McAllister v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 10, 2015 Decided July 14, 2015

No. 14-7106

JOSEPHINE MCALLISTER, ET AL.,

APPELLANTS

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-02173)

Douglas W. Tyrka argued the cause and filed the briefs for

appellants.

Richard S. Love, Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellee. With him on the brief were

Karl A. Racine, Attorney General, Todd S. Kim, Solicitor

General, and Loren L. AliKhan, Deputy Solicitor General.

Before: TATEL and GRIFFITH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

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TATEL, Circuit Judge: The Individuals with Disabilities

Education Act (IDEA) authorizes courts to award “reasonable

attorneys’ fees as part of the costs” to plaintiffs who prevail in

actions brought under the Act. In these consolidated cases,

after prevailing on their IDEA claims, plaintiffs sought

attorneys’ fees, including fees for work performed by a special

education expert employed by their attorney. Concluding that

work performed by experts is noncompensable under IDEA,

the district court denied the motion. For the reasons set forth in

this opinion, we affirm.

I.

Enacted “to ensure that the rights of children with

disabilities and parents of such children are protected,” 20

U.S.C. § 1400(d)(1)(B), IDEA requires that, in exchange for

federal funding, states and the District of Columbia “establish

policies and procedures to ensure . . . that free appropriate

public education, or FAPE, is available to disabled children,”

Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518

(D.C. Cir. 2005) (internal quotation marks omitted). Parents

who believe a school district has failed to comply with IDEA’s

requirements may sue in state or federal court. Id. at 520–21

(citing 20 U.S.C. § 1415(i)(2)(A)). Should the parents prevail,

the court “may award reasonable attorneys’ fees as part of the

costs.” 20 U.S.C. § 1415(i)(3)(B).

Plaintiffs in these consolidated cases—parents of children

with special needs in the District of Columbia Public Schools

(DCPS)—brought suit against the school system, alleging

various IDEA violations. After prevailing on all claims,

plaintiffs sought some $386,000 in attorneys’ fees for work

performed by their law firm, Tyrka & Associates. The district

court disallowed more than fifty percent of the requested fees,

including $23,757 for work performed by Sharon Millis, whom

Tyrka identified as a paralegal. The district court, relying on

Millis’s own description of her professional role, as well as its

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finding in a prior case classifying Millis as an expert,

concluded that Millis had performed as an expert, not a

paralegal, and that fees for her work were therefore

nonrecoverable as part of “reasonable attorneys’ fees.”

McAllister v. District of Columbia, 21 F. Supp. 3d 94, 99, 104

(D.D.C. 2014). The court ultimately awarded plaintiffs

$159,133 in attorneys’ fees.

Plaintiffs now appeal, challenging only the district court’s

denial of fees for Sharon Millis’s work. We “review[] the

district court’s denial of . . . attorneys’ fees for abuse of

discretion,” but we “examine de novo whether the district court

applied the correct legal standard.” Conservation Force v.

Salazar, 699 F.3d 538, 542 (D.C. Cir. 2012) (internal quotation

marks and citations omitted).

II.

Although “[o]ur legal system generally requires each party

to bear his own litigation expenses,” Congress, in many civil

rights statutes such as IDEA, “has authorized courts to deviate

from this background rule . . . by shifting fees from one party

to another.” Fox v. Vice, 131 S. Ct. 2205, 2213 (2011). In order

to “reimburse[] . . . plaintiff[s] for what it cost . . . to vindicate

civil rights,” such statutes permit courts to reimburse plaintiffs

for their attorneys’ fees and costs. Id. (internal quotation marks

and alterations omitted); see also City of Burlington v. Dague,

505 U.S. 557, 562 (1992) (listing federal fee-shifting

provisions).

This case requires us to determine precisely which

expenses are recoverable as “reasonable attorneys’ fees as part

of the costs,” 20 U.S.C. § 1415(i)(3)(B), under IDEA’s

fee-shifting provision. Three Supreme Court decisions guide

our analysis.

In Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989),

the Court considered a request for reimbursement of paralegal

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fees pursuant to 42 U.S.C. § 1988, which, like IDEA,

authorizes recovery of “a reasonable attorney’s fee as part of

the costs.” The Court found it “[c]lear[]” that “‘reasonable

attorney’s fee’ cannot have been meant to compensate only

work performed personally by members of the bar,” but instead

“refer[s] to a reasonable fee for the work product of an

attorney.” Jenkins, 491 U.S. at 285. The Court thus broadly

interpreted “reasonable attorney’s fee” to require

compensation for the work of paralegals, law clerks, and all

“others whose labor contributes to the work product for which

an attorney bills her client.” Id.

