Blackman v. Dist. of D.C.
| Decision Date | 28 January 2011 |
| Docket Number | No. 10–7019.,10–7019. |
| Citation | 633 F.3d 1088 |
| Parties | Mikeisha BLACKMAN, by her next friend Mary Ann Blackman, et al., Appelleesv.DISTRICT OF COLUMBIA, A Municipal Corporation, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Columbia (No. 1:97–cv–01629).Stacy L. Anderson, Assistant Attorney General, argued the cause for appellants. With her on the briefs were Peter J. Nickles, Attorney General, Office of the Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General. Robert C. Utiger, Attorney, entered an appearance.Shannen W. Coffin argued the cause for appellees. With him on the brief were Ira A. Burnim, Lindsey B. Lang, and Angela L. Lipscomb.Before: SENTELLE, Chief Judge, BROWN, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Chief Judge SENTELLE filed an opinion announcing the judgment of the Court.BROWN, Circuit Judge, and WILLIAMS, Senior Circuit Judge, each filed opinions concurring in the result.SENTELLE, Chief Judge:
The District of Columbia appeals from an attorneys' fee award pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA). The District contends, as it did in the district court, that the amount of the fee award ($1,454,030.22) unlawfully exceeds the statutory fee cap of $4000. The district court held that the statutory fee cap of $4,000 was not applicable to a class action as a whole, but instead limited fees to $4,000 for each individual student in the class. For the reasons set forth below, we agree and affirm the judgment of the district court.
Background
This appeal marks the latest—hopefully, the last or near last—chapter in the saga stretching back at least forty years of families with disabled children seeking free appropriate public education from the District of Columbia with frequent repair to administrative and judicial remedy. The history goes back at least to Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C.1972). Since Mills, the controversy has evolved through both individual and class actions, most recently in two consolidated class actions now before the court. Because the present appeal concerns only the discrete question of the propriety of the fee award, we will not rehash the extended substantive litigation.
In furtherance of the objectives of the IDEA, Congress has provided for the award of attorneys' fees to prevailing parents of children with disabilities. Specifically:
(i) IN GENERAL—In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs—
(I) to a prevailing party who is the parent of a child with a disability.
20 U.S.C. § 1415(i)(3)(B). In many of the numerous actions against the District of Columbia, the courts awarded attorneys' fees pursuant to the IDEA. Beginning in 1998, concerned about the substantial cost to the District, Congress enacted a rider to the FY 1999 annual appropriations act for the District of Columbia instituting the first of a series of attempts at capping the fees awarded. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, § 130, Pub.L. No. 105–277, 112 Stat. 2681, 2681–138 to 2681–139 (1998). That first fee cap limited attorneys' fee awards in actions against the District of Columbia Public Schools under the IDEA to the rate paid to appointed counsel representing indigent criminal defendants in the District of Columbia. The fee cap was continued in FY 2000 and FY 2001 without significant change. Although Congress made further changes, the enactment pertinent to this action came in legislation enacted for FY 2003 and subsequent years which departed from the formula tying the awards to rates for appointed criminal counsel and instead set a flat $4000 figure as the limitation for “the fees of an attorney who represents a party in an action ... under the Individuals with Disabilities Education Act....” 1 2006 District of Columbia Appropriations Act § 122(a)(1); Pub.L. No. 109–115, 119 Stat. 2396, 2519 (2005), cont'd in effect, Revised Continuing Appropriations Resolution, § 101(a)(9), Pub.L. No. 110–5, 121 Stat. 8, 9 (2007).
Although the fee cap was lifted for proceedings initiated after the effective date of the 2009 appropriations act, the current litigation spans the period of the effectiveness of the cap legislation and is not affected by the termination of fee cap requirements. Therefore, the question before us depends upon construction of the fee cap legislation.
