Brief for the United States — Arlington Central School Dist. Bd. of Ed. v. Murphy

a. x

DEC 9 - 005

No. 05-18 OFFICE OF THE CLER

0. ————

In the Supreme Court of the Anited States

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION, PETITIONER

Vv.

PEARL MURPHY, ET VIR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

PAUL D. CLEMENT

Solicitor General

Counsel of Record

KENT D. TALBERT bay ve te

v. Assistant Attorney General

Acting General Counsel GREGORY G. GARRE

ae Pr ee Deputy Solicitor General

sngton, 0.0. DAVID B. SALMONS

Assistant to the Solicitor

Ge veral

Davi K. FLYNN

Con «B. DUGAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

K

:

|

QUESTION PRESENTED

Whether the fee-shifting provision of the Individuals

with Disabilities Education Act (IDEA), 20 U.S.C.

1415(i)(3)(B), which provides that the court may “award

reasonable attorneys’ fees as part of the costs” to a

prevailing party, authorizes an award of expert fees.

(I)

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TABLE OF CONTENTS

Page

CE a eee COR anS RRR S ARES beaNEees 1

RE en es ee be ce eee cies cee be ene he 5

A. The circuits are divided on whether expert fees are

recoverable under IDEA’s fee-shifting provision ...... 5

B. The Second Circuit rule that expert fees are

recoverable under IDEA contradicts both the

express terms of the Act and this Court’s

NN 6.43 Kde baecdcennchatnescdseid eennvaccne 11

C. The grant of certiorari should be limited to the first

question presented by the petition ................. 19

SN occ Sid dtd suaterenesbeney cas oeunevoekes 20

TABLE OF AUTHORITIES

Cases:

Arons v. New Jersey State Bd. of Educ., 842 F.2d 58

(3d Cir.), cert. denied, 488 U.S. 942 (1988) ....... 5,9, 10

Arons v. Office of Disciplinary Counsel, 531 U.S.

1034 (2000), cert. denied, 532 U.S. 1065 (2001) ....... 19

Arons, In re, 756 A.2d 867 (Del. 2000), cert. denied,

I I i ad widi’ 10

Banes v. Gorman, 536 U.S. 181 (2002) ................ 13

Board of Educ. v. Rowley, 458 U.S. 176 (1982) ......... 12

Cedar Rapids Comm. Sch. Dist. v. Garret F., 526 U.S.

EY, ECGs ceed ec ches Eewah Cube ovswen ek se 12

Coale v. State Dep't of Educ., 162 F. Supp. 2d 316

PE cela cantons dubnawWacbhs ssa eevsves 10

Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998) ... 10

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

SE Seer lestck ti oerestel chedaeneeseé<es 6,13

IV

Cases—Continued: Page

Goldring v. District of Columbia, 416 F.3d 70 (D.C.

3 5 BREN 5, 6, 7, 9, 14, 15, 16, 17, 18

JS. v. Ramapo Cent. Sch. Dist., 165 F. Supp. 2d 570

SN me | enpen nee: rr bm eee VRE 10

Lamie v. United States Trustee, 540 U.S. 526 (2004) .... 15

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (Sth

oe PT ee ee ee 5, 7, 8, 15, 16

Pennhurst State Sch. & Hosp. v. Halderman, 451

sdk. 8 CORED xs ciccivnes ss cchabeees eee 13

Ratzlafv. United States, 510 U.S. 185 (1994) .......... 15

Schaffer v. Weast, 126 S. Ct. 528 (2005) ........... 9, 12, 18

Sierra Club v. EPA, 769 F.2d 796 (D.C. Cir. 1985) ...... 12

Straube v. Florida Union Free Sch. Dist., 801

P. Sapp. 1306 GB.DNG. SEED. os cccvicccadisectecss 10

T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469

y it Serer yee or 5, 8, 15, 16

West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S.

Be CONGO « :enereecbcvntscuunsesvuns 3, 4, 6, 11, 13, 14, 16

Constitution and statutes:

U.S. Const. Art. I, § 8, Cl. 1 (Spending Clause) ........... 12

Handicapped Children’s Protection Act of 1986, Pub.

LL... Ne. OD-G7R, 6D Bik. TS ccusisvinccesestessnans 3

Individuals with Disabilities Education Act, 20 U.S.C.

off. Merrie passim

SOUS. SEEMIMA) .ccccccccsviccassansaes 1,2

SP UBL. MAID ooo cc dkdcdei ceeueaeeene l

SUBLIME 6 yccesccccccccetoneeeenieee 2

BO UBA.. BGR oo cnc kcgnessecesctesnssaueeeee 6

BO UBL. BARRE) .w cn ccccconcersscnseueneieas 2

———_—_—__

Statutes—Continued: Page

EE dicecdeh Ghevediehessnesssaces 2

ED 0 id sch abnccevsédeesseeeen 2,19

ED x i doch dvccveatdnéseseciess 2

20 U.S.C. 1415(i(3)(B) ...... «2... 2, 3, 6, 11, 12, 13

Fg RP ererrerrecrr rr TT re 11

SEIT LOTS TP CEE ED 3

Individuals with Disabilities Education Improvement

Act of 2004, Pub. L. No. 108-446, 118 Stat 2647 ...... 18

cate ek ncetutdhenneedees tees 12, 13, 14

ioc etd ddvevadsduceehadeseteednan 6

i i bce k did kbeeeekavedeeCaseseens 12, 13

SB UBC. IGBNS) 2... cc ccescccccccccsccccesesceceees 12

iid oe nse puendhdesedewaenetese dees 4

Sey MEE Scccececévccetesecs 3, 4, 6, 13, 14, 15.

