In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3928
T.D.,
Plaintiff-Appellee,
v.
LAGRANGE SCHOOL DISTRICT NO. 102,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2071—James B. Zagel, Judge.
____________
ARGUED MAY 20, 2003—DECIDED NOVEMBER 14, 2003
____________
Before COFFEY, KANNE, and DIANE P. WOOD, Circuit
Judges.
KANNE, Circuit Judge. Congress enacted the Individuals
With Disabilities Education Act (“IDEA”) with the primary
purpose of ensuring that a “free appropriate public educa-
tion” is available to all children with disabilities. 20 U.S.C.
§ 1400(d)(1)(A) (2003). To facilitate this goal, the IDEA
requires schools to have in place procedures that allow
parents to make complaints regarding “any matter relating
to the identification, evaluation, or educational placement
of the child, or the provision of a free appropriate public
education” to their child. Id. § 1415(b)(6). If the parents’
concerns cannot be satisfactorily resolved through in-
formal channels, the IDEA provides parents a right to me-
2 No. 02-3928
diation or an impartial due process hearing conducted by
the appropriate state educational agency. Id. § 1415(e)(1),
(f)(1). If parents are still unsatisfied following a due process
hearing, they may then bring a civil action in federal or
state court. Id. § 1415(i)(2)(A). To ease the financial burden
on parents making claims, the IDEA contains a fee-shifting
provision that allows attorney’s fees to the parents of a
child with a disability who are the “prevailing party” in any
action or proceeding brought under the IDEA. Id. §
1415(i)(3)(B).
In this appeal we address whether the plaintiff, T.D., is
a prevailing party under this fee-shifting provision and
whether T.D. is thereby eligible for attorney’s fees.1 The
district court, finding that the Supreme Court’s recent de-
cision in Buckhannon Bd. & Care Home v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598 (2001), did not apply to
the IDEA, held that T.D. was entitled to attorney’s fees. We
hold that Buckhannon does apply to the IDEA, but find that
T.D. is still entitled to a portion of his attorney’s fees. We
also find that the district court erred in finding that T.D.
was entitled to receive reimbursement under the IDEA for
his expert witness fees.
I. History
A. Background
T.D., born June 24, 1991, is a strong-willed child, who
was diagnosed with Attention Deficit Hyperactivity Dis-
order at an early age. His parents enrolled him in private
pre-schools and elementary schools through the early part
of 1997. On February 4, 1997, during T.D.’s kindergarten
1
For simplicity we refer to T.D.’s eligibility for attorney’s fees,
recognizing that any award of fees would be made to his parents.
See 20 U.S.C. § 1415(i)(3)(B) (2003).
No. 02-3928 3
year, he was dismissed from a parochial school after the
school determined that it did not have the special-education
resources needed to properly educate him. The parochial
school offered to refer T.D. to the local public school for
services, but at that time his parents refused to allow the
parochial school to make the referral.
A week after T.D. was dismissed from the parochial
school, his parents took him to the University of Chicago’s
Hyperactivity, Attention, and Learning Problems Clinic for
an independent evaluation. That evaluation recommended,
inter alia, that T.D. attend a school with a low teacher:
student ratio and noted that the best setting for T.D. would
likely be a private, therapeutic day school.
In March and April of 1997, T.D.’s mother spoke at
various times with the public school district’s Director of
Special Ed, Mary Ann Cusick. During these conversations,
T.D’s. mother sought information about the school district’s
special-education programs and apparently expressed some
reluctance to enroll T.D. in the school district, based on
T.D.’s older brother’s experience there. At some point
during this period, T.D.’s mother visited the local public
school that T.D. would attend. During this visit, she met
with the principal and the kindergarten teacher, and the
school provided her with further information about the
special-education services that would be available to T.D.
within the context of the regular classroom setting. At no
point during March or April of 1997, did the school district
request written consent to conduct a case-study evaluation
of T.D. to determine his potential eligibility for various
special-education programs.
In September 1997, T.D.’s parents enrolled him in the
first grade at Acacia Academy, a private therapeutic day
school. Acacia, however, would only allow T.D. to attend
full-time if his parents hired a one-on-one aide to accom-
4 No. 02-3928
pany him. After a short period of attending only part-time,
T.D.’s parents hired an aide and thereafter T.D. attended
full-time.
B. Due Process Administrative Proceedings
On August 25, 1997, approximately five months after
T.D.’s mother first contacted the public school district offi-
cials, T.D.’s parents requested, through their attorney, a
due process hearing before a state administrative hearing
officer as provided for by § 1415(f) of the IDEA. In their
hearing request, T.D.’s parents alleged that the school dis-
trict had (i) “fail[ed] to evaluate T.D. despite actual notice
that he may require special-education services;” (ii) “fail[ed]
to notify” them that the school district “had decided not to
conduct a case study evaluation;” (iii) “fail[ed] to consider
their independent evaluation;” and (iv) “fail[ed] to appropri-
ately advise them of the placement options for T.D. within
the public school setting” other than “full inclusion place-
ments, in a regular classroom setting.” T.D.’s parents
claimed that as a result of these failures the school district
had denied T.D. the “free, appropriate public education”
guaranteed by the IDEA.
