     Case: 15-20079    Document: 00513266158     Page: 1   Date Filed: 11/10/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                  No. 15-20079                    November 10, 2015
                                                                     Lyle W. Cayce
D. G., by and through his mother and Next Friend, LaNisha T.,             Clerk


              Plaintiff - Appellant

v.

NEW CANEY INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                  Appeal from the United States District Court
                       for the Southern District of Texas


Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      In this case, a mother proved in an administrative hearing that a school
district had violated her child’s right to a free appropriate public education by
repeatedly placing him in isolation during school hours. Congress has provided
that the prevailing party in such a hearing may file an action in federal court
to recover reasonable attorneys’ fees. This appeal asks us to decide how quickly
that action must be filed. For the reasons that follow, we REVERSE the
district court’s determination that a party who prevails in an administrative
hearing under the Individuals with Disabilities Education Act (the “IDEA” or
“Act”) must seek attorneys’ fees no later than ninety days after the hearing
officer’s decision.
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                                  No. 15-20079
                               I. BACKGROUND
A. The IDEA
      The IDEA “is a Spending Clause statute that seeks to ensure that ‘all
children with disabilities have available to them a free appropriate public
education.’” Schaffer v. Weast, 546 U.S. 49, 51 (2005) (quoting 20 U.S.C.
§ 1400(d)(1)(A)). To receive federal funding under the Act, each state must
comply with certain conditions, including procedural safeguards set forth in
§ 1415. See 20 U.S.C. § 1412(a), (a)(6)(A). One of these conditions is that each
state must allow “any party to present a complaint . . . with respect to any
matter relating to the identification, evaluation, or educational placement of
[a] child, or the provision of a free appropriate public education to such child.”
Id. § 1415(b)(6)(A). If the matter cannot be resolved through an informal
meeting, complaining parents have a right to an “impartial due process
hearing” conducted by a state or local educational agency, as provided by state
law. Id. § 1415(f)(1)(A), (f)(B)(ii). If a local agency conducts that hearing, “any
party aggrieved by the findings and decision rendered . . . may appeal such
findings and decision to the State educational agency.” Id. § 1415(g)(1).
      After that appeal, or if the forum state has only one level of
administrative review, “[a]ny party aggrieved by the findings and decision
made” at the highest level of administrative review may “bring a civil action”
in state or federal court “with respect to the complaint presented pursuant to
[§ 1415] . . . without regard to the amount in controversy.” Id. § 1415(i)(2)(A).
In 2004, Congress amended the IDEA to add current subparagraph (i)(2)(B),
which reads: “The party bringing the action shall have 90 days from the date
of the decision of the hearing officer to bring such an action, or, if the State has
an explicit time limitation for bringing such action under this subchapter, in
such time as the State law allows.”          Id. § 1415(i)(2)(B).    Prior to that
amendment, the Act did not specify any limitations period for the filing of a
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civil action by an aggrieved party, and courts borrowed statutes of limitations
from state law. See, e.g., Scokin v. Texas, 723 F.2d 432, 436–38 (5th Cir. 1984);
Adler v. Educ. Dep’t, 760 F.2d 454, 456–60 (2d Cir. 1985).
      In 1984, the Supreme Court held that attorneys’ fees were not
recoverable in actions brought to secure rights under the IDEA’s predecessor,
the Education of the Handicapped Act. Smith v. Robinson, 468 U.S. 992, 1009–
13 (1984).    In response, Congress enacted the Handicapped Children’s
Protection Act of 1986, which effectively overruled Smith by authorizing courts
to award attorneys’ fees to prevailing parents or guardians of handicapped
children. Counsel v. Dow, 849 F.2d 731, 734 (2d Cir. 1988). This provision was
made retroactive to permit recovery of fees for actions pending at the time of,
or brought after, Smith. See Handicapped Children’s Protection Act of 1986,
Pub. L. No. 99-372, § 5, 100 Stat. 796 (1986); Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 235 (1995).
      The IDEA as codified includes a paragraph titled “Jurisdiction of district
courts; attorneys’ fees.” 20 U.S.C. § 1415(i)(3). That paragraph provides that
federal district courts “shall have jurisdiction of actions brought under this
section without regard to the amount in controversy.” Id. § 1415(i)(3)(A). It
also states: “In any action or proceeding brought under this section, 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.”           Id.
§ 1415(i)(3)(B)(i)(I). 1 In this context, “a prevailing party is one that attains a
remedy that both (1) alters the legal relationship between the school district
and the handicapped child and (2) fosters the purposes of the IDEA.” El Paso
Indep. Sch. Dist. v. Richard R., 591 F.3d 417, 421–22 (5th Cir. 2009) (citation



