United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2009 Decided January 8, 2010 

No. 09-7051 

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, 

APPELLANT

v. 

JOHN A. STRAUS AND JAMES E. BROWN & ASSOCIATES, PLLC, 

APPELLEES

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. 
2 

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. 

I 

The IDEA guarantees all children with disabilities a free, 

appropriate public education (FAPE). 20 U.S.C. § 

1400(d)(1)(A). Of relevance to this case, the IDEA requires 

school districts to conduct any evaluations necessary to 

develop a child’s individualized education plan (IEP). Id. 

§ 1414(a). 

In June 2008, the IEP team for D.R., a special needs 

student attending the District of Columbia Public Schools 

(DCPS), decided it needed a psychiatric evaluation of D.R. to 

prepare his IEP for the upcoming school year. DCPS agreed 

to complete the evaluation by August 5. When it failed to do 

so, D.R.’s family, represented by appellee John Straus, filed 

an administrative complaint seeking an order requiring DCPS 

to pay for an independent psychiatric evaluation. See 20 

U.S.C. § 1415(b)(6)(A) (authorizing parents to file 

administrative challenges to “any matter relating to . . . 

evaluations”). The parents also sought (1) a declaration that 
3 

the delay in conducting the evaluation denied D.R. a FAPE 

and (2) an award of attorney’s fees, see Moore v. District of 

Columbia, 907 F.2d 165, 167 (D.C. Cir. 1990) (en banc) 

(interpreting the IDEA’s fee-shifting provision to apply in 

administrative proceedings as well as civil actions). Five days 

later, Dr. Richard Nyankori of the DCPS Chancellor’s office 

sent Straus a letter authorizing the independent evaluation. 

That same day, the hearing officer held a prehearing 

conference. Although Straus knew of the Nyankori letter 

authorizing the evaluation, he refused to withdraw the 

complaint. Instead, he demanded a hearing, which the 

hearing officer held several weeks later. At that hearing, 

Straus conceded that the Nyankori letter provided the 

substantive relief his client sought, but argued “there should 

be something with respect to attorney’s fees” for himself. 

Plaintiff’s Renewed Motion for Summary Judgment, Exhibit 

D at 11, District of Columbia v. Straus, 607 F. Supp. 2d 180 

(D.D.C. 2009) (No. 08-cv-2075). 

Three days after the hearing, the officer ruled that the 

Nyankori letter “mooted” the controversy and dismissed the 

case with prejudice. Plaintiff’s Renewed Motion for 

Summary Judgment, Exhibit C at 3, Straus, 607 F. Supp. 2d 

180 (“SHO decision”). Neither party challenged that 

decision. 

Although Straus is no longer pursuing his request for 

fees, the District sued him and his law firm in the United 

States District Court for the District of Columbia seeking an 

award of $1,752.25 to cover the attorney’s fees it claims to 

have expended in the administrative hearing. The District 

argued that it was entitled to fees under the IDEA’s feeshifting provision because it had prevailed in the 

administrative proceedings and because Straus “continued to 

litigate the complaint after it had clearly become groundless.” 
4 

Appellant’s Br. 3; see also 20 U.S.C. § 1415(i)(3)(B)(i)(II) 

(authorizing the award of attorney’s fees when the school 

district is the prevailing party and the parents’ attorney 

litigated frivolously). The district court disagreed, concluding 

that the District does not qualify as a prevailing party because 

it “secure[d] a dismissal for mootness . . . by [its] voluntary 

conduct.” Straus, 607 F. Supp. 2d at 184. The court therefore 

entered summary judgment for Straus. The District appeals, 

and our review is de novo, see District of Columbia v. 

Jeppsen, 514 F.3d 1287, 1289–90 (D.C. Cir. 2008) (reviewing 

a summary judgment determination de novo). 

