Goldring Ex Rel. Anderson v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2005 Decided July 26, 2005

No. 04-7116

WILLIAM GOLDRING,

PARENT AND NEXT FRIEND OF

LAWRENCE ANDERSON, A MINOR, ET AL .,

APPELLANTS

v.

DISTRICT OF COLUMBIA,

A MUNICIPAL CORPORATION AND

CLIFFORD B. JANEY, OFFICIALLY AS

SUPERINTENDENT, D.C. PUBLIC SCHOOLS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01761)

Michael J. Eig argued the cause for the appellants. Haylie M.

Iseman was on brief.

Donna M. Murasky, Assistant Attorney General, District of

Columbia argued the cause for the appellees. Robert J.

Spagnoletti, Attorney General, District of Columbia and Edward

2

E. Schwab, Deputy Attorney General, District of Columbia,

were on brief.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge ROGERS.

KAREN LECRAFT HENDERSON , Circuit Judge: After prevailing

in administrative proceedings against the District of Columbia

and District of Columbia Public Schools (collectively, the

District) under the Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. §§ 1400-1487, the appellants—five children

with disabilities and their parents—sued under the IDEA’s fee-

shifting provision, id. § 1415(i)(3)(B), to recover a portion of

their costs that the District refused to pay. The district court

granted summary judgment partially in their favor, but declined

to include in their award fees paid to expert witnesses beyond

the amounts permitted under 28 U.S.C. §§ 1821 and 1920.1 See

Goldring v. Dist. of Columbia, No. 02-CV-1761, slip op. at 1-10

(D.D.C. May 26, 2004), reprinted in Joint Appendix (J.A.) at

98-107. They now appeal, alleging that the district court erred

because, as they see it, an award of expert witness fees to a party

prevailing under the IDEA is not so limited. The question

before us thus is whether “reasonable attorneys’ fees as part of

the costs,” words that are used in section 1415, encompass

“expert fees,” words that are not. 20 U.S.C. § 1415(i)(3)(B).

We say no—and therefore affirm the district court—because

under United States Supreme Court precedent section 1415 of

the IDEA precludes the awarding of expert witness fees as part

of a prevailing party’s costs.

1

Section 1821 provides that “[a] witness shall be paid an attendance

fee of $40 per day for each day’s attendance.” 28 U.S.C. § 1821(b).

3

I.

To “ensure that all children with disabilities have available to

them a free appropriate public education . . . designed to meet

their unique needs,” 20 U.S.C. § 1400(d)(1)(A), the IDEA

conditions eligibility for federal education assistance on a

state’s implementation of “policies and procedures to ensure”

that resident children “who are in need of special education and

related services” are “identified, located, and evaluated” and

receive “[a]n individualized education program.” Id.

§ 1412(a)(3)-(4). Each child’s individualized education

program, or IEP, must be developed by a “team” including the

child’s parents, at least one “regular education teacher” and one

special education teacher, a local educational agency

representative who is knowledgeable about the school’s

“general education curriculum” and “the availability of

resources” and—“whenever appropriate”—the disabled child

himself. Id. § 1414(d)(1)(B)(i)-(iv), (vii); see Reid ex rel. Reid

v. Dist. of Columbia, 401 F.3d 516, 518-19 (D.C. Cir. 2005).

Among other things, the IEP must contain a statement of the

child’s current performance level and “the special education

and related services” the child will receive from the school. Id.

§ 1414(d)(1)(A)(i), (iii). Parents dissatisfied with “any matter

relating to” their child’s “identification, evaluation, or

educational placement” or “the provision of a free appropriate

public education” to him, id. § 1415(b)(6), may lodge their

complaints with a state educational agency and have their

complaints aired at an impartial due process hearing, see id.

§ 1415(f)(1), where they are accorded “the right to be

accompanied and advised by counsel and by individuals with

special knowledge or training with respect to the problems of

children with disabilities,” id. § 1415(h)(1). Under the IDEA’s

fee-shifting provision, the district court “in its discretion, may

award reasonable attorneys’ fees as part of the costs . . . to a

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

in such a proceeding or court action. Id. § 1415(i)(3)(B).

4

Exercising their statutory rights under the IDEA, the

appellant parents complained to the District about their

children’s educational placements. Following due process

hearings, they requested the District to reimburse their fees and

costs pursuant to the IDEA’s fee-shifting statute. With respect

to four of the children, 2 the District did not dispute that their

parents were the prevailing parties and paid a portion of their

requested fees. The parents and children sued to recover the

balance.

The district court granted partial summary judgment in their

favor. See Goldring, No. 02-CV-1761, slip op. at 10. Relevant

to this appeal, it concluded that they could not recover the

entirety of their expert fees, “but instead must be limited to no

more than what 28 U.S.C. §§ 1821 and 1920 permit.” Id. at 9.

According to the district court, because Supreme Court

precedent holds that “ ‘when a prevailing party seeks

reimbursement for fees paid to its own expert witnesses, a

federal court is bound by the limit of [section] 1821(b), absent

contract or explicit statutory authority to the contrary,’ ” the

critical question was “whether the IDEA provides such ‘explicit

statutory authority’ permitting recovery of expert witness fees.”

Id. at 8 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

U.S. 437, 439 (1987)). The IDEA did not, it concluded;

therefore, it awarded the appellants only $120.00 in expert

witness fees—not the $6,836.50 they sought. Id. at 10.

