Agrippa Hymes, by His Next Friend and Guardian Ad Litem,eunice Hymes, Appellant, v. Harnett County Board of Education, Appellee, 664 F.2d 410 (4th Cir. 1981)

The parent of a child of elementary school age and a Board of Education faced a difficult problem, ultimately requiring resort to litigation for resolution. The child, shortly after birth had had inserted in his neck, to facilitate his breathing, a tracheostomy tube. The tube frequently required attention, while the child was at school, which the child, of tender years, could not on his own provide. The attention involved suctioning of mucus secretions from the tube.

Asked to address the problem by expanding facilities beyond what had theretofore been provided, the Board of Education, concerned about the strain on its capabilities and resources, opted instead for placement of the child in a homebound program. The litigation, designed to obtain restoration to the regular school program, followed. Remedies were sought under the Education of All Handicapped Children Act ("EAHCA"), 20 U.S.C. § 1401 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and under 42 U.S.C. § 1983. Included was a claim for attorney's fees. The merits of the dispute are not before us on appeal, the Board of Education not having appealed the substantive results. Attorney's fees are the crux of the appeal.¹ 

As the case developed, the Board of Education readmitted the child to the normal classroom program, pending resolution of the controversy. It did so by agreement, following a hearing, but prior to decision, on a temporary restraining order application of the plaintiff.² 

Thereafter, plaintiff, under EAHCA, won a state administrative proceeding, gaining a decision that the child was entitled to remain in the normal classroom, with the state obliged to provide suctioning of the tube. Plaintiff also obtained from the district court a declaratory judgment that the change in the child's placement without a hearing violated the EAHCA.

There are a number of givens with which we approach appellant's claims for additional attorney's fees:

1. Without giving the matter exhaustive attention, we can assume that the EAHCA does not itself provide for an allowance of attorney's fees to a prevailing party. The district judge so ruled, relying on Hines v. Pitt County Board of Education, 497 F. Supp. 403, 409 (E.D.N.C. 1980), appeal dismissed by agreement of counsel, 80-1676 (4th Cir. 1981), and Anderson v. Thompson, 495 F. Supp. 1256, 1268 (E.D. Wis. 1980). Neither party has advanced any argument that the district court erred in its determination.

2. Despite the absence of any provision for an award of attorney's fees in the EAHCA, nevertheless, if, under 42 U.S.C. § 1983, the EAHCA was within the term "and laws" in that remedial statute's grant of redress for "deprivation of any rights, privileges or immunities secured by the Constitution and laws," an award to the prevailing party of reasonable attorney's fees would be governed by 42 U.S.C. § 1988. Maine v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980).

3. In many cases the award would be available if the statute sued under was within the § 1983 term "and laws," even where relief actually had been obtained under some other pendent non-fee claim. Maher v. Gagne, 448 U.S. 122, 132-33 n.15, 100 S. Ct. 2570, 2576 n.15, 65 L. Ed. 2d 653 (1980).

4. However, a federal statute will not be deemed to fall within the term "and laws" in § 1983 "where the governing statute provides an exclusive remedy for violations of its terms." Justice Powell dissenting in Maine v. Thiboutot, 448 U.S. at 22, n.11, 100 S. Ct. at 2507, n.11.

5. Where a federal statute affords "detailed and specific provisions of the law" governing the remedies available and creates "a detailed administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims," it does not fall within the term "and laws" in § 1983. Accord Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372-73, 375-76, 99 S. Ct. 2345, 2349-50, 2350-51, 60 L. Ed. 2d 957 (1979). Novotny decided that the closely analogous 42 U.S.C. § 1985(c), like § 1983 purely remedial and nonsubstantive-see Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 99 S. Ct. 1905, 1915-16, 60 L. Ed. 2d 508 (1979)-does not afford a remedial framework for a case seeking enforcement of or compliance with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII, it was held, established the exclusive remedy for matters arising under it.

The rationale has been extended to preclude § 1983 relief in a case asserting violation of the federal Revenue Sharing Act, 31 U.S.C. §§ 1242, 1244. Meyerson v. State of Arizona, 507 F. Supp. 859, 864 (D. Ariz. 1981).

Still, those decisions do not quite solve our problem. They take care of cases at one or the other of the extremes, those that clearly do and those that clearly do not fit the "and laws" description of § 1983. We are, however, confronted with a hybrid. In almost all respects, the detailed statutory procedures of the EAHCA, calling for administrative and judicial actions wherever a child, parent, or guardian, on the one hand, or the educational agency, on the other, considers himself, herself, or itself aggrieved, cover, and prescribe the only route to relief anticipated by Congress.³  Cf. Scruggs v. Campbell, 630 F.2d 237 (4th Cir. 1980).

Yet there is a lacuna, in that no judicial relief route is provided in the EAHCA, to prevent an alteration in the educational placement of a child, pending administrative determination (and any appeal therefrom to the courts).

Our review satisfies us that the learned and able district judge correctly cut the Gordian Knot, when he decided that § 1988 would be available to the extent jurisdiction to obtain relief under § 1983 was available, but no more.⁴  The sole § 1983 relief was the accomplishment of return to the classroom placement, pending a due process hearing. For the relief achievable through the EAHCA administrative procedures, no applicable statute calls for an award of counsel fees, and, consequently, none may be allowed. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975).

The declaratory judgment concerned a violation of the EAHCA (as did the arguments advanced by the Board of Education that the settlement agreement returning the child to the normal classroom placement rendered pursuit of the relief moot). While a sophisticated argument can be made that jurisdictionally for a court to reach a point where it could make the declaration it would have to travel the § 1983 route, there being no declaratory judgment granting power conferred on the courts by the EAHCA, the decisive factor is that the relief was superfluous, once the settlement restoring the normal classroom educational placement was gained. Thereafter the hearings and appeals mandated by the EAHCA were assured. Whether moot or not (a matter not before us), a proceeding under § 1983 served no useful purpose, and should be ignored. The status of the declaratory judgment for purely EAHCA purposes is not an issue confronting us, since only attorney's fees engage our attention and that statute does not provide for them.

Judge Dupree, although he correctly ascertained the services for which, under § 1988, an attorney's fee properly could be awarded, did neglect to include any allowance for the time spent, in the district court and here on appeal, to defend the entitlement and to argue the amount. In that, he erred.⁵  To that extent we remand, in order that such an additional allowance may be considered for services in the district court and here under the rules applicable to § 1988. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968) (A prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust"); cf. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416-17, 98 S. Ct. 694, 697-98, 54 L. Ed. 2d 648 (1978).

Furthermore, the award of counsel fees heretofore made did not articulate the twelve factors set out in Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978). We, accordingly, remand that the fixing of the amount may be considered in that light.