2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-12-2008

Pardini v. Alghny Intermediate

Precedential or Non-Precedential: Precedential

Docket No. 07-1403

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1403

 

 

DAVID AND JENNIFER PARDINI,

on behalf of themselves and on behalf

of their minor child, GEORGIA PARDINI,

Appellants

v.

ALLEGHENY INTERMEDIATE UNIT;

BARBARA MINZENBERG, Program Director

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 03-00725)

Honorable Thomas M. Hardiman, District Judge

 

Argued March 6, 2008

 

BEFORE: FISHER, GREENBERG, and ROTH, Circuit Judges

(Filed: May 12, 2008)

 

David D. Pardini (argued)

3256 Waltham Ave.

Pittsburgh, PA 15216

 Attorney for Appellants
2

William C. Andrews

Christina Lane (argued)

Andrews & Price

1500 Ardmore Blvd.

Suite 506

Pittsburgh, PA 15221

 Attorneys for Appellee

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

I. FACTS AND PROCEDURAL HISTORY

This matter comes on before this court on appeal from an

order entered in the District Court on January 12, 2007, denying

plaintiffs David Pardini and his wife Jennifer Pardinis’ motion

seeking attorney’s fees in a lawsuit which they filed on behalf of

themselves and their daughter Georgia Pardini pursuant to the

Individuals with Disabilities in Education Act, 20 U.S.C. § 1400

et seq. (“IDEA”). Specifically, the Pardinis seek attorney’s fees

for David Pardini, an attorney who has represented his family in

its dispute with defendants, Allegheny Intermediate Unit

(“AIU”) and Barbara Minzenberg, its program director,

concerning services defendants were required to provide to

Georgia Pardini pursuant to the IDEA. For the reasons that we

will discuss, we will affirm the District Court’s order denying

the Pardinis’ motion for attorney’s fees.

Inasmuch as we described the factual background of this

case in our earlier opinion in this litigation, Pardini v. Allegheny

Intermediate Unit, 420 F.3d 181 (3d Cir. 2005), we will set forth

only the facts necessary for disposition of the present appeal. 

Georgia Pardini, who was born on April 18, 2000, suffers from

cerebral palsy. After her first birthday, the Alliance for Infants

and Toddlers (“AIT”) began supplying Georgia with services
3

pursuant to an Individualized Family Service Plan (“IFSP”), in

accordance with the requirements of the IDEA. The IDEA

further requires that a child receiving services pursuant to an

IFSP transition to an Individualized Education Program (“IEP”)

when she reaches the age of three. To prepare for the transition,

the AIU evaluated Georgia to determine what services it should

include in the new IEP. After it conducted its evaluation, the

AIU provided an IEP for Georgia’s parents to review and sign.

David and Jennifer Pardini refused to sign the IEP,

however, because it did not include what is known as conductive

education for Georgia, a service she had been receiving pursuant

to her IFSP. The AIU, in turn, refused to change the IEP to

include conductive education for Georgia. The Pardinis and the

AIU continued to disagree, and, as a consequence, the AIU

terminated all of Georgia’s services four days after her third

birthday. The Pardinis responded to the AIU’s termination of

services with a letter demanding that it reinstate the services

pursuant to the “stay-put” requirement of 20 U.S.C. § 1415(j).

As the parties sought to resolve their dispute through an

administrative due process hearing, on May 21, 2003, the

Pardinis filed this action in the District Court seeking an order

requiring the AIU to continue providing interim services to

Georgia. On May 30, 2003, the District Court denied the

Pardinis’ motion for a preliminary injunction, and on August 29,

2003, the District Court denied the Pardinis’ claim for a

permanent injunction against the AIU. Pardini v. Allegheny

Intermediate Unit, 280 F. Supp. 2d 447 (W.D. Pa. 2003). The

Pardinis then appealed.

On August 29, 2005, we reversed the District Court’s

denial of the Pardinis’ claim and remanded the case “for the

court to determine the amount of reimbursement the Pardinis are

entitled to as well as the amount of any attorneys fees.” Pardini,

420 F.3d at 192. The AIU filed a petition for rehearing but on

October 5, 2005, we denied the petition. On October 13, 2005,

we entered a judgment in lieu of a formal mandate vacating the

District Court’s denial of the Pardinis’ claim and “remand[ing]

[the matter] to the District Court for proceedings consistent with
4

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

The Pardinis subsequently filed a motion in the District

Court seeking attorney’s fees. On August 18, 2006, the

magistrate judge issued a memorandum recommending denial of

the motion. Pardini v. Allegheny Intermediate Unit, Civ. No.

