Max M. v. Thompson

• Decision Date: 23 April 1984
• Docket Number: No. 82 C 6575.,82 C 6575.
• Citation: 585 F. Supp. 317
• Parties: MAX M., and his parents, Mr. & Mrs. M., Plaintiffs, v. James R. THOMPSON, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

585 F. Supp. 317

MAX M., and his parents, Mr. & Mrs. M., Plaintiffs, v. James R. THOMPSON, et al., Defendants.

No. 82 C 6575.

United States District Court, N.D. Illinois, E.D.

April 23, 1984.

Matthew Cohen, Canel, Aronson & Whitted, Chicago, Ill., for plaintiffs.

Paul Millichap, Asst. Atty. Gen., John Collins, Brydges, Riseborough, Morris, Franke & Miller, John Relias, N. Morrison Torrey, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendants.

ORDER

BUA, District Judge.

This order concerns plaintiffs' motion for reconsideration by this Court of its decision in Max M. v. Thompson, 566 F.Supp. 1330 (N.D.Ill.1983), wherein this Court granted defendants' motions to dismiss certain counts of plaintiffs' complaint, either in their entirety or as to certain defendants. For the reasons stated herein, plaintiffs' motion is granted in part and denied in part.

I. BACKGROUND

Plaintiffs' original complaint presented claims which, though grounded on several statutes, were basically derived from the Education for All Handicapped Children Act (EAHCA).¹ The EAHCA is a funding statute under which states receive federal funds to assist them in providing educational services to the handicapped. Any state educational agency receiving funds under the EAHCA must establish procedures whereby handicapped children and their parents may protect their rights to a "free appropriate public education." 20 U.S.C. § 1415(a).

Plaintiffs are Max M., a child handicapped within the meaning of the EAHCA, and his parents. The parties named as defendants in the original complaint were designated as the "State Defendants," the "Intermediate Defendants," and the "Local Defendants." The State Defendants included: (1) James R. Thompson, Governor of Illinois; (2) the Illinois State Board of Education (ISBE); (3) Donald Gill, the Illinois Superintendent of Education; and (4) Edward Copeland, the Chairperson of the Illinois State Board of Education. The Local Defendants were: (1) New Trier High School District # 203 (District # 203); (2) the New Trier District # 203 Board of Education; (3) Ronald Bickert, Superintendent of Schools in District # 203, and (4) James Walter, Director of Special Education for District # 203. The final group of defendants, the Intermediate Defendants, included: (1) the North Suburban Special Education District (NSSED); and (2) Stanley Bristol, Superintendent of the NSSED.

The relevant facts taken from the complaint and exhibits thereto have been set forth in this Court's published order of July 1, 1983, Max M., supra, and are briefly recapitulated here. Max M. attended New Trier West, a public high school in Northfield, Illinois, from 1977 to 1981. Because of his disorganization, difficulty in writing, and anxiety, his academic performance was poor. During his freshman year, Max was referred to the District No. 203 Department of Special Education for evaluation. Intensive psychotherapy was recommended, but District 203 made no offer to provide the service at that time. The following summer, Max's parents formally requested District 203 to provide the recommended therapy during Max's sophomore year. District 203 developed an "individualized education plan" ("IEP") pursuant to the EAHCA for Max during his sophomore year, but the IEP did not include therapy. Max's condition worsened during his sophomore, junior, and senior years in high school. In the IEPs developed for each academic year, no provision was ever made for District 203 to provide intensive psychotherapy. Max's parents did not participate in the development of any of these IEPs. Ultimately, Max's parents themselves obtained private psychiatric treatment for Max at a cost to them of $8,855.

On May 15, 1981, District 203 notified Mr. and Mrs. M. of its decision to issue Max a high school diploma. Under the EAHCA, a handicapped child in Illinois becomes ineligible for continued benefits upon graduation. On May 21, 1981, Mr. and Mrs. M. requested a due process hearing, alleging violations of Max's right to a free appropriate public education. Subsequently, District 203 issued Max a diploma. On October 13, 1981, a state appointed hearing officer conducted a hearing, and ordered the diploma revoked, with services to continue based upon a new IEP. District 203 appealed the ruling to the Illinois State Board of Education, which, on February 19, 1982, reversed the decision of the hearing officer. Plaintiffs' complaint challenged this ruling on several grounds.² This Court dismissed all claims against all defendants except for plaintiffs' claim against the Local Defendants under § 1415(e)(2) of the EAHCA for reimbursement of the $8,855 expended by Mr. and Mrs. M. for Max's psychiatric treatment. Max M., 566 F.Supp. at 1340.

