Big Day in the DC District Court V

Whatley v. District of Columbia involves attorneys' fees. (This is getting monotonous.) The plaintiff prevailed in two due process hearings. The school district paid attorneys' fees up to the statutory cap then in place in the District of Columbia. The plaintiff moved for the fees incurred during the administrative process, but were not paid because of the fee cap. As mentioned in an earlier post, Congress had dropped the fee cap in 2002, but had placed a provision in the 2002 appropriation bill that would prevent a plaintiff from seeking payment of fees incurred during the period that the fee cap was in effect. The plaintiffs argued that since such a provision was not in subsequent appropriation bills, they could seek retroactive payment of fees. The Court rejected this argument, holding that the 2002 appropriation bill clearly prevented plaintiffs from seeking fees for the period when the fee caps were in place.

The plaintiffs then argued that the section of the 2002 appropriation bill (section 140) was unconstitutional on the ground that it violates the separation of powers doctrine. The argument was that the permanent cap unlawfully usurps the Court's authority by effectively removing from the courts all discretion to award fees under a statute that affirmatively gives them such power. The Court rejected this argument as well, noting that the D.C.Circuit in Calloway v. District of Columbia, had held that the fee cap did not impinge on the Court's power to award fees; it only prevented the school district from paying the fees. [This does not seem to me to be a satisfactory answer. If the Court orders fees to be paid, but the school district is not allowed to pay, how can the Court enforce its order? It really does impinge on the Court's power.]

The plaintiffs asserted that section 140 also violates the separation of powers doctrine by improperly nullifying Calloway. They claim that Calloway held that if the fee cap were ever lifted, the plaintiffs would be entitled to the remainder of any previous fee petitions that were limited by the cap. By enacting section 140, Congress impermissibly sought to change the dispostion of Calloway. Judge Friedman, however, disagreed. He stated: "Whiel the decision in Calloway does not prohibit parties from seeking future payments of past fees, it by no means requires payment if the cap is lifted. The issue of whether plaintiffs have a right to obtain past fee amounts from subsequent years' appropriations simply was expressly left open in Calloway, and Section 140 (2002) therefore cannot deprive the judgment in Calloway of its 'conclusive effect.'"

Finally, the plaintiffs claimed that section 140 effected a taking in violation of the Fifth Amendment. The claim was that counsel had agreed to represent the plaintiffs on a contingency basis and continued to represent them because she had an interest in and a reasonable expectation that she could some day collect the remainder of her fees when the cap expired. The Court rejected this claim, asserting that the Calloway decision, even coupled with the temporary nature of the fee caps, was not sufficient to create a property interest in the excess fees. Hence, there was no takiing.

Bad news for the attorneys. But some very original arguments.