# Calloway v. District of Columbia

> Court of Appeals for the D.C. Circuit · June 30, 2000 · 216 F.3d 1

URL: https://www.frixlaw.com/law-library/cases/9439214

## Case

- **Full name:** Brandon CALLOWAY, Et Al., Appellants/Cross-Appellees v. DISTRICT OF COLUMBIA, Et Al., Appellees/Cross-Appellants
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 30, 2000
- **Citations:** 216 F.3d 1; 342 U.S. App. D.C. 110; 2000 U.S. App. LEXIS 15368; 2000 WL 781096
- **Precedential status:** Published
- **Opinion:** Dissent by Ginsburg
- **Judges:** Ginsburg, Tatel, Garland
- **Cited by:** 108 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9439214

## How later opinions describe it (automated extraction)

- recognizing the “potential incongruity of the courts’ awarding fees that [federal law] prohibits the District from paying,” but concluding that “reconciling inharmonious statutory directives is Congress’ responsibility, not the courts’ ”
- recognizing the “potential incongruity of courts’ awarding fees that [federal law] prohibits the District from paying,” but concluding that “reconciling inharmonious statutory directives is Congress’ responsibility, not the courts’ ”
- holding that the statutory cap does not limit the power of a court to award attorneys’ fees above the amount set by the cap, only the authority of the District to make payments of attorneys' fees in excess of the cap
- explaining that suspect was arrested not because of his disability but “because there was probable cause to believe that he assaulted a police officer”
- rejecting the suggestion that a fee cap should be reviewed under heightened scrutiny because it burdens the educational opportunities of a disadvantaged group, and upholding the fee cap under rational basis review

## Opinion text

GINSBURG, Circuit Judge,
dissenting in part:
I concur in Parts I and II of the opinion for the Court and in the judgment in No. 99-5215, rejecting the families’ constitutional challenges. I dissent from Part III of the opinion and from the judgment in No. 99-5216 because I believe that for FY 1999 the Congress modified the authority of the district court to award attorneys’ fees under § 615 of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415 .
I. Backgi’ound
The Congress reenacted § 615 of the IDEA with considerable revisions in 1997. See Individuals with Disabilities Education Act Amendments for 1997, Pub.L. No. 105-17, § 101 , 110 Stat. 37 , 88 (1997). Section 615 includes the following provision for attorneys’ fees:
In any action or proceeding brought under this section, the [district] 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.
Id. at 92 , codified at 20 U.S.C. § 1415 (i)(3)(B).
The Congress revisited the subject of attorneys’ fees in IDEA cases two years later when it passed the District of Columbia Appropriations Act of 1999. See Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub.L. No. 105-277, § 101 (c), 112 Stat. 2681 (1998). Section 130 of the 1999 D.C. Appropriations Act provides:
None of the funds contained in this Act may be made available to pay the fees of an attorney who represents a party who prevails in. an action, including an administrative proceeding, brought against the District of Columbia Public Schools under the Individuals with Disabilities Education Act ( 20 U.S.C. § 1400 et seq.) if
(1) the hourly rate of compensation of the attorney exceeds the hourly rate of compensation under section ll-2604(a), District of. Columbia Code [i.e., $50 per hour], or
(2) the maximum amount of compensation of the attorney exceeds the maximum amount of compensation under section 11 — 2604(b)(1), District of Columbia Code [i.e., $1,300 total], except that compensation and reimbursement in excess of such maximum may be approved for *13 extended or complex representation in accordance with section ll-2604(c), District of Columbia Code.
Obviously, § 130 has some effect upon attorneys’ fees under the IDEA. The question before us is what effect: Is § 130 a limitation for FY 1999 upon the court’s pre-existing authority in § 615 to award attorneys’ fees in excess of $50 per hour and $1,300 per case? Or does it merely “prohibit[ ] the District from paying during the same fiscal year” any fee the district court might award in excess of those caps, Maj. Op. at 9-10, thereby leaving the District liable for such awards after the end of that fiscal year? Today the court, citing an interpretive presumption and then declining to address the evidence offered by the District to overcome that presumption, gives the latter answer. I would give the former: § 130 limits the authority of the district court under IDEA § 615 because in § 130 the Congress “by clear implication, if not express statement, modified pro tanto the previous substantive law.” American Federation of Government Employees v. Campbell, 659 F.2d 157, 161 (D.C.Cir.1980).
