216 F.3d 1 (D.C. Cir. 2000)
Brandon Calloway, et al.,Appellants/Cross-Appelleesv.District of Columbia, et al.,Appellees/Cross-Appellants
No. 99-5215, 99-5216
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 1999Decided June 30, 2000

Appeals from the United States District Court for the District of Columbia(No. 99cv00037)
Steven L. Leifer argued the cause for appellants/cross appellees.  With him on the briefs were Lois McKenna
Henry, Joshua B. Frank, Paul Levy, Beth Goodman, Mathew Bogin, Margaret Kohn,and Paul Dalton.
Edward E. Schwab, Assistant Corporation Counsel, Office  of the Corporation Counsel, argued the cause for appellees/cross-appellants District of Columbia, et al. With him on  the brief were Robert R. Rigsby, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.  Donna M. Murasky, Assistant Corporation Counsel, entered  an appearance.
Alfred Mollin, Attorney, U.S. Department of Justice, argued the cause for appellee/cross-appellant United States of  America. With him on the brief were David W. Ogden, Acting  Assistant Attorney General, Michael Jay Singer, Attorney,  and Wilma A. Lewis, U.S. Attorney.
Before:  Ginsburg, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Separate opinion dissenting in part filed by Circuit Judge  Ginsburg.
Tatel, Circuit Judge:


1
A rider to the District of Columbia  Appropriations Act imposes limits on fees the District may  pay under the Individuals with Disabilities Education Act,  known as IDEA, to attorneys who represent prevailing parties in actions against the D.C. Public Schools.  In this suit by  disabled students and their parents, the district court rejected challenges to the fee cap, finding it neither preempted by  IDEA nor contrary to the Due Process Clause of the Fifth  Amendment.  The district court also held that the rider  restricts only the District's authority to pay attorneys' fees,  not court authority to award fees pursuant to IDEA.  Finding no error, we affirm in all respects.


2
* The Individuals with Disabilities Education Act seeks to  "ensure that all children with disabilities have available to  them a free appropriate public education that emphasizes  special education and related services designed to meet their  unique needs and prepare them for employment and independent living."  20 U.S.C. § 1400(d)(1)(A).  As a condition of  receiving funds under the Act, IDEA requires school districts  to adopt procedures to ensure appropriate educational placement of disabled students.  See 20 U.S.C. § 1413.  In addition, school districts must develop comprehensive plans for  meeting the special educational needs of disabled students. See 20 U.S.C. § 1414(d)(2)(A).  Known as "individualized  education programs," or IEPs, these plans must include "a  statement of the child's present levels of educational performance, ... a statement of measurable annual goals, [and] a  statement of the special education and related services ... to  be provided to the child...."  20 U.S.C. § 1414(d)(1)(A).


3
IDEA guarantees parents of disabled children an opportunity to participate in the identification, evaluation, and placement process.  See 20 U.S.C. §§ 1414(f), 1415(b)(1).  Parents  who object to their child's "identification, evaluation, or educational placement" are entitled to an "impartial due process  hearing," 20 U.S.C. §§ 1415(b)(6), (f)(1), at which they have a  "right to be accompanied and advised by counsel."  20 U.S.C.  § 1415(h)(1).  Parents "aggrieved by" a hearing officer's findings and decision may bring a civil action in either state or  federal court without regard to the amount in controversy.20 U.S.C. § 1415(i)(2).


4
Section 1415(i)(3)(B) of IDEA gives courts authority to  "award reasonable attorneys' fees as part of the costs to the  parents of a child with a disability who is the prevailing  party."  Prevailing parents may also recover fees incurred  during administrative proceedings.  See Moore v. District of  Columbia, 907 F.2d 165 (D.C. Cir. 1990) (en banc).  The  amount of fees awarded "shall be based on rates prevailing in  the community in which the action or proceeding arose for  the kind and quality of services furnished."  20 U.S.C.  § 1415(i)(3)(C).


5
The District of Columbia Public Schools (DCPS) has failed  to meet its obligations under IDEA, a fact no one disputes. In its brief, the United States describes DCPS's situation this  way:


6
By 1998, the District of Columbia School System's ...failure to fulfill its obligations under IDEA reached crisis proportions.  The District had virtually ceased to con-duct timely hearings requested by parents under IDEA and to issue final decisions within the required timelines. Other of its obligations under IDEA were also not beingmet to a significant extent.


7
See also Blackman v. District of Columbia, 185 F.R.D. 4, 5  (D.D.C. 1999) (finding that DCPS's noncompliance with  IDEA has resulted in "significant delays both in the placement of children in appropriate educational settings and in  the provision of crucial medical services, delays that have the  potential to permanently harm the physical and emotional  health of many young children.").  At a June 1997 public  hearing, DCPS identified several factors responsible for its  noncompliance, including "inadequate management[,]....  poor information management systems, lack of staff training,  inappropriate staff allocation and lack of appropriate programs."  Notice of Written Findings and Decision and Compliance Agreement, 63 Fed. Reg. 41370, 41373.  A year later,  the Secretary of Education stated that, after "working with  DCPS over a number of years to address its serious and ongoing failure to comply with the requirements of [IDEA]," he  determined that immediate compliance was "not feasible."Id. at 41371.  The Secretary and DCPS entered into a  Compliance Agreement mandating that DCPS "be in full  compliance with the requirements of [IDEA in] no later than  three years."  Id. at 41374.


8
DCPS's failure to meet the special education needs of its  disabled students has resulted in an exceedingly large number of parental complaints.  The record shows that in 1995,  although DCPS served less than two-thousandths of one  percent of the nation's disabled students, over forty-five  percent of requests for due process hearings nationwide were  made in D.C.


9
Because IDEA authorizes the award of attorneys' fees,  parental complaints have been costly for DCPS.  In fiscal  year 1998, for example, the school district paid over $10 million to attorneys.  That same year, the Washington Post  reported that legal representation of special education students, once "an obscure niche," had developed into a "booming, lucrative industry."  Doug Struck and Valerie Strauss,  Special Ed Law Is Big Business;  Students' Attorneys Collectively Receiving Millions in Fees, The Wash. Post, July 20,  1998, at B7.  Describing special education cases as "easy [to]  win," the Post stated that "when the city's school system is  crying for money to try to build an adequate special education  system--and thereby begin to lessen the flood of legal challenges--these attorney fees rankle school officials who say  the money should be spent on children."  Id.


