United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2006 Decided May 5, 2006
No. 05-7001
JAMEL WHATLEY
AND ESTHER WILLIAMS,
GUARDIAN AND NEXT FRIEND OF MINOR
JAMEL WHATLEY,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 98cv02961)
Diana M. Savit argued the cause and filed the briefs for
appellants.
William J. Earl, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellees. With him on the brief were Robert J. Spagnoletti,
Attorney General, and Edward E. Schwab, Deputy Attorney
General.
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Before: HENDERSON and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Jamel Whatley and his
grandmother and guardian, Esther Williams, appeal the District
Court’s denial of their motion for attorneys’ fees in excess of the
limits or “caps” imposed by Congress for actions against the
District of Columbia (“District”) under the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (2000)
(“IDEA”). In the District’s appropriations acts of 1999, 2000,
and 2001, Congress capped attorneys’ fees the District could pay
parties who prevailed against it in judicial and administrative
IDEA actions. In § 140 of the D.C. Appropriations Act of 2002
(“§ 140”), Congress extended the application of those caps
indefinitely, mandating that no subsequent appropriations act
may fund attorneys’ fees above the caps for actions brought or
work completed during the previously capped fiscal years.
Appellants argue that despite its plain language, § 140 did
not amend IDEA, because it was included in an appropriations
act. In addition, even if Congress intended to suspend the
courts’ ability to award such fees indefinitely, appellants
contend that § 140 should be construed narrowly so as to avoid
potential constitutional infirmities. According to appellants, if
§ 140 is read to extend beyond fiscal year 2002 (“FY 2002”), it
would unconstitutionally bind future Congresses and violate the
separation of powers doctrine by encroaching on the exclusive
domain of the judiciary.
The District Court disagreed with appellants, finding that
§ 140 unambiguously amended IDEA and that no serious
constitutional issues were at stake. See Whatley v. District of
Columbia, 328 F. Supp. 2d 15, 19-20 (D.D.C. 2004); Armstrong
v. Vance, 328 F. Supp. 2d 50, 61 (D.D.C. 2004). In the District
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Court’s view, § 140 undeniably limited the award of certain
attorneys’ fees indefinitely for actions under IDEA. We affirm.
The language of § 140 makes it perfectly clear that
Congress intended to limit indefinitely the award of above-cap
fees for work performed on actions brought under IDEA from
1999 to 2001. Although there is “‘a very strong presumption’”
that appropriations acts do not substantively change existing
law, see Calloway v. District of Columbia, 216 F.3d 1, 9 (D.C.
Cir. 2000) (quoting Bldg. & Constr. Trades Dep’t, AFL-CIO v.
Martin, 961 F.2d 269, 273 (D.C. Cir. 1992)), that presumption
may be overcome, as it has been here. We also find, in
agreement with the District Court, that § 140 raises no
constitutional issues.
I. BACKGROUND
A. Congressional Fee Caps
In 1998, Congress expressed its dismay over the “growth in
legal expenses and litigation associated with special education
in the District of Columbia.” H.R. REP. NO. 105-670, at 50
(1998). Due to the proliferation of suits brought against the
District under IDEA, Congress believed that the District’s
sizeable annual legal bills began “usurping . . . resources from
education to pay attorney fees.” Id. In an effort to address this
issue, the House Committee on Appropriations added a rider to
the D.C. Appropriations Act of 1999 (“§ 130”) which was
intended to limit the District’s ability to pay opposing parties’
attorneys’ fees for the 1999 fiscal year (“FY 1999”). This rider
stated:
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 administrative
proceeding, brought against the District of Columbia Public
Schools under the Individuals with Disabilities Education
Act (20 U.S.C. 1400 et seq.) if –
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(1) the hourly rate of compensation of the attorney
exceeds [$50]; or
(2) the maximum amount of compensation of the
attorney 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 Columbia Code.
Section 130 of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999, Pub. L. No. 105-277,
112 Stat. 2681, 2681-138-39 (1998). This rider was enacted by
Congress in 1998. Congress enacted similar provisions in 1999
and 2000 for the fiscal years of 2000 and 2001, respectively.
