(CA-99-707) G, etc. v. Fort Bragg Dependent Schools

Filed: August 21, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1845
(CA-99-707)
G, etc.,
Plaintiff - Appellant,
versus
Fort Bragg Dependent Schools, et al.,
Defendants - Appellees.
O R D E R
The court further amends its opinion filed March 25, 2003, and
amended August 6, 2003, as follows:
On the cover sheet, section 6 -- the status line is corrected
to begin “Affirmed in part and reversed and remanded in part by
published opinion....”
On page 3, first paragraph, lines 9-13 -- the final sentence
of the paragraph is deleted and is replaced with the following:
We further conclude that the district court erred in
finding that G was not entitled to any attorneys’ fees
because he was not the prevailing party on any issue, and
we therefore reverse the district court’s determination
of that issue and remand for reconsideration. Finally,
we affirm the district court’s denial of prejudgment
interest on the reimbursement award.

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- 2 -
On page 23, section III -- the section is deleted and is
replaced with the following:
For the foregoing reasons, the judgment of the district
court is affirmed in part and reversed and remanded in
part for further proceedings consistent with this
opinion.
On page 23, closing line -- the final line of the opinion is
deleted and is replaced with “AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART.”
For the Court
/s/ Patricia S. Connor
Clerk

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Rehearing granted and
opinion amended by order
filed 8/6/03

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Filed: August 6, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1845
(CA-99-707)
G, etc.,
Plaintiff - Appellant,
versus
Fort Bragg Dependent Schools, et al.,
Defendants - Appellees.
O R D E R
The court amends its opinion filed March 25, 2003, as follows:
On pages 22-23, part II.D. is deleted and is replaced with the
following:
Finally, G argues that the district court erred in
refusing to grant him prejudgment interest on the
reimbursement award. The district court determined, in
ruling on a motion to reconsider its earlier judgment,
that prejudgment interest should not be awarded because
the plaintiffs were not the prevailing party, and that
because the reimbursement award "did not make the
plaintiffs whole under their theory of the case," an
award of prejudgment interest would not serve to complete
an award that made G "almost whole." (J.A. at 210.) A
district court's denial of an award of prejudgment
interest is reviewed for abuse of discretion. Mary Helen
Coal Corp. v. Hudson, 235 F.3d 207, 210 (4th Cir. 2001)
(noting that "the award of prejudgment interest is within
the discretion of the district court"); Quesinberry v.
Life Ins. Co. of North America, 987 F.2d 1017, 1030 (4th
Cir. 1993) (en banc) ("ERISA does not specifically
provide for pre-judgment interest, and absent a statutory

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21FBDS concedes, and we agree, that 10 U.S.C.A. § 2164, discussed above, provides a general waiver of sovereign
immunity in IDEA actions. See 10 U.S.C.A. § 2164(f)(1)(C).
mandate the award of pre-judgment interest is
discretionary with the trial court"). G asserts that
failure to award prejudgment interest rendered the
reimbursement award inadequate to make G's education
"free" within the meaning of the term "free appropriate
public education" in the IDEA and that "[i]t is unjust to
allow [FBDS] an involuntary interest-free loan from [G's
parents]." (Br. of Appellant at 14.) FBDS asserts that
the district court did not abuse its discretion in
determining that no award of prejudgment interest was
warranted.
Although not raised by FBDS until its petition for
rehearing, we now address the question of sovereign
immunity. See Medina v. United States, 259 F.3d 220,
223-24 (4th Cir. 2001) (noting that sovereign immunity is
jurisdictional in nature, and failure to raise the issue
does not prevent the court from considering it). A
waiver of sovereign immunity does not permit an award of
interest against the government unless that waiver
expressly extends to interest. See Library of Congress
v. Shaw, 478 U.S. 310, 314 (1986) (“In the absence of
express congressional consent to the award of interest
separate from a general waiver of immunity to suit, the
United States is immune from an interest award.”); see
also Gatlin Oil Co., Inc. v. United States, 169 F.3d 207,
213 (4th Cir. 1999). 21 Congress has not waived the
sovereign immunity of the United States with respect to
awards of prejudgment interest in actions under the IDEA.
No provision in § 2164, nor in any part of the IDEA,
contains such an express waiver. Accordingly, sovereign
immunity bars an award of prejudgment interest against
the United States. The district court’s rejection of
prejudgment interest is therefore affirmed.
For the Court
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
G, by his parents, SSGT RG, USAF,
and AG, and on their own behalf,
Plaintiff-Appellant,
v.
FORT BRAGG DEPENDENT SCHOOLS;
DEPARTMENT OF DEFENSE DOMESTIC
DEPENDENT ELEMENTARY AND No. 01-1845
SECONDARY SCHOOLS; FRANK CLEARY,
Superintendent of Fort Bragg
Dependent Schools, in his official
capacity; RITA SHUPE, Director of
Exceptional Children's Program, in
her official capacity,
Defendants-Appellees.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
William A. Webb, Magistrate Judge
(CA-99-707)
Argued: May 6, 2002
Decided: March 25, 2003
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
____________________________________________________________
Affirmed in part and reversed and remanded in part by published
opinion. Judge Williams wrote the opinion, in which Judge Luttig
and Judge Michael joined.
____________________________________________________________

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COUNSEL
ARGUED: Paul Lawrence Erickson, LAW FIRM OF PAUL L.
ERICKSON, P.A., Asheville, North Carolina, for Appellant. Gary
Lee Bergosh, Special Assistant United States Attorney, Raleigh,
North Carolina, for Appellees. ON BRIEF: John Stuart Bruce,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellees.
____________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
G, a child with autism in the Fort Bragg Dependent Schools
(FBDS), appeals from a district court's1 order in this action under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A.
§§ 1400 et seq. Specifically, G appeals from the district court's order
(1) holding that the Individualized Education Program (IEP) proposed
by FBDS in April 1997 met the governing standard under the IDEA;
(2) refusing to order "compensatory education" on the basis of
FBDS's asserted failure to provide G with an education meeting that
standard during the 1994-1996 school years; (3) finding that he was
not a prevailing party for attorneys' fees purposes; and (4) refusing
to grant him prejudgment interest on an award of reimbursement of
educational expenses.2 Because we are unable, based on the parties'
____________________________________________________________
1 By consent of the parties, the district court referred this case to a mag-
istrate judge to conduct all proceedings pursuant to Federal Rule of Civil
Procedure 73 and 28 U.S.C.A. § 636. For clarity, the magistrate judge is
referred to throughout this opinion as the district court.
2 All of the relevant conduct in this case took place before the enact-
ment of Congress's amendments to the IDEA in 1997. Accordingly, the
pre-amendment version of the IDEA is applicable here. Sellers v. School
Bd. of Manassas, 141 F.3d 524, 526 n.2 (4th Cir. 1998). The amend-
ments recodified and/or altered slightly several of the sections of the
IDEA cited in this opinion, but we refer throughout this opinion to the
provisions as codified prior to those enactments, unless otherwise noted.
The amendments would not, we believe, make any difference in the out-
come of this case.
2

