William GOLDRING, Parent and Next Friend of Lawrence Anderson, a Minor, et al., Appellants v. DISTRICT OF COLUMBIA, a Municipal Corporation and Clifford B. Janey, Officially as Superintendent, D.C. Public Schools, Appellees.
No. 04-7116.
United States Court of Appeals, District of Columbia Circuit.
Argued March 17, 2005. Decided July 26, 2005.
416 F.3d 70
The judgment of the district court is Affirmed.
Michael J. Eig argued the cause for the appellants. Haylie M. Iseman was on brief.
Donna M. Murasky, Assistant Attorney General, District of Columbia argued the cause for the appellees. Robert J. Spagnoletti, Attorney General, District of Columbia and Edward E. Schwab, Deputy Attorney General, District of Columbia, were on brief.
Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.
Opinion for the court filed by Circuit Judge KAREN LECRAFT HENDERSON.
Dissenting opinion filed by Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON, Circuit Judge.
After prevailing in administrative proceedings against the District of Columbia and District of Columbia Public Schools (collectively, the District) under the
I.
To “ensure that all children with disabilities have available to them a free appropriate public education designed to meet their unique needs,”
Exercising their statutory rights under the IDEA, the appellant parents complained to the District about their children‘s educational placements. Following due process hearings, they requested the District to reimburse their fees and costs pursuant to the IDEA‘s fee-shifting statute. With respect to four of the children,2 the District did not dispute that their parents were the prevailing parties and paid a portion of their requested fees. The parents and children sued to recover the balance.
The district court granted partial summary judgment in their favor. See Goldring, No. 02-CV-1761, slip op. at 10. Relevant to this appeal, it concluded that they could not recover the entirety of their expert fees, “but instead must be limited to no more than what
The appellants sought reconsideration but were no more successful. See Goldring v. Dist. of Columbia, No. 02-CV-1761, slip op. at 1-10 (D.D.C. July 21, 2004), reprinted in J.A. at 113-20. The district court rejected both of their arguments—that is, that our decision in Moore v. Dist. of Columbia, 907 F.2d 165 (D.C.Cir.1990), held that a prevailing party is entitled to an award of expert fees under the IDEA and that the IDEA‘s legislative history demonstrates that the Congress intended a party prevailing under the IDEA to recover expert fees. See Goldring, No. 02-CV-1761, slip op. at 3-8.
II.
The question whether the IDEA‘s fee-shifting provision—section 1415—enables a prevailing party to recover expert fees as part of his costs is one of first impression in our Circuit and one not free of controversy in others. To date four of our sister circuits have treated this issue and divided evenly into opposing camps, two holding an IDEA prevailing party cannot recover expert fees, see T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 481-82 (7th Cir.2003); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1031-33 (8th Cir.2003), two holding he can, see Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332, 337-39 (2d Cir.2005); Arons v. N.J. Bd. of Educ., 842 F.2d 58, 62 (3d Cir.1988). The district courts have likewise failed to reach a consensus on the question, compare, e.g., BD v. DeBuono, 177 F.Supp.2d 201, 207-08 (S.D.N.Y.2001) (allowing recovery of expert fees); Mr. J. v. Bd. of Educ., 98 F.Supp.2d 226, 242-43 (D.Conn.2000) (same); Field v. Haddonfield Bd. of Educ., 769 F.Supp. 1313, 1323 (D.N.J.1991) (same), with Eirschele v. Craven County Bd. of Educ., 7 F.Supp.2d 655, 659-60 (E.D.N.C.1998) (refusing recovery of expert fees); Cynthia K. v. Bd. of Educ. of Lincoln-Way High Sch. Dist., 1996 WL 164381, at *2 (N.D.Ill., April 1, 1996) (same), including those within our Circuit, compare, e.g., Czarniewy v. Dist. of Columbia, No. 02-CV-1496, slip op. at 4-5, 2005 WL 692081 (D.D.C. Mar. 25, 2005) (allowing recovery of expert fees); Bailey v. Dist. of Columbia, 839 F.Supp. 888, 892 (D.D.C.1993) (same); Aranow v. Dist. of Columbia, 791 F.Supp. 318, 318 (D.D.C.1992) (same), with George v. Dist. of Columbia, No. 02-CV-1656, mem. at 2 (D.D.C. Mar. 8, 2004) (refusing recovery of expert fees); Goldring, No. 02-CV-1761, slip op. at 9 (same). The correct decision does not seem to us to be difficult to reach, for the Supreme Court has stated in fairly unequivocal terms that language nearly identical to that used in section 1415 is unambiguous and, more to the point, does not allow a prevailing party to shift his expert fees. Accordingly, today we join the Seventh and Eighth Circuits in holding that a prevailing party under the IDEA cannot recover expert fees.