The appellants sought reconsideration but were no more

successful. See Goldring v. Dist. of Columbia, No. 02-CV-1761,

2

Because Keith Murfee’s parents’ hearing request was dismissed

after their counsel withdrew the request, see J.A. 87, the District

disputed that Keith Murfee was a prevailing party, see J.A. 96. The

district court agreed, holding that he had not prevailed because the

benefits he received were attained by virtue of a private agreement

with “no involvement by the hearing officer.” Goldring, No. 02-CV-

1761, slip op. at 5. This appeal does not challenge that holding.

5

slip op. at 1-10 (D.D.C. July 21, 2004), reprinted in J.A. at 113-

20. The district court rejected both of their arguments—that is,

that our decision in Moore v. Dist. of Columbia, 907 F.2d 165

(D.C. Cir. 1990), held that a prevailing party is entitled to an

award of expert fees under the IDEA and that the IDEA’s

legislative history demonstrates that the Congress intended a

party prevailing under the IDEA to recover expert fees. See

Goldring, No. 02-CV-1761, slip op. at 3-8.

The parents and children timely appealed on July 28, 2004.

We have jurisdiction to entertain their appeal, see 28 U.S.C.

§ 1291, and on de novo review, see, e.g., Diamond v. Atwood, 43

F.3d 1538, 1540 (D.C. Cir. 1995), we affirm the district court.

II.

The question whether the IDEA’s fee-shifting

provision—section 1415—enables a prevailing party to recover

expert fees as part of his costs is one of first impression in our

Circuit and one not free of controversy in others. To date four

of our sister circuits have treated this issue and divided evenly

into opposing camps, two holding an IDEA prevailing party

cannot recover expert fees, see T.D. v. LaGrange Sch. Dist. No.

102, 349 F.3d 469, 481-82 (7th Cir. 2003); Neosho R-V Sch.

Dist. v. Clark, 315 F.3d 1022, 1031-33 (8th Cir. 2003), two

holding he can, see Murphy v. Arlington Cent. Sch. Dist. Bd. of

Educ., 402 F.3d 332, 337-39 (2d Cir. 2005); Arons v. N.J. Bd. of

Educ., 842 F.2d 58, 62 (3d Cir. 1988). The district courts have

likewise failed to reach a consensus on the question, compare,

e.g., BD v. DeBuono, 177 F. Supp. 2d 201, 207-08 (S.D.N.Y.

2001) (allowing recovery of expert fees); Mr. J. v. Bd. of Educ.,

98 F. Supp. 2d 226, 242-43 (D. Conn. 2000) (same); Field v.

Haddonfield Bd. of Educ., 769 F. Supp. 1313, 1323 (D.N.J.

1991) (same), with Eirschele v. Craven County Bd. of Educ., 7

F. Supp. 2d 655, 659-60 (E.D.N.C.1998) (refusing recovery of

expert fees); Cynthia K. v. Bd. of Educ. of Lincoln-Way High

Sch. Dist., 1996 WL 164381, at *2 (N.D. Ill., April 1, 1996)

6

(same), including those within our Circuit, compare, e.g.,

Czarniewy v. Dist. of Columbia, No. 02-CV-1496, slip op. at 4-5

(D.D.C. Mar. 25, 2005) (allowing recovery of expert fees);

Bailey v. Dist. of Columbia, 839 F. Supp. 888, 892 (D.D.C.

1993) (same); Aranow v. Dist. of Columbia, 791 F. Supp. 318,

318 (D.D.C. 1992) (same), with George v. Dist. of Columbia,

No. 02-CV-1656, mem. at 2 (D.D.C. Mar. 8, 2004) (refusing

recovery of expert fees); Goldring, No. 02-CV-1761, slip op. at

9 (same). The correct decision does not seem to us to be

difficult to reach, for the Supreme Court has stated in fairly

unequivocal terms that language nearly identical to that used in

section 1415 is unambiguous and, more to the point, does not

allow a prevailing party to shift his expert fees. Accordingly,

today we join the Seventh and Eighth Circuits in holding that a

prevailing party under the IDEA cannot recover expert fees.

The IDEA’s fee-shifting provision provides that “[i]n any

action or proceeding brought under this section, the court, in its

discretion, may award reasonable attorneys’ fees as part of the

costs . . . to a prevailing party who is the parent of a child with

a disability.” 20 U.S.C. § 1415(i)(3)(B). That the crucial

statutory language—“reasonable attorneys’ fees as part of the

costs,” id.—fails to allow a prevailing party to shift his expert

fees flows directly from the application of two Supreme Court

decisions. One tells us that “when a prevailing party seeks

reimbursement for fees paid to its own expert witnesses a

federal court is bound by the limit of § 1821(b) absent contract

or explicit statutory authority to the contrary.” Crawford

Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439 (1987).

The other tells us that the IDEA’s fee-shifting provision

contains no such “explicit statutory authority to the contrary.”

See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991).

