United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2007 Decided January 23, 2007
No. 05-7183
ELIZABETH T. JESTER, NEXT FRIEND OF R.B.,
APPELLEE
v.
THE GOVERNMENT OF THE DISTRICT OF COLUMBIA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01886)
William J. Earl, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellant. With him on the brief were Robert J. Spagnoletti,
Attorney General at the time the brief was filed, Todd S. Kim,
Solicitor General, and Edward E. Schwab, Deputy Solicitor
General.
Elizabeth T. Jester, appearing pro se, argued the cause and
filed the brief for appellee.
Before: SENTELLE and RANDOLPH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The Individuals with
Disabilities Education Act (IDEA) authorizes district judges to
award attorney’s fees to a “prevailing party” who is the parent
of a disabled child, or in some circumstances, who is a state or
local educational agency. 20 U.S.C. § 1415(i)(3)(B). The
District of Columbia Appropriations Act of 2005, Pub. L. No.
108-335, 118 Stat. 1322, 1344 (2004), limits the amount of
attorney’s fees the District of Columbia may pay to private
parties in such cases to $4,000 per “action.” Actions under the
IDEA begin with an administrative proceeding, after which any
party adversely affected may seek judicial review in district
court. See 20 U.S.C. § 1415(i)(1), (2). The question in this
appeal is whether the district court action is part of the same
“action” as the administrative proceeding for purposes of the
fee-shifting provision.
Elizabeth Jester represented minor child R.B. in
proceedings seeking to vindicate his rights under the IDEA. The
District of Columbia Public Schools acceded to most of R.B.’s
special education requests at the administrative hearing. R.B.
filed suit in the district court, seeking judicial review of the
denial of his remaining requests. In the meantime, the District
paid Jester $4,094.80 for attorney’s fees and costs expended in
connection with the administrative proceeding. The district
court ruled in R.B.’s favor on his remaining requests and, in
response to Jester’s motion, ordered the District of Columbia to
pay an additional $9,606.13 in fees and costs associated with the
district court proceedings. The District of Columbia argues that
the order violates the $4,000 cap in the Appropriations Act.
The district court relied on a decision we have since
reversed. See Mem. Order, Nov. 15, 2005, at *3-4 (citing
Kaseman v. District of Columbia, 355 F. Supp. 2d 205 (D.D.C.
3
2005), rev’d 444 F.3d 637 (D.C. Cir. 2006)). Kaseman
presented the question whether the administrative hearing and
later district court litigation over fee-shifting – so-called fees-
on-fees litigation – comprised the same action for purposes of
the IDEA and the Appropriations Act fee-cap. Although “[a] fee
request is . . . not a direct appeal of a decision made by the
agency at the administrative hearing, as it does not call into
question the child’s evaluation or placement,” we concluded
that, because litigation over fees “arises out of the same
controversy and depends entirely on the administrative hearing
for its existence,” fees-on-fees litigation is part of the same
action as the IDEA administrative hearing. Kaseman, 444 F.3d
at 642. If an administrative hearing and ancillary fee litigation
are one action, an administrative proceeding and the judicial
proceeding that follows must also be one action. The judicial
aspect of the action is a continuation of the same controversy,
although the administrative process may have refined the issues.
If the parent wins in district court after losing in the
administrative hearing, the parent is eligible to recover
attorney’s fees and costs expended in litigating the controversy
from beginning to end. See, e.g., Moore v. District of Columbia,
907 F. 2d 165 (D.C. Cir. 1990) (en banc); Kaseman, 444 F. 3d
at 642. If the parent loses in district court after winning at the
administrative phase, the parent would not be a prevailing party
and would not be eligible for an award of fees. To accept
Jester’s two-action proposal would mean that in the first
situation just mentioned, the parent could not recover fees from
the administrative stage even though the parent prevailed in
court, and that in the second situation, the parent could recover
fees from the administrative stage, even though the parent lost
in court. That is senseless.
Our holding that the administrative hearing and the judicial
review comprised a unitary action for purposes of the fee-
shifting provision means that, under current law, Jester cannot
4
recover more than $4,000 in fees for the entire case,
administrative and judicial. In Calloway v. District of
Columbia, 216 F.3d 1, 9-10 (D.C. Cir. 2000), we held that the
district court may award the full amount of attorney’s fees, but
the District cannot pay a fee award beyond the limit set by the
cap. In this case, the District proposed an order that fulfilled
Calloway’s holding by requiring the District to “pay Plaintiff’s
counsel that much of the award as is permitted by [the
Appropriations Act].” Such an order properly reflects the law:
it requires the District to make timely payment of all fees
awarded, up to the maximum allowed by the fee cap, and leaves
a record of the full amount of fees due to plaintiff. The district
court order awarding an additional $9,606.13 and mandating
payment within thirty days is vacated and the case is remanded
to the district court.
The cap in the Appropriations Act applies only to attorney’s
fees, not costs, as the District conceded in the district court.
This is doubtless why the District paid Jester $4,094.80 at the
end of the administrative stage. Although this exceeded the cap,
some part of the payment presumably represented costs. On
remand Jester may thus be able to collect an additional amount
of attorney’s fees for the judicial proceedings, plus additional
costs incurred. We leave the precise calculations to the
judgment of the district court.
So ordered.