Espino v. Besteiro

• Decision Date: 05 July 1983
• Docket Number: No. 82-2081,82-2081
• Parties: 11 Ed. Law Rep. 806 Raul ESPINO, Jr., etc., et al., Plaintiffs-Appellants, v. Raul BESTEIRO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1002

708 F.2d 1002

11 Ed. Law Rep. 806

Raul ESPINO, Jr., etc., et al., Plaintiffs-Appellants, v. Raul BESTEIRO, et al., Defendants-Appellees.

No. 82-2081.

United States Court of Appeals, Fifth Circuit.

July 5, 1983.

Gerald A. Garcia, Harlingen, Tex., for plaintiffs-appellants.

Tony Martinez, Horacio Barrera, Brownsville, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

THORNBERRY, Circuit Judge:

INTRODUCTION:

Appellant Raul Espino appeals from the district court's denial of attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. Sec. 1988 (West 1981), and the attorney's fees provision of the Rehabilitation Act of 1973, 29 U.S.C.A. Sec. 794a(b) (West Supp.1982). We hold that the district court exceeded the bounds of its discretion in denying attorney's fees under Sec. 1988, and therefore do not reach the question whether fees should have been awarded under Sec. 794a(b). Accordingly, we REVERSE and REMAND with instructions to award reasonable attorney's fees under the guidelines set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).

FACTS AND PROCEDURAL HISTORY:

Raul Espino was involved in an automobile accident when he was only 11 months old that left him a quadraplegic. As a result of his injuries, which included damage to the sympathetic nervous system, his body cannot adequately dissipate or conserve heat. This inability to regulate body temperature requires that Raul be kept in a stable temperature-controlled environment of 68?-78? F.

When he reached school age, Raul was enrolled in a kindergarten at the Moody School for the Handicapped in Brownsville, Texas. Because the school was fully air-conditioned, Raul encountered few problems caused by extremes in temperature.

When it came time for Raul to go off to first grade, the Admission, Review and Dismissal Committee [ARD] of the Brownsville Independent School District [BISD] met to conduct its annual review of Raul's educational placement. Because of its determination that the facilities at Moody were insufficient to meet Raul's social and intellectual needs, the ARD recommended that he be "mainstreamed," i.e. placed in a regular, air-conditioned first grade classroom within the BISD and educated with nonhandicapped children.

At the time this decision was made, however, there were no air-conditioned regular classrooms in the BISD system at the elementary level. On Raul's first day in school, he and his mother discovered that he was not going to be placed in an air-conditioned classroom. Instead, the BISD, headed by named defendant herein, Superintendent Raul Besteiro, had constructed a portable five foot plexiglass box with a window air-conditioning unit and placed it in Raul's first grade classroom for his use. Neither Raul's parents nor the ARD had been informed of this solution to Raul's problems. The solution was primarily conceived of by Superintendent Besteiro, who reasoned that air-conditioning a single classroom for Raul would open up a "Pandora's Box" of complaints by the teachers and parents of children in other classrooms that were not air-conditioned. Superintendent Besteiro was also concerned that by air-conditioning a classroom for Raul, he would be violating Bulletin 871 which sets out guidelines for administering the Texas Special Education Program. Although the Bulletin allows the use of special education funds for a particular handicapped child, it does not refer to expenditures of these funds on nonhandicapped peers. ¹

Raul was enrolled and spent up to 75% of his class time in the plastic cubicle during the warm spring and fall months of his first year in school. Initially, the cubicle had no sound system, and Raul had difficulty hearing his teacher until a one-way radio receiver was installed.

In November 1980, Raul's parents filed an administrative complaint challenging BISD's decision to place Raul in the air-conditioned plastic cubicle. A due process hearing held before an officer of the Texas Education Agency on December 2, 1980 resulted in a decision in BISD's favor which was adopted by the Texas Commission of Education on February 4, 1981. Having exhausted his administrative appeals, Raul filed suit against Superintendent Besteiro and the Trustees of the BISD on July 24, 1981, alleging violations of his rights under the Rehabilitation Act of 1973, 29 U.S.C.A. Sec. 794 (West Supp.1982); ² the Education for All Handicapped Children Act of 1975, 20 U.S.C.A. Sec. 1401 et seq. (West 1978 & West Supp.1982) [EAHCA]; ³ 42 U.S.C.A. Sec. 1983 (West 1981); ⁴ the Due Process and Equal Protection Clauses of the Fourteenth Amendment; Tex.Educ.Code Ann. Sec. 16.104 (Vernon Supp.1982), and Tex.Hum.Res.Code Ann. Sec. 121.001 (Vernon 1980). ⁵

The federal causes of action alleged that by isolating Raul in a plexiglass cubicle, the BISD had violated his right to be free from discrimination on the basis of handicap, his right to a free, appropriate public education in the least restrictive setting, and his right to due process and equal protection of the law. The complaint sought temporary and permanent injunctive relief, as well as compensatory and punitive damages.

