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. e du/thir dc ir c uit_2000/33Filed 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 Distric t Court Judge for the Eastern District of Pennsylvania, sitting by design ation.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 A ct ("IDEA"), 20 U.S.C. SS 1400 et seq ., to recover at torney'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 Millcre ek Township School ("School District"), and in protest ing the qualifications of a sign language interpreter whom the School District had assigned to work with their dau ghter. In addition, the Holmeses sued for reimbursement by the School District of the costs of the 1994 Independen t 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 attor ney'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 cost s. 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 t he

2Millcreek School District and was assigned to the S chool

District's Belle Valley Elementary School.

Because of Rebecca's disability, School District of ficials made arrangements for her to undergo a comprehensiv e psycho-educational evaluation. The purpose of the

evaluation was to assist the School District in cre ating a suitable Individualized Educational Plan ("IEP") fo r Rebecca, as required by IDEA.2 Personnel at the Center for D eafness at the Western Pennsylvania School for the Deaf (th e "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 ad dition, Rebecca used a hearing aid and part-time interprete r services in the classroom. The interpreter, Kevin F eyas, was employed by the School District. In addition, on Se ptember 1, 1992, Chris DiFilippo was hired by the School Di strict as an interpreter for deaf students at Belle Valley. D iFilippo 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 Distr ict would be obligated to do a multi-disciplinary re-ev aluation

of Rebecca. The re-evaluation would determine Rebec ca's continued eligibility for special education service s and recommend a plan for the 1994-95 school year. The Holmeses did not agree with the method of re-evalua tion proposed by the School District because a sign lang uage interpreter would be used. The Holmeses believed th at Rebecca should be assessed only by people who could communicate directly with her by sign language whil e she was being tested.

On December 6, 1993, mid-way through Rebecca's 6th grade year, Mrs. Holmes asked the School District t o have the WPSD conduct an IEE of Rebecca as part of the r eevaluation. Mrs. Holmes asked the School District t o pay for this second IEE. The School District refused to pay for additional assessments by the WPSD but proposed to

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2. See Part III.A. infra.

3perform 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 t he

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 Re becca on February 10, 1994. The resulting IEE consisted o f two reports. The first, a two-page re-evaluation of Reb ecca's sign language skills, was authored by Marlene Schec terConnors. The second, a ten-page "Interview Summary, " was prepared by a psychologist, Dr. Paul Loera. Dr. Loe ra met with Rebecca and her parents and reviewed various materials produced in 1992 by the WPSD in connectio n with its first evaluation of Rebecca.

On March 4, 1994, the School District filed a reque st for a due process hearing on the appropriateness of its proposed re-evaluation of Rebecca. Prior to the hea ring, the parties engaged in mediation but were unable to rea ch an agreement. The Holmeses then obtained a continuance of the hearing because they were involved in another d ue process proceeding concerning the education of thei r son, Matthew, who is also hearing-impaired.

On April 4, during the period of the continuance, t he School District asked the Holmeses for permission t o reevaluate Rebecca. Mrs. Holmes requested that the Sc hool District not perform any testing, evaluating, or ot her procedures that would result in a written report th at could be incorporated into Rebecca's multi-disciplinary t eam ("MDT") report. Mrs. Holmes also informed the Schoo l District that she would require that WPSD-approved personnel be members of the MDT and that she had no t 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 Comprehensi ve Evaluation Report ("CER") for the MDT. The data in the

4CER included the WPSD 1992 IEE of Rebecca, evaluati ons

from Rebecca's speech therapist, and a language eva luation of Rebecca by Kevin Feyas. Dr. Lansberry also infor mally 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 woul d not consent to any testing to re-evaluate Rebecca. A co py of the draft CER was sent to the Holmeses on July 7, 1994, nine days after the WPSD's 1994 IEE reports was transmit ted to

the School District.

