Blackman Ex Rel. Blackman v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 3, 2010 Decided January 28, 2011

No. 10-7019

MIKEISHA BLACKMAN, BY HER NEXT FRIEND MARY ANN

BLACKMAN, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:97-cv-01629)

Stacy L. Anderson, Assistant Attorney General, argued the

cause for appellants. With her on the briefs were Peter J.

Nickles, Attorney General, Office of the Attorney General for

the District of Columbia, Todd S. Kim, Solicitor General, and

Donna M. Murasky, Deputy Solicitor General. Robert C.

Utiger, Attorney, entered an appearance.

Shannen W. Coffin argued the cause for appellees. With

him on the brief were Ira A. Burnim, Lindsey B. Lang, and

Angela L. Lipscomb.

Before: SENTELLE, Chief Judge, BROWN, Circuit Judge, and

WILLIAMS, Senior Circuit Judge.

2

Chief Judge SENTELLE filed an opinion announcing the

judgment of the Court.

BROWN, Circuit Judge, and WILLIAMS, Senior Circuit

Judge, each filed opinions concurring in the result.

SENTELLE, Chief Judge: The District of Columbia appeals

from an attorneys’ fee award pursuant to the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA).

The District contends, as it did in the district court, that the

amount of the fee award ($1,454,030.22) unlawfully exceeds the

statutory fee cap of $4000. The district court held that the

statutory fee cap of $4,000 was not applicable to a class action

as a whole, but instead limited fees to $4,000 for each individual

student in the class. For the reasons set forth below, we agree

and affirm the judgment of the district court.

Background

This appeal marks the latest—hopefully, the last or near

last—chapter in the saga stretching back at least forty years of

families with disabled children seeking free appropriate public

education from the District of Columbia with frequent repair to

administrative and judicial remedy. The history goes back at

least to Mills v. Board of Education of the District of Columbia,

348 F. Supp. 866 (D.D.C. 1972). Since Mills, the controversy

has evolved through both individual and class actions, most

recently in two consolidated class actions now before the court.

Because the present appeal concerns only the discrete question

of the propriety of the fee award, we will not rehash the

extended substantive litigation.

In furtherance of the objectives of the IDEA, Congress has

provided for the award of attorneys’ fees to prevailing parents

of children with disabilities. Specifically:

3

(i) IN GENERAL – In any action or proceeding brought

under this section, the court, in its discretion, may award

reasonable attorneys’ fees as part of the costs–

(I) to a prevailing party who is the parent of a child with a

disability.

20 U.S.C. § 1415(i)(3)(B). In many of the numerous actions

against the District of Columbia, the courts awarded attorneys’

fees pursuant to the IDEA. Beginning in 1998, concerned about

the substantial cost to the District, Congress enacted a rider to

the FY 1999 annual appropriations act for the District of

Columbia instituting the first of a series of attempts at capping

the fees awarded. Omnibus Consolidated and Emergency

Supplemental Appropriations Act of 1999, § 130, Pub. L. No.

105-277, 112 Stat. 2681, 2681-138 to 2681-139 (1998). That

first fee cap limited attorneys’ fee awards in actions against the

District of Columbia Public Schools under the IDEA to the rate

paid to appointed counsel representing indigent criminal

defendants in the District of Columbia. The fee cap was

continued in FY 2000 and FY 2001 without significant change.

Although Congress made further changes, the enactment

pertinent to this action came in legislation enacted for FY 2003

and subsequent years which departed from the formula tying the

awards to rates for appointed criminal counsel and instead set a

flat $4000 figure as the limitation for “the fees of an attorney

who represents a party in an action . . . under the Individuals

with Disabilities Education Act . . . .”1 2006 District of

1

The full text of the statute reads:

Sec. 122. (a) None of the funds contained in this Act may be

made available to pay -

(1) the fees of an attorney who represents a party in an action

4

Columbia Appropriations Act § 122 (a)(1); Pub. L. No. 109-115,

119 Stat. 2396, 2519 (2005), cont’d in effect, Revised

Continuing Appropriations Resolution, § 101(a)(9), Pub. L. No.

110-5, 121 Stat. 8, 9 (2007).

Although the fee cap was lifted for proceedings initiated

after the effective date of the 2009 appropriations act, the

current litigation spans the period of the effectiveness of the cap

legislation and is not affected by the termination of fee cap

requirements. Therefore, the question before us depends upon

construction of the fee cap legislation.

Plaintiffs initiated the Blackman class action litigation in

July of 1997, and the case was certified as a class action in

October of that year. It was subsequently consolidated with

another class action, Jones v. District of Columbia, in May of

1998. In June of 1998, the district court granted summary

judgment in plaintiffs’ favor in both consolidated actions, a

ruling that the District never challenged. Although that

summary judgment terminated the liability issues in plaintiffs’

favor, the litigation continued through years of negotiation of the

or an attorney who defends an action brought against the

District of Columbia Public Schools under the Individuals

with Disabilities Act (20 U.S.C. § 1400 et seq.) in excess of

$4,000 for that action; or

(2) the fees of an attorney or firm whom the Chief Financial

Officer of the District of Columbia determines to have a

pecuniary interest, either through an attorney, officer, or

employee of the firm, in any special education diagnostic

service, schools, or other special education service providers.

