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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United States
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 291

## Text

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

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|

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

iqyy ee ae 7

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Niet 4 ae Py

ea aie

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0201%3A02. Public record. Not legal advice.