                                       PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 11-2410
                  _____________

        D.F., a minor, individually and by his
           parent and legal guardian A.C.,
                      Appellant

                          v.

      COLLINGSWOOD BOROUGH BOARD
       OF EDUCATION, a/k/a Collingswood
               Public Schools
               ____________

 APPEAL FROM THE UNITED STATES DISTRICT
  COURT FOR THE DISTRICT OF NEW JERSEY
      (D.C. Civ. Action No. 1-10-cv-00594)
     District Judge: Honorable Joseph E. Irenas
                   ____________

                Argued June 4, 2012
                 ______________

Before: SCIRICA, GREENAWAY, JR., and NYGAARD,
                  Circuit Judges.

        (Opinion Filed: September 12, 2012)
Jamie Epstein (argued)
1101 Route 70 West
Cherry Hill, NJ 08002
      Counsel for Appellant

Richard L. Goldstein
Walter F. Kawalec, III (argued)
Marshall, Dennehey, Warner,
Coleman & Goggin
200 Lake Drive East, Suite 300
Cherry Hill, NJ 08002
      Counsel for Appellee

John D. Rue
Rafael Rosario (argued)
White & Case
1155 Avenue of the Americas
New York, NY 10036

Ruth Deale Lowenkron
Education Law Center
60 Park Place, Suite 300
New York, NY 07102
      Counsel for Amici Curiae, Education Law Center, et
al.
                       _____________

                        OPINION
                     ______________

GREENAWAY, JR., Circuit Judge.




                              2
       Appellant D.F. was a five-year-old kindergartener
during the 2008-2009 school year, his first under the
supervision of Appellee Collingswood Borough Board of
Education (―Collingswood‖).        He had previously been
educated in the Camden school system, which had identified
him as a special needs student and developed an
Individualized Education Plan (―IEP‖) for him.
Collingswood adopted the Camden IEP in substantial part,
with the consent of D.F.‘s mother, A.C. In January 2009,
A.C. filed a due process petition alleging violation of D.F.‘s
rights under the Individuals with Disabilities in Education Act
(―IDEA‖). Sometime later, she filed a second due process
petition expanding the claims. D.F. and A.C. subsequently
moved out of state, at which point the New Jersey
Administrative Law Judge (―ALJ‖) dismissed the pending
due process petitions as moot. D.F. filed this suit in the
District Court challenging the ALJ‘s orders. The parties filed
cross-motions for summary judgment and the District Court
granted Collingswood‘s motion, thereby upholding the ALJ‘s
orders. D.F. timely appealed.

       We must now resolve three questions: (1) whether the
out-of-state move rendered all of D.F.‘s claims moot; (2) if
the claims are not moot, whether summary judgment was
nonetheless proper because D.F.‘s IDEA rights were not
violated; and (3) whether D.F. was a prevailing party for
purposes of attorneys‘ fees. We hold that the District Court
erred in determining that the claims were moot and in
entering summary judgment. It correctly found that D.F. was
not a prevailing party entitled to attorneys‘ fees. We
therefore affirm in part, reverse in part, and remand this case
to the District Court for further factual development.




                              3
                     I. BACKGROUND

A. 2008

       D.F., an African-American male with special
educational needs, was enrolled in an inclusion1 pre-school
class in the Camden City Public Schools for the 2007-2008
school year. There were fewer than ten students in the class,
supervised by four adults. According to the IEP generated in
Camden, he exhibited characteristics consistent with
Attention Deficit Hyperactivity Disorder (―ADHD‖) and
Oppositional Defiant Disorder (―ODD‖). (Appellant‘s App.
8.) Although his cognitive abilities were at or above grade
level, he had difficulty with visual-motor integration skills.
Generally speaking, he experienced problems with
hyperactivity, aggression, distractibility, and impulsivity. In
Camden, D.F. had experienced issues with throwing objects,
hitting peers, running away, and temper tantrums. Once a
Behavior Intervention Plan (―BIP‖) was created, his negative
behaviors began to diminish.

       The IEP required an extended school year program
(―ESY‖) of at least thirty days, in a self-contained2 behavioral
disabilities program with counseling services. This summer
program was intended to modify his aggressive and impulsive
behaviors before he entered a regular kindergarten with
support services in September 2008. The IEP specifically

1
  Inclusion classrooms educate special needs and typically
developing children together.
2
  Unlike inclusion classrooms, self-contained classrooms
educate only special needs children.




                               4
noted that D.F. would be at high risk for failure in a regular
kindergarten without supportive services.

        D.F. and his family moved to Collingswood, a suburb
of Camden, in September 2008 and enrolled D.F. in
Collingswood schools.3 The IEP team in Collingswood
essentially adopted the IEP developed in Camden. The team
consisted of a case manager, D.F.‘s regular education teacher,
his special education teacher, a psychologist, and A.C. A.C.
declined to have D.F. placed in the self-contained special
education kindergarten because his brother was in that class.
It is indisputable that D.F. was placed in a regular classroom,
with typically developing children and pull-out sessions for
speech and counseling. D.F. had no one-to-one aide or other
supportive services in that regular kindergarten classroom.