Following an evidentiary hearing, the district court granted Raul's motion for a preliminary injunction. The court found that Raul had demonstrated a likelihood of success on the merits of his claim under the EAHCA, and enjoined the BISD from refusing to provide Raul an air-conditioned environment in which he could fully interact with his nonhandicapped peers. The court's order also enjoined the BISD from requiring Raul to attend class in an air-conditioned cubicle or any other segregated environment. The BISD then worked out an arrangement whereby Raul would be educated in an air-conditioned classroom in a local, private school. The court found this arrangement to be in compliance with its earlier order, and on January 7, 1982 entered final judgment in this case sua sponte.

Raul subsequently filed a motion for attorney's fees under 28 U.S.C.A. Sec. 1988 and 29 U.S.C.A. Sec. 794a(b) of the Rehabilitation Act of 1973. The BISD did not file an objection to this motion. On January 29, 1982, without a hearing, the court denied the motion, stating only that:

The Court has considered Plaintiff's Motion and, noting that the awarding of attorney's fees in this case is within the Court's discretion, and further noting that the position taken by Defendants herein was in good faith compliance with a reasonable interpretation of the law, is of the opinion that said motion be denied.

Raul appeals that decision to this Court.

ANALYSIS:

Under the "American Rule," each party to a suit is generally required to pay its own attorney's fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). Congress, however, has enacted a number of statutory exceptions to this rule. Alyeska, 95 S.Ct. at 1623. One such exception is the Civil Rights Attorney's Fees Awards Act of 1976, 28 U.S.C.A. Sec. 1988 (West 1981), which provides in pertinent part:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

Special Circumstances

In enacting Sec. 1988, Congress stated that "a party seeking to enforce the rights protected by the statutes covered by [this Act], if successful, 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 [88 S.Ct. 964, 966, 19 L.Ed.2d 1263] (1968)." S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912. This "Newman rule" has consistently been applied by this Court to prevailing plaintiffs seeking attorney's fees under Sec. 1988. Riddell v. National Democratic Party, 624 F.2d 539, 543 (5th Cir.1980); Gates v. Collier, 616 F.2d 1268, 1275 (5th Cir.1980), modified on other grounds, 636 F.2d 942 (5th Cir.1981); Universal Amusement Co., Inc. v. Hofheinz, 616 F.2d 202, 204-05 (5th Cir.1980), modified on other grounds, 646 F.2d 996 (5th Cir.1981); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir.1978), vacated sub nom. on other grounds, Morrow v. Finch, 642 F.2d 823 (5th Cir.1981).

In reviewing a district court's denial of Sec. 1988 attorney's fees, we are limited to determining whether the court abused its discretion. The discretion to deny Sec. 1988 fees is, however, extremely narrow. Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955 (5th Cir.1981). Absent special circumstances that would render such an award unjust, a prevailing plaintiff should be awarded Sec. 1988 fees "as a matter of course." Gates, 616 F.2d at 1275 (emphasis added). However, the special circumstances exception to the general rule requiring the award of fees is an extremely limited one. Ellwest, 653 F.2d at 955.

Here, aside from a naked assertion of discretionary authority, the only reason given by the district court for its denial of Sec. 1988 fees was that "the position taken by Defendants herein was in good faith compliance with a reasonable interpretation of the law." Good faith is not a special circumstance sufficient to justify the denial of fees under Sec. 1988. Ellwest, 653 F.2d at 955; Aware Woman Clinic v. City of Cocoa Beach, 629 F.2d 1146, 1148-49 (5th Cir.1980). Indeed, in Riddell, we rejected the same argument now made by Superintendent Besteiro:

State Officials cannot show special circumstances sufficient to prevent an award of fees merely because the officials enforced [a] statute in good faith compliance with...