P. et al v. PENNSYLVANIA DEPARTMENT OF EDUCATION

Filing 24

MEMORANDUM AND OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 6/15/17. 6/15/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SANTINO P., by and through his Parent,
JOSEPH P.,
CIVIL ACTION
No. 16-5230

Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
EDUCATION,
Defendant.
PAPPERT, J.

June 15, 2017
MEMORANDUM

This case requires the Court to decide whether a parent who prevailed in a due
process hearing against a public charter school can recover attorneys’ fees from the
Pennsylvania Department of Education when the Department was not a party to that
hearing and separately satisfied its obligations under the Individuals with Disabilities
Education Act (“IDEA”). The parties stipulated to all facts and filed cross motions for
summary judgment. The Court grants the Department’s motion for two related
reasons: The Plaintiff did not prevail against the Department at the due process
hearing and Congress declined to make fee shifting integral to a free appropriate public
education under IDEA.
I.
A.
IDEA requires states receiving federal funding to make a “free appropriate
public education available to all children with disabilities.” 20 U.S.C. § 1412(a)(1)(A);
see also Endrew F. ex rel. Joseph F. v. Douglas Sch. Dist., 137 S. Ct. 988, 993 (2017);
1

D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 556 (3d Cir. 2010). A free appropriate
public education “includes both ‘special education’ and ‘related services.’” Endrew F.,
137 S. Ct. at 994 (citing 20 U.S.C. §§ 1401(26), (29)). IDEA mandates instruction that
is “specially . . . designed to meet the unique needs of the handicapped child, supported
by such services as are necessary to permit the child to benefit from the instruction.”
D.S., 602 F.3d at 556 (quotation and citation omitted); see also 20 U.S.C. § 1401(9).
Under IDEA, states “must confer an education providing ‘significant learning’ and
‘meaningful benefit’ to the child.” Id. (quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d
238, 247 (3d Cir. 1999)). IDEA thus “ensures that students with special education
needs receive the type of education that will ‘prepare them for further education,
employment, and independent living.’” Ferren C. v. Sch. Dist. of Phila., 612 F.3d 712,
717 (3d Cir. 2010) (quoting 20 U.S.C. § 1400(d)(1)(A)).
States seeking funding under IDEA must submit a plan of compliance to the
Secretary of Education. 20 U.S.C. §§ 1412–14. IDEA then gives the State Education
Agency (“SEA”)—i.e., the state department of education, id. § 1401(32)—the
responsibility of apportioning the funds to Local Education Agencies (“LEAs”)—i.e.
school districts or public charter schools, id. § 1401(19)(A). See id. § 1413(a). “The SEA
is responsible for ensuring that LEAs comply with the mandates of the IDEA in
providing educational services to those eligible students.” Charlene R. v. Solomon
Charter Sch., 63 F. Supp. 3d 510, 513 (E.D. Pa. 2014) (citing 20 U.S.C.
§ 1412(a)(11)(A)). The LEA is the entity that actually provides services to children
under IDEA. Id.; see also 20 U.S.C. § 1414(d)(1)(A). It is the SEA, however, that
“retains primary responsibility to ensure that all children with disabilities receive the

2

education that is their right under the IDEA.” Charlene R., 63 F. Supp. at 513; see 20
U.S.C. §§ 1412(a)(11)(A), 1413(g)(1); Kruelle v. New Castle Cty. Sch. Dist., 642 F.2d 687,
696 (3d Cir. 1981); see also Pachl v. Seagren, 453 F.3d 1064, 1070 (8th Cir. 2006); St.
Tammany Parish Sch. Bd. v. State of Louisiana, 142 F.3d 776, 784 (5th Cir. 1998);
Gadsby v. Grasmick, 109 F.3d 940, 943 (4th Cir. 1997).
B.
IDEA requires states to establish extensive safeguards to ensure all disabled
children receive a free appropriate public education. See 20 U.S.C. § 1415(a). Three
primary mechanisms exist to settle such disputes: a due process hearing, a state
complaint and formal mediation.
A due process hearing provides an “opportunity for any party to present a
complaint . . . with respect to any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a free appropriate public
education to such child.” Id. § 1415(b)(6)(A). “In Pennsylvania, the Commonwealth’s
Office of Dispute Resolution (“ODR”) is responsible for conducting IDEA due process
hearings.” H.E. v. Palmer, 220 F. Supp. 3d 574, 577 (E.D. Pa. 2016) (citing 22 Pa. Code
§ 14.162). Any party “aggrieved by” the hearing officer’s “findings and decision” may
seek review of the decision by filing a civil action in state court or in a district court of
the United States. 20 U.S.C. § 1415(i)(2)(A).
Alternatively, parents may file a complaint directly with the SEA. “Upon receipt
of such a complaint, the SEA must evaluate the complaint and carry out, as necessary,
an independent investigation before reaching a final decision containing findings of fact
and conclusions.” R.V. v. Rivera, 220 F. Supp. 3d 588, 591 (E.D. Pa. 2016) (citing 34

