                              REVISED January 7, 2010

          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                     Fifth Circuit

                                                                     FILED
                                                               December 16, 2009
                                               No. 08-50830
                                                              Charles R. Fulbruge III
                                                                      Clerk
EL PASO INDEPENDENT SCHOOL DISTRICT

           Plaintiff - Appellant

v.

RICHARD R, as next friend of RR; MARK BERRY

            Defendants - Appellees

--------------------------------------------

RR, by his next friend ER

            Plaintiff-Appellee

v.

EL PASO INDEPENDENT SCHOOL DISTRICT

             Defendant - Appellant



                      Appeal from the United States District Court
                           for the Western District of Texas


Before KING, DAVIS, and BENAVIDES, Circuit Judges.
KING, Circuit Judge:
                                      No. 08-50830

       The El Paso Independent School District appeals the district court’s award
of attorney’s fees to R.R. under the Individuals with Disabilities Education Act.
The district court determined that R.R. was the prevailing party in his suit
against the school district because he had won a judicial order granting him his
requested relief; the court awarded attorney’s fees to R.R. in the amount of
$45,804. We assume, without deciding, that R.R. was the prevailing party in
this litigation.    But because R.R. rejected a written settlement offer that
included all the educational relief that he requested and reasonable attorney’s
fees, we also conclude that R.R. unreasonably protracted the resolution of this
dispute and VACATE the award of attorney’s fees to R.R. We AFFIRM the
dismissal of EPISD’s claim for attorney’s fees.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       R.R.1 claims to suffer from Attention Deficit/Hyperactivity Disorder. Over
the past twelve years, R.R. has sought special education and accommodative
services from the El Paso Independent School District (EPISD) under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. R.R.
has been evaluated several times for special education services, admitted to
special education programs, and assisted in his education through the provision
of accommodative services.
       In 2005, R.R. was struggling in school, despite receiving accommodative
services that included test preparation and study skills assistance. Later that
year, after failing the Texas standardized skills assessment test for the third
consecutive year, R.R. requested an evaluation for special education services.
In response to this request, the school district set up a committee to evaluate
R.R.’s academic placement. The committee determined that because R.R. was


       1
        R.R. has acted through his parents in this litigation. As a procedural matter, EPISD
brought suit against R.R.’s father and R.R.’s attorney. For simplicity, we refer to R.R., his
attorney, and his parents as “R.R.,” unless otherwise noted or made apparent from context.

                                             2
                                       No. 08-50830

very close to passing the Texas standardized skills test, there was no need to
either evaluate him for special education or change his current academic
placement and accommodative services.
       In 2006, after R.R. again failed the Texas standardized test, R.R.
requested a full evaluation to determine his eligibility for special education
services. In response, EPISD scheduled a meeting for September 25, 2006, to
address R.R.’s request. On September 25, R.R. cancelled the scheduled meeting
and, on September 26, filed a request for a state due process hearing. In that
filing, R.R. sought an order from the Texas Education Agency Hearing Officer
directing EPISD to (1) perform a “full independent evaluation” of R.R.; (2)
provide written notice to R.R.’s parents whenever the district proposed to change
R.R.’s status, accommodations, or evaluation report; (3) provide notice of
procedural safeguards to R.R.’s parents; (4) conduct an Admissions, Review, and
Dismissal Committee (ARDC) meeting; and (5) pay reasonable attorney’s fees.
       At the required pre-hearing resolution meeting,2 held on October 11, 2006,
EPISD contended that there was no dispute between the parties because it was
willing to provide all requested relief. Specifically, EPISD offered to (1) conduct
a full evaluation of R.R. within sixty days of the parents’ consent to evaluate; (2)
convene an ARDC meeting within thirty days from the completion of the
evaluation; (3) continue to comply with the applicable federal and state laws
regarding the provision of prior written notice and procedural safeguards to
parents; and (4) pay attorney’s fees.              At the meeting, EPISD asked for a
quantification of R.R.’s attorney’s fees. R.R. did not quantify his attorney’s fees
demand and instead asked for an “agreed order.” EPISD demurred, contending
that an “agreed order” was not appropriate because there were factual and legal


       2
         This meeting is held during the “resolution session,” 20 U.S.C. § 1415(f)(1)(B), and is
described under the heading “preliminary meeting,” id. § 1415(f)(1)(B)(i). For clarity, we refer
to this meeting as the “resolution meeting.”

