Gertel v. SCHOOL COMMITTEE OF BROOKLINE SCHOOL D.

• Decision Date: 10 January 1992
• Docket Number: Civ. A. No. 91-12291-K.
• Citation: 783 F. Supp. 701
• Parties: Tara GERTEL, Harvey Gertel, and Reva Gertel, Plaintiffs, v. SCHOOL COMMITTEE OF the BROOKLINE SCHOOL DISTRICT and Harold Raynolds, Jr., Commissioner of Education for the Commonwealth of Massachusetts, Defendants.
• Court: U.S. District Court — District of Massachusetts

783 F. Supp. 701

Tara GERTEL, Harvey Gertel, and Reva Gertel, Plaintiffs, v. SCHOOL COMMITTEE OF the BROOKLINE SCHOOL DISTRICT and Harold Raynolds, Jr., Commissioner of Education for the Commonwealth of Massachusetts, Defendants.

Civ. A. No. 91-12291-K.

United States District Court, D. Massachusetts.

January 10, 1992.

Helen Elizabeth Morgan, Peter B. Finn, Rubin & Rudman, Boston, Mass., for plaintiffs.

Sara Holmes Wilson, Brookline, Mass., Beth D. Levi, Government Bureau, Boston, Mass., Harold Raynolds, Jr., Com'r of Educ. for Com. of Mass., Quincy, Mass., for defendants.

MEMORANDUM AND ORDER

KEETON, District Judge.

This is an action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415, for review of a February 4, 1991 decision of the Massachusetts Bureau of Special Education Appeals ("BSEA") denying reconsideration of the BSEA's November 2, 1990 decision holding the government not responsible for reimbursing the plaintiffs for the costs of Tara Gertel's education at the Learning Preparatory School in the 1989-90 school year. Defendants have filed motions to dismiss (Docket Nos. 6, 9) on the ground that the action is time-barred. For the reasons stated below, defendants' motions are hereby granted.

I. Facts

For the purpose of addressing defendants' motions to dismiss, I accept plaintiffs' factual allegations as true. Tara Gertel is a learning-disabled, cognitively-impaired 14-year-old student. She attended school in the Brookline Public Schools from kindergarten through sixth grade. In April 1989, an Individual Educational Plan ("IEP") was proposed for the 1989-90 school year that recommended placing Tara in a special education class at the Baker Elementary School in the Brookline school district. Out of concern for Tara's educational and emotional well-being, factors that Tara's parents believed were inadequately addressed in the IEP, Tara's parents placed her in a private school, the Learning Preparatory School.

On November 29, 1989, the Gertels formally rejected the proposed IEP, and continued Tara's placement at the Learning Preparatory School. In February 1990, the Gertels requested a hearing before the BSEA to obtain reimbursement for the costs of Tara's private school education, plus attorneys' fees and disbursements. The BSEA determined that Brookline could provide Tara with an appropriate public school education, and, in a November 2, 1990 decision, denied reimbursement of Tara's education costs. A motion for reconsideration was filed by the Gertels and was denied by the BSEA on February 4, 1991.

While the Gertels' motion for reconsideration was pending before the BSEA, procedures were underway before the BSEA concerning Tara's IEP for the 1990-91 school year. Settlement discussions were also occurring that might have resolved ongoing disputes for both years; however, those discussions failed to bear fruit. There is no dispute that as of February 4, 1991 all of these discussions came to a halt. Nevertheless, this action was not brought by the Gertels pursuant to 20 U.S.C. § 1415(e)(2) until August 29, 1991, almost eight months after their motion for reconsideration was denied and after conclusion of the 1990-91 school year (indeed, just before the inception of the present 1991-92 school year).

II. Discussion

Section 1415(e)(2) grants the Gertels

the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.

The statute does not specify a limitation period for the bringing of actions. It is well-settled that in this circumstance the federal court shall borrow and apply an appropriate statute of limitation derived from state law. Plaintiffs contend that determination of the appropriate state statute of limitation is made by application of a two-prong test: (i) the limitation period must be borrowed from a state cause of action that is analogous to the federal action, and (ii) the limitation period must be consistent with the policies of the federal statute. This is not a strictly correct statement of the law.