At the start of the 1994-95 school year, two MDT meetings were held, with the Holmeses present, to d evelop an IEP for Rebecca. The resulting four-page CER sta ted that Rebecca "will have access to a sign language interpreter throughout all of her school day" and a ccess to structured study guides. In response to the CER, th e Holmeses wrote a dissenting opinion in which they s tated that they were dissatisfied with Dr. Lansberry's re port. They contended that the CER contained errors of fact, ex cluded important information, and did not include informat ion 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, 1 995. 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 fo r the 1994 IEE performed by the WSPD. The bill for the 19 94 IEE was $400. The Holmeses presented this bill to the S chool District on May 16, 1995. In January 1995, the Holm eses had also raised concerns with the School District a bout the qualifications of Rebecca's interpreter, Chris DiFi lippo. DiFilippo had become Rebecca's full-time interprete r in December 1994 after her prior interpreter, Tina Ham mer, left. DiFilippo began working with Rebecca on a dai ly basis on January 3, 1995. On January 23, after Rebecca complained about DiFilippo, the Holmeses requested a due

5process hearing regarding his qualifications. Prior to the

hearing, the School District provided the Holmeses with evaluations to demonstrate that DiFilippo was quali fied. 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. Hollra h viewed a tape of DiFilippo interpreting for Rebecca in sev eral classes. On February 16, 1995, Hollrah informed the School District that DiFilippo had done "a very nic e and satisfactory job of communicating the material pres ented in all classes videotaped." When later deposed, howeve r, Hollrah stated that she did not know whether DiFili ppo was qualified, that she had been unaware that a student had challenged his interpreting skills when she reviewe d the tape, and that, had she been aware of the student's complaint, she would have wanted to meet with the s tudent and get further information before rendering an ass essment 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 ad dition, they had asked to present evidence regarding the IE E reimbursement issue. Although the School District h ad not yet received a bill for the IEE, the Holmeses' coun sel 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 Off icer announced that Marilyn Mitchell of the National Tec hnical Institute for the Deaf would evaluate DiFilippo's s kills on

behalf of the Holmeses. The Holmeses had chosen Mit chell to evaluate DiFilippo without input from the School District, and the Holmeses paid for Mitchell's serv ices. On March 21, Mitchell reported that in her opinion DiF ilippo was not an adequate interpreter for Rebecca.

On March 8, however, prior to Mitchell's report and before anyone was familiar with its contents, DiFil ippo requested to be relieved of the interpreter positio n and to be transferred to the position of "special education a ssistant." The request was made in part because DiFilippo did not want to undergo the stress and potential harassment of a

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

District notified the Holmeses that DiFilippo had a pplied for the new position, and, on March 20, the School Dist rict approved DiFilippo's transfer to the position of sp ecial

education assistant.

Despite DiFilippo's transfer to a new job, when the due process hearing was reconvened on March 21, the Hea ring Officer concluded that the issue of DiFilippo's qua lifications was not moot. The hearing officer came to this conc lusion because he found that a decision on DiFilippo's qualifications would be helpful in resolving Rebecc a's claim for compensatory education during the period in whi ch DiFilippo had served as her interpreter.

On April 6, the School District offered tutoring to Rebecca. The tutoring was to consist of one hour fo r each of the forty seven days that DiFilippo had worked w ith 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. T he School District then asked what, other than the tutoring, could be provided to help Rebecca in her studies. The Holmes es requested study guides for math, a subject in which the

School District had determined that Rebecca was wea k, regardless of her disability.

On June 1, 1995, after nine days of proceedings, th e Hearing Officer decided that the parents were entit led to reimbursement for the 1994 IEE. Specifically, the H earing Officer concluded that "it is clear that the privat e evaluations secured by the parents provided meaning ful information which helped to determine the nature an d extent of Rebecca's disability along with necessary programming." The Hearing Officer did not, however,

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3. DiFilippo already was familiar with such hearing s because his brother Dean had served as an interpreter for Rebecca's bro ther. Dean DiFilippo had undergone a due process hearing, initiated by t he Holmeses, over his qualifications. Chris DiFilippo had attended th e hearing, witnessed the way in which the process had unfolded, and seen that the Holmeses had prevailed against his brother.

7determine 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 dir ectly sign with her as she is being tested for an appropr iate

evaluation."

The School District appealed. On July 28, 1995, the Special Education Due Process Appeals Review Panel unanimously reversed the Hearing Officer's determin ation.

