* Pursuant to 5TH CIR. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20367

Summary Calendar

_____________________

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Plaintiff-Appellee,

versus

DOUGLAS J.; CAROL J; REED J.,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No.97-CV-292

January 27, 1999

Before KING, Chief Judge, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Appellants, Reed J. and his parents, Douglas J. and Carol J.,

appeal the summary judgment in favor of Appellee Houston

Independent School District and the district court’s protective

order and associated award of attorney’s fees against Appellants.

We AFFIRM.

I.

Reed J. is a learning disabled high school student enrolled at

a school within the Houston Independent School District (HISD).
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During Reed J.’s third grade year, the HISD completed a

comprehensive individual assessment of Reed J., and an Admissions,

Review and Dismissal Committee (ARDC) determined that Reed J. was

eligible for special education as a learning disabled student in

the areas of written expression, reading, comprehension, and

speech. In February 1990 (Reed J.’s fourth grade year), an ARDC

developed an individual education plan (IEP) that addressed Reed

J.’s reading and writing deficits. Reed J. received resource

assistance for reading and writing during his fourth and fifth

grade school years.

When Reed J. was reevaluated in the sixth grade, HISD found

him to be reading on a second grade level. Although HISD

determined that Reed J. no longer qualified for special education

in speech, it recommended Reed J. for special education in reading

and writing. At a May 1994 meeting, an ARDC recommended further

modifications for his 1994-95 (eighth grade) IEP. At a December

1994 ARDC meeting, Reed J.’s failure of a piano class was discussed

and numerous modifications were recommended for Reed J.’s

instruction.

In May 1995, an ARDC determined that Reed J. would attend

Scarborough High School for 1995-96 because of its smaller size and

block scheduling. After Reed J. transferred to the high school,

his IEPs were four to six weeks late in arriving.

In October 1995, Dr. Jack Fletcher, Ph.D., a private
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neuropsychologist, examined Reed J. Dr. Fletcher determined that

Reed J. had dyslexia and Attention Deficit Hyperactivity Disorder.

Dr. Fletcher prepared a report containing the results of his

testing of Reed J., and an ARDC met in January 1996 to discuss the

report. IEPs were developed for Reed J. that provided for

extensive modifications, including, among other things, highlighted

texts. However, Dr. Fletcher’s report mistakenly listed much

higher scores on Reed J.’s test results than Reed J. actually

achieved; the ARDC, not knowing of the errors, used these scores in

developing the IEPs.

At a September 1996 ARDC meeting, Reed J.’s parents requested

that HISD provide Reed J. with a private reading tutor. The ARDC

refused. Reed J.’s parents placed Reed J. in a private reading

program, at a cost of $50 per week, and then filed for a due

process hearing, claiming that, because HISD had not provided Reed

J. with highlighted texts in all his courses as required by the

January 1996 IEPs, it had violated the Individuals With

Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and

denied Reed J. a free, appropriate public education (FAPE). 

A hearing was held, and the hearing officer found that Reed J.

had been denied a FAPE, but only because of HISD’s failure to

provide highlighted texts in all of Reed J.’s classes. The hearing

officer ordered HISD to reimburse the private tutor and

transportation costs through the end of the 1996-97 school year.
4

HISD filed an appeal in district court. The district court

granted HISD’s summary judgment motion, reversing the hearing

officer. Appellants contest that decision.

During those proceedings, Appellants’ counsel sent an e-mail

message to the employer of one of HISD’s expert witnesses that

apparently caused concern on the part of that witness. HISD moved

for a protective order. The district court granted the protective

order and concomitantly awarded HISD $1,943.75 in attorney’s fees

related to the preparation of the motion. Appellants also contest

this order.

II.

A.

Of course, we review a summary judgment de novo, applying the

same standard applied by the district court. E.g., Burns v. Harris

County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir. 1998). The

district court must give due deference to the hearing officer’s

findings. Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Our

court has interpreted this to mean that the district court is to

give those findings “due weight” in conducting a “virtually de

novo” review of the decision. Teague Independent Sch. Dist. v.

Todd L., 999 F.2d 127, 131 (5th Cir. 1993). 

Having reviewed the briefs and the record, we affirm the

summary judgment for essentially the reasons stated by the district

court in its comprehensive and well-reasoned opinion. Houston
5

Independent Sch. Dist. v. Douglas J., No. H-97-0292, slip op. at 5-

25 (S.D. Tex., Mar. 31, 1998).

B.

Appellants also contested the district court’s protective

order and associated attorney’s fees awarded HISD. We review such

orders for abuse of discretion. Leatherman v. Tarrant County

Narcotics Intelligence & Coordination, 28 F.3d 1388, 1394 (5th Cir.

1994); Landry v. Air Line Pilots Ass’n Int’l, AFL-CIO, 901 F.2d

404, 436 (5th Cir. 1990).

Federal Rule of Appellate Procedure 10(b)(2) states: “If the

appellant intends to urge on appeal that a finding or conclusion is

unsupported by the evidence or is contrary to the evidence, the

appellant shall include in the record a transcript of all evidence

relevant to such finding or conclusion.” Appellants contend that

“[t]he [district] court ignored the facts as provided by Reed’s

counsel”. However, in addition to failing to properly brief this

issue, Appellants have failed to provide this court with a

transcript of the hearing the district court held before ruling on

this matter. Thus, based on HISD’s motion for a protective order

and Appellants’ response, we are unable to conclude that the

district court abused its discretion in granting the protective

order or in awarding attorney’s fees.

In this regard, we uphold the district court’s use of an

affidavit detailing the bases for the requested attorney’s fees,
6

rather than contemporaneous time records. Appellants did not

object in district court; and they do not now cite any authority

that contemporaneous time records are required. In short, we find

no plain error. See, e.g., Douglass v. United Services Auto.

Ass’n, 79 F.3d 1415, 1424 (5th Cir. 1996)(“appellate courts have

discretion to correct unobjected-to (forfeited) errors that are

plain (“clear” or “obvious”) and affect substantial rights”).

III.

For the aforementioned reasons, we AFFIRM the summary judgment

and the protective order, including the related award of attorney’s

fees.

AFFIRMED