author: EDWARDS, Senior Circuit Judge:

text:
    WINSTON & STRAWN, LLP, Appellee v. James P. MCLEAN, Jr., Appellant
    No. 14-7197
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 20, 2016
    Decided December 9, 2016

      Michael Skopets, Washington, DC, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs were Anthony F. Shelley and Brian A. Hill, Washington, DC, appointed by the court.
    James P. McLean, Jr., pro se, filed the briefs for appellant.
    Paul J. Mabney, Washington, DC, argued the cause and filed the brief for appellee Winston & Strawn, LLP

      Before: WILKINS, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.
   EDWARDS, Senior Circuit Judge:

The Federal Rules of Civil Procedure state that the District Court “shall grant summary judgment if the movant shows that there is no genuine dispute as' to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, under its Local Rules, the District Court has discretion to treat a motion “as conceded” if the nonmoving party fails to timely file an opposition to the motion. D.D.C. Local R. 7(b). This appeal concerns the interplay between Federal Rule of Civil Procedure 56 and the District Court’s Local Rule 7(b).

In April of 2013, Appellee Winston & Strawn, LLP (“Appellee” or “Winston & Strawn”) filed a lawsuit against James P. McLean, Jr. (“Appellant” or “McLean”) in the District Court. On July 28, 2014, Ap-pellee filed a motion for summary judgment. The District Court informed Appellant that he was required to respond by August 18, 2014, and advised him that if he did not the court might treat the motion as conceded. He mailed his response to the District Court on August 18, but it did not arrive until August 20. On August 19, the court, relying solely on Local Rule 7(b), granted Appellee’s motion for summary judgment “as conceded.” The District Court thereafter denied Appellant’s motions for reconsideration. Appellant, acting pro se, filed a timely notice of appeal on December 11, 2014. This court subsequently appointed Miller & Chevalier amicus curiae to present arguments on behalf of McLean.

Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be “conceded” for want of opposition. “The burden is always on the movant to demonstrate why summary judgment is warranted. The nonmoving party’s failure to oppose summary judgment does not shift that burden.” Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring). The District Court “must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.” Id. (citing Fed. R. Civ. P. 56(e)(3)). In this case, the District Court relied solely on Local Rule 7(b) in granting summary judgment for Appellee “as conceded.” There is nothing to indicate that the District Court considered whether Appellee’s assertions wárranted judgment under Rule 56. We therefore reverse and remand the case to the District Court so that it may reconsider Appellee’s motion for summary judgment in adherence with the applicable Federal Rules of Civil Procedure.

I. Background

As noted above, Appellee filed a lawsuit against Appellant in April 2013. It moved for summary judgment on July 28, 2014. The District Court--issued an order advising Appellant of the motion, informing him of- his obligations, and warning him that the court might treat the motion as conceded if he failed to respond by August 18, 2014. On August 18, McLean e-mailed his opposition to counsel for Winston & Strawn,, and mailed it to the District Court. His opposition did not reach the court until August 20, however, and so was not deemed filed until two days after the prescribed deadline.

On August 19, the District Court sua sponte issued an order granting Winston & Strawn’s motion for summary judgment “as conceded as to” McLean. Appendix of Amicus Cwriae (“App.”) 18. The order did not analyze any of the substance of Winston & Strawn’s motion for summary judgment, nor did it purport to apply the standards of Rule 56. Instead, the order focused solely on McLean’s failure to file a timely response as the basis for summary judgment against him.

Between August 28 and November 13, 2014, McLean filed, and the District Court denied, via minute orders, three motions for reconsideration. In these orders, the court reiterated that it had granted Appel-lee’s motion “as conceded.” App. 20-23.

On appeal, amicus curiae, on behalf of Appellant and whose arguments we will hereinafter attribute to Appellant, principally argues that the District Court’s order granting summary judgment to Appellee should be reversed because the court failed to follow the standards set forth in Federal Rule of Civil Procedure 56. In particular, Appellant contends that the District Court’s reliance solely on Local Rule 7(b) cannot be squared with Rules 56(a) and 56(e). Appellant also argues that the District Court abused its discretion in granting summary judgment as a sanction for his late filing, because this wás an excessive punishment and exceeded the court’s authority. Finally, Appellant argues that because his late filing was “excusable neglect,” the District Court abused its discretion in denying his motions for reconsideration.

We agree with Appellant that, contrary to Rule 56, the District Court erred in granting summary judgment without determining whether Appellee’s assertions warranted judgment. A court must always engage in the analysis required by Rule 56 before acting on a motion for summary judgment: Because the District Court did not purport to do this in granting Appel-lee’s motion, we reverse and remand this case for further consideration. Our holding on this point is dispositive, so it is unnecessary for us to address Appellant’s remaining claims.

II. Analysis

A. Standard of Review

We review de novo the legal question of whether the District Court improperly applied Local Rule 7(b) in place of the standards prescribed by Federal Rule of Civil Procedure 56. See Texas v. United States, 798 F.3d 1108, 1113 (D.C. Cir. 2015) (“A district court abuses its discretion if it did not apply the correct legal standard ... or if it misapprehended the underlying substantive law. We examine any such legal questions de novo.” (internal quotation marks and citation omitted; ellipsis in original)).

B. Under Rule 56, Motions for Summary Judgment May Not Be Granted “As Conceded” for Want of Opposition

It is undisputed that the District Court is authorized to promulgate local rales. Fed. R. Civ. P. 83(a)(1). However, these rules “must be consistent with the Federal Rules of Civil Procedure.” Cohen v. Bd. of Trustees of the Univ. of D.C., 819 F.3d 476, 481 (D.C. Cir. 2016) (citing Fed. R. Civ. P. 83(a)(1)). The Federal Rules are “as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the ... mandate [of a Federal Rule] than they do to disregard constitutional or statutory provisions.” Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988) (stating that “a federal court may not invoke supervisory power to circumvent” the dictates of a Federal Rule of Criminal Procedure, id. at 254, 108 S.Ct. 2369).

Local Rule 7(b) cannot be squared with Federal Rule of Civil Procedure 56. The Local Rule states that:

Within 14 days of the date of service [of a motion] or at such other time as the Court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time,- the Court may treat the motion as conceded.

D.D.C. Local R. 7(b) (emphasis added). As is clear from its terms, this rule allows the District Court to treat an unopposed motion for summary judgment as conceded. But this cannot be so because of the demands of Rules 56(a) and 56(e).

Rule 56(a) is clear in saying that a court may only enter summary judgment if “there, is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). And then “a district court must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.” Grimes, 794 F.3d at 95 (citation omitted). These standards cannot be satisfied if, as allowed by Local Rule 7(b), the District Court simply grants judgment “as conceded” when the nonmoving party fails to meet a deadline.

Furthermore, Local Rule 7(b) is entirely inconsistent with the commands of Rule 56(e). The Federal Rule states that;

If a 'party fails ... to properly address another party’s assertion of fact as required by Rule 56(c), the court may:
(1)give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials— including the facts considered undisputed — show that the movant is entitled to it; or
(4) issue any other appropriate order.

Fed. R. Civ, P. 56(e). The rule does not in any way endorse an approach pursuant to which the District Court may grant judgment “as conceded” simply because a non-moving party fails to respond.

Rule 56(e)(1) empowers the District Court to “give a party who has failed to address a summary judgment movant’s assertion of fact ‘an opportunity to properly support or address’ the-fact.” Grimes, 794 F.3d at 92 (quoting Fed. R. Civ. P. 56(e)(1)). Moreover, “[t]he 2010 Advisory Committee[’s] Note to Rule 56(e)- states that ‘affording] an opportunity to properly support or address [a] fact’ is. ‘[i]n many circumstances ... the court’s, preferred first step.’ ” Id. (ellipsis in original).

