Robert D. v. Sobel

• Decision Date: 04 April 1988
• Docket Number: No. 88 Civ. 287 (CLB).,88 Civ. 287 (CLB).
• Citation: 688 F. Supp. 861
• Parties: ROBERT D. and Lena D., v. Thomas SOBEL, as Commissioner of Education of the State of New York.
• Court: U.S. District Court — Southern District of New York

688 F. Supp. 861

ROBERT D. and Lena D., v. Thomas SOBEL, as Commissioner of Education of the State of New York.

No. 88 Civ. 287 (CLB).

United States District Court, S.D. New York.

April 4, 1988.

Marion Katzive, Anne Murdaugh, Rebell & Katzive, New York City, for plaintiffs.

Martha Shoemaker, Asst. Atty. Gen. of State of N.Y., New York City, for defendant.

MEMORANDUM AND ORDER

BRIEANT, Chief Judge.

On January 15, 1988, plaintiffs brought this action against the Board of Education of the Croton-Harmon Union Free School District ("Board") and Thomas Sobel, as the New York State Commissioner of Education ("Commissioner"), pursuant to the Education of the Handicapped Act ("EHA"), as amended by the Handicapped Children's Protection Act ("HPCA"), 20 U.S.C. Sec. 1415(e)(4)(B), which provides:

In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a handicapped child or youth who is a prevailing party.

Plaintiffs are seeking the award of costs, including attorney's fees, incurred in a local administrative proceeding in the amount of $2,774.29, and additional fees and costs incurred in this action. The action against the Board of Education was discontinued without prejudice or costs on March 2, 1988. The Commissioner in oral arguments heard on March 22, 1988, and papers fully submitted as of that date, moved to dismiss the action, or in the alternative for summary judgment, on the following grounds: it is barred by the statute of limitations; the Court lacks subject matter jurisdiction since it is an action solely for attorney's fees incurred in an administrative proceeding; the Commissioner was not a party to the administrative proceeding; and plaintiffs did not prevail since the hearing officer's decision is void as a matter of law.

This motion is denied in all respects. The Court further concludes it is appropriate to award summary judgment to the plaintiffs, since no genuine issue of material fact remains to be tried and they are entitled to judgment as a matter of law.

The EHA, 20 U.S.C. Secs. 1401 et. seq., "represents an ambitious federal effort to promote the education of handicapped children," Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982), through federal funding to state and local school systems. To qualify for federal funding a state must afford handicapped children a free appropriate education and develop a plan to effect that policy. New York has adopted a plan pursuant to the EHA, see N.Y.Educ.Law Secs. 4201-13, 4351-58, 4401-09 (McKinney 1981 & Supp.1987). Under the plan, the Board establishes a Committee on Special Education ("CSE") to develop individualized education programs ("IEP") for each handicapped child, and recommend appropriate educational placement for him to the Board. If it is determined that placement in a private school or out-of-state school is appropriate, the Board must seek approval of the Commissioner. N.Y.Educ.L. Sec. 4402(2)(b).

The EHA, and state law, also provide procedures for administrative review for parents who object to placement decisions regarding their child. The EHA at 20 U.S. C. Sec. 1415(b)(2), provides in relevant part:

Whenever a complaint has been received under paragraph (1) of this subsection, the parents ... shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency.

New York law provides for an impartial hearing to be provided by the Board as the local educational agency. N.Y.Educ.L. Sec. 4404(1). Usually this is done through a hearing officer, and the hearing officer's determination is then appealable to the Commissioner. Id. The Commissioner's determinations are then reviewable in an Article 78 proceeding in the New York Supreme Court or by a civil action in the federal courts. 20 U.S.C. Sec. 1415(e)(2).

Plaintiffs are the parents of Mark D., a handicapped child. In Spring 1987 it was determined that Mark D.'s needs were no longer met by his school placement, and it was necessary to find another facility for him. Following appropriate procedure, plaintiffs applied to the CSE of the Croton-Harmon Union Free School District to determine the proper school for Mark D. The CSE recommended a private residential placement, and applied to seventeen instate schools on his behalf. Only one instate school, the Summit School, accepted Mark D.

