United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2005 Decided July 26, 2005
No. 04-7116
WILLIAM GOLDRING,
PARENT AND NEXT FRIEND OF
LAWRENCE ANDERSON, A MINOR, ET AL .,
APPELLANTS
v.
DISTRICT OF COLUMBIA,
A MUNICIPAL CORPORATION AND
CLIFFORD B. JANEY, OFFICIALLY AS
SUPERINTENDENT, D.C. PUBLIC SCHOOLS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01761)
Michael J. Eig argued the cause for the appellants. Haylie M.
Iseman was on brief.
Donna M. Murasky, Assistant Attorney General, District of
Columbia argued the cause for the appellees. Robert J.
Spagnoletti, Attorney General, District of Columbia and Edward
2
E. Schwab, Deputy Attorney General, District of Columbia,
were on brief.
Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON , Circuit Judge: After prevailing
in administrative proceedings against the District of Columbia
and District of Columbia Public Schools (collectively, the
District) under the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §§ 1400-1487, the appellants—five children
with disabilities and their parents—sued under the IDEA’s fee-
shifting provision, id. § 1415(i)(3)(B), to recover a portion of
their costs that the District refused to pay. The district court
granted summary judgment partially in their favor, but declined
to include in their award fees paid to expert witnesses beyond
the amounts permitted under 28 U.S.C. §§ 1821 and 1920.1 See
Goldring v. Dist. of Columbia, No. 02-CV-1761, slip op. at 1-10
(D.D.C. May 26, 2004), reprinted in Joint Appendix (J.A.) at
98-107. They now appeal, alleging that the district court erred
because, as they see it, an award of expert witness fees to a party
prevailing under the IDEA is not so limited. The question
before us thus is whether “reasonable attorneys’ fees as part of
the costs,” words that are used in section 1415, encompass
“expert fees,” words that are not. 20 U.S.C. § 1415(i)(3)(B).
We say no—and therefore affirm the district court—because
under United States Supreme Court precedent section 1415 of
the IDEA precludes the awarding of expert witness fees as part
of a prevailing party’s costs.
1
Section 1821 provides that “[a] witness shall be paid an attendance
fee of $40 per day for each day’s attendance.” 28 U.S.C. § 1821(b).
3
I.
To “ensure that all children with disabilities have available to
them a free appropriate public education . . . designed to meet
their unique needs,” 20 U.S.C. § 1400(d)(1)(A), the IDEA
conditions eligibility for federal education assistance on a
state’s implementation of “policies and procedures to ensure”
that resident children “who are in need of special education and
related services” are “identified, located, and evaluated” and
receive “[a]n individualized education program.” Id.
§ 1412(a)(3)-(4). Each child’s individualized education
program, or IEP, must be developed by a “team” including the
child’s parents, at least one “regular education teacher” and one
special education teacher, a local educational agency
representative who is knowledgeable about the school’s
“general education curriculum” and “the availability of
resources” and—“whenever appropriate”—the disabled child
himself. Id. § 1414(d)(1)(B)(i)-(iv), (vii); see Reid ex rel. Reid
v. Dist. of Columbia, 401 F.3d 516, 518-19 (D.C. Cir. 2005).
Among other things, the IEP must contain a statement of the
child’s current performance level and “the special education
and related services” the child will receive from the school. Id.
§ 1414(d)(1)(A)(i), (iii). Parents dissatisfied with “any matter
relating to” their child’s “identification, evaluation, or
educational placement” or “the provision of a free appropriate
public education” to him, id. § 1415(b)(6), may lodge their
complaints with a state educational agency and have their
complaints aired at an impartial due process hearing, see id.
§ 1415(f)(1), where they are accorded “the right to be
accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of
children with disabilities,” id. § 1415(h)(1). Under the IDEA’s
fee-shifting provision, the district court “in its discretion, may
award reasonable attorneys’ fees as part of the costs . . . to a
prevailing party who is the parent of a child with a disability.”
in such a proceeding or court action. Id. § 1415(i)(3)(B).
4
Exercising their statutory rights under the IDEA, the
appellant parents complained to the District about their
children’s educational placements. Following due process
hearings, they requested the District to reimburse their fees and
costs pursuant to the IDEA’s fee-shifting statute. With respect
to four of the children, 2 the District did not dispute that their
parents were the prevailing parties and paid a portion of their
requested fees. The parents and children sued to recover the
balance.
The district court granted partial summary judgment in their
favor. See Goldring, No. 02-CV-1761, slip op. at 10. Relevant
to this appeal, it concluded that they could not recover the
entirety of their expert fees, “but instead must be limited to no
more than what 28 U.S.C. §§ 1821 and 1920 permit.” Id. at 9.
According to the district court, because Supreme Court
precedent holds that “ ‘when a prevailing party seeks
reimbursement for fees paid to its own expert witnesses, a
federal court is bound by the limit of [section] 1821(b), absent
contract or explicit statutory authority to the contrary,’ ” the
critical question was “whether the IDEA provides such ‘explicit
statutory authority’ permitting recovery of expert witness fees.”
Id. at 8 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482
U.S. 437, 439 (1987)). The IDEA did not, it concluded;
therefore, it awarded the appellants only $120.00 in expert
witness fees—not the $6,836.50 they sought. Id. at 10.
