Tokarcik v. Forest Hills School Dist.

Decision Date02 October 1981
Docket NumberNos. 80-2844,s. 80-2844
Citation665 F.2d 443
PartiesAmber TOKARCIK, a minor by Nileleen N. Tokarcik, her parent and natural guardian, and Michael G. Tokarcik, and Nileleen N. Tokarcik, Appellees, v. FOREST HILLS SCHOOL DISTRICT, Robert L. Beyer, Secretary, and Dr. Warren E. Howard, individually and as Supt. of Forest Hills School District and Pennsylvania Department of Education, Dr. Robert Scanlon, Secretary of Education of the Commonwealth of Pa. Appeal of FOREST HILLS SCHOOL DISTRICT, Robert L. Beyer and Robert Anderson, in 80-2844. Appeal of PENNSYLVANIA DEPARTMENT OF EDUCATION and Robert G. Scanlon, Secretary of Education, in 80-2845. /5.
CourtU.S. Court of Appeals — Third Circuit

Gilbert E. Caroff (argued), Johnstown, Pa., for appellants Forest Hills School Dist., Robert L. Beyer, and Robert Anderson.

Ernest N. Helling (argued), Asst. Atty. Gen., Michael A. Davis, Asst. Atty. Gen., Chief Counsel, Mary Kay Kisthardt, Deputy Atty. Gen., Harrisburg, Pa., for appellants Pennsylvania Dept. of Ed. and Robert G. Scanlon.

Edward R. Schellhammer, John D. Gibson, Stephen E. DiNovis, Southern Alleghenys Legal Aid, Inc., Johnstown, Pa., for appellees.

William Fearen, Michael I. Levin (argued), Cleckner & Fearen, Harrisburg, Pa., for amicus curiae, Pa. School Boards Ass'n.

Before ADAMS, ROSENN and HIGGINBOTHAM, Circuit Judges.


ADAMS, Circuit Judge.

We are once again asked to define the rights of handicapped school children and the obligations of school districts, as well as the roles of courts and agencies, under the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq. (hereinafter EAHCA). 1 First, however, it is necessary to decide if an appealable order exists. If so, we must ascertain whether the plaintiffs' claim is timely filed. Once these threshold requirements are satisfied, we are required to determine whether clean intermittent catheterization falls within the statutory definition of "related services" that a school district must provide a handicapped child.


Plaintiff-appellee, Amber Tokarcik, is currently a fourth-grade student in the Forest Hills School District in Cambria County. She was born with spina-bifida, a congenital physical defect, and is paralyzed from the waist down. Because Amber's condition prevents her from emptying her bladder voluntarily, intermittent catheterization is necessary approximately every four hours. In 1976, when Amber entered kindergarten in the regular public school program, her parents, also appellees in this suit, requested the school personnel to perform the necessary catheterization once a day. The Forest Hills School District refused to provide the service. Consequently, some member of Amber's family has gone to the school each day to catheterize. Amber has no mental deficiencies and her educational performance is normal for a child her age.

Prior to the 1977-78 school year, Amber's parents and the school staff attempted to agree upon an appropriate individualized educational program (IEP) for Amber in conformity with the EAHCA, see 20 U.S.C. § 1401(19). Consensus appears to have been reached concerning special transportation to and from school, and an adaptive physical education program. But the continuing impasse over the provision of the clean intermittent catheterization (CIC) services led Amber's parents to request a due process hearing, as provided in the Act. 20 U.S.C. § 1415(b)(2). At the hearing, the school district contended that Pennsylvania law does not require school nurses to catheterize students. Thus, unless a member of Amber's family came to the school to perform the CIC, the district would have to provide Amber with a "special educational placement," 20 U.S.C. § 1401(16), most likely at her home with a tutor. In contrast, Amber's parents presented the testimony of Dr. Lynch, Director of the Bureau of Children's Services in the Pennsylvania Department of Health, who maintained that catheterization is no longer considered a surgical procedure and that the general duties of school nurses would include CIC. The local hearing examiner declared that the school district was not legally required to perform the catheterization services. On appeal, Dr. Kline, then Secretary of Education, upheld the findings and opinion of the local examiner in a decision dated December 22, 1978.

