                                                                                Opinions of the United
2007 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

3-22-2007

Lauren W. v. DeFlaminis
Precedential or Non-Precedential: Precedential

Docket No. 05-3774

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                                    PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

           Nos. 05-3774, 05-4008, 05-4009

  LAUREN W., BY AND THROUGH HER PARENTS,
    JEAN AND JAMES W.; JEAN W.; JAMES W.,
           ON THEIR OWN BEHALF,

                Appellants in No. 05-3774

                          v.

  JOHN A. DEFLAMINIS, DR., IN HIS INDIVIDUAL
CAPACITY; KITTY LUGAR, DR., IN HER INDIVIDUAL
CAPACITY; RADNOR TOWNSHIP SCHOOL DISTRICT,

                Appellants in Nos. 05-4008 & 05-4009

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
              (D.C. Civ. No. 03-cv-01526)
     District Judge: Honorable Legrome D. Davis

              Argued December 13, 2006

  BEFORE: FISHER, CHAGARES and GREENBERG,
                 Circuit Judges

               (Filed: March 22, 2007)

                          1
Stephen G. Rhoads
Catherine M. Reisman (argued)
Katherine Skubecz
Montgomery, McCracken, Walker & Rhoads
123 South Broad Street
Philadelphia, PA 19109

   Attorneys for Appellants in No. 05-3774
   and Appellees in No. 05-4008 and No. 05-4009

Ellis H. Katz (argued)
Sweet, Stevens, Tucker & Katz
331 Butler Avenue
P.O. Box 5069
New Britain, PA 18901

   Attorneys for Appellees in No. 05-3774 and
   Appellants in No. 05-4008 and No. 05-4009

                  OPINION OF THE COURT

GREENBERG, Circuit Judge.

                      I. INTRODUCTION

         This matter comes on before the court on an appeal and
cross-appeals from orders the district court entered on June 3,
2005, and July 21, 2005, which became final upon entry of
judgment on August 1, 2005, in this case arising in a special
education context. See Lauren W. v. DeFlaminis, Civ. No. 03-
1526, 2005 WL 1353643 (E.D. Pa. June 1, 2005); Lauren W. v.
DeFlaminis, Civ. No. 03-1526, 2005 WL 2989712 (E.D. Pa. July
20, 2005). The suit arose from long-lived and recurring
disputes between the Radnor Township School District and the
parents, James and Jean W., of a daughter, Lauren W.
(collectively, appellants), entitled to and provided with a special

                                2
education by the school district.1 In addition to bringing this
action against the school district, the appellants joined Dr. John
DeFlaminis, the school district superintendent, and Dr. Kitty
Lugar, its director of pupil services, as defendants in their
individual capacities. When we refer to the “District” we are
referring to all three defendants unless the context of the
reference is such that it is clear that we are referring only to the
school district or the individuals, as the case may be.

          One of the principal issues in dispute is whether the
District is obligated to reimburse appellants for Lauren’s private
school tuition that they incurred after Lauren’s parents
unilaterally withdrew her from public school, and, if so, whether
the District also must provide compensatory education for
services it did not provide during Lauren’s private school
education. Appellants’ other main contention is that the District
denied Lauren special education services in retaliation for their
attempts to enforce Lauren’s rights under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.,
and thus is liable in damages to the appellants for that reason.
The District has counterclaimed seeking to recover a portion of
the private school tuition that it paid on Lauren’s behalf.
Moreover, in its counterclaim the District appeals from an
administrative decision requiring it to reimburse appellants for
tuition they paid for other years. For the reasons that follow, we
will affirm the orders and judgment of the district court.

           II. FACTS AND PROCEDURAL HISTORY

         The following historical and procedural events have
taken the case to its present posture. Lauren is a 20-year old
student who resides within the Radnor Township School
District. She suffers from a variety of conditions that have
effects entitling her to a free and appropriate education

       1
          Because Lauren was a minor at the time appellants commenced
this litigation, Lauren’s parents sued on her behalf as well as on their
own behalf.

                                   3
(“FAPE”) pursuant to the IDEA. It is undisputed that the
District is the local education agency responsible for providing a
FAPE to Lauren.

         Lauren attended private school until the fifth grade, but
in 1996, when she was ten years old, she entered schooling
programs that the District directly provided and attended Radnor
Middle School through the seventh grade. Thereafter, however,
Lauren’s parents, apparently dissatisfied with the Individual
Education Program (“IEP”) that the District proposed,
unilaterally placed her at the Hill Top Preparatory School (“Hill
Top”), a private school in Rosemont, Pennsylvania, for the 1999-
2000 school year, her eighth grade.

          Lauren’s parents paid the Hill Top tuition for the 1999-
2000 school year but requested a special education due process
hearing in which they could seek reimbursement from the
District for that tuition. The parties, however, negotiated a
settlement of that claim and consequently the hearing was
discontinued. Under the settlement, the District agreed to pay
the Hill Top tuition for the 1999-2000 school year and certain of
her parents’ attorney’s fees in lieu of its obligation to provide a
FAPE for that year. On the other hand, Lauren’s parents waived
all of their federal and state claims relating to Lauren’s
placement through the 1999-2000 school year. In accordance
with its agreement, the District issued a check to appellants for
$21,975 on November 15, 2000, to cover the 1999-2000 Hill
Top tuition.2

          By the time the District issued the tuition check,
Lauren’s ninth-grade (2000-2001) school year had begun.
Lauren remained at Hill Top that year and her parents again paid
her tuition and again sought reimbursement from the District. In
November 2000 the school board approved reimbursement for

       2
         In their statement of facts in their opening brief appellants
contend that the District never properly authorized execution of the
settlement agreement but they nevertheless do not contend in their
argument that for this reason it is not valid. Indeed, as we will explain
later, they contend that the District rescinded the agreement by not
complying with it, thus suggesting that it initially was valid.

                                   4
Lauren’s ninth grade at Hill Top but from December 2000 until
February 2002 the parties could not reach a final agreement with
respect to the terms for the District to reimburse appellants for
the tuition for the 2000-2001 school year because appellants
would not agree to a waiver-of-rights clause for that year similar
to the one in the 1999-2000 agreement. In particular, appellants
objected to waiving Lauren’s right to “related services”3 beyond
the Hill Top curriculum, as they believed that Lauren needed
these services to meet her educational needs. The District,
however, would not accept the agreement to fund the 2000-2001
Hill Top placement without the waiver clause. As the dispute
continued, Lauren began the tenth grade at Hill Top with her
parents paying the 2001-2002 tuition.

        With resolution of the dispute over reimbursement of
Lauren’s parents for the 2000-2001 and 2001-2002 school years
in limbo, the District on May 28, 2002, proposed an IEP for the
2002-2003 school year (eleventh grade). This IEP proposed
placing Lauren in a public school Bridge Program. Appellants,
however, were not satisfied with the proposed IEP and
consequently sought a due process hearing to address their
concerns.

         Inasmuch as the District refused to fund the Hill Top
placement pending due process review, on July 18, 2002,
Lauren’s parents filed an action in the district court petitioning
for a judgment declaring that Hill Top was Lauren’s “pendent
placement” under 20 U.S.C. § 1415(j)4 and seeking injunctive

       3
        Under the IDEA a district must provide a FAPE which entails
both “special education” and “related services.” 20 U.S.C. § 1401(9).
“The term ‘related services’ means transportation, and such
developmental, corrective, and other supportive services . . . as may be
required to assist a child with a disability to benefit from special
education . . . .” Id. § 1401(26)(A). Related services include items such
as speech and audiology services, psychological services, and physical
and occupational therapy.
       4
        Section 1415(j) states: “[D]uring the pendency of any
proceedings conducted pursuant to this section, unless the State or local
educational agency and the parents otherwise agree, the child shall

                                   5
relief requiring the District to fund Lauren’s placement at Hill
Top until they resolved the dispute over the 2002-2003 tuition.
This action was successful and the district court granted
appellants the relief they sought. Lauren W. v. Bd. of Educ. of
Radnor Twp. Sch. Dist., Civ. No. 02-4775, 2002 WL 32130764
(E.D. Pa. Sept. 12, 2002). On September 16, 2003, in further
proceedings the district court clarified that the District’s
responsibility to pay Lauren’s tuition at Hill Top extended to the
2003-2004 school year pending final judicial review as to the
appropriateness of the IEP. Lauren W. v. DeFlaminis, Civ. No.
03-1526, 2003 WL 22387406 (E.D. Pa. Sept. 16, 2003). In
compliance with the district court’s pendency decisions, the
District paid the Hill Top tuition for the 2002-2003 and 2003-
2004 school years.

         The parties engaged in an administrative due process
hearing extending over five separate sessions from July 22,
2002, until October 22, 2002, relating to the years after the 1999-
2000 school year. This hearing culminated in a hearing officer
making the following determinations: (1) the 2000 settlement
agreement barred litigation of claims that pre-dated the
execution of the agreement; (2) the District was responsible for
Lauren’s Hill Top tuition for the 2000-2001 and 2001-2002
school years that appellants had advanced to Hill Top; (3) the
proposed IEP for the 2002-2003 school year was appropriate;
and (4) Lauren was not entitled to related services or
compensatory education for the time she spent at Hill Top. Both
parties appealed from the hearing officer’s decision to the
Pennsylvania Special Education Appeals Panel which, on
January 22, 2003, affirmed the hearing officer’s decision.

