Wheeler by Wheeler v. Towanda Area School Dist.

• Decision Date: 03 January 1992
• Docket Number: No. 91-5417,91-5417
• Parties: 71 Ed. Law Rep. 621 Shannon W. WHEELER, a Minor, by Her Parents and Natural Guardians, Joseph WHEELER and Susan Wheeler, His Wife; Joseph Wheeler and Susan Wheeler, in Their Own Right and Parents and Natural Guardians of Shannon Wheeler, a Minor, Appellants, v. TOWANDA AREA SCHOOL DISTRICT.
• Court: U.S. Court of Appeals — Third Circuit

Page 128

950 F.2d 128

71 Ed. Law Rep. 621

Shannon W. WHEELER, a Minor, by Her Parents and Natural

Guardians, Joseph WHEELER and Susan Wheeler, His Wife;

Joseph Wheeler and Susan Wheeler, in Their Own Right and Parents and Natural Guardians of Shannon Wheeler, a Minor, Appellants, v. TOWANDA AREA SCHOOL DISTRICT.

No. 91-5417.

United States Court of Appeals,

Third Circuit.

Argued Oct. 12, 1991.

Decided Dec. 5, 1991.

Rehearing and Rehearing In Banc Denied Jan. 3, 1992.

Antoinette Szarek (argued), Philadelphia, Pa., for appellants.

Michael I. Levin, (argued), Cleckner and Fearen, Abington, Pa., for appellee.

Before MANSMANN, NYGAARD, and SEITZ, Circuit Judges.

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 nonhandicapped 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 unhandicapped 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 Colonomos or other individual with comparable credentials.

Dist.Ct. op. at 13.

The Secretary 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 Secretary 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 Secretary 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 Secretary 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...