically, the HO decided to include the entire offer in the record, enter an order
dismissing the due process hearing, and have both parties “state your objections in the record,” so
that “[b]oth parties can appeal” the terms of the settlement. 2/23/05 Teleconference Transcript at
26. The HO’s decision was based in the main on the importance of “judicial economy.” Id. at 16.
The very fact that this case is now before this court on appeal makes clear that judicial economy is
not served by entering an order expected to be contested immediately by both parties, merely in order
to avoid holding the administrative hearing provided for in 34 C.F.R. § 300.507(a)(1) and Mich.
Admin. Code r. 340.1724.

                                                -9-
No. 05-2314
Tompkins v. Troy Sch. Dist.

Parents’ position on appeal is that there was no settlement agreement where attorneys’ fees are

concerned, but that there was a settlement agreement regarding the educational programming for

their son proposed in paragraphs 1-9 of the District’s offer of settlement. This ignores a basic

principle of contract law, namely that a party to an agreement is “constrained to accept the burdens

as well as the benefits” of the agreement. Warblow v. Kroger Co., 401 N.W.2d 361, 363 (Mich. Ct.

App. 1986); see also In re Ralston, 401 F.2d 293, 295 (6th Cir. 1968).

       It is this constraint that the Parents are attempting to avoid here. During the teleconference,

the District reiterated several times that “the district’s offer does not include any reimbursement for

attorneys fees.”4 2/23/05 Teleconference Transcript at 18. The Parents contend on appeal that “[b]y

incorporating the letter, [the HO] provided the judicial imprimatur to allow the parents to pursue

reimbursement.” Appellant’s Brief at 13. Under basic contract principles, such an outcome is

simply impossible. Either there was no agreement at all, in which case the Parents are not the

prevailing party, or there was an agreement, and it included both those terms that benefitted the

Parents and those that benefitted the District.

       The Parents cannot legitimately claim that no agreement was reached at all. In their argument

for attorneys’ fees, they contend not only that the terms describing educational services in the

District’s offer of settlement are enforceable, but that those terms provide a significant improvement

over previous services. These contentions are offered in support of their claim that they are


       4
         The District’s offer is simply not susceptible of the construction the Parents attempt to give
it on appeal. They contend that “[t]he district’s letter . . . does not contain such a stipulation that
the parents waive their rights to fees. It merely suggests the District cannot agree to offer fees.”
Appellant’s Brief at 21.

                                                  - 10 -
No. 05-2314
Tompkins v. Troy Sch. Dist.

“prevailing parties” under 20 U.S.C. § 1415(i)(3)(B)(I). Thus, the Parents’ entire claim for

attorneys’ fees is based on the theory that the District’s offer of settlement was accepted, is

enforceable, and represents significant gains for the Parents over previous services the District

offered their son. Simultaneously, they argue that a provision of the same offer stating that the

District would not pay attorneys’ fees is not enforceable. They cannot have it both ways – they

entered into an enforceable contract, and they are bound by all of its terms.

        D. Public Policy

        The Parents argue lastly that public policy requires that the District pay their attorneys’ fees

because “[l]imiting the availability of reimbursement of attorney fees would severely abridge these

rights” to educational accommodations for disabled children, “and the opportunity for parents to

advocate for their children.” Appellant’s Brief at 24. However, as the Supreme Court noted in the

Civil Rights context, Congress did not “intend[] to ban all fee waivers offered in connection with

substantial relief on the merits.” Evans, 475 U.S. at 730. While it is true that eliminating the

availability of attorneys’ fees awards altogether might well limit parents’ ability to advocate for

learning disabled children, they point to no public policy which forbids a voluntary waiver of

attorneys’ fees in IDEA cases.

                                         III. CONCLUSION

        The Parents’ acceptance of the District’s offer of enhanced educational programming

required that they accept the District’s offer in its entirety. The district court correctly found that the

parties had reached a settlement agreement which included both the enhanced educational program



                                                  - 11 -
No. 05-2314
Tompkins v. Troy Sch. Dist.

for the Parents’ son and the District’s refusal to pay attorneys’ fees. Accordingly, the district court’s

denial of the Parents’ petition for attorneys’ fees was proper under the law and is AFFIRMED.




                                                 - 12 -
