District of Columbia v. Straus

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2009 Decided January 8, 2010

No. 09-7051

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,

APPELLANT

v.

JOHN A. STRAUS AND JAMES E. BROWN & ASSOCIATES, PLLC,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-02075-RWR)

Carl J. Schifferle, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellant. With him on the briefs were Peter J.

Nickles, Attorney General, Todd S. Kim, Solicitor General,

and Donna M. Murasky, Deputy Solicitor General.

Roxanne D. Neloms argued the cause for appellees. With

her on the brief was Tilman L. Gerald.

Arthur B. Spitzer, Caroline M. Brown, and Roger A. Ford

were on the brief for amicus curiae the American Civil

Liberties Union of the National Capital Area in support of

appellees.

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Before: GINSBURG, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Relying on the fee-shifting

provision contained in the Individuals with Disabilities

Education Act (IDEA), the District of Columbia seeks fees

from a lawyer who, on behalf of a special needs student,

initiated administrative proceedings that were eventually

dismissed as moot. The district court denied an award of fees

on the ground that the District failed to qualify as a

“prevailing party” under the IDEA as defined by the Supreme

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

Virginia Department of Health & Human Resources, 532 U.S.

598 (2001). For the reasons set forth below, we affirm.

I

The IDEA guarantees all children with disabilities a free,

appropriate public education (FAPE). 20 U.S.C. §

1400(d)(1)(A). Of relevance to this case, the IDEA requires

school districts to conduct any evaluations necessary to

develop a child’s individualized education plan (IEP). Id.

§ 1414(a).

In June 2008, the IEP team for D.R., a special needs

student attending the District of Columbia Public Schools

(DCPS), decided it needed a psychiatric evaluation of D.R. to

prepare his IEP for the upcoming school year. DCPS agreed

to complete the evaluation by August 5. When it failed to do

so, D.R.’s family, represented by appellee John Straus, filed

an administrative complaint seeking an order requiring DCPS

to pay for an independent psychiatric evaluation. See 20

U.S.C. § 1415(b)(6)(A) (authorizing parents to file

administrative challenges to “any matter relating to . . .

evaluations”). The parents also sought (1) a declaration that

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the delay in conducting the evaluation denied D.R. a FAPE

and (2) an award of attorney’s fees, see Moore v. District of

Columbia, 907 F.2d 165, 167 (D.C. Cir. 1990) (en banc)

(interpreting the IDEA’s fee-shifting provision to apply in

administrative proceedings as well as civil actions). Five days

later, Dr. Richard Nyankori of the DCPS Chancellor’s office

sent Straus a letter authorizing the independent evaluation.

That same day, the hearing officer held a prehearing

conference. Although Straus knew of the Nyankori letter

authorizing the evaluation, he refused to withdraw the

complaint. Instead, he demanded a hearing, which the

hearing officer held several weeks later. At that hearing,

Straus conceded that the Nyankori letter provided the

substantive relief his client sought, but argued “there should

be something with respect to attorney’s fees” for himself.

Plaintiff’s Renewed Motion for Summary Judgment, Exhibit

D at 11, District of Columbia v. Straus, 607 F. Supp. 2d 180

(D.D.C. 2009) (No. 08-cv-2075).

Three days after the hearing, the officer ruled that the

Nyankori letter “mooted” the controversy and dismissed the

case with prejudice. Plaintiff’s Renewed Motion for

Summary Judgment, Exhibit C at 3, Straus, 607 F. Supp. 2d

180 (“SHO decision”). Neither party challenged that

decision.

Although Straus is no longer pursuing his request for

fees, the District sued him and his law firm in the United

States District Court for the District of Columbia seeking an

award of $1,752.25 to cover the attorney’s fees it claims to

have expended in the administrative hearing. The District

argued that it was entitled to fees under the IDEA’s fee-

shifting provision because it had prevailed in the

administrative proceedings and because Straus “continued to

litigate the complaint after it had clearly become groundless.”

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Appellant’s Br. 3; see also 20 U.S.C. § 1415(i)(3)(B)(i)(II)

(authorizing the award of attorney’s fees when the school

district is the prevailing party and the parents’ attorney

litigated frivolously). The district court disagreed, concluding

that the District does not qualify as a prevailing party because

it “secure[d] a dismissal for mootness . . . by [its] voluntary

conduct.” Straus, 607 F. Supp. 2d at 184. The court therefore

entered summary judgment for Straus. The District appeals,

and our review is de novo, see District of Columbia v.

Jeppsen, 514 F.3d 1287, 1289–90 (D.C. Cir. 2008) (reviewing

a summary judgment determination de novo).

