                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-2000

Holmes v. Millcreek Twp School
Precedential or Non-Precedential:

Docket 98-3428




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Filed February 24, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-3428/3482

REBECCA H. HOLMES, a minor by parents and natural
guardians ED HOLMES and DEBBY HOLMES, his wife;
ED HOLMES; DEBBY HOLMES, in their own right

v.

MILLCREEK TOWNSHIP SCHOOL DISTRICT,

       Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 95-cv-00214E)
District Judge: Honorable Maurice B. Cohill, Jr.

Argued March 23, 1999

Before GREENBERG and ROTH, Circuit Judge
POLLAK,1 District Judge

(Opinion filed February 24, 2000)

Antoinette Szarek, Esquire (Argued)
511 Orchard Way
Lansdowne, PA 19050

 Attorney for Appellees



_________________________________________________________________
1. Honorable Louis H. Pollak, United States District Court Judge for the
Eastern District of Pennsylvania, sitting by designation.
       Joanna K. Budde, Esquire (Argued)
       Patricia K. Smith, Esquire
       Knox, McLaughlin, Gornall
        & Sennett
       120 West 10th Street
       Erie, PA 16501

        Attorneys for Appellant

OPINION OF THE COURT

ROTH, Circuit Judge.

Appellees Ed and Debbie Holmes brought an action
under the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. SS 1400 et seq ., to recover attorney's
fees and costs. These fees and costs were incurred by the
Holmeses in challenging the re-evaluation of their daughter,
Rebecca Holmes, which was to be done by the Millcreek
Township School ("School District"), and in protesting the
qualifications of a sign language interpreter whom the
School District had assigned to work with their daughter.
In addition, the Holmeses sued for reimbursement by the
School District of the costs of the 1994 Independent
Educational Evaluation ("IEE"), which the Holmeses had
had performed on Rebecca. After a bench trial, the District
Court held that the Holmeses were entitled to attorney's
fees and certain costs associated with the 1994 IEE and
with the Holmeses' challenge to the interpreter's
qualifications.

The School District appealed the award of fees and costs
to the Holmeses. We will reverse the District Court's
conclusion that the Holmeses were entitled to
reimbursement for the 1994 IEE, but we will affirm their
entitlement to an award of attorney's fees and costs.
Because we find the amount of the award excessive,
however, we will reduce it.

I. Factual Background

Rebecca H. Holmes is severely deaf. In the fall of 1992, as
she entered the 5th grade, Rebecca transferred to the

                                  2
Millcreek School District and was assigned to the School
District's Belle Valley Elementary School.

Because of Rebecca's disability, School District officials
made arrangements for her to undergo a comprehensive
psycho-educational evaluation. The purpose of the
evaluation was to assist the School District in creating a
suitable Individualized Educational Plan ("IEP") for Rebecca,
as required by IDEA.2 Personnel at the Center for Deafness
at the Western Pennsylvania School for the Deaf (the
"WPSD") performed an IEE, which was paid for by the
School District. The IEE was the basis for Rebecca's IEP for
the 1992-93 school year.

Rebecca's 1992-93 IEP included hearing impaired
support, speech theory, and language therapy. In addition,
Rebecca used a hearing aid and part-time interpreter
services in the classroom. The interpreter, Kevin Feyas, was
employed by the School District. In addition, on September
1, 1992, Chris DiFilippo was hired by the School District as
an interpreter for deaf students at Belle Valley. DiFilippo
also worked with Rebecca during the 1992-93 school year.

Rebecca continued with the same IEP during the 1993-94
school year. During 1994, however, the School District
would be obligated to do a multi-disciplinary re-evaluation
of Rebecca. The re-evaluation would determine Rebecca's
continued eligibility for special education services and
recommend a plan for the 1994-95 school year. The
Holmeses did not agree with the method of re-evaluation
proposed by the School District because a sign language
interpreter would be used. The Holmeses believed that
Rebecca should be assessed only by people who could
communicate directly with her by sign language while she
was being tested.

On December 6, 1993, mid-way through Rebecca's 6th
grade year, Mrs. Holmes asked the School District to have
the WPSD conduct an IEE of Rebecca as part of the re-
evaluation. Mrs. Holmes asked the School District to pay
for this second IEE. The School District refused to pay for
additional assessments by the WPSD but proposed to
_________________________________________________________________

2. See Part III.A. infra.

                               3
perform its own re-evaluation. The School District informed
the Holmeses that the School District could perform an
appropriate re-evaluation with its own experts, who were
familiar with Rebecca, her academic progress, and the
School District's curriculum.

After the School District refused their request to have the
WPSD evaluate their daughter, the Holmeses made
arrangements themselves for a WPSD evaluation of Rebecca
on February 10, 1994. The resulting IEE consisted of two
reports. The first, a two-page re-evaluation of Rebecca's
sign language skills, was authored by Marlene Schecter-
Connors. The second, a ten-page "Interview Summary," was
prepared by a psychologist, Dr. Paul Loera. Dr. Loera met
with Rebecca and her parents and reviewed various
materials produced in 1992 by the WPSD in connection
with its first evaluation of Rebecca.

On March 4, 1994, the School District filed a request for
a due process hearing on the appropriateness of its
proposed re-evaluation of Rebecca. Prior to the hearing, the
parties engaged in mediation but were unable to reach an
agreement. The Holmeses then obtained a continuance of
the hearing because they were involved in another due
process proceeding concerning the education of their son,
Matthew, who is also hearing-impaired.

