                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1250

B RUCE B INGHAM, M ARY G ILES B INGHAM, AND
S AM B INGHAM,
                                     Plaintiffs-Appellants,
                            v.


N EW B ERLIN S CHOOL D ISTRICT,
                                             Defendant-Appellee.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
       No. 06-CV-533—Patricia J. Gorence, Magistrate Judge.



   A RGUED S EPTEMBER 5, 2008—D ECIDED D ECEMBER 4, 2008




 Before F LAUM, R OVNER, and W ILLIAMS, Circuit Judges.
  R OVNER, Circuit Judge. Sam Bingham was a high school
student in the New Berlin School District in Wisconsin
when his parents, Mary and Bruce Bingham, determined
that he needed special education services. Toward that
end, they sent a letter to the principal of the New Berlin
West High School informing him of Sam’s condition
and requesting that the New Berlin School District per-
2                                               No. 08-1250

sonnel provide a special education evaluation. Sam and
his parents allege that District personnel failed to evaluate
Sam, implement an individual education program, or
notify them of their due process rights as required by
the Individuals with Disabilities Education Act (IDEA).
At some point in early 2004, Sam’s parents removed him
from the District’s high school and enrolled him at a
private school where he remained until graduation.
  On January 10, 2006, Sam’s parents filed a request for a
due process hearing with the Wisconsin Department of
Public Instruction. In their due process hearing request,
they alleged that the District had failed to comply with
certain provisions of the IDEA, and requested that the
District reimburse the Binghams for the cost of Sam’s
private school tuition in the amount of $15,638. The
Department of Public Instruction scheduled the hearing
for March 20, 2006, but on February 28, 2006, the District,
without admitting liability, voluntarily issued a check
to the Binghams in the full amount they requested.
  The plaintiffs accepted the payment but did not with-
draw the due process hearing request. In response to the
District’s motion for summary judgment in the Wisconsin
Division of Hearings and Appeals, the administrative law
judge concluded that, because of the payment, “there
remains no actual existing controversy that this tribunal
has the authority to adjudicate. The continuation of these
proceedings would have no practical effect on the under-
lying controversy, so the matter has become moot.” In re
Matter of Due Process Hearing Request for Sam Bingham, by
his Parents, Mary Giles and Bruce Bingham v. New Berlin Sch.
No. 08-1250                                                 3

Dist., Case No. LEA-06-001 at 1-2, Wisconsin Div. of
Hearings and Appeals (Mar. 14, 2006) (R. at 42) (document
6). Plaintiffs’ counsel then sent a letter to Administrative
Law Judge Coleman noting that judicial imprimatur is
required to obtain attorneys’ fees under the IDEA and
requesting that Judge Coleman declare that the Binghams
had prevailed in their suit. (R. at 42) (document 2). Judge
Coleman refused the request. Id. (document 1).
  The Binghams appealed Judge Coleman’s decision to
the district court below where the judge concluded that
the Binghams were not prevailing parties, denied their
motion for attorneys’ fees, and dismissed the action. The
Binghams appeal once more to this court, and we affirm.
   The Binghams expended much ink and paper (and many
minutes at oral argument) parading the misdeeds of the
District. We have no doubt that students suffer myriad ill
effects when a school district dismisses their serious
needs and violates the IDEA. This case, as it stands before
us, however, is not about the merits of the issue—that is,
whether the District violated the IDEA. Thus even if the
District admitted, and we concluded, that it was one
hundred percent liable for violations of the IDEA (of course
it does not, and we cannot—the merits have never been
adjudicated), this appeal involves one issue only and that
is whether the plaintiffs are entitled to attorneys’ fees. The
answer to that question is governed solely and completely
by a Supreme Court case never mentioned anywhere in
the plaintiffs’ brief or even in their reply: Buckhannon
Board and Care Home, Inc. v. West Virginia Department of
Health and Human Services, 532 U.S. 598 (2001). In
4                                                    No. 08-1250