The rule also allows the District Court to “consider [a] fact undisputed” if it has not been properly supported or addressed as required by Rule 56(c). Fed. R. Civ. P. 56(e)(2). “Indeed, for the‘ evidentiary burden that Rule 56(c) places on nonmovant plaintiffs to function, a court must be able to evaluate an inadequately supported assertion of material fact and deem it not materially disputed, such that summary judgment is warranted in whole or : in part.” Grimes, 794 F.3d at 92. However, .as the rule makes clear, judgment is granted only after the District Court satisfies itself that the record and any undisputed material facts justify granting, summary judgment. Fed. R. Civ. P. 56(e)(3).

What is crucially important here is- that Rule 56(e)(3) plainly states that the District Court may enter summary judgment only if, after fully considering the merits of the motion, it finds that it is '-warranted. There is no room for a judgment “as conceded” as contemplated by Local Rule 7(b).

Appellee argues that the court’s decision in FDIC v. Bender, 127 F.3d 58 (D.C. Cir. 1997), requires us to affirm the judgment of the District Court in this case. We disagree. In Bender, we held that “it was not an abuse of discretion for the district court, pursuant to [the predecessor to Local Rule 7(b) ], to treat the [movant’s] motion for summary judgment as conceded.” Id. at 68. However, the decision in Bender has been displaced by the substantive revisions to Rule 56 that were adopted in 2010. The 2010 Advisory Committee’s Note to Rule 56 makes it plain that Local Rule 7(b) can no longer coexist with Rule 56. The Note says, inter alia, that:

Subdivision (a) ... adds a new direction that the court should state on the record the reasons for granting or denying [a motion for summary judgment].
[S]ummary judgment cannot be granted by default even if there is a complete failure to respond‘to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements. Nor should it be denied by default even if the movant completely fails to reply to a nonmovant’s response.
Subdivision (e)(3) recognizes that the court may grant summary judgment only if the motion and supporting materials — including the facts considered undisputed under subdivision (e)(2) — show that the movant is entitled'to it. Considering some facts Undisputed does not of itself allow summary judgment. If there is. a proper response or reply as to some facts, the court cannot grant summary judgment without determining whether those facts can be genuinely disputed. Once the court has determined the set of facts — both those it has chosen to consider undisputed for want of a proper response .or reply and any that cannot be • genuinely disputed despite a.procedurally proper. response ■ or reply — it must determine the legal consequences of these facts and permissible inferences from them.

Fed. R. Civ. P. 56 Advisory Committee’s Note to 2010 Amendment. In light of these amendments to Rule 56, our decision in Bender is of no moment here because it does not address the current version of Rule 56. And as we have explained, under the current version of Rule 56 a motion for summary judgment cannot be deemed “conceded” for want of opposition.

C. Other Matters Regarding the Scope of this Decision

Lest there be any confusion regarding our judgment in this ease, there are three other matters that warrant comment.

First, we want to make it clear that nothing in this opinion is meant to address the scope or legality of Local Rule 7(h). That rule appears to be coterminous with Federal Rule 56(e)(2), but we offer no opinion on this point. The District Court in this case relied solely on Local Rule 7(b), not 7(h), so bur decision is limited to the issues raised by Local Rule 7(b). We also want to make it clear that nothing in this opinion is meant to address the applicability of Local Rule 7(b) to motions other than motions for summary judgment.

Second, there is nothing in the record to indicate that Appellee acted inappropriately in seeking summary judgment, and we do not mean to suggest otherwise. Nor do we mean to suggest that the District Court failed to scrutinize the motion for summary judgment and the supporting papers filed by Appellee. We simply hold that a District Court must determine for itself that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, and then “should state on the record the reasons for granting or denying the motion.” Fed. R. Civ. P. 56(a). That did not happen here. All that we know from the record in this case is that the District Court relied solely on Local Rule 7(b) in granting summary judgment for Appellee “as conceded.”

Finally, Appellee’s counsel suggested that because we review summary judgments de novo, we can decide on our own whether the motion should be. granted in this case. We decline the invitation. Given the nature of this case, it would be imprudent for us to act without allowing the District Court to decide the matters in dispute in the first instance. Rule 56(e) gives the District Court a.number of.options to weigh. The trial judge, who has overseen the litigation, is in the best position at this point to consider these options and decide whether Appellant, who was acting pro se, should be given an opportunity to respond to Appellee’s motion for summary judgment after missing the deadline by only two days.

III. Conclusion

■ For the reasons stated above, we reverse the grant of summary judgment and remand the case for further consideration.


source: Caselaw Access Project

author: RANDOLPH, Senior Circuit Judge: EDWARDS, Senior Circuit Judge,

license: Public Domain

text:
    Ronald M. SMITH, Appellant v. UNITED STATES of America, et al., Appellees
    No. 15-5238
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 9, 2016
    Decided December 9, 2016

      Gregory L. Lattimer, Washington," DC, argued the cause and filed the briefs for appellant.
    W. Mark Nebeker, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were R. Craig Lawrence and Marian L. Borum, Assistant U.S. Attorneys.
    Before: PILLARD, Circuit Judge, and EDWARDS and RANDOLPH, Senior Circuit Judges.
   Concurring opinion filed by Senior Circuit Judge EDWARDS.

RANDOLPH, Senior Circuit Judge:

Ronald M. Smith sued the United States and two United States Capitol Police Officers — Corey Rogers and Lawrence 0. Anyaso. Smith’s complaint alleged false arrest, malicious prosecution, -intentional infliction of emotional distress, and, against the officers, a violation of his rights under the Fourth Amendment to the Constitution. He sought $5,000,000 in compensatory and punitive damages.

The district court, K.B. Jackson, J., in a comprehensive opinion, granted summary judgment in favor of the defendants. Smith v. United States, 121 F.Supp.3d 112, 115 (D.D.C. 2015). Smith’s main arguments on appeal are that the court erred in deciding that no material facts were in .dispute and in refusing to allow Smith to conduct discovery before the court ruled on the defendants’ summary judgment motion.

Smith’s complaint alleged that while he was working for a federal agency, he drove several agency officials to Capitol Hill on November 5, 2009. The area surrounding the Capitol and the Senate and House office buildings is heavily guarded, with barricades at the entrances to the Capitol grounds, some of which are retractable to allow authorized vehicles to enter. When Smith pulled into the driveway approaching one of these attended barricades to drop off his passengers, Officer Rogers walked over to him. According to the complaint, Officer Rogers “began to chastise and yell at him for dropping off his passengers at that location.” Compl. ¶ 7. A heated conversation ensued. Smith then made a U-turn and left the area. Officer Rogers radioed other officers, stating — according to the complaint — that Smith’s car struck the officer’s leg as Smith drove away. A few minutes later, Officer Anyaso arrested Smith for assault with a deadly weapon and assault on a police officer. The complaint further alleged that Smith spent the night in jail. The United States Attorney charged Smith with assault on a police officer, a misdemeanor offense, D.C. Code § 22-405, and offered him a plea bargain, reducing the crime to simple assault, which Smith did not accept. Five months later, in April 2010, the government moved to dismiss the charges against Smith, a motion the Superior Court granted with prejudice.

The defense filed a motion to dismiss or, in the alternative, for summary judgment, countering the complaint with a video recording (no audio) of the incident and an audio recording of Officer Rogers’ radio transmission. The government had provided Smith with copies of these recordings while his criminal case was pending and Smith’s complaint in this case relied on some of this material. The audio recording, which triggered Smith’s arrest, contradicted what Smith alleged in his complaint, as he later admitted. Smith, 121 F.Supp.3d at 116 n.2. Officer Rogers did not report on the audiotape that Smith’s car hit him. In the recording, Officer Rogers stated that Smith “intentionally almost struck this officer.” Audio tape: U.S.. Capitol Police Dispatch (Nov. 5,2009). The video also contradicted Smith’s complaint. It shows Officer Rogers, in full uniform, turning away from Smith’s car and walking back toward his duty post. At this moment, the video “captured Smith looping around and pulling away . aggressively ■_ [clearly showing] that Smith drove the car toward [Officer] Rogers, and that the passenger side of Smith’s car was close to [Officer] Rogers when the car passed by.” Smith, 121 F.Supp.3d at 115-16. Smith pulled away from the driveway “much faster than he pulled in, and ... drove in the confined area aggressively and at a higher rate of speed than either of the two vehicles that had entered the checkpoint” during the encounter. Id. at 120-21.