On April 4, during the period of the continuance, the
School District asked the Holmeses for permission to re-
evaluate Rebecca. Mrs. Holmes requested that the School
District not perform any testing, evaluating, or other
procedures that would result in a written report that could
be incorporated into Rebecca's multi-disciplinary team
("MDT") report. Mrs. Holmes also informed the School
District that she would require that WPSD-approved
personnel be members of the MDT and that she had not yet
received the reports of 1994 assessment which the
Holmeses had had done by the WPSD. In addition, Mrs.
Holmes advised the School District that she opposed the
use of an interpreter in the re-evaluation.

During April, May, and June, Dr. Richard Lansberry, a
school psychologist, compiled Rebecca's Comprehensive
Evaluation Report ("CER") for the MDT. The data in the

                               4
CER included the WPSD 1992 IEE of Rebecca, evaluations
from Rebecca's speech therapist, and a language evaluation
of Rebecca by Kevin Feyas. Dr. Lansberry also informally
interviewed Rebecca, with Kevin Feyas serving as
interpreter.

On April 28, Mrs. Holmes again requested a detailed
description of any testing of Rebecca by the School District.
She also reminded the School District that she would not
consent to any testing to re-evaluate Rebecca. A copy of the
draft CER was sent to the Holmeses on July 7, 1994, nine
days after the WPSD's 1994 IEE reports was transmitted to
the School District.

At the start of the 1994-95 school year, two MDT
meetings were held, with the Holmeses present, to develop
an IEP for Rebecca. The resulting four-page CER stated
that Rebecca "will have access to a sign language
interpreter throughout all of her school day" and access to
structured study guides. In response to the CER, the
Holmeses wrote a dissenting opinion in which they stated
that they were dissatisfied with Dr. Lansberry's report. They
contended that the CER contained errors of fact, excluded
important information, and did not include information
about their goal of exposing Rebecca to "the deaf
community."

The new plan,   based on the CER, was implemented on
September 14,   1994, and was valid through June 7, 1995.
Despite their   dissent to the CER, the Holmeses did not
object to the   implementation of this plan.

In January 1995, the Holmeses requested due process
consideration of their request for reimbursement for the
1994 IEE performed by the WSPD. The bill for the 1994 IEE
was $400. The Holmeses presented this bill to the School
District on May 16, 1995. In January 1995, the Holmeses
had also raised concerns with the School District about the
qualifications of Rebecca's interpreter, Chris DiFilippo.
DiFilippo had become Rebecca's full-time interpreter in
December 1994 after her prior interpreter, Tina Hammer,
left. DiFilippo began working with Rebecca on a daily basis
on January 3, 1995. On January 23, after Rebecca
complained about DiFilippo, the Holmeses requested a due

                                 5
process hearing regarding his qualifications. Prior to the
hearing, the School District provided the Holmeses with
evaluations to demonstrate that DiFilippo was qualified.
The Department of Education had advised the School
District to contact Beverly Hollrah of Washington, D.C., to
conduct an evaluation of DiFilippo's skills. Hollrah viewed
a tape of DiFilippo interpreting for Rebecca in several
classes. On February 16, 1995, Hollrah informed the
School District that DiFilippo had done "a very nice and
satisfactory job of communicating the material presented in
all classes videotaped." When later deposed, however,
Hollrah stated that she did not know whether DiFilippo was
qualified, that she had been unaware that a student had
challenged his interpreting skills when she reviewed the
tape, and that, had she been aware of the student's
complaint, she would have wanted to meet with the student
and get further information before rendering an assessment
of DiFilippo's skills.

The due process hearing began on February 21, 1995.
The Holmeses had also requested leave to obtain an
independent evaluation of DiFilippo's skills. In addition,
they had asked to present evidence regarding the IEE
reimbursement issue. Although the School District had not
yet received a bill for the IEE, the Holmeses' counsel
advised the School District of the approximate cost of the
IEE.

At the February 21 hearing, the Holmeses received
Hollrah's report. At the same time, the Hearing Officer
announced that Marilyn Mitchell of the National Technical
Institute for the Deaf would evaluate DiFilippo's skills on
behalf of the Holmeses. The Holmeses had chosen Mitchell
to evaluate DiFilippo without input from the School
District, and the Holmeses paid for Mitchell's services. On
March 21, Mitchell reported that in her opinion DiFilippo
was not an adequate interpreter for Rebecca.

On March 8, however, prior to Mitchell's report and
before anyone was familiar with its contents, DiFilippo
requested to be relieved of the interpreter position and to be
transferred to the position of "special education assistant."
The request was made in part because DiFilippo did not
want to undergo the stress and potential harassment of a

                                6
hearing on his qualifications.3 On March 9, the School
District notified the Holmeses that DiFilippo had applied for
the new position, and, on March 20, the School District
approved DiFilippo's transfer to the position of special
education assistant.

Despite DiFilippo's transfer to a new job, when the due
process hearing was reconvened on March 21, the Hearing
Officer concluded that the issue of DiFilippo's qualifications
was not moot. The hearing officer came to this conclusion
because he found that a decision on DiFilippo's
qualifications would be helpful in resolving Rebecca's claim
for compensatory education during the period in which
DiFilippo had served as her interpreter.

On April 6, the School District offered tutoring to
Rebecca. The tutoring was to consist of one hour for each
of the forty seven days that DiFilippo had worked with
Rebecca, although the School District informed the
Holmeses that it "[did] not agree with the parents'
characterization that Mr. DiFilippo . . . [was] not qualified."
The Holmeses rejected the offer, apparently because of
Rebecca's schedule of extracurricular activities. The School
District then asked what, other than the tutoring, could be
provided to help Rebecca in her studies. The Holmeses
requested study guides for math, a subject in which the
School District had determined that Rebecca was weak,
regardless of her disability.

