Georgia Ass'n of Retarded Citizens v. McDaniel, 87-8586

• Decision Date: 21 September 1988
• Docket Number: No. 87-8586,87-8586
• Citation: 855 F.2d 805
• Parties: 48 Ed. Law Rep. 1134 GEORGIA ASSOCIATION OF RETARDED CITIZENS, et al., Plaintiffs-Appellants, v. Dr. Charles McDANIEL, in his official capacity as State Superintendent of schools, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 805

855 F.2d 805

48 Ed. Law Rep. 1134

GEORGIA ASSOCIATION OF RETARDED CITIZENS, et al Plaintiffs-Appellants, v. Dr. Charles McDANIEL, in his official capacity as State Superintendent of schools, et al., Defendants-Appellees.

No. 87-8586.

United States Court of Appeals Eleventh Circuit.

Sept. 21, 1988.

Phyllis J. Holmen, Jonathan A. Zimring, Atlanta, Ga., for plaintiffs-appellants.

Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., Griffin B. Bell, Jr., Fisher & Phillips, Lawrence S. McGoldrick, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and CLARK, Circuit Judges, and GUIN ^*, District Judge.

CLARK, Circuit Judge:

This case concerns the retroactive application of the attorney's fee provision of the Handicapped Children's Protection Act ("HCPA") of 1986, 20 U.S.C. Sec. 1415(e). Because Congress did not clearly express an intention to have the HCPA apply to final judgments rendered prior to the date the Act became law, we hold, in light of the constitutional difficulties that would otherwise arise, that the Act may not be so construed.

I.

This lawsuit was filed in 1978 to redress alleged violations of the Education of the Handicapped Act ("EHA"), 20 U.S.C. Sec. 1401 et seq. and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. In an order dated April 3, 1981, the district court granted various forms of declaratory and injunctive relief to the plaintiffs. Georgia Association of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga.1981). A panel of this court affirmed the district court's judgment. 716 F.2d 1565 (11th Cir.1983). The Supreme Court vacated our judgment and remanded the case in light of its decision in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). See McDaniel v. Georgia Association of Retarded Citizens, 468 U.S. 1213, 104 S.Ct. 3581, 82 L.Ed.2d 880 (1984). In Smith, the Court held that a plaintiff asserting a valid claim under the EHA could not seek attorney's fees under 42 U.S.C. Sec. 1988 nor proceed simultaneously and seek fees under the Rehabilitation Act. On remand, we modified our opinion so as to make clear (1) that it affirmed only that portion of the district court's judgment granting relief under the EHA and (2) that a statement regarding the availability of attorney's fees was incorrect. Georgia Ass'n of Retarded Citizens v. McDaniel, 740 F.2d 902, 903 (11th Cir.1984) ("GARC III "), cert. denied, 469 U.S. 1228, 105 S.Ct. 1228, 84 L.Ed.2d 365 (1985).

Prior to the first appeal of this case to the Eleventh Circuit, the plaintiffs filed a motion in the district court for costs and attorney's fees. Upon motion by the local defendants, a ruling on this motion was stayed pending appeal. Subsequent to the issuance of the mandate in GARC III, the plaintiffs asked the district court to delay ruling on the motion for attorney's fees until Congress had time to act upon the bill which led to the enactment of the HCPA. In an order dated August 19, 1985, however, the district court, following Smith, denied the motion for attorney's fees. ¹ No appeal was taken from this order.

The HCPA became effective on August 5, 1986. A few weeks thereafter, the plaintiffs filed a new motion for attorney's fees. In an order dated June 29, 1987, the district court held that the HCPA could not be construed as providing a basis for attorney's fees in this case because such a construction would have the effect of voiding the court's earlier, unappealed judgment denying attorney's fees.

II.

It is section 5 of the HCPA that makes section 2 of the Act expressly retroactive to the date of the Supreme Court's decision in Smith:

Sec. 5.

The amendment made by section 2 [providing for attorney's fees to prevailing parents in EHA actions] 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.

