                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
DISTRICT OF COLUMBIA,         )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 08-2075 (RWR)
                              )
JOHN A. STRAUS, et al.,       )
                              )
          Defendants.         )
______________________________)


                         MEMORANDUM OPINION

     The District of Columbia (“DC”) unsuccessfully sued attorney

John Straus and his law firm, James E. Brown & Associates,

seeking attorneys’ fees under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1415, claiming that the

District of Columbia Public Schools (“DCPS”) was the prevailing

party in an administrative proceeding that Straus had needlessly

brought and continued.   The defendants now seek attorneys’ fees

under Federal Rule of Civil Procedure 54(d), arguing that DC

acted in bad faith throughout the course of the litigation.

Because the defendants have not established that DC’s efforts

were undertaken in bad faith, their petition for fees will be

denied.

                             BACKGROUND

     In the underlying action, Straus represented a child with

special educational needs who was enrolled in a DC public high
                                 -2-

school.    A DCPS multidisciplinary team referred the child to DCPS

for a psychiatric evaluation.    Because DCPS failed to conduct the

evaluation, Straus filed an administrative due process complaint

on behalf of the child and his legal guardian.    The complaint

sought to have DCPS fund an independent evaluation.    Three

business days after Straus filed the complaint, DCPS authorized

Straus to obtain an independent evaluation at DCPS’ expense.

Thereafter, a hearing officer dismissed the complaint with

prejudice on the ground that DCPS’ authorization mooted the

issue.    The hearing officer added his conclusions that Straus had

filed the complaint without foundation and had groundlessly

maintained the litigation after it became moot.    DC then brought

this action and moved for summary judgment, claiming that DCPS

was the prevailing party in the administrative proceeding and it

therefore was entitled to attorneys’ fees.    However, judgment as

a matter of law was entered in the defendants’ favor because DCPS

was not a prevailing party.    DC appealed the decision, the D.C.

Circuit affirmed, and the defendants now move under Rule 54(d)

for attorneys’ fees, arguing that DC brought and pursued this

action in bad faith and therefore they are entitled to a fee

award.    DC opposes the motion, disputing that defendants have

demonstrated any bad faith.
                                 -3-

                            DISCUSSION

     “In the United States, parties are ordinarily required to

bear their own attorney’s fees -- the prevailing party is not

entitled to collect from the loser.”     Buckhannon Bd. and Care

Home, Inc. v. W. Va. Dep’t of Health and Human Servs.

(“Buckhannon”), 532 U.S. 598, 602 (2001); see also Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).

“Under this ‘American Rule,’ we follow ‘a general practice of not

awarding fees to a prevailing party absent explicit statutory

authority.’”   Buckhannon, 532 U.S. at 602 (quoting Key Tronic

Corp. v. United States, 511 U.S. 809, 819 (1994)).     Numerous

statutes, including the IDEA, provide for an award of attorneys’

fees for the prevailing party.   That party may move under Rule

54(d) for a fees award by specifying “the statute, rule, or other

grounds entitling the movant to the award.”     Fed. R. Civ. P.

54(d)(2)(A), (B)(ii).

     When there is no statutory authorization for such an award,

a court may “consider whether the requested fee award [falls]

within any of the exceptions to the general ‘American Rule[.]’”

Alyeska Pipeline Serv. Co., 421 U.S. at 245.     In Alyeska, the

Supreme Court set forth these common law exceptions, which

include circumstances “where a party has brought an action as a

trustee of a fund or property or to preserve or recover a fund

for the benefit of others in addition to himself” or where the
                                 -4-

non-movant has acted in “bad faith.”   In re Antioch Univ., 482

A.2d 133, 136 (D.C. 1984) (internal quotation marks omitted).

“Legal fees may . . . be levied against a party who has willfully

disobeyed a court order or when the losing party has acted in bad

faith, vexatiously, wantonly, or for oppressive reasons.”     Id.