II. Analysis
In Campbell this court held that an appropriations rider strikingly similar in text and structure to § 130 modified pro tanto the prior substantive statute to which it referred. There, the plaintiffs were federal employees whose wages were determined under the “prevailing rate statute,” 5 U.S.C. §§ 5341-5349 (1976 & Supp. Ill 1979). That statute required that wages be “fixed and adjusted from time to time ... in accordance with prevailing rates,” as determined by wage surveys of the private sector to be conducted by “lead agencfies].” Id. § 5343(a), (a)(3).
The lead agencies had conducted their surveys and recommended wage increases of between 7% and 12% for the plaintiffs. See Campbell, 659 F.2d at 159 . Thus, the employing agencies were required by the prevailing rate statute to order pay raises in this 7%-12% range (except insofar as they may have found the “public interest” required less — a point hot relevant in Campbell or here). Before the employing agencies had actually ordered any wage increase, however, the Congress passed an appropriations rider that provided:
No ... funds appropriated for the fiscal year [1979] . .■. may be used to pay the salary or pay of any individual ... in an amount which exceeds [a 5.5% raise] as a result of any adjustments which take effect during such fiscal year under ... (3) section 5343 of Title 5 ... if such adjustment is granted pursuant to a wage survey....
Pub.L. No. 95-429, § 614 (a), 92 Stat. 1001 , 1018 (1978). The Civil Service Commission interpreted the rider as prohibiting the employing agencies from'granting any pay increase greater than 5.5%, and the agencies therefore ordered raises of only that percentage. See Campbell, 659 F.2d at 159 .
The plaintiffs argued to this court that the rider did not modify the prevailing rate statute, and therefore the employing agencies were still required by law to order pay raises in the 7%-12% range recommended by the lead agencies. See id. at 160 . We rejected this argument and concluded that for the fiscal year the appropriations rider modified the prevailing rate statute, limiting the plaintiffs’ salary increase below the amount that would have been called for under that statute. We reached this conclusion based exclusively upon two elements in the text of the rider, which we accepted as clearly and unequivocally demonstrating that the Congress meant to and did modify the preexisting statute.
First, the appropriations rider expressly referred to the prevailing rate statute. It was upon precisely this basis, that we distinguished Tennessee Valley Authority v. Hill, 437 U.S. 153 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978), upon which the court relies today, as well as United States v. Langston, 118 U.S. 389 , 21 Ct.Cl. 506 , 6 *14 S.Ct. 1185 , 30 L.Ed. 164 (1886), which is to like effect. See Campbell, 659 F.2d at 160 -61 & n. 9. The importance of an express reference to the preexisting statute is that it ensures that Members of Congress were aware that the new legislation would affect the operation of the preexisting statute. See United States v. Hansen, 772 F.2d 940, 944-45 (D.C.Cir.1985). The Supreme Court had previously recognized the importance of such a reference (or lack thereof) in TV A v. Hill itself, see 437 U.S. at 189 , 98 S.Ct. 2279 , and two of our sister circuits have since done so, see United States v. Joya-Martinez, 947 F.2d 1141, 1144 (4th Cir.1991); Republic Airlines, Inc. v. United States Dep’t of Transp., 849 F.2d 1315, 1322 (10th Cir.1988). But compare Firebaugh Canal Co. v. United States, 203 F.3d 568 , 576 n. 4 (9th Cir.2000) (express reference “not [] meaningful”), with id. at 579 (Trott, J., dissenting) (express reference crucial).