       Although the behavior plan from Camden remained
part of D.F.‘s IEP, it was not implemented in Collingswood,
and he experienced behavioral issues in the early part of the
school year. On November 19, 2008, A.C. requested that a
functional behavior assessment of D.F. be performed, in
hopes of addressing D.F.‘s behavioral issues. Collingswood
agreed. Philip Concors, a certified behavior analyst with
whom Collingswood frequently works, performed the
assessment.




3
  According to the 2010 census, the Borough of Collingswood
is approximately eighty-two percent white. U.S. Census
Bureau, 2010 Census Summary File 1.




                              5
B. Spring 2009

      On January 8, 2009, Collingswood began providing
D.F. with a one-to-one aide in the classroom.

       A.C., initially unrepresented by counsel, filed a due
process petition on January 21, 2009. She alleged that
Collingswood had placed D.F. in a regular classroom and had
failed to provide the one-to-one aide until January, in
violation of the IEP. She also alleged that he had been
subject to discipline without consideration of the fact that his
behavior was a manifestation of his disability. Finally, she
asserted that the IEP and behavior plan were incomplete
because they did not include specific target behaviors,
methods, and documentation processes, and because they
were not developed from the baseline of a behavior
assessment.      The petition sought: 1) an independent
psychiatric evaluation; 2) an independent behavioral
assessment and a positive behavior intervention plan designed
by a consultant who would oversee it; 3) compensatory
education for the period of time D.F. did not have a one-to-
one aide; 4) an ESY; and 5) a requirement that the IEP
include proper goals and objectives.

       By filing the petition, A.C. triggered the IDEA‘s ―stay-
put‖ requirement. Pursuant to 20 U.S.C. § 1415(j), the child
who is the subject of due process proceedings ―shall remain
in [his] then-current educational placement . . . until all such
proceedings have been completed.‖ Approximately a month
after the filing of the petition, Collingswood conducted an
IEP meeting at which it implemented a behavior plan based
on Concors‘ evaluation. The plan specifically approved the




                               6
use of physical restraints on D.F. A.C. refused to attend this
meeting, although she was part of the IEP team. She argued
that the stay-put requirement mandated continuation of the
old IEP until the ALJ held otherwise.

       In March 2009, Collingswood filed a motion to
dismiss the second claim in the petition, which sought an
independent psychiatric evaluation and an independent
behavioral assessment. Collingswood argued that A.C. had
not requested them before she filed the petition, as she was
required to do under New Jersey law. Collingswood also
claimed that it had already agreed to provide them. D.F.
argues to this Court that, although Collingswood has
repeatedly represented to the ALJ that it agreed to provide
these evaluations at its own expense, using the experts
provided by A.C., it stalled for five months. In June 2009, the
ALJ ordered that Collingswood pay for the evaluations.

       D.F. remained in the regular classroom, with an aide,
through April 2009.        There were numerous incidents
involving his behavior, including some in which he was
physically aggressive toward other students, his aide, and
other adults in the building. (Appellant‘s App. 64-69.)
Parents of other students in his class became upset with his
presence in the classroom and even organized online to
agitate for his removal from the classroom.

       Toward the close of the 2008-2009 school year, the
IEP team met again and proposed an out-of-district placement
for D.F. Collingswood sent A.C. a letter seeking her
authorization to send D.F.‘s records to several out-of-district
programs so that those programs could determine whether
they would accept him as a student. A.C. refused, invoking
her stay-put rights.




                              7
        Apparently as a result of her frustration with the use of
restraints against D.F. and his treatment in the classroom,
A.C. unilaterally decided to keep D.F. at home for the last six
weeks of the school year. D.F.‘s IEP required an ESY, and
Collingswood provided D.F. with tutoring in a vacant
classroom during that summer. It was A.C.‘s opinion that this
placement violated the IEP, which provided that ESY be in a
self-contained classroom. (Appellant‘s App. 80-81.)4

C. 2009-2010 Academic Year

        D.F. began the 2009 school year in a regular classroom
with a one-to-one aide. His behavior problems continued. In
late August, Collingswood filed for emergent relief, seeking a
change in D.F.‘s stay-put status so that it could officially
implement the behavior intervention plan that was designed at
the February 2009 IEP meeting and which had, arguably,
been in use unofficially in the spring of 2009. In the
alternative, Collingswood sought to place D.F. outside the
district and asked that the ALJ order A.C. to authorize the
release of D.F.‘s records for this purpose. The ALJ denied
this motion without prejudice, as Collingswood had failed to
include any facts relating to the current school year.

      In September 2009, D.F.‘s chosen expert, Dr. Kathleen
McCabe-Odri, completed her functional behavior assessment
and his second expert, Dr. Robertson Tucker, completed his
psychiatric evaluation. Dr. McCabe-Odri observed D.F. at

4
  Later, in September 2009, A.C. filed for compensatory
education for the hours of IEP-approved education lost during
the ESY. This motion was eventually denied as moot along
with the others.




                               8
home and in his classroom. She concluded that ―the overall
behavior system is severely inadequate in addressing [D.F.‘s]
behavioral and social challenges.‖ (Appellant‘s App. 141.)
She recommended particular behavior intervention strategies
and suggested that the Collingswood staff would benefit from
certain training. Finally, she concluded that restraints were
not recommended for D.F. (Id. at 143.)