(internal quotation marks omitted); see also Hall v. Cole, 412

U.S. 1, 5 (1973); Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 219

(D.C. Cir. 1991); Ellipso, Inc. v. Mann, 594 F. Supp. 2d 40, 43

(D.D.C. 2009).   Notwithstanding these exceptions, “courts do not

have ‘roving authority’ to allow counsel fees whenever deemed

warranted.”   In re Antioch Univ., 482 A.2d at 136 (quoting

Alyeska Pipeline Serv. Co., 421 U.S. at 260).

     “Bad faith can support an award of attorneys’ fees in

circumstances where the bad faith (1) occurred in connection with

the litigation, or (2) was an aspect of the conduct giving rise

to the lawsuit.”   Am. Hosp. Ass’n, 938 F.2d at 219.   Bad faith

occurring in connection with the litigation can include “the

filing of a frivolous complaint or meritless motion, . . . or

discovery-related misconduct.”   Id. at 219-20 (internal citations

omitted).   “Bad faith in conduct giving rise to the lawsuit may

be found where ‘a party, confronted with a clear statutory or

judicially-imposed duty towards another, is so recalcitrant in

performing that duty that the injured party is forced to

undertake otherwise unnecessary litigation to vindicate plain
                                  -5-

legal rights.’”   Id. at 220 (quoting Fitzgerald v. Hampton, 545

F. Supp. 53, 57 (D.D.C. 1982)).    Further, “the substantive

standard for a finding of bad faith is ‘stringent’ and

‘attorneys’ fees will be awarded only when extraordinary

circumstances or dominating reasons of fairness so demand.’”

Ass’n of Am. Physicians and Surgeons, Inc. v. Clinton, 187 F.3d

655, 660 (D.C. Cir. 1999) (quoting Nepera Chem., Inc. v. Sea-Land

Serv., Inc., 794 F.2d 688, 702 (D.C. Cir. 1986)).    “[T]he finding

of bad faith must be supported by ‘clear and convincing

evidence[.]’”   Id. (quoting Shepherd v. Am. Broad. Cos., Inc., 62

F.3d 1469, 1476-78 (D.C. Cir. 1995)).    This “‘generally requires

the trier of fact, in viewing each party’s pile of evidence, to

reach a firm conviction of the truth on the evidence about which

he or she is certain.’”   Id. (quoting United States v. Montague,

40 F.3d 1251, 1255 (D.C. Cir. 1994)).

     The defendants advance three main arguments to establish bad

faith.1   The defendants complain that DC’s Attorney General

contacted the press and “provide[d] interviews to the Washington

Post and the City Paper” about filing this case, thereby

“cho[osing] to make this matter a media event[.]”    (Defs.’ Reply

at 3.)    It is hardly a novel concept, much less evidence of bad


1
     The defendants offer no support for their conclusory
allegation that DC brought this litigation based on a baseless
claim (Defs.’ Reply at 4), nor have defendants argued that DC
filed any meritless motions during the course of litigation, or
that DC committed any discovery-related misconduct.
                                -6-

faith, that a jurisdiction’s chief law enforcement officer would

choose to make public his initiatives.    The defendants also argue

that DC had no “interest [in] resolving this matter amicably,

adumbrating that it wanted a decision and thereafter . . .

refus[ing] seriously [to] engage in settlement discussions.”

(Id.)   That a party in litigation chooses to seek a decision on

the merits as opposed to settle the case does not alone establish

bad faith or necessarily reflect an illegitimate litigation

strategy.   Defendants’ final argument –- that DC’s decision to

appeal the judgment against it shows bad faith (id.) –- wholly

lacks merit and warrants no discussion.     DC’s efforts here

reflected zealous, if misguided, advocacy, but the defendants

have made no showing meeting the stringent standards required to

establish bad faith.   Thus, defendants are not entitled to

attorneys’ fees, and their petition for fees therefore will be

denied.

                            CONCLUSION

     Because the defendants fail to make a factual showing of bad

faith by DC, their petition for attorneys’ fees will be denied.

A final, appealable Order accompanies this Memorandum Opinion.

     SIGNED this 12th day of April, 2010.


                                       /s/
                               RICHARD W. ROBERTS
                               United States District Judge
