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December 3, 1986

J. G., by his mother and next friend Mrs. G.; M. W., by her mother and next friend, Mrs. W.; A. M., by his mother and next friend, Mrs. M., and K. M., by her mother and next friend, Mrs. M.; on behalf of themselves and all persons similarly situated, Plaintiffs,
THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT; JOHN DELVECCHIO; ARCHIE CURRY; FRANK WILLIS; IRENE FRUSCI; JOSEPHINE GENOVESE; KAREN GRELLA, and GARY SMITH, individually and in their official capacities as members of the Board of Education of the Rochester City School District; LAVAL M. WILSON, in his official capacity as Superintendent of the Rochester City Schools; BERNARD S. GREENBERGER, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; ROBERT LAYS, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; JOSEPH SALEMI, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; THE NEW YORK STATE DEPARTMENT OF EDUCATION; and GORDON M. AMBACH, in his official capacity as Commissioner of the New York State Education Department, Defendants

The opinion of the court was delivered by: TELESCA


MICHAEL A. TELESCA, United States District Judge

Plaintiffs filed this class action suit on behalf of handicapped students in the Rochester City School District in March of 1981. The Board of Education for the City Schools, the State Department of Education and Gordon Ambach, its Commissioner, were named as defendants. Plaintiffs allege that handicapped children were being denied appropriate public education designed to meet their special needs and sought relief under Education of All Handicapped Children Act, 20 U.S.C. § 1401, et seg., The Rehabilitation Act of 1973, 29 U.S.C. § 794, and Civil Rights Act of 1871, 42 U.S.C. § 1983. The merits of the case were resolved in a consent degree entered into between the plaintiffs and the defendant Board of Education on August 11, 1983. In March of 1986, plaintiffs moved to dismiss without prejudice their complaint against the defendants New York State Department of Education and Gordon Ambach, its Commissioner and for attorneys' fees pursuant to 42 U.S.C. § 1988. In an order dated July 8, 1986, I granted the motion to dismiss without prejudice but denied the motion for attorneys' fees. The denial was based on the fact that the consent degree represented relief under Education for the Handicapped Act ("EHA"), which did not provide for attorneys' fees, and was not based on the § 1983 cause of action. Plaintiffs filed an appeal of that decision.

 Before the appeal was heard President Reagan signed into law the Handicapped Children Protection Act of 1986, Public Law 99-372, which provides for attorneys' fees in EHA cases. The parties then stipulated to withdraw the appeal and moved for reconsideration of the attorneys' fees issue in light of the new law.


 This action was filed in March of 1981 before my predecessor the late Honorable Harold P. Burke. Upon Judge Burke's death, the case was transferred to the Honorable John T. Elfvin. Prior to answering the complaint, the defendants moved to dismiss based, inter alia, on the argument that plaintiffs were required, under EHA, to exhaust administrative remedies. In a decision dated March 30, 1982, Judge Elfvin denied the defendants' motion. Judge Elfvin held that 20 U.S.C. § 1415 provides a cause of action not simply for an appeal of a final administrative decision concerning evaluation or placement of a handicapped student but also for seeking relief for system wide violations of the Act. Thus he concluded that the plaintiffs need not have exhausted either federal or State administrative remedies before filing their legal action.

 Because it was my feeling that all of the parties in the case had the interest of handicapped children at heart, and because they all desired to work out a system of providing quality education to these deserving children I set in motion the process of working towards a settlement of the dispute. Although the parties were initially far from agreement, over a period of more than a year, and after six status conferences, the parties were finally able to reach an agreement. Meetings were held not only with attorneys but also with those individuals actually involved in the day-to-day implementation of education for the handicapped in the City of Rochester. State Commissioner of Education Gordon Ambach attended some of the status conferences as did Superintendent of Rochester City Schools Dr. Lavall Wilson.

 As I stated in my findings of fact and conclusions of law

 38. The proposed settlement when taken as a whole represents significant gains for handicapped children and their parents in the Rochester City School District. The provisions achieve the relief sought by the plaintiffs since what they sought were plans to remedy the problems which they alleged have existed in the system. The agreement provides such plans.

 The plan is contained in the consent agreement signed by plaintiffs and the defendant Board of Education. The detailed, comprehensive consent agreement contains 71 pages with 34 exhibits in an appendix.

 The agreement was detailed enough so as to provide for an operational model for the evaluation and placement of handicapped children, and yet flexible enough so as not to require the parties to return to this Court seeking contempt orders whenever a dispute might arise. The agreement was well received both by public opinion, and by Rochester City officials. *fn1" As I stated in Court when I accepted the proposed settlement, [it] "assures a great improvement in the quality of services to be afforded to the handicapped child in Rochester."

 The State defendants refused to enter into and sign the consent decree. One of the main basis for their objection was their insistence that plaintiffs' attorneys must first waive any right to attorneys' fees before the State would consider signing the consent agreement.

