Opposition Brief — Muscogee County School District v. Mitten ex rel. Mitten

5) _ _ Supreme Court, U.S, 7

, a F T L ms)

No. 89-905 ““ ‘| . £o

—JAN 2 99

In The JOSEPH F. SPANIOL, UR.

CLERK

OS tm

Supreme Court of the United States

October Term, 1989

y‘%

vw

r

. MUSCOGEE COUNTY SCHOOL DISTRICT,

= MUSCOGEE COUNTY BOARD OF EDUCATION,

: AND DR. BRAXTON A. NAIL, SUPERINTENDENT

OF SCHOOLS FOR MUSCOGEE COUNTY,

Petitioners,

PAIGE MITTEN, BY AND THROUGH HER FATHER

AND NEXT FRIEND, ALAN MITTEN,

AND ALAN MITTEN, INDIVIDUALLY,

‘ Respondents.

ke +

. BRIEF OF PAIGE MITTEN AND ALAN MITTEN

a AS RESPONDENTS IN OPPOSITION TO THE

ae PETITION FOR A WRIT OF CERTIORARI TO THE

ig UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

>.

-

JONATHAN A. ZimrINc*

Epwarp L. GREENBLATT

Counsel for Respondents

Paige Mitten and Alan Mitten

*Counsel of Record

z, GREENBLATT & KING

al ‘A | Tower

TABLE OF CONTENTS

py Se en) 5) ee oer

SERRE I PARP URTUPMREIED 5 oe og cee ade vndwcesvcnve>

Soy se ee er ee ree

RPO GOW OPO Cee cee ce cose veewenss

SUPRA GPP AUSUIIEINT .. occ cence neces

REASONS THE PETITION FOR WRIT OF CER-

TIORARI SHOULD BE DENIED.................

I. THE WRIT OF CERTIORARI SHOULD NOT

BE GRANTED, AS CONTRARY TO THE

ASSERTION OF THE PETITIONERS, THERE

IS NO SPLIT IN THE CIRCUITS ON THIS

ISSUE. THIS RULING IS CONSISTENT WITH

THE INTENT OF THE STATUTE, THE LEGIS-

LATIVE HISTORY AND THE LANGUAGE OF

PE ET 65 o ce TAA ek EN Wikes Kener es

A. There Is No Split In The Circuits.......

B. The Eleventh Circuit Court of Appeals

Properly Ruled That The HCPA Grants A

Claim For Administrative Fees..........

I> THE PETITIONERS ASSERTION THAT THE

ELEVENTH CIRCUIT COURT OF APPEALS

USED THE WRONG LEGAL STANDARD TO

DETERMINE WHETHER THE FAMILY HAD

PREVAILED, I.E., HOLDING RESPONDENTS

HAD OBTAINED SUBSTANTIAL RELIEF

INSTEAD OF UTILIZING A “CENTRAL ISSUE”

TEST IS WITHOUT MERIT. THE COURT OF

APPEALS PROPERLY APPLIED THE HENSLEY

@ ECRERMART STANDARD..................

9

11

TABLE OF CONTENTS - Continued

Page

A. The Standard Of Review Is The Hensley v.

Eckerhart Standard of Substantial Relief.... 15

B. The Plaintiffs Prevailed On A Significant

Issue In The Litigation And Obtained

Some Of The Relief They Sought........ 16

Ill. THERE ARE NO SPECIAL CIRCUMSTANCES

WHICH EXIST TO DENY THIS FAMILY A

RIGHT TO ATTORNBYS FEES ........-..... 19

IV. THE IMPLEMENTATION DATE OF THE

HCPA GRANTING A RIGHT TO ATTOR-

NEY’S FEES FOR THE LIMITED NUMBER

OF CASES RESOLVED BETWEEN SMITH V.

ROBINSON AND THE ENACTMENT OF

THE HCPA IN AUGUST OF 1986 DOES NOT

VIOLATE THE SPENDING POWER CLAUSE

OR THE SEPARATION OF POWERS

CLAUSE OF THE CONSTITUTION OF THE

UNITED STASGSs ........ »» scsueeeeeees 23

CONCLUSION .... ....s0 ss aue 65 sane eer 28

iii

TABLE OF AUTHORITIES

Page

Cases

Arons v. New Jersey State Board of Education, 842

NE re 9

Barbara R. v. Tirozzi, 665 FSupp. 141 (D.Conn.

eee ck aca en ensbasce evuveeyeeees+s 27

Blum v. Stenson, 465 U.S. 886 (1984)................. 22

Board of Education v. Rowley, 458 U.S. 176 (1982)..... 27

Bradley v. School Board of City of Richmond, 416 US.

Ne Ce cwweeveeuesees 27

Brown v. McGarr, 774 F.2d 777 (7th Cir. 1985)........ 25

Burke v. Guiney, 700 F.2d 767 (ist Cir. 1983)......... 20

Capello v. District of Columbia Board of Education,

EG =) re 26

Christiansburg Garment Company v. EEOC, 434 U.S.

I iiinleby-cc sees cesscccencsescsss. 20

Concerned Democrats of Florida v. Reno, 601 F.2d 891

ies isa es vnvicses ss escreeees: 20

Counsel v. Dow, 849 F.2d 731 (2nd Cir. 1988), cert.

denied, 488 U.S. __, 109 S.Ct. 391, 102 L.Ed. 2d

EEE 9, 23, 26, 27, 28

Chang v. Board of Educ. of Glen Ridge TP., 685

ES ee eee 14

Duane M. v. Orleans Parish School Board, 861 F.2d

EE 9, 12, 13

Eggers v. Bullit Cour‘ School Board, 854 F.2d 892

EE 9, 12, 13, 22

iv

TABLE OF AUTHORITIES —- Continued

Page

Espino v. Besteiro, 708 F.2d 1002 (5th Cir. 1983)...... 20

Fontenot v. Louisiana Bd. of Elem. and Second. Educ.,

$35 F.2d 117 Gth Cir. 1968)... ccc v cen sedesene’ 20, 27

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)............-- 27

Gautreaux v. Chicago Housing Authority, 690 F.2d

601, (7th Cir. 1982), cert. denied, 461 U.S. 961

CBOE ance ciccdneviccnkceseVontanen sth ee eehe es ress 20

Georgia Association for Retarded Citizens v.

McDaniel, 855 F.2d 805 (11th Cir. 1988), cert.

denied, 489 U.S. __, 109 S.Ct. 2431 (1989)....... 6, 23

Gore v. Turner, 563 F.2d 159 (5th Cir. 1977) .......... 22

Hensley v. Eckerhart, 461 U.S. 424 (1983) .6, 7, 14, 15, 16

Hewitt v. Helms, 482 U.S. 757 (1987)..............4-. 19

Honig v. Doe, 488 U.S. __, 108 S.Ct. 592, 98 L.Ed

Dee OO Cenk inv eho cs sanciekesseenaeee ee 26, 27

Hutto v. Finney, 437 U.S. 678 (1977)...... irase mets aay a

International Oceanic Enterprises, Inc. v. Menton, 614

F.2d 502 (Sth Cir. 1980)...........6- esse seer eeeees 22

] & J Anderson, Inc. v. Erie, 767 F.2d 1469 (10th Cir.

