United States Court of Appeals

For the First Circuit

No. 14-1177

SOUTH KINGSTOWN SCHOOL COMMITTEE,

Plaintiff, Appellee,

v.

JOANNA S., as parent of P.J.S.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Thompson, Kayatta and Barron,

Circuit Judges.

Christine H. Barrington, with whom ACCESS! Education

Consulting was on brief, for appellant.

Mary Ann Carroll, with whom Brennan, Recupero, Cascione,

Scungio & McAllister, LLP was on brief, for appellee.

December 9, 2014
BARRON, Circuit Judge. The Individuals with Disabilities

Education Act, or IDEA, 20 U.S.C. § 1400 et seq., is a landmark

federal statute now twenty-five years old. It offers federal funds

to states that agree to provide protections to make sure disabled

children receive a "free appropriate public education." Id.

§ 1412(1). Rhode Island, where this case arose, accepted IDEA

funding and thus agreed to provide those protections. See 21-2-54

R.I. Code R. § 300.2(a). And that sets the stage for this appeal.

The appellee, South Kingstown School Committee, runs one

of Rhode Island's public school districts. The appellant is the

mother of a disabled child the School Committee is responsible for

educating. The mother contends the School Committee failed to meet

its IDEA obligations. She focuses in particular on the School

Committee's failure to protect her right to an evaluation to

determine her child's educational needs. See id. §§ 300.304,

300.502.

The outcome of this appeal turns in part on what the

record shows about how well the School Committee performed an

evaluation of the mother's child. But the outcome also turns on

the meaning of a Settlement Agreement between the mother and the

School Committee over which evaluations the School Committee would

perform.

We hold the District Court rightly concluded the

Settlement Agreement relieves the School Committee of any

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obligation to perform or fund one of the evaluations the mother

seeks. We also hold the District Court did not err in concluding

there was insufficient factual support for her other evaluation

request. Still, we remand for the District Court to consider

whether the mother deserves attorneys' fees for her success in

securing yet a third evaluation, which the School Committee did not

challenge in District Court and thus does not contest here.

I.

Joanna S. brings this appeal on behalf of her son, P.J.

–- we use only initials out of respect for their privacy. P.J. is

a disabled student. He used to attend a public school in the South

Kingstown public school district, which the South Kingstown School

Committee runs. P.J. now attends, with funding from the School

Committee, a private school in East Providence, Rhode Island.

Joanna S. contends the Rhode Island statute and

regulations that implement IDEA require the School Committee to pay

for two independent evaluations of P.J. The first is an

"occupational therapy" evaluation, which would evaluate P.J.'s

motor skills and sensory processing abilities. The second is a

"psychoeducational" evaluation, which would evaluate P.J.'s

educational progress and needs.

Evaluations are integral to the way IDEA works. They

determine whether a child "qualifies as a child with a disability"

and thus for IDEA protection. 21-2-54 R.I. Code R. § 300.300(a). 

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For children who do qualify, like P.J., evaluations also perform

another important function. They "assist in determining . . .

[t]he content of the child's" Individualized Education Program, or

IEP. Id. § 300.304(b)(1)(ii). 

The IEP sets forth the services a disabled child will

receive and the educational goals for that child. Id.

§ 300.320(a). The IEP thus gives practical substance to IDEA's

right to a free appropriate public education. And for that reason,

evaluations are a key means -- perhaps the key means -- for

deciding the content of the protections IDEA offers.

In the first instance, the school district must perform

IDEA evaluations. Id. §§ 300.301, 300.303, 300.304. But IDEA also

provides for "independent" evaluations. For that type of

evaluation, the parent selects the evaluator, id. § 300.502, and a

school district must pay for that evaluation. But that obligation

to pay kicks in only if a school district has first failed to

perform its own evaluation well enough for it to be deemed

"appropriate." Id. § 300.502(b)(2), (5). The right to have a

school district pay for an independent evaluation, therefore, is a

backstop. It offers a parent a remedy when a school district fails

to carry out its evaluative responsibilities properly.

The dispute between Joanna S. and the School Committee

that is at issue in this appeal does not directly concern an

evaluation the School Committee must perform. Or, at least, Joanna

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S. says it does not. Instead, Joanna S. wants us to give effect to

a favorable administrative ruling she characterizes as having

required the School Committee to fund two independent evaluations.

