Vultaggio ex rel. Vultaggio v. Board of Educ.

• Citation: 343 F.3d 598
• Decision Date: 15 September 2003
• Docket Number: Docket No. 02-9110.
• Parties: Robert VULTAGGIO, by his parents and natural guardians, Amy VULTAGGIO, and Robert Vultaggio, Individually and Robert Vultaggio, Individually, Plaintiffs-Appellants, v. BOARD OF EDUCATION, Smithtown Central School District, Stuart Grossman, as Director of Special Education and Individually and Brenda Clark, as Chair of the Committee on Special Education and Individually, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

343 F.3d 598

Robert VULTAGGIO, by his parents and natural guardians, Amy VULTAGGIO, and Robert Vultaggio, Individually and Robert Vultaggio, Individually, Plaintiffs-Appellants, v. BOARD OF EDUCATION, Smithtown Central School District, Stuart Grossman, as Director of Special Education and Individually and Brenda Clark, as Chair of the Committee on Special Education and Individually, Defendants-Appellees.

Docket No. 02-9110.

United States Court of Appeals, Second Circuit.

Argued: August 4, 2003.

Decided: September 15, 2003.

Lewis M. Wasserman, Wasserman Steen LLP, Patchogue, NY, for Plaintiffs-Appellants.

Peter G. Albert, Law Offices of Peter G. Albert, Commack, NY, for Defendants-Appellees.

Before: JACOBS and SOTOMAYOR, Circuit Judges.^*

PER CURIAM.

Plaintiff Robert Vultaggio ("Robert"), a high school student enrolled in the defendant Smithtown Central School District (the "District"), is entitled to benefits under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1490. Robert and his parents appeal from so much of a final order entered in the United States District Court for the Eastern District of New York (Wexler, J.) as dismissed their claim for attorneys' fees under IDEA on the ground that the New York State Complaint Review Procedures ("CRP") used by the plaintiffs to press their entitlement is not an "action or proceeding" within the meaning of IDEA's attorneys' fees provision. We affirm.

I

IDEA affords children with disabilities "a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." Id. § 1400(d)(1)(A). One such benefit is the development of an Individualized Education Plan ("IEP"), which is a written statement — reviewed at least annually, and revised if necessary — that includes a statement of the student's current performance, measurable annual goals, the services to be provided, and criteria for measuring progress. Id. § 1414(d)(1)(A),(d)(4). The District's Committee on Special Education ("CSE") is charged with the development and over-sight of Robert's IEP. See id. § 1414(d)(1)(B),(d)(2)(A); N.Y. Educ. Law § 4402(1)(b)(1).

The Vultaggios were dissatisfied with the IEP developed for the 2001-2002 academic year, chiefly because Robert was not placed in a desired arts program despite an earlier IEP stating that he would be placed in the desired program. They retained counsel and filed a complaint in August 2001 with the New York State Education Department ("SED") pursuant to the CRP. The SED investigated and determined that the IEP violated several provisions of IDEA. The SED's October 17, 2001 decision ordered the District to remedy the deficiencies and develop a new IEP within two months.

The Vultaggios demanded payment from the District under the attorneys' fees provision of IDEA on the grounds that they were prevailing parties in the CRP; but the District refused payment. The CSE did not deliver the new IEP to the Vultaggios until February 8, 2002, well after the deadline set by the SED.

The Vultaggios commenced this action — against the District; Stuart Grossman, the District's Director of Special Education; and Brenda Clark, the Chair of the District's CSE — seeking substantive relief under IDEA (and other statutes) as well as their attorneys' fees as the putative prevailing party in the CRP. The district court dismissed the complaint pursuant to Rule 12(b)(6). The Vultaggios' substantive claims were dismissed for failure to exhaust administrative remedies, Vultaggio ex rel. Vultaggio v. Bd. of Educ., 216 F. Supp.2d 96, 106-07 (E.D.N.Y.2002), a ruling that is not challenged on appeal. The Vultaggios' claim for attorneys' fees was dismissed on the ground that such fees may be collected only by a party prevailing in an "action or proceeding" under IDEA's fee provision, and that a CRP is not such an action or proceeding. See Vultaggio, 216 F. Supp.2d at 103-05.

II

Section 1415 of IDEA provides: "In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C. § 1415(i)(3)(B) (emphasis added). The sole question on appeal is whether a CRP is an "action or proceeding brought under" § 1415.

Two administrative mechanisms are available to parents and children to enforce the guarantees of IDEA: the impartial due process hearing, and the CRP.