Miscellaneous:

General Accounting Office, No. GAO-03-897, Special ~

Education: Numbers of Formal Disputes Are

Generally Low and States Are Using Mediation

and Other Strategies to Resolve Conflicts (Sept.

nee ee eed eee de Cau bal ecnandess bees tees 10

H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess. (1986) ... 4,7

H.R. 3809, 108th Cong., 2d Sess. (2004) ................ 17

S. 2088, 108th Cong., 2d Sess. (2004) .................. 17

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In the Supreme Court of the United States

No. 05-18

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION, PETITIONER

v.

PEARL MURPHY, ET VIR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the order of this

Court inviting the Solicitor General to express the views of

the United States.

STATEMENT

1. The Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. 1400 et seq., provides federal grants to

States for assistance in the education of children with dis-

abilities. Under IDEA, a State participating in the grant

program must ensure that each child with a disability re-

ceives a “free appropriate public education,” which includes

special-education and related services necessary to meet

the child’s particular needs. 20 U.S.C. 1400(d)(1)(A) and

1412(a)(1)(A). Local school systems are required to develop

an individualized education program (IEP) for each child

(1)

2

with a disability in accordance with statutory requirements.

See 20 U.S.C. 1412(a)(4). If the parents are not satisfied

with the IEP, they can file a complaint with the State or

local educational agency, and they are entitled to “an im-

partial due process hearing” conducted “by the State edu-

cational agency or by the local education agency.” 20

U.S.C. 1415(b)(6) and (f)1). Among other procedural safe-

guards at the hearing, parents have the “right to be accom-

panied and advised by counsel and by individuals with spe-

cial knowledge or training with respect to the problems of

children with disabilities.” 20 U.S.C. 1415(h)q1). A party

aggrieved by a decision at the final state administrative

stage has a right to “bring a civil action with respect to the

complaint” in federal district court or “any State court of

competent jurisdiction.” 20 U.S.C. 1415(i)(2)(A).

Parents who prevail in an action brought under IDEA

may be awarded attorneys’ fees. IDEA’s fee-shifting provi-

sion states:

In any action or proceeding brought under this section,

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

neys fees as part of the costs to the parents of a child

with a disability who is the prevailing party.

20 U.S.C. 141513) B) (emphasis added).

2. Respondents are the parents of a child with a dis-

ability covered by IDEA. In 1999, they commenced

this action pro se in federal district court pursuant to

IDEA, alleging that petitioner had failed to provide a “free

appropriate public education” for their child, 20 U.S.C.

1400(d)(1)(A), and was therefore required to pay their

child’s private school tuition for certain school years. Pet.

3

App. 2a-3a. Respondents prevailed in district court, and

the Second Circuit affirmed that judgment. /d. at 3a.’

The case returned to the district court and respondents

sought fees and costs pursuant to 20 U.S.C. 1415(i)(3)(B),

including $29,350 in fees for the services of Marilyn Arons,

an educational expert and consultant. Pet. App. 3a. The

district court granted the fee request in part. /d. at 4a, 17a-

43a. The court held that Arons’s fees for “expert consulting

services” were compensable under the Act from the time

respondents requested an administrative due process hear-

ing until they became “prevailing parties” in 2000 when the

district court entered judgment in their favor. /d. at 4a-5a,

37a-38a. However, the court held that respondents “could

not collect ‘attorneys’ fees’ for [Arons] doing work similar

to that of an attorney.” /d. at 4a. Applying that under-

standing, the court awarded respondents $8650 in expert

fees for Arons’s services. /d. at 5a-6a, 41a-43a.

3. The court of appeals affirmed. Pet. App. la-16a.

The court acknowledged that in West Virginia University

Hospital, Inc. v. Casey, 499 U.S. 83 (1991), this Court held

that virtually identical language in the then-current version

of 42 U.S.C. 1988 did not authorize awards of expert fees,

because “there was no ‘explicit statutory authority’ indicat-

ing that Congress intended for that sort of fee-shifting.”

Pet. App. 8a-9a (quoting Casey, 499 U.S. at 87). The court

found, however, that the statement in the House Confer-

ence Committee Report on IDEA’s predecessor, the Handi-

' In the initial appeal in this case, the United States filed an amicus

brief in support of respondents addressing the application of IDE A's

stay-put provision, 20 U.S.C. 1415(}), and petitioner’s liability for tuition

payments. The brief did not address the availability of attorney or

expert fees, which were not at issue before the Second Circuit at that

merits stage. U.S. Br., Murphy v. Arlington Cent. Sch. Dist. Bd. of

Educ., 297 F 3d 195 (2d Cir. 2002) (No. 00-7358).

