Warren E. Burger: 71-653, Gibson against Berryhill. Mr. Billups?
Richard A. Billups, Jr.: Mr. Chief Justice and members of this Honorable Court. This is a case where charges were pending against the plaintiff optometrists, charging them with having violated certain Sections of the optometry law.
Warren E. Burger: Would you raise your voice a little Mr. Billups.
Richard A. Billups, Jr.: This is a case where charges were pending against the plaintiff optometrists for having before the Alabama State Board of Optometry, after having scheduled them for a hearing before this Board of Optometry and before the hearing, this suit was filed to enjoin the Board from hearing the charges and the Board voluntarily agreed to withhold further action until this case has been finally disposed off. The plaintiffs in their complaint allege a violation of the civil rights of the optometrists under Section 1983 of the Federal Civil Rights Act on the part of the defendant, Board members and later filed a second cause of action alleging that Sections 192 and 206 of the Alabama optometry law were unconstitutional and requested a hearing before a three-judged court which was granted. The defendants assert that there was no misconduct on their part and so answered and also filed a motion to dismiss the case. The issues were joined on a stipulation of facts and briefs presented to Court which granted an injunction against the State Board, its members and successors in office from hearing the charges and in addition, held Section 192 and 206 unconstitutional on the theory that said Section 192, that a Board member must be eligible for appointment, had to be a member in good standing of the Alabama Optometric Association. And that Section 206 of the Optometry Law while providing the procedure for handling and hearing any charges filed before it was unconstitutional because even though it provided for an appeal from an adverse decision, it failed to spell out supersedeas pending on appeal. The defendants answered that these two Sections of the Optometry Law had been held to be constitutional by the Alabama Supreme Court in a prior case of McCoy versus Wood and was not violative of the federal constitution. The holding of the Court, of the trial court, if sustained, will destroy virtually every state created licensing Board. Because in most instances, they have the same general provision such as Section 192 that Board Members must be members of the association to be eligible for appointment, and 206 of the Alabama law which provides for the handling of charges and in the Alabama law 206, it provides that from an adverse ruling, the optometrist can appeal to the Circuit Court of his home county.
Byron R. White: This a case (Inaudible)
Richard A. Billups, Jr.: Yes sir, yes sir. Now, it does not going to say how the supersedeas can be obtained, but in Alabama, the Courts have held that any court, including the Supreme Court can grant supersedeas and so this holding of the trial court would as to say where it limits the -- those who can serve on the Board to members of the association or as in some states where they are recommended by the association to the governor for appointment, if permitted to stand would virtually destroy every regulatory licensing Board created by statute.
Byron R. White: Is the appeal -- the administrative hearing proceeding goes on then -- and the -- if there's an adverse decision, there is appeal to the Circuit Court, to the state Circuit Court, right?
Richard A. Billups, Jr.: Yes sir.
Byron R. White: Is that on the record or is it de novo?
Richard A. Billups, Jr.: In Alabama, there is some question as to whether it’s on the record or de novo. The only appeal with which I’m familiar was one de novo.
Byron R. White: Well, there is a -- there are time limits set for the appeal?
Richard A. Billups, Jr.: No sir, no sir. This has -- it will be appealed to the Circuit Court of the residence of the defendant or of the accused.
Byron R. White: But if you waited two years, you could still appeal it in Alabama?
Richard A. Billups, Jr.: There’s no limit and the law itself as I read it and as I remember it.
William H. Rehnquist: Would you be barred by the latches at some point?
Richard A. Billups, Jr.: I beg your pardon?
William H. Rehnquist: Might you not be barred by latches at some point?
Richard A. Billups, Jr.: That’s -- that would be a good question, but there’s nothing in the optometry law that so holds or touches on that topic.
Byron R. White: If you want a supersedeas or if you wanted -- if you want to practice while you appeal you better move. I take it --
Richard A. Billups, Jr.: Well --
Byron R. White: -- you better move faster -- unless you’re going to Court and get a supersedeas, you’re out of business?
Richard A. Billups, Jr.: Well, that is true sir except --
Byron R. White: Well, isn’t it -- isn’t that true as in the -- isn’t the decision of the Board final unless he gets accepted and gets it set aside?
Richard A. Billups, Jr.: Unless it’s appealed, unless it's appealed. Now, but during the course of the proceedings and I will get the -- and in order to cover that point that you have just raised, the state board adapted a regulation stating that any event of an adverse decision, the state board would take no action or hold the matter in abeyance until the appeal had been completed and determined. So, that then would not even require a supersedeas because the regulation of course has the effect of law.
Byron R. White: Well, they must have contemplated some time limit, wouldn’t they? They wouldn’t say, we won’t take any action and then lets you not take any actions forever.
Richard A. Billups, Jr.: No sir. There was no time limit in the regulation. Now, these charges grow out of a series of events that have transpired over a number of years and while these dates are set out in the various pleadings, I believe it would be helpful for this Honorable Court to know the sequence because among other things, the Board is charged with harassment of the defendant optometrist because of the fact that these charges laid dormant for a long number of years. But for many years and then from the adoption of the optometry law in 1990, Section 210 of the optometry law permitted a retailer or a store to maintain an optometric department wherein eyes were examined and glassed fitted, provided there was an optometrist in charge of it. That’s what's sometimes referred to as corporate practice. Now, on August 4th, 1965, Section 210 was repealed in its entirety, which we contend, lets it fall back on the general rule that’s well recognized that in the absence of statutory authority, a person cannot practice a profession through -- a corporation cannot practice a profession through the employment of a licensed professional. And we’ve had optometrists and physicians involved in these cases. In August of 1965, shortly after this repeal, the State Board notified all optometrists to comply and offer their assistance. Then, on October 26, 1965, charges filed by the Alabama Association with the Board were filed which included charges against these plaintiffs below who were employed at that time by Lee Optical Company. A short time later, the state board filed an injunction suit against Lee Optical Company and the employed optometrists, including one physician, alleging that the optometrists were aiding and abating Lee Optical in the unlawful practice of optometry and by so doing, they themselves were unlawfully practicing optometry. Unfortunately, there was no precedent in Alabama for the filing of such an injunction suit in any of the professional fields perhaps because of the fact that the Section 210 which permitted corporations to function as they did discouraged others in filing any suits in any other field. Now, then the defendants, all of them filed a motion to abate and this motion was sustained because as I say, there was no precedent for the filing of such an injunction suit. Now, in other states, there is a statutory authority for filing of such suits. Then the defendants filed a motion to abate and the Court sustained that motion to abate and an appeal was taken. Now, then, in September of 1967, the Alabama legislature passed Act Number 509, giving all boards the right to bring an injunction suit against anyone unlawfully practicing in their field and made it retroactive.
