Rollison v. Biggs

Decision Date29 June 1983
Docket NumberCiv. A. No. 80-165.
Citation567 F. Supp. 964
PartiesPaul ROLLISON, Jr., et al., Plaintiffs, v. Carroll W. BIGGS, et al., Defendants.
CourtU.S. District Court — District of Delaware

Douglas A. Shachtman, Wilmington, Del., for plaintiffs.

Barry M. Willoughby, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for local defendants.

Regina M. Mullen, Dept. of Justice, Wilmington, Del., for state defendants.


MURRAY M. SCHWARTZ, District Judge.

On April 14, 1980, plaintiffs, Paul Rollison, Jr. and Wanda Rollison, instituted this action on behalf of their minor son, Kyle Rollison, a handicapped child. The plaintiffs sought tuition reimbursement and other relief from the defendants1 alleging violations of the following: the Education for All Handicapped Children Act ("EAHCA"), 20 U.S.C. § 1401 et seq.; the Rehabilitation Act, 29 U.S.C. § 794 et seq.; the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq.; the Civil Rights Act, 42 U.S.C. § 1983; the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution; a provision of the Delaware Code dealing with education of handicapped persons, 14 Del.C. § 3124; and a provision of the Delaware Administrative Procedure Act, 29 Del. C. § 10128.2

The litigation proceeded for some eighteen months without significant court involvement until settlement during the course of briefing of plaintiffs' motion for summary judgment. On May 3, 1982 plaintiffs filed a motion for attorney's fees as a prevailing party. An evidentiary hearing was held on October 6 and 7, 1982 and the parties submitted post-hearing affidavits and proposed findings of fact and conclusions of law. For the reasons that follow, the motion for attorney's fees will be denied.

I. Factual and Statutory Background

The EAHCA is a funding statute whereby states receive federal funds to assist them in providing educational services for handicapped children.3 Pursuant to the EAHCA, any state educational agency or unit receiving federal funds must establish and maintain procedures whereby handicapped children and their parents may protect their rights to a "free appropriate public education." 20 U.S.C. § 1415(d).

Kyle, a minor child with learning disabilities,4 attended the Pilot School, a private school designed to teach and treat handicapped children. During the school years 1977-78 and 1978-79 the State Board of Education paid Kyle's tuition and travel expenses. Payment during 1977-78 resulted from a decision of Hearing Examiner Dr. S. Reed Payne reversing a decision of the Mt. Pleasant School District denying tuition and travel expense reimbursement. Dkt. 8, at 114-19 (Hearing Examiner Decision). Dr. Payne ordered the Mt. Pleasant School District to develop, with the staff of the Pilot School, an appropriate individualized education plan ("IEP"), id. at 118, as required by the EAHCA. 20 U.S.C. §§ 1401(19), 1414(a)(5). Allegedly, an IEP was not developed. On April 9, 1979 plaintiffs contacted defendant Biggs seeking the continuation of private placement tuition at the Pilot School for the 1979-80 school year. Dkt. 8, at 64 (Letter from Paul M. Rollison, Jr. to Carroll W. Biggs). Such a request was to be considered initially by the Area Identification Placement Review Dismissal Committee ("IPRD"). Due to the fault of all parties, the IPRD meeting was not completed in a timely manner so as to receive State Board approval and consequent prompt action by the State Department of Public Instruction. When the IPRD meeting was held, the committee rejected the plaintiffs' application and decided to change Kyle's placement to the public Faulk Road School — a totally segregated facility for handicapped children. Dkt. 8, at 137-38 (IPRD Staff Conference Minutes, September 14, 1979).

Section 1415(b)(1)(E) requires the state to provide "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." Upon receipt of such a complaint, the parents must be accorded an "impartial due process hearing" by the local agency. 20 U.S.C. § 1415(b)(2). After such a hearing, the parents may seek review of the local agency's decision by an impartial state level review officer. 20 U.S.C. § 1415(c). Finally, judicial review is guaranteed to any party aggrieved by the final decision of the state level agency. 20 U.S.C. § 1415(e)(2).

The Rollisons pursued their interests through the above procedure. The local hearing officer denied the plaintiffs' request that Kyle be declared eligible for financial aid. The Rollisons appealed this decision and the state level review officer, an employee of the State Department of Public Instruction, affirmed the decision of the hearing officer. Dkt. 8, at 162 (State Level Review Officer's Report).

