United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2007 Decided February 1, 2008
No. 06-7200
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
APPELLEE
v.
CAROLYN JEPPSEN AND
M.J., BY HER PARENT AND NEXT FRIEND, CAROLYN JEPPSEN,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01309)
Paul S. Dalton argued the cause and filed the briefs for
appellants. William E. Houston entered an appearance.
Mary T. Connelly, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellee. With her on the brief were Linda J. Singer,
Attorney General at the time the brief was filed, Todd S. Kim,
Solicitor General, and Edward E. Schwab, Deputy Solicitor
General.
Before: GINSBURG, Chief Judge, and ROGERS and BROWN,
Circuit Judges.
2
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The district court dismissed as
moot the District of Columbia’s suit against Carolyn Jeppsen
and denied her application for attorneys’ fees for want of
jurisdiction. We hold she was eligible for attorneys’ fees as the
“prevailing party” within the meaning of the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
I. Background
Jeppsen’s daughter, M.J., has a hearing disability on
account of which she attended a private school at public expense
pursuant to the IDEA. In 2003 the District of Columbia Public
Schools initiated a program for the hearing impaired and in the
fall of 2004 sought to move M.J. into the public school system.
Jeppsen petitioned for a “due process hearing,” as provided in
20 U.S.C. § 1415(f), to contest the move. When the hearing
officer ruled that the District may not move M.J. to a public
school, the District sought review by filing this suit against
Jeppsen in the district court. See 20 U.S.C. § 1415(i)(2)
(according right of action in federal court to persons “aggrieved”
by IDEA administrative proceeding). The complaint sought
declaratory relief, “reasonable costs and expenses, including
attorneys’ fees,” and “any other relief that this Court deems
just.”
In the fall of 2005, during the pendency of this action, the
District again sought to move M.J. into the public school
system. In January 2006 Jeppsen received another due process
hearing, in the course of which the parties entered into a
settlement agreement that the hearing officer incorporated into
an order in favor of Jeppsen.
3
Jeppsen then moved to dismiss the instant action on the
ground that the court could give the District no meaningful
relief. The District had agreed to pay for M.J. to remain in
private school during the 2005-06 school year, and Jeppsen
argued the District’s case was moot with respect to the prior
school year, which had ended, and premature with respect to the
next school year, by which M.J.’s needs may have changed.
Jeppsen also sought attorneys’ fees as the “prevailing party”
under the IDEA. The District opposed Jeppsen’s motion for
dismissal, arguing the case was not moot with regard to the
2004-05 academic year because its complaint was broad enough
for it to claim reimbursement of the tuition the District had paid
for that year and the dispute was capable of repetition.
The district court, holding the IDEA does not authorize a
school district to recover tuition or other expenses from a parent,
concluded “there is no ‘effectual relief’ available to plaintiff”
and dismissed the case as moot. 468 F. Supp. 2d 107, 111-12
(2006). The court then held it lacked jurisdiction to award
attorneys’ fees to Jeppsen because it had dismissed the case for
want of jurisdiction. Id. at 112-13.
II. Analysis
Jeppsen argues she is eligible for attorneys’ fees because,
having moved successfully to dismiss the case against her, she
was the “prevailing party” in the district court. The District of
Columbia first defends the district court’s view that it lacked
jurisdiction to award attorneys’ fees because it had dismissed the
action as moot. Alternatively, the District argues that under
Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 532 U.S. 598
(2001), a defendant who obtains a dismissal not based upon the
merits of the case has not “prevailed” within the meaning of the
IDEA. We address both propositions de novo. Trudeau v. FTC,
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456 F.3d 178, 183 (D.C. Cir. 2006) (subject matter jurisdiction
of district court); Edmonds v. FBI, 417 F.3d 1319, 1322 (D.C.
Cir. 2005) (whether a “prevailing party”).