10
Responding to the concerns expressed in the Post article,  the House Committee on Appropriations, while considering  the District's fiscal year 1999 appropriations request, acted to  stem "the growth in legal expenses ... and the usurping of  resources from education to pay attorney fees."  H.R. Rep.  105-670, at 50 (1998).  The Committee adopted an appropriations rider that, in order to allow DCPS to "focus more  clearly on teaching and learning rather than on litigation and  expensive legal fees," limited the District's fee payments  under IDEA.  Id.  Eventually becoming section 130 of the  1999 D.C. Appropriations Act, the rider imposed caps on both  the hourly rate and total amount of compensation the District  could pay lawyers of parents who prevail in IDEA actions and  proceedings.  See Section 130 of the Omnibus Consolidated  and Emergency Supplemental Appropriations Act of 1999,  Pub. L. 105-277, 112 Stat. 2681 (October 21, 1998) (hereinafter, section 130).  Specifically, section 130 provided that 1999  funds could not be used to pay attorneys' fees in excess of the  amount at which the D.C. Code fixes compensation of attorneys who represent indigent defendants charged with misdemeanors:  $50 per hour and $1,300 overall.  See section 130;D.C. Code Ann. § 11-2604(a);  D.C. Code § 11-2604(b)(1).Section 130 allowed the maximum total payment, but not the  maximum hourly rate, to be waived for "extended or complex  representation."  See section 130;  D.C. Code Ann.  § 11-2604(c).  In its entirety, section 130 reads as follows:


11
None of the funds contained in this Act may be madeavailable to pay the fees of an attorney who represents aparty who prevails in an action, including an administra-tive proceeding, brought against the District of Columbia Public Schools under the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq.) if--


12
(1) the hourly rate of compensation of the attorney exceeds [$50];  or


13
(2) The maximum amount of compensation of the attorney exceeds [$1,300], except that compensation and reimbursement in excess of such maximum may be approved for extended or complex representation in accordance with section 11-2604(c), District of Columbia Code.


14
Congress included a similar rider in the District's fiscal  year 2000 appropriations bill.  Fearful of the rider's impact  on disabled children, President Clinton vetoed the bill.  "In  the long run," the President's veto message explained, "this  provision would likely limit the access of the District's poor  families to quality legal representation, thus impairing their  due process protections provided by ... IDEA."  See District  of Columbia Appropriations Act, 2000--Veto Message from  The President of The United States (H. Doc. No. 106-135),  145 Cong. Rec. H8941, H8942 (Sept. 28, 1999).  Persisting,  Congress included the fee cap (with minor revisions not  relevant to this litigation) in a reenacted FY 2000 appropriations bill.  This time the President signed.  See Section 129,  District of Columbia Appropriations, 2000, Pub. L. No. 106113, 113 Stat. 1501, 1517 (November 29, 1999).


15
Before the enactment of the FY 2000 appropriations bill,  seven disabled children and their parents filed suit against  the District in the United States District Court for the  District of Columbia challenging section 130 of the FY 1999  Appropriations Act.  The families allege that the fee cap  prevents them from retaining qualified legal counsel on a  contingency basis.  One plaintiff unable to find counsel declared:  "I spoke with ... one of the attorneys who specializes in education law ... who informed me that, due to the  passage of Section 130 of the D.C. Appropriations Act, her  firm was no longer able to accept special education cases on a  contingency basis.  She indicated that she was not aware of  any other private attorney in the District of Columbia who  would...."


16
The families mounted two challenges to section 130.  Relying on the Supremacy Clause of Article VI of the Constitution, they argued that section 130--which they referred to as  a "local law"--is preempted by IDEA.  They also argued that  by singling out disabled children residing in the District of  Columbia for unfavorable treatment, section 130 violates the  Due Process Clause of the Fifth Amendment.  Finally, the  families sought a declaratory ruling that section 130 does not  affect a district court's authority to award reasonable attorneys' fees under IDEA.  Pursuant to 28 U.S.C. § 2403(a), the  United States intervened to defend section 130's constitutionality.  The District of Columbia, which joined the United  States' defense of the statute, argued that section 130 amended IDEA, thus barring courts in D.C. from awarding fees in  excess of the amount the District is authorized to pay.


17
Rejecting plaintiffs' challenges to section 130, the district  court granted summary judgment in favor of the District. The court also rejected the District's interpretation of section  130, ruling that the rider had "done nothing to affect the  district court's ability under [IDEA] to base a determination  of reasonable attorneys' fees [on] rates prevailing in the  community."


18
The families now appeal, and the District of Columbia  cross-appeals.  Although the United States defends section  130's constitutionality, it takes no position on the proper  interpretation of the section.  Our review of all issues is de  novo.  See Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994)  ("Our review of the grant of summary judgment is de novo,  applying the same standards as the district court.");  United  States v. Williams-Davis, 90 F.3d 490, 512 (D.C. Cir. 1996)  (applying de novo review to a question of statutory construction).

II.

19
Beginning with the families' appeal, we can easily dispose  of their Supremacy Clause argument.  Because IDEA is  national legislation, the families argue, it preempts under the  Supremacy Clause any state or local legislation that impedes  its accomplishment, such as section 130.  In support, the  families cite Brown v. United States, 742 F.2d 1498, 1502  (D.C. Cir. 1984) (en banc), where we stated that "Congress  frequently enacts legislation applicable only to the District  and.... [a]bsent evidence of contrary congressional intent,  such enactments should be treated as local law, interacting  with federal law as would the laws of the several states."Even assuming the Supremacy Clause applies to Congress  when it legislates for the District under Article I, section 8 of  the Constitution--a proposition for which we have found no  persuasive support--the families' argument suffers from a  fatal weakness:  it requires us to believe that Congress enacted section 130 for the purpose of having it instantaneously  preempted by a statute enacted over a decade earlier.  See  Cipollone v. Liggett, 505 U.S. 504, 516 (1992) ("[T]he purpose  of Congress is the ultimate touchstone of pre-emption analysis.") (internal quotation marks omitted).


20
We turn to the families' equal protection challenge.  They  argue that section 130, by limiting their ability to obtain  counsel and leaving them "powerless to enforce their IDEA  rights," treats them differently from non-D.C. families with  disabled children, in violation of the equal protection guarantee of the Fifth Amendment's Due Process Clause.  See  Bolling v. Sharpe, 347 U.S. 497 (1954) (applying equal protection principles to the District of Columbia through the Due  Process Clause of the Fifth Amendment).  To assess this  claim, we must first determine the appropriate level of scrutiny.  Most laws will survive equal protection challenge if they  bear a rational relationship to a legitimate governmental  purpose.  See Vacco v. Quill, 521 U.S. 793, 799 (1997).  More  searching scrutiny is reserved for laws that either burden a  suspect class or impinge upon a fundamental interest.  See id.  The families urge us to apply heightened scrutiny for two  reasons:  residents of D.C. are themselves a suspect class, and section 130 burdens the educational opportunities of a disadvantaged group, i.e., children with disabilities.


