Opposition Brief — Lutjeharms v. Rose ex rel. Rose

No. 84-1534

In The

Supreme Court of the United States

October Term, 1984

ty

Vv

JOE E. LUTJEHARMS, Commissioner of

Education, et al.,

Petitioners,

Vs.

George Rose, as next friend of

MARLA ROSE, et al.,

Respondents.

tf).

Vv

BRIEF IN RESPONSE TO THE PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

tf).

Vv

JoHn Pauw Hern

of Barrp, Horm, McEacHen,

PEDERSEN, Hamann & SrRASHEIM

1500 Woodmen Tower

Omaha, NE 68102

(402) 344-0500

Attorneys for the School

District Respondents

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

BEST AVAILABLE COPY

QUESTIONS PRESENTED FOR REVIEW

The School District respondents, in compliance with

Rules 22.1 and 34.1(a), suggest that the following questions

are presented for review with respect to their involvement

in this action:

1. Whether the Court of Appeals properly held that

a fee award against the School District respondents would

be unjust where such parties’ action did not provide the

basis for plaintiff’s successful claim?

2. Whether attorney fee awards under 42 U.S.C.

§ 1988 should lie against the School District respondents

against whom the only claim made is an inappropriate

educational placement under the Education for All Handi-

capped Children Act (EAHCA)? This question is, in turn,

dependent on whether a claim based solely on the EAHCA

also states an independent claim under U.S.C. § 1983, given

the rule of Smith v. Robinson.

ii

LIST OF PARTIES

JOE E. LUTJEHARMS, Commissioner of Education

for the State of Nebraska, STATE BOARD OF EDU-

CATION, WALTER M. THOMPSON, Individually,

and as a Member of the State Board of Education,

MARGARET LOCKWOOD, Individually, and as a

Member of the State Board of Education, FRANK E.

LANDIS, Individually, and as a Member of the State

Board of Education, DON M. LIENEMANN, Individ-

ually, and as a Member of the State Board of Educa-

tion, DOROTHY CREIGH, Individually, and as a

Member of the State Board of Education, ARLENE

E. HART, Individually, and as a Member of the State

Board of Education, WILLIAM C. RAMSEY, In-

dividually, and as a Member of the State Board of

Education,

Petitioners,

vs.

GEORGE ROSE as next friend of MARLA ROSE,

SCHOOL DISTRICT #1, DOUGLAS COUNTY, NE-

BRASKA,! OWEN KNUTZEN, Individually, and as

Superintendent of the School District #1, Douglas

County, Nebraska, DALE SAMUELSON, Individual-

ly and as Assistant Superintendent in Charge of Spe-

cial Education of School District #1, Douglas County,

Nebraska, DOROTHY BEAVER, Individually, and as

a Member of the Board of Education, School District

+1, Douglas County, Nebraska, JUNE BOSTWICK,

Individually, and as a Member of the Board of Educa-

tion, School District #1, Donglas County, Nebraska,

WALTER CALINGER, Individually, and as a Mem-

ber of the Board of Education, School District +1,

i This political subdivision, technically the School District

of Omaha, in the County of Douglas, in the State of Nebraska,

together with its officers and the members of its Board of

Education, are collectively referred to herein as the School

District respondents.

iil

Douglas County, Nebraska, PAT GERINGER, Indi-

vidually, and as a Member of the Board of Education,

School District #1, Douglas County, Nebraska, LEO

HOFFMAN, Individually, and as a Member of the

Board of Edueation, School District +1, Douglas

County, Nebraska, GAYNELLE GOODRICH, Indi-

vidually, and as a Member of the Board of Education,

School District +1, Douglas County, Nebraska, RUTH

THOMAS, Individually, and as a Member of the Board

of Education, School District #1, Douglas County,

Nebraska, FRANK BOGARD, Individually, and as a

Member of the Board of Edueation, School District

#1, Douglas County, Nebraska, RON MeGRUDER,

Individually, and as a Member of the Board of Educa-

tion, School District #1, Douglas County, Nebraska,

JAMES A. MONAGHAN, Individually, and as a Mem-

ber of the Board of Education, School District #1,

Douglas County, Nebraska, JAMES BEUTEL, Indi-

vidually, and as a Member of the Board of Education,

School District #1, Douglas County, Nebraska, LEO

KASTRICK, Individually, and as a Member of the

Board of Edueation, School District +1, Douglas

County, Nebraska,

Respondents.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

LIST OF PARTIES il

Ane OF Coes ee iv

TABLE OF AUTHORITIES ... i eae Vv

STATUTES AND BULA 2... 1

STATEMENT OF THE CASE .... 1

REASONS FOR GRANTING THE PETITION:

I. The Court Of Appeals Properly Held That

A Fee Award Against The School District

Respondents Would Be Unjust Where Such

Respondents’ Actions Did Not Provide The

Basis For Plaintiff’s Suecessful Claim. —....

