Filed: Nov. 08, 2010
Latest Update: Feb. 21, 2020
Summary: Case: 09-50841 Document: 00511288059 Page: 1 Date Filed: 11/08/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 8, 2010 No. 09-50841 Lyle W. Cayce Summary Calendar Clerk EL PASO INDEPENDENT SCHOOL DISTRICT Third Party Plaintiff - Appellee v. MARK BERRY Third Party Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CV-76 Before HIGGINBOTHAM, SMITH, and HAYNES
Summary: Case: 09-50841 Document: 00511288059 Page: 1 Date Filed: 11/08/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 8, 2010 No. 09-50841 Lyle W. Cayce Summary Calendar Clerk EL PASO INDEPENDENT SCHOOL DISTRICT Third Party Plaintiff - Appellee v. MARK BERRY Third Party Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CV-76 Before HIGGINBOTHAM, SMITH, and HAYNES,..
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Case: 09-50841 Document: 00511288059 Page: 1 Date Filed: 11/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2010
No. 09-50841 Lyle W. Cayce
Summary Calendar Clerk
EL PASO INDEPENDENT SCHOOL DISTRICT
Third Party Plaintiff - Appellee
v.
MARK BERRY
Third Party Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CV-76
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Attorney Mark Berry (“Berry”) appeals an award of attorneys’ fees against
him resulting from litigation against the El Paso Independent School District
(“the District”) under the Individuals with Disabilities Education Act (“IDEA”),
20 U.S.C. § 1400.1 We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
1
The IDEA provides federal money to states to assist them in providing a “free
appropriate public education” (“FAPE”) to children with disabilities. 20 U.S.C. § 1400(c).
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No. 09-50841
I. Facts and Procedural History
This is the second appeal arising from litigation between M.L., as mother
and next friend of A.L., a minor child enrolled as a student in the District, and
the District. We previously affirmed both the district court’s dismissal of M.L.’s
IDEA complaint and the district court’s order allowing the District to reevaluate
A.L. without M.L.’s consent. M.L. ex rel. A.L. v. El Paso Indep. Sch. Dist., 369
F. App’x 573 (5th Cir. 2010) (unpublished). Here, we consider only whether the
district court erred in granting summary judgment to the District on its third-
party complaint requesting attorneys’ fees from Berry. We therefore give a brief
synopsis of the facts and procedural history as they relate to our review of the
attorneys’ fee award.
In 2005 and 2006, two separate Admissions, Review, and Dismissal
(“ARD”) Committees identified A.L. as a student requiring speech therapy
services under the IDEA.2 It is undisputed that A.L. missed some weekly
sessions during the 2006-07 school year due to a shortage of speech therapists
in the District. The District acknowledged this issue in a letter to M.L. and
offered services to compensate for missed time. However, on October 5, 2007, an
ARD Committee determined that A.L. no longer qualified for special education
services for speech impairment. M.L. disagreed with this finding and requested
a reevaluation of A.L. The Committee agreed to M.L.’s request and decided to
reconvene on October 22, 2007 to review the results of the reevaluation.
M.L. subsequently retained Berry and, on October 10, 2007, filed a due
process complaint with the Texas Education Agency (“TEA”) requesting that the
2
Under the IDEA, a disabled student is entitled to receive a FAPE that is tailored to
the student’s particular needs by means of an “individual educational program” (“IEP”), a
written statement prepared at a meeting attended by a qualified representative of the school
district, a teacher, the child’s parents or guardians, and when appropriate, the child. Cypress-
Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997). In Texas, the
individuals charged with preparing an IEP are known collectively as an ARD Committee.
Id.
2
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District: (1) continue providing special education services for A.L.; (2) provide
compensatory services for missed sessions; (3) conduct an additional ARD
Committee meeting to develop goals for A.L.’s compensatory speech therapy; and
(4) pay M.L.’s attorney’s fees.