21
This court has twice considered claims that D.C. residents  comprise a suspect class.  The first case, United States v.  Thompson, 452 F.2d 1333 (D.C. Cir. 1971), concerned a  district court's application of D.C. bail provisions to deny  appellant bail pending appeal following his conviction for  violating federal narcotics laws.  Appellant argued that the  D.C. bail provisions applied only to local offenses (ones contained in the D.C. Code) and that because he had been  convicted of a national offense (one contained in the U.S.  Code), his bail application should have been judged by the  more lenient criteria applicable to national offenses in other  jurisdictions.  See id. at 1337-38.  This court agreed, stating  that application of D.C. bail provisions to U.S. Code offenses  would violate the Due Process Clause by treating U.S. code  violations in D.C. differently from such violations in all other  jurisdictions.  See id. at 1340-41.  The opinion contains language that supports the families' position:


22
Minorities can usually protect themselves by playing their role in the political process and forming coalitions with other groups to secure a majority.  But it is sense-less to remit District residents to the political process, since for them there is no political process....  In this context, ... the normal arguments for judicial restraint become no more than hollow shibboleths grotesquelydetached from the logic which once supported them....Therefore, discriminatory classifications affecting District residents must be subjected to the strictest possible review.


23
Id. at 1341 (internal citation omitted).


24
This court next considered the suspect class status of D.C.  residents in United States v. Cohen, 733 F.2d 128 (D.C. Cir.  1984) (en banc).  Sitting en banc, the court departed from the  reasoning of Thompson and applied rational basis review to  uphold a statute requiring civil commitment for D.C. defendants found not guilty by reason of insanity.  See id.  Explaining why the statute did not burden a suspect class, Cohen first noted that the affected group consisted not just of  District residents, but "principally of those who commit  crimes within the District, a class within which ... many  residents of other states ...  are likely to be included...."Id. at 135.  Then, in language relied on by the government in  this case, Cohen said the following:


25
[E]ven if one accepts the thesis that the class in question is residents of the District of Columbia, the mere lack ofthe ballot does not establish political powerlessness, or, if it does, political powerlessness alone is not enough for"suspect class" status.  Minors, for example, are not as uspect class.  It is, in any event, fanciful to consider as"politically powerless" a city whose residents include a high proportion of the officers of all three branches ofthe federal government, and their staffs.


26
Id. (internal citation omitted).


27
According to the families, this language is dicta because  the court interpreted the civil commitment statute as not  classifying on the basis of residence.  The families urge us to  follow Thompson and apply heightened scrutiny to section  130.  We are not so free.  Whatever force Thompson's reasoning about the status of D.C. residents once carried, it has  not survived Cohen.  To begin with, by pointing out that the  civil commitment statute at issue in Cohen applies to anyone  tried in the District, not just to District residents, Cohen  implicitly undermined Thompson, for notwithstanding  Thompson's apparent holding that D.C. residents are a suspect class, the D.C. bail provisions also apply to persons tried  within the District, regardless of residency.  Moreover, Cohen expressly repudiates Thompson's equal protection reasoning.  "We ... disapprove ... the rationale expressed in  [Thompson] that distinctive legislative treatment of the District is 'particularly suspect' and thus requires more than a  rational basis to support it."  Id. at 136 n.12.  Although  Cohen's discussion of the suspect class status of D.C. residents was not critical to its holding--the court had already  recognized that persons tried within the District need not  reside there--its analysis evolved from considerable debate within the court.  A portion of the court's opinion responds to  a concurring opinion's effort to devise a framework by which  differential treatment of D.C. residents would, in certain  circumstances, raise special equal protection concerns.  See  id. at 132 n.10, 136 n.12, responding to id. at 141-50 (Mikva,  J., concurring).  For all of these reasons, a panel of this court  may not now depart from the en banc court's conclusion that  D.C. residents do not comprise a suspect class for equal  protection purposes.


28
In support of their second argument for heightened scrutiny--that section 130 burdens the educational opportunities of  a disadvantaged group--the families rely on Plyler v. Doe,  457 U.S. 202, 223-24 (1982), which applied heightened scrutiny to invalidate a Texas statute denying public education to  children not legally admitted to the United States.  In subsequent cases, however, the Supreme Court limited Plyler to its  facts.  In Kadrmas v. Dickinson Public Schools, the Court  rejected a claim that charging some students a fee for transportation to school triggered heightened scrutiny under Plyler, saying "we have not extended [Plyler's] holding beyond  the unique circumstances that provoked its unique confluence  of theories and rationales."  487 U.S. 450, 459 (1988) (internal  citations and quotation marks omitted).  Those "unique circumstances" are not present here.  In Plyler, the doors to  the public schools were completely closed to children of  undocumented aliens.  See Plyler, 457 U.S. at 205.  Although  section 130 may make it less likely that disabled children will  receive an education that conforms to IDEA, the doors to the  schoolhouse remain open, as they did in Kadrmas.  And the  Supreme Court has made clear that a statute burdening the  educational opportunities of disadvantaged children does not  by that fact alone trigger heightened scrutiny.  See San  Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1  (1973) (applying rational basis review to uphold Texas's use of  property taxes to finance local school districts even though  that funding system resulted in fewer educational opportunities for poor students than for students in districts with  richer tax bases).


29
We thus review the families' equal protection challenge  under the rational basis standard. We ask whether "there is a  rational relationship between the disparity of treatment and  some legitimate governmental purpose."  Heller v. Doe, 509  U.S. 312, 320 (1993).  "On rational-basis review, a ... statute  ... comes to us bearing a strong presumption of validity, and  those attacking the rationality of the legislative classification  have the burden to negative every conceivable basis which  might support it."  FCC v. Beach Communications, Inc., 508  U.S. 307, 314 (1993) (internal citations and quotation marks  omitted).


30
Pointing to The Washington Post article, the District's  brief refers to "evidence of abuse by attorneys in the legal  services process," presumably implying--though never directly so stating--that section 130 was designed to curb excessive  or unjustified fees.  The families and their lawyers resist any  such charges, and at oral argument counsel for the District  conceded that the city has no evidence of attorney misconduct.  The District, moreover, "adopts" the United States'  brief, which argues not that section 130 stemmed from evidence of attorney abuse, but that in view of DCPS's manifest  inability to meet its obligations under IDEA, Congress could  rationally have concluded that "it was more important for the  District to spend its funds on remedying these systemic  defects and providing primary services rather than upon  litigation fees."  According to the government, then, section  130's legitimate governmental purpose is to assist disabled  children in D.C. by allocating additional funds to primary  special education services.  The statute is rationally related to  that objective, we are left to infer, because limiting payments  to attorneys will leave more funds available for direct services.


31
The families raise several reasons to doubt that section 130  will yield the benefits claimed by the government.  As the  families point out, nothing requires DCPS to reallocate section 130 savings to special education services, nor does the  record indicate that such funds have been so reallocated. Rather, the families claim, the District's annual budget has  simply been reduced by the amount of fees saved.  Moreover, section 130 limits attorneys' fees even when paid from sources  other than DCPS's budget;  while the statute caps fees for  both administrative proceedings and court litigation, payments for the latter come from the Corporation Counsel's  Settlement and Judgment fund.  Finally, the families ask,  even if section 130 actually made more funds available for  special education, would any improvements that might flow  from such expenditures outweigh section 130's harmful effects?


