                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2003

John T. v. DE Cty Intermediate
Precedential or Non-Precedential: Precedential

Docket 01-3575




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PRECEDENTIAL

       Filed January 30, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3575/4206

JOHN T., A MINOR BY HIS PARENTS AND NEXT
FRIENDS, PAUL T. AND JOAN T.; PAUL T.; JOAN T.,
INDIVIDUALLY, AND ON THEIR OWN BEHALF, ALL OF

v.

THE DELAWARE COUNTY INTERMEDIATE UNIT,

Defendant/Third-Party Plaintiff

v.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT
OF EDUCATION;

Third-Party Defendant

Delaware County Intermediate Unit,

       Appellant No. 01-3575

JOHN T., A MINOR BY HIS PARENTS AND NEXT
FRIENDS, PAUL T. AND JOAN T.; PAUL T.; JOAN T.,
INDIVIDUALLY, AND ON THEIR OWN BEHALF, ALL OF

v.

THE DELAWARE COUNTY INTERMEDIATE UNIT,

Defendant/Third-Party Plaintiff

v.




COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT
OF EDUCATION;

       Third-Party Defendant

John T., Paul T. and Joan T.

       Appellants No. 01-4206

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 98-cv-05781)
District Judge: Honorable Norma L. Shapiro

Argued on June 13, 2002
Before: ROTH, RENDELL* and ROSENN,
Circuit Judges

(Opinion filed: January 30, 2003)

       Dennis C. McAndrews, Esquire
        (Argued)
       Monahan & McAndrews
       Suite 108, 125 Strafford Avenue
       Wayne, PA 19087

       Howard G. Hopkirk
       Office of Attorney General of
        Pennsylvania
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

        Counsel for Appellants/Cross
       Appellees
_________________________________________________________________

* The Honorable Marjorie O. Rendell participated in the oral argument
and conference and joined in the decision in this case on June 13, 2002,
but became recused from this matter prior to filing of the opinion. This
opinion and judgment are being entered insofar as the remaining judges
are unanimous in this decision.
                                2


       Michael I. Levin, Esquire
        (Argued)
       Allison C. Snyder, Esquire
       Levin Legal Group, P.C.
       1402 Masons Mill Business Park
       1800 Byberry Road
       Huntingdon Valley, PA 19006

        Counsel for Appellees/Cross
       Appellants

       Caryl Andrea Oberman, Esquire
       Robert T. Lear, Esquire (Argued)
       Grove Summit Office Park
       607A North Easton Road
       Willow Grove, PA 19090

        Counsel for Amici Curiae

OPINION OF THE COURT

ROTH, Circuit Judge:

We review two Orders entered by the District Court for
the Eastern District of Pennsylvania in connection with a
claim brought under the Individuals with Disabilities
Education Act, 20 U.S.C. SS 1400 et seq. (2002) (IDEA). For
the reasons set forth below, we will affirm both Orders.

First, the Delaware County Intermediate Unit (DCIU), the
defendant before the District Court, asks us to reverse a
Contempt Order requiring it to pay plaintiffs John T. and
his parents Paul T. and Joan T. (hereinafter "John T.")
$1,100 in compensation for the costs of its failure to
comply with a Preliminary Injunction. The DCIU raises
various objections regarding the nature of the contempt
proceeding, the requirements of the Preliminary Injunction
and the process to which the DCIU was entitled. We
conclude that none of these objections has merit.

Second, in a separate appeal, John T. asks us to   reverse
an Order that denied him attorney’s fees. Before   reaching
settlement and voluntarily dismissing his claim,   John T.
had obtained preliminary injunctive relief and a   civil

                                  3


contempt order to enforce that relief. We must determine
whether John T. then qualifies as a "prevailing party" under
the IDEA fee-shifting provision. We hold that he does not.

I. Facts and Procedural History

John T. is a twelve year old mentally retarded child with
Downs Syndrome. He lives with his family in the Haverford
Township School District in Delaware County,
Pennsylvania. From September 1993 until June 2000, John
T. attended the St. Denis Elementary School, a non-profit,
private school in Delaware County. Although John T.’s
parents paid his St. Denis tuition, John T. received some
publicly-funded special education programs and related
services at St. Denis from the DCIU.

The DCIU is charged by Pennsylvania law with the
provision of special education services to children with
disabilities attending private schools within Delaware
County. See 24 P.S. SS 9-972.1 & 13-1372(4) (2002)
(charging the Intermediate Units with the provision of
proper education, training and "auxiliary services" for
exceptional children not enrolled in public schools)
(collectively, the Pennsylvania Statutes).

During the summer of 1998, a dispute arose regarding
the programs and services that DCIU was obligated to
provide John T. for the 1998-99 school year. While the
DCIU was willing to provide services to John T. at a public
school, it refused to continue providing them at St. Denis.
John T. and the DCIU were unable to resolve their dispute
before the school year began. During the early months of
that school year, the DCIU provided no programs or
services to John T. and refused to provide the state due
process hearing procedures outlined in the IDEA. During
that time, John T.’s parents provided necessary programs
and services to John T. at their own expense.

On November 2, 1998, John T. filed a Complaint in the
United States District Court for the Eastern District of
Pennsylvania. Proceeding under the IDEA, John T. sought
inter alia (1) compensation for the cost of providing
programs and services during the first months of the 1998-
99 school year, (2) provision of needed programs and

                                4


services for John T. at St. Denis during the remainder of
the year, and (3) a due process hearing and other
procedural safeguards provided by the IDEA.