The administrative ruling is not entirely clear, however,

on that point. The part of the administrative ruling that concerns

the occupational therapy evaluation clearly does require an

independent evaluation. But the part that addresses the

psychoeducational evaluation is more ambiguous. It could be read

to require the School Committee to pay for an independent

psychoeducational evaluation or to require the School Committee to

perform the psychoeducational evaluation itself. As we will

explain, we need not resolve the ambiguity.

To see why, though, we need to provide some further

details about the history that underlies the dispute between Joanna

S. and the School Committee over these evaluations. Joanna S.

first made the evaluation request that gave rise to this appeal in

February of 2012. That was when she brought what is known as a

"due process complaint." IDEA and the Rhode Island laws

implementing IDEA allow both school districts and parents to file

a "due process complaint." Id. § 300.507(a)(1). Such a complaint

sets in motion a state administrative process for adjudicating a

dispute over the "identification, evaluation, or educational

placement of [a disabled] child or the provision of [free

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appropriate public education] to the child." Id. § 300.503(a); see

also id. § 300.507(a).

In her due process complaint, Joanna S. sought additional

educational services for P.J. from the School Committee. These

included a private school placement. She also sought eight new

evaluations of P.J.

Before any administrative proceeding began, however, the

School Committee agreed to a settlement with Joanna S. That

settlement resolved Joanna S.'s due process complaint. In the

Settlement Agreement, the School Committee promised to pay for P.J.

to attend the Wolf School, a private school. The School Committee

also agreed to perform four evaluations of P.J. before he began at

the Wolf School. The four evaluations are listed in the Settlement

Agreement as: "educational, cognitive, speech and language[,] and

occupational therapy." In return, Joanna S. relinquished her

request for the other evaluations she had demanded in her

complaint. As we will see, however, there is a dispute about just

how much she actually gave up.

Following the settlement, in late April of 2012, the

School Committee performed the four evaluations of P.J. the School

Committee had agreed to undertake. P.J. then enrolled in the Wolf

School in September of 2012. On October 9, 2012, however, at a

meeting with P.J.'s teachers and representatives of the School

Committee, Joanna S. demanded ten additional evaluations of P.J. 

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These newly requested evaluations included independent versions of

each of the four evaluations the School Committee had performed in

April of 2012. Joanna S. reiterated this demand for ten additional

evaluations in a letter to the School Committee dated October 22,

2012.

The School Committee decided not to comply with Joanna

S.'s demands for more evaluations. The School Committee instead

chose to file a "due process complaint" of its own. See id.

§ 300.502(b)(2)(i). The School Committee filed that due process

complaint on October 30, 2012.1 In the complaint, the School

1

 A school district has fifteen days to respond to a parent's

demand for an independent evaluation. 21-2-54 R.I. Code R.

§ 300.502(b)(2). Within that time, the school district must either

agree to provide the independent evaluation or "[f]ile a due

process complaint to request a hearing to show that its evaluation

is appropriate." Id. § 300.502(b)(2). Joanna S. contends the

School Committee failed to file this due process complaint on time. 

She says the School Committee refused to respond to her oral demand

for independent evaluations and instead insisted she demand them in

writing. Joanna S. relies on regulatory guidance she says shows

school districts may not require parents to provide written notice

of their demand for an independent evaluation under a federal

regulation then codified at 34 C.F.R. § 300.503(b), which a

materially identical Rhode Island regulation that is codified at

21-2-54 R.I. Code R. § 300.502(b) goes on to implement as a matter

of Rhode Island law. See Letter to Imber, Office of Special Educ.

Programs (Aug. 18, 1992); Letter to Thorne, Office of Special Educ.

Programs (Feb. 5, 1990). In consequence, Joanna S. argues the

School Committee filed its due process complaint six days after the

expiration of the regulation's fifteen-day period for such a

filing, as she calculates that period from the time she made her

oral request rather than from the time she made her written

request. 21-2-54 R.I. Code R. § 300.502(b)(2). But even if the

clock started when Joanna S. says it did, the procedural deadline

at issue is not always a hard and fast one. Under Rhode Island's

regulations, a parent may not receive substantive relief based on

a procedural violation by a school district unless the violation

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Committee argued the evaluations it had performed were "appropriate

and that no further evaluations [were] needed at [that] time." 

In the administrative proceeding that followed, the

Hearing Officer appointed by the State of Rhode Island ruled

against the School Committee. The Hearing Officer ruled some of

the School Committee's evaluations of P.J. in April had not been

"appropriate." The Hearing Officer thus ordered the School

Committee to pay for one of the two evaluations at issue in this

appeal (the occupational therapy evaluation), and to pay for, or

perhaps instead to perform, the other (the psychoeducational

evaluation).

