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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 1, 2004 Decided December 3, 2004
No. 02-7126
REBA ALEGRIA, AS NEXT FRIEND OF THE MINOR CHILD,
ALFONSO ALEGRIA ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02582)
Marc B. Tucker argued the cause for appellants. With him
on the briefs were Thomas V.M. Linguanti, Carl W. Hampe,
Marc B. Tucker, Robert I. Berlow, Myrna L. Fawcett and
Arthur H. Fawcett.
Donna M. Murasky, Senior Litigation Counsel, Office of
Attorney General for the District of Columbia, argued the
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
cause for appellee. With her on the brief were Robert J.
Spagnoletti, Attorney General, and Edward E. Schwab, Dep-
uty Attorney General.
Alice K. Nelson, Ankur Goel, and Francine A. Hochberg
were on the brief for amicus curiae Coalition of Parent and
Attorney Advocates, et al.
Before: ROGERS, TATEL and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The Individuals with Disabilities
Education Act (‘‘IDEA’’), 20 U.S.C. § 1400 et seq. (2000),
provides for an award of attorneys’ fees to a ‘‘prevailing
party,’’ id. § 1415(i)(3)(B), a term the Supreme Court has
construed in the context of other fee-shifting statutes to
require judicial imprimatur on an enforceable judgment or
consent order. See Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604–05
(2000). The district court denied appellants’ requests for
awards of attorneys’ fees for private settlements reached
prior to administrative hearings on special education place-
ments. Appellants contend this was error because the pur-
pose and substantive rights created by the IDEA inform the
meaning of ‘‘prevailing party,’’ and the statutory text, which
carves out a specific exception to the grant of attorneys’ fees
after a settlement offer, indicates Congress intended to allow
the recovery of attorneys’ fees for private settlements as an
incentive for the prompt resolution of disputes. We agree
that appellants’ interpretation of the IDEA’s fee-shifting pro-
visions is plausible and supported by text in the IDEA.
However, appellants concede that the restrictions on attor-
neys’ fees also can be plausibly interpreted as curtailing
excessive fees, and as such does not expand the definition of
‘‘prevailing party’’ beyond that adopted in Buckhannon. In
the absence of clear evidence that Congress intended the
IDEA’s fee eligibility to be treated differently than other fee-
shifting statutes, and specifically, to allow awards of attor-
neys’ fees for private settlements, we hold that appellants fail
to overcome the presumption that Buckhannon applies. Ac-
cordingly, we affirm.
3
I.
Congress enacted the IDEA in 1975 to ensure that children
with disabilities have available to them a ‘‘free appropriate
public education.’’ 20 U.S.C. § 1400(d)(1)(A). To enable
parents to obtain special education services for their children
with disabilities, the IDEA requires states and the District of
Columbia to provide various ‘‘procedural safeguards.’’ Id.
§ 1415(a). These safeguards include an opportunity for me-
diation, id. § 1415(b)(5); a complaint process, id. § 1415(b)(6),
with the right to an ‘‘impartial due process hearing’’ before
the state or local education agency regarding such complaints,
id. § 1415(f)(1); and a right of review by the state agency of
a local agency’s determination, id. § 1415(g). During the
course of ‘‘any administrative proceeding,’’ parents have ‘‘the
right to be accompanied and advised by counsel.’’ Id.
§ 1415(h)(1). ‘‘Any party aggrieved’’ by the final outcome of
the administrative process may seek judicial review in state
or federal district court. Id. § 1415(i)(2)(A). ‘‘[T]he 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.’’ Id. § 1415(i)(3)(B).
Underlying appellants’ requests for an award of attorneys’
fees are proceedings involving minor children who are stu-
dents in the District of Columbia Public Schools eligible for
special education under the IDEA. They or their parents,
guardians, or court-appointed advocates sought provision by
the District of Columbia Public Schools of special education
placements. Their claims were resolved through a series of
administrative hearings and settlement agreements. They
then sued in court for an award of attorneys’ fees at the
prevailing rate in the community, experts’ costs, and interest.
