G ex rel. Rg v. Fort Bragg Dependent Schools

Citation343 F.3d 295
Decision Date25 March 2003
Docket NumberNo. 01-1845.,01-1845.
PartiesG, by his parents, SSGT RG, USAF, and AG, and on their own behalf, Plaintiff-Appellant, v. FORT BRAGG DEPENDENT SCHOOLS; Department of Defense Domestic Dependent Elementary and Secondary Schools; Frank Cleary, Superintendent of Fort Bragg Dependent Schools, in his official capacity; Rita Shupe, Director of Exceptional Children's Program, in her official capacity, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Paul Lawrence Erickson, Law Firm of Paul L. Erickson, P.A., Asheville, North Carolina, for Appellant.

Gary Lee Bergosh, Special Assistant United States Attorney, Raleigh, North Carolina, for Appellees.

ON BRIEF: John Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellees.

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed in part and reversed and remanded in part by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG and Judge MICHAEL joined.


WILLIAMS, Circuit Judge:

G, a child with autism in the Fort Bragg Dependent Schools (FBDS), appeals from a district court's1 order in this action under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 et seq. Specifically, G appeals from the district court's order (1) holding that the Individualized Education Program (IEP) proposed by FBDS in April 1997 met the governing standard under the IDEA; (2) refusing to order "compensatory education" on the basis of FBDS's asserted failure to provide G with an education meeting that standard during the 1994-1996 school years; (3) finding that he was not a prevailing party for attorneys' fees purposes; and (4) refusing to grant him prejudgment interest on an award of reimbursement of educational expenses.2 Because we are unable, based on the parties' arguments on appeal and the record in the district court, to determine whether the district court properly found that the April 1997 IEP met the governing standard, we reverse the district court's conclusion on that issue and remand for further proceedings. We likewise conclude that the district court erred in holding that, as a matter of law, G's request for an award of compensatory education was barred, and accordingly we reverse and remand the district court's rejection of that claim for reconsideration. We further conclude that the district court erred in finding that G was not entitled to any attorneys' fees because he was not the prevailing party on any issue, and we therefore reverse the district court's determination of that issue and remand for reconsideration. Finally, we affirm the district court's denial of prejudgment interest on the reimbursement award.


A brief overview of the relevant law and administrative processes will put the subsequent discussion of the issues in this appeal in context. Under the IDEA, states that receive federal funds for education must provide to all students with disabilities a "free appropriate public education." As defined in the IDEA, a "free appropriate public education" (FAPE) includes both instruction designed to suit the needs of the disabled child and "related services," 20 U.S.C.A. § 1401(a)(18), which include "such developmental, corrective, and other supportive services ... as may be required to assist a child with a disability to benefit from special education," § 1401(a)(17).3

The primary vehicle for delivery of a FAPE to students with disabilities is the IEP. School districts are required under the IDEA to create an IEP for each student with a disability. IEPs are to be developed for all students with disabilities through cooperation between parents and school officials. 20 U.S.C.A. § 1414(a)(5). The IEP must state, inter alia, the student's current educational status, annual goals for the student's education, the special education services and other supplementary aids and services to be provided to the student, and the extent to which the student will be participating in mainstream classes. § 1401(a)(20).

The IDEA establishes a series of procedural safeguards "designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to those decisions." MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d 523, 527 (4th Cir.2002) (internal citation omitted). Parents have the right to participate in their child's educational evaluation and the development of his IEP,4 id., and to receive written prior notice before any change in (or any refusal to change) the evaluation or IEP. § 1415(b)(1)(C). In the event that a parent is dissatisfied with the school's actions, § 1415(b)(1)(E) provides that parents must have "an opportunity to present complaints 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 a child." § 1415(b)(1)(E). In turn, § 1415(b)(2) provides a right to a due process hearing "where a complaint has been received" under § 1415(b)(1)(E).

G is a student in FBDS, a school system operated by the United States Department of Defense. Supervision of Department of Defense schools is conducted by school boards elected by parents of students attending the schools, and ultimately by the Secretary of Defense. See 10 U.S.C.A. § 2164(d)(1) (providing that the Secretary of Defense "shall provide for the establishment of a school board for Department of Defense elementary and secondary schools established at each military installation under this section"); § 2164(d)(4)(A) (providing that "[a] school board elected for a school under this subsection may participate in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for the school, except that the Secretary may issue any directive that the Secretary considers necessary for the effective operation of the school or the entire school system"). Due process hearings and appeals are conducted for children in these schools by independent hearing officers (IHOs) appointed by the Director of the Directorate for the Defense Office of Hearings and Appeals (DOHA), and by the DOHA Appeal Board (the Appeal Board), respectively. 32 C.F.R. Pt. 80, App. C, ¶¶ B, D, F.


G is the son of a Sergeant in the United States Air Force, stationed at Pope Air Force Base in Fayetteville, North Carolina. Born in April 1992, G began receiving special education in FBDS schools when he was approximately 2 1/2 years old. Because G is a child with autism and thus considered disabled under the IDEA, an IEP was developed for G when he first was enrolled at FBDS for the 1994-1995 school year,5 and at the conclusion of each school year thereafter. As required by the IDEA, 20 U.S.C.A. §§ 1401(a)(20), 1414(a)(5), the IEPs stated goals for G's education for the year and laid out the type and quantity of instruction he was to receive.

Around the end of the 1995-1996 school year, concerned that G did not appear to be progressing in the development of appropriate behaviors and skills, G's mother attended a conference on the "Lovaas" method.6 After some further research, G's mother communicated to G's teachers and others within FBDS that she felt the Lovaas method held great promise for G.

In May of 1996, FBDS proposed an IEP for G for the 1996-1997 school year closely resembling that in effect during the 1995-1996 school year. The proposed IEP did not include any Lovaas techniques or methods, and G's mother rejected it. Instead, beginning in the summer of 1996, G's parents took steps to have the Lovaas method provided for G in their home by private consultants certified in its implementation.7 To pay the cost of the program, G's parents launched an ambitious fundraising effort, eventually raising over $37,000 from community sources. In October of 1996, shortly after the beginning of the regular school year, the Lovaas consultant who had been working with G prepared a document entitled "IEP Goals," listing goals for the following nine months. The document recommended that G continue to receive the complete Lovaas therapy at home.

G's parents kept him home from school at the beginning of the 1996-1997 school year, providing the complete Lovaas therapy at home. Because of his continued absence, FBDS administratively withdrew G from its student roster in October 1996. In November 1996, G's parents wrote a letter to the school requesting that the school provide funding for G to continue receiving the complete Lovaas therapy at home at a cost of roughly $19,000 per year.

With no affirmative response forthcoming from FBDS, G's parents continued to fund the complete Lovaas therapy in their home from private sources. Four-year-old G made significant progress in several areas, including verbally imitating some sounds, using eating utensils, and dressing himself. The district court found that "by the time [the IHO] made his ruling [in December 1997], G had progressed to the point where he should be gradually transitioning to a school classroom in the near future." (J.A. at 163.) The record thus suggests that G's educational progress from 1996 to 1998 was significant.

In April of 1997, in consultation with G's mother, FBDS again proposed an IEP for G, this time for the 1997-1998 school year. G's mother rejected the IEP because, although on paper it contained the elements — that is, the instructional methods and activities — of the complete Lovaas therapy it did not provide for the complete Lovaas therapy, omitting in particular the participation of a Lovaas-certified consultant.


G's parents first requested a due process hearing in a letter dated May 16, 1997.8 (J.A. ...

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