United States Court of Appeals
For the First Circuit
No. 03-1886
JANE DOE,
Plaintiff, Appellant,
v.
BOSTON PUBLIC SCHOOLS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
S. Stephen Rosenfeld, with whom Richard Ames, Law Offices of
Richard Ames, and Mala M. Rafik, were on brief for appellant.
Alissa Ocasio, with whom Merita Hopkins, was on brief for
appellees.
Eileen L. Ordover, on brief for Center for Law and Education,
amicus curiae.
February 6, 2004
STAHL, Senior Circuit Judge. Plaintiff-appellant Jane
Doe sued defendant-appellee City of Boston Public Schools
("Boston") pursuant to the Individuals with Disabilities Education
Act ("IDEA"), 20 U.S.C. § 1415, et seq., seeking placement in a
private therapeutic day school. After negotiations, Boston offered
Doe the placement she sought. When Doe requested attorneys' fees,
the district court dismissed her complaint on the ground that she
was not a "prevailing party" within the meaning of Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532
U.S. 598 (2001). We affirm the district court's dismissal.
I. BACKGROUND
The facts of this case are not disputed. Doe, a
nineteen-year-old Boston resident, suffers from a severe mental
disability. Accordingly, she is entitled to special education
services under the IDEA. Pursuant to the IDEA, Boston was
obligated to draft an Individualized Education Program ("IEP") for
Doe and propose an appropriate placement. 20 U.S.C. §§ 1412(a)(4),
1415(b)(1), 1414(d).
Initially, Doe received an education at McKinley
Vocational High School, a public school in Boston. On December 11,
2001, while Doe was hospitalized, Doe's father requested that she
be placed at the Department of Mental Health's ("DMH") Lighthouse
program at the Children's Community Support Collaborative, a
private residential school also located in Boston. On January 31,
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2002, in accordance with the statutory requirement, Doe and Boston
conducted a Team Meeting to discuss her situation. Boston rejected
Doe's request for the private placement and offered to continue her
schooling at McKinley. Concerned that McKinley did not meet her
needs, Doe reiterated her request to be placed in a twenty-four-
hour residential program. Boston responded with an offer of
providing educational services at McKinley and providing living
services at another DMH facility. Doe rejected this proposal.
On July 2, 2002, the parties unsuccessfully attempted to
mediate their disputes before the Bureau of Special Education
Appeals ("BSEA"). See id. § 1415(e). On July 22, 2002, Doe filed
for a hearing before the BSEA and requested placement at a small
therapeutic day school. See id. § 1415(f). On August 14, 2002,
the parties unsuccessfully attempted to reach an informal
resolution at a pre-hearing conference.
The case was scheduled for a BSEA hearing on October 9,
2002. Just before the hearing was to begin, Boston presented to
Doe an IEP that provided for placement at Bay Cove Academy, a
private, therapeutic day-school program, for the current school
year. Doe accepted the offer and requested that the placement be
read into the record and signed by the BSEA hearing officer. The
hearing officer declined, stating that it was against his usual
practice.
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On December 10, 2002, Doe filed a motion seeking to
affirm the placement as a final judgment and to direct
implementation of the agreed-upon IEP. On January 29, 2003, the
hearing officer denied the motion, and on February 4, Doe's IDEA
claims were dismissed.
On March 4, 2003, Doe filed a complaint in the district
court seeking attorneys' fees. In a published opinion, the
district court granted Boston's motion to dismiss the complaint.
Doe v. Boston Pub. Schs., 264 F. Supp. 2d 65 (D. Mass. 2003). The
court relied upon Buckhannon's definition of the term "prevailing
party," in which the Supreme Court held that under certain federal
fee-shifting statutes, attorneys' fees could be awarded only to
parties who received a final judgment on the merits or obtained a
court-ordered consent decree. Doe, 264 F. Supp. 2d at 67-71
(citing Buckhannon, 532 U.S. at 604-05). The district court found
that Doe fit neither of the categories that would make her a
"prevailing party," and was thus ineligible for fees under the fee-
shifting provisions of the IDEA. Id. at 72.
II. DISCUSSION
The central question we must decide is whether Buckhannon
applies to the IDEA's definition of "prevailing party," thus
precluding recovery of attorneys' fees following a private
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settlement.1 This is a question of first impression in our
circuit. See Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321
F.3d 9, 15 n.4 (1st Cir. 2003) (expressly leaving open the question
of whether Buckhannon applies to the IDEA). We review this
question of law de novo. Id. at 15; Domegan v. Ponte, 972 F.2d
401, 406 (1st Cir. 1992).