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arguments on appeal and the record in the district court, to determine
whether the district court properly found that the April 1997 IEP met
the governing standard, we reverse the district court's conclusion on
that issue and remand for further proceedings. We likewise conclude
that the district court erred in holding that, as a matter of law, G's
request for an award of compensatory education was barred, and
accordingly we reverse and remand the district court's rejection of
that claim for reconsideration. We further conclude that the district
court erred in finding that G was not entitled to any attorneys’ fees
because he was not the prevailing party on any issue, and we therefore
reverse the district court’s determination of that issue and remand for
reconsideration. Finally, we affirm the district court’s denial of
prejudgment interest on the reimbursement award.
I.
A.
A brief overview of the relevant law and administrative processes
will put the subsequent discussion of the issues in this appeal in con-
text. Under the IDEA, states that receive federal funds for education
must provide to all students with disabilities a "free appropriate public
education." As defined in the IDEA, a "free appropriate public educa-
tion" (FAPE) includes both instruction designed to suit the needs of
the disabled child and "related services," 20 U.S.C.A. § 1401(a)(18),
which include "such developmental, corrective, and other supportive
services . . . as may be required to assist a child with a disability to
benefit from special education," § 1401(a)(17).3
The primary vehicle for delivery of a FAPE to students with dis-
abilities is the IEP. School districts are required under the IDEA to
create an IEP for each student with a disability. IEPs are to be devel-
oped for all students with disabilities through cooperation between
parents and school officials. 20 U.S.C.A. § 1414(a)(5). The IEP must
state, inter alia, the student's current educational status, annual goals
for the student's education, the special education services and other
supplementary aids and services to be provided to the student, and the
____________________________________________________________
3 It is undisputed that G is a "child with a disability" within the mean-
ing of 20 U.S.C.A § 1401(a)(1).
3

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extent to which the student will be participating in mainstream
classes. § 1401(a)(20).
The IDEA establishes a series of procedural safeguards "designed
to ensure that the parents or guardian of a child with a disability are
both notified of decisions affecting their child and given an opportu-
nity to object to those decisions." MM ex rel. DM v. Sch. Dist. of
Greenville County, 303 F.3d 523, 527 (4th Cir. 2002) (internal cita-
tion omitted). Parents have the right to participate in their child's edu-
cational evaluation and the development of his IEP,4 id., and to
receive written prior notice before any change in (or any refusal to
change) the evaluation or IEP. § 1415(b)(1)(C). In the event that a
parent is dissatisfied with the school's actions, § 1415(b)(1)(E) pro-
vides that parents must have "an opportunity to present complaints
with respect to any matter relating to the identification, evaluation, or
educational placement of the child, or the provision of a free appropri-
ate public education to such a child." § 1415(b)(1)(E). In turn,
§ 1415(b)(2) provides a right to a due process hearing "where a com-
plaint has been received" under § 1415(b)(1)(E).
G is a student in FBDS, a school system operated by the United
States Department of Defense. Supervision of Department of Defense
schools is conducted by school boards elected by parents of students
attending the schools, and ultimately by the Secretary of Defense. See
10 U.S.C.A. § 2164(d)(1) (providing that the Secretary of Defense
"shall provide for the establishment of a school board for Department
of Defense elementary and secondary schools established at each mil-
itary installation under this section"); § 2164(d)(4)(A) (providing that
"[a] school board elected for a school under this subsection may par-
ticipate in the development and oversight of fiscal, personnel, and
educational policies, procedures, and programs for the school, except
that the Secretary may issue any directive that the Secretary considers
necessary for the effective operation of the school or the entire school
system"). Due process hearings and appeals are conducted for chil-
dren in these schools by independent hearing officers (IHOs)
____________________________________________________________
4 Under the current version of the IDEA, parents are part of an IEP
team which creates the IEP for a student. The IEP team also includes a
representative of the school district, the child's teacher, and where appro-
priate, the child himself. 20 U.S.C.A. § 1414(d)(1)(B) (West 2000).
4

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appointed by the Director of the Directorate for the Defense Office of
Hearings and Appeals (DOHA), and by the DOHA Appeal Board (the
Appeal Board), respectively. 32 C.F.R. Pt. 80, App. C, ¶¶ B, D, F.
B.
G is the son of a Sergeant in the United States Air Force, stationed
at Pope Air Force Base in Fayetteville, North Carolina. Born in April
1992, G began receiving special education in FBDS schools when he
was approximately 2 1/2 years old. Because G is a child with autism
and thus considered disabled under the IDEA, an IEP was developed
for G when he first was enrolled at FBDS for the 1994-1995 school
year,5 and at the conclusion of each school year thereafter. As
required by the IDEA, 20 U.S.C.A. §§ 1401(a)(20), 1414(a)(5), the
IEPs stated goals for G's education for the year and laid out the type
and quantity of instruction he was to receive.
Around the end of the 1995-1996 school year, concerned that G did
not appear to be progressing in the development of appropriate behav-
iors and skills, G's mother attended a conference on the "Lovaas"
method.6 After some further research, G's mother communicated to
____________________________________________________________
5 The educational plan developed for G covering the 1994-1995 school
year was actually an "Individualized Family Service Plan" (IFSP)
because he was not yet three years old, the age at which the IDEA calls
for IEPs to be developed for students with disabilities. See 20 U.S.C.A.
§ 1477(a)-(d). An IFSP is a plan of the services to be provided an infant
or toddler with a disability and is thus very similar to an IEP. Id. The
procedures for development and implementation of an IFSP, as well as
the procedural safeguards guaranteeing parents' rights, are likewise very
similar to those relating to an IEP. Accordingly, we will for simplicity's
sake refer to the 1994-1995 IFSP as an IEP.
6 The Lovaas method is a methodology for the education of children
with autism developed by Dr. O. Ivar Lovaas at UCLA. The Lovaas
method "involves breaking down activities into discrete tasks and
rewarding a child's accomplishments." MM ex rel. DM v. School District
of Greenville County, 303 F.3d 523, 528 n.8 (4th Cir. 2002). While it
"has been widely modified over the years by professionals and parents,
. . . common characteristics include intensive training one-on-one, 30-40
hours per week, discrete trial therapy (DTT), and an in-home component
5