Warren E. Burger: We’ll resume at that point in the morning Mr. Billups.
Richard A. Billups, Jr.: Yes sir.


Warren E. Burger: We will hear arguments first this morning in Smith against Robinson. Mr. Larson, you may proceed whenever you're ready.
E. Richard Larson: Thank you, Mr. Chief Justice, and may it please the Court: This case involves Petitioners' entitlement to attorney's fees under 42 U.S.C. Section 1988 in this action to enforce constitutional rights through Section 1983. This case also involves fee entitlement under Section 505(b) of the Rehabilitation Act in this action brought to enforce and to charge a violation of Section 504 of the Rehabilitation Act. As in Vlum v. Stenson, decided unanimously by this Court last week, resolution in this case begins and ends with the legislative history accompanying these fee provision, a legislative history in which Congress stated that plaintiffs need not prevail on a substantial constitutional claim or on another overlapping fee claim in order to be entitled to fees. This case we submit is further controlled by this Court's unanimous decision in Maher v. Gagne, a decision in which this Court not only conclusively applied the foregoing legislative history, but indeed it is the same legislative history that is applicable here. And in that case this Court held that a plaintiff who never obtained a ruling on her substantial constitutional claim nonetheless was entitled to fees under Section 1988. In this case, Petitioner Tommy Smith is a physically and emotionally handicapped child who walks with the aid of leg braces and crutches due to cerebral palsy. Tommy was eight years old when this litigation was commenced in 1976. Tommy at that time was enrolled in a special education day program approved by the Respondents and paid for by the school committee as part of their education program. This litigation was commenced when the local school committee, with the subsequent approval and support of the Respondents, proposed to exclude Tommy from receiving an education solely because of the nature of his handicap. Respondents' consistent litigation position throughout this litigation has been that the school committees, including the local school committee here, and the Respondents had no responsibility for educating Tommy or similarly situated persons who had an emotional handicap. Petitioners' complaint alleged three substantial federal claims. Initially, they were constitutional claims. Indeed, the opening complaint alleged only constitutional claims. This was a due process claim... the Petitioner was being excluded, being denied an education, with no hearing whatsoever... and also a straight equal, protection claim... that Petitioner was being denied an education, excluded from an education, in violation of equal protection. Petitioners also alleged a federal claim under Section 504 of the Rehabilitation Act, the language of which specifically precludes the exclusion of a person from receiving federal benefits in a federal program, a program supported by federal moneys, solely on the basis of handicap. A third federal claim was also alleged in this case, the '75 Handicapped Act. After the Act became effective and subsequent to plaintiff's success on their constitutional claims, plaintiffs added the claim that the Respondents had violated the Education for all Handicapped Children Act of 1975. Now, there is no question in this case about the appropriateness of the education that was designed for Tommy. It's simply a question of exclusion versus non-exclusion. There also is no question in this case Petitioners in fact prevailed. They prevailed initially and throughout the litigation on their due process claim, and they ultimately prevailed, primarily as a result of a certified decision by the Rhode Island Supreme Court.
William H. Rehnquist: Mr. Larson, you say that your clients prevailed throughout the litigation on their due process claim. I didn't read Judge Campbell's opinion is necessarily agreeing with that.
E. Richard Larson: The characterization of Judge Campbell's opinion... or in the opinion, is that we ultimately prevailed as a matter of the Education for all Handicapped Children Act. Judge Campbell does not disagree whatsoever that throughout the course of this litigation it was the preliminary injunction entered on the due process claim pursuant to which plaintiffs through the course of the litigation prevailed.
William H. Rehnquist: What is the difference between prevailing through the course of the litigation and ultimately prevailing? I take it from your argument you see those as two different things.
E. Richard Larson: No, I was saying that there is no question on this record whatsoever, Justice Rehnquist, about the fact that the plaintiffs prevailed. Under Hensley--
William H. Rehnquist: Well, but the Court of Appeals seems to have held otherwise.
E. Richard Larson: --Oh, no. I don't believe that there is any question that the Court of Appeals viewed the plaintiff as having prevailed. Indeed, in the first decision to the First Circuit--
William H. Rehnquist: Well, I think the Court of Appeals agreed that the plaintiff prevailed without a doubt. But I read the Court of Appeals opinion as intimating that you prevailed on the EAHCA.
E. Richard Larson: --But that is belied by the record, Your Honor.
William H. Rehnquist: But then you're arguing about a question of fact, really, where the Court of Appeals is against you, and we ordinarily don't review questions of fact.
