United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 3, 2010 Decided January 28, 2011
No. 10-7019
MIKEISHA BLACKMAN, BY HER NEXT FRIEND MARY ANN
BLACKMAN, ET AL.,
APPELLEES
v.
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:97-cv-01629)
Stacy L. Anderson, Assistant Attorney General, argued the
cause for appellants. With her on the briefs were Peter J.
Nickles, Attorney General, Office of the Attorney General for
the District of Columbia, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General. Robert C.
Utiger, Attorney, entered an appearance.
Shannen W. Coffin argued the cause for appellees. With
him on the brief were Ira A. Burnim, Lindsey B. Lang, and
Angela L. Lipscomb.
Before: SENTELLE, Chief Judge, BROWN, Circuit Judge, and
WILLIAMS, Senior Circuit Judge.
2
Chief Judge SENTELLE filed an opinion announcing the
judgment of the Court.
BROWN, Circuit Judge, and WILLIAMS, Senior Circuit
Judge, each filed opinions concurring in the result.
SENTELLE, Chief Judge: The District of Columbia appeals
from an attorneys’ fee award pursuant to the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA).
The District contends, as it did in the district court, that the
amount of the fee award ($1,454,030.22) unlawfully exceeds the
statutory fee cap of $4000. The district court held that the
statutory fee cap of $4,000 was not applicable to a class action
as a whole, but instead limited fees to $4,000 for each individual
student in the class. For the reasons set forth below, we agree
and affirm the judgment of the district court.
Background
This appeal marks the latest—hopefully, the last or near
last—chapter in the saga stretching back at least forty years of
families with disabled children seeking free appropriate public
education from the District of Columbia with frequent repair to
administrative and judicial remedy. The history goes back at
least to Mills v. Board of Education of the District of Columbia,
348 F. Supp. 866 (D.D.C. 1972). Since Mills, the controversy
has evolved through both individual and class actions, most
recently in two consolidated class actions now before the court.
Because the present appeal concerns only the discrete question
of the propriety of the fee award, we will not rehash the
extended substantive litigation.
In furtherance of the objectives of the IDEA, Congress has
provided for the award of attorneys’ fees to prevailing parents
of children with disabilities. Specifically:
3
(i) IN GENERAL – In any action or proceeding brought
under this section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs–
(I) to a prevailing party who is the parent of a child with a
disability.
20 U.S.C. § 1415(i)(3)(B). In many of the numerous actions
against the District of Columbia, the courts awarded attorneys’
fees pursuant to the IDEA. Beginning in 1998, concerned about
the substantial cost to the District, Congress enacted a rider to
the FY 1999 annual appropriations act for the District of
Columbia instituting the first of a series of attempts at capping
the fees awarded. Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999, § 130, Pub. L. No.
105-277, 112 Stat. 2681, 2681-138 to 2681-139 (1998). That
first fee cap limited attorneys’ fee awards in actions against the
District of Columbia Public Schools under the IDEA to the rate
paid to appointed counsel representing indigent criminal
defendants in the District of Columbia. The fee cap was
continued in FY 2000 and FY 2001 without significant change.
Although Congress made further changes, the enactment
pertinent to this action came in legislation enacted for FY 2003
and subsequent years which departed from the formula tying the
awards to rates for appointed criminal counsel and instead set a
flat $4000 figure as the limitation for “the fees of an attorney
who represents a party in an action . . . under the Individuals
with Disabilities Education Act . . . .”1 2006 District of
1
The full text of the statute reads:
Sec. 122. (a) None of the funds contained in this Act may be
made available to pay -
(1) the fees of an attorney who represents a party in an action
4
Columbia Appropriations Act § 122 (a)(1); Pub. L. No. 109-115,
119 Stat. 2396, 2519 (2005), cont’d in effect, Revised
Continuing Appropriations Resolution, § 101(a)(9), Pub. L. No.
110-5, 121 Stat. 8, 9 (2007).
Although the fee cap was lifted for proceedings initiated
after the effective date of the 2009 appropriations act, the
current litigation spans the period of the effectiveness of the cap
legislation and is not affected by the termination of fee cap
requirements. Therefore, the question before us depends upon
construction of the fee cap legislation.
Plaintiffs initiated the Blackman class action litigation in
July of 1997, and the case was certified as a class action in
October of that year. It was subsequently consolidated with
another class action, Jones v. District of Columbia, in May of
1998. In June of 1998, the district court granted summary
judgment in plaintiffs’ favor in both consolidated actions, a
ruling that the District never challenged. Although that
summary judgment terminated the liability issues in plaintiffs’
favor, the litigation continued through years of negotiation of the
or an attorney who defends an action brought against the
District of Columbia Public Schools under the Individuals
with Disabilities Act (20 U.S.C. § 1400 et seq.) in excess of
$4,000 for that action; or
(2) the fees of an attorney or firm whom the Chief Financial
Officer of the District of Columbia determines to have a
pecuniary interest, either through an attorney, officer, or
employee of the firm, in any special education diagnostic
service, schools, or other special education service providers.
(b) In this section, the term “action” includes an
administrative proceeding and any ensuing or related
proceedings before a court of competent jurisdiction.
5
remedy phase, which finally produced a consent decree in 2006.
