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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br>                                  <br> <br> <br>No. 98-1244 <br> <br> <br>                      STATE OF NEW HAMPSHIRE <br>     (DEPARTMENT OF CORRECTIONS AND DEPARTMENT OF EDUCATION), <br> <br>                      Petitioner, Appellee, <br> <br>                                v. <br> <br>                           MARC ADAMS, <br> <br>                      Respondent, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br>         [Hon. Steven J. McAuliffe, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>           Aldrich and Coffin, Senior Circuit Judges. <br>                                 <br> <br> <br>     Jon Meyer, with whom Backus, Meyer, Solomon, Rood & Branch, <br>Peter S. Smith, and Disabilities Rights Center were on brief, for <br>appellant. <br>     Nancy J. Smith, Assistant Attorney General, with whom Philip <br>T. McLaughlin, Attorney General, was on brief, for appellee. <br> <br> <br> <br> <br> <br>November 12, 1998 <br> <br> <br> <br>

  SELYA, Circuit Judge.  After the district court denied <br>Marc Adams' application for attorneys' fees on the ground that he <br>had not prevailed in proceedings under the Individuals with <br>Disabilities Education Act (IDEA), 20 U.S.C.  1400-1485, Adams <br>launched this appeal.  We affirm. <br>I.  BACKGROUND <br>  In 1991, a New Hampshire state court sentenced Adams to <br>15-to-30 years in the state penitentiary for manslaughter.  After <br>Adams began serving his sentence (at age 20), he pointed to a <br>learning disability, alleged a denial of his entitlement to a free <br>and appropriate public education (FAPE) under the IDEA, and <br>requested a due process hearing.  Prior to the hearing, the parties <br>reached an accord, embodied in a consent decree (the Decree) <br>entered by the hearing officer.  The Decree confirmed Adams' <br>entitlement to a FAPE and obligated the school district in which <br>the prison was located to develop an individualized education <br>program (IEP) for each year of a two-year span (apparently <br>compensating for a period during which Adams had not received a <br>FAPE).  The IEP took effect early in 1993.  The burden of <br>implementation fell on the State. <br>     When the parties framed the IEP, Adams was classified by <br>correctional authorities as a moderately high-risk (C-4) inmate and <br>housed accordingly.  This classification permitted full <br>implementation of his IEP.  Adams thereafter committed a series of <br>disciplinary infractions, resulting in a change of classification <br>to C-5 (maximum security risk) and placement in the prison's secure <br>housing unit (SHU).  Inmates housed in the SHU are subject to <br>severe constraints  on movement (e.g., they are permitted neither <br>to interact with convicts in other classifications nor to leave the <br>SHU except for medical emergencies and other exigencies).  On the <br>infrequent occasions when they do depart the SHU, C-5 inmates are <br>handcuffed, shackled, and accompanied by guards.  Thus, although <br>the IEP entitled Adams to 5 hours of daily instruction and <br>counseling   an entitlement that the State initially fulfilled   <br>his placement in the SHU led ineluctably to a disruption of this <br>schedule. <br>     Faced with a conflict between the realization of <br>legitimate security considerations and literal compliance with the <br>IEP's terms, the State asserted the primacy of the former.  Adams <br>disagreed and again sought a due process hearing.  The essence of <br>his complaint was that the security constraints which impeded <br>delivery of the requisite educational services to inmates in the <br>SHU did not amount to a valid justification for shirking <br>responsibilities imposed under the IDEA.  An administrative hearing <br>was held, see 20 U.S.C.  1415(b)(2), and, at its conclusion, Adams <br>filed a "Request for Relief."  In it, he sought to compel the State <br>to deliver the promised educational programs according to the tenor <br>of the IEP, regardless of his security classification, and to <br>provide an additional period of education to compensate for <br>intervals during which the State had refused to do so. <br>     The hearing officer accepted Adams' thesis:  he concluded <br>that the IDEA trumped the prison's security regime and held that, <br>by putting security uppermost, the State had failed to satisfy its <br>obligations under the IEP.  Consequently, he ordered the State <br>either to allow the IEP to be implemented within the SHU as <br>written, or, in the alternative, to permit Adams to leave the SHU <br>to attend classes, notwithstanding his security classification.  <br>The hearing officer also granted Adams an additional period of <br>compensatory education equal to the period from December 16, 1992, <br>until the State began fully implementing Adams' IEP. <br>     The State petitioned the district court for judicial <br>review of this decision.  See 20 U.S.C.  1415(e)(2).  While the <br>appeal was pending, Adams' initial IEP expired.  Thereafter, on <br>March 21, 1996, the district court, concluding that the IDEA did <br>not override the State's penological interests, vacated the hearing <br>officer's orders.  Rather than remanding the case, the court <br>retained jurisdiction and directed the parties to develop a new <br>IEP, taking into account (1) Adams' entitlement to a FAPE while <br>incarcerated; (2) the State's legitimate security and other <br>penological concerns; (3) the potentiality of Adams' <br>reclassification and the need for any revised IEP to avoid <br>"thwart[ing] the prison's legitimate need to preserve order and <br>discipline among inmates"; and (4) the importance of flexibility <br>and the need to reach accommodations. <br>     Some nine months later, the parties negotiated an <br>agreement (the Agreement) that established a new IEP under which <br>Adams, then 25 years of age, was to receive two additional years of <br>compensatory education.  The new IEP was patterned on the old IEP <br>but, because Adams had graduated from high school during the <br>implementation of the old IEP, the substance of the new IEP was <br>altered slightly to incorporate several college-level courses. <br>     After the parties advised the district court of the <br>Agreement, Adams revivified his earlier claim for counsel fees, <br>asseverating that he had prevailed because the adversary <br>proceedings produced the neoteric IEP (which, in his view, afforded <br>him substantial benefits that he otherwise would not have <br>obtained).  The State demurred, arguing that the court's vacation <br>of the hearing officer's orders demonstrated that it, not Adams, <br>was victorious in the adversary proceedings, and that the context <br>in which the second IEP was developed demonstrated both the <br>relative insignificance of the relief obtained and the attenuation <br>of the asserted causal link between the adversary proceedings and <br>that relief.  The district court agreed with the State on both <br>scores and denied Adams' application.  This appeal followed. <br>II.  ANALYSIS <br>     The central issue in this case relates to whether  Adams <br>prevailed within the purview of 20 U.S.C.  1415(e)(4)(B), which <br>permits a district court, in its discretion, to "award reasonable <br>attorneys' fees as part of the costs to the parents . . . of a <br>child or youth with a disability who is the prevailing party."  The <br>appropriate analytic framework requires a fee-seeker to show both <br>materiality and causation as prerequisites to achieving prevailing <br>party status.  See Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).  <br>In conducting this tamisage, and in construing section <br>1415(e)(4)(B) generally, cases decided under kindred federal fee- <br>shifting statutes, such as the Fees Act, 42 U.S.C.  1988, furnish <br>persuasive authority.  See Kathleen H. v. Massachusetts Dep't of <br>Educ., ___ F.3d ___, ___ (1st Cir. 1998) [No. 98-1006, slip op. at <br>13]. <br>     The materiality component requires that, to qualify as a <br>prevailing party, one must succeed on some significant claim within <br>the litigation, thereby achieving at least some of the relief <br>envisioned.  See Texas State Teachers Ass'n v. Garland Indep. Sch. <br>Dist., 489 U.S. 782, 791 (1989).  In the Court's words, a plaintiff <br>satisfies the materiality component when he achieves "relief on the <br>merits of his claim" and that relief "materially alters the legal <br>relationship between the parties by modifying the defendant's <br>behavior in a way that directly benefits the plaintiff."  Farrar, <br>506 U.S. at 111-12.  The causation component of the prevailing <br>party inquiry is similarly straightforward.  It requires that "the <br>party either must have enjoyed some bottom-line litigatory success <br>or her suit must have had a catalytic effect in bringing about a <br>desired result."  Guglietti v. Secretary of HHS, 900 F.2d 397, 399 <br>(1st Cir. 1990).  The basic standard of review is for abuse of <br>discretion.  