United States District Court for the District of Columbia
August 4, 2004.
BYRON ARMSTRONG, et al., Plaintiffs,
PAUL VANCE, et al., Defendants.
The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
This matter is before the Court for consideration of
defendants' motion to dismiss and plaintiffs' motion for summary
judgment. Plaintiffs filed this action seeking attorneys' fees
for their counsel's work at the administrative stage to enforce
plaintiffs' due process rights under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.,
and counsel's work in litigating plaintiffs' right to attorneys'
fees. Plaintiffs subsequently moved for summary judgment, and
defendants responded with a motion to dismiss for lack of subject
matter jurisdiction and for failure to state a claim under
Rule 12 of the Federal Rules of Civil Procedure. Upon consideration of
the parties' briefs, the Court concludes that it is appropriate
to grant in part and deny in part defendants' motion to dismiss,
and to deny plaintiffs' motion for summary judgment. I. BACKGROUND
A. Statutory Background
The IDEA seeks to "ensure that all children with disabilities
have available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and prepare them for employment and
independent living." 20 U.S.C. § 1400(d)(1)(A). As a condition of
receiving funds under the Act, the IDEA requires that school
districts adopt procedures to ensure appropriate educational
placement of special needs students. See 20 U.S.C. § 1413. In
addition, school districts must develop comprehensive plans for
meeting the special educational needs of such students. See
20 U.S.C. § 1414(d)(2)(A). Known as "individualized education
programs," or IEPs, these plans must include "a statement of the
child's present levels of educational performance, . . . a
statement of measurable annual goals, [and] a statement of the
special education and related services . . . to be provided to
the child. . . ." 20 U.S.C. § 1414(d)(1)(A).
Parents who object to their child's IEP 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 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 due
process 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).
B. Procedural History of this Action
In each of the 94 separate claims that are part of this action,
plaintiffs requested administrative due process hearings under
Section 1415(i)(3) of the IDEA as a response to defendants'
alleged failure to provide plaintiffs with a free and appropriate
education. See Plaintiffs' Motion for Summary Judgment,
Statement of Material Facts Not in Genuine Dispute ("PSMF") ¶¶
2-3. Plaintiffs assert that they prevailed at the administrative
level either by receiving a favorable hearing officer
determination ("HOD") or by securing a settlement agreement that
provided plaintiffs the relief they had requested. See id. at
¶¶ 3, 5. Plaintiffs then submitted attorneys' fee requests to
defendants following the conclusion of each administrative
proceeding, and received partial payments of the fee requests.
See id. ¶¶ 3-4. Specifically, defendants paid fee requests up
to the amount allowed under a statutory cap in the District of
Columbia appropriations law that expressly limited the amount
that defendants could pay for IDEA attorneys' fees. See id. ¶
13; Defendants' Memorandum in Opposition to Plaintiffs' Motion
for Summary Judgment, Defendants' Statement of Material Facts as
to Which There Is a Genuine Issue ("DSMF") at 2. Plaintiffs
subsequently filed their complaint in this Court on December 28,
2001, claiming prevailing party status and seeking the
outstanding balances on the aforementioned fee applications in
light of what plaintiffs deemed as a change in the appropriations
bill for fiscal year 2002 that they assert eliminated the fee
cap. During the course of the administrative proceedings but prior
to plaintiffs' suit, the Supreme Court announced in Buckhannon
Board & Care Home, Inc. v. West Virginia Dept. of Health & Human
Resources, 532 U.S. 598 (2001), a new rule regarding the
definition of "prevailing party" in fee-shifting statutes such as
the IDEA. In response to Buckhannon, defendant District of
Columbia Public Schools ("DCPS") Director of Mediation and
Compliance Paula Perelman issued a memorandum to the special
education bar addressing the Supreme Court's decision. In the
memorandum DCPS represented that
effective September 1, 2001, DCPS will not pay
attorneys' fees incurred in the course of executing a
settlement agreement with an attorney representing a
parent alleging a violation of the IDEA unless the
payment of these fees is a negotiated term of the
settlement agreement in question. DCPS will pay
attorneys' fees attendant to settlement agreements
before this date that include no language regarding
attorneys' fees to the extent permitted by law. In
doing so, however, DCPS admits to no liability for
the payment of such fees.
