Amicus Brief — Arlington Central School Dist. Bd. of Ed. v. Murphy

FEB 2 1 2006

| REESE |

No. 06-18 U.S.

a ED

In the Supreme Court of the United States

BEST AVAILABLECOPY =f FiteQ

|

ARLINGTON CENTRAL SCHOOL DisTRICT

BOARD OF EDUCATION, PETITIONER

Vv. |

PEARL MURPHY, ET VIR

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

— D. | Wan J. Kim

cting General , Assistant Attorney General

Department of Eduction GasoonyG. Gana

oe Deputy Solicitor General

DAVID B. SALMONS ,

Assistant to the Solicitor

General

DAVID K. FLYNN

DENNIS J. DIMSEY

Conor B. DUGAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the fee-shifting provision of the Individuals

with Disabilities Education Act, 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.

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TABLE OF CONTENTS

Page

Interest of the United States .............. cece eccescees 1

PE ain oddecddace ch eion seduced cvendesebacsedass tes 2

IIE 5 5. 6 vesevacecvecncechiavesesbevuae’ 6

Argument:

IDEA’s fee-shifting provision does not authorize an

NE Sic hvac dime dcdehsdesedersseenssys )

A. The plain meaning of IDEA’s fee-shifting

provision prohibits the award of expert fees ....... i)

B. This Court’s decisions compel the plain-meaning

construction of IDEA’s fee-shifting provision ..... 13

C. The court of appeals erred in rejecting the plain

reading of IDEA’s fee-shifting provision ......... 16

Es cue daentecudadccteedevaeievass nus ecuced 24

TABLE OF AUTHORITIES

Cases:

Bankston v. Illinois, 60 F.3d 1249 (7th Cir. 1995) ...... 13

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

Barnhill v. Johnson, 503 U.S. 393 (1992) .............. 17

Board of Educ. v. Rowley, 458 U.S. 176 (1982) ........ 1,13

Buckhannon Bd. & Care Home, Inc. v. West Virginia

Dep't of Health & Human Res. , 532 U.S. 598 (2001) .. 22

Cedar Rapids Cmty. Sch. Dist. v. Garret F..,

Re IE 0.55 buc besus ce conscers Ongeh das 1,

Central Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164 (1994) ..........

Cone .ccut Natl Bank v. Germain, 503 U.S. 249

GENE nosed ccnceeeedsoncccdecuucteeseessereceenes

(IIT)

9

IV

Cases—C ontinued: Page

Crawford Fitting Co. v. J.T. Gibbons, lic.,

GS Ue Ge GREE a wb inceecdedasddvescasaass 6, 11,14

Department of the Interior v. Klamath Water Users

Protective Ass'n, 582 U.S. 1(2001) ...........0eeeee 20

Davis v. Michigan Dep't of Treasury, 489 U.S. 803

GRR |. ds citdendcestebiciieiitewenetienioe 17

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

Gs: GR Ge wn pcine cascxnueyacne 15, 16, 17, 18, 21, 22

Gray v. Phillips Petroleum Co., 971 F.2d 591

CRS GD. bac enrkisckucsbetvabensees 12

Holland v. Valhi, Inc., 22 F.3d 968 (10th Cir. 1994) ..... li

Lamie v. United States Tr., 540 U.S. 526 (2004) ...... 7,10

Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,

fe f 7 lt & | ACS eTT TTT Teter oT 4

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

GEGEN Kdiedccéecscuscvéctiveceesueees 16, 17, 18

Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.,

GP Tee SC 6 60 Kkcsvsddnwccaedusetens sauuss 10

Pennhurst State Sch. & Hosp. v. Halderman,

GES Uae © CREE 06 40b0ks isc ccckcateesasbeeshetes 13

Ratzlafv. United States, 510 U.S. 135 (1994) .. 2.2.2... 17

Schaffer v. Weast, 126 S. Ct. 528 (2005) ........ 1,8, 13, 23

Smith v. Robinson, 468 U.S. 992 (1984) ............65. 19

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

(UEC SEED occancwevasevascbeceueabeeues 16,17, 18

Tyler v. Union Oil Co., 304 F.3d 379 (Sth Cir. 2002) .... 18

United States v. Albertini, 472 U.S. 675 (1985) . 2.02.6... )

West Va. Univ. Hosps., Ine. v. Casey, 499 U.S. 88

CRUUED ccctcccccecccevcssascsccduuscevesenes passim

Constitution and statutes: Page

U.S. Const. Art. I, § 8, Cl. i (Spending Clause) ....... 6, 13

Family and Medical Leave Act of 1993, 29 U.S.C. 2617 .. 21

Freedom of Access to Clinic Entrances Act of 1994,

a a i 21

Handicapped Children’s Protection Act of 1986,

Pub. L. No. 99-372, 100 Stat. 706 ...........ccccceees 5

Individuals with Disabilities Education Act,

EE eek adhered ibied aekdusnenes 2

nt webenses 2,

LEE 2

EET AE eR 2

I a I a ae a eer ID ll

ao os in cid coed 2

I oe te 2

IEE OE aE Oe 2

EE RD Oe 2

20 U.S.C. 141i 3B) (1997) ...............2005- vf)

20 U.S.C. 1415(i)(3)(B) ............ 1, 3, 4, 6, 9, 10, 11

i ED 66 ccs dasveseesevoece 10, 11

ES EE a ne EO 4

i a i ag 1

Individuals with Disabilities Act of 2004, Pub. L. No.

