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WHATLEY v. DISTRICT OF COLUMBIA

August 4, 2004.

JAMEL WHATLEY, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, a municipal corporation, et al., Defendants.



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

MEMORANDUM OPINION

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.

I. BACKGROUND

  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

  A. Statutory Background

  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 140 (2002)").

  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 fall.

  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 ...


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