See Kathleen H., ___ F.3d at ___ [slip op. at 14]; <br>McDonald v. Secretary of HHS, 884 F.2d 1468, 1474 (1st Cir. 1989). <br>     In this instance the district court resolved both aspects <br>of the prevailment inquiry adversely to the appellant.  As to <br>materiality, the court noted that the struggle for primacy between <br>the State's penological and security interests, on one hand, and <br>Adams' interest in literal compliance with the IEP, on the other <br>hand, formed the centerpiece of the dispute.  Because the State won <br>this struggle   indeed, that triumph formed the basis for the <br>district court's vacation of the hearing officer's orders   it <br>"prevailed" completely.  Concomitantly, the court said that Adams <br>"prevailed" on no claim that yielded significant relief; the <br>additional compensatory education that he gained was de minimis in <br>the broader context of the litigation and the Agreement neither <br>"materially altered the nature of [the parties'] legal <br>relationship, nor . . . compel[led] the State to modify its <br>behavior in a way th[at] directly benefitted Adams."  We reiterate <br>this holding, but we do not evaluate it.  One who seeks "prevailing <br>party" status under the IDEA must prove both materiality and <br>causation, and, since causation is dispositive here, see infra, we <br>elect to focus on the latter. <br>     On the question of causation, the district court held <br>flatly that Adams' resort to the adversary process earned him <br>nothing that he could not easily have obtained for the asking.  <br>Assuming arguendo that additional secondary education represents <br>significant relief (as the appellant asserts), the question of <br>causation boils down to whether the pursuit of adversarial <br>proceedings precipitated that relief.  As the fee-seeker, Adams <br>must carry the devoir of persuasion on this issue.  See Hensley v. <br>Eckerhart, 461 U.S. 424, 437 (1983).  He may do so in one of two <br>ways:  through either a "merits" or a "catalyst" theory of <br>causation.  See Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. <br>1978).  Because the appellant tries to travel both routes, we <br>address these alternatives in sequence. <br>                       A.  The Merits Test. <br>     A fee-seeker who aspires to prevailing party status may <br>make the requisite showing of causation by satisfying the merits <br>test.  "[T]he merits test 'states the obvious, namely, that a party <br>has prevailed if [he] wins the litigation.'"  Langton v. Johnston, <br>928 F.2d 1206, 1224 (1st Cir. 1991) (quoting Coalition for Basic <br>Human Needs v. King, 691 F.2d 597, 599 (1st Cir. 1982)).  In this <br>iteration of his plea, the appellant argues that, even though the <br>district court vacated a set of administrative orders favorable to <br>him, its ruling amounted to a victory because the ruling implicitly <br>acknowledged that the State had denied him a FAPE while he <br>languished in the SHU.  To mount this argument, Adams positions the <br>denial of a FAPE as the foundation for his overarching claim and <br>posits that, since the district court impliedly recognized such a <br>denial when it directed the parties to negotiate, the court's order <br>was the functional equivalent of a vindication on the merits. <br>     This argument reads too much into the district court's <br>ruling.  In approving the State's subordination of the IEP's <br>requirements to the security concerns created by Adams' own <br>actions, the district court logically implied that no FAPE <br>violation had occurred.  Indeed, the court specifically said during <br>the subsequent hearing on Adams' motion for fees:  "Marc Adams <br>wasn't denied free appropriate education while in SHU."  And the <br>court's subsequent written order on attorneys' fees stated bluntly <br>that it had resolved the central legal issue against Adams. <br>     We have held before that a district court is the best <br>explicator of its own orders, see, e.g., Martha's Vineyard Scuba <br>Headquarters, Inc., v. Unidentified, Wrecked and Abandoned Steam <br>Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987); Lefkowitz v. Fair, <br>816 F.2d 17, 22 (1st Cir. 1987), and this case offers no occasion <br>to contravene that principle.  The parties' negotiation of a <br>revised IEP, subsequent to Adams' defeat in the district court, <br>could not transform a loss into a win. <br>                      B.  The Catalyst Test. <br>     The appellant's fallback position rests on the catalyst <br>theory.  