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annual data which shows that while 1400 cases required due process hearings

only 67 went to the court level.

Therefore, not only are the hearings a

component of the program, they are successful.

on the other hand, by not

requiring plaintiffs to exhaust the remedies of EHA, the EHA process itself is

weakened.

Second, it is clear that the costs of resolving areas of disagreement are

expensive

too expensive.

"Jumping" into court as a tribunal of first

impression will only increase costs

regardless of who prevails.

Additionally, once the situation reaches court, substantive programming issues

will tend to be submerged

as the dynamics of the legal process take over.

Third, the courts themselves have made it clear in several key cases,

such

as Rowley, that they only want limited involvement in cases that could

otherwise be handled through EHA procedures.

Even the analysis of the three

judge dissent in Smith v. Robinson, (which was limited to a statutory

interpretation of Congressional intent) demonstrated that pre-disposition in

their choice of language when they stated:

"The natural resolution of the conflict between the EHA, on
the one hand, and $504 and $1983 on the other, is to require a
plaintiff with a claim covered by the EHA to pursue relief
through the administrative channels established by that Act
before seeking redress in the courts under $504 or $1983.
Under this resolution, the integrity of the EHA is preserved
entirely, and yet $504 and $1983 are also preserved to the
extent that they do not undermine the EHA."

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In 1984, the Attorneys General of Massachusetts and Washington, on behalf

of the National Association of Attorneys General transmitted a report to the

Congress outlining concerns with respect to the civil Rights Attorneys' Fees Award Act of 1976. In considering legislation in this area, we urge the

Subcommittee to review that report, as well as other bills addressing

attorneys' fees and administrative exhaustion issues.

NSBA fully supports the processes established under EHA as a cooperative

effort between parents and school officials to build effective and appropriate

programs for handicapped children.

We believe that the process is most

successful when it is infomal, de-emphazies the use of attorneys by all

parties, and is allowed to work.

In this regard, several key aspects of

S. 415 will upgrade the formality, increase the "lawyering", and encourage

by-passing the EHA system.

We urge the Subcommittee to carefully consider the

objectives of the bill, and the underlying concerns which it seeks to redress,

and then evaluate how well this bill can attain those goals, in relation to

other approaches.

In submitting this statement for the record, NSBA expresses its high regard for the importance of s. 415. Our interest in testifying was presented to the Subcommittee formally and infomally on several occasions in 1984 and 1985. NSBA was invited to testify with only one full working day available before the May 16, 1985, hearing to prepare its statement and to fly in an appropriate witness. Given the shortness of notice, NSBA was compelled to decline.

APPENDIX

NSBA urges that the following material (and full report) be considered as points pertinent to attorneys' fee recovery under s. 415

The National Association of Attorneys General has made the following findings and recommendations to Congress for legislative reform of the Civil Rights Attorney's Fees Awards Act of 1976.

FINDINGS OF THE ASSOCIATION

PINDING NO. 1:

Litigation under the Fees Act is expanding at an alarming rate with further expansion in the future a near certainty.

FINDING NO. 2:

The Act, as interpreted and applied by the courts, makes attorney's fees available not only in civil rights cases but in virtually all cases against state and local governments or officials.

FINDING NO. 3:

Cases decided under the Fees Act frequently involve the characterization of parties as "prevailing" for purposes of attorney's fees awards when, in fact, they have not prevailed, in any meaningful sense, on the merits of their claims.

PINDING NO. 4:

In cases where the requesting party has, in fact, prevailed to some extent, attorney's fees awards under the Act are frequently disproportionate to the degree of success actually achieved.

FINDING NO. 5:

The Fees Act, as interpreted and applied by the courts, makes the award of fees to a prevailing party virtually mandatory, thereby eliminating the "discretion" expressly granted to the courts by the Act.

FINDING NO. 6:

Lack of meaningful standards for determining what constitutes a "reasonable" attorney's fee in any given case results in inconsistent and often excessive fee awards and makes it difficult to settle claims for attorney's fees.

FINDING NO. 7:

Courts routinely make "bonus" awards or apply "multipliers" to the hourly rates set for prevailing counsel, resulting in grossly inflated awards constituting a "windfall" to prevailing counsel

PIN DING NO. 8:

In applying the Fees Act to prevailing parties represented by publicly-funded salaried attorneys, courts normally award fees based on hourly rates charged by private counsel, resulting in windfalls that substantially exceed the actual cost of the litigation.

FINDING NO. 9:

The Fees Act affects the process of legal dispute resolution in a way that is unfair to public defendants and that further burdens the courts by:

A.

making it more desirable for plaintiffs to coinin ence
litigation, rather than settle disputes informally;
making it more advantageous for plaintiffs to continue
litigation rather than settle where any meritorious claim is
presented;

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c.

D.

mr.aking it less desirable, once litigation is underway, for
public defendants to alter challenged laws, administrative
regulations, or official positions in any way that favors the
plaintiffs;
making it less desirable for public defendants to litigate those
close issues that should be litigated; and
making it difficult for plaintiffs and defendants to settle
claims for attorney's fees.

E.

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RECOMMENDATION NO. 7:

excess

RECOMMENDATION NO. 8:

The Congress should amend the Fees Act to prohibit the award of bonuses or multipliers in

of compensation at a reasonable hourly rate for the number of hours reasonably spent by prevailing counsel. The Congress should amend the Fees Act to provide that, where the prevailing party is represented by a publicly-funded legal services organization, courts should compute a reasonable hourly rate for such counsel based on the actual costs of the litigation to the organization, including the proportion of the attorney's annual salary and of the organization's annual overhead attributable to the number of hours reasonably spent on the case.

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