T.D. v. LaGrange School 102

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3928

T.D.,

Plaintiff-Appellee,

v.

LAGRANGE SCHOOL DISTRICT NO. 102,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 2071—James B. Zagel, Judge.

____________

ARGUED MAY 20, 2003—DECIDED NOVEMBER 14, 2003

____________

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit

Judges.

KANNE, Circuit Judge. Congress enacted the Individuals

With Disabilities Education Act (“IDEA”) with the primary

purpose of ensuring that a “free appropriate public educa-

tion” is available to all children with disabilities. 20 U.S.C.

§ 1400(d)(1)(A) (2003). To facilitate this goal, the IDEA

requires schools to have in place procedures that allow

parents to make complaints regarding “any matter relating

to the identification, evaluation, or educational placement

of the child, or the provision of a free appropriate public

education” to their child. Id. § 1415(b)(6). If the parents’

concerns cannot be satisfactorily resolved through in-

formal channels, the IDEA provides parents a right to me-

2 No. 02-3928

diation or an impartial due process hearing conducted by

the appropriate state educational agency. Id. § 1415(e)(1),

(f)(1). If parents are still unsatisfied following a due process

hearing, they may then bring a civil action in federal or

state court. Id. § 1415(i)(2)(A). To ease the financial burden

on parents making claims, the IDEA contains a fee-shifting

provision that allows attorney’s fees to the parents of a

child with a disability who are the “prevailing party” in any

action or proceeding brought under the IDEA. Id. §

1415(i)(3)(B).

In this appeal we address whether the plaintiff, T.D., is

a prevailing party under this fee-shifting provision and

whether T.D. is thereby eligible for attorney’s fees.1 The

district court, finding that the Supreme Court’s recent de-

cision in Buckhannon Bd. & Care Home v. W. Va. Dep’t of

Health & Human Res., 532 U.S. 598 (2001), did not apply to

the IDEA, held that T.D. was entitled to attorney’s fees. We

hold that Buckhannon does apply to the IDEA, but find that

T.D. is still entitled to a portion of his attorney’s fees. We

also find that the district court erred in finding that T.D.

was entitled to receive reimbursement under the IDEA for

his expert witness fees.

I. History

A. Background

T.D., born June 24, 1991, is a strong-willed child, who

was diagnosed with Attention Deficit Hyperactivity Dis-

order at an early age. His parents enrolled him in private

pre-schools and elementary schools through the early part

of 1997. On February 4, 1997, during T.D.’s kindergarten

1

For simplicity we refer to T.D.’s eligibility for attorney’s fees,

recognizing that any award of fees would be made to his parents.

See 20 U.S.C. § 1415(i)(3)(B) (2003).

No. 02-3928 3

year, he was dismissed from a parochial school after the

school determined that it did not have the special-education

resources needed to properly educate him. The parochial

school offered to refer T.D. to the local public school for

services, but at that time his parents refused to allow the

parochial school to make the referral.

A week after T.D. was dismissed from the parochial

school, his parents took him to the University of Chicago’s

Hyperactivity, Attention, and Learning Problems Clinic for

an independent evaluation. That evaluation recommended,

inter alia, that T.D. attend a school with a low teacher:

student ratio and noted that the best setting for T.D. would

likely be a private, therapeutic day school.

In March and April of 1997, T.D.’s mother spoke at

various times with the public school district’s Director of

Special Ed, Mary Ann Cusick. During these conversations,

T.D’s. mother sought information about the school district’s

special-education programs and apparently expressed some

reluctance to enroll T.D. in the school district, based on

T.D.’s older brother’s experience there. At some point

during this period, T.D.’s mother visited the local public

school that T.D. would attend. During this visit, she met

with the principal and the kindergarten teacher, and the

school provided her with further information about the

special-education services that would be available to T.D.

within the context of the regular classroom setting. At no

point during March or April of 1997, did the school district

request written consent to conduct a case-study evaluation

of T.D. to determine his potential eligibility for various

special-education programs.

In September 1997, T.D.’s parents enrolled him in the

first grade at Acacia Academy, a private therapeutic day

school. Acacia, however, would only allow T.D. to attend

full-time if his parents hired a one-on-one aide to accom-

4 No. 02-3928

pany him. After a short period of attending only part-time,

T.D.’s parents hired an aide and thereafter T.D. attended

full-time.

B. Due Process Administrative Proceedings

On August 25, 1997, approximately five months after

T.D.’s mother first contacted the public school district offi-

cials, T.D.’s parents requested, through their attorney, a

due process hearing before a state administrative hearing

officer as provided for by § 1415(f) of the IDEA. In their

hearing request, T.D.’s parents alleged that the school dis-

trict had (i) “fail[ed] to evaluate T.D. despite actual notice

that he may require special-education services;” (ii) “fail[ed]

to notify” them that the school district “had decided not to

conduct a case study evaluation;” (iii) “fail[ed] to consider

their independent evaluation;” and (iv) “fail[ed] to appropri-

ately advise them of the placement options for T.D. within

the public school setting” other than “full inclusion place-

ments, in a regular classroom setting.” T.D.’s parents

claimed that as a result of these failures the school district

had denied T.D. the “free, appropriate public education”

guaranteed by the IDEA.