19GB). . ccdcevccdacsubiup eases bacnsaseaeeee 20

Jones v. City of Lubbock, 727 F.2d 364 (Sth Cir. 1984) .... 27

Jones v. Reagan, 748 F.2d 1331 (9th Cir. 1984)........ 25

Lauren T. v. Crisp County, SBE 1986-28................ 4

Leonard v. Argento, 699 F.2d 874 (7th Cir. 1982),

cert. denied, 464 US. G15 (9G) ois in ceue Si ei iede. 22

Manacke v. School Board of Pinnelas County, Fl., 762

F.2d 912 (ith Civ. 1906).....iscccccuedesteeeweeens 27

TABLE OF AUTHORITIES —- Continued

Page

Mathern v. Campbell County Children’s Center, 674

ee 2s ee 14

McCormack v. Burlington Elementary School District,

C-88-0141 (JPO) (N.D. Cal. 1988).................. 10

McSomebodies v. Burlington Elementary School Dis-

ivect, G66 Fad 1557 Oth Cir. 1969) .............. 9, 10

Miami Herald Publishing Company v. City of Hallan-

dale, 742 F.2a S90 (ith Cir. 1964)................. 15

~ Mitten by and through Mitten v. Muscogee County

School District, 877 F.2d 932 (11th Cir. 1989)... passim

Moore v. District of Columbia, 886 F.2d 1335 (D.C.

IE PNG 8 so 6 405 34 4) 8 ¥ 4 oe econ gee Ors dee 9, 10

Moore v. District of Columbia, No. 88-7003 (D.C. Cir.

oo A ee 10

Morrow v. Stewart, 580 F.2d 1284 (5th Cir. 1978)..... 20

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) ..... 15

New York Gas Light Club v. Carey, 447 U.S. 54 (1980) .11, 13

North Carolina Department of Transportation v. Crest

Street Community Council, 479 U.S. 6 (1986)

ess frre, {Lee Pe eee ET CTE TEER CETL Ce wei aay Ba, 94

Odum v. Clark, 748 F.2d 1538 (11th Cir. 1984)........ 15

Pennhurst State School and Hospital v. Halderman,

CG 6, 26, 27, 28

Pension Benefit Guaranty Corp. v. Gray & Co., 467

cd cept es xe evediseddvetvcees 24, 25

Popham v. City of Kennessaw, 820 F.2d 1570 (11th

einen nec aces yvcesenessecss ced 15

vi

TABLE OF AUTHORITIES - Continued

Page

Prescott v. Palos Verdes Peninsula Unified School

Dist., 659 F.Supp. 921 (N.D. Cal. 1987)......... 10,

Rhodes v. Stewart, 488 U.S. __, 109 S.Ct. __, 102

Lal BB 1 GROG inks cc csacck ieee

Rollison v. Biggs, 660 F.Supp. 875 (D.Del. 1987) ......

Sch. Bd. of Prince William County v. Malone, 662

F.Supp. 999 (2.D. Va. 196) «6s esecenaves iududeen

Serafina v. San Mateo City School District et al.,

C-88-0799 (JPO) (N.D. Cal. 1989)...............46-

Smith v. Robinson, 468 U.S. 992 (1984)..... 8, 23, 26,

Temple University v. United States, 769 F.2d 126 (3rd

27

Che. 1908) coc cavicvwssasacuyewenyieseeeeepneeaas 25

Texas Teachers Association v. Garland Ind. Sch. Dist.,

489 US. __, 109 S.Ct. __, 103 L.Ed. 2d 866

(39GB)... ccvcndencetwoedesaceeedseesenwarenes passim

Tonya K. By Diane K. v. Bd. of Educ. of Chicago, 847

F2d 1263 Gth Cir, 19GB .00+<consscdssstecsasanees 24

Turton v. Crisp County Sch. Dist., 688 F.Supp. 1535

(M.D. Ga. 1966) «030 0s5scwks dae aneeeeeeee een 27

Unified Sch. Dist. No. 259 v. Newton, 673 F.Supp.

418 (D.Kam. 1967) 6 s00000nsesdennvnanan 11, 13, 26, 27

United States v. Darusmont, 449 U.S. 292 (1981)...... 25

United States v. Locke, 471 U.S. 84 (1983) ............ 25

United States v. Sioux Nation of Indians, 44 U.S. at

371 (1980)... .ccsoownesne.wen eis eee bee Saeh om 25

Usery v. Turner Elkhorn Mining Company, 428 U.S. 1

(1976) ...... 200000406 es wens oe elk een

vii

TABLE OF AUTHORITIES - Continued

Page

Webb v. Dyer County Board of Education, 471 U.S.

EAE reer ee eee 13

Williams v. Boston School Committee, 709 F.Supp. 27

eae ee ek istiae bed estes cane’ a> 11

Wilson v. Attaway, 757 F.2d 1227 (11th Cir. 1985) .... 15

Yaris v. Special Sch. Dist., 661 F.Supp. 996 (E.D. Mo.

Mt es he ieee kau ee RE OR ae 4.4 ves 27

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND RuLEs OF CourT

Fourteenth Amendment To The United States

SUE eee tebe ooo sc cvevsrennseses 6, 8, 26

eer ot gwd Disabled Bill of Rights Act, 42

SS TL SU vache caatant vera sees he ees 27

Education For All Handicapped Children’s Act of

1975, as amended, 20 U.S.C. §§ 140T et seq. .. passim

Federal Land Policy and Management Act, 43

U.S.C. § 1701, Pub. L. 94-579, 90 Stat. 2743....... 25

Handicapped Children’s Protection Act of 1986,

P.L. 99-372, 100 Stat. 796, 20 U.S.C. § 1415(e) ....4, 7

Rule 17 (1)(a) of the Rules of the Supreme Court .... 10

Title IV of the Employment Retirement Income

SS BARS at Dk) Ge 24

Title VI of the 1964 Civil Rights Act, 42 U.S.C.

LOGE ae Windies vere rineeseeercricces 12

Title VII of the 1964 Civil Right’s Act, 42 U.S.C.

aby tay 33

viii

TABLE OF AUTHORITIES - Continued

Page

30 USL..B SOl OO OG. oie ies Feisna sy pease 24

po Bik toe 2 errr errr rrr - PB Ay 4

TD UA. Fete ccs cccsctentevccsnucease cee 4

OR WE BT ak oh dcr kina cesenareeee 6, 11, 12

O.C.G.A. ch. 37-6 Day Car Centers For The Men-

Cay TRORINIONE oie ceed ds edn ik spe ee 2

FEDERAL REGULATIONS

$6 CHA & MON ..... 00.00 eee 3

$6 CRE 6 SOREN... .. 05s eercloee eee 3

4 CIE COS... ...- 55. ee 3

OTHER MATERIALS

Handbook of Practice and Internal Operating Pro-

cedures and Rules, D.C. Circuit, August 1, 1987.... 10

Hockman, “The Supreme Court and the Constitu-

tionality of Retroactive Legislation”, 73 Harv.

