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B.L. v. Dist. of Columbia

April 9, 2007


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


This suit has been brought by minor children*fn1 through their parents and next friends against the District of Columbia and the District of Columbia Public Schools ("DCPS") for reimbursement of attorneys' fees and costs incurred in pursuing administrative complaints against DCPS under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.*fn2 Before the court is plaintiffs' motion for attorneys' fees and costs [#37]. Upon consideration of plaintiffs' motion, the opposition thereto, and the record of the case, the court concludes that the motion must be granted in part and denied in part.


Having previously granted partial summary judgment in favor of plaintiffs, the court must now assess this "fees-on-fees" motion and determine how much compensation to award plaintiffs for their attorneys' fees and costs incurred in their efforts in the present litigation. Defendants only challenge the motion in part, arguing that (1) their liability for reimbursement is limited by a statutory bar on payment of IDEA-related attorneys' fees, and that (2) plaintiffs' fees should be discounted because plaintiffs rejected an offer of judgment under Federal Rule of Civil Procedure 68.

The court has already addressed and rejected the first argument in its prior order. See Mem. Op., July 12, 2006, at 5 n.8. While the statute prohibits payment in excess of the enumerated cap, the court's ability to award fees is not limited thereby. Ibid.; see also Jester v. District of Columbia, 474 F.3d 820, 2007 WL 148830, at *2 (D.C. Cir. Jan. 23, 2007) (vacating a district court order requiring the District of Columbia to pay attorneys' fees in excess of $4,000 and stating that "[i]n Calloway v. District of Columbia . . . we held that the district court may award the full amount of attorney's fees, but the District cannot pay a fee award beyond the limit set by the cap"). The court agrees in part with the second argument.

A. Statutory Background

Rule 68 provides, in pertinent part:

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. An offer not accepted [within 10 days] shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

Fed. R. Civ. P. 68. Thus, a party who fails to accept an offer of judgment within ten days and thereafter recovers a less favorable result may not recover her own post-offer costs (including attorneys' fees), even where they would otherwise be available, and also must pay the offeror's post-offer costs. See Marek v. Chesny, 473 U.S. 1, 10 (1985) (holding that plaintiffs who reject Rule 68 offers equal to or greater than the amounts they eventually are awarded may not recover post-offer costs); see also Lang v. Gates, 36 F.3d 73, 76 (9th Cir. 1994) ("judgment[s] finally obtained" include dismissals pursuant to settlement agreements).

Application of Rule 68 in this context is not straightforward, however, because the award of fees in IDEA cases is governed by the IDEA itself. The IDEA provides that fees "may not be awarded and related costs may not be reimbursed . . . for services performed subsequent to" the submission of the offer where (1) defendants have submitted a "written offer of settlement to a parent"; (2) the offer is made within the time limits set forth in Rule 68; (3) the offer is not accepted within ten days; and (4) "the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement." 20 U.S.C. § 1415(i)(3)(D)(i) ("§ (D)(i)").*fn3 As is obvious, these limitations essentially incorporate most of the elements of Rule 68 and expand their application to all offers of settlement in IDEA cases.*fn4 There are two important wrinkles, however, in the IDEA: first, the statute does not explicitly incorporate Rule 68's imposition of the offeror's post-offer costs on offerees to whom the rule applies; second, a prevailing parent to whom § (D)(i) otherwise applies may nonetheless recover fees and costs if she was "substantially justified in rejecting the settlement offer." Id. § 1415(i)(3)(E) ("§ (E)"). All these determinations, which the parties have entirely failed to address, are mandatory, and the court enjoys no discretion regarding them.

B. Factual Background

Defendants submitted an offer of judgment on January 14, 2005, as to all thirty-eight plaintiffs in this suit. Defs.' Opp'n Ex. 1 (Taptich Ltr. to Eig) ("Offer"). As to ten of the plaintiffs, defendants offered to pay all of the claimed attorneys' fees and expenses, in addition to "reasonable attorneys' fees and costs accrued" in the present action as of the date of the offer. Ibid. Defendants also offered to pay for a portion of some of the plaintiffs' individual expert fees. Ibid.

Though the parties' briefs do not make the ensuing events crystal clear, it appears that none of the ten plaintiffs accepted this offer within ten days.*fn5 The offers were accepted as to two plaintiffs (M.B. and R.S.) apparently after the expiration of the ten days, and defendants rendered payment in full (i.e., paid what was offered in the letter), apparently also after the ten days, as to six other plaintiffs (C.D., Y.K., J.K. (as to one claim), B.R., A.S., and K.S.).*fn6 Another plaintiff (F.M.) was offered $100 in expert costs and recovered $0. The last of the ten plaintiffs (A.B.) received via ...

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