      1 A substantially similar attorneys’ fees provision was formerly codified at 20
U.S.C. § 1415(e)(4)(A)–(B), effective to June 30, 1998.
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                                 No. 15-20079
omitted). “An administrative hearing officer’s order provides the requisite
‘judicial imprimatur’ for a party to be considered a ‘prevailing party’ for
attorney’s fee purposes, despite the fact that the administrative hearing officer
does not have the authority to award attorney’s fees.” Id. at 422 n.4.
B. Facts and Proceedings Below
      When his administrative complaint was filed, “D.G.” was a thirteen-year-
old student who received special education services from New Caney
Independent School District (“NCISD”) because of his Attention Deficit
Hyperactivity Disorder and learning disability. On March 2, 2012, D.G. filed
a request for a due process hearing with the Texas Educational Agency,
alleging that NCISD had violated his right to a free appropriate public
education by, among other things, repeatedly isolating and physically
restraining him for no valid educational purpose. In May 2012, a special
education hearing officer conducted a due process hearing, at which D.G. was
represented by counsel.
      On July 3, 2012, the hearing officer issued a thirty-three-page decision
finding that NCISD’s practice of isolating and restraining D.G. for extended
periods of time was not based on peer-reviewed research, was not the least
restrictive appropriate educational placement, did not afford D.G. sufficient
interaction with non-disabled peers, and did not provide D.G. “the basic floor
of opportunity” guaranteed by the IDEA. The hearing officer concluded that
D.G. “was denied a free appropriate public education for the entire 2011–12
school year,” and ordered NCISD to create a new education plan for D.G. that
would, among other goals, “reduc[e] or eliminat[e] isolation and restraint as
punishers,” afford increased opportunities for social interaction, and provide
adequate counseling services.     NCISD did not seek judicial review of the
hearing officer’s decision.


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                                 No. 15-20079
      D.G. sent a letter to NCISD requesting attorneys’ fees on October 29,
2012. On October 31, 2012—120 days after the hearing officer’s decision—D.G.
filed a complaint in the United States District Court for the Southern District
of Texas, seeking attorneys’ fees under § 1415(i)(3)(B). On January 30, 2013,
NCISD moved for summary judgment on the ground that D.G.’s complaint for
attorneys’ fees was time-barred. The district court granted that motion in a
three-page opinion issued on January 8, 2015, and entered judgment against
D.G. This appeal timely followed.
                        II. STANDARD OF REVIEW
      This court reviews a district court’s grant of summary judgment “de
novo, applying the same standard on appeal as that applied below.” Rogers v.
Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 54(a). We review de novo jurisdictional issues including
standing. Nat’l Fed. of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202, 208 (5th
Cir. 2011).
                              III. DISCUSSION
A. Standing
      We first address NCISD’s argument—raised for the first time the
weekend before oral argument—that D.G. lacks Article III standing to pursue
attorneys’ fees because his legal services were provided free of cost by
Disability Rights Texas, a publicly funded advocacy organization. To establish
Article III standing, a plaintiff must show that he suffered an injury-in-fact
that is fairly traceable to the challenged conduct of the defendant and will
likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992). NCISD does not at this stage contest that its conduct
injured D.G. by failing to afford him a free appropriate public education, or
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                                      No. 15-20079
deny that D.G.’s mother is a “prevailing party” authorized to seek fees in a civil
action under the IDEA. See 20 U.S.C. § 1415(i)(3)(B)(i)(I). Rather, NCISD
argues that neither D.G. nor his mother has suffered an Article III injury-in-
fact that could be redressed by an award of attorneys’ fees because neither has
paid or been billed for their attorneys’ legal services.
       This argument lacks merit. NCISD cites no case holding that a plaintiff
lacked standing to seek attorneys’ fees because the fees sought were not paid
by or billed to the plaintiff, or because counsel works for a publicly funded
organization. 2 To the contrary, courts including this one have allowed recovery
of attorneys’ fees “in situations where the client’s attorney has received
payment from a source other than the client.”                Schafler v. Fairway Park
Condominium Ass’n, 147 F. App’x 113, 114 (11th Cir. 2005) (citing Fairley v.
Patterson, 493 F.2d 598, 605–06 (5th Cir. 1974) (affirming award of fees to
attorneys employed by tax-free foundation who would not have received
payment from clients)). And “the Courts of Appeals have held with substantial
unanimity that publicly funded legal services organizations may be awarded
fees.” Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 487 n.31 (1982)
(collecting cases); see, e.g., Eggers v. Bullitt Cty. Sch. Dist., 854 F.2d 892, 899
(6th Cir. 1988) (holding that the IDEA’s predecessor “allow[ed] an award of
attorney’s fees to prevailing parents represented by publicly-funded
attorneys”); Perez v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir. 1978) (“We also