(b) In this section, the term “action” includes an

administrative proceeding and any ensuing or related

proceedings before a court of competent jurisdiction.

5

remedy phase, which finally produced a consent decree in 2006.

While the parties were able to reach consent with respect to the

remedy, the question of attorneys’ fees remained in dispute.

The District did not contest the claim of plaintiffs’ counsel

that attorneys’ fees were in order under the IDEA, but

vigorously disputed the amount of the award. The continuing

fee dispute involved two separate fee petitions. The first

petition sought attorneys’ fees for the nine-year period from the

start of the lawsuit through July 26, 2006. The parties agreed

that an uncapped computation of the awardable fees for this

period would amount to $1,820,000. The District, however,

contended that the $4000 statutory fee cap applied. The

plaintiffs contended, and the district court held, that the fee cap

did not limit fees payable by the District to $4,000 for the entire

class action. That is, the statute by its terms applied to the “fees

of an attorney who represents a party in an action . . . .” 2006

District of Columbia Appropriations Act § 122(a)(1) (emphasis

added). Therefore, the district court ruled that the statute did not

govern the fees of attorneys representing multiple members of

a class rather than a single party and that plaintiffs’ counsel

would be entitled to reasonable attorneys’ fees “so long as the

District’s payment of such fees does not exceed $4000 per

plaintiff class member.” Petties v. District of Columbia, 538 F.

Supp. 2d 88, 96-97 (D.D.C. 2008) (“2008 Fee Cap Decision”).

The District did not appeal the fee award.

The second of the two fee petitions gives rise to the present

appeal. In March of 2009, plaintiffs’ class counsel petitioned for

attorneys’ fees of $1,938,239.70 for monitoring and compliance

work from July 26, 2006, when the consent decree was

presented to the court, through December 31, 2008. During the

ensuing dispute over the amount of the fee and an exchange of

legal arguments, including a surreply by the District, the District

did not raise any argument regarding the fee cap. Nor did it

6

raise the issue in a hearing on the fee petition on September 16,

2009. Finally, the District raised the fee cap issue in a

supplemental opposition to plaintiffs’ request for fees on

October 27, 2009, arguing that the $4000 limitation applied to

the class action.

On January 4, 2010, the district court entered an order

awarding counsel fees in the amount of $1,454,032.22.

Blackman v. D.C., 677 F. Supp. 2d 169, 180 (D.D.C. 2010)

(“2010 Fee Award Decision”). The District filed the present

appeal from that order.

Analysis

The District’s appeal is based entirely on its construction of

the fee cap statute, which it contends caps the awardable fees in

this class action at $4000. Plaintiff-appellees respond that the

cap is inapplicable to class actions but governs only the fees of

an attorney representing a single party in an action against the

District. Before reaching the question of statutory interpretation,

we first consider briefly two other issues raised by appellees

which they contend preclude the adjudication of the District’s

argument.

First, appellees contend that the District’s argument is

barred by the law of the case. Appellees contend that the district

court’s adoption of their interpretation of the fee cap statute as

not applying to class actions in the 2008 Fee Cap Decision,

which was not appealed by the District, decides the question.

We note that the 2010 order under review did not use the phrase

“law of the case,” but did seem to invoke it by stating, “the

Court has already considered this argument and rejected it.”

2010 Fee Award Decision, 677 F. Supp. 2d at 180. Arguably

then, the principle of consistency underlying the law of the case

doctrine could be held to preclude the District’s argument in the

7

present case. See, e.g., Arizona v. California, 460 U.S. 605, 619

(1983) (“[A] fundamental precept of common law adjudication

is that an issue once determined by a competent court is

conclusive.”). However, the district court did not simply rely on

its prior ruling as establishing controlling law of the case, but

rather reiterated its prior reasoning in explaining that

“[d]efendants have given the Court no reason to change its

earlier ruling, and it will not do so.” 677 F. Supp. 2d at 180.

Upon de novo review, we reach a similar conclusion on the

appropriate construction of the fee cap statute.

Secondly, appellees implicitly argue in their briefing of the

law-of-the-case theory that the District did not properly preserve

this fee cap issue in the district court and that we should

therefore treat the argument as abandoned or forfeited. We are

reluctant to treat as forfeited a substantive assertion of error

when the appellees themselves have only obliquely asserted

such waiver or forfeiture in their presentation of another

argument. Therefore, again we will bypass the suggested

preclusion of the issue and consider it on the merits.

Our analysis begins with the language of the statute. As the

district court stated:

The plain and unambiguous language of the fee cap statute

specifically precludes the District from paying fees in

excess of $4000 to “an attorney who represents a party in an

action” under the IDEA. See Pub. L. No. 109-115, 119

Stat. 2396, 2519 (2005).

2010 Fee Award Decision, 677 F. Supp. 2d 169, 180 (quoting

2008 Fee Cap Decision, 538 F. Supp. 2d at 96). We agree with

this obvious proposition.

8

We further agree with the district court that class counsel in

the consolidated class actions before the court “is not ‘an

attorney who represents a party in an action’ — class counsel in

Petties and class counsel in Blackman/Jones represent hundreds

and/or thousands of parties.” Id. Therefore, on the face of the

statute, the district court concluded that

the cap does not preclude the Court from ordering

defendants to pay and — more importantly — does not

preclude the defendants from paying reasonable attorneys’

fees to the plaintiff classes, so long as the total amount paid

by the defendants does not surpass the statutory fee cap

multiplied by the total number of members of the plaintiff

class.