The Panel concluded that the School District did no t have

to reimburse the Holmeses for the 1994 IEE because the Hearing Officer had committed legal error when he d id not consider whether the School District could provide an "appropriate" re-evaluation. Instead, the Hearing O fficer

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 Ho lmeses' requirement, that the evaluator be fluent in sign l anguage and that an interpreter not be employed, had not be en 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.

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4. Both the Hearing Officer and the Review Panel co ncluded that the issue of whether DiFilippo was qualified had been s ettled; thus, neither one determined whether the interpreter was qualifie d. See app. at 1318 ("When Rebecca's hearing began a second issue regar ding qualifications of her interpreter was introduced. . . The parties eventually reached an agreement on the issue of the interpreter and the s ole remaining issue was concerned with the request for reimbursement fo r 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 compens atory education services and substitute interpreter qualifications, were resolved.").

8Subsequently, the Holmeses sought payment of

attorney's fees, incurred up to that time, in the a mount of $53,445.74. The School District denied the Holmeses ' claim on the ground that the parents had not been a preva iling party in the due process hearings.

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

United States District Court for the Western Distri ct of Pennsylvania. They requested attorney's fees and co sts as the prevailing party within the meaning of 20 U.S.C

. S 1415. The Holmeses claimed to be the prevailing p arty 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 reassigne d DiFilippo, had assigned another interpreter to Rebe cca, 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 i ts opinion from the bench. The court found that the Ho lmeses 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 th e School District to formulate Rebecca's CER. The cou rt did not analyze whether the School District could itsel f have conducted, or did conduct, an appropriate re-evalua tion. On August 27, 1998, the District Court issued an or der awarding attorney's fees of $141,070.28 to the Holm eses.

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 pursu ant 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 G roup, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991). We have p lenary review over the District Court's choice, interpreta tion and application of the law to the facts. Epstein Family Partnership v. Kmart Corp., 13 F. 3d 762, 765-66 (3 d Cir. 1994). Generally, we review a fee award for abuse o f

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

Where, however, the question is whether the Distric t Court applied the correct legal standard, our review is p lenary. Id.

III. Discussion

A. Statutory Framework

IDEA establishes minimum requirements for the

education of children with disabilities.5 The stat ute requires states to provide such children with a "free[and] appropriate public education," which is based on th e 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 i s classified as disabled. 20 U.S.C. S 1401(a)(18). An IEP consists of a specific statement of a student's pre sent abilities, goals for improvement of the student's a bilities, services designed to meet those goals, and a timeta ble for reaching the goals by way of the services. Id . at S 1401(a)(20). The Congressional purpose in enactin g IDEA was to provide "access to a `free appropriate publi c education' . . which . . . is . . sufficient to con fer some educational benefit upon the handicapped child." Bo ard of Education v. Rowley, 458 U.S. 176, 200 (1982). In t his way,

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5. IDEA was enacted "to assure that all children wi th disabilities have available to them . . . a free appropriate public e ducation which emphasizes special education and related services d esigned to meet their unique needs [and] to assure that the rights of chi ldren 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 service s that--

(A) have been provided at public expense, un der pu blic supervision and direction, and without charge,

(B) meet the standards of the State educatio nal ag ency,

(C) include an appropriate preschool, elemen tary, or secondary school education in the State involved, and

(D) are provided in conformity with the indi vidual ized education program required under section 1414(a)(5) of this title.

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

.

10the 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 pr ocedural safeguards for children with disabilities and for t heir parents; among the most important of these safeguar ds is allowing parents to dispute the appropriateness of their child's IEP through an impartial due process hearin g. 20

U.S.C. S 1415.