After hearing testimony and argument, the District Court
issued a Preliminary Injunction and Memorandum Opinion
on May 8, 2000. See John T. v. Delaware County
Intermediate Unit, 2000 U.S. Dist. LEXIS 6169 (E.D. Pa.
May 8, 2000) (John T. I). The Preliminary Injunction ordered
DCIU to "provide John T. with speech therapy, occupational
therapy, a teacher’s aide,1 and an itinerant teacher,2 for
secular subjects only, at levels reasonably calculated to
afford meaningful educational progress in his current school
program at St. Denis." Id. at *31 (emphasis added).3
_________________________________________________________________

1. "A teacher’s aide is a one-on-one assistant working directly with the
[disabled] child, full time, to help the child perform in a mainstream
classroom. A teacher’s aide minimizes the burden on the classroom
teacher of caring for the special needs of a disabled child; for example,
a teacher’s aide takes the disabled child out of the classroom for breaks
and keeps the disabled child’s classroom materials in order." John T. I,
2000 U.S. Dist. LEXIS 6169 at n.3.

2. "An itinerant teacher, by consulting with a child’s classroom teacher,
aids the classroom teacher in modifying the regular education
curriculum to teach the [disabled] child." John T. I, 2000 U.S. Dist.
LEXIS 6169 at n.2.

3. The DCIU questions the District Court’s interpretation of the IDEA
with respect to this requirement. However, the DCIU waived the issue
when it withdrew its direct appeal of the Preliminary Injunction.
Accordingly, we will not resolve the issue here. A brief summary of the
District Court’s analysis is helpful nevertheless to understand the
context of the District Court’s rulings.

The IDEA, itself, does not mandate that local educational agencies like
the DCIU provide special education and related services to disabled
children who voluntarily attend private schools. See 20 U.S.C.
S 1412(a)(10)(C) (2002). However, in analyzing John T.’s likelihood of
success on the merits, the District Court concluded that the obligations
imposed upon the DCIU by the Pennsylvania Statutes are incorporated
into the IDEA. See John T. I, 2000 U.S. Dist. LEXIS 6169 at *14-*21. The
District Court based this conclusion on a provision that states "[t]he
term ‘free appropriate public education’ means special education and
related services that . . . meet the standards of the State educational
agency [(hereinafter SEA)]." 20 U.S.C.S 1401(8)(B). Because the IDEA

                                5


The District Court explained that the crux of the issue
between the parties was not the extent of the services that
the DCIU was obligated to provide to John T., but whether
the DCIU was obligated to provide services to John T. at St.
Denis. See id. at *7. The court also set forth several findings
of fact that supported its decision to keep John T. at St.
Denis. Specifically, the court noted that previous attempts
to move John T. to a public school had failed and that John
T. benefitted from attending school at St. Denis because his
two non-disabled siblings were students there. Ultimately,
the District Court concluded that John T. "can only be
educated effectively at St. Denis; he cannot receive an
appropriate education at [the public elementary school]." Id.
at *5.

On May 25, 2000, the DCIU appealed the Preliminary
Injunction and filed a motion to stay the injunction with
the District Court. The parties apparently agree that the
DCIU took no action to comply with the Preliminary
Injunction between May 8 and June 19, 2000. On June 19,
the District Court entered a second Order denying the
DCIU’s motion to stay and compelling the DCIU to"comply
with the preliminary injunction of May 8, 2000
FORTHWITH under penalty of sanctions for contempt of
court." The DCIU withdrew its appeal of the Preliminary
Injunction on November 27, 2000.
_________________________________________________________________

requires states, under certain circumstances, to provide disabled
children with a "free appropriate public education," the District Court
reasoned that the IDEA effectively incorporates any higher, SEA
standards into this obligation. (Implicitly, the District Court also
concluded that the Pennsylvania Statutes created such higher, SEA
standards.)

Indeed, this Court, along with many other courts, has interpreted
S 1401(8)(B) to incorporate heightened SEA requirements that are
consistent with federal law. See, e.g., Michael C. ex rel. Stephen C. v.
Radnor Twp. Sch. Dist., 202 F.3d 642, 652-53 (3d Cir. 2000) (noting that
a more stringent state pendency requirement would be incorporated into
the IDEA, but concluding that the SEA regulation at issue was not more
stringent than the IDEA). See also Geis v. Board of Educ., 774 F.2d 575,
581 (3d Cir. 1985) (holding that an identical provision in the IDEA’s
predecessor statute -- the Education of the Handicapped Act (EHA) --
incorporated heightened SEA standards).

                                6


Over the remainder of the summer and the beginning
months of the 2000-01 school year, the DCIU met with
John T. and his parents and worked to develop an
appropriate Individualized Education Program (IEP). During
this process, the DCIU concluded that John T. needed a
"life skills class" for 50% of his school day and that such a
class could not be provided at St. Denis. For that reason,
the DCIU issued a Notice of Recommended Assignment
(NORA), proposing to move John T. to a public school
within the Haverford Township School District.

John T.’s parents refused to approve the NORA. They
argued that the NORA and IEP conflicted with the
Preliminary Injunction’s mandate that necessary programs
and services be provided at St. Denis. On October 23, 2000,
the DCIU filed a motion with the District Court to either
vacate or modify the Preliminary Injunction in order to
allow the DCIU to provide necessary programs and services
at a public school.

The parties dispute the extent to which the DCIU
provided -- or even could have provided -- an itinerant
teacher and a teacher’s aide for John T. at St. Denis during
September 2000. John T. argues that no such services were
provided to him by the DCIU during that month and that
his parents located teacher’s aides at their own expense.
The DCIU contends that it did provide some itinerant
teacher services during September 2000 but that it had
difficulty locating teacher’s aides during that month
because of a shortage of job applicants.

