                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                   ___________
                                   No. 96-3669
                                    No. 96-3886
                                   ___________

Eric Warner, a minor, by Linda Warner, *
his mother,                            *
                                       *
      Plaintiff - Appellee/            *
      Cross-Appellant,                 * Appeal from the United States
                                       * District Court for the
      v.                               * District of Minnesota.
                                       *
Independent School District No. 625,   *
                                       *
      Defendant - Appellant/           *
      Cross-Appellee.                  *
                                  ___________

                                Submitted: June 13, 1997
                                    Filed: January 22, 1998
                                  ___________

Before LOKEN, REAVLEY,* and JOHN R. GIBSON, Circuit Judges.
                            ___________

LOKEN, Circuit Judge.

       After completing state administrative proceedings against Independent School
District No. 625, which operates the St. Paul public schools, Linda Warner commenced
this action to recover her attorneys’ fees and costs as a prevailing party under the
Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"). The



      *
       The HONORABLE THOMAS M. REAVLEY, United States Circuit Judge for
      the Fifth Circuit, sitting by designation.
district court awarded Warner $63,501.45 in fees and $5,420.00 in costs. The School
District appeals. Concluding that Warner is not a “prevailing party,” we reverse.

                                           I.

       Warner's son Eric suffers from an epileptic seizure disorder. For IDEA
purposes, he is "handicapped" and entitled to "special education and related services."
See 20 U.S.C. § 1400(a)(1). In early 1994, while Eric was enrolled in the St. Paul
public schools in third grade, an assessment team classified him as “E/BD,” eligible for
special education services because of an emotional/behavioral disorder. However, the
team did not classify him as eligible for services because of a speech or language
disorder, or as other health impaired (“OHI”). The School District formulated an
Individual Education Plan (“IEP”) based upon the E/BD classification and, with
Warner’s approval, transferred Eric to a public school offering a specialized E/BD
classroom. Eric’s behavior and self-control improved that spring.

       For the 1994-95 school year, Warner and the School District agreed to place Eric
in another school offering an E/BD classroom. By mid-year, Warner was unhappy with
Eric's public school education, largely over issues unrelated to his special education
needs. She hired counsel and in January 1995 made numerous requests, including that
Eric spend more of the school day “mainstreamed” in regular education classes. IDEA
and Minnesota law declare a preference for educating handicapped children "in regular
educational programs." 20 U.S.C. § 1414(a)(1)(C)(iv); see Minn. Stat. § 120.17, subd.
3a(4). Therefore, the School District reconvened Eric's IEP team to consider this issue.

       In February, Warner removed Eric from public school and placed him in private
school. In early March, the School District proposed a revised IEP for Eric's continued
public school education. Warner objected, arguing that (i) Eric should not be classified
E/BD handicapped; (ii) he should be classified OHI handicapped or as a traumatic brain
injury student; (iii) he is entitled to speech and language therapy; (iv) the School

                                          -2-
District transferred him to a more restrictive E/BD program contrary to the 1994 IEP;
(v) the School District denied Eric a "free appropriate public education"; and therefore
(vi) Warner must be reimbursed for Eric's private school expenses. The School District
rejected those objections.

       Following unsuccessful mediation, Warner requested the due process hearing
mandated by IDEA and Minnesota law. See 20 U.S.C. § 1415(b)(2); MINN. STAT. §
120.17 subd. 3b(e). After that hearing, the state Hearing Officer concluded that the
School District had properly classified Eric as E/BD handicapped, had provided Eric
"an appropriately individualized program designed to provide educational benefit," and
had placed Eric in an appropriate, partially mainstreamed education program in a
physically safe environment. Therefore, the School District need not reimburse his
private school expenses. However, the Hearing Officer ordered the School District to
provide ten meetings of a “facilitated friendship group” to remedy its failure to keep
Warner informed and to update Eric's IEP prior to March 1995.