Part of the relief requested by T.D.’s parents was that the

school conduct an evaluation to determine T.D.’s eligibility

under the IDEA for special-education services. On October

15, 1997, the hearing officer conducted a pre-hearing

conference on this issue, after which the hearing officer

determined that a case-study evaluation was necessary and

ordered the school to conduct the evaluation. Following this

order, on November 20, 1997, the school conducted the

evaluation and convened an Individualized Education

Program (“IEP”) conference, as required by the IDEA

§ 1414. As a result of the evaluation and conference, T.D.

was determined to have an “Emotional/Behavioral Disor-

der” and a “Speech and/or Language Impairment,” and was

No. 02-3928 5

found eligible for special-education services from the school

district. The school district recommended that T.D. be

placed at the local public school in a regular-education

classroom, with supplemental special-education services to

address T.D.’s special needs. T.D.’s parents rejected the

recommended placement.

The administrative due process hearing commenced on

December 5, 1997. The parents sought: (i) reimbursement

for their placement of T.D. at Acacia for the 1997-1998

academic year; (ii) reimbursement for the one-on-one aide

to assist T.D. at the private school; (iii) reimbursement for

T.D.’s transportation to and from Acacia; and (iv) reim-

bursement for the independent evaluation they had ob-

tained from the University of Chicago.

In a ruling rendered on December 10, 1997, the hearing

officer made findings that as of the last week of March

1997, the school district knew that T.D. might require

special-education services and should have requested the

parent’s written consent to conduct a case-study evaluation

of T.D. at that time. Further, pursuant to the case study,

the school should have identified the student’s needs and

formulated program and service options. It was not until

the hearing officer ordered the evaluation that these things

were accomplished. The hearing officer found that the

school district’s failings contributed to the parents need to

place T.D. in the private school and to obtain a one-on-one

aide. Therefore, the hearing officer ordered the school

district to reimburse T.D.’s parents for their out-of-pocket

costs for the one-on-one aide, a cost of about $1130 per

month and for the costs of transportation to the school, a

cost of about $5 per ride, from September 17 until the

school district could provide the appropriate services. As to

T.D.’s educational placement, however, the hearing officer

found that the private school in which T.D. was enrolled

could not adequately meet his needs. Therefore, he denied

reimbursement for the private school tuition, and he

6 No. 02-3928

ordered that T.D. be transferred to a regular mainstream

classroom at the local public school with supplemental

special-education services.

C. District Court Proceedings and Settlement

T.D. appealed to federal district court, seeking reversal of

the proposed placement in a regular classroom, asking

instead for continued placement at the private day school.

Further, he sought reimbursement of the tuition already

paid by his parents for the day school. He also asked for the

relief already granted by the hearing officer, namely the

reimbursement of the one-on-one aide cost and transporta-

tion costs. Finally, he sought attorney’s fees and costs.

Both parties moved for summary judgment, but before the

district court ruled, the parties settled. The settlement

agreement provided that T.D. would be placed in a self-

contained behavior disordered program (as opposed to a

regular classroom) in a public school. The school district

agreed to reimburse T.D.’s parents for tuition and all costs

in any way resulting from or relating to T.D.’s attendance

at the private day school, a total of $52,000. The parties did

not reach an agreement regarding attorney’s fees, specifi-

cally leaving the issue for decision by the district court.

The district court rendered its decision on attorney’s fees

on October 7, 2002, holding that T.D. was a “prevailing

party” and therefore was entitled to attorney’s fees under

the IDEA’s fee-shifting provision. In finding that T.D. was

a prevailing party, the district court noted that he had

succeeded on a significant issue when he obtained the case-

study evaluation, which determined that he was eligible for

special-education services. The court went on to state:

[I]rrespective of how much Parents prevailed in the

hearing or in my Court, I find that Parents obtained

No. 02-3928 7

through settlement the balance of what they desired

and TD needed. TD’s placement in a self-contained be-

havior disordered classroom in a public school is the

direct result of Parent’s litigation on the issue of TD’s

placement and the settlement represents a significant

departure from La Grange’s proposal to educate TD in

a regular mainstream classroom with a one-on-one aide.

Importantly, the district court held that the Supreme

Court’s recent decision in Buckhannon did not apply to the

IDEA. The district court expressly stated that it was not

deciding whether attorney’s fees would be appropriate un-

der the strictures of Buckhannon.

The district court awarded T.D. $117,135.53 in attorney’s

fees and costs. The school district now appeals that deci-

sion.

