2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-24-2000

Holmes v. Millcreek Twp School

Precedential or Non-Precedential:

Docket 98-3428

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Recommended Citation

"Holmes v. Millcreek Twp School" (2000). 2000 Decisions. Paper 33.

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Filed February 24, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 98-3428/3482 

REBECCA H. HOLMES, a minor by parents and natural 

guardians ED HOLMES and DEBBY HOLMES, his wife; 

ED HOLMES; DEBBY HOLMES, in their own right 

v. 

MILLCREEK TOWNSHIP SCHOOL DISTRICT, 

 Appellant 

Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil Action No. 95-cv-00214E) 

District Judge: Honorable Maurice B. Cohill, Jr. 

Argued March 23, 1999 

Before GREENBERG and ROTH, Circuit Judge 

POLLAK,1 District Judge 

(Opinion filed February 24, 2000) 

Antoinette Szarek, Esquire (Argued) 

511 Orchard Way 

Lansdowne, PA 19050 

 Attorney for Appellees 

_________________________________________________________________ 

1. Honorable Louis H. Pollak, United States District Court Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
 Joanna K. Budde, Esquire (Argued) 

 Patricia K. Smith, Esquire 

 Knox, McLaughlin, Gornall 

 & Sennett 

 120 West 10th Street 

 Erie, PA 16501 

 Attorneys for Appellant 

OPINION OF THE COURT 

ROTH, Circuit Judge. 

Appellees Ed and Debbie Holmes brought an action 

under the Individuals with Disabilities Education Act 

("IDEA"), 20 U.S.C. SS 1400 et seq ., to recover attorney's 

fees and costs. These fees and costs were incurred by the 

Holmeses in challenging the re-evaluation of their daughter, 

Rebecca Holmes, which was to be done by the Millcreek 

Township School ("School District"), and in protesting the 

qualifications of a sign language interpreter whom the 

School District had assigned to work with their daughter. 

In addition, the Holmeses sued for reimbursement by the 

School District of the costs of the 1994 Independent 

Educational Evaluation ("IEE"), which the Holmeses had 

had performed on Rebecca. After a bench trial, the District 

Court held that the Holmeses were entitled to attorney's 

fees and certain costs associated with the 1994 IEE and 

with the Holmeses' challenge to the interpreter's 

qualifications. 

The School District appealed the award of fees and costs 

to the Holmeses. We will reverse the District Court's 

conclusion that the Holmeses were entitled to 

reimbursement for the 1994 IEE, but we will affirm their 

entitlement to an award of attorney's fees and costs. 

Because we find the amount of the award excessive, 

however, we will reduce it. 

I. Factual Background 

Rebecca H. Holmes is severely deaf. In the fall of 1992, as 

she entered the 5th grade, Rebecca transferred to the 

 2 
Millcreek School District and was assigned to the School 

District's Belle Valley Elementary School. 

Because of Rebecca's disability, School District officials 

made arrangements for her to undergo a comprehensive 

psycho-educational evaluation. The purpose of the 

evaluation was to assist the School District in creating a 

suitable Individualized Educational Plan ("IEP") for Rebecca, 

as required by IDEA.2 Personnel at the Center for Deafness 

at the Western Pennsylvania School for the Deaf (the 

"WPSD") performed an IEE, which was paid for by the

School District. The IEE was the basis for Rebecca's IEP for 

the 1992-93 school year. 

Rebecca's 1992-93 IEP included hearing impaired 

support, speech theory, and language therapy. In addition, 

Rebecca used a hearing aid and part-time interpreter 

services in the classroom. The interpreter, Kevin Feyas, was 

employed by the School District. In addition, on September 

1, 1992, Chris DiFilippo was hired by the School District as 

an interpreter for deaf students at Belle Valley. DiFilippo 

also worked with Rebecca during the 1992-93 school year. 

Rebecca continued with the same IEP during the 1993-94 

school year. During 1994, however, the School District 

would be obligated to do a multi-disciplinary re-evaluation 

of Rebecca. The re-evaluation would determine Rebecca's 

continued eligibility for special education services and 

recommend a plan for the 1994-95 school year. The 

Holmeses did not agree with the method of re-evaluation 

proposed by the School District because a sign language 

interpreter would be used. The Holmeses believed that 

Rebecca should be assessed only by people who could

communicate directly with her by sign language while she 

was being tested. 

On December 6, 1993, mid-way through Rebecca's 6th 

grade year, Mrs. Holmes asked the School District to have 

the WPSD conduct an IEE of Rebecca as part of the reevaluation. Mrs. Holmes asked the School District to pay 

for this second IEE. The School District refused to pay for 

additional assessments by the WPSD but proposed to 

_________________________________________________________________ 

2. See Part III.A. infra. 

 3 
perform its own re-evaluation. The School District informed 

the Holmeses that the School District could perform an 

appropriate re-evaluation with its own experts, who were 

familiar with Rebecca, her academic progress, and the 

School District's curriculum. 

After the School District refused their request to have the 

WPSD evaluate their daughter, the Holmeses made 

arrangements themselves for a WPSD evaluation of Rebecca 

on February 10, 1994. The resulting IEE consisted of two 

reports. The first, a two-page re-evaluation of Rebecca's 

sign language skills, was authored by Marlene SchecterConnors. The second, a ten-page "Interview Summary," was 

prepared by a psychologist, Dr. Paul Loera. Dr. Loera met 

with Rebecca and her parents and reviewed various 

materials produced in 1992 by the WPSD in connection 

with its first evaluation of Rebecca. 

On March 4, 1994, the School District filed a request for 

a due process hearing on the appropriateness of its

proposed re-evaluation of Rebecca. Prior to the hearing, the 

parties engaged in mediation but were unable to reach an 

agreement. The Holmeses then obtained a continuance of 

the hearing because they were involved in another due 

process proceeding concerning the education of their son, 

Matthew, who is also hearing-impaired. 

