UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ANGELA PRICE et al., )
)
Plaintiffs, )
)
v ) Civil Case N0. 13-1069 (RJL)
)
DISTRICT OF COLUMBIA, ) E D
) FIL
Def`endant. ) .’UL 3 l mill

M
Clerk, U.S. District & BankruDfCY
MEMORANDUM OPINION Courts for the Disffi€i 07 C@l“mb'@

(July Z@ , 2014) [Dkts. ##8, 12]

This case arises out of the Individuals with Disabilities Education Act ("IDEA").
Plaintiffs seek attorneys’ fees as prevailing parties under the IDEA’s fee shifting
provisions, codified at 20 U.S.C. § l415(i)(3)(B)-(G). Compl. [Dkt. #l]. Defendant
District of Columbia contends that plaintiffs’ counsel already has been compensated at
$90/hour for his work, which is the rate set by the statute under which he was appointed.
Plaintiffs ask the Court to enter summary judgment in their favor awarding over
$10(),000, such that counsel’s total compensation would equal $505/h0ur. Pls.’ Mot. for
Summ. J. at ll [Dkt. #8]; Compl. The District of Columbia cross-1noves for summary
judgment denying plaintiffs further fees. Def.’s Cross-Mot. for Summ. J. and Opp’n to
Pls.’ Mot. for Summ. J. ("Def.’s Cross-Mot.") [Dkt. #12]. Because the statute under
which counsel was appointed sets a mandatory compensation rate, defendant’s motion is

GRANTED and plaintiffs’ motion is DENIED.

BACKGROUND

Plaintiff Ange1a Price is the mother of plaintiff Jerome Parker. Pls.’ Statement of
Mat. Facts Not in Dispute ("Pls.’ Statement of Mat. Facts") ll 1 [Dkt. # lOl. Plaintiff
Lashawn Weems is the parent of D.W. Id. ll 2. Jerome Parker and D.W. were deemed
eligible to receive special education services and related services from the District of
Columbia. Id. ‘ll‘ll 1-2.

l\/ls. Price and l\/Is. Weems each filed an administrative due process complaint
under the IDEA. See 28 U.S.C. § 1415. Pls.’ Statement ofMat. Facts ll 4; Pls.’ Mot. for
Summ. J. at 2. At the time the complaints were filed, Mr. Parker and D.W. were minor
children. Pls.’ Statement of Mat. F acts llll l-2. Mr. Parker reached the age of majority
during the course of his administrative proceeding, but remained eligible for special
education services. Id. ll l.

The Criminal Justice Act ("CJA") authorizes the District of Columbia Superior
Court to appoint counsel in certain cases when a party is financially unable to obtain
adequate representation. D.C. Code §§ 11-26()1 to 2608. Although, as the name
suggests, most of the relevant cases are criminal proceedings, the Act also provides for
representation of any person "who is a juvenile and alleged to be delinquent or in need of
supervision.” D.C. Code § ll-2601. To implement the Act’s directive, the Family Court
Division may appoint attorneys to represent the interests of juveniles in a variety of
proceedings, including in special education proceedings. See, e.g., D.C. Sup, Ct. Admin.
Order 02-15. The CJA further provides, "Any attorney appointed pursuant to this chapter

shall, at the conclusion of the representation or any segment thereof, be compensated at a

2

fixed rate of 390 per hour. Such attorney shall be reimbursed for expenses reasonably
incurred." D.C. Code § ll-2604(a).

The District of Columbia Superior Court appointed Pierre Bergeron to serve as
counsel for Ms. Price, Mr. Parker,l and Ms. Weems in the administrative cases regarding
the Mr. Parker and D.W.’s special education needs. Def.’s Statement of Mat. F acts Not
in Dispute ("Def.’s Statement of Mat. Facts") llll 1-3 [Dkt. #12-3]; Def.’s Cross-Mot.,
Exs. 2, 7 [Dkt. #12-2]. Both proceedings culminated in hearings on the due process
complaints, and in each case, the hearing officer determined that the District of Columbia
Public School System ("DCPS") had denied the child at issue a free and appropriate
public education ("FAPE") as required by the IDEA. Parker Hearing Officer
Determination [Dkt. #8-2]; D.W. Hearing Officer Deter1nination [Dkt. #8-3].