Under Pennsylvania law, an IEP is defined as "[A] w ritten plan for the appropriate education of an exceptiona l student." 22 Pa. Code S 14.31(b).7 The Commonwealth requires an IEP to include: 1) a statement of the s tudent's present levels of educational performance; 2) a sta tement of annual goals and short-term learning outcomes which are responsive to the learning needs identified in an e valuation report; and 3) a statement of the specific special education services and programs and related services to be pr ovided to the disabled student. 22 Pa. Code S 14.32(f). Pa rents may request due process hearings about the appropriaten ess of the IEP pursuant to 22 Pa. Code S 14.64(a). 8

B. Reimbursement for the IEE

Pennsylvania regulations allow parents to be reimbu rsed for a private evaluation of a disabled student if t hat evaluation was sought as a result of the parent's

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7. Pennsylvania defines the term "exceptional child ren" as "children of school age who deviate from the average in physical , mental, emotional

or social characteristics to such an extent that th ey require special

educational facilities or services . . . ." Pa. Sta t. Ann. Title 24, S 13- 1371(1).

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

"Parents may request an impartial due proces s hearing concerning the identification, evaluation or educationa l placement of . . . a

child who is eligible or who is thought to be elig ible, if the parents disagree with the school district's identifi cation, evaluation or placement of . . . the student . . . ."

11disagreement with the school's MDE, and if the eval uation

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 Schoo l District of their belief that it could not properly re-evaluate Rebecca. Thus, prior to obtaining an IEE, the Holme ses met their burden of stating their disagreement with the School District's process of evaluating their daughter. Th e crucial issue is, however, whether the Holmeses demonstrate d that the School District's evaluation of their daughter was inappropriate.

First, we note that the District Court did not dire ctly address the issue. The court's only reference to wh ether the School District's evaluation was appropriate was ob lique: "Rebecca got a full-time interpreter because of eva luation initiated by the parents, not the school district." Thus, rather than considering whether the School District 's reevaluation was appropriate, the court focused on th e School District's purported reliance on the WPSD re port in formulating Rebecca's educational plan.

This was error. The School District is required by federal

and state law to consider all evaluations of disabl ed students. See 34 C.F.R. S 503(c) (stating that if t he parents obtain an IEE at private expense, the results "[m]u st be considered by the public agency"); see also 22 Pa. Code S 14.67(c)("if parents obtain an IEE at private exp ense, the results . . . shall be considered by the district i n decisions made with respect to the provision of a free approp riate public education to the student."). For that reason , the fact

that the School District considered the WSPD's seco nd evaluation of Rebecca does necessarily indicate tha t reimbursement is required.

The Holmeses may be reimbursed for the WPSD IEE onl y by showing that the School District's 1994 re-evalu ation would be inappropriate. Bernardsville Board of Educ ation 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 beca use of the lack of expertise of the individuals who conduc ted it,

12they base their position not on statutory or regula tory

language but on expert opinions which do not have t he

force of law.

The Holmeses argue that the Pennsylvania Department of

Education's 1995 Guidelines on the "Education of St udents with Hearing Loss" supports their position. The Hol meses 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 evaluati ng hearing disabled students. ("The participation of t he psychologist is necessary in any MDT. . .. It is cr itical that the psychologist be fluent in the communication mod e 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 educat ional services and were made for purposes of advocacy. Th ey 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 i s currently a difference between the professional optimum and t he legal minimum.") (citations omitted). Thus, the Boa rd concluded, "contrary to the parents assertion, neit her Pennsylvania or federal statutes and regulations ha ve adopted [the Holmeses'] position."10

The Holmeses go on to assert that the school psychologist, Dr. Lansberry, was not fluent in Amer ican

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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 sc hools in August of 1995, it is not clear when they were in the possess ion of the relevant officials at the Millcreek School District. See app . at 1613.

10. In addition, a circular from the Pennsylvania D epartment of Education, dated March, 1992, recommended that when a student's disability involves hearing loss, the MDT should"in clude evaluators knowledgeable about deafness/hearing impairment." T he department noted, however, that when such evaluators are not a vailable, a "qualified interpreter must be utilized during evaluations and conferences."