E. Richard Larson: Justice Rehnquist, it doesn't matter with regard to the statutory threshold that plaintiffs must meet through Hensley v. Eckerhart how plaintiffs happened to prevail here. The matter of fact as found by the district court is that plaintiffs did prevail. Indeed, our opponents at the fee hearing admitted that we had obtained the objective sought in the lawsuit and that we accordingly were the prevailing party--
William H. Rehnquist: Well, but I don't suppose anyone disputes that, but I think what the First Circuit says is you prevailed on the EAHCA count; that's an all-embracing statutory claim that really covers everything you could have gotten on your constitutional counts, and since that doesn't provide for attorney's fees you can't get them.
E. Richard Larson: --The First Circuit's decision on the fee issue is different from the First Circuit's decision on defendant's appeal on their motion to dismiss. On the first decision, the First Circuit states that plaintiffs have obtained the objective of their lawsuit as a matter of state law. That's on the merits. Subsequently in the collateral fee proceeding, the First Circuit basically stated that the plaintiffs have prevailed both as a matter of state law and as a matter of the Education for All Handicapped Children Act, ultimately prevailed.
Lewis F. Powell, Jr.: Mr. Larson, did not the district court, after the decision of the state supreme court, say that you had prevailed as a result of the state decision?
E. Richard Larson: The district court--
Lewis F. Powell, Jr.: It did?
E. Richard Larson: --in its final order on the merits held that we had obtained the objective of our lawsuit.
Lewis F. Powell, Jr.: That you'd obtained all the relief you sought--
E. Richard Larson: That's correct.
Lewis F. Powell, Jr.: --as a result of the state decision.
E. Richard Larson: That's correct.
Lewis F. Powell, Jr.: And was it not after that decision was made by the district court that you filed your second amendment and alleged a 1983 action?
E. Richard Larson: No, that's not correct, Your Honor.
Lewis F. Powell, Jr.: When did you first file that?
E. Richard Larson: The second amended complaint was filed after the summer of 1980, the June 1980 decision by the Rhode Island Supreme Court.
Lewis F. Powell, Jr.: That was after--
E. Richard Larson: That was one year before the final order on the merits.
Lewis F. Powell, Jr.: --But it was after the decision of the supreme court of the state.
E. Richard Larson: That's correct, and that nonetheless related back to... I mean, it was a motion to file a second amended complaint, which was granted and which relates back.
Lewis F. Powell, Jr.: But the point is, hadn't you obtained all the relief you sought before you filed your amended complaint?
E. Richard Larson: Not necessarily. On certification, the decision by the Rhode Island Supreme Court is essentially an advisory opinion. There was a period in which we had to determine whether or not there indeed was going to be compliance. Now, there was never any injunction entered against the Respondents directing compliance. There was a January 1981 injunction issued against the... consent injunction issued against the school committee requiring their compliance. It was indeed ascertained that compliance would be obtained. Plus there was the outstanding matter of attorney's fees. The defendants tried to get out of this lawsuit because they saw attorney's fees coming.
Lewis F. Powell, Jr.: But was there a substantial issue left after the decision of the state supreme court?
E. Richard Larson: The matter of compliance, yes, plus there was also the matter that on this record in this case the state hearing officer decision was still on the record in this case, and that plaintiffs had a right to have that decision basically stricken or recognized as not controlling, and that is indeed something that happened in the final order.
Sandra Day O'Connor: On the same point, I also fail to understand what happened and why there was a year's worth of litigation after the state supreme court issued its ruling, which furnished the only basis for the ultimate ruling in the federal court.
E. Richard Larson: It's true, Justice O'Connor, that a year in time passed. There was not a year of litigation. Immediately after the state supreme court opinion, the motion for amended complaint was filed. That was granted shortly thereafter, basically in July. The amended complaint was then actually filed in the fall, and then we're into the winter, when motions began to be filed to complete the matter of relief in this case. During that period of time, the Petitioners and the school committee worked out a consent decree, basically, which included the award of attorney's fees against the school committee. The state, however, was not so sure that it was going to go along, and it looked like further litigation might be necessary against the Respondents in this case.
Sandra Day O'Connor: On what, the fee?
E. Richard Larson: Well, basically the Petitioners wanted a ruling on federal law. They of course dig not obtain it because the district court judge in his final order said that, we don't have to reach the federal law issues because we... I recognize, the district court recognizes, the plaintiff has obtained the objective of the lawsuit.
Sandra Day O'Connor: You made two different types of due process claims during the course of the litigation.
E. Richard Larson: That's correct.
Sandra Day O'Connor: One was against a local school committee, and that was the basis of the original--
E. Richard Larson: Well, but that was also against the--
Sandra Day O'Connor: --injunction, I guess, the preliminary injunction.
E. Richard Larson: --Yes, an injunction which was continued also against the state after the state was brought in.
Sandra Day O'Connor: Yes, but that was really a complaint concerning the termination of funding pending resolution of the dispute against the school committee.
E. Richard Larson: Well, no. The termination of Tommy's education.
Sandra Day O'Connor: The funding for the child's education.
E. Richard Larson: That's correct.
Sandra Day O'Connor: All right. And then the second due process claim was against the Respondents here and had to do with their serving as hearing officers in your dispute with the school board.
E. Richard Larson: It was a Gibson v. Berryhill type claim, challenging the bias in the process itself, yes.
Sandra Day O'Connor: And no relief was granted under that claim.
E. Richard Larson: That's correct. But the first claim, the due process claim, equally runs against the Respondents as well because of the modified preliminary injunction that was subsequently entered after the Respondents were in this case.
Sandra Day O'Connor: Well, but didn't the terms of the preliminary injunction run only against the school committee?
E. Richard Larson: Initially, yes. But of course, the state was involved in the funding of this process. the state has the responsibility for enforcing state law.
Sandra Day O'Connor: Well, but the terms of the injunction did not run against these Respondents, did it?
E. Richard Larson: As state actors, acting in cooperation with the local defendants--
Sandra Day O'Connor: Well, did it or not, in terms of the words of the preliminary injunction?
