United States Court of Appeals

For the First Circuit

No. 04-1546

CHELSEA SMITH,

Plaintiff, Appellant,

v.

FITCHBURG PUBLIC SCHOOLS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Leval,* Senior Circuit Judge.

Theodore M. Hess-Mahan, with whom Shapiro Haber & Urmy LLP,

Julia K. Landau, and Massachusetts Advocates for Children, were on

brief, for appellant.

Doris R. MacKenzie Ehrens, with whom Mary L. Gallant, and

Murphy, Hesse, Toomey & Lehane, LLP, were on brief, for appellee.

March 22, 2005

*Of the Second Circuit Court of Appeals, sitting by designation.
1Under the IDEA, it is the aggrieved child's parents who may

initiate a due process hearing under 20 U.S.C. § 1415(f), and who

may seek attorneys' fees as prevailing parties in such a hearing

under 20 U.S.C. § 1415(i)(3). For convenience, however, we use

"Chelsea" and "Chelsea's Parents" interchangeably throughout the

opinion.

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STAHL, Senior Circuit Judge. Plaintiff-Appellant Chelsea

Smith ("Chelsea"), by and through her parents, Linda and Deane

Smith ("Chelsea's Parents"),1 initiated a proceeding before the

Bureau of Special Education Appeals ("BSEA"), pursuant to the

Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §

1400 et seq., against the Fitchburg Public Schools ("Fitchburg")

seeking home and hospital special education services. After a

series of pre-hearing orders and ultimately a private settlement,

Chelsea received all of the relief sought. Chelsea's Parents

subsequently commenced this action in the district court to recover

attorneys' fees and expenses as a prevailing party pursuant to 20

U.S.C. § 1415(i)(3), which provides for an award of attorneys' fees

to parents of a student with a disability who is the "prevailing

party" in an action or proceeding brought under the IDEA. The

district court granted summary judgment in favor of Fitchburg on

the ground that Chelsea was not a "prevailing party" within the

meaning of Buckhannon Board & Care Home, Inc. v. West Virginia

Department of Health and Human Resources, 532 U.S. 598 (2001). We

affirm.
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I. BACKGROUND

The material facts in this case are undisputed. At the

time these proceedings were initiated, Chelsea was a thirteen-yearold girl living with her parents in Fitchburg, Massachusetts and

enrolled as a student at St. Joseph's School. When Chelsea was

two, she was diagnosed with liver cancer and underwent extensive

treatment including chemotherapy, radiation, and surgery. As a

result of that treatment, she suffers from partial hearing loss and

ongoing gastrointestinal, respiratory, and other serious

impairments. She depends on hearing aids and classroom assistance

because of her disability.

Chelsea attended the Fitchburg public schools from 1993

to 1997, during which time Fitchburg provided special education

services consisting of speech and language therapy. In 1997,

Chelsea's Parents withdrew her from the public school and enrolled

her in St. Joseph's School, a non-public, parochial school located

in Fitchburg. Fitchburg continued to provide Chelsea with special

education services at St. Joseph's.

In early 2001, Chelsea became ill due to complications

from her earlier treatment, requiring multiple prolonged

hospitalizations and surgeries. As a result, Chelsea missed a

significant amount of school. In June 2001, Chelsea was

hospitalized again, and, in August 2001, when it became clear that

Chelsea would be absent from school for an extended period of time,
2The terms "TEAM meeting" and "IEP meeting" are used

interchangeably. Both terms refer to a meeting of a disabled

child's "IEP Team" which consists of "(i) the parents of a child

with a disability; (ii) at least one regular education teacher of

such child (if the child is, or may be, participating in the

regular education environment); (iii) at least one special

education teacher . . . ; (iv) a representative of the local

educational agency . . . ; (v) an individual who can interpret the

instructional implications of evaluation results, who may be a

member of the team described in clauses (ii) through (vi); (vi) .

. . other individuals who have knowledge or special expertise

regarding the child . . . ; and (vii) whenever appropriate, the

child with a disability." 20 U.S.C. § 1414(d)(1)(B).

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her parents asked that the principal of St. Joseph's contact

Fitchburg's special education department to request special

education services for Chelsea while she was hospitalized.

Fitchburg informed the principal that it was not required to

provide such services because Chelsea was a regular student

enrolled in a non-public school.