03-725, 2006 WL 3940563 (W.D. Pa. Aug. 18, 2006). The

Pardinis filed objections with the District Court, but on January

12, 2007, the District Court rejected the Pardinis’ objections and

adopted the magistrate judge’s findings and conclusions denying

their motion for attorney’s fees. Pardini v. Allegheny

Intermediate Unit, Civ. No. 03-725, 2007 WL 128875 (W.D. Pa.

Jan. 12, 2007). The Pardinis now appeal.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction over this case pursuant

to 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. § 1331. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We

review the District Court’s denial of attorney’s fees for an abuse

of discretion. See P.N. v. Clementon Bd. of Educ., 442 F.3d

848, 852 (3d Cir. 2006). There is “[a]n abuse of discretion . . .

when a district court’s decision rests upon a clearly erroneous

finding of fact, an errant conclusion of law or an improper

application of law to fact.” Id. (internal quotation marks

omitted). “However, if the District Court denied the fees based

on its conclusion on questions of law, our review is plenary.” Id.

III. DISCUSSION

The Pardinis seek attorney’s fees pursuant to the IDEA,

which provides that “[i]n any action or proceeding brought under

this section, the court, in its discretion, may award reasonable

attorneys’ fees as part of the costs to a prevailing party who is

the parent of a child with a disability.” 20 U.S.C.

§ 1415(i)(3)(B).
5

In Woodside v. School District of Philadelphia Board of

Education, 248 F.3d 129 (3d Cir. 2001), we addressed almost the

same question that we now address, i.e., “whether [20 U.S.C. §

1415(i)(3)(B)] authorizes an award of attorney fees to an

attorney-parent who represented his child in administrative

proceedings under the IDEA.” Woodside, 248 F.3d at 130. The

only difference between this case and Woodside is that in this

case the application for attorney’s fees is for the attorneyparent’s representation of his child in both administrative and

federal court proceedings. The plaintiff in Woodside, a licensed

Pennsylvania attorney, was the father of a child who had a

condition called Klinefelter Syndrome. Id. The plaintiff

requested an administrative due process hearing to determine

whether the school district in which his son was enrolled was

providing adequate services for the child’s disabilities as

required by the IDEA. Id. The plaintiff represented his son

during the hearing, which lasted seven sessions over a period of

three months. Id. After the hearing, the school district was

ordered to provide the relief which the plaintiff sought. Id. The

plaintiff then filed suit in the district court pursuant to the IDEA

against the school district for attorney’s fees that he claimed to

have earned in representing his son in proceedings under the

IDEA. Id. 

On appeal, we addressed whether the IDEA’s provision

for attorney’s fees applied to attorney-parents representing their

children in administrative proceedings brought pursuant to the

statute. Id. In doing so, we discussed the Court of Appeals for

the Fourth Circuit’s opinion in Doe v. Board of Education of

Baltimore County, 165 F.3d 260 (4th Cir. 1998), and the

Supreme Court’s opinion in Kay v. Ehrler, 499 U.S. 432, 111

S.Ct. 1435 (1991). The court of appeals in Doe denied

attorney’s fees to attorney-parents in IDEA cases, reasoning that

“‘fee-shifting statutes are meant to encourage the effective

prosecution of meritorious claims,’” “‘they seek to achieve this

purpose by encouraging parties to obtain independent

representation,’” and “‘[l]ike attorneys appearing pro se,

attorney-parents are generally incapable of exercising sufficient

independent judgment on behalf of their children to ensure that

reason, rather than emotion will dictate the conduct of the
6

litigation.’” Woodside, 248 F.3d at 131 (quoting Doe, 165 F.3d

at 263 (internal quotation marks omitted)). We also noted the

Supreme Court’s statement in Kay that “‘[t]he statutory policy of

furthering the successful prosecution of meritorious [civil rights]

claims is better served by a rule that creates an incentive to retain

[independent] counsel,’ rather than a rule that creates an

incentive to represent one’s self.” Id. (quoting Kay, 499 U.S. at

438, 111 S.Ct. at 1438). Following the reasoning in both Doe

and Kay, we concluded in Woodside that “an attorney-parent

cannot receive attorney fees for work representing his minor

child in proceedings under the IDEA.” Id. 