                                               3
                                  No. 08-50830

disputes between the parties. R.R. then left the meeting.
      Later that day, EPISD formalized the offer made at the resolution meeting
in a written settlement offer faxed to R.R. The faxed letter included everything
offered at the resolution meeting and initially suggested an attorney’s fee award
of $3,000. However, EPISD stated that it “remain[ed] ready to negotiate a
private settlement, and in so doing, . . . [requested] the amount of attorney’s fees
that w[ould] be necessary to finalize the settlement.” Rather than continue
negotiating, R.R. refused EPISD’s settlement offer, did not make a counter-offer,
and proceeded to a due process hearing.
      At the due process hearing in November 2006, EPISD reasserted that
there was no dispute between the parties because it was willing to grant all
requested relief to R.R. As such, EPISD argued that R.R.’s complaint should be
dismissed. Notwithstanding this argument, the state hearing officer conducted
a two-day hearing on the issues presented in R.R.’s due process complaint. After
the hearing, the hearing officer made factual findings and entered judgment in
favor of R.R., ordering EPISD to conduct a full evaluation of R.R.
      In April 2007, EPISD and R.R. each filed suit in district court under the
IDEA. In its suit, EPISD argued that the hearing officer’s refusal to dismiss
R.R.’s complaint was error because the complaint was non-justiciable. As a
result, EPISD urged, R.R.’s subsequent litigation was frivolous, and the court
should award EPISD attorney’s fees. R.R. also sought an award of attorney’s
fees, asserting in his complaint that, based on the state hearing officer’s ruling,
he was the prevailing party. The two suits were subsequently consolidated.
      R.R. moved for summary judgment on the prevailing party issue in July
2007. The district court held that R.R. was justified in rejecting EPISD’s
settlement offer and continuing his litigation to obtain an “enforceable order.”
As part of this holding, the district court determined that there was a justiciable
dispute before the Texas hearing officer because EPISD had not offered an


                                         4
                                    No. 08-50830

enforceable settlement. Specifically, the district court concluded that EPISD’s
settlement offer would not have been enforceable in either state or federal court,
and as such, R.R. had an interest in continuing litigation to obtain a judicial
order that could be enforced against EPISD. The district court then held that
R.R. had prevailed in the litigation by obtaining a judicial order entitling him to
all of his requested relief. Because the district court determined that R.R.’s
litigation was not frivolous, the court also dismissed EPISD’s attorney’s fee
claim.
      Following this prevailing party determination, R.R. moved for attorney’s
fees. In response, EPISD again argued that because R.R. had achieved nothing
more than was originally offered, the district court should not award attorney’s
fees to R.R. The district court disregarded EPISD’s contentions, stating that it
had considered those arguments in making its prevailing party determination.
Instead, the district court granted R.R.’s motion for attorney’s fees in August
2008 and awarded $45,804 in fees to R.R.—an award that reflected the full
amount of work R.R.’s attorney had done. EPISD now appeals the district
court’s prevailing party and attorney’s fee decisions.
                                II. DISCUSSION
      The IDEA requires that a party be a “prevailing party” in order to be
entitled to attorney’s fees. See 20 U.S.C. § 1415(i)(3)(B)(i) (“[T]he court, in its
discretion, may award reasonable attorneys’ fees . . . to a prevailing party . . . .”).
Thus, in an action for attorney’s fees under the IDEA, the threshold question is
whether the party seeking attorney’s fees is the prevailing party. See Jason
D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir.
1998) (per curiam). However, “[a] finding that a party is a prevailing party only
makes him eligible to receive attorneys’ fees under the IDEA; it does not
automatically entitle him to recover the full amount that he spent on legal
representation.” Id.

                                          5
                                         No. 08-50830

                               A. Prevailing Party Status
       Under the IDEA, “a prevailing party is one that attains a remedy that both
(1) alters the legal relationship between the school district and the handicapped
child and (2) fosters the purposes of the IDEA.” Jason D.W., 158 F.3d at 209.
This test follows from Texas State Teachers Association v. Garland Independent
School District, where the Court held that the “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.” 489
U.S. 782, 792–93 (1989); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(“[P]laintiffs may be considered ‘prevailing parties’ . . . if they succeed on any
significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.”).
       More recently, in Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, the Supreme Court clarified that a
prevailing party is one that has obtained a judgment on the merits, a consent
decree, or some similar form of judicially sanctioned relief. 532 U.S. 598, 603–04
(2001). We now join our sister circuits in applying Buckhannon in the IDEA
context3 and hold that a litigant must attain some judicial imprimatur on a

       3
          See, e.g., T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478–79 (7th Cir. 2003)
(“[T]o be a prevailing party [post-Buckhannon,] a litigant must have obtained a judgment on
the merits, a consent decree, or some similar form of judicially sanctioned relief . . . on any
significant issue in litigation which achieves some of the benefits the parties sought in bringing
suit.” (internal quotation marks omitted)); see also J.D. ex rel. Davis v. Kanawha County Bd.
of Educ., 571 F.3d 381, 386–87 (4th Cir. 2009) (“As the Supreme Court noted in Buckhannon,
an award of attorneys’ fees requires a material alteration of the legal relationship of the
parties. . . ,[but] a party need not prevail on every issue . . . . [O]btaining judicially sanctioned
and enforceable final relief on some claims is sufficient.” (internal quotation marks omitted));
Doe v. Boston Pub. Sch., 358 F.3d 20, 29–30 (1st Cir. 2004) (“Consistent with each of the circuit
courts that have considered the application of Buckhannon to the IDEA, we hold that IDEA
plaintiffs who achieve their desired result via private settlement may not, in the absence of
judicial imprimatur, be considered ‘prevailing parties.’”); John T. ex rel. Paul T. v. Del. County
Intermediate Unit, 318 F.3d 545, 556 (3rd Cir. 2003) (“The [Buckhannon] 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 parties was in some way judicially