Law, GOR CP a dace ticks ccc sdicbulaocsmawssiass: 24

H. Rep. 99-296, 99th Cong., 1st Sess. (1985)...... 13, 16

H. Cong. Rep. 99-687, reprinted in part, U.S. Cong.

& Admin. News, 99th Cong., 2nd Sess., 1799

(TSB) ..0.0 sccccccectsissdnsdanes chaaeneeeelenetss 13

Schreck, “Attorney’s Fees For Administrative Pro-

ceedings Under. The Education Of The Hand-

icapped Act: of Carey, Crest Street And

Congressional Intent”, 60 Temple Law Quar-

terty SOP CHGS)... ioc nctncdhcdpccoweguaeaenea read $< 13

S. Rep. 99-112, reprinted in, U.S. Cong. & Admin.

News, 99th Cong., 2nd Sess., 1799 (1986) ...... vee 13

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Eleventh Circuit is reported as Mitten by and

through Mitten v. Muscogee County School District, 877 F.2d

932 (11th Cir. 1989). It is also set out in the Petitioners’

Appendix at App. 1-13. The order denying rehearing is

unreported. The administrative decision of the Regional

Hearing Officer of December 31, 1985 is in Petitioners’

Appendix at 18-35, the State Hearing Officer decision is at

Appendix 33-41, and the trial court opinion is at App.

14-17.

&.

4

STATEMENT OF THE CASE

The Respondent Paige Mitten believes the Peti-

tioners’ Statement of the Case is misleading and finds it

necessary to restate the case.

Paige Mitten, now thirteen, is a multiple hand-

icapped child, who in addition to cerebral palsy, blind-

ness, and lack of adequate speech and ambulatory skills

has severe mental retardation. (App. 3; 18-19). The Mitten

family moved from Texas to Georgia, being transferred by

the military prior to the beginning of the 1985-86 school

year. In Texas Paige had received public special education

and related services under the Education For All Hand-

icapped Children’s Act of 1975, as amended, 20 U.S.C.

§§ 1401 et seq. (“EHA”). Upon attempting to enroll their

child in the Muscogee County School District they were

denied services. (App. 22-3). Muscogee County did not

write an individual educational program (IEP), as

required by the EHA after the parents requested several

9

meetings. See, Fact Finding No. 4 at App. 22. In lieu of

providing services or assuming responsibilities for ser-

vices, they simply referred the student to a “day care

center” run by the Georgia Department of Human

Resources. See, O.C.G.A. ch. 37-6, Day Care Centers For

The Mentally Retarded. That center did not use certified

teachers, certified or licensed therapists, did not follow

educational standards and as a matter of policy and prac-

tice did not follow Georgia’s special education rules and

regulations. See, Fact Finding No. 7 at App. 23; App. 30.

The Muscogee County Petitioners expressly and directly

refused to provide special education services or assure

their provision as required under the EHA.

The 1985-86 school year began with Paige receiving

no educational services under the EHA. The family there

fore requested an administrative hearing (through coun-

sel) under the EHA to adjudicate and correct Petitioners

improper actions. The Petitioners initially refused to

acknowledge the family’s counsel’s request for a hearing

and no hearing officer was appointed. The result was

additional delays in providing Paige appropriate educa-

tional services. Later the Petitioners agreed to provide

related services personnel only, that is licensed therapists

for a small portion of Paige’s educational program but

refused to comply with the placement requirements

under the EHA or provide teachers. Still later, in the

administrative hearings the Petitioners took the position

that a contract between the Georgia Department of Edu-

cation and the Georgia Department of Human Resources

permitted this conduct. Contrary to Petitioners’ assertion,

this contract was not the first contract between these

agencies but was simply a successor to contracts effect

since 1978, the first enforcement date of the EHA. See. 34

| i t

C.FR. §§ 300.122, 300.124 and 300.600(b). The contract did

not permit the actions taken as it expressly required that

an IEP be written and that Paige receive special education

services and not merely health or day care services. (App

30-1)

The Petitioners belatedly permitted the appointment

of a hearing officer and at the regional hearing

YT)

; Pity ry ”

RK A CPILIVIICIS

BEALL

continued to assert that the contract permitted th

avoid writing an IEP, that they had no responsibility t

provide trained and licensed teachers, and that

the educational standards required under Federal

State education law applied once they decided to s«

Paige to a day care center. The family objected to t]

services at the center, asserting their right ef

appropriate public education” and also asserting tl

Paige should be in a school. The Regional Hearing Offic«

found that Paige’s due process rights had been violated

by the Petitioners due to their failure to permit a tin

hearing, (App. 25), that Paige had a right to an IEP, (Ay

26), that placement was improperly made prior to tl

writing of the IEP, (App. 26), that Paige had a right

licensed and certified teachers though finding that as

long as educational standards were met in all regards, t!

location of Paige’s educational program could be tl

training center. (App. 28-31). The “contract” defense of

the Petitioners was rejected by the Hearing Officer. (App

27-28).

The Petitioners, (and not the family), appealed this to

the second stage administrative hearing under the EHA

The parents were forced to defend in that second forum

ind did so successfully as the State Hearing Officer sus-

ned the decision of the Regional Hearing Officer on all

After passage of the Handicapped Children’s Protec

Act of 1986, P.L. 99-372, 100 Stat. 796, 20 U.S.C

§ 1415(e) et seq. (“HCPA”), the Georgia State Department

Education ruled that it would not permit parties to

raise or seek attorneys fees in its administrative mecha

nism. (App. 4).' The family made a reasonable demand

r compensation, and when this was denied they filed

suit seeking attorneys fees under the HCPA in the United

States District Court. In the litigation before the District

Court, the decisions of the Hearing Officers were entered

nto evidence as well as the affidavit of Ms. Patricia

Smith, counsel administratively for the Mitten family, the

affidavit of Alan Mitten, and the family’s discovery

\quiries against the Petitioners. The Petitioners intro-

duced only the family’s responses to their discovery.

The trial court did not conduct an evidentiary hear-

ing. There was never any introduction of evidence con-

cerning the intent or objectives of the Mitten family in

pursuing their hearing rights, except as reflected in their

affidavit. There was no evidence whatsoever taken con-

cerning Mr. Mitten’s financial ability to support attorneys

fees. The evidence as to his contract with his counsel

reflected that he had been billed for fees and had paid his

This ruling occurred in Lauren T. v. Crisp County, SBE

1986-28, a copy of which was Exhibit D to the Respondents’

complaint. A ruling of the State Hearing Officer is binding on

all regional hearing officers in Georgia.

costs. The unrebutted evidence established that his objec

tive in securing a hearing was to receive appropriat:

educational services for his child, and then later, correct

the due process violation of the District. These were the

two issues identified by the Regional Hearing Officer

(App. 21). The unrebutted affidavits of Mr. Mitten and

Ms. Smith established that they had raised and prevailed

on a number of claims. The family denied the Petitioners

Request for Admission that the “central issue” in bring

ing the litigation was only to move the student to another

location for services. The Petitioners admitted that the

family had prevailed on certain issues

On March 11, 1988 the District Court denied the

family relief. The Court without citing evidence in sup

port of its position determined that the Respondents

“primary objective” was to have the child removed from

the Department of Human Resources Center (App. 15),

and then declined, in its “discretion”, to award attorneys

fees by ruling that the Petitioners had acted in accordance

with a “recently enacted” contract and that the Respon-

dents could afford to pay fees and did not pay any fees or

costs. (App. 15-6). The Court then ruled that the family

did not have a right to file their complaint for attorneys

fees, relying upon North Carolina Department of Transporta-

tion v. Crest, 479 U.S. 6 (1986). (App. 16).

The Mitten family appealed this to the United States

Court of Appeals for the Eleventh Circuit. During the

course of the Court of Appeal’s proceedings, this Court

decided Texas Teachers Association v. Garland Ind. Sch.