Smith sued under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, in his action against the United States, and pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in his Fourth Amendment claim against the officers. Under District of Columbia law, simple assault has three elements: “(1) an act on the part of the accused (which need not result in injury); (2) the apparent present ability to injure the victim at the time the act is committed; and (3) the intent to perform the act which constitutes the assault at the time the act is committed.” Ruffin v. United States, 642 A.2d 1288, 1295 (D.C. 1994). Physical contact is not required. As to assault with a dangerous weapon, the dangerous weapon can be a vehicle. See Frye v. United States, 926 A.2d 1085, 1096-97 (D.C. 2005). As to assault on a police officer, there is the added element “that the defendant knew or should have known the victim was a police officer.” In re J.S., 19 A.3d 328, 330 (D.C. 2011) (internal quotation marks eliminated).

The district court analyzed the governing law of the District of Columbia regarding the crime of assault and carefully reviewed the recordings, taking note of how they contradicted Smith’s version of the events in his complaint. Smith, 121 F.Supp.3d at 120-24. The court concluded that the defendant officers had probable cause to arrest Smith for assault with a deadly weapon and assault on a police officer. A “reasonable officer,” the court concluded, “would have felt threatened by the proximity of the fast-moving vehicle” to his body. Id. at 121. The fact that Officer Rogers was in uniform was more than enough to establish the additional element of assault on , a police officer. The existence of probable cause foreclosed not only Smith’s false arrest, malicious prosecution and Fourth Amendment claims, but also his claim of intentional infliction of emotional distress based on his arrest. See Amobi v. D.C. Dep’t of Corr., 755 F.3d 980, 989-90, 992-93 (D.C. Cir. 2014); Kotsch v. District of Columbia, 924 A.2d 1040, 1046 (D.C. 2007). The. court also held that Smith had failed to allege any facts outrageous enough to constitute intentional infliction of emotional distress. Smith, 121 F.Supp.3d at 125-26.

Smith argues that the court should not have granted summary judgment without giving him an opportunity to engage in discovery. Under Rule 56(d) of the Rules of-Civil Procedure, if a party opposing summary judgment submits an affidavit showing that he cannot present facts justifying his opposition, the court “may” allow time for discovery. Convertino v. U.S. Department of Justice, 684 F.3d 93, 99-100 (D.C. Cir. 2012), holds that a Rule 56(d) affiant must, among other things, “outline the particular facts he intends to discover and describe why those facts are necessary to the litigation,” and he must explain why he cannot provide evidence to counter his opponent’s summary judgment motion. Smith did neither.

Smith had already been provided with the police reports and documents, statements, photographs, and audio and video recordings in connection with the case. But in his Rule 56(d) affidavit, Smith’s lawyer stated only that the “plaintiff, at a minimum, needs to depose the named defendants, and the individuals who claim to be eyewitnesses.” Joint Appendix 142. The affidavit gave no further explanation. Smith’s memorandum opposing summary judgment stated:' “At a minimum, the plaintiff needs to depose the two(2) [sic] named defendant officers to ascertain why they took the actions that they took at the time that they did so; and the plaintiff needs to depose [a non-party witness] about her actual observations which are somewhat at odds with the video.” Id. at 116. (After viewing the video, this witness stated that it fairly reflected what she had seen.) Smith does not specify how, on this record with its undisputed facts showing probable cause, discovery regarding the officers’ state of mind could create a material factual dispute. When pressed at oral argument, Smith’s lawyer could offer no details about what additional material facts he expected to discover.

Because the affidavit failed to state with “particularity why additional discovery [was] necessary,” the district court acted well within its discretion in denying Smith’s request. U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (quoting Convertino, 684 F.3d at 99). His lawyer’s affidavit explained neither what Smith hoped to discover nor why such discovery was necessary. Such “vague” requests do not suffice under Rule 56(d). See Folliard, 764 F.3d at 29.

Smith also contends that the undisputed evidence shows that he drove away from, not toward, Officer Rogers. But he does not materially dispute what the video depicts — namely, that from right where Smith had parked facing the barricade, he pulled away from the curb and made a hasty U-turn to exit the driveway. In one sense, as Smith insists, he was driving “away” from Officer Rogers when he turned to exit. But the key point in support of the assault charge is that Smith quickly pulled forward and to the left, passing very close to the officer, before continuing his leftward 180 degree arc to exit the driveway. He did not adjust for the safety of the officer attending on foot by, for example, backing up first to leave a wider berth, or edging his car very slowly around until it was clear of the confined area. The video confirms as much, and Smith’s claim of a “dispute” over whether he drove “toward” or “away” from the officer is about nomenclature, not evidence. There is no question that his car swiftly approached dangerously close to Officer Rogers.

Smith similarly argues that the district court erred in granting summary judgment because the video does not conclusively establish probable cause to arrest and charge him with assault. He emphasizes that the video does not show him striking Officer Rogers with his car. He disputes the speed of the car and its proximity to Officer Rogers and he denies that he intentionally drove his car toward the officer. These disputes, he argues, should have precluded summary judgment.

Smith again misunderstands both the elements of assault and effect of the video. As we have already mentioned, physical contact is not an element of the offense of assault. Smith’s assertion about his intent is beside the point. What matters is not the “secret intent of the assaulting party,” but instead how the “conduct and the attending circumstances” afreet the assaulted party. Sousa v. United States, 400 A.2d 1036, 1044 (D.C. 1979) (internal quotation marks eliminated). Did Smith have an “apparent present ability to injure” Rogers? Ruffin, 642 A.2d at 1295. For probable cause, the officers needed only a reasonable belief that he did. Brown v. United States, 590 A.2d 1008, 1012 (D.C. 1991); Nichols v. Woodward & Lothrop, Inc., 322 A.2d 283, 285 (D.C. 1974).

That the officers had such a reasonable belief is plain. We do not suggest that videos are always conclusive, because even a video can give a distorted view of a disputed scene. Nevertheless, in this case, the video indisputably shows Smith accelerating his car toward Rogers and nearly hitting him. Probable cause did not depend on how many miles per hour the car was traveling or whether the car actually touched the officer’s leg. Smith may claim that he drove away from rather than toward Officer Rogers, but as we have said, this claim merely recharacterizes the events depicted in the video. The district court properly'relied on the video, and we do as well. See Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). With no material facts in dispute, probable cause became a question of law. See Amobi, 755 F.3d at 990; Enders v. District of Columbia, 4 A.3d 457, 469 (D.C. 2010). The district court’s finding of probable cause, a finding with which we agree, foreclosed at least Smith’s claims of false arrest, malicious prosecution and a violation of the Fourth Amendment’s proscription against seizure of the person without probable cause. Smith, 121 F.Supp.3d at 119-24; Pitt v. District of Columbia, 491 F.3d 494, 502 (D.C. Cir. 2007).

Smith devotes much of his attention— and attempts to escape the force of the video — by focusing on a supposed inconsistency in Officer Rogers’ accounts of what happened. He points out that Officer Rogers stated on the police radio that Smith “intentionally almost struck” him, but later reported that Smith’s car “brush[ed] the back” of his leg. Officer Rogers also sought medical care and claimed temporary disability. Smith contends that because the video shows that his car did not strike Officer Rogers, the officer’s claims to the contrary are evidence of bad faith. That Officer Anyaso knew of these discrepancies and still made the arrest supposedly shows his own bad faith as well.