In September 2001, Chelsea's Parents hired a private

tutor to provide Chelsea with educational services while she was in

the hospital, and directed that the bills be sent directly to

Fitchburg. Fitchburg refused to pay these bills.

As a result, on November 6, 2001, Chelsea's Parents filed

a request for an administrative hearing before the BSEA seeking an

order requiring Fitchburg to: (1) pay for Chelsea's tutoring at

home and in the hospital; (2) convene an IEP meeting to address

Chelsea's special education needs;2 and (3) implement the resulting
3IEP is the abbreviation for an "Individualized Education

Program," which is defined in the IDEA as "a written statement for

each child with a disability that is developed, reviewed, and

revised in accordance with this section and that includes-(i) a

statement of the child's present levels of educational performance

. . .; (ii) a statement of measurable annual goals . . .; (iii) a

statement of the special education and related services and

supplementary aids and services to be provided to the child . . .;

[and] (vi) the projected date for the beginning of the services .

. . and the anticipated frequency, location, and duration of those

services . . . ." 20 U.S.C. § 1414(d)(1)(A).

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IEP.3 Chelsea was subsequently discharged from the hospital on

November 11, 2001, although her medical condition prevented her

from returning to school at that time. Because Fitchburg continued

to refuse to provide special educational services for Chelsea,

Chelsea's Parents arranged for Chelsea to be tutored at home.

On December 4, 2001, the BSEA Hearing Officer initiated

a conference call with the parties, and at that time, Fitchburg

orally agreed to convene a TEAM meeting on December 12, 2001 to

evaluate Chelsea's special education needs. On December 12, 2001,

because Fitchburg had not convened the TEAM meeting, Chelsea filed

a motion requesting that the BSEA Hearing Officer order Fitchburg

to convene the meeting. Fitchburg did not oppose the motion, and

on December 20, 2001, the BSEA Hearing Officer issued a ruling

granting Chelsea's motion, stating that "Fitchburg will use its

best efforts to convene the TEAM on January 4, 2002 but in no event

will the TEAM be convened any later than January 11, 2002." On

January 10, 2002, Fitchburg's counsel informed Chelsea's Parents

that the TEAM meeting would take place the next day. Due to the
4The record shows that Chelsea's Parents were provided with a

handwritten draft of the IEP at the conclusion of the TEAM meeting

on January 18, 2002, however, at that time, Fitchburg indicated

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short notice and conflicts with Chelsea's medical appointments, the

TEAM meeting was rescheduled and eventually convened on January 18,

2002.

As a result of the TEAM meeting, Fitchburg determined

that Chelsea was entitled to receive "home/hospital education

services" despite her enrollment in a private school. Soon

thereafter, the parties, under the guidance of the BSEA Hearing

Officer, commenced negotiations for a settlement agreement to

include home/hospital tutoring, reimbursement for prior tutoring

expenses, execution of the IEP, and payment of attorneys' fees.

Following a BSEA Hearing Officer-initiated conference call, the

Hearing Officer issued an Order, noting that the "[p]arties

reported that they were discussing settlement," and confirming that

"School Counsel will send a written proposal for settlement by

March 25, 2002 at 12:00 p.m." The Hearing Officer also scheduled

a follow-up conference call for March 25, 2002 at 3:00 p.m.

Fitchburg sent a draft settlement agreement to Chelsea on

March 21, 2002. After the March 25, 2002 conference call, the BSEA

Hearing Officer issued an Order to Show Cause why the case should

not be dismissed in light of the parties' impending settlement. At

that time, however, Fitchburg had not yet provided Chelsea's

Parents with the proposed IEP4 and a signed copy of the settlement
that it would have to "clean up" the IEP, and Fitcbhurg's counsel

described this "cleaning up" as "correct[ing] grammar, punctuation,

etc. and put[ting] the IEP into typewritten form."

5The actual order says "Thursday, May 2," although the parties

do not seem to dispute that the IEP was due on May 9, the day

before the conference call scheduled for May 10.

