UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CALLOWAY, BRANDON

v.

DC


99-5215a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: A rider to the District of Columbia 
Appropriations Act imposes limits on fees the District may  pay under
the Individuals with Disabilities Education Act,  known as IDEA, to
attorneys who represent prevailing par- ties in actions against the
D.C. Public Schools. In this suit by  disabled students and their
parents, the district court reject- ed challenges to the fee cap,
finding it neither preempted by  IDEA nor contrary to the Due Process
Clause of the Fifth  Amendment. The district court also held that the
rider  restricts only the District's authority to pay attorneys' fees,
 not court authority to award fees pursuant to IDEA. Find- ing no
error, we affirm in all respects.


I


The Individuals with Disabilities Education Act seeks to  "ensure that
all children with disabilities have available to  them a free
appropriate public education that emphasizes  special education and
related services designed to meet their  unique needs and prepare them
for employment and indepen-


dent living." 20 U.S.C. s 1400(d)(1)(A). As a condition of  receiving
funds under the Act, IDEA requires school districts  to adopt
procedures to ensure appropriate educational place- ment of disabled
students. See 20 U.S.C. s 1413. In addi- tion, school districts must
develop comprehensive plans for  meeting the special educational needs
of disabled students.  See 20 U.S.C. s 1414(d)(2)(A). Known as
"individualized  education programs," or IEPs, these plans must
include "a  statement of the child's present levels of educational
perfor- mance, ... a statement of measurable annual goals, [and] a 
statement of the special education and related services ... to  be
provided to the child...." 20 U.S.C. s 1414(d)(1)(A).


IDEA guarantees parents of disabled children an opportu- nity to
participate in the identification, evaluation, and place- ment
process. See 20 U.S.C. ss 1414(f), 1415(b)(1). Parents  who object to
their child's "identification, evaluation, or edu- cational placement"
are entitled to an "impartial due process  hearing," 20 U.S.C. ss
1415(b)(6), (f)(1), at which they have a  "right to be accompanied and
advised by counsel." 20 U.S.C.  s 1415(h)(1). Parents "aggrieved by" a
hearing officer's find- ings and decision may bring a civil action in
either state or  federal court without regard to the amount in
controversy.  20 U.S.C. s 1415(i)(2).


Section 1415(i)(3)(B) of IDEA gives courts authority to  "award
reasonable attorneys' fees as part of the costs to the  parents of a
child with a disability who is the prevailing  party." Prevailing
parents may also recover fees incurred  during administrative
proceedings. See Moore v. District of  Columbia, 907 F.2d 165 (D.C.
Cir. 1990) (en banc). The  amount of fees awarded "shall be based on
rates prevailing in  the community in which the action or proceeding
arose for  the kind and quality of services furnished." 20 U.S.C.  s


The District of Columbia Public Schools (DCPS) has failed  to meet its
obligations under IDEA, a fact no one disputes.  In its brief, the
United States describes DCPS's situation this  way:


By 1998, the District of Columbia School System's ...  failure to
fulfill its obligations under IDEA reached crisis  proportions. The
District had virtually ceased to con- duct timely hearings requested
by parents under IDEA  and to issue final decisions within the
required timelines.  Other of its obligations under IDEA were also not
being  met to a significant extent.


See also Blackman v. District of Columbia, 185 F.R.D. 4, 5  (D.D.C.
1999) (finding that DCPS's noncompliance with  IDEA has resulted in
"significant delays both in the place- ment of children in appropriate
educational settings and in  the provision of crucial medical
services, delays that have the  potential to permanently harm the
physical and emotional  health of many young children."). At a June
1997 public  hearing, DCPS identified several factors responsible for
its  noncompliance, including "inadequate management[,]....  poor
information management systems, lack of staff training,  inappropriate
staff allocation and lack of appropriate pro- grams." Notice of
Written Findings and Decision and Com- pliance Agreement, 63 Fed. Reg.
41370, 41373. A year later,  the Secretary of Education stated that,
after "working with  DCPS over a number of years to address its
serious and on- going failure to comply with the requirements of
[IDEA]," he  determined that immediate compliance was "not feasible." 
Id. at 41371. The Secretary and DCPS entered into a  Compliance
Agreement mandating that DCPS "be in full  compliance with the
requirements of [IDEA in] no later than  three years." Id. at 41374.


DCPS's failure to meet the special education needs of its  disabled
students has resulted in an exceedingly large num- ber of parental
complaints. The record shows that in 1995,  although DCPS served less
than two-thousandths of one  percent of the nation's disabled
students, over forty-five  percent of requests for due process
hearings nationwide were  made in D.C.


Because IDEA authorizes the award of attorneys' fees,  parental
complaints have been costly for DCPS. In fiscal  year 1998, for
example, the school district paid over $10 


million to attorneys. That same year, the Washington Post  reported
that legal representation of special education stu- dents, once "an
obscure niche," had developed into a "boom- ing, lucrative industry."
Doug Struck and Valerie Strauss,  Special Ed Law Is Big Business;
Students' Attorneys Collec- tively Receiving Millions in Fees, The
Wash. Post, July 20,  1998, at B7. Describing special education cases
as "easy [to]  win," the Post stated that "when the city's school
system is  crying for money to try to build an adequate special
education  system--and thereby begin to lessen the flood of legal
chal- lenges--these attorney fees rankle school officials who say  the
money should be spent on children." Id.


Responding to the concerns expressed in the Post article,  the House
Committee on Appropriations, while considering  the District's fiscal
year 1999 appropriations request, acted to  stem "the growth in legal
expenses ... and the usurping of  resources from education to pay
attorney fees." H.R. Rep.  105-670, at 50 (1998). The Committee
adopted an appropria- tions rider that, in order to allow DCPS to
"focus more  clearly on teaching and learning rather than on
litigation and  expensive legal fees," limited the District's fee
payments  under IDEA. Id. Eventually becoming section 130 of the  1999
D.C. Appropriations Act, the rider imposed caps on both  the hourly
rate and total amount of compensation the District  could pay lawyers
of parents who prevail in IDEA actions and  proceedings. See Section
130 of the Omnibus Consolidated  and Emergency Supplemental
Appropriations Act of 1999,  Pub. L. 105-277, 112 Stat. 2681 (October
21, 1998) (hereinaf- ter, section 130). Specifically, section 130
provided that 1999  funds could not be used to pay attorneys' fees in
excess of the  amount at which the D.C. Code fixes compensation of
attor- neys who represent indigent defendants charged with misde-
meanors: $50 per hour and $1,300 overall. See section 130;  D.C. Code
Ann. s 11-2604(a); D.C. Code s 11-2604(b)(1).  Section 130 allowed the
maximum total payment, but not the  maximum hourly rate, to be waived
for "extended or complex  representation." See section 130; D.C. Code
Ann.  s 11-2604(c). In its entirety, section 130 reads as follows:


None of the funds contained in this Act may be made  available to pay
the fees of an attorney who represents a  party who prevails in an
action, including an administra- tive proceeding, brought against the
District of Columbia  Public Schools under the Individuals with
Disabilities  Education Act (20 U.S.C. s 1400 et seq.) if--


(1) the hourly rate of compensation of the attorney  exceeds [$50];


(2) The maximum amount of compensation of the at- torney exceeds
[$1,300], except that compensation and  reimbursement in excess of
such maximum may be  approved for extended or complex representation
in  accordance with section 11-2604(c), District of Colum- bia Code.