On April 4, during the period of the continuance, the 

School District asked the Holmeses for permission to reevaluate Rebecca. Mrs. Holmes requested that the School 

District not perform any testing, evaluating, or other 

procedures that would result in a written report that could 

be incorporated into Rebecca's multi-disciplinary team 

("MDT") report. Mrs. Holmes also informed the School 

District that she would require that WPSD-approved 

personnel be members of the MDT and that she had not yet 

received the reports of 1994 assessment which the 

Holmeses had had done by the WPSD. In addition, Mrs. 

Holmes advised the School District that she opposed the 

use of an interpreter in the re-evaluation. 

During April, May, and June, Dr. Richard Lansberry, a 

school psychologist, compiled Rebecca's Comprehensive 

Evaluation Report ("CER") for the MDT. The data in the 

 4 
CER included the WPSD 1992 IEE of Rebecca, evaluations 

from Rebecca's speech therapist, and a language evaluation 

of Rebecca by Kevin Feyas. Dr. Lansberry also informally 

interviewed Rebecca, with Kevin Feyas serving as 

interpreter. 

On April 28, Mrs. Holmes again requested a detailed

description of any testing of Rebecca by the School District. 

She also reminded the School District that she would not 

consent to any testing to re-evaluate Rebecca. A copy of the 

draft CER was sent to the Holmeses on July 7, 1994, nine 

days after the WPSD's 1994 IEE reports was transmitted to 

the School District. 

At the start of the 1994-95 school year, two MDT 

meetings were held, with the Holmeses present, to develop 

an IEP for Rebecca. The resulting four-page CER stated 

that Rebecca "will have access to a sign language 

interpreter throughout all of her school day" and access to 

structured study guides. In response to the CER, the 

Holmeses wrote a dissenting opinion in which they stated 

that they were dissatisfied with Dr. Lansberry's report. They 

contended that the CER contained errors of fact, excluded 

important information, and did not include information 

about their goal of exposing Rebecca to "the deaf 

community." 

The new plan, based on the CER, was implemented on 

September 14, 1994, and was valid through June 7, 1995. 

Despite their dissent to the CER, the Holmeses did not 

object to the implementation of this plan. 

In January 1995, the Holmeses requested due process

consideration of their request for reimbursement for the 

1994 IEE performed by the WSPD. The bill for the 1994 IEE 

was $400. The Holmeses presented this bill to the School 

District on May 16, 1995. In January 1995, the Holmeses 

had also raised concerns with the School District about the 

qualifications of Rebecca's interpreter, Chris DiFilippo. 

DiFilippo had become Rebecca's full-time interpreter in 

December 1994 after her prior interpreter, Tina Hammer, 

left. DiFilippo began working with Rebecca on a daily basis 

on January 3, 1995. On January 23, after Rebecca 

complained about DiFilippo, the Holmeses requested a due 

 5 
process hearing regarding his qualifications. Prior to the 

hearing, the School District provided the Holmeses with 

evaluations to demonstrate that DiFilippo was qualified. 

The Department of Education had advised the School 

District to contact Beverly Hollrah of Washington, D.C., to 

conduct an evaluation of DiFilippo's skills. Hollrah viewed 

a tape of DiFilippo interpreting for Rebecca in several 

classes. On February 16, 1995, Hollrah informed the

School District that DiFilippo had done "a very nice and 

satisfactory job of communicating the material presented in 

all classes videotaped." When later deposed, however, 

Hollrah stated that she did not know whether DiFilippo was 

qualified, that she had been unaware that a student had 

challenged his interpreting skills when she reviewed the 

tape, and that, had she been aware of the student's

complaint, she would have wanted to meet with the student 

and get further information before rendering an assessment 

of DiFilippo's skills. 

The due process hearing began on February 21, 1995.

The Holmeses had also requested leave to obtain an 

independent evaluation of DiFilippo's skills. In addition, 

they had asked to present evidence regarding the IEE 

reimbursement issue. Although the School District had not 

yet received a bill for the IEE, the Holmeses' counsel 

advised the School District of the approximate cost of the 

IEE. 

At the February 21 hearing, the Holmeses received 

Hollrah's report. At the same time, the Hearing Officer 

announced that Marilyn Mitchell of the National Technical 

Institute for the Deaf would evaluate DiFilippo's skills on 

behalf of the Holmeses. The Holmeses had chosen Mitchell 

to evaluate DiFilippo without input from the School

District, and the Holmeses paid for Mitchell's services. On 

March 21, Mitchell reported that in her opinion DiFilippo 

was not an adequate interpreter for Rebecca. 

On March 8, however, prior to Mitchell's report and

before anyone was familiar with its contents, DiFilippo 

requested to be relieved of the interpreter position and to be 

transferred to the position of "special education assistant." 

The request was made in part because DiFilippo did not 

want to undergo the stress and potential harassment of a 

 6 
hearing on his qualifications.3 On March 9, the School 

District notified the Holmeses that DiFilippo had applied for 

the new position, and, on March 20, the School District 

approved DiFilippo's transfer to the position of special 

education assistant. 

Despite DiFilippo's transfer to a new job, when the due 

process hearing was reconvened on March 21, the Hearing 

Officer concluded that the issue of DiFilippo's qualifications 

was not moot. The hearing officer came to this conclusion 

because he found that a decision on DiFilippo's 

qualifications would be helpful in resolving Rebecca's claim 

for compensatory education during the period in which 

DiFilippo had served as her interpreter. 

On April 6, the School District offered tutoring to

Rebecca. The tutoring was to consist of one hour for each 

of the forty seven days that DiFilippo had worked with 

Rebecca, although the School District informed the 

Holmeses that it "[did] not agree with the parents'

characterization that Mr. DiFilippo . . . [was] not qualified." 

The Holmeses rejected the offer, apparently because of 

Rebecca's schedule of extracurricular activities. The School 

District then asked what, other than the tutoring, could be 

provided to help Rebecca in her studies. The Holmeses 

requested study guides for math, a subject in which the 

School District had determined that Rebecca was weak, 

regardless of her disability. 