EE ee ae 3, 23

§ 615, 118 Stat. 2724 (to be codified at

Ds oc oie occu devevgesdeoes 3

ee i, ads ceues 6, 12, 14, 15

i tthe ee ad dees eadebdect< 6, 11, 12, 14, 15

i ccceebspevneddbececess eeeeteess 12,14

Statutes—Continued: Page

GE ENED “neevncnescsddccsosesceceneenesi 14

GP EE bb dbdeKcesspesenecsdoseves 4, 5, 7,9, 14, 15

Se As UD ~ 2s bh fpdvndsqendduscsocebdwenee )

Miscellaneous:

132 Cong. Rec. (1986):

EE tL debcevdauscenpiedsabdcehdsisakunseedats 19

PE éudey guadésineare hboueesistésutantadwaes 19

OS INDIE Seeley oR SIGN ARR P COPY yas a6 19

H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess.

DE: sudehtiahdien cduceadad sateewestene aces 5, 17,19

H.R. Rep. No. &i), 103d Cong., Ist Sess. (1993) ........ 21

H.R. Rep. No. 488, 103d Cong., 2d Sess. (1994) ......... 21

H.R. 3809, 108th Cong., 2d Sess. (2004) ................ 22

S. 2088, 108th Cong., 2d Sess. (2004) .................. 22

In the Supreme Court of the Anited States

“~

No. 05-18

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION, PETITIONER

Uv.

PEARL MURPHY, ET VIR

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether the fee-

shifting provision of the Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. 1415(i3)(B), which

allows the court to “award reasonable attorneys’ fees as

part of the costs” to the prevailing party in an IDEA

action, authorizes an award of expert fees. The Depart-

ment of Education administers IDEA, and has authority

to promulgate regulations necessary to ensure compli-

ance with the Act. See 20 U.S.C. 1417. The United

States has participated as an amicus in numerous cases

involving the construction of IDEA. See, e.g., Schaffer

v. Weast, 126 S. Ct. 528 (2005); Cedar Rapids Cmty.

Sch. Dist. v. Garret F., 526 U.S. 66 (1999); Board of

(1)

2

Educ. v. Rowley, 458 U.S. 176 (1982). At the Court’s

invitation, the United States filed a brief at the petition

stage of this case.

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

disabilities. Under IDEA, a State participating in the

grant program must ensure that each child with a dis-

ability receives 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), 1412(a)(1)(A). Loeal school sys-

tems are required to develop an individualized education

program (IEP) for each child with a disability in accor-

dance 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 educa-

tional agency, and they are entitled to “an impartial due

process hearing” conducted “by the State educational

agency or by the local educational agency.” 20 U.S.C.

1415(b)(6) and (f)(1). Among other procedural safe-_

guards at the hearing, IDEA grants parents the “right

to be accompanied and advised by counsel and by indi-

viduals with special knowledge or training with respect

to the problems of children with disabilities.” 20 U.S.C.

1415(h)(1). 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(i2)(A).

3

Parents who prevail in an action brought under

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

shifting provision states:

In any action or proceeding brought under this sec-

tion, the court, in its discretion, may award reason-

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

of a child with a disability who is the prevailing

party. ,

20 U.S.C. 1415(i)(3)(B) (2000) (emphasis added). In

practice, attorneys’ fees have been awarded both when

parents prevail before an administrative hearing and

when they prevail in a civil action.’

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

ability covered by IDEA. In 1999, after adminis-trative

proceedings before a state agency, they commenced this

action pro se in federal district court pursuant to IDEA,

alleging that petitioner had failed to provide a “free ap-

propriate 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. App. 2a-3a. Respondents prevailed in the district

court, and the Second Circuit affirmed that judgment.

Id. at 3a.”

' IDEA was reauthorized and amended in numerous respects in

2004. See Pub. L. No. 108-446, 118 Stat. 2647. The fee-shifting pro-

vision in the 2004 Act, however, is not materially different. It reads:

“In any action or proceeding brought under this section, the court, in its

discretion, may award reasonable attorney's fees as part of the costs *

* * to a prevailing party who is the parent of a child with a disability.”

Pub. L. No. 108-446, § 615, 118 Stat. 2724 (to be codified at 20 U.S.C.

1415(ix3)B)). Unless otherwise indicated, citations are to the statute

as it existed prior to the 2004 amendments.