Id.

As it is undisputed that the classes number in the hundreds,

if not thousands, the plain and unambiguous language of the

statute would seem to make the district court’s conclusion

unassailable and compel us to affirm the fee award order.

The District, however, contends that we should not stop

with the plain and unambiguous language of the statute. The

District bases its argument principally on the Dictionary Act, 1

U.S.C. § 1, which states, in relevant part, that “[i]n determining

the meaning of any Act of Congress, unless the context indicates

otherwise — words importing the singular include and apply to

several persons, parties, or things.” Thus, the District argues,

the words “an attorney” in the fee cap legislation should include

“attorneys” and the words “representing a party” should also

include attorneys representing “parties.” Under that

construction, the District contends, the fee cap would apply to

the attorneys representing the parties in class actions and should

cap the payable fees at $4000. We do not accept this

9

interpretation of the fee cap legislation.

By its terms, the Dictionary Act does not apply to pluralize

all nouns in all statutes. It is inapplicable if “the context

indicates otherwise.” The Supreme Court long ago told us that

the pluralization rule established in the Dictionary Act “is not

one to be applied except where it is necessary to carry out the

evident intent of the statute.” First Nat’l Bank in St. Louis v.

Missouri, 263 U.S. 640, 657 (1924). In the context of the fee

cap legislation, even the District concedes that the words “an

action” cannot logically be construed to refer to “actions.” Such

a construction, taken in conjunction with the District’s

pluralization of the other nouns, would compel the result that an

attorney who represented many different parents of disabled

children in many different actions could never be compensated

past the first $4000. Similarly, if we pluralized “attorney” and

“party” but not “action,” we would create an anomalous

situation. A class action with multiple named class members,

each having his or her own attorney, could result in a fee capped

at $4000 multiplied by the number of named plaintiffs with

separate counsel. But a class action with one or more individual

named class members represented by a single attorney would be

capped at $4000. Additionally, this construction would provide

a perverse incentive for breaking single class actions into

inefficient multiple actions to generate larger counsel fees in

direct contradiction of Congress’s apparent goal at reducing

costs.

To return to the admonition of First National Bank, the

“evident intent” of the statute is to address individual IDEA

proceedings, not class actions. We therefore agree with the

district court’s conclusion that the plain and unambiguous

language of the statute controls, and the fee cap is not applicable

in this case.

10

Accordingly, the order of the district court is

Affirmed.

BROWN, Circuit Judge, concurring: The court affirms

the district court’s award of more than $1.4 million in

attorneys’ fees. This is in addition to an earlier award of $1.8

million in this class action, which has now lasted fourteen

years. These serial fee disputes are the latest chapter in a saga

the court describes as “stretching back at least forty years.”

Maj. Op. 2. Although the legal result is defensible, the

practical effect is reprehensible. The only segment of the

population well-served by this aspect of the IDEA program is

the lawyers who litigate these cases.

The District argues that the $4,000 fee cap provides a

ceiling even for a class action; the plaintiffs insist the fee cap

does not apply to class actions at all. I agree with the

plaintiffs. But this court apparently concludes that while the

cap does not limit fees in class actions to $4,000, it establishes

an upper bound. See Maj. Op. 5, 9–10; Williams, J.,

concurring, at 5. Thus, counsel in a class action would be

entitled to reasonable attorneys’ fees so long as the fees do not

exceed “$4,000 per student in the class.” Williams, J.,

concurring, at 5. Yet the fee cap legislation—reenacted

several times—says nothing about class actions. In the

absence of any express prohibition, a court could decide the fee

cap is irrelevant to the question of class action fees and resort

to a reasonable lodestar calculation. See, e.g., Clackamas

Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 447

(2003) (“[C]ongressional silence often reflects an expectation

that courts will look to the common law to fill gaps in statutory

text . . . .”). Because under either approach the bottom line

would be indistinguishable, I concur in the result. But I write

separately because I wonder if class actions—which fall

outside the fee cap paradigm—should be certified for IDEA

claims and because the focus on fee caps seems both futile and

pernicious.

2

I

I begin with the issue of statutory interpretation. We

could—and probably should—derive a different principle

from congressional silence on the subject of class actions.

Since Congress clearly did not contemplate such representative

actions and made no provision for compensating broad

systemic attacks, the statute’s silence challenges the propriety

of class actions under the auspices of IDEA. Indeed, the very

structure of the statutory scheme undermines the validity of

class actions in this context.

When IDEA was enacted in 1975, its goals were lofty but

attainable; IDEA aimed to provide a “free appropriate public

education” for children with special educational needs.

Education of All Handicapped Children Act, Pub. L. No.

94-142, § 612, 89 Stat. 773 (1975) (codified as amended as the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400

et seq). (1982). To achieve this goal, IDEA mandated that

participating states identify these children and then work

cooperatively with parents, teachers, and administrators to

develop individualized education plans suitable to each child’s

needs and abilities. Pub. L. No. 94-142, § 613–14.