On June 1, 1995, after nine days of proceedings, the 

Hearing Officer decided that the parents were entitled to 

reimbursement for the 1994 IEE. Specifically, the Hearing 

Officer concluded that "it is clear that the private 

evaluations secured by the parents provided meaningful 

information which helped to determine the nature and 

extent of Rebecca's disability along with necessary

programming." The Hearing Officer did not, however,

_________________________________________________________________ 

3. DiFilippo already was familiar with such hearings because his brother 

Dean had served as an interpreter for Rebecca's brother. Dean DiFilippo 

had undergone a due process hearing, initiated by the Holmeses, over 

his qualifications. Chris DiFilippo had attended the hearing, witnessed 

the way in which the process had unfolded, and seen that the Holmeses 

had prevailed against his brother. 

 7 
determine whether it was appropriate to perform an 

evaluation of Rebecca with the assistance of a sign

language interpreter. The Hearing Officer concluded that it 

was "beyond the scope of this hearing to determine if 

Rebecca must be assessed only by people who can directly 

sign with her as she is being tested for an appropriate 

evaluation." 

The School District appealed. On July 28, 1995, the

Special Education Due Process Appeals Review Panel 

unanimously reversed the Hearing Officer's determination. 

The Panel concluded that the School District did not have 

to reimburse the Holmeses for the 1994 IEE because the 

Hearing Officer had committed legal error when he did not 

consider whether the School District could provide an 

"appropriate" re-evaluation. Instead, the Hearing Officer 

had focused on whether the School District had used

information derived from the evaluation done by the

Holmeses' experts.4 Quoting the opinion in Kozak v.

Hampton Township Sch. Dist., 655 A.2d 641, 647 (Pa.

Commw. 1995), the Panel stated "[a]ccording to the plain 

language of [Pennsylvania regulations], parents are entitled 

to reimbursement for a private evaluation only if . . . the 

private evaluation shows the school district's MDE to be 

inappropriate." The Panel further noted that the Holmeses' 

requirement, that the evaluator be fluent in sign language 

and that an interpreter not be employed, had not been 

adopted by either Pennsylvania or federal statutes or 

regulations. For that reason, the Holmeses were not

justified in demanding reimbursement for their IEE on the 

basis that the re-evaluation proposed by the School District 

was inappropriate. 

_________________________________________________________________ 

4. Both the Hearing Officer and the Review Panel concluded that the 

issue of whether DiFilippo was qualified had been settled; thus, neither 

one determined whether the interpreter was qualified. See app. at 1318 

("When Rebecca's hearing began a second issue regarding qualifications 

of her interpreter was introduced. . . The parties eventually reached an 

agreement on the issue of the interpreter and the sole remaining issue 

was concerned with the request for reimbursement for the independent 

evaluations."); App. at 1332, n. 21 ("Early in the course of the 

protracted 

proceedings, the added issue of the qualifications of Rebecca's 

interpreter, and the corollary questions of compensatory education 

services and substitute interpreter qualifications, were resolved."). 

 8 
Subsequently, the Holmeses sought payment of 

attorney's fees, incurred up to that time, in the amount of 

$53,445.74. The School District denied the Holmeses' claim 

on the ground that the parents had not been a prevailing 

party in the due process hearings. 

On August 14, 1995, the Holmeses filed suit in the 

United States District Court for the Western District of 

Pennsylvania. They requested attorney's fees and costs as 

the prevailing party within the meaning of 20 U.S.C. 

S 1415. The Holmeses claimed to be the prevailing party 

because 1) they were successful in demanding 

reimbursement for the IEE and 2) as a result of the due 

process hearings, the School District had reassigned 

DiFilippo, had assigned another interpreter to Rebecca, had 

offered compensatory education for the period that 

DiFilippo had been assigned, and had agreed not to use 

Chris or Dean DiFilippo as substitute interpreters.

After a 3-day trial, the District Court announced its 

opinion from the bench. The court found that the Holmeses 

were the prevailing party. It reversed the Appeals Review 

Panel's denial of reimbursement for the cost of the 1994 

IEE because portions of the IEE had been used by the 

School District to formulate Rebecca's CER. The court did 

not analyze whether the School District could itself have 

conducted, or did conduct, an appropriate re-evaluation. 

On August 27, 1998, the District Court issued an order 

awarding attorney's fees of $141,070.28 to the Holmeses. 

The School District appealed the award of attorney's fees 

and costs, as well as the award of costs associated with the 

1994 IEE. We have jurisdiction of this appeal pursuant to 

28 U.S.C. S 1291. 

II. Standard of Review 

The District Court's findings of facts are reviewed for 

clear error. Sheet Metal Workers Local 19 v. 2300 Group, 

Inc., 949 F.2d 1274, 1278 (3d Cir. 1991). We have plenary 

review over the District Court's choice, interpretation and 

application of the law to the facts. Epstein Family

Partnership v. Kmart Corp., 13 F. 3d 762, 765-66 (3d Cir. 

1994). Generally, we review a fee award for abuse of 

 9 
discretion. Kean v. Stone, 966 F.2d 119, 121 (3d Cir. 1992). 

Where, however, the question is whether the District Court 

applied the correct legal standard, our review is plenary. Id. 

III. Discussion 

A. Statutory Framework 

IDEA establishes minimum requirements for the 

education of children with disabilities.5 The statute requires 

states to provide such children with a "free[and] 

appropriate public education," which is based on the 

unique needs of each individual student.6 20 U.S.C. S 1412. 