1

capped Children’s Protection Act of 1986, Pub. L. No. 99-

372, 100 Stat. 796, that “[t]he conferees intend that the

term ‘attorneys’ 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 neces-

sary for the preparation of the . . . case” demonstrated that

Congress intended that expert fees be compensable under

IDEA. /d. at 9a (quoting H.R. Conf. Rep. No. 687, 99th

Cong., 2d Sess. 5 (1986)). The court of appeals also noted

that this Court, in dicta in a footnote in Casey, described

this statement in the committee report as “an apparent

effort to depart from ordinary meaning and to define a term

of art,” and concluded that this Court thereby intended to

distinguish IDEA from Section 1988 as construed in Casey.

Ibid. (quoting Casey, 499 U.S. at 92 n.5).

The court of appeals also found it “instructive” that af-

ter Casey, Congress amended Section 1988 to allow recov-

ery of expert fees in civil rights actions, but took no “similar

action with respect to the IDEA.” Pet. App. 10a. The court

“believe|d] it reasonable to infer that Congress, on the basis

of the Supreme Court’s decision in Casey, saw no need to

amend the IDEA because the Court had recognized that, in

enacting the IDEA, Congress had sufficiently indicated in

the committee report that prevailing parties could recover

expert fees under the Act.” /bid. In addition, the court

reasoned, awarding expert fees was consistent with IDEA’s

purpose of ensuring that all children with disabilities obtain

a free appropriate public education. /d. at 1la-12a.

The court of appeals recognized that its decision in this

case directly conflicts with the holdings of the Seventh and

Eighth Circuits that expert fees are not compensable under

IDEA, but stated that its reading of the statute and this

Court’s cases required it to reject those decisions and, in-

stead, join the Third Circuit in ruling that expert fees

o

are compensable. See Pet. App. 4a, 7a n.5, 8a (citing

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th Cir.

2003); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469

(7th Cir. 2003); Arons v. New Jersey State Bd. of Educ., 842

F.2d 58 (3d Cir.), cert. denied, 488 U.S. 942 (1988)); id. at

13a.

4. After the Second Circuit issued its decision in this

case, a divided panel of the District of Columbia Circuit

held—in accord with the rule in the Seventh and Eighth

Circuits—that IDEA does not authorize an award of expert

fees to prevailing parents. Goldring v. District of Colum-

bia, 416 F.3d 70 (2005). In so holding, that court specifi-

cally acknowledged the Second Circuit’s contrary ruling in

this case and the conflict in the circuits. /d. at 73.

DISCUSSION

The Court should grant the petition for a writ of certio-

rari in this case to decide whether IDEA’s fee-shifting pro-

vision authorizes an award of expert fees to prevailing par-

ents. As the Second Circuit expressly acknowledged, the

circuits are divided on whether IDEA’s fee-shifting provi-

sion authorizes reimbursement for such fees. Pet. App. 8a.

The Second Circuit’s conclusion that the Act allows for the

award of expert fees to prevailing parents contradicts the

plain language of IDEA and departs from this Court’s pre-

cedents construing nearly identical statutory provisions.

Resolution of this conflict is warranted in view of the recur-

ring nature of the expert-fee issue in IDEA litigation, Con-

gress’s efforts to reduce IDEA-related litigation costs, and

the need to ensure IDEA’s uniform application.

A. The Circuits Are Divided On Whether Expert Fees Are

Recoverable Under IDEA’s Fee-Shifting Provision

1. As both the Second Circuit below (Pet. App. 7a-8a)

and respondents (Br. in Opp. 2-3) have acknowledged, the

6

Second Circuit’s holding that Section 1415(i)(3)(B) autho-

rizes the award of expert fees to prevailing parents

squarely conflicts with the decisions of other federal courts

of appeals.

a. Most recently, the District of Columbia Circuit in

Goldring v. District of Columbia, 416 F.3d 70, 73 (2005),

addressed whether Section 1415 “enables a prevailing party

to recover expert fees as part of his costs.” In so doing, it

acknowledged the conflict among the circuits on this issue

and expressly considered and rejected the reasoning and

holding of the Second Circuit in this case. /bid. Indeed, in

rejecting the Second Circuit’s approach, the court stated

that the “correct decision does not seem to us to be difficult

to reach, for the Supreme Court has stated in fairly un-

equivocal terms that language nearly identical to that used

in section 1415 is unambiguous and, more to the point, does

not allow a prevailing party to shift his expert fees.” /bid.

The District of Columbia Circuit reasoned that its con-

clusion “flows directly from the application of two Supreme

Court decisions,” namely, Crawford Fitting Co. v. J.T. Gib-

bons, Ine., 482 U.S. 437 (1987), and West Virginia Univer-

sity Hospital, Inc. v. Casey, 499 U.S. 83 (1991). Goldring,

416 F.3d at 74 (citation omitted). As the District of Colum-

bia Circuit explained, Crawford held that, in awarding fees

to the prevailing party for expert services, a court is limited

to the costs allowed by 28 U.S.C. 1821(b), “absent contract

or explicit statutory authority to the contrary,” 416 F.3d at

73 (citing Crawford, 482 U.S. at 439). Casey, in turn, held

that language materially identical to IDEA’s fee-shifting

provision contained in Section 1988 “contains no such ‘ex-

plicit statutory authority to the contrary,” ‘bid. (quoting

Casey, 499 U.S. at 86).