On June 1, 1995, after nine days of proceedings, the
Hearing Officer decided that the parents were entitled to
reimbursement for the 1994 IEE. Specifically, the Hearing
Officer concluded that "it is clear that the private
evaluations secured by the parents provided meaningful
information which helped to determine the nature and
extent of Rebecca's disability along with necessary
programming." The Hearing Officer did not, however,
_________________________________________________________________

3. DiFilippo already was familiar with such hearings because his brother
Dean had served as an interpreter for Rebecca's brother. Dean DiFilippo
had undergone a due process hearing, initiated by the Holmeses, over
his qualifications. Chris DiFilippo had attended the hearing, witnessed
the way in which the process had unfolded, and seen that the Holmeses
had prevailed against his brother.

                               7
determine whether it was appropriate to perform an
evaluation of Rebecca with the assistance of a sign
language interpreter. The Hearing Officer concluded that it
was "beyond the scope of this hearing to determine if
Rebecca must be assessed only by people who can directly
sign with her as she is being tested for an appropriate
evaluation."

The School District appealed. On July 28, 1995, the
Special Education Due Process Appeals Review Panel
unanimously reversed the Hearing Officer's determination.
The Panel concluded that the School District did not have
to reimburse the Holmeses for the 1994 IEE because the
Hearing Officer had committed legal error when he did not
consider whether the School District could provide an
"appropriate" re-evaluation. Instead, the Hearing Officer
had focused on whether the School District had used
information derived from the evaluation done by the
Holmeses' experts.4 Quoting the opinion in Kozak v.
Hampton Township Sch. Dist., 655 A.2d 641, 647 (Pa.
Commw. 1995), the Panel stated "[a]ccording to the plain
language of [Pennsylvania regulations], parents are entitled
to reimbursement for a private evaluation only if . . . the
private evaluation shows the school district's MDE to be
inappropriate." The Panel further noted that the Holmeses'
requirement, that the evaluator be fluent in sign language
and that an interpreter not be employed, had not been
adopted by either Pennsylvania or federal statutes or
regulations. For that reason, the Holmeses were not
justified in demanding reimbursement for their IEE on the
basis that the re-evaluation proposed by the School District
was inappropriate.
_________________________________________________________________

4. Both the Hearing Officer and the Review Panel concluded that the
issue of whether DiFilippo was qualified had been settled; thus, neither
one determined whether the interpreter was qualified. See app. at 1318
("When Rebecca's hearing began a second issue regarding qualifications
of her interpreter was introduced. . . The parties eventually reached an
agreement on the issue of the interpreter and the sole remaining issue
was concerned with the request for reimbursement for the independent
evaluations."); App. at 1332, n. 21 ("Early in the course of the
protracted
proceedings, the added issue of the qualifications of Rebecca's
interpreter, and the corollary questions of compensatory education
services and substitute interpreter qualifications, were resolved.").

                               8
Subsequently, the Holmeses sought payment of
attorney's fees, incurred up to that time, in the amount of
$53,445.74. The School District denied the Holmeses' claim
on the ground that the parents had not been a prevailing
party in the due process hearings.

On August 14, 1995, the Holmeses filed suit in the
United States District Court for the Western District of
Pennsylvania. They requested attorney's fees and costs as
the prevailing party within the meaning of 20 U.S.C.
S 1415. The Holmeses claimed to be the prevailing party
because 1) they were successful in demanding
reimbursement for the IEE and 2) as a result of the due
process hearings, the School District had reassigned
DiFilippo, had assigned another interpreter to Rebecca, had
offered compensatory education for the period that
DiFilippo had been assigned, and had agreed not to use
Chris or Dean DiFilippo as substitute interpreters.

After a 3-day trial, the District Court announced its
opinion from the bench. The court found that the Holmeses
were the prevailing party. It reversed the Appeals Review
Panel's denial of reimbursement for the cost of the 1994
IEE because portions of the IEE had been used by the
School District to formulate Rebecca's CER. The court did
not analyze whether the School District could itself have
conducted, or did conduct, an appropriate re-evaluation.
On August 27, 1998, the District Court issued an order
awarding attorney's fees of $141,070.28 to the Holmeses.

The School District appealed the award of attorney's fees
and costs, as well as the award of costs associated with the
1994 IEE. We have jurisdiction of this appeal pursuant to
28 U.S.C. S 1291.

II. Standard of Review

The District Court's findings of facts are reviewed for
clear error. Sheet Metal Workers Local 19 v. 2300 Group,
Inc., 949 F.2d 1274, 1278 (3d Cir. 1991). We have plenary
review over the District Court's choice, interpretation and
application of the law to the facts. Epstein Family
Partnership v. Kmart Corp., 13 F. 3d 762, 765-66 (3d Cir.
1994). Generally, we review a fee award for abuse of

                               9
discretion. Kean v. Stone, 966 F.2d 119, 121 (3d Cir. 1992).
Where, however, the question is whether the District Court
applied the correct legal standard, our review is plenary. Id.

III. Discussion

A. Statutory Framework

IDEA establishes minimum requirements for the
education of children with disabilities.5 The statute requires
states to provide such children with a "free[and]
appropriate public education," which is based on the
unique needs of each individual student.6 20 U.S.C. S 1412.
School districts achieve this goal by developing a detailed
instructional plan, or an IEP, for each child who is
classified as disabled. 20 U.S.C. S 1401(a)(18). An IEP
consists of a specific statement of a student's present
abilities, goals for improvement of the student's abilities,
services designed to meet those goals, and a timetable for
reaching the goals by way of the services. Id . at
S 1401(a)(20). The Congressional purpose in enacting IDEA
was to provide "access to a `free appropriate public
education' . . which . . . is . . sufficient to confer some
educational benefit upon the handicapped child." Board of
Education v. Rowley, 458 U.S. 176, 200 (1982). In this way,
_________________________________________________________________

5. IDEA was enacted "to assure that all children with disabilities have
available to them . . . a free appropriate public education which
emphasizes special education and related services designed to meet their
unique needs [and] to assure that the rights of children with disabilities
and their parents or guardians are protected." 20 U.S.C. sec. 1400(c).