The Board, however, requested that the State Education Department approve a contract for a private, out-of-state placement of Mark D. at the Devereux Foundation in Pennsylvania, which was a school on the state's approved list. All contracts with private schools are subject to the Commissioner's approval pursuant to Sec. 4402(2)(b)(2), N.Y.Educ.Law. The State Education Department, through its Regional Associate, refused to approve the out-of-state placement on the ground that an instate placement that met all of Mark D's needs existed, and therefore, the regulations barred approval. N.Y.Educ.Law Sec. 4407(1). On May 28, 1987 the Board reapplied to the Regional Associate, submitting a revised IEP to support its request. On June 4, 1987 the State Education Department again refused to approve out-of-state placement for Mark D.

Plaintiffs then requested an impartial hearing to challenge the determination. On June 8, 1987, a hearing was held at which the Board, CSE and the parents were all present, but nobody from the State Education Department participated. A State Education Department official declined to attend the hearing, despite the fact that the State Education Department's determination that Summit was an appropriate placement and its refusal to approve the out-of-state placement was the only decision being challenged. In typical bureaucratic fashion, the official wrote to the hearing officer that: "As a representative of the Commissioner of Education, I should not be participating in any due process activity that could ultimately be appealed to the Commissioner." Complaint, Ex. A (Letter from Edmund L. Cortez, June 9, 1987).

Based upon the evidence presented at the hearing, including expert testimony of a teacher, school social worker and psychologist, the hearing officer determined in a written decision dated June 16, 1987 that the in-state school was an not appropriate placement for Mark D. and remanded the case back to the CSE to take whatever steps were necessary to assure appropriate residential placement. Complaint, Ex. A. The hearing officer did not order placement at Devereux, but recommended such placement. A copy of the decision was sent to the State Education Department, and in a letter dated June 30, 1987, the State Education Department in a reversal of position, approved Mark D's placement at the Devereux School in Pennsylvania. Complaint, Ex. B. Plaintiffs requested attorney's fees from the Board and Commissioner, and when that request was denied they brought this action.

Defendant moves to dismiss on the ground that the action is untimely. Plaintiffs' cause of action for attorney's fees accrued on June 16, 1987, the date of the hearing officer's determination in favor of the plaintiffs. The complaint was filed on January 15, 1987, almost seven months after the decision of the hearing officer.

The EHA provides for no statute of limitations, and therefore, the courts must borrow the time limitation applicable to the most closely analogous cause of action under state law. Wilson v. Garcia, 471 U.S. 261, 267-68, 105 S.Ct. 1938, 1942, 85 L.Ed. 2d 254 (1985). Defendant claims that this action is untimely because it is governed by a four month statute of limitations, and cites Adler v. Education Dept. of State of New York, 760 F.2d 454 (2d Cir.1985) in support of his position.

In Adler parents of a handicapped child brought an action in federal court pursuant to Sec. 1415(e)(2), appealing a decision of the Commissioner. The court held that the four-month statute of limitations period of Sec. 217 N.Y.Civ.Prac.Law, which applied to Article 78 proceedings, was applicable to the action. 760 F.2d at 456. The court reasoned that an action under Sec. 1415(e)(2) was essentially an appeal from an administrative proceeding, and analogous to the modified Article 78 proceeding provided for in Sec. 4404(3) N.Y.Educ.Law. Id. at 457. The court also noted that the policy behind the EHA of making appropriate public education available to handicapped children favored a shorter limitation period, since under a longer statute of limitations the child could stay in an inappropriate program for a longer period of time because of any delay in seeking federal court review. Id. at 459-460.

The reasoning of the court in Adler, however, does not apply to the case at bar. In that case the court was considering review of the Commissioner's determination under Sec. 1415(e)(2), while this case involves solely an award of attorney's fees under Sec. 1415(e)(4)(B). There is no similarity or analogy between an action for attorney's fees and costs, and an action to appeal a final administrative determination. In addition, there is no policy implicated by applying a longer statute of limitations to an action solely to recover attorney's fees. The placement of the handicapped child would not be implicated by an action for attorney's fees incurred in the administrative proceeding under 1415(e)(4)(B), since the adminsitrative proceeding would have resolved the issue of the child's placement before the action for fees is commenced.

This Court concludes, therefore, that the statute of limitations applicable to this case is found in Sec. 214(2) N.Y.Civ. Prac.Law, which provides that an action must be commenced within three years if it is: "an action to recover upon a...