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G's teachers and others within FBDS that she felt the Lovaas method
held great promise for G.
In May of 1996, FBDS proposed an IEP for G for the 1996-1997
school year closely resembling that in effect during the 1995-1996
school year. The proposed IEP did not include any Lovaas techniques
or methods, and G's mother rejected it. Instead, beginning in the sum-
mer of 1996, G's parents took steps to have the Lovaas method pro-
vided for G in their home by private consultants certified in its
implementation.7 To pay the cost of the program, G's parents
launched an ambitious fundraising effort, eventually raising over
$37,000 from community sources. In October of 1996, shortly after
the beginning of the regular school year, the Lovaas consultant who
had been working with G prepared a document entitled "IEP Goals,"
listing goals for the following nine months. The document recom-
mended that G continue to receive the complete Lovaas therapy at
home.
G's parents kept him home from school at the beginning of the
1996-1997 school year, providing the complete Lovaas therapy at
home. Because of his continued absence, FBDS administratively
withdrew G from its student roster in October 1996. In November
1996, G's parents wrote a letter to the school requesting that the
____________________________________________________________
(as opposed to therapy in a professional setting)." Dong v. Board of Ed.
of Rochester Community Schools, 197 F.3d 793, 797 (6th Cir. 1999).
G's mother attended a conference on the Lovaas method at the recom-
mendation of specialists in the "TEACHH" (Treatment and Education of
Autistic and Related Communication-handicapped Children) program at
the University of North Carolina, who had evaluated G when he was
2 1/2 pursuant to a referral from the Case Study Committee convened by
FBDS to review G's educational needs. (J.A. at 83-84.) The TEACHH
evaluation was performed at FBDS's expense.
7 The district court found, and the parties do not dispute, that a consul-
tant must have "nine months of full-time internship plus two years of
clinical site visits" to receive Lovaas certification. (J.A. at 163.) For ease
of reference, the Lovaas program as provided to G in his home by his
parents and aides in consultation with a Lovaas-certified consultant will
be referred to in this opinion as "the complete Lovaas therapy."
6

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school provide funding for G to continue receiving the complete
Lovaas therapy at home at a cost of roughly $19,000 per year.
With no affirmative response forthcoming from FBDS, G's parents
continued to fund the complete Lovaas therapy in their home from
private sources. Four-year-old G made significant progress in several
areas, including verbally imitating some sounds, using eating utensils,
and dressing himself. The district court found that "by the time [the
IHO] made his ruling [in December 1997], G had progressed to the
point where he should be gradually transitioning to a school class-
room in the near future." (J.A. at 163.) The record thus suggests that
G's educational progress from 1996 to 1998 was significant.
In April of 1997, in consultation with G's mother, FBDS again pro-
posed an IEP for G, this time for the 1997-1998 school year. G's
mother rejected the IEP because, although on paper it contained the
elements — that is, the instructional methods and activities — of the
complete Lovaas therapy it did not provide for the complete Lovaas
therapy, omitting in particular the participation of a Lovaas-certified
consultant.
C.
G's parents first requested a due process hearing in a letter dated
May 16, 1997.8 (J.A. at 13A.) In the letter, G's mother stated that "the
Fort Bragg School System has failed to provide a Free and Appropri-
ate Public Education for our child in accordance with [the IDEA], 32
C.F.R. Part 80, and other applicable laws. Our son attended the Fort
Bragg School System from October 1994 to July 1996. During this
time period, our son's educational gains were minimal." (J.A. at 13A.)
She requested in the letter "that the Fort Bragg School System be
required to provide the education my child is entitled to under the
aforementioned laws." (J.A. at 13A.)
After the due process hearing, the IHO concluded that during the
1994-1995, 1995-1996, and 1996-1997 school years, FBDS had failed
____________________________________________________________
8 While the formal request for a due process hearing was made in May
1997, the IHO, the Appeal Board, and the district court all found that G's
parents' complaints were first raised in their letter of November 1996.
7

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to provide G a FAPE under the IDEA. Based on this finding, it
ordered FBDS to reimburse G's parents for the costs they had
incurred since initiating funding of the complete Lovaas therapy in
their home in the summer of 1996 (costs that the IHO determined to
be slightly more than $30,000) and to fund the complete Lovaas ther-
apy as it was being provided to G in his home through July 1999.
FBDS appealed to the Appeal Board, which found that the IHO had
erred in granting relief relating to the 1994-1995 and 1995-1996
school years because G's parents had not properly raised claims for
relief relating to those years.9 The Appeal Board further found that the
April 1997 IEP was appropriately calculated to provide G with a
FAPE and that the IHO erred in granting reimbursement to G's par-
ents for money they spent outside of the period from November 1996
to April 1997, because November 1996 was the date on which G's
parents first raised their FAPE claims, and April 1997 was the date
on which the deficiencies in the provision of a FAPE were cured.
Accordingly, the Appeal Board reduced the award of reimbursement
ordered by the IHO to $11,117.06. Finally, the Appeal Board found
that the IHO had exceeded the bounds of permissible relief in order-
ing the complete Lovaas therapy to be provided through July 1999.
To impose such a requirement on FBDS, the Appeal Board found,
would usurp the responsibilities of both FBDS and G's parents under
the IDEA to reevaluate, at least annually, the appropriateness of G's
educational plan. The Appeal Board found the April 1997 IEP, incor-
porating the approach of the Lovaas method, was sufficient to cure
the earlier failure to provide a FAPE and thus struck down the IHO's
prospective relief involving the complete Lovaas therapy.
G's parents then filed a civil action in the United States District
Court for the Eastern District of North Carolina pursuant to 20
U.S.C.A. § 1415(e), arguing that the Appeal Board had erred in
reducing the reimbursement award and eliminating the prospective
Lovaas therapy required by the IHO's order. They also added claims
for attorneys' fees as the prevailing party and for prejudgment interest
____________________________________________________________
9 The Board's conclusion that G had not raised claims relating to the
1994-1996 school years was apparently the result of its having been pro-
vided an incomplete version of G's original complaint, which did contain
claims relating to those years.
8