IDEA’s remedial system was not intended to be

adversarial; although Congress anticipated that disagreements

would arise that required legal intervention, Congress’s aim

was to resolve disputes amicably—litigation seemingly was

intended as a last resort. See Pub. L. No. 94-142, § 615

(listing a due process hearing last on the list of procedural

safeguards); see also 20 U.S.C. § 1415(e)–(f) (1997). And

Congress certainly did not anticipate that attorneys’ fees would

become the focus of any litigation that ensued. See H.R. Rep.

3

No. 105-670, at 21 (Committee on Appropriations) (deciding

in 1999 to cap attorneys’ fees so that “the District’s compliance

with [IDEA] will focus more clearly on teaching and learning

rather than on litigation and expensive legal fees”). In fact,

Congress affirmed this understanding of IDEA’s original

purpose as recently as 2005, when it amended the statute to

allow a state or local educational agency to recoup attorneys’

fees from parents who file frivolous or unfounded complaints.

20 U.S.C. § 1415(h)(3)(B)(i)(II)–(III). By amending the

statute, Congress implicitly recognized that IDEA was being

distorted; it was no longer simply a means to improve primary

education, but was becoming a breeding ground for vexatious

and costly litigation. See id. (permitting state and local

agencies to recoup fees when the parent’s cause of action was

intended “to harass, to cause unnecessary delay, or to

needlessly increase the cost of litigation”).

IDEA’s singular focus on an individualized, cooperative

educational approach providing customized remedies makes

Congress’s neglect of broad-based actions understandable and

renders IDEA actions ill-suited to class-wide relief. The

Federal Rules of Civil Procedure demonstrate perfectly why

this is so. Federal Rule of Civil Procedure 23(a) sets forth

four prerequisites for the certification of a class. If those

prerequisites are met, a class will only be certified if the

plaintiffs can establish their case fits within one of the three

categories of subsection (b).

Paragraph (b)(2) of Rule 23, the basis of class certification

in this case, see Oct. 22, 1997 Mem. & Order Certifying the

Class at 2, permits a class action if “the party opposing the

class has acted or refused to act on grounds that apply

generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the

class as a whole.” To satisfy this test, class claims must be

4

“sufficiently cohesive to warrant adjudication by

representation.” Amchem Products, Inc. v. Windsor, 521 U.S.

591, 623 (1997). This requirement stems from the

understanding that even unnamed class members are bound by

a Rule 23(b)(2) class action without the opportunity to opt out.

See In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002).

Accordingly, cohesiveness is a significant touchstone of a

(b)(2) class. See Barnes v. Am. Tobacco Co., 161 F.3d 127,

142–43 & n.18 (3d Cir. 1998).

As is probably true for most IDEA-spawned class actions,

this class action raises a significant question about whether the

class claims are sufficiently cohesive to merit certification.

Certainly, at some level of abstraction, a degree of cohesion

will exist in almost any putative class. But this does not mean

it is prudent to generalize to such a degree, especially when

IDEA operates from the premise that each child will have

unique disabilities and presumes that each program will be

personalized. See Pub. L. No. 94-142, § 613–14; cf. J.B. ex

rel. Hart v. Valdez, 186 F.3d 1280, 1288–90 (10th Cir. 1999)

(affirming denial of class certification when alleged “systemic

failures” too broadly defined the claims at issue, amounting to

a lack of commonality under 23(a)(2)).

Moreover, it is patently evident the District is frequently

unable to comply with IDEA. See, e.g., Letter from Patricia

Guard, Acting Director of Special Education Programs to

Superintendent Gist, at 1 (June 15, 2007),

http://www2.ed.gov/fund/data/report/idea/partbspap/2007/dc-

aprltr-2007b.doc (last visited Jan. 12, 2011) (“[T]he District of

Columbia needs intervention in meeting the requirements of

Part B of the IDEA.”). The question then is not one of fault

but one of remedy—and any remedy will necessarily be unique

to a particular child. This means the District’s systemic

failures have little impact on the ultimate question courts now

5

face; even assuming the District violated its IDEA obligations

as to each plaintiff, any relief will be “dependent upon that

particular student[’s] needs, capabilities, and the IEP in place

for that child.” Blunt v. Lower Merion Sch. Dist., 262 F.R.D.

481, 489–90 (E.D. Pa. 2009). In fact, even the class

certification and ultimate liability determination in this case

did little to achieve the personalized remedies plaintiffs

sought; many class plaintiffs proceeded to file individual

motions for preliminary injunctions “based on their unique

circumstances.” Appellants’ Br. at 10. That this class action

failed to provide the specialized relief plaintiffs desired only

further supports the notion that the class action is an

inappropriate vehicle for these claims.

Indeed, we have recognized the individual nature of

IDEA’s remedies, and consequently have declined to fashion

“cookie-cutter” compensatory relief. Reid ex rel. Reid v.

District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005)

(“[J]ust as IEPs focus on disabled students’ individual needs,

so must awards compensating past violations rely on

individualized assessments.”). I see no reason why these

considerations should not be decisive when it comes to class

certification, and decisions in several other jurisdictions

support this view. See Blunt, 262 F.R.D. at 489–90 (refusing

to certify a class in part because “individual determinations,

which must be made to determine whether a particular student

falls within the class definition and whether such student has a

cause of action, weigh against certifying this class”); M.A. ex

rel. E.S. v. Newark Public Schs., No. 01-3389, 2009 WL

4799291, at *15 (D.N.J. Dec. 7, 2009) (unpublished)

(declining to certify a (b)(2) class for lack of cohesion, which

resulted from the necessity of individualized circumstances

and remedies); cf. McClendon v. Sch. Dist. of Phila., No.

