Sarah Kattan, by Her Parents and Next Friends Susan J. Thomas and Joseph Kattan, and Cross-Appellants v. District of Columbia, and Cross-Appellees

KATTAN, By Her Next Sarah Parents and Joseph

Friends J. and Susan THOMAS

Kattan, al., Appellees Cross-Ap- et and

pellants, COLUMBIA, OF

DISTRICT al., Appellants and

et

Cross-Appellees. 92-7011 and 92-7012.

Nos. Court of Appeals,

United States of Columbia Circuit.

Argued April 1993. June 1993.

Decided June

As Amended Counsel, Murasky, Corp.

Donna M. Asst. Counsel, Payton, Corp. with whom John Counsel, Reischel, Deputy Corp. Charles L. DC, brief, on the Washington, ap- were pellants/cross-appellees. DC, Douglass, Washington, D.

Patricia appellees/cross-appellants. Judge; Before Chief D.H. MIKVA SENTELLE, Circuit

GINSBURG Judges.

Opinion Judge Chief for the Court filed MIKVA Opinion concurring part dissenting Judge D.H. filed Circuit GINSBURG.

MIKVA, Judge: Chief and her Appellants Sarah Kattan prevailed in a suit for All Handi- under the Education court, §§ 1400- urging Act. 20 U.S.C. district he secured capped Children Ms. of subsequently applied Douglass They dis- Patricia co-counsel. attorneys’ fees based on the trict court for ultimately The district court held for the provision Handicapped of Rattans, August on 1988. It determined Protection Act. 20 U.S.C. Children’s Sarah would not all receive of the servic- 1415(e)(4)(B). They requested fees for guaranteed es to her the EHA at the attorney, provided their Ms. Pa- which, her, assigned school the District had Douglass, provided by as well as those tricia place and it ordered the District to her at a himself, lawyer who served as Mr. Kattan private public expense. school at Soon Douglass. Ms. The District of co-counsel'to thereafter, on October the Rattans question enti- Columbia did not Mr. Rattan’s attorneys’ filed an for fees for fees, and, three approximately tlement n Douglass, both Mr. Kattan and Ms. later, years the district court issued a fee provision the relevant of the Handicapped reflected the labors of both award which Mr. (“HCPA”), Children’s Protection Act Douglass. and Ms. Kattan (“In 1415(e)(4)(B) pro- action or period In the the Rattans’ fee between subsection, ceeding brought under this award, request and the district court’s court, may in its award reasonable discretion, Ehrler, Kay Supreme Court decided attorneys’ part fees as of the costs to the 1435, 113 L.Ed.2d 486 parents guardians handicapped or child (1991), in which it held that an youth prevailing party.”) who is the The civil representing rights himself action promptly District filed an eligible attorneys’ for fees. Two application in argued which it weeks after the district court issued the fee requested high. amounts were too The Dis- award, the District of Columbia filed a mo not, however, right trict did contest the of an 59(e) pursuant tion in district court to Rule attorney representing himself and his child Procedure, Federal Rules of re Civil to receive a award under the statute. questing that the court eliminate the fees for later, nearly years It was not until three services, Kay of Mr. Rattan’s 17, 1991, that on October the district court rejected Ehrler. The district court this mo finally awarding entered order fees of tion. $38,000 $43,050 Douglass to Ms. to Mr. The District of the dis- interim, 16, 1991, April Kattan. In the Kattan, trict court’s award of fees for Mr. Court had Ehrl- decided arguing compels v. Ehrler a con- er, in which the Court ruled that trary cross-appeal, result. In a the Rattans attorneys repre- may not be awarded to challenge the district court’s decision to senting rights themselves in civil actions un- Douglass award fees for Ms. at a rate of $125 §, provision der the fee of 42 U.S.C. per instead of the hour that court, (“[T]he discretion, may in its allow the requested. the Rattans For the reasons ex- party, United other than the plained uphold the district court’s States, a reasonable respects. in all fee award costs.”). I. BACKGROUND 31,1991, of Colum- On October the District court, Joseph pursu- Kattan and Mr. Ms. Susan J. bia filed a motion in the district Thomas, Kattan, of Sarah filed a ant to Rule of the Federal Rules Procedure, suit on Sarah’s behalf in Civil to alter or amend the Octo- awarding attorneys’ al- order' Columbia.- Rattans ber 17 Sarah, motion,, contended, leged placed that the District had the District child, time, inappro- pro. in a school first that a who is also a disabled that was eligible attorney’s fees un- priate under the Education for All Handi- .not (“EHA”), argued capped Children Act 20 U.S.C. der the HCPA. Kattan, reasoning Kay Initially, §§ 1400-1485. Mr. an at- Court’s Later, 1988, torney, represented family. his at the as to U.S.C. argument against Mr. Rattan’s its attor- waived decision to award reverse court to raising entitlement Kattan under ney’s fees to Mr. judgment. it before the HCPA. The however, Decem- the motion on denied finding of a the district court’s We affirm holding that ber circumstances, this In waiver. Rat- the issue of Mr. had waived Columbia may losing party recognized that a Court has raising it by not to fees tan’s entitlement to raise new issues Rule 59 motion not use a on court awarded before the district previously. have been raised that could 17, 