Calloway v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 1999 Decided June 30, 2000

No. 99-5215

Brandon Calloway, et al.,

Appellants/Cross-Appellees

v.

District of Columbia, et al.,

Appellees/Cross-Appellants

Consolidated with

99-5216

Appeals from the United States District Court

for the District of Columbia

(No. 99cv00037)

Steven L. Leifer argued the cause for appellants/cross-

appellees. With him on the briefs were Lois McKenna

Henry, Joshua B. Frank, Paul Levy, Beth Goodman, Ma-

thew Bogin, Margaret Kohn,and Paul Dalton.

Edward E. Schwab, Assistant Corporation Counsel, Office

of the Corporation Counsel, argued the cause for appel-

lees/cross-appellants District of Columbia, et al. With him on

the brief were Robert R. Rigsby, Interim Corporation Coun-

sel, and Charles L. Reischel, Deputy Corporation Counsel.

Donna M. Murasky, Assistant Corporation Counsel, entered

an appearance.

Alfred Mollin, Attorney, U.S. Department of Justice, ar-

gued the cause for appellee/cross-appellant United States of

America. With him on the brief were David W. Ogden, Acting

Assistant Attorney General, Michael Jay Singer, Attorney,

and Wilma A. Lewis, U.S. Attorney.

Before: Ginsburg, Tatel and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Separate opinion dissenting in part filed by Circuit Judge

Ginsburg.

Tatel, Circuit Judge: A rider to the District of Columbia

Appropriations Act imposes limits on fees the District may

pay under the Individuals with Disabilities Education Act,

known as IDEA, to attorneys who represent prevailing par-

ties in actions against the D.C. Public Schools. In this suit by

disabled students and their parents, the district court reject-

ed challenges to the fee cap, finding it neither preempted by

IDEA nor contrary to the Due Process Clause of the Fifth

Amendment. The district court also held that the rider

restricts only the District's authority to pay attorneys' fees,

not court authority to award fees pursuant to IDEA. Find-

ing no error, we affirm in all respects.

I

The Individuals with Disabilities Education Act 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 indepen-

dent living." 20 U.S.C. s 1400(d)(1)(A). As a condition of

receiving funds under the Act, IDEA requires school districts

to adopt procedures to ensure appropriate educational place-

ment of disabled students. See 20 U.S.C. s 1413. In addi-

tion, school districts must develop comprehensive plans for

meeting the special educational needs of disabled students.

See 20 U.S.C. s 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 perfor-

mance, ... 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. s 1414(d)(1)(A).

IDEA guarantees parents of disabled children an opportu-

nity to participate in the identification, evaluation, and place-

ment process. See 20 U.S.C. ss 1414(f), 1415(b)(1). Parents

who object to their child's "identification, evaluation, or edu-

cational placement" are entitled to an "impartial due process

hearing," 20 U.S.C. ss 1415(b)(6), (f)(1), at which they have a

"right to be accompanied and advised by counsel." 20 U.S.C.

s 1415(h)(1). Parents "aggrieved by" a hearing officer's find-

ings and decision may bring a civil action in either state or

federal court without regard to the amount in controversy.

20 U.S.C. s 1415(i)(2).

Section 1415(i)(3)(B) of 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." Prevailing parents may also recover fees incurred

during administrative proceedings. See Moore v. District of

Columbia, 907 F.2d 165 (D.C. Cir. 1990) (en banc). The

amount of fees awarded "shall be 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.

s 1415(i)(3)(C).

The District of Columbia Public Schools (DCPS) has failed

to meet its obligations under IDEA, a fact no one disputes.

In its brief, the United States describes DCPS's situation this

way:

By 1998, the District of Columbia School System's ...

failure to fulfill its obligations under IDEA reached crisis

proportions. The District had virtually ceased to con-

duct timely hearings requested by parents under IDEA

and to issue final decisions within the required timelines.

Other of its obligations under IDEA were also not being

met to a significant extent.

See also Blackman v. District of Columbia, 185 F.R.D. 4, 5

(D.D.C. 1999) (finding that DCPS's noncompliance with

IDEA has resulted in "significant delays both in the place-

ment of children in appropriate educational settings and in

the provision of crucial medical services, delays that have the

potential to permanently harm the physical and emotional

health of many young children."). At a June 1997 public

hearing, DCPS identified several factors responsible for its

noncompliance, including "inadequate management[,]....

poor information management systems, lack of staff training,

inappropriate staff allocation and lack of appropriate pro-

grams." Notice of Written Findings and Decision and Com-

pliance Agreement, 63 Fed. Reg. 41370, 41373. A year later,

the Secretary of Education stated that, after "working with

DCPS over a number of years to address its serious and on-

going failure to comply with the requirements of [IDEA]," he

determined that immediate compliance was "not feasible."

Id. at 41371. The Secretary and DCPS entered into a

Compliance Agreement mandating that DCPS "be in full

compliance with the requirements of [IDEA in] no later than

three years." Id. at 41374.

DCPS's failure to meet the special education needs of its

disabled students has resulted in an exceedingly large num-

ber of parental complaints. The record shows that in 1995,

although DCPS served less than two-thousandths of one

percent of the nation's disabled students, over forty-five

percent of requests for due process hearings nationwide were

made in D.C.

Because IDEA authorizes the award of attorneys' fees,

parental complaints have been costly for DCPS. In fiscal

year 1998, for example, the school district paid over $10

million to attorneys. That same year, the Washington Post

reported that legal representation of special education stu-

dents, once "an obscure niche," had developed into a "boom-

ing, lucrative industry." Doug Struck and Valerie Strauss,

Special Ed Law Is Big Business; Students' Attorneys Collec-

tively Receiving Millions in Fees, The Wash. Post, July 20,

1998, at B7. Describing special education cases as "easy [to]

win," the Post stated that "when the city's school system is

crying for money to try to build an adequate special education

system--and thereby begin to lessen the flood of legal chal-

lenges--these attorney fees rankle school officials who say

the money should be spent on children." Id.

Responding to the concerns expressed in the Post article,

the House Committee on Appropriations, while considering

the District's fiscal year 1999 appropriations request, acted to

stem "the growth in legal expenses ... and the usurping of

resources from education to pay attorney fees." H.R. Rep.

105-670, at 50 (1998). The Committee adopted an appropria-

tions rider that, in order to allow DCPS to "focus more

clearly on teaching and learning rather than on litigation and

expensive legal fees," limited the District's fee payments

under IDEA. Id. Eventually becoming section 130 of the

1999 D.C. Appropriations Act, the rider imposed caps on both

the hourly rate and total amount of compensation the District

could pay lawyers of parents who prevail in IDEA actions and

proceedings. See Section 130 of the Omnibus Consolidated

and Emergency Supplemental Appropriations Act of 1999,

Pub. L. 105-277, 112 Stat. 2681 (October 21, 1998) (hereinaf-

ter, section 130). Specifically, section 130 provided that 1999

funds could not be used to pay attorneys' fees in excess of the

amount at which the D.C. Code fixes compensation of attor-

neys who represent indigent defendants charged with misde-

meanors: $50 per hour and $1,300 overall. See section 130;

D.C. Code Ann. s 11-2604(a); D.C. Code s 11-2604(b)(1).

