The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
This matter is before the Court for consideration of
Plaintiff's Motion for an Interim Award of Legal Fees and
Expenses. Plaintiffs filed this action pursuant to the
Individuals with Disabilities Education Act ("IDEA"),
20 U.S.C. § 1400 et seq., seeking educational services for plaintiff
Jamel Whatley from defendant District of Columbia Public Schools
("DCPS"). Plaintiffs now seek certain attorneys' fees and costs
related to plaintiffs' efforts to secure an adequate education
for Jamel. Upon consideration of the parties' briefs, the Court
must deny plaintiffs' motion in its entirety.
Plaintiffs filed this action in 1998 seeking relief for
defendants' failure to provide special educations services to
Jamel consistent with the IDEA. Specifically, plaintiffs sought
an order directing DCPS to conduct a due process hearing as
required by the IDEA, 20 U.S.C. § 1415(f), which hearing DCPS had
failed to provide in a timely manner. See Memorandum of Points and Authorities in Support of Plaintiffs' Motion for an
Interim Award of Legal Fees and Expenses ("Pls.' Mem.") at 2.
After the suit was filed, DCPS completed its evaluations of Jamel
and placed him at Prospect-Goding Learning Center. See id.
The due process hearing took place on October 27, 1999, at which
time the hearing officer ordered modifications of the Prospect
placement as well as additional testing. Having thus prevailed at
the administrative proceedings, plaintiffs sought attorneys' fees
and costs under the IDEA. Defendants paid the fees and costs up
to the permissible statutory limit provided for in the District
of Columbia Appropriation Act of 1999. See id. at 3.
Plaintiffs assert that DCPS then failed to implement the
hearing officer's determination and that plaintiffs requested a
second due process hearing. The parties entered into a settlement
agreement prior to the hearing. See Pls.' Mem. at 3. Again,
plaintiffs requested attorneys' fees and costs for their
counsel's efforts, and defendants paid those fees up to the
amount allowable under the appropriations fee cap for IDEA cases.
See id. In the motion currently before the Court, plaintiffs
seek (1) the fees and expenses that plaintiffs incurred during
the administrative process but that remain unpaid because of the
fee caps, in the amount of $12,590.36; and (2) additional fees
and costs incurred for recent administrative work on Jamel's
behalf and in preparing the instant motion, which are in excess
of the fee cap, in the amount of $11,778.36. See id. at 4. II. DISCUSSION
The IDEA provides that parents who object to their child's
educational placement are entitled to an impartial due process
hearing, see 20 U.S.C. § 1415(b)(6), (f)(1), at which they
have a "right to be accompanied and advised by counsel."
20 U.S.C. § 1415(h)(1). Parents "aggrieved by" a hearing officer's
findings and decision may bring a civil action in either state or
federal court without regard to the amount in controversy.
20 U.S.C. § 1415(i)(2). Section 1415(i)(3)(B) of the IDEA gives
courts the authority to "award reasonable attorneys' fees as part
of the costs to the parents of a child with a disability who is
the prevailing party," which includes the authority to award fees
to a party who has prevailed in an administrative proceeding.
See Moore v. District of Columbia, 907 F.2d 165, 166 (D.C.
Cir. 1990) (en banc). The amount of fees awarded is based "on
rates prevailing in the community in which the action or
proceeding arose for the kind and quality of services furnished."