         On March 11, 2003, appellants initiated the civil action
leading to this appeal in the district court seeking review of the
administrative decision (Count I); a declaratory judgment
regarding Lauren’s pendent placement (Count II); damages
under 42 U.S.C. § 1983 for the District’s alleged retaliation
against them in violation of the First Amendment (Count III);

remain in the then-current educational placement of the child . . . .”

                                    6
damages for retaliation in violation of section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a) (Count IV); and claims
pursuant to section 504 of the Rehabilitation Act and 42 U.S.C. §
1983 for the District’s violation of its “child find” duty (Count
V). The District answered and filed the two counterclaims that
we already have described. The District predicated one
counterclaim on an unjust enrichment theory in which it sought
the return of a portion of the Hill Top tuition that it paid pursuant
to one of the district court’s orders to which we refer above. The
District predicated its second counterclaim, constituting an
appeal from the administrative decision awarding appellants
reimbursement of the 2000-2001 and 2001-2002 Hill Top
tuition, on the theory that the Hill Top placement was not
appropriate. On October 19, 2004, the parties filed cross-
motions for disposition of Count I of the complaint on the
administrative record. The District also sought summary
judgment on appellants’ remaining counts.

          On June 3, 2005, the district court upheld the
administrative decision in all aspects. The court, however,
deemed Count II of appellants’ complaint seeking a declaratory
judgment with respect to the expenses of Lauren’s pendent
placement to be moot because the court already had granted
appellants all the relief they could obtain on that count and
because Lauren no longer was a student at Hill Top. Further, the
court granted the District’s motion for summary judgment
dismissing the retaliation claims in appellants’ Counts III and IV
brought under 42 U.S.C. § 1983 and the First Amendment and
section 504 of the Rehabilitation Act, respectively, and
dismissing the “child find” duty claim raised in Count V.
Finally, the court requested that the District’s counsel advise it
as to the status of the District’s counterclaims.

         The parties subsequently filed cross-motions for
summary judgment on the counterclaims and the district court on
July 21, 2005, granted appellants’ motion on them. Pursuant to
Federal Rule of Civil Procedure 58, on August 1, 2005, the court
entered judgment in favor of the District on Counts I, III, IV, and
V and dismissed Count II of the complaint and entered judgment
for appellants on the District’s counterclaims. Thus, the district
court disposed of all aspects of the complaint and counterclaims.

                                 7
The parties have appealed and cross-appealed to this court from
the court’s orders of June 3, 2005, and July 21, 2005, and from
the judgment of August 1, 2005. The parties do not, however,
challenge the order dismissing Count II of the complaint as
moot.

     III. JURISDICTION AND STANDARD OF REVIEW

        This action arose pursuant to the IDEA, 42 U.S.C. §
1983, the First Amendment, and section 504 of the
Rehabilitation Act of 1973. The district court had jurisdiction
under 20 U.S.C. § 1415(i)(3)(A) and 28 U.S.C. §§ 1331,
1343(a)(3). We have jurisdiction over the appeal pursuant to 28
U.S.C. § 1291.

         We exercise plenary review over orders granting
summary judgment. Elliot & Frantz, Inc. v. Ingersoll-Rand Co.,
457 F.3d 312, 318 (3d Cir. 2006). Thus, we will affirm those
orders if our review reveals that “there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). In
determining whether summary judgment is warranted, we review
the facts in the light most favorable to the non-moving parties,
id., and draw all reasonable factual inferences in their favor,
Doby v. DeCrescenzo, 171 F.3d 858, 867 (3d Cir. 1999).

          “If a non-moving party fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case on which it bears the burden of proof at trial,
there is no issue as to a genuine issue of a material fact and thus
the moving party is entitled to judgment as a matter of law.” In
re Ikon Office Solutions, Inc., 277 F.3d 658, 666 (3d Cir. 2002)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S. Ct. 2505, 2510 (1986)). “Moreover, a party will not be able to
withstand a motion for summary judgment merely by making
allegations; rather, the party opposing the motion must go
beyond its pleading and designate specific facts by use of
affidavits, depositions, admissions, or answers to interrogatories
showing there is a genuine issue for trial.” Id. (citing Celotex

                                8
Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553
(1986)). “Only evidence sufficient to convince a reasonable
factfinder to find all of the elements of [the] prima facie case
merits consideration beyond the Rule 56 stage.” Id. (internal
quotation marks omitted).

          We exercise plenary review over the legal conclusions
the district court reached in our review of an administrative
adjudication in IDEA cases. L.E. v. Ramsey Bd. of Educ., 435
F.3d 384, 389 (3d Cir. 2006); S.H. v. State-Operated Sch. Dist.
of Newark, 336 F.3d 260, 269 (3d Cir. 2003). The district court,
however, exercised a “modified de novo” standard of review of
the factual findings in the administrative adjudication in this
IDEA case giving those factual findings “due weight.” See id. at
269-70. Consequently, the district court considered the findings
in the administrative proceedings to be “prima facie correct,” see
id. at 270, and deferred to the hearing officer’s credibility
determinations. See id. We, in turn, review the district court’s
findings for clear error. See L.E., 435 F.3d at 389.

                           IV. DISCUSSION

           A.   Counts III & IV: Retaliation

         Appellants argue that the District retaliated against them
for enforcing Lauren’s rights to a FAPE in violation of the First
Amendment, a claim they assert under 42 U.S.C. § 1983, and in
violation of section 504 of the Rehabilitation Act5 by refusing to

       5
        Section 504 of the Rehabilitation Act states:

                No otherwise qualified individual with a
                disability in the United States, . . . shall,
                solely by reason of her or his disability,
                be excluded from the participation in, be
                denied the benefits of, or be subjected to
                discrimination under any program or
                activity receiving Federal financial
                assistance . . . .

                                     9
release tuition reimbursement money unless they executed a
settlement agreement containing a waiver-of-rights provision.
The appellants further contend that the District retaliated against
them by refusing to provide related services to Lauren while she
was a student at Hill Top. Though appellants concede that
eventually the District reimbursed them for the tuition money
that they were due, they contend that the District’s insistence
that they execute the waiver nevertheless “placed them in a
worse position for having engaged in protected activity,” Holder
v. City of Allentown, 987 F.2d 188, 196 (3d Cir. 1993), because
of the time and expense spent litigating several suits they filed
seeking an injunction to compel the funding.

          The elements of a retaliation claim under 42 U.S.C. §
1983 predicated on the First Amendment and under the
Rehabilitation Act are the same. In both cases plaintiffs must
show (1) that they engaged in a protected activity, (2) that
defendants’ retaliatory action was sufficient to deter a person of
ordinary firmness from exercising his or her rights, and (3) that
there was a causal connection between the protected activity and
the retaliatory action. See Thomas v. Independence Twp., 463
F.3d 285, 296 (3d Cir. 2006) (First Amendment); Estate of Smith
v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (First
Amendment); Robinson v. Potter, 453 F.3d 990, 994 (8th Cir.
2006) (Rehabilitation Act); Weixel v. Bd. of Educ. of N.Y., 287

29 U.S.C. § 794(a). The anti-retaliation regulation implementing section
504 states:

               No recipient or other person shall
               intimidate, threaten, coerce, or
               discriminate against any individual for
               the purposes of interfering with any right
               or privilege secured by [the Act], or
               because he has made a complaint,
               testified, assisted, or participated in any
               manner in an investigation, proceeding or
               hearing . . . .

34 C.F.R. § 100.7(e).

                                   10
F.3d 138, 148 (2d Cir. 2002) (Rehabilitation Act).6 A defendant
may defeat the claim of retaliation by showing that it would have
taken the same action even if the plaintiff had not engaged in the
protected activity. See Ambrose v. Twp. of Robinson, 303 F.3d
488, 493 (3d Cir. 2002).

         This appeal does not turn on a question of whether
appellants engaged in a protected activity or whether the District
engaged in the conduct that the appellants ascribe to it,7 but
rather whether there was a causal relationship between the two.
After all, if there was not a causal relationship then the District
could not have engaged in its conduct in retaliation for
appellants having engaged in a protected activity. To establish
the requisite causal connection a plaintiff usually must prove
either (1) an unusually suggestive temporal proximity between
the protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to establish a causal
link. See Krouse v. American Sterilizer Co., 126 F.3d 494, 503-
04 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913,
920-21 (3d Cir. 1997). In the absence of that proof the plaintiff
must show that from the “evidence gleaned from the record as a
whole” the trier of the fact should infer causation. Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).

         A court must be diligent in enforcing these causation
requirements because otherwise a public actor cognizant of the
possibility that litigation might be filed against him, particularly
in his individual capacity, could be chilled from taking action
that he deemed appropriate and, in fact, was appropriate.
Consequently, a putative plaintiff by engaging in protected
activity might be able to insulate himself from actions adverse to
him that a public actor should take. The point we make is not

       6
        Weixel stated the requirements more expansively but its
formulation does not change the substance of the requirements.
       7
          The District does not deny that appellants in seeking to enforce
Lauren’s IDEA rights were engaging in a protected activity, or that it
refused funding absent the waiver on which it insisted, or that it rejected
appellants’ claims for related services. Of course, the District denies
that it had a retaliatory motive for engaging in its conduct.