Notwithstanding Woodside the Pardinis offer three

arguments in support of their argument seeking reversal of the

District Court’s denial of attorney’s fees. First, they argue that

in our earlier decision remanding this case to the District Court,

we instructed the court to “determine the amount of

reimbursement the Pardinis are entitled to as well as the amount

of any attorneys fees,” Pardini, 420 F.3d at 192, and that our

instruction constitutes a decision by this Court that they are

entitled to attorney’s fees. Second, they argue that Woodside

should be distinguished from the present case because the

attorney-parent in Woodside sought attorney’s fees only for

work performed during administrative proceedings whereas the

Pardinis seek fees for work performed during both

administrative proceedings and in this federal court case. Third,

they argue that inasmuch as our earlier decision in this case

conflicts with Woodside, we should follow our earlier Pardini

decision as the governing precedent rather than Woodside. In

addition to their arguments with respect to attorney’s fees, the

Pardinis argue that the District Court erred in not allowing them

to recover costs that they paid for services for Georgia Pardini

other than the costs for conductive education. For reasons that

we will explain, we find none of these arguments to be

persuasive.

A. Whether Our Earlier Decision in This Case

Decided the Issue of Whether the Pardinis Are

Entitled to Attorney’s Fees
7

The most difficult issue on this appeal concerns the

application of our disposition of the Pardinis’ first appeal and

thus we begin our discussion of the merits of this appeal by

addressing the scope of our decision remanding this case to the

District Court. “It is axiomatic that on remand for further

proceedings after decision by an appellate court, the trial court

must proceed in accordance with the mandate and the law of the

case as established on appeal.” Bankers Trust Co. v. Bethlehem

Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985). “A trial court

must implement both the letter and the spirit of the mandate,

taking into account the appellate court’s opinion and the

circumstances it embraces.” Id. “The mandate and the opinion

must be considered together in their entirety with particular

reference to the issues considered.” Id. at 950. “From the

proposition that a trial court must adhere to the decision and

mandate of an appellate court there follows the long-settled

corollary that upon remand, it may consider, as a matter of first

impression, those issues not expressly or implicitly disposed of

by the appellate decision.” Id. 

Application of the rules usually governing remands might

pose a problem if our first Pardini opinion was inconsistent with

Woodside but we are satisfied that Woodside and our mandate

on the first Pardini appeal are not inconsistent. We have reached

this conclusion because taken together, our instructions to the

District Court and the circumstances of our decision did not

require that the District Court grant the Pardinis attorney’s fees

but rather required that it address and decide the issue of whether

the fees should be allowed. The District Court’s August 29,

2003 decision – which we reviewed and ultimately reversed –

did not decide whether the Pardinis were entitled to attorney’s

fees because the District Court’s denial of their claim had

rendered that issue moot. Accordingly, not until we reversed the

District Court and remanded the case to that court was it

confronted with the issue of whether to allow attorney’s fees,

and thus it is only on the present appeal that we have been

constrained to consider whether they be awarded. 

Although the Pardinis are correct that in our earlier

decision we discussed the issue of attorney’s fees, our discussion
8

was preliminary, leaving much for the District Court to address. 

Indeed, the discussion appears exclusively in footnote 4, which

in full states:

At oral argument, the parties informed the court

that the Pardinis eventually agreed to an IEP

that did not include conductive education. 

However, since we conclude that Georgia was

entitled to receive conductive education as a

part of Georgia’s IEP until the dispute was

resolved, they are entitled to reimbursement of

the out-of-pocket expense resulting from the

AIU’s failure to comply with 20 U.S.C. §

1415(j) as well as reasonable attorneys’ fees. 

We do not think that Mr. Pardini is precluded

from recovering reasonable attorneys’ fees

otherwise provided for under the IDEA merely

because he is seeking reimbursement for his

own expenses while representing his daughter. 

In Zucker v. Westinghouse, 374 F.3d 221, 227

(3d Cir. 2004) we recognized that, absent an

expression of congressional intent to the

contrary, a plaintiff’s entitlement to attorneys’

fees is not eliminated merely because he/she

was pro se counsel. Although we were there

discussing the right of a pro se plaintiff in a

shareholder’s derivative action, that conclusion

is not limited to that specific type of action. 

Since Mr. Pardini requested ‘such other relief as

the Court deems fitting and proper,’ in his

complaint, he is entitled to recover reasonable

attorneys’ fees to the extent that he is the

prevailing party.

