Evan Fisher , Aminor , Through His Parents v. District of Columbia , A Municipal Corporation , and Michelle Rhee

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2007 Decided February 8, 2008
No. 07-7012
EVAN FISHER , A MINOR , THROUGH HIS PARENTS
AND NEXT FRIENDS DAVID AND PATRICIA FISHER , ET AL .,
APPELLEES
v.
DISTRICT OF COLUMBIA ,
A M UNICIPAL CORPORATION , AND
M ICHELLE RHEE ,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00738)
Donna M. Murasky, Senior Assistant Attorney General,
Office of Attorney General for the District of Columbia, argued
the cause for the appellants. Linda J. Singer, Attorney General
at the time the brief was filed, Todd S. Kim, Solicitor General,
and Edward E. Schwab, Deputy Solicitor General, were on brief.
Diana M. Savit argued the cause for the appellees.
Before: GINSBURG , Chief Judge, and HENDERSON and
GRIFFITH , Circuit Judges.

-- 1 of 7 --

2
1 The IDEA provides that “the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs . . . to a prevailing party
who is the parent of a child with a disability.” 20 U.S.C.
§ 1415(i)(3)(B)(i)(I).
Opinion for the court filed by Circuit Judge HENDERSON .
KAREN LE CRAFT HENDERSON , Circuit Judge: Appellants
Michelle Rhee, Chancellor of the District of Columbia Public
Schools, et al. (DCPS), appeal the district court’s order requiring
DCPS to reimburse appellees Evan Fisher, a minor, through his
parents and next friends David and Patricia Fisher (collectively
the Fishers) for expert fees incurred in an action brought
pursuant to the Individuals with Disabilities Education Act, 20
U.S.C. §§ 1400 et seq. (IDEA). Although the district court
recognized that the Supreme Court’s holding in Arlington
Central School District Board of Education v. Murphy, 126 S.
Ct. 2455 (2006), and our holding in Goldring v. District of
Columbia, 416 F.3d 70 (D.C. Cir. 2005), established that expert
fees are not “costs” that may be awarded under the IDEA, it
nonetheless ordered DCPS to reimburse the Fishers for expert
fees they incurred because DCPS had a “policy” pursuant to
which it had previously awarded expert fees to prevailing IDEA
parties. For the reasons set forth below, we reverse the district
court’s judgment.
I.
Evan Fisher (Fisher) is a learning disabled student whose
family lives in the District. After partially prevailing at an
IDEA due process hearing, see 20 U.S.C. § 1415, involving the
placement of Fisher at a boarding school in Massachusetts, on
April 18, 2005, the Fishers requested payment of their legal fees
and expenses as “prevailing parties” under the IDEA’s fee-
shifting provision. 1 Only two months earlier—on February 1,
2005—DCPS had issued “Guidelines for the Payment of

-- 2 of 7 --

3
Attorney Fees in IDEA Matters” (Guidelines), providing in
pertinent part:
Consistent with recent judicial decisions and the
provisions of 28 U.S.C. § 1920 . . . , DCPS will pay
reasonable costs incurred for expert/advocate services in
connection with a due process hearing request, where the
parent is determined to be a prevailing party.
DCPS Guidelines for the Payment of Attorney Fees in IDEA
Matters 3-4 (Feb. 1, 2005).
As noted, the Fishers requested reimbursement of $8,399.50
in expert fees. They had earlier appealed in part the hearing
officer’s determination by filing a complaint in district court on
April 12, 2005. In July 2005, the Fishers received notice that
the DCPS Office of General Counsel had approved payment of
$2,965 in expert fees. It disallowed $1,832.50 in fees incurred
for expert services performed before the Fishers requested a due
process hearing, $875 in expert fees for post-hearing work and
$2,727 in expert fees that were not sufficiently described.
On July 26, 2005, this court held in Goldring v. District of
Columbia, 416 F.3d 70 (D.C. Cir. 2005), that expert fees are not
awardable to prevailing parties as “costs” under the IDEA’s fee-
shifting provision. The Fishers nonetheless amended their
complaint on August 2, 2005 to include a claim for full payment
of expert fees (a balance of $5,434.50) incurred in the
administrative proceedings.
The parties subsequently settled the IDEA claim and the
district court approved the settlement on January 10, 2006. As
part of the settlement, the district court retained jurisdiction to
decide the Fishers’ claim for fees and expenses, including their
request for $5,434.50 in unreimbursed expert fees. Although
DCPS argued that the Goldring decision alone precluded an
award of expert fees, the district court stayed its ruling pending
the Supreme Court’s decision in Arlington Central School