In Casey, the Court addressed whether an earlier version of

42 U.S.C. § 1988, which provided that “the court, in its

discretion, may allow the prevailing party . . . a reasonable

7

attorney’s fee as part of the costs,” satisfied the Crawford

Fitting Co. “explicit statutory authority” test. Id. at 87. The

Court concluded that it did not. Id. at 97. Looking to the

“record of statutory usage,” it explained that, “[w]hile some

fee-shifting provisions, like § 1988, refer only to ‘attorney’s

fees,’ . . . many others explicitly shift expert witness fees as

well as attorney’s fees.” Id. at 88 (emphasis in original). By

the Court’s count, “[a]t least 34 statutes in 10 different titles of

the United States Code explicitly shift attorney’s fees and

expert witness costs.” Id. at 89 (emphasis in original); see id.

at n.4. In view of a record of usage that demonstrated “beyond

question” that attorney’s fees and expert witness fees are

“distinct items of expense,” the Court concluded that, if it were

to hold that “the one includes the other, dozens of statutes

referring to the two separately become an inexplicable exercise

in redundancy.” Id. at 92. Not surprisingly, the Court declined

to so hold. Accordingly, because section 1415 and the version

of section 1988 construed in Casey contain materially identical

language and Casey held that section 1988’s language does not

enable a prevailing party to shift his expert fees, we cannot but

conclude that section 1415 does likewise. That is the end of the

matter for us.

But it is not the end for the appellants. Finding the statute’s

text unhelpful, they seek refuge in its history. Legislative

history is a traditional tool of statutory construction to divine

congressional intent, they argue, and, when considered here, it

reveals an intent to allow a prevailing party to shift expert fees

under section 1415. The appellants point to a single sentence in

the House Conference Report on the Handicapped Children’s

Protection Act (Conference Report), which amended the IDEA:

The conferees intend that the term “attorney’s

fees as part of the costs” include reasonable

expenses and fees of expert witnesses and the

reasonable costs of any test or evaluation which

8

is found to be necessary for the preparation of

the parent or guardian’s case in the action or

proceeding, as well as traditional costs incurred

in the course of litigating the case.

H.R. CONF. REP . NO. 99-687, at 5 (1986), reprinted in 1986

U.S.C.C.A.N. 1789, 1808. While two of our sister circuits have

looked to this language in construing section 1415, see Murphy,

402 F.3d at 336-37; Arons, 842 F.2d at 62, we believe recourse

to it is simply unwarranted.

While “[r]eference to statutory design and pertinent legislative

history may often shed new light on congressional intent,

notwithstanding statutory language that appears superficially

clear,” Natural Res. Def. Council v. Browner, 57 F.3d 1122,

1127 (D.C. Cir. 1995) (internal quotation marks omitted);

accord, e.g., Sierra Club v. EPA, 353 F.3d 976, 988 (D.C. Cir.

2004); Consumer Elec. Ass’n v. FCC, 347 F.3d 291, 298 (D.C.

2003), we do not confront “superficially clear” language here.

In Casey, the Supreme Court said that the expression

“reasonable attorneys’ fees as part of the costs” is clear, not just

superficially so. See 499 U.S. at 98-99 (rejecting argument that

section 1988’s purpose must overcome ordinary meaning of

statutory terms because “[w]here [statutory text] contains a

phrase that is unambiguous—that has a clearly accepted

meaning in both legislative and judicial practice—we do not

permit it to be expanded or contracted by the statements of

individual legislators or committees during the course of the

enactment process”). This is good enough for us for “when the

statute’s language is plain, the sole function of the courts – at

least where the disposition required by the text is not absurd –

is to enforce it according to its terms.” Lamie v. United States

Tr., 540 U.S. 526, 534 (2004) (internal quotation marks

omitted); see also Ratzlaf v. United States, 510 U.S. 135, 147-48

(1994) (courts should “not resort to legislative history to cloud

a statutory text that is clear”); Davis v. Michigan Dep’t of

9

Treasury, 489 U.S. 803, 808-09 n.3 (1989) (“Legislative history

is irrelevant to the interpretation of an unambiguous statute.”).

In our view this case represents a paradigmatic one for

application of the principle that statutory text enacted by the

Congress trumps the views expressed by one of its committees.3

See Neosho R-V Sch. Dist., 315 F.3d at 1032 (“Absent some

ambiguity in the statute, we have no occasion to look to

legislative history.”); accord T.D., 349 F.3d at 482. As we said

last term, “there would be no need for a rule – or repeated

admonition from the Supreme Court – that there should be no

resort to legislative history when language is plain and does not

lead to an absurd result, if the rule did not apply precisely when

plain language and legislative history may seem to point in

opposite directions.” United States ex rel. Totten v. Bombardier

Corp., 380 F.3d 488, 494-95 (D.C. Cir. 2004).

Continuing down this path, the appellants maintain that the

Conference Report gains additional relevance in light of the

Supreme Court’s apparent reliance on it in Casey. The

appellants are not alone in this view: In reaching a holding

contrary to our own, the Second Circuit found the Casey Court’s

characterization of this snippet of legislative history as “an

apparent effort to depart from ordinary meaning and to define a

term of art,” 499 U.S. at 91 n.5, to support its construction of

section 1415. See Murphy, 402 F.3d at 336-38. “[A]pparent” or

3

At oral argument, there was some discussion whether the Congress

voted on the language of the Conference Report the appellants rely

on. See Tr. of Oral Argument at 4:10. We have explained before that

“[w]hile both the conference report and the joint explanatory

statement are printed in the same document, Congress votes only on

the conference report,” which contains the “formal legislative

language.” Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236

(D.C. Cir. 2003). The language the appellants rely on is from the

“joint explanatory statement,” see H.R. C ONF . REP . NO. 99-687, at 5

(1986), reprinted in 1986 U.S.C.C.A.N. 1789, 1808, and thus has no

force of law. See id. at 237.

