District of Columbia v. Jeppsen Ex Rel. Jeppsen

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2007 Decided February 1, 2008

No. 06-7200

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,

APPELLEE

v.

CAROLYN JEPPSEN AND

M.J., BY HER PARENT AND NEXT FRIEND, CAROLYN JEPPSEN,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 05cv01309)

Paul S. Dalton argued the cause and filed the briefs for

appellants. William E. Houston entered an appearance.

Mary T. Connelly, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellee. With her on the brief were Linda J. Singer,

Attorney General at the time the brief was filed, Todd S. Kim,

Solicitor General, and Edward E. Schwab, Deputy Solicitor

General.

Before: GINSBURG, Chief Judge, and ROGERS and BROWN,

Circuit Judges.

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Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: The district court dismissed as

moot the District of Columbia’s suit against Carolyn Jeppsen

and denied her application for attorneys’ fees for want of

jurisdiction. We hold she was eligible for attorneys’ fees as the

“prevailing party” within the meaning of the Individuals with

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

I. Background

Jeppsen’s daughter, M.J., has a hearing disability on

account of which she attended a private school at public expense

pursuant to the IDEA. In 2003 the District of Columbia Public

Schools initiated a program for the hearing impaired and in the

fall of 2004 sought to move M.J. into the public school system.

Jeppsen petitioned for a “due process hearing,” as provided in

20 U.S.C. § 1415(f), to contest the move. When the hearing

officer ruled that the District may not move M.J. to a public

school, the District sought review by filing this suit against

Jeppsen in the district court. See 20 U.S.C. § 1415(i)(2)

(according right of action in federal court to persons “aggrieved”

by IDEA administrative proceeding). The complaint sought

declaratory relief, “reasonable costs and expenses, including

attorneys’ fees,” and “any other relief that this Court deems

just.”

In the fall of 2005, during the pendency of this action, the

District again sought to move M.J. into the public school

system. In January 2006 Jeppsen received another due process

hearing, in the course of which the parties entered into a

settlement agreement that the hearing officer incorporated into

an order in favor of Jeppsen.

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Jeppsen then moved to dismiss the instant action on the

ground that the court could give the District no meaningful

relief. The District had agreed to pay for M.J. to remain in

private school during the 2005-06 school year, and Jeppsen

argued the District’s case was moot with respect to the prior

school year, which had ended, and premature with respect to the

next school year, by which M.J.’s needs may have changed.

Jeppsen also sought attorneys’ fees as the “prevailing party”

under the IDEA. The District opposed Jeppsen’s motion for

dismissal, arguing the case was not moot with regard to the

2004-05 academic year because its complaint was broad enough

for it to claim reimbursement of the tuition the District had paid

for that year and the dispute was capable of repetition.

The district court, holding the IDEA does not authorize a

school district to recover tuition or other expenses from a parent,

concluded “there is no ‘effectual relief’ available to plaintiff”

and dismissed the case as moot. 468 F. Supp. 2d 107, 111-12

(2006). The court then held it lacked jurisdiction to award

attorneys’ fees to Jeppsen because it had dismissed the case for

want of jurisdiction. Id. at 112-13.

II. Analysis

Jeppsen argues she is eligible for attorneys’ fees because,

having moved successfully to dismiss the case against her, she

was the “prevailing party” in the district court. The District of

Columbia first defends the district court’s view that it lacked

jurisdiction to award attorneys’ fees because it had dismissed the

action as moot. Alternatively, the District argues that under

Buckhannon Board and Care Home, Inc. v. West Virginia

Department of Health and Human Resources, 532 U.S. 598

(2001), a defendant who obtains a dismissal not based upon the

merits of the case has not “prevailed” within the meaning of the

IDEA. We address both propositions de novo. Trudeau v. FTC,

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456 F.3d 178, 183 (D.C. Cir. 2006) (subject matter jurisdiction

of district court); Edmonds v. FBI, 417 F.3d 1319, 1322 (D.C.

Cir. 2005) (whether a “prevailing party”).

A. Jurisdiction of the District Court

Citing cases that hold a plaintiff’s interest in attorneys’ fees

ordinarily does not confer Article III standing, e.g., Lewis v.