The appellants sought reconsideration but were no more
successful. See Goldring v. Dist. of Columbia, No. 02-CV-1761,
2
Because Keith Murfee’s parents’ hearing request was dismissed
after their counsel withdrew the request, see J.A. 87, the District
disputed that Keith Murfee was a prevailing party, see J.A. 96. The
district court agreed, holding that he had not prevailed because the
benefits he received were attained by virtue of a private agreement
with “no involvement by the hearing officer.” Goldring, No. 02-CV-
1761, slip op. at 5. This appeal does not challenge that holding.
5
slip op. at 1-10 (D.D.C. July 21, 2004), reprinted in J.A. at 113-
20. The district court rejected both of their arguments—that is,
that our decision in Moore v. Dist. of Columbia, 907 F.2d 165
(D.C. Cir. 1990), held that a prevailing party is entitled to an
award of expert fees under the IDEA and that the IDEA’s
legislative history demonstrates that the Congress intended a
party prevailing under the IDEA to recover expert fees. See
Goldring, No. 02-CV-1761, slip op. at 3-8.
The parents and children timely appealed on July 28, 2004.
We have jurisdiction to entertain their appeal, see 28 U.S.C.
§ 1291, and on de novo review, see, e.g., Diamond v. Atwood, 43
F.3d 1538, 1540 (D.C. Cir. 1995), we affirm the district court.
II.
The question whether the IDEA’s fee-shifting
provision—section 1415—enables a prevailing party to recover
expert fees as part of his costs is one of first impression in our
Circuit and one not free of controversy in others. To date four
of our sister circuits have treated this issue and divided evenly
into opposing camps, two holding an IDEA prevailing party
cannot recover expert fees, see T.D. v. LaGrange Sch. Dist. No.
102, 349 F.3d 469, 481-82 (7th Cir. 2003); Neosho R-V Sch.
Dist. v. Clark, 315 F.3d 1022, 1031-33 (8th Cir. 2003), two
holding he can, see Murphy v. Arlington Cent. Sch. Dist. Bd. of
Educ., 402 F.3d 332, 337-39 (2d Cir. 2005); Arons v. N.J. Bd. of
Educ., 842 F.2d 58, 62 (3d Cir. 1988). The district courts have
likewise failed to reach a consensus on the question, compare,
e.g., BD v. DeBuono, 177 F. Supp. 2d 201, 207-08 (S.D.N.Y.
2001) (allowing recovery of expert fees); Mr. J. v. Bd. of Educ.,
98 F. Supp. 2d 226, 242-43 (D. Conn. 2000) (same); Field v.
Haddonfield Bd. of Educ., 769 F. Supp. 1313, 1323 (D.N.J.
1991) (same), with Eirschele v. Craven County Bd. of Educ., 7
F. Supp. 2d 655, 659-60 (E.D.N.C.1998) (refusing recovery of
expert fees); Cynthia K. v. Bd. of Educ. of Lincoln-Way High
Sch. Dist., 1996 WL 164381, at *2 (N.D. Ill., April 1, 1996)
6
(same), including those within our Circuit, compare, e.g.,
Czarniewy v. Dist. of Columbia, No. 02-CV-1496, slip op. at 4-5
(D.D.C. Mar. 25, 2005) (allowing recovery of expert fees);
Bailey v. Dist. of Columbia, 839 F. Supp. 888, 892 (D.D.C.
1993) (same); Aranow v. Dist. of Columbia, 791 F. Supp. 318,
318 (D.D.C. 1992) (same), with George v. Dist. of Columbia,
No. 02-CV-1656, mem. at 2 (D.D.C. Mar. 8, 2004) (refusing
recovery of expert fees); Goldring, No. 02-CV-1761, slip op. at
9 (same). The correct decision does not seem to us to be
difficult to reach, for the Supreme Court has stated in fairly
unequivocal terms that language nearly identical to that used in
section 1415 is unambiguous and, more to the point, does not
allow a prevailing party to shift his expert fees. Accordingly,
today we join the Seventh and Eighth Circuits in holding that a
prevailing party under the IDEA cannot recover expert fees.
The IDEA’s fee-shifting provision provides that “[i]n any
action or proceeding brought under this section, the court, in its
discretion, may award reasonable attorneys’ fees as part of the
costs . . . to a prevailing party who is the parent of a child with
a disability.” 20 U.S.C. § 1415(i)(3)(B). That the crucial
statutory language—“reasonable attorneys’ fees as part of the
costs,” id.—fails to allow a prevailing party to shift his expert
fees flows directly from the application of two Supreme Court
decisions. One tells us 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.” Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439 (1987).
The other tells us that the IDEA’s fee-shifting provision
contains no such “explicit statutory authority to the contrary.”
See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991).