See Section 129 of the District of Columbia Appropriations Act
of 2000, Pub. L. No. 106-113, 113 Stat. 1501, 1517 (1999);
Section 122 of the District of Columbia Appropriations Act of
2001, Pub. L. No. 106-522, 114 Stat. 2440, 2464 (2000).
In early 1999, a group of disabled students and their parents
challenged § 130’s cap on attorneys’ fees. They argued that
§ 130 violated the Due Process Clause of the Fifth Amendment
and that it was preempted by IDEA. They also sought a
declaratory ruling that § 130 limited only the District’s ability to
pay attorneys’ fees, not the courts’ authority to award them. In
Calloway v. District of Columbia, this court rejected the group’s
constitutional and preemption claims, but agreed that § 130
“limits only District authority to pay fees from FY 1999
appropriations, not court authority to award fees under IDEA.”
216 F.3d at 9. In so finding, the court noted that there is a
“‘very strong presumption’ that appropriations acts do not
amend substantive law,” and that § 130 did not “unambiguously
express[] an intent to limit court authority to award fees under
IDEA.” Id.
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In direct response to Calloway, Congress sought to fortify
its fee-cap regime in the D.C. Appropriations Act of 2002
(“2002 Appropriations Act”). Rather than simply incorporating
another fee cap, Congress mandated:
Notwithstanding 20 U.S.C. 1415, 42 U.S.C. 1988, 29
U.S.C. 794a, or any other law, none of the funds
appropriated under this Act, or in appropriations Acts for
subsequent fiscal years, may be made available to pay
attorneys’ fees accrued prior to the effective date of this Act
that exceeds a cap imposed on attorneys’ fees by prior
appropriations Acts that were in effect during the fiscal year
when the work was performed, or when payment was
requested for work previously performed, in an action or
proceeding brought against the District of Columbia Public
Schools under the Individuals with Disabilities Education
Act (20 U.S.C. 1400 et seq.).
Section 140(a) of the District of Columbia Appropriations Act
of 2002, Pub. L. No. 107-96, 115 Stat. 923, 958 (2001)
(“Section 140(a)”). Congress subsequently returned to its pre-
2002 fee-cap framework in the District’s appropriations acts of
2003, 2004, and 2005. See Section 144 of the Consolidated
Appropriations Resolution of 2003, Pub. L. No. 108-7, 117 Stat.
11, 131-32 (2003); Section 432 of the Consolidated
Appropriations Act of 2004, Pub. L. No. 108-199, 118 Stat. 3,
141 (2004); Section 327 of the District of Columbia
Appropriations Act of 2005, Pub. L. No. 108-335, 118 Stat.
1322, 1344 (2004).
B. Jamel Whatley & the District of Columbia Public Schools
In 1995, Esther Williams became increasingly concerned
about her grandson Jamel’s lack of progress at school. He was
in the process of repeating first grade, although the D.C. Public
Schools (“DCPS”) had not undertaken a formal evaluation of his
academic development. On February 15, 1996, Williams filed
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a “Form 6,” which triggers DCPS’s evaluation and possible
placement of students that may have special academic needs.
DCPS thereafter began an assessment of Jamel that lasted
approximately two years. As a result of this delay, on February
18, 1998, Williams requested that the DCPS Student Hearing
Office conduct a due process hearing in accordance with IDEA.
See 20 U.S.C. § 1415(f).
DCPS failed to act on Williams’ hearing request. On
December 4, 1998, Williams filed an action on Jamel’s behalf
in the District Court. She sought an order directing a due
process hearing on DCPS’s alleged failure to provide special
education services to Jamel. By this time, Jamel was 10 years
old and in the process of repeating third grade.
Not long after Williams filed suit, DCPS completed its
original assessment and developed an Individualized Education
Program (“IEP”) for Jamel. The IEP identified Jamel as both
learning disabled and speech/language impaired. DCPS
proposed that Jamel enter the Prospect-Goding Learning Center
(“Prospect”). He enrolled at Prospect in March 1999, where he
was placed in a full-time special education class and received
counseling and speech/language therapy.
