United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2011 Decided June 28, 2011
No. 09-7092
DISTRICT OF COLUMBIA,
APPELLEE
v.
CHIKE A. IJEABUONWU AND LAW OFFICES OF CHIKE A.
IJEABUONWU, LLC,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00249)
Jude C. Iweanoge argued the cause for appellants. With
him on the brief was John O. Iweanoge II.
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for District of Columbia, argued the
cause for appellee. With him on the brief were Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General.
Before: GINSBURG and GRIFFITH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring opinion filed by Senior Circuit Judge
RANDOLPH.
GINSBURG, Circuit Judge: The District of Columbia filed
this suit to recover its attorneys’ fees from Chike Ijeabuonwu,
a lawyer who brought an administrative complaint against the
District on behalf of a student with special educational needs.
Under the Individuals with Disabilities Education Act
(IDEA), a court may award attorneys’ fees to the “prevailing
party,” whether it be the plaintiff or the defendant. The
district court held D.C. was a prevailing party and awarded it
attorneys’ fees. For the reasons that follow, we reverse that
judgment.
I. Background
Ijeabuonwu’s client in the administrative matter was a
student who lived in the District of Columbia and was eligible
for special education under the IDEA, which guarantees “all
children with disabilities” access to “a free appropriate public
education.” 20 U.S.C. § 1400(d)(1)(A). After evaluating the
student in 2007, the District of Columbia Public Schools
(DCPS) determined it could best meet this statutory
requirement by paying for him to attend a certain private
school.
In July 2008, after the student’s first year there, the
school convened a so-called multidisciplinary team (MDT)
meeting, as required by the IDEA. Neither a DCPS official
nor the student’s parents were present at the meeting; the
student was represented by Ijeabuonwu’s brother, who is
employed as an “education advocate” at Ijeabuonwu’s law
firm. The MDT recommended the student’s psychological
3
therapy be increased by 30 minutes each week and that he be
given “a comprehensive psychological eval[uation],”
including psychological, educational, and social history
assessments.
On September 9, 2008 Ijeabuonwu filed an
administrative complaint — sometimes called a “due process
complaint” — on behalf of the student and his mother. The
complaint alleged the DCPS had not yet conducted the
evaluation recommended by the MDT and also had failed to
conduct an “appropriate triennial evaluation.” For relief,
Ijeabuonwu sought a “[t]imeline to evaluate” the student,
additional meetings to discuss the evaluations, “compensatory
education,” attorneys’ fees, and several specific declarations.
Nine days later Richard Nyankori, a Special Assistant to
the Chancellor of the DCPS, faxed a letter to Ijeabuonwu
authorizing “an independent comprehensive psychological
evaluation (which includes cognitive, educational, and clinical
components as well as a social history), and a psychiatric
evaluation,” to be done at the expense of the DCPS.
Ijeabuonwu neither informed his client of the letter nor
withdrew his administrative complaint, and on October 14 the
parties proceeded to an administrative hearing.
Shortly thereafter, Hearing Officer Terry Banks issued a
written order and decision stating “the only issue before [me]
is DCPS’ alleged failure to conduct psychological,
educational, and social history evaluations that were ordered
by the MDT on July 1st”; that issue, however, “was mooted
by DCPS’ prompt authorization of an independent
comprehensive psychological evaluation.” The hearing
officer nonetheless went on to devote three paragraphs of
commentary to the merits of Ijeabuonwu’s complaint,
concluding he had failed to show the DCPS was notified of
4
and had ignored the MDT’s recommendations, and that the
student “ha[d] suffered no educational harm as a consequence
of the evaluations not having been conducted.” Neither party
appealed that decision.
D.C. then filed this suit against Ijeabuonwu to recover the
attorneys’ fees it had incurred in defending itself against his
administrative complaint. The district court entered a
summary judgment, ordering Ijeabuonwu to pay such fees as
D.C. incurred once Ijeabuonwu had received Nyankori’s
letter, after which it had been unreasonable for Ijeabuonwu to
continue pursuing the case to a hearing. District of Columbia
v. Ijeabuonwu, 631 F. Supp. 2d 101, 106 (2009). Ijeabuonwu
now appeals that ruling.
II. Analysis
Although the American Rule is that parties bear their own
attorneys’ fees, the Congress has modified the rule in a
number of civil rights statutes. Pursuant to the IDEA, for one,
a court may award attorneys’ fees
to a prevailing party who [sic] is a State
educational agency or local educational agency
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). Addressing de novo the
issue of law whether D.C. is a “prevailing party” in this case,
we hold it is not. Because we reverse the judgment of the
district court on that ground, we need not decide whether, as
D.C. maintains, Ijeabuonwu’s pursuit of an administrative
hearing was unreasonable.
5
As both parties recognize, this case follows closely in the
wake of our decision last term in District of Columbia v.