 At the time negotiations toward the consent agreement were taking place, this Court and the attorneys involved were working under the restrictions they understood to be imposed upon them by Prandini v. National Tea Company, 557 F.2d 1015, 1021 (3rd Cir. 1977) which states that a court should insist on settlement of the damages aspect of a class action suit separately before any discussion of attorneys' fees takes place. Malchman v. Davis, 706 F.2d 426 (2d Cir. 1983). Based on the constraints placed on the parties by this authority I directed them not to discuss attorneys' fees until after negotiation on the merits were complete. Plaintiffs' attorneys were scrupulous in avoiding any discussion of their fees during the entire lengthy negotiations process ultimately leading to the consent settlement. Indeed the settlement itself reflected the parties' understanding of this issue

 9. Because of the ethical considerations involved, the attorneys for the parties are unable to discuss the issue of attorneys' fees and other costs as part of the settlement agreement. The attorneys for the parties acknowledge that these issues remain to be decided.

 The six status conferences which I held with the parties supplemented the weekly negotiation sessions that occurred between April of 1982 and March of 1983. Although the State defendants were repeatedly invited and encouraged to attend these negotiation sessions, they chose not to participate until April of 1983 when the broad outlines of the agreement had already been developed by the plaintiffs and local defendants. The State was intransigent in its position that it would not participate in settlement discussions unless the other parties agreed that a settlement would require no modification of any existing or future regulation propounded by the State Department of Education and that plaintiffs' attorneys agree to waive any right to attorneys' fees against the State defendants. The parties were able to comply with the State's first demand and this was reflected in my findings of fact and conclusions of law which I issued upon acceptance of the consent settlement:

 44. Nothing in this consent judgment shall be construed to nullify any present provision of any New York State statute or any regulation of the Commissioner of Education, or any such future provision which is not inconsistent with federal statutory or regulatory provisions governing the education of children with handicapping conditions.

 However, based on the ethical constraints, legal authority, and my own instructions plaintiffs were unable to discuss with the State defendants the question of attorneys' fees prior to the settlement on the merits. As a result the State defendants refused to enter into the settlement process and the consent decree was signed only by plaintiffs and local defendants.

 After the plan had been implemented and was working in the school system for two school years, plaintiffs returned to this Court seeking dismissal without prejudice of their claims against the State defendants and for attorneys' fees against both the local and State defendants. In a class action suit, even if the class has not been certified, Fed. R. Civ. P. 23(e) requires the District Court to approve dismissal of any action so as to insure that unrepresented potential class members are not prejudiced. Shelton v. Pargo, Inc., 582 F.2d 1298 (4th Cir. 1978). In making its arguments, plaintiffs stated that although the State defendants were not parties to the consent decree and further that they had not produced a written plan to improve the monitoring of the local school board, yet there was in fact an improvement in the monitoring and the consent decree had brought the local school board into line with State regulations. Plaintiffs argued that were they to continue to and prevail at trial, they could obtain no more than they already had, that is, "a consent judgment requiring correction of all violations and an increased and a better focused monitoring efforts by the district and State defendants." (Plaintiffs' Memorandum of Law, p. 7.)

 In July of 1986, I granted plaintiffs' motion for dismissal without prejudice of their complaint against the State defendants but denied their motion for attorneys' fees. The denial of attorneys' fees was based on Smith v. Robinson, 104 Supreme Ct. 3457 (1984), which held that where plaintiffs could receive their full relief under the EHA they therefore could not also recover under 42 U.S.C. § 1983. In a settlement which could be interpreted as the plaintiff having been a prevailing party, if the relief which plaintiff obtained was available under EHA then the courts will not allow recovery of attorneys' fees based on § 1983 for "unaddressed constitutional claims." Smith v. Robinson, supra, at 3465. In short, the essence of the relief afforded the plaintiffs was pursuant to EHA and not § 1983 and fees therefore could not be awarded pursuant to § 1988.

 Plaintiffs filed a timely appeal of the denial of their motion for attorneys' fees pursuant to 42 U.S.C. § 1988. While the appeal was pending Public Law 99-372, Handicapped Children Protections Act, was passed by Congress and became law. That act amends the EHA to explicitly authorize an award of attorneys' fees to the prevailing plaintiffs who obtain relief under the EHA. Based on the enactment of PL 99-372, plaintiffs and defendants stipulated to a withdrawal of plaintiffs' appeal, subject to reinstatement, after this Court's decision of a motion to reconsider the attorneys' fees question in light of PL 99-372.

 In opposition to the motion, the local defendants have argued that the EHA, even as amended, requires the plaintiffs to have exhausted administrative remedies before they can be considered a prevailing party eligible for attorneys' fees. The State defendants argue that plaintiffs in this case cannot be considered to have prevailed against the State defendants because the State defendants did not enter into the consent decree and no other form of relief was granted against them.


 A. Exhaustion of Administrative Remedies

 Congress passed the Education for All Handicapped Children Act of 1975 in response to what it viewed as the ...

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