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July 28, 1987

Lani Moore, et al., Plaintiffs
District Of Columbia, et al., Defendants

The opinion of the court was delivered by: SPORKIN

 Stanley Sporkin, United States District Judge

 This is a case to collect attorneys' fees and other costs incurred in bringing administrative actions under the Education for All Handicapped Children Act ("EHA"), 20 U.S.C. § 1400 et seq. Defendants interpose two defenses -- that the Act should not apply retroactively, and that attorneys fees should not be available for administrative proceedings. *fn1" Because neither of these arguments has merit, the plaintiffs are entitled to summary judgment.


 The EHA, enacted in 1975, ensures that handicapped children are given access to public education by providing federal money to assist state and local agencies in educating these handicapped children. Certain parties, such as these plaintiffs, may bring actions to enforce their rights under the EHA. In July of 1984, the Supreme Court held that attorneys' fees were not available to the prevailing party in such an action. Smith v. Robinson, 468 U.S. 992, 1020, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984). Subsequently, in August 1986, Congress enacted the Handicapped Children's Protection Act of 1986 ("the Act"), Public Law 99-372. This Act effectively overturns the Supreme Court's holding in Smith v. Robinson supra, by allowing an award of attorneys' fees to the parents or guardians of handicapped youth who prevail in a special education action. Though passed in late 1986, the Act provided that attorneys' fees would be awardable for any action brought before July 4, 1984, which was pending on July 4, 1984, as well as for any action brought after July 3, 1984.


 Defendants first argument is that the attorneys' fees provision in the Handicapped Children's Protection Act "should not be enforced retroactively." Memorandum of Points and Authorities in Support of [Defendants'] Motion to Dismiss, or in the Alternative, for Summary Judgment ("Def.Br.") at 7. Specifically, defendants raise two objections. First, they express concern that retroactive application of the Act will offend notions of the "separation of powers" by reversing final Court orders, id. at 8, although they do not point to any final court orders which the plaintiffs are attempting to reopen. Second, defendants assert that retroactive application of the fees provision would act as a condition on the grant of federal funds, a condition which they contend they were unaware of when they accepted the funds. Defendants assert that retroactively thereby impairs the voluntary "contract" between the federal government and the District with respect to EHA funding, id., citing Pennhurst State School v. Halderman, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981), and thus exceeds Congress's spending power.

 Neither of these arguments is persuasive. The Supreme Court has held that it is within the authority of Congress to pass retroactive legislation, especially where, as here, the legislators are attempting to explicate what they intended in an earlier version of the law. See Pension Benefits Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 81 L. Ed. 2d 601, 104 S. Ct. 2709 (1984). See also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 49 L. Ed. 2d 752, 96 S. Ct. 2882 (1976). In this case, by the later, retroactive Act, Congress was expressing its explicit approval for attorneys' fee awards after the Supreme Court had denied the award of such fees. This type of retroactive clarification is clearly within Congressional authority and does not offend the constitution. Thus, most of the federal district courts that have considered this issue have upheld the retroactive application of the Act. Rollison v. Biggs, 656 F. Supp. 1204 (D. Del. 1987); Silano v. Tirozzi, 651 F. Supp. 1021, 1027 (D. Conn. 1987); School Board of the County of Prince William v. Jerry F. Malone, 1986-87 EHLR DEC. (CCR) 558:259 (E. D. Va. 1987); Edward B. v. Rochester New Hampshire Sschool District, 1986-87 EHLR DEC. (CCR) 558:176 (D. N.H. 1986). Cf. Lana Abu-Sahyun v. Palo Alto Unified S. Dist., 1986 87 EHLR DEC. (CCR) 558:275 (N. D. Cal. 1987).

 As to defendants' two more specific points: first, defendants have not shown that retroactive application would intrude on the judicial function by dictating a result in any specific judicial decision and thus they have failed to indicate how the notion of "separation of powers" might be transgressed by retroactivity. Second, defendants' contract impairment argument misreads Pennhurst. Pennhurst does not hold that Congress cannot retroactively condition the receipt of funds; rather Pennhurst deals with the question of Congressional intent and whether such retroactivity was intended in that case. In this case, there is no doubt that Congress intended to allow awards of attorneys' fees to prevailing plaintiffs. Therefore, there is no infirmity in the statute in question.

 Finally, it is worth noting that the District of Columbia has reimbursed prevailing plaintiffs in numerous other cases brought under the Act. It is disturbing to this Court that the defendant District of Columbia would not have a consistent policy with regard to fee payments -- either such payments are unconstitutional as argued here and should not be made; or else they are paid, as in other cases, and the District should not allege their unconstitutionality as it does here.

 In summary, I find the retroactive section of the Act in question is not a bar to plaintiffs recovery of attorneys' fees.


 The defendants other argument is that "the Act should not be interpreted to permit the award of attorneys' fees to parents who prevail at the administrative level." Def. Br. at 10. However, Congress manifested its intention that attorneys' fees would be recoverable for administrative proceedings in the clear words of the statute. Specifically, Section 1415(e)(4)(B) reads, "in any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees . . ." *fn2" Thus, the words of the statute itself support the plaintiffs' position that fees are recoverable for administrative proceedings. Burpee v. Manchester School District, 1986-87 EHLR DEC. (CCR) 558:273 (D. N.H. 1987); Michael F. v. Cambridge School Department, 1986-87 EHLR DEC. (CCR) 558:269, 270 71 (D. Mass. 1987).

 Despite the plain words of the statute, defendants urge the Court to look at the legislative history of the Act which, they argue, reveals a Congressional intent to deny fees for administrative proceedings. To make this argument, defendants rely on North Carolina Dept. of Transportation v. Crest Street Community Council, 479 U.S. 6, 107 S. Ct. 336, 93 L. Ed. 2d 188 (1986), wherein the Supreme Court recently held that attorneys' fees under 42 U.S.C. § 1988 are to be awarded for administrative proceedings only when those proceedings are part of or followed by a lawsuit. Id. at 341. Defendants argue that in passing the Handicapped Act, Congress intended only to make the fees provision coextensive with other fee-shifting statutes. Thus, they reason, now ...

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