II. Analysis

A. Buckhannon and the IDEA

The IDEA, like many other federal statutes, provides that

courts may award attorney’s fees to a “prevailing party”:

In any action or proceeding brought under this section,

the court, in its discretion, may award reasonable

attorneys’ fees as part of the costs to the parents of a

child with a disability who is the prevailing party.

20 U.S.C. § 1415(i)(3)(B) (2003). In Buckhannon, the

Supreme Court limited the meaning of the term “prevailing

party,” by rejecting the catalyst theory as a method of

attaining prevailing-party status under the Americans With

Disabilities Act (“ADA”) and Fair Housing Amendments Act

(“FHAA”). 532 U.S. at 605. Under the catalyst theory, which

had been accepted by many courts before Buckhannon, a

plaintiff could prevail, if the plaintiff’s suit was a catalyst

8 No. 02-3928

that prompted the change that the plaintiff sought.

Buckhannon, however, held that a party could not be a

prevailing party without receiving some sort of “judicial

imprimatur” on the charge. Id. at 605. Central to the

Court’s conclusion was its finding that the term “prevailing

party” was “a legal term of art,” which signified that the

party that had been granted relief by a court. Id. at 603. As

examples of the type of relief necessary to attain “prevailing

party” status, the court cited a judgment on the merits and

a consent decree. Id. at 604.

The school district argues that since this case was ulti-

mately resolved through a private settlement, without a

judicial imprimatur, T.D. does not qualify as a “prevailing

party” under the Supreme Court’s explanation of that term

in Buckhannon. T.D. counters that Buckhannon’s rules are

inapplicable to the IDEA. Therefore, the threshold issue in

this case is whether Buckhannon’s limitations on the

meaning of the term “prevailing party” apply.

Although Buckhannon involved only claims under the

“prevailing party” fee-shifting provisions of the ADA and

FHAA,2 there is little doubt that the Buckhannon Court

intended its interpretation of the term “prevailing party” to

have broad effect upon similar fee-shifting statutes. The

Court observed that Congress has passed many statutes

that authorize courts to award attorney’s fees to the

“prevailing party,” such as 42 U.S.C. § 1988, and that the

Court has interpreted those fee-shifting provisions consis-

tently across the federal statutes. Buckhannon, 532 U.S. at

2

In relevant part the ADA provides: “The court . . ., in its dis-

cretion, may allow the prevailing party . . . a reasonable attorney’s

fee.” 42 U.S.C. § 12205 (2003). And the FHAA provides: “The

court, in its discretion, may allow the prevailing party . . . a rea-

sonable attorney’s fee and costs.” 42 U.S.C. § 3613(c)(2) (2003).

No. 02-3928 9

602-03 & n.4 (citing Hensley v. Eckerhart, 461 U.S. 424,

433, n.7 (1983), which held that the standards used in

interpreting the term “prevailing party” are “generally

applicable in all cases in which Congress has authorized an

award of fees to a ‘prevailing party.’ ”). Moreover, as noted

above, the Court described the term “prevailing party” as a

“legal term of art,” with the relatively fixed and accepted

meaning of “a party in whose favor a judgment is rendered.”

Id. at 603 (citing BLACK’S LEGAL DICTIONARY 1145 (7th ed.

1999)). Therefore, one would conclude that if a statute con-

tains this legal term of art that has been interpreted con-

sistently across statutes, we should exercise great caution

before we give that term a different meaning. See Me. Sch.

Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 14 (1st

Cir. 2003) (“Because [the IDEA] employs the phrase ‘pre-

vailing party’—a term of art—it must be interpreted and

applied in the same manner as other federal fee-shifting

statutes that use the same phraseology.”).

Given these considerations, at least one circuit has in-

terpreted Buckhannon as applying to all “prevailing party”

fee-shifting statutes. See Smyth v. Rivero, 282 F.3d 268, 274

(4th Cir. 2002) (holding that Buckhannon applies to 42

U.S.C. § 1988 and stating “[t]he term ‘prevailing party,’ as

used in § 1988(b) and other fee-shifting provisions, is a

‘legal term of art,’ and is interpreted consistently—that is,

without distinctions based on the particular statutory con-

text in which it appears.”) (quotations and citations omit-

ted). While there is some appeal to the simplicity of this

position, this Court has not yet gone that far. Rather, we

have left open the possibility that if the “text, structure, or

legislative history” of a particular fee-shifting statute

indicate that the term “prevailing party” in that statute is

not meant to have its usual meaning—as defined in

Buckhannon—then Buckhannon’s strictures may not apply.

10 No. 02-3928

We reiterate, however, that because “prevailing party” is

a legal term of art that is interpreted consistently across

fee-shifting statutes, there is a strong presumption that

Buckhannon applies to each fee-shifting statute that

awards fees to “prevailing parties.” Consequently, for this

Court to find that Buckhannon does not apply to the IDEA,

a “prevailing party” fee-shifting statute, the “text, structure,

or legislative history” would have to clearly indicate that in

the IDEA, Congress did not intend to use the term “prevail-

ing party” in its traditional “term of art” sense.