3

C.F.R. §§ 300.151–.153)). The due process hearing and state complaint process are
parallel proceedings, “either of which a parent may opt to pursue in the first instance,”
however, “the due process complaint procedure takes priority over the state complaint
procedure.” Id. (citing 34 C.F.R. § 300.152(c)(1) (explaining that an SEA must stay its
investigation when a due process complaint is filed)).
Finally, IDEA provides for formal mediation. States must “ensure that
procedures are established and implemented to allow parties . . . to resolve such
disputes through a mediation process.” 20 U.S.C. § 1415(e)(1). This process must be
voluntary, cannot be “used to deny or delay a parent’s right to a due process hearing . . .
or to deny any other rights” and must be “conducted by a qualified and impartial
mediator who is trained in effective mediation techniques.” Id. § 1415(e)(2)(A).
C.
Separate from the procedural protections described above, IDEA allows
prevailing parties the opportunity to recover attorneys’ fees. See id. § 1415(i)(3). That
provision provides that in “any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys’ fees as part of the costs . . . to
a prevailing party who is the parent of a child with a disability.”1
Notably, § 1415(i)(2), which provides for court review of a hearing officer’s
decision, and § 1415(i)(3), providing for fee shifting, “contain separate jurisdictional
grants, and the weight of authority holds that they create two distinct causes of action.”
D.G. v. New Caney Indep. Sch. Dist., 806 F.3d 310, 317 (5th Cir. 2015); see Zipperer v.
IDEA also provides for fee shifting to SEAs or LEAs who prevail when the opposing party
filed a complaint or subsequent cause of action that was “frivolous, unreasonable, or without
foundation” or if the complaint or subsequent cause of action was “presented for any improper
purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of
litigation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II)–(III).
1

4

Sch. Bd., 111 F.3d 847, 851 (11th Cir. 1997); Moore v. District of Columbia, 907 F.2d
165, 171 (D.C. Cir. 1990); see also B.K. Toms River Bd. of Educ., 998 F. Supp. 462, 471
(D.N.J. 1998) (citing with approval Zipperer, 111 F.3d at 851). But see King v. Floyd
Cty. Bd. of Educ., 228 F.3d 622, 626 n.4 (6th Cir. 2000)
Under § 1415(i)(2), parties “aggrieved by the findings and decision made” by the
hearing officer may bring a civil action within “90 days from the date of the decision of
the hearing officer.” 20 U.S.C. § 1415(i)(2)(B). In contrast, “prevailing parties” may
bring a civil action under § 1415(i)(3) to recover reasonable attorneys’ fees. Id.
§ 1415(i)(3)(B). Courts, recognizing these two distinct causes of action, have also held
that a different statute of limitation applies to actions brought under § 1415(i)(3).2 See,
e.g., D.G., 806 F.3d at 317; Zipperer, 111 F.3d at 851.
II.
The facts of this case are unique. Santino is a student eligible for special
education services under IDEA. (Stipulated Facts ¶ 5, ECF No. 17.) In October 2013,
Santino enrolled in the eighth grade at the Walter D. Palmer Leadership and Learning
Charter School, an LEA that received federal financial assistance under IDEA. (Id.
The Department did not raise a statute of limitations argument in its motion for summary
judgment. At oral argument, the Department tacitly conceded that the ninety-day limitations period
of 20 U.S.C. § 1415(i)(2)(B) does not apply to actions brought under 20 U.S.C. § 1415(i)(3) and
explained that it did not brief the statute of limitations issue because the law was not clear. (Tr. of
Hr’g, at 13:1–6). The Court agrees that the ninety-day limitations period does not apply here. The
Third Circuit has not decided this issue, but a circuit split has developed over whether IDEA fee
shifting should have a long or short statute of limitations. Compare Meridian Joint Sch. Dist., 792
F.3d 1054, 1064 n.9 (9th Cir. 2015) (finding three year statute of limitations likely applied to
attorneys’ fee claims under IDEA); Zipperer v. Sch. Bd., 111 F.3d 847, 851 (11th Cir. 1997) (adopting
a four year statute of limitations applied to attorneys’ fee claims under IDEA) with King v. Floyd
Cty. Bd. of Educ., 228 F.3d 622, 626 n.4 (6th Cir. 2000) (holding that a thirty day statute of
limitations applied to attorneys’ fee claims under IDEA); Powers v. Ind. Dep’t of Educ., 61 F.3d 552,
556 (7th Cir. 1995) (same). Two district courts in this circuit have concluded that the limitations
period is at least two years. See Murphy v. Girard Sch. Dist., 134 F. Supp. 2d 431, 436 (W.D. Pa.
1999); B.K. v. Toms River Bd. of Educ., 998 F. Supp. 462, 473 (D.N.J. 1998). Because no party
briefed this issue and because the Court could find no authority to suggest the limitations period
here is jurisdictional, the Court considers the issue waived by the Department.
2