                                    11
theoretical as we do not doubt that public actors are well aware
that persons disappointed with official decisions and actions
frequently bring litigation against the actors responsible for the
decisions or actions in their individual capacities, and the actors
surely would want to avoid such unpleasant events.8 Thus, it
would be natural for a public actor to attempt to head off a
putative plaintiff with the unwarranted expenditure of public
funds. Courts by their decisions should not encourage such
activity and, by enforcing the requirement that a plaintiff show
causation in a retaliation case, can avoid doing so as they will
protect the public actor from unjustified litigation for his
appropriate conduct. In this regard we recognize that often
public actors such as those in this case must make a large
number of decisions in charged atmospheres thereby inviting
litigation against themselves in which plaintiffs ask the courts to
second guess the actors’ decisions.

          Appellants do not allege that the timing of the alleged
retaliatory action can support an inference that their protected
activity caused the District to engage in the so-called retaliatory
action and, in any event, the timing of the District’s actions
cannot support such an inference because the District made its
determinations with respect to Lauren at the time that it needed
to do so. Rather, appellants contend that “the record as a whole”
creates an inference that the District retaliated against them.
Appellants’ br. at 29. The district court rejected this argument as
it held that there was no causal connection between appellants’
assertion of Lauren’s rights and the District’s insistence on a
waiver, refusal to release tuition money, and rejection of
appellants’ requests for related services. Instead, the court held
that the evidence showed that the District insisted on the waiver
because it was not in a position to ensure that the private school
program at Hill Top would comply with the IDEA as the
Commonwealth of Pennsylvania had not approved it. The
District’s concern in this regard was understandable because
Lauren’s parents unilaterally placed her in Hill Top, which was a

       8
        We also are aware that in employment situations employees
sometimes threaten to bring retaliation actions if the employer takes
adverse action with respect to them.

                                 12
non-approved private school.9 Therefore the District believed
that it did not have the authority or ability to supervise the
private school program or recognize any need for related
services.

          Appellants argue that the district court erroneously
concluded that there was no genuine issue of material fact with
respect to the causal link between the protected activity and the
District’s alleged retaliatory conduct. In particular, they believe
that the court overlooked or undervalued five particular
categories of evidence in reaching its decision. We will address
those arguments in turn.

              1. Direct evidence

          Appellants first argue that the district court wrongly
overlooked direct evidence that the District’s refusal to fund the
pendent placement without a waiver of rights was related
causally to their enforcement of Lauren’s rights. In support of
this argument appellants point to what they regard as the
District’s admissions stating that it would not consent to the
funding of the pendent placement without a satisfactory waiver
of rights. These “admissions,” however, were not direct
evidence, or, indeed, evidence at all with respect to the relevant
inquiry regarding causation, which is whether the District’s
refusal to fund the placement and insistence on the waiver
provision was connected causally to appellants’ enforcement
actions. Rather, appellants only have produced evidence that the
District refused to fund the placement because appellants would
not consent to the waiver of rights. We are at a total loss to
comprehend how this evidence could support appellants’
causation argument for the District was in an ongoing dispute
with the appellants and wanted to protect itself from their
possible claims. Appellants’ argument amounts to nothing more
than an assertion that a party to a controversy that resists
demands against it is engaging in retaliatory conduct by doing

       9
       It appears that even though the Commonwealth had not
approved Hill Top, at least with respect to Lauren, it was a very
competent provider of the services it rendered.

                                13
so. If we permitted a trier of the facts to accept appellants’ view
of the so-called direct evidence we would allow it to conclude
that when parties are in a dispute and are discussing its
resolution, one side, in advancing its position is negotiating, and
the other is retaliating. We will not place our imprimatur on
such an unbalanced view.

              2. Disparate treatment

          Appellants believe that the district court erred in
disregarding evidence showing that another student was placed
in a private school at the District’s expense and was provided
with related services but nevertheless was not compelled to sign
a waiver. Lauren W., 2005 WL 1353643, at *21-22. The
district court did not find the comparison useful because the so-
called similarly-situated student was placed in the private school
in accordance with a provision in an IEP and not, as in the case
of Lauren, as the result of a settlement agreement following a
unilateral placement.

          Plainly the district court was correct. The comparison
between the two students did not have evidentiary value on the
retaliation issue as they were not similarly situated. A student
placed in a private school pursuant to an IEP is there by reason
of a bilateral agreement between the parties in which they agree
that the placement satisfied the requirements of a FAPE.
Accordingly, in such circumstances a school district would not
need a waiver of rights or a waiver of related services in addition
to those provided for in the IEP. In contrast, in Lauren’s
situation her parents unilaterally placed her in the non-approved
private school, and because the District’s supervision was
inhibited and it could not guarantee the satisfaction of the
conditions of a FAPE, the District sought to insulate itself from
liability or further educational obligations by obtaining the
waiver. Thus, the motivation for a request for a waiver in one
situation but not the other arising in the private school placement
context was entirely justified and cannot fairly be regarded as
being related to Lauren’s parents having engaged in a protected
activity. Clearly, appellants have failed to isolate the relevant
variable and thus the comparison between the students has no
evidentiary value on the nexus issue.

                                14
               3. Individual appellees’ deposition testimony

          Third, appellants believe Drs. DeFlaminis’s and Lugar’s
testimony raises a genuine issue of material fact on the
retaliatory animus issue. Dr. DeFlaminis testified at his
deposition that lawsuits in special education have become a
“waste land” because of their complexity requiring advice of
counsel for compliance. App. at 314. Moreover, he viewed the
litigious nature of the parents in the Radnor Township School
District as “outrageous and heinous.” App. at 321. Finally, he
stated that he wished that his handicapped son for whose entire
education Dr. DeFlaminis had paid “had had the benefit of this
counsel in the law because then he would have received services
that I provided.” App. at 317.10 Plainly these comments are not
evidence that Dr. DeFlaminis refused to provide the funding to
Lauren because of appellants’ attempts to enforce Lauren’s
IDEA rights.11 Indeed, the comments have nothing to do with

       10
         In appellants’ brief they extract snippets of Dr. DeFlaminis’s
deposition which misconstrue what he was saying. The district court
supplied the appropriate context.
       11
          Based on our considerable experience in these types of cases
we can understand the reason for Dr. DeFlaminis’s view of the special
education litigation landscape, though we do not place the blame for the
situation on the appellants or the District in this case or, in general, on
parents or school districts in such litigation. In this regard we point out
that in this case each side of the controversy is prevailing in part and
losing in part.

       Regardless of where the responsibility for the litigation may be,
a fair-minded person interested in the welfare of disabled or
handicapped children viewing special education litigation naturally
would believe that it would be better to expend the money and energy
now devoted to lawsuits on the education of children, particularly those
needing special education services. Indeed, it is not easy to understand
how anyone could have a different view unless he believes that the
purpose of litigation is to generate legal fees.

        In this case we cannot help but wonder whether since the start of
the disputes more money has been spent on Lauren’s education or on
legal fees concerning the resolution the disputes regarding her education.

                                    15
Dr. DeFlaminis’s treatment of Lauren. After all, appellants were
in no way involved in what happened to Dr. DeFlaminis’s son.
Thus, contrary to the situation in the cases of San Filippo v.
Bongiovanni, 30 F.3d 424, 434 (3d Cir. 1994), and Hill v. City
of Scranton, 411 F.3d 118, 133 (3d Cir. 2005), that the
appellants raise, a trier of the fact simply cannot draw an
inference that Dr. DeFlaminis engaged in retaliatory conduct
from these post hoc, general comments.

         Appellants also believe that Dr. Lugar’s continued
insistence that they sign an agreement with a waiver even after
the District’s agreement to pay the 2000-2001 tuition at Hill Top
suggests a retaliatory animus. Dr. Lugar testified at her
deposition that she believed the school board’s approval was
conditioned on execution of the agreement. The district court
held that Dr. Lugar’s “mistaken apprehension about the legal
ramifications of the events of the November Board meeting does
not automatically transform her efforts to have the parents sign a
settlement agreement into retaliatory ones. There is no other
evidence in the record to indicate a material question of fact as to
Dr. Lugar’s motivations.” Lauren W., 2005 WL 1353643, at
*22.

         Appellants argue that the summary judgment standard,
which requires that all reasonable inferences be drawn in their
favor as the non-moving parties, precluded the district court
from conclusively inferring that Dr. Lugar’s “mistaken
apprehension” was non-retaliatory. We find this argument

In mentioning this point we observe that there have been four separate
district court cases, two initial administrative proceedings, one
administrative appeal, and one judicial appeal, arising from this
controversy with steps within the proceedings too numerous to recount
in full. Moreover, resolution of the parties’ ongoing disputes has
required substantial public expenses for the employment of hearing and
administrative appeals officers and for federal judges and for related
expenditures. Clearly, it is unfortunate that the providing of educational
services, which surely should be done on a nonconfrontational basis,
frequently has become, like practically everything else in our society, a
matter for resolution by courts and administrative agencies, often in
heated proceedings.

                                   16
unpersuasive as this evidence cannot support a conclusion that
the District’s actions were retaliatory inasmuch as appellants
have failed to put forth even one specific fact to support an
inference that Dr. Lugar took her actions in retaliation for
appellants’ conduct in engaging in a protected activity.

