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• 9TH CIRCUIT COURT

DALE LUCHT and TERRY LUCHT,
No. 99-35733
Plaintiffs-Appellees,
D.C. No.
v.
CV-98-01375-ST
MOLALLA RIVER SCHOOL DISTRICT,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding

Argued and Submitted
July 11, 2000--Portland, Oregon

Filed September 5, 2000

Before: Warren J. Ferguson, Susan P. Graber, and
William A. Fletcher, Circuit Judges.

Opinion by Judge Graber

_________________________________________________________________

COUNSEL

Richard G. Cohn-Lee and Andrea L. Hungerford, The
Hungerford Law Firm, West Linn, Oregon, for the defendant-
appellant.

Dana R. Taylor, Hagen, Dye, Hirschy & DiLorenzo, P.C.,
Portland, Oregon, for the plaintiffs-appellees.

Philip Schradle, Chief Civil Attorney, Oregon Department of
Justice, Salem, Oregon, for the amicus curiae.

_________________________________________________________________

OPINION

GRABER, Circuit Judge:

Plaintiffs Dale and Terry Lucht have an autistic son who
lives within the area served by Defendant, the Molalla River
School District. Plaintiffs' son is entitled to special-education
benefits under the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. SS 1400-1490. After making several infor-
mal complaints to Defendant regarding their son's educational
program, Plaintiffs filed a complaint with the Oregon Depart-
ment of Education (Department) pursuant to Oregon's Com-
plaint Resolution Procedure (CRP), provided by Oregon
Administrative Rule 581-001-0010 (recodified at 581-015-
0054). In that complaint, Plaintiffs alleged that Defendant had
committed several violations of the IDEA in the course of
educating their son.

The Department investigated Plaintiffs' complaint and con-
cluded that Defendant had violated several provisions of the
IDEA. The Department ordered Defendant to convene an
Individualized Education Program (IEP) meeting to address
the errors that it had identified. As instructed, Defendant held
several IEP meetings to formulate a new IEP for Plaintiffs'
son. Plaintiffs attended the IEP meetings and, in at least three
of those meetings, were represented by a lawyer. The IEP
meetings resulted in the formulation and adoption of a revised
IEP for Plaintiffs' son, which the parties agree complies with
the IDEA.

Plaintiffs then brought this action in federal district court,
seeking to recover the attorney fees that they had incurred in
the Department-ordered IEP meetings attended by their law-
yer. After the parties filed cross-motions for summary judg-
ment, the district court adopted the magistrate judge's
recommendation and granted Plaintiffs' request for attorney
fees. Defendant appeals from the district court's decision,
asserting that the IDEA does not allow Plaintiffs to recover
their attorney fees for their lawyer's attendance at the IEP meet-
ings.1 We affirm.

STANDARD OF REVIEW

We review de novo a district court's grant of summary
judgment. See Burrell v. Star Nursery, Inc., 170 F.3d 951, 954
(9th Cir. 1999). Summary judgment is appropriate if the
record, when viewed in the light most favorable to the non-
moving party, shows that there is no genuine issue of material
fact and that the moving party is entitled to summary judg-
ment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
DISCUSSION

A. There are two ways to bring an IDEA challenge.

[1] States that receive IDEA funds must "establish and
maintain procedures . . . to ensure that children with disabili-
ties and their parents are guaranteed procedural safeguards
with respect to the provision of free appropriate public educa-
tion." 20 U.S.C. S 1415(a). The IDEA itself provides for an
"impartial due process hearing" process. 20 U.S.C.
S 1415(f)(1).2 That process includes the right to counsel, the
right to present evidence, and the right to present, confront,
and compel the attendance of witnesses. See 20 U.S.C.
S 1415(h). Additionally, the parent of a disabled child has the
right to appeal the final decision of the administrative agency
to the district court. See 20 U.S.C. S 1415(g) & (i).