In Casey, the Court addressed whether an earlier version of
42 U.S.C. § 1988, which provided that “the court, in its
discretion, may allow the prevailing party . . . a reasonable
7
attorney’s fee as part of the costs,” satisfied the Crawford
Fitting Co. “explicit statutory authority” test. Id. at 87. The
Court concluded that it did not. Id. at 97. Looking to the
“record of statutory usage,” it explained that, “[w]hile some
fee-shifting provisions, like § 1988, refer only to ‘attorney’s
fees,’ . . . many others explicitly shift expert witness fees as
well as attorney’s fees.” Id. at 88 (emphasis in original). By
the Court’s count, “[a]t least 34 statutes in 10 different titles of
the United States Code explicitly shift attorney’s fees and
expert witness costs.” Id. at 89 (emphasis in original); see id.
at n.4. In view of a record of usage that demonstrated “beyond
question” that attorney’s fees and expert witness fees are
“distinct items of expense,” the Court concluded that, if it were
to hold that “the one includes the other, dozens of statutes
referring to the two separately become an inexplicable exercise
in redundancy.” Id. at 92. Not surprisingly, the Court declined
to so hold. Accordingly, because section 1415 and the version
of section 1988 construed in Casey contain materially identical
language and Casey held that section 1988’s language does not
enable a prevailing party to shift his expert fees, we cannot but
conclude that section 1415 does likewise. That is the end of the
matter for us.
But it is not the end for the appellants. Finding the statute’s
text unhelpful, they seek refuge in its history. Legislative
history is a traditional tool of statutory construction to divine
congressional intent, they argue, and, when considered here, it
reveals an intent to allow a prevailing party to shift expert fees
under section 1415. The appellants point to a single sentence in
the House Conference Report on the Handicapped Children’s
Protection Act (Conference Report), which amended the IDEA:
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
8
is found to be necessary for the preparation of
the parent or guardian’s case in the action or
proceeding, as well as traditional costs incurred
in the course of litigating the case.
H.R. CONF. REP . NO. 99-687, at 5 (1986), reprinted in 1986
U.S.C.C.A.N. 1789, 1808. While two of our sister circuits have
looked to this language in construing section 1415, see Murphy,
402 F.3d at 336-37; Arons, 842 F.2d at 62, we believe recourse
to it is simply unwarranted.
While “[r]eference to statutory design and pertinent legislative
history may often shed new light on congressional intent,
notwithstanding statutory language that appears superficially
clear,” Natural Res. Def. Council v. Browner, 57 F.3d 1122,
1127 (D.C. Cir. 1995) (internal quotation marks omitted);
accord, e.g., Sierra Club v. EPA, 353 F.3d 976, 988 (D.C. Cir.
2004); Consumer Elec. Ass’n v. FCC, 347 F.3d 291, 298 (D.C.
2003), we do not confront “superficially clear” language here.
In Casey, the Supreme Court said that the expression
“reasonable attorneys’ fees as part of the costs” is clear, not just
superficially so. See 499 U.S. at 98-99 (rejecting argument that
section 1988’s purpose must overcome ordinary meaning of
statutory terms because “[w]here [statutory text] contains a
phrase that is unambiguous—that has a clearly accepted
meaning in both legislative and judicial practice—we do not
permit it to be expanded or contracted by the statements of
individual legislators or committees during the course of the
enactment process”). This is good enough for us for “when the
statute’s language is plain, the sole function of the courts – at
least where the disposition required by the text is not absurd –
is to enforce it according to its terms.” Lamie v. United States
Tr., 540 U.S. 526, 534 (2004) (internal quotation marks
omitted); see also Ratzlaf v. United States, 510 U.S. 135, 147-48
(1994) (courts should “not resort to legislative history to cloud
a statutory text that is clear”); Davis v. Michigan Dep’t of
9
Treasury, 489 U.S. 803, 808-09 n.3 (1989) (“Legislative history
is irrelevant to the interpretation of an unambiguous statute.”).
In our view this case represents a paradigmatic one for
application of the principle that statutory text enacted by the
Congress trumps the views expressed by one of its committees.3
See Neosho R-V Sch. Dist., 315 F.3d at 1032 (“Absent some
ambiguity in the statute, we have no occasion to look to
legislative history.”); accord T.D., 349 F.3d at 482. As we said
last term, “there would be no need for a rule – or repeated
admonition from the Supreme Court – that there should be no
resort to legislative history when language is plain and does not
lead to an absurd result, if the rule did not apply precisely when
plain language and legislative history may seem to point in
opposite directions.” United States ex rel. Totten v. Bombardier
Corp., 380 F.3d 488, 494-95 (D.C. Cir. 2004).
Continuing down this path, the appellants maintain that the
Conference Report gains additional relevance in light of the
Supreme Court’s apparent reliance on it in Casey. The
appellants are not alone in this view: In reaching a holding
contrary to our own, the Second Circuit found the Casey Court’s
characterization of this snippet of legislative history as “an
apparent effort to depart from ordinary meaning and to define a
term of art,” 499 U.S. at 91 n.5, to support its construction of
section 1415. See Murphy, 402 F.3d at 336-38. “[A]pparent” or
3
At oral argument, there was some discussion whether the Congress
voted on the language of the Conference Report the appellants rely
on. See Tr. of Oral Argument at 4:10. We have explained before that
“[w]hile both the conference report and the joint explanatory
statement are printed in the same document, Congress votes only on
the conference report,” which contains the “formal legislative
language.” Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236
(D.C. Cir. 2003). The language the appellants rely on is from the
“joint explanatory statement,” see H.R. C ONF . REP . NO. 99-687, at 5
(1986), reprinted in 1986 U.S.C.C.A.N. 1789, 1808, and thus has no
force of law. See id. at 237.