              4. Inconsistencies in explanations

          Fourth, appellants contend that inconsistencies in Dr.
Lugar’s explanations for the District’s refusal to provide related
services support an inference of retaliatory causation. Dr. Lugar
initially testified at the administrative hearing that the District
could not provide related services at Hill Top because the
Pennsylvania Department of Education prohibited it from
providing such services at non-approved private schools.
Appellants, however, point out that Dr. Lugar subsequently
testified at her deposition that she did not know if the District
was prohibited from providing related services in all cases of
placements in non-approved private schools (testimony that was
consistent with her prior testimony) or whether the District may
have refused to do so in this particular case because of Lauren’s
specific placement.

          We have reviewed Dr. Lugar’s deposition. In fact,
although she initially waivered on the question of whether the
District “couldn’t” or “wouldn’t” provide the related services in
Lauren’s situation (the deposition was years after the relevant
events), she concluded that counsel advised her that she
“couldn’t” provide the related services. App. at 335. This
conclusion was consistent with her testimony before the hearing
officer and thus there is no basis on which to draw an inference
of retaliation from her testimony.

              5. Interested witnesses

          Fifth, appellants contend that the district court
improperly relied upon the testimony of interested witnesses,
Drs. DeFlaminis and Lugar, in concluding that the District did
not act by reason of a retaliatory intent when it denied Lauren
tuition funding and related services. Appellants rely on Hill,
which states that “when drawing all reasonable inferences in

                                17
favor of the non-movant [for the purposes of summary
judgment] the courts must disregard evidence the jury is not
required to believe, including testimony of interested witnesses.”
Hill, 411 F.3d at 129 n.16 (citing Reeves v. Sanderson Plumbing
Prods. Inc., 530 U.S. 133, 149-51, 120 S.Ct. 2097, 2109-10
(2000)).

          Appellants, however, misconstrue the district court’s
decision. In this case on the retaliation counts they had the
burden as the non-moving party on the District’s motion for
summary judgment “to make a showing sufficient to establish
the existence of [each] element essential to [their] case.” Ikon
Office Solutions, 277 F.3d at 666. To satisfy the causation
element of retaliation, appellants brought the district court’s
attention to Drs. DeFlaminis’s and Lugar’s depositions. The
district court concluded that this testimony did not say what
appellants claim that it said. That is, the testimony did not
provide evidence of retaliatory intent.

          We also point out that appellants sued Drs. DeFlaminis
and Lugar individually so they were more than interested
witnesses, they were parties facing the threat of substantial
judgments being entered against them.12 We cannot believe that
the law precludes a party from presenting his own testimony on
a summary judgment motion which, of course, is not to say that
when there is conflicting testimony the court may accept the
testimony of one witness, even if a party, rather than another.
Indeed, in Hill which appellants cite, we made our comment
regarding disregarding testimony of interested witnesses after we
explained that the case involved contradictory evidence. The
fact is that in considering a motion for summary judgment the
court should believe uncontradicted testimony unless it is
inherently implausible even if the testimony is that of an
interested witness.13

       12
         We do not know whether if there had been such judgments they
would have been protected by insurance or a right of indemnification
from the District.
       13
        For example in a controlled intersection traffic accident case if
the moving party on a motion for summary judgment presents his

                                   18
         In sum, appellants have failed to produce sufficient
evidence to establish that there was a genuine issue of material
fact on their charge that the District denied funding and related
services for Lauren without the required waiver for a retaliatory
reason. There is simply no basis in the evidence to link
appellants’ campaign to secure funding and related services and
the District’s delay in satisfying or rejecting their requests.
Because appellants have failed to make a showing sufficient to
survive a motion for summary judgment on the causation
element of a retaliation claim, the district court correctly granted
summary judgment against them on that claim.14

            B.   Count I: Compensatory Education and Related
                 Services

         Appellants appeal from the district court’s order
denying their request for reversal of the administrative decision
holding that Lauren was not entitled to compensatory education
while she was at Hill Top during the 2000-2001 and 2001-2002
school years.15 Specifically, appellants seek compensatory
education under both the IDEA and the Rehabilitation Act for
the District’s failure to provide Lauren with related services,
including social skills training, psychology services, and

disposition testimony that the light was green for him and red for the
other party and there is no contrary evidence, and there is nothing
implausible about the deposition, in considering the motion the court
should accept the deposition testimony as true. If it does not do so then,
contrary to all precedent, it would allow the nonmoving party to defeat
the motion with mere allegations.
       14
          The District as such and Drs. DeFalminis and Luger,
respectively, claim municipal and qualified immunity on appellants’
retaliation claims. In view of our disposition of the causation issue we
do not consider the immunity defenses.
       15
          In the district court appellants also sought compensatory
education for the District’s failure to provide related services in years
prior to the 2000-2001 school year. The district court denied this claim
but appellants do not appeal that decision.

                                   19
psychiatric services, while she was at Hill Top, as well as
reimbursement for independent evaluations for which they paid.

               1. Compensatory education under the IDEA

         Under the IDEA a disabled student is entitled to a FAPE
until age 21. 20 U.S.C. § 1412(a)(1)(A). However, “[a]n award
of compensatory education allows a disabled student to continue
beyond age twenty-one in order to make up for the earlier
deprivation of [a FAPE].” Ridgewood Bd. of Educ. v. N.E. ex
rel. M.E., 172 F.3d 238, 249 (3d Cir. 1999). “[A] disabled
student’s right to compensatory education accrues when the
school knows or should know that the student is receiving an
inappropriate education.” Id. at 250. Under the IDEA a student
is receiving an inappropriate education if the program is not
providing “significant learning” and conferring a “meaningful
benefit.”16 Id. at 247.

         In determining whether Lauren received an “appropriate
education” at Hill Top during the 2000-2001 and 2001-2002
school years, we review the district court’s findings for clear
error recognizing that the district court gave “due weight” to the
hearing officer’s factual findings which it deemed “prima facie
correct.” In this case, the hearing officer determined that Hill
Top provided Lauren with appropriate social and psychological
services and that she continued making gains in those areas.
Joanne Waber, a teacher at Hill Top, testified that Lauren
received “constant feedback and monitoring” with respect to her
social-skill needs and Lauren attended group counseling twice a
week with a psychologist or a social worker. Lauren W., 2005
WL 1353643, at *13. In addition, Hill Top has a clinical

       16
           For clarity we point out that 20 U.S.C. § 1412(a)(10)(C)(ii),
dealing with reimbursement for private school placement, is not
involved here because appellants are not seeking reimbursement for
related services for which they paid, except with respect to the private
evaluation which we will address later. Rather, appellants contend that
Lauren is entitled to compensatory education by reason of the District’s
failure to provide related services while Lauren attended Hill Top. Thus,
appellants are seeking prospective injunctive relief rather than
reimbursement for the education Lauren already has received.

                                   20
psychologist on staff and every student has a counselor or
clinician available to her whenever she needs extra support.

         Not surprisingly, Lauren progressed under these
conditions. According to Ms. Waber, Lauren “made quite a bit
of progress” while at Hill Top, specifically with respect to her
social skills. Additionally, the District school psychologist,
Richard Doolan, produced a Comprehensive Evaluation Report
on July 24, 2000, indicating that Lauren’s social and emotional
well-being improved dramatically while she was at Hill Top.
Likewise, the proposed IEP for the 2002-2003 school year
indicates that “[s]ince entering Hill Top, Lauren’s experience
has been ‘extremely positive’ with improved grades, self-esteem
and friendships, according to her teachers.” App. at 286.
Moreover, appellants engaged a private psychologist whose
report indicated that Lauren was “doing very well at Hill Top.”
App. at 179. Based on these evaluations the hearing officer
concluded that Lauren was “a successful student making
progress each year and demonstrating good relationships with
her peers.” District’s br. at 42. Lauren’s parents in their
deposition testimony corroborated this assessment of Lauren’s
progress.

         While the district court concluded that Lauren’s work
habits and behavior were inconsistent, the record requires that a
court examining it nevertheless conclude that Hill Top provided
“significant learning” and conferred a “meaningful benefit” on
Lauren. Thus, compensatory education for the related services
allegedly not provided at Hill Top is not warranted. Appellants
have failed to offer evidence that demonstrates that the district
court committed clear error.17

                 2. Related services under the Rehabilitation Act

            Appellants next argue that even if Lauren was not

       17
         We also are troubled by the fact that appellants unilaterally
selected Hill Top for Lauren’s placement. Thus, appellants obtained
exactly what they sought and now the essence of their argument is that
they should have asked for more. We do not find this argument
compelling.

                                  21
entitled to compensatory education under the IDEA, she is
entitled to that relief under section 504 of the Rehabilitation Act.
Appellants rely on Lower Merion School District v. Doe, 878
A.2d 925 (Pa. Commw. Ct. 2005), appeal granted, 899 A.2d
1125 (Pa. 2006), in advancing this argument. In Lower Merion,
the court decided that the Rehabilitation Act entitled a disabled
student attending private school to related services at the public
school so long as the student was enrolled dually in the public
school district and the related services were needed to provide
the disabled student with a FAPE.18 Id. at 927.