Congress included a similar rider in the District's fiscal  year 2000
appropriations bill. Fearful of the rider's impact  on disabled
children, President Clinton vetoed the bill. "In  the long run," the
President's veto message explained, "this  provision would likely
limit the access of the District's poor  families to quality legal
representation, thus impairing their  due process protections provided
by ... IDEA." See District  of Columbia Appropriations Act, 2000--Veto
Message from  The President of The United States (H. Doc. No.
106-135),  145 Cong. Rec. H8941, H8942 (Sept. 28, 1999). Persisting, 
Congress included the fee cap (with minor revisions not  relevant to
this litigation) in a reenacted FY 2000 appropria- tions bill. This
time the President signed. See Section 129,  District of Columbia
Appropriations, 2000, Pub. L. No. 106- 113, 113 Stat. 1501, 1517


Before the enactment of the FY 2000 appropriations bill,  seven
disabled children and their parents filed suit against  the District
in the United States District Court for the  District of Columbia
challenging section 130 of the FY 1999  Appropriations Act. The
families allege that the fee cap  prevents them from retaining
qualified legal counsel on a  contingency basis. One plaintiff unable
to find counsel de- clared: "I spoke with ... one of the attorneys who


in education law ... who informed me that, due to the  passage of
Section 130 of the D.C. Appropriations Act, her  firm was no longer
able to accept special education cases on a  contingency basis. She
indicated that she was not aware of  any other private attorney in the
District of Columbia who  would...."


The families mounted two challenges to section 130. Rely- ing on the
Supremacy Clause of Article VI of the Constitu- tion, they argued that
section 130--which they referred to as  a "local law"--is preempted by
IDEA. They also argued that  by singling out disabled children
residing in the District of  Columbia for unfavorable treatment,
section 130 violates the  Due Process Clause of the Fifth Amendment.
Finally, the  families sought a declaratory ruling that section 130
does not  affect a district court's authority to award reasonable
attor- neys' fees under IDEA. Pursuant to 28 U.S.C. s 2403(a), the 
United States intervened to defend section 130's constitution- ality.
The District of Columbia, which joined the United  States' defense of
the statute, argued that section 130 amend- ed IDEA, thus barring
courts in D.C. from awarding fees in  excess of the amount the


Rejecting plaintiffs' challenges to section 130, the district  court
granted summary judgment in favor of the District.  The court also
rejected the District's interpretation of section  130, ruling that
the rider had "done nothing to affect the  district court's ability
under [IDEA] to base a determination  of reasonable attorneys' fees
[on] rates prevailing in the  community."


The families now appeal, and the District of Columbia  cross-appeals.
Although the United States defends section  130's constitutionality,
it takes no position on the proper  interpretation of the section. Our
review of all issues is de  novo. See Tao v. Freeh, 27 F.3d 635, 638
(D.C.Cir.1994)  ("Our review of the grant of summary judgment is de
novo,  applying the same standards as the district court."); United 
States v. Williams-Davis, 90 F.3d 490, 512 (D.C. Cir. 1996)  (applying
de novo review to a question of statutory construc- tion).


II.


Beginning with the families' appeal, we can easily dispose  of their
Supremacy Clause argument. Because IDEA is  national legislation, the
families argue, it preempts under the  Supremacy Clause any state or
local legislation that impedes  its accomplishment, such as section
130. In support, the  families cite Brown v. United States, 742 F.2d
1498, 1502  (D.C. Cir. 1984) (en banc), where we stated that "Congress
 frequently enacts legislation applicable only to the District 
and.... [a]bsent evidence of contrary congressional intent,  such
enactments should be treated as local law, interacting  with federal
law as would the laws of the several states."  Even assuming the
Supremacy Clause applies to Congress  when it legislates for the
District under Article I, section 8 of  the Constitution--a
proposition for which we have found no  persuasive support--the
families' argument suffers from a  fatal weakness: it requires us to
believe that Congress enact- ed section 130 for the purpose of having
it instantaneously  preempted by a statute enacted over a decade
earlier. See  Cipollone v. Liggett, 505 U.S. 504, 516 (1992) ("[T]he
purpose  of Congress is the ultimate touchstone of pre-emption analy-


We turn to the families' equal protection challenge. They  argue that
section 130, by limiting their ability to obtain  counsel and leaving
them "powerless to enforce their IDEA  rights," treats them
differently from non-D.C. families with  disabled children, in
violation of the equal protection guaran- tee of the Fifth Amendment's
Due Process Clause. See  Bolling v. Sharpe, 347 U.S. 497 (1954)
(applying equal protec- tion principles to the District of Columbia
through the Due  Process Clause of the Fifth Amendment). To assess
this  claim, we must first determine the appropriate level of scruti-
ny. Most laws will survive equal protection challenge if they  bear a
rational relationship to a legitimate governmental  purpose. See Vacco
v. Quill, 521 U.S. 793, 799 (1997). More  searching scrutiny is
reserved for laws that either burden a  suspect class or impinge upon
a fundamental interest. See id.  The families urge us to apply
heightened scrutiny for two  reasons: residents of D.C. are themselves


section 130 burdens the educational opportunities of a disad- vantaged
group, i.e., children with disabilities.


This court has twice considered claims that D.C. residents  comprise a
suspect class. The first case, United States v.  Thompson, 452 F.2d
1333 (D.C. Cir. 1971), concerned a  district court's application of
D.C. bail provisions to deny  appellant bail pending appeal following
his conviction for  violating federal narcotics laws. Appellant argued
that the  D.C. bail provisions applied only to local offenses (ones
con- tained in the D.C. Code) and that because he had been  convicted
of a national offense (one contained in the U.S.  Code), his bail
application should have been judged by the  more lenient criteria
applicable to national offenses in other  jurisdictions. See id. at
1337-38. This court agreed, stating  that application of D.C. bail
provisions to U.S. Code offenses  would violate the Due Process Clause
by treating U.S. code  violations in D.C. differently from such
violations in all other  jurisdictions. See id. at 1340-41. The
opinion contains lan- guage that supports the families' position:


Minorities can usually protect themselves by playing  their role in the
political process and forming coalitions  with other groups to secure
a majority. But it is sense- less to remit District residents to the
political process,  since for them there is no political process....
In this  context, ... the normal arguments for judicial restraint 
become no more than hollow shibboleths grotesquely  detached from the
logic which once supported them....  Therefore, discriminatory
classifications affecting District  residents must be subjected to the
strictest possible  review.


