     Case: 10-50709 Document: 00511424883 Page: 1 Date Filed: 03/25/2011




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

                                                 FILED
                                                                           March 25, 2011

                                       No. 10-50709                         Lyle W. Cayce
                                                                                 Clerk

ECTOR COUNTY INDEPENDENT SCHOOL DISTRICT,

                                                   Plaintiff–Appellant
v.

VB, a Minor Child by Next Friend MB,

                                                   Defendant–Appellee




               Appeal from the United States District Court for the
               Western District of Texas, Midland–Odessa Division
                                   (7:07-CV-92)


Before BARKSDALE, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Ector County Independent School District (“ECISD”) contests attorney’s
fees awarded to VB, a Minor Child by Next Friend MB (“VB”), under the
Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. § 1400 et
seq. In a September 8, 2009 order adopting the magistrate judge’s report and
recommendation, the district court found that VB was a prevailing party under
20 U.S.C. § 1415 because VB received a favorable decision at an administrative
due process hearing. VB was thus eligible to receive attorney’s fees under the

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                    No. 10-50709

IDEA. In its July 6, 2010 order, the district court awarded $39,470 in attorney’s
fees and costs.
      There are two issues on appeal: (1) whether VB is a prevailing party, and
(2) whether VB’s award should be reduced because VB unreasonably protracted
litigation. We affirm the district court’s determinations that VB is a prevailing
party and that VB’s attorney’s fees award need not be reduced for unreasonable
protraction of litigation.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      At the time of the hearing that is the subject of this appeal, VB was an
ECISD student at Nimitz Junior High School. ECISD is a public school district
subject to the IDEA. Under the IDEA, ECISD is required to provide its special
education students with a free, appropriate public education. VB has attention-
deficit hyperactivity disorder. VB had been receiving special education services
from ECISD since 2003. Starting late in the 2005–2006 school year, VB’s parent
expressed concerns about VB’s individual education plan (“IEP”). VB’s parent
met with the Admission, Review, and Dismissal Committee (“ARDC”), the
committee that develops and administers a student’s IEP, and ECISD
administrative staff without satisfactory results.
      On February 23, 2007, VB submitted a due process complaint to the Texas
Education Agency pursuant to 20 U.S.C. § 1415(b)(6), requesting an impartial
due process hearing.         In the Due Process Complaint, VB requested (1) an
independent educational evaluation; (2) appropriate support services, including
a functional behavioral assessment, behavior intervention plan, and counseling;
(3) appropriate support services in a least restrictive placement; (4) appropriate
IEP goals and objectives; and (5) one year of compensatory educational services
or an amount of compensatory educational services deemed appropriate by the
Special Education Hearing Officer.



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      After a due process complaint is filed, but before a due process hearing can
be held, the IDEA mandates a quiet period of thirty days, during which certain
resolution activities must take place, including a resolution meeting. 20 U.S.C.
§ 1415(f)(1)(B). If the resolution meeting resolves the issues, the parties shall
execute a legally binding agreement that is (1) “signed by both the parent and
a representative of the agency who has authority to bind the agency”; and (2)
“enforceable in any . . . court of competent jurisdiction . . . .” § 1415(f)(1)(B)(iii).
ECISD and VB’s parent attended a resolution meeting on March 10, 2007. At
the resolution meeting, ECISD offered to schedule another ARDC meeting to
request an independent education evaluation, prepare a functional behavior
assessment, prepare a behavior intervention plan, discuss and create a plan for
how VB will access counseling services, and discuss and review any needed
modifications to VB’s IEP. VB’s parent requested time to consult her attorney
before agreement. No settlement was reached at the meeting.
      ECISD scheduled an ARDC meeting for March 22, 2007, to effectuate the
offer made at the resolution meeting, but VB’s parent refused to attend the
meeting on the advice of VB’s attorney.           The thirty-day resolution period
elapsed. A state administrative due process hearing was held on July 16, 2007.
On September 19, 2007, the Special Education Hearing Officer (“SEHO”) ordered
ECISD to (1) reimburse VB for the cost of a private evaluation of VB by Dr. Sam
Hill; (2) obtain a complete functional behavior assessment of VB by a qualified
licensed specialist in school psychology and obtain from the specialist
recommendations for appropriate eligibility and services, including a specific
behavior intervention plan or counseling services; (3) convene an ARDC meeting
within ten school days of completing the functional behavior assessment to
consider and schedule appropriate services for VB; and (4) conduct an evaluation
of VB’s eligibility for services under the learning-disabled classification,
including recommendations for appropriate individualized curriculum content

