                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-2008

Pardini v. Alghny Intermediate
Precedential or Non-Precedential: Precedential

Docket No. 07-1403




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Pardini v. Alghny Intermediate" (2008). 2008 Decisions. Paper 1095.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1095


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                            No. 07-1403


             DAVID AND JENNIFER PARDINI,
             on behalf of themselves and on behalf
          of their minor child, GEORGIA PARDINI,

                                              Appellants

                                v.

          ALLEGHENY INTERMEDIATE UNIT;
        BARBARA MINZENBERG, Program Director


        On Appeal from the United States District Court
           for the Western District of Pennsylvania
                   (D.C. Civ. No. 03-00725)
        Honorable Thomas M. Hardiman, District Judge


                    Argued March 6, 2008


BEFORE: FISHER, GREENBERG, and ROTH, Circuit Judges

                    (Filed: May 12, 2008)


David D. Pardini (argued)
3256 Waltham Ave.
Pittsburgh, PA 15216

  Attorney for Appellants

                                 1
William C. Andrews
Christina Lane (argued)
Andrews & Price
1500 Ardmore Blvd.
Suite 506
Pittsburgh, PA 15221

   Attorneys for Appellee


                   OPINION OF THE COURT


GREENBERG, Circuit Judge.


          I. FACTS AND PROCEDURAL HISTORY

        This matter comes on before this court on appeal from an
order entered in the District Court on January 12, 2007, denying
plaintiffs David Pardini and his wife Jennifer Pardinis’ motion
seeking attorney’s fees in a lawsuit which they filed on behalf of
themselves and their daughter Georgia Pardini pursuant to the
Individuals with Disabilities in Education Act, 20 U.S.C. § 1400
et seq. (“IDEA”). Specifically, the Pardinis seek attorney’s fees
for David Pardini, an attorney who has represented his family in
its dispute with defendants, Allegheny Intermediate Unit
(“AIU”) and Barbara Minzenberg, its program director,
concerning services defendants were required to provide to
Georgia Pardini pursuant to the IDEA. For the reasons that we
will discuss, we will affirm the District Court’s order denying
the Pardinis’ motion for attorney’s fees.

       Inasmuch as we described the factual background of this
case in our earlier opinion in this litigation, Pardini v. Allegheny
Intermediate Unit, 420 F.3d 181 (3d Cir. 2005), we will set forth
only the facts necessary for disposition of the present appeal.
Georgia Pardini, who was born on April 18, 2000, suffers from
cerebral palsy. After her first birthday, the Alliance for Infants
and Toddlers (“AIT”) began supplying Georgia with services

                                 2
pursuant to an Individualized Family Service Plan (“IFSP”), in
accordance with the requirements of the IDEA. The IDEA
further requires that a child receiving services pursuant to an
IFSP transition to an Individualized Education Program (“IEP”)
when she reaches the age of three. To prepare for the transition,
the AIU evaluated Georgia to determine what services it should
include in the new IEP. After it conducted its evaluation, the
AIU provided an IEP for Georgia’s parents to review and sign.

        David and Jennifer Pardini refused to sign the IEP,
however, because it did not include what is known as conductive
education for Georgia, a service she had been receiving pursuant
to her IFSP. The AIU, in turn, refused to change the IEP to
include conductive education for Georgia. The Pardinis and the
AIU continued to disagree, and, as a consequence, the AIU
terminated all of Georgia’s services four days after her third
birthday. The Pardinis responded to the AIU’s termination of
services with a letter demanding that it reinstate the services
pursuant to the “stay-put” requirement of 20 U.S.C. § 1415(j).

       As the parties sought to resolve their dispute through an
administrative due process hearing, on May 21, 2003, the
Pardinis filed this action in the District Court seeking an order
requiring the AIU to continue providing interim services to
Georgia. On May 30, 2003, the District Court denied the
Pardinis’ motion for a preliminary injunction, and on August 29,
2003, the District Court denied the Pardinis’ claim for a
permanent injunction against the AIU. Pardini v. Allegheny
Intermediate Unit, 280 F. Supp. 2d 447 (W.D. Pa. 2003). The
Pardinis then appealed.

        On August 29, 2005, we reversed the District Court’s
denial of the Pardinis’ claim and remanded the case “for the
court to determine the amount of reimbursement the Pardinis are
entitled to as well as the amount of any attorneys fees.” Pardini,
420 F.3d at 192. The AIU filed a petition for rehearing but on
October 5, 2005, we denied the petition. On October 13, 2005,
we entered a judgment in lieu of a formal mandate vacating the
District Court’s denial of the Pardinis’ claim and “remand[ing]
[the matter] to the District Court for proceedings consistent with

                                3
this opinion.” Judgment (October 13, 2005).

