                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-18-2000

S. v. Scranton School Dist.
Precedential or Non-Precedential:

Docket 00-3050




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Filed October 18, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3050

DANIEL S., a minor by his parents and next friends,
Cynthia and Scott S.; CYNTHIA S.; SCOTT S., on their
own behalf

v.

SCRANTON SCHOOL DISTRICT,

       Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 98-cv-00243)
District Judge: The Honorable A. Richard Caputo

ARGUED July 18, 2000

BEFORE: BECKER, Chief Judge, SLOVITER, and
NYGAARD, Circuit Judges.

(Filed October 18, 2000)

       Harry P. McGrath, Esq. (Argued)
       Suite 532, 538 Spruce Street
       Scranton Life Building
       Scranton, PA 18503
        Attorney for Appellant

       Mary A. Clausen, Esq. (Argued)
       R.D. #1, P.O. Box 1494
       Saylorsburg, PA 18353
        Attorney for Appellees
OPINION OF THE COURT

NYGAARD, Circuit Judge.

In this case, filed under the Individuals with Disabilities
Education Act, 20 U.S.C. SS 1400-1490, the Scranton
School District appeals from an order granting attorneys'
fees to the parents of Daniel S. under S 1415(i)(3)(B) of the
Act. The School District argues that the meeting for which
attorneys' fees were awarded was not "convened as a result
of an administrative proceeding or judicial action," and that
the fee award was thus barred by the Act. We disagree, and
will affirm the District Court's order.

I. Background Law

Congress enacted the Individuals with Disabilities
Education Act to ensure that educational programs were
available to children with disabilities, to enable responsible
educational authorities to provide appropriate educational
programs, and to assure the effectiveness of such
programs. See 20 U.S.C. S 1400(d). To that end, the Act
provides financial assistance to states that comply with its
requirements. See id. SS 1411, 1412. One provision requires
each participating state to identify and evaluate the needs
of all children residing within its borders who are disabled
and who need special education or related services. See id.
S 1412(a)(3)(A).

Once the state has identified and evaluated a disabled
child in need of special education and related services, it
must have an Individual Educational Program (IEP) in effect
for that child at the beginning of each school year. See id.
S 1414(d)(2)(A); see also id. S 1414(d)(1)(A) (identifying the
required components of an IEP). Each IEP is designed by an
"IEP Team" composed of the parents of the child, a multi-
disciplinary collection of appropriately qualified educational
professionals, and, when appropriate, the child. See id.
S 1414(d)(1)(B).

The Act requires participating states to establish a
comprehensive set of procedural safeguards designed to

                               2
protect the interests of all parties. See id. S 1415. One such
safeguard allows parents who have lodged complaints about
the identification, evaluation, placement, or IEP
development processes to request an impartial
administrative due-process hearing. See id.S 1415(f)(1). If
the hearing is conducted by a local educational agency, any
party aggrieved by its findings and decision may appeal to
the state educational agency. See id. S 1415(g). If, however,
the hearing is conducted by the state educational agency,
an aggrieved party may bring a civil action in a state court
of competent jurisdiction or in federal district court. See id.
S 1415(i)(2).

In addition to granting other appropriate relief, a court
may, in its discretion, "award reasonable attorneys' fees to
the parents of a child with a disability who is the prevailing
party." Id. S 1415(i)(3)(B). Following a 1997 amendment,
however, "[a]ttorneys' fees may not be awarded relating to
any meeting of the IEP Team unless such meeting is
convened, [inter alia], as a result of an administrative
proceeding or judicial action." Id.S 1415(i)(3)(D)(ii) (emphasis
added). It is this limitation, and its application to a specific
IEP Team meeting, that is at issue in this appeal.

II. Background Facts & Procedure

In December 1996, the Scranton School District
identified Daniel S. as a student in need of special
educational services. An IEP Team consisting of Daniel's
parents and education professionals engaged in a series of
meetings intended to produce an IEP for Daniel. The School
District then presented Daniel's parents with an IEP, which
they rejected. The School District again presented the same
IEP, which Daniel's parents again rejected.

Sometime during the summer of 1997, the advocate
representing Daniel's interests in the IEP process contacted
Mary Anne Clausen, a private attorney specializing in
education law. See App. at 191:15-23. Thereafter, Daniel's
advocate "from time to time asked [Clausen] a few
questions about things" concerning the effort to develop an
acceptable IEP for Daniel. See id.

                               3
In August, the IEP Team met again, but again failed to
produce a mutually acceptable IEP. The School District
then requested an administrative due-process hearing to
determine the adequacy of the IEP it was offering Daniel. A
hearing was scheduled, and, in the interim, Daniel's
parents decided it would be best to teach him at home until
an appropriate IEP was in place at school.