Yet Smith fails to connect any of this to the relevant legal doctrine. Citing Edmond v. U.S. Postal Service General Counsel, 949 F.2d 415, 419 (D.C. Cir. 1991), he tells us that his Bivens claims rely on something called “perjurer’s liability.” Edmond coined this phrase in a false arrest case, using it as a shorthand for an alleged Fourth Amendment violation by an official “who causes an indictment and consequent arrest by perjuring himself or arranging for the submission of perjured testimony before the grand jury.” Id. No such circumstances are present, in. this case. Neither Officer Rogers nor Officer Anyaso testified before a grand jury and the video and the audio recording belie any claim that they did not have probable cause to arrest Smith. In addition, after a later phase of Edmond, which wound, up in the Fourth Circuit for reasons unnecessary to describe,, the court held that government officials have absolute immunity from civil liability for their grand jury testimony. Lyles v. Sparks, 79 F.3d 372, 378-79 (4th Cir. 1996). The Supreme Court has now agreed. Rehberg v. Paulk, 566 U.S. 356, 132 S.Ct. 1497, 1506, 182 L.Ed.2d 593 (2012). And so , we analyze Smith’s Bivens action as one for unconstitutional false arrest and malicious prosecution. Like their common law counterparts, both of these claims require the absence of probable cause. See Amobi, 755 F.3d at 989, 993.

As to Smith’s contentions regarding probable cause, he neglects the critical point that the “assessment of probable cause is an objective one. An arrest is supported by probable cause if, ‘at the moment the arrest was made, ... the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent .man in believing’ that the suspect has committed or is committing a crime.” Wesby v. District of Columbia, 765 F.3d 13, 19 (D.C. Cir. 2014) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)) (alteration in original). Even if Officer Rogers’ post-arrest statement that Smith’s car “brushed” his leg meant something different than his pre-árrest radio transmission that Smith “almost struck” him, this would not affect the existence of probable cause to arrest and prosecute Smith based on the video. See Wardlaw v. Pickett, 1 F.3d 1297, 1304-05 (D.C. Cir. 1993); District of Columbia v. Murphy, 635 A.2d 929, 932 (D.C. 1993). The prosecutor’s awareness of Officer Rogers’ differing accounts also forecloses any argument that the officer’s statement about being “brushed,” as opposed to the video and audio recordings, led to the assault charge against Smith. The district court therefore properly granted summary judgment on the false arrest, malicious prosecution and Bivens claims.

We also agree with the district court’s dismissal of Smith’s claim that he was subjected to intentional infliction of emotional distress. The elements of this tort are: “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” Minch v. District of Columbia, 952 A.2d 929, 940 (D.C. 2008) (quoting District of Columbia v. Thompson, 570 A.2d 277, 289-90 (D.C. 1990)). Smith’s distress from the arrest would not suffice because the officers had probable cause to arrest him. Kotsch, 924 A.2d at 1046. Nor is distress from the prosecution sufficient: the prosecutor charged Smith with assault on a police officer because of the evidence that Smith had committed that offense. Smith cites District of Columbia v. Tulin, 994 A.2d 788 (D.C. 2010), arguing that the actions of Officers Rogers and Anyaso are highly similar to the offending conduct of the officer in that case. We disagree. In Tulin, an off-duty officer rear-ended the plaintiff, falsely reported on her radio that she was in distress, and pressured her subordinate to make an arrest. Id. at 800-01. Unlike in Tulin, however, there is undisputed evidence here establishing that the police had probable cause to arrest Smith. And, we agree with the district court that nothing here “rises to the level of ‘outrageousness’ as to be beyond all possible levels of decency and utterly incomprehensible in a civilized society.” Smith, 121 F.Supp.3d at 125 (quoting Lyles v. Micenko, 404 F.Supp.2d 182, 187 (D.D.C. 2005)); see, e.g., Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 163 (D.C. 2013).

Affirmed.

EDWARDS, Senior Circuit Judge,

concurring:

It is clear that the existence of probable cause defeats Smith’s claims of false arrest/imprisonment and malicious prosecution. In my view, the question regarding Smith’s claim of intentional infliction of emotional distress is more difficult, although I ultimately agree that we must dismiss this claim as well.

Nevertheless, there are aspects of this case that distress me, so I am stirred to write separately. The law does not always produce just results and this case may be a good example. As I see it, the incident between Smith and Officer Rogers was much ado about nothing — a needlessly absurd faceoff between a seemingly hotheaded citizen and a seemingly impetuous police officer. The citizen invariably loses in such exchanges, as Smith found out. Smith’s imprudent action gave Officer Rogers just enough to assert probable cause, and the officer acted on it.

I do not doubt that Officer Rogers was within his rights to pursue someone like Smith, who appeared to have violated the law. What is distressing here is that, although he had probable cause to arrest Smith, Officer Rogers did much more. The officer embellished and fabricated his official reports and post-arrest statements, claiming that Smith’s car brushed or grazed his leg, See JA 84, 130-32. These claims were untrue; And, of course,' as the officer had reason to know, his fabrications were included in the papers filed with the prosecutor who ultimately charged Smith. See JA 72-76. In these circumstances, it would not have been implausible for Smith to claim that, separate and apart from the events giving rise to his arrest, Officer Rogers’ dishonesty in recounting those events caused him great emotional distress.

A prosecutor is not obliged to charge a person merely because he has been arrested pursuant to probable cause. The prosecutor has discretion to weigh the evidence before her and decide whether to pursue the matter. Many factors may affect a prosecutor’s decision to press criminal charges. Therefore, in a case such as this, Smith might have reasonably claimed that Rogers’ fabrications unduly influenced the prosecutor, resulting in him being charged, and then causing him to be engaged with the criminal justice system for months before the prosecution was finally dismissed as meritless. The net result of Smith’s prolonged encounter with the criminal justice system — arguably attributable in no small part to Rogers’ fabrications — was that he lost his job and his security clear-anee. Surely some might view this as enough to produce great emotional distress. In other words, given the impact that the criminal prosecution had on his life, Smith might have raised an emotional distress claim even if there was probable cause for arrest.

There are three problems with my analysis. First, the theory that I have propounded was not raised by Smith. So the issue was never joined, either at the trial court or on appeal. Second, because the issue was not properly raised, I have no grounds upon which to conclude that the prosecutor was duped by Rogers’ fabrications. In other words, there is nothing in the record to indicate that the prosecutor relied on anything other than the original reason given by Rogers to support probable cause for Smith’s arrest. Third, the standard for intentional infliction of emotional distress is very high and it, is far from clear that Smith could meet this standard even on the most generous view of my theory of emotional distress. I am therefore obliged to, concur in the judgment of the court.


author: EDWARDS, Senior Circuit Judge: TATEL, Circuit Judge,

text:
    Ashima REED, et al., Appellants v. DISTRICT OF COLUMBIA, Appellee
    No. 15-7119
    Consolidated with 16-7009
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 13,’ 2016
    Decided December 9, 2016

      Douglas Tyrka, Washington, DC, argued the cause and filed the briefs for appellants.
    Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With .him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
    Before: TATEL, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
   Concurring opinion filed by Circuit Judge TATEL.

EDWARDS, Senior Circuit Judge:

The purpose of the Individuals with Disabilities Education Act (“IDEA”) is “to ensure that all children with disabilities have available to them a freé appropriate public education.” 20 U.S.C. § 1400(d)(1)(A). The statute contains a fee-shifting provision that permits parents and legal guardians to recover reasonable attorneys’ fees and costs if they prevail in certain, statutorily prescribed proceedings. See 20 U.S.C. § 1415(i)(3)(B). In calculating a fee award, courts take into account both the “number of hours reasonably expended in litigation” and the “reasonable hourly rate” for the services provided, which is determined in part by reference to the prevailing market-rate for attorneys’ services. Eley v. District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015) (quoting Save Our Cumberland Mountains, Inc. v. Hodel (SOCM), 857 F.2d 1516, 1517 (D.C. Cir. 1988) (en banc)).