Id. at 1341 (internal citation omitted).


This court next considered the suspect class status of D.C.  residents
in United States v. Cohen, 733 F.2d 128 (D.C. Cir.  1984) (en banc).
Sitting en banc, the court departed from the  reasoning of Thompson
and applied rational basis review to  uphold a statute requiring civil
commitment for D.C. defen- dants found not guilty by reason of
insanity. See id. Ex- plaining why the statute did not burden a
suspect class, 


Cohen first noted that the affected group consisted not just of 
District residents, but "principally of those who commit  crimes
within the District, a class within which ... many  residents of other
states ... are likely to be included...."  Id. at 135. Then, in
language relied on by the government in  this case, Cohen said the


[E]ven if one accepts the thesis that the class in question  is
residents of the District of Columbia, the mere lack of  the ballot
does not establish political powerlessness, or, if  it does, political
powerlessness alone is not enough for  "suspect class" status. Minors,
for example, are not a  suspect class. It is, in any event, fanciful
to consider as  "politically powerless" a city whose residents include
a  high proportion of the officers of all three branches of  the
federal government, and their staffs.


Id. (internal citation omitted).


According to the families, this language is dicta because  the court
interpreted the civil commitment statute as not  classifying on the
basis of residence. The families urge us to  follow Thompson and apply
heightened scrutiny to section  130. We are not so free. Whatever
force Thompson's rea- soning about the status of D.C. residents once
carried, it has  not survived Cohen. To begin with, by pointing out
that the  civil commitment statute at issue in Cohen applies to anyone
 tried in the District, not just to District residents, Cohen 
implicitly undermined Thompson, for notwithstanding  Thompson's
apparent holding that D.C. residents are a sus- pect class, the D.C.
bail provisions also apply to persons tried  within the District,
regardless of residency. Moreover, Co- hen expressly repudiates
Thompson's equal protection rea- soning. "We ... disapprove ... the
rationale expressed in  [Thompson] that distinctive legislative
treatment of the Dis- trict is 'particularly suspect' and thus
requires more than a  rational basis to support it." Id. at 136 n.12.
Although  Cohen's discussion of the suspect class status of D.C. resi-
dents was not critical to its holding--the court had already 
recognized that persons tried within the District need not  reside


within the court. A portion of the court's opinion responds to  a
concurring opinion's effort to devise a framework by which 
differential treatment of D.C. residents would, in certain 
circumstances, raise special equal protection concerns. See  id. at
132 n.10, 136 n.12, responding to id. at 141-50 (Mikva,  J.,
concurring). For all of these reasons, a panel of this court  may not
now depart from the en banc court's conclusion that  D.C. residents do
not comprise a suspect class for equal  protection purposes.


In support of their second argument for heightened scruti- ny--that
section 130 burdens the educational opportunities of  a disadvantaged
group--the families rely on Plyler v. Doe,  457 U.S. 202, 223-24
(1982), which applied heightened scruti- ny to invalidate a Texas
statute denying public education to  children not legally admitted to
the United States. In subse- quent cases, however, the Supreme Court
limited Plyler to its  facts. In Kadrmas v. Dickinson Public Schools,
the Court  rejected a claim that charging some students a fee for
trans- portation to school triggered heightened scrutiny under Plyl-
er, saying "we have not extended [Plyler's] holding beyond  the unique
circumstances that provoked its unique confluence  of theories and
rationales." 487 U.S. 450, 459 (1988) (internal  citations and
quotation marks omitted). Those "unique cir- cumstances" are not
present here. In Plyler, the doors to  the public schools were
completely closed to children of  undocumented aliens. See Plyler, 457
U.S. at 205. Although  section 130 may make it less likely that
disabled children will  receive an education that conforms to IDEA,
the doors to the  schoolhouse remain open, as they did in Kadrmas. And
the  Supreme Court has made clear that a statute burdening the 
educational opportunities of disadvantaged children does not  by that
fact alone trigger heightened scrutiny. See San  Antonio Independent
School Dist. v. Rodriguez, 411 U.S. 1  (1973) (applying rational basis
review to uphold Texas's use of  property taxes to finance local
school districts even though  that funding system resulted in fewer
educational opportuni- ties for poor students than for students in


We thus review the families' equal protection challenge  under the
rational basis standard. We ask whether "there is a  rational
relationship between the disparity of treatment and  some legitimate
governmental purpose." Heller v. Doe, 509  U.S. 312, 320 (1993). "On
rational-basis review, a ... statute  ... comes to us bearing a strong
presumption of validity, and  those attacking the rationality of the
legislative classification  have the burden to negative every
conceivable basis which  might support it." FCC v. Beach
Communications, Inc., 508  U.S. 307, 314 (1993) (internal citations


Pointing to The Washington Post article, the District's  brief refers
to "evidence of abuse by attorneys in the legal  services process,"
presumably implying--though never direct- ly so stating--that section
130 was designed to curb excessive  or unjustified fees. The families
and their lawyers resist any  such charges, and at oral argument
counsel for the District  conceded that the city has no evidence of
attorney miscon- duct. The District, moreover, "adopts" the United
States'  brief, which argues not that section 130 stemmed from evi-
dence of attorney abuse, but that in view of DCPS's manifest 
inability to meet its obligations under IDEA, Congress could 
rationally have concluded that "it was more important for the 
District to spend its funds on remedying these systemic  defects and
providing primary services rather than upon  litigation fees."
According to the government, then, section  130's legitimate
governmental purpose is to assist disabled  children in D.C. by
allocating additional funds to primary  special education services.
The statute is rationally related to  that objective, we are left to
infer, because limiting payments  to attorneys will leave more funds


The families raise several reasons to doubt that section 130  will
yield the benefits claimed by the government. As the  families point
out, nothing requires DCPS to reallocate sec- tion 130 savings to
special education services, nor does the  record indicate that such
funds have been so reallocated.  Rather, the families claim, the
District's annual budget has  simply been reduced by the amount of
fees saved. Moreover, 


section 130 limits attorneys' fees even when paid from sources  other
than DCPS's budget; while the statute caps fees for  both
administrative proceedings and court litigation, pay- ments for the
latter come from the Corporation Counsel's  Settlement and Judgment
fund. Finally, the families ask,  even if section 130 actually made
more funds available for  special education, would any improvements
that might flow  from such expenditures outweigh section 130's harmful


Whatever the doubts about section 130, "rational-basis  review in equal
protection analysis is not a license for courts  to judge the wisdom,
fairness, or logic of legislative choices."  Heller, 509 U.S. at 319
(internal quotation marks omitted).  "The Constitution presumes that,
absent some reason to infer  antipathy, even improvident decisions
will eventually be recti- fied by the democratic process and that
judicial intervention  is generally unwarranted no matter how unwisely
we may  think a political branch has acted." Beach Communications, 
508 U.S. at 314. Moreover, "courts are compelled under  rational-basis
review to accept a legislature's generalizations  even when there is
an imperfect fit between means and ends."  Heller, 509 U.S. at 321.