1991. October a for either Ordinarily Rule 59 motions the dis- of Columbia The District granted by rehearing not a new trial or Decem- of October trict orders they are used Court where the District 11,1991, they attorney’s insofar ber judge trial to party request to the losing a on the expended time Appellees fees to a in to consider reopen proceedings order turn, Rattans, in by Mr. Kattan. case have theory could new defensive against the cross-appeal October issue a during original proceed- raised been that it limits the extent order to ings. rate of to fees for Ms. Engineering Corp. v. Re Grumman Aircraft requested $150 instead Board, 482 F.2d negotiation per hour. overruled different 1491, 44 grounds, 421 U.S. ANALYSIS II. Deposit Fed. See also Attorney’s (7th to 1260, 1268 Entitlement A Mr. Rattan’s Meyer, Corp. v. 781 F.2d Ins. 59(e) Cir.1986) (Rule Fees be used motion “cannot could, should, arguments which to raise any or “In action provides, The HCPA judgment is made before the have been subsection, brought under proceeding sued.”). discretion, may rea- in its part of attorneys’ fees as costs ap- sonable opposed the Rattans’ when child or handicapped guardian or plication for party.” is the youth who proffered legitimate could have 1415(e)(4)(B). District asserts not available to argument that such fees were that, Kay v. an light in Athough under the pro litigants se HCPA eligible for a representing Kay himself decide until Court did not find it do not HCPA. We award under the in 1988 for the no reason there was agree this issue. We necessary to consider Cir- to that this assume court that the District with the district conclusively the availabili- cuit confirmed had argument against the its Columbia waived litigant in an to a ty of fee award litigants availability of awards rights civil case. EHA or other suit original by failing to raise it time, only binding precedent At motion for opposition to Rattans’ the issue of awards our Circuit on related to lawyers representing themselves that of Columbia claims The District the Freedom of provision of its Rule erred rejecting the district court (“FOIA”). Cuneo v. Rums- Act Information or amend motion to alter (D.C.Cir.1977). That de- feld, 553 F.2d that mo to Mr. Kattan. awarding fees acting pro attorneys se could cision that tion, v. Ehrler held asserted the District at 1366. How- fees under FOIA Id. could not receive of law that it change represented ever, reasoning in that of the Court’s much anticipated, and that reasonably have “policy specifically to the related decision required the Supreme Court underlying Id. Con- FOIA” for Mr. considerations its award court to retract no had sequently, the District of Columbia held The district services. Rattan’s the HCPA that Cuneo settled believe change basis to unanticipated was not to claim question. If the District wished had therefore law and that Alternatively, the District of Colum attorney’s fees ineligible for Mr. Kattan should, HCPA, that we attempted have bia asserts it should by Kay change brought about v. Ehrl present case distinguish Cuneo law er, argument power our under 28 U.S.C. 2106 to Such an use the district court. litigant’s eligibili of a far from review the issue frivolous. been states, That section Su for fees. “The Indeed, similarly litigants, situated preme appellate or other court of action, ar rights in a civil the defendants vacate, re jurisdiction may ... set aside or Cuneo, Circuit’s-decision in gued, despite this decree, any judgment, verse order representing himself was lawfully brought before it for review fees under 42 U.S.C. entitled entry appropriate of such and direct Staats, Lawrence v. may just ... judgment, or order be decree nom, (D.D.C.1984), ajfd Lawrence sub 1375 under the circumstances.” (D.C.Cir.1991) (on Bowsher, 931 F.2d 1579 v. Ehrler). Not grounds stated although The District is correct that we do Lawrence, raise only the defendants did ordinarily pass party on issues that a not agreed with district court this issue —the timely in a fashion failed to raise Judge Flannery, in a well-reasoned them. such we sometimes do review distinguished permit cases explicitly opinion, supervening changes issues when attorneys’ fees in FOIA suits ting se pro occasion, appellant’s favor. On the law the dealing fee-shifting in civil with from cases justified practice appeals have this courts of cases He cited a series rights actions. See, of 28 U.S.C. 2106. partly on basis plain holding circuits from other States, e.g., Pendergrast v. United 416 un fees not tiffs were entitled 776, 19 de 780-81 & n. cert. and he stated: der nied, 926, 89 S.Ct. 23 395 U.S. statutory.analysis and finds the The court (1969). often, appeals More courts seem 243 persuasive, reasoning of these cases primarily on their intrinsic to have relied , that this allow- does believe Circuit’s not just resolution. The to achieve powers litigants ance long ago: noted analysis, changes since the FOIA cases exer- frequently held that We have Congress purpose of FOIA intent of jurisdiction have appellate cise of we our significantly provisions differ and its fee correct error in the power only to §§ purposes of 1988 intent and judgment but to make such under review 2000e-5(k). §] [42 justice requires. case as disposition of the at Id. determining justice re- An in what does case, present the District of Colum- In the to consider quire, Court is bound position were the in a better- than bia was law, has in fact or in which change, either in Lawrence to realize that defendants en- since the was supervened plaintiffs challenge to a tered. succeed, could for the District might 600, 607, Alabama, 55 It is example. itself as an look to Lawrence Patterson (1935). 