Wheeler ex rel. Wheeler v. Towanda Area School District

950 F.2d 128, 1991 WL 254284

• Court: Court of Appeals for the Third Circuit
• Decided: December 5, 1991
• Docket: No. 91-5417
• Status: Published

Opinions

OPINION OF THE COURT

NYGAARD, Circuit Judge

Plaintiffs-appellants, Shannon W. Wheeler and her parents, appeal a summary judgment denying their motion for attorney’s fees from defendant-appellee Towanda Area School District under the fee-shifting provisions of the Education of the Handicapped Act (“EHA”), 20 U.S.C. § 1415. Those provisions award reasonable attorney’s fees to a prevailing party. We exercise plenary review of the District Court’s summary judgment in favor of the School District. Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). The district court concluded that appellants were not prevailing parties. We will affirm.

I.

Shannon is a hearing impaired high school student. Because she is deaf, the School District created an Individualized Education Plan which required a sign language interpreter. Terri Kane was Shannon’s sign language interpreter for the 1989-1990 school year. Convinced that Kane’s interpreting skills were inadequate, Shannon’s parents initiated special education due process proceedings against the School District. Although their initial request did not specifically assert that Kane was not qualified, it is clear that such was the thrust of their request. Eight due process hearings followed, running from February to April 1990.

A. The Due Process Hearings.

The Pennsylvania Department of Education Hearing Officer presided over the due process hearings. The Parents asked the hearing officer to adopt the following conclusions of law:

4. ... Shannon has been denied an equal opportunity to gain the same benefit or level of achievement as a nonhandi-capped person solely because of her deafness by reason of the district hiring an unqualified interpreter.

5. The district has violated Section 504 in that it did not provide related qualified interpreter services to Shannon, which are designed to meet her needs as adequately as the needs of the unhandicap-ped persons are met.

6. Section 300.12 of the EHA regulations defines “qualified” for those persons providing special education or related services as follows:

As used in this part, the term “qualified” means the person has met state educational agency approved or recognized certification, licensing, registration, or other comparable requirements which apply to the area in which he or she is providing special education or related services.

7. Since the Pennsylvania Department of Education (PDE) district has no certification or licensing requirements, interpreters in an educational setting must meet other comparable requirements established by the Registry of Interpreters for the Deaf. (RID).

8. The district has violated above-quoted Section 300.12 since the District has failed to provide an interpreter which meets this section’s definition of “qualified”.

9. By providing an interpreter who was not qualified as defined by above-quoted Section 300.12, the District has violated the Rowley and Diamond standard in that the interpreter which the district has provided resulted in Shannon’s educational regression rather than making progress.

Wheeler v. Towanda Area Sch. Dist., No. 90-1764, slip op. at 11-12 (M.D.Pa. May 10, 1991).

Kane testified at the hearings that she had some difficulty interpreting for Shannon, was not at Shannon’s level of signing, and was uncomfortable interpreting for Shannon. Kane became ill and in late February, 1990 orally requested a transfer. Upon receiving notice from Kane, the School District immediately began searching for a new interpreter with the aid of outside experts. After March 16,1990, she no longer acted as Shannon’s interpreter.

The hearing officer rejected the Parents’ claim that Shannon’s poor performance was due solely to the interpreter. He found that many other factors led to her poor performance, such as poor attendance and low motivation. Moreover, he found that Shannon did not do significantly better in school with other interpreters. Thus, the hearing officer found it impossible to say whether Kane was responsible for Shannon’s difficulties. He also did not address the issue of whether the School District violated EHA Section 300.12 or Section 504. Furthermore, the hearing officer did not adopt any of the Parents’ proposed conclusions of law.

Instead, he issued the following order:

It is hereby ordered that ... the District make all concerted effort to advertise and hire a suitable interpreter for Shannon looking into all possible options for providing an equally appropriate salary scale given the possible latitude under the School Code.

Decision of the Hearing Officer, issued Apr. 19, 1990, at 7.