       2 The most relevant case NCISD cites in its motion to dismiss, Emery v. Roanoke City
School Board, 432 F.3d 294 (4th Cir. 2005), is readily distinguishable. There, the Fourth
Circuit held that a student who waited to sue under the IDEA until he was too old to receive
a free appropriate public education presented no redressable injury-in-fact because the IDEA
does not provide for monetary damages, a court could no longer fashion any injunctive relief,
and the plaintiff had expended no funds on his education that could be reimbursed under the
statute. Id. at 299. Here, there is no dispute that D.G.’s parents prevailed in the
administrative hearing, and that the IDEA authorizes courts to award attorneys’ fees to
parents that prevail in such proceedings. 20 U.S.C. § 1415(i)(3)(B)(i)(I).
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                                 No. 15-20079
see no merit in defendant’s argument that attorneys’ fees should not be
awarded because plaintiffs were represented by attorneys of . . . a publicly
funded corporation, and were not charged for the legal services they received.”),
cited with approval in Church of Scientology of Cal. v. Cazares, 638 F.2d 1272,
1291 (5th Cir. 1981). Accordingly, we DENY NCISD’s motion to dismiss for
lack of jurisdiction, and turn to the parties’ merits arguments.
B. Section 1415(i)(2)(B)
      The district court held that D.G.’s fees action was untimely because it
was not filed within ninety days of the hearing officer’s decision. The district
court based this conclusion on the following provisions:
            (2) Right to bring civil action
                  (A) In general
                  Any party aggrieved by the findings and decision
                  made under subsection (f) or (k) who does not
                  have the right to an appeal under subsection (g),
                  and any party aggrieved by the findings and
                  decision made under this subsection, shall have
                  the right to bring a civil action with respect to
                  the complaint presented pursuant to this
                  section, which action may be brought in any
                  State court of competent jurisdiction or in a
                  district court of the United States, without
                  regard to the amount in controversy.
                  (B) Limitation
                  The party bringing the action shall have 90 days
                  from the date of the decision of the hearing
                  officer to bring such an action, or, if the State
                  has an explicit time limitation for bringing such
                  action under this subchapter, in such time as the
                  State law allows.

20 U.S.C. § 1415(i)(2)(A)–(B). Although the hearing officer had no authority to
award attorneys’ fees, the district court concluded that D.G. was aggrieved by
the administrative decision because “he is unrequited of attorney’s fees.” The
district court also stated without elaboration that the location of the IDEA’s
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attorneys’ fees provision in a separate part of the Act “does not change the
result.” On appeal, NCISD primarily defends the district court’s decision that
§ 1415(i)(2)(B) applies to actions seeking only attorneys’ fees. 3
       NCISD does not cite—and we have not found—any other case holding
that § 1415(i)(2)(B) applies to claims for attorneys’ fees. Although no circuit
court has squarely addressed the issue, 4 many district courts have rejected
NCISD’s argument, holding that § 1415(i)(2)(B) applies only to actions filed by
parties seeking judicial review of adverse decisions. 5 Persuaded that this


       3  NCISD’s counsel was unable to identify any record evidence that NCISD informed
D.G.’s mother of its view that an action for attorneys’ fees had to be filed no later than ninety
days after the hearing officer’s decision. See Scokin, 723 F.2d at 438 (“We agree that the
[IDEA predecessor’s] requirement that educational agencies inform parents of all available
procedures includes a duty to inform parents of the limitations period for judicial review.”);
Powers v. Ind. Dep’t of Educ., 61 F.3d 552, 559 (7th Cir. 1995) (holding that state agencies
must provide notice of the limitations period for seeking attorneys’ fees under the IDEA).
Because D.G. does not argue this issue, however, we do not address it.
        4 The Ninth Circuit recently described with apparent approval a district court’s