Part of the relief requested by T.D.’s parents was that the
school conduct an evaluation to determine T.D.’s eligibility
under the IDEA for special-education services. On October
15, 1997, the hearing officer conducted a pre-hearing
conference on this issue, after which the hearing officer
determined that a case-study evaluation was necessary and
ordered the school to conduct the evaluation. Following this
order, on November 20, 1997, the school conducted the
evaluation and convened an Individualized Education
Program (“IEP”) conference, as required by the IDEA
§ 1414. As a result of the evaluation and conference, T.D.
was determined to have an “Emotional/Behavioral Disor-
der” and a “Speech and/or Language Impairment,” and was
No. 02-3928 5
found eligible for special-education services from the school
district. The school district recommended that T.D. be
placed at the local public school in a regular-education
classroom, with supplemental special-education services to
address T.D.’s special needs. T.D.’s parents rejected the
recommended placement.
The administrative due process hearing commenced on
December 5, 1997. The parents sought: (i) reimbursement
for their placement of T.D. at Acacia for the 1997-1998
academic year; (ii) reimbursement for the one-on-one aide
to assist T.D. at the private school; (iii) reimbursement for
T.D.’s transportation to and from Acacia; and (iv) reim-
bursement for the independent evaluation they had ob-
tained from the University of Chicago.
In a ruling rendered on December 10, 1997, the hearing
officer made findings that as of the last week of March
1997, the school district knew that T.D. might require
special-education services and should have requested the
parent’s written consent to conduct a case-study evaluation
of T.D. at that time. Further, pursuant to the case study,
the school should have identified the student’s needs and
formulated program and service options. It was not until
the hearing officer ordered the evaluation that these things
were accomplished. The hearing officer found that the
school district’s failings contributed to the parents need to
place T.D. in the private school and to obtain a one-on-one
aide. Therefore, the hearing officer ordered the school
district to reimburse T.D.’s parents for their out-of-pocket
costs for the one-on-one aide, a cost of about $1130 per
month and for the costs of transportation to the school, a
cost of about $5 per ride, from September 17 until the
school district could provide the appropriate services. As to
T.D.’s educational placement, however, the hearing officer
found that the private school in which T.D. was enrolled
could not adequately meet his needs. Therefore, he denied
reimbursement for the private school tuition, and he
6 No. 02-3928
ordered that T.D. be transferred to a regular mainstream
classroom at the local public school with supplemental
special-education services.
C. District Court Proceedings and Settlement
T.D. appealed to federal district court, seeking reversal of
the proposed placement in a regular classroom, asking
instead for continued placement at the private day school.
Further, he sought reimbursement of the tuition already
paid by his parents for the day school. He also asked for the
relief already granted by the hearing officer, namely the
reimbursement of the one-on-one aide cost and transporta-
tion costs. Finally, he sought attorney’s fees and costs.
Both parties moved for summary judgment, but before the
district court ruled, the parties settled. The settlement
agreement provided that T.D. would be placed in a self-
contained behavior disordered program (as opposed to a
regular classroom) in a public school. The school district
agreed to reimburse T.D.’s parents for tuition and all costs
in any way resulting from or relating to T.D.’s attendance
at the private day school, a total of $52,000. The parties did
not reach an agreement regarding attorney’s fees, specifi-
cally leaving the issue for decision by the district court.
The district court rendered its decision on attorney’s fees
on October 7, 2002, holding that T.D. was a “prevailing
party” and therefore was entitled to attorney’s fees under
the IDEA’s fee-shifting provision. In finding that T.D. was
a prevailing party, the district court noted that he had
succeeded on a significant issue when he obtained the case-
study evaluation, which determined that he was eligible for
special-education services. The court went on to state:
[I]rrespective of how much Parents prevailed in the
hearing or in my Court, I find that Parents obtained
No. 02-3928 7
through settlement the balance of what they desired
and TD needed. TD’s placement in a self-contained be-
havior disordered classroom in a public school is the
direct result of Parent’s litigation on the issue of TD’s
placement and the settlement represents a significant
departure from La Grange’s proposal to educate TD in
a regular mainstream classroom with a one-on-one aide.
Importantly, the district court held that the Supreme
Court’s recent decision in Buckhannon did not apply to the
IDEA. The district court expressly stated that it was not
deciding whether attorney’s fees would be appropriate un-
der the strictures of Buckhannon.
The district court awarded T.D. $117,135.53 in attorney’s
fees and costs. The school district now appeals that deci-
sion.