Just three years later in West Virginia University Hospitals

v. Casey, 499 U.S. 83, 92 (1991), the Court clarified that this

broad interpretation of section 1988 does not extend to expert

fees, which have historically been “regarded not as a subset of

attorney’s fees, but as a distinct category of litigation expense.”

In Casey, a statutory and constitutional challenge to Medicaid

reimbursement schedules, plaintiff’s counsel “employed

Coopers & Lybrand, a national accounting firm, and three

doctors specializing in hospital finance to assist in the

preparation of the lawsuit and to testify at trial.” Id. at 85.

Despite the district court’s unchallenged finding that these

services were “essential to presentation of the case,” id., the

Court concluded that “a reasonable attorney’s fee” does not

“embrac[e] fees for experts’ services,” id. at 97 (internal

quotation marks omitted).

Most recently, in Arlington Central School District Board

of Education v. Murphy, 548 U.S. 291 (2006), the Court for the

first time examined IDEA’s attorneys’ fees provision.

Although the language of that provision is “virtually identical”

to section 1988, the statute at issue in both Jenkins and Casey,

the Court explained that analysis of IDEA’s fee-shifting

provision must take account of the fact that unlike section

1988, which Congress passed as an exercise of its Fourteenth

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Amendment enforcement authority, Congress enacted IDEA

pursuant to the Spending Clause. Id. at 302, 295. “[L]egislation

enacted pursuant to the spending power,” the Court explained,

“is much in the nature of a contract” whereby “in return for

federal funds, the States agree to comply with federally

imposed conditions.” Pennhurst State School & Hospital v.

Halderman, 451 U.S. 1, 17 (1981). As the Court recognized,

“[t]he legitimacy of Congress’ power to legislate under the

spending power thus rests on whether the State voluntarily and

knowingly accepts the terms of the ‘contract.’” Id. (emphasis

added). Accordingly, given that IDEA conditions federal

funding “upon a State’s compliance with extensive goals and

procedures,” the Court explained, we must examine the

propriety of requested attorneys’ fees “from the perspective of

a state official who is engaged in the process of deciding

whether the State should accept IDEA funds and the

obligations that go with those funds.” Murphy, 548 U.S. at

295–96 (internal quotation marks and citations omitted). In this

sense, the Court’s analysis in Murphy differed significantly

from that in Jenkins and Casey. Jenkins and Casey presented

the question whether in enacting section 1988, Congress had

intended to include paralegals (Jenkins) or expert witnesses

(Casey) within the phrase “reasonable attorney’s fee as part of

the costs.” The question in Murphy was not only one of

congressional intent, but also whether state officials deciding

whether to accept IDEA funds “would clearly understand that

one of the obligations of the Act is the obligation to

compensate prevailing parents for expert fees.” Id.

In Murphy, the parents had, without ever retaining an

attorney, hired their own expert to assist in preparing their case

and sought recovery for those fees. Rejecting the parents’

argument that they could recover the expert’s fees as

“reasonable attorneys’ fees as part of the of costs,” the Court

explained that nothing in IDEA “even hint[s] that acceptance

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of IDEA funds makes a State responsible for reimbursing

prevailing parents for services rendered by experts.” Id. at 297.

In this case, plaintiffs argue that Murphy is irrelevant

because “Millis was not an independent consultant” or expert.

Pls.’ Br. 7. Instead, plaintiffs contend, Millis’s work is

compensable under Jenkins because her “professional

role . . . perfectly meets the ABA definition of a paralegal/legal

assistant” as “a person, qualified by education, training or work

experience who is employed or retained by a lawyer . . . who

performs specifically delegated substantive legal work for

which a lawyer is responsible.” Pls.’ Br. 7 (emphasis added).

To be sure, paralegal costs may be recoverable under

IDEA. After all, given that the Court announced its holding in

Jenkins—that section 1988 “clearly” authorizes recovery of

fees for paralegals—before Congress enacted IDEA, and given

that IDEA uses the same language as section 1988, public

officials signing up for IDEA funds were on notice that

prevailing plaintiffs could recover paralegal costs. But we need

not definitively resolve that question because even if the ABA

standard is the controlling definition of “paralegal,” plaintiffs

have failed to show that the district court abused its discretion

in concluding that Sharon Millis did not perform “substantive

legal work.” Pls.’ Br. 7 (emphasis added); see also Role

Models America, Inc. v. Brownlee, 353 F.3d 962, 970, 974

(D.C. Cir. 2004) (plaintiffs seeking attorneys’ fees have “the

burden of establishing the reasonableness of [their] fee

request” and producing supporting documentation containing

“adequate detail [to] show that [an attorney’s] employees

performed suitable tasks.”).