Appellants, parents and legal guardians of children with disabilities who prevailed in IDEA proceedings, filed suit in the District Court seeking reasonable attorneys’ fees and costs related to these proceedings. Appellants also sought an award of “fees-on-fees” for work done in connection with their pursuit of fees for the IDEA proceedings. The District Court granted both requests, but did not award Appellants the full amounts requested.

Appellants contend that the District Court erred in excluding certain hours spent at “settlement conferences” from their fee award. Appellants also assert that the District Court abused its discretion in refusing to find that the “prevailing market rate” for attorneys’ fees in IDEA cases is aligned with the Lajfey Matrix, a fee matrix originally compiled to reflect the prevailing market rate for “complex federal litigation.” See Laffey v. Nw. Airlines, Inc. (Laffey I), 572 F.Supp., 354, 372 (D.D.C. 1983), aff'd in part, rev’d in part on other grounds, Laffey v. Nw. Airlines, Inc. (Laffey II), 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, SOCM, 857 F.2d 1516.

We agree with Appellants that the District Court should not have excluded certain hours billed as “settlement conferences” from its initial fee award calculation. However, we hold that the District Court did not abuse its discretion in finding that Appellants had failed to demonstrate that their IDEA matters fall within the category of “complex federal litigation” to which the Laffey Matrix applies. Therefore, the District Court was not obliged to follow the Laffey Matrix in calculating attorneys’ fees due Appellants. Appellants also forfeited two claims raised for the first time on appeal: (1) that the affidavits they submitted in this case independently demonstrate a prevailing IDEA market rate that aligns with the Laffey Matrix; and (2) that the rates awarded by the District Court are insufficient to attract competent counsel and, thus, are too low. These claims were not clearly raised with the ' District Court, so we decline to address them ón appeal. Finally, Appellants did not submit any evidence demonstrating that they should receive a different market rate for fees-ón-fees and, therefore, the District Court did not abuse its discretion in applying the same rate when calculating both the initial fee award and subsequent fees-on-fees award.

I. BACKGROUND

A. The Individuals with Disabilities Education Act

As noted above, the purpose of IDEA is “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.” 20 U.S.C. § 1400(d)(1)(A). IDEA provides a variety of mechanisms for students to receive the assistance they require. This assistance includes an “impartial due process hearing. . .conducted by the State educational agency or by the local educational agency” after a party has filed a complaint, 20 U.S.C. § 1415(f)(1)(A), pertaining to “any matter relating to the identification, evaluation, or educational-placement of [a] child, or the provision of a free appropriate public education to such child,” § 1415(b)(6)(A).. Parents or legal guardians who prevail in such proceedings are permitted to bring suit, in district court to request the award of “reasonable attorneys’ fees” and related costs. 20 U.S.C. § 1415(i)(3)(B)(i).

Though fee applicants “bear[ ] the burden of establishing entitlement to an award,” IDEA provides relatively little guidance to either the courts or litigants regarding how, precisely, these “reasonable attorneys’ fees” are to be calculated. Eley, 793 F.3d at 100 (quoting Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995)). The statute notes only that fee awards “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. § 1415(i)(3)(C), and permits courts to reduce awards of attorneys’ fees if they “unreasonably exceed[] the hourly rate prevailing in the community for 'similar services by attorneys of reasonably comparable skill, reputation, and experience.” 20 U.S.C. § 1415(i)(3)(F)(ii). Nonetheless, in interpreting the dictates of IDEA’S fee-shifting provision, this court has typically relied on a two-part framework that takes into account: (1) the “number of hours reasonably expended in litigation”; and (2) the “reasonable hourly rate” for the services provided. See Eley, 793 F.3d at 100 (quoting SOCM, 857 F.2d at 1517). Both parts of this test are at issue in this -case.

To establish an entitlement to a particular fee award, fee applicants must document the hours spent litigating in IDEA proceedings in which they prevailed. See id. (quoting Covington, 57 F.3d at 1107). IDEA, however, imposes a number of limitations on the hours for which prevailing parties can seek recompense. See 20 U.S.C. § 1415(i)(3)(D)(i) — (iii). Of particular salience in this case, fee applicants are traditionally barred from recovering fees associated with hours spent in “resolution sessions.” 20 U.S.C. § 1415(f)(1)(B); § 1415(i)(3)(D)(ii)-(iii); see D.D. ex rel. Davis v. District of Columbia, 470 F.Supp.2d 1, 2 (D.D.C. 2007).

In addition to providing an accounting of the hours spent on a particular IDEA claim, fee applicants must establish the reasonable hourly rate at which these hours should be reimbursed in order to prevail on a request -for a fee award. Eley, 793 F.3d at 100. “Whether an hourly rate is reasonable turns on three sub-elements: (1) ‘the attorney[’s]- billing practices,’ (2) ‘the attorney[’s] skill, experience, and reputation’ and (3) ‘the prevailing market rates in the relevant community.’” Id. (quoting Covington, 57 F.3d at 1107). We have noted that determining the third of these sub-elements, the prevailing market rate, is “inherently difficult.” Id. (quoting Blum v. Stenson, 465 U.S, 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Fee applicants in IDEA cases have relied on two separate, but inter-related, approaches to providing evidence of prevailing market rate. We explain below.

First, litigants have claimed that IDEA litigation should be accorded the same rates laid out in the aforecited “Laffey Matrix.” Two variants of the Laffey Matrix, intended to update the original matrix to reflect current market rates, are potentially implicated by such requests: (1) the USAO Laffey Matrix, which is maintained by the United States Attorney’s Office for the District of Columbia and adjusts -the rates set forth in the original Laffey Matrix to “account for inflation by using the Consumer Price Index for All. Urban Consumers of the United States Bureau of Labor Statistics”; and (2) the Legal Services Index (LSI) Laffey Matrix, which “uses the Legal Services Index of the Bureau of Labor Statistics to adjust for inflation.” See Eley, 793 F.3d at 101. Because the Laffey Matrix and subsequent revisions to this matrix apply only to “complex federal litigation,” fee applicants have focused their efforts on attempting to demonstrate that IDEA cases fall within the bounds of this type of litigation. See id. at 105; Laffey, 572 F.Supp. at 371-72.

Second, fee applicants have tried to' establish the prevailing market rate by providing evidence of the fees charged, and received, by IDEA litigators. While practitioners appear to frequently state that their rates are identical to some version of the Laffey Matrix, this means of establishing the' “prevailing market rate” is not conceptually linked to the Laffey Matrix. See Price v. District of Columbia, 792 F.3d 112, 117 (D.C. Cir. 2015) (Brown, J., concurring) (noting that absent a finding that representation in “IDEA administrative due process hearings” commands the same rates as complex federal litigation, “Laffey Matrix rates are irrelevant to the prevailing-rate determination”).

B. The Proceeding Below

Appellants in this case are the parents and legal guardians of six students who prevailed in separate due process hearings. On November 10, 2014, they filed suit in the District Court requesting the award of “reasonable fees and costs” associated with their IDEA claims. The District Court referred the case to a Magistrate Judge for full case management. Appellants then submitted , a Motion for Summary Judgment, attaching a summary of the hours expended litigating these cases and materials intended to demonstrate that the prevailing market rate for IDEA, eases was consistent with the rates set forth in the LSI Laffey Matrix. In response, the District of Columbia filed a Cross-Motion for Summary Judgment.