II. Analysis
A. Buckhannon and the IDEA
The IDEA, like many other federal statutes, provides that
courts may award attorney’s fees to a “prevailing party”:
In 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) (2003). In Buckhannon, the
Supreme Court limited the meaning of the term “prevailing
party,” by rejecting the catalyst theory as a method of
attaining prevailing-party status under the Americans With
Disabilities Act (“ADA”) and Fair Housing Amendments Act
(“FHAA”). 532 U.S. at 605. Under the catalyst theory, which
had been accepted by many courts before Buckhannon, a
plaintiff could prevail, if the plaintiff’s suit was a catalyst
8 No. 02-3928
that prompted the change that the plaintiff sought.
Buckhannon, however, held that a party could not be a
prevailing party without receiving some sort of “judicial
imprimatur” on the charge. Id. at 605. Central to the
Court’s conclusion was its finding that the term “prevailing
party” was “a legal term of art,” which signified that the
party that had been granted relief by a court. Id. at 603. As
examples of the type of relief necessary to attain “prevailing
party” status, the court cited a judgment on the merits and
a consent decree. Id. at 604.
The school district argues that since this case was ulti-
mately resolved through a private settlement, without a
judicial imprimatur, T.D. does not qualify as a “prevailing
party” under the Supreme Court’s explanation of that term
in Buckhannon. T.D. counters that Buckhannon’s rules are
inapplicable to the IDEA. Therefore, the threshold issue in
this case is whether Buckhannon’s limitations on the
meaning of the term “prevailing party” apply.
Although Buckhannon involved only claims under the
“prevailing party” fee-shifting provisions of the ADA and
FHAA,2 there is little doubt that the Buckhannon Court
intended its interpretation of the term “prevailing party” to
have broad effect upon similar fee-shifting statutes. The
Court observed that Congress has passed many statutes
that authorize courts to award attorney’s fees to the
“prevailing party,” such as 42 U.S.C. § 1988, and that the
Court has interpreted those fee-shifting provisions consis-
tently across the federal statutes. Buckhannon, 532 U.S. at
2
In relevant part the ADA provides: “The court . . ., in its dis-
cretion, may allow the prevailing party . . . a reasonable attorney’s
fee.” 42 U.S.C. § 12205 (2003). And the FHAA provides: “The
court, in its discretion, may allow the prevailing party . . . a rea-
sonable attorney’s fee and costs.” 42 U.S.C. § 3613(c)(2) (2003).
No. 02-3928 9
602-03 & n.4 (citing Hensley v. Eckerhart, 461 U.S. 424,
433, n.7 (1983), which held that the standards used in
interpreting the term “prevailing party” are “generally
applicable in all cases in which Congress has authorized an
award of fees to a ‘prevailing party.’ ”). Moreover, as noted
above, the Court described the term “prevailing party” as a
“legal term of art,” with the relatively fixed and accepted
meaning of “a party in whose favor a judgment is rendered.”
Id. at 603 (citing BLACK’S LEGAL DICTIONARY 1145 (7th ed.
1999)). Therefore, one would conclude that if a statute con-
tains this legal term of art that has been interpreted con-
sistently across statutes, we should exercise great caution
before we give that term a different meaning. See Me. Sch.
Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 14 (1st
Cir. 2003) (“Because [the IDEA] employs the phrase ‘pre-
vailing party’—a term of art—it must be interpreted and
applied in the same manner as other federal fee-shifting
statutes that use the same phraseology.”).
Given these considerations, at least one circuit has in-
terpreted Buckhannon as applying to all “prevailing party”
fee-shifting statutes. See Smyth v. Rivero, 282 F.3d 268, 274
(4th Cir. 2002) (holding that Buckhannon applies to 42
U.S.C. § 1988 and stating “[t]he term ‘prevailing party,’ as
used in § 1988(b) and other fee-shifting provisions, is a
‘legal term of art,’ and is interpreted consistently—that is,
without distinctions based on the particular statutory con-
text in which it appears.”) (quotations and citations omit-
ted). While there is some appeal to the simplicity of this
position, this Court has not yet gone that far. Rather, we
have left open the possibility that if the “text, structure, or
legislative history” of a particular fee-shifting statute
indicate that the term “prevailing party” in that statute is
not meant to have its usual meaning—as defined in
Buckhannon—then Buckhannon’s strictures may not apply.
10 No. 02-3928
We reiterate, however, that because “prevailing party” is
a legal term of art that is interpreted consistently across
fee-shifting statutes, there is a strong presumption that
Buckhannon applies to each fee-shifting statute that
awards fees to “prevailing parties.” Consequently, for this
Court to find that Buckhannon does not apply to the IDEA,
a “prevailing party” fee-shifting statute, the “text, structure,
or legislative history” would have to clearly indicate that in
the IDEA, Congress did not intend to use the term “prevail-
ing party” in its traditional “term of art” sense.