II

In the American legal system, litigants generally bear

their own litigation costs. Congress, however, has enacted a

number of fee-shifting statutes that alter this rule, including

most notably the Civil Rights Attorney’s Fees Awards Act of

1976, 42 U.S.C. § 1988. Buckhannon, 532 U.S. at 602–03

(listing fee-shifting statutes). Such statutes authorize courts to

award fees to the “prevailing party.” See id. at 603. Like

these statutes, the IDEA allows parents who are “prevailing

part[ies]” to recover attorney’s fees incurred in both

administrative and judicial proceedings. 20 U.S.C. §

1415(i)(3)(B)(i)(I); see also Moore, 907 F.2d at 167. Central

to the issue before us, the IDEA also allows school districts to

recover fees if they prevail in litigation brought by parents.

Specifically, subsection II of section 1415(i)(3)(B)(i)

authorizes awards of attorneys’ fees

to a prevailing party who is a State educational

agency or local educational agency against the

attorney of a parent who files a complaint or

subsequent cause of action that is frivolous,

unreasonable, or without foundation, or against

the attorney of a parent who continued to

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litigate after the litigation clearly became

frivolous, unreasonable, or without

foundation[.]

Id. § 1415(i)(3)(B)(i)(II).

As the Supreme Court explained in Buckhannon, “the

term ‘prevailing party’ [is] a legal term of art” that requires

more than achieving the desired outcome; the party seeking

fees must also have “been awarded some relief by the court.”

532 U.S. at 603. In Buckhannon, the Court rejected the so-

called catalyst theory under which some courts had awarded

fees to plaintiffs’ lawyers who secured favorable out-of-court

settlements. According to the Court, such voluntary actions

by defendants “lack[] the necessary judicial imprimatur.” Id.

at 605. Following Buckhannon, we articulated a three-part

test for determining prevailing-party status: (1) there must be

a “court-ordered change in the legal relationship” of the

parties; (2) the judgment must be in favor of the party seeking

the fees; and (3) the judicial pronouncement must be

accompanied by judicial relief. Thomas v. Nat’l Sci. Found.,

330 F.3d 486, 492–93 (D.C. Cir. 2003) (internal quotation

marks and alterations omitted). Although we developed this

test in connection with requests for fees by plaintiffs, we have

applied its latter two requirements to requests by defendants

as well. Jeppsen, 514 F.3d at 1290 (finding that a dismissal

on the merits qualifies the defendant as a prevailing party).

In this case, the second factor is easily satisfied. The

hearing officer’s dismissal of the case was in “favor” of the

District, Thomas, 330 F.3d at 493 (internal quotation marks

omitted), and Straus nowhere argues otherwise. Focusing on

the third factor, the District argues that the hearing officer’s

“pronouncement [was] []accompanied by judicial relief,” id.,

because he “rejected the administrative complaint on its

merits,” Appellant’s Br. 21. In support, the District points out

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that in addition to seeking an evaluation, the complaint asked

for a declaration that D.R. was denied a FAPE. “By pursuing

the litigation,” the District argues, “Straus demanded a

decision on the merits.” Id. at 22. As the District also notes,

the hearing officer found that D.R. “suffered no educational

harm.” SHO decision at 4.

Given the hearing officer’s conclusion that the Nyankori

letter mooted the case, however, the language the District

relies on is dicta. As the hearing officer himself made quite

clear, the “only issue before [him] is DCPS’ alleged failure to

conduct a psychiatric evaluation,” which he concluded “was

mooted by DCPS’ prompt authorization of an independent

evaluation.” SHO decision at 3 (emphasis added). Moreover,

the portion of the hearing officer’s decision the District relies

on begins with a counterfactual subjunctive: “The facts of this

case suggest that even if DCPS had not authorized an

independent evaluation, Petitioner would have faced an uphill

burden of proving” educational harm. Id. (emphasis added).

To be sure, the hearing officer goes on to state that D.R.

“suffered no educational harm.” Id. at 4. Read in context,

however, that sentence represents not a decision on the merits,

but instead the hearing officer’s speculation about what might

have happened had DCPS refused to provide the evaluation.

District of Columbia v. Jeppsen, 514 F.3d 1287 (D.C.

Cir. 2008), does not help the District. That case involved

three separate claims, one of which the district court decided

on the merits in favor of the parents. Given that, we held that

the parents qualified as prevailing parties even though one of

the other claims was dismissed as moot. Jeppsen, 514 F.3d at

1291. Here, by contrast, the hearing officer resolved nothing

on the merits. Although the complaint asked for declaratory

relief as well as for the psychiatric evaluation, the hearing

officer found that the evaluation was the “only issue” in the

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case and, once DCPS provided it, dismissed the case as moot.

SHO decision at 3.

The District argues that it nonetheless qualifies as a

prevailing party because “‘a dismissal with prejudice is

deemed an adjudication on the merits for the purposes of res

judicata.’” Appellant’s Br. 18 (quoting Anthony v. Marion

County General Hosp., 617 F.2d 1164, 1170 (5th Cir. 1980)).