While awaiting the hearing, Daniel's mother contacted
Attorney Clausen directly concerning truancy proceedings
that the School District had initiated against Daniel. See id.
at 192:8-193:15. Attorney Clausen had further
conversations on the truancy matter with Daniel's mother
and with his advocate in the ensuing weeks. See id. at
194:20-195:15. Ultimately, Attorney Clausen performed a
few minor legal services on Daniel's behalf regarding the
truancy proceedings against him. See id. at 196:2-197:9.

In September, the IEP Team then met again for a third
time, but again failed to produce a mutually acceptable IEP
for Daniel. Shortly thereafter, the School District presented
his parents with a revised IEP that conceded to some, but
not all, of their demands. In response, Daniel's mother sent
the School District a letter explaining why she was
dissatisfied with the latest IEP and setting forth her
remaining demands. See id. at 197:15-22; 203:11-19;
207:16-18.

Daniel's parents asked Attorney Clausen to represent
them in their continuing battle with the School District over
Daniel's IEP. See id. at 197:23-198:1. In the hope that the
parties would be able to resolve the matter without her
assistance, Attorney Clausen refused to represent them
until after they had received a response to their letter. See
id.

In October, the School District sent Daniel's parents yet
another version of the IEP, conceding to some, but again
not all, of the demands expressed in their previous letter.
Thereafter, Attorney Clausen "entered into a retainer
agreement [with Daniel's parents] to negotiate on their
behalf at that point in time and to see if we could get a
settlement of the matter for them." Id. at 198:13-24.
Daniel's parents rejected the School District's latest IEP

                               4
and, on the same rejection form, checked a box requesting
a due process hearing. See id. at 479.

Attorney Clausen called the School District's attorney
and requested a "settlement conference" to break the
impasse. More specifically, she explained that the efforts to
produce a mutually acceptable IEP for Daniel "had been
ongoing for a long time" and that she would "like to try to
settle it rather than going to due process." Id. at 212:24-
213:4. The School District's attorney agreed, and the
parties met on October 20 and signed an attendance sheet
labeled "Settlement Conference." See id. at 46.

The School District made a number of concessions at the
conference and, in the course of the ensuing few days,
made several more. As a result, the parties produced a
mutually acceptable IEP that Daniel's mother signed. The
request for a due-process hearing was then withdrawn.
Shortly thereafter, Attorney Clausen asked the School
District to pay her fees related to the October 20 settlement
conference and subsequent services rendered on Daniel's
behalf. When the School District refused, Daniel's parents
filed a civil action in the District Court for the Middle
District of Pennsylvania. Following a bench trial, the
District Court entered an order awarding attorneys' fees to
Daniel's parents.

In a memorandum explaining its order, the District Court
found that the October 20 conference was not a settlement
conference at all. In "the Court's view," because everyone
who attended the meeting, with the exception of Attorney
Clausen, was a member of the IEP Team, "regardless of
what the meeting was labeled, it was a meeting of the IEP
Team within the meaning of the Act." Dist. Ct. Mem. of
02/12/1999 at 3. The District Court also concluded that
the School District's request for a due process hearing had
"initiated" an "administrative proceeding." Id. at 5. The
court further concluded that "[g]iven the initiation of that
proceeding, and the impending hearing, it is inescapable
that the meeting of October 20, 1997 . . . was convened as
a result of the administrative proceeding." Id.

The District Court concluded:

                                5
       It seems quite clear . . . that counsel fees may be
       awarded in any instance where a party prevails as a
       result of an IEP team meeting which is convened as a
       result of an administrative proceeding. Such is exactly
       what occurred here, and therefore fees will be awarded
       to . . . plaintiff 's counsel.

Id. at 6. The School District disagrees that the meeting was
"convened as a result of an administrative hearing," and
appeals from the order awarding Attorney Clausen's fees.

III. Discussion

The sole issue raised in this appeal is whether the 1997
amendment of the Act bars this award of attorneys' fees.
The parties both contend that "[t]his case isfirst and
foremost a matter of statutory construction." Appellee's Br.
at 10; see also Appellant's Br. at 12 ("The Appellant
believes that the language of S 1415(i)(3)(D)(ii) is clear,
unambiguous and therefore no further analysis is
required."). To a degree, they are correct. But resolution of
this issue ultimately does not turn on a question of law.
The operative statutory phrase calls for the Court to
determine if the IEP team meeting was "convened as a
result of an administrative proceeding," thus raising a
question of causation.