Section 130 allowed the maximum total payment, but not the

maximum hourly rate, to be waived for "extended or complex

representation." See section 130; D.C. Code Ann.

s 11-2604(c). In its entirety, section 130 reads as follows:

None of the funds contained in this Act may be made

available to pay the fees of an attorney who represents a

party who prevails in an action, including an administra-

tive proceeding, brought against the District of Columbia

Public Schools under the Individuals with Disabilities

Education Act (20 U.S.C. s 1400 et seq.) if--

(1) the hourly rate of compensation of the attorney

exceeds [$50]; or

(2) The maximum amount of compensation of the at-

torney exceeds [$1,300], 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 Colum-

bia Code.

Congress included a similar rider in the District's fiscal

year 2000 appropriations bill. Fearful of the rider's impact

on disabled children, President Clinton vetoed the bill. "In

the long run," the President's veto message explained, "this

provision would likely limit the access of the District's poor

families to quality legal representation, thus impairing their

due process protections provided by ... IDEA." See District

of Columbia Appropriations Act, 2000--Veto Message from

The President of The United States (H. Doc. No. 106-135),

145 Cong. Rec. H8941, H8942 (Sept. 28, 1999). Persisting,

Congress included the fee cap (with minor revisions not

relevant to this litigation) in a reenacted FY 2000 appropria-

tions bill. This time the President signed. See Section 129,

District of Columbia Appropriations, 2000, Pub. L. No. 106-

113, 113 Stat. 1501, 1517 (November 29, 1999).

Before the enactment of the FY 2000 appropriations bill,

seven disabled children and their parents filed suit against

the District in the United States District Court for the

District of Columbia challenging section 130 of the FY 1999

Appropriations Act. The families allege that the fee cap

prevents them from retaining qualified legal counsel on a

contingency basis. One plaintiff unable to find counsel de-

clared: "I spoke with ... one of the attorneys who specializes

in education law ... who informed me that, due to the

passage of Section 130 of the D.C. Appropriations Act, her

firm was no longer able to accept special education cases on a

contingency basis. She indicated that she was not aware of

any other private attorney in the District of Columbia who

would...."

The families mounted two challenges to section 130. Rely-

ing on the Supremacy Clause of Article VI of the Constitu-

tion, they argued that section 130--which they referred to as

a "local law"--is preempted by IDEA. They also argued that

by singling out disabled children residing in the District of

Columbia for unfavorable treatment, section 130 violates the

Due Process Clause of the Fifth Amendment. Finally, the

families sought a declaratory ruling that section 130 does not

affect a district court's authority to award reasonable attor-

neys' fees under IDEA. Pursuant to 28 U.S.C. s 2403(a), the

United States intervened to defend section 130's constitution-

ality. The District of Columbia, which joined the United

States' defense of the statute, argued that section 130 amend-

ed IDEA, thus barring courts in D.C. from awarding fees in

excess of the amount the District is authorized to pay.

Rejecting plaintiffs' challenges to section 130, the district

court granted summary judgment in favor of the District.

The court also rejected the District's interpretation of section

130, ruling that the rider had "done nothing to affect the

district court's ability under [IDEA] to base a determination

of reasonable attorneys' fees [on] rates prevailing in the

community."

The families now appeal, and the District of Columbia

cross-appeals. Although the United States defends section

130's constitutionality, it takes no position on the proper

interpretation of the section. Our review of all issues is de

novo. See Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994)

("Our review of the grant of summary judgment is de novo,

applying the same standards as the district court."); United

States v. Williams-Davis, 90 F.3d 490, 512 (D.C. Cir. 1996)

(applying de novo review to a question of statutory construc-

tion).

II.

Beginning with the families' appeal, we can easily dispose

of their Supremacy Clause argument. Because IDEA is

national legislation, the families argue, it preempts under the

Supremacy Clause any state or local legislation that impedes

its accomplishment, such as section 130. In support, the

families cite Brown v. United States, 742 F.2d 1498, 1502

(D.C. Cir. 1984) (en banc), where we stated that "Congress

frequently enacts legislation applicable only to the District

and.... [a]bsent evidence of contrary congressional intent,

such enactments should be treated as local law, interacting

with federal law as would the laws of the several states."

Even assuming the Supremacy Clause applies to Congress

when it legislates for the District under Article I, section 8 of

the Constitution--a proposition for which we have found no

persuasive support--the families' argument suffers from a

fatal weakness: it requires us to believe that Congress enact-

ed section 130 for the purpose of having it instantaneously

preempted by a statute enacted over a decade earlier. See

Cipollone v. Liggett, 505 U.S. 504, 516 (1992) ("[T]he purpose

of Congress is the ultimate touchstone of pre-emption analy-

sis.") (internal quotation marks omitted).

We turn to the families' equal protection challenge. They

argue that section 130, by limiting their ability to obtain

counsel and leaving them "powerless to enforce their IDEA

rights," treats them differently from non-D.C. families with

disabled children, in violation of the equal protection guaran-

tee of the Fifth Amendment's Due Process Clause. See

Bolling v. Sharpe, 347 U.S. 497 (1954) (applying equal protec-

tion principles to the District of Columbia through the Due

Process Clause of the Fifth Amendment). To assess this

claim, we must first determine the appropriate level of scruti-

ny. Most laws will survive equal protection challenge if they

bear a rational relationship to a legitimate governmental

purpose. See Vacco v. Quill, 521 U.S. 793, 799 (1997). More

searching scrutiny is reserved for laws that either burden a

suspect class or impinge upon a fundamental interest. See id.

The families urge us to apply heightened scrutiny for two

reasons: residents of D.C. are themselves a suspect class, and

section 130 burdens the educational opportunities of a disad-

vantaged group, i.e., children with disabilities.

This court has twice considered claims that D.C. residents

comprise a suspect class. The first case, United States v.

Thompson, 452 F.2d 1333 (D.C. Cir. 1971), concerned a

district court's application of D.C. bail provisions to deny

appellant bail pending appeal following his conviction for

violating federal narcotics laws. Appellant argued that the

D.C. bail provisions applied only to local offenses (ones con-

tained in the D.C. Code) and that because he had been

convicted of a national offense (one contained in the U.S.

