 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 10, 2015                  Decided July 14, 2015

                        No. 14-7106

               JOSEPHINE MCALLISTER, ET AL.,
                       APPELLANTS

                              v.

                  DISTRICT OF COLUMBIA,
                        APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:11-cv-02173)


    Douglas W. Tyrka argued the cause and filed the briefs for
appellants.

     Richard S. Love, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With him on the brief were
Karl A. Racine, Attorney General, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General.

    Before: TATEL and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge TATEL.
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     TATEL, Circuit Judge: The Individuals with Disabilities
Education Act (IDEA) authorizes courts to award “reasonable
attorneys’ fees as part of the costs” to plaintiffs who prevail in
actions brought under the Act. In these consolidated cases,
after prevailing on their IDEA claims, plaintiffs sought
attorneys’ fees, including fees for work performed by a special
education expert employed by their attorney. Concluding that
work performed by experts is noncompensable under IDEA,
the district court denied the motion. For the reasons set forth in
this opinion, we affirm.
                               I.
     Enacted “to ensure that the rights of children with
disabilities and parents of such children are protected,” 20
U.S.C. § 1400(d)(1)(B), IDEA requires that, in exchange for
federal funding, states and the District of Columbia “establish
policies and procedures to ensure . . . that free appropriate
public education, or FAPE, is available to disabled children,”
Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 518
(D.C. Cir. 2005) (internal quotation marks omitted). Parents
who believe a school district has failed to comply with IDEA’s
requirements may sue in state or federal court. Id. at 520–21
(citing 20 U.S.C. § 1415(i)(2)(A)). Should the parents prevail,
the court “may award reasonable attorneys’ fees as part of the
costs.” 20 U.S.C. § 1415(i)(3)(B).
     Plaintiffs in these consolidated cases—parents of children
with special needs in the District of Columbia Public Schools
(DCPS)—brought suit against the school system, alleging
various IDEA violations. After prevailing on all claims,
plaintiffs sought some $386,000 in attorneys’ fees for work
performed by their law firm, Tyrka & Associates. The district
court disallowed more than fifty percent of the requested fees,
including $23,757 for work performed by Sharon Millis, whom
Tyrka identified as a paralegal. The district court, relying on
Millis’s own description of her professional role, as well as its
                                  3
finding in a prior case classifying Millis as an expert,
concluded that Millis had performed as an expert, not a
paralegal, and that fees for her work were therefore
nonrecoverable as part of “reasonable attorneys’ fees.”
McAllister v. District of Columbia, 21 F. Supp. 3d 94, 99, 104
(D.D.C. 2014). The court ultimately awarded plaintiffs
$159,133 in attorneys’ fees.
     Plaintiffs now appeal, challenging only the district court’s
denial of fees for Sharon Millis’s work. We “review[] the
district court’s denial of . . . attorneys’ fees for abuse of
discretion,” but we “examine de novo whether the district court
applied the correct legal standard.” Conservation Force v.
Salazar, 699 F.3d 538, 542 (D.C. Cir. 2012) (internal quotation
marks and citations omitted).
                                II.
     Although “[o]ur legal system generally requires each party
to bear his own litigation expenses,” Congress, in many civil
rights statutes such as IDEA, “has authorized courts to deviate
from this background rule . . . by shifting fees from one party
to another.” Fox v. Vice, 131 S. Ct. 2205, 2213 (2011). In order
to “reimburse[] . . . plaintiff[s] for what it cost . . . to vindicate
civil rights,” such statutes permit courts to reimburse plaintiffs
for their attorneys’ fees and costs. Id. (internal quotation marks
and alterations omitted); see also City of Burlington v. Dague,