While the parties were able to reach consent with respect to the
remedy, the question of attorneys’ fees remained in dispute.
The District did not contest the claim of plaintiffs’ counsel
that attorneys’ fees were in order under the IDEA, but
vigorously disputed the amount of the award. The continuing
fee dispute involved two separate fee petitions. The first
petition sought attorneys’ fees for the nine-year period from the
start of the lawsuit through July 26, 2006. The parties agreed
that an uncapped computation of the awardable fees for this
period would amount to $1,820,000. The District, however,
contended that the $4000 statutory fee cap applied. The
plaintiffs contended, and the district court held, that the fee cap
did not limit fees payable by the District to $4,000 for the entire
class action. That is, the statute by its terms applied to the “fees
of an attorney who represents a party in an action . . . .” 2006
District of Columbia Appropriations Act § 122(a)(1) (emphasis
added). Therefore, the district court ruled that the statute did not
govern the fees of attorneys representing multiple members of
a class rather than a single party and that plaintiffs’ counsel
would be entitled to reasonable attorneys’ fees “so long as the
District’s payment of such fees does not exceed $4000 per
plaintiff class member.” Petties v. District of Columbia, 538 F.
Supp. 2d 88, 96-97 (D.D.C. 2008) (“2008 Fee Cap Decision”).
The District did not appeal the fee award.
The second of the two fee petitions gives rise to the present
appeal. In March of 2009, plaintiffs’ class counsel petitioned for
attorneys’ fees of $1,938,239.70 for monitoring and compliance
work from July 26, 2006, when the consent decree was
presented to the court, through December 31, 2008. During the
ensuing dispute over the amount of the fee and an exchange of
legal arguments, including a surreply by the District, the District
did not raise any argument regarding the fee cap. Nor did it
6
raise the issue in a hearing on the fee petition on September 16,
2009. Finally, the District raised the fee cap issue in a
supplemental opposition to plaintiffs’ request for fees on
October 27, 2009, arguing that the $4000 limitation applied to
the class action.
On January 4, 2010, the district court entered an order
awarding counsel fees in the amount of $1,454,032.22.
Blackman v. D.C., 677 F. Supp. 2d 169, 180 (D.D.C. 2010)
(“2010 Fee Award Decision”). The District filed the present
appeal from that order.
Analysis
The District’s appeal is based entirely on its construction of
the fee cap statute, which it contends caps the awardable fees in
this class action at $4000. Plaintiff-appellees respond that the
cap is inapplicable to class actions but governs only the fees of
an attorney representing a single party in an action against the
District. Before reaching the question of statutory interpretation,
we first consider briefly two other issues raised by appellees
which they contend preclude the adjudication of the District’s
argument.
First, appellees contend that the District’s argument is
barred by the law of the case. Appellees contend that the district
court’s adoption of their interpretation of the fee cap statute as
not applying to class actions in the 2008 Fee Cap Decision,
which was not appealed by the District, decides the question.
We note that the 2010 order under review did not use the phrase
“law of the case,” but did seem to invoke it by stating, “the
Court has already considered this argument and rejected it.”
2010 Fee Award Decision, 677 F. Supp. 2d at 180. Arguably
then, the principle of consistency underlying the law of the case
doctrine could be held to preclude the District’s argument in the
7
present case. See, e.g., Arizona v. California, 460 U.S. 605, 619
(1983) (“[A] fundamental precept of common law adjudication
is that an issue once determined by a competent court is
conclusive.”). However, the district court did not simply rely on
its prior ruling as establishing controlling law of the case, but
rather reiterated its prior reasoning in explaining that
“[d]efendants have given the Court no reason to change its
earlier ruling, and it will not do so.” 677 F. Supp. 2d at 180.
Upon de novo review, we reach a similar conclusion on the
appropriate construction of the fee cap statute.
Secondly, appellees implicitly argue in their briefing of the
law-of-the-case theory that the District did not properly preserve
this fee cap issue in the district court and that we should
therefore treat the argument as abandoned or forfeited. We are
reluctant to treat as forfeited a substantive assertion of error
when the appellees themselves have only obliquely asserted
such waiver or forfeiture in their presentation of another
argument. Therefore, again we will bypass the suggested
preclusion of the issue and consider it on the merits.
Our analysis begins with the language of the statute. As the
district court stated:
The plain and unambiguous language of the fee cap statute
specifically precludes the District from paying fees in
excess of $4000 to “an attorney who represents a party in an
action” under the IDEA. See Pub. L. No. 109-115, 119
Stat. 2396, 2519 (2005).
2010 Fee Award Decision, 677 F. Supp. 2d 169, 180 (quoting
2008 Fee Cap Decision, 538 F. Supp. 2d at 96). We agree with
this obvious proposition.
8
We further agree with the district court that class counsel in
the consolidated class actions before the court “is not ‘an
attorney who represents a party in an action’ — class counsel in
Petties and class counsel in Blackman/Jones represent hundreds
and/or thousands of parties.” Id. Therefore, on the face of the
statute, the district court concluded that
the cap does not preclude the Court from ordering
defendants to pay and — more importantly — does not
preclude the defendants from paying reasonable attorneys’
fees to the plaintiff classes, so long as the total amount paid
by the defendants does not surpass the statutory fee cap
multiplied by the total number of members of the plaintiff
class.