To achieve prevailing party status under this theory, a <br>fee-seeker must demonstrate that his action served a provocative <br>function in the calculus of relief, see Guglietti, 900 F.2d at 401, <br>or, stated another way, that it "act[ed] as a 'catalyst' in <br>prompting defendants to take action to meet plaintiff's claims," <br>Nadeau, 581 F.2d at 279.  If this condition is met, and the action <br>taken is material, then the plaintiff will be deemed a prevailing <br>party "despite the lack of judicial involvement in the result."  <br>Id. <br>     Almost by definition, causation questions are fact- <br>contingent, see, e.g., Peckham v. Continental Casualty Ins. Co., <br>895 F.2d 830, 837 (1st Cir. 1990), and are best visualized from a <br>trial court's more intimate perspective.  The trial court often is <br>"in the best position to sort out coincidence from effect."  <br>Langton, 928 F.2d at 1225.  Even in a situation where some of the <br>critical events took place in an administrative forum, the trial <br>court is closer to the matter than is an appellate tribunal.  <br>Consequently, we afford deferential review to such determinations, <br>setting them aside only for abuse of discretion.  See id. <br>     The appellant posits that the filing of his second due <br>process request brought about a beneficial result (additional <br>compensatory education) that he otherwise would not have obtained.  <br>In its fee-denial order, the district court rejected this thesis.  <br>The court appropriately referenced the context in which the parties <br>forged the Agreement to demonstrate why the two additional years of <br>compensatory education were not causally linked to the due process <br>request.  It then stated: <br>     Adams obtained nothing in the . . . settlement <br>     agreement that he would not have obtained had <br>     he made a reasonable effort to resolve the <br>     situation amicably in 1993, rather than:  (1) <br>     invoke the administrative remedies available <br>     under the IDEA; and (2) interpose what was <br>     undeniably an unreasonable condition of <br>     settlement (i.e. full implementation of an <br>     unmodified IEP while he was in SHU). <br> <br>     The appellant vigorously disputes this determination.  To <br>bolster his view, he adverts to occasions during the course of the <br>underlying proceedings when the State argued against the provision <br>of additional compensatory education.  This line of reasoning fails <br>to account for the distorting force of litigation.  While the cited <br>statements (e.g., a letter dated February 10, 1996, from the <br>State's counsel to the appellant's counsel) clearly reflect some <br>recalcitrance on the State's part vis--vis additional compensatory <br>education, the proper vector point for a catalyst analysis must be <br>the defendant's position on the claim for relief prior to the onset <br>of litigation   not jousting points taken in the heat of battle.  <br>Positions adopted by parties during the course of adversarial <br>proceedings cannot be taken at face value because they tend to be <br>artificially inflated.  <br>     Viewing matters in this light, the district court found <br>that the State's reticence was no more than an understandable <br>litigatory posture, taken in response to what the court <br>characterized as a patently unreasonable demand on Adams' part.  In <br>the court's estimation, it was Adams' unflagging insistence on full <br>implementation of his IEP notwithstanding his placement in the SHU <br>that impeded a satisfactory resolution of the matter and required <br>the parties to go head to head.  The record supports this <br>assessment.  It seems plain, as the district court noted, that the <br>genesis of the dispute concerned whether Adams' IEP requirements <br>had to yield to countervailing security concerns, and that this <br>issue became the focal point of the adversary proceeding.  The <br>district court's resulting inference   that, but for this <br>controversy, a settlement which included additional compensatory <br>education probably could have been reached without resort to <br>litigation   seems eminently reasonable.  This circumstance defeats <br>the appellant's claim.  See Kathleen H., ___ F.3d at ___ [slip op. <br>at 18] (explaining that the fee-seeker must show that the school <br>district would not have included the alleged benefit in the new IEP <br>but for the litigation); Payne v. Board of Educ., 88 F.3d 392, 400 <br>(6th Cir. 1996) (similar). <br>     In all events, there is a lacuna in the appellant's <br>proof.  A party who seeks fees under a catalyst theory must show <br>that the relief ultimately obtained was sought (or at least easily <br>inferrable from what was sought) and refused (expressly or by fair <br>implication) prior to the commencement of a contested hearing.  