                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-4630
                                     _____________

                                  D.B.; L.B., o/b/o H.B.

                                            v.

                 GLOUCESTER TWP SCHOOL DISTRICT;
THOMAS D. SEDDON, individually and in his official capacity as the Superintendent of
             Schools of the Gloucester Township School District;
   JOHN TIGHE, individually and in his official capacity as the Director of Special
             Services of the Gloucester Township School District,
                                                    Appellants

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 1:08-cv-05667)
                      District Judge: Honorable Joseph E. Irenas

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 12, 2012

        Before: McKEE, Chief Judge, FUENTES and JORDAN, Circuit Judges

                              (Opinion filed: July 19, 2012)

                                        OPINION

McKEE, Chief Judge.

      D.B. and L.B. (“Plaintiffs”) challenged Individualized Education Plans (“IEPs”)

developed for their minor daughter, H.B., who is a student in New Jersey‟s Gloucester

Township School District (“Gloucester”). Gloucester, the Superintendent of Schools, and

the Director of Special Services (“Defendants”) appeal the District Court‟s grant of
Plaintiffs‟ motion for summary judgment on Plaintiffs‟ claim for equitable relief under

the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. For

the reasons that follow, we will affirm.

                                              I.

       Since we write primarily for the parties, who are familiar with the background of

this case, we discuss the events leading to this appeal only briefly. In 2008, Plaintiffs,

acting on H.B.‟s behalf, filed an amended petition for a due process hearing, challenging

Gloucester‟s proposed IEPs for the 2007-2008 and 2008-2009 school years. The ALJ

who was assigned to the case concluded that Plaintiffs “have not met their burden of

proof of establishing that [a free appropriate public education (“FAPE”)] was not

provided or that H.B. should be placed in the regular education program for a longer

period of time than what was established by [Gloucester].” (J.A. at 56.)

       Thereafter, Plaintiffs filed suit in District Court, challenging the ALJ‟s decision

and asserting claims under the IDEA, the Americans with Disabilities Act, the

Rehabilitation Act of 1973, 42 U.S.C. § 1983, and the New Jersey Law Against

Discrimination. Their amended complaint also challenged the proposed IEP for the

2009-2010 school year.

       Plaintiffs ultimately moved for summary judgment on their IDEA claim, and

Defendants moved for summary judgment on all of Plaintiffs‟ claims. On November 17,

2010, the District Court vacated the ALJ‟s decision and granted summary judgment in

favor of Plaintiffs to the extent their IDEA claim sought equitable relief. The court also

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ordered Defendants to “draft an [IEP] for H.B. in accordance with the procedural

requirements of the IDEA.” (Id. at 4.) The court noted that “[a]ttorneys‟ fees and related

costs are available to Plaintiffs to the extent they are the prevailing party and make a

proper motion before this Court for such fees.” (Id. at 24 (citing 20 U.S.C. §

1415(i)(3)(B).) To the extent Plaintiffs‟ IDEA claim sought damages, the District Court

granted summary judgment in Defendants‟ favor. The court also granted Defendants‟

motion for summary judgment on Plaintiffs‟ § 1983 claim, and dismissed Plaintiffs‟

remaining claims as moot.

       After Defendants filed this appeal, Plaintiffs moved for attorneys‟ fees and costs

as prevailing parties pursuant to § 1415(i)(3)(B). The District Court dismissed that

motion without prejudice, and granted Plaintiffs leave to “reraise” the motion nunc pro

tunc “pending the outcome of Defendants‟ appeal.” (Dist. Ct. Order entered Apr. 28,

2011, at 2.)

                                             II.

       The District Court had jurisdiction to review the ALJ‟s decision pursuant to 20

U.S.C. § 1415(i)(2), and we have jurisdiction over the court‟s November 17, 2010 order

pursuant to 28 U.S.C. § 1291. “When considering an appeal from a state administrative

decision under the IDEA, district courts apply a nontraditional standard of review,

sometimes referred to as „modified de novo‟ review.” D.S. v. Bayonne Bd. of Educ., 602

F.3d 553, 564 (3d Cir. 2010). Under this standard of review, a district court must give

“due weight” and deference to the ALJ‟s findings. Id. “Factual findings from the

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administrative proceedings are to be considered prima facie correct. If a reviewing court

fails to adhere to them, it is obliged to explain why.” S.H. v. State-Operated Sch. Dist. of

Newark, 336 F.3d 260, 270 (3d Cir. 2003) (internal quotation marks and citation

omitted). “Within the confines of these standards, a district court is authorized to make

findings based on the preponderance of the evidence and grant the relief it deems

appropriate . . . .” D.S., 602 F.3d at 564. We review a district court‟s factual findings for

clear error, and exercise plenary review over its legal conclusions. Id.

                                             III.

       “The IDEA requires states receiving federal education funding to provide every

disabled child with a [FAPE].” Ridley Sch. Dist. v. M.R., 680 F.3d 260, 268 (3d Cir.

2012) (citing 20 U.S.C. § 1412(a)(1)). “A school district provides a FAPE by designing

and implementing an individualized instructional program set forth in an [IEP], which

must be reasonably calculated to enable the child to receive meaningful educational

benefits in light of the student‟s intellectual potential.” P.P. v. W. Chester Area Sch.

