Brown v. Griggsville Community Unit School Dist. No. 4

• Decision Date: 20 December 1993
• Docket Number: No. 93-2072,93-2072
• Citation: 12 F.3d 681
• Parties: 88 Ed. Law Rep. 63, 3 ADD 915 Earl D. BROWN and Laurie A. Brown, as parents of B. Brown, a minor, Plaintiffs-Appellants, v. GRIGGSVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 4; Delbert Camp, Superintendent; Kim Curry, Member of the Board of Education; et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 681

12 F.3d 681

88 Ed. Law Rep. 63, 3 ADD 915

Earl D. BROWN and Laurie A. Brown, as parents of B. Brown, a minor, Plaintiffs-Appellants, v. GRIGGSVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 4; Delbert

Camp, Superintendent; Kim Curry, Member of the

Board of Education; et al., Defendants-Appellees.

No. 93-2072.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 1993.

Decided Dec. 20, 1993.

Katherine M. Black, Carbondale, IL (argued), for plaintiffs-appellants.

Larry D. Kuster (argued), Richard Freeman, Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, Jacksonville, IL, for defendants-appellees.

Before POSNER, Chief Judge, MANION, Circuit Judge, and GRANT, Senior District Judge. ^*

POSNER, Chief Judge.

A federal statute, the Individuals with Disabilities Education Act, 20 U.S.C. Secs. 1400 et seq., confers certain legal rights on the parents of disabled children of school age. When on May 29, 1991, the defendant school district notified the Browns that their disabled child, having just flunked second grade, would in the coming academic year be placed in a special class for physically disabled children in a school thirty miles from the Browns' home, they immediately--in fact on the same day--requested a hearing before an impartial hearing officer appointed by the school board pursuant to 20 U.S.C. Sec. 1415(b)(2) and 34 C.F.R. Sec. 300.507. They retained counsel to assist them with the hearing process. It is likely, though unclear from the record, that they had advance notice of the board's decision and had been advised by counsel to request the hearing, since the request automatically stayed the transfer of their child until the hearing was held. 20 U.S.C. Sec. 1415(e)(3).

After a number of mutually agreed-upon continuances--without which the hearing officer would have been required to render his decision within 45 days of the request for a hearing, 34 C.F.R. Sec. 300.512(a)(1)--the hearing was definitively scheduled for June 8, 1992. Hence the Browns' child remained in his local school for the entire 1991-1992 academic year. During this "stay put" period there were no negotiations or other contacts or communications between the Browns or their lawyer, on the one hand, and school officials on the other.

On May 27, 1992, less than two weeks before the hearing was to take place, the school board convened the regular annual meeting required by the Act to consider the placement of students with special needs. 20 U.S.C. Sec. 1414(a)(5); 34 C.F.R. Sec. 300.343(d). At the meeting, the board decided that the Browns' child should remain in the local school. Since this was all the parents wanted, they withdrew their request for a hearing and it was never held. They then filed this proceeding in federal district court, seeking a modest award (less than $1,000) of attorney's fees under 20 U.S.C. Sec. 1415(e)(4)(B), which provides: "In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a child or youth with a disability who is the prevailing party." On the school district's motion for summary judgment, the district court dismissed the action on the ground that the Browns, while they had got what they wanted, had not prevailed within the meaning of the statute, 817 F.Supp. 734 (C.D.Ill.1993).

There is an anterior question: whether the provision on attorney's fees is applicable when there are no proceedings in the district court other than the request for fees. The school district has not contested the point, but we cannot ignore it. The question whether Congress has authorized the federal courts to entertain a particular type of proceeding, here one to recover attorney's fees for services rendered exclusively in a proceeding before another tribunal, is jurisdictional. If, for example, Congress authorizes the federal courts to award fees to prevailing plaintiffs in securities cases, the courts may not use the statute to award fees to prevailing plaintiffs in food-stamp cases, even if no party objects to that use of the statute. Crowley Cutlery Co. v. United States, 849 F.2d 273, 276-78 (7th Cir.1988).

Ordinarily a request for attorney's fees is tendered to the tribunal, whether judicial or administrative, before which the attorney appeared, or at least that had jurisdiction over the case in which he rendered services. Dickie v. City of Tomah, 999 F.2d 252 (7th Cir.1993). Consistent with this practice, the provision we quoted earlier authorizes the award of attorney's fees "in an action or proceeding brought under this subsection," that is, subsection (e), which is the provision that authorizes suits in federal district court to enforce rights granted by the Individuals with Disabilities Education Act. There was no such suit here. The system of enforcement created by the Act has three stages. First is the hearing before a hearing officer appointed by the state agency responsible for compliance with the Act. 20 U.S.C. Sec. 1415(b). Next, if the hearing officer turns down the parents, they can appeal to the agency. Sec. 1415(c). If they strike out with the agency, they can bring a suit under section 1415(e). The statute makes no provision for an award of attorney's fees for work performed at the previous stages, which is why there is an issue of the district court's jurisdiction to entertain this suit.

The courts that have addressed the issue have agreed, however, that section 1415(e)(4) should be interpreted, despite the semantic strain involved, to encompass legal services rendered at the first or second stage, even if there is no third--no judicial--stage. Barlow-Gresham Union High School Dist. No. 2 v. Mitchell, 940 F.2d 1280, 1284-85 (9th Cir.1991); Angela L. v. Pasadena Independent School Dist., 918 F.2d 1188, 1192 n. 1 (5th Cir.1990); Moore v. District of Columbia, 907 F.2d 165 (D.C.Cir.1990) (en banc), and cases cited there. We think this is right. In view of the amount of ink that has already been spilled in the discussion of the issue, notably in the Moore decision, we shall be brief.

The House committee's report explains that the provision authorizes an award of attorney's fees to "the prevailing party in an action or proceeding (a due process hearing or a state level review) brought under" the Act, H.R.Rep. No. 296, 99th Cong., 1st Sess. 5 (1985), thus in effect defining "action" as a judicial proceeding and "proceeding" as an administrative proceeding. Was the committee trying to slip a fast one by Congress and the President? That is possible, though as far as we know no one has ever thought well enough of the argument to make it. While the committee's gloss does considerable violence to the statutory language ("action or proceeding brought under this subsection"), to reject its gloss would leave unexplained why the provision reads "action or proceeding" rather than just "action" or just "proceeding," the implication being that there may be, consistent with the House committee's report, two different types of process to which the provision applies. Of course "or proceeding" may just be redundant; it is suggestive in this connection that the phrase "action or proceeding" occurs 413 times in the United States Code and is never defined. But interpretive literalists hesitate to dismiss statutory language as surplusage. They could not therefore come up with a completely satisfactory literal reading of this statute. Suspicion arises that "subsection" is a mistake, and "section" was intended.

There is enough linguistic play in the statutory joints to allow us to look beyond the words of the statute and consider not only the legislative history but also the consequences of alternative interpretations. It would be anomalous to make the entitlement to attorney's fees depend on the stage at which a plaintiff's successful effort to enforce the rights conferred by the Individuals with Disabilities Education Act terminated. In effect, the claimant files his claim with the school board, with intermediate review by a state agency, rather than proceeding from the outset entirely in the district court. In effect, the hearing officer appointed by the school board, and the reviewing agency, are adjuncts of the court, like a magistrate, in the administration of the federal statute (Congress is constantly dragooning state agencies into the enforcement of federal statutes). The fact...