10

no, we conclude, as have two other circuits, see T.D., 349 F.3d

at 482; Neosho R-V Sch. Dist., 315 F.3d at 1032, that the

Conference Report’s “effort” is a failure. A sentence in a

conference report cannot rewrite unambiguous statutory text,

particularly text with a Supreme Court- tested and -approved

meaning. The Casey holding declares that “[w]here [the statute]

contains a phrase that is unambiguous—that has a clearly

accepted meaning in both legislative and judicial practice—we

do not permit it to be expanded or contracted by the statements

of individual legislators or committees during the course of the

enactment process.” 499 U.S. at 99-100 (citing United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989).

Nor are we convinced to reach a different result by the

appellants’ other arguments derived from the Casey Court’s

footnote reference to the Conference Report. First, we are

unpersuaded by the fact that the Justice who included the

footnote is a reputed textualist. See Murphy, 402 F.3d at 337

(“To those who would question our resort to legislative history,

we observe that it was Justice Scalia, a noted skeptic of the use

of legislative history, who authored Casey’s dicta about the

apparent effort by Congress to depart from the ordinary meaning

of the term ‘costs’ in the IDEA.”). If the Court had found this

one sentence of legislative history compelling, it would have

included section 1415 in its catalogue of statutes authorizing a

prevailing party to shift attorney’s fees as well as expert fees. In

other words, the Court would have counted “[a]t least” 35 such

statutes, not 34. Casey, 499 U.S. at 89.

Second, we cannot agree with the Second Circuit that “it [is]

reasonable to infer that Congress, on the basis of the Supreme

Court’s decision in Casey, saw no need to amend the IDEA

because the Court had recognized that, in enacting the IDEA,

Congress sufficiently indicated in the Conference Committee

Report that prevailing parties could recover expert fees under

the Act.” Murphy, 402 F.3d at 337. While the Supreme Court

11

has instructed us that “[t]he fact that inaction may not always

provide crystalline revelation . . . should not obscure the fact that

it may be probative to varying degrees,” Johnson v. Transp.

Agency of Santa Clara Cty., 480 U.S. 616, 629 n.7 (1987);

accord United States v. Delgado-Garcia, 374 F.3d 1337, 1359

(D.C. Cir. 2004), we doubt that the Congress’s inaction with

respect to section 1415 following Casey is probative at all.

More to the point, given that the Casey Court merely labeled the

Conference Report an “apparent effort” by the congressional

committee and did not number section 1415 among the statutes

authorizing the recovery of attorney’s fees and expert fees, we

are unwilling to infer from the Congress’s failure after Casey to

amend section 1415 that the Congress believed that the Supreme

Court had considered the text to have been altered by the

Conference Report. Indeed, given that the version of section

1988 construed in Casey is nearly identical to section 1415, the

more reasonable inference to draw from the fact that, following

Casey, the Congress amended section 1988 but not section 1415

is that the Congress had no intention of allowing recovery of

expert fees under the IDEA. Before the Court handed down

Casey, the Congress had a proven track record demonstrating its

ability to shift expert fees when it desired and, following the

Court’s decision, the Congress was—and is—unquestionably on

notice of the precise language required to do so. The former

inferential path, in any event, leads to where reason goes to die.

Moving from Supreme Court precedent to our own, the

appellants cite our decision in Moore v. Dist. of Columbia, 907

F.2d 165 (D.C. Cir.) (en banc), cert. denied, 488 U.S. 998

(1990), as well as the procedural history leading up to it, for the

proposition that we have long allowed an IDEA prevailing party

to recover expert fees. In Moore, however, we addressed only

the issue “whether the Handicapped Children’s Protection Act

. . . authorizes a court to award attorney fees to a party who has

prevailed in an administrative proceeding under the Education

of the Handicapped Act,” id. (internal citations omitted), and

12

“conclude[d] that both the text and the legislative history of

HCPA evidence congressional intent to authorize recovery of

fees by a parent who prevails in EHA administrative

proceedings.” Id. at 176. Our holding in Moore did not

consider whether a prevailing party may shift his expert fees, as

appellants themselves readily concede. See Appellants’ Br. at

29 (“Th[e] [expert fees] issue simply was never addressed.”).

The appellants’ last argument is that, given the critical role of

professional opinion in assessing the educational needs of a

child with disabilities, the upshot of denying an IDEA prevailing

party expert fees will be that parents seeking to contest a school

district’s educational placement may face a severe informational

disadvantage vis-à-vis the school district. While we are not

unsympathetic to the challenges that these and other parents

often confront in securing an appropriate free education for their

children with disabilities, this line of argument—based on

considerations of public policy rather than statutory

interpretation—is, in our view, addressed to the wrong branch

of government under our constitutional design. Our job is to

interpret the law as it is, not as it should be. See Neosho R-V

Sch. Dist., 315 F.3d at 1033 (“ ‘[T]he problems of public policy

are for the legislature and [the court’s] job is one of interpreting

statutes, not redrafting them.’ ” (quoting Welsh v. Boy Scouts of

Am., 993 F.2d 1269, 1270-71 (7th Cir. 1993))). Accordingly, a

prevailing party under the IDEA may shift expert fees only to

the extent allowed under sections 28 U.S.C. §§ 1821 and 1920.4

4

While the appellants contend that 28 U.S.C. § 1821 is inapplicable

in this context because it is limited to court witnesses, see 28 U.S.C.