6. A "free appropriate public education" is defined in 20 U.S.C. sec.
401(a)(18) as special education and related services that--

       (A) have been provided at public expense, under pu blic supervision
       and direction, and without charge,

       (B) meet the standards of the State educational ag ency,

       (C) include an appropriate preschool, elementary, or secondary
       school education in the State involved, and

       (D) are provided in conformity with the individual ized education
       program required under section 1414(a)(5) of this title.

See also 22 Pa. Code S 14.1 ("appropriate program").

                               10
the IEP provides a "basic floor of opportunity" but not
necessarily "the optimal level of services . . .." Carlisle Area
School v. Scott P. By and Through Bess P., 62 F.3d 520,
533-34 (3d Cir. 1995).

States that receive IDEA funding must create an
administrative structure to develop IEPs. 20 U.S.C.
S 1414(a)(5). In addition, states must establish procedural
safeguards for children with disabilities and for their
parents; among the most important of these safeguards is
allowing parents to dispute the appropriateness of their
child's IEP through an impartial due process hearing. 20
U.S.C. S 1415.

Under Pennsylvania law, an IEP is defined as "[A] written
plan for the appropriate education of an exceptional
student." 22 Pa. Code S 14.31(b).7 The Commonwealth
requires an IEP to include: 1) a statement of the student's
present levels of educational performance; 2) a statement of
annual goals and short-term learning outcomes which are
responsive to the learning needs identified in an evaluation
report; and 3) a statement of the specific special education
services and programs and related services to be provided
to the disabled student. 22 Pa. Code S 14.32(f). Parents may
request due process hearings about the appropriateness of
the IEP pursuant to 22 Pa. Code S 14.64(a). 8

B. Reimbursement for the IEE

Pennsylvania regulations allow parents to be reimbursed
for a private evaluation of a disabled student if that
evaluation was sought as a result of the parent's
_________________________________________________________________

7. Pennsylvania defines the term "exceptional children" as "children of
school age who deviate from the average in physical, mental, emotional
or social characteristics to such an extent that they require special
educational facilities or services . . . ." Pa. Stat. Ann. Title 24, S 13-
1371(1).

8. 22 Pa. Code S 14.64(a) provides:

        "Parents may request an impartial due process hearing concerning
        the identification, evaluation or educational placement of . . . a
child
        who is eligible or who is thought to be eligible, if the parents
        disagree with the school district's identification, evaluation or
        placement of . . . the student . . . ."

                                11
disagreement with the school's MDE, and if the evaluation
then demonstrates that the school's MDE was in some way
inappropriate. See Kozak, 655 A.2d at 647.

The record here shows that the Holmeses sought the
services of the WPSD only after informing the School
District of their belief that it could not properly re-evaluate
Rebecca. Thus, prior to obtaining an IEE, the Holmeses met
their burden of stating their disagreement with the School
District's process of evaluating their daughter. The crucial
issue is, however, whether the Holmeses demonstrated that
the School District's evaluation of their daughter was
inappropriate.

First, we note that the District Court did not directly
address the issue. The court's only reference to whether the
School District's evaluation was appropriate was oblique:
"Rebecca got a full-time interpreter because of evaluation
initiated by the parents, not the school district." Thus,
rather than considering whether the School District's re-
evaluation was appropriate, the court focused on the
School District's purported reliance on the WPSD report in
formulating Rebecca's educational plan.

This was error. The School District is required by federal
and state law to consider all evaluations of disabled
students. See 34 C.F.R. S 503(c) (stating that if the parents
obtain an IEE at private expense, the results "[m]ust be
considered by the public agency"); see also 22 Pa. Code
S 14.67(c)("if parents obtain an IEE at private expense, the
results . . . shall be considered by the district in decisions
made with respect to the provision of a free appropriate
public education to the student."). For that reason, the fact
that the School District considered the WSPD's second
evaluation of Rebecca does necessarily indicate that
reimbursement is required.

The Holmeses may be reimbursed for the WPSD IEE only
by showing that the School District's 1994 re-evaluation
would be inappropriate. Bernardsville Board of Education v.
J.H., 42 F.3d 149,157 (3d Cir. 1994). The Holmeses have
not shown this. Although the Holmeses contend that the
School District's evaluation was inappropriate because of
the lack of expertise of the individuals who conducted it,

                               12
they base their position not on statutory or regulatory
language but on expert opinions which do not have the
force of law.