A. The Impartial Due Process Hearing

The impartial due process hearing is specifically provided in the text of § 1415(f)(1). Such a hearing is commenced with the presentation of a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," id. § 1415(b)(6), and is "conducted by the State educational agency or by the local educational agency, as determined by State law or by the State educational agency," id. § 1415(f). If the hearing is conducted by a local agency, "any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency." Id. § 1415(g). After the appeal, or if the State educational agency is the initial arbiter of the complaint, an aggrieved party may file a civil action in state or federal court. Id. § 1415(i)(2).

Among the procedural rights in an impartial due process hearing conducted under § 1415 are the rights to present evidence, to confront and compel the attendance of witnesses, to be provided a written or electronic record of the hearing, to appeal, and to be present with counsel. See id. § 1415(g),(h),(i)(2).

More specific procedures and additional rights for the impartial due process hearing are found in the implementing regulations. See 34 C.F.R. §§ 300.500-300.517. These regulations are authorized by 20 U.S.C. § 1415,¹ the section that contains the attorneys' fees provision. The regulations expressly provide for the recovery of attorneys' fees. See 34 C.F.R. § 300.513

B. The CRP

Aggrieved parents and children who wish to avoid or postpone an impartial due process hearing have the option of starting a CRP. The CRP is mentioned nowhere in the text of IDEA. It is a creature of the regulations that require a State Educational Agency ("SEA") to adopt written procedures for resolving a complaint alleging that a public agency has violated either IDEA or the CRP regulations. See id. §§ 300.660-300.662. The regulations creating the CRP are promulgated pursuant to 20 U.S.C. § 1221-e, the general delegation of rulemaking authority to the Secretary of Education — not pursuant to IDEA itself.

The CRP regulations require the SEA (within 60 days, absent exceptional circumstances) to make an independent on-site investigation (if necessary), to give the complainant the opportunity to submit additional facts, to determine independently whether the public agency is in compliance, and to issue a written decision with factual findings and an explanation for its conclusion. See 34 C.F.R. § 300.661(a). The SEA must also set out procedures for effectively implementing its decisions. Id. § 300.661(b)(2).

The CRP process is relatively informal: an SEA is not required to provide the detailed procedural safeguards mandated under IDEA for impartial due process hearings. And there is no avenue of appeal from an unfavorable SEA decision (though an impartial due process hearing remains an option: the Vultaggios commenced an impartial due process hearing during the pendency of the case. See Vultaggio, 216 F. Supp.2d at 107).

The CRP is an optional step toward binding relief. Once a due process hearing is convened on issues that were made the subject of a CRP, the SEA may no longer act on those issues, and the decision reached in the due process hearing is binding. See 34 C.F.R. § 300.661(c). By regulation, a public agency (as well as a parent or child) may initiate a due process hearing. See 34 C.F.R. § 300.507(a). The impartial due process hearing and an appeal from the resulting decision are prerequisites for a civil action. See 20 U.S.C. § 1415(i)(2).

The CRP regulations do not mention attorneys' fees.

III

Our review of the district court's decision is de novo. See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998). The parties agree that attorneys' fees are available under 20 U.S.C. § 1415(i)(3)(B) to parents who prevail in an impartial due process hearing, because that proceeding is incontestably an "action or proceeding brought under [§ 1415]." The Vultaggios contend, however, that the CRP is also a qualifying "proceeding." They rely principally on the Ninth Circuit decision in Lucht v. Molalla River School District, 225 F.3d 1023 (9th Cir.2000), which is the only circuit court decision that considers this issue. We disagree with Lucht and concur with Judge Wexler's conclusion that a CRP is not a "proceeding" within the meaning of § 1415(i)(3)(B). We therefore need not decide whether the Vultaggios' were in fact the prevailing parties in the CRP.

"In the United States, parties are ordinarily required to bear their own attorney's fees ... absent explicit statutory authority" to seek such fees from the losing party. Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (internal quotation marks and citations omitted). We therefore look first to the relevant text of IDEA, which, in our view, is decisive.

Section 1415(i)(3)(B) authorizes an award of attorneys' fees in "any action or proceeding brought under this section." 20 U.S.C. § 1415(i)(3)(B). The phrase "brought under this section" refers to actions and proceedings "brought under § 1415." See Lucht, 225 F.3d at 1028. A "proceeding brought under" § 1415 is a proceeding established by or referenced in § 1415. See Megan C. v. Indep. Sch. Dist. No. 625, ...