School districts achieve this goal by developing a detailed 

instructional plan, or an IEP, for each child who is 

classified as disabled. 20 U.S.C. S 1401(a)(18). An IEP 

consists of a specific statement of a student's present 

abilities, goals for improvement of the student's abilities, 

services designed to meet those goals, and a timetable for 

reaching the goals by way of the services. Id . at 

S 1401(a)(20). The Congressional purpose in enacting IDEA 

was to provide "access to a `free appropriate public 

education' . . which . . . is . . sufficient to confer some 

educational benefit upon the handicapped child." Board of 

Education v. Rowley, 458 U.S. 176, 200 (1982). In this way, 

_________________________________________________________________ 

5. IDEA was enacted "to assure that all children with disabilities have 

available to them . . . a free appropriate public education which 

emphasizes special education and related services designed to meet their 

unique needs [and] to assure that the rights of children with disabilities 

and their parents or guardians are protected." 20 U.S.C. sec. 1400(c). 

6. A "free appropriate public education" is defined in 20 U.S.C. sec. 

401(a)(18) as special education and related services that-- 

 (A) have been provided at public expense, under pu blic supervision 

 and direction, and without charge, 

 (B) meet the standards of the State educational ag ency, 

 (C) include an appropriate preschool, elementary, or secondary 

 school education in the State involved, and 

 (D) are provided in conformity with the individual ized education 

 program required under section 1414(a)(5) of this title. 

See also 22 Pa. Code S 14.1 ("appropriate program"). 

 10 
the IEP provides a "basic floor of opportunity" but not 

necessarily "the optimal level of services . . .." Carlisle Area 

School v. Scott P. By and Through Bess P., 62 F.3d 520, 

533-34 (3d Cir. 1995). 

States that receive IDEA funding must create an 

administrative structure to develop IEPs. 20 U.S.C.

S 1414(a)(5). In addition, states must establish procedural 

safeguards for children with disabilities and for their 

parents; among the most important of these safeguards is 

allowing parents to dispute the appropriateness of their 

child's IEP through an impartial due process hearing. 20 

U.S.C. S 1415. 

Under Pennsylvania law, an IEP is defined as "[A] written 

plan for the appropriate education of an exceptional 

student." 22 Pa. Code S 14.31(b).7 The Commonwealth

requires an IEP to include: 1) a statement of the student's 

present levels of educational performance; 2) a statement of 

annual goals and short-term learning outcomes which are 

responsive to the learning needs identified in an evaluation 

report; and 3) a statement of the specific special education 

services and programs and related services to be provided 

to the disabled student. 22 Pa. Code S 14.32(f). Parents may 

request due process hearings about the appropriateness of 

the IEP pursuant to 22 Pa. Code S 14.64(a). 8 

B. Reimbursement for the IEE 

Pennsylvania regulations allow parents to be reimbursed 

for a private evaluation of a disabled student if that 

evaluation was sought as a result of the parent's 

_________________________________________________________________ 

7. Pennsylvania defines the term "exceptional children" as "children of 

school age who deviate from the average in physical, mental, emotional 

or social characteristics to such an extent that they require special 

educational facilities or services . . . ." Pa. Stat. Ann. Title 24, S 13- 

1371(1). 

8. 22 Pa. Code S 14.64(a) provides: 

 "Parents may request an impartial due process hearing concerning 

 the identification, evaluation or educational placement of . . . a 

child 

 who is eligible or who is thought to be eligible, if the parents 

 disagree with the school district's identification, evaluation or 

 placement of . . . the student . . . ." 

 11 
disagreement with the school's MDE, and if the evaluation 

then demonstrates that the school's MDE was in some way 

inappropriate. See Kozak, 655 A.2d at 647. 

The record here shows that the Holmeses sought the 

services of the WPSD only after informing the School 

District of their belief that it could not properly re-evaluate 

Rebecca. Thus, prior to obtaining an IEE, the Holmeses met 

their burden of stating their disagreement with the School 

District's process of evaluating their daughter. The crucial 

issue is, however, whether the Holmeses demonstrated that 

the School District's evaluation of their daughter was 

inappropriate. 

First, we note that the District Court did not directly 

address the issue. The court's only reference to whether the 

School District's evaluation was appropriate was oblique: 

"Rebecca got a full-time interpreter because of evaluation 

initiated by the parents, not the school district." Thus, 

rather than considering whether the School District's reevaluation was appropriate, the court focused on the 

School District's purported reliance on the WPSD report in 

formulating Rebecca's educational plan. 

This was error. The School District is required by federal 

and state law to consider all evaluations of disabled 

students. See 34 C.F.R. S 503(c) (stating that if the parents 

obtain an IEE at private expense, the results "[m]ust be 

considered by the public agency"); see also 22 Pa. Code 

S 14.67(c)("if parents obtain an IEE at private expense, the 

results . . . shall be considered by the district in decisions 

made with respect to the provision of a free appropriate 

public education to the student."). For that reason, the fact 

that the School District considered the WSPD's second 

evaluation of Rebecca does necessarily indicate that 

reimbursement is required. 

The Holmeses may be reimbursed for the WPSD IEE only 

by showing that the School District's 1994 re-evaluation 

would be inappropriate. Bernardsville Board of Education v. 

J.H., 42 F.3d 149,157 (3d Cir. 1994). The Holmeses have 

not shown this. Although the Holmeses contend that the 

School District's evaluation was inappropriate because of 

the lack of expertise of the individuals who conducted it, 

 12 
they base their position not on statutory or regulatory 

language but on expert opinions which do not have the 

force of law. 