The district court denied their motion for summary judg-
ment with respect to the claims resolved through pre-
administrative hearing settlement agreements (‘‘private set-
tlements’’), ruling that the parties to such claims were not
prevailing parties under Buckhannon and therefore were
ineligible for an award of attorneys’ fees under the IDEA.
An appeal was noted from the district court’s conditional
4
order of September 9, 2002; it is procedurally proper because
that order became final on November 8, 2002. See Sacks v.
Rothberg, 845 F.2d 1098, 1099 (D.C. Cir. 1988). Our review
of the district court’s denial of summary judgment is de novo.
Cicippio–Puleo v. Islamic Rep. of Iran, 353 F.3d 1024, 1031
(D.C. Cir. 2004).
II.
To demonstrate that they are eligible for awards of attor-
neys’ fees under the IDEA, appellants must provide ‘‘some
good reason’’ not to apply Buckhannon’s analysis of fee-
shifting statutes. Oil, Chem. & Atomic Workers Int’l Union
v. Dep’t of Energy, 288 F.3d 452, 455 (D.C. Cir. 2002); see
also Doe v. Boston Pub. Sch., 358 F.3d 20, 25–26 (1st Cir.
2004); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 475
(7th Cir. 2003). As the decisions of five other circuit courts of
appeals demonstrate, this burden is not easily met.1
In Buckhannon, the Supreme Court spoke broadly with
regard to fee-shifting statutes. While the fee requests before
the Court arose under provisions of the Fair Housing Amend-
ments Act of 1988 and the Americans with Disabilities Act of
1990 authorizing the award of attorneys’ fees to a ‘‘prevailing
party,’’ 42 U.S.C. §§ 3613(c)(2), 12205 (2000), the Court ob-
served that ‘‘[n]umerous federal statutes’’ similarly authorized
fee awards and that it has ‘‘interpreted these fee-shifting
provisions consistently.’’ Buckhannon, 532 U.S. at 600, 603
n.4 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983)).
Viewing the term ‘‘prevailing party’’ to be ‘‘a legal term of
art,’’ id. at 603, the Court held it did not ‘‘include[ ] a party
that has failed to secure a judgment on the merits or a court-
1 See Shapiro v. Paradise Valley Unified Sch. Dist., 374 F.3d
857 (9th Cir. 2004); Doe v. Boston Pub. Sch., 358 F.3d 20 (1st Cir.
2004); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469 (7th Cir.
2003); John T. v. Del. County Intermediate Unit, 318 F.3d 545 (3d
Cir. 2003); J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119 (2d Cir. 2002);
cf. Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002). Contra
Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 (9th Cir.
2002), cert. denied, 537 U.S. 820 (2002).
5
ordered consent decree, but has nonetheless achieved the
desired result because the lawsuit brought about a voluntary
change in the defendant’s conduct,’’ id. at 600. The Court
observed that it had never approved an award of attorneys’
fees without formal judicial action. Id. at 606. ‘‘Private
settlements,’’ the Court noted, ‘‘do not entail the judicial
approval and oversight involved in consent decrees,’’ and
‘‘federal jurisdiction to enforce a private contractual settle-
ment will often be lacking unless the terms of the agreement
are incorporated into the order of dismissal.’’ Id. at 604 n.7.
Stating that its precedent ‘‘counsel[s] against holding that the
term ‘prevailing party’ authorizes an award of attorney’s fees
without a corresponding alteration in the legal relationship of
the parties,’’ id. at 605, the Court gave short shrift to
ambiguous legislative history and to policy arguments unsup-
ported by empirical evidence, ‘‘given the clear meaning of
‘prevailing party,’ ’’ id. at 607–08, 610.
