Robert M. v. Benton, s. 81-1594

• Decision Date: 24 February 1982
• Docket Number: Nos. 81-1594,81-1638,s. 81-1594
• Parties: ROBERT M., as Next Friend of Renee K., Appellant, v. Dr. Robert D. BENTON, individually and as State Superintendent of Public Instruction; J. Frank Vance, as State Director of the Division of Special Education; Dr. Marilyn Marsh, as Director of Special Education, Area Education Agency 12; Donald Southwick, individually and as Superintendent of West Monona Community School District, Appellees. ROBERT M., as Next Friend of Renee K., Appellee, v. Dr. Robert D. BENTON, individually and as State Superintendent of Public Instruction; and J. Frank Vance, as State Director of the Division of Special Education, Appellants, Dr. Marilyn Marsh, as Director of Special Education, Area Education Agency 12; Donald Southwick, individually and as Superintendent of West Monona Community School District.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1104

671 F.2d 1104

ROBERT M., as Next Friend of Renee K., Appellant, v. Dr. Robert D. BENTON, individually and as State

Superintendent of Public Instruction; J. Frank Vance, as

State Director of the Division of Special Education; Dr.

Marilyn Marsh, as Director of Special Education, Area

Education Agency 12; Donald Southwick, individually and as

Superintendent of West Monona Community School District, Appellees.

ROBERT M., as Next Friend of Renee K., Appellee, v. Dr. Robert D. BENTON, individually and as State

Superintendent of Public Instruction; and J. Frank

Vance, as State Director of the Division

of Special Education, Appellants,

Dr. Marilyn Marsh, as Director of Special Education, Area

Education Agency 12; Donald Southwick,

individually and as Superintendent of

West Monona Community School District.

Nos. 81-1594, 81-1638.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 18, 1981.

Decided Feb. 24, 1982.

Martin Ozga, Legal Services Corp. of Iowa, Des Moines, Iowa, for robert M.

Thomas J. Miller, Atty. Gen., Howard O. Hagen, Asst. Atty. Gen., argued, Des Moines, Iowa, for appellee-cross appellant.

Before LAY, Chief Judge, and HENLEY and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Plaintiff appeals a District Court order ¹ awarding him $5,052 in attorney's fees, rather than the $8,740 which he requested. Defendant cross-appeals, contending that an award of attorney's fees is not recoverable in this particular case. Believing that fees are recoverable because the complaint contained a nonfrivolous claim based on 42 U.S.C. § 1983, and that the District Court did not abuse its discretion in fixing the amount of the fee, we affirm.

Renee K. has been diagnosed as a mildly mentally-retarded child. In 1978, disputes arose between Renee's parents, Mr. and Mrs. Robert M., and West Monona Community School District concerning educational placement for Renee. The school district recommended that she be placed in special education classes. Mr. M. appealed this recommendation to the State Department of Public Instruction, and pursuant to Iowa law a due-process hearing was held. Dr. Robert Benton, then State Superintendent of Public Instruction, presided. A decision was issued denying the plaintiff's claims, and an application for rehearing was denied.

Thereafter Mr. M. filed suit, seeking declaratory and injunctive relief pursuant to the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq. (EAHCA); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983; and the Due Process and Equal Protection Clauses of the Fourteenth Amendment (Designated Record p. 1, P I). Cross-motions for partial summary judgment were filed concerning the propriety of Dr. Benton's sitting as a hearing officer in the due-process hearing. The District Court sustained plaintiff's motion for partial summary judgment and denied defendant's motion, holding that 20 U.S.C. § 1415(b)(2) barred Dr. Benton from presiding. It remanded the matter to the state agency for a new hearing, Robert M. v. Benton, No. C-79-4007 (N.D.Iowa, Aug. 13, 1979). Defendant Benton appealed that order, and this Court remanded, urging the parties and the District Court to address jurisdictional and mootness issues. Robert M. v. Benton, 622 F.2d 370 (8th Cir. 1980). On remand the District Court again granted plaintiff's motion for partial summary judgment, found that the case was not moot, and made the express determination necessary for entry of judgment pursuant to Fed.R.Civ.P. 54(b). Robert M. v. Benton, No. C-79-4007 (N.D.Iowa, Sept. 24, 1980). This Court affirmed. Robert M. v. Benton, 634 F.2d 1139 (8th Cir. 1980).

Subsequently the plaintiff renewed his motion for an award of attorney's fees and costs. Defendants resisted, and a hearing was held. Plaintiff submitted a time sheet which showed that counsel spent 218.5 hours on the case and asked that he be compensated at $40.00 an hour, for a total of $8,740.00. The Court held that attorney's fees were appropriate, but that 50 hours of the time listed would not have been spent if counsel had been an experienced attorney, and that $30.00 an hour was a fair fee given the circumstances of this case. It awarded plaintiff $5,052.00.

I.

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides in relevant part:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, * * * 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.

Defendants contend that plaintiff cannot recover attorney's fees because EAHCA does not provide for them. This statute is the sole basis for the relief that plaintiff has ultimately won. Neither the District Court, nor this Court on appeal, found it necessary to reach claims raised by plaintiff under the Rehabilitation Act, 42 U.S.C. § 1983, or the Constitution itself. Defendants cite Middlesex County Sewerage Authority v. National Sea Clammers Association, --- U.S. ----, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), and Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), for the proposition that when a statute's remedies are sufficiently comprehensive they may preclude a 42 U.S.C. § 1983 action, and the ensuing right to attorney's fees under 42 U.S.C. § 1988. After the oral argument in this case, this Court, in Miener v. State of Missouri, --- F.2d ----, No. 80-1971 (8th Cir. February 4, 1982), did hold that EAHCA creates a comprehensive remedial scheme, excluding a private right of action for damages, at least in most cases. We found it unnecessary to decide whether a § 1983 cause of action might be premised on EAHCA. Nor is it necessary to reach that question here. For even if EAHCA cannot be the basis for a § 1983 claim, it does not follow that plaintiff is entitled to no fee award in this case.

Here, the complaint contained nonfrivolous claims under § 1983 based on the Fourteenth Amendment as well as on EAHCA. These claims were in part bottomed on the same theory as plaintiff's successful EAHCA claim-that an employee of the state's education agency could not be truly impartial, because as hearing officer he would be acting, in effect, as judge in his own cause. Substantially the same effort was expended by plaintiff's attorney as would have been required if the complaint had pleaded only a constitutional theory. The theory on which plaintiff did prevail (EAHCA) is so intertwined with those (§ 1983, the Constitution, and the Rehabilitation Act) that the courts did not need to reach, that it is simply impractical to segregate the time spent by the attorney and denominate a certain amount of it as exclusively related to EAHCA and therefore ineligible for a fee award. In this situation, attorney's fees are awardable to plaintiff, even though the case had been decided on grounds for which an award of fees is normally improper. See Oldham v. Ehrlich, 617 F.2d 163 (8th Cir. 1980); Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978); Kimbrough v. Arkansas Activities Association, 574 F.2d 423 (8th Cir. 1978). ² "Attorney's fees for a claim which is reasonably calculated to advance a client's interests should not ... be denied solely because that claim did not provide the precise basis for the relief granted." Brown v. Bathke, supra, 588 F.2d at 637. ³ (Footnote omitted).

II.

Counsel for the plaintiff contends that the District Court abused its discretion by awarding him only $5,052.00 in attorney's fees. He filed time sheets indicating that he expended 218.5 hours on this case, and requested that he be compensated at $40.00 an hour, totaling $8,740.00 in attorney's fees. There is, however, no absolute gauge of what constitutes proper attorney's fees. "(I)n determining attorney's...