Jamel’s due process hearing was finally held on October 27,
1999. On November 2, 1999, the hearing officer concluded that
DCPS demonstrated that the program at Prospect implemented
Jamel’s IEP and conformed with the requirements of IDEA.
However, she also found that DCPS’s “delay in determining
eligibility and initiating services [wa]s extensive,” and that the
“impact [of the delay on Jamel wa]s significant, particularly
[since he] entered special education at the highest intensity level
short of residential placement.” Hearing Officer’s
Determination (Oct. 27, 1999) at 6, Joint Appendix (“J.A.”) 69.
To remedy the damage caused by the District, the hearing
officer ruled that Jamel was entitled to compensatory relief.
This relief included a reading diagnostic evaluation, tutoring in
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reading, language arts, and math, and new evaluations after the
end of the 1999-2000 school year and prior to the 2001-02
school year.
Based on their success in the administrative proceeding,
appellants sought from the District attorneys’ fees and costs.
IDEA authorizes federal district courts to award such fees and
costs to a “prevailing party” in any action or proceeding brought
under the Act. 20 U.S.C. § 1415(i)(3)(B). The District
complied with appellants’ fee request, paying all of their
expenses (which were not subject to the cap) and as much of the
fees as were permitted by § 130.
Despite the apparent resolution of appellants’ complaints,
Williams believed that DCPS was not fully complying with the
hearing officer’s determination and that Jamel was making little
academic progress at Prospect. Thus, on April 4, 2001, she
requested a second due process hearing. This action was
rendered moot, however, as the parties reached a settlement on
May 8, 2001. DCPS agreed, inter alia, to pay for the
independent testing already completed, send out new placement
packets on Jamel’s behalf, and set up an expedited hearing
process should the terms of the agreement be violated. The
District again paid all expenses associated with appellants’
administrative action and as much of the attorneys’ fees as
permitted under the applicable appropriations cap.
C. District Court Proceedings
On November 27, 2002, appellants filed a motion seeking
above-cap fees allegedly owed for work done in conjunction
with the two administrative proceedings. Specifically, they
requested $12,590.36 for work done on the two administrative
actions, and $11,687.50 in fees and $90.86 in expenses for
preparing the motion filed with the District Court and for other
“recent” administrative work for Jamel. Appellants asserted that
they are entitled to recover these above-cap fees, because
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construing § 140 to apply indefinitely would be unconstitutional.
Appellants claimed, in particular, that by binding Congress in
perpetuity, § 140 would violate Congress’s future right to amend
a statute. Appellants also argued that § 140 raises separation of
powers concerns, because (1) by effectively removing from the
courts discretion to award reasonable attorneys’ fees under
IDEA, Congress would be encroaching on the judiciary’s
exclusive domain; and (2) if the court reads § 140 as indefinitely
precluding the District’s payment of fees, the result would
improperly nullify this court’s decision in Calloway, which, in
appellants’ view, held that IDEA plaintiffs would be entitled to
above-cap fees if and when the caps expired. Finally, appellants
claimed that § 140 would also violate the takings clause of the
Fifth Amendment.
The District Court found no merit in appellants’ claims.
Citing Calloway, the District Court maintained that, although
there is a “presumption . . . that appropriation statutes generally
do not amend substantive law, it is only a presumption.”
Whatley, 328 F. Supp. 2d at 19. The District Court held that
Congress overcame that presumption with the plain language
and unequivocal legislative history of § 140. Id.; see also
Armstrong, 328 F. Supp. 2d at 61 (stating that “in light of the
plain language of the prospective provision of Section 140
(2002), defendants cannot pay – and will never be required to
pay – [above-cap fees]”).