32
Whatever the doubts about section 130, "rational-basis  review in equal protection analysis is not a license for courts  to judge the wisdom, fairness, or logic of legislative choices."Heller, 509 U.S. at 319 (internal quotation marks omitted)."The Constitution presumes that, absent some reason to infer  antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention  is generally unwarranted no matter how unwisely we may  think a political branch has acted."  Beach Communications,  508 U.S. at 314.  Moreover, "courts are compelled under  rational-basis review to accept a legislature's generalizations  even when there is an imperfect fit between means and ends."Heller, 509 U.S. at 321.


33
Applying these highly deferential principles, we cannot  conclude that Congress acted irrationally.  Assisting disabled  children is a legitimate governmental purpose.  It is at least  conceivable, moreover, that capping fees will produce additional resources for direct educational services, and that,  despite limiting parents' ability to use litigation as a means of  enforcing IDEA, section 130 will yield a net benefit for  disabled children.  Notwithstanding the doubts of the families  and the President, supra at 8-9, 4-5, that possibility suffices  for the statute to survive rational basis review.

III.

34
In its cross-appeal, the District argues that section 130 not  only prohibits the District from paying attorneys' fees greater  than the prescribed amounts, but also prohibits courts from  awarding such fees.  In resolving this claim, we are guided by the well-settled principle that "[w]hile appropriation acts are  'Acts of Congress' which can substantively change existing  law, there is a very strong presumption that they do not."Building & Construction Trades Dept., AFL-CIO v. Martin,  961 F.2d 269, 273 (D.C. Cir. 1992).  As we have elsewhere  observed, "the established rule [is] that, when appropriations  measures arguably conflict with the underlying authorizing  legislation, their effect must be construed narrowly.  Such  measures have the limited and specific purpose of providing  funds for authorized programs."  Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984) (internal citation  and quotation marks omitted).  Applying this principle, we  agree with the district court that section 130 limits only  District authority to pay fees from FY 1999 appropriations,  not court authority to award fees under IDEA.


35
We begin, as we must, with section 130's plain language:"None of the funds contained in this Act may be made  available to pay the fees of an attorney who represents a  party who prevails in an action ... brought against [DCPS]  under [IDEA]" in excess of $50 per hour or $1,300 total.Note that nothing in section 130 restricts court authority to  award fees under section 1415(i)(3)(B) of IDEA;  the rider  concerns only District authority to pay fees from FY 1999  appropriations.  As the district court observed, section 130  and IDEA regulate different government authorities:  "The  IDEA attorney's fees provision provides the courts with  discretion ... to award reasonable attorneys' fees.  By contrast, section 130 governs the District of Columbia's appropriations and right to pay those fees."


36
To be sure, restricting federal court authority to award fees  might have been one way for Congress to help DCPS address  its special education problems.  It is not our function, however, to determine whether such a limitation would "accor[d]  with common sense and the public weal.  Our Constitution  vests such responsibilities in the political branches."  Tennessee Valley Authority v. Hill, 437 U.S. 153, 195 (1978) (internal  quotation marks omitted);  but see Slip Op. at 4-5 (Ginsburg, J.,  dissenting) (arguing that "common sense tells us" that section 130 is "a limitation upon the district court's authority to  award attorneys' fees").


37
In view of the "very strong presumption" that appropriation acts do not amend substantive law, we face a straightforward question of statutory construction:  has Congress unambiguously expressed an intent to limit court authority to  award fees under IDEA?  When Congress wants to use an  appropriations act to limit court authority, it knows precisely  how to do so.  For example, section 311 of the 2000 Appropriations Act says, "section 5 of the Y2K Act ...  is amended"  to state that "punitive damages in a Y2K action may not be  awarded against an institution of higher education."  Section  311, Consolidated Appropriations Act, 2000, Pub. L. 106-113,  113 Stat. 1501, 1537 (Nov. 29, 1999).  Section 130 contains no  similar limiting language.


38
The District argues that even if section 130 does not  expressly amend IDEA, the appropriations rider nevertheless  represents an implied limit on court authority to award fees.Otherwise, the District claims, section 130 might increase the  District's eventual fee liability by encouraging litigation to  recover fees in excess of section 130's caps.  Repeals by  implication, however, are disfavored--a policy that "applies  with even greater force when the claimed repeal rests solely  on an Appropriations Act."  TVA, 437 U.S. at 190.  "[I]n the  absence of some affirmative showing of an intention to repeal,  the only permissible justification for a repeal by implication is  when the earlier and later statutes are irreconcilable."  Id.  (internal quotation marks omitted).  No irreconcilable conflict  exists here since, as we have pointed out, section 130 and  IDEA are directed at different governmental entities.


39
Like the district court, we recognize the potential incongruity of courts' awarding fees that section 130 prohibits the  District from paying during the same fiscal year.  As the  Supreme Court has made clear, however, reconciling inharmonious statutory directives is Congress' responsibility, not  courts'.  In TVA v. Hill, the Supreme Court faced a situation  similar to this case.  Acting pursuant to the Endangered  Species Act, 16 U.S.C. § 1531 et seq., the Sixth Circuit halted  construction of a nearly completed TVA dam in order to  preserve the critical habitat of the snail darter.  See TVA, 437  U.S. at 168-70.  In the Supreme Court, TVA argued that Congress, by appropriating funds for completion of the dam  after learning that the snail darter had been placed on the  endangered species list, had implicitly amended the Endangered Species Act to allow construction to continue.  See id.  at 189-90.  Disagreeing, the Court explained that "[w]hile it  is emphatically the province and duty of the judicial department to say what the law is, it is equally--and emphatically-the exclusive province of the Congress not only to formulate  legislative policies and mandate programs and projects, but  also to establish their relative priority for the Nation."  Id. at  194 (internal citation and quotation marks omitted).  Just as  the Supreme Court left it to Congress to resolve the incongruity of appropriating funds for a dam that another statute  prohibited, we leave to Congress the resolution of the incongruity in this case.


40
The cases relied on by the dissent do not require a different result.  See Slip Op. at 2-7 (Ginsburg, J., dissenting).In American Federation of Government Employees, AFLCIO v. Campbell, 659 F.2d 157 (D.C. Cir. 1980), we held that  an appropriations rider containing language similar to section  130 "modified pro tanto" a substantive statute.  659 F.2d at  161.  The rider provided that "[n]o ... funds appropriated  for the fiscal year [1979] may be used to pay the salary or pay  of any individual ... in an amount which exceeds [a five and  one-half percent raise] as a result of any adjustments ...  under [the 'prevailing rate' act]."  Pub. L. No. 95-429,  § 614(a), 92 Stat. 1001, 1018 (1978).  Had the prevailing rate  statute been given effect, government employees would have  received raises in 1979 of between seven and twelve percent.Because of the appropriations rider, however, pay increases  that year were limited to five and a half percent.  Government employees "sued to enforce their alleged rights to wage  increases based solely on the ... prevailing rate statute."Campbell, 659 F.2d at 159.  We rejected their claim, concluding that the appropriations act, by including a new ceiling on  wage increases, and "by express reference to the earlier  statute, effectively modified [it]."  Id. at 161.  We thus gave  the appropriations act the effect that its express terms required--limiting pay increases for FY 1979.