10
no, we conclude, as have two other circuits, see T.D., 349 F.3d
at 482; Neosho R-V Sch. Dist., 315 F.3d at 1032, that the
Conference Report’s “effort” is a failure. A sentence in a
conference report cannot rewrite unambiguous statutory text,
particularly text with a Supreme Court- tested and -approved
meaning. The Casey holding declares that “[w]here [the statute]
contains a phrase that is unambiguous—that has a clearly
accepted meaning in both legislative and judicial practice—we
do not permit it to be expanded or contracted by the statements
of individual legislators or committees during the course of the
enactment process.” 499 U.S. at 99-100 (citing United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989).
Nor are we convinced to reach a different result by the
appellants’ other arguments derived from the Casey Court’s
footnote reference to the Conference Report. First, we are
unpersuaded by the fact that the Justice who included the
footnote is a reputed textualist. See Murphy, 402 F.3d at 337
(“To those who would question our resort to legislative history,
we observe that it was Justice Scalia, a noted skeptic of the use
of legislative history, who authored Casey’s dicta about the
apparent effort by Congress to depart from the ordinary meaning
of the term ‘costs’ in the IDEA.”). If the Court had found this
one sentence of legislative history compelling, it would have
included section 1415 in its catalogue of statutes authorizing a
prevailing party to shift attorney’s fees as well as expert fees. In
other words, the Court would have counted “[a]t least” 35 such
statutes, not 34. Casey, 499 U.S. at 89.
Second, we cannot agree with the Second Circuit that “it [is]
reasonable to infer that Congress, on the basis of the Supreme
Court’s decision in Casey, saw no need to amend the IDEA
because the Court had recognized that, in enacting the IDEA,
Congress sufficiently indicated in the Conference Committee
Report that prevailing parties could recover expert fees under
the Act.” Murphy, 402 F.3d at 337. While the Supreme Court
11
has instructed us that “[t]he fact that inaction may not always
provide crystalline revelation . . . should not obscure the fact that
it may be probative to varying degrees,” Johnson v. Transp.
Agency of Santa Clara Cty., 480 U.S. 616, 629 n.7 (1987);
accord United States v. Delgado-Garcia, 374 F.3d 1337, 1359
(D.C. Cir. 2004), we doubt that the Congress’s inaction with
respect to section 1415 following Casey is probative at all.
More to the point, given that the Casey Court merely labeled the
Conference Report an “apparent effort” by the congressional
committee and did not number section 1415 among the statutes
authorizing the recovery of attorney’s fees and expert fees, we
are unwilling to infer from the Congress’s failure after Casey to
amend section 1415 that the Congress believed that the Supreme
Court had considered the text to have been altered by the
Conference Report. Indeed, given that the version of section
1988 construed in Casey is nearly identical to section 1415, the
more reasonable inference to draw from the fact that, following
Casey, the Congress amended section 1988 but not section 1415
is that the Congress had no intention of allowing recovery of
expert fees under the IDEA. Before the Court handed down
Casey, the Congress had a proven track record demonstrating its
ability to shift expert fees when it desired and, following the
Court’s decision, the Congress was—and is—unquestionably on
notice of the precise language required to do so. The former
inferential path, in any event, leads to where reason goes to die.
Moving from Supreme Court precedent to our own, the
appellants cite our decision in Moore v. Dist. of Columbia, 907
F.2d 165 (D.C. Cir.) (en banc), cert. denied, 488 U.S. 998
(1990), as well as the procedural history leading up to it, for the
proposition that we have long allowed an IDEA prevailing party
to recover expert fees. In Moore, however, we addressed only
the issue “whether the Handicapped Children’s Protection Act
. . . authorizes a court to award attorney fees to a party who has
prevailed in an administrative proceeding under the Education
of the Handicapped Act,” id. (internal citations omitted), and
12
“conclude[d] that both the text and the legislative history of
HCPA evidence congressional intent to authorize recovery of
fees by a parent who prevails in EHA administrative
proceedings.” Id. at 176. Our holding in Moore did not
consider whether a prevailing party may shift his expert fees, as
appellants themselves readily concede. See Appellants’ Br. at
29 (“Th[e] [expert fees] issue simply was never addressed.”).
The appellants’ last argument is that, given the critical role of
professional opinion in assessing the educational needs of a
child with disabilities, the upshot of denying an IDEA prevailing
party expert fees will be that parents seeking to contest a school
district’s educational placement may face a severe informational
disadvantage vis-à-vis the school district. While we are not
unsympathetic to the challenges that these and other parents
often confront in securing an appropriate free education for their
children with disabilities, this line of argument—based on
considerations of public policy rather than statutory
interpretation—is, in our view, addressed to the wrong branch
of government under our constitutional design. Our job is to
interpret the law as it is, not as it should be. See Neosho R-V
Sch. Dist., 315 F.3d at 1033 (“ ‘[T]he problems of public policy
are for the legislature and [the court’s] job is one of interpreting
statutes, not redrafting them.’ ” (quoting Welsh v. Boy Scouts of
Am., 993 F.2d 1269, 1270-71 (7th Cir. 1993))). Accordingly, a
prevailing party under the IDEA may shift expert fees only to
the extent allowed under sections 28 U.S.C. §§ 1821 and 1920.4
4
While the appellants contend that 28 U.S.C. § 1821 is inapplicable
in this context because it is limited to court witnesses, see 28 U.S.C.