B. The Secretary of Education.

Dissatisfied with the hearing officer’s findings, the Parents appealed to the Pennsylvania Secretary of Education.¹ They filed many exceptions to the hearing officer’s decision, including a request that the School District be required to provide an interpreter qualified under Section 300.12 of the EHA regulations. An interpreter acceptable to the Parents would have to meet one of the following criteria, based on Section 300.12:

1. An interpreter certified by the Registry of the Interpreters of the Deaf (RID);

2. An interpreter who is graduated from Bloomsberg University or any other four-year degree interpreter training program;

3. An interpreter who is graduated from a two-year interpreter program and who has had at least four years experience interpreting on the high school level under the supervision of a senior interpreter;

4. An interpreter with no degree or certification who passes an evaluation conducted by Donna Pocobello or Betty Co-lonomos or other individual with comparable credentials.

Dist.Ct. op. at 13.

The Secretory rejected Section 300.12 as irrelevant. In rejecting the Parents’ proposed qualifications, he explained in his opinion:

We do not herein advocate any specific certification credentials as indicating an individual can act as a “qualified” interpreter. Nor need we do so; in this case, we do not deal with credentials in general or students in general, but rather with one specific student.

Special Ed. Opinion No. 407, In re the Educational Assignment of Shannon W, issued July 3, 1990, at 4.

The Secretory also declined to pass judgment on Kane’s qualifications, stating:

We stress that this opinion offers no statement as to Ms. Kane’s overall ability as an interpreter. The hearing officer noted that testimony from sign language experts “speaks to the lack of proficiency” on the part of Ms. Kane. While she may not yet possess the skills to interpret at the high school level, an expert evaluation may deem her a qualified interpreter for another hearing impaired student in the District.

Id. at 7-8.

Recognizing the sharp disagreement over the selection of a new interpreter, the Secretory acknowledged that a third party would help mediate the dispute. Consequently, he issued an order modifying the hearing officer’s order to require that the School District make a “conscious effort” with the aid of an outside expert to hire an interpreter who could “accurately transmit information to and from her in her specific academic setting.” He denied all exceptions not pertaining to that issue.

Thus, the only change the Secretory made in the hearing officer’s decision was to call for the use of an outside expert to assist the board in locating a new interpreter. The Parents’ other claims were rejected.

II.

The only issue in this appeal is the Parents’ claim that they are entitled to attorney’s fees under the fee-shifting provisions of the EHA. The EHA, as modified by the Handicapped Children’s Protection Act of 1986, states in relevant part,

(B) In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorney’s fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party-

20 U.S.C. § 1415(e)(4)(B).

The standard for determining whether a party has prevailed is well settled. A prevailing party must 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, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). We apply a two-part test consistent with the Hensley guideline: whether plaintiffs achieved relief and whether there is a causal connection between the litigation and the relief from the defendant. Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 910 (3d Cir.1985).

The first-prong of the test is whether the Parents achieved relief on any of their claims. This involves a commonsense comparison between the relief sought and obtained. 758 F.2d at 911. We have previously articulated a liberal standard for that comparison: as long as a plaintiff achieves some of the benefit sought in a lawsuit, even though the plaintiff does not ultimately succeed in securing a favorable judgment, the plaintiff can be considered the prevailing party for purposes of a fee award. NAACP v. Wilmington Medical Ctr., Inc., 689 F.2d 1161, 1166 (3d Cir.1982), cert. denied, 460 U.S. 1052, 103 S.Ct. 1499, 75 L.Ed.2d 930 (1983).

Although Shannon now has a different interpreter, the Parents did not prevail on any of their legal claims. The Parents’ proposed legal conclusions made two claims: they asked for a finding that Shannon’s interpreter was not qualified and that the School District thus violated EHA sections 300.12 and 504.

Neither the Secretary nor the hearing officer found that Kane was not qualified— the first issue tendered by the parents. Only if the parents proved that Kane was not qualified would her employment be illegal under section 300.12. Since they did not do so, their due process claim that Kane was not qualified must fail.

The Secretary also rejected the Parents’ second request. They asked the Secretary to apply the standardized qualifications of EHA sections 300.12 and 504. He found them to be irrelevant to Shannon’s case. His order required only that the new interpreter be able to transmit information to and from Shannon specifically.

