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Georgia Association of Retarded Citizens v. Dr. Charles McDaniel Etc.

GEORGIA ASSOCIATION OF RETARDED CITIZENS, Et Al., Plaintiffs-Appellees, Cross-Appellants, v. Dr. Charles McDANIEL, Etc., Et Al., Defendants-Appellants, Cross-Appellees

Ga. Ass'n of Retarded Citizens v. Charles McDaniel Etc., 740 F.2d 902 (11th Cir. 1984)
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Court
Court of Appeals for the Eleventh Circuit · U.S. Courts of Appeals
Decided
September 4, 1984
Docket
No. 81-7485
Judges
Hill, Vance, Tuttle
Citations
740 F.2d 90219 Educ. L. Rep. 1171984 U.S. App. LEXIS 18965

Opinion of the Court — Per Curiam

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge. PER CURIAM:

In our previous opinion in this case, reported at 716 F.2d 1565 , we affirmed the judgment of the trial court granting an injunction against the defendants’ continuing policy of not considering or providing more than 180 days of education for profoundly mentally retarded children. In our opinion we expressly based our affirmance on our consideration of the Education for the Handicapped Children Act, 20 U.S.C. § 1401 et seq. (“EHA”) and also on our consideration of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 .

By order entered July 5, 1984 the Supreme Court granted certiorari and vacated our judgment and remanded the case “for further consideration in light of Smith v. Robinson, 468 U.S. [---], 104 S.Ct. 3457 [ 82 L.Ed.2d 746 ] (1984).” McDaniel v. Georgia Association of Retarded Citizens, — U.S. — , 104 S.Ct. 3581 , 82 L.Ed.2d 880 .

The Court’s decision in Robinson requires that we modify our previous opinion. In Robinson the Court held that a plaintiff who asserted a valid claim under the EHA could not also proceed under the Rehabilitation Act and that recovery could not be had for attorney’s fees under either Act.

*903 Although this issue of attorney’s fees was not present in our case, we did expressly state that recovery could be had under the Rehabilitation Act. This is now incorrect.

We therefore modify our previous opinion by making the following deletions: (1) delete the words “and § 504 of the Rehabilitation Act of 1973” from the last sentence of the first paragraph of the opinion; (2) delete all of part VI B of the opinion.

We also strike the final paragraph of our previous judgment and substitute in lieu thereof the following:

The judgment of the district court is AFFIRMED to the extent that it granted relief to plaintiffs under the Education for Handicapped Children’s Act.

Its holding that plaintiffs were entitled to relief under the Rehabilitation Act is REVERSED.

Except for these changes, the previous opinion is adopted and made the judgment of the Court.

Dissent — Hill

JAMES C. HILL,

Circuit Judge, dissenting:

I dissent for the reasons set forth in my dissent to the original panel opinion. Georgia Association of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1581 (11th Cir. 1983).

Combined text as published — syllabus, headnotes and all opinions in one document

740 F.2d 902 19 Ed. Law Rep. 117

GEORGIA ASSOCIATION OF RETARDED CITIZENS, et al., Plaintiffs-Appellees, Cross-Appellants, v. Dr. Charles McDANIEL, etc., et al., Defendants-Appellants, Cross-Appellees.

No. 81-7485.

United States Court of Appeals, Eleventh Circuit.

Sept. 4, 1984.

Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., Atlanta, Ga., for defendants-appellants, cross-appellees.

Fisher & Phillips, Griffin B. Bell, Jr., Ruth W. Woodling, Atlanta, Ga., for Savannah Chatham Bd. of Ed.

Mark Cross, Dept. of Justice, Appellate Section, Civil Rights Div., Washington, D.C., amicus curiae.

Jonathan A. Zimring, Atlanta, Ga., Rose Firestein, Ga. Legal Service Program, Savannah, Ga., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Northern District of Georgia.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

1

In our previous opinion in this case, reported at 716 F.2d 1565 , we affirmed the judgment of the trial court granting an injunction against the defendants' continuing policy of not considering or providing more than 180 days of education for profoundly mentally retarded children. In our opinion we expressly based our affirmance on our consideration of the Education for the Handicapped Children Act, 20 U.S.C. Sec. 1401 et seq. ("EHA") and also on our consideration of Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 .

2

By order entered July 5, 1984 the Supreme Court granted certiorari and vacated our judgment and remanded the case "for further consideration in light of Smith v. Robinson, 468 U.S. [----], 104 S.Ct. 3457 [ 82 L.Ed.2d 746 ] (1984)." McDaniel v. Georgia Association of Retarded Citizens, --- U.S. ----, 104 S.Ct. 3581 , 82 L.Ed.2d 880 .

3

The Court's decision in Robinson requires that we modify our previous opinion. In Robinson the Court held that a plaintiff who asserted a valid claim under the EHA could not also proceed under the Rehabilitation Act and that recovery could not be had for attorney's fees under either Act.

4

Although this issue of attorney's fees was not present in our case, we did expressly state that recovery could be had under the Rehabilitation Act. This is now incorrect.

5

We therefore modify our previous opinion by making the following deletions: (1) delete the words "and Sec. 504 of the Rehabilitation Act of 1973" from the last sentence of the first paragraph of the opinion; (2) delete all of part VI B of the opinion.

6

We also strike the final paragraph of our previous judgment and substitute in lieu thereof the following:

7

The judgment of the district court is AFFIRMED to the extent that it granted relief to plaintiffs under the Education for Handicapped Children's Act.

8

Its holding that plaintiffs were entitled to relief under the Rehabilitation Act is REVERSED.

9

Except for these changes, the previous opinion is adopted and made the judgment of the Court.

JAMES C. HILL, Circuit Judge, dissenting:

10

I dissent for the reasons set forth in my dissent to the original panel opinion. Georgia Association of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1581 (11th Cir.1983).

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Cited by 18 cases

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1985: 21987: 21988: 41990: 21991: 21997: 11998: 12003: 12005: 22010: 119852026peak 1988 · 4

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Smith v. Robinson, 468 U.S. 992 (1984) 823
Ga. Ass'n of Retarded Citizens, Cross v. Charles McDaniel Etc., 716 F.2d 1565 (11th Cir. 1983) 37
United States v. Cassity, 468 U.S. 1212 (1984) 33
McDaniel v. Ga. Ass'n of Retarded Citizens, 468 U.S. 1213 (1984) 9

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