Flavin v. Connecticut State Bd. of Educ.

• Decision Date: 27 December 1982
• Docket Number: Civ. No. H-81-888.
• Citation: 553 F. Supp. 827
• Court: U.S. District Court — District of Connecticut
• Parties: Christina FLAVIN, ppa Dennis Flavin, Dennis Flavin and Pamela Flavin v. CONNECTICUT STATE BOARD OF EDUCATION, John E. Toffolon, June K. Goodman, Rose K. Lubchansky, Roberto Fuentes, Dayson D. DeCourcy, Rose B. LaRose, Julia Rankin, Gail H. Stockham, James J. Szerejko, Members of the State Board of Education; Mark R. Shedd, Secretary of the State Board of Education and Commissioner of Education; Greenwich Board of Education; James Strauch, Hearing Officer.

553 F. Supp. 827

Christina FLAVIN, ppa Dennis Flavin, Dennis Flavin and Pamela Flavin v. CONNECTICUT STATE BOARD OF EDUCATION, John E. Toffolon, June K. Goodman, Rose K. Lubchansky, Roberto Fuentes, Dayson D. DeCourcy, Rose B. LaRose, Julia Rankin, Gail H. Stockham, James J. Szerejko, Members of the State Board of Education; Mark R. Shedd, Secretary of the State Board of Education and Commissioner of Education; Greenwich Board of Education; James Strauch, Hearing Officer.

Civ. No. H-81-888.

United States District Court, D. Connecticut.

December 27, 1982.

COPYRIGHT MATERIAL OMITTED

Hollace P. Brooks, Rome, Case, Donnelly, Kennelly & Klebanoff, Hartford, Conn., for plaintiffs.

Ellen S. Boer, Asst. Town Counsel, Greenwich, Conn., for Greenwich Bd. of Educ.

Robert W. Garvey, Hartford, Conn., John R. Whelan, Asst. Attys. Gen., Carl R. Ajello, Atty. Gen., for all remaining defendants.

RULING ON MOTION TO DISMISS

CLARIE, Chief Judge.

This action was brought pursuant to the Education of All Handicapped Children Act, 20 U.S.C. § 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act, 42 U.S.C. § 1983. In addition, the plaintiffs seek to invoke the pendent jurisdiction of this Court and allege that this action is in the nature of an appeal from the decision of the Special Education Hearing Officer of the Connecticut Department of Education, pursuant to Connecticut General Statutes § 10-76h.

The defendants have moved to dismiss this action on several grounds: (1) the action was not brought within the time required by the statute of limitations; (2) the comprehensive remedial statutory framework provided by 20 U.S.C. § 1400 et seq. is exclusive and precludes a right of action under Section 504 and § 1983; (3) the damages claimed by the plaintiffs are not recoverable under 20 U.S.C. § 1400 et seq. or Section 504; and (4) the action is barred by the Eleventh Amendment.

The Court finds that some of the defendants' arguments have merit; accordingly the Motion to Dismiss is granted in part and denied in part.

Facts

Christina Flavin and her parents are the plaintiffs in this action and they allege that Christina is a multiply handicapped eight year old girl who qualifies for special education and related services under state and federal law. Christina was identified as a child requiring special education by the Greenwich Board of Education at a Planning and Placement Team (PPT) meeting on September 6, 1978.

Christina attended one of the special education programs of the Greenwich public schools for the 1978-79 school year. In September 1979, Christina entered a different special education program in the Greenwich public schools, however, her parents quickly became dissatisfied with that program. They allege that on October 1, 1979, they initiated a special education appeal and requested mediation pursuant to Conn. Gen.Stat. § 10-76h, which was scheduled to be held on a future date. On the very next day, however, the plaintiffs removed Christina from the special education program in the Greenwich public schools and placed her at a private school, known as the Foundation School. The transfer of Christina to the Foundation School was a unilateral action taken by the plaintiffs, before any mediation or hearings pursuant to their special education appeal could be held.

The initial mediation session was held on November 28, 1979, but failed to produce any agreement. The plaintiffs next requested a state hearing before an impartial hearing board pursuant to Conn. Gen.Stat. § 10-76h(a)(2). The latter hearing was conducted over a period of five days and the Hearing Officer issued a written decision on April 30, 1980, in which he found that the special education program provided by the Greenwich public schools was appropriate for Christina Flavin. Pursuant to Conn.Gen.Stat. § 10-76h and § 4-183, the plaintiffs appealed this decision of the state Hearing Officer to the Connecticut Superior Court.¹