This court thus has applied Buckhannon broadly. In Oil,
Chemical & Atomic Workers, the court treated the phrase
‘‘substantially prevailed’’ in the Freedom of Information Act
(‘‘FOIA’’), 5 U.S.C. § 552(a)(4)(E) (2000), as ‘‘synonymous’’
with ‘‘prevailing party,’’ in denying an award of attorneys’
fees for a settlement agreement. 288 F.3d at 455. The court
held that the settlement, in the form of a stipulation and
order of dismissal signed by a judge, ‘‘did not meaningfully
alter the legal relationship of the parties’’ because ‘‘[i]ts only
effect was to dismiss the union’s lawsuit with a court order
when no court order was needed.’’ Id. at 458. Therefore, the
requestor of fees had not ‘‘ ‘been awarded some relief by [a]
court,’ either in a judgment on the merits or in a court-
ordered consent decree,’’ and was ineligible for fees. Id. at
457 (quoting Buckhannon, 532 U.S. at 603); see also Thomas
v. Nat’l Sci. Found., 330 F.3d 486, 493 (D.C. Cir. 2003).
While acknowledging that ‘‘some good reason’’ could rebut
the presumption that Buckhannon controlled, the court saw
nothing in the statutory text or legislative history to suggest
Congress intended FOIA fee awards to be treated differently
than those interpreted in Buckhannon. Oil, Chem. & Atomic
Workers, 288 F.3d at 455–56. To date, this court has declined
6
to follow Buckhannon only where controlling Supreme Court
precedent, which Buckhannon did not explicitly overrule,
interpreted a fee-shifting provision allowing an award of
attorneys’ fees ‘‘whenever [the court] determines that such
award is appropriate,’’ 42 U.S.C. § 7607(f) (2000), to mean, in
light of a clear statement in the legislative history, that
Congress intended to authorize attorneys’ fees for ‘‘legiti-
mate’’ lawsuits that ‘‘forced defendants to abandon illegal
conduct, although without a formal court order.’’ Sierra Club
v. EPA, 322 F.3d 718, 723 (D.C. Cir. 2003) (quoting Ruckel-
shaus v. Sierra Club, 463 U.S. 680, 686 n.8 (1983)).
Nevertheless, appellants contend they meet their burden.
Although nothing in the plain text of the IDEA expressly
indicates that Congress intended a ‘‘prevailing party’’ to
include those parties who enter private settlements, appel-
lants maintain that as a matter of statutory construction
there is ‘‘some good reason,’’ Oil, Chem. & Atomic Workers,
288 F.3d at 455, to conclude that eligibility for fees under the
IDEA differs from the fee-shifting statutes in Buckhannon.
Appellants’ purposive interpretation of the IDEA has been
rejected by other circuits. E.g., Doe, 358 F.3d at 29; T.D.,
349 F.3d at 477. Here, appellants rely in part on the IDEA’s
purpose to ensure a ‘‘free appropriate public education,’’ 20
U.S.C. § 1400(d)(1)(A). Because parents can vindicate their
substantive rights and those of their children through settle-
ment, appellants contend that the IDEA cannot be read to
exclude attorneys’ fees when settlement occurs. However,
although the ‘‘IDEA guarantees the right to a free education,
[ ] ‘it does not explicitly guarantee the right to attorney’s fees
incurred in pursuit of that education.’ ’’ Doe, 358 F.3d at 29
(quoting T.D., 349 F.3d at 477). Therefore, relying on this
purpose is insufficient to overcome the presumption that
Buckhannon applies.
Appellants also rely on the IDEA’s second stated purpose
‘‘to ensure that the rights of children with disabilities and
parents of such children are protected.’’ Id. § 1400(d)(1)(B).
To this end, Congress included various procedural safeguards
in the IDEA, including notice of the right to attorneys’ fees,
7
id. § 1415(d)(2)(M), to enable ‘‘full participation of the parents
and proper resolution of substantive disagreements.’’ See
Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 368
(1985). Allowing for the award of attorneys’ fees for private
settlements could protect children by facilitating efforts to
obtain early legal representation and prompt placements, as
appellants suggest. However, appellants cannot show that
the right to attorneys’ fees must apply to private settlements
in order for the IDEA’s purpose to be fulfilled. To the extent
that the absence of such awards may discourage representa-
tion or settlement, such effects are insufficient to overcome
the presumption established by Buckhannon as Congress
may have fulfilled the IDEA’s purpose by creating the admin-
istrative scheme itself and allowing the award of attorneys’
fees at the administrative hearing and judicial stages.