Code), his bail application should have been judged by the

more lenient criteria applicable to national offenses in other

jurisdictions. See id. at 1337-38. This court agreed, stating

that application of D.C. bail provisions to U.S. Code offenses

would violate the Due Process Clause by treating U.S. code

violations in D.C. differently from such violations in all other

jurisdictions. See id. at 1340-41. The opinion contains lan-

guage that supports the families' position:

Minorities can usually protect themselves by playing

their role in the political process and forming coalitions

with other groups to secure a majority. But it is sense-

less to remit District residents to the political process,

since for them there is no political process.... In this

context, ... the normal arguments for judicial restraint

become no more than hollow shibboleths grotesquely

detached from the logic which once supported them....

Therefore, discriminatory classifications affecting District

residents must be subjected to the strictest possible

review.

Id. at 1341 (internal citation omitted).

This court next considered the suspect class status of D.C.

residents in United States v. Cohen, 733 F.2d 128 (D.C. Cir.

1984) (en banc). Sitting en banc, the court departed from the

reasoning of Thompson and applied rational basis review to

uphold a statute requiring civil commitment for D.C. defen-

dants found not guilty by reason of insanity. See id. Ex-

plaining why the statute did not burden a suspect class,

Cohen first noted that the affected group consisted not just of

District residents, but "principally of those who commit

crimes within the District, a class within which ... many

residents of other states ... are likely to be included...."

Id. at 135. Then, in language relied on by the government in

this case, Cohen said the following:

[E]ven if one accepts the thesis that the class in question

is residents of the District of Columbia, the mere lack of

the ballot does not establish political powerlessness, or, if

it does, political powerlessness alone is not enough for

"suspect class" status. Minors, for example, are not a

suspect class. It is, in any event, fanciful to consider as

"politically powerless" a city whose residents include a

high proportion of the officers of all three branches of

the federal government, and their staffs.

Id. (internal citation omitted).

According to the families, this language is dicta because

the court interpreted the civil commitment statute as not

classifying on the basis of residence. The families urge us to

follow Thompson and apply heightened scrutiny to section

130. We are not so free. Whatever force Thompson's rea-

soning about the status of D.C. residents once carried, it has

not survived Cohen. To begin with, by pointing out that the

civil commitment statute at issue in Cohen applies to anyone

tried in the District, not just to District residents, Cohen

implicitly undermined Thompson, for notwithstanding

Thompson's apparent holding that D.C. residents are a sus-

pect class, the D.C. bail provisions also apply to persons tried

within the District, regardless of residency. Moreover, Co-

hen expressly repudiates Thompson's equal protection rea-

soning. "We ... disapprove ... the rationale expressed in

[Thompson] that distinctive legislative treatment of the Dis-

trict is 'particularly suspect' and thus requires more than a

rational basis to support it." Id. at 136 n.12. Although

Cohen's discussion of the suspect class status of D.C. resi-

dents was not critical to its holding--the court had already

recognized that persons tried within the District need not

reside there--its analysis evolved from considerable debate

within the court. A portion of the court's opinion responds to

a concurring opinion's effort to devise a framework by which

differential treatment of D.C. residents would, in certain

circumstances, raise special equal protection concerns. See

id. at 132 n.10, 136 n.12, responding to id. at 141-50 (Mikva,

J., concurring). For all of these reasons, a panel of this court

may not now depart from the en banc court's conclusion that

D.C. residents do not comprise a suspect class for equal

protection purposes.

In support of their second argument for heightened scruti-

ny--that section 130 burdens the educational opportunities of

a disadvantaged group--the families rely on Plyler v. Doe,

457 U.S. 202, 223-24 (1982), which applied heightened scruti-

ny to invalidate a Texas statute denying public education to

children not legally admitted to the United States. In subse-

quent cases, however, the Supreme Court limited Plyler to its

facts. In Kadrmas v. Dickinson Public Schools, the Court

rejected a claim that charging some students a fee for trans-

portation to school triggered heightened scrutiny under Plyl-

er, saying "we have not extended [Plyler's] holding beyond

the unique circumstances that provoked its unique confluence

of theories and rationales." 487 U.S. 450, 459 (1988) (internal

citations and quotation marks omitted). Those "unique cir-

cumstances" are not present here. In Plyler, the doors to

the public schools were completely closed to children of

undocumented aliens. See Plyler, 457 U.S. at 205. Although

section 130 may make it less likely that disabled children will

receive an education that conforms to IDEA, the doors to the

schoolhouse remain open, as they did in Kadrmas. And the

Supreme Court has made clear that a statute burdening the

educational opportunities of disadvantaged children does not

by that fact alone trigger heightened scrutiny. See San

Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1

(1973) (applying rational basis review to uphold Texas's use of

property taxes to finance local school districts even though

that funding system resulted in fewer educational opportuni-

ties for poor students than for students in districts with

richer tax bases).

We thus review the families' equal protection challenge

under the rational basis standard. We ask whether "there is a

rational relationship between the disparity of treatment and

some legitimate governmental purpose." Heller v. Doe, 509

U.S. 312, 320 (1993). "On rational-basis review, a ... statute

... comes to us bearing a strong presumption of validity, and

those attacking the rationality of the legislative classification

have the burden to negative every conceivable basis which

might support it." FCC v. Beach Communications, Inc., 508

U.S. 307, 314 (1993) (internal citations and quotation marks

omitted).

Pointing to The Washington Post article, the District's

brief refers to "evidence of abuse by attorneys in the legal

services process," presumably implying--though never direct-

ly so stating--that section 130 was designed to curb excessive

or unjustified fees. The families and their lawyers resist any

such charges, and at oral argument counsel for the District

conceded that the city has no evidence of attorney miscon-

duct. The District, moreover, "adopts" the United States'

brief, which argues not that section 130 stemmed from evi-

dence of attorney abuse, but that in view of DCPS's manifest

inability to meet its obligations under IDEA, Congress could

rationally have concluded that "it was more important for the

District to spend its funds on remedying these systemic

defects and providing primary services rather than upon

litigation fees." According to the government, then, section

130's legitimate governmental purpose is to assist disabled

children in D.C. by allocating additional funds to primary

special education services. The statute is rationally related to

that objective, we are left to infer, because limiting payments

to attorneys will leave more funds available for direct ser-

vices.

The families raise several reasons to doubt that section 130

will yield the benefits claimed by the government. As the

families point out, nothing requires DCPS to reallocate sec-

tion 130 savings to special education services, nor does the

record indicate that such funds have been so reallocated.

Rather, the families claim, the District's annual budget has

simply been reduced by the amount of fees saved. Moreover,

section 130 limits attorneys' fees even when paid from sources

other than DCPS's budget; while the statute caps fees for

both administrative proceedings and court litigation, pay-

ments for the latter come from the Corporation Counsel's

Settlement and Judgment fund. Finally, the families ask,

even if section 130 actually made more funds available for

special education, would any improvements that might flow

from such expenditures outweigh section 130's harmful ef-

fects?

Whatever the doubts about section 130, "rational-basis

review in equal protection analysis is not a license for courts

to judge the wisdom, fairness, or logic of legislative choices."

Heller, 509 U.S. at 319 (internal quotation marks omitted).