                                                 6
                                        No. 08-50830

material alteration of the legal relationship in order to be a prevailing party.4
We have already joined our sister circuits in holding that, after Buckhannon,
whether a party is a prevailing party “is a legal question subject to de novo
review.” Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005) (collecting
cases).
       EPISD argues that R.R. is not the prevailing party. EPISD contends that
because it offered R.R. all requested relief before litigation, R.R.’s attainment of
relief did not alter the legal relationship between the parties and did not foster
the purposes of the IDEA.5 In response, R.R. points to the fact that both the


sanctioned.” (internal quotation marks omitted)).
       4
         An administrative hearing officer’s order provides the requisite “judicial imprimatur”
for a party to be considered a “prevailing party” for attorney’s fee purposes, despite the fact
that the administrative hearing officer does not have the authority to award attorney’s fees.
The IDEA provides that a court may award attorney’s fees to any party that prevails in an
“action or proceeding,” 20 U.S.C. § 1415(i)(3)(B)(i), and the statute implies that administrative
hearings are “proceedings.” See, e.g., id. § 1415(d)(2)(F) (“due process proceedings”); id.
§ 1415(i)(2)(C)(i) (“administrative proceedings”); id. § 1415(i)(3)(D)(i)(I) (“administrative
proceeding”). Our sister circuits have also recognized that attorney’s fees can be awarded to
a party who prevails at an administrative hearing. See, e.g., A.R. ex rel. R.V. v. N.Y. City Dep’t
of Educ., 407 F.3d 65, 76 (2d Cir. 2005) (“In order to give effect to the IDEA’s intent to permit
awards to winning parties in administrative proceedings even where there has been no judicial
involvement, as the parties agree that we must, we conclude that the combination of
administrative imprimatur, the change in the legal relationship of the parties arising from it,
and subsequent judicial enforceability, render such a winning party a ‘prevailing party’ under
Buckhannon’s principles.”); T.D. v. LaGrange, 349 F.3d at 479 (“[W]e held in Brown v.
Griggsville Comm. Unit Sch. Dist. No. 4, that the IDEA does allow fees to the prevailing party
in administrative hearings. 12 F.3d 681, 683–84 (7th Cir. 1993). While we recognize that this
opinion was issued before Buckhannon, we do not perceive that Buckhannon requires a
different conclusion.”). These authorities are consonant with our pre-Buckhannon precedent
holding that success at an administrative proceeding entitles a party to attorney’s fees. See
Duane M. v. Orleans Parish Sch. Bd., 861 F.2d 115, 120 (5th Cir. 1988) (“The legislative
history of section 1415[] reflects Congress’ unequivocal intent to award attorneys’ fees to
parents for legal representation at due process hearings which the [IDEA] requires. To hold
that prevailing parties in these hearings cannot bring a separate suit for attorneys’ fees would
defeat that intent . . . .”).
       5
          EPISD spends over half of its brief on appeal arguing that R.R. did not present a
justiciable case or controversy to either the state due process hearing officer or the district
court. We respond simply by noting that EPISD itself admitted in its settlement offer to R.R.
that “[t]here are genuine issues of fact and law in dispute in this matter; thus, an agreed order

                                                7
                                        No. 08-50830

hearing officer and the district court determined that R.R. was entitled to a full
evaluation, thereby altering (as the district court held) the legal relationship
between R.R. and EPISD and fostering the purposes of the IDEA by enabling the
provision of an appropriate public education.
       As discussed above, the IDEA provides that “[i]n any action or proceeding
brought under this section, the court, in its discretion, may award reasonable
attorneys’ fees . . . to a prevailing party.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). The
IDEA features a plethora of provisions dealing with attorney’s fees, several of
which contemplate reducing the attorney’s fee award of a party that ultimately
prevails in an administrative or judicial proceeding. For example, a prevailing
party that ultimately achieves no more than what was earlier offered in
settlement may not recover attorney’s fees incurred subsequent to the settlement
offer. Id. § 1415(i)(3)(D)(i).6 Similarly, a court may reduce the attorney’s fees
awarded to a prevailing party found to have unreasonably protracted the
litigation. Id. § 1415(i)(3)(F)(i).7 Particularly at issue here is § 1415(i)(3)(D)(i),


is not in order.” (Offer of Settlement from EPISD to R.R., Oct. 11, 2006.)
       6
         Section 1415(i)(3)(D)(i) provides:
        Attorneys’ fees may not be awarded and related costs may not be reimbursed in
        any action or proceeding under this section for services performed subsequent
        to the time of a written offer of settlement to a parent if—
                (I) the offer is made within the time prescribed by Rule 68 of the Federal
                Rules of Civil Procedure or, in the case of an administrative proceeding,
                at any time more than 10 days before the proceeding begins;
                (II) the offer is not accepted within 10 days; and
                (III) the court or administrative hearing officer finds that the relief
                finally obtained by the parents is not more favorable to the parents than
                the offer of settlement.
Id. § 1415(i)(3)(D)(i).
       7
         Section 1415(i)(3)(F) contemplates that an attorney’s fee award will be reduced under
several enumerated circumstances:
       Except as provided in subparagraph (G), whenever the court finds that—
               (i) the parent, or the parent’s attorney, during the course of the action or
               proceeding, unreasonably protracted the final resolution of the
               controversy;