Res judicata effect would certainly qualify as judicial relief

where, for example, it protected the prevailing school district

from having to pay damages or alter its conduct. See, e.g.,

Claiborne v. Wisdom, 414 F.3d 715, 719 (7th Cir. 2005)

(awarding attorney’s fees to the defendant where the plaintiff

voluntarily moved to dismiss the case because she lacked

sufficient evidence after her witnesses recanted); see also

Jeppsen, 514 F.3d at 1290 (hypothesizing that, in certain

circumstances, “[a] ruling on a jurisdictional 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.”). But in

this case, the hearing officer’s dismissal protected the District

from nothing at all because DCPS had already agreed to pay

for the requested evaluation—the only issue then before the

hearing officer. In other words, the District’s favorable

judicial pronouncement was “unaccompanied by judicial

relief.” Thomas, 330 F.3d at 493 (internal quotation marks

omitted). If the District were considered a prevailing party

under these circumstances, then DCPS could ignore its legal

obligations until parents sue, voluntarily comply quickly, file

for and receive a dismissal with prejudice for mootness, and

then recover attorney’s fees from the parents’ lawyers. As

amicus explains, such an outcome would deter lawyers from

taking IDEA cases, “effectively block[ing] the one

enforcement mechanism parents have when an educational

agency drags its heels,” and undermining the IDEA’s very

purpose. Br. of Amicus Curie ACLU 28; see Moore, 907

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F.2d at 166 (finding that the availability of administrative

proceedings and the “‘right to be accompanied and advised by

counsel’” therein help “guarantee that the policy [of the IDEA

to provide FAPEs to children] is faithfully administered”

(quoting 20 U.S.C. § 1415(h)).

The District insists that even if not every involuntary

dismissal with prejudice conveys judicial relief, the one in this

case did because Straus “pressed forward” and was “halted

only by the hearing officer’s decision.” Appellant’s Br. 27,

26. But this argument ignores the language of the IDEA’s

fee-shifting provision. Subsection II allows a school district

that is a “prevailing party” to recover fees “against the

attorney of a parent who continued to litigate after the

litigation clearly became frivolous, unreasonable, or without

foundation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II). Under the

statute, then, the behavior of the parents’ lawyer becomes

relevant only if the school district first qualifies as a

prevailing party. Here, because the District does not qualify

as a prevailing party, it may not recover fees even if Straus

continued to litigate inappropriately. See id.

The District makes one final argument. Even if it is

unable to qualify as a prevailing party under subsection II, it

claims that it may receive fees under a different section of the

IDEA’s fee-shifting provision, namely subsection III, which

authorizes awards

to a prevailing State educational agency or

local educational agency against the attorney

of a parent, or against the parent, if the parent’s

complaint or subsequent cause of action was

presented for any improper purpose, such as to

harass, to cause unnecessary delay, or to

needlessly increase the cost of litigation.

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20 U.S.C. § 1415(i)(3)(B)(i)(III). According to the District,

subsection III’s use of the term “prevailing” in lieu of

subsection II’s “prevailing party” signals that Buckhannon’s

definition of “prevailing party” does not apply to subsection

III. In support, the District points out that although subsection

II is based on section 1988, the general civil rights attorney’s

fees statute, subsection III mirrors Federal Rule of Civil

Procedure 11, which authorizes courts to sanction attorneys

who submit pleadings or other filings “for any improper

purpose.” Freed from the constraints of Buckhannon, the

argument goes, “prevailing” in subsection III simply means

the winning side—in this case, the District.

According to Straus, however, the District forfeited this

argument by failing to raise it in the district court. See Adams

v. Rice, 531 F.3d 936, 945 (D.C. Cir. 2008) (holding that a

party forfeits for appeal arguments not raised before the

district court). We agree. The District’s complaint sought

relief only under subsection II, and although the District did

argue in its motions for summary judgment that Straus acted

with an “improper purpose” as required by subsection III, it

never claimed, as it does here, that the word prevailing in

subsection III means something different from prevailing

party as defined by Buckhannon.

The District claims that Straus “forfeited any contention

that the District’s argument is forfeited” because his brief

never “explicitly suggest[s]” that the District’s argument was

“improper[].” Reply Br. 12. But in the case the District cites

in support, Fox v. District of Columbia, 83 F.3d 1491, 1495–

96 (D.C. Cir. 1996), the party in Straus’s position made no

mention at all of the forfeited argument. By contrast, Straus’s

brief points out the obvious—that the District “failed to plead

this argument in its original complaint or any of its papers

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filed in the District Court”—and then states that he “will

nonetheless address it in the first instance.” Appellees’ Br.

26. Read most naturally, these statements indicate that Straus

believed that although he was under no obligation to respond

to the District’s new argument because the District had

forfeited the point, he would “nonetheless” address it. True,

Straus never said in so many words that the District forfeited

the argument, but the District identifies no case, nor are we

aware of one, requiring a party to invoke the magic word

“forfeit.” The District failed to make its argument in the

district court, and Straus raised the point. Our cases require

nothing more.

III

The judgment of the district court is affirmed.

So ordered.