The School Committee responded with a suit in federal

District Court in Rhode Island. The School Committee's suit rested

on a provision of IDEA that allows "any party aggrieved by the

findings and decision" of an IDEA hearing officer to "bring a civil

action . . . in a district court of the United States." 20 U.S.C.

"[i]mpeded the child's right" to a free and appropriate public

education, "[s]ignificantly impaired the parent's opportunity to

participate in the decisionmaking process regarding" the child's

education, or "[c]aused a deprivation of educational benefit." Id.

§ 300.513(a)(2). Despite conceding the applicability of that rule,

Joanna S. does not explain how the very slight delay involved here

-- six days at the most -- had the required prejudicial effect. In

fact, much of the responsibility for the delay seems to lie with

Joanna S.: the School Committee sent her a letter requesting

clarification the day after her purported oral demand, and Joanna

S. did not respond until twelve days later . The School Committee

then filed its due process complaint just a few days after it

received Joanna S.'s responsive letter. We thus conclude the

administrative decision was properly decided on "substantive

grounds." Id. § 300.513(a).

-8-
§ 1415(i)(2)(A); D.R. ex rel. M.R. v. E. Brunswick Bd. of Educ.,

109 F.3d 896, 898 (3d Cir. 1997) (citing the prior version of

§ 1415(i)(2)(A), then codified at 20 U.S.C. § 1415(e) (1996)). 

Acting on cross motions for summary judgment, the

District Court found the administrative record did not support the

Hearing Officer's order that the School Committee fund an

independent occupational therapy evaluation of P.J. The District

Court also found the Settlement Agreement released any claim to a

psychoeducational evaluation of P.J. that Joanna S. might have had. 

The District Court thus granted the School Committee's motion for

summary judgment and denied Joanna S.'s. Joanna S. now appeals the

District Court's decision.

II.

The two evaluations at issue -- occupational therapy and

psychoeducational -- present distinct issues. Like the District

Court and the Hearing Officer, we consider them separately,

although our standard of review is the same for both. 

We decide legal issues de novo, and we review the

District Court's factual findings only for clear error. González

v. P.R. Dep't of Educ., 254 F.3d 350, 352 (1st Cir. 2001). For

mixed questions of law and fact, we apply a "degree-of-deference

continuum" depending on "to what extent a particular determination

is law– or fact– dominated." Lessard v. Wilton-Lyndeborough Coop.

Sch. Dist., 518 F.3d 18, 24 (1st Cir. 2008). Unlike the way we

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review agency decisions under the Administrative Procedure Act,

see, e.g., Puerto Rico v. United States, 490 F.3d 50, 60-61 (1st

Cir. 2007), we defer to the District Court's factual findings, not

to the state-appointed administrative officer's. Lessard, 518 F.3d

at 24.

Still, we must ensure the District Court gave "due

deference" to that officer's superior educational expertise. Id.;

Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 52-53 (1st Cir.

1992). We have characterized the appropriate level of review by

District Courts as "involved oversight," a standard which "falls

somewhere between the highly deferential clear-error standard and

the non-deferential de novo standard." Sebastian M. v. King

Phillip Reg'l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012)(quoting

D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35-36 (1st Cir.

2012)). Moreover, we have said before that, in cases of this sort,

summary judgment motions are "simply a vehicle" for providing

review of the underlying administrative ruling, and that is the

case here.2 See Sebastian M., 685 F.3d at 85.

2 No party disputes that the parties' cross-motions for

summary judgement "essentially" asked the District Court to

"conduct[] a bench trial based on a stipulated record." Sebastian

M., 685 F.3d at 85 (quoting Ojai Unified Sch. Dist. v. Jackson, 4

F.3d 1467, 1472 (9th Cir. 1993)).

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III.

We start with the occupational therapy evaluation. The

Settlement Agreement identified this evaluation as one of the four

the School Committee would perform. The School Committee then

performed it. We thus set the Agreement to one side and focus on

the only point that is in dispute about this evaluation -- whether

the record at the administrative hearing shows the occupational

therapy evaluation the School Committee did perform was

"appropriate" and thus that the School Committee did not need to

pay for an independent one. 21-2-54 R.I. Code R. § 300.502(b)(2).

