Calloway v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 1999 Decided June 30, 2000

No. 99-5215

Brandon Calloway, et al.,
Appellants/Cross-Appellees

v.

District of Columbia, et al.,
Appellees/Cross-Appellants

Consolidated with
99-5216

Appeals from the United States District Court
for the District of Columbia
(No. 99cv00037)

Steven L. Leifer argued the cause for appellants/cross-
appellees. With him on the briefs were Lois McKenna

Henry, Joshua B. Frank, Paul Levy, Beth Goodman, Ma-
thew Bogin, Margaret Kohn,and Paul Dalton.

Edward E. Schwab, Assistant Corporation Counsel, Office
of the Corporation Counsel, argued the cause for appel-
lees/cross-appellants District of Columbia, et al. With him on
the brief were Robert R. Rigsby, Interim Corporation Coun-
sel, and Charles L. Reischel, Deputy Corporation Counsel.
Donna M. Murasky, Assistant Corporation Counsel, entered
an appearance.

Alfred Mollin, Attorney, U.S. Department of Justice, ar-
gued the cause for appellee/cross-appellant United States of
America. With him on the brief were David W. Ogden, Acting
Assistant Attorney General, Michael Jay Singer, Attorney,
and Wilma A. Lewis, U.S. Attorney.

Before: Ginsburg, Tatel and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Separate opinion dissenting in part filed by Circuit Judge
Ginsburg.

Tatel, Circuit Judge: A rider to the District of Columbia
Appropriations Act imposes limits on fees the District may
pay under the Individuals with Disabilities Education Act,
known as IDEA, to attorneys who represent prevailing par-
ties in actions against the D.C. Public Schools. In this suit by
disabled students and their parents, the district court reject-
ed challenges to the fee cap, finding it neither preempted by
IDEA nor contrary to the Due Process Clause of the Fifth
Amendment. The district court also held that the rider
restricts only the District's authority to pay attorneys' fees,
not court authority to award fees pursuant to IDEA. Find-
ing no error, we affirm in all respects.

I

The Individuals with Disabilities Education Act seeks to
"ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes
special education and related services designed to meet their
unique needs and prepare them for employment and indepen-

dent living." 20 U.S.C. s 1400(d)(1)(A). As a condition of
receiving funds under the Act, IDEA requires school districts
to adopt procedures to ensure appropriate educational place-
ment of disabled students. See 20 U.S.C. s 1413. In addi-
tion, school districts must develop comprehensive plans for
meeting the special educational needs of disabled students.
See 20 U.S.C. s 1414(d)(2)(A). Known as "individualized
education programs," or IEPs, these plans must include "a
statement of the child's present levels of educational perfor-
mance, ... a statement of measurable annual goals, [and] a
statement of the special education and related services ... to
be provided to the child...." 20 U.S.C. s 1414(d)(1)(A).

IDEA guarantees parents of disabled children an opportu-
nity to participate in the identification, evaluation, and place-
ment process. See 20 U.S.C. ss 1414(f), 1415(b)(1). Parents
who object to their child's "identification, evaluation, or edu-
cational placement" are entitled to an "impartial due process
hearing," 20 U.S.C. ss 1415(b)(6), (f)(1), at which they have a
"right to be accompanied and advised by counsel." 20 U.S.C.
s 1415(h)(1). Parents "aggrieved by" a hearing officer's find-
ings and decision may bring a civil action in either state or
federal court without regard to the amount in controversy.
20 U.S.C. s 1415(i)(2).

Section 1415(i)(3)(B) of IDEA gives courts authority to
"award reasonable attorneys' fees as part of the costs to the
parents of a child with a disability who is the prevailing
party." Prevailing parents may also recover fees incurred
during administrative proceedings. See Moore v. District of
Columbia, 907 F.2d 165 (D.C. Cir. 1990) (en banc). The
amount of fees awarded "shall be based on rates prevailing in
the community in which the action or proceeding arose for
the kind and quality of services furnished." 20 U.S.C.
s 1415(i)(3)(C).

The District of Columbia Public Schools (DCPS) has failed
to meet its obligations under IDEA, a fact no one disputes.
In its brief, the United States describes DCPS's situation this
way:

 By 1998, the District of Columbia School System's ...
failure to fulfill its obligations under IDEA reached crisis
proportions. The District had virtually ceased to con-
duct timely hearings requested by parents under IDEA
and to issue final decisions within the required timelines.
Other of its obligations under IDEA were also not being
met to a significant extent.

See also Blackman v. District of Columbia, 185 F.R.D. 4, 5
(D.D.C. 1999) (finding that DCPS's noncompliance with
IDEA has resulted in "significant delays both in the place-
ment of children in appropriate educational settings and in
the provision of crucial medical services, delays that have the
potential to permanently harm the physical and emotional
health of many young children."). At a June 1997 public
hearing, DCPS identified several factors responsible for its
noncompliance, including "inadequate management[,]....
poor information management systems, lack of staff training,
inappropriate staff allocation and lack of appropriate pro-
grams." Notice of Written Findings and Decision and Com-
pliance Agreement, 63 Fed. Reg. 41370, 41373. A year later,
the Secretary of Education stated that, after "working with
DCPS over a number of years to address its serious and on-
going failure to comply with the requirements of [IDEA]," he
determined that immediate compliance was "not feasible."
Id. at 41371. The Secretary and DCPS entered into a
Compliance Agreement mandating that DCPS "be in full
compliance with the requirements of [IDEA in] no later than
three years." Id. at 41374.

DCPS's failure to meet the special education needs of its
disabled students has resulted in an exceedingly large num-
ber of parental complaints. The record shows that in 1995,
although DCPS served less than two-thousandths of one
percent of the nation's disabled students, over forty-five
percent of requests for due process hearings nationwide were
made in D.C.

Because IDEA authorizes the award of attorneys' fees,
parental complaints have been costly for DCPS. In fiscal
year 1998, for example, the school district paid over $10

million to attorneys. That same year, the Washington Post
reported that legal representation of special education stu-
dents, once "an obscure niche," had developed into a "boom-
ing, lucrative industry." Doug Struck and Valerie Strauss,
Special Ed Law Is Big Business; Students' Attorneys Collec-
tively Receiving Millions in Fees, The Wash. Post, July 20,
1998, at B7. Describing special education cases as "easy [to]
win," the Post stated that "when the city's school system is
crying for money to try to build an adequate special education
system--and thereby begin to lessen the flood of legal chal-
lenges--these attorney fees rankle school officials who say
the money should be spent on children." Id.