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

Rebecca appropriately. They claim that Dr. Lansberr y "admitted that he was not qualified to evaluate Reb ecca's need for interpreting services." In addition, the H olmeses argue that Kevin Feyas, who served as Dr. Lansberry 's interpreter, was not credentialed as either an inte rpreter 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 th at 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. W e must give "due weight" to the underlying state administr ative proceedings. Id. at 206. In the instant action, the Appeals Review Panel concluded that Dr. Lansberry and other s 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 interpret ed Rowley as requiring us to accept such findings. See Carlis le Area School, 62 F.3d at 529. Here, however, we do notfin d sufficient evidence in the record to persuade us th at we should second-guess the findings of the Board and t he opinion of the School District. We find no indicati on that Dr. Lansberry, with the aid of Kevin Feyas, rather than the hypothetical psychologist trained in ASL, could not appropriately evaluate Rebecca. Dr. Lansberry testi fied that, with the help of translators, he had dealt wi th 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 f or purposes of creating an IEP. We conclude that Dr. Lansberry provided valuable information concerning Rebecca's need for increased interpreter services b y assessing, inter alia, Rebecca's feelings about bei ng hearing impaired, her desire for interpreter services, her academic abilities, and her academic progress.

14Moreover, the School District's determinations abou t

Rebecca's educational needs for the 1994-95 school year were based on the work of the entire MDT, rather th an on the expertise of any one member of the MDT, includi ng Dr. Lansberry. While ASL-fluent psychologists may be preferred, the Holmeses' own experts acknowledged t hat, with the help of a translator, appropriate evaluati ons 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 w as better-qualified than the WPSD's staff to evaluate Rebecca. For instance, the School District's staff were fami liar 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 teachin g the deaf at the time that he served as Dr. Lansberry's interpreter, the record shows that Mr. Feyas had wo rked with Rebecca for over two years and was aware of he r preferred method of communication. Moreover, Feyas was familiar with the Belle Valley curriculum and had b een certified by the state as a teacher for the hearing impaired. While Feyas was not certified by the Registry of In terpreters for the Deaf, a national registry, he had a provisi onal certification from another national organization, t he Council of Education for the Deaf. These facts do not suppo rt 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 t hat the

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11. Moreover, we note, as did the Appeals Review Pa nel, 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 ob ligation to conduct an appropriate evaluation." As a result of this denial of consent, Dr. Lansberry was limited to reviewing, inter alia , pr evious evaluations of and data about Rebecca, and informal meetings with Rebecca and her interpreter, Mr. Feyas.

15Holmeses 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 cost s to the Holmeses because it found that they had prevail ed in the due process hearing regarding the IEE and DiFil ippo's qualifications. As to the latter, the Court found t hat the Holmeses had achieved three objectives: DiFilippo h ad been removed from his position as Rebecca's interpreter, another interpreter had been assigned, and Rebecca had rece ived compensatory education for the period during which DiFilippo worked as her interpreter. The award of a ttorney'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 proceedi ng brought under this subsection, the court, in its discretion , may award reasonable attorneys' fees as part of the cos ts to the parents or guardian of a child or youth with a disa bility 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 mandato ry. To qualify as a "prevailing party" within the meaning of the provision, a litigant must demonstrate that he obta ined relief on a significant claim in the litigation, th at such relief effected a material alteration in his legal relatio nship 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, 7 91-93 (1989); Hensley v. Eckerhart, 461 U.S. 424 (1983). Further, the litigant must show that there is a "causal conn ection between the litigation and the relief from the defe ndant." Institutionalized Juveniles v. Secretary of Pub. We lfare, 758 F.2d 897, 910 (3d Cir. 1985); see also Wheeler v. T owanda Area Sch. Dist., 950 F.2d 128, 131 (3d Cir. 1991). The pressure resulting from on-going litigation is suff icient to

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12. The standards governing the award of attorneys' fees under 42 U.S.C. S 1988 are applicable to awards sought under the ID EA. 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).

16satisfy this standard. Baumgartner v. Harrisburg Ho us.