Meanwhile, the ARD Committee reconvened on November 1, 2007 after
honoring Berry’s request to postpone the October 22nd meeting. Neither M.L.
nor Berry attended the November 1st meeting, even though Berry was told the
meeting would take place regardless of settlement negotiations. At that
meeting, the ARD Committee again concluded that A.L. no longer met eligibility
criteria for speech therapy services. However, because of the pending due
process complaint, the Committee recommended that A.L. remain in speech
therapy pursuant to the IDEA’s “stay put” provisions 3 and that, subject to
parental consent, he undergo another full, individual evaluation (“FIE”) to
determine whether he suffered from any other disabilities.4
The District sent Berry a copy of the ARD Committee meeting report and
a parental consent form for the FIE. The District also made a settlement offer
of one hour of compensatory services for each hour A.L. missed beginning in
2005 and attorney’s fees. M.L. and her counsel did not respond to this offer, and
M.L. refused to consent to the additional FIE for A.L.
After the filing of the due process complaint, the District made several
additional settlement offers to M.L. Two of these offers, sent in November of
3
The “stay put” provisions of the IDEA provide that “during the pendency of any
proceedings conducted pursuant to this section, unless the State or local educational agency
and the parents otherwise agree, the child shall remain in the then-current educational
placement of the child . . . .” 20 U.S.C. § 1415(j).
4
The IDEA has a comprehensive scheme to evaluate each student in order to meet the
educational goals of the IDEA, including reevaluation of the student after a designated time
period or as needed. 20 U.S.C. § 1414. However, a parent and the local educational agency
must agree to conduct a reevaluation of a child more frequently than once a year. 20 U.S.C.
§ 1414(a)(2)(B)(i).
3
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2007, again provided for one hour of compensatory speech therapy services for
each hour missed, as well as Berry’s requested attorney’s fees. The offers also
stated that the District would provide A.L. with an independent speech and
language evaluation, and a letter accompanying the offers stated that the
number of hours of compensatory services was open for discussion. Even though
these offers provided all requested relief, M.L. and Berry did not accept them.
Thereafter, the District moved to dismiss M.L.’s due process complaint as
moot because it had offered A.L. all requested relief. The District also filed a
counterclaim seeking to reevaluate A.L. without his mother’s consent. On
December 7, 2007, the TEA-assigned Special Education Hearing Officer
(“SEHO”) granted the District’s motion to dismiss after finding M.L.’s claims
moot because the District had offered all requested relief and the District was
in the process of correcting the problems M.L. raised before M.L. filed the due
process complaint. After a hearing on the District’s counterclaim, the SEHO
ruled against the District, finding that the IDEA prohibited A.L.’s reevaluation
because the District had already evaluated him once that year and M.L. refused
to consent to an additional evaluation.
Aggrieved by the dismissal of the due process complaint, M.L. filed an
original complaint in federal district court seeking reinstatement of the
administrative case, an order that A.L. receive a hearing, and attorney’s fees.
The District then filed a counterclaim seeking review of the SEHO’s decision
refusing to override M.L.’s consent and a third-party complaint against Berry for
attorneys’ fees as a “prevailing party” under the IDEA. In its third-party
complaint, the District alleged that Berry filed a complaint or subsequent cause
of action that was frivolous, unreasonable, or without foundation and that Berry
continued to litigate after the litigation clearly became frivolous, unreasonable,
or without foundation. See 20 U.S.C. § 1415(i)(3)(B)(i)(II). The District also
alleged that Berry presented the complaint or subsequent cause of action for an
4
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improper purpose, including to harass, cause unnecessary delay, or needlessly
increase the cost of litigation. See 20 U.S.C. § 1415(i)(3)(B)(i)(III).
In April 2009, the district court granted the District’s motion for summary
judgment on its counterclaim and denied M.L.’s motion for summary judgment
seeking to reinstate the administrative case (“April 2009 Order”). M.L. ex rel.
A.L. v. El Paso Indep. Sch. Dist., 610 F. Supp. 2d 582 (W.D. Tex. 2009). The
court found it undisputed that the ARD Committee determined first on October
5 and then again on November 1, 2007 that A.L. no longer had a speech
impediment and therefore did not require speech therapy services. M.L. did not
dispute these findings in either the due process or judicial complaints. Thus, the
district court dismissed M.L.’s claims for compensatory services as moot because
A.L. no longer had a disability requiring speech therapy. The district court also
ruled in the District’s favor on its counterclaim, effectively overriding the
requirement that the District obtain M.L.’s consent for A.L.’s reevaluation. In
an unpublished opinion, we affirmed the district court’s holdings on both issues.5
M.L. ex. rel. A.L., 369 F. App’x at 576 n.4.