        Dr. Tucker recommended a ―highly structured first
grade class which offers support services and a full-time one-
to-one aide providing behavior modification instead of
resorting to restraint.‖ (Id. at 133.) He also indicated that
restraints were contraindicated in most situations and that
D.F. should receive social skills training and counseling in
school.

        On October 29, Collingswood again sought emergent
relief, this time seeking only an out-of-district placement for
D.F. It based the request on a number of fall 2009 disruptive
incidents, in which D.F.‘s behavior escalated to the point that
he punched , scratched and hit teachers, hit other students, ran
out of classrooms, and ripped up other students‘ work. The
ALJ found that D.F‘s behavior placed him and students
around him at risk of harm and therefore ordered that D.F. be
placed on home instruction until a suitable placement in a
highly structured setting with behavioral supports was found.
The ALJ further ordered A.C. to cooperate in the process of
finding him an out-of-district placement.

       In early December, Collingswood informed A.C. that
The Archway School had accepted D.F. A.C. refused to send
D.F. to Archway without a new IEP and stated that she would
not cooperate in the development of a new IEP until ordered
by the ALJ to do so. D.F. was still on home instruction in




                               9
February 2010, when A.C. indicated at a hearing that she
would prefer that D.F. be placed at the Cherrywood School,
run by Dr. McCabe-Odri. Cherrywood was primarily a
school for autistic pre-schoolers, and the district argued that it
was not an appropriate placement.            Cherrywood staff
submitted an affidavit describing the Collingwood staff‘s tour
of Cherrywood, at which Dr. Plescia, head of special
education for Collingswood, allegedly referred to D.F. as ―a
predator,‖ ―the devil,‖ ―street smart,‖ and highly aggressive.‖
(Appellant‘s App. 193-94.)

       The parties failed to agree on a placement, and, on
April 1, 2010, the ALJ entered an order finding Archway to
be the appropriate placement and changing D.F.‘s stay-put to
place him there. (Id. at 203.) A.C. appealed and did not send
D.F. to Archway.

D. Conclusion of the Case Before the ALJ

       On July 7, 2010, D.F.‘s counsel advised Collingswood
that D.F. and A.C. had moved to Georgia and that they would
be withdrawing all claims except those for compensatory
education.

        On July 15, D.F. filed a second petition for due
process,5 nearly identical to the first except that it sought, as
its sole relief, compensatory education for ―the period of time
Collingswood failed to provide a free and appropriate
education in the least restrictive environment.‖ (Appellant‘s
App. 215.) This represented an expansion from the initial

5
 This petition was later referred to by the ALJ as a motion to
amend the original petition. See footnote 6, infra.




                               10
petition, which had sought compensatory education only for
the time period before the one-to-one aide was initially
provided. This petition also alleged that restraints had been
improperly used on D.F. Collingswood filed a Notice of
Insufficiency, alleging that D.F. had failed to plead specific
issues, relevant facts, and relief sought with regard to the
restraints. The ALJ entered an order dismissing the new
petition for insufficiency on July 27, the same day on which
he was made aware that D.F. had moved out of state.

       On August 4, the ALJ issued an order dismissing all
remaining claims and closing the case. (Appellant‘s App.
237-41.) D.F. had conceded that the move rendered moot all
the claims except those for compensatory education. The
ALJ, however, denied the motion to amend the petition to
expand the compensatory education claim, finding both
undue delay and mootness.6 The ALJ then dismissed both
pending petitions – one filed by D.F. and one by
Collingswood – as moot.




6
  D.F. had, in fact, filed a Motion to Amend in May 2009, but
the ALJ stated that the petitioner had delayed seeking
amendment of the claim for ―well over a year.‖ (Appellant‘s
App. 240.) Since May 2009 was less than six months after
the filing of the initial petition, the ALJ‘s holding appears to
refer instead to the second due process petition, filed in July
2010.




                              11
E. District Court Proceedings

      D.F. originally filed a complaint in the District Court
on February 3, 2010, appealing the November 6 order of the
ALJ that placed him on home instruction. The District Court
case proceeded in tandem with the case before the ALJ
throughout the spring and summer. After D.F. amended the
complaint several times, the parties filed cross-motions for
summary judgment.

        The District Court granted Collingswood‘s summary
judgment motion and entered judgment in its favor.
Engaging in plenary review of the ALJ‘s decision, while
giving ―due weight‖ to the ALJ‘s factual findings, the District
Court held that ―the present dispute ha[d] been rendered moot
by D.F.‘s move from New Jersey to Georgia.‖ D.F. v.
Collingswood Pub. Sch., 804 F. Supp. 2d 250, 255 (D.N.J.
2011). It noted that all compensatory education claims are
rendered moot by a child‘s move out of a school district.
However, several of the orders on appeal concerned the
appropriate placement for D.F., and one concerned use of
restraints against him. The Court found itself unable to award
relief if it held in D.F.‘s favor on these issues, particularly in
the form of compensatory education.

        With regard to the remaining order on appeal, the
August 4 dismissal for mootness, the District Court found that
it was also without power to award compensatory education
as relief. Because D.F. had voluntarily moved to Georgia,
that state had ―necessarily assumed the obligation to evaluate
D.F.‘s educational needs as they currently exist and provide
him with a FAPE and any necessary special education




                               12
services.‖ Id. In a footnote, the Court also held that ―D.F.‘s
claim for compensatory education for the period of time he
was not provided a one-to-one aide also fails on the merits
because Collingswood did not deny him a FAPE during that
period.‖ Id. at 256 n.6. Essentially, it found that the IEP
never required a one-to-one aide and that Collingswood acted
swiftly to remediate the situation once it was discovered. It
did not address the other denials of FAPE alleged.