The IDEA‘s fee-shifting provision provides that “[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs ... to a prevailing party who is the parent of a child with a disability.”
In Casey, the Court addressed whether an earlier version of
But it is not the end for the appellants. Finding the statute‘s text unhelpful, they seek refuge in its history. Legislative history is a traditional tool of statutory construction to divine congressional intent, they argue, and, when considered here, it reveals an intent to allow a prevailing party to shift expert fees under section 1415. The appellants point to a single sentence in the House Conference Report on the Handicapped Children‘s Protection Act (Conference Report), which amended the IDEA:
The conferees intend that the term “attorney‘s fees as part of the costs” include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian‘s case in the action or proceeding, as well as traditional costs incurred in the course of litigating the case.
H.R. CONF. REP. No. 99-687, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 1789, 1808. While two of our sister circuits have looked to this language in construing section 1415, see Murphy, 402 F.3d at 336-37; Arons, 842 F.2d at 62, we believe recourse to it is simply unwarranted.
While “[r]eference to statutory design and pertinent legislative history may often shed new light on congressional intent, notwithstanding statutory language that appears superficially clear,” Natural Res. Def. Council v. Browner, 57 F.3d 1122, 1127 (D.C.Cir.1995) (internal quotation marks omitted); accord, e.g., Sierra Club v. EPA, 353 F.3d 976, 988 (D.C.Cir.2004); Consumer Elec. Ass‘n v. FCC, 347 F.3d 291, 298 (D.C.Cir.2003), we do not confront “superficially clear” language here. In Casey, the Supreme Court said that the expression “reasonable attorneys’ fees as part of the costs” is clear, not just superficially so. See 499 U.S. at 98-99 (rejecting argument that section 1988‘s purpose must overcome ordinary meaning of statutory terms because “[w]here [statutory text] contains a phrase that is unambiguous—that has a clearly accepted meaning in both legislative and judicial practice—we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process“). This is good enough for us for “when the statute‘s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (internal quotation
Continuing down this path, the appellants maintain that the Conference Report gains additional relevance in light of the Supreme Court‘s apparent reliance on it in Casey. The appellants are not alone in this view: In reaching a holding contrary to our own, the Second Circuit found the Casey Court‘s characterization of this snippet of legislative history as “an apparent effort to depart from ordinary meaning and to define a term of art,” 499 U.S. at 91 n. 5, to support its construction of section 1415. See Murphy, 402 F.3d at 336-38. “Apparent” or no, we conclude, as have two other circuits, see T.D., 349 F.3d at 482; Neosho R-V Sch. Dist., 315 F.3d at 1032, that the Conference Report‘s “effort” is a failure. A sentence in a conference report cannot rewrite unambiguous statutory text, particularly text with a Supreme Court-tested and -approved meaning. The Casey holding declares that “[w]here [the statute] contains a phrase that is unambiguous—that has a clearly accepted meaning in both legislative and judicial practice—we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process.” 499 U.S. at 99-100 (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)).