7

Accordingly, the court in Goldring concluded that the

logic of Crawford and Casey controls whether expert fees

are recoverable under IDEA:

|Bljecause section 1415 and the version of section 1988

construed in Casey contain materially identical lan-

guage and Casey held that section 1988's language does

not enable a prevailing party to shift his expert fees, we

cannot but conclude that section 1415 does likewise.

That is the end of the matter for us.

416 F.3d at 74. In so holding, the court emphatically re-

fused to alter its interpretation on the basis of the confer-

ence report accompanying IDEA’s fee-shifting provision,

which stated that “{t]he conferees intend that the term ‘attor-

neys’ 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.” /bid. (quoting H.R. Conf.

Rep. No. 687, 99th Cong., 2d Sess. 5 (1986)). The court ex-

plained that “[a] sentence in a conference report cannot

rewrite unambiguous statutory text.” Jd. at 75.°

b. The Eighth Circuit took the same approach two

years earlier in Neosho R-V School District v. Clark, 315

F.3d 1022 (8th Cir. 2003). It upheld the district court’s re-

fusal in that case to award expert fees under the IDEA.

, Judge Rogers dissented. Relying on the same line of analysis

adopted by the Second Circuit in this case, she reasoned that the

reference to expert fees in the conference report accompanying IDEA's

fee-shifting provision distinguished this Court's decisions in Casey and

Crawford and required a different interpretation of the statute's text.

See 416 F.3d at 79-83. Accordingly, Judge Rogers concluded that “the

statutory phrase ‘attorney's fees as part of the costs’ * * * authorize|d|

the shifting of fees for experts’ services.” /d. at 82. As respondents

noted (Br. in Opp. 3 n.1), the parents petitioned for rehearing in

Goldring. On November 10, 2005, that rehearing petition was denied.

8

The court explained that the “‘apparent effort’ to define a

term of art in the legislative history [was] an unsuccessful

one” because Congress had not engaged in the sort of “‘ex-

plicit statutory’ authorization” required under Crawford to

“exceed the limitations of the general cost statutes.” /d. at

1032. The court also explained that “costs” “is an ordinary

term with which federal judges are well acquainted” and

that “{a|bsent a specific definition of costs” in the statutory

text, courts must “look to the general provisions providing

for the taxation of costs in federal courts as a matter of

course.” /d. at 1031.

ce. The Seventh Circuit in 7.D. v. LaGrange School

District No. 102, 349 F.3d 469, 481 (7th Cir. 2003), ex-

pressly “agree|d]| with the Eighth Circuit’s reasoning and

conclusion” in Neosho. It too held that, under Crazford

and Casey, an “explicit statutory authorization was neces-

sary to allow courts to exceed the limitations under 28

U.S.C. § 1821 and § 1920,” and that no authorization was

present in the IDEA. /d. at 482. The court similarly re-

fused to find such authorization in the legislative history of

IDEA’s fee-shifting provision. bid.

d. In contrast, the Second Circuit below expressly re-

jected the reasoning of the Seventh and Eighth Circuits,

Pet. App. 7a-8a, and squarely held that “Congress intended

to and did authorize the reimbursement of expert fees in

IDEA actions.” /d. at 8a. In so holding, the Second Circuit

grounded its interpretation on the same language in the

conference report that the Seventh, Eighth, and District of

Columbia Circuits expressly rejected. /d. at Ya-lla. In-

deed, the court reasoned that this Court’s reference to that

legislative history in Casey actually “require|d]” the court

9

to construe IDEA to authorize the recovery of expert fees.

Id. at 9a."

2. Respondents suggest (Br. in Opp. 3) that granting a

writ of certiorari in this case would be premature because

several circuits have yet to address the question whether

expert fees are available under IDEA’s fee-shifting provi-

sion. For several reasons, that suggestion should be re-

jected. First, the conflict that does exist is clear and suffi-

ciently developed to warrant the Court’s review at this

time. This Court generally does not wait until all the Cir-

cuits have spoken before addressing an issue on which they

have divided. Second, the question whether expert fees are

recoverable under IDEA is frequently recurring and the

Second Circuit’s decision in this case could lead to increased

litigation costs for parents and schools and divert attention

and resources from the core purposes of IDEA. As this

Court recently emphasized, “there is reason to believe that

a great deal is already spent on the administration of the

[IDEA]” and “Congress has * * * repeatedly amended the

Act in order to reduce its administrative and litiga-

tion-related costs.” Schaffer v. Weast, 126 S. Ct. 528, 535

(2005). Third, the Second Circuit’s rule is likely to have a

* Both the Second Circuit below and the District of Columbia Circuit

in Goldring interpreted the Third Circuit’s decision in Arons v. New

Jersey State Bd. of Educ., 842 F.2d 58 (3d Cir.), cert. denied, 488 U.S.