Joanna S. argues the April 2012 occupational therapy

evaluation was not "appropriate." See id. § 300.304(b), (c). She

contends the School Committee did not consider "information

provided by the parent," id. § 300.304(b)(1), did not use "a

variety of assessment tools and strategies," id., did not ensure

the tests that comprised the evaluation were administered by

"trained and knowledgeable personnel," id. § 300.304(c)(1)(iv), and

did not tailor those component tests "to assess specific areas of

educational need," id. § 300.304(c)(2). She also contends the

School Committee did not ensure its overall assessment "accurately

reflect[ed] the child's aptitude or achievement level . . . rather

than reflecting the child's impaired sensory . . . skills." Id.

§ 300.304(c)(3).

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The Hearing Officer agreed with Joanna S. that the

occupational therapy evaluation was not "sufficiently comprehensive

to identify all of the Student's needs in this area." She found

several flaws in the School Committee's evaluation. The Hearing

Officer thus ordered the School Committee to fund the independent

occupational therapy evaluation Joanna S. now seeks.

In reversing the Hearing Officer's order, the District

Court rejected three key factual findings the Hearing Officer had

made. Those three findings addressed alleged problems with the

School Committee's occupational therapy evaluation. We find

nothing in the record to indicate the District Court clearly erred

in rejecting those three findings. See Lessard, 518 F.3d at 24. 

We also see nothing in the record to suggest the District Court

erred in ruling that, without those three challenged findings, the

School Committee's occupational therapy evaluation of P.J. was

"appropriate." For that reason, we affirm the District Court's

decision.

The first of the disputed Hearing Officer findings

concerned whether the evaluator considered information about the

child that the parent had provided. See 21-2-54 R.I. Code R.

§ 300.304(b)(1). The Hearing Officer found the evaluator failed to

provide such consideration, because the evaluator was not aware of

Joanna S.'s concerns about her son's sensory processing abilities. 

But the administrative record well supports the District Court's

-12-
conclusion that the evaluator was aware of Joanna S.'s concerns

about her son's sensory processing abilities. The District Court

noted the evaluator testified she was told, in advance of the

evaluation, about Joanna S.'s sensory processing concerns, and

there was no contrary testimony. Moreover, the District Court

correctly noted the evaluator's report recited "sensory processing

concerns" as a reason for the performance of the occupational

therapy evaluation.

The record similarly supports the District Court's

rejection of the second of the Hearing Officer's disputed findings

-- namely, the Hearing Officer's determination that P.J.'s "lack of

effort" on some of the tasks undermined the evaluation as a whole. 

The Hearing Officer relied on the evaluator's statement that "the

results should be viewed with caution" because of P.J.'s lack of

effort during the test. But the evaluator raised that concern with

respect to two sub-tests -- handwriting and drawing geometric

shapes. The evaluator did not, as the District Court observed,

call the evaluation as a whole into question.

In addition, the record shows the evaluator also

testified, without contradiction, that a subsequent evaluation

performed by the Wolf School allayed any concerns about the

student's handwriting. What's more, the educators at the Wolf

School, including the Wolf School's occupational therapist,

testified the School Committee's tests, combined with their own

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formal and informal assessments, were adequate. And, as the

District Court noted, the Hearing Officer made no adverse

credibility finding with respect to the Wolf School's occupational

therapist.

We recognize Joanna S. argues the District Court erred in

relying on the Wolf School evaluations. She contends the Wolf

School evaluations were impermissible "supplement[al]" evaluations. 

She cites regulatory guidance from the U.S. Department of Education

to support her position. See Letter to Gray, Office of Special

Educ. Programs (Oct. 5, 1988).

But the guidance addresses a different issue. The

guidance responds to the concern that a school district, when faced

with a parental request to pay for independent evaluations, will

resort to "supplemental" evaluations as a delaying tactic. The

worry is that school districts will put off paying for a test

performed independently by adding on new tests to correct the

claimed flaws in the initial one they performed.

But there is no evidence that is what happened here. The

record does not show the Wolf School performed its evaluations in

response to Joanna S.'s complaint for an independent evaluation,

let alone that it performed them to delay payment for an

independent one. Instead, it appears from the record that the Wolf

School performed the evaluations in the course of educating P.J.

and long before Joanna S. requested an independent evaluation. The

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record thus provides no support for concluding these evaluations

were "supplemental" in the potentially problematic sense the

guidance addresses. And the District Court did nothing improper to

the extent it treated the Wolf School evaluations as if they were

part of the occupational therapy evaluation the School Committee

performed. The regulations make clear school districts may use "a

variety of assessment tools and strategies" to make up an

"evaluation"; they need not rely on just one test. 21-2-54 R.I.

Code R. § 300.304(b)(1).