      Finally, the Court declined to award attorneys‘ fees to
D.F. on the basis of prevailing party status. It found that there
was no causal connection between the filing of the petition
and Collingswood‘s provision of the independent
assessments, as D.F. had not properly requested these
assessments before filing for due process. Id. at 256-57.

       D.F. filed a timely notice of appeal.

  II. JURISDICTION AND STANDARD OF REVIEW

       Pursuant to the IDEA, 20 U.S.C. § 1415(i)(2), the
District Court had jurisdiction over the appeal from the state
administrative proceedings. We have jurisdiction over the
appeal pursuant to 28 U.S.C. § 1291.

       Summary judgment is appropriate ―where the
pleadings, depositions, answers to interrogatories, admissions,
and affidavits show there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter
of law.‖ Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d
212, 216 (3d Cir. 2010) (quoting Nicini v. Morra, 212 F.3d
798, 805-06 (3d Cir. 2000) (en banc) (citing Fed. R. Civ. P.




                               13
56(c))).7 In an IDEA case, our review of the District Court‘s
legal conclusions is de novo, Steven I. v. Cent. Bucks Sch.
Dist., 618 F.3d 411, 412 n.2 (3d Cir. 2010), and our review of
the District Court‘s factual findings is for clear error. L.E. v.
Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006).

       ―This court reviews the District Court's denial of
attorneys' fees for abuse of discretion. . . . However, if the
District Court denied the fees based on its conclusions on
questions of law, our review is plenary.‖ P.N. v. Clementon
Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006) (citation
omitted).

                       III. ANALYSIS

    A. Mootness

       D.F. argues that his move to Georgia did not render
moot his claims for compensatory education, as the District
Court determined.

       Compensatory education is a judicially-created remedy
that has received the imprimatur of this Court. Lester H. v.
Gilhool, 916 F.2d 865 (3d Cir. 1990). The IDEA grants a

7
  Fed. R. Civ. P. 56 was revised in 2010. The standard
previously set forth in subsection (c) is now codified as
subsection (a). The language of this subsection is unchanged,
except for ―one word — genuine ‗issue‘ bec[ame] genuine
‗dispute.‘‖ Fed. R. Civ. P. 56 advisory committee‘s note,
2010 amend.




                               14
district court reviewing an IDEA claim the authority to grant
whatever relief it ―determines is appropriate.‖ 20 U.S.C. §
1415(i)(2). The Supreme Court has held that if parents have
paid for a disabled child‘s education because the public
schools were failing to provide FAPE, reimbursement of this
tuition constitutes appropriate relief.       Sch. Comm. of
Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985).8 The
Court found that any other result would render ―the child‘s
right to a free appropriate public education, the parents‘ right
to participate fully in developing a proper IEP, and all of the
procedural safeguards . . . less than complete.‖ Id. Since this
could not have been Congress‘s intent, the Court was
confident that ―Congress meant to include retroactive
reimbursement to parents as an available remedy in a proper
case.‖ Id.

       In Miener ex rel. Miener v. State of Missouri, the
Eighth Circuit extended this rationale to countenance the
award of compensatory educational services, that is, those
educational services that a special needs student ought to have
received during the period of time that FAPE was not
provided. 800 F.2d 749 (8th Cir. 1986). As in the case of the
reimbursement remedy approved in Burlington, the Court
found that ―imposing liability for compensatory educational
services on the defendants ‗merely requires [them] to
8
  This case addressed the the Education of the Handicapped
Act (EHA), the predecessor statute to the IDEA. EHA
jurisprudence concerning appropriate remedies has, however,
been incorporated wholesale into IDEA jurisprudence. See,
e.g., Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712, 718 (3d
Cir. 2010) (addressing IDEA compensatory education claim
by citing Burlington‘s analysis of the EHA).




                              15
belatedly pay expenses that [they] should have paid all
along.‘‖ Id. at 753 (quoting Burlington, 471 U.S. at 370-71).
As for the policy goals of the IDEA, the Court was confident
―that Congress did not intend the child‘s entitlement to a free
education to turn upon her parent‘s ability to ‗front‘ its costs.‖
Id. at 753.

       We adopted these conclusions in Lester H. v. Gilhool,
916 F.2d at 872-73. We concluded ―that Congress, by
allowing the courts to fashion an appropriate remedy to cure
the deprivation of a child‘s right to a free appropriate public
education, did not intend to offer a remedy only to those
parents able to afford an alternative private education.‖ Id. at
873.

        Acknowledging that compensatory education was a
potentially valid remedy, the District Court nonetheless
determined that D.F.‘s claims were moot. 804 F. Supp. 2d at
255. Because the judicial power extends only to cases and
controversies., U.S. Const. art. III, § 2, a claim is moot if no
such case or controversy exists. ―[T]he requirement that an
action involve a live case or controversy extends through all
phases of litigation . . .‖ Cnty. of Morris v. Nationalist
Movement, 273 F.3d 527, 533 (3d Cir. 2001). Accordingly, if
―developments occur during the course of adjudication that
eliminate a plaintiff's personal stake in the outcome of a suit
or prevent a court from being able to grant the requested
relief, the case must be dismissed as moot.‖ Id. (quoting
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d
Cir. 1996)).