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on their reimbursement award. FBDS argued that the Appeal Board
had not erred and furthermore that FBDS had provided a FAPE dur-
ing the period for which reimbursement was ordered (the 1996-1997
school year). The district court concluded that FBDS had offered a
FAPE in the April 1997 IEP, but that FBDS had not offered a FAPE
during the 1996-1997 school year. The district court found the
Board's award of $11,117.06 in reimbursement relating to the 1996-
1997 school year appropriate and awarded G that amount, but it
denied the prospective relief G sought, attorneys' fees, and prejudg-
ment interest. G timely noted this appeal.
II.
G argues on appeal that the district court erred in finding that the
April 1997 IEP offered a FAPE; that the district court erred in deny-
ing him relief in the form of a prospective "compensatory education"
award — including funding of the complete Lovaas therapy, involv-
ing a Lovaas-certified consultant — for FBDS's failure to provide a
FAPE during the 1994-1995 and 1995-1996 school years; that the dis-
trict court erred in denying him an award of attorneys' fees; and that
the district court erred in denying prejudgment interest on the reim-
bursement award it granted him for the 1996-1997 school year.10
Before turning to G's particular arguments, a brief overview of our
review standards in the IDEA context is warranted. In an action under
the IDEA, "a reviewing court is obliged to conduct a modified de
novo review, giving `due weight' to the underlying administrative
proceedings." MM, 303 F.3d at 530-31 (citing Bd. of Educ. v. Rowley,
458 U.S. 176 (1982), and Doyle v. Arlington County Sch. Bd., 953
F.2d 100, 103 (4th Cir. 1991)). Further, "findings of fact made in
administrative proceedings are considered prima facie correct, and if
a reviewing court fails to adhere to them, it is obliged to explain
why." MM, 303 F.3d at 531. But "we need not defer to factual recita-
tions made by a district court from the administrative record, because
____________________________________________________________
10 FBDS has not appealed the district court's reimbursement award and
makes no attempt to challenge the conclusion on which that award was
based — to wit, that FBDS failed to provide G a FAPE during the 1996-
1997 school year.
9

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that court stands in no better position than we do in reviewing the
record."11 Id.
Where the administrative proceedings are two-tiered and "the Hear-
ing Officer and Reviewing Officer have reached the same conclusion,
a reviewing court is obliged to accord greater deference to their find-
ings." Id. (citing Combs v. Sch. Bd. of Rockingham County, 15 F.3d
357, 361 (4th Cir. 1994)). On the other hand, where a reviewing offi-
cer or board reaches a factual conclusion opposed to one reached by
the hearing officer but in doing so departs from the normal process
of fact-finding, its decision may be entitled to little or no deference.
Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105-06 (4th Cir.
1991).
A. The April 1997 IEP
G first contends that the district court erred in finding that the April
1997 IEP proposed a FAPE. Whether an IEP is "`appropriate' for pur-
poses of the IDEA" (i.e., whether it meets the relevant statutory defi-
nition of a FAPE) is a question of fact in our circuit. DiBuo v. Bd. of
Ed. of Worcester County, 309 F.3d 184, 188 n.8 (4th Cir. 2002).
After reviewing the April 1997 IEP's terms, the district court con-
cluded that "[t]he school cured its deficiencies [in the May 1996 IEP]
at the April 1997 IEP meeting and [in the] subsequently-issued plan
. . .," and thus offered G a FAPE. (J.A. at 183.) In reaching this con-
clusion, the district court noted that the April 1997 IEP "reflected sig-
nificant modifications and changes made to address concerns
expressed by [G's] mother after submission of the November 18,
1996 letter." (J.A. at 183 (quoting Appeals Board opinion).) G asserts
that the district court erred in employing the federal FAPE standard
rather than the more stringent state standard, and further, assuming
the district court applied the correct law, that it erred in finding the
April 1997 IEP sufficient under the federal standard because FBDS
____________________________________________________________
11 The district court in an action brought under the IDEA "shall hear
additional evidence at the request of a party." 20 U.S.C.A.
§ 1415(i)(2)(B)(ii). If the district court hears and considers additional
evidence, we review its findings of fact for clear error. MM, 303 F.3d at
531. The district court heard no new evidence in this case.
10

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did not have personnel with the training or experience necessary to
implement the IEP.
1. Inapplicability of the North Carolina Standard
Under § 1401(a)(18)(B) a FAPE is defined as including "special
education and related services that . . . meet the standards of the State
educational agency . . . ." 20 U.S.C.A. § 1401(a)(18)(B). The
Supreme Court held in Rowley that
a court's inquiry in suits brought under [§ 1414(e)(2)] is
twofold. First, has the State complied with the procedures
set forth in the Act? And second, is the individualized edu-
cational program developed through the Act's procedures
reasonably calculated to enable the child to receive educa-
tional benefits? If these requirements are met, the State has
complied with the obligations imposed by Congress and the
courts can require no more.
458 U.S. at 206-07 (emphasis added); see also id. at 201 (noting that
the IDEA's FAPE definition, via its incorporation of "related ser-
vices," "expressly requires the provision of "such . . . supportive ser-
vices . . . as may be required to assist a handicapped child to benefit
from special education") (emphasis in Rowley ). Thus, federal law
establishes a minimum "baseline" of educational benefits that states
must offer students with disabilities. States are free, however, to set
a higher standard for provision of educational services to those stu-
dents, and North Carolina has taken this approach.12
____________________________________________________________
12 North Carolina General Statutes section 115C-106(a) states that it is
the policy of the State of North Carolina . . . to ensure every
child a fair and full opportunity to reach his full potential and
that no child [with special needs] shall be excluded from service
or education for any reason whatsoever.
N.C. Gen. Stat. § 115-106(a) (Lexis 1999) (emphasis added). We have
interpreted this section as requiring more than the "free appropriate pub-
lic education" required under federal law. See In re Conklin, 946 F.2d
306, 318 (4th Cir. 1991) (stating, with respect to section 115C-106, that
"within the State of North Carolina, it has been recognized that state law-
11