Motion for Summary Judgment, Ex. 2, Memorandum of August 31,
2001 from Paula Perelman to Attorneys Who Represent Parents Who
Prevail Against the D.C. Public Schools in Action Brought Under
the Individuals With Disabilities Act ("Perelman Memorandum").
Plaintiffs seek summary judgment on the ground that they are
prevailing parties, that their fee requests are reasonable, and
that the statutory cap that restricted the amount defendants
could pay for attorneys' fees under the IDEA was eliminated by
Congress. See Memorandum of Points and Authorities in Support
of Plaintiffs' Motion for Summary Judgment ("Pls.' Mem.").
Defendants oppose plaintiffs' motion, and have moved to dismiss
plaintiffs' complaint asserting that all the requests for attorneys' fees are
untimely, that the claims by plaintiffs who entered settlement
agreements are barred under Buckhannon, and that the statutory
cap still effectively applies to plaintiffs' claims. See
Memorandum of Points and Authorities in Support of Defendant's
Motion to Dismiss Complaint ("Defs.' Dism. Mem.").
A. Statute of Limitations
Defendants argue that plaintiffs' suit is untimely because it
was filed outside the applicable limitations period. A motion to
dismiss for untimeliness is a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) of the Federal
Rules of Civil Procedure. See Lacey v. United States,
74 F. Supp.2d 13, 15 (D.D.C. 1999). A motion to dismiss should not be
granted unless plaintiffs can demonstrate no set of facts that
supports their claim entitling them to relief. See Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1117 (D.C. Cir. 2000). In evaluating the
motion to dismiss, the Court must accept the factual allegations
in the complaint as true and draw all reasonable inferences in
favor of plaintiffs. See Harris v. Ladner, 127 F.3d 1121,
1123 (D.C. Cir. 1997). While the complaint is to be construed
liberally, the Court need not accept factual inferences drawn by
plaintiffs if those inferences are not supported by facts alleged
in the complaint, nor must the Court accept the plaintiffs' legal
conclusions. See National Treasury Employees Union v. United
States, 101 F.3d 1423, 1430 (D.C. Cir. 1996); Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Although a district court may dispose of a motion to dismiss on
the basis of the complaint alone, a court may consider materials
beyond the pleadings when evaluating a motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1) of the Federal Rules of Civil Procedure. "Where
necessary, the court may consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court's resolution of
disputed facts." Herbert v. National Academy of Sciences,
974 F.2d 192, 197 (D.C. Cir. 1992). This Court has interpreted
Herbert to allow a court to "consider such materials outside
the pleadings as it deems appropriate to resolve the question
whether it has jurisdiction to hear the case." Scolaro v. D.C.
Bd. of Elections and Ethics, 104 F. Supp.2d 18, 22 (D.D.C.
2000) (Kennedy, J.) (citing Herbert v. National Academy of
Sciences, 974 F.2d at 197), aff'd Scolaro v. D.C. Bd. of
Elections and Ethics, 2001 U.S. App. LEXIS 2747, No. 00-7176,
2001 U.S. App. LEXIS 2747, at *1 (D.C. Cir. Jan. 18, 2001); see
also Ass'n of Merger Dealers, LLC v. Tosco Corp.,
167 F. Supp.2d 65, 69 (D.D.C. 2001) (Hogan, C.J.) (same); Rann v.
Chao, 154 F. Supp.2d 61, 64 (D.D.C. 2001) (Urbina, J.) (same).
The parties agree that for each claim the limitations period
for attorneys' fees began to run on the date that plaintiffs
received the partial payments from DCPS; this constituted notice
to plaintiffs that defendants did not intend to pay the remaining
fees requested. See Defs.' Dism. Mem. at 11; Plaintiffs'
Opposition to Defendants' Motion to Dismiss ("Pls.' Opp.") at 17.
The Court therefore must determine only what limitations period
applies in order to assess the timeliness of plaintiffs' claims.
Defendants assert that the 30-day limitation period provided in
Rule 15(a) of the Rules of the District of Columbia Court of
Appeals applies to actions for attorneys' fees brought under
Section 1415(i)(3)(B). See Defs.' Dism. Mem. at 9-11.