E. Richard Larson: --In the words of the preliminary injunction, it's only against the school board.
William H. Rehnquist: Thank you. Well, you said a moment ago that it ran initially only against the school. I gathered from your answer that perhaps later it was amended to run--
E. Richard Larson: Yes.
William H. Rehnquist: --Is that what you meant?
E. Richard Larson: It was the--
William H. Rehnquist: Could you answer the question?
E. Richard Larson: --Yes. The original preliminary injunction was directed solely against the school committee, because indeed the Respondents had not yet been sued, and the terms of the preliminary injunction were to maintain Tommy in his educational program during the pendency of the exhaustion of the administrative procedures. Thereafter, it was extended because the administrative procedures and--
William H. Rehnquist: I don't think you're answering my question. I asked you, when you answered initially to Justice O'Connor, I got the implication that at some later point the injunction was amended--
E. Richard Larson: --Yes, it was.
William H. Rehnquist: --to run against the state defendants as well.
E. Richard Larson: Well, the state defendants--
William H. Rehnquist: Now, is that true or not? Is that correct or not?
E. Richard Larson: --As Justice O'Connor pointed out, it did not name the state in the injunction.
William H. Rehnquist: So it never did run in terms against the state defendants?
E. Richard Larson: In that they were co-actors responsible in this litigation--
William H. Rehnquist: Were they named in the injunction?
E. Richard Larson: --No.
Harry A. Blackmun: Mr. Larson, could I bring you back to something you started off with, and that was your reference to Maher against Gagne.
E. Richard Larson: Correct.
Harry A. Blackmun: The First Circuit mentioned it once in its opinion, as I recall.
E. Richard Larson: That's correct.
Harry A. Blackmun: Just once, and sort of by a passing way. Do you think they overlooked it or didn't want to face up to Maher against Gagne or what?
E. Richard Larson: I certainly think--
Harry A. Blackmun: Maybe I should ask your opponent that question.
E. Richard Larson: --Well, I certainly do believe they overlooked it. There was no analysis of it whatsoever. Plus, of course, in Maher this Court set out the legislative history, the relevant legislative history of Section 1988, and the First Circuit never mentioned that legislative history whatsoever. I think they may have been unaware of the legislative history or unwilling to look at it.
Sandra Day O'Connor: Well, if we thought that was error and vacated the opinion and sent it back, would it be open in remand for the application of the Hensley principles announced last term?
E. Richard Larson: The Hensley principles, even pre-Hensley, were applied by the district court. For example, Justice O'Connor--
Sandra Day O'Connor: Well, it doesn't appear to have been.
E. Richard Larson: --Well, Justice O'Connor, you referred to the fact that the substantive due process claim with regard to the Gibson v. Berryhill issue was not one on which claims prevailed. The district court deducted the fees or the time spent on that issue from the fee award that was granted. There is a type of Hensley issue still pending in the First Circuit. I wouldn't really consider it a Hensley issue, but it has to do with whether or not the time that was spent in the administrative proceeding and the state court proceeding is correctly time which should be compensated in this litigation. That was not addressed by the First Circuit in this appeal because of the way the First Circuit disposed of the fee entitlement issue. That issue, of course, would be open on remand.
Lewis F. Powell, Jr.: Mr. Larson, I'm afraid we've not given you much time to argue the case, but the point that I asked you about before is central to my own understanding of the case. Let me ask you one more question. After your view had prevailed in the state supreme court and you of course had to go back to the district court because the questions had been certified to the state court--
E. Richard Larson: That's correct.
Lewis F. Powell, Jr.: --did you ask the district court on your return to it to give you any relief that the state supreme court had not given you?
E. Richard Larson: There was a motion filed with regard to the due process claim involving the lack--
Lewis F. Powell, Jr.: When you say a motion--
E. Richard Larson: --of impartiality--
Lewis F. Powell, Jr.: --a motion filed, was this in your complaint that had already been filed some time before, or did you... what did you request specifically when you went back?
E. Richard Larson: --We requested that the hearing process itself be declared violative of due process because of interested persons acting as hearing officers. We sought further relief on that and we were denied that. That is in the complaint and it was part of a separate motion subsequent to the Rhode Island Supreme Court's decision.
Lewis F. Powell, Jr.: The district court, though, still said that you had won everything you ever sought?
E. Richard Larson: There is no question that the major issue in this case was Tommy's education. I think the district court was correct in its finding of fact that plaintiffs had obtained the result sought, and I think the First Circuit in its appeal on the merits was correct in also making that same finding of fact.
Lewis F. Powell, Jr.: And you did not file your 1983 claim until after, according to the district court, you had won everything the plaintiff sought?
E. Richard Larson: No, the 1983 claim was the first claim in the case.
Lewis F. Powell, Jr.: Yes, but you've been paid for that work.
E. Richard Larson: No. I mean, the 1983 equal protection claim, which the trial court found to be substantial, is a claim that is encompassed within the initial complaint that was filed, yes, against the school committee. But thereafter the Respondents came in and stood in the shoes of the school committee. We know the responsibility of the state for education and it came in and the litigation continued thereafter.
Lewis F. Powell, Jr.: Well, why was it necessary, then, for you to amend your complaint, the second amended complaint?
E. Richard Larson: The first amended complaint added the Education for All Handicapped Children Act claim, because that had then become an effective federal law. And the third amended complaint added the 504 claim.
Lewis F. Powell, Jr.: And when did you add the Section 1988 claim?
E. Richard Larson: The Section 1988 claim was in the first amended complaint and also in the second amended complaint. Section 1988 with regard to fees, as a matter of fees law, need not necessarily be pled. There was a boilerplate request for such further relief in the first complaint, and that in the Court of Appeals has been held as sufficient to encompass a request for fees. As I have stated, I believe that because of the legislative history and because of the unanimous decision by this Court in Maher v. Gagne, this case is conclusively... or it should be resolved in favor of Petitioners here.