Mr. Bergeron submitted invoices to the DCPS requesting payment of $55,027.94
for Mr. Parker’s case (219.5 hours at $250/hour, Pls.’ Mot. for Summ. J., Ex. 4 [Dkt. #8-
4]) and $15,403.40 for D.W.’s case (61.5 hours at SZSO/hour, plus expenses, Pls.’ Mot.
for Summ. J., Ex. 5 [Dkt. #8-5]). In connection with Mr. Parl<er’s invoice, DCPS sent
Mr. Bergeron an email inquiring whether he was court-appointed counsel. Def.’s Cross-
Mot., Ex. 5 [Dkt. #11-1]. Mr. Bergeron confirmed his court appointment. Pls.’ Response
to Def.’s State1nent of Mat. Facts, Ex. 1 [Dkt. #15-3]. DCPS approved almost all of Mr.
Bergeron’s hours (205.7 for Mr. Parker’s case and 55.4 for D.W.’s case), but

compensated him at a rate of 390/hour rather than his requested $250/hour. Pls.’ Mot. for

l Mr. Bergeron represented Ms. Price until Mr. Parker turned l8 and Mr. Parker thereafter. Pls.’
Statement of Mat. Facts ll 3; Def.’s Statement of Mat. Facts Not in Dispute ("Def.’s Statement of Mat.
Facts") ll 2 [Dkt. #12-3].

Summ. J., Exs. 4-5. ln total, DCPS paid Mr. Bergeron $18,513.00 for his work in Mr.
Parker’s case and $4,996.88 for his work in D.W.’s case (ineluding $10.88 in costs).
Def.’s State1nent of Mat. Facts llll 5, 7.

The IDEA provides that a court may, in its discretion, award "reasonable
attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child
with a disability," subject to certain limitations and exceptions. See 20 U.S.C. §
l4l5(i)(3)(B)-(G). Mr. Bergeron now asks this Court to declare him a "prevailing party”
under the lDEA and direct the District of Columbia to pay attorney’s fees such that his
total compensation is equivalent to 3505/hour Compl. The District of Columbia
maintains that Plaintiffs are entitled to attorneys’ fees only at a rate of 1590/hour Def.’s
Cross-Mot. at 2. The parties cross-move for summary judgment. Pls.’ Mot. for Summ.
J.; Def.’s Cross-Mot.

STANDARD OF REVIEW

Summary judgment is appropriate when "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.
5 6. The moving party bears the initial burden of demonstrating there is no genuine
dispute as to a material fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).
The court must view facts and draw inferences in favor of the non-moving party, z`d., but

the non-moving party may not rely on mere conclusory allegations, Ancz’erson v. Lz'berty

L@bby, mc., 477 u.s. 242, 249 (1986).

ANALYSIS

The parties agree on the essential facts of the case. Defendant does not dispute
that plaintiffs qualify as "prevailing parties" under the IDEA, and plaintiffs do not dispute
that plaintiff"s counsel accepted an appointment under the CJA. lndeed, plaintiffs argue
that, had they not been prevailing parties, the CJA "guarantees that plaintiff s counsel
will receive at least the CJA rate for their work on the matters." Pls.’ Reply in Support of
Summ. J. and Opp’n to Def.’s Cross-Mot. for Summ. .l. ("Pls.’ Reply") at 3 [Dkt. #14].

T he first, and, as it turns out, only, question l must answer is whether Mr. Bergeron is
entitled to fees above the CJA’s statutory rate of 390/hour For the following reasons, l
conclude that he is not.