Having exhausted their administrative remedies, the plaintiffs filed the instant action. During the briefing on plaintiffs' motion for summary judgment in May of 1981, the parties reached a settlement whereby the State Defendants would reimburse plaintiffs for tuition and transportation costs for the 1979-80 school year. The State Defendants agreed to settle the action due to the holdings in Grymes v. Madden (Grymes II), No. 78-105 (D.Del. Jan. 7, 1981), aff'd, 672 F.2d 321 (3d Cir.1982). In Grymes II the court held that the state must provide interim funding pursuant to section 1415(e) of the EAHCA for private placement during the pendency of the litigation regardless of the merits of the underlying claim, and that the use of state level review officers employed by the education agency violated the EAHCA requirement that plaintiffs be afforded a hearing before an impartial hearing officer.

In March 1982 a Stipulation and Order was entered dismissing the action with prejudice as to every claim against both the State Defendants and Local Defendants except claims for attorney's fees. Dkt. 34. Under the terms of the stipulation, the State Defendants agreed to pay plaintiffs the sum of $4829 plus 6 percent annual interest from the filing of the complaint. Id. Local Defendants agreed to pay nothing to the plaintiffs. At this juncture, plaintiffs seek in excess of $40,000 for attorney's fees including fees incurred with respect to the litigation of the current motion for attorney's fees. Both the State Defendants and the Local Defendants oppose the motion on grounds which fall into three basic categories: first, there is no statutory basis for the award of fees; second, even if the Court could award fees, the plaintiffs are not entitled to fees because they are not prevailing parties; and third, even if the plaintiffs are prevailing parties, the requested fees are subject to substantial reduction.

II. Discussion

While plaintiffs raised a plethora of statutory and constitutional grounds as a basis for relief in their complaint, the arguments asserted in support of their summary judgment motion focused on the EAHCA. Dkt. 17, at 7-34. Substantial reliance was placed upon section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("section 504"). Only tangential mention of other statutes and constitutional provisions was made. Furthermore, the briefing on the motion for attorney's fees has focused on the EAHCA, section 504, and the Civil Rights Act, 42 U.S.C. § 1983 ("section 1983"), which encompasses statutory and constitutional provisions. While there has been significant judicial inspection of the interplay of these three grounds in the recent past, on the whole, the case law is mired in confusion. Finding no binding precedent from the Supreme Court or the Court of Appeals for the Third Circuit, the Court undertakes the ensuing foray into the morass.


Pursuant to the so-called "American Rule," attorney's fees are not recoverable unless a specific statute or enforceable contract provides for such a recovery. Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Summit Valley Industries, Inc. v. Local 112, United Brotherhood of Carpenters and Joiners of America, 456 U.S. 717, 102 S.Ct. 2112, 72 L.Ed.2d 511 (1982); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The EAHCA itself does not provide for an award of attorney's fees. See Smith v. Cumberland School Committee, 703 F.2d 4, 7 (1st Cir.1983); Hymes v. Harnett County Board of Education, 664 F.2d 410, 412 (4th Cir.1981). Consequently, the plaintiffs may not recover attorney's fees under the EAHCA and must, therefore look elsewhere.

B. The Rehabilitation Act

The Rollison allege that they are entitled to attorney's fees pursuant to section 505(b) of the Rehabilitation Act. 29 U.S.C. § 794a(b) ("section 505(b)").5 Section 505(b) allows the grant of attorney's fees whenever a party presents a substantial section 5046 claim even if a settlement takes place prior to adjudication. United Handicapped Federation v. Andre, 622 F.2d 342, 345-46 (8th Cir.1980). The question for resolution is whether section 504 creates a substantial claim in this case.

Attorney's fees under section 505(b) could only be available if section 504 creates a private cause of action. The existence of such a right is questionable.7 While the Third Circuit Court of Appeals has implied a private cause of action pursuant to section 504, see Tokarcik v. Forest Hills School District, 665 F.2d 443, 449 n. 8 (3d Cir.1981), cert. denied, ___ U.S. ___, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982); NAACP v. Medical Center, Inc., 599 F.2d 1247, 1258-59 (3d Cir.1979), recent dicta by the Supreme Court suggests otherwise. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 27, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981); see also Smith v. Cumberland School Committee, 703 F.2d at 9. But cf. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (find...

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