United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 8, 2007 Decided January 23, 2007

No. 05-7183

ELIZABETH T. JESTER, NEXT FRIEND OF R.B.,

APPELLEE

v.

THE GOVERNMENT OF THE DISTRICT OF COLUMBIA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01886)

William J. Earl, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellant. With him on the brief were Robert J. Spagnoletti,

Attorney General at the time the brief was filed, Todd S. Kim,

Solicitor General, and Edward E. Schwab, Deputy Solicitor

General.

Elizabeth T. Jester, appearing pro se, argued the cause and

filed the brief for appellee.

Before: SENTELLE and RANDOLPH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: The Individuals with

Disabilities Education Act (IDEA) authorizes district judges to

award attorney’s fees to a “prevailing party” who is the parent

of a disabled child, or in some circumstances, who is a state or

local educational agency. 20 U.S.C. § 1415(i)(3)(B). The

District of Columbia Appropriations Act of 2005, Pub. L. No.

108-335, 118 Stat. 1322, 1344 (2004), limits the amount of

attorney’s fees the District of Columbia may pay to private

parties in such cases to $4,000 per “action.” Actions under the

IDEA begin with an administrative proceeding, after which any

party adversely affected may seek judicial review in district

court. See 20 U.S.C. § 1415(i)(1), (2). The question in this

appeal is whether the district court action is part of the same

“action” as the administrative proceeding for purposes of the

fee-shifting provision. 

Elizabeth Jester represented minor child R.B. in

proceedings seeking to vindicate his rights under the IDEA. The

District of Columbia Public Schools acceded to most of R.B.’s

special education requests at the administrative hearing. R.B.

filed suit in the district court, seeking judicial review of the

denial of his remaining requests. In the meantime, the District

paid Jester $4,094.80 for attorney’s fees and costs expended in

connection with the administrative proceeding. The district

court ruled in R.B.’s favor on his remaining requests and, in

response to Jester’s motion, ordered the District of Columbia to

pay an additional $9,606.13 in fees and costs associated with the

district court proceedings. The District of Columbia argues that

the order violates the $4,000 cap in the Appropriations Act. 

The district court relied on a decision we have since

reversed. See Mem. Order, Nov. 15, 2005, at *3-4 (citing

Kaseman v. District of Columbia, 355 F. Supp. 2d 205 (D.D.C.
3

2005), rev’d 444 F.3d 637 (D.C. Cir. 2006)). Kaseman

presented the question whether the administrative hearing and

later district court litigation over fee-shifting – so-called feeson-fees litigation – comprised the same action for purposes of

the IDEA and the Appropriations Act fee-cap. Although “[a] fee

request is . . . not a direct appeal of a decision made by the

agency at the administrative hearing, as it does not call into

question the child’s evaluation or placement,” we concluded

that, because litigation over fees “arises out of the same

controversy and depends entirely on the administrative hearing

for its existence,” fees-on-fees litigation is part of the same

action as the IDEA administrative hearing. Kaseman, 444 F.3d

at 642. If an administrative hearing and ancillary fee litigation

are one action, an administrative proceeding and the judicial

proceeding that follows must also be one action. The judicial

aspect of the action is a continuation of the same controversy,

although the administrative process may have refined the issues.

If the parent wins in district court after losing in the

administrative hearing, the parent is eligible to recover

attorney’s fees and costs expended in litigating the controversy

from beginning to end. See, e.g., Moore v. District of Columbia,

907 F. 2d 165 (D.C. Cir. 1990) (en banc); Kaseman, 444 F. 3d

at 642. If the parent loses in district court after winning at the

administrative phase, the parent would not be a prevailing party

and would not be eligible for an award of fees. To accept

Jester’s two-action proposal would mean that in the first

situation just mentioned, the parent could not recover fees from

the administrative stage even though the parent prevailed in

court, and that in the second situation, the parent could recover

fees from the administrative stage, even though the parent lost

in court. That is senseless. 

Our holding that the administrative hearing and the judicial

review comprised a unitary action for purposes of the feeshifting provision means that, under current law, Jester cannot
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recover more than $4,000 in fees for the entire case,

administrative and judicial. In Calloway v. District of

Columbia, 216 F.3d 1, 9-10 (D.C. Cir. 2000), we held that the

district court may award the full amount of attorney’s fees, but

the District cannot pay a fee award beyond the limit set by the

cap. In this case, the District proposed an order that fulfilled

Calloway’s holding by requiring the District to “pay Plaintiff’s

counsel that much of the award as is permitted by [the

Appropriations Act].” Such an order properly reflects the law:

it requires the District to make timely payment of all fees

awarded, up to the maximum allowed by the fee cap, and leaves

a record of the full amount of fees due to plaintiff. The district

court order awarding an additional $9,606.13 and mandating

payment within thirty days is vacated and the case is remanded

to the district court. 

The cap in the Appropriations Act applies only to attorney’s

fees, not costs, as the District conceded in the district court.

This is doubtless why the District paid Jester $4,094.80 at the

end of the administrative stage. Although this exceeded the cap,

some part of the payment presumably represented costs. On

remand Jester may thus be able to collect an additional amount

of attorney’s fees for the judicial proceedings, plus additional

costs incurred. We leave the precise calculations to the

judgment of the district court. 

So ordered.