United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2009 Decided January 8, 2010
No. 09-7051
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
APPELLANT
v.
JOHN A. STRAUS AND JAMES E. BROWN & ASSOCIATES, PLLC,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-02075-RWR)
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellant. With him on the briefs were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General.
Roxanne D. Neloms argued the cause for appellees. With
her on the brief was Tilman L. Gerald.
Arthur B. Spitzer, Caroline M. Brown, and Roger A. Ford
were on the brief for amicus curiae the American Civil
Liberties Union of the National Capital Area in support of
appellees.
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Before: GINSBURG, TATEL, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Relying on the fee-shifting
provision contained in the Individuals with Disabilities
Education Act (IDEA), the District of Columbia seeks fees
from a lawyer who, on behalf of a special needs student,
initiated administrative proceedings that were eventually
dismissed as moot. The district court denied an award of fees
on the ground that the District failed to qualify as a
“prevailing party” under the IDEA as defined by the Supreme
Court in Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532 U.S.
598 (2001). For the reasons set forth below, we affirm.
I
The IDEA guarantees all children with disabilities a free,
appropriate public education (FAPE). 20 U.S.C. §
1400(d)(1)(A). Of relevance to this case, the IDEA requires
school districts to conduct any evaluations necessary to
develop a child’s individualized education plan (IEP). Id.
§ 1414(a).
In June 2008, the IEP team for D.R., a special needs
student attending the District of Columbia Public Schools
(DCPS), decided it needed a psychiatric evaluation of D.R. to
prepare his IEP for the upcoming school year. DCPS agreed
to complete the evaluation by August 5. When it failed to do
so, D.R.’s family, represented by appellee John Straus, filed
an administrative complaint seeking an order requiring DCPS
to pay for an independent psychiatric evaluation. See 20
U.S.C. § 1415(b)(6)(A) (authorizing parents to file
administrative challenges to “any matter relating to . . .
evaluations”). The parents also sought (1) a declaration that
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the delay in conducting the evaluation denied D.R. a FAPE
and (2) an award of attorney’s fees, see Moore v. District of
Columbia, 907 F.2d 165, 167 (D.C. Cir. 1990) (en banc)
(interpreting the IDEA’s fee-shifting provision to apply in
administrative proceedings as well as civil actions). Five days
later, Dr. Richard Nyankori of the DCPS Chancellor’s office
sent Straus a letter authorizing the independent evaluation.
That same day, the hearing officer held a prehearing
conference. Although Straus knew of the Nyankori letter
authorizing the evaluation, he refused to withdraw the
complaint. Instead, he demanded a hearing, which the
hearing officer held several weeks later. At that hearing,
Straus conceded that the Nyankori letter provided the
substantive relief his client sought, but argued “there should
be something with respect to attorney’s fees” for himself.
Plaintiff’s Renewed Motion for Summary Judgment, Exhibit
D at 11, District of Columbia v. Straus, 607 F. Supp. 2d 180
(D.D.C. 2009) (No. 08-cv-2075).
Three days after the hearing, the officer ruled that the
Nyankori letter “mooted” the controversy and dismissed the
case with prejudice. Plaintiff’s Renewed Motion for
Summary Judgment, Exhibit C at 3, Straus, 607 F. Supp. 2d
180 (“SHO decision”). Neither party challenged that
decision.
Although Straus is no longer pursuing his request for
fees, the District sued him and his law firm in the United
States District Court for the District of Columbia seeking an
award of $1,752.25 to cover the attorney’s fees it claims to
have expended in the administrative hearing. The District
argued that it was entitled to fees under the IDEA’s fee-
shifting provision because it had prevailed in the
administrative proceedings and because Straus “continued to
litigate the complaint after it had clearly become groundless.”
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Appellant’s Br. 3; see also 20 U.S.C. § 1415(i)(3)(B)(i)(II)
(authorizing the award of attorney’s fees when the school
district is the prevailing party and the parents’ attorney
litigated frivolously). The district court disagreed, concluding
that the District does not qualify as a prevailing party because
it “secure[d] a dismissal for mootness . . . by [its] voluntary
conduct.” Straus, 607 F. Supp. 2d at 184. The court therefore
entered summary judgment for Straus. The District appeals,
and our review is de novo, see District of Columbia v.
Jeppsen, 514 F.3d 1287, 1289–90 (D.C. Cir. 2008) (reviewing
a summary judgment determination de novo).
II
In the American legal system, litigants generally bear
their own litigation costs. Congress, however, has enacted a
number of fee-shifting statutes that alter this rule, including
most notably the Civil Rights Attorney’s Fees Awards Act of
1976, 42 U.S.C. § 1988. Buckhannon, 532 U.S. at 602–03
(listing fee-shifting statutes). Such statutes authorize courts to
award fees to the “prevailing party.” See id. at 603. Like
these statutes, the IDEA allows parents who are “prevailing
part[ies]” to recover attorney’s fees incurred in both
administrative and judicial proceedings. 20 U.S.C. §
1415(i)(3)(B)(i)(I); see also Moore, 907 F.2d at 167. Central
to the issue before us, the IDEA also allows school districts to
recover fees if they prevail in litigation brought by parents.