Applying these highly deferential principles, we cannot  conclude that
Congress acted irrationally. Assisting disabled  children is a
legitimate governmental purpose. It is at least  conceivable,
moreover, that capping fees will produce addi- tional resources for
direct educational services, and that,  despite limiting parents'
ability to use litigation as a means of  enforcing IDEA, section 130
will yield a net benefit for  disabled children. Notwithstanding the
doubts of the families  and the President, supra at 12-13, 6, that
possibility suffices  for the statute to survive rational basis


III.


In its cross-appeal, the District argues that section 130 not  only
prohibits the District from paying attorneys' fees greater  than the
prescribed amounts, but also prohibits courts from  awarding such
fees. In resolving this claim, we are guided by 


the well-settled principle that "[w]hile appropriation acts are  'Acts
of Congress' which can substantively change existing  law, there is a
very strong presumption that they do not."  Building & Construction
Trades Dept., AFL-CIO v. Martin,  961 F.2d 269, 273 (D.C. Cir. 1992).
As we have elsewhere  observed, "the established rule [is] that, when
appropriations  measures arguably conflict with the underlying
authorizing  legislation, their effect must be construed narrowly.
Such  measures have the limited and specific purpose of providing 
funds for authorized programs." Donovan v. Carolina Stal- ite Co., 734
F.2d 1547, 1558 (D.C. Cir. 1984) (internal citation  and quotation
marks omitted). Applying this principle, we  agree with the district
court that section 130 limits only  District authority to pay fees
from FY 1999 appropriations,  not court authority to award fees under


We begin, as we must, with section 130's plain language:  "None of the
funds contained in this Act may be made  available to pay the fees of
an attorney who represents a  party who prevails in an action ...
brought against [DCPS]  under [IDEA]" in excess of $50 per hour or
$1,300 total.  Note that nothing in section 130 restricts court
authority to  award fees under section 1415(i)(3)(B) of IDEA; the
rider  concerns only District authority to pay fees from FY 1999 
appropriations. As the district court observed, section 130  and IDEA
regulate different government authorities: "The  IDEA attorney's fees
provision provides the courts with  discretion ... to award reasonable
attorneys' fees. By con- trast, section 130 governs the District of
Columbia's appropri- ations and right to pay those fees."


To be sure, restricting federal court authority to award fees  might
have been one way for Congress to help DCPS address  its special
education problems. It is not our function, howev- er, to determine
whether such a limitation would "accor[d]  with common sense and the
public weal. Our Constitution  vests such responsibilities in the
political branches." Tennes- see Valley Authority v. Hill, 437 U.S.
153, 195 (1978) (internal  quotation marks omitted); but see Slip Op.
at 6 (Ginsburg, J.,  dissenting) (arguing that "common sense tells us"


130 is "a limitation upon the district court's authority to  award
attorneys' fees").


In view of the "very strong presumption" that appropria- tion acts do
not amend substantive law, we face a straightfor- ward question of
statutory construction: has Congress unam- biguously expressed an
intent to limit court authority to  award fees under IDEA? When
Congress wants to use an  appropriations act to limit court authority,
it knows precisely  how to do so. For example, section 311 of the 2000
Appropri- ations Act says, "section 5 of the Y2K Act ... is amended" 
to state that "punitive damages in a Y2K action may not be  awarded
against an institution of higher education." Section  311,
Consolidated Appropriations Act, 2000, Pub. L. 106-113,  113 Stat.
1501, 1537 (Nov. 29, 1999). Section 130 contains no  similar limiting


The District argues that even if section 130 does not  expressly amend
IDEA, the appropriations rider nevertheless  represents an implied
limit on court authority to award fees.  Otherwise, the District
claims, section 130 might increase the  District's eventual fee
liability by encouraging litigation to  recover fees in excess of
section 130's caps. Repeals by  implication, however, are
disfavored--a policy that "applies  with even greater force when the
claimed repeal rests solely  on an Appropriations Act." TVA, 437 U.S.
at 190. "[I]n the  absence of some affirmative showing of an intention
to repeal,  the only permissible justification for a repeal by
implication is  when the earlier and later statutes are
irreconcilable." Id.  (internal quotation marks omitted). No
irreconcilable conflict  exists here since, as we have pointed out,
section 130 and  IDEA are directed at different governmental


Like the district court, we recognize the potential incongru- ity of
courts' awarding fees that section 130 prohibits the  District from
paying during the same fiscal year. As the  Supreme Court has made
clear, however, reconciling inhar- monious statutory directives is
Congress' responsibility, not  courts'. In TVA v. Hill, the Supreme
Court faced a situation  similar to this case. Acting pursuant to the
Endangered  Species Act, 16 U.S.C. s 1531 et seq., the Sixth Circuit
halted  construction of a nearly completed TVA dam in order to 
preserve the critical habitat of the snail darter. See TVA, 437  U.S.
at 168-70. In the Supreme Court, TVA argued that 


Congress, by appropriating funds for completion of the dam  after
learning that the snail darter had been placed on the  endangered
species list, had implicitly amended the Endan- gered Species Act to
allow construction to continue. See id.  at 189-90. Disagreeing, the
Court explained that "[w]hile it  is emphatically the province and
duty of the judicial depart- ment to say what the law is, it is
equally--and emphatically-- the exclusive province of the Congress not
only to formulate  legislative policies and mandate programs and
projects, but  also to establish their relative priority for the
Nation." Id. at  194 (internal citation and quotation marks omitted).
Just as  the Supreme Court left it to Congress to resolve the incon-
gruity of appropriating funds for a dam that another statute 
prohibited, we leave to Congress the resolution of the incon- gruity


The cases relied on by the dissent do not require a differ- ent result.
See Slip Op. at 2-11 (Ginsburg, J., dissenting).  In American
Federation of Government Employees, AFL- CIO v. Campbell, 659 F.2d 157
(D.C. Cir. 1980), we held that  an appropriations rider containing
language similar to section  130 "modified pro tanto" a substantive
statute. 659 F.2d at  161. The rider provided that "[n]o ... funds
appropriated  for the fiscal year [1979] may be used to pay the salary
or pay  of any individual ... in an amount which exceeds [a five and 
one-half percent raise] as a result of any adjustments ...  under [the
'prevailing rate' act]." Pub. L. No. 95-429,  s 614(a), 92 Stat. 1001,
1018 (1978). Had the prevailing rate  statute been given effect,
government employees would have  received raises in 1979 of between
seven and twelve percent.  Because of the appropriations rider,
however, pay increases  that year were limited to five and a half
percent. Govern- ment employees "sued to enforce their alleged rights
to wage  increases based solely on the ... prevailing rate statute." 
Campbell, 659 F.2d at 159. We rejected their claim, conclud- ing that
the appropriations act, by including a new ceiling on  wage increases,
and "by express reference to the earlier  statute, effectively
modified [it]." Id. at 161. We thus gave  the appropriations act the
effect that its express terms re- quired--limiting pay increases for