942 (1988), as holding—in line with the Second Circuit—that expert fees

are recoverable under the IDEA’s fee-shifting provision. See Pet. App.

7a n.5, 13a; Goldring, 416 F.3d at 73. Respondent also has interpreted

Arons as adopting the same approach as the Second Circuit on this

issue. Br. in Opp. 3-4. The Third Circuit in Arons stated that “nothing

prevents [an expert] from receiving compensation for work done as an

expert consultant.” 842 F.2d at 62. The court did not, however, directly

address whether IDEA itself authorizes the award of such fees to the

prevailing parents. Accordingly, it is not clear that the Third Circuit

has squarely taken a position on this issue.

10

significant impact on schools in that Circuit alone, because

a substantial percentage of all litigation under IDEA takes

place within the Second Circuit and, in particular, in New

York.’ Fourth, the Second Circuit’s position conflicts not

just with decisions of other circuits, but with the text of

IDEA and this Court’s precedents, as well.

Furthermore, this case presents a good vehicle to re-

solve the existing circuit conflict. The case squarely pres-

ents the question whether expert fees are recoverable un-

der the IDEA’s fee-shifting provision. The Second Circuit

directly addressed that question. And this case presents a

common fact pattern in which the question has arisen, /.e.,

where prevailing parents seek fees for expert consulting

services in IDEA litigation.”

* See General Accounting Office, Special Education: Numbers of

Formal Disputes Are Generally Low and States Are Using Mediation

and Other Strategies to Resolve Conflicts, No. GAO 03-897, 13-14 (Sept.

2003) (finding that nearly 80% of all due process hearings nationwide

under IDEA occur in just five States and the District of Columbia and

that New York has the highest rate of due process hearings per 10,000

students receiving special education benefits of any State).

” Expert consulting services typically include reviewing materials

gathered by teachers and administrators, observing the student in

class, interviewing teachers and administrators, attending IEP

meetings, contacting various schools regarding placement possibilities,

preparing technical reports, and advising parents in their decision-

making. See Arons, 842 F.2d at 60; JS. v. Ramapo Cent. Sch. Dist., 165

F. Supp. 2d 570, 572 (S.D.N.Y. 2001); Coale v. State Dep't of Educ., 162

F. Supp. 2d 316, 321 (D. Del. 2001); Connors v. Mills, 34 F. Supp. 2d

795, 808 (N.D.N.Y. 1998); Straubev. Florida Union Free Sch. Dist., 801

F. Supp. 1164, 1178 n.13(S.D.N.Y. 1992); Jn re Arons, 756 A.2d 867, 868

(Del. 2000), cert. denied, 532 U.S. 1065 (2001). Such expert services of

Arons herself have been the subject of a number of reported decisions.

See Arons, 842 F.2d at 60; J.S., 165 F. Supp..2d at 572; Coale, 162 F.

Supp. 2d at 321; Connors, 34 F. Supp. 2d at 799; Straube, 801 F. Supp.

at 1178 n.13; /n re Arons, 756 A.2d at 869. While the question presented

11

B. The Second Circuit Rule That Expert Fees Are Recoverable

Under IDEA Contradicts Both The Express Terms Of The Act

And This Court’s Precedents

The Second Circuit’s ruling that IDEA authorizes the

reimbursement of expert fees is inconsistent with both the

plain terms of IDEA and with this Court’s decisions.

1. a. The text of IDEA unambiguously authorizes only

the award of attorneys’ fees—and not expert fees—to par-

ents who prevail in IDEA litigation. Section 1415(i)(3)(B)

provides that courts “may award reasonable attorneys’ fees

as part of the costs.” 20 U.S.C. 1415(i)(3)(B). It nowhere

mentions “expert fees.” That omission is particularly tell-

ing because Congress knows how to expressly authorize the

award of both “attorney’s fees” and “expert fees,” and has

done so in numerous other statutes. See Casey, 499 U.S. at

89 (noting that “[a]t least 34 statutes in 10 different titles of

the United States Code explicitly shift attorney’s fees and

expert witness fees”). The text of IDEA’s fee-shifting pro-

vision thus conclusively demonstrates that Congress autho-

rized reimbursement of only “attorneys’ fees.”

also has arisen in the context where prevailing parents have sought fees

for experts who have testified at a due process hearing, there is no

reason to conclude that the availability of a fee award under IDEA

would turn on the type of expert services provided.

* That conclusion is bolstered by Section 1415(i(3)(F ), which directs

a court to reduce “the amount of attorneys’ fees awarded under this

section” whenever it finds certain specified facts that are explicitly

directed to “attorneys” and “legal services.” 20 U.S.C. 1415(i)(3)(F ).

If Congress intended Section 1415(i)(3)(B) to authorize the reimburse-

ment of expert fees as well as attorneys’ fees, there is no reason to

believe that Congress would have gone to such great lengths in Section

1415(i)(3)(F ) to identify circumstances in which an award of attorneys’

fees should be reduced but have remained silent as to expert fees.

