Turillo v. Tyson

• Decision Date: 29 March 1982
• Docket Number: Civ. A. No. 81-0356.
• Citation: 535 F. Supp. 577
• Parties: Christopher TURILLO and Margaret Turillo, next best friends of Christopher Turillo v. Rena TYSON, C. Peterson, J. D. Canterell, Joann M. Head, Thomas M. Foley, Jamestown School Committee, Bradley Hospital.
• Court: U.S. District Court — District of Rhode Island

535 F. Supp. 577

Christopher TURILLO and Margaret Turillo, next best friends of Christopher Turillo v. Rena TYSON, C. Peterson, J. D. Canterell, Joann M. Head, Thomas M. Foley, Jamestown School Committee, Bradley Hospital.

Civ. A. No. 81-0356.

United States District Court, D. Rhode Island.

March 29, 1982.

COPYRIGHT MATERIAL OMITTED

Sister Arlene Violet, Providence, R. I., for plaintiffs.

Amato DeLuca, Warwick, R. I., Henry Swan, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

This case presents a difficult question pertaining to the award of attorney's fees in an action brought to obtain a free appropriate public education for a handicapped child. More precisely, the question here is whether attorney's fees are available to a prevailing plaintiff for work performed in connection with state administrative proceedings required by the Education for All Handicapped Children Act, 20 U.S.C. §§ 1401 et seq. (the "EAHCA"). I conclude that attorney's fees may be awarded for work performed in EAHCA administrative proceedings, pursuant to 42 U.S.C. § 1988.

I

This is an action brought by plaintiffs on behalf of their 10 year old son, Christopher. Christopher, who suffers from severe mental and emotional problems, attended the Meeting Street School from February 5, 1975 until February 1979. Christopher progressed during his years at Meeting Street School, and defendant Jamestown School Committee funded the cost of his education there.

In February 1979, Christopher began experiencing emotional difficulties which caused his parents to place him first in Meeting Street School's Respite Care Program, and then Bradley Hospital, the co-defendant in this action. Although the school committee refused to pay for this placement, Bradley Hospital allowed Christopher to remain there until the commencement of this case.

Sometime in the late spring of 1981, Bradley Hospital informed plaintiffs that, unless his bills were paid, Christopher would be discharged on June 10, 1981. Plaintiffs filed a complaint and a request for a temporary restraining order in this Court on June 9, 1981, claiming that the school committee had violated Christopher's rights under the Fourteenth Amendment and under three federal statutes: the EAHCA; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983. On June 10, 1981, this Court issued a temporary restraining order enjoining Bradley Hospital from releasing Christopher and requiring defendant school committee to pay for the placement. The order was renewed twice. On July 2, 1981, the parties agreed that plaintiffs should move for partial summary judgment, and, in the meantime, the school committee would continue to fund Christopher's placement at Bradley Hospital.

Various motions, objections, and affidavits were filed in connection with the partial summary judgment proceeding. Meanwhile, more important developments were occurring in the state administrative proceedings which had also been commenced on June 9, 1981. First, the school committee agreed to a new individualized education program pursuant to which Christopher's placement at Bradley Hospital would be paid for prospectively. Furthermore, on July 23, 1981, the impartial hearing officer found that defendant school committee was responsible for Christopher's placement at Bradley Hospital for the period subsequent to June 18, 1980. On appeal, the Rhode Island Department of Education held the school committee liable for Christopher's placement from February 29, 1980, the date when Christopher's placement at Bradley Hospital began. In an order dated September 11, 1981, the Court dismissed plaintiff's complaint on the ground of mootness. Ten days later, plaintiffs moved for an award of attorney's fees for time spent before both this Court and the state administrative tribunals.

II

Plaintiffs have not clearly indicated what the basis for an award of attorney's fees is in this action. The EAHCA itself does not provide for an award of attorney's fees. Hymes v. Harnett County Board of Education, 664 F.2d 410, 412 (4th Cir. 1981); Tatro v. Texas, 516 F.Supp. 968, 981 (N.D.Tex. 1981); Anderson v. Thompson, 495 F.Supp. 1256, 1268-70 (E.D.Wis.1980), aff'd, 658 F.2d 1205 (7th Cir. 1981). There are, however, two possible alternative bases for the award of fees. First, plaintiffs might be entitled to attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988.¹ Second, plaintiffs might be entitled to fees under § 505(b) of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(b).² I will discuss each theory in turn.