In applying the pre-1997-amendment version of S 1415,
we have held that causation can be established on either of
two theories. See Wheeler v. Towanda Area School Dist.,
950 F.2d 128, 132 (3d Cir. 1991) (considering when
litigation is casually connected to the relief obtained by a
prevailing party). In the context of pre-amendmentS 1415,
litigation was held to be causally connected to the relief if
it either produced that relief directly (i.e., through a
favorable judgment), or, under an alternative "catalyst"
theory, if "the pressure of the lawsuit was a material
contributing factor in bringing about extrajudicial relief." Id.
(citations omitted).

In the context of this case, an administrative proceeding
can be causally connected to the prevailing party's relief if
the pressure of the proceeding was a material contributing
factor in bringing about the relief sought and ultimately

                               6
obtained by the child's parents. Thus, the real question in
this case is one of fact: was the scheduled due process
hearing the catalyst for the October 20 meeting that
ultimately produced a mutually acceptable Program for
Daniel?

The School District takes no issue with the District
Court's conclusion that the October 20 meeting was an IEP
Team meeting, but argues, essentially, that an IEP Team
meeting can never be convened as a result of an
administrative hearing that has not yet occurred. See
Appellant's Br. at 10. That is incorrect. An administrative
hearing need not actually have occurred for it to be the
cause of an IEP Team meeting. The mere threat of a
scheduled hearing alone may induce opposing parties to
agree to meetings in which they would not otherwise have
participated, if only to avoid the cost, burden and
uncertainty of the hearing itself. Cf. Sullivan v.
Pennsylvania Dep't of Labor & Indus., 663 F.2d 443 (3d Cir.
1981) (finding the requisite causal link to recover attorneys'
fees on Title VII claim where EEOC complaint caused union
to take case to arbitration where relief was ultimately
granted).

Despite a series of IEP Team meetings, as well as
exchanges in writing and by telephone, the parties were
unable to produce a mutually acceptable IEP for Daniel. By
September 3, the School District had determined that the
Program it was offering Daniel was appropriate, and that
IEP Team meetings were becoming "off focus" and
"counterproductive." App. at 336:19-23. In short, it, too,
had lost confidence in the IEP Team process, and had
decided that a due process hearing would likely be
necessary to break the impasse. Thereafter, the parties held
one more "regular" IEP Team meeting on September 30.

The October 20 meeting at issue was unlike the previous
meetings in several significant respects. First, by the time
the October 20 meeting was scheduled Daniel's parents had
made their own request for a due process hearing, implying
that they believed the IEP Team process had broken down.
Second, whereas all prior meetings had been scheduled by
the parties themselves following the notice requirements set
forth in the Act, the October 20 meeting was scheduled by

                               7
the parties' respective attorneys. Third, although the
attorneys did not attend any of the previous meetings, and
Daniel's attorney declined to become directly involved in the
IEP process until it was clear that the IEP Team was
deadlocked and an administrative hearing was imminent,
both attorneys attended the October 20 meeting. See App.
at 46. As noted, the District Court concluded that the
School District's September 3 request for a due process
hearing "initiated" an administrative proceeding. See Dist.
Ct. Mem. of 02/12/1999 at 5.

We reject the parties' invitation to formulate a bright-line
test for determining when an IEP Team meeting results
from an administrative proceeding. Under Appellant's
proffered test, an IEP Team meeting would never result
from an administrative proceeding if it occurs before the
administrative proceeding has actually been convened.
Conversely, Appellees ask us to hold that an IEP Team
meeting results from an administrative proceeding any time
it occurs after the administrative proceeding has been
requested, whether or not the requested proceeding was the
catalyst for the meeting in question. We reject both tests,
and hold that whether a particular IEP Team meeting
results from an administrative proceeding is first a factual
question of causation, opening the District court'sfindings
to our review for clear error. Thereafter, the decision to
award fees remains within the discretion of the court. See
20 U.S.C. S 1415(i)(3)(B), which we review for an abuse in
the exercise of its discretion.

Against this factual backdrop, we see no error in the
District Court's finding the meeting was convened as a
result of the pending administrative hearing, nor in its
determination that the pending due process hearing was
the catalyst for the October 20 IEP Team meeting. Looking
at the facts, we cannot accept the School District's claims
that it was merely being proactive when it filed its
September 3 request for a due process hearing. The
evidence is to the contrary. The record indicates that by the
time the School District requested a due process hearing it
had concluded that the IEP Team process had become
unfocused and counterproductive. Although it subsequently
scheduled one final IEP Team meeting for September 30,

                               8
that meeting was also unproductive. By the time the parties
scheduled the October 20 meeting, all involved believed the
IEP Team process had reached an impasse and that a due
process hearing was imminent without the successful
intervention by their attorneys. Accordingly, we conclude
that the District Court's finding that the October 20
meeting was convened as a result of the due process
hearing scheduled for November 10 is fully supported by
the evidence. Upon that finding, an award of attorney fees
was well within its discretion.