Id.
As it is undisputed that the classes number in the hundreds,
if not thousands, the plain and unambiguous language of the
statute would seem to make the district court’s conclusion
unassailable and compel us to affirm the fee award order.
The District, however, contends that we should not stop
with the plain and unambiguous language of the statute. The
District bases its argument principally on the Dictionary Act, 1
U.S.C. § 1, which states, in relevant part, that “[i]n determining
the meaning of any Act of Congress, unless the context indicates
otherwise — words importing the singular include and apply to
several persons, parties, or things.” Thus, the District argues,
the words “an attorney” in the fee cap legislation should include
“attorneys” and the words “representing a party” should also
include attorneys representing “parties.” Under that
construction, the District contends, the fee cap would apply to
the attorneys representing the parties in class actions and should
cap the payable fees at $4000. We do not accept this
9
interpretation of the fee cap legislation.
By its terms, the Dictionary Act does not apply to pluralize
all nouns in all statutes. It is inapplicable if “the context
indicates otherwise.” The Supreme Court long ago told us that
the pluralization rule established in the Dictionary Act “is not
one to be applied except where it is necessary to carry out the
evident intent of the statute.” First Nat’l Bank in St. Louis v.
Missouri, 263 U.S. 640, 657 (1924). In the context of the fee
cap legislation, even the District concedes that the words “an
action” cannot logically be construed to refer to “actions.” Such
a construction, taken in conjunction with the District’s
pluralization of the other nouns, would compel the result that an
attorney who represented many different parents of disabled
children in many different actions could never be compensated
past the first $4000. Similarly, if we pluralized “attorney” and
“party” but not “action,” we would create an anomalous
situation. A class action with multiple named class members,
each having his or her own attorney, could result in a fee capped
at $4000 multiplied by the number of named plaintiffs with
separate counsel. But a class action with one or more individual
named class members represented by a single attorney would be
capped at $4000. Additionally, this construction would provide
a perverse incentive for breaking single class actions into
inefficient multiple actions to generate larger counsel fees in
direct contradiction of Congress’s apparent goal at reducing
costs.
To return to the admonition of First National Bank, the
“evident intent” of the statute is to address individual IDEA
proceedings, not class actions. We therefore agree with the
district court’s conclusion that the plain and unambiguous
language of the statute controls, and the fee cap is not applicable
in this case.
10
Accordingly, the order of the district court is
Affirmed.
BROWN, Circuit Judge, concurring: The court affirms
the district court’s award of more than $1.4 million in
attorneys’ fees. This is in addition to an earlier award of $1.8
million in this class action, which has now lasted fourteen
years. These serial fee disputes are the latest chapter in a saga
the court describes as “stretching back at least forty years.”
Maj. Op. 2. Although the legal result is defensible, the
practical effect is reprehensible. The only segment of the
population well-served by this aspect of the IDEA program is
the lawyers who litigate these cases.
The District argues that the $4,000 fee cap provides a
ceiling even for a class action; the plaintiffs insist the fee cap
does not apply to class actions at all. I agree with the
plaintiffs. But this court apparently concludes that while the
cap does not limit fees in class actions to $4,000, it establishes
an upper bound. See Maj. Op. 5, 9–10; Williams, J.,
concurring, at 5. Thus, counsel in a class action would be
entitled to reasonable attorneys’ fees so long as the fees do not
exceed “$4,000 per student in the class.” Williams, J.,
concurring, at 5. Yet the fee cap legislation—reenacted
several times—says nothing about class actions. In the
absence of any express prohibition, a court could decide the fee
cap is irrelevant to the question of class action fees and resort
to a reasonable lodestar calculation. See, e.g., Clackamas
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 447
(2003) (“[C]ongressional silence often reflects an expectation
that courts will look to the common law to fill gaps in statutory
text . . . .”). Because under either approach the bottom line
would be indistinguishable, I concur in the result. But I write
separately because I wonder if class actions—which fall
outside the fee cap paradigm—should be certified for IDEA
claims and because the focus on fee caps seems both futile and
pernicious.
2
I
I begin with the issue of statutory interpretation. We
could—and probably should—derive a different principle
from congressional silence on the subject of class actions.
Since Congress clearly did not contemplate such representative
actions and made no provision for compensating broad
systemic attacks, the statute’s silence challenges the propriety
of class actions under the auspices of IDEA. Indeed, the very
structure of the statutory scheme undermines the validity of
class actions in this context.
When IDEA was enacted in 1975, its goals were lofty but
attainable; IDEA aimed to provide a “free appropriate public
education” for children with special educational needs.
Education of All Handicapped Children Act, Pub. L. No.
94-142, § 612, 89 Stat. 773 (1975) (codified as amended as the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400
et seq). (1982). To achieve this goal, IDEA mandated that
participating states identify these children and then work
cooperatively with parents, teachers, and administrators to
develop individualized education plans suitable to each child’s
needs and abilities. Pub. L. No. 94-142, § 613–14.
IDEA’s remedial system was not intended to be
adversarial; although Congress anticipated that disagreements
would arise that required legal intervention, Congress’s aim
was to resolve disputes amicably—litigation seemingly was
intended as a last resort. See Pub. L. No. 94-142, § 615
(listing a due process hearing last on the list of procedural
safeguards); see also 20 U.S.C. § 1415(e)–(f) (1997). And
Congress certainly did not anticipate that attorneys’ fees would
become the focus of any litigation that ensued. See H.R. Rep.