* 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

4

The case returned to the district court and respon-

dents 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 hearing until they became

“prevailing parties” in 2000 when the district court en-

tered 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. The court thus distin-

guished between fees for expert consulting services,

which it held are compensable under IDEA’s fee-shift-

ing provision, and fees for expert advocacy and repre-

sentation services, which it held are not compensable.

Applying that understanding, the court awarded respon-

dents $8650 in expert fees for Arons’s services. /d. at

da-6a, 41a-43a.

3. Petitioner appealed, and the court of appeals af-

firmed. Pet. App. la-16a. The court acknowledged that,

in West Virginia University Hospitals, Inc. v. Casey,

499 U.S. 83 (1991), this Court held that virtually identi-

cal fee-shifting 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’ indi-

cating that Congress intended for that sort of

stay-put provision, 20 U.S.C. 1415(j), 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 the

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

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

5

fee-shifting.” Pet. App. 9a (quoting Casey, 499 U.S. at

87). The court of appeals, however, concluded that Con-

gress intended expert fees to be compensable under

IDEA based on a statement in the House Conference

Committee Report on IDEA’s predecessor, the Handi-

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

99-372, 100 Stat. 796—-namely, that “[t]he conferees in-

tend that the term ‘attorneys’ fees as part of the costs’

include reasonable expenses and fees of expert wit-

nesses and the reasonable costs of any test or evaluation

which is found to be necessary for the preparation of the

... case.” Pet. App. 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 Sec-

tion 1988 as construed in Casey. /bid. (quoting Casey,

499 U.S. at 92 n.5).

The court of appeals also found it “instructive” that

after Casey, Congress amended Section 1988 to allow

recovery 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, Con-

gress had sufficiently indicated in the Conference Com-

mittee Report that prevailing parties could recover ex-

pert 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 dis-

6

abilities obtain a free appropriate public education. /d.

at lla-12a.

SUMMARY OF ARGUMENT

The court of appeals erred in concluding that IDEA’s

fee-shifting provision authorizes an award of expert fees

in addition to attorneys’ fees.

A. IDEA’s fee-shifting provision unambiguously an-

swers the question presented by this case. The provi-

sion allows a court, “in its discretion,” to “award reason-

able attorneys’ fees as part of the costs” to the prevail-

ing party parents in an IDEA action. 20 U.S.C.

1415(i)(3)(B). The text nowhere mentions expert fees;

rather, it explicitly states that only those fees generated

by attorneys are recoverable under IDEA. Further-

more, the term “costs” cannot reasonably be construed

to include “expert fees.” The costs that cen be taxed in

the federal court system are statutorily defined in 28

U.S.C. 1920 and do not include general expert fees. The

fact that IDEA is Spending Clause legislation also coun-

sels against the court of appeals’ reading of the Act, be-

cause, as this Court has repeatedly held, Spending

Clause legislation may not be interpreted to impose un-

stated burdens on States that accept the federal monies

to which strings are attached.

B. A plain-meaning construction of IDEA’s fee-shift-

ing provision is also compelled by this Court’s decisions

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

437 (1987), and West Virginia University Hospitals,

Ine. v. Casey, 499 U.S. 83-1991). In Crawford, this

Court stated that “explicit statutory or contractual au-

thorization” was required to allow a court to tax ex-

penses beyond those listed in 28 U.S.C. 1821 and 1920.

Crawford, 482 U.S. at 445. In Casey, this Court inter-

7

preted language in 42 U.S.C. 1988 virtually identical to

that at issue here and held that neither the use of the

phrase “attorney’s fee” nor the use of the term “costs”

provided the “explicit authorization” necessary to award

expert fees to the prevailing party in civil rights litiga-

tion. As the Court explained, to hold otherwise would

render “dozens of statutes” explicitly referring to both

“attorney’s fees” and “expert fees” an “inexplicable ex-

ercise in redundancy.” Casey, 499 U.S. at 92. Because

IDEA’s fee-shifting language is virtually identical to the

language at issue in Casey, it follows, a fortiori, that

IDEA lacks the necessary “explicit statutory authoriza-

tion” to award expert fees.

C. None of the secondary considerations on which

the court of appeals relied provides any basis for depart-

ing from the statute’s unambiguous text. As this Court

has made clear, courts should not resort to committee

reports to cloud clear statutory language. See Lamie v.

United States Tr., 540 U.S. 526, 534 (2004). The Second

Circuit was therefore fundamentally mistaken in con-

cluding that a statement in a committee report could

trump IDEA’s clear and unambiguous text.

