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Bonar v. Ambach

August 14, 1985

NANCY BONAR, ON BEHALF OF DOUGLAS BONAR, AN INFANT; KAREN AMEY, ON BEHALF OF SCOTT AMEY, AN INFANT; MARTHA HAMANN, ON BEHALF OF SUSAN HAMANN, AN INFANT; LYNNE SOMMERSTEIN, ON BEHALF OF MICHELLE SOMMERSTEIN, AN INFANT; DONNA DOUGHERTY, ON BEHALF OF RICHARD DOUGHERTY, AN INFANT; RITA EVELT, ON BEHALF OF JOHN EVELT, AN INFANT, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED INDIVIDUALS, PLAINTIFFS-APPELLEES,
v.
GORDON M. AMBACH, AS NEW YORK STATE COMMISSIONER OF EDUCATION, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Western District of New York, Curtin, C.J., granting plaintiffs' motion for attorneys' fees pursuant to 42 U.S.C. § 1988 (1982). 599 F. Supp. 945 (W.D.N.Y. 1984). Because plaintiffs' claims were cognizable under the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (1982 & Supp. I 1983), no fee award was proper under section 1988. Thus, the judgment of the district court is reversed in part, vacated in part and remanded for reconsideration of defendant's fee application.

Author: Meskill

Before: MANSFIELD, OAKES and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This appeal represents another episode in the protracted litigation over attorneys' fees that followed the resolution of a dispute concerning the funding of special education programs for children with learning disabilities. The United States District Court for the Western District of New York, Curtin, C.J., held that plaintiffs, parents of children with learning disabilities, had prevailed over defendant New York Education Department in the underlying litigation. Distinguishing this action from Smith v. Robinson, 468 U.S. 992, 52 U.S.L.W. 5179, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984), the court awarded attorneys' fees. 599 F. Supp. 945 (W.D.N.Y. 1984). Because we disagree with the court's conclusion that Smith permits a section 1988 fee award, we reverse the judgment of the district court. Moreover, in light of the district court's failure to apply the correct standard, we vacate the court's denial of defendant's application for fees and remand for reconsideration.

BACKGROUND

Plaintiffs are parents of children who suffer from various learning disabilities. The children were enrolled during the 1979-80 school year in two programs operated by Erie County Boards of Cooperative Educational Services (BOCES #1, BOCES #2). BOCES are entities authorized under New York law to provide shared educational services to component school districts. N.Y. Educ. Law § 1950 (McKinney Supp. 1985). Among these BOCES services are "self-contained" classroom and "resource room" programs that offer educational services, intensive individual and small group instruction and some additional services to learning disabled (LD) children.

In or around April 1980, BOCES #1 notified its school districts that its LD classes would be terminated at the end of that school year and that it would not offer such classes in 1980-81. Its action was apparently taken as a result of a memorandum issued in April by the State Education Department (SED). Affidavit of Tricia Semmelhack, J. App. at 83. SED's memo, a modification of one sent to school and district superintendents in January, stated that payment of Public Excess Cost Aid for LD children was prohibited under N.Y. Educ. Law § 3602, subd. 19 (amended 1980). The memo also stated that LD aid would not be available for LD children in BOCES programs.

Plaintiffs filed suit against defendant Ambach, Commissioner of Education, in late April, alleging that he had order BOCES to terminate the LD programs. Plaintiffs sought a preliminary and permanent injunction against such termination, a declaratory judgment holding that the "incipient action" was illegal and in contravention of Ambach's duty to ensure that all children received a free appropriate public education under the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (1982 & Supp. I 1983) (EHA), and costs and attorneys' fees pursuant to 42 U.S.C. § 1988 (1982) and 29 U.S.C. § 794a (1982).

In early May, Chief Judge Curtin directed plaintiffs to amend their complaint by joining as defendants the two BOCES and some representative local school districts. Plaintiffs complied, joining both Erie County BOCES and seven school districts: Grand Island Central, Depew, Lancaster Central, Williamsville Central, Sweet Home Central, Lake Shore Central and Sloan [Cheektowaga-Sloan Union]. Plaintiffs' Amended Complain, J. App. at 20. In response to the court's order to show cause why it should not issue a preliminary injunction against defendants, id. at 35, representatives of the parties appeared before the Chief Judge on May 13, 1980. The court directed the parties to meet in a courthouse conference room to discuss possible settlement. At least three meetings occurred; however, no record was made of their content.

In mid-May, while these negotiations were in progress, SED's Assistant Commissioner for Educational Finance and Management Services sent a memo to school superintendents detailing the changes in state aid that had occurred as a result of a change in N.Y. Educ. Law § 3602, subd. 19. J. App. at 95. That statute, which formerly had barred the payment of Excess Cost Aid for LD students, was amended on April 3, 1980 to allow such payments for BOCES- and district-operated LD programs. This change was to become effective in the upcoming 1980-81 school year.

Thus, almost one month prior to the commencement of the present action, which plaintiffs claim was instrumental in inducing the state to finance the BOCES, the state had already acted to do so. See Ch. 53, New York Laws of 1980.

After BOCES #1 received the Commissioner's mid-May memo, its Board of Directors passed a resolution authorizing the district superintendent to submit the required applications for aid to SED on request from the component school districts. Semmelhack Affidavit, J. App. at 84. This resolution was reported to the other parties at the May 23 courthouse meeting and to Chief Judge Curtin soon thereafter.

Several additional meetings occurred in June and early July. During those weeks both BOCES prepared the appropriate request forms for Excess Cost Aid. These applications for 1980-81 aid were approved on June 26, 1980. On July 14 the Semmelhack affidavit on behalf of both BOCES was filed. The affidavit indicated that no further impediment to BOCES LD classes existed and asserted that the suit against both BOCES was moot.

Ambach, BOCES #1, BOCES #2 and the school districts moved separately during the summer for dismissal. After hearing oral arguments, the court dismissed the BOCES programs from the lawsuit on September 4 and 5. Subsequently, in a series of orders during the fall of ...


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