A. Jurisdiction of the District Court
Citing cases that hold a plaintiff’s interest in attorneys’ fees
ordinarily does not confer Article III standing, e.g., Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 480 (1990); Moseley v. Bd. of
Educ., 483 F.3d 689, 694 (10th Cir. 2007), the District argues
the district court did not have Article III jurisdiction to award
fees to Jeppsen in this case, which is moot as to the merits and
therefore not within the jurisdiction of the court. The cases upon
which the District relies, however, support only a narrower
proposition: Article III requires that the requested remedy
redress the “injury in fact” of which a plaintiff complains, see
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);
when intervening events have mooted the plaintiff’s underlying
claim, the plaintiff’s continuing interest in attorneys’ fees does
not support her continued standing to pursue the underlying
claim. Lewis, 494 U.S. at 480; see also Liu v. INS, 274 F.3d
533, 536 (D.C. Cir. 2001).
In addition to its constitutional argument, the District argues
the court lacks statutory subject matter jurisdiction to award
fees. The District points to Keene Corp. v. Cass, 908 F.2d 293,
298 (1990), in which the Eighth Circuit held a district court may
not award attorneys’ fees to a defendant who obtains the
dismissal for want of jurisdiction of an action under 42 U.S.C.
§ 1983, on the ground that § 1988, the applicable fee-shifting
provision, “does not by its terms confer subject matter jurisdic-
tion upon federal courts.” We note the circuits are divided over
whether a district court may award attorneys’ fees to the
defendant in a case over which the court lacks subject matter
jurisdiction. Compare Primax Recoveries, Inc. v. Gunter, 433
5
F.3d 515, 520 (6th Cir. 2006) (“court without subject-matter
jurisdiction over an ERISA action lacks the authority to award
attorney’s fees”), Branson v. Nott, 62 F.3d 287, 293 (9th Cir.
1995), and W.G. ex rel. D.G. v. Senatore, 18 F.3d 60, 64-65 (2d
Cir. 1994), with United States ex rel. Grynberg v. Praxair, Inc.,
389 F.3d 1038, 1055-58 (10th Cir. 2004), and Citizens for a
Better Env’t v. Steel Co., 230 F.3d 923, 927-28 (7th Cir. 2000).
See also Wendt v. Leonard, 431 F.3d 410, 414 (4th Cir. 2005)
(finding no need to address this issue). As we explain in the
next section, however, this case gives us no occasion to decide
whether a defendant who obtains a dismissal for want of
jurisdiction may be awarded attorneys’ fees absent a statute
conferring subject matter jurisdiction over her fee petition.
B. “Prevailing Party” Status
The District relies upon Buckhannon, 532 U.S. 598, for the
proposition that a party does not “prevail” unless it succeeds
upon the merits of the case. In Buckhannon the Supreme Court
rejected the “catalyst theory,” according to which a plaintiff
prevailed if its lawsuit brought about the desired change in the
defendant’s conduct without the court ordering the defendant to
change its ways -- that is, without what the Supreme Court
described as a “judicially sanctioned change in the legal
relationship of the parties.” Id. at 605. Prior to Buckhannon we
had held a defendant prevailed when it obtained a dismissal for
improper venue. Noxell Corp. v. Firehouse No. 1 Bar-B-Que
Rest., 771 F.2d 521, 525 (D.C. Cir. 1985) (defendant “achieved
an enduring victory” in that plaintiff “is forever barred from
reinstituting the action in the District of Columbia”); see also
Moten v. Bricklayers, Masons & Plasterers Int’l Union, 543
F.2d 224, 239 (D.C. Cir. 1976) (per curiam) (appellee who
secures dismissal for want of jurisdiction of appeal by intervenor
is “prevailing party” under 42 U.S.C. § 2000e-5(k)). In the
District’s view, Noxell does not survive Buckhannon.
