UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-20367
Summary Calendar
_____________________
HOUSTON INDEPENDENT SCHOOL DISTRICT,
Plaintiff-Appellee,
versus
DOUGLAS J.; CAROL J; REED J.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No.97-CV-292
January 27, 1999
Before KING, Chief Judge, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Appellants, Reed J. and his parents, Douglas J. and Carol J.,
appeal the summary judgment in favor of Appellee Houston
Independent School District and the district court’s protective
order and associated award of attorney’s fees against Appellants.
We AFFIRM.
I.
Reed J. is a learning disabled high school student enrolled at
a school within the Houston Independent School District (HISD).
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
During Reed J.’s third grade year, the HISD completed a
comprehensive individual assessment of Reed J., and an Admissions,
Review and Dismissal Committee (ARDC) determined that Reed J. was
eligible for special education as a learning disabled student in
the areas of written expression, reading, comprehension, and
speech. In February 1990 (Reed J.’s fourth grade year), an ARDC
developed an individual education plan (IEP) that addressed Reed
J.’s reading and writing deficits. Reed J. received resource
assistance for reading and writing during his fourth and fifth
grade school years.
When Reed J. was reevaluated in the sixth grade, HISD found
him to be reading on a second grade level. Although HISD
determined that Reed J. no longer qualified for special education
in speech, it recommended Reed J. for special education in reading
and writing. At a May 1994 meeting, an ARDC recommended further
modifications for his 1994-95 (eighth grade) IEP. At a December
1994 ARDC meeting, Reed J.’s failure of a piano class was discussed
and numerous modifications were recommended for Reed J.’s
instruction.
In May 1995, an ARDC determined that Reed J. would attend
Scarborough High School for 1995-96 because of its smaller size and
block scheduling. After Reed J. transferred to the high school,
his IEPs were four to six weeks late in arriving.
In October 1995, Dr. Jack Fletcher, Ph.D., a private
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neuropsychologist, examined Reed J. Dr. Fletcher determined that
Reed J. had dyslexia and Attention Deficit Hyperactivity Disorder.
Dr. Fletcher prepared a report containing the results of his
testing of Reed J., and an ARDC met in January 1996 to discuss the
report. IEPs were developed for Reed J. that provided for
extensive modifications, including, among other things, highlighted
texts. However, Dr. Fletcher’s report mistakenly listed much
higher scores on Reed J.’s test results than Reed J. actually
achieved; the ARDC, not knowing of the errors, used these scores in
developing the IEPs.
At a September 1996 ARDC meeting, Reed J.’s parents requested
that HISD provide Reed J. with a private reading tutor. The ARDC
refused. Reed J.’s parents placed Reed J. in a private reading
program, at a cost of $50 per week, and then filed for a due
process hearing, claiming that, because HISD had not provided Reed
J. with highlighted texts in all his courses as required by the
January 1996 IEPs, it had violated the Individuals With
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and
denied Reed J. a free, appropriate public education (FAPE).
A hearing was held, and the hearing officer found that Reed J.
had been denied a FAPE, but only because of HISD’s failure to
provide highlighted texts in all of Reed J.’s classes. The hearing
officer ordered HISD to reimburse the private tutor and
transportation costs through the end of the 1996-97 school year.
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HISD filed an appeal in district court. The district court
granted HISD’s summary judgment motion, reversing the hearing
officer. Appellants contest that decision.
During those proceedings, Appellants’ counsel sent an e-mail
message to the employer of one of HISD’s expert witnesses that
apparently caused concern on the part of that witness. HISD moved
for a protective order. The district court granted the protective
order and concomitantly awarded HISD $1,943.75 in attorney’s fees
related to the preparation of the motion. Appellants also contest
this order.
II.
A.
Of course, we review a summary judgment de novo, applying the
same standard applied by the district court. E.g., Burns v. Harris
County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir. 1998). The
district court must give due deference to the hearing officer’s
findings. Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Our
court has interpreted this to mean that the district court is to
give those findings “due weight” in conducting a “virtually de
novo” review of the decision. Teague Independent Sch. Dist. v.
Todd L., 999 F.2d 127, 131 (5th Cir. 1993).
Having reviewed the briefs and the record, we affirm the
summary judgment for essentially the reasons stated by the district
court in its comprehensive and well-reasoned opinion. Houston
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Independent Sch. Dist. v. Douglas J., No. H-97-0292, slip op. at 5-
25 (S.D. Tex., Mar. 31, 1998).
B.
Appellants also contested the district court’s protective
order and associated attorney’s fees awarded HISD. We review such
orders for abuse of discretion. Leatherman v. Tarrant County
Narcotics Intelligence & Coordination, 28 F.3d 1388, 1394 (5th Cir.
1994); Landry v. Air Line Pilots Ass’n Int’l, AFL-CIO, 901 F.2d
404, 436 (5th Cir. 1990).
Federal Rule of Appellate Procedure 10(b)(2) states: “If the
appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the
appellant shall include in the record a transcript of all evidence
relevant to such finding or conclusion.” Appellants contend that
“[t]he [district] court ignored the facts as provided by Reed’s
counsel”. However, in addition to failing to properly brief this
issue, Appellants have failed to provide this court with a
transcript of the hearing the district court held before ruling on
this matter. Thus, based on HISD’s motion for a protective order
and Appellants’ response, we are unable to conclude that the
district court abused its discretion in granting the protective
order or in awarding attorney’s fees.
In this regard, we uphold the district court’s use of an
affidavit detailing the bases for the requested attorney’s fees,
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rather than contemporaneous time records. Appellants did not
object in district court; and they do not now cite any authority
that contemporaneous time records are required. In short, we find
no plain error. See, e.g., Douglass v. United Services Auto.
Ass’n, 79 F.3d 1415, 1424 (5th Cir. 1996)(“appellate courts have
discretion to correct unobjected-to (forfeited) errors that are
plain (“clear” or “obvious”) and affect substantial rights”).
III.
For the aforementioned reasons, we AFFIRM the summary judgment
and the protective order, including the related award of attorney’s
fees.
AFFIRMED
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