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January 8, 1984

THE BOARD OF EDUCATION OF THE ALLEGHANY CENTRAL SCHOOL DISTRICT and AUSTIN LEAHY, JR., as Superintendent of the Allegany Central School District, Defendants.

The opinion of the court was delivered by: CURTIN


This matter is before the court upon plaintiffs' motion for attorney's fees. The complaint in this case sets forth several claims based upon a variety of legal theories, including 42 U.S.C. § 1983, the Education of All Handicapped Children Act [EHA] (20 U.S.C. §§ 1401, et seq.), and section 504 of the Rehabilitation Act (29 U.S.C. § 794). Fees are sought pursuant to 42 U.S.C. § 1988. *fn1"

 Since the last briefs were filed on this motion, the Supreme Court decided the cases of Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984), and Irving Independent School District v. Tatro, 468 U.S. 883, 104 S. Ct. 3371, 82 L. Ed. 2d 664 (1984). These cases related to the availability of attorney's fees in lawsuits involving the EHA and the Rehabilitation Act. For the reasons stated below, the motion for attorney's fees is granted.


 There are two distinct phases to this lawsuit. The complaint filed in April 1981 charged the defendant with failing to make the "procedural safeguards" of 20 U.S.C. § 1415 *fn2" available to the plaintiffs when the Plaintiffs attempted to invoke them. Specifically, the parents of Brian Blazejewski had obtained opinions from experts who believed that Brian had a learning disability and was in need of a special education which the defendants refused to provide. See Complaint, PP25-32; 45-56; 86-96. The plaintiffs also alleged that they had requested a hearing pursuant to 20 U.S.C. § 1415 to test the validity of the defendants' refusal to provide Biran with the program his parents and advisors thought he should have. The defendants allegedly denied this request and stated that such a hearing would be futile. Complaint, PP92-94.

 The court held a meeting with counsel on September 16, 1981.There, counsel for the defendants agreed to hold a hearing before an impartial hearing officer. See, Affidavit of David Franz, Esq., Item 24, P10(a). *fn3" This ended the first phase of the lawsuit.

 The second phase of this lawsuit begain in February of 1983. By this time, the hearing procedure which the defendants had agreed to undertake had been concluded. The result was a decision by the Commissioner of the New York State Education Department requiring the defendants to identify Brian Blazejewski as a handicapped student and provide him with special education services. The defendants did not implement this decision, and the plaintiffs filed a motion seeking an order directing the defendants to comply with the Commissioner's order. I granted plaintiffs' motion for a preliminary injunction on March 31, 1983. See Blazejewski v. Board of Education of Allegany Central School, 560 F. Supp. 701 (W.D.N.Y. 1983).


 An award of attorney's fees for work done up to and including September 16, 1981, is clearly proper. The complaint sought relief which would have included an order compelling the defendants to hold a hearing to determine the kind of educational program Brian should have. Five months after the complaint was filed, the defendants agreed to hold such a hearing. The complaint alleged that the failure to hold the hearing was a violation of rights guaranteed by the EHA and the due process clause. The complaint set forth 28 U.S.C. § 1343(3), (4) as a jurisdictional basis. This statute is the jurisdictional basis for actions brought under 42 U.S.C. § 1983. The complaint specifically alleged a violation of plaintiffs' rights under 42 U.S.C. § 1983. Complaint, P123.

 Attorney's fees may be awarded to "the prevailing party" in actions to enforce a provision of section 1983. 42 U.S.C. § 1988. It is clear from the record in this case that the plaintiffs are prevailing parties to the extent that they succeeded in getting the defendants to hold hearings concerning Brian's educational program.

 To be a "prevailing party" within the meaning of section 1988, it is not necessary to win a victory after a trial. The Supreme Court has held that reaching a favorable settlement can be sufficient. Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980). In Maher, the Court cited with approval a Senate Report on section 1988 which said that "for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief. S.Rep. No. 94-1011, p.5 (emphasis added).

 It is evident that the commencement of this lawsuit brought about the defendants' decision to hold the hearings sought by the plaintiffs. Therefore, I find that the plaintiffs have prevailed.

 The next inquiry is whether the victory attained by winning the concession of September 1981 was a victory earned "in an action or proceeding to enforce a provision of [section] 1983." 42 U.S.C. § 1988. I find that it was. The issue is whether this aspect of the lawsuit is actually a case cognizable under the EHA, which does not hvae a fee-shifting provision.

 The structure and purpose of the EHA have been described in some detail by the Supreme Court (see, Smith v. Robinson, 104 S. Ct. at 3468-69; Board of Education v. Rowley, 458 U.S. 176, 180-83, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982)) and by the United States Court of Appeals for the Second Circuit (see, Quackenbush v. Johnson City School District, 716 F.d 141, 145-46 (2d Cir. 1983)). The Supreme Court and the Second Circuit have made it clear that plaintiffs cannot obtain attorney's fees ...

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