The district court below held that the text of the IDEA set

it apart from other statutes. We acknowledge that the

IDEA’s text and structure is somewhat more complex than

other “prevailing party” fee-shifting statutes because the

IDEA not only states that attorney’s fees are available to

“prevailing parties,” but it also contains limiting provisions

in §§ 1415(i)(3)(D)-(G), which specify certain situations

where attorney’s fees are unavailable or must be reduced.

For instance, § 1415(i)(3)(D)(i) provides that a party may

not receive attorney’s fees incurred subsequent to a set-

tlement offer if the court or hearing officer determines that

the relief finally obtained by the plaintiff is not more fa-

vorable than the settlement offer. Section 1415(i)(3)(D)(ii)

provides in relevant part that attorney’s fees may not be

awarded (at the discretion of the state) for work done in

mediation conducted before the filing of a formal request for

a hearing. And § 1415(i)(3)(F)-(G) instructs district courts

to reduce an attorney’s fee award when the plaintiff has

“unreasonably protracted the final resolution of the contro-

versy.”

T.D. argues that these provisions create an implication

that Congress intended the term “prevailing party” as used

in the IDEA to include more than just parties that obtain

judicially sanctioned relief. The arguments are quite

strained, however, as none of these provisions clearly indi-

cate a Congressional intent about anything related to the

No. 02-3928 11

“prevailing party” requirement. John T. v. Del. County

Intermediate Unit, 318 F.3d 345, 557 (3d Cir. 2003).

“Rather, §§ 1415(i)(3)(D) through (G) define situations in

which attorney’s fees may be prohibited or reduced” even for

“prevailing parties.” Id. For instance, if a plaintiff rejects a

settlement offer and eventually receives a judicially sanc-

tioned victory that is less beneficial than the settlement

offer was, the plaintiff, though being a “prevailing party,”

may not get the fees incurred after the settlement offer. 20

U.S.C. § 1415(i)(3)(D)(i). Or, as § 1415(i)(3)(D)(ii) provides,

if a party pursues an unsuccessful mediation and eventu-

ally obtains a victory with judicial imprimatur, then he may

receive attorney’s fees for the unsuccessful mediation if it

occurred after the filing of a complaint. Or, if a plaintiff who

eventually obtains judicially sanctioned success unreason-

ably protracted the resolution of the case, the court may

reduce the attorney’s fee award to account for the unreason-

able delay. Id. § 1415(i)(3)(G).

The bottom line is that these limiting provisions do not

clearly indicate that the term “prevailing party” was

intended to encompass anything more in the IDEA than

in any of the other “prevailing party” fee-shifting statutes.

In fact, these provisions do not inform anything about the

meaning of the term “prevailing party” in the IDEA because

they are relevant only after a plaintiff has been deemed a

“prevailing party.”

We turn next to the legislative history. As both the

Second and Third Circuits have recognized, the legislative

history of the IDEA seems to indicate that Congress did not

intend the IDEA to be interpreted any differently from

other prevailing party fee-shifting statutes. See John T.,

318 F.3d at 557; J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119,

124 (2d Cir. 2002). When Congress added the fee-shifting

provision to the IDEA’s predecessor statute, the Education

of the Handicapped Act, the Senate Committee on Labor

and Human Resources provided that “it is the committee’s

12 No. 02-3928

intent that the terms ‘prevailing party’ and ‘reasonable’

be construed consistently with the U.S. Supreme Court’s de-

cision in Hensley v. Eckerhart,” which involved 42 U.S.C. §

1988. S. Rep. No. 99-112, at 13 (1986), reprinted in 1986

U.S.C.C.A.N. 1798, 1803 (footnote omitted). We have fol-

lowed this principle by interpreting the IDEA consistently

with § 1988. See, e.g., Bd. of Educ. v. Steven L., 89 F.3d 464,

468 (7th Cir. 1996) (“ ‘Prevailing party’ has the same

meaning under 20 U.S.C. § 1415(e) as 42 U.S.C. § 1988.”).

And importantly, Buckhannon made clear that its strictures

applied to § 1988. See, e.g., J.C., 278 F.3d at 124. From the

legislative history then, it appears that Buckhannon should

be applied to the IDEA.

In addition to the textual and legislative history argu-

ments, T.D. makes essentially two policy arguments, which

he claims show that Buckhannon should not be applied to

the IDEA. We approach these arguments with caution

because the Buckhannon Court itself, in analyzing the

policy arguments made in that case, stated: “Given the clear

meaning of ‘prevailing party’ in the fee-shifting statutes we

need not determine which way these various policy argu-

ments cut.” 532 U.S. at 610. Consequently, it is not clear

that the Supreme Court has left any room for this Court or

any other “to interpret anew the term ‘prevailing party’ in

light of the IDEA policies.” John T., 318 F.3d at 558.

