Parks v. Pavkovic

Decision Date13 February 1985
Docket NumberNos. 83-2391,83-2448 and 83-2567,s. 83-2391
Parties, 22 Ed. Law Rep. 1128 Richard PARKS, Marilyn Parks, and Lester Parks by his parents and next friends, Richard Parks and Marilyn Parks; on their own behalf, and on behalf of all others similarly situated, Plaintiffs-Appellees, v. Ivan PAVKOVIC, Director, Department of Mental Health and Developmental Disabilities, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Patricia Rosen, Deputy Atty. Gen., Robert J. Krajcir, Board of Education of Chicago, Chicago, Ill., for defendants-appellants.

Mark C. Weber, Edwin F. Mandel Legal Aid Clinic, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS, Chief Judge, and BAUER and POSNER, Circuit Judges.

POSNER, Circuit Judge.

This is a class action by handicapped children and their parents, under the Education for All Handicapped Children Act of 1975, 20 U.S.C. Secs. 1400 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701 et seq., against the directors of various Illinois state agencies. The state--as we shall refer to the defendants collectively, because they are sued in their official capacities--appeals from the district judge's grant of injunctive and monetary relief to the class represented by the plaintiffs named in the complaint (Lester Parks and his parents).

Lester Parks is now 19 years old, but because of various (nonphysical) afflictions such as autism and mental retardation, he functions on the level of a 3-6 year old. He is indisputably a handicapped child within the meaning of the Education for All Handicapped Children Act, which requires participating states such as Illinois to offer all handicapped children between the ages of 3 and 21 (with immaterial exceptions) "a free appropriate public education." 20 U.S.C. Sec. 1412(1); see generally Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The term includes both "special education and related services," 20 U.S.C. Sec. 1401(18), the former meaning "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including ... instruction in hospitals and institutions," Sec. 1401(16); the latter meaning "transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education," Sec. 1401(17).

In 1980 Lester was in a private institution called New Hope Living and Learning Center. The state reimbursed his parents for all of the instructional and living expenses charged by New Hope except for $100 of his monthly living expenses. (We shall use the term "living expenses" to denote room and board, clothing, and other such noninstructional expenses, whether incurred in private residential institutions or private day schools.) The state defends the deduction on the ground that it had placed Lester in New Hope not because he had special educational needs but because he had a "developmental disability," meaning "a disability which is attributable to: (a) mental retardation, cerebral palsy, epilepsy or autism; or to (b) any other condition which results in impairment similar to that caused by mental retardation and which requires services similar to those required by mentally retarded persons." Ill.Rev.Stat.1981, ch. 91 1/2, p 1-106. Illinois law requires the parents of a child who is placed in a private facility to pay a maximum of $100 a month toward the costs of the facility (the maximum is not reached until the family has an annual income of $15,600) if the child was placed there pursuant to a determination by the state that he required such placement because he was developmentally disabled rather than because he needed a special education within the meaning of the Education for All Handicapped Children Act. See Ill.Rev.Stat.1981, ch. 91 1/2, p 5-116; Ill.Admin.Code, ch. I, Sec. 226.420(c).

Lester's parents complained to the responsible state agency, and on appeal to the Illinois state courts won a judgment requiring the state to pay New Hope's bills in full. See Parks v. Illinois Dept. of Mental Health & Developmental Disabilities, 110 Ill.App.3d 184, 65 Ill.Dec. 695, 441 N.E.2d 1209 (1982). That litigation finally ended on February 1, 1983, when the Illinois Supreme Court denied the state leave to appeal. Meanwhile Lester had been moved in 1980 to another private institution, Willowglen Academy, and again his parents were required to pay $100 a month toward his living expenses and again they complained to the state agency. A hearing officer ordered the state to pay Willowglen's future bills in full but did not order it to reimburse the Parkses for their unpaid Willowglen bills, which had mounted up above $2,000. The Parkses appealed the hearing officer's decision to the next level of administrative review. When the appeal was not decided within the time required by federal law, the Parkses, having thus exhausted their administrative remedies, and facing a discharge notice from Willowglen, brought this suit in federal district court early in 1982 under 20 U.S.C. Sec. 1415(e)(2). This section of the Education for All Handicapped Children Act authorizes anyone aggrieved by a decision made by a state in administering the Act to bring a civil action in state or federal court after exhausting his state administrative remedies, and directs the court to "grant such relief as the court determines is appropriate." The complaint alleged that the state was violating both the Education for All Handicapped Children Act and section 504 of the Rehabilitation Act by refusing to pay for Lester's living expenses. The complaint asked for a preliminary injunction ordering the state to pay the accumulated bill from Willowglen so that Lester would not be expelled before trial, and a permanent injunction forbidding the state to deduct any part of Lester's living expenses in the future (till he reaches 21).