20 U.S.C. § 1415(i)(3)(c).
The House Committee on Appropriations, in considering the
District of Columbia's fiscal year 1999 appropriations request,
adopted an appropriations rider that limited defendants' fee
payments under the IDEA. This so-called fee cap became Section
130 in the D.C. appropriations bill enacted by the Congress and
signed by the President. See Calloway v. District of
Columbia, 216 F.3d 1, 4 (D.C. Cir.) (citing Section 130 of the
Omnibus Consolidated and Emergency Supplemental Appropriations
Act of 1999, Pub.L. 102-277, 112 Stat. 2681 (1998) ("Section
130 (1999)")). Congress included that limit, or "cap," in the
appropriations acts for fiscal years 1999-2001 and 2003-2004 for
actions brought under the IDEA. See Section 129 of the District
of Columbia Appropriations Act of 2000, Pub.L. No. 106-113, 113
Stat. 1501, 1517 (1999); Section 122 of the District of Columbia
Appropriations Act of 2001, Pub.L. No. 106-522, 114 Stat. 2440,
2464 (2000); Section 144 of the District of Columbia
Appropriations Act, 2003, Pub.L. No. 108-7, 117 Stat. 11 (2003);
and Section 432 of the Consolidated Appropriations Act, 2004,
Pub.L. No. 108-199, 118 Stat. 3 (2004) ("Section 432 (2004)").
In 2000, the court of appeals concluded that while these
statutory caps restrict the amount defendants may pay in
attorneys' fees brought under the IDEA, they do not restrict the
Court's authority to award fees in excess of the cap. See
Calloway v. District of Columbia, 216 F.3d at 12.
The Appropriations Act of 2002 was different from the other
years' appropriations bills. It did not include a cap on IDEA
attorneys' fees, but did include a particular restriction of the
award of fees. The legislation for that year provided that:
Notwithstanding 20 U.S.C. § 1415, 21 U.S.C. § 1988,
29 U.S.C. § 794a, or any other law, none of the funds
appropriated under this Act, or in appropriations
Acts for subsequent fiscal years, may be made
available to pay attorneys' fees accrued prior to the
effective date of this Act that exceeds a cap imposed
on attorneys' fees by prior appropriations Acts that
were in effect during the fiscal year when the work
was performed, or when payment was requested for work
previously performed, in an action or proceeding
brought against the District of Columbia Public
Schools under the Individuals with Disabilities
Education Act (20 U.S.C. § 1400 et seq.).
Section 140(a) of the District of Columbia Appropriations Act
of 2002, Pub.L. No. 107-96, 115 Stat. 923 (2001) ("Section
B. The Effect of Buckhannon
As a preliminary matter, the Court concludes that for the
reasons stated in its Opinion and Order in Armstrong v. Vance,
also issued today, plaintiffs may not be awarded any fees sought for their efforts in connection with the second due
process hearing request and the attendant settlement agreement
because they were not "prevailing parties" under the IDEA in
light of the Supreme Court's decision in Buckhannon Bd. & Care
Home, Inc. v. West Virginia Dep't of Health & Human Res.,
532 U.S. 598 (2001). See Armstrong v. Vance, Civil Action No.
01-2677, Opinion at 16 (D.D.C. Aug. 4, 2004). Plaintiffs likewise
cannot be awarded fees and costs for preparation of the fee
request pertaining to the settlement efforts or for counsel's
subsequent effort in enforcing the settlement agreement.*fn1
C. The Effect of the 2002 Appropriations Act on Plaintiffs'
Remaining Fee Petitions
What remains of plaintiffs' application is their claim for
those fees and costs that were incurred by counsel during the
first due process hearing that remain unpaid because they were in
excess of the fee cap. As a preliminary matter, the Court notes
that although defendants are no longer operating under the 2002
Appropriations Act, Section 140 (2002) remains relevant because
of the provision's prospective language barring use of any future
appropriations to pay for fees and costs incurred prior to the
enactment of the 2002 Act in excess of any fee cap in place at
the time, a category into which plaintiffs' claims indisputably
In its Opinion in Armstrong v. Vance, the Court concluded
that Section 140 (2002) precludes the use of funds from
subsequent fiscal years to pay for attorneys' fees and costs
related to counsel's above-cap efforts in IDEA cases prior to the
enactment of the 2002 Act. See Armstrong v. Vance, Civil Action No. 01-2677, Opinion at
21 (D.D.C. Aug. 4, 2004).*fn2 Although plaintiffs here offer
several additional arguments that challenge the prospective
language in Section 140 (2002) and ...