         Our case, however, differs factually in two important
ways from Lower Merion. First, the court premised Lower
Merion on the fact that the private school student was enrolled
dually in the public school district. In contrast, in our case,
although dual enrollment is permissible under section 502 of the
Pennsylvania Public School Code of 1949, as amended, 24 Pa.
Stat. Ann. § 5-502 (West 1992), there is no evidence of which
we are aware that Lauren continued her enrollment in District
schools after beginning at Hill Top.19

       18
          The relevant facts of Lower Merion are as follows. The school
district determined after an evaluation of the student that the student
suffered from spastic diplegia, difficulties with fine motor skills, and
visual motor delays, and thus was eligible to receive occupational
therapy services under section 504 of the Rehabilitation Act which
requires the district to provide a FAPE to “each qualified handicapped
person,” 34 C.F.R. § 104.33(a). Lower Merion, 878 A.2d at 926-28 &
n.2. The student’s parents decided to enroll their child in an independent
private school outside of the district (for which they paid and for which
they did not seek tuition reimbursement) and then requested that the
district provide additional occupational services at the public school
where the child was enrolled dually. Id. at 926. Thus, the only issue
before the court was whether the handicapped child by enrolling in the
private school forfeited his right to the occupational services, which the
parties agreed were necessary for a FAPE. The majority determined that
the child’s rights to related services were not waived in those
circumstances. Id. at 933.
       19
         In appellants’ brief they recite, without reference to the record,
that “Lauren was dually enrolled at Radnor, a public school, and Hill
Top, a private school.” Appellants’ br. at 40. The District answered in

                                    22
          Second, and quite independently it was undisputed in
Lower Merion that occupational services were necessary to
provide the disabled child with a FAPE as required under section
504 of the Rehabilitation Act. Lower Merion, 878 A.2d at 926
& n.2. The only issue was whether the student forfeited those
services at the public school by enrolling in the private school,
where the student was not offered occupational therapy. In
contrast, in this case the Hill Top curriculum (without additional
related services) provided Lauren with a FAPE and thus satisfied
the District’s obligations. Compliance with federal law did not
require that the District offer related services to Lauren. Thus,
the principles in Lower Merion would not be implicated in this
case even if Lauren had been dually enrolled in Hill Top and
District schools.

               3. Reimbursement for the independent evaluation

          Appellants contend that they are entitled to
reimbursement for the cost of an independent educational
evaluation they obtained from Dr. Margaret Kay after appellants
expressed their agreement with the District’s evaluation. Under
34 C.F.R. § 300.502(b)(1), “[a] parent has the right to an
independent educational evaluation at public expense if the
parent disagrees with an evaluation by the public agency.” We
have applied the regulation broadly to permit reimbursement not
only when the parents expressly disagree with the evaluation but
also when “the parents[] fail[] to express disagreement with the
District’s evaluations prior to obtaining their own” evaluation
because unless the regulation is so applied “the regulation
[would be] pointless because the object of parents’ obtaining
their own evaluation is to determine whether grounds exist to
challenge the District’s.” Warren G. ex rel. Tom G. v.
Cumberland County Sch. Dist., 190 F.3d 80, 87 (3d Cir. 1999).
Consequently, we have held that reimbursement may be
warranted where a parent does not take a position with respect to
the district’s evaluation or otherwise “fails to express

discussing Lower Merion, that in that case “the child was enrolled in the
public school to receive the related services [but] [t]here is no evidence
that Lauren did the same.” District’s br. at 44 n.9.

                                   23
disagreement.”

         We, however, never have held that parents who
expressly agree with a district’s evaluation but obtain an
independent evaluation are entitled to reimbursement for the
evaluation and we cannot imagine how we could do so. Indeed,
if we reached that conclusion our process would be judicial
alchemy because 34 C.F.R. § 300.502(b)(1) is applicable when a
parent “disagrees” with the public agency’s evaluation. A
holding that “disagrees” includes “agrees” surely would be noted
far and wide and justifiably would subject us to derisive
comments. Of course, in this case inasmuch as Lauren’s parents
both checked “yes” and signed the District’s evaluation they
indisputably agreed with it. Though no doubt their agreement
did not preclude them from obtaining their own evaluation they
could not make a claim on the District to pay for it.

         C.   Count V: “Child Find” Duty Claim

         In Count V of their complaint, appellants seek
compensatory damages for violations of the IDEA’s “child find”
duty which requires the District to have a system in place to
identify, locate, and evaluate all children with disabilities
residing in their district. 20 U.S.C. § 1412(a)(3). Appellants
allege that in 1992 Lauren’s mother spoke to District elementary
school officials about her daughter’s educational needs and they
told her that the District could not accommodate Lauren and that
she should find a private school for her at her parents’ own
expense. The district court held that the settlement agreement
barred the claim as it waived appellants’ federal and state actions
and released the District from any liability relating to Lauren’s
education and placement through the 1999-2000 school year.

          Appellants argue that the district court erred because the
District rescinded the settlement agreement by breaching its
obligation under the agreement to pay counsel fees to appellants’
prior counsel. Thus, they contend that the waiver of rights
provision in the agreement is not binding. We find that there is
no genuine issue of material fact with respect to the District’s

                                24
alleged breach and rescission of the contract. Appellants have
failed to put forth any evidence indicating that the prior attorney
was, in fact, not paid. Even at oral argument before us
appellants’ counsel did not know if he had been paid. Moreover,
even if he was not paid, a breach must be material to allow
rescission, see General Motors Corp. v. New A.C. Chevrolet,
Inc., 263 F.3d 296, 315-17 (3d Cir. 2001), and the District’s
failure to pay the counsel fees, if there was such a failure, would
not be a material breach in these circumstances.20 After all, if
the District did not pay the attorney the problem is his, not
appellants’, inasmuch as appellants do not contend that he is
seeking payment for his services from them even though a
substantial time has elapsed since he performed his services.
Thus, the alleged breach has not been prejudicial to them.

            D.   Cross-Appeal: Tuition Reimbursement

         On cross-appeal, the District argues that the district
court erred in affirming the administrative decision holding that
Lauren’s parents were entitled to tuition reimbursement for the
2000-2001 and 2001-2002 school years.

            Under 20 U.S.C. § 1412(a)(10)(C)(ii),

                 If the parents of a child with a
                 disability, who previously received a
                 special education and related
                 services under the authority of a
                 public agency, enroll the child in a
                 private elementary school or
                 secondary school without the consent
                 of or referral by the public agency, a
                 court or a hearing officer may

       20
         The District also argues that a one-year equitable limitations
period bars the child-find duty claim, citing, inter alia, Bernardsville
Board of Education v. J.H., 42 F.3d 149, 158 (3d Cir. 1994). We have
no need to address this argument as we are barring the child-find duty
claim on other grounds.

                                  25
               require the agency to reimburse the
               parents for the cost of that
               enrollment if the court or hearing
               officer finds that the agency had not
               made a free appropriate education
               available to the child in a timely
               manner prior to that enrollment.

In Florence County School District Four v. Carter ex rel. Carter,
510 U.S. 7, 15, 114 S.Ct. 361, 366 (1993), the Supreme Court
determined that a student may be entitled to reimbursement if “a
federal court concludes both that the public placement violated
IDEA and that the private school placement was proper under
the Act.” Thus, under Florence County “a court may award a
disabled student the cost of his private placement if (1) the court
determines the student’s IEP is inappropriate and (2) the student
demonstrates that the private placement he seeks is proper.”
Ridgewood, 172 F.3d at 248. A private placement is “proper” if
it (1) is “appropriate,” i.e., it provides “significant learning” and
confers “meaningful benefit,” and (2) is provided in the least
restrictive educational environment. Id.

          The District does not contend that the first prong of the
Florence County test was not satisfied as it concedes that it did
not offer an IEP for Lauren for the 2000-2001 and 2001-2002
school years, nor does it make an argument with respect to the
least restrictive environment. The District challenges only the
“appropriateness” of the Hill Top placement under the second
Florence County prong.21 The District believes that Hill Top
was not appropriate because it did not offer the resources or
training adequate to provide Lauren with “significant learning”
or a “meaningful benefit,” and thus the District should not have
to reimburse Lauren’s parents for the 2000-2001 and 2001-2002
tuition. Specifically, the District argues that Hill Top was not

       21
          The District does not contend that Lauren’s parents are not
entitled to tuition reimbursement for 2000-2001 and 2001-2002 by
reason of the language set forth in 20 U.S.C. § 1412(a)(10)(C)(ii) that
for the parents to obtain reimbursement for the private school enrollment
the child with a disability “previously [have] received a special
education and related services under the authority of a public agency.”

                                   26
appropriate because it was not a “Pennsylvania approved private
school” and was not licensed to provide special education
programming; the Hill Top teachers lacked certifications in
special education; Hill Top did not provide an IEP; and Hill Top
did not structure an individualized program aimed at Lauren’s
specific academic, social, and behavioral needs.

         The Court in Florence County specifically rejected
arguments similar to those that the District presses here. In that
case, the Court held that a private school in the context of a
unilateral parental placement is not required to have an IEP as
“the parents’ rejection of the school district’s proposed IEP is the
very reason for the parents’ decision to put their child in a
private school.” Florence County, 510 U.S. at 13, 114 S.Ct. at
365. Likewise, reimbursement is not “necessarily barred by a
private school’s failure to meet state education standards” or by
the parents’ selection of a program unapproved by the state. Id.
at 14, 114 S.Ct. at 365; see also Warren G., 190 F.3d at 83 (“[A]
private school’s failure to meet state education standards is not a
bar to reimbursement under the IDEA.”).

