Max M. v. New Trier High School Dist. No. 203

• Decision Date: 04 November 1988
• Docket Number: No. 88-1857,88-1857
• Citation: 859 F.2d 1297
• Parties: , 49 Ed. Law Rep. 1125 MAX M. and his parents Mr. and Mrs. M., Plaintiffs-Appellees, v. NEW TRIER HIGH SCHOOL DISTRICT NO. 203, Defendant-Appellant, Illinois State Board of Education, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1297

859 F.2d 1297

12 Fed.R.Serv.3d 419, 49 Ed. Law Rep. 1125

MAX M. and his parents Mr. and Mrs. M., Plaintiffs-Appellees, v. NEW TRIER HIGH SCHOOL DISTRICT NO. 203, Defendant-Appellant, Illinois State Board of Education, et al., Defendants-Appellees.

No. 88-1857.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 1988.

Decided Oct. 19, 1988.

As Amended Nov. 4, 1988.

John A. Relias, Vedder Price Kaufman & Kammholz, Chicago, Ill., for defendant-appellant.

Deborah L. Ahlstrand, Asst. Atty. Gen., Chicago, Ill., Matthew D. Cohen, Skokie, Ill., for plaintiffs-appellees.

Before WOOD Jr. and EASTERBROOK, Circuit Judges, and GORDON, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

This case, like Tonya K. v. Board of Education, 847 F.2d 1243 (7th Cir.1988), involves a claim for attorneys' fees under a retroactive law, the Handicapped Children's Protection Act of 1986, 100 Stat. 796 (the Amendments). This statute made attorneys' fees available to litigants prevailing under the Education for All Handicapped Children Act, 20 U.S.C. Secs. 1411-20, if the cases were pending on July 4, 1984. See 20 U.S.C. Sec. 1415(e)(4)(B) (1986). We held in Tonya K. that the Amendments apply to a case settled before July 4, 1984, in which only a request for attorneys' fees was pending on that date--and that this application is constitutional. Today's case was pending on July 4, 1984, and not resolved on the merits until March 1986. See Max M. v. Illinois State Board of Education, 629 F.Supp. 1504 (N.D.Ill.1986), the last in a line of five substantive decisions. After the Amendments were enacted, the plaintiffs sought attorneys' fees, and the district court awarded some $25,000. 684 F.Supp. 514 (N.D.Ill.1988). The school district contends that the Amendments are inapplicable and unconstitutional, that the request for fees was untimely, and that the award is improvident. None of these contentions is persuasive.

Tonya K. held, 847 F.2d at 1247-48, that the Amendments do not impermissibly affect the "vested rights" of school districts. The settlement in Tonya K. reserved questions about fees, and the plaintiffs dismissed their claim for fees before the court could reject it. No rights, we held, became fixed, so the court avoided the "harder problem" that would arise if "the plaintiffs had pressed their claim ... and lost" (id. at 1248) before Congress enacted the Amendments. The school district tells us that this case presents the harder problem. Max M.'s complaint requests attorneys' fees, and he did not get them. Therefore the school district's right to be free of fees "vested" before Congress passed the Amendments.

Arguments based on "vested rights" are difficult to handle because the legal system contains rules for "vesting" that give different weights to different kinds of decisions. The dispute frequently is not so much whether Congress "takes" property by altering "vested" rights as whether entitlements were settled so firmly as to become property. A claim under a given statute, litigated to the hilt and decided on the merits, yields the strongest contention that the disposition creates rights that may not be altered (without compensation) by later legislation. A claim withdrawn because it is likely to lose under existing law creates weaker entitlements--the (non) disposition may be res judicata on the ground that omitted legal arguments concerning the same claim for relief are disposed of with arguments that have been pressed, see Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1877), but this aspect of claim preclusion is not itself "property". We suppose that a legislature could alter the doctrines of merger and bar in civil cases. A claim never made at all--because the statute that might support it had not been passed--offers the weakest argument that the court has created property rights that thwart later legislation by disposing of existing claims according to existing rules.