Nonetheless, since a new interpreter was some of the benefit the Parents sought in bringing suit, we must now apply the second prong of the test, namely causation. Litigation is causally related to the relief obtained if it was a material contributing factor in bringing about the events that resulted in obtaining the desired relief. Institutionalized Juveniles, 758 F.2d at 916. Litigation can be a material contributing factor if it changed the legal relations of the parties such that defendants were legally compelled to grant relief. See, e.g., Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (vindication of teachers’ First Amendment rights caused school district to stop interfering with teacher union communications).

Alternatively, causation can be established through a “catalyst” theory, where even though the litigation did not result in a favorable judgment, the pressure of the lawsuit was a material contributing factor in bringing about extrajudicial relief. See, e.g., Institutionalized Juveniles, 758 F.2d at 917 (litigation was catalyst to legislative reform for institutions); Sullivan v. Pennsylvania Dep’t of Labor & Indus., 663 F.2d 443 (3d Cir.1981) (EEOC complaint caused union to take case to arbitration, where relief was ultimately granted). Under either approach, a plaintiff’s action need not be the sole cause of relief. Where there are multiple causes, as long as the litigation was a material contributing factor, it is sufficient to establish causation. NAACP, 689 F.2d at 1169.

The Parents have not shown a causal connection under either theory between their lawsuit and the hiring of a new interpreter. The Parents contend that the School District was forced to change its hiring policies. We find this contention to be without merit. Neither the hearing officer nor the Secretary ordered the School District to do anything that they were not already doing. The hearing officer required the district to make an effort to advertise and hire a suitable interpreter. The Secretary’s final order also instructed the School District to advertise to hire an effective interpreter but with the aid of an outside expert. In fact, the district was searching for a new interpreter and already consulting with an outside expert before the hearing officer’s decision and months before the Secretary’s final order. Thus, the uncontradicted affidavit by Betty Cox, Superintendent of the Towanda Area School District, recites:

The School District made a conscious effort since late February, 1990, to find [an] interpreter as evidenced in paragraph 8 hereof and the School District solicited and/or received the aid of various kinds of experts, such as Barbara Davis, Gary McKutch, Donna Pocobello, James Tucker, Roger Hayden, and Loren Bower, all as more fully described in the preceding paragraphs hereof. The School District’s efforts remain[ed] essentially constant....

Affidavit of Betty Cox, at 7. Since the quoted material would have been admissible at trial, it is basically conclusive on the causation issue because the district court was deciding a summary judgment motion. Fed.R.Civ.P. 56(e).

The parents argue, however, that before the Secretary’s decision the district used experts only in order to locate interpreters. In his opinion, the Secretary stated:

[I]n light of the level of disagreement in this case thus far, consulting with an outside expert, thoroughly trained in sign language and educational interpreting, is an essential component to evaluating a prospective interpreter for Shannon. Consultation and evaluation must take place before an individual is permanently designated as her interpreter.

Special Ed. Opinion No. 407, at 5. The parents contend that this language forced the school district to begin using outside experts to evaluate interpreters rather than to locate candidates for the position. In our view, the quoted language mandates the use of an expert for the district’s evaluation process. The opinion does not delegate sole authority to evaluate potential employees to outside experts.

Although the district did ask a different outside expert to evaluate candidates after the Secretary’s decision, contrary to the parents’ assertions, they did so because the person who had conducted the evaluations was no longer available. Affidavit of Betty Cox, at 7-8. Thus, the most that can be said is that the Parents have established a sequence of events. They have failed to establish an adequate record basis for anything more. We therefore conclude that the hearing officer’s decision and the Secretary’s order precipitated no change at all.

Accordingly, because the School District’s behavior remained constant at all times towards the Parents, and because the Parents failed to submit contrary evidence to the district court, we find no reversible error. The Parents' action did not contribute materially to any benefit ultimately conferred upon Shannon.

III.

In summary, the Parents did not prevail over the school district. Their legal claims were repeatedly rejected, and their action was responsible for no cognizable measure of relief. For the foregoing reasons, we will affirm the judgment of the district court.

1 . The district court found, inter alia, that the Secretary’s review of the hearing officer’s decision was potentially biased and illegal and therefore his special education opinion could not be relied upon by the parents. In view of our ultimate conclusion we shall assume, as the parents contend, that the Secretary’s opinion was properly before the district court and is, therefore, before us.