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FELLS v. BROOKS

March 10, 1981

Kevin FELLS, et al., Plaintiffs,
v.
Donald BROOKS, et al., Defendants



The opinion of the court was delivered by: PRATT

MEMORANDUM OPINION

This is a motion for attorney's fees arising out of an action settled by stipulation. The action challenged arrangements made by the District of Columbia for the education of two physically handicapped, mentally retarded children living at the Forest Haven Home, the District's primary institution for the mentally retarded. In particular, plaintiffs, who are surrogate parents of the two children, alleged that the District's failure to provide adequate transportation from Laurel, Maryland, where Forest Haven is located, to the children's special education program at the Hospital for Sick Children, in Washington, D.C., caused the children to miss half their classes, violating their rights to an appropriate education guaranteed under a variety of federal statutes and decisions of this court. Plaintiffs sought a preliminary injunction to remedy the situation, as well as money damages for the violation of the children's rights.

 The parties quickly settled the transportation issues, and stipulated that the District would add one bus and several drivers, repair another bus, and provide alternate transportation if the buses broke down for more than a day. Plaintiffs withdrew their motion for a preliminary injunction and their damage claims, leaving only the issue of attorney's fees for adjudication.

 Plaintiffs have moved for fees under § 505 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(b) (Supp. II 1978), and under the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988 (1976 ed.). For the reasons stated below, the motion for fees under the Rehabilitation Act of 1973 is granted. We do not reach the issue of fees under the civil rights statutes.

 Discussion

 Plaintiffs substantially prevailed in this action, achieving by settlement most of what they sought to achieve by injunctive relief. They have now moved for attorney's fees under § 505(b) of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(b) (Supp. II 1978), which provides that

 
in any action or proceeding to enforce or charge a violation of this subchapter, the court, in its discretion may allow the prevailing party ... a reasonable attorney's fee as part of the costs.

 The District opposes the motion on three grounds: first, that there is no private right of action under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976 ed. & Supp. II 1978), which forbids discrimination against handicapped people in programs receiving federal assistance; second, that even if such a right of action exists, plaintiffs' failure to exhaust administrative remedies should bar the award of fees; and third, that the fee sought, $ 75 an hour for 16.8 hours work, is excessive and should be reduced. None of these contentions has merit.

 A. Right of Action

 "There is no longer any question about the existence of a private right of action to enforce plaintiff's statutory claims" under § 504 of the Rehabilitation Act of 1973. Larry P. v. Riles, 495 F. Supp. 926, 961 (N.D.Cal.1979). Every court of appeals which has ruled upon the issue has held that there is a private right of action under § 504. Camenisch v. University of Texas, 616 F.2d 127, 131 (5th Cir. 1980), cert. granted, 451 U.S. 390, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1980); National Ass'n for the Advancement of Colored People v. The Medical Center, Inc., 599 F.2d 1247, 1258-59 (3d Cir. 1979); Davis v. Southeastern Comm. College, 574 F.2d 1158, 1159 (4th Cir. 1978), rev'd on other grounds, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979); United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977).

 The legislative history of the attorney's fee provision explicitly supports the existence of a private right of action under § 504 of the Rehabilitation Act of 1973. The House Report on the 1978 Amendments stated that

 
The new section (505) permits courts, at their discretion, to award to the prevailing party in any action or proceeding to enforce sections 501, 503, or 504 of the act a reasonable allowance to cover the costs of attorney's fees .... (Section) 504 relates to nondiscrimination against the handicapped by recipients of federal assistance.

 H.R.Rep.No.1149, 95th Cong., 2d Sess. 21 (1978), reprinted in (1978) U.S.Code, Cong. & Ad.News 7312, 7322. Thus Congress recognized that a private right of action exists under § 504, and sought to encourage use of that right of action by ...


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