Kattan by Thomas v. District of Columbia
| Decision Date | 30 June 1993 |
| Docket Number | Nos. 92-7011 and 92-7012,s. 92-7011 and 92-7012 |
| Citation | 995 F.2d 274,301 U.S.App. D.C. 374 |
| Parties | , 26 Fed.R.Serv.3d 376, 83 Ed. Law Rep. 982, 2 A.D.D. 293 Sarah KATTAN, By Her Parents and Next Friends Susan J. THOMAS and Joseph Kattan, et al., Appellees and Cross-Appellants, v. DISTRICT OF COLUMBIA, et al., Appellants and Cross-Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Donna M. Murasky, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for appellants/cross-appellees.
Patricia D. Douglass, Washington, DC, for appellees/cross-appellants.
Before MIKVA, Chief Judge; D.H. GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
Appellants Sarah Kattan and her parents prevailed in a suit against the District of Columbia under the Education for All Handicapped Children Act. 20 U.S.C. §§ 1400-1485. They subsequently applied to the district court for attorneys' fees based on the fee-shifting provision of the Handicapped Children's Protection Act. 20 U.S.C. § 1415(e)(4)(B). They requested fees for the services provided by their attorney, Ms. Patricia Douglass, as well as those provided by Mr. Kattan himself, a lawyer who served as co-counsel to Ms. Douglass. The District of Columbia did not question Mr. Kattan's entitlement to fees, and, approximately three years later, the district court issued a fee award which reflected the labors of both Mr. Kattan and Ms. Douglass.
In the period between the Kattans' fee request and the district court's award, the Supreme Court decided Kay v. Ehrler, --- U.S. ----, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991), in which it held that an attorney representing himself in a civil rights action was not eligible for attorneys' fees. Two weeks after the district court issued the fee award, the District of Columbia filed a motion in district court pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, requesting that the court eliminate the fees for Mr. Kattan's services, in light of Kay v. Ehrler. The district court rejected this motion.
The District of Columbia appeals the district court's award of fees for Mr. Kattan, arguing that Kay v. Ehrler compels a contrary result. In a cross-appeal, the Kattans challenge the district court's decision to award fees for Ms. Douglass at a rate of $125 per hour, instead of the $150 per hour that the Kattans requested. For the reasons explained below, we uphold the district court's fee award in all respects.
Mr. Joseph Kattan and Ms. Susan J. Thomas, the parents of Sarah Kattan, filed a suit on Sarah's behalf in district court against the District of Columbia. The Kattans alleged that the District had placed Sarah, a disabled child, in a school that was inappropriate under the Education for All Handicapped Children Act ("EHA"), 20 U.S.C. §§ 1400-1485. Initially, Mr. Kattan, an attorney, represented his family. Later, at the urging of the district court, he secured Ms. Patricia Douglass as co-counsel.
The district court ultimately held for the Kattans, on August 9, 1988. It determined that Sarah would not receive all of the services guaranteed to her by the EHA at the school to which the District had assigned her, and it ordered the District to place her at a private school at public expense. Soon thereafter, on October 11, 1988, the Kattans filed an application for attorneys' fees for both Mr. Kattan and Ms. Douglass, under the relevant provision of the Handicapped Children's Protection Act ("HCPA"), 20 U.S.C. § 1415(e)(4)(B) () The District promptly filed an opposition to the application in which it argued that the amounts requested were too high. The District did not, however, contest the right of an attorney representing himself and his child to receive a fee award under the statute.
It was not until nearly three years later, on October 17, 1991, that the district court finally entered an order awarding fees of $38,000 to Ms. Douglass and $43,050 to Mr. Kattan. In the interim, on April 16, 1991, the Supreme Court had decided Kay v. Ehrler, in which the Court ruled that attorneys' fees may not be awarded to attorneys representing themselves in civil rights actions under the fee provision of 42 U.S.C. § 1988 ().
On October 31, 1991, the District of Columbia filed a motion in the district court, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, to alter or amend the October 17 order awarding attorneys' fees. In the motion, the District contended, for the first time, that a pro se litigant who is also a lawyer is not eligible for attorney's fees under the HCPA. The District argued that the Supreme Court's reasoning in Kay v. Ehrler, as to 42 U.S.C. § 1988, required the district court to reverse its decision to award attorney's fees to Mr. Kattan under the analogous fee provision of the HCPA. The district court, however, denied the motion on December 11, 1991, holding that the District of Columbia had waived the issue of Mr. Kattan's entitlement to fees by not raising it before the district court awarded fees on October 17, 1991.
The District of Columbia appeals the district court's orders of October 17 and December 11, 1991, insofar as they award attorney's fees to Appellees for time expended on the case by Mr. Kattan. The Kattans, in turn, issue a cross-appeal against the October 17 order to the extent that it limits attorney's fees for Ms. Douglass' services to the rate of $125 per hour, instead of the requested $150 per hour.
The HCPA provides, "In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of costs to the parents or guardian of a handicapped child or youth who is the prevailing party." 20 U.S.C. § 1415(e)(4)(B). The District asserts that, in light of Kay v. Ehrler, an attorney representing himself is not eligible for a fee award under the HCPA. We do not find it necessary to consider this issue. We agree with the district court that the District of Columbia waived its argument against the availability of fee awards to pro se litigants by failing to raise it in 1988 in its original opposition to the Kattans' motion for fees.
The District of Columbia claims that the district court erred by rejecting its Rule 59(e) motion to alter or amend the judgment awarding fees to Mr. Kattan. In that motion, the District asserted that Kay v. Ehrler represented a change of law that it could not reasonably have anticipated, and that the Supreme Court decision required the district court to retract its award of fees for Mr. Kattan's services. The district court held that Kay was not an unanticipated change in the law and that the District had therefore waived its argument against Mr. Kattan's entitlement to attorney's fees by not raising it before judgment.
We affirm the district court's finding of a waiver. In analogous circumstances, this Court has recognized that a losing party may not use a Rule 59 motion to raise new issues that could have been raised previously.
Ordinarily Rule 59 motions for either a new trial or a rehearing are not granted by the District Court where they are used by a losing party to request the trial judge to reopen proceedings in order to consider a new defensive theory which could have been raised during the original proceedings.
Grumman Aircraft Engineering Corp. v. Renegotiation Board, 482 F.2d 710, 711 (D.C.Cir.1973), overruled on different grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975). See also Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986) ().
In 1988, when it opposed the Kattans' application for attorneys' fees, the District of Columbia could have proffered a legitimate argument that such fees were not available to pro se litigants under the HCPA. Although the Supreme Court did not decide Kay until 1991, there was no reason in 1988 for the District of Columbia to assume that this Circuit had conclusively confirmed the availability of a fee award to a pro se litigant in an EHA suit or other civil rights case.
At the time, the only binding precedent in our Circuit on the issue of fee awards to lawyers representing themselves related to the fee-shifting provision of the Freedom of Information Act ("FOIA"). Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C.Cir.1977). That decision held that attorneys acting pro se could receive fees under FOIA. Id. at 1366. However, much of the Court's reasoning in that decision related specifically to the "policy considerations underlying FOIA." Id. Consequently, the District of Columbia had no basis to believe that Cuneo settled the HCPA question. If the District wished to claim that Mr. Kattan was ineligible for attorney's fees under the HCPA, it should have attempted to distinguish Cuneo from the present case in the district court. Such an argument would have been far from frivolous.
Indeed, in 1984, similarly situated litigants, the defendants in a civil rights action, argued, despite this Circuit's decision in Cuneo, that a lawyer representing himself was not entitled to attorney's fees under ...
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