BARBARA R. v. Tirozzi, Civil H-83-991 (PCD).

• Decision Date: 22 July 1987
• Docket Number: No. Civil H-83-991 (PCD).,Civil H-83-991 (PCD).
• Parties: BARBARA R., et al. v. Gerald TIROZZI, et al.
• Court: U.S. District Court — District of Connecticut

665 F. Supp. 141

BARBARA R., et al. v. Gerald TIROZZI, et al.

No. Civil H-83-991 (PCD).

United States District Court, D. Connecticut.

July 22, 1987.

Douglas Crockett, Connecticut Legal Services, Willimantic, Conn., for plaintiffs.

Joseph I. Lieberman, State Atty. Gen., Robert W. Garvey, John H. Doorman, John R. Whelan, Asst. Attys. Gen., Hartford, Conn., for defendants.

RULING ON PLAINTIFFS' MOTION FOR ATTORNEY FEES

DORSEY, District Judge.

Plaintiffs have moved for attorney fees in their suit against state officials to vindicate the rights of mentally handicapped children to an appropriate education. The motion is granted.

Background

Plaintiffs are children and parents who were unable to obtain decisions from state educational agencies concerning their claims that the defendant Department of Children and Youth Services failed to provide them with appropriate special education while the children were residents at Long Lane juvenile correctional center. Plaintiffs alleged that the Connecticut State Board of Education was violating the fourteenth amendment due process rights of mentally handicapped children. Defendants allegedly failed to adhere to the "procedural safeguards" provisions of the Education for All Handicapped Children Act ("EHA"), 20 U.S.C. §§ 1401-1461,¹ and implementing regulations.² Specifically, plaintiffs alleged that defendants (1) regularly failed to hold hearings and render decisions within forty-five days of receiving a request for same; (2) repeatedly violated the requirement that hearing officers be independent; and (3) illegally limited the issues which could be raised at these hearings. From data supplied by defendants for 343 hearings over a six year period, the average time from the date a hearing was requested to the day when a decision was issued was one hundred sixty-seven days; in only 6 of 343 hearings was a decision rendered within forty-five days.

Defendants denied wrongdoing and the existence of a requirement that hearings be held and decisions rendered within forty-five days of receipt of a request.

After attempts at settlement proved fruitless, the parties engaged in substantial discovery. Thereafter the parties agreed to a Consent Decree clearly delineating the due process rights of handicapped children in this state. Plaintiffs claim that the Consent Decree incorporates the procedural guarantees they sought to vindicate, thereby entitling them to attorney fees as a "prevailing party" under 42 U.S.C. § 1988. Alternatively, plaintiffs argue their entitlement to attorney fees under the Handicapped Children's Protection Act of 1986 ("HCPA"), Pub.L. No. 99-372, codified at 20 U.S.C. § 1415(e),³ which not only provided for attorney fees in EHA cases but made them retroactive.

Discussion

I.

A "prevailing party" in a 42 U.S.C. § 1983 action to vindicate constitutional rights is entitled to reasonable attorney fees. 42 U.S.C. § 1988.

Defendant argues against the award of attorney fees under 42 U.S.C. § 1988 on the grounds that: (A) the plaintiffs' exclusive remedy for actions such as this is the EHA, not § 1983, and the EHA did not provide for attorney fees, Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984); (B) the 1986 amendments to the EHA (authorizing attorney fee awards in cases pending at the time Smith was decided) is unconstitutional; (C) plaintiffs did not "prevail" in this litigation; and (D) plaintiffs unnecessarily prolonged the litigation. These arguments will be considered in order.

A.

Defendants rely on Bonar v. Ambach, 771 F.2d 14 (2d Cir.1985), and McKenzie v. Smith, 771 F.2d 1527 (D.C.Cir. 1985), for the proposition that Smith v. Robinson makes the EHA, not § 1983, plaintiffs' exclusive remedy. Although attorney fees were there held not available for plaintiffs who pursue their rights under the EHA, the courts left open the possibility — as did Smith — of attorney fee awards under § 1988 where plaintiffs are forced to go outside the EHA to obtain relief. As stated in Smith:

While Congress apparently has determined that local and state agencies should not be burdened with attorney's fees to litigants who succeed, through resort to the procedures outlined in the EHA, in requiring those agencies to provide free schooling, there is no indication that agencies should be exempt from a fee award where plaintiffs have had to resort to judicial relief to force the agencies to provide them the process they were constitutionally due.