Finally, we conclude the record supports the District

Court's rejection of the Hearing Officer's third disputed finding:

that although the School Committee's evaluation found P.J.'s

sensory processing abilities "typical," the evaluation report never

defined the word "typical." As the District Court observed, the

evaluator's occupational therapy report does define "Typical

Performance."

The report explains that scores marked as "Typical

Performance" "indicate typical sensory processing abilities." And

the record supports the conclusion that such an explanation, in

context, is meaningful. The report contrasts "Typical

Performance," the highest score, with both "Probable Difference,"

which "indicate[s] questionable areas of sensory processing

abilities," and "Definite Difference," which "indicate[s] definite

sensory processing problems." "Typical," then, means something

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quite intelligible: abilities that, for the child's age, are

neither questionable nor definitely problematic. Cf. Am. Heritage

Dictionary 1310 (2d Coll. Ed. 1991) (defining "typical" to mean

"[e]xhibiting the traits or characteristics peculiar to its kind,

class, or group; representative of a whole group"). 

Without those rejected findings, we are left only with

the Hearing Officer's otherwise unchallenged finding that a

"qualified, licensed and experienced" evaluator conducted the

occupational therapy evaluation using "widely used standardized

test[s]," which, the record goes on to show, produced results

P.J.'s educators found adequate (together with their own

assessments) to determine his occupational therapy needs. We thus

affirm the District Court's order finding the occupational therapy

evaluation the School Committee performed to have been

"appropriate."

IV.

That brings us to the dispute over the psychoeducational

evaluation. This evaluation, unlike the occupational therapy

evaluation, was not one of the four evaluations the School

Committee agreed to perform in the April 2012 Settlement Agreement. 

For that reason, the School Committee contends, and the District

Court held, the Settlement Agreement relieves the School Committee

from having to perform or pay for any such evaluation. That is so,

the School Committee argues, because Joanna S. gave up her right to

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seek evaluations beyond the four specified in that Agreement when

she signed it. We agree, but the route to that conclusion is a

somewhat winding one.

A.

We first have to consider our power to take account of

the Settlement Agreement at all. Joanna S. argues we may not. Her

contention focuses on two subsections of IDEA that set up a

"mediation process" and a "resolution process" to resolve

disagreements between parents and school districts. 20 U.S.C.

§ 1415(e), (f). Courts have interpreted these subsections to

include a grant of subject-matter jurisdiction for federal courts

to decide suits to enforce settlement agreements reached during

those processes. See, e.g., El Paso Indep. Sch. Dist. v. Richard

R. ex rel. R.R., 591 F.3d 417, 427 (5th Cir. 2009) (citing 20

U.S.C. § 1415(f)). Joanna S. notes that nothing in the record

conclusively shows the Settlement Agreement resulted from these

statutory processes. And so, she argues, we cannot rely on the

grant of jurisdiction in those subsections to consider the

Settlement Agreement, which she characterizes as merely a state-law

contract.

But our authority to hear this case does not depend on 20

U.S.C. § 1415(e) or (f). This is not an independent action to

enforce an IDEA settlement agreement. Rather, the District Court's

authority in this case came from a separate provision,

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§ 1415(i)(2)(A). That provision authorizes a school district, when

it is the "party aggrieved," to challenge an IDEA hearing officer

decision in a federal district court. We have appellate

jurisdiction over that same suit under the general grant of

jurisdiction to the circuit courts to review the decisions of

federal district courts. See 28 U.S.C. § 1291. And Joanna S.'s

underlying assertion of a federal right to evaluations under IDEA

supplies the "federal ingredient" making those statutory grants

constitutional in this case. See Merrell Dow Pharms. Inc. v.

Thompson, 478 U.S. 804, 807 (1986); Osborn v. Bank of United

States, 22 U.S. (9 Wheat.) 738, 823 (1824).

Nor is there any bar to our considering the Settlement

Agreement in the course of our review. Federal courts regularly

give effect to state-law settlement agreements in federal-question

cases. See, e.g., Great Clips, Inc. v. Hair Cuttery of Greater

Bos., L.L.C., 591 F.3d 32, 35 (1st Cir. 2010) (relying on a statelaw contract settling a trademark dispute); D.R. ex rel. M.R. v. E.