Specifically, subsection II of section 1415(i)(3)(B)(i)
authorizes awards of attorneys’ fees
to a prevailing party who is a State educational
agency or local educational agency against the
attorney of a parent who files a complaint or
subsequent cause of action that is frivolous,
unreasonable, or without foundation, or against
the attorney of a parent who continued to
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litigate after the litigation clearly became
frivolous, unreasonable, or without
foundation[.]
Id. § 1415(i)(3)(B)(i)(II).
As the Supreme Court explained in Buckhannon, “the
term ‘prevailing party’ [is] a legal term of art” that requires
more than achieving the desired outcome; the party seeking
fees must also have “been awarded some relief by the court.”
532 U.S. at 603. In Buckhannon, the Court rejected the so-
called catalyst theory under which some courts had awarded
fees to plaintiffs’ lawyers who secured favorable out-of-court
settlements. According to the Court, such voluntary actions
by defendants “lack[] the necessary judicial imprimatur.” Id.
at 605. Following Buckhannon, we articulated a three-part
test for determining prevailing-party status: (1) there must be
a “court-ordered change in the legal relationship” of the
parties; (2) the judgment must be in favor of the party seeking
the fees; and (3) the judicial pronouncement must be
accompanied by judicial relief. Thomas v. Nat’l Sci. Found.,
330 F.3d 486, 492–93 (D.C. Cir. 2003) (internal quotation
marks and alterations omitted). Although we developed this
test in connection with requests for fees by plaintiffs, we have
applied its latter two requirements to requests by defendants
as well. Jeppsen, 514 F.3d at 1290 (finding that a dismissal
on the merits qualifies the defendant as a prevailing party).
In this case, the second factor is easily satisfied. The
hearing officer’s dismissal of the case was in “favor” of the
District, Thomas, 330 F.3d at 493 (internal quotation marks
omitted), and Straus nowhere argues otherwise. Focusing on
the third factor, the District argues that the hearing officer’s
“pronouncement [was] []accompanied by judicial relief,” id.,
because he “rejected the administrative complaint on its
merits,” Appellant’s Br. 21. In support, the District points out
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that in addition to seeking an evaluation, the complaint asked
for a declaration that D.R. was denied a FAPE. “By pursuing
the litigation,” the District argues, “Straus demanded a
decision on the merits.” Id. at 22. As the District also notes,
the hearing officer found that D.R. “suffered no educational
harm.” SHO decision at 4.
Given the hearing officer’s conclusion that the Nyankori
letter mooted the case, however, the language the District
relies on is dicta. As the hearing officer himself made quite
clear, the “only issue before [him] is DCPS’ alleged failure to
conduct a psychiatric evaluation,” which he concluded “was
mooted by DCPS’ prompt authorization of an independent
evaluation.” SHO decision at 3 (emphasis added). Moreover,
the portion of the hearing officer’s decision the District relies
on begins with a counterfactual subjunctive: “The facts of this
case suggest that even if DCPS had not authorized an
independent evaluation, Petitioner would have faced an uphill
burden of proving” educational harm. Id. (emphasis added).
To be sure, the hearing officer goes on to state that D.R.
“suffered no educational harm.” Id. at 4. Read in context,
however, that sentence represents not a decision on the merits,
but instead the hearing officer’s speculation about what might
have happened had DCPS refused to provide the evaluation.
District of Columbia v. Jeppsen, 514 F.3d 1287 (D.C.
Cir. 2008), does not help the District. That case involved
three separate claims, one of which the district court decided
on the merits in favor of the parents. Given that, we held that
the parents qualified as prevailing parties even though one of
the other claims was dismissed as moot. Jeppsen, 514 F.3d at
1291. Here, by contrast, the hearing officer resolved nothing
on the merits. Although the complaint asked for declaratory
relief as well as for the psychiatric evaluation, the hearing
officer found that the evaluation was the “only issue” in the
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case and, once DCPS provided it, dismissed the case as moot.
SHO decision at 3.
The District argues that it nonetheless qualifies as a
prevailing party because “‘a dismissal with prejudice is
deemed an adjudication on the merits for the purposes of res
judicata.’” Appellant’s Br. 18 (quoting Anthony v. Marion
County General Hosp., 617 F.2d 1164, 1170 (5th Cir. 1980)).