IV. Conclusions

We hold that the District Court did not err in finding, as
a matter of fact, that the IEP Team meeting at issue in this
case was convened as a result of an administrative
proceeding, nor did it abuse its discretion by awarding fees.
Accordingly, we will affirm the District Court's order.

                               9
BECKER, Chief Judge, concurring in the judgment:

Under the 1997 amendments to IDEA, on which the
School District relies, "[a]ttorneys' fees may not be awarded
relating to any meeting of the IEP Team unless such
meeting is convened as a result of an administrative
proceeding or judicial action." 20 U.S.C. S 1415(i)(3)(D)(ii).
Consequently, the School District can prevail only if: (1) the
October 20 meeting was one of Daniel's IEP Team; and (2)
the meeting was not convened as a result of an
administrative proceeding or judicial action. The Court
agrees that the October 20 meeting was an IEP Team
Meeting, but affirms the District Court's judgment awarding
fees because it concludes that the meeting took place as a
result of the due process hearing scheduled for November
10.

The linchpin of the Court's holding is its conclusion that
the District Court's "factual" finding "that the pending due
process hearing was the catalyst for the October 20 IEP
Team meeting" was not clearly erroneous. See opinion of the
Court at 8. I disagree. No administrative proceeding ever
took place, and none was even scheduled to occur prior to
November 10--three weeks after the October 20 meeting.
While the October 20 meeting may have occurred as a
result of the School District's decision to initiate the
administrative process and in anticipation of the scheduled
due process hearing, the statute simply does not refer to
IEP Team Meetings "convened as a result of the initiation of
an administrative process" or "convened in anticipation of
an administrative proceeding."

On the other hand, I also believe that--under any
standard of review--the October 20 meeting was not an IEP
Team Meeting. IDEA contains no definition of the phrase
"meeting of the IEP Team." Absent a definition or other
controlling authority, I would hold that parties may clearly
designate a meeting as a settlement conference rather than
an IEP Team Meeting, and I believe that that precept is
satisfied in this case. The October 20 meeting was
scheduled by counsel for the parents as a settlement
conference, and, with the exception of the parents' attorney,
every person at the October 20 meeting signed a sheet
referring to it as a "Settlement Conference." Although

                               10
lawyers are not designated as being part of an IEP Team,
two attorneys (one for the parents and one for the School
District) attended the October 20 meeting.

The impetus for and subject of the meeting was likewise
closer to that of a settlement conference than of an IEP
Team meeting because the parties were, at that point,
trying to avoid the need for a due process hearing, rather
than simply attempting to arrive at an IEP that was best for
Daniel. In addition, the School District did not give the
parents formal notice of the October 20 meeting--
something that Pennsylvania law explicitly requires it to do
before an IEP Team Meeting. I therefore conclude that the
October 20 meeting was not an IEP Team Meeting within
the meaning of IDEA, and would affirm the judgment on
this ground.

I.

To explain the rationale behind the conclusions I reach,
it is necessary to recapitulate the chronology of events. In
December 1996, the Scranton School District identified
Daniel S. as a "child with a disability" as that term is
defined under IDEA. With the assistance of Daniel's
parents, the School District prepared a comprehensive
evaluation of Daniel's disabilities. When Daniel's IEP Team
began meeting, however, it could not agree on a plan for
him. Without an IEP in place, Daniel was forced to remain
out of school between January and November of 1997.

During those ten months, Daniel's parents and other
members of his IEP Team met or had discussions on
numerous occasions. IEP Team Meetings took place on
April 1, April 29, and August 27, 1997, but the Team was
unable to agree on an IEP because Daniel's parents felt that
none of the proposals adequately accounted for his special
needs. In early September, the School District officially
requested a due process hearing at which an independent
third party would be asked to determine Daniel's fate. In an
effort to avoid this result, the IEP Team met one more time
on September 30, 1997. Daniel's parents rejected the IEP
proposed at the meeting and hired an attorney, Mary Ann
Clausen, to represent them at the due process hearing.

                               11
With the due process hearing scheduled for November
10, 1997, Clausen contacted the School District and
requested that a meeting be held in an attempt to resolve
matters before the hearing. In scheduling the meeting,
Clausen characterized it as a "settlement conference," and
counsel for the School District did not object to this
characterization. The parties, including most of Daniel's IEP
Team, assembled on October 20, 1997. This was first time
that lawyers for both the School District and Daniel's
parents attended a meeting regarding Daniel. All of the
parties (except Clausen) at the October 20 meeting signed
an attendance sheet labeled with the heading "Settlement
Conference." The parties discussed Daniel's IEP, but came
to no agreement regarding Daniel's educational plan.