The District Court also rejected appellants’ separation of
powers arguments. The court found that Congress “‘did not use
[the fee cap] to limit the power of federal courts to award fees
under IDEA’. . . . It only limited defendants’ ability to pay
them.” Whatley, 328 F. Supp. 2d at 19 (quoting Calloway, 216
F.3d at 12) (alteration in Whatley). Addressing appellants’
claim that Congress in effect unlawfully nullified Calloway, the
District Court found that, “[w]hile the decision in Calloway does
not prohibit parties from seeking future payments of past fees,
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it by no means requires payment if the cap is lifted.” Id. at 20
(emphasis added). The District Court noted that the issue of
“whether plaintiffs have a right to obtain past fee amounts from
subsequent years’ appropriations . . . was expressly left open in
Calloway.” Id.
The District Court additionally rejected appellants’ takings
claim, holding that § 140 “permanently caps the amount of fees
counsel may collect for pre-2002 Appropriations Act efforts, but
it does not rise to the level of a taking.” Id. The trial court
found that, even when taken in conjunction with the
“temporary” nature of the annual fee caps imposed in 1999-
2001, Calloway “is not sufficient to create a property interest in
the excess fees.” Id.
Finally, the District Court held that, even if their
constitutional claims were viable, appellants were not entitled to
“any fees sought for their efforts in connection with the second
due process hearing request and the attendant settlement
agreement because they were not ‘prevailing parties’ under the
IDEA in light of the Supreme Court’s decision in Buckhannon
[Board & Care Home, Inc. v. West Virginia Department of
Health & Human Resources, 532 U.S. 598 (2001)].” Id. at 18.
The court determined that appellants could not be prevailing
parties by virtue of their settlement agreement, because they did
not “obtain a subsequent court order enforcing the settlement
agreement.” Armstrong, 328 F. Supp. 2d at 58.
Whatley and Williams now appeal the District Court’s
rejection of their claims.
II. ANALYSIS
A. The Role of § 140 in IDEA
As the District Court found, there is little doubt that, in
enacting § 140, Congress intended to amend IDEA. Appellants’
counsel conceded as much during oral argument. See Recording
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of Oral Argument at 25:45 (agreeing that if § 140 was not a part
of an appropriations act, then Congress’s “obvious intent would
be to amend the IDEA”). The question raised by appellants,
then, is whether such an amendment is permitted in an
appropriations act. We review this question de novo, see
Calloway, 216 F.3d at 5, and hold that the unequivocal answer
here is yes. The normal presumption is that appropriations acts
do not amend substantive law, “and that when they do, the
change is only intended for one fiscal year.” Martin, 961 F.2d
at 273. However, when an appropriations act contains
“language [that] clearly indicates that it is intended to be
permanent,” its reach extends beyond the fiscal year for which
it was originally enacted. See id. at 274.
The statutory language of § 140 unmistakably demonstrates
Congress’s intent to make the 1999-2001 fee caps permanent.
Unlike § 130 – the provision at issue in Calloway – § 140
mandates that the District is never to pay fees for work done or
fees requested in the relevant years:
[N]one of the funds appropriated under this Act, or in
appropriations Acts for subsequent fiscal years, may be
made available to pay attorneys’ fees accrued prior to the
effective date of this Act that exceeds a cap imposed on
attorneys’ fees by prior appropriations Acts . . . .
Section 140(a), Pub. L. No. 107-96, 115 Stat. 923, 958
(emphasis added). The language chosen by Congress could not
be more straightforward.
Appellants argue that we should reject the District’s claim
that § 140 applies indefinitely, because, before the District
Court, the District “conceded” that § 140 was only meant to
apply for FY 2002. In appellants’ view, the District Court
should have ruled in their favor, because the parties did not
disagree over the meaning of § 140. We reject this argument,
for the District Court certainly was not obliged to adopt an
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interpretation of the statute that was patently wrong. “When an
issue or claim is properly before the court, the court is not
limited to the particular legal theories advanced by the parties,
but rather retains the independent power to identify and apply
the proper construction of governing law.” Kamen v. Kemper
Fin. Servs., Inc., 500 U.S. 90, 99 (1991). In this case, the
District’s initial interpretation of § 140 was simply incorrect,
because § 140’s limit on fee awards was unquestionably
designed to extend beyond FY 2002. Indeed, the District
reversed its position on this issue in this court. See Br. for
Appellee at 15-16, 18-19 (“[T]he district court determined that
the proposed interpretation of Section 140 initially submitted by
the District was not legally sound and chose not to apply it.