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G argues that the North Carolina standard governs the services
FBDS must provide because FBDS's schools are located in North
Carolina and thus North Carolina's standards are the standards of "the
State educational agency" referred to in 20 U.S.C.A.
§ 1401(a)(18)(B). See generally Gill v. Columbia 93 School Dist., 217
F.3d 1027, 1035 (8th Cir. 2000) ("If state legislation implementing
the IDEA creates a higher standard than the federal minimum, an
individual may bring an action under the federal statute seeking to
enforce the state standard."). FBDS argues that the North Carolina
standard does not apply to it, both because Congress did not clearly
express an intent to make federally run schools subject to state stan-
dards and because Congress elsewhere has provided by statute that
the Department of Defense is responsible for setting substantive edu-
cational standards for Department of Defense Elementary and Sec-
ondary Schools. We review the district court's conclusion that the
federal standard applies de novo.
For a federal installation to be subject to state laws, there must be
a "clear, unequivocal, federal statutory requirement" that the entity be
so subject. Hancock v. Train, 426 U.S. 167, 179 (1976) (stating also
that "an authorization of state regulation [of a federal entity] is found
only when and to the extent there is `a clear congressional mandate,'
`specific congressional action' that makes this authorization of state
regulation clear and unambiguous"); see also EPA v. State Water Res.
Control Bd., 426 U.S. 200, 211 (1976) ("Federal installations are sub-
ject to state regulation only when and to the extent that congressional
authorization is clear and unambiguous.").
As we have noted, the definition of a FAPE under the IDEA
requires that educational services "meet the standards of the State
educational agency." 20 U.S.C.A. § 1401(a)(18)(B). A school run by
____________________________________________________________
makers have built upon the federal floor created by the EHA [the IDEA's
predecessor, under which the federal standard was also a FAPE] and
have decided to provide the handicapped children, within the state, with
a level of educational services that surpasses the national minimum");
Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982-83 (4th Cir.
1990) (stating, in reference to section 115C-106(a), "North Carolina
apparently does require more than the EHA").
12

-- 17 of 28 --

a state or political subdivision of a state, then, must meet the stan-
dards established by the governing state educational agency, which in
turn must meet or exceed the IDEA's minimum requirement. The
statement that a FAPE consists of education and related services that
meet the state agency's standard, however, does not explicitly address
the situation here — a federal entity operating a school within the bor-
ders of a state. Under the IDEA, a state educational agency is the
agency "primarily responsible for State supervision of public elemen-
tary and secondary schools . . . ." 20 U.S.C.A. § 1401(a)(17). But in
the case of FBDS, there is no state agency responsible for "state
supervision" of the schools. Thus, G's central argument on this issue
fails.
Moreover, the federal statutes relating to rights of children in
Department of Defense schools, 10 U.S.C.A. § 2164(f)13 and 20
U.S.C.A. § 241(a) (West 1992) (repealed in 1994),14 provide no clear
____________________________________________________________
13 Section 2164(f) states as follows:
(1) The Secretary shall provide . . . :
(A) In the case of children with disabilities aged 3 to 5,
inclusive, all substantive rights, protections, and procedural safe-
guards (including due process procedures) available to children
with disabilities aged 3 to 5, inclusive under [the IDEA]
. . .
(C) In the case of all other children with disabilities, all sub-
stantive rights, protections, and procedural safeguards (including
due process procedures) available to children with disabilities
under [the IDEA].
(2) Paragraph (1) may not be construed as diminishing for chil-
dren with disabilities enrolled in day educational programs pro-
vided for under this section the extent of substantive rights,
protections, and procedural safeguards that were available under
section 6(a) of Public Law 81-874 (20 U.S.C.A. § 241(a)) to
children with disabilities as of October 7, 1991.
10 U.S.C.A. § 2164(f).
14 As of October 7, 1991, 20 U.S.C.A. § 241(a) stated that where the
Department of Defense operates a school, the Secretary of Defense or a
designee shall
13

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indication that Congress intended a federal institution such as FBDS
to be subject to FAPE standards established by state regulators, as
state standards are not specifically mentioned in either § 2164 or
§ 241. Further, the Department of Defense has promulgated regula-
tions that mirror the substantive standards expressed in the IDEA and
requires its schools to abide by those standards.15 See 32 C.F.R.
§ 80.4(a).
____________________________________________________________
[t]o the maximum extent practicable . . . take such action as may
be necessary to ensure that the education provided pursuant to
[the arrangement establishing the school] is comparable to free
public education provided for children in comparable communi-
ties in the State.
20 U.S.C.A. § 241(a) (West 1992) (repealed in 1994). Despite its repeal,
this section's exhortation to comparability continues to apply to schools
operated by the Department of Defense by virtue of the explicit reference
to it in § 2164(f). See note 15, infra.
15 Department of Defense regulation 32 C.F.R. § 80.3(p) defines a
FAPE as "special education and related services . . . [that] meet the
requirements of this part" without any reference to state standards. The
omission of any reference to state standards in this regulation is particu-
larly conspicuous because § 80.3(p) otherwise mirrors the FAPE defini-
tion found in the IDEA itself; but whereas the IDEA defines a FAPE as
special education and related services that meet "the standards of the
state educational agency," 20 U.S.C.A. § 1401(a)(18)(B), § 80.3(p)
defines a FAPE as special education and related services that "meet the
requirements of this part [32 C.F.R. Part 80]," 32 C.F.R. § 80.3(p)
(emphasis added).
While another Department of Defense regulation, 32 C.F.R. § 68.4(e),
states that certain standards for Department of Defense schools "must
conform to the comparable state's regulatory guidelines" for education of
students with disabilities, a regulation cannot itself satisfy a requirement
that Congress speak clearly to a given question. See, e.g., EPA v. Califor-
nia ex rel. State Water Resources Control Bd., 426 U.S. 200, 200 (1976)
("Federal installations are subject to state regulation only when and to the
extent that congressional authorization is clear and unambiguous")
(emphasis added); Hancock v. Train, 426 U.S. 167, 179 (1976) (same);
cf. also John v. United States, 247 F.3d 1032, 1046) (9th Cir. 2001) (en
banc) (Kozinski, J., dissenting) ("If we must rely on the agency to divine
the meaning of the statute, the meaning cannot be`plain to anyone read-
ing it.'"). Moreover, if read to require Department of Defense Schools to
comply with state FAPE standards, § 68.4(e) is difficult to reconcile with
§ 80.3(p).
14