       The Pardinis subsequently filed a motion in the District
Court seeking attorney’s fees. On August 18, 2006, the
magistrate judge issued a memorandum recommending denial of
the motion. Pardini v. Allegheny Intermediate Unit, Civ. No.
03-725, 2006 WL 3940563 (W.D. Pa. Aug. 18, 2006). The
Pardinis filed objections with the District Court, but on January
12, 2007, the District Court rejected the Pardinis’ objections and
adopted the magistrate judge’s findings and conclusions denying
their motion for attorney’s fees. Pardini v. Allegheny
Intermediate Unit, Civ. No. 03-725, 2007 WL 128875 (W.D. Pa.
Jan. 12, 2007). The Pardinis now appeal.




     II. JURISDICTION AND STANDARD OF REVIEW

        The District Court had jurisdiction over this case pursuant
to 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. § 1331. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We
review the District Court’s denial of attorney’s fees for an abuse
of discretion. See P.N. v. Clementon Bd. of Educ., 442 F.3d
848, 852 (3d Cir. 2006). There is “[a]n abuse of discretion . . .
when a district court’s decision rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper
application of law to fact.” Id. (internal quotation marks
omitted). “However, if the District Court denied the fees based
on its conclusion on questions of law, our review is plenary.” Id.




                       III. DISCUSSION

        The Pardinis seek attorney’s fees pursuant to the IDEA,
which provides that “[i]n any action or proceeding brought under
this section, the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs to a prevailing party who is
the parent of a child with a disability.” 20 U.S.C.
§ 1415(i)(3)(B).

                                4
        In Woodside v. School District of Philadelphia Board of
Education, 248 F.3d 129 (3d Cir. 2001), we addressed almost the
same question that we now address, i.e., “whether [20 U.S.C. §
1415(i)(3)(B)] authorizes an award of attorney fees to an
attorney-parent who represented his child in administrative
proceedings under the IDEA.” Woodside, 248 F.3d at 130. The
only difference between this case and Woodside is that in this
case the application for attorney’s fees is for the attorney-
parent’s representation of his child in both administrative and
federal court proceedings. The plaintiff in Woodside, a licensed
Pennsylvania attorney, was the father of a child who had a
condition called Klinefelter Syndrome. Id. The plaintiff
requested an administrative due process hearing to determine
whether the school district in which his son was enrolled was
providing adequate services for the child’s disabilities as
required by the IDEA. Id. The plaintiff represented his son
during the hearing, which lasted seven sessions over a period of
three months. Id. After the hearing, the school district was
ordered to provide the relief which the plaintiff sought. Id. The
plaintiff then filed suit in the district court pursuant to the IDEA
against the school district for attorney’s fees that he claimed to
have earned in representing his son in proceedings under the
IDEA. Id.

        On appeal, we addressed whether the IDEA’s provision
for attorney’s fees applied to attorney-parents representing their
children in administrative proceedings brought pursuant to the
statute. Id. In doing so, we discussed the Court of Appeals for
the Fourth Circuit’s opinion in Doe v. Board of Education of
Baltimore County, 165 F.3d 260 (4th Cir. 1998), and the
Supreme Court’s opinion in Kay v. Ehrler, 499 U.S. 432, 111
S.Ct. 1435 (1991). The court of appeals in Doe denied
attorney’s fees to attorney-parents in IDEA cases, reasoning that
“‘fee-shifting statutes are meant to encourage the effective
prosecution of meritorious claims,’” “‘they seek to achieve this
purpose by encouraging parties to obtain independent
representation,’” and “‘[l]ike attorneys appearing pro se,
attorney-parents are generally incapable of exercising sufficient
independent judgment on behalf of their children to ensure that
reason, rather than emotion will dictate the conduct of the

                                 5
litigation.’” Woodside, 248 F.3d at 131 (quoting Doe, 165 F.3d
at 263 (internal quotation marks omitted)). We also noted the
Supreme Court’s statement in Kay that “‘[t]he statutory policy of
furthering the successful prosecution of meritorious [civil rights]
claims is better served by a rule that creates an incentive to retain
[independent] counsel,’ rather than a rule that creates an
incentive to represent one’s self.” Id. (quoting Kay, 499 U.S. at
438, 111 S.Ct. at 1438). Following the reasoning in both Doe
and Kay, we concluded in Woodside that “an attorney-parent
cannot receive attorney fees for work representing his minor
child in proceedings under the IDEA.” Id.

