Lught v. Molalla River Sch. Dist.

• Decision Date: 11 July 2000
• Docket Number: No. 99-35733,99-35733
• Citation: 225 F.3d 1023
• Parties: (9th Cir. 2000) DALE LUCHT and TERRY LUCHT, Plaintiffs-Appellees, v. MOLALLA RIVER SCHOOL DISTRICT, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1023

225 F.3d 1023 (9th Cir. 2000)

DALE LUCHT and TERRY LUCHT, Plaintiffs-Appellees, v. MOLALLA RIVER SCHOOL DISTRICT, Defendant-Appellant.

No. 99-35733

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted July 11, 2000--Portland, Oregon

Filed September 5, 2000

COUNSEL: Richard G. Cohn-Lee and Andrea L. Hungerford, The Hungerford Law Firm, West Linn, Oregon, for the defendant-appellant.

Dana R. Taylor, Hagen, Dye, Hirschy & DiLorenzo, P.C., Portland, Oregon, for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon Owen M. Panner, District Judge, Presiding D.C. No. CV-98-01375-ST

Before: Warren J. Ferguson, Susan P. Graber, and William A. Fletcher, Circuit Judges.

Philip Schradle, Chief Civil Attorney, Oregon Department of Justice, Salem, Oregon, for the amicus curiae.

OPINION

GRABER, Circuit Judge:

Plaintiffs Dale and Terry Lucht have an autistic son who lives within the area served by Defendant, the Molalla River School District. Plaintiffs' son is entitled to special-education benefits under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. SS 1400-1490. After making several informal complaints to Defendant regarding their son's educational program, Plaintiffs filed a complaint with the Oregon Department of Education (Department) pursuant to Oregon's Complaint Resolution Procedure (CRP), provided by Oregon Administrative Rule 581-001-0010 (recodified at 581-0150054). In that complaint, Plaintiffs alleged that Defendant had committed several violations of the IDEA in the course of educating their son.

The Department investigated Plaintiffs' complaint and concluded that Defendant had violated several provisions of the IDEA. The Department ordered Defendant to convene an Individualized Education Program (IEP) meeting to address the errors that it had identified. As instructed, Defendant held several IEP meetings to formulate a new IEP for Plaintiffs' son. Plaintiffs attended the IEP meetings and, in at least three of those meetings, were represented by a lawyer. The IEP meetings resulted in the formulation and adoption of a revised IEP for Plaintiffs' son, which the parties agree complies with the IDEA.

Plaintiffs then brought this action in federal district court, seeking to recover the attorney fees that they had incurred in the Department-ordered IEP meetings attended by their lawyer. After the parties filed cross-motions for summary judgment, the district court adopted the magistrate judge's recommendation and granted Plaintiffs' request for attorney fees. Defendant appeals from the district court's decision, asserting that the IDEA does not allow Plaintiffs to recover their attorney fees for their lawyer's attendance at the IEP meetings.¹ We affirm.

STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment. See Burrell v. Star Nursery, Inc., 170 F.3d 951, 954 (9th Cir. 1999). Summary judgment is appropriate if the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

DISCUSSION

A. There are two ways to bring an IDEA challenge.

States that receive IDEA funds must "establish and maintain procedures . . . to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education." 20 U.S.C. S 1415(a). The IDEA itself provides for an "impartial due process hearing" process. 20 U.S.C. S 1415(f)(1).² That process includes the right to counsel, the right to present evidence, and the right to present, confront, and compel the attendance of witnesses. See 20 U.S.C. S 1415(h). Additionally, the parent of a disabled child has the right to appeal the final decision of the administrative agency to the district court. See 20 U.S.C. S 1415(g) & (i).

An impartial due process hearing, however, is not the only way in which the parents of a disabled child can force their school district to comply with the IDEA. Parents also can file a complaint pursuant to a state's CRP. Unlike the impartial due process hearing that is expressly provided in S 1415 and is detailed in the regulations promulgated pursuant to it, see 34 C.F.R. SS 300.508-.513, the CRP is described only in the regulations, see 34 C.F.R. SS 300.660-.662.³

Under the CRP regulations, a State Educational Agency (SEA) must carry out an independent on-site investigation, give the complainant an opportunity to supply additional information about the allegations, determine whether the school district is violating the IDEA and, within 60 days of the filing of the complaint, issue a written decision containing factual findings, conclusions, and the reasons for the final decision. See 34 C.F.R. S 300.661. In addition, the SEA's decision must "[i]nclude procedures for effective implementation of the SEA's final decision," including, if needed, "(i) [t]echnical assistance activities; (ii) [n]egotiations; and (iii) [c]orrective actions to achieve compliance. " 34 C.F.R. S 300.661(b)(2).