04-1250, 2005 WL 549532, at *4–5 (E.D. Pa. Mar. 7, 2005)

(unpublished) (denying class certification because named class

6

members failed to satisfy Rule 23(a)(4)’s typicality

requirement in that the remedy sought was individualized in

nature). Because the ultimate relief in an IDEA action is

unique to each plaintiff, any putative IDEA class quite

arguably suffers from a lack of cohesion. Although it is too

late for this court to consider the issue, hereafter courts should

give significant consideration to the question of whether a

class action is the appropriate vehicle for an IDEA case—at

least for one seeking individual remedies.

II

The problem of IDEA litigation is not the only problem

that needs a remedy. IDEA’s focus from the outset was the

child—recognizing that individual children required

individualized educational strategies to ensure their learning

success, IDEA outlined a cooperative statutory scheme. See

Pub. L. No. 94-142, § 614 (“A local educational

agency . . . shall . . . establish a goal of providing full

educational opportunities to all handicapped children,

including . . . the participation and consultation of the parents

or guardian of such children . . . .”). But the individualized,

cooperative educational system IDEA envisioned was quickly

overwhelmed in the District of Columbia.

Here the IDEA system is anything but cooperative.

Because the District is perpetually unable to comply with

IDEA’s mandates, parents have sought to enforce their rights

in court—a situation IDEA contemplates, but one surely not

intended to be the norm. See 20 U.S.C. § 1415. It has

become so routine to “lawyer-up” and go to court, IDEA has

morphed from a system intended to benefit children to a

system that provides full employment to a specialized cadre of

lawyers. And this case is a perfect (yet terrible) illustration of

the transformation IDEA has undergone within the sixty-eight

7

square miles of the nation’s capital. Rather than fulfilling

IDEA’s promise to educate the individual child, this lawsuit

involves more than six-thousand plaintiffs. It has lasted more

than a dozen years. Plaintiffs who were in grade school when

this case began long ago graduated (or dropped out). Some

may have children of their own who are being victimized by

the District’s dysfunction. If we have learned anything from

decades of IDEA litigation, it is this: when the system is

broken, litigation will not fix it.

Congress itself has recognized the problems plaguing

IDEA litigation in the District, and has attempted to re-order

the program’s incentives over the last twelve years by enacting

statutory caps on the fees attorneys may be awarded for their

work representing IDEA plaintiffs. But the fee cap has been

limited; each renewal faced strong opposition. Some years

the cap was tabled entirely, and as it currently stands, the fee

cap only applies retroactively to cases initiated prior to 2009.

Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, 123

Stat. 524, 697–98 (2009). As this case and others like it

demonstrate, Congress’s efforts seem to have been misguided.

Congress has focused on attorneys’ fees, but fees are only a

visible symptom of a more fundamental failure. The District

is frequently unable to provide an adequate education for

special needs children because the District struggles to provide

an adequate education for any children.

Here, the per-pupil costs of education are astronomical,

yet the District suffers from an inversely proportionate success

rate. For the 2006–2007 school year, the Institute of

Education Sciences (“IES”) calculated educational spending in

the District at $20,596 per pupil, National Center for Education

Statistics,

http://nces.ed.gov/programs/digest/d09/tables/dt09_186.asp

(last visited Jan. 12, 2011) (hereinafter “Table 186”); some

8

estimates are even higher, Andrew Coulson, Do You Still

Think DC Spends only $15,000/Pupil?, (Feb. 19, 2010)

http://www.cato-at-liberty.org/do-you-still-think-dc-spends-o

nly-15000pupil/ (last visited Jan. 12, 2011) (follow “Excel

spreadsheet file” link to 2008–2009 data sheet) (calculating the

annual cost per pupil to be $28,169.91 in 2009). Even using

the lower figure for consistency across comparisons, this

means the District outspends some of the most heavily

populated states, including California ($9,364), Florida

($9,391), Pennsylvania ($12,440), New York ($17,818), and

Texas ($8,798). Table 186. In fact, according to the IES

compilation, the District outpaces every single state in

per-pupil spending. Id. But the District’s graduation rate is

well-below the national average, which was 74.7% in

2004–2005 (the last year for which data was available).

National Center for Education Statistics,

http://nces.ed.gov/pubs2009/dropout07/tables/table_13.asp

(last visited Jan. 12, 2011). For that same period, the

District’s graduation rate was 68.8%—the twelfth lowest rate

in the country. Id. And IDEA litigation costs the District in

excess of $10 million each year in attorneys’ fees. D.C.

Office of the Att’y Gen.

http://newsroom.dc.gov/show.aspx/agency/occ/section/2/relea

se/15655/year/2008 (last visited Jan. 12, 2011).

All that money has failed to stem the tide of IDEA

litigation. This tiny district with fewer than 50,000 pupils has

more IDEA suits than the largest school systems in the nation.

