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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2003 Decided August 15, 2003
No. 02-7040
OYIN AKINSEYE, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01769)
Robert I. Berlow argued the cause for the appellants.
Arthur H. Fawcett, Jr. and Myrna Lee Fawcett were on
brief.
Donna M. Murasky, Assistant Corporation Counsel, Dis-
trict of Columbia, argued the cause for the appellee. Charles
L. Reischel, Deputy Corporation Counsel, at the time the
brief was filed, was on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Eileen L. Ordover was on brief for amici curiae Senators
Edward M. Kennedy et al. in support of the appellants.
Carl W. Hampe was on the brief for amici curiae Council
of Parent Attorneys and Advocates et al. in support of the
appellants.
Before: HENDERSON, RANDOLPH and GARLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge GARLAND.
KAREN LECRAFT HENDERSON, Circuit Judge: The appellants,
minor children and the parents, guardians and court-
appointed advocates of minor children, challenge the district
court’s order dismissing their complaint for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6). The appellants
had initiated administrative proceedings under the Individu-
als with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400
et seq., to compel the District of Columbia (District) to
provide special education services to the disabled minor chil-
dren in this action. The District settled with each of the
appellants and voluntarily agreed to pay attorney’s fees
which, the appellants contend, were paid late. They filed this
action to recover interest on the late-paid fees. The district
court granted the District’s motion to dismiss on the ground
that under the Supreme Court’s decision in Buckhannon
Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources, 532 U.S. 598 (2001), parties
who settle their claims at the administrative level are not
‘‘prevailing parties’’ entitled to attorney’s fees under the
IDEA. Akinseye v. District of Columbia, 193 F. Supp. 2d
134 (2002).
* * *
We do not reach the question of whether one may recover
attorney’s fees as a ‘‘prevailing party’’ under the IDEA if the
matter is settled at the administrative stage because we
conclude that the district court lacked subject-matter jurisdic-
tion to hear the case. Although the District has not raised
3
lack of jurisdiction in these proceedings, we may raise the
question of subject-matter jurisdiction sua sponte. Houston
Bus. Journal, Inc. v. Office of the Comptroller of the Curren-
cy, 86 F.3d 1208, 1211 (D.C. Cir. 1996). Moreover, because
subject-matter jurisdiction is ‘‘an Art. III as well as a statuto-
ry requirement TTT no action of the parties can confer
subject-matter jurisdiction upon a federal court.’’ Ins. Corp.
of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982).
The only asserted basis for subject-matter jurisdiction is
section 1415(i)(3)(B) of the IDEA, which provides that ‘‘[i]n
any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys’ fees
as part of the costs to the parents of a child with a disability
who is the prevailing party.’’ 20 U.S.C. § 1415(i)(3)(B). Yet
in their complaint the appellants did not seek the recovery of
attorney’s fees under the IDEA, but rather the recovery of
some $17,000 in interest for the delayed payment of such fees.
In other words, they sought reimbursement for the loss of the
use of their money during the period between the date they
requested payment of their attorney’s fees and the date they
actually received payment from the District. The district
court believed that the right to interest, if any, flowed from
the right to attorney’s fees under the IDEA; upon determin-
ing that the appellants were not ‘‘prevailing parties’’ under
the IDEA, and thus not entitled to attorney’s fees, the district
court concluded that the appellants were ipso facto not enti-
tled to interest. See Akinseye, 193 F. Supp. 2d at 136.
While the latter approach is unquestionably correct, the
former is not.
Unlike Bailey v. District of Columbia, 839 F. Supp. 888
(D.D.C. 1993), the case on which the appellents chiefly rely,
the question of ‘‘reasonable attorneys’ fees’’ recoverable un-
der the IDEA is not before us. The District’s decision to pay
attorney’s fees voluntarily—and the appellants’ decisions to
accept these payments—rendered the question of statutory
entitlement moot. And neither the IDEA nor any other
federal statute cited to us, or of which we are aware, affords
the appellants an independent cause of action to recover
4
interest on attorney’s fees paid voluntarily but late.* Accord-
ingly, there is no federal question before us.