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                                  No. 10-50709

and modifications, and present the results and recommendations of the
evaluation to the ARDC within thirty days of receipt of the results of the
functional behavior assessment.
      On September 28, 2007, ECISD filed a complaint in state court, which was
removed to federal court, for review of the SEHO’s order. It requested (1) a
declaratory judgment that ECISD has provided VB a free, appropriate public
education and that the complaints brought against ECISD are not well taken;
and (2) an award of attorney’s fees and costs. ECISD argued that VB should be
denied prevailing party status because VB had never presented his complaints
to ECISD before filing his state due process complaint, or in the alternative
because VB unreasonably and needlessly protracted the litigation by refusing to
attend the ARDC meeting that would have implemented an alleged agreement
made at the meetings.
      VB filed a responsive brief arguing that ECISD had only offered another
ARDC meeting at the resolution meeting, and had not offered any sought-after
services, and thus that no legally binding agreement resulted from the resolution
meeting. VB additionally argued that the SEHO’s order provided more relief
than was offered at the resolution meeting. VB requested that ECISD’s claims
be denied and that VB be granted attorney’s fees.
      In a September 8, 2009 order, the district court, adopting the magistrate
judge’s recommendation, denied ECISD’s request for attorney’s fees and
declaratory judgment. The district court also determined that VB was the
prevailing party. In doing so, the district court noted that the parties did not
reach a binding written settlement agreement at the resolution meeting, and
that VB was under no duty to agree to ECISD’s proposal when it did not tender
specific terms but merely reflected ECISD’s willingness to consider and
recommend the requested actions to the ARDC. It also noted that VB’s parent
did not have to attend the ARDC meeting despite the stated goal of the Texas

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Education Agency to have these disputes resolved at the lowest levels. Though
an ARDC meeting is one of six options for possibly resolving disputes, another
being a due process hearing, the district court refused to penalize VB for
proceeding directly to a due process hearing instead of attend the ARDC
meeting.
      Thereafter, VB moved for attorney’s fees. VB asserted that VB was a
prevailing party who received a favorable decision by the SEHO, and that a
reasonable award for attorney’s fees would be $45,703.50. In its July 6 order,
the district court granted in part and denied in part VB’s application for
attorney’s fees, awarding $39,470 in total.     It found that VB’s parent was
substantially justified in rejecting ECISD’s offer from the resolution meeting
because there was no evidence that a written offer was made or signed, only
evidence of meeting minutes reflecting that ECISD would schedule an ARDC
meeting to “consider implementation” of the requested relief. Additionally, the
district court found that the relief obtained at the due process hearing was more
favorable than the offer made at the resolution meeting. It found that ECISD
had only offered to discuss recommendations for actions at an ARDC meeting,
whereas the SEHO’s orders required ECISD to take concrete actions by a certain
date, “thus mandating relief to occur,” including a functional behavioral
assessment that ECISD determined was unnecessary subsequent to the
resolution meeting. The district court found that VB did not unreasonably
protract litigation because VB had no obligation to sign a proposal that was not
a real agreement between the parties. Finding no other reason to reduce fees
except that the hourly rate should be calculated using the hourly rate prevailing
in the community, the district court awarded $39,470.




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                        II. STANDARD OF REVIEW
      We review the district court’s decision on the amount of attorney’s fees for
an abuse of discretion. El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417, 425
n.9 (5th Cir. 2009). We review the factual findings upon which the award is
based for clear error. Id. We review the conclusions of law underlying the
award de novo. Dearmore v. City of Garland, 519 F.3d 517, 520 (5th Cir. 2008);
Bailey v. Mississippi, 407 F.3d 684, 686 (5th Cir. 2005).
                               III. DISCUSSION
      ECISD appeals the district court’s decision to award attorney’s fees to VB,
arguing that VB is not a prevailing party or that in the alternative VB’s award
should be reduced because VB unreasonably protracted litigation.           ECISD
argues that though VB’s parent attended one unsuccessful resolution meeting,
VB’s parent unreasonably refused to attend a second ARDC meeting, which
would have provided all the relief requested by VB’s parent and awarded by the
SEHO, thereby protracting litigation. We disagree and therefore affirm the
district court’s orders and judgment.
      A party must be a “prevailing party” to receive an award for attorney’s fees
under the IDEA.        Richard R., 591 F.3d at 421 (quoting 20 U.S.C.
§ 1415(i)(3)(B)(i) (“the court, in its discretion may award reasonable attorneys’
fees . . . to a prevailing party”)). Even if the court determines that a party is a
prevailing party under the IDEA, this “does not automatically entitle him to
recover the full amount that he spent on legal representation.” Jason D.W. ex
rel. Douglas W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998).
Prevailing party status only makes a party eligible to receive attorney’s fees
under the IDEA. Gary G. v. El Paso Indep. Sch. Dist., 632 F.3d 201, 208 (5th
Cir. 2011).