A.

Plaintiffs' claim for relief under 42 U.S.C. § 1983 has two components. First, § 1983 might be available to remedy violations of plaintiffs' substantive EAHCA rights, in particular the right to a free appropriate public education. 20 U.S.C. § 1412(1). Second, § 1983 might be available to remedy a violation of plaintiffs' rights to the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.

The EAHCA is a law of the United States, and § 1983 is generally available to remedy violations of such laws. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). But it is now settled that "where the remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). The EAHCA's remedial devices are sufficiently comprehensive to infer congressional intent to withdraw the § 1983 remedy.

The EAHCA sets forth a detailed remedial scheme in 20 U.S.C. § 1415. That section encourages resolution of disputes at the local level. Parents are given the right to be involved in the initial determination of an individualized educational program for their handicapped child. 20 U.S.C. § 1415(b)(1)(A). The school system must give the parents prior notice of any change in the child's educational placement. 20 U.S.C. § 1415(b)(1)(C), and must be given an opportunity to present complaints to the school authorities. 20 U.S.C. § 1415(b)(1)(E). If the parents are not satisfied with the school's response, they are entitled to a due process hearing before an impartial hearing officer. 20 U.S.C. § 1415(b)(2). If the hearing is held by the local educational agency or an intermediate educational unit, the aggrieved party may appeal to the State educational agency. 20 U.S.C. § 1415(c). After a decision by the State agency, an aggrieved party may bring an action in federal district court. 20 U.S.C. § 1415(e)(2). These procedures are elaborated in regulations, 45 C.F.R. Part 121a, required by statute. 20 U.S.C. § 1417(b).

The States are also commanded to file plans detailing their compliance with the EAHCA, 20 U.S.C. § 1413, and the Commissioner of Education must find that the plans comply with the statute. 20 U.S.C. § 1412. If a State fails to comply, the Commissioner is authorized to withhold federal funds from the State educational agency. 20 U.S.C. § 1416. The State may bring an action challenging this decision in the court of appeals for the circuit in which the State is located. 20 U.S.C. § 1416(b).

These two detailed remedies clearly indicate congressional intent to enforce the EAHCA only by the procedures detailed therein, and 42 U.S.C. § 1983 is therefore not available to redress violations of the EAHCA. Hymes v. Harnett County Board of Education, 664 F.2d 410 (4th Cir. 1981) (finding, however, a § 1983 action for preliminary relief); Akers v. Bolton, 531 F.Supp. 300 (D.Kan. Nov. 13, 1981); Tatro v. Texas, 516 F.Supp. 968, 981-84 (N.D.Tex. 1981). Consequently, attorney's fees may not be awarded to plaintiffs under § 1983 to redress defendants' violation of the EAHCA.

Plaintiffs have also alleged, however, a violation of the equal protection clause of the Fourteenth Amendment. Plaintiffs need not show that they prevailed on the substance of the constitutional claim. Instead, they need only show that their constitutional claim was "substantial". Maher v. Gagne, 448 U.S. 122, 132, 100 S.Ct. 2570, 2576, 65 L.Ed.2d 653 (1980). "Substantial" in this context has the same meaning it had in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). H.R.Rep.No. 1558, 94th Cong., 2d Sess. 4 n.7 (1976). According to the Hagans Court:

"In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if `"its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy."' Ex parte Poresky, supra 290 U.S. 30 at 32, 54 S.Ct. 3 at 4 78 L.Ed. 152, quoting from Hannis Distilling Co. v. Baltimore, supra, 216 U.S. 285 at 288, 30 S.Ct. 326 at 327 54 L.Ed. 482, see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106, 53 S.Ct. 549, 550, 77 L.Ed. 1062 (1933); McGilvra v. Ross, 215 U.S. 70, 80, 30 S.Ct. 27 31, 54 L.Ed. 95 (1909)." Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858-859, 35 L.Ed.2d 36 (1973).

Hagans v. Lavine, 415 U.S. at 537-38, 94 S.Ct. at 1379.

Plaintiffs' constitutional claim, although questionable, cannot be said to be inescapably frivolous.

In passing the EAHCA, the Senate Labor and Public Welfare Committee noted with approval two district court decisions guaranteeing handicapped children the right to a free appropriate public education. Sen. Rep.No.168, 94th Cong., 1st Sess. 6, ...