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agreement. Accordingly, Chelsea's counsel responded to the show

cause order, requesting that the case remain active until Chelsea

received the IEP and both parties had executed the settlement

agreement. On April 29, 2002, after another conference call, the

BSEA Hearing Officer ordered Fitchburg to send Chelsea's Parents

the IEP by Thursday, May 9, 2002 at 3:00 p.m.5 and scheduled a

conference call for Friday, May 10, 2002 to further discuss the

pending settlement. That order stated that Fitchburg's failure to

send the IEP by May 10, 2002 would result in sanctions. Fitchburg

faxed the IEP on May 9, 2002, but did not forward a signed copy of

the settlement agreement. During the May 10, 2002 conference call,

Fitchburg said that it would send Chelsea's Parents a copy of the

settlement agreement, and would review Chelsea's Parents' proposed

changes to the IEP. Fitchburg's promises were again memorialized

in an Order issued by the BSEA Hearing Officer that same day, and

a follow-up conference call was scheduled for May 21, 2002.

Chelsea's Parents forwarded the proposed changes to the IEP on May

14, 2002, and on May 20, 2002, sent a letter to Fitchburg's counsel

noting that they had not yet heard back from Fitchburg about the
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proposed changes, despite the fact that a conference call was

scheduled for the next day.

On May 23, 2002, the BSEA Hearing Officer issued a second

ruling, this time ordering, under threat of sanctions, that

Fitchburg respond to Chelsea's Parents' proposed changes to the IEP

no later than May 31, 2002. The ruling also set up a conference

call for June 3, 2002.

During the June 3, 2002 conference call, the parties

discussed and agreed upon several proposed changes to the IEP. In

addition, the parties acknowledged that it was time to convene

another TEAM meeting to discuss services for Chelsea during the

summer months. In an order memorializing the conference call, the

BSEA Hearing Officer stated that Fitchburg would send Chelsea's

Parents a copy of the settlement agreement and would execute the

changes to the IEP agreed upon in the conference call. The order

also stated that by the next conference call, scheduled for June

11, 2002, a date for the TEAM to reconvene would be set. 

On June 7, 2002, Fitchburg executed the settlement

agreement and forwarded it to Chelsea's counsel. Fitchburg did

not, however, send an executed IEP reflecting the changes agreed

upon during the June 3, 2002 conference call. On June 10, 2002,

Chelsea's counsel sent Fitchburg a letter stating that Chelsea had

not received the signed IEP. On June 19, 2002, Chelsea's counsel

sent the BSEA Hearing Officer a letter stating that Chelsea still
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had not received the signed IEP. On June 26, 2002, Chelsea's

counsel sent yet another letter to the BSEA Hearing Officer stating

Chelsea still had not received the signed IEP, and requesting a

Hearing Officer-initiated conference call to address Fitchburg's

failure to provide a signed copy of the IEP.

On July 2, 2002, the BSEA Hearing Officer issued an order

requiring Fitchburg to "execute a signed IEP no later than July 5,

2002." The order stated that Fitchburg's failure to do so might

result in sanctions. On July 16, 2002, Fitchburg sent Chelsea's

Parents a signed IEP, and Chelsea's Parents executed the settlement

agreement that same day. The settlement agreement provided, inter

alia, that (1) Chelsea is a child in need of special education

services; (2) Fitchburg would reimburse Chelsea's Parents for

Chelsea's home/hospital tutoring expenses; (3) Chelsea's Parents

would withdraw with prejudice their request for a hearing before

the BSEA; (4) the settlement agreement did not constitute an

admission that the services previously proposed or implemented for

Chelsea were in any way inappropriate or inadequate; and (5) the

Agreement did not release the claims of Chelsea's Parents against

Fitchburg for payment of their legal fees in connection with this

matter and that the Agreement did not, in any way, affect the

Parents' right to seek payment of their legal fees from Fitchburg

in an appropriate forum.
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After signing the settlement agreement, Chelsea's Parents

withdrew their request for a hearing. The case was dismissed on

July 17, 2002. On August 15, 2002, Chelsea's Parents brought this

action in the District Court of Massachusetts, alleging that

Chelsea was a "prevailing party" in a proceeding under the IDEA,

and thus was entitled to attorneys' fees, expenses and costs

pursuant to 20 U.S.C. § 1415(i)(3)(B). Chelsea's Parents also

claimed they were entitled to fees because 20 U.S.C. §

1415(i)(3)(D)(ii) provides that attorneys' fees may be awarded if

an IEP meeting is "convened as a result of an administrative

proceeding." The parties filed cross-motions for summary judgment.