Observing that section 130 expressly refers to IDEA and  includes a fee
schedule, our dissenting colleague relies on  Campbell for the
conclusion that Congress intended to modify  IDEA. See Slip Op. at 4-5
(Ginsburg, J., dissenting). We  think Campbell and this case are
different. As in Campbell,  we have given the rider the effect that
its plain text re- quires--limiting the District's payment of fees for
FY 1999-- but this case presents an additional question, one not
raised  in Campbell: in the absence of clear legislative intent, evi-
denced either through statutory language or legislative histo- ry, to
amend substantive law, does an appropriations act  funding one
governmental entity restrict the substantive au- thority of a separate
entity, indeed a separate branch of  government? Given the "very
strong presumption" that ap- propriation acts do not amend substantive
statutes, neither  section 130's reference to IDEA nor its fee
schedule warrants  an inference that an appropriations rider directed
at the  District of Columbia restricts the authority of the federal 
courts. Indeed, Congress could hardly have identified the  class of
payments affected by section 130 without mentioning  IDEA. Nor could
Congress have limited the District's FY  1999 payments without


If, as the dissent claims, section 130's ceiling on payments  and
reference to IDEA sufficed to modify IDEA, the existing  presumption
would be reversed and replaced with a presump- tion that appropriation
riders do amend substantive law.  Under the dissent's theory, Congress
could limit the District's  fee payments from particular
appropriations without also  restricting court authority to award fees
only by adding an  express statement that substantive law remains
intact. That  is not the law of this circuit.


National Treasury Employees Union v. Devine, 733 F.2d  114 (D.C. Cir.
1984), is equally distinguishable. See Slip Op.  at 10 (Ginsburg, J.,
dissenting). That case concerned Office  of Personnel Management
regulations establishing new per- sonnel policies for federal
employees. Dissatisfied with the  new policies, Congress passed an
appropriations rider provid- ing that "[n]one of the funds
appropriated under this Act  [funding OPM] shall be obligated or


promulgate, administer, or enforce [the OPM regulations]."  Devine, 733
F.2d at 116. The Director of OPM interpreted  the rider to mean that
"each federal agency would simply  have to administer and enforce the
regulations without OPM's  assistance...." Id. at 116. We rejected
this interpretation  of the rider, resting our decision on two
factors. First,  because "the express terms of the regulations
require[d]  OPM to play a critical and continuing role in their
implemen- tation, administration, and enforcement," id. at 119, we
doubt- ed whether the regulations could "sensibly ... be effectuated 
without OPM's continued participation." Id. at 120. Indeed,  we viewed
the Director's interpretation of the rider as "abdi- cating [OPM's]
central responsibility for executing, adminis- tering, and enforcing
civil service rules and regulations." Id.  at 119 (internal quotation
marks omitted). Second, after  examining the rider's legislative
history, we found "clear  indications of Congress' intent" to
foreclose significant  changes in personnel management policies. Id.


Neither factor is present in this case. To begin with,  because the
District plays no role in a court's awarding of  fees, section 130
does not prevent the implementation of  IDEA's fee provision in the
same manner as the rider in  National Treasury Employees Union v.
Devine impeded  implementation of OPM's regulations. Nor, for the same
 reason, does section 130 produce any "abdication" of District 
responsibility. Moreover, section 130's legislative history 
demonstrates no clear congressional intent to amend IDEA.  Although
the House Appropriations Committee wrote of an  earlier version of
section 130 that it would limit "the award of  attorney fees," H.R.
Rep. No. 105-670, at 50 (1998), see also  Slip Op. at 5 (Ginsburg, J.,
dissenting), the Conference Re- port accompanying the final bill
speaks only of "plac[ing] a  limit on the payment of fees to
attorneys." H.R. Conf. Rep.  No. 105-825, at 1116 (1998). As the
Supreme Court has  observed, "[l]egislative materials may be without
probative  value, or contradictory, or ambiguous, ... and in such
cases  will not be permitted to control the customary meaning of 
words...." United States v. Dickerson, 310 U.S. 554, 562  (1940).


To sum up, because we must narrowly construe section 130,  see Donovan,
734 F.2d at 1558, we interpret it to accomplish 


neither more nor less than its plain text states. The rider's  express
terms restrict District payment of IDEA fees from  FY 1999
appropriations. We give section 130 precisely that  effect. If
Congress wishes to restrict court authority to  award fees against the
District, it may do so either through  the D.C. appropriations bill or
through the enactment of  substantive legislation amending IDEA. But
until Congress  demonstrates clear intent to modify substantive law,
either  through statutory language or persuasive legislative history, 
we presume in accordance with circuit precedent that it did  not use
section 130 to limit the power of federal courts to  award fees under


The decision of the district court is affirmed.


So ordered.


Ginsburg, Circuit Judge, dissenting in part: I concur in  Parts I and
II of the opinion for the Court and in the  judgment in No. 99-5215,
rejecting the families' constitutional  challenges. I dissent from
Part III of the opinion and from  the judgment in No. 99-5216 because
I believe that for FY  1999 the Congress modified the authority of the
district court  to award attorneys' fees under s 615 of the
Individuals with  Disabilities Education Act (IDEA), 20 U.S.C. s


I. Background


The Congress reenacted s 615 of the IDEA with considera- ble revisions
in 1997. See Individuals with Disabilities Edu- cation Act Amendments
for 1997, Pub. L. No. 105-17, s 101,  110 Stat. 37, 88 (1997). Section
615 includes the following  provision for attorneys' fees:


In any action or proceeding brought under this section,  the [district]
court, in its discretion, may award reason- able attorneys' fees as
part of the costs to the parents of  a child with a disability who is
the prevailing party.


Id. at 92, codified at 20 U.S.C. s 1415(i)(3)(B).


The Congress revisited the subject of attorneys' fees in  IDEA cases
two years later when it passed the District of  Columbia
Appropriations Act of 1999. See Omnibus Consoli- dated and Emergency
Supplemental Appropriations Act of  1999, Pub. L. No. 105-277, s
101(c), 112 Stat. 2681 (1998).  Section 130 of the 1999 D.C.