decision that § 1415(i)(2)(B) does not apply to suits for attorneys’ fees, but articulated no
holding on the issue because on appeal “neither party question[ed] the district court’s
determination that the request for attorneys’ fees is not subject to the 90-day limitations
period.” See Meridian Joint Sch. Dist. No. 2 v. D.A., 792 F.3d 1054, 1062 & n.5 (9th Cir.
2015). NCISD attempts to support its argument that § 1415(i)(2)(B) governs this case with
a footnote in Ruben A. v. El Paso Independent School District, which held that a counterclaim
was not a new “civil action” governed by § 1415(i)(2)(B). 414 F. App’x 704, 707 & n.11 (5th
Cir. 2011) (unpublished). But that footnote’s only authority is an out-of-circuit case that did
not involve a claim for attorneys’ fees. See Jonathan H. v. Souderton Area Sch. Dist., 562
F.3d 527, 530 (3d Cir. 2009) (where student challenged hearing officer’s denial of tuition
reimbursement, school district’s counterclaim challenging other aspect of hearing officer’s
decision was not a new “action”).
        5 See, e.g., J.H. ex rel. Sarah H. v. Nev. City Sch. Dist., No. 2:14-CV-00796-TLN-EFB,

2015 WL 1021424, at *5 (E.D. Cal. Mar. 6, 2015) (“[T]he IDEA does not establish a statute of
limitations to bring a claim for attorneys’ fees in federal court.”); G-N v. City of Northampton,
60 F. Supp. 3d 267, 269 (D. Mass. 2014) (concluding that § 1415(i)(2)(B) applies only to
appeals of adverse due process hearing decisions, not actions for attorneys’ fees); S.F. ex rel.
J.F. v. Cabarrus Cty. Bd. of Educ., No. 1:12CV560, 2013 WL 4552639, at *8 & n.9 (M.D.N.C.
Aug. 28, 2013) (“[N]o statute of limitations is provided under the IDEA for attorneys’ fee
claims.”); Meridian Joint Sch. Dist. No. 2 v. D.A., No. 1:1-cv-00320-CWD, 2013 WL 3270424,
at *13–14 (D. Idaho June 25, 2013) (“[S]everal courts have held, and this Court agrees, that
the 90-day statute of limitations contained in § 1415(i)(2)(B) does not apply to claims for
attorneys’ fees under § 1415(i)(3)(B).”), aff’d, 792 F.3d 1054 (9th Cir. 2015); P.M. ex rel. S.M.
v. Evans-Brant Cent. Sch. Dist., No. 09-CV-686S, 2012 WL 42248, at *4 (W.D.N.Y. Jan. 9,
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                                       No. 15-20079
robust consensus is correct, we hold that the IDEA contains no express statute
of limitations for an action seeking attorneys’ fees.
       “As in any statutory construction case, ‘[w]e start, of course, with the
statutory text,’ and proceed from the understanding that ‘[u]nless otherwise
defined, statutory terms are generally interpreted in accordance with their
ordinary meaning.’” Sebelius v. Cloer, 133 S. Ct. 1886, 1893 (2013) (alterations
in original) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006)).
Section 1415(i)(2)(A) authorizes the filing of a civil action by “[a]ny party
aggrieved by the findings and decision made” in an IDEA due process hearing.
20 U.S.C. § 1415(i)(2)(A).           The next subparagraph, which contains the
limitations period at issue, is full of antecedent-referential language: “The
party bringing the action shall have 90 days from the date of the decision of the
hearing officer to bring such an action, or, if the State has an explicit time
limitation for bringing such action under this subchapter, in such time as the
State law allows.”        Id. § 1415(i)(2)(B) (emphasis added).              This language
suggests that § 1415(i)(2)(B) applies to a type of “action” that the statute has
just described. As a general matter, “[r]eferential and qualifying words and
phrases, where no contrary intention appears, refer solely to the last
antecedent.” 2A Norman Singer & Shambie Singer, Sutherland Statutory
Construction § 47:33 (7th ed. 2014); see also Free v. Abbott Labs., Inc., 164 F.3d
270, 275 n.7 (5th Cir. 1999) (“[A] qualifying phrase in a statute ‘usually is
construed to apply to the provision or clause immediately preceding it.’”
(citation omitted)); The, Oxford English Dictionary (online ed. 2015) (noting
that “the” is generally used to “[m]ark[] an object as before mentioned or