        Notwithstanding Woodside the Pardinis offer three
arguments in support of their argument seeking reversal of the
District Court’s denial of attorney’s fees. First, they argue that
in our earlier decision remanding this case to the District Court,
we instructed the court to “determine the amount of
reimbursement the Pardinis are entitled to as well as the amount
of any attorneys fees,” Pardini, 420 F.3d at 192, and that our
instruction constitutes a decision by this Court that they are
entitled to attorney’s fees. Second, they argue that Woodside
should be distinguished from the present case because the
attorney-parent in Woodside sought attorney’s fees only for
work performed during administrative proceedings whereas the
Pardinis seek fees for work performed during both
administrative proceedings and in this federal court case. Third,
they argue that inasmuch as our earlier decision in this case
conflicts with Woodside, we should follow our earlier Pardini
decision as the governing precedent rather than Woodside. In
addition to their arguments with respect to attorney’s fees, the
Pardinis argue that the District Court erred in not allowing them
to recover costs that they paid for services for Georgia Pardini
other than the costs for conductive education. For reasons that
we will explain, we find none of these arguments to be
persuasive.

       A.     Whether Our Earlier Decision in This Case
              Decided the Issue of Whether the Pardinis Are
              Entitled to Attorney’s Fees



                                 6
       The most difficult issue on this appeal concerns the
application of our disposition of the Pardinis’ first appeal and
thus we begin our discussion of the merits of this appeal by
addressing the scope of our decision remanding this case to the
District Court. “It is axiomatic that on remand for further
proceedings after decision by an appellate court, the trial court
must proceed in accordance with the mandate and the law of the
case as established on appeal.” Bankers Trust Co. v. Bethlehem
Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985). “A trial court
must implement both the letter and the spirit of the mandate,
taking into account the appellate court’s opinion and the
circumstances it embraces.” Id. “The mandate and the opinion
must be considered together in their entirety with particular
reference to the issues considered.” Id. at 950. “From the
proposition that a trial court must adhere to the decision and
mandate of an appellate court there follows the long-settled
corollary that upon remand, it may consider, as a matter of first
impression, those issues not expressly or implicitly disposed of
by the appellate decision.” Id.

       Application of the rules usually governing remands might
pose a problem if our first Pardini opinion was inconsistent with
Woodside but we are satisfied that Woodside and our mandate
on the first Pardini appeal are not inconsistent. We have reached
this conclusion because taken together, our instructions to the
District Court and the circumstances of our decision did not
require that the District Court grant the Pardinis attorney’s fees
but rather required that it address and decide the issue of whether
the fees should be allowed. The District Court’s August 29,
2003 decision – which we reviewed and ultimately reversed –
did not decide whether the Pardinis were entitled to attorney’s
fees because the District Court’s denial of their claim had
rendered that issue moot. Accordingly, not until we reversed the
District Court and remanded the case to that court was it
confronted with the issue of whether to allow attorney’s fees,
and thus it is only on the present appeal that we have been
constrained to consider whether they be awarded.

       Although the Pardinis are correct that in our earlier
decision we discussed the issue of attorney’s fees, our discussion

                                7
was preliminary, leaving much for the District Court to address.
Indeed, the discussion appears exclusively in footnote 4, which
in full states:

        At oral argument, the parties informed the court
        that the Pardinis eventually agreed to an IEP
        that did not include conductive education.
        However, since we conclude that Georgia was
        entitled to receive conductive education as a
        part of Georgia’s IEP until the dispute was
        resolved, they are entitled to reimbursement of
        the out-of-pocket expense resulting from the
        AIU’s failure to comply with 20 U.S.C. §
        1415(j) as well as reasonable attorneys’ fees.

        We do not think that Mr. Pardini is precluded
        from recovering reasonable attorneys’ fees
        otherwise provided for under the IDEA merely
        because he is seeking reimbursement for his
        own expenses while representing his daughter.
        In Zucker v. Westinghouse, 374 F.3d 221, 227
        (3d Cir. 2004) we recognized that, absent an
        expression of congressional intent to the
        contrary, a plaintiff’s entitlement to attorneys’
        fees is not eliminated merely because he/she
        was pro se counsel. Although we were there
        discussing the right of a pro se plaintiff in a
        shareholder’s derivative action, that conclusion
        is not limited to that specific type of action.
        Since Mr. Pardini requested ‘such other relief as
        the Court deems fitting and proper,’ in his
        complaint, he is entitled to recover reasonable
        attorneys’ fees to the extent that he is the
        prevailing party.

Pardini, 420 F.3d at 183 n.4.

