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July 27, 1987

Rory Capello, et al., Plaintiffs,
District of Columbia Board of Education, et al., Defendants

The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 Plaintiffs are before this Court on a motion to reinstate an attorneys' fees award pursuant to the recent amendment to the Education of the Handicapped Children's Act ("EHA"), 20 U.S.C. § 1415 (1986). The genesis of the motion was plaintiff's challenge to a refusal of the District of Columbia Board of Education to provide an appropriate educational program for their autistic child, Rory Capello. On January 23, 1980, this Court ruled that the Board's proposed education plan was inadequate and ordered defendants to place and fund Rory at the Concord School in Yellow Spring, West Virginia, as required by both the EHA and the Rehabilitation Act of 1973 as amended 29 U.S.C. § 701. Thereafter, on June 9, 1982, this Court awarded plaintiff's attorneys' fees in the amount of $ 8,424 in accordance with the fee provision, Section 505 of the Rehabilitation Act. Defendants appealed that award and on June 28, 1982 our Circuit Court stayed the fee award pending the Supreme Court's decision in Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984). In Smith, the Court held that the EHA was an exclusive remedy for securing special education programs and forbade parties from proceeding concurrently under the Rehabilitation Act. The Smith Court further held that since Congress failed to include a fee provision in the EHA, such awards were impermissible. Based on Smith, our Circuit Court vacated plaintiffs' fee award on August 17, 1984, 743 F.2d 45.

 Plaintiffs seek to reinstate their attorneys' fee award arguing that since the Circuit Court did not vacate the award until August 17, 1984, their action was still "pending" on July 4. The Board of Education opposes plaintiff's application on both statutory and constitutional grounds. First, the Board argues that a case is pending for purposes of the statute only if the merits of the matter were unresolved. Since the only remaining issue on July 4 was the appropriateness of a fee award, plaintiffs' case was not pending within the meaning of the statute. Second, the Board asserts that even if Congress intended to make the law retroactive to include both cases pending on the merits and on fee awards, it has no power to do so. It contends that retroactive application of the fee provision violates the separation of powers doctrine, exceeds Congress' power under the spending clause, and interferes with the District's sovereign immunity. Finally, the Board argues that reinstatement of the earlier fee award is inappropriate because that award was calculated on a more generous formula than permitted under the new amendment.

 I. The Meaning of Pending


 The traditional starting point for interpreting a statute is the statutory language itself. In the Children's Protection Act, the phrase "actions or proceedings

 . . . which were pending" on July 4, 1984 stands alone, unqualified. *fn1" The provision does not restrict application to those cases pending on the merits; it makes no distinction whatsoever between those cases where the fee application remained the only issue "pending" and those cases where issues concerning the merits were still in dispute. Further, the retroactivity provision applies exclusively to the attorneys' fee provision. "As a result, the plain meaning of 'cases pending' in specifying the effective date of the fee statute presumably would be commonly understood to include pending fee applications." Center for Science in the Public Interest v. Regan, 255 U.S. App. D.C. 442, 802 F.2d 518, 521 (D.C. Cir. 1986).

 The legislative history strongly supports interpreting pending to include pending fee applications. Congress amended the EHA in a direct response to the Smith decision. The Senate Report accompanying the bill, stated that the Supreme Court's decision denying attorneys' fees awards was incorrect and jeopardized the protection and enforcement of the educational rights of handicapped children. An attorneys' fees provision was necessary to ensure that all parents had representation and could proceed through the courts to enforce their children's right to an appropriate education. S. Report No. 112, 99th Cong., 1st Sess. (1985) (hereinafter "S. Report"). Senator Weiker, the sponsor of both the original act and the amendment, stated that the bill "is intended to be a simple restoration and clarification of congressional intent." Handicapped Children's Protection Act of 1985: Hearings Before the Senate Subc. on the Handicapped of the Comm. on Labor and Human Resources, 99th Cong., 1st Sess. (1985) (hereinafter "Hearings") (emphasis added).

 Moreover, since the number of successful suits which were pending on either the merits or the fees in this two year interim were limited, full retroactive application would not impose a significant drain on the District's resources. *fn3"


 The School Board's assertion that pending has only one meaning - - pending on the merits is flatly wrong. To the contrary, our Circuit has never adopted a uniform definition of "pending." Rather, it analyzes each statute individually. It examines the language of the statute, how the word "pending" fits into the context of the statute and which definition would best comport with the purpose of the statute. Guided by these criteria, the Court adopted a narrow definition of pending in Nichols v. Pierce, 239 U.S. App. D.C. 146, 740 F.2d 1249 (D.C. Cir. 1984) restricting application of the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1982) ("EAJA") to cases pending on the merits. However, two years later when examining an amendment to the EAJA, our Circuit adopted a ...

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