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Under Buckhannon it is clear that a plaintiff “prevails” only
upon obtaining a judicial remedy that vindicates its claim of
right. See Select Milk Producers, Inc. v. Johanns, 400 F.3d 939,
948 (D.C. Cir. 2005) (plaintiff whose “claim was fully vindi-
cated by the court-ordered” preliminary injunction, although not
a final determination on merits, is “prevailing party” under
Buckhannon). On the other hand, a defendant might be as much
rewarded by a dispositive order that forever forecloses the suit
on a procedural or remedial ground as by a favorable judgment
on the merits. See Dozier v. Ford Motor Co., 702 F.2d 1189,
1191 (D.C. Cir. 1983) (res judicata precludes relitigating issue
whether amount in controversy exceeds minimum required for
jurisdiction under 28 U.S.C. § 1332). A ruling on a jurisdic-
tional ground, that the action fails either in law or in fact, might
give the defendant all it could receive from a judgment on the
merits. Be that as it may, this court has not addressed whether,
in light of Buckhannon, a defendant “prevails” when the case
against it is dismissed for want of jurisdiction.
Prior to Buckhannon, the courts of appeals had divided on
the issue whether a defendant “prevails” upon obtaining a
judicial order dismissing the plaintiff’s case for want of jurisdic-
tion. Compare Steel Co., 230 F.3d at 929-30 (“when a dismissal
for want of jurisdiction forecloses the plaintiff’s claim, the
defendant is the ‘prevailing party’” because such a dismissal is
“an entitlement not to have any change in legal relations”), with
Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 183 n.15 (3d
Cir. 1999) (contra), and Keene Corp., 908 F.2d at 298. Within
the Ninth Circuit, compare Elks National Foundation v. Weber,
942 F.2d 1480, 1485 (1991) (defendant may “prevail” on
jurisdictional ground), with Branson, 62 F.3d at 293 (contra).
Since Buckhannon, two courts of appeals have held that a
defendant “prevails” only if it succeeds on the merits.
Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 164-65
(1st Cir. 2007); Dattner v. Conagra Foods, Inc., 458 F.3d 98,
7
101-02 (2d Cir. 2006). The Tenth Circuit, on the other hand,
adopted the reasoning of the Seventh Circuit in Steel Co.
without citing Buckhannon, see Grynberg, 389 F.3d at 1056-58,
and Steel Co., like Buckhannon, relied upon Texas State
Teachers Ass’n v. Garland Independent School District, 489
U.S. 782 (1989), in deciding whether a party “prevails.” Steel
Co. held the defendant had “prevailed” because it obtained a
judicial order resulting in a “material alteration of the legal
relationship of the parties,” 230 F.3d at 929; Buckhannon held
that a plaintiff does not prevail even though its action has caused
the defendant to change its primary conduct, because the
plaintiff does not thereby obtain a “judicially sanctioned change
in the legal relationship of the parties.” Buckhannon, 532 U.S.
at 604-05.
We need not enter the lists in this apparent conflict among
the circuits in order to resolve the instant dispute. Recall the
district court dismissed this action for want of jurisdiction only
after holding not only that the District’s action for declaratory
relief had become moot when the school year ended but also that
the IDEA did not create a right of action against a parent for the
recovery of tuition or other monies the District had expended for
private schooling. The latter ruling was a judgment on the
merits, not a holding that the court lacked jurisdiction; the court
held the District’s claim failed because it was contrary to the
statute.*
*
Although Jeppsen does not argue the district court dismissed
the District’s case on the merits, she does argue that, because the
district court held the District’s claim for reimbursement failed, she
“prevailed” in the district court; we are bound by neither the district
court’s nor the parties’ characterization of the dismissal. Cf. Fund for
Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 n.4 (D.C.
Cir. 2006) (district court’s characterization of dismissal based upon
APA as jurisdictional “of no consequence,” as court of appeals may
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III. Conclusion
Because the dismissal of the District’s case, properly
understood, was a decision on the merits, it raises no doubt
about the district court’s jurisdiction to award attorneys’ fees.
On the merits, even if Buckhannon overruled Noxell, it is clear
Jeppsen has “prevailed” in an “action or proceeding brought
under” § 1415. 20 U.S.C. § 1415(i)(3)(B)(i)(I). Accordingly we
remand the case to the district court in order that it may decide
whether, “in its discretion,” id., to award Jeppsen attorneys’
fees.
So ordered.
affirm “dismissal under Rule 12(b)(1) ... pursuant to Rule 12(b)(6)”).