        Admittedly, ―[c]ase law in this Circuit addressing the
effect of moving out of a school district during the course of
litigation for compensatory education is spotty.‖ N.P. v. East




                               16
Orange Bd. of Educ., No. 06-5130, 2011 WL 463037, at *4
(D.N.J. Feb. 3, 2011). We have not squarely addressed the
question, and we certainly have not done so in the context of
an out-of-state move. We have, however, stated that
compensatory education is an equitable remedy that
compensates a special needs student ―for rights the district
already denied him.‖ Lester H., 916 F.2d at 872. Thus,
several District Courts within this Circuit have held that an
out-of-district move does not render claims for compensatory
education moot. N.P., 2011 WL 463037, at *5 (granting
compensatory education to student who had moved to
adjacent school district while explicitly limiting ruling to in-
state move situation); Neshaminy Sch. Dist. v. Karla B., No.
96-3865, 1997 WL 137197, at *5-*6 (E.D. Pa. Mar. 20, 1997)
(finding compensatory education claim not mooted by out-of-
district move). The Eighth Circuit also has held that an out-
of-district move does not moot a claim for compensatory
education. Indep. Sch. Dist. No. 284 v. A.C. ex rel. C.C., 258
F.3d 769, 774-75 (8th Cir. 2001).

        The District Court, like the ALJ, relied heavily on the
one District Court decision within the Third Circuit that holds
that a compensatory education claim is rendered moot by a
move out of state. In S.N. v. Old Bridge Twp. Bd. of Educ.,
No. 04-517, 2006 WL 3333138 (D.N.J. 2006), the court
dismissed S.N.‘s claim as moot. However, it focused on the
fact that S.N. sought ―prospective relief, which would be
impossible to grant.‖ Id. at *2. S.N. had originally sought
only a revised IEP, and only in response to the motion to
dismiss for mootness did he seek to amend his prayer for
relief to ask for reimbursement of the costs of hiring a life
coach. Id. The court did specifically address the question of
compensatory education, and it found that, given the move




                              17
out of state and the fact that S.N.‘s parents had not fronted
money for his education while he lived in New Jersey,
―Plaintiffs‘ own actions have made any relief, including an
award [of] compensatory education, impossible.‖ Id. at *4
(sic).

        S.N., an unpublished decision of the District Court, is
neither persuasive nor binding. Continuity of residence
cannot be prerequisite to the grant of compensatory
education. As the Neshaminy court noted, a rule that
rendered IDEA claims for compensatory education moot
upon a move out of district would allow ―a school district [to]
simply stop providing required services to a student with the
underlying motive of inducing this student to move from the
district, thus removing any future obligation under IDEA
which the district may owe to the student,‖ and thereby
frustrating the purpose of the IDEA. Neshaminy Sch. Dist.,
1997 WL 137197, at *6. We find this rationale indisputably
persuasive.

       The IDEA works because each school district bears the
obligation to educate special needs students, often at
substantial cost.     See Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 262 (3d Cir. 2007) (―It is
undisputed that the District is the local education agency
responsible for providing a FAPE to [the student].‖). To
comply with the IDEA, a school district no longer responsible
for educating a child must still be held responsible for its past
transgressions. Were we to uphold the District Court‘s ruling,
we would create an enormous loophole in that obligation and
thereby substantially weaken the IDEA‘s protections. We
therefore hold that a claim for compensatory education is not
rendered moot by an out-of-district move, even if that move
takes the child out of state.



                               18
        Ruling otherwise would particularly impact low-
income special needs students. Because compensatory
education is at issue only when tuition reimbursement is not,
it is implicated only where parents could not afford to ―front‖
the costs of a child‘s education. See Miener, 800 F.2d at 753.
Accordingly, low-income families, disproportionately likely
to have a disabled child, would be particularly burdened by a
holding that compensatory education cannot be obtained after
a move. See U.S. Dep‘t of Educ., Office of Special Educ.
And Rehab. Servs., 25th Annual Report to Cong. on the
Implementation of the Individuals with Disabilities Education
Act       Vol.      1,    32      (2003),     available      at
http://www2.ed.gov/about/reports/annual/osep/2003/25th-vol-
1-sec-1.pdf. We cannot reward school districts who fail to
provide FAPE to special education students until those
students move.

        The District Court asserted that, apparently because
D.F. moved out of state, Georgia ―has necessarily assumed
the obligation to evaluate D.F.‘s educational needs as they
currently exist and provide him with a FAPE and any
necessary special education services.‖ 804 F. Supp. 2d at
255. As a result, compensatory educational services are
―subsumed within the education he is currently receiving
from Georgia,‖ and the court can grant him no effective
relief. Id.

       This ―subsumption‖ theory is incompatible with the
very notion of compensatory education as a remedy based on
past harms and it is therefore not supported by our case law.9
9
  Further, we see no basis to distinguish between out-of-
district, but in-state, moves and out-of-state moves in the
IDEA or in case law. Any attempt to draw such a distinction



                              19
See Lester H., 916 F.2d at 872 (noting compensatory
education is a remedy for rights already denied to a special
needs student). We must therefore reject the contention
propounded by Collingswood at oral argument that
compensatory education would remain available to D.F. had
he transferred to a private school or begun home schooling,
but that his transfer to another public school district with its
own IDEA obligations renders his claim moot.