§ 1821(a)(1) (“[A] witness in attendance at any court of the United
States, or before a United States Magistrate Judge, or before any
person authorized to take his deposition pursuant to any rule or order
of a court of the United States, shall be paid the fees and allowances
provided by this section.”), we find their argument, which they raised
for the first time in their reply brief, untimely. See, e.g., Presbyterian
Med. Ctr. of the Univ. of Penn. Health Sys. v. Shalala, 170 F.3d 1146,
13
Finally, a word or two about our colleague’s dissent. Of
course, the Congress may adopt a term of art in a fee-shifting
statute. See Casey, 499 U.S. at 91 n.5. Of course, a conference
report offers “ ‘persuasive evidence of congressional intent’
after statutory text itself.” Moore, 907 F.2d at 175 (quoting &
citing Demby v. Schweicker, 671 F.2d 507, 510 (D.C. Cir.
1981)) (emphasis added). But the words of the statute do indeed
enjoy pride of place: Our “inquiry into the Congress’s intent
proceeds, as it must, from ‘the fundamental canon that statutory
interpretation begins with the language of the statute itself.’ ”
Am. Fed’n of Labor & Congress of Indus. Orgs. v. Fed. Elec.
Comm’n, 333 F.3d 168, 180 (D.C. Cir. 2003) (Henderson, J.,
concurring in judgment) (quoting & citing Butler v. West, 164
F.3d 634, 639 (D.C. Cir. 1999)). Thus job one is to read the
statute, read the statute, read the statute. See Am. Fed’n of
Labor & Congress of Indus. Orgs., 333 F.3d at 180 (Henderson,
J., concurring in judgment) (citing HENRY J. FRIENDLY,
BENCHMARKS 202 (1967) (“(1) Read the statute; (2) read the
statute; (3) read the statute!” (quoting Justice Frankfurter’s
“threefold imperative to law students”))). Moreover, we do not
read section 1415 in a precedential vacuum. Despite the
dissent’s characterization of Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 439 (1987), as allowing a court to
“impl[y]” or “infer” “explicit statutory authority” to shift expert
fees, Dissent at 7, 9, the Supreme Court held otherwise in Casey
in deciding “whether the term ‘attorney’s fee’ in § 1988
provides the ‘explicit statutory authority’ required by Crawford
1152 (D.C. Cir. 1999) (court need not consider argument raised for
first time in reply brief). In any event, we agree with the Eighth
Circuit that “the specific language of the IDEA broadens the
applic ation of the general cost statutes by permitting the court to
‘award reasonable attorneys’ fees as part of the costs’ ‘in any action
or proceeding brought under this section.’ ” Neosho R-V Sch. Dist.,
315 F.3d at 1031-32 (citing 20 U.S.C. § 1415(i)(3)(B) & emphasis in
original).
14
Fitting” to shift expert fees. Casey, 499 U.S. at 87. It held that
the term “unambiguous[ly]” does not; the term “has a clearly
accepted meaning in both legislative and judicial practice,” a
meaning not “expanded or contracted by the statements of
individual legislatures or committees.” Id. at 98 (emphasis
added). Accordingly, the dissent’s observation that “nothing in
Casey precludes reference to legislative history clearly
indicating that Congress intends to depart from the ordinary
meaning of a statutory phrase and to define that phrase as a term
of art” proves nothing with respect to section 1415. Dissent at
6. Given that the Congress used a “restrictive” term in section
1415 and section 1988, Casey, 499 U.S. at 99, our applying the
same “restrictive” meaning to it now can hardly be labeled an
“overreading” of Casey. Dissent at 7. And given that the
Supreme Court found the term unambiguous, our rejection of a
legislative committee’s differing gloss cannot, consistent with
Supreme Court precedent and our own, fairly be described as
allowing “the Court to trump Congress in defining statutory
terms.” Dissent at 5. To do otherwise would substitute the
Congressional Record for the United States Code, as the
Supreme Court cautioned us against in Casey. See 499 U.S. at
98. Thus, while the dissent “infer[s]” “a comprehensive
statement of congressional intent” by reading a brief passage of
legislative history, Dissent at 4, 9, we find no “explicit statutory
authority” to shift expert fees in section 1415 by reading the
words of the statute.
* * *
For the foregoing reasons, the judgment of the district court is
affirmed.
So ordered.