Second, in Campbell we noted that the Congress had “specifically set a ceiling on wage increases” in the appropriations rider, which differentiated the rider from a “mere failure to appropriate funds.” 659 F.2d at 161 n. 10. We distinguished New York Airways, Inc. V: United States, 177 Ct.Cl. 800 , 369 F.2d 743 (Ct.Cl.1966), upon this basis. Again, the Supreme Court had already drawn the same distinction: The mere act of appropriating funds, see TVA v. Hill, 437 U.S. at 190 , 98 S.Ct. 2279 , or of failing to do so, see Langston, 118 U.S. at 394 , 6 S.Ct. 1185 , says little about the underlying substantive obligation; but inclusion in an appropriations act of a new framework to govern the substantive obligation indicates that the Congress was modifying the prior statutory framework, see, e.g., United States v. Mitchell, 109 U.S. 146, 149-50 , 19 Ct.Cl. 703 , 3 S.Ct. 151 , 27 L.Ed. 887 (1883). Therefore we concluded that because the “Congress specifically set a ceiling on wage increases, and directly referred to the prevailing rate statute as one of the substantive statutes affected by the appropriations bill,” the appropriations rider “contains words that by clear implication, if not express statement, modified pro tanto the previous substantive law.” Campbell, 659 F.2d at 161 & n. 10.
In § 130 we see the same two textual elements that were dispositive in Campbell . It expressly refers to “the fees of an attorney who represents a party who prevails in an action ... under the Individuals with Disabilities Education Act ( 20 U.S.C. § 1400 et seq.),” and it lays out a comprehensive new framework for determining fees. As to the second textual element, this case is an even stronger one than Campbell : Where the appropriations rider in Campbell simply set a cap on wage increases, § 130 not only sets caps on attorneys’ fees but also incorporates a detailed procedure by which a court may, under specified conditions, waive a cap. Section 130 thus “contains words that by clear implication, if not express statement, modifiy] pro tanto the previous substantive law.” Campbell, 659 F.2d at 161 . *
This conclusion drawn directly from the text of § 130 is also reflected in the legis *15 lative history of that provision. The District notes that the House Appropriations Committee, in the only report to discuss § 130 in any detail, stated that § 130 “limit[s] the award of attorney fees in special education cases.” H.R.Rep. No. 105-670, at 50 (1998) (emphasis supplied) (discussing predecessor version of § 130 identical in relevant respects to enacted version). President Clinton agreed, both when he signed § 130 into law, see Statement by President William J. Clinton upon Signing H.R. 4,328, 34 Weekly Comp. Pres. Docs. 2108, 2112 (Nov. 2, 1998) (“the Act also includes language that would cap the award of plaintiffs’ attorneys’ fees in [IDEA] cases”), and when he vetoed a bill containing essentially the same rider the following year, see District of Columbia Appropriations Act, 2000 — Veto Message, 145 Cong. Rec. H8941, H8942 (Sept. 28, 1999) (“[FY 2000 provision identical in relevant part to § 130] would cap the award of plaintiffs’ attorneys’ fees in [IDEA] cases”) (emphases supplied).
Finally, the District argues that the incongruous and plainly unintended results ensuing from the court’s interpretation suggest that § 130 is a limitation upon the district court’s authority to award attorneys’ fees; common sense tells us the District is right. Otherwise, one would have to believe that the Congress intended awards of attorneys’ fees above the caps to accumulate as IOUs, payable at the end of the fiscal year when the appropriations rider is no longer operative. Of course, the Congress does, not infrequently, decline to appropriate money for an undertaking authorized under prior law. In cases where the prior statute merely authorizes the undertaking, however, no obligation can lawfully be incurred until funds have been appropriated, see 31 U.S.C. 1341(a); the effect in such a case is to postpone until a later date any steps that actually cause the Government to incur an obligation. This case is entirely different: Under the court’s interpretation of § 130, the District will continue to incur additional liabilities, which will continue to accumulate while its authority to pay them remains in suspense.