The district court allowed Fitchburg's motion for summary judgment,

holding that "[t]he ultimate settlement (rather than adjudication)

of this case compels the denial of prevailing party status to

[Chelsea]." Chelsea's motion for summary judgment was denied.

Chelsea's Parents filed this timely appeal.

II. DISCUSSION

The issue we must decide is whether the pre-hearing

orders that precipitated the final resolution of Chelsea's claim by

private settlement, a few accompanied by the threat of sanctions,

provide sufficient judicial imprimatur to make Chelsea a

"prevailing party" for purposes of the Supreme Court's reasoning in

Buckhannon. We review this question of law de novo. Doe v.

Boston Pub. Sch., 358 F.3d 20, 23 (1st Cir. 2004).
6The Massachusetts Special Education Law, Mass. Gen. Laws ch.

71B, implements the requirements of the IDEA.

720 U.S.C. § 1415(f) provides: "Whenever a complaint has been

received [with respect to any matter relating to the

identification, evaluation, or educational placement of the child,

or the provision of a free appropriate public education to such

child], the parents . . . involved in such complaint shall have an

opportunity for an impartial due process hearing." In

Massachusetts, such hearings are conducted by the Bureau of Special

Education Appeals ("BSEA") by a BSEA hearing officer.

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A. The IDEA and the Massachusetts Special Education Law

The IDEA was enacted "to ensure that all children with

disabilities have available to them a free appropriate public

education . . . designed to meet their unique needs." 20 U.S.C §

1400(d)(1)(A).6 In order to determine whether a child has a

disability for purposes of the IDEA, and to evaluate the particular

needs of that child if deemed eligible for special education

services, an IEP Team is to convene and prepare an IEP. Id. §§

1414(d)(1)(A) & (B). In the event the state or local educational

agencies do not follow this procedure, for example by not convening

an IEP Team meeting when required, not preparing and implementing

an IEP in a timely fashion, or not preparing an IEP that adequately

addresses the needs of the child, the IDEA provides certain

procedural safeguards, including the right to an impartial due

process administrative hearing, see id. § 1415(f),7 and a right to

appeal an adverse decision in that hearing to the federal district

court, see id. § 1415(i)(2). The IDEA also provides that the

parents of a child with a disability who is the prevailing party in
8Although the issue in Buckhannon was the fee-shifting

provisions of the Fair Housing Amendments Act of 1988, 42 U.S.C. §

3601 et seq., and the Americans With Disabilities Act of 1990, 42

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such an administrative proceeding or law suit may recover, in the

court's discretion, reasonable attorneys' fees. Id. §

1415(i)(3)(B).

The award of attorneys' fees for a prevailing party under

the IDEA is subject to certain limitations, including one that

provides: "Attorneys' 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 . . . " Id. §

1415(i)(3)(D)(ii). Chelsea's Parents contend that an award under

this paragraph is not subject to the "prevailing party"

requirements of the general IDEA provision dealing with the award

of attorneys' fees, id. § 1415(i)(3)(B)(i). We disagree. Section

1415(i)(3)(B) of Title 20 clearly provides that the prevailing

party requirement applies to "any action or proceeding brought

under this section." (Emphasis added.). This "section" refers to

"section 1415," and includes all administrative and civil actions

brought under the IDEA. 

B. Buckhannon and the "Prevailing Party" Requirement

To evaluate whether a party is a "prevailing party" for

purposes of the IDEA, we are guided by the Supreme Court's decision

in Buckhannon Board & Care Home, Inc. v. West Virginia Department

of Health & Human Resources, 532 U.S. 598 (2001).8 See Doe, 358
U.S.C. § 12101 et seq., this court held in Doe that the Supreme

Court's reasoning in "Buckhannon is presumed to apply generally to

all fee-shifting statutes that use the 'prevailing party'

terminology, including the IDEA." Doe, 358 F.3d at 25 (citing T.D.

v. La Grange Sch. Dist. No. 102, 349 F.3d 469, 475 (7th Cir.

2003)).

9It is undisputed that, for purposes of the IDEA, a party may

"prevail" in an administrative hearing--thus the appropriate

involvement of a BSEA hearing officer can provide the necessary

"judicial imprimatur."