ROGERS, Circuit Judge, dissenting: In West Virginia
University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), the
Supreme Court construed the “ordinary meaning” of the term
“attorney’s fees” in 42 U.S.C. § 1988 not to include fees for
experts’ services. Id. at 91-92 & n.5. Listing 34 statutes that
explicitly shift both attorney’s fees and expert witness fees, see
id. at 89 & n.4, the Court explained that “this statutory usage
shows beyond question that attorney’s fees and expert fees are
distinct items of expense,” id. at 92. The Court further
explained that while lower courts may have relied previously on
their equitable powers to shift fees for experts’ services, they did
not shift them as an element of attorney’s fees, see id. at 92, and
at the time § 1988 was enacted, “neither statutory nor judicial
usage regarded the phrase ‘attorney’s fees’ as embracing fees for
experts’ services,” id. at 97. Thus, the Court concluded that the
“clearly accepted meaning in both legislative and judicial
practice” of the phrase “attorney’s fees” was “unambiguous”
and could not be “expanded or contracted by the statements of
individual legislators or committees during the course of the
enactment process.” Id. at 98-99. The Court therefore held that
the term “attorney’s fees” in § 1988 did not provide the
necessary “explicit statutory authority” to shift fees for experts’
services beyond the limits set in 28 U.S.C. §§ 1821 and 1920.
Id. at 86-87 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 439 (1987)). While my colleagues treat this
conclusion as “the end of the matter” because the fee-shifting
provision of the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1415(i)(3)(B), contains the same
language construed by the Court in Casey, Op. at 7, I conclude,
in light of this court’s en banc decision in Moore v. District of
Columbia, 907 F.2d 165 (D.C. Cir. 1970) (en banc), that the
Supreme Court’s definition of the “ordinary meaning” of the
term “attorney’s fees” does not apply to the IDEA’s fee-shifting
provision because Congress clearly expressed its intent in the
Conference Report to define the phrase “attorney’s fees as part
of the costs” as a term of art to include fees for experts’ services.
2
See H.R. C O NF. REP . NO. 99-687, at 5 (1986).1 Accordingly, I
respectfully dissent.
The Joint Explanatory Statement in the Conference Report
accompanying the fee-shifting provision of the IDEA states:
The conferees intend that the term “attorneys’ 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 parent or guardian’s case in the
action or proceeding, as well as traditional costs
incurred in the course of litigating a case.
Id. In footnote 5 of the Casey opinion, the Supreme Court
explained that this statement did not provide evidence of the
“ordinary meaning” of the term “attorney’s fees” in § 1988
because the “specification [in the Conference Report] would
have been quite unnecessary if the ordinary meaning of the term
included those elements. The statement is an apparent effort to
depart from ordinary meaning and to define a term of art.”
Casey, 499 U.S. at 91 n.5. Thus, the Court recognized in
footnote 5 that Congress could depart from the ordinary
meaning of the statutory phrase in § 1988 by defining it as a
term of art. While the Second and Third Circuits view the
Conference Report accompanying the IDEA’s fee-shifting
provision as persuasive evidence that Congress intended to
authorize recovery of fees for experts’ services in IDEA
proceedings, see Murphy v. Arlington Cent. Sch. Dist. Bd. of
1
The Conference Report accompanied the Handicapped
Children’s Protection Act of 1986, which amended the IDEA to
include a fee-shifting provision that was originally codified at 20
U.S.C. § 1415(e)(4)(B) and is currently codified at 20 U.S.C. §
1415(i)(3)(B).
3
Educ., 402 F.3d 332, 337 (2d Cir. 2005); Arons v. New Jersey
State Bd. of Educ., 842 F.2d 58, 62 (3d Cir. 1987), my
colleagues join the Seventh and Eighth Circuits in rejecting
reliance on the Conference Report on the grounds that the
Supreme Court in Casey defined the ordinary meaning of the
term “attorney’s fees” and that the “apparent effort” in the
Conference Report to depart from that meaning was
unsuccessful. See Op. at 10; T.D. v. LaGrange Sch. Dist. No.
102, 349 F.3d 469, 482 (7th Cir. 2003); Neosho R-V Sch. Dist.
v. Clark, 315 F.3d 1022, 1032 (8th Cir. 2003). In my view, that
conclusion is inconsistent with this court’s en banc decision in
Moore and rests on a misreading of Casey and Crawford Fitting.
Sitting en banc, this court in Moore relied on a conference
report as evidence of congressional intent to authorize recovery
of attorney’s fees incurred in IDEA administrative proceedings.
See Moore, 907 F.2d at 175. In so doing, the court recognized
that a conference report “‘is the most persuasive evidence of
congressional intent’ after statutory text itself.” Id. (quoting
Demby v. Schweicker, 671 F.2d 507, 510 (D.C. Cir. 1981)).
Similarly, in relying on the Conference Report accompanying
the IDEA’s fee-shifting provision as evidence of congressional
intent to allow the shifting of fees for experts’ services in IDEA
proceedings, the Second Circuit in Murphy explained why a
joint explanatory statement in a conference report is more
persuasive as evidence of legislative intent than a committee
report prepared before either the House or the Senate has passed
a bill. See Murphy, 402 F.3d at 337. Because a conference
report “represents the final statement of terms agreed to by both
houses, next to the statute itself it is the most persuasive
evidence of congressional intent.” Id. (quoting Disabled in
Action of Metro. N.Y. v. Hammons, 202 F.3d 110, 124 (2d Cir.
2000)). Although my colleagues observe that Congress does not
vote on the joint explanatory statement, see Op. at 9 n.3 (citing
Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236 (D.C. Cir.