To begin with, in her own résumé, Millis describes herself

as an “Independent Special Education Advocate/Expert for

Special Education Attorneys/Courts/Parents,” and lists “core

competencies” in, among other things, expert testimony

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regarding special education, special education curriculum

development, and analysis of therapeutic models for special

needs students. Nowhere does the résumé say anything about

legal training or paralegal experience.

The affidavit submitted by firm founder Douglas Tyrka is

consistent with Millis’s résumé. Although Tyrka describes

every other firm employee as “a fully trained paralegal” trained

by “paralegals and attorneys of the firm,” he calls Millis a

special education professional with forty years of experience.

Douglas Tyrka Aff. ¶¶ 5–9, July 23, 2013. To be sure, the

affidavit also says that Millis “performed all of her work under

the supervision of the firm’s attorneys” and that she “trained

[Tyrka] in the practice of special education law in the District

of Columbia.” Id. ¶ 6. But neither of these statements

demonstrates that Millis herself actually engaged in the kind of

substantive legal work normally undertaken by paralegals.

Equally significant, the billing records reflect a dramatic

difference between Millis’s work and that of the “fully trained

paralegals.” The paralegals all engaged in traditional paralegal

activities, e.g., making phone calls, maintaining files, and

preparing correspondence, whereas Millis’s work involved

substantive special education tasks, e.g., reviewing

neuropsychological and auditory processing reports,

participating in multidisciplinary team meetings, and testifying

at due process hearings. Tyrka & Associates Billing Records

1–73.

All of this—Millis’s résumé, Tyrka’s affidavit, and the

billing records—demonstrates that the district court did not

abuse its discretion in concluding that Millis is what she says

she is: a highly experienced special education consultant and

expert.

At oral argument, plaintiffs’ counsel insisted that the cost

of Millis’s work is nonetheless recoverable under Jenkins

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because in the field of special education highly specialized

paralegals perform precisely the kind of substantive tasks

undertaken by Millis—work that would otherwise be

performed by attorneys. But “[b]ecause this argument was

raised for the first time at oral argument, it is forfeited.” United

States v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007). In

any event, nothing in the record supports Tyrka’s contention

that Millis’s work is the type of work that paralegals now

perform in the field of special education. And especially

important in light of Murphy, plaintiffs have provided no

evidence that public officials signing up for IDEA funds

“would clearly understand that one of the obligations of the Act

is the obligation to compensate prevailing parents” for

“paralegals” like Millis. Murphy, 548 U.S. at 296.

Plaintiffs next contend that even if Millis performed as an

expert instead of a paralegal, Murphy still does not bar

recovery for two separate reasons. First, according to plaintiffs,

Murphy dealt only with the question whether the “cost of an

independent, non-lawyer consultant was . . . reimbursable as a

litigation ‘cost,’” and thus “has very little to do” with a case

such as this where a lawyer retained Millis and billed her time

as part of attorneys’ fees. Pls.’ Br. 7. Essentially, plaintiffs

argue that Murphy deals only with costs, and that because

IDEA mentions both costs and attorneys’ fees, the decision has

no applicability where, as here, plaintiffs seek to recover the

cost of an expert as part of attorneys’ fees. In Murphy,

however, the Supreme Court expressly rejected this argument,

holding that IDEA “does not say that a court may award ‘costs’

to prevailing parents; rather, it says that a court may award

reasonable attorneys’ fees ‘as part of the costs.’” Murphy, 548

U.S. at 297 (emphasis added). “This language,” the Court

observed, “simply adds reasonable attorney’s fees to the list of

costs that prevailing parents are otherwise entitled to recover.”

Id. And having rejected the argument in Casey that an award of

“a reasonable attorney’s fee as part of the costs” includes

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expert fees, the Court in Murphy concluded that it could not

“hold that the relevant language in the IDEA unambiguously

means exactly the opposite of what the nearly identical

language . . . was held to mean in Casey.” Id. at 302. Read

together, Murphy and Casey thus foreclose recovery of expert

fees entirely.

Second, plaintiffs argue that Millis’s work is compensable

because “[u]nlike the Murphy plaintiffs, [they] did not retain

Ms. Millis separately,” but instead she “was employed by [a

law firm], where she worked directly under lawyer

supervision.” Pls.’ Br. 7. Again, plaintiffs ignore what Murphy

requires: Whether independently employed by plaintiffs

(Murphy) or hired by a law firm (this case), plaintiffs must

demonstrate that “IDEA gives [states] unambiguous notice

regarding liability for expert fees.” Murphy, 548 U.S. at 301.

Neither in the district court nor here have plaintiffs even

attempted to satisfy that requirement.

III.

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.