Jane Doe v. Boston Public Schools

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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