That decision was appropriate . . . .”).
We find no ambiguity in § 140. In adopting this provision,
Congress intended to amend IDEA indefinitely to make it clear
that none of the funds appropriated under the 2002
Appropriations Act, or in appropriations acts for subsequent
fiscal years, may be used to pay attorneys’ fees accrued prior to
the effective date of the 2002 Appropriations Act if the fees
sought exceed the caps imposed on attorneys’ fees by prior
appropriations acts that were in effect during the fiscal year
when the work was performed, or when payment was requested
for work previously performed, in an action or proceeding
brought against DCPS under IDEA. In short, § 140 means what
it says and we are obliged to enforce its terms.
B. Constitutional Challenges to § 140
Appellants contend that the court should do everything
possible to read § 140 more narrowly in order to avoid the
allegedly unconstitutional implications of a permanent bar on
above-cap fees. They argue that an expansive reading would
unlawfully bind future Congresses and would violate separation
of powers principles. We review these claims de novo, see
Eldred v. Reno, 239 F.3d 372, 374 (D.C. Cir. 2001) (stating that
12
pure questions of law are reviewed de novo), and find them
unavailing.
First, appellants assert that § 140 “cannot be given effect
beyond the year for which it was enacted because it attempts,
impermissibly, to bar future Congresses from revisiting the issue
of paying the accumulated fees awarded under . . . Calloway.”
Br. for Appellants at 20. In other words, appellants maintain
that “a future Congress is free to repeal, modify or otherwise
invalidate a prior Congress’s legislative act.” Id. Appellants are
correct in this assertion. Their argument fails, however, because
nothing contained in the 2002 Appropriations Act prohibits
Congress from amending IDEA in the future. Indeed, the lone
case appellants cite for support, Lovett v. United States, 66 F.
Supp. 142 (Ct. Cl. 1945), illustrates this point. Similar to the
case at bar, the provision at issue in Lovett was “statutory, not a
part of the Constitution,” and therefore it “may or may not turn
out to be permanent legislation.” 66 F. Supp. at 147. Thus,
while § 140 bars payment in “subsequent fiscal years,” Congress
may, as it sees fit, change course and amend this directive.
We also find no merit in appellants’ argument that § 140
violates separation of powers principles by “impermissibly
interfer[ing] with the judiciary’s prerogative to regulate the bar
and attorney-client relationships.” Br. for Appellants at 16. The
“judiciary’s prerogative[s]” do not allow the courts to disregard
congressional enactments setting the parameters for the award
of attorneys’ fees. As we noted in Calloway, Congress
undoubtedly may “limit the power of federal courts to award
fees under IDEA.” 216 F.3d at 12. In this case, the contested
fees are plainly authorized by statute, see 20 U.S.C. §
1415(i)(3)(B), so the courts may award fees under the statute
only as directed by Congress.
Two arguments raised by appellants before the District
Court elude consideration here. First, since we find that § 140
bars the award – beyond that which plaintiffs have already
13
obtained – of fees for work done and fees sought during the
fiscal years of 1999, 2000, and 2001, we decline to reach the
issue of whether appellants were “prevailing parties” within the
meaning of IDEA as a result of the settlement reached in the
second administrative action. Appellants are not entitled to
additional fees under the statute, so therefore their prevailing
party status is currently of no moment. Second, we need not
consider whether § 140 amounts to a taking, because appellants
failed to raise the issue on appeal. See United States ex rel.
Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004)
(“Ordinarily, arguments that parties do not make on appeal are
deemed to have been waived.”).
III. CONCLUSION
The judgment of the District Court is hereby affirmed for
the reasons given above.
So ordered.