Straus, 590 F.3d 898 (2010). The defendant Straus had filed
an administrative complaint under the IDEA on behalf of a
student seeking (1) an order requiring D.C. to pay for the
independent psychiatric evaluation recommended by the
student’s assessment team, (2) a declaration that the delay in
obtaining the evaluation had denied the student a free
appropriate public education, and (3) attorneys’ fees. Id. at
899–900. Within a week thereafter, Richard Nyankori of the
DCPS sent Straus a letter substantively identical to the one he
would later send to Ijeabuonwu. Id. at 900. Straus
nonetheless pursued the matter to an administrative hearing at
which, as here, Hearing Officer Banks presided. In a written
decision, the hearing officer stated the “only issue” before
him was the “alleged failure to conduct a psychiatric
evaluation” as recommended by the MDT, which he
concluded had been “mooted by DCPS’ prompt authorization
of an independent evaluation.” Id. at 901. As in the precursor
to the present case, neither party appealed, id. at 900, but D.C.
filed suit in the district court seeking reimbursement of its
attorneys’ fees pursuant to § 1415(i)(3)(B)(i), id. That court
held D.C. was not a “prevailing party” in the administrative
proceeding because its own change of position was what had
mooted the dispute, causing the case to dismissed, and we
agreed. Id. at 900, 903.
We began our analysis in Straus with the Supreme
Court’s teaching in Buckhannon Board & Care Home, Inc. v.
West Virginia Department of Health & Human Resources,
532 U.S. 598, 603–05 (2001), that to be a prevailing party
“requires more than achieving the desired outcome.” Straus,
590 F.3d at 901. Following Buckhannon, in Thomas v.
National Science Foundation, 330 F.3d 486, 492–93 (2003),
6
we had identified three requirements for prevailing party
status: There must be (1) “a court-ordered change in the legal
relationship of the parties”; (2) a “judgment ... in favor of the
party seeking the fees”; and (3) “judicial relief”
accompanying the “judicial pronouncement.” Straus, 590
F.3d at 901 (citing Thomas, 330 F.3d at 492–93) (internal
quotation marks omitted). Only the latter two of these
requirements apply when the party seeking fees is a
defendant. Id. at 901.
In Straus, as here, the only contested issue was whether
D.C. had obtained any “judicial relief” in the administrative
proceeding as to which it was seeking to recover attorneys’
fees. We answered in the negative because the hearing officer
had dismissed the case based not upon its merits but rather
upon the mootness the District itself had brought about. Id. at
901–02.
We decided Straus after the district court had issued its
opinion in this case but before that court denied Ijeabuonwu’s
motion for reconsideration. In denying reconsideration, the
district court said Straus “does not change the outcome”
because in this case “the hearing officer did reach the merits
of the student’s complaint and resolved the issue in favor of
the District.”
On appeal Ijeabuonwu, of course, argues Straus is
controlling. The hearing officer here, he points out, stated
both that D.C.’s failure to conduct an evaluation was the
“only issue” and that the Nyankori letter had rendered that
issue moot; therefore, as in Straus, it is of no moment that the
hearing officer also volunteered his opinion that the student
had “suffered no educational harm.”
7
D.C. attempts to navigate around Straus by emphasizing
our observation there that the hearing officer’s obiter dicta
concerning the merits had begun with a counterfactual
subjunctive statement (“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”), making clear that the hearing officer’s
later statement the student had “suffered no educational harm”
was only his “speculation about what might have happened
had DCPS refused to provide the evaluation.” Id. at 901.
Because the hearing officer here, the District continues, did
not couch his comments upon the merits in the counterfactual
subjunctive, he was squarely resolving the issue.
The District errs in implying our decision in Straus
turned upon the tense in which the hearing officer couched his
dicta. The underlying point was that in Straus, as in this case,
the hearing officer recognized the want of an evaluation was
the sole issue the student’s attorney had raised before him and
then determined the Nyankori letter had already resolved that
issue. The counterfactual subjunctive in Straus reflected and
reinforced that point but was not essential to it. What matters
is the hearing officer’s determination in each case that there
was before him no live issue on the merits.
D.C. next argues the Nyankori letter did not moot the
entire case because Ijeabuonwu’s complaint sought not only
an evaluation but also “compensatory education,” which we
have described as the belated provision of “educational
services the child should have received in the first place,”
Reid v. District of Columbia, 401 F.3d 516, 518 (2005). As
the District notes, in Lesesne v. District of Columbia, 447
F.3d 828, 833 (2006), we said an “explicit demand for
compensatory education” is sufficient to forestall mootness,
and so it is. In Lesesne, however, we reviewed a judgment of
8
the district court holding a plaintiff’s IDEA claim was moot,
id. at 833, whereas here the administrative order that adjudged
the case moot is not before us; that order was not challenged
administratively or otherwise appealed. Accordingly, just as
D.C. itself argues concerning a different point, the law of the
case doctrine precludes us from revisiting the hearing
officer’s conclusion the entire dispute is moot. See United
States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009) (“a
legal decision made at one stage of litigation, unchallenged in
a subsequent appeal when the opportunity to do so existed,
governs future stages of the same litigation” (internal
quotation marks and alterations omitted)); Kaseman v.