        Further, the District Court erred in concluding that
there was no compensatory education that Collingswood
could provide once D.F. lived in Georgia. One accepted form
of compensatory education relief is the establishment of a
fund to be spent on the child‘s education, which
Collingswood would certainly be able to provide if FAPE was
found to have been denied. See, e.g., Ferren C., 612 F.3d 712
(upholding compensatory education fund as appropriate under
IDEA); Heather D. v. Northampton Area Sch. Dist., 511 F.
Supp. 2d 549, 562 (E.D. Pa. 2007) (utilizing fund as
compensatory education remedy). Further, we have noted
that there is no ―case law from our sister circuits that supports
the argument that a court‘s power to grant equitable relief

would raise concerns with regard to the plaintiffs‘ rights to
interstate travel. See Saenz v. Roe, 526 U.S. 489, 498 (1999)
(―[T]he ‗constitutional right to travel from one State to
another‘ is firmly embedded in our jurisprudence.‖ (quoting
United States v. Guest, 383 U.S. 745, 757 (1966))). But see
N.P., 2011 WL 463037, at *5 (distinguishing case from S.N.
because N.P. ―moved to an adjacent school district, rather
than out of the state entirely‖).




                               20
under the IDEA is simply limited to monetary awards.‖
Ferren C., 612 F.3d at 719.

        Appropriate remedies under the IDEA are determined
on a case-by-case basis. ―In each case, a court will evaluate
the specific type of relief that is appropriate to ensure that a
student is fully compensated for a school district‘s past
violations of his or her rights under the IDEA and develop an
appropriate equitable award.‖ Id. at 720. The District Court
also could have ordered Collingswood to pay D.F.‘s new
district or to contract with a local provider in his new home in
order to provide tutoring, counseling, or other support
services. See Pihl v. Mass. Dep’t. of Educ., 9 F.3d 184, 188
n.8 (1st Cir. 1993) (noting that compensatory education can
take many forms, including tutoring and summer school). As
Collingswood conceded at oral argument, such inter-district
contracting is a regular part of the resolution of IDEA claims.

       Because the very purpose of the IDEA would be
undermined by a contrary holding, we find that the District
Court erred in asserting that D.F.‘s claims for compensatory
education were rendered moot when he moved to another
state. Of course, we do not intend to restrict the potential
forms of compensatory education to those discussed above.
Indeed, we encourage the District Court to consider any form
of compensatory education proposed.




                              21
B. Denial of FAPE

        Because we find that D.F.‘s claims were not rendered
moot by his move out of state, we turn next to
Collingswood‘s argument in the alternative, that D.F. is not
entitled to compensatory education because he experienced
no denial of FAPE.

       The IDEA mandates that all states receiving federal
education funding must provide FAPE for all disabled
children. Id. at 198. ―The right to a FAPE ensures that
students with special education needs receive the type of
education that will ‗prepare them for further education,
employment, and independent living.‘‖ Ferren C., 612 F.3d
at 717 (quoting 20 U.S.C. § 1400(d)(1)(A)). The IDEA also
requires that disabled children be provided that education in
the least restrictive environment (―LRE‖), that is, educated
alongside non-disabled children except when ―the nature or
severity of the disability of a child is such that education in
regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.‖ 20 U.S.C. §
1412(a)(5)(A).

       The IEP is the means of ensuring that each special
needs child receives FAPE:

      [A] school district that knows or should know
      that a child has an inappropriate [IEP] or is not
      receiving more than a de minimis educational
      benefit must correct the situation. . . . [I]f it fails
      to do so, a disabled child is entitled to
      compensatory education for a period equal to
      the period of deprivation, but excluding the time




                                22
      reasonably required for the school district to
      rectify the problem.

M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 397
(3d Cir. 1996). This is not ―a bad faith or egregious
circumstances standard.‖ Ridgewood Bd. of Educ. v. N.E. ex
rel. M.E., 172 F.3d 238, 249 (3d Cir. 1999), superseded by
statute on other grounds as recognized by P.P. v. West
Chester Area Sch. Dist., 585 F.3d 727 (3d Cir. 2009). Indeed,
a child‘s entitlement to FAPE is not ―abridged because the
[school] district's behavior did not rise to the level of
slothfulness or bad faith.‖ M.C., 81 F.3d at 397.

       The District Court found, in a footnote, that ―D.F.‘s
claim for compensatory education for the period of time he
was not provided a one-to-one aide also fails on the merits
because Collingswood did not deny him a FAPE during that
period.‖ 804 F. Supp. 2d. at 255 n.6. This conclusion was
supported with record evidence including the creation of the
September 4, 2009 IEP with A.C.‘s consent, the conducting
of the behavior assessment by Phillip Concors in November
2009, and the provision of the one-to-one aide in January.10
All of this showed, in the District Court‘s view, that
10
  The District Court, appropriately, engaged in ―modified de
novo‖ review of the ALJ‘s decision. 804 F. Supp. 2d at 254;
see D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir.
2010). ―Under this standard, a district court must give ‗due
weight‘ and deference to the findings in the administrative
proceedings.‖ Id. (citation omitted). However, the District
Court did not address the ALJ‘s highly relevant statement that
―both parties [agree] that the IEP‘s flawed.‖ (Appellant‘s
App. 282).