Following the April 2009 Order, the District filed a motion for summary
judgment on its third-party complaint seeking attorneys’ fees from Berry. In
awarding fees to the District, the district court first noted that Berry did not
dispute that the District was the “prevailing party” and that the April 2009
Order was an enforceable judgment that caused a material alteration in the
parties’ relationship. In analyzing whether Berry continued to litigate
improperly, the district court made several findings as to Berry’s behavior based
upon the undisputed facts presented. First, Berry never contested the ARD
Committee’s decisions in 2007 that A.L. was no longer eligible to receive
compensatory services and, therefore, those claims were moot. Berry also
5
As to M.L.’s claims, we found that a request for “compensatory” speech therapy for a
non-existent disability did not present a “live” case or controversy. 369 F. App’x at 576 n.4.
5
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rejected the District’s settlement offers of full relief despite the arguably moot
claims. Finally, Berry stonewalled attempts to resolve any dispute with the
District by refusing to allow a reevaluation of A.L., by not participating in the
ARD Committee process, and by refusing the District’s efforts to provide A.L.
with a FAPE. Thus, the court found it had discretion to award attorneys’ fees
to the District because Berry continued to litigate a claim that had clearly
become frivolous, unreasonable, and without foundation. Although the District
sought over $80,000 in fees, the court awarded only $10,000 after concluding
that the District’s own failures in providing speech therapy services to A.L.
contributed to the existence of the initial dispute and that the District should not
recover for work done on its counterclaim.6 Berry timely appealed.
II. Standard of Review
We review a grant of summary judgment de novo, applying the same legal
standard as the district court. Septimus v. Univ. of Hous., 399 F.3d 601, 609
(5th Cir. 2005). Summary judgment is proper if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. F ED. R. C IV. P. 56(c). We view summary judgment evidence
in the light most favorable to the nonmovant, with all factual inferences drawn
in the nonmovant’s favor. Chiu v. Plano Indep. Sch. Dist.,
339 F.3d 273, 279 (5th
Cir. 2003). We may “affirm a grant of summary judgment on any grounds
supported by the record and presented to the [district] court.” Hernandez v.
Velasquez,
522 F.3d 556, 560 (5th Cir. 2008).
6
In relation to the District’s counterclaim, the district court concluded that it was
unclear whether the IDEA fee-shifting provisions contemplated an attorneys’ fee award for
counterclaims. Because the district court did not base the award on the counterclaim, we do
not reach this issue. We also assume without deciding that Berry’s complaint was an “action
or proceeding” under § 1415, as Berry waived any argument to the contrary by failing to raise
the issue until his reply brief. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“As a
general rule, this Court does not review issues raised for the first time on appeal.”).
6
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No. 09-50841
The IDEA provides a court with discretion to award attorneys’ fees to a
“prevailing party.” 20 U.S.C. § 1415(i)(3)(B)(i)(II). Whether a party qualifies as
a “prevailing party” is “a legal question subject to de novo review.” Bailey v.
Mississippi, 407 F.3d 684, 687 (5th Cir. 2005). Even if the standards for
awarding attorneys’ fees are met, the district court is vested with discretion as
to whether or not to award them. El Paso Indep. Sch. Dist v. Richard R.,
591
F.3d 417, 425 n.9 (5th Cir. 2009), cert. denied,
130 S. Ct. 3467 (2010).
III. Discussion
A. Our Jurisdiction To Hear the Attorneys’ Fee Claim
As a threshold matter, we conclude that we have jurisdiction to consider
the District’s attorneys’ fee claim, as the IDEA authorizes an action solely to
recover attorneys’ fees.7 Richard R., 591 F.3d at 422 n.4; P.N. v. Seattle Sch.
Dist.,
474 F.3d 1165, 1169S70, 1174 (9th Cir. 2007) (same). An appellate court
may consider whether a party is a “prevailing party” for purposes of an
attorneys’ fee award even if the underlying claim is dismissed as moot prior to
a final decision on the merits. Compare Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health & Human Res.,
