Opinion
CA A25473
Petitioner-cross-respondent's reconsideration filed August 13, 1983 Response to reconsideration filed September 4, 1983
Opinion filed April 11, 1984 Reconsideration denied December 7, 1984 Petition for review denied January 29, 1985
Judicial Review from Department of Education.
P. Conover Mickiewicz, Graham M. Hicks and Miller, Nash, Wiener, Hager Carlsen, Portland, for petition.
Elam Lantz, Jr. and Zachary Zabinsky, Portland, contra.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
BUTTLER, P. J.
Petition for reconsideration allowed; former opinion adhered to.
Multnomah County School District No. 1 (district) has petitioned for reconsideration and review of our decision in Laughlin v. School Dist. No. 1, 69 Or. App. 63, 686 P.2d 385 (1984), contending that a part of our decision conflicts with Smith v. Robinson, 468 US ___, 104 S Ct 3457, 82 L Ed 2d 746 (1984), decided within a few days of our decision. We allow the petition and adhere to our decision.
The district's petition only challenges our holding that the Department of Education (department) has discretionary authority under the the Rehabilitation Act of 1973, 29 U.S.C. § 794a (b), to award attorney fees to respondents Laughlin (parents), if the department determines that parents are the prevailing party on a claim brought under section 504 of the Rehabilitation Act. Although parents' complaint alleged violations of section 504, the department's order did not indicate whether they prevailed on any of those claims. We remanded the case, in part, "for determination of parents' claim under the Rehabilitation Act and, if appropriate, reconsideration of parents' claim for attorney fees." Laughlin v. School Dist. No. 1, supra, 69 Or App at 74.
District now contends that this holding conflicts with Smith v. Robinson, supra. As relevant here, Smith holds that when the Education For All Handicapped Children Act of 1975 (EHA), 20 U.S.C. § 1400 et seq (1982), guarantees a right with more precision and clarity than does section 504, a party seeking to enforce that right is limited to the remedies provided by the EHA, and "a plaintiff may not circumvent or enlarge on the remedies available under the EHA by resort to § 504." Smith v. Robinson, supra, 468 US at ___ ( 82 L Ed 2d at 771). Because attorney fees are not available under the EHA, it follows from Smith that a party may not resort to section 504 to recover attorney fees when seeking to enforce rights guaranteed by the EHA by simply restating the EHA claim under section 504. However, Smith specifically does not address situations where the EHA is not available, or situations where the right claimed is not provided by the EHA with more clarity and precision than the right provided by section 504.
It is not apparent from the record before us that parents rely on section 504 only for an award of attorney fees, that the rights parents claim under section 504 are more clearly and precisely guaranteed by the EHA or that the EHA is available for the presentation of parents' section 504 claims. Because those questions should be answered in the first instance by the department and must be answered affirmatively before Smith bars parents' claim for relief under section 504, including an award of attorney fees should they prevail, we conclude that remand of the case to the department for specific consideration of parents' section 504 claims is the appropriate disposition.
Petition for reconsideration allowed; former opinion adhered to.