Fontenot v. Louisiana Bd. of Elementary and Secondary Educ., 86-3011

• Decision Date: 15 December 1986
• Docket Number: No. 86-3011,86-3011
• Citation: 805 F.2d 1222
• Parties: 36 Ed. Law Rep. 61 Allan FONTENOT, Plaintiff-Appellant, v. LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1222

805 F.2d 1222

36 Ed. Law Rep. 61

Allan FONTENOT, Plaintiff-Appellant, v. LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION, et al., Defendants-Appellees.

No. 86-3011.

United States Court of Appeals, Fifth Circuit.

Dec. 15, 1986.

Maureen O'Connell, Brenda Brown, New Orleans, La., for plaintiff-appellant.

James Carl Hrdlicka, Asst. Atty. Gen., Wm. J. Guste, Jr., Atty. Gen., Baton Rouge, La., for defendants-appellees.

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

Before GOLDBERG, REAVLEY and GARWOOD, Circuit Judges.

GOLDBERG, Circuit Judge:

Allan Fontenot appeals a district court decision that he is not entitled to recover attorney's fees. Fontenot claimed that he was entitled to recover such fees under 42 U.S.C. Sec. 1988 or, in the alternative, under Sec. 505 of the Rehabilitation Act, 29 U.S.C. Sec. 794a, because he had secured a victory on his 42 U.S.C. Sec. 1983 claim that asserted causes of action under Sec. 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794, the Due Process Clause of the 14th Amendment, and the Education of Handicapped Children's Act (EHA), 20 U.S.C. Sec. 1400 et seq. The district court found that Fontenot's successful action on the merits was based exclusively on the EHA, relying on Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). Because the EHA did not have an attorney's fees provision, such fees were held unavailable. Subsequent to the district court's decision, Congress amended the EHA expressly to make attorney's fees available, and in effect overruled the Supreme Court's decision in Smith. We thus vacate and remand.

We are often critical of Congress for writing vague or confusing laws--laws that can defy rational judicial interpretation. Indeed, on occasion it seems that the political processes ensure an oxymoronic exercise of conscious congressional ambiguity, which forces the judiciary into the delphic realm of augury and soothsaying. Normally the courts must divine congressional intent or statutory policy to dispose of the issue at hand. This is not such a case, however. Congress read the Supreme Court's decision in Smith and acted swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent. ¹ Such attentive interaction between the First and Third Branches is all too rare, and exemplary of the way the democratic process should work in our system of government.

I.

Fontenot, a young man with an orthopedic handicap, developed respiratory problems while a resident of the Louisiana Special Education Center (LSEC). Dr. Aline Cicardo is the Superintendent of LSEC, and LSEC is an agency of the Louisiana Board of Elementary and Secondary Education.

In March 1985, Fontenot was admitted into Children's Hospital in New Orleans and placed on a ventilator. In April, the Hospital's physicians determined that Fontenot should be released and returned to LSEC. LSEC, however, refused to readmit Fontenot, claiming that it did not have the proper staff or facilities to handle Fontenot's respiratory requirements.

After LSEC refused to admit Fontenot, he requested a state "due process" hearing, which was convened pursuant to Sec. 615(b)(2) of the EHA, 29 U.S.C. Sec. 1415(b)(2). On August 15, the Hearing Officer determined that Fontenot should be readmitted to LSEC.

LSEC persisted in its refusal to readmit Fontenot. He then brought suit in federal district court, seeking an order enjoining LSEC to comply with the Hearing Officer's decision. Fontenot also sought monetary damages ² and reasonable attorney's fees. On October 3, 1985, the district court entered a judgment on the merits for Fontenot, granting a permanent injunction that ordered LSEC to comply with the Hearing Officer's decision pursuant to Secs. 615(b)(2) and 615(e)(3) of the EHA. LSEC complied with the court's order, and Fontenot again resides at LSEC.

Having prevailed on the merits, Fontenot filed a motion on October 28, 1985 seeking attorney's fees for his effort to obtain judicial relief. On November 26, the district court denied Fontenot's motion.

II.

In denying Fontenot's motion for attorney's fees, the district court relied on Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). In Smith, the petitioner brought a complaint under the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, alleging that the state had violated the EHA, the Due Process and Equal Protection Clauses of the 14th Amendment, and Sec. 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794. After prevailing on the merits, Smith sought attorney's fees pursuant to 42 U.S.C. Sec. 1988 and Sec. 505 of the Rehabilitation Act, 29 U.S.C. Sec. 794a, because attorney's fees were not then available under the EHA. The Supreme Court held that Smith's claim was exclusively controlled by the EHA and, because the EHA did not provide for attorney's fees, that attorney's fees were not available to Smith under Sec. 1988 or Sec. 505 of the Rehabilitation Act. Thus, in the case before us, the district court found that Fontenot's "substantive claim was based entirely on the provisions of [20 U.S.C.] Sec. 1400," that the case was controlled by Smith, and that Fontenot was not entitled to attorney's fees. Rec.Vol. 1 at 54.

Subsequent to the district court's ruling, Congress passed the Handicapped Children's Protection Act of 1986, P.L. 99-372, 100 Stat. 796 (to be codified at 20 U.S.C. Sec. 1415) (August 5, 1986). In this Act Congress amended the EHA expressly to provide attorney's fees to prevailing parties:

Sec. 2. Section 615(e)(4) of the Education of the Handicapped Act is amended by inserting "(A)" after the paragraph designation and by adding at the end thereof the following new subparagraphs:

"(B) 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.

"(C) For the purpose of this subsection, fees awarded under this subsection shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this subsection."

In explicitly providing for attorney's fees, Congress reversed the outcome mandated by Smith for plaintiffs asserting claims to enforce rights that attach under the EHA. Moreover, to abrogate fully any residual effect of Smith, Congress made the amendments to the EHA effective retroactive to the date of the Smith decision.

Sec. 5. The amendment made by section 2 shall apply with respect to actions or proceedings brought under section 615(e) of the Education of the Handicapped Act after July 3, 1984, and actions or proceedings brought prior to July 4, 1984, under such section which were pending on July 4, 1984.

Handicapped Children's Protection Act of 1986, P.L. 99-372, 100 Stat. 796 (to be codified at 20 U.S.C. Sec. 1415) (August 5, 1986).

III.

It is unmistakably clear that Fontenot was a prevailing party in an action to enforce his rights under the EHA, and that his claim was filed after the effective date of the amendments. Thus, it is plain that he is entitled to attorney's fees under the amended Act. Appellees, however, contend on appeal that the 11th Amendment prevents Fontenot from recovering attorney's fees predicated on his...