Cont’l Bank Corp., 494 U.S. 472, 480 (1990); Moseley v. Bd. of

Educ., 483 F.3d 689, 694 (10th Cir. 2007), the District argues

the district court did not have Article III jurisdiction to award

fees to Jeppsen in this case, which is moot as to the merits and

therefore not within the jurisdiction of the court. The cases upon

which the District relies, however, support only a narrower

proposition: Article III requires that the requested remedy

redress the “injury in fact” of which a plaintiff complains, see

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);

when intervening events have mooted the plaintiff’s underlying

claim, the plaintiff’s continuing interest in attorneys’ fees does

not support her continued standing to pursue the underlying

claim. Lewis, 494 U.S. at 480; see also Liu v. INS, 274 F.3d

533, 536 (D.C. Cir. 2001).

In addition to its constitutional argument, the District argues

the court lacks statutory subject matter jurisdiction to award

fees. The District points to Keene Corp. v. Cass, 908 F.2d 293,

298 (1990), in which the Eighth Circuit held a district court may

not award attorneys’ fees to a defendant who obtains the

dismissal for want of jurisdiction of an action under 42 U.S.C.

§ 1983, on the ground that § 1988, the applicable fee-shifting

provision, “does not by its terms confer subject matter jurisdic-

tion upon federal courts.” We note the circuits are divided over

whether a district court may award attorneys’ fees to the

defendant in a case over which the court lacks subject matter

jurisdiction. Compare Primax Recoveries, Inc. v. Gunter, 433

5

F.3d 515, 520 (6th Cir. 2006) (“court without subject-matter

jurisdiction over an ERISA action lacks the authority to award

attorney’s fees”), Branson v. Nott, 62 F.3d 287, 293 (9th Cir.

1995), and W.G. ex rel. D.G. v. Senatore, 18 F.3d 60, 64-65 (2d

Cir. 1994), with United States ex rel. Grynberg v. Praxair, Inc.,

389 F.3d 1038, 1055-58 (10th Cir. 2004), and Citizens for a

Better Env’t v. Steel Co., 230 F.3d 923, 927-28 (7th Cir. 2000).

See also Wendt v. Leonard, 431 F.3d 410, 414 (4th Cir. 2005)

(finding no need to address this issue). As we explain in the

next section, however, this case gives us no occasion to decide

whether a defendant who obtains a dismissal for want of

jurisdiction may be awarded attorneys’ fees absent a statute

conferring subject matter jurisdiction over her fee petition.

B. “Prevailing Party” Status

The District relies upon Buckhannon, 532 U.S. 598, for the

proposition that a party does not “prevail” unless it succeeds

upon the merits of the case. In Buckhannon the Supreme Court

rejected the “catalyst theory,” according to which a plaintiff

prevailed if its lawsuit brought about the desired change in the

defendant’s conduct without the court ordering the defendant to

change its ways -- that is, without what the Supreme Court

described as a “judicially sanctioned change in the legal

relationship of the parties.” Id. at 605. Prior to Buckhannon we

had held a defendant prevailed when it obtained a dismissal for

improper venue. Noxell Corp. v. Firehouse No. 1 Bar-B-Que

Rest., 771 F.2d 521, 525 (D.C. Cir. 1985) (defendant “achieved

an enduring victory” in that plaintiff “is forever barred from

reinstituting the action in the District of Columbia”); see also

Moten v. Bricklayers, Masons & Plasterers Int’l Union, 543

F.2d 224, 239 (D.C. Cir. 1976) (per curiam) (appellee who

secures dismissal for want of jurisdiction of appeal by intervenor

is “prevailing party” under 42 U.S.C. § 2000e-5(k)). In the

District’s view, Noxell does not survive Buckhannon.