"The Constitution presumes that, absent some reason to infer

antipathy, even improvident decisions will eventually be recti-

fied by the democratic process and that judicial intervention

is generally unwarranted no matter how unwisely we may

think a political branch has acted." Beach Communications,

508 U.S. at 314. Moreover, "courts are compelled under

rational-basis review to accept a legislature's generalizations

even when there is an imperfect fit between means and ends."

Heller, 509 U.S. at 321.

Applying these highly deferential principles, we cannot

conclude that Congress acted irrationally. Assisting disabled

children is a legitimate governmental purpose. It is at least

conceivable, moreover, that capping fees will produce addi-

tional resources for direct educational services, and that,

despite limiting parents' ability to use litigation as a means of

enforcing IDEA, section 130 will yield a net benefit for

disabled children. Notwithstanding the doubts of the families

and the President, supra at 12-13, 6, that possibility suffices

for the statute to survive rational basis review.

III.

In its cross-appeal, the District argues that section 130 not

only prohibits the District from paying attorneys' fees greater

than the prescribed amounts, but also prohibits courts from

awarding such fees. In resolving this claim, we are guided by

the well-settled principle that "[w]hile appropriation acts are

'Acts of Congress' which can substantively change existing

law, there is a very strong presumption that they do not."

Building & Construction Trades Dept., AFL-CIO v. Martin,

961 F.2d 269, 273 (D.C. Cir. 1992). As we have elsewhere

observed, "the established rule [is] that, when appropriations

measures arguably conflict with the underlying authorizing

legislation, their effect must be construed narrowly. Such

measures have the limited and specific purpose of providing

funds for authorized programs." Donovan v. Carolina Stal-

ite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984) (internal citation

and quotation marks omitted). Applying this principle, we

agree with the district court that section 130 limits only

District authority to pay fees from FY 1999 appropriations,

not court authority to award fees under IDEA.

We begin, as we must, with section 130's plain language:

"None of the funds contained in this Act may be made

available to pay the fees of an attorney who represents a

party who prevails in an action ... brought against [DCPS]

under [IDEA]" in excess of $50 per hour or $1,300 total.

Note that nothing in section 130 restricts court authority to

award fees under section 1415(i)(3)(B) of IDEA; the rider

concerns only District authority to pay fees from FY 1999

appropriations. As the district court observed, section 130

and IDEA regulate different government authorities: "The

IDEA attorney's fees provision provides the courts with

discretion ... to award reasonable attorneys' fees. By con-

trast, section 130 governs the District of Columbia's appropri-

ations and right to pay those fees."

To be sure, restricting federal court authority to award fees

might have been one way for Congress to help DCPS address

its special education problems. It is not our function, howev-

er, to determine whether such a limitation would "accor[d]

with common sense and the public weal. Our Constitution

vests such responsibilities in the political branches." Tennes-

see Valley Authority v. Hill, 437 U.S. 153, 195 (1978) (internal

quotation marks omitted); but see Slip Op. at 6 (Ginsburg, J.,

dissenting) (arguing that "common sense tells us" that section

130 is "a limitation upon the district court's authority to

award attorneys' fees").

In view of the "very strong presumption" that appropria-

tion acts do not amend substantive law, we face a straightfor-

ward question of statutory construction: has Congress unam-

biguously expressed an intent to limit court authority to

award fees under IDEA? When Congress wants to use an

appropriations act to limit court authority, it knows precisely

how to do so. For example, section 311 of the 2000 Appropri-

ations Act says, "section 5 of the Y2K Act ... is amended"

to state that "punitive damages in a Y2K action may not be

awarded against an institution of higher education." Section

311, Consolidated Appropriations Act, 2000, Pub. L. 106-113,

113 Stat. 1501, 1537 (Nov. 29, 1999). Section 130 contains no

similar limiting language.

The District argues that even if section 130 does not

expressly amend IDEA, the appropriations rider nevertheless

represents an implied limit on court authority to award fees.

Otherwise, the District claims, section 130 might increase the

District's eventual fee liability by encouraging litigation to

recover fees in excess of section 130's caps. Repeals by

implication, however, are disfavored--a policy that "applies

with even greater force when the claimed repeal rests solely

on an Appropriations Act." TVA, 437 U.S. at 190. "[I]n the

absence of some affirmative showing of an intention to repeal,

the only permissible justification for a repeal by implication is

when the earlier and later statutes are irreconcilable." Id.

(internal quotation marks omitted). No irreconcilable conflict

exists here since, as we have pointed out, section 130 and

IDEA are directed at different governmental entities.

Like the district court, we recognize the potential incongru-

ity of courts' awarding fees that section 130 prohibits the

District from paying during the same fiscal year. As the

Supreme Court has made clear, however, reconciling inhar-

monious statutory directives is Congress' responsibility, not

courts'. In TVA v. Hill, the Supreme Court faced a situation

similar to this case. Acting pursuant to the Endangered

Species Act, 16 U.S.C. s 1531 et seq., the Sixth Circuit halted

construction of a nearly completed TVA dam in order to

preserve the critical habitat of the snail darter. See TVA, 437

U.S. at 168-70. In the Supreme Court, TVA argued that

Congress, by appropriating funds for completion of the dam

after learning that the snail darter had been placed on the

endangered species list, had implicitly amended the Endan-

gered Species Act to allow construction to continue. See id.

at 189-90. Disagreeing, the Court explained that "[w]hile it

is emphatically the province and duty of the judicial depart-

ment to say what the law is, it is equally--and emphatically--

the exclusive province of the Congress not only to formulate

legislative policies and mandate programs and projects, but

also to establish their relative priority for the Nation." Id. at

194 (internal citation and quotation marks omitted). Just as

the Supreme Court left it to Congress to resolve the incon-

gruity of appropriating funds for a dam that another statute

prohibited, we leave to Congress the resolution of the incon-

gruity in this case.

The cases relied on by the dissent do not require a differ-

ent result. See Slip Op. at 2-11 (Ginsburg, J., dissenting).

In American Federation of Government Employees, AFL-

CIO v. Campbell, 659 F.2d 157 (D.C. Cir. 1980), we held that

an appropriations rider containing language similar to section

130 "modified pro tanto" a substantive statute. 659 F.2d at

161. The rider provided that "[n]o ... funds appropriated

for the fiscal year [1979] may be used to pay the salary or pay

of any individual ... in an amount which exceeds [a five and

one-half percent raise] as a result of any adjustments ...

under [the 'prevailing rate' act]." Pub. L. No. 95-429,

s 614(a), 92 Stat. 1001, 1018 (1978). Had the prevailing rate

statute been given effect, government employees would have

received raises in 1979 of between seven and twelve percent.

Because of the appropriations rider, however, pay increases

that year were limited to five and a half percent. Govern-

ment employees "sued to enforce their alleged rights to wage

increases based solely on the ... prevailing rate statute."