Plaintiffs initiated the Blackman class action litigation in July of 1997, and the case was certified as a class action in October of that year. It was subsequently consolidated with another class action, Jones v. District of Columbia, in May of 1998. In June of 1998, the district court granted summary judgment in plaintiffs' favor in both consolidated actions, a ruling that the District never challenged. Although that summary judgment terminated the liability issues in plaintiffs' favor, the litigation continued through years of negotiation of the remedy phase, which finally produced a consent decree in 2006. While the parties were able to reach consent with respect to the remedy, the question of attorneys' fees remained in dispute.
The District did not contest the claim of plaintiffs' counsel that attorneys' fees were in order under the IDEA, but vigorously disputed the amount of the award. The continuing fee dispute involved two separate fee petitions. The first petition sought attorneys' fees for the nine-year period from the start of the lawsuit through July 26, 2006. The parties agreed that an uncapped computation of the awardable fees for this period would amount to $1,820,000. The District, however, contended that the $4000 statutory fee cap applied. The plaintiffs contended, and the district court held, that the fee cap did not limit fees payable by the District to $4,000 for the entire class action. That is, the statute by its terms applied to the “fees of an attorney who represents a party in an action....” 2006 District of Columbia Appropriations Act § 122(a)(1) (emphasis added). Therefore, the district court ruled that the statute did not govern the fees of attorneys representing multiple members of a class rather than a single party and that plaintiffs' counsel would be entitled to reasonable attorneys' fees “so long as the District's payment of such fees does not exceed $4000 per plaintiff class member.” Petties v. District of Columbia, 538 F.Supp.2d 88, 96–97 (D.D.C.2008) (“ 2008 Fee Cap Decision ”). The District did not appeal the fee award.
The second of the two fee petitions gives rise to the present appeal. In March of 2009, plaintiffs' class counsel petitioned for attorneys' fees of $1,938,239.70 for monitoring and compliance work from July 26, 2006, when the consent decree was presented to the court, through December 31, 2008. During the ensuing dispute over the amount of the fee and an exchange of legal arguments, including a surreply by the District, the District did not raise any argument regarding the fee cap. Nor did it raise the issue in a hearing on the fee petition on September 16, 2009. Finally, the District raised the fee cap issue in a supplemental opposition to plaintiffs' request for fees on October 27, 2009, arguing that the $4000 limitation applied to the class action.
On January 4, 2010, the district court entered an order awarding counsel fees in the amount of $1,454,032.22. Blackman v. D.C., 677 F.Supp.2d 169, 180 (D.D.C.2010) (“ 2010 Fee Award Decision ”). The District filed the present appeal from that order.
Analysis
The District's appeal is based entirely on its construction of the fee cap statute, which it contends caps the awardable fees in this class action at $4000. Plaintiff-appellees respond that the cap is inapplicable to class actions but governs only the fees of an attorney representing a single party in an action against the District. Before reaching the question of statutory interpretation, we first consider briefly two other issues raised by appellees which they contend preclude the adjudication of the District's argument.
First, appellees contend that the District's argument is barred by the law of the case. Appellees contend that the district court's adoption of their interpretation of the fee cap statute as not applying to class actions in the 2008 Fee Cap Decision, which was not appealed by the District, decides the question. We note that the 2010 order under review did not use the phrase “law of the case,” but did seem to invoke it by stating, “the Court has already considered this argument and rejected it.” 2010 Fee Award Decision, 677 F.Supp.2d at 180. Arguably then, the principle of consistency underlying the law of the case doctrine could be held to preclude the District's argument in the present case. See, e.g., Arizona v. California, 460 U.S. 605, 619, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (). However, the district court did not simply rely on its prior ruling as establishing controlling law of the case, but rather reiterated its prior reasoning in explaining that “[d]efendants have given the Court no reason to change its earlier ruling, and it will not do so.” 677 F.Supp.2d at 180. Upon de novo review, we reach a similar conclusion on the appropriate construction of the fee cap statute.
Secondly, appellees implicitly argue in their briefing of the law-of-the-case theory that the District did not properly preserve this fee cap issue in the district court and that we should therefore treat the argument as abandoned or forfeited. We are reluctant to treat as forfeited a...
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