The Holmeses argue that the Pennsylvania Department of
Education's 1995 Guidelines on the "Education of Students
with Hearing Loss" supports their position. The Holmeses
are correct that these guidelines recommend the use of a
psychologist fluent in sign language or in another form of
communication preferred by the student, in evaluating
hearing disabled students. ("The participation of the
psychologist is necessary in any MDT. . .. It is critical that
the psychologist be fluent in the communication mode and
psychological/linguistic uniqueness of the student") (citing
Pa. Dept. of Educ., Guidelines for the Education of Students
with Hearing Loss (1995)). These guidelines do not,
however, establish law. As the Appeals Review Panel noted,
these Guidelines suggest an optimum level of educational
services and were made for purposes of advocacy. They
were not binding on the School District at any time relevant
to this suit.9 See App. at 1336 ("Even if there is only one
school of thought in the modern literature of deaf education
regarding [whether a non-fluent psychologist can
appropriately evaluate deaf students] . . . there is currently
a difference between the professional optimum and the
legal minimum.") (citations omitted). Thus, the Board
concluded, "contrary to the parents assertion, neither
Pennsylvania or federal statutes and regulations have
adopted [the Holmeses'] position."10

The Holmeses go on to assert that the school
psychologist, Dr. Lansberry, was not fluent in American
_________________________________________________________________

9. As a way of emphasizing this point, we note that the Guidelines were
still in advance copy form at the end of the school year 1994-1995, and
that although the Guidelines were distributed to schools in August of
1995, it is not clear when they were in the possession of the relevant
officials at the Millcreek School District. See app. at 1613.

10. In addition, a circular from the Pennsylvania Department of
Education, dated March, 1992, recommended that when a student's
disability involves hearing loss, the MDT should"include evaluators
knowledgeable about deafness/hearing impairment." The department
noted, however, that when such evaluators are not available, a "qualified
interpreter must be utilized during evaluations and conferences."

                               13
Sign Language ("ASL") and, thus, could not evaluate
Rebecca appropriately. They claim that Dr. Lansberry
"admitted that he was not qualified to evaluate Rebecca's
need for interpreting services." In addition, the Holmeses
argue that Kevin Feyas, who served as Dr. Lansberry's
interpreter, was not credentialed as either an interpreter or
a psychologist and thus could not have contributed to an
appropriate evaluation of Rebecca.

It is not disputed that Dr. Lansberry is not fluent in ASL.
We do not, however, accept the Holmeses' contention that
Dr. Lansberry's lack of fluency in ASL signifies that the
School District's MDE was inappropriate. First, the
Supreme Court has ruled that we must not substitute our
judgment about proper education methods for that of state
educational authorities. Rowley, 458 U.S. at 207. We must
give "due weight" to the underlying state administrative
proceedings. Id. at 206. In the instant action, the Appeals
Review Panel concluded that Dr. Lansberry and others were
able to evaluate Rebecca appropriately. We give due
deference to that finding.

We also note that, although we must consider
administrative fact findings, we have not interpreted Rowley
as requiring us to accept such findings. See Carlisle Area
School, 62 F.3d at 529. Here, however, we do notfind
sufficient evidence in the record to persuade us that we
should second-guess the findings of the Board and the
opinion of the School District. We find no indication that
Dr. Lansberry, with the aid of Kevin Feyas, rather than the
hypothetical psychologist trained in ASL, could not
appropriately evaluate Rebecca. Dr. Lansberry testified
that, with the help of translators, he had dealt with deaf
children in the past. Although he believed that the MDT
should include persons familiar with a deaf child's needs
and persons who could communicate directly with the deaf
child, he did not agree that he had to be fluent in sign
language in order to appropriately assess Rebecca for
purposes of creating an IEP. We conclude that Dr.
Lansberry provided valuable information concerning
Rebecca's need for increased interpreter services by
assessing, inter alia, Rebecca's feelings about being hearing
impaired, her desire for interpreter services, her academic
abilities, and her academic progress.

                               14
Moreover, the School District's determinations about
Rebecca's educational needs for the 1994-95 school year
were based on the work of the entire MDT, rather than on
the expertise of any one member of the MDT, including Dr.
Lansberry. While ASL-fluent psychologists may be
preferred, the Holmeses' own experts acknowledged that,
with the help of a translator, appropriate evaluations of
deaf students can be achieved by professionals who are not
fluent in ASL. In addition, we find persuasive the School
District's argument that their staff in some ways was
better-qualified than the WPSD's staff to evaluate Rebecca.
For instance, the School District's staff were familiar with
the curriculum at Belle Valley and with Rebecca and the
progress she was making.

Similarly, we find no support in the record for the
Holmeses' argument that Kevin Feyas' participation in the
MDE implies that it was inappropriate. Whereas the
Holmeses suggest that Feyas was a novice in teaching the
deaf at the time that he served as Dr. Lansberry's
interpreter, the record shows that Mr. Feyas had worked
with Rebecca for over two years and was aware of her
preferred method of communication. Moreover, Feyas was
familiar with the Belle Valley curriculum and had been
certified by the state as a teacher for the hearing impaired.
While Feyas was not certified by the Registry of Interpreters
for the Deaf, a national registry, he had a provisional
certification from another national organization, the Council
of Education for the Deaf. These facts do not support the
Holmeses' contention that Feyas was unqualified to assist
in evaluating Rebecca.11

In sum, we hold that there has been no showing that the
School District's MDE was inappropriate. Thus, we
conclude that the District Court erred in finding that the
_________________________________________________________________

11. Moreover, we note, as did the Appeals Review Panel, that the
Holmeses' denial of consent to the School District for testing or any
other
formal interaction with Rebecca for purposes of re-evaluation "effectively
limited the School District's performance of its obligation to conduct an
appropriate evaluation." As a result of this denial of consent, Dr.
Lansberry was limited to reviewing, inter alia , previous evaluations of
and data about Rebecca, and informal meetings with Rebecca and her
interpreter, Mr. Feyas.