5

¶¶ 9–11.) His father Joseph requested that Santino receive an independent educational
evaluation to determine his current level of functioning. (Id. ¶¶ 11, 13.) In March
2014, Palmer approved the request for an evaluation at public expense and in April
2014, Palmer’s CEO David Weathington acknowledged in writing that it was Palmer’s
obligation to pay for Santino’s evaluation. (Id. ¶¶ 11, 13 & 14.) Santino received an
independent neuropsychological evaluation from Dr. Kara Schmidt in August 2014, (id.
¶ 15), and Dr. Schmidt submitted an invoice to Palmer totaling $4,000, (id. ¶ 16).
Despite agreeing in advance to pay for this evaluation, Palmer ultimately
refused to do so. (Id. ¶¶ 16, 17.) Joseph filed a due process complaint against Palmer
on December 4, 2014 seeking full payment for the evaluation. (Id. ¶ 17.) Later that
month, after all parties submitted filings but before the hearing officer entered a
decision, Palmer permanently closed due to financial difficulties. (Id. ¶ 23.) On
January 12, 2015, the hearing officer ruled in Joseph’s favor, ordered Palmer to pay
$4,000 and declared Joseph the prevailing party. (Id. ¶ 22.) Palmer, now closed due to
insolvency, did not pay for Dr. Schmidt’s services.
In June 2015, Joseph’s counsel notified the Department of Palmer’s failure to
pay. (Id. ¶¶ 24–25.) Counsel requested that the Department, pursuant to its
responsibilities under IDEA to ensure that all children with disabilities receive a free
appropriate public education, pay the $4,000 for Santino’s evaluation and the accrued
attorneys’ fees of $6,322.55. (Id. ¶¶ 25–26.) The Department agreed to pay for
Santino’s evaluation but refused to pay the attorneys’ fees. (Id. ¶¶ 27, 29.)

6

III.
Summary judgment is proper if there is no genuine issue of material fact and if,
viewing the facts in the light most favorable to the non-moving party, the moving party
is entitled to judgment as a matter of law. Smathers v. Multi-Tool, Inc./Multi-Plastics,
Inc. Emp. Health & Welfare Plan, 298 F.3d 191, 194 (3d Cir. 2002); see also Fed. R. Civ.
P. 56(c). A genuine issue of material fact exists when “a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986). A mere scintilla of evidence in support of the non-moving party will not suffice;
there must be evidence by which a jury could reasonably find for the non-moving party.
Id. at 252. Summary judgment is appropriate where “the nonmoving party has failed to
make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In reviewing the record, a court “must view the facts in the light most favorable
to the nonmoving party and draw all inferences in that party’s favor.” Prowel v. Wise
Bus. Forms, 579 F.3d 285, 286 (3d Cir. 2009). The court may not, however, make
credibility determinations or weigh the evidence in considering motions for summary
judgment. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also
Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir. 2002).
Moreover, “[t]he rule is no different where there are cross-motions for summary
judgment.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). “When
confronted with cross-motions for summary judgment, ‘[t]he court must rule on each
party’s motion on an individual and separate basis, determining, for each side, whether
a judgment may be entered in accordance with the Rule 56 standard.’” Perez v.