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A.    Prevailing Party Status
      A party achieves prevailing party status when it attains (1) “a remedy that
alters the legal relationship between the parties and fosters IDEA’s purposes”;
and (2) “some judicial imprimatur on a material alteration of the legal
relationship.” Id. at 207. “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.” Id. (quoting Richard R.,
591 F.3d at 422 n.4) (internal quotation marks omitted).
      VB is a prevailing party. VB obtained a remedy from the SEHO that
altered the legal relationship between the parties and fostered the IDEA’s
purposes. ECISD was to reimburse the cost of a private evaluation of VB; obtain
a complete functional behavior assessment of VB from a licensed specialist in
school psychology, and from that specialist obtain recommendations for
appropriate eligibilities and services; convene an ARDC meeting within ten days
of the assessment to schedule appropriate services for VB; conduct an evaluation
of VB’s eligibility for services for the learning disabled and recommend
curriculum content and modifications, and report back to the ARDC within
thirty days of receiving the behavior assessment results. With his decision, the
SEHO obligated ECISD to take specific actions, including a functional behavior
assessment that ECISD had previously determined was unnecessary, within
certain deadlines.    This remedy furthered the IDEA’s purposes because it
required ECISD to take specific steps to ensure that VB would receive a free,
appropriate public education that the SEHO found VB had been denied. As we
noted above, the SEHO’s order provides the requisite “judicial imprimatur” for
a party to be considered a prevailing party.
      ECISD makes three arguments as to why we should not designate VB a
prevailing party. We disagree with all three. First, ECISD argues that VB

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never notified ECISD of VB’s desired relief before filing the due process
complaint. There is no statutory provision or regulation requiring VB to notify
the school district of a request for relief before filing a request for a due process
hearing. Section 89.1150 of the Texas Administrative Code states that it is the
policy and intent of the Texas Education Agency “to encourage and support the
resolution of any dispute” about a disabled child’s free appropriate public
education “at the lowest level possible.” 19 T EX. A DMIN . C ODE § 89.1150(b).
Additionally, the provision lists meetings or conferences with the ARDC,
teachers, and various school district officials as possible options for resolving
disputes in addition to requesting a due process hearing. Id. at § 89.1150(c). As
the district court noted, however, the section does not favor or prioritize the
order in which these potential options should be used for resolving disputes. See
id.
        The Texas Education Agency previously proposed adding such a
requirement in 2001; the language for the proposed rule § 89.1152(b) would have
read:
        Pursuant to the policy to encourage and support the resolution of
        any dispute at the lowest level possible, and in a prompt, efficient,
        and effective manner, no issue may be raised at a due process
        hearing unless it was first raised at an admission, review, and
        dismissal (ARD) committee meeting. Hearing officers shall dismiss
        any hearing request upon satisfactory proof that the issues raised
        in the hearing were not first presented to the ARD committee.

The Texas Education Agency eventually withdrew the proposed rule on March
29, 2002, after receiving a letter from the U.S. Department of Education’s Office
of Special Education Programs (“OSEP”) in response to the agency’s request for
an analysis of the proposed rule. Letter to Lenz, 37 IDELR 95 (OSEP March 6,
2002).    In its letter to the state agency, the OSEP opined that the “Texas
proposed rule impermissibly imposes additional prior notice requirements on