Nor does the Casey footnote on which the Second

Circuit relied call for any different result. That footnote

did not endorse any particular reading of IDEA’s fee-

shifting provision, nor did it endorse the view that

IDEA’s legislative history could or did provide the req-

uisite “explicit authorization” to award expert fees. It

merely cited the committee report as evidence of an “ap-

parent” attempt by some legislators to authorize an

award of expert fees. 499 U.S. at 92 n.4. But that effort,

while apparent, was unsuccessful. In Casey itself, this

Court admonished that the “statutory text adopted by

both Houses of Congress and submitted to the Presi-

8

dent” may not be “expanded * * * by the statements of

* * * committees during the course of the enactment

process.” /d. at 98-99

Congress’s refusal to amend IDEA’s fee-shifting pro-

vision in the wake of Casey also does not support the

court of appeals’ construction. Congressional inaction

provides no more basis to depart from the unambiguous

text of IDEA than does a committee report. In any

event, if anything, the fact that Congress has not

amended IDEA in the wake of Casey to authorize the

award of expert fees only underscores the conclusion

that Congress has not sanctioned such fees. After

Casey, Congress amended several other civil rights stat-

utes to explicitly authorize the award of expert fees in

addition to attorneys’ fees. In addition, during this pe-

riod, Congress amended IDEA— including its fee-shift-

ing provision—multiple times in other respects. The

legislative record therefore strongly supports the con-

clusion that Congress does not wish to authorize the

award of expert fees in addition to attorneys’ fees for

IDEA.

The Second Circuit’s reliance on the purposes of

IDEA to justify its conclusion that expert fees are re-

coverable is similarly unavailing. Just as a court should

not examine legislative history where the statutory lan-

guage is clear, so too a court should not rely upon policy

arguments where the meaning of the statute is plain.

That is especially true here. As this Court recently

noted in Schaffer v. Weast, 126 S. Ct. 528, 535 (2005),

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

in order to reduce its administrative and litigation-re-

lated costs.” The Second Circuit’s decision, however,

would increase litigation-related costs under IDEA and

thus directly contravene Congress’s intent.

ARGUMENT

IDEA’S FEE-SHIFTING PROVISION DOES NOT AUTHORIZE

AN AWARD OF EXPERT FEES

In West Virginia University Hospitals, Ine. v.

Casey, 499 U.S. 83 (1991), this Court held that expert

fees were not authorized by the then-current fee-shift-

ing provision of 42 U.S.C. 1988, which permitted the

award of “a reasonable attorneys’ fee as part of the

costs.” 42 U.S.C. 1988(b) (1988). The question pre-

sented in this case is whether a virtually identical fee-

shifting provision in IDEA permits the award of expert

fees. 20 U.S.C. 1415(i)(3)(B) (1997) (“In any action or

proceeding brought under this section, the court, in its

discretion, may award reasonable attorneys’ fees as part

of the costs to the parents of a child with a disability who

is the prevailing party.”). The Second Circuit answered

that question in the affirmative. As explained below,

that decision is contradicted by the text of IDEA, the

record of statutory usage concerning fee-shifting provi-

sions, and this Court’s decisions, including, most nota-

bly, Casey.

A. The Plain Meaning Of IDEA’s Fee-Shifting Provision

Prohibits The Award Of Expert Fees

This Court has “stated time and_again that courts

must presume that a legislature says in a statute what

it means and means in a statute what its says there.”

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-

254 (1992). Accordingly, any construction of 20 U.S.C.

1415(i)(3)(B) “must begin with the language employed

by Congress and the assumption that the ordinary

meaning of that language accurately expresses the legis-

lative purpose.” United States v. Albertini, 472 U.S.

10

675, 680 (1985) (quoting Park ‘N Fly, Ine. v. Dollar Park

& Fly, Inc., 469 U.S. 189, 194 (1985)). When that “lan-

guage is plain, the sole function of the courts—at least

where the disposition required by the text is not ab-

surd—is to enforce it according to its terms.” Lamie v.

United States Tr., 540 U.S. 526, 534 (2004).

The text of IDEA unambiguously authorizes the

award of attorneys’ fees—not expert fees—to parents

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 tell-

ing. First, at the time IDEA was enacted, “neither stat-

utory nor judicial usage regarded the phrase ‘attorney’s

fees’ as embracing fees for experts’ services.” Casey,

499 U.S. at 97. Rather, the phrases “attorneys’ fees”

and “expert fees” described different categories of liti-

gation expenses. Second, as this Court explained in

Casey, Congress knows how to expressly authorize the

award of both “attorney’s fees” and “expert fees” when

it wants to, and has done so in numerous other statutes.

See Casey, 499 U.S. at 89 (noting that “[a]t least 34 stat-

utes in 10 different titles of the United States Code ex-

plicitly shift attorney’s fees and expert witness fees”);

id. at 89-90 n.4 (listing statutory provisions). By using

the phrase “attorneys’ fees” in Section 1415(i)(3)(B),

Congress therefore unambiguously directed that only a

certain type of fees, namely, those generated by the

work of an attorney, would be recoverable in an IDEA

action.

That conclusion is bolstered by Section

1415(i)(3)(F )—entitled “Reduction in amount of attor-

neys’ fees”—which directs a court to reduce “the amount

of attorneys’ fees awarded under this section” whenever

11

it finds certain specified facts that are explicitly directed

to “attorneys” and “legal services.” 20 U.S.C.