          With respect to the other alleged deficiencies, we defer
to the factual findings of the hearing officer and the district court
that the Hill Top placement was appropriate. As we discussed at
length above, both the hearing officer and district court
concluded that the services provided to Lauren at Hill Top were
appropriate and she continued to make progress in reaching her
academic, social, and behavioral goals. The District has not
provided evidence that overcomes the deference that we must
give to these factual findings. Accordingly, we will affirm the
district court decision that the District is responsible for the
2000-2001 and 2001-2002 Hill Top tuition.

         E.   Cross Appeal: Unjust Enrichment

         The hearing officer and the district court concluded that
the District’s proposed IEP for the 2002-2003 school year and
placement in the public school’s Bridge Program was
appropriate. However, the District already had paid for the

                                 27
2002-2003 Hill Top tuition pursuant to a prior district court
order requiring it to fund the tuition during the pendency of the
dispute as Hill Top was Lauren’s “pendent placement” under 20
U.S.C. § 1415(j). See Lauren W., 2002 WL 32130764. The
District believes that it is entitled to a partial reimbursement for
the 2002-2003 tuition under the theory of unjust enrichment.
The District contends, as it did in the district court, that Lauren’s
parents should reimburse it for the portion of the 2002-2003
tuition after December 20, 2002, the deadline the hearing officer
imposed at which time Lauren was to return to the public school
district where the program was deemed appropriate.22 See
Lauren W., 2005 WL 2989712, at *3. The district court rejected
the argument and so do we.

          The elements necessary to prove that a party is entitled
to recovery on the basis of the equitable doctrine of unjust
enrichment are: (1) benefits conferred on one party by another;
(2) appreciation of such benefits by the recipient; and (3)
acceptance and retention of these benefits in such circumstances
that it would be inequitable for the recipient to retain the benefits
without payment of value. Allegheny Gen. Hosp. v. Philip
Morris, Inc., 228 F.3d 429, 447 (3d Cir. 2000). In the
circumstances of this case, considering the applicable law and
facts, it would not be inequitable for Lauren’s parents to retain
the benefits of the tuition payment that the District made to
cover the Hill Top tuition for the entire 2002-2003 school year.

       22
         We note that the District’s counterclaim for unjust enrichment
sought reimbursement “for the pro-rata share of tuition for the portion
of the 2002-2003 school year, from December 20, 2002 to the end of the
school year in 2003.” Therefore the District was not seeking
reimbursement for the money it advanced to cover the 2003-2004 school
year and the district court properly reached a decision only with respect
to recovery of money the District paid for the second portion of the
2002-2003 school year, see Lauren W., 2005 WL 2989712, at *6. Thus,
the District’s notice of appeal recites that it appeals from the district
court’s denial of the District’s “right to be reimbursed for the tuition
payments at Hill Top Prepatory School from January 2003 until the end
of the 2002-2003 school year.” App. at 3. Therefore, we will not
address whether the District is entitled to reimbursement for the balance
of the 2002-2003 school year or the 2003-2004 school year.

                                   28
During the course of the litigation, the District agreed to drop its
demand for half of the 2002-2003 tuition in exchange for
appellants’ voluntary withdrawal of a motion for preliminary
injunction they filed in the case of Lauren W. v. Radnor
Township School District, No. 03-CV-0665. Appellants
withdrew the motion and the District is bound by this agreement.
As the district court put it, “Defendants . . . received the benefit
of avoiding a certain amount of litigation-related expenditures of
time and money in return for their dropping their request that
Lauren’s parents take financial responsibility for the second half
of the 2002-2003 school year . . . . [I]t cannot be said, under
these factual circumstances, that [Lauren’s parents’] retention of
that tuition was unjust.” Lauren W., 2005 WL 2989712, at *4.
For this reason, we will affirm.

                       V. CONCLUSION

         For the foregoing reasons we will affirm the orders
entered on June 3, 2005, and July 21, 2005, and the judgment
entered on August 1, 2005. The parties will bear their own costs
on this appeal.

                                29


                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE

                       STATE OF ARIZONA, Appellee,

                                        v.

                 WILLIAM ALBERT DERRICO, Appellant.

                             No. 1 CA-CR 18-0853
                               FILED 11-26-2019

           Appeal from the Superior Court in Mohave County
                        No. S8015CR201700953
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

                                  AFFIRMED

                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                             STATE v. DERRICO
                             Decision of the Court

                        MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge James B. Morse Jr. joined.

C R U Z, Judge:

¶1           William Albert Derrico1 (“Derrico”) appeals his convictions
for aggravated assault with a tire knocker and attempted second degree
murder, arguing that both are supported by insufficient evidence. For the
following reasons, we affirm.

                 FACTUAL AND PROCEDURAL HISTORY

¶2           Derrico and M.W. were friends. Derrico gave M.W. $35 worth
of methamphetamine and, in return, M.W. gave Derrico an electronic tablet.
Both parties were aware that the tablet had a damaged screen.

¶3            A few weeks later, Derrico wanted to reverse the transaction
and asked M.W. for $70 back instead of $35, claiming he bought the tablet
for $70. M.W. offered to buy back the tablet for $35. Derrico threatened
“seven or eight” times to kill M.W. if he didn’t give him $70. Derrico also
told his neighbor that he wanted to shoot M.W. in the head. M.W. later said
he thought that these threats were “nothing,” but he made sure to keep his
“distance away from [Derrico].”

¶4           Early one morning, M.W. was sitting with his dogs in front of
a café when Derrico arrived. According to M.W., Derrico angrily exited his
vehicle, waved a tire knocker2 as if he was going to hit M.W., and yelled at
M.W. about the money, shouting “You’re dead, you’re dead.” M.W. then
ran around the side of the café to avoid Derrico. M.W.’s dogs surrounded
Derrico, and Derrico swung the tire knocker at the dogs. At that point,

1       The documents in the record inconsistently spell Appellant’s name
as William Albert Derrico and William Albert D’Errico. We use the name
listed on the judgment and sentencing minute entry.

2        A tire knocker is a wood stick used to check the air pressure in truck
tires.

                                       2
                           STATE v. DERRICO
                           Decision of the Court

Derrico retreated to his vehicle and drove off. M.W. then walked home
with his dogs.

¶5              Upon arriving at his home, M.W. noticed Derrico’s vehicle
quickly approaching. Derrico stopped in front of M.W.’s trailer, pulled out
a firearm, and shot M.W. in the back of the head. M.W.’s head hit the side
of his trailer, and he felt it become numb. Derrico then said, “How’s that
motherfucker,” and quickly drove off. M.W.’s head was bleeding, and he
was taken to the emergency room and treated for a gunshot wound to the
top of his head.

¶6             Shortly after the shooting, detectives and sheriff’s deputies
from the Mohave County Sheriff’s Office contacted Derrico at his residence
and read him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).
Derrico admitted that he had “been after” M.W. for weeks to try to “get
even” with him. Derrico then confirmed that he showed up at the café with
a tire knocker and that M.W. fled around the side of the café. Derrico also
admitted that he shot his firearm “up in the air at him,” but that he aimed
over the trailer, hoping to “wake [M.W.] up” and convince him to pay $70
for the tablet. The detectives then seized the firearm and tire knocker from
Derrico’s residence.

¶7           At trial, M.W. testified that Derrico was “wielding [the tire
knocker] around like he was going to hit me with it.” And when questioned
about his apprehension, the following transpired between the defense
counsel and M.W.:

      Q. Right. But like you said, you really weren’t afraid of him
      anyway ‘cause all his threats are just - - are just him, for lack
      of a better phrase, blowing smoke up your butt, right?

      A. Pretty much.

      Q. Okay.

      A. But I was gonna keep my distance anyways.

¶8           The jury found Derrico guilty of attempted second degree
murder, drive by shooting, and two counts of aggravated assault.

¶9           Derrico timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-120.21(A)(1).

                                     3
                            STATE v. DERRICO
                            Decision of the Court

                               DISCUSSION

¶10          “We will reverse a conviction ‘only if no substantial evidence
supports the conviction.’” State v. Denson, 241 Ariz. 6, 10, ¶ 17 (App. 2016)
(citation omitted). Substantial evidence is evidence “that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417,
409 (1980). “Evidence sufficient to support a conviction can be direct or
circumstantial.” Denson, 241 Ariz. at 10, ¶ 17.

¶11            We review de novo whether the evidence presented is
sufficient to support a conviction. Id. But it would be inappropriate for us
to reevaluate the “evidence to decide if [we] would reach the same
conclusions as the trier of fact.” State v. Guerra, 161 Ariz. 289, 293 (1989).
Rather, we must view the evidence “in the light most favorable to
sustaining the conviction” and draw all reasonable inferences “against the
defendant.” Id.

I.     Aggravated Assault with a Tire Knocker

¶12           Derrico argues that his conviction for aggravated assault with
a tire knocker is not supported by sufficient evidence because he did not
intend to place M.W. in reasonable apprehension of imminent injury, and
M.W. was not in apprehension of imminent injury. We disagree.

