United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2007 Decided February 8, 2008

No. 07-7012

EVAN FISHER, A MINOR, THROUGH HIS PARENTS 

AND NEXT FRIENDS DAVID AND PATRICIA FISHER, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA,

A MUNICIPAL CORPORATION, AND

MICHELLE RHEE,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 05cv00738)

Donna M. Murasky, Senior Assistant Attorney General,

Office of Attorney General for the District of Columbia, argued

the cause for the appellants. Linda J. Singer, Attorney General

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

and Edward E. Schwab, Deputy Solicitor General, were on brief.

Diana M. Savit argued the cause for the appellees.

Before: GINSBURG, Chief Judge, and HENDERSON and

GRIFFITH, Circuit Judges.
2

1

The IDEA provides that “the court, in its discretion, may award

reasonable attorneys’ fees as part of the costs . . . to a prevailing party

who is the parent of a child with a disability.” 20 U.S.C.

§ 1415(i)(3)(B)(i)(I). 

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Appellants

Michelle Rhee, Chancellor of the District of Columbia Public

Schools, et al. (DCPS), appeal the district court’s order requiring

DCPS to reimburse appellees Evan Fisher, a minor, through his

parents and next friends David and Patricia Fisher (collectively

the Fishers) for expert fees incurred in an action brought

pursuant to the Individuals with Disabilities Education Act, 20

U.S.C. §§ 1400 et seq. (IDEA). Although the district court

recognized that the Supreme Court’s holding in Arlington

Central School District Board of Education v. Murphy, 126 S.

Ct. 2455 (2006), and our holding in Goldring v. District of

Columbia, 416 F.3d 70 (D.C. Cir. 2005), established that expert

fees are not “costs” that may be awarded under the IDEA, it

nonetheless ordered DCPS to reimburse the Fishers for expert

fees they incurred because DCPS had a “policy” pursuant to

which it had previously awarded expert fees to prevailing IDEA

parties. For the reasons set forth below, we reverse the district

court’s judgment.

I.

Evan Fisher (Fisher) is a learning disabled student whose

family lives in the District. After partially prevailing at an

IDEA due process hearing, see 20 U.S.C. § 1415, involving the

placement of Fisher at a boarding school in Massachusetts, on

April 18, 2005, the Fishers requested payment of their legal fees

and expenses as “prevailing parties” under the IDEA’s feeshifting provision.1

 Only two months earlier—on February 1,

2005—DCPS had issued “Guidelines for the Payment of
3

Attorney Fees in IDEA Matters” (Guidelines), providing in

pertinent part: 

Consistent with recent judicial decisions and the

provisions of 28 U.S.C. § 1920 . . . , DCPS will pay

reasonable costs incurred for expert/advocate services in

connection with a due process hearing request, where the

parent is determined to be a prevailing party.

DCPS Guidelines for the Payment of Attorney Fees in IDEA

Matters 3-4 (Feb. 1, 2005).

As noted, the Fishers requested reimbursement of $8,399.50

in expert fees. They had earlier appealed in part the hearing

officer’s determination by filing a complaint in district court on

April 12, 2005. In July 2005, the Fishers received notice that

the DCPS Office of General Counsel had approved payment of

$2,965 in expert fees. It disallowed $1,832.50 in fees incurred

for expert services performed before the Fishers requested a due

process hearing, $875 in expert fees for post-hearing work and

$2,727 in expert fees that were not sufficiently described.

On July 26, 2005, this court held in Goldring v. District of

Columbia, 416 F.3d 70 (D.C. Cir. 2005), that expert fees are not

awardable to prevailing parties as “costs” under the IDEA’s feeshifting provision. The Fishers nonetheless amended their

complaint on August 2, 2005 to include a claim for full payment

of expert fees (a balance of $5,434.50) incurred in the

administrative proceedings.