468 U.S. at 1014-15, n. 17, 104 S.Ct. at 3470, n. 17. See Bonar v. Ambach, 771 F.2d at 19 ("an independent due process challenge to State procedures might succeed where ... resort to EHA procedures would be futile or inadequate"); Quackenbush v. Johnson City School Dist., 716 F.2d 141, 148 (2d Cir.1983) ("§ 1983 ... supplies the right of action to a plaintiff who has been denied procedural safeguards under § 1415 and who, as a result thereof, has not received the findings and decision following the impartial due process administrative hearing contemplated by § 1415").

Plaintiffs here sought from defendants the timely hearings mandated by state and federal law — precisely the situation exempted by Smith from its holding that EHA provides the exclusive remedy in cases involving the rights of mentally handicapped school children.⁴ Accordingly, plaintiffs are not ineligible for attorney fees pursuant to § 1988.

B.

Yet, even if the EHA were plaintiffs' exclusive remedy, the 1986 amendment to the EHA authorized attorney fee awards in EHA cases retroactive to July 3, 1984 — the day before Smith was decided. The clear intent of Congress was to negate Smith. The constitutionality of those amendments has been upheld in a definitive opinion by Nevas, J., in Counsel v. Dow, 666 F.Supp. 366 (D.Conn.1987). Accordingly, plaintiffs are eligible for attorney fees under the EHA.

C.

Whether under EHA or § 1988, plaintiffs must establish that they prevailed to be eligible for attorney fees. A plaintiff is a "prevailing party" if he or she has succeeded "on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1982). The fact that the litigation ended by a settlement does not preclude plaintiffs from claiming attorney fees as a "prevailing party." Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980).

The Consent Decree herein provides in detail for scheduling EHA hearings and decisions to ensure compliance with what it is specifically acknowledged to be "the 45 day time limit provided by state law ... and the time limit provided in federal regulations." Consent Decree, Exhibit A. When viewed in light of defendants' significant and repeated departures from the forty-five day time limit before this action was brought, and the lack of any procedure established to assure adherence to the time limits fixed by law, the Consent Decree establishes the most important of plaintiffs' objectives: to force the state to recognize its responsibility to hold hearings and render decisions within forty-five days of receiving a request for an EHA hearing as the law required.

It is true that plaintiffs dropped their second claim regarding the issues which could be raised at EHA hearings and their third claim regarding the independence of hearing officers. The second claim was abandoned, however, only after the Connecticut legislature enacted a measure, drafted by counsel for plaintiffs, which accorded handicapped children equivalent relief. These facts do not detract from the fact that plaintiffs prevailed on a principal issue in the law suit — the lack of timely hearings and decisions. Where two or more claims challenge a single procedure or practice, it is inappropriate to refuse to award a reasonable attorney fee where one claim was successful. McCann v. Coughlin, 698 F.2d 112, 130 (2d Cir. 1983); cf. Hensley v. Eckerhart, 461 U.S. at 440, 103 S.Ct. at 1943 (hours spent solely on unsuccessful claims should be excluded where unsuccessful claims are "distinct in all respects" from the successful claims). Here, at most, a small amount of attorney time was spent on the issues not resolved in the Consent Decree, and all three issues in the complaint concern state compliance with EHA hearing regulations. Accordingly, plaintiffs have prevailed on an issue central to their suit and attorney fees related thereto will be awarded.

D.

Defendants contend that attorney fees, if held to be awarded, should nevertheless be denied or drastically reduced because plaintiffs prolonged this litigation by failing to respond positively to defendants' settlement overtures and by unleashing a "barrage" of discovery requests.

Defendants wrote plaintiffs on January 31, 1984, to propose that if plaintiffs dropped their claim that the state is obligated under the EHA to provide hearings and decisions within forty-five days of the filing of a request, it might be possible to resolve the case without extensive litigation. Defendants' Memorandum, Exhibit A ("regardless of whether the timelines are mandatory or directory, or whether they allow a 45 or 75 day period"). No mention was then made of plaintiffs' other claims — the independence of hearing officers and the scope of the hearings. Rather than proposing to establish compliance with federal timeline requirements, defendants' proposal rejected the concept that such requirements existed. Nevertheless, plaintiffs answered on February 28, 1984, and left open the possibility of further exchanges pointed toward settlement. Defendants unjustifiably interpreted plaintiffs' response as a "complete rejection" of its own settlement efforts and unilaterally broke off negotiations. Defendants' Memorandum, Exhibit B. By abjectly failing, if not refusing, to work toward a resolution of the dispute based on an acceptance of the time limits established by law and working...