Rule 15(a) provides that review of an agency decision or order must be
made within 30 days after notice of the order or decision. See
D.C. CT. APP.R. 15(a). Plaintiffs counter that the applicable
period is three years, as provided by Section 12-301(8) of the District of
Columbia Code, which provides a three-year limitations period for
actions "for which a limitation is not otherwise specially
prescribed." See Pls.' Opp. at 14 (quoting D.C. CODE ANN. §
12-301(8) (2001)). Upon careful consideration of the parties'
briefs and the relevant case law, the Court concludes that the
appropriate limitations period is three years as provided by
Section 12-301(8) of the District of Columbia Code.
Although the precise question of which limitations period
applies to suits for IDEA attorneys' fees has not come before the
D.C. Circuit, the court of appeals in Spiegler v. District of
Columbia, 866 F.2d 461 (D.C. Cir. 1989), has determined the
applicable limitations period for appeals of hearing officer
determinations brought under the IDEA. In Spiegler, the court
first explained that if Congress fails to establish a statute of
limitations for a federal cause of action, as it has in the IDEA
context, a court "may `borrow' one from an analogous state cause
of action, provided that the state limitations period is not
inconsistent with underlying federal policies." Id. at 463-64
(citing Wilson v. Garcia, 471 U.S. 261, 266-67 (1985)). The
court then considered the same two limitations period proposed by
the parties here and asked whether an appeal from a hearing
officer determination was sufficiently analogous either to an
administrative agency appeal or to a de novo civil action.
See Spiegler v. District of Columbia, 866 F.2d at 464. The
court in Spiegler concluded that the appeal of an HOD is more
analogous to an appeal of an administrative agency decision than
it is to a de novo civil action, in light of the
quasi-appellate role the district court plays in the review of
HODs, the fact that the evidence in both HOD reviews and
administrative appeals primarily is the administrative record,
and the deference the district court provides to the hearing
officer's decision. See id. at 465-66. Finally, the court concluded that the shorter 30-day period for HOD reviews was not
inconsistent with the federal policies underlying the IDEA,
noting that the IDEA "was intended to ensure prompt resolution of
disputes regarding appropriate education for handicapped
children" in light of the time-sensitive nature of a child's
development, and that a short limitations period furthered this
policy. Id. at 467.
Under Spiegler, the Court in this case must determine whether
an action for attorneys' fees is more akin to the review of an
administrative agency decision, or to a de novo civil action
under the IDEA. It is apparent to this Court that an action for
attorneys' fees is more like the latter, for several reasons.
First, unlike the appeal of a hearing officer decision, an action
for attorneys' fees involves no direct review of an
administrative decision. Instead, it concerns a fee petition
request raised for the first time. Second, in reviewing a fee
petition the Court considers evidence as to whether plaintiffs
prevailed in the underlying proceedings, and, if so, the
reasonableness of the fee request; this includes review of
attorney records and affidavits, materials never brought before a
hearing officer. While the Court may review the hearing officer
decision and the administrative proceedings more generally in
making these determinations, any such review is wholly different
from the review of the hearing officer's substantive decision.
See J.B. v. Essex-Caledonia Supervisory Union, 943 F. Supp. 387,
390 (D. Vt. 1996) ("In a fee claim action, a court makes a
judgment regarding an entirely different set of factual and legal
questions, considering whether and to what extent the claimant is
a prevailing party" as well as the reasonableness of the time
spent and the hourly rate charged). Finally, unlike the review of
administrative agency decisions there is no deference provided to
any hearing officer's decision for the simple reason that no such
decision exists. Each of these elements weighs in favor of applying the
three-year limitations period provided for de novo actions in
Section 301(8). See Zipperer v. School Board of Seminole
County, 111 F.3d 847, 851 (11th Cir. 1997); B.K. v. Toms River
Board of Education, 998 F. Supp. 462, 470 (D.N.J. 1998) ("It is
clear that the grounds upon which relief may be granted, the
nature of the proceedings, and scope of review differ" from
appeals of hearing officer determinations); Robert D. v. Sobel,
688 F. Supp. 861, 864 (E.D.N.Y. 1988) (same). The only remaining
question then is whether application of the three-year
limitations period supports the policies of the IDEA.
The policies underlying a claim for IDEA attorneys' fees are
different from those that underlie the appeal of substantive
hearing officer decisions. Cf. Spiegler v. District of
Columbia, 866 F.2d at 466-67. While timely disposition of
attorneys' fees claims is important, there is nothing
time-sensitive about deciding a petition for attorneys' fees. The
imperative behind expeditious review of hearing officer decisions
the prompt finalization of educational placements in order to
reduce injury to the child caused by delay in placement is
completely absent in a fee petition case. See Zipperer v.
