The opinion of the court was delivered by: GREEN
MEMORANDUM OPINION AND ORDER
Plaintiffs brought this action to challenge the District of Columbia Public Schools' refusal to provide them with due process, in the form of a hearing, to contest the special education placement of their child, Renee Patsel. Renee is a learning disabled child who had attended the defendants' public school program at the Prospect School during the 1979-80 school year. She received special education services at the Prospect Learning Center. Defendants had decided to continue the same placement for Renee during the 1980-81 school year. Since the Patsels objected to this placement decision, they demanded a due process hearing. The defendants, however, refused to provide or attend such a hearing, asserting that a due process hearing was not the proper procedure by which to object to a continued placement.
This Court, in a Memorandum Opinion and Order filed September 15, 1981, (reported at 522 F. Supp. 535 (1981)) rejected the defendants' contention, and held that the plaintiffs' demand for a due process hearing must be honored by the District of Columbia Public Schools as required by the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. (1976 and Supp. III 1979), Section 504 of the Rehabilitation Act of 1973, as amended by the Rehabilitation, Comprehensive Services and Developmental Disabilities Act of 1978, 29 U.S.C. § 794 (Supp. III 1979), and the decree in Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.D.C.1972). The September 15, 1981, decision also stated specifically that "(s)hould the parties be unable to reach an agreement concerning attorneys' fees, they may seek further relief upon the requested reopening of this case for such purpose." Memorandum Opinion and Order at 10, 522 F. Supp. at 541.
Plaintiffs allege that they have received no response whatsoever to their request for attorney's fees from the defendants and that therefore they are compelled to return to the court for adjudication of this matter. Their attorney's fees request is made upon three separate legal bases: Section 505 of the Rehabilitation Act of 1973 as amended by the Rehabilitation, Comprehensive Services and Developmental Disabilities Act of 1978, 29 U.S.C. § 794a(b) (Supp. III 1979), the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976), and the "bad faith" doctrine. Since fees will be awarded under Section 505, the propriety of a fee award under the remaining two alternative bases need not be reached and will not be discussed further in this opinion.
Plaintiffs assert that the instant action resulted in vindication of their rights under both Section 615 of the Education for All Handicapped Children Act of 1975 ("EHA"), 20 U.S.C. § 1415 (1976), and Section 504 of the Rehabilitation Act of 1973 as amended by the Rehabilitation, Comprehensive Services and Developmental Disabilities Act of 1978, 29 U.S.C. § 794 (Supp. III 1979). Section 505 of the latter Act grants the court discretionary authority to award attorney's fees to a party prevailing in a Section 504 claim. Section 505, 29 U.S.C. § 794a(b) (Supp. III 1979), provides:
In any action or proceeding to enforce or charge a violation of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
Plaintiffs argue that since they prevailed in their claim under Section 504, they are eligible for a fee award, at the court's discretion, under Section 505.
Defendants are quick to point out, however, a major complication in plaintiffs' otherwise straightforward request: the EHA does not include a provision for attorney's fees. Defendants do not seriously contest that plaintiffs prevailed in this action, but instead assert that plaintiffs prevailed only upon their claims under the EHA, and thus they should not be entitled to fees since the EHA provides none. Defendants argue that the EHA's failure to provide attorney's fees is controlling since the EHA is an exclusive source of rights and remedies in actions involving the due process procedures required for special education placement disputes.
The primary issue to be decided, then, is the significance of the conspicuous absence of an attorney's fee provision in the EHA for plaintiffs' fee claim under Section 505 of the amended Rehabilitation Act. In short, does Section 504 of the Rehabilitation Act, as amended, provide independent substantive rights regarding procedures for special education placement which, when vindicated, allow the court to award fees under Section 505, or is the EHA an exclusive remedy for such claims which denies attorney's fees?
Prior case law considering attorney's fees in this area is inconclusive, at best, and fails to furnish any comprehensive analysis. Of those cases involving rights which arguably arise partly, if not primarily, under the EHA, two decisions have awarded fees, without discussion, under both Section 505 of the amended Rehabilitation Act, 29 U.S.C. § 794a(b) (Supp. III 1979), and the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976). New Mexico Ass'n for Retarded Citizens v. New Mexico, 495 F. Supp. 391 (D.N.M.1980); Hilden v. Evans, Civil Action No. 80-511-RE slip. op. (D.Ore. Nov. 5, 1980). Three have awarded fees under only Section 505 of the amended Rehabilitation Act. Campbell v. Talladega County Board of Education, 518 F. Supp. 47 (N.D.Ala.1981); Tatro v. Texas, 516 F. Supp. 968 (N.D.Tex.1981); Pratt v. Board of Education of Frederick County, 501 F. Supp. 232 (D.Md.1980). Two others have awarded fees under the Civil Rights Attorney's Fees Awards Act of 1976. Department of Education v. Valenzuela, 524 F. Supp. 261 (D.Hawaii 1981); Mattie T. v. Holladay, 522 F. Supp. 72 (N.D.Miss.1981); see also Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980) cert. den. -- - U.S. -- , 101 S. Ct. 2336, 68 L. Ed. 2d 854 (1981). Finally, two cases have denied fees on either basis. In Hines v. Pitt County Board of Education, 497 F. Supp. 403 (E.D.N.C.1980), the court stated simply that
Plaintiff seeks relief not only under the Education of Handicapped Act but also under the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Civil Rights Act, 42 U.S.C. § 1983....
Plaintiff contends that because the action was brought under these statutes the Court can, in its discretion, award attorney fees....
The Education of Handicapped Act does not mention attorney fees, and there are no cases considering whether attorney fees are permissible thereunder.
Although plaintiff has sought relief under the other two statutes, it appears to this Court that this proceeding has been treated by plaintiff throughout as being under the Education of Handicapped Act. The relief being granted is under the Education of ...