SeeJohnson v. Bismarck Public Sch. Dist., 949 F.2d 1000, 1003 (8th <br>Cir. 1991) (finding causal relationship lacking between the filing <br>of a complaint and additional compensatory education when the <br>plaintiff had failed to pursue this relief prior to filing a due <br>process complaint); cf. Kathleen H., ___ F.3d at ___ [slip op. at <br>15-17] (rejecting the plaintiffs' characterization of their overall <br>goal and relying in part on the absence of any evidence that the <br>school district would have failed to provide the services <br>ultimately awarded but for the administrative hearing).  Adams <br>offered no such proof. <br>     The only evidence adduced here anent the State's pre- <br>litigation posture bears on the issue of whether the legal <br>obligations created by the initial IEP sufficed to override the <br>State's penological policies.  This is consistent with the <br>appellant's concession that the State's unwillingness to accede to <br>his demand for full implementation of the IEP's provisions while he <br>was housed in the SHU constituted the motivating factor prompting <br>his petition for a due process hearing.  In short, the possibility <br>of affording Adams additional compensatory education to offset the <br>forced deprivation of services occasioned by his placement in the <br>SHU was not addressed prior to the institution of adversarial <br>proceedings.  Given the paucity of other proof, this omission dooms <br>the plaintiff's claim. <br>     In a last-ditch effort to fill this void, Adams suggests <br>that his abortive attempts to reach a negotiated resolution prior <br>to initiating a due process hearing demonstrate that litigation was <br>his only viable avenue for relief.  This suggestion obscures the <br>question of what terms he attempted to negotiate.  A party who asks <br>for the moon and the stars, and then sues and loses, cannot expect <br>to receive fees when he thereafter settles for the same lesser <br>constellation that his target likely would have been willing, all <br>along, to provide.  So it is here:  Adams never made a demand for <br>additional compensatory education as a solution to the SHU problem <br>prior to his due process hearing.  To the contrary, he demanded <br>only a deviation from prison regulations in order fully to <br>accommodate the IEP already in place.  In the district court's <br>words, "[s]imply because Adams subsequently negotiated a revised <br>IEP with which he is now satisfied does not entitle him to recover <br>the substantial sums which were expended in what was a meritless <br>effort to force the State to subordinate its penological interests <br>to his IEP as written, notwithstanding obvious conflicts with the <br>prison's legitimate security and operational goals." <br>     To sum up, Adams bore the burden of demonstrating that he <br>would not have received additional compensatory education but for <br>the prosecution of his due process request.  To do that, he needed <br>to produce some convincing indication of the State's unreadiness to <br>provide compensatory education.  The district court found that <br>Adams failed to make the requisite showing.  The sticking point, <br>according to the court, was the appellant's obdurate insistence on <br>an acknowledgment that his IEP trumped the security concerns <br>embedded in the State's correctional policy, so that, even if he <br>remained in the SHU, he would be allowed to attend classes as <br>called for by his IEP.  But for this insistence, the court <br>reasoned, the State, if asked to furnish compensatory education for <br>time spent in the SHU, likely would have acquiesced.  These <br>findings are reasoned and comport with a plausible rendition of the <br>evidence.  Thus, the lower court did not abuse its discretion in <br>determining that Adams failed to establish the necessary causal <br>connection between litigation and relief. <br>     We need go no further.  The prevailing party requirement <br>is an incentive mechanism designed to encourage prompt resolution <br>of meritorious claims and to discourage unnecessary litigation.  <br>This policy rationale, evidenced in the Court's treatment of <br>marginal victories, see, Farrar, 506 U.S. at 115, and unrelated <br>claims, see, Hensley, 461 U.S. at 435, is served by declining to <br>award fees when litigation yields only relief that in all <br>probability was attainable without the time and expense of <br>adversarial proceedings. <br> <br>Affirmed.</pre>

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