The court today does not point to any reason for thinking the Congress really intended such a peculiar result. (Nor, since they chose not to file a brief in the District’s cross-appeal, do the cross-appel-lee families suggest any such reason; nor did the district court.) There are, to be sure, cases in which a court has held that the Congress delayed only the payment and not the underlying incurrence of an obligation, see, e.g., Langston, 118 U.S. at 394 , 6 S.Ct. 1185 ; but these involve mere failures to appropriate a sufficient sum where there is no other indication the Congress intended that the Government not incur new liabilities, see id., or there is specific legislative history demonstrating the Congress understood it was not altering the Government’s underlying liability, see New York Airways, 369 F.2d at 751 . Where, on the other hand, the Congress has done more than merely fail to appropriate a sum sufficient to cover an accumulating obligation, the Supreme Court has held that “it is not to be believed that Congress ... was simply appropriating a part of that which it knew ■ was due.” Belknap v. United States, 150 U.S. 588, 595 , 29 Ct.Cl. 557 , 14 S.Ct. 183 , 37 L.Ed. 1191 (1893); see also Will, 449 U.S. at 224, 101 S.Ct. 471 (“Congress intended to rescind [Adjustment Act] raises entirely, not simply to consign them to the fiscal limbo of an account due but not payable”); cf. National Treasury Employees Union v. Devine, 733 F.2d 114, 120 (D.C.Cir.1984) (rejecting interpretation of appropriations resolution that would have resulted in “steady accumulation of unreviewed proposals”).
As the District points out in its brief, the result of the court’s interpretation of § 130 is in fact more than just peculiar — it accomplishes the exact opposite of what the Congress sought to achieve through § ' 130. Most IDEA complaints filed with the District are resolved in an administrative pro *16 ceeding before the D.C. school system, that is, without resort to the district court. Before § 130 was enacted, the District had adopted guidelines under which, as required by the IDEA, it would award and pay reasonable attorneys’ fees in such cases upon the submission of a proper fee application; thus in FY 1998 the District, without any court involvement, approved and paid $10,400,000 in IDEA attorneys’ fees for administrative proceedings; during the same year the District paid only $664,000 in fees awarded by the court. When § 130 became effective, however, the District revised its guidelines, in conformity therewith, to preclude any fee application that sought attorneys’ fees above the caps. In other words, the District interpreted § 130 as limiting its authority to award as well as to pay attorneys’ fees above the caps during FY 1999 — an interpretation the court today necessarily accepts as correct in the way it tries to distinguish Campbell , Maj. Op. at 11.
Limiting awards by the District without limiting awards by the district court would actually increase the District’s fee liability, however. A family that prevails in an administrative proceeding but is denied by the District a “reasonable” attorneys’ fee because the amount exceeds the caps may simply repair to the district court for an award of fees greater than what the District can award, see Moore v. District of Columbia, 907 F.2d 165 (D.C.Cir.1990) (en banc); moreover, the district court may include in its uncapped award reasonable fees for the attorneys’ fee litigation, see Moore v. District of Columbia, 674 F.Supp. 901 (D.D.C.1987) (awarding $29,357 for IDEA representation and $19,117 for representation in subsequent attorneys’ fee litigation before the district court). Under the court’s interpretation of § 130, therefore, the Congress not only failed effectively to cap the fees awarded against the District, it managed to increase the District’s fee liability — as well as the District’s expenditures for its own legal representation — by requiring and enabling families to go to district court to obtain a higher award. I do not think that was what the legislature meant to do or did. See Clinton v. New York, 524 U.S. 417, 430 , 118 S.Ct. 2091 , 141 L.Ed.2d 393 (1998) (rejecting interpretation of statute that “would produce an absurd ... result which Congress could not have intended”).