Max M. raised in the complaint a claim for attorneys' fees. He did not press it, and the district court did not address this claim--for the sufficient reason that there was no legal basis for an award of fees until Congress passed the Amendments in August 1986. Tonya K. was in much the same position: she sought fees, but the court did not rule on the request before August 1986. To pass by a request in silence is not to put it beyond recall by subsequent legislation. Not, that is, unless doctrines of merger and bar are themselves required by the Constitution. No case of which we are aware holds that they are. Not even the Double Jeopardy Clause of the fifth amendment, the only constitutional reference to principles of preclusion, prevents litigation in separate trials of multiple claims arising out of the same circumstances. The Court has not adopted the "same transaction" approach proposed by Justice Brennan, see Ashe v. Swenson, 397 U.S. 436, 453-54, 90 S.Ct. 1189, 1199-1200, 25 L.Ed.2d 469 (1970) (Brennan, J., concurring). It would be passing strange to infer, from constitutional language that is not concerned with preclusion, rules of merger and bar more stringent than those in the Double Jeopardy Clause. Max M.'s claim for fees therefore is no different in constitutional terms from Tonya K.'s: in each case the court wrapped up the litigation without addressing questions concerning fees. Stepping past an issue in silence would preclude later litigation under the ordinary principles of the common law of judgments, but the Constitution does not block Congress from altering these, to allow an initial judicial decision, when the legislature believes this to be appropriate.

The school district raises a second constitutional argument: that the Amendments exceed Congress's power under the Spending Clause of the Constitution. The school district devotes to this contention less than 1 1/2 pages of its brief. Assessing the constitutionality of a statute is the most delicate task of a federal court. A litigant cannot require constitutional adjudication by incanting magic spells or pointing a finger at a particular clause. We decline to consider constitutional arguments that are offered undigested. See Hospital Corp. of America v. FTC, 807 F.2d 1381, 1392-93 (7th Cir.1986). The school district's brief presents eleven distinct legal issues, some with subparts. This scattershot approach is the antithesis of sound advocacy. Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983). Such a brief sends the message that counsel does not think much of any of the claims raised--or perhaps does not believe the court able to separate good arguments from bad. Whatever the reason, the brief does not raise a serious challenge to the constitutionality of the Amendments or supply the background necessary for thoughtful consideration. More, despite 28 U.S.C. Sec. 2403(a) and Fed.R.Civ.P. 24(c), the district court did not give notice to the Attorney General that the constitutionality of an Act of Congress had been drawn into question, and the federal government did not learn of this litigation until counsel for the school district sent a letter to the Attorney General on July 15, 1988, after the briefs on appeal had been filed, informing him that a constitutional challenge had been presented. Therefore, without suggesting anything one way or the other about the constitutionality of the Amendments, we decline the school district's invitation to address issues concerning the Spending Clause.

The lead-off issue in the school district's brief, and the one most stressed at oral argument, is the contention that the M.s' request for fees was filed too late. Rule 46 of the Local Rules of the district court gives prevailing parties 90 days after final judgment within which to seek attorneys' fees. Judgment was entered on March 20, 1986; a motion for reconsideration was denied on April 22, 1986; the request was not filed within 90 days. It was not filed, in fact, until August 1987. So it is too late, the school district contends. Since the Amendments themselves were not enacted until August 1986, it is difficult to see how claims they create could have been raised within 90 days of April 22, 1986. The district court concluded that Local Rule 46 is inapplicable because of this, and that the governing standard therefore is Fed.R.Civ.P. 54(d), which requires motions to be filed within a reasonable time. Spray-Rite Service Corp. v. Monsanto Co., 684 F.2d 1226, 1248 (7th Cir.1982), affirmed on other grounds, 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984).

The school district concedes that the M.s hardly could have been expected to seek fees by July 1986, a month before the Amendments came into force. It therefore tries to reconstruct Local Rule 46, so...