United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2011 Decided June 28, 2011

No. 09-7092

DISTRICT OF COLUMBIA,

APPELLEE

v.

CHIKE A. IJEABUONWU AND LAW OFFICES OF CHIKE A.

IJEABUONWU, LLC,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00249)

Jude C. Iweanoge argued the cause for appellants. With 

him on the brief was John O. Iweanoge II.

Carl J. Schifferle, Assistant Attorney General, Office of 

the Attorney General for District of Columbia, argued the 

cause for appellee. With him on the brief were Peter J. 

Nickles, Attorney General, Todd S. Kim, Solicitor General, 

and Donna M. Murasky, Deputy Solicitor General.

Before: GINSBURG and GRIFFITH, Circuit Judges, and 

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

Concurring opinion filed by Senior Circuit Judge

RANDOLPH.

GINSBURG, Circuit Judge: The District of Columbia filed 

this suit to recover its attorneys’ fees from Chike Ijeabuonwu, 

a lawyer who brought an administrative complaint against the 

District on behalf of a student with special educational needs. 

Under the Individuals with Disabilities Education Act 

(IDEA), a court may award attorneys’ fees to the “prevailing 

party,” whether it be the plaintiff or the defendant. The 

district court held D.C. was a prevailing party and awarded it 

attorneys’ fees. For the reasons that follow, we reverse that 

judgment.

I. Background

Ijeabuonwu’s client in the administrative matter was a 

student who lived in the District of Columbia and was eligible 

for special education under the IDEA, which guarantees “all 

children with disabilities” access to “a free appropriate public 

education.” 20 U.S.C. § 1400(d)(1)(A). After evaluating the 

student in 2007, the District of Columbia Public Schools 

(DCPS) determined it could best meet this statutory 

requirement by paying for him to attend a certain private

school. 

In July 2008, after the student’s first year there, the 

school convened a so-called multidisciplinary team (MDT) 

meeting, as required by the IDEA. Neither a DCPS official

nor the student’s parents were present at the meeting; the 

student was represented by Ijeabuonwu’s brother, who is 

employed as an “education advocate” at Ijeabuonwu’s law 

firm. The MDT recommended the student’s psychological 
3

therapy be increased by 30 minutes each week and that he be 

given “a comprehensive psychological eval[uation],” 

including psychological, educational, and social history

assessments. 

On September 9, 2008 Ijeabuonwu filed an 

administrative complaint — sometimes called a “due process 

complaint” — on behalf of the student and his mother. The 

complaint alleged the DCPS had not yet conducted the 

evaluation recommended by the MDT and also had failed to 

conduct an “appropriate triennial evaluation.” For relief, 

Ijeabuonwu sought a “[t]imeline to evaluate” the student, 

additional meetings to discuss the evaluations, “compensatory 

education,” attorneys’ fees, and several specific declarations.

Nine days later Richard Nyankori, a Special Assistant to 

the Chancellor of the DCPS, faxed a letter to Ijeabuonwu 

authorizing “an independent comprehensive psychological 

evaluation (which includes cognitive, educational, and clinical 

components as well as a social history), and a psychiatric 

evaluation,” to be done at the expense of the DCPS. 

Ijeabuonwu neither informed his client of the letter nor 

withdrew his administrative complaint, and on October 14 the 

parties proceeded to an administrative hearing.

Shortly thereafter, Hearing Officer Terry Banks issued a 

written order and decision stating “the only issue before [me]

is DCPS’ alleged failure to conduct psychological, 

educational, and social history evaluations that were ordered 

by the MDT on July 1st”; that issue, however, “was mooted 

by DCPS’ prompt authorization of an independent 

comprehensive psychological evaluation.” The hearing 

officer nonetheless went on to devote three paragraphs of 

commentary to the merits of Ijeabuonwu’s complaint,

concluding he had failed to show the DCPS was notified of 
4

and had ignored the MDT’s recommendations, and that the 

student “ha[d] suffered no educational harm as a consequence 

of the evaluations not having been conducted.” Neither party 

appealed that decision.

D.C. then filed this suit against Ijeabuonwu to recover the 

attorneys’ fees it had incurred in defending itself against his 

administrative complaint. The district court entered a

summary judgment, ordering Ijeabuonwu to pay such fees as 

D.C. incurred once Ijeabuonwu had received Nyankori’s 

letter, after which it had been unreasonable for Ijeabuonwu to 

continue pursuing the case to a hearing. District of Columbia 

v. Ijeabuonwu, 631 F. Supp. 2d 101, 106 (2009). Ijeabuonwu 

now appeals that ruling. 

II. Analysis

Although the American Rule is that parties bear their own 

attorneys’ fees, the Congress has modified the rule in a 

number of civil rights statutes. Pursuant to the IDEA, for one, 

a court may award attorneys’ fees

to a prevailing party who [sic] is a State 

educational agency or local educational agency 

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). Addressing de novo the 

issue of law whether D.C. is a “prevailing party” in this case, 

we hold it is not. Because we reverse the judgment of the 

district court on that ground, we need not decide whether, as 

D.C. maintains, Ijeabuonwu’s pursuit of an administrative 

hearing was unreasonable.
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As both parties recognize, this case follows closely in the 

wake of our decision last term in District of Columbia v. 