The district court below held that the text of the IDEA set
it apart from other statutes. We acknowledge that the
IDEA’s text and structure is somewhat more complex than
other “prevailing party” fee-shifting statutes because the
IDEA not only states that attorney’s fees are available to
“prevailing parties,” but it also contains limiting provisions
in §§ 1415(i)(3)(D)-(G), which specify certain situations
where attorney’s fees are unavailable or must be reduced.
For instance, § 1415(i)(3)(D)(i) provides that a party may
not receive attorney’s fees incurred subsequent to a set-
tlement offer if the court or hearing officer determines that
the relief finally obtained by the plaintiff is not more fa-
vorable than the settlement offer. Section 1415(i)(3)(D)(ii)
provides in relevant part that attorney’s fees may not be
awarded (at the discretion of the state) for work done in
mediation conducted before the filing of a formal request for
a hearing. And § 1415(i)(3)(F)-(G) instructs district courts
to reduce an attorney’s fee award when the plaintiff has
“unreasonably protracted the final resolution of the contro-
versy.”
T.D. argues that these provisions create an implication
that Congress intended the term “prevailing party” as used
in the IDEA to include more than just parties that obtain
judicially sanctioned relief. The arguments are quite
strained, however, as none of these provisions clearly indi-
cate a Congressional intent about anything related to the
No. 02-3928 11
“prevailing party” requirement. John T. v. Del. County
Intermediate Unit, 318 F.3d 345, 557 (3d Cir. 2003).
“Rather, §§ 1415(i)(3)(D) through (G) define situations in
which attorney’s fees may be prohibited or reduced” even for
“prevailing parties.” Id. For instance, if a plaintiff rejects a
settlement offer and eventually receives a judicially sanc-
tioned victory that is less beneficial than the settlement
offer was, the plaintiff, though being a “prevailing party,”
may not get the fees incurred after the settlement offer. 20
U.S.C. § 1415(i)(3)(D)(i). Or, as § 1415(i)(3)(D)(ii) provides,
if a party pursues an unsuccessful mediation and eventu-
ally obtains a victory with judicial imprimatur, then he may
receive attorney’s fees for the unsuccessful mediation if it
occurred after the filing of a complaint. Or, if a plaintiff who
eventually obtains judicially sanctioned success unreason-
ably protracted the resolution of the case, the court may
reduce the attorney’s fee award to account for the unreason-
able delay. Id. § 1415(i)(3)(G).
The bottom line is that these limiting provisions do not
clearly indicate that the term “prevailing party” was
intended to encompass anything more in the IDEA than
in any of the other “prevailing party” fee-shifting statutes.
In fact, these provisions do not inform anything about the
meaning of the term “prevailing party” in the IDEA because
they are relevant only after a plaintiff has been deemed a
“prevailing party.”
We turn next to the legislative history. As both the
Second and Third Circuits have recognized, the legislative
history of the IDEA seems to indicate that Congress did not
intend the IDEA to be interpreted any differently from
other prevailing party fee-shifting statutes. See John T.,
318 F.3d at 557; J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119,
124 (2d Cir. 2002). When Congress added the fee-shifting
provision to the IDEA’s predecessor statute, the Education
of the Handicapped Act, the Senate Committee on Labor
and Human Resources provided that “it is the committee’s
12 No. 02-3928
intent that the terms ‘prevailing party’ and ‘reasonable’
be construed consistently with the U.S. Supreme Court’s de-
cision in Hensley v. Eckerhart,” which involved 42 U.S.C. §
1988. S. Rep. No. 99-112, at 13 (1986), reprinted in 1986
U.S.C.C.A.N. 1798, 1803 (footnote omitted). We have fol-
lowed this principle by interpreting the IDEA consistently
with § 1988. See, e.g., Bd. of Educ. v. Steven L., 89 F.3d 464,
468 (7th Cir. 1996) (“ ‘Prevailing party’ has the same
meaning under 20 U.S.C. § 1415(e) as 42 U.S.C. § 1988.”).
And importantly, Buckhannon made clear that its strictures
applied to § 1988. See, e.g., J.C., 278 F.3d at 124. From the
legislative history then, it appears that Buckhannon should
be applied to the IDEA.
In addition to the textual and legislative history argu-
ments, T.D. makes essentially two policy arguments, which
he claims show that Buckhannon should not be applied to
the IDEA. We approach these arguments with caution
because the Buckhannon Court itself, in analyzing the
policy arguments made in that case, stated: “Given the clear
meaning of ‘prevailing party’ in the fee-shifting statutes we
need not determine which way these various policy argu-
ments cut.” 532 U.S. at 610. Consequently, it is not clear
that the Supreme Court has left any room for this Court or
any other “to interpret anew the term ‘prevailing party’ in
light of the IDEA policies.” John T., 318 F.3d at 558.
T.D. contends that the statute is designed to facilitate
early, informal resolution of controversies between schools
and students. According to T.D., this is an important goal
of the IDEA because delay in finding an appropriate school
setting can be detrimental to a child’s development. T.D.
maintains that this goal would be undermined if we found
that private settlements do not entitle plaintiffs to attor-
ney’s fees because parents and attorneys would have an
incentive to reject settlement offers and thereby delay the
final resolution of the proceedings.