Dist., 585 F.3d 727, 729-30 (3d Cir. 2009) (internal quotation marks and citation

omitted). “[P]arents play[] „a significant role‟ in this process,” Winkelman v. Parma City

Sch. Dist., 550 U.S. 516, 524 (2007) (citation omitted), and the IDEA “sets up general

procedural safeguards that protect the informed involvement of parents in the

development of an education for their child.” Id. (citing 20 U.S.C. §§ 1414, 1415).

       “The parent or guardian of a minor student who is denied the rights and

procedures set forth in the IDEA is afforded the opportunity to file an administrative

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complaint and to appeal an adverse determination to a federal district court.” C.H. v.

Cape Henlopen Sch. Dist., 606 F.3d 59, 66 (3d Cir. 2010) (citing 20 U.S.C. §§

1415(b)(6), (i)(2)). “[T]he Supreme Court has directed that a school district‟s liability for

violations of the IDEA is a two-fold inquiry: (1) Has the school district complied with

the procedures set forth in IDEA?; and (2) Has the school district fulfilled its obligation

to provide the student with a FAPE?” C.H., 606 F.3d at 66 (citing Bd. of Educ. of the

Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)). A

procedural violation constitutes a denial of a FAPE when that violation causes

“„substantive harm‟” to the child or her parents. C.H., 606 F.3d at 66 (quoting Knable ex

rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 765 (6th Cir. 2001)). Such harm is

present when the procedural violation “„significantly impede[s] the parent‟s opportunity

to participate in the decision-making process regarding the provision of a FAPE to the

parent‟s child.‟” C.H., 606 F.3d at 67 (alteration added) (quoting 34 C.F.R. §

300.513(a)(2)).

       Here, the District Court concluded that Gloucester had “denied [Plaintiffs] any

meaningful participation in the development of the IEPs in violation of IDEA.” (J.A. at

21.) The court determined that, for each of the IEPs at issue,

              [Gloucester] had come to definitive conclusions on H.B[.]‟s
              placement without parental input, failed to incorporate any
              suggestions of the parents or discuss with the parents the
              prospective placements, and in some instances even failed to
              listen to the concerns of the parents. It is clear from the
              evidence before the Court that the IEPs were predetermined
              ....

                                              5
(Id. at 20-21.)

       Defendants argue that the District Court did not apply the modified de novo

standard and, thus, failed to afford proper weight to the ALJ‟s decision. We disagree. In

its opinion, the District Court explicitly stated that the modified de novo standard

governed its review, and nothing on this record undermines that statement. The only

reason that the court did not defer to the ALJ was because the ALJ did not make any

factual findings as to whether Gloucester had complied with the IDEA‟s procedural

requirements. Although Defendants assert that the ALJ‟s silence should be construed as

“tacit approval” of the method in which Gloucester developed the IEPs for H.B.,

Defendants cite no authority to support this proposition, and we agree with the District

Court that it is unpersuasive. Moreover, Defendants do not even argue, let alone

establish, that the factual findings undergirding the District Court‟s conclusion that

Gloucester “predetermined” H.B.‟s placement without parental input, (see id. at 17-20),

are clearly erroneous.1


1
 Defendants highlight, inter alia, the fact that Plaintiffs “were involved in the decision to
retain Douglas Developmental as an independent evaluator of H.B.,” (Defs.‟ Opening Br.
19), and that certain “modifications” proposed by Plaintiffs — for example, use of a
“white-off” board, visual supports, and use of computer time — were “readily
incorporated into the 2008-2009 and 2009-2010 IEPs,” (id. at 18). This evidence, even
when coupled with Defendants‟ other citations to the record, does not warrant disturbing
the District Court‟s decision. Indeed, Plaintiffs‟ approval of an independent evaluator
was just one of their several rights under the IDEA, see Schaffer v. Weast, 546 U.S. 49,
53 (2005), and neither that approval, nor Gloucester‟s incorporation of some of Plaintiffs‟
proposed modifications, establishes that Gloucester did not predetermine where H.B.
would be placed.

                                              6
       Defendants also contend that the District Court should have considered not only

Gloucester‟s compliance with the IDEA‟s procedural requirements, but also whether the

proposed IEPs were “reasonably calculated to enable [H.B.] to receive educational

benefits.” (Defs.‟ Opening Br. 27 (quotation marks and citation omitted).) We disagree.

As noted above, a school district‟s violation of the IDEA‟s procedural requirements may

constitute a failure to provide a FAPE. Since the District Court determined that such a

violation had occurred here, there was no need for the court to consider the merits of the

proposed IEPs.

       Defendants‟ final argument is that Plaintiffs are not entitled to recoup attorneys‟

fees and costs under § 1415(i)(3)(B). This argument is premature, for the District Court

has yet to award this relief. If Plaintiffs renew their motion for attorneys‟ fees and costs,

and the District Court grants that motion, Defendants may then appeal from that

judgment. We express no opinion on the merits of such a motion or Defendants‟

likelihood of prevailing on appeal.

                                             IV.

       In light of the above, we will affirm the District Court‟s November 17, 2010 order.




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