3
No. 105-670, at 21 (Committee on Appropriations) (deciding
in 1999 to cap attorneys’ fees so that “the District’s compliance
with [IDEA] will focus more clearly on teaching and learning
rather than on litigation and expensive legal fees”). In fact,
Congress affirmed this understanding of IDEA’s original
purpose as recently as 2005, when it amended the statute to
allow a state or local educational agency to recoup attorneys’
fees from parents who file frivolous or unfounded complaints.
20 U.S.C. § 1415(h)(3)(B)(i)(II)–(III). By amending the
statute, Congress implicitly recognized that IDEA was being
distorted; it was no longer simply a means to improve primary
education, but was becoming a breeding ground for vexatious
and costly litigation. See id. (permitting state and local
agencies to recoup fees when the parent’s cause of action was
intended “to harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation”).
IDEA’s singular focus on an individualized, cooperative
educational approach providing customized remedies makes
Congress’s neglect of broad-based actions understandable and
renders IDEA actions ill-suited to class-wide relief. The
Federal Rules of Civil Procedure demonstrate perfectly why
this is so. Federal Rule of Civil Procedure 23(a) sets forth
four prerequisites for the certification of a class. If those
prerequisites are met, a class will only be certified if the
plaintiffs can establish their case fits within one of the three
categories of subsection (b).
Paragraph (b)(2) of Rule 23, the basis of class certification
in this case, see Oct. 22, 1997 Mem. & Order Certifying the
Class at 2, permits a class action if “the party opposing the
class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the
class as a whole.” To satisfy this test, class claims must be
4
“sufficiently cohesive to warrant adjudication by
representation.” Amchem Products, Inc. v. Windsor, 521 U.S.
591, 623 (1997). This requirement stems from the
understanding that even unnamed class members are bound by
a Rule 23(b)(2) class action without the opportunity to opt out.
See In re Veneman, 309 F.3d 789, 792 (D.C. Cir. 2002).
Accordingly, cohesiveness is a significant touchstone of a
(b)(2) class. See Barnes v. Am. Tobacco Co., 161 F.3d 127,
142–43 & n.18 (3d Cir. 1998).
As is probably true for most IDEA-spawned class actions,
this class action raises a significant question about whether the
class claims are sufficiently cohesive to merit certification.
Certainly, at some level of abstraction, a degree of cohesion
will exist in almost any putative class. But this does not mean
it is prudent to generalize to such a degree, especially when
IDEA operates from the premise that each child will have
unique disabilities and presumes that each program will be
personalized. See Pub. L. No. 94-142, § 613–14; cf. J.B. ex
rel. Hart v. Valdez, 186 F.3d 1280, 1288–90 (10th Cir. 1999)
(affirming denial of class certification when alleged “systemic
failures” too broadly defined the claims at issue, amounting to
a lack of commonality under 23(a)(2)).
Moreover, it is patently evident the District is frequently
unable to comply with IDEA. See, e.g., Letter from Patricia
Guard, Acting Director of Special Education Programs to
Superintendent Gist, at 1 (June 15, 2007),
http://www2.ed.gov/fund/data/report/idea/partbspap/2007/dc-
aprltr-2007b.doc (last visited Jan. 12, 2011) (“[T]he District of
Columbia needs intervention in meeting the requirements of
Part B of the IDEA.”). The question then is not one of fault
but one of remedy—and any remedy will necessarily be unique
to a particular child. This means the District’s systemic
failures have little impact on the ultimate question courts now
5
face; even assuming the District violated its IDEA obligations
as to each plaintiff, any relief will be “dependent upon that
particular student[’s] needs, capabilities, and the IEP in place
for that child.” Blunt v. Lower Merion Sch. Dist., 262 F.R.D.
481, 489–90 (E.D. Pa. 2009). In fact, even the class
certification and ultimate liability determination in this case
did little to achieve the personalized remedies plaintiffs
sought; many class plaintiffs proceeded to file individual
motions for preliminary injunctions “based on their unique
circumstances.” Appellants’ Br. at 10. That this class action
failed to provide the specialized relief plaintiffs desired only
further supports the notion that the class action is an
inappropriate vehicle for these claims.
Indeed, we have recognized the individual nature of
IDEA’s remedies, and consequently have declined to fashion
“cookie-cutter” compensatory relief. Reid ex rel. Reid v.
District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005)
(“[J]ust as IEPs focus on disabled students’ individual needs,
so must awards compensating past violations rely on
individualized assessments.”). I see no reason why these
considerations should not be decisive when it comes to class
certification, and decisions in several other jurisdictions
support this view. See Blunt, 262 F.R.D. at 489–90 (refusing
to certify a class in part because “individual determinations,
which must be made to determine whether a particular student
falls within the class definition and whether such student has a
cause of action, weigh against certifying this class”); M.A. ex
rel. E.S. v. Newark Public Schs., No. 01-3389, 2009 WL
4799291, at *15 (D.N.J. Dec. 7, 2009) (unpublished)
(declining to certify a (b)(2) class for lack of cohesion, which
resulted from the necessity of individualized circumstances
and remedies); cf. McClendon v. Sch. Dist. of Phila., No.