§ 1821(a)(1) (“[A] witness in attendance at any court of the United

States, or before a United States Magistrate Judge, or before any

person authorized to take his deposition pursuant to any rule or order

of a court of the United States, shall be paid the fees and allowances

provided by this section.”), we find their argument, which they raised

for the first time in their reply brief, untimely. See, e.g., Presbyterian

Med. Ctr. of the Univ. of Penn. Health Sys. v. Shalala, 170 F.3d 1146,

13

Finally, a word or two about our colleague’s dissent. Of

course, the Congress may adopt a term of art in a fee-shifting

statute. See Casey, 499 U.S. at 91 n.5. Of course, a conference

report offers “ ‘persuasive evidence of congressional intent’

after statutory text itself.” Moore, 907 F.2d at 175 (quoting &

citing Demby v. Schweicker, 671 F.2d 507, 510 (D.C. Cir.

1981)) (emphasis added). But the words of the statute do indeed

enjoy pride of place: Our “inquiry into the Congress’s intent

proceeds, as it must, from ‘the fundamental canon that statutory

interpretation begins with the language of the statute itself.’ ”

Am. Fed’n of Labor & Congress of Indus. Orgs. v. Fed. Elec.

Comm’n, 333 F.3d 168, 180 (D.C. Cir. 2003) (Henderson, J.,

concurring in judgment) (quoting & citing Butler v. West, 164

F.3d 634, 639 (D.C. Cir. 1999)). Thus job one is to read the

statute, read the statute, read the statute. See Am. Fed’n of

Labor & Congress of Indus. Orgs., 333 F.3d at 180 (Henderson,

J., concurring in judgment) (citing HENRY J. FRIENDLY,

BENCHMARKS 202 (1967) (“(1) Read the statute; (2) read the

statute; (3) read the statute!” (quoting Justice Frankfurter’s

“threefold imperative to law students”))). Moreover, we do not

read section 1415 in a precedential vacuum. Despite the

dissent’s characterization of Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 439 (1987), as allowing a court to

“impl[y]” or “infer” “explicit statutory authority” to shift expert

fees, Dissent at 7, 9, the Supreme Court held otherwise in Casey

in deciding “whether the term ‘attorney’s fee’ in § 1988

provides the ‘explicit statutory authority’ required by Crawford

1152 (D.C. Cir. 1999) (court need not consider argument raised for

first time in reply brief). In any event, we agree with the Eighth

Circuit that “the specific language of the IDEA broadens the

applic ation of the general cost statutes by permitting the court to

‘award reasonable attorneys’ fees as part of the costs’ ‘in any action

or proceeding brought under this section.’ ” Neosho R-V Sch. Dist.,

315 F.3d at 1031-32 (citing 20 U.S.C. § 1415(i)(3)(B) & emphasis in

original).

14

Fitting” to shift expert fees. Casey, 499 U.S. at 87. It held that

the term “unambiguous[ly]” does not; the term “has a clearly

accepted meaning in both legislative and judicial practice,” a

meaning not “expanded or contracted by the statements of

individual legislatures or committees.” Id. at 98 (emphasis

added). Accordingly, the dissent’s observation that “nothing in

Casey precludes reference to legislative history clearly

indicating that Congress intends to depart from the ordinary

meaning of a statutory phrase and to define that phrase as a term

of art” proves nothing with respect to section 1415. Dissent at

6. Given that the Congress used a “restrictive” term in section

1415 and section 1988, Casey, 499 U.S. at 99, our applying the

same “restrictive” meaning to it now can hardly be labeled an

“overreading” of Casey. Dissent at 7. And given that the

Supreme Court found the term unambiguous, our rejection of a

legislative committee’s differing gloss cannot, consistent with

Supreme Court precedent and our own, fairly be described as

allowing “the Court to trump Congress in defining statutory

terms.” Dissent at 5. To do otherwise would substitute the

Congressional Record for the United States Code, as the

Supreme Court cautioned us against in Casey. See 499 U.S. at

98. Thus, while the dissent “infer[s]” “a comprehensive

statement of congressional intent” by reading a brief passage of

legislative history, Dissent at 4, 9, we find no “explicit statutory

authority” to shift expert fees in section 1415 by reading the

words of the statute.

* * *

For the foregoing reasons, the judgment of the district court is

affirmed.

So ordered.

ROGERS, Circuit Judge, dissenting: In West Virginia

University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), the

Supreme Court construed the “ordinary meaning” of the term

“attorney’s fees” in 42 U.S.C. § 1988 not to include fees for

experts’ services. Id. at 91-92 & n.5. Listing 34 statutes that

explicitly shift both attorney’s fees and expert witness fees, see

id. at 89 & n.4, the Court explained that “this statutory usage

shows beyond question that attorney’s fees and expert fees are

distinct items of expense,” id. at 92. The Court further

explained that while lower courts may have relied previously on

their equitable powers to shift fees for experts’ services, they did

not shift them as an element of attorney’s fees, see id. at 92, and

at the time § 1988 was enacted, “neither statutory nor judicial

usage regarded the phrase ‘attorney’s fees’ as embracing fees for

experts’ services,” id. at 97. Thus, the Court concluded that the

“clearly accepted meaning in both legislative and judicial

practice” of the phrase “attorney’s fees” was “unambiguous”

and could not be “expanded or contracted by the statements of

individual legislators or committees during the course of the

enactment process.” Id. at 98-99. The Court therefore held that

the term “attorney’s fees” in § 1988 did not provide the

necessary “explicit statutory authority” to shift fees for experts’

services beyond the limits set in 28 U.S.C. §§ 1821 and 1920.