Responding to the concerns expressed in the Post article,
the House Committee on Appropriations, while considering
the District's fiscal year 1999 appropriations request, acted to
stem "the growth in legal expenses ... and the usurping of
resources from education to pay attorney fees." H.R. Rep.
105-670, at 50 (1998). The Committee adopted an appropria-
tions rider that, in order to allow DCPS to "focus more
clearly on teaching and learning rather than on litigation and
expensive legal fees," limited the District's fee payments
under IDEA. Id. Eventually becoming section 130 of the
1999 D.C. Appropriations Act, the rider imposed caps on both
the hourly rate and total amount of compensation the District
could pay lawyers of parents who prevail in IDEA actions and
proceedings. See Section 130 of the Omnibus Consolidated
and Emergency Supplemental Appropriations Act of 1999,
Pub. L. 105-277, 112 Stat. 2681 (October 21, 1998) (hereinaf-
ter, section 130). Specifically, section 130 provided that 1999
funds could not be used to pay attorneys' fees in excess of the
amount at which the D.C. Code fixes compensation of attor-
neys who represent indigent defendants charged with misde-
meanors: $50 per hour and $1,300 overall. See section 130;
D.C. Code Ann. s 11-2604(a); D.C. Code s 11-2604(b)(1).
Section 130 allowed the maximum total payment, but not the
maximum hourly rate, to be waived for "extended or complex
representation." See section 130; D.C. Code Ann.
s 11-2604(c). In its entirety, section 130 reads as follows:

 None of the funds contained in this Act may be made
available to pay the fees of an attorney who represents a
party who prevails in an action, including an administra-
tive proceeding, brought against the District of Columbia
Public Schools under the Individuals with Disabilities
Education Act (20 U.S.C. s 1400 et seq.) if--

(1) the hourly rate of compensation of the attorney
exceeds [$50]; or

(2) The maximum amount of compensation of the at-
torney exceeds [$1,300], except that compensation and
reimbursement in excess of such maximum may be
approved for extended or complex representation in
accordance with section 11-2604(c), District of Colum-
bia Code.

Congress included a similar rider in the District's fiscal
year 2000 appropriations bill. Fearful of the rider's impact
on disabled children, President Clinton vetoed the bill. "In
the long run," the President's veto message explained, "this
provision would likely limit the access of the District's poor
families to quality legal representation, thus impairing their
due process protections provided by ... IDEA." See District
of Columbia Appropriations Act, 2000--Veto Message from
The President of The United States (H. Doc. No. 106-135),
145 Cong. Rec. H8941, H8942 (Sept. 28, 1999). Persisting,
Congress included the fee cap (with minor revisions not
relevant to this litigation) in a reenacted FY 2000 appropria-
tions bill. This time the President signed. See Section 129,
District of Columbia Appropriations, 2000, Pub. L. No. 106-
113, 113 Stat. 1501, 1517 (November 29, 1999).

Before the enactment of the FY 2000 appropriations bill,
seven disabled children and their parents filed suit against
the District in the United States District Court for the
District of Columbia challenging section 130 of the FY 1999
Appropriations Act. The families allege that the fee cap
prevents them from retaining qualified legal counsel on a
contingency basis. One plaintiff unable to find counsel de-
clared: "I spoke with ... one of the attorneys who specializes

in education law ... who informed me that, due to the
passage of Section 130 of the D.C. Appropriations Act, her
firm was no longer able to accept special education cases on a
contingency basis. She indicated that she was not aware of
any other private attorney in the District of Columbia who
would...."

The families mounted two challenges to section 130. Rely-
ing on the Supremacy Clause of Article VI of the Constitu-
tion, they argued that section 130--which they referred to as
a "local law"--is preempted by IDEA. They also argued that
by singling out disabled children residing in the District of
Columbia for unfavorable treatment, section 130 violates the
Due Process Clause of the Fifth Amendment. Finally, the
families sought a declaratory ruling that section 130 does not
affect a district court's authority to award reasonable attor-
neys' fees under IDEA. Pursuant to 28 U.S.C. s 2403(a), the
United States intervened to defend section 130's constitution-
ality. The District of Columbia, which joined the United
States' defense of the statute, argued that section 130 amend-
ed IDEA, thus barring courts in D.C. from awarding fees in
excess of the amount the District is authorized to pay.

Rejecting plaintiffs' challenges to section 130, the district
court granted summary judgment in favor of the District.
The court also rejected the District's interpretation of section
130, ruling that the rider had "done nothing to affect the
district court's ability under [IDEA] to base a determination
of reasonable attorneys' fees [on] rates prevailing in the
community."

The families now appeal, and the District of Columbia
cross-appeals. Although the United States defends section
130's constitutionality, it takes no position on the proper
interpretation of the section. Our review of all issues is de
novo. See Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994)
("Our review of the grant of summary judgment is de novo,
applying the same standards as the district court."); United
States v. Williams-Davis, 90 F.3d 490, 512 (D.C. Cir. 1996)
(applying de novo review to a question of statutory construc-
tion).

 II.

Beginning with the families' appeal, we can easily dispose
of their Supremacy Clause argument. Because IDEA is
national legislation, the families argue, it preempts under the
Supremacy Clause any state or local legislation that impedes
its accomplishment, such as section 130. In support, the
families cite Brown v. United States, 742 F.2d 1498, 1502
(D.C. Cir. 1984) (en banc), where we stated that "Congress
frequently enacts legislation applicable only to the District
and.... [a]bsent evidence of contrary congressional intent,
such enactments should be treated as local law, interacting
with federal law as would the laws of the several states."
Even assuming the Supremacy Clause applies to Congress
when it legislates for the District under Article I, section 8 of
the Constitution--a proposition for which we have found no
persuasive support--the families' argument suffers from a
fatal weakness: it requires us to believe that Congress enact-
ed section 130 for the purpose of having it instantaneously
preempted by a statute enacted over a decade earlier. See
Cipollone v. Liggett, 505 U.S. 504, 516 (1992) ("[T]he purpose
of Congress is the ultimate touchstone of pre-emption analy-
sis.") (internal quotation marks omitted).

We turn to the families' equal protection challenge. They
argue that section 130, by limiting their ability to obtain
counsel and leaving them "powerless to enforce their IDEA
rights," treats them differently from non-D.C. families with
disabled children, in violation of the equal protection guaran-
tee of the Fifth Amendment's Due Process Clause. See
Bolling v. Sharpe, 347 U.S. 497 (1954) (applying equal protec-
tion principles to the District of Columbia through the Due
Process Clause of the Fifth Amendment). To assess this
claim, we must first determine the appropriate level of scruti-
ny. Most laws will survive equal protection challenge if they
bear a rational relationship to a legitimate governmental
purpose. See Vacco v. Quill, 521 U.S. 793, 799 (1997). More
searching scrutiny is reserved for laws that either burden a
suspect class or impinge upon a fundamental interest. See id.
The families urge us to apply heightened scrutiny for two
reasons: residents of D.C. are themselves a suspect class, and

section 130 burdens the educational opportunities of a disad-
vantaged group, i.e., children with disabilities.