No. 02-3928 13
We recognize the importance and benefit of quick resol-
ution to any litigation; particularly, litigation that involves
the educational placement of a child. But many of the same
factors that make quick resolution through settlement
beneficial under the IDEA apply to the statutes that were
at issue in Buckhannon as well. For instance, there are
surely strong policy reasons for quickly resolving a disabled
person’s claims under the ADA. Nonetheless, Buckhannon
held that ADA plaintiffs may receive attorney’s fees only
upon receipt of some judicially sanctioned victory. In other
words, Buckhannon simply has closed the door on this
argument. John T., 318 F.3d at 557; J.C., 278 F.3d 124.
Moreover, in response to the same policy argument that
T.D. makes here—that settlement is to be encouraged
under the IDEA and therefore we should allow attorney’s
fees for settlement—the Second Circuit noted:
[I]t is difficult to reconcile [the] policy argument for
awarding fees pursuant to informal settlements with
the fact that, even before Buckhannon, Congress delib-
erately chose not to allow the recovery of attorneys’ fees
for participation in IEP proceedings that were not
convened as a result of an administrative proceeding or
judicial action. 20 U.S.C. § 1415(i)(3)(D)(ii). The IEP
Team is a mechanism for compromise and cooperation
rather than adversarial confrontation. This atmosphere
would be jeopardized if we were to encourage the
participation of counsel in the IEP process by awarding
attorneys’ fees for settlements achieved at that stage.
J.C., 278 F.3d at 124-25.
T.D.’s second policy argument centers around the stated
purpose of the IDEA “to ensure that all children with dis-
abilities have available to them a free appropriate public
education . . . to meet their unique needs.” 20 U.S.C.
§ 1400(d)(1)(A). T.D. contends that if the IDEA’s “prevailing
14 No. 02-3928
party” provision is interpreted to preclude the award of fees
to parties that settle, then students who must hire an
attorney and whose claims are ultimately resolved through
private settlement will be denied the free appropriate
education promised by the IDEA because they will be
saddled with large legal fees.
While this is probably T.D.’s strongest argument, we are
still not persuaded. We note that the IDEA only guarantees
the right to a free education; it does not explicitly guarantee
the right to attorney’s fees incurred in pursuit of that
education. Cf. Edie F. v. River Falls Sch. Dist., 243 F.3d
329, 336 (7th Cir. 2001) (“Clearly . . . parents . . . have a
right to champion their [child’s] cause, but the right to have
their attorneys fees picked up by the taxpayers is more
circumspect.”). Therefore, it is not clear that it would be
against the purpose of the IDEA to require plaintiffs who do
not achieve judicial imprimatur on their victory to bear
their own attorney’s fees. Furthermore, in light of
Buckhannon, which made explicit that “prevailing party”
has a clearly established meaning that overrides various
policy arguments, we are constrained to reject T.D.’s
contention on this point.
Moreover, we do not take lightly the fact that virtually
every court to have decided the issue has determined that
Buckhannon applies to the IDEA. For instance, the only two
federal appellate courts, the Second and Third Circuits,
that have squarely addressed the issue have both held
Buckhannon applicable to the IDEA.3 See John T., 318 F.3d
3
Also, though the district court below, recognizing that it was a
“very close issue,” ultimately held that Buckhannon did not apply
to the IDEA, T.D. v. La Grange Sch. Dist. No. 102, 222 F. Supp. 2d
1062, 1065 (N.D. Ill. 2002), that is clearly the minority position
among district courts. In a number of other cases in the Northern
(continued...)
No. 02-3928 15
at 556; J.C., 278 F.3d at 125; see also Smyth v. Rivero, 282
F.3d 268, 274 (4th Cir. 2002) (stating that Buckhannon
applies to all “prevailing party” fee-shifting provisions,
regardless of “the particular statutory context.”); John &
Leigh T. v. Iowa Dept. of Educ., 258 F.3d 860, 863-64 (8th
Cir. 2001) (assuming that Buckhannon applies to the IDEA
but not discussing the issue). Today, we join the Second and
Third Circuits in holding that Buckhannon is applicable to
the IDEA.