In their instant motion, plaintiffs request reconsideration of essentially two of the dismissed claims. These claims sought: (1) compensatory remedial educational services to compensate Max for the deprivation of EAHCA benefits while he was in high school (Related to this claim, plaintiffs request an injunction to rescind Max's high school diploma in order to re-establish his eligibility under the EAHCA); and (2) injunctive relief prohibiting Illinois State Board of Education employees from serving as members of the State review panel, thereby ensuring impartial review. The second claim depends upon revival of the first. The basis for plaintiffs' motion is a case recently decided by the Seventh Circuit, Timms v. Metropolitan School District of Wabash County, Ind., 722 F.2d 1310 (7th Cir.1983).³ Plaintiffs argue that the Timms opinion, handed down after this Court's original decision in the instant case, states principles which, if followed by this Court, would require a result different than that which the Court previously reached. Plaintiffs urge this Court to reconsider its earlier order in light of the intervening controlling precedent.

II. THE NATURE OF PLAINTIFFS' MOTION TO RECONSIDER

Plaintiffs specify no Federal Rule of Civil Procedure under which their motion to reconsider falls.⁴ Nevertheless, this Court will treat the motion as one arising under Fed.R.Civ.P. 60(b). Rule 60(b) reads in relevant part:

(b) ... On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertance, surprise or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment. The motion should be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment order, or proceeding was entered or taken....

The Seventh Circuit has stated:

The extraordinary relief provided by Rule 60(b) may be granted only upon a showing of exceptional circumstances. Peacock v. Board of School Commissioners, 721 F.2d 210, 213 (7th Cir.1983). A motion to vacate a judgment pursuant to Rule 60(b) is addressed to the sound discretion of the district court ... Id.; Planet Corp. v. Sullivan, 702 F.2d 123, 125 (7th Cir.1983).

McKnight v. U.S. Steel Corp., 726 F.2d 333, 335 (7th Cir.1984).

A "60(b)(1) motion, filed within the time for appeal, calling the trial court's attention to an intervening controlling appellate decision, is a proper means to allow the trial court to correct a decision that would otherwise be corrected by a timely appeal." Peacock, 721 F.2d at 214, construed in McKnight, 726 F.2d at 336. However, "a change in applicable law after entry of judgment does not by itself justify relief under 60(b)." McKnight, 726 F.2d at 336. To satisfy Rule 60(b)(1), the motion to reconsider must be filed within the time permitted to make an appeal on the judgment in question.⁵

On first glance it would appear that in the instant case, Max M. and his parents have allowed the applicable period to expire without appealing the dismissal of some of the claims in their complaint. However, upon examination, this clearly is not the case as this Court's order was not properly appealable in the first place. Under 28 U.S.C. § 1291, only final orders of district courts are appealable. An order, such as that in the case at bar, dismissing only certain counts of a complaint or dismissing a complaint as to only some among multiple defendants is not a final appealable order. Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th Cir.1976) cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976); Fletcher v. Gagosian, 604 F.2d 637 (9th Cir.1979). As stated by the Eighth Circuit, "it is a salutory rule, long adhered to by Federal courts that, except where otherwise provided by statute, a cause of action must be treated as a unit, not triable piecemeal, nor appealable in fragments." Brandt v. Renfield Importers, Ltd., 269 F.2d 14, 16 (8th Cir.1959).

Surely, the time limitation on 60(b)(1) motions imposed by Peacock, and DeFilippis v. United States, 567 F.2d 341 (7th Cir.1977) (see n. 5, supra), cannot have been intended to apply to situations, such as the one sub judice, where the order in question was not properly appealable. Hence, there is no impediment to this Court's entertaining plaintiffs' motion to reconsider in light of an intervening controlling appellate decision. Here, where there has not yet been a ruling on the pending cross-motions for summary judgment on Max M.'s single remaining claim, let alone a trial, the appearance of an intervening opinion by the Court of Appeals for our own circuit makes it incumbent upon this Court, in the interests of equity and judicial economy, to reconsider its partial dismissal of plaintiffs' complaint.⁶

III. THE EFFECT OF TIMMS

The question now before the Court is whether, upon plaintiffs' present motion, the Court should reconsider its July 1, 1983 order in Max M., in light of the Seventh Circuit's subsequent opinion in Timms v. Metropolitan School District of Wabash County, 722 F.2d 1310 (7th Cir.1983). The...