School Board of Seminole County, 111 F.3d at 851 ("the
resolution of claims for attorneys' fees is less urgent and, in
reality, is more likely to be resolved by the attorneys' interest
in prompt payment than by a short period of limitations") B.K.
v. Toms River Board of Education, 998 F. Supp. at 471 ("The
policy favoring quick decisions regarding the child's placement
is simply inapplicable in [the attorneys' fee] context.");
Michael M. v. Board of Education of the New York City School
District, 686 F. Supp. 995, 1001-02 (E.D.N.Y. 1988). Indeed, a
short statute of limitations in attorneys' fees cases actually
would frustrate the policy of the IDEA by making it more
difficult for special needs children and their parents to get rigorous advocates to represent them. See J.B.
v. Essex-Caledonia Supervisory Union, 943 F. Supp. at 390.
Moreover, a longer limitations period will promote greater
attorney representation of parents and their children in IDEA
proceedings and also will provide more time for settlement
discussions with respect to attorneys' fee petitions, thereby
making civil litigation over attorneys' fees less likely and
conserving judicial resources. See Kaseman v. District of
Columbia, Civil Action No. 03-1858, Memorandum Opinion at 6-7
(D.D.C. July 7, 2004) (Huvelle, J.) ("a longer limitation period
. . . provides a more realistic opportunity for negotiation and
settlement of fee petitions"); B.K. v. Toms River Board of
Education, 998 F. Supp. at 471 (longer limitations period allows
time for and encourages settlement). The three-year limitations
period also may permit plaintiffs' counsel to file actions that
include multiple fee requests; while each fee petition will be
considered separately, combining them in one complaint avoids
burdening the Court with multiple actions. In this case, for
instance, plaintiffs could have filed 94 separate actions rather
than one. The Court therefore adopts the three-year limitations
period provided in D.C. Code Section 12-301(8).*fn1
Plaintiffs' claims for attorneys' fees therefore are timely
because plaintiffs filed their complaint within three years of
receipt of the initial partial payments by defendants.*fn2 B. Prevailing Party Status Under Buckhannon
The Court next will address defendants' motion to dismiss under
Rule 12(b)(6) on the basis of the Buckhannon decision. The
Buckhannon question is whether those plaintiffs who entered
into settlement agreements during the administrative proceedings
are "prevailing parties" for the purpose of Section 1415(i)(3)(B)
of the IDEA. Defendants move to dismiss on the ground that the
settling plaintiffs do not qualify. Prior to 2001, courts applied
the "catalyst" theory to determine whether a plaintiff was a
"prevailing party" under fee-shifting statutes such as the IDEA.
See Smith v. Roher, 954 F. Supp. 359, 363 (D.D.C. 1997)
(catalyst theory applied to IDEA fee claim); see also
Blackman v. District of Columbia, 59 F. Supp.2d 37, 41 (D.D.C.
1999) (catalyst theory applied in 42 U.S.C. § 1983 context). In
2001, however, the Supreme Court in Buckhannon Board & Care
Home, Inc. v. West Virginia Dept. of Health & Human Resources,
532 U.S. 598 (2001), changed the landscape for awarding
attorneys' fees under fee-shifting statutes by rejecting the
"catalyst" theory and adopting a more stringent definition of
In Buckhannon, the plaintiffs operated assisted living care
homes that failed an inspection by the state fire marshal because
some of the residents were incapable of "self-preservation" as
defined under state law. In response, the plaintiffs filed suit
charging that the "self-preservation" requirement violated the
Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et seq., and the Americans with Disabilities Act of
1990, 42 U.S.C. § 12010 et seq. See Buckhannon Board & Care
Home, Inc. v. West Virginia Dep't of Health & Human Resources,
532 U.S. at 600-01. While the suit was pending, the state
legislature enacted two bills eliminating the provisions in
question, and the district court granted the defendants'
subsequent motion to dismiss on the ground of mootness See
id. at 601. The plaintiffs then sought attorneys' fees and
costs as prevailing parties under the FHAA,
42 U.S.C. § 3613(c)(2), and the ADA, 42 U.S.C. § 12205, arguing that under
the "catalyst theory," they had "achiev[ed] the desired result
because the lawsuit brought about a voluntary change in the
defendant's conduct." Id. at 601.