B. T.D.’s Status as a Prevailing Party Under
Buckhannon
As noted above, Buckhannon held that to be a “prevailing
party” a litigant must have obtained a judgment on the
merits, a consent decree, or some similar form of judicially
sanctioned relief. 532 U.S. at 603-04. In Buckhannon, the
Court specifically noted that “[p]rivate settlement agree-
ments do not entail the judicial approval and oversight
involved in consent decrees. And federal jurisdiction to en-
force a private contractual settlement will often be lacking
unless the terms of the agreement are incorporated into the
3
(...continued)
District of Illinois, it has been held that Buckhannon applies to
the IDEA. See, e.g., Koswenda v. Flossmoor Sch. Dist. No. 161, 227
F. Supp. 2d 979, 989 (N.D. Ill. 2002); Jose Luis R. v. Joliet
Township High Sch. Dist., No. 01 C 4798, 2002 U.S. Dist. LEXIS
20916, at *9-10 (N.D. Ill. Jan. 14, 2002). Likewise, numerous other
district courts have concluded that Buckhannon applies to the
IDEA. See, e.g., Jane Doe v. Boston Pub. Sch., 264 F. Supp. 2d 65
(D. Mass. 2003); Matthew V. v. DeKalb County Sch. Sys., 244 F.
Supp. 2d 1331, 1341-42 (N.D. Ga. 2003); Adams v. Dist. of
Columbia, 231 F. Supp. 2d 52, 54-55 (D.D.C. 2002); Ostby v.
Oxnard Union High, 209 F. Supp. 2d 1035 (C.D. Cal. 2002).
16 No. 02-3928
order of dismissal.” 532 U.S. at 604 n.7. Therefore, the
Court left the clear impression that private settlements do
not involve sufficient judicial sanction to confer “prevailing
party” status. See Christina A. v. Bloomberg, 315 F.3d 990,
993 (8th Cir. 2003); Smyth, 282 F.3d at 279.
The merits of this case were ultimately resolved through
a settlement between the parties. We agree with the Fourth
Circuit’s recent conclusion that some settlement agree-
ments, even though not explicitly labeled as a “consent
decree” may confer “prevailing party” status, if they are
sufficiently analogous to a consent decree. Smyth, 282 F.3d
at 281. For instance, “[w]here a settlement agreement is
embodied in a court order such that the obligation to comply
with its terms is court-ordered, the court’s approval and the
attendant judicial oversight (in the form of continuing
jurisdiction to enforce the agreement) may be . . . function-
ally a consent decree.” Id; see also John T., 318 F.3d at 558
(stating that “a stipulated settlement could confer prevail-
ing party status . . . . where it (1) contained mandatory
language, (2) was entitled ‘Order,’ (3) bore the signature of
the District Court judge, not the parties’ counsel, and (4)
provided for judicial enforcement”) (emphasis omitted)
(citation omitted).
The settlement agreement in this case does not bear any
of the marks of a consent decree. It is not embodied in a
court order or judgment, it does not bear the district court
judge’s signature, and the district court has no continuing
jurisdiction to enforce the agreement. Rather, it was merely
a private settlement agreement between the parties. T.D.
argues that because the district court was actively involved
in the settlement negotiations, having conducted a settle-
ment conference in his chambers and made certain settle-
ment suggestions, that we should find that there was
sufficient “judicial imprimatur” on the settlement to confer
“prevailing party” status.
No. 02-3928 17
Mere involvement in the settlement, however, is not
enough. There must be some official judicial approval of the
settlement and some level of continuing judicial oversight.
Buckhannon, 532 U.S. at 604 n.7; Smyth, 282 F.3d at 281.
Therefore, we find that the settlement agreement reached
in this case did not confer “prevailing party” status upon
T.D.
T.D. asserts that even if he cannot be said to have
prevailed via the settlement, that he was the “prevailing
party” in the due process hearing and therefore should be
compensated at least for that success. The parties do not
dispute that the IDEA’s fee-shifting provision allows courts
to grant attorney’s fees to parents who prevail in an ad-
ministrative hearing. Indeed, we held in Brown v.
Griggsville Comm. Unit Sch. Dist. No. 4, that the IDEA
does allow fees to the prevailing party in administrative
hearings. 12 F.3d 681, 683-84 (7th Cir. 1993). While we
recognize that this opinion was issued before Buckhannon,
we do not perceive that Buckhannon requires a different
conclusion.
The IDEA’s fee-shifting provision allows attorney’s fees to
the party that prevails “[i]n any action or proceeding”
brought under the IDEA. 20 U.S.C. § 1415(i)(3)(B). As other
courts have noted, the word “proceeding” as used in other
parts of the statute refers to administrative or due process
hearings. See, e.g., id. § 1415(d)(2)(F) & (k)(7)(C)(I) (“due
process proceedings”); Id. § 1415(i)(2)(B)(I) & (i)(3) (D)(ii)
(“administrative proceedings”); L.C. v. Warterbury Bd. of
Educ., No. 3:00 CV 580, 2002 U.S. Dist. LEXIS 6079, at *7-
8 (D. Conn. Mar. 21, 2002). And the Court in Buckhannon
gave no indication that it intended to overturn its decision
in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54
(1980). That case held that the fee-shifting provision in
Title VII, which also referred to “action or proceeding,”
allowed courts to award attorney’s fees to the prevailing
party in administrative hearings. Id. at 61.
