Duane M. v. Orleans Parish School Bd.

• Decision Date: 02 December 1988
• Docket Number: No. 87-3906,87-3906
• Citation: 861 F.2d 115
• Parties: , 51 Ed. Law Rep. 365 DUANE M., Plaintiff-Appellee, v. ORLEANS PARISH SCHOOL BOARD, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 115

861 F.2d 115

57 USLW 2356, 51 Ed. Law Rep. 365

DUANE M., Plaintiff-Appellee, v. ORLEANS PARISH SCHOOL BOARD, Defendant-Appellant.

No. 87-3906

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Dec. 2, 1988.

Kenneth F. Sills, New Orleans, La., for defendant-appellant.

James E. Comstock-Galagan, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, KING and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Orleans Parish School Board ("School Board") appeals the district court's award of attorneys' fees and costs to Duane M., incurred in his successful efforts to pursue administrative remedies with the School Board under the Education of the Handicapped Act. The School Board charges that, because this suit was brought solely for the purpose of obtaining attorneys' fees, the district court lacked subject matter jurisdiction and that hence Duane's suit fails to state a claim upon which relief can be granted. Agreeing with the district court that the Handicapped Children's Protection Act mandates an award of attorneys' fees, and authorizes a separate suit to be brought for these fees when they are incurred in the successful pursuit of administrative remedies, we affirm.

I. Facts.

In the spring of 1985, the School Board evaluated Duane as an autistic child. The School Board's evaluating team recommended that Duane receive twenty-four-hour supervision, because the great discrepancy between his physical development and low level of functioning made him a danger to himself and others. During the summer of 1985, the School Board held an Individualized Education Program ("IEP") meeting, attended by school officials, evaluation team members, and Duane's parents. The result of the meeting was a decision to place Duane in a special residential school within the next thirty days. However, while Duane attended special summer programs, school officials delayed his placement into a residential school; the School Board had not yet placed Duane even as the new 1985-86 school year began.

In October 1985, Duane's parents requested a due process hearing pursuant to the provisions of the Education of the Handicapped Act. Prior to that hearing, an additional IEP conference was held in which several school officials disputed Duane's earlier classification as an autistic child. They concluded Duane's needs would be better served if he were placed in a program for non-aggressive, emotionally disturbed children in Southeast Louisiana State Hospital. After initially refusing to admit Duane into their program because of his autism, the Hospital capitulated to the School Board's requests and notified Duane's parents on October 22, 1985, that it would admit Duane.

Duane's parents disagreed with the School Board's reappraisal of Duane's needs and went forward with the due process hearing. When the hearing commenced on October 24, 1985, the School Board argued that Duane's classification as autistic was in error, and that he should be placed in a class for emotionally disturbed children. Duane's parents, represented by an attorney from the Advocacy Center for the Elderly and Disabled, argued that Duane properly had been classified as autistic and that the program offered at Southeast Louisiana State Hospital was inappropriate for his needs. In addition, the parents contended that the original recommendation for Duane was best; he would do better in a residential program for high-functioning autistic children.

On February 20, 1986, the hearing officer issued his decision accepting Duane's parents' contentions regarding Duane's status. Nevertheless, the officer concluded that placement in the Hospital's program would serve Duane's needs adequately. Duane's parents appealed the placement decision to the state-level review panel. That panel overruled the hearing officer's placement decision and held that Duane should be placed in a residential program for autistic children.

In September 1986, the parties signed a settlement agreement. The School Board agreed to place Duane in a Jefferson Parish class for high-functioning autistic children. The settlement was silent with respect to attorneys' fees. Duane's parents then filed the instant suit, seeking only attorneys' fees as provided under the Handicapped Children's Protection Act.

II. The Handicapped Children's Protection Act.

The Education of the Handicapped Act ("EHA"), 20 U.S.C. Sec. 1400 et seq., ¹ guarantees to all handicapped children a free, appropriate public education. In Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court held that the EHA was the exclusive statutory remedy for deprivations of educational rights which that act creates. The Court further held that because the statute contained no provision for attorneys' fees, fees were not available in suits brought to enforce those rights.