Dissatisfied with the proposed IEP and NORA, John T.
sought and obtained a state administrative due process
hearing. Pennsylvania Special Education Hearing Officer
Linda Stengle presided over the hearing, which continued
off and on from November 6, 2000, until January 4, 2001.
On January 19, 2001, Hearing Officer Stengle released an
order reaffirming the importance of John T.’s continued
attendance at St. Denis and ordering the DCIU to modify
John T.’s IEP accordingly. The DCIU appealed Hearing
Officer Stengle’s order to the Pennsylvania Special
Education Due Process Appeals Review Panel, which
reversed Hearing Officer Stengle’s order on March 15, 2001.

                                7


Before the Review Panel had ruled, however, the District
Court ordered the DCIU to Show Cause why it should not
be held in contempt for failing to comply with the
Preliminary Injunction. On September 4, 2001, after
conducting a hearing, the District Court entered an order
finding the DCIU in civil contempt of the Preliminary
Injunction for failing to provide an itinerant teacher or
teacher’s aide during the month of September 2000. The
Contempt Order required the DCIU to pay John T. $1,100
to compensate him for providing services during September
2000 at his own expense. On September 18, 2001, the
DCIU appealed the Contempt Order.

Before the 2001-02 school year commenced, John T. and
the DCIU were able to develop a mutually agreeable IEP
pursuant to which John T. matriculated at a public school
in the Haverford Township School District. Having thereby
achieved the primary objective of his litigation before the
District Court, i.e., obtaining a satisfactory IEP, John T.
moved for voluntary dismissal of his Complaint pursuant to
Federal Rule of Civil Procedure 41(a). John T. also moved
for attorney’s fees of $136,172.79, arguing that he was a
"prevailing party" under the fee-shifting provision of the
IDEA. See 20 U.S.C. S 1415(i)(3)(B).

By Memorandum and Order dated November 7, 2001, the
District Court granted John T.’s motion for voluntary
dismissal but denied his request for attorney’s fees. See
John T. v. Delaware County Intermediate Unit, 2001 U.S.
Dist. LEXIS 18254 (E.D. Pa. Nov. 7, 2001) (John T. II). John
T. timely appealed the District Court’s refusal to award
attorney’s fees.

II. Jurisdiction and Standards of Review

The District Court had jurisdiction over the instant case
pursuant to 20 U.S.C. S 1415(i)(3)(A) (conferring jurisdiction
over IDEA actions specifically) and 28 U.S.C. S 1331 (federal
question jurisdiction). We have jurisdiction over this appeal
pursuant to 28 U.S.C. S 1291.

"The imposition of contempt is reviewed under an abuse
of discretion standard and will only be disturbed if there is
an error of law or a clearly erroneous finding of fact.

                                8


[citation omitted] We determine on a plenary basis whether
the district court committed an error of law." Harris v. City
of Philadelphia, 47 F.3d 1342, 1349 (3d Cir. 1995).

We typically review a decision to award or refuse
attorney’s fees under the IDEA’s fee-shifting provision for
an abuse of discretion. See Holmes ex rel. Holmes v.
Millcreek Twp. Sch. Dist., 205 F.3d 583, 589 (3d Cir. 2000).
However, where the legal standard applied by the district
court is in question - as it is here - our review is plenary.
See id.

III. Discussion

A. Contempt Order

The DCIU makes several challenges to the District
Court’s Contempt Order. First, the DCIU contends that,
because it either complied with the Preliminary Injunction
or at least made a good faith effort to comply, the Contempt
Order was unwarranted. Second, the DCIU argues that the
Preliminary Injunction was so vague and ambiguous that
neither the DCIU nor the District Court could determine
whether, as a matter of fact, the DCIU had complied with
it. Third, the DCIU argues that the Contempt Order was
criminal, not civil, so that the District Court erred by
applying the wrong burden of proof in the contempt
proceeding. Finally, the DCIU challenges the sufficiency of
the notice for the contempt hearing. For the reasons stated
below, we reject all of the DCIU’s contentions and affirm the
Contempt Order.

1. The District Court did not Err in Concluding that
       the DCIU Failed to Comply with the Preliminary
       Injunction.

"To prove civil contempt the court must find that (1) a
valid court order existed, (2) the defendant had knowledge
of the order, and (3) the defendant disobeyed the order."
Harris, 47 F.3d at 1326. The DCIU appeals the District
Court’s findings with respect to the third element, that the
DCIU disobeyed the Preliminary Injunction. Because the
District Court committed no clear error in making this
finding of fact, we will affirm the Contempt Order.

                                9


The Harris elements must be proven by "clear and
convincing" evidence, and ambiguities must be resolved in
favor of the party charged with contempt. See Robin Woods,
Inc. v. Woods, 28 F.3d 396, 399 (3d Cir. 1994); Harris, 47
F.3d at 1326. Notwithstanding this high evidentiary
standard, the District Court’s finding was sufficiently
supported. For example, the District Court credited the
testimony of John T.’s mother that the DCIU failed to
provide a teacher’s aide at all during September 2000.
Moreover, Dr. Nancy Wybranski, the DCIU’s own Assistant
Director of the Special Programs Division, admitted that
there were some days during September 2000 on which the
DCIU did not provide a teacher’s aide for John T.