The parties subsequently settled the IDEA claim and the

district court approved the settlement on January 10, 2006. As

part of the settlement, the district court retained jurisdiction to

decide the Fishers’ claim for fees and expenses, including their

request for $5,434.50 in unreimbursed expert fees. Although

DCPS argued that the Goldring decision alone precluded an

award of expert fees, the district court stayed its ruling pending

the Supreme Court’s decision in Arlington Central School
4

District Board of Education v. Murphy, 126 S. Ct. 2455 (2006).

On June 26, 2006, the Supreme Court held that expert fees are

not recoverable in IDEA actions because “the terms of the IDEA

fail to provide the clear notice that would be needed to attach

such a condition to a State's receipt of IDEA funds.” Id. at 2461.

Citing Arlington Central School District and Goldring, the

district court denied the Fishers’ request for expert fees. Fisher

v. Janey, No. 05-738, slip op. at 5 (D.D.C. Aug. 28, 2006). The

Fishers moved to alter or amend the order pursuant to Federal

Rule of Civil Procedure 60 and the district court eventually

ordered DCPS to reimburse the Fishers the remaining $5,434.50

in expert fees. Fisher v. Janey, No. 05-738, mem. at 2 (D.D.C.

Oct. 4, 2006). The district court explained that “at the time the

plaintiffs litigated their administrative due process case and

submitted their request for reimbursement of attorneys’ fees and

costs, [DCPS] had a policy of paying expert fees to prevailing

parties” and observed that “[p]ursuant to this policy, [DCPS]

granted in part and denied in part plaintiffs’ request . . . stating

that the plaintiffs failed to satisfy the DCPS guidelines for

receiving a reimbursement.” Id. Noting that DCPS “concede[d]

that IDEA does not prohibit a voluntary payment of expert

fees,” the district court ordered DCPS to pay the Fishers the full

amount of expert fees “because plaintiffs have satisfied

[DCPS’s] guidelines for requesting voluntary payment of such

fees.” Id. DCPS filed a timely appeal pursuant to 28 U.S.C.

§ 1291. 

II.

We review the district court’s award of expert fees de novo.

Goldring, 416 F.3d at 73 (citing Diamond v. Atwood, 43 F.3d

1538, 1540 (D.C. Cir. 1995)). The IDEA provides that “[i]n any

action or proceeding brought under [the IDEA], the court, in its

discretion, may award reasonable attorneys’ fees as part of the

costs . . . to a prevailing party who is the parent of a child with

a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). As noted, DCPS’s
5

2

Compare T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469,

481-82 (7th Cir. 2003) (IDEA prevailing party cannot recover expert

fees), and Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1031-33

(8th Cir. 2003) (same), with Murphy v. Arlington Cent. Sch. Dist. Bd.

of Educ., 402 F.3d 332, 337-39 (2d Cir. 2005) (IDEA prevailing party

can recover expert fees); Arons v. N.J. Bd. of Educ., 842 F.2d 58, 62

(3d Cir. 1988) (same).

Guidelines authorized DCPS to pay expert fees “[c]onsistent

with recent judicial decisions.” DCPS Guidelines for the

Payment of Attorney Fees in IDEA Matters 3-4 (Feb. 1, 2005).

Accordingly, DCPS conditioned payment of expert fees on

applicable judicial interpretation of the IDEA fee-shifting

provision. 

At the time the Fishers submitted their fee request, the

circuits were split over whether an IDEA prevailing party could

recover expert fees2

 and the D.C. Circuit had not yet decided the

issue. See Goldring, 416 F.3d at 73 (“The question whether the

IDEA’s fee-shifting provision—section 1415—enables a

prevailing party to recover expert fees as part of his costs is one

of first impression in our Circuit . . . .”). Our Circuit’s district

court decisions were also divided although most had held that

the fees were recoverable. See Czarniewy v. District of

Columbia, No. 02-1496, slip op. at 8-10, 2005 WL 692081

(D.D.C. Mar. 25, 2005) (allowing award of expert fees); Bailey

v. District of Columbia, 839 F. Supp. 888, 892 (D.D.C. 1993)