                                               8
                                       No. 08-50830

which provides that “[a]ttorneys’ fees may not be awarded . . . in any action . . .
for services performed subsequent to the time of a written offer of settlement . . .
[if] the court . . . finds that the relief finally obtained . . . is not more favorable
. . . than the offer of settlement.” Id. § 1415(i)(3)(D)(i) (emphasis added). In
imposing this bar against recovering attorney’s fees incurred subsequent to the
offer of settlement, that provision tacitly assumes that a party may reject such
an offer and nevertheless attain prevailing party status: the statute permits an
award of attorney’s fees for work performed prior to the written offer of
settlement, and prevailing party status is a predicate for any such award. See
id. § 1415(i)(3)(B)(i).
       Several of our sister circuits have addressed provisions of the IDEA that
contemplate reducing attorney’s fee awards for those parties who reject
settlement offers and later obtain no more than what was offered. In so doing,
these circuits have recognized that such a party still “prevails” by obtaining
judicially sanctioned relief, notwithstanding the reduced attorney’s fee award.
In T.D. v. LaGrange, the Seventh Circuit addressed T.D.’s argument that the
IDEA, by virtue of its complex array of provisions dealing with attorney’s fees,
fell beyond the scope of Buckhannon and that private IDEA settlements could
therefore convey prevailing party status. 349 F.3d at 476. In rejecting that
argument, the Seventh Circuit discussed generally the provisions of the IDEA


               (ii) the amount of the attorneys’ fees otherwise authorized to be awarded
               unreasonably exceeds the hourly rate prevailing in the community for
               similar services by attorneys of reasonably comparable skill, reputation,
               and experience;
               (iii) the time spent and legal services furnished were excessive
               considering the nature of the action or proceeding; or
               (iv) the attorney representing the parent did not provide to the local
               educational agency the appropriate information in the notice of the
               complaint described in subsection (b)(7)(A),
        the court shall reduce, accordingly, the amount of the attorneys’ fees awarded
        under this section.
Id. § 1415(i)(3)(F).

                                              9
                                        No. 08-50830

that deal with settlement offers and reduction of fees. In this discussion, the
Seventh Circuit noted that “if a plaintiff rejects a settlement offer and eventually
receives a judicially sanctioned victory that is less beneficial than the settlement
offer was, the plaintiff, though being a ‘prevailing party,’ may not get the fees
incurred after the settlement offer.”                  Id. at 476 (citing 20 U.S.C.
§ 1415(i)(3)(D)(i)).      Similarly, the D.C. Circuit and the Third Circuit, in
addressing whether Buckhannon applies to the IDEA, recognized that the IDEA
contemplates reducing fees when a litigant rejects a settlement offer and does
not achieve more favorable relief that what was offered, but that the litigant
remains the prevailing party. See, e.g., Alegria ex rel. Alegria v. District of
Columbia, 391 F.3d 262, 267 (D.C. Cir. 2004) (“A parent who refuses a written
offer to settle a complaint, and later prevails at an administrative hearing or in
court but obtains a result that is not more favorable than the written settlement
offer, would still be eligible for an award of attorneys’ fees for work performed
prior to the settlement offer . . . .”); John T., 318 F.3d at 557 (“[Section
1415(i)(3)(D)–(G)] define situations in which attorney’s fees [awarded to a
prevailing party] 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.”).8
       However, we have held that parties that extend litigation may be denied
prevailing party status. In Michael T. ex rel. Oralee T. v. El Paso Independent
School District, 37 F. App’x 714, 2002 WL 1221847, at *1 (5th Cir. 2002) (per

       8
         See also Dell v. Bd. of Educ., 918 F. Supp. 212, 217 (N.D. Ill. 1995) (“[T]his court
concludes that the relief finally obtained by Plaintiffs was not, in fact, more favorable than
Defendant’s offer, in spite of the fact that both hearing officers’ decisions are replete with
findings that Defendant violated Plaintiffs’ son’s rights. . . . Thus, although Plaintiffs are
‘prevailing parties’ for purposes of a fee award . . . the relief they won consists only of
reimbursement of $2,000.00 for the reasonable and customary expense of an independent
evaluation of their son’s needs. Because that sum is not more favorable than the $3,000.00
payment offered by Defendant School District before the administrative hearing, [Plaintiffs]
are barred from recovery of fees for services rendered at that hearing or in these proceedings.”).