A. The IDEA and HCPA
The IDEA was enacted in 1975 to ensure that disabled
children could receive an appropriate education free of cost. 20
U.S.C. § 1400(d)(1)(A).2 It authorizes students and their parents
to enforce this substantive right by filing suit against school
departments. Id. § 1415(b). In Smith v. Robinson, 468 U.S. 992,
1014 (1984), the Supreme Court held that Congress had not intended
to permit prevailing parties to recover attorneys' fees in IDEA
1
Boston contends that its actions in this case --
specifically, presenting Doe with a signed IEP giving her the
placement she sought -- did not constitute a true "private
settlement agreement." For purposes of this appeal, however, these
actions have sufficient commonality with a more typical settlement
involving a signed agreement resulting from negotiation. Doe's
result followed mediation and an informal conference. It did not
involve a ruling from the BSEA or any court or agency, or any other
form of judicial or administrative involvement. Doe succeeded in
obtaining the specific benefit she sought, i.e., placement in a
private therapeutic day school. See Hensley v. Eckerhart, 461 U.S.
424, 433 (1983) (to be a prevailing party, one must "succeed on any
significant issue . . . which achieves some of the benefits
plaintiffs sought in bringing suit."). Accordingly, we treat the
IEP placement as a settlement, and craft our holding today to apply
generally to private IDEA settlements.
2
The IDEA was originally named the Education of the
Handicapped Act, until renamed in 1990.
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cases. This decision brought a quick response from Congress, with
bills filed almost immediately seeking to amend the statute to add
an express fee-shifting provision.
In 1986, Congress passed the Handicapped Children's
Protection Act ("HCPA"). HCPA was the result of a series of
legislative compromises; what began as a simple fee-shifting clause
mimicking other federal civil rights statutes evolved into a more
complex provision, with multiple restrictions on who could recover
fees, when they could be recovered, and the amount of recovery.
HCPA's basic authorization for fees provides:
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). Several other provisions modify this
authorization. If the relief obtained is equivalent to the school
system's prior settlement offer, no fees are awarded for services
performed after the offer was made:
(i) 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
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(III) the court or administrative hearing
officer finds that the relief finally obtained
by the parents is not more favorable to the
parents than the offer of settlement.
Id. § 1415(i)(3)(D)(i). The exception to this rule applies if the
parents were "substantially justified" in rejecting the offer. Id.
§ 1415(i)(3)(E). Section 1415(i)(3)(D)(ii) provides in relevant
part that attorneys' 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. In addition, HCPA also provides
for a reduction in fees if the court finds that the parents
unnecessarily delayed the final resolution of the proceeding. Id.
§ 1415(f).
In 1997, the IDEA was reauthorized via the Individuals
With Disabilities Education Act Amendments of 1997. Pub. L. No.
105-17, 111 Stat. 37 (1997). The legislation left intact the fee-
shifting provisions set forth supra, but added new limitations on
the recovery of fees for work pertaining to certain IEP team
meetings and mediation activities. Id.
B. The Buckhannon decision and its application to other fee-
shifting statutes
In 2001, fifteen years after HCPA initially was enacted,
the Supreme Court decided Buckhannon, 532 U.S. 598. There, the
plaintiffs sought attorneys' fees pursuant to the Fair Housing
Amendments Act of 1988 (FHAA), 42 U.S.C. § 3601 et seq., and the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et
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seq.3 532 U.S. at 601. The plaintiffs cited the "catalyst theory"
of recovery: because their lawsuit had brought about a voluntary
change in the conduct of the defendant, they were "prevailing
parties" and thus entitled to recover fees. Id.
The Supreme Court rejected the catalyst theory as a basis
for the fee award. Id. at 610. It held that the term "prevailing
party," as used in the FHAA, ADA and "numerous" other federal
statutes, meant a party who has received a judgment on the merits
or a court-ordered consent decree.4 Id. at 603-04. The Court
listed several statutes, in addition to the FHAA and ADA, that
employed the term "prevailing party," and noted that the term
appears in numerous other federal statutes as well. Id. at 602-03.
It did not specifically reference the IDEA.