Dist., 489 U.S. __, 109 S.Ct. __, 103 L.Ed. 2d 866 (1989)

(“Garland”) unanimously overruling the “primary objec-

tive” standard for attorney’s fees used in the Fifth and

Eleventh Circuit under 42 U.S.C. § 1988. While the Court

of Appeals below did not cite Garland, the Court relied

upon the legislative history of the HCPA which sets out

the Hensley v. Eckerhart, 461 U.S. 424 (1984), “significant

relief test” found that the Respondents had prevailed,

(Mitten, 877 F.2d at 935, App. 7-8), and obtained signifi-

cant relief as Paige was, through her administrative vic-

tory, provided an educational program, provided

instruction by licensed teachers and had been denied her

“free and appropriate public education” (Mitten, 877 F.2d

at 936, App. 9-10). The Court of Appeals also rejected the

assertion that a good faith but an erroneous position is a

defense to attorneys fees. It held that this statute, like all

fee statutes, does not require that fees be paid before thx

reimbursement is sought. (Mitten, 877 F.2d at 937, App

10-11).

The Court of Appeals held consistent with the great

body of the case law under the EHA, that the HCPA was

intended to permit the recovery of administrative attor-

neys fees. (Mitten, 877 F.2d at 935, App. 6-7). The Court of

Appeals addressed the “spending power” argument con-

cerning the retroactive application of the HCPA, (which

had been raised in a single page in the Petitioners’ Brief),

and rejected it holding that the HCPA was passed pur-

suant to § 5 of the Fourteenth Amendment, granting

Congress power not analyzed in Pennhurst State School

and Hospital v. Halderman, 451 U.S. 1 (1981) (“Pennhurst

I”). (Mitten, 877 F.2d at 937-938, App. 11-13). It also found

that the retroactivity of the HCPA was constitutional in

this particular case, distinguishing its own decision in

Georgia Association for Retarded Citizens v. McDaniel, 855

F.2d 805, 808 (11th Cir. 1988). Ibid. There it had held the

ieee

Same section unconstitutional in the context of a case

where a prior decision denying fees had been entered

prior to the enactment of the HCPA. After denial of a

motion for rehearing filed by the Petitioners below, they

now petition this Court for the writ of certiorari.

+.

eg

SUMMARY OF ARGUMENT

The Petition should be denied because the Court of

Appeals properly construed and applied the Hand-

icapped Children’s Protection Act of 1986, Pub. L. 99-372,

20 U.S.C. § 1415(e) to the factual circumstance in this

case. Contrary to the position of the Petitioners there is

no present conflict in the circuits as five circuits have

ruled that attorney fees may be sought and recovered by

families who prevail in administrative hearings under the

Education For All Handicapped Children’s Act of 1975, as

amended, 20 U.S.C. §§ 1401 et seq. The single circuit to

decide to the contrary has vacated its split decision and

calendared the issue for en banc review

The Petition also states that the standard for deter-

mining the “prevailing party” in a fee application should

be whether the plaintiff prevailed on the “central or

primary” relief sought. This Court resolved that question

by rejecting that test for the Hensley v. Eckerhart formula-

tion of “significant relief” on “any issue” last term in

Texas Teachers Association v. Garland Ind. Sch. Dist., 489

U.S.__, 109S.Ct.___, 103 L.Ed 2d 886 (1989). Further, the

Petitioners suggest that district courts inquire into a fam-

ily’s resources and ability to pay their attorney as a

special circumstance to deny a compensatory fee award

They ask this Court to review the Eleventh Circuit's

rejection of their asserted good faith as a defense to

attorney fees. These positions are without support in any

decision of this Court or any Court of Appeals and

should be rejected as irrelevant to the consideration of fee

awards.

The Petitioners then suggest that the explicit retroac-

tive provision of the HCPA, which is generally directed

and limited in time to correct an error perceived by

Congress in Smith v. Robinson, 468 U.S. 992 (1984) is

unconstitutional under the spending power clause or the

separation of power clause of the United States Constitu-

tion. Yet the Court of Appeals was correct in approving

this legislation as rationally related to a legitimate gov-

ernmental purpose and therefore as permissible legisla-

tion. Further, the law at issue is enacted, in part, under

authority found in § 5 of the Fourteenth Amendment of

the United States Constitution, which avoids the spend-

ing power argument raised by Petitioners.

The effect of the Court of Appeals decision is that the

attorney fee act passed as an amendment to the special

education laws is being uniformly enforced among the

circuits. This enforcement is consistent with the terms of

the act and the explicit intention of Congress to assure

that families are made whole if they prevail in mandatory

adjudicatory hearings to vindicate their disabled child’s

rights.

?

REASONS THE PETITION FOR

WRIT OF CERTIORARI SHOULD BE DENIED

I. THE WRIT OF CERTIORARI SHOULD NOT BE

GRANTED, AS CONTRARY TO THE ASSER-

TION OF THE PETITIONERS, THERE IS NO

SPLIT IN THE CIRCUITS ON THIS ISSUE.

THIS RULING IS CONSISTENT WITH THE

INTENT OF THE STATUTE, THE LEGISLA-

TIVE HISTORY AND THE LANGUAGE OF

THE STATUTE.

The Petitioners ask this Court to grant certiorari con-

tending there is a split in the circuits, and alternatively,

that the Court of Appeals improperly construed the stat-

ute to permit a party to receive an award of attorneys fees

for administrative work. Neither of these two assertions

are correct; nor do they support the granting of the

petition.

A. There Is No Split In The Circuits.

The Eleventh Circuit Court of Appeals is joined by

four (4) circuits in construing the HCPA to permit the

initiation of an action to recover attorneys fees for time

spent in administrative proceedings. These are Duane M

v. Orleans Parish School Board, 861 F.2d 115 (5th Cir. 1988);

Eggers v. Bullit County School Board, 854 F.2d 892 (6th Cir.

1988); Counsel v. Dow, 849 F.2d 731 (2nd Cir. 1988), cert

denied, 489 U.S. __, 109 S.Ct. 391, 102 L.Ed. 2d 380 (1988);

McSomebodies v. Burlington. Elementary School District, 886

F.2d 1559 (9th Cir. 1989).2 See also, Arons v. New Jersey

2 In addition to Moore v. District of Columbia the Petitioners

cite Serafina v. San Mateo City School District et al.;

(Continued on following page)

10

State Board of Education, 842 F.2d 58, 62 (3rd Cir. 1988)

(dicta).

The Petitioners state that there is a split in the circuits

based upon the District of Columbia panels’ decision in

Moore v. District of Columbia, 886 F.2d 1335 (D.C. Cir.

1989). That panel in a two-to-one opinion reversed the

trial court’s decision granting administrative attorneys

fees, reported as Moore v. District of Columbia, 661 F.Supp.

263 (D.D.C. 1987). That Court’s opinion has been vacated

by the District of Columbia Circuit Court’s grant of en

banc review. Moore v. District of Columbia, No. 88-7003

(D.C. Cir., November 22, 1989). See, Handbook of Practice

and Internal Operating Procedures and Rules, D.C. Cir-

cuit, August 1, 1987 at XII, (B)(2). Thus there is no split in

the circuits which would qualify this case for review

under Rule 17 (1)(a) of the Rules of the Supreme Court.

(Continued from previous page)

C-88-0799(JPO) (N.D. Cal. 1989) and McCormack v. Burlington

Elementary School District, C-88-01419)PO) (N.D. Cal. 1988).