(same); Aranow v. District of Columbia, 791 F. Supp. 318, 318

(D.D.C. 1992) (same). But see George v. District of Columbia,

No. 03-1656, mem. at 2 (D.D.C. Mar. 8, 2005) (denying award

of expert fees). According to the Guidelines, then, at the time

the Fishers initially submitted their claim for reimbursement,

“recent judicial decisions” at the district court level indeed

permitted the recovery of expert fees. Both Goldring and

Arlington Central School District subsequently held, however,

that expert fees are not awardable to prevailing parties as “costs”
6

3

We find the Fishers’ “arbitrary and capricious” theory opaque for

several reasons. First, the Fishers do not explain whether they are

invoking the federal or the District’s Administrative Procedure Act.

Second, the Fishers do not identify any right to reimbursement aliunde

the IDEA. And that right is not found in the IDEA because, by the

time the Fishers submitted their claim, Goldring and Arlington Central

School District had established that the IDEA does not create such a

under the IDEA’s fee-shifting provision. See 416 F.3d at 75-

77; 126 S. Ct. at 2461. Once the basic assumption upon which

its Guidelines had rested—that it was required to reimburse

expert fees under the IDEA—was held incorrect, DCPS decided

not to reimburse such fees.

The Fishers contend DCPS could not alter its position on

expert fees, at least with respect to their claim, for two reasons.

First, they say DCPS waived its right to deny the Fishers’ claim

by its earlier adoption of the Guidelines requiring

reimbursement and by originally paying the Fishers’ claim in

part. Appellees’ Br. 10-12. But at the time of those events,

DCPS reasonably believed it was required to reimburse expert

fees under the IDEA and expressly conditioned the Guidelines

upon that belief. Once intervening decisions—Goldring and

Arlington Central School District—made clear the IDEA did not

require DCPS to reimburse expert fees, DCPS changed its

position. It did not, therefore, by its actions before the issuance

of Golding and Arlington Central School District “knowingly

and voluntarily relinquish[] its right.” Nat’l Treasury

Employees Union v. Fed. Labor Relations Auth., 399 F.3d 334,

337 n.4 (D.C. Cir. 2005) (quotation omitted).

Second, the Fishers contend DCPS’s about-face was

arbitrary and capricious in violation of “standard principles of

administrative law.” Appellees’ Br. 12. Assuming arguendo

that the Fishers’ complaint can be interpreted as mounting an

Administrative Procedure Act challenge,3 DCPS’s decision
7

right. DCPS generously construes the Fishers’ theory to be that the

Guidelines create an independent and enforceable right to fees

irrespective of the IDEA. This leads DCPS to argue that the

Guidelines are, as their name suggests, not enforceable rules.

Because, as we show in the text, DCPS’s denial of reimbursement was

plainly neither arbitrary nor capricious, we need go no further in

analyzing the issue. We will, however, remind the Fishers that, while

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to

include only a “short and plain statement of the claim” and we

construe the complaint liberally, see Barr v. Clinton, 370 F.3d 1196,

1199 (D.C. Cir. 2004), the complaint must “‘give the defendant fair

notice of what the plaintiff’s claim is and the grounds upon which it

rests,’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)

(quotation omitted). Even under a liberal reading, the complaint fails

to provide DCPS with notice that the Fishers sought to recover their

expert fees pursuant to an alleged violation of an Administrative

Procedure Act. See Amended Compl. ¶ 54 (“As parties who prevailed

at an administrative due process hearing brought pursuant to the

IDEA, the Fishers are entitled to recover the reasonable attorney’s fees

and expenses incurred in connection with that proceeding.” ).

denying reimbursement was neither arbitrary nor capricious. As

noted, the original reimbursement was predicated on district

court decisions—as the only authoritative “recent judicial

decisions”—allowing an award of expert fees under the IDEA.

Once Goldring and Arlington Central School District were

decided, DCPS was no longer authorized to reimburse

prevailing parties for expert fees; therefore DCPS acted

correctly in denying the Fishers the remainder of their expert

fees in light of the two intervening decisions. 

For the foregoing reasons, we reverse the district court’s

judgment.

So ordered.