Campbell, 659 F.2d at 159. We rejected their claim, conclud-

ing that the appropriations act, by including a new ceiling on

wage increases, and "by express reference to the earlier

statute, effectively modified [it]." Id. at 161. We thus gave

the appropriations act the effect that its express terms re-

quired--limiting pay increases for FY 1979.

Observing that section 130 expressly refers to IDEA and

includes a fee schedule, our dissenting colleague relies on

Campbell for the conclusion that Congress intended to modify

IDEA. See Slip Op. at 4-5 (Ginsburg, J., dissenting). We

think Campbell and this case are different. As in Campbell,

we have given the rider the effect that its plain text re-

quires--limiting the District's payment of fees for FY 1999--

but this case presents an additional question, one not raised

in Campbell: in the absence of clear legislative intent, evi-

denced either through statutory language or legislative histo-

ry, to amend substantive law, does an appropriations act

funding one governmental entity restrict the substantive au-

thority of a separate entity, indeed a separate branch of

government? Given the "very strong presumption" that ap-

propriation acts do not amend substantive statutes, neither

section 130's reference to IDEA nor its fee schedule warrants

an inference that an appropriations rider directed at the

District of Columbia restricts the authority of the federal

courts. Indeed, Congress could hardly have identified the

class of payments affected by section 130 without mentioning

IDEA. Nor could Congress have limited the District's FY

1999 payments without specifying the amounts of those limits.

If, as the dissent claims, section 130's ceiling on payments

and reference to IDEA sufficed to modify IDEA, the existing

presumption would be reversed and replaced with a presump-

tion that appropriation riders do amend substantive law.

Under the dissent's theory, Congress could limit the District's

fee payments from particular appropriations without also

restricting court authority to award fees only by adding an

express statement that substantive law remains intact. That

is not the law of this circuit.

National Treasury Employees Union v. Devine, 733 F.2d

114 (D.C. Cir. 1984), is equally distinguishable. See Slip Op.

at 10 (Ginsburg, J., dissenting). That case concerned Office

of Personnel Management regulations establishing new per-

sonnel policies for federal employees. Dissatisfied with the

new policies, Congress passed an appropriations rider provid-

ing that "[n]one of the funds appropriated under this Act

[funding OPM] shall be obligated or expended to implement,

promulgate, administer, or enforce [the OPM regulations]."

Devine, 733 F.2d at 116. The Director of OPM interpreted

the rider to mean that "each federal agency would simply

have to administer and enforce the regulations without OPM's

assistance...." Id. at 116. We rejected this interpretation

of the rider, resting our decision on two factors. First,

because "the express terms of the regulations require[d]

OPM to play a critical and continuing role in their implemen-

tation, administration, and enforcement," id. at 119, we doubt-

ed whether the regulations could "sensibly ... be effectuated

without OPM's continued participation." Id. at 120. Indeed,

we viewed the Director's interpretation of the rider as "abdi-

cating [OPM's] central responsibility for executing, adminis-

tering, and enforcing civil service rules and regulations." Id.

at 119 (internal quotation marks omitted). Second, after

examining the rider's legislative history, we found "clear

indications of Congress' intent" to foreclose significant

changes in personnel management policies. Id. at 120.

Neither factor is present in this case. To begin with,

because the District plays no role in a court's awarding of

fees, section 130 does not prevent the implementation of

IDEA's fee provision in the same manner as the rider in

National Treasury Employees Union v. Devine impeded

implementation of OPM's regulations. Nor, for the same

reason, does section 130 produce any "abdication" of District

responsibility. Moreover, section 130's legislative history

demonstrates no clear congressional intent to amend IDEA.

Although the House Appropriations Committee wrote of an

earlier version of section 130 that it would limit "the award of

attorney fees," H.R. Rep. No. 105-670, at 50 (1998), see also

Slip Op. at 5 (Ginsburg, J., dissenting), the Conference Re-

port accompanying the final bill speaks only of "plac[ing] a

limit on the payment of fees to attorneys." H.R. Conf. Rep.

No. 105-825, at 1116 (1998). As the Supreme Court has

observed, "[l]egislative materials may be without probative

value, or contradictory, or ambiguous, ... and in such cases

will not be permitted to control the customary meaning of

words...." United States v. Dickerson, 310 U.S. 554, 562

(1940).

To sum up, because we must narrowly construe section 130,

see Donovan, 734 F.2d at 1558, we interpret it to accomplish

neither more nor less than its plain text states. The rider's

express terms restrict District payment of IDEA fees from

FY 1999 appropriations. We give section 130 precisely that

effect. If Congress wishes to restrict court authority to

award fees against the District, it may do so either through

the D.C. appropriations bill or through the enactment of

substantive legislation amending IDEA. But until Congress

demonstrates clear intent to modify substantive law, either

through statutory language or persuasive legislative history,

we presume in accordance with circuit precedent that it did

not use section 130 to limit the power of federal courts to

award fees under IDEA.

The decision of the district court is affirmed.

So ordered.

Ginsburg, Circuit Judge, dissenting in part: I concur in

Parts I and II of the opinion for the Court and in the

judgment in No. 99-5215, rejecting the families' constitutional

challenges. I dissent from Part III of the opinion and from

the judgment in No. 99-5216 because I believe that for FY

1999 the Congress modified the authority of the district court

to award attorneys' fees under s 615 of the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. s 1415.

I. Background

The Congress reenacted s 615 of the IDEA with considera-

ble revisions in 1997. See Individuals with Disabilities Edu-

cation Act Amendments for 1997, Pub. L. No. 105-17, s 101,

110 Stat. 37, 88 (1997). Section 615 includes the following

provision for attorneys' fees:

In any action or proceeding brought under this section,

the [district] court, in its discretion, may award reason-

able attorneys' fees as part of the costs to the parents of

a child with a disability who is the prevailing party.

Id. at 92, codified at 20 U.S.C. s 1415(i)(3)(B).

The Congress revisited the subject of attorneys' fees in

IDEA cases two years later when it passed the District of

Columbia Appropriations Act of 1999. See Omnibus Consoli-

dated and Emergency Supplemental Appropriations Act of

1999, Pub. L. No. 105-277, s 101(c), 112 Stat. 2681 (1998).

Section 130 of the 1999 D.C. Appropriations Act provides:

None of the funds contained in this Act may be made

available to pay the fees of an attorney who represents a

party who prevails in an action, including an administra-

tive proceeding, brought against the District of Columbia

Public Schools under the Individuals with Disabilities

Education Act (20 U.S.C. s 1400 et seq.) if

(1) the hourly rate of compensation of the attorney

exceeds the hourly rate of compensation under section

11-2604(a), District of Columbia Code [i.e., $50 per hour],

or

(2) the maximum amount of compensation of the attor-

ney exceeds the maximum amount of compensation un-

der section 11-2604(b)(1), District of Columbia Code [i.e.,

$1,300 total], except that compensation and reimburse-

ment in excess of such maximum may be approved for

extended or complex representation in accordance with

section 11-2604(c), District of Columbia Code.

