Wheeler ex rel. Wheeler v. Towanda Area School District

MANSMANN, Circuit Judge,

dissenting.

Because I believe that the majority has adopted an unduly narrow view of the facts of this case and has, as a result, misconstrued the thrust of the opinions issued in the Wheeler administrative proceedings, I strongly dissent. If the Wheelers are not here entitled to recover the large amount of attorneys’ fees incurred in securing a competent interpreter for their hearing-impaired daughter, it is difficult to imagine any case in which parents, battling the powers that be in the educational setting, could hope to be successful with respect to a fee award.

I.

In evaluating this case, it is critical to bear in mind the history of and purpose underlying the fee shifting provisions of the statutory scheme at issue. ' In 1975, Congress enacted legislation known as the Education of the Handicapped Act. This Act allocated federal funds to state educational programs provided that the state had formulated a “policy that assures all handicapped children the right to a free appropriate public education,” 20 U.S.C. § 1412(1) (1988). The Act also “required that states install ‘procedural safeguards’ to ensure that handicapped children and their parents or guardians may effectively oppose institutional decisions affecting educational opportunity. Id. § 1415(a).” Angela L. v. Pasadena Independent School District, 918 F.2d 1188, 1192 (5th Cir.1990).

Originally, the Act did not include a provision permitting recovery of attorneys' fees and the Supreme Court held in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), that in the absence of an express statutory provision to the contrary, attorneys’ fees were not recoverable under the Act. As a result, “[Pjarents of handicapped children, often already bur*134dened by the prohibitive costs of medical care and equipment, found it difficult to pursue expensive litigation against school districts.” Pasadena Independent School District, 918 F.2d at 1192. The situation changed, however, in 1986:

Congress sharply criticized the Court’s decision in Smith and acted “swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent.” In the Handicapped Children’s Protection Act of 1986, ... Congress amended the EHA to permit the recovery of attorney’s fees.... Congressional officials asserted that the legislation represented a critical tool in parents’ attempts to secure an appropriate education for their handicapped children.

Id. at 1192-93 (citations omitted).

It is undisputed that the provision for attorneys fees in appropriate cases enabled parents to challenge, on behalf of their children, educational practices and policies which might otherwise have gone unreme-died. I believe that the majority’s analysis of the outcome of the Wheeler administrative proceedings eviscerates the intent of the fee-shifting provision and will almost certainly deter future legitimate challenges to school districts’ practices and policies. What has always been an uphill battle now becomes all but impossible.

II.

Because my differences with the majority in this matter are, in part, fact-based, it is important to amplify and clarify the chronology of events preceding this appeal.

In the Fall of 1989, Shannon Wheeler was a profoundly deaf eleventh grader attending Towanda Senior High School in Towanda, Pennsylvania. Because of Shannon’s hearing impairment, the School District was required to and did develop for Shannon an Individual Education Plan (IEP). This IEP provided that Shannon, who was mainstreamed in regular classes, would be provided with an interpreter in order to permit her equal access to educational benefits and programs.

Prior to the fall of 1989, Shannon had been paired with an interpreter with a degree in sign language interpretation. In the fall of 1989, the School District hired a new superintendent of schools, Dr. Betty Cox. As appears often to be the case when budgetary cuts must be made, the new superintendent, in an effort to reduce costs, turned to the area of special education. The record establishes that Cox, relying on budgetary grounds, sought to reduce the salary being paid to Shannon’s interpreter, Ms. Perks, advising Ms. Perks that if she were to continue interpreting for Shannon her salary would be reduced from that of a professional employee to that of a classroom aide — a reduction in Ms. Perks’ salary of roughly half. Faced with this reduction in pay, Ms. Perks resigned. Subsequent to Perks’ resignation, Superintendent Cox transferred Ms. Terri Kane, a classroom aide, from a kindergarten class and assigned her to interpret for Shannon at the high school level. Kane had worked interpreting in the kindergarten setting for only two months and had, in the three years prior to her work as a kindergarten aide, been employed as a veterinary assistant.

The Wheelers were dissatisfied with Kane’s performance as an interpreter almost immediately and, on September 13, 1989, they requested that a special education due process proceeding be initiated in order to secure a qualified interpreter for their daughter. The due process proceeding was scheduled to begin on November 20, 1989 but was delayed by the School District pending an evaluation of Ms. Kane’s interpreting services. Donna Poco-bello was retained by the School District to perform the evaluation. In a report dated December 2, 1989, Pocobello detailed the results of her evaluation of Ms. Kane, concluding that

[bjased on the video tapes, my interaction with [Ms. Kane] and the student and observations during three classes, it is my opinion that this teacher aide/interpreter is not adequately providing interpreting services for this hearing-impaired student.