Straus, 590 F.3d 898 (2010). The defendant Straus had filed 

an administrative complaint under the IDEA on behalf of a 

student seeking (1) an order requiring D.C. to pay for the 

independent psychiatric evaluation recommended by the 

student’s assessment team, (2) a declaration that the delay in 

obtaining the evaluation had denied the student a free 

appropriate public education, and (3) attorneys’ fees. Id. at 

899–900. Within a week thereafter, Richard Nyankori of the 

DCPS sent Straus a letter substantively identical to the one he

would later send to Ijeabuonwu. Id. at 900. Straus 

nonetheless pursued the matter to an administrative hearing at 

which, as here, Hearing Officer Banks presided. In a written 

decision, the hearing officer stated the “only issue” before 

him was the “alleged failure to conduct a psychiatric

evaluation” as recommended by the MDT, which he 

concluded had been “mooted by DCPS’ prompt authorization 

of an independent evaluation.” Id. at 901. As in the precursor 

to the present case, neither party appealed, id. at 900, but D.C.

filed suit in the district court seeking reimbursement of its 

attorneys’ fees pursuant to § 1415(i)(3)(B)(i), id. That court 

held D.C. was not a “prevailing party” in the administrative 

proceeding because its own change of position was what had 

mooted the dispute, causing the case to dismissed, and we 

agreed. Id. at 900, 903. 

We began our analysis in Straus with the Supreme 

Court’s teaching in Buckhannon Board & Care Home, Inc. v. 

West Virginia Department of Health & Human Resources, 

532 U.S. 598, 603–05 (2001), that to be a prevailing party 

“requires more than achieving the desired outcome.” Straus, 

590 F.3d at 901. Following Buckhannon, in Thomas v. 

National Science Foundation, 330 F.3d 486, 492–93 (2003), 
6

we had identified three requirements for prevailing party

status: There must be (1) “a court-ordered change in the legal 

relationship of the parties”; (2) a “judgment ... in favor of the 

party seeking the fees”; and (3) “judicial relief” 

accompanying the “judicial pronouncement.” Straus, 590 

F.3d at 901 (citing Thomas, 330 F.3d at 492–93) (internal 

quotation marks omitted). Only the latter two of these 

requirements apply when the party seeking fees is a 

defendant. Id. at 901.

In Straus, as here, the only contested issue was whether 

D.C. had obtained any “judicial relief” in the administrative 

proceeding as to which it was seeking to recover attorneys’ 

fees. We answered in the negative because the hearing officer 

had dismissed the case based not upon its merits but rather 

upon the mootness the District itself had brought about. Id. at 

901–02. 

We decided Straus after the district court had issued its 

opinion in this case but before that court denied Ijeabuonwu’s 

motion for reconsideration. In denying reconsideration, the 

district court said Straus “does not change the outcome” 

because in this case “the hearing officer did reach the merits 

of the student’s complaint and resolved the issue in favor of 

the District.”

On appeal Ijeabuonwu, of course, argues Straus is 

controlling. The hearing officer here, he points out, stated

both that D.C.’s failure to conduct an evaluation was the 

“only issue” and that the Nyankori letter had rendered that 

issue moot; therefore, as in Straus, it is of no moment that the 

hearing officer also volunteered his opinion that the student

had “suffered no educational harm.”
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D.C. attempts to navigate around Straus by emphasizing 

our observation there that the hearing officer’s obiter dicta 

concerning the merits had begun with a counterfactual 

subjunctive statement (“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”), making clear that the hearing officer’s 

later statement the student had “suffered no educational harm” 

was only his “speculation about what might have happened 

had DCPS refused to provide the evaluation.” Id. at 901. 

Because the hearing officer here, the District continues, did 

not couch his comments upon the merits in the counterfactual 

subjunctive, he was squarely resolving the issue.

The District errs in implying our decision in Straus

turned upon the tense in which the hearing officer couched his 

dicta. The underlying point was that in Straus, as in this case,

the hearing officer recognized the want of an evaluation was

the sole issue the student’s attorney had raised before him and 

then determined the Nyankori letter had already resolved that 

issue. The counterfactual subjunctive in Straus reflected and 

reinforced that point but was not essential to it. What matters 

is the hearing officer’s determination in each case that there 

was before him no live issue on the merits. 

D.C. next argues the Nyankori letter did not moot the 

entire case because Ijeabuonwu’s complaint sought not only 

an evaluation but also “compensatory education,” which we 

have described as the belated provision of “educational 

services the child should have received in the first place,” 

Reid v. District of Columbia, 401 F.3d 516, 518 (2005). As 

the District notes, in Lesesne v. District of Columbia, 447 

F.3d 828, 833 (2006), we said an “explicit demand for 

compensatory education” is sufficient to forestall mootness,

and so it is. In Lesesne, however, we reviewed a judgment of
8

the district court holding a plaintiff’s IDEA claim was moot, 

id. at 833, whereas here the administrative order that adjudged 

the case moot is not before us; that order was not challenged 

administratively or otherwise appealed. Accordingly, just as 

D.C. itself argues concerning a different point, the law of the 

case doctrine precludes us from revisiting the hearing 

officer’s conclusion the entire dispute is moot. See United 

States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009) (“a 

legal decision made at one stage of litigation, unchallenged in 

a subsequent appeal when the opportunity to do so existed, 

governs future stages of the same litigation” (internal 

quotation marks and alterations omitted)); Kaseman v. 