II 

In the American legal system, litigants generally bear 

their own litigation costs. Congress, however, has enacted a 

number of fee-shifting statutes that alter this rule, including 

most notably the Civil Rights Attorney’s Fees Awards Act of 

1976, 42 U.S.C. § 1988. Buckhannon, 532 U.S. at 602–03 

(listing fee-shifting statutes). Such statutes authorize courts to 

award fees to the “prevailing party.” See id. at 603. Like 

these statutes, the IDEA allows parents who are “prevailing 

part[ies]” to recover attorney’s fees incurred in both 

administrative and judicial proceedings. 20 U.S.C. § 

1415(i)(3)(B)(i)(I); see also Moore, 907 F.2d at 167. Central 

to the issue before us, the IDEA also allows school districts to 

recover fees if they prevail in litigation brought by parents. 

Specifically, subsection II of section 1415(i)(3)(B)(i) 

authorizes awards of attorneys’ fees 

to a prevailing party who is a State educational 

agency or local educational agency against the 

attorney of a parent who files a complaint or 

subsequent cause of action that is frivolous, 

unreasonable, or without foundation, or against 

the attorney of a parent who continued to 
5 

litigate after the litigation clearly became 

frivolous, unreasonable, or without 

foundation[.] 

Id. § 1415(i)(3)(B)(i)(II). 

As the Supreme Court explained in Buckhannon, “the 

term ‘prevailing party’ [is] a legal term of art” that requires 

more than achieving the desired outcome; the party seeking 

fees must also have “been awarded some relief by the court.” 

532 U.S. at 603. In Buckhannon, the Court rejected the socalled catalyst theory under which some courts had awarded 

fees to plaintiffs’ lawyers who secured favorable out-of-court 

settlements. According to the Court, such voluntary actions 

by defendants “lack[] the necessary judicial imprimatur.” Id.

at 605. Following Buckhannon, we articulated a three-part 

test for determining prevailing-party status: (1) there must be 

a “court-ordered change in the legal relationship” of the 

parties; (2) the judgment must be in favor of the party seeking 

the fees; and (3) the judicial pronouncement must be 

accompanied by judicial relief. Thomas v. Nat’l Sci. Found., 

330 F.3d 486, 492–93 (D.C. Cir. 2003) (internal quotation 

marks and alterations omitted). Although we developed this 

test in connection with requests for fees by plaintiffs, we have 

applied its latter two requirements to requests by defendants 

as well. Jeppsen, 514 F.3d at 1290 (finding that a dismissal 

on the merits qualifies the defendant as a prevailing party). 

In this case, the second factor is easily satisfied. The 

hearing officer’s dismissal of the case was in “favor” of the 

District, Thomas, 330 F.3d at 493 (internal quotation marks 

omitted), and Straus nowhere argues otherwise. Focusing on 

the third factor, the District argues that the hearing officer’s 

“pronouncement [was] []accompanied by judicial relief,” id., 

because he “rejected the administrative complaint on its 

merits,” Appellant’s Br. 21. In support, the District points out 
6 

that in addition to seeking an evaluation, the complaint asked 

for a declaration that D.R. was denied a FAPE. “By pursuing 

the litigation,” the District argues, “Straus demanded a 

decision on the merits.” Id. at 22. As the District also notes, 

the hearing officer found that D.R. “suffered no educational 

harm.” SHO decision at 4. 

Given the hearing officer’s conclusion that the Nyankori 

letter mooted the case, however, the language the District 

relies on is dicta. As the hearing officer himself made quite 

clear, the “only issue before [him] is DCPS’ alleged failure to 

conduct a psychiatric evaluation,” which he concluded “was 

mooted by DCPS’ prompt authorization of an independent 

evaluation.” SHO decision at 3 (emphasis added). Moreover, 

the portion of the hearing officer’s decision the District relies 

on begins with a counterfactual subjunctive: “The facts of this 

case suggest that even if DCPS had not authorized an 

independent evaluation, Petitioner would have faced an uphill 

burden of proving” educational harm. Id. (emphasis added). 

To be sure, the hearing officer goes on to state that D.R. 

“suffered no educational harm.” Id. at 4. Read in context, 

however, that sentence represents not a decision on the merits, 

but instead the hearing officer’s speculation about what might 

have happened had DCPS refused to provide the evaluation. 

District of Columbia v. Jeppsen, 514 F.3d 1287 (D.C. 