None of the funds contained in this Act may be made  available to pay
the fees of an attorney who represents a  party who prevails in an
action, including an administra- tive proceeding, brought against the
District of Columbia  Public Schools under the Individuals with
Disabilities  Education Act (20 U.S.C. s 1400 et seq.) if (1) the
hourly rate of compensation of the attorney  exceeds the hourly rate
of compensation under section  11-2604(a), District of Columbia Code
[i.e., $50 per hour],  or (2) the maximum amount of compensation of
the attor- ney exceeds the maximum amount of compensation un- der
section 11-2604(b)(1), District of Columbia Code [i.e., 


$1,300 total], except that compensation and reimburse- ment in excess
of such maximum may be approved for  extended or complex
representation in accordance with  section 11-2604(c), District of


Obviously, s 130 has some effect upon attorneys' fees  under the IDEA.
The question before us is what effect: Is  s 130 a limitation for FY
1999 upon the court's pre-existing  authority in s 615 to award
attorneys' fees in excess of $50  per hour and $1,300 per case? Or
does it merely "prohibit[ ]  the District from paying during the same
fiscal year" any fee  the district court might award in excess of
those caps, Slip  Op. at 15, thereby leaving the District liable for
such awards  after the end of that fiscal year? Today the court,
citing an  interpretive presumption and then declining to address the 
evidence offered by the District to overcome that presump- tion, gives
the latter answer. I would give the former: s 130  limits the
authority of the district court under IDEA s 615  because in s 130 the
Congress "by clear implication, if not  express statement, modified
pro tanto the previous substan- tive law." American Federation of
Government Employees  v. Campbell, 659 F.2d 157, 161 (D.C. Cir.


II. Analysis


In Campbell this court held that an appropriations rider  strikingly
similar in text and structure to s 130 modified pro  tanto the prior
substantive statute to which it referred.  There, the plaintiffs were
federal employees whose wages  were determined under the "prevailing
rate statute," 5 U.S.C.  ss 5341-5349 (1976 & Supp. III 1979). That
statute required  that wages be "fixed and adjusted from time to time
... in  accordance with prevailing rates," as determined by wage 
surveys of the private sector to be conducted by "lead  agenc[ies]."
Id. s 5343(a), (a)(3).


The lead agencies had conducted their surveys and recom- mended wage
increases of between 7% and 12% for the  plaintiffs. See Campbell, 659
F.2d at 159. Thus, the employ- ing agencies were required by the
prevailing rate statute to  order pay raises in this 7%-12% range
(except insofar as they 


may have found the "public interest" required less--a point  not
relevant in Campbell or here). Before the employing  agencies had
actually ordered any wage increase, however,  the Congress passed an
appropriations rider that provided:


No ... funds appropriated for the fiscal year [1979] ...  may be used
to pay the salary or pay of any individual  ... in an amount which
exceeds [a 5.5% raise] as a result  of any adjustments which take
effect during such fiscal  year under ... (3) section 5343 of Title 5
... if such  adjustment is granted pursuant to a wage survey....


Pub. L. No. 95-429, s 614(a), 92 Stat. 1001, 1018 (1978). The  Civil
Service Commission interpreted the rider as prohibiting  the employing
agencies from granting any pay increase great- er than 5.5%, and the
agencies therefore ordered raises of  only that percentage. See
Campbell, 659 F.2d at 159.


The plaintiffs argued to this court that the rider did not  modify the
prevailing rate statute, and therefore the employ- ing agencies were
still required by law to order pay raises in  the 7%-12% range
recommended by the lead agencies. See  id. at 160. We rejected this
argument and concluded that for  the fiscal year the appropriations
rider modified the prevail- ing rate statute, limiting the plaintiffs'
salary increase below  the amount that would have been called for
under that  statute. We reached this conclusion based exclusively upon
 two elements in the text of the rider, which we accepted as  clearly
and unequivocally demonstrating that the Congress  meant to and did
modify the preexisting statute.


First, the appropriations rider expressly referred to the  prevailing
rate statute. It was upon precisely this basis that  we distinguished
Tennessee Valley Authority v. Hill, 437 U.S.  153 (1978), upon which
the court relies today, as well as  United States v. Langston, 118
U.S. 389 (1886), which is to  like effect. See Campbell, 659 F.2d at
160-61 & n.9. The  importance of an express reference to the
preexisting statute  is that it ensures that Members of Congress were
aware that  the new legislation would affect the operation of the
preexist- ing statute. See United States v. Hansen, 772 F.2d 940, 944-
45 (D.C. Cir. 1985). The Supreme Court had previously 


recognized the importance of such a reference (or lack there- of) in
TVA v. Hill itself, see 437 U.S. at 189, and two of our  sister
circuits have since done so, see United States v. Joya- Martinez, 947
F.2d 1141, 1144 (4th Cir. 1991); Republic  Airlines, Inc. v. United
States Dep't of Transp., 849 F.2d  1315, 1322 (10th Cir. 1988). But
compare Firebaugh Canal  Co. v. United States, 203 F.3d 568, 576 n.4
(9th Cir. 2000)  (express reference "not [ ] meaningful"), with id. at
579  (Trott, J., dissenting) (express reference crucial).


Second, in Campbell we noted that the Congress had  "specifically set a
ceiling on wage increases" in the appropria- tions rider, which
differentiated the rider from a "mere  failure to appropriate funds."
659 F.2d at 161 n.10. We  distinguished New York Airways, Inc. v.
United States, 369  F.2d 743 (Ct. Cl. 1966), upon this basis. Again,
the Supreme  Court had already drawn the same distinction: The mere
act  of appropriating funds, see TVA v. Hill, 437 U.S. at 190, or of 
failing to do so, see Langston, 118 U.S. at 394, says little  about
the underlying substantive obligation; but inclusion in  an
appropriations act of a new framework to govern the  substantive
obligation indicates that the Congress was modi- fying the prior
statutory framework, see, e.g., United States v.  Mitchell, 109 U.S.
146, 149-50 (1883). Therefore we conclud- ed that because the
"Congress specifically set a ceiling on  wage increases, and directly
referred to the prevailing rate  statute as one of the substantive
statutes affected by the  appropriations bill," the appropriations
rider "contains words  that by clear implication, if not express
statement, modified  pro tanto the previous substantive law."


In s 130 we see the same two textual elements that were  dispositive in
Campbell: It expressly refers to "the fees of an  attorney who
represents a party who prevails in an action ...  under the
Individuals with Disabilities Education Act (20  U.S.C. s 1400 et
seq.)," and it lays out a comprehensive new  framework for determining
fees. As to the second textual  element, this case is an even stronger
one than Campbell:  Where the appropriations rider in Campbell simply
set a cap  on wage increases, s 130 not only sets caps on attorneys'


but also incorporates a detailed procedure by which a court  may, under
specified conditions, waive a cap. Section 130  thus "contains words
that by clear implication, if not express  statement, modif[y] pro
tanto the previous substantive law."  Campbell, 659 F.2d at 161.*


This conclusion drawn directly from the text of s 130 is  also
reflected in the legislative history of that provision. The  District
notes that the House Appropriations Committee, in  the only report to
discuss s 130 in any detail, stated that  s 130 "limit[s] the award of
attorney fees in special education  cases." H.R. Rep. No. 105-670, at
50 (1998) (emphasis sup- plied) (discussing predecessor version of s
130 identical in  relevant respects to enacted version). President
Clinton  agreed, both when he signed s 130 into law, see Statement by 
President William J. Clinton upon Signing H.R. 4328, 34  Weekly Comp.
Pres. Docs. 2108, 2112 (Nov. 2, 1998) ("the Act  also includes
language that would cap the award of plaintiffs'  attorneys' fees in
[IDEA] cases"), and when he vetoed a bill  containing essentially the
same rider the following year, see  District of Columbia
Appropriations Act, 2000--Veto Mes- sage, 145 Cong. Rec. H8941, H8942




__________

n * That s 130 expressly limits only the "pay[ment]" of IDEA 
attorneys' fees raises the possibility--and indeed, as the court 
notes, the presumption--that the Congress meant to affect only the 
payment and not the award of such fees. The Supreme Court has  long
held, however, that the use of "payment" or a similar term in  an
appropriations act does not end a court's inquiry into congres- sional
intent. See United States v. Dickerson, 310 U.S. 554, 561-62  (1940)
("deny[ing] that such words [prohibiting only payment during  a
particular fiscal year] when used in an appropriation bill are  words
of art or have a settled meaning" sufficient to end the court's 
inquiry into congressional intent).