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parties. Parents and school districts do not have the right under the IDEA to
limit issues raised in a hearing to only the issues that were previously raised as
part of an ARD committee meeting.” Id. The OSEP letter further noted that
the “IDEA identifies with great specificity the circumstances under which a
parent or a school district is required to provide prior notice” and that Texas’s
proposed rule “would impose additional procedural hurdles on the right to a due
process hearing that are not contemplated by the IDEA.” Id. We find this letter
and the fact that Texas has refused to impose such a requirement in its
regulations persuasive. We find that there is no requirement that a parent
notify ECISD before instituting a complaint for a due process hearing.
      Second, ECISD argues that the SEHO’s order did not change its behavior
because ECISD was willing to provide all of the relief that the SEHO granted if
VB’s parent had attended the scheduled March 22 ARDC meeting. ECISD’s
second argument is without merit because there is no evidence that ECISD was
willing to provide all of the relief that the SEHO granted if VB’s parent attended
the scheduled March 22 ARDC meeting.            The meeting minutes from the
resolution meeting document that ECISD proposed to schedule an ARDC
meeting to consider various recommendations on how to implement VB’s various
requests. Assuming the accuracy of the meeting minutes, this vague offer
without specific terms and reflecting mere recommendations for the ARDC to
consider is far less than the concrete actions to be completed by certain deadlines
that the SEHO ordered.
      Finally, ECISD argues that designating VB a prevailing party would not
promote the purposes of the IDEA because VB did not give ECISD the
opportunity to resolve VB’s parent’s concerns before initiating the due process
proceeding, and because VB’s parent protracted litigation by refusing to attend
the scheduled March 22 ARDC meeting. This argument is without merit. Even
if we presumed that ECISD offered the same amount of relief that the SEHO

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ordered or that VB protracted litigation, VB is still a prevailing party. ECISD
is conflating the inquiry required to determine whether a party is a prevailing
party with the inquiry required to determine the appropriate amount for
attorney’s fees. It is true that in an unpublished case we have previously stated
that parties that have extended litigation may be denied prevailing party status.
Michael T. v. El Paso Indep. Sch. Dist., 37 F. App’x 714, 714 (5th Cir. 2002). But
as we noted in Gary G., Michael T. was decided during the pre-Buckhannon era,
when attorney’s fee decisions were decided under a “clear error” standard of
review, and our Court reached its decision in Michael T. primarily because of the
standard of review and because we used “‘prevailing party’ as being synonymous
with ‘attorney’s fees.’” Gary G., 632 F.3d at 207; see also Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001). But as
our Court noted in Gary G., “prevailing party” is not always synonymous with
“attorney’s fees.” Gary G., 632 F.3d at 207.
      Whether a party is a prevailing party is a separate question from what
amount of attorney’s fees the party is entitled to receive. Id. The provisions of
20 U.S.C. §§ 1415(i)(3)(D) through (G) present situations in which courts may
not award attorney’s fees or must reduce attorney’s fees, such as when a plaintiff
rejects a settlement offer that would have provided more relief than that
awarded by the SEHO, or where the party unreasonably protracts the resolution
of the case. But as the First, Third, Seventh, and D.C. Circuits have held, these
provisions “do not inform anything about the meaning of the term ‘prevailing
party’ in the IDEA because they are relevant only after a plaintiff has been
deemed a ‘prevailing party’.” Alegria v. Dist. of Columbia, 391 F.3d 262, 266
(D.C. Cir. 2004) (emphasis added) (citing T.D. v. LaGrange Sch. Dist. No. 102,
349 F.3d 469, 476 (7th Cir. 2003)); see also Doe v. Boston Pub. Sch., 358 F.3d 20,
26–27 (1st Cir. 2004); John T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 557
(3d Cir. 2003).

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                                      No. 10-50709

       Undoubtedly the purposes of the IDEA are not fostered by awarding
attorney’s fees to a party who unreasonably delayed resolution of the dispute.
But in determining whether a party is a “prevailing party” and thereby eligible
to receive attorney’s fees at all, we examine whether the remedy the party
obtained fosters the IDEA’s purposes. Gary G., 632 F.3d at 207 (citing Richard
R., 591 F.3d at 421–22). Here, the remedy is the SEHO’s decision. As we stated
above, this decision fostered the IDEA’s purposes by ordering concrete actions
to be completed by set deadlines, thereby ensuring VB would receive the free
appropriate public education that the SEHO found VB had been denied.
Accordingly, we agree with the district court that VB is a prevailing party.
B.     Amount of Attorney’s Fees
       In the alternative, ECISD argues that the award for attorney’s fees and
costs should be reduced to the amount incurred before the resolution meeting
because VB unreasonably protracted the final resolution of the controversy by
not informing the school district of the subject of the due process complaint
before filing the complaint and by refusing to attend the March 22 ARDC
meeting.1
       “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.” Gary G., 632
F.3d at 208 (quoting Jason D.W., 158 F.3d at 209) (first emphasis added). As we
mentioned above, the IDEA features several provisions that prohibit an
attorney’s fees award to a prevailing party or require the judge to reduce the



       1
         ECISD does not contest the district court’s finding that ECISD had not made any
written offer of settlement at the March 6 resolution meeting, but merely faxed over the
meeting minutes and agenda. Thus, we do not consider whether fees should have been
reduced under § 1415(i)(3)(D)(i), which prohibits the district court from awarding attorney’s
fees under the IDEA to a student’s parent for legal services performed subsequent to the time
of a written offer of settlement to a parent if the district court finds certain facts.