       Although we understand why the Pardinis might construe
these statements as constituting a decision directing an award of
attorney’s fees, a close reading of it shows that the footnote

                                8
offers nothing more than preliminary observations. In footnote 4
we cited to Zucker v. Westinghouse Electric, 374 F.3d 221 (3d
Cir. 2004), for the proposition that we should look to the
relevant statute to determine whether a fee-shifting provision
extends to pro se attorneys. Our decision in Zucker, however,
shows that the inquiry did not end with that observation because
we ultimately denied attorney’s fees to the shareholder-objector
who sought fees in that case. Indeed, we reached that conclusion
only after discussing and adopting the Supreme Court’s
reasoning in Kay, a case which also guided our decision in
Woodside, and after describing Woodside approvingly. See id.
at 227-29.

        Moreover, we specifically stated in footnote 4 in Pardini
that the Pardinis only would be entitled to attorney’s fees
“otherwise provided for under the IDEA.” Pardini, 420 F.3d at
183 n.4. We therefore did not determine whether the IDEA’s
fee-shifting provision allows the Pardinis to recover attorney’s
fees and instead left that matter for the District Court to decide
on remand. The District Court, in turn, correctly followed our
holding in Woodside, where we construed the same fee-shifting
provision in the IDEA involved here and concluded that it does
not provide for attorney’s fees in the case of attorney-parents
who represent their children in cases brought pursuant to the
IDEA. See Woodside, 248 F.3d at 130 (stating that “[t]he sole
issue here is whether [20 U.S.C. § 1415(i)(3)(B)] authorizes an
award of attorney fees to an attorney-parent who represented his
child in administrative proceedings under the IDEA”).

        Aside from footnote 4, the only mention of attorney’s fees
in our earlier Pardini decision appears in the conclusion, which
states: “We will therefore reverse the decision of the District
Court and remand for the court to determine . . . the amount of
any attorneys fees.” Pardini, 420 F.3d at 192. The inclusion of
the word “any” further supports the view that the grant of
attorney’s fees was a possibility rather a certainty. That
possibility at the very least was contingent on the District
Court’s determination of whether such fees are “provided for
under the IDEA,” id. at 183 n.4, an issue that we left to the
District Court to decide.

                                9
       B.     Whether Woodside Concerned Representation By
              an Attorney-Parent in Administrative Proceedings
              Only

        We do not find persuasive the Pardinis’ argument that
Woodside does not govern this case because the attorney-parent
in that case provided representation only in administrative
proceedings whereas David Pardini represented the Pardinis in
both administrative proceedings and this federal court case. We
did not predicate our reasoning in Woodside leading us to
conclude that the IDEA did not allow the attorney-parent to
recover attorney’s fees in representing his minor child on that
distinction. Rather, we reached our conclusion based on our
observation that “attorney-parents are generally incapable of
exercising sufficient independent judgment on behalf of their
children to ensure that reason, rather than emotion will dictate
the conduct of the litigation,’” and that granting attorney’s fees
to them would frustrate the fee-shifting provision’s purpose of
“encourag[ing] the effective prosecution of meritorious claims.”
Woodside, 248 F.3d at 131 (quoting Doe, 165 F.3d at 263
(internal quotation marks omitted)). The Pardinis fail to offer
any explanation for why our concerns in such cases do not apply
if there is litigation beyond administrative proceedings. We
therefore reject their argument in this respect.

       C.     Whether Woodside or Pardini Constitutes the
              Governing Precedent With Respect to the Issue of
              Whether an Attorney-Parent May Recover
              Attorney’s Fees Pursuant to the IDEA

        Finally, we reject the Pardinis’ argument that our first
decision in Pardini rather than our still earlier decision in
Woodside governs the question of whether an attorney-parent
asserting claims pursuant to the IDEA on behalf of his minor
child can recover attorney’s fees pursuant to the statute. It is
clear that even if our decision on the Pardinis’ first appeal
contravened Woodside by instructing the District Court to grant
attorney’s fees (which, as we have explained, it did not do), and
the District Court by reason of that opinion and the
accompanying judgment was required to award David Pardini

                                10
attorney’s fees,1 we must follow Woodside on this appeal.

       Section 9.1 of the Internal Operating Procedures (“IOPs”)
of the Third Circuit Court of Appeals provides:

           Policy of Avoiding Intra-circuit Conflict of
           Precedent.

           It is the tradition of this court that the holding of
           a panel in a precedential opinion is binding on
           subsequent panels. Thus, no subsequent panel
           overrules the holding in a precedential opinion
           of a previous panel. Court en banc
           consideration is required to do so.

