Smith v. Cumberland School Committee

• Citation: 703 F.2d 4
• Decision Date: 24 March 1983
• Docket Number: No. 82-1524,82-1524
• Parties: 10 Ed. Law Rep. 43 Thomas F. SMITH, Jr., et al., Plaintiffs, Appellees, v. CUMBERLAND SCHOOL COMMITTEE, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 4

703 F.2d 4

10 Ed. Law Rep. 43

Thomas F. SMITH, Jr., et al., Plaintiffs, Appellees, v. CUMBERLAND SCHOOL COMMITTEE, et al., Defendants, Appellants.

No. 82-1524.

United States Court of Appeals, First Circuit.

Argued Jan. 3, 1983.

Decided March 24, 1983.

Forrest Avila, Providence, R.I., for defendants, appellants.

George M. Prescott, Lincoln, R.I., with whom Jonathan F. Oster, and Oster, Groff & Prescott, Lincoln, R.I., were on brief, for plaintiffs, appellees.

Before ALDRICH, CAMPBELL and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal from an award of attorneys' fees in an action brought to secure a free appropriate public education for a handicapped child. Plaintiff Thomas F. Smith, III is a handicapped child suffering from cerebral palsy and a variety of physical and emotional handicaps. Since December 1974 he has been enrolled in the Day Hospital Program at Emma Pendelton Bradley Hospital, which all parties agree provides him with an appropriate education. The Cumberland School Committee, Thomas's local education agency, 20 U.S.C. Sec. 1401(8), partially funded his tuition at Bradley for one year. In November 1976, however, the school committee informed Thomas's parents, who are also plaintiffs in this action, that it would cease paying for Thomas's tuition because it believed that the Rhode Island Department of Mental Health, Retardation and Hospitals (MHRH) was the agency responsible for financing Thomas's education.

On November 26, 1976 plaintiffs commenced the present action in the United States District Court for the District of Rhode Island. The complaint as amended charged the Cumberland School Committee with violating the fourteenth amendment to the Constitution, the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. Secs. 1401 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, by denying Thomas a free appropriate education, discriminating against him because he was emotionally disturbed, and refusing to grant him an impartial hearing prior to the termination of tuition payments. ¹ On December 22, 1976 the district court issued a preliminary injunction requiring the school committee to maintain Thomas at Bradley while plaintiffs exhausted their administrative remedies. On January 20, 1977 a hearing was held before the school committee. The school committee affirmed its prior decision. The plaintiffs then appealed to the Rhode Island Commissioner of Education, one of the appellants here. The Associate Commissioner of Education, the other appellant here, scheduled a hearing for November 2, 1977. The plaintiffs then moved that the Associate Commissioner recuse himself and provide an impartial hearing officer. This motion was denied. Following the hearing, the Associate Commissioner affirmed the school committee's decision. Plaintiffs then amended their complaint to name the Commissioner and Associate Commissioner as defendants.

On December 22, 1978 the district court decided that the controversy before it might be resolved by a determination as to which agency was responsible under Rhode Island law for Thomas's education. Accordingly it certified this issue to the Rhode Island Supreme Court, ² which ruled that the school committee, and not the MHRH, was responsible under state law for paying for Thomas's education. Smith v. Cumberland School Committee, R.I., 415 A.2d 168 (1980). The Rhode Island Supreme Court stated that a contrary result risked placing the state's law in conflict with the federal EAHCA.

After the Rhode Island Supreme Court rendered its decision, the district court found that plaintiffs won all they sought under state law and granted a permanent injunction. Federal statutory and constitutional issues were not reached. We affirmed the district court's judgment in an unpublished decision.

Plaintiffs then sought attorneys' fees. An agreement was reached with the school committee whereby the committee paid $8,000 in attorneys' fees for the costs plaintiffs incurred in securing the preliminary injunction and arguing before the school committee. The district court decided the question of attorneys' fees with regard to the other defendants. The district court, relying on its decision in Turillo v. Tyson, 535 F.Supp. 577 (D.R.I.1982), found that plaintiffs were entitled to fees under 42 U.S.C. Sec. 1988 because they had stated constitutional section 1983 claims, and under 29 U.S.C. Sec. 794a(b) because they had alleged violation of the Rehabilitation Act. The district court further reasoned that because the plaintiffs were required by the EAHCA to exhaust their administrative remedies, and because the district court refused to hear the federal claims before the state claims were decided by the Rhode Island Supreme Court, the plaintiffs were entitled to attorneys' fees for all of the work done before the state agencies and the state court. See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980); Bartholomew v. Watson, 665 F.2d 910 (9th Cir.1982). Fees of $32,109 were awarded. It is from this judgment that the Commissioner and Associate Commissioner appeal.