                             23
Collingswood ―acted promptly to attempt to resolve D.F.‘s
educational issues and meet his educational needs.‖ Id.
Although we note that parental consent to an IEP does not
mean that FAPE was provided, Ridgewood, 172 F.3d at 250,
we nonetheless do not find the District Court‘s conclusion to
this question of fact to be clearly erroneous.

        However, our inquiry cannot conclude there. D.F.‘s
original petition sought compensatory education only for the
period of time during which he was without a one-to-one
aide, a claim which the District Court rejected with the
explanation noted above. Nonetheless, at the time of the
ALJ‘s August 4, 2010 order, there were three other pending
motions that sought compensatory education for other alleged
violations of D.F.‘s right to FAPE. First, in his May 26, 2009
filing, D.F. sought to expand the original petition so that,
instead of addressing the period of time he was denied a one-
to-one aide, it would cover any denial of FAPE, presumably
for any reason, during the period of time from September
2008-January 2009. (Appellant‘s App. 270-71.) Second, on
September 16, 2009, D.F. moved for compensatory education
to remedy alleged violations of FAPE based on his summer
2009 ESY placement. (Id. at 77-86.) Third, on July 15,
2010, D.F. filed an additional due process petition seeking
compensatory education for the entire period of time D.F. had
not received FAPE in Collingswood, with specific reference
to improper discipline and use of restraints.11 (Id. at 214-15.)



11
  The period for which D.F. is potentially entitled to receive
compensatory education ended on July 1, 2010, when D.F.
moved out of Collingswood.




                              24
        The ALJ dismissed this last petition for insufficiency,
on the ground that it did not contain the necessary
information relating to the restraints claim. Then, in her
August 4, 2010 decision, in which she declared all the claims
to be moot, the ALJ specifically and separately denied
―petitioner‘s motion to amend to expand its request for
compensatory education.‖ 12 (Id. at 240.) As grounds for this
decision, she relied on S.N., wherein a request to amend the
claim for compensatory education was denied based on undue
delay and mootness, and she cited those same reasons in
denying D.F.‘s motion. She made no specific factual findings
regarding any of the claims for compensatory education.

       The District Court noted that the ALJ had denied the
request to expand the compensatory education claim based on
undue delay and mootness. 804 F. Supp. 2d at 256 n.5.
Relying upon mootness to dispose of the claims, though, the
District Court did not make any factual findings that related
to the claim for compensatory education for violations of
FAPE beyond the absence of a one-to-one aide during the
September 2008-January 2009 period, nor any related to the
summer 2009 compensatory education claim. Indeed, the
District Court‘s opinion suggests that D.F. sought only
―compensatory education for the period that he was not
provided with a one-to-one aide,‖ id. at 253, although D.F.‘s
cross-motion for summary judgment made clear that his
compensatory education claim was broader.

       Because the District Court did speak substantively on
the entirety of D.F.‘s claims for compensatory education, our
holding that these claims are not moot requires us to remand

12
     See footnote 6, supra.




                              25
this matter to the District Court for factual findings on all of
the alleged violations of FAPE. We note that the July 2010
petition was dismissed for insufficiency and thus the claims
found solely there are not affected by our reversal of the
District Court‘s mootness ruling. We further note that,
because D.F. had not presented any testimony before the ALJ
when the ALJ declared the claims to be moot, further
development of the record is likely to be necessary before
D.F.‘s claims for compensatory education can be properly
evaluated.

C. Attorneys‘ Fees

        D.F. seeks attorneys‘ fees on the ground that the ALJ‘s
order mandating that Collingswood provide the independent
psychiatric evaluation and independent behavior analysis
render him a prevailing party. The IDEA provides that a
district court may, in its discretion, award ―reasonable
attorneys‘ fees‖ to a prevailing party.             20 U.S.C.
§1415(i)(3)(B)(i)(I). Generally speaking, 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.‖ J.O. ex rel. C.O. v. Orange Twp. Bd. of Educ.,
287 F.3d 267, 271 (3d Cir. 2002) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). We determine whether
a party is a prevailing party using a two-pronged test: ―First,
‗whether plaintiffs achieved relief,‘ and second, ‗whether
there is a causal connection between the litigation and the
relief from the defendant.‘‖ Id. (quoting Wheeler v. Towanda
Area Sch. Dist., 950 F.2d 128, 131 (3d Cir. 1991)).

       To satisfy the first prong, the relief obtained need not
be all of the relief requested, nor must the plaintiff ultimately
win the case; rather, the plaintiff must merely secure ―some of



                               26
the benefit sought in the lawsuit.‖ Id. (quoting Wheeler, 950
F.2d at 131). To satisfy the second prong, demonstrating
causation, a plaintiff must show that litigation ―was a material
contributing factor in bringing about the events that resulted
in obtaining the desired relief.‖ Wheeler, 950 F.2d at 132
(citation omitted). Alternatively, the plaintiff can prevail on a
catalyst theory, whereby ―even though the litigation did not
result in a favorable judgment, the pressure of the lawsuit was
a material contributing factor in bringing about extrajudicial
relief.‖ Id.