The October 20 meeting proved fruitful, for it paved the
way for further informal conversations and exchanges of
information between the parties. Based on these exchanges,
an IEP was agreed upon and signed by Daniel's mother on
October 31, 1997. The IEP that Daniel's mother signed was
more favorable to Daniel than the School District's previous
proposals had been. With the October 31 agreement in
effect, the adversarial proceeding scheduled for November
10 was rendered unnecessary.

II.

Because the District Court concluded that the October 20
meeting was one of Daniel's IEP Team, it was required to
consider whether the meeting was "convened as a result of
an administrative proceeding." 20 U.S.C. S 1415(i)(3)(D)(ii).
The Court reasoned that the October 20 meeting was
"convened as a result of " the School District's decision to
request the due process hearing scheduled for November 10
and in anticipation thereof. Specifically, Court stated that:

       [g]iven the initiation of that proceeding, and the
       impending hearing [on November 10], it is inescapable
       that the meeting of October 20, 1997 which resulted in
       an acceptable plan on October 31, 1997, was convened
       as a result of the administrative proceeding. There
       appears to be no other requirement under the plain
       meaning and plain language of the statute.

                               12
The Court agrees with the District Court, characterizing the
inquiry as "a factual question of causation" reviewable for
clear error. Opinion of the court at 8. I disagree.

The key question is whether an IEP Team Meeting can be
convened as a result of a due process hearing that has not
yet taken place. This is a question of law because it
involves statutory interpretation. And because it is a
question of law, the appropriate standard of review is de
novo.1 See United States v. Zwick, 199 F.3d 672, 678 (3d
Cir. 1999) ("We exercise plenary review over questions of
statutory interpretation."). Neither the Supreme Court nor
any court of appeals has previously considered this issue.
Absent binding precedent, we must follow the Supreme
Court's repeated admonition that where a statute's text is
clear, the task of interpretation begins and ends there. See
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999).

The relevant portion of the statutory text refers to IEP
Team Meetings "convened as a result of an administrative
proceeding." There is no dispute that the due process
hearing scheduled to take place on November 10 would
have qualified as an "administrative proceeding" within the
meaning of IDEA. The question, therefore, is whether the
October 20 meeting was "convened as a result of " the due
process hearing scheduled for November 10. In the absence
of a statutory definition or some other compelling reason,
we interpret the words of a statute in accord with their
ordinary meaning. Result means "a consequence, effect,
issue, or conclusion." Webster's Third New International
Dictionary 1937 (1966). An event (such as an IEP Team
Meeting) cannot be a "consequence" of another event (such
as a due process hearing) that has not yet occurred nor can
an "effect" precede its purported cause.

This common sense interpretation is supported by the
ways in which the phrase "as a result of " is used in other
sections of the United States Code. Its only other use in
_________________________________________________________________

1. I agree with the Court that if, as a matter of law, an IEP Team Meeting
can occur "as a result of " a due process hearing that has not yet taken
place, the question whether a particular IEP Team Meeting did so occur
would be a question of fact that would be reviewable for clear error. See
opinion of the Court at 8.

                               13
IDEA provides that "[a]s a result of more than 20 years of
Federal support for research . . . , there is an important
knowledge base for improving results for children with
disabilities." 20 U.S.C. S 1471(a)(2)(A). Other provisions of
the United States Code use "as a result of " in a similar
manner--i.e., one that makes clear that an event may not
be the result of another event that has yet to occur.2

I can think of but three ways, none of them satisfactory,
to blur this clear statutory language. The first would be to
read the statute as saying "unless such meeting is
convened as a result of the initiation of or request for an
administrative proceeding." The second would be to read
the statute as saying "unless such a meeting is convened in
anticipation of an administrative proceeding." The problem,
of course, is that these alternate formulations are simply
not in the statute and their insertion would substantively
alter its meaning. A final possibility would be to conclude
that the commencement of the administrative proceedings
took place when the School District requested the due
process hearing. But this argument ignores the fact that
the statute does not say "administrative process," it says
"administrative proceeding," and the only administrative
proceeding that even potentially qualifies in this case never
occurred.