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F.3d at 29-30 (holding that Buckhannon applies to the fee-shifting

provision of the IDEA). In Buckhannon, the Supreme Court held that

for a party to be considered "prevailing," there must be a

"material alteration of the legal relationship of the parties,"

532 U.S. at 604 (quotation omitted), and there must be "judicial

imprimatur on the change." Id. at 605 (emphasis in original).9

 The Buckhannon Court went on to state that a "defendant's

voluntary change in conduct, although perhaps accomplishing what

the plaintiff sought to achieve by the lawsuit, lacks the necessary

judicial imprimatur." Id. (emphasis in original). The Court then

noted that it had "only awarded attorneys' fees where the plaintiff

ha[d] received a judgment on the merits or obtained a court-ordered

consent decree." Id. By contrast, the Court stated that it had

not awarded attorneys' fees "where the plaintiff ha[d] secured the

reversal of a directed verdict, or acquired a judicial

pronouncement that the defendant ha[d] violated the Constitution

unaccompanied by 'judicial relief.'" Id. at 605-06 (emphasis in

original) (internal citation omitted). The Court expressly
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rejected the "'catalyst theory,' which posits that a plaintiff is

a 'prevailing party' if it achieves the desired result because the

lawsuit brought about a voluntary change in the defendant's

conduct." Id. at 601, 605.

C. Cases Interpreting Buckhannon

There is disagreement among our sister circuits whether

the Supreme Court intended "judgments on the merits" and "consent

decrees" to be the only forms of success conferring prevailing

party status, or whether these two forms are mere examples of the

types of relief that can confer such status. Compare Christina A.

v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003) (stating that

"Buckhannon . . . makes it clear that a party prevails only if it

receives either an enforceable judgment on the merits or a consent

decree."), with Pres. Coalition v. Fed. Transit Admin., 356 F.3d

444, 452 (2d Cir. 2004) (holding that "Buckhannon does not limit

fee awards to enforceable judgments on the merits or to consent

decrees"); see also T.D. v. La Grange Sch. Dist. No. 102, 349 F.3d

469, 479-80 (7th Cir. 2003) (implicitly holding that "prevailing

party" status under Buckhannon is not limited to judgments on the

merits and consent decrees in finding a party was "prevailing"

after it obtained a court-ordered case-study evaluation under the

IDEA despite ultimately resolving the case by private settlement);

Smyth v. Rivero, 282 F.3d 268, 281 (4th Cir. 2002) (implicitly

holding that fee awards are not limited to enforceable judgments on
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the merits and to consent decrees in finding that "an order

containing an agreement reached by the parties may be functionally

a consent decree for purposes of [Buckhannon], even if not entitled

as such").

In this circuit, we have not squarely addressed whether

judgments on the merits or consent decrees are the only forms of

relief sufficient to confer prevailing party status, whether a

functional equivalent of such relief may be adequate, or whether

any other types of relief could satisfy Buckhannon's requirements.

In a case decided after Buckhannon, but expressly not deciding

whether Buckhannon applied to the fee-shifting provisions of the

IDEA, we awarded fees to a party who had successfully fended-off a

motion for a temporary restraining order, noting that "the denial

of the School District's motion [for a TRO] was effectively a final

judgment on the merits on [one of the School District's claims]."

Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 16-17

n.6 (1st Cir. 2003). Subsequently, in Doe, in holding that

Buckhannon indeed did apply to the fee-shifting provisions of the

IDEA, and thus barred recovery for fees following a purely private

settlement, we took "no position on whether forms of judicial

imprimatur other than a judgment on the merits or a court-ordered

consent decree may suffice to ground an award of attorneys' fees."

Doe, 358 F.3d at 24 n.4. 
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Here, Chelsea's Parents did not obtain a final judgment

on the merits, and their private settlement was not incorporated

into a consent decree. Thus, Chelsea's Parents do not satisfy the

requirements of a narrow reading of Buckhannon. See Christina A.,

315 F.3d at 993 (holding that a party need obtain either a consent

decree or a final judgment on the merits to be deemed a "prevailing

party" under Buckhannon). Furthermore, we need not decide today

whether a party could prevail under Buckhannon in the absence of a

consent decree or a final judgment on the merits, because, as we

will discuss below, neither the interlocutory orders and rulings,

nor the final order dismissing the case provide the necessary

judicial imprimatur on the change in the legal relationship between

the parties. See Buckhannon, 532 U.S. 604-05. Lastly, we need not

rule out the possibility that an egregious case of foot-dragging

terminated by a judicial or quasi-judicial procedural order may be

sufficient to confer prevailing party status under Buckhannon,

because the record does not reveal that Fitchburg was being

willfully obstructionist.