The Supreme Court rejected the plaintiffs' claim, concluding
that the "catalyst theory" was an impermissible basis for the
award of attorneys' fees under the statute. See Buckhannon
Board & Care Home, Inc. v. West Virginia Dep't of Health & Human
Resources., 532 U.S. at 610. Rather, the Court concluded, there
must be an "alteration in the legal relationship of the parties"
that has been given some judicial imprimatur in order to
qualify as a "prevailing party" under fee-shifting statutes.
Id. at 605. This definition includes, inter alia, enforceable
judgments on the merits and court-ordered consent decrees because
both "create the `material alteration of the legal relationship
of the parties' necessary to permit an award of attorney's fees."
Id. at 604 (quoting Texas State Teachers Assn. v. Garland
Independent School District, 489 U.S. 792, 792-93 (1989)). The
Supreme Court noted that attorneys' fees normally would not be
available to parties that reach private settlements because such
agreements "do not entail the judicial approval and oversight
involved in consent decrees." Buckhannon Board & Care Home, Inc.
v. West Virginia Dep't of Health & Human Resources, 532 U.S. at
604 n. 7. While the Court did not address fees in the context of the IDEA
expressly, the Supreme Court indicated that its reasoning applied
to analogous fee-shifting statutes. See Buckhannon Board &
Care Home, Inc. v. West Virginia Dep't of Health & Human
Resources, 532 U.S. at 603 n. 4 (Court interprets fee-shifting
statutes such as the FHAA, the ADA, the Voting Rights Act and the
Civil Rights Attorney's Fees Awards Act "consistently.").
Subsequent to Buckhannon, numerous circuits have concluded that
the Buckhannon "prevailing party" standard applies to requests
for attorneys' fees under the IDEA. See Doe v. Boston Public
Schools, 358 F.3d 20, 26 (1st Cir. 2004) (under Buckhannon,
"IDEA plaintiffs who achieve their desired result via private
settlement may not, in the absence of judicial imprimatur, be
considered `prevailing parties'"); T.D. v. LaGrange School
District No. 102, 349 F.3d 469, 482 (7th Cir. 2003) ("lacking
the judicial imprimatur to elevate [plaintiff] to status of
prevailing party" Buckhannon precludes award of fees under IDEA
for parties who settle civil action); G v. Fort Bragg Dependent
Schools, 343 F.3d 295, 310 (4th Cir. 2003) (Buckhannon
applicable to IDEA); John T. v. Delaware County Intermediate
Unit, 318 F.3d 545, 558 (3d Cir. 2003) (Buckhannon applicable
to IDEA); J.C. v. Regional School District 10, Board of
Education, 278 F.3d 119, 125 (2d Cir. 2002) (Buckhannon
precludes fee award under IDEA if parties settled during
In addition, several other members of this Court have concluded
that Buckhannon precludes a fee award under the IDEA to
plaintiffs who settle their claims during the administrative
process. See Adams v. District of Columbia, 231 F. Supp.2d 52,
55-56 (D.D.C. 2002) (Leon, J.) (Buckhannon precludes fee
award under IDEA if parties settled during administrative
proceedings); Alegria v. District of Columbia, Civil Action No.
00-2582, 2002 U.S. Dist. LEXIS 16898, at *6 (D.D.C. Sept. 9, 2002) (Kessler,
J.) (same); Heintz v. District of Columbia, Civil Action No.
01-1124 (CKK), Memorandum Opinion at 8 (D.D.C. April 26, 2002)
(Kollar-Kotelly, J.) (same). But see Johnson v. District of
Columbia, 190 F. Supp.2d 34, 44 (D.D.C. 2002) ("Buckhannon
does not preclude an award of fees to plaintiffs who settle IDEA
claims during either administrative or judicial proceedings.")
(Sullivan, J.). This Court concludes that Buckhannon is
applicable to the IDEA and precludes a fee award to those parties
who settled their claims against DCPS during the course of
administrative proceedings and do not obtain a subsequent court
order enforcing the settlement agreement.*fn3
Plaintiffs argue that despite this conclusion, there are three
grounds on which defendants are foreclosed from raising
Buckhannon as a defense to payment in the instant matter: (1)
defendants cannot challenge plaintiffs' "prevailing party" status
because defendants already have paid a portion of plaintiffs'
fees; (2) Buckhannon should not be applied retroactively; and
(3) defendants are equitably estopped from challenging payment in
light of the Perelman Memorandum, which constituted a formal,
written policy on the issue of attorneys' fee reimbursements for
cases resulting in settlement agreements. The Court concludes
that none of plaintiffs' arguments withstands scrutiny.