                               15
Holmeses were entitled to reimbursement for the IEE. As a
matter of law, they were not.

C. Attorney's Fees and Costs

The District Court awarded attorney's fees and costs to
the Holmeses because it found that they had prevailed in
the due process hearing regarding the IEE and DiFilippo's
qualifications. As to the latter, the Court found that the
Holmeses had achieved three objectives: DiFilippo had been
removed from his position as Rebecca's interpreter, another
interpreter had been assigned, and Rebecca had received
compensatory education for the period during which
DiFilippo worked as her interpreter. The award of attorney's
fees and costs was $141,070.28.

The Education of the Handicapped Act's fee-shifting
provision states that, "[i]n any action or proceeding brought
under this subsection, the court, in its discretion, may
award reasonable attorneys' fees as part of the costs to the
parents or guardian of a child or youth with a disability
who is the prevailing party." 20 U.S.C. S 1415(e)(4)(B).12
Thus, the language of the fee-shifting provision of the
relevant statute is permissive, rather than mandatory. To
qualify as a "prevailing party" within the meaning of the
provision, a litigant must demonstrate that he obtained
relief on a significant claim in the litigation, that such relief
effected a material alteration in his legal relationship with
the defendant and that the alteration is not merely
technical or de minimis in nature. See Texas State Teachers
Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-93
(1989); Hensley v. Eckerhart, 461 U.S. 424 (1983). Further,
the litigant must show that there is a "causal connection
between the litigation and the relief from the defendant."
Institutionalized Juveniles v. Secretary of Pub. Welfare, 758
F.2d 897, 910 (3d Cir. 1985); see also Wheeler v. Towanda
Area Sch. Dist., 950 F.2d 128, 131 (3d Cir. 1991). The
pressure resulting from on-going litigation is sufficient to
_________________________________________________________________

12. The standards governing the award of attorneys' fees under 42 U.S.C.
S 1988 are applicable to awards sought under the IDEA. See, e.g.,
Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7 (1983); Jodlowski v. Valley
View Community Unit Sch. Dist. No. 365-U, 109 F.3d 1250, 1253 n. 2
(7th Cir. 1997).

                               16
satisfy this standard. Baumgartner v. Harrisburg Hous.
Auth., 21 F.3d 541, 545-50 (3d Cir. 1994) (affirming
viability of "catalyst theory," by which plaintiffs are eligible
for fees without obtaining a judgment or formal settlement,
as long as they prove that the suit accomplished its
objective); see also D.R. v. East Brunswick Bd. of Educ., 109
F.3d 896, (3d Cir. 1997) (settlement agreement voluntarily
and willingly entered into by school district and parents of
handicapped child during IDEA mediation created binding
contract between parties and was enforceable); cf. Farrar v.
Hobby, 506 U.S. 103, 112 (1992) (holding that plaintiff who
wins nominal damages is prevailing party under section
1988, but finding attorney's fee award inappropriate).13

The District Court concluded that the Holmeses were a
prevailing party pursuant to the "catalyst theory" affirmed
by our circuit in Baumgartner. That is, the court concluded
that "but for the [due process] hearings,[Chris DiFilippo]
would have stayed at his original position." Because of the
facts that the Holmeses initiated the hearing process, that
DiFilippo resigned, and that a new interpreter was
assigned, the court found that the Holmeses had achieved
their desired relief.

In support of its argument that the attorney's fee award
was in error, the School District cites cases holding that
plaintiffs may only be considered a prevailing party if the
defendant's change of conduct is required by a lawsuit or a
"lengthy enforceable settlement agreement." E.g. Patricia E.
v. Board of Education of Community High School Dist. No.
155, 894 F. Supp. 1161 (N.D.Ill. 1995). The School District
argues that the facts of this case are at odds with this
standard. The School District also asserts that the"but for"
analysis employed by the District Court does not comport
with Baumgartner. The School District contends that the
catalyst theory requires "legal change" favorable to the
_________________________________________________________________

13. The Supreme Court recently in Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 120 S.Ct. 693, 711-12 (2000), noted
the circuit split on the viability of the "catalyst theory" post-Farrar
but
declined to address the issue in the context of that case as being
premature. The Court indicated that any request for costs, including
attorney's fees, must be addressed in the first instance by the District
Court.

                               17
plaintiff " and that the "but for" analysis is not consistent
with such affirmative change. Thus, the "but for analysis is
not an adequate conception of cause" [for IDEA fee-shifting]
. . . and the question of whether a party prevailed because
of the legal proceeding rather than for some other reason is,
at a minimum, a question about causality." See Board of
Education of Downers Grade School Dist. No. 58 v. Steven
L., 89 F.3d 464, 469 (7th Cir. 1996) (quoting Brown v.
Griggsville Comm. Unit School Dist. No. 4, 12 F.3d 681, 684
(7th Cir. 1993)).

We agree that this is not a classic situation for
application of the catalyst theory, B.K. v. Toms River Bd. of
Educ., 998 F. Supp. 462 (D.N.J. 1998), because the record
does not show definitively that the School District replaced
DiFilippo in order to appease the Holmeses. Rather, the
record shows that DiFilippo left the job of his own accord.
Moreover, the record shows that, even when notifying the
Holmeses that it would provide tutoring for Rebecca for the
period that DiFilippo had served as her interpreter, the
School District maintained its disagreement with the
Holmeses' opinion about his qualifications.

Nevertheless, the record also demonstrates that the
Holmeses' objective of no longer having DiFilippo serve as
an interpreter for Rebecca was achieved as a direct result
of the due process hearing that they initiated. It was
because of the potential for stress and embarrassment that
DiFilippo left the interpreter's job. Although DiFilippo's
decision to leave the position as interpreter and take
another (significantly lower-paying) job say seem to have
been a personal one, it was causally influenced by the
Holmeses' initiation of the hearing. This sequence of events
satisfies the Baumgartner standard. See 21 F.3d at 547-48.
That the School District offered tutoring to Rebecca for the
period during which DiFilippo was her interpreter
buttresses the inference that the Holmeses' challenge to
DiFilippo's qualifications resulted in the requisite "legal
change" needed to demonstrate success for purposes of an
award of attorney's fees and costs.