Id. at 86-87 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437, 439 (1987)). While my colleagues treat this

conclusion as “the end of the matter” because the fee-shifting

provision of the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1415(i)(3)(B), contains the same

language construed by the Court in Casey, Op. at 7, I conclude,

in light of this court’s en banc decision in Moore v. District of

Columbia, 907 F.2d 165 (D.C. Cir. 1970) (en banc), that the

Supreme Court’s definition of the “ordinary meaning” of the

term “attorney’s fees” does not apply to the IDEA’s fee-shifting

provision because Congress clearly expressed its intent in the

Conference Report to define the phrase “attorney’s fees as part

of the costs” as a term of art to include fees for experts’ services.

2

See H.R. C O NF. REP . NO. 99-687, at 5 (1986).1 Accordingly, I

respectfully dissent.

The Joint Explanatory Statement in the Conference Report

accompanying the fee-shifting provision of the IDEA states:

The conferees intend that the term “attorneys’ fees as

part of the costs” include reasonable expenses and fees

of expert witnesses and the reasonable costs of any test

or evaluation which is found to be necessary for the

preparation of the parent or guardian’s case in the

action or proceeding, as well as traditional costs

incurred in the course of litigating a case.

Id. In footnote 5 of the Casey opinion, the Supreme Court

explained that this statement did not provide evidence of the

“ordinary meaning” of the term “attorney’s fees” in § 1988

because the “specification [in the Conference Report] would

have been quite unnecessary if the ordinary meaning of the term

included those elements. The statement is an apparent effort to

depart from ordinary meaning and to define a term of art.”

Casey, 499 U.S. at 91 n.5. Thus, the Court recognized in

footnote 5 that Congress could depart from the ordinary

meaning of the statutory phrase in § 1988 by defining it as a

term of art. While the Second and Third Circuits view the

Conference Report accompanying the IDEA’s fee-shifting

provision as persuasive evidence that Congress intended to

authorize recovery of fees for experts’ services in IDEA

proceedings, see Murphy v. Arlington Cent. Sch. Dist. Bd. of

1

The Conference Report accompanied the Handicapped

Children’s Protection Act of 1986, which amended the IDEA to

include a fee-shifting provision that was originally codified at 20

U.S.C. § 1415(e)(4)(B) and is currently codified at 20 U.S.C. §

1415(i)(3)(B).

3

Educ., 402 F.3d 332, 337 (2d Cir. 2005); Arons v. New Jersey

State Bd. of Educ., 842 F.2d 58, 62 (3d Cir. 1987), my

colleagues join the Seventh and Eighth Circuits in rejecting

reliance on the Conference Report on the grounds that the

Supreme Court in Casey defined the ordinary meaning of the

term “attorney’s fees” and that the “apparent effort” in the

Conference Report to depart from that meaning was

unsuccessful. See Op. at 10; T.D. v. LaGrange Sch. Dist. No.

102, 349 F.3d 469, 482 (7th Cir. 2003); Neosho R-V Sch. Dist.

v. Clark, 315 F.3d 1022, 1032 (8th Cir. 2003). In my view, that

conclusion is inconsistent with this court’s en banc decision in

Moore and rests on a misreading of Casey and Crawford Fitting.

Sitting en banc, this court in Moore relied on a conference

report as evidence of congressional intent to authorize recovery

of attorney’s fees incurred in IDEA administrative proceedings.

See Moore, 907 F.2d at 175. In so doing, the court recognized

that a conference report “‘is the most persuasive evidence of

congressional intent’ after statutory text itself.” Id. (quoting

Demby v. Schweicker, 671 F.2d 507, 510 (D.C. Cir. 1981)).

Similarly, in relying on the Conference Report accompanying

the IDEA’s fee-shifting provision as evidence of congressional

intent to allow the shifting of fees for experts’ services in IDEA

proceedings, the Second Circuit in Murphy explained why a

joint explanatory statement in a conference report is more

persuasive as evidence of legislative intent than a committee

report prepared before either the House or the Senate has passed

a bill. See Murphy, 402 F.3d at 337. Because a conference

report “represents the final statement of terms agreed to by both

houses, next to the statute itself it is the most persuasive

evidence of congressional intent.” Id. (quoting Disabled in

Action of Metro. N.Y. v. Hammons, 202 F.3d 110, 124 (2d Cir.

2000)). Although my colleagues observe that Congress does not

vote on the joint explanatory statement, see Op. at 9 n.3 (citing

Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236 (D.C. Cir.