These cases have been reversed by the Ninth Circuit in

McSomebodies v. Burlington Elementary School District, 886 F.2d

335 (9th Cir. 1989). The only other HCPA case cited by Peti-

tioners is Rollison v. Biggs, 660 F.Supp. 875 (D.Del. 1987), which

is contrary to the dicta in Arons v. New Jersey State Bd. of Educ.,

842 F.2d 58, 62 (3rd Cir. 1988) and which misapplies a single

reference in the HCPA’s legislative history. See, Prescott v. Palos

Verdes Peninsula Unified School Dist., 659 F.Supp. 921 (N.D. Cal.

1987.)

11

B. The Eleventh Circuit Court of Appeals Properly

Ruled That The HCPA Grants A Claim For

Administrative Fees.

The Court of Appeals held that the use of the word

“proceeding” in the HCPA was an explicit reference to

the administrative proceedings mandatory under the

EHA, and that therefore there was a claim in the district

court for costs and fees. (Mitten, 877 F.2d at 935, App.

6-7). This is consistent with the use of the phrase “pro-

ceeding” throughout 20 U.S.C. § 1415, including other

references within subsection (e). See, Unified Sch. Dist. No.

259 v. Newton, 673 F.Supp. 418, 420 (D.Kan. 1987); Prescott

v. Palos Verdes Peninsula Unified School Dist., 659 F.Supp.

921, 923 (N.D. Cal. 1987); Williams v. Boston School Com-

mittee, 709 F.Supp. 27 (D.Mass. 1989).

The Petitioners suggest that the Court of Appeal’s

failure to distinguish North Carolina Dept. of Transportation

v. Crest Street Community Council, 479 U.S. 6 (1986) (“Crest

Street”) also requires granting of the writ. They must rely

on the Crest Street’s disapproval of dicta from New York

Gas Light Club v. Carey, 447 U.S. 54 (1980) (“Carey”)

regarding 42 U.S.C. § 2000e-5(k) attorney fees, when

applied to 42 U.S.C. § 1988 situations. This misperceives

the HCPA’s reliance on Carey, and the intentional struc-

tural similarities between the EHA and Title VII of the

1964 Civil Right’s Act, 42 U.S.C. § 2000e, through their

mandatory administrative mechanisms.

In Crest Street the litigants had participated in elec-

tive administrative proceedings under environmental

protection statutes. They then attempted to intervene ina

federal proceeding over those issues, under which there

12

was no right to fees and raise Title VI claims under the

1964 Civil Rights Act, 42 U.S.C. § 2000d. The administra-

tive case was resolved prior to a ruling on the motion to

intervene and the district court dismissed the motion.

The would-be intervenors then filed an independent

action for fees, alleging that they had prevailed adminis-

tratively on claims that were precursors to their Title V1

complaint. This Court held that Title VI did not require

administrative proceedings, that the proceeding in which

they may have prevailed was not one of the civil rights

“proceedings” enumerated under § 1988, and that there-

fore an independent action for fees was not available. The

Crest Street opinion relied on legislative history of that fee

statute, 42 U.S.C. § 1988, which appeared to limit its

application only to court actions. See, Eggers, 854 F.2d at

895-6, citing Crest Street.

This case is substantially different due to the

intended difference in the EHA/HCPA. Here the fees

arise directly from the same proceeding between the par-

ties, after the Mittens’ final success in the administrative

mechanism. This, unlike Crest Street, is not a collateral

attempt to gain a fee award. Duane M., 861 F.2d at 118.

The EHA is also much more like Title VII than Title VI.

Here mandatory hearings adjudicate and resolve disputes

between litigants. These force families into retaining

counsel, preparing and presenting witnesses and evi-

dence, and rigid procedural restrictions, including

administrative appeals. In this process parents may be

partially successful but appeal the case based upon issues

they lost to the district court. If they then fully prevail

they would have a right to compensation for time spent

in the administrative proceeding as long as the time met

13

the test of Webb v. Dyer County Board of Education, 471 US.

234, 243 (1985) as necessarily related and useful to their

ultimate success. Other parents, like the Mittens, may be

entirely successful in the administrative trial and not

need to seek district court review. Thus, under the HCPA,

like Title VII:

It would be anomalous to award fees to the

complaintant who was unsuccessful or only par-

tially successful in obtaining state and local

remedies but to deny an award to the complain-

tant who is successful in fulfilling Congress’

plan that federal policies be vindicated at the

state or local level.

Carey, 447 U.S. at 62-63. The legislative history of the

HCPA shows that the “sponsors and legislative commit-

tee members agreed to provide complete reimbursement

for the entire expenses incurred in both the mandatory

administrative proceeding and the later court action.’

Schreck, “Attorney’s Fees For Administrative Proceed

ings Under The Education Of The Handicapped Act: Of

Carey, Crest Street And Congressional Intent”, 60 Temple

Law Quarterly 599, 650 (1987). The intent of Congress is

articulated explicitly at each step of its consideration

E.g., S. Rep. 99-112, 99th Cong., Ist Sess., (1985) at 7-8; H

Rep. 99-296, 99th Cong., Ist Sess., (1985) at 5; and H.

Cong. Rep. 99-687, reprinted in part, U.S. Cong. & Admin.

News, 99th Cong., 2nd Sess., 1799, 1807-1810 (1986). “In

short, in floor debates over two years and in various

legislative reports, both houses of Congress unam-

biguously assented to attorneys’ fees for work done

solely at the administrative level.” Unified School Dist. No.

259 v. Newton, 673 F.Supp. 418, 422 (D.Kan. 1987). See

discussion, Eggers, 854 F.2d at 895-898; Duane M., 861 F.2d

14

at 118-119; Chang v. Board of Educ. of Glen Ridge TP., 685

F.Supp. 96, 98-100 (D. N.J. 1988); Mathern v. Campbell

County Children’s Center, 674 FSupp. 816, 818 (D. Wyo.

1987). In summary Crest Street is not authority to deny the

Mittens’ claim for costs and fees expended. They had to

initiate a “proceeding” to adjudicate their rights and the

district court therefore is authorized under the HCPA to

see to their reasonable compensation.

Il. THE PETITIONERS ASSERTION THAT THE

ELEVENTH CIRCUIT COURT OF APPEALS

USED THE WRONG LEGAL STANDARD TO

DETERMINE WHETHER THE FAMILY HAD

PREVAILED, I.E., HOLDING RESPONDENTS

HAD OBTAINED SUBSTANTIAL RELIEF

INSTEAD OF UTILIZING A “CENTRAL

ISSUE” TEST IS WITHOUT MERIT. THE

COURT OF APPEALS PROPERLY APPLIED

THE HENSLEY v. ECKERHART STANDARD.

The Petitioners ask this Court to grant review as they

believe the Court of Appeals applied the wrong standard

for entitlement to fees. They assert that the Court of

Appeals should have used a “primary/central issues”

test to determine whether the Respondents had broken

the threshold to become prevailing parties for the pur-

poses of an entitlement to attorneys fees. This is without

merit based upon this Court’s holding in Texas State

Teacher Association v. Garland Independent School District,

489 U.S. __, 109 S.Ct. __, 103 L.Ed 2d 866 (1989). Fur-

ther, to the extent it relies upon an erroneous construction

of the relief granted in the administrative hearing, the

Court of Appeals was correct in reversing.