First, prior payments cannot have the legal effect of
conferring a statutory right to receive fees if one does not
exist. Only Congress has the capacity to establish such a right.
See Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of
Health & Human Resources, 532 U.S. at 602 ("[W]e follow `a
general practice of not awarding fees to a prevailing party
absent explicit statutory authority.'") (quoting Key Tronic
Corp. v. United States, 511 U.S. 809, 819 (1994)). Second,
retroactive application of Buckhannon to plaintiffs' fee
petitions is not improper. As Judge Kollar-Kotelly concluded, fee
awards for pre-Buckhannon settlements of IDEA claims at the
administrative stage may be precluded by the decision because
Buckhannon "`is the controlling interpretation of federal law
and must be given full retroactive effect in all cases still open
. . . whether such events predate or postdate our announcement of
the rule.'" Heintz v. District of Columbia, Civil Action No.
01-1124 (CKK), Memorandum Opinion at 11 (quoting Harper v.
Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993)). See
also Adams v. District of Columbia, 231 F. Supp.2d at 56 n.
3; J.S. v. Ramapo Central School District, 165 F. Supp.2d 570,
576 (S.D.N.Y. 2001).
Third, plaintiffs' estoppel argument based on the Perelman
Memorandum is unconvincing. While the doctrine of equitable
estoppel is applicable to government agencies, the court of
appeals has directed that such application "must be rigid and
sparing." ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111
(D.C. Cir. 1988). Furthermore, a case for estoppel against the
government must be "compelling" and must include "proof of each
of the traditional elements of the doctrine false
representation, a purpose to invite action by the party to whom
the representation was made, ignorance of the true facts by that
party, and reliance, as well as . . . a showing of an injustice
. . . and lack of undue damage to the public interest." Id.
(internal quotation omitted) (ellipses in original). With the
exception of two, all of the settlements at issue here were
entered into prior to the date of the Perelman Memorandum, August
29, 2001. See Complaint, Ex. 3, "DCPS Payments Record 1998-2001"
("Payment Record"). Plaintiffs therefore cannot show reliance on
any position announced in the memorandum with respect to the
pre-memorandum settlement agreements and their estoppel argument
therefore must fail.*fn4
Based on the foregoing analysis, the Court concludes that with
the exception of the two post-Perelman Memorandum settlements,
see supra at 15 n. 4, Buckhannon precludes an award of
attorneys' fees to those plaintiffs who entered into settlement
agreements during the administrative process because those
plaintiffs are not "prevailing parties" under Section
1415(i)(3)(B) of the IDEA. The Court therefore will grant
defendants' motion to dismiss and will deny plaintiffs' motion
for summary judgment with respect to those claims.*fn5 C. Impact of the Statutory Fee Cap
Defendants argue that plaintiffs' 43 remaining fee petitions,
which stem from counsel's efforts that resulted in favorable
HOD's for plaintiffs, must be dismissed as a matter of law
because the District of Columbia Appropriations Act of 2002
closed any window through which the outstanding balances
plaintiffs are claiming may have been sought. Before examining
this argument, a more detailed background on the history of the
Appropriations Act caps may be helpful. Responding to concerns regarding the growing percentage of
DCPS's budget that was used to pay attorneys' fee awards under
the IDEA, 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. The cap was enacted by both the
House and the Senate and became law when the President signed the
D.C. Appropriations bill. See Calloway v. District of
Columbia, 216 F.3d 1, 4 (D.C. Cir. 2000) (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)")). Specifically, Section 130 (1999)
provided, inter alia, that:
None of the funds contained in this Act may be made
available to pay the fees of an attorney who
represents a party in an action or an attorney who
defends an action, including an administrative
proceeding, brought against the District of Columbia
Public Schools under the Individuals with
Disabilities Education Act (20 U.S.C. § 1400 et seq.)
if (1) the hourly rate of compensation of the
attorney exceeds the hourly rate of compensation [of
$50.00] under section 11-2604(a), District of
Columbia Code; or (2) [t]he maximum amount of
compensation of the attorney exceeds [$1300.00,] the
maximum amount of compensation under section
11-2604(b)(1), District of Columbia Code, except that
compensation and reimbursement in excess of such
maximum may be approved for extended or complex
representation in accordance with section 11-2604(c),
District of Columbia Code.