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We find that § 241(a)'s requirement of "comparability" to the max-
imum extent practicable and its reference to the rights of children
with disabilities does not amount to the clear and unequivocal federal
statutory requirement necessary to incorporate the FAPE standard of
the state in which a Department of Defense school is located. Section
241(a) refers only to qualitative standards of schools in comparable
communities, such as the "compensation, tenure, leave, hours of
work, and other incidents of employment" of personnel hired to oper-
ate those schools, as areas in which Department of Defense schools
should be comparable. It is thus a reasonable conclusion that § 241(a)
was meant to compare schools operated by the Department of
Defense to schools in comparable communities only in more general
terms such as the conditions under which school personnel are
employed to provide education to all, rather than only disabled, stu-
dents. Section 2164(f)(2)'s reference to the rights of children with dis-
abilities under § 241(a) may reasonably be read as indicating that
§ 2164(f)(1), in requiring that the IDEA's protections be extended to
children with disabilities in schools operated by the Department of
Defense, does not relieve the Department of Defense of its burden,
applicable with respect to the education of all its students, to ensure
that the education those children receive remains generally compara-
ble to education provided in comparable communities, as measured
by indicators such as compensation, tenure, hours of work, and other
incidents of employment.16
In sum, G has not identified, nor have we found, any clear expres-
sion of congressional intent to subject federal entities to state FAPE
standards in providing education under the IDEA. Statutory refer-
ences to "substantive rights and procedural safeguards under the
____________________________________________________________
16 We note also that § 241(a) refers to schools "in comparable commu-
nities in the State," rather than simply "in the State." In the case of a
locally operated school, however, a FAPE is defined under the IDEA by
the standard of the state educational agency — the standard does not
vary by "community." 20 U.S.C.A. § 1401(a)(18) (defining a FAPE as,
inter alia, education and related services that "meet the standards of the
State educational agency"). Thus § 241(a)'s exhortation to comparability
would be an unusual method for Congress to have chosen if it meant to
impose on the Department of Defense the obligation of complying with
state FAPE standards.
15

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IDEA" do not unequivocally refer to FAPE standards enacted by the
states, because as the Supreme Court made clear in Rowley, the IDEA
itself contains a substantive FAPE standard. We conclude that the
federal standard embodied in the IDEA, then, rather than North Caro-
lina's "full potential" standard, governs G's IEPs.
2. Whether the April 1997 IEP Proposed a FAPE
Under the IDEA Standard
Having determined that the federal standard applies, we must next
address the question of whether G's April 1997 IEP was "reasonably
calculated" to provide G meaningful educational benefit. The parties
agree that "on paper" — that is, in the instructional methods and
activities proposed — the April 1997 IEP is reasonably calculated to
provide G educational benefit, but dispute whether FBDS is able to
implement the IEP.17 We conclude that the record before us is insuffi-
cient to permit a reasoned conclusion as to whether FBDS could
implement the April 1997 IEP as proposed in a way that would pro-
vide educational benefit to G.
As we have noted, G asserts that FBDS is unable, without the
involvement of a Lovaas-certified consultant, to implement the April
1997 IEP in a way that would provide him educational benefit. G con-
tends that the April 1997 IEP is deficient because it does not propose
that the necessary role of the Lovaas consultant will be filled by any-
one with comparable training or experience. In support of this argu-
ment, G relies primarily on the finding of the IHO that "[t]he Lovaas
Consultant is the heart of the Lovaas program." (Appellant's Br. at 29
(citing IHO decision, J.A. at 93).) In response, FBDS casts the sub-
stantive dispute with respect to the April 1997 IEP — whether or not
a Lovaas-certified consultant was necessary to provide G a FAPE —
as a dispute over the choice of educational methodology included in
the IEP, an area ill-suited to judicial second-guessing.
____________________________________________________________
17 While the parties agree that the 1997 IEP is appropriate "on paper,"
they disagree as to the necessity of a Lovaas-certified consultant's
involvement in implementing the IEP. We have described this dispute as
one over the "implementation" of the IEP, but it could also be described
as a dispute over the IEP's contents (i.e., the IEP's failure to call for a
Lovaas-certified consultant's involvement).
16

-- 21 of 28 --

After an extensive hearing, the IHO found that the April 1997 IEP
was insufficient because "[n]either G's current therapists nor his spe-
cial education teacher during 1995-96 are presently able to adequately
perform the function of . . . a Lovaas consultant based on their current
qualifications." (J.A. at 93.) The IHO explained that
the Lovaas consultant is the heart of the Lovaas program.
"Lovaas" is not simply a methodology that any educator
may employ with success, but rather, the experience,
insight, and adaptability that the consultant brings "to the
chair" are what is essential.
(J.A. at 93.)
The IHO's decision was reversed by the Appeal Board, which
found that the April 1997 IEP had proposed a FAPE. The Appeal
Board reasoned that the IHO had given insufficient deference to the
educational professionals who created the IEP, that the IHO "erred by
comparing the April 1997 IEP to the Lovaas program," and that the
April 1997 IEP "was not merely a repetition of the May 1996 IEP,"
which the IHO had already found inadequate. (J.A. at 126-27.) The
district court affirmed the Appeal Board's decision, finding that the
April 1997 IEP proposed a FAPE because it "reflected significant
modifications and changes made to express concerns expressed by
[G's] mother," including an increase in the number of Pre-Academic
Skills Goals listed. (J.A. at 182-83.) Neither the Appeal Board nor the
district court considered evidence apart from that assessed in the first
instance by the IHO.
While we ordinarily would owe deference to FBDS's simple asser-
tion that it is capable of implementing the April 1997 IEP, see MM
ex rel. DM v. School Dist. of Greenville County, 303 F.3d 523 (4th
Cir. 2002), in this case the IHO, after considering extensive evidence,
concluded that FBDS personnel who were not Lovaas-certified and
did not have comparable training or experience could not adequately
implement the teaching methods called for in the April 1997 IEP. The
IHO's determination, however, does not appear to have been based on
an evaluation of the evidence under the proper standard. Rather than
assessing FBDS's ability to provide G educational benefit under the
April 1997 IEP, the IHO assessed FBDS's ability to replicate the
17