The only judicial decisions I have been able to locate
dealing with this issue support my reading of the statute.
The first, M.V. v. Gordon, No. 98 C 8408, 1999 WL 417394
(N.D. Ill., June 15, 1999), involved a 13-year-old boy who
had been diagnosed with Attention Deficit Hyperactivity
Disorder. M.V. was suspended from school after he engaged
in what seems to have been highly inappropriate behavior.
His parents submitted a request for a due process hearing.
_________________________________________________________________

2. See, e.g., 5 U.S.C. S 1103(b)(3) (relaxing publishing requirements for
new federal regulations that are "temporary in nature and [are]
necessary to be implemented expeditiously as a result of an emergency");
8 U.S.C. S 1440-1(b) (allowing for posthumous grant of citizenship to
certain noncitizens who served in the United States armed forces and
"died as a result of injury or disease incurred in or aggravated by that
service"); 10 U.S.C. S 829(a) (stating that members of a court martial may
not be "absent or excused after the court has been assembled for the
trial of the accused unless excused as a result of a challenge").

                               14
An IEP Team Meeting was convened and a settlement was
reached that rendered the due process hearing
unnecessary. Id. at *1. The parents thenfiled an action to
recover attorneys fees "relating [to] IEP meetings." See id. at
*2. The court granted the school district's motion to
dismiss, finding the language of the 1997 amendments
"clear and unambiguous." Id. Responding to the parents'
claim "that it was their request for a due process hearing
. . . that was the `catalyst for the relief obtained,' " the court
stated:

       Plaintiffs have not demonstrated how the hearing
       request alone entitles them to fees. Although Plaintiff[s]
       cite cases which granted recovery of fees in similar
       situations [citing the parents' brief], those cases pre-
       date the 1997 IDEA amendments which now clearly
       limit recovery of fees Plaintiffs seek unless they are the
       result of "an administrative proceeding or judicial
       action." Plaintiffs have not established that the[School]
       District convened the IEP meeting as a result of an
       "administrative proceeding." On the contrary, Plaintiffs'
       own allegations reveal that the [School] District took a
       proactive role at an early opportunity thereby removing
       the need for administrative proceedings.

Id. at *3. Accordingly, the court denied the request for
attorneys fees. See id.

The case most heavily relied upon by Daniel's parents,
F.R. v. Board of Education, 67 F. Supp. 2d 142 (E.D.N.Y.
1999), provides little support for their claim that attorneys
fees may be awarded in this case. Although the Court in
F.R. awarded fees for work done prior to a due process
hearing, the fees requested were not intended to
compensate an attorney for attending an IEP Team Meeting.
The court noted that:

       [P]laintiffs do not seek fees in connection with their
       attorney's presence at the CSE meetings held to
       develop and modify [the child's] IEP. . . . Instead . . .
       [the] fees sought to be reimbursed relate to attorney
       work performed in connection with investigation of the
       case, discussions with opposing counsel, client
       meetings and preparations of requests for impartial
       hearings.

                               15
Id. at 148 (emphasis added). In contrast, as   the facts are
interpreted by the Court, this case involves   a request for
fees for attending an IEP Team Meeting. F.R.   provides no
support that such fees are recoverable after   the 1997
amendments.3

III.

The rule announced by the Court today will undermine
the goal of the 1997 amendments, which was to make IDEA
less costly for local school districts. The (admittedly limited)
means chosen to accomplish this goal involved restricting
the ability of parents to recover attorneys fees associated
with attendance at IEP Team Meetings. The causation test
adopted by the Court will allow one party (parents, or, more
accurately, their lawyers) to undermine these limits
unilaterally by requesting a due process hearing early on so
that they can claim that any subsequent IEP Team
Meetings occurred as a result of that request. Even if courts
often reject such claims on the grounds that a causal
connection between the request for a hearing and the
resolution of the dispute is lacking, the litigation over fees
will itself be costly and time-consuming for school districts.

On the other hand, a rule that attorneys fees are never
recoverable for any meeting that occurs prior to an
administrative proceeding would likewise undermine the
purpose of the 1997 amendments. The costs of paying for
parents' attorneys to attend a successful settlement
conference will almost always be lower than the costs
associated with their attendance at a due process hearing.
But if parents' lawyers could not recover fees for attending
settlement conferences but could recover them for
attending due process hearings, then they would lack an
incentive to try to settle disputes prior to a hearing.
_________________________________________________________________

3. The only other cases cited by the parties are unhelpful in resolving
this issue. In Lucht v. Molalla River School District, 57 F. Supp. 2d
1060,
1062 (D. Ore. 1999), the IEP Team Meeting for which the parents
demanded fees occurred after a due process hearing had taken place.
And Christopher P. v. Upper Merion Area School District, No. CIV A. 99-
402 (E.D. Pa., Jan. 19, 2000), does not discuss the impact of the 1997
amendments.

                               16
Accordingly, an ideal system to hold down overall costs
must take account of (and encourage) bona fide settlement
conferences.

