Before
Thompson, Kayatta and Barron,
Circuit Judges.
December 9, 2014
Id.
See 21-2-54
300.502.
The outcome of this appeal turns in part on what the
record shows about how well the School Committee performed an
evaluation of the mother's child.
hold
the
Agreement
District
relieves
Court
the
-2-
rightly
School
concluded
Committee
of
the
any
P.J. is
S.
contends
the
Rhode
Island
statute
and
two
independent
evaluations
of
P.J.
The
first
is
an
evaluation,
which
would
The second is a
evaluate
P.J.'s
They
-3-
Id. 300.304(b)(1)(ii).
The IEP sets forth the services a disabled child will
receive
and
the
300.320(a).
educational
goals
for
that
child.
Id.
for
"independent"
evaluations.
For
that
type
of
its
own
"appropriate."
evaluation
well
enough
for
it
to
be
deemed
-4-
occupational
independent
therapy
evaluation
evaluation.
But
the
clearly
part
does
that
require
the
School
Committee
to
pay
for
require
addresses
an
the
It could be read
an
independent
As we will
Joanna S.
first made the evaluation request that gave rise to this appeal in
February of 2012.
"due
process
complaint."
IDEA
and
the
Rhode
Island
laws
Id. 300.507(a)(1).
Such a complaint
over
placement
of
the
[a
"identification,
disabled]
child
-5-
evaluation,
or
the
or
educational
provision
of
[free
These
evaluations of P.J.
Before any administrative proceeding began, however, the
School Committee agreed to a settlement with Joanna S.
settlement resolved Joanna S.'s due process complaint.
That
In the
occupational therapy."
request
evaluations
for
complaint.
the
other
she
had
demanded
in
her
-6-
See id.
The
Hearing
Officer
thus
ordered
the
School
instead
to
perform,
the
other
(the
psychoeducational
evaluation).
The School Committee responded with a suit in federal
District Court in Rhode Island. The School Committee's suit rested
on a provision of IDEA that allows "any party aggrieved by the
findings and decision" of an IDEA hearing officer to "bring a civil
action . . . in a district court of the United States."
20 U.S.C.
on
cross
motions
for
summary
judgment,
the
District Court found the administrative record did not support the
Hearing
Officer's
order
that
the
School
Committee
fund
an
The District
and
the
Hearing
Officer,
we
consider
separately,
Gonzlez
v. P.R. Dep't of Educ., 254 F.3d 350, 352 (1st Cir. 2001).
For
-9-
Id.;
Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 52-53 (1st Cir.
1992).
Sebastian M. v. King
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35-36 (1st Cir.
2012)). Moreover, we have said before that, in cases of this sort,
summary judgment motions are "simply a vehicle" for providing
review of the underlying administrative ruling, and that is the
case here.2
III.
We start with the occupational therapy evaluation.
The
evaluation
the
School
Committee
did
perform
was
"appropriate" and thus that the School Committee did not need to
pay for an independent one.
the
School
Committee
not
consider
She
"information
-11-
Id.
She found
The Hearing
School
Committee's
occupational
therapy
evaluation.
We
find
decision.
The
first
of
the
disputed
Hearing
Officer
findings
-12-
record
similarly
supports
the
District
Court's
addition,
the
record
shows
the
evaluator
also
School,
Wolf
including
the
School's
occupational
therapist,
-13-
Court
noted,
the
Hearing
Officer
made
And, as the
no
adverse
The
The
worry is that school districts will put off paying for a test
performed independently by adding on new tests to correct the
claimed flaws in the initial one they performed.
But there is no evidence that is what happened here. The
record does not show the Wolf School performed its evaluations in
response to Joanna S.'s complaint for an independent evaluation,
let
alone
that
it
performed
them
to
delay
payment
for
an
independent one. Instead, it appears from the record that the Wolf
School performed the evaluations in the course of educating P.J.
and long before Joanna S. requested an independent evaluation. The
-14-
"supplemental"
in
the
potentially
problematic
sense
the
of
assessment
tools
and
strategies"
to
make
up
an
21-2-54 R.I.
Code R. 300.304(b)(1).
Finally, we conclude the record supports the District
Court's rejection of the Hearing Officer's third disputed finding:
that
although
the
School
Committee's
evaluation
found
P.J.'s
occupational
therapy
report
does
define
"Typical
Performance."
The
report
explains
that
scores
marked
as
"Typical
And
is
meaningful.
The
report
contrasts
"Typical
"indicate[s]
questionable
areas
of
sensory
processing
-15-
Hearing
Officer's
otherwise
unchallenged
finding
that
educators
found
adequate
(together
with
their
own
We thus
the
School
Committee
performed
to
have
been
"appropriate."
IV.
