School Bd. of County of York v. Nicely

• Decision Date: 30 July 1991
• Docket Number: No. 1612-90-1,1612-90-1
• Citation: 408 S.E.2d 545,12 Va.App. 1051
• Parties: , 69 Ed. Law Rep. 943 SCHOOL BOARD OF the COUNTY OF YORK v. George Daniel NICELY, et al. Record
• Court: Virginia Court of Appeals

Page 545

408 S.E.2d 545

12 Va.App. 1051, 69 Ed. Law Rep. 943

SCHOOL BOARD OF the COUNTY OF YORK v. George Daniel NICELY, et al.

Record No. 1612-90-1.

Court of Appeals of Virginia.

July 30, 1991.

Kathleen S. Mehfoud (Hazel & Thomas, P.C., on briefs), Richmond, for appellant.

Lois V. Ragsdale (Department for Rights of Virginians with Disabilities, on brief), Richmond, for appellees.

The Henrico County Public Schools (J.T. Tokarz, Richmond, on brief), amicus curiae, for appellant.

Present: KOONTZ, C.J., and BARROW and KEENAN ^*, JJ.

KOONTZ, Chief Judge.

The School Board of York County (School Board), appellant, appeals the September 20, 1990 circuit court decision to grant the appellees Nicelys' motion for summary judgment on the ground that the School Board failed to appeal the Virginia Board of Education's administrative decision within the Virginia Administrative Process Act's (VAPA) thirty day limitation period. Inherent in the court's decision is the finding that the VAPA's provisions for court review of agency decisions apply to special education appeals brought pursuant to Code § 22.1-214(D). Because our decision that the one year statute of limitations provided in Code § 8.01-248 applies in this case rather than the limitations period under the VAPA is dispositive, we do not reach the other issues raised by the School Board in this appeal.

George Daniel (Danny) Nicely is a twenty-one year old handicapped man who had been receiving educational services from the York County Public Schools for a number of years. He was identified as handicapped pursuant to Virginia Code §§ 22.1-213 et seq. and the federal Education of the Handicapped Act, 20 U.S.C. §§ 1400 et seq. A dispute arose concerning whether York County's school program could adequately fulfill Danny's educational needs, and if not, whether the School Board would be responsible for payment of Danny's placement in the Pines, a private treatment facility with a yearly cost of approximately $100,000.

In May 1988, the Nicelys initiated an administrative due process hearing to resolve the dispute. On November 10, 1988, a hearing officer appointed by the Virginia Board of Education issued an opinion ordering the School Board to pay the cost of Danny's placement in the Pines. The School Board timely appealed the hearing officer's opinion and obtained a state level review. The reviewing officer issued his opinion dated March 20, 1989 adopting the hearing officer's order and directing the School Board to comply with the order's requirements within thirty days.

On June 9, 1989, eighty-one days after the state review officer issued his opinion, the School Board filed a motion for judgment in the Circuit Court of York County pursuant to Code § 22.1-214(D). The Nicelys pleaded by affirmative defense that the School Board's motion was barred by the VAPA's thirty day statute of limitations, and they subsequently moved for summary judgment. After hearing argument, the court granted the Nicelys' motion for summary judgment based on their statute of limitations defense. This appeal followed.

On appeal, the Nicelys argue that actions brought pursuant to Code § 22.1-214(D) are procedurally governed by the VAPA and are, therefore, pursuant to Code § 9-6.14:16, subject to the limitation periods set forth in Rule 2A:2, which requires a party appealing from an agency case decision to file a notice of appeal within thirty days of such a decision, and Rule 2A:4, which requires the appealing party to file a petition for appeal within thirty days of filing a notice of appeal. The School Board contends that actions brought pursuant to Code § 22.1-214(D) are not subject to the VAPA and, therefore, the thirty day statute of limitations provided in Rules 2A:2 and 2A:4 are inapplicable. The School Board contends that the one year statute of limitations provided in Code § 8.01-248 ¹ applies in this case since the Virginia special education statutes, Code §§ 22.1-213 et seq., do not specify a statute of limitations.

In reaching our decision, we first look to the federal cases which have addressed this issue since the Virginia special education statutes are identical in pertinent parts to the federal Education of the Handicapped Act (EHA). Code § 22.1-214(D) was derived from 20 U.S.C. § 1415(e)(2). Under § 1415(e)(2), a party may institute a civil action in federal court to challenge a decision made in a state administrative due process hearing conducted to resolve disagreements concerning the appropriate education for a handicapped child. See, Schimmel v. Spillane, 819 F.2d 477, 480 (4th Cir.1987). However, the EHA does not provide a statute of limitations applicable to the filing of such actions and, therefore, a statute of limitations must be derived from elsewhere. See id. at 480-81. "In the absence of a controlling federal limitations period, the general rule is that a state limitations period for an analogous cause of action is borrowed and applied to the federal claim, provided that the application of the state statute would not be inconsistent with underlying federal policies." County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 240, 105 S.Ct. 1245, 1254, 84 L.Ed.2d 169 (1985); ACCORD Schimmel, 819 F.2d at 481.