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

Although we understand why the Pardinis might construe

these statements as constituting a decision directing an award of

attorney’s fees, a close reading of it shows that the footnote
9

offers nothing more than preliminary observations. In footnote 4

we cited to Zucker v. Westinghouse Electric, 374 F.3d 221 (3d

Cir. 2004), for the proposition that we should look to the

relevant statute to determine whether a fee-shifting provision

extends to pro se attorneys. Our decision in Zucker, however,

shows that the inquiry did not end with that observation because

we ultimately denied attorney’s fees to the shareholder-objector

who sought fees in that case. Indeed, we reached that conclusion

only after discussing and adopting the Supreme Court’s

reasoning in Kay, a case which also guided our decision in

Woodside, and after describing Woodside approvingly. See id.

at 227-29.

Moreover, we specifically stated in footnote 4 in Pardini

that the Pardinis only would be entitled to attorney’s fees

“otherwise provided for under the IDEA.” Pardini, 420 F.3d at

183 n.4. We therefore did not determine whether the IDEA’s

fee-shifting provision allows the Pardinis to recover attorney’s

fees and instead left that matter for the District Court to decide

on remand. The District Court, in turn, correctly followed our

holding in Woodside, where we construed the same fee-shifting

provision in the IDEA involved here and concluded that it does

not provide for attorney’s fees in the case of attorney-parents

who represent their children in cases brought pursuant to the

IDEA. See Woodside, 248 F.3d at 130 (stating that “[t]he sole

issue here is whether [20 U.S.C. § 1415(i)(3)(B)] authorizes an

award of attorney fees to an attorney-parent who represented his

child in administrative proceedings under the IDEA”). 

Aside from footnote 4, the only mention of attorney’s fees

in our earlier Pardini decision appears in the conclusion, which

states: “We will therefore reverse the decision of the District

Court and remand for the court to determine . . . the amount of

any attorneys fees.” Pardini, 420 F.3d at 192. The inclusion of

the word “any” further supports the view that the grant of

attorney’s fees was a possibility rather a certainty. That

possibility at the very least was contingent on the District

Court’s determination of whether such fees are “provided for

under the IDEA,” id. at 183 n.4, an issue that we left to the

District Court to decide.
10

B. Whether Woodside Concerned Representation By

an Attorney-Parent in Administrative Proceedings

Only

We do not find persuasive the Pardinis’ argument that

Woodside does not govern this case because the attorney-parent

in that case provided representation only in administrative

proceedings whereas David Pardini represented the Pardinis in

both administrative proceedings and this federal court case. We

did not predicate our reasoning in Woodside leading us to

conclude that the IDEA did not allow the attorney-parent to

recover attorney’s fees in representing his minor child on that

distinction. Rather, we reached our conclusion based on our

observation that “attorney-parents are generally incapable of

exercising sufficient independent judgment on behalf of their

children to ensure that reason, rather than emotion will dictate

the conduct of the litigation,’” and that granting attorney’s fees

to them would frustrate the fee-shifting provision’s purpose of

“encourag[ing] the effective prosecution of meritorious claims.” 

Woodside, 248 F.3d at 131 (quoting Doe, 165 F.3d at 263

(internal quotation marks omitted)). The Pardinis fail to offer

any explanation for why our concerns in such cases do not apply

if there is litigation beyond administrative proceedings. We

therefore reject their argument in this respect.

C. Whether Woodside or Pardini Constitutes the

Governing Precedent With Respect to the Issue of

Whether an Attorney-Parent May Recover

Attorney’s Fees Pursuant to the IDEA

Finally, we reject the Pardinis’ argument that our first

decision in Pardini rather than our still earlier decision in

Woodside governs the question of whether an attorney-parent

asserting claims pursuant to the IDEA on behalf of his minor

child can recover attorney’s fees pursuant to the statute. It is

clear that even if our decision on the Pardinis’ first appeal

contravened Woodside by instructing the District Court to grant

attorney’s fees (which, as we have explained, it did not do), and

the District Court by reason of that opinion and the

accompanying judgment was required to award David Pardini
Judge Roth does not believe that the District Court on 1

remand would have been compelled to award the fees in view of

the fact that Woodside was binding on subsequent panels of this

Court and the District Court would have to take account of that fact

and rule in a manner that was consistent with Circuit precedent.

Moreover, if the case had returned to us on a subsequent appeal, we

would have had to overturn the District Court’s award of attorney’s

fees in view of the binding nature of the Woodside decision. Thus,

judicial economy would suggest that the District Court on remand

rule, as it did, consistently with Woodside.