Nor are we convinced to reach a different result by the appellants’ other arguments derived from the Casey Court‘s footnote reference to the Conference Report. First, we are unpersuaded by the fact that the Justice who included the footnote is a reputed textualist. See Murphy, 402 F.3d at 337 (“To those who would question our resort to legislative history, we observe that it was Justice Scalia, a noted skeptic of the use of legislative history, who authored Casey‘s dicta about the apparent effort by Congress to depart from the ordinary meaning of the term ‘costs’ in the IDEA.“). If the Court had found this one sentence of legislative history compelling, it would have included section 1415 in its catalogue of statutes autho
Second, we cannot agree with the Second Circuit that “it [is] reasonable to infer that Congress, on the basis of the Supreme Court‘s decision in Casey, saw no need to amend the IDEA because the Court had recognized that, in enacting the IDEA, Congress sufficiently indicated in the Conference Committee Report that prevailing parties could recover expert fees under the Act.” Murphy, 402 F.3d at 337. While the Supreme Court has instructed us that “[t]he fact that inaction may not always provide crystalline revelation ... should not obscure the fact that it may be probative to varying degrees,” Johnson v. Transp. Agency of Santa Clara Cty., 480 U.S. 616, 629 n. 7 (1987); accord United States v. Delgado-Garcia, 374 F.3d 1337, 1359 (D.C.Cir.2004), we doubt that the Congress‘s inaction with respect to section 1415 following Casey is probative at all. More to the point, given that the Casey Court merely labeled the Conference Report an “apparent effort” by the congressional committee and did not number section 1415 among the statutes authorizing the recovery of attorney‘s fees and expert fees, we are unwilling to infer from the Congress‘s failure after Casey to amend section 1415 that the Congress believed that the Supreme Court had considered the text to have been altered by the Conference Report. Indeed, given that the version of section 1988 construed in Casey is nearly identical to section 1415, the more reasonable inference to draw from the fact that, following Casey, the Congress amended section 1988 but not section 1415 is that the Congress had no intention of allowing recovery of expert fees under the IDEA. Before the Court handed down Casey, the Congress had a proven track record demonstrating its ability to shift expert fees when it desired and, following the Court‘s decision, the Congress was—and is—unquestionably on notice of the precise language required to do so. The former inferential path, in any event, leads to where reason goes to die.
Moving from Supreme Court precedent to our own, the appellants cite our decision in Moore v. Dist. of Columbia, 907 F.2d 165 (D.C.Cir.1990) (en banc), cert. denied, 498 U.S. 998 (1990), as well as the procedural history leading up to it, for the proposition that we have long allowed an IDEA prevailing party to recover expert fees. In Moore, however, we addressed only the issue “whether the Handicapped Children‘s Protection Act ... authorizes a court to award attorney fees to a party who has prevailed in an administrative proceeding under the Education of the Handicapped Act,” id., and “conclude[d] that both the text and the legislative history of HCPA evidence congressional intent to authorize recovery of fees by a parent who prevails in EHA administrative proceedings.” Id. at 176. Our holding in Moore did not consider whether a prevailing party may shift his expert fees, as appellants themselves readily concede. See Appellants’ Br. at 29 (“Th[e] [expert fees] issue simply was never addressed.“).