Sandra Day O'Connor: On that point, Mr. Larson, the Court didn't discuss, and I don't believe the briefs do, cases such as Brown against the GSA and Pryzer versus Rodriquez, where this Court has said that a detailed comprehensive statute precludes remedies under the broader 1983 type claim. And I wonder if that's applicable here with the Education for the Handicapped Act.
E. Richard Larson: We believe that those cases are inapposite.
Sandra Day O'Connor: Why?
E. Richard Larson: The First Circuit here applied Middlesex County. Middlesex County, with its comprehensiveness test, applies only to the "and laws" issue. There is no "and laws" issue here. The Education for All Handicapped Children Act is not being proposed to be asserted through the 1983. It simply is not relevant. Nonetheless, a little bit more relevant, but still inapposite, are the preemption doctrine and the implication by... repeal by implication doctrine. All of those doctrines, both the preemption doctrine and the repeal by implication doctrine, as well as the Middlesex County comprehensiveness test, bottom out on the legislative intent. Each of those tests is based upon the legislative intent. Now, first of all with regard to fees--
Sandra Day O'Connor: Can't you define legislative intent by the fact that the Congress has enacted a very specific, detailed plan for these education for the handicapped provisions, and refer to that instead of 1983?
E. Richard Larson: --No. Neither preemption nor repeal by implication allows this Court to use a test without going to the legislative history. The test is a substitute for the legislative history. For example, in Brown v. GSA the Court looked at the legislative history and what had Congress done in 1972. It had said there is no remedy for employment discrimination in the federal sector because of sovereign immunity, and it cited Blaze v. Moon in the Fifth Circuit, it cited a number of other sovereign immunity cases. Congress was aware from its perception that it was operating on a blank sheet, and it thereby enacted comprehensive legislation. The legislative history here is totally different in several respects. First of all, with regard to fees, the fee statutes at issue here were enacted, Section 1988 was enacted, in 1976, a year after the '75 Act. Section 505 was enacted three years later, in 1978. I mean, there is no doctrine of repeal by implication or preemption which allows a Congress sitting in 1975 to preempt acts that the Congress takes in the future. With regard to the substantive rights, it is even less likely that Congress could have preempted, for a variety of reasons. First of all, this is a spending statute which is optional with the states. It's almost as if, to follow through on this preemption or repeal by implication argument, if it's worth anything, that Congress delegated to the states whether or not the states wanted to repeal the applicability of 504. So if the state opts out of this, they're covered by 504. We know that New Mexico is not covered by the 1975 Handicapped Act. Yet 504 and 1983 fully apply there. I mean, it would be absolutely unheard of for Congress to delegate to the states the repeal of federal statutes, much less the enforcement of constitutional rights. And finally, of course, what is ultimately controlling is the legislative history itself. The legislative history... the Senate report alone has 22 paragraphs spanning 16 pages discussing the existence of preexisting and concurrent remedies in this situation. There is absolutely full awareness of these preexisting remedies, and the case couldn't be farther away from Brown v. GSA. This is rally a Jones v. Mayer type of case or a Johnson v. REA type of case. Congress was aware and did not at all preempt or repeal by implication those remedies. There has to be a clear statement. It is not here whatsoever. We believe, on the basis of Maher v. Gagne, that this case should be conclusively resolved in Petitioners' favor. In Maher there was a substantial constitutional claim which was not addressed. There was also a substantial federal statutory claim which did not necessarily have a fee authorization attached to it. The plaintiffs were determined to have passed that statutory threshold of having prevailed without ever receiving an adjudication on their constitutional claim, and this Court unanimously held that plaintiff, because of the fact that she had raised a substantial constitutional claim, was entitled to fees under Section 1988. And the same result flows here, not only under Section 1988 but also under Section 505. In conclusion, we believe that there is little question on this record and as a matter of law that the First Circuit erred here and the plaintiffs are entitled to fees. Now, as Justice O'Connor pointed out, this doesn't have anything to do with the amount of fees, which is still an issue or will be an issue on remand in the First Circuit. I would like to reserve the remainder of my time, unless there are any questions.
Warren E. Burger: Mr. Avila.
Forrest L. Avila: Mr. Chief Justice and may it please the Court: I think that the Court has indicated some interest in, in essence, the travel of this case, so I want to explain a little bit of the history of this so we see how this case came into focus. I want to point out here that I represent the Commissioner of Education and not the local school committee in this action. What happened--
Harry A. Blackmun: You mentioned travel of the case. Is this a Rhode Island expression?
Forrest L. Avila: --That's I think common in the First Circuit, too. I think I see it all the time.
Harry A. Blackmun: We've come across it in one other case.
Forrest L. Avila: I was not aware that it was an unusual expression, Your Honor. It's always been our usual term for it.
Harry A. Blackmun: You never find it in California, anyway.