-- 22 of 28 --

complete Lovaas therapy. That is, the IHO's conclusion was premised
not on an analysis of whether the April 1997 IEP was "reasonably cal-
culated to provide educational benefit" to G, but instead on examina-
tion of whether that IEP would replicate the benefit to G of the
complete Lovaas therapy, which had been successful for him. (J.A. at
93 ("The April 1997 IEP does not propose to continue the complete
behavioral therapy program for G although it has been proven empiri-
cally to work with G as well as some other autistic preschool-age chil-
dren . . . . As has sometimes been observed, if it isn't broken, don't
`fix' it.")); id. (noting that without the consultant, there would be "no
assurance that the Lovaas curriculum, including daily documentation,
would be consistently followed").
Neither the Appeal Board nor the district court addressed FBDS's
ability to implement the April 1997 IEP as proposed (that is, absent
a Lovaas-certified consultant's involvement) or provided an indepen-
dent assessment of the educational benefit G would receive from that
IEP. This is thus an unusual case in that, even after the conclusion of
the administrative process and a trial of the issues in the district court,
none of the decisions below reflect a thorough assessment of the evi-
dence under the proper standard — that is, whether the April 1997
IEP, as proposed, was "reasonably calculated to provide educational
benefit" to G. Having examined the record and the parties' arguments
thoroughly, we conclude that they are not sufficient to support a rea-
soned analysis and conclusion in this court on the issue of FBDS's
ability to implement the April 1997 IEP as proposed. Accordingly, we
reverse the district court's judgment on this issue and remand for such
further proceedings as are required to resolve the parties' conflict
under the proper standard.
B. G's Request for an Award of Compensatory Education
G next asserts that the district court erred in denying his request for
an award of compensatory education based on FBDS's failure to pro-
vide him a FAPE during the 1994-1996 school years. We conclude
that the district court erred in rejecting G's claim on the ground that
his parents failed to object to his IEPs during 1994-1996, and accord-
ingly reverse its judgment and remand for reconsideration of this
issue.
18

-- 23 of 28 --

In a section of its opinion entitled "Was a FAPE provided for
school years 1994-1996?," the district court addressed and rejected
G's claim that he was entitled to compensatory education relating to
those school years.18 (J.A. at 174-80.) The district court noted that G's
parents had not asserted their claim regarding FBDS's failure to pro-
vide a FAPE during the 1994-1996 school years until November
1996, "when G's mother requested that [FBDS] pay for G's
homeschooling and Lovaas instruction," and thus FBDS was not
aware that G's parents objected to the educational services he
received during those school years until well after they had con-
cluded. (J.A. at 179.) The district court reasoned that "[i]f the parents
believed that [FBDS was] denying their child a FAPE, it was incum-
bent on them to bring that to the school's attention via the available
statutory mechanisms," and on that basis denied relief. (J.A. at 179.)
In this connection, the district court noted that"[s]chool boards must
be given adequate notice of problems if they are to remedy them, and
must be given sufficient time to respond to those problems before
they can be held liable for failure to act." (J.A. at 179-80 (citing
Combs, 15 F.3d at 363-64).)
Several of our sister circuits have concluded that an award of
"compensatory education" — educational services ordered by the
court to be provided prospectively to compensate for a past deficient
program — may be "appropriate relief" under the IDEA. See, e.g.,
Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 249 (3d Cir. 1999)
(recognizing appropriateness, in some circumstances, of award of
compensatory education beyond age 21 and remanding for determina-
tion of whether it should be awarded); Board of Ed. of Oak Park &
River Forest High School Dist. 200 v. Illinois State Bd. of Ed., 79
F.3d 654, 656 (7th Cir. 1996) (stating that the IDEA's authorization
____________________________________________________________
18 As we have noted, the Appeal Board did not specifically address G's
arguments related to the 1994-1996 school years. See note 9, supra. The
Appeal Board did, however, address the prospective relief ordered by the
IHO, finding it insupportable. Specifically, the Appeal Board stated that
that the prospective relief ordered by the IHO "usurp[ed] the authority
and responsibility of [the IEP team] to periodically develop and review
the Child's IEP" and "constituted an impermissible micro management
of [FBDS]." (J.A. at 136.) Accordingly, the Board concluded that the
IHO had abused his discretion and reversed his order of prospective
relief.
19

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to courts to grant "appropriate" relief "encompasses the full range of
equitable remedies and therefore empowers a court to order adult
compensatory education if necessary to cure a violation"); Parents of
Student W. v. Puyallup School District, 31 F.3d 1489, 1496 (9th Cir.
1994) (same); Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184, 188
(1st Cir. 1993) (same); Hall v. Knott County Bd. of Ed., 941 F.2d 402,
407 (6th Cir. 1991) (same); Jefferson County Bd. of Educ. v. Breen,
853 F.2d 853, 857-58 (11th Cir. 1988) (same); Miener v. Missouri,
800 F.2d 749, 753 (8th Cir. 1986) (recognizing appropriateness of
compensatory education award and holding that plaintiff was entitled
to recover compensatory education if she prevailed in her claim that
she was denied a FAPE for several years). Compensatory education
involves discretionary, prospective, injunctive relief crafted by a court
to remedy what might be termed an educational deficit created by an
educational agency's failure over a given period of time to provide a
FAPE to a student. We agree with every circuit to have addressed the
question that the IDEA permits an award of such relief in some cir-
cumstances. As we explain below, because the district court's basis
for rejection of G's compensatory education claim involved an erro-
neous legal conclusion, we reverse its rejection of that claim and
remand for reconsideration.
The district court concluded that an award of compensatory educa-
tion was inappropriate in this case because G's parents failed to object
during the 1994-1996 school years to the IEPs under which G was
receiving educational services. As we have noted, the district court
cited Combs as authority for this proposition, stating that "the IDEA
should cannot be used as a sword to punish school districts unaware
of parents' concerns." (J.A. at 179 (citing Combs, 15 F.3d at 363-64).)
We addressed in Combs whether a party "may recover attorneys'
fees as the prevailing party in an action brought under the attorneys'
fees provision of the [IDEA] against the School Board" where "the
School Board's actions were deemed to be in accordance with the
[IDEA], but the School Board later made some changes that com-
ported with [the plaintiff's] demands." Id. at 357-58. Thus, our state-
ment in Combs referred only to liability of the school district where
its actions were in compliance with the IDEA, and is inapplicable
here. Moreover, other courts have concluded that "failure to object to
[a child's] placement does not deprive him of the right to an appropri-
ate education." Ridgewood, 172 F.3d at 250 (rejecting the contention
20