See Deborah K. Nichols, Auditor, Office of the District of

Columbia Auditor, Flawed Processes and Ineffective Systems

of Accountability Pertaining to DCPS’ Special Education

Program Have Resulted in Costly Legal Fees and Exorbitant

Charges for Related Services and Nonpublic Tuition, at 24

(May 9, 2003) http://dcauditor.org/dca/reports/dca0303.pdf

(last visited Jan. 12, 2011) (explaining that in 2002, the District

9

of Columbia Public Schools received more due process

hearing requests (3,044) than the entire state of California

(2,670), even though the District’s entire student population

numbers less than 50,000, while in California the special

education population alone numbers 670,000 students).

The solution to the District’s failure as an educational

provider is not mysterious. It does not depend on how well or

how poorly lawyers get paid for representing dissatisfied

parents. Even in the District, there are bright spots. For

example, the Seed School, which is a charter school serving the

District of Columbia, has experienced a 96% rate of college

acceptance and a 95% rate of college enrollment among its

students. The Seed School of Washington,

http://www.seedschooldc.org/ (last visited Jan. 12, 2011).

And the Seed School achieves these successes educating the

very same children the District is unable to assist; in fact, the

Seed School accepts applications on a lottery basis, ensuring

that selection is not based on demonstrated academic ability.

The Seed School of Washington, Admissions,

http://www.seedschooldc.org/page.php?pid=63 (last visited

Jan. 12, 2011). Similarly, the Friendship Public Charter

School, which is publicly funded in its entirety, has produced

significant results; students have exceeded state academic

requirements for six years running. Friendship Public Charter

School, About: Welcome from the Chairman,

http://www.friendshipschools.org/RelId/606513/ISvars/defaul

t/Welcome_from_the_Chairman.htm (last visited Jan. 12,

2011). Programs like those offered by the Seed School and

the Friendship Public Charter School demonstrate that these

children can achieve academically, if given the proper

guidance. But such guidance need not necessarily take the

form of paid legal representation. The sixty-eight square

miles of the federal city probably has more JDs and PhDs per

capita than any other spot in America, yet it lags behind states

10

like Pennsylvania and Ohio where parents are often guided

through the IDEA process by a corps of parent volunteers. See,

e.g., Dr. Edward Feinberg, The Role of Attorneys in Special

Education Mediation,

http://www.mediate.com/articles/cadre4.cfm (last visited Jan.

12, 2011) (discussing Pennsylvania’s system of non-attorney

“advocates” and Ohio’s successful parent mentor program).

The District of Columbia Public Schools’ biggest problem

should be having more pro bono services offered than it can

use. Instead, in the bizarro world inhabited by the District, the

more its student population shrinks, the bigger its legal bills

grow. If there is an answer to this problem, it will likely come

from concerned parents, committed teachers, and

conscientious volunteers. One thing is clear. It will not

come from adjusting the spigot directing the flow of public

funds to lawyers.

WILLIAMS, Senior Circuit Judge, concurring in the

judgment: I write separately to explain why appellees’

purported “law of the case” argument must be rejected and to

offer a somewhat different interpretation of the statute from

that of Chief Judge Sentelle.

Law of the Case; Waiver and Forfeiture

Under the doctrine of “law of the case,” a court may

decline to reconsider the merits of its own prior rulings when

the same point of law arises for the second time in the same

case. The panel rightly notes that law of the case was not the

basis of the district court’s decision. Maj. Op. at 7; see also

2010 Fee Award Decision, 677 F. Supp. 2d at 180.

More importantly, application of “law of the case” by a

lower court, no matter how correct, cannot, as a logical

matter, preclude review on the merits by a higher court. In

Christianson v. Colt Industries Operating Corp., 486 U.S. 800

(1988), the Court initially determined that the Federal Circuit

lacked jurisdiction for the decision under review (compelling

vacatur). It then examined and emphatically rejected the

respondent’s claim that it was entitled to preserve its victory

in the Federal Circuit on a law of the case theory. The Court

explained that respondent was wrong on a number of grounds,

including the inconvenient fact that the first of multiple

decisions on jurisdiction had rejected Federal Circuit

jurisdiction. But the Court went on to give the clincher:

Most importantly, law of the case cannot bind this Court

in reviewing decisions below. A petition for writ of

certiorari can expose the entire case to review. Panama

R. Co. v. Napier Shipping Co., 166 U.S. 280, 283-284

(1897). Just as a district court’s adherence to law of the

case cannot insulate an issue from appellate review, a

2

court of appeals’ adherence to the law of the case cannot

insulate an issue from this Court’s review. See

Messenger [v. Anderson, 225 U.S. 436], at 444 [(1912)];

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240

U.S. 251, 257-259 (1916).

486 U.S. at 817-18.

To see why the appellate court cannot treat an issue as

resolved simply because the district court has correctly

applied law of the case, consider the following two scenarios.

In both the district court addresses the same issue twice, and

in both there had been neither an intervening trip to the court

of appeals nor a final appealable judgment that would allow a

party access to the court of appeals.

In the first scenario, the district court looks at the issue

and decides; then, when it comes up again, the court carefully

reconsiders the matter, adds new reasoning, introduces new

subtleties, and comes out the same way. The court of appeals

might find the new reasoning persuasive, or it might not. In

any event, it would not skip the issue simply because the

district court considered it twice.