In one line of cases applying an expansive reading of

Buckhannon, courts have held that "[w]here a settlement agreement

is embodied in a court order such that the obligation to comply

with its terms is court-ordered, the court's approval and the

attendant judicial over-sight (in the form of continuing

jurisdiction to enforce the agreement) may be equally apparent,"
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such that an order containing the agreement "may be functionally a

consent decree for purposes of [Buckhannon], even if not entitled

as such." Smyth, 282 F.3d at 281; see T.D., 349 F.3d at 478 ("We

agree with the Fourth Circuit's recent conclusion [in Smyth] that

some settlement agreements, even though not explicitly labeled as

a 'consent decree' may confer 'prevailing party' status, if they

are sufficiently analogous to a consent decree."); John T. v. Del.

County Intermediate Unit, 318 F.3d 545, 558 (3d Cir. 2003) (stating

that "a stipulated settlement could confer prevailing party status

. . . . where it (1) contained mandatory language, (2) was entitled

'Order,' (3) bore the signature of the District Court judge, not

the parties' counsel, and (4) provided for judicial enforcement")

(emphasis and citation omitted); see also Smyth, 282 F.3d at 281

("We doubt that the Supreme Court's guidance in Buckhannon was

intended to be interpreted so restrictively as to require that the

words 'consent decree' be used explicitly."). For an order to be

considered the functional equivalent of a consent decree, however,

"[t]he obligation to comply with a settlement's terms must be

expressly made part of a court's order for jurisdiction to enforce

the settlement after dismissal of the action to exist." Smyth, 282

F.3d at 283; see Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 381 (1994) ("The judge's mere awareness and approval of

the terms of the settlement agreement do not suffice to make them

a part of his order."). Thus, "[e]ither incorporation of the terms
10We note that neither party included a copy of the order of

dismissal by the BSEA in the record before the district court.

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of the agreement or a separate provision retaining jurisdiction

over the agreement will suffice for this purpose." Smyth, 282 F.3d

at 283. In contrast, "[w]here a court merely recognizes the fact

of the parties' agreement and dismisses the case because there is

no longer a dispute before it, the terms of the agreement are not

made part of the order and consequently will not serve as a basis

of jurisdiction." Id.

Here, Chelsea does not argue that the order dismissing

her case is the functional equivalent of a consent decree, and thus

we deem that argument waived. See, e.g., Smilow v. Southwestern

Bell Mobile Sys., Inc., 323 F.3d 32, 43 (1st Cir. 2003) ("Issues

raised on appeal in a perfunctory manner (or not at all) are

waived.").10

A second line of cases espousing an expansive reading of

Buckhannon has developed, holding that the relief obtained by one

party satisfied the requirements of Buckhannon, even though the

party "prevailing" on that one issue ultimately lost in the final

judgment or entered into a private settlement agreement for the

remaining claims. Essential to each of these cases is the judge's

substantive involvement providing the necessary judicial imprimatur

on the change in the legal relationship between the parties.
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In T.D. v. La Grange School District Number 102, 349 F.3d

at 480, the Seventh Circuit held that even though the parties

ultimately entered into a private settlement (that was not embodied

in a court order), the parents were "prevailing" in an

administrative hearing for purposes of Buckhannon when they

successfully convinced the hearing officer to order the school

district to conduct a case-study evaluation to determine their

child's eligibility for benefits under the IDEA. The Seventh

Circuit, reversing in part the decision of the district court, held

that the parents were eligible for an award of attorneys' fees for

"prevailing" in the administrative hearing, but not for the time

spent in negotiations for the final settlement. Id. The Seventh

Circuit stated that the determination that the child was eligible

for IDEA benefits as a result of the court-ordered case-study

evaluation "represented some success for T.D. because prior to his

request for the due process hearing the school had not acknowledged

that T.D. was even eligible for IDEA benefits." Id. Thus, a

material alteration in the legal relationship between the parties

(that is, the school district's determination that T.D. was

eligible for special education services), was effected by the

hearing officer's order (after a review of the merits that the

school district was legally required to conduct a case-study

evaluation), which provided the necessary judicial imprimatur on

T.D.'s relief. See id.
11Preservation Coalition involved the fee-shifting provision

of the National Environmental Policy Act, which allows fee awards

to a party who "substantially prevails" in an action to enforce its

provisions. The Second Circuit has held that "the terms

'prevailing party' and 'substantially prevails' are fundamentally

the same for purposes of determining whether a plaintiff can

recover under a fee-shifting statute," and thus Buckhannon applies.