Auth., 21 F.3d 541, 545-50 (3d Cir. 1994) (affirmin g viability of "catalyst theory," by which plaintiffs are eligible for fees without obtaining a judgment or formal set tlement, as long as they prove that the suit accomplished it s objective); see also D.R. v. East Brunswick Bd. of Educ., 109 F.3d 896, (3d Cir. 1997) (settlement agreement volu ntarily and willingly entered into by school district and p arents of handicapped child during IDEA mediation created bin ding contract between parties and was enforceable); cf. Farrar v. Hobby, 506 U.S. 103, 112 (1992) (holding that plain tiff who wins nominal damages is prevailing party under sect ion 1988, but finding attorney's fee award inappropriat e).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 c oncluded that "but for the [due process] hearings,[Chris DiF ilippo] would have stayed at his original position." Becaus e of the facts that the Holmeses initiated the hearing proce ss, that DiFilippo resigned, and that a new interpreter was assigned, the court found that the Holmeses had ach ieved

their desired relief.

In support of its argument that the attorney's fee award was in error, the School District cites cases holdi ng that plaintiffs may only be considered a prevailing part y if the defendant's change of conduct is required by a laws uit or a "lengthy enforceable settlement agreement." E.g. Pa tricia 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 co mport with Baumgartner. The School District contends that the catalyst theory requires "legal change" favorable t o the

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13. The Supreme Court recently in Friends of the Ea rth, 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 tha t case as being premature. The Court indicated that any request for costs, including attorney's fees, must be addressed in the first ins tance by the District

Court.

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

with such affirmative change. Thus, the "but for an alysis 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 Boar d of

Education of Downers Grade School Dist. No. 58 v. S teven 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 Ri ver 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 notifyin g 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 th e Holmeses' opinion about his qualifications.

Nevertheless, the record also demonstrates that the Holmeses' objective of no longer having DiFilippo s erve 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 embarrassme nt that DiFilippo left the interpreter's job. Although DiFi lippo's decision to leave the position as interpreter and t ake another (significantly lower-paying) job say seem t o 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 Rebecc a for the period during which DiFilippo was her interpreter

buttresses the inference that the Holmeses' challen ge to DiFilippo's qualifications resulted in the requisit e "legal change" needed to demonstrate success for purposes of an award of attorney's fees and costs.

This case is distinguishable from Wheeler v. Towand a Area Sch. Dist., 950 F.2d 128 (3d Cir. 1991), a cas e upon which the School District relies in challenging the

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

student challenged the qualifications of the interp reter assigned to work with their child. We affirmed the denial of an attorney's fee award to the parents who made tha t 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 t heir lawsuit and the hiring of a new interpreter. Id. W e noted that the school district had begun searching for a new interpreter months before the resolution of the administrative action initiated by the Wheelers, ba sed, in part, on the fact that the interpreter had fallen i ll.

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 moti vated by the Holmeses' actions, in particular, the stress an d 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 , 4 89 U.S. at

791-93.

Nevertheless, we find that the amount of the award was excessive. First, the Holmeses are no longer the pr evailing party on the issue of reimbursement for the 1994 IE E. In addition, we note that both the Hearing Officer and Appeals

Review Panel felt that the Holmeses and their couns el had "contributed to" the needlessly "protracted proceed ings." We

also note that the Holmeses bear the burden of esta blishing the reasonableness of the requested fees and are re quired to submit evidence to support their claims for hour s 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 10 37.

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 attorne ys who performed the tasks involved. Washington, 89 F.3d a t 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 oth er

19than 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 "hour s 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 h ourly rate of the Holmeses' counsel, nor the hours expend ed in performing tasks for this litigation, is reasonable . The School District argues that counsel for the appelle es failed to produce sufficient evidence that her rate reques t is commensurate with her skill, experience, and reputa tion in the community. She offers only her own affidavit in support of her rate and bases the rate on the prevailing ho urly rate in Philadelphia or statewide. The School District i s 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 coun sel for the appellees. The School District lists twenty-nin e such instances of excessive billing, including: 111.5 ho urs for preparing an answer and brief in opposition to the School District's Exceptions to the Hearing Officer's deci sion; fortysix hours for preparing the complaint in this actio n; two and a half hours for preparing a self-executing dis closure; eighty-seven hours for the taking of and preparing for depositions regarding DiFilippo's qualifications; t en 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 respo nses regarding DiFilippo's qualifications; twenty-five h ours 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 pr oposed 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 achie ved in this litigation, the four-plus years spent in litig ation over the issues involved in this action, the "risk of no npayment"

20assumed "when she undertakes to represent parents o f 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 cit es no law in support of her billing practices, other than Ber nardsville, 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 In terest Group v. Windall, 51 F.3d 1179 (3d Cir. 1995) for t he proposition that the relevant legal community, for purposes of determining an hourly rate, is not confined nece ssarily to

the borders of a town.