4
2003)), it is nonetheless true that in voting on the statutory
language agreed to by the House and Senate conferees, Congress
can reasonably be understood to accept the joint explanatory
statement as the intended meaning of the statutory text. See
Moore, 907 F.2d at 176; see also Murphy, 402 F.3d at 337
(citing ROBERT A. KATZMANN , COURTS AND CONGRESS 63-64
(1997)). As conference reports are often terse statements
unaccompanied by the kind of extended analysis contained in
the initial reports of the individual committees of the House and
Senate, the fact that the Conference Report accompanying the
fee-shifting provision of the IDEA contains only a “single
sentence” on fees for experts’ services is not a reason for
rejecting its persuasive force, Op. at 7, especially when that
sentence is a comprehensive statement of congressional intent
on the subject.
While, as my colleagues point out, Op. at 8-9, the Supreme
Court has held that there is no occasion to resort to legislative
history when the statutory language is clear, the Court has also
held that the “‘strong presumption’ that the plain language of the
statute expresses congressional intent [can be] rebutted . . . when
a contrary legislative intent is clearly expressed,” such as a
“conclusive statement in the legislative history.” Ardestani v.
INS, 502 U.S. 129, 135-36 (1991) (quoting Rubin v. United
States, 449 U.S. 424, 430 (1981)) (internal citation omitted).
Indeed, because the ultimate purpose of statutory construction
is to effectuate congressional intent, cf. Chickasaw Nation v.
United States, 534 U.S. 84, 94 (2001), a statutory phrase is to be
given its ordinary meaning only “[i]n the absence of persuasive
reasons to the contrary.” Banks v. Chicago Grain Trimmers
Ass’n, 390 U.S. 459, 465 (1968); Nat’l Insulation Transp.
Comm. v. ICC, 683 F.2d 533, 537 (D.C. Cir. 1982). Although
the Court in Casey found no persuasive evidence of
congressional intent to depart from the ordinary meaning of the
term “attorney’s fees” in § 1988, see 499 U.S. at 98, here the
5
Conference Report accompanying the IDEA’s fee-shifting
provision clearly and conclusively states Congress’s intent to
define the phrase “attorney’s fees as part of the costs” as a term
of art to include fees for experts’ services. To apply the
Supreme Court’s definition of the ordinary meaning of the term
“attorney’s fees” to the IDEA in the face of contrary legislative
intent is to allow the Court to trump Congress in defining
statutory terms. While my colleagues correctly point out that
the “inquiry into the Congress’s intent . . . begins with the
language of the statute,” Op. at 13 (quoting Am. Fed’n of Labor
& Congress of Indus. Orgs. v. Fed. Election Comm’n, 333 F.3d
168, 180 (D.C. Cir. 2003) (Henderson, J., concurring in the
judgment) (emphasis added)), they fail to acknowledge that it
does not always end there. The situation might be somewhat
different had the Court in Casey purported to define “attorney’s
fees” as a term of art, as it did with the term “prevailing party”
in Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598, 604-
05 (2001). Even in that situation, this court and other circuits
have recognized that the Supreme Court’s definition of
“prevailing party” in Buckhannon is only presumptive and that
“some good reason” may compel the court to construe the term
differently in a different statute. 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., 349 F.3d at 475 (7th Cir. 2003).
Thus, while the Court in Casey reasoned that construing the
phrase “attorney’s fees” in § 1988 to include fees for experts’
services would render superfluous the statutory language in the
34 statutes explicitly shifting both attorney’s fees and expert
fees, see 499 U.S. at 92, it did so in the context of defining the
ordinary meaning of the term “attorney’s fees,” recognizing in
footnote 5 the possibility that Congress could depart from the
ordinary meaning of the term by defining the statutory phrase as
6
a term of art. Moreover, while the Court in Casey took pains to
demonstrate that the term “attorney’s fees” had a “clearly
accepted meaning in both legislative and judicial practice” at the
time § 1988 was enacted, id. at 98, it offered only a conclusory
response to the dissent’s position that fees for experts’ services
were part of “costs.” Id. at 87 n.3. Finally, while the Court in
Casey warned that legislative history could not change the
unambiguous ordinary meaning of a statutory phrase, see id. at
98, that statement was based on the Court’s observation that, in
enacting § 1988, Congress intentionally “chose . . . to enact
more restrictive language” than that in the 34 statutes that
explicitly shift both attorney’s fees and expert fees, id. at 99.
The Conference Report indicates, as footnote 5 acknowledges,
that Congress made a different choice in enacting the fee-
shifting provision of the IDEA: instead of relying on the
ordinary meaning of the term “attorney’s fees,” it chose to
define the phrase “attorney’s fees as part of the costs” as a term
of art to include fees for experts’ services. Thus, while Casey
instructs that legislative history cannot alter the ordinary
meaning of a statutory phrase that the Court has construed,
nothing in Casey precludes reference to legislative history
clearly indicating that Congress intends to depart from the
ordinary meaning of a statutory phrase and to define that phrase
as a term of art.
