Individualized Appeals to the Federal District and Circuit Courts
After a Pennsylvania special education due process hearing officer issues a decision, the losing side may appeal to a federal district court within 90 days. Many factors are involved in deciding whether to take an appeal, but if we are convinced that a family should have prevailed, we will usually appeal. The court in which we typically litigate these matters is the United States District Court for the geographical area where the school district and parents are located. The Philadelphia area, for example, is in the Eastern District of Pennsylvania. Although federal district courts are trial courts, they are also empowered to consider appeals from administrative proceedings, including special education due process hearings. This is only one of the ways in which special education law is itself individualized and differs from many other legal practice areas.
Like other appeals, those from special education due process hearings are based on paper/electronic written arguments called briefs, plus the file on record from the due process hearing – but not always. Since things can change very quickly in the lives of children, sometimes something important has happened since the due process hearing, or sometimes something in the decision by the hearing officer can make it important to submit further evidence on an aspect of the case that was not fully covered at the due process hearing. For these and other reasons, unlike in other kinds of appeals, the special education statute allows both sides to submit additional evidence on appeal, whether on paper or in a short hearing. That option is rarely used, because both sides try to make sure to present everything necessary at the due process hearing, but it is another important difference.
Appeals take time. At the beginning of an appeal, the attorneys for both sides and the court agree on a briefing schedule over a few months. Each side typically files two briefs, which are often lengthy and involve much legal research. As in other cases, the parties may agree to have a United States Magistrate Judge take the place of the District Court Judge. The judge may schedule oral argument, a discussion of the issues in the case, on his or her own or at the request of one or both parties. After considering and researching the matter carefully, the judge will eventually issue an opinion, her or his written ruling. Families should be aware that it can take many weeks or months for a judge to issue an opinion, depending on multiple circumstances including the complexity of the legal issues and the factual record.
The losing side has the right to appeal to a federal court of appeals within 30 days of the date on which that opinion is issued, but whether to do so is a more complicated decision involving careful consideration of many factors. (The U.S. Court of Appeals for the Third Circuit hears appeals from the federal district courts in Pennsylvania and Delaware.) Briefing and argument is more formal in a Circuit Court of Appeals. Its decision is almost always the last word on the matter, since the United States Supreme Court turns down almost all petitions asking it to hear appeals.
We are one of only a few family-side special education firms to handle not just due process matters but also federal appeals from them, without hesitation or referral to someone else but as a regular part of our practice, with a full-time attorney assigned primarily to these matters. We continue to work full-time with appropriate remote, distancing, and other health and safety measures during pandemic closures. Initial consultations in special education matters are free, and we handle most special education cases on a pure contingency basis, without fees or even a retainer being paid by the family.