I believe that the best way to hold down overall costs is
to allow parties to designate meetings as settlement
conferences rather than IEP Team Meetings. The special
education world is largely made up of sophisticated, repeat-
player counsel for both parents and school districts. A clear
rule that attorneys fees are not recoverable for pre-hearing
meetings unless the parties agree that the meeting is a
settlement conference rather than an IEP Team Meeting
would allow the parties to agree ex ante whether a given
meeting may later be subject to a claim for fees. School
districts will not agree to a settlement conference, however,
unless and until they conclude that further resort to the
non-adversarial IEP process is unlikely to yield agreement.
Accordingly, settlement conferences will be held only when
the choice has truly become one between settlement and a
formal hearing, and, under such circumstances, IDEA's
policy of holding down costs is served by allowing recovery
of fees.

IV.

There is neither statutory language nor substantial case
law defining what constitutes an IEP Team Meeting. 4 But
_________________________________________________________________

4. The phrase "meeting of the IEP Team" is contained only in the 1997
amendments. 20 U.S.C. S 1415(i)(3)(D)(ii). IDEA defines the "IEP Team"
as "a group of individuals composed of " the child's parents, certain
teachers, other persons trained in working with children with
disabilities, other individuals familiar with the child and the local
curricular offerings, and, whenever appropriate, the child him- or
herself.
Id. S 1414(d)(1)(B). The IEP Team is charged with developing and revising
a child's IEP and must consider certain factors. Individual members of
the IEP Team are given certain responsibilities. See id. S 1414(d)(3-5).
Other provisions of the statute instruct the IEP Team to consider
particular data or attach consequences to determinations made by the
IEP Team. See S 1414(c)(1); id. S (2); id. S (4); id. S (d)(1)(A)(v)(I);
id.
S (vii)(II); id. S 1415(k)(1)(B)(ii); id. S (3)(A); id. S (4)(B-C). One
Section
attaches specified consequences to a failure of the child's parents to
inform the IEP Team that they are rejecting a proposed placement for
their child. See id. S 1412(a)(10)(C)(iii)(I)(aa). Nowhere, however, does
the
statute provide real guidance for determining whether a meeting is one
of the IEP Team.
17
absent controlling authority to guide us, I would hold, for
the reasons stated above, that parties may designate a
meeting as a settlement conference rather than an IEP
Team Meeting. Because I believe that under any standard
of review the parties did so in this case, I conclude that the
parents' request for attorneys fees is not barred by the
1997 amendments, and I would affirm the District Court's
order granting fees on this alternate ground.

The District Court held that the October 20 meeting was
an IEP Team Meeting. See A28 ("It is therefore the Court's
view that regardless of what the meeting was labeled, it was
a meeting of the IEP team within the meaning of the Act.").
The Court agrees.5 See opinion of the Court at 5, 7. I do not.

The first question, which the Court does not even
address, is the appropriate standard for reviewing the
District Court's decision that the October 20 meeting was
one of Daniel's IEP Team. Some of the District Court's
statements, i.e., those about the identities of the people at
the meeting, the fact that they signed a sheet titled
"Settlement Conference," and the matters discussed at the
meeting, are findings of fact that should be reviewed for
clear error. On the other hand, the meaning of the phrase
"meeting of the IEP Team" is a legal question that should be
reviewed de novo. I need not determine the appropriate
standard for reviewing the District Court's application of
_________________________________________________________________

5. Curiously, the Court appears to suggest that this issue is not before
us because "[t]he School District takes no issue with the District Court's
conclusion that the October 20th meeting was an IEP Team Meeting."
Opinion of the Court at 7. While this observation is true--after all, the
School District cannot prevail on this appeal unless the October 20
meeting was one of Daniel's IEP Team--it is also irrelevant. The School
District has appealed the District Court's judgment awarding attorneys
fees to the parents. Before this Court, the parents argue, inter alia,
that
we should affirm the District Court's judgment because the October 20
meeting "was not an IEP team meeting." Because a party that ultimately
prevailed before a district court may urge affirmance on different
grounds, this issue is properly before us. See Alvin v. Suzuki, No. 99-
3245, 2000 WL 1281478, at *1 (3d. Cir., Sept. 12, 2000) (affirming a
district court's decision to grant summary judgment against a plaintiff
alleging a procedural due process violation on different grounds from
those articulated by the district court).

                               18
the law to the facts, however, because I conclude that
under any standard of review the District Court erred in
holding that the October 20 meeting was one of Daniel's
IEP Team.