Brunswick Bd. of Educ., 109 F.3d 896, 898 (3d Cir. 1997) (relying

on a state-law contract settling an IDEA claim); see also Osborn,

22 U.S. (9 Wheat.) at 822 (explaining there is no constitutional

rule in federal-question cases that "the judicial power . . .

extend[s] . . . to those parts of cases only which present the

particular question involving" federal law). And, as IDEA plainly

permits settlements of disputes within its scope, we see no reason

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to read IDEA to require a different result here. Cf. Mayhew v.

Burwell, ___ F.3d ____, No. 14-1300, 2014 WL 6224938, at *3 n.4

(1st Cir. Nov. 17, 2014) (exercising jurisdiction over

constitutional arguments presented for the first time on appeal

from an agency decision, to avoid the "nonsensical" result of

"requir[ing] a bifurcated challenge" to administrative action).3

B.

That we may consider the effect of the Settlement

Agreement does not mean it bars Joanna S.'s request regarding the

psychoeducational evaluation. The parties, following the District

Court, frame the issue of the Agreement's effect as one within the

domain of "res judicata." But we have previously remarked that

"[r]es judicata is a doubtful label" to use in the context of a

settlement of an administrative proceeding. Martinez-Vélez v. Rey3

 We need not address the separate issue whether the Hearing

Officer in the course of performing her statutory duties had the

authority to consider the Settlement Agreement as a defense, a

question that seems to have divided lower courts. Compare J.K. v.

Council Rock Sch. Dist., 833 F. Supp. 2d 436, 450 (E.D. Pa. 2011)

(no such authority) with, e.g., D.B.A. ex rel. Snerlling v. Special

Sch. Dist. No. 1, No. 10-1045, 2010 WL 5300946, at *4 (D. Minn.

Dec. 20, 2010) (authority under at least some circumstances). Even

if the Hearing Officer lacked such authority, it would not affect

the authority of a federal court to conduct the review Congress

authorized. Cf. Mayhew, 2014 WL 6224938, at *3 n.4; Elgin v. Dep't

of Treasury, 132 S. Ct. 2126, 2137 (2012) (explaining that courts

reviewing administrative decisions have jurisdiction to consider

even issues the administrative body "professed [a] lack of

authority" to consider).

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Hernández, 506 F.3d 32, 45 (1st Cir. 2007).4 In this case as in

that one, however, "the label does not matter; the question is the

scope" of the Settlement Agreement. Id. To answer that question,

we must look at the Agreement more closely.

1.

Joanna S. contends the Settlement Agreement, by its plain

terms, applies to her claims under IDEA only "through the date of

[that] Agreement." And since her request for the additional

evaluation at issue (the psychoeducational one) post-dates the

Agreement, Joanna S. contends the settlement gives the School

Committee no defense against the Hearing Officer's order.

But Joanna S. consented in that Agreement to only four

evaluations -- and thus to the release of her claims for other

evaluations, including even her claims for the additional four she

had previously demanded in the due process complaint the Settlement

Agreement resolved. That consent would be meaningless if she could

4

 Our cases have recognized and differentiated between two

possible defenses arising from a settlement agreement: "res

judicata" and "release." See Davignon v. Clemmey, 322 F.3d 1, 17

(1st Cir 2003). The defenses are "separate and distinct," id.

(quoting Nottingham Partners v. Trans-Lux Corp., 925 F.2d 29, 31-32

(1st Cir. 1991)), and "res judicata," unlike "release," requires

entry of judgment. See Reppert v. Marvin Lumber & Cedar Co., 359

F.3d 53, 56 (1st Cir. 2004). "Whether and when res judicata

operates in administrative proceedings is complicated; so, too, the

question when a settlement of administrative proceeding[s] has res

judicata effect." Martinez-Vélez, 506 F.3d at 45 n.9. As in

Martinez-Vélez, there is no need for us to address those

"complicated" questions here, because whether under res judicata or

release, the effect of the Settlement Agreement turns on its

language's "scope." Id. at 45.

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nonetheless turn around the next day and demand the foregone

evaluations anew. We thus cannot accept her preferred reading of

the Agreement, as we find it difficult to suppose the parties

intended such a meaningless outcome of their negotiations. See

AccuSoft Corp. v. Palo, 237 F.3d 31, 40 (1st Cir. 2001) (explaining

that intent of the parties is one factor in interpreting a

settlement agreement).

In its brief, the School Committee took the categorical

position that the Agreement resolved Joanna S.'s demands for

evaluations at least through the end of the 2012-2013 school year. 

But the School Committee abandoned that position at oral argument. 

It instead favored a narrower focus on changed circumstances. We

agree with the School Committee's revised approach. The Agreement

is best read to release any right to additional evaluations that

Joanna S. may have had, except when her request for one arises from

a change in the conditions that prevailed at the time she signed

the Agreement.