This court has twice considered claims that D.C. residents
comprise a suspect class. The first case, United States v.
Thompson, 452 F.2d 1333 (D.C. Cir. 1971), concerned a
district court's application of D.C. bail provisions to deny
appellant bail pending appeal following his conviction for
violating federal narcotics laws. Appellant argued that the
D.C. bail provisions applied only to local offenses (ones con-
tained in the D.C. Code) and that because he had been
convicted of a national offense (one contained in the U.S.
Code), his bail application should have been judged by the
more lenient criteria applicable to national offenses in other
jurisdictions. See id. at 1337-38. This court agreed, stating
that application of D.C. bail provisions to U.S. Code offenses
would violate the Due Process Clause by treating U.S. code
violations in D.C. differently from such violations in all other
jurisdictions. See id. at 1340-41. The opinion contains lan-
guage that supports the families' position:

Minorities can usually protect themselves by playing
their role in the political process and forming coalitions
with other groups to secure a majority. But it is sense-
less to remit District residents to the political process,
since for them there is no political process.... In this
context, ... the normal arguments for judicial restraint
become no more than hollow shibboleths grotesquely
detached from the logic which once supported them....
Therefore, discriminatory classifications affecting District
residents must be subjected to the strictest possible
review.

Id. at 1341 (internal citation omitted).

This court next considered the suspect class status of D.C.
residents in United States v. Cohen, 733 F.2d 128 (D.C. Cir.
1984) (en banc). Sitting en banc, the court departed from the
reasoning of Thompson and applied rational basis review to
uphold a statute requiring civil commitment for D.C. defen-
dants found not guilty by reason of insanity. See id. Ex-
plaining why the statute did not burden a suspect class,

Cohen first noted that the affected group consisted not just of
District residents, but "principally of those who commit
crimes within the District, a class within which ... many
residents of other states ... are likely to be included...."
Id. at 135. Then, in language relied on by the government in
this case, Cohen said the following:

[E]ven if one accepts the thesis that the class in question
is residents of the District of Columbia, the mere lack of
the ballot does not establish political powerlessness, or, if
it does, political powerlessness alone is not enough for
"suspect class" status. Minors, for example, are not a
suspect class. It is, in any event, fanciful to consider as
"politically powerless" a city whose residents include a
high proportion of the officers of all three branches of
the federal government, and their staffs.

Id. (internal citation omitted).

According to the families, this language is dicta because
the court interpreted the civil commitment statute as not
classifying on the basis of residence. The families urge us to
follow Thompson and apply heightened scrutiny to section
130. We are not so free. Whatever force Thompson's rea-
soning about the status of D.C. residents once carried, it has
not survived Cohen. To begin with, by pointing out that the
civil commitment statute at issue in Cohen applies to anyone
tried in the District, not just to District residents, Cohen
implicitly undermined Thompson, for notwithstanding
Thompson's apparent holding that D.C. residents are a sus-
pect class, the D.C. bail provisions also apply to persons tried
within the District, regardless of residency. Moreover, Co-
hen expressly repudiates Thompson's equal protection rea-
soning. "We ... disapprove ... the rationale expressed in
[Thompson] that distinctive legislative treatment of the Dis-
trict is 'particularly suspect' and thus requires more than a
rational basis to support it." Id. at 136 n.12. Although
Cohen's discussion of the suspect class status of D.C. resi-
dents was not critical to its holding--the court had already
recognized that persons tried within the District need not
reside there--its analysis evolved from considerable debate

within the court. A portion of the court's opinion responds to
a concurring opinion's effort to devise a framework by which
differential treatment of D.C. residents would, in certain
circumstances, raise special equal protection concerns. See
id. at 132 n.10, 136 n.12, responding to id. at 141-50 (Mikva,
J., concurring). For all of these reasons, a panel of this court
may not now depart from the en banc court's conclusion that
D.C. residents do not comprise a suspect class for equal
protection purposes.

In support of their second argument for heightened scruti-
ny--that section 130 burdens the educational opportunities of
a disadvantaged group--the families rely on Plyler v. Doe,
457 U.S. 202, 223-24 (1982), which applied heightened scruti-
ny to invalidate a Texas statute denying public education to
children not legally admitted to the United States. In subse-
quent cases, however, the Supreme Court limited Plyler to its
facts. In Kadrmas v. Dickinson Public Schools, the Court
rejected a claim that charging some students a fee for trans-
portation to school triggered heightened scrutiny under Plyl-
er, saying "we have not extended [Plyler's] holding beyond
the unique circumstances that provoked its unique confluence
of theories and rationales." 487 U.S. 450, 459 (1988) (internal
citations and quotation marks omitted). Those "unique cir-
cumstances" are not present here. In Plyler, the doors to
the public schools were completely closed to children of
undocumented aliens. See Plyler, 457 U.S. at 205. Although
section 130 may make it less likely that disabled children will
receive an education that conforms to IDEA, the doors to the
schoolhouse remain open, as they did in Kadrmas. And the
Supreme Court has made clear that a statute burdening the
educational opportunities of disadvantaged children does not
by that fact alone trigger heightened scrutiny. See San
Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1
(1973) (applying rational basis review to uphold Texas's use of
property taxes to finance local school districts even though
that funding system resulted in fewer educational opportuni-
ties for poor students than for students in districts with
richer tax bases).

 We thus review the families' equal protection challenge
under the rational basis standard. We ask whether "there is a
rational relationship between the disparity of treatment and
some legitimate governmental purpose." Heller v. Doe, 509
U.S. 312, 320 (1993). "On rational-basis review, a ... statute
... comes to us bearing a strong presumption of validity, and
those attacking the rationality of the legislative classification
have the burden to negative every conceivable basis which
might support it." FCC v. Beach Communications, Inc., 508
U.S. 307, 314 (1993) (internal citations and quotation marks
omitted).

Pointing to The Washington Post article, the District's
brief refers to "evidence of abuse by attorneys in the legal
services process," presumably implying--though never direct-
ly so stating--that section 130 was designed to curb excessive
or unjustified fees. The families and their lawyers resist any
such charges, and at oral argument counsel for the District
conceded that the city has no evidence of attorney miscon-
duct. The District, moreover, "adopts" the United States'
brief, which argues not that section 130 stemmed from evi-
dence of attorney abuse, but that in view of DCPS's manifest
inability to meet its obligations under IDEA, Congress could
rationally have concluded that "it was more important for the
District to spend its funds on remedying these systemic
defects and providing primary services rather than upon
litigation fees." According to the government, then, section
130's legitimate governmental purpose is to assist disabled
children in D.C. by allocating additional funds to primary
special education services. The statute is rationally related to
that objective, we are left to infer, because limiting payments
to attorneys will leave more funds available for direct ser-
vices.

The families raise several reasons to doubt that section 130
will yield the benefits claimed by the government. As the
families point out, nothing requires DCPS to reallocate sec-
tion 130 savings to special education services, nor does the
record indicate that such funds have been so reallocated.
Rather, the families claim, the District's annual budget has
simply been reduced by the amount of fees saved. Moreover,

section 130 limits attorneys' fees even when paid from sources
other than DCPS's budget; while the statute caps fees for
both administrative proceedings and court litigation, pay-
ments for the latter come from the Corporation Counsel's
Settlement and Judgment fund. Finally, the families ask,
even if section 130 actually made more funds available for
special education, would any improvements that might flow
from such expenditures outweigh section 130's harmful ef-
fects?