532 U.S. 598, 603S05 (2001) (determining
whether one party was entitled to attorneys’ fees as a “prevailing party” even
though the underlying case was mooted by legislation eliminating the provisions
at issue), and District of Columbia v. Straus,
590 F.3d 898, 900S02 (D.C. Cir.
2010) (considering whether a school district was a “prevailing party” under the
IDEA after a hearing officer dismissed the underlying case as moot), with Lewis
7
We note that other fee-shifting provisions, such as 42 U.S.C. § 1988, do not allow suits
solely for attorneys’ fees incurred in non-judicial proceedings. Citizens for a Better Env’t v. The
Steel Co., 230 F.3d 923, 928 (7th Cir. 2000); W.G. v. Senatore,
18 F.3d 60, 64 (2d Cir. 1994)
(noting that fee-shifting provisions cannot themselves confer subject matter jurisdiction, but
must instead be read in conjunction with substantive statutes to establish proper jurisdiction
over fee applications). Thus, a lack of subject matter jurisdiction over the underlying
substantive claim bars a court’s jurisdiction over the accompanying § 1988 claim for attorneys’
fees. Here, however, both the SEHO and the district court had subject matter jurisdiction over
the claim at the outset.
7
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v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990) (stating that an interest in
attorneys’ fees is insufficient to create an Article III case or controversy where
none existed on the merits of the underlying claim), and Board of Educ. v.
Nathan R.,
199 F.3d 377, 381S82 (7th Cir. 2000) (refusing to consider whether
parents qualified as “prevailing parties” on certain moot claims because the
court had no jurisdiction over the merits of those underlying claims).
Here, M.L.’s claims against the District were not moot at the time of the
filing of the due process complaint or the appeal to the district court, because
the parties disputed the effect of the District’s failure to provide the originally
required hours of compensatory speech therapy services.8 This dispute became
moot only after Berry failed to contest the ARD Committee’s findings and the
district court found by a preponderance of the evidence that A.L. no longer
qualified for compensatory services. We have found that “a determination of
mootness neither precludes nor is precluded by an award of attorneys’ fees.”
Staley v. Harris Cnty., 485 F.3d 305, 314 (5th Cir. 2007) (en banc). Rather, the
attorneys’ fee question turns on a wholly independent consideration: whether
the plaintiff is the “prevailing party.”
Id. (citing Doe v. Marshall,
622 F.2d 118,
120 (5th Cir. 1980)). Therefore, because we have jurisdiction over the
attorneys’ fees claim, we turn to whether the District qualifies as a “prevailing
party.”
B. The District Qualifies as a “Prevailing Party”
We conclude that Berry waived any argument on the threshold question
of whether the District was a “prevailing party” for purposes of an attorneys’
fee award under the IDEA. We have applied the Supreme Court’s decision in
Buckhannon in the IDEA context and have held that, to be a “prevailing
8
Because the SEHO and the district court had jurisdiction over the case when it was
filed, we do not decide whether we would have jurisdiction to award attorneys’ fees under the
IDEA if M.L.’s complaint was moot at the outset of the litigation.
8
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party,” a litigant must procure “some judicial imprimatur on a material
alteration of the legal relationship.” 532 U.S. at 603S05 (rejecting the “catalyst
theory” and finding that a “defendant’s voluntary change in conduct, . . . lacks
the necessary judicial imprimatur on the change” to warrant “prevailing party”
status); Richard
R., 591 F.3d at 421S22 (finding that, in the IDEA context, a
“prevailing party” is one that attains a remedy that both (1) alters the legal
relationship between the school district and the handicapped child and (2)
fosters the purposes of the IDEA).
Berry waived any argument on this issue by not refuting the District’s
assertion that it qualified as a “prevailing party” in his response to the
District’s motion for summary judgment on its third-party complaint. The
scope of appellate review on a summary judgment order is limited to matters
presented to the district court. Keelan v. Majesco Software, Inc., 407 F.3d 332,
339 (5th Cir. 2005).9 If a party fails to assert a legal reason why summary
judgment should not be granted, it waives that ground and it cannot be
considered or raised on appeal. Keenan v. Tejeda,
290 F.3d 252, 262 (5th Cir.
2002) (finding issues were not preserved on appeal when they were not
mentioned, much less argued, in various summary judgment motions and
responses). We do not consider such issues raised for the first time on appeal.
