Jose P. v. Ambach
| Decision Date | 21 January 1982 |
| Docket Number | D,312,Nos. 89,314 and 471,313,s. 89 |
| Citation | 669 F.2d 865 |
| Parties | 2 Ed. Law Rep. 954 JOSE P., et al., Plaintiffs-Appellees, v. Gordon M. AMBACH, Defendant-Appellant-Cross-Appellee, Frank J. Macchiarola, et al., Defendants-Appellees-Cross-Appellants. UNITED CEREBRAL PALSY OF N.Y.C., INC., et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION, et al., Defendants-Appellees-Cross-Appellants, Gordon M. Ambach, et al., Defendants-Appellants-Cross-Appellees. DYRCIA S., et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION, et al., Defendants-Appellees, New York State Education Department, et al., Defendants-Appellants. ockets 80-7053, 81-7165, 81-7263, 80-7283 and 81-7205. |
| Court | U.S. Court of Appeals — Second Circuit |
Kenneth Pawson, Albany, N. Y. (Robert D. Stone, Albany, N. Y., Atty. for Commissioner of Education, Jean M. Coon, Albany, N.Y., of counsel), for defendants-appellants-cross-appellees.
Robert Bergen, New York City (Allen G. Schwartz, Corp. Counsel, Ronald E. Sternberg, Gary R. Tarnoff, New York City, of counsel), for defendants-appellees-cross-appellants.
John C. Gray, Jr., Brooklyn, N. Y. (Harold Adler, Brooklyn Legal Services Corp., Brooklyn, N. Y., of counsel), for plaintiffs-appellees Jose P. et al.
Michael A. Rebell, New York City (Arthur R. Block, Helene M. Freeman, New York City, of counsel), for plaintiffs-appellees United Cerebral Palsy of N.Y.C., Inc., et al.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and CONNER, District Judge. *
Each of the three cases consolidated on appeal was a class action on behalf of handicapped children challenging New York state and city education authorities' failure to provide the appropriate public education required by the Education of All Handicapped Children Act (EHA), 20 U.S.C. §§ 1401-1461, section 504 of the Rehabilitation Act, 29 U.S.C. § 794, New York Education Law §§ 4401-4409, the regulations promulgated under those statutes, and the Fourteenth Amendment. More specifically, the defendants were charged with failure to evaluate and place handicapped children in appropriate programs in a timely fashion. The complaint filed by United Cerebral Palsy of New York City, Inc. (UCP), also claimed that the delays could be remedied only through appropriate structural reforms in the educational system. Plaintiffs sought injunctive and declaratory relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202, and alleged jurisdiction under 28 U.S.C. §§ 1331 and 1343.
By order dated May 16, 1979, the United States District Court for the Eastern District of New York, Eugene P. Nickerson, Judge, certified the class in Jose P., held that by the defendants' own concession they had "failed to comply with the statutory requirements," and appointed former Judge Marvin Frankel special master under Fed.R.Civ.P. 53 to work out a remedy. Disposition of the UCP and Dyrcia S. cases was deferred pending the master's final report in Jose P., and counsel for all three plaintiff classes then participated in the Jose P. proceedings. On December 14, 1979, Judge Nickerson, following the recommendation of Master Frankel, entered a judgment finding that the defendants had "violat(ed) the requirements of federal and New York law and regulations," requiring defendants to "take all actions reasonably necessary to accomplish timely evaluation and placement in appropriate programs of all children with handicapping conditions," and establishing a detailed remedial plan. Judgments identical to the one in Jose P. were entered in UCP and Dyrcia S. in January 1980.
Judge Nickerson also found, in orders of January 31 and May 29, 1980, that both the city and the state defendants were liable for attorneys' fees to the Jose P. and the UCP plaintiffs. On December 5, 1980, the parties filed stipulations that $140,000 in Jose P. and $71,681.93 in UCP were fair and reasonable amounts for attorneys' fees, and on December 18, 1980, Judge Nickerson ordered these amounts allocated 80% against New York City and 20% against New York State, "in accordance with their relative culpability."
On the appeal brought by the New York State Commissioner of Education, the issues are whether the district court properly held that the class actions could be maintained against the Commissioner, notwithstanding plaintiffs' failure to exhaust state administrative remedies, on the ground that these remedies were inefficacious; whether the district court correctly held the Commissioner liable for failure to assure that the city school district provide appropriate education to the plaintiffs; and whether the district court's 80-20 allocation of responsibility for the attorneys' fee awards had a rational basis. We affirm.
On the cross-appeal by the New York City Chancellor, the issue is whether it was a proper exercise of the district court's discretion to allocate the responsibility for attorneys' fees between the city and the state defendants on an 80-20 basis rather than a 50-50 basis. We also affirm.