T.D. contends that the statute is designed to facilitate

early, informal resolution of controversies between schools

and students. According to T.D., this is an important goal

of the IDEA because delay in finding an appropriate school

setting can be detrimental to a child’s development. T.D.

maintains that this goal would be undermined if we found

that private settlements do not entitle plaintiffs to attor-

ney’s fees because parents and attorneys would have an

incentive to reject settlement offers and thereby delay the

final resolution of the proceedings.

No. 02-3928 13

We recognize the importance and benefit of quick resol-

ution to any litigation; particularly, litigation that involves

the educational placement of a child. But many of the same

factors that make quick resolution through settlement

beneficial under the IDEA apply to the statutes that were

at issue in Buckhannon as well. For instance, there are

surely strong policy reasons for quickly resolving a disabled

person’s claims under the ADA. Nonetheless, Buckhannon

held that ADA plaintiffs may receive attorney’s fees only

upon receipt of some judicially sanctioned victory. In other

words, Buckhannon simply has closed the door on this

argument. John T., 318 F.3d at 557; J.C., 278 F.3d 124.

Moreover, in response to the same policy argument that

T.D. makes here—that settlement is to be encouraged

under the IDEA and therefore we should allow attorney’s

fees for settlement—the Second Circuit noted:

[I]t is difficult to reconcile [the] policy argument for

awarding fees pursuant to informal settlements with

the fact that, even before Buckhannon, Congress delib-

erately chose not to allow the recovery of attorneys’ fees

for participation in IEP proceedings that were not

convened as a result of an administrative proceeding or

judicial action. 20 U.S.C. § 1415(i)(3)(D)(ii). The IEP

Team is a mechanism for compromise and cooperation

rather than adversarial confrontation. This atmosphere

would be jeopardized if we were to encourage the

participation of counsel in the IEP process by awarding

attorneys’ fees for settlements achieved at that stage.

J.C., 278 F.3d at 124-25.

T.D.’s second policy argument centers around the stated

purpose of the IDEA “to ensure that all children with dis-

abilities have available to them a free appropriate public

education . . . to meet their unique needs.” 20 U.S.C.

§ 1400(d)(1)(A). T.D. contends that if the IDEA’s “prevailing

14 No. 02-3928

party” provision is interpreted to preclude the award of fees

to parties that settle, then students who must hire an

attorney and whose claims are ultimately resolved through

private settlement will be denied the free appropriate

education promised by the IDEA because they will be

saddled with large legal fees.

While this is probably T.D.’s strongest argument, we are

still not persuaded. We note that the IDEA only guarantees

the right to a free education; it does not explicitly guarantee

the right to attorney’s fees incurred in pursuit of that

education. Cf. Edie F. v. River Falls Sch. Dist., 243 F.3d

329, 336 (7th Cir. 2001) (“Clearly . . . parents . . . have a

right to champion their [child’s] cause, but the right to have

their attorneys fees picked up by the taxpayers is more

circumspect.”). Therefore, it is not clear that it would be

against the purpose of the IDEA to require plaintiffs who do

not achieve judicial imprimatur on their victory to bear

their own attorney’s fees. Furthermore, in light of

Buckhannon, which made explicit that “prevailing party”

has a clearly established meaning that overrides various

policy arguments, we are constrained to reject T.D.’s

contention on this point.

Moreover, we do not take lightly the fact that virtually

every court to have decided the issue has determined that

Buckhannon applies to the IDEA. For instance, the only two

federal appellate courts, the Second and Third Circuits,

that have squarely addressed the issue have both held

Buckhannon applicable to the IDEA.3 See John T., 318 F.3d

3

Also, though the district court below, recognizing that it was a

“very close issue,” ultimately held that Buckhannon did not apply

to the IDEA, T.D. v. La Grange Sch. Dist. No. 102, 222 F. Supp. 2d

1062, 1065 (N.D. Ill. 2002), that is clearly the minority position

among district courts. In a number of other cases in the Northern

(continued...)

No. 02-3928 15

at 556; J.C., 278 F.3d at 125; see also Smyth v. Rivero, 282

F.3d 268, 274 (4th Cir. 2002) (stating that Buckhannon

applies to all “prevailing party” fee-shifting provisions,

regardless of “the particular statutory context.”); John &

Leigh T. v. Iowa Dept. of Educ., 258 F.3d 860, 863-64 (8th

Cir. 2001) (assuming that Buckhannon applies to the IDEA

but not discussing the issue). Today, we join the Second and

Third Circuits in holding that Buckhannon is applicable to

the IDEA.