The appellants’ claim resembles instead a claim for post-
judgment interest. Of course, there are no judgments to
speak of here because (1) the parties settled the IDEA claims
and (2) the District subsequently paid attorney’s fees volun-
tarily. But had the district court entered a judgment award-
ing ‘‘reasonable attorneys’ fees’’ under the IDEA, and had the
District subsequently delayed in paying those fees, the appel-
lants would not have had a claim under the IDEA but rather
under 28 U.S.C. § 1961(a), which provides that ‘‘[i]nterest
shall be allowed on any money judgment in a civil case
recovered in a district court.’’ See, e.g., Associated Gen.
Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482, 485 (6th
Cir. 2001) (concluding that phrase ‘‘any money judgment’’ in
§ 1961(a) includes judgment awarding attorney’s fees & col-
lecting similar circuit court decisions). Unable to state a
claim under 28 U.S.C. § 1961(a) for lack of a ‘‘money judg-
ment,’’ the appellants’ only recourse for the District’s delay in
payment lies, if at all, under District of Columbia law.
* * *
For the reasons stated, the decision of the district court is
reversed and the case is remanded with the instruction to
dismiss the complaint for lack of subject-matter jurisdiction.
It is so ordered.
* Our dissenting colleague cites cases that are not on point—they
involve setting the initial fee award, including an amount, if any, to
account for delay. See Dissent at 1 (citing Missouri v. Jenkins, 491
U.S. 274, 284 (1989); Copeland v. Marshall, 641 F.2d 880, 892–93
(D.C. Cir. 1980) (en banc)). No such claim is made here.
1
GARLAND, Circuit Judge, dissenting: The district court
denied the plaintiffs’ claim to interest for late payment of
attorney’s fees on the ground that the Individuals with Dis-
abilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., gave
them no right to such fees in the first place. That issue —
whether the plaintiffs had an underlying right to fees — was
the only issue briefed to this court.
My colleagues have instead presented a case for the propo-
sition that, even if the plaintiffs were entitled to attorney’s
fees, they do not have a claim for interest under the IDEA.
But there is also a case to be made for the opposite proposi-
tion, that the IDEA itself provides a federal cause of action
for such interest as ‘‘part of the costs’’ of the litigation, 20
U.S.C. § 1415(i)(3)(B). Cf. Missouri v. Jenkins, 491 U.S. 274,
284 (1989) (holding that ‘‘[a]n adjustment for delay in pay-
ment is TTT an appropriate factor in the determination of
what constitutes a reasonable attorney’s fee under’’ 42 U.S.C.
§ 1988); Copeland v. Marshall, 641 F.2d 880, 892–93 (D.C.
Cir. 1980) (en banc) (holding that ‘‘in Title VII and similar
fee-setting cases,’’ a court may grant an ‘‘adjustment to
reflect the delay in receipt of payment’’ because such delay
‘‘deprives the eventual recipient of the value of the use of the
money in the meantime’’). Just how strong the plaintiffs’
claim for interest might be is hard to assess, since neither
side has submitted briefs on the question. ‘‘Dismissal for
lack of subject-matter jurisdiction,’’ however, ‘‘is proper only
when the claim is so insubstantial, implausible, foreclosed by
prior decisions TTT, or otherwise completely devoid of merit
as not to involve a federal controversy.’’ Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 89 (1998) (internal quotation
marks omitted); see Bell v. Hood, 327 U.S. 678, 682–83 (1946).
Whether or not the plaintiffs’ claim would ultimately prevail,
it certainly does not fall into any of those categories.
Because the question of the validity of the plaintiffs’ claim
to interest therefore goes to the merits of the dispute and not
to our subject-matter jurisdiction, I would follow our usual
practice and decline to dispose of this appeal on a ground ‘‘not
raised in the parties’ briefs.’’ Time Warner Entm’t Co. v.
2
FCC, 93 F.3d 957, 964 (D.C. Cir. 1996); see Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Accordingly, I
respectfully dissent.