This interpretation tracks the Agreement's text. The

Agreement waived "any and all causes of action . . . [of] which

[Joanna S.] kn[ew] or should have known" when she signed the

Agreement. Because unforeseeable events may give rise to

unforeseeable grounds for complaint, the Agreement may comfortably

be read to preserve requests premised on new circumstances that may

arise. But allowing for that possibility still gives content to

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the Agreement in a way Joanna S.'s proposed reading would not. On

this reading, Joanna S. still faces a hurdle when she makes postAgreement requests for evaluations not among those agreed to in the

settlement. Such requests, to survive the settlement, must rest on

conditions that arose after she entered into that Agreement. 

This reading of the Agreement also accords with the

approach the Third Circuit took in construing a similar settlement

agreement. See E. Brunswick Bd. of Educ., 109 F.3d at 900-01. 

There, the court held an IDEA settlement could preclude a parent

from bringing future IDEA claims -- unless, that is, those claims

were based on changed circumstances. That conclusion reflects both

the role settlements may play in resolving IDEA disputes and the

legitimate concern with allowing IDEA settlements to bargain away

-- potentially for all time and without regard to the change in

conditions that may arise in the course of a child's development --

the statutory right to a free appropriate public education. 

2.

So understood, the effect of the Agreement is clear. It

bars the Hearing Officer's order regarding the psychoeducational

evaluation unless that order may be said to rest on conditions that

changed since the time of settlement in April of 2012. For reasons

we will explain, the record does not reveal any sufficient change

in circumstances. As a result, the order cannot overcome the bar

posed by the Settlement Agreement, whether we characterize it in

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the way Joanna S. does (as requiring the School Committee to fund

an independent psychoeducational evaluation) or as the District

Court did (as requiring the School Committee to perform a

psychoeducational evaluation itself). 

We reach this conclusion aware the District Court did not

focus on changed circumstances, as neither party framed the issue

that way below. But we may affirm that court's summary-judgment

decision on any basis apparent from the record. See CMI Capital

Mkt. Inv., LLC v. González-Toro, 520 F.3d 58, 65 (1st Cir. 2008). 

And nothing in the Hearing Officer's decision suggests the order

rests on a new, post-settlement development. Rather, the Hearing

Officer offered only pre–April 2012 justifications for her order. 

She explained that "[t]he Parent has been requesting independent

evaluations for some time, requests that have been considered, but

with no agreement to do them," and she noted in particular "a

discussion about obtaining a psychoneurological evaluation

apparently, which was rejected in the Settlement Agreement." 

Nor does Joanna S. identify sufficient changed conditions

in her brief. Joanna S. argues the order may be supported because

of P.J.'s "past and present behavior presentations," but she does

not identify any changes in P.J.'s behavioral presentations that

occurred after the settlement. Joanna S. also refers in her brief

to the need to identify whether P.J. has dyslexia, but she claims

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she was already concerned about dyslexia in April of 2012 when she

signed the Settlement Agreement.5

At oral argument, Joanna S.'s counsel did assert for the

first time that P.J.'s extended absence before he began attending

the Wolf School constituted a changed circumstance -- as he stayed

out of school after the settlement until the start of the next

school year. But Joanna S.'s counsel did not explain how P.J.'s

continued absence from school -- the start of which predated the

Settlement Agreement by at least a month -- supports that

conclusory contention. Nor did Joanna S. argue in her brief that

this absence established a changed circumstance. Such a bare

assertion of changed conditions, raised for the first time at oral

argument, does not suffice to warrant reversal of the District

Court's judgment, given Joanna S.'s failure to identify -- to the

District Court or to us -- any facts in the administrative record

showing a material change in conditions.

Thus, like the District Court, but for a slightly

different reason, we conclude the Settlement Agreement relieves the

School Committee from having to pay for, or conduct, the

5

 Those arguments were not ones offered by the Hearing

Officer. The parties do not brief whether Security & Exchange

Commission v. Chenery Corp., 318 U.S. 80 (1943), or possibly

doctrines of waiver or forfeiture, would preclude us from

reinstating the state Hearing Officer's order on an alternate

ground from the one she gave, and we need not address them here. 

Cf. Christopher S. ex rel. Rita S. v. Stanislaus Cnty. Office of

Educ., 384 F.3d 1205, 1212 n.5 (9th Cir. 2004) (invoking Chenery in

the IDEA context).