The Magistrate Judge issued a Report and Recommendation which found, in relevant part, that certain hours spent by Appellants’ counsel traveling to and participating in “settlement conference^]” should be excluded from Appellants’ fee award because such meetings are not recompensable under the IDEA. Judicial Appendix (“JA”) 369, 370, 371, 373, 374. The Magistrate Judge also rejected Appellants’ requests for the application of a prevailing market rate equal to “enhanced Laffey Matrix .or Laffey Matrix rates,” JA 379, and proposed that all but one Appellant be awarded “three-quarters of the [USAO] Laffey rates,” JA 384; see JA 376-84.

Appellants objected to the Magistrate’s Report on two grounds. First, Appellants argued that IDEA cases constitute “complex litigation.” Therefore, according to Appellants, the Magistrate Judge erred in declining to apply the rates laid out in the Laffey Matrix in calculating the fees due in this case. In support of 'this claim, Appellants submitted six affidavits from lawyers averring that IDEA litigation in - which they had been involved was no less complex than other cases in which the courts have applied the Laffey Matrix in calculating attorneys’ fees. Second, Appellants argued that, in calculating the fees due, the Magistrate Judge erred in removing hours spent by counsel in “settlement conferences.”

On September 28, 2016, the District Court granted in part and denied in part both Appellants’ and Appellee’s Motions for Summary Judgment, awarding Appellants $89,158.60 in attorneys’ fees and costs. The District Court held that it would “adopt the Magistrate Judge’s recommendation to exclude hours billed for ‘settlement conferences’” from the fee award. Reed v. District of Columbia, 134 F.Supp.3d 122, 134 (D.D.C. 2015). The court noted that Appellants bore the burden of establishing that these conferences were not statutorily non-reimbursable “resolution sessions” and claimed that, because Appellants had failed to point to anything specific in the record to demonstrate that these meetings were not in fact resolution sessions, they had fallen short of this requirement. Id.

The District Court also rejected Appellants’ request that the “enhanced Laffey matrix” be used to determine the reasonable hourly rate for their counsel’s efforts during the underlying administrative proceedings. The court stated that while fee matrices have been recognized as a “ ‘useful starting point in calculating the prevailing market rate’ for attorneys’ services,” Appellants had not provided sufficient evidence to demonstrate that they should be awarded rates in line with this matrix. Id. at 127 (quoting Eley, 793 F.3d at 100); see also id. at 129-30. Specifically, the District Court held that Appellants had failed to demonstrate that IDEA matters constituted “complex federal litigation,” the category of cases to which the Laffey Matrix presumptively applies. After disposing of Appellants’ evidence in support of the use of full Laffey rates in this case, the District Court cited the “vast number of district court cases” in this circuit that had found that “75% of Laffey rates approximates the prevailing market rate for IDEA administrative proceedings” and applied this hourly rate to calculate Appellants’ fee award. Id. at 131; see 131-32.

Shortly after the District Court issued its original fee award, Appellants filed a request for fees-on-fees, fees associated with attempting to secure the attorneys’ fees and costs incurred in the underlying IDEA due process hearings. See JA 494. Appellants argued that the LSI Laffey Matrix reflected the prevailing market rate for this type of work. JA 499. In support of this claim, they provided affidavits stating that “only two law firms,” including Appellants’ lawyer’s firm, accepted cases in the “specialized field of IDEA fees litigation” and claiming that Appellants’ “attorneys customarily charge” and receive payment from clients in line with this rate. Id. The District Court, however, held that it would abide by its earlier determination that the appropriate prevailing market rate in this case was 75% of the USAO Laffey rate, declining to “enter the labyrinth” of determining the appropriate rate anew. Memorandum Opinion and Order at 2, JA 534. It then granted- Appellants’ motion in part, awarding them $19,048.30 of the requested $62,862.65. Id. at 1, JA 533.

II. ANALYSIS

A. Standard of Review

This court reviews fee awards for abuse of discretion and will not upset a district court’s hourly rate determinations “absent clear misapplication of legal principles, arbitrary fact finding, or unprincipled disregard for the record evidence.” Eley, 793 F.3d at 103 (quoting Kattan ex rel. Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993)). “This limited standard of review is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Id. at 104 (quoting Covington, 57 F.3d at 1110). Nonetheless, this court will examine de novo the question of whether the “district court applied the correct legal standard.” Id. (quoting Conservation Force v. Salazar, 699 F.3d 538, 542 (D.C. Cir. 2012)).

B. Resolution Sessions

Appellants are correct that the District Court abused its discretion in excluding certain hours classified as “settlement conferences” in their billing records from their fee award. IDEA makes clear that hours spent in “resolution sessions” are nonreimbursable and, thus, should not be included in a prevailing party’s 'fee award. See 20 U.S.C. § 1415(f)(1)(B); § 1415(i)(3)(D)(ii)-(iii); D.D. ex rel. Davis, 470 F.Supp.2d at 2. However, the statute delineates a number of requirements for a meeting to constitute a “resolution session”-: it must be attended by the parents who have submitted a complaint, “the relevant member or members of the [Individualized Education Program (“IEP”) ] Team who have specific knowledge of the facts identified in the complaint,” and a “representative of-the [local educational] agency who has decisionmaking authority on behalf of such agency.” 20 U.S.C. § 1415(f)(l)(B)(i).

Appellants claim that the “settlement conferences” at issue here were, as the District Court reported, “sham resolution sessions,” which fell short of the standards prescribed by IDEA. Reed, 134 F.Supp.3d at 134; Br. for Appellants at 20-22. This is uneontested. Therefore, Appellants contend that the hours spent in these settlement conferences are reimbursable pursuant to IDEA’S fee-shifting provision and should not have been excluded from their fee award. Br. for Appellants at 20-22. The District Court dismissed this argument, noting that Appellants bore the burden of proving “their entitlement to compensation” and stating that Appellants’ evidence, which the court characterized as providing only general statements that the District of Columbia often “invites parties to meetings it calls resolution sessions ‘but fails to staff and conduct such meetings in accordance with the IDEA,”’ was insufficient. Reed, 134 F.Supp.3d at 134 (quoting Verified Statement of Nicholas Ostrem, Counsel for Plaintiffs, JA 410).

Yet, in rendering this decision, the District Court appears to have overlooked, or failed to appropriately weigh, evidence submitted by Appellants that stated not only that the District, of Columbia had, in the past, failed to satisfy all of IDEA’S requirements when inviting parties to “resolution sessions,” but that the specific settlement conferences excluded by the District Court in this case were themselves deficient. See Verified Statement of Nicholas Ostrem, Counsel for Plaintiffs, JA 411. Counsel for Appellants in the underlying administrative hearings provided an affidavit noting that students’ IEP teams were not present at these meetings and representatives of the local educational agency did not indicate they possessed “decision-making authority” with respect to the students’ complaints and appeared to lack “specific knowledge of the facts” put forth in these complaints. Id.

The District Court thus .abused its discretion in dismissing out of hand Appellants’ claims that the disputed hours were not resolution sessions. Cf. Radtke v. Caschetta, 822 F.3d 571, 575 (D.C. Cir. 2016) (holding that a district court abused its discretion in reducing a fee award due .to appellants’ alleged, inability to. provide a meaningful demand, for actual damages suffered when appellants had in fact provided damages estimates to the court). Indeed, the kind of specific, undisputed record evidence that a meeting fell short, of the statutory requirements for a “resolution session” presented, by Appellants in this case has, in -the past, been deemed sufficient to establish that a plaintiff should not have these hours removed from their fee award. See Eley v. District of Columbia, 999 F.Supp.2d 137, 165-66 (D.D.C. 2013), vacated and remanded on other grounds, 793 F.3d 97 (D.C. Cir. 2015). We therefore reverse the decision of the District Court and remand the case so that the court can calculate the amount due in fees for -the settlement conferences.