Having exhausted their administrative remedies, the Tokarciks brought suit in the district court against the Forest Hills School District, its secretary and superintendent, the Pennsylvania Department of Education and its Secretary, Dr. Scanlon (hereinafter collectively appellants or school authorities), alleging violations of 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the EAHCA, 20 U.S.C. § 1401 et seq. They requested provision of catheterization for Amber and compensatory and punitive damages. In a memorandum opinion and order of May 19, 1980, the district judge dismissed the § 1983 and Rehabilitation Act claims against the Department of Education as well as the § 1983 damages claim against Secretary Scanlon. No appeal was taken from that order, and the parties proceeded with cross motions for summary judgment on the EAHCA claims. 2

The trial judge, relying exclusively on the administrative record and an additional set of stipulations, granted plaintiffs' motion for summary judgment. The court directed the school authorities to provide CIC services for Amber as long as she remains a student in the Forest Hills district and is in need of such services. In reaching this result, the district court first held that the court action contemplated by the EAHCA was clearly in the nature of a de novo proceeding and not an appeal from an agency decision. Although the complaint had not been filed within the 30 day statutory limit for appeals from administrative determinations, the district court considered that the suit was nevertheless timely under either the two-year or six-year limitations statutes which govern virtually all actions in Pennsylvania.

On the merits, the district judge believed that Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980), controlled the present case. Crediting the Tokarcik's expert Dr. Lynch, who testified that school nurses were qualified to perform catheterization, the court concluded that the provision of CIC would require only a few minutes a day and at most a minimal expenditure of funds. Further, the alternatives to providing CIC-either placement in a special class for the handicapped or at-home instruction-were much more expensive and would violate the mainstreaming principles embodied in the EAHCA. 3 The court thus held that CIC fell within the meaning of a "related service" under the Act, specifically either a "supportive service," as defined in § 1401(17), or a "school health service," as explained in 34 C.F.R. 300.13(a). The trial judge reserved the question of damages and attorney's fees for a later date, and directed further briefing on those aspects of the case by the parties. We affirm.


Before reaching the merits of the case, two hurdles to our ability to hear the present appeal must be surmounted. First, does a final order exist and, if not, is there an interlocutory order over which we can exercise jurisdiction? Both parties initially maintained that the district court's decision of October 31, 1980 was a final order, appealable under 28 U.S.C. § 1291. Scrutiny of the record, however, reveals that the district court directed the appellants to provide Amber Tokarcik with CIC but did not rule on plaintiffs' claims for damages and attorney's fees. App. 52. Thus, the decision of the district court did not dispose of the entire case, and consequently the judgment was not final within the meaning of § 1291. See Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) (a grant of partial summary judgment limited to the issue of liability is by its terms interlocutory and not final within meaning of § 1291); Fireman's Fund Insurance Co. v. Joseph J. Biafore, Inc., 526 F.2d 170 (3d Cir. 1975) (district court order which did not resolve damages claim not appealable under 28 U.S.C. § 1291).

Although litigation with respect to the entire judicial unit has not terminated, Congress, since 1891, has excepted from the finality rule a group of interlocutory orders of an equitable nature. Now codified at 28 U.S.C. § 1292(a), subsection (1) permits appeal from orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to modify or dissolve injunctions...." Because the district court, in partially granting plaintiffs' motion for summary judgment, ordered the school district to provide CIC for the duration of Amber's special education program, we hold that we have appellate jurisdiction to review this interlocutory decision under 28 U.S.C. § 1292(a)(1). An injunction that does not cover all the legal relief a plaintiff seeks is nevertheless a coercive order from which Congress has granted litigants a right to immediate appellate review. See N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 104 (3d Cir. 1979).

Recently, the Supreme Court reiterated that "we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of 'permitting litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.' " See Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981) quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). Yet this language neither alters the congressional directive and policy nor undermines the result we reach here. Carson itself held that an interlocutory order...

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