¶13            To be guilty of aggravated assault, the defendant must
“[i]ntentionally place[] another person in reasonable apprehension of
imminent physical injury” while using a “deadly weapon.” A.R.S. §§ 13-
1203(A)(2), -1204(A)(2). Prior threats are highly probative to show intent.
State v. Buot, 232 Ariz. 432, 433, ¶ 6 (App. 2013). “Either direct or
circumstantial evidence may prove the victim’s apprehension. There is no
requirement that the victim testify to actual fright.” State v. Wood, 180 Ariz.
53, 66 (1994).

¶14           Contrary to Derrico’s assertion, there is substantial evidence
that he intentionally placed M.W. in reasonable apprehension of imminent
physical injury. Derrico admitted that he had “been after” M.W. for months
to “get even with the little fucker” and that he wanted to “wake [M.W.] up.”
Derrico also confirmed that he went to the café with a tire knocker and that
M.W. fled. Derrico’s recorded admission was played to the jury. Derrico
also made prior threats of physical injury, supporting the conclusion that
he intended to place M.W. in reasonable apprehension of imminent harm.
See Buot, 232 Ariz. at 433, ¶ 6. Finally, although M.W. stated in response to
defense counsel’s questioning that he “[p]retty much” agreed that he wasn’t

                                      4
                            STATE v. DERRICO
                            Decision of the Court

afraid of Derrico, that agreement was not precise, and he further testified “I
was [going to] keep my distance anyways” as Derrico was “wielding [the
tire knocker] around like he was [going to] hit me with it” and yelling
“You’re dead, you’re dead.” In fact, M.W. tried to keep away from Derrico
by running around the side of the café. To the extent there is contradictory
evidence, we resolve the inference of M.W.’s apprehension against Derrico.
See Guerra, 161 Ariz. at 293.

¶15           Accordingly, the evidence supports the conclusion that
Derrico intentionally placed M.W. in reasonable apprehension of imminent
physical injury.

II.    Attempted Second Degree Murder

¶16          Derrico argues that his conviction for attempted second
degree murder is not supported by sufficient evidence because he intended
to shoot over M.W.’s head and therefore lacked the specific intent to kill
M.W. or knowledge that his conduct would cause M.W.’s death. We
disagree.

¶17           To be guilty of second degree murder, the defendant must,
without premeditation, “intentionally cause[] the death of another person.”
A.R.S. § 13-1104(A)(1). “[I]n order to commit an ‘attempt’ a defendant must
have an intent to perform acts and to achieve a result which, if
accomplished, would constitute the crime.” State v. Curry, 187 Ariz. 623,
627 (App. 1996) (emphasis omitted); see also A.R.S. § 13-1001. “The offense
of attempted second degree murder requires proof that the defendant
intended or knew that his conduct would cause death.” State v. Ontiveros,
206 Ariz. 539, 542, ¶ 14 (App. 2003). Prior threats are highly probative to
show intent and absence of mistake. See Buot, 232 Ariz. at 433, ¶ 6; see also
Wood, 180 Ariz. at 63 (recognizing that prior threats are relevant to not only
show intent but premeditation).

¶18            In this case, the State presented evidence that Derrico had
“been after” M.W. for weeks and threatened at least seven times to kill
M.W. A neighbor testified that Derrico even said that he was going to
“shoot [M.W.] in the head.” And Derrico did, in fact, shoot M.W. in the
head and yelled “How’s that” after doing so. See State v. Vann, 11 Ariz.
App. 180, 182 (1970) (stating that what a “defendant does or fails to do and
what he says may be evidence” of intent). Derrico’s use of a firearm alone
is sufficient for the jury to infer an intent to kill, and the fact that Derrico
shot M.W. in the head significantly bolsters that inference. See State v.
McIntyre, 106 Ariz. 439, 443 (1970) (noting that use of a deadly weapon is

                                       5
                           STATE v. DERRICO
                           Decision of the Court

sufficient evidence of intent). Finally, the jury was not required to accept
Derrico’s self-serving statement that he aimed over M.W.’s head. See State
v. Pieck, 111 Ariz. 318, 320 (1974) (“The jury is not compelled to accept the
story or believe the testimony of an interested party.”).

¶19          Accordingly, there is substantial evidence that Derrico
engaged in conduct intending to cause M.W.’s death.

                               CONCLUSION

¶20          For the foregoing reasons, we affirm Derrico’s convictions
and sentences.

                         AMY M. WOOD • Clerk of the Court
                         FILED: AA

                                         6


                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    June 26, 2006 Session

             DOUGLAS MARTIN v. PEGGY SUE MARTIN MOATS

                     Appeal from the Circuit Court for Davidson County
                          No. 01D-1753     Carol Soloman, Judge

                  No. M2004-01921-COA-R3-CV - Filed on August 24, 2006

Mother appeals finding of contempt for failure to make child support payments and argues that the
trial court failed to make the requisite finding regarding her ability to pay. Because there was no
evidence introduced to show Mother had the ability to pay, we reverse.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., and FRANK G. CLEMENT , JR., J., joined.

Timothy T. Ishii, Brentwood, Tennessee, for the appellant, Peggy Sue Martin Moats.

Matthew Mayo, Nashville, Tennessee, for the appellee, Douglas M. Martin.

                                            OPINION

        Mother appeals her conviction for criminal contempt under Tenn. Code Ann. § 29-9-101
arising from her failure to make child support payments. According to Mother, the trial court failed
to make the necessary finding that she had the ability to pay.

        The parties were divorced in June of 1997, and the three minor children resided with Father.
Mother was ordered to pay $101.00 per week as child support. In 2002, Father was granted a
judgment for child support arrearages totaling $7,795. Later, in January of 2004, Father filed a
Petition for Contempt. Later, in July of 2004 Father filed a second petition through Child Support
Services of Tennessee. On appeal there is no dispute that Mother missed 12 child support payments
in 2003 and 18 child support payments in 2004.

        A hearing was held on both Petitions for Contempt on August 4, 2004. A transcript of the
hearing was apparently not made, but a Statement of the Evidence pursuant to Rule 24(c) of the
Rules of Appellate Procedure was approved by the trial court. Mother did not testify and asserted
her Fifth Amendment right against self-incrimination. From the Statement of Evidence it appears
that Father was the sole witness and his testimony was limited to the specific child support payments
missed.

       According to the Statement of Evidence, the trial court found Mother failed to make 30 child
support payments and was “in willful criminal contempt . . . on 18 separate occasions.” Mother was
ordered to serve 10 days per offense totaling 180 days. The Order of Contempt itself, dated August
26, 2004, made no findings that the contempt was willful. Under the Order, Mother’s child support
was adjusted to $106 per week for two children,1 and the arrearage of $9,157 was to be paid $25 per
week.

         The trial court made no finding in the Order or Statement of Evidence that Mother had the
ability to pay the child support payments when they were due. Furthermore, there is no mention in
the Order or Statement of Evidence of any evidence heard by the court regarding Mother’s ability
to make the missed payments when they were due. For purposes of future support, the trial court
found in its Order that Mother is self-employed and earns $10.00 per hour, or $1,733 per month. The
only reference to Mother’s financial ability in the record is the sworn Petition for Contempt by
Father that alleged Mother “is able bodied, capable of pursuing gainful employment, and that failure
to make these payments . . . constitutes a willful and deliberate contempt.”

        After posting a bond, Mother appealed. Mother claims the trial court was required to find
that she had the ability to make the missed payments at the time they were due before she could be
held in criminal contempt. Father argues, on the other hand, that although the Order was silent on
willfulness, it is implicit in the court’s finding of willfulness in the Statement of Evidence that she
had the ability to pay.

        It is well settled that in order to find a person guilty of criminal contempt for failure to pay
child support, it must be proven beyond a reasonable doubt that the parent had the ability to pay and
willfully refused to do so. Cottingham v. Cottingham, 193 S.W.3d 531, 538 (Tenn. 2006); Ahern
v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000).

        We are not persuaded by Father’s argument that “implicit” in a finding of willfulness is the
finding of ability to pay. The Supreme Court in Ahern was quite specific in holding that willfulness
and ability are two distinct findings and that both must be found in order to hold that a failure to pay
child support is contemptuous.

         . . . the court first must determine that Ahern had the ability to pay at the time the
         support was due and then determine that the failure to pay was willful.

Ahern, 15 S.W.3d at 79 (emphasis added). The Tennessee Supreme Court reiterated this requirement
last year in Cottingham:

         1
           In the interim, the M other had been awarded custody of the oldest child who had also reached 18. The status
of the eldest child is not an issue on appeal.

                                                         -2-
       To support a finding of contempt, the prosecution was required to prove beyond a
       reasonable doubt that Mr. Cottingham had the ability to pay at the time it was due
       and that his failure to pay was willful.

193 S.W.3d at 538.

       There is simply no evidence in the record regarding Mother’s ability to pay when the child
support payments at issue were due. Under Cottingham and its predecessors, it was Father’s burden
to produce such evidence.

       Consequently, we must reverse the trial court. Costs of appeal are taxed to Douglas M.
Martin for which execution may issue, if necessary.