575, 578, See L.Ed. 1082 flagged S.Ct. 79 noting Kattans also worth 552, 558, also, Helvering, 312 U.S. in their Hormel in a footnote the issue (“[Our (1941) 719, 722, 1037 Nevertheless, 85 L.Ed. to the 61 S.Ct. in its desirability decisions], recognizing the not to application, the District chose while general practice availability of fees and existence question raise the themselves courts confine litigants. agree appellate therefore with pro se We do not nevertheless of Colum- the issues raised court appellate such sight of the fact that eligibili- lose of Mr. the issue Kattan’s bia waived applied not be where timely practice should raising it in for fees miscarriage plain be a clearly did not obvious result manner. States, 395 Leary v. United justice.”); by denying the District’s discretion abuse its 1543-44, 27-28, U.S. motion. Rule (1969); A Byers, United States v. district court’s discretion as to L.Ed.2d 57 (D.C.Cir.1984). proper hourly rate to award counsel 1115-16 n. 740 F.2d upset misapplica should not be clear absent above, cited the inter- In each of the cases legal principles, arbitrary finding, tion of fact legal vening prin- a new decision enunciated unprincipled disregard for the record evi ciple previously unavailable Palmer, King dence. 950 F.2d appellant, practical purposes. The for all (D.C.Cir.1991) (en banc), denied, cert. hand, present the other does not fit U.S. S.Ct. 117 L.Ed.2d 514 above, explained paradigm. As (1992) &-U.S.-, validly of Columbia could dis- problems No such exist puted entitlement to fees before Mr. Rattan’s in the district court’s fee award. The district Kay v. Ehrler. Court decided applied correctly the law and consid circumstances,” “exceptional Absent ered all the setting available evidence in court of is not forum which a disputed rate. legal present can theories that following evidence was available for neglected timely to raise in a manner in the district court to consider when it estab- Director, proceedings below. See Office of (1) lished Ms. rate: an affidavit Compensation Programs, Workers’ Douglass, stating submitted Ms. her stan- Co., Dep’t Labor v. Edward Minte per summarizing dard rate of hour and $150 (D.C.Cir.1986). ex- 736 No such (2) experience; her education and a declara- ceptional exist in this circumstances case. by expert by tion a local retained the Rat- tans, setting ranges gener- out broad of fees Douglass’ B. Ms. Rate ally charged by attorneys with various levels (3) D.C.; experience Washington, in cross-appeal, allege In the Rattans and by reports of similar cases in which the district court abused its discretion fees were Doug- comparable for awarding them fees Ms. awarded for work. per lass’ work at a rate hour. The $125 In its application Rattans’ Douglass’ district court set Ms. rate at this fees, attorneys’ suggested for amount, despite the fact that the Rattans Douglass’ district court award Ms. stating submitted declaration that Ms. hour, per fees at the same rate $75 awarded billing in Douglass’ private normal rate her Columbia, Stebbing v. District another practice per hour. For the was reasons $150 (D.D.C. EHA case. C.A No. 86-2549 March uphold the district court’s stated 1988). court, however, The district re- Douglass’ for Ms. calculation of fees services. per fused to set the rate at because $75 Stebbing litigation very “the was not com- provides that The HCPA “fees awarded hand, plicated.” On the other shall be based on rates subsection court noted that “other decisions community in prevailing in the which the in this circuit have awarded fees of proceeding action or for the kind and arose partner specifical- for time.” The court $125 quality of services furnished.” 20 U.S.C. Columbia, ly referred to Moore v. District of 1415(e)(4)(C). parties agree Both that an (D.D.C.1987), EHA case billing presumptively usual rate is by leading handled EHA firm in the Dis- rate, provided the reasonable that this rate is trict. The district court further noted that prevailing “in line in the with those communi plaintiffs single had failed to cite a case by lawyers of reason for similar greater the fee award was than skill, ably comparable experience, repu and $125. Stenson, tation.” Blum v. 895- 1547 n. “In of the n. relevant case law and parties disagree by Douglass,” affidavits submitted Ms. justified, reasonably the district court was district court determined that whether $125, Douglass’ figure principle, setting expert’s range under this Ms. within for billing attorneys Douglass’ experience, rate at instead of her normal rate with Ms. $125 prevailing community Doug- rate for Ms. $150. fee, setting lass’ services. to second-guess the district Douglass’ professional court considered Ms. as to whether the District of Columbia’s tac- history, complexity of the tics were unreasonable enough to warrant fees awarded in attorneys similar cases to extra fees. experience. Nothing

