News

On December 16, 2009, the Fifth Circuit Court of Appeals issued an important ruling in a case involving attorneys' fees in special education disputes. The key fact in this case was that the lower court's judgment contained exactly the same relief that the District originally offered the parents at a resolution session prior to a formal hearing. Because the parents continued to litigate the dispute for over three years after the settlement offer, the Fifth Circuit held that resolution of the dispute was unreasonably delayed, contrary to the intent of the IDEA. (The case is El Paso Ind. Sch. Dist. v. Richard R, __ F.3d __ 2009 WL 4828747 (C.A. 5 (Tex.)). (See p. 22 of the February 2010 issue of the Legal Digest for a detailed summary.)

Joe Tanguma, an attorney at Walsh, Anderson, Brown, Gallegos & Green, P.C., argued the case before the Fifth Circuit on behalf of the El Paso Independent School District. In the following interview, we asked Tanguma to reflect on his experience with Richard R. and its significance for other districts.

TSALD: How did you prepare for oral argument?

JT: Well, in addition to just immersing myself in the record, the briefing and all of the cases cited by the parties, I read all of the cases that the panel of Fifth Circuit judges had written that were relevant to the issues in our case, and listened to several oral argument recordings in which the Fifth Circuit judges had participated. I also had attorneys within our firm stand in as the Fifth Circuit in a moot court oral argument session. (To hear the oral argument in this case, go to: http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx?prid=173215.)

TSALD: How did you open your argument?

JT: I told the Court, the reason we are here is because the parents, through their attorney, refused to take yes for an answer.

TSALS: What did you mean by that?

JT: The parents wanted the District to evaluate their son for special education, which requires parental consent. When the parents requested the evaluation, EPISD set up a meeting in order to obtain consent, but 40 minutes before the meeting was supposed to begin, the parents canceled. The next day they filed a due process complaint and started the process of seeking an order to compel the District to conduct an evaluation. EPISD made it perfectly clear from the beginning that it was willing to conduct the evaluation and that litigation was unnecessary. The parents consistently refused to accept a settlement or resolution agreement giving them everything they were seeking, which ultimately resulted in delaying their child's evaluation by seven months. Instead, the parents insisted upon an order from the hearing officer.

TSALD: Do you do a lot of work in special education law?

JT: It has become an area of focus for me. When I was first hired at Walsh, Anderson I mostly did general ed. Then I started working on a special ed appeal with Nona [Matthews], and it was interesting to me, so I quickly went in that direction. Now I love it! It's interesting and challenging, it has its own language. I find it intellectually stimulating.

TSALD: When did you first become involved with this case?

JT: I have represented the District in this case now for over three years. I represented the school district at district court and, of course, the Fifth Circuit.

TSALD: Did you expect to prevail in the Fifth Circuit?

JT: I was cautiously optimistic. Statistically, only a very small amount of civil appeals get overturned. But the law was on our side. The intent of the IDEA would not be furthered based on upholding the district court's opinion.

TSALD: In plain language, what is new as a result of the Fifth Circuit's holding?

JT: When a district says to a parents' attorney: "we're willing to give you everything you've asked for, all of the educational services and a reasonable amount of attorneys' fees," and when the attorney says "no—I am seeking an order from a hearing officer based on my belief that you aren't going to do what you say you're going to do"—the Fifth Circuit said: No. You are not going to be rewarded with attorney fees; you are going to be held to have unreasonably delayed and protracted litigation.

TSALD: Am I correct that the District offered some amount of attorney fees as part of the original settlement offer?

JT: Yes, the District offered $3,000 in fees, and we asked for a statement of his fees at the resolution session. He refused to specify the amount to the District at that time or throughout the due process litigation. Later in district court, we learned that we were within $1,000 of the amount he had billed up to the point of the resolution meeting. I told the Fifth Circuit, if he had told us the amount back when we asked for it, basically, we wouldn't be here.

TSALD: What advice do you have for school districts based on this case?

JT: Richard R. really emphasizes the IDEA 2004 resolution session that is required to take place within 15 days of receipt of the due process complaint. Districts shouldn't waive them except in very exceptional circumstances. I would advise districts to take the resolution session very seriously. Have someone there from the district who is authorized to offer settlement and encourage meaningful participation from the parents.

Of course, in our case, the attorney and parents walked out after five minutes. If you're not given the opportunity to have a meaningful discussion, at least document that so you're prepared to defend yourself later on. Be prepared to offer in writing what you're willing to do, and follow up afterwards.

TSALD: Any advice for districts dealing with multiple or difficult cases of litigation?

JT: Always stay focused on what's best for the children. That's something El Paso was really good at throughout this experience. Also, it's good to make it clear in writing from early on in a "prior written notice"—even before a due process complaint has been filed if the district knows about a problem-- that there is not really a dispute, there's no need for litigation, that the district is willing to do whatever needs to be done. If the district does not find out about the problem before the due process complaint is filed, then it is important to make clear early on in the 10-day prior written notice response, that there is not really a dispute. Districts should treat that [prior written notice] as a mechanism to show that we're committed to finding a resolution and we don't need to go to hearing. It's really the intent of the IDEA; the IDEA sets forth a resolution process which is intended to minimize litigation. Districts can use those statutory provisions for their benefit.

TSALD: Anything else to add?

JT: I'm really happy for the District. I think this decision will be very beneficial for public school districts across the Fifth Circuit and should definitely send a clear message to parents and their attorneys that they have their own obligations under the IDEA as well, which includes the duty to meaningfully participate in a school district's efforts to resolve disputes under the IDEA without the need for litigation.

Joe Tanguma will be arguing before the Fifth Circuit again in early March, in A.O. as next friend of M.W. v. El Paso Ind. Sch. Dist.