The appellants’ last argument is that, given the critical role of professional opinion in assessing the educational needs of a child with disabilities, the upshot of denying an IDEA prevailing party expert fees will be that parents seeking to contest a school district‘s educational placement may face a severe informational disadvantage vis-a-vis the school district. While we are not unsympathetic to the challenges that these and other parents often confront in securing an appropriate free education for their children with disabilities, this line of argument—based on considerations of
Finally, a word or two about our colleague‘s dissent. Of course, the Congress may adopt a term of art in a fee-shifting statute. See Casey, 499 U.S. at 91 n. 5. Of course, a conference report offers ” ‘persuasive evidence of congressional intent’ after statutory text itself.” Moore, 907 F.2d at 175 (quoting & citing Demby v. Schweiker, 671 F.2d 507, 510 (D.C.Cir.1981)) (emphasis added). But the words of the statute do indeed enjoy pride of place: Our “inquiry into the Congress‘s intent proceeds, as it must, from ‘the fundamental canon that statutory interpretation begins with the language of the statute itself.’ ” Am. Fed‘n of Labor & Congress of Indus. Orgs. v. Fed. Elec. Comm‘n, 333 F.3d 168, 180 (D.C.Cir.2003) (Henderson, J., concurring in judgment) (quoting & citing Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999)). Thus job one is to read the statute, read the statute, read the statute. See Am. Fed‘n of Labor & Congress of Indus. Orgs., 333 F.3d at 180 (Henderson, J., concurring in judgment) (citing HENRY J. FRIENDLY, BENCHMARKS 202 (1967) (“(1) Read the statute; (2) read the statute; (3) read the statute!” (quoting Justice Frankfurter‘s “threefold imperative to law students“))). Moreover, we do not read section 1415 in a precedential vacuum. Despite the dissent‘s characterization of Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 439 (1987), as allowing a court to “impl[y]” or “infer” “explicit statutory authority” to shift expert fees, Dissent at 7, 9, the Supreme Court held otherwise in Casey in deciding “whether the term ‘attorney‘s fee’ in § 1988 provides the ‘explicit statutory authority’ required by Crawford Fitting” to shift expert fees. Casey, 499 U.S. at 87. It held that the term “unambiguous[ly]” does not; the term “has a clearly accepted meaning in both legislative and judicial practice,” a meaning not “expanded or contracted by the statements of individual legislatures or committees.” Id. at 98-99, 111 S.Ct. 1138 (emphasis added). Accordingly, the dissent‘s observation that “nothing in Casey precludes reference to legislative history clearly indicating that Congress intends to depart from the ordinary meaning of a statutory phrase and to define that phrase as a term of art” proves nothing with respect to section 1415. Dissent at 6.
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.
ROGERS, Circuit Judge, dissenting.
In W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991), the Supreme Court construed the “ordinary meaning” of the term “attorney‘s fees” in
The conferees intend that the term “attorneys’ fees as part of the costs” include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian‘s case in the action or proceeding, as well as traditional costs incurred in the course of litigating a case.
Id. In footnote 5 of the Casey opinion, the Supreme Court explained that this statement did not provide evidence of the “ordinary meaning” of the term “attorney‘s fees” in
Sitting en banc, this court in Moore relied on a conference report as evidence of congressional intent to authorize recovery of attorney‘s fees incurred in IDEA administrative proceedings. See Moore, 907 F.2d at 175. In so doing, the court recognized that a conference report ” ‘is the most persuasive evidence of congressional intent’ after statutory text itself.” Id. (quoting Demby v. Schweiker, 671 F.2d 507, 510 (D.C.Cir.1981)). Similarly, in relying on the Conference Report accompanying the IDEA‘s fee-shifting provision as evidence of congressional intent to allow the shifting of fees for experts’ services in IDEA proceedings, the Second Circuit in Murphy explained why a joint explanatory statement in a conference report is more persuasive as evidence of legislative intent than a committee report prepared before either the House or the Senate has passed a bill. See Murphy, 402 F.3d at 337. Because a conference report “represents the final statement of terms agreed to by both houses, next to the statute itself it is the most persuasive evidence of congressional intent.” Id. (quoting Disabled in Action of Metro. N.Y. v. Hammons, 202 F.3d 110, 124 (2d Cir.2000)). Although my colleagues observe that Congress does not vote on the joint explanatory statement, see Op. at 75 n. 3 (citing Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236 (D.C.Cir.2003)), it is nonetheless true that in voting on the statutory language agreed to by the House and Senate conferees,