That brings us to the dispute over the psychoeducational
evaluation.
evaluation,
not
one
of
the
four
evaluations
the
School
That is so,
-16-
Her
process"
and
"resolution
process"
to
resolve
20 U.S.C.
R. ex rel. R.R., 591 F.3d 417, 427 (5th Cir. 2009) (citing 20
U.S.C. 1415(f)).
of
jurisdiction
in
those
subsections
to
consider
the
in
this
case
came
-17-
from
separate
provision,
in
federal
district
court.
We
have
appellate
Bos., L.L.C., 591 F.3d 32, 35 (1st Cir. 2010) (relying on a statelaw contract settling a trademark dispute); D.R. ex rel. M.R. v. E.
Brunswick Bd. of Educ., 109 F.3d 896, 898 (3d Cir. 1997) (relying
on a state-law contract settling an IDEA claim); see also Osborn,
22 U.S. (9 Wheat.) at 822 (explaining there is no constitutional
rule in federal-question cases that "the judicial power . . .
extend[s] . . . to those parts of cases only which present the
particular question involving" federal law).
-18-
Cf. Mayhew v.
Cir.
Nov.
17,
2014)
(exercising
jurisdiction
over
we
may
consider
the
effect
of
the
Settlement
Agreement does not mean it bars Joanna S.'s request regarding the
psychoeducational evaluation.
Court, frame the issue of the Agreement's effect as one within the
domain of "res judicata."
In this case as in
that one, however, "the label does not matter; the question is the
scope" of the Settlement Agreement.
Id.
nonetheless turn around the next day and demand the foregone
evaluations anew.
See
AccuSoft Corp. v. Palo, 237 F.3d 31, 40 (1st Cir. 2001) (explaining
that
intent
of
the
parties
is
one
factor
in
interpreting
settlement agreement).
In its brief, the School Committee took the categorical
position that the Agreement resolved Joanna S.'s demands for
evaluations at least through the end of the 2012-2013 school year.
But the School Committee abandoned that position at oral argument.
It instead favored a narrower focus on changed circumstances.
agree with the School Committee's revised approach.
We
The Agreement
The
Because
unforeseeable
events
may
give
rise
to
-21-
On
this reading, Joanna S. still faces a hurdle when she makes postAgreement requests for evaluations not among those agreed to in the
settlement. Such requests, to survive the settlement, must rest on
conditions that arose after she entered into that Agreement.
This reading of the Agreement also accords with the
approach the Third Circuit took in construing a similar settlement
agreement.
It
-22-
the way Joanna S. does (as requiring the School Committee to fund
an independent psychoeducational evaluation) or as the District
Court
did
(as
requiring
the
School
Committee
to
perform
Mkt. Inv., LLC v. Gonzlez-Toro, 520 F.3d 58, 65 (1st Cir. 2008).
And nothing in the Hearing Officer's decision suggests the order
rests on a new, post-settlement development.
about
obtaining
psychoneurological
evaluation
to the need to identify whether P.J. has dyslexia, but she claims
-23-
she was already concerned about dyslexia in April of 2012 when she
signed the Settlement Agreement.5
At oral argument, Joanna S.'s counsel did assert for the
first time that P.J.'s extended absence before he began attending
the Wolf School constituted a changed circumstance -- as he stayed
out of school after the settlement until the start of the next
school year.
Agreement
by
conclusory contention.
at
least
month
--
supports
that
Such a bare
like
the
District
Court,
but
for
slightly
Committee
from
having
to
pay
for,
or
conduct,
the
The
She suggests
sua
sponte
nature
removes
it
from
the
scope
of
the
settlement.
But even if the Settlement Agreement would for some
reason not bar a sua sponte order, nothing in the record suggests
this order was in fact issued sua sponte.
Black's Law
characterize the order in that way. Rather, she based her order on
Joanna S.'s past "requests" and "concerns."
of the psychoeducational evaluation the Hearing Officer ordered -"reading, writing, math, sensory difficulty, written language,
executive function, behavior, independent functioning, difficulty
with balance and gross motor skills, and assistive technology if
deemed necessary" -- appears directly responsive to the kind of
-25-
Committee's
due
process
complaint.6
In
addition,
the
We
And,
because we conclude the order was not issued sua sponte, we need
not address what the effect of the Settlement Agreement on a sua
sponte order would have been.
V.
One issue remains -- Joanna S.'s request for attorneys'
fees.
20 U.S.C.
Court,
the
School
Committee
left
one
aspect
of
the
Hearing
See A.R.
ex. rel. R.V. v. N.Y. City Dep't of Educ., 407 F.3d 65, 75 (2d Cir.
2005) ("[A] plaintiff who receives [hearing officer]-ordered relief
on the merits in an IDEA administrative proceeding is a 'prevailing
party.'
-27-
We also
-28-