Whatever the doubts about section 130, "rational-basis
review in equal protection analysis is not a license for courts
to judge the wisdom, fairness, or logic of legislative choices."
Heller, 509 U.S. at 319 (internal quotation marks omitted).
"The Constitution presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be recti-
fied by the democratic process and that judicial intervention
is generally unwarranted no matter how unwisely we may
think a political branch has acted." Beach Communications,
508 U.S. at 314. Moreover, "courts are compelled under
rational-basis review to accept a legislature's generalizations
even when there is an imperfect fit between means and ends."
Heller, 509 U.S. at 321.

Applying these highly deferential principles, we cannot
conclude that Congress acted irrationally. Assisting disabled
children is a legitimate governmental purpose. It is at least
conceivable, moreover, that capping fees will produce addi-
tional resources for direct educational services, and that,
despite limiting parents' ability to use litigation as a means of
enforcing IDEA, section 130 will yield a net benefit for
disabled children. Notwithstanding the doubts of the families
and the President, supra at 12-13, 6, that possibility suffices
for the statute to survive rational basis review.

III.

In its cross-appeal, the District argues that section 130 not
only prohibits the District from paying attorneys' fees greater
than the prescribed amounts, but also prohibits courts from
awarding such fees. In resolving this claim, we are guided by

the well-settled principle that "[w]hile appropriation acts are
'Acts of Congress' which can substantively change existing
law, there is a very strong presumption that they do not."
Building & Construction Trades Dept., AFL-CIO v. Martin,
961 F.2d 269, 273 (D.C. Cir. 1992). As we have elsewhere
observed, "the established rule [is] that, when appropriations
measures arguably conflict with the underlying authorizing
legislation, their effect must be construed narrowly. Such
measures have the limited and specific purpose of providing
funds for authorized programs." Donovan v. Carolina Stal-
ite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984) (internal citation
and quotation marks omitted). Applying this principle, we
agree with the district court that section 130 limits only
District authority to pay fees from FY 1999 appropriations,
not court authority to award fees under IDEA.

We begin, as we must, with section 130's plain language:
"None of the funds contained in this Act may be made
available to pay the fees of an attorney who represents a
party who prevails in an action ... brought against [DCPS]
under [IDEA]" in excess of $50 per hour or $1,300 total.
Note that nothing in section 130 restricts court authority to
award fees under section 1415(i)(3)(B) of IDEA; the rider
concerns only District authority to pay fees from FY 1999
appropriations. As the district court observed, section 130
and IDEA regulate different government authorities: "The
IDEA attorney's fees provision provides the courts with
discretion ... to award reasonable attorneys' fees. By con-
trast, section 130 governs the District of Columbia's appropri-
ations and right to pay those fees."

To be sure, restricting federal court authority to award fees
might have been one way for Congress to help DCPS address
its special education problems. It is not our function, howev-
er, to determine whether such a limitation would "accor[d]
with common sense and the public weal. Our Constitution
vests such responsibilities in the political branches." Tennes-
see Valley Authority v. Hill, 437 U.S. 153, 195 (1978) (internal
quotation marks omitted); but see Slip Op. at 6 (Ginsburg, J.,
dissenting) (arguing that "common sense tells us" that section

130 is "a limitation upon the district court's authority to
award attorneys' fees").

In view of the "very strong presumption" that appropria-
tion acts do not amend substantive law, we face a straightfor-
ward question of statutory construction: has Congress unam-
biguously expressed an intent to limit court authority to
award fees under IDEA? When Congress wants to use an
appropriations act to limit court authority, it knows precisely
how to do so. For example, section 311 of the 2000 Appropri-
ations Act says, "section 5 of the Y2K Act ... is amended"
to state that "punitive damages in a Y2K action may not be
awarded against an institution of higher education." Section
311, Consolidated Appropriations Act, 2000, Pub. L. 106-113,
113 Stat. 1501, 1537 (Nov. 29, 1999). Section 130 contains no
similar limiting language.

The District argues that even if section 130 does not
expressly amend IDEA, the appropriations rider nevertheless
represents an implied limit on court authority to award fees.
Otherwise, the District claims, section 130 might increase the
District's eventual fee liability by encouraging litigation to
recover fees in excess of section 130's caps. Repeals by
implication, however, are disfavored--a policy that "applies
with even greater force when the claimed repeal rests solely
on an Appropriations Act." TVA, 437 U.S. at 190. "[I]n the
absence of some affirmative showing of an intention to repeal,
the only permissible justification for a repeal by implication is
when the earlier and later statutes are irreconcilable." Id.
(internal quotation marks omitted). No irreconcilable conflict
exists here since, as we have pointed out, section 130 and
IDEA are directed at different governmental entities.

Like the district court, we recognize the potential incongru-
ity of courts' awarding fees that section 130 prohibits the
District from paying during the same fiscal year. As the
Supreme Court has made clear, however, reconciling inhar-
monious statutory directives is Congress' responsibility, not
courts'. In TVA v. Hill, the Supreme Court faced a situation
similar to this case. Acting pursuant to the Endangered
Species Act, 16 U.S.C. s 1531 et seq., the Sixth Circuit halted
construction of a nearly completed TVA dam in order to
preserve the critical habitat of the snail darter. See TVA, 437
U.S. at 168-70. In the Supreme Court, TVA argued that

Congress, by appropriating funds for completion of the dam
after learning that the snail darter had been placed on the
endangered species list, had implicitly amended the Endan-
gered Species Act to allow construction to continue. See id.
at 189-90. Disagreeing, the Court explained that "[w]hile it
is emphatically the province and duty of the judicial depart-
ment to say what the law is, it is equally--and emphatically--
the exclusive province of the Congress not only to formulate
legislative policies and mandate programs and projects, but
also to establish their relative priority for the Nation." Id. at
194 (internal citation and quotation marks omitted). Just as
the Supreme Court left it to Congress to resolve the incon-
gruity of appropriating funds for a dam that another statute
prohibited, we leave to Congress the resolution of the incon-
gruity in this case.

The cases relied on by the dissent do not require a differ-
ent result. See Slip Op. at 2-11 (Ginsburg, J., dissenting).
In American Federation of Government Employees, AFL-
CIO v. Campbell, 659 F.2d 157 (D.C. Cir. 1980), we held that
an appropriations rider containing language similar to section
130 "modified pro tanto" a substantive statute. 659 F.2d at
161. The rider provided that "[n]o ... funds appropriated
for the fiscal year [1979] may be used to pay the salary or pay
of any individual ... in an amount which exceeds [a five and
one-half percent raise] as a result of any adjustments ...
under [the 'prevailing rate' act]." Pub. L. No. 95-429,
s 614(a), 92 Stat. 1001, 1018 (1978). Had the prevailing rate
statute been given effect, government employees would have
received raises in 1979 of between seven and twelve percent.
Because of the appropriations rider, however, pay increases
that year were limited to five and a half percent. Govern-
ment employees "sued to enforce their alleged rights to wage
increases based solely on the ... prevailing rate statute."
Campbell, 659 F.2d at 159. We rejected their claim, conclud-
ing that the appropriations act, by including a new ceiling on
wage increases, and "by express reference to the earlier
statute, effectively modified [it]." Id. at 161. We thus gave
the appropriations act the effect that its express terms re-
quired--limiting pay increases for FY 1979.