4

2003)), it is nonetheless true that in voting on the statutory

language agreed to by the House and Senate conferees, Congress

can reasonably be understood to accept the joint explanatory

statement as the intended meaning of the statutory text. See

Moore, 907 F.2d at 176; see also Murphy, 402 F.3d at 337

(citing ROBERT A. KATZMANN , COURTS AND CONGRESS 63-64

(1997)). As conference reports are often terse statements

unaccompanied by the kind of extended analysis contained in

the initial reports of the individual committees of the House and

Senate, the fact that the Conference Report accompanying the

fee-shifting provision of the IDEA contains only a “single

sentence” on fees for experts’ services is not a reason for

rejecting its persuasive force, Op. at 7, especially when that

sentence is a comprehensive statement of congressional intent

on the subject.

While, as my colleagues point out, Op. at 8-9, the Supreme

Court has held that there is no occasion to resort to legislative

history when the statutory language is clear, the Court has also

held that the “‘strong presumption’ that the plain language of the

statute expresses congressional intent [can be] rebutted . . . when

a contrary legislative intent is clearly expressed,” such as a

“conclusive statement in the legislative history.” Ardestani v.

INS, 502 U.S. 129, 135-36 (1991) (quoting Rubin v. United

States, 449 U.S. 424, 430 (1981)) (internal citation omitted).

Indeed, because the ultimate purpose of statutory construction

is to effectuate congressional intent, cf. Chickasaw Nation v.

United States, 534 U.S. 84, 94 (2001), a statutory phrase is to be

given its ordinary meaning only “[i]n the absence of persuasive

reasons to the contrary.” Banks v. Chicago Grain Trimmers

Ass’n, 390 U.S. 459, 465 (1968); Nat’l Insulation Transp.

Comm. v. ICC, 683 F.2d 533, 537 (D.C. Cir. 1982). Although

the Court in Casey found no persuasive evidence of

congressional intent to depart from the ordinary meaning of the

term “attorney’s fees” in § 1988, see 499 U.S. at 98, here the

5

Conference Report accompanying the IDEA’s fee-shifting

provision clearly and conclusively states Congress’s intent to

define the phrase “attorney’s fees as part of the costs” as a term

of art to include fees for experts’ services. To apply the

Supreme Court’s definition of the ordinary meaning of the term

“attorney’s fees” to the IDEA in the face of contrary legislative

intent is to allow the Court to trump Congress in defining

statutory terms. While my colleagues correctly point out that

the “inquiry into the Congress’s intent . . . begins with the

language of the statute,” Op. at 13 (quoting Am. Fed’n of Labor

& Congress of Indus. Orgs. v. Fed. Election Comm’n, 333 F.3d

168, 180 (D.C. Cir. 2003) (Henderson, J., concurring in the

judgment) (emphasis added)), they fail to acknowledge that it

does not always end there. The situation might be somewhat

different had the Court in Casey purported to define “attorney’s

fees” as a term of art, as it did with the term “prevailing party”

in Buckhannon Board & Care Home, Inc. v. West Virginia

Department of Health & Human Resources, 532 U.S. 598, 604-

05 (2001). Even in that situation, this court and other circuits

have recognized that the Supreme Court’s definition of

“prevailing party” in Buckhannon is only presumptive and that

“some good reason” may compel the court to construe the term

differently in a different statute. Oil, Chem. & Atomic Workers

Int’l Union v. Dep’t of Energy, 288 F.3d 452, 455 (D.C. Cir.

2002); see also Doe v. Boston Pub. Sch., 358 F.3d 20, 25-26 (1st

Cir. 2004); T.D., 349 F.3d at 475 (7th Cir. 2003).

Thus, while the Court in Casey reasoned that construing the

phrase “attorney’s fees” in § 1988 to include fees for experts’

services would render superfluous the statutory language in the

34 statutes explicitly shifting both attorney’s fees and expert

fees, see 499 U.S. at 92, it did so in the context of defining the

ordinary meaning of the term “attorney’s fees,” recognizing in

footnote 5 the possibility that Congress could depart from the

ordinary meaning of the term by defining the statutory phrase as

6

a term of art. Moreover, while the Court in Casey took pains to

demonstrate that the term “attorney’s fees” had a “clearly

accepted meaning in both legislative and judicial practice” at the

time § 1988 was enacted, id. at 98, it offered only a conclusory

response to the dissent’s position that fees for experts’ services

were part of “costs.” Id. at 87 n.3. Finally, while the Court in

Casey warned that legislative history could not change the

unambiguous ordinary meaning of a statutory phrase, see id. at

98, that statement was based on the Court’s observation that, in

enacting § 1988, Congress intentionally “chose . . . to enact

more restrictive language” than that in the 34 statutes that

explicitly shift both attorney’s fees and expert fees, id. at 99.

The Conference Report indicates, as footnote 5 acknowledges,

that Congress made a different choice in enacting the fee-

shifting provision of the IDEA: instead of relying on the

ordinary meaning of the term “attorney’s fees,” it chose to

define the phrase “attorney’s fees as part of the costs” as a term

of art to include fees for experts’ services. Thus, while Casey

instructs that legislative history cannot alter the ordinary

meaning of a statutory phrase that the Court has construed,

nothing in Casey precludes reference to legislative history

clearly indicating that Congress intends to depart from the

ordinary meaning of a statutory phrase and to define that phrase

as a term of art.