A. Rose’s claim against the School District

respondents cannot be the subject of an

attorney fee award as tt was unsuccess-

ful and unrelated to Rose’s independent

due process claim against other defend-

, _. nS e E EE NNN

B. Because the judgment being appealed by

petitioners was not against the School

District respondents, the School District

respondents lack any interest therein and

may be omitted from th case under

mae 200G} Sakai cpanehdeaanasapeaies

Il. No Fee Award Can Be Made Against The

School District Respondents Under The

Teachings Of Smith v. Robinson Since Rose

Made No Successful Independent Due Pro-

eess Claim Against Them. .

CONCLUSION .......

APPENDIX

6

~!

11

In

Vv

TABLE OF AUTHORITIES

CasEs:

Arkansas Community Organizations v. Arkansas

Page

State Board, 468 F.Supp. 1254 (E.D. Ark. 1979) 4

Beil v. Board of Education, 491 F.Supp. 916 (N.D.

Ohio 1980)

4

Blum v. Stenson, 465 U.S. —, 79 L.Ed.2d 891, 104

S.Ct. 1541 (1984)

Dean v. Gladney, 621 F.2d 1331 (5th Cir. 1980),

cert. denied, 450 U.S. 983 (1981)

Harris v. Pirch, 677 F.2d 681 (Sth Cir. 1982) 0

Germain v. Mason, 79 U.S. (12 Wall) 259 (1871) ......

Hensley v. Eckerhart, 461 U.S. 424 (1983)

Mary Beth G. v. City of Chicago, 723 F.2d 1263

(7th Cir. 1983)

Middlesex County Sewage Authority v. National

Sea Clammers Association, 453 U.S. 122 (1981) ....

Monahan v. State ead Nebraska, 645 F.2d 592 (Sth

Cir. 1981) . iilelinaeiieaniaiie

8, 10

Monahan v. State ial Nebraska, 687 F.2d 1164 (Sth

Cir. 1982) ......

3, 7, 10

Monell v. New York City Department of Social

Services, 436 U.S. 658 (1978)

Neal v. Berman, 576 F.Supp. 1250 (E.D. Mich. 1983) . 5

Riddell v. National Democratic Party, 712 F.2d

165 (5th Cir. 1983)

Rizzo v. Goode, 423 U.S. 362 (1976)

Rosario _v. Amalgamated Ladies’ Garment Cut-

ters’ Union, 749 F.2d 1000 (1984)

Rose v. State of Nebraska, 530 F.Supp. 295 (D.

Neb. 1981)

vi

TABLE OF AUTHORITIES—Continued

Page

Rose v. State of Nebraska, 575 F.Supp. 132 (D.

Neb. 1983) 2

Rose v. State of Nebraska, 748 F.2d 1258 (8th Cir.

1984) we 2, 3, 6, 8, 9

Sheriff v. Beck, 452 F.Supp. 1254 (D. Colo. 1978) —. 4

Smith v. Robinson, — U.S. —, 82 L.Ed.2d 746,

1OG Ct. BAG (UGGA) ncncecececerersseseeee 1, 6,7, 8, 11

Vaughns v. Board of Education, 598 F.Supp. 1262

(D. Md. 1984) 5

Winters v. United States, 207 U.S. 564 (1908) 200 OG

STATUTES :

Neb. Rev. Stat. § 43-662 (1978) [amended, current

version at Neb. Rev. Stat. §§ 43-662, 43-662.01

(Reissue 1984)) 2... cs FF

Sup.Ct.R. 19(6) ... : . 6

C—O |

— ip © Re ae 1, 3, 6, 8, 9, 10, 11, 12

pt ES 1, 3,4,7,8

CONSTITUTION :

Eleventh Amendment, U.S. Constitution - 12

Fourteenth Amendment, U.S. Constitution — 10, 11

STATUTES AND RULES

The relevant portions of 42 U.S.C. §§ 1983 and 1988,

the Education for All Handicapped Children Act of 1975,

Rule 19(6) of the Supreme Court Rules, and former § 43-

662 of Nebraska Revised Statutes (1978), are set forth

in the Appendix, infra 1n-3n.

ret

ww

STATEMENT OF THE CASE

The School District respondents concur in the Peti-

tioners’ Statement of the Case.

