Vultaggio v. Bd. of Educ., 072903 FED2, 02-9110

Docket Nº:02-9110
Party Name:Vultaggio v. Bd. of Educ.
Case Date:July 29, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

ROBERT VULTAGGIO, by his parents and natural guardians, AMY VULTAGGIO, and ROBERT VULTAGGIO, Individually and ROBERT VULTAGGIO, Individually, Plaintiffs-Appellants,


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.

Case No. 02-9110

United States Court of Appeals, Second Circuit

July 29, 2003

Argued: August 4, 2003

Appeal from a final order entered on August 20, 2002 in the United States District Court for the Eastern District of New York (Wexler, J.), dismissing, inter alia, plaintiffs' claim for attorneys' fees under the Individuals With Disabilities Education Act ("IDEA"), on the ground that the New York State Complaint Review Procedure ("CRP") utilized by the plaintiffs is not an "action or proceeding" within the meaning of IDEA's attorneys' fees provision. Affirmed.

LEWIS M. WASSERMAN, Wasserman Steen LLP, for Plaintiffs-Appellants.

PETER G. ALBERT, Law Offices of Peter G. Albert, for Defendants-Appellees.

Before: JACOBS and SOTOMAYOR, Circuit Judges. [*]


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 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.


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 oversight 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. [A98] They retained counsel and filed a complaint in August 2001 with the New York State Education Department ("SED") pursuant to the CRP. [A98-99] 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. [A100-01, 103]

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. [A 102] The CSE did not deliver the new IEP to the Vultaggios until February 8, 2002, well after the deadline set by the SED. [A102]

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,...

To continue reading