7

Kwasny, 159 F. Supp. 3d 565, 569 (E.D. Pa. 2016) (quoting Schlegel v. Life Ins. Co. of N.
Am., 269 F. Supp. 2d 612, 615 n.1 (E.D. Pa. 2003)).
IV.
A.
Under the “American Rule,” parties are ordinarily responsible for their own
attorneys’ fees, regardless of the outcome. See generally Baker Botts L.L.P. v. ASARCO
LLC, 135 S. Ct. 2158, 2164 (2015). In fact, there is “a general practice of not awarding
fees to a prevailing party absent explicit statutory authority.” Key Tronic Corp. v.
United States, 511 U.S. 809, 819 (1994).
“[P]laintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if
they succeed on any significant issue in litigation which achieves some of the benefit
the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(citation omitted). “The touchstone of the prevailing party inquiry must be the material
alteration of the legal relationship of the parties in a manner which Congress sought to
promote in the fee statute.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489
U.S. 782, 792–93 (1989). Supreme Court precedents “thus counsel against holding that
the term ‘prevailing party’ authorizes an award of attorney’s fees without a
corresponding alteration in the legal relationship of the parties.” Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001); see
also John T. ex rel. Paul T. v. Del. Cty. Intermediate Unit, 318 F.3d 545, 555 (3d Cir.
2003) (applying Buckhannon, 532 U.S. 598, to IDEA fee shifting).
The due process hearing officer ordered Palmer to pay Dr. Schmidt $4,000 and
declared Plaintiff the prevailing party. (Due Process Order, at 3, ECF No. 17-3.)

8

Plaintiff is undoubtedly the prevailing party against Palmer, as the due process order
affected a “material alteration of the legal relationship” between Plaintiff and Palmer.
If Palmer was still a viable entity, Plaintiff could ask the Court to order Palmer to pay
his reasonable attorneys’ fees under § 1415(i)(3).
Plaintiff did not, however, prevail against the Department. Cf. Kentucky v.
Graham, 473 U.S. 159, 165 (1985) (“[L]iability on the merits and responsibility for fees
go hand in hand; where a defendant has not been prevailed against, either because of
legal immunity or on the merits, § 1988 does not authorize a fee award against that
defendant.”). The Department was not a party to the due process hearing. Indeed, the
hearing officer specifically ordered the following: “Walter D. Palmer Leadership
Learning Partners Charter School shall pay Dr. Kara Schmidt the amount of $4,000.00
for completion of the Independent Educational Evaluation.” (Due Process Order, at 3,
ECF No. 17-3.) The legal relationship between Plaintiff and the Department did not
change as a result of this order.
This case is unlike those where the Department was in fact a party to the due
process proceeding. In R.V. v. Rivera, 220 F. Supp. 3d 588 (E.D. Pa. 2016), after Palmer
closed, a student’s mother filed two IDEA due process complaints (one against Palmer
and one against the Department) alleging that her child was denied a free appropriate
public education. Id. at 589–90. The mother later sued in federal court challenging the
decision of the hearing officer that her claim against the Department was moot; she
also asked the court to order attorneys’ fees against the Department. The court denied
the Department’s motion to dismiss the claim for attorneys’ fees reasoning that “once
an SEA is properly subject to an IDEA due process complaint, it risks a judgment

9

imposing attorneys’ fees should its opponent attain prevailing party status.” Id. at 595.
Here, unlike in R.V., the Department was not properly subject to an IDEA due process
complaint.
The Department paid $4,000 for Santino’s evaluation after Palmer closed
because, under IDEA, it has the ultimate responsibility to ensure every disabled child
receives a free appropriate public education. See Charlene R., 63 F. Supp. at 513; see
also 20 U.S.C. §§ 1412(a)(11)(A), 1413(g)(1); Kruelle, 642 F.2d 687, 696 (3d Cir. 1981).
But IDEA, not the due process hearing, compelled this result; the due process hearing
did not create a “material alteration of the legal relationship” between Plaintiff and the
Department.
B.
Plaintiff relies almost entirely on Charlene R. v. Solomon Charter School, 63 F.
Supp. 3d 510 (E.D. Pa. 2014), though counsel acknowledged at oral argument that the
case “doesn’t get [the Plaintiff] completely home . . . because it didn’t have to decide this
issue.” (Tr. of Hr’g, at 50:2–8.) In Charlene R., the parents of a disabled student filed a
due process complaint against Solomon charter school alleging that their child was
denied a free appropriate public education. Id. at 512. Before a due process hearing
officer could rule on the complaint, Solomon and the parents entered into a resolution
agreement pursuant to 20 U.S.C. § 1415(f)(1)(B). Solomon closed two weeks later and
failed to make payments under the agreement. The parents thereafter sued Solomon
and the Department and sought to have the court enforce the resolution agreement
against the Department. Id.

