UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) DISTRICT OF COLUMBIA, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-2075 (RWR) ) JOHN A. STRAUS, et al., ) ) Defendants. ) ______________________________)
MEMORANDUM OPINION
The District of Columbia (“DC”) unsuccessfully sued attorney
John Straus and his law firm, James E. Brown & Associates,
seeking attorneys’ fees under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1415, claiming that the
District of Columbia Public Schools (“DCPS”) was the prevailing
party in an administrative proceeding that Straus had needlessly
brought and continued. The defendants now seek attorneys’ fees
under Federal Rule of Civil Procedure 54(d), arguing that DC
acted in bad faith throughout the course of the litigation.
Because the defendants have not established that DC’s efforts
were undertaken in bad faith, their petition for fees will be
denied.
BACKGROUND
In the underlying action, Straus represented a child with
special educational needs who was enrolled in a DC public high -2-
school. A DCPS multidisciplinary team referred the child to DCPS
for a psychiatric evaluation. Because DCPS failed to conduct the
evaluation, Straus filed an administrative due process complaint
on behalf of the child and his legal guardian. The complaint
sought to have DCPS fund an independent evaluation. Three
business days after Straus filed the complaint, DCPS authorized
Straus to obtain an independent evaluation at DCPS’ expense.
Thereafter, a hearing officer dismissed the complaint with
prejudice on the ground that DCPS’ authorization mooted the
issue. The hearing officer added his conclusions that Straus had
filed the complaint without foundation and had groundlessly
maintained the litigation after it became moot. DC then brought
this action and moved for summary judgment, claiming that DCPS
was the prevailing party in the administrative proceeding and it
therefore was entitled to attorneys’ fees. However, judgment as
a matter of law was entered in the defendants’ favor because DCPS
was not a prevailing party. DC appealed the decision, the D.C.
Circuit affirmed, and the defendants now move under Rule 54(d)
for attorneys’ fees, arguing that DC brought and pursued this
action in bad faith and therefore they are entitled to a fee
award. DC opposes the motion, disputing that defendants have
demonstrated any bad faith. -3-
DISCUSSION
“In the United States, parties are ordinarily required to
bear their own attorney’s fees -- the prevailing party is not
entitled to collect from the loser.” Buckhannon Bd. and Care
Home, Inc. v. W. Va. Dep’t of Health and Human Servs.
(“Buckhannon”), 532 U.S. 598, 602 (2001); see also Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).
“Under this ‘American Rule,’ we follow ‘a general practice of not
awarding fees to a prevailing party absent explicit statutory
authority.’” Buckhannon, 532 U.S. at 602 (quoting Key Tronic
Corp. v. United States, 511 U.S. 809, 819 (1994)). Numerous
statutes, including the IDEA, provide for an award of attorneys’
fees for the prevailing party. That party may move under Rule
54(d) for a fees award by specifying “the statute, rule, or other
grounds entitling the movant to the award.” Fed. R. Civ. P.
54(d)(2)(A), (B)(ii).
When there is no statutory authorization for such an award,
a court may “consider whether the requested fee award [falls]
within any of the exceptions to the general ‘American Rule[.]’”
Alyeska Pipeline Serv. Co., 421 U.S. at 245. In Alyeska, the
Supreme Court set forth these common law exceptions, which
include circumstances “where a party has brought an action as a
trustee of a fund or property or to preserve or recover a fund
for the benefit of others in addition to himself” or where the -4-
non-movant has acted in “bad faith.” In re Antioch Univ., 482
A.2d 133, 136 (D.C. 1984) (internal quotation marks omitted).
“Legal fees may . . . be levied against a party who has willfully
disobeyed a court order or when the losing party has acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.” Id.
(internal quotation marks omitted); see also Hall v. Cole, 412
U.S. 1, 5 (1973); Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 219
(D.C. Cir. 1991); Ellipso, Inc. v. Mann, 594 F. Supp. 2d 40, 43
(D.D.C. 2009). Notwithstanding these exceptions, “courts do not
have ‘roving authority’ to allow counsel fees whenever deemed
warranted.” In re Antioch Univ., 482 A.2d at 136 (quoting
Alyeska Pipeline Serv. Co., 421 U.S. at 260).