In the order certifying the Jose P. class, Judge Nickerson held that the action against the state defendants would not be barred by the named plaintiffs' failure to exhaust the administrative hearing and appeal procedure provided by the New York Education Law, stating that "the inefficacy of the available administrative remedies has been demonstrated." In his order denying without prejudice class certification to the UCP plaintiffs pending proceedings in Jose P., he said again that "in light of the absence of a 'meaningful administrative enforcement mechanism.' ... this suit may be maintained without prior resort to administrative proceedings." The Commissioner argues on appeal that available administrative remedies are not inefficacious, and thus that absent their exhaustion by plaintiffs, the district court lacked jurisdiction over the state defendants.
The only administrative remedies at issue here are those provided in sections 4401 to 4404 of the New York Education Law. 1 Under the New York statutes and regulations, the parents of handicapped children may, first, refer the child to a school district's committee on the handicapped for evaluation and recommendation for placement, N.Y.Educ.Law § 4402; second, request a hearing at the school district level if dissatisfied with the committee's recommendation or with its failure to act within thirty days of referral, id. § 4404(1); 8 N.Y.C.R.R. § 200.5(c); and third, appeal to the Commissioner, subject to review in state court, N.Y.Educ.Law § 4404(2)-(3). Plaintiffs argued successfully below that such procedures are totally inadequate to handle the thousands of individuals in the classes awaiting suitable placement, and that the individual appeal mechanism is inappropriate to resolve the systemic compliance issues raised in the class actions. The Commissioner argues on appeal that the inadequacy of these procedures was not proved, as the court below ignored the availability of hearings before hearing officers appointed by the school district, whose numbers are in theory unlimited.
The Second Circuit has long held that exhaustion of state administrative remedies prior to adjudication of a section 1983 claim in federal court is not required if adequate and speedy state remedies are not available, see, e.g., Gonzalez v. Shanker, 533 F.2d 832, 834, 837-38 (2d Cir. 1976); Morgan v. LaVallee, 526 F.2d 221, 223 (2d Cir. 1975); Blanton v. State University of New York, 489 F.2d 377, 383-84 (2d Cir. 1973); Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), or if the inadequacy of the state administrative remedy is "coextensive with the merits of the plaintiff's constitutional claim," Fuentes v. Roher, 519 F.2d 379, 387 (2d Cir. 1975); see Barry v. Barchi, 443 U.S. 55, 63 n.10, 99 S.Ct. 2642, 2648 n.10, 61 L.Ed.2d 365 (1979); Gibson v. Berryhill, 411 U.S. 564, 575, 93 S.Ct. 1689, 1696, 36 L.Ed.2d 488 (1973). See generally Swan v. Stoneman, 635 F.2d 97, 103-04 (2d Cir. 1980). The Fifth Circuit recently adopted a similar qualified exhaustion rule, Patsy v. Florida International University, 634 F.2d 900, 912 (5th Cir. 1981) (en banc) (), cert. granted sub nom. Patsy v. Board of Regents, --- U.S. ----, 102 S.Ct. 88, 70 L.Ed.2d 81 (1981), and the Supreme Court may soon address the split between courts applying such an exhaustion rule and those applying an absolute nonexhaustion rule, see Patsy, 634 F.2d at 908-09.
Under the Second Circuit rule, Judge Nickerson's decision to take jurisdiction over these actions notwithstanding lack of exhaustion was correct. He noted that administrative action from 1974 to 1979 by the Commissioner pursuant to the 1971 complaint in Matter of Reid, 13 Ed. Dep't Rep. 117, had been ineffective in achieving appropriate education for the handicapped in New York City. He also noted that counsel for the Commissioner had conceded at a hearing in Jose P. that "he would be unable to expeditiously process the appeals of all the members of the plaintiff class were they to pursue administrative proceedings." And especially in light of the Commissioner's acknowledgment that the City Board's compliance with his orders in Reid "was not as much as (he had) wished," there is no reason to expect that the City is about to hire the hearing officers that literally thousands of individual cases would require. This was enough to conclude that New York's administrative remedies were not adequate or speedy. 2 Moreover, the state administrative remedies, which involve only the placement of individuals, could well be found inappropriate to a problem Judge Nickerson described as "complex" and "polyc...
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...feasibly at the administrative level and Plaintiffs have not alleged any such systemic violations. Id. at 9 (citing Jose P. v. Ambach, 669 F.2d 865 (2d Cir.1982)). Plaintiffs contend they were not required to exhaust administrative remedies because Plaintiffs argue that the IDEA only applie......
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