2012) (finding that the addition of § 1415(i)(2)(B) “did not change the applicable statute of
limitations for the purposes of an attorney fees claim”); Wilson v. District of Columbia, 269
F.R.D. 8, 18 (D.D.C. 2010) (“[T]o employ the 90-day limitations period to the plaintiff’s claim
for attorneys’ fees would defy the congressional intent of the statute as evidenced by the plain
language of the statute itself.”).
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already known”); Such, Black’s Law Dictionary (9th ed. 2009) (“That or those,
having just been mentioned.”). The most natural reading of § 1415(i)(2)(B),
then, is that it applies only to actions described in the immediately preceding
§ 1415(i)(2)(A)—those filed by parties “aggrieved by” the administrative
decision—and not to actions filed by prevailing parties seeking attorneys’ fees,
which are described in a subsequent paragraph, § 1415(i)(3).
      Sections 1415(i)(2) and 1415(i)(3) contain separate jurisdictional grants,
and the weight of authority holds that they create two distinct causes of action.
See, e.g., Robert K. v. Cobb Cty. Sch. Dist., 279 F. App’x 798, 800 (11th Cir.
2008) (unpublished) (“[Section] 1415(i)(3)(B)(i)(I) creates a cause of action for
parents to recover attorneys’ fees.”); Zipperer v. Sch. Bd., 111 F.3d 847, 851
(11th Cir. 1997) (“We agree that the IDEA provides two distinguishable causes
of action.”); Moore v. District of Columbia, 907 F.2d 165, 171 (D.C. Cir. 1990)
(holding that former § 1415(e)(4) created a distinct cause of action for
attorneys’ fees and noting the separate jurisdictional grants). Indeed, by the
time Congress enacted current § 1415(i)(2)(B), many courts had applied
different limitations periods to the two types of actions. See, e.g., Ga. State
Dep’t of Educ. v. Derrick C., 314 F.3d 545, 549–52 (11th Cir. 2002) (holding
that thirty-day limitations period in state Administrative Procedures Act
governed actions for substantive judicial review under IDEA, but a longer limit
applied to attorneys’ fees actions); Zipperer, 111 F.3d at 851 (collecting cases);
Shanahan v. Bd. of Educ., 953 F. Supp. 440, 443 (N.D.N.Y. 1997) (same). And
as discussed above, courts have continued to do so after current §
1415(i)(2)(B)’s addition.
      Contrary to the district court’s compressed analysis, it makes little sense
to characterize a party as “aggrieved by” the decision of a hearing officer that
awarded that party all of the relief she sought, merely because the hearing
officer did not order the payment of attorneys’ fees that he had no authority to
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award. See Antkowiak v. Ambach, 838 F.2d 635, 641 (2d Cir. 1988) (noting
that parents who “received precisely the relief they sought from the hearing
officer” could not seek judicial review as parties aggrieved under the IDEA’s
predecessor); Robinson v. Pinderhughes, 810 F.2d 1270, 1273 (4th Cir. 1987)
(“Access to the courts [under former § 1415(e)(2)] is provided only to review
adverse administrative orders, i.e. to the ‘party aggrieved.’” (emphasis added));
see also Richard R., 591 F.3d at 422 n.4 (noting that hearing officers in Texas
have no authority to award attorneys’ fees). As one court has noted, that
characterization “is contradictory—a party cannot have been ‘aggrieved’ and
be said to have ‘prevailed’ in the same action where there was only one
outcome. One term clearly connotes loss while the other indicates victory.”
P.M. ex rel. S.M. v. Evans-Brant Cent. Sch. Dist., No. 09-CV-686S, 2012 WL
42248, at *4 (W.D.N.Y. Jan. 9, 2012). NCISD does not explain why Congress
would have intended “party aggrieved” to encompass such a counterintuitive
meaning in this statute. 6 We thus conclude that § 1415(i)(2)(B) applies only to
actions brought by aggrieved parties seeking judicial review of adverse
administrative decisions, and not to actions brought by prevailing parties
seeking attorneys’ fees.