         Warner appealed this decision to a state Hearing Review Officer. See 20 U.S.C.
§ 1415(c); MINN. STAT. § 120.17 subd. 3b(g). In a lengthy decision, the Hearing
Review Officer concluded that the School District had properly classified Eric as E/BD
handicapped, adopted IEPs providing educational benefit, provided appropriate
placement in a least restrictive, safe environment, and provided Eric a free appropriate
public education. Therefore, the School District need not reimburse Warner for Eric’s
private school expenses. The Hearing Review Officer reversed the Hearing Officer's
friendship group remedy because the School District's procedural irregularities had
neither deprived Eric of educational benefit nor infringed Warner’s right to participate
in the IEP process. However, despite concluding that the School District had complied
with IDEA, the Hearing Review Officer ordered the School District to amend Eric's
IEP (i) to reflect Warner's choice of school, at her expense if private school is chosen;
(ii) to permit Warner to elect the Battle Creek Eisenmenger school, with "appropriate
nursing services," if she returns Eric to public school; (iii) to add OHI "as a secondary

                                          -3-
handicapping condition"; and (iv) to conduct an independent educational assessment
of Eric and reconvene the IEP team "to implement the results of the assessment."

       Neither party appealed the Hearing Review Officer’s decision, and it became
final. See 20 U.S.C. §1415(e)(1); MINN. STAT. § 120.17 subd. 3b(h). Warner then
commenced this action, seeking an award of $158,753.63 in attorneys’ fees and $5,420
in expert witness fees as the prevailing party under IDEA. See 20 U.S.C. §
1415(e)(4)(B). The district court concluded that Warner "did not succeed . . . on the
actual merits of the claim or the relief sought," that the School District "did comply
with the IDEA," and that "the relief achieved is not mandated by IDEA." Nevertheless,
the court held that Warner was a prevailing party entitled to an award of attorneys’ fees
because the state administrative proceedings had “resulted in a material alteration of
the legal relationship” between the parties. Concluding that Warner's "$158,000 fee
request is far in excess of a reasonable amount in light of the results obtained," the
court reduced the request by sixty percent and awarded attorneys’ fees of $63,501.45
plus expert witness fees of $5,420.1 The School District appeals. Warner cross-
appeals, seeking the full $158,000 requested.

                                            II.

      It is settled in this and other circuits that a parent who has prevailed at the state
administrative level may file a federal court action seeking a reasonable attorneys' fee
award under IDEA. See Johnson v. Bismarck Pub. Sch. Dist., 949 F.2d 1000, 1003
(8th Cir. 1991). If the district court applied the correct legal standard in determining

      1
        § 1415(e)(4)(B) does not expressly authorize an award of expert witness fees.
The House Conference Committee Report said such fees could nonetheless be
awarded, legislative history the Supreme Court has described as "an apparent effort to
depart from ordinary meaning and to define a term of art." West Va. Univ. Hosps.,
Inc. v. Casey, 499 U.S. 83, 91 n.5 (1991). Given our disposition of this case, we need
not address whether such an award is consistent with Casey.

                                           -4-
a “prevailing party,” which is of course a question of law, we review its award of
attorneys' fees for abuse of discretion. See Yankton Sch. Dist. v. Schramm, 93 F.3d
1369, 1377 (8th Cir. 1996); Association for Retarded Citizens v. Schafer, 83 F.3d
1008, 1010 (8th Cir.), cert. denied, 117 S. Ct. 482 (1996). Decisions construing this
term in the civil rights fee-award statute, 42 U.S.C. § 1988, “are generally applicable
in all cases in which Congress has authorized an award of fees to a ‘prevailing party.’”
Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7 (1983).

       In Hewitt v. Helms, 482 U.S. 755, 760 (1987), the Supreme Court declared that
"plaintiff [must] receive at least some relief on the merits of his claim before he can be
said to prevail" for purposes of § 1988. The Court confirmed that principle in Texas
State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 791
(1989), explaining that a prevailing party is "one who has succeeded on any significant
claim affording it some of the relief sought." Most recently, in Farrar v. Hobby, 506
U.S. 103, 111 (1992), the Court reiterated that, “to qualify as a prevailing party, a civil
rights plaintiff must obtain at least some relief on the merits of his claim.”