In disregarding the Conference Report as evidence of
congressional intent, my colleagues reason that if the Supreme
Court in Casey had viewed Congress’s “apparent effort” in
enacting IDEA’s fee-shifting provision to depart from the
ordinary meaning of the term “attorney’s fees” as successful, it
would have listed 35 statutes instead of 34. See Op. at 10. In
listing the 34 statutes, however, the Court did not purport to
catalog every statute that authorizes the shifting of fees for
experts’ services; rather, it identified only the statutes that
“explicitly shift attorney’s fees and expert witness fees,” Casey,
7
499 U.S. at 89 (first emphasis added), saying nothing, other than
in footnote 5, about statutes like the IDEA that implicitly do so
by defining the phrase “attorney’s fees as part of the costs” as a
term of art to include fees for experts’ services. Thus, the fact
that the IDEA is not included in the list of statutes that explicitly
shift both attorney’s fees and expert witness fees does not
indicate that the Court viewed Congress’s “apparent effort” to
depart from the ordinary meaning of “attorney’s fees” as
unsuccessful. Nor does footnote 5 itself indicate that the
“apparent effort” was a failure. While the word “apparent” can
mean “ostensible rather than actual,” suggesting that the effort
was unsuccessful, it can also mean “capable of being easily
understood,” or “obvious,” suggesting that the effort was
successful. See RA N D O M HOUSE W EBSTER’S COLLEGE
DICTIONARY 64-65 (1999). Thus, in concluding that the Court
in Casey viewed the “apparent effort” as a failure, my
colleagues read too much into footnote 5.
My colleagues also read too much into Crawford Fitting,
essentially adopting the overreading by the Seventh and Eighth
Circuits in T.D. and Neosho. See Op. at 6. While the Eighth
Circuit acknowledged in Neosho that the phrase “attorney’s fees
as part of the costs” in the IDEA “assumes, by its construction,
that costs include something more than attorney’s fees,” 315
F.3d at 1031 (quoting Pazik v. Gateway Reg. Sch. Dist., 130 F.
Supp. 2d 217, 220 (D. Mass. 2001)) (internal quotation marks
omitted), it concluded based on Crawford Fitting that “[a]bsent
a specific definition of costs,” the recovery of expert fees is
limited by 28 U.S.C. §§ 1821 and 1920, id. Noting that the
“plain language” of the IDEA’s fee-shifting provision does not
explicitly authorize the shifting of fees for experts’ services in
excess of the limits set in 28 U.S.C. §§ 1821 and 1920, the
Eighth Circuit concluded that the “apparent effort” to shift fees
for experts’ services in the Conference Report was
“unsuccessful” because it was not the kind of “explicit statutory
8
authority” required by Crawford Fitting. Id. at 1032. Adopting
the Eighth Circuit’s reasoning, the Seventh Circuit in T.D., 349
F.3d at 481-82, agreed.
The Supreme Court held in Crawford Fitting that a court
may not shift expert witness fees in excess of the amounts
authorized in 28 U.S.C. §§ 1821 and 1920 “absent contract or
explicit statutory authority to the contrary.” 482 U.S. at 439. As
the separate opinions of Justice Blackmun and Justice Marshall
indicate, the Court in Crawford Fitting did not reach the
question whether § 1988, or any other statute, authorized the
shifting of expert witness fees. See id. at 445 (Blackmun, J.,
concurring); id. at 446 n.1 (Marshall, J., dissenting). In that
case, involving the antitrust laws, the district court invoked no
specific statute in shifting expert witness fees, instead relying
solely on its general discretion to award costs under Rule 54(d)
of the Federal Rules of Civil Procedure. See id. at 438-39.
Thus, in the context of the Crawford Fitting decision, the phrase
“explicit statutory authority” refers not to explicit statutory
language, but to specific statutory authority apart from the
court’s general discretion to shift costs under a procedural rule.
See id. Indeed, the Court emphasized the necessity of “plain
evidence of congressional intent to supercede” the limits set in
28 U.S.C. §§ 1821 and 1920. Id. at 445. While it is true that the
Court indicated that explicit statutory text would serve as plain
evidence of congressional intent to shift expert witness fees, it
did not state that statutory text was the only acceptable evidence
of congressional intent. Rather, the Court stated:
We will not lightly infer that Congress has repealed §§
1920 and 1821, either through Rule 54(d) or any other
provision not referring explicitly to witness fees. As
always, “‘[w]here there is no clear intention otherwise,
a specific statute will not be controlled or nullified by
a general one, regardless of the priority of enactment.’”
9
Id. (alteration and emphasis in original) (quoting Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 (1976)). By stating that
it would not lightly infer authority to shift expert witness fees
absent an explicit statutory provision, the Court acknowledged
that there may be certain circumstances in which it would infer
such authority based on plain evidence of clear congressional
intent. Because this court treats conference reports as strong
evidence of congressional intent, see Moore, 907 F.2d at 176,
and because the Conference Report accompanying the IDEA’s
fee-shifting provision provides plain evidence that Congress
clearly intended for the statutory phrase “attorney’s fees as part
of the costs” to authorize the shifting of fees for experts’
services, that statutory phrase provides the “explicit statutory
authority” required by Crawford Fitting.
Accordingly, I would reverse and vacate the order of the
district court denying appellants an award of fees for experts’
services in excess of the amounts set in 28 U.S.C. §§ 1821 and
1920, and I respectfully dissent.