Third Circuit IOP 9.1. Accordingly, “[t]his Circuit has long held
that if its cases conflict, the earlier is the controlling authority
and the latter is ineffective as precedents.” United States v.
Rivera, 365 F.3d 213, 213 (3d Cir. 2004) (declining to use the
standard of review set forth in a case within the circuit because
that case “never acknowledged that the precedents [within the
circuit] used [a different standard of review]” and did not
“explain why [the Court] broke with those precedents”); see also
Holland v. N. J. Dep’t of Corrections, 246 F.3d 267, 278 (3d Cir.
2001) (“[T]o the extent that [a case within the circuit] is read to
be inconsistent with earlier case law, the earlier case law . . .
controls”); O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354
(3d Cir. 1981) (“[A] panel of this court cannot overrule a prior



       1
                Judge Roth does not believe that the District Court on
remand would have been compelled to award the fees in view of
the fact that Woodside was binding on subsequent panels of this
Court and the District Court would have to take account of that fact
and rule in a manner that was consistent with Circuit precedent.
Moreover, if the case had returned to us on a subsequent appeal, we
would have had to overturn the District Court’s award of attorney’s
fees in view of the binding nature of the Woodside decision. Thus,
judicial economy would suggest that the District Court on remand
rule, as it did, consistently with Woodside.

                                    11
panel precedent. To the extent that [the later case] is
inconsistent with [the earlier case, the later case] must be
deemed without effect.”) (internal citations omitted).

        Clearly our Internal Operating Procedures and precedents
provide for an approach which differs from that used in the
situation in which there are two irreconcilable statutes in which
circumstance the second will be deemed to impliedly repeal the
first. Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 1441
(2003). Therefore, inasmuch as our decision in Woodside
addressed the same issue which we now face in this case, we are
bound by the holding in Woodside regardless of any conflicting
language, if there is any, in a subsequent decision by another
panel of this Court.2 Inasmuch as a panel of this Court rather
than the Court en banc issued our earlier decision in Pardini, the
decision could not overturn our holding in Woodside, even if the
panel sought to do that. See Third Circuit IOP 9.1.

       In reaching our result we have not overlooked the law of
the case doctrine which provides that “one panel of an appellate
court generally will not reconsider questions that another panel
has decided on a prior appeal in the same case.” In re City of
Phila. Litig., 158 F.3d 711, 717 (3d Cir. 1998). Rather, we
recognize that the doctrine does not apply in the extraordinary
circumstance when “the earlier decision was clearly erroneous
and would create manifest injustice.” Id. at 718. Certainly, in
view of Woodside if the panel in the original Pardini appeal had
intended to award attorney’s fees the decision would have been
clearly erroneous in light of IOP 9.1 and we would not be
required to follow it. In any event, there is at the very least
“substantial doubt” that the original Pardini panel decided the
attorney’s fees issue and thus we are not foreclosed from
deciding it. See United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 398 (3d Cir. 2003). (“Where there is



       2
         Of course, the situation would be different if there was a
later statutory change in the controlling statutory law after our
earlier opinion or if the Supreme Court filed an opinion
inconsistent with our earlier opinion.

                                 12
substantial doubt as to whether a prior panel actually decided an
issue, the later panel should not be foreclosed from considering
the issue.”).

       D.     Whether the Pardinis May Recover Costs for
              Services Other Than Conductive Education

       One final matter remains. The Pardinis argue that the
District Court erred in not allowing them to recover costs that
they paid for services for Georgia Pardini other than the costs for
conductive education. According to the Pardinis, our statement
in our earlier decision that “the Pardinis are entitled to the cost
of the conductive education that they purchased,” Pardini, 420
F.3d at 192, did not limit the recovery of costs to only those
incurred for conductive education, and they therefore are entitled
to recover the costs for other types of services as well.

       The Pardinis, however, have not identified any part of the
record showing that they sought to recover costs for services
other than conductive education or that the District Court denied
any application for such costs. See appellants’ br. at 25-27.
Indeed, there is nothing in either the magistrate judge’s
memorandum dated August 18, 2006, or the District Court’s
order dated January 12, 2007, concerning the recovery of costs
for services for Georgia other than those for conductive
education. We therefore find no basis for addressing whether
the Pardinis are entitled to recover costs for services for Georgia
other than the costs for conductive education.




                       IV. CONCLUSION

       For the foregoing reasons, we conclude that the District
Court did not abuse its discretion in holding that the Pardinis are
not entitled to attorney’s fees. We therefore will affirm the
District Court’s order of January 12, 2007. No costs shall be
allowed on this appeal.




                                13