In disregarding the Conference Report as evidence of

congressional intent, my colleagues reason that if the Supreme

Court in Casey had viewed Congress’s “apparent effort” in

enacting IDEA’s fee-shifting provision to depart from the

ordinary meaning of the term “attorney’s fees” as successful, it

would have listed 35 statutes instead of 34. See Op. at 10. In

listing the 34 statutes, however, the Court did not purport to

catalog every statute that authorizes the shifting of fees for

experts’ services; rather, it identified only the statutes that

“explicitly shift attorney’s fees and expert witness fees,” Casey,

7

499 U.S. at 89 (first emphasis added), saying nothing, other than

in footnote 5, about statutes like the IDEA that implicitly do so

by defining the phrase “attorney’s fees as part of the costs” as a

term of art to include fees for experts’ services. Thus, the fact

that the IDEA is not included in the list of statutes that explicitly

shift both attorney’s fees and expert witness fees does not

indicate that the Court viewed Congress’s “apparent effort” to

depart from the ordinary meaning of “attorney’s fees” as

unsuccessful. Nor does footnote 5 itself indicate that the

“apparent effort” was a failure. While the word “apparent” can

mean “ostensible rather than actual,” suggesting that the effort

was unsuccessful, it can also mean “capable of being easily

understood,” or “obvious,” suggesting that the effort was

successful. See RA N D O M HOUSE W EBSTER’S COLLEGE

DICTIONARY 64-65 (1999). Thus, in concluding that the Court

in Casey viewed the “apparent effort” as a failure, my

colleagues read too much into footnote 5.

My colleagues also read too much into Crawford Fitting,

essentially adopting the overreading by the Seventh and Eighth

Circuits in T.D. and Neosho. See Op. at 6. While the Eighth

Circuit acknowledged in Neosho that the phrase “attorney’s fees

as part of the costs” in the IDEA “assumes, by its construction,

that costs include something more than attorney’s fees,” 315

F.3d at 1031 (quoting Pazik v. Gateway Reg. Sch. Dist., 130 F.

Supp. 2d 217, 220 (D. Mass. 2001)) (internal quotation marks

omitted), it concluded based on Crawford Fitting that “[a]bsent

a specific definition of costs,” the recovery of expert fees is

limited by 28 U.S.C. §§ 1821 and 1920, id. Noting that the

“plain language” of the IDEA’s fee-shifting provision does not

explicitly authorize the shifting of fees for experts’ services in

excess of the limits set in 28 U.S.C. §§ 1821 and 1920, the

Eighth Circuit concluded that the “apparent effort” to shift fees

for experts’ services in the Conference Report was

“unsuccessful” because it was not the kind of “explicit statutory

8

authority” required by Crawford Fitting. Id. at 1032. Adopting

the Eighth Circuit’s reasoning, the Seventh Circuit in T.D., 349

F.3d at 481-82, agreed.

The Supreme Court held in Crawford Fitting that a court

may not shift expert witness fees in excess of the amounts

authorized in 28 U.S.C. §§ 1821 and 1920 “absent contract or

explicit statutory authority to the contrary.” 482 U.S. at 439. As

the separate opinions of Justice Blackmun and Justice Marshall

indicate, the Court in Crawford Fitting did not reach the

question whether § 1988, or any other statute, authorized the

shifting of expert witness fees. See id. at 445 (Blackmun, J.,

concurring); id. at 446 n.1 (Marshall, J., dissenting). In that

case, involving the antitrust laws, the district court invoked no

specific statute in shifting expert witness fees, instead relying

solely on its general discretion to award costs under Rule 54(d)

of the Federal Rules of Civil Procedure. See id. at 438-39.

Thus, in the context of the Crawford Fitting decision, the phrase

“explicit statutory authority” refers not to explicit statutory

language, but to specific statutory authority apart from the

court’s general discretion to shift costs under a procedural rule.

See id. Indeed, the Court emphasized the necessity of “plain

evidence of congressional intent to supercede” the limits set in

28 U.S.C. §§ 1821 and 1920. Id. at 445. While it is true that the

Court indicated that explicit statutory text would serve as plain

evidence of congressional intent to shift expert witness fees, it

did not state that statutory text was the only acceptable evidence

of congressional intent. Rather, the Court stated:

We will not lightly infer that Congress has repealed §§

1920 and 1821, either through Rule 54(d) or any other

provision not referring explicitly to witness fees. As

always, “‘[w]here there is no clear intention otherwise,

a specific statute will not be controlled or nullified by

a general one, regardless of the priority of enactment.’”

9

Id. (alteration and emphasis in original) (quoting Radzanower v.

Touche Ross & Co., 426 U.S. 148, 153 (1976)). By stating that

it would not lightly infer authority to shift expert witness fees

absent an explicit statutory provision, the Court acknowledged

that there may be certain circumstances in which it would infer

such authority based on plain evidence of clear congressional

intent. Because this court treats conference reports as strong

evidence of congressional intent, see Moore, 907 F.2d at 176,

and because the Conference Report accompanying the IDEA’s

fee-shifting provision provides plain evidence that Congress

clearly intended for the statutory phrase “attorney’s fees as part

of the costs” to authorize the shifting of fees for experts’

services, that statutory phrase provides the “explicit statutory

authority” required by Crawford Fitting.

Accordingly, I would reverse and vacate the order of the

district court denying appellants an award of fees for experts’

services in excess of the amounts set in 28 U.S.C. §§ 1821 and

1920, and I respectfully dissent.