11

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

Section 9.1 of the Internal Operating Procedures (“IOPs”)

of the Third Circuit Court of Appeals provides:

Policy of Avoiding Intra-circuit Conflict of

Precedent.

It is the tradition of this court that the holding of

a panel in a precedential opinion is binding on

subsequent panels. Thus, no subsequent panel

overrules the holding in a precedential opinion

of a previous panel. Court en banc

consideration is required to do so.

Third Circuit IOP 9.1. Accordingly, “[t]his Circuit has long held

that if its cases conflict, the earlier is the controlling authority

and the latter is ineffective as precedents.” United States v.

Rivera, 365 F.3d 213, 213 (3d Cir. 2004) (declining to use the

standard of review set forth in a case within the circuit because

that case “never acknowledged that the precedents [within the

circuit] used [a different standard of review]” and did not

“explain why [the Court] broke with those precedents”); see also

Holland v. N. J. Dep’t of Corrections, 246 F.3d 267, 278 (3d Cir.

2001) (“[T]o the extent that [a case within the circuit] is read to

be inconsistent with earlier case law, the earlier case law . . .

controls”); O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354

(3d Cir. 1981) (“[A] panel of this court cannot overrule a prior
Of course, the situation would be different if there was a 2

later statutory change in the controlling statutory law after our

earlier opinion or if the Supreme Court filed an opinion

inconsistent with our earlier opinion. 

12

panel precedent. To the extent that [the later case] is

inconsistent with [the earlier case, the later case] must be

deemed without effect.”) (internal citations omitted). 

Clearly our Internal Operating Procedures and precedents

provide for an approach which differs from that used in the

situation in which there are two irreconcilable statutes in which

circumstance the second will be deemed to impliedly repeal the

first. Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 1441

(2003). Therefore, inasmuch as our decision in Woodside

addressed the same issue which we now face in this case, we are

bound by the holding in Woodside regardless of any conflicting

language, if there is any, in a subsequent decision by another

panel of this Court. Inasmuch as a panel of this Court rather 2

than the Court en banc issued our earlier decision in Pardini, the

decision could not overturn our holding in Woodside, even if the

panel sought to do that. See Third Circuit IOP 9.1.

In reaching our result we have not overlooked the law of

the case doctrine which provides that “one panel of an appellate

court generally will not reconsider questions that another panel

has decided on a prior appeal in the same case.” In re City of

Phila. Litig., 158 F.3d 711, 717 (3d Cir. 1998). Rather, we

recognize that the doctrine does not apply in the extraordinary

circumstance when “the earlier decision was clearly erroneous

and would create manifest injustice.” Id. at 718. Certainly, in

view of Woodside if the panel in the original Pardini appeal had

intended to award attorney’s fees the decision would have been

clearly erroneous in light of IOP 9.1 and we would not be

required to follow it. In any event, there is at the very least

“substantial doubt” that the original Pardini panel decided the

attorney’s fees issue and thus we are not foreclosed from

deciding it. See United Artists Theatre Circuit, Inc. v. Twp. of

Warrington, 316 F.3d 392, 398 (3d Cir. 2003). (“Where there is
13

substantial doubt as to whether a prior panel actually decided an

issue, the later panel should not be foreclosed from considering

the issue.”).

D. Whether the Pardinis May Recover Costs for

Services Other Than Conductive Education

One final matter remains. The Pardinis argue that the

District Court erred in not allowing them to recover costs that

they paid for services for Georgia Pardini other than the costs for

conductive education. According to the Pardinis, our statement

in our earlier decision that “the Pardinis are entitled to the cost

of the conductive education that they purchased,” Pardini, 420

F.3d at 192, did not limit the recovery of costs to only those

incurred for conductive education, and they therefore are entitled

to recover the costs for other types of services as well.

The Pardinis, however, have not identified any part of the

record showing that they sought to recover costs for services

other than conductive education or that the District Court denied

any application for such costs. See appellants’ br. at 25-27. 

Indeed, there is nothing in either the magistrate judge’s

memorandum dated August 18, 2006, or the District Court’s

order dated January 12, 2007, concerning the recovery of costs

for services for Georgia other than those for conductive

education. We therefore find no basis for addressing whether

the Pardinis are entitled to recover costs for services for Georgia

other than the costs for conductive education.

IV. CONCLUSION

For the foregoing reasons, we conclude that the District

Court did not abuse its discretion in holding that the Pardinis are

not entitled to attorney’s fees. We therefore will affirm the

District Court’s order of January 12, 2007. No costs shall be

allowed on this appeal.