18 No. 02-3928
The school district does not dispute that to the extent that
T.D.’s parents prevailed at the due process hearing, they
are eligible for fees for that success. The school district
disputes only whether T.D. prevailed at the due process
hearing at all. The Supreme Court has stated that a
plaintiff may be considered a “prevailing party” if “they
succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.”
Hensley, 461 U.S. at 433 (noting that this is a “generous
formulation”). We find that while T.D. did not succeed on
every issue at the due process hearing, he did prevail on
certain significant issues and achieved at least some of the
benefit he sought.
In his hearing request, T.D. sought to have the school
district conduct a case-study evaluation to determine his
eligibility for benefits under the IDEA. And he sought re-
imbursement for various costs incurred in attending the
private day school, including tuition, a one-on-one aide, and
transportation. The hearing officer granted T.D.’s request
for an evaluation by the school district, ordering the school
to conduct the evaluation on November 20, 1997. Signifi-
cantly, the hearing officer placed blame on the school
district for not requesting written consent to conduct the
evaluation, even though they had notice that T.D. might
have been eligible for IDEA benefits. The case-study
evaluation and IEP conference that followed, determined
that T.D. was in fact eligible for IDEA benefits and pro-
posed placement of T.D. at public school in a regular-
education classroom, with supplemental special-education
services to address T.D.’s needs. This determination repre-
sented some success for T.D. because prior to his request for
the due process hearing the school had not acknowledged
that T.D. was even eligible for IDEA benefits.
The hearing officer partially granted T.D.’s requests for
reimbursement for the costs of attending the private school,
awarding reimbursement for the cost of the one-on-one aide
No. 02-3928 19
and for transportation, but refusing to grant reimbursement
for the cost of tuition. The hearing officer characterized this
partial relief as an equitable award. He found that the
private day school was not providing T.D. with an appropri-
ate education; therefore, he did not award T.D. reimburse-
ment for the cost of the tuition. The hearing officer, how-
ever, found that the school district was at least partly to
blame for T.D.’s inappropriate placement at the private
school since the school district failed to conduct an evalua-
tion of T.D. and failed to offer T.D. any formal placement
proposal before the November 20, 1997 evaluation and
conference. Considering these failures, the hearing officer
ordered the school district to reimburse T.D. for the cost of
the one-on-one aid from the time she was hired until T.D.
could be enrolled in the public school. And the cost of
transportation to the private school was also ordered to be
reimbursed.
T.D. succeeded in obtaining the case-study evaluation
that the school previously had not conducted and that
ultimately led to the determination that he was eligible for
benefits under the IDEA. This success coupled with the re-
imbursement he received for the cost of the one-on-one aid
and transportation to the private school (which together
added up to nearly $1200 a month) rendered T.D. a “pre-
vailing party” in the administrative hearing. Therefore, we
find that T.D. is entitled to attorney’s fees for prevailing at
the administrative hearing.
C. Award of Expert Witness Fees
Finally, the school district challenges the district court’s
award of expert witness fees to T.D. as part of the attor-
ney’s fees and costs of the litigation. Because we determined
that T.D. was a prevailing party as to the administrative
hearing, we must consider whether T.D. should receive
expert witness fees incurred as part of that hearing.
20 No. 02-3928
Title 28 U.S.C. § 1920 is the general provision that
provides for the taxation of costs in federal court, and
§ 1920(3) allows for payment of witnesses.4 In 28 U.S.C.
§ 1821(b), Congress placed a limit on the witness fees
authorized by § 1920(3), providing that “[a] witness shall be
paid an attendance fee of $40 per day for each day’s atten-
dance.” In Crawford Fitting Co. v. J.T. Gibbons, the Su-
preme Court held that “when a prevailing party seeks
reimbursement for fees paid to its own expert witnesses, a
federal court is bound by the limit of § 1821(b), absent
contract or explicit statutory authority to the contrary.” 482
U.S. 437, 439 (1987). Therefore, we must look to the IDEA’s
fee-shifting provision to determine if it contains “explicit
statutory authority” for shifting of expert witness fees.
As cited above, the IDEA’s fee provision states:
In any action or proceeding brought under this section,
the court, in its discretion, may award reasonable at-
torney’s 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) (emphasis added). T.D. relies on
the italicized portion of the statute as authority to shift ex-
pert witness fees to the losing party. This provision, how-
ever, does not provide any explicit statement as to expert
witness fees.
The only federal appellate court to address the issue of
expert witness fees under the IDEA held that the IDEA did
not contain the necessary explicit authority to exceed the
amounts provided for in 28 U.S.C. § 1821(b). Neosho R-V
4
In relevant part § 1920 provides: “A judge or clerk of any court
of the United States may tax as costs the following: . . . (3) Fees
and disbursements for printing and witnesses.” 28 U.S.C. § 1920
(2003).