3
The FHAA provides, in relevant part: "The court, in its
discretion, may allow the prevailing party . . . a reasonable
attorney's fee and costs." 42 U.S.C. § 3613. The ADA's fee-
shifting provision is nearly identical: "The court . . . in its
discretion, may allow the prevailing party . . . a reasonable
attorney's fee, including litigation expenses, and costs." Id. §
12205.
4
We take no position on whether forms of judicial imprimatur
other than a judgment on the merits or a court-ordered consent
decree may suffice to ground an award of attorneys' fees. Some
circuits have treated Buckhannon's reference to judgments and
consent decrees as mere examples of the types of judicial action
that could convey prevailing party status. See Roberson v.
Giuliani, 346 F.3d 75, 81 (2d Cir. 2003), and cases cited. The
Eighth Circuit, by contrast, has read Buckhannon narrowly on this
point. Christina A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir.
2003).
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At the core of the Court's reasoning was the concept of
"judicial imprimatur"; in order to prevail, a party must achieve a
"court-ordered" change in the legal relationship of the parties.
Id. at 604-06. Absent this imprimatur, a federal court may be
unable to retain jurisdiction so it can oversee execution of the
settlement. Id. at 604 n.7. "Our precedents thus counsel 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 (emphasis in original).
Buckhannon's prohibition on catalyst theory-based fee-
shifting applies expansively. See New Eng. Reg'l Council of
Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir. 2002)(applying
Buckhannon to 42 U.S.C. § 1988). As the district court noted, the
principles underlying Buckhannon's holding are broadly stated and
are not statute-specific. Doe, 264 F. Supp. at 72; see also Me.
Sch. Admin. Dist. No. 35, 321 F.3d at 14. The Buckhannon court
used "prevailing party" as a legal term of art (meaning "a party in
whose favor a judgment is rendered") to be interpreted consistently
across fee-shifting statutes. 532 U.S. at 603 (citing Black's Law
Dictionary 1145 (7th ed. 1999)). It also relied on the general
baseline "American Rule" that each party pays its own fees. Id. at
602. Moreover, the Court expressed a preference for avoiding a
"second major litigation" that would frequently ensue from an
application of the catalyst theory, which would involve "analysis
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of the defendant's subjective motivations in changing its conduct."
Id. at 609.
Doe urges that we follow the minority interpretation of
Buckhannon set forth in Barrios v. Calif. Interscholastic Fed'n,
277 F.3d 1128, 1134 n.5 (9th Cir.), cert. denied, 537 U.S. 820
(2002). There, the Ninth Circuit held that Buckhannon permitted
the award of attorneys' fees to an ADA plaintiff who settled
privately. It stated that Buckhannon barred recovery of fees only
by a plaintiff who was the catalyst for legislative change, and
that the Supreme Court's limitation of prevailing party status to
plaintiffs who win judgments or enter consent decrees was merely
dicta. Id. n.5 (citing Buckhannon, 532 U.S. at 604 n.7).
The Barrios court's reading of Buckhannon seems to
contravene the Supreme Court's unambiguous rejection of private
settlement as sufficient grounds for "prevailing party" status:
Private settlements do not entail the judicial
approval and oversight involved in consent
decrees. And federal jurisdiction to enforce
a private contractual settlement will often be
lacking unless the terms of the agreement are
incorporated into the order of dismissal.
532 U.S. at 604 n.7. Accordingly, we decline to adopt the Ninth
Circuit's narrow interpretation. Other circuits considering the
issue have applied Buckhannon as precluding fee awards in private
settlement situations, explicitly or impliedly rejecting Barrios'
interpretation. See, e.g., T.D. v. La Grange Sch. Dist. No. 102,
349 F.3d 469, 476 (7th Cir. 2003); John T. v. Del. County
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Intermediate Unit, 318 F.3d 545, 560-61 (3rd Cir. 2003) ("We will
not follow Barrios's narrow reading of Buckhannon. . . [W]e read
Buckhannon to reject the "catalyst theory" whole hog."); N.Y. State
Fed'n of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine
Comm'n, 272 F.3d 154, 158-59 (2d Cir. 2001).
C. Buckhannon's application to the IDEA
To date, each of the three circuit courts that have
considered the application of Buckhannon to the IDEA have held that
IDEA plaintiffs who achieve their desired result via private
settlement may not be considered "prevailing parties," and thus
cannot recover attorneys' fees under 20 U.S.C. § 1415(i). T.D.,
349 F.3d at 476-78; John T., 318 F.3d at 557; J.C. v. Reg'l Sch.
Dist. 10, 278 F.3d 119, 124 (2d Cir. 2002).