District of Columbia, 444 F.3d 637, 641–42 (D.C. Cir. 2006)

(administrative IDEA proceeding and later fee claim are part 

of same case).

Finally, D.C. argues the res judicata effect of the hearing 

officer’s having dismissed the administrative complaint with 

prejudice “is itself a form of ‘judicial relief’” and therefore 

sufficient to make D.C. a “prevailing party.” In response to a 

similar argument in Straus, we noted that in some cases the 

“[r]es judicata effect would certainly qualify as judicial 

relief,” for example, where “it protected the prevailing school 

district from having to pay damages or alter its conduct.” 590 

F.3d at 902. In that case, however, res judicata provided no 

such protection because the District “had already agreed to 

pay for the requested evaluation—the only issue then before 

the hearing officer.” Id. 

D.C. would have us distinguish Straus upon the basis of 

the last-quoted clause: In this case, it says, res judicata gives 

the District meaningful relief because the student’s claim for 

compensatory education is now precluded on the ground that

it arose from the same nucleus of facts as did the claims the 

hearing officer held were moot. See Apotex, Inc. v. FDA, 393 
9

F.3d 210, 217 (D.C. Cir. 2004) (“a judgment on the merits in 

a prior suit bars a second suit involving identical parties or 

their privies based on the same cause of action,” which “turns 

on whether [the two suits] share the same nucleus of facts” 

(internal quotation marks omitted)). What D.C. overlooks is 

that the evaluation for which it agreed to pay is but a 

preliminary step; if the evaluation shows a need for 

compensatory education, then D.C. will still have to provide 

it. The dismissal therefore “protected the District from 

nothing at all.” Straus, 590 F.3d at 902; see also Drake v. 

FAA, 291 F.3d 59, 67 (D.C. Cir. 2002) (res judicata “does not 

bar a litigant from doing in the present what he had no 

opportunity to do in the past”).∗

In consequence, we see no principled reason to depart 

from our holding in Straus. As we said then:

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 [attorneys’] fees 

from the parents’ lawyers.

 ∗ D.C. similarly contends the res judicata effect of the hearing 

officer’s decision forecloses the student from renewing his claim 

related to the DCPS’s “failure to conduct an ‘appropriate’ triennial 

evaluation.” As D.C. acknowledges elsewhere in its brief, 

however, any such claim would be moot because Nyankori’s letter 

authorized the student to obtain a psychiatric evaluation, which was 

part of the triennial evaluation but not of the evaluation called for 

by the MDT. If a claim for triennial evaluation would be dismissed 

as moot in any event, then res judicata is of no benefit to D.C.
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Straus, 590 F.3d at 902. To allow this practice would deter 

lawyers from taking IDEA cases and thereby deprive parents 

of their most effective means of enforcing the statute. 

III. Conclusion

We hold the District of Columbia is not a “prevailing 

party” under the IDEA and, accordingly, is not eligible for an 

award of attorneys’ fees. The judgment of the district court is 

therefore

Reversed.
RANDOLPH, Senior Circuit Judge, concurring: Although I

have my doubts about the result in District of Columbia v.

Straus, 590 F.3d 898 (D.C. Cir. 2010), I agree that the decision

requires us to reverse. But I do not agree with the majority’s

implicit criticism of the District for even seeking attorneys’ fees. 

Maj. Op. at 9-10.

 

The District invoked the portion of the statute allowing an

educational agency to collect attorneys’ fees from a parent’s

attorney if the agency is a “prevailing party” and if the attorney

“continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation.” 20 U.S.C.

§ 1415(i)(3)(B)(i)(II). The District had ample grounds for its

claim: the attorney, Chike Ijeabuonwu, did not tell his clients

that the District had agreed to his demands, he persisted in his

administrative complaint after the case thus became moot, and

he admitted that he was prolonging the litigation in order to

collect fees for himself. That is the sort of conduct that deserves

a sanction, and requiring Ijeabuonwu to pay attorneys’ fees

would have accomplished that end.

The portion of Straus the majority quotes at the end of its

opinion seems to me incorrect. Straus seemed to assume the

District could collect attorneys’ fees if it “ignore[d] its legal

obligations until parents sue[d], voluntarily compl[ied] quickly,

[and] file[d] for and receive[d] a dismissal with prejudice for

mootness . . ..” Maj. Op. at 9-10 (quoting Straus, 590 F.3d at

902). The majority states, as did Straus, that this would deter

lawyers from taking IDEA cases. But it would not. It would

deter only attorneys who sought to prolong the case after

litigation became “frivolous, unreasonable, or without foundation”—and that is all to the good.