10

The Department moved to dismiss the parent’s suit, arguing, inter alia, that it
was not a party to the resolution agreement. The court denied the Department’s
motion. After establishing that the SEA is ultimately responsible for ensuring that
disabled children receive a free appropriate public education, the court concluded that if
discovery revealed that the SEA was insolvent, the child would be denied a free
appropriate public education and therefore IDEA and case law would support ordering
the SEA to comply with the resolution agreement. Id. at 519.
Charlene R. held that an SEA “retains primary responsibility to ensure that all
children with disabilities receive the education that is their right under the IDEA.” 63
F. Supp. 3d at 513. It did not hold that the Department must indemnify all liabilities
for failed charter schools. Instead, the court expressly limited its ruling and stated that
whether an SEA is liable for attorneys’ fees was “not a comparable inquiry” to the issue
before it, namely, whether an SEA is ultimately responsible for providing a free
appropriate public education. Id. at 515 n.2.
C.
Plaintiff also argues that attorney fee shifting is integral to a free appropriate
public education under IDEA. He contends that while parents are not required to hire
an attorney under any of the three proceedings discussed above (due process, state
complaint or formal mediation), in practice, an attorney is necessary for success, and
IDEA’s attorney fee shifting provisions provide families with access to effective counsel.
As a practical matter, Plaintiff’s position is understandable. As a legal matter, it is
unsupported.

11

Plaintiff quotes out of context an unpublished, out-of-circuit, district court
decision, P.D. v. Mt. Vernon Comm. Sch. Corp., 2008 WL 1701877 (S.D. Ind. Apr. 10,
2008), to purportedly show that at least one court has held that fee shifting is integral
to a free appropriate public education. P.D., however, did not so hold—Plaintiff
repeatedly quotes or cites the court’s description of the plaintiff’s argument as if it were
the court’s holding.
In P.D., while the court did acknowledge general public policy purposes behind
the fee-shifting provisions in IDEA—including those raised by the Plaintiff here—it
clarified that these considerations were “not the only public policy at stake.” Id. The
court then explained that “unlike other civil rights cases that often have broader
implications for other cases, IDEA suits usually involve only very targeted disputes
over the fine-tuning of IEPs affecting only one student in one district.” Id. (quotation
omitted). And because “the financial demands on public school districts are getting
harder and harder to meet” courts should pay “close attention” to “requests for
attorneys’ fees which drain taxpayer-funded districts of their ability to meet other
needs.” Id. (quotation omitted). Far from supporting Plaintiff’s contention that fee
shifting is integral to a free appropriate public education, P.D. articulates reasons why
courts should carefully review requests for attorneys’ fees.
Congress did not regard fee shifting as integral to a free appropriate public
education under IDEA. The statute provides for discretionary fee shifting—a court “in
its discretion, may award reasonable attorneys’ fees.”3 20 U.S.C. § 1415(i)(3)(B). If, as
Plaintiff contends, fee shifting was integral to a free appropriate public education,

Of course, the Court may award fees in its discretion only to a party who first qualifies as a
prevailing party. See supra section IV.A.
3

12

Congress would have mandated it as it has done in countless other federal statutes.
See, e.g., Fair Labor Standards Act, 29 U.S.C. § 216(b) (“The court in such action shall,
in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable
attorney’s fee to be paid by the defendant, and costs of the action.” (emphasis added));
Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (“[A] court shall award to a
prevailing party other than the United States fees and other expenses . . . incurred by
that party in any civil action . . . unless the court finds that the position of the United
States was substantially justified.” (emphasis added)); Clayton Act, 15 U.S.C. § 15(a)
(“[A]ny person who shall be injured in his business or property by reason of anything
forbidden in the antitrust laws may sue therefor in any district court . . . and shall
recover threefold the damages by him sustained, and the cost of suit, including a
reasonable attorney’s fee.” (emphasis added)); Fair Debt Collection Practices Act, 15
U.S.C. § 1692k(a)(3); Truth in Lending Act, 15 U.S.C. § 1640(a)(3). That IDEA’s fee
shifting is discretionary indicates that Congress did not believe fee shifting was integral
to the law’s guarantee of a free appropriate public education. IDEA’s structure
confirms this. The statute provides extensive procedural safeguards, including various
avenues to settle disputes under IDEA: a due process hearing, a state complaint and
formal mediation. While counsel may be beneficial in navigating all of these routes,
IDEA does not recognize the necessity of legal representation, much less guarantee
payment for it.
V.
The Supreme Court recently emphasized that IDEA does not “effectively
empower[ ] judges to elaborate a federal common law of public education.” Endrew F.,

13

137 S. Ct. at 998. The circumstances giving rise to this dispute may not have been
reasonably foreseeable to the legislative branch when IDEA was written, but the Court
cannot fashion a remedy Congress did not provide or perhaps even contemplate.
Plaintiff did not prevail against the Department at the due process hearing. While
IDEA requires SEAs like the Department to provide a free appropriate education when
a charter school fails, the law does not provide for fee shifting under the unique facts of
this case.
An appropriate order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

14