Consistent with our "American Rule," in which parties
bear their own fees in the absence of explicit statutory authority,
Key Tronic Corp. v. United States, 511 U.S. 809, 819 n.13 (1994),
we hold that Buckhannon is presumed to apply generally to all fee-
shifting statutes that use the "prevailing party" terminology,
including the IDEA. See T.D., 349 F.3d at 475. "Because this
provision employs the phrase 'prevailing 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." Me. Sch.
Admin. Dist., 321 F.3d at 14. That presumption may be rebutted,
however, if the statutory text, structure, or legislative history
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indicate that Congress intended to permit prevailing parties to
recover fees where the desired result was achieved through
settlement. T.D., 349 F.3d at 475; see also Tenn. Valley Auth. v.
Hill, 437 U.S. 153, 174 (1978) (examining "language, history and
structure" of legislation to determine Congressional intent). We
consider each of these possibilities in turn.
1. Legislative text and structure
Doe contends that the text and structure of § 1415(i)
suggest that Congress intended "prevailing party" to include
settlement-based fee awards. She maintains that most other fee-
shifting statutes are simply constructed, and that Buckhannon's
holding does not extend to complex provisions such as § 1415(i).
Doe also points out that § 1415(i)(3)(D)(i) explicitly links
settlement to attorneys' fees by providing that under certain
specified circumstances such fees may not be awarded "for services
performed subsequent to the time of a written offer of settlement
to a parent."
We disagree that these features place the IDEA beyond the
ambit of Buckhannon. First, the structural complexity of the
IDEA's fee-shifting provision does not, by itself, change the
meaning of "prevailing party." Although the fee-shifting
provisions in the FHAA and ADA are simple, Buckhannon additionally
referenced the complex fee-shifting provision in the Equal Access
to Justice Act, 28 U.S.C. § 2412, by citing to the appendix in
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Marek v. Chesny, 473 U.S. 1, 49 (1985). 532 U.S. at 603; see also
Brickwood Contractors v. United States, 288 F.3d 1371, 1377 (Fed.
Cir. 2002) (applying Buckhannon to EAJA to reverse award of
attorneys' fees). The Court thus did not appear to intend to limit
its holding to simple fee-shifting provisions.5 While we recognize
that the IDEA's fee-shifting provision is more complex than most,
nothing inherent in its structure indicates legislative support for
preserving the catalyst theory in the IDEA context. Cf. Brickwood,
288 F.3d at 1378 ("there is no basis for distinguishing the term
'prevailing party' in the EAJA from other fee-shifting statutes.")
Second, the limiting exceptions enumerated in section
1415(i)(3) do not indicate that the term "prevailing party" was
intended to have a broader scope than in other fee-shifting
statutes. T.D., 349 F.3d at 476; John T., 318 F.3d at 557.
"[T]hese provisions do not inform anything about the meaning of the
5
Doe also points to the Supreme Court's statement in Smith,
468 U.S. at 1009, that the IDEA was a "comprehensive scheme,"
contending that it thus stands alone from any other federal
statutes. There, however, the Court simply stated that the IDEA
did not create a right enforceable pursuant to § 1983 but rather
could be enforced only through the mechanisms explicitly set forth
in the statute. Id. at 1009-11. Nowhere in that decision did the
Court indicate that the terms of the IDEA should not be construed
consistent with other federal laws. In New Hampshire v. Adams, 159
F.3d 680, 684 (1st Cir. 1998), we stated that when construing the
IDEA's fee-shifting provisions, "cases decided under kindred
federal fee-shifting statutes, such as the Fees Act, 42 U.S.C. §
1988, furnish persuasive authority." In addition, the IDEA's fee-
shifting provision was enacted after Smith, and its legislative
history specifically recommends interpretation consistent with
other fee-shifting statutes. See infra.
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term 'prevailing 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. The reference in section 1415(i)(3)(D)(i) to
attorneys' fees speaks only to settlement offers, not actual
settlements. It does not specify whether the settlement offer is
followed by additional litigation and judgment or by the successful
acceptance of the offer. Thus, nothing in this text plainly
indicates an intent to reimburse fees for work resulting in private
settlements.