Obviously, s 130 has some effect upon attorneys' fees

under the IDEA. The question before us is what effect: Is

s 130 a limitation for FY 1999 upon the court's pre-existing

authority in s 615 to award attorneys' fees in excess of $50

per hour and $1,300 per case? Or does it merely "prohibit[ ]

the District from paying during the same fiscal year" any fee

the district court might award in excess of those caps, Slip

Op. at 15, thereby leaving the District liable for such awards

after the end of that fiscal year? Today the court, citing an

interpretive presumption and then declining to address the

evidence offered by the District to overcome that presump-

tion, gives the latter answer. I would give the former: s 130

limits the authority of the district court under IDEA s 615

because in s 130 the Congress "by clear implication, if not

express statement, modified pro tanto the previous substan-

tive law." American Federation of Government Employees

v. Campbell, 659 F.2d 157, 161 (D.C. Cir. 1980).

II. Analysis

In Campbell this court held that an appropriations rider

strikingly similar in text and structure to s 130 modified pro

tanto the prior substantive statute to which it referred.

There, the plaintiffs were federal employees whose wages

were determined under the "prevailing rate statute," 5 U.S.C.

ss 5341-5349 (1976 & Supp. III 1979). That statute required

that wages be "fixed and adjusted from time to time ... in

accordance with prevailing rates," as determined by wage

surveys of the private sector to be conducted by "lead

agenc[ies]." Id. s 5343(a), (a)(3).

The lead agencies had conducted their surveys and recom-

mended wage increases of between 7% and 12% for the

plaintiffs. See Campbell, 659 F.2d at 159. Thus, the employ-

ing agencies were required by the prevailing rate statute to

order pay raises in this 7%-12% range (except insofar as they

may have found the "public interest" required less--a point

not relevant in Campbell or here). Before the employing

agencies had actually ordered any wage increase, however,

the Congress passed an appropriations rider that provided:

No ... funds appropriated for the fiscal year [1979] ...

may be used to pay the salary or pay of any individual

... in an amount which exceeds [a 5.5% raise] as a result

of any adjustments which take effect during such fiscal

year under ... (3) section 5343 of Title 5 ... if such

adjustment is granted pursuant to a wage survey....

Pub. L. No. 95-429, s 614(a), 92 Stat. 1001, 1018 (1978). The

Civil Service Commission interpreted the rider as prohibiting

the employing agencies from granting any pay increase great-

er than 5.5%, and the agencies therefore ordered raises of

only that percentage. See Campbell, 659 F.2d at 159.

The plaintiffs argued to this court that the rider did not

modify the prevailing rate statute, and therefore the employ-

ing agencies were still required by law to order pay raises in

the 7%-12% range recommended by the lead agencies. See

id. at 160. We rejected this argument and concluded that for

the fiscal year the appropriations rider modified the prevail-

ing rate statute, limiting the plaintiffs' salary increase below

the amount that would have been called for under that

statute. We reached this conclusion based exclusively upon

two elements in the text of the rider, which we accepted as

clearly and unequivocally demonstrating that the Congress

meant to and did modify the preexisting statute.

First, the appropriations rider expressly referred to the

prevailing rate statute. It was upon precisely this basis that

we distinguished Tennessee Valley Authority v. Hill, 437 U.S.

153 (1978), upon which the court relies today, as well as

United States v. Langston, 118 U.S. 389 (1886), which is to

like effect. See Campbell, 659 F.2d at 160-61 & n.9. The

importance of an express reference to the preexisting statute

is that it ensures that Members of Congress were aware that

the new legislation would affect the operation of the preexist-

ing statute. See United States v. Hansen, 772 F.2d 940, 944-

45 (D.C. Cir. 1985). The Supreme Court had previously

recognized the importance of such a reference (or lack there-

of) in TVA v. Hill itself, see 437 U.S. at 189, and two of our

sister circuits have since done so, see United States v. Joya-

Martinez, 947 F.2d 1141, 1144 (4th Cir. 1991); Republic

Airlines, Inc. v. United States Dep't of Transp., 849 F.2d

1315, 1322 (10th Cir. 1988). But compare Firebaugh Canal

Co. v. United States, 203 F.3d 568, 576 n.4 (9th Cir. 2000)

(express reference "not [ ] meaningful"), with id. at 579

(Trott, J., dissenting) (express reference crucial).

Second, in Campbell we noted that the Congress had

"specifically set a ceiling on wage increases" in the appropria-

tions rider, which differentiated the rider from a "mere

failure to appropriate funds." 659 F.2d at 161 n.10. We

distinguished New York Airways, Inc. v. United States, 369

F.2d 743 (Ct. Cl. 1966), upon this basis. Again, the Supreme

Court had already drawn the same distinction: The mere act

of appropriating funds, see TVA v. Hill, 437 U.S. at 190, or of

failing to do so, see Langston, 118 U.S. at 394, says little

about the underlying substantive obligation; but inclusion in

an appropriations act of a new framework to govern the

substantive obligation indicates that the Congress was modi-

fying the prior statutory framework, see, e.g., United States v.

Mitchell, 109 U.S. 146, 149-50 (1883). Therefore we conclud-

ed that because the "Congress specifically set a ceiling on

wage increases, and directly referred to the prevailing rate

statute as one of the substantive statutes affected by the

appropriations bill," the appropriations rider "contains words

that by clear implication, if not express statement, modified

pro tanto the previous substantive law." Campbell, 659 F.2d

at 161 & n.10.

In s 130 we see the same two textual elements that were

dispositive in Campbell: It expressly refers to "the fees of an

attorney who represents a party who prevails in an action ...

under the Individuals with Disabilities Education Act (20

U.S.C. s 1400 et seq.)," and it lays out a comprehensive new

framework for determining fees. As to the second textual

element, this case is an even stronger one than Campbell:

Where the appropriations rider in Campbell simply set a cap

on wage increases, s 130 not only sets caps on attorneys' fees

but also incorporates a detailed procedure by which a court

may, under specified conditions, waive a cap. Section 130

thus "contains words that by clear implication, if not express

statement, modif[y] pro tanto the previous substantive law."