ARGUMENT

1.

The Court Of Appeals Properly Held That A Fee

Award Against The School District Respond-

ents Would Be Unjust Where Such Respondents’

Actions Did Not Provide The Basis For Plain-

tiff’s Successful Claim.

As this Court has repeatedly ruled, when an award

of attorneys’ fees is to be determined, ‘‘[d]ue regard

must be paid, not only to the fact that a plaintiff ‘pre-

vailed,’ but also to the relationship between the claims

on which .. . ultimate relief was obtained.’’ Smith v.

Robinson, — U.S. —, 82 L.Ed.2d 746, 104 S.Ct. 3457, 3466

(1984) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)

and Blum v. Stenson, 465 U.S. —, 79 L.Ed.2d 892, 104

2

S.Ct. 1541 (1984)). “[FJees are not properly awarded

for work done on a claim on which plaintiff did not pre-

vail and which involved distinctly different facts and legal

theories from the claims on the basis of which relief was

awarded.” Jd. The Court of Appeals’ decision should

be affirmed to the extent it correctly held that an award

of attorneys’ fees against the School District respondents

would be unjust where no action on their part provided

the basis for plaintiff's successful claim. Rose v. State

of Nebraska, 748 F.2d 1258 (8th Cir. 1984) (App. 15J).

A. Rose’s claim against the School District re-

spondents cannot be the subject of an attor-

ney fee award as it was unsuccessful and un-

related to Rose’s independent due process

claim against other defendants.

After receiving proper notification from the School

District respondents of a proposed change in his handi-

capped daughter’s educational program, George Rose re-

quested the due process hearing guaranteed to him by

§ 1415 of EAHCA to determine her appropriate educa-

tional placement (App. 7A). The hearing officer found

that the new placement recommended by the School Dis-

trict was an appropriate educational program for Marla

Rose. The District Court held that the hearing officer’s

decision was correct und that ‘‘Rose was clearly not a

‘prevailing party’ at the administrative level ....” Rose

v. State of Nebraska, 575 F.Supp. 132 (D. Neb. 1983)

(App. 101). The District Court also ruled that the initial

2 App. refers to the Petitioners’ Appendix to their Petition

for a Writ of Certiorari in the present proceeding which con-

tains all of the decisions below. The number which follows

is the page designation in that Appendix.

3

placement and hearing process, that portion of the claim

involving the School District respondents, did not deviate

from the procedures mandated by EAHCA in any way.

Rose v. State of Nebraska, 530 F. Supp. 295 (D. Neb.

1981) (App. 13F).

The Court of Appeals agreed that the only possible

error in the entire proceeding occurred when the Edu-

cation Commissioner ‘‘reviewed” the hearing officer's

findings pursuant to 2 Nebraska statute allegedly at odds

with the mandate of the EAHCA. Monahan v. State of

Nebraska, 687 F.2d 1164 (Sth Cir. 1982) (App. 5G). No

connection was ever elleged or shown between any of

the School District responddts and either the Commis-

sioner’s ‘‘review” of the hearing officer’s decision in this

case or former Neb. Rey. Stat. 43-662 (1978) [amended,

current version at Neb. Rev. Stat. §§ 43-662, 48-662.01

(Reissue 1984)]2 For this reason the Court of Appeals

held that the only award of fees warranted was against

the Education Commissioner and the members of the

State Board of Education in their official capacities.

Rose v. State of Nebraska, 748 F.2d 1258 (Sth Cir. 1984)

(App. 15J-16J). The Court of Appeals’ opinion stated:

5 Had Rose attempted to allege a constitutional violation

against the School District respondents, no § 1983 action could

lie for lack of any “causal connection” between the respond-

ents and the constitutional violation that is the subject of the

complaint. See, Monell v. New York City Department of Social

Services, 436 U.S. 658, 692 (1978); Rizzo v. Goode, 423 U.S.

362, 370-71 (1976); Harris v. Pirch, 677 F.2d 681, 685 (8th Cir.