A. The Standard Of Review Is The Hensley v.

Eckerhart Standard of Substantial Relief

The trial court without citation found that the

Respondents were not prevailing parties as they had not

been successful in their “primary objective”. See, Trial

Court Order at 2, App. 15. As noted above the Petitioners

did not put forth any evidence to support their version of

the family’s “primary objective”. The family attacked this

on appeal as utilizing an improper standard and as

clearly erroneous.

Respondents concede that prior to last term the Fifth

and Eleventh Circuits had used a confusing “primary

relief” test under 42 U.S.C. § 1988. See, e.g., Wilson 7%

Attaway, 757 F.2d 1227, 1248 (11th oe. 1985), Miami Herald

Publishing Company v. City of Hallandale, 742 F.2d 590 (11t!

Cir. 1984). Yet even in the Eleventh Cc ircuit some courts

had backed away and avoided articulating the standard

as a “central issue” or “primary relief” test, going instead

straight to Hensley’s “substantial relief” formulation. E.¢

Odum v. Clark, 748 F.2d 1538 (11th Cir. 1984); Popham :

City of Kennessaw, 820 F.2d 1570 (11th Cir. 1987), citing

e.g., Hensley and Nadeau v. Helgemoe, 581 F.2d 275, 278-79

(1st Cir. 1978).

In response to this status of the law, the family below

asked the Eleventh Circuit to recognize that the HCPA

used the significant relief test as a matter of statutory

construction, or alternatively, invited that court to over-

turn the “primary/central issue” paradigm. The family

argued below that Congress had clearly intended that the

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“Hensley”)

standard of “substantial relief” be utilized under the

16

HCPA. They cited the extensive legislative history of the

act, expressly setting out and incorporating the Hensley

standards. E.g., H.Rep. 99-296, 99th Cong., 1st Sess. (1985)

at 5-6. The court below chose to apply the Hensley test of

substantial relief to the HCPA. (Mitten, 877 F.2d at 936,

App. 8-9).

This Court in Garland addressed the “primary relief/

central issue” standard and held that the “’central issue’

test was directly contrary to the thrust of (the) decision in

Hensley”. Id., 103 L.Ed 2d at 876. The proper threshold for

fees is whether the plaintiff succeeds on “any significant

claim affording (them) some of the relief sought”. Ibid.

This Court went on to state that the central issue test

creates a subjective problem that is almost impossible for

the judiciary to answer, that is, what was the primary

relief in the minds of the plaintiffs when they filed their

litigation. Ibid. The Petitioners ignored Garland below and

in their petition. The suggestion that this Court should

grant review to correct the Eleventh Circuit’s failure to

utilize the “primary relief/central issue” test is meritless.

B. The Plaintiffs Prevailed On A Significant Issue

In The Litigation And Obtained Some Of The

Relief They Sought.

As the Respondents demonstrate in the statement of

the case, the administrative hearing in this case was

sought because Paige Mitten was not in school, had no

IEP and the school district was taking the position that

they had no duty to provide services for her at all. Later,

the Petitioners refused to initiate due process procedures.

During the course of the administrative proceedings and

17

later by virtue of the administrative order, Paige Mitten

earned a right to special education services, gained a

hearing and a declaratory decision\that the District had

acted improperly in denying a hearing request, and also

gained a right to have all of her services protected under

EHA standards. She won the right to certified teachers

and EHA standards for her services. She did not directly

prevail on one issue, which was where the services

should be located. Faced with the Regional Hearing Offi-

cer’s decision, the Petitioners, not Paige Mitten, appealed

to the State Hearing Officer. The State Hearing Officer

rejected their appeal and affirmed the Regional Hearing

Officer.

In the District Court, the family introduced uncon-

troverted affidavits addressing their “primary issue”.

These stated that the objective of the litigation was to

secure Paige her “FAPE”, 20 U.S.C. § 1401(18), through an

IEP and a proper school program. This was the same

issue identified by the hearing officer. (App. 21). The

family denied the Petitioners’ discovery request that they

had lost the primary issue claim; the Petitioners admitted

in discovery that the family had prevailed on certain

issues. The Petitioners introduced no other evidence but

nevertheless argued in the trial court, on appeal and now

before this Court, that they somehow knew what the

“primary issue” had been and that they had won the

litigation.

On this evidentiary record the trial judge inexplica-

bly concluded that the family’s “primary issue” had been

to remove their child from a training center. The Eleventh

Circuit Court of Appeals properly reversed this holding.

(Mitten, 877 F.2d at 936, App. 8-9). First it is clear that the

18

child obtained significant relief in that she obtained spe-

cial education and related services that are appropriate to

her under the EHA. In this regard one need only rely on

the clear holdings of both administrative hearing officers.

These in part provide:

In review of the above findings and the evi-

dence considered my decision is that:

(1) The Muscogee County School District vio-

lated the time lines by not scheduling a due

process hearing within twenty days from the

receipt of the official notice from the parents’

attorney; and,

(2) That the Muscogee County School District

failed to provide the child a free and appropri-

—___ate education in that it failed to develop and

implement an IEP for the child prior to October

23, 1985.

Decision of the Regional Hearing Officer, App. 31-2. The

State Hearing Officer’s decision states:

The Regional Hearing Officer decided that the

Local System violated the time lines by not

scheduling a due process hearing within twenty

days after receipt of the official notice from the

parents’ attorney. The Regional Hearing Officer

also decided that Local System failed to provide

a free, appropriate public education because:

(1) it failed to develop an IEP for the student

prior to October 23, 1985; and,

(2) the placement is not consistent with the

regulations which require the student to be pro-

vided in education which meets the standards of

the state educational agency .. .

Decision of State Hearing Officer, App. 34. The State

Hearing Officer at Part IV of his decision then concluded:

19

Based upon the foregoing discussion, the record

presented and the briefs and arguments of coun-

sel, the state hearing officer is of the opinion

that the local board failed to demonstrate and

offer the student an appropriate program and

that the local board was responsible for violat-,

ing the time lines when it failed to requesi a

hearing upon the request of the parents’

counsel.

The decision of the regional hearing officer, to

the extent it is consistent with this decision is

hereby

Sustained.

Decision of State Hearing Officer, App. 41. Thus the

conclusion of the Court of Appeals is correct. The

improper conduct of the Petitioners terminated to the

benefit of the child, see, Hewitt v. Helms, 482 U.S. 757, 761

(1987); Rhodes v. Stewart, 488 U.S. _,109S.Ct. _, 102

L.Ed 2d 1 (1989), and Respondents have therefore “pre-

vailed”. The Petitioners continued colorization of their

actions is dilatory if not frivolous.

III. THERE ARE NO SPECIAL CIRCUMSTANCES

WHICH EXIST TO DENY THIS FAMILY A

RIGHT TO ATTORNEYS FEES.

The Petitioners at Question III assert that their

actions in denying services to this severely mentally

retarded student were somehow justified by an agree-

ment between several branches of state government.

Alternatively, in this section they assert that the family

had the ability to pay for legal services and therefore they

now have no right to reimbursement for the cost of

securing their child’s statutory (and constitutional)

20

rights. Under the holdings of this Court and virtually

every lower court which has addressed the issues,

Respondents are entitled to an award of attorneys fees

unless there are special circumstances making such an

award unjust. See, Christiansburg Garment Company v.