-- 3 of 7 --

4
District Board of Education v. Murphy, 126 S. Ct. 2455 (2006).
On June 26, 2006, the Supreme Court held that expert fees are
not recoverable in IDEA actions because “the terms of the IDEA
fail to provide the clear notice that would be needed to attach
such a condition to a State's receipt of IDEA funds.” Id. at 2461.
Citing Arlington Central School District and Goldring, the
district court denied the Fishers’ request for expert fees. Fisher
v. Janey, No. 05-738, slip op. at 5 (D.D.C. Aug. 28, 2006). The
Fishers moved to alter or amend the order pursuant to Federal
Rule of Civil Procedure 60 and the district court eventually
ordered DCPS to reimburse the Fishers the remaining $5,434.50
in expert fees. Fisher v. Janey, No. 05-738, mem. at 2 (D.D.C.
Oct. 4, 2006). The district court explained that “at the time the
plaintiffs litigated their administrative due process case and
submitted their request for reimbursement of attorneys’ fees and
costs, [DCPS] had a policy of paying expert fees to prevailing
parties” and observed that “[p]ursuant to this policy, [DCPS]
granted in part and denied in part plaintiffs’ request . . . stating
that the plaintiffs failed to satisfy the DCPS guidelines for
receiving a reimbursement.” Id. Noting that DCPS “concede[d]
that IDEA does not prohibit a voluntary payment of expert
fees,” the district court ordered DCPS to pay the Fishers the full
amount of expert fees “because plaintiffs have satisfied
[DCPS’s] guidelines for requesting voluntary payment of such
fees.” Id. DCPS filed a timely appeal pursuant to 28 U.S.C.
§ 1291.
II.
We review the district court’s award of expert fees de novo.
Goldring, 416 F.3d at 73 (citing Diamond v. Atwood, 43 F.3d
1538, 1540 (D.C. Cir. 1995)). The IDEA provides that “[i]n any
action or proceeding brought under [the IDEA], the court, in its
discretion, may award reasonable attorneys’ fees as part of the
costs . . . to a prevailing party who is the parent of a child with
a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). As noted, DCPS’s

-- 4 of 7 --

5
2Compare T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469,
481-82 (7th Cir. 2003) (IDEA prevailing party cannot recover expert
fees), and Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1031-33
(8th Cir. 2003) (same), with Murphy v. Arlington Cent. Sch. Dist. Bd.
of Educ., 402 F.3d 332, 337-39 (2d Cir. 2005) (IDEA prevailing party
can recover expert fees); Arons v. N.J. Bd. of Educ., 842 F.2d 58, 62
(3d Cir. 1988) (same).
Guidelines authorized DCPS to pay expert fees “[c]onsistent
with recent judicial decisions.” DCPS Guidelines for the
Payment of Attorney Fees in IDEA Matters 3-4 (Feb. 1, 2005).
Accordingly, DCPS conditioned payment of expert fees on
applicable judicial interpretation of the IDEA fee-shifting
provision.
At the time the Fishers submitted their fee request, the
circuits were split over whether an IDEA prevailing party could
recover expert fees2 and the D.C. Circuit had not yet decided the
issue. See Goldring, 416 F.3d at 73 (“The question whether the
IDEA’s fee-shifting provision—section 1415—enables a
prevailing party to recover expert fees as part of his costs is one
of first impression in our Circuit . . . .”). Our Circuit’s district
court decisions were also divided although most had held that
the fees were recoverable. See Czarniewy v. District of
Columbia, No. 02-1496, slip op. at 8-10, 2005 WL 692081
(D.D.C. Mar. 25, 2005) (allowing award of expert fees); Bailey
v. District of Columbia, 839 F. Supp. 888, 892 (D.D.C. 1993)
(same); Aranow v. District of Columbia, 791 F. Supp. 318, 318
(D.D.C. 1992) (same). But see George v. District of Columbia,
No. 03-1656, mem. at 2 (D.D.C. Mar. 8, 2005) (denying award
of expert fees). According to the Guidelines, then, at the time
the Fishers initially submitted their claim for reimbursement,
“recent judicial decisions” at the district court level indeed
permitted the recovery of expert fees. Both Goldring and
Arlington Central School District subsequently held, however,
that expert fees are not awardable to prevailing parties as “costs”

