Dodds v. Simpson, Civ. No. 84-6415-E-PA.
Citation | 676 F. Supp. 1045 |
Decision Date | 19 May 1987 |
Docket Number | Civ. No. 84-6415-E-PA. |
Parties | Robert DODDS, Helen Dodds, individually and on Behalf of their son, Kevin Dodds, Plaintiffs, v. John SIMPSON, individually and in his official capacity; Carl Cole, individually and in his official capacity; and the Josephine County School District, Defendants. |
Court | U.S. District Court — District of Oregon |
Steven L. Brischetto, Baldwin & Brischetto, Portland, Or., for plaintiffs.
William V. Deatherage, Frohnmayer, Deatherage, Deschweinitz, Pratt & Jamieson, P.C., Medford, Or., for defendants.
Plaintiffs Kevin Dodds and his parents, Helen and Robert Dodds, originally brought this action under the Education for All Handicapped Children Act (EHA), the Rehabilitation Act of 1973, and 42 U.S.C. § 1983. Defendants John Simpson, Carl Cole, and the Josephine County School District moved for summary judgment. I granted that motion and filed an opinion on September 11, 1986. Judgment entered September 17, 1986.
Plaintiffs timely moved to alter or amend judgment, based on the August 5, 1986 amendments to the EHA. I granted the motion to amend the judgment, and reinstated plaintiffs' claims pursuant to 42 U.S. C. § 1983 and for attorney's fees and costs. Defendants moved to reconsider, and by trial brief and supplemental trial brief contend that plaintiffs' claims should not have been reinstated. I disagree.
The 1986 amendments to the EHA provide:
Handicapped Children's Protection Act of 1986, Pub.L. No. 99-372, 100 Stat. 796, 797 ( ).
Defendants contend that because Congress specifically provided that Section 2 would be retroactive, Congress intended that the remainder of the amendments would not be retroactive, citing Taylor v. Board of Education, 649 F.Supp. 1253 (N.D.N.Y.1986). In Taylor, the court held that absent clear legislative intent to the contrary, retroactive effect should not be given to Section 3 of the amendment. Id. at 1259.
Two other courts addressing this issue have determined that Section 3 does have retroactive effect. Jackson v. Franklin County School Board, 806 F.2d 623, 627-28 (5th Cir.1986); Board of Education v. Diamond, 808 F.2d 987, 995-96 (3rd Cir. 1986). The Third Circuit found that congressional silence was insufficient to infer congressional intent to limit section 3 to subsequently filed lawsuits. Rather, the court must apply the law in effect at the time it renders its decision. Id.; accord Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974) ( ).
I find that section 3 applies retroactively to this action. Plaintiffs' section 1983 claim will proceed to trial.
Defendants also contend that plaintiffs cannot recover attorney's fees and costs because plaintiffs did not exhaust their administrative remedies as they prevailed through settlement.
The attorney's fee provision of the 1986 amendment was modeled after the fee provision of Title VII. Cf. 20 U.S.C. § 1415(e)(4)(B) to 42 U.S.C. §...
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