*135Because the Wheelers and the School District could not agree on the appropriate course of action to be taken following the outcome of Pocobello’s evaluation, due process proceedings went forward. During the course of those proceedings, Ms. Kane resigned.

In an opinion dated April 19, 1990, the Pennsylvania Special Education Hearing Officer identified the issue to be decided as follows: “The point of disagreement is in the determination of the qualification of Shannon’s interpreter.” Decision of the Hearing Officer, at 3. The hearing officer’s decision, which was not a model of clarity, then addressed the question of interpreter qualification, analyzing the requirements which should apply to any interpreter hired for Shannon:

The interpreter hired for Shannon should have a degree of proficiency or experience to enable him or her to feel comfortable in a High School academic setting. There is clearly a gradient of content between elementary, secondary, and post-secondary instructional settings. The present interpreter was working with a Kindergarten student for about two months and was a veterinary assistant for the prior three years. She did not feel that she was at the High School level and was not comfortable voicing for Shannon.

Id. at 6 (emphasis added). The decision culminated in an order specifying 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.

Id. at 7 (emphasis added).

This decision, framed as it was, caused both parties to claim victory in the administrative proceedings. The parents claimed that the decision with respect to the qualifications of Shannon’s interpreter reflected a finding that Ms. Kane was not qualified to interpret at the high school level. In a letter to the Wheelers’ counsel dated April 24, 1990, counsel for the School District claimed the opposite, stating that “the program at issue, with the interpreter provided (Kane) is appropriate.”

Arguing that the real issue underlying the administrative proceedings had nothing to do with the appropriateness of Shannon’s program, the Wheelers filed an appeal to the Pennsylvania Secretary of Education through a document captioned “Exceptions, Request for Clarification of Hearing Officer’s Decision and Request for More Specific Order.”

On July 3, 1990, the Secretary of Education issued an opinion addressing the issues raised by the Wheelers, concluding that “[W]hile exceptions and answers have been made regarding numerous aspects of the hearing below, ... this appeal essentially turns upon the acceptable interpretation of the word ‘qualified’_” In re the Educational Assignment of Shannon W., Special Ed. Opinion No. 407, at 2. The Secretary then undertook “an examination of the functional role of the interpreter that has been promised by the District.” Id. at 4. Assessing this role, the Secretary wrote:

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 with students in general, but rather with one specific student. We hold instead that districts hiring interpreters to implement IEPs must make a conscious effort to provide what they have promised and find an individual who can accurately transmit information to the student in question. We further hold that, in 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.

Id. at 4-5 (emphasis added). He also concluded that “a related service provided by a district must be of reasonable and reliable *136quality.... [A]n interpreter providing the related service of essential communication must be able to pass an evaluation separate from any assessment of progress which the student succeeds in making with the aid of that service.” Id. at 5-6. The Secretary stressed the need for individualization in the selection of interpreters, indicating that someone able to sign with accuracy at the elementary level may not be qualified to sign in a high school setting. With respect to the qualifications of Ms. Kane in particular, the Secretary stated:

It is unclear whether or not the District has decided to transfer Teresa Kane to another student for the 1990-91 school year. 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 (emphasis added). The Secretary then ordered “that the District make a conscious effort, with the aid of an outside expert, to hire an interpreter for Shannon W. who can accurately transmit information to and from her in her specific academic setting.” Id. at 9.

Subsequent to this decision by the Secretary, the Wheelers filed suit in the United States District Court for the Middle District of Pennsylvania to recover under the EHA, attorneys fees and costs totalling, at that time, $98,496.18. In disposing of summary judgment motions filed by each party, the district court dismissed the Wheelers’ claim for attorneys fees based upon its finding that the Wheelers had not prevailed in the administrative due process proceedings and were not, therefore, entitled to counsel fees.

III.

Affirming the order of the district court, the majority articulates the standard for determining whether a party has prevailed for the purposes of a fee award. “We apply a two-part test ...: 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).” Majority at 131. Whether the Wheelers won relief on any of their claims is to be determined by a “liberal” comparison between the relief sought and obtained. Id. at 131.

Evaluating the facts of this case against the stated legal standard, the majority concludes that the Wheelers cannot qualify as prevailing parties for purposes of an award of attorneys fees. The majority looks first to the hearing officer’s opinion, stating that “[t]he hearing officer did not adopt any of the Parents’ proposed conclusions of law.” Majority at 130. In focusing upon the fact that the hearing officer did not adopt the exact language proposed by the Wheelers, the majority fails to consider the overall thrust of the hearing officer’s opinion which concludes that Ms. Kane was not, in fact, qualified to interpret for Shannon and that budgetary constraints would need to be reevaluated by the School District in order to attract an effective replacement for Kane. As has been noted previously, with respect to Kane’s qualifications, the hearing officer stated:

The interpreter for Shannon should have a degree of proficiency or experience to enable him or her to feel comfortable in a High School academic setting. There is clearly a gradient of content between elementary, secondary, and post-secondary instructional settings. [Ms. Kane] was working with a kindergarten student for about two months and was a veterinary assistant for the prior three years. She did not feel that she was at the High School level and was not comfortable voicing for Shannon.