Section 130 (1999). Congress included similar riders in the
appropriation bills for 2000, 2001, 2003 and 2004. 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 2002, however, Congress declined to attach a fee cap rider.
Instead, the appropriations legislation provided:
Notwithstanding 20 U.S.C. § 1415, 42 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)"). It is under this provision that plaintiffs filed suit
seeking additional payments pursuant to their prior fee requests.
While the 2002 Act did not include a statutory cap, Section
140 (2002) did include express language prohibiting the payment of
"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." Section 140 (2002). Section
140 (2002) also precluded use of future appropriations to pay for
such claims: "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." Id. (emphasis added). Plaintiffs concede that a statutory cap did apply to each fee
petition at issue here and that defendants paid each claim up to
the statutory maximum permitted by the cap. See PSMF ¶ 4 (in
each of plaintiffs' claims, "which occurred following the
commencement of the 1999 Fiscal Year, Plaintiffs were awarded
attorneys's fees based upon the District of Columbia
Appropriations Bill which placed hourly limitations on attorneys'
fee rates, as well as a per case cap"). Plaintiffs also do not
and cannot effectively challenge the validity of the caps in IDEA
cases in view of both this Court's and the court of appeals'
decisions in the Calloway case. See Calloway v. District of
Columbia, 216 F.3d at 9; Calloway v. District of Columbia,
Civil Action No. 99-0037, 1999 U.S. Dist. LEXIS 13751, at *2
(D.D.C. May 14, 1999). Under Calloway, as even defendants
concede, the Court can award but the District of Columbia cannot
pay an amount over the cap in any given year. See Defs.' Dism.
Mem. at 3-4. Defendants argue however, that in light of the plain
language of the prospective provision of Section 140 (2002),
defendants cannot pay and will never be required to pay more
than they already have paid with respect to these claims absent
another change in the statute.*fn6 The Court has no choice
but to agree, because that is precisely what Section 140 says.
The legislative history of the 2002 Act supports this
interpretation. In her comments on the proposed legislation, the
principal sponsor of the prospective legislative limitation,
Senator Kay Bailey Hutchison, expressly stated that the intent of
the provision was to "prevent an estimated $32 million in
retroactive attorney's fees from being awarded as threatened by
the D.C. Circuit Court. That court has ruled that should the cap
be lifted, they will go back and actually undo the will of Congress by awarding all the billed
attorney fees in excess of the caps during the last three years."
147 CONG. REC. S11515 (daily ed. Nov. 7, 2001) (statement of Sen.
Hutchison). From this statement it is clear that the intent
behind this provision was to preclude plaintiffs from receiving
payment for fees beyond the statutory caps already applied to
their claims from subsequent years' appropriations. In light of
the foregoing, plaintiffs' remaining claims must be dismissed as
The Court has concluded that the limitations period for
attorneys' fee actions brought pursuant to Section 1415(i)(3) of
the IDEA is three years. The Court therefore denies defendants'
motion to dismiss on the ground of untimeliness. Under
Buckhannon, however, those plaintiffs who settled their claims
at the administrative level are not prevailing parties under the
IDEA, and the Court therefore grants defendants' motion to
dismiss for failure to state a claim with respect to those
claims, with the exception of two claims. The Court further
concludes that with respect to the remaining claims, which
include those two claims excepted from dismissal under the
Buckhannon analysis and those petitions that stem from
plaintiffs' successful HOD's, defendants cannot pay more than
they previously have paid in view of the restrictions of Section 140 of the D.C. Appropriations Act of
2002. The Court therefore will grant defendants' motion to
dismiss and will deny plaintiffs' motion for summary judgment. An
Order consistent with this Opinion shall issue this same day.
SO ORDERED. ORDER
For the reasons stated in a separate Opinion issued this same
day, it is hereby
ORDERED that Defendants' Motion to Dismiss [12-1] is GRANTED;
FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment
[10-1] is DENIED; it is
FURTHER ORDERED that Plaintiffs' Motion for a Hearing [27-1] is
DENIED as moot; and it is
FURTHER ORDERED that this case is DISMISSED and that the Clerk
of the Court shall remove this case from the docket of the Court.
This is a final appealable order. See FED.R.APP.P. 4(a).