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Under Buckhannon it is clear that a plaintiff “prevails” only

upon obtaining a judicial remedy that vindicates its claim of

right. See Select Milk Producers, Inc. v. Johanns, 400 F.3d 939,

948 (D.C. Cir. 2005) (plaintiff whose “claim was fully vindi-

cated by the court-ordered” preliminary injunction, although not

a final determination on merits, is “prevailing party” under

Buckhannon). On the other hand, a defendant might be as much

rewarded by a dispositive order that forever forecloses the suit

on a procedural or remedial ground as by a favorable judgment

on the merits. See Dozier v. Ford Motor Co., 702 F.2d 1189,

1191 (D.C. Cir. 1983) (res judicata precludes relitigating issue

whether amount in controversy exceeds minimum required for

jurisdiction under 28 U.S.C. § 1332). A ruling on a jurisdic-

tional ground, that the action fails either in law or in fact, might

give the defendant all it could receive from a judgment on the

merits. Be that as it may, this court has not addressed whether,

in light of Buckhannon, a defendant “prevails” when the case

against it is dismissed for want of jurisdiction.

Prior to Buckhannon, the courts of appeals had divided on

the issue whether a defendant “prevails” upon obtaining a

judicial order dismissing the plaintiff’s case for want of jurisdic-

tion. Compare Steel Co., 230 F.3d at 929-30 (“when a dismissal

for want of jurisdiction forecloses the plaintiff’s claim, the

defendant is the ‘prevailing party’” because such a dismissal is

“an entitlement not to have any change in legal relations”), with

Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 183 n.15 (3d

Cir. 1999) (contra), and Keene Corp., 908 F.2d at 298. Within

the Ninth Circuit, compare Elks National Foundation v. Weber,

942 F.2d 1480, 1485 (1991) (defendant may “prevail” on

jurisdictional ground), with Branson, 62 F.3d at 293 (contra).

Since Buckhannon, two courts of appeals have held that a

defendant “prevails” only if it succeeds on the merits.

Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 164-65

(1st Cir. 2007); Dattner v. Conagra Foods, Inc., 458 F.3d 98,

7

101-02 (2d Cir. 2006). The Tenth Circuit, on the other hand,

adopted the reasoning of the Seventh Circuit in Steel Co.

without citing Buckhannon, see Grynberg, 389 F.3d at 1056-58,

and Steel Co., like Buckhannon, relied upon Texas State

Teachers Ass’n v. Garland Independent School District, 489

U.S. 782 (1989), in deciding whether a party “prevails.” Steel

Co. held the defendant had “prevailed” because it obtained a

judicial order resulting in a “material alteration of the legal

relationship of the parties,” 230 F.3d at 929; Buckhannon held

that a plaintiff does not prevail even though its action has caused

the defendant to change its primary conduct, because the

plaintiff does not thereby obtain a “judicially sanctioned change

in the legal relationship of the parties.” Buckhannon, 532 U.S.

at 604-05.

We need not enter the lists in this apparent conflict among

the circuits in order to resolve the instant dispute. Recall the

district court dismissed this action for want of jurisdiction only

after holding not only that the District’s action for declaratory

relief had become moot when the school year ended but also that

the IDEA did not create a right of action against a parent for the

recovery of tuition or other monies the District had expended for

private schooling. The latter ruling was a judgment on the

merits, not a holding that the court lacked jurisdiction; the court

held the District’s claim failed because it was contrary to the

statute.*

*

Although Jeppsen does not argue the district court dismissed

the District’s case on the merits, she does argue that, because the

district court held the District’s claim for reimbursement failed, she

“prevailed” in the district court; we are bound by neither the district

court’s nor the parties’ characterization of the dismissal. Cf. Fund for

Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 n.4 (D.C.

Cir. 2006) (district court’s characterization of dismissal based upon

APA as jurisdictional “of no consequence,” as court of appeals may

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III. Conclusion

Because the dismissal of the District’s case, properly

understood, was a decision on the merits, it raises no doubt

about the district court’s jurisdiction to award attorneys’ fees.

On the merits, even if Buckhannon overruled Noxell, it is clear

Jeppsen has “prevailed” in an “action or proceeding brought

under” § 1415. 20 U.S.C. § 1415(i)(3)(B)(i)(I). Accordingly we

remand the case to the district court in order that it may decide

whether, “in its discretion,” id., to award Jeppsen attorneys’

fees.

So ordered.

affirm “dismissal under Rule 12(b)(1) ... pursuant to Rule 12(b)(6)”).