The DCIU’s related argument that the Contempt Order
should be reversed because the DCIU made good faith
efforts to comply with the Preliminary Injunction is also
without merit. "Willfulness is not a necessary element of
civil contempt," and, accordingly, "evidence .. . regarding
. . . good faith does not bar the conclusion . . . that [the
defendant] acted in contempt." Harley-Davidson, Inc. v.
Morris, 19 F.3d 142, 148-49 (3d Cir. 1994).

2. The Preliminary Injunction is neither Vague nor
       Ambiguous.

The DCIU next argues that the Preliminary Injunction
was vague and ambiguous in its instruction to "provide
John T. with speech therapy, occupational therapy, a
teacher’s aide, and an itinerant teacher, for secular
subjects only, at levels reasonably calculated to afford
meaningful educational progress in his current school
program at St. Denis." John T. I, 2000 U.S. Dist. LEXIS
6169 at *31 (emphasis added). The DCIU argues that this
vagueness and ambiguity made compliance so difficult to
assess that the District Court committed legal error by
entering the Contempt Order. See, e.g., Ideal Toy Corp. v.
Plawner Toy Mfg. Corp., 685 F.2d 78, 84 (3d Cir. 1982)
(" "[T]he person enjoined must . . .‘receive fair and precisely
drawn notice of what the injunction actually prohibits.’ ")
(quoting Granny Goose Foods, Inc. v. Brotherhood of
Teamsters, 415 U.S. 423, 444 (1974)).

The DCIU’s argument is significantly undercut, however,
by the fact that "levels reasonably calculated to afford

                                10


meaningful educational progress" is essentially the same
standard by which any IEP is evaluated under the IDEA.
See Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238,
247 (3d Cir. 1999) (citing Board of Education v. Rowley, 458
U.S. 176, 192 (1982)). In other words, the DCIU’s
vagueness argument fundamentally attacks the courts’
interpretations of the IDEA. Because the DCIU regularly
develops and implements IDEA-compliant IEPs and the
DCIU is, we assume, aware that any one of these IEPs may
be subject to court review, we do not credit the DCIU’s
claim that it is confused by this description of the standard
required for John T.

Reading the language of the Preliminary Injunction in
light of relevant IDEA standards, the DCIU did have
adequate notice of what the Preliminary Injunction
required. See McComb v. Jacksonville Paper Co. , 336 U.S.
187, 191-92 (1949) (holding that an injunction not to
violate a statute is not too vague to serve as basis for
contempt order and enjoined party could have sought
clarification of injunction). Although the terms of the
Preliminary Injunction may be vague or ambiguous when
considered in a vacuum, they are given content by the vast
amount of administrative and judicial interpretation to
which they are subject. See Geis v. Board of Educ., 774
F.2d 575, 582 (3d Cir. 1985).

3. The Contempt Order is Civil in Nature.

The DCIU also argues that the District Court erred by
failing to provide it with procedural safeguards, including
the "reasonable doubt standard of proof " applicable in
criminal contempt proceedings. This argument assumes
that the contempt proceedings against the DCIU were
criminal in nature, notwithstanding the District Court’s
characterization of the proceedings as civil.

In advancing this argument, the DCIU relies on United
States v. Pozsgai, 999 F.2d 719, 735 (3d Cir. 1993), for the
proposition that "[t]he purpose and nature of the sanction,
rather than the label attached to it, determine whether [a
contempt order] is civil or criminal." Id. The Pozsgai court
held that a contempt order entered by a district court as a
"civil" order was, in actuality, a "criminal" order which

                                11


could not be entered without applicable procedural
safeguards. Essential to the Pozsgai court’s determination,
however, was its conclusion that the imposed sanctions
bore two criminal characteristics. First, they were
retroactive insofar as they sought to penalize previous
violations. Second, they were punitive -- as opposed to
remedial -- because they sought to vindicate the court’s
authority rather than to compensate an aggrieved party.
Pozsgai, 999 F.2d at 735. Because the Pozsgai sanctions
had these characteristics, the court determined that the
contempt could not be purged.

The sanction imposed by the Contempt Order -- payment
to John T. of $1,100 -- does not share the "criminal"
qualities identified in Pozsgai. While the sanction is
retroactive, it is not punitive in nature. The sanction was
intended to compensate John T. for the costs associated
with the DCIU’s failure to comply with the Preliminary
Injunction, i.e., the costs of providing a teacher’s aide for
one month.

If civil contempt sanctions are not designed to punish,
they may be retroactive. District courts hearing civil
contempt proceedings are afforded broad discretion to
fashion a sanction that will achieve full remedial relief. See
McComb, 336 U.S. 187, 193-94. Often this discretion
involves ordering payment for the costs of past non-
compliance -- as, for example, in alimony contempt
proceedings. See id. See also Pozsgai, 999 F.2d at 735
("Civil contempt is remedial in nature, serving to coerce
compliance with a court order or to compensate the other
party for losses sustained due to noncompliance.")
(emphasis added). Moreover, the DCIU could purge its
contempt by paying John T. the $1,100 and complying with
the mandates of the Preliminary Injunction.

The DCIU makes two arguments that the sanction was
punitive, neither of which is persuasive. First, the DCIU
argues that statements made by the District Court at the
outset of the contempt hearing show an intent to punish.
Specifically, the District Court stated that it was concerned
with maintaining respect for the courts and coercing the
DCIU’s compliance. Respect for the courts and coercion of
compliance, however, may be legitimate consequences of

                                12


any type of contempt proceeding. See Roe v. Operation
Rescue, 919 F.2d 857, 868 (3d Cir. 1990). Even if the
sanction had the tangential effect of increasing the DCIU’s
respect for the District Court and coercing it to comply with
the Preliminary Injunction, the statement alone does not
render the sanction punitive.