Appellants’ other statutory argument is based on
§ 1415(i)(3)(D)(i),2 which denies awards of attorneys’ fees to
those who reject a written settlement offer and obtain no
greater relief from a hearing officer or judge, and
§ 1415(i)(3)(D)(ii)3, which limits fees for individualized edu-
2 Section 1415(i)(3)(D)(i) provides:
Attorneys’ fees may not be awarded and related costs may not
be reimbursed in any action or proceeding under this section
for services performed subsequent to the time of a written
offer of settlement to a parent if—
(I) the offer is made within the time prescribed by Rule 68
of the Federal Rules of Civil Procedure or, in the case of an
administrative proceeding, at any time more than 10 days
before the proceeding begins;
(II) the offer is not accepted within 10 days; and
(III) the court or administrative hearing officer finds that
the relief finally obtained by the parents is not more favor-
able to the parents than the offer of settlement.
3 Section 1415(i)(3)(D)(ii) provides:
Attorneys’ fees may not be awarded relating to any meeting of
the IEP Team unless such meeting is convened as a result of
an administrative proceeding or judicial action, or, at the
discretion of the State, for a mediation described in subsection
8
cation programs (‘‘IEP’’) meetings. Other circuits have dis-
missed reliance on these provisions, observing that they ‘‘do
not inform anything about the meaning of the term ‘prevail-
ing party’ in the IDEA because they are relevant only after a
plaintiff has been deemed a ‘prevailing party.’ ’’ T.D., 349
F.3d at 476; accord Doe, 358 F.3d at 26–27. To the extent
that appellants rely on the canon of statutory construction,
expresio unius est exclusio alterius, i.e., when Congress
enacts specific limitations in a general statute it is presumed
to allow other circumstances not included in those limitations,
Nat’l Ass’n of Mfrs. v. Dep’t of Labor (‘‘NAM’’), 962 F. Supp.
191, 196 (D.D.C. 1997), aff’d, 159 F.3d 597 (D.C. Cir. 1998), we
agree with our sister circuits.
Appellants contend that ‘‘[b]y carving out a specific excep-
tion to the grant of attorneys’ fees after a settlement offer,
[Congress used] TTT language, [that] as a matter of statutory
construction, allows for fees to be awarded to parents who
succeed in settlement in the first place.’’ Appellants’ Br. at
30. Unless fees are allowed for private settlements, appel-
lants maintain, the restrictions on fee awards in
§ 1415(i)(3)(D)(i), (ii) would be superfluous. But, applied
here, expresio unius does not demand the interpretation
appellants advance. Expresio unius shows only that the
IDEA allows fee awards to those who ultimately prevail at an
administrative hearing or in a court proceeding and who have
not rejected better settlement offers, a showing that belies
appellants’ superfluity contention. As the District of Colum-
bia points out, nothing in NAM, 159 F.3d at 597, would
‘‘justify interpreting [§ 1415(i)(3)(D)(i)], applicable only to
parents who secure a favorable decision on the merits, as
textual evidence that ‘prevailing party’ includes parents who
settle their claims.’’ Appellee’s Br. at 21. In NAM, the court
merely construed the definition of ‘‘association’’ according to
its terms and declined to narrow the scope of that general
provision by reference to a partial exemption from it. 159
F.3d at 600.
(e) of this section that is conducted prior to the filing of a
complaint under subsection (b)(6) or (k) of this section.
9
Neither is appellant’s reading of § 1415(i)(3)(D)(ii) demand-
ed. As the Seventh Circuit observed: ‘‘if a party pursues an
unsuccessful mediation and eventually obtains a victory with
judicial imprimatur, then he may recover attorney’s fees for
the unsuccessful mediation if it occurred [before] the filing of
a complaint.’’ T.D., 349 F.3d at 476. This, too, indicates that
§ 1415(i)(3)(D)(ii) is not rendered superfluous if those who
enter into private settlements are ineligible for awards of
attorneys’ fees.