1982). For this reason, the Court of Appeals ruled that the

other state officials, “with a much more direct connection to

the very part of state process that raised the federal-law issue

on which plaintiff prevailed” were the only defendants liable

for the due process violation under § 1983 and for attorneys’

fees under § 1988. Rose v. State of Nebraska, 748 F.2d 1258

(8th Cir. 1984) (App. 15]-16)).

inet

The School District was a necessary defendant, but

in the special cireumstances of this case, we believe

that no fee award should be made against it.... The

local school district did only what it reasonably be-

iieved was compelled by state law. It was the in-

volvement of the Commissioner of Education in the

later administrative stages of the case, not anything

done by the local school district, that provided the

basis for plaintiff’s successful claim that the state

administrative process conflicted with federal law.

Id. Thus it is clear that Rose achieved no success in any

claim against the School District respondents.

When a party prevails against some defendants, but

certain other defendants have been found not liable as

a matter of law, no attorneys’ fees should be awarded

under § 1988 against the defendants found not liable. £.g.,

Dean v. Gladney, 621 F.2d 1331 (5th Cir. 1980), cert.

denied, 450 U.S. 983 (1981) (attorneys’ fees under § 1988

upheld as against two individual defendants and not

awarded as against county or city who had not violated

appellant’s rights); Bell v. Board of Education, 491 F.

Supp. 916 (N.D. Ohio 1980) (§ 1988 attorneys’ fees award-

ed oniy against the two defendants found liable and not

against the five absolved); Scheriff v. Beck, 452 F.Supp.

1254 (D. Colo. 1978) (plaintiff was not entitled to § 1988

award for fees incurred in pursuit of his claims against

both defendants but only against the defendant found

liable to plaintiff); Arkansas Community Organizations

v. Arkansas State Board, 468 F.Supp. 1254 (E.D. Ark.

1979) (where no sanctions were imposed on a defendant

- he was not liable for attorneys’ fees even though péaintif!

presented a theory of liability as to him and he partici-

pated in the case).

ja |

This Court in Hensley v. Eckerhart, 461 U.S. 424

(1983) dealt only with a case of multiple claims against the

same defendant. In that situation this Court held that un-

successful, unrelated claims must be treated as if they had

been raised in separate lawsuits, and no fee may be

awarded for services on an unsuccessful claim. Id.‘

Courts applying this rule in cases with multiple defend-

ants have held that defendants against whom the plain-

tiff was unsuccessful are not liable for attorneys’ fees.

The courts have thei. determined whether the unsuccess-

ful claims were related to work done on the plaintiff’s

successful claims so as to be chargeable against the de-

fendants found liable. E.g., Mary Beth G. v. City of

Chicago, 723 F.2d 1263 (7th Cir. 1983); Riddell v. National

Democratic Party, 712 F.2d 165 (5th Cir. 1983); Resario

v. Amalgamated Ladies’ Garment Cutters’ Union, 749

F.2d 1000 (2d Cir. 1984); Vaughns v. Board of Educa-

tion, 598 F.Supp. 1262 (D. Md. 1984); Neal v. Berman, 576

F.Supp. 1250 (f.D. Mich. 1983). Because Rose was in no

way suecessful in his claim against the School District

respondents, he can be awarded no attorneys’ fees against

them.>

4 The District Court applied the Hensley rule to limit the

fee award requested by Rose by forty percent due to the lim-

ited success Rose achieved.

5 According to the rule of Hensley, fees for work on Rose’s

claim against the School District respondents could not be

assessed even against those defendants found liable on the

independent due process claim since the claims were factually

unrelated and based on separate legal theories. The factual

basis of Rose’s claim against the School District respondents—

the School District’s proposal to place Marla Rose as a day

student at the Nebraska School for the Deaf—is wholly unre-

(Continued on following page)

6

B. Because the judgment being appealed by pe-

titioners was not against the School District

respondents, the School District respondents

lack any interest therein and may be omitted

from the case under Rule 19(6).

This Court long ago held that a writ of error on a

judgment in personain against one defendant may be

brought to this Court by the party against whom the

judgment is rendered, without joining other defendants.

Germain v. Mason, 79 U.S. (12 Wall) 259 (1871). The

principle is codified in Sup.Ct.R. 19(6). Only parties

to a joint judgment and not merely parties to the record

are considered to have an interest in the subject matter

of an appeal. Winters v. United States, 207 U.S. 564

(1908).