04-1250, 2005 WL 549532, at *4–5 (E.D. Pa. Mar. 7, 2005)
(unpublished) (denying class certification because named class
6
members failed to satisfy Rule 23(a)(4)’s typicality
requirement in that the remedy sought was individualized in
nature). Because the ultimate relief in an IDEA action is
unique to each plaintiff, any putative IDEA class quite
arguably suffers from a lack of cohesion. Although it is too
late for this court to consider the issue, hereafter courts should
give significant consideration to the question of whether a
class action is the appropriate vehicle for an IDEA case—at
least for one seeking individual remedies.
II
The problem of IDEA litigation is not the only problem
that needs a remedy. IDEA’s focus from the outset was the
child—recognizing that individual children required
individualized educational strategies to ensure their learning
success, IDEA outlined a cooperative statutory scheme. See
Pub. L. No. 94-142, § 614 (“A local educational
agency . . . shall . . . establish a goal of providing full
educational opportunities to all handicapped children,
including . . . the participation and consultation of the parents
or guardian of such children . . . .”). But the individualized,
cooperative educational system IDEA envisioned was quickly
overwhelmed in the District of Columbia.
Here the IDEA system is anything but cooperative.
Because the District is perpetually unable to comply with
IDEA’s mandates, parents have sought to enforce their rights
in court—a situation IDEA contemplates, but one surely not
intended to be the norm. See 20 U.S.C. § 1415. It has
become so routine to “lawyer-up” and go to court, IDEA has
morphed from a system intended to benefit children to a
system that provides full employment to a specialized cadre of
lawyers. And this case is a perfect (yet terrible) illustration of
the transformation IDEA has undergone within the sixty-eight
7
square miles of the nation’s capital. Rather than fulfilling
IDEA’s promise to educate the individual child, this lawsuit
involves more than six-thousand plaintiffs. It has lasted more
than a dozen years. Plaintiffs who were in grade school when
this case began long ago graduated (or dropped out). Some
may have children of their own who are being victimized by
the District’s dysfunction. If we have learned anything from
decades of IDEA litigation, it is this: when the system is
broken, litigation will not fix it.
Congress itself has recognized the problems plaguing
IDEA litigation in the District, and has attempted to re-order
the program’s incentives over the last twelve years by enacting
statutory caps on the fees attorneys may be awarded for their
work representing IDEA plaintiffs. But the fee cap has been
limited; each renewal faced strong opposition. Some years
the cap was tabled entirely, and as it currently stands, the fee
cap only applies retroactively to cases initiated prior to 2009.
Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, 123
Stat. 524, 697–98 (2009). As this case and others like it
demonstrate, Congress’s efforts seem to have been misguided.
Congress has focused on attorneys’ fees, but fees are only a
visible symptom of a more fundamental failure. The District
is frequently unable to provide an adequate education for
special needs children because the District struggles to provide
an adequate education for any children.
Here, the per-pupil costs of education are astronomical,
yet the District suffers from an inversely proportionate success
rate. For the 2006–2007 school year, the Institute of
Education Sciences (“IES”) calculated educational spending in
the District at $20,596 per pupil, National Center for Education
Statistics,
http://nces.ed.gov/programs/digest/d09/tables/dt09_186.asp
(last visited Jan. 12, 2011) (hereinafter “Table 186”); some
8
estimates are even higher, Andrew Coulson, Do You Still
Think DC Spends only $15,000/Pupil?, (Feb. 19, 2010)
http://www.cato-at-liberty.org/do-you-still-think-dc-spends-o
nly-15000pupil/ (last visited Jan. 12, 2011) (follow “Excel
spreadsheet file” link to 2008–2009 data sheet) (calculating the
annual cost per pupil to be $28,169.91 in 2009). Even using
the lower figure for consistency across comparisons, this
means the District outspends some of the most heavily
populated states, including California ($9,364), Florida
($9,391), Pennsylvania ($12,440), New York ($17,818), and
Texas ($8,798). Table 186. In fact, according to the IES
compilation, the District outpaces every single state in
per-pupil spending. Id. But the District’s graduation rate is
well-below the national average, which was 74.7% in
2004–2005 (the last year for which data was available).
National Center for Education Statistics,
http://nces.ed.gov/pubs2009/dropout07/tables/table_13.asp
(last visited Jan. 12, 2011). For that same period, the
District’s graduation rate was 68.8%—the twelfth lowest rate
in the country. Id. And IDEA litigation costs the District in
excess of $10 million each year in attorneys’ fees. D.C.
Office of the Att’y Gen.
http://newsroom.dc.gov/show.aspx/agency/occ/section/2/relea
se/15655/year/2008 (last visited Jan. 12, 2011).
All that money has failed to stem the tide of IDEA
litigation. This tiny district with fewer than 50,000 pupils has
more IDEA suits than the largest school systems in the nation.