12

Section 1415(i)(3)(B)’s reference to “costs” cannot be

interpreted without regard to the immediately preceding

phrase “attorneys’ fees,” and, in any event, the reference to

“costs” may not be construed to include “expert fees.” The

costs that a judge or clerk of “any court of the United

States may tax” are statutorily defined in 28 U.S.C. 1920.

The only recoverable costs that might apply to an expert in

an IDEA action are found in 28 U.S.C. 1920(3): “Fees and

disbursements for printing and witnesses.” But those fees

are limited to those set out in 28 U.S.C. 1821, 7.e., travel

expenses and a per diem of $40. See, e.g., Sierra Club v.

EPA., 769 F.2d 796, 812 (D.C. Cir. 1985) (denying request

for compensation for a “technical consultant” because his

services did “not fall under the traditional concept of

costs * * * which ordinarily encompasses items such as

filing fees or other court costs”). The expert fees at issue in

this case are for consulting services, not for a witness, and

are not capped at $40 per diem. And, needless to say, if

expert consulting fees are neither attorney’s fees nor costs

they cannot come within the authorization for recovering

“attorneys’ fees as part of the costs.”

b. The background principles against which IDEA

must be construed also preclude any interpretation of the

phrase “attorneys’ fees as part of the costs” to authorize the

award of expert fees. IDEA is Spending Clause legislation

that conditions federal financial assistance on compliance

with the Act’s requirements. See Schaffer, 126 S. Ct. at

531-532; Board of Educ. v. Rowley, 458 U.S. 176, 190 n.11

& 204 n.26 (1982); Cedar Rapids Comm. Sch. Dist. v. Gar-

ret F., 526 U.S. 66, 83 (1999) (Thomas, J., joined by Ken-

nedy, J., dissenting) (“{b]ecause IDEA was enacted pursu-

ant to Congress’ spending power, our analysis of the statute

in this case is governed by special rules of construction”).

Given this Court’s repeated admonition that “if Congress

13

intends to impose a condition on the grant of federal mon-

eys, it must do so unambiguously,” Barnes v. Gorman, 536

U.S. 181, 186 (2002) (quoting Pennhurst State Sch. & Hosp.

v. Halderman, 451 U.S. 1, 17 (1981)), there would no basis

to hold that, in the face of statutory and regulatory silence,

IDEA nevertheless conditions federal funds on the require-

ment that States may be required to pay expert fees i

addition to attorneys’ fees to parents who prevail in an ac-

tion or proceeding under the Act.

2. A plain-meaning interpretation of IDEA’s fee-shift-

ing provision is similarly compelled by this Court’s deci-

sions. In Casey, the Court addressed whether the then-

current version of 42 U.S.C. 1988 authorized the award of

fees to the prevailing party for the services of experts in

civil rights litigation. At the time, Section 1988 authorized

courts in various civil rights actions to award “a reasonable

attorney’s fee as part of the costs.” 42 U.S.C. 1988; see 499

U.S. at 84-85 & n.1. The fee-shifting provision of Section

1988 at issue in Casey thus contained language identical to

the key language of IDEA’s fee-shifting provision at issue

here. See 20 U.S.C. 1415(i)(3)(B) (court may award “rea-

sonable attorneys’ fees as part of the costs”).

This Court in Casey explained that Sections 1920 and

1821 “define the full extent of a federal court’s power to

shift litigation costs absent express statutory authorization

to go further.” Casey, 499 U.S. at 86. As the Court had

previously held in Crawford, Section 1920 is “an express

limitation upon the types of costs which, absent other au-

thority, may be shifted by federal courts.” /d. at 87 (citing

Crawford, supra). Because Section 1920 does not authorize

“fees for services rendered by an expert employed by a

party in a nontestimonial advisory capacity,” such fees are

not compensable absent “explicit statutory authority.”

Ibid. And, with respect to testifying expert witnesses, “ex-

14

plicit statutory authority” is necessary to overcome Section

1821's limitation on fees for such experts. /bid. Thus, the

Court held, the term “costs” does not include fees for ex-

perts who do not testify, nor does it include fees for a testi-

fying expert in excess of those provided by Section 1821.

Id. at 87 & n.3.

Casey therefore rejected the contention that expert fees

could be part of the “costs” allowed by Section 1988. 499

U.S. at 87 n.3. Instead, the Court explained, the question

before it was whether the term “attorney’s fee” in Section

1988 provides the required “explicit statutory authority”

necessary for a district court to award both testimonial and

nontestimonial expert fees. /d. at 87. The Court held that

it did not, primarily because “[{t]he record of statutory us-

age demonstrates convincingly that attorney’s fees and

expert fees are regarded as separate elements of litigation

cost.” Jd. at 88. If “attorney’s fees” included expert fees,

the Court reasoned, then “dozens of statutes referring to

the two separately become an inexplicable exercise in re-

dundancy.” /d. at 92. In addition, when Congress enacted

Section 1988, court cases showed that expert fees were not

considered an element of attorney’s fees. /bid. The Court

also rejected petitioner’s reliance on legislative history, and

emphasized that where the statutory text “contains a

phrase that is unambiguous—that has a clearly accepted

meaning in both legislative and judicial practice—we do not

permit it to be expanded or contracted by the statements of

individual legislators or committees during the course of

the enactment process.” /d. at 98-99.