                                               10
                                  No. 08-50830

curiam), an unpublished opinion which is not precedential, see 5TH CIR. R. 47.5,
but is nevertheless persuasive, we held that a district court did not clearly err
(the test in this circuit pre-Buckhannon) in determining that Michael was not
the prevailing party because Michael unreasonably withheld consent for an
evaluation. Id. The facts in Michael T. were substantially similar to the present
matter—EPISD and the attorney for R.R., Mark Berry, were both involved, and
the end result was that Michael also achieved an order entitling him to a full
evaluation at the due process hearing—but there the district court found that
Michael was not the prevailing party because the results Michael achieved
through litigation “could have been obtained at any time from the [school]
district but for his mother’s refusal to give consent to the initial assessment.”
Id. We affirmed, stating that “we cannot say that the district court clearly erred
in determining that the purposes of the IDEA are not fostered by encouraging
parents of potentially disabled children to withhold consent to an initial
assessment in order to obtain prevailing party status.” Id.
      We need not resolve the issue today whether a party who rejects a
settlement offer and obtains from an administrative hearing officer or the
district court no more educational benefit than the settlement offered is
technically a “prevailing party.” Instead, we assume, without deciding, that R.R.
is a prevailing party simply because he achieved a judicial order of relief, and we
consider only whether R.R.’s rejection of EPISD’s settlement offer should affect
the amount of R.R.’s attorney’s fees award. In so doing, we leave for another day
the question whether denying prevailing party status in these circumstances
might also be appropriate under the IDEA.
                              B. Attorney’s fees
      In considering the parties’ attorney’s fees arguments, we examine (1) the
award of fees to R.R. for work performed after EPISD’s written settlement offer;
(2) the award of fees to R.R. for work performed prior to EPISD’s written

                                        11
                                      No. 08-50830

settlement offer; and (3) EPISD’s claim for attorney’s fees.
                  1. R.R.’s Attorney’s Fees Post-Settlement Offer
       The first question is whether the district court abused its discretion9 in
awarding attorney’s fees to R.R. for work performed after EPISD’s written
settlement offer—formalizing the offer made at the resolution meeting—which
was made the day of the resolution meeting and more than ten days before the
administrative proceeding. That question is answered by several provisions of
the IDEA.
       The IDEA envisions that the parties to a dispute should resolve their
differences cooperatively. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53
(2005) (“The core of the [IDEA] is the cooperative process that it establishes
between parents and schools.”). To effectuate this goal, the statute requires that
“[p]rior to the opportunity for an impartial due process hearing . . . the local
education agency shall convene a meeting with the parents and the relevant . . .
members of the [educational program t]eam . . . .” 20 U.S.C. § 1415(f)(1)(B)(i).
The statute further contemplates resolution without resort to litigation by
endorsing settlement agreements: “In the case that a resolution is reached to
resolve the complaint at [the resolution] meeting described in [20 U.S.C.
§ 1415(f)(1)(B)](i), the parties shall execute a legally binding agreement that is
. . . enforceable in any State court of competent jurisdiction or in a district court
of the United States.” Id. § 1415(f)(1)(B)(iii)(II).
       Early resolution through settlement is favored under the IDEA. The
statute bars an award of attorney’s fees for work performed subsequent to a
written settlement offer that does not achieve anything more than that which
was offered. See supra Section II(A) (discussing 20 U.S.C. § 1415(i)(3)(D)(i)).
Notwithstanding that bar, a court may award attorney’s fees to a “parent who

       9
          We review an award of attorney’s fees for abuse of discretion, and we review the
factual findings upon which the award is based for clear error. Jason D.W., 158 F.3d at 208.

                                            12
                                  No. 08-50830

is the prevailing party and who was substantially justified in rejecting the
settlement offer.” Id. § 1415(i)(3)(E).
                          i. Settlement Enforceability
      Because it is undisputed that R.R. did not achieve any educational benefits
beyond what EPISD offered, the question is whether R.R. was substantially
justified in rejecting EPISD’s settlement offer. The district court held that
EPISD’s settlement offer would not have been enforceable if it had been reduced
to an agreement. Specifically, the district court determined that a private
settlement would have lacked the judicial imprimatur required to be enforceable
in federal court. Further, the district court determined that Texas had not
waived its immunity from suit in state court for the type of settlement offered
by EPISD, and accordingly, EPISD’s settlement offer would not have been
enforceable in state court. The district court, after determining that R.R. would
not have been able to enforce the settlement in either federal or state court,
concluded that R.R. had an interest in continuing litigation to obtain an
“enforceable” order of relief, and declined to reduce R.R.’s attorney’s fee award.
With respect, we disagree.
      The IDEA states that “district courts of the United States shall have
jurisdiction of actions brought under this section [20 U.S.C. § 1415] without
regard to the amount in controversy.” Id. § 1415(i)(3)(A); see also 34 C.F.R.
§ 300.516(d). The statute further contemplates that, if the parties are able to
resolve their dispute at the resolution meeting, they should “execute a legally
binding agreement that is . . . enforceable in any State court of competent
jurisdiction or in a district court of the United States.”            20 U.S.C.
§ 1415(f)(1)(B)(iii)(II); see also 34 C.F.R. § 300.510(d).    Pretermitting any
discussion of whether R.R. could have enforced a settlement agreement against
EPISD in state court, we determine that a settlement agreement reached at the
resolution meeting would have been enforceable in federal court.