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award. Richard R., 591 F.3d at 423. Section 1415(i)(3)(F)(i) states that “the
court shall reduce, accordingly, the amount of the attorneys’ fees awarded under
this section” whenever the court finds that “the parent, or the parent’s attorney,
during the course of the action or proceeding, unreasonably protracted the final
resolution of the controversy.” 20 U.S.C. § 1415(i)(3)(F)(i).2
       As we stated above, we find ECISD’s contention that § 89.1150 of the
Texas Administrative Code establishes a framework for determining if a party
has unduly protracted litigation unavailing.               The language of § 89.1150
(1) merely lists potential options for resolving disputes—such as a request for
due process hearing or meetings with the ARDC, teachers, and school district
officials; and (2) does not favor any particular option or require that the solutions
be attempted in a certain order. Consequently, we reject ECISD’s argument that
VB’s parent had to notify the school district of the subject of VB’s due process
complaint before filing it. Thus, the only question that remains is whether the
refusal of VB’s parent to attend the March 22 ARDC meeting on the advice of
VB’s attorney unreasonably protracted the final resolution of the controversy.
       ECISD argues that it “had a right to schedule an ARD Committee meeting
and had a right to expect VB would participate in good faith.” In support of such
a finding, ECISD points to the current language of § 89.1185(m)(1) of the
administrative rules of the Texas Education Agency, and the language of
subsection (n) of the same section, which had been in place during the resolution
period and due process hearing:
       (m) At the request of either party, the hearing officer shall include,
       in the final decision, specific findings of fact regarding the following
       issues:


       2
          A court may not apply § 1415(i)(3)(F) and reduce an attorney’s fees award “if the
court finds that the State or local educational agency unreasonably protracted the final
resolution of the action or proceeding or there was a violation of [§ 1415].” Here, there is no
allegation that ECISD unreasonably protracted the final resolution of this dispute.

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         (1) whether the parent or the school district unreasonably
      protracted the final resolution of the issues in controversy in the
      hearing . . .
             ....
      (n) In making a finding regarding the issue described in subsection
      (m)(1) of this section, the hearing officer shall consider the extent to
      which each party had notice of, or the opportunity to resolve, the
      issues presented at the due process hearing prior to the date on
      which the due process hearing was requested. If, after the date on
      which a request for a due process hearing is filed, either the parent
      or the school district requests that a meeting of the admission,
      review, and dismissal (ARD) committee of the student who is the
      subject of the due process hearing be convened to discuss the issues
      raised in the request for a due process hearing, the hearing officer
      shall also consider the extent to which each party participated in the
      ARD committee hearing in a good faith attempt to resolve the
      issue(s) in dispute prior to proceeding to a due process meeting.
19 T EX. A DMIN. C ODE § 89.1185 (amended to be effective November 16, 2003, 28
T EX. R EG. 9830).
      Contrary to ECISD’s assertions, the language of § 89.1185(m)(1) and (n)
does not create such a right.      The subsections only speak to the SEHO’s
procedural duty to consider whether an ARDC meeting had been requested by
one of the parties or attended by the parties in good faith when either party
requests the SEHO to do so. ECISD has not indicated or produced any evidence
that either party requested a finding under (n) from the SEHO. We cannot find
any error with the district court’s conclusion in its September 8 order that “the
Texas Administrative Code does not require the SEHO to make findings on this
matter.”
      ECISD further argues that VB’s parent’s attendance at an ARDC meeting
was essential because the ARDC is the only committee that may adjust an IEP.
Though it may be true that the ARDC is the only committee that may adjust an
IEP, this is not helpful in our reasonableness determination if there is no
expectation or requirement that a parent attend further meetings after a