Federal courts repeatedly have been required to decide which state statute of limitations to apply to actions brought pursuant to 20 U.S.C. § 1415(e)(2). As a result of those decisions, a variety of inconsistent limitation periods have been applied, sometimes within the same circuit. Compare, e.g., Janzen v. Knox County Bd. of Educ., 790 F.2d 484 (6th Cir.1986) (three year statute of limitations applied rather than sixty day statute of limitations for administrative appeals); and Kirchgessner v. Davis, 632 F.Supp. 616 (W.D.Va.1986) (one year limitations period under Code § 8.01-248 applied rather than thirty day period under VAPA) with, e.g., Spiegler v. District of Columbia, 866 F.2d 461 (D.C.Cir.1989) (applied thirty day limitations period of D.C. Court of Appeals Rule 15(a) for petitions of review of agency orders); and Thomas v. Staats, 633 F.Supp. 797 (S.D.W.Va.1985) (applied four month limitations period).

In Spiegler, the court had to decide which statute of limitations to apply to an action brought pursuant to § 1415(e)(2). The parties presented the court with two choices: the thirty day limitations period of D.C. Court of Appeals Rule 15(a) for petitions for review of administrative decisions and the three year "catch all" limitations period under D.C.Code § 12-301(8). 866 F.2d at 464. The court found that actions brought pursuant to § 1415(e)(2) were more analogous to appeals from administrative agencies rather than actions "for which a limitation [period] is not otherwise specially prescribed." Id. at 465 (quoting D.C. Code § 12-301(8)). The court then adopted the thirty day limitation period after finding that, in addition to being analogous to an appeal from an administrative agency, the thirty day limitation period was consistent with federal policies since it was combined "with a duty by the District to inform hearing participants of the short period" in which to initiate their appeal. Id. at 466.

When the Fourth Circuit recently decided Schimmel, it provided guidance to its district courts for selecting the appropriate state limitation period to apply to § 1415(e)(2) actions. As in the present case, the court in Schimmel had to decide whether to apply the thirty day limitation period under the VAPA or the one year limitation period provided by Code § 8.01-248. Almost eight months after receiving a reviewing officer's adverse decision concerning the educational placement of their handicapped son, the Schimmels filed suit against the school system pursuant to 20 U.S.C. § 1415(e)(2). The school system moved to dismiss the action on the ground that it was barred by the thirty day statute of limitations. 819 F.2d at 479. The court found that when persons aggrieved by an agency decision bring an action to contest such a decision in a Virginia state court, "the limitations period of the Virginia Administrative Process Act presumably applies." Id. at 481 (emphasis added). Though the court found an action under Code § 22.1-214(D) was analogous to an action under 20 U.S.C. § 1415(e)(2), it refused to apply the thirty day statute of limitations because it found the thirty day limitation period was inconsistent with federal policies. Based on its concern that "many parents of handicapped children may not be represented by counsel in the administrative due process hearings that precede suit under the EHA," the court opined that "requiring unrepresented parties to act in such haste would be unduly harsh, and would undermine the federal policy of permitting review in the federal courts." Id. at 482.

As demonstrated by these federal decisions, uncertainty exists regarding the proper statute of limitations to apply to actions such as the one in this case. While the Nicelys direct us to the federal cases in which a thirty day limitation period was adopted or presumed to be applicable under state law, as in Schimmel, we are not compelled to follow those decisions since they were based on a federal cause of action, 20 U.S.C. § 1415(e)(2).

Contrary to federal case law, there are no Virginia cases directly on point, and only a few assist us in our decision. The most significant Virginia cases relating to the issue before us now are Forbes v. Kenley, 227 Va. 55, 314 S.E.2d 49 (1984), Beasley v. School Bd., 6 Va.App. 206, 367 S.E.2d 738 (1988) (Beasley I ) and School Bd. of Campbell County v. Beasley, 238 Va. 44, 380 S.E.2d 884 (1989) (Beasley II ). The Forbes case provides us with one basis for deciding the one year statute of limitations applies, namely that Code § 22.1-214(D) provides adequate procedure to avoid the preclusive provisions of Code § 9-6.14:16. The Beasley cases provide us with a separate basis for reaching the same conclusion,...