       6  Writing before the addition of the ninety-day limitations period, the Sixth Circuit
read one of its prior cases as reasoning that “the IDEA had the effect of making a parent who
prevailed in the administrative proceedings with the assistance of counsel an ‘aggrieved’
party, for purposes of 20 U.S.C. § 1415(i)(2), insofar as there was no award of attorney fees.”
King v. Floyd Cty. Bd. of Educ., 228 F.3d 622, 625 (6th Cir. 2000). But the word “aggrieved”
does not even appear in that earlier case, which actually interpreted the predecessor to
current § 1415(i)(2)(A) as providing “that a civil action may be brought . . . only after a party
loses at the administrative hearing.” Eggers, 854 F.2d at 895 (emphasis added). The court in
Eggers then found that the legislative history of the predecessor to current § 1415(i)(3)(B)
was “clear that parents prevailing at the administrative level could bring a separate action
for an award of attorney’s fees.” Id. at 898. Because King cited no other authority for its
“party aggrieved” logic, that case does not persuade us that hearing officers who grant relief
to parents of disabled children aggrieve them by failing to exercise power they do not have.
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      This conclusion flows from the “plain language of the statute itself,”
Wilson v. District of Columbia, 269 F.R.D. 8, 18 (D.D.C. 2010) (rejecting
argument that § 1415(i)(2)(B) applies to fees actions), but to the extent that the
statute could be viewed as ambiguous, legislative history also supports our
view. The Senate Report detailing the amendments that included current
§ 1415(i)(2)(B) explains that the Act as amended
            contains a new provision, . . . which gives a party 90
            days from the date of the decision of the hearing officer
            for appealing a due process hearing decision to State or
            federal district court, or if there is an explicit State
            time limitation set out by State statute or regulation,
            in such time as the State law allows.

S. Rep. No. 108-185, at 42 (2003) (emphasis added). This part of the report
does not mention actions for attorneys’ fees by prevailing parties, and a
separate part of the report explaining amendments to the Act’s attorneys’ fees
provisions does not mention a new limitations period. See id. As courts have
noted, this suggests that § 1415(i)(2)(B) “appl[ies] only to appeals of ‘a due
process decision,’ not other actions, such as those for attorneys’ fees.” G-N v.
City of Northampton, 60 F. Supp. 3d 267, 269 (D. Mass. 2014) (citation
omitted); see also Brandon E. v. Dep’t of Educ., 621 F. Supp. 2d 1013, 1016 (D.
Haw. 2008) (similar).
      NCISD dismisses these arguments and the numerous cases rejecting its
position, contending that they all ignore the “plain text” of the statute—but
NCISD’s reading is strained, not plain. NCISD’s secondary arguments are
equally unavailing. It submits that the IDEA, as Spending Clause legislation,
must contain an express statute of limitations for all actions that can be
brought under it to avoid impermissibly expanding states’ waivers of sovereign
immunity and violating the Supremacy Clause. But NCISD cites no case that
says so, and that could only be right if we and other courts have repeatedly

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overlooked the same constitutional defects in hearing lawsuits against
governmental entities under Spending Clause legislation without explicit
limitations periods. 7 Finally, despite NCISD’s vague assertions, the Supreme
Court’s warnings that attorneys’ fees requests “should not result in a second
major litigation”—articulated in cases involving what type of success makes a
party eligible for fees, and how they should be calculated 8—give us no reason
to adopt an unpersuasive reading of this limitations period’s scope.
       Joining the consensus of courts that have found that § 1415(i)(2)(B) does
not apply to attorneys’ fees actions, we hold that the district court erred when
it applied that provision to dismiss D.G.’s action.
C. Timeliness of D.G.’s Action
       If § 1415(i)(2)(B) does not apply, what limitations period does? If the
cause of action for attorneys’ fees was created after December 1, 1990, the
answer would be four years.              See 28 U.S.C. § 1658(a) (creating default
limitations period for new federal causes of action); Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 380–82 (2004) (explaining the scope of § 1658(a)). But
as noted above, “[t]he cause of action for attorney’s fees [under the IDEA] was
first created in 1986.” City of Northampton, 60 F. Supp. 3d at 269. For older
causes of action with no express limitations period, “[i]t is the usual rule that .



