2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-27-2011

A. B. v. Montgomery County Intermediate

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2278

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-2278

_______________

A.B., by and through her parents,

Susan and Mark B.,

Appellant

v.

MONTGOMERY COUNTY INTERMEDIATE UNIT

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-07-cv-02798)

District Judge: Honorable Louis H. Pollak

_______________

Submitted Under Third Circuit LAR 34.1(a)

January 11, 2011

_______________

Before: RENDELL, AMBRO, and FISHER, Circuit Judges

(Opinion filed: January 27, 2011)

_______________

OPINION

_______________

AMBRO, Circuit Judge

Plaintiff-appellant A.B. appeals the District Court‟s decision granting summary 

judgment to defendant-appellee Montgomery County Intermediate Unit (“MCIU”) on 
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A.B.‟s claim under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et 

seq (“IDEA”).1 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have 

jurisdiction under 28 U.S.C. § 1291.

Under the IDEA, the District Court was “obliged to conduct a modified de novo

review, giving „due weight‟ to the underlying administrative proceedings.” C.H. v. Cape 

Henlopen Sch. Dist., 606 F.3d 59, 65 (3d Cir. 2010) (internal quotation marks and 

citation omitted). We review the District Court‟s legal conclusions de novo. Id. 

The IDEA requires states to provide a “free appropriate public education” 

(“FAPE”) to each disabled child between the ages of three and twenty-one. 20 U.S.C. 

§ 1412(a)(1)(A). States meet that requirement by creating for each disabled student an 

“individualized education plan” (“IEP”), which sets out a “package of special educational 

and related services designed to meet the unique needs of the disabled child.” Ferren C. 

v. Sch. Dist. Of Phila., 612 F.3d 712, 717 (3d Cir. 2010) (internal quotation marks and 

citation omitted). To satisfy the IDEA, an IEP must be “„reasonably calculated‟ to enable 

the child to receive „meaningful educational benefits‟ in light of the student‟s „intellectual 

potential.‟” Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 

2004) (citation omitted). Parents who believe that the implementation of a proposed IEP 

will not result in a FAPE for their child are entitled to an “impartial due process hearing,” 

presided over by a hearing officer. 20 U.S.C. § 1415(f). 

 

1 A.B. also filed suit under the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. 

§ 1983, but does not appeal the District Court‟s grant of summary judgment as to those 

claims.
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A.B. is a hearing-impaired child with a cochlear implant, and MCIU created for 

her an IEP directing that she begin preschool at a planned (but not yet operational) public 

school classroom designed for children with hearing impairments. A.B.‟s parents, who 

wanted A.B. to attend the Clarke Pennsylvania School instead of the designated public 

school, unsuccessfully challenged this decision in a due process hearing, and then 

appealed to the District Court. It rejected the appeal in a carefully reasoned 32-page 

opinion. 

In our Court, A.B. primarily argues that the District Court should have rejected the 

hearing officer‟s conclusions based on his purported bias, or at least should have 

permitted discovery about the potential bias. A.B.‟s bias allegation is based on the fact 

that the hearing officer was a former co-worker with MCIU counsel and a current coworker with MCIU counsel‟s wife. A.B. further theorizes that the resulting bias led the 

hearing officer to reject the testimony of her expert witness, Jean Moog, and that this 

exclusion tilted the balance of the evidence away from A.B. and toward MCIU. 

Additionally, A.B. generally challenges the sufficiency of the IEP, and argues that it was 

improper for MCIU to propose that A.B. be placed in a classroom that was not 

operational at the time the IEP was drafted. 

The District Court rejected A.B.‟s argument that due process required the hearing 

officer, at minimum, to disclose his working relationship with MCIU counsel or 

counsel‟s wife. Nonetheless, the Court agreed with A.B. that the hearing officer erred by 

discounting Moog‟s testimony. However, the District Court then reviewed the entirety of 

the evidence, including Moog‟s testimony, and concluded that A.B. and her parents had 
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not satisfied the relevant legal standard because their evidence went primarily to whether 

the IEP would provide an ideal education, and not whether it was “reasonably calculated” 

to provide “meaningful educational benefits.” Accordingly, the District Court concluded 

that the hearing officer‟s determination should not be disturbed. 

After reviewing the parties‟ briefs and relevant portions of the record, we conclude 

that the District Court correctly applied the relevant legal standards, and affirm for 

substantially the reasons stated by that Court.