Second, the DCIU disputes the methodology by which the
District Court arrived at the $1,100 sanction. The DCIU
contends that if the calculation of the amount of the
sanction was improper, it could not have been intended to
compensate John T. Even if its methodology was not
perfect, however, the District Court did articulate the
relationship between the sanction and the actual damage
suffered by John T. -- $1,100 is one-twelfth of the annual
cost of providing a teacher’s aide. Accordingly, the District
Court’s measure is consistent with its stated compensatory
objective.

Because the sanction imposed by the Contempt Order is
not punitive, Pozsgai is distinguishable. Accordingly, there
is no reason to upset the District Court’s characterization
of the Contempt Order.

4. The Notice of the Contempt Hearing was
       Sufficient.
Finally, the DCIU contends that the District Court’s order
to Show Cause why the DCIU should not be found in
contempt was not sufficiently particular. Specifically, the
DCIU objects that the Show Cause Order neither identified
whether the contempt proceeding would be civil or criminal
in nature nor enumerated specific grounds for finding
contempt. The Show Cause Order did, however, refer to
both the Preliminary Injunction and Hearing Officer
Stengle’s report. Because Hearing Officer Stengle’s report
enumerated the specific instances in which the DCIU
allegedly failed to comply with the Preliminary Injunction,
we conclude that this notice was sufficient. Furthermore,
the Show Cause Order indicates that the District Court
conferred with both John T. and the DCIU on January 30,
2001, to discuss the implications of Hearing Officer
Stengle’s report. To the extent the DCIU was not clear
about the grounds on which it might be found in contempt

                                13


or the nature of the contempt proceedings, it could have
sought clarification at this conference.

In seeking more particular notice, the DCIU argues that
it should have been provided the notice required for
criminal contempt, giving reasonable time for preparation of
the defense. See Rule 42(b) of the Federal Rules of Criminal
Procedure. As explained above, however, the contempt
proceedings before the District Court were civil, not
criminal. Accordingly, the notice requirements of Rule 42(b)
are inapposite.

B. Attorney’s Fees

John T. argues that the District Court’s refusal to award
him attorney’s fees was reversible error to the extent that it
relied on Buckhannon Bd. & Care Home, Inc. v. West
Virginia Dept. of Health & Human Resources, 532 U.S. 598
(2001). John T. maintains that Buckhannon should not
preclude an award of attorney’s fees pursuant to the fee-
shifting provision of the IDEA for two reasons. First, he
contends that Buckhannon does not apply to IDEA.
Alternatively, and assuming arguendo that Buckhannon
does apply, he argues that he is a "prevailing party" entitled
to attorney’s fees under Buckhannon. We conclude first that
Buckhannon does apply to the IDEA fee-shifting provision
and second that the District Court did not err in declining
to award attorney’s fees to John T.

1. Background.

We begin our analysis of John T.’s appeal with the
"American Rule" that parties typically are responsible for
their own attorney’s fees. See Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 247 (1975). Given this rule,
we follow "a general practice of not awarding fees to a
prevailing party absent explicit statutory authority." Key
Tronic Corp. v. United States, 511 U.S. 809, 819 (1994). As
John T. and the District Court note, however, the fee-
shifting provision of the IDEA does provide such explicit
statutory authority. Section 1415(i)(3)(B) states,"In any
action or proceeding brought under this section, the court,
in its discretion, may award reasonable attorneys’ fees as
part of the costs to the parents of a child with a disability
who is the prevailing party."

                                14


The Supreme Court has held that "plaintiffs may be
considered ‘prevailing parties’ for attorney’s fees purposes if
they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing
suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st
Cir. 1978)). Accordingly, "[t]he touchstone of the prevailing
party inquiry must be the material alteration of the legal
relationship of the parties in a manner which Congress
sought to promote in the fee statute." Texas State Teachers
Ass’n v. Garland Independent School Dist., 489 U.S. 782,
792-93 (1989).4

More recently, the Supreme Court further clarified its
understanding of the term "prevailing party." In
Buckhannon, the Supreme Court held that a litigant whose
FFHA and ADA actions were mooted by intervening state
legislation was not a "prevailing party" for purposes of the
FFHA and ADA fee-shifting provisions. See 532 U.S. at 600-
01. Although the Buckhannon Court recognized that the
plaintiff ’s suit might have been a "catalyst" of the
defendant’s voluntary, legislative change, it held that the
so-called "catalyst theory" was an insufficient basis on
which to confer "prevailing party" status. See id. at 602.
While the legislative change indisputably altered the legal
relationship of the parties, it lacked an essential feature --
namely, a "judicial imprimatur." Id. at 605 (emphasis
omitted).

The Buckhannon Court concluded that in order to be a
"prevailing party," a party must be "successful" in the sense
that it has been awarded some relief by a court . Id. at 603-
604. This concept of "success," however, is not inconsistent
with a defendant’s concession or voluntary compliance. The
Court acknowledged that a party benefitting from a
settlement agreement, for example, could be a "prevailing
party," provided the "change in the legal relationship of the
_________________________________________________________________

4. Although Hensley and Texas State Teachers Ass’n interpreted the fee-
shifting provision of 42 U.S.C. section 1988, Hensley noted that its
standards were "generally applicable in all cases in which Congress has
authorized an award of fees to a ‘prevailing party.’ " Hensley, 461 U.S. at
433, n.7.