Buckhannon, the Court rejected the previously widely
followed catalyst theory that posits that, for purposes of
determining an award of attorneys’ fees, a plaintiff prevails
if he achieves the desired outcome of litigation even if it
results from a voluntary change in the defendant’s con-
duct. Id. at 600. Rejecting the catalyst theory, the
Buckhannon court emphasized that in order to be
deemed a prevailing party, there must be a “material
alteration in the legal relationship of the parties”—that
is in the form of an enforceable judgment or court-
ordered consent decree. It could not be clearer that a
voluntary settlement by the defendant—the precise
situation presented here—does not entitle a plaintiff to
attorneys’ fees. Id. at 606.
  If there were any room to argue that the holding in
Buckhannon does not apply to the IDEA, that door has long
since closed.1 In 2003 this court applied the holding in
Buckhannon to IDEA cases as has every other circuit court
to have considered the question. See T.D. v. LaGrange Sch.
Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003). See also Smith
v. Fitchburg Pub. Sch., 401 F.3d 16, 22 (1st Cir. 2005); J.C. v.
Reg’l Sch. Dist. 10, 278 F.3d 119, 125 (2d Cir. 2002); John T.


1
  There have been not-unreasonable attempts to argue that the
Buckhannon decision does not apply to IDEA cases. See T.D v.
La Grange School Dist. No. 102, 222 F. Supp. 2d 1062 (N.D. Ill.
2002), rev’d, 349 F.3d 469 (7th Cir. 2003). See also Mark C. Weber,
Litigation Under the Individuals with Disabilities Education Act
After Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 65 Ohio St. L.J. 357,
399 (2004).
No. 08-1250                                                    5

ex rel. Paul T. v. Delaware County Intermediate Unit, 318
F.3d 545, 556 (3d Cir. 2003); G ex rel. RG v. Fort Bragg
Dependent Sch., 343 F.3d 295, 310 (4th Cir. 2003); John T. ex
rel. Robert T. v. Iowa Dept. of Educ., 258 F.3d 860, 863-64 (8th
Cir. 2001); P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1167
(9th Cir. 2007); Alegria v. Dist. of Columbia, 391 F.3d 262,
263 (D.C. Cir. 2004).
   When presented with the unambiguous holding of
Buckhannon at oral argument, the Bingham’s attorney could
only respond that the facts of this case are different. The
ruling of Buckhannon, however, does not depend on the
facts of a case, but rather only on a simple procedural
posture. A court may award attorneys’ fees only in those
cases where the plaintiff has prevailed by securing a
material alteration of the legal relationship between the
parties, either, for example, by court ordered consent
decree or an enforceable judgment. In this case the plain-
tiffs have neither. The judgment of the district court,
consequently, must be affirmed.
  Although we took the opportunity to elaborate on our
decision over the course of a few pages, this matter
could have been resolved in one sentence with a citation
to Buckhannon and T.D. v. LaGrange. And when a matter
is so easily and definitively resolved, one wonders why
an appellant has pursued the matter at all. It appears
that counsel for the appellant was aware of the Buckhannon
decision and its implication from the get-go. After the
administrative law judge dismissed the matter as moot, the
Bingham’s attorney wrote to the judge stating, “[a]s your
Order of Dismissal does not show that either of the
6                                                 No. 08-1250

parties prevailed, and the Federal District Court will
probably want judicial imprimatur to show how the case
was resolved, I am an enclosing an Order for your signa-
ture. Buckhannon Board & Care Home v. West Va. D.H.H.R.,
532 U.S. 598 (2001).” (R. at 42) (document 2). The adminis-
trative law judge, however, declined to issue any further
orders. It appears that counsel for the appellant was well-
aware from the early days of this case, not only that
Buckhannon mattered, but that it controlled the outcome
of this attorneys’ fees matter. And if for some reason he
was not, both the district court opinion and the District’s
brief on appeal made it clear. Yet counsel for the appellant
failed to cite the controlling law in either his brief or reply
brief on appeal. In short, Appellants’ counsel understood
that the law required prevailing party status and that they
had not obtained that outcome. Nevertheless, counsel
continued to litigate this case without a reasonable
basis for doing so, expending the resources of this
court and the opposing party.
   The plaintiffs could have preserved an argument for the
Supreme Court urging reversal of the Buckhannon decision
based on myriad scholarly critiques. See e.g. U.S. v.
Sachsenmaier, 491 F.3d 680, 685 (7th Cir. 2007) (noting that
when Supreme Court precedent remains good law, a
litigant may assert the argument in this court for the
sole purpose of preserving it for Supreme Court review).
We are aware that there has been substantial criticism
of the Buckhannon decision, and that the rule it announced
falls particularly hard on parents of disabled children
litigating under the IDEA. Parents of disabled children
are unlikely to have significant financial resources to
No. 08-1250                                                    7