 Observing that section 130 expressly refers to IDEA and
includes a fee schedule, our dissenting colleague relies on
Campbell for the conclusion that Congress intended to modify
IDEA. See Slip Op. at 4-5 (Ginsburg, J., dissenting). We
think Campbell and this case are different. As in Campbell,
we have given the rider the effect that its plain text re-
quires--limiting the District's payment of fees for FY 1999--
but this case presents an additional question, one not raised
in Campbell: in the absence of clear legislative intent, evi-
denced either through statutory language or legislative histo-
ry, to amend substantive law, does an appropriations act
funding one governmental entity restrict the substantive au-
thority of a separate entity, indeed a separate branch of
government? Given the "very strong presumption" that ap-
propriation acts do not amend substantive statutes, neither
section 130's reference to IDEA nor its fee schedule warrants
an inference that an appropriations rider directed at the
District of Columbia restricts the authority of the federal
courts. Indeed, Congress could hardly have identified the
class of payments affected by section 130 without mentioning
IDEA. Nor could Congress have limited the District's FY
1999 payments without specifying the amounts of those limits.

If, as the dissent claims, section 130's ceiling on payments
and reference to IDEA sufficed to modify IDEA, the existing
presumption would be reversed and replaced with a presump-
tion that appropriation riders do amend substantive law.
Under the dissent's theory, Congress could limit the District's
fee payments from particular appropriations without also
restricting court authority to award fees only by adding an
express statement that substantive law remains intact. That
is not the law of this circuit.

National Treasury Employees Union v. Devine, 733 F.2d
114 (D.C. Cir. 1984), is equally distinguishable. See Slip Op.
at 10 (Ginsburg, J., dissenting). That case concerned Office
of Personnel Management regulations establishing new per-
sonnel policies for federal employees. Dissatisfied with the
new policies, Congress passed an appropriations rider provid-
ing that "[n]one of the funds appropriated under this Act
[funding OPM] shall be obligated or expended to implement,

promulgate, administer, or enforce [the OPM regulations]."
Devine, 733 F.2d at 116. The Director of OPM interpreted
the rider to mean that "each federal agency would simply
have to administer and enforce the regulations without OPM's
assistance...." Id. at 116. We rejected this interpretation
of the rider, resting our decision on two factors. First,
because "the express terms of the regulations require[d]
OPM to play a critical and continuing role in their implemen-
tation, administration, and enforcement," id. at 119, we doubt-
ed whether the regulations could "sensibly ... be effectuated
without OPM's continued participation." Id. at 120. Indeed,
we viewed the Director's interpretation of the rider as "abdi-
cating [OPM's] central responsibility for executing, adminis-
tering, and enforcing civil service rules and regulations." Id.
at 119 (internal quotation marks omitted). Second, after
examining the rider's legislative history, we found "clear
indications of Congress' intent" to foreclose significant
changes in personnel management policies. Id. at 120.

Neither factor is present in this case. To begin with,
because the District plays no role in a court's awarding of
fees, section 130 does not prevent the implementation of
IDEA's fee provision in the same manner as the rider in
National Treasury Employees Union v. Devine impeded
implementation of OPM's regulations. Nor, for the same
reason, does section 130 produce any "abdication" of District
responsibility. Moreover, section 130's legislative history
demonstrates no clear congressional intent to amend IDEA.
Although the House Appropriations Committee wrote of an
earlier version of section 130 that it would limit "the award of
attorney fees," H.R. Rep. No. 105-670, at 50 (1998), see also
Slip Op. at 5 (Ginsburg, J., dissenting), the Conference Re-
port accompanying the final bill speaks only of "plac[ing] a
limit on the payment of fees to attorneys." H.R. Conf. Rep.
No. 105-825, at 1116 (1998). As the Supreme Court has
observed, "[l]egislative materials may be without probative
value, or contradictory, or ambiguous, ... and in such cases
will not be permitted to control the customary meaning of
words...." United States v. Dickerson, 310 U.S. 554, 562
(1940).

To sum up, because we must narrowly construe section 130,
see Donovan, 734 F.2d at 1558, we interpret it to accomplish

neither more nor less than its plain text states. The rider's
express terms restrict District payment of IDEA fees from
FY 1999 appropriations. We give section 130 precisely that
effect. If Congress wishes to restrict court authority to
award fees against the District, it may do so either through
the D.C. appropriations bill or through the enactment of
substantive legislation amending IDEA. But until Congress
demonstrates clear intent to modify substantive law, either
through statutory language or persuasive legislative history,
we presume in accordance with circuit precedent that it did
not use section 130 to limit the power of federal courts to
award fees under IDEA.

The decision of the district court is affirmed.

So ordered.

 Ginsburg, Circuit Judge, dissenting in part: I concur in
Parts I and II of the opinion for the Court and in the
judgment in No. 99-5215, rejecting the families' constitutional
challenges. I dissent from Part III of the opinion and from
the judgment in No. 99-5216 because I believe that for FY
1999 the Congress modified the authority of the district court
to award attorneys' fees under s 615 of the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. s 1415.

I. Background

The Congress reenacted s 615 of the IDEA with considera-
ble revisions in 1997. See Individuals with Disabilities Edu-
cation Act Amendments for 1997, Pub. L. No. 105-17, s 101,
110 Stat. 37, 88 (1997). Section 615 includes the following
provision for attorneys' fees:

In any action or proceeding brought under this section,
the [district] court, in its discretion, may award reason-
able attorneys' fees as part of the costs to the parents of
a child with a disability who is the prevailing party.

Id. at 92, codified at 20 U.S.C. s 1415(i)(3)(B).

The Congress revisited the subject of attorneys' fees in
IDEA cases two years later when it passed the District of
Columbia Appropriations Act of 1999. See Omnibus Consoli-
dated and Emergency Supplemental Appropriations Act of
1999, Pub. L. No. 105-277, s 101(c), 112 Stat. 2681 (1998).
Section 130 of the 1999 D.C. Appropriations Act provides:

None of the funds contained in this Act may be made
available to pay the fees of an attorney who represents a
party who prevails in an action, including an administra-
tive proceeding, brought against the District of Columbia
Public Schools under the Individuals with Disabilities
Education Act (20 U.S.C. s 1400 et seq.) if
(1) the hourly rate of compensation of the attorney
exceeds the hourly rate of compensation under section
11-2604(a), District of Columbia Code [i.e., $50 per hour],
or
(2) the maximum amount of compensation of the attor-
ney exceeds the maximum amount of compensation un-
der section 11-2604(b)(1), District of Columbia Code [i.e.,

$1,300 total], except that compensation and reimburse-
ment in excess of such maximum may be approved for
extended or complex representation in accordance with
section 11-2604(c), District of Columbia Code.