        Acknowledging that Warner did not succeed on the merits of her IDEA claim,
the district court awarded attorneys' fees because the Hearing Review Officer's order
"materially altered the legal relationship of the parties." That phrase indeed appears in
the Supreme Court's prevailing party decisions. But it is the standard by which the
Court measures how much relief on the merits is sufficient to justify at least a partial
fee award; it is not a basis for awarding fees to a plaintiff who did not prevail on the
merits of any claim under the fee-shifting statute in question. As the Court explained
in Farrar, "plaintiff 'prevails' when actual relief on the merits of his claim materially
alters the legal relationship between the parties by modifying the defendant's behavior
in a way that directly benefits the plaintiff." 506 U.S. at 111-12. Thus, the district
court misapplied the governing prevailing party standard.




                                           -5-
       Turning to the facts of this case, the Hearing Review Officer expressly concluded
that the School District did not violate IDEA. By appropriately classifying Eric's
educational handicap, by developing IEPs that provided Eric education benefit, by
placing Eric in appropriate school and classroom facilities, by affording Eric suitable
mainstreaming opportunities, and by following procedures that allowed Warner to
participate in the IEP process, the School District provided a free appropriate public
education, and thereby met its substantive and procedural obligations under IDEA. See
generally Board of Educ. v. Rowley, 458 U.S. 176, 187-204 (1982); Fort Zumwalt Sch.
Dist. v. Clynes, 119 F.3d 607 (8th Cir. 1997). Whatever relief the Hearing Review
Officer provided was not relief on the merits of Warner's IDEA claim.

       The Hearing Review Officer's decision culminated state administrative
proceedings. While those proceedings were an integral part of the IDEA regime,2 the
Minnesota hearing officers were charged with enforcing state law, including but not
limited to the mandates of IDEA. See Minn. Stat. §§ 120.17, subd. 3a, subd. 3b(f)(3),
subd. 3b(g)(3); Minn. R. 3525.4400. The Hearing Review Officer's authority to order
the School District to amend Eric's IEP in the absence of an IDEA violation obviously
derived from state law.3 Minnesota could have authorized an award of attorneys' fees
under state law, but it has not done so.




      2
       The administrative proceedings satisfy Minnesota's obligation to provide due
process hearings to parents if the State wishes to be eligible for federal assistance in
educating handicapped children. See § 1415(a). A party aggrieved by the
administrative decision may appeal to either federal or state court. See § 1415(e)(2).

      3
       The Hearing Review Officer expressly based his order for an independent
educational assessment on Minn. R. 3525.4000. He did not cite authority for ordering
the additional amendments to Eric's IEP, but Minn. R. 3525.4400, subp. 3, seems to
authorize such relief regardless of the School District's compliance with IDEA.

                                           -6-
        From the standpoint of a fee award under IDEA, this situation is most analogous
to § 1988 cases in which a federal court renders judgment against plaintiff on the
federal claims but grants relief under pendent state law claims. In such cases, other
circuits "have uniformly held that a plaintiff who loses on the merits of its federal civil
rights claim is not a ‘prevailing party’ for purposes of an award of attorneys’ fees under
42 U.S.C. § 1988, even if it prevails on a related pendent state law claim.” National
Org. for Women v. Operation Rescue, 37 F.3d 646, 653-54 (D.C. Cir. 1994); see
Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir.), cert. denied, 502 U.S. 814 (1991), and
cases cited.4 We invoked this principle in denying attorneys' fees under § 1988 in Reel
v. Arkansas Department of Correction, 672 F.2d 693, 697-98 (8th Cir. 1982). We
noted that the legislative history to § 1988 carved an exception to the principle for
cases in which relief is granted on a pendent non-federal claim to avoid reaching the
federal constitutional claim. But that exception does not apply here because the
Hearing Review Officer expressly rejected Warner's IDEA claims before granting relief
under state law. Similarly, we have noted that a fee award may be appropriate under
the catalyst theory if defendant provides a remedy to avoid litigating a federal claim.
But Warner may not invoke that theory because “[a] party . . . who litigates to
judgment and loses on all of his claims cannot be said to have ‘prevailed’” as a catalyst.
A.J. by L.B. v. Kierst, 56 F.3d 849, 865 (8th Cir. 1995).