Decision of the Hearing Officer, at 6 (citations omitted). The hearing officer also stated that “[Testimony from the sign language experts speaks to the lack of proficiency on the part of the interpreter in question.” Id. at 5 (citations omitted). *137These excerpts from the opinion establish that any interpreter hired for Shannon was required to have at least that proficiency which would enable him or her to “feel comfortable” and that Kane did not meet this standard.

The hearing officer also stressed the budgetary component involved in locating a replacement for Kane:

The success in finding an interpreter suitable for Shannon does seem to depend on the issue of compensation.... It does not seem reasonable to expect a positive reply from someone with training and/or experience to accept the position on an aide pay scale.

Id.

The hearing officer’s order,1 read in light of the preceding statements, clearly requires something of the School District which was not required prior to the initiation of administrative proceedings. First, the opinion and order establish that a given interpreter is not qualified to interpret for a particular student simply because the School District has pronounced him or her qualified. The interpreter must be proficient enough to “feel comfortable” in the assigned position. Second, the order required the School District to research budgetary options for increasing the pay scale available to interpreters.

While the hearing officer’s opinion may not have granted the Wheelers all that they had hoped for, it did establish that Kane was not a suitable interpreter for Shannon and imposed constraints in locating a replacement interpreter that had not been in place before. The lack of a perfect match between what was asked for and what was received does not, in my view, compel the conclusion that the Wheelers did not prevail before the hearing officer.

I also differ with the majority’s analysis of the relief granted by the Secretary of Education. The majority concludes that the Secretary’s decision, like that of the hearing officer, failed to grant significant relief to the Wheelers in that the Secretary denied the Wheelers’ request for a finding that Shannon’s interpreter was not qualified. The majority’s treatment of the Secretary’s opinion ignores the practical import of the opinion as a whole and belies the liberal standard for assessing prevailing party status upon which the majority purports to rely.

In proceedings before the Secretary of Education, the Wheelers sought an order requiring that the School District modify Shannon’s IEP to provide her with a qualified interpreter in accordance with Section 300.23 of the EHA regulations. The Wheelers also asked that the Secretary require the School District to advertise widely in order to hire an interpreter qualified under one of several stated standards which included the following:

(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.

The majority concludes that the Wheelers did not receive what they asked for and that, under the terms of the Secretary’s decision, the School District was permitted and continued to operate exactly as it had prior to that decision in securing an interpreter for Shannon. This simply is not the case.

I believe that any reasonable reading of the administrative opinions supports the conclusion that Shannon’s interpreter, Ms. Kane, was indeed found to be unqualified to interpret for Shannon and that the qualification standard set forth above was adopted by the Secretary. The Wheelers maintain that their goal in the administrative litigation was to have the School District secure an interpreter who could pass an evaluation conducted by an individual with credentials comparable to that of their two sign language and educational interpreting experts. This is what the Secretary ordered. The Secretary specifically *138held that “[consultation] 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.” In re the Educational Assignment of Shannon W., at 5. The order issued by the Secretary specified that the hiring of an interpreter for Shannon “be done with the aid of an outside expert who can accurately transmit information to and from her in her specific academic setting.” Id. at 9.

The parents’ claim to have prevailed in this matter centers on the required introduction into the interpreter hiring process of an outside expert who is, by the terms of the Secretary’s order, required to evaluate a prospective interpreter. “Without this safeguard, ... the Parents would be at the mercy of the Defendant which had no experts trained in sign language and educational interpreting, which had no standards by which to evaluate an interpreter and which was intent on paying such interpreter the salary of a classroom aide.” Brief of Appellant, at 20. As a result of the Secretary’s opinion, an outside sign language expert was used by the school district in the process of evaluating rather than simply locating prospective interpreters and a permanent interpreter qualified within the meaning of the stated standard was, in fact, hired.

In concluding that the Secretary’s opinion did accord relief to the Wheelers, I take issue with the majority’s conclusion that the School District made the identical use of outside experts before and after the Secretary’s decision. The School District submitted, and the district court considered, affidavits purporting to show that the School District consulted others about locating an interpreter prior to the time that the Secretary’s decision was rendered. The Wheelers contend that the only qualified outside expert consulted by the school district prior to the Secretary’s decision was Ms. Sarah Collins. According to the Wheelers, Ms. Collins, before the Secretary’s decision, was consulted only about locating a new interpreter for Shannon. After the decision, Collins was called upon to locate and evaluate prospective candidates.