However, appellants’ reliance on § 1415(i)(3)(D)(i) also
turns on the implication of viewing it as a means by which
Congress intended to provide an incentive for settlements.
As appellants explained during oral argument,
§ 1415(i)(3)(D)(i) was Congress’s means of encouraging settle-
ments in order to carry out the IDEA’s purpose to enable
children with disabilities to receive an appropriate education
promptly, so as to ‘‘prepare them for employment and inde-
pendent living.’’ Id. § 1400(d)(1)(A). If fees for private
settlements are permitted, § 1415(3)(D)(i) would encourage
parents to accept good settlement offers from school districts
to avoid the risk of facing additional attorneys’ costs after an
administrative or court hearing; it also would encourage the
District of Columbia to make good settlement offers, and
thereby avoid having to pay larger awards of attorneys’ fees
after hearings. By contrast, appellants explained, applying
Buckhannon to the IDEA would undermine
§ 1415(i)(3)(D)(i)’s role in encouraging settlements: A parent
who refuses a written offer to settle a complaint, and later
prevails at an administrative hearing or in court but obtains a
result that is not more favorable than the written settlement
offer, would still be eligible for an award of attorneys’ fees for
work performed prior to the settlement offer, whereas those
parents who accept settlement offers would be ineligible for
any award of attorneys’ fees. But even if application of
Buckhannon will reduce the incentive to settle, that is insuffi-
cient to overcome Buckhannon’s powerful presumption about
what ‘‘prevailing party’’ means.
Appellants’ interpretation of § 1415(i)(3)(D)(i) is hardly un-
reasonable. In Spiegler v. District of Columbia, 866 F.2d
10
461, 467 (D.C. Cir. 1989), (citing 121 Cong. Rec. 37,416 (1975)
(statement of Sen. Williams)), the court acknowledged that
Congress ‘‘intended to ensure prompt resolution of disputes
regarding appropriate education for handicapped children.’’
The IDEA’s text offers some support for the focus on the
incentive role that Congress intended for § 1415(i)(3)(D)(i).
Section 1415(i)(3)(D)’s provisions underscore the desirability
of prompt placements by prohibiting awards of attorneys’ fees
for prehearing IEP meetings unless such meetings are con-
ducted prior to the filing of a complaint, or where a settle-
ment offer is made early, the parents fail to accept it within
ten days, and the relief in the offer is more favorable than
that later obtained. The only exception is where a parent
who is a ‘‘prevailing party’’ was ‘‘substantially justified in
rejecting the settlement offer.’’ Id. § 1415(i)(3)(E). In addi-
tion, § 1415(i)(3)(F), (G) reduces awards of attorneys’ fees if a
parent unreasonably protracts final resolution of the disputed
claim for placement but eliminates such reductions if the
school district unreasonably protracts final resolution. Fed.
R. Civ. P. 68,4 on which § 1415(i)(3)(D)(i) was patterned,
‘‘express[es] a clear policy of favoring settlement of all law-
suits.’’ Marek v. Chesny, 473 U.S. 1, 10 (1985).
The problem with appellants’ interpretation of
§ 1415(i)(3)(D)(i) is not a matter of its plausibility, however.
4 Fed. R. Civ. P. 68 provides in pertinent part:
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an
offer to allow judgment to be taken against the defending party
for the money or property or to the effect specified in the offer,
with costs then accrued. If within 10 days after the service of
the offer the adverse party serves written notice that the offer
is accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and there-
upon the clerk shall enter judgment. An offer not accepted
shall be deemed withdrawn and evidence thereof is not admissi-
ble except in a proceeding to determine costs. If the judgment
finally obtained by the offeree is not more favorable than the
offer, the offeree must pay the costs incurred after the making
of the offer.