Pub.L. No. 99-372, 100 Stat. 796 (Aug. 5, 1986). The plaintiffs argue that this provision, tied directly to a specific date of a Supreme Court decision, compels the conclusion that Congress intended to remove all impediments to a recovery of attorney's fees by those whom the decision affected adversely.

In support of their position, the plaintiffs have seized upon certain language in Fontenot v. Louisiana Board of Elementary and Secondary Education, 805 F.2d 1222 (5th Cir.1986), where Judge Goldberg discusses Congress' intent in enacting the HCPA:

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.

* * *

* * *

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.

Id. at 1223, 1224 (emphasis added). The factual and legal distinctions between Fontenot and this case are sufficient to make it certain that the last sentence of this statement is inapplicable here. First, in Fontenot, the appeal of the district court's first denial of attorney's fees was pending before the Fifth Circuit when Congress passed the HCPA. Thus, the question of the right to attorney's fees remained "live." Here, the plaintiffs did not appeal. Second, there was no constitutional challenge to the retroactive application of the Act. It is therefore clear that Judge Goldberg did not have in mind the legal question present here when he wrote that Congress intended to "abrogate" all effects of Smith.

One district court has read Fontenot in a manner favorable to the plaintiffs. Tatro v. State of Texas, E.H.L.R. Dec. 558:430 (N.D.Tex.1987), as the plaintiffs note, is a "procedural twin" to this case. In Tatro, the court granted a motion for attorney's fees based on the HCPA, even though the Supreme Court, had reversed an earlier award of fees on the authority of Smith. See Irving Independent School District v. Tatro, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984). The defendants contested the retroactive application of the HCPA, raising what appears to be the same argument made by the defendants in this case. The court considered the Fontenot language quoted above to be dispositive. Yet, as we have explained, Fontenot is no authority for the proposition that the HCPA may constitutionally alter the effect of a final judgment entered prior to Smith from which no appeal was taken.

In interpreting this provision, we are guided first by the principle, "expressed in varying degrees in strength," "that a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be 'the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.' " Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913) (citations omitted), quoted in United States v. Security Industrial Bank, 459 U.S. 70, 79, 103 S.Ct. 407, 413, 74 L.Ed.2d 235 (1982). See also United Sates Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U.S. 306, 314, 28 S.Ct. 537, 539, 52 L.Ed. 804 (1908) ("The presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other."). While there can be no doubt that Congress intended the HCPA to receive retroactive application, these principles should govern the determination as to the precise scope of the Act's retroactive application, especially since we are also obliged, when it is "fairly possible," to construe a statute in a manner that does not call that statute into constitutional doubt. See Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979).

The question is simple to pose: did Congress, by the language contained in the HCPA's retroactivity provision, intend for the HCPA to apply to cases in which final, unappealed judgments had been rendered prior to the statute's enactment date? The language of the HCPA's retroactivity provision is certainly not conclusive. Congress did not expressly provide that the Act should so apply. ² If the Act were to be interpreted in the manner urged by the plaintiffs, one would be required to conclude that Congress intended to "reverse" the outcome in the Smith case itself, giving the Smith plaintiffs a second chance at attorney's fees when the Supreme Court had held they were entitled to none. As we explain below, Congress may not--and typically does not--undertake to "reverse" the result that obtains in a particular Supreme Court decision. We doubt that it intended to do so in passing the HCPA.

To be sure, the Act is to apply to all cases "pending" on July 4, 1984. On that date this case was before the Supreme Court, certiorari having been granted simultaneously with the resolution of the merits on July 5, 1984. As the Supreme Court has explained, however, " '[p]ending' is simply not a term of art that unambiguously carries with it [any one] meaning." International Union of Electrical Workers v. Robbins & Myers Inc., 429 U.S. 229, 243, 97 S.Ct. 441, 450, 50 L.Ed.2d 427 (1976) ("pending" EEOC charge could be one which was "not yet rejected" on date of legislation). We conclude that, for the purposes of section 5 of the HCPA, the class of cases "pending" on July 4, 1984 does not include a case in which a final judgment as to attorney's fees was rendered and became unappealable before August 5, 1986.

We are not the first court of appeals to...