The D.C. Circuit, in a short decision, rejected the attempt by DC Attorney General Nickles to obtain attorney’s fees from a plaintiff. Although in a special education (IDEA) case, some of the court’s analysis may be of broader applicability. In particular, a dismissal with prejudice is not necessarily a judicial act that allows for fees under Buckhannon, where the dismissal arises because the agency belatedly complied with its obligations, thereby mooting the lawsuit. The ACLU, as amicus, submitted a brief that was favorably cited by the court.
Some excerpts follow:
District of Columbia v. Straus, et al., No. 09-7051 (Jan. 8, 2010).
Appeal from the United States District Court for the District of Columbia
(No. 1:08-cv-02075-RWR)
Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellant. With him on the briefs were Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.
Roxanne D. Neloms argued the cause for appellees. With her on the brief was Tilman L. Gerald.
Arthur B. Spitzer, Caroline M. Brown, and Roger A. Ford were on the brief for amicus curiae the American Civil Liberties Union of the National Capital Area in support of appellees.
Before: GINSBURG, TATEL, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge:
Relying on the fee-shifting provision contained in the Individuals with Disabilities Education Act (IDEA), the District of Columbia seeks fees from a lawyer who, on behalf of a special needs student, initiated administrative proceedings that were eventually dismissed as moot. The district court denied an award of fees on the ground that the District failed to qualify as a “prevailing party” under the IDEA as defined by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). For the reasons set forth below, we affirm.
. . . .
The District argues that it nonetheless qualifies as a prevailing party because “‘a dismissal with prejudice is deemed an adjudication on the merits for the purposes of res judicata.’” Appellant’s Br. 18 (quoting Anthony v. Marion County General Hosp., 617 F.2d 1164, 1170 (5th Cir. 1980)).
Res judicata effect would certainly qualify as judicial relief where, for example, it protected the prevailing school district from having to pay damages or alter its conduct. See, e.g., Claiborne v. Wisdom, 414 F.3d 715, 719 (7th Cir. 2005) (awarding attorney’s fees to the defendant where the plaintiff voluntarily moved to dismiss the case because she lacked sufficient evidence after her witnesses recanted); see also Jeppsen, 514 F.3d at 1290 (hypothesizing that, in certain circumstances, “[a] ruling on a jurisdictional ground, that the action fails either in law or in fact, might give the defendant all it could receive from a judgment on the merits.”).
But in this case, the hearing officer’s dismissal protected the District from nothing at all because DCPS had already agreed to pay for the requested evaluation—the only issue then before the hearing officer. In other words, the District’s favorable judicial pronouncement was “unaccompanied by judicial relief.” Thomas, 330 F.3d at 493 (internal quotation marks omitted). If the District were considered a prevailing party under these circumstances, then DCPS could ignore its legal obligations until parents sue, voluntarily comply quickly, file for and receive a dismissal with prejudice for mootness, and then recover attorney’s fees from the parents’ lawyers. As amicus explains, such an outcome would deter lawyers from taking IDEA cases, “effectively block[ing] the one enforcement mechanism parents have when an educational agency drags its heels,” and undermining the IDEA’s very purpose. Br. of Amicus Curie ACLU 28; see Moore, 907 F.2d at 166 (finding that the availability of administrative proceedings and the “‘right to be accompanied and advised by counsel’” therein help “guarantee that the policy [of the IDEA to provide FAPEs to children] is faithfully administered” (quoting 20 U.S.C. § 1415(h)).
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