District of Columbia, 444 F.3d 637, 641–42 (D.C. Cir. 2006)
(administrative IDEA proceeding and later fee claim are part
of same case).
Finally, D.C. argues the res judicata effect of the hearing
officer’s having dismissed the administrative complaint with
prejudice “is itself a form of ‘judicial relief’” and therefore
sufficient to make D.C. a “prevailing party.” In response to a
similar argument in Straus, we noted that in some cases the
“[r]es judicata effect would certainly qualify as judicial
relief,” for example, where “it protected the prevailing school
district from having to pay damages or alter its conduct.” 590
F.3d at 902. In that case, however, res judicata provided no
such protection because the District “had already agreed to
pay for the requested evaluation—the only issue then before
the hearing officer.” Id.
D.C. would have us distinguish Straus upon the basis of
the last-quoted clause: In this case, it says, res judicata gives
the District meaningful relief because the student’s claim for
compensatory education is now precluded on the ground that
it arose from the same nucleus of facts as did the claims the
hearing officer held were moot. See Apotex, Inc. v. FDA, 393
9
F.3d 210, 217 (D.C. Cir. 2004) (“a judgment on the merits in
a prior suit bars a second suit involving identical parties or
their privies based on the same cause of action,” which “turns
on whether [the two suits] share the same nucleus of facts”
(internal quotation marks omitted)). What D.C. overlooks is
that the evaluation for which it agreed to pay is but a
preliminary step; if the evaluation shows a need for
compensatory education, then D.C. will still have to provide
it. The dismissal therefore “protected the District from
nothing at all.” Straus, 590 F.3d at 902; see also Drake v.
FAA, 291 F.3d 59, 67 (D.C. Cir. 2002) (res judicata “does not
bar a litigant from doing in the present what he had no
opportunity to do in the past”). ∗
In consequence, we see no principled reason to depart
from our holding in Straus. As we said then:
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 [attorneys’] fees
from the parents’ lawyers.
∗
D.C. similarly contends the res judicata effect of the hearing
officer’s decision forecloses the student from renewing his claim
related to the DCPS’s “failure to conduct an ‘appropriate’ triennial
evaluation.” As D.C. acknowledges elsewhere in its brief,
however, any such claim would be moot because Nyankori’s letter
authorized the student to obtain a psychiatric evaluation, which was
part of the triennial evaluation but not of the evaluation called for
by the MDT. If a claim for triennial evaluation would be dismissed
as moot in any event, then res judicata is of no benefit to D.C.
10
Straus, 590 F.3d at 902. To allow this practice would deter
lawyers from taking IDEA cases and thereby deprive parents
of their most effective means of enforcing the statute.
III. Conclusion
We hold the District of Columbia is not a “prevailing
party” under the IDEA and, accordingly, is not eligible for an
award of attorneys’ fees. The judgment of the district court is
therefore
Reversed.
RANDOLPH, Senior Circuit Judge, concurring: Although I
have my doubts about the result in District of Columbia v.
Straus, 590 F.3d 898 (D.C. Cir. 2010), I agree that the decision
requires us to reverse. But I do not agree with the majority’s
implicit criticism of the District for even seeking attorneys’ fees.
Maj. Op. at 9-10.
The District invoked the portion of the statute allowing an
educational agency to collect attorneys’ fees from a parent’s
attorney if the agency is a “prevailing party” and if the attorney
“continued to litigate after the litigation clearly became frivo-
lous, unreasonable, or without foundation.” 20 U.S.C.
§ 1415(i)(3)(B)(i)(II). The District had ample grounds for its
claim: the attorney, Chike Ijeabuonwu, did not tell his clients
that the District had agreed to his demands, he persisted in his
administrative complaint after the case thus became moot, and
he admitted that he was prolonging the litigation in order to
collect fees for himself. That is the sort of conduct that deserves
a sanction, and requiring Ijeabuonwu to pay attorneys’ fees
would have accomplished that end.
The portion of Straus the majority quotes at the end of its
opinion seems to me incorrect. Straus seemed to assume the
District could collect attorneys’ fees if it “ignore[d] its legal
obligations until parents sue[d], voluntarily compl[ied] quickly,
[and] file[d] for and receive[d] a dismissal with prejudice for
mootness . . ..” Maj. Op. at 9-10 (quoting Straus, 590 F.3d at
902). The majority states, as did Straus, that this would deter
lawyers from taking IDEA cases. But it would not. It would
deter only attorneys who sought to prolong the case after
litigation became “frivolous, unreasonable, or without founda-
tion”—and that is all to the good.