Rollison v. Biggs

• Decision Date: 22 May 1987
• Docket Number: Civ. A. No. 80-165 MMS.
• Citation: 656 F. Supp. 1204
• Parties: Paul ROLLISON, Jr., et al., Plaintiffs, v. Carroll W. BIGGS, et al., Defendants.
• Court: U.S. District Court — District of Delaware

656 F. Supp. 1204

Paul ROLLISON, Jr., et al., Plaintiffs, v. Carroll W. BIGGS, et al., Defendants.

Civ. A. No. 80-165 MMS.

United States District Court, D. Delaware.

April 2, 1987.

Reargument Denied May 22, 1987.

Douglas A. Shachtman, and Brian J. Hartman, Esq., of Community Legal Aid Society, Inc., Wilmington, Del., for plaintiffs.

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

Regina M. Mullen, and Marcia Rees, of the Dept. of Justice, Wilmington, Del., for state defendants.

MURRAY M. SCHWARTZ, Chief Judge.

In Rollison v. Biggs, 567 F.Supp. 964 (D.Del.1983) ("Rollison I"), this Court denied plaintiffs' motion for attorneys' fees. On October 21, 1986, the parties stipulated that the judgment denying attorneys' fees would be vacated, and the Court so ordered. Plaintiffs thereafter renewed their fee petition. For the reasons that follow, the Court will grant attorneys' fees in the amount of $77,915.50.

I. FACTS

The facts underlying this request for attorneys' fees are set forth in detail in Rollison I, 567 F.Supp. at 966-67. Generally, the request arises from an action brought in 1980 by plaintiffs Paul and Wanda Rollison on behalf of their son, Kyle Rollison, a handicapped child. The Rollisons sought tuition reimbursement and other relief from the defendants,¹ alleging violations of, inter alia, the Education for All Handicapped Children Act ("EAHCA"), 20 U.S.C. §§ 1401 et seq.; section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and the Civil Rights Act, 42 U.S.C. § 1983.

Kyle, a minor child with learning disabilities, 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. In 1979, the Rollisons contacted defendant Biggs seeking the continuation of private placement tuition at the Pilot School for the 1979-80 school year. Subsequently, this application was rejected and Kyle's placement was changed to the public Foulk Road School, a totally segregated facility for handicapped children.

Pursuant to section 1415 of the EAHCA, 20 U.S.C. § 1415, the Rollisons sought review of the decision to deny financial aid to Kyle. First, section 1415(b)(2) requires the local agency to accord parents an "impartial due process hearing" on their complaint. 20 U.S.C. § 1415(b)(2). The local hearing officer denied the Rollisons' request for financial aid. Second, section 1415(c) permits parents to seek review of the local agency's decision by an impartial state level review officer. 20 U.S.C. § 1415(c). The state level review officer, an employee of the State Department of Public Instruction, affirmed the local agency's decision. Finally, section 1415(e)(2) guarantees judicial review to any party aggrieved by the final decision of the state level agency. 20 U.S.C. § 1415(e)(2). Having exhausted their administrative remedies, the Rollisons filed suit in this Court.

During the briefing of plaintiffs' motion for summary judgment in May of 1981, the parties settled and agreed that the state defendants would reimburse the Rollisons for tuition and transportation costs for the 1979-80 school year. The settlement was prompted by the decision in Grymes v. Madden, C.A. No. 78-105 (D.Del. Jan. 7, 1981), aff'd, 672 F.2d 321 (3d Cir.1982) ("Grymes II"). In Grymes II, the Court held that the State must provide interim funding pursuant to section 1415(e) of the EAHCA, 20 U.S.C. § 1415(e), for private placement during the pendency of litigation regardless of the merits of the underlying claims, and that the use of state level review officers employed by the education agency violates the EAHCA requirement that hearing officers be impartial.

On March 2, 1982, a stipulation and order was entered dismissing the action with prejudice as to every claim except claims for attorneys' fees. The state defendants agreed to pay the Rollisons $4,829 plus six percent annual interest from the filing of the complaint. The local defendants did not agree to pay anything to the Rollisons. Plaintiffs then filed for attorneys' fees in excess of $40,000, including fees incurred as a result of litigating the fee petition.