[2] An impartial due process hearing, however, is not the
only way in which the parents of a disabled child can force
their school district to comply with the IDEA. Parents also
can file a complaint pursuant to a state's CRP. Unlike the
impartial due process hearing that is expressly provided in
S 1415 and is detailed in the regulations promulgated pursuant
to it, see 34 C.F.R. SS 300.508-.513, the CRP is described
only in the regulations, see 34 C.F.R. SS 300.660-.662.3
Under the CRP regulations, a State Educational Agency
(SEA) must carry out an independent on-site investigation,
give the complainant an opportunity to supply additional
information about the allegations, determine whether the
school district is violating the IDEA and, within 60 days of
the filing of the complaint, issue a written decision containing
factual findings, conclusions, and the reasons for the final
decision. See 34 C.F.R. S 300.661. In addition, the SEA's
decision must "[i]nclude procedures for effective implementa-
tion of the SEA's final decision," including, if needed, "(i)
[t]echnical assistance activities; (ii) [n]egotiations; and (iii)
[c]orrective actions to achieve compliance. " 34 C.F.R.
S 300.661(b)(2).

B. The IDEA provides for attorney fees.

1. Jurisdiction

[3] Title 20 U.S.C. S 1415(i)(3)(B) provides that, "[i]n any
action or proceeding brought under this section, the court, in
its discretion, may award reasonable attorneys' fees as part of
the costs to the parents of a child with a disability who is the
prevailing party." We first must consider whether, under that
statute, the district court can hear an action such as this one.
Although we have not expressly so held before today, our
prior cases imply that the district court has jurisdiction over
a case in which fees are sought although liability is estab-
lished outside the district court proceeding itself. See Barlow-
Gresham Union High Sch. Dist. No. 2 v. Mitchell, 940 F.2d
1280, 1285 (9th Cir. 1991) (allowing "the prevailing parents
to recover attorneys' fees when settlement is reached prior to
the due process hearing"); McSomebodies v. Burlingame Ele-
mentary Sch. Dist., 897 F.2d 974 (9th Cir. 1989) (awarding
the parents of a disabled child attorney fees incurred in an
administrative due process hearing under the Handicapped
Children's Protection Act).

[4] When a parent obtains affirmative relief in a proceeding
brought under the IDEA, then the parent is "the prevailing
party." 20 U.S.C. S 1415(i)(3)(B); see also Kletzelman v.
Capistrano Unified Sch. Dist., 91 F.3d 68, 70 (9th Cir. 1996)
("This court has construed section 1415[(i)(3)(B)] to justify
the award of attorneys' fees to parents who prevailed at an
administrative hearing or reached a favorable settlement prior
to a scheduled administrative hearing."). If, as we hold below,
the CRP is a "proceeding brought under" S 1415, then a court
may award fees to a plaintiff parent who obtains affirmative
relief in that manner. To hold otherwise would be to render
meaningless the statutory wording that the court  may award
fees in "any . . . proceeding" brought underS 1415, even if
it is not an "action." Moreover, if a plaintiff parent's rights
under the IDEA include the right to recover fees expended in
a successful CRP, the right would be unenforceable if we
were to hold that a district court lacks jurisdiction to enforce
it.

2. "Action or Proceeding"

The parties do not dispute that, under S 1415(i)(3)(B), pre-
vailing parents can recover attorney fees that they expended
in an impartial due process hearing. Defendant argues, how-
ever, that the CRP, unlike the due process hearing, is not an
"action or proceeding brought under [S 1415]." Accordingly,
Defendant argues, CRP-related attorney fees cannot be recov-
ered under S 1415(i)(3)(B).

Initially, we note that there is nothing in the text of S 1415
that suggests that attorney fees cannot be awarded for IEP
meetings that are ordered by an SEA to resolve a CRP com-
plaint. Section 1415(i)(3)(B) provides that a district court may
award attorney fees "[i]n any action or proceeding brought
under this section." Had Congress intended that attorney fees
be available only in those cases involving an impartial due
process hearing under S 1415(f), it could have and would
have written the statute more narrowly to say so.