                                                     ___________________________________
                                                     PATRICIA J. COTTRELL, JUDGE

                                               -3-


                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 20a0237n.06

                                             No. 19-1490

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 REFAAT F. ABUL HOSN,                                       )                             FILED
                                                            )                       Apr 30, 2020
         Plaintiff-Appellant,                               )                  DEBORAH S. HUNT, Clerk
                                                            )
 v.                                                         )
                                                            )
 IRAQ MINISTRY OF TRANSPORT, Public Land                    )       ON APPEAL FROM THE
 Transport Co.; SECRETARY, DEPARTMENT OF                    )       UNITED STATES DISTRICT
 DEFENSE,       Colin  Powell; COALITION                    )       COURT FOR THE EASTERN
 PROVISIONAL AUTHORITY DIRECTOR, L. Paul                    )       DISTRICT OF MICHIGAN
 Bremer, III,                                               )
                                                            )
         Defendants-Appellees.                              )

BEFORE:         MERRITT, SUHRHEINRICH, and SUTTON, Circuit Judges.

        SUHRHEINRICH, Circuit Judge. Appellant Refaat Abul Hosn filed a claim for breach of

contract against the Iraq Ministry of Transport, a division of a foreign government. In general, the

Foreign Sovereign Immunities Act bars federal courts from asserting jurisdiction over claims

against a foreign state. But Hosn contends that his claim meets an exception to the FSIA: a foreign

state is not immune from suits arising from commercial activity that has a direct effect in the United

States. The district court held that the contract at issue had no direct effect in the U.S. and therefore

dismissed Hosn’s complaint. We affirm.
No. 19-1490, Refaat Abul Hosn v. Iraq Ministry of Transport, et al.

                                                          I.

         In May of 1998, a Lebanese company owned by Hosn1 agreed to deliver 200 trucks to IMT

in exchange for about $24 million worth of oil. According to Hosn, his company tendered the

trucks, but IMT reneged on the deal.

         In 2016, after years of trying to resolve his dispute with the Iraqi government, Hosn filed

the present action in the Eastern District of Michigan. After an initial screening,2 the district court

determined that IMT had immunity under the FSIA and dismissed the case. Hosn appealed that

dismissal, and we reversed, finding that the district court failed to consider whether jurisdiction

existed under the FSIA exception for commercial activity that has a direct effect in the U.S. Hosn

v. Iraq Ministry of Transport, et al., No. 16-2286, slip op. at 3–4 (6th Cir. May 24, 2017).

         The district court reopened the case and Hosn served IMT. When IMT failed to respond

to Hosn’s complaint, he moved for a default judgment. The district court noted that, because IMT

was a body of a foreign state, Hosn’s motion had to be addressed under the FSIA’s heightened

standard for default judgments, which requires the movant to “establish[] his claim or right to relief

by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Applying that standard, the district

court denied Hosn’s motion and directed him to refile it with additional support, including

evidence that the contract at issue met the FSIA’s direct-effect exception.

1
  We note that Hosn is not a party to the contract at issue in this case. That fact would likely stand as an additional
reason that the district court lacked jurisdiction. See Thomas v. BBB, 79 F. App’x 748 (6th Cir. 2003) (holding that
the plaintiff “lacks standing to prosecute any claims on behalf of his construction company” even though he was the
sole owner because “an action to redress injuries by a corporation cannot be maintained by an owner in his own name”)
(citing Canderm Pharmacal, Ltd. v. Elder Pharms., Inc., 862 F.2d 597, 602–03 (6th Cir. 1988). However, because
neither the parties nor the district court addressed this issue, we focus on the district court’s holding that the FSIA
precluded it from asserting jurisdiction.
2
  Hosn filed his complaint in forma pauperis, so the district court was required to dismiss the matter if it determined
that Hosn failed to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2).

                                                         -2-
No. 19-1490, Refaat Abul Hosn v. Iraq Ministry of Transport, et al.

       In Hosn’s refiled motion for default judgment, he asserted that the direct-effect exception

applied because IMT renewed the 1998 contract in 2003 through his American company, CIF

International. Therefore, according to Hosn, IMT’s failure to execute the contract had a direct

effect in the U.S.

       The district court reviewed Hosn’s refiled motion and determined that no contract existed

between IMT and Hosn’s American company. On that basis, the district court concluded that the

agreement at issue had no direct effect in the U.S. and dismissed the case for lack of jurisdiction.

                                                 II.

                                                 A.

       In this appeal, Hosn challenges the district court’s determination that the FSIA precluded

it from asserting jurisdiction over IMT.

       We receive this case in an unusual procedural posture. The district court raised the

jurisdictional issue sua sponte and did not rely on any particular rule of civil procedure to do so.

However, because the district court’s analysis most closely resembles that applied to a motion to

dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we

will review the dismissal under the standards applicable to that rule.

       In particular, because the district court engaged in fact-finding when analyzing Hosn’s

motion for default judgment, the analysis below was a “factual attack” on the court’s jurisdiction.

See Am. Telecom Co., LLC v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) (“A Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction may involve a facial attack or a

factual attack.”). When a Rule 12(b)(1) motion attacks a complaint’s factual predicate, the court

does not presume that the plaintiff’s factual allegations are true. Russell v. Lundergan-Grimes,

784 F.3d 1037, 1045 (6th Cir. 2015). The party invoking federal jurisdiction has the burden to

                                                -3-
No. 19-1490, Refaat Abul Hosn v. Iraq Ministry of Transport, et al.

prove that jurisdiction. See id. When examining a factual attack under Rule 12(b)(1), “the court

can actually weigh evidence to confirm the existence of the factual predicates for subject-matter

jurisdiction.” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012). For Rule

12(b)(1) factual attacks, we accept the district court’s findings of fact unless the findings are clearly

erroneous. See Russell, 784 F.3d at 1045. We review de novo the district court’s legal conclusions

regarding those facts. Id.

                                                   B.

        The FSIA limits federal courts’ jurisdiction over claims against foreign states. See 28

U.S.C. § 1330(a) (“The district courts shall have original jurisdiction without regard to amount in

controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of

[Title 28] as to any claim for relief in personam with respect to which the foreign state is not

entitled to immunity either under sections 1605–1607 of [Title 28] or under any applicable

international agreement.”). “Under the FSIA, a foreign state is presumptively immune from suit

unless a specific exception applies.” Permanent Mission of India to the United Nations v. City of

New York, 551 U.S. 193, 197 (2007).

        The question in this case is whether Hosn’s complaint fell under the FSIA’s exception for

disputes arising from “a commercial activity of the foreign state” that “causes a direct effect in the

United States.” See 28 U.S.C. § 1605(a)(2). “[A]n effect is ‘direct’ if it follows as an immediate

consequence of the defendant’s activity.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607,

618 (1992).

        The district court determined that the agreement at issue would not directly affect the

United States. Hosn does not contend that the 1998 contract—between IMT and Hosn’s Lebanese

company—had a direct effect in the U.S. Instead, he alleges that the agreement began to directly

                                                  -4-
No. 19-1490, Refaat Abul Hosn v. Iraq Ministry of Transport, et al.

affect the U.S. in 2003 when he and IMT renewed the contract through Hosn’s American company,

CIF International. However, the district court found that IMT did not renew the contract in 2003.

        The record supports the district judge’s conclusion that IMT never formed a contract with

Hosn’s American company. Plaintiff offered two documents purporting to establish that the

contract was renewed in 2003, but those documents actually indicate that IMT needed further

approval before the agreement could be renewed. The first document, a letter dated December 25,

2003, states that Hosn met with the IMT’s Land Transportation Company to discuss ways to

execute the 1998 contract, possibly by entering into a substitute agreement between IMT and CIF

International. However, that letter ended with the Land Transportation Company’s representative

requesting that the IMT’s general director “kindly submit the matter to the respectful minister to

get his approval on the above-mentioned proposal.” The second document is a similar letter, dated

May 7, 2007, in which the IMT requests approval to renew the 1998 agreement, stating: “Please

kindly view and let us know the opinion of your esteemed committee on the possibility of signing

the contract . . . .”

        Because IMT did not form an agreement with Hosn’s American company in 2003, the only

commercial arrangement before the district court was the 1998 contract, in which a Lebanese

company agreed to provide trucks to the Iraqi government in exchange for oil. That contract did

not directly affect the United States. Accordingly, the FSIA precluded the district court from

asserting jurisdiction over Hosn’s claim against IMT.

                                               III.

        For those reasons, we AFFIRM the district court’s dismissal of Hosn’s complaint.

                                               -5-


                                                                       June 9, 2015

                                 JUDGMENT

                 The Fourteenth Court of Appeals
      HECTOR A. ESPINOZA AND ELIZABETH SANCHEZ, Appellants

NO. 14-14-00846-CV                          V.

                           OSIEL LOPEZ, Appellee
                     ________________________________

        This cause, an appeal from the judgment in favor of appellee, Osiel Lopez,
signed, July 18, 2014, was heard on the transcript of the record. We have inspected
the record and find the county court lacked jurisdiction over the case. We therefore
reverse the judgment of the court below and dismiss the case for want of
jurisdiction.

      We further order that all costs incurred by reason of this appeal be paid by
appellee, Osiel Lopez.

      We further order this decision certified below for observance.


34 So.3d 738 (2008)
EX PARTE MARIO JAVADES McBRIDE
No. 1071040 (CR-06-1437).
Supreme Court of Alabama.
August 8, 2008.
Decision of the Supreme Court of Alabama Without Published Opinion Cert. denied.