NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rathеr than its quality as precedent, is relevant.
Alexander BARTH, et al., Appellees,
v.
DISTRICT OF COLUMBIA, et al., Appellants.
No. 92-7093.
United States Court of Appeals, District of Columbia Circuit.
Dec. 14, 1993.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties аnd arguments of counsel. After full review of the case, the court is satisfied that appropriate disposition of the appeal does not warrant an opinion. See D.C.Cir.Rule 14(c). For the reasons stated in the accompanying memorandum it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed insofar as it awards the appellees the administrative attorneys' fees originally sought, but that the case be remanded for the elimination from the judgment of any sums attributable to the award of Rule 11 sanctions.
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.
ATTACHMENT
MEMORANDUM
PER CURIAM.
Plaintiffs below sought attorneys' fees for legal work performed at the administrative level in enforcing their rights under the Individuals with Disabilities Education Act (the "IDEA" or the "Act") (formerly known as the Education of the Handicapped Act), 20 U.S.C. Sec. 1400 et seq. See id. at Sec. 1415(e)(4)(B); Moore v. District of Columbia,
The District raises two issues on appeal--the district court's dispоsition of the immunity argument and its award of sanctions. We reject the District's claim to immunity but agree that the award of sanctions was an abuse of discretion.
In addressing the Dellmuth-Train argument we need not resolve whether, if the District were a State, it would enjoy 11th Amendment immunity under Dellmuth with respect to the administrative fees at stake here. The District is not a state, and the second step of the District's argument--a congressionally intended extension of 11th Amendment immunity to the District--seems to us cоmpletely unwarranted. In Train we invalidated on federalism grounds certain air pollution regulations imposed by the Environmental Protection Agency on the "National Capital Region", and, although those grounds were inapplicablе to the District, we did not preserve their theoretically possible rump within the District's borders. Although we noted that the statute treated the District as a state (as here), see Train,
Here the uniformity concerns cut the other way. Congress revealed its intent to expose municipal governments to liability under the IDEA with sufficient clarity for purposes of оrdinary statutory interpretation; as they do not enjoy 11th Amendment immunity, that expression of intent was fully effective. Indeed, Congress revealed an intent to subject even the states to such liability under ordinary standards, see Dellmuth,
The sanctions award was, however, an abuse of discretion. Cooter & Gell v. Hartmarx Corp.,
Hutto and Jenkins are closer matters. Before addressing their potential relevance, we note that the fees here sought tо be recovered were incurred in administrative litigation (1) over reimbursement for educational expenses previously incurred (retroactive relief) and (2) over District funding of future educational expenses (prospectivе relief). Hutto and Jenkins are considerably more pertinent to the second class than to the first.
The two cases hold that courts may award attorneys' fees incurred in litigation in court. We need not here explore their exact reach. On the one hand they include some phrases suggesting that a broad category, "costs", including attorneys' fees where a statute includes them in its definition of recoverable litigation costs, is inherently exempt from the strictures оf the 11th Amendment. See, e.g., Hutto,
As to fees incurred in administrative litigation over prospective funding, Hutto and Jenkins are far more pertinent. Had Congress located the entire litigative process in court, the two cases would have entitled plaintiffs to reсover fees incurred there in seeking prospective relief. Why then, one may well ask, should there not be recovery when Congress has located part of the remedial process in the agencies of the state itself, sеemingly a less intrusive process? On the other hand, recovery in court of fees incurred in an entirely past administrative litigation looks rather like the sort of retroactive relief forbidden by the 11th Amendment. For the reasons stated abovе, we need not resolve that issue, and we will assume that ultimately the resolution would have gone against the District. Certainly one can imagine a brilliant brief tackling these issues, and one can readily concede that the papеrs actually filed by the District do not merit that accolade. Nonetheless, even as to fees incurred with respect to administrative litigation over future funding, plaintiffs' position requires a distinct--though surely not earthshaking--extension of the cases whose omission they now claim rendered the District's brief sanctionable.
Although the circuits evidently are split on the issue of whether counsel must "acknowledge binding adverse precedent", see Matter of Hendrix,
Accordingly, we affirm the judgment insofar as it awards the plaintiffs the administrative attorneys' fees originally sought and remand the case for the elimination from the judgment of any sums attributable to the award of Rule 11 sanctions.
KAREN LECRAFT HENDERSON, Circuit Judge:
I concur in the holding that the District of Columbia (District) does not enjoy eleventh amendment immunity from attorney's fees incurred in administrative proceedings commenced under the Individuals with Disabilities Educatiоn Act. I dissent, however, from the decision to remand on the sanctions issue because in my view the district court's imposition of Rule 11 sanctions did not constitute an abuse of discretion.
The district court imposed Rule 11 sanctions on the District beсause of its failure to cite and distinguish Moore v. District of Columbia,
I agree with the majority's conclusion that Moore is "almost completely irrelevant" inasmuch as the case does not address the issue оf eleventh amendment immunity. Therefore, the District's failure to cite Moore alone would not support the district court's imposition of sanctions. It is the District's failure to cite Hutto and Jenkins that I find more troublesome. The District's argument below сould not prevail unless it succeeded in distinguishing Hutto and Jenkins. In those cases, the Supreme Court held that the eleventh amendment does not bar an award of attorney's fees against a state. At least on their face, then, they stood as a barrier to the District's argument that the eleventh amendment prohibits a court's award of attorney's fees against it when incurred at the administrative proceedings stage. Nevertheless, the District's pleadings and argument below did not includе even a passing mention of the cases.
The majority today excuses the District's failure to cite Hutto and Finney because it finds that the cases could have been distinguished. According to the majority, Hutto and Finney held only that a court's аward of attorney's fees incurred in its own proceedings does not implicate the eleventh amendment; they did not address the relationship between attorney's fees incurred during administrative proceedings and the eleventh amendment. To me, however, the issue is not whether the cases may be distinguished but whether the District attempted to so distinguish them before the district court. Cf. In Matter of Hendrix,
Notes
A separate statement concurring in part and dissenting in part filed by Circuit Judge Henderson