See Deborah K. Nichols, Auditor, Office of the District of
Columbia Auditor, Flawed Processes and Ineffective Systems
of Accountability Pertaining to DCPS’ Special Education
Program Have Resulted in Costly Legal Fees and Exorbitant
Charges for Related Services and Nonpublic Tuition, at 24
(May 9, 2003) http://dcauditor.org/dca/reports/dca0303.pdf
(last visited Jan. 12, 2011) (explaining that in 2002, the District
9
of Columbia Public Schools received more due process
hearing requests (3,044) than the entire state of California
(2,670), even though the District’s entire student population
numbers less than 50,000, while in California the special
education population alone numbers 670,000 students).
The solution to the District’s failure as an educational
provider is not mysterious. It does not depend on how well or
how poorly lawyers get paid for representing dissatisfied
parents. Even in the District, there are bright spots. For
example, the Seed School, which is a charter school serving the
District of Columbia, has experienced a 96% rate of college
acceptance and a 95% rate of college enrollment among its
students. The Seed School of Washington,
http://www.seedschooldc.org/ (last visited Jan. 12, 2011).
And the Seed School achieves these successes educating the
very same children the District is unable to assist; in fact, the
Seed School accepts applications on a lottery basis, ensuring
that selection is not based on demonstrated academic ability.
The Seed School of Washington, Admissions,
http://www.seedschooldc.org/page.php?pid=63 (last visited
Jan. 12, 2011). Similarly, the Friendship Public Charter
School, which is publicly funded in its entirety, has produced
significant results; students have exceeded state academic
requirements for six years running. Friendship Public Charter
School, About: Welcome from the Chairman,
http://www.friendshipschools.org/RelId/606513/ISvars/defaul
t/Welcome_from_the_Chairman.htm (last visited Jan. 12,
2011). Programs like those offered by the Seed School and
the Friendship Public Charter School demonstrate that these
children can achieve academically, if given the proper
guidance. But such guidance need not necessarily take the
form of paid legal representation. The sixty-eight square
miles of the federal city probably has more JDs and PhDs per
capita than any other spot in America, yet it lags behind states
10
like Pennsylvania and Ohio where parents are often guided
through the IDEA process by a corps of parent volunteers. See,
e.g., Dr. Edward Feinberg, The Role of Attorneys in Special
Education Mediation,
http://www.mediate.com/articles/cadre4.cfm (last visited Jan.
12, 2011) (discussing Pennsylvania’s system of non-attorney
“advocates” and Ohio’s successful parent mentor program).
The District of Columbia Public Schools’ biggest problem
should be having more pro bono services offered than it can
use. Instead, in the bizarro world inhabited by the District, the
more its student population shrinks, the bigger its legal bills
grow. If there is an answer to this problem, it will likely come
from concerned parents, committed teachers, and
conscientious volunteers. One thing is clear. It will not
come from adjusting the spigot directing the flow of public
funds to lawyers.
WILLIAMS, Senior Circuit Judge, concurring in the
judgment: I write separately to explain why appellees’
purported “law of the case” argument must be rejected and to
offer a somewhat different interpretation of the statute from
that of Chief Judge Sentelle.
Law of the Case; Waiver and Forfeiture
Under the doctrine of “law of the case,” a court may
decline to reconsider the merits of its own prior rulings when
the same point of law arises for the second time in the same
case. The panel rightly notes that law of the case was not the
basis of the district court’s decision. Maj. Op. at 7; see also
2010 Fee Award Decision, 677 F. Supp. 2d at 180.
More importantly, application of “law of the case” by a
lower court, no matter how correct, cannot, as a logical
matter, preclude review on the merits by a higher court. In
Christianson v. Colt Industries Operating Corp., 486 U.S. 800
(1988), the Court initially determined that the Federal Circuit
lacked jurisdiction for the decision under review (compelling
vacatur). It then examined and emphatically rejected the
respondent’s claim that it was entitled to preserve its victory
in the Federal Circuit on a law of the case theory. The Court
explained that respondent was wrong on a number of grounds,
including the inconvenient fact that the first of multiple
decisions on jurisdiction had rejected Federal Circuit
jurisdiction. But the Court went on to give the clincher:
Most importantly, law of the case cannot bind this Court
in reviewing decisions below. A petition for writ of
certiorari can expose the entire case to review. Panama
R. Co. v. Napier Shipping Co., 166 U.S. 280, 283-284
(1897). Just as a district court’s adherence to law of the
case cannot insulate an issue from appellate review, a
2
court of appeals’ adherence to the law of the case cannot
insulate an issue from this Court’s review. See
Messenger [v. Anderson, 225 U.S. 436], at 444 [(1912)];
Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240
U.S. 251, 257-259 (1916).
486 U.S. at 817-18.
To see why the appellate court cannot treat an issue as
resolved simply because the district court has correctly
applied law of the case, consider the following two scenarios.
In both the district court addresses the same issue twice, and
in both there had been neither an intervening trip to the court
of appeals nor a final appealable judgment that would allow a
party access to the court of appeals.
In the first scenario, the district court looks at the issue
and decides; then, when it comes up again, the court carefully
reconsiders the matter, adds new reasoning, introduces new
subtleties, and comes out the same way. The court of appeals
might find the new reasoning persuasive, or it might not. In
any event, it would not skip the issue simply because the
district court considered it twice.
In the second scenario, the district court resolves the
question once, and then, on the issue’s recurrence, invokes
law of the case. Determining, correctly, that none of the
reasons not to apply law of the case is present, it sticks with
its first resolution. It would surely be nonsense to say, in this
scenario, that the court of appeals cannot, or should not, face
the issue (assuming it’s otherwise properly presented,
necessary to the outcome, etc.).