The Holmeses argue that the Pennsylvania Department of 

Education's 1995 Guidelines on the "Education of Students 

with Hearing Loss" supports their position. The Holmeses 

are correct that these guidelines recommend the use of a 

psychologist fluent in sign language or in another form of 

communication preferred by the student, in evaluating 

hearing disabled students. ("The participation of the 

psychologist is necessary in any MDT. . .. It is critical that 

the psychologist be fluent in the communication mode and 

psychological/linguistic uniqueness of the student") (citing 

Pa. Dept. of Educ., Guidelines for the Education of Students 

with Hearing Loss (1995)). These guidelines do not,

however, establish law. As the Appeals Review Panel noted, 

these Guidelines suggest an optimum level of educational 

services and were made for purposes of advocacy. They 

were not binding on the School District at any time relevant 

to this suit.9 See App. at 1336 ("Even if there is only one 

school of thought in the modern literature of deaf education 

regarding [whether a non-fluent psychologist can 

appropriately evaluate deaf students] . . . there is currently 

a difference between the professional optimum and the 

legal minimum.") (citations omitted). Thus, the Board 

concluded, "contrary to the parents assertion, neither 

Pennsylvania or federal statutes and regulations have 

adopted [the Holmeses'] position."10 

The Holmeses go on to assert that the school 

psychologist, Dr. Lansberry, was not fluent in American 

_________________________________________________________________ 

9. As a way of emphasizing this point, we note that the Guidelines were 

still in advance copy form at the end of the school year 1994-1995, and 

that although the Guidelines were distributed to schools in August of 

1995, it is not clear when they were in the possession of the relevant 

officials at the Millcreek School District. See app. at 1613. 

10. In addition, a circular from the Pennsylvania Department of 

Education, dated March, 1992, recommended that when a student's 

disability involves hearing loss, the MDT should"include evaluators 

knowledgeable about deafness/hearing impairment." The department 

noted, however, that when such evaluators are not available, a "qualified 

interpreter must be utilized during evaluations and conferences." 

 13 
Sign Language ("ASL") and, thus, could not evaluate

Rebecca appropriately. They claim that Dr. Lansberry 

"admitted that he was not qualified to evaluate Rebecca's 

need for interpreting services." In addition, the Holmeses 

argue that Kevin Feyas, who served as Dr. Lansberry's 

interpreter, was not credentialed as either an interpreter or 

a psychologist and thus could not have contributed to an 

appropriate evaluation of Rebecca. 

It is not disputed that Dr. Lansberry is not fluent in ASL. 

We do not, however, accept the Holmeses' contention that 

Dr. Lansberry's lack of fluency in ASL signifies that the 

School District's MDE was inappropriate. First, the

Supreme Court has ruled that we must not substitute our 

judgment about proper education methods for that of state 

educational authorities. Rowley, 458 U.S. at 207. We must 

give "due weight" to the underlying state administrative 

proceedings. Id. at 206. In the instant action, the Appeals 

Review Panel concluded that Dr. Lansberry and others were 

able to evaluate Rebecca appropriately. We give due

deference to that finding. 

We also note that, although we must consider 

administrative fact findings, we have not interpreted Rowley 

as requiring us to accept such findings. See Carlisle Area 

School, 62 F.3d at 529. Here, however, we do notfind 

sufficient evidence in the record to persuade us that we 

should second-guess the findings of the Board and the 

opinion of the School District. We find no indication that 

Dr. Lansberry, with the aid of Kevin Feyas, rather than the 

hypothetical psychologist trained in ASL, could not

appropriately evaluate Rebecca. Dr. Lansberry testified 

that, with the help of translators, he had dealt with deaf 

children in the past. Although he believed that the MDT 

should include persons familiar with a deaf child's needs 

and persons who could communicate directly with the deaf 

child, he did not agree that he had to be fluent in sign 

language in order to appropriately assess Rebecca for 

purposes of creating an IEP. We conclude that Dr. 

Lansberry provided valuable information concerning 

Rebecca's need for increased interpreter services by 

assessing, inter alia, Rebecca's feelings about being hearing 

impaired, her desire for interpreter services, her academic 

abilities, and her academic progress. 

 14 
Moreover, the School District's determinations about 

Rebecca's educational needs for the 1994-95 school year 

were based on the work of the entire MDT, rather than on 

the expertise of any one member of the MDT, including Dr. 

Lansberry. While ASL-fluent psychologists may be 

preferred, the Holmeses' own experts acknowledged that, 

with the help of a translator, appropriate evaluations of 

deaf students can be achieved by professionals who are not 

fluent in ASL. In addition, we find persuasive the School 

District's argument that their staff in some ways was 

better-qualified than the WPSD's staff to evaluate Rebecca. 

For instance, the School District's staff were familiar with 

the curriculum at Belle Valley and with Rebecca and the 

progress she was making. 

Similarly, we find no support in the record for the

Holmeses' argument that Kevin Feyas' participation in the 

MDE implies that it was inappropriate. Whereas the 

Holmeses suggest that Feyas was a novice in teaching the 

deaf at the time that he served as Dr. Lansberry's 

interpreter, the record shows that Mr. Feyas had worked 

with Rebecca for over two years and was aware of her 

preferred method of communication. Moreover, Feyas was 

familiar with the Belle Valley curriculum and had been 

certified by the state as a teacher for the hearing impaired. 

While Feyas was not certified by the Registry of Interpreters 

for the Deaf, a national registry, he had a provisional 

certification from another national organization, the Council 

of Education for the Deaf. These facts do not support the 

Holmeses' contention that Feyas was unqualified to assist 

in evaluating Rebecca.11 

In sum, we hold that there has been no showing that the 

School District's MDE was inappropriate. Thus, we 

conclude that the District Court erred in finding that the 

_________________________________________________________________ 

11. Moreover, we note, as did the Appeals Review Panel, that the 

Holmeses' denial of consent to the School District for testing or any 

other 

formal interaction with Rebecca for purposes of re-evaluation "effectively 

limited the School District's performance of its obligation to conduct an 

appropriate evaluation." As a result of this denial of consent, Dr. 

Lansberry was limited to reviewing, inter alia , previous evaluations of 

and data about Rebecca, and informal meetings with Rebecca and her 

interpreter, Mr. Feyas. 

 15 
Holmeses were entitled to reimbursement for the IEE. As a 

matter of law, they were not. 