       For the foregoing reasons, we conclude that Warner is not entitled to an award
of attorneys' fees and costs as a prevailing party under 20 U.S.C. § 1415(e)(4)(B)
because she lost on the merits of her IDEA claims.




       4
         We find support for these decisions in Bray v. Alexandria Women's Health
Clinic, 506 U.S. 263, 285 (1993). After concluding that plaintiffs were not entitled to
relief under the federal civil rights act, the Court denied plaintiffs attorneys' fees under
§ 1988 and then remanded for further consideration of pendent state law claims.

                                            -7-
                                           III.

       Even if Warner were an IDEA prevailing party, we would substantially reduce
the award of $63,500 in attorneys' fees. Prior to the administrative hearing, the School
District made a settlement offer that included virtually all the relief later ordered by the
Hearing Review Officer, plus $8,000 in compensation and attorneys' fees. At the
subsequent hearing, Warner made it clear that she was dissatisfied with the School
District for many reasons other than her IDEA complaints and intended to keep Eric
in private school. In both her prehearing and posthearing briefs, reimbursement of
private school expenses was the relief requested.

        Viewed in this context, it is apparent that the relief ordered by the Hearing
Review Officer did not provide immediate benefit. Rather, it was designed to
encourage Warner to return Eric to public school by clarifying, in rather specific terms,
how the School District would in that event meet its obligations under state law and the
IDEA -- by performing a new educational assessment, as state law requires
periodically, see MINN. R. 3525.2750, subpart 1; by amending Eric's IEP consistent
with the new assessment; and by placing Eric at a public school facility of Warner's
choosing that would provide him a free appropriate public education in terms of special
education and related services. “Whatever relief the plaintiff secures must directly
benefit him at the time of the judgment or settlement.” Farrar, 506 U.S. at 111. Merely
facilitating reentry into public school is not enough. Jodlowski v. Valley View
Community Unit Sch. Dist. #365-U, 109 F.3d 1250, 1254 (7th Cir. 1997). While the
Hearing Review Officer's relief was not completely voluntary, like that in Combs v.
School Board, 15 F.3d 357, 360 (4th Cir. 1994), and Schmidt v. Special School District
No. 1, 77 F.3d 1084, 1085 (8th Cir. 1996), it differed very little from what the School
District voluntarily offered in settlement before the administrative hearing, which is
highly relevant to the fee award issue. See § 1415(e)(4)(D), (F). In these
circumstances, an award of $158,000, or even $63,500, is excessive. See Parents of


                                            -8-
Student W v. Puyallup Sch. Dist., 31 F.3d 1489, 1498 (9th Cir. 1994); Johnson v.
Bismarck Pub. Sch. Dist., 949 F.2d 1000, 1003-04.

                                           IV.

       After reviewing the administrative record, we understand Warner's many
frustrations with the School District that led her to place Eric in private school.
Unfortunately, while her grievances were many, her IDEA claims were unsound.
When Warner turned down the School District's IDEA-complying settlement offer and
placed Eric in private school, she did so at her own financial risk, including the risk of
paying her own attorneys' fees to pursue IDEA claims that ultimately failed. See
School Comm. v. Department of Educ., 471 U.S. 359, 373-74 (1985); Salley v. St.
Tammany Parish Sch. Bd., 57 F.3d 458, 468 (5th Cir. 1995). Accordingly, the
judgment of the district court is reversed and the case remanded to the district court
with instructions to enter judgment for the School District.

JOHN R. GIBSON, Circuit Judge, dissenting.

      I respectfully dissent. I would affirm the judgment of the district court and
award the fee as reduced in the district court order.

      The court today bases its ruling primarily on the view that the Hearing Review
Officer ordered a remedy "obviously derived from state law," and, looking to cases
under 42 U.S.C.A. § 1988 (West Supp.1997), the district court could not award a fee
where the plaintiff only prevailed on state law claims.