Campbell, 659 F.2d at 161.*

This conclusion drawn directly from the text of s 130 is

also reflected in the legislative history of that provision. The

District notes that the House Appropriations Committee, in

the only report to discuss s 130 in any detail, stated that

s 130 "limit[s] the award of attorney fees in special education

cases." H.R. Rep. No. 105-670, at 50 (1998) (emphasis sup-

plied) (discussing predecessor version of s 130 identical in

relevant respects to enacted version). President Clinton

agreed, both when he signed s 130 into law, see Statement by

President William J. Clinton upon Signing H.R. 4328, 34

Weekly Comp. Pres. Docs. 2108, 2112 (Nov. 2, 1998) ("the Act

also includes language that would cap the award of plaintiffs'

attorneys' fees in [IDEA] cases"), and when he vetoed a bill

containing essentially the same rider the following year, see

District of Columbia Appropriations Act, 2000--Veto Mes-

sage, 145 Cong. Rec. H8941, H8942 (Sept. 28, 1999) ("[FY

__________

* That s 130 expressly limits only the "pay[ment]" of IDEA

attorneys' fees raises the possibility--and indeed, as the court

notes, the presumption--that the Congress meant to affect only the

payment and not the award of such fees. The Supreme Court has

long held, however, that the use of "payment" or a similar term in

an appropriations act does not end a court's inquiry into congres-

sional intent. See United States v. Dickerson, 310 U.S. 554, 561-62

(1940) ("deny[ing] that such words [prohibiting only payment during

a particular fiscal year] when used in an appropriation bill are

words of art or have a settled meaning" sufficient to end the court's

inquiry into congressional intent).

Both the Supreme Court and this court have found that appropri-

ations riders that by their express terms limit or prohibit only

payment may nonetheless alter the underlying substantive obli-

gation and not just its payment. See United States v. Will, 449

U.S. 200, 205-08, 223-24 (1980); Campbell, 659 F.2d at 159 n.6;

City of Los Angeles v. Adams, 556 F.2d 40, 46 (D.C. Cir. 1977); see

also Tayloe v. Kjaer, 171 F.2d 343, 344 (D.C. Cir. 1948).

2000 provision identical in relevant part to s 130] would cap

the award of plaintiffs' attorneys' fees in [IDEA] cases")

(emphases supplied).

Finally, the District argues that the incongruous and plain-

ly unintended results ensuing from the court's interpretation

suggest that s 130 is a limitation upon the district court's

authority to award attorneys' fees; common sense tells us the

District is right. Otherwise, one would have to believe that

the Congress intended awards of attorneys' fees above the

caps to accumulate as IOUs, payable at the end of the fiscal

year when the appropriations rider is no longer operative. Of

course, the Congress does, not infrequently, decline to appro-

priate money for an undertaking authorized under prior law.

In cases where the prior statute merely authorizes the under-

taking, however, no obligation can lawfully be incurred until

funds have been appropriated, see 31 U.S.C. 1341(a); the

effect in such a case is to postpone until a later date any steps

that actually cause the Government to incur an obligation.

This case is entirely different: Under the court's interpreta-

tion of s 130, the District will continue to incur additional

liabilities, which will continue to accumulate while its authori-

ty to pay them remains in suspense.

The court today does not point to any reason for thinking

the Congress really intended such a peculiar result. (Nor,

since they chose not to file a brief in the District's cross-

appeal, do the cross-appellee families suggest any such rea-

son; nor did the district court.) There are, to be sure, cases

in which a court has held that the Congress delayed only the

payment and not the underlying incurrence of an obligation,

see, e.g., Langston, 118 U.S. at 394; but these involve mere

failures to appropriate a sufficient sum where there is no

other indication the Congress intended that the Government

not incur new liabilities, see id., or there is specific legislative

history demonstrating the Congress understood it was not

altering the Government's underlying liability, see New York

Airways, 369 F.2d at 751. Where, on the other hand, the

Congress has done more than merely fail to appropriate a

sum sufficient to cover an accumulating obligation, the Su-

preme Court has held that "it is not to be believed that

Congress ... was simply appropriating a part of that which it

knew was due." Belknap v. United States, 150 U.S. 588, 595

(1893); see also Will, 449 U.S. at 224 ("Congress intended to

rescind [Adjustment Act] raises entirely, not simply to con-

sign them to the fiscal limbo of an account due but not

payable"); cf. National Treasury Employees Union v. De-

vine, 733 F.2d 114, 120 (D.C. Cir. 1984) (rejecting interpreta-

tion of appropriations resolution that would have resulted in

"steady accumulation of unreviewed proposals").

As the District points out in its brief, the result of the

court's interpretation of s 130 is in fact more than just

peculiar--it accomplishes the exact opposite of what the

Congress sought to achieve through s 130. Most IDEA

complaints filed with the District are resolved in an adminis-

trative proceeding before the D.C. school system, that is,

without resort to the district court. Before s 130 was enact-

ed, the District had adopted guidelines under which, as

required by the IDEA, it would award and pay reasonable

attorneys' fees in such cases upon the submission of a proper

fee application; thus in FY 1998 the District, without any

court involvement, approved and paid $10,400,000 in IDEA

attorneys' fees for administrative proceedings; during the

same year the District paid only $664,000 in fees awarded by

the court. When s 130 became effective, however, the Dis-

trict revised its guidelines, in conformity therewith, to pre-

clude any fee application that sought attorneys' fees above

the caps. In other words, the District interpreted s 130 as

limiting its authority to award as well as to pay attorneys'

fees above the caps during FY 1999--an interpretation the

court today necessarily accepts as correct in the way it tries

to distinguish Campbell, Slip Op. at 17.

Limiting awards by the District without limiting awards by

the district court would actually increase the District's fee

liability, however. A family that prevails in an administrative

proceeding but is denied by the District a "reasonable"

attorneys' fee because the amount exceeds the caps may

simply repair to the district court for an award of fees greater

than what the District can award, see Moore v. District of

Columbia, 907 F.2d 165 (D.C. Cir. 1990) (en banc); moreover,

the district court may include in its uncapped award reason-

able fees for the attorneys' fee litigation, see Moore v. District

of Columbia, 674 F. Supp. 901 (D.D.C. 1987) (awarding

$29,357 for IDEA representation and $19,117 for representa-

tion in subsequent attorneys' fee litigation before the district

court). Under the court's interpretation of s 130, therefore,

the Congress not only failed effectively to cap the fees

awarded against the District, it managed to increase the

District's fee liability--as well as the District's expenditures

for its own legal representation--by requiring and enabling

families to go to district court to obtain a higher award. I do

not think that was what the legislature meant to do or did.

See Clinton v. New York, 524 U.S. 417, 430 (1998) (rejecting

interpretation of statute that "would produce an absurd ...

result which Congress could not have intended").