C. Attorney's Fees and Costs 

The District Court awarded attorney's fees and costs to 

the Holmeses because it found that they had prevailed in 

the due process hearing regarding the IEE and DiFilippo's 

qualifications. As to the latter, the Court found that the 

Holmeses had achieved three objectives: DiFilippo had been 

removed from his position as Rebecca's interpreter, another 

interpreter had been assigned, and Rebecca had received 

compensatory education for the period during which 

DiFilippo worked as her interpreter. The award of attorney's 

fees and costs was $141,070.28. 

The Education of the Handicapped Act's fee-shifting

provision states that, "[i]n any action or proceeding brought 

under this subsection, the court, in its discretion, may 

award reasonable attorneys' fees as part of the costs to the 

parents or guardian of a child or youth with a disability 

who is the prevailing party." 20 U.S.C. S 1415(e)(4)(B).12 

Thus, the language of the fee-shifting provision of the 

relevant statute is permissive, rather than mandatory. To 

qualify as a "prevailing party" within the meaning of the 

provision, a litigant must demonstrate that he obtained 

relief on a significant claim in the litigation, that such relief 

effected a material alteration in his legal relationship with 

the defendant and that the alteration is not merely

technical or de minimis in nature. See Texas State Teachers 

Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-93 

(1989); Hensley v. Eckerhart, 461 U.S. 424 (1983). Further, 

the litigant must show that there is a "causal connection 

between the litigation and the relief from the defendant." 

Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 

F.2d 897, 910 (3d Cir. 1985); see also Wheeler v. Towanda 

Area Sch. Dist., 950 F.2d 128, 131 (3d Cir. 1991). The 

pressure resulting from on-going litigation is sufficient to 

_________________________________________________________________ 

12. The standards governing the award of attorneys' fees under 42 U.S.C. 

S 1988 are applicable to awards sought under the IDEA. See, e.g., 

Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7 (1983); Jodlowski v. Valley 

View Community Unit Sch. Dist. No. 365-U, 109 F.3d 1250, 1253 n. 2 

(7th Cir. 1997). 

 16 
satisfy this standard. Baumgartner v. Harrisburg Hous. 

Auth., 21 F.3d 541, 545-50 (3d Cir. 1994) (affirming 

viability of "catalyst theory," by which plaintiffs are eligible 

for fees without obtaining a judgment or formal settlement, 

as long as they prove that the suit accomplished its 

objective); see also D.R. v. East Brunswick Bd. of Educ., 109 

F.3d 896, (3d Cir. 1997) (settlement agreement voluntarily 

and willingly entered into by school district and parents of 

handicapped child during IDEA mediation created binding 

contract between parties and was enforceable); cf. Farrar v. 

Hobby, 506 U.S. 103, 112 (1992) (holding that plaintiff who 

wins nominal damages is prevailing party under section 

1988, but finding attorney's fee award inappropriate).13 

The District Court concluded that the Holmeses were a 

prevailing party pursuant to the "catalyst theory" affirmed 

by our circuit in Baumgartner. That is, the court concluded 

that "but for the [due process] hearings,[Chris DiFilippo] 

would have stayed at his original position." Because of the 

facts that the Holmeses initiated the hearing process, that 

DiFilippo resigned, and that a new interpreter was 

assigned, the court found that the Holmeses had achieved 

their desired relief. 

In support of its argument that the attorney's fee award 

was in error, the School District cites cases holding that 

plaintiffs may only be considered a prevailing party if the 

defendant's change of conduct is required by a lawsuit or a 

"lengthy enforceable settlement agreement." E.g. Patricia E. 

v. Board of Education of Community High School Dist. No. 

155, 894 F. Supp. 1161 (N.D.Ill. 1995). The School District 

argues that the facts of this case are at odds with this 

standard. The School District also asserts that the"but for" 

analysis employed by the District Court does not comport 

with Baumgartner. The School District contends that the 

catalyst theory requires "legal change" favorable to the 

_________________________________________________________________ 

13. The Supreme Court recently in Friends of the Earth, Inc. v. Laidlaw 

Environmental Services (TOC), Inc., 120 S.Ct. 693, 711-12 (2000), noted 

the circuit split on the viability of the "catalyst theory" post-Farrar 

but 

declined to address the issue in the context of that case as being 

premature. The Court indicated that any request for costs, including 

attorney's fees, must be addressed in the first instance by the District 

Court. 

 17 
plaintiff " and that the "but for" analysis is not consistent 

with such affirmative change. Thus, the "but for analysis is 

not an adequate conception of cause" [for IDEA fee-shifting] 

. . . and the question of whether a party prevailed because 

of the legal proceeding rather than for some other reason is, 

at a minimum, a question about causality." See Board of 

Education of Downers Grade School Dist. No. 58 v. Steven 

L., 89 F.3d 464, 469 (7th Cir. 1996) (quoting Brown v. 

Griggsville Comm. Unit School Dist. No. 4, 12 F.3d 681, 684 

(7th Cir. 1993)). 

We agree that this is not a classic situation for 

application of the catalyst theory, B.K. v. Toms River Bd. of 

Educ., 998 F. Supp. 462 (D.N.J. 1998), because the record 

does not show definitively that the School District replaced 

DiFilippo in order to appease the Holmeses. Rather, the 

record shows that DiFilippo left the job of his own accord. 

Moreover, the record shows that, even when notifying the 

Holmeses that it would provide tutoring for Rebecca for the 

period that DiFilippo had served as her interpreter, the 

School District maintained its disagreement with the 

Holmeses' opinion about his qualifications. 

Nevertheless, the record also demonstrates that the

Holmeses' objective of no longer having DiFilippo serve as 

an interpreter for Rebecca was achieved as a direct result 

of the due process hearing that they initiated. It was 

because of the potential for stress and embarrassment that 

DiFilippo left the interpreter's job. Although DiFilippo's 

decision to leave the position as interpreter and take 

another (significantly lower-paying) job say seem to have 

been a personal one, it was causally influenced by the 

Holmeses' initiation of the hearing. This sequence of events 

satisfies the Baumgartner standard. See 21 F.3d at 547-48. 