41
Observing that section 130 expressly refers to IDEA and  includes a fee schedule, our dissenting colleague relies on  Campbell for the conclusion that Congress intended to modify  IDEA.  See Slip Op. at 3-4 (Ginsburg, J., dissenting).  We  think Campbell and this case are different.  As in Campbell,  we have given the rider the effect that its plain text requires--limiting the District's payment of fees for FY 1999-but this case presents an additional question, one not raised  in Campbell:  in the absence of clear legislative intent, evidenced either through statutory language or legislative history, to amend substantive law, does an appropriations act  funding one governmental entity restrict the substantive authority of a separate entity, indeed a separate branch of  government?  Given the "very strong presumption" that appropriation acts do not amend substantive statutes, neither  section 130's reference to IDEA nor its fee schedule warrants  an inference that an appropriations rider directed at the  District of Columbia restricts the authority of the federal  courts.  Indeed, Congress could hardly have identified the  class of payments affected by section 130 without mentioning  IDEA.  Nor could Congress have limited the District's FY  1999 payments without specifying the amounts of those limits.


42
If, as the dissent claims, section 130's ceiling on payments  and reference to IDEA sufficed to modify IDEA, the existing  presumption would be reversed and replaced with a presumption that appropriation riders do amend substantive law.Under the dissent's theory, Congress could limit the District's  fee payments from particular appropriations without also  restricting court authority to award fees only by adding an  express statement that substantive law remains intact.  That  is not the law of this circuit.


43
National Treasury Employees Union v. Devine, 733 F.2d  114 (D.C. Cir. 1984), is equally distinguishable.  See Slip Op.  at 7 (Ginsburg, J., dissenting).  That case concerned Office  of Personnel Management regulations establishing new personnel policies for federal employees.  Dissatisfied with the  new policies, Congress passed an appropriations rider providing that "[n]one of the funds appropriated under this Act  [funding OPM] shall be obligated or expended to implement, promulgate, administer, or enforce [the OPM regulations]."Devine, 733 F.2d at 116.  The Director of OPM interpreted  the rider to mean that "each federal agency would simply  have to administer and enforce the regulations without OPM's  assistance...."  Id. at 116.  We rejected this interpretation  of the rider, resting our decision on two factors.  First,  because "the express terms of the regulations require[d]  OPM to play a critical and continuing role in their implementation, administration, and enforcement," id. at 119, we doubted whether the regulations could "sensibly ... be effectuated  without OPM's continued participation."  Id. at 120.  Indeed,  we viewed the Director's interpretation of the rider as "abdicating [OPM's] central responsibility for executing, administering, and enforcing civil service rules and regulations."  Id.  at 119 (internal quotation marks omitted).  Second, after  examining the rider's legislative history, we found "clear  indications of Congress' intent" to foreclose significant  changes in personnel management policies.  Id. at 120.


44
Neither factor is present in this case.  To begin with,  because the District plays no role in a court's awarding of  fees, section 130 does not prevent the implementation of  IDEA's fee provision in the same manner as the rider in  National Treasury Employees Union v. Devine impeded  implementation of OPM's regulations.  Nor, for the same  reason, does section 130 produce any "abdication" of District  responsibility.  Moreover, section 130's legislative history  demonstrates no clear congressional intent to amend IDEA.Although the House Appropriations Committee wrote of an  earlier version of section 130 that it would limit "the award of  attorney fees," H.R. Rep. No. 105-670, at 50 (1998), see also  Slip Op. at 4 (Ginsburg, J., dissenting), the Conference Report accompanying the final bill speaks only of "plac[ing] a  limit on the payment of fees to attorneys."  H.R. Conf. Rep.  No. 105-825, at 1116 (1998).  As the Supreme Court has  observed, "[l]egislative materials may be without probative  value, or contradictory, or ambiguous, ... and in such cases  will not be permitted to control the customary meaning of  words...."  United States v. Dickerson, 310 U.S. 554, 562  (1940).


45
To sum up, because we must narrowly construe section 130,  see Donovan, 734 F.2d at 1558, we interpret it to accomplish neither more nor less than its plain text states.  The rider's  express terms restrict District payment of IDEA fees from  FY 1999 appropriations.  We give section 130 precisely that  effect.  If Congress wishes to restrict court authority to  award fees against the District, it may do so either through  the D.C. appropriations bill or through the enactment of  substantive legislation amending IDEA.  But until Congress  demonstrates clear intent to modify substantive law, either  through statutory language or persuasive legislative history,  we presume in accordance with circuit precedent that it did  not use section 130 to limit the power of federal courts to  award fees under IDEA.


46
The decision of the district court is affirmed.


47
So ordered.


48
Ginsburg, Circuit Judge, dissenting in part:


49
I concur in  Parts I and II of the opinion for the Court and in the  judgment in No. 99-5215, rejecting the families' constitutional  challenges.  I dissent from Part III of the opinion and from  the judgment in No. 99-5216 because I believe that for FY  1999 the Congress modified the authority of the district court  to award attorneys' fees under § 615 of the Individuals with  Disabilities Education Act (IDEA), 20 U.S.C. § 1415.

I. Background

50
The Congress reenacted § 615 of the IDEA with considerable revisions in 1997.  See Individuals with Disabilities Education Act Amendments for 1997, Pub. L. No. 105-17, § 101,  110 Stat. 37, 88 (1997).  Section 615 includes the following  provision for attorneys' fees:


51
In any action or proceeding brought under this section,the [district] court, in its discretion, may award reason-able attorneys' fees as part of the costs to the parents ofa child with a disability who is the prevailing party.


52
Id. at 92, codified at 20 U.S.C. § 1415(i)(3)(B).


53
The Congress revisited the subject of attorneys' fees in  IDEA cases two years later when it passed the District of  Columbia Appropriations Act of 1999.  See Omnibus Consolidated and Emergency Supplemental Appropriations Act of  1999, Pub. L. No. 105-277, § 101(c), 112 Stat. 2681 (1998).Section 130 of the 1999 D.C. Appropriations Act provides:


54
None of the funds contained in this Act may be madeavailable to pay the fees of an attorney who represents aparty who prevails in an action, including an administra-tive proceeding, brought against the District of ColumbiaPublic Schools under the Individuals with DisabilitiesEducation Act (20 U.S.C. § 1400 et seq.) if


55
(1) the hourly rate of compensation of the attorneyexceeds the hourly rate of compensation under section11-2604(a), District of Columbia Code [i.e., $50 per hour],or


56
(2) the maximum amount of compensation of the attor-ney exceeds the maximum amount of compensation un-der section 11-2604(b)(1), District of Columbia Code [i.e.,$1,300 total], except that compensation and reimburse-ment in excess of such maximum may be approved forextended or complex representation in accordance withsection 11-2604(c), District of Columbia Code.