Because the key language in IDEA’s fee-shifting provi-

sion (“attorneys’ fees as part of the costs”) is identical to the

statutory language at issue in Casey, Casey compels the

conclusion that IDEA’s fee-shifting provision does not au-

thorize reimbursement for expert fees. See Goldring, 416

15

F.3d at 73 (“[t|he correct decision does not seem to us to be

difficult to reach, for the Supreme Court has stated in fairly

unequivocal terms that language nearly identical to that

used in section 1415 is unambiguous and, more to the point,

does not allow a prevailing party to shift his expert fees”);

LaGrange, 349 F.3d at 482 (finding that IDEA fee-shifting

provision does not authorize award of expert witness fees,

“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 authorization”); Neosho,

315 F.3d at 1032-1033 (noting that Casey “specifically indi-

cated that the term ‘costs’ should be construed narrowly as

not including expert witness fees”).

3. As the District of Columbia Circuit concluded in

Goldring, the Second Circuit’s attempts to distinguish

Casey and Crawford are flawed. First, recourse to legisla-

tive history to determine whether Congress intended to

shift expert fees in the IDEA “is simply unwarranted” be-

cause in Casey, this Court held that the phrase “attorneys’

fees as part of the costs” is clear and unambiguous and

warned against resort to committee reports to cloud unam-

biguous text. 416 F.3d at 74; see LaGrange, 349 F.3d at

483; Neosho, 315 F.3d at 1032. As this Court recently reit-

erated, “when the statute’s language is plain, the sole func-

tion of the courts—at least where the disposition required

by the text is not absurd—is to enforce it according to its

terms.” Lamie v. United States Trustee, 540 U.S. 526, 534

(2004). For that reason, the Second Circuit erred by rely-

ing on a statement in a committee report accompanying the

fee-shifting provision to depart from the plain meaning of

the text of that provision. See Ratzlafv. United States, 510

U.S. 135, 147-148 (1994) (courts should “not resort to legis-

lative history to cloud a statutory text that is clear”).

16

Second, as the District of Columbia, Seventh, and

Eighth Circuits have all properly concluded, the dicta in a

footnote in Casey upon which the Second Circuit relied does

not warrant a different interpretation of IDEA’s fee-shift-

ing provision. In that footnote, the Court responded to an

argument made by respondent in that case by describing

the statement in the committee report relied on by the Sec-

ond Circuit as merely “an apparent effort to depart from

ordinary meaning and to define a term of art.” 499 U.S. at

92 n.5. But in light of the plain meaning of the statutory

text, “this ‘apparent effort’ to define a term of art in legisla-

tive history is an unsuccessful one.” Neosho, 315 F.3d at

1032; accord LaGrange, 349 F.3d at 482; Goldring, 416 F.3d

at 75. The statement simply does not constitute the type of

“explicit authority” required to allow an award of expert

fees beyond the limitations of the general cost statutes.

Casey, 499 U.S. at 86-87; Neosho, 315 F.3d at 1031.

The Second Circuit’s effort to attach significance to the

fact that Justice Scalia was the author of the Casey footnote

is also without merit. Pet. App. 10a-lla. The opinion in

Casey was written for the Court, not a single Justice.

Nothing in the footnote indicates that the Court would

deem the committee report’s “apparent effort” to supple-

ment the statutory text to have been a successful effort. To

the contrary, the Court in Casey made clear that it is im-

proper even to look to legislative history where, as there

and here, a statutory term is unambiguous. See 499 U.S. at

99-100. This case involves precisely the same statutory

terms and calls for the same result.

Third, the Second Circuit further erred by concluding

that it was “reasonable to infer that Congress, on the basis

of the Supreme Court’s decision in Casey, saw no need to

amend the IDEA because the Court had recognized that, in

enacting the IDEA, Congress had sufficiently indicated in

17

the Conference Committee Report that prevailing parties

could recover expert fees under the Act.” Pet. App. 10a.

As the District of Columbia Circuit pointed out in Goldring,

it is more reasonable to infer from Congress’s failure to

amend IDEA’s fee-shifting provision following Casey that

“Congress had no intention of allowing recovery of expert

fees under the IDEA.” 416 F.3d at 76. This is so because

(1) at most, Casey stated that the committee report was

only an “apparent effort” by the congressional committee

to depart from the ordinary meaning of the statutory

phrase “attorneys’ fees as part of the costs”; (2) Casey did

not include IDEA as an example of a statute that authorizes

the shifting of both attorney’s fees and expert fees; and (3)

“the version of section 1988 construed in Casey is nearly

identical to section 1415.” /bid.'

* The court of appeals’ inference is belied further by the fact that

Congress, in 2004, considered but did not adopt a bill (the Fairness and

Individual Rights Necessary to Ensure a Stronger Society: Civil Rights

Act of 2004) that would have amended IDEA and numerous other civil

rights statutes to explicitly authorize an award of expert fees. See S.