The district court granted the preliminary injunction in March 1982, 536 F.Supp. 296, 313 (N.D.Ill.1982), and the state complied with the injunction. In February 1983 the district court certified the Parkses' suit as a class action on behalf of all handicapped children (apparently some 600 in all) whose living expenses (up to $100 a month) the state requires the parents to pay on the ground that the children have been institutionalized because they are developmentally disabled rather than because they need special education. 557 F.Supp. 1280 (N.D.Ill.1983). A few months later the court permanently enjoined the state from requiring such payments and also entered a purported final judgment under Rule 54(b) of the Federal Rules of Civil Procedure ordering the state to reimburse the class members for living expenses that the state had refused to defray since 1978, when the pertinent provisions of the Education for All Handicapped Children Act took effect. The court did not compute the amount of reimbursement due; we were told at argument that the total is between $1.5 million and $3 million.

The state appeals from both the permanent injunction and the order regarding reimbursement. We must first decide whether we have appellate jurisdiction. We shall begin with the order to reimburse living expenses; as will appear, the appealability of the permanent injunction is not problematic, even if that injunction is not itself a final order.

A district judge does not have carte blanche to certify an order for an immediate appeal under Rule 54(b). The order must finally dispose of a separate claim or a separate party. Normally an order that merely decides liability and leaves the determination of damages to future proceedings does not finally dispose of any claim; it is just a preliminary ruling on the plaintiff's damage claim. E.g., Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976); Freeman United Coal Mining Co. v. Director, Office of Workers' Compensation Programs, 721 F.2d 629, 630 (7th Cir.1983); Weiss v. York Hospital, 745 F.2d 786, 802-03 (3d Cir.1984); Garzaro v. University of Puerto Rico, 575 F.2d 335, 337 (1st Cir.1978); cf. Harris v. Goldblatt Bros., Inc., 659 F.2d 784, 786 (7th Cir.1981). But if the determination of damages will be mechanical and uncontroversial, so that the issues the defendant wants to appeal before that determination is made are very unlikely to be mooted or altered by it--in legal jargon, if only a "ministerial" task remains for the district court to perform--then immediate appeal is allowed. See Boeing Co. v. Van Gemert, 444 U.S. 472, 479 and n. 5, 100 S.Ct. 745, 749 and n. 5, 62 L.Ed.2d 676 (1980); Gulf Refining Co. v. United States, 269 U.S. 125, 136, 46 S.Ct. 52, 53, 70 L.Ed. 195 (1925); Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 826 (7th Cir.1984); Freeman United Coal Mining Co. v. Director, Office of Workers' Compensation Programs, supra, 721 F.2d at 631; United States v. Hughes, 585 F.2d 284, 286 (7th Cir.1978); St. Louis Shipbuilding & Steel Co. v. Casteel, 583 F.2d 876 and n. 1 (8th Cir.1978); Love v. Pullman Co., 569 F.2d 1074, 1076 (10th Cir.1978); Hattersley v. Bollt, 512 F.2d 209, 213-14 (3d Cir.1975); cf. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 216 n. 8, 97 S.Ct. 1782, 1789 n. 8, 52 L.Ed.2d 261 (1977). For if the further proceedings in the trial court are quite unlikely to make the appeal moot or even affect the issues on appeal there is no reason to delay the appeal while they are resolved; and the delay may be a source of cost.

The line between the ministerial and the substantial is a very dim one, but we...

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