Appellees here rely on a number of decisions in which we
have spoken of “law of the case” as the reason to affirm a
district court decision that had applied that doctrine.
3
Kimberlin v. Quinlan, 199 F.3d 496 (D.C. Cir. 1999);
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810
F.2d 243 (D.C. Cir. 1987) (using terms waiver and law of the
case); see also Laffey v. Northwest Airlines, Inc., 740 F.2d
1071, 1089-90 (1984) (similarly using terms waiver and law
of the case); United States v. Alaw, 327 F.3d 1217, 1219 (D.C.
Cir. 2003) (using term law of the case). But in fact, as we
have recognized, these cases all involved situations where a
party had participated in a prior appeal that afforded an
opportunity to obtain appellate reversal. See Crocker v.
Piedmont Aviation, Inc., 49 F.3d 735, 738-41 (D.C. Cir.
1995). (Kimberlin and Alaw, though following Crocker, are
no different in this.) In such cases the appellate court is not
abdicating substantive review on the ground that the district
court properly decided not to replow what was for it old
ground, but rather is justifiably treating a party as having
abandoned an opportunity for appellate review. As we
observed in Crocker, the correct name for such a doctrine is
waiver. Crocker, 49 F.3d at 739; see also 18B Charles Alan
Wright, Arthur R. Miller, & Edward H. Cooper, Federal
Practice and Procedure § 4478.6 (4th ed. 2008); U.S. v. Henry,
472 F.3d 910, 913 (D.C. Cir. 2007) (applying the concept
under the waiver label); Northwestern Indiana Telephone Co.,
Inc. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989) (same, but
also applying “law of the case” to another issue, previously
decided by our court, i.e., in the standard domain of law of the
case).
But the term waiver is sensibly confined to the situation
where there actually has been a prior appeal, as opposed to
the present case, where an issue was decided in an earlier
ruling that was final and appealable at the time but which the
losing party never appealed on any grounds. Wright, Miller
4
and Cooper classify such a case, that of a mere prior
opportunity for an appeal, as one of “forfeiture.” Id.1
Three other circuits have each, on at least one occasion,
invoked the forfeiture principle to justify refusal to consider
the merits of issues on appeal. See Little Earth United Tribes,
Inc. v. Dept. of Housing and Urban Development, 807 F.2d
1433, 1438 (8th Cir. 1986); ABC, Inc. v. Nameloc, Inc., 403
F.3d 607, 610-11 (8th Cir. 2005); Griffin v. Michigan Dept. of
Corrections, 5 F.3d 186, 190 (6th Cir. 1993); Martinez v.
Roscoe, 100 F.3d 121, 123 (10th Cir. 1996). No case from
our court has applied—or, indeed, rejected—a claim of
forfeiture based on failure to exercise a right to appeal a final
order. Even in the waiver context, where the case for barring
an unasserted claim is stronger because the case itself has
already occasioned appellate court consideration, we have
noted that the doctrine is “even one notch weaker” than law of
the case. Crocker, 49 F.3d at 740. In this instance, I see no
reason to treat the fee cap argument as forfeit. The 2008 Fee
Award Decision was arguably a final and appealable
judgment. See Gates v. Rowland, 39 F.3d 1439, 1450 (9th
Cir. 1994). But if this is so, it was less than plainly obvious
under the law of this circuit, and appellees, whose award
1
Although appellees in their brief framed their
argument as one of “law of the case,” they acknowledged in
oral argument that there was some ambiguity regarding which
label to use in this instance. See Transcript of Oral Arg. at
19. And they cited cases from the Eighth Circuit that clearly
invoke the principle of forfeiture, although failing to
distinguish it from waiver and law of the case. See Transcript
of Oral Arg. at 19, 20 (mentioning Little Earth United Tribes,
Inc. v. Dept. of Housing and Urban Development, 807 F.2d
1433 (8th Cir. 1986); ABC, Inc. v. Nameloc, Inc., 403 F.3d
607 (8th Cir. 2005)).
5
under the 2008 Fee Award Decision is not at issue in this
appeal, were not significantly disadvantaged by appellants’
failure to appeal the fee cap issue until 2010. (The bulk of the
fees at issue here were incurred before the 2008 ruling and
thus, obviously, well before the District had any opportunity
to appeal that decision.)
Statutory Analysis
Although I concur in Chief Judge Sentelle’s ultimate
judgment that the fee cap statute permits awards of attorneys’
fees up to $4,000 per student in the class, I do not agree that
the fee cap statute is “plain and unambiguous” with respect to
class actions. The fee cap states that
Sec. 122. (a) None of the funds contained in this Act may
be made available to pay –
(1) the fees of an attorney who represents a party in
an action or an attorney who defends an action
brought against the District of Columbia Public
Schools under the Individuals with Disabilities
Education Act (20 U.S.C. 1400 et seq.) in excess of
$4,000 for that action; or
(2) the fees of an attorney or firm whom the Chief
Financial Officer of the District of Columbia
determines to have a pecuniary interest, either
through an attorney, officer, or employee of the firm,
in any special education diagnostic service, schools,
or other special education service providers.