1415(i)(3)(F ). There is no reference to “experts” or “ex-

pert services” in the provision, or anywhere else in the

statute. If Congress had intended its reference to “at-

torneys’ fees” in Section 1415(i)(3)(B) to authorize the

reimbursement of both attorneys’ fees and expert fees,

there is no reason to believe that Congress would have

gone to such great lengths in Section 1415(i)(3)(F) to

specify the circumstances in which an award of aftor-

neys’ fees should be reduced but to have remained silent

as to expert fees. Indeed, because only attorneys’ fees

and “legal services” are made subject to reductions un-

der Section 1415(i)(3)(F), the court of appeals’ rule

would place expert fees in a favored position over the

textually-specified attorneys’ fees.”

Nor.does Section 1415(i)(3)(B)’s reference to “costs”

provide any support for the court of appeals’ conclusion.

The term “costs” in Section 1415(i)(3)(B) cannot be in-

terpreted without regard to the immediately preceding

phrase “attorneys’ fees,” and, in any event, “costs” can-

not be read 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, and are

strictly construed. See Crawford Fitting Co. v. J.T. Gib-

bons, Inc., 482 U.S. 437, 445 (1987); Casey, 499 U.S. at

86-87. The only recoverable costs that could potentially

* Moreover, Congress specifically considered the role of experts in

IDEA disputes and provided in Section 1415(b)(1) that parents,

regardless of whether they prevail in their challenge to the school’s

individual education program, may obtain an independent, expert edu-

cational evaluation of the child at public expense. 20 U.S.C. 1415(b)(1).

That Congress did not further provide for the recovery of other expert

fees is strong evidence that no such recovery was intended.

12

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, ie., travel expenses and a per

diem of $40 for witnesses. The expert fees at issue in

this case are for consulting services, not for appearance

as a witness, and were not capped at $40 per diem. Be-

cause expert consulting fees are neither attorneys’ fees

nor costs, they cannot come within IDEA’s authorization

for recovering “attorneys’ fees as part of the costs.”"

Thus, if Congress intended in IDEA to depart from

the statutory meaning of costs in Section 1920 to allow

for the recovery of expert fees, it would have either de-

fined costs to include expert and attorneys’ fees or

stated that “attorneys’ fees” and “expert fees” could be

awarded as part of the costs. Instead, Congress chose

to include only the term “attorneys’ fees.” The plain

meaning of IDEA’s fee-shifting provision therefore pre-

cludes the award of expert fees to the prevailing party

in an IDEA action. Congress said that courts could

award only “attorneys’ fees as part of the costs” in

IDEA actions, and the strong presumption is that Con-

gress meant what it said.”

' While the difference between expert consulting and testifying

services may affect the availability of costs pursuant to 28 U.S.C. 1821

(insofar as Section 1821 authorizes a $40 per diem for witnesses), it does

not affect the availability of expert fees under IDEA’s fee-shifting

provision, which authorizes no expert fees.

” Courts of appeals have interpreted almost identical language in

other statutes to preclude the recovery of expert fees. For instance,

various courts have held that the Age Discrimination in Employment

Act (ADEA) and the Fair Labor Standards Act of 1938 (FLSA)

preclude the recovery of expert fees. See, ¢.g.. Gray v. Phillips

Petroleum Co., 971 F.2d 591, 592, 594 (10th Cir. 1992) (holding that

FLSA’s language allowing court to grant “a reasonable attorney's fee

13

The conclusion that Congress did not intend ‘‘attor-

neys’ fees” to include “expert fees” is further buttressed

by the settled background principles against which

IDEA must be construed. 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 Cmty.

Sch. Dist. v. Garret F., 526 U.S. 66, 83 (1999) (Thomas,

J., joined by Kennedy, J., dissenting) (“[blecause IDEA

was enacted pursuant to Congress’ spending power, our

analysis of the statute in this case is governed by special

rules of construction”) (internal citation omitted). Given

this Court’s repeated admonition that “if Congress in-

tends 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 be no basis to hold that, in the face of statutory

and regulatory silence, IDEA nevertheless conditions

federal funds on the requirement that States may be

required to divert money from educational services to

pay expert fees in addition to attorneys’ fees.

B. This Court's Decisions Compel The Plain-Meaning Con-

struction Of IDEA’s Fee-Shifting Provision

A plain-meaning interpretation of the fee-shifting

provision is compelled by this Court’s decisions in

Crawford and Casey. In Crawford, this Court addressed

the question of the “power of federal courts to require a

* * * and costs of the action” did not allow recovery of expert fees);

Tyler v. Union Oil Co., 304 F.3d 379, 405 (5th Cir. 2002) (ADEA and

FLSA); Bankston v. [1linois, 60 F 3d 1249, 1257 (7th Cir. 1995) (FLSA);

Holland v. Valhi, Luc., 22 F 3d 968, 979-980 (Oth Cir. 1994) (ERISA).