In the second scenario, the district court resolves the

question once, and then, on the issue’s recurrence, invokes

law of the case. Determining, correctly, that none of the

reasons not to apply law of the case is present, it sticks with

its first resolution. It would surely be nonsense to say, in this

scenario, that the court of appeals cannot, or should not, face

the issue (assuming it’s otherwise properly presented,

necessary to the outcome, etc.).

Appellees here rely on a number of decisions in which we

have spoken of “law of the case” as the reason to affirm a

district court decision that had applied that doctrine.

3

Kimberlin v. Quinlan, 199 F.3d 496 (D.C. Cir. 1999);

Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810

F.2d 243 (D.C. Cir. 1987) (using terms waiver and law of the

case); see also Laffey v. Northwest Airlines, Inc., 740 F.2d

1071, 1089-90 (1984) (similarly using terms waiver and law

of the case); United States v. Alaw, 327 F.3d 1217, 1219 (D.C.

Cir. 2003) (using term law of the case). But in fact, as we

have recognized, these cases all involved situations where a

party had participated in a prior appeal that afforded an

opportunity to obtain appellate reversal. See Crocker v.

Piedmont Aviation, Inc., 49 F.3d 735, 738-41 (D.C. Cir.

1995). (Kimberlin and Alaw, though following Crocker, are

no different in this.) In such cases the appellate court is not

abdicating substantive review on the ground that the district

court properly decided not to replow what was for it old

ground, but rather is justifiably treating a party as having

abandoned an opportunity for appellate review. As we

observed in Crocker, the correct name for such a doctrine is

waiver. Crocker, 49 F.3d at 739; see also 18B Charles Alan

Wright, Arthur R. Miller, & Edward H. Cooper, Federal

Practice and Procedure § 4478.6 (4th ed. 2008); U.S. v. Henry,

472 F.3d 910, 913 (D.C. Cir. 2007) (applying the concept

under the waiver label); Northwestern Indiana Telephone Co.,

Inc. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989) (same, but

also applying “law of the case” to another issue, previously

decided by our court, i.e., in the standard domain of law of the

case).

But the term waiver is sensibly confined to the situation

where there actually has been a prior appeal, as opposed to

the present case, where an issue was decided in an earlier

ruling that was final and appealable at the time but which the

losing party never appealed on any grounds. Wright, Miller

4

and Cooper classify such a case, that of a mere prior

opportunity for an appeal, as one of “forfeiture.” Id.1

Three other circuits have each, on at least one occasion,

invoked the forfeiture principle to justify refusal to consider

the merits of issues on appeal. See Little Earth United Tribes,

Inc. v. Dept. of Housing and Urban Development, 807 F.2d

1433, 1438 (8th Cir. 1986); ABC, Inc. v. Nameloc, Inc., 403

F.3d 607, 610-11 (8th Cir. 2005); Griffin v. Michigan Dept. of

Corrections, 5 F.3d 186, 190 (6th Cir. 1993); Martinez v.

Roscoe, 100 F.3d 121, 123 (10th Cir. 1996). No case from

our court has applied—or, indeed, rejected—a claim of

forfeiture based on failure to exercise a right to appeal a final

order. Even in the waiver context, where the case for barring

an unasserted claim is stronger because the case itself has

already occasioned appellate court consideration, we have

noted that the doctrine is “even one notch weaker” than law of

the case. Crocker, 49 F.3d at 740. In this instance, I see no

reason to treat the fee cap argument as forfeit. The 2008 Fee

Award Decision was arguably a final and appealable

judgment. See Gates v. Rowland, 39 F.3d 1439, 1450 (9th

Cir. 1994). But if this is so, it was less than plainly obvious

under the law of this circuit, and appellees, whose award

1

Although appellees in their brief framed their

argument as one of “law of the case,” they acknowledged in

oral argument that there was some ambiguity regarding which

label to use in this instance. See Transcript of Oral Arg. at

19. And they cited cases from the Eighth Circuit that clearly

invoke the principle of forfeiture, although failing to

distinguish it from waiver and law of the case. See Transcript

of Oral Arg. at 19, 20 (mentioning Little Earth United Tribes,

Inc. v. Dept. of Housing and Urban Development, 807 F.2d

1433 (8th Cir. 1986); ABC, Inc. v. Nameloc, Inc., 403 F.3d

607 (8th Cir. 2005)).

5

under the 2008 Fee Award Decision is not at issue in this

appeal, were not significantly disadvantaged by appellants’

failure to appeal the fee cap issue until 2010. (The bulk of the

fees at issue here were incurred before the 2008 ruling and

thus, obviously, well before the District had any opportunity

to appeal that decision.)

Statutory Analysis

Although I concur in Chief Judge Sentelle’s ultimate

judgment that the fee cap statute permits awards of attorneys’

fees up to $4,000 per student in the class, I do not agree that

the fee cap statute is “plain and unambiguous” with respect to

class actions. The fee cap states that

Sec. 122. (a) None of the funds contained in this Act may

be made available to pay –

(1) the fees of an attorney who represents a party in

an action or an attorney who defends an action

brought against the District of Columbia Public

Schools under the Individuals with Disabilities

Education Act (20 U.S.C. 1400 et seq.) in excess of

$4,000 for that action; or

(2) the fees of an attorney or firm whom the Chief

Financial Officer of the District of Columbia

determines to have a pecuniary interest, either

through an attorney, officer, or employee of the firm,

in any special education diagnostic service, schools,

or other special education service providers.