(b) In this section, the term “action” includes an
administrative proceeding and any ensuing or related
proceedings before a court of competent jurisdiction.
6
2006 District of Columbia Appropriations Act § 122; Pub. L.
No. 109-115, 119 Stat. 2396, 2519 (2005), cont’d in effect,
Revised Continuing Appropriations Resolution, § 101(a)(9),
Pub. L. No. 110-5, 121 Stat. 8, 9 (2007).
A literal reading of the statute would award $4,000 to
every individual attorney who represents a party. As Chief
Judge Sentelle’s opinion points out, this would lead to an
absurd result. A per party cap also cannot be understood
literally, as it would seem to imply a ceiling of $8000 when
two parents sue on behalf of their child, as each would be “a
prevailing party who is the parent of a child with a disability.”
See 20 U.S.C. § 1415(i)(3)(B). Instead, one must read “party”
to refer to a student, or the student’s parent or parents suing on
behalf of the student, or both (but never adding up to more
than one party per student whose education is at issue).
What is less clear is whether the $4,000 fee cap should be
read to apply per student or per action. The phrase “fees of an
attorney who represents a party in an action” seems to imply a
$4,000 per student reading because it suggests that the
relevant unit of analysis is a party in an action. 2006 District
of Columbia Appropriations Act § 122(a)(1). But the
language at the end of the same clause—“in excess of $4,000
for that action”—cuts in favor of the per action interpretation
as it implies that the $4,000 limit applies to actions as a
whole. Id. Under the per student reading, the fee cap applies
to “an attorney who represents a party in an action” and the
phrase “$4,000 for that action” merely clarifies the scope of
representation of a party that the fee cap applies to. Id. In
other words, an attorney may receive $4,000 for each separate
action in which they represent a party or $4,000 for each
separate party they represent in a single action. Under the per
action reading, the fee cap limits fees paid to an attorney (or
attorneys) “for that action” and the phrase “an attorney who
represents a party in an action” merely specifies the type of
7
attorney (i.e., an attorney who either brings or defends an
IDEA suit) whose fees are subject to the cap. Id. On that
reading, an attorney may not receive more than $4,000 for a
single action regardless of the number of parties represented
in that action.
Both readings of the statute are plausible. The statutory
language provides clear guidance in cases where each action
concerns one student. But I see no “evident intent” of
Congress with respect to class actions. If Congress had
thought about class actions even in the slightest, it would have
provided more explicit instruction on how to deal with them.
All that is clear is that Congress intended that the fee cap be
no more than $4,000 per student and no less than $4,000 per
action. But this leaves two plausible interpretations that entail
wildly different results in the class action context.
Just as the explicit text is ambiguous, it is difficult to
identify a policy implicit in the statute that offers clear
guidance for our case. The fee cap statute balances
Congressional concern with the diversion of funds from
District schools to plaintiffs’ attorneys with the desire to
provide some source of funding for legal representation of
poor children with worthy claims. For cases involving
individual students, Congress evidently decided that a $4,000
fee cap would represent a reasonable balance of these
considerations. Class actions offer the possibility of
economies of scale in litigation by resolving the claims of
many similarly situated parties in one action rather than
forcing each individual claim to be brought as a separate
action. The time of plaintiffs’ attorneys is one of the many
resources on which a class action may economize. The cost
of legal representation per student in a class action could be
expected to be lower, perhaps much lower, than those in
individual actions. So it is doubtful that someone who
believed that a $4,000 per student fee cap struck a reasonable
8
balance between protecting the District’s fisc and securing
legal representation for poor children would also believe that
the same $4,000 per student was the best fee cap in class
actions. And there is surely some anomaly in construing a cap
that to a degree serves to constrain overlawyering as having
no such beneficent effect in a class action. But it seems even
less likely that the drafters could have thought that a $4,000
per action fee cap for a case involving thousands of students
would provide for adequate legal representation. Instead, the
policy logic of the statute suggests that the fee cap for large
class actions should be something less than $4,000 per student
but more than $4,000 per action. Unfortunately, this is not
one of the two plausible interpretations of the statutory
language. The text of the statute forces us to choose between
two extreme outcomes.
On balance, I believe that the $4,000 per student
interpretation is a somewhat superior reading. As Chief Judge
Sentelle’s opinion observes, the $4,000 per action rule would
provide a perverse incentive to break class actions into
multiple individual actions so as to receive higher attorneys
fees. Furthermore, while Congress evidently decided that
$4,000 was ample compensation for an attorney representing
an individual student, it is difficult to see how the same
compensation could be reasonable for a much larger, longer
and more complex class action. Whereas a $4,000 cap on fees
in a suit brought by an individual student seems unlikely to
force impecunious parents to rely on pro bono legal services, a
$4,000 fee cap on a class action would likely have just this
effect. By contrast, since Congress was willing to permit the
District to spend the aggregate of $4,000 per student on fees
in individual cases, it plainly had no clear opposition to the
aggregate cost that a per student rule imposes on the District
in this case. Finally, the fee shifting statute itself provides that
fees may be awarded “to a prevailing party who is the parent
of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B).
9
Given that fee awards are made to parents of a student, it
seems fitting to read the cap on these fees as applying per
student rather than per action.