505 U.S. 557, 562 (1992) (listing federal fee-shifting
provisions).
     This case requires us to determine precisely which
expenses are recoverable as “reasonable attorneys’ fees as part
of the costs,” 20 U.S.C. § 1415(i)(3)(B), under IDEA’s
fee-shifting provision. Three Supreme Court decisions guide
our analysis.
    In Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989),
the Court considered a request for reimbursement of paralegal
                                4
fees pursuant to 42 U.S.C. § 1988, which, like IDEA,
authorizes recovery of “a reasonable attorney’s fee as part of
the costs.” The Court found it “[c]lear[]” that “‘reasonable
attorney’s fee’ cannot have been meant to compensate only
work performed personally by members of the bar,” but instead
“refer[s] to a reasonable fee for the work product of an
attorney.” Jenkins, 491 U.S. at 285. The Court thus broadly
interpreted “reasonable attorney’s fee” to require
compensation for the work of paralegals, law clerks, and all
“others whose labor contributes to the work product for which
an attorney bills her client.” Id.
     Just three years later in West Virginia University Hospitals
v. Casey, 499 U.S. 83, 92 (1991), the Court clarified that this
broad interpretation of section 1988 does not extend to expert
fees, which have historically been “regarded not as a subset of
attorney’s fees, but as a distinct category of litigation expense.”
In Casey, a statutory and constitutional challenge to Medicaid
reimbursement schedules, plaintiff’s counsel “employed
Coopers & Lybrand, a national accounting firm, and three
doctors specializing in hospital finance to assist in the
preparation of the lawsuit and to testify at trial.” Id. at 85.
Despite the district court’s unchallenged finding that these
services were “essential to presentation of the case,” id., the
Court concluded that “a reasonable attorney’s fee” does not
“embrac[e] fees for experts’ services,” id. at 97 (internal
quotation marks omitted).
     Most recently, in Arlington Central School District Board
of Education v. Murphy, 548 U.S. 291 (2006), the Court for the
first time examined IDEA’s attorneys’ fees provision.
Although the language of that provision is “virtually identical”
to section 1988, the statute at issue in both Jenkins and Casey,
the Court explained that analysis of IDEA’s fee-shifting
provision must take account of the fact that unlike section
1988, which Congress passed as an exercise of its Fourteenth
                                5
Amendment enforcement authority, Congress enacted IDEA
pursuant to the Spending Clause. Id. at 302, 295. “[L]egislation
enacted pursuant to the spending power,” the Court explained,
“is much in the nature of a contract” whereby “in return for
federal funds, the States agree to comply with federally
imposed conditions.” Pennhurst State School & Hospital v.
Halderman, 451 U.S. 1, 17 (1981). As the Court recognized,
“[t]he legitimacy of Congress’ power to legislate under the
spending power thus rests on whether the State voluntarily and
knowingly accepts the terms of the ‘contract.’” Id. (emphasis
added). Accordingly, given that IDEA conditions federal
funding “upon a State’s compliance with extensive goals and
procedures,” the Court explained, we must examine the
propriety of requested attorneys’ fees “from the perspective of
a state official who is engaged in the process of deciding
whether the State should accept IDEA funds and the
obligations that go with those funds.” Murphy, 548 U.S. at
295–96 (internal quotation marks and citations omitted). In this
sense, the Court’s analysis in Murphy differed significantly
from that in Jenkins and Casey. Jenkins and Casey presented
the question whether in enacting section 1988, Congress had
intended to include paralegals (Jenkins) or expert witnesses
(Casey) within the phrase “reasonable attorney’s fee as part of
the costs.” The question in Murphy was not only one of
congressional intent, but also whether state officials deciding
whether to accept IDEA funds “would clearly understand that
one of the obligations of the Act is the obligation to
compensate prevailing parents for expert fees.” Id.