Court-appointed counsel is much rarer in civil cases than in criminal cases, and
criminal statutes do not provide the same fee-shifting opportunities that some civil
statutes do. Thus, the situation here-in which a court-appointed counsel seeks
attorney’s fees under the statute providing the substantive law for his case-does not
often present itself. The parties have not cited, nor am l aware of, any cases in this or
another Circuit that address the issue. But perhaps that is because other attorneys realize
that court appointment pursuant to a statute that clearly sets a rate of compensation is the
beginning and end of the inquiry.

ln both cases at issue, Mr. Bergeron was appointed by the D.C. Superior Court
Family Court to represent plaintiffs. Def.’s Cross-Mot., Exs. 2, 7. He is a member of and
was selected from a court-forrned Special Education Advocate Panel. See D.C. Sup. Ct.

Ad1nin. Order 10-0l. The Superior Court derives its authority to establish such a panel

5

and appoint panel attorneys in special education cases from the CJA and administrative
orders implementing the CJA’s directive. See D.C. Code § ll-260l; see, e.g., D.C. Sup.
Ct. Admin. Order 02-l5. The CJA is very specific regarding the compensation of
attorneys appointed under it: "Any attorney appointed pursuant to this chapter shall, at
the conclusion of the representation or any segment thereof, be compensated at a fixed
rate of $90 per hour." D.C. Code § 1l-2604(a) (emphasis added). lndeed, the CJA
prohibits attorneys appointed pursuant to its provisions from seeking additional
compensation for their services. "Any person compensated, or entitled to be
compensated, for any services rendered under this chapter who shall seek, ask, demand,
receive, or offer to receive, any money, goods, or services in return therefor from or on
behalf of a defendant or respondent shall be fined not more than $l,000 or imprisoned not
more than one year, or both." D.C. Code § ll-2606(b).

The statutory language is abundantly clear, as is the fact of Mr. Bergeron’s
appointment. When Mr. Bergeron applied to be on the Family Court’s Special
Education Advocate Panel and accepted appointment in these cases, he agreed to
undertake representation pursuant to the CJA. As such, the CJA governs his
compensation in these matters.

Plaintiffs point to language in the appointment orders indicating that appointed
counsel will be paid by the courts pursuant to the CJA only if DCPS does not provide
compensation. Def.’s Cross-l\/Iot., Exs. 2, 7 ("[Tlhe District of Columbia Courts will
compensate the Educational Attorney pursuant to the Criminal Justice Act if he is not

compensated by the District of Columbia Public Schools."). This confirms that the

6

appointment is made pursuant to the CJA, but does not indicate, as plaintiffs claim, that
DCPS is obligated to pay anything higher than the CJA rate when plaintiffs prevail.

Both the CJA and the lDEA attomeys’ fees provisions are directed to providing
competent counsel to individuals who otherwise may not be able to afford it. The two
statutes have different approaches to achieving this goal, but the C.lA’s compensation
system does not conflict with the rationale underlying the IDEA’s attorneys’ fees
provision. Appointed panel attorneys are situated differently from non-appointed special
education attomeys, and the different compensation schemes reflect that. When
appointed to represent a party, counsel does need to expend resources to identify potential
clients and compete for the opportunity to represent them. Appointed panel attorneys are
guaranteed a rate that the D.C. Superior Court system has judged to be sufficient to
attract competent attorneys in these cases, and they are entitled to be compensated for all
of the hours they reasonably expend on a case. D.C. Code § l l-2604(a). ln contrast,
attorneys on contingency seeking fees under the lDEA face the possibility that they will
not be the prevailing party and thus will be foreclosed from any payment, while also
being subject to some stricter statutory limitations on what may and may not be
compensated. 20 U.S.C. § l4l5(i)(3)(B)-(G). lDEA fee-shifting cases carry higher risk
with the possibility of higher reward. Appointment pursuant to the CJA allows a special
education attorney to avoid that risk and collect a guaranteed payment, but forecloses a
greater payoff in the event a case is decided in his favor. This, then, is the arrangement

that plaintiff struck. And these are the rules with which he must abide.

CONCLUSION
For the foregoing reasons, Defendant’s Cross-Motion for Summary Judgment
[Dkt. #12] is GRANTED, and Plaintiff’ s Motion for Summary Judgment [Dkt. #8] is

DENlED. An appropriate order shall accompany this l\/lemorandum Opinion.

l

 l w l

RICHAR§'JTLEON
United States District Judge