(Continued from previous page)

lated to the factual situation objected to in Rose’s claim against

the Education Commissioner and the State Board members—

that the Education Commissioner reviewed the hearing of-

ficer’s report. Rose’s legal theory against the School District

respondents—that the School District allegedly did not pro-

vide an appropriate education in violation of the guarantees

of EAHCA—is in obvious contrast to his claim that the Edu-

cation Commissioner and State Board members failed to pro-

vide an impartial due process hearing in violation of § 1983.

The Court of Appeals held the School District respond-

ents were not liable for fees because the allegedly colorable

actions of the Commissioner of Education in the later admin-

istrative stages of the case were completely separate from

anything done by the School District respondents. Rose v.

State of Nebraska, 748 F.2d 1258 (8th Cir. 1984) (App. 15]-16)).

In fact, the Court of Appeals based its decision that an award

of fees could be allowed at all, even against the Commissioner

and Board, on a decision that Rose’s due process claim was

indeprident of his EAHCA claims under the rule of Smith v.

Robinson, — U.S. —, 82 L.Ed.2d 746, 104 S.Ct. 3457 (1984).

Id. at App. 13}.

7

In this case petitioners are the only parties damaged

by an alleged error of the court. The Court of Appeals

ruled specifically that only the Education Commissioner

and State Board members in their official capacities were

liable for fees under § 1988. The School District respond-

ents were specifically found not liable.© There was no

joint judgment or decree involving both petitioners and

the School District respondents. Thus, there is no longer

any need to join the School District respondents in this

case. Petitioners have not designated the School District

respondents as respondents in their listing of parties to

the proceeding before this Court. See Petition at ii n.1.

IT.

No Fee Award Can Be Made Against The School

District Respondents Under The Teachings Of

Smith v. Robinson Since Rose Made No Success-

ful Independent Due Process Claim Against Them.

The Court of Appeals held that Rose prevailed on

his claim that former Neb. Rev. Stat. § 43-662 (1978)

[amended, current version at Neb. Rev. Stat. §{ 43-662,

43-662.01 (Reissue 1984)] contained language conflicting

with § 1415(e) of EAHCA in that the Nebraska statute

allegedly allowed the Education Commissioner to review

the findings of the impartial hearing officer. Monahan

v. State of Nebraska, 687 F.2d 1164 (8th Cir. 1982) (App.

13G-14G). By complying with this Nebraska statute and

adopting the hearing officer’s decision verbatim as to

Marla Rose, the Education Commissioner and State Board

members were held to have deprived Rose of the impartial

‘ See supra note 3.

8

due process hearing guaranteed by the EAHCA. Id. This

act, by the State Defendants alone, also constituted the

alleged independent due process violation for which fees

were awarded against the Education Commissioner and

~ State Board members. This act was entirely separate

from Rose’s EAHCA claim against the School District

respondents. Id. See Smith v. Robinson, — U.S. —, 82

L.Ed.2d 746, 104 S.Ct. 3457 (1984).’

This Court held in Smith that the comprehensive

nature of EAHCA demonstrates Congress’ intent to pre-

clude attorney fee awards under §1988 unless the plaintiff

has alleged an independent § 1983 action that is suffi-

ciently related to his successful EAHCA claim. Id. This

rule exonerates the School District respondents on two

? This Court declared in Smith v. Robinson:

[While Congress apparently has determined that local

and state agencies should not be burdened with attorney's

fees to litigants who succeed, through resort to the pro-

cedures outlined in the EHA, in requiring those agencies

to provide free schooling, there is no indication that

agencies should be exempt from a fee award where

plaintiffs have had to resort to judicial relief to force the

agencies to provide them the process they were consti-

tutionally due.

— US. —, 104 S.Ct. 3457, 3471 n.17 (1984) (emphasis added).

The Court of Appeals held that a fee award was warranted

against the Commissioner and School Board members since

Rose had to resort to judicial relief to obtain an EAHCA ad-

ministrative hearing that was “impartially conducted.” Rose

v. State of Nebraska, 748 F.2d 1258 (8th Cir. 1984) (App. 13)).