Implicit in plaintiffs' two-prong analysis is an assignment of equal weight to the two factors to be considered. Thus, a limitation period from an analogous cause of action could be rejected in favor of a period associated with a less analogous state cause of action deemed more consistent with the federal statute solely on the basis of the lengths of the limitation periods themselves. The correct method for selection of the appropriate limitation period as established by the Supreme Court is to choose the most analogous state cause of action. Wilson v. Garcia, 471 U.S. 261, 268, 105 S.Ct. 1938, 1942-43, 85 L.Ed.2d 254 (1985). The limitation period associated with that action limits the federal action unless inconsistent with the policies of the federal statute.

A.

In order to determine the limitation period, I must find the limitation period associated with the state cause of action most analogous to an action under § 1415(e)(2). Defendants contend that the 30-day limitation period prescribed by Mass.Gen.L. ch. 30A, § 14, governing appellate review of administrative determinations, is the appropriate choice. Plaintiffs have registered their opposition, arguing that § 14 is not sufficiently analogous. As the Supreme Court has noted, however, analogies to state law causes of action are bound to be imperfect. Wilson, 471 U.S. at 272, 105 S.Ct. at 1944-45. Plaintiffs, having noted that the statutes of limitation associated with all other Massachusetts state law causes of action are sufficiently lenient to allow their claims, assert that the court should find any other limitation period to apply.

Courts that have considered this issue are divided on the subject. Compare Adler v. Education Dept., 760 F.2d 454 (2d Cir.1985) (selecting 4-month period prescribed for administrative review process); Spiegler v. District of Columbia, 866 F.2d 461 (D.C.Cir.1989) (selecting 30-day period prescribed for administrative review process); Department of Educ. v. Carl D., 695 F.2d 1154 (9th Cir.1983) (selecting 30-day period prescribed for administrative review process); Scokin v. Texas, 723 F.2d 432 (5th Cir.1984) (30-day period prescribed for administrative review process, though "apparently" most analogous, rejected for other reasons) and Schimmel v. Spillane, 819 F.2d 477 (4th Cir.1987) (30-day period prescribed for administrative review process, though most analogous, rejected for other reasons) with Tokarcik v. Forest Hills School Dist., 665 F.2d 443 (3d Cir. 1981) (rejecting administrative review analogy, and suggesting in obiter dictum that two-year period associated with personal injury actions is most analogous), cert. denied, 458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982) and Janzen v. Knox County Bd. of Educ., 790 F.2d 484 (6th Cir.1986) (selecting three-year period for property tort claims based upon statutory liability for personal services rendered). The only court within this circuit to have considered the issue held that the 30-day period prescribed by the New Hampshire statute governing appellate review should be applied. Bow School Dist. v. Quentin W., 750 F.Supp. 546 (D.N.H.1990). The question has not been addressed by the First Circuit, nor has any court sought to make an appropriate determination with regard to Massachusetts law. Therefore, the question is one of first impression for this court.

I conclude that the appellate review process presents the most appropriate analogy to the § 1415(e)(2) cause of action involved in this case. First, I conclude that the weight of authority rests in that direction, on the basis of the persuasiveness of the decisions rendered as well as the relative numbers of authorities in each direction.

The decision in Janzen, 790 F.2d at 484, was based upon the fact that no administrative proceedings had taken place. The exhaustion requirement was excused in that case because any hearing that might have been granted would have been futile in view of the school board's fixed determination not to make reimbursement. The Sixth Circuit concluded that the 60-day statute of limitation "which applies to appeals from agency rulings is inapplicable because the Janzens had no ruling of any kind from which to appeal." Id. at 487. In the present case, the BSEA reviewed the Gertels' claims not once, but twice. The decision of the Sixth Circuit therefore has no bearing on this issue.

I find the decision of the Third Circuit in Tokarcik, 665 F.2d at 443, unpersuasive in view of Judge Rosenn's dissent in that case, and, more importantly, in view of the Supreme Court's intervening decision in Board of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The opinion of the Court in Tokarcik on this issue is based in large part on perceived differences between an action under § 1415 and an action under state law for appellate review of an administrative determination. Writing for the Court, Judge Adams asserted that the state review procedure involved restricted court review, limited factually to the administrative record, and limited legally to an arbitrary and capricious scope of review; yet, under § 1415 the parties could adduce new evidence, and the court could make a de novo determination based on a preponderance of the evidence standard. Of course, the precise scope of appellate review in Massachusetts differs from that in Pennsylvania, a matter which will be addressed in further detail below. The more fundamental point at present is that the Supreme Court's decision in Rowley undercut the force of Judge Adams' argument regarding the scope of review under the federal statute. In Rowley, the Court held that "the provision that a reviewing court base its decision on the `preponderance of the evidence' is by no...