       The court today improperly characterizes Warner's relief as grounded exclusively
in state law, based on the court's misapprehension of the reach of the Individuals
with Disabilities Education Act. The Act, 20 U.S.C. §§ 1400-1491o, sets out a
program of federal assistance to state and local efforts to meet the educational

                                           -9-
needs of disabled children, but it conditions that assistance on state compliance with
certain procedures and safeguards. See 20 U.S.C. § 1412 (conditioning state eligibility
for assistance on complying with numerous conditions).

       While the district court was correct in referring to the independent educational
assessment ordered by the Hearing Review Officer as authorized by Minnesota
administrative rule, the state regulation must be viewed in its IDEA context. The IDEA
specifically requires states to allow parents an opportunity to obtain an independent
educational evaluation of the child. 20 U.S.C. § 1415(b)(1)(A); see 34 C.F.R. §
300.503 (1997). Federal regulations authorize an independent educational evaluation
conducted by a qualified examiner not employed by the public agency responsible for
the child's education, and subsection (d) specifically authorizes a Hearing Officer to
request such an evaluation. 34 C.F.R. § 300.503(d). This is precisely what was
ordered in this case.

      Further, the provision of special education services at the private school,
Tesseract, was, as stated by the district judge, consistent with the requirements of the
IDEA. The Hearing Review Officer specifically ordered nursing services at the District
School in accordance with state and federal law. The Hearing Review Officer also
ordered that the IEP designate the student's primary disorder as E/BD
(emotional/behavioral disorder), but that OHI (other health impairment) be added as a
secondary handicapping condition.

       While the district court and the Hearing Review Officer referred only to the
Minnesota regulations, under the cooperative arrangement fostered by IDEA, the relief
granted Eric sprang not only from the state statutes and regulations made to effectuate
the federal programs, but was directly required by the federal statutes and regulations
as well.




                                         -10-
       The court today looks at only one-half of the coin in looking to those portions
of the Hearing Review Officer's opinion and the district court order stating that Warner
had not succeeded in showing a violation of IDEA. To the contrary, relief authorized
by both the IDEA and Minnesota statutes and regulations was the basis for the Hearing
Review Officer's order.

      The case before us is therefore distinguishable from Reel v. Arkansas Dept. of
Corrections, 672 F.2d 693, 697-98 (8th Cir. 1982), in which the plaintiff lost his federal
claim on the merits, but sought attorneys' fees because of success on pendent state
common law claims.

       The court recognizes that 20 U.S.C. § 1415(e)(2) provides that a party aggrieved
by the findings and decisions of the state agency may bring an action in federal or state
court. Sections 1415(e)(4)(B),(C) and (D) further provide that in any action brought
under the subsection, the court may award reasonable attorneys' fees to the parents or
guardian of a child or youth with a disability who is the prevailing party. The relief
obtained by Warner was authorized by the fabric of federal and state statutes and
regulations, and justifies the fee award.

      Further, I believe that the court misreads Farrar v. Hobby, 506 U.S. 103, 111
(1992). The district court concluded, accurately I believe, that, in the respects we have
discussed above, Warner "did succeed in altering the legal relationship between the
parties by gaining an enforceable judgment that provides some relief to Eric" and thus
met the threshold requirement for prevailing party status. This court, in contrast,
acknowledges that material alteration of the legal relationship appears in the prevailing
party decisions, but states it is a standard by which the court measures how much relief
on the merits is sufficient to justify at least a partial fee award, but not the basis for
awarding fees to a plaintiff who did not prevail on the merits of any claim under the fee
shifting statute. The latter conclusion is simply contrary to the language in both Farrar
and Texas State Teachers Association v. Garland Independent School District,

                                          -11-
489 U.S. 782 (1989), that "[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." Garland Indep. School Dist., 489 U.S. at 789,
quoted in Farrar, 506 U.S. at 111.

       The School District's behavior has been modified in ways that directly benefit
Eric, as we have described above. The district court rejected arguments that the relief
obtained was gratuitous or de minimis. I would award fees and affirm the judgment of
the district court.

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -12-