     In Murphy, the parents had, without ever retaining an
attorney, hired their own expert to assist in preparing their case
and sought recovery for those fees. Rejecting the parents’
argument that they could recover the expert’s fees as
“reasonable attorneys’ fees as part of the of costs,” the Court
explained that nothing in IDEA “even hint[s] that acceptance
                                6
of IDEA funds makes a State responsible for reimbursing
prevailing parents for services rendered by experts.” Id. at 297.

     In this case, plaintiffs argue that Murphy is irrelevant
because “Millis was not an independent consultant” or expert.
Pls.’ Br. 7. Instead, plaintiffs contend, Millis’s work is
compensable under Jenkins because her “professional
role . . . perfectly meets the ABA definition of a paralegal/legal
assistant” as “a person, qualified by education, training or work
experience who is employed or retained by a lawyer . . . who
performs specifically delegated substantive legal work for
which a lawyer is responsible.” Pls.’ Br. 7 (emphasis added).
     To be sure, paralegal costs may be recoverable under
IDEA. After all, given that the Court announced its holding in
Jenkins—that section 1988 “clearly” authorizes recovery of
fees for paralegals—before Congress enacted IDEA, and given
that IDEA uses the same language as section 1988, public
officials signing up for IDEA funds were on notice that
prevailing plaintiffs could recover paralegal costs. But we need
not definitively resolve that question because even if the ABA
standard is the controlling definition of “paralegal,” plaintiffs
have failed to show that the district court abused its discretion
in concluding that Sharon Millis did not perform “substantive
legal work.” Pls.’ Br. 7 (emphasis added); see also Role
Models America, Inc. v. Brownlee, 353 F.3d 962, 970, 974
(D.C. Cir. 2004) (plaintiffs seeking attorneys’ fees have “the
burden of establishing the reasonableness of [their] fee
request” and producing supporting documentation containing
“adequate detail [to] show that [an attorney’s] employees
performed suitable tasks.”).
    To begin with, in her own résumé, Millis describes herself
as an “Independent Special Education Advocate/Expert for
Special Education Attorneys/Courts/Parents,” and lists “core
competencies” in, among other things, expert testimony
                               7
regarding special education, special education curriculum
development, and analysis of therapeutic models for special
needs students. Nowhere does the résumé say anything about
legal training or paralegal experience.
     The affidavit submitted by firm founder Douglas Tyrka is
consistent with Millis’s résumé. Although Tyrka describes
every other firm employee as “a fully trained paralegal” trained
by “paralegals and attorneys of the firm,” he calls Millis a
special education professional with forty years of experience.
Douglas Tyrka Aff. ¶¶ 5–9, July 23, 2013. To be sure, the
affidavit also says that Millis “performed all of her work under
the supervision of the firm’s attorneys” and that she “trained
[Tyrka] in the practice of special education law in the District
of Columbia.” Id. ¶ 6. But neither of these statements
demonstrates that Millis herself actually engaged in the kind of
substantive legal work normally undertaken by paralegals.
     Equally significant, the billing records reflect a dramatic
difference between Millis’s work and that of the “fully trained
paralegals.” The paralegals all engaged in traditional paralegal
activities, e.g., making phone calls, maintaining files, and
preparing correspondence, whereas Millis’s work involved
substantive special education tasks, e.g., reviewing
neuropsychological and auditory processing reports,
participating in multidisciplinary team meetings, and testifying
at due process hearings. Tyrka & Associates Billing Records
1–73.
     All of this—Millis’s résumé, Tyrka’s affidavit, and the
billing records—demonstrates that the district court did not
abuse its discretion in concluding that Millis is what she says
she is: a highly experienced special education consultant and
expert.
   At oral argument, plaintiffs’ counsel insisted that the cost
of Millis’s work is nonetheless recoverable under Jenkins
                                 8
because in the field of special education highly specialized
paralegals perform precisely the kind of substantive tasks
undertaken by Millis—work that would otherwise be
performed by attorneys. But “[b]ecause this argument was
raised for the first time at oral argument, it is forfeited.” United
States v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007). In
any event, nothing in the record supports Tyrka’s contention
that Millis’s work is the type of work that paralegals now
perform in the field of special education. And especially
important in light of Murphy, plaintiffs have provided no
evidence that public officials signing up for IDEA funds
“would clearly understand that one of the obligations of the Act
is the obligation to compensate prevailing parents” for
“paralegals” like Millis. Murphy, 548 U.S. at 296.
     Plaintiffs next contend that even if Millis performed as an
expert instead of a paralegal, Murphy still does not bar
recovery for two separate reasons. First, according to plaintiffs,
Murphy dealt only with the question whether the “cost of an
independent, non-lawyer consultant was . . . reimbursable as a
litigation ‘cost,’” and thus “has very little to do” with a case
such as this where a lawyer retained Millis and billed her time
as part of attorneys’ fees. Pls.’ Br. 7. Essentially, plaintiffs
argue that Murphy deals only with costs, and that because
IDEA mentions both costs and attorneys’ fees, the decision has
no applicability where, as here, plaintiffs seek to recover the
cost of an expert as part of attorneys’ fees. In Murphy,
however, the Supreme Court expressly rejected this argument,
holding that IDEA “does not say that a court may award ‘costs’
to prevailing parents; rather, it says that a court may award
reasonable attorneys’ fees ‘as part of the costs.’” Murphy, 548
U.S. at 297 (emphasis added). “This language,” the Court
observed, “simply adds reasonable attorney’s fees to the list of
costs that prevailing parents are otherwise entitled to recover.”
Id. And having rejected the argument in Casey that an award of
“a reasonable attorney’s fee as part of the costs” includes
                              9
expert fees, the Court in Murphy concluded that it could not
“hold that the relevant language in the IDEA unambiguously
means exactly the opposite of what the nearly identical
language . . . was held to mean in Casey.” Id. at 302. Read
together, Murphy and Casey thus foreclose recovery of expert
fees entirely.
    Second, plaintiffs argue that Millis’s work is compensable
because “[u]nlike the Murphy plaintiffs, [they] did not retain
Ms. Millis separately,” but instead she “was employed by [a
law firm], where she worked directly under lawyer
supervision.” Pls.’ Br. 7. Again, plaintiffs ignore what Murphy
requires: Whether independently employed by plaintiffs
(Murphy) or hired by a law firm (this case), plaintiffs must
demonstrate that “IDEA gives [states] unambiguous notice
regarding liability for expert fees.” Murphy, 548 U.S. at 301.
Neither in the district court nor here have plaintiffs even
attempted to satisfy that requirement.

                             III.
     For the foregoing reasons, we affirm the judgment of the
district court.
                                                  So ordered.