The court today reaches the contrary conclusion by way of

the presumption that an appropriations act does not alter

substantive law. Slip Op. at 14, 15, 17. The Supreme Court

has made clear, however, that a presumption used to inter-

pret a statute is "just that--a presumption [which] may be

overcome" by contrary evidence that provides a "reliable

indicator of congressional intent." Block v. Community Nu-

trition Inst., 467 U.S. 340, 349 (1984). In keeping with this

teaching, both the Supreme Court and this court have found

appropriations acts to have modified preexisting substantive

law in the light of evidence from the text, see Campbell, 659

F.2d at 160-61, from legislative history, see, e.g., Will, 449

U.S. at 224, or from the structure of the act, see, e.g.,

Mitchell, 109 U.S. at 149-50; and, yes, in the light of common

sense as well, see, e.g., Belknap, 150 U.S. at 595; Devine, 733

F.2d at 120. The District has sought to overcome the pre-

sumption with evidence from all of these sources; but the

court today, scarcely even acknowledging the District's argu-

ments, relies upon "bare statement[s] of law" instead of

evaluating the evidence to determine whether "the facts ...

present a different picture of congressional intent." Camp-

bell, 659 F.2d at 160.*

__________

* For example, the court misreads the Supreme Court's decision

in TVA v. Hill as barring us from considering the District's

The greatest problem for the court is that no matter how it

analyzes s 130 it runs into Campbell. As for the undoubted

presumption against finding that an appropriations act effects

a substantive modification of law, in Campbell we concluded

unequivocally that the appropriations act repealed pro tanto

the prevailing rate statute, and the presumption was over-

come based upon only the two textual elements that are

likewise present in s 130. As for the undoubted rule that

repeal by implication is disfavored, even if we treat s 130 as

an implied repealer--and I do not believe that either this case

or Campbell involves an implied repealer as exemplified by

the argument urged upon the Court in TVA v. Hill--the

same two textual factors provide the "affirmative showing of

an intent to repeal" required under TVA v. Hill, 437 U.S. at

190.

The court today makes one attempt to distinguish Camp-

bell from this case: In Campbell the employing agency both

granted and paid any wage increase, whereas in this case the

district court awards fees while the District pays them. Slip

Op. at 14, 17. That factoid, the court claims, poses a question

in this case that was not present in Campbell: "in the absence

of clear legislative intent ... to amend substantive law, does

an appropriations act funding one governmental entity re-

strict the substantive authority of a separate entity, indeed a

separate branch of government?" Slip Op. at 17. Assuming

counterfactually, as the question does, the absence of clear

legislative intent, the answer would of course be no. In this

case, however, we have the same evidence of legislative intent

__________

extensive and uncontested evidence regarding incongruous out-

comes in order to determine what the Congress most likely meant

by s 130. Slip Op. at 15. The portion of TVA v. Hill quoted by the

court, however, Slip Op. at 14, 16, merely states that after a court

has determined what the Congress commanded in the statute, it

should not use its remedial discretion effectively to nullify that

command by withholding a remedy based upon its own "appraisal of

the wisdom or unwisdom of [the] particular course consciously

selected by the Congress." Id. at 194. This rule certainly does not

authorize, let alone require, this court to ignore the District's

arguments about what the statute means in the first place.

that we held sufficient in Campbell to show the Congress

meant to modify substantive law. The real issue lurking in

the court's rhetorical question, then, is not whether evidence

of congressional intent is required but whether such evidence

can ever show that an appropriations act funding one govern-

mental entity is meant to restrict the substantive authority of

another entity. As a pair of cases from this court demon-

strates, the answer is yes, if that is what the Congress

discernably meant the appropriations act to do.

In Devine, 733 F.2d at 114, the Office of Personnel Man-

agement had issued new personnel regulations less than a

month before the Congress enacted an appropriations rider

stating that "[n]one of the funds appropriated under this Act

[funding the OPM] shall be obligated or expended to imple-

ment, promulgate, administer, or enforce the [new OPM

regulations]." 733 F.2d at 116. Based upon the precise

wording of the rider, the OPM took the position that the rider

"does not prevent any agency other than OPM from imple-

menting, administering and enforcing the regulations within

that agency." Id. at 116-17. We rejected that argument for

two reasons, both based expressly upon the intent of the

legislature: first, the Congress did not intend personnel

regulations to be applied by other agencies without the

OPM's involvement; and second, "even assuming arguendo

that the regulations could be implemented workably without

further participation by the OPM, it is evident that Congress

intended to prevent this." Id. at 119-20.

In Donovan, 734 F.2d at 1547, the respondent, who had

been cited for a mine safety violation, argued that an appro-

priations rider prohibiting the Mine Safety and Health Ad-

ministration (MSHA) from expending appropriated funds to

"enforce any standard, rule, regulation or order under the ...

Act" precluded the Government from appealing an adverse

administrative ruling on the mine safety violation. 734 F.2d

at 1557. We rejected that argument, noting that the Office of

the Solicitor of Labor, which conducted the appeal, was not

funded by the MSHA appropriation. We did not stop at that

observation, however; we went on to inquire into what the

Congress intended to accomplish through the rider--as evi-

denced by the untoward consequences that would ensue if the

appropriations rider were interpreted to amend the pre-

existing substantive law applicable to another entity:

[The appropriations rider] was the beginning of an effort

by some members of Congress to shift [certain mining]

operations from MSHA to OSHA jurisdiction. That

effort ultimately did not succeed and we think it would be

wholly unreasonable to suppose that Congress intended a

temporary suspension to wreak the procedural havoc

with ongoing appeals that [petitioner] urges. We inter-

pret [the rider] to indicate only Congress' intent that

MSHA initiate no new enforcement litigation.

Id. at 1558. Thus, the court did not interpret the rider as

doing anything more than limiting new enforcement actions

by the MSHA because there was no indication that the

Congress had the seemingly unreasonable intent to affect

actions already in the hands of the Solicitor.

Although the results in Devine and Donovan look in differ-

ent directions, they are not in conflict. Quite the contrary,

the court in each case asked precisely the same question: Did

the Congress intend an appropriations act that expressly

places limits upon only one governmental entity to limit the

authority of another governmental entity? In Devine the

court said yes, while in Donovan the court (acting two weeks

later through two of the same judges) said no. The question

should be the same here as well, and based upon the text of

s 130 and the incongruities that will result from the contrary

interpretation, I think the clear answer is that the Congress

did intend s 130 to modify pro tanto s 615 of the IDEA.*

__________

* The court finds Devine "distinguishable" on the ground that the

legislative history was more clear in that case. Slip Op. at 17-18.

In other words, the court does not dispute that the Congress may

limit the authority of an entity not specifically named in the statute;

it seems to think, however, that the court must find a statement to

that effect in the legislative history in order for us so to conclude. I

think it more appropriate to rely primarily upon the textual ele-

ments to which Campbell directs us--all the more confidently in

III. Summary and Conclusion

The text of s 130 makes clear that the Congress modified

for FY 1999 the authority of the district court to award

attorneys' fees under s 615 of the IDEA, 20 U.S.C. s 1415.

Even if s 130 is analyzed under the rubric of an implied

repealer, the same text provides the clear and manifest

"affirmative showing of an intention to [modify]" required

under TVA v. Hill, 437 U.S. 190. I therefore dissent from

Part III of the opinion for the Court and from the judgment

in No. 99-5216.

__________

view of the absurd results brought on by the contrary interpreta-

tion--and only secondarily upon legislative history.