Pres. Coalition, 356 F.3d at 450 n.3.

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Similarly, the Second Circuit in Preservation Coalition

of Erie County v. Federal Transit Administration, 356 F.3d at 452,

held that a party was "prevailing" under Buckhannon when it

successfully convinced the district court to order the defendants

to prepare a new Supplemental Environmental Impact Statement (SEIS)

under threat of injunctive relief, even though the case was

ultimately resolved by a settlement agreement embodied in a

Stipulation and Order.11 After determining that the Stipulation and

Order was "functionally a private settlement agreement," the court

concluded that "appellee obtained prevailing party status under

Buckhannon when it obtained a court order requiring appellants to

prepare a SEIS under threat of further injunctive relief." Id. at

451, 452. This was because "[t]he SEIS was both judicially

sanctioned and effectuated a substantive, material alteration in

the legal relationship of the parties." Id. at 452 (emphasis in

original). And, as the Second Circuit noted, "[a]lthough the

district court declined to issue an injunction, it found the [Final

Environmental Impact Statement] inadequate" and ordered the

defendants to prepare a [Supplemental Environmental Impact
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Statement]." Id. at 448. Thus, the judge's substantive order

effected a material alteration in the legal relationship between

the parties.

In Maine School Administrative District Number 35,

although not directly applying Buckhannon, we followed similar

reasoning in holding that parents who successfully defended against

a school district's attempt to change their child's placement were

prevailing parties and thus entitled to attorneys' fees under the

IDEA. See 321 F.3d at 17. We noted that "[b]ecause the district

court denied injunctive relief on the basis that the School

District had not adduced sufficient proof to satisfy the [standard

for changing the student's placement], it [was] readily evident

that the appellants successfully defended [the original suit

brought against the parents to keep their child out of the school

because the school district thought the child was dangerous] on the

merits." Id. Thus, the district judge's substantive ruling was

the cause of a material alteration in the legal relationship

between the parties.

D. Applying Buckhannon to Chelsea's Case

We begin our application of the law to the facts of

Chelsea's case with the obvious--the relief obtained by Chelsea at

the administrative level was not in the form of a consent decree or

a final judgment on the merits, and thus does not warrant

attorneys' fees under a narrow reading of Buckhannon. See
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Christina A., 315 F.3d at 993 (holding that a party need obtain

either a consent decree or a final judgment on the merits to be

deemed a "prevailing party" under Buckhannon). Chelsea wisely does

not argue as such. But, our inquiry does not end there. As we

have not decided in this circuit whether to adopt a narrow or broad

reading of Buckhannon, we do not foreclose the possibility of a

broad reading, and look to determine whether Chelsea's relief, even

though not in the form of a consent decree or a final judgment on

the merits, comports with the overarching requirements of

Buckhannon; that is, whether the involvement of the BSEA Hearing

Officer provided the necessary judicial imprimatur on a material

alteration of the legal relationship between the parties. See

Buckhannon, 532 U.S. at 604-05. We thus first identify the change

in the legal relationship between Chelsea and Fitchburg, and then

ask whether that change was effected by the judicial actions of the

BSEA Hearing Officer.

1. The Change in the Legal Relationship

As a result of her initiation of proceedings against

Fitchburg, Chelsea did receive all of the relief she requested. In

Chelsea's complaint, she initially sought an order requiring

Fitchburg to: (1) pay for Chelsea's tutoring at home and in the

hospital; (2) convene an IEP meeting to address Chelsea's special

education needs; and (3) implement the IEP. By the time the case

was dismissed by the BSEA Hearing Officer, Fitchburg agreed to do
12Chelsea does not seriously contend that there was judicial

imprimatur on Fitchburg's decision to reimburse her parents for

prior tutoring at home and in the hospital, part of the relief she

received as a result of the settlement agreement. Thus, we

appropriately limit our discussion to whether there was judicial

imprimatur on Fitchburg's convening of the IEP meeting. 