57
Obviously, § 130 has some effect upon attorneys' fees  under the IDEA.  The question before us is what effect:  Is  § 130 a limitation for FY 1999 upon the court's pre-existing  authority in § 615 to award attorneys' fees in excess of $50  per hour and $1,300 per case?  Or does it merely "prohibit[ ]  the District from paying during the same fiscal year" any fee  the district court might award in excess of those caps, Slip  Op. at 9-10, thereby leaving the District liable for such awards  after the end of that fiscal year?  Today the court, citing an  interpretive presumption and then declining to address the  evidence offered by the District to overcome that presumption, gives the latter answer.  I would give the former:  § 130  limits the authority of the district court under IDEA § 615  because in § 130 the Congress "by clear implication, if not  express statement, modified pro tanto the previous substantive law."  American Federation of Government Employees  v. Campbell, 659 F.2d 157, 161 (D.C. Cir. 1980).

II. Analysis

58
In Campbell this court held that an appropriations rider  strikingly similar in text and structure to § 130 modified pro  tanto the prior substantive statute to which it referred.There, the plaintiffs were federal employees whose wages  were determined under the "prevailing rate statute," 5 U.S.C.  §§ 5341-5349 (1976 & Supp. III 1979).  That statute required  that wages be "fixed and adjusted from time to time ... in  accordance with prevailing rates," as determined by wage  surveys of the private sector to be conducted by "lead  agenc[ies]."  Id. § 5343(a), (a)(3).


59
The lead agencies had conducted their surveys and recommended wage increases of between 7% and 12% for the  plaintiffs.  See Campbell, 659 F.2d at 159.  Thus, the employing agencies were required by the prevailing rate statute to  order pay raises in this 7%-12% range (except insofar as they may have found the "public interest" required less--a point  not relevant in Campbell or here).  Before the employing  agencies had actually ordered any wage increase, however,  the Congress passed an appropriations rider that provided:


60
No ... funds appropriated for the fiscal year [1979] ...may be used to pay the salary or pay of any individual... in an amount which exceeds [a 5.5% raise] as a resultof any adjustments which take effect during such fiscalyear under ... (3) section 5343 of Title 5 ... if suchadjustment is granted pursuant to a wage survey....


61
Pub. L. No. 95-429, § 614(a), 92 Stat. 1001, 1018 (1978).  The  Civil Service Commission interpreted the rider as prohibiting  the employing agencies from granting any pay increase greater than 5.5%, and the agencies therefore ordered raises of  only that percentage.  See Campbell, 659 F.2d at 159.


62
The plaintiffs argued to this court that the rider did not  modify the prevailing rate statute, and therefore the employing agencies were still required by law to order pay raises in  the 7%-12% range recommended by the lead agencies.  See  id. at 160.  We rejected this argument and concluded that for  the fiscal year the appropriations rider modified the prevailing rate statute, limiting the plaintiffs' salary increase below  the amount that would have been called for under that  statute.  We reached this conclusion based exclusively upon  two elements in the text of the rider, which we accepted as  clearly and unequivocally demonstrating that the Congress  meant to and did modify the preexisting statute.


63
First, the appropriations rider expressly referred to the  prevailing rate statute.  It was upon precisely this basis that  we distinguished Tennessee Valley Authority v. Hill, 437 U.S.  153 (1978), upon which the court relies today, as well as  United States v. Langston, 118 U.S. 389 (1886), which is to  like effect.  See Campbell, 659 F.2d at 160-61 & n.9.  The  importance of an express reference to the preexisting statute  is that it ensures that Members of Congress were aware that  the new legislation would affect the operation of the preexisting statute.  See United States v. Hansen, 772 F.2d 940, 94445 (D.C. Cir. 1985).  The Supreme Court had previously recognized the importance of such a reference (or lack thereof) in TVA v. Hill itself, see 437 U.S. at 189, and two of our  sister circuits have since done so, see United States v. JoyaMartinez, 947 F.2d 1141, 1144 (4th Cir. 1991);  Republic  Airlines, Inc. v. United States Dep't of Transp., 849 F.2d  1315, 1322 (10th Cir. 1988).  But compare Firebaugh Canal  Co. v. United States, 203 F.3d 568, 576 n.4 (9th Cir. 2000)  (express reference "not [ ] meaningful"), with id. at 579  (Trott, J., dissenting) (express reference crucial).


64
Second, in Campbell we noted that the Congress had  "specifically set a ceiling on wage increases" in the appropriations rider, which differentiated the rider from a "mere  failure to appropriate funds."  659 F.2d at 161 n.10.  We  distinguished New York Airways, Inc. v. United States, 369  F.2d 743 (Ct. Cl. 1966), upon this basis.  Again, the Supreme  Court had already drawn the same distinction:  The mere act  of appropriating funds, see TVA v. Hill, 437 U.S. at 190, or of  failing to do so, see Langston, 118 U.S. at 394, says little  about the underlying substantive obligation;  but inclusion in  an appropriations act of a new framework to govern the  substantive obligation indicates that the Congress was modifying the prior statutory framework, see, e.g., United States v.  Mitchell, 109 U.S. 146, 149-50 (1883).  Therefore we concluded that because the "Congress specifically set a ceiling on  wage increases, and directly referred to the prevailing rate  statute as one of the substantive statutes affected by the  appropriations bill," the appropriations rider "contains words  that by clear implication, if not express statement, modified  pro tanto the previous substantive law."  Campbell, 659 F.2d  at 161 & n.10.


65
In § 130 we see the same two textual elements that were  dispositive in Campbell:  It expressly refers to "the fees of an  attorney who represents a party who prevails in an action ...  under the Individuals with Disabilities Education Act (20  U.S.C. § 1400 et seq.)," and it lays out a comprehensive new  framework for determining fees.  As to the second textual  element, this case is an even stronger one than Campbell: Where the appropriations rider in Campbell simply set a cap  on wage increases, § 130 not only sets caps on attorneys' fees but also incorporates a detailed procedure by which a court  may, under specified conditions, waive a cap.  Section 130  thus "contains words that by clear implication, if not express  statement, modif[y] pro tanto the previous substantive law."Campbell, 659 F.2d at 161.*


66
This conclusion drawn directly from the text of § 130 is  also reflected in the legislative history of that provision.  The  District notes that the House Appropriations Committee, in  the only report to discuss § 130 in any detail, stated that  § 130 "limit[s] the award of attorney fees in special education  cases."  H.R. Rep. No. 105-670, at 50 (1998) (emphasis supplied) (discussing predecessor version of § 130 identical in  relevant respects to enacted version).  President Clinton  agreed, both when he signed § 130 into law, see Statement by  President William J. Clinton upon Signing H.R. 4328, 34  Weekly Comp. Pres. Docs. 2108, 2112 (Nov. 2, 1998) ("the Act  also includes language that would cap the award of plaintiffs'  attorneys' fees in [IDEA] cases"), and when he vetoed a bill  containing essentially the same rider the following year, see  District of Columbia Appropriations Act, 2000--Veto Message, 145 Cong. Rec. H8941, H8942 (Sept. 28, 1999) ("[FY  Both the Supreme Court and this court have found that appropriations riders that by their express terms limit or prohibit only  payment may nonetheless alter the underlying substantive obligation and not just its payment.  See United States v. Will, 449  U.S. 200, 205-08, 223-24 (1980);  Campbell, 659 F.2d at 159 n.6;City of Los Angeles v. Adams, 556 F.2d 40, 46 (D.C. Cir. 1977);  see  also Tayloe v. Kjaer, 171 F.2d 343, 344 (D.C. Cir. 1948). 2000 provision identical in relevant part to § 130] would cap  the award of plaintiffs' attorneys' fees in [IDEA] cases")  (emphases supplied).