That the School District offered tutoring to Rebecca for the 

period during which DiFilippo was her interpreter 

buttresses the inference that the Holmeses' challenge to 

DiFilippo's qualifications resulted in the requisite "legal 

change" needed to demonstrate success for purposes of an 

award of attorney's fees and costs. 

This case is distinguishable from Wheeler v. Towanda 

Area Sch. Dist., 950 F.2d 128 (3d Cir. 1991), a case upon 

which the School District relies in challenging the

 18 
attorney's fee award. In Wheeler, the parents of a disabled 

student challenged the qualifications of the interpreter 

assigned to work with their child. We affirmed the denial of 

an attorney's fee award to the parents who made that 

challenge. Id. at 132. We did so, however, because we 

concluded that the parents had not shown a causal 

connection under either of their theories between their 

lawsuit and the hiring of a new interpreter. Id. We noted 

that the school district had begun searching for a new 

interpreter months before the resolution of the 

administrative action initiated by the Wheelers, based, in 

part, on the fact that the interpreter had fallen ill. 

By contrast, our affirmance of the District Court's finding 

in this case is based on the fact that DiFilippo's departure 

from the position as Rebecca's interpreter was motivated by 

the Holmeses' actions, in particular, the stress and 

harassment that DiFilippo believed he might suffer as a 

result of the due process hearing. Having achieved their 

objective of having DiFilippo removed as Rebecca's 

interpreter, the Holmeses are entitled to an award of 

attorney's fees. See Texas State Teachers Ass'n , 489 U.S. at 

791-93. 

Nevertheless, we find that the amount of the award was 

excessive. First, the Holmeses are no longer the prevailing 

party on the issue of reimbursement for the 1994 IEE. In 

addition, we note that both the Hearing Officer and Appeals 

Review Panel felt that the Holmeses and their counsel had 

"contributed to" the needlessly "protracted proceedings." We 

also note that the Holmeses bear the burden of establishing 

the reasonableness of the requested fees and are required 

to submit evidence to support their claims for hours 

expended in performing specified tasks. See Rode v.

Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (quoting 

Hensley, 461 U.S. at 433; Washington, 89 F.3d at 1037. 

The accepted procedure for determining a reasonable fee 

award is to multiply reasonable hours expended on a

matter by a reasonable billing rate for the attorneys who 

performed the tasks involved. Washington, 89 F.3d at 1035. 

A reasonable hourly rate is calculated according to the 

prevailing market in the community. Id. An attorney's 

showing of reasonableness must rest on evidence other 

 19 
than the attorney's own affidavits. Blum v. Stenson, 465 

U.S. 886, 895-96 n. 11 (1984). Moreover, the court must be 

careful to exclude from counsel's fee request "hours that 

are excessive, redundant or otherwise unnecessary. .. ." 

Hensley, 461 U.S. at 434. 

Relying upon the cases that we have cited, supra , the 

School District argues that neither the requested hourly 

rate of the Holmeses' counsel, nor the hours expended in 

performing tasks for this litigation, is reasonable. The 

School District argues that counsel for the appellees failed 

to produce sufficient evidence that her rate request is 

commensurate with her skill, experience, and reputation in 

the community. She offers only her own affidavit in support 

of her rate and bases the rate on the prevailing hourly rate 

in Philadelphia or statewide. The School District is correct 

in contending that counsel's own affidavit may not be 

sufficient support for her hourly rate. Blum , 465 U.S. at 

895-96 n. 11. 

The School District also argues that the fee award 

contains repetitive and unnecessary billing by counsel for 

the appellees. The School District lists twenty-nine such 

instances of excessive billing, including: 111.5 hours for 

preparing an answer and brief in opposition to the School 

District's Exceptions to the Hearing Officer's decision; fortysix hours for preparing the complaint in this action; two 

and a half hours for preparing a self-executing disclosure; 

eighty-seven hours for the taking of and preparing for 

depositions regarding DiFilippo's qualifications; ten and 

one-half hours for preparing a pre-trial narrative statement; 

ninety-five and three-fourths hours for preparing, inter alia, 

motions in limine, motions for sanctions, and responses 

regarding DiFilippo's qualifications; twenty-five hours for 

taking the deposition of Marilyn Mitchell regarding

DiFilippo's qualifications; and thirty-seven and a half hours 

for drafting a response to allegedly inaccurate and

inadmissable statements in the School District's proposed 

findings of fact and conclusions of law. 

Counsel for the appellee contends that the award is not 

excessive, based on the degree of success she achieved in 

this litigation, the four-plus years spent in litigation over 

the issues involved in this action, the "risk of nonpayment" 

 20 
assumed "when she undertakes to represent parents of deaf 

and hard of hearing students," and her status as a sole 

practitioner whose adversaries in disability rights cases 

invariably are "prestigious law firms." Counsel cites no law 

in support of her billing practices, other than Bernardsville, 

Brd. of Educ. v. J.H., 817 F. Supp. 14, 23 (D.N.J. 1993), 

aff 'd in part, 42 F.3d 160, 160-61 (3d Cir. 1994) for the 

proposition that "degree of success" is a factor to be 

considered in assessing fee requests, and Public Interest 

Group v. Windall, 51 F.3d 1179 (3d Cir. 1995) for the 

proposition that the relevant legal community, for purposes 

of determining an hourly rate, is not confined necessarily to 

the borders of a town. 

Although the District Court has wide discretion in 

determining a fee award, we conclude that the fee awarded 

here was excessive. Our decision is predicated,first, on the 

fact that the Holmeses did not prevail on the 

reimbursement issue. Next, we find that counsel failed to 

properly support the hourly rate at which she requests 

reimbursement. We also find the fee breakdown provided in 

her billing records out of line with what is reasonable for 

counsel of the level of experience in litigating disability 

rights cases that counsel claims; with experience, the 

amount of time spent performing routine tasks in an area 

of one's expertise should decrease. Most significantly, we 

question the necessity of the great amount of time claimed 

by counsel for, inter alia, exploring DiFilippo's 

qualifications; we disagree with counsel's apparent

understanding of her degree of success, in light of the 

outcome on appeal; and finally we find that this litigation 

was needlessly protracted, extending far beyond what was 

reasonable, given the nature of the issues involved in this 

case, which are not novel. Moreover, we note that this is 

not a case in which the school district has been 

intransigent or willfully undermining a disabled student's 

education; rather, it is apparent from the record that the 

School District meant to comply with the letter and spirit of 

the IDEA. Thus, this case should have been resolved years 

ago. 