                                          13
                                   No. 08-50830

      Courts have recognized that federal courts can enforce IDEA settlement
agreements reached at a resolution meeting. In H.C. ex rel. L.C. v. Colton-
Pierrepont Central School District, the Second Circuit considered whether an
agreement between the parties reached outside a resolution meeting or
mediation was enforceable in federal court. No. 08-4221-CV, 2009 WL 2144016,
at * 2 (2d Cir. July 20, 2009) (summary order). There, H.C. filed a due process
complaint seeking greater educational services in November 2005. H.C. ex rel.
L.C. v. Colton-Pierrepont Cent. Sch. Dist., 567 F. Supp. 2d 340, 342 (N.D.N.Y.
2008). The parties then met at the required resolution meeting later that
November, but they were unable to reach an agreement. Id. However, in May
2006, before any administrative hearing had occurred, the parties entered into
a written settlement agreement that resolved their dispute. Id.
      In June 2006, the school district created a new educational plan for H.C.
that reduced the level of services provided to H.C., and, in response, H.C. again
made a due process request, seeking more services and enforcement of the May
16 settlement agreement. Id. At the due process hearing, the hearing officer,
despite considering the substance of H.C.’s educational claims, declined to
exercise jurisdiction over the May 2006 settlement agreement, and the state
review officer concurred on appeal. Id. As a party aggrieved by the decisions of
the hearing officer and the state review officer, H.C. filed suit in federal district
court. The district court concluded, among other things, that the hearing officer
erred in determining that he had no authority to enforce the settlement
agreement, and the court accordingly remanded to the hearing officer for a new
hearing. Id. at 344. The school district then appealed the district court’s order
to the Second Circuit.
      On appeal, the Second Circuit vacated the district court’s remand order.
H.C., 2009 WL 2144016, at * 3. In its opinion, the Second Circuit considered
“[w]hether the district court had federal question jurisdiction to enforce the [May

                                         14
                                      No. 08-50830

2006] settlement agreement.” Id. at *2. The court stated that “[while c]ontract
enforcement is generally a question of state law[,] . . . Congress has expressly
provided for enforcement of IDEA settlement agreements in federal district courts
when the agreement at issue was entered into . . . at a ‘resolution session’ required
by § 1415(f)(1)(B).” Id. (emphasis added). However, because the May 2006
settlement agreement was not entered into either at the resolution meeting or
through mediation, the Second Circuit remanded the case to the district court
to determine whether “there [wa]s a jurisdictional basis for considering
plaintiff’s contract claim.” Id.
       District courts across the country have also recognized that IDEA
settlement agreements reached at a resolution meeting are enforceable in
federal court. See, e.g., J.M.C. v. La. Bd. of Elementary & Secondary Educ., 584
F. Supp. 2d 894, 898 (M.D. La. 2008) (stating that an agreement reached at a
resolution meeting would have been enforceable in federal court); L.K. ex rel.
L.K. v. Burlingame Sch. Dist., No. C 08-02743, 2008 WL 2563155, at *4 n.8 (N.D.
Cal. June 23, 2008) (“The Court also notes that . . . the [IDEA] permits
settlement agreements reached . . . through a resolution session under 1415(f)
to be enforceable in federal courts . . . .”); Traverse Bay Area Intermediate Sch.
Dist. v. Mich. Dep’t of Educ., No. 5:06-CV-139, 2007 WL 2219352, at *7 (W.D.
Mich. July 27, 2007) (“[W]ritten settlement agreements reached during the
mediation process or in a resolution session which comply with the [IDEA]
requirements are now enforceable in state and federal courts.”); Bowman v.
District of Columbia, No. 05-01933, 2006 WL 2221703, at *2 (D.D.C. Aug. 2,
2006) (recognizing that a district court has jurisdiction to enforce a settlement
agreement reached either at the resolution meeting or during mediation).10


       10
         Several commentators also recognize that IDEA settlement agreements reached at
a resolution meeting are enforceable in federal court. See, e.g., Andrea F. Blau, Available
Dispute Resolution Processes within the Reauthorized Individuals with Disabilities Education

                                            15
                                         No. 08-50830

       Here, EPISD offered R.R. all of his requested educational relief at the
resolution meeting. We conclude that if R.R. had accepted EPISD’s offer, he
could have enforced the resulting settlement agreement in federal court.11 As
such, there was no need for R.R. to reject EPISD’s settlement offer and continue
litigation solely to obtain an “enforceable” order of relief.
                   ii. Substantially Justified Settlement Rejection
       Given that R.R. did not need to continue litigation to obtain an enforceable
agreement covering all requested relief, we conclude that R.R. was not
“substantially justified” in rejecting EPISD’s settlement offer. See 20 U.S.C.
§ 1415(i)(3)(E). Further, R.R.’s own filings indicate that he recognized that a
settlement agreement made at the resolution meeting was enforceable.12
       Because R.R. was not substantially justified in rejecting EPISD’s
settlement offer, § 1415(i)(3)(D) applies and prohibits an attorney’s fee award for
work performed subsequent to the time of EPISD’s written settlement offer. See
Shelly C. ex rel. Shelbie C. v. Venus Indep. Sch. Dist., 878 F.2d 862, 864 (5th Cir.