67
Finally, the District argues that the incongruous and plainly unintended results ensuing from the court's interpretation  suggest that § 130 is a limitation upon the district court's  authority to award attorneys' fees;  common sense tells us the  District is right.  Otherwise, one would have to believe that  the Congress intended awards of attorneys' fees above the  caps to accumulate as IOUs, payable at the end of the fiscal  year when the appropriations rider is no longer operative.  Of  course, the Congress does, not infrequently, decline to appropriate money for an undertaking authorized under prior law. In cases where the prior statute merely authorizes the undertaking, however, no obligation can lawfully be incurred until  funds have been appropriated, see 31 U.S.C. 1341(a);  the  effect in such a case is to postpone until a later date any steps  that actually cause the Government to incur an obligation. This case is entirely different:  Under the court's interpretation of § 130, the District will continue to incur additional  liabilities, which will continue to accumulate while its authority to pay them remains in suspense.


68
The court today does not point to any reason for thinking  the Congress really intended such a peculiar result.  (Nor,  since they chose not to file a brief in the District's cross appeal, do the cross-appellee families suggest any such reason;  nor did the district court.)  There are, to be sure, cases  in which a court has held that the Congress delayed only the  payment and not the underlying incurrence of an obligation,  see, e.g., Langston, 118 U.S. at 394;  but these involve mere  failures to appropriate a sufficient sum where there is no  other indication the Congress intended that the Government  not incur new liabilities, see id., or there is specific legislative  history demonstrating the Congress understood it was not  altering the Government's underlying liability, see New York  Airways, 369 F.2d at 751.  Where, on the other hand, the  Congress has done more than merely fail to appropriate a  sum sufficient to cover an accumulating obligation, the Supreme Court has held that "it is not to be believed that Congress ... was simply appropriating a part of that which it  knew was due."  Belknap v. United States, 150 U.S. 588, 595  (1893);  see also Will, 449 U.S. at 224 ("Congress intended to  rescind [Adjustment Act] raises entirely, not simply to consign them to the fiscal limbo of an account due but not  payable");  cf. National Treasury Employees Union v. Devine, 733 F.2d 114, 120 (D.C. Cir. 1984) (rejecting interpretation of appropriations resolution that would have resulted in  "steady accumulation of unreviewed proposals").


69
As the District points out in its brief, the result of the  court's interpretation of § 130 is in fact more than just  peculiar--it accomplishes the exact opposite of what the  Congress sought to achieve through § 130.  Most IDEA  complaints filed with the District are resolved in an administrative proceeding before the D.C. school system, that is,  without resort to the district court.  Before § 130 was enacted, the District had adopted guidelines under which, as  required by the IDEA, it would award and pay reasonable  attorneys' fees in such cases upon the submission of a proper  fee application;  thus in FY 1998 the District, without any  court involvement, approved and paid $10,400,000 in IDEA  attorneys' fees for administrative proceedings;  during the  same year the District paid only $664,000 in fees awarded by  the court.  When § 130 became effective, however, the District revised its guidelines, in conformity therewith, to preclude any fee application that sought attorneys' fees above  the caps.  In other words, the District interpreted § 130 as  limiting its authority to award as well as to pay attorneys'  fees above the caps during FY 1999--an interpretation the  court today necessarily accepts as correct in the way it tries  to distinguish Campbell, Slip Op. at 11.


70
Limiting awards by the District without limiting awards by  the district court would actually increase the District's fee  liability, however.  A family that prevails in an administrative  proceeding but is denied by the District a "reasonable"  attorneys' fee because the amount exceeds the caps may  simply repair to the district court for an award of fees greater  than what the District can award, see Moore v. District of  Columbia, 907 F.2d 165 (D.C. Cir. 1990) (en banc);  moreover, the district court may include in its uncapped award reasonable fees for the attorneys' fee litigation, see Moore v. District  of Columbia, 674 F. Supp. 901 (D.D.C. 1987) (awarding  $29,357 for IDEA representation and $19,117 for representation in subsequent attorneys' fee litigation before the district  court).  Under the court's interpretation of § 130, therefore,  the Congress not only failed effectively to cap the fees  awarded against the District, it managed to increase the  District's fee liability--as well as the District's expenditures  for its own legal representation--by requiring and enabling  families to go to district court to obtain a higher award.  I do  not think that was what the legislature meant to do or did. See Clinton v. New York, 524 U.S. 417, 430 (1998) (rejecting  interpretation of statute that "would produce an absurd ...  result which Congress could not have intended").


71
The court today reaches the contrary conclusion by way of  the presumption that an appropriations act does not alter  substantive law.  Slip Op. at 9, 9-10, 11.  The Supreme Court  has made clear, however, that a presumption used to interpret a statute is "just that--a presumption [which] may be  overcome" by contrary evidence that provides a "reliable  indicator of congressional intent."  Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984).  In keeping with this  teaching, both the Supreme Court and this court have found  appropriations acts to have modified preexisting substantive  law in the light of evidence from the text, see Campbell, 659  F.2d at 160-61, from legislative history, see, e.g., Will, 449  U.S. at 224, or from the structure of the act, see, e.g.,  Mitchell, 109 U.S. at 149-50;  and, yes, in the light of common  sense as well, see, e.g., Belknap, 150 U.S. at 595;  Devine, 733  F.2d at 120.  The District has sought to overcome the presumption with evidence from all of these sources;  but the  court today, scarcely even acknowledging the District's arguments, relies upon "bare statement[s] of law" instead of  evaluating the evidence to determine whether "the facts ...  present a different picture of congressional intent."  Campbell, 659 F.2d at 160.**


72
The greatest problem for the court is that no matter how it  analyzes § 130 it runs into Campbell.  As for the undoubted  presumption against finding that an appropriations act effects  a substantive modification of law, in Campbell we concluded  unequivocally that the appropriations act repealed pro tanto  the prevailing rate statute, and the presumption was overcome based upon only the two textual elements that are  likewise present in § 130.  As for the undoubted rule that  repeal by implication is disfavored, even if we treat § 130 as  an implied repealer--and I do not believe that either this case  or Campbell involves an implied repealer as exemplified by  the argument urged upon the Court in TVA v. Hill--the  same two textual factors provide the "affirmative showing of  an intent to repeal" required under TVA v. Hill, 437 U.S. at  190.