Congress disapproved of the decision in Smith v. Robinson and acted "swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent." Fontenot v. Louisiana Bd. of Elementary & Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.1986). Congress amended the EHA through the Handicapped Children's Protection Act of 1986, Pub.L. No. 99-372, 100 Stat. 796 (codified in scattered sections at 20 U.S.C. Sec. 1400 et seq.) (1982 & Supp.1988) ("HCPA"), whose application Congress made retroactive to the day before the Court announced its decision in Smith v. Robinson. See Pub.L. No. 99-372, Sec. 5. The HCPA, adding Sec. 1415(e)(4)(B), 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 handicapped child or youth who is the prevailing party.

The School Board contends that the phrase "action or proceeding" refers only to suits in the district court to enforce the provisions of the EHA. Under this reading of the HCPA, attorneys' fees would be available only when one party has brought suit after losing at the administrative level. No fees would be available to parents who, like Duane's parents, prevailed at the administrative level and therefore have nothing to appeal. Absent a continuing dispute between the parties, the parents of a child who prevailed at the due process hearings then could not bring a separate suit for fees in the district court.

Duane's parents contend that the HCPA's legislative history demonstrates that Congress intended to allow separate suits for attorneys' fees. They contend that the School Board's interpretation of the Act would thwart Congress' intent. They cite ten recent district court opinions considering the question, all but one having decided that parents may bring a separate suit for attorneys' fees. ²

The district court decided this question of first impression in our circuit in favor of Duane's parents. The court granted summary judgment, holding that the EHA authorizes a separate action solely for attorneys' fees and that Duane was the prevailing party below.

We review de novo the summary judgment in favor of Duane's parents. The School Board admits that Duane is properly characterized as a prevailing party and hence, the disposition of this summary judgment ruling turns solely on questions of law concerning the proper interpretation of the HCPA's attorneys' fees provision.

III. Interpreting the HCPA.

The School Board contends that because the language of section 1415(e)(4)(B) is unambiguous, and because it appears in a section entitled "Civil action; jurisdiction; attorney fees," we need not look to the legislative history of the HCPA in order to decide that a separate action for attorneys' fees alone cannot be brought by a prevailing party. See Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917); Johnson v. Department of the Treasury, I.R.S., 700 F.2d 971, 974 (5th Cir.1983).

The School Board's argument is unpersuasive. The HCPA does not expressly confer upon prevailing parties at the administrative level a right to bring a separate action solely in order to recover attorneys' fees, nor does it forbid such an action. The statute is simply silent on the question which we address here. In such cases, we must turn to the legislative history.

The School Board also argues that we should give the phrase "action or proceeding" an interpretation consistent with other interpretations of the same phrase in other statutes. Specifically, the School Board contends that the language of section 1415(e)(4)(B) of the HCPA is similar to that of 42 U.S.C. Sec. 1988.

Section 1988 provides that in "any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title ... or title VI of the Civil Rights Act of 1964," the district court may award attorneys' fees to the prevailing party. In a recent case, North Carolina Dept. of Pub. Transp. v. Crest Street Community Council, Inc., 479 U.S. 6, 107 S.Ct. 336, 93 L.Ed.2d 188 (1986), the Court held that no separate federal action could be brought to recover attorneys' fees under section 1988. The Court reasoned,

The plain language of section 1988 suggests the answer to the question whether attorney's fees may be awarded in an independent action which is not to enforce any of the civil rights laws listed in section 1988. The section states that in the action or proceeding to enforce the civil rights laws listed ... the court may award attorney's fees. The case before us is not, and was never, an action to enforce any of these laws. On its face, section 1988 does not authorize a court to award attorney's fees except in an action to enforce the listed civil rights laws.

479 U.S. at 12, 107 S.Ct. at 340 (emphasis in original). Relying on this language, the School Board contends that because Duane's parents did not bring an action to...