Appellants raise three issues on appeal. First, they argue that neither section 1988 nor section 794a(b) provide for fees in this case because it was essentially brought under the EAHCA which does not provide for attorneys' fees. Second, they argue that even if fees are available, the district court should not have compensated plaintiffs for the attorneys' work before the state agencies and state court. Third, they argue that the district court erred in accepting an attorney's affidavit rather than original time sheets as evidence of the hours the attorney spent on the case. Because we decide that attorneys' fees are not available here at all, we only discuss that issue.

A. Section 1988

Under what is labelled the American Rule, attorneys' fees are only available as a general matter when statutory authority so provides. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Since the narrow exceptions under the American Rule are not applicable here, our task is to determine whether or not there is statutory authority for awarding attorneys' fees in the present case.

This action and the relief granted fall within the parameters of EAHCA, a federal statute which establishes a comprehensive federal-state scheme for the provision of special education to handicapped children. The complaint alleged that the school committee's refusal to fund Thomas's placement at Bradley denied him a free appropriate public education as defined by the EAHCA. 20 U.S.C. Sec. 1401(18). The complaint also claimed that the hearings provided by the Rhode Island officials did not comply with certain due process provisions imposed by the EAHCA upon participating states because they were not impartial. 20 U.S.C. Sec. 1415(c). And ultimately it was to the EAHCA that the Rhode Island Supreme Court looked in determining that state law required the school committee to fund Thomas's placement at Bradley. R.I. 415 A.2d at 172. Not only was EAHCA the foundation of plaintiffs' victory, its provisions encompassed all the relief for which plaintiffs now seek attorneys' fees, i.e., all relief beyond the preliminary injunction. See footnote 3, infra.

Yet while EAHCA provides expressly for the bringing of private enforcement actions such as this one, 20 U.S.C. Sec. 1415(e), it contains no provision for attorneys' fees. Hymes v. Harnett County Board of Education, 664 F.2d 410 (4th Cir.1982). For authority to award fees in the instant case, the district court had to turn to other statutes, primarily to 42 U.S.C. Sec. 1988 which authorizes courts to award attorneys' fees to prevailing parties in actions brought under 42 U.S.C. Sec. 1983. In so doing, the district court relied upon authorities holding that fees may be awarded under section 1988 when the claim upon which the plaintiff actually prevailed was accompanied by a "substantial," though undecided, section 1983 claim arising from the same nucleus of facts. Lund v. Affleck, 587 F.2d 75, 77 (1st Cir.1978). See, e.g., Luria Bros. & Co., Inc. v. Allen, 672 F.2d 347, 357 (3d Cir.1982); Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir.1981). Here, plaintiffs' section 1983 claims were arguably "substantial" in that, though weak, they would at least have supported federal jurisdiction. See Maher v. Gagne, 448 U.S. 122, 127, 100 S.Ct. 2570, 2573, 65 L.Ed.2d 653 (1980), citing Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Prior to enactment of EAHCA in 1975, one district court had held that the equal protection clause of the Constitution required school districts to provide special education to handicapped children. See Mills v. Board of Education, 348 F.Supp. 866 (D.D.C.1972). And the Eighth Circuit has held that due process claims akin to plaintiffs' were sufficiently colorable to sustain a fees award under section 1988. Robert M. v. Benton, 671 F.2d 1104, 1106 (8th Cir.1982).

But even if plaintiffs' section 1983 claims qualify as "substantial," we do not think that fact alone created authority for fees in a case bottomed so completely on an encompassing federal statute that does not authorize fees. Alyeska makes clear that it is for Congress, not the courts, to pick and choose among types of actions warranting fees. 421 U.S. at 269, 95 S.Ct. at 1627. Thus the question before us remains one of finding affirmative congressional sanction for fees in this situation. We can find none. The federal statute under which relief was obtained here is a far-reaching statutory and administrative scheme for the provision of free appropriate public education for handicapped children. 20 U.S.C. Secs. 1401 et seq. While the creating and processing of educational programs for handicapped children is left to the states and to state law, the federal Act...