Based on our conclusion that the fees claimed here are 

not reasonable, we will reduce the award of attorney's fees 

 21 
and costs to one-fourth of the original $53,445.74 fee 

demand made by the Holmeses. 

IV. Conclusion 

For the foregoing reasons, we conclude that the District 

Court erred in requiring reimbursement to the Holmeses for 

the IEE. We will, however, affirm an award of attorney's fees 

and costs to the Holmeses, but, because we find that the 

award of fees excessive, we reduce it to $35,267.57, onefourth of $141,070.28 awarded by the District Court. 

 22 
GREENBERG, Circuit Judge, concurring and dissenting. 

I join in the majority's opinion except to the extent that 

it sustains any attorney's fee being paid to the Holmeses. 

Inasmuch as I depart from the majority's conclusion on the 

Chris DiFilippo matter, in my view the Holmeses were not 

prevailing parties under 20 U.S.C. S 1415(i)(3)(B), previously 

20 U.S.C. S 1415(e)(4)(B), in any respect. The majority 

indicates that this case "is not a classic situation for 

application of the catalyst theory because the record does 

not show definitively that the School District replaced 

DiFilippo in order to appease the Holmeses." Majority 

Opinion at 18 (citation omitted). I certainly agree with that 

statement as the record cannot even support an inferential 

conclusion that the School District replaced DiFilippo to 

appease the Holmeses or for any other purpose. To the 

contrary, DiFilippo left his interpreter position because, as 

the majority recognizes, he "did not want to undergo the 

stress and potential harassment of a hearing on his

qualifications." Majority Opinion at 6-7. Thus, as the 

majority recites, "the record shows that DiFilippo left the 

job of his own accord." Majority Opinion at 18. Nothing 

could be clearer. 

Obviously DiFilippo had good reason to take such action 

for, as the majority points out, he was familiar with 

proceedings under the IDEA. Accordingly, he knew what to 

expect at the anticipated hearing. In the circumstances, 

who could blame him for seeking a new position in order to 

stay out of this litigation? 

In any event, even if DiFilippo should not have been 

intimidated by the Holmeses' challenge to his qualifications, 

the fee award still is unjustified. After all, at least to the 

best of my knowledge, we never have applied the"catalyst 

theory" to award a plaintiff fees against a defendant in 

circumstances in which a plaintiff, as here, does not obtain 

any relief by judgment or settlement from the defendant 

and the defendant has done nothing to change its behavior 

"to eliminate the complained-of conduct." See Baumgartner 

v. Harrisburg Housing Auth., 21 F.3d 541, 544 (3d Cir. 

1994). As we indicated in Institutionalized Juveniles v. 

Secretary of Public Welfare, 758 F.2d 897, 910 (3d Cir. 

1985) (emphasis added), dealing with a fee application 

 23 
under 42 U.S.C. S 1988, "a court must decide whether 

plaintiffs are prevailing parties and whether there is a 

causal connection between the litigation and the relief 

obtained from the defendant." While there can be no doubt 

that DiFilippo took action which satisfied the Holmeses, he 

never has been a party to these proceedings in either their 

administrative or judicial aspects. Moreover, the Holmeses 

are not seeking any fees from him nor could they do so. 

Furthermore, the administrative hearing authorities' view 

that the matter of DiFilippo's qualifications was settled 

merely was a recognition that the issue was moot. 

Obviously, because the defendants neither unilaterally nor 

by agreement with the Holmeses removed DiFilippo as an 

interpreter, the parties to this litigation did not settle the 

case. 

Inasmuch as DiFilippo by his action mooted the 

controversy over his qualifications, no party could prevail 

on that issue and none has done so. Thus, we are not 

concerned here with the policy considerations we set forth 

in Baumgartner, i.e., if a defendant unilaterally could moot 

the underlying case by conceding to a plaintiff 's demands 

attorneys might be reluctant to bring civil rights suits. Id. 

at 548. In this regard I emphasize that there is no

suggestion in the record that the defendants acted in 

collusion with DiFilippo to moot the issues involving him. 

Thus, the defendants did not urge DiFilippo to apply for the 

new position to which he was transferred. 

I want to point out that the majority's opinion is very 

significant as it cannot be limited to IDEA cases. The 

provision that a fee may be awarded to a "prevailing party' 

in 20 U.S.C. S 1415(i)(3)(B) is reflected in other statutes. For 

example there are "prevailing party" provisions in the civil 

rights, 42 U.S.C. S 1988, and employment discrimination, 

42 U.S.C. S 2000e-5(k), statutes. As a result of this case we 

may anticipate that in future litigation in which plaintiffs 

obtain relief by reason of the actions of persons not parties 

to litigation they will seek fees from the defendants. 

Finally I want to point out that the Supreme Court 

recently in Friends of the Earth, Inc. v. Laidlaw 

Environmental Services (TOC), Inc., 120 S.Ct. 693, 711-12 

(2000), pointed out that there now is some question as to 

 24 
the continuing validity of the catalyst theory, although it 

indicated that it would be premature to address the issue 

in the context of that case. While I certainly recognize that 

the catalyst theory is followed in this circuit, in view of the 

Court's opinion in Laidlaw, we should not extend it. 

In view of the foregoing, while I agree completely with the 

majority that the IEE reimbursement should not be 

allowed, I would reverse the order awarding fees in its 

entirety. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 25