The court today reaches the contrary conclusion by way of the presumption that an appropriations act does not alter substantive law. Maj. Op. at 9, 9-10,11. The Supreme Court has made clear, however, that a presumption used to interpret a statute is “just that — a presumption [which] may be overcome” by contrary evidence that provides a “reliable indicator of congressional intent.” Block v. Community Nutrition Inst., 467 U.S. 340, 349 , 104 S.Ct. 2450 , 81 L.Ed.2d 270 (1984). In keeping with this teaching, both the Supreme Court and this court have found appropriations acts to have modified preexisting substantive law in the light of evidence from the text, see Campbell, 659 F.2d at 160-61 , from legislative history, see, e.g., Will, 449 U.S. at 224 , 101 S.Ct. 471 , or from the structure of the act, see, e.g., Mitchell, 109 U.S. at 149-50 , 3 S.Ct. 151 ; and, yes, in the light of common sense as well, see, e.g., Belknap, 150 U.S. at 595 , 14 S.Ct. 183 ; Devine, 733 F.2d at 120 . The District has sought to overcome the presumption with evidence from all of these sources; but the court today, scarcely even acknowledging the District’s arguments, relies upon “bare statements] of law” instead of evaluating the evidence to determine whether “the facts ... present a different picture of congressional intent.” Campbell, 659 F.2d at 160 . *
*17 The greatest problem for the court is that no matter how it analyzes § 130 it runs into Campbell . As for the undoubted presumption against finding- that an appropriations act effects a substantive modification of law, in Campbell we concluded unequivocally that the appropriations act repealed pro tanto the prevailing rate statute, and the presumption was overcome based upon only the two textual elements that are likewise present in § 130. As for the undoubted rule that repeal by implication is disfavored, even, if we treat § 130 as an implied repealer — and I do not believe that either this case or Campbell involves an implied repealer as exemplified by the argument urged upon the Court in TVA v. Hill — the same two textual factors provide the “affirmative showing of an intent to repeal” required under TVA v. Hill, 437 U.S. at 190 , 98 S.Ct. 2279 .
The court today makes one attempt to distinguish Campbell from this case: In Campbell the employing agency both granted and paid any wage increase, whereas in this case the district court awards fees while the District pays them. Maj. Op. at 9, 11. That factoid, the court claims, poses a question in this case that was not present in Campbell : “in the absence of clear legislative intent ... to amend substantive law, does an appropriations act funding one governmental entity restrict the substantive authority of a separate entity, indeed a separate branch of government?” Maj. Op. at 11. Assuming counterfactually, as the question does, the absence of clear legislative intent, the answer would of course be no. In this case, however, we have the same evidence of legislative intent that we held sufficient in Campbell to show the Congress meant to modify substantive law. The real issue lurking in the court’s rhetorical question, then, is not whether evidence of congressional intent is required but whether such evidence can ever show that an appropriations act. funding one governmental entity is meant to restrict the substantive authority of another entity. As a pair of cases from this court demonstrates, the answer is yes, if that is what the Congress dis-r cernably meant the appropriations act to do.
In Devine, 733 F.2d at 114 , the Office of Personnel Management had issued new personnel regulations less than a month before the Congress enacted an appropriations rider stating that “[n]one of the funds appropriated under this Act [funding the OPM] shall be obligated or expended to implement, promulgate, administer, or enforce the [new OPM regulations].” 733 F.2d at 116 . Based upon the precise wording of the rider, the OPM took the position that the rider “does not prevent any agency other than OPM from implementing, administering and enforcing the regulations’ within that agency.” Id. at 116-17 . We rejected that argument for two reasons, both based expressly upon the intent of the legislature: first, the Congress did not intend personnel regulations to be applied by other agencies without the OPM’s involvement; and second, “even assuming arguendo that the regulations could be implemented workably without further participation by the OPM, it is evident that Congress intended to prevent this.” Id. at 119-20 .
In Donovan, 734 F.2d at 1547, the respondent, who had been cited for a mine safety violation, argued that an appropriations rider prohibiting the Mine Safety and Health Administration (MSHA) from expending appropriated funds to “enforce any standard, rule, regulation or order under the ... Act” precluded the Government from appealing an adverse administrative ruling on the mine safety violation. 734 F.2d at 1557. We rejected that argu- *18 raent, noting that the Office of the Solicitor of Labor, which conducted the appeal, was not funded by the MSHA appropriation. We did not stop at that observation, however; we went on to inquire into what the Congress intended to accomplish through the rider — as evidenced by the untoward consequences that would ensue if the appropriations rider were interpreted to amend the preexisting substantive law applicable to another entity:
[The appropriations rider] was the beginning of an effort by some members of Congress to shift [certain mining] operations from MSHA to OSHA jurisdiction. That effort ultimately did not succeed and we think it would be wholly unreasonable to suppose that Congress intended a temporary suspension to wreak the procedural havoc with ongoing appeals that [petitioner] urges. We interpret [the rider] to indicate only Congress’ intent that MSHA initiate no new enforcement litigation.