2. Legislative history
The legislative history of HCPA presents closer questions
as to whether Congress intended to define "prevailing party" to
include private settlements. The most germane legislative history
available suggests simply that the IDEA's fee provisions are to be
interpreted consistently with Supreme Court law and with other fee-
shifting statutes. Two weeks before HCPA was passed,
Representative Williams read into the record a letter by Senator
Hatch: "The right to reimbursement of reasonable attorneys' fees
provided for in the conference report is exactly the same right
that Congress has extended to other persons protected by fees
statutes – no more and no less." 132 Cong. Rec. 4841 (1986). The
letter went on to state that fees may be awarded to parents
"consistent with applicable Supreme Court decisions interpreting 42
U.S.C. § 1988; including interpretations of such concepts as . . .
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"prevailing" parent. . . See, for example, Hensley v. Eckerhart,
461 U.S. 424 (1983); Marek v. Chesny, [473 U.S. 1 (1985)]." Id.
Hensley concerned attorneys' fees awarded pursuant to 42
U.S.C. § 1988. The Congressional citation to this opinion strongly
suggests an intent that the IDEA be interpreted in a manner
consistent with that and other fee-shifting statutes, and not be
considered sui generis. Other circuits considering a similar but
earlier Congressional statement held that Buckhannon, which
expressly applied to § 1988, applies to the IDEA as well. See
T.D., 349 F.3d at 476; John T., 318 F.3d at 557; J.C., 278 F.3d at
124.6
Several members of Congress filed an amicus curiae brief
in this case, including Senators Kennedy, Harkin and Jeffords and
6
Our sister circuits focus on a Senate Committee Report
produced when Congress added the fee-shifting provision to the
IDEA's predecessor statute, the Education of the Handicapped Act.
See T.D., 349 F.3d at 476; John T., 318 F.3d at 557; J.C., 278 F.3d
at 124. Similar to Representative Williams' testimony, the Senate
Committee on Labor and Human Resources stated that "it is the
committee's intent that the terms 'prevailing party' and
'reasonable' be construed consistently with the U.S. Supreme
Court's decision in Hensley v. Eckerhart, [461 U.S. 424 (1983)]."
S. Rep. No. 99-112, at 13 (1986), reprinted in 1986 U.S.C.C.A.N.
1798, 1803 (footnote omitted).
Doe concedes that the text of Senate Report No. 99-112 is
contrary to her position, but contends that the report pertained to
a bill that never became law. Rather, the version that emerged
from conference was significantly different from the bill discussed
in the Senate Committee. Accordingly, Doe maintains that the other
circuits' analyses of the applicable legislative history are
fatally flawed because of their reliance on Senate Report No.
99-112. We need not grapple with this issue further, as
Representative Williams' statement undeniably pertains to HCPA and
says essentially the same thing as the earlier Senate Report.
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Representatives Kildee, Miller and Owens. They present a detailed
and nuanced argument for reading the legislative history as
supporting a definition of "prevailing party" to include those who
settle privately. After careful review, however, we conclude that
the history is ambiguous as to this question. While a reading of
the history that supports providing attorneys' fees could be teased
out, it is just as susceptible to other interpretations. See,
e.g., 132 Cong. Rec. H4841. "Particularly in view of the 'American
Rule' that attorney's fees will not be awarded absent 'explicit
statutory authority,' [ambiguous] legislative history is clearly
insufficient to alter the accepted meaning of the statutory term
['prevailing party']." Buckhannon, 532 U.S. at 608. In short, the
legislative history cannot supply the clear-cut intent necessary to
overcome Buckhannon's presumption against settlement-based fee
awards. See 131 Cong. Rec. S10,876 (1985); 131 Cong. Rec. 31,372
(1985); 143 Cong. Rec. S435,402 (1997).
For example, Doe first mentions a 1985 statement made by
Senator Hatch in connection with the proposed "Legal Fees Equity
Act," an omnibus bill to limit fee awards against government
defendants: "The requirement of final disposition [is not] intended
to preclude recovery of attorneys' fees where settlement is reached
prior to judgment. Such settlements are generally desirable and so
long as it can be shown that the party has prevailed on the relief
sought, such an award of attorneys' fees may still be obtained."
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131 Cong. Rec. S10,876 (1985). This statement was not made in
reference to HCPA, and the legislation in question was never
enacted. Hence, it is of limited value in determining
Congressional intent as to whether HCPA was intended to cover fees
resulting from private settlements.