Both the Supreme Court and this court have found that appropri- ations
riders that by their express terms limit or prohibit only  payment may
nonetheless alter the underlying substantive obli- gation and not just
its payment. See United States v. Will, 449  U.S. 200, 205-08, 223-24
(1980); Campbell, 659 F.2d at 159 n.6;  City of Los Angeles v. Adams,
556 F.2d 40, 46 (D.C. Cir. 1977); see  also Tayloe v. Kjaer, 171 F.2d
343, 344 (D.C. Cir. 1948).


2000 provision identical in relevant part to s 130] would cap  the
award of plaintiffs' attorneys' fees in [IDEA] cases")  (emphases
supplied).


Finally, the District argues that the incongruous and plain- ly
unintended results ensuing from the court's interpretation  suggest
that s 130 is a limitation upon the district court's  authority to
award attorneys' fees; common sense tells us the  District is right.
Otherwise, one would have to believe that  the Congress intended
awards of attorneys' fees above the  caps to accumulate as IOUs,
payable at the end of the fiscal  year when the appropriations rider
is no longer operative. Of  course, the Congress does, not
infrequently, decline to appro- priate money for an undertaking
authorized under prior law.  In cases where the prior statute merely
authorizes the under- taking, however, no obligation can lawfully be
incurred until  funds have been appropriated, see 31 U.S.C. Sec.
1341(a); the  effect in such a case is to postpone until a later date
any steps  that actually cause the Government to incur an obligation. 
This case is entirely different: Under the court's interpreta- tion of
s 130, the District will continue to incur additional  liabilities,
which will continue to accumulate while its authori- ty to pay them


The court today does not point to any reason for thinking  the Congress
really intended such a peculiar result. (Nor,  since they chose not to
file a brief in the District's cross- appeal, do the cross-appellee
families suggest any such rea- son; nor did the district court.) There
are, to be sure, cases  in which a court has held that the Congress
delayed only the  payment and not the underlying incurrence of an
obligation,  see, e.g., Langston, 118 U.S. at 394; but these involve
mere  failures to appropriate a sufficient sum where there is no 
other indication the Congress intended that the Government  not incur
new liabilities, see id., or there is specific legislative  history
demonstrating the Congress understood it was not  altering the
Government's underlying liability, see New York  Airways, 369 F.2d at
751. Where, on the other hand, the  Congress has done more than merely
fail to appropriate a  sum sufficient to cover an accumulating
obligation, the Su- preme Court has held that "it is not to be


Congress ... was simply appropriating a part of that which it  knew was
due." Belknap v. United States, 150 U.S. 588, 595  (1893); see also
Will, 449 U.S. at 224 ("Congress intended to  rescind [Adjustment Act]
raises entirely, not simply to con- sign them to the fiscal limbo of
an account due but not  payable"); cf. National Treasury Employees
Union v. De- vine, 733 F.2d 114, 120 (D.C. Cir. 1984) (rejecting
interpreta- tion of appropriations resolution that would have resulted
in  "steady accumulation of unreviewed proposals").


As the District points out in its brief, the result of the  court's
interpretation of s 130 is in fact more than just  peculiar--it
accomplishes the exact opposite of what the  Congress sought to
achieve through s 130. Most IDEA  complaints filed with the District
are resolved in an adminis- trative proceeding before the D.C. school
system, that is,  without resort to the district court. Before s 130
was enact- ed, the District had adopted guidelines under which, as 
required by the IDEA, it would award and pay reasonable  attorneys'
fees in such cases upon the submission of a proper  fee application;
thus in FY 1998 the District, without any  court involvement, approved
and paid $10,400,000 in IDEA  attorneys' fees for administrative
proceedings; during the  same year the District paid only $664,000 in
fees awarded by  the court. When s 130 became effective, however, the
Dis- trict revised its guidelines, in conformity therewith, to pre-
clude any fee application that sought attorneys' fees above  the caps.
In other words, the District interpreted s 130 as  limiting its
authority to award as well as to pay attorneys'  fees above the caps
during FY 1999--an interpretation the  court today necessarily accepts
as correct in the way it tries  to distinguish Campbell, Slip Op. at


Limiting awards by the District without limiting awards by  the
district court would actually increase the District's fee  liability,
however. A family that prevails in an administrative  proceeding but
is denied by the District a "reasonable"  attorneys' fee because the
amount exceeds the caps may  simply repair to the district court for
an award of fees greater  than what the District can award, see Moore
v. District of  Columbia, 907 F.2d 165 (D.C. Cir. 1990) (en banc);


the district court may include in its uncapped award reason- able fees
for the attorneys' fee litigation, see Moore v. District  of Columbia,
674 F. Supp. 901 (D.D.C. 1987) (awarding  $29,357 for IDEA
representation and $19,117 for representa- tion in subsequent
attorneys' fee litigation before the district  court). Under the
court's interpretation of s 130, therefore,  the Congress not only
failed effectively to cap the fees  awarded against the District, it
managed to increase the  District's fee liability--as well as the
District's expenditures  for its own legal representation--by
requiring and enabling  families to go to district court to obtain a
higher award. I do  not think that was what the legislature meant to
do or did.  See Clinton v. New York, 524 U.S. 417, 430 (1998)
(rejecting  interpretation of statute that "would produce an absurd
...  result which Congress could not have intended").