Although the District Court has wide discretion in determining a fee award, we conclude that the fee a warded here was excessive. Our decision is predicated,firs t, on the fact that the Holmeses did not prevail on the reimbursement issue. Next, we find that counsel fai led to properly support the hourly rate at which she reque sts reimbursement. We also find the fee breakdown provi ded in her billing records out of line with what is reason able for counsel of the level of experience in litigating di sability 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 significan tly, 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 li tigation was needlessly protracted, extending far beyond wha t was reasonable, given the nature of the issues involved in this case, which are not novel. Moreover, we note that t his is

not a case in which the school district has been intransigent or willfully undermining a disabled st udent's education; rather, it is apparent from the record t hat 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 attorne y's fees

21and 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 Dis trict Court erred in requiring reimbursement to the Holme ses for the IEE. We will, however, affirm an award of attor ney's fees and costs to the Holmeses, but, because we find tha t the award of fees excessive, we reduce it to $35,267.57 , onefourth of $141,070.28 awarded by the District Court

.

22GREENBERG, Circuit Judge, concurring and dissenting

.

I join in the majority's opinion except to the exte nt that it sustains any attorney's fee being paid to the Ho lmeses. Inasmuch as I depart from the majority's conclusion on the Chris DiFilippo matter, in my view the Holmeses wer e 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 majo rity

indicates that this case "is not a classic situatio n for application of the catalyst theory because the reco rd does not show definitively that the School District repl aced DiFilippo in order to appease the Holmeses." Majori ty Opinion at 18 (citation omitted). I certainly agree with that statement as the record cannot even support an infe rential conclusion that the School District replaced DiFili ppo to appease the Holmeses or for any other purpose. To t he contrary, DiFilippo left his interpreter position b ecause, as the majority recognizes, he "did not want to underg o 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. Not hing

could be clearer.

Obviously DiFilippo had good reason to take such ac tion for, as the majority points out, he was familiar wi th proceedings under the IDEA. Accordingly, he knew wh at to expect at the anticipated hearing. In the circumsta nces, who could blame him for seeking a new position in o rder to stay out of this litigation?

In any event, even if DiFilippo should not have bee n intimidated by the Holmeses' challenge to his quali fications, the fee award still is unjustified. After all, at l east to the best of my knowledge, we never have applied the"cat alyst theory" to award a plaintiff fees against a defenda nt in circumstances in which a plaintiff, as here, does n ot obtain any relief by judgment or settlement from the defen dant and the defendant has done nothing to change its be havior "to eliminate the complained-of conduct." See Baumg artner v. Harrisburg Housing Auth., 21 F.3d 541, 544 (3d C ir. 1994). As we indicated in Institutionalized Juvenil es v. Secretary of Public Welfare, 758 F.2d 897, 910 (3d Cir. 1985) (emphasis added), dealing with a fee applicat ion

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

plaintiffs are prevailing parties and whether there is a causal connection between the litigation and the re lief

obtained from the defendant." While there can be no doubt that DiFilippo took action which satisfied the Holm eses, he never has been a party to these proceedings in eith er their administrative or judicial aspects. Moreover, the H olmeses 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 s ettled merely was a recognition that the issue was moot. Obviously, because the defendants neither unilatera lly 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 no t concerned here with the policy considerations we se t forth in Baumgartner, i.e., if a defendant unilaterally c ould 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 involvi ng him. Thus, the defendants did not urge DiFilippo to appl y 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 "prevailin g 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 discrimina tion, 42 U.S.C. S 2000e-5(k), statutes. As a result of th is case we may anticipate that in future litigation in which p laintiffs obtain relief by reason of the actions of persons n ot parties to litigation they will seek fees from the defendan ts.

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

24the continuing validity of the catalyst theory, alt hough it

indicated that it would be premature to address the issue in the context of that case. While I certainly reco gnize 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