11
Rather it is due to the fact that, as appellants concede, there
is another plausible interpretation of this provision that is
consistent with Buckhannon, namely that urged by the Dis-
trict of Columbia and adopted by other circuits. Under this
interpretation, § 1415(i)(3)(D)(i), and the other provisions lim-
iting fees, ‘‘ ‘define situations in which attorney’s fees may be
prohibited or reduced’ even for ‘prevailing parties.’ ’’ T.D.,
349 F.3d at 476 (quoting John T., 318 F.3d at 557). In
enacting § 1415(i)(3)(D)(i), the District of Columbia contends,
Congress incorporated into the IDEA the provisions of Fed.
R. Civ. P. 68 simply to reduce the amount of fee awards in an
administrative hearing or court proceeding, if the relief ob-
tained is not more favorable than a timely written offer of
settlement by the Public Schools. Therefore, following Buck-
hannon to preclude awards of attorneys’ fees for private
settlements would not undermine § 1415(i)(3)(D)(i).
The District of Columbia’s interpretation is not barred by
the statutory text. Even assuming appellants’ incentive in-
terpretation would be more likely to accomplish Congress’s
goal of ensuring prompt special education placements, the
District’s interpretation is a plausible view of Congress’s
intent. See T.D., 349 F.3d at 476; John T., 318 F.3d at 557.
Because there are two plausible statutory interpretations of
eligibility for awards of attorneys’ fees under the IDEA, one
of which is consistent with Buckhannon, we held that appel-
lants’ textual arguments fail to provide ‘‘some good reason,’’
Oil, Chem. & Atomic Workers, 288 F.3d at 455, not to follow
Buckhannon.
Appellants’ other contentions, even considered in conjunc-
tion with their statutory arguments, also fail to provide ‘‘some
good reason.’’ They maintain that by 1997, when Congress
reenacted the IDEA, the courts of appeals and district courts
had interpreted the IDEA to allow the award of attorneys’
fees for private settlements. Congress is ‘‘presumed to be
aware’’ of the circuit and district courts’ interpretation and to
have ‘‘adopt[ed] that interpretation’’ when it re-enacted the
IDEA ‘‘without change.’’ Lorillard v. Pons, 434 U.S. 575, 580
(1978). However, their re-enactment argument essentially re-
vives the catalyst theory rejected in Buckhannon, 532 U.S. at
605.
12
Appellants’ reliance on the cap on awards of attorneys’ fees
under the IDEA in the Appropriations Acts for the District of
Columbia for fiscal years 1998–2004, e.g., Pub. L. No. 108–
199, 118 Stat. 141 (2004), is misplaced. The D.C. Appropria-
tions Acts do not amend the IDEA and offer no insight into
congressional intent regarding fee awards for private settle-
ments under the IDEA.
Amicus’ reasons for not following Buckhannon are no more
persuasive. First, Amicus points to anomalies that would
result if attorneys’ fees are unavailable under the IDEA for
private settlements. Assuming such policy arguments may
be considered, see Doe, 358 F.3d at 29 (citing Buckhannon,
532 U.S. at 610), the empirical evidence on which Amicus
relies is not part of the record on appeal. Amicus refers to a
Report by the District of Columbia Auditor that, Amicus
asserts, shows that the number of administrative hearings has
increased from 28% in 2001 to 59% in 2002, and that settle-
ments have decreased by nearly 60%, and in which it is stated
that D.C. Public Schools ‘‘recognizes that if attorneys’ fees
are unavailable there is ‘a clear disincentive’ to alternative
dispute resolution.’’ Amicus Br. at 8 (quoting D.C. Auditor’s
Report at 44). Without examining the Auditor’s Report, the
court cannot evaluate the context of the Auditor’s conclusions.
Second, Amicus expresses concern about the obstacle to
judicial imprimatur for parents who enter private settlements
as part of the mandatory ‘‘administrative process,’’ for which,
Amicus contends, fees are expressly authorized. The District
of Columbia has eliminated the basis for Amicus’ concern by
treating parents who prevail at administrative hearings as
prevailing parties under § 1415(i)(3)(D)(i). Appellee’s Br. at
19.
Accordingly, we affirm the judgment denying appellants’
requests for awards of attorneys’ fees for private settlements
under the IDEA.