        The District Court found that D.F. could not
demonstrate causation, and so it did not engage in any
analysis as to whether he had succeeded on a significant
issue. It grounded its holding on the fact that A.C. had failed
to make known to Collingswood her desire to have the
independent evaluations performed before she filed for due
process. New Jersey mandates that ―[i]f a parent seeks an
independent evaluation in an area not assessed as part of an
initial evaluation or a reevaluation, the school district shall
first have the opportunity to conduct the requested
evaluation.‖ N.J. Admin. Code § 6A:14-2.5(c)(1). The
District Court found that Collingswood had not been given
this opportunity; moreover, record evidence showed that
Collingswood had been willing to provide the independent
evaluations from the time the due process petition was filed.
As a result, the litigation could not be said to have caused the
result, and D.F. could not be a prevailing party entitled to
attorneys‘ fees.

      D.F. asserts before this Court that the petition was filed
in January and Collingswood agreed in writing in early
February to provide the evaluations, but that the ALJ
nonetheless felt the need to issue an order on June 22 ordering



                               27
Collingswood to provide the evaluations at its expense. D.F.
therefore argues that Collingswood delayed and obstructed
provision of the evaluations, as there would have been no
need to issue an order in June if Collingswood had complied
in a timely fashion. However, there is evidence in the record
that A.C. did not provide the names of the experts she had
selected until June. Collingswood apparently objected to
their qualifications, leading the ALJ to issue the order.

        Thus, we cannot find that the District Court abused its
discretion in determining that the litigation did not cause
Collingswood to agree to provide the evaluations.
Collingswood had agreed from the outset of the litigation to
provide them and indeed, might have provided them without
litigation if D.F. had fully complied with New Jersey
regulations in requesting the evaluations.

                      IV. CONCLUSION

       For the reasons set forth above, we will affirm the
decision of the District Court in part, vacate in part, and
remand for further proceedings.




                              28
SCIRICA, Circuit Judge, concurring.

       I agree with the Court’s disposition of this case.

        This case presents an unfortunate situation. D.F. had
significant     special     educational     needs     requiring
accommodation and presenting a significant challenge to his
inclusion in a general education classroom. Apparently, a
contentious relationship developed between A.C.—D.F.’s
mother—and school officials, impeding cooperation and
turning the question of the proper education for D.F. into a
prolonged litigious struggle involving dueling experts. These
circumstances put D.F.’s teachers into a difficult position,
caught between their legal duties and responsibilities to D.F.,
their responsibility to safeguard other students,1 and the legal
obligations imposed in the course of the due process
proceedings, particularly the stay-put requirement triggered
under 20 U.S.C. § 1415(j).

       I read the relevant course of events as follows. At
D.F.’s initial IEP meeting in fall 2008 when D.F. transferred
into Collingswood from Camden, A.C. requested that D.F.
not be placed in the small-class special education
kindergarten classroom, as recommended by his Camden IEP,
because his brother was in that class; the school accordingly
placed D.F. into a regular education classroom. When it
became apparent that the placement was inadequate,

1
  As the Court notes, by fall 2009 D.F.’s actions, including
repeated physical attacks on students and teachers, posed a
serious risk of harm to himself and others.



                               1
Collingswood agreed to A.C.’s request that a functional
behavior assessment be performed and began to provide a
one-to-one classroom aide prior to A.C.’s filing a due process
petition on January 21, 2009. The petition triggered the stay-
put requirement. The school developed an additional IEP to
accommodate D.F., but A.C. declined to participate.2
Meanwhile, D.F.’s behavior continued to disrupt classes
significantly throughout spring 2009. At the end of the
school year, the school district proposed an out-of-district
placement for D.F., but A.C. insisted on her son’s stay-put
rights. In August, the school district filed a motion for
emergent relief to modify the stay-put order so that it could
implement the February 2009 IEP or seek an alternative
placement for D.F. A.C. opposed this motion, and the ALJ
denied the district’s request without prejudice. After the
events in fall 2009, Collingswood again filed for emergent
relief, seeking only placement outside the district. The ALJ
granted the motion, placing D.F. on home instruction, and

2
  As the Court states, this IEP “specifically approved the use
of physical restraints on D.F.” The February 26, 2009 IEP
called for the use of “district-approved Crisis
Prevention/Intervention (CP/I) techniques” in the event that
D.F. “is presenting a significant and immediate risk of injury
to self or others.” (Appellant’s App. 62-63). Among the
possible interventions were various “Personal Emergency
Interventions” that evidently involved school personnel
holding D.F. until he displayed safe behavior. The record
provides only two pages of what was apparently a twelve-
page IEP.



                              2
ordered that A.C. cooperate with finding a placement. D.F.
was accepted to the Archway School, but A.C. declined to
allow his transfer there. The ALJ subsequently found
Archway to be the appropriate placement. A.C. appealed and
did not send D.F. to Archway; she then moved to Georgia,
mooting all relief except, as we now hold, the compensatory
education claim.

       I agree with the Court that resolution of whether D.F.
received FAPE during the relevant time period is a question
for the District Court in the first instance. I also agree that
more fact-finding may be warranted.




                              3