14

losing party to pay the compensation of the winner’s

expert witnesses.” 482 U.S. at 438. The Court noted

that 28 U.S.C. 1920 embodied “Congress’ considered

choice as to the kinds of expenses that a federal court

may tax” and that among the costs that could be taxed

were “|fjees and disbursements for printing and wit-

nesses.” 482 U.S. at 440. The witness fee specified in 28

U.S.C. 1920(3) was set out in 28 U.S.C. 1821 and, at that

time, limited reimbursement to $30 per day. 482 U.S. at

441. The petitioners argued that Section 1920 did not

“preclude taxation of costs above and beyond the items

listed, and more particularly, amounts in excess of the

§$ 1821(b) fee.” /bid. The Court rejected that view, stat-

ing that the petitioners’ view would render Section 1920

“superfluous.” /bid. It held that “absent explicit statu-

tory or contractual authorization for the taxation of ex-

penses of a litigant’s witness as costs, federal courts are

bound by the limitations set out in 28 U.S.C. § 1821 and

§ 1920.” Jd. at 445.

In Casey, the Court addressed the virtually identical

fee-shifting language in the then-current version of 42

U.S.C. 1988. See 42 U.S.C. 1988 (1988) (authorizing the

award of “a reasonable attorney’s fee as part of the

costs”). The Court explained that Sections 1920 and

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

shift litigation costs absent express statutory authoriza-

tion to go further.” Casey, 499 U.S. at 86. Section 1920

is “an express limitation upon the types of costs which,

absent other authority, may be shifted by federal

courts.” 499-U.S. at 87 (citing Crawford, supra). Be-

cause 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.” /bid.

15

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

plicit statutory authority” is necessary to overcome Sec- -

tion 1821's limitation on fees for such experts. /bid.

Thus, the Court held, the term “costs” does not include

fees for experts who do not testify, nor does it include

fees for a testifying expert in excess of those provided

by Section 1821. /d. at 87 & n.3.

The Court next rejected the notion that the term “at-

torney’s fee” in Section 1988 provides the requisite “ex- -

plicit statutory authority” for a district court to award

both testimonial and nontestimonial expert fees. Casey,

499 U.S. at 87. The Court explained that “[t]he record

of statutory usage demonstrates convincingly that attor-

ney’s fees and expert fees are regarded as separate ele-

ments 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 redundancy.” /d. at 92. In addi-

tion, when Congress enacted Section 1988, court cases

showed that expert fees were not considered an element

of attorneys’ fees. /bid. The Court also rejected peti-

tioner’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

provision (“attorneys’ fees as part of the costs”) is iden-

tical to the statutory language at issue in Casey, Casey

compels the conclusion that IDEA’s fee-shifting provi-

sion does not authorize reimbursement for expert fees.

See Goldring v. District of Columbia, 416 F.3d 70, 73

16

(D.C. Cir. 2005) (“{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”); T7.D. v. LaGrange Sch. Dist.

No. 102, 349 F.3d 469, 482 (7th Cir. 2003) (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 ex-

plicit statutory authorization”); Neosho R-V Sch. Dist.

v. Clark, 315 F.3d 1022, 1032-1033 (8th Cir. 2003) (noting

that Casey “specifically indicated that the term ‘costs’

should be construed narrowly as not including expert

witness fees”).

C. The Court Of Appeals Erred In Rejecting The Plain

Reading Of IDEA’s Fee-Shifting Provision

In concluding that IDEA nevertheless authorizes the

award of expert fees, the Second Circuit relied on legis-

lative history, congressional inaction, and its view of the

general purposes of IDEA. None of those secondary

considerations, however, provides any basis for disre-

garding the plain meaning of the statute and clear im-

port of this Court’s decisions.

1. As noted above, a conference committee report

accompanying the 1986 statute that added IDEA’s fee-

shifting provision stated that “|t]he conferees intend

that the term ‘attorneys’ fees as part of the costs’ in-

clude 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

17

* * * case.” H.R. Conf. Rep. No. 687, 99th Cong., 2d

Sess. 5 (1986). The Second Circuit concluded that this

legislative history compelled the conclusion that IDEA’s

fee-shifting provision authorized the award of expert

fees as wel! as attorneys’ fees. For several reasons, the

court’s reliance on that legislative history was seriously

misplaced.

Most fundamentally, recourse to legislative history

to determine whether Congress intended to shift expert

fees in IDEA “is simply unwarranted,” Goldring, 416

F.3d at 74, because, as the Court held in Casey, the rele-

vant text, “attorneys’ fees as part of the costs,” is clear

and unambiguous. See ibid.; LaGrange, 349 F.3d at 483;

Neosho, 315 F.3d at 1032. Courts should “not resort to

legislative history to cloud a statutory text that is clear.”

Ratzlaf v. United States, 510 U.S. 135, 147-148 (1994).