Improvement Act (IDEIA) of 2004: Where Do Mediation Principles Fit In?, 7 PEPP. DISP. RESOL.
L.J. 65, 72 (2007) (“Decisions reached between the parties [at a resolution meeting] are binding
and enforceable.”); Allan G. Osborne & Charles J. Russo, Resolution Sessions Under the IDEA:
Are They Mandatory?, 218 WEST EDUC. L. REP. 7, 9 (2007) (“A settlement agreement [reached
at a resolution meeting] is enforceable by a state or federal court . . . .”); Mark C. Weber,
Reflections on the New Individuals with Disabilities Education Improvement Act, 58 FLA. L.
REV. 7, 31 (2006) (“If the parent and school district reach an agreement in the resolution
session, the parties execute a legally binding document, which may be enforced directly in
court . . . .”).
       11
         If R.R. had accepted EPISD’s written settlement offer, made the day of the resolution
meeting, then the parties would have entered into the “legally binding agreement”
contemplated by 20 U.S.C. § 1415(f)(1)(B)(iii). Accordingly, we do not have occasion to decide
today whether a district court would have jurisdiction to enforce a settlement agreement
entered into outside a resolution meeting.
       12
            (See, e.g., R.R.’s Mem. in Supp. of Mot. to Dismiss ¶ 18, May 22, 2007 (“[S]ettlements
with a school district (except those that result from a resolution meeting . . .) are not enforceable
. . . .” (emphasis added)); R.R.’s Reply to EPISD’s Opp’n to Mot. for Summ. J. 2, Dec. 14, 2007
(“Likewise, any written settlement agreement that is ‘reached to resolve the complaint at a
[resolution meeting]’ . . . is enforceable in a state or federal court.”).)

                                                16
                                   No. 08-50830

1989) (recognizing that the IDEA bars an award of attorney’s fees for work
performed subsequent to a settlement offer of all requested relief); Duane M.,
861 F.2d at 119 (same). Accordingly, the district court abused its discretion by
awarding attorney’s fees to R.R. for work performed subsequent to EPISD’s
written settlement offer.
               2. R.R.’s Attorney’s Fees for Pre-Settlement Offer Work
      The next question is whether the district court abused its discretion in
awarding R.R. attorney’s fees for work performed during and prior to the
resolution meeting. We determine that the district court abused its discretion
because R.R. was not entitled to an award of attorney’s fees for such work.
                i. Fees for Participating in the Resolution Meeting
      The IDEA allows an attorney’s fee award for work performed in any
“action or proceeding.”      20 U.S.C. § 1415(i)(3)(B)(i).     However, the IDEA
specifically excludes resolution meetings from the scope of that definition. Id.
§ 1415(i)(3)(D)(iii) (“A [resolution meeting] shall not be considered . . . a meeting
convened as a result of an administrative hearing or judicial action; or . . . an
administrative hearing or judicial action.”); see also 34 C.F.R. § 300.517(c)(2)(iii).
Accordingly, R.R. cannot be awarded attorney’s fees for work performed at the
resolution meeting, and the district court below abused its discretion in
awarding fees for work performed at that meeting. See, e.g., D.D. ex rel. Davis
v. District of Columbia, 470 F. Supp. 2d 1, 2 (D.D.C. 2007) (“It is undisputed that
attorneys’ fees for time actually spent at a resolution session . . . generally are
not compensable under the [IDEA].”); J.Y. ex rel. Thomas v. Seattle Sch. Dist.
No. 1, No. C07-1226, 2007 WL 4111202, at * 7 (W.D. Wash. Nov. 16, 2007)
(“Plaintiff[s] may not be awarded fees associated with participating in resolution
sessions.”).
         ii. Fees for Work Performed Prior to the Resolution Meeting
      Finally, we review whether R.R. is entitled to attorney’s fees for work his

                                         17
                                        No. 08-50830

attorney performed prior to the resolution meeting. The IDEA states that a
court shall reduce fees “whenever the court finds that . . . the parent, or the
parent’s attorney . . . unreasonably protracted the final resolution of the
controversy.” 20 U.S.C. § 1415(i)(3)(F)(i).13 As such, we must determine whether
R.R.’s rejection of EPISD’s settlement offer unreasonably protracted the final
resolution of the controversy such that a further reduction in the fee award is
warranted.14
       As discussed above, when a party rejects an offer of settlement and later
achieves at an administrative or judicial proceeding no more than what was
previously offered, a court may, but is not required to, award reasonable
attorney’s fees for work performed prior to the written offer of settlement under
§ 1415(i)(3)(D)(i). On the other hand, if a party accepts an offer of settlement,
that party may not be the prevailing party and thus not be entitled to an award
of attorney’s fees.15
       We need not speculate about these alternate situations. Here, EPISD
wisely included the payment of reasonable attorney’s fees to R.R as part of its
settlement offer. Consequently, R.R. was offered all requested educational relief