C. Appropriate Rate

Over the course of this litigation, Appellants have requested a prevailing market rate for the attorneys’ fees associated with their success in the underlying IDEA administrative hearings that is pegged to the LSI Laffey Matrix. In connection with this broad contention, Appellants have raised two arguments on appeal that were not clearly presented to or fully considered by the District Court: (1) The prevailing market rate for IDEA litigation aligns with rates contained in the LSI Laffey Matrix as evidenced by affidavits stating that IDEA attorneys charge their clients rates matching this matrix. Br. for Appellants at 10. (2) The rates awarded by the District Court are insufficient to attract competent counsel to take on these kinds of cases and, as such, are impermissibly low. Br. for Appellants at 17-20. There are two problems with these claims. First, they were not fully explored with the District Court. Second, even after a generous read of the record, we can find no substantial or compelling evidence to support the points now pressed by Appellants. In these circumstances, it would imprudent for us to opine on these matters in the face of such a spare record. We do not mean to say that the positions lack merit. Rather, we simply mean to say that the issues should be left for another day when the claims can be appropriately fleshed out. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (noting “the general rule .. that a federal appellate court does not consider an issue not passed upon below”).

Appellants’ principal argument on appeal, which was raised with the District Court, is that IDEA cases constitute “complex federal litigation” for purposes of the Laffey Matrix, and, as such, this fee matrix, or an updated version thereof, provides the relevant “prevailing market rate” that a court should look to when calculating Appellants’ fee award. Br. for Appellants at 11-16. The District Court rejected this claim, and we affirm. We conclude that the District Court did not abuse its discretion in finding that Appellants failed to meet their burden of demonstrating that IDEA cases are akin to the type of cases traditionally understood to fall within the category of “complex federal litigation” to which the Laffey Matrix presumptively applies.

In Eley v. District of Columbia, this court bracketed the question of “whether IDEA litigation is in fact sufficiently ‘complex’ to use either version of the Laffey Matrix.” 793 F.3d at 105. But cf. Eley, 793 F.3d at 105 (Kavanaugh, J., concurring) (“[I]n in my view, the United States Attorney’s Office Laffey matrix is appropriate for IDEA cases.”).

Following our decision in Eley, Appellants in this case proffered six affidavits from attorneys who are familiar with, or have litigated, IDEA cases. The affidavits claim that IDEA matters are akin to “complex federal litigation.” JA 413-45. These affidavits include statements noting that practitioners have found “legal work under the IDEA to be far more complex than Title VII work and civil rights work [previously recognized examples of ‘complex federal litigation’].” JA 413. They also explain that IDEA cases are complex because they involve the application of “specialized nonlegal knowledge regarding, special education,” JA 413, 424, 430, 434, 438, 442, and “limited discovery and pretrial exchange,” which makes preparing for and litigating “IDEA cases more complicated, especially because hearing officers typically allow respondents to spontaneously adjust defenses,” JA 414, 424, 431, 434, 438, 442.

In our view, the District Court did not abuse its discretion in holding that, while Appellants may have demonstrated that IDEA proceedings are complicated “in some sense,” they fell short of establishing that “such matters are complex federal litigation,” Reed, 134 F.Supp.3d at 129 (emphasis omitted), as this court has held they must. Nee Eley, 793 F.3d at 105 (finding that a district court abused its discretion in relying on the LSI Laffey Matrix to determine' the prevailing market rate in IDEA litigation “absent ... any record evidence, other than the fee applicant’s declaration, demonstrating that IDEA litigation is as complex as the type of litigation that supports the ‘enhanced’ hourly rates in the LSI Laffey Matrix”). Mere conclusory statements, that IDEA litigation is “as complex” as other types of cases deemed by this court to be “complex federal litigation,” absent an explanation of why this is so, cannot suffice to meet Appellants’ burden.

We appreciate that attorneys who litigate IDEA cases may have “specialized non-legal knowledge.” But this is true in a number of specialized fields. We also understand that IDEA litigants may not have discovery and pre-trial exchanges of the sort found 'in other federal litigation, But the'absence of discovery may suggest that IDEA eases are not as complex as cases in which discovery is extensive. In other words; what Appellants have offered is insufficient to demonstrate that IDEA cases involve complex federal litigation.

To be clear, we do not mean to rule out the possibility that future fee applicants may be able to demonstrate that IDEA cases are “complex federal litigation” to which the Laffey Matrix presumptively applies, It will not be easy, however, as Laf-fey is not very helpful in explicating “complex federal litigation,”

In Laffey, plaintiffs sought fees associated with litigating a case involving violations of Title VII and the Equal Pay Act. In order to assemble the information regarding attorneys’ rates that now comprises the Laffey Matrix, the Laffey litigants assembled a “barrage of data, including twenty-five attorney affidavits secured specifically for [the] litigation, information gleaned from affidavits filed in other cases, and fee data reflected in previous judicial decisions.” Laffey v. Nw. Airlines, Inc. (Laffey I), 572 F.Supp. 354, 371-72 (D.D.C. 1983), aff'd in part, rev’d in part on other grounds, Laffey v. Nw. Airlines, Inc. (Laffey II), 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, SOCM, 857 F.2d 1516. The Laffey plaintiffs offered this information specifically to demonstrate the prevailing market rates for what was called “complex federal litigation.” Id. at 372. Very little additional explanation is provided by the District Court in Laffey regarding the attributes of this type of litigation. The court simply noted that “the relevant legal market in this action is complex employment discrimination litigation and ... this market is subject to the same hourly rates that prevail in other complex federal litigation.” Id. at 374.

We have applied the Laffey Matrix to requests for attorneys’ fees brought pursuant to 42 U.S.C. § 1988. See, e.g., Covington, 57 F.3d at 1109. However, the decision in Covington is buttressed by the fact that the Senate Report accompanying the enactment of this statute describes section 1988 cases as involving “complex Federal litigation”:

It is intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974); Davis v. County of Los Angeles, 8 E.P.D. ¶ [P] 9444 (C.D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C. 1975).

Blum, 465 U.S. at 893-94, 104 S.Ct. 1541 (quoting S. Rep. No. 94-1011, at 6 (1976)).

Unfortunately, the case law provides little guidance to litigants attempting to demonstrate that IDEA cases constitute “complex federal litigation.” The main point here is that, regardless of whether future fee applicants can divine a unifying thread that will bring IDEA cases under the umbrella of “complex fedei’al litigation,” it is clear that Appellants failed to do so in this case.

D. Fees-on-Fees

IDEA litigants are entitled to receive compensation for the hours expended pursuing an initial fee award in District Court. See Kaseman v. District of Columbia, 444 F.3d 637, 642-43 (D.C. Cir. 2006). Appellants were awarded fees for this work. They complain that the rate used to calculate the fees was too low and that the District Court abused its discretion by “arbitrarily setting the rate without any examination of the record.” Br. for Appellants at 23. Appellants, however, failed to provide any evidence suggesting that the “prevailing market rate” for fees-on-fees is distinct from the rate used to calculate attorneys’ fees for the administrative proceedings.

This court has yet to determine whether all aspects of an IDEA litigation should be treated as a unified whole, subject to the same prevailing market rate. But cf. Jester v. Gov’t of District of Colum bia, 474 F.3d 820, 821-22 (D.C. Cir. 2007) (noting that an IDEA request for fee awards and fees-on-fees litigation should be considered part of the same action for the purposes of the IDEA’S fee cap); Kaseman, 444 F.3d at 640-43 (same). We need not do so today, as the District Court did not abuse its discretion in applying the same rate for fees for the administrative proceedings and fees-on-fees in light of Appellants’ failure to submit evidence of any meaningful difference between these two types of litigation.

III. CONCLUSION

For the reasons set forth above, we affirm the judgment of the District Court with respect to its determination of the prevailing market rate for both Appellants’ initial request .for fees and their fees-on-fees motion. We reverse and remand the District Court’s judgment excluding certain hours spent in “settlement conferences” from Appellants’ fee award.