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psychoeducational evaluation the Hearing Officer ordered. The

extent to which conditions must change, as they often do as

children grow and develop, before a release no longer bars a

requested evaluation is an issue we do not address in this appeal.

3.

In an apparent effort to avoid this result, Joanna S.

argues the Hearing Officer ordered the psychoeducational evaluation

"sua sponte," rather than at Joanna S.'s request. She suggests

this understanding of the Hearing Officer's action should protect

it from being overturned, presumably because she believes the

order's sua sponte nature removes it from the scope of the

settlement. 

But even if the Settlement Agreement would for some

reason not bar a sua sponte order, nothing in the record suggests

this order was in fact issued sua sponte. A "sua sponte" order is

one issued "[w]ithout prompting or suggestion." Black's Law

Dictionary 1650 (10th Ed. 2014). The Hearing Officer did not

characterize the order in that way. Rather, she based her order on

Joanna S.'s past "requests" and "concerns." Moreover, the content

of the psychoeducational evaluation the Hearing Officer ordered --

"reading, writing, math, sensory difficulty, written language,

executive function, behavior, independent functioning, difficulty

with balance and gross motor skills, and assistive technology if

deemed necessary" -- appears directly responsive to the kind of

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evaluation Joanna S. sought in the letter that gave rise to the

School Committee's due process complaint.6 In addition, the

Hearing Officer never mentioned the sole provision Joanna S. claims

authorized the Hearing Officer to order the psychoeducational

evaluation sua sponte: 21-2-54 R.I. Code R. § 300.502(d).7 We

therefore cannot accept Joanna S.'s argument that the Hearing

Officer intended to order relief Joanna S. did not request. And,

because we conclude the order was not issued sua sponte, we need

not address what the effect of the Settlement Agreement on a sua

sponte order would have been. 

V.

One issue remains -- Joanna S.'s request for attorneys'

fees. IDEA provides that "the court, in its discretion, may award

reasonable attorneys' fees" to a prevailing party. 20 U.S.C.

§ 1415(i)(3)(B)(i). Even though we have affirmed the District

6 In her letter, Joanna S. had demanded an "achievement

evaluation," a "psychological evaluation," a "speech and language

evaluation," an "OT [occupational therapy] evaluation," a

"comprehensive neuropsychological evaluation," a "comprehensive

psychiatric evaluation," a "comprehensive reading evaluation," a

"comprehensive math evaluation," a "comprehensive assistive

technology evaluation," and a "comprehensive PT [physical therapy]

evaluation." 

7

 That section provides: "If a hearing officer requests an

independent educational evaluation as part of a hearing on a due

process complaint, the cost of the evaluation must be at public

expense." 21-2-54 R.I. Code R. § 300.502(d). It is not at all

clear that this section authorizes a hearing officer to order an

evaluation -- by its terms it seems to address only cost, not

authority -- but we need not address this section's scope here

because the Hearing Officer did not rely on it. 

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Court, the School Committee left one aspect of the Hearing

Officer's decision unchallenged. In addition to ordering the

School Committee to act with respect to an occupational therapy

evaluation and a psychoeducational evaluation, the Hearing Officer

also found the School Committee's "educational" evaluation was not

appropriate. Because the School Committee chose not to challenge

that finding, Joanna S. is a prevailing party with respect to that

one portion of her claim and is thus eligible for fees. See A.R.

ex. rel. R.V. v. N.Y. City Dep't of Educ., 407 F.3d 65, 75 (2d Cir.

2005) ("[A] plaintiff who receives [hearing officer]-ordered relief

on the merits in an IDEA administrative proceeding is a 'prevailing

party.' He or she may therefore be entitled to payment of

attorneys' fees under IDEA's fee-shifting provisions."). We remand

so the District Court may consider in the first instance whether

and to what extent attorneys' fees should be ordered. 

VI.

As we have explained, evaluations are crucial to IDEA. 

They help ensure children receive the free appropriate public

education Congress envisioned. It is thus not surprising that

disputes arise over IDEA evaluations. But in addition to providing

an administrative process for addressing such disputes, Congress

also expressly allowed parties to resolve them through settlements. 

And when parties do so, the settlements must be given appropriate

effect. For the reasons given above, we affirm the District

-27-
Court's reversal of the Hearing Officer's orders regarding the

occupational therapy and psychoeducational evaluations. We also

remand for the District Court to consider whether Joanna S. is

entitled to attorneys' fees based on her success in securing the

Hearing Officer's order for an independent educational evaluation.

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