Obviously, s 130 has some effect upon attorneys' fees
under the IDEA. The question before us is what effect: Is
s 130 a limitation for FY 1999 upon the court's pre-existing
authority in s 615 to award attorneys' fees in excess of $50
per hour and $1,300 per case? Or does it merely "prohibit[ ]
the District from paying during the same fiscal year" any fee
the district court might award in excess of those caps, Slip
Op. at 15, thereby leaving the District liable for such awards
after the end of that fiscal year? Today the court, citing an
interpretive presumption and then declining to address the
evidence offered by the District to overcome that presump-
tion, gives the latter answer. I would give the former: s 130
limits the authority of the district court under IDEA s 615
because in s 130 the Congress "by clear implication, if not
express statement, modified pro tanto the previous substan-
tive law." American Federation of Government Employees
v. Campbell, 659 F.2d 157, 161 (D.C. Cir. 1980).

II. Analysis

In Campbell this court held that an appropriations rider
strikingly similar in text and structure to s 130 modified pro
tanto the prior substantive statute to which it referred.
There, the plaintiffs were federal employees whose wages
were determined under the "prevailing rate statute," 5 U.S.C.
ss 5341-5349 (1976 & Supp. III 1979). That statute required
that wages be "fixed and adjusted from time to time ... in
accordance with prevailing rates," as determined by wage
surveys of the private sector to be conducted by "lead
agenc[ies]." Id. s 5343(a), (a)(3).

The lead agencies had conducted their surveys and recom-
mended wage increases of between 7% and 12% for the
plaintiffs. See Campbell, 659 F.2d at 159. Thus, the employ-
ing agencies were required by the prevailing rate statute to
order pay raises in this 7%-12% range (except insofar as they

may have found the "public interest" required less--a point
not relevant in Campbell or here). Before the employing
agencies had actually ordered any wage increase, however,
the Congress passed an appropriations rider that provided:

No ... funds appropriated for the fiscal year [1979] ...
may be used to pay the salary or pay of any individual
... in an amount which exceeds [a 5.5% raise] as a result
of any adjustments which take effect during such fiscal
year under ... (3) section 5343 of Title 5 ... if such
adjustment is granted pursuant to a wage survey....

Pub. L. No. 95-429, s 614(a), 92 Stat. 1001, 1018 (1978). The
Civil Service Commission interpreted the rider as prohibiting
the employing agencies from granting any pay increase great-
er than 5.5%, and the agencies therefore ordered raises of
only that percentage. See Campbell, 659 F.2d at 159.

The plaintiffs argued to this court that the rider did not
modify the prevailing rate statute, and therefore the employ-
ing agencies were still required by law to order pay raises in
the 7%-12% range recommended by the lead agencies. See
id. at 160. We rejected this argument and concluded that for
the fiscal year the appropriations rider modified the prevail-
ing rate statute, limiting the plaintiffs' salary increase below
the amount that would have been called for under that
statute. We reached this conclusion based exclusively upon
two elements in the text of the rider, which we accepted as
clearly and unequivocally demonstrating that the Congress
meant to and did modify the preexisting statute.

First, the appropriations rider expressly referred to the
prevailing rate statute. It was upon precisely this basis that
we distinguished Tennessee Valley Authority v. Hill, 437 U.S.
153 (1978), upon which the court relies today, as well as
United States v. Langston, 118 U.S. 389 (1886), which is to
like effect. See Campbell, 659 F.2d at 160-61 & n.9. The
importance of an express reference to the preexisting statute
is that it ensures that Members of Congress were aware that
the new legislation would affect the operation of the preexist-
ing statute. See United States v. Hansen, 772 F.2d 940, 944-
45 (D.C. Cir. 1985). The Supreme Court had previously

recognized the importance of such a reference (or lack there-
of) in TVA v. Hill itself, see 437 U.S. at 189, and two of our
sister circuits have since done so, see United States v. Joya-
Martinez, 947 F.2d 1141, 1144 (4th Cir. 1991); Republic
Airlines, Inc. v. United States Dep't of Transp., 849 F.2d
1315, 1322 (10th Cir. 1988). But compare Firebaugh Canal
Co. v. United States, 203 F.3d 568, 576 n.4 (9th Cir. 2000)
(express reference "not [ ] meaningful"), with id. at 579
(Trott, J., dissenting) (express reference crucial).

Second, in Campbell we noted that the Congress had
"specifically set a ceiling on wage increases" in the appropria-
tions rider, which differentiated the rider from a "mere
failure to appropriate funds." 659 F.2d at 161 n.10. We
distinguished New York Airways, Inc. v. United States, 369
F.2d 743 (Ct. Cl. 1966), upon this basis. Again, the Supreme
Court had already drawn the same distinction: The mere act
of appropriating funds, see TVA v. Hill, 437 U.S. at 190, or of
failing to do so, see Langston, 118 U.S. at 394, says little
about the underlying substantive obligation; but inclusion in
an appropriations act of a new framework to govern the
substantive obligation indicates that the Congress was modi-
fying the prior statutory framework, see, e.g., United States v.
Mitchell, 109 U.S. 146, 149-50 (1883). Therefore we conclud-
ed that because the "Congress specifically set a ceiling on
wage increases, and directly referred to the prevailing rate
statute as one of the substantive statutes affected by the
appropriations bill," the appropriations rider "contains words
that by clear implication, if not express statement, modified
pro tanto the previous substantive law." Campbell, 659 F.2d
at 161 & n.10.

In s 130 we see the same two textual elements that were
dispositive in Campbell: It expressly refers to "the fees of an
attorney who represents a party who prevails in an action ...
under the Individuals with Disabilities Education Act (20
U.S.C. s 1400 et seq.)," and it lays out a comprehensive new
framework for determining fees. As to the second textual
element, this case is an even stronger one than Campbell:
Where the appropriations rider in Campbell simply set a cap
on wage increases, s 130 not only sets caps on attorneys' fees

but also incorporates a detailed procedure by which a court
may, under specified conditions, waive a cap. Section 130
thus "contains words that by clear implication, if not express
statement, modif[y] pro tanto the previous substantive law."
Campbell, 659 F.2d at 161.*