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that failure to object to an IEP while in force categorically bars relief
related to that IEP). Accordingly, the district court's rejection of the
compensatory education claim was based on an erroneous legal con-
clusion, and we therefore reverse the court's judgment as to this issue.19
We think it worthwhile, however, to note that our reversal is predi-
cated only on the district court's erroneous legal conclusion, and not
on an assessment of the merits of an award of compensatory educa-
tion in this case. We leave that issue to be decided on remand.
C.
G next asserts that the district court erred in determining that he
was not a "prevailing party" and thus not entitled to an award of attor-
neys' fees under the IDEA's attorneys' fees provision, 20 U.S.C.A.
§ 1415(e)(4)(B). The district court found that because the goal of G's
IDEA action had been to have the complete Lovaas therapy adopted
by the school and the court had declined to compel the school to
adopt the complete Lovaas therapy, G had not "prevailed" in the suit.
The district court stated that there had been no "material alteration of
the legal relationship of the parties," without addressing the award of
over $11,000 in reimbursement expenses to the plaintiffs. (J.A. at
186.) It further suggested that without prospective relief, a party can-
not be the prevailing party on a claim under the IDEA. (J.A. at 187.)
The designation of a party as a prevailing (or non-prevailing) party is
a legal determination that we review de novo. Smyth v. Rivero, 282
F.3d 268, 274 (4th Cir. 2002).
The IDEA states in relevant part that
In any action or proceeding brought under this subsection,
the court, in its discretion, may award reasonable attorneys'
fees as part of the costs to the parents of a child with a dis-
ability who is the prevailing party.
§ 1415(e)(4))(B). The Supreme Court has noted that even an award
of nominal damages makes a party the prevailing party. Buckhannon
Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human
____________________________________________________________
19 Neither the district court's conclusion nor FBDS's "waiver" argu-
ment on appeal is predicated on a statute of limitations theory, and
accordingly we have no occasion to address whether any such limitations
period might apply.
21

-- 26 of 28 --

Resources, 532 U.S. 598, 604 (noting that "even an award of nominal
damages suffices" to make a party a prevailing party) (citing Farrar
v. Hobby, 506 U.S. 103, 112 (1992)). An award of attorneys' fees
conditioned on a party's having prevailed does not require the party
to have prevailed on every claim; the party's obtaining judicially
sanctioned and enforceable final relief on some claims is sufficient.20
See, e.g., Rum Creek Coal Sales, Inc v. Caperton, 31 F.3d 169, 174
(4th Cir. 1994) (noting that a party may receive attorneys' fees as a
prevailing party "[w]hen [it] prevails on only some of the claims
made"); see also Richardson v. Miller, 279 F.3d 1, 3 (1st Cir. 2002)
("a plaintiff need not prevail on every claim and obtain all relief
sought to qualify as a prevailing party"). Accordingly, the district
court's award of reimbursement of over $11,000 in expenses to G was
an enforceable legal judgment which plainly rendered G a prevailing
party for purposes of the IDEA, and we reverse its holding that G was
not a prevailing party.
D.
Finally, G argues that the district court erred in re-
fusing to grant him prejudgment interest on the reimbursement
award. The district court determined, in ruling on a motion to
reconsider its earlier judgment, that prejudgment interest should
not be awarded because the plaintiffs were not the prevailing party,
and that because the reimbursement award "did not make the
plaintiffs whole under their theory of the case," an award of pre-
judgment interest would not serve to complete an award that made
____________________________________________________________
20 A district court exercising its discretion in awarding attorneys' fees
must of course consider the award requested in light of the claims on
which the party prevailed and the overall work performed by the attor-
ney. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) ("There is no pre-
cise rule or formula for making [attorneys' fees] determinations [where
the party has prevailed on only some claims]. The district court may
attempt to identify specific hours that should be eliminated, or it may
simply reduce the award to account for the limited success."). Thus, the
district court should consider on remand whether G has prevailed on
other issues in addition to receiving the reimbursement award.
22

-- 27 of 28 --

G "almost whole." (J.A. at 210.) A district court's denial of an
award of prejudgment interest is reviewed for abuse of discretion.
Mary Helen Coal Corp. v. Hudson, 235 F.3d 207, 210 (4th Cir.
2001) (noting that "the award of prejudgment interest is within the
discretion of the district court"); Quesinberry v. Life Ins. Co. of
North America, 987 F.2d 1017, 1030 (4th Cir.1993) (en banc)
("ERISA does not specifically provide for pre-judgment interest,
and absent a statutory mandate the award of pre-judgment interest
is discretionary with the trial court"). G asserts that failure to
award prejudgment interest rendered the reimbursement award
inadequate to make G's education "free" within the meaning of
the term "free appropriate public education" in the IDEA and that
"[i]t is unjust to allow [FBDS] an involuntary interest-free loan
from [G's parents]." (Br. of Appellant at 14.) FBDS asserts that
the district court did not abuse its discretion in determining that
no award of prejudgment interest was warranted.
Although not raised by FBDS until its petition for rehearing,
we now address the question of sovereign immunity. See Medina
v. United States, 259 F.3d 220, 223-24 (4th Cir. 2001) (noting that
sovereign immunity is jurisdictional in nature, and failure to raise
the issue does not prevent the court from considering it). A
waiver of sovereign immunity does not permit an award of interest
against the government unless that waiver expressly extends to
interest. See Library of Congress v. Shaw, 478 U.S. 310, 314
(1986) (“In the absence of express congressional consent to the
award of interest separate from a general waiver of immunity to
suit, the United States is immune from an interest award.”); see
also Gatlin Oil Co., Inc. v. United States, 169 F.3d 207, 213
(4th Cir. 1999). Congress has not waived the sovereign immu-
nity of the United States with respect to awards of prejudgment
interest in actions under the IDEA. No provision in § 2164,
nor in any part of the IDEA, contains such an express waiver.
Accordingly, sovereign immunity bars an award of prejudg-
ment interest against the United States. The district court’s
rejection of prejudgment interest is therefore affirmed.
III.
For the foregoing reasons, the judgment of the district court is
affirmed in part and reversed and remanded in part for further
proceedings consistent with this opinion.
AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART
21 FBDS concedes, and we agree, that 10 U.S.C.A. § 2164,
discussed above, provides a general waiver of sovereign
immunity in IDEA actions. See 10 U.S.C.A. § 2164(f)(1)(C).
23

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