                                15


parties" was in some way "judicially sanctioned." Id. at 605
(emphasis added). The Supreme Court then reconciled this
rule with its previous holdings, noting that it had"only
awarded attorney’s fees where the plaintiff ha[d] received a
judgment on the merits . . . or obtained a court-ordered
consent decree." 532 U.S. at 605.

Finally, in J.O. v. Orange Twp. Bd. of Educ., 287 F.3d
267 (3d Cir. 2002), we considered whether an IDEA litigant
who obtained a stay-put order5 was a "prevailing party" for
purposes of the IDEA fee-shifting provision. Noting that
stay-put orders "function[ ], in essence as an automatic
preliminary injunction" to maintain the status quo during
the pendency of proceedings, we focused on the interim
nature of the relief. Id. at 272 (quoting Drinker v. Colonial
Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996)) (alteration in
original). Although we recognized the importance of the
interim relief that the IDEA provides, we held that such
relief could only form the basis of an attorney’s fee award
if it was in some way "merit-based." Id. at 273-74. Because
the interim relief obtained in J.O. did not involve a
resolution on the merits of a claim, we held that J.O. was
not a prevailing party. See id. Significantly, the J.O.
decision was decided on this independent basis and
without reference to Buckhannon.

2. Buckhannon Applies to the IDEA Fee-Shifting
       Provision.

We hold that Buckhannon applies to attorney’s fee claims
brought under the IDEA fee-shifting provision. In doing so,
we follow the reasoning articulated by the Second Circuit in
J.C. v. Regional School Dist. 10, Bd. of Educ., 278 F.3d 119
(2d Cir. 2002).

We agree with J.C. that Buckhannon heralded its wider
applicability -- although it dealt only with the fee-shifting
provisions of the FFHA and the ADA. Specifically,
_________________________________________________________________

5. In relevant part, the stay-put provision of the IDEA provides that
"during the pendency of any proceedings conducted pursuant to this
section, unless the State or local educational agency and the parents
otherwise agree, the child shall remain in the then-current educational
placement of such child . . . ." 20 U.S.C. S 1415(j).

                                16


Buckhannon noted that Congress has used identical
"prevailing party" language in numerous fee-shifting
provisions, see 532 U.S. at 602-03 (expressly identifying
the Civil Rights Act of 1964, the Voting Rights Act
Amendments of 1975 and the Civil Rights Attorney’s Fees
Awards Act of 1976 as examples), and explained that the
Supreme Court interprets these fee-shifting provisions
consistently. See 532 U.S. at n.4 (citing Hensley, 461 U.S.
at 433, n. 7 ("[The standards used to interpret the term
"prevailing party" are] generally applicable in all cases in
which Congress has authorized an award of fees to a
‘prevailing party.’ ") (emphasis added)).
The fee-shifting provision of the IDEA is no exception.
The term "prevailing party" as it is used in Section
1415(i)(3) is not modified in any way. Moreover, as the J.C.
court noted, the IDEA’s legislative history shows that
Congress intended that courts interpret the term"prevailing
party" consistently with other fee-shifting statutes,
including those expressly mentioned in Buckhannon. See
278 F.3d at 124. When the fee-shifting provision was added
to the IDEA’s predecessor statute, the Senate Labor and
Human Resources Committee explained "it is the
committee’s intent that the terms ‘prevailing party’ and
‘reasonable’ be construed consistently with the U.S.
Supreme Court’s decision in [Hensley]." S. Rep. No. 99-112,
at 13 (1986), reprinted in 1986 U.S.C.C.A.N. 1798, 1803
(footnote omitted).

John T.’s arguments to the contrary ask us to distinguish
the IDEA fee-shifting provision from the fee shifting
provisions at issue in Buckhannon. John T. argues that
S1415(i)(3), unlike the fee-shifting provisions of the ADA
and the FFHA, clarifies at great length the effect of
"settlement offers" and "final resolution" on attorney’s fee
calculations. See, e.g., 20 U.S.C. S 1415(i)(3)(D)-(G). He
argues that this clarification is consistent with the IDEA’s
policy of encouraging parents and school boards to pursue
all types of amicable resolution -- whether or not judicially
sanctioned. From this premise, he then concludes that
Congress also intended to make attorney’s fees available for
all plaintiffs who achieve such amicable resolutions.

                                17


To the extent that John T. attempts to resurrect the
"catalyst theory" as a basis of recovering attorney’s fees, his
argument is "simply not viable after Buckhannon, which
considered and rejected various policy arguments in favor
of the catalyst theory." J.C., 278 F.3d at 124. Additionally,
as the J.C. court noted,

       it is difficult to reconcile [the] policy argument for
       awarding fees pursuant to informal settlements with
       the fact that, even before Buckhannon, Congress
       deliberately chose not to allow the recovery of
       attorneys’ fees for participation in IEP proceedings that
       were not convened as a result of an administrative
       proceeding or judicial action. 20 U.S.C.
       S 1415(i)(3)(D)(ii). The IEP Team is a mechanism for
       compromise and cooperation rather than adversarial
       confrontation. This atmosphere would be jeopardized if
       we were to encourage the participation of counsel in
       the IEP process by awarding attorneys’ fees for
       settlements achieved at that stage.

Id. at 124-25.

Moreover, the provisions that John T. cites for support do
not relate to the "prevailing party" requirement. Rather,
SS 1415(i)(3)(D) through (G) define situations in which
attorney’s fees may be prohibited or reduced, e.g., when a
parent has unjustifiably rejected a settlement offer or when
a parent has unreasonably protracted the final resolution.