This conclusion drawn directly from the text of s 130 is
also reflected in the legislative history of that provision. The
District notes that the House Appropriations Committee, in
the only report to discuss s 130 in any detail, stated that
s 130 "limit[s] the award of attorney fees in special education
cases." H.R. Rep. No. 105-670, at 50 (1998) (emphasis sup-
plied) (discussing predecessor version of s 130 identical in
relevant respects to enacted version). President Clinton
agreed, both when he signed s 130 into law, see Statement by
President William J. Clinton upon Signing H.R. 4328, 34
Weekly Comp. Pres. Docs. 2108, 2112 (Nov. 2, 1998) ("the Act
also includes language that would cap the award of plaintiffs'
attorneys' fees in [IDEA] cases"), and when he vetoed a bill
containing essentially the same rider the following year, see
District of Columbia Appropriations Act, 2000--Veto Mes-
sage, 145 Cong. Rec. H8941, H8942 (Sept. 28, 1999) ("[FY

__________
* That s 130 expressly limits only the "pay[ment]" of IDEA
attorneys' fees raises the possibility--and indeed, as the court
notes, the presumption--that the Congress meant to affect only the
payment and not the award of such fees. The Supreme Court has
long held, however, that the use of "payment" or a similar term in
an appropriations act does not end a court's inquiry into congres-
sional intent. See United States v. Dickerson, 310 U.S. 554, 561-62
(1940) ("deny[ing] that such words [prohibiting only payment during
a particular fiscal year] when used in an appropriation bill are
words of art or have a settled meaning" sufficient to end the court's
inquiry into congressional intent).

Both the Supreme Court and this court have found that appropri-
ations riders that by their express terms limit or prohibit only
payment may nonetheless alter the underlying substantive obli-
gation and not just its payment. See United States v. Will, 449
U.S. 200, 205-08, 223-24 (1980); Campbell, 659 F.2d at 159 n.6;
City of Los Angeles v. Adams, 556 F.2d 40, 46 (D.C. Cir. 1977); see
also Tayloe v. Kjaer, 171 F.2d 343, 344 (D.C. Cir. 1948).

2000 provision identical in relevant part to s 130] would cap
the award of plaintiffs' attorneys' fees in [IDEA] cases")
(emphases supplied).

Finally, the District argues that the incongruous and plain-
ly unintended results ensuing from the court's interpretation
suggest that s 130 is a limitation upon the district court's
authority to award attorneys' fees; common sense tells us the
District is right. Otherwise, one would have to believe that
the Congress intended awards of attorneys' fees above the
caps to accumulate as IOUs, payable at the end of the fiscal
year when the appropriations rider is no longer operative. Of
course, the Congress does, not infrequently, decline to appro-
priate money for an undertaking authorized under prior law.
In cases where the prior statute merely authorizes the under-
taking, however, no obligation can lawfully be incurred until
funds have been appropriated, see 31 U.S.C. 1341(a); the
effect in such a case is to postpone until a later date any steps
that actually cause the Government to incur an obligation.
This case is entirely different: Under the court's interpreta-
tion of s 130, the District will continue to incur additional
liabilities, which will continue to accumulate while its authori-
ty to pay them remains in suspense.

The court today does not point to any reason for thinking
the Congress really intended such a peculiar result. (Nor,
since they chose not to file a brief in the District's cross-
appeal, do the cross-appellee families suggest any such rea-
son; nor did the district court.) There are, to be sure, cases
in which a court has held that the Congress delayed only the
payment and not the underlying incurrence of an obligation,
see, e.g., Langston, 118 U.S. at 394; but these involve mere
failures to appropriate a sufficient sum where there is no
other indication the Congress intended that the Government
not incur new liabilities, see id., or there is specific legislative
history demonstrating the Congress understood it was not
altering the Government's underlying liability, see New York
Airways, 369 F.2d at 751. Where, on the other hand, the
Congress has done more than merely fail to appropriate a
sum sufficient to cover an accumulating obligation, the Su-
preme Court has held that "it is not to be believed that

Congress ... was simply appropriating a part of that which it
knew was due." Belknap v. United States, 150 U.S. 588, 595
(1893); see also Will, 449 U.S. at 224 ("Congress intended to
rescind [Adjustment Act] raises entirely, not simply to con-
sign them to the fiscal limbo of an account due but not
payable"); cf. National Treasury Employees Union v. De-
vine, 733 F.2d 114, 120 (D.C. Cir. 1984) (rejecting interpreta-
tion of appropriations resolution that would have resulted in
"steady accumulation of unreviewed proposals").

As the District points out in its brief, the result of the
court's interpretation of s 130 is in fact more than just
peculiar--it accomplishes the exact opposite of what the
Congress sought to achieve through s 130. Most IDEA
complaints filed with the District are resolved in an adminis-
trative proceeding before the D.C. school system, that is,
without resort to the district court. Before s 130 was enact-
ed, the District had adopted guidelines under which, as
required by the IDEA, it would award and pay reasonable
attorneys' fees in such cases upon the submission of a proper
fee application; thus in FY 1998 the District, without any
court involvement, approved and paid $10,400,000 in IDEA
attorneys' fees for administrative proceedings; during the
same year the District paid only $664,000 in fees awarded by
the court. When s 130 became effective, however, the Dis-
trict revised its guidelines, in conformity therewith, to pre-
clude any fee application that sought attorneys' fees above
the caps. In other words, the District interpreted s 130 as
limiting its authority to award as well as to pay attorneys'
fees above the caps during FY 1999--an interpretation the
court today necessarily accepts as correct in the way it tries
to distinguish Campbell, Slip Op. at 17.

Limiting awards by the District without limiting awards by
the district court would actually increase the District's fee
liability, however. A family that prevails in an administrative
proceeding but is denied by the District a "reasonable"
attorneys' fee because the amount exceeds the caps may
simply repair to the district court for an award of fees greater
than what the District can award, see Moore v. District of
Columbia, 907 F.2d 165 (D.C. Cir. 1990) (en banc); moreover,

the district court may include in its uncapped award reason-
able fees for the attorneys' fee litigation, see Moore v. District
of Columbia, 674 F. Supp. 901 (D.D.C. 1987) (awarding
$29,357 for IDEA representation and $19,117 for representa-
tion in subsequent attorneys' fee litigation before the district
court). Under the court's interpretation of s 130, therefore,
the Congress not only failed effectively to cap the fees
awarded against the District, it managed to increase the
District's fee liability--as well as the District's expenditures
for its own legal representation--by requiring and enabling
families to go to district court to obtain a higher award. I do
not think that was what the legislature meant to do or did.
See Clinton v. New York, 524 U.S. 417, 430 (1998) (rejecting
interpretation of statute that "would produce an absurd ...
result which Congress could not have intended").