“Legislative history” is simply “irrelevant to the inter-

pretation of an unambiguous statute.” Davis v. Michi-

gan Dep't of Treasury, 482 U.S. 803, 809 n.3 (1989). And

“appeals to statutory history are well taken only to re-

solve ‘statutory ambiguity.’” Barnhill v. Johnson, 503

U.S. 393, 401 (1992). Because the statutory provision at

issue here is not ambiguous, the Second Circuit erred in

resorting to legislative history to depart from the plain

meaning of the text that Congress enacted."

" In Casey, this Court emphatically rejected a similar attempt to

expand the meaning of the phrase “reasonable attorneys’ fee as part of —

costs” by resort toa House Committee Report. As the Court observed,

the “best evidence” of Congress's intent is “the statutory text adopted

by both Houses of Congress and submitted to the President.” and

where, as here, that statutory language “has a clearly accepted meaning

in both legislative and judicial practice,” it cannot “be expanded or

contracted by the statements of individual legislators or committees

during the course of the enactment process.” 499 U.S. at 98-99.

18

Moreover, as the District of Columbia, Seventh, and

Eighth Circuits have all properly concluded, the fact

that this Court referred to the above-mentioned commit-

tee report in a footnote in Casey does not justify the

Second Circuit’s reading of IDEA’s fee-shifting provi-

sion. In that footnote, the Court responded in dicta to

the argument that the committee report informed the

proper construction of the »hrase “attorney’s fees” by

stating that the report represented “an apparent effort

to depart from ordinary meaning and to define a term of

art.” 499 U.S. at 92 n.5. The Court in no way opined

that the effort was a successful one. Rather, other lan-

guage in Casey affirms that the Court does “not permit

{unambiguous statutory text] to be expanded or con-

tracted by the statements of * * * committees during the

course of the enactment process.” /d. at 98-99. And,

therefore, most courts reading Casey as a whole have

concluded that “this ‘apparent effort’ to define a term of

art in legislative 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 bottom line remains

that a statement in a committee report 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

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

majority opinion in Casey was written for the Court, not

a single Justice. Nothing in the footnote indicates that

the Court considered the committee report’s “apparent

effort” to supplement the statutory text to have been a

successful effort. To the contrary, the Court in Casey

19

made clear that it is improper 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 in-

volves precisely the same statutory terms and therefore

calls for the same result.’

In any event, IDEA’s legislative history is itself far more am-

biguous than the Second Circuit recognized. First, the House

Conference Committee Report at issue states that “|t|he conferees

intend that the term ‘attorneys’ fees as part of the costs’ include reason-

able expenses and fees of expert iwitvesses and the reasonable costs of

any test or evaluation which is found to be necessary for the prepara-

tion of the * * * case.” H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess. 5

(1986) (emphasis added). Even if that report could somehow overcome

the plain meaning of the statutory text, it appears to relate only to the

services of expert witnesses, not expert consulting services of the type

at issue here. Second, it appears that a primary aim in enacting the fee-

shifting provision was respouding to this Court’s decision in Smith vy.

Robinson, 468 U.S. 992 (1984), which had held that prevailing parents

could not recover attorneys’ fees under the Education of the Handi-

capped Act or other civil rights statutes. See 132 Cong. Rec. 17,600

(1986) (statement of Rep. Beilenson) (noting that the section would

“overturn the decision of the Supreme Court in the case of Smith versus

Robinson,” which had “rendered courts unable to award attorneys’ fees

to families who sue school districts which fail to provide appropriate

educational opportunities for handicapped children”). The Smith case

involved a claim for attorneys’ fees and did not address the availability

of expert fees. Third, in contrast to the committee report relied on by

the court of appeals, there are numerous other statements in the

legislative history that support the plain meaning of “attorneys’ fees.”

See, ¢.g., ibid. (statement of Rep. Beilenson) (stating that the

Handicapped Children’s Protection Act of 1986 (HCPA) “would restore

the authority of courts to award fees for the services of attorneys—in

addition to other costs awarded”); ibid. (statement of Rep. Quillen)

(stating that the HCPA “authorize[s] the award of reasonable attorney

fees to prevailing parties”); 132 Cong. Rec. at 16,823 (statement of Sen.

Weicker) (stating that the HCPA allowed “the courts to award

attorneys’ fees to prevailing parents”); id. at 16,825 (statement of Sen.

Hatch) (stating that HCPA “provides for the award of reasonable

20

2. The Second Circuit’s reliance on Congress’s inac-

tion in the wake of Casey is similarly misplaced. The

Second Circuit concluded that it was “reasonable to in-

fer that Congress, on the basis of the Supreme Court’s

decision in Casey, saw no need to amend the IDEA be-

cause the Court had recognized that, in enacting the

IDEA, Congress had sufficiently indicated in the Con-

ference Committee Report that prevailing parties could

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

court therefore found it “instructive” that Congress

amended Section 1988 and Title VII in response to the

Casey decision in order to make expert fees compensa-

ble in civil rights actions, but “took no similar action

with respect to the IDEA.” J/bid. Congress’s inaction

provides no more authority to override unambiguous

statutory text than does affirmative legislative history.