No. 02-3928 21
Sch. Dist. v. Clark, 315 F.3d 1022, 1031 (8th Cir. 2003). We
agree with the Eighth Circuit’s reasoning and conclusion. In
Neosho, the Eighth Circuit acknowledged that the construc-
tion of the IDEA’s fee provision appears to contemplate that
costs include something more than attorney’s fees, “but [it]
does not specifically authorize an award of costs or define
what items are recoverable as costs.” Id. Absent a specific
authorization for the allowance of expert witness fees,
“federal courts are bound by the limitations set out in 28
U.S.C. § 1821 and § 1920.” Id. (quoting Crawford Fitting
Co., 482 U.S. at 445).
Furthermore, in W. Va. Univ. Hosp., Inc. v. Casey, the
Supreme Court was faced with the question of whether a
former version 42 U.S.C. § 1988 gave authority to shift
expert fees. 499 U.S. 83, 84 (1991). This former version of
§ 1988 contained a fee-shifting provision, almost identical
to that in the IDEA, allowing “the prevailing party . . . a
reasonable attorney’s fee as part of costs.”5 42 U.S.C.
§ 1988(b) (1990). The Casey Court held that this language
was not an explicit statutory authorization that allowed
shifting of expert witness fees. 499 U.S. at 102.
In so holding, the Court observed that Congress had spe-
cifically enacted several statutes that explicitly provided for
the shifting of both attorney’s fees and expert witness fees.
Id. at 88-89 (noting that “[a]t least 34 statutes in 10
different titles of the U.S. Code explicitly shift attorney’s
fees and expert witness fees.”). The Court concluded that if
it were to interpret a statute that provides only for attor-
ney’s fees to actually allow shifting of both attorney’s fees
5
Following the Supreme Court’s decision in Casey, Congress
amended § 1988 by adding subsection (c), which provides: “In
awarding an attorney’s fee under subsection (b) of this section . . .
the court in its discretion may include expert fees as part of the
attorney’s fee.” 28 U.S.C. § 1988 (2003).
22 No. 02-3928
and expert fees, the “dozens of statutes referring to the two
separately [would] become an inexplicable exercise in
redundancy.” Id. at 92. Obviously, these same concerns
exist for the IDEA, which uses nearly identical statutory
language.
T.D. argues that the legislative history of the IDEA
supports allowing expert witness fees to the prevailing
party. That legislative history, in the form of a House
Conference report, states:
The conferees intend that the term “attorney’s fees as
part of the costs” include reasonable expenses and fees
of expert witnesses and the reasonable costs of any test
or evaluation which is found to be necessary for the
preparation of the . . . case.
H.R. Conf. Rep. No. 99-687, at 5 (1986), reprinted in 1986
U.S.C.C.A.N. 1807, 1808. We recognize that this report does
appear to support T.D.’s position. The Eighth Circuit,
however, rejected this identical argument, finding that
since “[n]othing in the plain language of the statute indi-
cates that the district court is authorized to exceed the
limitations set out in § 1821 and § 1920,” there is no am-
biguity in the statute, and therefore “no occasion to look to
the legislative history.” Neosho, 315 F.3d at 1032 (citing
Burlington N. R.R. v. Okla. Tax Comm’n, 481 U.S. 454, 461
(1987) (“Unless exceptional circumstances dictate oth-
erwise, when we find the terms of a statute unambiguous,
judicial inquiry is complete.”)).
The Casey Court in dicta characterized this portion of the
IDEA’s legislative history as “an apparent effort to depart
from ordinary meaning and to define a term of art,” noting
that “the specification would have been quite unnecessary
if the ordinary meaning of the term included those ele-
ments.” 499 U.S. at 91 n.5. We agree with the Eighth
Circuit’s determination that “this ‘apparent effort’ to define
a term of art in legislative history is an unsuccessful one.”
No. 02-3928 23
Neosho, 315 F.3d at 1032. The Supreme Court made clear
in Crawford that “explicit statutory authorization” was
necessary to allow courts to exceed the limitations of 28
U.S.C. § 1821 and § 1920. We find no such authorization in
the IDEA, particularly, in light of the fact that the Supreme
Court in Casey found that the same words used in the
former § 1988 (“reasonable attorney’s fee as part of costs”)
did not provide the necessary explicit statutory authoriza-
tion.
III. Conclusion
We hold that the Supreme Court’s requirements for
attaining prevailing party status set out in Buckhannon are
applicable to the IDEA. We find that the settlement reached
between the parties in this case was no more than a private
agreement, lacking the judicial imprimatur to elevate T.D.
to the status of prevailing party. T.D.’s success in the
administrative hearing, however, does entitle him to receive
attorney’s fees to the extent that he prevailed in that
hearing. Finally, we hold that expert witness fees are not
available to T.D. under the IDEA. Therefore, we AFFIRM in
part and REVERSE in part. The case is REMANDED to the
district court for a determination of the amount of attor-
ney’s fees to which T.D. is entitled based on the degree of
success he achieved in the administrative hearing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-14-03