This case is distinguishable from Wheeler v. Towanda
Area Sch. Dist., 950 F.2d 128 (3d Cir. 1991), a case upon
which the School District relies in challenging the

                               18
attorney's fee award. In Wheeler, the parents of a disabled
student challenged the qualifications of the interpreter
assigned to work with their child. We affirmed the denial of
an attorney's fee award to the parents who made that
challenge. Id. at 132. We did so, however, because we
concluded that the parents had not shown a causal
connection under either of their theories between their
lawsuit and the hiring of a new interpreter. Id. We noted
that the school district had begun searching for a new
interpreter months before the resolution of the
administrative action initiated by the Wheelers, based, in
part, on the fact that the interpreter had fallen ill.

By contrast, our affirmance of the District Court's finding
in this case is based on the fact that DiFilippo's departure
from the position as Rebecca's interpreter was motivated by
the Holmeses' actions, in particular, the stress and
harassment that DiFilippo believed he might suffer as a
result of the due process hearing. Having achieved their
objective of having DiFilippo removed as Rebecca's
interpreter, the Holmeses are entitled to an award of
attorney's fees. See Texas State Teachers Ass'n , 489 U.S. at
791-93.

Nevertheless, we find that the amount of the award was
excessive. First, the Holmeses are no longer the prevailing
party on the issue of reimbursement for the 1994 IEE. In
addition, we note that both the Hearing Officer and Appeals
Review Panel felt that the Holmeses and their counsel had
"contributed to" the needlessly "protracted proceedings." We
also note that the Holmeses bear the burden of establishing
the reasonableness of the requested fees and are required
to submit evidence to support their claims for hours
expended in performing specified tasks. See Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (quoting
Hensley, 461 U.S. at 433; Washington, 89 F.3d at 1037.

The accepted procedure for determining a reasonable fee
award is to multiply reasonable hours expended on a
matter by a reasonable billing rate for the attorneys who
performed the tasks involved. Washington, 89 F.3d at 1035.
A reasonable hourly rate is calculated according to the
prevailing market in the community. Id. An attorney's
showing of reasonableness must rest on evidence other

                                19
than the attorney's own affidavits. Blum v. Stenson, 465
U.S. 886, 895-96 n. 11 (1984). Moreover, the court must be
careful to exclude from counsel's fee request "hours that
are excessive, redundant or otherwise unnecessary. .. ."
Hensley, 461 U.S. at 434.

Relying upon the cases that we have cited, supra , the
School District argues that neither the requested hourly
rate of the Holmeses' counsel, nor the hours expended in
performing tasks for this litigation, is reasonable. The
School District argues that counsel for the appellees failed
to produce sufficient evidence that her rate request is
commensurate with her skill, experience, and reputation in
the community. She offers only her own affidavit in support
of her rate and bases the rate on the prevailing hourly rate
in Philadelphia or statewide. The School District is correct
in contending that counsel's own affidavit may not be
sufficient support for her hourly rate. Blum , 465 U.S. at
895-96 n. 11.

The School District also argues that the fee award
contains repetitive and unnecessary billing by counsel for
the appellees. The School District lists twenty-nine such
instances of excessive billing, including: 111.5 hours for
preparing an answer and brief in opposition to the School
District's Exceptions to the Hearing Officer's decision; forty-
six hours for preparing the complaint in this action; two
and a half hours for preparing a self-executing disclosure;
eighty-seven hours for the taking of and preparing for
depositions regarding DiFilippo's qualifications; ten and
one-half hours for preparing a pre-trial narrative statement;
ninety-five and three-fourths hours for preparing, inter alia,
motions in limine, motions for sanctions, and responses
regarding DiFilippo's qualifications; twenty-five hours for
taking the deposition of Marilyn Mitchell regarding
DiFilippo's qualifications; and thirty-seven and a half hours
for drafting a response to allegedly inaccurate and
inadmissable statements in the School District's proposed
findings of fact and conclusions of law.

Counsel for the appellee contends that the award is not
excessive, based on the degree of success she achieved in
this litigation, the four-plus years spent in litigation over
the issues involved in this action, the "risk of nonpayment"

                                20
assumed "when she undertakes to represent parents of deaf
and hard of hearing students," and her status as a sole
practitioner whose adversaries in disability rights cases
invariably are "prestigious law firms." Counsel cites no law
in support of her billing practices, other than Bernardsville,
Brd. of Educ. v. J.H., 817 F. Supp. 14, 23 (D.N.J. 1993),
aff 'd in part, 42 F.3d 160, 160-61 (3d Cir. 1994) for the
proposition that "degree of success" is a factor to be
considered in assessing fee requests, and Public Interest
Group v. Windall, 51 F.3d 1179 (3d Cir. 1995) for the
proposition that the relevant legal community, for purposes
of determining an hourly rate, is not confined necessarily to
the borders of a town.