Christina Flavin completed the 1979-80 school year at the Foundation School. In August, 1980, a PPT meeting was held to discuss Christina's program for the 1980-81 school year. The PPT recommended that Christina return to the special education program within the Greenwich public schools, which had been found to be appropriate for Christina by the state Hearing Officer. Christina's parents appealed the recommendation of the PPT to the Greenwich Board of Education, which upheld the decision of the PPT. On October 28, 1980, Christina's parents requested another state hearing. The hearing was delayed, however, because the Hearing Officer ordered an independent evaluation by the Newington Children's Hospital. Following the independent evaluation, three more days of hearings were held. On July 29, 1981, the state Hearing Officer issued his decision based upon the comprehensive independent evaluation prepared by the Newington Children's Hospital and other evidence. He found that the special education program offered by the Greenwich public school system was appropriate for Christina. On November 16, 1981, one hundred and eleven days after the decision of the state Hearing Officer was filed, the plaintiffs filed this action in federal court.

Discussion of the Law

I. Statute of Limitations

The defendants argue that the plaintiffs may appeal from a decision of the state Hearing Officer only as authorized in Conn. Gen.Stat. § 10-76h, which allows an appeal from a decision of the Hearing Officer in accordance with Conn.Gen.Stat. § 4-183. The latter statute is a part of the Connecticut Administrative Procedure Act and contains the procedures for appeals from administrative decisions to the Connecticut Superior Courts and provides that "proceedings for such appeal shall be instituted by filing a petition in superior court ... within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after the decision thereon." Conn.Gen.Stat. § 4-183(b). The plaintiffs did not request a rehearing and the defendants contend that the plaintiffs' appeal to this court, filed 111 days after the mailing of the state Hearing Officer's decision, is untimely under Conn.Gen.Stat. § 4-183(b) and must be dismissed.

The complaint in this action states that the plaintiffs are aggrieved by the decision of the state Hearing Officer, "and it is from that decision that they are appealing." In addition, the first count of the complaint is based entirely on Conn.Gen. Stat. §§ 10-76a — 10-76h, and the applicable statute of limitations for such an appeal is clearly the forty-five day limitation period contained in Conn.Gen.Stat. § 4-183(b). The second and third counts of the complaint, however, are based exclusively on federal law, i.e., the Education of All Handicapped Children Act (EHA), 20 U.S.C. § 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Neither of these federal statutes contain a statute of limitations and therefore this Court must apply the most analogous state statute of limitations. Chevron Oil Company v. Hudson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

In order to determine the most analogous state statute of limitations, the Court must consider the essential nature of the federal claim and whether the state judicial proceedings available under the analogous state cause of action are equivalent to the federal judicial proceedings available under the federal cause of action. Smith v. Perkin-Elmer Corp., 373 F.Supp. 930, 936 (D.Conn.1973); Tokarcik v. Forest Hills School District, 665 F.2d 443, 448 (3d Cir. 1981).

The EHA specifically authorizes a private civil action to appeal from a decision of the state Hearing Officer which may be brought in state or federal court. 20 U.S.C. § 1415(e)(2). In such a civil action, "... the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision of the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Id. The federal statute thus contemplates a de novo appeal, in which the court is entitled to render an independent judgment on the basis of the administrative record and any additional evidence brought to light. See S.Rep. No. 94-455 (Conference Committee) 94th Cong. 1st Sess. 50, reprinted in 1975 U.S.Code Cong. & Adm. News, 1425, 1480, 1503. By contrast, in an appeal taken pursuant to Conn.Gen.Stat. § 4-183, the reviewing court is confined to the record and "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Conn.Gen.Stat. § 4-183(g).

The nature of the judicial proceedings available to a plaintiff in an administrative appeal taken pursuant to Conn.Gen.Stat. § 4-183 are quite unlike the judicial proceedings available under 20 U.S.C. § 1415(e) of the EHA. Accordingly, the statute of limitations prescribed in Conn. Gen.Stat. § 4-183 is not applicable to the plaintiffs' federal cause of action. Accord, Tokarcik v. Forest Hills School District, 665 F.2d 443 (3d Cir.1981); Monahan v. Nebraska, 491 F.Supp. 1074 (D.Neb.1980), aff'd in part, rev'd and remanded in part on other grounds, 645 F.2d 592 (8th Cir.1981). The pendent state claims based on Conn.Gen. Stat. § 10-76a et seq., however, were not brought within the forty-five day limitation period contained in Conn.Gen.Stat. § 4-183 and are accordingly dismissed.

II. Exclusivity of the EHA

The second count of the plaintiffs' complaint is based on the EHA and the third count is based on Section 504 of the Rehabilitation Act of 1973. Although not addressed in any particular count, the jurisdictional statement of the complaint invokes the Civil Rights Act, 42 U.S.C. § 1983. The defendants move to dismiss whatever claims may be premised on § 1983 and argue that the comprehensive remedial framework provided by...