John T. contends that our reading of Section 1415(i)(3)
will create a perverse incentive for parents to protract
litigation with the hope of receiving some previously-
incurred attorney’s fees rather than settling with the
certainty of receiving no attorney’s fees. This argument
"puts the cart before the horse" as it assumes that litigation
decisions are driven by a desire to collect or to avoid paying
attorney’s fees -- and not by the litigants’ interests. Even
under fee-shifting regimes such as S 1415(i)(3) and the
"generous formulation" that the Supreme Court gives the
term "prevailing party," Hensley, 461 U.S. at 433,
attorney’s fee awards ultimately are awarded at a court’s
discretion. Because attorney’s fees are never guaranteed, we
question that litigation would be protracted for the sole
purpose of winning an award.

                                18


Finally, to the extent that John T. invites us to interpret
anew the term "prevailing party" in light of the IDEA
policies, we decline to do so. Section 1415(i)(3) in no way
alters the term’s established meaning. The Buckhannon
Court expressly warned that

       [g]iven the clear meaning of "prevailing party" in the
       fee-shifting statutes, we need not determine which way
       . . . various policy arguments cut. In Alyeska , . . . we
       said that Congress had not "extended any roving
       authority to the Judiciary to allow counsel fees as costs
       or otherwise whenever the courts might deem them
       warranted." To disregard the clear legislative language
       and the holdings of our prior cases on the basis of . . .
       policy arguments would be a similar assumption of a
       "roving authority."

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

3. The District Court did not err in Declining to
       Award John T. Attorney’s Fees because John T. is
       not a Prevailing Party.

Having concluded that Buckhannon controls the
interpretation of "prevailing party" as it is used in
S 1415(i)(3)(B), we next consider whether John T. is, in fact,
a prevailing party to whom attorney’s fees may be awarded.
Because we conclude that he is not, we will affirm the
District Court’s Order denying him attorney’s fees. In doing
so, however, we adopt a somewhat broader view of
"prevailing party" than did the District Court which held
that a prevailing party must have (1) received a judgment
on the "merits" of the litigation, or (2) obtained a court-
ordered consent decree. Our broader view is consistent with
our holding in Truesdell v. Phila. Hous. Auth. , 290 F.3d 159
(3d Cir. 2002), where we held that a stipulated settlement
could confer prevailing party status under certain
circumstances. See id. at 165 (finding stipulated settlement
"judicially sanctioned" under Buckhannon where it (1)
contained mandatory language, (2) was entitled "Order," (3)
bore the signature of the District Court judge, not the
parties’ counsel, and (4) provided for judicial enforcement).

Under this interpretation, John T. is still not a prevailing
party under Buckhannon and J.O. We begin our analysis by

                                19


focusing on John T.’s successes. Specifically, John T.
obtained three forms of relief during the course of this
litigation: the Preliminary Injunction, the Contempt Order,
and the acceptable IEP that prompted him to seek a
voluntary dismissal. As discussed below, none of these
forms of relief will serve as the basis for conferring
prevailing party status upon John T. We address each in
turn.

       a. The Preliminary Injunction

The Preliminary Injunction is an insufficient basis on
which to award attorney’s fees to John T. because it is
interim relief not based on the merits of John T.’s claims.
Like the stay-put order at issue in J.O., the Preliminary
Injunction was "designed to maintain the status quo during
the course of proceedings." J.O., 287 F.3d at 272.
Specifically, it required the DCIU to continue providing
John T. with special education programs and related
services at St. Denis.

Also like the stay-put order in J.O., the Preliminary
Injunction was not merits-based. Although the District
Court concluded that John T. "ha[d] shown a reasonable
probability of success on the merits," it did not resolve any
merit-based issue in John T.’s favor. John T. I , 2000 U.S.
Dist. LEXIS 6169 at *9. In fact, all of John T.’s claims
against the DCIU ultimately were dismissed with prejudice
at his own request. See John T. II, 2001 U.S. Dist. LEXIS
18254 at *23.

Accordingly, J.O. controls, and John T. cannot be deemed
a prevailing party based on the Preliminary Injunction
alone. J.O. binds us independently, and Buckhannon does
not require a different result. While J.O. presents IDEA
claimants with a hurdle unidentified in Buckhannon, it is
not inconsistent with Buckhannon. Before this Court,
therefore, the requirements of both J.O. and Buckhannon
govern claims brought under the IDEA fee-shifting
provision.

       b. The Contempt Order

Similarly, the Contempt Order will not confer prevailing
party status upon John T. This relief is, however, more

                                20
difficult to analyze within the framework of our existing
precedent. While the Contempt Order certainly effected a
"judicially sanctioned change in the legal relationship of the
parties," Buckhannon, 532 U.S. at 605, it is difficult to
ascertain whether it is "interim" or "merits-based" relief in
the sense contemplated by J.O., 287 F.3d at 273.

On one hand, the District Court finally determined the
DCIU’s contempt by applying the "merits" of civil contempt
-- that (1) a valid court order existed, (2) the DCIU knew of
the order, and (3) the DCIU disobeyed the order. See Harris,
47 F.3d at 1326. Accordingly, the Contempt Order may be
characterized as both non-"interim" and "merits-based"
with respect to the law governing contempt orders
generally.

On the other hand, John T. seeks attorney’s fees
pursuant to the IDEA fee-shifting provision -- and not, for
example, as an additional sanction for the DCIU’s civil
contempt. From this perspective, it is decisive that the
Contempt Order was merely a mechanism to enforce the
Preliminary Injunction. With respect to the IDEA claims,
therefore, the Contempt Order can be neither less"interim"
nor more "merits-based" than the Preliminary Injunction,
itself.