2088, 108th Cong. 2d Sess. (2004); H.R. 3809, L0&th Cong. 2d Sess.

(2004). The bill explained that its purpose was, inter alia, “to allow re-

covery of expert fees by prevailing parties under civil rights fee-shifting

statutes” and that this purpose was “made necessary by the decision of

the Supreme Court in |Casey|.” See S. 2088, supra, §§ 521, 522(1).

Specifically, it would have provided that “Section 615(i)(3)(B) of the

Individuals with Disabilities Education Act (20 U.S.C. 1415(i)(3)(B)) is

amended by inserting ‘(including expert fees)’ after ‘attorney's fees.”

S. 2088, supra, § 523(e). If, as the Second Circuit posited below, Con-

gress already allowed for the recovery of expert fees under IDEA’s fee-

shifting provision, then Congress would have had no need to include

IDEA among the civil rights statutes to be amended by the bill. That

bill expired at the end of the 108th Congress. Congress remains free

to address this issue as it sees fit, but this Court should resolve the

circuit split on the meaning of IDEA’s existing fee-shifting provision.

18

Finally, the Second Circuit’s reliance on IDEA’s pur-

pose of ensuring that all children with disabilities obtain a

free appropriate public education is misplaced. Pet. App.

lla-12a. As the District of Columbia Circuit explained,

where, as here, the language of the statute is clear, such

policy arguments are insufficient to overcome the express

intent of Congress. Goldring, 416 F.3d at 76-77. Indeed, in

recently holding that parents who initiate due process hear-

ings under the IDEA bear the burden of proving their

claims, this Court emphasized that “the touchstone of our

inquiry is, of course, the statute,” and found no reason to

depart from the ordinary rule that the burden of proof falls

on the party seeking relief. Schaffer, 126 S. Ct. at 534. So

too, there is no reason to depart from ordinary rules of stat-

utory interpretation here. That is particularly true given

that one of the goals of IDEA, and a key objective of the

2004 Amendments to IDEA, is to reduce the litigation costs

for schools under the Act. See Schaffer, 126 S. Ct. at 535

(discussing the Individuals with Disabilities Education Im-

provement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647).

Holding that the Act authorizes the award of expert fees

would have precisely the opposite effect.

C. The Grant Of Certiorari Should Be Limited To The First Ques-

tion Presented By The Petition

The petition for a writ of certiorari states two questions:

(1) whether IDEA’s fee-shifting provision authorizes a

court to award “‘expert’ fees”; and (2) whether IDEA’s fee-

shifting provision authorizes a court to award fees “for the

services for an ‘educational consultant.’” Pet. i. There is no

reason, however, to parse out two conceptually distinct

questions in this case. The question on which the circuits

are split and that warrants resolution by this Court is

whether IDEA’s fee-shifting provision authorizes reim-

19

bursement of expert fees to prevailing parents. That issue

is squarely presented by the Second Circuit’s decision in

this case holding that respondents are entitled to recover

fees for expert services provided by Arons. See Pet. App.

8a (“Congress intended to and did authorize the reimburse-

ment of expert fees in IDEA actions”).

Petitioner argues (Pet. 25-28) that the court of appeals’

decision encourages the unauthorized practice of law by

allowing an award of expert fees for the services of a non-

lawyer educational consultant and that the court erred be-

eause Arons’s “special knowledge or training” was never

formally established. Those arguments do not support a

separate question presented, nor do they warrant this

Court’s review. The court of appeals below rejected any

fees for Arons’s services as a non-attorney advocate, Pet.

App. 4a-5a, 38a-43a, and respondents have not challenged

that aspect of the court’s decision. In any event, the ques-

tion whether the courts below drew the appropriate line

between expert consultation services and non-attorney ad-

vocate services, or whether the courts properly found that

Arons possessed “special knowledge or training” related to

the services she provided, are fact-bound and do not impli-

cate any conflict among the circuits. Accordingly, those

questions do not warrant further review.

* In Arons v. Office of Disciplinary Counsel, 531 U.S. 1034 (2000),

this Court called for the views of the Solicitor General on whether

IDEA, 20 U.S.C. 1415(h)(1), establishes a federal right to non-lawyer

representation in due process hearings. The case arose after state

authorities instituted proceedings against an expert consultant

(Marilyn Arons) for the unauthorized practice of law. The United

States responded that, consistent with the longstanding position of the

Department of Education, States that accept funds under IDEA are

required to allow qualified non-lawyers to represent parents at due

process hearings. See No. 00-509 U.S. Br. 9-12. That issue is not

presented by this case, which, as discussed, involves the question

20

CONCLUSION

The petition for a writ of certiorari should be granted

limited to the first question presented.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

WAN J. KiM

KENT D. TALBERT ‘bone ae

Acting General Counsel Assistant Attorney General

? ; GREGORY G. GARRE

Department of Education Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

DAVID K. FLYNN

CONOR B. DUGAN

Attorneys

DECEMBER 2005

whether prevailing parents may be awarded fees under IDEA for

expert consulting (but not advocate) services.