B. T.D.’s Status as a Prevailing Party Under

Buckhannon

As noted above, Buckhannon held that to be a “prevailing

party” a litigant must have obtained a judgment on the

merits, a consent decree, or some similar form of judicially

sanctioned relief. 532 U.S. at 603-04. In Buckhannon, the

Court specifically noted that “[p]rivate settlement agree-

ments do not entail the judicial approval and oversight

involved in consent decrees. And federal jurisdiction to en-

force a private contractual settlement will often be lacking

unless the terms of the agreement are incorporated into the

3

(...continued)

District of Illinois, it has been held that Buckhannon applies to

the IDEA. See, e.g., Koswenda v. Flossmoor Sch. Dist. No. 161, 227

F. Supp. 2d 979, 989 (N.D. Ill. 2002); Jose Luis R. v. Joliet

Township High Sch. Dist., No. 01 C 4798, 2002 U.S. Dist. LEXIS

20916, at *9-10 (N.D. Ill. Jan. 14, 2002). Likewise, numerous other

district courts have concluded that Buckhannon applies to the

IDEA. See, e.g., Jane Doe v. Boston Pub. Sch., 264 F. Supp. 2d 65

(D. Mass. 2003); Matthew V. v. DeKalb County Sch. Sys., 244 F.

Supp. 2d 1331, 1341-42 (N.D. Ga. 2003); Adams v. Dist. of

Columbia, 231 F. Supp. 2d 52, 54-55 (D.D.C. 2002); Ostby v.

Oxnard Union High, 209 F. Supp. 2d 1035 (C.D. Cal. 2002).

16 No. 02-3928

order of dismissal.” 532 U.S. at 604 n.7. Therefore, the

Court left the clear impression that private settlements do

not involve sufficient judicial sanction to confer “prevailing

party” status. See Christina A. v. Bloomberg, 315 F.3d 990,

993 (8th Cir. 2003); Smyth, 282 F.3d at 279.

The merits of this case were ultimately resolved through

a settlement between the parties. We agree with the Fourth

Circuit’s recent conclusion that some settlement agree-

ments, even though not explicitly labeled as a “consent

decree” may confer “prevailing party” status, if they are

sufficiently analogous to a consent decree. Smyth, 282 F.3d

at 281. For instance, “[w]here a settlement agreement is

embodied in a court order such that the obligation to comply

with its terms is court-ordered, the court’s approval and the

attendant judicial oversight (in the form of continuing

jurisdiction to enforce the agreement) may be . . . function-

ally a consent decree.” Id; see also John T., 318 F.3d at 558

(stating that “a stipulated settlement could confer prevail-

ing party status . . . . where it (1) contained mandatory

language, (2) was entitled ‘Order,’ (3) bore the signature of

the District Court judge, not the parties’ counsel, and (4)

provided for judicial enforcement”) (emphasis omitted)

(citation omitted).

The settlement agreement in this case does not bear any

of the marks of a consent decree. It is not embodied in a

court order or judgment, it does not bear the district court

judge’s signature, and the district court has no continuing

jurisdiction to enforce the agreement. Rather, it was merely

a private settlement agreement between the parties. T.D.

argues that because the district court was actively involved

in the settlement negotiations, having conducted a settle-

ment conference in his chambers and made certain settle-

ment suggestions, that we should find that there was

sufficient “judicial imprimatur” on the settlement to confer

“prevailing party” status.

No. 02-3928 17

Mere involvement in the settlement, however, is not

enough. There must be some official judicial approval of the

settlement and some level of continuing judicial oversight.

Buckhannon, 532 U.S. at 604 n.7; Smyth, 282 F.3d at 281.

Therefore, we find that the settlement agreement reached

in this case did not confer “prevailing party” status upon

T.D.

T.D. asserts that even if he cannot be said to have

prevailed via the settlement, that he was the “prevailing

party” in the due process hearing and therefore should be

compensated at least for that success. The parties do not

dispute that the IDEA’s fee-shifting provision allows courts

to grant attorney’s fees to parents who prevail in an ad-

ministrative hearing. Indeed, we held in Brown v.

Griggsville Comm. Unit Sch. Dist. No. 4, that the IDEA

does allow fees to the prevailing party in administrative

hearings. 12 F.3d 681, 683-84 (7th Cir. 1993). While we

recognize that this opinion was issued before Buckhannon,

we do not perceive that Buckhannon requires a different

conclusion.

The IDEA’s fee-shifting provision allows attorney’s fees to

the party that prevails “[i]n any action or proceeding”

brought under the IDEA. 20 U.S.C. § 1415(i)(3)(B). As other

courts have noted, the word “proceeding” as used in other

parts of the statute refers to administrative or due process

hearings. See, e.g., id. § 1415(d)(2)(F) & (k)(7)(C)(I) (“due

process proceedings”); Id. § 1415(i)(2)(B)(I) & (i)(3) (D)(ii)

(“administrative proceedings”); L.C. v. Warterbury Bd. of

Educ., No. 3:00 CV 580, 2002 U.S. Dist. LEXIS 6079, at *7-

8 (D. Conn. Mar. 21, 2002). And the Court in Buckhannon

gave no indication that it intended to overturn its decision

in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

(1980). That case held that the fee-shifting provision in

Title VII, which also referred to “action or proceeding,”

allowed courts to award attorney’s fees to the prevailing

party in administrative hearings. Id. at 61.