We conclude that we must consider the Contempt Order
in its relation to the underlying relief that it enforces. In
many respects, the scope of any civil contempt order is
both defined and limited by the relief it enforces. For
example, it is well settled that the viability of a civil
contempt order entered either to remedy past non-
compliance or to coerce future compliance with a
preliminary injunction hinges on the validity of the
underlying injunction. See United States v. United Mine
Workers, 330 U.S. 258, 295 (1947) ("The right to [a civil
contempt order’s] remedial relief falls with an injunction
which events prove was erroneously issued."); Latrobe Steel
Co. v. United Steelworkers of America, 545 F.2d 1336,
1345-46 (3d Cir. 1976) (extending rule to coercive-- as
opposed to remedial -- civil contempt orders). Additionally,
under some circumstances, the appealability of a civil
contempt order is contingent on the finality of the
proceedings giving rise to the order. See, e.g. , 15B Charles

                                21


Alan Wright & Arthur R. Miller, Federal Practice and
Procedure S 3917 (1992). We extend this general principle
to conclude that a contempt order may not confer
prevailing party status for purposes of the IDEA fee-shifting
provision unless it enforces some IDEA relief that could,
itself, confer prevailing party status. In any other situation,
the party seeking the contempt order must seek relief for
costs and fees as appropriate in the contempt proceeding --
as indeed the District Court indicated in denying the
attorney’s fee under IDEA: "Plaintiffs, should they
successfully defend the contempt finding on appeal, may
resubmit a motion for fees on that issue alone . . .."

The Supreme Court’s instruction to consider that"which
Congress sought to promote in the fee statute" underscores
the importance of focusing on the underlying IDEA relief.
Texas State Teachers Ass’n, 489 U.S. at 793. By enacting
the IDEA fee-shifting provision, Congress surely did not
seek to provide attorneys fees to any party who could prove
the "merits" of civil contempt independent of an IDEA
success. More likely, Congress sought to provide fees only
to those who prevailed with respect to an IDEA claim. When
the IDEA fee-shifting provision authorizes attorneys fees "in
any action or proceeding brought under this section," it not
only limits the universe to which it applies but also clarifies
the type of proceeding on which a party must"prevail." 20
U.S.C. S 1415(i)(3). Under J.O., the Preliminary Injunction is
an insufficient basis on which to deem John T. a prevailing
party. Accordingly, the Contempt Order that enforces it is
also insufficient.

       c. The Acceptable IEP

Finally, John T. is not a prevailing party by virtue of his
having obtained an acceptable IEP. Although John T.
undoubtedly realized an objective of his litigation upon
obtaining an acceptable IEP which placed him in the public
schools, this result was not "judicially sanctioned" as
required by Buckhannon. 532 U.S. at 605. John T. and the
DCIU developed the IEP through negotiations out of court,
and no court has endorsed the agreement with a "judicial
imprimatur." Id.

                                22


John T. argues to the contrary that we are not bound by
Buckhannon’s requirement that settlements must be
"judicially sanctioned" in order to confer prevailing party
status. For this proposition, he cites Barrios v. California
Interscholastic Federation, 277 F.3d 1128 (9th Cir.) cert.
denied 123 S.Ct. 98 (2002).

In Barrios, the Ninth Circuit Court of Appeals dismissed
Buckhannon’s conclusions regarding settlement agreements
as dictum. See 277 F.3d at n.5. In doing so, however, the
court distinguished Buckhannon on very narrow grounds. It
argued that Buckhannon applies only where litigation is a
catalyst for policy change, such as intervening legislation,
and not where litigation is a catalyst for mutually agreed
upon settlement. See id. (In fact, the Barrios court
discusses settlement as if it fell outside of the"catalyst
theory" framework altogether.) Instead, the Barrios court
relied on the Ninth Circuit’s pre-Buckhannon rule that
settlements could confer prevailing party status with or
without judicial sanction. See id. at 1134 (citing Fischer v.
SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000)).

We will not follow Barrios’s narrow reading of
Buckhannon. Although Buckhannon did warn against
relying on dictum, see 532 U.S. at n.5 (implying that the
"catalyst theory," itself, was spawned from Supreme Court
dictum), it also cast a very broad net. By expressly linking
its holding to other "prevailing party" fee-shifting statutes,
the Buckhannon Court encourages an expansive reading.
See id. at 602-03. Moreover, we read Buckhannon to reject
the "catalyst theory" whole hog. While Barrios differentiates
between policy changes and changes achieved through
voluntary settlement, the Supreme Court’s own
understanding of the "catalyst theory" does not reflect such
a distinction. See 532 U.S. at 601 ("[T]he ‘catalyst theory’
. . . posits that a plaintiff is a ‘prevailing party’ if it achieves
the desired result because the lawsuit brought about a
voluntary change in the defendant’s conduct.").

IV. Conclusion

We will affirm the District Court’s Contempt Order. The
District Court’s finding that the DCIU was in contempt is

                                23


sufficiently supported. The Preliminary Injunction was not
overly vague or ambiguous. The DCIU was not entitled to
the procedural safeguards applicable in criminal contempt
proceedings. In addition, the Show Cause Order provided
the DCIU with sufficient notice of the contempt hearing.

We will also affirm the District Court’s denial of the
petition for attorney’s fees. Under J.O. and Buckhannon,
which we apply expressly to the IDEA fee shifting provision,
John T. is not a "prevailing party" by virtue of his having
obtained the Preliminary Injunction, the Contempt Order or
the acceptable IEP.

A True Copy:
Teste:

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

                                24