United States v. Jackson,
426 F.3d 301, 304 n.2 (5th Cir. 2005);
Yohey, 985 F.2d
at 225.10
9
Berry’s cursory reference to the lack of a basis for the District’s “prevailing party”
status in his separate motion to dismiss the third-party complaint—filed and denied before
the motion for summary judgment in question—will not suffice to preserve the issue. This
motion was not a “response” to the summary judgment motion, and even if it had been, Berry
provided no legal support for his argument. See Maverick Recording Co. v. Harper, 598 F.3d
193, 198 (5th Cir. 2010), pet. for cert. filed, No. 10-94 (U.S. May 26, 2010) (citing
Keelan, 407
F.3d at 339, and finding that a party did not preserve a point for appeal by presenting it in
cursory fashion in a response to a summary judgment motion).
10
In any event, the April 2009 Order did cause a material alteration in the parties’
relationship, as the district court found that M.L.’s claims were moot only after first finding
9
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Because Berry waived any argument that the District was not a
“prevailing party,” we turn to the question of whether the district court erred
in awarding attorneys’ fees to the District.11
C. Berry Continued To Litigate Claims After They Became Frivolous
The IDEA provides that: “[i]n any action or proceeding brought under
this section, the court, in its discretion, may award reasonable attorneys’ fees
. . . to a prevailing party who is a State educational agency or local educational
agency against the attorney of a parent who files a complaint or subsequent
cause of action that is frivolous, unreasonable, or without foundation, or
against the attorney of a parent who continued to litigate after the litigation
clearly became frivolous, unreasonable, or without foundation . . . .” 20 U.S.C.
§ 1415(i)(3)(B)(i)(II) (emphasis added). In a prior case involving Berry, we
noted that extended litigation under the IDEA is disfavored due to the heavy
costs it imposes on litigants and the resulting delays in implementing an
appropriate educational plan for disabled children. Richard R., 591 F.3d at
by a preponderance of the evidence that A.L. no longer suffered from a speech impediment and
was therefore ineligible for compensatory services. Such a finding grants the District judicial
relief by foreclosing M.L.’s claim that the District must provide compensatory services to A.L.
See District of Columbia v. Jeppsen, 514 F.3d 1287, 1290 (D.C. Cir. 2008) (noting that “a
defendant might be as much rewarded by a dispositive order that forever forecloses the suit
on a procedural or remedial ground as by a favorable judgment on the merits”); Citizens for
a Better
Env’t, 230 F.3d at 930 (holding that “when a dismissal for want of jurisdiction
forecloses the plaintiff’s claim, the defendant is the ‘prevailing party’”). Thus, we conclude
that this case is distinguishable from Straus, repeatedly cited in Berry’s brief.
See 590 F.3d
at 901S02 (finding that school was not a “prevailing party” when the SEHO dismissed the case
as moot solely because the school offered complete relief).
11
Because we find that the District is a “prevailing party” under § 1415(i)(3)(B)(i)(II),
we do not address the District’s alternative argument that it qualifies as a “prevailing State
educational agency or local educational agency” entitled to attorneys’ fees under §
1415(i)(3)(B)(i)(III).
10
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No. 09-50841
429 n.14. The IDEA endorses settlement agreements and envisions that
parties will cooperate in resolving disputes.12 Id. at 425S26.
Keeping the purposes of the IDEA in mind, we conclude that the district
court did not err in awarding fees to the District under the unique facts of this
case.13 Even if the initial filing of M.L.’s due process complaint was reasonable,
the IDEA allows for an award of attorneys’ fees for continuing to litigate after
a claim clearly becomes frivolous, unreasonable, or without foundation.14
During the course of the litigation, Berry never challenged the ARD
Committee’s findings that A.L. no longer qualified for compensatory speech
therapy services. Not only did Berry continue to litigate claims for services
that were unnecessary perhaps as early as October 5, 2007, but also Berry
advised his client not to accept the District’s offers of full relief. Cf. District of
Columbia v. Ijeabuonwu,
631 F. Supp. 2d 101, 105 (D.D.C. 2009) (granting a
motion for summary judgment for attorneys’ fees under the IDEA after finding
that a party was not reasonable to continue through the administrative process
after it received all requested relief, as this left no substantive disputes to
litigate).
12
For example, the IDEA bars an award of attorneys’ fees for work performed after a
written settlement offer if that work does not produce more favorable results than the offer.
20 U.S.C. § 1415(i)(3)(D)(i). The IDEA also provides for a reduction in a fee award when a
parent or parent’s attorney unreasonably protracts final resolution of a controversy. 20 U.S.C.