The Parents thought they made it clear to the District Court that when the Defendant said it used an outside expert to find an interpreter before the Secretary’s decision that did not mean that an outside expert was ever used to evaluate prospective interpreters before the Secretary’s decision. The Parents won the right to have consultation and evaluation by an outside expert only after the Secretary’s decision.

Brief of Appellant, at 27 (emphasis in original).

The majority concludes that outside experts were consulted prior to the Secretary’s decision. It makes short shrift, however, of the distinction drawn by the Wheelers between the use of experts to find an interpreter and the use of experts to evaluate an interpreter. It was this evaluative component, which was missing from the hiring process prior to the Secretary’s opinion, that was critical to the Wheelers.

The totality of the record before us demonstrates that the litigation undertaken by the Wheelers was, at the very minimum, the catalyst that forced the School District to take steps to find an interpreter qualified to work with Shannon in particular2 and to incorporate the use of outside ex*139perts in the evaluation of prospective interpreters. The Wheelers did, in fact, secure benefits not previously extended to them, i.e., the right to have a prospective interpreter evaluated by an expert in sign language and to have the School District consider Shannon’s individual needs in the hiring of that interpreter. The fact that these benefits were secured through the administrative due process proceedings is, in my view, clearly sufficient to satisfy the threshold requirement for a fee award under the test set forth in the majority opinion.

IV.

Because I believe that the Wheelers were indeed prevailing parties for purposes of an award of attorney fees, I would reverse the order of the district court and direct that summary judgment be entered in favor of the Wheelers.3

. The order reads, in pertinent part, as follows:

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.

. Prior to the Secretary’s opinion, the School District maintained that Kane was an appropriate interpreter for Shannon. See the April 24, 1990 letter from counsel for the School District referred to at p. 135, supra. The Secretary’s opinion clearly established that this was not the case. The School District, under the terms of the Secretary’s opinion, would have been required to replace Kane. Kane's resignation during the course of the proceedings does not alter the fact that the Secretary’s opinion dictated a change in the School District’s approach to providing an interpreter for Shannon Wheeler. The majority’s assumption that the School District would have followed the course taken in securing a new interpreter even had there been no litigation is, at best, somewhat unrealistic considering all that has happened in this dispute.

. While the majority, in view of its holding, does not devote a great deal of discussion to this issue, I am compelled to note here my disagreement with the district court's conclusion that the decision in Muth v. Central Bucks School District, 839 F.2d 113 (3d Cir.1988) rev’d on other grounds sub nom., Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) deprived the Secretary of Education of the authority to render the opinion central to this case.

In Muth, we held that "employees of the state educational agency may not conduct a review proceeding under section 115(e)" and then found that "the Secretary of Education must be considered the equivalent of an employee of Pennsylvania's state education agency for purposes of the [EHA].” Id. at 123-24. Effective July 1, 1990, new regulations promulgated by the Department of Education eliminated the Secretary as an administrative decisionmaker. 29 Pa.B. 3339 (June 16, 1990), §§ 14.64, 14.71, 20 Pa.B. at 3355-56.

Muth's ultimate reversal on 11th Amendment grounds apparently created some confusion with respect to the continued vitality of the state educational due process scheme. Two district court decisions, issued subsequent to Muth but involving pre-amendment secretarial review, have given some effect to the Muth holding. In Johnson v. Lancaster-Lebanon Intermediate Unit 13, 757 F.Supp. 606 (E.D.Pa.1991) and Hulme by Hulme v. Dellmuth, 1991 WL 83115, 1991 Lexis U.S. Dist. 6503 (E.D.Pa.1991), district courts, conducting de novo review of claims raised in administrative proceedings, found Muth relevant to review of the administrative record. Citing cases holding that a district court must defer to the administrative agency, the district court in Johnson concluded that "[bjecause the Secretary was not impartial ... his decision carries no weight in this court’s review of the administrative record.” 757 F.Supp at 617.

In this case, neither the school district nor the Wheelers quarrel with the decision reached by the Secretary, although they differ in their interpretation of that decision for purposes of an award of attorneys fees. Where neither party challenges the decision on the merits, it is difficult to see how the impartiality issue central to Muth has any application. Furthermore, because the district court is not asked here to conduct substantive review of the merits of the Secretary’s decision, it need not look to Muth for guidance on the issue of to whom it should defer in considering the merits. The issue in Johnson and Hulme which required reference to Muth simply is not present here. Here, the district court is required only to interpret the administrative outcome, accepted by both parties, for purposes of determining an award of attorneys fees; there is no question with respect to deference and no defensible argument regarding impartiality. The rationale underlying the Johnson and Hulme decisions is, in my view, inapplicable.