       13
          As a threshold matter, the IDEA states that § 1415(i)(3)(F) shall not apply “if the
court finds that the . . . local educational agency unreasonably protracted the final resolution
of the action or proceeding . . . .” Id. § 1415(i)(3)(G). Nothing in the record indicates that
EPISD unreasonably protracted resolution of this dispute.
       14
          In considering this question, we note that extended litigation under the IDEA is
disfavored because it imposes heavy costs on the litigants and delays implementation of an
appropriate educational plan for children with disabilities. See Schaffer, 546 U.S. at 58–59
(discussing the costs of litigating IDEA disputes and Congress’s intent to reduce IDEA
litigation).
       15
         See, e.g., Doe v. Boston, 358 F.3d at 29–30 (“ Consistent with each of the circuit courts
that have considered the application of Buckhannon to the IDEA, we hold that IDEA plaintiffs
who achieve their desired result via private settlement may not, in the absence of judicial
imprimatur, be considered ‘prevailing parties.’”); T.D. v. LaGrange, 349 F.3d at 476–78
(recognizing that a private settlement without judicial imprimatur is insufficient to convey
prevailing party status); John T., 318 F.3d at 557 (same).

                                               18
                                  No. 08-50830

and reasonable attorney’s fees, leaving absolutely no need to continue litigating.
Instead, R.R. and his attorney rejected EPISD’s settlement, walked out of the
resolution meeting, continued litigation, and unreasonably protracted the
resolution of this dispute for over three years. See Jason D.W., 158 F.3d at 211
(“[F]ailing to settle can constitute protraction under [the IDEA].”); Shelly C., 878
F.2d at 863 (reversing summary judgment in part because the district court did
not consider whether the parent’s attorney unreasonably protracted resolution
of the dispute when the parties ultimately settled). Accordingly, we conclude
that the district court here abused its discretion in awarding attorney’s fees to
R.R. for work performed prior to EPISD’s written settlement offer of all
requested relief and reasonable attorney’s fees. “[T]he IDEA only guarantees
the right to a free education; it does not explicitly guarantee the right to
attorney’s fees incurred in pursuit of that education.” T.D. v. LaGrange, 349
F.3d at 477.
                     3. EPISD’s Claim For Attorney’s Fees
      EPISD also requests that we reverse the district court’s dismissal of its
suit for attorney’s fees. The IDEA provides that a court “may award reasonable
attorneys’ fees . . . to a prevailing party who is a . . . local educational agency
against the attorney of a parent who files a complaint . . . that is frivolous,
unreasonable, or without foundation, or against the attorney of a parent who
continued to litigate after the litigation clearly became frivolous, unreasonable,
or without foundation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II) (emphasis added). A
court may also “award reasonable attorneys’ fees . . . to a prevailing State
educational agency or local educational agency against the attorney of a parent,
or against the parent, if the parent’s complaint or subsequent cause of action
was presented for any improper purpose . . . .”         Id. § 1415(i)(3)(B)(i)(III)
(emphasis added); see also Weber, supra note 10, at 29 (discussing these
provisions). As such, prevailing party status is a predicate for an award of

                                        19
                                       No. 08-50830

attorney’s fees to EPISD.16
       Here, there is no indication that EPISD did prevail or would have
prevailed on R.R.’s underlying request for educational relief. Indeed, EPISD’s
whole argument rests on the fact that it offered to provide R.R. all of his
requested educational relief. Thus, even though EPISD has “prevailed” by
successfully arguing for a reduction in R.R.’s fee award, EPISD has not prevailed
in arguing that R.R. is not entitled to his requested educational relief. Thus, we
cannot say that EPISD was the “prevailing party” such that it is entitled to
attorney’s fees under the IDEA. Accordingly, we affirm the district court’s
dismissal of EPISD’s claim for attorney’s fees.
                                  III. CONCLUSION
       For the foregoing reasons, we vacate the award of attorney’s fees to R.R.
We affirm the dismissal of EPISD’s claim for attorney’s fees.
       AFFIRMED in part; VACATED in part. Costs shall be borne by Mark
Berry.




       16
         See, e.g., District of Columbia v. Ijeabuonwu, 631 F. Supp. 2d 101, 104 (D.D.C. 2009)
(recognizing that a school district must be a prevailing party in order to be entitled to
attorney’s fees under the IDEA); Parenteau v. Prescott Unified Sch. Dist., No. CV-07-8072,
2009 WL 2169154, at *7 (D. Ariz. July 17, 2009) (same).

                                             20