TATEL, Circuit Judge,

concurring:

Attorneys seeking compensation under the Individuals with Disabilities Education Act are entitled to reasonable fees, 20 U.S.C. § 1415(i)(3)(B)(i), and bear the burden of demonstrating that the rates they seek are consistent with those “prevailing in the .community in which the action or proceeding arose for the kind and quality of services furnished,”, id. § 1415(i)(3)(C). A reasonable fee is “one that is adequate to attract competent counsel, but that does not produce windfalls to attorneys.” Blum v. Stenson, 466 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (citation, alterations, and internal quotation marks omitted).

In complex cases — such as antitrust, school desegregation, Title VII, and Fourth Amendment suits, see id. at 893-94, 104 S.Ct. 1541 — we and our district court colleagues have long accepted Laffey matrices as evidence of prevailing market rates. See Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995) (“In order to demonstrate [the prevailing market rate], plaintiffs may point to such evidence as an updated version of the Laf-fey matrix or the U.S. Attorney’s Office [Laffey] matrix — ”). Since the Laffey matrix was first used in a Title VII case in 1983, see Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C. 1983), courts in this circuit have awarded Laffey rates in a wide variety of complex litigation, including suits arising under the First Amendment, see Covington, 57 F.3d at 1103, the Americans with Disabilities Act, see id. the Rehabilitation Act, see Berke v. Federal Bureau of Prisons, 942 F.Supp.2d 71, 77 (D.D.C. 2013), the Freedom of Information Act, see ACLU v. Department of Homeland Security, 810 F.Supp.2d 267, 277 (D.D.C. 2011), and the Second Amendment, see Heller v. District of Columbia, 832 F.Supp.2d 32, 48 (D.D.C. 2011).

Last year, in Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015), this court decided to treat IDEA cases differently. Instead of determining itself whether IDEA litigation warrants Laffey rates, the court held not only that fee applicants must present evidence “demonstrating that IDEA litigation is as complex as the type[s] of litigation” that have garnered Laffey rates, Eley, 793 F.3d at 105, but also that it would review a district court’s resolution of that issue for abuse of discretion, id. at 103-04.

It is true that fee applicants bear the burden of establishing the reasonableness of their rates and that district court fee awards are reviewed for abuse of discretion. Copeland v. Marshall, 641 F.2d 880, 901 (D.C. Cir. 1980) (“[A]n attorney’s fee award by the District Court will be upset on appeal only if it represents an abuse of discretion”)- But whether a particular rate in a particular case is reasonable is a fundamentally different question from whether IDEA litigation, as a type of legal work, is- complex enough to merit Laffey rates. The former involves a fact-intensive, case-specific analysis of the prevailing lawyer's qualifications and experience. By contrast, the latter hinges not on the circumstances of any particular case, but rather on an assessment of the nature of IDEA litigation generally, as compared to, say, Title VII, Rehabilitation Act, or ADA litigation, each of which has commanded Laffey rates. Although this comparison requires consideration of how plaintiffs prove their cases, it is in the end a legal question that cannot depend — as Eley requires — on whether one lawyer has met her burden of proof or, for that matter, on the inevitably varying views of district courts based on the records before them. Compare Reed v. District of Columbia, 134 F.Supp.3d 122, 129-30 (D.D.C. 2015) (holding that plaintiffs had not met their burden under Eley), with Merrick v. District of Columbia, 134 F.Supp.3d 328, 338-40 (D.D.C. 2015) (holding that plaintiffs had met their burden). Either IDEA litigation is as complex as Title VII, Rehabilitation Act, and ADA litigation, or it is not — a question this court is best equipped to resolve. ,

Take, for example, Title VII litigation. During the past ten years, we have considered more than 200 Title VII cases and almost 30 IDEA claims. In the process, we have wrestled with the two statutes and their regulations, reviewed an enormous variety of evidentiary records, read hundreds of briefs, and observed the performance of many lawyers — some more skilled than others. Based on my own experience hearing dozens of these cases and authoring opinions in many, I think it quite obvious that IDEA litigation is as complex as Title VII litigation,

Like Title VII litigation, IDEA litigation arises under a complicated statutory framework, supplemented by detailed regulations. See, e.g., K.A. ex rel. F.A. v. Fulton County School District, 741 F.3d 1195, 1201 (11th Cir. 2013) (describing the IDEA as “a .detailed, complex statute” with a “complex procedural apparatus” for ensuring a free, and appropriate education). One need look no further than the decisions of the Supreme Court to appreciate the thorny questions of statutory interpretation that lie at the heart of IDEA litigation. See, e.g., Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516, 519, 522, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (interpreting the IDEA’S “interlocking statutory provisions” to determine whether the statute “accords to parents rights of their own that can be vindicated in court proceedings”); Honig v. Doe, 484 U.S. 305, 308, 323, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (holding that the “stay-put” provision in the IDEA’S predecessor, the Education of the Handicapped Act, prevented schools from excluding students with disabilities from school for “disruptive conduct growing out of their disabilities”). We too have addressed many such issues. See, e.g., Leggett v. District of Columbia, 793 F.3d 59, 62 (D.C. Cir. 2015) (examining when a parent who “send[s] her child to a private school” may be reimbursed under the IDEA); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005) (interpréting the IDEA’S remedial provision).

IDEA and Title VII litigation share many other complexities. Both involve sophisticated non-legal subjects: in Title VII litigation, statistics, employment testing, and workplace compensation; in IDEA litigation, child psychology, speech and language pathology, occupational therapy, physical therapy, and special education curricula. Both types of litigation rely heavily on experts in a variety of fields: in Title VII, statisticians and psychologists; in IDEA, childhood development specialists, psychiatrists, pathologists, and experts in educational options for children with disabilities. Finally, both-types of litigation often involve complex organizations: large companies in Title VII cases; large public school systems (here DCPS) - in IDEA cases.

To be sure, many IDEA cases, like the ones at issue here, are relatively small. But that is also true of Title VII cases. See, e.g., Robbins v. District of Columbia, 650 Fed.Appx. 37 (D.C. Cir. 2016); Kelly v. Mills, No. 10-5049, 2010 WL 5110238 (D.C. Cir. Dec. 14, 2010). More important, even small IDEA claims require lawyers with non-legal knowledge and specialized legal skills, as the declarations in these cases demonstrate. See, e.g., Reed v. District of Columbia, No. 14-1887, ECF No. 18-2 at 1 (D.D.C. Aug. 13, 2015) (“Every [IDEA] case requires' knowledge of education policies, procedures, techniques, best practices, records, and administration .... A competent IDEA litigator must know enough [about specialized] disciplines to understand and critique evaluations, cross-examine experts, and work with one’s own experts”). IDEA cases,;moreover, can be as large, complex, and long-lasting as the most complicated Title VII cases. Compare Blackman v. District of Columbia, 633 F.3d 1088, 1089 (D.C. Cir. 2011) (describing the “latest ... chapter in the saga stretching back' at least forty years of families with disabled childrén seeking free appropriate public education from the District of Columbia with frequent repair to administrative and judicial remedy), urith Shea v. Kerry, 796 F.3d 42, 50-56 (D.C. Cir. 2015) (tracing the “long history” of a fourteen-year-old Title VII claim against the State Department),

For these reasons, were this panel not bound by Eley, I would hold, as a matter of law, that IDEA litigation is sufficiently complex to warrant Laffey rates. See Eley, 793 F.3d at 105 (Kavanaugh, J., concurring) (“[I]n my view, the United States Attorney’s Office Laffey matrix is appropriate for IDEA cases.”). Deeming IDEA litigation eligible for Laffey rates would comport with the Supreme Court’s instruction that a reasonable fee is one “adequate to attract competent counsel,” Blum, 465 U.S. at 893, 104 S.Ct. 1541 (citation omitted), thereby advancing Congress’s goal that “all children with disabilities” receive a free appropriate public education “designed to meet their unique needs.” Forest Grove School District v. T.A., 557 U.S. 230, 239, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (citation omitted).