The court today reaches the contrary conclusion by way of
the presumption that an appropriations act does not alter
substantive law. Slip Op. at 14, 15, 17. The Supreme Court
has made clear, however, that a presumption used to inter-
pret a statute is "just that--a presumption [which] may be
overcome" by contrary evidence that provides a "reliable
indicator of congressional intent." Block v. Community Nu-
trition Inst., 467 U.S. 340, 349 (1984). In keeping with this
teaching, both the Supreme Court and this court have found
appropriations acts to have modified preexisting substantive
law in the light of evidence from the text, see Campbell, 659
F.2d at 160-61, from legislative history, see, e.g., Will, 449
U.S. at 224, or from the structure of the act, see, e.g.,
Mitchell, 109 U.S. at 149-50; and, yes, in the light of common
sense as well, see, e.g., Belknap, 150 U.S. at 595; Devine, 733
F.2d at 120. The District has sought to overcome the pre-
sumption with evidence from all of these sources; but the
court today, scarcely even acknowledging the District's argu-
ments, relies upon "bare statement[s] of law" instead of
evaluating the evidence to determine whether "the facts ...
present a different picture of congressional intent." Camp-
bell, 659 F.2d at 160.*

__________
* For example, the court misreads the Supreme Court's decision
in TVA v. Hill as barring us from considering the District's

 The greatest problem for the court is that no matter how it
analyzes s 130 it runs into Campbell. As for the undoubted
presumption against finding that an appropriations act effects
a substantive modification of law, in Campbell we concluded
unequivocally that the appropriations act repealed pro tanto
the prevailing rate statute, and the presumption was over-
come based upon only the two textual elements that are
likewise present in s 130. As for the undoubted rule that
repeal by implication is disfavored, even if we treat s 130 as
an implied repealer--and I do not believe that either this case
or Campbell involves an implied repealer as exemplified by
the argument urged upon the Court in TVA v. Hill--the
same two textual factors provide the "affirmative showing of
an intent to repeal" required under TVA v. Hill, 437 U.S. at
190.

The court today makes one attempt to distinguish Camp-
bell from this case: In Campbell the employing agency both
granted and paid any wage increase, whereas in this case the
district court awards fees while the District pays them. Slip
Op. at 14, 17. That factoid, the court claims, poses a question
in this case that was not present in Campbell: "in the absence
of clear legislative intent ... to amend substantive law, does
an appropriations act funding one governmental entity re-
strict the substantive authority of a separate entity, indeed a
separate branch of government?" Slip Op. at 17. Assuming
counterfactually, as the question does, the absence of clear
legislative intent, the answer would of course be no. In this
case, however, we have the same evidence of legislative intent

__________
extensive and uncontested evidence regarding incongruous out-
comes in order to determine what the Congress most likely meant
by s 130. Slip Op. at 15. The portion of TVA v. Hill quoted by the
court, however, Slip Op. at 14, 16, merely states that after a court
has determined what the Congress commanded in the statute, it
should not use its remedial discretion effectively to nullify that
command by withholding a remedy based upon its own "appraisal of
the wisdom or unwisdom of [the] particular course consciously
selected by the Congress." Id. at 194. This rule certainly does not
authorize, let alone require, this court to ignore the District's
arguments about what the statute means in the first place.

that we held sufficient in Campbell to show the Congress
meant to modify substantive law. The real issue lurking in
the court's rhetorical question, then, is not whether evidence
of congressional intent is required but whether such evidence
can ever show that an appropriations act funding one govern-
mental entity is meant to restrict the substantive authority of
another entity. As a pair of cases from this court demon-
strates, the answer is yes, if that is what the Congress
discernably meant the appropriations act to do.

In Devine, 733 F.2d at 114, the Office of Personnel Man-
agement had issued new personnel regulations less than a
month before the Congress enacted an appropriations rider
stating that "[n]one of the funds appropriated under this Act
[funding the OPM] shall be obligated or expended to imple-
ment, promulgate, administer, or enforce the [new OPM
regulations]." 733 F.2d at 116. Based upon the precise
wording of the rider, the OPM took the position that the rider
"does not prevent any agency other than OPM from imple-
menting, administering and enforcing the regulations within
that agency." Id. at 116-17. We rejected that argument for
two reasons, both based expressly upon the intent of the
legislature: first, the Congress did not intend personnel
regulations to be applied by other agencies without the
OPM's involvement; and second, "even assuming arguendo
that the regulations could be implemented workably without
further participation by the OPM, it is evident that Congress
intended to prevent this." Id. at 119-20.

In Donovan, 734 F.2d at 1547, the respondent, who had
been cited for a mine safety violation, argued that an appro-
priations rider prohibiting the Mine Safety and Health Ad-
ministration (MSHA) from expending appropriated funds to
"enforce any standard, rule, regulation or order under the ...
Act" precluded the Government from appealing an adverse
administrative ruling on the mine safety violation. 734 F.2d
at 1557. We rejected that argument, noting that the Office of
the Solicitor of Labor, which conducted the appeal, was not
funded by the MSHA appropriation. We did not stop at that
observation, however; we went on to inquire into what the
Congress intended to accomplish through the rider--as evi-

denced by the untoward consequences that would ensue if the
appropriations rider were interpreted to amend the pre-
existing substantive law applicable to another entity:

[The appropriations rider] was the beginning of an effort
by some members of Congress to shift [certain mining]
operations from MSHA to OSHA jurisdiction. That
effort ultimately did not succeed and we think it would be
wholly unreasonable to suppose that Congress intended a
temporary suspension to wreak the procedural havoc
with ongoing appeals that [petitioner] urges. We inter-
pret [the rider] to indicate only Congress' intent that
MSHA initiate no new enforcement litigation.

Id. at 1558. Thus, the court did not interpret the rider as
doing anything more than limiting new enforcement actions
by the MSHA because there was no indication that the
Congress had the seemingly unreasonable intent to affect
actions already in the hands of the Solicitor.

Although the results in Devine and Donovan look in differ-
ent directions, they are not in conflict. Quite the contrary,
the court in each case asked precisely the same question: Did
the Congress intend an appropriations act that expressly
places limits upon only one governmental entity to limit the
authority of another governmental entity? In Devine the
court said yes, while in Donovan the court (acting two weeks
later through two of the same judges) said no. The question
should be the same here as well, and based upon the text of
s 130 and the incongruities that will result from the contrary
interpretation, I think the clear answer is that the Congress
did intend s 130 to modify pro tanto s 615 of the IDEA.*

__________
* The court finds Devine "distinguishable" on the ground that the
legislative history was more clear in that case. Slip Op. at 17-18.
In other words, the court does not dispute that the Congress may
limit the authority of an entity not specifically named in the statute;
it seems to think, however, that the court must find a statement to
that effect in the legislative history in order for us so to conclude. I
think it more appropriate to rely primarily upon the textual ele-
ments to which Campbell directs us--all the more confidently in

 III. Summary and Conclusion

The text of s 130 makes clear that the Congress modified
for FY 1999 the authority of the district court to award
attorneys' fees under s 615 of the IDEA, 20 U.S.C. s 1415.
Even if s 130 is analyzed under the rubric of an implied
repealer, the same text provides the clear and manifest
"affirmative showing of an intention to [modify]" required
under TVA v. Hill, 437 U.S. 190. I therefore dissent from
Part III of the opinion for the Court and from the judgment
in No. 99-5216.

__________
view of the absurd results brought on by the contrary interpreta-
tion--and only secondarily upon legislative history.