The court today reaches the contrary conclusion by way of  the
presumption that an appropriations act does not alter  substantive
law. Slip Op. at 14, 15, 17. The Supreme Court  has made clear,
however, that a presumption used to inter- pret a statute is "just
that--a presumption [which] may be  overcome" by contrary evidence
that provides a "reliable  indicator of congressional intent." Block
v. Community Nu- trition Inst., 467 U.S. 340, 349 (1984). In keeping
with this  teaching, both the Supreme Court and this court have found 
appropriations acts to have modified preexisting substantive  law in
the light of evidence from the text, see Campbell, 659  F.2d at
160-61, from legislative history, see, e.g., Will, 449  U.S. at 224,
or from the structure of the act, see, e.g.,  Mitchell, 109 U.S. at
149-50; and, yes, in the light of common  sense as well, see, e.g.,
Belknap, 150 U.S. at 595; Devine, 733  F.2d at 120. The District has
sought to overcome the pre- sumption with evidence from all of these
sources; but the  court today, scarcely even acknowledging the
District's argu- ments, relies upon "bare statement[s] of law" instead
of  evaluating the evidence to determine whether "the facts ... 
present a different picture of congressional intent." Camp- bell, 659




__________

n * For example, the court misreads the Supreme Court's decision  in
TVA v. Hill as barring us from considering the District's 


The greatest problem for the court is that no matter how it  analyzes s
130 it runs into Campbell. As for the undoubted  presumption against
finding that an appropriations act effects  a substantive modification
of law, in Campbell we concluded  unequivocally that the
appropriations act repealed pro tanto  the prevailing rate statute,
and the presumption was over- come based upon only the two textual
elements that are  likewise present in s 130. As for the undoubted
rule that  repeal by implication is disfavored, even if we treat s 130
as  an implied repealer--and I do not believe that either this case 
or Campbell involves an implied repealer as exemplified by  the
argument urged upon the Court in TVA v. Hill--the  same two textual
factors provide the "affirmative showing of  an intent to repeal"
required under TVA v. Hill, 437 U.S. at  190.


The court today makes one attempt to distinguish Camp- bell from this
case: In Campbell the employing agency both  granted and paid any wage
increase, whereas in this case the  district court awards fees while
the District pays them. Slip  Op. at 14, 17. That factoid, the court
claims, poses a question  in this case that was not present in
Campbell: "in the absence  of clear legislative intent ... to amend
substantive law, does  an appropriations act funding one governmental
entity re- strict the substantive authority of a separate entity,
indeed a  separate branch of government?" Slip Op. at 17. Assuming 
counterfactually, as the question does, the absence of clear 
legislative intent, the answer would of course be no. In this  case,
however, we have the same evidence of legislative intent 




__________

n extensive and uncontested evidence regarding incongruous out- comes
in order to determine what the Congress most likely meant  by s 130.
Slip Op. at 15. The portion of TVA v. Hill quoted by the  court,
however, Slip Op. at 14, 16, merely states that after a court  has
determined what the Congress commanded in the statute, it  should not
use its remedial discretion effectively to nullify that  command by
withholding a remedy based upon its own "appraisal of  the wisdom or
unwisdom of [the] particular course consciously  selected by the
Congress." Id. at 194. This rule certainly does not  authorize, let
alone require, this court to ignore the District's  arguments about
what the statute means in the first place.


that we held sufficient in Campbell to show the Congress  meant to
modify substantive law. The real issue lurking in  the court's
rhetorical question, then, is not whether evidence  of congressional
intent is required but whether such evidence  can ever show that an
appropriations act funding one govern- mental entity is meant to
restrict the substantive authority of  another entity. As a pair of
cases from this court demon- strates, the answer is yes, if that is
what the Congress  discernably meant the appropriations act to do.


In Devine, 733 F.2d at 114, the Office of Personnel Man- agement had
issued new personnel regulations less than a  month before the
Congress enacted an appropriations rider  stating that "[n]one of the
funds appropriated under this Act  [funding the OPM] shall be
obligated or expended to imple- ment, promulgate, administer, or
enforce the [new OPM  regulations]." 733 F.2d at 116. Based upon the
precise  wording of the rider, the OPM took the position that the
rider  "does not prevent any agency other than OPM from imple-
menting, administering and enforcing the regulations within  that
agency." Id. at 116-17. We rejected that argument for  two reasons,
both based expressly upon the intent of the  legislature: first, the
Congress did not intend personnel  regulations to be applied by other
agencies without the  OPM's involvement; and second, "even assuming
arguendo  that the regulations could be implemented workably without 
further participation by the OPM, it is evident that Congress 


In Donovan, 734 F.2d at 1547, the respondent, who had  been cited for a
mine safety violation, argued that an appro- priations rider
prohibiting the Mine Safety and Health Ad- ministration (MSHA) from
expending appropriated funds to  "enforce any standard, rule,
regulation or order under the ...  Act" precluded the Government from
appealing an adverse  administrative ruling on the mine safety
violation. 734 F.2d  at 1557. We rejected that argument, noting that
the Office of  the Solicitor of Labor, which conducted the appeal, was
not  funded by the MSHA appropriation. We did not stop at that 
observation, however; we went on to inquire into what the  Congress
intended to accomplish through the rider--as evi-


denced by the untoward consequences that would ensue if the 
appropriations rider were interpreted to amend the pre- existing
substantive law applicable to another entity:


[The appropriations rider] was the beginning of an effort  by some
members of Congress to shift [certain mining]  operations from MSHA to
OSHA jurisdiction. That  effort ultimately did not succeed and we
think it would be  wholly unreasonable to suppose that Congress
intended a  temporary suspension to wreak the procedural havoc  with
ongoing appeals that [petitioner] urges. We inter- pret [the rider] to
indicate only Congress' intent that  MSHA initiate no new enforcement


Id. at 1558. Thus, the court did not interpret the rider as  doing
anything more than limiting new enforcement actions  by the MSHA
because there was no indication that the  Congress had the seemingly
unreasonable intent to affect  actions already in the hands of the


Although the results in Devine and Donovan look in differ- ent
directions, they are not in conflict. Quite the contrary,  the court
in each case asked precisely the same question: Did  the Congress
intend an appropriations act that expressly  places limits upon only
one governmental entity to limit the  authority of another
governmental entity? In Devine the  court said yes, while in Donovan
the court (acting two weeks  later through two of the same judges)
said no. The question  should be the same here as well, and based upon
the text of  s 130 and the incongruities that will result from the
contrary  interpretation, I think the clear answer is that the
Congress  did intend s 130 to modify pro tanto s 615 of the IDEA.*




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n * The court finds Devine "distinguishable" on the ground that the 
legislative history was more clear in that case. Slip Op. at 17-18. 
In other words, the court does not dispute that the Congress may 
limit the authority of an entity not specifically named in the
statute;  it seems to think, however, that the court must find a
statement to  that effect in the legislative history in order for us
so to conclude. I  think it more appropriate to rely primarily upon
the textual ele- ments to which Campbell directs us--all the more


III. Summary and Conclusion


The text of s 130 makes clear that the Congress modified  for FY 1999
the authority of the district court to award  attorneys' fees under s
615 of the IDEA, 20 U.S.C. s 1415.  Even if s 130 is analyzed under
the rubric of an implied  repealer, the same text provides the clear
and manifest  "affirmative showing of an intention to [modify]"
required  under TVA v. Hill, 437 U.S. 190. I therefore dissent from 
Part III of the opinion for the Court and from the judgment  in No.




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n view of the absurd results brought on by the contrary interpreta-
tion--and only secondarily upon legislative history.