Forrest L. Avila: In this case, long before the Commissioner of Education became involved in it, what happened was the local school committee agreed that the child concerned should be placed at Bradley Psychiatric Hospital, and so the school committee did that. Then the school committee looked at the situation and reevaluated it and made a determination that there was another... there was a state agency, the Rhode Island Department of Mental Health, that it felt under certain statutes was responsible for this child's... or should be responsible for educating or placing this child at Bradley Hospital. So the school committee told the parents that the school committee was not going to fund that placement, not going to provide any more funds for that placement, which of course would result in that placement being ended. At that point what happened in the case was the plaintiffs in this action filed a complaint in the federal district court, and I don't believe that this first complaint speaks of equal protection. If I remember it correctly, I think it solely speaks to procedural due process, and more particularly, the basic argument of this complaint was simply that Rhode Island regulations, Rhode Island special ed regulations, which even though the Handicapped Act was not yet in effect apparently we had some pre-knowledge of what these regulations would look like, so it looks as if the regulations we were using at the time really matched the ultimate federal handicapped regulations. Under those regulations, a placement couldn't be changed unless the parents consented to it or unless they were granted a hearing and as a result of that hearing a change was ordered. Well, what happened in this case was the plaintiffs felt that they weren't going to be granted that hearing, even though they had asked for it, so they filed the complaint in federal district court. The federal district court judge looked at the complaint and he said, yes, under Rhode Island regulations you have a right to a hearing before the placement can be terminated, and this funding, potential funding dispute between the state agencies was exactly that sort of funding dispute or that sort of change in placement dispute that should be adjudicated through the available state administrative procedures. So the federal judge issued a preliminary injunction to keep the child at Bradley Hospital at the expense of the school committee and then required the school committee to conduct a due process hearing as required by Rhode Island administrative special education regulations, and also that opportunity should be given the parties to appeal to the Commissioner of Education. So that's what happened in this case, Your Honors. There was a hearing before the local school committee, an administrative sort of hearing. The school committee took evidence and looked at the matter, and they resolved in a written decision that they were not responsible because a state agency was responsible. That decision was then appealed to the Commissioner of Education, who held a de novo hearing, acting as a hearing officer, and listened to both sides. Now, the Rhode Island Supreme Court in a case... and by then, by the time the matter reaches the Commissioner of Education, the Handicapped Children's Act is in force. And you'll note if you look at the record, one of the complaints the plaintiffs had against the Commissioner, and an issue on which they lost, they were arguing that he couldn't act as a hearing officer under the Education for all Handicapped Children's Act. So there is no doubt here, the plaintiffs have even agreed, that this was a hearing pursuant to the Education for all Handicapped Children's Act at that stage. What happened was, the Commissioner heard the matter. And the Rhode Island Supreme Court had indicated at the time that this was a difficult question and it had not yet resolved the issue. So that left the Commissioner in the position of having to make his own decision. So what the Commissioner did was, he found that the Rhode Island Department of Mental Health should have been educating this child. That was his decision. Now, what happened after that was the plaintiffs appealed the matter to federal district court. They took the matter up there, arguing that, no, it was not the Department of Mental Health, but rather the school committee, that should be responsible. Now, with that Rhode Island Supreme Court prior precedent that I mentioned, indicating that this was a difficult issue, I was involved in the case at that point and I suggested to the court that the matter, the question, be certified to the Rhode Island Supreme Court for a determination as to who was responsible and who wasn't. And so then the Rhode Island Supreme Court came down with a decision indicating that, that in fact the local school committee was responsible. So in this case I would suggest that what you really have, it's not a normal special ed case. What you have is a state level hearing officer who heard a case and he decided the case in a way that ultimately was not... that was held to be wrong by the Rhode Island Supreme Court. Now, because he--
Byron R. White: As a matter of state law?
Forrest L. Avila: --As a matter of state law, Your Honor. And the strange thing about... I shouldn't say... the interesting thing about this case, if you read one of the later opinions of the district court in this matter, he said... what finally happened in this case was, once the Rhode Island Supreme Court rendered its decision, which from my perspective ended it... I don't think you can presume that state agencies are not going to follow their own supreme court. Plaintiffs, though, perhaps wishing to have some sort of order on the record, looking forward to some sort of attorney's fees, requested a declaratory judgment declaring that the Commissioner's decision was wrong. I still don't know the point of doing that, other than trying to form a basis for fees. Now, the court ultimately entered that sort of decision and declared, for whatever purpose, that the Commissioner's decision was wrong. But that was a decision by the Commissioner of Education really taken entirely, I would say, in essence in his judicial capacity. And you'll note in one of the district court's opinions, the district court makes the point that it is not ruling against the Commissioner... and it uses these words... "on any basis that the Commissioner ever failed to enforce state law or failed to see that state law was carried out. " No, the court rejected that, said that that was not the reason. It said the reason why it was acting in the case was because the Commissioner had rendered this decision, and it gave the date for the decision. So I would say there's no doubt that all we have in this case is a pure Education for all Handicapped Children's matter, where a hearing officer acting under that Act has rendered a certain decision.
John Paul Stevens: May I go back to the beginning again? I want to be sure I have this thing in the right sequence. The very beginning of the litigation, as I understand it, the child was about to be... the funds were about to be withdrawn and the child was about to be transferred to a different facility.
Forrest L. Avila: The funds were about to be withdrawn, and I don't know, we don't know, what the results would have been.
John Paul Stevens: But the allegation is--
Forrest L. Avila: But the local school committee had withdrawn the funds.
John Paul Stevens: --But the allegation in the complaint was was that there was a risk the child would be transferred, wasn't that right?
Forrest L. Avila: Well, I think the--
John Paul Stevens: At least the funds were going to be withdrawn?
Forrest L. Avila: --The funds were going to be withdrawn, which would terminate that placement. But the Rhode Island Commissioner of Education was not involved in the dispute at that point.
John Paul Stevens: Well, I understand. But at that point the district judge entered an injunction maintaining the status quo.
Forrest L. Avila: Yes, Your Honor, that's exactly what he did.
John Paul Stevens: And that action rested entirely on federal law, did it not?
Forrest L. Avila: No, Your Honor. I would say that what the... if you look at his decision, he said that where the school committee has gone wrong in this case, it's not following state regulations. And I think failure to follow state regulations... and I don't know how valid it is... failure to follow state regulations is a violation of federal due process, so I'm going to require--
John Paul Stevens: But at least the theory of the complaint was that the failure to follow the correct procedures violated due process and therefore there was a 1983 claim.
