United States District Court for the District of Columbia
August 4, 2004.
JAMEL WHATLEY, et al., Plaintiffs,
DISTRICT OF COLUMBIA, a municipal corporation, et al., Defendants.
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
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
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 the constitutionality of fee
caps generally, upon consideration of those arguments the Court's
conclusion remains the same.
Plaintiffs' first argument is rather unclear. Plaintiffs claim
that "[t]he 2002 funding statute is clearly ineffective to the
extent that it attempts to bind all future Congresses in
perpetuity." See Pls.' Mem. at 6. In the paragraphs that
follow, plaintiffs appear to be arguing that the Court cannot
interpret Section 140 (2002) to preclude all future payment of
previously-incurred above-cap fees because in so doing the Court
would have to conclude that Congress amended the IDEA through an
appropriations act by "severely restricting [plaintiffs'] right
to recover their legal fees." Pls.' Mem. at 7. If Congress wanted
to continue to bar payment of above-cap special education fees
after the 2002 fiscal year, plaintiffs argue, it instead "should
have included § 140, or something similar, in the FY2003
appropriations bill." Id.
Plaintiffs' implicit argument is that because there is a
presumption that Congress does not amend statutes through
appropriations bills, the Court cannot interpret Section
140 (2002) to be such an amendment. This assertion is incorrect.
While the presumption exists that appropriation statutes
generally do not amend substantive law, it is only a presumption.
See Calloway v. District of Columbia, 216 F.3d at 9
("appropriations acts are `Acts of Congress' which can
substantively change law," although "there is a very strong
presumption that they do not") (internal quotation and citation
omitted). Moreover, plaintiffs do not actually argue that Congress amended the IDEA with Section 140 (2002), but instead
only that the Court should avoid such an analysis. The Court
cannot avoid an analysis merely because it works a hardship on
these plaintiffs or because Congress may have acted against a
Plaintiffs next argue that Section 140 (2002) is
unconstitutional on the ground that it violates the separation of
powers doctrine. See Pls.' Mem. at 7. Plaintiffs contend that a
permanent cap on those fees incurred prior to the enactment of
the 2002 Act unlawfully usurps the Court's authority "by
effectively remov[ing] from the courts all discretion to award
fees under a statute that affirmatively gives them this power."
Id. at 9. The court of appeals expressly decided this question
in Calloway, however, concluding that Congress "did not use
[the fee cap] to limit the power of federal courts to award fees
under IDEA." Calloway v. District of Columbia, 216 F.2d at 12.
It only limited defendants' ability to pay them. See id. The
court of appeals recognized that this conclusion is somewhat
incongruous, but expressly stated that any inconsistency should
be resolved by Congress, not by the Court. See id. at 10
("[R]econciling inharmonious statutory directives is Congress'
responsibility, not courts'.").
Plaintiffs also assert that Section 140 (2002) violates the
separation of powers doctrine by improperly nullifying
Calloway. Plaintiffs essentially claim that in Calloway, the
court of appeals held that if the fee cap ever expired,
plaintiffs would be entitled to the remainder of any previous fee
petitions that were limited by a cap. See Pls.' Mem. at 10. By
enacting Section 140 (2002), plaintiffs argue, Congress
improperly sought to change the disposition of the Calloway
case, citing case law for the proposition that Congress may not
invalidate final judgments of the courts. See id. This
argument necessarily fails. While the decision in Calloway does
not prohibit parties from seeking future payments of past fees,
it by no means requires payment if the cap is lifted. The issue of whether
plaintiffs have a right to obtain past fee amounts from
subsequent years' appropriations simply was expressly left open
in Calloway, see Calloway v. District of Columbia, 216 F.2d
at 12, and Section 140 (2002) therefore cannot deprive the
judgment in Calloway of its "conclusive effect." Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 225, 228 (1995) (holding
that a statute expressly directing the reopening of cases
dismissed on statute of limitations grounds and requiring the
application of new limitations period violated separation of
powers doctrine). See also Saco River Cellular, Inc. v.
Federal Communications Commission, 133 F.2d 35, 31 (D.C. Cir.
1998) (separation of powers doctrine not violated if relevant
issue not resolved in prior decision).
Finally, plaintiffs charge that Section 140 (2002) constitutes
a taking in violation of the Fifth Amendment. Plaintiffs argue
that prior to the institution of the first fee cap, plaintiffs'
counsel agreed to represent plaintiffs on a contingency fee
basis, and that she continued to represent plaintiffs after the
fee cap was enacted because counsel had an interest in and a
reasonable expectation that she some day could collect the
remainder of any fees and costs if and when the fee cap expired;
this reasonable expectation was based on both Calloway and on
the temporary, yearly nature of the fee caps. See Pls.' Mem. at
12-13. Plaintiffs cite this Court's decision in Calloway, in
which the Court concluded that the fee cap did not apply
retroactively to work performed prior to the enactment of the cap
because "plaintiffs had a settled expectation that if they
prevailed under the IDEA . . . they would recover reasonable
attorneys fees at a rate prevailing in the community" rather than
fees limited by a statutory cap. Calloway v. District of
Columbia, Civil Action No. 99-0037, 1999 U.S. Dist. LEXIS 13751,
at *4 (D.D.C. May 14, 1999). This reliance is misplaced. This Court's decision not to apply the cap to fees incurred
prior to enactment of the cap was not grounded in constitutional
law, but in the doctrine related to the retroactive application
of statutes. See Calloway v. District of Columbia, 1999 U.S.
Dist. LEXIS 13751, at *4. In addition, as discussed supra,
while the court of appeals' decision in Calloway did not
preclude counsel from seeking above-cap fees if the cap were
lifted, the court of appeals did not hold that such an avenue for
additional recovery must exist. See Calloway v. District of
Columbia, 216 F.3d at 12. Contrary to plaintiffs' position, the
Calloway decision, even coupled with the "temporary" nature of
appropriation act fee caps, is not sufficient to create a
property interest in the excess fees, the denial of which
constitutes a taking. Section 140 (2002) permanently caps the
amount of fees counsel may collect for pre-2002 Appropriations
Act efforts, but it does not rise to the level of a taking. Based
on the foregoing, the Court therefore will deny plaintiffs'
motion for fees. A separate Order consistent with this Memorandum
Opinion shall issue this same day.
SO ORDERED. ORDER
For the reasons stated by separate Memorandum Opinion issued
this same day, it is hereby
ORDERED that Plaintiff's Motion for an Interim Award of Legal
Fees and Expenses [114-1] is DENIED; and it is
FURTHER ORDERED that this Order constitutes a final appealable
Order. See FED. R. App. P. 4(a).