I will begin with the objective evidence. Although IDEA
provides no definition for the phrase "meeting of the IEP
Team," there are, as I see it, three characteristics of such
meetings that inform the inquiry, and each of these factors
supports the conclusion that the October 20 meeting was a
settlement conference rather than an IEP Team Meeting.
The first characteristic of an IEP Team Meeting is the
identities of those in attendance. Unlike every previous
meeting of Daniel's IEP Team (a series of four meetings
spanning six months), counsel for both parties attended the
October 20 meeting. Lawyers are not mentioned in the
section of IDEA listing members of an IEP Team. See 20
U.S.C. SS 1414(d)(1)(b)(i)-(vii). In contrast, lawyers are
mentioned in the section of IDEA providing for the
procedural rights that parents must be accorded at due
process hearings. See id. S 1415(h).

Further, as the admittedly sparse legislative history to
the 1997 amendments demonstrates, IEP Team Meetings
are meant to be fora at which parents and school
administrators--outside the presence of counsel and the
threat of litigation--can resolve their differences and arrive
at an IEP best suited to the disabled child's interests. See
H.R. Rep. No. 105-95, at 105 (1997), reprinted in 1997
U.S.C.C.A.N. 78, 103 ("The Committee believes that the IEP
process should be devoted to determining the needs of the
child and planning for the child's education with parents
and school personnel. To that end, the bill specifically
excludes the payment of attorneys' fees for attorney
participation in IEP meetings, unless such meetings are
convened as a result of an administrative proceeding or
judicial action."). Thus, in terms of participants, the
October 20 meeting was more like a settlement conference
arranged in anticipation of a due process hearing than a
typical IEP Team Meeting.

In its conclusory disagreement, the Court appears to
adopt the District Court's reasoning that because"the
parties in attendance, with the exception of Ms. Clausen,

                               19
were members of the IEP team," the meeting was inherently
"a meeting of the IEP team within the meaning of the Act."
This seems wrong to me for two reasons. First, it glosses
over the fact that attorneys for both parties were present6
(which, for the reasons explained above, is highly
significant). Second, it assumes that any meeting including
the members of a child's IEP Team is a "meeting of the IEP
Team" within the meaning of IDEA. But individuals who
make up the membership of a group may meet without
thereby convening the group. The panel of this Court, for
example, could surely go out for a social lunch without
constituting the United States Court of Appeals for the
Third Circuit. While I recognize that the purpose of the
October 20 meeting was to agree on a satisfactory IEP for
Daniel (which is, at least, related to the normal purpose of
an IEP Team meeting), this does nothing to undercut the
argument that the mere presence of members of the IEP
Team cannot be decisive.

A second characteristic of an IEP Team Meeting is its
subject matter. As the District Court noted in its opinion,
the parties did meet to discuss Daniel's IEP. In fact, there
was pressure to agree upon the IEP because neither party
wanted to go through a due process hearing and risk losing
control over the outcome while incurring the costs of
presentation before an administrative tribunal. Thus, while
the basic subject matter of the October 20 meeting was
consistent with IEP Team Meetings in general, the
chemistry of the meeting was transformed by the presence
of negotiating counsel. In short, the meeting was more like
the settlement conference it had been titled by the parties
than like an IEP Team Meeting.

A final characteristic of IEP Team Meetings--at least in
Pennsylvania, and not present in this case--is the type of
notice school districts must provide parents before
scheduling a meeting. Pennsylvania law requires that
_________________________________________________________________

6. The District Court's statement that all those in attendance except
Clausen (the parents' lawyer) were members of Daniel's IEP Team
appears to be clearly erroneous. The statement of undisputed facts
submitted by the parties states that counsel for the School District, who
was not a member of Daniel's IEP Team, was also present.

                               20
school districts formally notify parents when IEP Team
Meetings will be held. See 22 Pa. Code 342.32(c)(2). This
notice must inform the parents of the IEP Team Meeting's
purpose as well as who will be in attendance. See id. The
undisputed record reflects that the School District did not
provide such notice to Daniel's parents before the October
20 meeting.

In addition, other aspects of the parties' conduct support
the view that the October 20 meeting was a settlement
conference rather than an IEP Team Meeting. The meeting
was arranged when Clausen (counsel for the parents)
contacted counsel for the School District. Clausen's letter
suggesting a meeting referred to it as a "settlement
conference," and the response by the counsel for the School
District never objected to this characterization.
Furthermore, each person in attendance (including counsel
for the School District but excluding Clausen) signed a
sheet of paper titled "Settlement Conference." Whether or
not these two references standing alone would establish as
a matter of law that what took place on October 20 was not
an IEP Team Meeting, I can reach no other conclusion
when the evidence is considered in its entirety. I therefore
would affirm the District Court's judgment on this alternate
ground.

A True Copy:
Teste:

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

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