73
The court today makes one attempt to distinguish Campbell from this case:  In Campbell the employing agency both  granted and paid any wage increase, whereas in this case the  district court awards fees while the District pays them.  Slip  Op. at 9, 11.  That factoid, the court claims, poses a question  in this case that was not present in Campbell:  "in the absence  of clear legislative intent ...  to amend substantive law, does  an appropriations act funding one governmental entity restrict the substantive authority of a separate entity, indeed a  separate branch of government?"  Slip Op. at 11.  Assuming  counterfactually, as the question does, the absence of clear  legislative intent, the answer would of course be no.  In this  case, however, we have the same evidence of legislative intent that we held sufficient in Campbell to show the Congress  meant to modify substantive law.  The real issue lurking in  the court's rhetorical question, then, is not whether evidence  of congressional intent is required but whether such evidence  can ever show that an appropriations act funding one governmental entity is meant to restrict the substantive authority of  another entity.  As a pair of cases from this court demonstrates, the answer is yes, if that is what the Congress  discernably meant the appropriations act to do.


74
In Devine, 733 F.2d at 114, the Office of Personnel Management had issued new personnel regulations less than a  month before the Congress enacted an appropriations rider  stating that "[n]one of the funds appropriated under this Act  [funding the OPM] shall be obligated or expended to implement, promulgate, administer, or enforce the [new OPM  regulations]."  733 F.2d at 116.  Based upon the precise  wording of the rider, the OPM took the position that the rider  "does not prevent any agency other than OPM from implementing, administering and enforcing the regulations within  that agency."  Id. at 116-17.  We rejected that argument for  two reasons, both based expressly upon the intent of the  legislature:  first, the Congress did not intend personnel  regulations to be applied by other agencies without the  OPM's involvement;  and second, "even assuming arguen do  that the regulations could be implemented workably without  further participation by the OPM, it is evident that Congress  intended to prevent this."  Id. at 119-20.


75
In Donovan, 734 F.2d at 1547, the respondent, who had  been cited for a mine safety violation, argued that an appropriations rider prohibiting the Mine Safety and Health Administration (MSHA) from expending appropriated funds to  "enforce any standard, rule, regulation or order under the ...Act" precluded the Government from appealing an adverse  administrative ruling on the mine safety violation.  734 F.2d  at 1557.  We rejected that argument, noting that the Office of  the Solicitor of Labor, which conducted the appeal, was not  funded by the MSHA appropriation.  We did not stop at that  observation, however;  we went on to inquire into what the  Congress intended to accomplish through the rider--as evidenced by the untoward consequences that would ensue if the  appropriations rider were interpreted to amend the preexisting substantive law applicable to another entity:


76
[The appropriations rider] was the beginning of an effort by some members of Congress to shift [certain mining] operations from MSHA to OSHA jurisdiction.  That effort ultimately did not succeed and we think it would be wholly unreasonable to suppose that Congress intended atemporary suspension to wreak the procedural havoc with ongoing appeals that [petitioner] urges.  We inter-pret [the rider] to indicate only Congress' intent that MSHA initiate no new enforcement litigation.


77
Id. at 1558.  Thus, the court did not interpret the rider as  doing anything more than limiting new enforcement actions  by the MSHA because there was no indication that the  Congress had the seemingly unreasonable intent to affect  actions already in the hands of the Solicitor.


78
Although the results in Devine and Donovan look in different directions, they are not in conflict.  Quite the contrary,  the court in each case asked precisely the same question:  Did  the Congress intend an appropriations act that expressly  places limits upon only one governmental entity to limit the  authority of another governmental entity?  In Devine the  court said yes, while in Donovan the court (acting two weeks  later through two of the same judges) said no.  The question  should be the same here as well, and based upon the text of  § 130 and the incongruities that will result from the contrary  interpretation, I think the clear answer is that the Congress  did intend § 130 to modify pro tanto § 615 of the IDEA.***

III. Summary and Conclusion

79
The text of § 130 makes clear that the Congress modified  for FY 1999 the authority of the district court to award  attorneys' fees under § 615 of the IDEA, 20 U.S.C. § 1415.Even if § 130 is analyzed under the rubric of an implied  repealer, the same text provides the clear and manifest  "affirmative showing of an intention to [modify]" required  under TVA v. Hill, 437 U.S. 190.  I therefore dissent from  Part III of the opinion for the Court and from the judgment  in No. 99-5216.



Notes:


*
 That § 130 expressly limits only the "pay[ment]" of IDEA  attorneys' fees raises the possibility--and indeed, as the court  notes, the presumption--that the Congress meant to affect only the  payment and not the award of such fees.  The Supreme Court has  long held, however, that the use of "payment" or a similar term in  an appropriations act does not end a court's inquiry into congressional intent.  See United States v. Dickerson, 310 U.S. 554, 561-62  (1940) ("deny[ing] that such words [prohibiting only payment during  a particular fiscal year] when used in an appropriation bill are  words of art or have a settled meaning" sufficient to end the court's  inquiry into congressional intent).
Both the Supreme Court and this court have found that appropriations riders that by their express terms limit or prohibit only payment may nonetheless alter the underlying substantive obligation and not just its payment. See United States v. Will, 449 U.S. 200, 205-08, 223-24, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980); Campbell, 659 F.2d at 159 n.6; City of Los Angeles v. Adams, 556 F.2d 40, 46 (D.C.Cir.1977); see also Tayloe v. Kjaer, 171 F.2d 343, 344 (D.C.Cir.1948).


**
 For example, the court misreads the Supreme Court's decision  in TVA v. Hill as barring us from considering the District's  extensive and uncontested evidence regarding incongruous outcomes in order to determine what the Congress most likely meant  by § 130.  Slip Op. at 9-10.  The portion of TVA v. Hill quoted by the  court, however, Slip Op. at 10, 9, merely states that after a court  has determined what the Congress commanded in the statute, it  should not use its remedial discretion effectively to nullify that  command by withholding a remedy based upon its own "appraisal of  the wisdom or unwisdom of [the] particular course consciously  selected by the Congress."  Id. at 194.  This rule certainly does not  authorize, let alone require, this court to ignore the District's  arguments about what the statute means in the first place.


***
 The court finds Devine "distinguishable" on the ground that the  legislative history was more clear in that case.  Slip Op. at 11-12. In other words, the court does not dispute that the Congress may  limit the authority of an entity not specifically named in the statute;it seems to think, however, that the court must find a statement to  that effect in the legislative history in order for us so to conclude.  I  think it more appropriate to rely primarily upon the textual elements to which Campbell directs us--all the more confidently in view of the absurd results brought on by the contrary interpretation--and only secondarily upon legislative history.