       7  See, e.g., Scokin v. Texas, 723 F.2d 432, 436–38 (5th Cir. 1984) (borrowing two-year
state limitations period in action under the IDEA’s predecessor); Adler v. Educ. Dep’t, 760
F.2d 454, 456–60 (2d Cir. 1985) (similar); see also Hickey v. Irving Indep. Sch. Dist., 976 F.2d
980, 982–84 (5th Cir. 1992) (adopting Texas statute of limitations for personal injury claims
under the Rehabilitation Act); Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164,
1169, 1171–74 (10th Cir. 2015) (noting that the Rehabilitation Act’s sovereign immunity
waiver provision was enacted pursuant to the Spending Clause and borrowing two-year,
personal injury state limitations period for claims under that statute).
        8 See Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health &

Human Services, 532 U.S. 598, 609–10 (2001) (rejecting the “catalyst theory” for awarding
attorneys’ fees under civil rights statutes, and holding that “prevailing party” status requires
some judicial imprimatur); Hensley v. Eckerhart, 461 U.S. 424, 433–37 (1983) (outlining
standards for determining reasonable attorneys’ fees).
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                                        No. 15-20079
. . a court ‘borrows’ or ‘absorbs’ the local time limitation most analogous to the
case at hand.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501
U.S. 350, 355 (1991).          “State limitations periods,” however, “will not be
borrowed if their application would be inconsistent with the underlying policies
of the federal statute.” Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S 355,
367 (1977). Federal law may be borrowed instead “only ‘when a rule from
elsewhere in federal law clearly provides a closer analogy than available state
statutes, and when the federal policies at stake and the practicalities of
litigation make that rule a significantly more appropriate vehicle for
interstitial lawmaking.’” Reed v. United Transp. Union, 488 U.S. 319, 324
(1989) (quoting DelCostello v. Teamsters, 462 U.S. 151, 172 (1983)).
       The district court determined that if § 1415(i)(2)(B) does not apply, the
most analogous state provision is the thirty-day period for appealing an
adverse agency decision under the Texas Administrative Procedures Act. See
Tex. Gov. Code Ann. § 2001.176(a) (West 2015). D.G. asserts that we should
borrow Texas’s two-year general tort statute of limitations, or one of several
other state-law limitations periods for independent causes of action. This
disagreement echoes the split among courts that have decided which statute of
limitations to borrow for IDEA fees actions. 9 The Sixth and Seventh Circuits


       9 NCISD argues for the first time on appeal that, if the court must borrow a statute of
limitations, it could look to Federal Rule of Civil Procedure 54, which provides that a motion
for attorneys’ fees must “be filed no later than 14 days after the entry of judgment” unless a
statute or court order provides otherwise. Fed. R. Civ. P. 54(d)(2)(B)(i). Of the dozens of
cases that have borrowed a limitations period for IDEA fees actions, none of which we are
aware has turned to Rule 54, and we do not either. “[R]esort to state law remains the norm
for borrowing of limitations periods,” and adopting a federal period is a “narrow exception”
reserved for “unusual” cases in which the federal rule is clearly more analogous and more
consistent with statutory policies. Reed, 488 U.S. at 324 (quoting DelCostello, 462 U.S. at
171). This is not one of those rare cases: as courts have recognized, Rule 54(d)(2) is inapposite
because it presupposes a final judgment in federal court and a fees request brought by motion
in the same court, whereas § 1415(i)(3)(B) contemplates the filing of a new civil action in a
new forum. See Brandon E., 621 F. Supp. 2d at 1018 (citing additional cases); see also
McCartney C. ex rel. Sara S. v. Herrin Cmty. Unit Sch. Dist. No. 4, 21 F.3d 173, 175 (7th Cir.
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                                       No. 15-20079
have applied relatively short administrative appeal periods, reasoning that
IDEA fees actions are ancillary to the underlying administrative proceedings. 10
The Ninth and Eleventh Circuits have applied multi-year statutes of
limitations for actions based on a statutory liability, finding short limitations
periods inconsistent with the Act’s policy goals and stressing that unlike an
appeal from an agency decision, an IDEA fees action seeks relief that the
agency below had no authority to award. 11
       We need not deepen this circuit split today. Because even assuming
arguendo that the thirty-day administrative appeal period applies, we agree
with the only circuit to have considered the issue that the time limit for a party
that prevails at an administrative IDEA hearing to seek attorneys’ fees does
not begin to run until the aggrieved party’s time for challenging the hearing
officer’s decision expires. See McCartney C. ex rel. Sara S. v. Herrin Cmty. Unit
Sch. Dist. No. 4, 21 F.3d 173, 175–76 (7th Cir. 1994); see also Dell v. Bd. of
Educ., 32 F.3d 1053, 1063 (7th Cir. 1994). The parties agree that D.G. filed his
action 120 days after the hearing officer’s decision.                 So if a thirty-day
limitations period for the filing of D.G.’s fees action started upon the expiration
of NCISD’s time for challenging that decision—ninety days pursuant to
§ 1415(i)(2)(B)—this suit would be timely.
       The Seventh Circuit’s rule is sound. If a limitations period shorter than
ninety days (such as Texas’s thirty-day administrative appeals period) ran
from the date of the hearing officer’s decision, the prevailing party would have