Cir. 2008), does not help the District. That case involved 

three separate claims, one of which the district court decided 

on the merits in favor of the parents. Given that, we held that 

the parents qualified as prevailing parties even though one of 

the other claims was dismissed as moot. Jeppsen, 514 F.3d at 

1291. Here, by contrast, the hearing officer resolved nothing 

on the merits. Although the complaint asked for declaratory 

relief as well as for the psychiatric evaluation, the hearing 

officer found that the evaluation was the “only issue” in the 
7 

case and, once DCPS provided it, dismissed the case as moot. 

SHO decision at 3. 

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 
8 

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)). 

The District insists that even if not every involuntary 

dismissal with prejudice conveys judicial relief, the one in this 

case did because Straus “pressed forward” and was “halted 

only by the hearing officer’s decision.” Appellant’s Br. 27, 

26. But this argument ignores the language of the IDEA’s 

fee-shifting provision. Subsection II allows a school district 

that is a “prevailing party” to recover fees “against the 

attorney of a parent who continued to litigate after the 

litigation clearly became frivolous, unreasonable, or without 

foundation.” 20 U.S.C. § 1415(i)(3)(B)(i)(II). Under the 

statute, then, the behavior of the parents’ lawyer becomes 

relevant only if the school district first qualifies as a 

prevailing party. Here, because the District does not qualify 

as a prevailing party, it may not recover fees even if Straus 

continued to litigate inappropriately. See id. 

The District makes one final argument. Even if it is 

unable to qualify as a prevailing party under subsection II, it 

claims that it may receive fees under a different section of the 

IDEA’s fee-shifting provision, namely subsection III, which 

authorizes awards 

to a prevailing State educational agency or 

local educational agency against the attorney 

of a parent, or against the parent, if the parent’s 

complaint or subsequent cause of action was 

presented for any improper purpose, such as to 

harass, to cause unnecessary delay, or to 

needlessly increase the cost of litigation. 
9 

20 U.S.C. § 1415(i)(3)(B)(i)(III). According to the District, 

subsection III’s use of the term “prevailing” in lieu of 

subsection II’s “prevailing party” signals that Buckhannon’s 

definition of “prevailing party” does not apply to subsection 

III. In support, the District points out that although subsection 

II is based on section 1988, the general civil rights attorney’s 

fees statute, subsection III mirrors Federal Rule of Civil 

Procedure 11, which authorizes courts to sanction attorneys 

who submit pleadings or other filings “for any improper 

purpose.” Freed from the constraints of Buckhannon, the 

argument goes, “prevailing” in subsection III simply means 

the winning side—in this case, the District. 

According to Straus, however, the District forfeited this 

argument by failing to raise it in the district court. See Adams 

v. Rice, 531 F.3d 936, 945 (D.C. Cir. 2008) (holding that a 

party forfeits for appeal arguments not raised before the 

district court). We agree. The District’s complaint sought 

relief only under subsection II, and although the District did 

argue in its motions for summary judgment that Straus acted 

with an “improper purpose” as required by subsection III, it 

never claimed, as it does here, that the word prevailing in 

subsection III means something different from prevailing 

party as defined by Buckhannon. 

The District claims that Straus “forfeited any contention 

that the District’s argument is forfeited” because his brief 

never “explicitly suggest[s]” that the District’s argument was 

“improper[].” Reply Br. 12. But in the case the District cites 

in support, Fox v. District of Columbia, 83 F.3d 1491, 1495–

96 (D.C. Cir. 1996), the party in Straus’s position made no 

mention at all of the forfeited argument. By contrast, Straus’s 

brief points out the obvious—that the District “failed to plead 

this argument in its original complaint or any of its papers 
10 

filed in the District Court”—and then states that he “will 

nonetheless address it in the first instance.” Appellees’ Br. 

26. Read most naturally, these statements indicate that Straus 

believed that although he was under no obligation to respond 

to the District’s new argument because the District had 

forfeited the point, he would “nonetheless” address it. True, 

Straus never said in so many words that the District forfeited 

the argument, but the District identifies no case, nor are we 

aware of one, requiring a party to invoke the magic word 

“forfeit.” The District failed to make its argument in the 

district court, and Straus raised the point. Our cases require 

nothing more. 

III 

The judgment of the district court is affirmed. 

So ordered.