Forrest L. Avila: --Enough to keep the--
John Paul Stevens: Well, that's really the only claim in the original complaint.
Forrest L. Avila: --That's the only, that procedural due process was being violated.
John Paul Stevens: Was the only claim in the original complaint.
Forrest L. Avila: As I understand the original complaint.
John Paul Stevens: And that is what maintained the status quo. Then all these other things developed after that.
Forrest L. Avila: Exactly, Your Honor, and that's what happened. And it wasn't... and indeed, the district court at one point observed--
John Paul Stevens: If at least there's a colorable argument that it was based on 1983, why doesn't that support a fee award?
Forrest L. Avila: --Your Honor, that might well, as the First Circuit indicated, might... I'm not conceding the point... might support a fee award against the school committee. But the school committee has already settled this matter, and you note what the school committee is paying for is for the fees for the preliminary injunction, by their agreement, fees for the preliminary injunction and fees for the hearing before the school committee. And what the plaintiffs are trying to obtain from the Commissioner are fees for the hearing which the Commissioner conducted. And perhaps he ruled in favor of the school committee, but he ruled, that was the position of the school committee. I think we were just acting in a straightforward judicial capacity.
Sandra Day O'Connor: Mr. Avila, why did the Court of Appeals not address the Maher versus Gagne type approach and talk about the substantiality of the constitutional claim and the meritorious nature of the statutory claim under 504?
Forrest L. Avila: Well, I think, Your Honor, they do mention that decision, and why they did not... why they did not follow it is simply this. In this case, as the plaintiffs, as the Petitioners indicate, they are not arguing that the Education for all Handicapped Children's Act is enforceable under 1983. Now, that would be the straightforward way to get fees, to argue that it's enforceable under 1983 and therefore under 1988 you should get fees. But they never raised that issue in this case. So I respectfully submit they're trying to bring the fee award in through a constitutional back door. What they're saying is--
Sandra Day O'Connor: Well, my question was just why you think the Court of Appeals didn't come to grips with the test--
Forrest L. Avila: --I think they did come to grips with it, Your Honor. What they did is, they said that if you have an action that's entirely bottomed on a federal act, such as the 1983 action, which in itself in their judgment wouldn't be enforceable under 1983, they in essence felt that if you couldn't find any Congressional intent to enforce it through 1983 you shouldn't be allowed to take a back door approach.
Sandra Day O'Connor: --Well, do you think that is consistent with the approach in Maher versus Gagne in all respects?
Forrest L. Avila: I think it is, Your Honor, when you're dealing with a case where in our judgment the constitutional claims are really the same, they're consubstantial. They're really the same claim as the statutory claim. It's not really that they are in any way different. In this case the handicapped procedures, those administrative regulations, that was resolved in that process who was responsible for educating that child. That was resolved through a statutory procedure.
Sandra Day O'Connor: Well, if there's no repeal of 1983 by implication, in effect, for these purposes and the two avenues of relief are open, then you have to determine the substantiality of the 1983 claim, I guess, if that's your position.
Forrest L. Avila: Well, I think there are two positions there. One, I would think, I would argue that in fact you have look at the Education for All Handicapped Children's Act as having preclusive effect. Just looking at the wide-ranging nature of that Act--
Sandra Day O'Connor: Under a Brown versus GSA type of approach?
Forrest L. Avila: --That sort of left it that this Act was obviously meant... it prescribes things that are never going to be prescribed constitutionally. It involves the development of individualized education programs and provision of related services. It's a very, very comprehensive Act, and I just don't see how 1983 comes into play.
Byron R. White: Well, I didn't think the Court of Appeals held that there wouldn't be a 1983 action, or it didn't hold that this Act precluded any parallel remedies anywhere else. They just said it precluded attorney's fees. That's the issue in the case.
Forrest L. Avila: Well, what they were saying is that the only reason why these constitutional claims were added from the Commissioner's perspective was sort of transparently, I would suggest, for the purpose of getting attorney's fees. The interesting sort of issue in the case is this: You could raise this sort of constitutional issue, whatever it may have been... I don't think in my mind it was ever, assuming that it existed, it was ever that well articulated... and there was no real way that anyone could ever get at it. I think that in the old Siler case this Court established a rule about avoiding deciding constitutional questions, and the purpose of that rule was because the Court for prudential reasons wanted to turn away from deciding those issues, recognizing the problems you get with constitutional constructions. When you've got a state... when you've got a federal statute like the Handicapped Children's Act, it's so wide-ranging, realistically no one is turning away from deciding the difficult constitutional issue. That's not really involved in the case. Everyone's attention is simply focused on the statute. So that rules seems to be potentiating here into something that it was never intended to involve, the fee award question. What I'm suggesting is that when the alleged 1983 constitutional claim is coextensive with the Education for All Handicapped Children's Act, we can't believe the 1988 fee provision is applicable. I also want to point out briefly, Your Honor, that we've raised the contention that the Commissioner here is not liable for fees because he was acting in a judicial capacity. I won't belabor that point. I just want to point out that we would contend that if administrative hearing officers are going to be put in a position where they or their agencies are going to have to pay fees depending upon how they decide the case, that's really not going to contribute to fair and equal due process for anyone. Finally, Your Honors, I'd like to suggest that this Court's recent decision in the Pennhurst case may have some applicability to this matter. To the extent that this question was ultimately decided on state law grounds, that decision suggests that perhaps the federal district court shouldn't have gotten involved in the matter in the first place, at least in relation to the Commissioner's decision. Now, we have to concede that we're here on a motion for attorney's fees, but I would suggest that if there's some Eleventh Amendment immunity applicable in this case that it should be applicable even now on the question of attorney's fees, because the effectiveness of that ruling is best served by avoiding... by nullifying federal judicial actions, which in essence, on the basis of a state court, state supreme court decision, it just goes out of its way to reverse, for no very good reason perhaps, a decision of an administrative hearing officer.
