purpose all strongly support the conclusion that the fee provision applies to cases which were pending on either the merits or the fees as of July 4, 1984. Accordingly, plaintiffs' suit was pending under the meaning of the Act.
II. Constitutional Challenges
The School Board raises myriad issues in its challenge to the constitutionality of the Children's Protection Act. It contends that the statute violates the doctrine of separation of powers, exceeds Congress' power under the spending clause and undercuts the sovereign immunity of the states. These challenges though numerous, are vaguely conceived and meritless.
A. Separation of Powers
The Board contends that the Act violates the doctrine of separation of powers because it reverses final orders by the judiciary. For legislation to be struck down because it encroaches on the powers of the judiciary, it must dictate an outcome which reverse the court's decision in the particular case. United States v. Klein, 80 U.S. 128, 20 L. Ed. 519 (1871). The Children's Protection Act may impact cases which were pending on August 4, 1984 but it does not reverse any substantive decision concerning a handicapped child's right to an appropriate education. Nor does it dictate any outcome regarding a court's decision on the fee issue. Rather, the fee provision grants courts discretion to award attorneys' fees to those plaintiffs who prevailed in their proceedings.
B. Due Process
The Board argues that the retroactivity provision of the legislation must be invalidated because it violates due process rights. It implicitly suggests that the decision in Smith which relieved the states from having to pay the parents' attorneys' fees bestowed upon the states a vested property interest which cannot be retroactively rescinded.
To the contrary, the Supreme Court has never ruled that Congress is barred from applying its legislation retroactively. "Legislation which readjusts the rights and burdens is not unlawful solely because it upsets otherwise settled expectations." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17, 49 L. Ed. 2d 752, 96 S. Ct. 2882 (1978). Retroactive application of an act will be approved if it is justified by a rational legislative purpose. Pension Benefit Guaranty Co. v. R.A. Gray & Co., 467 U.S. 717, 730, 81 L. Ed. 2d 601, 104 S. Ct. 2709 (1984).
Clearly, Congress had a rational purpose in mind when it enacted the amendment to the Education for all Handicapped Children's Act. It wanted to overturn the impact of Smith to ensure that all parents, rich or poor, could resort to the courts to vindicate the rights of their handicapped children. Congress back-dated the fee provision to 1984 in a direct response to the Supreme Court's misinterpretation of the original legislation. The District's assertion that the doctrine of separation of powers prohibits Congress from clarifying the meaning of its own legislation turns the doctrine on its head. See Seese v. Bethlehem Steel, 168 F.2d 58 (4th Cir. 1948) (retroactive application of Amendment to Fair Labor Standards Act permitted as congressional correction of unexpected Supreme Court decision); see also Munzer, A Theory of Retroactive Legislation, 61 Texas L. Rev. 425, 468 (1982); Hochman, Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 721 (1960).
The School Board cannot reasonably claim that it has a vested property interest in avoiding payment for attorneys' fees. The due process clause protects interests that "a person has already acquired in specific benefits." Board of Regents v. Roth, 408 U.S. 564, 576, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1971). Decisions which relieve the government from paying fees are not affirmative judgments which constitute benefits protected by the due process clause. At most, a decision which denies a plaintiff monetary relief permits the District to allocate its money elsewhere. Though such a decision creates a loose benefit to the District, it does not rise to the level of a specific benefit protected by the Constitution.
The Board's case authority does not support the proposition that the legislation constitutes a "taking." Its chief authorities, Daylo v. Administrator of Veterans Affairs, 163 U.S. App. D.C. 251, 501 F.2d 811 (D.C. Cir. 1974) and IAM Nat'l Pension Fund v. Wakefield Ind. Inc., 612 F. Supp. 643 (D.D.C. 1985), involved legislation which would have specifically reversed a court's final monetary judgment awarded to a private plaintiff. Both decisions concluded that once a court granted a plaintiff monetary relief, and that judgment had become final, the individual had a vested right to that judgment. Legislation which deprives an individual of a vested right would constitute a taking in violation of due process.
However, as already noted, the Children's Protection Act does not deprive any entity of a vested monetary judgment. The Act merely overturns the consequences of Smith which denied prevailing plaintiffs any recovery for their attorneys' fees.