[5] Indeed, in the same subsection ofS 1415 that includes
the attorney fees provision, Congress exhibited its ability to
refer expressly to the impartial due process hearing proce-
dures that are contained in S 1415(f). See 20 U.S.C.
S 1415(i)(1)(A) ("A decision made in a hearing conducted
pursuant to subsection (f) . . . of this section shall be final
. . . ."); 20 U.S.C. S 1415(i)(2)(A) ("Any party aggrieved by
the findings and decision made under subsection (f) . . . .").
If Congress had wanted to provide for the recovery of attor-
ney fees only in those cases in which a due process hearing
was conducted, it could have worded S 1415(i)(3)(B) in the
same fashion as S 1415(i)(1)(A) and (i)(2)(A). However, Con-
gress chose different and broader wording, a choice that sup-
ports our conclusion that Congress did not intend to restrict
awards of attorney fees to only those cases in which the par-
ents of a disabled child opt to pursue an impartial due process
hearing. See Russello v. United States, 464 U.S. 16, 23  (1983)
("[W]here Congress includes particular language in one sec-
tion of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.") (cita-
tion and internal quotation marks omitted).

[6] As noted above, S 1415(i)(3)(B) provides that a district
court may award attorney fees "[i]n any  action or proceeding
brought under this section." (Emphasis added.) Congress' use
of the word "any" is significant, because it suggests that there
is more than one type of "proceeding" in which a district
court is authorized to award attorney fees. See Webster's
Third New Int'l Dictionary 97 (unabridged ed. 1993) (defin-
ing "any" as "one indifferently out of more than two").
Accordingly, the word "any," as used in S 1415(i)(3)(B), mili-
tates in favor of concluding that Congress intended that attor-
ney fees could be awarded in cases involving complaint
resolution proceedings other than impartial due process hear-
ings.

[7] Our conclusion that, for purposes of S 1415(i)(3)(B), a
CRP is a "proceeding" is consistent with this court's decision
in Mitchell. In that case, the parents of a disabled child
requested an administrative due process hearing to resolve
issues regarding their child's educational placement. After the
opening arguments were made in the administrative hearing,
the hearing was continued at the request of the school district.
Before the hearing was set to reconvene, the parties settled.
The parents then filed a petition in the district court, seeking
attorney fees.4 The district court granted the parents' petition.

On appeal, the school district argued that attorney fees were
not available to the parents, because the case was settled
before a due process hearing took place. The court noted that
the "clear language of [the attorney fees provision] contem-
plates an award of attorneys' fees at the administrative level.
The provision specifically refers to `any action or proceeding
brought.' " Mitchell, 940 F.2d at 1284. We held that
S 1415(i)(3)(B) "allows the prevailing parents to recover
attorneys' fees when settlement is reached prior to the due
process hearing." Id. at 1285.

Here, Plaintiffs' dispute with Defendant was resolved
through Oregon's CRP. As in Mitchell, the dispute was
resolved without the need of a due process hearing. Under this
court's holding in Mitchell, the district court was not pre-
cluded from awarding attorney fees on the ground that, under
S 1415(i)(3)(B), attorney fee awards are available only in con-
nection with due process hearings.

[8] In sum, the text of S 1415(i)(3)(B) suggests that Con-
gress intended that attorney fee awards be available in actions
and proceedings under S 1415 as well as in impartial due pro-
cess hearings. The question before us then becomes whether
the CRP is one of those other actions or proceedings for
which S 1415(i)(3)(B) provides an award of attorney fees.
3. "Brought under this Section"

[9] As noted, S 1415(i)(3)(B) authorizes a court to award
attorney fees in actions or proceedings "brought under this
section." As used in that subsection, the word "section" refers
to the entire statute. Cf. 20 U.S.C. S 1415(i)(2)(A) ("Any
party aggrieved by the findings and decision made under sub-
section (f) or (k) of this section . . . .") (emphasis added). In
other words, the phrase, "brought under this section," as used
in S 1415(i)(3)(B), means "brought underS 1415." Accord-
ingly, if the CRP is an action or proceeding that is brought
under S 1415, a court may award attorney fees to parents who
are prevailing parties.