The Schoo! District respondents, however, had fully complied

with the mandates of the EAHCA applicable to their partici-

pation in the case and were found to have provided Marla

Rose the appropriate educational placement she needed. Rose

had already been afforded due process and all EAHCA guar-

antees by the School District respondents without any resort

to the judicial process. Monahan v. State of Nebraska, 645 F.2d

592 (8th Cir. 1981) (App. 13C).

a 9

bases: first, Rose had no successful EAHCA claim as

to the School District. Rose sued the School District

respondents attempting to force a change in Marla Rose’s

educational placement, but the hearing officer and courts

below found the School District’s proposal to be appro-

priate. The Courts below also found that the School Dis-

trict respondents correctly implemented the procedural

mandates of HKAHCA.

Second, if there was any relationship between any

of Rose’s claims, it was between his successful EAHCA

claim against the Education Commissioner and State

Board members and his claim alleging a violation of the

Due Process Clause, both factually based on the Com-

missioner’s role in the hearing process. There was no

§ 1983 violation by the School District respondents, and

no act by them related to Rose’s successful HAHCA claim

against the State defendants. Thus, the Court of Appeals

properly held that no fee award could lie against the

Schoo} District respondents. Rose v. State of Nebraska,

748 F.2d 1258 (8th Cir. 1984) (App. 15).

Even if Rose’s due process claim against the Edu-

cation Commissioner’s ‘‘review,’’ arguendo, could have

reached down and encompassed in its sweep the unre-

lated actions of the School District respondents, no ac-

tual violation of due process was ever shown. The courts

below only answered the question necessary to deter-

mine whether a preliminary injunction could be granted—

whether plaintiff had shown probability of suecess on the

merits. They never decided that the state and federal

schemes were inconsisient or that the Commissioner’s

review was anything more than a ‘‘rubber stamp” on the

hearing officer’s report which would not have damaged

10

any rights of Rose. Monahan v. State of Nebraska, 645

F.2d 592 (8th Cir. 1981) (App. 13C) .

In fact, the Court of Appeals held that the complaint

‘‘TrJeferences to 42 U.S.C. § 1983 are even more cryptic

a 1 seem to have been included as another means of mak-

the same procedural arguments. We are not per-

suaded, on the record before us, that it was error to dis-

miss these complaints without prejudice.” Monahan v.

State of Nebraska, 687 F.2d 1164 (8th Cir. 1982) (App.

9G). The Court of Appeals later ruled that Rose pre-

vailed, to the extent that he did at all, on his EAHCA

ground, and that the constitutional or § 1983 ground was

‘not actually reached.” Id. at App. 14G (emphasis

added).

Nothing suggests that having a commissioner or exec-

utive officer of any governinental departinent enter an

order enforcing a hearing officer’s determination is per se

a violation of the Due Process Clause of the Fourteenth

Amendment. Thus, Rose would not have prevailed on

his independent constitutional claim had it been addressed.

The preliminary injunction against the Commissioner was

8 The EAHCA is essentially a federal funding statute for

States which agree to follow the procedural guidelines set

forth therein. To hold that there is an assumed violation of

§ 1983 when the state procedural implementations of the

EAHCA do not exactly coincide with the federal statutes is

nothing less than enlarging the statutory remedy of the EAHCA

via the “and laws” provision of § 1983. The rule of this Court

in Middlesex County Sewage Authority v. National Sea Clam-

mers Association, 453 U.S. 122 (1981) requires a finding that

the Court of Appeals incorrectly assumed a deprivation of

Due Process under the Fourteenth Amendment from what

was, at most, a mere violation of the EAHCA for which no

award of attorneys’ fees can lie.

11

founded on a violation of EAHCA and not of the Four-

teenth Amendment. And, of course, no fee award lies for

an EAHCA claim standing by itself. Smith v. Robinson,

— US. —, 82 L.Ed.2d 746, 104 S.Ct. 3457 (1984).

It would be patently unjust to assume, when cogent

evidence to the contrary was never examined, that Rose

would have prevailed on the only ground that could have

warranted a fee award. As this Court held in Smith v.

Robison, ‘‘it is clear that plaintiff may not rely simply

on the fact that substantial fee-generating claims were

made during the course of the litigation. Closer exam-

ination of the nature of the claims and the relationship

between those claims and petitioners’ ultimate success is

required.” — U.S. —, 104 S.Ct. 3457, 3467 (1984). No

such examination was ever inade in the ease of Rose’s

due process claim. To grant fees to Rose simply in re-

sponse to his incantation of § 1983 would be to make fees

available in almost every EAHCA case. Id. at 3465.

o

CONCLUSION

The School District respondents need not be parties

to this appeal. Rose did not succeed in any claim against

the School District respondents, and no judgment was

entered against them individually or jointly with the State

defendants. The litigation instead resulted in a finding

that the educational placement proposal and procedures

followed by the School District respondents were com-

pletely correct, and that no fees could justly be awarded

against them.