1994) (“But we are dealing . . . not with a motion for fees, but with an independent lawsuit
seeking fees.”). Further, NCISD identifies no IDEA-specific policy that would make a
fourteen-day limitations period “significantly more appropriate” than any state-law
candidate.
       10 See King, 228 F.3d at 623–27; Powers, 61 F.3d at 555–58; Dell v. Bd. of Educ., 32

F.3d 1053, 1063–64 (7th Cir. 1994).
       11 Meridian Joint Sch. Dist., 792 F.3d at 1063–64 & n.9; Zipperer v. Sch. Bd., 111 F.3d

847, 851–52 (11th Cir. 1997).
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                                  No. 15-20079
to file a new lawsuit seeking fees before the aggrieved party has to decide
whether to challenge the decision in court. And that could burden “courts and
litigants . . . with a blizzard of protective suits filed before the plaintiff knows
whether he has even the ghost of a chance of obtaining relief.” McCartney C.,
21 F.3d at 176. The Ninth Circuit has echoed this concern. See Meridian Joint
Sch. Dist. No. 2 v. D.A., 792 F.3d 1054, 1063–64 (9th Cir. 2015) (criticizing “the
anomalous result that the party that prevailed before the hearing officer would
have to decide whether to file an action seeking attorneys' fees before the party
that lost before the hearing officer decided whether to seek judicial review”).
And in a different IDEA context, we too have criticized rules that would force
parties to “file ‘protective complaints.’” Ruben A. v. El Paso Indep. Sch. Dist.,
414 F. App’x 704, 707 (5th Cir. 2011) (citation omitted).
      In addition to encouraging the filing of protective complaints in an
already-overburdened court system, running a short limitations period from
the time of the hearing officer’s decision would leave little time for parents and
school districts to agree on attorneys’ fees and costs without resorting to
litigation. That would contravene Congress’s intent that IDEA fees and costs
will “[u]sually . . . be agreed to by the public agency,” and that parents will only
sue for fees when “no agreement is possible.” Duane M. v. Orleans Parish Sch.
Bd., 861 F.2d 115, 119 (5th Cir. 1988) (quoting H.R. Rep. No. 99-296, at 5
(1985)).   Although adopting a multi-year limitations period as D.G. urges
would also alleviate these problems, we believe it more prudent to resolve this
case without unnecessarily deepening disagreement among the circuits. See
Staff IT, Inc. v. United States, 482 F.3d 792, 800 (5th Cir. 2007) (“We
acknowledge the existence of the circuit split on this issue, but need not—and
therefore do not—resolve this issue today.”).
      The only arguments NCISD offers against the Seventh Circuit’s rule are
its already-rejected contention that § 1415(i)(2)(B) applies to this action,
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                                  No. 15-20079
authorities discussing entirely different limitations periods, and an inapposite
discussion of “equitable tolling.” And the only other case the parties have
identified that considers this issue adopts the Seventh Circuit’s rule. See Gray
v. Metts, 203 F. Supp. 2d 426, 430 (D. Md. 2002) (“[T]he statute of limitations
for filing a suit for attorneys’ fees as the prevailing party in an IDEA
administrative hearing does not run until the time for appeal has passed.”).
For the above reasons, we hold that the time limit for D.G. to seek attorneys’
fees in this case was at least thirty days, and did not begin to run until ninety
days after the hearing officer’s decision, when NCISD’s time for seeking review
of that decision expired.
                                IV. Conclusion
      The district court erred in applying § 1415(i)(2)(B)’s limitations period to
this action for attorneys’ fees under the IDEA by a party that prevailed at the
administrative level. Because the statute contains no limitations period for
such actions, the district court should have borrowed one from state law. We
need not—and therefore do not—determine which period applies, an issue on
which courts have splintered and congressional action would be welcome. But
we do hold that the limitations period for such an action does not begin to run
until the time for seeking judicial review of the underlying administrative
decision passes, and that D.G.’s action was timely under any limitations period
that could be borrowed. Accordingly, we REVERSE the district court’s grant
of summary judgment and REMAND for the district court to adjudicate the
merits of D.G.’s action for attorneys’ fees.




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