B. The IDEA provides for attorney fees.

1. Jurisdiction

Title 20 U.S.C. S 1415(i)(3)(B) provides that, "[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." We first must consider whether, under that statute, the district court can hear an action such as this one. Although we have not expressly so held before today, our prior cases imply that the district court has jurisdiction over a case in which fees are sought although liability is established outside the district court proceeding itself. See BarlowGresham Union High Sch. Dist. No. 2 v. Mitchell, 940 F.2d 1280, 1285 (9th Cir. 1991) (allowing "the prevailing parents to recover attorneys' fees when settlement is reached prior to the due process hearing"); McSomebodies v. Burlingame Elementary Sch. Dist., 897 F.2d 974 (9th Cir. 1989) (awarding the parents of a disabled child attorney fees incurred in an administrative due process hearing under the Handicapped Children's Protection Act).

When a parent obtains affirmative relief in a proceeding brought under the IDEA, then the parent is "the prevailing party." 20 U.S.C. S 1415(i)(3)(B); see also Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 70 (9th Cir. 1996) ("This court has construed section 1415[(i)(3)(B)] to justify the award of attorneys' fees to parents who prevailed at an administrative hearing or reached a favorable settlement prior to a scheduled administrative hearing."). If, as we hold below, the CRP is a "proceeding brought under" S 1415, then a court may award fees to a plaintiff parent who obtains affirmative relief in that manner. To hold otherwise would be to render meaningless the statutory wording that the court may award fees in "any . . . proceeding" brought underS 1415, even if it is not an "action." Moreover, if a plaintiff parent's rights under the IDEA include the right to recover fees expended in a successful CRP, the right would be unenforceable if we were to hold that a district court lacks jurisdiction to enforce it.

2. "Action or Proceeding"

The parties do not dispute that, under S 1415(i)(3)(B), prevailing parents can recover attorney fees that they expended in an impartial due process hearing. Defendant argues, however, that the CRP, unlike the due process hearing, is not an "action or proceeding brought under [S 1415]." Accordingly, Defendant argues, CRP-related attorney fees cannot be recovered under S 1415(i)(3)(B).

Initially, we note that there is nothing in the text of S 1415 that suggests that attorney fees cannot be awarded for IEP meetings that are ordered by an SEA to resolve a CRP complaint. Section 1415(i)(3)(B) provides that a district court may award attorney fees "[i]n any action or proceeding brought under this section." Had Congress intended that attorney fees be available only in those cases involving an impartial due process hearing under S 1415(f), it could have and would have written the statute more narrowly to say so.

Indeed, in the same subsection ofS 1415 that includes the attorney fees provision, Congress exhibited its ability to refer expressly to the impartial due process hearing procedures that are contained in S 1415(f). See 20 U.S.C. S 1415(i)(1)(A) ("A decision made in a hearing conducted pursuant to subsection (f) . . . of this section shall be final . . . ."); 20 U.S.C. S 1415(i)(2)(A) ("Any party aggrieved by the findings and decision made under subsection (f) . . . ."). If Congress had wanted to provide for the recovery of attorney fees only in those cases in which a due process hearing was conducted, it could have worded S 1415(i)(3)(B) in the same fashion as S 1415(i)(1)(A) and (i)(2)(A). However, Congress chose different and broader wording, a choice that supports our conclusion that Congress did not intend to restrict awards of attorney fees to only those cases in which the parents of a disabled child opt to pursue an impartial due process hearing. See Russello v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (citation and internal quotation marks omitted).

As noted above, S 1415(i)(3)(B) provides that a district court may award attorney fees "[i]n any action or proceeding brought under this section." (Emphasis added.) Congress' use of the word "any" is significant, because it suggests that there is more than one type of "proceeding" in which a district court is authorized to award attorney fees....