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Using the Ten-day Offer to Deny Reasonable Attorneys’ fees Undermines IDEA

Tuesday, June 20, 2017   (0 Comments)
Posted by: Denise Marshall

COPAA filed an amicus brief on June 6, 2017 in support of reversal in the Third Circuit: Rena C. v. Colonial School District. David Berney, COPAA member, represented the family. In enacting the Handicapped Children’s Protection Act (HCPA) in 1986, Congress provided for attorneys’ fees for prevailing parents. Congress also sought to promote settlement by adopting a provision modeled on Rule 68 of the Federal Rules of Civil Procedure, encouraging schools to make written offers more than ten (10) days before the administrative hearing begins.  Parents retain their right to fees after rejecting a settlement offer if the relief obtained is more favorable to the parent than the settlement offer or, even if not more favorable, if they were otherwise substantially justified in rejecting the offer.  20 U.S.C. § 1415(i)(3)(D)(i) & (E). The district court wrongfully denied Rena C. recovery of attorneys’ fees incurred after Colonial School District’s (Colonial) ten-day settlement offer expired. 


Precisely because the stakes are so high, the terms of the offer must be explicit and clear.  A parent should not be required to guess how a court might interpret ambiguous language or whether a court might impute missing terms into the offer.  Basic principles of contract law require that any ambiguity in the offer must be construed against the drafter, i.e., the school.  The district court erroneously found obvious omissions ambiguous and then construed the offer in favor of the school.   A parent is substantially justified in rejecting an offer that does not include pendency and attorneys’ fees.  As Amicus demonstrates, the majority of parents of students with disabilities already are unable to afford legal representation, leaving many parents to proceed pro se or to forego seeking a legal remedy entirely.  This Court’s endorsement of a school’s tactical maneuver of using the ten-day offer to deny reasonable pre-offer attorneys’ fees for meritorious cases and simultaneously cut off post-offer fees would undermine the essential purposes of IDEA and have an extraordinary chilling effect on the willingness of parents to vindicate their children’s rights and their ability to obtain legal counsel to do so. Ellen Saideman, is the counsel of record in the Third Circuit, Andree Larose, Jessica Salonus and Selene Almazan also assisted in drafting and editing the brief.

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