Doe also cites a statement made in reference to the House
version of HCPA, H.R. 1523, in 1985. "[I]f a parent brings an
attorney to the informal complaint resolution meeting, and the
school officials and the parents reach a settlement, then according
to H.R. 1523 the school system is liable for the parents'
attorneys' fees." 131 Cong. Rec. 31,372 (1985). The bill that
emerged from conference, however, was far more complex than either
the House or Senate version. This statement, then, carries little
weight in guiding our understanding of what Congress intended in
the version of HCPA that ultimately was enacted. See note 6,
supra.
Another piece of legislative history Doe references is a
statement made by Senator Jeffords during the proceedings for
renewing the IDEA: "If they had a good deal and didn't accept it,
they don't get attorneys' fees." 143 Cong. Rec. S435,402 (1997).
This statement was uttered some ten years after HCPA's enactment,
and seems to be nothing more than a casual restatement of §
1415(i)(3)(D)(i). As we have said, this provision reasonably could
be interpreted as pertaining to settlement offers made before an
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order of judgment, not situations such as this. In sum, Doe has
not pointed to any convincing indicia of Congressional intent to
define "prevailing party" to include those who prevail via private
settlements.
Doe protests that at the time HCPA was enacted in 1986,
the catalyst theory was widely considered a permissible basis for
recovery of attorneys' fees. See, e.g., Maher v. Gagne, 448 U.S.
122, 129 (1980) ("The fact that respondent prevailed through a
settlement rather than through litigation does not weaken her claim
to fees [pursuant to § 1988]."). Fifteen years before Buckhannon,
she contends, Congress would have had to have been prescient to
include in the statutory text or history a clear statement that
attorneys' fees are intended to be recoverable following
settlement.
While perhaps that may be so, the same argument would
extend to any statute adopted prior to Buckhannon, including the
statutes at issue in that case itself. To rely on that argument is
to disregard the Supreme Court's own conclusion in Buckhannon,
which we cannot properly do. Should Congress wish to expressly
ensure that fees are available following private settlements, it
may amend the IDEA accordingly.
3. Policy arguments
Finally, Doe makes two cursory policy-based arguments for
permitting fee awards in IDEA private settlement situations. It is
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far from clear whether, under Buckhannon, we should even consider
such arguments. There, the Court warned:
Given the clear meaning of "prevailing party"
in the fee-shifting statutes, we need not
determine which way . . . various policy
arguments cut. In Alyeska, [421 U.S. at 260],
we said that Congress had not "extended any
roving authority to the Judiciary to allow
counsel fees as costs or otherwise whenever
the courts might deem them warranted." To
disregard the clear legislative language and
the holdings of our prior cases on the basis
of . . . policy arguments would be a similar
assumption of a "roving authority."
532 U.S. at 610; see John T., 318 F.3d at 558 (refusing to consider
arguments predicated on IDEA policies).
In any event, when considered on their merits, neither
policy argument lifts Doe over the presumption created by
Buckhannon. First, Doe contends that we must interpret HCPA so as
to effectuate one of the underlying purposes of the IDEA: the
"prompt resolution of disputes regarding appropriate education for
handicapped children." Spiegler v. Dist. of Columbia, 866 F.2d
461, 467 (D.C. Cir. 1989). This goal, although undeniably
laudable, does not affect our interpretation of the term
"prevailing party." As the Seventh Circuit explained in T.D.:
We recognize the importance and benefit of
quick resolution 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
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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.
349 F.3d at 477 (internal citations omitted).
Doe cites another purpose of the IDEA: to provide a "free
appropriate public education." 20 U.S.C. § 1400(d)(1)(A). If
parents cannot recover attorneys' fees after settling a dispute
with a school district, she argues, then the appropriate public
education is not truly "free." Although this is admittedly a
practical limitation on the right protected by the statute, this is
no less true of other statutes creating or protecting rights that
are unquestionably subject to Buckhannon, and so does not change
the result in this case. The IDEA guarantees the right to a free
education, but "it does not explicitly guarantee the right to
attorney's fees incurred in pursuit of that education. . . 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." T.D., 349 F.3d at 477.
Again, the concern is for Congress to address.
III. CONCLUSION
Consistent with each of the circuit courts that have
considered the application of Buckhannon to the IDEA, we hold that
IDEA plaintiffs who achieve their desired result via private
settlement may not, in the absence of judicial imprimatur, be
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considered "prevailing parties." See T.D., 349 F.3d at 476-78;
John T., 318 F.3d at 557; J.C., 278 F.3d at 124. Hence, Doe cannot
recover attorneys' fees under 20 U.S.C. § 1415(i).
Affirmed.
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