EEOC, 434 U.S. 412, 417 (1978); Concerned Democrats of

Florida v. Reno, 601 F.2d 891 (11th Cir. 1979); Morrow v.

Stewart, 580 F.2d 1284, 1300 (5th Cir. 1978). If special

circumstances exist the burden of establishing that rests

on the party opposing fees. E.g., Gautreaux v. Chicago

Housing Authority, 690 F.2d 601, 611 (7th Cir. 1982), cert.

denied, 461 U.S. 961 (1983). Further, the circuits have

uniformly held under related attorneys fees bills that

good faith is not a defense to the entitlement of the

plaintiff as a prevailing party and not a special circum-

stance sufficient to deny recovery. E.g., Espino v. Besteiro,

708 F.2d 1002, 1005-6 (5th Cir. 1983); Burke v. Guiney, 700

F.2d 767, 772 (1st Cir. 1983); ] & ] Anderson, Inc. v. Erie, 767

F.2d 1469, 1474 (10th Cir. 1985). See also, Fontenot v. Louisi-

ana Bd. of Elem. and Second. Educ., 835 F.2d 117, 120 (Sth

Cir. 1988) (HCPA case).

In addition, the factual assertion of the Petitioners

that their illegal conduct was simply the enforcement of a

contract between two branches of State government was

rejected by the Regional Hearing Officer and by the State

Hearing Officer. (App. 27-8 and App. 37-8). Both found

that the so called “pact” between the several state agen-

cies did not permit or condone the denial of rights which

should be afforded Paige Mitten. The final construction of

the “pact” was that it could not waive or terminate the

student’s rights. It was therefore enforced against the

21

—

position of the Petitioners and this “special circumstance”

never factually arose.

On the next issue, the Petitioners in the trial court, in

the circuit court, and again before this Court continue to

state that Paige Mitten had the “ability to pay” for the

legal services and/or that these had never been billed to

her family. First, there was no evidence whatsoever to

support this assertion. The only evidence submitted

explicitly stated that the family had been billed for the

legal services and that the family had paid the costs. The

unrebutted evidence reflected that the family remained

liable for the attorneys fees. The ruling of the trial court

cited no evidence supporting the conclusion that the fam-

ily had the ability to pay.

The threshold entitlement is whether the family “pre-

vailed”. A family’s ability to pay attorneys for helping

them secure statutorily protected rights is irrelevant to

any consideration of entitlement to fees. (Mitten, 877 F.2d

at 937, App. 10.) The economic status of the family is not

and should not be before any court. It would create

differential justice: One standard of law for those with the

funds to vindicate their rights and a second standard of

law for those with less funds. One also can only ponder

how a court would determine whether the family could

pay. Do families with large expenses in caring for hand-

icapped students have to earn more than others? Cer-

tainly no family, no matter how wealthy, anticipates that

they will have to initiate litigation to have their child

afforded a public education. How much should a family

make to deny them an award? When the Petitioners

appealed and subjected this family to additional costs

and fees, when would the Mittens become financially

22

unable to further support the litigation? If the case went

on could a family become financially unable to pay when

their resources were exhausted, and if so, would their

entitlement begin from that point in time or relate back?

If, as this Court held in Garland, a trial court should not

inquire into the “primary” objective of the family, it is

even more egregious to suggest that trial courts should

make case by case determinations about a family’s ability

to pay their lawyer in order to entitle that family to

reimbursement for the cost of vindicating rights.

The Respondents believe this Court has implicitly

rejected the question of payment in Blum v. Stenson, 465

U.S. 886 (1984) where the ability to charge clients was

determined irrelevant to whether the plaintiffs had pre-

vailed and can collect fees. Similarly in Hutto v. Finney,

437 U.S. 678 (1978) this Court permitted an award and

collection of compensatory attorneys fees where attor-

neys fees had been initially paid by a third party. The

Court of Appeals below and its predecessor, the Fifth

Circuit Court of Appeals and the other circuits which

have addressed this issue have uniformly rejected as

being outside the rubric of “special circumstances” any

consideration of a plaintiff’s financial ability to pay. See,

e.g., International Oceanic Enterprises, Inc. v. Menton, 614

F.2d 502 (5th Cir. 1980); Gore v. Turner, 563 F.2d 159, 163-4

(5th Cir. 1977); Leonard v. Argento, 699 F.2d 874, 900 (7th

Cir. 1982), cert. denied, 464 U.S. 815 (1983). Cf. Eggers, 854

F.2d at 898-900 (Fees may be awarded to public agency).

There is no reason for reviewing or upsetting the decision

below on these grounds.

23

IV. THE IMPLEMENTATION DATE OF THE

HCPA GRANTING A RIGHT TO ATTOR-

NEY’S FEES FOR THE LIMITED NUMBER OF

CASES RESOLVED BETWEEN SMITH V.

ROBINSON AND THE ENACTMENT OF THE

HCPA IN AUGUST OF 1986 DOES NOT VIO-

LATE THE SPENDING POWER CLAUSE OR

THE SEPARATION OF POWERS CLAUSE OF

THE CONSTITUTION OF THE UNITED

STATES.

The trial court in this case never reached the issue

whether or not the HCPA by its retroactive application

violates the spending power clause or the separation of

powers clause of the United States Constitution. The Peti-

tioners raised this claim in a single page of their respon-

sive brief before the Eleventh Circuit. The Court of

Appeals reached the issue’ and upheld the constitu-

tionality of the law. A similar conclusion has been

reached by the other Courts of Appeals which have

addressed the issue. E.g., Counsel v. Dow, 849 F.2d at

737-739. Moreover, the Eleventh Circuit has been partic-

ularly sensitive to these issues, denying retroactive attor-

neys fees in an earlier case where it viewed a prior

judgment on fees rendered after Smith v. Robinson, 468

U.S. 992 (1984) as requiring dismissal of a new petition

under the HCPA. See, Georgia Association for Retarded Citi-

zens v. McDaniel, 855 F.2d 805, 808 (11th Cir. 1988), cert.

denied, 489 U.S. __, 109 S.Ct. 2431 (1989).

The HCPA at § 5 expressly makes it retroactive to

cases pending before Smith v. Robinson or decided after

Smith v. Robinson but prior to the enactment date. The

analysis of retroactivity raises a due process question and

the “burden is on the one complaining of the due process

24

violation to establish that the legislature has acted in an

arbitrary and irrational way”. Usery v. Turner Elkhorn

Mining Company, 428 U.S. 1, 3 (1976) (hereinafter

“Elkhorn”). See, Pension Benefit Guaranty Corp. v. Gray &

Co., 467 U.S. 717 (1984) (hereinafter “Gray”). See also,

Counsel v. Dow, 849 F.2d at 739-738, Tonya K. By Diane K. v.

Bd. of Educ. of Chicago, 847 F.2d 1243 (7th Cir. 1988).

(HCPA cases). See Discussion, Hockman, “The Supreme

Court and the Constitutionality of Retroactive Legisla-

tion”, 73 Harv. L.Rev. 692, 719 (1960). This analysis has

never been addressed or distinguished by the Petitioners.

Applying the test, it is clear that the HCPA was legisla-

tion which was intentionally retroactive, was curative

and is rationally related to a legitimate government pur-

pose, and therefore withstands constitutional challenge.

In Gray a bill was passed to amend Title IV of the

Employment Retirement Income Security Act, 29 U.S.C.