John Paul Stevens: Would that argument suggest that it was error for the district court to certify the question it did to the Rhode Island Supreme Court?
Forrest L. Avila: I would be... well, that might be true. I'm hard-pressed to say that since I, in the original case, I was the one that moved it in the first place, and we thought it was a serious issue that should be decided by the Rhode Island Supreme Court.
John Paul Stevens: In retrospect, it seems you were quite wrong, doesn't it, under Pennhurst?
Forrest L. Avila: Well, Pennhurst was... could have been, could be wrong. But I think that it was something we'd still have to do again, because it's a vital state issue, and the Rhode Island Supreme Court had to have, I think properly had to have, the final say on that issue. If there are no further questions.
Warren E. Burger: Very well. Do you have anything further, Mr. Larson?
E. Richard Larson: Yes, Mr. Chief Justice. My adversary seemed to imply that the claims in this case, the 504 claims and the constitutional claims, were kind of back door claims to get attorney's fees. I respectfully disagree. This is an exclusion case. There could be no stronger case for an equal protection claim on this record. The original complaint sought relief under the Constitution in general, and it did specify due process. The subsequent complaints can all be read as having, no question about it, an equal protection claim in it. The 504 claim is as substantial as a 504 claim can be. This is, again, an exclusion case. The language of 504 bars exactly what happened in this case, exclusion on the basis of handicap. Now, as attorneys representing the plaintiffs we had the responsibility to allege not only substantial claims, but claims which we believe we can win on. In this case we had three sets of--
Thurgood Marshall: Weren't you obliged to allege them in the original complaint?
E. Richard Larson: --The 504 claim could have been alleged in the original complaint.
Thurgood Marshall: Well, weren't you obliged to do it?
E. Richard Larson: No, we were not obliged to do it.
Thurgood Marshall: You mean you should hold one of them back?
E. Richard Larson: There was no intentional holding back, Your Honor.
Thurgood Marshall: For sandbagging purposes?
E. Richard Larson: No, this was no sandbagging, Your Honor.
Thurgood Marshall: For fee purposes?
E. Richard Larson: No, Your Honor. The fees were in this case from the beginning to the extent that there was a substantial constitutional claim stated on the face of the initial complaint. I should also point out that the trial court here made as an ultimate finding of fact the finding that the equal protection claim was substantial, and that was deferred to... a similar finding was deferred to in the majority opinion by this Court in Maher v. Gagne in footnote 10, and in the concurring opinion by Mr. Justice Powell there is a statement saying that, we have no occasion to, because of the settlement, to evaluate further the constitutional cause of action. There is no question that plaintiffs were prevailing plaintiffs in this case. I would also like to address the fact with regard to the question that Justice Powell raised with me earlier about the chronology. I'm not sure that I answered it quite clearly enough. The state defendants were added in this case after the administrative procedures had been exhausted, prior to the certification order. And, as Mr. Avila pointed out, it was the Respondents who came in and sought the certification. Plaintiffs had three winning federal claims and we were more than happy to win on any one of those claims. The trial court, in a model of deference to comity and to federalism, did grant the certification order. No Pennhurst issue was involved in this case whatsoever. Instead, what the court did was it avoided not only the federal statutory issues, but it also avoided the constitutional issue. This Court only yesterday in Escambia County cited with approval Ashwander once again in order to avoid deciding unnecessarily constitutional--
John Paul Stevens: But Mr. Larson, how can you say there is no Pennhurst issue? How can you say that? He based the decision on state law when he could have done it on federal grounds, and there was a state defendant in the case.
E. Richard Larson: --There is no--
John Paul Stevens: Why isn't that directly... isn't that exactly what Pennhurst prohibits?
E. Richard Larson: --no federal court interpretation whatsoever of the state law. It's a certification that happened on defendants' application.
John Paul Stevens: Well, I know it was done on defendants' application, but it doesn't mean it's consistent with Pennhurst, does it?
E. Richard Larson: Pennhurst for Eleventh Amendment purposes, as I understand Pennhurst, bars a federal court order based upon state law, an injunctive order requiring state officials to comply with state law. There was no such order in this case.
John Paul Stevens: Well, I thought--
E. Richard Larson: Jurisdiction was alleged solely on our 1983, 504, and '75 Education Act.
John Paul Stevens: --Well, I thought earlier in the argument it was developed that all of the relief was based entirely on state law, as you eventually got through. But that isn't right?
E. Richard Larson: Plaintiffs obtained the objectives sought in this lawsuit.
John Paul Stevens: Against state defendants, based on the state law, in a federal court.
E. Richard Larson: As a result of a state court ruling--
Byron R. White: But the Court of Appeals said that the relief really rested on a federal statute.
E. Richard Larson: --In their second opinion, yes, they did.
Byron R. White: And so they interpreted, reinterpreted the whole run of events and said that it was under the Education for the Handicapped Act.
E. Richard Larson: The State of Rhode Island decision, because it starts out with several paragraphs discussing the federal law--
Byron R. White: Could you tell me in a word why you think you're entitled to fees for the state administrative proceedings?
E. Richard Larson: --It gets into an interpretation of this Court's decision in New York Gaslight versus Carey as to whether or not there has to be a mandatory exhaustion proceeding or whether fees are also available--
Byron R. White: Yes, but the mandatory exhaustion proceeding is under a statute that doesn't provide for fees.
E. Richard Larson: --That issue is not before this Court. That's something that the First Circuit would have to deal with on remand. It was raised before the First Circuit and not reached by the First Circuit.
Speaker: All right.
Warren E. Burger: Thank you, gentlemen. The case is submitted.