expend on legal fees and may prefer to spend the resources
they do have on private education rather than fighting
the school system to provide the services to which they
are rightfully entitled. Lynn M. Daggett, Special Education
Attorney’s Fees: Of Buckhannon, The IDEA Reauthorization
Bills, and the IDEA as Civil Rights Statute, 8 U.C. Davis J. Juv.
L. & Pol’y 1, 41 (2004). They tend to seek equitable relief
that is significant to them or to the community at large
where the cost of those services is far lower than the cost
of litigating to receive the services. Catherine R. Albiston
& Laura Nielsen, The Procedural Attack on Civil Rights:
The November 20, 2008 Empirical Reality of Buckhannon for
the Private Attorney General, 54 UCLA L. Rev. 1087, 1090-91
(2007). The rule of Buckhannon, these scholars offer,
points the incentives in the wrong direction. A school
district can delay providing expensive educational
services as long as possible and hope that the parents
either tire of the battle, re-matriculate elsewhere, or that
the child ages out of the school system. By doing so they
do not risk having to pay the opposing side’s attorneys’
fees at the end of the protracted battle, provided they
capitulate sometime prior to judgment. Albiston &
Nielsen, supra, at 1109. The situation may require
parents to choose between a settlement that provides
educational services to their child, but sacrifices recovery
of attorneys’ fees, or continuing to litigate indefinitely
while the child goes without the needed services in place,
in an uncertain attempt to become a prevailing party and
recover attorneys’ fees. Id. at 1111. Of course, these
choices also create conflicts between IDEA clients and
their attorneys. Dagget, supra, at 42. And ultimately, the
8                                                 No. 08-1250

very real risk of losing attorneys’ fees will significantly
decrease the pool of attorneys willing to represent clients
other than those who are very wealthy and can afford to
pay fees on their own. The Buckhannon resolution also
may induce IDEA attorneys to make unreasonable de-
mands of school districts to prevent the district from
mooting the case by voluntarily agreeing to the parents’
requests. See Weber, supra note 1 at 399-400. The District
argues that Buckhannon gives school districts the incen-
tive to settle and pour money into a child’s education
rather than into expensive litigation. Settlement is, no
doubt, a worthwhile result of Buckhannon, although many
scholars have argued that Buckhannon has the effect of
prolonging litigation before settlement. See Stefan R.
Hanson, Buckhannon, Special Education Disputes, and Attor-
neys’ Fees: Time for a Congressional Response Again, 2003
BYU Educ. & L.J. 519, 546 (2003). And of course, if a
school district is providing an inadequate education to
any child, time is of the essence.
  Although this is an important debate, policy arguments
of this nature are better directed to a legislative body or
to the Supreme Court. We are an intermediate appellate
court, and our task is to follow Supreme Court precedent
where it has direct application in a case. Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989);
see also Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam)
(“[U]nless we wish anarchy to prevail within the federal
judicial system, a precedent of this Court must be fol-
lowed by the lower federal courts.”). Buckhannon is directly
on point and dictates in unambiguous terms that the
Binghams are not prevailing parties entitled to attorneys’
No. 08-1250                                                   9

fees. The only room for further litigation was to preserve
an argument for reversing Buckhannon in the Supreme
Court. Bingham’s attorneys chose instead simply to
ignore the controlling recent authority of the highest Court.
  Pursuant to Federal Rule of Appellate Procedure 38, we
have the authority to award attorneys’ fees and costs to
the District for this appeal. Before awarding such sanc-
tions, however, Rule 38 requires that either the opposing
party file a separate motion for sanctions or that we give
notice that we are considering sanctions. Greviskes v.
Universities Research Ass’n, Inc., 417 F.3d 752 (7th Cir. 2005).
  The decision of the district court is A FFIRMED. We order
the appellants and their counsel to show cause, within
fourteen days, as to why they should not be required,
under Rule 38 of the Federal Rules of Appellate Procedure,
to pay the District’s costs and reasonable attorneys’ fees
on appeal.




                             12-4-08