§ 1415(i)(3)(F)(i); See Richard R., 591 F.3d at 429S30 (concluding that the district court abused
its discretion in awarding attorneys’ fees to the plaintiff for work done before a written
settlement offer providing all requested relief, as refusing to accept that offer constituted
unreasonable protraction of the litigation); Douglas W. ex. rel. Jason D.W. v. Hous. Indep. Sch.
Dist.,
158 F.3d 205, 211 (5th Cir. 1998) (finding that failure to settle can constitute protraction
under § 1415(i)(3)(F) and thus warrant a reduction in a parent’s attorneys’ fee award).
13
Berry does not contest the district court’s calculation of the attorneys’ fee award or
its decision to reduce that award. Thus, we only consider Berry’s challenge to the awarding
of any attorneys’ fees at all.
14
Notably, the district court did not base the attorneys’ fee award on the initial stages
of litigation.
11
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No. 09-50841
Berry insists that “refusing to accept a settlement offer” cannot be
grounds for an attorneys’ fee award and justifies the rejection of the District’s
offers by citing alleged ambiguities in the case law as to their judicial
enforceability.15 Berry’s arguments are tenuous at best, as the IDEA provides
for the enforceability of settlement agreements16 and Berry seemed to concede
that one of the November 2007 offers was enforceable in his response to the
District’s motion for summary judgment.17 Even assuming that it was
reasonable to reject the District’s offers, this case presents more than a “refusal
to settle.” Instead, this case involves an attorney repeatedly prolonging
litigation and stonewalling efforts to conclude it to the detriment of his
client—A.L.—who continued receiving services under an old and unnecessary
plan while the “grown-ups” fought.
As further support for the award, the district court noted that Berry
continued to resist the District’s efforts to provide A.L. with a FAPE almost a
year after filing the due process complaint and ten months after the District
offered all requested relief. As an example of Berry’s resistance, the court cited
an incident where Berry and M.L. attended an ARD Committee meeting on
October 2, 2008 only to announce that they would rely on the IDEA’s “stay put”
provisions and would not agree to any changes to A.L.’s IEP. The two then left
15
Specifically, Berry argued that the District’s settlement offers constituted “private
settlement agreements” and that, based on a district court decision, such agreements would
lack force in either federal or state court. See El Paso Indep. Sch. Dist. v. Richard R., 567 F.
Supp. 2d 918, 934 (W.D. Tex. 2008). However, the district court in this case found that the
District’s settlement offers were substantively different than the offer at issue in Richard R.
Most notably, the offer in Richard R. did not allow for substantive judicial review, while at
least one of the District’s proposed settlement agreements stipulated to the enforceability of
the agreement in a state or federal court.
16
See 20 U.S.C. § 1415(f)(1)(B)(iii)(II).
17
Berry stated that the District’s second settlement agreement would be enforceable
pursuant to § 1415(e)(2)(F)(iii), but M.L. did not accept it because it allegedly deprived her of
the right to contest an ARD Committee decision to remove A.L. from special education.
12
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No. 09-50841
the meeting. The district court found that Berry’s stonewalling tactics resulted
in the continuation of services for A.L. under a three-year old IEP for a speech
impediment from which he no longer suffered. At the same time, Berry and
M.L. refused to allow the District to evaluate A.L. for services from which he
might actually benefit. We agree with Berry that attorneys’ fees against the
parents’ attorney in an IDEA case are not automatic and must be based on
unreasonable or harassing conduct. Given Berry’s extreme and—we hope—
unique combination of behaviors, including the refusal to accept all offered
relief, the continued litigation of a claim for compensatory services arguably
unnecessary as early as October 2007, and stonewalling tactics, we conclude
that the district court properly determined from the undisputed evidence that
Berry continued to litigate claims after they clearly became frivolous,
unreasonable, and without foundation such that an award of attorneys’ fees to
the District was permissible.
D. Berry’s Rule 11 Argument
Berry provides no legal authority for his argument that the District was
required to comply with Rule 11’s “safe harbor” provisions when bringing a
claim for attorneys’ fees under the IDEA. As the District sought attorneys’ fees
under the IDEA, not Rule 11, this argument lacks merit. Douglas W., 158 F.3d
at 210S11 n.4 (“failure to provide any legal or factual analysis of an issue on
appeal waives that issue”).
IV. Conclusion
We AFFIRM the district court’s grant of summary judgment for the
District on its attorneys’ fees claim against Berry.
13