with similar more was required. Keeping sight of the deference III. CONCLUSION which we owe the district court’s fee determi- Because the District of Columbia did not nations, we find no reason to overturn the contest Mr. Rattan’s entitlement to attor- district court’s decision. ney’s fees in original opposition to the Finally, the Kattans contend that the dis- we find that the trict court failing, erred establishing when District waived the and cannot issue raise it rate, Douglass’ Ms. to take into account a for the first appeal. time on We hold further HCPA, subparagraph 20 U.S.C. that the district justified court was setting 1415(e)(4)(G). That subparagraph pro- Ms. fees at hour. We vides that the court should not reduce attor- uphold therefore the district court’s fee neys’ fees that “unreasonably exceed[] respects. in all hourly rate community It is so ordered. similar services attorneys of reasonably comparable skill, experience, reputa- GINSBURG, D.H. Judge, Circuit tion,” concurring dissenting part: 1415(e)(4)(F)(ii), if it finds that “the State or local agency unreasonably educational The district' court- decided that protracted the final resolution of the action proceeding.” (1991), in which Kattans, Court held that a asserting is not enti that tled attorney’s to an District had fee unreasonably protracted under 42 U.S.C. liti- 1988, § gation, moved for does bar the sanctions award of an attor the Dis- ney’s fee trict to a 1415(e)(4)(G), § under 20 U.S.C. Handi well capped § as under 28 Children’s Protection Act. The 1927 and Rule rea 11 of the Simply son? “plaintiffs’ that Federal Rules of . Civil motion for Procedure. The Kat- EHA, argued based on the tans in their supporting statutory different memoranda scheme from that which dilatory District’s formed the tactics basis of warranted greater Ehrler fee decision.” permitted award than that Kattan v. Dis un- Columbia, (D.D.C. trict der the No. HCPA’s fee-shifting provision. 88-0630 De basic of 11, 1991), slip cember op. at 3. This is the The Kattans contend that the district court proverbial distinction without difference. neglected 1415(e)(4)(G) to § consider their 1, 1991, claim. its order of October fee-shifting The provision of the HCPA is district court expressly rejected the practically 1988, § identical to that of and the , sanctions, motion for stating that “[a]lthough Supreme long required Court has that simi defendants’ conduct this case was from fee-shifting far lar provisions federal statutes exemplary, it does not rise to the level of be See, in the same interpreted way. e.g., necessary conduct imposition for the Independent of sanc- Flight Federation Attendants of tions under Fed.R.Civ.P. Zipes, 754, 2, 28 U.S.C. v. 491 U.S. n. 109 S.Ct. § Although 1927.” 2732, 2, (1989) (“We court did not 2735 n. 105 L.Ed.2d 639 explicitly 1415(e)(4)(G), mention implicit- it stated that statutes’ similar ly rejected the Kattans’ claim under that language is ‘a strong that they indication’ well, provision as since Kattans interpreted alike”); relied on to be Hensley v. Ecker provisions all three hart, the same 424, motion. 433 n. 103 S.Ct. clearly findings (1983) (same court made 1939 n. 76 L.Ed.2d 40 stan to the blameworthiness of the District’s awarding con- dards attorney’s apply un reject duct sufficient to the Kattans’ der all authorizing statutes of fee to a 1415(e)(4)(G) claim. We are in no position “prevailing party”); Northcross Board of (between gued a distinction