§§ 1301 et seq., (“ERISA”) because one of ERISA’s prob-

lems was that it encouraged withdrawals from multi-

employee plans. Pub.L. 96-364, 94 Stat. 1208. Congress

made that amendment retroactive because it was “prop-

erly concerned that the employees would have an even

greater incentive to withdraw if they knew that legisla-

tion to impose more burdensome liability in withdrawing

was being considered”. Gray, 467 U.S. at 730. The Gray

court relied on the earlier decision in Elkhorn. There

twenty coal mine operators had challenged part of the

Black Lungs Benefits Act of 1972, 30 U.S.C. §§ 901 et seq.,

on the grounds that it offended due process because its

retroactive provisions required operators to compensate

workers who no longer worked in the industry. This

Court deferred that decision to Congress and held that

25

the due process clause poses no bar to such compensa-

tion. Id. 428 U.S. at 19-20. The Gray opinion was also cited

with approval in United States v. Darusmont, 449 U.S. 292

(1981) (per curiam), a decision upholding a retroactively

imposed income tax. There this Court stated:

This retroactive application has apparently been

confined to short and limited periods required

by the practicalities of producing national legis-

lation. We may safely say that it is a customary

congressional practice.

Darusmont, 449 U.S. at 296-297. Since Gray this Court also

upheld retroactive application of the Federal Land Policy

and Management Act, 43 U.S.C. § 1701, Pub. L. 94-579, 90

Stat. 2743, even though some individuals lost mining

rights they thought they had owned in United States v

Locke, 471 U.S. 84 (1983). See also, Temple University v

United States, 769 F.2d 126 (3rd Cir. 1985); Brown v

McGarr, 774 F.2d 777, 782-4 (7th Cir. 1985); and Jones v

Reagan, 748 F.2d 1331, 1339 (9th Cir. 1984).

Even the cases Petitioners cite on retroactivity do not

support their position. United States v. Sioux Nation of

Indians, 44 U.S. at 371 (1980) does not prohibit all retroac-

tive legislation but involved a case where the Govern-

ment renewed claims (extended retroactive liability

against itself) and this Court determined that that was

permissible legislation. One of the tests which emerged

from the Sioux Indian cases is that there is no due process

or separation of powers concern if the legislation is gen-

eral, that is, if it is not directed to individuals as an

attempt to create or reverse a particular result. Thus

courts have relied upon the general application of the

26

HCPA to support its constitutionality. E.g., Capello v. Dis-

trict of Columbia Board of Education, 669 F.Supp. 14 (D.D.C.

1987). In summary, as the general retroactive provision

relates to a limited number of cases in a two-year window

and it is rationally related to legitimate governmental

purposes as curative legislation designed at protecting

families under the EHA, it is permissible legislation. The

retroactivity challenge does not support the granting of

the writ.

The Petitioners also suggest that liability in this case

would impair their contractual obligations in violation of

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1

(1981) (“Pennhurst I”). Again, this is an issue which was

not addressed by the trial court but rejected by the Court

of Appeals when raised by Petitioners. Petitioners have

never distinguished any of the HCPA cases which hold

directly against them on these issues. E.g., Counsel, 849

F.2d at 735-6; Sch. Bd. of Prince William County v. Malone,

662 F.Supp. 999, 1000 (E.D. Va. 1987); Unified School Dis-

trict No. 259 v. Newton, 673 F.Supp. 418 (D. Kan. 1987).

Petitioners’ argument does not acknowledge that the

EHA and the HCPA were passed in part due to Congress’

power under the Fourteenth Amendment creating sub-

stantive rights. See, Honig v. Doe, 488 U.S. __, 108 S.Ct.

592, 98 L.Ed. 2d 686 (1988). Therefore fee obligations are a

proper exercise of authority irrespective of the spending

power analysis in Pennhurst I. Petitioners also ignore the

fact that the fee obligation is clear and unambiguous, and

therefore the spending power authority is not infringed

under Pennhurst I.

nN

N

Pennhurst I held that the Developmentally Disabled

Bill of Rights Act, 42 U.S.C. § 6010 created no substantive

rights and that Congress acting only pursuant to the

spending clause could not impose financial burdens on

the states in exchange for federal funds unless it did so

unambiguously. In Board of Education v. Rowley, 458 U.S

176 (1982), Smith v. Robinson, 468 U.S. 992 (1984) and

Honig v. Doe, 488 U.S. __, 108 S. Ct. 592, 98 L.Ed. 2d 686

(1988) this Court has held that the EHA protects substan-

tive and specific rights. See also, Manacke v. School Board of

Pinnelas County, Fl., 762 F.2d 912, 918 n.6 (11th Cir. 1985),

and Fontenot v. La. Bd. of Elem. and Second Ed., 835 F.2d 117

(Sth Cir. 1988). Thus once it is clear that the exercise of

Congress’ power was to protect rights or that the legisla

tion was enacted under the Fourteenth Amendment, the

Pennhurst I argument falls. See generally, Fitzpatrick 7

Bitzer, 427 U.S. 445, 456-7 (1976); Jones v. City of Lubbock,

727 F.2d 364, 374 (5th Cir. 1984). Under § 5, Congress has

authority to impose attorneys fees obligations, Bradley v

School Board of City of Richmond, 416 U.S. 696 (1973), and

these duties may be imposed retroactively, Hutto v. Fin-

ney, 437 U.S. 678 (1977). Accord, Counsel v. Dow; United

School District No. 259 v. Newton, 673 FSupp. 418, 423-4

(D.Kan. 1987); Barbara R. v. Tirozzi, 665 F.Supp. 141

(D.Conn. 1987); Turton v. Crisp County Sch. Dist., 688

F.Supp. 1535, 1538-9 (M.D. Ga. 1988); Yaris v. Special Sch

Dist., 661 F.Supp. 996, 1001 (E.D. Mo. 1987) (HCPA cases).

Thus these grounds are not a basis for granting the writ

sought by the Petitioners.

The Petitioners’ argument also overstates Pennhurst |

There this Court held that the spending power clause

could extend obligations but it must do so clearly and

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28

unambiguously. Pennhurst I, 451 U.S. at 147. The HCPA

expressly makes itself retroactive and therefore does not

cross the Pennhurst I limitation. See, e.g., Mitten, 877 F.2d

at 937, App. 12; Counsel v. Dow.

,%

-—_

CONCLUSION

The Petitioners have not demonstrated any grounds

for the granting of the writ. There is no division of

authority between the circuits and the great weight of the

case law is with the Court of Appeals. The statutory

construction of the HCPA below has ample support in the

plain wording of the act, as reinforced by the legislative

history of this curative legislation. The question of the

test for “prevailing parties” was resolved adverse to Peti-

tioners last term in a case the petition ignores. A plain-

tiff’s “ability to pay” an attorney should not be a special

circumstance denying entitlement to fees. Finally, the

HCPA is constitutional legislation and the Petitioners

have not demonstrated any credible argument to the

99

contrary. The Respondents ask this Court to deny

Petition for the Writ of Certiorari

Respectfully submitted,

JONATHAN A. ZIMRIN«

Georgia State Bar No. 78525

Counsel of Record

EDWARD L. GREENBLATT

Georgia State Bar No. 3078

LipsHuUTz, GREENBLATT & KING

2300 Harris Tower

233 Peachtree Street

Atlanta, Georgia 30043

(404) 688-2300