Although the District Court has wide discretion in
determining a fee award, we conclude that the fee awarded
here was excessive. Our decision is predicated,first, on the
fact that the Holmeses did not prevail on the
reimbursement issue. Next, we find that counsel failed to
properly support the hourly rate at which she requests
reimbursement. We also find the fee breakdown provided in
her billing records out of line with what is reasonable for
counsel of the level of experience in litigating disability
rights cases that counsel claims; with experience, the
amount of time spent performing routine tasks in an area
of one's expertise should decrease. Most significantly, we
question the necessity of the great amount of time claimed
by counsel for, inter alia, exploring DiFilippo's
qualifications; we disagree with counsel's apparent
understanding of her degree of success, in light of the
outcome on appeal; and finally we find that this litigation
was needlessly protracted, extending far beyond what was
reasonable, given the nature of the issues involved in this
case, which are not novel. Moreover, we note that this is
not a case in which the school district has been
intransigent or willfully undermining a disabled student's
education; rather, it is apparent from the record that the
School District meant to comply with the letter and spirit of
the IDEA. Thus, this case should have been resolved years
ago.

Based on our conclusion that the fees claimed here are
not reasonable, we will reduce the award of attorney's fees

                               21
and costs to one-fourth of the original $53,445.74 fee
demand made by the Holmeses.

IV. Conclusion

For the foregoing reasons, we conclude that the District
Court erred in requiring reimbursement to the Holmeses for
the IEE. We will, however, affirm an award of attorney's fees
and costs to the Holmeses, but, because we find that the
award of fees excessive, we reduce it to $35,267.57, one-
fourth of $141,070.28 awarded by the District Court.

                               22
GREENBERG, Circuit Judge, concurring and dissenting.

I join in the majority's opinion except to the extent that
it sustains any attorney's fee being paid to the Holmeses.
Inasmuch as I depart from the majority's conclusion on the
Chris DiFilippo matter, in my view the Holmeses were not
prevailing parties under 20 U.S.C. S 1415(i)(3)(B), previously
20 U.S.C. S 1415(e)(4)(B), in any respect. The majority
indicates that this case "is not a classic situation for
application of the catalyst theory because the record does
not show definitively that the School District replaced
DiFilippo in order to appease the Holmeses." Majority
Opinion at 18 (citation omitted). I certainly agree with that
statement as the record cannot even support an inferential
conclusion that the School District replaced DiFilippo to
appease the Holmeses or for any other purpose. To the
contrary, DiFilippo left his interpreter position because, as
the majority recognizes, he "did not want to undergo the
stress and potential harassment of a hearing on his
qualifications." Majority Opinion at 6-7. Thus, as the
majority recites, "the record shows that DiFilippo left the
job of his own accord." Majority Opinion at 18. Nothing
could be clearer.

Obviously DiFilippo had good reason to take such action
for, as the majority points out, he was familiar with
proceedings under the IDEA. Accordingly, he knew what to
expect at the anticipated hearing. In the circumstances,
who could blame him for seeking a new position in order to
stay out of this litigation?

In any event, even if DiFilippo should not have been
intimidated by the Holmeses' challenge to his qualifications,
the fee award still is unjustified. After all, at least to the
best of my knowledge, we never have applied the"catalyst
theory" to award a plaintiff fees against a defendant in
circumstances in which a plaintiff, as here, does not obtain
any relief by judgment or settlement from the defendant
and the defendant has done nothing to change its behavior
"to eliminate the complained-of conduct." See Baumgartner
v. Harrisburg Housing Auth., 21 F.3d 541, 544 (3d Cir.
1994). As we indicated in Institutionalized Juveniles v.
Secretary of Public Welfare, 758 F.2d 897, 910 (3d Cir.
1985) (emphasis added), dealing with a fee application

                                23
under 42 U.S.C. S 1988, "a court must decide whether
plaintiffs are prevailing parties and whether there is a
causal connection between the litigation and the relief
obtained from the defendant." While there can be no doubt
that DiFilippo took action which satisfied the Holmeses, he
never has been a party to these proceedings in either their
administrative or judicial aspects. Moreover, the Holmeses
are not seeking any fees from him nor could they do so.
Furthermore, the administrative hearing authorities' view
that the matter of DiFilippo's qualifications was settled
merely was a recognition that the issue was moot.
Obviously, because the defendants neither unilaterally nor
by agreement with the Holmeses removed DiFilippo as an
interpreter, the parties to this litigation did not settle the
case.

Inasmuch as DiFilippo by his action mooted the
controversy over his qualifications, no party could prevail
on that issue and none has done so. Thus, we are not
concerned here with the policy considerations we set forth
in Baumgartner, i.e., if a defendant unilaterally could moot
the underlying case by conceding to a plaintiff 's demands
attorneys might be reluctant to bring civil rights suits. Id.
at 548. In this regard I emphasize that there is no
suggestion in the record that the defendants acted in
collusion with DiFilippo to moot the issues involving him.
Thus, the defendants did not urge DiFilippo to apply for the
new position to which he was transferred.

I want to point out that the majority's opinion is very
significant as it cannot be limited to IDEA cases. The
provision that a fee may be awarded to a "prevailing party'
in 20 U.S.C. S 1415(i)(3)(B) is reflected in other statutes. For
example there are "prevailing party" provisions in the civil
rights, 42 U.S.C. S 1988, and employment discrimination,
42 U.S.C. S 2000e-5(k), statutes. As a result of this case we
may anticipate that in future litigation in which plaintiffs
obtain relief by reason of the actions of persons not parties
to litigation they will seek fees from the defendants.

Finally I want to point out that the Supreme Court
recently in Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 120 S.Ct. 693, 711-12
(2000), pointed out that there now is some question as to

                               24
the continuing validity of the catalyst theory, although it
indicated that it would be premature to address the issue
in the context of that case. While I certainly recognize that
the catalyst theory is followed in this circuit, in view of the
Court's opinion in Laidlaw, we should not extend it.

In view of the foregoing, while I agree completely with the
majority that the IEE reimbursement should not be
allowed, I would reverse the order awarding fees in its
entirety.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               25