Id. at 1558. Thus, the court did not interpret the rider as doing anything more than limiting new enforcement actions by the MSHA because there was no indication that the Congress had the seemingly unreasonable intent to affect actions already in the hands of the Solicitor.
Although the results in Devine and Donovan look in different directions, they are not in conflict. Quite the contrary, the court in each case asked precisely the same question: Did the Congress intend an appropriations act that expressly places limits upon only one governmental entity to limit the authority of another governmental entity? In Devine the court said yes, while in Donovan the court (acting two weeks later through two of the same judges) said no. The question should be the same here as well, and based upon the text of § 130 and the incongruities that will result from the contrary interpretation, I think the clear answer is that the Congress did intend § 130 to modify pro tanto § 615 of the IDEA. *
III. Summary and Conclusion
The text of § 130 makes clear that the Congress modified for FY 1999 the authority of the district court to award attorneys’ fees under § 615 of the IDEA, 20 U.S.C. § 1415 . Even if § 130 is analyzed under the rubric of an implied repealer, the same text provides the clear and manifest “affirmative showing of an intention to [modify]” required under TVA v. Hill, 437 U.S. at 190 , 98 S.Ct. 2279 . I therefore dissent from Part III of the opinion for the Court and from the judgment in No. 99-5216.
That § 130 expressly, limits only the "pay[ment]” of IDEA attorneys' fees raises the possibility — and indeed, as the court notes, the presumption — that the Congress meant to affect only the payment and not the award of such fees. The Supreme Court has long held, however, that the use of "payment” or a similar term in an appropriations act does not end a court's inquiry into congressional intent. See United States v. Dickerson, 310 U.S. 554, 561-62 , 60 S.Ct. 1034 , 84 L.Ed. 1356 (1940) ("deny[ing] that such words [prohibiting only payment during a particular fiscal year] when used in an appropriation bill are words of art or have a settled meaning” sufficient to end the court's inquiry into congressional intent).
Both the Supreme Court and this court have found that appropriations riders that by their express terms limit or prohibit only payment may nonetheless alter the underlying substantive obligation and not just its payment. See United States v. Will, 449 U.S. 200, 205-08, 223-24 , 101 S.Ct. 471 , 66 L.Ed.2d 392 (1980); Campbell, 659 F.2d at 159 n. 6; City of Los Angeles v. Adams, 556 F.2d 40, 46 (D.C.Cir.1977); see also Tayloe v. Kjaer, 171 F.2d 343, 344 (D.C.Cir.1948).
For example, the court misreads the Supreme Court’s decision in TVA v. Hill as barring us from considering the District's extensive and uncontested evidence regarding incongruous outcomes in order to determine what the Congress most likely meant by § 130. Maj. Op. at 9-10. The portion of TVA v. Hill quoted by the court, however, Maj. Op. at 10, 9, merely states that after a court has determined what the Congress commanded in the *17 statute, it should not use its remedial discretion effectively to nullify that command by withholding a remedy based upon its own "appraisal of the wisdom or unwisdom of [the] particular course consciously selected by the Congress.” Id. at 194. This rule certainly does not authorize, let alone require, this court to ignore the District’s arguments about what the statute means in the first place.
The court finds Devine "distinguishable" on the ground that the legislative history was more clear in that case. Maj. Op. at 11 — 12. In other words, the court does not dispute that the Congress may limit the authority of an entity not specifically named in the statute; it seems to think, however, that the court must find a statement to that effect in the legislative history in order for us so to conclude. I think it more appropriate to rely primarily upon the textual elements to which Campbell directs us — all the more confidently in view of the absurd results brought on by the contrary interpretation — and only secondarily upon legislative history.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9439214. Public record. Not legal advice.