C. Spending Powers
The Board's challenge that the retroactive application of the fee provision exceeds Congress' powers under the spending clause, U.S. Const. art. 1 § 8, is meritless. Congress has extremely expansive powers to attach conditions to the receipt of federal funds in grant programs promulgated under the spending clause. See South Dakota v. Elizabeth Dole, 483 U.S. 203, 55 U.S.L.W. 4971, 97 L. Ed. 2d 171, 107 S. Ct. 2793 (1987); Steward Machine Co. v. Davis, 301 U.S. 548, 81 L. Ed. 1279, 57 S. Ct. 883 (1937). However, if Congress intends to impose a condition on the grant of federal monies, it must state these conditions unambiguously. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 3147, 87 L. Ed. 2d 171 (1985); Pennhurst State School v. Halderman, 451 U.S. 1, 17, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981).
If Congress has been faulted in the past for promulgating vague retroactive provisions, it could not have been clearer in this instance. Section 5 of the Act expressly states that the fee provision "shall apply with respect to actions and proceedings which were pending on July 4, 1984." See Bd. of Education of E. Windsor Regional School v. Diamond, 808 F.2d 987, 994 (3rd Cir. 1986); Fontenot v. L.A. Bd. of Elem. & Secondary Education, 805 F.2d 1222, 1225 (5th Cir. 1986) (applying amendment to revive parents counterclaim against school district for fees which was dismissed by the district).
D. Sovereign Immunity
The School Board asserts that retroactive application of the fee provision violates the District's sovereign immunity. Plaintiff disputes this allegation and also argues that, in any event, Congress has the authority to override a state's sovereign immunity in order to enforce the 14th amendment.
In Hutto v. Finney, 437 U.S. 678, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978),
the Supreme Court ruled that fee provisions which are imposed as part of costs do not violate the states' sovereign immunity, reasoning that costs are traditionally awarded without regard to sovereign immunity and are an incident of the hearing. Id. at 699. In amending the EHA, Congress explicitly provided that "the Court may award reasonable attorneys' fees as part of the costs." Sec. 615(e)(4)(B).
But, even if the provision were to infringe upon the states' sovereign immunity, "Congress has plenary power to set aside state's immunity from retroactive relief in order to enforce the substantive guarantees of the Fourteenth Amendment." Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976). The amendment was enacted pursuant to Congress' power under the 14th amendment to guarantee all persons their rights to due process. Congress implemented the provision to ensure that all handicapped children enjoyed the right to an education and had equal access to the courts to enforce their rights to an appropriate education.
III. Reinstatement of the 1981 Fee Award of $ 8,424
The Board objects to automatic reinstatement of the original fee award. It argues that the new fee provision only entitles attorneys to limited recovery for their efforts. An automatic reinstatement of fees would ignore the statutory restrictions and result in an inflated award. However, contrary to that assertion, the language of the attorneys' fee provision tracks the language of fee provisions in other statutes.
Further, the drafters of the Children's Protection Act stipulated that the fee provision should be interpreted consistent with the prevailing interpretation of other fee provisions.
In the Senate Report on the bill, the committee instructed that the terms "prevailing party" and "reasonable" be construed consistent with the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). S. Report at 13.
In arriving at its original fee award, this Court utilized the lodestar method which forms the basis for the fee determination in Hensley. The total award of $ 8,420 was calculated by considering the number of hours reasonably expended multiplied by a reasonable hourly rate. Counsel submitted affidavits and time sheets demonstrating that the hours claimed were accurate and reasonable expenditures of time. The requested hourly fee of $ 60, was a rate well within the community rate for the year 1981. See Library of Congress v. Shaw, 478 U.S. 310, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986). Since the Court's original determination of the fee award was calculated according to prevailing standards, and based on thorough supporting documents, automatic reinstatement is appropriate.
The Court also determines that the total fee award granted plaintiff's counsel is fair and reasonable under all circumstances.
An appropriate Order will be entered.
In accordance with the Memorandum Opinion issued on this date, it is this 27th day of July, 1987,
Plaintiffs' counsel is awarded fees in the amount of $ 8,420. Counsel is also entitled to fees for prevailing on this motion; appropriate affidavits and documentation to substantiate such claim should be filed by August 14, 1987.