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December 11, 1989


The opinion of the court was delivered by: WOLIN

 Before the Court plaintiff moves for summary judgment on his cause of action for an award of reasonable attorney fees and costs pursuant to 20 U.S.C. § 1415(e)(4). Defendant opposes this motion on the grounds that plaintiff; (1) cannot bring a separate action for attorney fees for work done prior to an administrative determination under the Education for all Handicapped Children Act ("EHA") and the Handicapped Children's Protection Act of 1986 ("HCPA"); (2) is not a "prevailing party" as defined by those statutes; and (3) is collaterally estopped from bringing an action for attorney fees since the settlement agreement which ended the original dispute did not contain a provision addressing attorney fees. After having considered the briefs and affidavits submitted by the parties, for the reasons stated below, the Court finds that the underlying facts of this action are not in dispute and that plaintiffs are entitled to a judgment as a matter of law. Therefore, the Court will grant summary judgment to the plaintiffs and award reasonable attorney fees and costs in the amount of $ 3346.00.


 The facts stated below are undisputed unless otherwise identified. Plaintiff P.Q., is the parent and Guardian Ad Litem of plaintiff E.P., classified as an emotionally disturbed child ("plaintiffs"). For the 1988-1989 school year E.P. was enrolled in a shared-time program at the David Brearley Regional High School ("Brearley") and the Union County Vocational Technical School ("Tech") pursuant to his Individualized Education Program ("IEP"). He went to Brearley in the morning where he attended a self-contained class for history and mainstreamed in the balance of his subjects. He went to Tech in the afternoons where he concentrated on courses in diesel mechanics. In the fall of 1988 E.P. was involved in several incidents which resulted in the principal of Brearley indefinitely suspending E.P. from school as of November 4, 1988. The plaintiffs retained an attorney on November 8, 1988 in order to have E.P. readmitted to the shared-time program.

 Thereafter, plaintiffs made an application for emergency relief pursuant to N.J.A.C. 1:6A-3.1 seeking to have E.P. readmitted to his shared-time program and seeking any other appropriate relief. The last paragraph of plaintiffs' application specifically stated that "all parties should be put on notice that at the appropriate time and in the appropriate forum attorney's fees shall be sought in accordance with 20 U.S.C. 1415(e)(4)." Letter to Dr. Osowski, dated November 8, 1988, page 2. A hearing was scheduled for November 17, 1988 at the Office of Administrative Law in Newark, New Jersey, in front of Administrative Law Judge Christopher Dietz.

 Prior to the hearing, the ALJ met with the parties and counsel in chambers and facilitated the reaching of a settlement between plaintiffs and the school authorities. The settlement provided that E.P. would be admitted to a shared-time program at Tech and a different high school within the same school district as Brearley. Provision was made for continued and more intensive therapy among the family members. Also, an independent evaluation of E.P.'s classification, program and placement was ordered. The ALJ placed the terms of the settlement on the record and specifically found that the settlement had "been reached voluntarily, [was] fully dispositive of all issues in controversy and [was] consistent with the law in accordance with N.J.A.C. 1:1-19.1." Decision Approving Settlement and Order for Emergency Relief, dated November 17, 1988 ("Order of ALJ"). Plaintiffs instituted the instant action in federal court solely for the purpose of recovering attorney fees and costs incurred in connection with the settlement, the administrative hearing and the instant action. Subsequently, plaintiffs have moved for summary judgment claiming that because they are "prevailing parties" within the meaning of the EHA, they are entitled to attorney fees and costs.


 Summary judgment must be granted if "there is no genuine issue as to any material fact" and the "moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." All reasonable inferences must be made in favor of the non-moving party during this determination. Summary judgment will be granted if no reasonable trier of fact could find for the non-moving party. Id.

 A. Attorney Fees for Work at the Administrative Level

 The Education for all Handicapped Children Act, 20 U.S.C. §§ 1400 et seq., was originally enacted in 1975. Its goal was to ensure that handicapped children would have access to public education by providing federal money to state and local education agencies. The original act did not provide for attorney fees. Consequently, the Supreme Court held that attorney fees were not available to those plaintiffs who prevailed at the administrative level and brought an independent action for fees under the EHA. Smith v. Robinson, 468 U.S. 992, 1020, 104 S. Ct. 3457, 3473, 82 L. Ed. 2d 746 (1984). In 1986, Congress amended the EHA by enacting the Handicapped Children's Protection Act of 1986 ("HCPA"), 20 U.S.C. §§ 1415(e)(4)-1415(f), the relevant portion of which reads as follows:

In any action or proceeding brought under this subsection [§ 1415(e)], the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party.

 20 U.S.C. § 1415(e)(4)(B). The language of the statute implies that the HCPA was enacted by Congress to "reverse[] the outcome mandated by Smith for plaintiffs asserting claims to enforce rights that attach under the EHA." Yaris v. Special School District of St. Louis County, 661 F. Supp. 996, 998 (E.D. Mo. 1987) (quoting Fontenot v. Louisiana Board of Elementary and Secondary Education, 805 F.2d 1222, 1225 (5th Cir. 1986)).

 This Court has dealt with this issue of statutory construction before *fn1" and has joined numerous other sister courts of coordinate jurisdiction in holding that the plain language of section 1415(e)(4)(B) unambiguously "leaves to the case-by-case discretion of the federal district courts the decision whether or not to award attorneys' fees in actions brought to enforce the provisions of the EHA." Mathern v. Campbell County Children's Center, 674 F. Supp. 816, 818 (D. Wyo. 1987); Accord, Burpee v. Manchester School District, 661 F. Supp. 731, 732 (D.N.H. 1987) ("amendatory provisions of HCPA make clear . . . the court in its discretion may award attorney fees for success at either the administrative or the ...

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