18 No. 02-3928

The school district does not dispute that to the extent that

T.D.’s parents prevailed at the due process hearing, they

are eligible for fees for that success. The school district

disputes only whether T.D. prevailed at the due process

hearing at all. The Supreme Court has stated that a

plaintiff may be considered a “prevailing party” if “they

succeed on any significant issue in litigation which achieves

some of the benefit the parties sought in bringing suit.”

Hensley, 461 U.S. at 433 (noting that this is a “generous

formulation”). We find that while T.D. did not succeed on

every issue at the due process hearing, he did prevail on

certain significant issues and achieved at least some of the

benefit he sought.

In his hearing request, T.D. sought to have the school

district conduct a case-study evaluation to determine his

eligibility for benefits under the IDEA. And he sought re-

imbursement for various costs incurred in attending the

private day school, including tuition, a one-on-one aide, and

transportation. The hearing officer granted T.D.’s request

for an evaluation by the school district, ordering the school

to conduct the evaluation on November 20, 1997. Signifi-

cantly, the hearing officer placed blame on the school

district for not requesting written consent to conduct the

evaluation, even though they had notice that T.D. might

have been eligible for IDEA benefits. The case-study

evaluation and IEP conference that followed, determined

that T.D. was in fact eligible for IDEA benefits and pro-

posed placement of T.D. at public school in a regular-

education classroom, with supplemental special-education

services to address T.D.’s needs. This determination repre-

sented some success for T.D. because prior to his request for

the due process hearing the school had not acknowledged

that T.D. was even eligible for IDEA benefits.

The hearing officer partially granted T.D.’s requests for

reimbursement for the costs of attending the private school,

awarding reimbursement for the cost of the one-on-one aide

No. 02-3928 19

and for transportation, but refusing to grant reimbursement

for the cost of tuition. The hearing officer characterized this

partial relief as an equitable award. He found that the

private day school was not providing T.D. with an appropri-

ate education; therefore, he did not award T.D. reimburse-

ment for the cost of the tuition. The hearing officer, how-

ever, found that the school district was at least partly to

blame for T.D.’s inappropriate placement at the private

school since the school district failed to conduct an evalua-

tion of T.D. and failed to offer T.D. any formal placement

proposal before the November 20, 1997 evaluation and

conference. Considering these failures, the hearing officer

ordered the school district to reimburse T.D. for the cost of

the one-on-one aid from the time she was hired until T.D.

could be enrolled in the public school. And the cost of

transportation to the private school was also ordered to be

reimbursed.

T.D. succeeded in obtaining the case-study evaluation

that the school previously had not conducted and that

ultimately led to the determination that he was eligible for

benefits under the IDEA. This success coupled with the re-

imbursement he received for the cost of the one-on-one aid

and transportation to the private school (which together

added up to nearly $1200 a month) rendered T.D. a “pre-

vailing party” in the administrative hearing. Therefore, we

find that T.D. is entitled to attorney’s fees for prevailing at

the administrative hearing.

C. Award of Expert Witness Fees

Finally, the school district challenges the district court’s

award of expert witness fees to T.D. as part of the attor-

ney’s fees and costs of the litigation. Because we determined

that T.D. was a prevailing party as to the administrative

hearing, we must consider whether T.D. should receive

expert witness fees incurred as part of that hearing.

20 No. 02-3928

Title 28 U.S.C. § 1920 is the general provision that

provides for the taxation of costs in federal court, and

§ 1920(3) allows for payment of witnesses.4 In 28 U.S.C.

§ 1821(b), Congress placed a limit on the witness fees

authorized by § 1920(3), providing that “[a] witness shall be

paid an attendance fee of $40 per day for each day’s atten-

dance.” In Crawford Fitting Co. v. J.T. Gibbons, the Su-

preme Court held 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.” 482

U.S. 437, 439 (1987). Therefore, we must look to the IDEA’s

fee-shifting provision to determine if it contains “explicit

statutory authority” for shifting of expert witness fees.

As cited above, the IDEA’s fee provision states:

In any action or proceeding brought under this section,

the court, in its discretion, may award reasonable at-

torney’s fees as part of the costs to the parents of a child

with a disability who is the prevailing party.

20 U.S.C. § 1415(i)(3)(B) (emphasis added). T.D. relies on

the italicized portion of the statute as authority to shift ex-

pert witness fees to the losing party. This provision, how-

ever, does not provide any explicit statement as to expert

witness fees.

The only federal appellate court to address the issue of

expert witness fees under the IDEA held that the IDEA did

not contain the necessary explicit authority to exceed the

amounts provided for in 28 U.S.C. § 1821(b). Neosho R-V

4

In relevant part § 1920 provides: “A judge or clerk of any court

of the United States may tax as costs the following: . . . (3) Fees

and disbursements for printing and witnesses.” 28 U.S.C. § 1920

(2003).