-- 5 of 7 --

6
3 We find the Fishers’ “arbitrary and capricious” theory opaque for
several reasons. First, the Fishers do not explain whether they are
invoking the federal or the District’s Administrative Procedure Act.
Second, the Fishers do not identify any right to reimbursement aliunde
the IDEA. And that right is not found in the IDEA because, by the
time the Fishers submitted their claim, Goldring and Arlington Central
School District had established that the IDEA does not create such a
under the IDEA’s fee-shifting provision. See 416 F.3d at 75-
77; 126 S. Ct. at 2461. Once the basic assumption upon which
its Guidelines had rested—that it was required to reimburse
expert fees under the IDEA—was held incorrect, DCPS decided
not to reimburse such fees.
The Fishers contend DCPS could not alter its position on
expert fees, at least with respect to their claim, for two reasons.
First, they say DCPS waived its right to deny the Fishers’ claim
by its earlier adoption of the Guidelines requiring
reimbursement and by originally paying the Fishers’ claim in
part. Appellees’ Br. 10-12. But at the time of those events,
DCPS reasonably believed it was required to reimburse expert
fees under the IDEA and expressly conditioned the Guidelines
upon that belief. Once intervening decisions—Goldring and
Arlington Central School District—made clear the IDEA did not
require DCPS to reimburse expert fees, DCPS changed its
position. It did not, therefore, by its actions before the issuance
of Golding and Arlington Central School District “knowingly
and voluntarily relinquish[] its right.” Nat’l Treasury
Employees Union v. Fed. Labor Relations Auth., 399 F.3d 334,
337 n.4 (D.C. Cir. 2005) (quotation omitted).
Second, the Fishers contend DCPS’s about-face was
arbitrary and capricious in violation of “standard principles of
administrative law.” Appellees’ Br. 12. Assuming arguendo
that the Fishers’ complaint can be interpreted as mounting an
Administrative Procedure Act challenge,3 DCPS’s decision

-- 6 of 7 --

7
right. DCPS generously construes the Fishers’ theory to be that the
Guidelines create an independent and enforceable right to fees
irrespective of the IDEA. This leads DCPS to argue that the
Guidelines are, as their name suggests, not enforceable rules.
Because, as we show in the text, DCPS’s denial of reimbursement was
plainly neither arbitrary nor capricious, we need go no further in
analyzing the issue. We will, however, remind the Fishers that, while
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to
include only a “short and plain statement of the claim” and we
construe the complaint liberally, see Barr v. Clinton, 370 F.3d 1196,
1199 (D.C. Cir. 2004), the complaint must “‘give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it
rests,’” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)
(quotation omitted). Even under a liberal reading, the complaint fails
to provide DCPS with notice that the Fishers sought to recover their
expert fees pursuant to an alleged violation of an Administrative
Procedure Act. See Amended Compl. ¶ 54 (“As parties who prevailed
at an administrative due process hearing brought pursuant to the
IDEA, the Fishers are entitled to recover the reasonable attorney’s fees
and expenses incurred in connection with that proceeding.” ).
denying reimbursement was neither arbitrary nor capricious. As
noted, the original reimbursement was predicated on district
court decisions—as the only authoritative “recent judicial
decisions”—allowing an award of expert fees under the IDEA.
Once Goldring and Arlington Central School District were
decided, DCPS was no longer authorized to reimburse
prevailing parties for expert fees; therefore DCPS acted
correctly in denying the Fishers the remainder of their expert
fees in light of the two intervening decisions.
For the foregoing reasons, we reverse the district court’s
judgment.
So ordered.

-- 7 of 7 --