Because the EAHCA did not provide for awards of attorneys' fees, plaintiffs relied exclusively on section 505(b) of the Rehabilitation Act, 29 U.S.C. § 794a(b), and the attorneys' fees provision of the Civil Rights Act, 42 U.S.C. § 1988. On June 29, 1983, this Court denied the motion for fees. The Court first held that because plaintiffs sought no relief that could be granted by section 504 and not by the EAHCA, attorneys' fees were unavailable under section 505(b). Second, the Court held that no statutory cause of action existed under section 1983 and that attorneys' fees under section 1988 were also unavailable for a constitutional claim brought pursuant to section 1983, again because plaintiffs sought no relief that could not be granted by the EAHCA. Rollison I, 567 F.Supp. at 970-73.

On July 5, 1984, while Rollison I was pending on appeal, the Supreme Court decided Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The Court held that attorneys' fees were unavailable under section 505(b) and section 1988 in a special education case, taking the same position as this Court had with respect to the preemptive effect of the EAHCA. In light of Smith, the Third Circuit Court of Appeals summarily affirmed Rollison I, 749 F.2d 27 (3d Cir.1984).

The law remained settled until, on August 5, 1986, Congress enacted the Handicapped Children's Protection Act of 1986 ("HCPA"), Pub.L. No. 99-372, 100 Stat. 796. Generally, the HCPA changes prior law in two ways. First, it amends the EAHCA to provide for attorneys' fees. Id. § 2, 100 Stat. 796, 796 (to be codified at 20 U.S.C. § 1415(e)(4)). Second, it vitiates the Supreme Court's Smith decision by declaring that the EAHCA does not restrict or limit the rights, procedures, and remedies available under the Constitution, the Rehabilitation Act, or other federal statutes. Id. § 3, 100 Stat. 796, 797 (to be codified at 20 U.S.C. § 1415(f)). Section 2 of the HCPA, amending the EAHCA to provide for attorneys' fees, was made retroactive to cases brought after July 3, 1984 and to cases brought prior to July 4, 1984 that were pending on July 4, 1984. Id. § 5, 100 Stat. 796, 798. Section 3 of the HCPA, providing that the EAHCA is not the exclusive remedy in a special education case, is not made expressly retroactive.

On October 21, 1986, the parties filed a stipulation and order stating that "the Order of June 29, 1983 denying Plaintiff's attorneys fees shall be, and hereby is, vacated."² Docket Item 89. The stipulation was prompted by the parties' recognition that Rollison I was pending on July 1, 1984. Following the submission of briefs by all parties and oral argument, the parties stipulated to the hours spent by plaintiffs' counsel at each stage of the litigation and to the applicable rates.³ Therefore, no additional evidentiary hearing was held. Defendants, however, raise a number of legal issues with respect to an award of attorneys' fees.

II. DISCUSSION

Defendants challenge plaintiffs' eligibility for attorneys' fees in a number of respects. First, defendants argue that section 5 of the HCPA, which makes retroactive the amendment to the EAHCA providing for attorneys' fees, is unconstitutional. Second, defendants contend that plaintiffs are not entitled to recover fees for litigating the fee petition, because section 3 of the HCPA is not made expressly retroactive. The declaration that the EAHCA is not preemptive in a special education case operates only prospectively, the argument goes, and plaintiffs thus were not rendered prevailing parties in Rollison I. Third, defendants object that plaintiffs' fee request is out of proportion with the Rollisons' recovery in the settlement. Fourth, the local defendants argue that they are not responsible for attorneys' fees because the plaintiffs did not prevail against them. Finally, the parties disagree on whether a delay factor should be applied to increase the fee award lodestar. These issues will be considered seriatim.

A. Constitutionality of Section 5 of the HCPA

Section 5 of the HCPA provides that "the amendment made by section 2 shall apply with respect to actions or proceedings brought under the EAHCA after July 3, 1984, and actions or proceedings brought prior to July 4, 1984, under the EAHCA which were pending on July 4, 1984." HCPA, Pub.L. No. 99-372, § 5, 100 Stat. 796, 798 (1986). Defendants' principal constitutional objection is that this retroactivity provision exceeds Congress' spending power because it impairs the "contract" implicit in the EAHCA, a federal-state cooperative grant program. In support of this argument, defendants cite Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), and Bennett v. New Jersey, 470 U.S. 632, 105 S.Ct. 1555, 84 L.Ed.2d 572 (1985).

In Pennhurst, the Court stated:

Turning to Congress' power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. Unlike legislation enacted under § 5 of the fourteenth amendment, however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congr

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