Res judicata effect would certainly qualify as judicial relief
where, for example, it protected the prevailing school district
from having to pay damages or alter its conduct. See, e.g.,
Claiborne v. Wisdom, 414 F.3d 715, 719 (7th Cir. 2005)
(awarding attorney’s fees to the defendant where the plaintiff
voluntarily moved to dismiss the case because she lacked
sufficient evidence after her witnesses recanted); see also
Jeppsen, 514 F.3d at 1290 (hypothesizing that, in certain
circumstances, “[a] ruling on a jurisdictional ground, that the
action fails either in law or in fact, might give the defendant
all it could receive from a judgment on the merits.”). But in
this case, the hearing officer’s dismissal protected the District
from nothing at all because DCPS had already agreed to pay
for the requested evaluation—the only issue then before the
hearing officer. In other words, the District’s favorable
judicial pronouncement was “unaccompanied by judicial
relief.” Thomas, 330 F.3d at 493 (internal quotation marks
omitted). If the District were considered a prevailing party
under these circumstances, then DCPS could ignore its legal
obligations until parents sue, voluntarily comply quickly, file
for and receive a dismissal with prejudice for mootness, and
then recover attorney’s fees from the parents’ lawyers. As
amicus explains, such an outcome would deter lawyers from
taking IDEA cases, “effectively block[ing] the one
enforcement mechanism parents have when an educational
agency drags its heels,” and undermining the IDEA’s very
purpose. Br. of Amicus Curie ACLU 28; see Moore, 907
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F.2d at 166 (finding that the availability of administrative
proceedings and the “‘right to be accompanied and advised by
counsel’” therein help “guarantee that the policy [of the IDEA
to provide FAPEs to children] is faithfully administered”
(quoting 20 U.S.C. § 1415(h)).
The District insists that even if not every involuntary
dismissal with prejudice conveys judicial relief, the one in this
case did because Straus “pressed forward” and was “halted
only by the hearing officer’s decision.” Appellant’s Br. 27,
26. But this argument ignores the language of the IDEA’s
fee-shifting provision. Subsection II allows a school district
that is a “prevailing party” to recover fees “against the
attorney of a parent who continued to litigate after the
litigation clearly became frivolous, unreasonable, or without
foundation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II). Under the
statute, then, the behavior of the parents’ lawyer becomes
relevant only if the school district first qualifies as a
prevailing party. Here, because the District does not qualify
as a prevailing party, it may not recover fees even if Straus
continued to litigate inappropriately. See id.
The District makes one final argument. Even if it is
unable to qualify as a prevailing party under subsection II, it
claims that it may receive fees under a different section of the
IDEA’s fee-shifting provision, namely subsection III, which
authorizes awards
to a prevailing State educational agency or
local educational agency against the attorney
of a parent, or against the parent, if the parent’s
complaint or subsequent cause of action was
presented for any improper purpose, such as to
harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation.
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20 U.S.C. § 1415(i)(3)(B)(i)(III). According to the District,
subsection III’s use of the term “prevailing” in lieu of
subsection II’s “prevailing party” signals that Buckhannon’s
definition of “prevailing party” does not apply to subsection
III. In support, the District points out that although subsection
II is based on section 1988, the general civil rights attorney’s
fees statute, subsection III mirrors Federal Rule of Civil
Procedure 11, which authorizes courts to sanction attorneys
who submit pleadings or other filings “for any improper
purpose.” Freed from the constraints of Buckhannon, the
argument goes, “prevailing” in subsection III simply means
the winning side—in this case, the District.
According to Straus, however, the District forfeited this
argument by failing to raise it in the district court. See Adams
v. Rice, 531 F.3d 936, 945 (D.C. Cir. 2008) (holding that a
party forfeits for appeal arguments not raised before the
district court). We agree. The District’s complaint sought
relief only under subsection II, and although the District did
argue in its motions for summary judgment that Straus acted
with an “improper purpose” as required by subsection III, it
never claimed, as it does here, that the word prevailing in
subsection III means something different from prevailing
party as defined by Buckhannon.
The District claims that Straus “forfeited any contention
that the District’s argument is forfeited” because his brief
never “explicitly suggest[s]” that the District’s argument was
“improper[].” Reply Br. 12. But in the case the District cites
in support, Fox v. District of Columbia, 83 F.3d 1491, 1495–
96 (D.C. Cir. 1996), the party in Straus’s position made no
mention at all of the forfeited argument. By contrast, Straus’s
brief points out the obvious—that the District “failed to plead
this argument in its original complaint or any of its papers
10
filed in the District Court”—and then states that he “will
nonetheless address it in the first instance.” Appellees’ Br.
26. Read most naturally, these statements indicate that Straus
believed that although he was under no obligation to respond
to the District’s new argument because the District had
forfeited the point, he would “nonetheless” address it. True,
Straus never said in so many words that the District forfeited
the argument, but the District identifies no case, nor are we
aware of one, requiring a party to invoke the magic word
“forfeit.” The District failed to make its argument in the
district court, and Straus raised the point. Our cases require
nothing more.
III
The judgment of the district court is affirmed.
So ordered.