In fact, it provides less. See Department of the Interior

v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 16

n.7 (2001) (noting that “as a general rule we are hesitant

to construe statutes in light of legislative inaction”);

Central Bank of Denver, N.A. v. First Interstate Bank

of Denver, N.A., 511 U.S. 164, 186-187 (1994) (warning

against reliance on legislative inaction). And, in any

event, the Second Circuit drew the wrong conclusion

from the inaction on which it focused.

attorney's fees to prevailing parents”). If, in fact, Congress intended

to deviate from normal usage and somehow expand the meaning of the

phrase “attorneys’ fees as part of the costs” to include expert fees, then

it would be reasonable to expect these legislators to comment on that

deviation. At most, this history reflects the very sort of imprecision

and contradiction that gives rise to the settled rule that where statutory

language is clear, legislative history provides no basis for overriding

that text.

21

As the District of Columbia Circuit pointed out in

Goldring, it is far more reasonable to infer from Con-

gress’s refusal to amend IDEA’s fee-shifting provision

following Casey that “Congress had no intention of al-

lowing 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 ordi-

nary 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

attorneys’ fees and expert fees; and (3) “the version of

section 1988 construed in Casey is nearly identical to

section 1415.” /bid.

Moreover, in addition to Section 1988 and Title VII,

Congress—in response to this Court’s decision in

Casey—has expressly authorized the award of expert

fees (in addition to attorneys’ fees) in the Family and

Medical Leave Act of 1993, 29 U.S.C. 2617, see H.R.

Rep. No. &(i), 103d Cong., Ist Sess. 48 (1993), and Free-

dom of Access to Clinic Entrances Act of 1994 (FACE),

18 U.S.C. 248, see H.R. Rep. No. 488, 103d Cong., 2d

Sess. 10 (1994). Congress amended IDEA’s attorneys’

fee provision in 1990 and 2004, but made no effort to

include language authorizing expert fees under IDEA.

These provisions provide further proof, if any were

needed, that Congress knows how to authorize the

award of expert fees to a prevailing party when it de-

sires to do so. Accordingly, if any inference can be

drawn from the fact that Congress has not amended

IDEA in the wake of Casey to authorize awards for ex-

22

pert fees, it is that Congress does not wish to sanction

such fee awards.”

3. The Second Circuit’s reliance on IDEA’s purpose

of ensuring that all children with disabilities obtain a

free appropriate public education is also misplaced. Pet.

~—App. lla-12a. As the District of Columbia Circuit ex-

plained, where, as here, the language of the statute is

clear, such policy arguments are insufficient to over-

come the express intent of Congress. Goldring, 416

F.3d at 76-77; see Buckhannon Bd. & Care Home, Tie.

v. West Va. Dep't of Health & Human Res., 532 U.S.

598, 610 (2001) (holding that “[tjo disregard the clear

legislative language and the holdings of our prior cases

on the basis of * *.* policy arguments would be” un-

* To the extent the Court is inclined to go down the path of drawing

inferences from congressional inaction, it must also account for 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 authorize an award of expert fees explicitly.

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

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

allow recovery 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, 52211). Specifically, it would have provided that “Section

615(i)(3)(B) of the Individuals with Disabilities Education Act (20 U.S.C.

1415(iX3)B)) is amended by inserting ‘(including expert fees)’ after

‘attorney's fees.’” S. 2088, supra, § 523(e). If, as the Second Circuit

posited below, Congress 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

hold that IDEA, as currently written, does not allow for the award of

expert fees.

23

warranted). In Casey, this Court rejected a similar ar-

gument “that the [remedial] purpose in enacting § 1988

must prevail over the ordinary meaning of the statutory

terms.” 499 U.S. at 98. As the Court put it, “Congress

could easily have shifted ‘attorney’s fees and expert wit-

ness fees,’ or ‘reasonable litigation expenses,’ as it did in

contemporaneous statutes; it chose instead to enact

more restrictive language, and we are bound by that

language.” Jd. at 99. That conclusion is equally true

here.

Indeed, in recently holding that parents who initiate

due process hearings under 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 statutory interpretation

here. That is particularly true given that one of the

goals of IDEA, and a key objective of the 2004 Amend-

ments to IDEA, is to reduce the litigation costs for

schools under the Act so that funding could be dedicated

to the delivery of educational services. See id. at 535

(discussing the Individuals with Disabilities Education

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

2647). Holding that the Act authorizes the award of ex-

pert fees would have precisely the opposite effect.

24

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

KENT D. TALBERT WAN J. KIM a

Acting General Counsel Assistant Attorney General

Department of Education GREGORY G. GARRE

Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

DAVID K. FLYNN

DENNISJ. DIMSEY

CONOR B. DUGAN

Attorneys

FEBRUARY 2006