[10] Section 1415(b)(6)5  requires states to adopt procedures
that provide the parents of disabled children with "the oppor-
tunity to pursue complaints with respect" to their children's
education. In this regard, states are required to provide parents
who file such complaints with "an opportunity for an impar-
tial due process hearing." 20 U.S.C. S 1415(f)(1). As dis-
cussed above, such hearings are one way, but not the only
way, by which the parents of a disabled child can pursue com-
plaints regarding their child's education. The regulations, the
validity of which are not being challenged here, also require
states to adopt CRPs which, like due process hearings, are
designed to address S 1415(b)(6) complaints. See 34 C.F.R.
S 300.660-.662.6 The regulations recognize that the CRP and
impartial due process hearings both are designed to address
S 1415(b)(6) complaints. For example, the regulations specifi-
cally address situations in which the same complaint is the
subject of both a CRP and an impartial due process hearing.
See 34 C.F.R. S 300.661(c).

[11] The CRP and the due process hearing procedure are
simply alternative (or even serial) means of addressing a
S 1415(b)(6) complaint. The CRP is designed to provide "par-
ents and school districts with mechanisms that allow them to
resolve differences without resort to more costly and litigious
resolution through due process." Comment to CRP Regs., 64
Fed. Reg. 12646 (1999). Although different, a CRP is no less
a proceeding under S 1415 than is a due process hearing.
There is nothing in the statute or regulations that tends to
show that Congress meant to allow an award of attorney fees
to only those parents who choose to invoke one means of
resolving a S 1415(b)(6) complaint and not another. Defen-
dant's argument would require us to rewrite the statute to sub-
stitute "certain subsections of this section" for "this section"
in S 1415(i)(3)(B). That we cannot do. See Badaracco v.
Commissioner, 464 U.S. 386, 398  (1984) ("Courts are not
authorized to rewrite a statute because they might deem its
effects susceptible of improvement.").

Moreover, Defendant's position conflicts with the policy
behind the adoption of the CRP -- to encourage less costly
and less litigious resolution of IDEA complaints. Were we to
accept Defendant's argument, the parents of disabled children
would be forced to pursue the longer and more expensive due
process procedure to recover their attorney fees.

[12] Defendant argues that the CRP is not "brought under
this section" because the CRP is provided for only in the reg-
ulations and not expressly in S 1415. The regulations concern-
ing the CRP were promulgated pursuant to the Secretary of
Education's general authority to "make promulgate, issue,
rescind, and amend rules and regulations governing the man-
ner of operation of, and governing the application programs
administered by, the Department." 20 U.S.C. S 1221e-3. The
CRP is designed to resolve complaints by organizations or
individuals that a public agency has violated the IDEA. See
34 C.F.R. SS 300.660, 300.662. The CRP regulations make
clear that, in certain circumstances, complaints that can be
addressed by resort to a due process hearing underS 1415(f)
also can be addressed through the CRP. See 34 C.F.R.
S 300.661(c). In other words, the CRP encompasses (but may
not be limited to) complaints under S 1415. We need not
decide whether all CRP complaints are "brought under"
S 1415. But, to the extent that a CRP complaint addresses a
dispute that is subject to resolution in a S 1415 due process
hearing, the CRP is a proceeding "brought under " S 1415.

4. Exception for Certain IEP Meetings

[13] Finally, Defendant argues that, even if a CRP is an
"action or proceeding brought under this section " for purposes
of S 1415(i)(3)(B), S 1415(i)(3)(D)(ii) precludes an award of
attorney fees for a lawyer's attendance at IEP meetings that
are ordered by an SEA pursuant to a CRP. Section
1415(i)(3)(D)(ii) provides:

        Attorneys' fees may not be awarded relating to
       any meeting of the IEP Team unless such meeting is
       convened as a result of an administrative proceeding 
       or judicial action, or, at the discretion of the State,
       for a mediation described in subsection (e) of this
       section that is conducted prior to the filing of a com-
       plaint under subsection (b)(6) or (k) of this section.