“Bad faith can support an award of attorneys’ fees in
circumstances where the bad faith (1) occurred in connection with
the litigation, or (2) was an aspect of the conduct giving rise
to the lawsuit.” Am. Hosp. Ass’n, 938 F.2d at 219. Bad faith
occurring in connection with the litigation can include “the
filing of a frivolous complaint or meritless motion, . . . or
discovery-related misconduct.” Id. at 219-20 (internal citations
omitted). “Bad faith in conduct giving rise to the lawsuit may
be found where ‘a party, confronted with a clear statutory or
judicially-imposed duty towards another, is so recalcitrant in
performing that duty that the injured party is forced to
undertake otherwise unnecessary litigation to vindicate plain -5-
legal rights.’” Id. at 220 (quoting Fitzgerald v. Hampton, 545
F. Supp. 53, 57 (D.D.C. 1982)). Further, “the substantive
standard for a finding of bad faith is ‘stringent’ and
‘attorneys’ fees will be awarded only when extraordinary
circumstances or dominating reasons of fairness so demand.’”
Ass’n of Am. Physicians and Surgeons, Inc. v. Clinton, 187 F.3d
655, 660 (D.C. Cir. 1999) (quoting Nepera Chem., Inc. v. Sea-Land
Serv., Inc., 794 F.2d 688, 702 (D.C. Cir. 1986)). “[T]he finding
of bad faith must be supported by ‘clear and convincing
evidence[.]’” Id. (quoting Shepherd v. Am. Broad. Cos., Inc., 62
F.3d 1469, 1476-78 (D.C. Cir. 1995)). This “‘generally requires
the trier of fact, in viewing each party’s pile of evidence, to
reach a firm conviction of the truth on the evidence about which
he or she is certain.’” Id. (quoting United States v. Montague,
40 F.3d 1251, 1255 (D.C. Cir. 1994)).
The defendants advance three main arguments to establish bad
faith.1 The defendants complain that DC’s Attorney General
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) DISTRICT OF COLUMBIA, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-2075 (RWR) ) JOHN A. STRAUS, et al., ) ) Defendants. ) ______________________________)
MEMORANDUM OPINION
The District of Columbia (“DC”) unsuccessfully sued attorney
John Straus and his law firm, James E. Brown & Associates,
seeking attorneys’ fees under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1415, claiming that the
District of Columbia Public Schools (“DCPS”) was the prevailing
party in an administrative proceeding that Straus had needlessly
brought and continued. The defendants now seek attorneys’ fees
under Federal Rule of Civil Procedure 54(d), arguing that DC
acted in bad faith throughout the course of the litigation.
Because the defendants have not established that DC’s efforts
were undertaken in bad faith, their petition for fees will be
denied.
BACKGROUND
In the underlying action, Straus represented a child with
special educational needs who was enrolled in a DC public high -2-
school. A DCPS multidisciplinary team referred the child to DCPS
for a psychiatric evaluation. Because DCPS failed to conduct the
evaluation, Straus filed an administrative due process complaint
on behalf of the child and his legal guardian. The complaint
sought to have DCPS fund an independent evaluation. Three
business days after Straus filed the complaint, DCPS authorized
Straus to obtain an independent evaluation at DCPS’ expense.
Thereafter, a hearing officer dismissed the complaint with
prejudice on the ground that DCPS’ authorization mooted the
issue. The hearing officer added his conclusions that Straus had
filed the complaint without foundation and had groundlessly
maintained the litigation after it became moot. DC then brought
this action and moved for summary judgment, claiming that DCPS
was the prevailing party in the administrative proceeding and it
therefore was entitled to attorneys’ fees. However, judgment as
a matter of law was entered in the defendants’ favor because DCPS
was not a prevailing party. DC appealed the decision, the D.C.
Circuit affirmed, and the defendants now move under Rule 54(d)
for attorneys’ fees, arguing that DC brought and pursued this
action in bad faith and therefore they are entitled to a fee
award. DC opposes the motion, disputing that defendants have
demonstrated any bad faith. -3-
DISCUSSION
“In the United States, parties are ordinarily required to
bear their own attorney’s fees -- the prevailing party is not
entitled to collect from the loser.” Buckhannon Bd. and Care
Home, Inc. v. W. Va. Dep’t of Health and Human Servs.
(“Buckhannon”), 532 U.S. 598, 602 (2001); see also Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).
“Under this ‘American Rule,’ we follow ‘a general practice of not
awarding fees to a prevailing party absent explicit statutory
authority.’” Buckhannon, 532 U.S. at 602 (quoting Key Tronic
Corp. v. United States, 511 U.S. 809, 819 (1994)). Numerous
statutes, including the IDEA, provide for an award of attorneys’
fees for the prevailing party. That party may move under Rule
54(d) for a fees award by specifying “the statute, rule, or other
grounds entitling the movant to the award.” Fed. R. Civ. P.
54(d)(2)(A), (B)(ii).
When there is no statutory authorization for such an award,
a court may “consider whether the requested fee award [falls]
within any of the exceptions to the general ‘American Rule[.]’”