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                                  No. 10-50709

resolution meeting. The district court did not err in finding that VB’s parent’s
refusal to attend the ARDC meeting did not show bad faith or conflict with the
purposes of the IDEA. ECISD did not present—nor did our search of relevant
statutes, state and federal regulations, and case law find—any requirement that
a student’s parent attend any meetings after the resolution meeting. This is in
contrast to the explicit statutory requirement that the parties attend a
resolution meeting. 20 U.S.C. § 1415(f)(1)(B). VB fulfilled this requirement
when his parent attended the March 10 meeting.
      ECISD also argues we should find VB’s parent’s actions unreasonable
because they do not promote the purposes of the IDEA. It is true that the
legislative history indicates that the goal of the provisions requiring a quiet
period is one of fairness; Congress wanted “to be sure that a district is aware of
a problem and has a chance to resolve it in a less formal manner before having
to spend the time and resources for a due process hearing.” S. R EP. No. 108-185,
at 39 (2003). But the same Senate Report states that “[t]he purpose is not to
make parents go to another IEP meeting to explain an issue that has already
reached an impasse with the district.” Id. VB’s parent had met with the ARDC
and ECISD officials to discuss concerns with VB’s IEP prior to the due process
complaint. VB had also met with ECISD officials at the resolution meeting.
Even if ECISD did not have notice of VB’s specific issues at the time the
complaint was filed, ECISD did have notice by the time of the resolution meeting
from the due process complaint. ECISD had the opportunity to come to the
resolution meeting with a settlement offer that covered all requested relief, just
as El Paso Independent School District did in Richard R. See 591 F.3d at 428
(“[El Paso Independent School District] offered R.R. all of his requested
educational relief at the resolution meeting.”).    ECISD did not do so here;
instead, ECISD offered yet another meeting to discuss vague recommendations
concerning VB’s educational relief.

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      This is not to say that a district court never has discretion to reduce an
attorney’s fees award under § 1415(i)(3)(F)(i) when a parent or a parent’s
attorney has refused to attend a meeting subsequent to the resolution meeting.
For example, a district court would be within its discretion to reduce an
attorney’s fees award if the parent or the parent’s attorney has refused to attend
a second meeting, and (1) the meeting was scheduled at a mutually reasonable
time; (2) the parent or the parent’s attorney was given sufficient notice; and
(3) there was a reasonable expectation of obtaining substantial relief for the
child at the meeting. But, this was not the case here. VB’s parent had no
reasonable expectation that VB would receive the relief requested in the due
process complaint if VB’s parent attended the March 22 ARDC meeting. The
minutes of the March 10 resolution meeting indicate that ECISD would make
“recommendations” to the ARDC, that the ARDC would “discuss” access to
counseling services, and that it would suggest that the ARDC “review
modifications” to VB’s IEP. The meeting minutes do not indicate that the ARDC
was likely to implement the relief VB had requested. Additionally, it does not
appear that the controversy would have been resolved at the March 22 ARDC
meeting. As the district court noted and the SEHO’s findings of fact reflect,
ECISD later determined that a functional behavior assessment—one of the
specific requests for relief that VB had made in the due process complaint—was
unnecessary.
      It is beyond dispute that VB’s parent's failure to attend the ARDC meeting
(at the advice of counsel) did nothing to advance IDEA’s purpose, which is for
school districts and parents to work together to resolve their differences and
“achieve a level of meaningful education for students.” Gary G., 632 F.3d at 209
(citation omitted).   By failing to attend the ARDC meeting, VB’s parent
hindered, rather than advanced, efforts to obtain a meaningful education for VB.
“Parental participation in the development of an IEP is the cornerstone of the

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    Case: 10-50709 Document: 00511424883 Page: 16 Date Filed: 03/25/2011



                                  No. 10-50709

IDEA.” J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 447 (9th
Cir. 2010) (citation omitted); see also White ex rel. White v. Ascension Parish Sch.
Bd., 343 F.3d 373, 378 (5th Cir. 2003). We also recognize this court’s ability to
adjust attorney’s fees in an IDEA action, based upon a finding that the district
court abused its discretion in awarding fees. See Gary G., 632 F.3d at 210–11;
see also Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 596 (3d Cir. 2000).
But, given the delicate balance of state and federal regulation of this area of the
law, we are wary of reading a new requirement into the statute; given the facts
of the instant case, we decline to do so here. Consequently, we cannot find that
the district court clearly erred in holding in its order that: (1) ECISD offered no
“resolute actions” at the resolution meeting, but merely offered to refer all
actions to the ARDC for discussion; (2) VB “had reason to believe that a
‘discussion’ of behavioral assessment might not ever lead to actuality”; and (3)
VB did not lack “good faith in his dealings with [ECISD].” On these facts, the
district court did not abuse its discretion in deciding that it need not reduce VB’s
attorney’s fees award under 20 U.S.C. § 1415(i)(3)(F)(i) for unreasonable
protraction of litigation.
      AFFIRMED.




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