12

The preliminary injunction which was granted to Rose

was based solely on his EKAHCA claim. This Court has

construed the intent of Congress to eliminate fee awards

from EAHCA actions. To grant fees to Rose simply

in response to his incantation of §1983 would defeat Con-

gress’ intent and make fee awards available against even

wholly exonerated school districts in almost every EAHCA

action, particularly if the State defendants are immune

from such awards under the Eleventh Amendment.

For any and all the reasons discussed here, this Court

should hold that the School District respondents need not

be joined in this appeal and that no award of attorneys’

fees should be entered against them.

Respectfully submitted,

Joun Pau Her

of Bairp, Horm, McK acHen,

PeperseN, HAMANN & SrTRASHEIM

1500 Woodmen Tower

Omaha, NE 68102

(402) 344-0500

Attorneys for the School

District Respondents

xs

In

APPENDIX

STATUTES INVOLVED:

Neb. Rev. Stat. § 43-662 (1978) [amended, current version

at Neb. Rey. Stat. §§ 43-662, 43-662.01 (Reissue 1984) ]:

State Department of Education; conduct hearings;

report; Commissioner of Education; duties. The State

Department of Education shali conduct hearings, ini-

tiated under section 43-661, using hearing officers who

shall prepare a report containing findings of facts

based on the evidence presented and decisions based

on such findings. After reviewing such findings and

decisions the Commissioner of Education shall then

recommend or direct such action as may be necessary.

Sup. Ct. R. 19(6):

All parties to the proceeding in the court whose judg-

ment is sought to be reviewed shall be deemed parties

in this Court, unless the petitioner shall notify the

Clerk of this Court in writing of petitioner’s belief that

one or more of the parties belew has no interest in the

outcome of the petition. A copy of such notice shall

be served on all parties to the proceeding below and

a party noted as no longer interested may remain a

party here by notifying the Clerk, with service on the

other parties, that he has an interest in the petition.

All parties other than petitioners shall be respondents,

but any respondent who supports the position of a

petitioner shall meet the time schedule for filing pa-

pers which is provided for that petitioner, exeept that

any response by such respondent to the petition shall

be filed within 20 days after receipt of the petition.

The time for filing such response may not be extended.

20 U.S.C. § 1415(e):

(1) A decision made in a hearing conducted pursuant

to paragraph (2) of subsection (b) of this section shall

2n

be final, except that any party involved in such hear-

ing may appeal such decision under the provisions of

subsection (¢c) and paragraph (2) of this subsection.

A decision made under subsection (ce) of this section

shall be final, except that any party may bring an

action under paragraph (2) of this subsection.

42 U.S.C. § 1983:

Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purposes of this section, any Act of Congress appli-

cable exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

R.S. § 1979; Pub.L. 96-170, § 1, Dee. 29, 1979, 93 Stat.

1284.

42 U.S.C. § 1988:

Proceedings in vindication of civil rights; attorney's fees

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

Title, and of Title “CIVIL RIGHTS,” and of Title

“CRIMES,” for the protection of all persons in the

United States in their civil rights, and for their vin-

dication, shall be exercised and enforced in conform-

ity with the laws of the United States, so far as such

laws are suitable to carry the same into effect; but

in all cases where they are not adapted to the object,

or are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law,

3n

the common law, as modified and changed by the con-

stitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be

extended to and govern the said courts in the trial

and disposition of the cause, and, if it is of a criminal

nature, in the infliction of punishment on the party

found guilty. In any action or proceeding to enforce

a provision of sections 1981, 1982, 1983, 1985, and 1986

of this title, tithe IX of Public Law 92-318, or title VI

of the Civil Rights Act of 1964, the court, in its dis-

cretion, may allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part

of the costs.

R.S. § 722; Pub.L. 94-559, § 2, Oct. 19, 1976, 90 Stat.

2641; Pub.L. 96-481, Title II, § 205(e), Oct. 21, 1980,

94 Stat. 2330.