Education, HCPA) that the of the that (1973) (similarity FOIA and of the have been court would fee-shifting provi- district statutory wording of two pre- Supreme Court and circuit reject under that the two “strong indication is a sions ”). waived holding that the District passu By pari interpreted cedent. be should statutes eligibility Rattan’s the issue Mr. also stated Ehrler Court The litigant for punishing is in effect court agency ‘attorney5 an assumes “the word at the time have been making what Con likely that it seems relationship, and argument. frivolous an almost attorney-client rela an contemplated gress for an award under predicate objec- as'the tionship District’s Finding no waiver — U.S.-, I at 1437. tion, 1988.”' respectfully dissent I word “attor to think no reason see of an affirming the award § 1988 fee-shifting provision of ney” plaintiff. fee to the has meaning than different has a dis the HCPA. The fee-shifting provision surely “analysis” offers cursory

trict court’s

none. for the of a fee grant district court’s The clearly by Mr. Kattan performed

work however, declines an error. Ct.Op. question, see merits of reach the BECKETT, “the holding that at Captain Stewart W. eligibility of Mr. issue Rattan’s al., Appellants, waived et raising it in the by not for fees dis- Ct.Op. at 8. I timely manner.” in a ASSOCIATION, PILOTS AIR LINE agree. Appellee. no reason Columbia had Court anticipate 1988 to 92-7029. No. circuit, change the law would in Appeals, United States authorized then Circuit. litigant. court was clear contrary, On the 20, 1993. April Argued Rumsfeld, 553 by Cuneo -both ly bound 15, 1993. June Decided held that F.2d 1360 Remanding fees under eligible for Rehearing and Denying Order Act, by the July Information Case Freedom command longstanding Court’s fee-shifting provisions similarly-worded dis distinction alike.

to be treated Staats, Lawrence drew in trict court (D.D.C.1984), between § 1988 ran and that FOIA approach. Court’s

contrary to Bowsher,

See Lawrence “[s]olely” on (D.C.Cir.1991) (affirming deci intervening Supreme Court

the basis Cu which overruled Kay v.

sion in (lauding

neo). Ct.Op. at 277 see But opinion” “a well-reasoned Staats).

Lawrence penalize simply unreasonable

It is ar- failing to

Case Details

Case Name: Sarah Kattan, by Her Parents and Next Friends Susan J. Thomas and Joseph Kattan, and Cross-Appellants v. District of Columbia, and Cross-Appellees

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 6, 1993

Citation: 995 F.2d 274

Docket Number: 92-7011 and 92-7012

Court Abbreviation: D.C. Cir.