Alyeska Pipeline Serv. Co., 421 U.S. at 245. In Alyeska, the
Supreme Court set forth these common law exceptions, which
include circumstances “where a party has brought an action as a
trustee of a fund or property or to preserve or recover a fund
for the benefit of others in addition to himself” or where the -4-
non-movant has acted in “bad faith.” In re Antioch Univ., 482
A.2d 133, 136 (D.C. 1984) (internal quotation marks omitted).
“Legal fees may . . . be levied against a party who has willfully
disobeyed a court order or when the losing party has acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.” Id.
(internal quotation marks omitted); see also Hall v. Cole, 412
U.S. 1, 5 (1973); Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 219
(D.C. Cir. 1991); Ellipso, Inc. v. Mann, 594 F. Supp. 2d 40, 43
(D.D.C. 2009). Notwithstanding these exceptions, “courts do not
have ‘roving authority’ to allow counsel fees whenever deemed
warranted.” In re Antioch Univ., 482 A.2d at 136 (quoting
Alyeska Pipeline Serv. Co., 421 U.S. at 260).
“Bad faith can support an award of attorneys’ fees in
circumstances where the bad faith (1) occurred in connection with
the litigation, or (2) was an aspect of the conduct giving rise
to the lawsuit.” Am. Hosp. Ass’n, 938 F.2d at 219. Bad faith
occurring in connection with the litigation can include “the
filing of a frivolous complaint or meritless motion, . . . or
discovery-related misconduct.” Id. at 219-20 (internal citations
omitted). “Bad faith in conduct giving rise to the lawsuit may
be found where ‘a party, confronted with a clear statutory or
judicially-imposed duty towards another, is so recalcitrant in
performing that duty that the injured party is forced to
undertake otherwise unnecessary litigation to vindicate plain -5-
legal rights.’” Id. at 220 (quoting Fitzgerald v. Hampton, 545
F. Supp. 53, 57 (D.D.C. 1982)). Further, “the substantive
standard for a finding of bad faith is ‘stringent’ and
‘attorneys’ fees will be awarded only when extraordinary
circumstances or dominating reasons of fairness so demand.’”
Ass’n of Am. Physicians and Surgeons, Inc. v. Clinton, 187 F.3d
655, 660 (D.C. Cir. 1999) (quoting Nepera Chem., Inc. v. Sea-Land
Serv., Inc., 794 F.2d 688, 702 (D.C. Cir. 1986)). “[T]he finding
of bad faith must be supported by ‘clear and convincing
evidence[.]’” Id. (quoting Shepherd v. Am. Broad. Cos., Inc., 62
F.3d 1469, 1476-78 (D.C. Cir. 1995)). This “‘generally requires
the trier of fact, in viewing each party’s pile of evidence, to
reach a firm conviction of the truth on the evidence about which
he or she is certain.’” Id. (quoting United States v. Montague,
40 F.3d 1251, 1255 (D.C. Cir. 1994)).
The defendants advance three main arguments to establish bad
faith.1 The defendants complain that DC’s Attorney General
contacted the press and “provide[d] interviews to the Washington
Post and the City Paper” about filing this case, thereby
“cho[osing] to make this matter a media event[.]” (Defs.’ Reply
at 3.) It is hardly a novel concept, much less evidence of bad
1 The defendants offer no support for their conclusory allegation that DC brought this litigation based on a baseless claim (Defs.’ Reply at 4), nor have defendants argued that DC filed any meritless motions during the course of litigation, or that DC committed any discovery-related misconduct. -6-
faith, that a jurisdiction’s chief law enforcement officer would
choose to make public his initiatives. The defendants also argue
that DC had no “interest [in] resolving this matter amicably,
adumbrating that it wanted a decision and thereafter . . .
refus[ing] seriously [to] engage in settlement discussions.”
(Id.) That a party in litigation chooses to seek a decision on
the merits as opposed to settle the case does not alone establish
bad faith or necessarily reflect an illegitimate litigation
strategy. Defendants’ final argument –- that DC’s decision to
appeal the judgment against it shows bad faith (id.) –- wholly
lacks merit and warrants no discussion. DC’s efforts here
reflected zealous, if misguided, advocacy, but the defendants
have made no showing meeting the stringent standards required to
establish bad faith. Thus, defendants are not entitled to
attorneys’ fees, and their petition for fees therefore will be
CONCLUSION
Because the defendants fail to make a factual showing of bad
faith by DC, their petition for attorneys’ fees will be denied.
A final, appealable Order accompanies this Memorandum Opinion.
SIGNED this 12th day of April, 2010.
/s/ RICHARD W. ROBERTS United States District Judge