No. 02-3928 21

Sch. Dist. v. Clark, 315 F.3d 1022, 1031 (8th Cir. 2003). We

agree with the Eighth Circuit’s reasoning and conclusion. In

Neosho, the Eighth Circuit acknowledged that the construc-

tion of the IDEA’s fee provision appears to contemplate that

costs include something more than attorney’s fees, “but [it]

does not specifically authorize an award of costs or define

what items are recoverable as costs.” Id. Absent a specific

authorization for the allowance of expert witness fees,

“federal courts are bound by the limitations set out in 28

U.S.C. § 1821 and § 1920.” Id. (quoting Crawford Fitting

Co., 482 U.S. at 445).

Furthermore, in W. Va. Univ. Hosp., Inc. v. Casey, the

Supreme Court was faced with the question of whether a

former version 42 U.S.C. § 1988 gave authority to shift

expert fees. 499 U.S. 83, 84 (1991). This former version of

§ 1988 contained a fee-shifting provision, almost identical

to that in the IDEA, allowing “the prevailing party . . . a

reasonable attorney’s fee as part of costs.”5 42 U.S.C.

§ 1988(b) (1990). The Casey Court held that this language

was not an explicit statutory authorization that allowed

shifting of expert witness fees. 499 U.S. at 102.

In so holding, the Court observed that Congress had spe-

cifically enacted several statutes that explicitly provided for

the shifting of both attorney’s fees and expert witness fees.

Id. at 88-89 (noting that “[a]t least 34 statutes in 10

different titles of the U.S. Code explicitly shift attorney’s

fees and expert witness fees.”). The Court concluded that if

it were to interpret a statute that provides only for attor-

ney’s fees to actually allow shifting of both attorney’s fees

5

Following the Supreme Court’s decision in Casey, Congress

amended § 1988 by adding subsection (c), which provides: “In

awarding an attorney’s fee under subsection (b) of this section . . .

the court in its discretion may include expert fees as part of the

attorney’s fee.” 28 U.S.C. § 1988 (2003).

22 No. 02-3928

and expert fees, the “dozens of statutes referring to the two

separately [would] become an inexplicable exercise in

redundancy.” Id. at 92. Obviously, these same concerns

exist for the IDEA, which uses nearly identical statutory

language.

T.D. argues that the legislative history of the IDEA

supports allowing expert witness fees to the prevailing

party. That legislative history, in the form of a House

Conference report, states:

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 is found to be necessary for the

preparation of the . . . case.

H.R. Conf. Rep. No. 99-687, at 5 (1986), reprinted in 1986

U.S.C.C.A.N. 1807, 1808. We recognize that this report does

appear to support T.D.’s position. The Eighth Circuit,

however, rejected this identical argument, finding that

since “[n]othing in the plain language of the statute indi-

cates that the district court is authorized to exceed the

limitations set out in § 1821 and § 1920,” there is no am-

biguity in the statute, and therefore “no occasion to look to

the legislative history.” Neosho, 315 F.3d at 1032 (citing

Burlington N. R.R. v. Okla. Tax Comm’n, 481 U.S. 454, 461

(1987) (“Unless exceptional circumstances dictate oth-

erwise, when we find the terms of a statute unambiguous,

judicial inquiry is complete.”)).

The Casey Court in dicta characterized this portion of the

IDEA’s legislative history as “an apparent effort to depart

from ordinary meaning and to define a term of art,” noting

that “the specification would have been quite unnecessary

if the ordinary meaning of the term included those ele-

ments.” 499 U.S. at 91 n.5. We agree with the Eighth

Circuit’s determination that “this ‘apparent effort’ to define

a term of art in legislative history is an unsuccessful one.”

No. 02-3928 23

Neosho, 315 F.3d at 1032. The Supreme Court made clear

in Crawford that “explicit statutory authorization” was

necessary to allow courts to exceed the limitations of 28

U.S.C. § 1821 and § 1920. We find no such authorization in

the IDEA, particularly, in light of the fact that the Supreme

Court in Casey found that the same words used in the

former § 1988 (“reasonable attorney’s fee as part of costs”)

did not provide the necessary explicit statutory authoriza-

tion.

III. Conclusion

We hold that the Supreme Court’s requirements for

attaining prevailing party status set out in Buckhannon are

applicable to the IDEA. We find that the settlement reached

between the parties in this case was no more than a private

agreement, lacking the judicial imprimatur to elevate T.D.

to the status of prevailing party. T.D.’s success in the

administrative hearing, however, does entitle him to receive

attorney’s fees to the extent that he prevailed in that

hearing. Finally, we hold that expert witness fees are not

available to T.D. under the IDEA. Therefore, we AFFIRM in

part and REVERSE in part. The case is REMANDED to the

district court for a determination of the amount of attor-

ney’s fees to which T.D. is entitled based on the degree of

success he achieved in the administrative hearing.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-14-03