(b) In this section, the term “action” includes an

administrative proceeding and any ensuing or related

proceedings before a court of competent jurisdiction.

6

2006 District of Columbia Appropriations Act § 122; Pub. L.

No. 109-115, 119 Stat. 2396, 2519 (2005), cont’d in effect,

Revised Continuing Appropriations Resolution, § 101(a)(9),

Pub. L. No. 110-5, 121 Stat. 8, 9 (2007).

A literal reading of the statute would award $4,000 to

every individual attorney who represents a party. As Chief

Judge Sentelle’s opinion points out, this would lead to an

absurd result. A per party cap also cannot be understood

literally, as it would seem to imply a ceiling of $8000 when

two parents sue on behalf of their child, as each would be “a

prevailing party who is the parent of a child with a disability.”

See 20 U.S.C. § 1415(i)(3)(B). Instead, one must read “party”

to refer to a student, or the student’s parent or parents suing on

behalf of the student, or both (but never adding up to more

than one party per student whose education is at issue).

What is less clear is whether the $4,000 fee cap should be

read to apply per student or per action. The phrase “fees of an

attorney who represents a party in an action” seems to imply a

$4,000 per student reading because it suggests that the

relevant unit of analysis is a party in an action. 2006 District

of Columbia Appropriations Act § 122(a)(1). But the

language at the end of the same clause—“in excess of $4,000

for that action”—cuts in favor of the per action interpretation

as it implies that the $4,000 limit applies to actions as a

whole. Id. Under the per student reading, the fee cap applies

to “an attorney who represents a party in an action” and the

phrase “$4,000 for that action” merely clarifies the scope of

representation of a party that the fee cap applies to. Id. In

other words, an attorney may receive $4,000 for each separate

action in which they represent a party or $4,000 for each

separate party they represent in a single action. Under the per

action reading, the fee cap limits fees paid to an attorney (or

attorneys) “for that action” and the phrase “an attorney who

represents a party in an action” merely specifies the type of

7

attorney (i.e., an attorney who either brings or defends an

IDEA suit) whose fees are subject to the cap. Id. On that

reading, an attorney may not receive more than $4,000 for a

single action regardless of the number of parties represented

in that action.

Both readings of the statute are plausible. The statutory

language provides clear guidance in cases where each action

concerns one student. But I see no “evident intent” of

Congress with respect to class actions. If Congress had

thought about class actions even in the slightest, it would have

provided more explicit instruction on how to deal with them.

All that is clear is that Congress intended that the fee cap be

no more than $4,000 per student and no less than $4,000 per

action. But this leaves two plausible interpretations that entail

wildly different results in the class action context.

Just as the explicit text is ambiguous, it is difficult to

identify a policy implicit in the statute that offers clear

guidance for our case. The fee cap statute balances

Congressional concern with the diversion of funds from

District schools to plaintiffs’ attorneys with the desire to

provide some source of funding for legal representation of

poor children with worthy claims. For cases involving

individual students, Congress evidently decided that a $4,000

fee cap would represent a reasonable balance of these

considerations. Class actions offer the possibility of

economies of scale in litigation by resolving the claims of

many similarly situated parties in one action rather than

forcing each individual claim to be brought as a separate

action. The time of plaintiffs’ attorneys is one of the many

resources on which a class action may economize. The cost

of legal representation per student in a class action could be

expected to be lower, perhaps much lower, than those in

individual actions. So it is doubtful that someone who

believed that a $4,000 per student fee cap struck a reasonable

8

balance between protecting the District’s fisc and securing

legal representation for poor children would also believe that

the same $4,000 per student was the best fee cap in class

actions. And there is surely some anomaly in construing a cap

that to a degree serves to constrain overlawyering as having

no such beneficent effect in a class action. But it seems even

less likely that the drafters could have thought that a $4,000

per action fee cap for a case involving thousands of students

would provide for adequate legal representation. Instead, the

policy logic of the statute suggests that the fee cap for large

class actions should be something less than $4,000 per student

but more than $4,000 per action. Unfortunately, this is not

one of the two plausible interpretations of the statutory

language. The text of the statute forces us to choose between

two extreme outcomes.

On balance, I believe that the $4,000 per student

interpretation is a somewhat superior reading. As Chief Judge

Sentelle’s opinion observes, the $4,000 per action rule would

provide a perverse incentive to break class actions into

multiple individual actions so as to receive higher attorneys

fees. Furthermore, while Congress evidently decided that

$4,000 was ample compensation for an attorney representing

an individual student, it is difficult to see how the same

compensation could be reasonable for a much larger, longer

and more complex class action. Whereas a $4,000 cap on fees

in a suit brought by an individual student seems unlikely to

force impecunious parents to rely on pro bono legal services, a

$4,000 fee cap on a class action would likely have just this

effect. By contrast, since Congress was willing to permit the

District to spend the aggregate of $4,000 per student on fees

in individual cases, it plainly had no clear opposition to the

aggregate cost that a per student rule imposes on the District

in this case. Finally, the fee shifting statute itself provides that

fees may be awarded “to a prevailing party who is the parent

of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B).

9

Given that fee awards are made to parents of a student, it

seems fitting to read the cap on these fees as applying per

student rather than per action.