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everything requested. Thus, there was a material alteration in the

legal relationship between Chelsea and Fitchburg. Under

Buckhannon, however, that is not enough to justify an award of

attorneys' fees; there must be judicial imprimatur on that change.

See 532 U.S. 604-05.

2. The Involvement of the BSEA Hearing Officer

The judicial involvement in this case came in the form of

a series of orders and rulings by the BSEA Hearing Officer that

memorialized the voluntary concessions made by Fitchburg and

attempted to keep the settlement process moving forward in a timely

manner.12 At the time the orders were imposed, the BSEA Hearing

Officer had not yet joined issue on the question of Chelsea's

substantive entitlement to an IEP because the BSEA Hearing Officer

had not yet convened a due process hearing. The issue before the

BSEA Hearing Officer at the time of her orders and rulings was

simply whether she should continue to promote settlement efforts

or, instead, take immediate action on the parents' request for a

due process hearing under 20 U.S.C. § 1415(f). Thus, it appears

from the record that the BSEA Hearing Officer's orders and rulings

were issued to justify the BSEA Hearing Officer's implicit decision
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to delay the due process hearing in favor of private settlement,

not to place the weight of judicial authority behind Fitchburg's

substantive concession that Chelsea was entitled to an IEP.

To be sure, standing alone, the BSEA Hearing Officer's

December 20, 2001 ruling requiring Fitchburg to convene a IEP

meeting "in no event . . . later than January 11, 2002" might be

viewed as an order, similar to the order in T.D., 349 F.3d at 480,

compelling Fitchburg to convene an IEP meeting because the Hearing

Officer determined Fitchburg was legally required to do so under

the IDEA. A closer look at the record, however, reveals that this

was merely a ruling memorializing a substantive concession by

Fitchburg and an effort to keep pre-hearing settlement negotiations

moving forward. Without being compelled to do so by the BSEA

Hearing Officer, Fitchburg had orally (and voluntarily) agreed to

convene an IEP meeting on December 12, 2001 during the December 4,

2001 BSEA Hearing Officer-initiated conference call. When

Fitchburg failed to convene the meeting on December 12, Chelsea

filed a motion requesting that the BSEA Hearing Officer order

Fitchburg to convene the meeting. Significantly, Fitchburg did not

oppose the motion. Thus, when the BSEA Hearing Officer issued its

ruling stating that "Fitchburg will use its best efforts to convene

the TEAM on January 4, 2002 but in no event . . . any later than

January 11, 2002," the officer was mandating that Fitchburg convene

a TEAM meeting by a specified date. The BSEA Hearing Officer never
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reviewed the merits of whether Fitchburg was required under the

IDEA to convene the IEP meeting; the Hearing Officer only was

requiring Fitchburg to follow through with what Fitchburg had

already voluntarily promised to do. 

Lastly, we note that in this case, the BSEA Hearing

Officer can be described as being simply efficient and businesslike, forcing Fitchburg to move more rapidly. It is not clear from

the record that Fitchburg was being willfully obstructionist. And,

at no point did Fitchburg refuse to comply with an order of the

BSEA Hearing Officer, nor was the Hearing Officer ever compelled to

make good on her threats of sanctions against Fitchburg. Thus, we

need not today foreclose the possibility that such judicial

intervention in a clearer, or more extreme, case might justify an

award of attorneys' fees under Buckhannon.

III. CONCLUSION

The pre-hearing orders that hastened the final resolution

of Chelsea's claim by private settlement did not provide sufficient

judicial imprimatur on Chelsea's relief to make her a "prevailing

party" under Buckhannon. The district court was correct to deny

Chelsea attorneys' fees under 20 U.S.C. § 1415(i)(3)(B), and, as

the prevailing party standard announced in Buckhannon also applies

to an award of fees pursuant to 20 U.S.C. § 1415(i)(3)(D)(ii),

Chelsea's claim under that subparagraph fails as well. The
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district court's orders, granting summary judgment to Fitchburg and

denying Chelsea's motion for summary judgment, are AFFIRMED.