While, as my colleagues point out, Op. at 74-75, the Supreme Court has held that there is no occasion to resort to legislative history when the statutory language is clear, the Court has also held that the ” ‘strong presumption’ that the plain language of the statute expresses congressional intent [can be] rebutted ... when a contrary legislative intent is clearly expressed,” such as a “conclusive statement in the legislative history.” Ardestani v. INS, 502 U.S. 129, 135-36 (1991) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)) (internal citation omitted). Indeed, because the ultimate purpose of statutory construction is to effectuate congressional intent, cf. Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001), a statutory phrase is to be given its ordinary meaning only “[i]n the absence of persuasive reasons to the contrary.” Banks v. Chicago Grain Trimmers Ass‘n, 390 U.S. 459, 465 (1968); Nat‘l Insulation Transp. Comm. v. ICC, 683 F.2d 533, 537 (D.C.Cir.1982). Although the Court in Casey found no persuasive evidence of congressional intent to depart from the ordinary meaning of the term “attorney‘s fees” in
Thus, while the Court in Casey reasoned that construing the phrase “attorney‘s fees” in
In disregarding the Conference Report as evidence of congressional intent, my colleagues reason that if the Supreme Court in Casey had viewed Congress‘s “apparent effort” in enacting IDEA‘s fee-shifting provision to depart from the ordinary meaning of the term “attorney‘s fees” as successful, it would have listed 35 statutes instead of 34. See Op. at 75-76. In listing the 34 statutes, however, the Court did not purport to catalog every statute that authorizes the shifting of fees for experts’ services; rather, it identified only the statutes that ”explicitly shift attorney‘s fees and expert witness fees,” Casey, 499 U.S. at 89 (first emphasis added), saying nothing, other than in footnote 5, about statutes like the IDEA that implicitly do so by defining the phrase “attorney‘s fees as part of the costs” as a term of art to include fees for experts’ services. Thus, the fact that the IDEA is not included in the list of statutes that explicitly shift both attorney‘s fees and expert witness fees does not indicate that the Court viewed Congress‘s “apparent effort” to depart from the ordinary meaning of “attorney‘s fees” as unsuccessful. Nor does footnote 5 itself indicate that the “apparent effort” was a failure. While the word “apparent” can mean “ostensible rather than actual,” suggesting that the effort was unsuccessful, it can also mean “capable of being easily understood,” or “obvious,” suggesting that the effort was successful. See RANDOM HOUSE WEBSTER‘S COLLEGE DICTIONARY 64-65 (1999). Thus, in concluding that the Court in Casey viewed the “apparent effort” as a failure, my colleagues read too much into footnote 5.
My colleagues also read too much into Crawford Fitting, essentially adopting the overreading by the Seventh and Eighth Circuits in T.D. and Neosho. See Op. at 73. While the Eighth Circuit acknowledged in Neosho that the phrase “attorney‘s fees as part of the costs” in the IDEA “assumes, by its construction, that costs include
The Supreme Court held in Crawford Fitting that a court may not shift expert witness fees in excess of the amounts authorized in
We will not lightly infer that Congress has repealed §§ 1920 and 1821, either through Rule 54(d) or any other provision not referring explicitly to witness fees. As always, “[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.”
Id. (alteration and emphasis in original) (quoting Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976)). By stating that it would not lightly infer authority to shift expert witness fees absent an explicit statutory provision, the Court acknowledged that there may be certain circumstances in which it would infer such authority based on plain evidence of clear congressional intent. Because this court treats conference reports as strong evidence of congressional intent, see Moore, 907 F.2d at 176, and because the Conference Report accompanying the IDEA‘s fee-shifting provision provides plain evidence that Congress clearly intended for the statutory phrase “attorney‘s fees as part of the costs” to authorize the shifting of fees for experts’ services, that statutory phrase provides the “explicit statutory authority” required by Crawford Fitting.
Accordingly, I would reverse and vacate the order of the district court denying appellants an award of fees for experts’ services in excess of the amounts set in