(Emphasis added.); see also C.F.R. S 300.513(c)(2)(ii)
(same). Under S 1415(i)(3)(D)(ii), Plaintiffs may recover their
attorney fees only if the IEP meeting is "convened as a result
of an administrative proceeding" under S 1415(i)(3)(D)(ii).7

[14] The first criterion, "convened as a result," is met,
because the IEP meetings were ordered by the Department
pursuant to Oregon's CRP, after Plaintiffs properly initiated
a complaint. Defendant's argument centers on the second cri-
terion, namely, whether the CRP is "an administrative pro-
ceeding."

We already have concluded that a CRP is a "proceeding"
for which attorney fees may be recovered in subsection (B).
We need only decide whether this proceeding is "administra-
tive."

[15] Black's Law Dictionary defines "administrative proce-
dure" as "[m]ethods and processes before administrative
agencies as distinguished from judicial procedure which
applies to courts." Black's Law Dictionary  46 (6th ed. 1990).
Both the CRP and the due process hearing fall within that
general definition, and nothing in the IDEA suggests that
Congress had in mind a more restrictive definition. In conclu-
sion, S 1415(i)(3)(D)(ii) does not preclude Plaintiffs from
recovering their attorney fees for their lawyer's attendance at
the IEP meetings that were convened by order of the Depart-
ment as a result of Oregon's CRP.

AFFIRMED.
_______________________________________________________________

FOOTNOTES

1 Defendant does not claim on appeal that the amount of attorney fees
that the district court awarded is unreasonable.
2 Title 20 U.S.C. S 1415(f)(1) provides:

        Whenever a complaint has been received under subsection
       (b)(6) [involving any matter relating to the identification, evalua-
       tion, or educational placement of a child or the provision of a free
       appropriate public education to a child] or (k)[not applicable
       here] of this section, the parents involved in such complaint shall
       have an opportunity for an impartial due process hearing, which
       shall be conducted by the State educational agency or by the local
       educational agency, as determined by State law or by the State
       educational agency.
3 Defendant does not challenge the validity of the CRP regulations.
4 The Mitchell opinion does not disclose how the attorney fees were
incurred. Therefore, it is impossible to determine how much, if any, of the
total fee was incurred on account of administrative procedures or negotia-
tions apart from those related to the impartial due process hearing that was
never reconvened.
5 Title 20 U.S.C. S 1415(b)(6) provides:

        The procedures required by this section shall include--

        . . . .

        (6) an opportunity to present complaints with respect to any
       matter relating to the identification, evaluation, or educational
       placement of the child, or the provision of a free appropriate pub-
       lic education to such child[.]
6 Subsection (a)(1) of 34 C.F.R. 300.660 provides: "Each SEA shall
adopt written procedures for-- (1) Resolving any complaint, including acomplaint filed by an organization or individual from another State, that
meets the requirements of S 300.662 . . . . " In turn, 34 C.F.R S 300.662(b)
provides: "The complaint must include-- (1) A statement that a public
agency has violated a requirement of Part B of the Act . . . ." Part B of
the Act includes 20 U.S.C. S 1415. See Pub. L. No. 105-17, June 4, 1997,
Title I, S 101, 111 Stat. 37 (showing that Part B of the Act includes S 615
of the IDEA in its uncodified form); 20 U.S.C. S 1415 (showing that 20
U.S.C. S 1415 is the codification of S 615 of the IDEA as passed by Con-
gress); Pub. L. No. 105-17, June 4, 1997, Title I,S 101, 111 Stat. 88
(same).
7 Neither party argues that the IEP meetings at issue here were convened
as a result of a judicial action or pursuant to mediation./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove:  not found